      [NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 99-1600

                MASS. ELECTRIC CONSTRUCTION CO.,

                           Petitioner,

                               v.

         OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

                           Respondent.


         ON PETITION FOR REVIEW OF A FINAL ORDER OF THE
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


                             Before
                       Selya, Circuit Judge,
                  Coffin, Senior Circuit Judge,
                    and Stahl, Circuit Judge.



     Kieran B. Meagher for petitioner.
     Terry Parker DeLeon, Attorney, U.S. Department of Labor, with
whom Henry L. Solano, Solicitor of Labor, Joseph M. Woodward,
Associate Solicitor for Occupational Safety and Health, and Bruce
Justh, Counsel for Appellate Litigation, were on brief for
respondent.



                        February 15, 2000
       COFFIN, Senior Circuit Judge. Mass. Electric Construction Co.

("Mass.    Electric")      petitions     for   review   of   an   administrative

decision finding that the company violated a federal electrical

safety standard, resulting in an employee injury.                    The company

asserts that it should not be cited or fined because the episode

resulted from unforeseeable employee misconduct, and it contends

that   the     administrative     law    judge’s   (ALJ)     conclusion   to    the

contrary fails to accurately reflect the record.                  After carefully

reviewing       the   pertinent     materials,     including      audiotapes    of

interviews with company employees, we have concluded that the ALJ’s
decision was adequately supported.

       We briefly summarize the factual background, which is fully
detailed in the ALJ’s thorough opinion. The incident underlying
this    case    occurred    while    employees     of   Mass.      Electric    were

installing a neon sign at a parking garage in Rhode Island.                     The
job foreman, Michael McCormick, suffered serious burns from an
electrical explosion that occurred as he worked on an energized

circuit.       It is undisputed that neither McCormick nor an employee
assisting him was using proper insulation or other appropriate
protective equipment for working on a live circuit, in violation of

29 C.F.R. § 1926.416(a)(1).             The company responded to a citation
from the Occupational Safety and Health Administration (OSHA) with
the affirmative defense of "unpreventable employee misconduct,"

asserting that McCormick acted against company policy and his
supervisor’s instructions by failing to consult with the supervisor

and obtain proper safety gear before working on the live circuit.

                                         -2-
The ALJ rejected the defense, finding that the company did not

adequately enforce its safety program by "insisting upon safe

methods and practices at all times" and that it "could have
prevented the violation with the exercise of reasonable diligence."

Opinion at 8.      The ALJ relied, inter alia, on interviews with

McCormick and his supervisor, Stephen Smith, that were conducted
shortly after the accident happened, and he discounted and termed

"contradictory" testimony more favorable to the company that was

given by the two men at a later hearing.      The Occupational Safety

and Health Review Commission denied discretionary review, and Mass.

Electric then sought judicial review.

     The company assails the ALJ’s judgment on three fronts.          It

contends that the judge (1) clearly erred in finding that the Mass.
Electric witnesses’ testimony at the hearing was "starkly at odds"

with their prior statements; (2) lacked record support for his

conclusion that the company could have taken steps to prevent the
accident;1   and   (3)   abused   his   discretion   and   tainted   the

proceedings by allowing the Secretary of Labor’s main witness to

remain in the courtroom during presentation of Mass. Electric’s

defense, and thereafter permitting the witness to use "unverified

hearsay" to testify in rebuttal.

     We review a Commission decision "to determine whether its

factual findings are supported by substantial evidence in the

     1
       This contention essentially embraces the first one; Mass.
Electric contends that the ALJ’s rejection of the employee
misconduct defense is not supported by record evidence at least in
part because he wrongly characterized McCormick and Smith’s various
statements as inconsistent.

                                  -3-
record, 29 U.S.C. § 660(a), and whether its legal conclusions are

`arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law[.]’ 5 U.S.C. § 706(2)(A)."                     Reich v.
Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 2 (lst Cir. 1993).

     We first address the challenge to the ALJ’s factual findings.

The chief point of contention is whether McCormick was given the
discretion in a phone conversation the day before the accident to

work on the energized circuit without first calling Smith to obtain

proper protective equipment. Mass. Electric contends that the

statements made by McCormick and Smith in taped interviews with an

OSHA compliance officer and their later testimony at the Commission

hearing   prove      that   the   two    men     anticipated   another    phone

conversation after McCormick examined the electrical panel to
determine if he could work on it live.                   As we shall explain,

however, the taped interviews suggest that McCormick acted in a

foreseeable way when he did the work without first contacting
Smith.    See P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 109

(lst Cir. 1997) (to establish employee misconduct, "`an employer

must do   all   it    feasibly    can    to    prevent   foreseeable   hazards,

including dangerous conduct by its employees’") (quoting General

Dynamics Corp. v. OSHRC, 599 F.2d 453, 458 (lst Cir. 1979)).

     There is no doubt that the hearing testimony depicts a much

more explicit conversation between McCormick and Smith than do the

statements taken from the two men a year earlier in interviews with

the compliance officer.           At the hearing, Smith testified that

McCormick was "[a]bsolutely not" authorized to work on the panel


                                        -4-
without getting back to Smith for the dual purpose of letting Smith

know how McCormick wanted to proceed and – if he determined he

could work on the circuit live – to request appropriate safety
equipment. McCormick, too, testified that Smith told him, "just go

back and take a look at it and see what you think and then give me

a call."
     The statements given by both men to the compliance officer

just after the accident, however, suggest that more was left to

McCormick’s discretion than simply the preliminary decision about

whether to work with the power on or off.     A few responses are

telling:

     Compliance officer: "Did he say to call me and let me
     know before you do anything or was it basically left up
     to your . . . ?"
     McCormick: "I think it was left up to my judgment."

                         —

     Smith: "I said if you’re not comfortable with it get back
     to me and let me know, let me know what you need to do it
     if you’re comfortable, and you want to do it like that.
     . . ."

     Compliance officer: "Okay. So if he felt comfortable
     doing it like that and he wasn’t . . . he didn’t need to
     get back to you he could just go . . ."

     Smith: "Use your own judgment."


     The impression that it was left to McCormick’s discretion not

only whether to work on the panel live but also what safety

measures to take was given by other portions of the interview

statements as well.   Smith, for example, stated that the company

provided safety equipment for working on an energized circuit,


                               -5-
noting that "it’s all available to them if they ask for it."          He

also observed, "I guess he felt the way he was doing it he was

comfortable   with."    McCormick’s    responses   also   reflected   an
assumption that he had discretion in choosing how to proceed.         He

noted that workers frequently use the "material at hand," and, in

this case, he felt the cardboard that was available to insulate the
parts of the panel would do the job.      He had seen that done, he

said, "many times."    He also stated that he sometimes wears gloves

when doing a job like this, and sometimes does not, even though

gloves are required by company policy.2

     In addition, although McCormick stated that his decision to go

ahead and do the job was made on the "spur of the moment," the

evidence shows that he did not act hastily.        He took the time to
sharpen his knife, insulate his tools, and place the cardboard

between sections of the distribution panel.          In so doing, he

exercised his judgment and took deliberate steps that could be
understood as intended to satisfy the instructions given to him by

Smith, which even Mass. Electric acknowledges were (1) to ascertain

if you can do this job without shutting off the power, and (2) if

you can, to let me know what safety equipment you need. Neither

McCormick nor Smith reported during their interviews a direct

instruction not to proceed until McCormick obtained the specific

protective gear required by company and OSHA policy.3            It is

     2
       He explained that he chose not to wear gloves this time
because the work was delicate.
     3
       We note Mass. Electric’s claim that the ALJ credited an
erroneous statement by the compliance officer that McCormick had

                                 -6-
therefore reasonable to conclude from a reading of McCormick’s and

Smith’s interview accounts that the steps McCormick took were all

he felt he "needed" to ensure safety, thereby satisfying Smith’s
instructions,        notwithstanding       company   policy.      In    sum,    both

McCormick’s and Smith’s interviews reasonably can be taken as

evidence that the company permitted McCormick to forge ahead if he
thought he could do the work safely without using the protective

equipment that is conceded to be mandatory.4
          We recognize that the interview statements also could be

construed to support an understanding on the part of Smith that

McCormick,     in    accordance     with    official   company    policy,      would

request the proper safety equipment before working on a live panel.

It is for that reason that we disagree with the ALJ’s depiction of
the   interviews          and   later   testimony    as     "starkly    at    odds."

Nonetheless,        the    ALJ’s   determination     that   McCormick    at    least

impliedly was given authority to proceed without the specific



told the officer that he (McCormick) had been given an explicit
okay to "go ahead and install" the circuit breakers while the panel
was charged. We agree that the interview statements were not this
explicit, but there is no indication that the ALJ relied on the
compliance officer’s testimony rather than on the actual taped
interviews, which he quoted later in his opinion. Presumably, the
ALJ understood that the compliance officer’s testimony contained
inferences based on what he had heard.
      4
       In its reply brief, Mass. Electric emphasizes that none of
Smith’s references to "use your own judgment" constituted
permission to McCormick to work on the panel without safety
equipment. This contention does not necessarily take the company
to the result it desires. McCormick did take safety measures, but
they did not comply with federal regulations. The ALJ concluded
that Smith left up to McCormick the nature of the precautions he
would take, and Smith’s and McCormick’s interviews permit an
inference that this approach was not unique to this job.

                                         -7-
equipment is supported by the interviews.             And we cannot fault the

judge’s discrediting of testimony at the hearing that minimized the

scope of McCormick’s discretion; that testimony was given a year
after the accident, when all concerned presumably were more aware

of the legal significance of the McCormick-Smith conversation.

       If the record had established unequivocally that McCormick had
no authority to proceed until after he called Smith, either to plan

a power shutdown or to obtain the required protective equipment,

the company’s employee misconduct defense would be more powerful.

While the company’s reliance, as found by the ALJ, on the usually

good    judgment   of    an    experienced    electrician     may   have     been

reasonable, it was not in compliance with federal regulations.                 We

therefore must credit the ALJ’s conclusion that McCormick’s failure
to take proper safety measures could have been avoided with more

diligent supervision and enforcement of company policies, negating

Mass. Electric’s employee misconduct defense.                See Gioioso, 115

F.3d at 109-10 ("Even if an employer establishes work rules and

communicates them to its employees, the defense of unpreventable
employee misconduct cannot be sustained unless the employer also

proves that it insists upon compliance with the rules and regularly

enforces them.").

       We touch only briefly on Mass. Electric’s other claim, that

the    ALJ   improperly       allowed   rebuttal   testimony     from      OSHA’s

compliance officer.        The ALJ rejected this claim as moot on the

ground   that   the     disputed    testimony   was    not   material   to    the

disposition of the case.           Our review gives us no reason to think


                                        -8-
the testimony played any role in the judge’s decision. Because any

error therefore would be harmless, we decline to consider the

matter further.
     The petition for review is denied.




                               -9-
