United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 13-0777 

TOWER MAINTENANCE CORP., 

Respondent. 

APPEARANCES: 

David M. Jaklevic, Esq.; Radha Vishnuvajjala, Esq.; U.S. Department of Labor, Office of the 

Solicitor, New York, NY 

 For the Complainant 

Michael Rubin, Esq.; Goldberg Segalla LLP, Buffalo, NY 

 For the Respondent. 

REMAND ORDER

Before: ATTWOOD, Chairman; and MACDOUGALL, Commissioner. 

BY THE COMMISSION:

Before the Commission is a decision of Administrative Law Judge Carol A. Baumerich

affirming two citations issued to Tower Maintenance Corporation by the Occupational Safety 

and Health Administration. OSHA cited Tower following a 2012 fatal accident at a New Jersey 

worksite where it was engaged in painting an electric transmission tower. The Secretary 

subsequently amended these citations twice, with the more recent amendment alleging

“alternative” violations under several citation items. One of these items is Citation 2, Item 2 

(characterized as Serious Repeat), for which we specifically seek clarification. 

With respect to Item 2, there is a discrepancy between the order of the alleged violations 

described in the Secretary’s motion to amend his complaint and the order of the alleged 
2 

violations contained in the amended complaint itself. In the amended complaint, the alleged 

violations are as follows: 29 C.F.R. §§ 1910.132(f) (training for employees using personal 

protective equipment (PPE)), 1910.332(b)(1) (training for employees; electrical standard), and 

1910.332(b)(2) (additional training for “unqualified persons”; electrical standard), “or in the 

alternative” violations of two provisions under the electric power generation, transmission, and 

distribution standard—29 C.F.R. §§ 1910.269(a)(2)(i) (training for employees) and 

1910.269(a)(2)(ii) (additional training for qualified employees). (Amended Complaint at ¶ IX). 

However, in the Secretary’s motion to amend the complaint, the order of these allegations is

reversed—a sequence which was reiterated in his post-hearing brief, as follows: 

Tower Maintenance violated 29 C.F.R. §§ 1910.269(a)(2)(i) and (a)(2)(ii) by 

failing to provide each employee with fall protection training required by the 

standard and by failing to provide training on the work practices necessary for 

their safety. In the alternative, Respondent failed to comply with the parallel 

requirements in [§§] 1910.132(f) and 1910.332(b)(1) and (b)(2). As [§] 1910.269 

makes clear, the training requirements in § 1910.269 apply “in addition to all

other applicable standards contained in this Part 1910.” 29 C.F.R. 

§ 1910.269(a)(1)(iii). Thus, Respondent was ultimately required to comply with 

both sets of training requirements because employees were performing work 

covered by both [§] 1910.269 and Subpart S. However, because Tower 

Maintenance was performing work more specifically covered by [§] 1910.269 – 

namely, maintenance work on a transmission tower that required the use of 

“qualified” employees – and because the language of [§] 1910.269 also 

encompasses the training requirements of Subpart S, the Secretary cites primarily 

to a violation of the training provisions in [§] 1910.269.

(Sec’y Post-Hr’g Br. at 61) (emphasis added). The Secretary also stated that “because 

[§] 1910.269 encompasses the requirements in Subpart S and is more specific to the work 

performed by Tower Maintenance, [§] 1910.269 is the more appropriate standard.” Id. at 63. 

In her decision, the judge analyzed this citation item in the same order the Secretary set 

out in his post-hearing brief—noting that the Secretary alleged the § 1910.269 violations 

“primarily.” Tower Maint. Corp., Decision and Order, No. 13-0777, May 16, 2016, slip op. at 

pp. 8, n.10 and 63-66. It is unclear, however, whether the judge accepted this as a further

amendment of the Secretary’s amended complaint—albeit without a motion or an express

ruling—or if she simply determined that the Secretary mistakenly reversed the order of the 

allegations as set forth in his amended pleading. 
3 

In addition, the judge also appears to have affirmed violations of almost all the provisions 

alleged under this citation item—including those alleged by the Secretary in the alternative.

1

Tower Maint. Corp., slip op. at pp. 67-70. Indeed, the judge’s order states as follows: “Item 2 of 

Citation 2, alleging a repeat violation of 29 C.F.R. § 1910.269(a)(2)(i) is AFFIRMED. Further, 

Item 2 of Citation 2, alleging serious violations of 29 C.F.R. §§ 1910.269(a)(2)(ii); 

1910.332(b)(1) and (b)(2), is also AFFIRMED.” Id., slip op. at p. 77 (emphasis added). Under 

the Commission’s procedural rules, “[a] party may set forth two or more statements of a claim or 

defense alternatively . . . .” 29 C.F.R. § 2200.30(e). Where, as here, the Secretary makes an

alternative allegation, only one of his allegations can prevail, i.e. the alternative allegation is

moot if the first provision alleged is found to apply. See, e.g., MasTec, N. Am., Inc., 20 BNA 

OSHC 1900, 1902 n.4 (No. 99-0252, 2004) (“Since we find compliance with the terms of [§]

1926.950(c)(1), we need not consider the alternative allegation under [§] 1926.950(c)(2).”); 

Nat’l Industr. Constructors, Inc., 10 BNA OSHC 1081, 1086 n.8 (No. 76-4507, 1981) (where 

Secretary alleged alternative violations of two separate provisions of OSHA construction 

standards, Commission held that “resolution of the issues raised concerning the alternative 

allegation . . . is unnecessary[]” once one provision is found applicable); see also 5 Charles Alan 

Wright & Arthur R. Miller, Federal Practice and Procedure § 1282 (3d ed. 2016) 

(“Alternative . . . pleading usually is drafted in terms of ‘either-or’ propositions . . . .”). 

In these circumstances, we remand this matter to the judge to clarify her decision 

regarding which provisions cited under Citation 2, Item 2 the Secretary ultimately alleged in the 

first instance, and which he alleged in the alternative. Based on her ruling on that issue and

given her decision to affirm all the violations alleged under this citation item, the judge should 

vacate the violations she determines the Secretary alleged in the alternative. See, e.g., Jimerson 

 

1

 The judge vacated the Secretary’s allegation that Tower violated 29 C.F.R. § 1910.132(f) based 

on her finding that the provision did not apply. Tower Maint. Corp., slip op. at p. 66 n.57. 
4 

Underground, Inc., 21 BNA OSHC 1459, 1461-62 (No. 04-0970, 2006) (remanding case where 

judge had not ruled on the Secretary’s motion to amend complaint to assert alternative 

allegations). 

SO ORDERED.

 /s/ 

 Cynthia L. Attwood 

 Chairman

 /s/ 

Heather L. MacDougall

Dated: July 6, 2016 Commissioner 
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW 

COMMISSION

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

Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 13-0777

TOWER MAINTENANCE CORP., 

Respondent.

 

Appearances: David M. Jaklevic, Esquire

 Radha Vishnuvajjala, Esquire 

 U.S. Department of Labor, Office of the Solicitor, New York, New York, 

 For the Complainant 

 

 Eli J. Rogers, Esquire 

 JoAnne M. Bonacci, Esquire

 Dreifuss Bonacci & Parker, PC, Florham Park, New Jersey, 

 For the Respondent 

Before: Carol A. Baumerich

 Administrative Law Judge 

DECISION AND ORDER

Tower Maintenance Corporation (Tower Maintenance or Respondent) is in the business 

of “electric transmission tower repainting, maintenance, and related activities.” (Ex. J-1 at ¶ 10.) 

Tower Maintenance employs teams of painters that climb and paint electric transmission towers. 

On October 25, 2012, one of these painters, JV, was electrocuted while painting a transmission 
6 

tower at a height of approximately 70 feet in Edison, New Jersey.1

 (Tr. at 151; Ex. J-1 at ¶¶ 11, 

14, 27.) Immediately after being electrocuted, JV fell. As he fell, JV hit another Tower 

Maintenance painter, RS, who at the time of impact was working at a height of approximately 40 

feet. (Tr. at 151.) Both employees then fell to the ground. JV died as a result of the 

electrocution and RS suffered a broken shoulder, rib, and arm as a result of the fall. (Ex. J-1 at 

¶¶ 14, 15.) Both employees were wearing personal fall arrest system (PFAS) devices. 

As a result of this incident, the Occupational Safety and Health Administration (OSHA) 

inspected the worksite and, on April 8, 2013, issued Tower Maintenance two citations alleging 

violations of OSHA’s electrical safety standards, fall protection standards, and training 

standards, and initially proposing a $35,000 total penalty (later proposing a total penalty of 

$91,000).2

 Tower Maintenance filed a timely notice of contest on April 12, 2013, bringing this 

matter before the Occupational Safety and Health Review Commission (Commission). 

A hearing was held in this matter in Newark, New Jersey, on the following dates: August 

26–29, 2014, and January 12-14, 2015. Deposition testimony of three witnesses, two of which 

 

1 For personal privacy concerns, the names of the deceased, JV, and the injured, RS, have been 

abbreviated throughout these proceedings. 

2 In addition to amending the proposed penalty, the Secretary also, twice, amended the standards 

which Respondent allegedly violated, and amended the characterization of one of the citation 

items. See Complaint dated August 2, 2013 and Amended Complaint dated July 14, 2014. 

These amendments were unopposed by Respondent at the time the Secretary submitted his 

motions, and with no prejudice to Respondent having being shown by the amendments, all of 

which originated out of these same circumstances, they were approved. See Order Granting, In 

Part, and Withdrawing, In Part, the Secretary’s Motion to Compel Regarding Interrogatories, and 

Approving the Withdrawal of the Secretary’s Motion to Compel Regarding Document Requests 

(December 27, 2013) at 5; Order Granting the Secretary’s Motion to Amend the Citations and 

Complaint (July 31, 2014); see also N. Y. State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98, 

104 (2d Cir. 1996) (“[i]n an administrative proceeding ... pleadings are liberally construed and 

easily amended.”); cf. Cornell & Co. v. Occupational Safety & Health Review Comm'n, 573 F.2d 

820, 824 (3d Cir. 1978) (finding abuse of discretion when Commission allowed Secretary to 

amend citation, which drastically changed the legal and factual matters in dispute and therefore 

prejudiced Respondent, four months after original citation was issued and nine days before the 

hearing). The previous citation allegations are set out in detail in Appendix A. 
7 

were video recorded, is also in the record. (Exs. C-30, C-30(a), J-2 (Da Silva); C-31, C-31(a) 

(Fonseca Alves); R-50 (Psareas)3.) Because some witnesses did not speak English as their 

primary language, an interpreter was utilized at points during the hearing and depositions. (Tr. at 

231-232, 235 (RS), 324-325 (Mackeivicz), 1003-1004 (Mackeivicz); Exs. C-30 at 7 (Da Silva), 

C-31 at 8 (Fonseca Alves).) Both parties filed post-hearing briefs and post-hearing reply briefs. 

As discussed below, the citations and proposed penalties are affirmed. 

Jurisdiction

The record establishes that Tower Maintenance filed a timely notice of contest and, at all 

relevant times, was engaged in a business affecting commerce within the meaning of sections 

3(3) and 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the 

Act). (Amended Complaint and Answer at ¶¶ III, XIII; Ex. J-1 at ¶¶ II.2, II.3.) The Commission 

has jurisdiction over the parties and subject matter in this case pursuant to section 10(c) of the 

Act. 

Threshold Issues

For each of the citation items, the Secretary alleged electrical, fall protection, and training 

violations of either OSHA’s “electric power generation, transmission and distribution” standards 

found in 29 C.F.R. § 1910.2694 or, in the alternative, of OSHA’s general electrical standards 

found in subpart S starting at § 1910.301 and OSHA’s general personal protective equipment 

(PPE) standards found in subpart I at § 1910.132. 

 

3 By Order dated March 4, 2015, Nikolaos Psareas’ deposition was received into evidence (Ex. 

R-50), together with Psareas’ training documents (Ex. R-38), and Respondent’s Response to the 

Secretary’s first set of interrogatories (Ex. C-6 at 1 through 13). 

4 At the time of the violations alleged in this case the 1994 version of the standards in the 

relevant sections were in effect and this decision is based thereon. 
8 

To determine which standard applies, the Commission looks to the cited working 

conditions. S. Pan Servs. Co., 25 BNA OSHC 1081, 1085 (No. 08-0866, 2014). On October 25, 

2012, Tower Maintenance was engaged in repainting a lattice-type electric transmission tower. 

(Tr. at 468; Ex. J-1 at ¶¶ 10, 11.) The purpose of Respondent’s painting was to maintain the 

transmission tower. (Tr. at 469.) Section 1910.269 applies to “the operation and maintenance of 

electric power generation, control, transformation, transmission, and distribution lines and 

equipment.” 29 C.F.R. § 1910.269(a)(1)(i). Based on this evidence, I find that Respondent’s 

project in Edison, New Jersey was a § 1910.269 project. See Pub. Util. Maint., Inc., 417 F. 

App’x 58 (2d Cir. 2011) (unpublished) (holding that § 1910.269 applies to painting performed as 

maintenance of an electric transmission tower). 5

 

For the alleged electrical violations, however, many of the standards within § 1910.269 

presuppose that only “qualified” workers will be working because the working conditions are so 

inherently dangerous. Therefore, many of the § 1910.269 standards explicitly state that the more 

protective standards under subpart S of OSHA’s general electrical standards apply in those 

circumstances when “unqualified” workers are working. See 29 C.F.R. § 1910.269(a)(1)(ii) 

(stating that the electrical safety-related work practices of § 1910.269 do not apply “to electrical 

safety-related work practices ... covered by subpart S of this part.”); see also Electrical Power 

Generation, Transmission, and Distribution; Electrical Protective Equipment, 59 Fed. Reg. 

4320-01, 4334-35 (Jan. 31, 1994) (“It should be noted that, if unqualified employees are working 

on, near, or with electric power generation, transmission, and distribution installations, 

§§1910.332 through 1910.335 [in subpart S] apply in any event”; “the Agency has made 

application of most of the electrical requirements in [1910.269] dependent on whether or not ... 

 

5 As the Secretary notes, whether the employees were “qualified” was not an issue in the Pub. 

Util. Maint., Inc. case. (Sec’y Br. at 26 n.23.) 
9 

the employee is qualified to perform the work.”); Electrical Safety-Related Work Practices, 55 

Fed. Reg. 31984-01, 31990 (Aug. 6, 1990) (“[w]ork performed by other than qualified persons 

on, near, or with electrical installations is covered by the work practices contained in [subpart S] 

... because unqualified persons, by definition, do not have the training nor the skills necessary to 

perform work safely very close to electrical installations.”).

Subpart S addresses the distance at which an “unqualified person” must stay from an 

energized power line, and, under the facts of this case, it is a longer distance (10 feet) than what 

is prescribed in § 1910.269 (2 feet 4 inches). 29 C.F.R. § 1910.333(c)(3)(i)(A)(1); 29 C.F.R. 

§ 1910.269(l)(2). In other words, an “unqualified person” must stay further away from an 

energized power line than a “qualified person.” A threshold issue in this case, therefore, is 

whether Respondent’s painters on the Edison project were “qualified.” 

Furthermore, with regard to the alleged fall protection and training violations, a finding 

of whether Respondent’s workers were “qualified” also affects the standards at issue. For the 

alleged fall protection violation, the cited § 1910.269 standard requires all unqualified employees 

“to use fall protection any time they are more than 4 feet above the ground,” as opposed to 

specific situations in which a “qualified person” is not required to use fall protection. 29 C.F.R. 

§ 1910.269(g)(2)(v) Note 2.6

 With respect to the alleged training violation, the Secretary 

explains that Citation 2, Item 2 was pled in the alternative because, while the primary cited 

standard was the “more appropriate” standard cited in this case, Respondent was also required to 

comply with the requirements in subpart S. (Sec’y Br. at 62-63.) Indeed, § 1910.269 also 

 

6

 The Secretary pled an alleged violation of subpart I of part 1910 for Citation 2, Item 1 in the 

alternative “in the unlikely event” that § 1910.269 was found not applicable. (Sec’y Br. at 36 

n.28.)
10 

requires an employer to comply with any other applicable section 1910 standard, 

notwithstanding § 1910.5(c)7: 

This section [1910.269] applies in addition to all other applicable standards 

contained in this Part 1910. Specific references in this section to other sections of 

part 1910 are for emphasis only. 

29 C.F.R. § 1910.269(a)(1)(iii). As discussed below, the “qualified person” finding affects the 

applicability of the cited standards for the alleged training violation in that two of the standards 

cited in the alternative also apply to Respondent’s unqualified employees on the Edison tower. 

The analysis of whether Respondent’s employees were “qualified” follows the findings 

of fact.

Alleged Violations

The July 14, 2014 Amended Complaint alleges violations of the following standards, 

which standards are adjudicated in this case. 

Citation 1, Item 1, the alleged electrical safety violation, alleges a serious violation of 29 

C.F.R. § 1910.333(c)(3)(i)(A)(l), which provides: 

The employer shall ensure that when an unqualified person is working in an 

elevated position near overhead lines, the location shall be such that the person 

and the longest conductive object he or she may contact cannot come closer to 

any unguarded, energized overhead line than 10 feet for voltages to ground 50 kV 

or below. 

29 C.F.R. § 1910.333(c)(3)(i)(A)(l) (emphasis added); Amended Complaint at ¶ VII.

8

 The 

Secretary proposes a penalty of $7,000 for this citation item. 

 

7 29 C.F.R. § 1910.5(c) states in pertinent part: “If a particular standard is specifically applicable

to a condition, practice, means, method, operation, or process, it shall prevail over any different 

general standard which might otherwise be applicable to the same condition, practice, means, 

method, operation, or process.” 

8 The Secretary alleged a violation, in the alternative, of 29 C.F.R. § 1910.269(l)(2), which 

provides: 
11 

Citation 2, Item 1, the alleged fall protection violation, alleges a serious / repeat / willful 

violation of 29 C.F.R. §§ 1910.269(g)(2)(iii) and (g)(2)(v), which, according to the Amended 

Complaint, provide: 

The employer shall ensure that each employee working at elevated locations more 

than 4 feet (1.2 meters) above the ground on poles, towers, or similar structures 

uses fall arrest equipment. The employer shall inspect body belts, safety straps, 

lanyards, and body harnesses before use each day to determine that the equipment 

is in safe working condition. Defective equipment may not be used. 

Amended Complaint at ¶ VIII.9

 The Secretary proposed a $46,200 penalty for this citation item 

in the Amended Complaint, but now proposes in his post-hearing brief that the penalty for this 

citation item should be the maximum statutory penalty of $70,000. (Sec’y Br. at 81.) 

Citation 2, Item 2, the alleged training violation, alleges a serious / repeat violation of 29 

C.F.R. §§ 1910.269(a)(2)(i) and (a)(2)(ii), which, according to the Amended Complaint, provide: 

Employees shall be trained in and familiar with the safety-related work practices, 

safety procedures, and other safety requirements in this section that pertain to their 

respective job assignments. Qualified employees shall also be trained and 

competent in the skills and techniques necessary to: distinguish exposed live parts 

from other parts of electric equipment; determine the nominal voltage of exposed 

 

The employer shall ensure that no employee approaches or takes any conductive 

object closer to exposed energized parts than the minimum approach distance set 

forth in this standard.

Amended Complaint at ¶ VII. Given the voltages of the exposed energized power lines attached 

to the tower (26 kV and 138 kV), the Secretary alleged that the minimum approach distance 

under section 1910.269 was 2 feet, 4 inches. Amended Complaint at ¶ VII. As discussed below, 

I find that the primary cited standard, 29 C.F.R. § 1910.333(c)(3)(i)(A)(l), is the applicable 

standard for this citation item, Citation 1, Item 1.

9 The Secretary alleges, in the alternative, that the cited conduct violated 29 C.F.R. 

§§ 1910.132(a) and (e), which, according to the Amended Complaint, provide: 

The employer shall ensure that protective equipment is provided, used, and 

maintained in a reliable condition wherever it is necessary by reason of hazards of 

process or environment capable of causing injury or impairment. Defective or 

damaged personal protective equipment shall not be used. 

Amended Complaint at ¶ VIII. As discussed below, however, I find that §§ 1910.269(g)(2)(iii) 

and (g)(2)(v) are the applicable standards for this citation item, Citation 2, Item 1.
12 

live parts; determine the minimum approach distances correspondent to the 

voltages to which the qualified employee will be exposed, and; the proper use of 

the special precautionary techniques, personal protective equipment, insulating and 

shielding materials, and insulated tools for working on or near exposed energized 

parts.

Amended Complaint at ¶ IX. Here, I find that, as discussed below, none of Respondent’s 

employees are “qualified.” To the extent that Respondent sent unqualified employees, and in 

some instances untrained employees, to work on the Edison tower within the minimum approach 

distance on this § 1910.269 project, I find that, as discussed below, Respondent violated the cited 

standard that addressed the training requirements for “qualified” employees. Further, I find that, 

as discussed below, the standards cited in the alternative also apply to Respondent’s workers in 

this case because these workers were not “qualified.” 10

For Citation 2, Item 2, the Secretary also alleges a serious / repeat violation of 29 C.F.R. 

§§ 1910.132(f) and 1910.332 (b)(1) and (2), which, according to the Amended Complaint, 

provide: 

The employer shall provide training to each employee who is required to use 

personal protective equipment in the proper use, maintenance, and care of the 

personal protective equipment. Employees shall also be trained in and familiar 

with the safety-related work practices required by §§ 1910.331 through 1910.335 

that pertain to their respective job assignments. Employees who are not qualified 

persons shall also be trained in and familiar with any electrically related 

safety practices not specifically addressed by §§ 1910.331 through 1910.335 

but which are necessary for their safety. 

(Sec’y Br. at 61); Amended Complaint at ¶ IX (emphasis added). The Secretary proposes a 

$14,000 penalty for this citation item. 

Respondent filed its Answer to the Amended Complaint on August 8, 2014. In its 

Answer, Respondent denied the specific Amended Complaint allegations and asserted the 

 

10 The Secretary alleged violations of the § 1910.269 standards, in the alternative, in the 

Amended Complaint, and then alleged them primarily in his post-hearing brief. Amended 

Complaint at ¶ IX. (Sec’y Br. at 61.) 
13 

following affirmative defenses, among others: (1) excessive penalty in light of the small size of 

the employer, among other factors, (2) the violations, if any, were non-serious, (3) “adequate 

safety program run by knowledgeable supervisory personnel” for the alleged training violation, 

(4) training was done prior to allowing employees to perform work for the alleged training 

violation, (5) “Respondent ensured the effectiveness of training and that the employees had 

knowledge and skills needed to perform the operations safely” for the alleged training violation, 

(6) unpreventable employee misconduct for the alleged training violation, (7) all of the citations 

were not issued with “reasonable promptness,” (8) unpreventable employee misconduct for the 

alleged fall protection violation, (9) infeasibility for the alleged fall protection violation, (10) 

unpreventable third-party and / or owner misconduct for the alleged electrical violation, (11) 

unpreventable employee misconduct for the alleged electrical violation, (12) unforeseeability for 

the alleged electrical violation, (13) “third-party and / or owner assured that Respondent’s 

employees would not come into contact with energized electrical lines in the course of their 

work, and therefore, Respondent exercised reasonable diligence to ensure compliance with the 

[alleged electrical] standards,” (14) impossibility for the alleged electrical violation, (15) 

vindictive prosecution by the Secretary.11 Answer at ¶¶ IV-XXVIII.

Factual Background 

I. The Company – Tower Maintenance

A. Officers and Employees

 

11 Although raised in its Answer, many of these defenses were not addressed by Respondent as 

the proceedings progressed. Many were not addressed in Respondent’s post-hearing briefs. This 

decision adjudicates the defenses addressed in Respondent’s post-hearing briefs. Those defenses 

not addressed in Respondent’s post-hearing briefs have been deemed abandoned. L & L 

Painting Co., 23 BNA OSHC 1986, 1989 n.5 (No. 05-0055, 2012) (item not addressed in posthearing briefs deemed abandoned).
14 

Tower Maintenance was created in 2008 by Elizabeth Vlahopoulos, Tower 

Maintenance’s President and sole owner. (Tr. at 783, 831, 908.) Ms. Vlahopoulos has worked 

for more than twenty years in the construction industry, working mainly in the office. (Tr. at 

903-905.) Ms. Vlahopoulos’ husband, Peter Vlahopoulos, is Tower Maintenance’s project 

manager / supervisor and has been working for Tower Maintenance since it was created. (Tr. at 

938-939.) Peter Vlahopoulos has always worked in the construction industry, has over 25 years 

of experience painting electrical towers, and has supervised “thousands” of painters. (Tr. at 

1037, 1053.) 

Tower Maintenance employs mainly seasonal workers, having only three year-round, 

office-staff employees. (Tr. at 833-834.) Its work is seasonal. Its seasonal staff of painters and 

project supervisors fluctuates with the work load, sometimes ranging from 10 - 30 employees. 

(Tr. at 833-835. See Tr. at 723.) According to Elizabeth Vlahopoulos, “everyone goes where the 

work is. That’s why we always share workers,12 like the guys from Morris [Painting]13, they go 

to public utilities, they come to us, and everybody trains them.” (Tr. at 835.) 

During the months of August to October of 2012, it was the “busy season” for painting. 

(Tr. at 696, 723.) Additionally, during the Edison project, Tower Maintenance experienced 

employee turnover and employees taking unscheduled days off. (Tr. at 698-699.) Some painters 

did not show up to work because of the nature of the job – it was intensive labor, in hot weather, 

and some workers needed a break. (Tr. 721-723.) As a result, Tower Maintenance continued to 

 

12 Tower Maintenance does not staff tower painting jobs with union labor. Ms. Vlahopoulos 

testified “[t]he union does not train tower painters, so they can’t give us painters to paint towers.” 

(Tr. at 835. See Tr. at 838). 

13 Several of the painters who worked on the Edison project for Tower Maintenance previously 

worked for Morris Painting. (Tr. at 239, 693, 1006; Ex. C-30 at 19-20; Ex. C-31 at 50, 112-117.) 

According to RS, Morris Painting’s headquarters was located in Ohio and its jobs were located in 

Michigan. (Tr. at 239.) The jobs and work were similar to the job at issue here, painting electric 

transmission towers. (Tr. at 239-240, 303-304.) 
15 

hire painters during the project in an effort to fully staff the crews. Some painters, including the 

deceased JV, were hired several weeks after the project began. (Tr. at 697-698, 722-723.) 

The workers for the Edison project at issue here consisted of two teams, one led by 

supervisor Nikolaos Psareas and the other led by foreman Josimar Mackeivicz.14 (Tr. at 705-

706.) On October 25, 2012, the Tower Maintenance employees engaged in tower painting work 

on the PSE&G Edison transmission tower painting project were JV, RS, Alessandro De Almeida, 

Alan Fonseca Alves,

15 Marcelo Silva, Marcelo Leiroz, Ederson Trizotte, Osias Figugiredo, Caio 

Resende, Domingos Da Silva, and Euflates Passos. (Ex. J-1 at ¶¶ 12-13, 17-27.) The painters 

that testified in this case spoke primarily Portuguese, so they required an interpreter during 

depositions and at the hearing. (Tr. at 231-232, 235 (RS); Exs. C-30 at 7 (Da Silva), C-31 at 8 

(Fonseca Alves).) Peter Vlahopoulos speaks no Portuguese, only English and Greek. (Tr. at 

937.) Supervisor Psareas speaks English, Greek, and “some Spanish,” but “not much” 

Portuguese. (Tr. at 682.) Foreman Mackeivicz speaks Portuguese and “intermediate” English, 

and also required an interpreter at the hearing.16 (Tr. at 324-325, 1003-1004.) 

B. History of OSHA Violations

Tower Maintenance has a history of OSHA violations. (Ex. J-1 at ¶¶ 4, 5, 6; Exs. C-25, 

26, 27; R-45, 46.) In 2011, Tower Maintenance settled an OSHA citation alleging violations of 

OSHA’s construction training and fall protection standards, after one of its employees fell from 

 

14 RS testified that at times, prior to the day of the accident, there sometimes were three crews, 

one crew without a supervisor present at that tower job. (Tr. at 313.) 

15 The parties stipulated that Alan Fonseca Alves is also known as “variations of” Alan Alves, 

Alan “Gettes,” and Alan Fonseca. (Tr. at 716-718.) The spelling of “Gettes” throughout the 

record also varies to include “Gedes” and “Kedis.” See, ex., Ex. C-23 at 4-5. For consistency, 

Alan Fonseca Alves will be referred to as Fonseca Alves in this decision. 

16 Josimar Mackeivicz was also known by a nickname “Pollacko.” (Tr. 1018). 
16 

the tower he was painting in Macungie, Pennsylvania in 2010.17 (Tr. at 787, 896, 958-959, 961-

962.) That employee was improperly tied off on a step bolt on a pole tower when he fell and 

died as a result of the fall. (Tr. at 787, 896, 958-962, 988-991.) Peter Vlahopoulos was the 

project manager on that project. (Tr. at 958.) 

Tower Maintenance crafted a corrective action plan as a consequence of the 2010 

Macungie accident. (Tr. at 784-788, 896, 927-928; Ex. R-3.) In the corrective action plan, 

which was submitted as part of its bid for the Edison project at issue here, Tower Maintenance 

stated that, due to the 2010 Macungie fall accident, Tower Maintenance has taken the following 

steps, among 5 steps, to prevent future occurrences: 

1) The competent person is to remain onsite at all times when workers are working at 

height; 

2) The competent person is to inspect each worker's harness and lanyard not only at the start 

of each day; inspection of all safety equipment will be made again as each worker comes 

down from working at height. This inspection shall be done routinely and repeatedly 

throughout the day and not only morning and at day's end. 

(Tr. at 787-788; Ex. R-3 at TMC00731.) The corrective action plan is dated June 12, 2012. (Ex. 

R-3 at TMC00730.) 

 

17 In the settlement agreement and Commission Final Order violations of the following standards

were affirmed: 

(1) 29 C.F.R. § 1926.501(b)(1), which states in pertinent part: “Each employee on a 

walking/working surface (horizontal and vertical surface) with an unprotected side or 

edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling 

by the use of guardrail systems, safety net systems, or personal fall arrest systems”; 

(2) 29 C.F.R. § 1926.502(d)(21), which states in pertinent part: “Personal fall arrest systems 

shall be inspected prior to each use for wear, damage and other deterioration, and 

defective components shall be removed from service”; 

(3) 29 C.F.R. § 1926.503(b)(l), which states in pertinent part: “The employer shall verify 

compliance with paragraph (a) of this section [Fall Protection “Training Program”] by 

preparing a written certification record.”

(Ex. J-1 at ¶¶ 4-6; Exs. C-25, 26, 27.) 
17 

Before the creation of Tower Maintenance in 2008, Peter Vlahopoulos was the vicepresident of another company, Tower Painting Company, Inc. (Tr. at 964-967, 971.) Elizabeth 

Vlahopoulos was also employed by Tower Painting Company, Inc., prior to the creation of 

Tower Maintenance. (Tr. at 906-907.) Tower Painting Company, Inc., also employed teams of 

painters and, in March 2007, also was cited for OSHA violations. (Tr. at 964-965, 980; Exs. C46, C-47.) Tower Painting Company, Inc. received citations for failure to provide employees 

with adequate fall protection, failing to inspect employees’ PFAS devices for damage prior to 

each use, and failing to remove defective PFAS devices from service, among other citations.

18 

(Tr. at 980-85; Exs. C-46 at 2; C-47 at 13.) The citations were affirmed in a Commission final 

order. (Ex. C-47.) See Tower Painting Co., Inc., 22 BNA OSHC 1368 (No. 07-0585, 2008). 

Peter Vlahopoulos participated in the informal conference discussions with OSHA for that 

proceeding.19 (Tr. at 980; Ex. C-51.) 

 

18 The standards that were violated in that case included the following: 

1) [Citation 1, Item 9] 29 C.F.R. § 1926.501(b)(15), which states in pertinent part: “each 

employee on a walking/working surface 6 feet (1.8 m) or more above lower levels shall 

be protected from falling by a guardrail system, safety net system, or personal fall arrest 

system.”

2) [Citation 1, Item 10] 29 C.F.R. § 1926.502(d)(21), which states in pertinent part: 

“Personal fall arrest systems shall be inspected prior to each use for wear, damage and 

other deterioration, and defective components shall be removed from service.” 

(Exs. C-46 at 1-2; C-47 at 4, 16-17.) 

19 Counsel for Respondent made an offer of proof that Tower Painting Company, Inc. was not a 

predecessor to Tower Maintenance. (Tr. at 910.) However, whether Tower Painting Company, 

Inc. is a predecessor to Tower Maintenance is not the relevant inquiry. The repeat 

characterizations alleged in the citations in the instant case are based on previous citations to 

Tower Maintenance, not to Tower Painting Company, Inc. The previous citations affirmed 

against Tower Painting Company, Inc. are relevant in the instant case because Peter Vlahopoulos 

was involved in the settlement discussions for those citations. (Ex. C-51.) His awareness of the 

previous violations, even violations by Tower Painting Company, Inc., is relevant, as discussed 

infra, to the knowledge element and to the willful characterization allegation of Citation 2, Item 

1 at issue here. MJP Constr. Co., Inc., 19 BNA OSHC 1638, 1648 (No. 98-0502, 2001), aff'd

without published opinion, 56 F. App'x 1 (D.C. Cir. 2003) (holding that supervisors can be 
18 

C. The Project – Edison, New Jersey

1. Contract and Scope of Work 

Tower Maintenance contracted with New Jersey franchise utility company, Public 

Service Electric and Gas (PSE&G), to paint 214 steel “lattice-type transmission support 

structures,” also known as “electric transmission towers,” along highway Route 1 from Trenton 

to Edison, New Jersey. (Tr. at 468-469.) PSE&G wanted these structures painted as a 

maintenance function, to protect the towers from weathering, and to “extend the life of the 

structure.” (Tr. at 469.) As part of the bid process, PSE&G required companies to submit a 

proposal package that included a site-specific safety plan and a job hazard analysis. (Tr. at 478.) 

As part of its proposal, Tower Maintenance submitted a site-specific safety plan, entitled Health 

and Safety Plan (HASP) for PSE&G: Transmission Structure Painting Project & Lead Paint 

Remediation RFP 31368 Various PSE&G Transmission ROW – New Jersey. (Tr. at 478; 942-

943; Ex. C-3.) It was dated June 11, 2012. (Ex. C-3 at 1.) PSE&G requires bidders to submit 

such a plan as part of the bid package so that PSE&G has “a level of confidence that they have a 

plan and they know the work that they’re [d]oing and the hazards of the work that they’re 

doing.” (Tr. at 478.) Tower Maintenance also submitted a PSE&G Contractor Safety

 

“chargeable with knowledge of the requirements of the standard based on their prior work 

experience, wherever that experience originates.”). 

Counsel for the Secretary submitted a motion during the trial to amend the Amended Complaint 

“to include any potential successor entities as Respondents in this matter.” (Tr. at 18.) 

Respondent objected to the motion. (Tr. at 20.) The motion was received, but the ruling was 

withheld pending briefing on the matter. (Tr. at 20, 406-408; Ex. C-48.) The Secretary has not 

addressed this issue in his post-hearing briefs. Consequently, the matter is deemed abandoned. 

L & L Painting, 23 BNA OSHC at 1989 n.5 (item not addressed in post-hearing briefs deemed 

abandoned). 
19 

Qualification Questionnaire as part of PSE&G’s vendor approval process.20 The safety 

questionnaire was signed by Elizabeth Vlahopoulos. (Tr. at 477-478, 785; Ex. R-3.) 

After Tower Maintenance was awarded the contract, PSE&G held a “pre-construction” 

meeting with Tower Maintenance to go over: 

...bringing them on the property, reviewing the scope of work, talking about 

expectations, safety, you know, they're expected to follow, their health and safety 

plan, wear all the proper PPE. We also covered, you know, a hundred percent 

attachment. We covered the lines would be energized. We covered where they 

would be staging from. We covered how they're going about collecting the paint 

chips that are scraped off of the structures. We talked about general housekeeping 

in and around the PSE&G right-of-way. We talked about, you know, there'd be a 

PSE&G representative at the assigned project and that would be their point of 

communication for anything that they needed. We talked about that person would 

also be there to escort them on and off the right-of-way in a legal fashion and so 

forth.

(Tr. at 480-481.) The record shows that Tower Maintenance’s project manager / supervisor Peter 

Vlahopoulos and supervisor Nikolaos Psareas attended this meeting. (Ex. C-1 at 4.) 

The towers that were to be painted were made of steel and were similar, but varied

slightly, in design. (Tr. at 468, 506; Ex. C-30 at 72.) Each tower had a “body” or “cage” that 

consisted of the main structure itself, and also “arms,” on which the energized power lines were 

attached. (Tr. at 469, 483. See, e.g., Ex. C-14.) This “lay-out” of the energized power lines 

varied by the tower, i.e., some towers had energized power lines attached to the arms located 

nearer to the tower body than others. (Ex. C-30 at 37.) The tower at issue had a total of 10 arms 

(two arms on either side of the tower, at five different levels) that supported 12 insulators 

 

20 As discussed above, Tower Maintenance’s corrective action plan, formulated as a result of the 

2010 Macungie, Pennsylvania fatal accident, was included in this safety questionnaire. (Ex. R-3 

at TMC00731.) 
20 

carrying power lines attached to the arms21. (Tr. at 485-495; Ex. C-40.) As relevant to this case, 

the power line of interest, power line No. 3, was attached to the subject tower’s arm about 2-3 

feet from the edge of the tower body. (Tr. at 153, 155-156, 285, 537-538; Exs. C-9, C-14, C14B, C-14D, C-15A, C-15C, C-30 at 6-19, C-31 at 105-108, C-40.) Power line No. 3 was 

energized at 26 kV and was attached to the arm that was approximately 60 feet above the ground. 

(Tr. at 487, 495; Exs. C-14F, C-40.)22 Also on the tower was a ladder made up of step bolts that 

ran up one leg of the tower to the tower’s mid-level, and then the step bolt ladder ran up the 

centerline of the cage to the top of the tower. (Tr. at 138-139; Exs. C-14A; C-31 at 66.) Power 

line No. 3 was 6 feet 5 and 1⁄2 inches from the centerline of the tower. (Tr. at 492.) 

Tower Maintenance contracted with PSE&G to paint only the tower body, not the arms 

where the power lines were attached. (Tr. at 431, 455, 483, 1044; Ex. C-1.) When beginning to 

paint a tower, the painters would climb up the step bolt ladder to their designated position within 

the truss structure, and then they would paint the truss structure of the tower around them. 

During the painting of a tower, members of the painting team would therefore be positioned at 

varying levels along the height of the tower. The painters first applied red colored primer to the 

towers and then painted the towers greenish-gray, twenty-four hours after the primer had been 

applied. (Tr. at 253-254, 259). The Keeler and Long paint, containing zinc dust, used by the 

painters on this project wa s conductive. (Exs. C-19, C-29). 

 

21 A review of the photographs and the blueprint of this tower, in the record, reveals that there is 

an additional sixth level of arms located at the very top of the tower, but no insulators are 

attached to it. (Tr. at 506; Exs. C-14, C-40). 

22 A review of the blueprint of this model tower shows that the second level arm, on which 

power line No. 3 is attached, is 60 feet above the ground and the first level arms are 53 feet 

above the ground. (Ex. C-40.) This finding conflicts with the testimony from the PSE&G 

representative that the first level arms are 70 feet above the ground. (Tr. at 495.) Given the 

single question asked about the height of the arms, and the fact that the witness was reading the 

blueprint which stated “[7’ 0”]” as the distance between the first and second level arms, I find 

that his testimony was mistaken based on a misreading of the blueprint. (Tr. at 495; Ex. C-40.) 
21 

The method by which they painted was as follows: each painter carried two paint 

buckets, one on each hip, up the tower to his location. (Tr. at 254-255; Exs. C-30 at 45; C-31 at 

66-67.) The painter stowed one paint bucket as reserve on a nearby step bolt or open area, and 

then proceeded to paint the tower using the other bucket. (Ex. C-31 at 66-67, 106-107.) By 

using a personal fall arrest system (PFAS) device, each painter had a certain amount of flexibility 

with his hands. They wore painting mitts on each hand, dipped their hands into the bucket of 

paint, and hand-painted the truss structure using their painting mitts. (Tr. at 256-257, 699-700, 

1040-1042; Exs. C-30 at 46; C-31 at 69.) No brushes were used. Pictures and testimony in the 

record show that the painters got covered with paint head-to-toe as the painting job progressed. 

(Tr. at 257-259; Exs. C-28, C-30 at 63-66.) The painters got covered in paint because they were 

leaning against the freshly painted tower cage out of necessity to reach other parts of the tower 

cage. (Tr. at 305, 1052-1053; Ex. C-30 at 65.) The painters would latch and re-latch their PFAS 

device as they moved around the truss to paint the entire structure with their painting mitts. (Tr. 

at 891-892.) Because they were latching and re-latching their PFAS device, the clips on their 

PFAS device also got covered in paint because they could not take their painting mitts off during 

the repositioning. (Tr. 348, 700; Ex. C-30 at 66.) 

According to Tower Maintenance, each painter was instructed to stay within the cage, or 

the truss structure, and not to venture out onto the arms where the electric distribution lines were 

attached. (Resp’t Br. at 11, 17.) The testimony from the painters, however, indicates that this 

was not clearly, effectively, communicated to them. According to Da Silva, they painted the 

arms on some towers, and by doing so, emerged out of the tower cage. (Ex. C-30 at 50.) Da 

Silva, however, testified that the arms for the tower at issue here were not to be painted. (Ex. C-
22 

30 at 74.) Fonseca Alves, on the other hand, testified that all of the arms for this tower were to 

be painted. (Ex. C-31 at 104.) 

Each tower took about one to two hours to paint. By the end of October, the painters 

typically painted eight to ten towers per day. (Tr. at 256; 425-426.) On October 25, 2012, the 

team was on their third tower for that day when the accident occurred. (Tr. at 287.) 

2. Project Supervision and Project Safety

Neither Elizabeth nor Peter Vlahopoulos directly supervised the painters on the worksite. 

Elizabeth Vlahopoulos visited the Edison project once between August and October 25, 2012. 

(Tr. at 911.) Peter Vlahopoulos visited the Edison project once or twice per week, dividing his 

time between the Edison project and another project. (Tr. at 1020-1021.) The two leaders on the 

Edison project were supervisor Nikolaos Psareas23 and foreman Josimar Mackeivicz. (Tr. at 

705-706.) 

As the supervisor, Psareas had the duty and responsibility to “follow through on the work 

and make sure we all work safely, and coordinate all the jobs through PSE&G.” (Tr. at 685.) He 

also was responsible for overseeing the progress of the job, making sure the job was done 

properly, and making sure everyone was following the safety rules. He had the authority to 

discipline employees and direct the work being performed. (Tr. at 685-686.) 

As the foreman, Mackeivicz would supervise his painters from the ground, looking up at 

the painters using binoculars. (Tr. at 1011-1012.) He testified that if he saw a painter working 

without being tied off, he would yell up to him and give him a verbal warning. (Tr. at 1012.) 

After that, according to Mackeivicz, the employee would have to leave the job site if he saw him 

working without being tied off again. (Tr. at 1012.) Mackeivicz testified that he had to give two 

 

23 Nikolaos Psareas’ wife’s cousin is Peter Vlahopoulos. (Tr. 687). 
23 

verbal warnings on the project at issue. (Tr. at 1012.) However, foreman Mackeivicz testified 

that he was not responsible for the safety of the employees. “I was responsible for telling them 

the details of the job, what was supposed to be done by them, but not for their safety.” (Tr. at 

333.) He had the authority to discipline employees and to recommend to his superiors “for 

someone to be fired.” (Tr. at 333.) 

The only formal Tower Maintenance safety policy in the record is the Health and Safety 

Plan (HASP) that was submitted to PSE&G as part of Tower Maintenance’s bid package. (Ex. 

C-3.) In the HASP, Peter Vlahopoulos and Nikolaos Psareas are noted as safety supervisors: 

Peter Vlahopoulos as the Project Director and Psareas as the Health and Safety Officer. (Ex. C-3 

at 4-5.) Both were responsible for safety on the project worksite. Peter Vlahopoulos was 

ultimately responsible for complying with the OSHA regulations. (Tr. at 944; Ex. C-3 at 4-5.) 

Although required by the HASP, the record does not contain any evidence that Tower 

Maintenance reviewed the HASP with its painters or required them to fill out an agreement 

stating that they would comply with its requirements. (Ex. C-3 at 6.) Foreman Mackeivicz 

testified that he was never shown the HASP before or during the Edison project at issue. (Tr. at 

336.) 

At the beginning of a typical workday, supervisor Psareas and foreman Mackeivicz met 

their crews in the morning, at about 6:00 a.m., at a staging site. (Tr. at 262-263.) At this staging

site, the crew cleaned and gathered their supplies, which included a PFAS device, and listened to 

instructions, if any, from Mackeivicz, who translated Psareas’ instructions from English to 

Portuguese. (Tr. at 263, 353, 737, 1008, 1013.) Accounts differed on whether the instructions 

included safety – but the weight of the evidence establishes that the painters experienced and 

expressed safety concerns on the worksite. Regarding the power lines, painters reported that if 
24 

they got too close to the power lines the hair on their skin would stand up. (Tr. at 252-253; C-31 

at 84.) Regarding their PFAS device, all of the painters in this case testified that they had 

concerns about their PFAS device operating correctly and frequently brought concerns regarding 

their PFAS device to the attention of supervisor Psareas and foreman Mackeivicz. The painters 

were concerned about their paint-covered “pelican” clips because the paint would cause the clips 

to jam and not close all the way.24 (Tr. at 144; 279-280, 347-348, 701-702; Ex. C-30 at 58-60; 

Ex. C-31 at 79-81.) Most of the time, the request for a new PFAS was rejected and the painters 

were instead told to clean their PFAS device more thoroughly. (Tr. at 279-280; Ex. C-30 at 58-

60; Ex. C-31 at 79-81.) 

Additionally, all of the painters, and the supervisors, including Peter Vlahopoulos, 

testified that accepted uses on the Tower Maintenance worksite of the PFAS device included: (1) 

wrapping the lanyard around a cross-bracing and attaching the clip back onto the lanyard itself, 

and (2) clipping onto step bolts. (Tr. at 272-274, 346-347, 703-704, 958, 990-991; Exs. C-30 at 

87-90, C-31 at 76-77, 109-111; Ex. R-50 at 37-38.) Sometimes, “on rare occasions,” painters did 

not tie off at all when their PFAS device prohibited them from reaching certain areas of the 

tower to paint. (Resp’t Br. at 14; Exs. C-30 at 88-89; C-31 at 76.) 

3. Training

The training evidence in the record is illuminating, revealing the employees who had 

received training, the type of training received, and the employees who had not received any 

training. (See App’x B.) Elizabeth Vlahopoulos took construction courses at Baruch University 

 

24 Based on the “pelican clip” description in the record, I find that the pelican clips are 

“snaphooks” as defined in subpart M of part 1926 and used in the section devoted to the 

requirements of a PFAS. 29 C.F.R. §§ 1926.500(b)(“Definitions: snaphook”);

§1926.502(d)(“Personal fall arrest systems”); 1910.269(g)(2)(i) (“Personal fall arrest equipment 

shall meet the requirements of Subpart M of Part 1926”); (Ex. R-50 at 36-37.) 
25 

after high school, including estimating and construction management. (Tr. at 911-912.) 

According to Ms. Vlahopoulos, she is “a C3 of a NACE Inspector level 2,” meaning that she is 

authorized to inspect paint coatings, for example on a bridge project.25 (Tr. at 912.) She has no 

degree in electrical engineering or physics. (Tr. at 912.) Ms. Vlahopoulos also testified: 

Q: So you have no real formal education in the field of electrical behavior, how 

electricity behaves; correct? 

A: I believe I have what I'm required to have for painting, yes. If the 

requirements -- if I'm required to have more at some point, I will get more. 

(Tr. at 912.) The record shows that she attended a “C-5 Supervisor / Competent Person 

Refresher Training for Deleading of Industrial Structures” training course on June 11, 2012.26 

(Ex. C-22 at 14-16.) 

Peter Vlahopoulos took a certified climbing course, and also attended the “C-5 

Supervisor / Competent Person Refresher Training for Deleading of Industrial Structures” 

training course on June 11, 2012. (Tr. at 991; Ex. C-22 at 14-15, 18.) He did not personally 

provide training to any employee on the Edison project at issue. (Tr. at 941.) 

Supervisor Psareas and foreman Mackeivicz took training courses in the following 

subject areas in the spring of 2012 and in August 2012: Fall Protection, OSHA 10, Electrical Arc 

Flash Safety, Authorized Climber, and Sub Station Awareness. (Tr. at 1013; Exs. C-2; C-22 at

5-7; C-23 at 4-6; C-24 at 4, 5-13, 86, 91-99, 107). In addition, foreman Mackeivicz took Tower 

Rescue & Competent Climber training (Ex. C-24 at 108-121). After the October 25, 2012 fatal 

accident supervisor Psareas took a Competent Tower Climber / Rescuer Training in November 

 

25 Although the record does not indicate what “NACE” stands for, a cursory search reveals that 

Ms. Vlahopoulos was likely referring to NACE International, The Worldwide Corrosion 

Authority. http://www.nace.org/About-NACE/ 

26 The documentation for this course indicates that it was most likely associated with The Society 

for Protective Coatings (SSPC). (Ex. C-22 at 16); http://www.sspc.org/about-us/about-us-home. 
26 

2012. Supervisor Psareas also previously took the following training courses: Boots on the Roof

(2009), OSHA 10 (2010), Lead Contractor and Lead Supervisor (1996). (Ex. R-38; Ex. R-50 at 

19-24.) Neither supervisor Psareas nor foreman Mackeivicz personally trained or checked 

previous training certificates of the Tower Maintenance painters for the Edison project. (Tr. at 

335-336; 688-689.) 

With regard to JV, RS, Fonseca Alves, and Da Silva, the four workers central to this case, 

the record shows the following training occurred in the spring – fall of 2012: Fall Protection 

(Fonseca Alves, Da Silva, RS), OSHA 10 (Fonseca Alves), Electrical Arc Flash Safety (Fonseca 

Alves), and Authorized Climber (Fonseca Alves.)27 (Exs. C-22, 23, 24.) The record does not 

contain any training certificates for the deceased JV. 

The parties stipulated that on October 25, 2012, the day of JV’s electrocution and RS’ 

fall, Tower Maintenance employed at least twenty-five employees. (Ex. J-1 ¶¶ 11, 19.) The 

parties further stipulated that eleven employees were employed that day engaged in tower 

painting work on the PSE&G transmission tower painting project.28 (Ex. J-1 ¶¶ 17 through 27; 

App’x B.) Of those, the record reveals that six of the tower painters had received no training 

from Respondent. The record does not contain any training certificates for Marcelo Leiroz, 

Ederson Trizotte, Osias Figugiredo, Domingos Da Silva, Euflates Passos, or JV. (Ex. J-1 ¶¶ 21-

23 and 25-27.) 

 

27 The certificates for Fonseca Alves notate the name “Alan Kedis Fonseca.” Fonseca Alves’ 

testimony is consistent with these certificates and their timing, supporting a finding that these 

certificates are his. (Ex. C-31 at 32-42; App’x B); see also Ex. R-50 at 28, 31 (Psareas testified 

that Alan Kedis is also known as Alan Fonseca Kedis; also known as Alan Kedis Fonseca); Tr. at 

717-718 (parties’ stipulated resolution of confusion regarding employee’s name.) See p. 11 n.15

supra.

28 The record contains the following training certificates for the other Tower Maintenance 

painters “engaged in tower painting work” on October 25, 2012: Fall Protection (Almeida), 

Authorized Climber (Resende), and Sub Station Awareness (Resende). (Exs. C-2, 22; J-1 at 

¶¶ 12-13, 17-27; App’x B.) 
27 

4. The Accident 

The painting crew for a single tower consisted of approximately three to six painters and 

one supervisor. (Tr. at 255.) On October 25, 2012, there were two crews. (Tr. at 705-706.) 

After the morning meeting was over, the crews loaded up into a truck and headed over to a 

tower. (Tr. at 264.) Supervisor Psareas’ crew went to the tower at issue. Foreman Mackeivicz 

and his crew went to another tower about a mile away. (Tr. at 345.) 

Once they got to the tower, Psareas’ crew waited until the representative from PSE&G 

gave them permission to ascend the tower and start painting. (Ex. C-30 at 70-71.) While they 

were waiting for Psareas to talk with the PSE&G representative, the painters prepared their paint. 

Once given permission, the painters ascended the tower to their designated positions. The record 

establishes that the painters designated their positions themselves. (Tr. at 264; Exs. C-30 at 70-

71; C-31 at 93-97.) Psareas left the worksite to make a telephone call after two painters began 

ascending the tower, “some of the guys were doing the floor,” and before the other painters 

started ascending the tower. Psareas did not see the accident. (Tr. at 706.) 

Psareas’ crew included the following painters positioned from the top of the tower on 

down: Fonseca Alves, JV, Da Silva, and RS. (See, e.g., Ex. C-30 at 71; Ex. 14B). According to 

OSHA Compliance Officer (CO) Lonnia Simmons, she was told that JV was working at an 

approximate 70 feet height and that RS was at a 40 feet height at the time of the accident. (Tr. at 

151.) JV and Da Silva were stationed closest to each other. According to Da Silva, he was 

sitting down inside the tower getting ready to paint when he watched JV climb the ladder and 

step off to the other side within the tower cage near the No. 3 power line. (Ex. C-30 at 75-76.) 

Da Silva turned his head, and in a matter of seconds, heard a loud noise like a bomb. (Ex. C-30 

at 85-87.) He then saw JV fall and hit RS, who was climbing below, according to Da Silva. (Ex. 
28 

C-30 at 85.) According to Fonseca Alves, JV followed him up the step ladder. (Ex. C-31 at 100-

101.) As he was getting off the ladder at his designated location, JV asked Fonseca Alves what 

section to paint. (Ex. C-31 at 100-101.) Fonseca Alves then continued up ten step bolts, and 

then heard a loud explosion. (Ex. C-31 at 98.) He did not recognize at first what happened, but 

then he saw both JV and RS on the ground below. (Ex. C-31 at 98-99.) RS could not recall the 

events leading up to the accident. (Tr. at 288-289.) 

Fonseca Alves identified, in a photograph, a strip of green paint, the color they were 

using that day, on the tower cage that JV had painted. (Exs. 15C; C-31 at 106.)29 According to 

Fonseca Alves, the No. 3 power line would have been 2 – 2 1⁄2 feet from a painter’s back when 

he painted that green strip. (Ex. C-31 at 108.) 

5. Post-Accident Investigation 

At 12:02 p.m. on October 25, 2012, the Edison police department investigated the 

accident to ensure that it was an accident and not a crime. (Tr. at 73-74.) Upon arrival, the 

police department investigator saw emergency vehicles from the police department, fire 

department, the New Jersey state police, and emergency medical services. (Tr. at 75.) The 

investigator spent forty minutes at the worksite and took photographs of the accident scene. (Tr. 

at 78, 88; Exs. C-10, C-14, C-15, C-16.) He then collected safety harnesses and took them back 

to the police department headquarters as evidence. (Tr. at 86-87.) An autopsy performed on JV 

concluded that the cause of his death was electrocution. (Ex. C-12 at 5; J-1 ¶ 14.) 

 

29 Da Silva testified that he thought Fonseca Alves would have painted that strip of paint, 

although he did not see Fonseca Alves paint it. (Ex. C-30 at 80-81.) Fonseca Alves testified that 

JV painted that strip, indicating that he, Fonseca Alves, did not paint that strip. (Ex. C-31 at 

106.) Based on this testimony and the fact that the strip was painted green, the color the painters 

were using that day, it is reasonable to conclude and the evidence supports a finding that JV 

painted that strip.
29 

As a result of a media referral, OSHA CO Simmons conducted an investigation of the 

worksite. (Tr. at 113-114.) She arrived at the worksite at 1:30 p.m. on the day of the accident. 

(Tr. at 114.) When she arrived, only the PSE&G representative and two police officers were 

there. (Tr. at 115.) Debris, including paint buckets, was on the ground. (Tr. at 115.) The Tower 

Maintenance employees had been taken to the Edison police department to be interviewed. (Tr. 

at 117.) CO Simmons spoke with Elizabeth and Peter Vlahopoulos by telephone the following 

day, and eventually spoke with Nikolaos Psareas and Robert Palermo.

30 (Tr. at 119.) In June 

2013, several months after the October 2012 accident, CO Simmons went to the police 

department and took pictures of the harnesses that had been taken into evidence on the day of the 

accident. (Tr. at 171-172; Exs. C-17, C-18.)31 

Discussion

Were Respondent’s employees “qualified”?

As discussed above, the threshold issue in this case is whether Respondent’s employees 

were “qualified” persons to work on the tower at issue here. For the following reasons, I find 

that the record evidence establishes that these painters were not “qualified,” as defined in the 

 

30 Mr. Palermo was the controller of Tower Maintenance. (Tr. at 121.)

31 Respondent contends that RS and Fonseca Alves lack credibility and therefore their testimony 

should be accorded less weight. (Resp’t Br. at 12-13.) Respondent claims that RS was evasive 

and swayed by a private lawsuit, and that Fonseca Alves was also swayed by a private lawsuit. 

Respondent also claims that portions of Fonseca Alves’s testimony were in direct contradiction 

to other witness testimony. 

I find RS and Fonseca Alves to be credible witnesses. RS and Fonseca Alves answered the 

questions they were asked. RS was not evasive, he was forthcoming with his knowledge of the 

traumatic events he experienced and what he remembered of his training. Both RS and Fonseca 

Alves testified in an overwhelmingly consistent manner with each other as well as with Da Silva. 

To the extent that Fonseca Alves’ testimony regarding his understanding that the tower arms 

were to be painted differed from the testimony of the PSE&G representative regarding the 

project scope, I find that Fonseca Alves’ honestly testified regarding his personal understanding 

of the project scope. As discussed above, the scope of the painting job was not clearly 

communicated to the tower painters. See p. 17-18 supra. 
30 

cited standards. Furthermore, I find that supervisor Psareas and foreman Mackeivicz also were 

not “qualified.” 

The term “qualified person” is defined in both subpart S at 29 C.F.R. § 1910.399, 

“Definitions applicable to this subpart,” and at 29 C.F.R. § 1910.269(x), “Definitions.” Subpart 

S defines the term “[q]ualified person” as “[o]ne who has received training in and has 

demonstrated skills and knowledge in the construction and operation of electric equipment and 

installations and the hazards involved.” 29 C.F.R. § 1910.399.32 Section 1910.269 provides that 

a “[q]ualified employee (qualified person) [is] one knowledgeable in the construction and 

operation of the electric power generation, transmission, and distribution equipment involved, 

along with the associated hazards.” 29 C.F.R. § 1910.269(x).33 I find that, under either 

 

32 This definition is followed by the following note: 

Note 1 to the Definition of ‘Qualified person:’ Whether an employee is 

considered to be a ‘qualified person’ will depend upon various circumstances in 

the workplaces. For example, it is possible and, in fact, likely for an individual to 

be considered ‘qualified’ with regard to certain equipment in the workplace, but 

‘unqualified’ as to other equipment. (See 1910.332(b)(3) for training 

requirements that specifically apply to qualified persons.) 

29 C.F.R. § 1910.399. 

Section 1910.332(b)(3), Training: Additional requirements for qualified persons provides: 

Qualified persons (i.e., those permitted to work on or near exposed energized 

parts) shall, at a minimum, be trained in and familiar with the following: (i) The 

skills and techniques necessary to distinguish exposed live parts from other parts 

of electric equipment, (ii) The skills and techniques necessary to determine the 

nominal voltage of exposed live parts, and (iii) The clearance distances specified 

in section 1910.333(c) [the standard under which the Secretary alleges a violation 

here] and the corresponding voltages to which the qualified person will be 

exposed. 

This is followed by: “Note 1: For the purposes of sections 1910.331 through 1910.335, a person 

must have the training required by paragraph (b)(3) of this section in order to be considered a 

qualified person.” 

33 This definition is followed by the following note: “Note 1: An employee must have the 

training required by paragraph (a)(2)(ii) of this section in order to be considered a qualified 

employee.” 29 C.F.R. § 1910.269(x). 
31 

definition, the Secretary has established that painters RS, Da Silva, and Fonseca Alves, and the 

deceased JV, were not qualified persons with regard to the electric safety-related hazards 

involved with the electric transmission tower they were painting on October 25, 2012. 

The Secretary asked three of these employees questions related to aspects of the 

qualifications of a “qualified person,” as defined in both subpart S and § 1910.269. Both 

definitions require, at a minimum, familiarity with “nominal voltage” and knowledge of 

“clearance distances / minimum approach distances” with respect to a specified voltage. 29 

C.F.R. § 1910.332(b)(3); 29 C.F.R. § 1910.269(a)(2)(ii). With regard to “nominal voltage,” the 

Secretary asked RS, Da Silva, and Fonseca Alves whether they were “familiar with the term 

nominal voltage,” and whether they knew how to calculate the “nominal voltage” of an overhead 

electrical / transmission power line or a circuit.34 (Tr. at 250-251; Ex. C-30 at 33; Ex. C-31 at 

 

29 C.F.R. § 1910.269(a)(2)(ii) provides: 

Qualified employees shall also be trained and competent in: (A) The skills and 

techniques necessary to distinguish exposed live parts from other parts of electric 

equipment, (B) The skills and techniques necessary to determine the nominal 

voltage of exposed live parts, (C) The minimum approach distances specified in 

this section corresponding to the voltages to which the qualified employee will be 

exposed, and (D) The proper use of the special precautionary techniques, personal 

protective equipment, insulating and shielding materials, and insulated tools for 

working on or near exposed energized parts of electric equipment. 

34 Section 1910.399 defines the term “Voltage, nominal” as: 

[a] nominal values assigned to a circuit or system for the purpose of conveniently 

designating its voltage class (As 120/240 volts, 480Y/277 volts, 600 volts). The 

actual voltage at which a circuit operates can vary from the nominal within a 

range that permits satisfactory operation of equipment.

Section 1910.269(x) defines the term “voltage” as:

[t]he effective (rms [root-mean-square]) potential difference between any two 

conductors or between a conductor and ground. Voltages are expressed in 

nominal values unless otherwise indicated. The nominal voltage of a system or 

circuit is the value assigned to a system or circuit of a given voltage class for the 

purpose of convenient designation. The operating voltage of the system may vary 

above or below this value. 
32 

42-43.) None of them answered in the affirmative. (Id.) The Secretary also asked them if they 

knew what the “minimum approach distance” was for a 26 kilovolt power line. (Tr. at 252; Ex. 

C-30 at 35; Ex. C-31 at 45-46.) None of them testified that they knew the answer. (Id.) Da 

Silva testified that he has never known the answer to that question. (Ex. C-30 at 35.) Da Silva 

testified that he was told that the minimum approach distance for a 138 kilovolt power line was 6 

feet, and that in any case, he always stayed within “the box” and would never “get near” any 

power lines. (Ex. C-30 at 35-36.) Fonseca Alves testified that he was told to stay at least 6 feet 

from any cable on the arms of a power tower. (Ex. C-31 at 43-44.) 

The answers to the Secretary’s questions establish that painters RS, Da Silva, and 

Fonseca Alves lack the requisite familiarity with regard to determining the nominal voltage of an 

exposed power line, as well as the appropriate clearance distance / minimum approach distance 

for an exposed 26 kilovolt power line. 29 C.F.R. § 1910.332(b)(3); 29 C.F.R. § 1910. 

269(a)(2)(ii). These painters therefore were not “qualified persons” at the Tower Maintenance 

worksite on October 25, 2012. 

With regard to JV, there is little evidence in the record regarding his familiarity with 

“nominal voltage” or the requisite clearance distance / minimum approach distance with respect 

to a given voltage. The record, however, establishes that JV was never trained in this area. JV 

was hired two weeks before the incident on October 25, 2012. (Tr. at 183.) Tower Maintenance 

did not train JV during that two-week period. He was scheduled to take training in November 

2012. (Tr. at 183. See App’x B.) According to the CO, Tower Maintenance alleged that JV 

presented them with a training certificate from where he worked prior to joining Tower 

Maintenance before he was hired. (Tr. at 183.) The certificate was not produced to the Secretary 

during this proceeding because, according to Respondent, the record allegedly was lost during 
33 

Hurricane Sandy. (Tr. at 184; Resp’t Br. at 14.) Instead, Respondent produced the names of the 

training providers it used to train its employees. (Ex. C-6 at ¶ 9, Responses to Secretary’s 

Interrogatories.) All of the training providers provided affidavits denying that they had any 

records that they trained JV.35 (Exs. C-22, C-23, C-24; App’x B.) 

Respondent also stated that “to ensure the adequacy of training, the main office verifies 

the completion of training and completion of new hire orientation documents.” (Ex. C-6 at ¶ 9, 

Responses to Secretary’s Interrogatories.) Respondent claimed that foreman Mackeivicz and 

supervisor Psareas were in charge of ensuring adequate training of its employees. (Ex. C-6 at 

¶ 5.) Respondent further claimed that “[t]he competent person verifies [the new hire’s] work 

ability and knowledge directly in the field.” (Ex. C-6 at ¶ 9.) However, both foreman 

Mackeivicz and supervisor Psareas testified at the hearing (1) that they were not responsible for 

safety training and (2) that they did not check the training certificates of their employees. (Tr. at 

335-336; 688-689.) This testimony not only contradicts Respondent’s claim, but it also supports 

 

35 None of these training providers claimed that their records were incomplete due to Hurricane 

Sandy. (Exs. C-22, C-23, C-24.) I give these statements great weight and find that their records 

are complete. Fed. R. Evid. 803(7), 902(11); see also Tr. at 746-750 (discussing application of 

hearsay exception and authentication with regard to the training records). I also give the absence 

of training records great weight, and draw the inference – based on the absence of training 

records - that some employees on the Edison worksite, including JV, were not trained regarding 

the hazards present at this worksite (working at great heights, working on towers supporting 

uninsulated, live, high voltage electrical circuits). The bald, unsubstantiated, claim in 

Respondent’s Brief that training records for the employees working on the PSE&G Edison 

project were destroyed due to Hurricane Sandy is given no weight. (Resp’t Br. at 14.) No 

documents (such as insurance claims or business records subpoenaed from other alleged training 

providers or alleged prior employers who provided training) or witnesses (trainers, employees 

who observed or participated in the training) were presented by Respondent. 

Respondent’s argument that the training documentation in the record is not indicative of the 

complete amount of training provided to Tower Maintenance’s employees is also rejected. No 

inference is drawn that additional training was provided to Respondent’s employees. 

Respondent had ample opportunity to gather training documents from alternative sources such as 

training providers or alleged prior employers, or to elicit direct witness testimony regarding the 

specific training provided, but failed to do so. Accordingly, this uncorroborated, unsubstantiated 

claim is unbelievable and not credited. 
34 

the Secretary’s claim that Respondent did not check for JV’s training certificates before letting 

him work on the transmission tower. 

Based on this record evidence, the Secretary has established a prima facie showing that 

JV was not trained or certified in the work he was performing on the Tower Maintenance Edison 

project worksite. Respondent failed to rebut this showing with any supportive evidence even 

though it is in the best position to provide such evidence. Well Solutions, Inc., Rig No. 30, 17 

BNA OSHC 1211, 1214-15 (No. 91-340, 1995)(holding that the Secretary can rely on “best 

available evidence” to establish decedents’ lack of training and that slim showing of prima facie

case is sufficient absent rebuttal by party who has “full possession of all the facts.”) Therefore, I 

find that the Secretary has established based on the evidence above that JV was also not a 

“qualified person” as used in 29 C.F.R. § 1910.332(b)(3) and 29 C.F.R.§ 1910. 269(a)(2)(ii), 

because he was never trained in the hazards under these standards.36 

Moreover, the record does not establish that supervisor Psareas and foreman Mackeivicz 

had the requisite training and competence of a “qualified person” as required under 29 C.F.R. 

§ 1910. 269(a)(2)(ii). Although their training certificates reflect recent training in fall protection 

and arc flash (two courses directly applicable in this instance), both Psareas’ and Mackeivicz’s 

answers to questions at the hearing did not reflect competence in these areas. (See App’x B.) 

Their answers were non-committal or evasive, and in some instances, self-incriminatory. For 

example, Psareas knew that to work within 10 feet of an exposed 26 kV power line, a worker had 

to be qualified. (Tr. at 743.) Yet, he passed off to PSE&G the responsibility of determining 

whether a “qualified” person should be able to calculate nominal voltage. (Tr. at 743.) 

 

36 Further, as discussed above, the record reveals that on October 25, 2012, six of Respondent’s 

painters, including JV, working on the Edison project also had received no training from 

Respondent in the inherently dangerous working conditions to which they were exposed painting 

electric transmission towers supporting energized electric lines. See p. 22 supra; App’x B. 
35 

Similarly, with Mackeivicz, he knew that the calculation of a minimum approach distance 

depended on voltage, which could vary by the tower. (Tr. at 349.) Yet, he did not know how to 

answer the following question: “How do you calculate the nominal voltage of a power line?” 

(Tr. at 349.) The responses by both Psareas and Mackeivicz, the supervisor and foreman on 

Respondent’s Edison project, illustrate knowledge of what is required, but not competence to be 

able to implement what is required. Therefore, I find that supervisor Psareas and foreman 

Mackeivicz also were not qualified to paint the Edison electric transmission tower supporting 

energized electric lines, raising questions about whether they were suitable to supervise the 

unqualified painters working on the Edison project tower on October 25, 2012. 

Merits of the Alleged Violations

To prove a violation of an OSHA standard, the Secretary must establish that (1) the cited 

standard applies, (2) there was a failure to comply with the cited standard, (3) employees had 

access to the violative condition, and (4) the employer knew or could have known of the 

condition with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 2126, 

2129 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 691 (D.C. Cir. 1980). 

I. Serious Citation 1, Item 1: Alleged Electrical Safety Violation 

The Secretary alleges that Tower Maintenance violated 29 C.F.R. 

§ 1910.333(c)(3)(i)(A)(1), which provides: 

When an unqualified person is working in an elevated position near 

overhead lines, the location shall be such that the person and the longest 

conductive object he or she may contact cannot come closer to any 

unguarded, energized overhead line than the following distances: (1) for 

voltages to ground 50 kV or below – 10 ft. 

29 C.F.R. § 1910.333(c)(3)(i)(A)(1). The Secretary claimed the following:

(a) Tower Maintenance Corporation / Route 1 North Edison, NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels: on or about 
36 

10/25/2012, the employer failed to ensure that unqualified employees who 

performed work from an elevated position near overhead lines were located in a 

position such that the employee, or any conductive object used by the employee, 

did not come within 10 feet of any unguarded, energized overhead line. 

Amended Complaint at ¶ VII.37

A. The Secretary has established that 29 C.F.R. § 1910.333(c)(3)(i)(A)(1) applies 

As noted above, the working conditions cited for this alleged violation fall

under §1910.269. However, a threshold issue is whether the Tower Maintenance painters were 

“qualified” employees as defined in the cited standard. As discussed above, I find that the record 

evidence establishes that the painters were not “qualified.” Therefore, the cited standard under 

subpart S applies to the electrical safety-related hazards in this case. These painters were 

obligated to keep at least a 10 foot distance from the energized 26 kilovolt power line at issue in 

this case in compliance with 29 C.F.R. § 1910.333(c)(3)(i)(A)(1).38 

 

37 As discussed above, the Secretary alleges in the alternative a violation of 29 C.F.R. 

§ 1910.269(l)(2), which provides: 

Minimum approach distances. The employer shall ensure that no 

employee approaches or takes any conductive object closer to exposed 

energized parts than set forth in Table R-6 through Table R-10 unless [the 

employee is insulated from the energized part, or the energized part is 

insulated from the employee and from any other conductive object at a 

different potential, or the employee is insulated from any other exposed 

conductive object.]. 

The Secretary claimed the following:

(a) Tower Maintenance Corporation / Route 1 North Edison, NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels: the employer 

failed to ensure that no employee or conductive object approached within 2 feet, 4 

inches, of exposed energized electrical lines while performing a repainting 

operation on or about 10/25/2012. 

Amended Complaint at ¶ VII. Given the voltages of the exposed energized power lines attached 

to the tower (26 kV and 138 kV), the minimum approach distance under this standard cited in the 

alternative (section 1910.269), was 2 feet, 4 inches. (Amended Complaint at ¶ VII.) 

38 Other aspects of the cited standards unquestionably apply. It is undisputed that, at the time of 

the accident, Tower’s employees, including JV and RS, were in an elevated position on the 
37 

Respondent claims that the citation should be vacated because the Secretary has not 

established that any standard applies to the facts of this case. (Resp’t Br. at 8.) With regard to 

the cited standard and the standard cited in the alternative, Respondent claims that they “lack 

clarity” and are “contradictory in terms of what behavior is required for compliance.” (Resp’t 

Br. at 9.) Respondent seems to argue that the standards are contradictory because each standard 

has a different approach distance for “qualified persons.” (Resp’t Br. at 9-10.) Respondent’s 

unsupported argument in this regard is rejected. First, as discussed above, the employees at issue 

here are not “qualified persons,” so Respondent’s argument is not dispositive. Second, § 

1910.269 applies to qualified persons on transmission towers, a situation that is more specific 

than the general provisions for “qualified persons” set forth in subpart S. The standards are 

therefore not contradictory. 

Respondent further argues that the entire citation should be vacated because, as 

evidenced by the Secretary’s multiple amendments to the citation, Respondent lacked fair notice 

and “[w]as left to guess for itself which of three separate standards needed to be adhered to[.]” 

(Resp’t Br. at 11.) For the following reasons, Respondent’s arguments are rejected. 

First, Commission rules allow for filing alternative claims. 29 C.F.R. § 2200.30(e). The 

Secretary followed the Commission’s rules in filing an unopposed motion to amend the citation 

to allege alternative claims under different standards, and the unopposed motion was approved

after finding no evidence of prejudice to Tower Maintenance. See Order Granting the 

Secretary’s Motion to Amend the Citations and Complaint (July 31, 2014). Respondent 

 

power tower. Respondent also does not dispute that: power lines were located above (i.e., 

overhead) all of the employees working on the tower; the power lines themselves were 

unguarded, exposed and not insulated; and the power lines that were energized were operating at 

more than 50 volts. 29 C.F.R. § 1910.333(c)(3)(i)(A)(1); 29 C.F.R. § 1910.269(l)(2); 29 C.F.R. 

§ 1910.269(l)(1)(i). 
38 

subsequently stipulated that 29 C.F.R. Part 1910, as opposed to the original cited standards under 

Part 1926, applied to the work that was performed at the worksite at issue in this case. (Ex. J-1 

at II ¶ 4.) 

Second, as the Secretary points out, the applicability of the cited standard depended on a 

factual issue, whether Tower Maintenance’s employees were “qualified,” that was to be litigated. 

(Sec’y Reply Br. at 2.) It was not because, as Respondent claims, “the government cannot 

decide upon which regulation was violated[.]” (Resp’t Br. at 8.) And, as discussed above 

regarding the amendments to this citation, the record shows that Respondent had the opportunity 

and did fully litigate the factual and legal issues in the Amended Complaint. Nat’l Realty & 

Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973)(“So long as fair notice is 

afforded, an issue litigated at an administrative hearing may be decided by the hearing agency 

even though the formal pleadings did not squarely raise the issue.”). 

Finally, it is noted that Respondent’s own HASP includes a table of minimum approach 

distances that is almost identical to OSHA’s Table R-6, which is incorporated by reference to the 

standard cited in the alternative, i.e., the standard that would apply if the evidence showed that 

Tower Maintenance’s employees were “qualified.” 29 C.F.R. § 1910.269(l)(2). (Ex. C-3 at 19 

“App’x A.”) Respondent’s due process claim is rejected. 

The Secretary has established that the cited standard, 29 C.F.R. 

§ 1910.333(c)(3)(i)(A)(1), applies.

B. The Secretary has established that Respondent violated the cited standard

The Secretary argues that Respondent violated the cited standard when its employees 

came within 10 feet of the energized power line while painting the transmission tower. (Sec’y 

Br. at 26.) There is no evidence in the record that shows the accident itself, or that establishes 
39 

the precise distance between any one Tower Maintenance employee and any one power line. 

Respondent relies on this lack of evidence to claim that the Secretary failed to establish a 

showing of noncompliance with the standard. Respondent claims that the Secretary has failed to: 

(1) show “any evident causal link between the violations charged and the proffered cause of the 

accident,” and (2) “provide a reliable measurement” of the distance between JV and the 

energized line. (Resp’t Br. at 8.) For the following reasons, Respondent’s arguments are 

rejected.

With regard to Respondent’s first argument, that the Secretary failed to show a causal 

link between the alleged violation and the accident itself, the record does not support 

Respondent’s claim. Both the cited standard and the standard cited in the alternative restrict not 

only an employee from approaching too close to an energized power line, but also any 

conductive object that is connected to that employee. See 29 C.F.R. § 1910.333(c)(3)(i)(A)(1) 

(“the location shall be such that the person and the longest conductive object he or she may 

contact cannot come closer to any unguarded, energized overhead line than the following 

distances: (1) for voltages to ground 50 kV or below – 10 ft.)(emphasis added); 29 C.F.R. 

§ 1910.269(l)(2) (“no employee approaches or takes any conductive object closer to exposed 

energized parts than [2 feet 4 inches].” (emphasis added)). 

The Secretary’s expert opined that the most likely cause of the electrocution was that JV 

brought the conductive paint he was using too close to an energized power line.39 (Tr. at 620-

 

39 David Wallis was qualified as an expert in electrical engineering and electrical safety. (Tr. at 

587.) The Secretary introduced Wallis, former OSHA Director of Standards and Guidance, as an 

expert in this case “on the limited issues of how the minimum approach distance was calculated, 

the maximum arcing distance of electric currents, and possible causation of the accident at issue 

in this case.” (Tr. at 541, 562; Ex. C-29.) He is the “primary author” of OSHA’s electrical 

safety standards found in subpart S of 1910, § 1910.268, § 1910.269, subpart K of 1926 and 

subpart V of 1926. (Tr. at 544-545.) He retired one month before the hearing in this case and 
40 

625.) He came to this opinion based on his review of the nature of JV’s burns from the autopsy 

report and the nature of burns from JV’s PFAS device. He ruled out the possibility of direct 

contact between JV and a power line because his burns were not severe enough. (Tr. at 621.) He 

ruled out the possibility that JV’s lanyard contacted the power line because he did not see any 

burn marks on the lanyard or lanyard clip. (Tr. at 621.) Rather, JV had less severe burns on his 

thumb and another finger, and a more severe burn on his thigh. (Tr. at 622.) Therefore, he 

concluded that an arc, rather than direct contact, with the power line must have occurred, and it 

must have occurred through the conductive paint. (Tr. at 622.) The electricity then travelled to 

and through JV, and then grounded, through JV’s thigh, with the tower, which JV was most 

probably straddling. (Tr. at 623-624.) The expert ruled out the possibility that JV fell first and 

then fell into an energized power line because JV’s burns were inconsistent with such a situation. 

His burn injuries would most probably have been more numerous, “[t]here would be entry and 

exit burns with every part that contacted the line[,]” and would have been more severe, such as 

“amputations of at least a finger” through the direct contact. (Tr. at 625-626.) Respondent does 

not dispute this portion of the expert’s testimony. 

Respondent, instead, claims that the Secretary’s expert testified that “there was no 

maximum limit to the distance that the electrical arc could have traveled from the circuit in 

question before coming to ground via contact with JV,” seeking to argue that the expert’s 

opinion cannot establish that JV was within the restricted distance to the energized power line. 

(Resp’t Reply Br. at 3.) Respondent, however, misunderstands the expert’s testimony. The 

expert testified, “[a]fter the arc is established,” there is no limit to the distance “you can move 

 

was being compensated for his services at $135 per hour. (Tr. at 550.) He has a bachelor of 

Electrical Engineering degree from Stevenson Institute of Technology and has attended 

graduate-level courses in electrical engineering. (Tr. at 550-551.) Wallis’ testimony was 

detailed, well supported, and very helpful. His testimony is given great weight. 
41 

through the ionized air.” (Tr. at 648.) The cited standard seeks to prevent establishing the arc in 

the first place, which according to the Secretary’s expert, unfortunately occurred here. 

The Commission case, Par Electrical Contractors, Inc., 20 BNA OSHC 1624, 1626 (No. 

99-1520, 2004) is similar to this case because it involved an electrocution, no eyewitness to the 

actual incident, and a minimum approach distance.40 In Par, the Commission used “reasonable 

inferences from circumstantial evidence” and found a breach of a 2 foot approach distance based 

on the decedent’s wounds in the autopsy report. Respondent claims that Par is not applicable 

here because Par’s employees were not painters but were manually installing electrical wire only 

2 and 1/4 inches from the approach distance’s outer limit. (Resp’t Reply Br. at 2.) Respondent, 

however, has not addressed the Secretary’s point: that the Commission has previously relied on 

reasonable inferences based on circumstantial evidence to find a violation of a minimum 

approach distance based on the electrocuted decedent’s injuries. Additionally, Respondent does 

not offer any evidence to contradict the Secretary’s expert’s opinion as to the cause of the 

electrocution. It is reasonable to infer in this case that JV, and a conductive object he was in 

contact with, came within the minimum approach distance of 10 feet to the 26 kV transmission 

line because he was electrocuted.41 This finding is also based on the expert witness’ opinion 

regarding JV’s burn marks. 

 

40 The standard at issue in Par was 29 C.F.R. § 1926.950(c)(1)(i), regulating electrical safety 

approach distances at a power transmission and distribution construction worksite. 

41 The Secretary persuasively points out that the minimum approach distance, even the shorter 2 

feet 4 inch distance prescribed in the standard cited in the alternative, takes into account 

inadvertent movement by employees and the potential for human error, and therefore has a factor 

of safety incorporated into it. (Sec’y Br. at 29 n.24.) Even with this factor of safety, JV and an 

object he was connected to came so close to the power line that he was electrocuted. Therefore, 

it is also reasonable to infer that JV and a conductive object he was in contact with came within 2 

feet 4 inches of the energized power line under these same circumstances. 
42 

With regard to Respondent’s second argument, that the Secretary failed to provide a 

reliable measurement of how close JV came to an energized power line, the record also does not 

support Respondent’s claim. Precise evidence is not required to establish a violation here. The 

Secretary relies on the evidence in the record that establishes the range at which JV, and a 

conductive object he was in contact with, could have been from the No. 3 power line, and it is 

less than 10 feet.

It is undisputed that Tower Maintenance’s employees climbed up the tower using a 

ladder made of step bolts that ran up one leg of the tower to the tower’s mid-level, and then the 

step bolts ran up the center line of the cage to the very top of the tower. (Tr. at 138-139; Exs. C14a; C-31 at 66.) The record shows that the energized power line No. 3 was located above midlevel, so that the step bolt ladder at the horizontal level of power line No. 3 ran up the center line 

of the tower. (Ex. C-14a.) Power line No. 3 was 6 feet 5 and 1⁄2 inches from the centerline of the 

tower. (Tr. at 492.) 

Therefore, any Tower Maintenance employee who scaled the ladder came within the 

restricted distance when passing the No. 3 power line, and therefore violated the 10 foot 

minimum approach distance. The record shows that painter Fonseca Alves climbed up the step 

bolts past power line No. 3 on his way to the top of the tower. (Ex. C-31 at 97, 100; Ex. C-14C.) 

JV also dismounted the step bolt ladder and went to the side of the tower cage closest to power 

line No. 3. (Ex. C-30 at 76, 80-81; 104; C-31 at 97-98.) At a minimum, both employees 

Fonseca Alves and JV were 6 feet 5 and 1⁄2 inches from the power line No. 3 while they were 

scaling the step ladder up past power line No. 3 – well within the restricted distance, 10 feet, of 

the cited standard. 
43 

Moreover, from the center line of the tower body (which is the furthest any employee 

could be, in the power line’s horizontal plane, from a given power line due to the symmetric 

nature of the power lines attached to either side of the electric transmission tower), most of the 

power lines were less than 10 feet; two were 12 feet. (Tr. at 490-494; Exs. C-14F, C-40.) The 

narrowest width of the tower cage was 4 feet 8 inches. (Tr. at 495; see also Ex. C-40.) It 

follows that, from the edge of the tower cage, none of the power lines were more than 10 feet. 

(Tr. at 495.) Therefore, any employee painting the edge of the tower cage would have been 

closer than 10 feet, horizontally, to any one of the power lines.42

The record also supports a finding, based on circumstantial evidence, that JV breached 

the 2 feet 4 inch restricted distance provided under the standard cited in the alternative. 

Testimonial accounts place JV within the tower cage near power line No. 3, the line that was 

closest to, and only 2-3 feet from, the edge of the tower cage, moments before the explosion. 

(Ex. C-30 at 71-81; Ex. C-31 at 100-101; Exs. 14B, 14C.) One witness, Fonseca Alves, testified 

that JV had just finished painting a portion of the tower right before the explosion. (Ex. C-31 at 

105-109. See p. 24 n.29 supra.) This testimony is supported by pictures in the record that show 

that the vertical portion of the tower cage nearest to power line No. 3 was green, which was the 

color that the painters were using that day. (Ex. C-15C; Tr. at 131 (painters previously primed 

the tower in red and were about to paint the tower in green on the date of the accident)). 

Additionally, as described above, the Secretary’s expert witness places JV, and a conductive 

object connected to him, well within 10 feet, or even 2 feet, 4 inches, of the No. 3 power line. It 

 

42 Respondent argues that, instead of this horizontal distance, a straight line distance between a 

point-of-interest (presumably, JV’s location on the tower) and the power line should be used. 

(Resp’t Br. at 6; see also Tr. at 511-513.) Respondent is correct that this straight line distance 

should be used for a precise measurement between any point and the power line. However, as 

described herein, precise measurements are not required here when the evidence places JV well 

within the minimum approach distance in any direction of the No. 3 power line. 
44 

is therefore reasonable to infer that, while painting the edge of the tower, JV, through inadvertent 

movement of his hands covered in conductive paint, breached the 2 feet 4 inch approach distance 

when the No. 3 power line was only 2-3 feet away. 

The Secretary has established non-compliance. 

C. The Secretary has established that Tower Maintenance’s employees had access to 

the violative condition 

The Secretary argues that Tower Maintenance’s employee, JV, had access to the violative 

condition because “the location of his assigned work placed him in a position where inadvertent 

movements could cause his person, or conductive objects connected to his person, to approach 

within the relevant clearance distance[,]” whether it be 10 feet or 2 feet 4 inches. (Sec’y Br. at 

31.) The Secretary claims that the fact that JV was electrocuted establishes access to the 

violative condition. Respondent does not address the Secretary’s claims that JV, or any other 

Tower Maintenance employee, had access to the violative condition. Respondent’s main 

assertion, if any, related to this prong of the Secretary’s burden of proof is that, by failing to 

provide a precise measurement of JV’s distance to the power line and also accounting for the 

possibility that an indeterminate amount of “paint spill” caused the electrocution, the Secretary 

failed to establish that JV had access to the violative condition. (Resp’t Reply Br. at 4.) 

Respondent’s arguments are rejected. The fact that JV died by electrocution is strong 

evidence that he was exposed to the hazard of breaching the minimum approach distance, which 

takes into account inadvertent movement. (Tr. at 593-620; Ex. C-29.) Also, as discussed above, 

all of the power lines were located within 10 feet of the edge of the tower cage. As it is 

undisputed that the painters were expected to paint the tower cage, including the tower cage 

edges, then all of the painters were exposed to the hazard of breaching the minimum approach 

distance in this case. 
45 

The Secretary has established exposure to the violative condition. 

D. Tower Maintenance had knowledge that its employees were approaching within the 

restricted distance to the power lines

The Secretary argues that Respondent had actual and constructive knowledge that its 

employees were breaching the minimum approach distance of the cited standard. (Sec’y Br. at 

31.) Respondent claims that it did not have knowledge of the alleged violations of this citation 

item because “there was no need or even colorable reason for Tower Maintenance’s employees 

to venture onto the arms of the transmission towers.”43 (Resp’t Br. at 11, 17.) 

“The knowledge element of a violation does not require a showing that the employer was 

actually aware that it was in violation of an OSHA standard; rather it is established if the record 

shows that the employer knew or should have known of the conditions constituting a violation.” 

Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d, 26 

F.3d 573 (5th Cir. 1994). To establish whether the employer should have known of the 

conditions constituting a violation, the Secretary must show whether the employer: 

constructively knew of it--that is, the employer could have known with the 

exercise of reasonable diligence. ... Whether an employer was reasonably diligent 

involves a consideration of several factors, including the employer’s obligation to 

have adequate work rules and training programs, to adequately supervise 

employees, to anticipate hazards to which employees may be exposed, and to take 

measures to prevent the occurrence of violations. 

Par, 20 BNA OSHC at 1627 (citations omitted); see also N.Y. State Elec. & Gas Corp. v. Sec'y 

of Labor, 88 F.3d 98, 108 (2d Cir. 1996) (holding that Secretary bears the burden of proof 

regarding the issue of knowledge “even when knowledge charged to an employer is predicated 

 

43 Respondent placed this claim within its discussion of the unpreventable employee misconduct 

defense. (Resp’t Br. at 17.) It is addressed here, as well as below, to the extent that the 

arguments raised relate to knowledge. 
46 

on its alleged inadequate safety policy.”). “The knowledge of a supervisory employee may be 

imputed to his or her employer.” Par, 20 BNA OSHC at 1627. 

The cited standard was violated whenever an unqualified Tower Maintenance employee 

scaled the step bolt ladder up past the No. 3 power line because the No. 3 power line was only 6 

feet 5 and 1⁄2 inches away from the center line of the tower, where the ladder was located. The 

record establishes that Tower Maintenance’s management knew, or could have known with 

reasonable diligence, that its unqualified employees would be breaching the minimum approach 

distance when they worked on the tower at issue. 

The record establishes that Elizabeth Vlahopoulos, Peter Vlahopoulos, and Nikolaos 

Psareas knew that the power lines on the Edison tower were energized during the painting 

project. Elizabeth Vlahopoulos bid on the project using a reduced estimate for the amount of 

paint and labor because the arms of the tower, where the energized power lines were located, 

were not to be painted. (Tr. at 431, 454-455, 1044; Ex. R-1.) As part of its bid package 

submitted to PSE&G, Tower Maintenance provided the HASP that would be followed for the 

project. (Ex. 478, 943-944; C-3.) The HASP stated explicitly: “The Contractor shall perform all 

specified Work on energized transmission lines and equipment. If the structure or line 

configuration prohibits painting safely while lines are energized, the Contractor shall notify the 

Field Representative 48 hours in advance so that an outage may be scheduled.” (Ex. C-3 at 9. 

See Tr. at 952-953.) It is undisputed that no one from Tower Maintenance notified PSE&G that 

the configuration of the Edison tower, where the painters worked on October 25, 2012, 

prohibited Tower Maintenance’s employees from painting it safely. (Tr. at 344, 431, 477.) 

The record also establishes that Tower Maintenance management knew that power line 

No. 3, the closest energized power line to the side of the tower body, was energized. The 
47 

representative of PSE&G at the worksite testified that he had discussed with supervisor Nikolaos 

Psareas the close proximity of power line No. 3, on either the tower at the Edison location or a 

similar tower on a previous day, specifically: 

Q: What was the nature of that discussion? 

A: I suggested to Nick that the guys, once they climbed and got close to that 

circuit, that they go inside the body of the tower and do their painting from inside 

the body, so their backs aren't exposed to that circuit where they could 

accidentally back into it.

(Tr. at 439, 458-59.) Consistent with the representative’s testimony, supervisor Psareas testified 

that he conveyed these instructions, by way of interpretation by foreman Mackeivicz, to the 

painters.44 (Tr. at 737-738.) 

Tower Maintenance does not claim that it did not know that power line No. 3 was 

energized on the day of the accident. Rather, Tower Maintenance asserts that “certain circuits on 

the transmission towers were ‘idle’ circuits” and only “a limited number of the transmission 

towers on the Edison project ha[d] the same ‘lay-out’ of circuits as the tower where the incident 

occurred.” (Resp’t Br. at 13-14.) According to Respondent, these facts show that the Secretary 

“is not entitled to a presumption that, simply because an individual was an employee of Tower 

 

44 The evidence in the record strongly suggests that some information was lost in translation 

between supervisor Psareas and foreman Mackeivicz and the painters. For instance, foreman 

Mackeivicz testified that he thought at the time of the accident that the cables on the Edison 

tower were de-energized. (Tr. at 342-343.) However, Mackeivicz also testified that when the 

painters gathered each morning at the staging location for the Edison project a safety meeting 

was held, during which the instruction was to maintain a safe distance from the power cables: 

“Q: And what was a safety meeting on the Edison project? A: It was to keep a safe distance 

between the cables always during the tie outs. That was it basically. Q: And when you say ‘doing 

tie offs,’ is that the same thing as clipping onto the metal of the tower? A: Yes.” (Tr. at 1008.) 

Confusion by employees regarding the scope of the project and their assignment also is revealed 

in the testimony of the painters regarding whether the arms on the electric transmission towers 

were to be painted. See p. 17-18 supra. 
48 

Maintenance (or even, simply because he worked on the Edison Project) that individual came 

within the minimum approach distance of an energized circuit.” (Resp’t Br. at 13.) 

The evidence in the record specific to the No. 3 power line, and whether JV, or another

unqualified Tower Maintenance employee who scaled the step bolt ladder up past the No. 3 

power line, is relevant to whether the Secretary met his burden of proof. With regard to Tower 

Maintenance’s claim that some of the circuits were “idle” on the day of the accident, the PSE&G 

representative specifically testified that circuit Nos. 4, 5, and 6, not circuit No. 3, happened to be 

de-energized on the day of the accident. (Tr. at 487-489.) He also testified that to Tower 

Maintenance’s knowledge all of the circuits were energized, because that is what PSE&G told 

Tower Maintenance throughout the project. (Tr. at 508-509.) 

As an employer responsible for OSHA regulation compliance, Tower Maintenance is 

responsible for “adequate work rules and training programs, to adequately supervise employees, 

to anticipate hazards to which employees may be exposed, and to take measures to prevent the 

occurrence of violations.” Par, 20 BNA OSHC at 1627. The only way to anticipate the 

minimum approach distance for each power line was to conduct an inspection of the tower to 

determine the voltage of each power line. Id. Only then could Tower Maintenance know the 

minimum approach distance for each power line. This is especially true for energized power line 

No. 3, which was closest to the edge of the tower and 26 kV. It is undisputed that no one from 

Tower Maintenance did these inspections, despite this requirement in its own HASP. (Tr. at 710, 

949, 953; Ex. C-3 at 8-9.) 

The testimony from project director Peter Vlahopoulos and from supervisor and health 

and safety officer Nikolaos Psareas indicates that there may have been confusion with respect to 

conducting the tower inspections. Both seemed to suggest that they relied on PSE&G to tell 
49 

them it was safe to paint the tower. Project director Vlahopoulos testified: “We don't inspect the 

actual tower. That's why the representative for PSE&G is there, to make sure that the tower has 

been inspected by him and reported back to his ‘glass tower,’ as they call it in Newark, which is 

their main office. We're not electricians, we're painters.” (Tr. at 949.) Supervisor Psareas 

testified:

Q: To work on a tower within 10 feet of a power line, you have to be a qualified 

employee, correct? 

A: Yes. 

Q: And to be a qualified employee, you have to be able to calculate the nominal 

voltage, correct? 

A: No. That's what PSE&G rep is there for. 

Q: So to work on a tower, you don't have to know the -- how to calculate the 

nominal voltage? 

A: I mean, no, we have the PSE&G rep there. He will tell us it was good to 

climb. It was, you know, that was the job he gave us. We got the clearance and we 

did what we had to do. 

(Tr. at 743.) Both of these statements are in direct conflict with Respondent’s HASP, which 

provides that Tower Maintenance would perform daily inspections of the worksite for 

compliance with the HASP as well as with “OSHA.” (Ex. C-3 at 4-5, 8.) Even if there was

some confusion regarding this issue, project director Vlahopoulos and supervisor Psareas were 

responsible for safety on the worksite, not PSE&G, and should have inspected the tower to 

determine the voltages and locations of the energized power lines, including power line No. 3, so 

as to determine the minimum approach distances for their painters. 

The record also establishes that Tower Maintenance’s management should have known 

that employees JV and Fonseca Alves were not “qualified” and, therefore, should have 

maintained a 10 feet minimum approach distance from the 26 kV No. 3 power line. With regard 
50 

to JV’s qualifications, record evidence is devoid. Tower Maintenance does not even claim that 

JV was “qualified.” Moreover, supervisor Psareas’ testimony conflicts with foreman 

Mackeivicz’s testimony with regard to who was in charge of checking JV’s qualifications. (Tr. 

at 335-336; 688-689.) Psareas’ testimony also conflicts with the HASP, which states that 

Psareas is responsible for reviewing training records to ensure OSHA compliance. (Ex. C-3 at 

5.) With regard to JV specifically, Psareas “believed” based on conversations with Mackeivicz

that JV came from Morris Painting, but he did not know what training JV had from Morris 

Painting. (Ex. R-50 at 54-56.) Instead, Psareas’ testimony reflects an assumption that JV was 

qualified: 

Q: Did you ever give instruction to the painters with respect to painting of the 

tower? 

A: Did I ever give instructions? Josimar [Mackeivicz] will -- I would talk to 

Josimar and Josimar will be the one telling them exactly. And he'll be the one, 

you know, what they would need to do in the tower. And if I -- if he wasn't, you 

know, nearby or I will be explaining to them, but they all, from painting so many 

towers, because they are all similar, you know, they all know how to do it. It was 

a rhythm they followed. 

(Tr. at 737.) Psareas’ reliance on an assumption that his painters were qualified conflicts with 

his express duty and responsibility under the HASP to ensure that his painters were qualified. 

(Ex. C-3 at 5.) 

With regard to Fonseca Alves, the record establishes that Tower Maintenance should 

have known that he also was not qualified. Even though Fonseca Alves attended an “Electrical 

Arc Flash Safety Training” course with supervisor Psareas, the training was conducted in 

English. (Ex. C-23 at 5; Ex. C-31 at 33-34, 40-42.) When asked how much English does 

Fonseca Alves speak, Psareas testified “a very little bit.” (Tr. at 691-692.) He therefore should 

have known, in accordance with the HASP, to follow up with Fonseca Alves to make sure he 

understood the training. (Ex. C-3 at 5.) Instead, Fonseca Alves testified that he did not fully 
51 

understand portions of the training due to the language barrier, and that Tower Maintenance did 

not check to make sure he understood the training. (Ex. C-31 at 40-42.) As he testified: “They 

didn’t test us, just grab the belt – the bucket and go to work.” (Ex. C-31 at 42.) 

The Secretary has shown that Psareas had constructive knowledge that his painters would 

be using their arms and hands, covered in conductive paint, only 2-3 feet from an energized 

power line on the Edison tower. Par, 20 BNA OSHC at 1626-1627. Psareas knew this type of 

tower, where the No. 3 power line came within 2-3 feet of the edge of the tower body, and he 

testified that he had been on a tower with a similar layout approximately ten times previous to 

the tower at issue. (Tr. at 737.) Psareas also knew that, to work within 10 feet of an energized 

power line, you have to be a qualified employee. (Tr. at 743.) Psareas, however, never 

measured the distance between power line No. 3 and the edge of the tower body nor the distance 

between No. 3 and the center of the tower cage. (Tr. at 710.) Psareas therefore had constructive 

knowledge of the violative conditions imposed on the painters in this case, and this knowledge is 

imputable to Tower Maintenance. Par, 20 BNA OSHC at 1626-1627.

The Secretary has also shown that the painters’ breach of the minimum approach distance 

in this case was reasonably foreseeable and therefore preventable by Tower Maintenance. Pa. 

Power & Light Co. v. OSHRC, 737 F.2d 350, 357–58 (3d Cir. 1984) (holding that the Secretary 

must show that the violative conduct was reasonably foreseeable and thus preventable to 

establish a violation of a general safety standard...“The courts of appeals have consistently held 

that the adequacy of a company's safety program, broadly construed, is the key to determining 

whether an OSHA violation was reasonably foreseeable and preventable.”). Tower 

Maintenance’s own HASP provided, for its employees, that the minimum approach distance to a 

26 kV energized power line was 2 feet 4 inches. (Ex. C-3 at 19 “App’x A”). The table 
52 

referenced in the HASP [Exhibit C-3] contains the same information as OSHA’s Table R-6, 

which is incorporated by reference to the standard cited in the alternative, i.e., the standard that 

would apply if the evidence showed that Tower Maintenance’s employees were “qualified.” 29 

C.F.R. § 1910.269(l)(2). This portion of the HASP reveals that Tower Maintenance expected its 

painters, without reference to whether they were “qualified,” to breach the 10 foot minimum 

approach distance of the cited standard.

Indeed, the painters on the Edison tower breached the 10 foot minimum approach 

distance to energized power line No. 3 as they passed it while scaling the ladder, or as they 

painted the tower body right next to it. The tower at issue here was primed just two days prior to 

the incident and it is undisputed that the employees scaled the ladder to get to their painting 

positions. (Tr. at 1037-1038.) It is also undisputed that Tower Maintenance expected the 

painters to paint the tower body, from which the No. 3 power line was only 2-3 feet. It is also 

undisputed that the paint, which covered the painters and their painting mitts, was conductive. It 

was reasonably foreseeable and preventable that the “unqualified” painters on the Edison tower 

breached the 10 foot minimum approach distance to the No. 3 power line. 

The Secretary has established knowledge for this citation item.

E. Unpreventable Employee Misconduct Defense

Respondent claims that it “adduced ample evidence that the painters were instructed to 

maintain a safe distance from the energized circuits, and to perform their painting from within 

‘the box’ of the transmission towers.” (Resp’t Br. at 17.) Respondent therefore claims that 

“there was no need or even colorable reason [for JV] to venture onto the arms of the transmission 

towers.” (Resp’t Br. at 17.) This claim is construed as an unpreventable employee misconduct 

(UEM) defense.
53 

After the Secretary has set forth a prima facie case, the employer may set forth the UEM 

defense. N. Y. State Elec. & Gas Corp., 88 F.3d at 106. For this defense, the employer has the 

burden to establish that: (1) the employer has established work rules designed to prevent the 

violation; (2) it has adequately communicated those rules to its employees; (3) it has taken steps 

to discover violations; and (4) it has effectively enforced the rules when violations have been 

discovered. Precast Servs. Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995); see also Pa. 

Power & Light Co. v. OSHRC, 737 F.2d at 357 (holding that “[i]n cases where the Secretary 

proves that a company supervisor had knowledge of, or participated in, conduct violating the 

Act, we do not quarrel with the logic of requiring the company to come forward with some 

evidence that it has undertaken reasonable safety precautions.”).

Respondent claims that it had a rule that no employee was to paint the arms of a tower. 

Respondent also had a work rule in Appendix A of its HASP that no employee would approach 

an energized 26 kV power line within 2 feet 4 inches. (Ex. C-3 at 19 “App’x A”.) With respect 

to the No. 3 power line, which was 2-3 feet from the edge of the tower body, I find that neither of 

these rules was adequate to prevent a violation. The cited standard required that the painters stay 

10 feet from the power line, not “2-3 feet” or “2 feet 4 inches.” I also find that neither of these 

rules was communicated to the painters adequately. The record shows that the HASP was never 

provided to the painters – even foreman Mackeivicz had not seen it. The record also shows 

evidence of instructions being lost in translation between supervisor Psareas, who speaks no 

Portuguese, and the painters.45 Additionally, there is no evidence in the record of how and 

whether Respondent enforced these rules. Finally, supervisor Psareas left the worksite before the 

painters ascended the tower and was making a telephone call a mile away when the accident 

 

45 See p. 43 n.44 supra. 
54 

occurred. In this instance, supervisor Psareas did not take steps to discover a violation of its 

work rule on the day of the accident, as he was not even on the worksite when the accident 

occurred. Respondent has failed to establish the UEM defense for this citation item.

Citation 1, Item 1 is affirmed.

F. Characterization

The Secretary alleged a serious violation of the cited standard. A violation is “serious” if 

there was a substantial probability that death or serious physical harm could have resulted from 

the violative condition. 29 U.S.C. § 666(k). The hazards associated with a violation of the cited 

standard, or the standard cited in the alternative, include amputations, burns, or as shown in this 

case, death by electrocution. (Tr. at 618-619.) This citation item is properly characterized as 

serious. 

II. Serious, Willful, Repeat Citation 2, Item 1: Alleged Fall Protection Violation 

The Secretary alleges a violation of 29 C.F.R. §§ 1910.269(g)(2)(iii) and (g)(2)(v). 

(Amended Complaint at ¶ VIII.) 46 Section 1910.269(g)(2)(iii) “Fall Protection,” provides that 

 

46 The Secretary cited in the alternative violations of 29 C.F.R. § 1910.132(a) and (e), which 

state in pertinent part: “protective equipment ... shall be provided, used and maintained in a 

sanitary and reliable condition wherever it is necessary by reason of hazards ... encountered in a 

manner capable of causing injury or impairment[.] Defective or damaged personal protective 

equipment shall not be used.” 29 C.F.R. §§ 1910.132(a), (e); Amended Complaint at ¶ VIII.

The Secretary claimed the following:

(a) Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels. The employer 

failed to ensure that employees wore appropriate fall protection equipment and 

failed to remove defective equipment from service. Employees performing work 

from elevated locations on an electric transmission tower were not protected from 

falls through the use of a functional fall protection system on / or about 

10/25/2012. Employees were using lanyards with defective snap hooks which 

were covered in paint and incapable of closing securely. Employees were also 

required to perform work in elevated positions where their personal fall arrest 

systems were not capable of providing fall protection. 
55 

“Body belts, safety straps, lanyards, lifelines, and body harnesses shall be inspected before use 

each day to determine that the equipment is in safe working condition. Defective equipment may 

not be used.” Section 1910.269(g)(2)(v) provides in relevant part: “Fall arrest equipment ... 

shall be used by employees working at elevated locations more than 4 feet (1.2 m) above the 

ground on ... towers[.]”47 The Secretary claims the following:

(a) Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels. The employer 

failed to ensure that employees wore appropriate fall protection equipment and 

failed to remove defective equipment from service. Employees performing work 

on an electric transmission tower from elevated locations more than 4 feet above 

the ground level were not protected from falls through the use of a functional fall 

protection system on or about 10/25/2012. Employees were using lanyards with 

defective snap hooks which were covered in paint and incapable of closing 

securely. Employees were also required to perform work in elevated positions 

where their personal fall arrest systems were not capable of providing fall 

protection. 

Amended Complaint ¶ VIII.

A. The Secretary has established that the cited standards apply

As discussed above, § 1910.269, entitled “Electric power generation, transmission, and 

distribution,” applies to “the operation and maintenance of electric power generation, control,

transformation, transmission, and distribution lines and equipment.” 29 C.F.R. 

§ 1910.269(a)(1)(i). The parties stipulated that Tower Maintenance “was engaged in repainting 

an electric transmission tower” on the day of the accident. (Ex. J-1 at ¶ 11.) The representative 

for PSE&G testified that PSE&G considers painting as maintenance for its towers because, “it 

extends the life of the structure.” (Tr. at 469.) See Pub. Utils. Maint., Inc., 417 F. App’x 58.

48 

 

Amended Complaint at ¶ VIII. 

47 Section 1910.269(g)(2)(v), Note 2, states in relevant part: “[U]nqualified employees ... are 

required to use fall protection any time they are more than 4 feet (1.2 m) above the ground.”

48 See p. 4 n.5 and accompanying text supra. 
56 

The record clearly discloses that Tower Maintenance painters were working at heights 

substantially greater than 4 feet above the ground on a transmission tower. The cited standards 

under § 1910.269 apply.49

B. The Secretary has established that Tower Maintenance violated the cited standards 

All of the painters at the hearing testified that they had frequent concerns about their

PFAS devices and that they brought their concerns to supervisor Psareas and foreman 

Mackeivicz. (Tr. at 279-280; Ex. C-30 at 58-60; Ex. C-31 at 79-81.) Supervisor Psareas 

confirmed that the employees would bring their equipment to him in the mornings and that he

knew the paint would cause the harness clips to jam, rendering the PFAS defective. (Tr. at 701-

702.) But then he testified that he would “always replace them.” (Tr. at 701-702.) This 

testimony is in direct conflict with the testimony of all the painters who testified. I credit the 

painters’ testimony for the following reasons. 

Foreman Mackeivicz testified that each painter was responsible, at the end of the day, to 

clean his PFAS device and to put it away. (Tr. at 355.) Project director Peter Vlahopoulos 

admitted that dry paint on a clip rendered the clip defective. (Tr. at 958.) The HASP even 

required Tower Maintenance (Vlahopoulos and Psareas) to ensure that personal protective 

equipment “is maintained in a sanitary and reliable condition.” (Ex. C-3 at 7.) All of the 

supervisors on the worksite therefore knew of the risk of a PFAS device being rendered defective 

during the project. However, none of the supervisors claimed that they ensured that any of the 

PFAS devices worked – not at the beginning of the workday and, notably, not during the 

 

49 Just as for Citation 1, Item 1, Respondent claims that the Secretary has failed to carry his 

burden to show the applicability of the cited standards for this citation item because the Secretary 

also cited in the alternative. (Resp’t Br. at 10.) Respondent, however, has not expounded on this 

argument with respect to this citation item. Indeed, all of the facts supporting the applicability of 

the cited standard for this citation item are undisputed. Respondent’s claim in this regard is 

rejected. 
57 

workday. In fact, the only mention in the record when a painter received a harness was in the 

morning at the staging area. While the painters were on the tower or in between towers, 

sometimes the painters were left unsupervised, as here, when supervisor Psareas left the worksite 

to make a telephone call. I therefore credit the painters’ testimony regarding their defective 

equipment, and find that the defective harnesses were not replaced and that the painters were 

working with defective personal protective equipment in violation of § 1910.269(g)(2)(iii). 

All of the painters, and the supervisors, including Peter Vlahopoulos, testified that 

accepted uses on the Tower Maintenance worksite of the PFAS device included: (1) wrapping 

the lanyard around a cross-bracing and attaching the clip back onto the lanyard itself, and (2)

clipping onto step bolts. (Tr. at 272-274, 346-347, 703-704, 958; Exs. C-30 at 87-90, C-31 at 75-

78, 109-111.) Use of the PFAS device in this manner is non-compliant with OSHA 

regulations.50 As the OSHA CO noted, wrapping the lanyard and clipping back onto the lanyard 

itself subjects the lanyard to abrasion and tear, and undermines the weight capacity of the PFAS

device. (Tr. at 181-182.) The lanyard was therefore not a secure anchor point. (Sec’y Br. at 40.) 

Step bolts also are not secure anchor points because the clip can slide off the end of the step bolt. 

(Tr. at 163-164.) Because Tower Maintenance permitted its painters to use PFAS devices in 

manners that were not compliant with OSHA regulations, it follows that Tower Maintenance did 

not ensure that the painters used fall arrest equipment on this worksite, in violation of 

§ 1910.269(g)(2)(v). Furthermore, some of the painters testified that, at certain points on a 

tower, it was impossible to use the PFAS device. In those areas, the painters did not use the 

PFAS device at all, in direct violation of the § 1910.269(g)(2)(v). (Ex. C-30 at 88-90; Ex. C-31 

 

50 The PFAS device must include a secure anchorage point and be protected from damage and 

abrasion during use. 29 C.F.R. § 1910.269(g)(2)(i) (requiring conformance with subpart M of 

part 1926); 29 C.F.R. § 1926.502(d)(11); see also Tr. at 181-182 (CO testifying about 

Respondent’s incorrect usage of the PFAS.) 
58 

at 110-11.) Finally, the fact that two employees fell is strong evidence that neither was actually 

using a PFAS device, even though they were wearing them. The Secretary has established noncompliance with the cited standards. 

C. The Secretary has established that Tower Maintenance’s employees had access to 

the violative condition 

The hazard associated with the violations of the cited standards is falling from a height of 

4 or more feet. It is undisputed that all of the employees on the worksite worked at heights 

greater than 4 feet. It has been found that the painters in this case worked with defective PFAS

devices, and used PFAS devices improperly. The Secretary has established exposure. 

D. Tower Maintenance knew that its employees were using defective PFAS devices and 

that the employees were not using their PFAS devices properly

The Secretary has established that Respondent had both actual and constructive 

knowledge of the violative condition. It is undisputed that the paint in this project caused the 

clips to jam, and that the painters would inform supervisor Psareas and foreman Mackeivicz of 

their defective equipment. It is also undisputed that the remedy was to clean the PFAS device, 

not to replace the PFAS device. While there is evidence in the record that the painters frequently 

had issues with the PFAS devices working properly, there is no evidence in the record of 

supervisor Psareas or foreman Mackeivicz ensuring that the each PFAS device worked properly. 

Respondent’s HASP required that the PFAS device be kept in a “sanitary and reliable condition” 

and, notably, that the painters “would be supervised continually by the HSO [health and safety 

officer Psareas] to ensure compliance with [Respondent’s fall protection] policy.” (Ex. C-3 at 7, 

11.) Supervisor Psareas left the worksite before the painters ascended the tower, and did not 

continually monitor their usage of fall protection on the day of the accident. This evidence 

constitutes constructive knowledge of the violative condition. Par, 20 BNA OSHC at 1626-1627 

(holding that constructive knowledge is based on showing of lack of reasonable diligence, which 
59 

“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 to 

which employees may be exposed, and to take measures to prevent the occurrence of 

violations.”).

Supervisor Psareas and foreman Mackeivicz also testified that they were aware that

painters wrapped their PFAS device lanyard around the tower beam and clipped it back onto 

itself, that the painters used the clips on step bolts, and, most importantly in the case of 

Mackeivicz, that he knew these methods of using the PFAS device were improper. (Tr. at 346-

347, 703-704.) Both Psareas and Mackeivicz therefore had actual knowledge of the violative 

condition. Project manager Peter Vlahopoulos also knew that the painters used the step bolts to 

tie off. (Tr. at 958.) Peter Vlahopoulos, Psareas and Mackeivicz are supervisors for Tower 

Maintenance. These supervisors knew that their painters worked at great heights with potentially 

defective PFAS devices and they knew of the improper ways the painters used the PFAS devices. 

These supervisors therefore had actual knowledge of the violative condition underlying this 

citation item. Peterson Bros. Steel Erection Co., 16 BNA OSHC at 1199. 

Furthermore, while supervisor Psareas was not on the worksite at the time of the accident, 

and therefore did not actually see the state and use of the fall protection that the painters used on 

the Edison tower, I find that the accident was foreseeable based on the lax manner in which 

Tower Maintenance implemented its safety program. Pa. Power & Light Co. v. OSHRC, 737 

F.2d at 358 (“The courts of appeals have consistently held that the adequacy of a company's 

safety program, broadly construed, is the key to determining whether an OSHA violation was 

reasonably foreseeable and preventable.”). The record is replete with evidence establishing how

these supervisors did not enforce Tower Maintenance’s own safety rules set forth in the HASP – 
60 

they did not ensure during the workday that the PFAS devices worked properly and they 

knowingly allowed the painters to use their PFAS devices improperly. This lax safety rule

enforcement supports a finding that the painters’ violation of the cited standard at the Edison 

worksite was reasonably foreseeable and preventable. 

Finally, Respondent’s supervisors’ actual and constructive knowledge is imputed to 

Tower Maintenance. Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93-373, 1996), aff’d, 

122 F.3d 437 (7th Cir. 1997) (holding that supervisory knowledge is imputable to the employer). 

Knowledge for this citation item has been established. 

Citation 2, Item 1 is affirmed.

E. Characterization

1. Serious

The Secretary has alleged a serious violation of the cited standard. A violation is 

“serious” if there was a substantial probability that death or serious physical harm could have 

resulted from the violative condition. 29 U.S.C. § 666(k). The hazard associated with violating 

this standard includes serious bodily harm or death, as evidenced by RS’ serious injuries. This 

violation is properly characterized as serious.

2. Willful

“The hallmark of a willful violation is the employer's state of mind at the time of the 

violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or ... 

plain indifference to employee safety.)’ ” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 

(No. 90-2775, 2000) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001). 

[I]t is not enough for the Secretary to show that an employer was aware of 

conduct or conditions constituting the alleged violation; such evidence is already 

necessary to establish any violation .... A willful violation is differentiated by 
61 

heightened awareness of the illegality of the conduct or conditions and by a state 

of mind of conscious disregard or plain indifference .... 

Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993); see also Bianchi Trison 

Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) (A willful violation of the OSH Act “constitutes 

an act done voluntarily with either an intentional disregard of, or plain indifference to, the OSH 

Act's requirements.”)(internal quotes omitted). 

There must be evidence that an employer knew of an applicable standard or 

provision prohibiting the conduct or condition and consciously disregarded the 

standard. Without such evidence of familiarity with the standard's terms, there 

must be evidence of such reckless disregard for employee safety or the 

requirements of the law generally that one can infer that if the employer had 

known of the standard or provision, the employer would not have cared that the 

conduct or conditions violated it. 

Williams Enters. Inc., 13 BNA OSHC 1249, 1257 (No. 85-355, 1987). “[A]n employer's prior 

history of violations, its awareness of the requirements of the standards, and its knowledge of the 

existence of violative conditions are all relevant considerations in determining whether a 

violation is willful in nature.” MJP Constr. Co., 19 BNA OSHC at 1648. The state of mind of a 

supervisory employee ... may be imputed to the employer for purposes of finding that the 

violation was willful.” Branham Sign Co., 18 BNA OSHC 2132, 2134 (No. 98-752, 2000). 

Heightened Awareness 

The record establishes that Respondent had a heightened awareness of the requirements 

of the cited standards and the illegality of its conduct and conditions of its worksite. In 2010, at 

a worksite in Macungie, Pennsylvania, Tower Maintenance had a previous fatality related to a 

fall, and was cited by OSHA in that instance. Peter Vlahopoulos was the jobsite project manager 

for Tower Maintenance at the Macungie worksite. The fatally injured employee fell from a pole 

tower. At the time of the fatal accident, the employee had been tied off on a “step bolt.” (Tr. at 

958-962.) The citation, which alleged violations of OSHA’s construction fall protection 
62 

standards, was settled, and the violations of the cited standards were affirmed.

51 (Ex. J-1 at ¶¶ 4-

5; Exs. C-25-27.) As a result of this citation, Elizabeth Vlahopoulos was aware of the OSHA 

requirement that her employees “absolutely” must use fall protection at elevated heights, that 

employers must inspect an employee’s PFAS device, and that defective equipment should not be 

used, and that the previous violation was “on [her] OSHA log and on [her] record.” (Tr. at 882, 

917-918.) As a result of this fatal accident, Respondent knew that employees must tie-off on 

secure anchor points when working at heights. Respondent knew that “step bolts’ were an 

inadequate anchor point. (Tr. 958-962, 988-991.) 

Similarly, Peter Vlahopoulos participated in previous OSHA discussions relating to 

violations of fall protection standards at a worksite for a previous company.52 (Tr. 980-985; Exs. 

 

51 In the settlement agreement and Commission final order violations of the following standards

were affirmed: 

(1) 29 C.F.R. § 1926.501(b)(1), which states in pertinent part: “Each employee on a 

walking/working surface (horizontal and vertical surface) with an unprotected side or 

edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling 

by the use of guardrail systems, safety net systems, or personal fall arrest systems”; 

(2) 29 C.F.R. § 1926.502(d)(21), which states in pertinent part: “Personal fall arrest systems 

shall be inspected prior to each use for wear, damage and other deterioration, and 

defective components shall be removed from service.”; 

(3) 29 C.F.R. § 1926.503(b)(1), which states in pertinent part: “The employer shall verify 

compliance with paragraph (a) of this section [Fall Protection “Training Program”] by 

preparing a written certification record.” See note 56 infra for full text of standard. 

(Ex. J-1 at ¶¶ 4-6; Exs. C-25, 26, 27.) 

52 The standards violated in that case were the following:

1) [Citation 1, Item 9] 29 C.F.R. § 1926.501(b)(15), which states in pertinent part: “each 

employee on a walking/working surface 6 feet (1.8 m) or more above lower levels shall 

be protected from falling by a guardrail system, safety net system, or personal fall arrest 

system.”

2) [Citation 1, Item 10] 29 C.F.R. § 1926.502(d)(21), which states in pertinent part: 

“Personal fall arrest systems shall be inspected prior to each use for wear, damage and 

other deterioration, and defective components shall be removed from service.” 

(Exs. C-46 at 1-2; C-47 at 4, 16-17.) 
63 

C-49 at 9, 11-13; C-50). His knowledge of the requirements of fall protection travelled with him 

when he began working for Respondent. MJP Constr. Co., Inc., 19 BNA OSHC at 1648 

(holding that supervisors can be “chargeable with knowledge of the requirements of the standard 

based on their prior work experience, wherever that experience originates.”).

Although supervisor Psareas did not know of Respondent’s previous OSHA history (Ex. 

R-50 at 44), both he and foreman Mackeivicz were trained in fall protection earlier that year. 

(Ex. C-22, p. 5-7; R-11; App’x B.) Both were aware of the methods the Tower Maintenance 

painters used with their PFAS devices at the Edison worksite. Mackeivicz testified that he knew 

that the methods that the painters used with their PFAS devices were improper. (Tr. at 346-347. 

See also Tr. 703-704.) 

The above evidence supports a finding that Respondent had a heightened awareness of 

the fall protection requirements, the violative conditions, and the illegality of its conduct on 

Edison project worksite. MJP Constr. Co., 19 BNA OSHC at 1648 (employer’s prior history of 

violations, its awareness of the requirements of the standards, and its knowledge of the existence 

of violative conditions are relevant to finding willfulness); Branham Sign Co., 18 BNA OSHC at 

2134 (imputing supervisor’s knowledge for willfulness). 

Plain Indifference 

The evidence in the record establishes that Respondent was plainly indifferent to the 

safety of its painters with regard to fall protection. The record establishes that Respondent 

systematically sent painters, including JV, up towers without first taking a fall protection class or 

even having any training certificates on file, and less than two years after a similar fall fatality in 
64 

Macungie.53 Although each painter was provided with a PFAS device, the record shows that all 

supervisors were aware that the PFAS devices were rendered ineffective frequently and yet no 

supervisor ensured that the painters’ PFAS devices worked throughout the day. Additionally, all 

of the supervisors knowingly disregarded the improper methods by which the painters used their 

PFAS devices, including anchoring their PFAS devices to step bolts. Respondent’s HASP 

required supervisor / health and safety officer Psareas to continually monitor the painters and 

their use of fall protection, but Psareas left the worksite on the day of the accident. No 

supervisor was on the worksite to monitor compliance with fall protection on the day of the 

accident even though Respondent knew that their painters would be working at great heights 

with potentially ineffective PFAS devices and using them improperly. 

Under these circumstances, the Secretary has established that Respondent was plainly 

indifferent to its painters with regard to fall protection. Elliot Constr. Corp., 23 BNA OSHC 

2110, 2116-17 (No. 07-1578, 2012) (finding plain indifference when supervisor knew from prior 

experience and the day of the accident that carbon monoxide would be present and yet failed to 

monitor for it); Adrian Constr. Co., 7 BNA OSHC 1172, 1175 (No. 15414, 1979) (“A violation 

is willful if the evidence shows that the employer ignored an obvious and grave danger . . . ”); 

Branham Sign Co., 18 BNA OSHC at 2134 (imputing supervisor’s knowledge for willfulness). 

This citation item is properly characterized as willful.

3. Repeat

“A violation is repeated under section 17(a) of the Act if, at the time of the alleged 

repeated violation, there was a Commission final order against the same employer for a 

 

53 As discussed above, Respondent had no training certificates on file for the following painters 

engaged in tower painting work, on the PSE&G transmission tower painting project, on October 

25, 2012: Marcelo Leiroz, Ederson Trizotte, Osias Figugiredo, Domingos Da Silva, Euflates 

Passos, and JV. (Ex. J-1 at ¶¶ 17 through 27; App’x B.) See p. 22 supra. 
65 

substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979); 

see also Reich v. D.M. Sabia Co., 90 F.3d 854, 856 (3d Cir. 1996) (adopting Potlatch test). 

“[T]he principal factor in determining whether a violation is repeated is whether the two 

violations resulted in substantially similar hazards.” Amerisig Se., Inc., 17 BNA OSHC 1659, 

1661 (No. 93-1429, 1996). “ ‘[S]ubstantially similar’ must be defined sufficiently narrowly that 

the citation for the first violation placed the employer on notice of the need to take steps to 

prevent the second violation.” Caterpillar, Inc. v. Herman, 154 F.3d 400, 403 (7th Cir. 1998). 

The Secretary claims that the predicate for the repeat characterization of Citation 2, Item 

1, alleging violations of 29 C.F.R. §§ 1910.269(g)(2)(iii) and (g)(2)(v), is Tower Maintenance’s 

previous violation of OSHA’s construction fall protection standards at 29 C.F.R. 

§§ 1926.501(b)(1) and 1926.502(d)(21).

54 (Amended Complaint at VI, VIII; Sec’y Br. at 60.) 

Tower Maintenance’s violation of these standards, in connection with the fatal accident in 

Macungie, Pennsylvania, became a final order of the Commission on July 15, 2011. (Exs. J-1 at 

¶¶ 4, 5; C-27.) However, § 1926.502(d)(21) was not included in the alleged violation description 

of Citation 2, Item 1 in the Amended Complaint and, even though the parties stipulated to Tower 

Maintenance’s prior violation of this standard, the Secretary never amended the Complaint to 

add 29 C.F.R § 1926.502(d)(21) as a predicate standard for the repeat characterization of 

 

54 I find the correct predicate citation for the repeat characterization alleged in Citation 2, Item 1 

to be Citation 1, Item 2, in OSHA Inspection No. 314720780, stating a violation of 

§ 1926.501(b)(1), as set forth on Citation 2, Item 1 as issued in the instant case on April 8, 2013, 

and attached to the July 14, 2014 Amended Complaint. (Exs. C-25, C-27). 

I find the reference in the Amended Complaint, at paragraph VI, that the predicate citation for 

the repeat characterization alleged in Citation 2, Item 1 to be Citation 1, Item 1 in OSHA 

Inspection No. 314720780, to be an inadvertent typographical error. Citation 1, Item 1, in 

OSHA Inspection No. 314720780 was vacated in its entirety in the formal settlement agreement. 

(Ex. C-27.) 
66 

Citation 2, Item 1 in the instant case. This repeat characterization analysis is therefore limited to 

29 C.F.R. §§ 1926.501(b)(1) as a predicate for this citation item.55

Respondent claims that this citation item cannot be characterized as repeat based on the 

previous violations because the predicate standard was “separate and distinct” and has 

“substantive differences” from the cited standards here. (Resp’t Br. at 15-16.) Respondent 

further claims that the previous final order was not a violation of 29 C.F.R. § 1926.501(b)(1) “in 

any event” because it was reduced from a serious to an other-than-serious violation in the 

settlement agreement. (Resp’t Br. at 16.) Respondent’s claims are rejected.

First, the settlement agreement establishes that Tower Maintenance violated 29 C.F.R. 

§ 1926.501(b)(1) as a serious violation.

56 (Exs. C-25, C-27.) Second, the test for determining 

substantial similarity for purposes of repeat characterization is comparing the hazard, not the 

standards. Amerisig Se., Inc., 17 BNA OSHC at 1661. Both Tower Maintenance worksites – 

Macungie and Edison – revealed the noncompliant use by employees of step-bolts as anchor 

points when working at heights, which resulted in a fall hazard. 

In Macungie, Tower Maintenance violated standard 1926.501(b)(1) because one of its 

employees used a step bolt as an anchor point for his PFAS, which caused him to fall to his 

death. (Tr. 958-62; Ex. J-1 ¶ 3 (“On October 10, 2010 a Tower Maintenance Corporation 

employee sustained fatal injuries after falling from a transmission tower at a project located in 

 

55 29 C.F.R. § 1926.501(b)(1), states in pertinent part: “Each employee on a walking/working 

surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) 

or more above a lower level shall be protected from falling by the use of guardrail systems, 

safety net systems, or personal fall arrest systems.”

56 Respondent incorrectly asserts that its violation of § 1926.501(b)(1) was “reduced to a lesser 

violation” in the settlement agreement. (Resp’t Br. at 16.) Tower Maintenance’s violation of 

§ 1926.502(d)(21), within Citation 1, Item 3 of OSHA Inspection number 314720780, was 

“reclassified from ‘serious’ to ‘other than serious[.]’ ” (Exs. C-25, C-27 at 1.) 
67 

Macungie, PA.”).) The alleged violation description for the Macungie job site citation states the 

following: 

Throughout Work Area – Even though a proper fall arrest system was provided to 

the employee, the employer did not ensure that the subject employee that fell was 

protected from falls through the use of fall protection systems on or about 10/10/10. 

(Ex. C-27 at 1.) Based on this language, Tower Maintenance was on notice to ensure that its 

employees were wearing and using fall protection systems, and specifically not tying off on 

inadequate anchor points. Caterpillar, Inc. v. Herman, 154 F.3d at 403. 

However, as noted above, all of the painters, and the supervisors, including Peter 

Vlahopoulos, testified that accepted uses on the Tower Maintenance worksite of the PFAS 

device included: (1) wrapping the lanyard around a cross-bracing and attaching the clip back 

onto the lanyard itself, and (2) clipping onto step bolts. (Tr. at 272-74, 346-47, 703-04, 958; Exs. 

C-30 at 87-90; C-31 at 75-78, 109-111.) Supervisor Psareas and foreman Mackeivicz testified 

that they were aware that painters wrapped their PFAS device lanyard around the tower beam 

and clipped it back onto itself, that the painters used the clips on step bolts, and, most 

importantly in the case of Mackeivicz, that he knew that these methods of using the PFAS device 

were improper. (Tr. at 346-347, 703-704.) 

At both worksites, Macungie and Edison, Tower Maintenance violated OSHA standards 

for fall protection and Tower Maintenance employees fell and either died or sustained serious 

injuries due to Respondent’s failure to comply with the fall protection standards. The hazard for 

this citation item is substantially similar to the hazard for the predicate citation item. 

This citation item is properly classified as repeat.

III. Serious, Repeat Citation 2, Item 2: Alleged Training Violation
68 

As discussed above, the standards in this citation item alleged to have been violated are 

affected by the finding that Respondent’s painters were not “qualified.” Regarding Citation 2, 

Item 2, all of the standards cited are therefore adjudicated in this section. 

The Secretary alleges that Tower Maintenance violated 29 C.F.R. §§ 1910.269(a)(2)(i)

and (a)(2)(ii). (Amended Complaint at ¶ IX.) Section 1910.269(a)(2)(i) provides in relevant 

part: 

Employees shall be trained in and familiar with the safety-related work practices, 

safety procedures, and other safety requirements in this section that pertain to 

their respective job assignments. Employees shall also be trained in and familiar 

with any other safety practices . . . that are not specifically addressed by this 

section but that are related to their work and are necessary for their safety.

29 C.F.R. § 1910.269(a)(2)(i). Section 1910.269(a)(2)(ii) provides in relevant part: 

Qualified employees shall also be trained and competent in: (A) The skills and 

techniques necessary to distinguish exposed live parts from other parts of electric 

equipment, (B) The skills and techniques necessary to determine the nominal 

voltage of exposed live parts, (C) The minimum approach distances specified in 

this section corresponding to the voltages to which the qualified employee will be 

exposed, and (D) The proper use of the special precautionary techniques, personal 

protective equipment, insulating and shielding materials, and insulated tools for 

working on or near exposed energized parts of electric equipment. 

29 C.F.R. § 1910.269(a)(2)(ii). The Secretary claims the following:

(a) Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV 

at the lower level and 138 kV from the middle to the upper levels: on or about 

10/25/2012, the employer did not ensure that employees were trained in the safetyrelated work practices, procedures, and requirements associated with painting 

energized transmission towers. Employees that were required to use personal fall 

arrest systems were not trained in the proper use and operation of personal fall 

arrest systems, and were not trained in the correct procedures for maintaining and 

inspecting the personal fall arrest systems. The employer also failed to ensure the 

effectiveness of training that was provided by previous employers prior to allowing 

employees to perform work on transmission towers. 

(b) Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV 

at the lower level and 138 kV from the middle to the upper levels: on or about 

10/25/2012, the employer did not ensure that employees were trained in and 
69 

familiar with the safety-related work practices, safety procedures, and other safety 

requirements that pertain to the work of re-painting energized electric transmission 

towers. Employees were not trained in or informed about the safe use of 

conductive tools and objects, including primer and paint. 

(c) Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV 

at the lower level and 138 kV from the middle to the upper levels: on or about 

10/25/2012, the employer did not ensure that employees who were required to 

perform work limited to qualified employees were trained and competent in the 

skills and techniques necessary to determine the nominal voltage of exposed live 

parts and the appropriate minimum approach distances. 

Amended Complaint at ¶ IX. 

The Secretary also alleges violations of 29 C.F.R. §§ 1910.132(f) and 1910.332(b)(1) and 

(2). (Amended Complaint at ¶ IX.) Section 1910.132(f) provides in relevant part: 

The employer shall provide training to each employee who is required by this 

section to use PPE [personal protective equipment]. 

29 C.F.R. § 1910.132(f)(1). Section 1910.332(b)(1) provides in relevant part: 

Content of training – (1) Practices addressed in this standard. Employees shall 

be trained in and familiar with the safety-related work practices required by 

§§ 1910.331 through 1910.335 that pertain to their respective job assignments. 

29 C.F.R. § 1910.332(b)(1). Section 1910.332(b)(2) provides in relevant part: 

Additional requirements for unqualified persons. Employees who are covered by 

paragraph (a) of this section but who are not qualified persons shall also be 

trained in and familiar with any electrically related safety practices not 

specifically addressed by §§ 1910.331 through 1910.335 but which are necessary 

for their safety. 

29 C.F.R. § 1910.332(b)(2). The Secretary claimed the following: 

(a) Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV 

at the lower level and 138 kV from the middle to the upper levels: on or about 

10/25/2012, the employer did not ensure that employees were trained in and 

familiar with the safety-related work practices and electrically related safety 

practices associated with painting energized electric transmission towers. 

Employees were not trained in or informed about the safe use of conductive tools 

and objects, including primer and paint. Employees were required to perform 

work near energized overhead power lines and were not informed about the 
70 

amount of voltage passing through the power lines and were not trained to 

determine the appropriate distance to maintain from the energized power lines.

(b) Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV 

at the lower level and 138 kV from the middle to the upper levels: on or about 

10/25/2012, the employer did not ensure that each employee was trained in the 

safety-related work practices associated with repainting energized electric 

transmission towers. Employees who were required to use personal fall arrest 

systems were not trained in the proper use, care, and operation of the personal fall 

arrest systems, and were not trained in the correct procedures for caring for and 

maintaining their personal fall arrest systems. The employer also failed to ensure 

the effectiveness of training that was provided by previous employers prior to 

allowing employees to perform work on transmission towers. 

Amended Complaint at ¶ IX. 

A. The Secretary has established that the cited standards apply 

The Secretary alleges that Tower Maintenance failed to train its employees in the areas of 

fall protection and electrical safety. Both of these areas fall under the broadly written language 

of all of the cited standards. Respondent sent unqualified employees, and in some instances 

untrained employees, to work on the Edison tower on this section 1910.269 project. To the 

extent that the section 1910.269 training standards cited here regulate the training of persons, 

regardless of whether they were qualified or unqualified, I find that section 1910.269 applies to 

the working conditions in this case.57 S. Pan Servs. Co., 25 BNA OSHC at 1085. 

However, as the Secretary argues, §§ 1910.332(b)(1) and (b)(2) cited in the alternative 

also apply in this case due to the finding that the painters on the Edison project were 

“unqualified” and the express requirement in §1910.269(a)(1)(iii) that “all other applicable 

standards contained in this part 1910” also apply. (Sec’y Br. at 61). See also Morrison-Knudsen 

 

57 Because of this, § 1910.132(f) does not apply in this case because I find that 

§ 1910.269(a)(2)(i) covers the requirement of fall protection training as it is applies to 

“unqualified” persons as well as “qualified.” All of the painters had to work at great heights 

while painting the Edison tower; therefore they were subjected to a fall hazard in their respective 

job assignments. 
71 

Co. / Yonkers Contracting Co., 16 BNA OSHC 1105, 1108 (No. 88-572, 1993)(in regulatory 

context, explaining that Commission construes “each part or section . . . in connection with every 

other part or section so as to produce a harmonious whole”) (internal citations omitted). Under 

these circumstances, §§ 1910.332(b)(1) and (b)(2) apply and cover the training requirement gap 

that is formed due to the training standards in § 1910.269 that do not cover “unqualified” 

persons. 

B. The Secretary has established that Respondent violated 29 C.F.R. 

§§ 1910.269(a)(2)(i) and (a)(2)(ii) 

1. Section 1910.269(a)(2)(i) 

Section 1910.269(a)(2)(i) requires Tower Maintenance painters to be trained in and 

familiar with “safety-related work practices.” The Secretary claims that the use and maintenance 

of the PFAS device was such a safety-related work practice on the Tower Maintenance worksite

and that Tower Maintenance failed to train its employees in this practice. (Sec’y Br. at 63-68.) 

Respondent claims that the Secretary failed to establish that its employees were not trained. 

(Resp’t Br. at 13-15; Resp’t Reply Br. at 4-5.) 

As discussed above regarding Citation 1, Item 1, the Secretary has established that JV as 

well as several other Respondent painters was not trained in the hazards of the work they 

performed on the Edison tower project.

58 With regard specifically to fall protection, the record 

shows that, on the day of the accident, two weeks after he had already started working, JV had 

no fall protection training record on file at any of the vendors Tower Maintenance relied upon to 

provide fall protection training to its employees.

59 (Tr. at 183-84; Exs. C-6 at ¶ 9; C-22; C-23; 

C-24; Resp’t Br. at 14.) Indeed, JV was scheduled to take training in November 2012. (Tr. at 

 

58 See p. 22 supra; App’x B. 

59 As discussed above, Respondent’s argument that it lost JV’s training record due to Hurricane 

Sandy is unsupported and not credited. See p. 29 n.35 supra. 
72 

183.) This evidence supports a finding that Tower Maintenance failed to comply with this 

standard with regard to JV and his necessary fall protection training. Well Solutions, Inc., Rig 

No. 30, 17 BNA OSHC at 1214-15. 

I also find that Respondent violated the training standard with regard to RS. Although 

the record establishes that RS was trained in fall protection on September 5, 2012, RS started 

working for Tower Maintenance before this training, in August 2012. (Tr. at 114; Ex. C-22 at 

22; App’x B.) The training RS attended was in English. His primary language is Portuguese. Tr. 

at 231-232, 235). RS testified that he used the PFAS device improperly by wrapping it around 

an iron beam and clipping back onto the cord, or clipping onto the step bolts, or not clipping off 

at all. These methods are all inconsistent uses with any fall protection training he received. (Tr. 

at 272-274.) This evidence discloses that Tower Maintenance did not ensure that RS understood 

the fall protection training that was provided to him, in violation of the cited standard.

Finally, there were no training certificates on file for several painters engaged in tower 

painting work on the PSE&G transmission tower painting project on October 25, 2012: Marcelo 

Leiroz, Ederson Trizotte, Osias Figugiredo, Domingos Da Silva, Euflates Passos, and JV. (Ex. J1 at ¶¶ 17, 21 through 27.)60 As discussed above, I give the absence of any training records for 

these workers great weight as Respondent was in the best position to provide these training 

documents. Well Solutions, Inc., Rig No. 30, 17 BNA OSHC at 1214-15. 

The Secretary has established non-compliance with § 1910.269(a)(2)(i). 

2. Section 1910.269(a)(2)(ii) 

Section 1910.269(a)(2)(ii) delineates the training requirements for “qualified persons” on 

the Tower Maintenance worksite. Only qualified employees should have been painting the tower 

 

60 See p. 22 supra; App’x B. 
73 

cage in areas near electric power lines above 50 volts, such as the No. 3 power line. 29 C.F.R. 

§ 1910.269(l)(1). As discussed above, however, the record evidence establishes that none of the 

painters had the familiarity or competence to be considered a qualified person on the Tower 

Maintenance Edison worksite.61 It therefore follows that Tower Maintenance did not train its 

painters, including JV who worked closest to the No. 3 power line, in compliance with the 

requirements of this standard while working on the Edison tower. Moreover, as discussed above, 

the record does not establish that supervisor Psareas and foreman Mackeivicz had the requisite 

training and competence as required under this standard. 

The Secretary has established non-compliance with § 1910.269(a)(2)(ii). 

3. Sections 1910.332(b)(1) and (2) 

Sections 1910.332(b)(1) and (2) require, in relevant part, that “unqualified” employees be 

trained in electrical “safety related work practices” regarding potential hazards related to their 

job assignments.

The Secretary claims that working with conductive paint near energized power lines was 

a safety-related work practice in which Tower Maintenance painters should have been trained. 

(Sec’y Br. at 68.) Using conductive paint on their hands brought the painters closer to the 

minimum approach distance than if they did not use conductive paint. This hazard, covered 

under 29 C.F.R. § 1910.333(c)(3)(i)(A)(l), required training so that the painters knew how to 

paint safely and knew the minimum approach distance. As found above, however, JV as well as 

several other painters had no electrical training before being sent to work on the Edison tower in 

such close proximity to a 26 kV power line. Respondent directed its painters to work on a 

project that only “qualified” persons were appropriately trained and qualified to safely perform. 

 

61 See pp. 25-31 supra. 
74 

As found above, none of the Tower Maintenance painters working on the Edison tower, on 

October 25, 2012, were qualified. Some did not even have basic training to work safely on the 

Edison tower. 

The Secretary has established non-compliance with §§ 1910.332(b)(1) and (2).

C. The Secretary has established that JV had access to the violative condition 

The record establishes that JV, as well as several of Respondent’s other painters working 

on October 25, 2012, worked at a height of at least 60 feet and were required to wear a PFAS 

device for the fall hazard to which they were exposed. JV and Marcelo Leiroz, Ederson Trizotte, 

Osias Figugiredo, Domingos Da Silva, and Euflates Passos had not been trained in fall 

protection. The record also establishes that on the day of the accident, JV, as well as the other 

painters working on the Edison tower, including RS, Fonseca Alves and Da Silva, were not 

trained as “qualified persons.” Some of the Tower Maintenance painters working, on October 

25, 2012, on the PSE&G transmission tower painting project had no electrical training at all, and 

were working where only a “qualified person” should have been working – near areas of 

exposed, uninsulated power lines energized at more than 50 volts.62 29 C.F.R. § 1910.269(l)(1). 

The Secretary has established exposure for this citation item. Bardav, Inc., 24 BNA 

OSHC 2105, 2112 (No. 10-1055, 2014) (concluding that exposure is established for training 

citation item when worker “engaged in excavation work without first receiving required 

training”) citing Gen. Motors Corp., 22 BNA OSHC 1019, 1030 (No. 91-2834E, 

2007)(consolidated)(“finding it unreasonable to require that employee be exposed to a hazard 

before requiring that he be trained to recognize and avoid that hazard.”). 

 

62 See pp. 25-31, p. 30 n.36 supra; App’x B. 
75 

D. Tower Maintenance knew or should have known that its painters were not trained

in fall protection or electrical hazards and that its painters were not trained as 

“qualified” persons

The evidence in the record establishes that Respondent knew or should have known that 

JV, as well as several of Respondent’s other painters working on October 25, 2012 were not 

trained in fall protection or electrical hazards, and that they were not trained as “qualified” 

persons to work on the Edison project. Respondent is in charge of its training program and so it

is in the best position to know who is trained and who is not. Pressure Concrete Constr., 15 

BNA OSHC 2011, 2018 (No. 90-2668, 1992) (“[t]he fact that [the company] failed to train 

[employees] in the recognition and avoidance of dangerous conditions establishes that it had at 

least constructive knowledge of the inadequacy of its training program.”). Even if JV, or any 

other painter, presented a training certificate to Tower Maintenance before beginning work on

the Edison project transmission tower, Respondent’s duty to train was not obviated. DanisShook Joint Venture XXV v. Sec'y of Labor, 319 F.3d 805, 811 (6th Cir. 2003) (“Employers 

cannot count on employees' common sense and experience to preclude the need for 

instructions.”). Knowledge has been established for this citation item.

Citation 2, Item 2 is affirmed.

E. Characterization

1. Serious

The Secretary alleges that this citation item can be characterized as serious. (Sec’y Br. at 

71.) A violation is “serious” if there was a substantial probability that death or serious physical 

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

that JV was electrocuted and fell at least 60 feet. JV was not trained in fall protection or 

electrical hazards. JV was working in an area where only trained “qualified persons” should 
76 

have been working. Therefore, he was untrained for the electrical hazards he faced. As a result 

of his lack of training, he died. Compass Envtl., Inc., 23 BNA OSHC 1132, 1136 (No. 06-1036, 

2010), aff’d, 663 F.3d 1164 (10th Cir. 2011) (finding violation serious because evidence showed 

that failure to provide training could, and did, result in death). 

This citation item is properly characterized as serious regarding the violations of the 

following cited standards: 29 C.F.R. § 1910.269(a)(2)(i), 29 C.F.R. § 1910.269(a)(2)(ii), 29 

C.F.R. § 1910.332(b)(1), and 29 C.F.R. § 1910.332(b)(2). 

2. Repeat

The Secretary also alleges that this citation item can be characterized as repeat. (Sec’y 

Br. at 71.) As discussed above, “[a] violation is repeated under section 17(a) of the Act if, at the 

time of the alleged repeated violation, there was a Commission final order against the same 

employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC at 1063. “[T]he 

principal factor in determining whether a violation is repeated is whether the two violations 

resulted in substantially similar hazards.” Amerisig Se., Inc., 17 BNA OSHC at 1661. 

“ ‘[S]ubstantially similar’ must be defined sufficiently narrowly that the citation for the first 

violation placed the employer on notice of the need to take steps to prevent the second 

violation.” Caterpillar, Inc. v. Herman, 154 F.3d at 403. 

To determine whether a violation is repeated based on a previous violation of a different 

training standard, the Commission compares the two training standards that were violated and 

the resulting hazards. Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1345 (No. 00-1986, 

2003) (comparing hazards that “two roofers were not trained to recognize and avoid” to hold that 

they were “largely the same,” resulting in a repeat characterization.) 
77 

The Secretary claims that the predicate for the repeat characterization of this citation item 

is Respondent’s previous violation of a fall protection training standard found at 29 C.F.R. 

§ 1926.503(b)(1), which the parties stipulated became a final order of the Commission on July 

15, 2011.63 (Amended Complaint at ¶ VI; Sec’y Br. at 71; Ex. J-1 at ¶ 6.) Tower Maintenance’s 

violation of this standard became a final order of the Commission as a result of the fatal accident 

in Macungie, Pennsylvania. (Exs. J-1 at ¶¶ 4, 6; Ex. C-27.) Respondent claims that the previous 

violation of section 1926.503(b)(1) cannot be used as a predicate for a repeat characterization 

here because the two standards are “distinct.” (Resp’t Br. at 16.) 

In the settlement agreement for the predicate standard, the alleged violation description 

was amended. (Ex. C-27.) As noted above, it was grouped with the other violations and given 

the same violation description: 

 

63 Section 1926.503(b)(1) provides in pertinent part: 

The employer shall verify compliance with paragraph (a) of this section by 

preparing a written certification record. The written certification record shall 

contain the name or other identity of the employee trained, the date(s) of the 

training, and the signature of the person who conducted the training or the 

signature of the employer. If the employer relies on training conducted by 

another employer or completed prior to the effective date of this section, the 

certification record shall indicate the date the employer determined the prior 

training was adequate rather than the date of actual training.

29 C.F.R. § 1926.503(b)(1). Notably, paragraph (a) states in pertinent part: 

(1) The employer shall provide a training program for each employee who might 

be exposed to fall hazards. The program shall enable each employee to recognize 

the hazards of falling and shall train each employee in the procedures to be 

followed in order to minimize these hazards; 

(2) The employer shall assure that each employee has been trained, as necessary, 

by a competent person qualified in the following areas: (i) the nature of fall 

hazards in the work area; (ii) the correct procedures for erecting, maintaining, 

disassembling, and inspecting the fall protection systems to be used; (iii) the use 

and operation of personal fall arrest systems . . . . 

29 C.F.R. § 1926.503(a)(1), (2). 
78 

Throughout Work Area – Even though a proper fall arrest system was provided to the

employee, the employer did not ensure that the subject employee that fell was protected 

from falls through the use of fall protection systems on or about 10/10/10. 

(Ex. C-27 at 1.) 

In the formal settlement agreement and, in the final order, the violation of training standard 

1926.503(b)(1) was affirmed, even though the grouped violation description in the settlement 

agreement does not specifically mention training. 

The circumstance that led to the previous training violation was, as the Secretary points 

out, nearly identical to the circumstance here: an employee fell and died as a result of the fall. 

(Sec’y Br. at 72; Ex. J-1 at ¶ 3.) In Macungie, Respondent was cited for violating a training 

standard that required Respondent to “verify compliance” with a fall protection training program. 

29 C.F.R. § 1926.503(b)(1). By not verifying compliance with a fall protection training 

requirement, Respondent did not ensure that its employees were trained in fall protection. As a 

result, one of Tower Maintenance’s employees at the Macungie worksite attached to a step bolt 

and fell, and died as a result of that fall. Respondent was therefore on notice that it had to verify 

that its painters were trained in fall protection.

In the instant case, regarding the Edison transmission tower painting project, Respondent 

sent several employees to work at great heights on electric transmission towers without 

certification of that they had received fall protection training. (See App’x B.) It was accepted by 

top management that a routine way to attach or anchor a PFAS was to use a step bolt, which is an 

improper method of fall protection. Additionally, both JV and RS fell from great heights. RS 

suffered serious bodily injury as a result of his fall. Respondent does not deny that the resulting 

hazard from the violations of these different standards was the same: a fall from a great height 

that resulted in death or serious bodily injury. (Resp’t Br. at 16-17.) 
79 

This citation item regarding the violation of cited standard 1910.269(a)(2)(1) is properly 

characterized as repeat.

Penalties

“Section 17(j) of the [OSH] Act, 29 U.S.C. § 666(j), requires that when assessing 

penalties, the Commission must give ‘due consideration’ to four criteria: the size of the 

employer's business, gravity of the violation, good faith, and prior history of violations.” Hern 

Iron Works, Inc., 16 BNA OSHC 1619, 1624 (No. 88-1962, 1994). When determining gravity, 

typically the most important factor, the Commission considers the number of exposed 

employees, the duration of their exposure, whether precautions could have been taken against 

injury, and the likelihood of injury. Id. When evaluating good faith: 

[t]he Commission focuses on a number of factors relating to the employer's 

actions, ‘including the employer's safety and health program and its commitment 

to assuring safe and healthful working conditions[,]’ in determining whether an 

employer's overall efforts to comply with the OSH Act and minimize any harm 

from the violations merit a penalty reduction. 

Monroe Drywall Constr., Inc., 24 BNA OSHC 1209, 1211 (No. 12-0379, 2013) (citations 

omitted). The Commission is the “final arbiter” of penalties. Hern Iron Works, 16 BNA OSHC 

at 1622 (citation omitted).

For serious Citation 1, Item 1, the Secretary proposed the maximum statutory penalty of 

$7,000. 29 U.S.C. § 666(b). For willful Citation 2, Item 1, the Secretary initially proposed a 

penalty of $46,200 in the Amended Complaint, however, the Secretary now claims that the 

maximum statutory penalty of $70,000 should be assessed for this citation item. (Amended 

Citation at ¶ VIII; Sec’y Br. at 81.) For serious / repeat Citation 2, Item 2, the Secretary 

proposed a penalty of $14,000. For the following reasons, I find the Secretary’s proposed 

penalties appropriate. 
80 

While Respondent has few permanent employees, and relatively few seasonal employees, 

the gravity for each of the violations is high. All of the painters who testified worked at great 

heights while using defective fall protection and, at times, working without fall protection. No 

Tower Maintenance painter working on the Edison tower, on October 25, 2012, was a “qualified 

person,” but they all worked in areas restricted to work by qualified persons only, exposing 

themselves to extreme hazards they were not trained to even recognize. JV was electrocuted on 

the job, fell, and hit RS, who suffered serious bodily injury as a result of his fall of 40 feet. 

Respondent claims that it “attempted to comply with its training and safety requirements 

in good faith.” (Resp’t Br. at 18.) The evidence reveals otherwise. Although Respondent had a 

written safety statement, it was only provided as part of a bid package to secure a job. It was not 

provided to or posted for the painters to see. Foreman Mackeivicz had never seen it. 

Supervisor Psareas, the safety supervisor, did not follow it – he left the worksite, which was 

against Respondent’s safety policy, to make a telephone call and was not on the worksite when 

the accident occurred. 

Moreover, the record establishes that Respondent’s management knowingly disregarded

the unsafe, noncompliant, fall protection methods its painters were using on the Edison 

transmission tower painting project even after the Macungie incident, which occurred only two

years prior to the Edison incident. Furthermore, the fact that there were absolutely no training 

certificates on file for several painters who were working on the Edison project towers on 

October 25, 2012, shows that Respondent has not learned from its previous violations or that its 

actions were irrefutably reckless, and not in good faith. 

The Secretary’s proposed penalties for each citation item are assessed as proposed.
81 

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. 

ORDER

 Based on these findings of fact and conclusions of law, it is ordered that: 

1) Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.333(c)(3)(i)(A)(1), 

is AFFIRMED and a penalty of $7,000 is ASSESSED. 

2) Item 1 of Citation 2, alleging a willful violation of 29 C.F.R. §§ 1910.269(g)(2)(iii) and 

(g)(2)(v), is AFFIRMED and a penalty of $70,000 is ASSESSED. 

3) Item 2 of Citation 2, alleging a repeat violation of 29 C.F.R. § 1910.269(a)(2)(i) is 

AFFIRMED. Further, Item 2 of Citation 2, alleging serious violations of 29 C.F.R. 

§§ 1910.269(a)(2)(ii); 1910.332(b)(1) and (b)(2), is also AFFIRMED. A penalty of 

$14,000 is ASSESSED. 

/s/ Carol A. Baumerich 

Carol A. Baumerich 

Date: May 16, 2016 Judge, OSHRC 
 i 

Tower Maintenance Corp.

Docket No. 13-0777

Decision Appendices
ii

Appendix A: Procedural Background

The previous citation allegations set out in detail in this appendix are provided to describe 

the procedural background and to focus the analysis in the Decision and Order on the standards 

in the Amended Complaint that are solely at issue now. 

Alleged Violations in the Initial Citation

In the initial citation, issued on April 8, 2013, the Secretary alleged violations of 

OSHA’s construction standards found at 29 C.F.R. Part 1926. The citation items were as 

follows: 

Citation1, Item 1 alleged a serious violation of 29 C.F.R. § 1926.416(a)(1), which states: 

No employer shall permit an employee to work in such proximity to any part of 

an electric power circuit that the employee could contact the electric power circuit 

in the course of work, unless the employee is protected against electric shock by 

deenergizing the circuit and grounding it or by guarding it effectively by 

insulation or other means. 

29 C.F.R. § 1926.416(a)(1). The alleged violation description states: 

Tower Maintenance Corporation / Route 1 North Edison, NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels: Employee(s) 

were not protected from contact with electrical line(s) while performing a painting 

operation on or about 10/25/2012. 

Ex. C-4. The Secretary proposed a penalty of $7,000 for this citation item. 

Citation 2, Item 1 alleged a repeat violation of 29 C.F.R. § 1926.501(b)(1), which states: 

Each employee on a walking / working surface 6 feet (1.8 meters) or more above 

lower levels was not protected from falling by a guardrail system, safety net 

system, or personal fall arrest system.

29 C.F.R. § 1926.501(b)(1). The alleged violation description states: 

Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels. The employees 

were not protected from falls through the use of a fall protection system on or 

about 10/25/2012. 
iii

Tower Maintenance Corporation was previously cited for a violation of this 

Occupational Safety and Health Standard or its equivalent, 1926.501(b)(1), which 

is contained in OSHA Inspection Number 314720780, Citation 1, Item Number 2, 

and was affirmed as a final order on July 15, 2011, with respect to a workplace 

located at 456 Glen Cove Ave., Seacliff, NY 11579. 

Ex. C-4. The Secretary proposed a $14,000 penalty for this citation item. 

Citation 2, Item 2 alleged a repeat violation of 29 C.F.R. § 1926.503(b)(1), which states: 

Where the employer relies on training conducted by another employer or 

completed prior to the effective date of this section paragraph (a), the employer 

did not verify compliance with this section by preparing a written certification 

record that indicate[s] the date the employer determined the prior training was 

adequate. 

29 C.F.R. § 1926.503(b)(1). The alleged violation description states: 

Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels: 

1 – The employer did not evaluate and /or maintain records to indicate that 

(a) The training provided by previous employer(s) and /or training 

contractor(s) was done prior to allowing employees to perform work (specifically 

on transmission towers) 

(b) To ensure the effectiveness of that training and that the employee(s) has 

the knowledge and skills needed to perform the operation safely. 

Tower Maintenance Corporation was previously cited for a violation of this 

Occupational Safety and Health Standard or its equivalent, 1926.503(b)(1), which 

is contained in OSHA Inspection Number 314720780, Citation 1, Item Number 

4(a), and was affirmed as a final order on July 15, 2011, with respect to a 

workplace located at 456 Glen Cove Ave., Seacliff, NY 11579. 

Ex. C-4. The Secretary proposed a $14,000 penalty for this citation item. 

 Respondent filed its timely Notice of Contest to this citation on April 12, 2013. 

Alleged Violations in the Initial Complaint 

In the initial complaint, filed on August 2, 2013, the Secretary amended the citation items 

to allege violations of other OSHA electrical safety standards, fall protection standards, and 

training standards, some of which fell under OSHA’s standards for “Electric Power Generation, 
iv

Transmission, and Distribution,” found in 29 C.F.R. Part 1910. Among other amendments, the 

Secretary amended the characterization of Citation 2, Item 1 to a “willful,” in addition to being a 

“repeat,” violation. The Complaint increased the total proposed penalty to $67,200. 

Citation1, Item 1 was amended to allege a serious violation of 29 C.F.R. 

§ 1926.416(a)(1) and, in the alternative 29 C.F.R. § 1910.269(l)(2), which states: 

The employer shall ensure that no employee approaches or takes any conductive 

object closer to exposed energized parts than the minimum approach distance set 

forth in this standard. 

29 C.F.R. § 1910.269(l)(2). The alleged violation description states: 

Tower Maintenance Corporation / Route 1 North Edison, NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels: the employer 

failed to ensure that no employee approached within 3 feet, 7 inches, of exposed 

energized electrical lines while performing a painting operation on or about 

10/25/2012. 

Complaint at ¶ VII. The Secretary did not amend the proposed a penalty of $7,000 for this 

citation item.

Citation 2, Item 1 was amended to allege a serious/repeat/willful violation of 29 C.F.R. 

§§ 1926.28(a) and 1926.501(b)(1), or, in the alternative, that the cited conduct violated 29 C.F.R. 

§ 1910.269(g)(2). According to the Complaint, sections 1926.28(a) and 1926.501(b)(1) provide 

that: 

The employer failed to ensure that each employee on a walking / working surface 

6 feet (1.8 meters) or more above lower levels was protected from falling by a 

guardrail system, safety net system, or personal fall arrest system.

Complaint at ¶ VIII. The alleged violation description states: 

Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. 131 ft. in height 26 kV at 

the lower level and 138 kV from the middle to the upper levels. The employer 

failed to ensure that employees wore appropriate fall protection equipment. The 

employees were not protected from falls through the use of a functional fall 

protection system on or about 10/25/2012. Employees were using lanyards with 
 v 

defective D rings which were covered with paint and incapable of closing 

securely. 

Complaint at ¶ VIII. The Secretary amended the proposed penalty for this citation item from 

$14,000 to $46,200. 

Citation 2, Item 2 was amended to allege alleged a serious/repeat violation of 29 C.F.R. 

§ 1926.503(b)(1), and, in the alternative 29 C.F.R. § 1910.269(a)(2), which provides: 

Employees shall be trained in and familiar with the safety-related work practices, 

safety procedures, and other safety requirements in this section that pertain to 

their respective job assignments. 

Complaint at ¶ IX. The alleged violation description states: 

Tower Maintenance Corporation / Route 1 North Edison NJ Site – Electric 

Transmission Tower – Lattice Steel Structure – Approx. [1]31 ft. in height 26 kV 

at the lower level and 138 kV from the middle to the upper levels: the employer 

did not ensure that employees were trained in the safety-related work practices, 

procedures, and requirements associated with painting energized transmission 

towers. 

Complaint at ¶ IX. The Secretary did not amend the proposed $14,000 penalty for this citation 

item.

Respondent filed its Answer to the Complaint on August 19, 2013. In its Answer to this 

initial Complaint, Respondent denied the specific allegations and asserted the following 

affirmative defenses, among others: (1) excessive penalty in light of the small size of the 

employer, (2) all of the citations were not issued with “reasonable promptness,” (3) the 

violations, if any, were non-serious, (4) Respondent did in fact have an “adequate safety program 

run by knowledgeable supervisory personnel” for the alleged training violation, (5) “training 

provided by previous employer(s) and/or third party(s) and/or training contractor(s) was done 

prior to allowing employees to perform work” for the alleged training violation, (6) “Respondent 

ensured the effectiveness of training and that the employee(s) has the knowledge and skills 

needed to perform the operations safely” for the alleged training violation, (7) unpreventable 
 vi 

employee misconduct for the alleged training violation, (8) unpreventable employee misconduct 

defense for the alleged fall protection violation, (9) impossibility or infeasibility for the alleged 

fall protection violation, (10) unpreventable third party / owner misconduct for the alleged 

electrical violation, (11) unforeseeability for the alleged electrical violation, (12) unpreventable 

employee misconduct for the alleged electrical violation, (13) “third-party and/or owner assured 

that Respondent’s employees would not come into contact with energized electrical lines in the 

course of their work and, therefore, Respondent did exercise reasonable diligence to ensure” 

compliance with the alleged electrical standard, (14) impossibility or infeasibility for the alleged 

electrical violation, and (15) vindictive prosecution by the Secretary. Answer to Initial 

Complaint at ¶¶ IV-XI, XIII-XXVII. 
 vii 

Appendix B – Tower Maintenance Employee and Supervisor Training Records

On October 25, 2012, Tower Maintenance employed at least twenty-five employees. 

(Ex. J-1 ¶ 9). Tower Maintenance was engaged in repainting an electric transmission tower 

located at Route 1 North in Edison, New Jersey. (Ex. J-1 ¶ 11). 

On October 25, 2012, the following Tower Maintenance employees were employed and 

engaged in tower painting work on the PSE&G transmission tower painting project: Alessandro 

De Almeida, Alan Kedes Fonseca Alves, Marcelo Silva, RS, Marcelo Leiroz, Ederson Trizotte, 

Osias Figugiredo, Caio Resende, Domingos Da Silva, Euflates Passos, and JV. (Ex. J-1 ¶¶ 17 

through 27). It is undisputed that Nikolaos Psareas and Josimar Mackeivicz also worked on the 

Edison project on October 25, 2012. A summary of their training records follows. 

Ex. 

J- 1 

Name Training - CCS 

Consulting Services, 

Inc., between 

01/01/12 – 10/25/12. 

Ex. C-22 

Training – The 

Jacman Group, 

between 

01/01/12-

10/25/12. 

Ex. C-23. 

Training –

Communications 

Industry Training 

and Certification 

Academy, LLC 

(CITCA), between 

01/01/12-12/31/12. 

Ex. C-24. 

PSE & G

Ex. C-2 

¶ 17 Alessandro De 

Almeida

C-22, p. 21

Fall Protection, Fall 

Arrest Systems, & 

Fall Hazard 

Awareness Training – 

09/05/12 [Alejandro 

Almieda]

C-23, p. 2 - none C-24, p. 3 - none

[Allesandro De 

Almeida]

None

¶ 18 Alan Fonseca 

[Alves] – See 

Decision n.13. 

C- 22, p. 5, 11; R-11

Alan Kedis – Fall 

Protection Training 

04/03/12. 

C-22, p. 12; R-11 

OSHA 10 – Hour 

Training Course –

C-23, p. 4, 5, 9

[Alan Kedis 

Fonseca]

NFPA 70E 

Electrical Arc 

Flash Training – 

04/05/12. 

C-24, p. 92, 100-107. 

[Alan Kedes Fonseca 

Alves]

Authorized Climber – 

03/26/12. 

None
viii

Ex. 

J- 1 

Name Training - CCS 

Consulting Services, 

Inc., between 

01/01/12 – 10/25/12. 

Ex. C-22 

Training – The 

Jacman Group, 

between 

01/01/12-

10/25/12. 

Ex. C-23. 

Training –

Communications 

Industry Training 

and Certification 

Academy, LLC 

(CITCA), between 

01/01/12-12/31/12. 

Ex. C-24. 

PSE & G

Ex. C-2 

04/04/12.

¶ 19 Marcelo Silva C-22, p. 20

Fall Protection, Fall 

Arrest Systems, & 

Fall Hazard 

Awareness Training – 

09/05/12. 

C-23, p. 2 - none C-24, p. 3 - none None

¶ 20 RS C-22, p. 22

Fall Protection, Fall 

Arrest Systems, & 

Fall Hazard 

Awareness Training65

– 09/05/12. 

C-23, p. 2 - none C-24, p. 3 - none None

¶ 21 Marcelo 

Leiroz

C-22, p. 3 - none C-23, p. 3 - none C-24, p. 3 - none None

¶ 22 Ederson 

Trizotte

C-22, p. 3 - none C-23, p. 3 - none C-24, p. 3 - none None

¶ 23 Osias 

Figugiredo

C-22, p. 3 - none C-23, p. 3 - none C-24, p. 3 - none None

¶ 24 Caio Resende C-22, p. 3 - none C-23, p. 3 - none C-24, p. 4, 32-40, 91

Authorized Climber – 

08/07/12. 

[Caio Nunes 

Resende]

C-2

Sub Station 

Awareness

08/02/12 

¶ 25 Domingos Da 

Silva

C-22, p. 3 - none C-23, p. 3 - none C-24, p. 3 - none None

¶ 26 Euflates 

Passos

C-22, p. 3 - none C-23, p. 3 - none C-24, p. 3 - none None

¶ 27 JV C-22, p. 3 - none C-23, p. 3 - none C-24, p. 3 - none None

 

65 C-22, pp 1-2, ¶ 4 “The Fall Protection Training Course provides a comprehensive overview of 

OSHA’s fall protection requirements and includes training on the use of fall arrest systems and 

fall hazard awareness.” The course summary does not include an electrical component.
ix

Ex. 

J- 1 

Name Training - CCS 

Consulting Services, 

Inc., between 

01/01/12 – 10/25/12. 

Ex. C-22 

Training – The 

Jacman Group, 

between 

01/01/12-

10/25/12. 

Ex. C-23. 

Training –

Communications 

Industry Training 

and Certification 

Academy, LLC 

(CITCA), between 

01/01/12-12/31/12. 

Ex. C-24. 

PSE & G

Ex. C-2 

Josimar 

Mackeivicz

C- 22, p. 5, 7; R-11

Fall Protection 

Training 04/03/12. 

C-22, p. 12; R-11 

OSHA 10 – Hour 

Training Course – 

04/04/12. 

C-23, p. 4, 5, 6

NFPA 70E 

Electrical Arc 

Flash Training – 

04/05/12. 

C-24, p. 92, 93-99, 

107. 

Authorized Climber – 

03/26/12. 

C-24, p. 108 - 121 

Tower Rescue / 

Competent Climber – 

03/27/12 – 03/29/12. 

C-2

Sub Station 

Awareness

08/02/12 

Nikolaos 

Psareas66

C- 22, p. 5, 6; R-11; 

R-38. 

Fall Protection 

Training 04/03/12. 

C-22, p. 12; R-11; R38. 

OSHA 10 – Hour 

Training Course – 

04/04/12. 

C-23, p. 4, 5; R38. 

NFPA 70E 

Electrical Arc 

Flash Training – 

04/05/12. 

C-24, p. 4, 5-13, 86, 

91; R-38. 

Authorized Climber67

– 08/07/12. 

C-2

Sub Station 

Awareness

08/02/12 

 

66 The record includes the following additional training documents for Nikolaos Psareas: 

Competent Tower Climber / Rescuer Training presented by Ellis Fall Safety Solutions, LLC – 

11/26/12-11/28/12 (this training post-dates the October 25, 2012 fatal accident); OSHA 10 Hour 

Construction Course presented by 360 Training - 02/10/10; Boots on the Roof presented by 

Unitek Education - 06/20/09; Lead Contractor presented by Senagryph Training Facilities – 

11/25/96-11/30/96. Ex. R-38. 

67 Tr. 694-95. Authorized climber training was presented in English, without an interpreter. 

This course did not include an electrical component. 
 x 

Below is a summary of additional training documents, in the record, for Tower 

Maintenance employees and supervisors. 

Name Training - CCS 

Consulting Services, 

Inc., (01/01/12 – 

10/25/12). Ex. C-22 

Training – The 

Jacman Group, 

(01/01/12-

10/25/12). Ex. 

C-23.

Training – CITCA, 

(01/01/12-12/31/12). 

Ex. C-24. 

PSE & G

Ex. C-2 

Elizabeth 

Vlahopoulos 

C-22, p. 2, 14, 15, 16

C-5 

Supervisor/Competent 

Person Refresher 

Training for 

Deleading of 

Industrial Structures – 

06/11/12. 

None None None

Peter 

Vlahopoulos 

C-22, p. 2, 14, 15, 18

C-5 

Supervisor/Competent 

Person Refresher 

Training for 

Deleading of 

Industrial Structures – 

06/11/12. 

None None None

Juan 

Alvarenga

None None C-24, p. 4, 59-65, 88, 

91. 

Authorized Climber – 

08/07/12. 

C-2

Sub Station 

Awareness

08/02/12 

Alexandre 

Alves

C- 22, p. 5, 8; R-11

Fall Protection 

Training 04/03/12. 

C-22, p. 12; R-11 

OSHA 10 – Hour 

Training Course – 

04/04/12.

C-23, p. 4, 5, 11

NFPA 70E 

Electrical Arc 

Flash Training – 

04/05/12. 

None C-2

Sub Station 

Awareness

08/02/12 

Carlos Aquino C- 22, p. 5, 10; R-11

Fall Protection 

Training 04/03/12. 

C-22, p. 12; R-11 

OSHA 10 – Hour 

Training Course – 

04/04/12. 

C-23, p. 4, 5, 10

NFPA 70E 

Electrical Arc 

Flash Training – 

04/05/12. 

None C-2

Sub Station 

Awareness

08/02/12 
xi

Name Training - CCS 

Consulting Services, 

Inc., (01/01/12 – 

10/25/12). Ex. C-22 

Training – The 

Jacman Group, 

(01/01/12-

10/25/12). Ex. 

C-23.

Training – CITCA, 

(01/01/12-12/31/12). 

Ex. C-24. 

PSE & G

Ex. C-2 

Evaristo Jr. 

Concepcion 

None None C-24, p. 4, 23-31, 90, 

91 

Authorized Climber – 

08/07/12. 

C-2

Sub Station 

Awareness

08/02/12. 

Jose Neves Da 

Paz

C- 22, p. 5, 9; R-11

Fall Protection 

Training 04/03/12. 

C-22, p. 12; R-11 

OSHA 10 – Hour 

Training Course – 

04/04/12. 

C-23, p. 4, 5, 8

NFPA 70E 

Electrical Arc 

Flash Training – 

04/05/12. 

None C-2

Sub Station 

Awareness

08/02/12. 

Valdeir De 

Souza 

None None C-24, p. 4, 66-74, 84, 

91 

Authorized Climber – 

08/07/12. 

C-2

Sub Station 

Awareness

08/02/12. 

Jose M. Felix None None C-24, p. 4, 14-22, 91.

Authorized Climber – 

08/07/12. 

C-2

Sub Station 

Awareness

08/02/12. 

Fabio 

Cassimino 

Ferreira

None None C-24, p. 4, 75-81, 85, 

91 

Authorized Climber – 

08/07/12.

C-2

Sub Station 

Awareness

08/02/12.

Jeff 

Goykhmad 

C-22, p. 2, 14, 15, 17

C-5 

Supervisor/Competent 

Person Refresher 

Training for 

Deleading of 

Industrial Structures – 

06/11/12. 

None None None

Edivaldo C. 

Medeiros

None None C-24, p. 4, 41-49, 91

Authorized Climber – 

08/07/12. 

C-2

Sub Station 

Awareness

08/02/12. 
xii

Name Training - CCS 

Consulting Services, 

Inc., (01/01/12 – 

10/25/12). Ex. C-22 

Training – The 

Jacman Group, 

(01/01/12-

10/25/12). Ex. 

C-23.

Training – CITCA, 

(01/01/12-12/31/12). 

Ex. C-24. 

PSE & G

Ex. C-2 

Elvis Pimentel C-22, p. 24

OSHA 30 – Hour 

Training – 08/18/12. 

C-22, p. 26. 

 C-5 

Supervisor/Competent 

Person Refresher 

Training for 

Deleading of 

Industrial Structures – 

08/13/12. 

None None None

Gilbert Roman None C-23, p. 4

NFPA 70E 

Electrical Arc 

Flash Training – 

04/05/12. 

None None

Alvaro Renso 

Salazar

None None C-24, p. 4, 50-58, 91

Authorized Climber – 

08/07/12. 

C-2

Sub Station 

Awareness

08/02/12.