WHITE OAK CORPORATION
OSHRC Docket No. 1320
Occupational Safety and Health Review Commission
August 6, 1974
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
BY THE COMMISSION: This matter is before this Commission for review of a February 28, 1973, decision of Judge Abraham M. Gold pursuant to 29 U.S.C. § 661(i). At issue is whether the citation was issued with reasonable promptness as required by 29 U.S.C. § 658(a). We hold that the respondent waived consideration thereof at this level because that defense was not raised in the proceedings below. Secretary v. Chicago Bridge and Iron Company, We therefore affirm the Judges decision.
Chairman Moran would reverse for the reasons set forth in his dissenting opinions in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning Inc.,
[The Judge's decision referred to herein follows]
GOLD, JUDGE, OSAHRC: This action arose under Section 10(c) of the Occupational Safety and Health Act of 1970(84 Stat. 1590 et seq.; 29 U.S.C. 651 et seq. ) and came on for hearing on October 12, 13 and 26, 1972 at Hartford, Connecticut.
On August 1, 1972, pursuant [*2] to Section 9(a) of said Act, Complainant issued a citation alleging a serious violation and a citation charging 4 nonserious violations.
The citations allege that as a result of an inspection of a workplace under the ownership, operation, or control of Respondent, located at Crystal Avenue and Main Street, New London, Connecticut, involving construction of a box culvert, Respondent violated the Act by failing to comply with certain occupational safety and health standards.
A Notification of Proposed Penalty was issued on August 1, 1972, proposing an $800.00 penalty for the serious violation, no penalty for items #1 and #3 of the Citation for nonserious violations, $55.00 for item #2, and $285.00 for item #4. The total proposed penalty was $1,140.00.
Respondent has contested all alleged violations. The Complaint specifies:
(a) On or about July 14, 1972, the Respondent, White Oak Corporation, violated the standards set forth at 29 C.F.R. 1926.550(a)(15)(i) in that said respondent failed to maintain a minimum clearance of ten (10) feet between a crane boom and an electrical transmission line rated below 50 kV (Citation for Serious Violation).
(b) On or about July 14, [*3] 1972 the respondent, White Oak Corporation, violated the standards set forth at 29 C.F.R. 1926.550(a)(6) in that said respondent failed to maintain a record of inspections for P&H Crane #PS-51 (Citation, Item 1).
(c) On or about July 14, 1972 the respondent, White Oak Corporation, violated the standards set forth at 29 C.F.R. 1926.550(a)(9) in that said respondent failed to barricade accessible areas within the swing radius of the rear of the rotating superstructure of P&H Crane #PS-51 (Citation, Item 2).
(d) On or about July 14, 1972 the respondent, White Oak Corporation, violated the standards set forth at 29 C.F.R. 1926.550(a)(14)(i), (erroneously cited as 1926.550(a)(4)(i)), in that said respondent failed to provide an approved fire extinguisher in the cab of P&H Crane #PS-51 Citation, Item 3).
(e) On or about July 14, 1972 the respondent, White Oak Corporation, violated the standards set forth at 29 C.F.R. 1926.550(a)(15)(iv) in that said respondent failed to designate a person to observe clearance of equipment operated proximate to power lines and to give timely warning where it is difficult for the operator to maintain the desired clearance by visual means (Citation, [*4] Item 4).
The Complaint amended the non-serious Citation with Respect to item #3, correcting the designation of the standard allegedly violated.
Respondent is charged with violating the following standards contained in 29 C.F.R.:
§ 1926.550 Cranes and Derricks. (a)(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 rated 50kV. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet;
(Nonserious, item #1)
§ 1926.550(a)(6). A thorough, annual inspection of the hoisting machinery shall be made by a competent person, or by a government or private agency recognized by the U.S. Department of Labor. The employer shall maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment.
§ 1926.550(a)(9). Accessible areas within the swing [*5] radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.
(item #3) § 1926.550(a)(14)(i). An accessible fire estinguisher of 5BC rating, or higher, shall be available at all operator stations or cabs of equipment.
(item #4) § 1926.550(a)(15) . . . (supra)(iv). A person shall be designated to observe clearance of the equipment and give timely warning for all operations where it is difficult for the operator to maintain the desired clearance by visual means.
Section 5(a)(2) of the Act requires that each employer comply with occupational safety and health standards promulgated under the Act.
Section 17(k) declares that a "serious violation shall be deemed to exist in a place of employment 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 employment unless the employer did not, and could not with the exercise of reasonable diligence, [*6] know of the violation."
Section 17(b) provides that an employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.
Section 17(c) states that a civil penalty of up to $1,000 may be assessed for a nonserious violation.
Under Section 17(j) of the Act, the Review Commission shall have authority to assess all civil penalties after 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.
The parties stipulated on October 12, 1972 (Exh. J-1) that Respondent is and at all times pertinent herein has been a Connecticut corporation, with its principal office at Plainville, Connecticut, and a field office at New London, Connecticut; that Respondent regularly receives and handles materials and products which have moved across state lines in interstate commerce; that on July 14, 1972 John Kroeber, an employee of Respondent, was killed by electrocution at a worksite in the vicinity of Crystal Avenue and State Pier Road, New London, Connecticut; that [*7] Respondent is engaged in the vicinity of Crystal Avenue, New London, Conn., in the construction of a traffic interchange and approaches to two bridges which will span the Thames River on Interstate Highway 95; that the project will take about two years to complete and is valued at $30 million; that Respondent has about 150 employees at this worksite; that the average daily number of employees of Respondent in 1972 was 325; that Respondent is among the four largest Connecticut construction companies engaged in road building; that its annual dollar volume of business for the past year was $6,966,745; that Respondent is the owner of the crane designated as White Oak PS-51; and that on July 17, 1972 there was no fire estinguisher in the cab of White Oak PS-51, but there was a fire extinguisher in the cab of the truck upon which the crane was mounted, and later that day Respondent did comply with the requirement of a fire extinguisher in the cab of the crane.
John Barnes, a Compliance Officer, Occupational Safety and Health Administration (OSHA), Department of Labor, inspected the worksite on July 14, 1972 (Tr. 1-29) and again on July 17, 1972 (Tr. 1-52, 53).
The alleged serious violation [*8] will be considered first. On July 14, 1972 Crane PS-51, owned by Respondent (Exh. J-1), was operated by Stanley Ouellette employed by Respondent as a crane operator (Tr. 2-141, 142). He had been a crane operator for 25-26 years (Tr. 2-142). His crew included John Kroeber, an oiler; others in the crew were Frank Pelletier (foreman), Reno Dumond and Lyman Tirrell, all of whom were working in the area of the crane (Tr. 2-142). By 9:00 a.m. the crew had put in the necessary sheeting at the worksite, the box culvert at Crystal Avenue, New London, Connecticut, and prepared to move out of the area (Tr. 2-143, 144).
The crane was about 60 feet from the edge of Crystal Avenue (Exh. R-5). Directly in front of the crane carrier, on the edge of the street, was a utility pole with electrical wires running along the edge of the street (Crystal Avenue) and across the street at an angle (Exhs. C-2, C-3). Wires extended from the top of the pole (Exhs. C-2, C-3), which measured 34 feet above street level (Tr. 2-36). The Voltage in the three wires going along Crystal Avenue was 13,200 and the same voltage was in the three wires crossing the street (Tr. 2-36). The boom of the crane [*9] was 100 feet long (Tr. 1-47). It was the testimony of the crane operator that in preparing to move the crane out of the area, he intended first to put the crane parallel to the truck (Tr. 2-144); that he started picking up the ball, lowering the boom from an 85-90 degree angle, and swinging the cab around, when he felt the rig giving way suddenly and listing to one side (Tr. 2-146); that he then lost control of the swing, and the boom went sideways and swung the ball into the high-tension lines (Tr. 2-146); that he felt a shock and jumped from the crane, leaving the crane in gear and moving (Tr. 2-146, 147).
He estimated that at the time he felt the crane lurch, the boom was probably at an 80 degree angle or so, and the ball was a good 20 feet from the wires (Tr. 2-147). The crane operator said that one or two minutes before the accident, when he last saw Mr. Kroeber, the oiler, the latter was standing on the sidewalk under the wires, but after he (the witness) picked himself up, he saw the oiler lying near the outrigger controls (Tr. 2-153-4, Tr. 2-173); that he observed that the outrigger pads on the left side of the crane had been lifted off the ground (Tr. 2-151), [*10] and he assumed that the oiler had lifted the pads (Tr. 2-152), because no one else ever touches them (Tr. 2-152). He asserted that he had not given instructions to the oiler to lift the outriggers (Tr. 2-150).
The oiler had worked for him either 2 or 3 weeks, testified Mr. Ouellette, and the oiler knew the hand signals, and on occasions had given hand signals and directions (Tr. 2-148).
Mr. Ouellette declared that when he has trouble observing distances between the crane and hightension wires he instructs one of the men to observe; that on the day prior to the accident he had the oiler perform that duty (Tr. 2-154-5).
According to the crane operator, at the time he felt the lurch, the angle of the boom was probably 70-80 degrees, the boom was about parallel to the wires, and the ball was 25-30 feet from the ground (Tr. 2-159-160); just a few seconds elapsed between the lurch and the time the wires were struck (Tr. 2-172); at the time of the accident the boom was heading straight for the energized wires and the cable would have been on the same line of sight between him and the wires (Tr. 2-177); he did not think it would have been difficult for him to judge the distance between [*11] the wires and the cable because he did not plan to boom down too far (Tr. 2-178-9).
He said that he did not feel that there was enough danger to have a lookout at the time because he could judge the distance between the ball and the wires "fairly close" (Tr. 2-174, 175).
Mr. Ouellette testified that as crane operator he has the primary responsibility for activities involving the crane; that before any worker can lift the stabilizers while the crane is in operation, the worker must get into the cab of the truck, start the engine and put in gear the pump for the hydraulic outriggers (Tr. 2-185-6); that the engine of the truck was running when he got up from the ground (Tr. 2-186).
At one point, Mr. Ouellette testified that with the boom at an 80 degree angle, the ball would probably be 30 or 35 feet from the wires, so that if he had completed his operation as intended, the ball would have been 30 to 35 feet from the wires (Tr. 2-183).
Lyman Tirrell, carpenter and pile driver, employed by Respondent for about 7 months, was a member of the crew (Tr. 2-187-8). He stated that at the time of the accident, he was standing by the forward outrigger on the left side of the crane; [*12] that his back was to the street, and he was facing the control panel; that when the accident happened he was standing, looking right at John Kroeber, who had his hands on the control and was lifting the two outriggers (Tr. 2-188-9); that he (the witness) did not know whether the crane was moving at the time because his back was to the body of the crane (Tr. 2-189); that his first knowledge of the accident was seeing a large spark, feeling a blow across his legs, and hearing a loud cracking noise, all at the same time (Tr. 2-191); that as he was watching, the oiler stiffened and just crumbled to the ground (Tr. 2-191). Mr. Tirrell asserted that the oiler had two fingers on the toggle buttons on the control panel.
Reno Dumond, employed by Respondent as a "monkey" on the same crew, testified that he was in the sanitation facility at the time of the accident, and did not see what happened (Tr. 2-199-200).
Francis Pelletier was employed by Respondent as foreman at that site. He is a member of a carpenters union (Tr. 2-205). He stated that when the accident occurred he was standing next to Mr. Tirrell, and had his back to John Kroeber and the control panel (Tr. 2-210); that [*13] he was not watching the boom of the crane (Tr. 2-211); that he saw a ball of fire coming out of the screw of the outrigger (Tr. 2-211); that he did not assign anyone to act as observer to watch the clearance between the crane and the wires, because the oiler is supposed to take care of that function automatically (Tr. 2-214).
It was the testimony of the foreman that he saw the oiler standing by the outrigger panel about to push the control buttons on the outrigger panel, but did not feel that there was anything wrong with his doing that (Tr. 2-210-211), because it is a matter between the oiler and crane operator (Tr. 2-211). He said that he is not in the Engineers Union, and has no right to stop an engineer on his work (Tr. 2-212); that he is certainly responsible for the safety of the operations of his crew (Tr. 2-212-213); that he has authority to stop any action that he considers unsafe; that he does not consider it a safe practice to lift the outrigger arms of a crane while the crane is operating (Tr. 2-213); that if he had seen him doing it, he could have done something to stop the oiler from moving the outriggers while the crane was operating (Tr. 2-214); that he does not [*14] know whether the engine was running or not (Tr. 2-215). Mr. Pelletier admitted that he had told the Compliance Officer that nobody was assigned to act as lookout when the crane was operating in proximity to wires (Tr. 2-216-217).
In other testimony, the foreman said that he saw the oiler standing at the control panel, but was unable to say that he actually saw him put his fingers on it because he did not pay that much attention to see what he was doing there; that he (the witness) was getting ready to pick up the pad, and as things happened, the oiler was lying on the ground (Tr. 2-220). He said that the oiler had been part of the crew probably two or three weeks, a month at the most (Tr. 2-220); and that he did not know what type of training the oiler had received prior to coming on the job, or if he had received any training at all (Tr. 2-224).
Leonard Mann testified that he is self-employed in the retail liquor business; that his store is on Crystal Avenue (Tr. 2-15); that on July 14, 1972, as he was about to put some soft drinks in the cooler located in front of the west window, he observed the end of the boom right over the middle of the street pointing south at [*15] about a 45 degree angle above the street (Tr. 2-16, 17); that the boom and the cable extending from the end of the boom were stationary, with the boom over the electric wires (Tr. 2-18), with the hook hanging just about below the wires (Tr. 2-20), no more than a couple of feet from the wires (Tr. 2-21); that his store was diagonally across the street from the crane, being right on the corner of State Pier Road and Crystal Avenue, no more than fifty or sixty feet from the wire pole (which was nearest the crane); that everything was absolutely stationary for only a matter of seconds, then the boom moved west, and the ball struck the wires which cross Crystal Avenue diagonally (Tr. 2-21, 22, 28); that there was a huge flash, then the boom lurched or quivered, and moved back and hit the wire again, and there was another flash (Tr. 2-22); that the boom slowly came down to rest on top of the pole (Tr. 2-22); that a man ran out from behind the crane and said that someone was hurt, whereupon the witness called the police (Tr. 2-23, 2-31).
Richard MacKay, Assistant Superintendent of Operations, Hartford Electric Light Company, testified that in order to prepare a report required [*16] by the Public Utilities Commission where there has been a fatality involving facilities of the company, he inspected the electric wires on July 14, 1972 (Tr. 2-23, 2-37); that all the wires in the vicinity of the crossarms at the top of the pole and all the hardware at the top of the pole were inspected; that the wires along Crystal Avenue were inspected; that the crossarms were bent down at about twenty or thirty degree angle, the crossarm braces were sheared, the tap on the field wire and the tap on the middle wire were burned, and the power was knocked out of all three lines; that he did not observe any burn marks on the street side wire; that the wires across Crystal Avenue were also inspected, and from the ground there was no visible evidence of any burn marks on those wires (Tr. 2-37-28); that in his opinion, those wires had been contacted by the crane.
The Area Director of the Hartford office of the Occupational Safety and Health Administration, Harold Smith, testified that he has operated small cranes; that he has been in a crane of the type involved in the instant case while it was being operated; that in his opinion it would be very difficult to observe the boom and the [*17] hook or ball at the same time if the boom is at a forty-five degree angle and the control cable or hook cable is hanging at a ninety degree angle from the horizontal and is below the height of the electric wires.
Mr. Barnes, the Compliance Officer, said that he first arrived at the site between 2:30 PM and 3:00 PM on July 14, 1972, accompanied by Louis Pellegrini, a State Inspector; that he discussed the accident with Mr. Olson, the General Superintendent of the project; that the crane operator, the crew foreman (Mr. Pelletier) and a crew member (Mr. Dumond) were brought in by Mr. Olson; that he (the witness) had a discussion with them; then Mr. Ouellette stated that he was swinging the crane back to the south towards Crystal Avenue in order to lock controls into position for moving the carrier and the crane when he felt a lurch, the ball struck the power lines, he immediately had a funny sensation as though he had been struck on the funny bone, he jumped out of the crane and yelled at the men to jump clear of the crane, he asked Mr. Pelletier to get him a piece of wood, Mr. Pelletier handed him a short-handled shovel, with which he manipulated the controls of the crane [*18] to raise the boom off the power lines and swing it away from the lines (Tr. 1-29-33).
Mr. Barnes also testified that he asked Mr. Pelletier if a person had been designated as lookout or signal man with respect to the crane operating in proximity to high tension wires, and that Mr. Pelletier had replied that no one was so designated (Tr. 1-51). He went on to say that he returned to the site on the following Monday morning (July 17) and made another inspection (Tr. 1-53).
It was the testimony of Mr. Barnes that Mr. Tirrell was not present during his investigation; that Mr. Pelletier said that he was crouched at the right forward outward rigger, and opposite him at the same outrigger was Mr. Tirrell (Tr. 1-148). Mr. Barnes stated that the crane operator told him that he did not know why the crane lurched, but assumed that the outriggers were moved (Tr. 1-165-166).
The Compliance Officer said that after he made a further inspection on July 17, 1972, accompanied by Superintendent Olson and Mr. Kart (Safety Director of Respondent), they all proceeded to the office and discussed his findings based on the accident investigation (Tr. 1-53).
Safety Director Warren Kart, employed [*19] by Respondent in that capacity since April 1, 1972, described Respondent's procedure for safety inspection of crane equipment. He said that if the master mechanic finds something wrong with the crane at the job site, he confers with his superintendent on the job, and if it cannot be repaired at the site, the crane is sent to the main shop at Plainville; there a work order is filled out, and the repairs made; before the crane leaves the shop, it is completely looked over by the shop superintendent (Tr. 2-266, 267).
Exhibits R-6 and R-7 show that White Oak Crane PS-51 underwent repairs in February 1972 at the Plainville shop. This crane is shown as having had a thorough inspection on July 15, 1972 (Exh. R-8), as reflected by Form 7-1/72, entitled "Mobile Crane Periodic Safety Inspection Record."
Respondent has presented several safety memoranda or notices (Exhs. R-9, 10, 11, 14, 15, 16, 17, 18, 19, and 20). Four are dated 1966, two are dated 1967, two are undated, and two are dated June 5, 1972 and June 12, 1972. As to the 1972 documents, one relates to a safety survey conducted at the site on May 31, 1972, by Mr. Kart and a representative of an insurance company, resulting in [*20] recommended changes; the other concerns a survey in June 1972, with additional recommendations.
Mr. Kart testified that the job under discussion started in March or April 1972; that he made no safety inspection of the job site prior to May 31, 1972 (Tr. 3-50).
Counsel for Respondent contends the Respondent should not be held accountable for the conduct of the oiler who, he claims, raised the hydraulic lifts of the crane without first securing the crane operator's permission to perform this procedure.
The only witness claiming to have seen the oiler lift the outriggers is a member of the crew, Lyman Tirrell.
The testimony of witness Tirrell need not be taken at face value. There may be such an inherent improbability in the statements of a witness as to induce the trier of the facts to disregard the testimony, even in the absence of any direct conflicting testimony. Quock Ting v. United States, 140 U.S. 417(1891). 11 S Ct. 733. A witness may be contradicted by the facts he states as completely as by direct adverse testimony. There may be so many omissions in his account of particular transactions, or of his own conduct, as to discredit his whole story. [*21] Catlett v. Chestnut, 107 Fla. 498(1933), 146 So. 241.
The interest of a witness in the outcome of the case, or absence of any such interest, may be considered as affecting the weight of his testimony. Woodward v. United States, 208 F. 2d 893(8 Cir. 1953). Rasmussen v. Gresly, 77 F. 2d 252(8 Cir. 1935). The fact that Mr. Tirrell is an employee of Respondent means that his testimony should be viewed with caution. However, this fact does not amount to impeachment. Arnall Mills v. Smallwood, 68 F. 2d 57(5 Cir. 1953).
In his testimony Tirrell said that his first knowledge of the accident was simultaneously seeing a large spark, feeling a blow across the legs, and hearing a loud cracking sound. Tirrell claimed that he saw the oiler raise the outriggers while he (Tirrell) was standing by the left forward outrigger, but he did not notice a movement of the outrigger and crane prior to or at about the time he saw the spark. Thus, Tirrell's testimony is self-contradictory. In addition, it is unreasonable that Tirrell did not immediately tell Ouellette and others in the vicinity that the oiler had moved the outriggers. When the Compliance Officer [*22] interviewed Ouellette on the day of the accident, he said that the crane had lurched and that he did not know why, but assumed that the oiler had lifted the pads. He told a similar story at the hearing. The foreman made no mention of Tirrell's version when he was interviewed by the Compliance Officer, or when he testified. Based on common experience in human conduct, Tirrell would be expected to inform his co-workers immediately after the tragedy (as part of the res gestae ), or at least shortly thereafter, that the oiler had moved the outriggers. His failure to do so, plus his self-contradictory testimony of first seeing the spark, rather than first seeing the outrigger or crane lurch, render Tirrell's story inherently improbable, and have induced this judge to disregard his testimony.
As to Ouellette, he is not only an employee of Respondent, but a supervisor charged with safety responsibility who may be exposed to civil suit because of the accident. Clearly, he has a strong interest in the outcome of this case. The liquor store operator has no such interest. His testimony was forthright, and has not been impeached by any of the modes known to the law. Respondent's counsel [*23] has attacked the testimony of witness Mann, claiming that his line of vision was blocked by a tree on Crystal Avenue. Photographic evidence of the scene discloses that the tree would not prevent the witness from having a clear view from his store (Exhs. C-3, R-1). This judge finds that Mann's testimony outweighs that of the crane operator. It is felt that the crane operator was trying to do too much at once, i. e., lower the boom, raise the ball, and swing the boom toward the high tension wires; that he misjudged the distances, and that he felt the lurch after the ball struck the wires.
Mann said that he estimated that the cable was about a couple of feet from the wires when he first saw the boom, and that the boom was then motionless; and that it moved slowly after a matter of seconds. The slow movement of the boom indicates that the crane operator was still in control of the crane up to the time of the first contact with the wires. On this record it is found that a minimum clearance of ten feet between the boom and the wires was not maintained, and that this failure was the fault of the crane operator and foreman.
The crane operator and foreman, in their supervisory [*24] capacities, were acting as mangement. They failed to exercise their responsibility of requiring an observer to assist the crane operator. The crane operator knew, or should have known, of the danger involved, and of the difficulty he would encounter in gauging the distances. The foreman admittedly saw the oiler near the controls, but did not order him to leave, and did not even bother to watch this inexperienced employee. This record shows that the crane operator and the foreman failed their duty to order the inexperienced oiler to act as observer. It is the contention of Respondent that the oiler is designated as observer in the Union Contract, Article XXIII, Section 8(Exh. R-12). This section relates to oilers, and declares that his duties shall include "giving signals whenever necessary." Since an oiler is under the immediate supervision of a crane operator, it is clear that it is the crane operator, not the oiler, who determines when it is necessary that the oiler act as observer in a particular situation. Considering the record as a whole, it is found that a violation of 29 C.F.R. 1926.550(a)(15)(i) has been established.
The next question is whether the violation is serious [*25] in nature. The answer is yes. There was obviously a substantial probability that death or serious physical harm could result from a failure to maintain a minimum clearance of ten feet between the crane boom and the high voltage wires. In fact, an electrocution did occur. The crane operator and the foreman, acting on behalf of Respondent, knew or with the exercise of reasonable diligence could have known of the violation.
We turn now to the four items in the citation for nonserious violations.
Item #1 alleges that Respondent failed to maintain a record of the dates and results of a thorough, annual inspection of crane PS-51. The Compliance Officer testified that he asked the Safety Director for an inspection report on that crane, but was never furnished such report (Tr. 1-54-56). Respondent has produced a "periodic safety inspection record" of PS-51, showing that a thorough inspection was made on July 15, 1972 (Exh. R-8). There is no such record of an annual inspection at an earlier date. Respondent claims that crane equipment is thoroughly inspected by the shop superintendent on each occasion after repairs are made at the shop, and such repairs were made in February [*26] 1972. This does not satisfy the standard, which requires the maintenance of a record of the dates and results of a thorough, annual inspection. No record of an annual inspection existed as of July 14, 1972, and it is clear from the record that no such inspection was made or contemplated as of that date. Item #1 is established.
As to Item #2, the Compliance Officer testified that on July 17, 1972, he observed that the radius of the swing of the crane was not barricaded to prevent unauthorized personnel from getting into the hazardous area (Tr. 1-54, 1-167, 168). Item #2 is established.
Item #3, has been conceded by Respondent (Exh. J-1).
Respondent claims that the standard listed in Item #4 was not violated because the oiler was designated in the union contract as the person responsible to observe the clearance between the crane and electrical lines and to give hand signals to the operator. The union contract lists this function as a duty of oilers. Merely assigning this duty to oilers in a general way does not satisfy the pertinent regulation. A blanket designation is meaningless. An oiler cannot decide independently when he should observe and signal. He is subject [*27] to the immediate supervision and direction of the crane operator. In this case he was also under the overall supervision of the foreman. The deceased was not provided proper supervision. He should have been directed by the crane operator to observe and signal; this order should have been given just prior to the start of the last operation of the crane on the morning of July 14, 1972. When the crane operator failed to issue such designation, the foreman had the duty to insist upon the designation of an observer. The only reasonable meaning of this standard is that whenever a given situation requires observation and signals, the employer or his supervisor must then designate someone to perform such function at that particular time and place. Given the facts in the case at hand, the standard was violated.
A penalty of $800.00 was proposed for the serious violation. In assessing penalties, four criteria must be considered, as noted supra. Operating a crane less than ten feet from high voltage wires is a violation of the highest degree of gravity. Respondent is among the four largest Connecticut construction companies engaged in road building, with an average of [*28] 325 employees, about 150 of whom work at this particular worksite. There were 5 employees engaged in the tragic crane operation. As to the good faith factor, it is felt that Respondent has not shown that it has any formal safety program. Few safety bulletins were issued by the corporation over a period of years. There was an obvious lack of interest in safety. Since the record shows no history of previous violations, it is reasonable to grant a credit of 20% against the maximum penalty of $1,000. A penalty of $800.00 is therefore imposed.
No penalty is assessed for items #1 and #3 because of their low potential for injury. The Secretary has proposed a penalty of $55.00 for item #2. This penalty is appropriate.
As to item #4, the Secretary recommended a penalty of $285.00. The failure to use an observer contributed in large measure to the tragedy. Taking into account all the criteria, and giving prime consideration to the high level of gravity of this violation, a penalty of $500.00 is deemed appropriate, and is hereby directed.
FINDINGS OF FACT
1. Respondent is and at all times pertinent herein has been a Connecticut corporation with a principal office at [*29] Plainville, Connecticut, and is among the four largest Connecticut construction companies engaged in road building, employing an average of 325 employees.
2. Respondent regularly receives and handles materials and products which have moved across state lines in interstate commerce.
3. At all times relevant to this action Respondent had under its ownership, operation, or control a workplace located at Crystal Avenue and Main Street, New London, Connecticut, and owned and controlled P&H crane PS-51 located at said sice.
4. Respondent employed about 150 employees at said workplace, and on July 14, 1972, there were 5 employees of Respondent working in the immediate vicinity of said crane.
5. On July 14, 1972, John Kroeber, an oiler employed by Respondent, was killed by electrocution at Respondent's workplace on Crystal Avenue, New London, as the result of the boom and ball of said crane striking electric wires carrying 13,200 volts.
6. On July 14, 1972, and at said workplace Respondent violated the safety standard at 29 C.F.R. 1926.550(a)(15)(i) by failing to maintain a minimum clearance of ten feet between any part of the crane and electrical transmission lines rated [*30] below 50kV.
7. There was a substantial probability that death or serious physical harm could result from this violation, and Respondent knew or with the exercise of reasonable diligence could have known of the violation.
8. On said date Respondent violated 29 C.F.R. 1926.550(a)(6) by failure to maintain a record of the dates and results of each thorough, annual inspection of crane PS-51.
9. On July 17, 1972, and at said workplace, Respondent violated 29 C.F.R. 1926.550(a)(9) by failing to barricade accessible areas within the swing radius of the rear of the rotating superstructure of said crane.
10. On July 17, 1972, at said workplace, Respondent violated 29 C.F.R. 1926.550(a)(14)(i) by failing to provide an approved fire extinguisher in the cab of said crane.
11. On July 14, 1972, and at said workplace Respondent violated 29 C.F.R. 1926.550(a)(15)(iv) by failing to designate a person to observe clearance of equipment proximate to power lines and to give timely warning where it is difficult for the operator to maintain the desired clearance by visual means.
12. A penalty of $800.00 for the serious violation, no penalty for item #1 and #3 of the amended Citation for nonserious [*31] violations, $55.00 for item #2 thereof, and $500.00 for item #4, are all appropriate, considering the gravity of each violation, the size of the business of Respondent, the good faith of Respondent, and the history of previous violations.
CONCLUSION OF LAW
1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the meaning of Section 3 and 4(a) of the Occupational Safety and health Act of 1970.
2. On July 14, 1972, Respondent was in violation of Section 5(a)(2) of the Act, as alleged in the Citation of August 1, 1972, for a serious violation, by failure to comply with the safety standard in 29 C.F.R. 550(a)(15)(i).
3. Said violation was a serious violation, within the meaning of Section 17(k) of the Act.
4. A penalty of $800.00 for the serious violation is appropriate, in accordance with Sections 17(b) and (j) of the Act.
5. Respondent was in violation of Section 5(a)(2) of the Act, as alleged in the amended Citation for other than serious violations, by failure to comply with the following safety standards in 29 C.F.R. 1926.550 on the dates shown below:
(a)(6) - July 14, 1972
(a)(9) - July 17, [*32] 1972
(a)(14)(i) - July 17, 1972
(a)(15)(iv) - July 14, 1972
6. The following penalties for the nonserious violations are appropriate in accordance with Section 17(c) and (j) of the Act:
(a)(6) - no penalty
(a)(a) - $55.00
(a)(14)(i) - no penalty
(a)(15)(iv) - $500.00
IT IS ORDERED that the Citation for a serious violation and the Notification of Proposed Penalty therefor be and the same is hereby AFFIRMED; and that the amended Citation for the four other than serious violations be and the same is hereby AFFIRMED; with the following penalties imposed:
item #1 - no penalty
item #2 - $55.00
item #3 - no penalty
item #4 - $500.00