Eustis Cable Enterprises, Ltd.

Read the official release (oshrc.gov)

Plain-English summary

Eustis Cable Enterprises was a communications contractor installing fiberoptic cable in rural upstate New York. A foreman died while traversing a support strand about twenty feet above the ground to repair a malfunctioning lasher at an offroad worksite. The judge found that Eustis failed to ensure that the crew had proper training for midspan work and failed to provide or ensure the use of tools and protective equipment needed to perform that work safely. The judge rejected the company's unpreventable employee misconduct defense because its rules and instructions were too general, its training was inadequate, and it did not show effective inspection or enforcement. Both violations were affirmed as serious, with a $12,145 penalty for each item and a total penalty of $24,290.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.268(c), 1910.268(e)
• Outcome: Two serious violations were affirmed, with penalties of $12,145 each.
• Key point: A telecommunications employer must prepare crews for foreseeable midspan work at sites where a bucket truck cannot be used, including proper training and the tools and protective equipment needed to work safely.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457

MARTIN J. WALSH, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR ,

Complainant,

v.

OSHRC DOCKET NO.
20-1006

EUSTIS CABLE
ENTERPRISES ,
LTD,

Respondent.

APPEARANCES:     

Allison L. Bowles , Esquire

Department of Labor, Office of the Solicitor,
New York, New York

For the Secretary

Pietro Lynn , Esquire

Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, Vermont

For Respondent

BEFORE:

The Honorable
Dennis L. Phillips

U.S.
Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the Commission) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§   659(c) (the Act).

I. FACTs

A.
Background

Eustis Cable Enterprises LTD ( ECE )
is a communications contractor
with its corporate office at Brookfield, Vermont
that provides manpower and equipment for the construction of communications systems.

( Tr. 443;
Fact Stipulation (Stip.) 1
No. 6 ) .

At issue in this case is ECE’s work as a
prime
contractor to Armstrong Telecommunications, Inc. (Armstrong).

( Tr. 488;
Stip. No s.
7 - 9 ; Ex s . 46 at
3
(Resp. to Interrog.
Nos.
1-2 ),
49-50 ) .

Starting in August 201 8 , Armstrong hired ECE to install fiberoptic
(also referred to as fiber)
cable pursuant to a series of location-specific contracts within a large project to expand broadband access throughout rural, upstate New York. 2

( Tr.
97,
101,
339-40 , 614 ; Stip. Nos. 7-11 ;
Ex. 46
at 3
(Resp. to Interrog.
Nos.
2-3) ) .

During October 2019 to January 2020 ,
ECE was performing work in and around Alfred, New York , generally replacing strand and fiber . 3

Strand is a support that holds the fiber for lashing. The fiberoptic is
fiber glass and the strand is needed to support the fiber
in order
for
it
to stay up on the pole.
( Tr.
98 -10 1 ,
115,
340; Stip. No. 7 ;
Ex. 49 ) .

During
this
time
period , ECE ran its operations out of the Belmont Field Office under the direction of (former) Project Manager (PM) Timothy Becker. 4

PM Becker worked on one project, the Armstrong Telephone, Western New York project, starting in 2017 during the four years he worked at ECE.

( Tr.
98-99,
338-39,
342-43 , 394 ;
Stip. Nos. 12-13 ) .

He supervised at least
twenty
people out of the Belmont field office. (Tr. 347).

On
Monday,
January 13, 2020, OSHA learned that a fatality had occurred at
208
Fisher Road , Andover, New York
(Incident Worksite),
one of ECE’s worksites under
PM
Becker’s supervision.

PM Becker was supervised by Jamie Dodd. 5
(Tr.
146,
192,
603;
Ex. I at 0336 ).

Foreman
AJ
died by asphyxiation when the tool
line
belt he was wearing
rose up
his body and suffocated him
as he traversed the strand to fix a midspan equipment malfunction
of a lasher .

( Tr. 99 , 109 , 111 ;
Stip. No s .
24- 25;
Ex s .
44,
I
at
336-347 , HH at 726, 737 ) .

The Occupational Safety and Health
Administration (OSHA)
assigned Compliance Safety and Health Officer ( CSHO or
CO) Michael Willibey to investigate the fatality.

CO Willibey was employed at OSHA for
over 18 years
where he conducted about 1,400 inspections that included about 50 to 60 inspections that involved a fat a lity . Before that, he served in the Navy as a corpsman for nearly three years. Thereafter, he worked in construction as an engineering technician, foreman, construction superintendent, project manager and general manager. He holds professional certifications in construction, occupational safety and health for general industry, and emergency management.

(Tr.
600-0 3;
Ex. I at 336 ) . CO Willibey promptly met with
ECE’s Vice President (VP) of Operations
Andrew
Bauer at the Incident worksite on January 14, 2020. He also visited the Incident
W orksite on January 15 and January 16, 2020, when he watched the lasher’s recove r y from the strand. (Tr. 604-05 , 655).

1. Aerial Line Work

Aerial line work involves work on utility poles. It includes both creating a support system,
i.e. , strand, and placing fiberoptic cable, and then, lashing the two together. (Tr. 92-93, 100, 114-15). Aerial line crews perform work in the telecommunications space, which is typically located about
twenty
feet off the ground. It includes both a support strand and fiberoptic cable. (Tr. 102-05, 114-15, 382-83; Exs.
3, 35). There are numerous dangers associated with aerial line work, including electrocution, traffic, falls, falling equipment, and equipment malfunctions. (Tr. 482-83). A typical aerial line crew at ECE consists of a foreman/lineman, a
lineman
and a ground hand. (Tr. 93, 99).

2 . Lashing Work

The purpose of lashing work is to connect the fiberoptic cable to the support strand.

(Tr. 114-15).

During lashing activities, the role of the lineman is to ascend to the telecommunications space, which they do either via the boom of a bucket truck or by climbing utility poles.

(Tr. 93-94) . Typically, lashing work starts when the lineman attaches a
50-to-70-pound
lasher or lasher
machine to the support strand, along with a rope
and/or mule tape
(also referred to as
“ muletape ”, “mule string,” or “mule line” )
that hangs from the lasher down to the ground. 6

Lashing work is done w hen
the
lasher runs along the strand and wraps the strand and fiberoptic cable together with “lashing wire”

( Tr. 112-15 , 211;
Exs. 35,
46 at 4-5 (Resp. to
Interrog. No. 11) ) .

The lasher has two rubber wheels that sit on the strand that move when the lasher is pulled. (Tr.
112 -16, 212-1 5 , 222 , 224 ; Exs. 7, 35, 62 at 14) .

During lashing activities, the role of the ground
hand
is to pull the lasher
sending it
from pole to pole and handle materials in case the linemen need
materials
on the pole.

(Tr. 93-94 , 117 ) . Once the lasher is set up, the ground hand pulls the rope from one pole to the next from below, careful to keep tension on the rope so that the lasher does not flip off the line. 7

( Tr. 92-93,
224-25, 367).
As the ground hand pulls the rope, the lashing machine moves along the strand, wrapping the fiberoptic cable and the support strand together with lashing wire.

( Tr. 114-15 , 385 ;
Ex. 46 at 4-5 (Resp. to Interrog.
No.
11)).
At each subsequent pole, a lineman manually transfers the lasher from one side of the pole to the other and set s the lasher
up again.

(Tr. 106).

1.
The Armstrong Project & Alfred Job

ECE did not complete a job hazard assessment form 8
for the Armstrong Project, the Alfred job ,
or the Incident Worksite, despite the requirement that it do so in its
Eustis Cable Enterprises, LTD
Safety Manual
at
E xhibit C .

(Tr.
432-33,
441-4 3 ;
Ex s .
46 at 7-8,
C at 0110 at Part C).

ECE did not create a site-specific safety plan for its work on the Armstrong project, including the Alfred job.

(Ex. 46 at 7 (Resp. to Interrog.
No.
6) ) .

During the Armstrong Project, including the Alfred job, about 50% of the work ECE’s aerial line crews performed involved placing the support strand
and
about 50% of the work ECE’s aerial line crews performed involved placing
the fiberoptic cable on the support strand, including lashing the fiber to the strand. 9

(Tr. 100) . On the Armstrong Project, including the Alfred job, about 50% of the work occurred off-road in easements, which could include work in fields or up and down mountainsides.

(Tr. 118-19).

There are no discipline records in the record issued by
PM B ecker on the Armstrong Project other than one he issued to
AJ , when, a week after he was hired, he got a police ticket for failing to stop at a DOT inspection site. 10

( Tr. 384;
Ex. 56 at 10-12) . The only other discipline record in
evidence
from the Armstrong Project was issued to a member of a splicing crew
for not wearing a vest or hard hat
on August 19, 2019 .

This was issued
by Brian Carlson, who supervised
ECE’s
splicing crews.

(Tr. 573-74 ;
Ex. 54
at 9 ).

PM
B ecker reported to
VP
Bauer.

Bauer became VP of Operations in 2017 , and in that
capacity,
he oversees safety . He said “[w]e put a lot of emphasis on having a very robust, good safety program.” He has worked at ECE since 2002. (Tr. 395 , 430 , 481 -85 ). PM
Becker was supposed to fill out field inspection reports weekly, but he was “lax” about it.

(Tr.
425-26).

T here is no record of any inspection of the Crew
that included Foreman AJ ,
[redacted]
and
[redacted]
(together “the Crew”)
during
AJ ’s employment with ECE.

( Tr. 425-26, 597 ; Stip. No. 15 ) . CO Willibey testified that he did not believe ECE’s inspection program “raised to the level required for the work that they were doing.” (Tr. 630-31).

B. The Crew’s Assignment on January 13, 2020

On January 13, 2020,
PM Becker assigned the
Crew
to lash,
i.e.
connect
or wrap , fiber -
optic cable to an existing support strand 11
between various utility poles. 12

( Stip .
No s . 14 -15 ; Ex. 46 at 4-5 (Resp. to Interrog.
No.
11) ) .

Fiberoptic cable is made of glass
and needs some “form of support to stay up on the pole” line.

( Tr. 115 ) .

The strand
provides that support.

( Id . )

This work
generally occurred here
about
twenty
feet off the ground.

( Tr.
102-05,
382-83; Stip. No. 21 ; Ex. 3 ) .

1. The Crew

By January 13, 2020, each of the
three C rew
members was still relatively new to ECE.

PM Becker hired
AJ
as a foreman
on October 21, 2 019. 13

( Tr.
99, 348,
352, 99 ;
Stip. No. 2 4 ). H e hired
[redacted]
around the same time.

( Tr. 178 ;
Ex. S at 440).

[redacted]
had joined ECE a few weeks prior.

( Tr.
3 53 ) .

Foreman
AJ ,
[redacted]
and
Foreman
Henry
Cole 14
started their telecommunications careers in Jamaica.

(Tr.
91-92,
140-41,
294-95 ; Ex. 56 at 2) .
[redacted]
worked in the telecommunications industry in Jamaica from about 1994 to
about
1999, 15
again from 2003 to 2008
where he worked at his broth e r’s company,
[redacted] ’s Cable,
an d then not again until 2018, when he migrated to the United States and
worked at
Crammer and O’Connor (Crammer) ,
a
U.S. telecommunications company and
sub-contractor to ECE , that did the same lineman work as ECE .

Cole introduced
[redacted]
to Crammer. [redacted]
worked at Crammer for about six to seven months.

AJ
worked for Crammer from an unknown date in 2018 to at least August 15, 2019.

( Tr. 534 , 566-68 ;
Ex s . 56 at
1,
3 ,
57).

On August 15, 2019,
AJ
was involved in an incident while working for Crammer in an easement . T he incident resulted in a loss of power to about 75 customers for 30 minutes and required the power company’s assistance.

(Tr. 422-23 , 545-47 ; Ex. 57).

There
was
no documentation about the August 15,
2019
incident ,
or any other discipline records ,
in ECE’s
P ersonnel
F ile for
AJ .

(Tr. 531 , 567-68 ;
Ex.
46 at 10, R eq.
F or
P roduc.
No s . 24,
56). ECE hired
AJ
without any proof that
AJ
had had
any
OSHA-10 or OSHA-30 training.

(Tr. 447 , 564-66 ; Ex. 56).

AJ
attended ECE’s new hire
o rientation on October 26, 2019. (Ex. S at 0435).

AJ
scored poorly on the driving test at orientation and had to retake the exam inat i on .

(Tr. 425) . Within a week of his hiring by ECE,
AJ
received a
New York State
police ticket for his failure to stop at a DOT inspection site.

(Tr. 424 -25 , 536-39 ;
Stip. 24 ;
Ex. 56 at 10-12).

Foreman
Cole told PM Becker that
AJ
was capable of running his own crew.

(Tr. 140) .
[redacted]

PM Becker assigned
AJ ,
[redacted]
and
[redacted]
to be an “aerial line crew,….” (Tr. 190, 353). He determined that
AJ
would lead the Crew as
F oreman. ( Tr.
352). AJ
also worked as a lineman
in the Crew , as did
[redacted] . ( Tr.
189-90). [redacted]
was the Crew’s ground hand. 16 (Tr. 93-94, 115-18, 189-91).

2. Start of the Day:

Belmont Field Office

The Crew met at the
Belmont
Field Office .

( Stip. No. 14 ) .

The Crew did not have a conversation about the day’s assignment.

( Tr. 193-94 ) .

PM Becker’s
assignment
to the Crew
was detailed on a design blueprint (hereinafter “print”) of the pole line, with relevant information related thereto.

( Tr. 194-95 ; Ex. 58).

The Crew’s scope of work involved several worksites on a section of the pole line that ran both along the roadway and offroad, or through ,
easements .

( Tr. 118;
Ex s . 46 at 4-5 (Resp. to Interrog.
Nos.
6, 12) , 58) .

Foreman Cole testified that a Crew’s Foreman was responsible for making sure that the Crew had the equipment that it needed for the day’s job. (Tr. 95-96). PM Becker testified that the equipment needed to do the work at the Incident
W orksite included
a
lasher, rope,
and
belt, and
some
hooks. (Tr. 409).

The work
began offroad in a wooded easement on the south side of Fisher Road and then ran roadside along Fisher Road, before ending in another easement on the north side of Fisher Road .

The Incident
W orksite was about 20 to 25 miles away from the Belmont field office. ( Tr. 397-98;
Ex s . 46 at 5 (Resp. to Interrog.
No.
12) ,
58 at 2-3 ) .

About h alf of the poles on the day’s print were not roadside accessible, including the
poles at the
Incident Worksite.

( Ex. 58 ) .

The Crew had been to the Incident Worksite before
December 25, 2019
and was familiar with the terrain.

( Ex. 6 1
at
10 ) .

T he Crew knew that the pole line crossed over a lake 17
and
understood
that the lake would impact how it could run the lashing machine. 18

( Tr. 22 3 -25 ) . Before leaving the Field Office, the Crew “got the truck stocked up” with tools.

( Ex. 6 1
at 7-8 ) .

The Crew’s
truck was brand new; just the day before,
AJ
drove to ECE headquarters in Vermont and exchanged the Crew’s previous truck for a new one.

( Tr. 207 , 356 ) .

Neither
truck was equipped with a ladder and the Crew did not bring one with them on January 13, 2020. 19

( Tr. 20 8-0 9, 256 ; Stip. No. 1) .

T he equipment on the
new
truck included a lashing machine
which had neither a top lock or a back gate 20 , lashing wire ,
and three layup sticks. 21

(Tr. 211-12, 222-23, 236; Stip. Nos. 2-3;
Ex. 35 ) .

The two linemen ,
[redacted]
and
Foreman
AJ ,
also had pole climbing equipment.

( Tr. 212 ;
Ex s . 44 , HH
at 737 ).

C. The Incident Worksite

To reach the first worksite on the print, the Incident Worksite, the Crew drove about 30 minutes along back country roads.

( Tr.
282-84,
613-14 ) .

The Crew parked the truck in a farmer’s driveway
off of
Fisher Road.

(T r.
210-11 ; Exs .
5 8A
at
“E” , 6 1
at 10) .

The
Crew
carried the lasher and their tool belts from the truck for “several hundred yards” through a field and into the wooded area ,
where
the
majority of
the
relevant
pole line was located.

( Tr. 211 , 605-08;
Exs.
32,
37-41,
I at 0335 ). T he
Crew’s work
at the Incident Worksite
included
three
utility poles,
including two
on
the east
side of the lake.

( Tr.
194- 201 ;
Ex. 58A
(Poles “A- C ”)) .

T he span
across the lake
was one of the longest on the day’s print ,
at 407 feet.

( Ex. 58 ) .

1. T he East Side of the Lake:

Poles A and B

From the road,
the Crew
proceeded
directly to the first pole , Pole A,
on the print ,
without doing a “walk - through” of the
Incident
Worksite
“to identify
sources of
hazards” . 22 (Tr. 211;
Ex s .
58A at “A”,
C at
0110 ) .

At that point, the crewmembers split up.

( Tr.
212-13 , 608-09 ; Ex s .
58A,
64 at
¶
2 23 ) .

While
[redacted]
climbed Pole A with the lasher,
[redacted]
stayed on the ground beside Pole A and
AJ
walked over to and climbed up Pole B.

( Tr.
213 , 609 ; Ex s .
32,
58A at “A”, “B” ) .

Eventually,
[redacted]
got the lasher up to the strand and prepared it to send to Pole B.

( Ex s .
58A at “B”,
64 at ¶ 2 ) .

[redacted]
pulled the lasher over to Pole B.

( Tr.
212, 215 ; Ex. 58A at “B” ) .

Once
[redacted]
reached Pole B,
AJ , already atop the pole, manually took the lasher from one side of the pole to the other and prepared the lasher for its journey to Pole C on the other side of the lake.

( Tr.
215-1 7 , 609 ; Ex s .
29,
58A at “B”, “C” ) .

The Crew did not have a boat for the crossing and the lake was “too far around to pull the lasher” from either side of the lake.

( Tr. 220-21, 225 ; Ex. 58A at “D” ) .

Instead, the Crew planned to regroup on the western side of the lake and pull the lasher across
the lake
from there.

( Tr. 221 ; Ex. 58A ) .

To that end,
AJ
took two extra steps to ready the lasher to cross the lake. ( Tr.
2 22- 24 ; Ex. 58A at “D” ) .

First,
AJ
attached mule tape
to the lasher .

( Tr. 226-27 ,
232 , 555-56 ; Ex. 16 [white line
hanging below the lasher
is mule tape] ) .

On January 13, 2020,
the mule tape ran from the lasher on the east side of the lake, into and across the lake, onto the western shore of the lake, and across the land to a place where the Crew had attached it to
a
tree trunk.

( Tr. 227-28 ;
Exs. 16, 18-20 , 58A at “D” ) .

The photograph at
E xhibit 16 shows cable to the right of the mule
tape. (Tr. 226; Ex. 16).

Second,
AJ
attached two balls of lashing wire to the front of the lasher
while he was on Pole B .

( Tr. 223 ; Ex. 35) .

He did this because the Crew was aware that, due to the distance and the lack of tension under the lasher as it made its way across the lake, the lasher may
t ip over
on its side .

( Tr.
113,
223-24 ,
36 6-6 7 ; Ex. 35).

Attaching balls of lashing wire to the machine was an attempt, albeit an inadequate one, to weigh the lasher down and keep it stable for the lake crossing.

( Tr. 222-25; Ex. 6 1
at 18-19 ) .

Once
AJ
completed his work atop
P ole B, he descended .

( Tr. 229 ; Ex. 58 at “B” ).

[redacted]
walked the lasher as close to the edge of the east side of the lake as he could.

(Tr.
217 -1 9 , 229 ; Ex. 58A at “D” ) .

2 . Lasher Malfunction Between Poles B to C

During lashing work, “[l]ashers frequently become disabled, entangled, stuck or otherwise requiring service at a working altitude, ”
including in the space between two poles, or midspan.

“This is a daily [sometimes several times in a day] occurrence …”
“ECE does not track stuck lashers, it is a frequent item that is part of typical routine construction activities.”

( Tr. 119-20;
Ex. 46 at 5 -6
(Resp. to Interrog.
Nos.
14, 17)
at 11 -12
(Resp. to RFP
No.
34 )) .

How to handle a lasher malfunction “var[ies] with the circumstances  . . .  . ”

( Ex. 46 (Resp. to Interrog.
No.
14) ) .
ECE’s safety program does not include any instructions on midspan work generally or on lasher malfunction specifically.

( Ex s . 46 (Resp. to R eq.
F or
P roduc.
Nos.
14, 30 ,
34) , 56,
C ) .

When a stuck or flipped lasher occurs
midspan where it is
accessible from the road, an aerial line crew uses its bucket truck to access the span and address the issue.

(Tr. 120) .

Specifically, “the individual would operate the bucket to the appropriate working height, address the issue and either remove the lasher from the line or continue lashing.”

( Ex. 46 at 6 (Resp. to Interrog.
No.
18) ) . I f the lasher malfunctions off-road, the bucket truck is not a viable option to address the
problem.

(Tr.
1 19-121,
209,
364-65, 413).

Instead, Foreman Cole testified that he would “[p]ull it [lasher] back to the pole or use a layup stick to push it over.” (Tr. 120).

The
C rew
eventually met again on the west side of the lake . [redacted]
arrived first.

From that side of the lake,
[redacted]
planned to pull the lasher with the mule tape.

( Tr. 230; Ex s .
58A at “D”,
64 at ¶¶ 4-8 ) .

But when he got to the shore, he unexpectedly found that about five feet of the mule tape was frozen under ice.

(Tr. 231-32;
Ex s . 6 1
at 17 ;
64 at
¶ 5 ) .

Once
[redacted]
had joined
[redacted]
on the west side of the lake,
they
worked to free the mule tape from the ice , eventually freeing it.

In so doing, however, “it overturned the lasher”
and it stopped moving on the mule
tape in the direction toward Messrs.
[redacted]
and
[redacted] .
( Tr. 231-3 3 , 300 -02 ;
Ex s . 6 1
at 17-18 , 64 at
¶¶ 5-6 , I at 0340 ) .

By the time
AJ
arrived at the west side of the lake,
[redacted]
and
[redacted]
knew there was a problem with the lasher.

(Tr. 233 -35 ;
Ex s .
58A at “D”,
64
at
¶¶
7 -8 ).

The Crew attempted to pull the lasher across the lake a second time to no avail.

( Ex. 64
at
¶ 8 ) .

When it was clear the lasher was stuck,
Messrs.
[redacted]
and
AJ
went back to the east side of the lake
with the truck .

( Tr. 233-35; Ex s . 16,
58A at “D”,
64
at
¶¶
10 -11 ) . [redacted]
stayed
on the west side
of the lake .

( Tr. 233-34 ; Ex. 58A at “D” ) .

Before
[redacted]
and
AJ
left,
[redacted]
suggested they
go
get the layup sticks off the truck
and try to see if they could
use them to right the lasher
“because a lot of the times you can just use the lap stick and
p ut it on, back on the line . ” 24

( Tr. 235 , 304-05 ; Ex. 58A at “E” ) .

3. T roubleshooting
   Efforts
   and
   Attempts
   to fix the Stuck Lasher

There are several options for reaching and repairing a lasher that has malfunctioned midspan without a bucket truck.

According to PM Becker, the “best way” to reach the appropriate working height in an easement, is to use “a ladder.”

( Tr. 413 ;
Ex s . 46 at 5 - 6 (Resp. to Interrog.
Nos.
13, 18); 53).
Sometimes layup sticks may be used to address a malfunctioning lasher.

( Tr.
119-20, 234-35, 364-65 ) . Sometimes you can just pull the lasher back to the pole and start over.

(Tr. 120,
146-47,
272; Ex. 53) . Another way to address lasher malfunction midspan is to lower the strand by loosening the clamp .

(Tr.
146-47,
312 -13,
330,
373-382 ;
Ex. 46 at 5, 12 (Resp. to Interrog.
No.
13, R eq. For
P roduc.
34).

Lowering the strand is the more time consuming and labor-intensive option.

(Tr. 615).

During his 25 years with ECE,
F oreman Cole has never lowered the strand to address a stuck lasher.

(Tr. 123).

In his
short
time with ECE,
[redacted]
has never lowered the strand to fix a stuck lasher.

(Tr. 330). O n January 14, 2020,
[redacted]
told Bauer that he would have taken the strand out of the clamp and let it go.

But ,
Bauer
later
rejected that suggestion as the appropriate course of action.

(Ex. 6 1
at 29).

Another way that linemen can, and do, access difficult-to-reach equipment midspan is by traversing the strand.

( Tr. 254,
Ex s .
55,
I at 338-43).

(a)
The Crew
should and
could have used
a ladder
to work on the lasher if a ladder was available at the Incident
W orksite .

Back on the east side of the lake,
AJ
“discovered that the lashing machine was stuck because it had flipped upside down.” 25

( Ex. I at 340 ) .

The Crew made some initial efforts to
reach the lasher, both from the ground and from a working altitude.

[redacted]
testified that the Crew did not think about using a ladder. [redacted]
did not “know if it [a ladder] would reach up there either.” There was no ladder on the truck. The Crew would have to call PM Becker and request a ladder be brought over to the
Incident W orksite. 26
[redacted]
said
“[ i ] t’s hard to put a ladder there” ,
on a slope and
in the bush away from the road. 27

But, CO Willibey testified that two workers could have carried an extension ladder from Fisher Road to Pole B. (Tr. 636 ; Ex. 58A at “B”, “E” ). PM Becker testified that “[w]hen a lasher become s
stuck, our employees w e re suppose d
to use a ladder to reach the
lasher if possible.” (Tr. 374).

VP Bauer investigated the Worksite Incident for ECE. He visited the
I ncident
W orksite and interviewed management team members and Crew members
who worked at the Incident
W orksite. 28 (Tr. 558-60). VP Bauer testified that he thought that use of a ladder at the Incident
W orksite “might have been an option” and was “a safe alternative.” (Tr. 461-63). He also admitted to saying at his deposition that “I believe it could have been safe to use a
[typical
fiberglass extension]
ladder
[with hooks] , absolutely.” VP
Bauer admitted that such a ladder was a common tool in ECE’s line of work. (Tr.
463-64 , 496-97 ). He said the Crew would have
to
first get the ladder’s hooks over the top of the line and let the ladder sink back into the line. (Tr. 464-65) .

The Court finds that
the Crew could have used a ladder
to work on the lasher if a ladder was available at the Incident
W orksite. (Tr. 327-29).

(b) If the use of a ladder is not possible, ECE employees were supposed to cut and lower the cable
strand.

PM
Becker testified
at trial
(also referred to as “hearing”)
that he had
signed an affidavit, which
he acknowledged as true and accurate ,
that when a lasher becomes
stuck
and a ladder will not reach the lasher em p loyees were supposed to cut and lower the steel
cable. Becker testified at trial that the employee would “put a
“ block and tackle ”
up on the pole and you’d att a ch the strand to it, and then you would cut the strand and lower it down.” PM Becker also said a “chain hoist” would be equally useful. (Tr. 375 , 380 ). PM Becker
said ECE’s “Crews were instructed to use those proper and safe methods
[ ladder use and cut and lower cable
strand ]
to reach a lasher.” (Tr. 374 -75 ).

(c)    Layup Sticks:

from the Ground and from a Tree

Foreman Cole testified that the use of layup sticks was the best way to flip over a lasher that has flipped over and gotten stuck. (Tr. 146). [redacted]
said the easiest way to fix the lasher “was just to pull back the [lasher] machine if we can use the lap stick and get it [the lasher] up.” (Tr. 306, 311-12, 317 , 662; Ex. JJ at 1 ). AJ
and
[redacted]
too k
[redacted] ’s
suggestion and
went to the
road
to get layup sticks
off the truck . 29

( Tr. 235;
Ex. 64 at ¶ 10 ) .

The Crew had three
layup sticks
on the truck . [redacted]
testified that each of the three layup sticks was
about
eight to ten
feet
long , but he was not sure . 30
(Tr. 236;
Ex. 6 1
at 23 ) . PM Becker testified that ECE’s layup sticks are either six-foot sections or three-foot sections in length. He said ECE normally put three six-foot sections and
o ne three-foot section on their trucks. 31
(Tr. 382). Both
[redacted]
and
AJ
tried to use the
pole
made up
of layup sticks to
“flip the lashing machine over but it
[ the
pole made up of three
layup stick s]
was too short.”

(Ex s .
61 at 24,
I at 0340).

[redacted]
said in his January 15,
2020
interview
that
the pole did not have
“enough length” .

( Ex .
64
at
¶ 11 ). [redacted]
testified that
AJ
probably needed another layup stick
for the pole
to fix the situation. On January 15, 2020,
[redacted]
told CO Wil l ibey that the la yup
stick they
had at the worksite “wasn’t long enough.” (Tr. 236; Ex. JJ at 1).

[redacted]
told Bauer on January 14,
2020
that
AJ
probably needed five sticks to get under the lasher. (Ex. 61 at 23).

AJ
was “barely able to touch the lasher” from the ground
using the three layup sticks .

( Ex. I at 340 ) .

Next,
[redacted]
climbed
almost
twenty
feet up an adjacent tree with the
three
layup sticks
to try to fix the lasher . 32 ( Ex s . 6 1
at 25 ,
64
at
¶ 12 ) .

But even “holding the very end” of the sticks,
[redacted]
could “barely control it” .

H e could “just get it onto the lasher but” could not fix it from the tree.

( Ex. 6 1
at 25 ) . [redacted]
stated in a statement made under oath on March 6,
2020
that t he Crew tried , but failed,
to : 1)
free
the lasher with the poles taken from the truck
and 2) pull the lasher back.
He said that “It [the lasher] remained stuck in place.”

(Tr. 326).

(d)    T he Lasher
Would
Not
Pull Back

After efforts with the
three
layup sticks failed,
AJ
stood “underneath the lasher looking up” and determined that “the lasher would not pull
backwards,… .” to
P ole
B .

[redacted]
told VP Bauer on January 15,
2020
that
AJ
told both him and
[redacted]
“that the lasher would not pull
backwards.” (Tr. 237-38, 309;
Ex s .
58A at “B”,
61 at 26-27,
85 , 64 at
2 ).
[redacted] ,
back on the east
side of the
lake, suggested
to
AJ ,
who was already up on the strand halfway from Pole B to the lasher,
that
AJ
should “pull the lasher back to the Pole [Pole B].” 33
He said
AJ
heard his suggestion and
AJ
responded that
“ [i]t wouldn’t pull back.”

[redacted]
figured that
AJ
“was seeing something that [he] didn’t see when he was underneath it,” – for instance, that maybe the strand “was pinched . ”

( Ex. 6 1
at
27,
85-86 ) .

In any event, at that point the mule string attached to the lasher “was way out of reach …. ” 34

( Exs. 11, 16 ,
6 1
at 26 ) .

The Court finds that
AJ
tried to pull back the
lasher
before going out on the strand
but
was unable to do so. (Tr. 237-38, 309;
Ex s .
58A at “B”, 11, 16, 61 at 26-27,
85 -86, 64 at 2).

( e )
Trash
Can

Meanwhile,
[redacted]
found a residential trash
can
(or bin)
by a trailer
in the woods
at the lake’s west side
and brought
the
ca n
over to the east side of the lake.

( Tr. 238-39 ; Exs. 12, 26).

His thought was that the Crew could turn the trash
bin
upside-down underneath the lasher,
stand on top of the
trash can
and from there, use the
three
layup sticks to get the extra height to reach the lasher.

( Tr. 238- 40 ,
667 ; Exs. 12, 25-26,
64
at
¶ 16 , JJ at 2 ) .

The photograph at
E xhibit 25 shows the trash bin “pretty much probably underneath it [the lasher]” where
[redacted]
put it. 35 (Tr. 240-41; Ex. 25). B ut doing so was no longer necessary because by the time
[redacted]
arrived at the east side of the lake with the trash
bin ,
AJ
was already up on
Pole B
wearing
[redacted] ’s belt
and out on the
strand wire . 36

( Tr. 24 0-4 3 , 612 ;
Ex s .
44,
I at 340 , HH-726 ) .

(a) Traversing the Strand or so-called “Midspan Excursions”

Prior to the Incident, PM
B ecker had seen people go out on the strand.

(Tr. 413-14) .
[redacted]
too
had seen “guys” in Jamaica go out on the strand. 37
(Tr. 255 , 299, 658; Ex. JJ at 1, 8 ) . Prior to the Incident, VP Bauer had
also
heard of people going out on the strand.

(Tr. 474 ,
61 5-1 6) . [redacted]
also
had heard of people going out on the strand.

( Tr. 615-16,
Ex. 6 1
at 72).

The day after the Incident,
[redacted]
told VP Bauer that he personally did not want to traverse the strand because he knew his “physical limitations” and the work “is harder than it looks.”

(Ex s . 6 1
at 30 ,
34-35,
64
at
¶ 14).

He
told VP Bauer that
AJ , “acted like he had [traversed the strand] a million times….”

(Ex. 6 1
at 71).

On January 14, 2020,
[redacted]
told VP Bauer that he considers what
AJ
did to be a “last resort” option.

(Tr. 25 4-5 6).

VP Bauer considers what
AJ
did “old school cowboy cable stuff.”

(Tr. 474) . On Oct. 22, 2018, another ECE field employee went out on the strand
in Bethel
to reach equipment during work “off road”.

( Ex. 55 ) .

This employee walked on the strand like a tightrope.

(Tr. 470-74 ; Ex. 55 ).

ECE’s Employee Warning Notice for the offense of violating company policies stated that the Plan for Improvement was that the employee “will use a ladder when equipment is difficult to reach on off road poles.” (Ex. 55).

AJ
first “mentioned going out on to
the strand to fix the lasher” when
[redacted]
got down from the tree.

( Ex. 64
at
¶ 14 ) .

[redacted] , the only one of them who had his climbing belt at that moment 38 , told
AJ , “I cannot do that, I know it’s harder than it looks.”

( Tr. 242 ,
580-81 ;
Exs. 6 1
at 30, 64 .
at
¶¶ 14-15 ) .

[redacted]
gave
AJ
his tool belt and rope lanyard .

( Tr. 242 ,
612 ;
Ex s . 44 , HH-726 ). He “didn’t know to say [to
AJ ], ‘You’re not doing this right.’” (Ex. 6 1
at 31 ) .

[redacted]
had heard of guys who had done this technique, and
AJ
“acted like he had done it a million times,”
so
[redacted]
“thought [ AJ ] had done [it] before” too. ( Tr. 615;
Ex. 6 1
at
32 , 71-72 ) .

Once
AJ
got to the strand, he put
[redacted] ’s rope lanyard over the strand a single time and began “to shimm e y
[sic]
out on the line upside down.” 39

( Ex s .
6 1
at 35-36,
64
at
¶ 18 ) .

He was “wearing the belt  . . .
like you normally would climb” and “even put it … up under his butt” like “he was going to sit on the strand kind of in a seat.”

(Ex. 6 1
at 36 ) .

[redacted]
testified that
AJ
pulled himself out to the lasher with his hands. When
AJ
reached the lasher, some 35 feet from
P ole
B , he fixed it.

(Tr. 243 , 309-10 ;
Ex s .
I at 338,
6 1
at 39,
64
at
¶ 19 ).

“He
[ AJ ]
had one
hand on the strand, reached to the lasher” and flipped it
[the lasher]
back into place.

( Tr. 243;
Ex. 6 1
at 39 ) .

4. R escue
   Efforts
   Trying to Save AJ

At about 11: 2 0 a.m. 40 , January 13, 2020, o n his uphill journey back to Pole B,
AJ
began to struggle.

[redacted]
testified that
AJ
was about twenty feet from Pole B and was getting tired. ( Tr. 243-44 ; Exs. 64 at 1, I at
0338,
0340 ) .

(a) Improvisation Attempts
to Save
AJ

AJ
was “roughly halfway
[back]
to the pole
[Pole B]
when…the waist belt
begin
[sic] to slide up his back…” and eventually cinched up to his chest .

His body became perpendicular with the ground. From the ground,
Messrs.
[redacted]
and
[redacted]
spen t
a couple of minutes “trying to improvise”
way s
to help
AJ , who was about fifteen feet off the ground .

[redacted]
first
use d
the
three
layup stick s
with a hook at its end to put over the strand to
try to
balance
AJ
on the layup stick s
and allow him to
catch his breath. The layup stick s
w ere
about two inches thick.

AJ
wrapped his legs around the layup stick s , but m ore needed to be done. (Tr. 244-45 , 248 ;
Ex s .
61 at 49,
64
at
¶ 21 ,
I at
335,
338 ) .

[redacted]
then
climb ed
up a tree near
AJ
to
loosen
AJ ’ s
belt so
AJ
“could come down on the
[layup]
stick.” [redacted]
testified that
he [ [ redacted] ] “put my foot through the stand trying to get him to loose [n]
because he said he wasn’t breathing. I was telling him to ease up so I could loose [n]
his belt. He wasn’t making no effort to do it.” (Tr. 245).

On the ground,
[redacted]
found
a 13 to
15-foot log
in the woods 41
to give
AJ
something
wider
to balance on.

[redacted]
and
[redacted]
put the
13 to
15-foot log
next to the layup stick.
AJ
was able to “stand” on the log with one foot ,
off and on . [redacted]
told Bauer on January 14, 2020 that
AJ
would “get his balance for a second. And then it [the log] would kick out.” While holding the log upright,
[redacted]
screamed at
AJ
to “Slide out of the belt. Unclip it.

Unclip it.” Meanwhile
[redacted]
r a n to the truck
parked about 200 to 400 feet away
to retrieve
AJ ’ s
belt while
AJ
wa s still conscious
and fighting to save himself . While
[redacted]
is still holding the log upright,
AJ , no longer able to stand on the log, suddenly “went limp” and became unconscious. [redacted]
grabbed the
three
layup stick s
and “hooked his
[ AJ ’ s ]
hook. And I’m pulling him.

I’m trying to pull him through this belt” , but to no avail.
(Tr. 244 -54 ;
Ex s .
24, 31,
6 1
at
30,
47-65,
64
at
¶¶ 22-2 8 ,
32,
I at 3 3 8 - 40, HH at 737).

(b) A Second Midspan Excursion ; this time by
[redacted]

[redacted]
returned from the truck and gave
[redacted]
AJ ’ s
belt and a machete. 42
By the time
[redacted]
returned to
P ole
B ,
AJ ’s body was “limp” on the line.

(Tr. 251 , 613 ;
Ex s . 6 1
at 60 , HH-737 ).

[redacted]
climbed up Pole B. [redacted]
repeated
the steps
AJ
had used to get to the lasher :

he put
AJ ’s pole strap over the strand, slid
AJ ’s belt under his butt and went out “head first”
twenty
or so feet towards
AJ .

With one hand,
[redacted]
“pulled [his] weight up and [with] the other hand, [he] slid the [pole] strap” along.

(Ex. 61
at 59 ) .

After reaching
AJ ,
[redacted]
first unsuccessfully tried using a “nipper” ,
used
to cut wire ,
to try to cut
AJ
down. He
then
took about 6 to 10 swings of the machete to cut
the rope
lanyard
AJ
had tied over the strand . AJ
then dropped
down
to the ground. (Tr. 244-54;
Ex s .
24, 31,
6 1
at
30, 47-65,
64
at
¶¶ 22-2 8, 32, I at 339-40, HH at 737).

With
great
difficulty,
[redacted]
made it back
from where
AJ
had been
to Pole B, while screaming “I can’t do it, man. I can’t do it” , I can’t
[expletive deleted]
breath”,
and “I’m not going to make it” because he was having to go “straight uphill” on the strand. [redacted]
“felt like I [he] was fighting for my life for a minute.”

He “ flipped around,” was “upside down,” and “almost went …
ass over teacup on the strand.”

Eventually, he “ended up getting [his] leg back on top of the strand.”

[redacted]
said
[redacted]
was “panicking” while traversing the strand
back to Pole B . (Tr. 244 -54 ;
Ex s .
24, 31,
6 1
at
30,
47-65 ,
64
at
¶¶ 22-2 8 ,
32,
I at 3 39- 4 2 , HH at 737 ). [redacted]
stated
going out on the strand
to get to
AJ
was “scarier than anything” he had ever done.

( Ex. 61
at 72 ) .

Two days after the Incident, ECE issued a Safety Alert about
AJ ’s death, instructing: “There will be
NO midspan excursions
allowed for any reason. Use a ladder or pull the lasher back and start over.”

(Emphasis in Original) . (Ex. 53).

(c) Code
Inspector Baena calls 911
and Administration of
Cardiopulmonary
Resuscitation (CPR)

Code
Inspector Baena
was employed by Advantage Point Solutions and was assigned to inspect ECE’s work. She
reached
P ole
B
as
AJ ’s body fell to the ground.

( Tr. 253;
Ex. I at
336,
342 ) .

By this point,
AJ
had been hanging by his belt for approximately six to
fifteen
minutes.

( Ex. I at 339-40 ) .

AJ
did not have a pulse.

( Ex. I
at 342 ) .

Code
Inspector Baena knew the Crew’s location
and
called 911.

( Ex.
I at 342).

Code Inspector Baena
also performed
CPR but
was unable to
revise
AJ .

( Ex. I at 342 ) .

D .

Citation 1, Item 2 – Training at ECE

ECE did not prepare a “certification record” reflecting that ECE provided
AJ ,
[redacted]
or
[redacted]
with training in the “precautions and safe practices” set forth in 29 C.F.R. § 1910.268.

(Tr. 44 7 -49).

ECE did not obtain any “certification record” or other such documentation showing that
AJ ,
[redacted] ,
or
[redacted]
received training in the “precautions and safe practices” set forth in 29 C.F.R. § 1910.268 prior to his employment with ECE.

(Tr. 4 47 -51) . ECE did not provide
AJ ,
[redacted] ,
or
[redacted]
training on aerial lifts as required by ECE’s safety program . (Tr. 126-27,
359-60 , 456;
Ex s .
46 at R eq.
F or
P roduc.
No. 12,
56 at 25,
A at 1 ,
C at 011-15).

ECE did not provide
AJ ,
[redacted] ,
or
[redacted]
training on the “specific use of ladders for line work,” before commencing work, as required by ECE’s safety program, or at any time before the
Worksite
Incident.

(Tr. 128, 359-60 , 4 49 -5 2 ; Ex.
56
at
25 ).
ECE did not have a “qualified person” certify
AJ ,
[redacted]
or
[redacted]
in pole climbing before allowing them to climb poles, as required by ECE’s safety program, or at any time prior to the
Worksite
Incident.
(Tr.
128,
456-57;
Ex.
56
at
25 ).
ECE did not provide
AJ ,
[redacted] ,
or
[redacted]
with fall protection training before working at heights, as required by ECE’s safety program, or at any time before the
Worksite
Incident.

(Tr. 127, 359-60, 454-55 ;
Ex s . C at 0043-46 ,
56
at
2 0) . ECE did not ensure that
Messrs.
AJ ,
[redacted] ,
or
[redacted]
viewed the instructional video on the
Buck
S queeze , which is a
body belt system that provides
fall protection
that
ECE required employees to wear “while climbing wood poles” .

( Tr. 457; Ex s . A at 1; C at 0124 , 0146 ) . ECE did not provide
AJ ,
[redacted] ,
or
[redacted]
with training in specific
personal protective equipment ( PPE ) , as required by ECE’s safety program .

(Tr.
127, 359-60 , 631-32 ;
Ex. C at 108- 13 ,
Appendix es
A ,
C).

There are no training records in
AJ ’s personnel file.

( Tr. 577 , 631-32;
Ex. 56 ) .
ECE does not specifically train its subcontractor employees.

(Tr. 584) .

PM Becker does not have OSHA-30 training.

(Tr. 361) . PM Becker did not provide any classroom training at ECE.

(Tr. at 359-60) .

In his four years at ECE, PM Becker did not receive or give training on OSHA’s telecommunications standard. 43

(Tr.
338,
360-62) . He
did not give or receive any training on how to address stuck or flipped lashers.

(Tr. 362).

Lasher troubleshooting is not included in
ECE’s
new employee orientation.

(Tr. 362 ; Ex.
56 ) . PM Becker never told anyone that they should not go out on the strand.

(Tr. 363-64) . He
never provided any training on how to use layup sticks.

(Tr. 362).

PM Becker is not aware of ever being with
the C rew when it encountered a stuck or flipped lasher.

(Tr. 426) . PM Becker has no knowledge of
foremen
AJ
and Cole confronting a stuck lasher while working together.

(Tr. 426) .

Neither Cole nor Becker is aware of
AJ
ever encountering a stuck or flipped lasher. 44

(Tr. 134, 426).

Cole does not provide any formal training at ECE. 45

(Tr. 127) . For instance, Cole does not provide training on ladder usage.

(Tr. 128) . Cole has never certified any ECE employee in pole climbing.

(Tr. 128) . Cole never provided
AJ
with formal training after he was hired by ECE . Cole believed that
he “didn’t have to teach [ AJ ] anything” given his experience.

(Tr. 126).

Cole did not provide
AJ
with any training on troubleshooting lasher issues.

(Tr. 123).

Cole has not received any training on troubleshooting stuck lashers from ECE.

(Tr. 123) .
AJ ’s and Cole’s crews “joined together and did a couple of jobs” together.

(Tr. 126-27) . Cole never told anyone not to go out on the strand.

(Tr. 125-26) . No one at ECE ever told Cole not to go out on the strand. (Tr. 125) . Cole does not have any certification of training under 29 C.F.R.
§   1910.268.

(Tr. 129).

E. Citation I, Item 3 – Tools and PPE

The Crew did not bring a ladder to the Incident Worksite on January 13, 2020.

(Tr. 209, 256 ; Stip. No. 1 ) . Foreman Cole testified that he would have called PM Becker or his supervisor
Mr. Dodd if
he needed to get a ladder to use at a worksite. (Tr. 145). On January 14, 2020 ,
[redacted]
told
V P
Bauer
that he thought
AJ
would have used a ladder had one been on the truck.

(Tr. 271-72).

The Court finds that i t would have been possible to use a ladder to reach the lasher at the Incident Worksite on January 13, 2020.

(Tr.
327-28,
369-70).

Layup sticks are fiberglass sticks can be attached together and used to reach a stuck or flipped lasher.

(Tr. 121, 493) . Per
PM Becker
and Foreman
Cole ,
standing on a trash can with layup sticks is not a safe practice.

(Tr. 12 2-2 3, 383-84).

Per
PM Becker
and Foreman
Cole , using layup sticks while climbing a tree is not a safe practice.

(Tr. 122-23, 384).

The Court finds that had the Crew had access at the worksite to the normal complement of four layup sticks capable of reaching up to twenty-one feet the Crew would have been able to flip the stuck lasher back upright on the strand which was about eighteen to twenty feet off the ground. (Tr.
236,
243;
Exs. 64 at ¶ 11, I at 340, JJ at 1;
Stip. No. 21).

A nother way to address a lasher malfunction midspan is to pull it back to the pole and start over.

(Ex. 53).

At the Incident Worksite,
AJ
stood underneath the lasher and determined that it
would not pull back.

( Tr. 237;
Ex. 6 1
at 27).

AJ
told both
Messrs.
[redacted]
and
[redacted]
that the lasher would not pull back.

(Ex s . 6 1
at 85; 64
at
¶ 13). The Crew did not have any gear with it on
January 13, 2020
to safely traverse the strand.

(Ex. 6 1
at 30).

E CE
does not issue combination climbing/fall protection harnesses to its aerial line crews.

(Tr. 388-89 , 628 ) . VP
Bauer testified that ECE did not issue PPE to
AJ
for use when sliding out on the strand line
because
ECE employees “don’t do that. It’s not allowed.” (Tr. 553). But if AJ had been wearing a combination climbing and fall protection harness, he would not have been exposed to caught-in and fall hazards when he went out on the line wearing a climbing belt. (Tr. 634).

I. STIPULATIONS

The following facts and law were stipulated to by both parties in the Joint Pre-Hearing Statement
(J. Pre-Hr ’ g St ate m ent )
and the stipulations were accepted by the Court.

(Tr.
76 ) .

A. Stipulations of Fact

1. The truck used by
   AJ ’s crew on January 13, 2020 was not equipped with a ladder.

2. The lasher used by
   AJ ’s crew on January 13, 2020 did not have a top lock.

3. The lasher used by
   AJ ’s crew on January 13, 2020 did not have a back gate.

4. No employee on
   AJ ’s crew received any discipline for conduct on January 13, 2020.

5. Exhibit 63, the media file Eustis produced on April 26,
   2021
   with the file name “Follow
   discussion
   AB
   DW
   GB
   011520”
   is
   a
   recording
   of
   a
   conversation
   that
   took place
   between
   Andrew
   Bauer
   and
   crewmembers
   [redacted]
   and
   [redacted]
   on January 15,

6. 46

7. At all times relevant to this matter, Respondent was a communications contractor that provides manpower and equipment for the construction of communications systems.

8. The work at issue in the citation was performed pursuant to a contract between Respondent and Armstrong Communications involving the “Alfred” exchange, which refers to Alfred, New York (the “Alfred” contract).

9. Armstrong Communications received funding from New York State to extend broadband access to Western New York.

10. Respondent was the prime contractor for Armstrong on the Alfred contract.

11. The Alfred Contract included work in Allegany and Steuben counties in upstate New York.

12. The Alfred contract contemplated 184.71 route miles for “new aerial plant”, or above-ground telecommunication lines, in and around the town of Alfred, New York.

13. Respondent ran its work on the Alfred contract out of a temporary Field Office, located in Belmont, New York.

14. At all times relevant to this matter, Mr. Timothy Becker was the project manager in charge of ECE’s Belmont Field Office.

15. On January 13, 2020, a Monday, Mr. Becker assigned a three-man “aerial line crew” (the “Crew”) to lash fiber optic cable to an existing support strand.

16. The Crew included
    [ AJ ] ,
    [redacted]
    and
    [redacted] .

17. The Crew was part of Respondent’s Construction Department.

18. On January 13, 2020, the Crew’s scope of work included lashing fiber optic cable along numerous segments of the pole line, including the segment (the “Worksite” or “work step”) where the crew was working at the time of the work at issue in
    the citation.

19. The Worksite at issue in the citation
    was located in
    an easement to the south of Fischer
    Road in Andover, New
    York.

20. Specifically,
    the
    crew’s
    task
    in
    this
    “work
    step”
    was
    to
    lash
    fiber
    optic
    cable
    to
    bare support strand from approximately pole E23/Route 3000 to approximately pole 179/Route
    3000.

21. The pole line at issue runs roughly parallel to Fisher Road, starting first in an easement to the south of Fisher Road, then roadside along Fisher Road and ending up in an easement on the northside of Fisher
    Road.

22. The strand was located approximately 18 to 22 feet off the ground.

23. The strand was located a
    (sic) 47
    below the transmission wires.

24. At all times relevant to this matter,
    AJ
    was Respondent’s employee.

25. Respondent hired
    AJ
    on October 21, 2019.

26. On January 13, 2020, Mr.
    AJ
    died while performing line work at the Worksite.

27. On January 13, 2020, Mr.
    AJ
    was the crew’s working foreman.

28. The instant citation was not ECE’s first citation.

(Tr. 76; J .
Pre - Hr ’ g St ate m en t at
Ex. A at
10-11).

B. Stipulations of Law

1. For Citation 1, Item 2, as amended, the Secretary alleges that:

29 CFR 1910.268(c): The employer failed to provide training in the various precautions and safe practices described in this section and insure that employees do not engage in the activities to which this section applies until such employees have received proper training in the various precautions and safe practices required by this section:

a) On or about 01/13/2020 in a wooded area near 208 Fisher Road, Andover, New York; an employee used a climbing belt to climb out on the support strand to
retrieve a lashing machine that became stuck mid-strand. The employee slipped through the belt to his chest and was suffocated. Employees were not trained in the various methods to retrieve the lasher nor were they trained in the limitations of climbing belts or the hazards of misusing a climbing belt for horizontal access on an aerial wire.

2. For Citation 1, Item 3, as amended, the Secretary alleges that:

29 CFR 1910.268(e): The employer failed to provide personal protective equipment, protective devices and special tools needed for the work of employees, and failed to ensure that such equipment was used by employees:

a) On or about 01/13/2020 in a wooded area near 208 Fisher Road, Andover, New York; an employee used a climbing belt to climb out on the support strand to retrieve a lashing machine that became stuck mid-strand. The employee slipped through the belt to his chest and was suffocated. A combination climbing/fall protection harness and appropriate rigging was not on site. Neither a ladder nor a sufficient number of
layup
sticks to reach the support strand were on site.

3. The Secretary withdraws Citation 1, Item 1; and for Citation 1, Items 2 and 3, the Secretary withdraws his alternative allegations under 29 C.F.R. Part 1926.

4. Each party hereby agrees to bear its own fees and other expenses incurred by such party in connection with Citation 1, Item 1.

5. Jurisdiction over this action is conferred upon the Occupational Safety and Health Review Commission by section 10(c), 29 U.S.C. § 659(c), of the Act.

6. At all times relevant to this matter, Respondent was engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the
   Act, and
   was an employer within the meaning of section 3(5) of the Act.

7. The law of the Commission and the Second Circuit Court of Appeals applies to this matter. 48

8. At all times relevant to this matter, ECE was a corporation doing business in the State of New York.

9. The work at issue in the citation constitutes “telecommunications field installations” as defined by 29 C.F.R. § 1910.268(a).

10. OSHA’s telecommunications standard, 29 C.F.R. § 1910.268, is applicable to this matter.

(Tr. 10-13, 76 -77 ; J .
Pre - H r ’ g
St ate m en t at Ex. B at 12-13).

A three - day trial was conducted on April 26 through April 28, 2022. 49 (Tr. 1).

III. DISCUSSION

A. T he
S ecretary
H as
P roven
E ach
of
the
C ited
V iolations .

The Secretary has met his burden in proving both items of the Citation.

To demonstrate a
prima facie
serious violation of a safety standard under the Act, the Secretary must prove by a
preponderance
of the evidence that :

(1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; and (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition. N .
Y .
State Elec. & Gas Corp. v. Sec ’ y of Labor , 88 F.3d 98, 105 (2d Cir. 1996);
Astra Pharm. Prods., Inc. ,
No. 78-6247 , 1981 WL 18810, at *4 ( OSHRC ,
July 30,
1981 ),
aff’d in
relevant
part ,
681 F.2d 69 (1st Cir. 1982).

The Commission defines a pre ponderance
of the evidence as enough to convince the trier of fact that the facts asserted are “more probably true than false.”

Astra Pharm. Prods. Inc. , 1981 WL 18810, at *5.

Based on the record
of this
case , and as set forth below, the Secretary has
e stablished that
ECE
violated the cited standards
because it failed to equip the Crew with the
tools
and PPE required by
29 C.F.R. § 1910.268(e)
and did not ensure that the Crew received the proper training required by 29 C.F.R.
§ 1910.268(c). 50

B.
E CE
Did Not Ensure that the Crew Received Proper Training Before Engag ing
in the Activities Covered by
29 C.F.R.
§  1910.268 (c) .

OSHA issued
Citation 1, Item 2
because ECE failed to provide
the Crew with
training
relevant to
the
aerial line work
they performed
at the time of, and during the three months leading up to,
the fatality .
The evidence presented a t
the trial
shows that ECE
did not
p rovide
instructions
to the Crew
sufficient to
prepare
it
to
perform
the work
PM
Becker
assigned
to it o n January 13, 2020.

P rior to sending the Crew out into the field, ECE failed to ensure that
the
Crew had received
proper
instructions
and training
on how to prevent
the
known
hazards associated with performing
routine midspan work
at offroad worksites ,
such as
the Incident Worksite , w here a bucket truck is not an option
for reaching working altitude
of
twenty
or more feet. 51

Training
instructions
sh ould have included
the use of
personal climbing equipment
and
ladders,
and

ECE’s failure to provide
such
training and
instructions
exposed the Crew to
serious hazards , as the death of
F oreman
AJ
demonstrates.

A ccordingly,
Citation 1, Item
2, is
affirmed.

1. The Cited Standard Applies.

The
parties stipulated that
“the work at issue in the citation ” ,
lashing fiberoptic cable to an existing support strand ,
“ constitutes
‘telecommunications field installations’ as defined by 29   C.F.R.   §   1910.268(a).” 52

( Legal
Stip .
No.
9 ). 29   C.F.R.   §   1910.268(c) applies and
ECE was required to comply with the
standard’s
training
provision .

2. ECE
   violated
   §
   1910.268(c) by failing to ensure that the Crew had proper training under 29 C.F.R. §
   1910.268 (c)
   before they commenced field work.

The evidence demonstrates that ECE did not comply with the training provision in OSHA’s telecommunications standard, 29 C.F.R.
§
1910.268(c).

The Secretary
establishes
non-compliance with
a
training standard
by
show ing
that an employer failed to provide potentially exposed employees with “the instructions that a reasonably prudent employer would have given
under the same circumstances.”

N &
N Contractors ,
Inc. ,
No. 96-0606 , 2000 WL 665599, at *7
( OSHRC ,
May 18,
2000 )
aff’d , 255 F.3d 122 (4 th
Cir. 2001 ).

Such circumstances include “the specific conditions [at the worksite], whether those conditions create a hazard, and whether the employer or its industry has recognized the hazard.”

Compass En v’ t l , Inc. , 663 F.3d 1164, 116 8
(10th Cir. 2011) ( quoting
W.G. Fairfield Co. ,
No. 99-0344 , 2000 WL 1535922, at *3
( OSHRC,
October 16 , 2000)
aff’d,
285 F.3d 499 (6 th
Cir. 2022) ).

An employer’s instructions must be “specific enough to advise employees of the hazards associated with their work and the way to avoid them.”

El Paso Crane
&
Rigging Co. ,
No. 90-1106 ,
1993 WL 393508, at *8 n.7
( OSHRC,
Sept. 30 , 1993).

OSHA’s
telecommunications
standard aims to protect
employees
from the hazards associated with what , as ECE concedes, is an “inherently dangerous industry . ”

( Ex.
56
at 18 ) .
As set forth in the Preamble to the rule:

The foremost concern of these standards is to assure that telecommunications workers
will take proper precautionary measures and have proper training with respect to them and will use
appropriate protective equipment in carrying out their duties.
The primary hazards to which these standards are directed relate to the prevention of
injuries caused by electricity and falling.

38 Fed. Reg.
23038
(Aug. 28, 1973) .

Accordingly, t he standard
includes a training provision that
requires covered employers to
“ i nsure that employees do not engage in” covered work until they “have received proper training in the various precautions and safe practices required by”
the
standard.

29 C.F.R. § 1910.268(c) . T he standard requires that
“employees be trained in the safe practices applicable to the telecommunications industry.”

Marcus Cable Assoc s . ,
LLC . ,
No. 02-0966 ,
2003 WL 1889141, at * 5
( OSHRCALJ, April 14 , 2003 ) .

Such
“precautions and safe practices” include how
to
prevent injuries from falls, or more specifically, how to
safely access
and perform work at
“ Other
elevated
locations ”
at working altitude .

38 Fed. Reg. 23038 ;
29 C.F.R. § 1910.268(n)(8) .

See Marcus Cable ,
2003 WL 1889141, at *5 ( affirming violation of section 19 10.268(c)
due to
failure to certify training on
“precautions
necessary to prevent an employee from falling from the elevated bucket of
the Ford F-450 bucket truck.”).

Further, “where appropriate,” t he standard requires that covered employers
“shall include” instruction on
certain
enumerated topics ,
relevantly including
“[p]rocedures to be followed in emergency situations . ”

29 C.F.R. § 1910.268(c)( 2 ).

See also
OSHA Interpretation Letter, Mar. 1, 2004 at 1
(Interp. Ltr.)
( Recognizing
that “the nature of telecommunications work presents a wide variety of work locations, schedules, and work crew configurations” and that such differences influence what training is appropriate). 53

( Interp. Ltr. at 1,
https://www.osha.gov/laws-regs/standardinterpretations/2004-03-01-0, last accessed
by the Court
on
October 19 , 2022 ; Sec’y P ost H r’ g Br .
at 26) .

The OSHA Interpretation Letter also states: “The requirement to provide training ‘where appropriate’ allows employers to evaluate their own worksites and job tasks and determine for themselves, using reason and prudence, what training is necessary.” (OSHA Interp. Ltr. at 1).

Accordingly,
“ the reasonabl y
prudent employer
concerned
about the safety of its employees”
needs to
evaluate its worksites and job tasks
to “detect potential dangers”
and
ensure that its crews receive
“instructions sufficient to inform them about the conditions ”
th at
they will “ foreseeably
encounter[ ]….”
during field work.

Pressure Concrete Constr. Co. ,
No. 90-2668 ,
1992 WL
381670,
at * 6- 8
( OSHRC, Dec. 7,
1992) .

See also
Interp. Ltr. at 1.

This includes
known
geographic and
environmental
conditions
relevant to the work ,
a s well as the
related
r outine problems
and
hazards .

See
also
Hayward Baker, Inc. ,
No. 12-0859,
2013 WL 2458533, at * 5
( OSHRCALJ, Apr. 19,
2013)
(training inadequate
when it
failed to address “how to deal with the routine problem of a stuck or difficult-to-load casing . ”) ;
Compass
Env’t l , 663 F.3d at 1170 (“Nor does it seem unduly burdensome to require an employer to train its employees on a known severe hazard at a mobile construction worksite where unanticipated contingencies may arise.”) .

T he “ requisite instructions have to be detailed enough to take into account various contingencies . ”
and emergencies related thereto.

Pressure Concrete , 1992 WL 381670, at *8 ;
29 C.F.R. § 1910.268(c)(2)-(3).

a. A reasonabl y
prudent employer
needs to
provide specific instructions to aerial line crews about how to reach
elevated positions
from which
to perform midspan work without a bucket truck.

At the time of the
Worksite
Incident, the
parties agree that the
Crew was
lashing cable
offroad in an easement ,
when
the lasher
malfunctioned midspan at about
twenty
feet
above ground .

( Stip. Nos.
14 , 17 -2 2 ;
Ex 64 ¶¶ 2-9 ) .

B oth easement worksites
and
lasher
malfunction s
were
commonplace
throughout
ECE’s
Armstrong Project.
54

( Tr.
119 ,
461 ; Ex. 46 at
5
(Resp. to Interrog.
Nos.
1 3-14 ) ) .

Under these circumstances , a reasonabl y
prudent employer
concerned about the safety of its employees ,
needs to
provide
its aerial line crews with specific instructions about
safe
means and methods
to reach and repair malfunctioning lashers
in easements,
without
the benefit of
a bucket truck .

( Tr.
209 ).
Such instruction s
would
include “potential dangers”
related
to
such work
and
be
“ detailed enough to take into account
various contingencies , ”
a s well as
the procedures to follow during
emergencies .

Pressure Concrete , 1992 WL 381670, at *8 ;
29   C.F.R.   §   1910.268(c)(2) (3) .

One such known contingency
is
the possibility of
what ECE refers to as “midspan excursion s ,”
or
employees
traversing the line
to
access
difficult-to-reach
equipment,
as
AJ
ultimately did on January 13, 2020 .

( Ex. 53 ).

T his
practice is, as CSHO Michael Willibey learned during his investigation, something
“ that happens” throughout the industry, even if “not encouraged or endorsed.”

( Tr.
617 ) .

Four
former and current ECE employees , Messrs. Becker, Bauer, 55
[redacted]
and
[redacted] ,
acknowledged that they had either personally witnessed the practice, or heard of it
prior to the
Worksite
Incident.

( Tr.
25 4 ,
373,
413-14, 474 , 615-16 ; Ex. 6 1
at 72 ) .

A s such , the reasonabl y
prudent employer concerned about employee safety would include instructions
about this known danger
and
related
emergencies .

O ne option
wa s to prohibit
the practice altogether ; another
wa s to teach employees how to do it safely.

See
New Eng .
Tel. & Tel. Co. ,
No. 76-3010 ,
1980 WL
10607, at * 14
( OSHRC,
May 30 , 1980)
( Company had t wo different avenues to avoid a violation of 29 C.F.R. § 1910.268( j )( 4 ) (i) :

train employees
or m ak e it unnecessary for
them
to work near the
hazard ).

ECE concedes that aerial line crews need to learn information about midspan work,
including how to
address
lasher
malfunction .

( Ex. 46 at
5 ,
Resp. to
RFP
No.
14 ).

ECE
claims linemen typically learn
about
midspan work
( other than midspan excursions )
“hands on,”
throughout their careers .

( Id. ).

P er VP Bauer,
midspan excursions are , “like riding on the
hood
of a car,”
or
something “ [ y ] ou
just
don’t do … ” .

But,
ECE had “no rules specific to midspan
work . . . .”

( Ex s . 46 at
11
(Resp. to
Req.
F or
P roduc.
Nos.
29-30 ) ,
6 1
at 30-31 ). CO Willibey testified that
although
employees
told him that they had
received field training relating to retrieving stuck lashers ,
there was no specific training about what to do with lashers. (Tr. 674-7 6 ). CO Willibey stated that
“[t] here was no confirmation of the training, no certification of the training to ensure that the employees, first of all, understood the rules and second of all, followed the rules.” (Tr. 675-76). The Court agrees with the Secretary that without more the Court is not able to conclude that such OJT training about what to do with lashers
actually occurred . (S ec’y .
Post
H r ’ g
B r.
at 9).
See U.S. ex rel. Compton v. Midwest Specialties, Inc. , No. 96-4374, 1998 WL 30811, at *7, n. 6 (6 th
Cir. Jan. 22, 1998) (The absence of a record of an event that would ordinarily be documented is probative of the fact that the event did not occur.).

b. ECE did not ensure the Crew received proper training .

The evidence
establishes
that
ECE did not ensure that the Crew
had
received
instructions that the reasonabl y
prudent employer would provide to protect it
from hazards
it
“foreseeably encountered on the day of the fatal
accident ”
at hiring or at any point prior to the
Worksite
Incident.

Pressure Concrete , 1992 WL
381670,
at * 8.

Per the
cited
standard, the employer “shall provide” such training directly to new employees
before they commence field work
absent proof
that an employee “ is already
trained
in
the precautions and safe practices”
applicable to the telecommunications industry
“prior to his [or her] employment….”

29 C.F.R.
§   1910.268(c).

See generally
Elliot Const r . Corp. ,
No. 07-1578 ,
2012 WL
3875594 , at
*9 ( OSHRC, Aug. 28 , 2012 )
( stating
“the
‘ purpose of the Act is to prevent the first accident.’” )
( quoting
Lee Way Motor Freight, Inc. v. Sec’y
of Labor ,
511 F.2d 864, 870 (10th Cir. 1975)).

Here, ECE
cannot
show compliance under
either option.

First,
there
is no evidence that ECE
itself
provided the Crew with
proper
training.

Second,
there is no evidence that ECE
ensured
each of
the
cr ew members
was “already traine d”
in the various precautions and safe practices set forth i n OSHA’s telecommunications standard
prior to joining ECE .

29 C.F.R. § 1910.268(c) .

(i) ECE did not provide proper training to the Crew .

ECE
did not
provide
the Crew
with
proper training
about how to address the hazards
common to their work on the Armstrong project , such as
those
that
were anticipated and encountered on January 13, 2020 .

The Crew did not receive such information
via
“on-the-job training or classroom-type training or a combination of both”
as required by
29   C.F.R.   §   1910.268(c) .

(a) ECE
did not provide classroom training .

ECE did not
provide
any
formal/classroom training
to the Crew at hiring or at any time prior to the
Worksite
Incident .

At
trial ,
PM
Becker
testified unequivocally that he did not provide any classroom training while at ECE .

( Tr. 361-62 ) .

F oreman Cole
gave similar testimony.

( Tr.
127 -28 ) .

PM
Becker further testified that he neither gave nor received any training on OSHA’s telecommunications standard specifically while at ECE.

Foreman Cole also acknowledged he ha d
no certificat e of training for training required under 29 C.F.R.
§  1910.268(c) . ( Tr.
128-29,
359-60 ) .

ECE asserts that its safety
program
includes
initial
orientation
training,
a
safety
manual provided
to
all
employees
and
kept
in
every
truck
for
reference,
on
the
job
training,
video
trainings and
formal
classroom
training
in
safety
every
week
as
part
of
regular
employment
duties.

(R esp’t
P ost
H r ’ g
B r.
at 10).
This assertion is broad in scope, but short on specifics.
T here
are
no
document s
in the record reflecting that anyone at ECE provided the Crew with formal training in the three-month period between their hiring and the
Worksite
Incident.

A s to
the
proper procedures, means and methods for
midspan work ,
including lasher malfunction,
ECE’s written safety program is silent .

For instance ,
ECE’s
written
safety materials contain
no
specific
discussion
of :

(1) midspan excursions; (2) work in easements;
(3)
“the specific use of ladders for line work,”
or ( 4 )
several
methods
that
ECE witnesses described at
the trial
as
options for
reach ing
and repair ing
lashers without a bucket truck,
e.g. , layup sticks or
lowering the strand .

( Tr.
119-20, 234-35, 364-65 ;
Ex s .
56,
C ). PM Becker confirmed at
the
hearing that he did not provide any training on
the proper usage of
layup sticks .

( Tr.
362 ). Foreman
Cole
testified that he was not aware of any rules regarding the number of layup sticks crews should carry on the truck.

( Tr. 132-33 ) .

Also,
ECE witnesses provided inconsistent testimony about
the work
and equipment entailed
in
lowering the strand, thereby
illustrating the lack
of any
clear
training or rules on this point.

( Tr.
313 ,
375,
380 ).

ECE
p rovides no formal training on lasher retrieval and has
“ no rules specific to midspan work” ,
or any “specific rule that addresses a ‘stuck lasher.”

( Tr. 445-46; Ex. 46 at 8 (Resp. to R eq.
F or
P roduc.
14),
at 11 (Resp. to R eq.
F or
P roduc.
30, 34).
PM Becker also testified that lasher troubleshooting is not covered at new employee orientation, and it was not covered at any weekly safety meeting during the relevant
time period .

Th e subjects covered at
the
weekly safety meetings
are at exhibit 51. (Tr. 362, 403 , 433-34 ;
Ex s . 51 ,
54,
56 at 17 ) .

Foreman
Cole, a 2 2 -year veteran with ECE, testified that he had never received any
formal
training on lasher troubleshooting from ECE ,
and he never received or provided any training on midspan excursions.

( Tr.
89 , 123,
126-27 ) .

Foreman
Cole testified that he did not provide
AJ
with formal training, including on how to retrieve a stuck lasher.

( Tr. 126-27 ) .

PM Becker
too
testified that
he
neither received nor provided any training on lasher malfunction .

( Tr.
362 -64 ) .

Bauer
testified that he never “heard of formal training for retrieving a stuck lasher.” He
said,
“all that training is hands-on training in the field.” (Tr. 511-12).

As to the proper
use of
other
equipment
used
to
perform
midspan work
and
the PPE used to
prevent hazards related thereto,
ECE ’s written safety materials
contemplate
some
formal training ,
but
ECE did not provide it to the Crew .

For instance, ECE’s
S afety
M anual requires formal
training ,
and documentation thereof,
on PPE,
fall protection , including the use
of the
“Buck Squeeze”,
and
aerial lifts .

( Ex s .
56 at 25,
C at 0011-0015 ,
0043-0047 ,
0108-0113,
0 124 , 0146 ) .

ECE’s safety program, like OSHA’s telecommunications standard, requires that employees receive the training noted in
its
S afety
M anual
“prior to performing any work….”

( Ex s .
56 at 25,
C at 0008 ) .

With respect to ladders and fall protection, all key components of midspan work specific to easement worksites, ECE is clear that such training is to take place at the start of employment “regardless of claimed previous experience.”

(Exs. 56 at 25,
C at 0045).

Yet,
VP Bauer confirmed at hearing that ECE has no record of providing the Crew with
any of the
training its own
S afety
M anual requires.

( Tr. 451-52 ;
Ex s . 46 at 8 ( RFP
No.
12) ,
51 , 56 at 17,
C .) .

ECE has provided no explanation for the absence of training mandated by its own safety program.

ECE admits that it did not perform a site-specific safety program for its work on the NY Broadband Program, and
there
is
neither a job hazard assessment form ,
nor worksite “walk - through” documents ,
in the record.

(Tr. 442-43;
Ex. 46 at 7 -8
( Resp. to RFP
No s .
6 , 8-9, 58,
C
at 0110 ).

T o the extent ECE performed any assessment of the types of training that it considered appropriate for its line of work, it is reflected by its written safety program , which it routinely disregarded .

( Exs.
56,
C ) .

As with midspan work generally, ECE’s written materials also do not contemplate the “procedures to be followed in emergency situations … ” related to
its
work or any work performed in remote, offroad worksites like the Incident Worksite.

( Exs. 51 , 56, C).

( 29 C.F.R. § 1910.268(c)(2) ) ,

VP
Bauer testified that generally ECE trains “people to stay alert, stay calm, and make the best decisions they can in the moment.”

( Tr. 484 ) .

But neither PM Becker nor
F oreman Cole gave testimony to that effect, and ECE’s written program does not include any
guidance
to help prepare its linemen to make such decisions
in emergency situations .

( Exs. 51 , C).

See
Pub. Utils. Maint., Inc. ,
No. 08-1831,
2009 WL 532 307 1 , at 9
( OSHRCALJ, Nov. 17,
2009)
(admonition that employees “be careful” rejected as giving employees “too much discretion in identifying unsafe conditions and was therefore too general to be effective in preventing employee exposure”)
( quoting
Superior Custom Cabinet
Co .,
No. 94-200,
1997 WL 603024, at 3 ( OSHRC, Sept. 26 , 1997),
aff’d
158 F.3d 538 (5th Cir. 1997) (per curium) .

ECE admits that it ha d
“[n]o
safety
plans specific to NY Broadband program.”

( Ex. 46 at 7 ,
Resp. to
R eq.
F or
P roduc.
No.
6) .

T h ere was
no evacuation plan specific to the Incident Worksite.

See Pressure Concrete , 1992 WL 381670, at *7 -8
(instructions to “get out” in case of an emergency, to the extent given were “not communicated in such a way as to make them meaningful to” employees).

To the extent ECE’s
S afety
M anual contemplates any emergency situations, it is limited to two very specific emergencies:

chemical spills and “pole top rescue.”

( Ex. C at 0028,
0 130-32 ) .

ECE employees had access to ECE’s Safety Manual. ECE’s Safety Orientation states “All trucks have safety manuals as do all office locations.” ( Tr. 551; Exs.
56 at 18,
C ). ECE’s Employee Orientation Checklist states :
“All vehicles and offices are equipped with a copy of the safety
manual,
and they are available upon request.” ( Tr. 542;
Exs.
5 6 at 80 , C) . PM Becker
said,
“everybody got one [Safety Manual]” and the Safety Manual is kept “[i]n every truck.” (Tr. 402; Ex. C). VP
Bauer testified that the Safety Manual “is available in the offices, in the trucks, and also electronically per request.” (Tr. 438 , 551 ; Ex.
C).
VP Bauer’s testimony was that ECE “typically do[es] not make [employees] read the whole [Safety] manual,” and it neither tests employees on the Safety Manual nor requires them to acknowledge having read it. (Tr. 437-38; Ex. C). Foreman Cole admitted that “we don’t really study it [Safety Manual],” noting that it was “huge,” and at trial he said he could not recall everything in it. (Tr. 129; Ex. C). [redacted]
testified that he had a copy of the Safety Manual which he kept in his house or in the truck. (Tr. 297-98; Ex C). [redacted]
said “[e]very Monday morning they always have a safety meeting where we go through different safety procedures.” (Tr. 298, 314, 354-55). VP
Bauer also testified that employees are given Safety Orientation materials included within the “Eustis Cable Enterprises Orientation SAFETY” document
at Exhibit
56 . (Tr. 436-37; Ex . 56
at 17- 32 ). He said “[t]he safety orientation is essentially an overview of our safety program.” (Tr. 540-41; Ex.
56
at 17- 3 2). VP Bauer testified that ECE includes a safety section in its Employee Handbook to remind employees that ECE provides a safe and helpful work environment. (Tr. 554; Ex. 56 at 67 at ⁋5-01 Safety).

Finally,
at
the trial
VP Bauer admit ted
that
ECE does not have a
“certification record” for any member of the Crew demonstrating that ECE provided the training required by the cited standard.

( Tr.
129,
448-49 ) .

The standard at
29 C.F.R. § 1910.268(c)
states , in part,
that
employers :

shall certify that employees have been train ed
by preparing a certification record which includes the identity of the person trained, the signature of the employer or the person who conducted the training, and the date the training was completed .
The certification record shall be prepared at the completion of training
and
shall be
maintain ed on file
for the duration of the employee’s employment ….

(1 C .F.R. § 1910.268(c)).

(b) ECE
did not provide on -the-job training
to the Crew .

ECE did not provide any
on-the-job training (OJT) to the Crew at hiring or at any time prior to the
Worksite
Incident.

(Tr. 596). But
ECE claims
that
the Crew received
OJT .

T he weight of credible evidence belies that assertion.

T estimony from
ECE’s
own
former and current employees
makes clear that any
purported
OJT
did not include the instructions a reasonably prudent employer would have provided under the circumstances .

PM
Becker and
F oreman Cole both testified that they never instructed anyone not to go out on the strand.

Per
PM
Becker, “the subject never came up.” ( Tr. 125-26, 363-64 ) .

The absence of training on the dangers of midspan excursions was underscored by
[redacted] ’s candid statements to VP Bauer the day after the
Worksite
Incident.

[redacted]
told VP Bauer,
“I didn’t know to say [to
AJ ],
Y ou’re not doing this right .  . . . ”

( Ex. 6 1
at 31 ) .

To the contrary, he “thought [ AJ ]
had
more experience than” he
did
and he
“thought [ AJ ] had done [a midspan excursion] before.”

(Ex. 61
at 32 ) .

P er
[redacted] ,
AJ
“acted like he had done it a million times….” 56

(Ex. 61
at 71 ) .

[redacted]
admitting that on the day after the
Worksite
Incident, he told VP Bauer that
he thought
what
AJ
did was a “last resort” option .

( Tr. 255-56 ).

Messrs.
Cole and Becker
were
not familiar with
the term “midspan excursion” before
their
deposition s in this case . (Tr. 124-25, 364).

PM
Becker and
F oreman Cole
a lso testified that they
did not
provid e
hands on
instructions
to
AJ ’s
Crew
on how to address a stuck or flipped lasher.

( Tr.
362,
417 ).

PM Becker testified that
“ [t] here was never any really instruction” on
retrieval of stuck lashers .

(Tr. 134, 417,
426 ) .

[redacted] , however,
appeared to have told CO Willibey as one of the employees the CO interviewed , 57
t hat he
was
“ show n in the field ”
how to retrieve a stuck lasher
and testified
at trial
that it was
Cole
who
showed him how to do it .

( Tr.
311 ;
Ex. JJ at 8).

But
the Court finds
[redacted] ’s
testimony
to
not
be
credible
on this point .

Foreman
Co le ’s
testi mony does not support
[redacted] ’s
contention .

Cole
did not have any
specific recollection of encountering a stuck or flipped lasher when
working with
AJ ’s crew
prior to the
Worksite
Incident , either in an easement or on the roadway.

( Tr. 134,
426 ) .

PM
Becker
had
no recollection of
AJ
and Cole
encountering this problem together .

(Tr.
596 ). Foreman
Cole
testified
that, in his experience, stuck or flipped lashers do not occur tha t often ,
“probably zero” times
in a given
month .

( Tr.
143-44 ) .

The Court doubts
that
Foreman Cole
provided any
hands - on
instruction s to the Crew
about
how to address this p rocess.

Like Cole,
PM
Becker could not remember
any instance when he
personally
encountered this issue
in the field
with
AJ
or his c rew .

( Tr. 426 ) .

Thus,
testimony from
ECE’s own witnesses prove s
that
ECE
failed to
provide
any
instruction via OJT on what
i s a routine problem
ECE
linemen
“frequently”
face .

( Ex. 46 at
5 -6 ,
Resp. to Interrog. Nos. 13-14 ,
17 ).

Foreman
Cole
testified
that
PM
Becker asked
him
to observe
AJ
and assess whether he thought
AJ
could run his own crew, which he did. 58

( Tr.
138 -39 ) .

Foreman
Cole testified that he observed how
AJ
climbed poles.

(Tr.
128 ) .

But ,
he did not certify
AJ , or anyone, on pole climbing before letting them climb poles
and he did not provide training
on
the “specific use of ladders for line work.”

(Tr.
127-28 ;
Ex.
56
at
25 ) .

Foreman
Cole testified
that
AJ ’s and
Foreman
Cole’s
crews did
“not often”
work together. T he
two crews would “double team” so they could “get the job done.”

( Tr. 134 ) .

During this time,
Foreman
Cole
admitted that
he did not
“ teach ”
AJ
anything .

( Tr.
126 ) .

He
testified that “I didn’t have
to show him
[AJ]
anything
because he pretty much knew, just like I do, what we were doing, so I didn’t have to teach him anything and such, no. ”

(Tr. 126).

But,
CO Willibey contended at trial that
AJ
was not appropriately trained to competently and safely perform his work. He said
that
AJ “didn’t recognize
[this
as ]
an unsafe condition.” (Tr. 686).

T he weight of credible evidence
in
the record proves
that
ECE
did not
provide the
Crew with the
training a “reasonabl y
prudent employer” would provide via formal training or OJT.

29 C.F.R. § 1910.268(c ).

ECE has no document showing that ECE provided fall protection training to
AJ
or certified him in pole climbing. (Tr. 454-56). No ECE employee, including Foreman Cole, claimed at trial to have certified
AJ
in pole climbing. (Tr. 128). T here
are no documents
or certifications
in the record reflecting that anyone at ECE provided the Crew with
the required OJT
in the
less than
short
three-month period between their hiring and the
Worksite
Incident.

(Ex s .
I at
338, 340, S
at 0435 ).
The absence of required documentation is indicia that the event, in this case
the
required
training
of AJ,
[redacted]
and
[redacted] ,
on the retrieval of stuck lashers
did not occur
Midwest Specialties, Inc. , 1998 WL 30811, at *7, n. 6 )
(T he absence of a record of an event that would ordinarily be documented is probative of the fact that the event did not occur.).

Instead, as
described
below,
ECE
sent the Crew into the field, not on proof of proper
training
prior to joining ECE , but
based on
being aware that
each of the crewmembers had some
experience in the industry and
ECE’s
faulty
assumptions about
what
the Crew members
actually knew . (Sec’y P ost
H r’g
B r.
at 47).

(ii) ECE
did not ensure
that the Crew had
already received proper training prior to
employment with
ECE .

To comply with the
cited standard ,
an
employer
may
demonstrate “that an employee is
already trained in
the various precautions and safe practices required by” OSHA’s telecommunications standard
“prior to employment . ”

U nder
such circumstances,
an
employer
may
assign
employees to
“engage
in [covered] activities”
without first providing the required
safety
training itself.

In other words, t he standard
permits employers to substitute evidence of
prior
external
safety
training for its own initial
safety
training. However ,
t he standard does not permit employers to
assume
the required
safety
training
occurred
simply because an employee has
experience in the industry
prior to employment .

29 C.F.R. § 1910.268(c) ;
New Eng .
Tel. & Tel. Co. , 1980 WL 10607, at 14 (“even highly experienced employees are entitled to the protection the Act seeks to provide . ”) ;
Jesco, Inc. ,
No. 10-0265,
2010 WL 9448085, at 2
(OSHRC, Mar. 26,
2010)
(“If the wording [of a standard’s text and structure] is unambiguous, the plain language of the standard will govern . . . ”).

Here,
ECE “mistakenly relied on the general experience of its linemen and assumed that each one knew what to do” under the circumstances the Crew encountered at the Incident Worksite.

Davis H. Elliot Co. ,
Inc. ,
No. 15-0799,
2017 WL 3217818, at *45
(OSHRCALJ, June
19,
2017 ) .

ECE did not, and cannot, demonstrate that
“prior to employment” with ECE,
any member of the Crew
received
train ing
in the precautions and safe practices set forth in the telecommunications standard, including those that a reasonably prudent employer would have provided under the circumstances
and
“[ p ] roc ed ures to be
followed in emergency situations; ….”

29
C.F.R. § 1910.268(c),(c)(2)).

(a) ECE did not
confirm the Crew had safety training prior to employment with ECE .

The record
shows
that ,
prior to sending the Crew into the field,
ECE did not confirm that each member of the Crew
was “already trained in the precautions and safe practices” set forth in OSHA’s telecommunications standard .

29 C.F.R. § 1910.268(c).

At
trial , no witness
provided testimony about the receipt of required safety training prior to joining ECE.

Also,
ECE
did not proffer
any “certification record”
from a prior employer
or any record of any kind showing training the Crew received “prior to employment.”

( Ex. 56) .

ECE offered neither testimony nor records
showing
that any member of the Crew had received
training
prior to employment
at ECE
on
the safe means and methods for working at heights , including
but not limited to performing midspan work
and the procedures to be followed in emergency situations .

For instance, despite ECE’s emphasis on ladders ,
bucket trucks
and
layup
sticks
to perform midspan work ,
ECE offered no proof of
the Crew’s prior
training
on
any of
these topics .

(Tr. 116, 382;
Ex. 46 at 5-6, 11 (Resp. to Interrog.
Nos.
13, 18 ),
R eq.
F or
P roduc.
No.
29) .

T he absence of
the required
prior
training
records is
particularly conspicuous given that
the sole employer
both
AJ
and
[redacted]
listed on their employment applications was Cram m er ,
a subcontractor to ECE on the Armstrong Project.

At
trial , VP Bauer testified that ECE does not train the employees of its subcontractors.

( Tr.
484 ) .

A ny training
AJ
or
[redacted]
may have
received
before October 2020
on the project would have come from C rammer .

But
none was
forthcoming into the record.

(b) G eneral
industry
experience
is not a
substitute for required
safety training .

Without
any training
records, ECE
tries to emphasize
that the Crew had prior
experience
in the industry when they joined ECE , which ECE
asserts
would have included hands-on learning about how to
use and retrieve lashers .

P roof of
industry
experience is not proof of safety
training ,
and
the plain language of the standard refers to prior training .

29 C.F.R.
§   1910.268(c).

See
also
Davis H. Elliot Co. ,
Inc. , 2017 WL 3217818, at 45 ( employer
“cannot shift its safety responsibilities to its employees” by “rely [ ing ]
on the general experience of its linemen and assum [ing]
each lineman knew what to do” under certain situations) ;
New Eng .
Tel. & Tel. Co. , 1980 WL 10607, at 14 ( “ an employer may not ignore readily available opportunities to take precautionary measures that will protect an employee from exposure to life threatening hazards simply because the employee is experienced”) .

ECE’s own
safety program
underscores the point .

Regardless of any
hands-on
learning that
ECE claims
occur s
during work activities ,
ECE ’s policy
still
requires
– at least on paper – that
its employees receive
formal
t raining
on
topics such as , in relevant part,
ladders, aerial lifts , pole climbing
and PPE .

Indeed, ECE’s written
Safety Manual
emphasizes
that such
“ T raining
for this program
will be conducted
prior
to performing any work….,”

and
mandates
that
some training
be provided
“ regardless of
claimed
prior experience . ”

( emphasis in original)
( Ex. C at 0008 , 0045 )
(Sec’y P ost
H r’g
B r.
at 29 -31) .

T he record highlights the
inadequate nature of the Crew’s
prior
industry experience. 59
T he
Crew’s
unsafe
conduct
at the Incident Worksite ,
both
before and
during the
attempted
rescue
of AJ ,
reveal the
severe shortcomings
of
ECE’s reliance
on the Crew’s general experience in lieu of ensuring
they
had
specific
safety training , including the
very
training contemplated by
ECE’s
own
safety
program.

On January 13, 202 0 , the Crew
committed several
unsafe acts, including two midspan excursions without appropriate PPE.

The Crew’s conduct is
evidence of ECE’s failure to comply with the standard . ECE
simply
did not
ensure that the
Crew
was prepared
to deal
with either a routine equipment failure or a
related
emergency
situation
at the location of the Worksite Incident .

3. Eustis Knew ,
   or
   with Reasonable Diligence,
   Could Have
   Known that it Did Not
   Ensure the Crew Was Properly Trained .

It is well-established Commission law that an employer will be charged with knowledge of a hazard if it knew, or with the exercise of reasonable diligence could have known, of the presence of the violative condition.

Astra Pharm. Prods. ,
1981 WL 18810, at *4. Reasonable diligence involves consideration of several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards, and to take measures to prevent the occurrence of violations.

Danis Shook
Joint Venture XXV ,
No. 98-119 2 , 2 001 WL 881247, at 5
(OSHRC, Aug. 2, 2001)
(citing
Pride Oil Well
Serv. ,
No. 87-692 , 1992 WL 215112, at 6 ( OSHRC, Aug. 17 , 1992) ).

T he actual or
constructive knowledge of the employer ’ s foreman or supervisor can be imputed to the employer.

( Id .)

Where, as here, the alleged violative condition is inadequate training of employees , employer knowledge of the violative condition
“ will almost invariably be present.”

Compass Env ’ t l , 663 F.3d at 1168 .

E CE admits that it has no rules on midspan work,
including o n the
frequent ly encountered
problem
of a malfunctioning lasher
w hich
the Crew encountered on January 13, 2020.

( Tr.
222-25 ; Ex.
46 at
5,
11).

Further, both
witnesses who ECE identified as having oversight over the Crew during the requisite period ,
PM
Becker
and
F oreman
C ole ,
admitted
at
trial
that they had
not
received
a ny i nstruction on
how to address malfunctioning lashers
from ECE .

( Tr.
125-26 ,
362-64 ) .

PM
Becker
also testified that he did not provide such training
at orientation or otherwise .

( Tr.
362, 417 ).

Foreman
Cole
specifically stated that he did not provide such training to
AJ . (Tr.
99 ,
127,
190,
352 , 418 ) .

Th e fact that
ECE
failed to train
PM Becker and Foreman Cole
in
the “precautions and safe practices”
relevant to a known and frequent problem that occurs during aerial line work
“ establishes that
[ECE]
had at least constructive knowledge of the inadequacy of its training program.”

Pressure Concrete , 1992 WL 381670, at *8 .

T hese
supervisors
“could not be reasonably expected to instruct”
the Crew
“on matters or hazards about which
[they themselves]
had not been taught , ”
nor could
AJ .

( Id. ). E ach of the supervisor’s knowledge of “ his own actions or inactions may be imputed to” ECE.

Pride Oil ,
1992 WL 215112, at *6 .

Finally,
the lack of
instructions
on the
specific
hazard the Crew
expectedly
anticipated and encountered on January 13,
2020
is
just
an
example of
the deficiency of ECE’s
implementation of its
safety program.

The a bsence of
a
job
hazard assessment, worksite walk-throughs ,
and documentation of
formal
training
relevant to the work, all of which
are
required by
its own
written
safety program,
underscores
ECE’s
constructive knowledge of th e inadequacy of its training program.

(Sec’y P ost
H r’g
B r.
at 28-29). N .
Y .
State Elect. & Gas , 88 F.3d
at
105-06 (“constructive knowledge may be predicated on an employer’s failure to establish an adequate program to promote compliance with safety standards.”) .

4. The Crew
   Had Access to the Violative Condition.

Employee exposure is established when workers are
“ actually exposed to
the violative condition (through injury or death) or that it is reasonably predictable they have been or will be in the zone of danger posed by the condition.”

Armstrong Util s . , Inc .,
D/B/A Armstrong Cable Serv s. ,
No. 18-0034,
2021 WL 4592200, at *3 ( OSHRC, Sept. 24,
2021) .

In this case,
the violative condition is the lack of training or specifically,
“proper
training ” on
“precautions and safe practices”
when,
inter alia ,
accessing and
working
midspan
without a bucket truck.

E xposure is established because ECE’s employees were engaged in
telecommunications field work ,
accessing
and repairing a stuck lasher
at
about
twenty
feet ,
without first receiving required training
on how to safely access working heights .

Bardav , Inc., d/b/a Martha’s Vineyard Mobile Home Park ,
No. 10-1055 ,
2014 WL 5025977, at *10 ( OSHRC, Sept. 30 , 2014)
(exposure established where employees
were
performing excavation work without first receiving training) .

5. Item 2 Was Properly Classified as a Serious Violation of the Act .

ECE’s failure to ensure that the Crew had received
proper training under the telecommunications standard before engaging in covered work qualifies
as
a
serious violation of the Act.

(Tr. 633). A violation is properly characterized as “serious” if there is a “substantial probability that death or serious physical harm could result” from the cited conditions.

29 U.S.C. § 666(k).

This provision “does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, tha t
a serious injury is the
likely result should an accident occur.”

Pressure Concrete ,
1992 WL 381670, at *9 .

At
trial , CSHO Willibey testified that without proper training,
including
on
common midspan work,
ECE exposed its employees , including
AJ
and
[redacted] ,
to a risk of
falls of
twenty
or more feet ,
which was
both
the approximate height of the strand at the
Incident
Worksite and
throughout the project , as well as caught-in hazards .

(Tr.
382-83 , 632-33 ;
Stip.
21 ) .

Th e fact th at falls of
twenty
or more
feet
can lead to serious injury
and death is a well-established
and uncontested
reality .

Brady Socal, Inc. ,
No. 18-1584,
2020 WL 6532732, at *18 ( OSHRCALJ, Sept. 25,
2020)
(serious physical harm or death could result from falls of
twenty-one
feet).

( E x.
56
at 18,
19 ) .

CO Willibey testified that falling 20 to 25 feet typically resulted in either
permanent
disability or death.

(Tr. 633). Further, t raining violations, including those involving falls, are routinely upheld as serious.

See, e.g. ,
Pressure Concrete ,
1992 WL 381670, at 9
(upholding violation of training standard as serious) ;
Pride Oil ,
1992 WL 215112,
at * 10
(oxygen
deficient atmospheres );
Todd Joseph Prop s . ,
No. 11-0822 , 2012 WL
891080 , at 4
( OSHRCCALJ, Jan. 17 ,
2012)
( fall protection training ) ;
Tower Painting Co., Inc. ,
No. 07-0685 ,
2008 WL
4697060 , at * 5 , 11
( OSHRCALJ, Sept. 2 , 2008) ( respirator training) .

ECE’s failure to
ensure the Crew had received proper
instruct ions
about
midspan work, including emergencies related thereto,
result ed
in serious
injury or death .

AJ
lost his life on January 13, 202 0 ,
when he attempted to reach and repair a
common
equipment malfunction
that typically
occur s
midspan
or
at
a height at about eighteen to
twenty
feet .

( Stip.
Nos.
21 , 25;
Ex. I at
335 -36, 347 ) .

Though he did not fall
to his death ,
AJ
was exposed to
severe
falls as he traversed the strand without any PPE.

[redacted]
was
likewise
subjected to risk of serious injury or death
when he repeated
AJ ’s steps, while also holding a machete, in an unsuccessful attempt to save
AJ ’s
life.

( Ex. 6 4
at
¶¶
28- 32 ) .

C.    ECE V iolated
29 C.F.R. §
1910.268(e) by
F ailing to
P rovide and Ensure the Use of the Tools and PPE the Crew Needed to Perform Midspan Work Safely at the Incident Worksite.

ECE violated Citation 1, Item 3 because it failed to provide the Crew with and ensure its use of the “[p]ersonal protective equipment, protective devices and special tools needed for the work” it was assigned to perform on January 13, 2020.

29 C.F.R. § 1910.268(e). 60

PM
Becker
assigned
AJ ’s crew to lash cable at an offroad worksite in the woods ,
where he knew
that :

1)
the odds of lasher malfunction were heightened due to certain known environmental conditions and
2)
the Crew could not use a bucket truck to address any such issues.

( Tr.
209,
364-6 8 ; Stips. 14-20; Ex. 58A) .

Nei ther he nor
AJ
provided the Crew with or ensured its use of either the tools or personal protective equipment it needed to safely address a lasher malfunction from the ground ( e.g. , sufficient layup sticks) or from a working height ( e.g. , a ladder or a combination climbing/fall protection harness).

(Tr. 581 , 628 ). When the lasher malfunctioned midspan
about
twenty
feet above ground, ECE’s failure to provide and ensure the use of the tools and PPE necessary to access and repair the machine safely exposed the Crew to
s erious injuries and death.

1. The Cited Standard Applies.

As set forth above, the parties stipulated that “the work at issue in the citation” ,
lashing fiberoptic cable to an existing support strand ,
“constitutes ‘telecommunications field installations’ as defined by 29 C.F.R. § 1910.268(a).”

( Legal
Stip. No. 9 ,
Stip. No.
14 ) .
Accordingly, the cited standard, 29 C.F.R. § 1910.268(e) (Tools and personal protective equipment), applies and ECE was required to comply with its requirements.

2 . Eustis Did Not Provide or Ensure the Use of the Tools and PPE the Crew Needed to Complete its Assigned Work at the Incident Worksite.

On January 13, 2020, the Crew both anticipated and eventually encountered an equipment malfunction midspan at
about
twenty
feet.

( Tr.
222-25 ,
234 ). Exhibit 16
shows
where the lasher stopped working . (Ex. 16).

Due to the location of the Incident Worksite ,
in a wooded easement several hundred yards from the road way ,
the Crew needed tools and PPE with which to access and address the malfunction without a bucket truck
in order to
complete the assigned job .

( Ex. I at 335 ).

As VP Bauer
conceded
the day after the
I ncident, “ I think what was throwing [ AJ ] a little was the fact that there was a pond there and you just didn’t have….
another set of tools.”

(Tr. 606;
Ex s .
41,
6 1
at
34 ) .

As set forth below, the Crew needed either a ladder or a combination climbing/fall protection harness with which to access the machine at working height ,
or alternatively, at least
the normal complement of
four layup sticks to do so from the ground.

The Crew
did not
possess
or use
four layup sticks
at the
Incident Worksite. 61

(Tr. 581 , 628 ).
M aking required PPE “available ‘on request’” does not constitute compliance with a standard that, like the cited standard, requires that PPE be used. Clarence M. Jones ,
d/b/a C. Jones Co.,
No. 77-3676 ,
1983 WL 23870, at *3 ( OSHRC, Apr. 27 , 1983) (affirming violation where hardhats and goggles were available for use on site) .

T he fact that a ladder and
additional
layup sticks may have been “available from” the Belmont office, located some “25 minutes away from the site” , does not satisfy the standard’s requirement.

(R esp’t Post Hr’g Br.
a t 2, ¶ 5, 3 a ¶ 11). See
United Geophysical Corp. ,
No. 72-6265,
1 981 WL 18807, at *7 n.13 ( OSHRC, Jul. 28 , 1981) (“[P]rotective equipment kept at a central location as much as 30 miles away from the jobsite, as in this case, cannot be considered available for use by the employees at the site.”).

According to
PM
Becker, the “number one best” way to address a malfunctioning lasher ,
regardless of whether it has flipped over or gotten stuck ,
at
an offroad worksite
such as
the Incident Worksite, is a ladder.

( Tr. 413 ; Ex. 55 ) .

PM
Becker
testified that
at the Incident Worksite, the Crew would just have to set the ladder up, stand it straight, lay it up against the strand, climb up the ladder, take the safety off the lasher ,
and “deal with the lasher.”

(Tr.
368-70 ) .

PM
Becker and
[redacted]
agreed that use of a ladder at the Incident Worksite was feasible. 62

( Tr.
271,
327-29 ,
368-70 ) .

[redacted]
told Bauer that he thought that
AJ
would have got a ladder from the truck if the truck had one. (Tr. 271 -72 , 276-77 ;
Ex. 46 at
5- 6 (Resp. to Interrog.
Nos.
13,
18 , Ex. 53 ) .

ECE stipulated that the truck it assigned to the Crew ,
a new truck which ECE issued to the Crew the day before the Incident, was not equipped with a ladder.

( Stip. No. 1 ) . ECE has trucks equipped with ladder racks at the Belmont Field Office, including some, but not all,
tru cks used by aerial line crews.
( Tr.
1 24 ,
209 , 399) .

On January 13, 2020, the Crew did not carry a ladder with it.

( Tr. 209 , 399).

At
trial , testimony from each of the ECE witnesses made clear that, in the absence of a ladder, an aerial line crew can use layup sticks to address a midspan-equipment malfunction
from the ground.

( Tr.
1 20, 146 , 412-13) .

On January 13, 2020, using layup sticks from the ground was the Crew’s first attempted solution.

( Tr. 234-35 ) .

Using layup sticks may have worked, but the Crew
only had
only three sticks on the truck that day.

( Ex. 6 1
at 23 ) .

The three sticks were fewer than the amount crews typically bring with them
to
worksites;
i.e. ,
four sticks measuring at
least twenty-one feet.

( Tr.
121-22,
382-83 ).

T hree
layup
sticks were not enough to reach and repair the lasher.

( Ex. 6 1
at 22-23 ) .

To reach the lasher and get enough leverage to push it back on the line, the Crew
n eeded
at least
four
layup
sticks.

(Tr. 121-22, 236;
Ex. 6 1
at 23 ).
Given that ECE knowingly did not provide its aerial line
Crew
with ladders or sufficient layup sticks for their work on January 13, 2020, ECE
did not
ensure the use of the tools and PPE necessary to do the assigned work.

(Tr. 635-36). S ee Jones , d/b/a C. Jones Co. , 1983 WL 23870, at 3
(“Our cases make clear that merely having protective equipment available at a worksite does not satisfy a standard that requires that this equipment be used ”);
Custom Built Marine Constr., Inc. , No. 11-0977, 2012 WL 6737159, at 3 (OSHRC, Dec. 20, 2012) (standard
requiring that eye protection worn in certain circumstances violated where company “had protective eyewear available at its worksite [but] left the decision regarding use of this safety equipment up to its employee, who chose in this instance not to wear eye protection despite the potential for injury.”).

CO Willibey testified that AJ would not have been exposed to caught-in and fall hazards had he had the tools needed to fix the lasher from the ground. (Tr. 634-35).

A erial linemen can, and do, access difficult-to-reach equipment midspan by traversing the s trand in an unsafe manner .

They may do so by sliding down the line,
“ hand over hand ” ,
as
AJ
and
[redacted]
did on January 13, 2020.

( Ex s .
53,
6 1
at
44 ). At
trial , CSHO Willibey testified that there is a n alternate
safe way to traverse the strand.

( Tr.
617 ) .

It requires using certain personal protective equipment that will prevent falls,
e.g. , either a combination
climbing/fall protection harness, or a cable sled
(also known as a splicing platform) . (Tr.
617,
623-24 , 627-28 , 682 ) .
ECE did not equip the Crew with any of the above equipment
needed to
traverse the strand in a safe manner .

As VP Bauer said to crewmember
[redacted]
the day after the Incident, “You don’t have the gear for”
a midspan excursion.

( Ex. 6 1
at 30 ) .

That testimony is consistent with what CSHO Willibey learned during his investigation.

( Tr.
388-89,
628 ) .

ECE does not provide line crews with such gear
because what
AJ
did , according to VP Bauer,
is
“ against the policies.”

( Ex. 6 1
at 30 ) .

But,
ECE had no such policy.

(Sec’y P ost
H r ’ g
B r.
at 28-38). CO Willibey testified that the danger of using the wrong kind of, or inadequate, equipment as AJ and
[redacted]
had done caused exposure to caught-in and fall hazards. (Tr. 634). He stated that if AJ had been wearing a combination climbing and fall protection harness, he would not have been exposed to caught-in and fall hazards when he went out on the line wearing a climbing belt. (Tr. 634).

Accordingly, ECE failed to comply with the cited standard.

3.
Eustis
K new or ,
With Reasonable Diligence, C ould
H ave
K nown of the
V iolative
C ondition.

Ample record evidence demonstrates that ECE knew, or with reasonable diligence, could have known of the violative condition.

First, both
PM
Becker and
F oreman
AJ
had actual knowledge of the violation because they knew that the Crew’s assignment on January 13,
2020
would require it to perform aerial line work without a bucket truck, meaning they would need a ladder, or some alternative means to reach
“elevated positions” .

29 C.F.R. § 1910.268(n)(8).

Yet neither supervisor ensured such equipment was provided or used that day.

Second,
F oreman
AJ
knew that he did not use such equipment to reach and repair the lasher at the Incident Worksite.

As the project manager and a foreman working in their supervisory capacities,
PM
Becker’s and
Foreman
AJ ’s
actual knowledge is imputable to ECE.

Danis Shook , 2001 WL 881247, at *5 .

Further,
the numerous inadequacies of ECE’s safety program,
at a minimum , demonstrate
ECE ’s
constructive knowledge of the violative condition.

a.
ECE had actual knowledge of the violative condition .

During ECE’s work on the Armstrong Project, at the start of each workday, ECE’s aerial line crews met up at the company’s Belmont Field Office
and picked up their trucks,
tools
and PPE .

( Tr.
317 ) .

The
C rew ’s Foreman AJ (among others)
was responsible for the Crew’s
truck,
and
he
made decisions about the equipment on the truck.

( Tr.
95 -96 ,
134;
Ex. 6 1
at 7-8 ) .

PM
Becker
was in charge of
issuing work
to the Crew .

( Tr. 342-43 ) .

Typically, the foreman got
the daily assignment in the form of a map or “print,” that showed information about the day’s worksites,
including whether they were roadway accessible and whether there were any unique environmental conditions such as bodies of water.

( Tr. 92, 317 ;
Ex. 58 ) .

On January 13, 2020, the print
PM
Becker assigned
to
the Crew showed that nearly half of the day’s work would occur offroad, in an easement.

( Ex. 58 ) .

The print included
the Incident Worksite, where the Crew had been
within the prior month .

( Tr.
191-92 ; Ex. 61 at 10) .
The print
showed
a
pond
and an extra-long span between the poles on either side of it.

( Ex. 58A ) .

According to crewmember
[redacted] , these environmental conditions meant that the Crew was more likely to encounter a routine problem endemic to the type of work at the Incident
Worksite ;
i.e.
lasher malfunction.

( Tr.
222-25 ) .

A s both
PM Becker and
[redacted]
agreed,
lashers are more likely to
fall off
the strand
when the ground hand cannot keep tension under the line,
such
as
when
the lasher moved across the
pond .

( Tr. 222-25,
3 6 7-38 ) .

When this type of malfunction occurs offroad, like at the Incident Worksite, aerial line crews cannot use the bucket truck to reach working altitude to reach and repair the machine.

( Tr.119-121, 124,
209,
364-65,
413 ;
Ex. 46 at 5 (Resp. to Interrog.
No.
18),
at
11-12 (Resp. to
RFP
No.
34) ) .

Per
PM
Becker, a ladder is “the number one best way” to reach and repair a malfunctioning lasher in an easement.

( Tr. 413 ;
Ex. 46 at
5-6
(Resp. to Interrog.
Nos.
13,
18) ) .

Yet, it is undisputed that
ECE provided n either a ladder nor a combination climbing/fall protection harness
to the Crew, who instead improvised to reach heights and ultimately traversed the strand without any PPE.

(Tr. 581 , 628 ).

b.
ECE had Constructive Knowledge of the Violative Condition .

The
record also establishes ECE’s constructive knowledge of the violative condition.
Reasonable diligence includes “reasonable
efforts to anticipate the particular
hazards to which its employees may be exposed in the course of their scheduled work.”

Automatic Sprinkler Corp.
of Am. ,
No. 76-5089,
1980 WL 10595 ,
at *7 ( OSHRC, May 9,
1980).

A n employer
“ must inspect the area to determine what hazards exist or may arise during the work before permitting employees to work in an area, and the employer must then give specific and appropriate instructions to prevent exposure to unsafe conditions. ”

( Id. )

“ A preliminary inspection must be made even where the employees are experienced. ”

( Id. ,
citing
J.H. MacKay Elec .
Co.
and U.S. Eng. Co. ,
No. 16110 , 1978 WL 7086, at *4
( OSHRC, Sept. 12 , 1978)
(consolidated) ). Thereafter, the employer has a “continuing” obligation to exercise diligence specific to the circumstances at the worksite.

Automatic Sprinkler Corp. , 1980 WL 10595, at *7.

Here, ECE failed to take such steps.

O n January 13, 2020 ,
the Crew
did not
inspect the Incident Worksite before starting work
there .

( Tr.
211-12 ). The Crew
parked the truck and walked right to Pole A.

(Ex. 58A). H ad
AJ
conducted
a
“ walk - through ” of the
Incident
Worksite ,
a step
required by ECE’s
own
S afety
M anual ,
they
w ould have discovered
that
five feet of the
mule tape was frozen in the
pond
before
AJ
attached
the mule tape
to the
lasher .

(Tr. 231;
Ex s . 6 1
at
17-18 ,
C at 0108 ) .

See also
Automatic Sprinkler Corp. , 1980 WL 10595, at *7 (finding constructive knowledge based on failure to insp ect ).

With out
this
knowledge, the
Crew
us ed
wood
they found in the woods
to free
the mule tape from the ice while it was attached to the lasher
that
further increased the already heightened likelihood of
a midspan
lasher malfunction
at the Incident Worksite ,
and with it ,
the need for tools
and PPE the Crew did not have .

(Tr. 222-25, 231;
Ex. 6 1
at 17-18 ).

T he “real problem was that [ECE] had failed to implement adequate work rules
and training programs to ensure that [ the Crew ] had been informed of the appropriate
safety considerations.” 63

Pride Oil , 1992 WL
215112 , at *7
(finding constructive knowledge) .

ECE’s safety program and implementation thereof
was
deficient
by an
absence of relevan t, required
training.

(Sec’y P ost
H r ’ g
B r.
at 28-38). ECE “did not have a work rule that required the use of [certain tools and] PPE in the circumstances that confronted” the Crew at the Incident Worksite .
See
Danis Shook , 2001 WL 881247, at *5
(rejecting instructions to “wear PPE ‘as needed’ ”. I nstead ,
ECE
relied on vague
instructions ;
e.g. , “ Use proper PPE for a give [sic] task and don’t perform any work that is unsafe ”
which did
“not explicitly address the need for employees to wear PPE” and/or use
of
certain tools when performing midspan work at offroad worksites.

( Ex. 46 at 11 (Resp. to R eq.
F or
P roduc.
Nos.
30, 34 ) ) .

ECE did not take all
available
precautions to
prevent employee exposure
to the hazard s .

On January 13, 2020,
ECE had two opportunities to take steps to anticipate ,
discover
and prevent exposure to
hazards
at the Incident Worksite
and missed both :

f irst,
upon receipt of the print
at
the
Belmont Field Office ,
and next,
upon arrival to the
Incident
Worksite .

(Sec’y P ost
H r ’ g
B r.
a t 4 4 -48).

4.
The Crew Had Access to the Violative Condition.

Foreman
AJ
and
lineman
[redacted]
were
actually exposed
to fall and caught - by hazards when, without the tools and PPE needed to perform midspan work at the Incident Worksite, they climbed up
about
twenty
feet on a utility pole, rigged their tool belts as seats and traversed 20-30 feet along the support strand, hand over hand.

(Tr. 634).

(Sec’y P ost
H r ’ g
B r.
at 41-42) .

5.
Item 3 Was Properly Classified as a Serious Violation of the Act .

OSHA
classified
Item 3
as a serious violation of the Act.

(Tr. 633-34). Violations based on the absence of required PPE are routinely affirmed as serious.

See, e.g. ,
Jake Heaton Erecting
Co.,
Inc.,
No. 76-1309 , 1977 WL 7762, at *1 ( OSHRC, Sept. 28 , 1977) (serious violation where foreman failed to use safety belt on
twenty - foot roof) .

CSHO Willibey testified that without the tools and equipment necessary to reach and repair a n
equipment malfunction that occurs at midspan at
twenty
feet, ECE exposed the Crew to serious injuries and death.

( Tr.
63 3 -34) .

Here, one employee lost his life while attempting to make the repair without appropriate tools and PPE from
twenty
feet and another nearly died by repeating the exact same steps
in an effort to
rescue
AJ .

( Ex. 6 1
at
57- 59,
61-63 ) .

Accordingly, the classification of Item 3 is appropriate and
is
affirmed.

IV. THE PROPOSED PENALTIES ARE APPROPRIATE .

The Commission has authority to assess civil penalties for violations of the Act.

In doing so, the Commission looks to four statutory factors:

the employer’s size, the violation’s gravity, the employer’s good faith, and the employer’s history of previous violations.

29 U.S.C. § 666(j) ;
accord
Revoli Constr. Co., Inc. ,
No. 00-0315 ,
2001 WL 1568807, at *11
( OSHRC ,
Dec. 7,
2001) . Among these factors, gravity is the “primary element.”

See
Contour Erection & Siding Sys. Inc. ,
No. 06-0792 ,
2007 WL 4463127, at *4
( OSHRC ,
Dec. 13,
2007) .

In this case, OSHA proposed an appropriate penalty for Citation 1, Items 2 and 3, and applied the same analysis to both items.

The severity of the potential injury was determined to be “high” based on both the kind of injuries that could result from falls from
twenty
feet and the fact that a death occur red .

( Tr. 636-37 ) .

The probability or likelihood of an injury occurring was deemed to be “greater” because a fatality occurred.

(Tr.
63 6 -38 ) .

A l though
[redacted]
survived
sliding along the stand , he put himself at great risk by repeating
AJ ’s steps.

( Ex. 6 1
at
57-59, 61-63 ) .

Accordingly, this generated a determination of “high/greater” gravity-based penalty of $13,490.

( Tr. 639 ;
Exs. FF and GG ) . 64

OSHA adjusted the gravity-based penalty.

Specifically, as CSHO Willibey explained
at trial , ECE received a 10% reduction for employer size.

( Tr.
639-40 ) .

However, ECE did not receive a reduction for good faith because a fatality occurred ,
which rendered it a high gravity violation.

( Tr. 640 ).

ECE also did not receive an adjustment for history because ECE had an
OSHA
inspection in the five years prior to the
Worksite
Incident that resulted in a final order involving serious items.

( Tr. 640 ) .

Accordingly, OSHA proposed an adjusted penalty of $12,145 for each item.

( Tr.
9, 12,
640-41 ) .

The
Court finds that the
proposed penalties are appropriate and
are
upheld.

ECE is cognizant that it works in “an inherently dangerous industry.”

( Ex s .
56
at
1 8 ,
C at 130 ). As an aerial line crew, the Crew’s work involved accessing heights of
twenty
feet or more daily.

( Tr.
94, 100-05,
382-83 ,
637-38 ;
Ex s .
3,
C at
130 ). ” ).

According to ECE, such work “routinely” includes midspan work ,
such as but not limited to the lasher malfunction the
C rew encountered on January 13, 2020.

( Ex. 46 at
10 -11
(Resp. to
R eq.
F or
P roduc.
Nos.
27, 34) ) . About half of such work on the Armstrong Project occurred in offroad worksites like the Incident Worksite, where a bucket truck could not be used to reach working altitude and perform such a repair.

( Tr.
1 19 ) .

Yet, ECE sent this Crew out into the field to perform aerial line work unprepared both in terms of
training
and equipment to address the conditions they anticipated and encountered on January 13, 2020.

ECE lost one life and nearly lost a second on that day.

On these facts, $24,290 is an appropriate
total
penalty
for both items .

V. ECE
DID NOT
P ROVE ANY OF ITS DEFENSES .

In its Answer to the Second Amended Complaint, ECE pled the

“A ffirmative
D efenses ”
of :

“Infeasibility, U npreventable employee misconduct
(UEM) ,
G reater hazard,
A ssumption of
the
risk ,
and
S uperseding cause . ” 65

( Answer
to Second Am .
Compl .
at
2 ;
J . P re-H r ’ g St ate m en t at
8,
§ 6 ) .

Many of these defenses were not raised further at trial or in
ECE’s
Post-Trial Brief. Affirmative defenses not raised at the trial are deemed waived and abandoned by Respondent.

Corbesco, Inc. v. Dole,
926 F.2d 422, 429 (5th Cir. 1991) (Affirmative defenses not argued waived);
Ga.-Pac. Corp.,
No. 89-2713 , 1991 WL 132732 , at *3
( OSHRC, Jun. 28,
1991) (“Commission declines to reach issues on which the aggrieved party indicates no interest.”).

In its Post Hearing
Brief,
ECE
briefly discussed the UEM
as an
affirmative
defense. ECE asserted:

The
employee,
[name redacted] ,
knowingly
engaged in
an
unsafe
practice.
He
did
so
in
violation
of
ECE
rules.
The
rule
is
clear
that
PPE,
like
climbing belts, are to be used for their intended purposes. Climbing belts are not intended to be used as bosun’s chairs. This is particularly true since
[name redacted]
knew that his decision was an unsafe one and
that
other,
safer,
albeit
slightly
slower,
choices
were
available
to
him
at
the
time
of
his
accident.

(R esp’t
P ost
H r ’ g
B r.
at 13).

UEM is the one affirmative defense that ECE has not abandoned. ECE has not met its burden as to this affirmative defense. Any purported “rule . . . that PPE, like climbing belts, are to be used for their intended purpose,” is too general and was not “designed to prevent the hazard.” (R esp’t
P ost
H r ’ g
B r.
at 13, ¶ 10).

Danis Shook , 2001 WL 881247, at 5-6 (rejecting defense despite “general rule requiring employees to wear PPE ‘as needed[]’”) ;
Superior Custom Cabinet , 1997 WL 603024, at 5 (denying defense despite unwritten rule to call the office if delivering to the second floor was “unsafe” because it “gave employees too much discretion in identifying unsafe conditions….”);
Automatic Sprinkler Corp. 1980 WL 10595, *7 (“the formulation and communication of a general work rule is not enough”).

Moreover, ECE’s written safety materials mandate formal training on the use of positioning devices like belts, and
it is clear that such
training was not provided to the Crew.

(Ex. C at 0045;
Sec’y P ost Hr ’ g
B r. at
24-36).

Because ECE took inadequate steps to prevent the
two
midspan excursion s , it
cannot prove
that the violation was unpreventable.

To establish unpreventable employee misconduct, an employer is required to prove:

“(1) that the employer has established work rules designed to prevent the violation; (2) that it has adequately communicated those rules to its employees; (3) that it has taken steps to discover
violations; and (4) that it has effectively enforced the rules when violations have been discovered.”

Precast Servs. ,
Inc. ,
No. 93-2971,
1995 WL 693954 at 1 ( OSHRC ,
Nov. 14,
1995)
(quoting
Nooter Constr. Co. ,
No. 91-0237, 1 994 WL 27750 at 6 ( OSHRC, Jan. 31,
1994)),
aff’d , 106 F.3d 401 (6th Cir. 1997); s ee also, Capform, Inc. ,
No. 91-1613 ,
1994 WL 530815 at *3 ( OSHRC, Sept. 29 , 1994).

In order to
prevail on the defense of unpreventable employee misconduct, ECE must prove each of the elements of the defense.

On this record, ECE
is unable to
do so and thus, the
UEM
defense fail s .

A. ECE Cannot Establish UEM as a Defense to Item 2.

Item 2 alleges that ECE failed to provide
training in the various precautions and safe practices set forth in ECE’s telecommunications standard, including those involving working safely at working altitude .

T he cited standard require d
ECE to ensure that such
safety training
has been provided ,
by ECE or “prior to employment” ,
before
it allow ed
the Crew, including
AJ ,
to engage in covered work.

29 C.F.R. § 1910.268(c).

T he violation
cited in item 2 is
based not on
AJ ’s actions on January 13,
2020
at the Incident Worksite , but on
the actions of
those
responsible for
providing training to new employees.

A ccordingly, for ECE to succeed in its affirmative defense of unpreventable employee misconduct as to Item 2, as a threshold matter, it would have to show that the person in charge of
ensur ing
the
Crew
had such training,
failed to
do so .

See CMC Elec .,
Inc. ,
No. 96-169 ,
1999 WL 261189, at 3 ( OSHRC, Apr. 26,
1999),
aff’d in relevant part on other grounds , 221 F.3d 861, 865-66 (6th Cir. 2000);
Capform , 2001 WL 300582, at 4.

ECE makes no such claim .

In stead , it
relies
solely
on the
in appropriateness of
AJ ’s conduct .

( R esp’t . P ost
H r ’ g
B r.
at 13;
J .
Pre-Hr ’ g St ate m en t
at 8, § 6 ).

T he
UEM
defense fails as to Item 2.

A. ECE Cannot Establish UEM as a Defense to Item 3.

Item 3 alleges that ECE failed to provide tools and PPE needed to reach and repair a common equipment malfunction that typically occurs midspan at
about twenty
feet, a condition that was both anticipated and encountered at the Incident Worksite. ECE
has not met
its burden. ECE admits that it has no specific rule with respect to midspan work ,
including the tools and PPE to use in lieu of a bucket truck when a lasher malfunctions offroad,
and instead relies
on vague PPE instructions
that give too much discretion to employees and are “too general to be effective.”

( Ex. 46 at 11 (Resp. to R eq.
F or
P roduc.
Nos.
29-30, 34) ) . See
S uperior Custom Cabinet
Co ., 1997 WL 603024, at *3.

The evidence also shows that ECE provide d
no training on midspan excursions
and
a ny instructions relevant to the routine problem of a stuck lasher
were
ineffective .

(Sec’y P ost
H r ’ g
B r.
at 28-39).

ECE witnesses disagreed
at
the trial
about what was the “best” or “easiest” way to address the situation the Crew encountered. ( Tr. 146 ,
237 ,
413 ;
Ex. 6 1
at
29 ).

ECE witnesses
also
provided inconsistent testimony about what was entailed in the various methods
they claimed to be viable .

(Tr. 312-13, 380-82). Such
incoherence
undermines any argument about the existence of any unwritten procedures
to follow when this problem occurs,
as well as the effectiveness of any communication of the same.

See, e.g. ,
Davis H. Elliot Co. , 2017 WL 3217818, at *45 (Rejecting UEM because “[w]ith no established rule and only on-the-job training, there was no consistency of the procedures or methods that were conveyed to employees….”). T o the extent ECE provided any instructions on the proper
tools and
equipment to use to address the circumstances the Crew encountered on January 13, 2020, it was both too general and left too much discretion to employees to be effective.

Superior Custom Cabinet , 1997 WL 603024, at *3.

Where, as here, an employer’s “precautions against the use of [equipment] by employee were inadequate, the company fail[s] to prove that the violation was unpreventable.”

Automatic Sprinkler Corp. ,
1980 WL 10595, at *7
(rejecting UEM) .

A n employer “cannot fail to properly train and supervise its employees and then hide behind its lack of knowledge of their dangerous working practices.”

Pride Oil ,
1 992 WL
215112 , at * 8
(quoting
Danco Constr. Co.
v. OSHRC ,
586 F.2d 1243, 1247 (8th Cir. 1978) ) .

“ A n employer who has failed to address a hazard by implementing and enforcing an effective work rule cannot shift to its employees the responsibility for assuring safe working procedures.”

Pride Oil ,
1992 WL
215112 , at * 8
(citing
Stuttgart Mach .
Works, Inc. ,
No. 77-3021 , 1981 WL 18841 , at 4
( OSHRC, Feb. 24,
1981)) ;
Davis H. Elliot Co. ,
2017 WL 3217818, at 45 (same) ;
Pressure Concrete , 1992 WL
381670
at * 6
( rejecting argument that dangerous conditions at issue were “ob vious and a reasonable employee would be aware of” them and “act accordingly” because it “erroneously places the burden on employees to be more aware
and alert than their employer….”).

It
is strong evidence of lax enforcement of the employer’s safety program ,
where, as here, a “supervisor engages in misconduct and is exposed to the hazardous condition.”

Pride Oil , 1992 WL
215112 , at * 8 .

PM
Becker
conceded
that he
[Becker]
was “lax” when it
came to
some aspects of his
role in enforcing ECE’s safety
program such .

( Tr.
425 ) .

Specifically,
PM Becker
admitted that
there is no
field
truck
and safety
inspection
report
reflecting any inspection of
the Crew
during the
entire
time
AJ
worked for ECE, even though
he
[Becker]
also admitted that he
[Becker]
was supposed
make a
crew
report
weekly .

( Tr.
425-26 ) .

T here is no evidence that any such field inspections even occurred
in this three-month period .

On this evidence,
ECE’s effort to raise
UEM
as a
defense
to liability
fails.

The Court finds
that
all of
ECE’s
defenses
raised in its Answer to the Second Amended Complaint
are rejected because they either lack merit or have been abandoned, or both.

Citation 1,
Items 2 and 3 ,
are affi rmed.

V I . FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See
Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

VII.

CONCLUSION

As discussed above, the elements of applicability, employee exposure, violation and knowledge of the cited conditions are proved as to both items.

VI II . ORDER

Based upon the foregoing findings of fact and conclusions of law,

IT IS ORDERED that:
Citation 1, Item
2 , alleging a Serious violation of 29 C.F.R.
§   19 10 . 268 ( c ), is AFFIRMED and the Court assesses a penalty in the amount of $ 12 , 145 ; and

IT IS FURTHER ORDERED that: Citation 1, Item
3 , alleging a Serious violation of 29 C.F.R. § 19 10 . 268 ( e ), is AFFIRMED and the Court assesses a penalty in the amount of $ 12 , 145 .

SO ORDERED.

/s/                  

The Honorable Dennis L. Phillips

U.S. OSHRC Judge

Dated:
November 10, 2022

Washington, D.C.

"

1
Unless identified as a “Legal Stip.” all references to “Stip.” alone are to fact stipulations.

2
The program is referred to as the “New NY Broadband Program . ”
( Ex. 46 ) .
The fiber was used to distribute communication,
internet,
and telephone to homes. (Tr. 102).

3
Foreman Cole testified th at when
you place a strand, you place the fiber on top of the strand for the communication. He said lashing includes fiber work.

(Tr. 100).

4
PM Becker worked in the telecommunications installation industry for forty-seven years before retiring
during which time he climbed a lot
of telephone
poles and used a lot of lashers .

(Tr. 391 -92 ).

5
Mr. Dodd is also referred to a s
Jeremy Do dson in the trial transcript.

6
A photograph of the
white
mule tape
used to pull the lasher on the day of the incident is at Exhibit 7
to the right of the yellow rope shown in the photograph . VP Bauer testified that mule
tape
is a lightweight, high tensile strength rope that is flat and somewhat rectangular that is used a lot in the industry. He said lasher ropes are mostly only about 40 to 50 feet long and ECE uses mule
tape
if it needs to go over a pond, steam, or mobile home park.

[redacted]
testified that mule
tape
was made of nylon. He said that it was “really strong” and “unbreakable.” The Crew used “mule tape”
that had been hung and left in place on the west side of the lake from
on a prior visit to the Incident Worksite. VP Bauer believed that the Crew had been at the Incident Worksite before, and
specifically
that AJ had been at Incident Worksite three times before. [redacted]
was not sure whether
AJ
had pieced the yellow rope to the mule
tape ,
or “just put the muletape straight to the lasher”. The plan was
for a crewman positioned at the west side of the lake
to pull the
lasher across the lake
f r om Pole B to
Pole C
by
pulling the
mule
tape . (Tr.
215, 217, 219- 21 , 227, 232,
302 , 555-57, 583-84 ; Ex s .
7,
58A at
“B”,
“C” , “D” ).

7
Foreman Cole stated the “the line” refers to the strand or the complete strand with fiber. (Tr. 101).

8
PM Becker stated at his deposition that he was not familiar with a job hazard assessment form. (Tr. 359).

9
Foreman Cole testified that the photograph at
E xhibit 3 shows the support strand as the third line down
from the top where ECE performed its work on a pole .

(Tr. 104-05; Ex. 3). He also said that the bottom line shown at the photograph at
E xhibit 5 shows a fiberoptic cable at the bottom wire and a support st r and
above it . (Tr. 107-08; Ex. 5).

10
VP Bauer said
[redacted]
was not disciplined for sliding out on the strand
on January 13,
2020
because he was trying to save
AJ . He said both Messrs.
[redacted]
and
[redacted]
did not want
AJ
to go out on the line. [redacted]
was also not disciplined. (Tr. 561 , 574-75 , 584-85 ; Stip. No. 4 ).

11
The support strand is also known as the
“ wire , ”
the “ line , ”
the “ messenger cable” or
the “ string”.

( Tr. 100-10 5 ,
1 46 ;
Ex s .
3,
I at 34 2 ) .
[redacted]
testified that part of the lasher wraps “ the
fiberoptic cable
to the strand wire .”
(Tr. 302). Cole testified that
a lasher is the tool used to wrap the fiberoptic cable along the strand. (Tr.
101 ).

12
PM Becker
was in charge of
issuing daily work. (Tr. 342-43).

13
AJ’s
Employment Application to ECE is dated October 7, 2019. ( Tr. 532;
Ex. 56 at 1).

14
Foreman
Cole was an ECE employee at the time of the
Worksite
Incident and trial. He worked at ECE for about 22 years. (Tr. 88-90). He was not at the Incident Worksite at the time of the Incident. (Tr. 90).
Cole identified himself as a foreman/lineman on the Armstrong Project. (Tr. 92-93). Some people refer to Cole as a “senior foreman”, which he presumes is due to his length of time with ECE. (Tr. 137).

15
[redacted]
worked at Allen Cable, a company owned by E ustis Cable
in partnership with Mr. Cole, in Jamaica from 1994 to about 1999 . [redacted]
testified that he was trained on the job by Mr. Cole. (Tr. 294 , 418 ).

16
Mr.
[redacted]
was an ECE foreman when he testified at trial on April 26, 2022. (Tr. 177).

17
Mr.
[redacted]
used the word
“lake”
to describe the body of water
at the Incident Worksite, both
i n his statement to the police
on January 13, 2020 , and at hearing ,
until
Respondent’s
counsel
questioned the use of the word “lake ”
instead of “pond”
on the
annotated
Exhibit 58
(Ex. 58A
at “D” ) ,
at which point,
[redacted]
changed his testimony
of the “lake”
and referred to it as a “pond” .

( Tr.
192- 98 ; Ex s . I at 340 , 58A
at “D” ) .

The Court finds the use of “lake” or “pond” to describe the body of water shown in Exhibit 41 at the Incident
Worksite to
be immaterial to the outcome of the case. (Tr. 605-06; Ex. 41).

18
VP Bauer testified that “there was a lot of rivers and ponds and obstacles in western New York” and within the scope of the Armstrong project. (Tr. 581).

19
Mr.
[redacted]
testified that there are no ladder racks on the type of
new
truck , a T40,
that the
Crew
used at the Incident Worksite , or on the Crew’s old truck .

(Tr. 208-09).

VP
Bauer testified that T40 trucks typically do not have ladder racks. (Tr. 492).

20
Some lashing machines have a top gate and a back gate.

The former helps to hold the lasher on the strand to guide it down to the rubber rollers .

T he latter holds the
fiberoptic
cable in place. (Tr. 38 4-8 5).

The lasher the Crew used on January 13,
2020
had neither.

( Stip. Nos. 2-3 ) .

21
Layup sticks are a special tool made of fiberglass with a hook on the end. They come in six-f oot
and three-f oot
sections, which can be connected and used to reach heights. (Tr. 121, 382-83).

22
The Safety Manual called for the Crew to conduct a walk-through to identify sources of hazard.

(Tr. 22 ;
Ex. C at 110
at ⁋
C ) .

23
For ease of reference,
the Court has adopted
t he Secretary ’s assignment of a
paragraph number to each of the
35
statements
in
Exhibit 64 that begin with a “- ”.

24
[redacted]
said that [t]here’s a part on the lasher machine where you could put the lap
stick on and just put it
[ the
lasher]
on, back on the line” , but it was a bit harder to put the lasher back on if it had flipped over. (Tr. 304-05).

25
Foreman Cole
and
[redacted]
testified that the photograph at Exhibit 35 shows a lasher on a strand that looks upside down. (Tr. 112 , 278-79 ; Ex. 35).
Foreman Cole
identified two balls of lasher wire on the lasher
shown in photograph 35
that are used “to wrap the fiberoptic to the strand so it looks like one complete package instead of like where you have
those tw o
separate . When you’re done, instead of that gap in between, it wraps it and now it sits right on top of each other.” (Tr. 114-15).

26
PM Becker testified that it would have taken a “Half hour, 45 minutes” to get a ladder to the Incident
W orksite.
VP
Bauer testified that an employee could also call the closest crew to see if they could provide a ladder. (Tr. 493 , 555 , 684 ). He said ladders are readily available if needed by making a phone call to supervisors. (Tr. 557-58).

27
However, at trial
[redacted]
admitted that he had said in earlier deposition testimony:

“Q Would it have been possible to use a ladder to work on the lasher.

A Yes, we could use the ladder too.
…

Q Where would you have set it up?

A We would just set it up right underneath the lasher and it’s sort of kind of a hill sort of terrain, so the lasher would, you know –
…

Q Would a ladder have been
a
feasible
option
on this terrain .

A It’s half and half. I was saying it’s half and half. We could have used a ladder.

Q What’s the other half?

A It’s because the hill – because of the terrain, it was almost near the water. …

Q I don’t understand. What does the water have to do with the ladder.

A No. I say because of the hill the ladder will probably be a little more difficult to use, but we could use a ladder too. We could use a ladder.”

(Tr. 327 -2 9 ).

28
VP Bauer concluded that
AJ
made a “bad decision.” He said it’s inherently known in the industry not to do what
AJ
did. (Tr. 560 , 563 ).

29
Layup sticks are also sometimes referred to as “lap sticks . ”

( Tr. 236 ) .

30
Both
[redacted]
and
[redacted]
agree that the Crew had three layup sticks with them.

At
the trial ,
[redacted]
could not remember what combination of short and long sticks the Crew had . [redacted]
thought
each stick was about eight to ten feet long.

( Tr.
236,
382 ; Ex. 6 1
at 23) .

31
The Court finds that the Crew at the
Incident W orksite
only
had
three layup sticks that together measured between
15-18
feet in length. The Court further finds that this
smaller amount of layup sticks
was less than the normal complement of crews .

Typically
a crew would
hav e
four
layup sticks on their trucks that measured twenty-one feet in length
when joined . PM Becker
said crews normally attach the clamp to the
elongated
pole at around 18 to 21 feet
and
the layup sticks “just clip together.” ( Tr.
236,
382 -83; Ex. 61 at 23) .

32
PM Becker testified that it was an unsafe practice for an employee to climb a tree to get more height with the
three
sticks. (Tr. 384).

33
[redacted]
testified “That’s how we always – that’s the best way to do.” (Tr. 237).
[redacted]
testified that
AJ
“thought it would take a little more time.” (Tr. 237). On January 15, 2020,
[redacted]
told
CO Wil l ibey that
AJ
told him
AJ
chose to go out on the strand because
AJ
was
“just trying to go fast, and he knew better.” (Tr. 669-7 1 ; Ex. JJ at 5).

34
[redacted]
testified that
if he couldn’t reach the muletape,
AJ
“ could have used a lap stick to hold the muletape and
jus t
pull it towards him.” (Tr. 313).

35
PM Becker testified that if he had observed one of his crews using a
trash
can to get some extra height with the layup sticks, he wou l d have “Shut them down” because it would be an unsafe practice. (Tr. 383-84).

36
VP Bauer testified that
[redacted]
told him that “he emphatically asked
AJ
not to go out on the line, told him no.” (Tr. 593). On January 15, 2020,
[redacted]
told CO Willibey that he
hollered
to
AJ
to wait and not go out on the wire, but
AJ
was already out on the strand half - way to the lasher. [redacted]
told CO Willibey that
AJ
“flipped the lasher.” ( Tr. 665-66;
Ex. JJ at 2-3).

37
[redacted]
testified that ECE would not have permitted him “to go out on the line with some bosun’s chair jerry-rigged out of a climbing belt.” (Tr. 299). PM Becker testified it would be “just outrageous” for someone to shimmy across a strand on a jerry-rigged bosun’s belt to get to a lasher. (Tr. 413).

38
After descending his initial ascent up Pole B,
AJ
went back to the truck and left his climbing belt there.

( Tr. 232-33, 242 ) .

The photograph at exhibit O shows a climbing belt
similar to
the one worn by
AJ
when he climbed up
Pole B
on the day of the incident.

This type of belt is not used for fall arrest. (Tr. 577- 80 ; Ex. O at 1).

VP Bauer testified that a fall arrest system is a body harness that ECE uses with aerial lifts. (Tr. 596).

39
AJ
was reportedly a “heavyset man” ,
and the strand went down with a diagonal “tilt”. (Tr. 243).

40
[redacted]
testified that he thought the lasher turned over at about 9:00 a.m. on a real cold day. (Tr. 300). The Court finds that this is a bit too early and that the lasher got stuck on the strand closer to 11:00 a.m. (Ex. I at 0338).

41
The photograph s
at exhibit s
24
and 31
show the piece of wood
[redacted]
used to help balance
AJ .

(Tr.
247 ; Ex s . 24 , 31 ).
[redacted]
testified that the piece of wood was a lot wider than the layup stick. (Tr. 248).

42
[redacted]
also alerted the Code Inspector, Yamile Saltarin Baena, who had been parked
next to the Crew’s truck
by the road all morning, to what was happening in the woods. [redacted]
testified that Baena would “always be there with us working.” (Tr. 248-50; Ex. I at
336,
341-42).

43
PM Becker retired in
October
2020. (Tr. 338).

44
Foreman Cole testified that in his experience
n ot many lashers get stuck; “probably zero too.” (Tr. 144). Becker testified it was “very rare” for lashers to flip over; but added “Well, I mean, it can happen.” PM
Becker estimated that a crew’s lasher flips over “once” a month. (Tr. 410-11). He said that a lasher can get stuck in place and not be pulled back, “but that is rare.” (Tr. 411).

The Court does not place much weight on any testimony that states lashers “rarely” get stuck. (Tr. 119-20; Ex. 46 at 5-6 (Resp. to Interrog. Nos. 14, 17) at 11-12 (Resp. to RFP No. 34)).

45
[redacted]
testified that Cole showed him how to pull the lasher back to the pole. [redacted]
told
CO Willibey that he was told in the field that “in rare cases, pole and/or ladders would be used when it [the lasher] couldn’t be pulled back.” (Tr. 311; Ex. JJ at 8)

46
Stipulation No. 5 concerns Exhibit 63, which was not offered
or
admitted , and was withdrawn
at the hearing.

(Tr.

713).

47
“(sic)” inserted by Court.

48
T he parties further stipulated that the law of the Supreme Court of the United States also applies.

( Tr.
76-77 ) .

49
The trial was conducted remotely at the request of the parties. (Tr. 323).

50
Section 1910.268(c)
reads:

(c) Training. Employers shall provide training in the
various precautions
and
safe practices
described in this section and shall insure that employees do not engage in the activities to which this section applies until such employees have received proper training in the
various precautions
and
safe practices
required
by this section. However, where the employer can demonstrate that an employee is already trained in the precautions and safe practices required by this section prior to his employment, training need not be provided to that employee in accordance with this section. The employer shall certify that employees have been trained by preparing a certification record which includes the identity of the person trained, the signature of the employer or the person who conducted the training, and the date the training was completed. The certification record shall be prepared at the completion of training and shall be maintained on file for the duration of the employee’s employment. The certification record shall be made available upon request to the Assistant Secretary for Occupational Safety and Health. Such training shall, where appropriate, include the following subjects:

(1) Recognition and avoidance of dangers relating to encounters with harmful substances, and animal, insect, or plant life.

(2) Procedures to be followed in emergency situations, and

(3) First aid training, including instruction in artificial respiration.

51
CO Willibey testified that caught-in and fall hazards can result from a lack of training on how to safely perform midspan work like stuck lasher retrieval. (Tr. 632).

52
OSHA’s telecommunications standard “sets forth safety and health standards that apply to the work conditions, practices, means, methods, operations, operations and processes performed,” in relevant part, “at telecommunications field installations….”

29 C.F.R. § 1910.268(a)
(1) .

Per the standard, “[f]ield work includes the installation, operation, maintenance, rearrangement, and removal of conductors and other equipment and used for signal or communication service, and of their supporting or containing structures, overhead or underground, on public or private rights of way….”

( Id. ) .

53
The Interpretation Letter also states in part “Our interpretation letters explain these requirements and how they apply to
particular circumstances , but they cannot create additional employer obligations. This letter constitutes OSHA’s interpretation of the requirements discussed.”
(OSHA Interp. Ltr, at 1, Re: Standard 29 C.F.R. §
1910.268). The Court is cognizant of this limitation.

54
VP Bauer testified that a stuck lasher is “a fairly common thing.” (Tr. 461).

At trial,
VP
Bauer admitted previously telling DOL counsel that “a stuck lasher is kin to a lineman as a bent nail is to a carpenter.” He further testified
at trial
that “I would still agree with that, yes, ma’am.” (Tr. 461 ; Ex. 46 at 5, ¶13 ).

55
Bauer admitted to referring to
AJ
going out on the strand as “old school cowboy cable stuff” as something
he would have said.”
(Tr. 474).

56
[redacted] ’s statement s
undercut VP Bauer’s testimony that
[redacted]
“knew better than to do” what
AJ
did when he went out on the strand.

( Tr. 561 ) .

While
[redacted]
initially declined to do it, it was not because ECE had taught him not to; it was because he knew his “physical limitations.”

( Ex. 6 1
at 30 ) . On January 15, 20 2 0,
[redacted]
told VP Bauer that he told AJ “I cannot do that, I know it’s
harder than it looks.” ( Ex. 64
at
¶ 14).

On January 14, 2020,
[redacted]
told VP Bauer , “ You know,
I took his guidance . And
I should have been the one to say, ‘Don’t do it. ’

But I thought that
he was able to –
I don’t know.”

(Ex. 61
at 76 ) .

57
CO Willibey’s OSHA Worksheet states “[w]hen interviewing employees about training, specifically retrieving stuck lashers, they explained that they were shown in the field by foremen and senior members on the crew.” The CO did not specifically identify who these employees were
in the worksheet . (Ex. JJ at 8).

58
PM
Becker had no specific recollection but said typically, such observation lasts one to two weeks. (Tr. 296, 353). Foreman Cole testified that
the two crews did “not often” work together . (Tr. 134). ECE’s
pay records indicat e the Crew worked
one week and odd days with
Foreman
Cole.

(Ex. S at 434-40, 452).

59
VP
Bauer
had
no knowledge of how long
AJ
worked for Crammer or when
and for how long
he
attended a
lineman
training
school /program in Jamaica .

He did not know what lineman school
AJ
attended and had no idea what was taught in the Jamaican lineman school.

AJ ’ s
Employment Application indicated that he had no “Current Certifications.” (Tr. 533 , 564-66 ; Ex. 56 at 2).

60
29 C.F.R. § 1910.268(e)
Tools and personal protective equipment
– Generally
states:

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. Before each da y’s
use the employer shall ensure that these personal protective devices, tools, and equipment are carefully inspec t ed by a compe te nt person to ascertain that they are in good condition.

(Tr. 12).

61
The crew did attempt to use the three layup sticks that were available to it.
(Exs. 61 at 24, I at 0340).

62
PM Becker testified:

Q Okay .

Would a ladder have been feasible at that worksite [ from
area underneath the lasher at the Incident worksite]?

A Yes.

(Tr. 369-70).

63
CO Willibey testified that
the purpose of training is “to prevent them [employees] from being exposed to hazards.” (Tr. 629-30).

64
At
trial,
CSHO Willibey misstated the GBP by $20 or as $13,470.

( Tr. 639 ) .

65
Two of these defenses – “assumption of
the
risk” and “superseding cause” – are not recognized in cases before the Commission.

Anheuser-Busch, Inc. ,
No. 2441,
1974 WL
4570, at *5
( OSHRC, Dec. 24 , 1974) .