SECRETARY OF LABOR,
Complainant,

v.

GEORGIA POWER COMPANY,
Respondent,

and

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL No. 84
Intervenor.

OSHRC Docket No. 76-3353

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

The Secretary of Labor issued to Georgia Power Company two citations alleging noncompliance with several occupational safety and health standards.  Administrative Law Judge Paul L. Brady vacated several items of the two citations.  The Secretary petitioned for review of the judge's disposition of three of those items, and Commissioner Cleary directed review under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  We reverse Judge Brady's vacation of one of the items but affirm his vacation of the other two.

29 C.F.R. § 1926.556(a)(1).

Item 1A(b) of citation 1 alleged a violation of 29 C.F.R. § 1926.556(a)(1), which provides in part:

(a) General requirements.  (1) . . . [A]erial lifts acquired for use on or after the effective date of this section shall be designed and constructed in conformance with the applicable requirements of the American National Standards for "Vehicle Mounted Elevating and Rotating Work Platforms," ANSI A92.2-1969, including appendix.

The parties have focused on section 4.1 of ANSI A92.2-1969, which provides:

4.1 Basic Principles.  Sound engineering principles and reasonable assumptions consistent with all data available regarding use and environment shall be applied in the design of aerial devices, with due respect for the unit's being personnel-carrying equipment.

The engineering principle alleged by the Secretary to be unsound was the attachment of an uninsulated, metal jibholder to an aerial lift intended for use near energized lines.  The aerial lift in use was a Pitman "Hot-Stik" 50-MN-21, which had been acquired under a purchase order dated April 11, 1973.  The aerial lift and the truck on which it was mounted were manufactured by different companies and were purchased separately by Georgia Power.  The distributor of the aerial lift mounted it on the bed of the truck.

The Pitman Hot-Stik aerial lift is an articulated boom and bucket assembly.   The bucket in which the operator stands to work is mounted on one side of the boom, and the jibholder is mounted on the opposite side of the boom.  The jibholder is a rectangular metal sleeve about sixteen inches long, designed to hold a fiberglass arm called a jib, which is used for material handling. Georgia Power uses the jib to lift transformers into position for mounting on poles and to "hotstick" live lines, i.e., push them away from the lineman while he is working.  The jib is held in place by a pin and may be adjusted to different lengths.  The jibholder may also be rotated, allowing the jib to be adjusted to different angles.

The jib assembly is an optional accessory available at extra cost.   Georgia Power has almost 300 aerial lifts, seventy of which are the Pitman 50-MN-21.  Fifty-four of these have jibs.  The jibholders are attached to the booms by the distributor before the Hot-Stiks are delivered to the consumer.  When the jib is not being used, Georgia Power's policy is to remove it from the jibholder and store it in the truck.  Although it is possible to remove the jibholder, it is not designed so that it can be removed easily.  It takes at least half an hour to remove the jibholder, and a torque wrench with a special socket is required.  Consequently, jibholders are rarely removed.

The compliance officer who conducted the inspection holds a degree in electrical engineering.  She testified that the exposed metal at the end of the boom constituted a design defect and that all metal at the end of the boom of an aerial lift that will be used near energized wires should be insulated.  The Secretary presented an expert witness who testified that, if an aerial lift of this kind is used near energized wires, the employees must "insulate, isolate or eliminate" the electrical hazard.  The Secretary argues that the jibholder should have been removed for operations in which it would not be needed, that an aerial lift without so much exposed metal should have been used, or that more insulation should have been used.

Judge Brady vacated this item.  He held that the standard was valid because Congress authorized that standards adopted under the Construction Safety Act be promulgated as "established federal standards."  He found, however, that the Secretary had not proved that sound engineering principles were not used in the design of the Hot-Stik.

A - The Validity of the Standard.

Georgia Power asserts that 29 C.F.R. § 1926.556(a)(1) is invalid for three reasons.

(1) Georgia Power argues that section 1926.556 was not validly adopted under section 6(a) of the Occupational Safety and Health Act. [[1/]]  The original construction safety standards in 29 C.F.R. Part 1926 were adopted on April 27, 1971, under the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, commonly called the Construction Safety Act.  This adoption occurred after the Occupational Safety and Health Act was enacted but before it went into effect.  The standards were later adopted under section 6(a) of the Occupational Safety and Health Act as "established Federal standards."  Georgia Power maintains that section 1926.556 did not qualify as an "established Federal standard" as defined in section 3(10) [[2/]] because it was not "presently in effect."  Georgia Power argues that "presently in effect" refers to the date the Occupational Safety and Health Act was enacted rather than the date it became effective.  Therefore, argues Georgia Power, the Construction Safety Act standards were not "presently in effect."

It is unnecessary for us to resolve this argument because Georgia Power has erroneously assumed that section 1926.556 was adopted by the Secretary under section 6(a).   It was not.  Although most of the standards in Part 1926 were adopted in the manner outlined above, the standard cited here was adopted under section 6(b) of the Act, which prescribes the procedures to be followed for the adoption of permanent standards other than those set out in section 6(a).  Section 1926.556 was adopted on November 23, 1972, after publication of a notice of proposed rulemaking and a hearing.  37 Fed. Reg. 24880-85 (1972) (final standard); 37 Fed. Reg. 9440-41 (1972) (proposed standard).  The Secretary recited that he was acting pursuant to section 6(b).   37 Fed. Reg. at 24883.  Georgia Power's arguments that the standard was not properly adopted under section 6(a) are, therefore, beside the point.

(2) Georgia Power also argues that section 1926.556(a)(1) is invalid to the extent that it requires compliance with ANSI A92.2-1969 because the ANSI standard was not intended by ANSI to be "mandatory."  Georgia Power therefore maintains that ANSI A92.2-1969 was not an "occupational safety and health standard" within the meaning of section 3(8) of the Act because it did not "require" any conditions or practices. [[3/]]

Section 1926.556(a)(1) requires compliance with an otherwise voluntary, private standard. For that reason alone, it meets the definition of an "occupational safety and health standard." It is irrelevant that the ANSI standard was not intended by its drafters to be mandatory because the Secretary has the power to make a voluntary standard mandatory if he follows proper rulemaking procedures. See Deering-Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1102 (5th Cir. 1980); Senco Products, Inc., 82 OSAHRC 59/E9, 10 BNA OSHC 2091, 2094, 1982 CCH OSHD ¶ 26,304, p. 33,271 (No. 79-3291, 1982). The Secretary published a notice of his intention to require all aerial lifts to comply with the applicable provision of the ANSI standard, held a hearing, and made compliance with the ANSI standard mandatory under section 6(b). Whether the ANSI standard was mandatory when it was adopted by the American National Standards Institute therefore does not matter.

Georgia Power further argues that, because ANSI A92.2-1969 applied only to manufacturers and dealers of aerial devices, not to users, it may not be applied under section 1926.556(a)(1) to users.  That argument fails for the same reason as its argument that a voluntary standard may not be made mandatory.  Although the ANSI standard may have been intended by ANSI to apply only to manufacturer and dealers, the Secretary had the authority to alter and extend its application under section 6(b).   We therefore find that the Secretary validly required employers subject to the Act to acquire only aerial lifts that conformed to ANSI A92.2-1969.

(3) Georgia Power's final argument is a broad assertion that the Act was not intended to make the user of equipment responsible for its design by the manufacturer.   No authority is cited for this proposition.  On the contrary, it is fully consistent with the remedial purposes of the Act for the Secretary to promulgate standards requiring employers to purchase only equipment safely designed for its intended use, or manufactured with certain features.  Many standards adopted under the Act do exactly that.  A number of standards prescribe construction and design requirements for machinery.  E.g., 29 C.F.R. §§ 1910.213 (a)(1)-(8) (various construction requirements for woodworking machines), 1910.213 (e)(1)(design of guard), 1910.243(d)(1)(i) and (2)(i)(c)-(h)(design requirements for fastening tools), 1926.556(b) (4) (critical hydraulic and pneumatic parts of aerial lifts must meet ANSI requirements).  It is common, in fact, throughout the OSHA standards for the Secretary to require, for example, electrical equipment, protective equipment and machinery to be designed to incorporate insulating properties, weight-bearing properties, automatic shut-offs, or other safety features.  E.g., 29 C.F.R. §§ 1926.951(a) and (f)(2), 1926.302 (a)(1), 1926.401(a) and (f), 1910.29(a)(4)(ii), 1910.243(a)(2)(i), 1910.217(b)(2) and (b)(8)(vi).   We believe that these requirements are well within the powers granted the Secretary under the Act.  Accordingly, we reject Georgia Power's claim that the Secretary had no authority to require Georgia Power to purchase equipment that complied with the ANSI standard.

B - Was the Standard Violated?

Having found that the standard was validly promulgated, we must next determine whether the standard was violated.  There is no question that the aerial lift was "acquired for use" within the meaning of section 1926.556(a)(1).  The issue is whether the Pitman Hot-Stik was designed and constructed in conformance with the requirement of ANSI A92.2-1969 that "sound engineering principles and reasonable assumptions consistent with all data regarding use and environment shall be applied in the design of aerial devices,..."

1.  Facts.

Georgia Power was stringing a new power line consisting of three wires, each of which would carry 14,400-volts, along the shoulder of a road.  The new wires had been put up the day before but had not been "tied in" (permanently attached to the insulators on the poles).  A temporary cross-arm attached to each pole held a temporary line to carry power until the three new phases were operating.  The temporary line had been turned off the previous day so that protective rubber covering, called "line hose," could be placed on it.  After the line hose had been placed, the temporary line was reenergized.  The line hose extended about six feet along the temporary line on each side of the cross-arm.  There was also a protective hood over the insulator on the temporary cross-arm.

Georgia Power's crew included a foreman and six crew members, including two journeymen linemen, who were tying in the three new wires.  The linemen worked from two truck-mounted Pitman model 50-MN-21 Hot-Stik aerial lifts, parked back-to-back on the edge of the road.  They worked as a team, with one holding the phase in place against the insulator and the other tying it in. Two phases had been tied in on this pole, and the linemen were preparing to tie in the third, the one closest to the energized line, when the incident occurred.  As the lineman who was tying in the wires was repositioning his aerial lift, the metal jibholder touched part of the energized wire that was not covered by line hose.  An electrical arc resulted, and the lineman was seriously burned.

The compliance officer testified that, when the Hot-Stik is used near energized lines, all metal at the end of the boom should be insulated.  She gave her opinion that the Hot-Stik with the jibholder was not properly designed for use near energized power lines because it had a considerable amount of exposed metal.

One of the Secretary's expert witnesses, a safety engineer, testified that in his opinion the Hot-Stik with the jibholder was "unreasonably dangerous because of very apparent design deficiencies and the design deficiency is all of that exposed metal up there ....."  He stated that the Hot-Stik was not inherently defective but that, because the jib and jibholder were not necessary to the job being done, he was of the opinion that the unnecessarily exposed metal constituted a design defect for use near live lines.  He stated that some manufacturers of aerial devices made products with less exposed metal, although some of the aerial devices had as much metal or more.   He believed that the jibholder should either be insulated or be made of a nonconductive substance and suggested that the Hot-Stiks with exposed metal jibholders be used only where they would not encounter energized lines.

Another expert who testified on behalf of the Secretary had been a lineman, working his way up to become a safety analyst and safety supervisor for an electric utility company.  He had also been safety director for his union local before becoming a safety supervisor with OSHA.  He testified that "with that steel on the boom,. . . . they would have to either insulate the boom and conductors or isolate by taking a hotstick and pushing the hot phase out of the way or eliminate it by de-energizing and removing it."  In his opinion, "this particular truck with all the steel they have on there, has no business being in any area of energized conductors until one of those three [things] is done."

In addition, the Secretary presented testimony by some Georgia Power linemen that the exposed metal jibholder made it more dangerous to work around energized lines.   The foreman of the crew that was involved in the accident testified that it it possible to put a protective insulating blanket over the metal jibholder, and he has seen it done.  He stated, however, that in his experience it is very rarely done.

Georgia Power presented Pitman's director of engineering, who testified that although Pitman had conducted extensive research to find a nonconductive material from which to make the jibholder, none strong enough had been found.  The other manufacturers offering jibholders also make them of metal.  He stated that the Hot-Stik is insulated as effectively as Pitman can, and that the company is constantly conducting research to improve the safety of its product.  A barrier kit made of an insulating material has been developed for another model Pitman Hot-Stik to deflect hot wires away from the bucket, but it is not yet available for 50-MN-21.  The barrier does not cover the jibholder, however, and Pitman recommends that the two accessories not be used at the same time.  The witness also testified that he would recommend against affixing a coating of insulating material to the jibholder.  In his opinion, this could be more dangerous than having bare metal, because the coating might chip or be scratched during use.  He stated, "A slight pinhole on any protective coating on these machines would allow electricity to go through."  For that reason, "if a man is relying at all on that coating for any protection from electrical current, he could be very badly misled and possibly badly injured because of that."

Both the Pitman engineer and the distributor's sales representative testified that the jibholder is not designed to be removed and that it is difficult to remove.   As noted above, it takes a torque wrench with a special head to put on or take off the jibholder, and it requires at least half an hour to do either.  These witnesses also testified that even if the jibholder were removed, there would still be some exposed metal on the end of the boom, that all aerial lifts made by other manufacturers have some exposed metal, and that it is impossible to provide complete insulation on an aerial device.  A Georgia Power senior safety engineer testified that one reason the jibholders are not removed--besides the fact that it is a difficult and time-consuming job--is that the jib may be needed unexpectedly.  He stated that it is not possible to predict at the beginning of the day whether the jib will be needed. The head of Georgia Power's automotive equipment department said that Georgia Power is concerned about exposed metal near live lines, but that the company is limited to purchasing whatever equipment is available on the market.

Georgia Power has an extensive training program that stresses safety.   Linemen are warned about the hazards of the job and trained to avoid and protect against them.  Most of Georgia Power's witnesses acknowledged that working near energized lines is dangerous and that the additional exposed metal does increase the danger.  They expressed the opinion, however, that the Hot-Stiks are safe for use around energized wires if adequate insulation is used.  The presence of a jibholder simply means that more insulation and greater care must be used.

2.  Judge's decision and arguments of the parties.

Judge Brady found that the Hot-Stik was designed for use near energized lines and could safely be used for that purpose, that the Pitman Hot-Stik was comparable to those of other manufacturers, and that whether it was safe depended on the operator's technique and his use of protective equipment.  He found insufficient evidence "that sound engineering principles and other requirements of the standard were not applied in the design of the aerial device in question."  The judge concluded that a "holding to the contrary would place the Commission in the untenable position of establishing design requirements of equipment thus exceeding the scope of its adjudicatory function."

The Secretary argues that Georgia Power violated section 1926.556(a)(1) by purchasing aerial lifts with jibholders for use in situations where the jib was not necessary and the presence of the jibholder increased the danger of electrocution.   He maintains that having unshielded jibholders in situations where the jib is not being used constitutes improper design.  He also asserts that it is improper for Georgia Power to rely primarily on its employees' caution to prevent accidents.

Georgia Power argues that ANSI A92.2-1969 permits material-handling attachments and that references in that standard prove that the ANSI committee accepted the fact that there will be some exposed metal at the end of the boom.  The company asserts that the ANSI standard recognizes that aerial devices will be used near energized lines and that it acknowledges that such use involves inherent dangers that can be avoided only by the exercise of caution.  The cited equipment was designed precisely for the work it was doing, the company argues, and it was no more dangerous than the other models available in the marketplace.  According to Georgia Power, if the lineman in question had followed the company's safety rules and had done the job the way he was trained to do it, the Pitman Hot-Stik would have been perfectly safe.

3.  Analysis.

We disagree with the judge's finding that there is insufficient evidence to establish noncompliance and with his conclusion that to find a violation would require the Commission to establish design requirements for equipment.  As stated above, it is fully within the power of the Secretary under the Act to require employers to provide their employees with safe equipment.  Likewise, it is fully within the power of the Commission to determine on the facts of each case whether a given piece of equipment complies with the Secretary's standards.  That is an integral part of our adjudicatory function.

We find that the design of the jibholder did not comport with sound engineering principles based on reasonable assumptions about the use of an aerial lift as a personnel-carrying device around electric lines.  The additional exposed metal of the jibholders increased the dangers to employees working near energized lines, as the testimony of the Secretary's expert engineering witness makes clear. Despite the fact that jibs are not always used when aerial lifts are used near energized lines, the jibholder was not designed to be quickly and easily removable.  Although we are not convinced that the jibholder could have been designed to be made of a non-conductive substance, we find that the metal jibholder could have been designed to be covered with nonconductive, insulating material.  We find unconvincing the testimony of Pitman's director of engineering that an insulated jibholder would be more dangerous because it would lead to false reliance on potentially unreliable insulation.

The preponderance of the evidence also establishes that Georgia Power could have required the jib to be attached to the jibholder at all times or that the jibholder be removed whenever the jib was removed.  The evidence also establishes that Georgia Power could have instructed employees either to put an effective insulating blanket over the jibholder or use additional "cover- up" on energized circuits and parts.   In addition, the record reveals that Georgia Power could have forbidden the use of jibholders without jibs, or forbidden their use for work around energized wires.   However, Georgia Power took no steps to eliminate the hazards created by the design deficiency of the Hot-Stiks for use around energized circuits.

Accordingly, we reverse the judge's decision on this item and find a violation of section 1926.556(a)(1). The Secretary alleged that this was a serious violation within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j). Because high voltage electrical lines are involved, we find that death or serious physical harm is a likely result of any incident caused by this violative condition. We therefore find that the violation was serious. Item 1A(b) of citation 1 is therefore affirmed.

29 C.F.R. § 1926.950(c)(1).

Item 1A of citation 2 alleges a violation of 29 C.F.R. § 1926.950(c)(1), which requires that unprotected employees be further than certain distances of energized lines. [[4/]] The alleged violation occurred when the jibholder touched the uninsulated portion of the energized line.

1.  Facts.

The lineman who was injured testified that he had considered putting an additional protective fiberglass blanket on the energized temporary wire, which was approximately 24 inches from the new phase he was working on when the accident occurred.  This was the last one to be tied in and was the closest to the energized line.  He did not add a fiberglass blanket, however, because his work was to be performed within the covered area and he thought the line hose already in place provided adequate protection.  As he was repositioning his bucket to get into a better position, the end of the boom traveled beyond the end of the line hose and the jibholder came into contact with the unprotected part of the line.  An electric arc resulted, described by one witness as a "ball of fire," and the lineman was burned.

The compliance officer testified that, because Georgia Power had experienced accidents, she considered its safety program ineffective.  She described it as a "paper" program.  One consideration, she said, was the company's failure to require employees to follow the company's own vehicle inspection guide, an omission that was cited as a separate item, is on review, and is discussed below.

Georgia Power presented evidence about both its training program and its safety program.  The record shows that every new employee is sent to a three-week "basic" school.  Before he becomes a lineman, he attends a five-week apprentice school.  The basic theme of these schools is doing the job safely.   Employees constantly receive on-the-job training, and Georgia Power's training stresses safety first.  Every employee must attend one formal safety meeting per month and one informal safety meeting per week. Georgia Power has a booklet of written safety rules, which is given to every employee.  A copy was introduced into evidence.   One of the rules prohibits lineman from approaching live lines unless adequately protected.  Several employees testified that the rules are enforced.  When Georgia Power investigated the incident, it determined that the lineman had violated three company safety rules, including its rule against moving outside the protected area.   The employee was disciplined for these violations.

2.  Judge's decision and arguments of the parties.

Judge Brady vacated this item because he found that the incident was the result of unanticipated failure by an employee to comply with his training and with the company's safety rules.  He also found that the company had neither knowledge nor constructive knowledge of the violation.

The Secretary argues that the employee was doing the job without sufficient insulation and that the company knew this.  Georgia Power argues that both the amount of line hose being used and its training and safety programs were adequate.  It points to the testimony of several witnesses, some of whom were qualified as experts, who testified that the job could have been performed safely with the amount of line hose being used.   The company's position is that the incident occurred because the lineman unexpectedly and unexplainably went outside the "zone of protection" afforded by the six feet of line hose covering the energized line on each side of the pole.

3.  Analysis.

We affirm the judge's disposition. Chairman Rowland and Commissioner Cleary vacate the item because Georgia Power did not have either actual or constructive knowledge of the violative condition.  Commissioner Cottine dissents on the ground that Georgia Power has not established the unpreventable employee misconduct defense.

In order to prove a violation, the Secretary must prove that the employer knew, or with the exercise of reasonable diligence, could have known of the violative condition.  Prestressed Systems Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ¶ 25,358 (No. 16147, 1981).  The Secretary has argued that the record shows that both the foreman of the crew and the superintendent of the nearby area substation were aware that the work was being performed with six feet of line hose on each side of the employee's work station at the pole.  The standard cited here does not dictate what length of line hose is to be used; it requires that an unprotected employee not go closer to unprotected lines than certain prescribed distances.  Although an unprotected Georgia Power employee did come closer to the lines than permitted by the standard, the issue here is whether Georgia Power knew or, with the exercise of reasonable diligence, could have known that he would so.  Chairman Rowland and Commissioner Cleary agree with Judge's Brady's finding that Georgia Power could not reasonably have known that this would happen.  The employee was a well-trained, experienced, journeyman lineman, who was aware of Georgia Power's safety rules and knew that these rules were enforced.[[5/]] There was no reason for him to come as close as he did to the unprotected line, and he did so inadvertently. The assigned task was to be done well within the zone of protection, and there is no evidence that the end of the line hose was closer to the employee's required work position than the distance set by the standard.  The amount of line hose being used was the normal amount used in such circumstances and other wires on this project had safely been tied in with that amount of line hose.[[6/]]

Accordingly, Judge Brady's vacation of item 1A of citation 2 is affirmed.

29 C.F.R. § 1926.952(a)(1)

The final item on review, item 1D of citation 2, alleged a violation of 29 C.F.R. § 1926.952(a)(1).[[7/]]

1.  Facts.

The Secretary introduced into evidence a copy of a Georgia Power daily vehicle inspection guide.  The inspection guide listed eleven checks to be made including bleeding water from moisture separators and air tanks, checking the water level in the radiator, and checking the oil level in the engine, hydraulic system, air compressor, generator, and tool lubricators.  The compliance officer testified that, in her opinion, the violation was the company's failure to enforce its own inspection guide.  No other evidence was presented as to what kind of visual inspections should have been made.   The Georgia Power employees who testified about this item agreed that the company did not enforce its requirement that all the checks on the list be made every day.   They testified, however, that even though they did not follow the inspection guide every day they did look over the vehicles before using them.  The Secretary presented no other evidence as to how the employees' observations fell short of those required by the standard.

2.  Judge's decision and arguments of the parties.

Judge Brady vacated this item because the employees look at the trucks "in a manner which would seem consistent with the general requirements of the standard."  He noted that the standard is very general and does not specify what visual inspections are required. The judge found that the Secretary had neither proved that the trucks were not inspected nor proved that there were defects that should have been found.

The Secretary argues that the term "inspection" in the standard connotes a critical examination, citing the definition of "inspect" in Webster's New Collegiate Dictionary:  "to view closely and critically; scrutinize."   The company, on the other hand, argues that the standard is unenforceably vague, that its employees made adequate observations of the vehicles, and that the company's inspection list is more rigorous than section 1926.952(a), so that the company's failure to enforce its own inspection guide cannot be considered a violation.

3.  Analysis.

We affirm Judge Brady's disposition.  The Secretary relies on Georgia Power's failure to enforce its daily vehicle inspection guide. However, the Secretary has failed to establish which items on that guide prescribe "visual inspection" tasks within the meaning of the standard and whether any of those specific tasks were not adequately done.  A number of employees testified that a daily inspection was performed, although at least one employee testified that visual inspections were not routinely performed.  In the absence of evidence to establish what visual safety inspections of the truck were required to be made, we cannot find a violation.

Penalty.

The Secretary proposed an aggregate penalty of $800 for items 1A, 1B and 1C of citation 1.  The violation of section 1926.556(a)(1) is one of five different violations alleged in item 1A of that citation.  We have considered evidence of record concerning the size of the company, the gravity of the violation, the company's good faith, and its history of previous violations. Georgia Power is a large public utility.  The violation was of high gravity, but the company was acting in good faith and the record shows no history of previous violations.  We therefore consider a penalty of $400 to be appropriate.

Accordingly, we reverse the judge's decision as to item.  1A(b) of citation 1, we affirm the item and assess a penalty of $400.  The judge's disposition of items 1A and ID of citation 2 is affirmed.  Those items are vacated.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 27 1983

The Administrative Law Judge decision in this matter is unavailable in this format.   To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] Section 6(a) of the Act, 29 U.S.C. § 655(a), provides in part:

Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees.

[[2/]] Section 3(10) of the Act, 29 U.S.C. § 652(10), states:

The term "established Federal standard" means any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act.

[[3/]] Section 3(8), 29 U.S.C. § 652(8), provides:

The term "occupational safety and health standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

[[4/]] That standard provides in part:

§ 1926.950 General requirements.
* * *
(c) Clearances. The provisions of sub-paragraph (1) or (2) of this paragraph shall be observed.
(1) No employee shall be permitted to approach or take any conductive object without an approved insulating handle closer to exposed energized parts than shown in Table V-1, unless:

(i) The employee is insulated or guarded from the energized part (gloves or gloves with sleeves rated for the voltage involved shall be considered insulation of the employee from the energized part), or
(ii) The energized part is insulated or guarded from him and any other conductive object at a different potential, or
(iii) The employee is isolated, insulated, or guarded from any other conductive object(s), as during live-line bare-hand work.

TABLE V-1
ALTERNATING CURRENT-MINIMUM DISTANCES

[remainder of table omitted]

[[5/]] Chairman Rowland notes that it is not necessary for an employer's safety rule to recite verbatim the requirements of the standard if it provides protection equivalent to the standard.  See Union Electric Co., 83 OSAHRC     , 11 BNA OSHC 1280, 1283, 1983 CCH OSHD ¶_____p.______ (No. 77-3049, 1983)(Rowland, Chairman, dissenting).  Georgia Power had a rule prohibiting an employee from coming within reach or extended reach (hand reach extended by a conductive item supported by the hand) of energized lines up to 15,000 volts unless he was wearing rubber gloves and glove protectors.  The rule further required workmen who will be within reach of energized circuits to cover with protective equipment any conductor he might accidentally touch.   In Chairman Rowland's view, Georgia Power's rule therefore provided protection equivalent to that of the standard.

[[6/]] Commissioner Cottine would find that Georgia Power's workrules are insufficient under the Commission's decision in Union Electric Co., supra note 5, and conclude that Georgia Power failed to establish that the contact between the jibholder and the wire was due to unpreventable employee misconduct. In order to establish this defense an employer must show that the employee's action was contrary to a company workrule that effectively implemented the requirements of the standard at issue, Union Electric, supra, and that the workrule was adequately communicated and effectively enforced. Floyd S. Pike Elec. Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ¶ 22,805 (No. 3069, 1978). Georgia Power's workrule on rubber gloves provided that, "Rubber gloves with glove protectors shall be worn on BOTH HANDS AT ALL TIMES when working within reach or extended reach (hand reach extended by a conductive item supported by hand) of primary and secondary lines, . . . regardless of the type of work being performed, even though protective equipment is in place." Respondent's Exhibit 24, Section 9, p. 9.

Although this rule is more detailed than the company rule involved in Union Electric, supra, it does not address the specific distances to be maintained at all times as does the cited standard. In Commissioner Cottine's view, the rule provides less notice than the cited standard of the need to protect against inadvertent contact with energized wires through human error or mechanical failure.

The same section of Georgia Power's workrules also provides rules for covering energized circuits, but those rules also do not provide notice equivalent to the standard regarding the circumstances in which rubber gloves are required. In Commissioner Cottine's view, Georgia Power has not established that its workrules effectively implement all the requirements of the cited standard, and he would affirm this item. Commissioner Cottine also notes that the majority's conclusion that Georgia Power had no reason to know of the possibility of contact between the jibholder and energized wires is inconsistent with the previous conclusion that Georgia Power knew or should have known that the jibholder was hazardous in design for use near the wires.

Further, he notes that prior to the incident, certain Georgia Power employees had told their supervisors that there was too much uninsulated steel on the Hot-Stik's boom to be working close to energized conductors. Georgia Power's safety manager had received the same general complaints. The safety manager testified he could not recollect mentioning those complaints to anyone else at Georgia Power. The knowledge of the company's supervisors is properly imputed to the company, as the company has not established that its supervisors' failure to take any action regarding the complaints was due to unpreventable employee misconduct. Pennsylvania Power & Light Co., OSHRC Docket No. 79-5194 (April 8, 1983); H.E. Weise, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ¶ 25,985 (Nos. 78-204 & 78-205, 1982), appeal filed, No. 82-4202 (5th Cir. May 28, 1982).

[[7/]] That standard provides:

§ 1926.952 Mechanical equipment.
(a) General. (1) Visual inspections shall be made of the equipment to determine that it is in good condition each day the equipment is to be used.