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. 18-0034 

ARMSTRONG UTILITIES, INC. d/b/a 

ARMSTRONG CABLE SERVICES,

Respondent. 

ON BRIEFS:

Jessica L. Cole, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Edmund C. Baird, 

Associate Solicitor of Labor for Occupational Safety and Health; Kate S. O’Scannlain, Solicitor of 

Labor; U.S. Department of Labor, Washington, D.C. 

 For the Complainant

Michael S. Glassman, Esq. and Hayley L. Geiler, Esq.; Dinsmore & Shohl LLP, Cincinnati, OH 

 For the Respondent 

DECISION

Before: ATTWOOD, Chairman; LAIHOW, Commissioner. 

BY THE COMMISSION:

Armstrong Utilities, Inc. d/b/a Armstrong Cable Services is a telecommunications 

company that provides broadband internet, television, and telephone services, mostly in rural 

areas. An Armstrong crew was installing a new fiber-optic cable on utility poles in Bellville, Ohio, 

when a lineman contacted a 7.8kV electrical line. Following the incident, the Occupational Safety 

and Health Administration inspected the worksite and issued Armstrong a one-item serious citation 

alleging a violation of 29 C.F.R. § 1926.416(a)(1), a general requirement of Subpart K (Electrical) 

of the Construction standards. The Secretary amended the citation to allege in the alternative a 

serious violation of 29 C.F.R. § 1910.268(b)(7), a provision of the Telecommunications standard. 

Administrative Law Judge John B. Gatto affirmed the Secretary’s alternative allegation and 

assessed a $11,407 penalty. 
2 

For the following reasons, we conclude that the Secretary failed to establish the knowledge 

element of the alleged violation and therefore vacate the citation. 

BACKGROUND

On July 12, 2017, a four-member crew employed by Armstrong was installing fiber-optic 

cable below an energized electrical line along a mile-long stretch of road in a rural area of Bellville, 

Ohio. The crew’s work involved attaching the fiber-optic cable to steel wire that had been 

previously installed on the utility poles by another Armstrong crew. Each crew member, including 

foreman Brian Hilderbrand, was assigned a specific task. Hilderbrand flagged traffic in the road, 

while Bob Stroup drove a bucket truck with an aerial lift on the road along the path of the utility 

poles, and Travis Reed unspooled the cable from a cart onto the ground. The fourth crew member, 

R.M., rode in the truck’s bucket and strung the cable along the steel wire between utility poles. 

This required R.M. to attach the cable to the bucket using a metal clamp with a hook at the end 

(known as a “becky”), which pulled the cable along while the truck traveled down the road. 

Because of the wooded terrain around the utility poles, Stroup had to stop the truck 

approximately every 30 feet so that R.M. could boom the bucket up into the trees where he would

throw a weighted ball attached to the unclamped becky with “mule tape” through the trees; this 

allowed R.M. to pull the fiber-optic cable along the path of the poles. After throwing the ball, 

R.M. would boom the bucket out of the trees and Stroup would drive the truck toward the next 

pole. Once the truck was repositioned, R.M. would boom back up into the trees, locate and grab 

the tape on the weighted ball, then pull both the becky and cable through the trees. 

At the time of the incident, R.M. was working between utility poles 17 and 18, both of 

which had T-arms and were spaced about 300 feet apart.

1

 Shortly before, Hilderbrand saw him 

throw the weighted ball and start to retrieve it. Hilderbrand then turned and walked to the top of 

the hill to observe traffic, roughly 30 yards from R.M. When Hilderbrand reached the top of the 

hill, he heard R.M. make contact with the 7.8kV energized line, which the parties stipulated was 

ten feet, five inches (125 inches) above the fiber-optic cable at pole 17; four feet, nine inches (57 

1 On a pole with T-arms, the two electrical lines (one is energized and the other is “neutral”) hang 

on the outside of the arms, and the steel wire and fiber-optic cable hang below, from the middle of 

the pole. 
3 

inches) above at the mid-span; and five feet (60 inches) above at pole 18.2 R.M. suffered electrical 

shocks and burns.3

 

DISCUSSION

To establish a violation, the Secretary must show by a preponderance of the evidence “that 

the cited standard applies, there was a failure to comply with the standard, employees were exposed 

to the violative condition, and the employer knew or could have known of the violative condition 

with the exercise of reasonable diligence.”4

 Aerospace Testing All., No. 16-1167, 2020 WL 

5815499, at *2 (O.S.H.R.C., Sept. 21, 2020) (citing Briones Util. Co., 26 BNA OSHC 1218, 1219 

(No. 10-1372, 2016); Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), 

aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982)). On review, Armstrong argues that the judge 

erred in affirming the § 1910.268(b)(7) violation and specifically challenges the judge’s findings 

with respect to noncompliance, exposure, and knowledge.5

 

2

 Despite the parties’ stipulation to these measurements, the judge gave them “little weight,” 

finding that “[t]he record does not indicate that the measurements taken three months 

later . . . were an accurate indication of the actual measurements on the day of the accident.” This 

was plain error—the parties stipulated to these measurements and the Secretary never disputed 

their accuracy for purposes of the citation. See Fed. Deposit Ins. Corp. v. St. Paul Fire & Marine 

Ins. Co., 942 F.2d 1032, 1038 (6th Cir. 1991) (“Stipulations voluntarily entered by the parties are 

binding, both [on the trial court and on the appeals court].”). 

3

 The record does not establish what caused R.M. to breach the minimum approach distance 

(MAD) and contact the energized line.

4 In general, “[w]here it is highly probable that a Commission decision would be appealed to a 

particular circuit, the Commission has . . . applied the precedent of that circuit in deciding the 

case—even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 

BNA OSHC 2064, 2067 (No. 96-1719, 2000). The worksite here was in Ohio, which is within the 

Sixth Circuit, and Armstrong’s headquarters are in Pennsylvania, which is within the Third Circuit. 

See 29 U.S.C. § 660(a) (employers may seek review in the circuit in which the violation occurred, 

the circuit in which the employer’s principal office is located, or in the District of Columbia 

Circuit); 29 U.S.C. § 660(b) (Secretary may seek review in the circuit where the violation occurred 

or in the circuit in which the employer’s principal office is located). 

5 Armstrong does not challenge the judge’s determination that the provision cited by the Secretary 

in the alternative applied here. The company does argue that if the Commission affirms the alleged 

violation, it was the result of unpreventable employee misconduct. Given our conclusion that the 

knowledge element of the Secretary’s case has not been established, we do not reach the 

company’s affirmative defense. See Mountain States Tel. & Tel. Co., 9 BNA OSHC 2151, 2152 

(No. 13266, 1981) (“Unpreventable employee misconduct is an affirmative defense [to be 

considered after] . . . conclud[ing] that the Secretary has made out a prima facie case of a

violation.”). 
4 

 I. Noncompliance and Exposure

For 2Kv to 15Kv power lines, § 1910.268(b)(7) requires that an employee maintain a 24-

inch minimum approach distance (MAD) “unless” one of the provision’s enumerated exceptions 

has been implemented: (1) the employee is wearing insulated gloves or otherwise guarded; (2) the 

lines are insulated or grounded; or (3) the lines are deenergized.6

 29 C.F.R. § 1910.268(b)(7). 

Here, there is no dispute that none of these exceptions were implemented by Armstrong. 

The judge concluded that the Secretary established noncompliance because R.M. breached 

the MAD when he contacted the energized line. On review, Armstrong claims that this finding 

amounts to strict liability because “there is absolutely no evidence that any action or inaction by 

Armstrong failed to ensure that workers did not violate the 24[-]inch safe approach distance.”7 

We reject the company’s argument. Armstrong failed to comply with the cited requirements 

6 Section 1910.268(b)(7) states: 

Approach distances to exposed energized overhead power lines and parts. The 

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

closer to any electrically energized overhead power lines and parts than prescribed 

in Table R-2, unless: 

(i) The employee is insulated or guarded from the energized parts 

(insulating gloves rated for the voltage involved shall be considered 

adequate insulation), or 

(ii) The energized parts are insulated or guarded from the employee and any 

other conductive object at a different potential, or

(iii) The power conductors and equipment are deenergized and grounded.

7 Relying on Diebold v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978), Armstrong also argues 

that the Secretary failed to prove “ ‘the existence of a specific and technologically feasible means 

of compliance’ ” because the means of compliance the Secretary claims would have prevented 

R.M.’s breach of the MAD—inspecting the mile-long “run” (which encompasses the road and the 

surrounding conditions, including the utility poles, wires, and trees) and communicating changes 

in the distance between the energized line and steel wire to employees—are found nowhere in the 

statute or interpretive guidance and contradict industry practice. As explained below in our 

discussion of knowledge, we conclude that Armstrong acted reasonably in conducting a pre-work 

inspection and providing sufficient instructions to its employees. Nonetheless, the company failed 

to comply with § 1910.268(b)(7), which is a hybrid performance and specification standard in that 

it sets forth the MAD the employer “shall ensure” (the performance part of the standard) unless 

the employer provides protective equipment for its employees or takes certain protective measures 

(the specification part of the standard). Absent the use of any of the protective measures specified 

in the standard, the company had notice that it must otherwise “ensure” R.M. did not breach the 

24-inch MAD, which it failed to do given that contact was made. 
5 

because none of the standard’s protective measures were in place when R.M. breached the MAD 

and contacted the energized line, and the company did not otherwise “ensure” he did not breach 

the MAD.

8

 This finding does not render Armstrong strictly liable for the alleged violation because 

noncompliance is but one element of the Secretary’s prima facie case; here, the Secretary must 

also prove exposure, as well as knowledge. See S. Pan Servs. Co., 25 BNA OSHC 1081, 1090 

(No. 08-0866, 2014), aff’d, 685 F. App’x. 692 (11th Cir. 2017) (unpublished). 

As to exposure, the Secretary must show either that employees were actually exposed to 

the violative condition (through injury or death) or that it is reasonably predictable they have been 

or will be in the zone of danger posed by the condition. Dover High Performance Plastics, Inc., 

No. 14-1268, 2020 WL 5880242, at *2 (O.S.H.R.C., Sept. 25, 2020); see also Aerospace Testing, 

2020 WL 5815499, at *3 n.3. Here, the judge found “[t]here can be no dispute that [R.M.] was 

exposed to the hazard” because he “made physical contact with the electrical [line].” 

Armstrong argues that R.M.’s exposure to the energized line was not reasonably 

predictable because he was not required to breach the MAD to do his job. But the Secretary “need 

not show that an employee’s exposure was ‘reasonably predictable’ where there is actual 

exposure.” George J. Igel & Co. v. OSHRC, 50 F. App’x. 707, 713 (6th Cir. 2002) (unpublished); 

see also Par Elec. Contractors, Inc., 20 BNA OSHC 1624, 1626 (No. 99-1520, 2004) (“[W]ounds 

described in his autopsy report indicate that . . . [the electrocuted employee] also was clearly 

8 While Commissioner Laihow agrees that Armstrong failed to comply with § 1910.268(b)(7), she 

cannot help but notice that the standard, as written, coupled with current industry standards and 

practices, leaves employers like Armstrong in a very difficult position. Without considering the 

MAD, the specific compliance measures set forth in subsections (i)-(iii) pose their own complex 

challenges. Although subsection (i) contemplates the use of personal protective equipment, 

Armstrong Safety Coordinator Joe Bellis testified that the bucket trucks Armstrong employees 

work from cannot be insulated because the insulation interferes with communications. Likewise, 

subsection (ii) theoretically allows employers to comply with the standard by providing employees 

with insulated blankets, but this seems impractical for the type of work being performed here—

indeed, employees would have to insulate long distances of energized line or constantly place and 

remove insulating material as they progressed down the road. Doing that would no doubt impact 

efficiency and, more significantly, could be counterproductive to safety. Finally, Bellis’ 

undisputed testimony made clear that power companies are unwilling to deenergize their lines 

while telecom work is being performed, rendering subsection (iii) moot. In sum, Commissioner 

Laihow recognizes that the standard’s three specified alternatives may not always be feasible or 

practical. In this case, however, none of these alternatives were implemented and the MAD was 

breached.
6 

exposed to the hazardous condition.”). The parties stipulated that R.M. “sustained electrical shock 

injuries after contacting” the energized line. Accordingly, we find that the Secretary has 

established actual exposure.

II. Knowledge

To establish knowledge, the Secretary must show by a preponderance of the evidence “that 

the employer knew of the hazardous condition, or could have known through the exercise of 

reasonable diligence.” Mountain States Contractors, LLC v. Perez, 825 F.3d 274, 283 (6th Cir. 

2016) (citing Carlisle Equip. Co. v. Sec’y of Labor, 24 F.3d 790, 792-93 (6th Cir. 1994)). Here, 

the Secretary alleges that with the exercise of reasonable diligence, Armstrong could have known 

of the violative condition. 

“When considering the question of reasonable diligence, the [Commission] looks to a 

number of factors including: ‘an employer’s obligation to inspect the work area, to anticipate 

hazards to which employees may be exposed, and to take measures to prevent the occurrence.’ ” 

Mountain States Contractors, 825 F.3d at 285 (quoting Kokosing Constr. Co. v. OSHRC, 232 F. 

App’x. 510, 512 (6th Cir. 2007) (unpublished)); see also Jacobs Field Servs. N. Am., 25 BNA 

OSHC 1216, 1218 (No. 10-2659, 2015). The Commission also considers whether the employer 

has adequate work rules and training programs and has adequately supervised employees. 

Precision Concrete Constr., 19 BNA OSHC 1404, 1407 (No. 99-0707, 2001) (citing Pride Oil 

Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-0692, 1992)). 

In concluding that the Secretary established constructive knowledge here, the judge found 

that “reasonable diligence required Armstrong to inspect their run for significant changes in 

working conditions, such as the easily-observable 5-foot” decrease in distance between the steel 

wire and electrical line where R.M. was working when he contacted the energized line.9

 The judge 

also relied on testimony from Armstrong’s expert witness to find that “it would be important for 

the worker in the bucket to know about such a decrease in the distance . . . .” On review, 

9 As the judge recognized, the knowledge of a supervisor or foreman can be imputed to the 

company. See Jersey Steel Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), aff’d, 19 

F.3d 643 (3d Cir. 1994) (unpublished) (imputing constructive knowledge of supervisor to the 

company); see also Tampa Shipyards Inc., 15 BNA OSHC 1533, 1537 (No. 86-0360, 1992) 

(consolidated) (same). The judge, however, did not explicitly find that Hilderbrand, asthe foreman 

on this worksite, failed to exercise reasonable diligence and that this failure could be imputed to 

Armstrong. As our analysis demonstrates, this is contrary to the record and how the parties argued 

this aspect of the case.
7 

Armstrong maintains that Hilderbrand exercised reasonable diligence based upon his pre-work 

inspection and the related instructions he gave the crew. The company also disputes the 

Secretary’s claim that it lacked an adequate work rule to address the violative condition. For the 

following reasons, we agree with Armstrong that it exercised reasonable diligence and could not 

have known of the violative condition. 

Pre-Work Inspection and Instructions 

The judge agreed with the Secretary that Armstrong’s pre-work inspection should have 

included consideration of the “gap” between the electrical line and steel wire. Specifically, the 

judge faulted Hilderbrand’s inspection given his testimony that linemen typically work with the 

steel wire at shoulder level, which the judge found places “an employee’s head above the lower 

wire and within the 40-inch gap between [the wire and the] line[] and at least as close as 32 inches 

from the electrical [line], leaving little margin of error to maintain a minimum 24-inch clearance.” 

On review, Armstrong disputes the judge’s calculations as they relate to this project because, 

according to the company, the electrical line and steel wire were at least 57 inches apart at their 

nearest point and even if a lineman’s head were 32 inches from an energized electrical line, it 

would still be outside the required 24-inch MAD. 

Armstrong is correct that the purported 32-inch clearance between a lineman and an 

electrical line does not reflect the conditions present at the worksite. The minimum stipulated 

distance—57 inches at mid-span—exceeded the MAD, and at pole 17 near where the incident 

occurred, the stipulated difference was 125 inches. Hilderbrand testified that he was specifically 

able to estimate the clearance between the electrical line and steel wire at poles 17 and 18 because 

it was “visually apparent” and that the clearance was “at least eight feet” (96 inches) at the location 

of the incident, which was “a little more” than 50 feet from pole 17. Donald Tacik, former vicepresident of operations for Armstrong and current president of a sister company within the 

Armstrong corporate group, also testified that when he visited the worksite after the incident, “it 

was measured that we were 92 inches away from the electrical line at 66 feet, from Pole 17, which 

is where the accident occurred.” Thus, Hilderbrand reasonably assumed during his pre-work 

inspection that the clearance would not place R.M. within the MAD. See Tex. A.C.A., Inc., 17 

BNA OSHC 1048, 1051 (No. 91-3467, 1995) (“[T]he employer’s duty is to take reasonably

diligent measures to inspect its worksite and discover hazardous conditions . . . .”) (emphasis in 

original). 
8 

We also reject the Secretary’s claim on review that the foreman’s pre-work inspection was

inadequate because “when the employees drove the [run] before beginning their work, Mr. 

Hilde[r]brand was not even in the same truck as the rest of the crew[.]” Although Hilderbrand did 

drive the lead truck while Stroup and R.M. followed him in the bucket truck, the foreman made 

clear that after they drove the run, he and the crew took time to review the project’s blueprints10

and discuss the work to be done: 

I got the prints out and I showed [R.M.], and I even asked him, I said did you see 

the run on the way in, and [R.M.] and Stroup both clarified yes, they said look like 

a lot of trees. I said, yes, it [isn’t] the most pleasant run but we’ve done this before 

plenty of times, and I even explained to him, I said at the top of the hill is where 

the T-poles start. I said to be extra careful up there. 

Indeed, Hilderbrand further testified that “[R.M.] was in the bucket sitting there, [and he] got out. 

I laid the prints right on the bucket and showed him the run.” And Hilderbrand emphasized to the 

crew: “[W]hen we get to this next pole is where the cross arms start and the pine trees. I said to 

be careful through there.” Given these actions, it is insignificant that the crew rode in two vehicles 

rather than one during their pre-work inspection. As such, we find that Armstrong made “a 

reasonable effort to anticipate the particular hazards to which” R.M. was exposed at the worksite. 

Automatic Sprinkler Corp. of Am., 8 BNA OSHC 1384, 1387 (No. 76–5089, 1980). 

As for Hilderbrand’s instructions to the crew, we disagree with the judge that reasonable 

diligence required the foreman to inform R.M. of the decrease in distance between the electrical 

line and steel wire at poles 17 and 18. As Armstrong points out on review, the judge himself found 

that the change in distance was “easily-observable.” Moreover, the record supports Armstrong’s 

claim that its employees were experienced and trained to avoid electrical lines, including R.M., 

who as Armstrong points out had “a history of safe practices and was following company 

procedures and industry standards immediately preceding the incident.” See S.J. Louis Constr. of 

Tex., 25 BNA OSHC 1892, 1895 (No. 12-1045, 2016) (specificity of an employer’s instructions 

to an employee must be commensurate with the employee’s training and experience). 

10 Armstrong’s design and draft department creates these blueprints, which show where segments 

begin and end, the height of all attachments on the poles, as well as where Armstrong will attach 

its hardware. Tacik testified that the prints also “show the poles relative to streets, roads, [and] 

other major obstacles that have been identified in the fielding process, in the field engineer’s 

work.” 
9 

According to Hilderbrand’s undisputed testimony, R.M. had performed fiber-optic cable 

installation work for 23 years and had experience working in trees and on hilly terrain, both at 

Armstrong and as a tree trimmer before he joined the company. While Hilderbrand acknowledged 

that the terrain for this particular project was “bad,” he also testified that his crew, including R.M.,

worked among hills and trees most of the time. In addition to his extensive work experience, there 

is no dispute that R.M. had attended several Armstrong safety meetings and training sessions

regarding electrical hazards that directly communicated the approach distance requirements set 

forth in § 1910.268(b)(7), Table R-2. Hilderbrand was not only aware of R.M.’s training and 

experience when he gave the crew instructions after they drove the run but had himself attended 

some of the same training sessions as R.M. 

Moreover, Armstrong’s expert witness, James Orosz, an electrical engineer with 

experience in the telecommunications industry, testified that “R.M. was provided adequate 

training, both classroom type training and on-the-job training, [and] his record [shows] . . . that he 

was an experienced and accomplished, qualified communications employee.” According to Orosz, 

“the worker is trained to identify the hazard,” such as lines of different voltages, and “the two-foot 

approach distance would be the common” MAD for work in telecommunications. He further 

opined that Armstrong did not require R.M. to do anything he was not trained to do. Cf. N. Landing 

Line Constr. Co., 19 BNA OSHC 1465, 1472 (No. 96-0721, 2001) (supervisor knew employee 

was not a trained electrician yet permitted him to work near energized line). Although, as noted, 

the judge relied on Orosz’s testimony that the line clearance would have been “important” for R.M. 

to know, the expert qualified this statement, testifying that it is “not necessarily required, because 

regardless of the work, the worker has that two-foot approach distance, and must stay in the 

communications space.” Orosz further testified that it was R.M. who had the better vantage point 

to assess the change in distance between the electrical line and the steel wire, as a lineman’s 

knowledge of such a change comes from “observing the line itself, while the worker is an elevated 

position.” 

The record simply does not support the Secretary’s claim that information about the 

decrease in distance was critical for Hilderbrand to identify for R.M. given these circumstances. 

The Secretary presented no evidence or expert testimony to rebut Orosz’s opinion or otherwise 

show that R.M.’s training or work experience was insufficient to allow him to make this evaluation. 

See LJC Dismantling Corp., 24 BNA OSHC 1478, 1481-82 (No. 08-1318, 2014) (in arguing 
10 

employer should have discounted employee’s prior training and given more specific instructions, 

Secretary has the burden to show the employer should have been aware employee’s training was 

deficient and what instructions would have been necessary under the circumstances). And there

is no evidence R.M. had a poor safety history or previously failed to follow safety requirements 

such that Armstrong should have anticipated that R.M. would breach the MAD. See id. (absent 

evidence of employee failing to comply with safety requirements, Secretary has not demonstrated 

employer should have anticipated cited provision would be violated). 

In sum, R.M. was an experienced lineman, and Armstrong had adequately trained him to 

recognize and avoid the electrical hazards associated with his work. See MasTec N. Am., Inc., No. 

15-1574, 2021 WL 2311875, at *3 (O.S.H.R.C., Mar. 2, 2021) (finding supervisor, who was aware 

of lineman’s four years of experience, completed training, and history of no accidents, exercised 

reasonable diligence in relying on the lineman not to breach the MAD without properly insulating 

the energized line); S.J. Louis Constr., 25 BNA OSHC at 1895. 

Work Rule 

The Secretary claims on review that although Armstrong had “an informal rule requiring 

employees to stay forty inches away from energized lines,” the rule “does not account for 

accidental contact” and is merely a “general warning” insufficient for installing cable “in areas 

like [this one], where it is difficult to see the power lines.” Armstrong responds that its training 

program provides “unmistakably clear guidance that [employees] must remain at least 24 inches 

from high-voltage electrical lines.” We agree with Armstrong. 

The evidence shows that Armstrong “model[ed]” its work rule “on the applicable 

requirements.” El Paso Crane & Rigging Co., 16 BNA OSHC 1419, 1425 n.6 (No. 90-1106, 

1993). Armstrong’s safety manual states that employees must stay a minimum of 24 inches away

from electrical lines with a voltage range between 2Kv and 15Kv. In short, Armstrong’s work 

“rule reflects the requirements of the cited standard.” Stahl Roofing, Inc., 19 BNA OSHC 2179, 

2181 (No. 00-1268, 2003) (consolidated). Accordingly, we find that the rule is sufficient for 

purposes of reasonable diligence. See MasTec, 2021 WL 2311875, at *5. Cf. Pride Oil Well Serv., 

15 BNA OSHC at 1815 (finding safety program inadequate when employer “failed to formulate 

and implement adequate work rules and training programs” to ensure employee was informed of 

appropriate safety considerations). 
11 

CONCLUSION

For all of these reasons, we conclude that the Secretary failed to establish that Armstrong 

had knowledge of the violative condition. Accordingly, we reverse the judge and vacate the 

citation. 

SO ORDERED.

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

Amanda Wood Laihow 

Dated: September 24, 2021 Commissioner
Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457 

ACTING SECRETARY OF LABOR,

1

Complainant, 

v. OSHRC Docket No. 18-0034

ARMSTRONG UTILITIES, INC. d/b/a

ARMSTRONG CABLE SERVICES, 

Respondent. 

DECISION AND ORDER

Attorneys and Law firms 

Adam Lubow, Attorney, Office of the Solicitor, U.S. Department of Labor, Cleveland, OH, for 

Complainant. 

Michael S. Glassman, Attorney, Dinsmore & Shohl, LLP, Cincinnati, OH, for Respondent. 

JUDGE: John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

This case arose from an accident that resulted in severe electrical shocks and burns to an 

employee of Armstrong Utilities, Inc., d/b/a Armstrong Cable Services (“Armstrong”) when it was 

installing a new fiber optic cable on utility poles in Belleville, Ohio. Armstrong was subsequently 

cited2 by the United States Department of Labor’s Occupational Safety and Health Administration 

(“OSHA”) for an alleged “serious” violation of the Occupational Safety and Health Act of 1970 

(the Act), 29 U.S.C. §§ 651–678, for violating 29 C.F.R. § 1926.416(a)(1), one of the general 

requirements contained in Subpart K (Electrical) of the Construction standards, with a proposed 

1 Pursuant to Federal Rule of Civil Procedure 25(d), the Acting Secretary of Labor, is automatically 

substituted as the party in interest for the former Secretary of Labor. 

2 The Secretary of Labor delegated his authority under the Act to the Assistant Secretary of Labor for 

Occupational Safety and Health, who heads OSHA, and assigned responsibility for enforcement of the Act 

to OSHA. See 65 Fed.Reg. 50017 (2000). The Assistant Secretary has redelegated his authority to OSHA’s 

Area Directors to issue citations and proposed penalties to enforce the Act. See 29 C.F.R. §§ 1903.14(a) 

and 1903.15(a). 
2 

penalty of $12,675.00. After Armstrong timely contested the citation, the Secretary of Labor 

(“Secretary”) filed a formal complaint with the Commission alleging both a violation of 29 C.F.R. 

§1926.416(a)(1) and, in the alternative, a violation of 29 C.F.R. §1910.268(b)(7).3

 

The parties stipulated Armstrong is an employer engaged in a business affecting commerce 

within the meaning of section (5) of the Act, 29 U.S.C. § 652(5). (Compl. ¶ 1, Answer ¶4). The 

Court also concludes it has jurisdiction of this action under section 10(c) of the Act, 29 U.S.C. § 

659(c).

4

 A bench trial was held in Cleveland, Ohio. Pursuant to Commission Rule 90, after 

hearing and carefully considering all the evidence and the arguments of counsel, the Court issues 

this Decision and Order, which constitutes its final disposition of the proceedings.5

 For the reasons 

indicated infra, the Court concludes all the elements necessary to prove a serious violation of § 

1910.268(b)(7) have been established by the Secretary. Accordingly, the citation is AFFIRMED

as a serious violation and Armstrong is ASSESSED a civil penalty of $11,407.00. 

II. BACKGROUND

Armstrong is a telecommunications provider, primarily in rural areas. (Tr. 275.) Armstrong

regularly utilizes crews of four workers to install new fiber optic cable on overhead utility poles 

3 At the informal conference held by OSHA on January 3, 2018, Armstrong argued its activities did not 

constitute Construction, but rather General Industry, and therefore 29 C.F.R. §1910.268 should be the 

governing standard. (Sec’y’s Br. at 2-3.) The Secretary asserts the proper standard is §1926.416(a)(1) but 

that the record developed at trial establishes a violation under either standard. (Id. at 3.) 4 Armstrong contested jurisdiction on the grounds the Secretary failed to file a complaint within twenty 

days of receipt of Armstrong’s notice of contest and did not request an extension of time in advance of 

the date on which the complaint was due to be filed, “as required by 29 C.F.R §2200.5.” (Pretrial Order at 

¶4.) The Court finds no merit in this argument. The applicable version of Commission Rule 5 in effect at 

the time of the filing of the Complaint provided that “in exigent circumstances, an extension of time may 

be granted even though the request was filed after the designated time for filing has expired.” 29 C.F.R 

§2200.5 (2018). However, “the party requesting the extension must show, in writing, the reasons for the 

party's failure to make the request before the time prescribed for the filing had expired.” (Id.) The 

Secretary met this requirement when he asserted in his motion that “due to the lapse in government 

funding, the filing deadline was inadvertently missed.” More importantly, the requirement to file a 

complaint arises under the Commission’s procedural rules and is not jurisdictional. Asarco, Inc. El Paso 

Division, 8 BNA OSHC 2156 (No. 80-1028, 1980); Howard Electric Co., 11 BNA OSHC 1091 (No. 80-2111, 

1982). The Commission has long held a citation should not be dismissed for failure of a party to comply 

with procedural rules. Asarco, 9 BNA OSHC at 2163 (citations omitted). As the Commission held in Asarco, 

“the policy in law in favor of deciding cases on their merits generally prevails unless the party’s 

noncompliance results from its own contumacious conduct or results in prejudice to the opposing party.” 

Id., citing Duquesne Light Co., 8 BNA OSHC 1218 (Nos. 78-5034, et. al., 1980). 5 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall 

be deemed so.
3 

in rural areas. (Tr. 279.) One worker installs the cable, certain other wires, and hardware from an 

elevated bucket truck, while a second worker slowly drives the truck down the road. (Tr. 32-33.) 

A third worker flags traffic and watches for road obstructions. (Id.) The final member of the crew 

manages the spool of cable being installed. (Id.; see also Pretrial Order, Attach. C at ¶2.) 

The work crews install the cable on the utility poles in a three-stage process. (Tr. 289.) 

First, the crew installs hardware known as “attachers” on the utility pole. (Tr. 289-92.) The crew 

pulls a steel strand through the space where the cable will later go and attaches the steel strand to 

the attachers. (Id.) Second, the crew pulls the cable alongside the steel strand and attaches two 

wires together with metal boxes known as “quad blocks.” (Tr. 292-294, 333-34.) A quad block is 

a metal locking mechanism, which clamps to the steel strand and the fiber optic cable holding them 

in place. (Tr. 65.) Finally, the crew lashes the steel strand and the cable together. (Tr. 294-95.) 

Performing one phase of the three-stage installation process is referred to as a “run.” (Tr. 321.) 

Runs last for part or all of a workday and can be up to 3 miles long. (Tr. 335.) To string the cable 

during the second stage of the process the cable is attached to the elevated bucket using an 

attachment called a “becky” (a metal clamp with a hook attached to the end). (Tr. 331-33, 65.) The 

truck and the elevated bucket slowly pass down the road, pulling the cable along. (Tr. 333-34.) 

The worker in the bucket then attaches the quad blocks at certain distances to hold the cable close 

to the steel strand. (Id.) 

To pass through wooded areas during a run, workers throw a weighted ball through the 

trees. The weighted ball is attached to the becky by material known as “mule tape.” After throwing 

the ball through the wooded area, the worker in the bucket booms backwards out of the trees, the 

truck then drives slightly forward, and then booms back into the trees. The worker then grabs the 

mule tape to retrieve the weighted ball and manually pulls the becky and the cable through the 

trees. This process is repeated until the worker passes through the trees and the becky can again 

be attached directly to the bucket for direct pulling. (Tr. 334-35.) 

On July 12, 2017, a mobile crew of Armstrong employees was installing a new fiber optic 

cable on utility poles owned by Ohio Edison on Riggle Road in Belleville, Ohio. (Pretrial Order, 

Attach. C ¶1; see also Ex. C 11; Tr. 37, 152-153). Riggle Road is located in a rural area, and 

surrounded by hilly, treed terrain. (Tr. 25). The crew was composed of four employees: Foreman 

Brian Hilderbrand, who, when the incident occurred, was standing in the roadway monitoring work 

and watching traffic; Bob Stroup, who was driving the boom truck; Travis Reed, who was manning 
4 

the cable spool; and [redacted], who was stationed in the bucket of the aerial lift. (Id. at 32-33). In 

preparation for the July 12, work on Riggle Road, Hilderbrand surveyed Riggle Road, laid out the 

necessary road signs, and assessed the layout of the terrain. (Id. at 40). During the span of the run 

on Riggle Road, the poles transitioned from stacked I-Poles to T-Poles. (Id. at 39). 

Around 2:30 P.M. on July 12, [redacted] sustained electrical shock injuries while in the 

aerial lift truck after contacting the 7800-volt primary line that was outside the telecommunications 

space. (Tr. 33; see also Pretrial Order, Attach. C at ¶3). At the time of his injury, [redacted] was 

working between Poles 17 and 18, which were both T-Poles. (Id. at ¶4; see also Tr. 35). Prior to 

the incident, [redacted] was in the process of retrieving the weighted ball to string fiber optic cable 

to the pre-existing metal strand. (Tr. 33.) 

Two days later, Compliance Safety and Health Officer Corrine Majoros initiated an 

inspection. Significantly, Majoros did not take any measurements during the inspection of the 

approach distance between the primary electrical wire and the fiber optic cable for each of the 

relevant poles. According to measurements taken by Armstrong over three months later on October 

30, 2017, at Pole 17 the primary electrical wire was located 33 feet, 4 inches, above the ground 

and the fiber optic cable was located 22 feet, 11 inches above ground, a difference of 10 feet, 5 

inches between the two wires. Mid-span between Poles 17 and 18, the primary wire was located 

22 feet, 1 inch, above the ground and the fiber optic cable was located 17 feet, 4 inches, above the 

ground, a difference of four feet, 9 inches between the two wires. At Pole 18, the primary electrical 

wire was located 22 feet, 6 inches, above the ground and the fiber optic cable was located 17 feet, 

6 inches, above the ground, a difference of 5 feet between the two wires. (Pretrial Order, Attach. 

C at ¶5). The record does not indicate that the measurements taken three months later on October 

30 were an accurate indication of the actual measurements on the day of the accident. Therefore, 

the Court gives little weight to this proffered evidence. 

III. ANALYSIS

Under the law of the Sixth Circuit where the action arose,

6

 “[t]o establish a prima facie

violation of the Act, the Secretary of Labor must show by a preponderance of the evidence that 

6 Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation 

occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 

29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which 

the employer has its principal office. 29 U.S.C. § 660(b). The citation was issued in Ohio, which is in the 

Sixth Circuit. Armstrong’s corporate office is in Pennsylvania, which is in the Third Circuit. In general, 
5 

‘(1) the cited standard applies to the facts, (2) the requirements of the standard were not met, (3) 

employees had access to the hazardous condition, and (4) the employer knew or could have known 

of the hazardous condition with the exercise of reasonable diligence.’” Mountain States 

Contractors, LLC v. Perez, 825 F.3d 274, 279 (6th Cir. 2016) (quoting Carlisle Equip. Co. v. Sec'y 

of Labor & Occupational Safety, 24 F.3d 790, 792–93 (6th Cir. 1994) (internal citation omitted)). 

A. Alleged Violation

The Secretary asserts in the amended complaint and citation that Armstrong violated one 

of the general requirements of the construction standards found at 29 C.F.R § 1926.416(a)(1) or, 

in the alternative, the telecommunications standard found at 29 C.F.R. §1910.268(b)(7), when its 

employees working in proximity to a 7800-volt electric power circuit were exposed to 

electrocution and electrical shock injuries. (See Compl. at Ex. A.) The cited construction standard 

mandates that “[n]o 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 cited telecommunications standard mandates unless one of the enumerated 

exceptions applies (none of which Armstrong asserted), the “employer shall ensure that no 

employee approaches or takes any conductive object closer to any electrically energized overhead 

power lines and parts than prescribed in Table R-2[.]” 29 C.F.R § 1910.268(b)(7). 

1. Whether Cited Standards Apply to the Facts

“The [Construction] standards . . . apply . . . to every employment and place of employment 

of every employee engaged in construction work.” 29 C.F.R. § 1910.12(a). “Construction work” 

is defined in §1910.12 as “work for construction, alteration, and/or repair, including painting and 

decorating.” 29 C.F.R. § 1910.12(b). The telecommunications standards “apply to the work 

conditions, practices, means, methods, operations, installations and processes performed at . . . 

telecommunications field installations, which are located outdoors or in building spaces used for 

“[w]here it is highly probable that a Commission decision would be appealed to a particular circuit, the 

Commission has . . . applied the precedent of that circuit in deciding the case—even though it may differ 

from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) 

(citation omitted). Since both parties cited to Sixth Circuit precedent in their briefs, it is highly probable 

that this decision would be appealed to that circuit. Therefore, the Court applies the precedent of the 

Sixth Circuit in deciding this case.
6 

such field installations.” 29 C.F.R. §1910.268(a)(1). The Secretary argues the work conducted by 

Armstrong’s crew was construction work. (Sec’y’s Br. at 8.) Armstrong argues that the 

construction standard “is wholly inapplicable to Armstrong's telecommunications workers 

engaged in ‘field work’ as specifically defined in the telecommunications standard[.]” (Resp’t’s 

Br. at 23.) 

The Secretary argues “[t]here is scant precedent under Section 1910.268 whether work 

performed in the telecommunication industry constitutes construction work.” (Sec’y’s Br. at 10.) 

According to the Secretary, “[t]he only cases discussing this particular issue with any particularity, 

Pac. Gas & Elec. Co., 2 O.S.H. Cas. (BNA) 1692 (O.S.H.R.C. 1975) and Gulf States Utilities Co., 

12 O.S.H. Cas. (BNA) 1544 (O.S.H.R.C. 1985) turned on whether replacement of wires and 

structures constituted ‘improvement’ or ‘maintenance.’ ” (Id.) The Court finds no merit in the 

Secretary’s argument since both cited cases involved performing work on electric power lines, not 

telecommunications lines. 

However, in a Commission case actually on point, United Telephone Company of the 

Carolinas, which implicated both the construction and telecommunications standards, the 

Commission held that at the time the citation in that case was issued, “the erection and removal of 

telephone poles and the transfer of lines was considered ‘construction work’ and subject to all 

pertinent construction standards.” United Tel. Co. of the Carolinas, 4 BNA OSHC 1644, 1646 

(No. 4210, 1976). Subsequent to the issuance of the citation in that case the Secretary adopted the 

telecommunications standard, and therefore, the Commission held “erecting and removing 

telephone poles and transferring lines were reclassified at § 1910.268(a)(1) as ‘field work’” and 

“the condition for which Respondent was cited is now regulated by § 1910.268(b)(7) and § 

1910.268(j)(4)(i) and (ii).” Id. 

In adopting the telecommunications standard, the Secretary explained in the preamble that 

“they will prevail over any general standards in Part 1910” if they “contain standards which apply 

to unique employment conditions in telecommunications[.]” 40 Fed. Reg. 13,437 (1975). Thus, 

the Commission “interpret[ed] the Secretary’s actions as preempting the applicability of certain 

general construction standards by adopting standards specifically drafted for the 

telecommunications industry.” United Telephone, 4 BNA OSHC at 1647. 

The telecommunications standard defines “field work” as “the installation, operation, 

maintenance, rearrangement, and removal of conductors and other equipment used for signal or 
7 

communication service, and of their supporting or containing structures, overhead or underground, 

on public or private rights of way, including buildings or other structures.” 29 C.F.R. 

§1910.268(a)(1). Armstrong engages in the telecommunication industry, providing digital cable

services to residential and commercial customers, including television, telephone, and high-speed

internet services. To provide these services, the company's operations included field work 

installing fiber optic cable on existing utility poles owned by other utility companies. 

Therefore, the Court concludes the cited telecommunications standard prevails over the 

cited construction standard. Applying United Telephone, the condition for which Armstrong was 

cited was reclassified as field work in §1910.268(b)(7) and can no longer be considered 

construction work under § 1910.12(a). The Court concludes the cited telecommunications standard 

did apply, but the cited construction standard did not apply, and the portion of the amended citation 

asserting a violation of the construction standard must be vacated. 

2. Whether Cited Telecommunication Standard Was Violated

This standard requires that “[t]he employer shall ensure that no employee approaches or 

takes any conductive object closer to any electrically energized overhead power lines and parts 

than prescribed in Table R-2[.]” 29 C.F.R. §1910.268(b)(7). The parties stipulated this case 

involved a 7800-volt primary line. As referenced in the standard, Table R-2 provides, for voltages 

between 2,000 and 15,000 volts, the minimum approach distance is 24 inches. 29 C.F.R. §1910 

Subpart R, Table R-2. The Secretary argues, and the Court agrees, as “[redacted] actually came 

in to contact with the electrical wire,” he was clearly less than 24 inches away from the wire. 

(Sec’y’s Br. at 16.) Therefore, the Secretary has established Armstrong violated the 

telecommunications standard since the approach distance was closer than 24 inches. 

3. Whether Employees Had Access to Hazardous Condition 

The hazard was the 7800-volt electrical wire. Armstrong’s employees were working in a 

vehicle-mounted bucket lift that had the ability to contact the overhead electrical wire and 

[redacted] actually made physical contact with the electrical wire. There can be no dispute that 

[redacted] was exposed to the hazard. Therefore, the Secretary has established employee access to 

the hazardous condition. 

4. Whether Armstrong Knew or Could have Known of Hazardous 

Condition With the Exercise of Reasonable Diligence
8 

The fourth and final condition for a prima facie violation of the Act requires that the 

employer knew of the hazardous condition or could have known through the exercise of reasonable 

diligence. Mountain States Contractors, LLC v. Perez, 825 F.3d at 283–84 (citing Carlisle Equip. 

Co., 24 F.3d at 792–93). The knowledge of a supervisor or foreman, depending on the structure of 

the company, can be imputed to the employer. Id. (citations omitted). The Secretary alleges 

Armstrong, “with the exercise of reasonable diligence, could have known the assigned work would 

bring [redacted] close to the live electrical wire and therefore it could have taken the necessary 

measures to ensure the hazard was eliminated.” (Sec’y’s Br. at 17-18.) The Court agrees. 

There is no dispute the gap between the two wires decreased by more than 5 feet between 

the two poles and was several feet shorter at the location of the incident than it had been at the 

previous pole. (Pretrial Order, Attach. C at ¶5; see also Tr. 301, 308, 399-400.) Armstrong’s expert 

opined it would be important for the worker in the bucket to know about such a decrease in the 

distance between the telecommunications wires and the electrical wires. (Tr. 430.) 

Foreman Hildebrand admitted he and his crew typically worked with the wires at shoulder 

level. (Tr. 385.) Work in such proximity would place an employee’s head above the lower wire 

and within the 40-inch gap between lines and at least as close as 32 inches from the electrical wire, 

leaving little margin of error to maintain a minimum 24-inch clearance.” (Id.) The Court agrees 

with the Secretary that reasonable diligence required Armstrong to inspect their run for significant 

changes in working conditions, such as the easily-observable 5-foot change in wire distance 

between Poles 17 and 18. With the exercise of reasonable diligence on July 12, 2017, Armstrong 

could have known of this hazard. Therefore, the Court concludes the Secretary established that 

Armstrong possessed knowledge of the violative conditions. Thus, the Court concludes the 

Secretary has established a prima facie violation of the Act as it relates to the cited 

telecommunications standard. 

B. Serious Violation 

A serious violation exists “if there is a substantial probability that death or serious physical 

harm could result from a condition which exists[.]” 29 U.S.C. § 666(k). “To find a serious 

violation the Secretary need not show that an accident was probable, only that an accident was 

possible.” Mayflower Vehicle Sys., Inc. v. Chao, 68 F. App'x 688, 693 (6th Cir. 2003) (citation 

omitted). Here, the telecommunications standard violation was a serious one since there was a 
9 

substantial probability that death or serious physical harm could result from exposure to 

electrocution and electrical shock injuries. 

C. Affirmative Defense7

“In the Sixth Circuit, in order to successfully assert [the unpreventable employee 

misconduct] defense, an employer must show that it has a thorough safety program, it has 

communicated and fully enforced the program, the conduct of the employee was unforeseeable, 

and the safety program was effective in theory and practice.” Danis-Shook Joint Venture XXV v. 

Sec'y of Labor, 319 F.3d 805, 812 (6th Cir. 2003). Further, “to be effective, the safety program 

must be designed such that, if followed, it would prevent the violations at issue.” Id. 

Whether Armstrong Had a Thorough Safety Program

Armstrong had a comprehensive 88-page safety manual that covered a variety of safety 

topics including, working aloft, aerial lift safety, personal protective equipment, electrical safety, 

concern for safety, hazards in the field, and vehicle safety. (Ex. R-1 at 5-6.) The electrical safety 

portion of the safety manual expressly stated that “no employee shall approach or take any 

conductive object closer to any electrically energized overhead power lines than” the distances 

established in Table R-2 of § 1910.268, which is listed within the policy. (Id. at 49; see also, Tr. 

133, 173-174, 209, 218-220, 238). Armstrong had a thorough safety program. 

Whether Armstrong Communicated the Safety Program 

At the beginning of their employment, Armstrong employees attended a New Employee 

Safety Orientation, which covers a range of topics including a review of the Armstrong safety 

manual and electrical safety training. (Tr. 221.) Armstrong’s safety program covered topics such 

as recognizing different types of power lines, recognizing voltages, conductivity and insulation, 

voltage testing, and respecting minimum distances from energized lines. (Tr. 89, 218-221, 238-

239; see also Ex. R2). Armstrong’s employees also had access to safety policies and safety training 

on its intranet site. (Tr. 230). Armstrong also required employees to attend Climbing school, boot 

camp, annual bucket truck training,8 monthly safety meetings9 and job specific safety training, 

7 Although Armstrong raised numerous affirmative defenses in its Answer, it only preserved in the Pretrial 

Order the “isolated employee misconduct defense” and lack of jurisdiction. 8 Bucket truck training was required before an employee can operate a bucket truck (aerial lift) and was 

renewed on an annual basis. (Id. at 221 ). In bucket truck training, employees were required to review the 

safety manual and related policies. (Id.) 

9 Monthly safety meetings rotate through a variety of topics, including driving safety, sprain and strain 

prevention, hazcom, and electrical safety. (Tr. v. 1, 22 J-223 ). Electrical safety training is also covered in 
10

which all covered electrical safety training, including maintaining safe distances from energized 

power lines. (Ex. R-5). Additionally, Armstrong brought in outside training on electrical safety 

through presentations by power companies and industry produced-videos. (Tr. 236-237). 

[redacted] and Hilderbrand were long-term employees, who attended numerous trainings

on electrical safety and safety awareness, including annual bucket truck training. (Tr. 238-239; see 

also Ex. R-2; Ex. R-4; Ex. R-6 at 1-9, 20, 29).10 [redacted] and the other aerial lineman received 

annual training on electrical safety, including review of the safe approach distances to electrical 

power. Several of the training sessions reviewed the safety manual or recited the Armstrong safety 

manual's rule on maintaining safe distances to overhead power lines. (Ex. R-2 at 11; Ex. R-4 at 26; 

Ex. R-6 at 2-3, 30; see also Tr. 85-86, 221.) Armstrong effectively communicated its safety 

program. 

Whether Armstrong’s Safety Program Was Effective in Theory and Practice

Armstrong had an effective safety policy in theory since its program expressly prohibited 

employees from approaching or taking any conductive object closer to any electrically energized 

overhead power lines than the distances established in Table R-2 of § 1910.268, which is listed 

within the policy. There is no evidence the electrical safety portion of its safety manual had ever 

been violated prior to the accident and Supervisor Hilderbrand testified he never observed 

employees within 24 inches of an overhead high-voltage line. (Tr. 356.) Armstrong had an 

effective safety policy in practice.

Whether Armstrong’s Safety Program Was Designed Such That, if Followed, It Would 

Prevent Violation at Issue 

Armstrong maintained a well-established work rule regarding the minimum proximity to 

which an employee is permitted to work near different types of power lines, which, if followed, 

would have prevented the incident for which Armstrong was cited. Therefore, Armstrong’s safety 

program was designed such that, if followed, it would prevent the violation at issue. 

Whether Conduct of [redacted] Was Unforeseeable 

[redacted] was an employee with a history of safe practices and therefore Armstrong 

argues, and the Court agrees, it had no reason to suspect [redacted] would not comply with its 

monthly meetings, sometimes as a specific topic and sometimes within other topics, such as awareness and 

hazard recognition. (Id.)

10 Hilderbrand, [redacted], and Stroup all had over 20 years of experience working in the aerial cable 

installation group at Armstrong. Reed had 6 years of experience. (Id. at 49-55).
11

safety rules on the day of the accident. Therefore, the Court concludes [redacted]’s conduct was 

unforeseeable.

Whether Armstrong Fully Enforced Program

Site foremen were responsible for ensuring that safety policies were followed and 

conducted safety inspections on a regular basis. (Tr. at 214-215). In addition to the foreman 

working at a site as part of the crew, front-line managers, mid-level managers, and uppermanagement also went out into the field to look for compliance with safety requirements and to 

look for violations. (Tr. 214-215.) However, while Armstrong proffered testimony that 

management conducted unannounced site visits and disciplined employees for infractions (id.), the 

Secretary argues, and the Court agrees, Armstrong did not introduce any documentation showing 

it effectively enforced the rules when violations were discovered. 

In Precast Servs., Inc., 17 BNA OSHC 1454 (No. 93-2971, 1995), the Commission noted 

that adequate enforcement is a critical element of the defense. Therefore, “[t]o prove that its 

disciplinary system is more than a ‘paper program,’ an employer must present evidence of having 

actually administered the discipline outlined in its policy and procedures.” Id. at 1455. Thus, in 

Rawson Contractors, Inc., 20 BNA OSHC 1078, 1081 (No. 99-0018, 2003), the Commission held

an employer's unpreventable employee misconduct argument “fails without any specific evidence 

to corroborate its assertion that employees were disciplined.” Here, as in Rawson, although 

Armstrong asserted that employees were disciplined, its employee misconduct defense fails since 

it proffered no specific evidence to corroborate this assertion. 

IV. PENALTY DETERMINATION

When the citation was issued on December 6, 2017, the maximum statutory penalty for a 

serious citation was $12,675.00.11 See Department of Labor Federal Civil Penalties Inflation 

11 As originally written, the Act mandated that “[a]ny employer who has received a citation for a serious 

violation . . . shall be assessed a civil penalty of up to $7,000 for each such violation.” 29 U.S.C. §666(b). 

However, on November 2, 2015, Congress enacted the Federal Civil Penalties Inflation Adjustment Act 

Improvements Act of 2015, Public Law 114-74, sec. 701 (Inflation Adjustment Act), which further amended 

the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt 

Collection Improvement Act (collectively, the “Prior Inflation Adjustment Act”), to improve the 

effectiveness of civil monetary penalties and to maintain their deterrent effect. The Inflation Adjustment 

Act required agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” 

adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation, 

no later than January 15 of each year.
12

Adjustment Act Annual Adjustments for 2017, 82 Fed. Reg. 5373, 5382 (Jan. 18, 2017); 29 C.F.R.

§1903.15(d)(3)(2017). The Secretary proposed the maximum penalty for the violation. 

Under Section 17(j) of the Act, the Commission is empowered to “assess all civil penalties 

provided in this section, giving due consideration to the appropriateness of the penalty with respect 

to the size of the business of the employer being charged, the gravity of the violation, the good 

faith of the employer, and the history of previous violations.” 29 U.S.C. § 666(j). “These factors 

are not necessarily accorded equal weight; generally speaking, the gravity of a violation is the 

primary element in the penalty assessment.” J.A. Jones Constr., 15 BNA OSHC 2201, 2216 (No. 

87-2059, 1993) (citing Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992)). The 

Court concludes the violation was properly classified at the highest gravity (high severity and 

greater probability) since the electrocution injury that resulted from [redacted]’s contact with a 

7800-volt electrical wire could result in death or, as it did here, serious physical injury. 

As to good faith, the Court finds a 10% reduction is appropriate, based upon Armstrong’s 

extensive safety program, which included a comprehensive 88-page Safety Manual that covered a 

variety of safety topics including electrical safety. With respect to the size of the business, neither 

party provided evidence of the number of employees Armstrong had at the time of the accident 

and therefore, Armstrong is not entitled to a penalty reduction for size. Further, Armstrong was 

not entitled to a credit based upon its lack of history of previous violations since the company had 

not been inspected in the previous five years. Thus, giving due consideration to the size of the 

business, the gravity of the violation, good faith, and history, the Court finds the appropriate civil 

penalty to be imposed is $11,407.00. Accordingly, 

V. ORDER

IT IS HEREBY ORDERED THAT the citation is VACATED as to the alleged violation of 29 

C.F.R. §1926.416(a)(1), is AFFIRMED as a serious violation of 29 C.F.R. §1910.268(b)(7), and 

Armstrong is ASSESSED and directed to pay to the Secretary a civil penalty of $11,407.00.12

SO ORDERED. /s/ 

JOHN B. GATTO, Judge 

Dated: September 16, 2019 

Atlanta, GA

12 See section 17(l) of the Act, which mandates that civil penalties owed under this Act “shall be paid to 

the Secretary for deposit into the Treasury of the United States[.]” 29 U.S.C. §666(l).