Docket No. 855

BUTLER LIME AND CEMENT COMPANY

OSHRC Docket No. 855

Occupational Safety and Health Review Commission

September 25, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Robert P. Weil, dated February 1, 1973, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in my colleague's disposition. The administrative law judge vacated Complainant's citation for serious violation primarily because, in his view, Respondent's safety program was adequate. He reasoned, therefore, that in the circumstances Respondent could not have known its brick truck operator would operate a truck boom into energized overhead wires in violation of 29 C.F.R. 1910.180(j). The legal premise for vacation was that knowledge requirements for a serious violation * were not met.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

* 29 U.S.C. 666(j).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I would agree that the knowledge requirements [*2] were not met but for different reasons. According to the record, Respondent instructed its drivers to alert it by radio of any unusual conditions existing on the job site. Respondent's supervisors had visited the job site, and its employees had made 50-100 deliveries to the same site. I find it significant that at no time did this operator, his fellow deliverymen, or any supervisor determine that a dangerous condition existed at the site. Moreover, one simply cannot ignore the fact that the operator involved herein was given an express warning of the existence of overhead wires as he operated the boom. On the record, it does not appear that Respondent could have known of the presence of the violation.

In circumstances like these, I have indicated that a technical, non-serious violation exists. CAM Industries, Inc., Mountain States Telephone & Telegraph Co., I concur in my colleague's disposition in this case in order [*3] that the case may be decided and for the reason that in the circumstances of this case the difference between no violation and a technical violation is merely a legal nicety.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: Disposition of this case necessarily turns on the facts. Neither the lead opinion nor the concurrence has set them out. They follow.

Respondent is engaged in selling ready mix concrete, sand and gravel, mortar and lime, brick, tile, and other building materials in Milwaukee, Wisconsin. An employee of respondent was electrocuted when he was operating a crane on a brick truck that "touched or very closely approached" a 4800 volt power line. Following an inspection by the Secretary, the issuance of a citation, and a hearing on the merits of the case, Administrative Law Judge Weil vacated the citation. Thereafter, Commissioner Van Namee directed review.

On March 15, 1972, Douglas Kapperman, respondent's employee, was dispatched to unload 40 bags of lime and 20 bags of cement at a construction site. He had made three deliveries to this site previously. He drove his brick truck to the delivery site and placed it in such a position that the boom on the truck [*4] used for unloading the cement and lime was eight to ten feet underneath 4800 volt power lines.

The boom was so close to the wires that two laborers of another employer at the site noticed the dangerous position of Kapperman's truck. Recognizing the electrocution hazard present, one of the laborers asked Kapperman, "Aren't you awful close to the wires?" Kapperman did not reply. The two employees, thinking that they could "get it, too" if Kapperman permitted the boom to touch the wires, went to the other side of a building and started working. They came back to find Kapperman lying dead beside the truck.

After inspection by the Secretary, respondent was issued one citation for serious violation of the Act. n1 The complaint alleged that respondent:

Failed to provide that a wheel mounted crane not be operated proximate to, under, over, by or near powerlines rated 50 kv or below unless the minimum clearance between the lines and any part of crane or load be 10 feet. . . .

The complaint further alleged that respondent was thereby in serious violation of the standard published at 29 CFR § 1910.180(j)(1)(i). n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - [*5] - - - - - - - - - - - -

n1 Respondent was also issued a non-serious citation that was not contested.

n2 Section 1910.180(j)(1)(i) reads as follows:

(j) Operating near electric power lines -- (1) Clearances. Except where the electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers not a part of or an attachment to the crane have been erected to prevent physical contact with the lines, cranes shall be operated proximate to, under, over, by, or near powerlines only in accordance with the following:

(i) For lines rates 50 kv. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Much of the testimony at the hearing focused upon the safety instructions given to Kapperman. Four years previous to Kapperman's death, he was asked by respondent to qualify as a relief driver of a brick truck. At this time, James Mislang, assistant to respondent's manager, demonstrated the operation of the brick truck to Kapperman. He told Kapperman to "be careful of the electrical wires" as he [*6] "mentioned the danger involved of operating too close" to them. He did not, however, discuss the exact distance of ten feet with him. Mislang never went out with Kapperman on a demonstration again.

Kapperman had requested a job as a regular brick truck driver and in December of 1971 his request was approved. When he became a full time driver, respondent's yard manager, Robert Tews, in January of 1972, talked to Kapperman about his new areas of responsibilities for about 15 minutes. He testified:

And then we cautioned him on the safety, the operation of the boom and I talked about a lot of things. I talked about he has got to make sure he wears his hard hat when he was lifting these pallets in case Handley didn't get the brick all in tight that it wouldn't hit him on the head, we talked about over head wires, we talked about everything you can imagine -- just be careful with this piece of equipment, watch what you are doing, if there is any question, jump on the radio, call us, call us, we will check, don't load the brick if you are not sure what they are, the normal operation of this piece of equipment. n3

When asked, however, whether he had warned Kapperman that [*7] a danger existed without actual physical contact with power lines, Tews testified that he did not explain the electrical nature of arcing to Kapperman and that he didn't understand it himself. Nowhere do I find that Tews testified that he instructed Kapperman to stay at least 10 feet away from power lines with his brick truck boom.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 At a prehearing deposition, Tews testified that the drivers were constantly warned, about power lines. But at the hearing, he testified he could not recall if he had given any warnings to Kapperman subsequent to January 1972, and that he had no knowledge of anyone else warning Kapperman after that time.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Mr. Ross Prange, respondent's treasurer and director, testified that he conducted safety meetings twice each month with yard managers, which included Tews. Drivers, however, were not present. Although the problem of high tension wires was discussed, Prange testified that the distance of ten feet was not discussed with regard to instructions given to drivers. For six months previous [*8] to the accident, respondent had posted near the time clock a 17 inch by 22 inch safety poster listing 22 items. Item 16 stated that crane booms shall not be operated within 10 feet of power lines. Prange testified, however, that he didn't know whether the individual items on the poster were discussed with each individual driver.

I believe that further evidence adduced at the hearing also must be given consideration.

William Garrison, one of respondent's cement truck drivers and the union steward testified that safety is never discussed when a new man is trained for a position as a cement truck driver. He further testified that only two safety meetings were held, one in 1957 and the other in 1959 or 1960.

James Cornell drove the only other brick truck for respondent. He testified that the company did not demonstrate how to operate the boom on his truck safely; that the company did not have safety meetings for operators of brick trucks; that no one from respondent ever demonstrated to him how to judge a distance of ten feet when using a boom; that the only safety item stressed was the wearing of hard hats; and that no one ever warned him to avoid high tension wires [*9] but he stayed away from them because of common sense.

The Administrative Law Judge found that Kapperman's employement record would negate the suggestion that he was "anything but a reliable, responsible, skilled operator of a heavy truck with moderately sophisticated unloading equipment." He held:

The accident occurred not because Butler failed to give Kapperman adequate safety training, if indeed Butler so failed, but because Kapperman failed to use common sense and judgment -- the common sense which made Cornell keep his boom truck away from other, similar wires at the site, which made Lewis, a construction laborer, size up the situation at a glance, and the tragic lack of which made Kapperman disregard the direct warning which Lewis gave him.

Hs found that the violation was not serious under section 17(k) of the Act because:

No evidence indicates that Butler knew of the position in which Kapperman had placed himself and no evidence indicates that it could have known with the exercise of reasonable diligence.

He further found that, "No evidence indicates that Butler was on notice of this lack of common sense and judgment."

Review was directed on the following issues: [*10]

(1) Did respondent know, or could it with the exercise of reasonable diligence have known, that its employee operated a crane in violation of 29 CFR § 1910.180(j).

(2) Assuming a negative answer to the foregoing question, should respondent, in the circumstances of this case, be found in non-serious violation of the Act's requirements.

After both parties submitted briefs on the above issues, the majority now affirms the Judge's decision. Chairman Moran believes that the Administrative Law Judge correctly decided the case while Commissioner Van Namee believes that vacation was proper because, "On the record, it does not appear that respondent could have known of the presence of the violation." n4 I disagree. In finding that the accident occurred because Kapperman failed to use common sense and judgment, I believe that the Administrative Law Judge erroneously shifted responsibility for compliance from the respondent to the electrocuted employee, Kapperman.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Commissioner Van Namee states that in circumstances such as in this case, he has indicated that a technical, non-serious violation exists citing Cam Industries, Inc., No. 258 (March 4, 1974), and his concurring opinion in Mountain States Telephone & Telegraph Co., No. 355 (January 3, 1973). I do not find a statement concerning a technical non-serious violation in those decisions.

[*11]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In Cam Industries, Inc., No. 258 (March 4, 1974), Commissioner Van Namee noted that even though an employee creates a violation this does not relieve the employer of its duty to comply with the Act, quoting the Senate Labor Committee, that "final responsibility for compliance with requirements of this Act remains with the employer." See also Brennan v. O.S.H.R.C. and Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974).

I believe that respondent's instructions were inadequate and that respondent violated section 5(a)(2) of the Act when its employee put the truck boom within eight to ten feet of the 4800 volt power lines in non-compliance with the cited standard.

I would also find that respondent's violation of the Act for non-compliance with the cited standard was a serious violation.

Section 17(k) of the Act provides that a serious violation exists:

. . . if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of [*12] employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

The issue in this case is whether respondent, with the exercise of reasonable diligence, could have known of the danger.

In Lebanon Lumber Company, No. 184 (March 19, 1973) the circumstances were strikingly similar to the instant case. Two employees were dispatched to a jobsite to assemble a boom extension on a mobile crane. Their supervisor, knowing a power line was at the site, discussed the power line with the employees and warned them to be careful and stay away from it. One employee was electrocuted when the crane struck the power line. The Commission found the respondent was in serious violation of the Act for non-compliance with the same standard published at 29 CFR 1910.180(j)(1)(i).

In this case, Tews testified that he did not observe power lines on the jobsite, but he also testified, "there is power lines on every job." Mislang also testified, "there is power lines on every jobsite in Milwaukee County." Thus Kapperman's supervisors knew he would be operating in the vicinity of power lines, but their only instructions [*13] were to "be careful of the electrical wires." I fail to see how the additional elements of a safety poster n5 and a two way radio in Kapperman's truck n6 distinguish this case from Lebanon Lumber Co., supra, and thereby demonstrate that respondent was not in serious violation of the Act under section 17(k).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Posting of safety rules is not a sufficient method of implementation of the standards. This case clearly indicates the ineffectiveness of such a practice.

n6 The presence of a two way radio is meaningless if Kapperman was unaware of the electrocution hazard presented by overhead wires.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In Brennan v. O.S.H.R.C. and Republic Creosoting Co., No. 73-1304 (7th Cir., August 16, 1974) the Court interpreted section 17(k) of the Act in light of the training given an employee. The Court said:

. . . for a serious-violation to be sustained, the danger must be one of which the employer knew or, with reasonable diligence, could have known. Whether training is necessary and the amount of any training [*14] required will depend on a number of factors, such as the experience of the employee in the particular field of work, the extent of the employee in the particular field of work, the extent of the employee's participation in the operation in question, and the complexity and danger involved in the operation. Where an employee is directly participating in a job, the employer may well, as the Commission noted, have a duty under the Act to instruct him on the safe procedure for handling the job. [Emphasis added]

In this case, Kapperman was the only employee participating in the operation. Kapperman's superiors were aware of the danger involved, but their only instructions were in 1968 to "be careful of electrical wires" and in 1972 in which Tews "talked about overhead wires."

I believe that under these circumstances a reasonably diligent employer would have forseen the danger to Kapperman. Respondent had a duty to instruct Kapperman on the safe procedure for operating the brick truck near power lines and it failed to do so. I would conclude that respondent was in violation of the Act and that the violation was serious as defined by section 17(k) of the Act.

[The Judge's decision [*15] referred to herein follows]

WEIL, JUDGE, OSAHRC: This is a proceeding under the Occupational Safety and Health Act of 1970, 29 USC § 651 et seq., to affirm a citation alleging a serious violation on March 15, 1972, and a proposed penalty, the citation and penalty notice being dated April 20, 1972, and being based on an inspection made on March 17, and 20, 1972.

After notice of contest the Secretary filed his complaint alleging, inter alia, that at the time of the alleged violation respondent was engaged in a business affecting commerce, within the meaning of 29 USC § 652(3), and alleging, like the citation, that on March 15, 1972, respondent violated 29 CFR § 1910.180(j) in that it permitted one of its wheel-mounted cranes, sometimes hereinafter called a "brick truck," to be operated within ten feet of live electric power lines, a practice involving a substantial risk of death or serious physical harm. Defendant by its answer denied that at the time in question it was engaged in a business affecting commerce and denied that it had violated the standard.

Respondent does not deny that on the date in question, in the course of making a delivery, one Douglas Kapperman, [*16] its employee, had so maneuvered one of its brick trucks that the crane boom of the truck touched or very closely approached power lines at a customer's premises, with the result that Kapperman was electrocuted. And respondent does not deny that in so doing, Kapperman was in serious violation of the standard; but it denies that it knew of the violation or that it could have known thereof with the exercise of reasonable diligence, since it had, as it alleges, adequately trained and instructed Kapperman in the safe operation of the crane. And it denied, by its answer, that it was engaged in business affecting commerce.

After joinder of issue respondent moved to vacate the citation on the ground that the Commission lacked jurisdiction over the subject matter of the proceeding. Complainant filed an affidavit in opposition sworn to August 28, 1972, by Peter E. Wasco, the compliance officer, and respondent, in support, submitted a letter dated September 2, 1972, by Clifford Kasdorf, Esq., its counsel, and the matter was duly briefed on both sides. On the admitted facts I found that at the time of the alleged violation respondent had in fact been engaged in a business affecting [*17] commerce within the meaning of the statute and accordingly, by order dated September 21, 1972, I denied respondent's motion for summary judgment and granted partial summary judgment in favor of complainant to the extent of determining that the Commission had jurisdiction of the subject matter of the complaint; and I incorporate that order herein, including the findings of fact and conclusions of law which it contains. With that step there is reached the issue as to whether or not respondent violated the cited standard.

At all material times respondent has been engaged in selling, in the Milwaukee area, ready mix concrete, sand and gravel, motar and lime, brick, tile and other building materials. To make deliveries to customers respondent operated a fleet of 24 trucks: 17 "cement trucks," 4 dump trucks, 2 "brick trucks," and a pickup truck. A brick truck is a flat bed truck having a steel pedestal rising from the rear part of the bed to a point slightly above the level of the roof of the cab. Near the top of the pedestal there is attached a crane boom which can be elevated and swung in an arc around the pedestal. The hoisting cable passes over a sheave in the boom and terminates [*18] in a "four hook bale-type lift" which attaches to the four corners of the pallets on which the bricks or the bags of material are stacked. The sheave is fixed in a "trolley," a device which, under the control of the operator, moves inside the boom, enabling the hoisting cable to be extended toward the load from any selected point between the outboard end of the boom and the inboard end. The movements of the crane boom, the trolley and the hoisting cable are controlled by the operator through and electric cord extending from the base of the pedestal and ending in a control box with a faceplate through which protrude push buttons. In addition to the buttons which control the movements described above there is a "dead-man button" which interrupts any further movement of the crane boom and hoisting cable. This portable control box enables the driver, on arrival at the customer's premises, to dismount from the cab and to operate the boom remotely, from a position from which he can keep in view the boom, the load, and the unloading site. Respondent's two brick trucks were about 35 and 25 feet long overall, respectively. The crane boom of the larger truck was 24 feet long [*19] and had a capacity of 4000 pounds, while that of the smaller was about 20 feet long and could lift 2000 pounds. At the time of the accident Kapperman was operating the smaller truck. In transit the crane boom is placed in a horizontal position, swung forward, and lowered into a "saddle" just above the top of the cab of the truck. To unload, the driver raises the boom from the saddle to the desired angle and then through the motion of the trolley he places the hauling cable over the center of the material to be lifted. Thus the crane boom enables one man to drive the load from the yard to the customer's premises and there unload it without assistance.

Respondent was one of six corporations engaged in the above described business in the Milwaukee area which were owned by the same shareholders and which "work together" (Tr. 206). Through their own efforts and with the assistance of their trade associations the corporations seek to keep abreast of the OSHA and Wisconsin regulations which they deem applicable to their operation. Both the OSHA and state codes forbid the operation of a crane boom within ten feet of power lines, a rule of special local importance since overhead [*20] wires are the rule rather than the exception in Milwaukee County.

Experience made the six corporations particularly alert to the dangers of operating cranes near high tension wires. Their safety program was under the direction of Ross Prange, a director and treasurer of Butler and a director and officer of each of the other five corporations as well. Twenty years ago one of the six corporations, North Milwaukee Lime & Cement Company, had a clamshell type crane mounted on steel crawler treads. Prange was the operator of the crane. High tension wires ran along one side of the yard. On a damp day, when the air and the ground were moist, the current arced an unexpectedly long distance from the wires to the crane. No one was hurt but the crane was immediately moved to another yard which was free of the mentioned hazard and never brought back. And about five years ago, when Prange was yard manager for the North Milwaukee company, another member of the group, West Allis Lime & Cement Company, had a cement truck which was pouring concrete through its chute into a bucket attached to a crane, at a customer's site. While the chute was in contact with the bucket the crane touched [*21] or closely approached high tension wires. The West Allis driver had his hands severely burned. Prange described as follows the discussion to which this incident gave rise:

. . . stay away from it, be alert, look around, stay away from wires, don't get near it. If you have got a problem, call in (Tr. 282).

Thus the doctrine of the six corporations as to the omnipresent wires in the Milwaukee area was, Don't try to measure ten feet. Keep well away. And if you have a doubtful situation, call in on the radio telephone and wait for help. In the words of Prange's examination by complainant's counsel:

Q To your knowledge in the instructions given to drivers who operate brick trucks does the person giving the demonstration or the instruction indicate by the use of the boom what ten feet of distance would be? A To my knowledge that phrase ten feet would not come up.

Q I see. A Because we want them to stay away not . . . (Tr. 278-9)

Clearly the six corporations' safety director was personally well aware of what can happen when a crane boom gets near high tension wires; and he knew how to define a practical corporate safety rule to buttress the OSHA and Wisconsin regulation against [*22] operating a crane boom within ten feet of wires. It remains to be seen if and how Prange's special competence in this field was transferred into an effective program for Butler's brick truck drivers in general and particularly for Douglas Kapperman, the unfortunate driver involved in the alleged violation herein.

The six corporations had regular meetings every two weeks at which matters of importance were considered. At these meetings safety procedures with respect to overhead wires were often discussed. Prange presided. The managers or acting managers of all of the yards attended, including Robert Tews, Butler's manager, or in his absence, James Mislang, his executive assistant. No drivers attended these meetings and there had been no meetings for drivers since a group-wide safety meeting in 1957 and a group-wide meeting in 1959 or 1960 at which safety was one of the subjects.

According to Prange, in place of formal periodic meetings for drivers, safety training was given as follows. In the case of a new man, or a man changing a piece of equipment or a man "rebidding" for a job, he would receive two or three days of coaching in the general operation of the vehicle [*23] and in safety procedures. In the case of a concrete truck driver this coaching would be performed by an experienced driver. There being so few brick truck drivers and so few changes in their roster, the procedure as to them was less routine; and coaching would be by an experienced driver or by a qualified member of the supervisory group. During this process the new brick truck driver would be warned about high tension wires each time he took out a vehicle and the warning would be repeated whenever he received a disciplinary letter or other reprimand. In addition, according to Prange, safety was stressed in the day-to-day contacts between management and the drivers, which occurred usually through the dispatchers, who, one or more times each day, handed a delivery order to each driver on duty. Prange said that on these occasions the dispatcher would stress to the driver anything of importance recently brought to the attention of management, any new item on the bulletin board, or "the current hot item of the day" (Tr. 283).

As part of this continuing emphasis on safety, Butler displayed a poster 17 inches by 22 inches, on which was set forth in bold type, with headings [*24] in red, the 22 General Safety Rules of the Construction Industry Safety Council, Suppliers Group. Rule 16 read as follows:

Crane Boom, under no circumstances shall be operated within ten feet of power lines (Resp. Ex. 5).

This poster appeared for six months prior to March 15, 1972, on the bulletin board in Butler's office, very near the time clock where all drivers had to punch in and out, and very near the dispatcher's desk where the drivers received their delivery orders. On this board were posted personnel notices from Butler and from the union, as well as individual messages to and from the drivers.

Prange testified that at Butler the chain of responsibility in safety matters ran from him to Tews, the manager, who was assisted in operations by Mislang, and in other matters by the so-called payroll clerk and by the dispatchers. Nevertheless, said Prange, he regarded safety instruction in each yard as one of his own duties; and he personally inspected each yard, including Butler, once a week, his visits lasting for an hour to an hour and a half.

Prange's evidence, central to respondent's case as to safety training and work rules, was confirmed by Mislang and Tews and contradicted [*25] by Dennis Heitman, James Cornell and William Garrison. As here material, their testimony was as follows.

When in 1968 Kapperman was asked by Butler to qualify as relief driver on brick trucks, he had had long experience with Butler as a driver of cement trucks and dump trucks. Although Mislang was a supervisor, not a member of the union, and so could not drive a brick truck as a regular duty, he was qualified by skill to do so; and prior to assisting Kapperman he had helped other drivers with respect to safe unloading procedures. Since there was no experienced brick truck driver then available, Mislang coached Kapperman on the handling of the boom. Kapperman asked about the controls and Mislang explained them to him. Then Kapperman drover the smaller of Butler's two brick trucks, loaded with about ten pallets of brick, to Millway Nursing Home at 85th Street and Mill Road, where Mislang met him. Mislang walked around the site with Kapperman and they looked the situation over. Then Mislang took the control box in hand and with it unlimbered the boom from its saddle and used it to unload the first two or three pallets. While thus demonstrating, Mislang explained various [*26] points regarding the boom. If one attempted to lift with the boom horizontal, the truck could be tipped over. The boom must be used to "advantage" (Tr. 137), i.e., the more nearly it approached the perpendicular the greater its capacity to life; but with the boom thus raised, one must look out for an overhang of a house "and, of course, overhead wires. . ." (id). Kapperman took the box and under Mislang's watchful eye he unloaded the rest of the brick. Mislang noted that "everything he did he did slow and careful" (id). By so doing, he seemed to learn quickly. "He became much more experienced in a short time. In other words, by the time he got to the last two pallets he understood what the situation was, and what he had to do to contain the weight there and use the boom" (Tr. 138).

At the nursing home site Mislang "pointed out the wires" (Tr. 167). He also pointed out buildings, overhangs, and a fence, and warned Kapperman "not to get too close" (Tr. 167); but he did not mention ten feet -- "No, no, I didn't discuss exact ten feet distance. . . I believe my statement was be careful of the electrical wires as well as any other part of our discussion. . . I mentioned [*27] the danger involved of operating too close to electrical wires" (Tr. 168-9). Mislang was satisfied with Kapperman's progress and skill as a crane operator and never made another trip to assist him or to observe his work; and he never had occasion to reprimand Kapperman for making a delivery improperly.

Mislang was in overall charge of all drivers under Tews. As assistant manager he emphasized generally with drivers the standing rule that one who felt he might be getting "too close" was to call the office on the radio telephone in the cab of his truck. Mislang has a radio in his car. As he testified, ". . . I am available to go to the job or someone is available so they really don't have to take any chances. . ." (Tr. 140). When Mislang acted as relief dispatcher he talked safety to the drivers, but not with every load.

Tews, the Butler yard manager, talked safety with Kapperman at the end of December, 1971, when Kapperman's bid to become a regular brick truck driver was approved. Tews took Kapperman into his office and they talked for fifteen minutes.

. . . we talked about overhead wires, we talked about roofs, we talked about everything you can imagine -- just [*28] be careful with this piece of equipment, watch what you are doing, if there is any question, jump on the radio, call us, call us, we will check. . . (Tr. 218).

Kapperman had a few questions about the truck. When Tews had answered these Kapperman said he had nothing more, and he would be "all set" (Tr. 219). After this Tews never discussed wires with Kapperman and did not recall anyone else doing so.

Dennis Heitman, Butler dispatcher, gave evidence inconsistent with Prange's testimony that safety was stressed in the day-to-day contacts between management and the drivers via the dispatchers. Heitman testified that over a period of four to six months prior to Kapperman's accident, he dispatched 50 to 100 deliveries to the site at 78th Street and Sheridan Avenue; and that he never mentioned safety rules as to wires at the site to any driver, including Kapperman.

James Cornell, who drove the larger Butler brick truck, testified that he never received any demonstration or other instruction on the operation of the truck from Butler or anyone else; that earlier he had driven another brick truck for Butler, but that he had to learn that one for himself as well; that Tews never told him [*29] to keep away from wires until after Kapperman's accident; that safety rules and instruction at Butler were limited to hard hats and yard housekeeping, with no mention of wires as a hazard in the operation of crane booms; that with his brick truck he made several deliveries to the site at 78th Street and Sheridan Avenue and that no one ever warned him of the wires there. Tews contradicted Cornell's statement that Cornell never received safety instruction except about hard hats and housekeeping. He testified that he talked with Cornell for ten or fifteen minutes about hitting roof gutters, trees and other objects with the boom of his truck; that he cautioned Cornell to watch out for obstacles above; and that Butler wanted to end accidents; but he did not recall whether he mentioned overhead wires.

William Garrison, the yard steward, gave evidence inconsistent with Prange's testimony that all new drivers received instruction in safety procedures and Butler's safety rules. His testimony was limited to the practice with respect to cement trucks; but this covered 70 percent of Butler's equipment. He had been with North Milwaukee, one of the six corporations, for 22 years [*30] and with Butler for the last two years. He was yard steward for Local 200 of the Teamsters Union. He testified that while each new man was given two or three days of coaching by an experienced driver, there was no oral instruction or discussion as to safety except regarding the wearing of hard hats. Safety instruction in the use of equipment was limited to what the driver might glean from the demonstration which he received in the operation of the vehicle.

Kapperman had a good record as a driver and as an employee, and a good safety record. These indicated that he drove a cement truck from not later than 1961 until 1967, when he successfully bid to drive a dump truck, which constituted his regular vehicle until July 1970, when he changed back to cement trucks. In 1968 he qualified as relief driver on brick trucks and in December 1971 he became a regular driver on brick trucks and in connection with these changes he received the instruction from Mislang and Tews described above.

Kapperman had an improving safety record both with respect to auto accidents and personal injuries. In 1961 the chute of his cement truck struck the wall of a building, with damages of $237. [*31] In 1962 his truck tore down overhead wires, without loss. In 1963 the chute of his cement truck hit a building, without loss. In 1966 the box of his dump truck tore down overhead wires, without loss. And in 1970 he received a warning letter for incorrect loading of his truck, which resulted in the loss of part of his cargo enroute. Most significant, this evidence indicated that Kapperman had no charge against him of rule infraction pertaining to the operation of the boom as a brick truck relief driver from 1968 through 1971 and as a regular brick truck driver during the first two and a half months of 1972 up to the date of his accident. Kapperman's personal accident record showed the following trend. In 1962 he burned two fingers, resulting in an expenditure of $100 by Butler's liability carrier; and he stepped on a nail without loss. In 1963 he scratched his fingers on a chute, without time loss. In 1965 his face was burned when a radiator cap blew off, with a week's time lost from work. And in 1968, the last entry in the record shows that he burned his leg, with no time lost. Inclusive of Kapperman's early injuries, Prange did not deem the aggregate to be abnormally large. [*32]

As to general work rules, Kapperman in over ten years of employment was involved in only one alleged infraction. In 1971, while he was driving a cement truck, he was directed the afternoon before, to report to work the next day. When he came in there was no regular work available for him but the union contract required that he be paid for a minimum of two hours, so he was given a make-work type of assignment to fill out the time. During the period a cement truck delivery was required and this was assigned to Kapperman, but he went home. Tews regarded this as a "quit," and according to Tews, Kapperman was off the payroll for three or four days and received a "First and Final Notice," under which he became subject to automatic termination of employment if the infraction was repeated within nine months. But according to Garrison, the yard steward, the incident was a result of a misunderstanding and was settled by him the next night with Tews, with Kapperman off the payroll for only one day, and with a Warning Letter, but no First and Final Notice.

Tews and Mislang regarded Kapperman as a less than model employee during the six months prior to his death. To them and [*33] to Prange, his requests for time off without pay were excessive. But Garrison disagreed that Kapperman's requests were excessive. He pointed out that the period in question included the worst weather of the year, when deliveries were slow, and when many drivers, with management approval, took time off comparable with that taken by Kapperman. Heitman, who reviewed requests for time off, could refer a doubtful case to Tews. However Heitman granted all of Kapperman's requests without referring any of them to Tews. Except as claimed by Tews, management never took any steps which were conditions precedent to terminating Kapperman's employment; and the incident did not prevent management from approving Kapperman's bid to become a regular brick truck driver. So much, then, for the equipment which Kapperman was operating, for Butler's safety rules and safety training, and for Kapperman's record. We come then to the events directly leading up to the fatal accident.

The scene was a construction site at 78th Street and Sheridan Avenue, Milwaukee, embracing seven to ten acres, where a developer, with the aid of five contractors, was constructing a cluster of apartment houses. [*34] It was five miles from the Butler yard. Butler had no control over the site or the operation. Butler's sole connection was the circumstance that Commercial Construction Corporation, the mason contractor on the job, purchased mason's supplies from Butler, which Butler delivered to Commercial at the job site.

There were overhead wires at the site, which was usual in Milwaukee County, except perhaps for the circumstance that the clearance between the ground and the wires may have been reduced in places where the grade had been raised by fill in the course of construction operations. In respect of the 50 to 100 deliveries over a period of four to six months preceding the accident, Butler received no report from a driver regarding actual or apprehended danger or other difficulty in unloading. With his brick truck Kapperman made one delivery to the site on February 10, 1972, and two on February 23, 1972, all without inquiry to Butler and all apparently without incident.

Cornell, the driver of the other brick truck, could not tell how many deliveries he made to the site but he made a brick delivery there a day or two before the accident. He noticed wires at the site but no one at [*35] Butler warned him about them. He did not see the wires which caused Kapperman's accident but he saw other wires along the east end of the project. Not from any precept from Butler but because of common sense and judgment Cornell "had to pull back off because of the high tension wires" (Tr. 348). On cross examination Cornell testified in part as follows:

Q Why did you pull away from the wires?

A I just have a tendency -- I know fellows that operate those booms but I take it upon myself to stay away from them.

Q You saw the wires.

A These here ones, yeah.

Q And because the wires were there you didn't unload underneath them?

A I didn't get near them.

Q Stayed away from them. Would you say that is just common sense?

A That's what I call it.

Q And you don't recall Bob Tews telling you to stay away from wires?

A No, not until after this accident. This wire has never really been stressed or even mentioned. (Tr. 348-9)

What happened to Kapperman on March 15, 1972? Some time after 8:30 a.m. Heitman gave him Order Number X08867 calling for delivery of 40 bags of Miracle Lime and 20 bags of Marquette Cement at the construction site. Heitman gave him no special instructions [*36] as to wires and no special instructions as to the exact place within the site where he was to unload. However at the time Heitman did talk briefly with Kapperman. There had been an incorrect delivery at another site, at Highway 100 and Silver Spring, which lay along the route between the Butler yard and 78th Street and Sheridan Avenue. Heitman explained the situation to Kapperman and told him to deliver the material which the Silver Spring customer wished, and to pick up what had been left there erroneously. Heitman, who had known Kapperman for three or four years, observed nothing special with respect to his demeanor that morning. Nothing that Kapperman did or said at the time put Heitman on notice that anything was out of the ordinary with Kapperman when he walked out of the office with the fatal order. To Heitman, "everything seemed normal" (Tr. 297). And this was borne out to some extent by the circumstance that when Kapperman reached 78th Street and Sheridan Avenue Kapperman had received a written order and oral instructions; he had called at the Silver Spring site and delivered the material needed there and picked up what had been erroneously shipped. So far [*37] everything had proceeded without incident and nothing in the immediate facts gave Butler reason to foresee what was about to occur.

That part of the site in which Kapperman attempted to make his delivery is portrayed by Ex. 8 offered jointly by both parties. This diagram was drawn by complainant's witness, Norbert Lewis, while he was on the stand. Lewis was a laborer employed by Commercial. He ran a portable cement mixer which he moved around to keep it as close as possible to where the masons from time to time needed mortar, or "mud," as they call it. With another of Commercial's laborers, Lund, Lewis was working near the cement mixer when Kapperman drove up in the truck, and it was understood between him and Kapperman that the cement and lime were to be unloaded near the mixer.

Kapperman drove in between Building #1 and the Parking Lot and with the truck's boom in the horizontal position, resting in its saddle, passed under the line of wires which ran between Building #1 and Building #2. There was room for the truck to go straight ahead, past the wires, to a point next to the cement mixer or past it. Or, if Kapperman wished to face the wires, he could have backed [*38] up until the front of the truck was clear of the wires and the truck was abreast of Building #2. There was plenty of room for either of these maneuvers. Using the cement mixer as the point of reference, Lewis put it this way:

He could have drove all the way past it, way up into here. There is a road where we had been going through all the time (Tr. 90).

Mislang described the situation in similar terms (Tr. 154-7).

Furthermore Kapperman must have known that he need not be concerned about getting stuck if he went further away from the wires. When his wheels spun, Lewis threw a few shovelfuls of sand under the tires, giving him traction.

The broken line in the diagram shows Kapperman's route and the arrows show his direction. After he crossed under the wires, he turned right, backed up, and then came straight forward so that the forward end of the boom projected two or three feet beyond the wires. On the diagram "K" indicates Kapperman's position as he stood with the control box in his hands; "L" indicates the position of Lewis; "P" indicates the pedestal at the rear of the truck to which the base of the boom was attached; and "CM" indicates the cement mixer. Thus in order [*39] to unload from the position which he had taken up, Kapperman had to lift the boom from the saddle, swing it to the right, away from Building #2, to clear the wires, raise it, and then to swing it back over the wires so that it would be over the cargo to be hoisted. As the boom took the strain of the load, it would be pressed down toward the wires -- how much only the event would tell.

The danger of the procedure which Kapperman would have to follow was obvious to Lewis; and he voiced his fears to Kapperman who was five or six feet away, within easy hearing distance.

Well, when he stopped his truck where he did, I noticed that the wires were pretty close, and I was thinking at the time about an incident that happened in my home town where two people got killed, where a television antenna got against the wires so I told Mr. Kapperman, I says, 'Aren't you awful close to the wires?' And at this time he was out of the truck and operating his control, and he kind of glanced towards me and didn't say anything to me, but he looked at me and more or kind of moved his head a little bit, and so I figured, at that time he glanced back to what he was doing. I imagine he had the controls [*40] pressed, and he couldn't look away too long. * * * My voice isn't the loudest but, I mean, I talked to him just, you know, like I figured he should have heard me, and he looked at me, and he nodded his head kind of, and I told the other laborer -- it was real muddy and wet -- I said, 'C'mon, let's get out of here. If he touches those wires maybe we could get it, too;' standing here in the mud. So we went around the other side of the building and started working (Tr. 58-9).

Lewis explained the position as follows:

When the truck was stopped, and the person was just starting to lift the boom out of the place where it sets on the truck. I told him then, and he wasn't -- he was probably eight, ten feet from the wires at that time. I mean quite a ways away. He wasn't real close. But in order to get the material off it looked to me that he would have to come pretty close to the wires, and it didn't look like a good situation to me so I mentioned it to him (Tr. 60).

Lewis and Lund walked away and worked for about ten minutes on the other side of Building #2. When they came back Kapperman was lying on the ground and it was all over.

We come then, to the provision of [*41] the Act. Under § 17(k), a serious violation cannot obtain if "the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." No evidence indicates that Butler knew of the position in which Kapperman had placed himself and no evidence indicates that it could have known with the exercise of reasonable diligence. The accident occurred not because Butler failed to give Kapperman adequate safety training, if indeed Butler so failed, but because Kapperman failed to use common sense and judgment -- the common sense which made Cornell keep his boom truck away from other, similar wires at the site, which made Lewis, a construction laborer, size up the situation at a glance, and the tragic lack of which made Kapperman disregard the direct warning which Lewis gave him.

No evidence indicates that Butler was on notice of this lack of common sense and judgment. On the contrary Kapperman's record as a driver, his individual safety record and his record as an employee subject to a variety of work rules negate the suggestion that Kapperman was anything but a reliable, responsible, skilled operator of a heavy truck with moderately sophisticated [*42] unloading equipment. In the premises, there was no notice to Butler that Kapperman would choose so obviously dangerous a position from which to attempt to unload.

a series of cases the Commission has refused to attribute to the employer the act of an employee in breach of a regulation or in breach of § 5(a)(1) of the statute where the employee's act was either forbidden by the employer's work rule, generally effectively enforced, ( Standard Glass Company, Inc., #259; Hansen Logging Company, #141; General Tire Service, #181) or was a gross aberration from safe practice, which aberration was reasonably unforeseeable in the light of the employee's record and the task upon which he was employed ( Hanovia Lamp Division, #85; Clements Paper Company, #419). The case at bar falls under the latter classification, since the evidence is so strong that at the time of the violation Kapperman was engaged in a practice widely at variance from the usual, safe method of accomplishing his task, which practice was not required or invited by the employer's desire to get on with the job ( Date M. Madden Construction, Inc., #9) or by the employer's desire to avoid reinforcing [*43] the crew ( Eller Bos., Inc., #406). In discriminating between the cases in which it would attribute the violation to the employer and those in which it would not, the Commission has sought to give affect to the legislative purpose underlying the Act, i.e., to promote on the part of employers modes of conducting workplaces which will protect workers from identified dangers; and it has refused to make employers insurers of safety in conditions over which they have no control, including serious dangers of which "the employer did not, and could not with the exercise of reasonable diligence know of. . . ." This is expressed in Commissioner Van Namee's concurring opinion in National Realty and Construction Co., Inc., #85, and was later stated by the Commission in The Mountain States Telephone and Telegraph Company, #355, as follows:

Congress did not enact the Occupational Safety and Health Act to create guarantors upon whom to fasten responsibility for illnesses or injuries or deaths to employees. Their purpose was remedial. The Act is a broad scale effort to prevent "personal injuries and illnesses arising out of work situations." The first-stated purpose of [*44] the Act is to encourage and stimulate "programs for providing safe and healthful working conditions."

To hold an employer absolutely and strictly responsible for all deaths and injuries to his employees is contrary to that purpose, to the very reason for having occupational safety and health standards, and to the Act itself.

This Act does not address itself to intangibles. It provides for the promulgation of specific standards. A standard is developed because there is a workplace hazard which has been revealed through research or the experience resulting from many work situations (emphasis added).

Here moving the crane boom into contact or immediate proximity with the wires was not a hazard "revealed through research or the experience resulting from work situations." It was the result of human error not reasonably foreseeable by Butler.

The scheme of civil penalties is a measure for exercising the power of Congress to control commerce. As pointed out by the Commission in the cases last cited, Congress intended to exercise that power through deterring employers from permitting known practices which endanger workers. To exact a penalty from Butler because Kapperman [*45] committed an unforeseeable error of judgment, contrary to company policy and rule, would not implement the legislative intention. The citation and the notice of proposed penalty are accordingly vacated.

III

Thus the allegation framed on the citation based on the inspection of the compliance officer has been successfully met by respondent. But a man died; and the books ought not to be closed on the transaction without setting forth further occurrences, consideration of which may help toward a more effective administration of the Act in the future.

(1) Cross examination revealed that the compliance officer, who visited the Butler yard two days after the accident, never examined the truck, or the control box (Tr. 30-31) which was in Kapperman's hand shortly before he died.

(2) Tews and Mislang, the manager and the assistant manager of the Butler yard, in charge of the drivers, then testified that after Kapperman's accident the truck was checked, including the electrical controls of the boom, and found to be in full working order, with no necessity for repairs or replacements (Tr. 158, 230-1).

(3) There is a "dead-man button" on the control box which is intended to shut [*46] everything off in an emergency.

(4) Cornell, the driver of the other brick truck, (Tr. 343) and Zielinski, who took Kapperman's place as driver of the truck involved in the accident, testified that after the accident the "dead-man button" in the control box of the ex-Kapperman truck was missing. Zielinski testified that he reported it to Heitman, as a result of which it was replaced by Butler's mechanics, but when, he Counsel for Butler stated that Zielinski's testimony, then just given, was the first he ever heard of the missing button. Zielinski replied that he had mentioned it to counsel a few days before, in counsel's office (Tr. 359). Counsel denied this.

(5) Tews then admitting that the button was replaced by Butler's mechanics, but when, he could not recall (Tr. 369-70). And Mislang testified that if Zielinski said that the button was missing, then maybe it was; but he had no independent recollection; that the chain of report would have been Zielinski to Heitman to the bookkeeper to the mechanics; but that no work order would have been made (Tr. 373-4).

(6) When the above came out at the hearing, complainant was offered an opportunity to move to conform the [*47] pleadings to the proof. After considering the matter during a short recess complainant refused the offer (Tr. 385-93).

Thus heedless of the admonition contained in the Commission's opinion in National Realty and Construction Co., Inc., supra, at pp. 7-8, another case involving the death of a worker was presented without consideration of facts which might have demonstrated a clear violation of the Secretary's Regulations, here 29 CFR 1910.242(a).

WEIL, JUDGE, OSAHRC: This is a proceeding under the Occupational Safety and Health Act of 1970, P.L. 91-596, 29 USC § 651 et seq.

Respondent moves to dismiss the citation on the ground that the Commission lacks jurisdiction of the subject matter of the proceeding. As here pertinent the case may be stated as follows.

Respondent, a Wisconsin corporation, is engaged in the business of selling building materials from six yards in the metropolitan area of Milwaukee. On March 15, 1972, respondent was delivering a truckload of mortar and lime from one of these yards to a construction site at 78th and West Sheridan Streets in Milwaukee. The truck was equipped with a crane boom to facilitate unloading. The truck was operated [*48] by one Douglas Kapperman, an employee of respondent. In the course of unloading, the crane boom touched or came close to high tension wires and electricity passed into the crane boom, inflicting injuries on Kapperman from which he dies. Thereafter complainant instituted this proceeding by citation charging respondent with a violation of 29 CFR § 1910.180(j), a standard which complaint had promulgated pursuant to the Act, which prohibits the operation of a crane boom within ten feet of energized power lines.

While denying that it failed to comply with the standard respondent in its motion asserts that the subject matter of the claim is not within the jurisdiction of the Commission because the transaction on which the alleged violation is based was a local act not part of the stream of commerce and because, as respondent further contends, Congress has not elected in the Act to exercise to the full extent its plenary power under Article I, § 8, Clause 3 of the Constitution under which it could, if it wished, regulate local activities which affect commerce. In support of its argument respondent alleges that the goods which were being delivered at the time of the accident had been [*49] purchased by it in Wisconsin, delivered to it in Wisconsin and sold by it in Wisonsin.

Complainant does not contend that the alleged violation occurred in the course of a transaction which, taken by itself, would have been deemed to constitute commerce. He asserts that in the Act Congress has exercised the full extent of its commerce power, including the power to regulate intrastate activities which affect commerce; that respondent in the regular course of its business deals in goods which reach it after moving in commerce after their origination; that this circumstance makes respondent's business a business "affecting commerce" within the meaning of the Act; and that accordingly, all transactions in respondent's business are brought within the sweep of the Act, including those which, taken by themselves, might be deemed intrastate in character.

Complainant points out that the record now shows without dispute that respondent employs in its business gross assets in excess of a million dollars; that the gross receipts from its business for calendar year 1971 exceeded two million dollars; that this gross derived from the sale of building materials part of which respondent [*50] resold in the form purchased and part of which, e.g., ready mix concrete, it manufactured from goods purchased; and that "approximately ten (10%) percent of its purchases are made outside the State of Wisconsin with a maximum of fifteen (15%) percent." Complainant cites § 5(a)(2) of the Act which requires an "employer" to comply with standards promulgated pursuant to the Act; § 3(5), which defines "employer" as an employer "engaged in a business affecting commerce. . ."; and § 3(3), which defines "commerce" as "trade, traffic, commerce, transportation, or communication among the several States. . . ."

Assuming that on the commerce issue respondent's submission eliminates questions of fact and leaves only a question of law, the Commission may decide the question now, as tendered by respondent's motion; it need not leave the proceeding encumbered by that separate issue until final hearing. Respondent's statutory and constitutional right to an evidentiary hearing obtains only where the record presents a real issue of fact, not merely an apparent issue on the face of the pleadings.

Thus in Producers Livestock Marketing Association v. United States, 241 F.2d 192, [*51] (CA 10 1957), petitioner commenced a proceeding before the Secretary of Agriculture for a determination that a regulation promulgated by a stockyard corporation was void for illegality. At the hearing petitioner presented argument but refused to offer evidence. The Secretary, deeming that consideration of various facts was necessary to enable him duly to pass on petitioner's prayer for relief, dismissed the petition. The court found that the regulations were illegal on their face as a matter of law. Reasoning that absent a question of fact, an administrative officer or body has the same power and duty as a court to pass on an issue of law, the court held:

Where no genuine or material issue of fact is presented the court or administrative body may pass on the issues of law after according the parties the right of argument. This was done in the instant case and constitutes a "full hearing" for consideration of the limited contention made by the petitioner in its complaint and by its election not to submit evidence (241 F.2d p. 196).

The court remanded the proceeding to the Secretary with directions to vacate the order dismissing the petition and to enter an order granting the [*52] prayer of the petition. The Supreme Court affirmed, holding, like the Court of Appeals, that since the petitioner was entitled on the law to the relief which it sought, an evidentiary hearing was unnecessary. Denver Stockyards v. Livestock Assn. 356 U.S. 282, 288 (1958).

In Macomb Pottery Co. v. National Labor Relations Board, 376 F.2d 450 (CA 7 1967), the General Counsel of the Board, on the basis of the evidence then in the record of the case, moved for summary judgment in a proceeding under 29 USC § 160 against Macomb for an unfair labor practice. The Board found that Macomb had produced no evidence raising an issue of fact. It overruled Macomb's demand for an evidentiary hearing and its objection that summary judgment was unauthorized, and granted the motion. In making an order enforcing the Board's decision the court thus succinctly expressed the principle here applicable:

Although 29 U.S.C.A. § 160, the statute governing the unfair labor practice proceeding, does require "a notice of hearing" and provides to the person complained of the right 'to appear in person or otherwise and give testimony,' it cannot logically mean that an evidentiary hearing [*53] must be held in a case where there is no issue of fact (376 F.2d, p. 452).

In a similar case under 29 USC 159, Judge Learned Hand stated the rule as follows:

Upon such a record the defendant's denial of any hearing was right. Neither the statute, nor the Constitution, gives a hearing where there is no issue to decide. . . . The Constitution protects procedural regularity, not as an end in itself, but as a means of defending substantive interests. Every summary judgment denies a trial upon issues formally valid. Where, as here, the evidence on one side is unanswerable, and the other side offers nothing to match or qualify it, the denial of trial invades no constitutional privilege Fay v. Douds, 172 F.2d 720, 725 (CA 2 1949).

Referring to the special applicability of the rule to administrative proceedings, which are designed to reach final decision as expeditiously as due process permits, Judge Hand continued:

These considerations are particularly appropriate when we consider that the Board must conduct its duties in a summary way; not, we hasten to add, without observing all the essentials of fair administration, but with as much dispatch as is consistent [*54] with those.

This principle has been given effect in other administrative proceedings whenever the question has been raised. See, e.g., National Labor Relations Board v. Mastro Plastics, 354 F.2d 170, 180 (CA 2 1965); Birkenfield v. United States, 369 F.2d 491, 494 (CA 3 1966); Citizens for Allegan County v. Federal Power Commission, 414 F.2d 1125, 1128 (CA DC 1969); Virginia Electric & Power Co. v. Federal Power Commission, 351 F.2d 408, 410 (CA 4 1965); Pan American Petroleum Corp. 27 FPC 688 (1962); City of Los Angeles v. Federal Maritime Commission, 388 F.2d 582 (CA DC, 1967); Persian Gulf Outward Freight Conference v. Federal Maritime Commission, 375 F.2d 335, 340-41 (CA DC 1967); American Export & Isbrandtsen Lines v. Federal Maritime Commission, 334 F.2d 185, 194 (CA 9 1964); Pan American-Grace Airways v. Civil Aeronautics Board, 178 F.2d 34, 36 (CA DC 1949); American Air Transport and Flight School, Inc., Enforcement Proceedings, 15 CAB 218, 227-8 (1952); Continental Assurance Co., Separate Account B, Investment Act Release No. 4798 (SEC 1966), Fed. Securities Law Reports (CCH) § 77,423, p.82,799 [*55] at p.82,800; The Dredge Corp., 65 Interior Dept. 336, 338-41 (1958); Clear Gravel Enterprises, 64 Interior Dept. 210, 212-13 (1957).

The record now shows that as a matter of law this proceeding is within the jurisdiction of the Commission. The Act is not limited to the regulation of the stream of commerce, as respondent contends. To bring occupational safety and health to the working men and women of the Nation, Congress intended to exercise the full measure of its plenary power under Article I, § 8, Clause 3 of the Constitution. Thus on a finding that "personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce" Congress declared it to be "its purpose and policy, through the exercise of its power to regulate commerce . . . to assure so far as possible to every working man and woman in the Nation the protection of safe and healthful working conditions. . ." (Act, § 2(b); emphasis added). In a report to the House of Representatives on the conference committee bill which became the Act, Mr. Steiger, one of the authors of the legislation, said:

Mr. Speaker, in this session [*56] of Congress the House and Senate have passed for the first time in our Nation's history comprehensive occupational health legislation. The conference committee reported bill, which is now before the House, represents an unprecedented response by Congress to the need to help save the lives and protect the health of the working men and women throughout this great Nation.

The coverage of this bill is as broad, generally speaking, as the authority vested in the Federal Government by the commerce clause of the Constitution. The terms of this bill will apply to all businesses having an effect on commerce except where another federal agency other than the Department of Labor is exercising statutory authority to prescribe or enforce occupational safety and health standards or regulations (116 Cong. Rec. p.42206, Dec. 17, 1970; emphasis added).

The power which Congress exercised in the Act was as broad as the power of the states over intrastate commerce. United States v. Rock Royal Co-Operative, Inc., 307 U.S. 533, 569-70 (1939). It is limited only by the Constitution itself. United States v. Darby, 312 U.S. 100, 115 (1941). As such, it included the power [*57] here exercised to regulate the intrastate sale of goods which have at any time crossed state lines, even where the seller to be regulated purchased the goods within the state of resale and received delivery of them there. United States v. Sullivan, 332 U.S. 689 (1948); Wirtz v. Melos Construction Corp., 408 F.2d 626 (CA 2 1969).

To be sure, in § § 301(k) and 502(f) of the Federal Food, Drug and Cosmetic Act of 1938, see 21 USC § § 331(k) and 352(f), construed by the court in Sullivan, and in the Fair Labor Standards Act, see 29 USC § 203(a), enforced in Melos, Congress itself made the determination that commerce was affected by the resale of goods in one state which had originated in another, whereas in the Occupational Safety and Health Act Congress left it to this Commission to determine in each case whether the activity in question affects commerce. See Act, § 3, Subsections 3 and 5, 29 USC § 652(3) and (5). But for this mode of regulation there is ample precedent. As the Supreme Court has pointed out, see United States v. Darby, supra, 312 U.S. p. 460, this case by case determination is made under some statutes by the courts, as under the Sherman [*58] Act, 15 USC § § 1-3, and under others, as here, by an administrative tribunal, e.g., by the National Labor Relations Board in a proceeding to prevent an unfair labor practice "affecting commerce" under the National Labor Relations Act, see USC § § 152(7) and 160(a) and (b). National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937). By § 10(c) of the Occupational Safety and Health Act, 29 USC § 659(c), Congress conferred on this Commission power to decide in each case whether respondent's business affects commerce for the purposes of the Act. In view of the plenary nature of the legislative power over commerce under Article I, § 8, Clause 3, and the manifest intention of Congress here to exercise that power to its fullest extent, it is clear from the record now before the Commission that respondent is engaged in a business "affecting commerce" and that complainant is now entitled to a finding accordingly, and to denial of respondent's motion to dismiss.

III

The finding that respondent is engaged in a business affecting commerce within the meaning of § 3(5) of the Act has further significance. That finding establishes it as the law of [*59] the case that the Commission has jurisdiction under § 10(c) over the subject matter of the complaint herein. Whether or not complainant made a cross motion for such relief, he is now entitled to an order accordingly, which will eliminate that issue from the matter to be tried out on ths final evidentiary hearing. Stein v. Oshinsky, 348 F.2d 999, 1002 (CA 2 1965); Time Incorporated v. Bernard Geis Associates, 293 F. Supp. 130, 133 (SDNY 1968); Highway Truck Drivers and Helpers Local 107 v. Roadway Express, Inc., 266 F. Supp. 868, 869-70 (ED Pa. 1966); Hennessey v. Federal Security Administrator, 88 F. Supp. 664, 668 (Conn. 1949); Northland Greyhound Lines v. Amalgamated Assn. 66 F. Supp. 431, 433 (Minn. 1946).

FINDINGS

1. Respondent is and at all material times has been a corporation organized and existing under the laws of the State of Wisconsin, having a place of business at 6200 West Center Street, Milwaukee, Wisconsin.

2. Respondent is and at all material times has been engaged in the business in dealing in building materials, including lime, cement, firebrick and sewer pipe. It sells these products from six yards located [*60] in the metropolitan area of Milwaukee within the State of Wisconsin. As of the close of calendar year 1971, respondent's annual accounting period last past, the gross value of the assets of respondent employed in this business was $1,015,150.25 and the gross receipts of the business for said year were $2,173,011.16. Some of respondent's business consisted of reselling goods in the form in which it had purchased them and some consisted of using the goods purchased in the manufacture of goods for resale e.g., ready-mix concrete. Of the total goods which it purchases in the conduct of that business, respondent purchases between ten and fifteen percent outside the State of Wisconsin.

3. As here pertinent, the acts with respect to which the complainant issued a citation to respondent are as follows. On March 15, 1972, respondent, in the regular course of its business, was delivering a truckload of mortar and lime from one of its yards in Wisconsin to a customer at another location in Wisconsin. During the delivery the crane boom on respondent's truck touched power lines or came in close proximity thereto so that electricity passed from the power lines through the crane [*61] boom, causing injuries to the operator of the truck, Douglas Kapperman, as a result of which Kapperman died. At all material times Kapperman was an employee of respondent in its business.

CONCLUSIONS

1. At all material times respondent was engaged in a business "affecting commerce" and employing "employees" therein, within the meaning of the Occupational Safety and Health Act of 1970, § 3, Subsections 3, 5 and 6, 29 USC § 652(3), (5) and (6). In that the sale and delivery of the goods referred to in the complaint were made in the regular course of that business, such sale and delivery affected commerce, whether or not the goods had their origin in Wisconsin and whether or not in Wisconsin they were purchased by and delivered to respondent.

2. § 10(c) of the Act, 29 USC 659(c), confers on the Commission jurisdiction over the subject matter of the complaint herein.

ORDER

1. Respondent's motion to dismiss the citation for lack of jurisdiction in the Commission is denied.

2. There will be a final evidentiary hearing herein on the allegations and denials set forth in the paragraphs of the complaint and [*62] answer herein numbered II(b), III(b), IV(a), (b) and (d), and V(a) and (b).