UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS 13946 & 14056
D & R BUILDERS AND R. P. MATZINGER D/B/A M & M READY MIX,
Respondents.

February 7, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge’s decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge’s decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975–76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge’s decision is accorded the significance of an unreviewed Judge’s decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DATED: February 7, 1977

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

(SEAL)

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the affirmance of the citation in Docket No. 13946. However, I would vacate the citation in Docket No. 14056 because the Judge’s finding that M & M Ready Mix did not possess the ‘prerequisite knowledge’ requires vacation of the citation rather than a mere reduction in the severity of the charge from serious to nonserious. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Morris’ decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS 13946 & 14056
D & R BUILDERS AND R. P. MATZINGER D/B/A M & M READY MIX,
Respondents.

FINAL ORDER DATE: July 1, 1976

APPEARANCES:

James H. Barkley, Esquire, Office of Henry C. Mahlman, Associate Regional Solicitor, U. S. Department of Labor, Denver, Colorado, for the Complainant,

Lyman H. Bennett, Jr., Esquire, Bennett & Bennett, Attorneys at Law, of Bozeman, Montana, for Respondent D & R Builders, Inc.,

Joseph B. Gary, Esquire, Landoe & Gary, Attorneys at Law, of Bozema n, Montana, for Respondent R. P. Matzinger d/b/a M & M Ready Mix.

DECISION AND ORDER

Morris, Judge:

Citations allege violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter, the ‘Act’). Complainant asserts the violations occurred June 12, 1975. Separate citations were issued June 25, 1975.

A notice of contest was received by complainant from D & R Builders, Inc., (D & R), on July 2, 1975; a similar notice was received from R. P. Matzinger, d/b/a M & M Ready Mix (M & M), on July 7, 1975.

The citation in each case alleges a serious violation of 29 CFR 1910.180(j)(1)(i) and it reads:

On or about June 12, 1975, at the M & M Ready Mix Plant in Belgrade, Montana, an employee was working with and in close proximity to a Prentice clam (D600) log heel boom truck crane operating less than 10 feet from an energized electrical distribution and transmission line operating at 7200 volts which had not been de-energized and grounded or provided with insulating barriers to prevent physical contact with the line.

Proposed civil penalty each case: $500.

The cited standard reads:

§ 1910.180 Crawler locomotive and truck cranes.

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

JURISDICTION

Respondent M & M owns 14 trucks and employs 10 persons in a ready mix concrete business (Tr. 38, 39, 42). The trucks, which cost a substantial sum, are manufactured in various states including Michigan, Kentucky, Colorado, and Idaho (Tr. 39, 60).

The first issue for determination is whether the Commission has jurisdiction over M & M. In short, does respondent M & M engage in a business affecting commerce? Section 652 of the Act defines ‘commerce’ as:

‘. . . ‘trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof, or within the District of Columbia, or a possession of the United States (other than the Trust Territory of the Pacific Islands), or between points in the same State but through a point outside thereof . . ..’

Section 651(a), the Congressional findings and purposes of the Act, indicates:

‘. . . Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in items of lost production, wage loss, medical expenses, and disability compensation payments.

Section 651(b) declares:

‘. . . it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . .’

These congressional findings and declarations indicate an intent to vest the broadest jurisdictional scope constitutionally permissible under the commerce clause. Section 652 does not rely upon the common test of ‘engaging in interstate commerce’, but seeks a broader scope by defining an employer as a person engaged in a business ‘affecting commerce’ and having employees. Judicial interpretation of the term ‘affecting commerce’ indicates it includes transactions or goods moving directly in interstate commerce, and further includes indirect activities which in isolation might be deemed to be merely local, but which nonetheless affect commerce, N.L.R.B. v. Suburban Lumber Company, 121 F.2d, 823 (3rd Cir., 1971; 50 ALR 2d, 1228, 1235). In this case respondent uses in its business trucks manufactured in other states. The transportation of such equipment and its subsequent use by respondent’s employees in the course of respondent’s business are sufficient to ‘affect commerce’ thereby conferring jurisdiction on the Commission as to M & M. To like effect see Secretary v. Billings Heights Construction Company, Docket No. 7246, 20 OSAHRC 276.

Respondent D & R admits coverage (Tr. 15–16, 20, 21, 27, 31, 168).

EVIDENCE

On the date of this accident M & M requested D & R to break out a septic tank from M & M’s mold and move it elsewhere on M & M’s property (Tr. 33, 44–45, 62). This request had never been made before; the owners (friends) did not discuss compensation. D & R was working several blocks away constructing a house (Tr. 33–35, 45, 60, 61, 65).

D & R used a modified truck crane, known as a Prentice loader (D600 clam lock heel boom truck) to break out the tank (Tr. 32, 134, 135). M & M did not direct placement of the tank (Tr. 46, 50, 63, 99). The M & M property offered ample space to place the tank in the open area of some two hundred feet between the forms and the power lines. However, D & R attempted to deposit the tank under the power lines and adjacent to reject tanks left by a prior manufacturer (Tr. 44, 47–49, 56, 70, 139; compl’s. ex. 1).

Montana Power Company maintains 25 to 30 foot high uninsulated power lines 40 feet from the railroad tracks. This line was not shut off or otherwise insulated with barriers (Tr. 70–71, 78, 84, 131, 134). A nearby sign warns of high voltage line danger (Tr. 79; compl’s. ex. 5).

The M & M plant manager saw D & R’s truck under the power line. He observed the 20 to 30 foot crane boom contact the power line causing the death of Robert Cooper (Tr. 72, 86, 87, 98).

An M & M employer had been instructed to assist D & R remove the cables (Tr. 86–88, 91, 101, 108). He could have been electrocuted if he had touched the cables (Tr. 109–110); he was at the site several minutes before the accident (Tr. 91–92).

HEARSAY

Respondents objected to the hearsay in complainant’s case establishing the amount of electricity in the power transmission lines at 7000 volts to ground and 14 Kv phase to phase (Tr. 114–115, 141).

In his post-trial brief complainant concedes the hearsay nature of the evidence but argues that proof of voltage is not a necessary element in establishing violation of a standard. In other words, no matter what voltage a transmission line carries, no crane equipment may come closer than 10 feet. When the voltage in the line increases the prohibited distance proportionately increases. In the alternative complainant argues that uncorroborated testimony is admissible and may prove an element in the case if it is not contradicted by other evidence. In support of these propositions complainant relies on Secretary v. Metro-Mechanical, Inc., No. 3518, 19 OSAHRC 89 and Secretary v. Milprint, Docket No. 513, 4 OSAHRC 1207.

The standard in issue prohibits cranes within ten feet where the lines are rated ‘50 Kv or below’. The wording of the standard renders the amount of electricity in a power transmission line irrelevant in the proof of a violation of Part 1910.180(j)(i). See, also, Ames Crane and Rental Service, Inc., infra. It is accordingly not necessary to rule on complainant’s alternative argument.

M & M contends none of its equipment came within 10 feet of the power line; in fact, none of M & M’s equipment could reach the power line. In addition M & M argues that it did not direct placement of the septic tank hence M & M could not reasonably anticipate the activities of D & R.

M & M’s principal arguments are misplaced. The standard does not restrict compliance to the operators of a crane. A violation occurred when the crane came within 10 feet of the power line and upon exposure of an M & M employee. He received instructions to assist D & R. Such assistance would include removal of the chains. He was present at the site before the accident; as stated in Secretary v. Frohlick Crane Service, Docket No. 890, 9 OSAHRC 531, 557–558: ‘The duty . . . to furnish a safe place to work is a duty personal to the employer and cannot be avoided by delegation to another.’

Complainant makes a colorable argument for a serious violation by asserting M & M could have anticipated D & R would deposit the tank in close proximity to the power line because other septic tanks were located in a similar position. In Secretary v. Winslow Crane Service, Inc., Docket No. 831, 3 OSAHRC 1023, 1042 (1972) the writer constructed the meaning of the 10 foot clearance distance required by Part 1910.180(j)(i) stating:

*4 The better view is that minimum clearance should include that area measured by drawing a line laterally 10 feet from the power line then intersecting the lateral line with a line drawn at right angles thereto and perpendicular with the ground. The line perpendicular to the ground should extend upward beyond the power line.

See Judge’s Design 2 attached to this decision (as it was attached to Winslow). The writer specifically rejected respondent’s contention in Winslow that the ten foot clearance should be calculated as that area encompassed by and measured on a 10 foot radii from the power line. (Illustrated in Judge’s design 1 attached to this decision.) On July 23, 1973 the three Commissioners of the Review Commission affirmed the decision without commenting on the 10 foot measurement. It accordingly became the safety requirement on that issue.

On September 27, 1974 complainant issued a field memorandum concerning this standard and subsequently modified the interpretation on November 21, 1974 to consider the ‘forbidden zone’ to be that zone within a 10 foot radii of any part of an energized power line. Further, no crane operator may pass any part of his crane or attached load over any energized power line. Using complainant’s designation his interpretation is attached hereto as ‘Design 1A.’ This Judge recognizes the interpretative rule-making authority of the Secretary and is not so presumptive as to overturn the Secretary’s determination. It accordingly follows that a crane operator may operate under a power line as in the instant case. In this circumstance respondent M & M could not have the prerequisite knowledge feature required by 29 U.S.C. 666(j).

The unfortunate continuation of electrocutions appears to illustrate the proposition that working with a crane under an energized power line can be exceedingly dangerous. In Secretary v. Lidstrom, Docket No. 3433, (March, 1976) Judge Alan M. Weinman reviewed a number of electrocution cases. Recasting these cases with a view to the position of the crane, or the equipment, we find:

Eller Brothers, Inc., Docket No. 406, 1 OSAHRC 638 [Removing large rock with a crane under a power line].

Winslow Crane Service, Inc., Docket No. 832, 3 OSAHRC 1023 [Removing blind flanges stored under power line].

Frohlick Crane Service, Docket No. 890, 9 OSAHRC 531, [Position of crane not factually developed as parties stipulated that a violation occurred].

F. F. Green Construction Company, Inc., Docket No. 1015, 5 OSAHPC 329, [Nearest wire transmission 35 feet from the centerline of the ditch and 29 feet above the ground].

Wayne Taysom & Eli Taysom, d/b/a Taysom Construction Company, Docket No. 1141, 15 OSAHRC 506, [Crane load within 10 feet of power line while unloading ready mix cement; exact position cannot be determined].

White Oak Corporation, Docket No. 1320, 10 OSAHRC 560, [Crane operator prepared to move crane from area and swung headache ball into high tension wires].

Weicker Transfer and Storage Company, Docket No. 1362, 15 OSAHRC 80, [Concrete closet units below were stored under a string of electrical wires].

Delmarva Power & Light Company, Docket No. 1416, 8 OSAHRC 685 [Relative positions not indicated but utility company was transferring conductors from 30 foot poles to 40 foot poles when boom struck energized line].

Devco Building Company, Docket No. 2536, 4 OSAHRC 1379, [Crane cable attached to gable stored under power line].

Ames Crane & Rental Service, Inc., Docket No. 2578, 18 OSAHRC 441, [Crane being operated apparently parallel and within 8 feet of power lines].

Butler Lime and Cement Company, Docket No. 855, 11 OSAHRC 819, [Apparently deceased unloading from under power line].

A & W Drill Rentals and Leroy Crandall and Associates, Docket No. 271 and 726, 13 OSAHRC 427, [Drill rig positioned underneath

Floyd S. Pike Electrical Contractor, Inc., Docket No. 3069, 15 OSAHRC 302, [As new transformer was raised into position hoist load line contacted energized line].

Lidstrom, Inc., Docket No. 3433, [Position not fully developed but crane apparently working parallel to power lines].

Query: In how many of the above cases would death or injury have occurred if the crane had not been under an energized power line? The placement, storage, and unloading of material under power lines constitutes a prerequisite to serious and often fatal injuries.

CIVIL PENALTIES

29 U.S.C. 666(i) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The Commission has repeatedly ruled that the purpose of monetary penalties is to secure compliance with the Act. Secretary v. Creguson’s Nursery, Inc., Docket No. 1646, 15 OSAHRC 451. In this case a friend attempted to accommodate a friend; in the process the son of one of the men was killed. Both respondents are small companies and have no prior adverse history. The assessments of a monetary penalty in this unique situation would not accomplish the Congressional purpose. On the other hand the Act requires a civil penalty under certain circumstances, 29 U.S.C. 666(b). Considering all the facts a civil penalty of $1.00 should be assessed.

The record establishes coverage of the Act and based on the essentially uncontroverted evidence the undersigned enters the following:

ORDER

Case Number 13946, D & R Builders:

1. Citation 1 is affirmed.

2. The proposed civil penalty of $500 is vacated and a civil penalty of $1.00 is assessed.

Case Number 14056, M & M Ready Mix:

1. Citation 1 is affirmed as a nonserious violation.

2. The proposed civil penalty of $500 is vacated and a civil penalty of $1.00 is assessed.

John J. Morris

Judge, OSAHRC