SCOTTY SMITH CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 5510

Occupational Safety and Health Review Commission

November 1, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge George W. Otto, dated June 7, 1974, 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: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in this disposition of the case. The serious violation warrants discussion. The Administrative Law Judge committed error by applying common-law concepts of "master" and "servant." Brennan v. Gilles & Cotting, Inc., & O.S.H.R.C., No. 73-2471 (4th Cir. October 18, 1974). But the error was not prejudicial because he nevertheless concluded that the worker in question remained an employee of the Scotty Smith Construction Company (hereinafter referred to as Scotty Smith). This conclusion is consistent with the "economic realities" of the situation, and it is consonant with the achievement of the statutory purpose. Brennan v. Gilles & Cotting, Inc., & O.S.H.R.C., supra.

Scotty Smith was a general contractor engaged [*2] in the construction of additions to a YMCA building in Sheboygan, Wisconsin. The cement work was subcontracted by Scotty Smith to Vern Lieding. In order to fill certain concrete footing forms, it was necessary to use a crane carrying a cement bucket to reach the concrete mold forms. A crane and its operator were leased by Scotty Smith for this purpose. Scotty Smith's foreman discussed the location of the crane with its operator, and it was agreed to locate the crane under four power lines carrying about 4,000 volts. The lines were about 20 feet above the ground. The crane boom moved from a nearby cement truck where the bucket was filled to the foundation wall where the cement was poured. The possibility of contact by the crane with the power lines was discussed by Scotty Smith's foreman with the crane operator. The foreman was aware that there were no insulating barriers; no grounding of the wires; and the wires were not de-energized.

After the pouring of the cement began, Mr. Lieding became ill, and asked Scotty Smith's foreman if he would supply an extra man as he was going to leave. The foreman asked Randy Liebelt to assist in the work. Randy Liebelt was later [*3] electrocuted while working with the bucket when the boom came into contact with the wires.

Scotty Smith was cited for a violation of 29 CFR 1926.550(a)(15)(i) that specifies a minimum clearance between power lines and cranes. At the hearing, Scotty Smith argued that Liebelt was a "borrowed" servant of the subcontractor and that Scotty Smith had no control over the subcontractor's actual performance of the work. It had only end-product or "blueprint" control. The Judge properly rejected this argument because there was no basic change in the employment relationship between Liebelt and Scotty Smith when Liebelt was helping the subcontractor because Liebelt still took directions from Scotty Smith's foreman.

In reality, Scotty Smith controlled the practical means of making this workplace safe from the hazard of the crane coming into contact with the energized power lines. Scotty Smith rented the crane and its operator, and determined where the crane would be worked.

Consideration of the means of abatement is critical to the drafting of an effective abatement order under section 9(a) of the Act. Cf. Martin Iron Works, Inc., No. 606 (July 1, 1974) (dissenting opinion). Under [*4] these circumstances, Scotty Smith should be considered Liebelt's "employer" for the purposes of section 5 and section 9 of the Act, even if Liebelt were a "borrowed" servant of the subcontractor at common law.

As the Fourth Circuit cogently observed in Gilles & Cotting, the statutory terms of "employer" and "employee" are drawn in terms of Congressional power to regulate interstate commerce and do not require adherence to a common-law employer-employee relationship in the application of the Act. To the same effect, see Martin Iron Works, supra (dissenting opinion). What is vital is a realistic application of the terms in light of the statutory purpose of providing safe employment.

[The Judge's decision referred to herein follows]

ORRO, JUDGE: This is a proceeding under the Act (29 USC 651 et seq. ) to resolve the issues related to one alleged serious violation and one alleged non-serious violation following investigation of a fatality and following inspection of a masonry saw on October 5, 1973. Respondent denies any violation and contends that if there was a violation the related penalty was excessive and should be reduced. Hearing was held at Milwaukee, [*5] Wisconsin on March 27, 1974.

The Complainant alleges a serious violation of 29 CFR 1926.550(a)(15)(i) with a proposed penalty of $750 (Citation October 25, 1973, item no. 1, Complaint IV, VI).

In a second citation issued October 25, 1973, Complainant alleged a non-serious violation of 29 CFR 1910.215(b)(10(v). At the hearing Complainant first moved to include 29 CFR 1910.215(b)(5) as an added standard but then withdrew the two standards and in lieu thereof alleged violation of 29 CFR 1926.700(a) with reference to ANSI standard A10.9-1970, Section 12.3 (Tr.8,9) and withdrew the proposed penalty of $75 (Tr.4).

Scotty Smith Construction Company was the general contractor in the construction of additions to a YMCA building in Sheboygan, Wisconsin. Handball courts were being added on the north side, a swimming pool addition on the southwest side and a new gymnasium on the west side (Tr.82). Randy Liebelt suffered an injury on October 4, 1973 when electrocuted while working at a foundation wall adjacent to the swimming pool addition on the southwest side (Tr. 38, 39, 82). The fatal accident occurred while cement was being poured into foundation forms from a bucket attached to a crane [*6] which came in contact with energized overhead power lines (Tr.40, 41, 61, 63, 64). Complainant charged Respondent with a serious violation following investigation of this accident.

The non-serious violation charged followed inspection of a masonry saw, Complainant contending the guard was inadequate and did not cover the saw blade sufficiently to conform to the standard cited.

Citation item 1: 1926.550(a)(15)(i) provides:

Except where electrical distribution and transmission lines have been de-energized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with the following:

For lines rated 50 kV. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet.

Respondent employees constructed the cement forms for the foundation walls under Respondent's contract to pour the cement (Tr. 22). For a month before the accident, these employees did not pour cement because the employees of the supplier were on strike (Tr.96). [*7] Randy Liebelt was not a union member since he had worked for only nine days (Tr. 96, Complainant's Exhibit 3). The cement work was subcontracted by Respondent to Vern Lieding (Tr.22, 24).

A crane and crane operator were leased by Respondent from a crane rental company (Tr. 21). Robert Freye, Respondent construction foreman since 1957, ordered the crane sent out on October 4 and after discussion with the crane operator, they agreed to its location just north and under four power lines carrying about 4,000 volts (Tr.23, 27, 28). The lines were about 20 feet above the ground (Tr.26). Although not ordered by the foreman, a cement truck appeared, and it was assumed it had been ordered by Vern Lieding (Tr. 23). The crane boom on October 4 moved from the cement truck where the bucket was filled to the foundation wall where it was poured and in so doing at all times was operating underneath the electrical power lines for about four hours and was coming within about 5 feet or so of the power wires (Tr. 29, 30). The possibility of contact was discussed by the foreman and crane operator, the foreman was aware a part of the crane could make contact with the power lines, there were no [*8] insulating barriers and no grounding of the wires, and they were not de-energized (Tr.31, 32, 33, 91).

On October 4, Vern Lieding and two of his employees began pouring cement. Mr. Lieding became ill and asked the foreman Robert Freye if he would supply him with an extra man and said he was going to leave. The foreman asked or ordered Randy Liebelt to go over and assist in the work (Tr. 38, 39). There was no conversation regarding wages (Tr. 52). The foreman told Randy Liebelt to go over and help pour the concrete and Liebelt did not object (Tr. 55). This was the first arrangement of this type between the Respondent and the subcontractor (Tr. 57). On occasion Respondent employees assisted in tasks such as unloading trucks when material came in (Tr.96).

Gordon Krohn, a compliance officer employed by Complainant, investigated the accident and testified a violation resulted in that the crane boom was closer than 10 feet to the electrical lines, that Randy Liebelt was working with the bucket on the end of the boom and was electrocuted when the boom came in contact with the wires (Tr.64-68). A penalty of $750 was reached by reducing the maximum $1,000 penalty by 25 percent, [*9] including 5 percent based upon Respondent's size and 20 percent based upon favorable past history. No credit was given for good faith because the compliance officer stated it appeared the employer realized a hazardous condition did exist and did not take steps to correct it (Tr.68, 69).

In evaluating the evidence, it is clear the above standard was violated, that minimum clearance of 10 feet was not maintained between the electrical lines and any part of the crane or load, that there was a substantial probability that death or serious physical harm could result from the condition which existed as evidenced by the fatality which was a natural consequence of the violation.

Assessment of a penalty in the sum of $750 reflects the gravity of the violation after crediting the Respondent with adjustment based upon the size of the business and the absence of history of previous violations, with no adjustment for good faith.

There remains the question of employer-employee relationship, whether after commencing work on October 4 for the Respondent Randy Liebelt remained in that relationship until his fatal accident or whether after working a short period his status was changed to that of [*10] an employee loaned to the subcontractor Lieding. It is emphasized that any finding made or conclusion declared in this decision shall not affect any workmen's compensation rights, duties or liabilities in any area other than that established under the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ). Section 4(4) of the Act provides:

Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities or employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

Although the right of direction and control is generally considered the most significant factor in determining the employer-employee relationship, where a loaned employee status results there are other factors to consider. The court in Nepstad v. Lambert, 255 Minn 1, 50 NW (2) 615 (1951) considered the test of which employers' business was being done or furthered as practically valueless where by doing the job the workers were necessarily furthering [*11] the business of both employers. In Rhinelander Paper Company v. Industrial Commission, 206 Wis. 215, 239 NW 412, the court stated "It is quite generally agreed that in order to transfer liability from the general employer to the one to whom the employee is loaned, there must be some consenual relationship between the loaned employee and the employer whose service he enters, sufficient to create a new employer-employee relationship. Consent cannot be inferred merely from the fact that the employee obeyed the commands of his employer in entering the services of another." Some act of participation on the part of the employee in the creation of a new relationship is required, to prevent a "fugitive" employer-employee relationship as far as the employee is concerned. In this case Randy Liebelt was doing nothing more than following the orders given to him by Respondent's foreman, who had given him other orders at the start of work on October 4 and prior thereto. There was no more change in the relationship between the Respondent and the injured employee than there was between the Respondent and its employees who from time to time assisted in unloading material from trucks. [*12]

Active rather than passive participation in the change of status is required by the employee because he is entitled to know his employer. Otherwise, among other consequences, it might result that he transferred from an employer insured under a Workmen's Compensation Act to an employer either not subject to the Act or uninsured.

Citation item 6.

Complainant contends that the amended standard now allegedly violated is less strict and does not add a greater burden and provides for a smaller guard than the initial standard cited. Respondent objects to the amendment of the complaint, claiming that originally the standard cited an alleged violation of a guard for a cutting saw rather than the final allegation of failure to provide a proper guard for a masonry saw.

29 CFR 1926.700(a) provides:

All equipment and materials used in concrete construction and masonry work shall meet the applicable requirements for design, construction, inspection, testing, maintenance and operations as prescribed in ANSI A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work.

Complainant contends the masonry saw failed to comply with the requirements of ANSI A10.9-1970 Section [*13] 12.3 in that the saw was not guarded by a semi-circular enclosure over the blade. Even assuming the validity of the incorporation of the ANSI section referred to, there was no violation. Complainant's Exhibit 2 reveals a guard covering 165 degrees of the blade and this is sufficient to constitute a semi-circular enclosure. If a 180 degree enclosure was required, the standard should have so stated. A semi-circular enclosure approximates 180 degrees enclosure and 165 degrees is within such approximation. The record is barren of any hazard created by the absence of 15 degrees.

FINDINGS OF FACT

1. The employer at all times relevant was engaged in a business affecting commerce among and between states.

2. Randy Liebelt suffered a fatal injury on October 4, 1973 when electrocuted while engaged in activity associated with pouring cement from a bucket attached to a crane.

3. The injury was the proximate result of the crane operating with less than 10 feet clearance between overhead electrical distribution and transmission lines and any part of the crane or load.

4. The lines carried about 4,000 volts, were not de-energized, were not visibly grounded at the point of [*14] work and there were no insulating barriers.

5. The crane operation with clearance of less than 10 feet between the electrical lines and any part of the crane or load was established by and continued by the Respondent for several hours prior to and until the time of injury.

6. There was a substantial probability that death or serious physical harm could result from the condition which existed while the crane was operated with insufficient clearance in relation to the electrical lines.

7. At time of injury Randy Liebelt was subject to the direction and control of the Respondent, had not consented to a change of employer-employee relationship and was engaged in the performance of assigned duties in furthering the interests of the Respondent.

8. Considering factors of size of the Respondent's business, gravity of the violation, the consideration of good faith and history of previous violations, a penalty of $750 is assessed.

9. Respondent owned and operated a masonry saw equipped with an enclosure covering 165 degrees of the blade, which constituted a semi-circular enclosure.

CONCLUSIONS OF LAW

1. At all times relevant Respondent was an employer within the meaning of 29 USC [*15] 652(5).

2. Randy Liebelt was an employee of Respondent at time of fatal injury on October 4, 1973.

3. Respondent failed in its duty under 29 USC 654(2) by serious violation of occupational safety and health standard 29 CFR 1926.550(a)(15)(i). A penalty of $750 is assessed.

4. Respondent did not fail to comply with occupational safety and health standard 29 CFR 1926.700(a).

ORDER

Pursuant to 29 USC 661(i) this decision shall become the final order of the Commission within 30 days after the date such decision is issued, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

In the absence of such review, Respondent shall pay to the Secretary of Labor for deposit into the Treasury of the United States the sum of $750 pursuant to 29 USC 666(k).