United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20^th Street, N.W., Ninth Floor

Washington, DC 20036-3457

APPEARANCES:

David M. Jaklevic, Esq.; Radha Vishnuvajjala, Esq.; U.S. Department of Labor, Office of the Solicitor, New York, NY

                          For the Complainant

Michael Rubin, Esq.; Goldberg Segalla LLP, Buffalo, NY

                          For the Respondent.

REMAND ORDER

Before: ATTWOOD, Chairman; and MacDOUGALL, Commissioner.

BY THE COMMISSION:

Before the Commission is a decision of Administrative Law Judge Carol A. Baumerich affirming two citations issued to Tower Maintenance Corporation by the Occupational Safety and Health Administration. OSHA cited Tower following a 2012 fatal accident at a New Jersey worksite where it was engaged in painting an electric transmission tower. The Secretary subsequently amended these citations twice, with the more recent amendment alleging “alternative” violations under several citation items. One of these items is Citation 2, Item 2 (characterized as Serious Repeat), for which we specifically seek clarification.

With respect to Item 2, there is a discrepancy between the order of the alleged violations described in the Secretary’s motion to amend his complaint and the order of the alleged violations contained in the amended complaint itself. In the amended complaint, the alleged violations are as follows: 29 C.F.R. §§ 1910.132(f) (training for employees using personal protective equipment (PPE)), 1910.332(b)(1) (training for employees; electrical standard), and 1910.332(b)(2) (additional training for “unqualified persons”; electrical standard), “or in the alternative” violations of two provisions under the electric power generation, transmission, and distribution standard—29 C.F.R. §§ 1910.269(a)(2)(i) (training for employees) and 1910.269(a)(2)(ii) (additional training for qualified employees). (Amended Complaint at ¶ IX). However, in the Secretary’s motion to amend the complaint, the order of these allegations is reversed—a sequence which was reiterated in his post-hearing brief, as follows:

Tower Maintenance violated 29 C.F.R. §§ 1910.269(a)(2)(i) and (a)(2)(ii) by failing to provide each employee with fall protection training required by the standard and by failing to provide training on the work practices necessary for their safety. In the alternative, Respondent failed to comply with the parallel requirements in [§§] 1910.132(f) and 1910.332(b)(1) and (b)(2). As [§] 1910.269 makes clear, the training requirements in § 1910.269 apply “in addition to all other applicable standards contained in this Part 1910.” 29 C.F.R. § 1910.269(a)(1)(iii). Thus, Respondent was ultimately required to comply with both sets of training requirements because employees were performing work covered by both [§] 1910.269 and Subpart S. However, because Tower Maintenance was performing work more specifically covered by [§] 1910.269 – namely, maintenance work on a transmission tower that required the use of “qualified” employees – and because the language of [§] 1910.269 also encompasses the training requirements of Subpart S, the Secretary cites primarily to a violation of the training provisions in [§] 1910.269.

(Sec’y Post-Hr’g Br. at 61) (emphasis added). The Secretary also stated that “because [§] 1910.269 encompasses the requirements in Subpart S and is more specific to the work performed by Tower Maintenance, [§] 1910.269 is the more appropriate standard.” Id. at 63.

In her decision, the judge analyzed this citation item in the same order the Secretary set out in his post-hearing brief—noting that the Secretary alleged the § 1910.269 violations “primarily.” Tower Maint. Corp., Decision and Order, No. 13-0777, May 16, 2016, slip op. at pp. 8, n.10 and 63-66. It is unclear, however, whether the judge accepted this as a further amendment of the Secretary’s amended complaint—albeit without a motion or an express ruling—or if she simply determined that the Secretary mistakenly reversed the order of the allegations as set forth in his amended pleading.

In addition, the judge also appears to have affirmed violations of almost all the provisions alleged under this citation item—including those alleged by the Secretary in the alternative. Tower Maint. Corp., slip op. at pp. 67-70. Indeed, the judge’s order states as follows: “Item 2 of Citation 2, alleging a repeat violation of 29 C.F.R. § 1910.269(a)(2)(i) is AFFIRMED. Further, Item 2 of Citation 2, alleging serious violations of 29 C.F.R. §§ 1910.269(a)(2)(ii); 1910.332(b)(1) and (b)(2), is also AFFIRMED.” Id., slip op. at p. 77 (emphasis added). Under the Commission’s procedural rules, “[a] party may set forth two or more statements of a claim or defense alternatively . . . .” 29 C.F.R. § 2200.30(e). Where, as here, the Secretary makes an alternative allegation, only one of his allegations can prevail, i.e. the alternative allegation is moot if the first provision alleged is found to apply. See, e.g., MasTec, N. Am., Inc., 20 BNA OSHC 1900, 1902 n.4 (No. 99-0252, 2004) (“Since we find compliance with the terms of [§] 1926.950(c)(1), we need not consider the alternative allegation under [§] 1926.950(c)(2).”); Nat’l Industr. Constructors, Inc., 10 BNA OSHC 1081, 1086 n.8 (No. 76-4507, 1981) (where Secretary alleged alternative violations of two separate provisions of OSHA construction standards, Commission held that “resolution of the issues raised concerning the alternative allegation . . . is unnecessary[]” once one provision is found applicable); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1282 (3d ed. 2016) (“Alternative . . . pleading usually is drafted in terms of ‘either-or’ propositions . . . .”).

In these circumstances, we remand this matter to the judge to clarify her decision regarding which provisions cited under Citation 2, Item 2 the Secretary ultimately alleged in the first instance, and which he alleged in the alternative. Based on her ruling on that issue and given her decision to affirm all the violations alleged under this citation item, the judge should vacate the violations she determines the Secretary alleged in the alternative. See, e.g., Jimerson

Underground, Inc., 21 BNA OSHC 1459, 1461-62 (No. 04-0970, 2006) (remanding case where judge had not ruled on the Secretary’s motion to amend complaint to assert alternative allegations).

SO ORDERED.

                                                                                     /s/ 

Cynthia L. Attwood

Chairman

/s/

Heather L. MacDougall

Dated: July 6, 2016                                                      Commissioner

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

Appearances:David M. Jaklevic, Esquire

Radha Vishnuvajjala, Esquire

U.S. Department of Labor, Office of the Solicitor, New York, New York,

For the Complainant

Eli J. Rogers, Esquire

JoAnne M. Bonacci, Esquire

Dreifuss Bonacci & Parker, PC, Florham Park, New Jersey,

For the Respondent

Before:Carol A. Baumerich

Administrative Law Judge

DECISION AND ORDER

Tower Maintenance Corporation (Tower Maintenance or Respondent) is in the business of “electric transmission tower repainting, maintenance, and related activities.” (Ex. J-1 at ¶ 10.) Tower Maintenance employs teams of painters that climb and paint electric transmission towers. On October 25, 2012, one of these painters, JV, was electrocuted while painting a transmission tower at a height of approximately 70 feet in Edison, New Jersey. (Tr. at 151; Ex. J-1 at ¶¶ 11, 14, 27.) Immediately after being electrocuted, JV fell. As he fell, JV hit another Tower Maintenance painter, RS, who at the time of impact was working at a height of approximately 40 feet. (Tr. at 151.) Both employees then fell to the ground. JV died as a result of the electrocution and RS suffered a broken shoulder, rib, and arm as a result of the fall. (Ex. J-1 at ¶¶ 14, 15.) Both employees were wearing personal fall arrest system (PFAS) devices.

As a result of this incident, the Occupational Safety and Health Administration (OSHA) inspected the worksite and, on April 8, 2013, issued Tower Maintenance two citations alleging violations of OSHA’s electrical safety standards, fall protection standards, and training standards, and initially proposing a $35,000 total penalty (later proposing a total penalty of $91,000). Tower Maintenance filed a timely notice of contest on April 12, 2013, bringing this matter before the Occupational Safety and Health Review Commission (Commission).

A hearing was held in this matter in Newark, New Jersey, on the following dates: August 26–29, 2014, and January 12-14, 2015. Deposition testimony of three witnesses, two of which were video recorded, is also in the record. (Exs. C-30, C-30(a), J-2 (Da Silva); C-31, C-31(a) (Fonseca Alves); R-50 (Psareas) .) Because some witnesses did not speak English as their primary language, an interpreter was utilized at points during the hearing and depositions. (Tr. at 231-232, 235 (RS), 324-325 (Mackeivicz), 1003-1004 (Mackeivicz); Exs. C-30 at 7 (Da Silva), C-31 at 8 (Fonseca Alves).) Both parties filed post-hearing briefs and post-hearing reply briefs. As discussed below, the citations and proposed penalties are affirmed.

Jurisdiction

The record establishes that Tower Maintenance filed a timely notice of contest and, at all relevant times, was engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the Act). (Amended Complaint and Answer at ¶¶ III, XIII; Ex. J-1 at ¶¶ II.2, II.3.) The Commission has jurisdiction over the parties and subject matter in this case pursuant to section 10(c) of the Act.

Threshold Issues

For each of the citation items, the Secretary alleged electrical, fall protection, and training violations of either OSHA’s “electric power generation, transmission and distribution” standards found in 29 C.F.R. § 1910.269 or, in the alternative, of OSHA’s general electrical standards found in subpart S starting at § 1910.301 and OSHA’s general personal protective equipment (PPE) standards found in subpart I at § 1910.132.

To determine which standard applies, the Commission looks to the cited working conditions. S. Pan Servs. Co., 25 BNA OSHC 1081, 1085 (No. 08-0866, 2014). On October 25, 2012, Tower Maintenance was engaged in repainting a lattice-type electric transmission tower. (Tr. at 468; Ex. J-1 at ¶¶ 10, 11.) The purpose of Respondent’s painting was to maintain the transmission tower. (Tr. at 469.) Section 1910.269 applies to “the operation and maintenance of electric power generation, control, transformation, transmission, and distribution lines and equipment.” 29 C.F.R. § 1910.269(a)(1)(i). Based on this evidence, I find that Respondent’s project in Edison, New Jersey was a § 1910.269 project. See Pub. Util. Maint., Inc., 417 F. App’x 58 (2d Cir. 2011) (unpublished) (holding that § 1910.269 applies to painting performed as maintenance of an electric transmission tower).

For the alleged electrical violations, however, many of the standards within § 1910.269 presuppose that only “qualified” workers will be working because the working conditions are so inherently dangerous. Therefore, many of the § 1910.269 standards explicitly state that the more protective standards under subpart S of OSHA’s general electrical standards apply in those circumstances when “unqualified” workers are working. See 29 C.F.R. § 1910.269(a)(1)(ii) (stating that the electrical safety-related work practices of § 1910.269 do not apply “to electrical safety-related work practices … covered by subpart S of this part.”); see also Electrical Power Generation, Transmission, and Distribution; Electrical Protective Equipment, 59 Fed. Reg. 4320-01, 4334-35 (Jan. 31, 1994) (“It should be noted that, if unqualified employees are working on, near, or with electric power generation, transmission, and distribution installations, §§1910.332 through 1910.335 [in subpart S] apply in any event”; “the Agency has made application of most of the electrical requirements in [1910.269] dependent on whether or not … the employee is qualified to perform the work.”); Electrical Safety-Related Work Practices, 55 Fed. Reg. 31984-01, 31990 (Aug. 6, 1990) (“[w]ork performed by other than qualified persons on, near, or with electrical installations is covered by the work practices contained in [subpart S] … because unqualified persons, by definition, do not have the training nor the skills necessary to perform work safely very close to electrical installations.”).

Subpart S addresses the distance at which an “unqualified person” must stay from an energized power line, and, under the facts of this case, it is a longer distance (10 feet) than what is prescribed in § 1910.269 (2 feet 4 inches). 29 C.F.R. § 1910.333(c)(3)(i)(A)(1); 29 C.F.R. § 1910.269(l)(2). In other words, an “unqualified person” must stay further away from an energized power line than a “qualified person.” A threshold issue in this case, therefore, is whether Respondent’s painters on the Edison project were “qualified.”

Furthermore, with regard to the alleged fall protection and training violations, a finding of whether Respondent’s workers were “qualified” also affects the standards at issue. For the alleged fall protection violation, the cited § 1910.269 standard requires all unqualified employees “to use fall protection any time they are more than 4 feet above the ground,” as opposed to specific situations in which a “qualified person” is not required to use fall protection. 29 C.F.R. § 1910.269(g)(2)(v) Note 2. With respect to the alleged training violation, the Secretary explains that Citation 2, Item 2 was pled in the alternative because, while the primary cited standard was the “more appropriate” standard cited in this case, Respondent was also required to comply with the requirements in subpart S. (Sec’y Br. at 62-63.) Indeed, § 1910.269 also requires an employer to comply with any other applicable section 1910 standard, notwithstanding § 1910.5(c) :

This section [1910.269] applies in addition to all other applicable standards contained in this Part 1910. Specific references in this section to other sections of part 1910 are for emphasis only.

29 C.F.R. § 1910.269(a)(1)(iii). As discussed below, the “qualified person” finding affects the applicability of the cited standards for the alleged training violation in that two of the standards cited in the alternative also apply to Respondent’s unqualified employees on the Edison tower.

            The analysis of whether Respondent’s employees were “qualified” follows the findings of fact.

Alleged Violations

The July 14, 2014 Amended Complaint alleges violations of the following standards, which standards are adjudicated in this case.

Citation 1, Item 1, the alleged electrical safety violation, alleges a serious violation of 29 C.F.R. § 1910.333(c)(3)(i)(A)(l), which provides:

The employer shall ensure that when an unqualified person is working in an elevated position near overhead lines, the location shall be such that the person and the longest conductive object he or she may contact cannot come closer to any unguarded, energized overhead line than 10 feet for voltages to ground 50 kV or below.

29 C.F.R. § 1910.333(c)(3)(i)(A)(l) (emphasis added); Amended Complaint at ¶ VII. The Secretary proposes a penalty of $7,000 for this citation item.

Citation 2, Item 1, the alleged fall protection violation, alleges a serious / repeat / willful violation of 29 C.F.R. §§ 1910.269(g)(2)(iii) and (g)(2)(v), which, according to the Amended Complaint, provide:

The employer shall ensure that each employee working at elevated locations more than 4 feet (1.2 meters) above the ground on poles, towers, or similar structures uses fall arrest equipment. The employer shall inspect body belts, safety straps, lanyards, and body harnesses before use each day to determine that the equipment is in safe working condition. Defective equipment may not be used.

Amended Complaint at ¶ VIII. The Secretary proposed a $46,200 penalty for this citation item in the Amended Complaint, but now proposes in his post-hearing brief that the penalty for this citation item should be the maximum statutory penalty of $70,000. (Sec’y Br. at 81.)

Citation 2, Item 2, the alleged training violation, alleges a serious / repeat violation of 29 C.F.R. §§ 1910.269(a)(2)(i) and (a)(2)(ii), which, according to the Amended Complaint, provide:

Employees shall be trained in and familiar with the safety-related work practices, safety procedures, and other safety requirements in this section that pertain to their respective job assignments. Qualified employees shall also be trained and competent in the skills and techniques necessary to: distinguish exposed live parts from other parts of electric equipment; determine the nominal voltage of exposed live parts; determine the minimum approach distances correspondent to the voltages to which the qualified employee will be exposed, and; the proper use of the special precautionary techniques, personal protective equipment, insulating and shielding materials, and insulated tools for working on or near exposed energized parts.

Amended Complaint at ¶ IX. Here, I find that, as discussed below, none of Respondent’s employees are “qualified.” To the extent that Respondent sent unqualified employees, and in some instances untrained employees, to work on the Edison tower within the minimum approach distance on this § 1910.269 project, I find that, as discussed below, Respondent violated the cited standard that addressed the training requirements for “qualified” employees. Further, I find that, as discussed below, the standards cited in the alternative also apply to Respondent’s workers in this case because these workers were not “qualified.”

For Citation 2, Item 2, the Secretary also alleges a serious / repeat violation of 29 C.F.R. §§ 1910.132(f) and 1910.332 (b)(1) and (2), which, according to the Amended Complaint, provide:

The employer shall provide training to each employee who is required to use personal protective equipment in the proper use, maintenance, and care of the personal protective equipment. Employees shall also be trained in and familiar with the safety-related work practices required by §§ 1910.331 through 1910.335 that pertain to their respective job assignments. Employees who are not qualified persons shall also be trained in and familiar with any electrically related safety practices not specifically addressed by §§ 1910.331 through 1910.335 but which are necessary for their safety.

(Sec’y Br. at 61); Amended Complaint at ¶ IX (emphasis added). The Secretary proposes a $14,000 penalty for this citation item.

 Respondent filed its Answer to the Amended Complaint on August 8, 2014. In its Answer, Respondent denied the specific Amended Complaint allegations and asserted the following affirmative defenses, among others: (1) excessive penalty in light of the small size of the employer, among other factors, (2) the violations, if any, were non-serious, (3) “adequate safety program run by knowledgeable supervisory personnel” for the alleged training violation, (4) training was done prior to allowing employees to perform work for the alleged training violation, (5) “Respondent ensured the effectiveness of training and that the employees had knowledge and skills needed to perform the operations safely” for the alleged training violation, (6) unpreventable employee misconduct for the alleged training violation, (7) all of the citations were not issued with “reasonable promptness,” (8) unpreventable employee misconduct for the alleged fall protection violation, (9) infeasibility for the alleged fall protection violation, (10) unpreventable third-party and / or owner misconduct for the alleged electrical violation, (11) unpreventable employee misconduct for the alleged electrical violation, (12) unforeseeability for the alleged electrical violation, (13) “third-party and / or owner assured that Respondent’s employees would not come into contact with energized electrical lines in the course of their work, and therefore, Respondent exercised reasonable diligence to ensure compliance with the [alleged electrical] standards,” (14) impossibility for the alleged electrical violation, (15) vindictive prosecution by the Secretary. Answer at ¶¶ IV-XXVIII.

Factual Background

I.   The Company – Tower Maintenance

A.  Officers and Employees

Tower Maintenance was created in 2008 by Elizabeth Vlahopoulos, Tower Maintenance’s President and sole owner. (Tr. at 783, 831, 908.) Ms. Vlahopoulos has worked for more than twenty years in the construction industry, working mainly in the office. (Tr. at 903-905.) Ms. Vlahopoulos’ husband, Peter Vlahopoulos, is Tower Maintenance’s project manager / supervisor and has been working for Tower Maintenance since it was created. (Tr. at 938-939.) Peter Vlahopoulos has always worked in the construction industry, has over 25 years of experience painting electrical towers, and has supervised “thousands” of painters. (Tr. at 1037, 1053.)

Tower Maintenance employs mainly seasonal workers, having only three year-round, office-staff employees. (Tr. at 833-834.) Its work is seasonal. Its seasonal staff of painters and project supervisors fluctuates with the work load, sometimes ranging from 10 - 30 employees. (Tr. at 833-835. See Tr. at 723.) According to Elizabeth Vlahopoulos, “everyone goes where the work is. That’s why we always share workers, like the guys from Morris [Painting] , they go to public utilities, they come to us, and everybody trains them.” (Tr. at 835.)

During the months of August to October of 2012, it was the “busy season” for painting. (Tr. at 696, 723.) Additionally, during the Edison project, Tower Maintenance experienced employee turnover and employees taking unscheduled days off. (Tr. at 698-699.) Some painters did not show up to work because of the nature of the job – it was intensive labor, in hot weather, and some workers needed a break. (Tr. 721-723.) As a result, Tower Maintenance continued to hire painters during the project in an effort to fully staff the crews. Some painters, including the deceased JV, were hired several weeks after the project began. (Tr. at 697-698, 722-723.)

The workers for the Edison project at issue here consisted of two teams, one led by supervisor Nikolaos Psareas and the other led by foreman Josimar Mackeivicz. (Tr. at 705-706.) On October 25, 2012, the Tower Maintenance employees engaged in tower painting work on the PSE&G Edison transmission tower painting project were JV, RS, Alessandro De Almeida, Alan Fonseca Alves, Marcelo Silva, Marcelo Leiroz, Ederson Trizotte, Osias Figugiredo, Caio Resende, Domingos Da Silva, and Euflates Passos. (Ex. J-1 at ¶¶ 12-13, 17-27.) The painters that testified in this case spoke primarily Portuguese, so they required an interpreter during depositions and at the hearing. (Tr. at 231-232, 235 (RS); Exs. C-30 at 7 (Da Silva), C-31 at 8 (Fonseca Alves).) Peter Vlahopoulos speaks no Portuguese, only English and Greek. (Tr. at 937.) Supervisor Psareas speaks English, Greek, and “some Spanish,” but “not much” Portuguese. (Tr. at 682.) Foreman Mackeivicz speaks Portuguese and “intermediate” English, and also required an interpreter at the hearing. (Tr. at 324-325, 1003-1004.)

B.  History of OSHA Violations

Tower Maintenance has a history of OSHA violations. (Ex. J-1 at ¶¶ 4, 5, 6; Exs. C-25, 26, 27; R-45, 46.) In 2011, Tower Maintenance settled an OSHA citation alleging violations of OSHA’s construction training and fall protection standards, after one of its employees fell from the tower he was painting in Macungie, Pennsylvania in 2010. (Tr. at 787, 896, 958-959, 961-962.) That employee was improperly tied off on a step bolt on a pole tower when he fell and died as a result of the fall. (Tr. at 787, 896, 958-962, 988-991.) Peter Vlahopoulos was the project manager on that project. (Tr. at 958.)

Tower Maintenance crafted a corrective action plan as a consequence of the 2010 Macungie accident. (Tr. at 784-788, 896, 927-928; Ex. R-3.) In the corrective action plan, which was submitted as part of its bid for the Edison project at issue here, Tower Maintenance stated that, due to the 2010 Macungie fall accident, Tower Maintenance has taken the following steps, among 5 steps, to prevent future occurrences:

1)  The competent person is to remain onsite at all times when workers are working at height;

2)  The competent person is to inspect each worker's harness and lanyard not only at the start of each day; inspection of all safety equipment will be made again as each worker comes down from working at height. This inspection shall be done routinely and repeatedly throughout the day and not only morning and at day's end.

(Tr. at 787-788; Ex. R-3 at TMC00731.) The corrective action plan is dated June 12, 2012. (Ex. R-3 at TMC00730.)

Before the creation of Tower Maintenance in 2008, Peter Vlahopoulos was the vice-president of another company, Tower Painting Company, Inc. (Tr. at 964-967, 971.) Elizabeth Vlahopoulos was also employed by Tower Painting Company, Inc., prior to the creation of Tower Maintenance. (Tr. at 906-907.) Tower Painting Company, Inc., also employed teams of painters and, in March 2007, also was cited for OSHA violations. (Tr. at 964-965, 980; Exs. C-46, C-47.) Tower Painting Company, Inc. received citations for failure to provide employees with adequate fall protection, failing to inspect employees’ PFAS devices for damage prior to each use, and failing to remove defective PFAS devices from service, among other citations. (Tr. at 980-85; Exs. C-46 at 2; C-47 at 13.) The citations were affirmed in a Commission final order. (Ex. C-47.) See Tower Painting Co., Inc., 22 BNA OSHC 1368 (No. 07-0585, 2008). Peter Vlahopoulos participated in the informal conference discussions with OSHA for that proceeding. (Tr. at 980; Ex. C-51.) 

A.  The Project – Edison, New Jersey

1.   Contract and Scope of Work

Tower Maintenance contracted with New Jersey franchise utility company, Public Service Electric and Gas (PSE&G), to paint 214 steel “lattice-type transmission support structures,” also known as “electric transmission towers,” along highway Route 1 from Trenton to Edison, New Jersey. (Tr. at 468-469.) PSE&G wanted these structures painted as a maintenance function, to protect the towers from weathering, and to “extend the life of the structure.” (Tr. at 469.) As part of the bid process, PSE&G required companies to submit a proposal package that included a site-specific safety plan and a job hazard analysis. (Tr. at 478.) As part of its proposal, Tower Maintenance submitted a site-specific safety plan, entitled Health and Safety Plan (HASP) for PSE&G: Transmission Structure Painting Project & Lead Paint Remediation RFP 31368 Various PSE&G Transmission ROW – New Jersey. (Tr. at 478; 942-943; Ex. C-3.) It was dated June 11, 2012. (Ex. C-3 at 1.) PSE&G requires bidders to submit such a plan as part of the bid package so that PSE&G has “a level of confidence that they have a plan and they know the work that they’re [d]oing and the hazards of the work that they’re doing.” (Tr. at 478.) Tower Maintenance also submitted a PSE&G Contractor Safety Qualification Questionnaire as part of PSE&G’s vendor approval process. The safety questionnaire was signed by Elizabeth Vlahopoulos. (Tr. at 477-478, 785; Ex. R-3.)

After Tower Maintenance was awarded the contract, PSE&G held a “pre-construction” meeting with Tower Maintenance to go over:

…bringing them on the property, reviewing the scope of work, talking about expectations, safety, you know, they're expected to follow, their health and safety plan, wear all the proper PPE. We also covered, you know, a hundred percent attachment. We covered the lines would be energized. We covered where they would be staging from. We covered how they're going about collecting the paint chips that are scraped off of the structures. We talked about general housekeeping in and around the PSE&G right-of-way. We talked about, you know, there'd be a PSE&G representative at the assigned project and that would be their point of communication for anything that they needed. We talked about that person would also be there to escort them on and off the right-of-way in a legal fashion and so forth.

(Tr. at 480-481.) The record shows that Tower Maintenance’s project manager / supervisor Peter Vlahopoulos and supervisor Nikolaos Psareas attended this meeting. (Ex. C-1 at 4.)

The towers that were to be painted were made of steel and were similar, but varied slightly, in design. (Tr. at 468, 506; Ex. C-30 at 72.) Each tower had a “body” or “cage” that consisted of the main structure itself, and also “arms,” on which the energized power lines were attached. (Tr. at 469, 483. See, e.g., Ex. C-14.) This “lay-out” of the energized power lines varied by the tower, i.e., some towers had energized power lines attached to the arms located nearer to the tower body than others. (Ex. C-30 at 37.) The tower at issue had a total of 10 arms (two arms on either side of the tower, at five different levels) that supported 12 insulators carrying power lines attached to the arms . (Tr. at 485-495; Ex. C-40.) As relevant to this case, the power line of interest, power line No. 3, was attached to the subject tower’s arm about 2-3 feet from the edge of the tower body. (Tr. at 153, 155-156, 285, 537-538; Exs. C-9, C-14, C-14B, C-14D, C-15A, C-15C, C-30 at 6-19, C-31 at 105-108, C-40.) Power line No. 3 was energized at 26 kV and was attached to the arm that was approximately 60 feet above the ground. (Tr. at 487, 495; Exs. C-14F, C-40.) Also on the tower was a ladder made up of step bolts that ran up one leg of the tower to the tower’s mid-level, and then the step bolt ladder ran up the centerline of the cage to the top of the tower. (Tr. at 138-139; Exs. C-14A; C-31 at 66.) Power line No. 3 was 6 feet 5 and ½ inches from the centerline of the tower. (Tr. at 492.)

Tower Maintenance contracted with PSE&G to paint only the tower body, not the arms where the power lines were attached. (Tr. at 431, 455, 483, 1044; Ex. C-1.) When beginning to paint a tower, the painters would climb up the step bolt ladder to their designated position within the truss structure, and then they would paint the truss structure of the tower around them. During the painting of a tower, members of the painting team would therefore be positioned at varying levels along the height of the tower. The painters first applied red colored primer to the towers and then painted the towers greenish-gray, twenty-four hours after the primer had been applied. (Tr. at 253-254, 259). The Keeler and Long paint, containing zinc dust, used by the painters on this project wa s conductive. (Exs. C-19, C-29).

The method by which they painted was as follows: each painter carried two paint buckets, one on each hip, up the tower to his location. (Tr. at 254-255; Exs. C-30 at 45; C-31 at 66-67.) The painter stowed one paint bucket as reserve on a nearby step bolt or open area, and then proceeded to paint the tower using the other bucket. (Ex. C-31 at 66-67, 106-107.) By using a personal fall arrest system (PFAS) device, each painter had a certain amount of flexibility with his hands. They wore painting mitts on each hand, dipped their hands into the bucket of paint, and hand-painted the truss structure using their painting mitts. (Tr. at 256-257, 699-700, 1040-1042; Exs. C-30 at 46; C-31 at 69.) No brushes were used. Pictures and testimony in the record show that the painters got covered with paint head-to-toe as the painting job progressed. (Tr. at 257-259; Exs. C-28, C-30 at 63-66.) The painters got covered in paint because they were leaning against the freshly painted tower cage out of necessity to reach other parts of the tower cage. (Tr. at 305, 1052-1053; Ex. C-30 at 65.) The painters would latch and re-latch their PFAS device as they moved around the truss to paint the entire structure with their painting mitts. (Tr. at 891-892.) Because they were latching and re-latching their PFAS device, the clips on their PFAS device also got covered in paint because they could not take their painting mitts off during the repositioning. (Tr. 348, 700; Ex. C-30 at 66.)

According to Tower Maintenance, each painter was instructed to stay within the cage, or the truss structure, and not to venture out onto the arms where the electric distribution lines were attached. (Resp’t Br. at 11, 17.) The testimony from the painters, however, indicates that this was not clearly, effectively, communicated to them. According to Da Silva, they painted the arms on some towers, and by doing so, emerged out of the tower cage. (Ex. C-30 at 50.) Da Silva, however, testified that the arms for the tower at issue here were not to be painted. (Ex. C-30 at 74.) Fonseca Alves, on the other hand, testified that all of the arms for this tower were to be painted. (Ex. C-31 at 104.)

Each tower took about one to two hours to paint. By the end of October, the painters typically painted eight to ten towers per day. (Tr. at 256; 425-426.) On October 25, 2012, the team was on their third tower for that day when the accident occurred. (Tr. at 287.)

2.   Project Supervision and Project Safety

Neither Elizabeth nor Peter Vlahopoulos directly supervised the painters on the worksite. Elizabeth Vlahopoulos visited the Edison project once between August and October 25, 2012. (Tr. at 911.) Peter Vlahopoulos visited the Edison project once or twice per week, dividing his time between the Edison project and another project. (Tr. at 1020-1021.) The two leaders on the Edison project were supervisor Nikolaos Psareas and foreman Josimar Mackeivicz. (Tr. at 705-706.)

As the supervisor, Psareas had the duty and responsibility to “follow through on the work and make sure we all work safely, and coordinate all the jobs through PSE&G.” (Tr. at 685.) He also was responsible for overseeing the progress of the job, making sure the job was done properly, and making sure everyone was following the safety rules. He had the authority to discipline employees and direct the work being performed. (Tr. at 685-686.)

As the foreman, Mackeivicz would supervise his painters from the ground, looking up at the painters using binoculars. (Tr. at 1011-1012.) He testified that if he saw a painter working without being tied off, he would yell up to him and give him a verbal warning. (Tr. at 1012.) After that, according to Mackeivicz, the employee would have to leave the job site if he saw him working without being tied off again. (Tr. at 1012.) Mackeivicz testified that he had to give two verbal warnings on the project at issue. (Tr. at 1012.) However, foreman Mackeivicz testified that he was not responsible for the safety of the employees. “I was responsible for telling them the details of the job, what was supposed to be done by them, but not for their safety.” (Tr. at 333.) He had the authority to discipline employees and to recommend to his superiors “for someone to be fired.” (Tr. at 333.)

The only formal Tower Maintenance safety policy in the record is the Health and Safety Plan (HASP) that was submitted to PSE&G as part of Tower Maintenance’s bid package. (Ex. C-3.) In the HASP, Peter Vlahopoulos and Nikolaos Psareas are noted as safety supervisors: Peter Vlahopoulos as the Project Director and Psareas as the Health and Safety Officer. (Ex. C-3 at 4-5.) Both were responsible for safety on the project worksite. Peter Vlahopoulos was ultimately responsible for complying with the OSHA regulations. (Tr. at 944; Ex. C-3 at 4-5.) Although required by the HASP, the record does not contain any evidence that Tower Maintenance reviewed the HASP with its painters or required them to fill out an agreement stating that they would comply with its requirements. (Ex. C-3 at 6.) Foreman Mackeivicz testified that he was never shown the HASP before or during the Edison project at issue. (Tr. at 336.)

At the beginning of a typical workday, supervisor Psareas and foreman Mackeivicz met their crews in the morning, at about 6:00 a.m., at a staging site. (Tr. at 262-263.) At this staging site, the crew cleaned and gathered their supplies, which included a PFAS device, and listened to instructions, if any, from Mackeivicz, who translated Psareas’ instructions from English to Portuguese. (Tr. at 263, 353, 737, 1008, 1013.) Accounts differed on whether the instructions included safety – but the weight of the evidence establishes that the painters experienced and expressed safety concerns on the worksite. Regarding the power lines, painters reported that if they got too close to the power lines the hair on their skin would stand up. (Tr. at 252-253; C-31 at 84.) Regarding their PFAS device, all of the painters in this case testified that they had concerns about their PFAS device operating correctly and frequently brought concerns regarding their PFAS device to the attention of supervisor Psareas and foreman Mackeivicz. The painters were concerned about their paint-covered “pelican” clips because the paint would cause the clips to jam and not close all the way. (Tr. at 144; 279-280, 347-348, 701-702; Ex. C-30 at 58-60; Ex. C-31 at 79-81.) Most of the time, the request for a new PFAS was rejected and the painters were instead told to clean their PFAS device more thoroughly. (Tr. at 279-280; Ex. C-30 at 58-60; Ex. C-31 at 79-81.)

Additionally, all of the painters, and the supervisors, including Peter Vlahopoulos, testified that accepted uses on the Tower Maintenance worksite of the PFAS device included: (1) wrapping the lanyard around a cross-bracing and attaching the clip back onto the lanyard itself, and (2) clipping onto step bolts. (Tr. at 272-274, 346-347, 703-704, 958, 990-991; Exs. C-30 at 87-90, C-31 at 76-77, 109-111; Ex. R-50 at 37-38.) Sometimes, “on rare occasions,” painters did not tie off at all when their PFAS device prohibited them from reaching certain areas of the tower to paint. (Resp’t Br. at 14; Exs. C-30 at 88-89; C-31 at 76.)

3.   Training

The training evidence in the record is illuminating, revealing the employees who had received training, the type of training received, and the employees who had not received any training. (See App’x B.) Elizabeth Vlahopoulos took construction courses at Baruch University after high school, including estimating and construction management. (Tr. at 911-912.) According to Ms. Vlahopoulos, she is “a C3 of a NACE Inspector level 2,” meaning that she is authorized to inspect paint coatings, for example on a bridge project. (Tr. at 912.) She has no degree in electrical engineering or physics. (Tr. at 912.) Ms. Vlahopoulos also testified:

Q: So you have no real formal education in the field of electrical behavior, how electricity behaves; correct?

A: I believe I have what I'm required to have for painting, yes. If the requirements -- if I'm required to have more at some point, I will get more.

(Tr. at 912.) The record shows that she attended a “C-5 Supervisor / Competent Person Refresher Training for Deleading of Industrial Structures” training course on June 11, 2012. (Ex. C-22 at 14-16.)

Peter Vlahopoulos took a certified climbing course, and also attended the “C-5 Supervisor / Competent Person Refresher Training for Deleading of Industrial Structures” training course on June 11, 2012. (Tr. at 991; Ex. C-22 at 14-15, 18.) He did not personally provide training to any employee on the Edison project at issue. (Tr. at 941.)

Supervisor Psareas and foreman Mackeivicz took training courses in the following subject areas in the spring of 2012 and in August 2012: Fall Protection, OSHA 10, Electrical Arc Flash Safety, Authorized Climber, and Sub Station Awareness. (Tr. at 1013; Exs. C-2; C-22 at 5-7; C-23 at 4-6; C-24 at 4, 5-13, 86, 91-99, 107). In addition, foreman Mackeivicz took Tower Rescue & Competent Climber training (Ex. C-24 at 108-121). After the October 25, 2012 fatal accident supervisor Psareas took a Competent Tower Climber / Rescuer Training in November 2012. Supervisor Psareas also previously took the following training courses: Boots on the Roof (2009), OSHA 10 (2010), Lead Contractor and Lead Supervisor (1996). (Ex. R-38; Ex. R-50 at 19-24.) Neither supervisor Psareas nor foreman Mackeivicz personally trained or checked previous training certificates of the Tower Maintenance painters for the Edison project. (Tr. at 335-336; 688-689.)

With regard to JV, RS, Fonseca Alves, and Da Silva, the four workers central to this case, the record shows the following training occurred in the spring – fall of 2012: Fall Protection (Fonseca Alves, Da Silva, RS), OSHA 10 (Fonseca Alves), Electrical Arc Flash Safety (Fonseca Alves), and Authorized Climber (Fonseca Alves.) (Exs. C-22, 23, 24.) The record does not contain any training certificates for the deceased JV.

The parties stipulated that on October 25, 2012, the day of JV’s electrocution and RS’ fall, Tower Maintenance employed at least twenty-five employees. (Ex. J-1 ¶¶ 11, 19.) The parties further stipulated that eleven employees were employed that day engaged in tower painting work on the PSE&G transmission tower painting project. (Ex. J-1 ¶¶ 17 through 27; App’x B.) Of those, the record reveals that six of the tower painters had received no training from Respondent. The record does not contain any training certificates for Marcelo Leiroz, Ederson Trizotte, Osias Figugiredo, Domingos Da Silva, Euflates Passos, or JV. (Ex. J-1 ¶¶ 21-23 and 25-27.)

4.   The Accident

The painting crew for a single tower consisted of approximately three to six painters and one supervisor. (Tr. at 255.) On October 25, 2012, there were two crews. (Tr. at 705-706.) After the morning meeting was over, the crews loaded up into a truck and headed over to a tower. (Tr. at 264.) Supervisor Psareas’ crew went to the tower at issue. Foreman Mackeivicz and his crew went to another tower about a mile away. (Tr. at 345.)

Once they got to the tower, Psareas’ crew waited until the representative from PSE&G gave them permission to ascend the tower and start painting. (Ex. C-30 at 70-71.) While they were waiting for Psareas to talk with the PSE&G representative, the painters prepared their paint. Once given permission, the painters ascended the tower to their designated positions. The record establishes that the painters designated their positions themselves. (Tr. at 264; Exs. C-30 at 70-71; C-31 at 93-97.) Psareas left the worksite to make a telephone call after two painters began ascending the tower, “some of the guys were doing the floor,” and before the other painters started ascending the tower. Psareas did not see the accident. (Tr. at 706.)

Psareas’ crew included the following painters positioned from the top of the tower on down: Fonseca Alves, JV, Da Silva, and RS. (See, e.g., Ex. C-30 at 71; Ex. 14B). According to OSHA Compliance Officer (CO) Lonnia Simmons, she was told that JV was working at an approximate 70 feet height and that RS was at a 40 feet height at the time of the accident. (Tr. at 151.) JV and Da Silva were stationed closest to each other. According to Da Silva, he was sitting down inside the tower getting ready to paint when he watched JV climb the ladder and step off to the other side within the tower cage near the No. 3 power line. (Ex. C-30 at 75-76.) Da Silva turned his head, and in a matter of seconds, heard a loud noise like a bomb. (Ex. C-30 at 85-87.) He then saw JV fall and hit RS, who was climbing below, according to Da Silva. (Ex. C-30 at 85.) According to Fonseca Alves, JV followed him up the step ladder. (Ex. C-31 at 100-101.) As he was getting off the ladder at his designated location, JV asked Fonseca Alves what section to paint. (Ex. C-31 at 100-101.) Fonseca Alves then continued up ten step bolts, and then heard a loud explosion. (Ex. C-31 at 98.) He did not recognize at first what happened, but then he saw both JV and RS on the ground below. (Ex. C-31 at 98-99.) RS could not recall the events leading up to the accident. (Tr. at 288-289.)

Fonseca Alves identified, in a photograph, a strip of green paint, the color they were using that day, on the tower cage that JV had painted. (Exs. 15C; C-31 at 106.) According to Fonseca Alves, the No. 3 power line would have been 2 – 2 ½ feet from a painter’s back when he painted that green strip. (Ex. C-31 at 108.)

5.   Post-Accident Investigation

At 12:02 p.m. on October 25, 2012, the Edison police department investigated the accident to ensure that it was an accident and not a crime. (Tr. at 73-74.) Upon arrival, the police department investigator saw emergency vehicles from the police department, fire department, the New Jersey state police, and emergency medical services. (Tr. at 75.) The investigator spent forty minutes at the worksite and took photographs of the accident scene. (Tr. at 78, 88; Exs. C-10, C-14, C-15, C-16.) He then collected safety harnesses and took them back to the police department headquarters as evidence. (Tr. at 86-87.) An autopsy performed on JV concluded that the cause of his death was electrocution. (Ex. C-12 at 5; J-1 ¶ 14.)

As a result of a media referral, OSHA CO Simmons conducted an investigation of the worksite. (Tr. at 113-114.) She arrived at the worksite at 1:30 p.m. on the day of the accident. (Tr. at 114.) When she arrived, only the PSE&G representative and two police officers were there. (Tr. at 115.) Debris, including paint buckets, was on the ground. (Tr. at 115.) The Tower Maintenance employees had been taken to the Edison police department to be interviewed. (Tr. at 117.) CO Simmons spoke with Elizabeth and Peter Vlahopoulos by telephone the following day, and eventually spoke with Nikolaos Psareas and Robert Palermo. (Tr. at 119.) In June 2013, several months after the October 2012 accident, CO Simmons went to the police department and took pictures of the harnesses that had been taken into evidence on the day of the accident. (Tr. at 171-172; Exs. C-17, C-18.)

Discussion

Were Respondent’s employees “qualified”?

As discussed above, the threshold issue in this case is whether Respondent’s employees were “qualified” persons to work on the tower at issue here. For the following reasons, I find that the record evidence establishes that these painters were not “qualified,” as defined in the cited standards. Furthermore, I find that supervisor Psareas and foreman Mackeivicz also were not “qualified.”

The term “qualified person” is defined in both subpart S at 29 C.F.R. § 1910.399, “Definitions applicable to this subpart,” and at 29 C.F.R. § 1910.269(x), “Definitions.” Subpart S defines the term “[q]ualified person” as “[o]ne who has received training in and has demonstrated skills and knowledge in the construction and operation of electric equipment and installations and the hazards involved.” 29 C.F.R. § 1910.399. Section 1910.269 provides that a “[q]ualified employee (qualified person) [is] one knowledgeable in the construction and operation of the electric power generation, transmission, and distribution equipment involved, along with the associated hazards.” 29 C.F.R. § 1910.269(x). I find that, under either definition, the Secretary has established that painters RS, Da Silva, and Fonseca Alves, and the deceased JV, were not qualified persons with regard to the electric safety-related hazards involved with the electric transmission tower they were painting on October 25, 2012.

The Secretary asked three of these employees questions related to aspects of the qualifications of a “qualified person,” as defined in both subpart S and § 1910.269. Both definitions require, at a minimum, familiarity with “nominal voltage” and knowledge of “clearance distances / minimum approach distances” with respect to a specified voltage. 29 C.F.R. § 1910.332(b)(3); 29 C.F.R. § 1910.269(a)(2)(ii). With regard to “nominal voltage,” the Secretary asked RS, Da Silva, and Fonseca Alves whether they were “familiar with the term nominal voltage,” and whether they knew how to calculate the “nominal voltage” of an overhead electrical / transmission power line or a circuit. (Tr. at 250-251; Ex. C-30 at 33; Ex. C-31 at 42-43.) None of them answered in the affirmative. (Id.) The Secretary also asked them if they knew what the “minimum approach distance” was for a 26 kilovolt power line. (Tr. at 252; Ex. C-30 at 35; Ex. C-31 at 45-46.) None of them testified that they knew the answer. (Id.) Da Silva testified that he has never known the answer to that question. (Ex. C-30 at 35.) Da Silva testified that he was told that the minimum approach distance for a 138 kilovolt power line was 6 feet, and that in any case, he always stayed within “the box” and would never “get near” any power lines. (Ex. C-30 at 35-36.) Fonseca Alves testified that he was told to stay at least 6 feet from any cable on the arms of a power tower. (Ex. C-31 at 43-44.)

The answers to the Secretary’s questions establish that painters RS, Da Silva, and Fonseca Alves lack the requisite familiarity with regard to determining the nominal voltage of an exposed power line, as well as the appropriate clearance distance / minimum approach distance for an exposed 26 kilovolt power line. 29 C.F.R. § 1910.332(b)(3); 29 C.F.R. § 1910. 269(a)(2)(ii). These painters therefore were not “qualified persons” at the Tower Maintenance worksite on October 25, 2012.

With regard to JV, there is little evidence in the record regarding his familiarity with “nominal voltage” or the requisite clearance distance / minimum approach distance with respect to a given voltage. The record, however, establishes that JV was never trained in this area. JV was hired two weeks before the incident on October 25, 2012. (Tr. at 183.) Tower Maintenance did not train JV during that two-week period. He was scheduled to take training in November 2012. (Tr. at 183. See App’x B.) According to the CO, Tower Maintenance alleged that JV presented them with a training certificate from where he worked prior to joining Tower Maintenance before he was hired. (Tr. at 183.) The certificate was not produced to the Secretary during this proceeding because, according to Respondent, the record allegedly was lost during Hurricane Sandy. (Tr. at 184; Resp’t Br. at 14.) Instead, Respondent produced the names of the training providers it used to train its employees. (Ex. C-6 at ¶ 9, Responses to Secretary’s Interrogatories.) All of the training providers provided affidavits denying that they had any records that they trained JV. (Exs. C-22, C-23, C-24; App’x B.)

 Respondent also stated that “to ensure the adequacy of training, the main office verifies the completion of training and completion of new hire orientation documents.” (Ex. C-6 at ¶ 9, Responses to Secretary’s Interrogatories.) Respondent claimed that foreman Mackeivicz and supervisor Psareas were in charge of ensuring adequate training of its employees. (Ex. C-6 at ¶ 5.) Respondent further claimed that “[t]he competent person verifies [the new hire’s] work ability and knowledge directly in the field.” (Ex. C-6 at ¶ 9.) However, both foreman Mackeivicz and supervisor Psareas testified at the hearing (1) that they were not responsible for safety training and (2) that they did not check the training certificates of their employees. (Tr. at 335-336; 688-689.) This testimony not only contradicts Respondent’s claim, but it also supports the Secretary’s claim that Respondent did not check for JV’s training certificates before letting him work on the transmission tower.

Based on this record evidence, the Secretary has established a prima facie showing that JV was not trained or certified in the work he was performing on the Tower Maintenance Edison project worksite. Respondent failed to rebut this showing with any supportive evidence even though it is in the best position to provide such evidence. Well Solutions, Inc., Rig No. 30, 17 BNA OSHC 1211, 1214-15 (No. 91-340, 1995)(holding that the Secretary can rely on “best available evidence” to establish decedents’ lack of training and that slim showing of prima facie case is sufficient absent rebuttal by party who has “full possession of all the facts.”) Therefore, I find that the Secretary has established based on the evidence above that JV was also not a “qualified person” as used in 29 C.F.R. § 1910.332(b)(3) and 29 C.F.R.§ 1910. 269(a)(2)(ii), because he was never trained in the hazards under these standards.

Moreover, the record does not establish that supervisor Psareas and foreman Mackeivicz had the requisite training and competence of a “qualified person” as required under 29 C.F.R. § 1910. 269(a)(2)(ii). Although their training certificates reflect recent training in fall protection and arc flash (two courses directly applicable in this instance), both Psareas’ and Mackeivicz’s answers to questions at the hearing did not reflect competence in these areas. (See App’x B.) Their answers were non-committal or evasive, and in some instances, self-incriminatory. For example, Psareas knew that to work within 10 feet of an exposed 26 kV power line, a worker had to be qualified. (Tr. at 743.) Yet, he passed off to PSE&G the responsibility of determining whether a “qualified” person should be able to calculate nominal voltage. (Tr. at 743.) Similarly, with Mackeivicz, he knew that the calculation of a minimum approach distance depended on voltage, which could vary by the tower. (Tr. at 349.) Yet, he did not know how to answer the following question: “How do you calculate the nominal voltage of a power line?” (Tr. at 349.) The responses by both Psareas and Mackeivicz, the supervisor and foreman on Respondent’s Edison project, illustrate knowledge of what is required, but not competence to be able to implement what is required. Therefore, I find that supervisor Psareas and foreman Mackeivicz also were not qualified to paint the Edison electric transmission tower supporting energized electric lines, raising questions about whether they were suitable to supervise the unqualified painters working on the Edison project tower on October 25, 2012.

Merits of the Alleged Violations

To prove a violation of an OSHA standard, the Secretary must establish that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the employer knew or could have known of the condition with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 691 (D.C. Cir. 1980).

I.    Serious Citation 1, Item 1: Alleged Electrical Safety Violation

The Secretary alleges that Tower Maintenance violated 29 C.F.R. § 1910.333(c)(3)(i)(A)(1), which provides:

When an unqualified person is working in an elevated position near overhead lines, the location shall be such that the person and the longest conductive object he or she may contact cannot come closer to any unguarded, energized overhead line than the following distances: (1) for voltages to ground 50 kV or below – 10 ft.

29 C.F.R. § 1910.333(c)(3)(i)(A)(1). The Secretary claimed the following:

(a) Tower Maintenance Corporation / Route 1 North Edison, NJ Site – Electric Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at the lower level and 138 kV from the middle to the upper levels: on or about 10/25/2012, the employer failed to ensure that unqualified employees who performed work from an elevated position near overhead lines were located in a position such that the employee, or any conductive object used by the employee, did not come within 10 feet of any unguarded, energized overhead line.

Amended Complaint at ¶ VII.

A.  The Secretary has established that 29 C.F.R. § 1910.333(c)(3)(i)(A)(1) applies

As noted above, the working conditions cited for this alleged violation fall under  §1910.269. However, a threshold issue is whether the Tower Maintenance painters were “qualified” employees as defined in the cited standard. As discussed above, I find that the record evidence establishes that the painters were not “qualified.” Therefore, the cited standard under subpart S applies to the electrical safety-related hazards in this case. These painters were obligated to keep at least a 10 foot distance from the energized 26 kilovolt power line at issue in this case in compliance with 29 C.F.R. § 1910.333(c)(3)(i)(A)(1).

Respondent claims that the citation should be vacated because the Secretary has not established that any standard applies to the facts of this case. (Resp’t Br. at 8.) With regard to the cited standard and the standard cited in the alternative, Respondent claims that they “lack clarity” and are “contradictory in terms of what behavior is required for compliance.” (Resp’t Br. at 9.) Respondent seems to argue that the standards are contradictory because each standard has a different approach distance for “qualified persons.” (Resp’t Br. at 9-10.) Respondent’s unsupported argument in this regard is rejected. First, as discussed above, the employees at issue here are not “qualified persons,” so Respondent’s argument is not dispositive. Second, § 1910.269 applies to qualified persons on transmission towers, a situation that is more specific than the general provisions for “qualified persons” set forth in subpart S. The standards are therefore not contradictory.

Respondent further argues that the entire citation should be vacated because, as evidenced by the Secretary’s multiple amendments to the citation, Respondent lacked fair notice and “[w]as left to guess for itself which of three separate standards needed to be adhered to[.]” (Resp’t Br. at 11.) For the following reasons, Respondent’s arguments are rejected.  

First, Commission rules allow for filing alternative claims. 29 C.F.R. § 2200.30(e). The Secretary followed the Commission’s rules in filing an unopposed motion to amend the citation to allege alternative claims under different standards, and the unopposed motion was approved after finding no evidence of prejudice to Tower Maintenance. See Order Granting the Secretary’s Motion to Amend the Citations and Complaint (July 31, 2014). Respondent subsequently stipulated that 29 C.F.R. Part 1910, as opposed to the original cited standards under Part 1926, applied to the work that was performed at the worksite at issue in this case. (Ex. J-1 at II ¶ 4.)

Second, as the Secretary points out, the applicability of the cited standard depended on a factual issue, whether Tower Maintenance’s employees were “qualified,” that was to be litigated. (Sec’y Reply Br. at 2.) It was not because, as Respondent claims, “the government cannot decide upon which regulation was violated[.]” (Resp’t Br. at 8.) And, as discussed above regarding the amendments to this citation, the record shows that Respondent had the opportunity and did fully litigate the factual and legal issues in the Amended Complaint. Nat’l Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973)(“So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue.”).

Finally, it is noted that Respondent’s own HASP includes a table of minimum approach distances that is almost identical to OSHA’s Table R-6, which is incorporated by reference to the standard cited in the alternative, i.e., the standard that would apply if the evidence showed that Tower Maintenance’s employees were “qualified.” 29 C.F.R. § 1910.269(l)(2). (Ex. C-3 at 19 “App’x A.”) Respondent’s due process claim is rejected.

The Secretary has established that the cited standard, 29 C.F.R. § 1910.333(c)(3)(i)(A)(1), applies.

B.  The Secretary has established that Respondent violated the cited standard

The Secretary argues that Respondent violated the cited standard when its employees came within 10 feet of the energized power line while painting the transmission tower. (Sec’y Br. at 26.) There is no evidence in the record that shows the accident itself, or that establishes the precise distance between any one Tower Maintenance employee and any one power line. Respondent relies on this lack of evidence to claim that the Secretary failed to establish a showing of noncompliance with the standard. Respondent claims that the Secretary has failed to: (1) show “any evident causal link between the violations charged and the proffered cause of the accident,” and (2) “provide a reliable measurement” of the distance between JV and the energized line. (Resp’t Br. at 8.) For the following reasons, Respondent’s arguments are rejected.

With regard to Respondent’s first argument, that the Secretary failed to show a causal link between the alleged violation and the accident itself, the record does not support Respondent’s claim. Both the cited standard and the standard cited in the alternative restrict not only an employee from approaching too close to an energized power line, but also any conductive object that is connected to that employee. See 29 C.F.R. § 1910.333(c)(3)(i)(A)(1) (“the location shall be such that the person and the longest conductive object he or she may contact cannot come closer to any unguarded, energized overhead line than the following distances: (1) for voltages to ground 50 kV or below – 10 ft.)(emphasis added); 29 C.F.R. § 1910.269(l)(2) (“no employee approaches or takes any conductive object closer to exposed energized parts than [2 feet 4 inches].” (emphasis added)).

The Secretary’s expert opined that the most likely cause of the electrocution was that JV brought the conductive paint he was using too close to an energized power line. (Tr. at 620-625.) He came to this opinion based on his review of the nature of JV’s burns from the autopsy report and the nature of burns from JV’s PFAS device. He ruled out the possibility of direct contact between JV and a power line because his burns were not severe enough. (Tr. at 621.) He ruled out the possibility that JV’s lanyard contacted the power line because he did not see any burn marks on the lanyard or lanyard clip. (Tr. at 621.) Rather, JV had less severe burns on his thumb and another finger, and a more severe burn on his thigh. (Tr. at 622.) Therefore, he concluded that an arc, rather than direct contact, with the power line must have occurred, and it must have occurred through the conductive paint. (Tr. at 622.) The electricity then travelled to and through JV, and then grounded, through JV’s thigh, with the tower, which JV was most probably straddling. (Tr. at 623-624.) The expert ruled out the possibility that JV fell first and then fell into an energized power line because JV’s burns were inconsistent with such a situation. His burn injuries would most probably have been more numerous, “[t]here would be entry and exit burns with every part that contacted the line[,]” and would have been more severe, such as “amputations of at least a finger” through the direct contact. (Tr. at 625-626.) Respondent does not dispute this portion of the expert’s testimony.

Respondent, instead, claims that the Secretary’s expert testified that “there was no maximum limit to the distance that the electrical arc could have traveled from the circuit in question before coming to ground via contact with JV,” seeking to argue that the expert’s opinion cannot establish that JV was within the restricted distance to the energized power line. (Resp’t Reply Br. at 3.) Respondent, however, misunderstands the expert’s testimony. The expert testified, “[a]fter the arc is established,” there is no limit to the distance “you can move through the ionized air.” (Tr. at 648.) The cited standard seeks to prevent establishing the arc in the first place, which according to the Secretary’s expert, unfortunately occurred here.

The Commission case, Par Electrical Contractors, Inc., 20 BNA OSHC 1624, 1626 (No. 99-1520, 2004) is similar to this case because it involved an electrocution, no eyewitness to the actual incident, and a minimum approach distance. In Par, the Commission used “reasonable inferences from circumstantial evidence” and found a breach of a 2 foot approach distance based on the decedent’s wounds in the autopsy report. Respondent claims that Par is not applicable here because Par’s employees were not painters but were manually installing electrical wire only 2 and 1/4 inches from the approach distance’s outer limit. (Resp’t Reply Br. at 2.) Respondent, however, has not addressed the Secretary’s point: that the Commission has previously relied on reasonable inferences based on circumstantial evidence to find a violation of a minimum approach distance based on the electrocuted decedent’s injuries. Additionally, Respondent does not offer any evidence to contradict the Secretary’s expert’s opinion as to the cause of the electrocution. It is reasonable to infer in this case that JV, and a conductive object he was in contact with, came within the minimum approach distance of 10 feet to the 26 kV transmission line because he was electrocuted. This finding is also based on the expert witness’ opinion regarding JV’s burn marks.

With regard to Respondent’s second argument, that the Secretary failed to provide a reliable measurement of how close JV came to an energized power line, the record also does not support Respondent’s claim. Precise evidence is not required to establish a violation here. The Secretary relies on the evidence in the record that establishes the range at which JV, and a conductive object he was in contact with, could have been from the No. 3 power line, and it is less than 10 feet.

It is undisputed that Tower Maintenance’s employees climbed up the tower using a ladder made of step bolts that ran up one leg of the tower to the tower’s mid-level, and then the step bolts ran up the center line of the cage to the very top of the tower. (Tr. at 138-139; Exs. C-14a; C-31 at 66.) The record shows that the energized power line No. 3 was located above mid-level, so that the step bolt ladder at the horizontal level of power line No. 3 ran up the center line of the tower. (Ex. C-14a.) Power line No. 3 was 6 feet 5 and ½ inches from the centerline of the tower. (Tr. at 492.)

Therefore, any Tower Maintenance employee who scaled the ladder came within the restricted distance when passing the No. 3 power line, and therefore violated the 10 foot minimum approach distance. The record shows that painter Fonseca Alves climbed up the step bolts past power line No. 3 on his way to the top of the tower. (Ex. C-31 at 97, 100; Ex. C-14C.) JV also dismounted the step bolt ladder and went to the side of the tower cage closest to power line No. 3. (Ex. C-30 at 76, 80-81; 104; C-31 at 97-98.) At a minimum, both employees Fonseca Alves and JV were 6 feet 5 and ½ inches from the power line No. 3 while they were scaling the step ladder up past power line No. 3 – well within the restricted distance, 10 feet, of the cited standard.

Moreover, from the center line of the tower body (which is the furthest any employee could be, in the power line’s horizontal plane, from a given power line due to the symmetric nature of the power lines attached to either side of the electric transmission tower), most of the power lines were less than 10 feet; two were 12 feet. (Tr. at 490-494; Exs. C-14F, C-40.) The narrowest width of the tower cage was 4 feet 8 inches. (Tr. at 495; see also Ex. C-40.) It follows that, from the edge of the tower cage, none of the power lines were more than 10 feet. (Tr. at 495.) Therefore, any employee painting the edge of the tower cage would have been closer than 10 feet, horizontally, to any one of the power lines.

The record also supports a finding, based on circumstantial evidence, that JV breached the 2 feet 4 inch restricted distance provided under the standard cited in the alternative. Testimonial accounts place JV within the tower cage near power line No. 3, the line that was closest to, and only 2-3 feet from, the edge of the tower cage, moments before the explosion. (Ex. C-30 at 71-81; Ex. C-31 at 100-101; Exs. 14B, 14C.) One witness, Fonseca Alves, testified that JV had just finished painting a portion of the tower right before the explosion. (Ex. C-31 at 105-109. See p. 24 n.29 supra.) This testimony is supported by pictures in the record that show that the vertical portion of the tower cage nearest to power line No. 3 was green, which was the color that the painters were using that day. (Ex. C-15C; Tr. at 131 (painters previously primed the tower in red and were about to paint the tower in green on the date of the accident)). Additionally, as described above, the Secretary’s expert witness places JV, and a conductive object connected to him, well within 10 feet, or even 2 feet, 4 inches, of the No. 3 power line. It is therefore reasonable to infer that, while painting the edge of the tower, JV, through inadvertent movement of his hands covered in conductive paint, breached the 2 feet 4 inch approach distance when the No. 3 power line was only 2-3 feet away.

The Secretary has established non-compliance.

C.  The Secretary has established that Tower Maintenance’s employees had access to the violative condition

The Secretary argues that Tower Maintenance’s employee, JV, had access to the violative condition because “the location of his assigned work placed him in a position where inadvertent movements could cause his person, or conductive objects connected to his person, to approach within the relevant clearance distance[,]” whether it be 10 feet or 2 feet 4 inches. (Sec’y Br. at 31.) The Secretary claims that the fact that JV was electrocuted establishes access to the violative condition. Respondent does not address the Secretary’s claims that JV, or any other Tower Maintenance employee, had access to the violative condition. Respondent’s main assertion, if any, related to this prong of the Secretary’s burden of proof is that, by failing to provide a precise measurement of JV’s distance to the power line and also accounting for the possibility that an indeterminate amount of “paint spill” caused the electrocution, the Secretary failed to establish that JV had access to the violative condition. (Resp’t Reply Br. at 4.)

Respondent’s arguments are rejected. The fact that JV died by electrocution is strong evidence that he was exposed to the hazard of breaching the minimum approach distance, which takes into account inadvertent movement. (Tr. at 593-620; Ex. C-29.) Also, as discussed above, all of the power lines were located within 10 feet of the edge of the tower cage. As it is undisputed that the painters were expected to paint the tower cage, including the tower cage edges, then all of the painters were exposed to the hazard of breaching the minimum approach distance in this case.

The Secretary has established exposure to the violative condition.

D.  Tower Maintenance had knowledge that its employees were approaching within the restricted distance to the power lines

The Secretary argues that Respondent had actual and constructive knowledge that its employees were breaching the minimum approach distance of the cited standard. (Sec’y Br. at 31.) Respondent claims that it did not have knowledge of the alleged violations of this citation item because “there was no need or even colorable reason for Tower Maintenance’s employees to venture onto the arms of the transmission towers.” (Resp’t Br. at 11, 17.)

“The knowledge element of a violation does not require a showing that the employer was actually aware that it was in violation of an OSHA standard; rather it is established if the record shows that the employer knew or should have known of the conditions constituting a violation.” Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d, 26 F.3d 573 (5th Cir. 1994). To establish whether the employer should have known of the conditions constituting a violation, the Secretary must show whether the employer:

constructively knew of it--that is, the employer could have known with the exercise of reasonable diligence. … 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.