Southwestern Bell Telephone Co. (Commission decision, January 17, 1979)

Plain-English summary

Southwestern Bell was installing telephone cable in a building under
construction in Oklahoma City. The last piece of cable on the whole job ran
through a junction box mounted above a run of utility pipes. A compliance
officer found the lineman, Paciorek, kneeling on those pipes about 16 feet
above a concrete floor, straddling the middle of three pipes spaced 8 to 12
inches apart and spanning 4 to 5 feet, pulling cable. He wore no safety belt and had no other fall protection. The company had issued him a belt. It was in the truck.

Judge Erwin L. Stuller found a violation of 29 C.F.R. § 1926.28(a), the
construction personal protective equipment standard. Commissioner Barnako,
writing for the Commission, affirmed on both questions.

Was this construction work at all? Southwestern Bell said no, and pointed to
§ 1910.268(e), the telecommunications standard covering protective equipment, as more specifically applicable. The Commission held that an employer installing telephone lines in a building under construction is engaged in construction work, so the construction standards govern unless something more specific displaces them. Nothing did, and for a reason that closes the argument completely: the telecommunications standards say by their own terms that they do not apply to construction work. A standard that excludes this work cannot be the more specific standard for it.

Could the company have known? It had no actual knowledge. Constructive
knowledge was enough, and it came from the foreman, Barnes.

Reasonable diligence obliges an employer to anticipate the hazards its employees may face and take steps to prevent exposure. Barnes knew this last section was unusual because of where the junction box sat. He knew the portable lift with guardrails, used every other time work went up off the floor, would not fit past the pipes. He knew the pipes ruled out working from a ladder. So he could reasonably have anticipated that Paciorek would end up on the pipes. He could also have anticipated that Paciorek might not use a belt, because the belt was in a truck rather than on the premises, and because no belt had been needed during the preceding three and a half weeks of this job. Barnes left without discussing how the remaining work should be done. That failure to find out what was peculiar about the operation and to give instructions for it is the constructive knowledge, and a supervisor's knowledge is the company's.

Why the safety program did not save it. Southwestern Bell had a real
program: five weeks of training before field assignment, further on-the-job
training before a lineman works alone, frequent safety meetings, a quarterly
safety quiz, and specific instruction in safety belt use, all of which Paciorek received under Barnes. He was mildly reprimanded afterward and agreed he had broken the rules.

The Commission held that this is not a case where an employee violated a
specific instruction or a well defined work rule. There was no work rule
governing the operation on the pipes. That is the whole answer to the
unpreventable misconduct defense: the defense runs on a rule that was broken,
and the gap here was that no rule reached the task.

The Commission distinguished F.H. Sparks of Maryland on the same axis. In
Sparks the supervisor created or joined the violative conduct, so the question was whether his own actions contravened a uniformly and effectively enforced work rule. Here nobody contended Barnes departed from the safety program, so his constructive knowledge is imputed without that inquiry.

It also declined to resolve whether Smoliga, the 29-year lineman who the
compliance officer said called himself the "man in charge" and who denied
saying it, was a supervisor. It did not need to. But it added a pointed
observation: if in fact nobody at the site was responsible for seeing that
safety precautions were observed, that made it all the more important for Barnes to anticipate the unusual hazards and give instructions before he left.

Affirmed.

Two notes on the record. In a footnote the Commission expressed doubt that what Paciorek received was really a reprimand, quoting Barnes ("he was talked to and explained the situation") and Paciorek ("I was told that I was in the wrong and instructed what I should have done"), and assumed a mild reprimand anyway for purposes of decision.

The released text carries the usual defects, reproduced as released: "telephone junction boy" for box, "this is notice case" where the sense requires "this is not a case," and a Sixth Circuit petition docketed as "No. 37-3561," which cannot be right for a 1977 filing.

A dating conflict. The decision's caption reads January 17, 1979. The OSHRC decision-search index row for this docket gives January 18, 1979. The frontmatter date above follows the caption, because the decision itself is the record of what it did and when, and the index row is the side that needs correcting. The index value is noted here so a reader who arrives from the decision-search listing can see why the two disagree.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.28(a), personal protective equipment
  in construction
• Outcome: Affirmed. The judge's decision stands.
• Key point: An unpreventable employee misconduct defense needs a work rule
  that reached the task. A thorough general safety program and training in
  safety belt use do not supply one for an operation the employer never wrote a rule about. And a foreman who knows a job is unusual, knows the normal equipment will not work for it, and leaves without giving instructions has given the employer constructive knowledge of what happens next.
• Related: Compare Southwestern Bell Telephone Co. (No. 14761), decided
  seven weeks earlier, where cable splicing in a manhole was held not to be
  construction work and the telecommunications standards governed. The two are consistent: that case turned on splicing in an existing manhole, this one on installing cable in a building under construction. In 14761 the Commission expressly declined to review the construction question because the Secretary had not excepted, so this is the Commission reaching it.

Full text (OSHRC public release)

Docket No. 15841

SOUTHWESTERN BELL TELEPHONE CO.
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OSHRC Docket No. 15841

Occupational Safety and Health Review Commission

January 17, 1979

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Before CLEARY, Chairman; BARNAKO, and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Nancy L. Coats, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

Judge Erwin L. Stuller found that Respondent (Southwestern) violated the construction safety standard at 29 C.F.R. 1926.28(a). n1 The issues before us are whether the Judge erred in (1) concluding that the cited construction standard applied to Southwestern's work, and (2) rejecting Southwestern's argument that it should not be found in violation because it could not have foreseen the incident giving rise to the citation.
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We affirm the Judge's decision.

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n1 The standard provides:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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Southwestern is a public telephone utility company.
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The alleged violation occurred in a building under construction in Oklahoma City, where Southwestern's employees were installing telecommunications cable in order to provide telephone service for the building.
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At the time the worksite was inspected by an OSHA compliance officer, one of Southwestern's employees, Paciorek, was kneeling on utility pipes approximately 16 feet above a concrete floor, pulling cable through a telephone junction boy.
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He was straddling the center of three pipes, which were 8 to 12 inches apart and spanned a total distance of 4 to 5 feet.
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Paciorek was not wearing a safety belt, nor was any other means of protecting him against falling to the floor being used.
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Southwestern had provided Paciorek with a safety belt, but it was in the company truck when this incident occurred.

Paciorek had worked for Southwestern as a lineman for two and a half years and had been working at this particular site for three and a half weeks.
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On this job, when it had previously been necessary to work above the floor, the employees had stood on a portable lift with guardrails.
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The lift could not, however, be used for this particular task because the presence of the pipes would [*3]
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interfere with its use.
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Therefore, Paciorek ascended a ladder to a cross beam, "scooted" across the beam to the pipes, and moved into the position on the pipes where he was observed by the compliance officer.

The only other Southwestern employee on the site at the time of the inspection was Smoliga, a lineman with 29 years experience with Southwestern.
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The compliance officer testified that, at the time of the inspection, Smoliga had said that, although he was not a foreman or leadman, he was the "man in charge." Smoliga denied making this statement, and Barnes, Southwestern's construction foreman, testified that he had not designated either Paciorek or Smoliga to be in charge when he left.

Barnes had left the building shortly before the inspection because the work was virtually completed, the only remaining cable to be installed on the entire job being the piece Paciorek was installing at the time of the inspection, and in order to keep another appointment.
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Barnes did not discuss with Paciorek and Smoliga how the remainder of the work should be carried out.
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He knew, however, that this part of the job was unusual because of the location of the junction box above the pipes. Barnes [*4]
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decided that it would not be practical to use the lift, and knew that the position of the pipes precluded the use of a ladder as a surface from which to perform the work.

A lineman, when first hired by Southwestern, is given five weeks of training before he is assigned to work in the field.
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This training includes safety instruction.
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After he is sent out to work, the lineman is given further on-the-job training by his supervisor before being permitted to work alone.
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Subsequently, frequent safety meetings are held, and each lineman is given a quarterly safety quiz by his supervisor. Paciorek underwent this training program, supervised by Barnes.
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He was specifically instructed in the use of a safety belt. After this incident, Paciorek discussed the matter with his supervisors, and agreed he had violated the company's rules.
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He was mildly reprimanded for his action. n2

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n2 Both Paciorek and Barnes testified that a reprimand had been given.
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In describing the reprimand, however, Barnes stated, "he was talked to and explained the situation." Paciorek testified that, "I was told that I was in the wrong and instructed what I should have done." We have some doubt whether this conversation is accurately described as a "reprimand" but, for purposes of this decision, we conclude that a mild reprimand was given.

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Southwestern argues that it was improperly cited under a construction safety standard because of the existence of another standard addressing the hazard which is more specifically applicable to telecommunications work, n3 and that it should not be found in violation because Paciorek's failure to wear his safety belt was contrary to his training, and was therefore unforeseeable.
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In making the latter argument, Southwestern points to the fact that Paciorek had received training in the use of a safety belt, that a belt was available for his use, that no supervisor knew of or participated in the incident, and that Paciorek was reprimanded for failing to use his safety belt.

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n3 Southwestern refers to 29 C.F.R. 1910.268(e), which applies to telecommunications work and provides:

Tools and personal protective equipment-Generally.

Personal protective equipment, protective devices and special tools needed for the work of employees shall be provided and the employer shall ensure that they are used by employees.
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Before each day's use the employer shall ensure that these personal protective devices, tools, and equipment are carefully inspected by a competent person to ascertain they are in good condition.

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We reject both arguments.
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Concerning the applicability of the cited standard, we have held that an employer installing telephone lines in a building under construction is engaged in construction work. New England Telephone & Telegraph Co., 78 OSAHRC 40/B9, 4 BNA OSHC 1838, 1976-77 CCH OSHD para. 21,267 (No. 9627, 1976), affirmed following reconsideration on another issue, 78 OSAHRC 40/A13, 6 BNA OSHC 1613, 1978 CCH OSHD para. 22,727 (1978), pet. for review filed, No. 78-1266 (1st Cir., June 30, 1978).
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Thus, the construction standards apply to such work unless more specific standards are applicable.
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29 C.F.R. 1910.5(c).
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The telecommunications standards, however, by their terms do not apply to construction work. n4 Accordingly, in the absence of a more specific applicable standard, Southwestern was properly cited under 1926.28(a).

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n4 29 C.F.R. 1910.268(a)(2) provides that "these (telecommunication) standards do not apply: (1) to construction work, as defined in 1910.12. . . ."

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In its second argument Southwestern asserts that it neither knew nor could have known of the violative condition.
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Although Southwestern did not have actual knowledge of the violative condition, the evidence establishes that Southwestern could have known of the violative condition with the exercise of reasonable diligence.
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In exercising reasonable diligence an employer has the duty to anticipate the hazards to which its employees may be exposed and to take the steps necessary to prevent such exposure.
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Martin Painting and Coating Co., 77 OSAHRC 181/E8, 5 BNA OSHC 1946, 1977-78 CCH OSHD para. 22,239 (No. 15923, 1977), pet. for review filed, No. 37-3561 (6th Cir., Nov. 21, 1977); Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1976-77 CCH OSHD para. 21,607 (No. 9118, 1977).
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Barnes knew of the procedure the linemen would have to follow installing the last section of cable, and knew the situation had not been previously encountered on this job.
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He also knew that the lift which had previously been used whenever it was necessary to work at unsafe heights above the floor, could not be used and the position
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of the pipes precluded use of a ladder. Knowing all this, Barnes could reasonably have anticipated that Paciorek would work on the pipes. He also could reasonably anticipate that Paciorek might not use a safety belt, since the safety belt was in a company truck and not on the premises and since use of a safety belt was not needed during the preceding three and a half week period that this work was being performed.
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We conclude that Barnes had constructive knowledge in view of his failure to take any steps to ascertain the hazards peculiar to the operation and to provide the requisite safety instructions.
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Springfield Steel Erectors, 78 OSAHRC 7/A4, 6 BNA OSHC 1313 1977-78 CCH OSHD para. 22,498 (No. 15388, 1978).
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As a supervisor, Barnes' knowledge is imputable to Southwestern. n5

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n5 In F.H. Sparks of Maryland, Inc., 78 OSAHRC 13/C12, 6 BNA OSHC 1356, 1977-78 CCH OSHD para. 22,543 (Nos. 15472 & 15760, 1978), the Commission held that an employer will be held responsible for violations either created by or within the actual or constructive knowledge of a supervisor unless the employer successfully defends by showing that it took all feasible precautions to prevent the occurrence of the violation.
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In Sparks the supervisor created or at least participated in the violative conduct.
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The question was whether his actions contravened a uniformly and effectively enforced workrule. Here, however, Southwestern does not contend, and there is no evidence tending to establish, that Barnes in any manner deviated from its safety program.
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Consequently, Barnes' constructive knowledge is properly imputable to Southwestern.

Southwestern also argues that Paciorek's failure to use a safety belt was unpreventable employee misconduct.
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It states that his conduct was contrary to its safety rules.
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But this is notice case where an employee violated a specific instruction or well defined workrule. See generally Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 BNA OSHC 1681, 1976-77 CCH OSHD para. 21,098 (No. 4105, 1976).
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There was no workrule governing the operation on the pipes; therefore Southwestern's assertion that Paciorek's actions were unpreventable cannot be sustained.

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The Secretary also contends that Smoliga was a supervisor who had actual knowledge of the incident, and that Smoliga's knowledge is imputable to Southwestern.
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Southwestern contends that Smoliga was not a supervisor. Inasmuch as we find that Southwestern had the requisite knowledge for the reasons stated above, we need not resolve the conflict in testimony concerning Smoliga's status.
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We do note, however, that if neither Smoliga nor anybody else at the site was responsible on behalf of the company to see that safety precautions were observed, it was all the more important for Barnes to anticipate, before he left, what unusual hazards might arise, and to give adequate safety instructions regarding those hazards.

The Judge's decision is affirmed.
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