Davis H. Elliot Construction Company, Inc.

Read the official release (oshrc.gov)

Plain-English summary

A line worker was injured while transferring energized power lines from an old utility pole to a new one from an aerial-lift bucket. The judge affirmed an outrigger item because the truck's rear outriggers were set on loose garden soil without separate pads, and the electrical-line standard did not preempt that additional vehicle-stability protection. The penalty was reduced to $2,500 because later engineering analysis showed a low likelihood that the truck would actually tip. A separate item alleging that the injured apprentice was unqualified was vacated because he had completed OSHA's required training, and the company's more demanding internal supervision policy did not raise the regulatory minimum.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.67(c)(2)(vii); 29 C.F.R. § 1910.269(l)(1).
• Outcome: Serious outrigger-pad item affirmed for $2,500; qualified-employee electrical item vacated; four other items withdrawn.
• Key point: An employer's safety program may exceed OSHA's qualification requirements without making every violation of the stricter internal policy a violation of the cited federal standard.

Full text (OSHRC public release)

     Some personal identifies have been redacted for privacy purposes

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION




      SECRETARY OF LABOR,

                            Complainant,

             v.

      DAVIS H. ELLIOT CONSTRUCTION                            DOCKET NO.               13-1184
      COMPANY, INC.

              and its successors,

                            Respondent.

Appearances:
Demian Camacho, Esq., Office of the Solicitor, U.S. Dept. of Labor, Dallas, Texas
For Complainant

    Carl B. Carruth, Esq., McNair Law Firm, P.A., Columbia, South Carolina
             For Respondent

Before: Administrative Law Judge Brian A. Duncan

                                    DECISION AND ORDER

                                          Procedural History

    This matter is before the United States Occupational Safety and Health Review

Commission (“Commission”) pursuant to Section 10(c) of the Occupational Safety and Health

Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). Between February 5 and June 7, 2013, the

Occupational Safety and Health Administration (“OSHA”) investigated a workplace accident

which occurred at 52148 West 46th Street in Oilton, Oklahoma (“worksite”). (Tr. 137). As a

result of that inspection, OSHA issued a Citation and Notification of Penalty (“Citation”) to

Respondent. The Citation alleged six serious violations of the Act, with total proposed penalties

of $37,500.00. Respondent timely contested the Citation. A trial was conducted in Oklahoma

City, Oklahoma on May 6–7, 2014. At the commencement of the hearing, Complainant
withdrew Items 2, 4, 5, and 6 of the Citation. (Tr. 9–10). Thus, the only remaining disputed

issues for trial were Items 1 and 3, and their corresponding penalties totaling $12,500.00.1 The

parties each submitted post-trial briefs for consideration.

     Ten witnesses testified at trial: (1) [redacted], a former employee of Respondent; (2)

Tony Huff, residential property owner of 52148 West 46th Street, Oilton, Oklahoma; (3) Denny

Downing, a former management employee of Respondent; (4) [redacted], father of [redacted];

(5) Marcus Rambo, OSHA Compliance Safety and Health Officer (“CSHO”); (6) Don Adkins,

Respondent’s Safety Manager; (7) Grant “Matt” Rosemond; employee of Respondent; (8) Brian

Culley; employee of Respondent; (9) Rick Thomas, Respondent’s Field Safety Director; and

(10) Roger “Dean” Harris, mechanical and professional engineer.

                                               Jurisdiction

     The parties stipulated that the Commission has jurisdiction over this proceeding pursuant

to Section 10(c) of the Act. (Tr. 22). The parties also stipulated that, at all times relevant to this

proceeding, Respondent was an employer engaged in a business and industry affecting interstate

commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Tr.

21–22). See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

                                              Background

      On January 28, 2013, a crew of Respondent’s employees were installing a new utility

pole and transferring live electric power lines between the old pole and the new pole on private

residential property located at 52148 West 46th Street, Oilton, Oklahoma. (Tr. 39–40, 137). The

crew that day consisted of [redacted], Denny Downing, Matt Rosemond, and Josh Pruitt. (Tr.

47). In order to transfer the power lines, [redacted], Mr. Rosemond, and Mr. Pruitt were each

1

. Citation 1, Item 1 was assessed at $5,500.00. Citation 1, Item 3 was assessed at $7,000.00.

                                                      2

working aloft in separate aerial lift buckets. (Tr. 65–66). Mr. Downing, [redacted]’s direct

supervisor, was observing and supervising the crew’s work from the ground. (Tr. 47-48, 66). At

some point during the transfer, Mr. Pruitt began experiencing problems with his aerial lift

controls and moved his bucket away from the utility pole. (Tr. 65). Mr. Rosemond, who

identified himself as a supervisor, though not acting as the crew foreman that day, swung away

from the utility pole to help Mr. Pruitt fix his controls. (Tr. 65). [redacted], while still under the

supervision of Foreman Downing from the ground, continued to work on the power line transfer.

(Tr. 47–48). A few minutes after Mr. Rosemond and Mr. Pruitt swung away from the pole,

[redacted] contacted a live power line energized at 7,200 volts. (Tr. 44, 50–51, 65). As a result,

[redacted] suffered electrical burns to his chest and right knee, which required hospitalization.

(Id.).

     On February 5, 2013, in response to a complaint, CSHO Marcus Rambo initiated an

inspection of the worksite. (Tr. 137–38; Ex. C-3). Although it was approximately a week after

the accident, the aerial lift truck used by [redacted] remained in the same location as it was at the

time of the accident. (Tr. 80). Based on CSHO Rambo’s observations, as well as his

conversations with Respondent’s employees and managers, OSHA issued the aforementioned

Citation and Notification of Penalty on June 12, 2013.

                                      Applicable Law

     To prove a violation of an OSHA standard, Complainant must prove, by a

preponderance of the evidence, that: (1) the cited standard applied to the facts; (2) the employer

failed to comply with the terms of the cited standard; (3) employees were exposed or had access

to the hazard covered by the standard, and (4) the employer had actual or constructive

knowledge of the violative condition (i.e., the employer knew, or with the exercise of

                                              3

reasonable diligence could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-

1747, 1994).

   A violation is “serious” if there was a substantial probability that death or serious

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k).

Complainant need not show that there was a substantial probability that an accident would

actually occur; he need only show that if an accident occurred, serious physical harm could

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15

BNA OSHC 2072 (No. 88-0523, 1993).

                                        Discussion

                                    Citation 1, Item 1

   Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:

   29 C.F.R. § 1910.67(c)(2)(vii): Outriggers were not positioned on pads or a solid
   surface:

   On or about January 28, 2013, at an electrical pole change-out location, the
   employer did not ensure outrigger pads were used when outriggers were extended
   and resting on a soft surface, exposing the employee to the hazard of truck
   tipping.

   The cited standard provides:

   The brakes shall be set and outriggers, when used, shall be positioned on pads or
   a solid surface. Wheel chocks shall be installed before using an aerial lift on an
   incline.

29 C.F.R. § 1910.67(c)(2)(vii).

   During his inspection of the worksite, CSHO Rambo photographed [redacted]’s Altec

AA755 bucket truck parked with its rear bumper facing the utility pole. (Tr. 80; Ex. C-18 at 13).

The truck was parked with the front part of the truck in a grassy area and the rear portion of the

                                             4

truck located in a dirt area. (Tr. 42–43, 59, 81; Ex. C-18). According to the property owner,

Tony Huff, he had “disced” the area around the utility pole, which included the soil underneath

the rear end of the truck in preparation for planting his garden. (Tr. 81–82). Thus, the surface

soils in that area of the property could be characterized as “loose”. (Tr. 446). All four of the

outriggers on [redacted]’s bucket truck had been deployed; however, only the outriggers located

on the front of the vehicle had pads placed beneath them. (Tr. 97–98, 151). By the time CSHO

Rambo visited the worksite, the rear outriggers, which had no pads, were partially submerged in

the dirt, and the soil in the area was wet and muddy. (Tr. 166; Ex. C-18 at 9, 13).2

                                  The Cited Standard Applies

    Complainant argues that the cited standard applies according to the terms of 29 C.F.R. §

1910.67, which includes “[v]ehicle-mounted elevating and rotating work platforms.” There is no

dispute that the Altec AA755 bucket truck is such a vehicle; however, Respondent argues that

1910.67(c)(2)(vii) is preempted by a more specific standard; namely, 29 C.F.R. §

1910.269(p)(2), which provides:

    (2) Outriggers
    (i) Vehicular equipment, if provided with outriggers, shall be operated with the
    outriggers extended and firmly set as necessary for the stability of the specific
    configuration of the equipment. Outriggers may not be extended or retracted
    outside of clear view of the operator unless all employees are outside the range of
    possible equipment motion.
    (ii) If the work area or the terrain precludes the use of outriggers, the equipment
    may be operated only within the maximum load ratings for the particular
    configuration of the equipment without outriggers.

29 C.F.R. § 1910.269(p)(2).

    According to 29 C.F.R. § 1910.5(c)(1), “a specific standard preempts a general one only

if ‘a condition, practice, means, methods, operation, or process’ is already dealt with by the

2
The Court recognizes, however, that the condition observed by CSHO Rambo may not have reflected the condition
at the time of the accident, because significant rain fell in the area the day after the accident. (Tr. 424).

                                                  5

specific standard.” The Cincinnati Gas & Electric Co., 21 BNA OSHC 1057 (No. 01-0711,

2005) (citing L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 669 (D.C. Cir. 1982)).

However, a general standard is not preempted by a specific standard “when it provides

meaningful protection to employees beyond that afforded by the more specific standard.” Id.

(citing Bratton Corp., 14 BNA OSHC 1893, 1896 (No. 83-132, 1990)).

   In one respect, Respondent is correct that the standards found in Section 1910.269 are

specifically applicable to electrical line work, whereas the cited standard is applicable to vehicle-

mounted elevating and rotating work platforms generally. However, this in and of itself does not

establish preemption. As noted by Complainant, Section 1910.269(a)(1)(iii) states:

   This section applies in addition to all other applicable standards contained in this
   Part 1910. Employers covered under this section are not exempt from complying
   with other applicable provisions in Part 1910 by the operation of § 1910.5(c).
   Specific references in this section to other sections of Part 1910 are for emphasis
   only.

29 C.F.R. § 1910.269(a)(1)(iii).

   Thus, it must be determined whether there is a conflict inherent in the language of these

two standards. Section 1910.269(p)(2) sets forth two basic requirements: (1) If your vehicle has

outriggers, they must be extended and set as necessary for stability; and (2) if, due to adverse

conditions, you cannot set your outriggers, then you cannot exceed the maximum load ratings of

the vehicle without the outriggers. Section 1910.67(c)(2)(vii), on the other hand, simply requires

that when outriggers are used, they have to be placed on a solid surface or pads. The two

standards in question do not appear to conflict with one another but are, instead, complementary.

The conditional statement of 1910.67(c)(2)(vii), “when used”, fits within the confines of the two

subsections of 1910.269(p)(2), which entertain the possibility that conditions may prevent the

use of outriggers. In that case, an operator is limited to the load ratings of the vehicle without

                                             6

outriggers. 29 C.F.R. § 1910.269(p)(2)(ii). However, to the extent that outriggers are deployed

pursuant to 1910.269(p)(2)(i)—“when used”—then 1910.67(c)(2)(vii) requires their placement

on a solid surface or the use of outrigger pads. In other words, 1910.269(p)(2) says nothing

about the surface upon which the outriggers are placed. It addresses stability based on the

configuration and load ratings of the equipment/vehicle. In that regard, the Court finds that

1910.67(c)(2)(vii) “provides meaningful protection to employees beyond that afforded by the

more specific standard” and is not preempted by 1910.269(p)(2). The Cincinnati Gas & Electric

Co., supra. Accordingly, the cited standard applied.

                      The Terms of the Standard Were Violated

   Due to the conditions observed by CSHO Rambo on February 5th, the property owner’s

testimony, and the testimony of Respondent’s employees that the outrigger feet on [redacted]’s

truck and others sunk into the ground when deployed, Complainant argues that the outriggers on

the rear of [redacted]’s truck were not positioned on a solid surface, and therefore required the

use of outrigger pads. Respondent proffers two separate arguments in response. First,

Respondent contends that the metal plates attached to the end of each outrigger, which were also

referred to as “feet” or “shoes”, constituted a “pad” within the meaning of the standard. (Tr. 324-

325, 430). Second, through the testimony of its expert, Respondent argues that the disced soil of

the property owner’s garden constituted a solid surface. The Court disagrees on both counts.

   The plain language of the standard states that outriggers “shall be positioned on pads or a

solid surface.” 29 C.F.R. § 1910.67(c)(2)(vii) (emphasis added). Contrary to Respondent’s

argument regarding the characterization of the shoes or feet at the end of the outriggers as

“pads”, the Court finds the plain language of the standard indicates that a pad, similar to a “solid

surface”, is separate from the outrigger. Thus, a pad, according to the standard, is something that

                                             7

an outrigger is supposed to be “positioned on” rather than “equipped with”. In addition,

Respondent’s own employees, including Safety Director Adkins, referred to the plates at the end

of the outriggers as “feet.” (Tr. 61, 97, 352, 389–90). Outrigger “pads” were clearly defined by

Safety Director Adkins: “They’re an additional separate piece…they are plates or cribbing or

mats that you put underneath the outrigger foot to give you a larger surface area to put the foot

on.” (Tr. 298-299). Respondent’s own employee and supervisor testimony undercuts

Respondent’s argument that it did not have proper notice of the meaning of the term “outrigger

pad” as used in the standard.

   Through the testimony of its engineering expert, Dean Harris, Respondent also attempted

to show that the disced area of Mr. Huff’s garden qualified as a solid surface within the meaning

of the cited standard. (Tr. 446–457). In sum, Mr. Harris opined that the disced soil in the

homeowner’s garden area could be considered stable once the loose soil on the surface was

compressed under the weight of the outrigger foot down to the soil substrate, which he estimated

to be a few inches below the surface. (Id.).

   While there was no evidence challenging the accuracy of Mr. Harris’s calculations, the

Court does not agree with his conclusion that the surface upon which the outriggers were placed

was “solid” within the meaning of the standard. The standard appears to address situations

where an equipment operator arrives at a worksite and makes an immediate assessment based on

the visible conditions of the worksite at the time; namely, whether the surface the vehicle is

parked on is solid. It does not require, nor reference, a post-work engineering analysis of soil or

substrate as performed by Mr. Harris. The simplicity of the cited regulation was exemplified by

the actions of the digger operator, Mr. Culley, who worked at the site the day before the

accident. Mr. Culley testified that when he positioned his own truck next to the utility pole to

                                             8

dig a new hole for the replacement pole, he extended his outriggers. When he saw them sink

slightly into the loose soil on the ground, he immediately determined that he should (and did)

place outrigger pads beneath the outrigger feet. (Tr. 390).

   Respondent also introduced evidence indicating that the area near Oilton had been

experiencing dry weather conditions for a significant period of time and that it had only started

raining the day after the accident took place, which, it contends, explains the presence of mud

and dirt around the rear outriggers. (Tr. 342, 398, 415; Ex. R-24 to R-32). However, Mr. Huff

testified that he disced the soil in this area about 2-3 months earlier to use as a garden because “it

holds moisture pretty good in the wintertime.” (Tr. 85). Despite the dry weather conditions, Mr.

Rosemond testified that the outriggers on his own bucket truck also “sank maybe an inch-and-a-

half or two inches” but that he did not use outrigger pads on the day of the accident either. (Tr.

351-352).

   The Court concludes, after considering all of the evidence presented with regard to the

surface on which the outriggers were placed, that loose, disced soil in a residential garden area,

specifically chosen by a homeowner for the area’s ability to retain moisture is not a “solid

surface.” The conclusion is bolstered by Respondent’s own employees’ testimony indicating that

the outriggers on multiple trucks consistently sank/shifted from one to three inches in that area

when they were initially set. Accordingly, the Court finds that [redacted]’s rear outriggers were

not placed on a solid surface, and therefore, outrigger pads should have been used. They were

not. The cited standard was violated.

                Respondent’s Employees Were Exposed to the Hazard

   As noted above, [redacted] was aloft in an aerial lift bucket working on overhead

electrical lines, which did not have pads placed beneath the outriggers, while performing a

                                              9

power line transfer to a new utility pole. According to CSHO Rambo, this exposed him to the

potential for the truck to become unbalanced, shift, or tip, which could have resulted in

[redacted] falling out of, or with, the bucket.3 (Tr. 152–53). Thus, the Court finds that [redacted]

was exposed to the violative condition.

                      Respondent Knew or Could Have Known of the Hazard

       The Court finds that Respondent knew or could have known of the violative condition.

As a general rule, the knowledge, action, or inaction of a supervisory employee is imputable to

the employer. See Revoli Constr. Co., 19 BNA OSHC 1682 (No. 00-0315, 2001). In this case,

Mr. Downing, who was the foreman at the worksite on the day of the accident, testified that he

was aware that outrigger pads were not used on all four outriggers of [redacted]’s bucket truck.

(Tr. 97–98). Mr. Downing’s knowledge is properly imputable to Respondent. The Court also

notes that Mr. Rosemond, who was a supervisor though not designated to serve as the foreman of

the crew that day, was also present and either knew, or could have easily discovered, that

outrigger pads were not being used on the rear outriggers of [redacted]’s truck.

                                         The Violation Was Serious

       Complainant need not show that there was a substantial probability that an accident

would actually occur; he need only show that if an accident occurred, serious physical harm

could result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). In this

instance, if the bucket truck were to tip or unexpectedly shift, [redacted] could have been ejected

from the bucket, or fallen with the bucket, which could have resulted in serious injuries like

broken bones or contusions. (Tr. 154). CSHO Rambo did not determine that more serious

injuries were possible because [redacted] was tied off inside of the bucket. (Tr. 154). However,

the Court finds that if the placement of the truck on the loose soil caused the bucket to
3
[redacted] was “tied-off” inside the bucket at the time. (Tr. 154).

                                                          10

completely tip over, [redacted] could have received more serious injuries despite being “tied-off”

inside the bucket. The violation was properly characterized as serious.

                                    Citation 1, Item 3

   Complainant alleged a serious violation of the Act in Citation 1, Item 3 as follows:

   29 C.F.R. § 1910.269(l)(1): Unqualified employees were allowed to work on or
   with exposed energized lines or parts of equipment:

   On or about January 28, 2013, at an electrical pole change-out location, the
   employer allowed an unqualified employee to work on overhead power lines
   independently without direct supervision, exposing the employee to the hazard of
   electrical shock.

   The cited standard provides:

   Only qualified employees may work on or with exposed energized lines or parts
   of equipment. Only qualified employees may work in areas containing
   unguarded, uninsulated energized lines or parts of equipment operating at 50 volts
   or more. Electric lines and equipment shall be considered and treated as
   energized unless the provisions of paragraph (d) or paragraph (m) of this section
   have been followed.

29 C.F.R. § 1910.269(l)(1).

   At the time of [redacted]’s accident, he was characterized by Respondent as a Step 4

Apprentice Lineman. (Tr. 56). Respondent’s apprenticeship program has five steps. (Ex. C-16).

In 2009, [redacted] was first employed by Respondent as a groundsman, installing underground

transformers, pedestals, and power lines. (Tr. 30, 32, 35). After two years of employment with

Respondent, he left to take a job with another company, Diversified Services, where he became a

lineman apprentice. (Tr. 53, 56). During his time at Diversified, he worked with Mr. Downing.

(Tr. 55–56). [redacted] and Mr. Downing then left Diversified in 2012, and applied for and

received new positions with Respondent. Although he had worked for Respondent previously,

[redacted] was required to complete new employee orientation and safety training, and was

required to demonstrate his knowledge and skill level. (Tr. 243–45, 266; Ex. R-5, R-18, R-19).

                                            11

Based on his training, experience, and demonstration of knowledge and skill, [redacted] was

accepted into Respondent’s apprenticeship program as a Step 4 lineman apprentice. (Tr. 55,

265–66).

   According to Respondent’s Safety Manager, Don Adkins, who designed the

apprenticeship program, the program is front-loaded with all of the OSHA requirements for a

“qualified person”. (Ex. 251). See 29 C.F.R. §§ 1910.269(a)(2), 1910.269(x). In fact, Mr.

Adkins testified without contradiction that once an employee has completed Steps 1 and 2 of

Respondent’s apprentice program, they would be considered a “qualified person” according to

OSHA standards. (Tr. 251; Ex. C-16, R-18, R-19).

   Notwithstanding the level of training provided in the in early stages of Respondent’s

apprenticeship program, Respondent implemented a cautionary safety policy which does not

allow Step 4 Apprentices to work on live power lines unsupervised. (Tr. 283; Ex. C-16 at 10).

Specifically, Respondent’s program requires a supervisor to “be on pole with” or “in bucket

with” a Step 4 Apprentice. (Tr. 281–82; Ex. C-16 at 10). According to Mr. Adkins, this means a

supervisor must be aloft at the same height as the apprentice, but not necessarily in the same

aerial bucket. (Tr. 282). This policy interpretation was echoed by Mr. Rosemond, who, until a

few minutes before the accident, was working with and supervising [redacted] and Mr. Pruitt in

an elevated bucket on the line. (Tr. 368–69).

                                 The Standard Applies

   According to 29 C.F.R. § 1910.269(a), “This section covers the operation and

maintenance of electric power generation, control, transformation, transmission and distribution

lines and equipment.” Respondent’s work crew was engaged in the transfer of live power

lines—energized at 7,200 volts—from an old utility pole to a new utility pole. Neither party

                                            12

disputes that this activity was covered by the cited standard. Accordingly, the Court finds that

the standard applies.

                            The Terms of the Standard Were Not Violated

        The cited standard requires that only “qualified employees” may work with exposed,

energized lines operating at 50 volts or more. 29 C.F.R. § 1910.269(l)(1). The term “qualified

employee” is defined as follows:

        One knowledgeable in the construction and operation of the electric power
        generation, transmission, and distribution equipment involved, along with the
        associated hazards.
        NOTE 1: An employee must have the training required by paragraph (a)(2)(ii) of
        this section in order to be considered a qualified employee.
        NOTE 2: Except under paragraph (g)(2)(v) of this section, an employee who is
        undergoing on-the-job training and who, in the course of such training, has
        demonstrated an ability perform duties safely at his or her level of training and
        who is under the direct supervision of a qualified person is considered to be a
        qualified person for the performance of those duties.

29 C.F.R. § 1910.269(x).

        Section 1910.269(a)(2)(ii) lists the training and competencies required to be considered a

qualified person.4 In his brief, Complainant concedes that “[redacted] had the training required

by (a)(2)(ii) of 29 C.F.R. 1910.269 and thus satisfied the requirements of Note 1 of the definition

of a qualified employee.” Compl’t Br. at 8–9. Notwithstanding that concession, Complainant

contends that because [redacted] was still—at least according to Respondent’s program—an

apprentice-in-training, he was not a qualified employee pursuant to Note 2, which requires direct

supervision. Id. (citing 29 C.F.R. § 1910.269(x)).

        The Court rejects Complainant’s argument that [redacted] was not qualified pursuant to

the cited OSHA standard on three grounds. First, the Notes appended to 1910.269(x) appear to

be mutually exclusive means by which an employee can be considered “qualified” under the

4
. The exception listed in Note 2 regarding paragraph (g)(2)(v) does not apply in this case.

                                                          13

standard. Complainant’s argument seems to be that [redacted] was simultaneously both

qualified (pursuant to Note 1) and yet unqualified (pursuant to Note 2) at the time of the

accident. See Manganas Painting Co., Inc., 21 BNA OSHC 1964 (No. 94-0588, 2007) (a

standard must be construed to avoid an absurd result) (citing Unarco, 16 BNA OSHC 1499,

1502 (No. 89-1555, 1993)). The purpose of Note 2 was not to provide Complainant with an

alternative method of establishing a violation if the elements of Note 1 were met. Rather,

according to the preamble of 29 C.F.R. § 1910.269(l)(1):

   In the final rule, the Agency has added a note to the definition of “qualified
   employee” to indicate that employees who are undergoing on-the-job training are
   considered to be qualified if they have demonstrated an ability to perform duties
   safely and if they are under the immediate supervision of qualified employees.
   Therefore, paragraph (l)(1) of final §1910.269 no longer refers to employees in
   training. (See the discussion of the definition of this term under the summary and
   explanation of §1910.269(x).) These changes will allay the concerns of those
   who argued that the language in the proposal would have required fully trained
   qualified employees to work under the direct supervision of another qualified
   employee . . . .

Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment, 59

Fed. Reg. 4320-01 at 4379 (January 31, 1994) (emphasis added). Later in the same document,

the preamble states:

   OSHA did not intend to require employees to be knowledgeable in all aspects of
   electric power generation, transmission, and distribution equipment in order to be
   considered as ‘qualified’.
   ….
   It should be noted that the final rule uses the term “qualified employee” to refer
   only to employees who have the training to work on energized electric power
   generation, transmission, and distribution installations. Paragraph (a)(2)(ii) of
   final §1910.269 sets out the training an employee must have to be considered a
   qualified employee. A note to this effect has been included following the
   definition of this term.

Id. at 4425–26.

                                           14

Therefore, OSHA’s own published discussion of this regulation seems to indicate that the

standard supplies two independent methods by which an employee can be considered qualified:

(1) he has the training required by (a)(2)(ii), or (2) he is in the course of receiving the training

required by (a)(2)(ii) and is supervised by a person who has already received that training. By

the terms of the cited standard, [redacted] was either qualified or he was not. Complainant

concedes, and the Court agrees based on the evidence presented, that [redacted] possessed the

requisite training to be a qualified employee pursuant to (a)(2)(ii).

   The second reason the Court rejects Complainant’s argument is that there is a difference

between saying that [redacted] was not qualified pursuant to the terms of (a)(2)(ii) and saying

that he was not authorized by Respondent to perform live line transfers without direct

supervision. Respondent apparently requires its employees to participate in supervised on-the-

job training beyond the point at which they would be considered “qualified” under the cited

standard. In this instance, Complainant is attempting to use Respondent’s own apprentice

program to enforce higher standards than what is required by the cited regulation. As noted

above, Complainant conceded that [redacted] was qualified pursuant to the terms of the standard,

having received the requisite fundamental training and testing. Put simply, Respondent’s

additional training and supervision above and beyond what is required by the cited standard does

not place a higher burden on Respondent in complying with that standard.

   Lastly, assuming arguendo that Note 2 applies even though Note 1 has already been

satisfied, the Court is still not convinced that Respondent failed to comply. According to Note 2,

an individual undergoing on-the-job training can be considered “qualified” if they are under the

direct supervision of another qualified person. 29 C.F.R. § 1910.269(x). The term “direct

supervision” is not defined anywhere in Section 1910.269. At the time of the accident, Mr.

                                              15

Rosemond had swung away from the pole to assist Mr. Pruitt, leaving [redacted] as the sole

employee aloft on the energized line. Even though [redacted] was the only employee on the line

at the time, Mr. Downing, the actual crew foreman that day, was still actively observing

[redacted] from the ground. In fact, Mr. Downing testified that he was specifically watching

[redacted] work in the moments leading up to the accident, and was just about to tell [redacted]

not to lean out of the basket when he was shocked. (Tr. 101).

   Complainant argues that, because neither Mr. Rosemond nor Mr. Downing was in the

bucket with, or on the pole with [redacted] at that moment, he was not under “direct

supervision.” (Ex. C-16 at 10). Although Respondent’s own policies may prefer that a

supervisor be aloft with an otherwise OSHA-qualified trainee during a live line transfer, the

language in 1910.269(l)(1) does not impose any such requirement. There was no evidence that

Mr. Downing was unable to provide supervision to [redacted] from his location on the ground.

Complainant’s argument is wholly contingent upon what level of supervision Respondent’s

policy requires, not what the cited standard requires. The preponderance of the evidence

establishes that [redacted] was being directly supervised by Mr. Rosemond and Mr. Downing up

until a few minutes before the accident. At the specific moment of the accident, [redacted] was

still being directly supervised by Mr. Downing. Therefore, Complainant failed to prove that

Respondent violated the terms of 29 C.F.R. § 1910.269(l)(1).

                                        Penalty

    In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act

requires the Commission give due consideration to four criteria: (1) the size of the employer’s

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the

employer’s prior history of violations. Gravity is the primary consideration and is determined

                                           16

by the number of employees exposed, the duration of the exposure, the precautions taken

against injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA

OSHC 2201 (No. 87-2059, 1993). It is well established that the Commission and its judges

conduct de novo penalty determinations and have full discretion to assess penalties based on the

facts of each case and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135

(No. 93-0239, 1995); Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975).

      Respondent is a large employer, with over 1,400 employees. (Tr. 168). There was one

employee exposed to the hazard of an aerial lift basket shifting or tipping due to the failure to

use outrigger pads when outriggers were not on a solid surface. The failure to do so exposed one

employee to the potential for serious injuries. The likelihood of that type of accident actually

occurring, however, was fairly low. As explained by Respondent’s engineering expert, Mr.

Harris, a post-accident analysis of the soil,5 worksite conditions, and vehicle configuration

illustrated that the vehicle was unlikely to actually tip over while [redacted] was working in the

aerial bucket. (Tr. 444–459). Considering the totality of the circumstances discussed above, the

Court finds that a penalty of $2,500.00 is appropriate for Citation 1, Item 1.

                                                   Order

       Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

  1. Citation 1, Item 1 is AFFIRMED as a serious violation, and a penalty of $2,500.00 is

      ASSESSED; and

  2. Citation 1, Item 3 is VACATED.

5
W hile giving weight to Mr. Harris’s analysis for the purposes of penalty assessment (more specifically, the
likelihood of an actual accident occurring), the Court notes that his opinion contained several factual assumptions
concerning, among other things, soil type, soil conditions, and moisture levels at the time. (Tr. 404-465)

                                                       17

SO ORDERED.

                       Brian A. Duncan

Date: November 14, 2014 Judge Brian A. Duncan
Denver, Colorado U.S. Occupational Safety and Health Review Commission