PAR Electrical Contractors, Inc.

Plain-English summary

Two journeyman linemen worked from an aerial-lift bucket near a 12,470-volt conductor without insulating gloves, and one was electrocuted while the other sustained burns. The Commission found that the employees breached the required two-foot approach distance while maneuvering a heavy new conductor in a tight work area. The working foreman knew the dimensions, bucket position, task, and lack of gloves, yet told the crew they had plenty of room and did not observe the work. His constructive knowledge was imputed to PAR. Because an earlier final citation involved the same energized-line hazard, the violation was affirmed as repeat with a $20,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.950(c)(1)(i)
• Outcome: The minimum-approach-distance violation was affirmed as repeat with a $20,000 penalty.
• Key point: A foreman must anticipate an approach-distance breach when a heavy task leaves little margin near an energized line, and a prior citation involving the same hazard supports repeat classification.

Full text (OSHRC public release)

PAR Electrical Contractors,Inc., Docket No. 99-1520

Walter, J. David
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X-NONE
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SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 99-1520

PAR ELECTRICAL CONTRACTORS, INC.,

I.B.E.W, LOCAL UNION 53,

Authorized Employee Representative.

DECISION

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

BY THE COMMISSION:

PAR
Electrical Contractors, Inc. (“PAR”), based in Kansas City, Missouri,
constructs and maintains power transmission and distribution systems throughout
the Midwest. Its crew of three journeymen linemen was upgrading electrical
power poles and lines along a street in Warrensburg, Missouri, when an accident
occurred. The Occupational Safety and Health Administration (“OSHA”)
investigated and issued a citation alleging a repeat violation of the standard
requiring employees not wearing insulating gloves to observe a minimum approach
distance of two feet from uninsulated energized parts. OSHA proposed a penalty
of $25,000. Commission Administrative Law Judge Ken S. Welsch affirmed a
violation of the standard and characterized it as repeat, assessing a penalty
of $20,000. PAR filed a petition for discretionary review, and the case was
directed for review. For the following reasons, we affirm the judge’s disposition.

I. Background

As
part of the upgrading project, a crew of three journeymen linemen were assigned
the task of moving a new non-energized conductor from a dolly to insulator pins
attached to the end of the cross arm of a new 40-foot high utility pole. Prior to
initiating work, the crew members discussed the job and decided that it was not
necessary to insulate or guard the nearest energized conductor, nor to wear
rubber protective gloves or sleeves.

Two
of the linemen, Messrs. Barkley and Vanover, ascended in an insulated,
truck-mounted aerial lift bucket, which was 28 inches wide, 49-1/2 inches long
(excluding a two-inch lip around the top), and 41 inches deep. The other
lineman, Mr. Frank, who had been designated as working foreman of the crew, stayed
on the ground at the truck. When the bucket was positioned at least 30 feet
above the ground, Vanover and Barkley began moving a new non-energized
conductor weighing 180 pounds from a dolly atop the cross arm of the utility
pole to an insulator pin 18 inches away near the end of the cross arm. The
insulator pin was 26-1/4 inches from the closest energized conductor, which had
been mounted temporarily on a hot arm attached to the end of the cross arm. It is undisputed that the
energized conductor was energized at 12,470 volts, phase to phase.

After
Barkley removed the new non-energized conductor from the dolly and placed it on
the cross arm, he placed insulator boots on the conductor and lifted it onto
his left shoulder. After he moved the conductor to a point above the insulator
pin, 26-1/4 inches from the energized conductor, he heard a loud boom, felt
heat, and fell to the bottom of the bucket. Barkley received minor burns.
Vanover, who was behind Barkley in the bucket, was electrocuted. The autopsy
report states that there was an entrance wound in the palm of Vanover’s left
hand and an exit wound on the posterior surface of his left thigh.

No
one witnessed the accident. At the time of the accident, working foreman Frank
was in the truck preparing cut outs and not observing the work.

II. Discussion of the Merits

Following
OSHA’s investigation of the accident, PAR was charged with violating the power
transmission and distribution construction standard at 29 C.F.R. §
1926.950(c)(1)(i). It is
undisputed that, for a conductor energized at 12,470 volts phase to phase, the
standard requires employees to keep a distance of at least two feet, or 24
inches.

In
his decision, the judge concluded that the Secretary had met her burden of
proving the elements of her case. He found that the elements of
noncompliance with the terms of the standard and employee exposure were
established. The judge also determined that working foreman Frank could have
known of the noncomplying condition with the exercise of reasonable diligence,
and his constructive knowledge should be imputed to PAR.

PAR
raises issues on review concerning whether the Secretary established that (1)
PAR failed to comply with the terms of the standard, (2) its linemen had
access, or were exposed, to a hazardous condition, and (3) it had knowledge of
the condition.

We
find that the evidence clearly shows that PAR did not comply with the terms of
the standard and its employees were exposed to the violative condition. The
linemen in the bucket were not wearing insulating gloves or sleeves, and the
nearest energized conductor was not insulated or guarded. The linemen were
required to place the new non-energized conductor weighing 180 pounds into the
insulator pin only 2-1/4 inches from the approach distance’s outer limit. The record establishes that
Barkley was maneuvering the new conductor on his shoulder directly above the
insulator pin. By necessity, while in that position, some part of Barkley’s
body, at least a portion of his arm and shoulder, must have penetrated the
two-foot distance. See Cleveland Consolidated, Inc. , 13 BNA OSHC 1114,
1118, 1986-87 CCH OSHD ¶ 27,829, p. 36,429 (No. 84-696, 1987) (narrow, dark
work area increased likelihood of experienced electrician contacting energized
lugs 13-1/2 inches above where he was doing assigned work); Kansas Power
& Light Co. , 5 BNA OSHC 1202, 1204, 1977-78 CCH OSHD ¶ 21,696, p.
26,057 (No. 11015, 1977) (“circumstantial evidence is persuasive that by
[journeyman lineman’s] buckling-off in the area” some portion of his body
“necessarily was within two feet of an energized line”). These facts
establishing noncompliance with the terms of the standard also show that
Barkley was exposed to the violative condition.

The record also shows noncompliance with the
standard regarding Vanover, because the wounds described in his autopsy report
indicate that he, or an uninsulated object held by him, breached the two-foot
distance, regardless of how the accident occurred. See North Landing Line
Constr. Co , 19 BNA OSHC 1465, 1467, 1469, 2001 CCH OSHD ¶ 32,391, p.
49,809, 49,810-11 (No. 96-0721, 2001) (violation not dependent on accident;
reasonable inferences from circumstantial evidence). Based on the same facts,
Vanover also was clearly exposed to the hazardous condition.

Next
we turn to the issue of whether the Secretary proved that PAR had knowledge of
the violative condition. To prove knowledge, the Secretary must show that the
employer either actually knew of the noncomplying condition, or constructively
knew of it--that is, the employer could have known with the exercise of reasonable
diligence. North Landing, 19 BNA OSHC at 1472, 2001 CCH OSHD at p.
49,813; Pride Oil Well Service , 15 BNA OSHC 1809, 1814, 1991-93 CCH OSHD
¶ 29,807, p. 40,583 (No. 87-692, 1992). The knowledge of a supervisory employee
may be imputed to his or her employer. Id. The judge found that PAR had
constructive knowledge of the condition imputed from working foreman Frank,
whose supervisory status is not disputed.

Our
inquiry, therefore, is whether the Secretary established that PAR could have
known of the cited condition with the exercise of reasonable diligence. See,
e.g., Stahl Roofing, Inc. , 19 BNA OSHC 2179, 2181, 2003 CCH OSHD ¶ 32,646,
p. 51,218 (No. 00-1268, 2003) (consolidated). Whether an employer was
reasonably diligent involves a consideration of several factors, including the
employer’s obligation to have adequate work rules and training programs, to
adequately supervise employees, to anticipate hazards to which employees may be
exposed, and to take measures to prevent the occurrence of violations. Precision
Concrete Constr. , 19 BNA OSHC 1404, 1407, 2001 CCH OSHD ¶ 32,331, p.
49,552 (No. 99-707, 2001). These factors are consistent with Eighth Circuit
precedent, applicable here under section 11(a) & (b) of the Occupational
Safety and Health Act of 1970 (“the Act”), 29 U.S.C. § 660(a) & (b).
See Danco Constr. Co. v. OSHRC , 586 F.2d 1243, 1246-47 (8th Cir. 1978) (factors
involved in employer knowledge determination in context of serious
characterization); Ames Crane & Rental Service, Inc. v. Dunlop, 532
F.2d 123, 125 (8th Cir. 1976) (same). See also Omaha Paper Stock Co. v.
Secretary , 304 F.3d 779, 784-85 (8th Cir. 2002) (same).

Based
on the record, we find that the Secretary made a prima facie showing that, with
the exercise of reasonable diligence, PAR could have known of the violative
condition and taken steps to prevent it. We reject PAR’s argument that the
judge incorrectly based his finding of constructive knowledge on the foreman’s
“presence at the worksite and his knowledge of the work activities.” The judge
properly relied on evidence that working foreman Frank knew that the linemen
had to lift the 180-pound non-energized conductor and place it down into the
insulator pin, which was only 2-1/4 inches outside the prohibited approach
distance. He was aware of these tight conditions resulting from the positioning
of the truck and the bucket and should have reasonably anticipated that the
two-foot distance from the energized line would be breached by at least one of
the linemen, as it was here by Barkley. He knew how the bucket was angled, how
the bucket and boom were positioned near the energized conductor, and how tight
the work area was inside and outside the bucket. He knew the back side of the
bucket was only 18 inches from the energized line, and the tie wires and tools
to be used after the new conductor had been placed in the insulator pin were in
the “grunt” bag on the outside of the back side of the bucket within the
two-foot zone. He knew the two linemen in the bucket were not wearing
insulating gloves, although they had the gloves with them.

Despite
all this, Frank told Vanover and Barkley that they had “plenty of room” to do
the work. While PAR had a work rule that, although not completely tracking the
standard, prohibited approaching within two feet without wearing high-voltage
rubber gloves, Vanover and Barkley could have considered Frank’s instructions on site as
overriding the rule. See Pride Oil Well Service, 15 BNA OSHC at 1816, 1991-93
CCH OSHD at p. 40,586. Cf. L.E. Myers Co. , 16 BNA OSHC 1037,
1041, 1993-95 CCH OSHD ¶ 30,016, p. 41,128 (No. 90-945, 1993) (despite work
rule to contrary, foreman did not order that lines be insulated even when crew
knew there was little margin for error). In any event, under these
circumstances, the foreman’s instructions that they had “plenty of room” were
plainly inadequate. For these reasons, we conclude that Frank had constructive
knowledge, and we impute that knowledge to PAR.

Additional
evidence of constructive knowledge noted by the judge was the testimony of Mark
Biernbaum, PAR’s safety director (himself a former journeyman lineman) who
testified that under the facts presented here gloves should have been worn.
Biernbaum also acknowledged at the hearing that Frank should have ensured their
use. The judge also found that PAR’s failure to discover that Frank was not
conducting weekly safety meetings shows a lack of internal controls. He further
noted that PAR had a history of prior violations of the same standard--final
orders for citations issued in 1997 and 1994, which are in evidence--yet PAR
still had not adequately enforced its safety program. Compare
Capital Electric Line Builders v. Marshall , 678 F.2d 128, 130 (10th Cir. 1982)
(uncontradicted expert testimony that company program entirely adequate).

PAR
did not rebut this prima facie showing of employer knowledge. See Danco ,
586 F.2d at 1247 & n. 6 (where record contains substantial evidence, not
error for Commission to conclude employer must come forward with evidence to
rebut). PAR argues that these employees were both journeymen linemen, who, to achieve
that status, underwent years of training and field experience, and so they do
not require extensive instruction and supervision. As this case shows, however,
employers cannot count on employees’ common sense, experience, and training by
former employers or a union to preclude the need for specific instructions. See,
e.g., CMC Elec., Inc. v. OSHA , 221 F.3d 861, 865-66 (6th Cir. 2000); Ford
Dev. Corp. , 15 BNA OSHC 2003, 2009, 1991-93 CCH OSHD ¶ 29,900, p. 40,801-02
(No. 90-1505, 1992), aff’d without published opinion , 16 F.3d 1219 (6th
Cir. 1994). Based on the above, we affirm the violation of the standard.

III. Characterization

The
remaining issue on review is whether the violation was repeated, as alleged, under
section 17(a) of the Act, 29 U.S.C. § 666(a). The judge found that the
Secretary had met her burden of proving that there was a final order against
PAR for a substantially similar violation. A citation issued to PAR in March of
1997 for a worksite in Morrison, Colorado, alleged a violation of the same
standard as the one cited here. That citation became a final order of the
Commission as a result of a settlement. See, e.g., Ford Dev. Corp. , 15
BNA OSHC at 2008, 1991-93 CCH OSHD at p. 40,800 (settlement agreement can form
basis for repeat characterization). PAR argues that it rebutted the Secretary’s
case by showing that the facts and circumstances of the 1997 citation were
substantially different. We find that the distinctions PAR points to are not sufficient
to rebut the Secretary’s showing of substantial similarity. The principal
factor in determining if a violation is repeated is whether the two violations
involved substantially similar hazards. E.g., Amerisig Southeast, Inc. ,
17 BNA OSHC 1659, 1661, 1995-97 CCH OSHD ¶ 31,081, p. 43,364 (No. 93-1429,
1996), aff’d without published opinion , 117 F.3d 1433 (11th Cir. 1997); Stone
Container Corp. , 14 BNA OSHC 1757, 1762, 1987-90 CCH OSHD ¶ 29,064, p.
38,819 (No. 88-310, 1990). As the judge noted, the foreman of the Colorado crew
acknowledged in his testimony in this case that the hazard in the 1997 citation
was an experienced journeyman lineman not wearing rubber protective gloves and
sleeves while he was working within the minimum approach distance. That is the
same hazard cited here. We therefore find, based on the evidence, that the
violation was repeated. See generally Modern Continental Constr. Co. v.
OSHRC , 305 F.3d 43, 52-53 (1st Cir. 2002).

IV. Penalty

Taking into account the judge’s decision, the record,
and the penalty factors in section 17(j) of the Act, 29 U.S.C. § 666(j), we
assess a penalty of $20,000 for this repeat violation, as the judge did.

IT
IS SO ORDERED.

/s/ 

W.
Scott Railton

Chairman

/s/

James
M. Stephens 

Commissioner

/s/ 

Thomasina
V. Rogers

Commissioner

Dated: February 19, 2004

Secretary of Labor,

Complainant,

v.

OSHRC Docket No. 99-1520

PAR Electrical Contractors, Inc.,

Respondent,

IBEW, Local Union 53,

Authorized
Employee

Representative.

APPEARANCES

Kathleen
Butterfield,
Esq.                              
Eric T. Swanson, Esq.

Office
of the
Solicitor.                                    
Knipmeyer, McCann, Smith, Manz & Gotfredson

U.
S. Department of
Labor                 
Kansas City, Missouri

Kansas
City,
Missouri                                    
        For Respondent

For
Complainant

Before: Administrative Law Judge Ken S. Welsch

DECISION

PAR
Electrical Contractors, Inc. (PAR), contracted to upgrade power lines in
Warrensburg, Missouri. On April 19, 1999, while moving a new non-energized
conductor on a 40-foot utility pole, a journeyman lineman contacted an
energized conductor and was fatally electrocuted. Another lineman was burned.
As a result of an investigation by the Occupational Safety and Health
Administration (OSHA), PAR received a repeat citation on June 28, 1999. PAR
timely contested the citation.

The
repeated citation alleges that PAR violated 29 C.F.R. § 1926.950(c)(1)(i) by
permitting two employees to work in the vicinity of an un-insulated energized
conductor without wearing rubber protective gloves. The Secretary asserts that
the violation was repeated based on a prior citation issued to PAR on March 6,
1997, involving a fatality in Morrison, Colorado. A penalty of $25,000 is
proposed for the current violation.

A
hearing was held in Kansas City, Missouri, on February 16 - 19, 2000. The
parties stipulated jurisdiction and coverage (Tr. 8).

PAR
denies that it violated § 1926.950(c)(1)(i) because the employees were
experienced journeyman linemen and their work did not require them to be within
two feet of the energized conductor. PAR argues lack of knowledge and
unpreventable employee misconduct that the 2-foot minimum approach distance was
breached (Tr. 13-17).

The
parties filed post-hearing briefs. For the reasons stated, a violation of §
1926.950(c)(1)(i) is affirmed.

Background

PAR,
a utility contractor, is engaged in the construction and maintenance of power
transmission and distribution systems in the Midwest. PAR’s place of business
is Kansas City, Missouri. It employs approximately 400 employees (Tr. 507,
539).

In
April, 1999, pursuant to a contract with Missouri Public Service, PAR was
replacing eleven power poles along PCA Drive, in Warrensburg, Missouri (Exh.
C-1; Tr. 30, 508, 579-580, 604). The new 40-foot poles were erected near the
old poles. The energized conductors were moved from the old poles to hot arms
temporarily mounted to the cross arms on the new poles. Also, new non-energized
conductors were temporarily placed in dollies installed on the cross arms of
the new poles (Tr. 32, 40, 251, 471, 508, 522).

On
the morning of April 19, 1999, at Pole #2 foreman John Frank and journeyman linemen Eugene Barkley and Samuel
Vanover parked their truck-mounted aerial bucket along PCA Drive parallel to
the pole (Exh. C-1; Tr. 142, 153, 222, 480-481, 573, 606, 622). Three energized
conductors (two on one side of the pole and one on the other side) were secured
to hot arms attached to the end of the cross arm (Exhs. C-9, C-10; Tr. 174,
471, 487). The three larger new non-energized conductors were in dollies
installed on the cross arm (Exhs. C-2, R-2; Tr. 488, 515).

The
crew’s job that morning required them to move the new non-energized conductors
from the dollies to insulator pins attached at the end of the cross arm. After
moving the conductors, the crew was to shoot ampact (Tr. 32, 497, 511, 515). The first non-energized conductor needed to
be moved 18 inches to the insulator pin. The insulator pin was located 26
inches from the nearest energized conductor on the hot arm (Exhs. C-1, C-2; Tr.
242, 519).

The
parties agree that the energized conductor carried 7,200 volts phase to ground
or 12,470 volts phase to phase. Also, the parties agree that based on the
voltage, OSHA requires a minimum approach distance of 24 inches (2 feet) from
the energized conductor unless the employee or conductor is insulated, guarded
or isolated (Tr. 19, 745).

Prior
to initiating work, the crew discussed the job and decided that it was not
necessary to insulate or guard the energized conductor. Also, the linemen
decided not to wear rubber protective gloves or sleeves (Tr. 265, 497, 502, 605,
612, 628, 635). While foreman Frank remained at the truck preparing cut outs,
journeyman linemen Barkley and Vanover moved the aerial bucket up to the cross
arm on Pole #2 (Tr. 503-504). Vanover operated the bucket and Barkley was
positioned closest to the dolly and insulator pin on the cross arm (Tr. 612).

The
aerial bucket was 28 inches wide, 49 ½ inches long and 41 inches deep (Exhs. C-15, C-16, C-17, C-18; Tr. 87-89, 228). The
distance between the non-energized conductor in the dolly which was being moved
and nearest energized conductor (1/0 conductor) was 44 1/4 inches. The
insulator pin where the conductor was to be moved was 26 1/4 inches from the
energized conductor (Exhs. C-2, R-2; Tr. 34, 41, 52-53, 241).

According
to lineman Barkley, he first removed the non-energized conductor from the dolly
and placed it on the cross arm. After placing insulator boots on the conductor,
Barkley then lifted the new conductor on his left shoulder and moved it to a
point above the insulator pin (26 1/4 inches from the energized line). At that
point, he heard a loud boom, felt heat and fell to the bottom of the bucket
(Exhs. C-2, C-4, C-42; Tr. 613-615, 639). The accident occurred at 9:30 a.m.
(Tr. 64, 266). Barkley received minor burns (Tr. 255). Vanover, who was behind
Barkley, was electrocuted. According to the autopsy report, there was an
entrance wound in the palm of Vanover’s left hand and an exit wound on the
posterior surface of his left thigh (Exh. C-43; Tr. 181, 233). Neither linemen
was wearing rubber gloves and sleeves (Tr. 181, 183-184). The new conductor was
found 33 1/4 inches from the energized line (Exh. C-2; Tr. 505).

Safety
compliance officer (CO) Brian Drake initiated the investigation on April 20,
1999. When he arrived at the site, the equipment had been moved to another
location. CO Drake obtained photographs from the police department, diagrams
and measurements from Missouri Public Service, and interviewed the employees
and management of PAR (Tr. 28, 266-268). Based on his recommendation, a repeat
citation was issued on June 28, 1999.

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)(i)

The
citation alleges that on April 19, 1999, two employees were working from an
aerial bucket within the vicinity of an un-insulated energized conductor without
rubber protective gloves and sleeves. Section 1926.950(c)(1) provides:

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

According
to Table V-1, to § 1926.950(c)(1), the minimum approach distance to an
energized conductor with voltage of less than 15,000 phase to phase is two feet
(24 inches). PAR does not dispute that at the time of the accident, the
phase-to-phase voltage was 12,470 at Pole #2.

Application of § 1926.950(c)(1)(i)

Section
1926.950 applies to the construction of electric transmission and distribution
lines and equipment. At the time of the accident, PAR was erecting new poles
and installing new power lines for the distribution of electric power to
customers of Missouri Public Service (Tr. 745).

The
minimum approach distances required by § 1926.950(c)(1) applied to PAR’s work
at the time of the accident.

Noncompliance With § 1926.950(c)(1)(i)

The
parties agree that the applicable minimum approach distance at Pole #2 was 2
feet. If within the minimum approach distance of 2 feet, § 1926.950(c)(1)
requires insulating, guarding or isolating the employee or energized conductor.
PAR acknowledges that the linemen at the time of the accident were not wearing
their rubber protective gloves and sleeves and the nearest energized conductor
was not insulated or protected from contact.

PAR
argues that the linemen’s work did not require them to work within the 2-foot
minimum approach distance and neither the energized line nor the employees
needed insulation, guarding or isolation. Also, the linemen were working from
inside an insulated aerial bucket.

There
can, however, be no dispute that Vanover breached the 2-foot minimum approach
distance and was electrocuted when he came in contact with an energized line.
The autopsy report shows an entrance wound in the palm of Vanover’s left hand
(Exh. C-43).

No
one saw the accident. Foreman Frank was in the truck, not observing the work,
and Barkley was holding the non-energized conductor with his back to Vanover.

The
Secretary theorizes that Vanover was reaching with his left hand to retrieve
the tie wires or the ampact tool from the grunt bag hanging on the backside
(closet side to the energized line) of the aerial bucket. When removed from the
bag, the ties or tool contacted the energized line. At the same time, Vanover’s
left posterior thigh contacted the non-energized conductor (Exh. C-3; Tr. 166,
191, 343-344, 363). The ties were found burned and the ampact tool hanging from
the energized line after the accident.

PAR
disputes the theory. PAR notes that until the non-energized conductor was
placed in the insulator pin, the tie wires and ampact tool were not needed.
Also, if the non-energized conductor was on Barkley’s left shoulder and the
depth of the aerial bucket was 41 inches, it was almost impossible for Vanover
to contact the un-energized conductor on his left posterior thigh
(Tr. 229).

Regardless
of how the accident occurred, the fact remains that Vanover or an object held
by Vanover came within the 2-foot minimum approach distance of an energized
conductor and neither the energized conductor nor Vanover was insulated,
guarded or isolated, as required by § 1926.950(c)(1). Vanover was not
wearing rubber protective equipment or otherwise protected (Tr. 635).

Employee Exposure

At
least a portion of the aerial bucket was positioned within the 2-foot minimum
approach distance from the energized line. Foreman Frank told OSHA that the
backside of the aerial bucket was approximately 1 1/2 feet from the energized
line (Tr. 141, 170). This statement remains unrefuted. The bucket was at an
angle with one corner where Barkley was working closest to the cross arm with
the dolly and insulator pin (Tr. 492, 503-504, 613, 622). Vanover was the
bucket operator working the controls at the back of the bucket (Tr. 612). The position
of the bucket remained the same until the accident (Tr. 493, 613-614).

In
order to prove employee exposure, the Secretary must show that employees have
been, are, or will be in the “zone of danger” during their assigned working
duties. Kaspar Electroplating Corp., 16 BNA OSHC 1517, 1521 (No.
90-2866, 1993). Exposure can be established by actual or foreseeable exposure;
is it reasonably predictable that during the course of normal work duties, an
employee might be in the “zone of danger” posed by the condition. Dover
Elevator Co., 16 BNA OSHC 1281, 1285 (No. 91-862, 1993).

Despite
the crew’s plan, Vanover breached the 2-foot minimum approach distance to the
energized conductor. Vanover was electrocuted. Actual exposure is established.
PAR also recognizes that since both linemen were working from the same aerial
bucket, both linemen were exposed even if only one lineman breached the minimum
approach distance (Tr. 958).

Employer Knowledge

In
order to establish employer knowledge, the Secretary must show that the
employer knew or, with the exercise of reasonable diligence, could have known
of the violative condition. When a supervisory employee has actual or
constructive knowledge of the condition, knowledge is imputed to the employer. Dun
Par Engineered Form Co. , 12 BNA OSHC 1962, 1965 (No. 82-928, 1986).
   PAR’s work plan was for the linemen to maintain a 2-foot
minimum approach distance from the energized conductor (Tr. 502). The crew was
to move a non-energized conductor from a dolly (44 1/4 inches from the
energized conductor) to an insulator pin (26 1/4 inches from the insulator pin)
(Exh. C-2). According to the plan, the linemen’s work brought them within 3
inches of the 2-foot minimum approach distance.

There
is no dispute that John Frank, foreman, was a supervisory employee. Foreman
Frank was on site and in part observing the linemen’s activities at the cross
arm (Tr. 514). Frank was knowledgeable of the distance of the insulator pin
from the nearest energized conductor. He knew that the insulator pin was within
26 1/4 inches of the energized conductor. He observed that at least a portion
of the aerial bucket was approximately 18 inches from the energized conductor
(Tr. 141, 170). The bucket was at an angle to the cross arm (Tr. 487, 492).
Frank also stated that the linemen’s heads and shoulders were above the
non-energized conductor (Tr. 141, 289). He saw the linemen approximately 33
inches (location of energized line after the accident) from the energized line
(Tr. 505). He also knew the linemen were not wearing rubber protective gloves
and sleeves and the energized line was not insulated.

As
foreman, it was Frank’s responsibility to supervise the work of moving the
non-energized conductor (Tr. 469, 480, 514, 519, 521). He had the
responsibility to assure the work was safely performed. Frank knew that it was
part of his job to assess the work site, including clearances, as well as
monitoring the crew’s clearance (Tr. 513-514).

Based
on Frank’s presence at the job site and his knowledge of the work activities,
the Secretary has established constructive knowledge. With the exercise of
reasonable diligence, Frank should have known that the linemen’s work might
breach the 2-foot minimum approach distance. Frank’s knowledge is imputed to
PAR.

The
record shows that the linemen’s work was not reasonably expected to be done
without breaching the minimum approach distance. Reasonable diligence requires
adequate supervision of employees and includes the implementation of training
programs and work rules designed to ensure that employees perform their work
safely. Mosser Construction Co. , 15 BNA OSHC 1408, 1414 (No. 89-1027,
1991). Frank was aware of the physical conditions constituting the violative
condition. He need not acknowledge that the physical conditions were hazardous.
Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995).

The
intended placement of the non-energized line was only 2 1/4 inches from the
2-foot minimum approach distance. Although Frank knew that the linemen’s work
was within 2 1/4 inches of the minimum approach distance, he told them that
they had “plenty of room” to do the work (Tr. 520-521). As expressed by
Johnny Dagenhart, electrical engineer and the Secretary’s expert in accident
investigation, “it was reasonably foreseeable that the workers would be exposed
to a hazardous condition” (Tr. 328). He stated that:

[e]ven though there’s 26 1/4-inch distance from the top of that insulator
over to the energized conductor that--that’s 2 1/4 inches from where you’re
working, 24 inches or 2 feet, and somehow you have that conductor over the top
of that insulator, and in this case they are carrying or moving it with their
hands. And it would seem to me that the width, of even 1/5, is going to--or if
you’re having this conductor somewhat off-center at your body, your shoulders
are going to be penetrating that 2-foot distance, unless you’re contorting
yourself to some strange manner, that conductor is--it’s just--you have to move
that conductor in such a way, in my opinion, it’s virtually impossible not to
get within that 2-foot distance.

(Tr. 332).

Also,
the positioning of the aerial bucket put the linemen within the zone of danger.
The tie wires, ampact tool and glove bag were placed on the backside of the
bucket also within the 2-foot zone (Exh. C-3; Tr. 523-525, 528, 633-634). The
tie wires and ampact tool were to be used after the non-energized conductor was
placed in the insulator pin (Tr. 635-636).

A
concern about encroaching the minimum approach distance was expressed by other
journeyman linemen. Although Barkley testified that “we were comfortable with
it [positioning of the bucket]), he also stated that “we look it over and were
about 8 or 10 inches or so from the hot face being on the boom, on the boom of
the bucket” (Tr. 613). Barkley also stated that he was holding the new
conductor on his left shoulder directly over the insulator pin (Tr. 613-614). Barkley’s
shoulder and arm would have encroached the 2-foot minimum approach distance.

Lyle
Querry, union business manager and journeyman lineman, agreed that it was
“fairly close.” However, Querry concluded that “it’s possible to complete that
function without -- the bucket in that location -- without breaching the 2-foot
rule, yes” (Tr. 561).

Mark
Biernbaum, PAR’s director of safety, testified that in his opinion, there was
clearance enough to do the work (Tr. 867). However, Biernbaum concedes that if
the aerial bucket was positioned as theorized by the Secretary, rubber
protective equipment should have been worn (Tr. 860-861).

No
one saw the contact with the energized line or what Vanover was doing at the
time of the contact. The Secretary’s reconstruction of the accident, however,
is reasonable.

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

Unpreventable
Employee Misconduct

Although
noncompliance with § 1926.950(c)(1) is found, PAR has asserted as an
affirmative defense that the violation was due to unpreventable employee
misconduct. In order to establish employee misconduct, PAR must show that it
has (1) established work rules designed to prevent reasonably anticipated
violative conditions; (2) adequately communicated the work rules to its
employees; (3) taken steps to discover violations of the rules; and (4)
effectively enforced the work rules when violations have been discovered. Nooter
Construction Co., 16 BNA OSHC 1572, 1578 (No. 91-237, 1994). In essence, the issue is whether the conduct by the employee was a
departure from a uniform and effectively communicated and enforced work rule.
PAR asserts that if Vanover had followed its procedure for remaining
outside the 2-foot approach distance, the accident would not have occurred. PAR
asserts that Vanover’s activity was a departure from it work plan and did not
comply with its safety rules.

Safety Rule

PAR’s
safety rule provides that:

When working from an aerial lift truck, pole, structure or ladder in the
vicinity of energized conductors or devices, a worker shall not approach closer
than 2 feet minimum distance from parts that are energized at 601 volts or more
without wearing high voltage rubber gloves as minimum protection.

(Exh. R-10, p. 88; Tr. 747).

In
comparison with the requirements of §1926.950(c)(1)(i), PAR’s written safety
rule is inadequate. PAR’s rule does not include the handling of conductive
objects such as tools and equipment within the approach distance. It appears
limited to employees within the approach distance. PAR’s rule also does not
provide for the option of insulating or covering the conductor (Exh. R-10, p.
88; Tr. 883-884).

It
is noted that this accident occurred most likely when Vanover retrieved a
conductive part (tie wires or ampact tool) from the back of the aerial bucket
within the 2-foot approach distance. PAR’s safety rule as written does not
prohibit such activity.

Communication

In
addition to an inadequate safety rule, PAR also fails to show that the rule was
communicated to employees, including Vanover, Barkley, and Frank.

PAR’s
safety department performs monthly safety meetings for employees (Exh. R-3,
R-32; Tr. 749-750, 753, 760). Also, the crew foremen have weekly safety
meetings (Exhs. R-4, R-5; Tr. 768-769). According to foreman Frank, he
additionally had daily tailgate meetings with his crew which discussed the job
and safety topics (Tr. 533-534).

The
record, however, does not reflect that employees Frank, Barkley and Vanover
were present during a monthly safety meeting when the approach distance was
discussed. Also, because Vanover had only been employed by PAR for less than
four weeks, safety director Biernbaum acknowledges that Vanover had not attended
any of the monthly safety meetings (Tr. 904). PAR fails to show that Vanover
received any training or was even provided a copy of the safety manual.

With
regard to the weekly meetings, foreman Frank testified that he did not conduct
the weekly meetings because he felt that the topics chosen by the safety
department were covered during his daily tailgate meetings (Tr. 533-534). He
did not complete the weekly safety meeting forms and return them to PAR’s
safety department (Tr. 530, 776, 928). PAR’s failure to know that Frank was not
conducting weekly safety meetings shows a lack of internal controls (Tr. 776).
General foreman Clyde Webster testified that he did not pay attention if the
weekly safety meeting forms were returned by the foremen (Tr. 598).

The
daily tailgate meetings allegedly performed by Frank were not documented. Frank
did not testify as to a specific tailgate meeting which emphasized the minimum
approach distance. According to lineman Barkley, Frank generally did not
participate in all tailgate meetings (Tr. 628-629, 643). Barkley, who is no
longer employed by PAR, expressed concern about being blackballed in the
industry or other repercussions if he said anything bad about Frank (Tr. 627,
647).

PAR’s
safety training in safety rules, including the minimum approach distance,
relies on the apprenticeship training for linemen provided by the union and the
lineman’s past experience. PAR argues that the two linemen involved in this
accident were very experienced journeyman linemen. As a union member, PAR points
to the union’s extensive 7,000 hour apprenticeship training program, including
its training on the minimum approach distances (Exhs. R-11, R-12, R-13;
Tr. 499, 547, 552, 735).

Vanover,
59 years old, was considered to have the most experience (Exh. C-43; Tr. 499).
Both foremen Frank and Barkley considered Vanover a good, safe employee (Tr.
499, 605). Clyde Webster, Par’s general foreman and a journeyman lineman for 30
years, previously had worked with Vanover for twelve years. He considered Vanover
“a qualified man, very good lineman” and “easy to work with” (Tr. 582).

PAR,
however, fails to show that Vanover received the apprenticeship training
through the union’s program. It was not shown what training Vanover did receive
to become a journeyman lineman. Although a union member, Vanover was referred
to as a tramp lineman who had worked for PAR less than three weeks (Tr. 605).

Despite
an employee’s past training and experience by the union or another employer,
PAR is not relieved of its responsibility to have adequate safety rules and
training. The OSH Act places the ultimate responsibility for compliance with
its requirements on the employer, who cannot contract away those duties to
another party. Pride Oil Well Service , 15 BNA OSHC 1809 (No. 87-692,
1992).

The
standard requires employees to remain outside the minimum approach distance
unless otherwise insulated or guarded. The standard does not exempt union or
experienced employees from its requirements. An employer cannot rely on an
employee’s training by former employers or the union in satisfying its
responsibility to provide a safe workplace. Supermason Enterprises, Inc .,
16 BNA OSHC 1446, 1448 (No. 92-2235, 1993). Unless such safety rules are
regularly repeated and reinforced, there is a tendency for employees to forget
them and not to take them seriously.

The
record fails to show that PAR communicated its safety rule regarding minimum
approach distance to Frank’s crew.

Enforcement

PAR
asserts that its safety rules were enforced through a progressive discipline
program, including verbal and written warnings, lost pay and discharge (Tr.
846). PAR documented its disciplinary actions (Exh. R-31). For the most part,
however, the disciplinary action involved DOT standards for drug testing (Tr.
848). The disciplinary records do not reflect any discipline for violating the
minimum approach distance rule. General foreman Webster testified that he has
given verbal warnings and terminated employees. However, it was usually for
insubordination, not for safety infractions (Tr. 596).

REPEAT
CLASSIFICATION

The
Secretary classified PAR’s violation of § 1926.950(c)(1)(i) as repeated. A
violation is considered a repeated violation under § 17(a) if, at the time of
the alleged violation, there is a Commission final order against the employer
for a substantially similar violation. Potlatch Corporation , 7 BNA OSHC
1061, 1063 (No. 16183, 1979). The Secretary establishes substantial similarity
by showing that both violations are of the same standard. Monitor Constr.
Co. , 16 BNA OSHC 1589, 1594 (No. 91-1807, 1994).

A
review of the prior citation issued to PAR in Morrison, Colorado, in 1997,
shows that it involved the same standard, § 1926.950(c)(1)(i). The citation has
become a final order (Exh. C-44; Tr. 194, 196, 565).

In
March, 1997, PAR received a citation for a violation of § 1926.950(c)(1)(i) as
a result of a journeyman lineman working on an energized line within two feet
without insulated rubber gloves. The lineman was fatally electrocuted (Exh.
C-44; Tr. 194, 205, 567-568). According to the foreman of the Colorado crew,
the employee, an experienced journeyman lineman, was not wearing rubber
protective gloves and sleeves and he was working within the minimum approach
distance (Tr. 568, 570).

The
violation in the present case was properly classified as a repeat violation.

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.

PAR
is a large employer with 400 employees and does business in several Midwestern
states (Tr. 439). PAR has a history of prior violations within three years,
including violations of the same standard. The prior citations are final orders
(Exhs. C-44, C-53, C-54, C-55).

A
penalty of $20,000 is reasonable for PAR’s repeated violation of §
1926.950(c)(1)(i). The gravity is high. Two employees were exposed to 7,200
volts phase to phase. Vanover’s position and work was reasonably expected to
place him within the minimum approach distance. Rubber protective gloves and
sleeves were in the insulated aerial bucket, but not worn. The employees were
experienced journeyman linemen.

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:

1.         Item
1, repeated violation of § 1926.950(c)(1)(i), is affirmed and a penalty of
$20,000 is assessed.

/s/

KEN
S. WELSCH

Date: August 21,
2000                                   Judge