Docket No. 1141

WAYNE TAYSOM & ELI TAYSOM, d/b/a TAYSOM CONSTRUCTION COMPANY

OSHRC Docket No. 1141

Occupational Safety and Health Review Commission

February 12, 1975

а [*1] а

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners. а

OPINIONBY: MORAN

OPINION:

а MORAN, CHAIRMAN: An October 17, 1973, decision of Review Commission Judge Henry C. Winters, in a proceeding initiated under the Occupational Safety and Health Act of 1970, n1 is before this Commission for review pursuant to 29 U.S.C. з а 661(i).

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n1 29 U.S.C. з а 651 et seq., 84 Stat. 1590.

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Having fully examined the record, we find no prejudicial error therein. а Accordingly, we affirm the Judge's disposition of this matter. а

CONCURBY: VAN NAMEE

CONCUR:

а VAN NAMEE, COMMISSIONER, concurring: The issue on review is whether the Judge gave inappropriate weight to the gravity of the violation such that he assessed an inappropriately low penalty. а In reaching his determination to assess $300 rather than the proposed penalty of $700 the Judge noted a cement truck driver not employed by Respondent and not under his control directly affected the gravity of the violation. а Indeed, it was the driver who moved the load on a crane into such position that contact а [*2] а was made with an energized line and it was he who was more affected by the gravity. Thus, if the gravity was thereby increased such increase should be charged to the employer of the driver. It should not, as the Judge determined, be charged to this Respondent. а I therefore concur in affirmance of the Judge's disposition. а

DISSENTBY: CLEARY

DISSENT:

а CLEARY, COMMISSIONER, dissenting: A statement of the facts on which respondent was found to be in serious violation of the job safety and health standard published at 29 CFR а з а 1926.550(a)(15)(i) n2 and assessed a $300 penalty may be useful in considering the appropriateness of the penalty.

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n2 The standard provides that a minimum clearance of 10 feet be maintained between energized power lines and any part of a crane or load.

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Respondent, a partnership, was engaged in the construction of a concrete bank vault in Hailey, Idaho on May 22, 1972. а Respondent's crane was unloading cement from a cement truck (neither owned nor operated by respondent) for the vault under construction [*3] а by means of a large bucket suspended by cable from a retractable boom. The cement-filled bucket was swung to a position over the vault for unloading. а Four loads had been moved in this way without incident, but on the fifth load, the end of the boom came into contact with a 12,000 volt energized over-head power line. The truck driver, who had been maneuvering the bucket into position, was killed instantly when the electric current traveled down the cable and through the bucket. The truck driver was not an employee of respondent.

Thereafter, a citation alleging the aforementioned serious violation was issued, and a $700 penalty was proposed. а After finding a serious violation of the Act, the Judge imposed a $300 penalty because the gravity of the violation was assertedly mitigated by respondent's supposed lack of control over the cement truck and truck driver; the truck driver decided where to park the cement truck; and the accident may not have occurred but for the truck driver's moving the bucket into place.

We fail to see the relevance of these reasons to the gravity of the violation. а In National Realty & Constr. Co., Inc., No. 85 (September 6, 1972), rev'd on other аа [*4] а grounds, sub nom. National Realty & Const. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973) we listed the four most important factors n3 in determining gravity: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any, and (4) the degree of and probability of such injury.

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n3 The list, however, is not exhaustive.

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Four of respondent's immediate employees were exposed to the hazard of electrocution. а The employees of the cement company а were also exposed. а The duration of the exposure was considerable -- enough time for four full pours.

No precautions against injury were taken. а The operator of the crane had never been instructed as to the proper clearance between a crane and a power line. Respondent's superintendent, who was present at the site when the accident occurred, never instructed the drivers of the two vehicles as to their safe placement. а Also, respondent had no safety program.

Finally, the degree of [*5] а possible injury was very high. а Any person touching a metal part of the crane would be severely injured or killed if the crane hit the power line. n4 The probability of an accident occurring is sufficiently real, as is evidenced by the facts in this case.

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n4 This factor is relevant both to the gravity and the seriousness of a violation.

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Respondent contended at the hearing that the accident "wasn't his fault" because the truck driver was an intervening physical cause of the accident. а While this fact may be relevant to private compensation and risk allocation in tort law, it is not relevant here. а Respondent's violation caused its own employees and others to be exposed to a severe hazard. а Respondent's crane operator brought the boom inside the ten-foot danger zone. а The truck driver's actions merely made a hazardous situation fatal.

Also, the fact that the cement truck was positioned by the truck driver does not affect the gravity of this violation. а The position of the crane, under respondent's control, not that [*6] а of the cement truck, is the most important factor in determining the probability of injury. а Also, respondent never requested that the truck driver park in a safer place.

For the foregoing reasons, I would affirm the proposed $700 penalty.

[The Judge's decision referred to herein follows]

WINTERS, JUDGE: This is an action brought by the Secretary of Labor under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq ) to affirm two citations, one alleging a serious violation and the other alleging five non-serious а violations, and to affirm proposed penalties totaling $1,090.

The citation for serious violation relates to a fatal accident occurring on May 22, 1972 at a construction site in Hailey, Idaho where Respondent was engaged in construction work and maintained a place of employment and worksite. The citation for non-serious violations relates to an inspection of the same worksite on May 24, 1972 by a compliance officer in the employ of the Secretary.

Citation for Serious Violation Number 1, issued June 15, 1972, alleges that at the aforementioned worksite and place of employment the Respondent violated the Act in the following respects: а [*7] а

Standard or Regulation allegedly violated -- Description of alleged violation

29 CFR 1926.550(a)(15)(i) -- May 22, 1972: The boom on the self propelled twenty (20) ton P. H. Crane located at the Bank of Idaho construction site was not operated in such a manner as to keep ten (10) feet or more from the 7200 volt power line at all times.

Citation Number 1, issued June 15, 1972, alleges that at the aforementioned worksite and place of employment the Respondent violated the Act in the following respects:

Item No. -- Standard or Regulation allegedly violated -- Description of alleged violation.

1. -- 1926.450(a)(9) -- May 24, 1972: The eleven (11) foot ladder to the bank vault top does not extend above the vault top.

2. -- 1926.450(a)(10) -- The eleven (11) foot ladder to the bank vault top is not secured.

3. -- 29 CFR 1903.2(a) -- Failure to post official poster to inform employees of protections and obligations.

4. -- 29 CFR 1904.2 -- Failure to maintain a log of occupational injuries and illnesses on Form OSHA No. 100.

5. -- 29 CFR 1904.4 -- Failure to maintain a supplementary record of occupational injuries and illnesses on Form OSHA 101 or acceptable alternative record. а [*8] а

а By Notification of Proposed Penalty, issued June 15, 1972, a penalty of $700.00 was proposed for the serious violation alleged in Citation for Serious Violation Number 1, and the following penalties were proposed for the non-serious violations alleged in Citation Number 1:

Item No. 1	$70.00
Item No. 2	70.00
Item No. 3	50.00
Item No. 4	100.00
Item No. 5	100.00

By letter dated July 10, 1972 to the Secretary's Portland, Oregon office, received July 11, 1972, the Respondent referring to "OSHA No. J.2710" and "OSHA-1 No. 54" states as follows:

In accordance with referenced citation, we hereby contest certain portions thereof. а All safety violations as pointed out by your personnel were corrected immediately.

In reply to the Complaint filed by the Secretary to affirm the two citations and proposed penalties, the Respondent filed its Answer by letter dated July 31, 1972 and filed herein August 7, 1972, stating:

Prior to date of citation, we were not privileged to receive an issue of required Recording а [*9] а and Reporting Regulations and the Posting Regulations. а As the Recording, Reporting and Posting Regulations and necessary forms were not issued to Taysom Construction Company, we request this portion of non-serious violations be waived.

With respect to the serious violation, we request consideration be given for the immediate remedy instigated, our good faith in inspecting the involved crane and prior to further use completely replacing all cables. Also, our past history is one of exceptional safety value.

We respectfully request the above considerations be taken into account and our citation be amended accordingly.

"Item VI" and "Item VII" referred to in the above Answer are interpreted as referring to Paragraphs VI and VII of the Complaint, which paragraphs deal with Item Numbers 3, 4 and 5 of Citation Number 1.

а This case was heard by the undersigned Judge at Pocatello, Idaho on October 15, 1972. а Proposed findings and briefs were submitted by the parties, the final briefs being filed April 2, 1973.

Because it was not entirely clear what the Respondent intended to contest and because the Respondent was not represented by counsel, this Judge suggested to counsel for [*10] а the Secretary that if there was any doubt in his mind, he should assume that the whole matter is contested and put on the evidence.

DISCUSSION

The Alleged Serious Violation

On May 22, 1972, the Respondent partnership was engaged in the construction of a bank building in Hailey, Idaho. а The bank vault was to be a concrete structure. а An employee of Respondent was operating a hydraulic crane to move ready-mix cement from a cement delivery truck to the location of the vault where the Respondent was just beginning to pour the top. The crane was equipped with a retractable boom from which was suspended by cable a large bucket. The cement was unloaded from the truck into the bucket by a chute attached to the truck leading from the truck to the top of the bucket. The crane would lift the bucket full of cement from the ground, swing it over to a position directly over the forms on the vault where the bucket would be unloaded. а The bucket would then be moved back to the truck to be placed again in position on the ground so that the end of the chute from the truck would lead into it properly.

The boom on the crane would extend out some 60 feet from its base. а The boom of the crane would [*11] а rotate at its base, so that the crane operator, by extending or retracting the boom, by reeling in or letting out the cable, and by rotating the boom on its base, all in coordination, could move the bucket laterally in any direction from a place close to the base of the crane to a point farther away, or vice versa, and at the same time control the height above the ground of the bucket as well as that of the end of boom. The base of the boom rotated freely and it was possible for a person pushing on the hanging bucket to cause the whole boom to rotate.

а On the day in question some four bucket loads had been moved from the parked cement truck to the vault top without mishap. а However, when the bucket was being returned to the proper position on the ground to receive the fifth load, a point near the end of the boom came into contact with an overhead 12,000 volt energized electric power line. The current traveled down the cable, through the bucket and through the body of the cement truck driver who was pushing the bucket to locate it in the proper position for lowering. а The truck driver was killed instantly.

The crane was owned by the Respondent. а It was being operated by [*12] а a man who was employed by Respondent specifically to operate the crane on this particular job. а This operator was experienced in crane operation having done so for some ten years. а Because of a disability, the nature of which was not explained in this record, he had not worked for sixteen months prior to being hired by Respondent. а Before he was hired one of Respondent partners had him try out the crane to see if he could operate it. а One of Respondent partners instructed the operator as to the maintenance of the crane but there were no specific instructions given by any Respondent official to the crane operator as to the safe operation of the machine. а Respondent employed a superintendent who was at the job site at the time of the fatal accident. а One of Respondent partners explained that by hiring an experienced person Respondent expected such person to do his job properly without standing over him and telling him every move to make. а Respondent's managing partner was aware of the high voltage power line. The crane operator was made aware of the power line before he placed the crane in position to commence work.

The standard allegedly violated provides:

1926.550 Cranes and Derricks. а [*13] а (a) General Requirements. (15) Except where 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 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:

(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.

а The evidence in this case discloses that the power line carried 12000 volts and was not deenergized or grounded. а The crane was operated proximate to the power line without clearance of 10 feet between the line and any part of the crane or load.

The Respondent partnership is culpable in that it did not take reasonable steps to assure that the crane would not be operated within 10 feet of the high voltage power line. The operator was not informed of the requirements of the OSHA standard, despite the fact that a Respondent official knew the operator had not worked for sixteen months and should not be expected to be familiar with the recently [*14] а promulgated safety standards. а Respondent's superintendent should have but did not supervise the placement of the crane, although admittedly, because of the nature of the terrain and surrounding obstructions, there was very little discretion as to such placement. а More importantly, the superintendent should have but did not give specific instructions to the crane operator or to the driver of the cement truck as to where the trucks should be parked when it was being unloaded. а The superintendent could not be expected to stand by every minute of the time to see that his instructions were being followed but he should have at least issued specific initial instructions and Respondent partners should have issued specific initial instructions to the superintendent.

The fact that the boom of the crane may not have come into contact with the line if the truck driver who was not an employee of Respondent had not moved the bucket does not nullify a violation of the standard on the part of Respondent. а The driver in pushing the bucket could not have moved the boom more than a foot or two -- certainly not any distance approaching ten feet. The important fact to consider is that if the operator [*15] а had operated the crane in such a manner that no part of it was within ten feet of the line, then when the truck driver moved the boom a few feet there would have been no contact with the high voltage wires.

It is important to keep in mind that the violation of the standard presented a serious danger to the life and limb of the truck driver who was killed, but also of the crane operator and other employees of Respondent who might have had occasion to be in the vicinity of the crane.

а The conclusion is inescapable that there is a substantial probability that death or serious physical harm to Respondent's employees could result from the conditions which existed at the involved place of employment and that the Respondent partnership with the exercise of reasonable diligence should have known of the presence of the violation of the standard.

A serious violation having occurred, it is incumbent upon this Commission to assess a civil penalty, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer, the gravity of the violation, the good faith of the employer and the history of previous violations. а The size of Respondent's [*16] а business is relatively small. а There is insufficient evidence to conclude that Respondent partners were not acting in omplete good faith. а There is no evidence of past history of violation. а The gravity of the violation is affected by the fact that the truck driver, not under the direct control of Respondent, decided where to place the truck for unloading, and by the fact that there may not have been any contact with the power line at all except for the intervention of that driver in moving the bucket into place. а These are mitigating circumstances which do not excuse the violation but which lessen its gravity as to this Respondent partnership. Under all the attendant circumstances this Judge concludes that a penalty of $300 should be assessed for the serious violation, rather than the penalty of $700 as proposed by the Secretary.

The Alleged Non-Serious Violations

Item Number 1 involves an alleged violation of a standard which provides as follows:

1926.450 Ladders (a) General requirements (9) The side rails shall extend not less than 36 inches above the landing. а When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point [*17] а of access, shall be installed.

Item Number 2 involves an alleged violation of a standard which provides as follows:

1926.450 Ladders (a) General requirements. (10) Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.

а The evidence disclosed that there was a portable ladder extending from ground level to the roof of the bank vault some 10 feet up from ground level. а This ladder extended some six to twelve inches above the roof level, which is the landing. а No employee was observed using the ladder but at least one employee was on the vault roof and there appeared to be no other access. а Respondent had four employees at the construction site including the crane operator and the superintendent. The ladder was not tied, blocked or otherwise secured to prevent it from being displaced. а There is no credible evidence that this ladder was unstable so as to likely be displaced.

It is clear that the Respondent is in technical violation of the standards as alleged in Item Nos. 1 and 2. а Considering the criteria of Section 17(j) of the Act, particularly the low gravity of these two violations, this Judge concludes that no penalty [*18] а should be assessed.

Item Number 3 involves an alleged violation of a regulation which provides as follows:

з а 1903.2 Posting of notice; availability of Act, regulations and applicable standards.

(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. а Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. а Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

Since there is no evidence that an official poster was furnished to Respondent by OSHA, this item number of the citation should be vacated.

Item Number 4 involves an alleged violation of a regulation which provides as follows:

з а 1904.2 Log of occupational injuries and illnesses. а [*19] а

(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury а and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. а For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. а OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. а If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing [*20] а equipment, or both, under the following circumstances:

(1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.

(2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45-calendar days.

There is evidence that the Respondent did not have OSHA Form 100 at this particular worksite. There is no evidence, however, that Respondent had any recordable accidents or illnesses to include on such form if it were available. а It is obvious from reading Part 1904 as a whole and from examining the language of OSHA Form No. 100, that an employer is required to keep a log only with respect to occupational illnesses and injuries of that employer's employees. а The truck driver who was killed at this jobsite was not an employee of Respondent partnership. Nor is there substantial evidence to rule out that Respondent partnership had not maintained the require log of [*21] а occupational injuries and illnesses at some place other than this particular worksite, in accordance with the requirements. а Item Number 4 of the citation should be vacated.

Item Number 5 involves an alleged violation of standard which provides as follows:

з а 1904.4 Supplementary record.

In addition to the log of occupational injuries and illnesses provided for under з а 1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail а prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101. а Workmen's compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101. а If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

Since there is no evidence that Respondent partnership had received information that a recordable [*22] а case had occurred, this item number should be vacated.

In consideration of the entire record and of the proposals and briefs submitted by the parties, the Judge makes and enters the following:

FINDINGS OF FACT

1. а On May 22, 1972 and May 24, 1972 Wayne Taysom and Eli Taysom, a partnership doing business as Taysom Construction Company, Respondent, was engaged in construction work in Hailey, Idaho where Respondent employed seven persons.

2. а That on May 22, 1972 and thereafter the Respondent partnership was engaged in the use of equipment, materials and supplies brought to Respondent from points outside the State of Idaho and in the use of facilities of interstate commerce.

3. а On May 22 and 24, 1972 at the above-described worksite the Respondent failed to comply with standards promulgated by the Secretary in the following respects:

(a) The Respondent operated a crane proximate to a 12,000 volt power line without minimum clearance of ten feet between the line and any part of the crane, contrary to 29 CFR 1926.550(a)(15)(i) (Citation for Serious Violation Number 1);

(b) The Respondent failed to have a portable ladder extend not less than 36 inches above the landing, contrary to [*23] а 29 CFR 1926.450(a)(9) (Item Number 1 of Citation Number 1);

(c) The Respondent failed to have a portable ladder tied, blocked or otherwise secured to prevent its being displaced, contrary to 29 CFR 1926.450(a)(10) (Item Number 2 of Citation Number 1).

4. а There was a substantial probability that death or serious physical harm could result from the conditions found in а paragraph 3(a) of these Finding of Fact to be contrary to 29 CFR 1926.550(a)(15)(i).

5. а The instances of non-compliance mentioned in paragraphs 3(b) and 3(c) of these Findings of Fact had a direct and immediate relationship to safety and health but were not of a serious nature.

6. а At all times herein pertinent, the Respondent has acted in good faith.

7. а Respondent has no history of past violation.

8. а Each instance of non-compliance found herein to have existed has been corrected.

CONCLUSIONS OF LAW

1. а At all times herein pertinent, the Respondent was and is engaged in a business affecting commerce and subject to the provisions of the Act.

2. а This Commission has jurisdiction of the parties and of the subject matter of this case.

3. а With respect to item number 3, 4 and 5 of Citation Number 1 the [*24] а Secretary has failed to prove a violation of the Act and these item numbers and any penalties proposed therefor should be vacated.

4. а The instance of non-compliance referred to in paragraph 3(a) of Findings of Fact constitutes a serious violation of a standard promulgated pursuant to section 6 of the Act and subjects the Respondent to the assessment of a civil penalty as provided in Section 17(b) of the Act.

5. а The instances of non-compliance referred to in paragraph 3(b) and 3(c) of Findings of Fact constitute non-serious violations of standards promulgated pursuant to Section 6 of the Act and subject the Respondent to assessment of civil penalties as provided in Section 17(c) of the Act.

6. а Due consideration having been given to the appropriateness of the penalties with respect to the size of the business of Respondent, the gravity of the violation, the good faith of the Respondent and the history of previous violations, the following penalties should be imposed for the violations found to have existed: а

Citation for Serious Violation Number 1	$300.00
Citation Number 1
Item Number 1	none
Item Number 2	none

ORDER

In view of the foregoing Findings of Fact [*25] а and Conclusions of Law, it is ORDERED:

(1) Citation for Serious Violation Number 1, issued June 15, 1972 be, and it is hereby, affirmed;

(2) Item Numbers 1 and 2 Citation Number 1, issued June 14, 1972, be, and they are hereby, affirmed;

(3) A civil penalty of $300.00 be, and it is hereby, imposed upon Wayne Taysom and Eli Taysom, a partnership, doing business as Taysom Construction Company, for the violation alleged in Citation for Serious Violation Number 1, issued June 15, 1972; and

(4) Notification of Proposed Penalty, issued June 15, 1972, to the extent it proposes a penalty in excess of $300.00 for the violation alleged in Serious Violation Number 1, issued June 15, 1972 and to the extent it proposes any penalty for the violations alleged in Citation Number 1, issued June 15, 1972, be and it is hereby, vacated.