L.G. Defelice, Inc. (ALJ decision, March 28, 1994)

Plain-English summary

L.G. Defelice was rehabilitating a section of Interstate 70 near Washington, Pennsylvania, where heavy equipment regularly passed beneath overhead electrical lines. Two machines contacted the lines in separate incidents, and the judge found that Defelice had not trained employees on the specific clearance distances needed to avoid the hazard. She affirmed the safety-program item and the power-line-clearance item as serious, but rejected the willful classification because the company held a good-faith, though incorrect, belief that a four-foot transit clearance applied. The employee-misconduct defense failed because the company's rule was too general and was not effectively enforced. A backup-alarm item was vacated because OSHA did not disprove that a signal observer directed the trucks, and the inspection-program item was vacated because qualified personnel regularly inspected the site. A cracked-windshield item was also vacated because OSHA did not show that the cracks distorted the operator's view. Total penalties were $5,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.601(b)(4), 1926.20(b)(1), 1926.20(b)(2), 1926.550(a)(15)(i), and 1926.550(a)(12).
• Outcome: Mixed. Two serious items were affirmed and three items were vacated, with total penalties of $5,000.
• Key point: A general warning about electrical hazards did not adequately train employees on required clearances, but a reasonable good-faith misreading of the transit rule defeated willfulness.

Full text (OSHRC public release)

UNITED
STAfESOi: AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COhdhbisSION One Lafayette Cents
1120 20th Strwt, N.W. - 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3349
L. G. DEFELICE
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on February 25, 1994. The decision of the Judge will become a final order of the Commission on March 28, 1994 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition should be received b the Executive Secretary on or before March 17, 1994 in order to ermit suff?cient time for its review. See Commission Rule 91, 29 C.F .R. 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Wqhington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So7 icitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party halng questions about review rights may contact the Commission’s Executive Secretary or call (202) 6063400.
FOR
A THE COMMISSION

Date: February 25, 1994
Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-3349
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, Esq.
Counsel for Rt ‘onal Trial L,iti ation
Office of the SoeQ‘citor, U.S. Dck
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ‘onal Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104

Charles R. Volk, Esq.
Jane L. Volk
Volk, Frankovitch, Anetakis, Recht,
Robertson & Hellerstedt
Three Gateway Center, 15th Flr.
East
Pittsburgh, PA 15222

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an d Health
Revrew Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00116042722:03
 OCCUPATIONAL SAFETY AND HEALTH REVlEW COMMISSION 1365 PEACHTREE STREET, NE, SUITE 240
ATLANTA, GEORGIA 30309-3119

SECRETARY OF LABOR
complainant, .
v. OSHRC Docket No. 92-3349

L G. DEFELICE, INC.,
Respondent.

APPEARANcEs:

Anita E~lltWright, Esquire
clMub R vollr, Bquile
omx of the soudtor
JaneL Vo& lapire
U. S Departmentof I&or
VoUc,Frankada Anaakis,Rccht,
Philaddphi&Pennsyhgnia
Robavson dt Hdkrstdt
For Complainant
Pittsb~ PeIlnsyhw
Fbr Respondent

Before: Administrative Law Judge Nancy J. Spies

DECISION AND ORDER

L G. Dcfelicc, Inc. (Defelicc), is a prime contractor specializing in highway construction pr. 381). It was the general contractor’s job to rehabilitate and, where necessary, to replace specific portions of roadway and bridges along a two-mile stretch of Interstate I-70 near Washington, Pennsylvania rr. l&12,77).
On August 24 and 25,1992, Occupational Safety and Health Administration (OS) Compliance OBer Vance Delsignore conducted a referral inspection of Defelice under the Occupational Safety and Health Act of 1970 (Act). The Secretary alleges that Defelice was in serious viol8tion of H 1~6Ol(lQo(~ 192azo@)(lh and 1926zo@)(2)Q opera-
a

truck without a backup alarm or obener, and that its dety program and inspection of its jobsite were defihnt. He alkgcs a willfulviolation of 8 192635O(a)(15)(i)for hilure TV maint8ina lodoot clearanceof electrical lines and an “other” than serious violation of 8 1926.5SO(a)(l2) for alleged distortions in a tie windshield Defelice denies that the conditionscited constituted violationsm

ALLEGEDSERIOUS CITATIONNO. 1

Item la: 6 19260601Cbm

The Secretary charges Defelice with a violation of 0 1926.601(b)(4) for failure to have operational backup alarms or signal observers on two trucks owned and operated by Defeke. Delsignore asserts that one of its employees was directing the backup operation The standard rquires:
(4) No employer shaIl use 81l)rmotor vehicle quipment having an obstructed view to the rear unless: (i) The vehicle has a reverse signal alarm audiiiiiik above the surrounding noise level orz (ii) The vehicle is backed up only when an observer signals that it is saft to do so.

Delsignore and Defelice Vice-President Jonathan Miller, who was a part of the walk-around party, observed a t&axle dump truck backing up without a functioning alarm. Miller asked the driver if he had checked the alarm the previous morning and the driver informed Miller he had (Tr. 250). A second dump truck had pulled into the area and was waiting to be ElIed with dirt (M7). In an attempt to convince Delsignore that the lack of an alarm on the first truck was a “fluke,” Miller directed the second dump truck to back up. The backup alarm on that truck likewise did not operate (Tr. 268). MiIler radioed for a mechanic, and the alarms were immediately repaired.
Although not an issue raised during the inspection, Miller contends that foreman Nelson Kletski was standing within 15 feet of the dump truck on the right side of the truck, directing the driver (Tr. 248-249). Miller testified that the driver was observing the signalman through his right-hand mirror.

2
Wr wne
d&-g backup operations as Dcfelicc attests? Ddsigno~ cmthe
other hand, tccIIfkd that “a foreman” (whom be incorrectly identbd as Gregory Nunes) was 50 to 6obtfrom the truc~%alking around and talking with different people that were working them at tbe jobsite” (Tr. 60,125). Delsigaore,who believed someone told him that the foreman’s name was Gregory NUNS, considered the foreman to be the exposed employee. At one point in his testimony,Delsignorerecalled that an empm was so&& within 15 fttt d the truck (‘I’r.59). while Delsignore was tirm in his recollection that no one was directing the dump trucks or keeping people a-y dramstanding behind the trucb, he did not speak with the operator or anyone ek at this job location Ft. 12442S).
Defelice maintained not only that Kletski was directing the dump truc& but that it was its general policy to assign a signal person to direct the trucks QI’r.251). Neither party presented the testimony of the operator or Kletski. Delsignore’s misidentificatbn ofKktski indicates a less than precise observation of the scene. Whether the vehicle bwked up only when an observer signaled that it was safe to do so is a disputed matter between twrs eyewitnesses, one of whom spoke to the operator and was f&nil&rwith its operbn. The Secretary has f&d to carry his burden of proof that the violation occurred. The vi&&n is vacated

Items lb and lc: 4 1926.20&~1\ and 4 192QO(b)a

The secretary alleges that Defelice violated 8 1926.20(b)(l) for f&lure to enforce its written safety program and 9 192620(b)(2) for failure to sufficiently inspect the work&e to ’ eliminate hazards. Admitting that Defelice had an adequate safety program uon paper,”the Secretary maintains that it did not translate its written program to the field.
The standards provide: m(b) lt4x&ntprwention n%y?mibilirics.

(1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.
 (2) Such ~to~~rzu~l~ halI provide for frequent and regular inspcction~by competent persons designatedby the employen.

IBefkke correctly asserts that the simple f&t that other violations occured at a worksite does not establish that an employer had defectivt safety or inspection pqrams. However,proof CWIIIIIO~ to other violations may establish 9 192&20(b)vioMions without being duplicative. J. A. Jonc~ @nst~tiim co., 15 BNA OSHC 2201,1993 CCH OSHD II 29,964(No. 87-2059,1993)8 Because 3 192620@)is a general standard, the Cmmission and the courts have held that an employer must instruct its employees in the recognition and avoidance of hazards which a reasonably prudent employer would have been aware. The ‘Msonably prudent employer” standard applies equally to safety inspection of worksites. E&, R&R B@i& Inc., 15 BNA OSHC 1383,199l CCH OSHD 129,531 (No. 88-m l991);A. R O’Horr,Ca, 14 BNA-OSHC2004,199l CCH OSHD q 29,223 (No. 8%369,199l). AMmughgrouped with item 1 (no backup alarm), Delsignore explained that the alleged inadcqyaq of the safety program and inspections also related to employees workingunder overhead elect&al lines (Tr. 64,66).
In order to comply with 8 19262O(b)(l), employees must be instructed on dangerous conditions that they may reasonably be expected to encounter in their workplace. Three ekctrical lines crossed the main acussway, which was near the top of a rise, at heights of 22 to 23 feet (Tr. 154). The heavy equipment which regularly traveled the accesswaywas more than 11 feet high in its lowestcon@ration ur. 239,241). Aworksite having less than an 11.fmt ckarancc between overhead ekctrical wires and equipment wu the type of hazard a rcasonabk employer would identify and train employees to avoid.
Defelicc had a safety orientation program and conducted weekly safety meetin@ Employees were required to attend and to veri@ their attendance at meetings. The safety instructionrelating to overhead electrical lines, however, was only a most general admonition to “approach and handle” high voltage lines taking “complete precautions” (Exh. Cl, pg. 11). Defelice relies heavily on the fact that a 4-foot clearance requirement applied to

4
the facts of this case, Yet emplqccs wltre not inslnctcd on either the distances of the 4 fmt or lO-fti ckarana requirements or on the cirmtanw under Whichthe varying d&we rcquimmnts wwiklapply. The fact that a vetem 459ar crane operator may be able to ~MCWW the area does not relieve Dcfelice of its responsibility to train its emplqw on appropriate clearancc~. It should hvt relied not on the skill of one employee but upon a spcci6csafety rule known by all its employca Since Defelicc’ssupavisors were aware of the specifichazard but fkiled to train employeesin reaq+iqandavoidingit,the company had kwwkdge of the inadequacy of its training program. A violation of this standard is serious if the specific deficiency (k, ektrical shock) isserious. EkctrW shoclt results in death or seriOusbodiiy injury. The Secretaxy has established a serious violation of 5 1926.20(b)(l). Defelice employs 200 workers, half of whom worked on the Washington project. Defelice had a history of previous serious violations (Tr. SO). The gravityaf the violation is high (Tr. 208,343). A penalty of $1,000 is assesH.
The standard at 0 1926.20(b)(2) rquires frequent inspections by a competent pe1~0n.
Francis Nations, operations superintendent, and other management ~CZSCM&,in&ding Jonathan Miller, testified that they regularly inspected the j&site (Tr. 230). D&eke further relies on the fact that a technical consultant with its insurance carrier ded the WorlDift on several occasions. In fact, management had identified the existence of the overhead lines as a potential hazard and had discussed how these and other electrical lines should be dealt with (“I?. 230-231,371,373). Its supen&ors’ assessment of the hazard was fMty since they “decided to not use insulation because of the limited amount of work being done around
[the wires]” (Tr. 231). Their error in judgment alone does not establish the violation. The secretary’s position is that a competent person would have insulated the wires over this portion of the acccsswaym Since the wires were not insulated, the Secretary asserts the inspections were not performed by a competent person. The backgrounds of persons inspecting its worksite was sufkient to qualifv as ucompetent.~ The violation is vacated. ALLEGEDWILLFUL CIT’ATIONNO. 2

On two separate oaMons Dcfelicc equipment came into contact with overhead electric& lines. The Secretary asserts that either ur both of the occurrences were willful violations of 0 1926SSO(a)(lS)(i). D&lice admits that the equipment contacted the electrical lines but denies that this constituted a violation or that the violation should be characterized aswillfi& It asserts as a defense that the events were unforeseeable and that Defekc was without lrnowledge of the hazard. It fwther posits that, in any event, the cited conditions are governed by Subpart (iii) rather than the cited Subpart (i).

APPLICABLE STWDARD

The standanis at issue provide:

(a)(lS) Except where electrical distribution and transmission lines have been decnergizd and visibly grounded . ..orwhere insulating b&ers..&vc been erected., quipment or machines shaU be optmta! proximate to power lines only in accordance with the following: (i) For lines rated 50 kV. or bckw, minimum clearance between the lines and any part of the crane or foad shall bc1Ofbetm

(iii) In transit with no load and boom lowered, the equipment clearance shall beaminimumof4f~tforvoltageslessthan50kV....
(Emphasis added)

Admitting that its quipment regularly traveled under the electrical wires, Defelice denies that it “operated” under the wires at the times of the accidents. Defelice argues that since the equipment was “in transit* at those times, only 5 1926.5SO(a)(lS)(iii)could apply and that the incorrectly cited standard must be vacated. The argument is rejected for reasons d&ussed below.
Defelice mistakenly assumes that Subpart (15)(i) applies only when the crane is set up to perform an uoperation.” Proper construction of this standard was discwed in Ho B.

6
 Z&uy Co. v. OSHRC, 638 F&l 812 (5th cir. 1981). In ZWuy, the crane was to -1 several hundred feet with its boom lowtrcd canyiag a logd of pipe. Zachry claimed at
these cirm
were not governed by any standard sine the term "operating"h
Sub* (m did not apply whenever a crane ‘Yrwckd.” Rejected as too I a
reading of the standa& the Review Commission found the term “operation of equipment or machines”may cover cranes in transit. ti appeal the FUst circuit agreed and further

It is more logicaland in keeping with the standard’s terms and its purpose to find (15)Qii)as an exception-~~ when a crane is in transit without a bad- n )concerningminimumclearances between to the general rules of (15)(i) 8t (O’ cranes and hctrkal transmission lines whether or not the crane is loaded or in tmsit. It is doubtful that (15)(iiii would have been needed if (i) & (ii) were intended only to regulate cranes operating in a stationary position l m.0

638 F.2d at 818

The Zrrchtyanalysisdoes not mean that Subpart (15)(iiii is an uexception” in a traditional . sense which shifts the burden of proof. See eg, Fhnqan consftuctibn Co., 6 BNA OSEIC 1496, 1497,1978 CCH OSHD 122,675, p. 27,371 (Na 14536,1!P78). It dw indicate that the terms of lS(iii) must be strictly applicable if lS(iii) is to override the 10-f- clearance requirement of 15(i). As noted in E&y, and as demonstrated and achowiedged in this case, electrical lines present sign&ant potential hazards on construction jobsites.
Considering the factual circumstances here, the incidents were properly cited by the Secretary under Subpart 15(i). The occurrences did not fit within each of the terms of lS(iii), Le., the quipment was not (1) in transit, (2) with no load, and (3) with the boom lowered. Thus, the standard permits a lesser clearance when brief exposure under power lines is anticipated and quipment is fiiily in a transportation mode.
Contrary to respondent’s argument, equipment may travel at a worksite without being considered “in transit”for purposes of lS(iii). The standard does not contemplate that “in transit” is to be so broadlydefined that it encompasses every occasion that equipment moves at a construction site.

7
 The areawhere both accidentsoccumd was a dirt acctsswaywhicbindined upward at the pointwhere elect&al lines crossedit. Tbc a- yhadbecnapartofthehighway before Defeb removed concrete in order to fkilitate the planned repavement of he road at a later date (Tr. 36). The accident area was a put of tbt OvcraJlCOIWtrUCtioII site.

On August 4,1992, the backhoe was not “in transit” as defined by Subpart lS(iQ.
The specific work area was appraximately 75 fett beyond the overhead lines at the accessway (Exh. R4, Tr. 306307). The activity required by the Kobeko 916 backhoe operator on August 4, 1992,was not merely to mwc the quipment from one point to another, although that was his ultimate object&e. The backhoe operator was expected to maneuver over or around or to muve a 4-f6otdirt pile on the accesswq under the lines (Tr. 307409). As foreman Gregory Nunes explained:
A As [Lfayd)proceeded up the ramp, going westbound, he had cleared the lines. We had him on the flat. I had him turned around. I stopped the operator, got out of the machine, and WG walked up and I explained to him exactly what needed to be done . . l l

Q0 In youropinion, could he have done that? Could he have gone around [the dffmt dirt pile]?

A Yes, he could have, but he would have had to actually, I believe, drag some material out of his way to make it a little better.

(Tr. 306-308)

Since Westfiillwas required to maneuver the equipment and remove dirt from the dirt pile, the backhoe was not strictly “in transit,”and Subpart 15(iii) does not apply.
The standard likewisecannot apply to conditions existing on August 22,1992 The crane was to be driven approximately 100 to 150 feet from the area where the overhead wirescrossedthea ccessway.The operator of the P&H crane proceeded up the incline of the accesswaywith the boom raised 3 feet (Tr. 320,324). Since the boom was not in the lowest transportation mode, as required by lS(iii), that subpart does not apply. Moreover, the operations superintendent knew that equipment such as the P&H crane regularly kaneuvered under the wires. As he descrii itz But, Bill cafdwen, he cou)d go up the ramp, swing his boom sideways and clear the thing at 11 fact.It’s operator-I’m not knockingIuoyd], but he was not famrliat with the machine. Billranthisthingeveryday.He could run up tothet~ofthehill,andwhenhegcMothelines,swinghisboom,andget right up underneath it, and he cleared this thing by 11 feet. vr. 357).

The cited standard at Subpart 15(i) is applicable to both incidents at issue.

From the beginning,,the accessway was a potential probkm for Defelice where it . crossed under electrical wires. The bottom conductor maured 22 feet above the grou@ the second and third lines measured 23 feet abuve the ground (Tr. 154-155). ‘IMe measurements were taken a&r the 4-f-t mound had &en removed vr. 173).
The Kobelco backhoe invoed in the August 4 in&jent measured 11 feet 4 inches in height as it satin its travel mode. Similarly, the P&H crane involved in the accident of August 22 measured 11 f&et7 inches in height when the boom was completelyfolded (B&s.
R-5, R-7; Tr. 239,241). At best, only a lO-foot &inch to lO-oat l-inch clearance existed when the equipment crossed under the lines. Measured from the 4-Oat mound existing before the August 4 accident, the ground-to-wire distance was 6 fett 8 inches. Defelice considered that it must maintain a 4-ffmtclearance whenever quipment was in transit under the lines. Since it did not anticipate that equipment would “,perate” u&r the wires once the pavement had been removed, it viewed all other movement of the equipment as being Yn transit?

DISCUSSION

To estsblish a violation of a specific standard, the Secretary must prove by a preponderance of the evidence that the standard applies, that the terms of the standard were not met, that employees had access to the condition, and that the employer either

9 knew of the conditionor could have known with the exercise of reasonabk diligence. &,
ASP -W-B,
9 BNA OSHC 2126,2129,1981 CCH 06HD 125,578, pp.
31,=%X) (Na 786247, Ml), cffd timparr,
681 F.2d 69 (1st Cir. 1982).
On August4,1992, the boom of the backhoe struck electrical lines when it angled
upward as it QoQsedthe 4-Oat dirt mound along the accessway(Tr. 28%290).The backhoe operator, Eugene We&II, was moving the backhoe to begin excavation work at a piling midwaybetween the accident location and the bridge @XL Gl, p& 11; R-4). Defelice denies that it had knowledge of the violation. However, its operational foreman, Gregory Nunes, directed Westfall in the operation. Nunes spe&i&ly stopped WestfW at the portion of the accesswaywhich resulted in the accident. Nunes “went over with [westfanl about the wires. I said I didn’t want to take any chances whatsoever” fir. 308). A superior% knowledgeand actions normallyare imputed to their employers. DavaElcvotor Ca, 15 BNA OSHC - 1991CCH OSHD f 29,524, po39,849(No. 8&2642,1991);R& M Wii &w& 15 BNA OSHC.1809at 1814,1992 CCH OSHD 128,876 at p. 40,584 (No.87-@2,1992). Nunes’knowledgeof the violation is imputed to Defelice.
Eighteen days later the August 22, 1992, incident cxcwrcd at roughly tbc m
location as the first accident. August 22 was a Saturday, and a skektcm crew was setting up newlydelivered equipment. Present were an operations superintendent, Francis Naw, a carpenter “foreman,” John Evans; a master mechanic, Jack Schaifec and other employees, including Maurice Uoyd, a mechanic-greaser(Tr. 313,353). When parts for the new machine were not delivered, Nations left to call the supplier. While he was gone, Evans informed Schaffer that We have to bring [the crane] up” to allow the men to work on the . new machine (T’r.341). Schtier and Evans went to the crane but were having dMcuhy raising its outriggers. Iloyd observed the problem raising the outriggersand offered to help (Tr. 336).
Maurice Lloyd worked under SchafZer(Tr. 334). Lloyd was qualified by his union to operate various types of equipment, including the P&H crane, which Schtier directed him to operate that day. Lloyd had previously operated this and other heavy machinery, usuaIly in conjunction with his work in maintenance (Tr. 313,327). When Lloyd was successful in

10 raisingtheoutriggers,.CehaffcrtoldU9dtotaketbecrane”upontop~tbehilftothearea where they mntcd it” vr. 317). The accesswaY~~~=uogdproceededupthe idine. Attemptingto determinehow much room remainedon the sides,he r&~& & boom 3 fett and into the electrical wires (Tr. 324). ‘Ike were no iq@ries,but West Pem power was rquired to repair the Iines and invest@te this scaxwi incident (Tr. 2%).
Defelicc denies that it bad kncmkigc of empluyws’actions in bringingup the P&H crane. If Evans and Schaffixwere sqewisozy employees, their kndedge of the viohion is imputed to the company. Defelice distinguishes between management or “operational” supe~rs (only Nations was “operational”) and Tmion* supervisors(such as Evans and SchaiTer). Whether an employee is paid hourly and has authority to hire or fire are relwant but are not dispositive of management status for purpws of the Act. %haffer was, as Lloyd considered him to be, IAyd’s first-line supe&or, W~CBC dircc&~ must be complied with (Tr. 331,334). As with other supewisory sta& ScbafEkfhad his awn “officen ~&telephone and parts cabinet FL 352). Such “union” supewisors are compuabk ‘Icad menn or working foremen (Tr. 351-355 359). In Defeke’s supenisory scihenq union supewisors direct employees’actions and have responsiiiiiliti~ and authority sui%ient to bind the company. This fact is illustrated by Nation’s reaction to tiding the crane “up the hill” when he returned dram making his phone caIL Nations was not surprised to see the crane there, and uI didn’t say anything because I would have probably gfiven] the order sooner or later to get the crane up there myse& but it ~8s up there” vr. 354). The supervisors’lcnowledge of the August 22 violation is imputed to Defelice.

DEF’ELICE’SEMPIBYEE MISCONDUCI‘DEFENSE

Defelice sought to establish its defense of “unpreventable employee misconduct.” The defense recogkes that an employer is not held liable for idiosyncratic conduct of an employee in canying out orders which violate a company’s saftty policy. However, the burden of compliance remains with the emplayer who must afhnnatively show that: (I) it established work rules designed to prevent the violative conditions from occurring; (2) the work rules were adequately communicated to its employees; and (3)it took steps to mr

11 violations of tkxe r&s and eff&ctivelyetiorad the rules when violations were w EG., HruniEEar Fiiii, 16 BNA OSHCZ
1073,1993 CCH OSHD 1-
(No. 88172Q 1993);
GoryconarttM, Ii., 15 BNA OSHCat 1055,199l CCH OSHD ‘I - at p. 39,452(Na 8tHo87,l~l~ The only safety rule which arguably pertains is found in one paragraph of the

Highvoltage ekctrk equipment and transmissionlines are tobe appmadmd andhandlodonlybypenonsqalifiedandauthorizedtodosoandontyafta complete precautionshave been taken for the safety of them&Es and others m cl, p& 11)

It is not sufkient to establish the defense for W&y rules in genarJ to have been communicatedand enforced. The &ety rule must be specificenough to advise em@yees what they must do to avoid the hazard. Set Hamih Fm sup. Defeke’s MU&mle was so general that it is questionable whether it even applied to the hazard. ‘Ike wasno enforcement of even the general work rule. Defelia’s superintendent, Au@ m ~MW that he was ‘tery disappointed”in the men and that “if it ever happened again, @e wouldI fire the entire bunch” (Tr. 372). This fti far short of the type of effkctive cnfkccment required by the &fensc. Signs provided by the utility, even assuming argue&o thegmre posted, is not a substitute for eIlfoorcementof the company%own work rule. Employees must be @en specificinstructions and training on identifiable hazards, not merely bkmed if accidents occur. The defense has not been met.

Was the violation of 0 1926SO(a)(lS)(i) willful? .
A willfdviolation is one committed with intentional, knowing or voluntary disregard for the rquirements of the A& or with plain indiBIerencc to
empluyw safety. EG, Willirunss
Ik, 13 BNA OSHC 1249,
. 12%57,19&87 CCH OSHD 127,893, p. 36,589(No. 85-355,14&7). It is dBerentiated from other types of violationsby a “heightened awareness4 the illegalityof the conduct or conditions-and by a state of mind+onscious disregard or plain indifference.”Id

12
 Afindiagofwillfulnesripnotjustifiedifaaemp~rhas~agood~~ effortto comply~6tha stahdard,even thoughthe employ&s efforts are not entirely effbctk 0~ compkte. Ii AISQ a violation is not wiilful if the employer had a good faith opinion that the violative conditionsconformedto the requirements of the &tedstandard. Hmmer, the test of goodfaithfbr these plffpoges is an objectiveone-whether the employer’sbelief amcerning . a factual matter, ‘or concerning the interpretation of a standard, was reasonzibleunder the circumstances. Id 13 BNA OSHC at 12!59,1986-87 (x3H OSHD at p. 36J91.
cizhng Corp., 14 BNA OSHC 1789,1791,1990 m OSHD 1 B,531 (Na 8%319,199O).
Asserting that Defelice had a heightened sense of the ille@ty of its conduct, the Secretaq notes that in May 1992,West Penn Puwer fknished Defeke a series of warning signs relating to overhead and underground elcctrkal wires (MIL C-lo), and that its employee manual contained the previously quoted section vr. 41).
Defeliceinterpreted ~l926SO(a)(1S)(iiii~as jwmitting it to maintaina clearance of 4 feet under the wires on the acassway when the equipment was “in transik” At the beginningof its job, Defelia ascsscd the need for ektrical protection fa the jobdte, includinguse of insulated covers for the ektrical lines. Whik se&&g the insulated covers for other areas of the jobsite, it determined that it would not need the insulation at the location involved in the accidents since it intended to maintain a 4-fat clearance. In response to the August 4 incident, Defelice removed the 4-f- dirt momd which it considered to be the cause of the accident. Defelice should have secured insulated line covets for the electrical conductors under which its equipment could move. However, its understanding of the requirements of lS(iii), though too broad, does not establish a “heightened awareness” necessary to prove a wiIlM violation of the Act. Although not wWul, the violation is serious. An accident could endanger not only those touching the outside of the machinerywhich contacted electrical lines but, because of ground gradiencc, those merely approaching it (Tr. 208). Death or serious injury is the expected resuk Considering the statutory factors and the high gravity of the violation, a penalty of $4,000

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ALLEGEDwmER~
TBAN SERIOUSCITXITON NO. 3

Item 1,0 d 1926.5a

The Secretaryobserved two cracks in the windshieldof the P&H crane whift it ww operating on August 24,199Z One crack ran vertically up the side of the windshW, and the other ran horizoMaIiyacross it (Exh. C-15).
Thestawudprcwicks:

(12) AUwinduwsin cabs shall be of safetygIass,or quivalent, that introduces no vi&le distortion that will interfere with the safe operation of the machine.

Delsignore stated that he did not observe the scene from inside the crane cab sina he did not wish to bring the operator down from the equipment (‘I’r.71). The simpk existence of a crack does not per se constitute a violation. copied lIuwel@ Ca, 15 BNA OSHC 1304,199l CCH OSHD 129,894 (No. 89-21248,199l). Neither photographs mr testimony establishedthat the cracks in the P&H windshieldcreated a distortedview for the operator. Delsignore speculated that cracks “could pre8ent distortjonsmand bad the upotential” to distort vr. 71,128 ). Lloyd, who operated the crane on August 41992, did not find that the cracks in the windshield distorted his view fir. 326). The Secretary has not established a violation, and it is vacated.

F’INDINGSOF FACTAND
CONCLUSIONSOF LAW

The foregoing decision constitutes the tidings of fact and conclusions of law in accordance with Federal Rule of CM Procedure 52(a).

ORDER

Based on the foregoing decision, it is ORDERED:
(1) That the violation of 6 1926601(b)(4) is vacate

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 (2) ‘Rut the violation of 0 lIMSqb)(l) is -cd as serious and a penalty of
$l,ooo is a==&
(3) That the violation of 9 lg3L20@0() is vacate (4) That the violation of 8 l926.S5O(a)(lS)(i)is affimxd as serious and a penalty of $4,000is m and
(5) Tbat the violation of 0 1926Sqa)(12) is vacated

Is/ Nancv J. S&s
NANCYJ. SPIES
Judge

Date: February15, 1994

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