SECRETARY OF LABOR,
Complainant,

v.

NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY,
Respondent.

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 2222,

Authorized Employee
Representative.

0SHRC Docket No. 80-6519


DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:
The Secretary of Labor issued a citation to New England Telephone and Telegraph Company ("N.E.T.&T.") alleging violations of two telecommunications standards, 29 C.F.R. § 1910.268(n)(11)(iii)(A)--involving pole guards--and 29 C.F.R. § 1910.268(n)(11)(iv)--involving insulating gloves. [[1/]] A penalty of $550 was pro posed for each of the two alleged violations, which were characterized as serious. After a hearing, Administrative Law Judge Foster Furcolo affirmed the pole guard item and vacated the glove item. Both parties petitioned for review. Commissioner Cottine granted both petitions. We reverse the judge's decision; we vacate the pole guard item and affirm the glove item.

I. Facts

This case involves the replacement of a damaged utility pole that was jointly used by N.E.T.&T. and the local electric power company. A N.E.T.&T. foreman, Lemmo, met with two experienced linemen, Hanson and Scott, at the N.E.T.&T. garage and assigned them the task of erecting a new pole. He instructed them to erect the new pole about 3'-4' from the damaged pole. Lemmo described the types and voltages of the wires that they would encounter at the site and told then that he had contacted the electric company to get its assistance. Lemmo also told them that it had been raining overnight and that they should not set the new pole if it were still raining. Lemmo did not discuss with Hanson and Scott the use of a pole guard, which is an orange, cylindrical cover, approximately 6 feet long, that slides over a pole to insulate it from electrical wires. However, Lemmo testified that as Scott left, he told Lemmo that he (Scott) "had better get a pole guard." At the hearing, Scott testified that although there were pole guards available at the garage that morning, he did not take one with him because Lemmo had told them that the electric company would be present and would insulate the wires.

At 10 a.m., Lemmo visited the site and found Scott and Hanson waiting for the electric company's crew to finish "rubbering up" the electric company's lines. "Rubbering up" means to cover a power conductor with rubber insulating material known as "line hose." Scott testified that he was satisfied that the power conductors in the area where the new pole was to be erected had been completely covered with rubber. However, Scott was aware that the electric company crew had not placed a large rubber cover called a "pig" over each round insulator on the old pole. A pig has two purposes: to insulate the electric power conductor that is wrapped around the insulator and to hold adjacent line hose in place. When the electric company crew had completed rubbering up the power conductors, Lemmo left the site and accompanied an electric company supervisor to inspect another worksite. When Lemmo departed, Scott and Hanson were not yet ready to erect the new pole or to put a pole guard on it.

Once the conductors were rubbered up, Scott and Hanson resumed working. Because they encountered rock, they dug the hole for the new pole about 2-1/2 feet closer to the old pole than they had been instructed by Lemmo. Thus, Scott and Hanson set the new pole about 1-1/2 feet from the damaged pole. Hanson then ascended in a bucket lift to secure the two poles together with wire, a process known as "lashing." Scott later testified that the purpose of lashing is to hold the old pole steady "because you're going to cut about a foot above ground level on the old pole and take the bottom of that pole out of the ground." He also stated that the two poles usually are brought together no closer than one foot during the lashing procedure.

Although the normal procedure is to slip a pole guard over the top of the new pole before it is raised into position, Scott testified that the old and new poles were not protected by a pole guard, insulating blanket [[2/]] or box guard, [[3/]] either when Scott and Hanson set the new pole or when Hanson ascended in the bucket to lash the poles together. During the lashing, Hanson was wearing a hardhat, safety glasses and leather work gloves, but not rubber insulating gloves. While in the bucket, Hanson sustained an electrical shock and was seriously injured.

N.E.T.&T.'s internal report of its post-accident investigation states: [[4/]]

It was concluded by the committee that Mr. Hanson, working on lashing wire between the new and the old pole, created an electrical circuit through his body. As he proceeded with the tensioning operation the old and the new pole were probably brought together. The exposed bracket on the old pole, which contained one single phase circuit of 7620 volts to ground, was brought into contact with the new pole by his tensioning. His body then conducted electrical current to an electrical ground. Mr. Hanson's side was probably leaning against a CATV strand and he was not wearing rubber gloves. Contact was made at his left side, at approximately the height of the CATV strand and also in his right hand which probably was gripping the lineman's wrench on the lashing wire.

Testimony at the hearing also focused on the nature, effectiveness and enforcement of N.E.T.&T.'s safety program with respect to the use of pole guards and rubber insulating gloves. N.E.T.&T.'s written safety procedures for placing, or removing poles near electric power wires explicitly require the use of both pole insulation and insulating gloves. [[5/]] Scott and Hanson attended a safety meeting and slide presentation concerning pole replacement more than two years before the accident. The accompanying narrative for the presentation states that:

[I]t will be the policy of the Central Division to require that all construction line crews . . . use B pole guards and rubber gloves when placing or removing poles on or near joint owned poles, or on or near non joint owned poles where there is any possibility of contact with a foreign voltage . . . All poles placed or removed near power wires must be insulated . . . All employees handling the pole either with their hands, pike poles or other tools shall wear the appropriate insulating gloves with protectors.

Scott and Hanson also attended a safety meeting, film presentation and demonstration on electrical shock, hazards for linemen and use of rubber insulating gloves two months before the alleged violations occurred. In response to N.E.T.&T.'s request for admissions, the Secretary has admitted that N.E.T.&T. adequately trained employees on using pole guards on new poles when placing, new poles for joint use. The Secretary also responded as follows to two other requests for admissions:

Request: The rubber insulating line hose covering the 13.8kV primary conductors on pole No. 1095 was equivalent to a pole guard on the new pole in preventing contact between that pole and the 13.8kV conductors.

Answer: Yes; not equivalent respecting protection of workers in all circumstances.

Request: The rubber insulating line hose covering the 13.8kV primary conductors on pole No. 1095 on June 30, 1980 was one of the alternative types of protective equipment which meets the requirements of 29 C.F.R. 1926.950(c)(1)(ii).

Answer: Admitted due to wording.

W.C. Cronin, N.E.T.&T.'s construction manager responsible for supervising foremen such as Lemmo, testified that the company requirement to use pole covers when working on or near joint poles did not contain an exception for instances in which the electric company had rubbered up power lines. He also described N.E.T.&T.'s accident prevention plan, under which foremen make three observations of each employee per month. Cronin himself makes five field observations per month, noting positive and negative safety observations on craft employees, including linemen replacing and setting poles. Moreover, in his role as area manager, Cronin has had occasion to take disciplinary actions--including suspension--against employees who commit safety violations. Cronin conceded that linemen do not follow all of N.E.T.&T.'s practices letter-for-letter, but he insisted that he insures that safety-related items are followed generally. Cronin stated that he had never observed an employee working without his gloves where there was a possibility of shock and had never observed an employee placing a wet pole without using a pole guard.

Lemmo, the N.E.T.&T. foreman, testified that a team like Scott and Hanson would replace on average about 2 poles per day, about 600 per year. Lemmo estimated that he would observe them at least three times per month, although not for the entire duration of a pole-replacing assignment. Referring to a company document known as a safety knowledge review and observation card, he noted that Hanson had been observed in 1979 regarding electrical hazards--including use of rubber insulating gloves and pole guards--on three occasions and had not been cited for any deviations from N.E.T.&T.'s safe practice standards. Hanson also successfully completed an oral, on-the-job review regarding electrical hazards. Similar safety knowledge review and observation cards were admitted into evidence covering Hanson in 1980 and Scott in 1979 and 1980. No deviations from prescribed safe practices were noted regarding electrical hazards.
Lemmo also testified that he had observed these employees setting poles before this accident; that he had never observed them not wearing their gloves when there was a possibility of contact with electrical wire; that he had never observed them. not using a pole guard on a wet pole carrying 13.8kV, except where a pole had broken and all the wires were down and out of the way; that he had directed Scott and Hanson on prior occasions to use pole guards; and that he had never instructed them, that it was unnecessary to use pole guards in cases where the electric company had rubbered up its lines.

Scott testified that he had been a construction head lineman for thirteen years. He stated that he had set new poles with Hanson 20 times, that it was not his practice to use pole guards, guarding blankets or box guards when tile electric company had rubbered up its power lines, that he had set 50-100 poles --- about 15 to 20 during the six months he worked with Hanson--- without insulating them when the electric company had rubbered up its lines, and that it was not his practice to use pole guards except at night. Scott also testified that he had believed before the incident that it was proper not to use a pole guard if the electric company had rubbered up its lines.

As to gloves, Scott stated that he and Hanson wore insulating gloves when they placed the new pole in position; that Lemmo did not remind him to do that; that he would have been insulted if Lemmo had done so; that he used insulating gloves "any time there is, in my mind, any chance or possibility that there could be shock, or voltage or anything like that"; that it was not his practice to use rubber gloves during the lashing operation; that, in determining whether there was a possibility of shock during the lashing operation, he would watch to see if the pole would be pulled into any wires and that, if the pole came within one foot of the wires, he would either stop lashing or put on insulated rubber gloves before resuming lashing. He also indicated that once the pole was fixed in place, he would not need insulating gloves and that he believed that it was proper not to use insulating gloves during a pole replacement operation once the pole had been secured because he had in the past performed that operation without gloves. He also stated that a foreman usually is not present during the pole replacement job, although foremen do come around and watch from time to time, and that he had only been disciplined or reprimanded once in the past for a safety violation--not wearing a safety belt in the bucket.

II. The Pole Guard Item


A. The Judge's Decision

Judge Furcolo affirmed the pole guard item. He found that both the old and new poles were wet and that the failure of the electric company to use a pig prevented the rubbering up from being "equivalent protective equipment" within the meaning of section 1910.268(n)(11)(iii)(A). He also found that foreman Lemmo knew or should have known that both poles were wet, that he knew "how close together (3-4 feet) he expected the two poles would be" and that he know "that the new pole would have to be 'nosed up' through the wires." Judge Furcolo further found that "careful observation" by Lemmo of the open back of the truck would "easily" have shown him that no pole guard had been brought to the worksite. It could also easily be seen that no pigs had been installed. The judge rejected N.E.T.&T.'s argument that section 1910.268(n)(11)(iii)(A) is vague. He held that "equivalent" has a meaning "easily and readily understood by the average layman" and that "in the context in which it is used in the standard, there is little or no chance that it will be misunderstood or misinterpreted."

Commissioners Cleary and Cottine agree for the reasons stated in Part II.B that N.E.T.&T. violated the standard. For the reasons stated in Part II.C., however, Commissioner Cottine agrees with Chairman Rowland that the item should be vacated on another ground.

B. Was the pole guard standard violated?

Under the working conditions involved here, the standard states that wet poles "shall be insulated with either a rubber insulating blanket, a fiberglass box guide, or equivalent protective equipment." There is no dispute that the pole was wet, [[6/]] or that it lacked an insulating blanket and a fiberglass guard. Inasmuch as there was no insulation on the pole but there was some insulation on the power conductors, the first issue before us is whether such insulation can be considered "equivalent protective equipment" within the meaning of the standard.

The Secretary contends that the pole guard standard unequivocally requires the wet pole to be insulated with "equivalent protective equipment." In his view, using insulation on the line is contrary to the standard and is not equivalent to pole insulation; line hose differs in location, placement, function, and effect. The Secretary argues that the standard is not vague because the standard says that insulation must be on the wet pole, and "equivalent" is a well understood term. The Secretary maintains, in this regard, that N.E.T.&T. correctly understood the standard, for N.E.T.&T.'s own rules require that the poles be insulated regardless of the presence of line hose.

N.E.T.&T.'s argument that line hose is "equivalent protective equipment" relies heavily on the Secretary's responses to requests for admissions and the provisions of section 1926.950(c), the construction standard for power transmission and distribution work. N.E.T.&T. maintains that inasmuch as the Secretary admitted that the rubber insulating line hose was equivalent to a pole guard in preventing contact between the pole and the conductors and that rubber insulating line hose alone is sufficient to protect electric company workers under section 1926.950(c)(1)(ii), [[7/]] the line hose was "equivalent protective equipment."

N.E.T.&T. also argues that if rubber line hose is not "equivalent protective equipment," then the meaning of the term is so unclear that it is unenforceably vague. It maintains that inasmuch as line hose is as effective an insulator as equipment placed on the pole, an interpretation of the standard that did not treat them as equivalent would be so unpredictable as to deprive it of notice of what the standard requires.

Commissioners Cleary and Cottine interpret the term "equivalent protective equipment" as equipment that is placed on the wet pole. [[8/]] First, the sense of the standard is that insulation must be placed on the wet pole, not elsewhere. Second, the record shows and N.E.T.&T. acknowledges that the two methods of protection specified in the standard-- rubber insulating blankets and fiberglass box guards--are fitted on the wet pole. This strongly suggests that the term "equivalent protective equipment" also refers to equipment placed on the wet pole. Third, section 1910.268(n)(11)(iii)(C), a closely-related provision which provides an exception to section 1910.268(n)(11)(iii)(A), refers to "insulation of the pole ....."

The parties have argued the relative merits of placing insulation on the wet pole or on the lines, and the Secretary's admissions seem to indicate that line insulation is equivalent under certain circumstances. However, the reasonable reading of the standard and the reading most consistent with its remedial purpose is that insulation must he placed on the pole under these working conditions. OSHA regulations are to be liberally construed to effectuate the remedial purposes of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678. Whirlpool Corp. v. Marshall,445 U.S. 1 (1980); Bristol Steel & Iron-Works v. OSHRC 601 F.2d 717 (4th Cir. 1979); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974). N.E.T.&T. also argues that because section 1926.950(c)(1) permits electric company employees to be protected by line hose alone, the telecommunications standard before us should be interpreted to yield the same result. The telecommunications standard cited in this case is specifically applicable to wet poles and contains requirements concerning wet poles that are more stringent than the requirements in section 1926.950(c)(1). It is not the Commission's role to reweigh the practical concerns underlying the Secretary's regulatory choice in prescribing the additional requirements for telecommunications.[[9/]] Moreover, we note that the Respondent's own safety rules recognize a need to place insulation on the poles themselves, whether wet or dry.

Commissioners Cleary and Cottine also reject N.E.T.&T.'s argument that the standard is unenforceably vague as construed. The Commission has construed the standard consistent with its plain meaning and its remedial purpose. Indeed, N.E.T.&T.'s own work rules show that it had no difficulty understanding the Secretary's standard. N.E.T.&T.'s stated policy requires that all construction line crews use B pole guards when placing or removing poles on or near joint owned poles. The N.E.T.&T. rule makes no exception for instances in which the conductors are rubbered up. Under these circumstances, N.E.T.&T.'s vagueness argument lacks merit.[[10/]]

C. Conduct of Employees

Nevertheless, Chairman Rowland and Commissioner Cottine conclude that the citation item should be vacated.

The Secretary argues that N.E.T.&T. had knowledge of the violation because supervisor Lemmo knew the conditions at the scene, including the fact that the pole was wet. He argues that if reasonable diligence had been exercised, Lemmo would have known that Scott and Hanson did not plan to use a pole guard and would have discovered the absence of a pole guard at the worksite simply by looking in the back of the truck or by asking the employees. The Secretary also maintains that the affirmative defense of employee misconduct was not established because the two experienced linemen often did not use pole guards or other equivalent protective equipment when the electric company's lines were rubbered up; a properly trained employee would have known to insulate the wet pole under the circumstances of this case. Moreover, the record does not contain any examples of disciplinary action being taken to enforce the work rule prescribing pole guards despite Scott's assertion that he himself had replaced poles more than 50 times without using pole guards.

Chairman Rowland notes that the Secretary has the burden of proving that N.E.T.&T. 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). Chairman Rowland concludes that N.E.T.&T. lacked actual knowledge of the violation because the supervisor, Lemmo, was not present during any phase of the actual pole-setting procedure, and neither Scott nor Hanson was a supervisory employee whose actual knowledge can be imputed to N.E.T.&T. See H.E. Weise, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ¶ 25,985 (Nos. 78-204 & 78-205, 1982). Chairman Rowland would also hold that N.E.T.&T. lacked constructive knowledge because it exercised reasonable diligence. Lemmo personally visited the worksite and took, notes regarding the conditions his repair crew would encounter. He personally communicated instructions to the repair crew, including specific directions about digging the hole for the new pole at a distance of 3'-4' from the old pole. He arranged for the electric company to rubber up its lines and also understood that a pole guard would be used because Scott indicated to Lemmo that he would get a pole guard. Lemmo had never observed Scott or Hanson fail to use a pole guard when replacing a pole under similar circumstances, and Scott and Hanson had 15 years and 25 years of experience respectively at N.E.T.&T. N.E.T.&T.'s work rules clearly required that pole covers be used and made no exception for instances in which the lines were rubbered up. Indeed, the Secretary conceded that N.E.T.&T. adequately trained employees on using pole guards. N.E.T.&T. also had a commendable safety program in which employees are observed performing work, and are disciplined for infractions of safety rules. [[11/]] The duty to exercise reasonable diligence does not require that a supervisor be assigned to remain and watch a crew's every move. See Capital Electric Line Builders, Inc. v. Marshall, 678 F.2d 128, 131 (10th Cir. 1982); Cape & Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148, 1155 (1st Cir. 1975); B-G Maintenance Management, 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD ¶ 20,744 (No. 4713, 1976). This duty also does not require that the employer prevent every instance of employee noncompliance with a workrule. Jones & Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ¶ 26,128 (No. 76-2636). Accordingly, Chairman Rowland would vacate this item on the ground that the Secretary failed to establish that N.E.T.&T. knew or, through the exercise of reasonable diligence, could have known of the violation.

Commissioner Cottine joins Chairman Rowland in vacating the pole guard item, but for different reasons. He concludes that N.E.T.&T. has established its unpreventable employee misconduct defense. In order to establish this defense, an employer must show that: (1) work rules designed to prevent the violation have been established; (2) these rules have been adequately communicated to its employees; and (3) adequate steps have been taken to discover violations, and these rules have been effectively enforced when violations have been discovered. E.g., Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD ¶23,664, p. 28,695 (No. 76-1538, 1979). Employees must be properly trained and supervised and must be made aware that the work rules will be enforced. See Danco Construction Co. v. OSHRC, 586 F.2d 1243, 1247 (8th Cir. 1978). N.E.T.&T. has established a work rule designed to prevent the violation. This rule requires the use of pole guards when replacing poles. The Secretary has agreed that N.E.T.&T. adequately communicated the rule to its employees. N.E.T.&T. has taken steps to discover violations; Lemmo observed Hanson and Scott replacing poles about three times per month. The record supports a finding that N.E.T.&T. has effectively enforced its work rules when violations have been discovered; each of these employees had had deviations from safe practice brought to his attention in the past. Employees have been disciplined for violations by measures including suspension. Moreover, Scott's statement to Lemmo that Scott "had better get a pole guard" obviated a need for further instruction or inquiry about the need to use a pole guard on this assignment. On these facts, Commissioner Cottine finds that N.E.T.&T. provided supervision adequate to detect noncompliance with the rules and discipline sufficient to discourage such noncompliance. Accordingly, Commissioner Cottine concludes that N.E.T.&T. has successfully proven its defense of unpreventable employee misconduct. [[12/]] Accordingly, he joins with Chairman Rowland in vacating this item of the citation. [[13/]]

III. The Glove Item

A. The Judge's Decision

Judge Furcolo vacated the item alleging the failure to use insulating gloves. He rejected N.E.T.&T.'s unpreventable employee misconduct defense, finding that employees not only often did not use insulating gloves, but apparently were never disciplined for such failure. Nevertheless, the judge found that N.E.T.&T. had no knowledge of the employer's failure to wear insulating gloves and, thus, he vacated this item on that basis.

B. N.E.T.&T.'s Contentions

N.E.T.&T. maintains that the Secretary failed to show noncompliance. First, N.E.T.&T. disputes the Secretary's implicit interpretation of the standard for-bidding employees to undertake any part of the pole-setting procedure without using insulating gloves. N.E.T.&T. observes that the standard, see note I supra, speaks in terms of "a possibility" of contact. It therefore argues that the item should be vacated because there is no direct evidence that Hanson was handling the pole with either his hands or tools at the same time that it was possible for the pole to contact a power conductor. N.E.T.&T. maintains that the Secretary's only evidence to support his allegation of noncompliance is N.E.T.&T.'s post- accident investigation report. It objected at the hearing to the admission of the report on the sole ground that it was hearsay. It apparently renews this argument on review and also argues that because the report contains only conclusions of N.E.T.&T.'s committee, the report is insufficient evidence of a violation.

N.E.T.&T. argues that the Commission should adopt the judge's finding that it lacked knowledge of the violative condition. Scott, an experienced telecommunications worker, testified that, during the lashing operation, a possibility of contact between the pole and conductor exists once the pole comes within one foot of the conductor. At that point, Scott stated, he would either stop lashing or put on insulating gloves before continuing. N.E.T.&T. argues that the standard permits the judgment which Scott expressed in his testimony. N. E. T. &T. argues that inasmuch as Scott wore insulating gloves whenever he reasonably judged that there was a possibility of electrical shock, N.E.T.&T. could not, with reasonable diligence, have known that Hanson (an even more experienced employee than Scott and similarly trained) would have failed to wear insulating gloves when required to do so under the standard.

As to the employee misconduct defense itself, N.E.T.&T. points to Judge Furcolo's finding that N.E.T.&T. had a very thorough and detailed safety program which included regular observations of employees in the field. NET.&T. asserts that the record indicates that employees were disciplined; there was no testimony that work rules were not enforced. N.E.T.&T. also argues that, since the glove standard governs employee conduct and does not specify employer conduct for compliance, the Secretary has the burden of establishing "what the employer could feasibly have done to change the employee's behavior."

C. Was a violation of the glove standard established?

As with the pole guard item, the key questions are whether N.E.T.&T. was in compliance with the standard, whether it had knowledge of the violative condition, and whether it made out its unpreventable employee misconduct defense. Commissioners Cleary and Cottine concur in finding a violation. They agree, first, that the Secretary established N.E.T.&T.'s noncompliance because gloves were not worn while Hanson was handling the new pole and while there was a possibility of contact with a power conductor. Inasmuch as there is no doubt that gloves were not worn while Hanson was handling the new pole during the lashing operation, the only question relating to noncompliance is whether there was a "possibility" of contact between the pole and a power conductor during the operation. The record establishes that this lashing operation brought the poles within 1 1 1/2 feet of each other, that some of the power conductors on the old pole were uninsulated, and that the wet, new pole was uninsulated. The possibility of contact under these circumstances is manifest. By requiring its employees to wear insulating gloves when handling the pole with hands or tools, N.E.T.&T. clearly recognized that a possibility of contacting power lines is often present in a joint use pole-replacement situation. The testimony of supervisors Cronin and Lemmo regarding the company policy requiring pole covers further demonstrates that N.E.T.&T. assumed the existence of a possibility of contact whenever this replacement task was undertaken. Indeed, the existence of a possibility of contact between pole and conductor under the circumstances is graphically demonstrated by the strong circumstantial evidence indicating that Hanson sustained his injury here as a direct result of such contact. [[14/]] The circumstances of the accident are probative of the possibility of contact. See Concrete Construction Corp., 76 OSAHRC 47/A2, 1 BNA OSHC 1133, 1135 n.3, 1975-76 CCH OSHD ¶ 20,610, p. 24,664 n.3 (No. 2490, 1976). Thus, the facts support a finding that contact between the electric company's energized equipment on the old pole and tile wet, uninsulated new pole was at the very least possible, if not probable. Accordingly, the standard was not complied with.

Commissioner Cleary also finds that the Secretary established that N.E.T.&T., with the exercise of reasonable diligence, could have known of the employee's failure to use rubber insulating gloves during the lashing operation. [[15/]] Commissioner Cleary rejects N.E.T.&T. 's argument that it exercised reasonably diligence in relying on experienced employees to make reasonable judgments based on a one-foot "rule" about whether contact was possible. He notes, first, that the one-foot rule was not a rule at all, but merely a statement of personal practice uttered by the same employee who, as a matter of personal practice, routinely neglected to use pole covers. The asserted reasonableness of this "rule" belied both by N.E.T.&T.'s own work rule which requires that a supervisor be notified if a new pole will come within 3 feet--not 1 foot--of the nearest electric primary wire and a temporary connection between the new and old poles cannot be placed and also by its safety instruction that insulating gloves worn when handling the pole with hands or tools. Commissioner Cleary also notes that an employer cannot claim that it is reasonably diligent in relying on an experienced employee's judgment when the rule of thumb that the employee uses is contrary to the Secretary's standards. A related provision of section 1910.268 provides that, for power lines with a voltage range between 2kV and 15kV, a separation of 24 inches must be maintained between an employee and power lines, energized parts, and conductive objects he handles unless either the employee is wearing gloves, or the power lines, energized parts, or conductive objects are insulated, or the power lines and equipment are deenergized. 29 C.F.R. § 1910.268(b)(7) and Table R-2.[[16/]] The power line here carried 13.8kV, the energized power lines wrapped around insulators were not guarded by pigs, and the wet pole--a conductive object--was not insulated with a pole cover. The employee's failure to wear gloves when the pole was within one foot of energized lines and parts was therefor inconsistent with section 1910.268. Although there may be room for debate whether a pole is close enough to an energized line or part to warrant the wearing of gloves under section 1910.268(n)(11)(iv), the debate must end when section 1910.268 specifically requires gloves.[[17/]] Commissioner Cleary also finds a failure to exercise reasonable diligence by N.E.T.&T. for the reasons stated below regarding its unpreventable employee misconduct defense.

Commissioners Cleary and Cottine reject N.E.T.&T.'s unpreventable employee misconduct defense. It had established a workrule which encompassed the requirements of the cited standard (see note 17 supra), and had adequately communicated that workrule to its employees. However, there must also be effective enforcement of the workrule. Jensen Construction Co., supra; see Danco Construction Co. v. OSHRC, supra. In particular, "[e]ffective safety enforcement requires a diligent effort to discover and discourage violations of safety rules by employees." Paul Betty d/b/a Betty Bros., 81 OSAHRC 18/B11, 9 BNA OSHC 1379, 1981 CCH OSHD ¶ 25,219 (No. 76- 4271, 1981). Here, insulating gloves are worn under other work gloves when employees work in the aerial bucket. It is undisputed that it is therefore difficult, if not impossible, to determine whether an employee in an aerial bucket is wearing insulating gloves. N.E.T.&T. was or should have been aware that its visual safety inspections were inadequate to detect employees' failure to wear insulating gloves while working in aerial buckets. Because N.E.T.&T.'s practice of making cursory, visual spot checks was not an effective means of detecting this type of violation, [[18/]] Commissioners Cleary and Cottine conclude that a violation was established.[[19/]]

Commissioners Cleary and Cottine agree with the Secretary that the violation was serious. For a violation to be characterized as serious under section 17(k) of the Act, 29 U.S.C. § 666(j), [[20/]] there must be a substantial probability that death or serious physical harm could result if an incident occurred; the probability that an incident will occur is irrelevant. See Wright & Lopez, Inc., 81 OSAHRC 92/D1O, 10 BNA OSHC 1103, 1114, 1981 CCH OSHD ¶ 25,728, p. 32,079 (No. 76-256, 1981). It is clear that, in the event of an accident, death or serious harm would have been substantially probable, as is indicated by the incident occurring in this case.Commissioners Cleary and Cottine now turn to the assessment of a penalty.[[21/]] The parties have stipulated that N.E.T.&T. employs approximately 41,500 persons. As to gravity, the following elements must be considered: the number of employees subjected to the hazard (one); the duration of exposure (less than two hours); the precautions taken against injury (N.E.T.&T. arranged for the electric company crew to come and rubber up the lines); and the degree of probability that an injury would occur (N.E.T.&T. stipulated at trial that there was a "possibility" of serious injury or death here). N.E.T.&T. is entitled to some credit for good faith on account of its safety program, which the judge commended. Under the circumstances, Commissioners Cleary and Cottine conclude that a penalty of $550 is appropriate.

Accordingly, the judge's decision is reversed. The citation item involving the pole guard is vacated. The citation item involving the insulating gloves is affirmed; a penalty of $550 is assessed.
SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 27 1983

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FOOTNOTES:

[[1/]] The standards provide:

§ 1910.268 Telecommunications.

(n) Overhead lines.

(11) Handling poles near energized power conductors.

(iii) (A) In joint lines where the power voltage is greater than 750 volts but less than 34.5kV phase to phase (20 kV to ground), wet poles being placed, moved or removed shall be insulated with either a rubber insulating blanket, a fiber-glass box guide, or equivalent protective equipment.

(iv) Insulating gloves shall be worn when handling the pole with either hands or tools, when there exists a possibility that the pole may contact a power conductor. Where the voltage to ground of the power conductor exceeds 15kV to ground, Class II gloves (as defined in ANSI J6.6-1971) shall be used. For voltages not exceeding l5kV to ground, insulating gloves shall have a breakdown voltage of at least 17kV,

[[2/]] An "insulating blanket" is a rubber blanket, approximately 3 feet square, that is wrapped around a pole and secured with twine in order to insulate the pole.

[[3/]] A "box guard" is a square, fiberglass covering, approximately 6 feet long, that fits over the top of a pole to insulate the pole.

[[4/]] N.E.T.&T.'s investigative report is property admitted in evidence as an
admission by a party opponent and is not hearsay. Rule 801(d)(2), Federal Rules of Evidence.

[[5/]] N.E.T.&T.'s safety practices for placing or removing poles near electric power lines provide in part:
2.03 Poles being placed or removed where power voltages are over 5000 volts but not over 20,000 volts to ground must be insulated.

2.06 All employees handling the pole, either with their hands, pike poles,or other tools, shall wear the appropriate insulating gloves (with protectors) as outlined in table A throughout the time that there is a possibility that the pole may contact the power conductors. All parts of the body, other than the insulating glove-protected
hands, shall be kept free from contact with the pole or with tools used in handling the pole (including pole derrick and truck) during the period that the pole may contact the power conductors.

7.10 If the new pole will be within 3 feet of the nearest electric primary wire and a temporary connection between the new and the old poles cannot be placed, notify your supervisor.

[[6/]] N.E.T.&T. argued before the judge that the Secretary had failed to establish
that the new pole was wet. The judge found otherwise. The correctness of the finding was not raised in either the petition for review or the direction for review. We therefore do not review the finding. Commission Rule 92(c), 29 C.F.R. § 2200.92(c).

[[7/]] The standard provides:

Subpart V -- Power Transmission and Distribution
§ 1926.950 General requirements.

(c) Clearances. The provisions of paragraph (c)(1) or (2) of this section shall he 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:

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

[[8/]] For this reason, it is not necessary to consider the correctness of the judge's view that the absence of pigs rendered the line hose non- equivalent.

[[9/]] With respect to the admissions of the Secretary's counsel regarding interpretation of the cited standard, we note that we are not bound by the legal views of the Secretary's attorneys. See United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, l977-78 CCH OSHD ¶ 21,795 (Nos. 10825 & 10849, 1977).

[[10/]] Chairman Rowland does not agree that § 1910.268(n)(11)(iii)(A) requires equivalent protective equipment to be placed on the pole and nowhere else. The majority relies on its appraisal of the "sense" of the standard and a related provision. The standards, however, say only that the pole must be "insulated." "Insulated" is defined at § 1910.268(s)(22) as:

Separated from other conducting surfaces by a dielectric substance (including air space) offering a high resistance to the passage of current. Note: When any object is said to be insulated, it is understood to be insulated in suitable manner for the conditions to which it is subjected. Otherwise, it is, within the purpose of these rules, uninsulated. Insulating coverings of conductors is one means of making the conductor insulated.

Nothing in the definition of "insulated" specifies the location of the insulation. Indeed, the language of the standard on which the majority relies, § 1910.268(n)(11)(iii)(C), supports my conclusion that the cited standard does not require insulation to be placed on the pole itself. Rather that standard refers to insulation "of"--not "on"--the pole.

Moreover, the purpose of § 1910.263(n)(11)(iii)(A) is to prevent contact between wet poles and live conductors. It is therefore entirely consistent with the words and purpose of the standard to hold that a pole may be "insulated in a suitable manner" from electric power lines if the lines are shielded by an insulating cover. The Secretary has acknowledged as much by admitting that insulating line hose is a type of protective equipment used by electric company employees when working in proximity to power lines, that line hose is equivalent to a pole guard for purposes of preventing contact between the pole and live conductors, and that line hose is one of the alternative types of protective equipment which meets the requirements of a standard designed to protect electric company workers, 29 C.F.R. § 1926.950(c)(1)(ii).

Contrary to the majority's assertion, its construction of the standard is not "most consistent with its remedial purpose." Insulation not placed on the pole may well afford equally adequate protection against contact with energized lines. Indeed, it is conceivable that, at least in some instances, insulation on the live conductors would afford superior protection for employees engaged in a pole-setting operation. The majority states no reasons why a "liberal" interpretation is necessary to achieve the statutory objective of protecting employees when the interpretation it rejects appears equally to effectuate that purpose.

Nevertheless, Chairman Rowland concludes that N.E.T.&T. failed to satisfy § 1910.268(n)(11)(iii)(A) because he agrees with the judge that, under the circumstances of this case, the absence of pigs from part of the energized lines prevented the line insulation from qualifying as "equivalent protective equipment" within the meaning of the standard. However, Chairman Rowland would vacate this item. of the citation in any event; for the reasons stated in Part II-C infra, he finds that the Secretary failed to show that N.E.T.&T. had knowledge that pole guards--a permissible alternative--were not used.

[[11/]] Chairman Rowland does not, however, express an opinion on whether an employer is required to do more than communicate work rules to non-supervisory employees, as here. See Marson Corp., 82 OSAHRC 29/C4, 10 BNA OSHC 1660, 1666 n.16, 1982 CCH OSHD ¶ 26,075 p. 32,808 n.16 (No. 78-3491, 1982) (Rowland, Chairman, dissenting).

[[12/]] Commissioner Cottine notes that the mere fact that two employees of this large company had violated the workrule on numerous occasions does not rebut the overwhelming evidence that N.E.T.&T. took adequate steps to enforce the workrule in this case. See Jones & Laughlin Steel Corp.82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ¶ 26,128 (No.76-2636,1982); cf. Daniel Int'l Corp., Brown & Williamson Project 81 OSAHRC 57/A2, 9 BNA OSHC 1980,1983, 1981 CCH OSHD ¶ 25,492, pp. 31,789-90 (No. 15960, 1981), rev'd, 638 F.2d 361 (11th Cir. 1982). The fact that one of those employees did not properly understand the workrule also does not rebut the overwhelming evidence that the workrule was adequately communicated. Though Commissioner Cottine concluded in Jones & Laughlin that neither the case law nor the facts supported the vacation of the citation, the Commission majority found that the employer could not have discovered the violations of its safety rules regarding crane boarding, even though 1O% of the hundreds of employees, who board its many cranes each day violated the rules.

[[13/]] Commissioner Cleary dissents from the majority's disposition because he concludes that N.E.T.&T. could have known of the violation had it been reasonably diligent and because N.E.T.&T. failed to establish its unpreventable employee misconduct defense. Despite the existence of N. E.T. &T.'s workrule and despite the Secretary's admission that N.E.T.&T. adequately trained employees to use pole guards when replacing poles, the record evidence shows that Scott nevertheless believed that it was proper not to use pole guards where the electric company had rubbered up its lines. Cf. Jones & Laughlin Steel Corp., n.12 supra (employees knowingly violated company safety rules on crane boarding solely for convenience). This asserted belief, together with Scott's evident, persistent failure to use pole guards under such circumstances, belies N.E.T.&T.'s claim--and the Secretary's admission--that employees were adequately trained. See New England Telephone and Telegraph Co., 80 OSAHRC 54/A2, 8 BNA OSHC 1478, 1980 CCH OSHD ¶ 24,523 (No. 76-3010, 1980). In addition, the fact that Scott, at a minimum, violated the pole-guard rule 15-20 times (with Hanson), and was never disciplined for these violations shows that N.E.T.&T.'s enforcement policy under the pole guard standard was ineffective. Simple observation by supervisors would have detected violations of the pole guard workrule.Cf. Jones & Laughlin Steel Corp., supra, (employer's monitoring of employee crane boarding was not shown to be inadequate under circumstances where observation of employees' violations was difficult).

Commissioner Cleary would also draw on the evidence that neither Scott nor Hanson wore gloves, as required, during lashing operations. The two employees also performed the whole task of the pole-setting without the protection required from the live power lines. Even under N.E.T.&T's reading of the standard, the insulation of the wires by the electric company cannot be considered equivalent protection because, as Judge Furcolo noted, conductors were not insulated with pigs. The fact that an employee was injured is persuasive evidence of the point. Moreover, there was no attempt to ascertain whether the pigs had been placed on the lines by the electric company.

In sum, while there is testimony that N.E.T.&T. had a comprehensive safety program, the picture that emerges from this case is that Scott and Hanson had insufficient protection throughout this whole operation. The "protection" afforded by insulation installed by the electric company was illusory, and the employees were left to their own judgment as to whether, and under what circumstances they should use other protective measures. The evidence as to what actually occurred shows an operation that was hazardous in the extreme, in the light of which the testimony indicating a safety program is unpersuasive. Any one of three safety precautions (use of gloves, pigs, or pole guards) would have prevented Hanson's injury. It is very doubtful that all three of these safety failures could have coincided had there been an effective safety program.

[[14/]] As noted above, N.E.T.&T.'s investigative report qualifies as an admission by a party-opponent and is not hearsay. See n.4, supra. The report states that "the old and new pole[s] were probably brought together. . . [and tile] exposed bracket on the old pole... was brought into contact with the new pole. . . . " N.E.T.&T. argues that the report contains merely speculative, conclusionary statements by persons lacking first-hand knowledge and is therefore insufficient, even if it is admissible. While Commissioners Cleary and Cottine agree that the report was prepared by persons lacking first-hand knowledge, they do not agree that the report is insufficient or unreliable. N.E.T.&T. overlooks that the report represents the conclusions of a group of highly responsible N.E.T.&T. officials who are presumably experienced and knowledgeable in these matters. N.E.T.&T. does not suggest that its committee's inferences are implausible and it does not suggest any other plausible manner by which Mr. Hanson suffered injury. Direct evidence established that, at a time when it was possible for the uninsulated, wet new pole to contact a power conductor on the old pole, Hanson was alone in the aerial bucket performing a task which tends to bring the two poles closer together immediately before being electrocuted. It is a reasonable inference--and N.E.T.&T.'s committee concluded--that Hanson created an electrical circuit through his body while working on lashing wires between the new and old poles.

[[15/]] See supra n.13.

[[16/]]This provision is very similar to § 1926.950(c)(1), upon which N.E.T.&T. relies.

[[17/]]N.E.T.&T. also implies that the cited standard may be constitutionally defective on grounds of vagueness if the standard is not read to permit the type of employee judgment expressed by Scott regarding when the possibility of contact exists between the pole and the conductor. Commissioners Cleary and Cottine reject this suggestion. The company's safety instruction tracks the cited standard by requiring the wearing of insulating gloves whenever there is a possibility that a pole may contact a power conductor while the pole is being handled. The cited standard is not unenforceably vague as applied to N.E.T.&T.

[[18/]] Commissioners Cleary and Cottine reject N.E.T.&T.'s argument that the Secretary must establish through expert testimony the feasibility of specific measures to prevent alleged employee misconduct. It is well-settled that unpreventable employee misconduct is an affirmative defense, Marson Corp., supra, whereby the employer endeavors to show that it did everything it could reasonably have done to prevent the violation. Accordingly, the Secretary was not obliged to prove the feasibility of specific measures to correct the misconduct of N.E.T.&T. employees.

[[19/]] Chairman Rowland dissents from his colleagues' disposition of this item. He would hold that the Secretary failed to establish that N.E.T.&T., through the exercise of reasonable diligence, could have known of the violation. Such proof is an essential element of the Secretary's case, Marson Corp., 10 BNA OSHC at 1663, 1982 CCH OSHD at p. 32,805. N.E.T.&T. to expect Hanson not to use insulating gloves where there was a possibility of contact. Both Scott and Hanson were very experienced employees. Supervisor Cronin and for. an Lemmo had never known of an instance when Scott and Hanson failed to use insulating gloves while setting poles when there was a possibility of contact with the electrical wires. Scott testified that he would have been insulted if Lemmo had reminded him that morning to wear his gloves. Without being reminded, Scott and Hanson wore their insulating gloves while setting the pole. In Chairman Rowland's view, these facts established that N.E.T.&T.'s workrule regarding gloves was adequately communicated to employees. The only possible additional measure which N.E.T.&T.'s foreman could have taken would have been to remain at that worksite for the duration of the entire assignment, rather than leaving for two hours to inspect other worksites. Under the circumstances, it cannot be said that this additional step was called for or that N.E.T.&T., through Lemmo, otherwise failed to exercise reasonable diligence.

Chairman Rowland also would not rely on the requirements of § 1910.268(b)(7). Paragraph (b) contains requirements for telecommunications work generally, whereas the provision at issue here, § 1910.268(n)(1)(iv), is a more specific provision directed at the particular work operation of moving poles.

[[20/]] Section 17(k), 29 U.S.C. § 666(j), states:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[21/]] Section 17(j), 29 U.S.C. § 666(1), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.