Petitioner Concrete Construction Company ("petitioner" or "the Company") brings this direct action pursuant to the Occupational Safety and Health Act of 1970 ("the Act"), 29 U.S.C. 660, seeking review of the decision of the Occupational Safety and Health Review Commission ("the Commission") which, in turn, affirmed the decision and order of an administrative law judge ("ALJ"). The ALJ upheld a citation and proposed penalty issued by the Secretary of Labor against petitioner for serious violations of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), and of 29 C.F.R. 1926.550(a)(15)(i) for failing to maintain a minimum clearance of ten feet between a backhoe and energized overhead electrical lines, and of 29 C.F.R. § 1926.550(a)(15)(iv), which requires designation of a person to observe clearance and give timely warning. The Secretary charged that petitioner assigned the designated observer additional tasks which prevented him from discharging his observer function effectively. For the reasons that follow, we affirm the Commission's decision in all respects.
