Secretary of Labor v. The L.E. Myers Co. shows the importance of adequate training, experience and equipment when working near energized lines. This matter arises from an unfortunate and tragic work-place accident involving a journeyman lineman for an electrical utility sub-contractor, L.E. Myers Co. (LEM) in Florida. On November 15, 2019, LEM assigned a four-man crew to transfer electrical distribution lines from an existing utility pole to a new utility pole. Due to the live electrical current, OSHA requires employers to determine the minimum approach distance (“MAD”) before its employees work near energized lines at a worksite. The MAD is the closest distance an employee may approach an energized or grounded object without taking specific safety precautions. At this site, the MAD was determined to be 2 feet, 2 inches.
The four-man crew arrived at the worksite around on the incident date and began to discuss their respective assignments. The crew consisted of the Foreman, two journeyman lineman (inclusive of the Decedent), and an apprentice. The Foreman conducted a pre-job briefing and had everyone sign a Daily Pre-Job Brief document. This document listed the steps for this assignment and included a checklist of the tools required. The document stated the assignment as “Move wires to new pole and hang arms and mac” and had a checklist for “PPE/Tools Required”. The Foreman checked of all tools on the required list including rubber insulating gloves and rubber insulating sleeves. The crew had two bucket trucks and one smaller “backyard machine”. The apprentice and Decedent were in these buckets, the JL in the backyard machine and the Foreman on the ground to observe.
The incident occurred when the Foreman called to the Decedent to lower his bucket to hand him a mac (a flexible wire with clamps at either end, used to bypass an area of an energized line so work can be done in the bypassed area). When the Foreman handed the mac to the Decedent, he did not notice whether or not the Decedent was wearing rubber insulating sleeves. The interaction was a couple of seconds and Decedent immediately raised his bucket back up to the height needed to determine if the mac length was acceptable. The Foreman, as the only eyewitness testifying, stated after he gave the Decedent the mac, the Decedent elevated his bucket and screamed down something along the lines of “that’ll work.” As the Foreman started to walk away to collect other macs just in case, the Foreman heard sizzling, popping and the jerking of the bucket. He looked up to realize Decedent was slumped over in his bucket. After cutting the mac, it was safe for Decedent to be lowered and receive medical attention. However, the electrocution resulted in Decedent’s death. The Decedent was found to be only wearing his rubber gloves, but not his rubber insulating sleeves. Two of OSHA’s compliance officers investigated the scene that same day, taking photos and interviewing individuals, but they did not conduct any measurements or simulations. LEM’s Foreman was discharged in December 2019. OSHA eventually cited LEM for three serious violations arising from the incident.
The ALJ found the Foreman’s testimony regarding the rubber insulating sleeve was sufficient as the Foreman was close enough to detect, with reasonable diligence, whether the Decedent was wearing the sleeve or not. In terms of assignment, the Foreman testified that he only wanted the Decedent to get close enough to measure the mac, which did not require the Decedent to breach the MAD. The Foreman explained that the task could have been done by not elevating the bucket to the height, however it probably would have been more difficult. He did not ask for the Decedent to install the mac, as installation would require all three crewmembers in position.
Item 1 of the Citation pertained to the Decedent not being trained or competent in the MAD skills and techniques in order to maintain a safe distance. Although recordkeeping of employment records is one way to keep track of an employee’s demonstrated proficiency, the ALJ here found that in fact the Decedent did have adequate training and proficiency by the evidence submitted and vacated this portion of the citation. Although, the Decedent had only worked with LEM for about two months, he had over 15 years of prior experience (via the apprenticeship and journeyman system) in his previous jobs, which required MAD training. Upon hiring, LEM provided the Decedent a New Hire Orientation Outline, which included the MADs and Decedent had received a copy of the Safety Manual which also addressed MADs. Furthermore, LEM’s Safety Engineer testified how they provide orientation and safety training for newly hired employees, periodic safety training, crew visits and onsite audits. Here, the Safety Engineer had interviewed the Decedent during his orientation to determine his knowledge and understanding of safety-related work practices, including MADs. Moreover, LEM’s supervisors including the Foreman were trained to closely observe new hires to ensure their proficiency, including on safety.
The other items of the Citation were based upon Decedent breaching the MAD without appropriate precautions and failures by LEM to ensure that no employee approaches or takes a conductive object closer to the exposed energy parts than the established MAD. LEM even had a “cradle to cradle policy” that stated that both the rubber insulating gloves and sleeves were to be worn when working on energized equipment on an aerial platform. However, the Foreman’s instruction to the Decedent was to perform work at a height not within the MAD. Only when the Decedent elevated his bucket to the height of the distribution lines and connected one end of the mac to the line did he breach the MAD. Since this occurred within mere seconds, the ALJ found that this fleeting moment did not establish a failure on the part of the Foreman to exercise reasonable diligence and supervision. The Foreman had worked with the Decedent for two months prior to the incident and never noticed any conduct that would alert him to heightened monitoring of Decedent’s safety practices. Therefore, these items of the Citation were also vacated.
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