MasTec North America, Inc., successor of Weeks Construction, Inc.

Plain-English summary

A MasTec employee was fatally electrocuted while removing slack from an energized 7,200-volt utility line after the cut ends swung into his body. OSHA alleged that the employee worked inside the minimum approach distance without adequate insulation, even though he wore voltage-rated gloves and sleeves. The Commission held that the standard's plain language treated those gloves and sleeves as insulation and therefore vacated the violation of 29 C.F.R. § 1926.950(c)(1). The judge had not decided the Secretary's alternative general-duty-clause theory or whether the specific standard preempted that theory. The Commission remanded for briefing and findings on those questions.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.950(c)(1) and 1926.950(c)(2); 29 U.S.C. § 654(a)(1)
• Outcome: The minimum-approach-distance violation was vacated, and the alternative general-duty-clause claim was remanded.
• Key point: When a standard expressly treats rated gloves and sleeves as insulation, the Secretary cannot impose additional insulation through that provision's interpretation, but a distinct general-duty claim may still require separate analysis.

Full text (OSHRC public release)

Mastec,North America Inc., Docket No. 99-0252

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EN-US
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SECRETARY OF
LABOR,

Complainant,

v.

OSHRC
Docket No. 99-0252

MASTEC, NORTH AMERICA, INC.,SUCCESSOR OF
WEEKS CONSTRUCTION, INC.,

Respondent.

DECISION

Before:
RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.

BY
THE COMMISSION:

As
a result of an inspection of MasTec, North America, Inc.’s (“MasTec”) work
site, the Occupational Safety and Health Administration (“OSHA”) issued a
citation alleging that MasTec had committed a serious violation of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“the Act”).
The Secretary charged MasTec with a violation of 29 C.F.R. §
1926.950(c)(1), which requires employees to observe a minimum working distance
from uninsulated energized parts. MasTec contested the citation, and a hearing
was held before Administrative Law Judge Ken S. Welsch, who affirmed a serious
violation. The Commission directed the judge’s decision for review pursuant to
section 12(j) of the Act, 29 U.S.C. § 661(j). For the reasons that follow, we
reverse the judge’s disposition affirming a serious violation of section
1926.950(c)(1), and remand the case to the judge for consideration of the
Secretary’s alternative charge under section 5(a)(1) of the Act, 29 U.S.C. §
654(a)(1).

Background

MasTec
is in the business of electrical utility line construction and repair, and at
the time of the inspection was under contract with the Central Alabama Electric
Cooperative to upgrade existing single-phase power lines to three-phase power
lines. The work was conducted with the lines energized. The energized line at
issue was 7,200 volts phase to ground, with current ranging from 15 to 32
amperes. On August 24, 1998, a MasTec employee was moving an old phase line to
an adjacent new 50-foot pole along New Quarters Road, Tallassee, Alabama when
he was fatally electrocuted.

Under
MasTec’s procedure for upgrading power lines, employees set new utility poles
and then move the line from the old pole to the new pole. When the line is
transferred to the new pole, there is normally some “slack” in the line that
needs to be removed. Working from an insulated bucket, a lineman wearing
insulated gloves with sleeves rated for the voltage attaches a hoist with cable
grabs to the line. The hoist allows the lineman to jack up the excess line,
forming a loop. The lineman then connects a mechanical jumper, a device that
allows current to bypass the part of the line being worked on to continue
service to customers, to either side of the jacked-up line. The lineman then
secures both sides of the loop to the hoist with rope or tape before using
insulated cutters to cut one side of the loop within several inches from where
it is secured while holding the other side of the loop with the other gloved
hand. After cutting out the loop, the lineman splices the line. Finally, the
lineman removes the mechanical jumper and the hoist, completing the procedure.

On
the morning of August 24, 1998, the deceased employee was working from inside
an insulated bucket and wearing insulated gloves with sleeves rated for the
voltage involved while working on an energized line. The deceased employee did
not attach a mechanical jumper to the energized line and did not secure the
sides of the loop to the hoist. After he cut the loop, both ends of the cut
line swung loose and made contact with his body. The employee died as a result
of the contact.

After
investigating the accident, the Secretary issued a citation alleging that
MasTec violated 29 C.F.R. § 1926.950(c)(1) because the deceased employee was
working within the allowed minimum working distance without adequate
protection. Prior to the hearing, the judge granted the Secretary’s motion to
amend her Complaint to allege in the alternative a violation of section 5(a)(1)
of the Act, commonly referred to as the general duty clause. At the hearing,
the judge granted the Secretary’s motion to amend her Complaint to also allege
in the alternative a violation of 29 C.F.R. § 1926.950(c)(2). In his decision
and order, the judge affirmed a serious violation of section 1926.950(c)(1),
and saw no need to discuss the Secretary’s alternative allegations under
section 5(a)(1) and section 1926.950(c)(2).

Discussion

In
affirming a serious violation of section 1926.950(c)(1), the judge concluded
that the standard required additional protective equipment – beyond the gloves
or gloves with sleeves identified in paragraph (i) of the standard, which
MasTec’s employees were wearing. The judge relied on the definition of
“insulated” as provided in 29 C.F.R. § 1926.960(ff) and an interpretation letter cited by the Secretary to find that
compliance with section 1926.950(c)(1) required more than gloves with sleeves.
On review, the Secretary argues that the judge “correctly adopted [her]
reasonable interpretation of the standard,” and “correctly found [that] MasTec
was required to provide employees with additional insulation.

We
disagree. The parenthetical language in paragraph (i) of section 1926.950(c)(1)
is plain: “gloves or gloves with sleeves rated for the voltage involved shall
be considered insulation of the employee from the energized part[.]” Because
this language is clear and unambiguous, it is unnecessary to look beyond the
standard itself. See, e.g. , Unarco Commercial Prods. , 16 BNA OSHC
1499, 1502-03, 1993-95 CCH OSHD ¶ 30,294, pp. 41,732-33 (No. 89-1555, 1993); Kiewit
West. Co. , 16 BNA OSHC 1689, 1693-94, 1993-95 CCH OSHD ¶ 30,396, pp.
41,940-41 (No. 91-2878, 1994). The Secretary argues that the definition of
“insulated” requires insulation of an object in a “suitable manner for the
conditions . . . Otherwise, it is within the purpose of this subpart,
uninsulated.” In light of this definition, she claims that it is unreasonable
to interpret the parenthetical to provide that the employee was “insulated”
under the circumstances here. The flaw with the Secretary’s argument is that it
was the Secretary herself who explicitly provided in the parenthetical to the
standard that gloves or gloves with sleeves “shall be considered insulation of
the employee from the energized part.”

The
Secretary also cites to a December 12, 1977 interpretation letter to support
her argument that the standard requires more than gloves with sleeves. Even if
we were to assume arguendo that it was necessary to consider the
December 12, 1977 interpretation letter, our holding would not change. The
letter states: “The example in parenthesis is one way of complying with the
standard on certain limited exposures. There may be other personal
protective equipment used and other exposures to the employee.” (Emphasis
added.) This letter is not only vague, but cannot override the plain meaning of
the provision’s parenthetical. Because MasTec’s employees wore gloves with
sleeves, we find that a violation of section 1926.950(c)(1) has not been
established. Accordingly, we vacate the citation insofar as it alleges a
violation of section 1926.950(c)(1).

At
the hearing, the Secretary advanced the alternative claim that MasTec violated
the general duty clause, section 5(a)(1) of the Act, which MasTec maintained
was preempted by section 1926.950(c)(1). In view of his finding of a violation
of the cited standard, the judge held “there was no need to discuss” the
section 5(a)(1) claim, and in directing review, the Commission sought briefing
on the sole issue on which MasTec petitioned for review, namely, whether the
judge erred in finding a violation of the minimum clearance regulation. Thus, in the present posture of the case, there are no factual
findings or conclusions on the merits of the section 5(a)(1) allegation, nor do
we have the benefit of a judge’s decision and the parties’ briefing on the
threshold question of whether under the facts the general duty clause is
preempted by section 1926.950(c)(1). Under these circumstances, we believe a
remand is warranted.

The parties did devote portions of their briefs before
the Commission to the preemption issue. The Secretary urged that the general
duty clause is not preempted under the authority of UAW v. Gen. Dynamics
Land Sys. Div. , 815 F.2d 1570, 1577 (D.C. Cir. 1987), cert. denied ,
484 U.S. 976 (1987), a case that examined whether 29 C.F.R. § 1910.1000(a)-(d),
governing exposure to specific air contaminants, should be given preemptive
effect under the particular facts. In its reply brief, MasTec counters, first,
that the issue is not properly before the Commission since the briefing order
directing review was limited only to the merits of the alleged section
1926.950(c)(1) violation and, second, that the cited provision does preempt a
section 5(a)(1) allegation since the regulation specifically addresses electric
shock hazards, citing principally Sawnee Elec. Member. Corp. , 5 BNA OSHC
1059, 1977-78 CCH OSHD ¶ 21,560 (No. 10277, 1977).

However, we find that the parties’ briefs, in
addressing an issue for which the Commission admittedly did not direct specific
review, provide an inadequate basis on which to decide the significant question
of preemption. The parties are ships passing in the night in the sense that
neither attempts to distinguish the case authorities cited by the other. In
addition, the parties have overlooked other decisions (some intervening) that
may have either direct or indirect relevance on the principles governing the
preemption of general duty clause claims by specific regulations. See, e.g. ,
Mississippi Power & Light Co. , 7 BNA OSHC 2036, 1979 CCH OSHD ¶
24,146 (No. 76-2044, 1979); Ted Wilkerson, Inc. , 9 BNA 2012, 1981 CCH
OSHD ¶ 25,551 (No. 13390, 1981) (and cases cited therein); Daniel Int’l,
Inc. , 10 BNA OSHC 1556, 1982 CCH OSHD ¶ 26,033 (No. 78-4279, 1982) (citing Mississippi
Power & Light Co. , supra ); Morrison-Knudsen Co./Yonkers Contracting Co. , 16 BNA OSHC 1105, 1993-95 CCH OSHD ¶ 30,048 (No.
88-572, 1993); New York State Elec. & Gas Corp. , 17 BNA OSHC 1129,
1993-95 CCH OSHD ¶ 30,745 (No. 91-2897, 1995), aff’d in relevant part ,
88 F.3d 98 (2d Cir. 1996). A more thorough analysis of the caselaw is required,
taking into account whether certain authorities have been impliedly affirmed,
narrowed, overruled, or otherwise modified by subsequent decisions.
Accordingly, we direct the judge to request briefs from the parties addressing
whether under the facts of this case the general duty clause is preempted by
section 1926.950(c)(1), and if not, whether the Secretary has established a
violation of section 5(a)(1) of the Act.

Our dissenting colleague objects to our remand order
on three grounds. First, he claims that we are ignorant of the fact that the
entire record, including the judge’s decision, is before the Commission for
review and therefore, we are in a position to decide the merits of what he
considers to be the purely legal question raised by the Secretary’s alternative
allegation. Second, he argues that the merits of this question are readily
resolvable against the Secretary, given his view that the hazard here is
“potential electrocution,” which he believes is “precisely” the hazard covered
by section 1926.950(c)(1). Finally, he chides us for unnecessarily delaying
final resolution of this case and committing a disservice to the parties and to
the regulated community. We beg to differ on all counts.

Our colleague argues that the Commission should decide
without remand whether the general duty clause was violated here, claiming that
the question is one “of law and nothing else.” This is an oversimplification.
Our remand order calls upon the judge to decide at least one, potentially two,
issues – whether the general duty clause is preempted by section 1926.950(c)(1)
and, if not, whether the Secretary has established a violation of the general
duty clause. While the first issue is primarily a question of law, its
resolution also depends upon the nature of the hazard or hazards at issue – a
factual question. If reached, the second issue involves both questions of fact
and law. The better course is for the judge, who did not consider the merits of
the Secretary’s alternative theory under the general duty clause, to decide
these questions in the first instance, particularly where the issues were not
raised in the Commission’s briefing notice to the parties as issues to be
decided on review. See Gen. Dynamics Corp., Elec. Boat Div. , 15
BNA OSHC 2122, 2131, 1991-93 CCH OSHD ¶ 29,952, pp. 40,960-61 (No. 87-1195,
1993) (remand to judge for factual determinations since Commission judge
ordinarily resolves factual issues first). While we are quite aware that
Commission Rule 92 grants us plenary jurisdiction to review an entire case,
this same Rule authorizes the Commission not to decide issues that are
not directed for review, a point that the dissent overlooks. Commission Rule
92(a) and (c), 29 C.F.R. §§ 2200.92(a) and (c); Tampa Shipyards, Inc. ,
15 BNA OSHC 1533, 1535 n.4, 1991-93 CCH OSHD ¶ 29,617, p. 40,097 n.4 (No.
86-360, 1992) (consolidated) (“Ordinarily the Commission does not decide issues
that are not directed for review.”). Accord Well Solutions, Inc. ,
17 BNA OSHC 1211, 1212 n.1, 1993-95 CCH OSHD ¶ 30,750, p. 42,717 n.1 (No.
91-340, 1995); Sal Masonry Contractors, Inc. , 15 BNA OSHC 1609, 1609
n.1, 1991-93 CCH OSHD ¶ 29,673, p. 40,206 n.1 (No. 87-2007, 1992).

Our colleague finds that preemption of the general
duty claim is compelled by what he describes as the hazard in this case –
“potential electrocution” – which he maintains is “precisely” the hazard
covered by section 1926.950(c)(1). While it is true that this provision does
address, broadly speaking, the hazard of electrocution, the dissent is overly
simplistic in its description of the alleged hazard and its discussion of the
regulation’s coverage. Specifically, our colleague ignores the Secretary’s more
refined contention that section 1926.950(c)(1) does not completely address the
unique conditions over which MasTec had control and under which the work in
question here was performed.

Finally, our colleague’s notion that it is a
“disservice” to remand for a decision on the merits of the general duty clause
allegation ignores the Commission’s obligation “to avoid injustice [and] ensure
that judgment will be rendered in accordance with the law and facts.” See Rule
92(c).

Order

The
judge’s decision affirming a serious violation of 29 C.F.R. § 1926.950(c)(1) is
reversed, and the case is remanded for further proceedings consistent with this
decision.

SO
ORDERED.

/s/

James
M. Stephens

Commissioner

/s/

Thomasina
V. Rogers

Commissioner

Dated: August 2, 2004

RAILTON,
Chairman, dissenting in part:

I agree with my
colleagues that section 1926.950(c)(1) is applicable in this case and that the
Respondent complied with the standard. I also agree that the Respondent did not
violate section 1926.950(c)(2). I disagree, however, with their decision to
remand this case to the judge to determine whether the general duty clause was
violated. The issue presented for decision is one of law and nothing else.

They acknowledge
that Rule 92 grants the Commission plenary jurisdiction to review the entire
case but decided not to review whether section 1926.950(c)(1) was preempted by
the general duty clause. They fail to recognize, however, that the order directing
review in this case was open-ended and was sufficient to put the issue directly
before the Commissioners.

They also state
that the parties have failed to adequately brief the issue. They claim that the
“parties are ships passing in the night in the sense that neither attempts to
distinguish the case authorities cited by the other.” However, the Secretary clearly states in her brief that the Respondent
should have provided more protection than what the standard actually required
in this case. She clearly wants a decision finding that the general duty clause
should be used to extend the abatement requirements of section 1926.950(c)(1).
She states that the Respondent was obligated “to provide additional insulation
because the gloves and sleeves did not adequately protect” employees from the
energized lines. What she asks the Commission to do is directly contrary to the
legislative history of the Act. In reporting out an earlier version of the
general duty clause, the Senate Labor and Public Welfare Committee report
stated as follows:

The general duty clause in this bill would
not be a general substitute for reliance on standards, but would simply enable
the Secretary to ensure the protection of employees who are working under
special circumstances for which no standard has yet been adopted.

S.
Rep. No. 91-1282, 91st Congress, 2d Sess. (1970), reprinted in Senate
Comm. on Labor and Public Welfare, 92 Cong., 1st Sess., Legislative History
of the Occupational Safety and Health Act of 1970 , at 150 (1971).

The Secretary’s
request that the Commission improperly apply the general duty clause is also
contrary to a plethora of Commission precedent, originating from the earliest
days of enforcement of the Act, to the effect that the general duty clause is
not applicable when a standard specifically covers the hazard at issue. See
New York State Electric & Gas Corp. , 17 BNA OSHC 1129, 1993-95 CCH
OSHD ¶ 30,745 (No. 91-2897, 1995), aff’d in relevant part , 88 F.3d 98
(2d Cir. 1996); Copperweld Steel Co., 11 BNA OSHC 2235, 1984 CCH OSHD
¶ 27,039 (No. 80-7330, 1984); Mississippi Power & Light Co. , 7
BNA OSHC 2036, 1980 CCH OSHD ¶ 21,146 (No. 76-2044, 1979); Sawnee Elec.
Member. Corp. , 5 BNA OSHC 1059, 1977-78 CCH OSHD ¶ 21,560 (No. 10277,
1977); Sun Shipbuilding & Drydock Co. , 1 OSHC 1381, 1973 CCH OSHD
¶ 16,725 (No. 161, 1973). In her reply brief, she cites the problem as one
of insufficient protective garments for employees exposed to the voltage
involved in this case. If more protective gear is required, the Secretary
should amend her standards to impose additional requirements.

I note, in this regard, that the issue has been before
the Commission since the mid 1970’s, and apparently nothing has been done to
amend the standard. See Sawnee Elec. Member. Corp , supra ; Mississippi
Power & Light , supra ; Utilities Line Constr. Co ., 4 BNA
OSHC 1681, 1976 CCH OSHD ¶ 21,098 (No. 4105, 1976).

The Secretary relies on UAW v. Gen. Dynamics Land
Sys. Div. , 815 F.2d 1570 (D.C. Cir. 1987), cert. denied , 484 U.S.
976 (1987) and my colleagues mention other decisions in their opinion in which
the general duty clause has been used when a standard did not cover multiple
hazards. General Dynamics presented both a toxic atmospheric hazard and
a confined space hazard. In Ted Wilkerson, Inc ., 9 BNA OSHC 2012, 1981
CCH OSHD ¶ 15,551 (No. 13390, 1981), an employee was exposed to a crushing
hazard as well as the hazard of falling from a height, each of which could have
caused death or serious physical harm. In other words, the case law
demonstrates the existence of two totally distinct serious recognized hazards
in those rare situations where an employer has been found to have violated the
general duty clause.

This
case is easily distinguished. The hazard is the same regardless of the method
the employee used to shorten the energized line. It is a hazard of potential
electrocution, and that is precisely the hazard covered by section
1926.950(c)(1).

There is absolutely no need to remand this case to
decide an issue that the sitting Commissioners can and should decide. My
colleagues’ order unnecessarily delays the final resolution of this matter and
is a disservice to the parties and the regulated community.

/s/

W.
Scott Railton

Chairman

Dated:
August 2, 2004

Secretary of Labor,

Complainant,

v.

OSHRC Docket No. 99-0252

MasTec North America, Inc.,

Successor od Weeks Construction, Inc.,

Respondent.

APPEARANCES

Kathleen
G. Henderson, Esq.                                        G.
Paris Sykes, Jr., Esq.

Office
of the Solicitor                                     
          Kilpatrick
Stockton, L.L.P.

U.
S. Department of
Labor                                           Atlanta,
Georgia

Birmingham,
Alabama                                                                For
Respondent

For
Complainant

Before: Administrative Law Judge Ken S. Welsch

DECISION AND
ORDER

MasTec
North America, Inc. (MasTec), a successor of Weeks Construction, Inc.,
contracted to upgrade a single-phase power line to a new three-phase line in
rural central Alabama. On August 24, 1998, an employee was fatally
electrocuted while removing slack from an energized primary line. As a result
of the accident, the Occupational Safety and Health Administration (OSHA)
conducted an investigation and issued a serious citation on January 5, 1999.
MasTec timely contested the citation.

The
citation alleges that MasTec violated 29 C.F.R. § 1926.950(c)(1) by permitting
an employee to approach or take a conductive object closer than two feet of an
energized 7,200-volt power line without adequately insulating the employee or
all energized parts. The citation proposes a penalty of $7,000. Based on the
same factual allegation, the Secretary amends the citation to plead, in the
alternative, violations of 29 C.F.R. § 1926.950(c)(2) and the general duty
clause at § 5(a)(1) of the Occupational Safety and Health Act (Act).

The
parties stipulate jurisdiction and coverage (Tr. 5). The hearing was held in
Montgomery, Alabama, over nine days in July and August, 1999. The parties filed
post-hearing briefs.

MasTec
argues that it complied with the standards and was not in violation of the
general duty clause, § 5(a)(1) of the Act, because the employee was wearing
insulated gloves and sleeves rated for the voltage. If a violation is found,
MasTec alleges that it was due to unpreventable employee misconduct. MasTec
asserts that the employee, prior to cutting the line, failed to install a mechanical
jumper, secure the loop, and properly cut the loop as required by its work
rules.

For
the reasons discussed, a violation of § 1926.950(c)(1) is affirmed.

The Accident

Weeks
Construction, Inc., was engaged in the business of electrical utility line
construction and repair. It employed approximately 2,200 employees. MasTec,
also engaged in the business of electrical utility line construction and
repair, purchased Weeks in January, 1999. There is no dispute that MasTec is the
successor of Weeks Construction (Parties’ Stipulations; Tr. 62, 70, 273-275,
1008, 1853).

On
June 26, 1997, MasTec contracted with Central Alabama Electric Cooperative to upgrade the
existing power lines for its 32,000 customers in central Alabama. The upgrading
involved replacing poles and changing from a single-phase line to a new,
three-phase line. The contract required that “[A]ll work will be performed with
lines energized” (Exh. C-1; Tr. 43-44, 46, 74).

During
the performance of the contract, MasTec hired the crew of Dale Mims, foreman,
Randy Latham, first-class lineman, and Shannon Beam, equipment operator, on May
4, 1998. Mims, Latham and Beam had been working for a local competitor (Tr. 89,
647, 1151-1152). Beam’s employment application showed previous work (7 years)
as a foreman for a high-line crew removing overhead tree limbs on or around
energized lines (Exh. R-9; Tr. 243, 648, 1411).

Although
hired as an equipment operator, Beam immediately began working as an apprentice
lineman assisting Latham (Exh. R-6; Tr. 89, 91, 96, 1147, 1292). Beam assisted
Latham for approximately 16 weeks (work week ending August 1, 1998) upgrading
the power lines along Culley Road and Dark Corner Road, Tallassee, Alabama
(Exhs. R-2, R-3, R-6; Tr. 1293). Approximately three weeks prior to the
accident, Latham moved to another crew and Beam continued the lineman work
alone under the supervision of crew foreman Mims (Tr. 1147, 1293).

On
August 24, 1998, the crew, consisting of foreman Mims, Beam, Jason Edward,
operator, and Bruce Lockhart, groundsman, was working along New Quarters Road,
Tallassee, Alabama (Tr. 1320-1321, 1323). The crew was joined by David
Webb, superintendent, who was observing the crew for the week because of the
crew’s low production (Tr. 75-76, 127-128, 1322, 2035).
           New Quarter
Road is a rural two-lane road, and the power lines serve homes, farms, well
pumps and barns (Tr. 58-59). The parties stipulate that the energized line was
7,200 volts, phase to ground (Tr. 9). Bruce Baker, vice president of
engineering for Central Alabama Electric Cooperative, estimated that the
current ranged from 15 to 32 amperes (Tr. 49-51).

The
facts surrounding the accident are not in dispute. Shannon Beam, 25 years old,
was assigned to move the old phase line from Pole # 8 to the adjacent new
50-foot pole (Exh. R-5; Tr. 144, 1324-1325). The operation required
removing slack from the line once it was moved (Tr. 146). After explaining
the work assignments, foreman Mims left the site and drove to the power company
to obtain other material. Mims asked superintendent Webb to watch Beam (Tr.
1324-1325).

To
remove slack from a line, MasTec describes its procedure as the lineman,
working from an insulated bucket and wearing insulated gloves and sleeves rated
for the voltage, first attaches a hoist or come-along with cable grabs to the
line. The come-along permits jacking up the excess line. A mechanical jumper is
attached on either side of the jacked-up portion of the line. The mechanical
jumper allows current to bypass the area of the line on which the lineman is
working in order to continue customer service. When the line is jacked up, the
excess line always forms a loop. Based on the tension and nature of # 4 ACSR, the loop’s configuration and location are unpredictable (Exh. C-3).
After a loop is formed, the sides of the loop are tied to the come-along on
both sides. Using insulated cutters, one side of the loop is cut within several
inches of where it is tied. The other side of the loop is held by the lineman
to prevent it from swinging loose until it is also cut. After cutting out the
loop, the remaining line is sleeved with insulation and spliced. The mechanical
jumper and come-along are removed and the procedure is complete (MasTec’s
Brief, p. 5-6; Exh. C-10; Tr. 590, 1165-1166).

While
Shannon Beam was removing slack from the energized line at Pole # 8, Edward and
Lockhart were setting poles two spans (approximately 400 feet) away (Tr.
110-111, 1446). Beam was working from inside an insulated aerial bucket, and he
was wearing insulated gloves and sleeves rated for the voltage. Beam failed to
attach a mechanical jumper to the energized line, tie the sides of the loop to
the line, or prevent the cut ends from swinging loosely. Superintendent Webb,
who was the only person present during the accident, testified that after the
loop was formed, he took his eyes off Beam for five seconds to reach for a
telephone when he heard the arcing sound. When he looked back, the loop had
been cut and both ends of the cut line had contacted Beam’s body. The accident
occurred at approximately 8:00 a.m. (Exhs. C-2, C-16; Tr. 9-10, 203, 205, 208,
995, 1421, 1438, 1457). It was reported to OSHA at 4:30 p.m. (Tr. 991).

OSHA
Compliance officer David Gilreath initiated the inspection on August 25, 1998
(Tr. 999). As a result of the inspection, MasTec received the serious
citation.

Discussion

The
Secretary has the burden of proving a violation.

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability of the
cited standard, (b) the employer’s noncompliance with the standard’s terms, (c)
employee access to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation ( i.e., the employer either knew
or, with the exercise of reasonable diligence could have known, of the
violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131,
2138 (No. 90-1747, 1994).

Alleged
Violation of § 1926.950(c)(1)

The
citation alleges that on August 24, 1998, an employee who was within two feet
of an energized power line (7,200 volts) was fatally injured while removing the
slack from the line. Section 1926.950(c)(1) provides that:

No employee shall be permitted to approach or take any conductive object
without an approved insulating handle closer to exposed energized parts than
shown in Table V-1 unless;

(i) The employee is insulated or guarded from the energized part (gloves
or gloves with sleeves rated for the voltage involved shall be considered
insulation of the employee from the energized part), or

(ii) The energized part is insulated or guarded from him and any other
conductive object at a different potential, or

(iii) The employee is isolated, insulated, or guarded from any other conductive
object(s), as during live-line bare-handed work.

Beam
was exposed to an electrical hazard of 7,200 volts and his work, which involved
removing slack from an energized line, was within the minimum-approach distance
requirements of § 1926.950 (Tr. 23, 28). The line voltage, according to Table V-1 in § 1926.950(c)(1), requires in general that
the employee remain two feet from exposed energized parts unless the employee
or energized part is isolated, insulated or guarded. The parties agree that, as
part of MasTec’s slack- removing procedure, a loop is always formed (Tr. 30,
251, 1368). The loop is not covered with insulation (Tr. 251). The size of the
loop may range from 6 inches to 6 feet, depending upon the amount of line to be
removed (Tr. 1450).

The
Secretary contends that during MasTec’s slack-removing procedure, the employee
works within two feet of the loop without being fully protected at the chest
and body. The Secretary does not dispute that Beam was wearing insulated gloves
and sleeves and was working from inside an insulated aerial bucket. There is no
allegation that the insulated gear or equipment was defective or inappropriate
for the voltage (Tr. 525, 1104). However, the nature of the loop and its
unpredictability, according to the Secretary, exposed the unprotected portions
of the employee’s body to an electrical hazard within the minimum-approach
distance.

Application of § 1926.950(c)(1)

If
within the minimum-approach distance, § 1926.950(c)(1) requires isolating,
insulating or guarding the employee or the energized part and other conductive
objects (Tr. 1984). As an exception, MasTec has the burden of proving that the
employee was properly insulated or guarded from the loop during its
slack-removing procedure. The party seeking the benefit of an exception has the
burden to show that it is in compliance. Armstrong Steel Erectors, Inc .,
17 BNA OSHC 1385, 1389 (No. 92-262, 1995).

There
is no dispute that Beam was working within the two-feet minimum-approach
distance when removing the slack. Therefore, the requirements of §
1926.950(c)(1) applied to Beam’s work. Having found that § 1926.950(c)(1)
applied, there is no need to discuss the alternative alleged violations of §
1926.950(c)(2) or § 5(a)(1) of the Act. See 29 C.F.R. § 1910.5; McNally
Construction & Tunneling Co ., 16 BNA OSHC 1879, 1880 (No. 90-2337,
1994).

Noncompliance With § 1926.950(c)(1)

There
is no dispute that an employee was electrocuted when the ends of a cut,
energized power line contacted uninsulated portions of his body. At the time of
the accident, Beam was attempting to remove slack from the line. He was working
within the two-foot minimum-approach distance without insulation on the line or
protection for the exposed portions of his body. When Beam cut the line, the ends
of the line involuntarily recoiled and bounced. One end of the line struck Beam
on the chest and the other end struck him on the hip. MasTec does not dispute
the facts surrounding the accident (Exh. C-16, MasTec’s “Accident Investigation
Report”).

MasTec
asserts that it was in compliance with § 1926.950(c)(1) because Beam was
wearing insulated gloves and sleeves, in accordance with subsection (i) of the
standard. He was, according to MasTec, insulated from the energized line when
removing slack.

The
Secretary contends that the parenthetical phrase in subsection (i) of §
1926.950(c)(1), “(gloves or gloves with sleeves rated for the voltage involved
shall be considered insulation of the employee from the energized part)”
applies to insulating the employee from the energized part on which the
employee is actually performing hands-on work. Gloves and sleeves may be
sufficient with respect to some exposures but insufficient under other
conditions, such as the energized loop formed during MasTec’s slack-removing
procedure. In this case, the loop was not controlled and, when cut by Beam, his
unprotected body was exposed to the ends of the cut line. The gloves and
sleeves did not provide insulation.

“Insulated”
is defined in part at § 1926.960(ff) as:

separated from other conducting surfaces by a dielectric substance
(including air space) offering a high resistance to the passage of current.

NOTE: When any object is said to be insulated, it is understood to be
insulated in suitable manner for the conditions to which it is subjected.
Otherwise, it is within the purpose of this subpart, uninsulated.

The
Commission, in applying a standard, interprets its wording in a reasonable
manner consistent with a common sense understanding. Globe Industries, Inc. ,
10 BNA OSHC 1596, 1598 (No. 77-4313, 1982). The words are viewed in context and
judged in light of its application to the facts of the case. Ormet Corp.,
14 BNA OSHC 2134, 2135 (No. 85-531, 1991). A safety standard is generally
construed liberally to allow broad coverage in providing employees safe and
healthful working conditions. A reasonable interpretation by the Secretary is
entitled to substantial deference.

In
this case, the record is clear that the energized loop was not insulated or
guarded prior to cutting (Exh. C-2). MasTec asserts that insulating the line
was not feasible (Tr. 252, 1025, 1211, 1522). If insulation of the energized
part is not practical, the standard requires insulation or guarding of the
employee, not just hands and arms, which come within the minimum-approach
distances of the energized part. The parenthetical phrase in subsection (i)
must be construed in view of the terms of the statement to which it refers -
“The employee is insulated or guarded from the energized part.” Implicit in the
parenthetical phrase is the understanding that the potential exposure is
limited to the hands and arms. Protective measures, such as insulated gloves,
may be sufficient for some exposures but not sufficient in other situations,
such as a large energized, uninsulated and uncontrolled loop which is cut.

The
Secretary’s broader interpretation is reasonable in view of the purpose of the
standard. The Secretary has stated in two interpretive letters that “the intent
of the standard is to insulate or guard the employee [from] the energized part.
. . . The example in the parentheses is one way of complying with the standard
on certain limited exposures ” (emphasis added) (Exhs. C-12, C-13).
 The purpose of the standard is to protect an employee from exposure to
energized parts within the minimum-approach distance. This includes the
energized, uncontrolled loop formed by Beam when removing slack. All portions
of the employee’s body within the minimum-approach distance need to be
insulated or guarded from an uncontrolled, cut, energized line. Consistent with
the Secretary’s interpretation, George Davis, vice president, recognized that
wearing properly rated gloves and sleeves would not protect against
electrocution if contact with energized parts is made on an uninsulated part of
the employee’s body (Tr. 313-314). He agreed that exposure to other energized
parts necessitated other precautions besides wearing gloves (Tr. 316-317).
Superintendent Webb and safety coordinator Robert Reeves similarly recognized
the limitation on the use of gloves and sleeves in protecting an employee while
performing the slack-removing procedure (Tr. 94-95, 598-600).

The
requirements of § 1926.950(c)(1) were not complied with when Beam failed to
control the line when it was cut.

Employee Exposure

The

4 ACSR wire, when formed into a loop, is unpredictable as to its location and

configuration as the tension is released (Exh. C-3). Unless insulated or
controlled, the loop exposes the employee’s body to accidental contact during
MasTec’s slack-removing procedure.

Randy
Latham, lineman, testified that in the past the loop has contacted his body
while he was removing slack (Tr. 1211). “When the loop hit his chest at Petty
(a prior employer), felt a little static like a spark plug” (Tr. 1273). He
recognized that if the aerial bucket is not properly positioned, the loop can
contact the employee’s stomach and chest (Tr. 1212). In MasTec’s demonstration
of its slack-removing operation, the loop appears to be hitting the side of the
insulated basket (Exh. C-10; Tr. 709). George Davis, vice president, considered
the loop unpredictable and subject to movement (Tr. 323). If not controlled, he
agreed that it could contact the lineman’s body (Tr. 332). Also, Davis stated
that holding the loop at the top did not necessarily control the bottom of the
loop (Tr. 334).

Virgil
Melton, an experienced journeyman lineman with Southeastern Line Constructors
Apprenticeship Training (SELCAT), agreed that in cutting # 4 ACSR wire, the
hazard is trying to control it (Tr. 461). When cut, the wire will “spring
around” (Tr. 463). Melton demonstrated a slack-removing procedure in which a
loop is not formed and the line does not move more than a half-inch (Exh. C-19;
Tr. 485, 490). He was not aware that some companies formed a loop as part of
their slack-removing procedure. He considered it too unpredictable and too hard
to control (Tr. 552). James Tomaseski, international representative of the
IBEW, was doubtful that the minimum-approach distance could be maintained
because of the unpredictable movement of the loop (Tr. 707).

Although
there may be other slack-removing procedures, such as the one demonstrated by
Melton, § 1926.950(c)(1) does not require a certain procedure to be used, and
there is no showing that MasTec’s procedure could not have been used in
compliance with the standard.

It
is clear, however, that Beam was exposed to an energized line when he cut the
loop. He was electrocuted when the ends contacted his uninsulated body.

Knowledge Is Imputed to MasTec

David
Webb, superintendent, was on site and observing Beam’s activities. He knew or
should have known that Beam was working within the minimum-approach distance of
the loop without adequate insulation or guarding. He was aware that Beam was
going to cut the energized line (Tr. 143, 146, 185, 205, 1421).

When
a supervisory employee is in a position to have actual or constructive
knowledge of the violative condition, knowledge is imputed to the employer. Dun-Par
Engineered Form Co. , 12 BNA OSHC 1962 (No. 82-928, 1986) (the actual or
constructive knowledge of an employer’s foreman is imputed to the employer).

A
violation of § 1926.950(c)(1) is found.

Unpreventable Employee Misconduct

Having
found a violation of § 1926.950(c)(1), MasTec asserts the affirmative defense
of unpreventable employee misconduct. In order to establish employee
misconduct, MasTec must show that it (1) has established work rules designed to
prevent reasonably anticipated violative conditions; (2) has adequately
communicated the work rules to its employees; (3) has taken steps to discover
violations of the rules; and (4) has effectively enforced the work rules when
violations have been discovered. Nooter Construction Co., 16 BNA OSHC
1572, 1578 (No. 91-237, 1994).

MasTec
argues that if Beam had followed its procedure for removing slack, the accident
would not have occurred. MasTec asserts that Beam violated four of its safety
rules by failing to (1) install a mechanical jumper, (2) secure the loop
to line, (3) cut the loop near the top, and (4) control the other end of
the loop after the cut (Tr. 1914). There is no dispute that Beam did not take
these precautions (Exh. C-2; Tr. 1915).

The
record, however, fails to show that the rules involved in the slack-removing
procedure were work rules which were communicated to employees and enforced by
MasTec.

The Lack of Work Rules

MasTec’s
safety manual restates the same approach distances as § 1926.950(c)(1) (Exh.
C-4). However, MasTec’s restatement in the safety manual fails to provide that
employees or conductive objects are not to come within the approach distances
unless the energized line or employee is isolated, insulated or guarded. Also,
the safety manual does not address MasTec’s slack-removing procedure; the use
of the mechanical jumper; the safe procedure for controlling and securing the
loop; or where to cut the loop (Exhs. C-4, R-4, Tr. 123).

OSHA
safety specialist David Gilreath was shown no written procedures for removing slack
(Tr. 1039, 1117). According to Gilreath, foreman Mims told him that basically
“we’re supposed to know” (Tr. 1117). As far as securing the loop, Mims stated
that he might or might not use ties (Tr. 1117). George Davis, vice
president, acknowledged the lack of a written rule as to where to cut the loop.
He was sure that employees deviated from the common practice of cutting the
loop short on one end (Tr. 396). Davis testified that it was permissible for
employees to follow other rules when removing slack (Tr. 408-409). Although
routine, James Tomaseski, IBEW, did not consider the slack-removing operation
as one of the simplest jobs performed by lineman (Tr. 781).

The
procedure for removing slack utilized by Latham in training Beam originated from
Latham’s prior employer (Tr. 1279). Latham testified that no one from MasTec
discussed with him its slack-removing procedure (Tr. 1154, 1211). In his
opinion, “everybody does everything differently” (Tr. 1213). Groundsman Bruce
Lockhart testified that he observed linemen removing slack in different ways
(Tr. 250-251). Regardless of the procedure, Lockhart stated that a loop was
always formed and the loop was never insulated (Tr. 251).

Also,
even if the use of a mechanical jumper was a rule, it is questionable whether
the jumper is a safety device (Exhs. C-37, R-43). MasTec theorizes that if the
mechanical jumper had been attached, Beam would have received only 1.35
milliamperes (Exh. R-37; Tr. 1645). According to Dr. George Vachtsevanos, MasTec’s
expert, if the human body receives less than 5 milliamperes, it feels a slight
sensation, a tingling effect, but it retains all capabilities (Tr. 1652). He
opined that Beam would still be alive if the mechanical jumper had been used
(Tr. 1833). Terry Wilkins, the Secretary’s expert, agrees that less than 5
milliamperes has no effect on the human body (Tr. 874).
         The parties agree,
however, that the primary purpose of the mechanical jumper is to provide
continued electrical service to customers (Tr. 520, 727, 1016, 1961). The use
of the jumper also reduces the amount of current flowing through the bypassed
portion of the line. However, there is no showing that the jumper is tested and
certified as a safety device. No minimum standards were shown to ensure
acceptability (Tr. 1017, 1980). The jumper’s effectiveness depends on its
resistance, the extent to which the jumper is making contact with the line, and
the environmental condition of the line and jumper (corrosion and oxidation)
(Tr. 494, 869, 1065, 1724, 1966). Even if the mechanical jumper and line are in
good condition and properly installed, some current still flows through the cut
line (Exh. C-35; Tr. 1983). The amount is unknown to the lineman.
Dr. Vachtsevanos, MasTec’s expert, agreed (Tr. 1814). A mechanical jumper
is not an alternative to insulation such as gloves, sleeves, blankets, hoses
and other rubber goods which prevent the flow of current (Tr. 863, 1980-1981).

Latham,
a first class lineman, has witnessed instances where the mechanical jumper
broke off because of the ends (Tr. 1246). Even with a mechanical jumper on the
line, Latham considered the loop still energized (Tr. 1275). He would not grab
it. He knew that current still flowed through the loop because he has been
shocked when his body contacted it (Tr 1275-1276, 1281). Superintendent Webb
described his contact with an energized line as “buzzed,” although there was a
mechanical jumper on the line (Tr. 214-215).

Therefore,
MasTec fails to show that its procedure for removing slack constituted mandated
safety rules which employees were required to follow.

The Rules Were Not Communicated

In
addition to a lack of rules, the record fails to establish that the slack-removing
procedure was communicated to employees or that employees understood the rules.
MasTec’s safety program consisted of daily tailgate meetings and job site
inspections, which included safety meetings (Exhs. R-18, R-19, R-20, R-22,
A-E). The records show that personal protective equipment and accident
prevention were discussed during the meetings. However, there is no showing
that approach distances, slack-removing procedures, or the need for insulation
and guarding were addressed when working on an energized line.

A
review of MasTec’s tailgate meetings also does not show that employees were
instructed in the slack-removing procedure to install a mechanical jumper,
secure the loop or proper cutting of the loop. In fact, the records fail to
show any instruction in the slack-removal procedure prior to the accident
(Exhs. R-18, R-20, R-25, R-26; Tr. 1529).

Foreman
Dale Mims testified that MasTec never showed him how to remove slack, and he
was never told what rules applied to the procedure (Tr. 633, 649). First-class
lineman Randy Latham agreed that MasTec never told him the procedure to follow
in removing slack (Tr. 1211). Groundsman Bruce Lockhart also testified that the
slack-removing procedure was never discussed during the morning tailgate
meetings (Tr. 254-255). Lockhart observed that there were variations as to when
the mechanical jumper was installed, and he never observed linemen tying off
the loop (Tr. 251-252).

At
the time of the accident, Beam had only worked on power lines for approximately
three months, two months as an apprentice under the supervision of lineman
Latham. He had progressed from an apprentice to lineman first class. The record
suggests that typically a person works two years as an apprentice (Tr. 665,
1207, 1331). According to James Tomaseski, IBEW, it is impossible to be trained
as a lineman in four months (Tr. 698). It is a highly skilled and hazardous job
(Tr. 698). However, there is no citation for lack of training or that Beam
was not properly classified to do the job.

Foreman
Mims acknowledged that Beam had to learn a lot of different tasks (Tr. 1361).
Mims agreed that Beam still needed “close supervision” after his promotion to
lineman (Tr. 1354). Mims still considered Beam as an apprentice. According to
Mims, after Latham left the crew, “he [Beam] would still be doing the work by
himself, but I was going to be there watching him do it” (Tr. 1352). “He had
not developed to where he could be doing work by himself without supervision”
(Tr. 1355). George Davis, vice president of the central division, agreed that
Beam needed continued supervision as a lineman (Tr. 376, 404-405).

The
record reflects that Latham and Beam, during approximately two months working
together, had removed slack while transferring lines on at least 10 poles (Tr.
1164-1165, 1169, 1172, 1181, 1182-1183, 1189, 1195, 1202). Also, with foreman
Mims observing from the ground after Latham left the crew, Beam removed slack
from at least four more poles prior to the accident (Tr. 1301-1302, 1304,
1318).

In
Latham’s description of removing slack at the various poles, it was not shown
how many times, if any, Beam had actually removed slack by himself. Latham
described his training as showing Beam the equipment, protective equipment and
the normal everyday procedures. He trained him in work procedures by first
doing the job himself, then doing the job together with Beam, and finally
allowing Beam to do it by himself while Latham watched (Tr. 1154, 1160). Latham
instructed Beam in his procedure for removing slack (Tr. 1166, 1170). However,
it is not shown that his instruction also included the hazards associated with
failing to perform each step of the procedure. In fact, Latham had to stop Beam
prior to the accident from cutting a line without a mechanical jumper. Latham
never reported the incident (Tr. 1263-1264). He also did not recall telling
anyone else about the incident. Further, he did not remember being asked by
MasTec whether Beam had any problems with the slack-removing procedure (Tr.
1265, 1282).

Unlike
Latham, who trained Beam from another aerial bucket, Mims supervised Beam from
the ground during the month prior to the accident (Tr. 1364). However, from the
ground, Mims agreed that it is hard to observe precisely what is being done 40
feet in the air. Also, it is hard to hear because of the noisy equipment (Tr.
382, 1364, 1366, 1373-1374). Mims defined his constant observation as
approximately 90 percent of the time. It was “most of the time” (Tr. 1365).
Foreman Mims could not recall anyone in MasTec’s management observing Beam
removing slack to make sure he did it in accordance with company procedure (Tr.
1362).

Unfortunately
for Beam, on the day of the accident, superintendent Webb viewed his role not
as a supervisor, but as an observer and helper if Beam needed something (Tr.
1459). Webb was at the site to observe the crew’s work because of MasTec’s
concern over the crew’s low production, labor cost, or length of time on the
job was exceeding the amount of money made (Tr. 75-76, 368-369, 2035). Webb was
watching from the ground while Beam was working on his own (Tr. 184, 1418).
According to Webb, “I didn’t figure he (Beam) needed any direct supervision. I
was just there to try and observe and see what else that I could help him with”
(Tr. 1459). Also, Webb was watching the operator and groundsman working
approximately 400 feet away setting new poles (Tr. 1445-1446).

Although
the procedure was repeated during the three months he worked as a lineman,
there is no showing that Beam understood the procedure and the associated
hazards. The record is unclear how many times Beam had removed slack by himself
other than the four times while Mims was observing from the ground. Beam’s lack
of understanding on the day of the accident is demonstrated by his failure to
take four separate precautions in removing the slack. Beam (1) failed to
apply the mechanical jumper, (2) secure the loop to the line, (3) cut the loop
on one side within six inches of the top, and (4) hold onto the other side of
the loop after cutting. One failure may be considered a mistake or oversight,
but four failures show a complete lack of communication of the rules.

Safety Rules Were Not Enforced

To
show enforcement of its safety program, MasTec offered its records of employee
discipline (Exhs. R-23, R-24). MasTec’s safety violation policy was adopted in
June, 1998 (Exh. R-27; Tr. 1856-1857).

A
review of the records, however, fails to show that any of the safety rules
allegedly violated by Beam were enforced. The discipline records do not show
any employee disciplined for failing to install a mechanical jumper, secure the
loop, control the loop, or for improperly cutting the loop (Exh. R-23; Tr.
1870-1871).

Also,
Mastec’s enforcement of its safety rules was not shown to be consistent and in
adherence with its own safety program. The records show that MasTec’s
disciplinary procedure is not strictly followed. For example, an employee on
July 22, 1998, received only a warning for not wearing rubber gloves. However,
MasTec’s discipline program directs that he should have been suspended for
three days for the offense (Exh. R-23; Tr. 1868; also see another record
for July 22, 1998).

To
prove that its disciplinary system is more than a paper program, an employer
must show evidence of having actually administered the discipline outlined in
its policies and procedures. Pace Construction Corp ., 14 BNA OSHC 2216, 2220
(No 86-758, 1991).

SERIOUS
CLASSIFICATION

The
Secretary classified the violation as serious. A serious violation is
established if the violative condition creates a substantial probability of
death or serious physical harm, and the employer knew or should have known of
the violative condition, §17(k) of the Act (29 U.S.C. § 666(k)). In
determining whether a violation is serious, the issue is not whether an
accident is likely to occur; it is rather, whether the result would likely be death
or serious harm if an accident should occur. W hiting-Turner Contracting Co .,
13 BNA OSHC 2155, 2157 (No. 87-1238, 1989).

There
is no dispute that the employee was working on 7,200-volt power lines, clearly
sufficient to cause death or serious injury. MasTec was aware that the work
required removing slack from the line, which necessitated cutting the energized
line. If the slack-removing procedure was not properly performed,
electrocution, causing serious injury or death, such as in this case, was the
likely outcome.

PENALTY
CONSIDERATION

The
Commission is the final arbiter of penalties in all contested cases. In
determining an appropriate penalty, the Commission is required to consider the
employer’s size of business, history of previous violations, its good faith,
and the gravity of the violation. Gravity is the principal factor to be
considered.

MasTec
is a large employer with 7,000 employees and does business in most states and
some countries (Tr. 272-273). However, Weeks Construction was the company at
the time of the violation. Weeks employed 2,200 employees and is considered a
large employer (Tr. 275, 1008). Also, Weeks had a history of prior violations.
In 1990, Weeks received a willful citation, which included an alleged violation
of § 1926.950(c)(1) (Exh. C-26). According to Reeves, Weeks had also received
prior citations, including fatalities from electrocutions (Exhs. C-17, C-23,
C-24, C-27; Tr. 612-613, 1012, 1517-1518). Since 1985, Weeks had seven fatalities
that resulted in OSHA citations (Tr. 1048-1049).

A
penalty of $7,000 is reasonable for serious violation of § 1926.950(c)(1). The
violation is considered as high severity and greater hazard. The employee was
exposed to 7,200 volts without adequate, insulated protection to perform the
job. The employee was inexperienced, having performed lineman work for less
than three months. He was also inadequately supervised and trained in the
proper procedure for removing the slack.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The
foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based
upon the foregoing decision, it is ORDERED that:

CITATION NO 1.

1.         Item
1, serious violation of § 1926.950(c)(1), is affirmed and a penalty in the
amount of $7,000 is assessed.

/s/                                                        

KEN
S. WELSCH

Judge

Date: April 10, 2000