GODWIN-BEVERS COMPANY, INC.

OSHRC Docket No. 1373

Occupational Safety and Health Review Commission

January 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order and Chairman Moran's separate order directing review of a decision rendered by Judge J. Paul Brenton. n1 Judge Brenton affirmed Complainant's citation for a serious violation of section 5(a)(1) n2 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") and assessed a penalty of $500 therefor. We have reviewed the record, and for the reasons given below, we reverse.

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

n1 This case was directed for review with a consolidated case, Secretary of Labor v. Weicker Transfer and Storage Company, The cases are hereby severed for decisional purposes.

n2 This section provides that "[e]ach employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" 29 U.S.C. 654(a)(1).

- - - - - - - - - - - - - - - - -End Footnotes- - - [*2] - - - - - - - - - - - - - -

The relevant facts are as follows: Respondent was constructing a slab apartment building. It has leased a crane, crane operator, and oiler from a rental company for the purpose of erecting precast concrete closet units. Respondent's foreman, who was in charge of this operation, was directing the crane operator as well as supervising the rigging crew. At his direction several members of the rigging crew attempted to manuever the crane's lifting bar into a position where the bar could be attached to a closet unit. The unit was lying under an overhead power line, and the line was energized at 7620 volts. During this operation a crane cable contacted the line. The foreman was electrocuted and another of Respondent's employees as well as the rental company's oiler were injured.

On these facts Complainant charged and Judge Brenton found a serious violation of section 5(a)(1) (the general duty clause) of the Act. The judge's conclusion was predicated on his findings that the presence of an unguarded conductor energized at the level involved herein and to which employees were exposed was a recognized if not obvious hazard which could cause death [*3] or serious harm. He also noted that the condition was obvious and Respondent should have known of the presence of the violation.

On these same facts Judge Brenton found the rental company in serious violation of 29 C.F.R. 1518.550(b)(2) (redesignated as 29 C.F.R. 1926.550(b)(2)). The standard and for that matter 29 C.F.R. 1926.550(a)(15) requires a minimum clearance distance of ten feet between any part of a crane or its load and an electrical line energized at 50 kilovolts or less.

The facts of this case are that the crane cable contacted a line energized at over 7000 volts, and Respondent's foreman and one other of its employees were exposed to the condition. Obviously, the terms of the standard were breached. And, since Respondent's employees were exposed to the condition, this would have been enough to establish a violation under our decisions. James E. Roberts Co. and Soule Steel Co., Plastering, Inc., R.H. Bishop Company, [*4] CCH Employ. S. & H. Guide para. 17,930 (1974).

Respondent in this case, however, was not charged with a violation of a standard. Rather, it was charged with a violation of the general duty clause. As we have said previously, Congress did not intend that the general duty clause be used when a standard applies. Brisk Waterproofing Co., Inc., In Brisk, we held that a general duty citation would be invalid in such circumstances. See also: Advance Air Conditioning, Inc., 17,585 (1974); Sun Shipbuilding and Drydock Co., In those cases we found a violation of the standard because the parties tried the issue by consent. We specifically relied on Rule 15(b) of the Federal Rules of Civil Procedure.

This case is different. Here Respondent defended against the allegation of a general duty violation on the basis that a standard applied. Moreover, Complainant has steadfastly maintained throughout the entire [*5] proceedings that the general duty clause applies. He persists in advocating the inapplicability of a standard. In the circumstances the parties have not tried the issue of a violation of a standard by consent. The pleadings cannot, therefore, be amended to conform to the evidence.

Accordingly, since the citation is invalid both it and the proposed penalty are vacated. It is so ORDERED.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I agree with my colleagues that the Judge erred in holding that respondent was in violation of section 5(a)(1) of the Act. I dissent, however, from the majority's apparent conclusion that the only recourse is for the Commission to vacate the citation and proposed penalty.

I. The Nature of the Violation

As indicated in the lead opinion, respondent had leased a crane, crane operator, and oiler from a rental company for the purpose of erecting precast concrete closet units at the construction site for its apartment building. Respondent's foreman was responsible for directing the crane operator and supervising the entire rigging crew. While maneuvering the crane's lifting bar into position, the crane cable contacted an overhead energized power [*6] line. The foreman was killed and another employee of respondent, as well as the oiler, were injured.

As a result of this fatal accident, the crane rental company was cited for a serious violation of section 5(a)(2), for failing to comply with parts of the crane operation standard appearing at 29 CFR 1926.550 n3. Respondent, however, was cited under the general duty clause, section 5(a)(1) of the Act. According to the Secretary,

[r]espondent Godwin-Bevers was not charged with a violation of the standards as was Weicker for the reason that the standards under which Weicker was cited apply to the actual operation of the crane as accomplished by the crane operator.

Brief for Secretary of Labor at 7.

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

n3 See Weicker Transfer & Storage Co., No. 1362.

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

The Secretary's contention is without merit. The Commission has consistently held that "[c]iting a respondent under the general duty requirement of the Act is not appropriate where there exists a specific occupational safety and health standard covering [*7] the conduct at issue." Sun Shipbuilding & Drydock Co., No. 161 (October 3, 1973) (Slip op. at 2). See generally Morey, "The General Duty Clause of the Occupational Safety and Health Act of 1970," 86 Harv. L. Rev. 988 (1973).

The standard appearing at 29 CFR 1926.550(a)(15)(i) reads as follows:

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

It has been specifically held that the lessee of a crane, who directed the operation of the crane, is properly charged with a failure to comply with 29 CFR 1926.550(a)(15). See Devco Bldg. Co., No. 2536 (October 20, 1973) (Administrative Law Judge). Similarly, it is no defense that the main body of the crane was not within 10 feet of the power line, because under the [*8] plain terms of the standard, "minimum clearance between the line and any part of the crane or load shall be 10 feet' (emphasis added). See Holsom Concrete Prods. Co., Inc., No. 831 (February 28, 1973).

It is likely that respondent could be found in violation of section 5(a)(2) of the Act for failing to comply with 29 CFR 1926.550(a)(15)(i). n4 Nevertheless, the Secretary has persisted in advancing his view that respondent's alleged violation conduct constituted a violation of section 5(a)(1). Under these circumstances, the Commission is faced with the difficult task of balancing the remedial and ameliorative intent of the act against the dur process rights of the respondent.

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

n4 The undisputed facts seem to establish a prima facie case, but respondent has not had an opportunity to defend on this issue. Although respondent's defense to its alleged violation of section 5(a)(1) was that it should have been cited under section 5(a)(2), respondent never had an opportunity to defend against the latter allegation on the merits.

- - - - - - - - - - - - - - - - -End Footnotes- - [*9] - - - - - - - - - - - - - - -

II. The Propriety of a Sua Sponte Amendment

It is well-settled that "administrative pleadings are very liberally construed and very easily amended." National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973) (footnotes omitted). This principle specifically applies to the amendment of pleadings to conform to the evidence presented as delineated in Rule 15(b) of the Federal Rules of Civil Procedure. n5 See Consolidated Edison v. N.L.R.B., 305 U.S. 197, 225 (1938); N.L.R.B. v. Mackay Radio & Tel. Co., 304 U.S. 333, 350 (1938); American Boiler Mfrs. Ass'n v. N.L.R.B., 366 F.2d 815, 821 (8th Cir. 1966).

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

n5 The Federal Rules of Civil Procedure govern Commission proceedings. See section 12(g) of the Act and rule 2(b) of the Commission's Rules of Procedure. Rule 15(b) of the Federal rules provides in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such an amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. Fed. R. Civ. P. 15(b).

[*10]

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

Under Rule 15(b), the amendment of pleadings to conform to the evidence presented is mandatory and not merely permissive. SEC v. Rapp, 304 F.2d 786, 790 (2d Cir. 1972). The purpose of the rule is so that cases are decided on their merits, rather than on formal pleadings. Iodice v. Calabrese, 345 F. Supp. 248, 259 (S.D.N.Y. 1972); 6 Wright and Miller, Federal Practice and Procedure Ch. 4, 1491 at 454 (1971). Rule 15(b) gives courts the authority to amend pleadings to conform to the evidence on its own motion. Not only does an adjudicative body have the right to amend pleadings on its own motion, but it has an affirmative duty to consider issues that are raised by the evidence, even if not specifically pleaded. American Boiler Mfrs. Ass'n, supra; Michigan Consol. Gas Co. v. FPC, 283 F.2d 204, 224 (D.C. Cir. 1960); Underwriters Salvage Co. v. Davis & Shaw Furn. Co., 198 F.2d 450, 453 (10th Cir. 1952).

In several cases, the Commission has amended pleadings to conform to the evidence, both on its own motion, see e.g., Advance Air Conditioning, [*11] Inc., No. 1036 (April 4, 1974), and after a motion by one of the parties. See, e.g., Brisk Waterproofing Co., Inc., No. 1046 (July 27, 1973). Nevertheless, the Commission has never expressly stated all of the criteria that it considers in approving or rejecting an amendment under Rule 15(b). n6 The lead opinion in this case, for example, merely states: "In the circumstances the parties have not tried the issue of a violation of a standard by consent. The pleadings cannot, therefore, be amended to conform to the evidence."

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

n6 For a discussion of some of these factors, see Hartwell Excavating Co., No. 853 (September 26, 1974); Gerstner Electric, Inc., No. 997 (August 1, 1974); Copelan Plumbing Co., No. 867 (June 17, 1974).

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

In my view, there are five factors that the Commission should consider before amending pleadings to conform to the evidence. The first element is whether the underlying facts upon which a violation is alleged are the same. Even though there is no absolute requirement that the [*12] amendment relate to the same transaction or occurrence raised in the original pleadings, n7 the Commission has been careful to amend pleadings only to find a violation of a different section of the Act or a different standard when the underlying facts were the same. For example, in Copelan Plumbing Co., supra, the employer was cited for failing to shore or slope a trench. The evidence, however, indicated that what was alleged as a trench was really an excavation. Inasmuch as the requirements under the two standards are virtually the same, and the issue of whether the excavation was adequately shored or sloped was tried, the Commission granted the Secretary's posthearing motion to amend.

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

n7 See Wright & Miller, supra 1493 at 473 and cases cited therein.

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

The second factor that the Commission should consider is extremely important: Whether the parties expressly or impliedly consented to the trial of the amended issue. At the very heart of a Rule 15(b) amendment is the notion that the parties [*13] actually knew that the amended issue was being tried. One definite indication of whether there was consent is the way in which the evidence was received at trial. n8 If both parties introduce evidence on the unpleaded issue, then implied consent will be found. Arkla Explor. Co. v. Boren, 411 F.2d 879 (8th Cir. 1969). In addition, when evidence is introduced without objection, the pleadings are deemed amended. n9 Niedland v. United States, 338 F.2d 254 (3d Cir. 1964); 1A Barron & Holtzoff, Federal Practice and Procedure 449 at 777 (1960).

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

n8 Express consent can be given by stipulation, but the more common instance and the one discussed here, is implied consent.

n9 But cf. United States v. Hauck, 155 F.2d 141 (2d Cir. 1946) ( pro se defendant's failure to object not held to be implied consent).

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

The objection to the introduction of evidence or issues, on the other hand, indicates that there was no implied consent. Locke Mfg. Cos. v. United States, 237 F. Supp. 80, 89, n.24 [*14] (D. Conn. 1964). Similarly, it has been my view that there can be no implied consent where there is express rejection of the alternative legal theory. See Granite-Seabro Corp., No. 923 (August 16, 1974) (Concurring opinion).

The third factor to consider is whether a respondent has had a chance to raise all relevant defenses to the amended pleading. In other words, will a respondent be prejudiced by the amendment. A Rule 15(b) conforming amendment should not be made when it would "prejudice defendant in his defense on the merits." Hester v. New Amsterdam Cas. Co., 287 F. Supp. 957, 970 (D.S.C. 1968). See RPM Erectors, Inc., No. 1114 (September 3, 1974). Prejudice is determined by inquiring whether a party had a fair opportunity to defend and whether it could offer additional evidence if the case were retried on a different theory. Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969).

The fourth element to which the Commission should look is the nature of the amended violation. In other words, is a 5(a)(1) violation being amended to allege a 5(a)(2) violation, n10 or does the amendment go from 5(a)(2) to 5(a)(2), n10[a] or from 5(a)(2) [*15] to 5(a)(1)? n10[b] In the past, the Commission has amended citations from 5(a)(1) to 5(a)(2) n10[c] and from 5(a)(2) to 5(a)(2). n11 Because of distinct evidentiary problems, n12 however, the Commission has been reluctant to amend a violation from 5(a)(2) to 5(a)(1).

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

n10 From the general duty clause to a specific standard.

n10[a] From one specific standard to another specific standard.

n10[b] From a specific standard to the general duty clause.

n10[c] See, e.g., Brisk Waterproofing Co., Inc., supra.

n11 See, e.g., Copeland Plumbing Co., supra.

n12 In order to prove a violation of the general duty clause, the Secretary must prove (1) that the employer failed to render its workplace free of a preventable hazard that was (2) recognized and (3) causing or likely to cause death or serious physical harm. National Realty, supra at 1265-68. See also American Smelting & Refining Co. v. O.S.H.R.C., 501 F.2d 504 (8th Cir. 1974); Brennan v. O.S.H.R.C. & Vy Lactos Lab., Inc., 494 F.2d 460 (8th Cir. 1974).

It is possible that a case could arise in which the elements of a general duty clause violation were tried by implied consent, even though a violation of section 5(a)(2) was alleged in the complaint. In such event, the Commission would not be precluded from amending the complaint from 5(a)(2) to 5(a)(1) without a remand.

[*16]

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

The final factor to consider in a Rule 15(b) amendment is whether a violation based on the original complaint was found. As a general rule, the Commission should be reluctant to find a violation by amending the pleadings where no violation was originally found. n13

We think it obvious that the Rule [15(b)] was not intended to permit a part to amend his pleadings after verdict and, thereby upset the verdict by asserting a new theory which was not included in the original pleadings, and upon which the case was not tired. Cleary v. Indiana Beach, Inc., 275 F.2d 543, 547 (7th Cir. 1960), cert. denied, 364 U.S. 825 (1961).

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

n13 See generally Wright & Miller, supra 1494 at 477 and cases cited therein. Of course, the announced rule would not apply to a finding of no violation solely because a respondent was cited under the wrong standard or section of the Act and also does not apply to a finding of a violation following a remand. On this point, see Part III, infra.

- - - - - - - - [*17] - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Applying these guidelines to the present case, it must be concluded that issue of a violation of section 5(a)(2) for failing to comply with 29 CFR 1926.550(a)(15) was not tried by the implied consent of the parties. Consequently, the Commission cannot reasonably amend the pleadings sua sponte. This issue was imply not tried. As the District of Columbia Circuit noted in National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1267 n.40 (D.C. Cir. 1973): "It is patently unfair for an agency to decide a case on a legal theory or set of facts which was not presented at the hearing."

III. The Effective Remedy

Having determined that a sua sponte amendment of the pleadings under Rule 15(b) is inappropriate, n14 the Commission is faced with the problem of what to do. The facts of the case provide a strong indication that respondent has violated the Act. On the other hand, the Secretary has persisted in pursuing an untenable legal theory.

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

n14 On this point all of the Commissioners agree.

- - - - - - - - - - - - [*18] - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The majority has held that the only appropriate action for the Commission to take is to vacate the citation. I disagree. Although the role of the Commission is not to act as an "associate prosecutor" and to relitigate a case tried by the Secretary, the Congressional objectives of the Act demand that every case be viewed in light of the remedial purposes of the legislation and in favor of the workers whom the Act was designed to protect. n15 It would be extremely easy to hold that the Secretary failed to allege a violation for failing to comply with the standard, and therefore vacate the citation. This, however, would constitute a derogation of the Commission's role of adequately protecting the public interest. See Brennan v. O.S.H.R.C. & John J. Gordon Co., 492 F.2d 1027, 1032 (2d Cir. 1974).

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

n15 Cf. Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209, 212 (4th Cir. 1967), cert. denied, 389 U.S. 834 (1967).

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

Although the facts of the [*19] present case might mislead one into thinking that the only real controversy in these cases are monetary penalties, this is no true. n16 By enacting this legislation, Congress believed that vigorous and effective enforcement of the Act's penalty provisions would lead to a reduction in the more than 14,000 fatalities and 2 million injuries that occur annually in the Nation's workplaces. Moreover, the abatement orders contemplated by the issuance of citations under the Act are directly aimed at eliminating all hazardous working conditions that are detected by the Labor Department inspectors. It is not difficult to realize how the Commission's announced policy of vacating citations in these types of cases n17 precludes the prompt abatement of hazardous conditions and adjudicates cases on technicalities rather than the merits. Such a "game theory" of administrative adjudication is antithetical to the basic tenets of the Federal Rules of Civil Procedure and the Administrative Procedure Act and was expressly criticized by the Second Circuit in John J. Gordon.

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

n16 The violative condition was self-abating, or what I have referred to in the past as "transitory." See Chicago Bridge & Iron Co., No. 744 (January 23, 1974) (slip op. at 17 n.25) (Cleary, Commissioner, dissenting), petition for review filed No. 74-1214, 7th Cir., March 18, 1974).

n17 That is, cases whose records reveal violative conditions that were improperly cited and for which a Rule 15(b) amendment is not possible.

[*20]

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

In my opinion, the only reasonable approach is for the Commission to issue an order to show cause why the citation against respondent should not be vacated. If the Secretary fails to move to amend the complaint within 15 days, then the case must be dismissed. n18 If, however, the Secretary files a motion to amend, then the case must be remanded in order to afford respondent an opportunity to present evidence on the amended complaint. The concept of a remand in these matters is not new n19 and merely demonstrates a concern that respond be afforded its right to notice.

So long as fair notice is afforded, an issue litigated by an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue.

National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973) (footnote omitted).

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

n18 In such an event, the Commission can do no more; it has no enforcement powers. Nevertheless, it is likely that the Secretary would act after an order to show cause.

n19 Cf. Rodale Press, Inc. v. FTC, 407 F.2d 1252, 1256-57 (D.C. Cir. 1968).

[*21]

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

In my view, there would be no credence to a claim by respondent that it was prejudiced or that its due process rights were somehow violated by a subsequent remand. To the contrary, the health and safety of workers is in no way furthered by permitting an employer whose violative acts caused the death of one worker and injured two others to escape liability under the Act by a windfall of pleading technicalities.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting the citations issued by the Complainant against the Respondents under the authority vested in Complainant by Section 9(a) of that Act. The citation against each Respondent having been consolidated for trial.

The citation for serious violation issued to the Respondent, Weicker Transfer and Storage Company, alleges that as a result of the inspection of a workplace under the ownership, operation or control of this Respondent, located at 600 South Dayton, and described as follows: [*22] "concrete and brick apartment units," this Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation issued to Respondent, Godwin-Bevers Company, Inc., alleges that as the result of the inspection of a workplace under the ownership, operation or control of this Respondent, located at 600 South Dayton and described as follows: "concrete and brick apartment units," this Respondent has violated Section 5(a)(1) of the Act by failing to furnish a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees.

The citation, which was issued on August 15, 1972 to Weicker Transfer and Storage Company, alleges that the violations resulted from a failure to comply with certain standards promulgated by the Secretary by publication in the Federal Register on May 29, 1971 (36 F.R. 10406), and codified in 29 CFR 1518, now 29 CFR Part 1926 and incorporated as OSHA Standards by virtue of 29 CFR 1910.12.

The description of the alleged violations contained [*23] on the citation issued to Weicker Transfer and Storage Company states:

On July 27, 1972 cables and a rigging assembly were being attached to concrete closet units, that could not be hoisted vertical because of the high voltage line they were under. Part of the rigging assembly was within ten feet of the line. The crane operator did not stop this unsafe operation and refuse to handle the load until safety was assured. There was no special hazard warning to remind operator of crane not to operate close to high voltage lines, posted in the cab of the crane.

The standards relied upon for the aforesaid violations as to Weicker Transfer and Storage Company and as promulgated by the Secretary provide as follows:

Subpart N -- Cranes, derricks, hoists, elevators, and conveyors. Section 1518.550 Cranes and derricks. (b) Crawler, locomotive and truck cranes. All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B 30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.

American National Standards Institute B 30.5 Section 5.-3.1.3.d. [*24]

Operating Practices. d. The operator shall be responsible for those operations under his direct control. Whenever there is any doubt as to safety, the operator shall have the authority to stop and refuse to handle loads until safety has been assured.

ANSI 5-3.4.5 operating near electric power lines. a. Except where the 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 crane have been erected to prevent physical contact with the lines, cranes shall be operated proximate to, under, over, by, or near power lines only in accordance with the following:

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

ANSI B 30.5 Section 5-3.2.3 Moving the load. 1. Side loading of booms shall be limited to freely suspended loads. Cranes shall not be used for dragging loads sideways.

29 CFR 19518.550(a) General Requirements. (2) Rated load capacities and recommended operating speeds, special hazard warnings, or instruction, shall be conspicuously posted on all equipment. Instructions or warnings [*25] shall be visible to the operator while he is at his control station.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, each Respondent was notified by letter dated August 15, 1972 from J. J. Williams, Area Director of the 0600 Area, Lakewood, Colorado, Occupational Safety and Health Administration, U.S. Department of Labor proposed to assess a penalty for the violation as to Weicker Transfer and Storage Company in the amount of $500; and proposed to assess a penalty for the violation alleged as to Godwin-Bevers Company, Inc. in the amount of $600.

After each Respondent contested the enforcement action, and a complaint and an answer had been filed by the parties in each case, and the cases had been consolidated, the cases came on for hearing as consolidated at Denver, Colorado on January 9, 1973.

FINDINGS OF FACTS

Hereinafter, for convenience, the Weicker Transfer and Storage Company will be referred to as Weicker; and Godwin-Bevers Company, Inc. as Godwin-Bevers.

1. Weicker owns or uses equipment manufactured outside the State of Colorado on a regular and recurring basis. Weicker also utilizes instrumentalities of Commerce such as the telephone [*26] and the U.S. Mails on a regular and recurring basis in the conduct of its business (R.R. Weicker's response to Complainant's request for admissions 2 and 3).

2. Godwin-Bevers purchases or uses materials which originate outside the State of Colorado on a regular and recurring basis. It also utilizes instrumentalities of Commerce such as the telephone and the United States Mails on a regular and recurring basis and the conduct of this business (R. Complainant's request for admissions 1 and 2 and answers thereto Tr. 4).

3. On July 27, 1972 Godwin-Bevers, as general contractor, was engaged in construction of apartment buildings at a site known as "Dayton Meadows" located at 600 South Dayton, Aurora, Colorado (Tr. 14, 16, 93, 201).

4. In the performance of its work at that site, Godwin-Bevers, from November 1971 through July 27, 1972 leased a crane, with operator and oiler from Weicker on a day to day basis (Tr. 70, 93, 124, 203, Ex. RW-1, 209).

5. Joe Becker was the manager of the project for Godwin-Bevers from November, 1971 through July 27, 1972 and as such supervised, controlled and directed the entire work (Tr. 200, 201, 202, 203).

6. On July 27, 1972 precast concrete panels [*27] known as closet units were being erected and installed (Tr. 7, 32, 114) by a rigging crew consisting of Raymond Thompson, Charles Thurston, Gary Walsh and Wayne Jones with the assistance of the crane, its operator Raymond DeMoss and its oiler Charles Saavedra (Tr. 32, 52, 65, 135, 78, 93, 113).

7. On July 27, 1972 Raymond Thompson had been designated as the foreman in charge of the rigging and the rigging crew, he was also called a lead man or working foreman. Thompson was a carpenter by trade and had worked in the pre-cast plant on the jobsite for a considerable period of time before being transferred as an in-line foreman on this erection crew (Tr. 42, 43, 45, 47, 202, 204).

8. Closet units to be erected had been transported and placed by means of a straddle buggy (Tr. 41, 42, 60, 61, 206, 207).

9. In the performance of all the work in the erection of these closet units thompson directed the rigging crew and the operation of the crane (Tr. 48, 77, 78, 113, 114, 120, 127).

10. After approximately five closet units had been lifted into place by the crane and crew the next unit to be lifted was lying below a string of electric wires (Tr. 32, 114).

(a) One of these [*28] electric wires was 22 feet above the ground and carried 7,620 volts (Tr. 144).

(b) The electric wire in question was a temporary transmission line (admission by Godwin-Bevers, brief of Respondent Godwin-Bevers Page 4).

(c) Before attempting to move this unit a discussion ensued among the rigging crew and the crane operator, consisting primarily between Thurston, DeMoss and Thompson, whereas Welch, Saavedra and Jones stood by. It could not be moved vertically because of the proximity of the rigging to the power line. Their problem was to get the rigging to the unit in the presence of the live wires, Thompson agreed that it was a dangerous and hazardous operation (Tr. 38, 39, 43, 55, 56, 81, 103, 114, 130).

(d) In-line foreman, Thompson, for Godwin-Bevers, elected and directed that the crane be used to move the closet unit and his plan was to snake it out sideways from under the wire (Tr. 42, 39, 56, 91, 114).

(e) At the direction of Thompson, DeMoss, the crane operator, instructed the oiler, Saavedra, to move the truck crane assembly backwards 12 to 14 feet to place it in position close to the unit to be erected, to which Saavedra, responded and thereafter DeMoss instructed Saavedra, [*29] to not level off. That is, he was not to place the leveling jacks on the end of the outrigger arms of the crane on the ground, also to which Saavedra responded (Tr. 74, 82, 83, 95, 42, 81, 99, 100, 104, 108, 116, 117, 118, 121, 122, 132). At this point the crane operator swung the crane boom to a position where the main hoist was estimated to be from 10 to 20 feet from the transmission line, locked the boom and left the lifting device, which weighs approximately 1500 lbs, suspended a few feet from the ground 97, 103, 45, 62, 63, 68, 76, 132).

(f) There was a spreader bar, as a part of the rigging, 15 feet in length with cables at the end thereof extending to the rigging lifting device as the ground working level, and the spreader bar was capable of rotating which could bring the cables within 10 to 15 feet of the transmission line in question (Tr. 132).

(g) Thompson assisted by Thurston and Jones began physically maneuvering the ground working area rigging of the crane toward the closet unit, during which process, DeMoss and Wayne Jones called out to Thompson that he was getting too close to the electric lines (Tr. 38, 52, 54, 106, 117, 136, 137, 107, 108, 117, 118, [*30] 129, 44, 67, 69). Whereafter, Thompson persisted in pushing the rigging to make contact with the closet unit, DeMoss refused to further assist and Welch refused to assist from the beginning of this particular endeavor (Tr. 67, 69, 44, 69).

11. As a result of the processes aforesaid contact was made between a rigging line and an electrical line. Thompson was killed and Jones and Saavedra were injured (Pre-trial order of January 5, 1973).

12. There was no sign in the cab of the crane indicating hazards of operating near electric lines, however, the crane operator was well aware of the hazards operating near electric lines (Tr. 121).

13. The short term lease agreement (Ex. RW-1) contained a clause providing that "Lessor's employees are under lessee's exclusive jurisdiction, supervision and control," and includes indemnification from lessee to lessor.

14. Weicket maintains a safety program consisting of posting safety information on bulletin board, individual consultations between employee and the employer, encouraging loaned employees to participate in the safety programs of their special employer and the union supplies its members with safety information on a monthly [*31] basis (Tr. 128, 177).

15. Godwin-Bevers had frequent safety meetings between November 1971, and July 27, 1972 which were attended by DeMoss and Saavedra (Tr. 123, 124, 205, 206).

16. Superintendent, Joe Becker for Godwin-Bevers frequently visited the particular jobsites of the erection crew to observe their operations and practices (Tr. 204).

17. The several buildings on the apartment house erection complex were close together so that when closets were moved in they were staggered in position which caused the crane to have to move into position to attach for erection of such closet unit (Tr. 206).

18. Becker relied on Thompson and permitted him to "do as he saw fit." (Tr. 205).

19. In arriving at the proposed penalty for Godwin-Bevers the Secretary took into consideration the following:

That the violation was grave, critical and serious by reason of the exposure to electricity, less than 20 employees exposed to the particular hazard in question, no record of prior violations of any kind and on site violations for which it was not cited by reason of no exposure at the time of inspection (Tr. 147, 148, 149).

20. In arriving at the proposed penalty for Weicker the Secretary [*32] took into consideration the following:

That the violation was grave, critical and serious by reason of the exposure to electricity, exposure to only two employees, no prior accident or record of violations of safety and health standard, and good faith, but as to the latter no evidence as to what the good faith consisted, if anything (Tr. 146, 147).

21. DeMoss, the crane operator at the time of the accident was an employee of Weicker, to perform work under the short term lease agreement between Weicker and Godwin-Bevers. The same applies to the oiler, Saavedra (Tr. 93, 70, 71).

22. There was evidence of a burn on the high voltage wire (Tr. 145). There was also evidence of a burn on one of the cables of the rigging assembly (Tr. Ex. C-6).

23. There was urgency by the general contractor in the performance of the erection and installation of the closet units. (Tr. 39).

THE ISSUES

The issues raised by the pleadings, pre-trial statements, the voluminous briefs and arguments of counsel and the evidence that merit consideration are:

WEICKER

1. Respondeat Superior. Does the fact that an employer relinguishes supervision, control and direction over his employees at [*33] the job site, where they perform their work, who are part and parcel of a leased truck crane, render him unaccountable to the provisions of the Occupational Safety and Health Act?

2. If such an employer is amenable were there any violations of the Act as alleged?

a. Is the fact that Weicker's crane operator positioned the crane and its lifting device so that the lifting device could be manually moved by human endeavor to within 10' or less of the electric transmission line of 7,620 volts, tantamount to a violation?

b. Is the fact, that Weicker's crane operator knew that if the rigging assembly became attached to the closet unit in question he would have to drag the load sideways, tantamount to a violation?

c. Was Weicker's crane operator doubtful as to safety with respect to the particular operation contemplated and if so did he stop and refuse to handle the load until such time as safety had been assured?

d. Is the fact that there was no sign visible to the crane operator inside the cab of the crane to remind him not to operate close to a high voltage line a violation?

3. Due Process.

a. If upon an assessment of a penalty will Weicker have been denied due [*34] process.

b. Has Weicker been given notice of the charges against it and an opportunity to be heard.

4. Does the constitutional grant of freedom to contract enable an employer to delegate the mandate, under the Act, that he shall provide safe working conditions for his employees by adhering to the safety standards promulgated?

5. Did Weicker know or could it, by the exercise of reasonable diligence, have known of the presence and the use of high tension line within the place of employment?

GODWIN-BEVERS

1. Is the operation of snaking a component part of a building for erection from under a high voltage electric line by means of a truck crane a hazard, at a place of employment that is recognized in the construction industry, as one likely to cause death or serious physical harm?

2. If so, under what facts and circumstances may an employer be in violation of the general duty clause of the Act, Sec. 5(a)(1)?

3. Where an employee undertakes and performs an obvious dangerous process and operation, unknown to the employer, in the performance of his work whereby there is a substantial probability of resultant death or serious physical harm, when can a serious violation be predicated [*35] thereon and affirmed?

4. If a leased crane operator, who has the sole management and control over the movement and operation of the leased crane, violates a specific standard, in his operation of that crane, is the lessee, who is an employer, thereby relieved of his obligation under the general duty clause of the Act?

5. If there has been a violation of Sec. 5(a)(1) of the Act, and it has been abated, can a penalty be assessed, and if so what makes the penalty so assessed appropriate pursuant to the provisions of the Act?

DISCUSSION

The very presence at the place of employment of an elevated wire transmitting electricity of relatively high voltage is the rudimental basis upon which the Citations herein were predicated and issued.

Electricity is a highly subtle imponderable fluid, whose presence or influence is only known by its effect. Electricity has also been described as an imponderable and invisible agent producing light, heat, chemical decomposition and other physical phenomena.

Electricity is a dangerous instrumentality requiring the highest degree of care and caution in guarding against its delitescent and diabolical effect upon the human body.

An elevated [*36] wire employed at a worksite, for the purpose of transmitting high voltage electricity, is dangerous and hazardous in such sense that the employer is required to guard against contact with it, if, in the ordinary course of human affairs, danger may be reasonably anticipated without some substantial and reliable means or practiace to prevent contact.

I

Godwin-Bevers created and maintained the workplace in question. Weicker sent its employees into that workplace to perform their work. The electric transmission line over and about the workplace was temporary. The work was being performed in close quarters. The closet units were heavy and massive. The truck crane was of considerable dimensions. Six workmen were in and upon the workplace each performing his assignment. One of them was a foreman who directed the work of this erection crew. He had been recently assigned this task, having prior thereto worked in the pre-cast plant, and was permitted to do as he saw fit. A reasonable inference derived is that time was of the essence in getting on with the work (Tr. 39). The elevated wire line was there and was being used by the employer, Godwin-Bevers, to transmit electricity of [*37] high voltage within the confines of the immediate workplace. The entire erection crew at the particular time and place was performing the work assigned; within close proximity to a dangerous instrumentality, electricity; the goal of which was to raise the closet units from the horizontal to the vertical, thereby enabling the unit to be lifted and carried for placement and erection into the building being constructed, all by means of the crane.

Under these facts and circumstances the use of electricity by the employer presented a risk of contact unless extraordinary precautions were taken to guard against it. The use by Godwin-Bevers, the employer, of the imponderable and invisible elements of the electricity present here was the hazard which existed under this factual situation.

II

The argument by each Respondent that the absence or lack of predicability in the events that occurred is an excuse for the activity so employed is untenable. Godwin-Bevers Claims its man performed a negligent act which is not a violation of the general duty clause, Sec. 5(a)(1), of the Act, inasmuch as Weicker permitted its crane to be operated within ten (10) feet of the high voltage line [*38] which is a violation of a specific standard. Whereas, Weicker argues that it had no control over its loaned employees, that Thompson, for Godwin-Bevers, directed the performance of each act preceeding the tragic climax and that its crane operator only did that which he was told to do, by Thompson, to a point upon which he stopped the mechanical movement of the crane. All of which, it apparently concludes, is very normal activity for a loaned crane operator. Nevertheless, this activity was to a point of no departure, in fact, to a point of no return even if the cables and other attachments were then twenty (20') feet distance from the high voltage line.

These arguments beg the question as to whether or not there existed a condition in a place of employment that presented a substantial probability that death or serious physical harm could result concerning which either or both Respondents knew or should have known. Furthermore it is the unpredictability of contact with the live wire that makes its use in this particular place of employment under the peculiar facts and circumstances then and there existing a hazardous and dangerous place of employment.

III

Godwin-Bevers [*39] had actual notice and knowledge of the factural situation depicted here and was thereby charged with knowledge of the peril that was present within the place of employment. Of course it is common knowledge that the peril of electricity is latent and dormant. Also it is common knowledge that high tension wires are a potential source of danger. And it is not unreasonable to suppose that everyone possessing a minimal degree of intelligence knows that electricity will not hurt unless there is contact. In all common probability the risks of contact are today instinctively inbred or universally understood and accepted.

IV

Each respondent carefully articulated in generalities its respective safety programs (For Weicker, See T.R. 128; for Godwin-Bevers, See Tr. R. 205, 206). All the men on the erection crew knew that the undertaking in question would be in effect a flirtation with peril. One man, a laborer, declined to participate. Yet the experienced crane operator, with full knowledge of the rules and of the hazard present, moved the truck crane to a position where its rigging could be manually operated to within a radius of ten (10') feet of the high voltage line, in fact, enabling [*40] it to make contact.

Now what effective action did either Respondent employ to protect its employees from the hazard then and there existing. Under the factual situation here disclosed, safety instructions in generalities is not enough. It seems reasonable to infer, from all the facts and circumstances, that this was a first confrontation by Thompson and this crew with a high voltage line being present in their workplace. At the very least it was Thompson's first encounter. The line was temporary and a further reasonable inference is that Godwin-Bevers caused it to be installed for its use in the building processes. Again it must be recalled that Thompson was new on this assignment and that the several work processes were being performed in close quarters; there was urgency to move along at a good clip. Therefore, in the ordinary course of human affairs, under all the facts and circumstances surrounding this particular employment and place of employment, it may reasonably be anticipated that the electricity so used was dangerous and hazardous in the sense that Godwin-Bevers, the employer of the electricity is required to guard it.

This doesn't necessarily mean one [*41] on one supervision. But it does require a reasonably prudent employer to render specific instructions, whereby he unequivocably mandates, that under no circumstances, regardless of any demanding exigencies, shall the employee in charge attempt any process in the performance of the work that even has a remote chance of contact with a high tension wire. Failing this, the alternative is to denude the line of its electrical energy or provide insulating barriers prior to sending the employees into such workplace. If it is recognized that the use of electricity within the proximity of a place of employment is a dangerous instrumentality requiring a high degree of care and caution in its employment, and surely it is, then the requirement of anything less vitiates the policy and purpose of the Act and perverts the provisions thereof in carrying it out.

V

Weicker seeks to escape any liability or responsibility for any infractions imposed upon it by the Act, if any there be, by shifting its burden to Godwin-Bevers, in accordance with the provisions of the rental (lease) agreement (Exh. RW-1), whereby Godwin-Bevers had complete control over its employees and agreed to indemnify Weicker [*42] for certain claims arising out of Godwin-Bevers operation. Failing this, it argues that its crane operator was a man of long experience and that his actions and conduct in the operation of the crane was exemplary, thus no violations as charged.

The first contention evades the real issue which is the exposure, if any, by Weicker of its employees to a hazard. The underlying duty of each and every employer under Sec. 5 of the Act, regardless of whether an alleged violation is predicated upon paragraph (a)(1) or (a)(2) thereof, is to refrain from exposing employees to hazards. The Act grants no exceptions nor does it permit any delegation of this duty. The Act does not abridge the right to contract, it merely implies that an employer cannot by contract evade this duty to furnish a place of employment that is free of hazards. This duty is imposed upon each employer and makes no distinction as to whether the employer is a general contractor, a subcontractor or a lessor of employees relinquishing all control. Further the Act does not allow for any severance of responsibility predicated upon who produced or created the hazard or who may initially be responsible for its eradication. [*43]

It is indisputable that Weicker by contract furnished its truck crane together with its operator and oiler to Godwin-Bevers. In so doing, by virtue of the provisions for carrying out the purpose and policy of the Act, within the construction industry, it made and provided a place of employment for its employees as effectively as though it had been in the shoes of Godwin-Bevers. This is the result by reason of the non-delegatable duty of an employer to furnish a place of employment which does not expose its employees to hazards.

VI

The crane operator had direct and complete control over each and every mechanical movement of any part of the truck crane, even to the extent of positioning it to and upon any given location, as he gave orders for the same to the oiler who carried out the actual mechanics for that operation. By lawful regulation under the Act he is specifically charged with responsibility for those operations under his direct control. (29 CFR 1518.550(b)(2) ANSI B 30.5-1968 5-3.1.3 d.) Again Weicker, as the employer, cannot avoid responsibility for his actions and conduct under the loaned or leased employee contract, where that action or conduct exposes [*44] Weicker employees to hazards.

The record and the transcript in these cases is replete with unequivocal evidence as to the unqualified doubts of the crane operator, DeMoss, as to safety with respect to the undertaking to be employed in snaking out the closet unit. Being apprehensive and full of doubt, more than just any doubt, about the safety of the procedure and process then contemplated, in full view of the presence of the existing hazard to-wit, the high tension line, he by his own actions and conduct caused the truck crane to be moved from an apparent place of safety, that is with regard to manually moving the cable rigging sideways to the existing hazard, to a location closer to the closet unit resting under the hazard, and in addition he personally mechanically moved the crane boom bround to a position so that the vertical cable rigging was then twenty (20') feet or less from the hazard. He did these things with full knowledge that upon doing so the effort was going to be made to make an attachment of the rigging to the unit by means of manually moving the rigging sideways. Apparently, at this point in time, his only thought process was a hope and a prayer, that the inevitable [*45] would not occur, inasmuch as his personal safety was fairly well assured by the fact that the truck crane equipped with rubber tires, was grounded by his own order in not using the outriggers to level off (Tr. 109).

These operations performed by the crane, instituted by DeMoss, who was in sole physical control, amount to a failure to stop and refuse to handle a load until safety has been assured. Prior to making these operations the truck crane was in an apparent position where the intended maneuvering and lifting process could not be attempted without them. There is no sufficient excuse for these moves and operations. Each one compounded the existing hazard within the workplace of which he was totally cognizant. Weicker would excuse it on the ground that at the particular time and place he was under the direction and control of Godwin-Bevers whereby he responded to the signals given by Thompson to make these moves and operations. The fallacy of this argument is that by making these moves and operations employees of Weicker were exposed to hazards for which Weicker is solely responsible by the plain and unambiguous provisions of the Act.

The operator could and should, [*46] have positioned the crane where it was or to such other place so that it could have been locked out of any reach to the closet unit, and have refused to in any manner handle the load until the load was moved by means of the straddle buggy horizontally to a position where it could have been handled without any immediate exposure to the hazardous electricity.

VII

It is apparent that Weicker has the strange notion that its contract with Godwin-Bevers lets it off the hook for continual and extended safety supervision and instruction. Evidently Weicker relied on Godwin-Bevers to perform these important and serious tasks (Tr. 123, 124, 128, 205, 206, 76). This could only be considered well and good if it prevented exposure of Weicker's employees to hazards, which it didn't. Again no employer can bargain away the duty to prevent exposure of his employees to hazards. Today, in view of the provisions of the Job Safety Act, an employer's duties as to the safety and health of his employees cannot end by the mere payment of his wages together with provision for compensation benefits.

It is apparent that Weicker instructed its crane operator to follow and carry out Godwin-Bevers commands [*47] and signals and neglected to inform him, in no uncertain terms, that he should not, under any circumstances, go so far as to jeopardize the safety of its employees.

When DeMoss manuvered the crane, its boom and rigging assembly to a place where Thompson could complete the intended operation, knowing full well the presence of the existing hazard, the high tension line, and the catastrophic consequences of operating any part of that crane and load within ten (10') feet of that line, he then and there put himself in the shoes of Thompson thereby effectuating the operating of the crane within the limits prohibited in the sense that he accomplished the operation himself.

VIII

It appears that a part of the citation alleges a violation of 29 CFR 1518.550(b)(2) ANSI B 30.5, 1968, Sec. 5.3.2.3.d. There is virtually no description of the alleged violation contained within the citation. The matter was tried on the proposition that the standard alleged prohibited cranes to be used to drag loads sideways. Nevertheless, it is difficult to find any semblance of a description of the alleged violation. An employer would have to dilute his thinking process and fracture his imagination [*48] to learn that he had been charged with dragging a load sideways by crane. Such practice is per se a violation by the Secretary and his authorized representatives of Sec. 9(a) of the Act, which mandates that the citation describe with particularity the nature of the violation. The employer should not be required to hire a Philadelphia lawyer, in his quest to ascertain the charge, to enable him to make a judgment as to whether he contests or concedes. The practice, if permitted to continue, will dissolve long established notions of due process of law.

Moreover, it is now obvious that the alleged violation was not described because the Secretary and his representatives knew they could not make out a case for dragging a load sideways against either Respondent, severally or jointly, by direct or circumstantial evidence. There just wasn't any dragging of a load even though this was intended. Apparently this violation was thrown in for size on a wing and a prayer that it would build a smoke screen.

These practices and procedures are hereby admonished and they should be forever barred.

IX

The standard requiring that special hazard warnings or instructions be conspicuously [*49] posted and visible to the operator from his control station means just what it says to-wit: that when in the course of human affairs, in the construction industry, it has been determined that a certain hazard is uncommon and needs particularization by unusual or extraordinary treatment, then in such event, any warning or instruction as to that hazard is uncommon and needs particularization by unusual or extraordinary treatment, then in such event, any warning or instruction as to that hazard shall be so posted to be effective. Particular implies something selected from the others of its kind and set off from them for attention. Special means given unusual treatment because of being uncommon. The hazard of a high tension line, in plain view, is not uncommon, therefore, a special warning or instruction concerning the same is not required under the standard alleged.

X

Weicker raised as an issue the matter of due process of law as to any penalty that may be assessed against it in its pre-trial statement. However, it failed to pursue the matter by way of any factual data, nor has it been covered in its briefs and arguments by any proposition of law and authorities. Therefore, no [*50] treatment will be accorded such avered matter.

It has urged that permitting the complaint to be amended to conform to the citation and the evidence is violative of due process in that there is a switch in the charges without notice and opportunity to defend. There has been no request to amend the citation. Weicker's case was tried on the basis of the alleged violations as contained in the citation of which it had notice. Weicker contested and defended, throughout the hearing, the alleged violations as set forth in the citation without any objection. Motion to amend the complaint was made after all the evidence was in and the parties had rested their respective cases. It is self evident that Weicker was adequately noticed as to the charges and given ample opportunity to be heard. Accordingly the motion to amend the complaint should be granted.

XI

But for the failure of the Respondents, individually or collectively, to initiate proper and recognized safeguards to restrain or prevent the activation of the electricity then present within the place of employment, the tragic death and injuries to employees would not have occurred.

The condition that existed here is the [*51] use of electricity within a workplace that was unguarded. Unguarded in the sense that it was not de-energized, or insulated by means of barriers or absence of adequate supervision in the sense that neither Thompson nor DeMoss were properly instructed not to toy in any manner whatsoever with a high tension wire when encountered within a given workplace. The employment of electricity is no different than the employment of a machine. Either is "dangerous" in such sense that the employer is required to guard it, if, in the ordinary course of human affairs, danger may be reasonably anticipated from the use of it without protection. Simon v. St. Louis Brass Mfg. Company, 298 Mo. 70,250 S.W. 74.

Weicker either had actual knowledge of the condition, and chose to ignore it because of its lease agreement, or it by law should be charged with constructive knowledge thereof. In any event the condition was in plain sight, Weicker sent its employees into the workplace and with little or no diligence could have known of the condition. Furthermore, Dr. Moss, its employee, was there and well aware of the presence of the violation and compounded it by his own overt acts that resulted in specific [*52] violation of standards. Under either the existing condition or the operations employed by Weicker through DeMoss there is no question as to a resultant substantial probability of death or serious physical harm. In fact it is a certainty as has been demonstrated in these cases.

There should be no doubt that the employment of unguarded electricity, especially high voltage, in a place of employment, is a recognized hazard in the construction industry. Even more so with the added factor of the employment of a crane within that place of employment. If electricity is a dangerous instrumentality requiring a high degree of care and caution in the use of it, and there is a certainty existing that it is, then it is axiomatic, when unguarded, that it is likely to cause death or serious physical harm. Godwin-Bevers, under the general duty clause of the Act, is charged with knowing this, and having failed to perform the duty imposed by Sec. 5(a)(1) of the Act, it should be found to have violated it. Further, Godwin-Bevers created the condition in the place of employment, permitted it to exist and thus it had actual knowledge of substantial probability of death or serious physical [*53] harm in the use of it unguarded.

Some may complain that inasmuch as the events leading and culminating in the tragedy could not have been foreseen by either employer, especially the conduct and actions of Thompson and DeMoss, that neither employer should be held accountable as charged. The law has never required forseeability of an event in its precise form or to a particular person or persons, only that by reason of the peculiar facts and circumstances presented would reasonable men take precaution to guard against like and similar events because death or injury could result to someone for failure so to do.

XII

Sec. 17 (Penalties) of the Act makes no distinction between a violation under (a)(1) or under (a)(2) of Sec. 5. This section simply says in (a), (b) and (c) thereof "the requirements of Sec. 5 of this Act." It would appear that Sec. 17 is all inclusive as to penalties whether it is a violation of the general duty clause or a specific standard. Abateement cures a violation but it is only relative in the assessment of a penalty as it bears upon the good faith of the employer. An assessed penalty is appropriate so long as due consideration is given to the size [*54] 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.

There is also a firm conviction in this quarter that an initial civil penalty serves no useful purpose unless it will in some measure tend to carry out the purpose and policy of the Act pursuant to the provisions as enumerated in paragraphs (1) through (13) inclusive of Sec. (2)(b) of the Act.

In these cases it would appear, that if the violations are serious, and it is apparent that they are, then a civil penalty assessed should have the function and purpose of carrying out the provisions of paragraph (1) of Sec. (2)(b) of the Act, by encouraging rather than discouraging the employers, the Respondents, in their efforts to reduce the number of occupational safety hazards in their respective places of employment, and should stimulate them to institute new and to perfect existing programs for providing safe and healthful working conditions.

The penalty proposed for Weicker substantially meets the tests and it should be affirmed.

The criteria used in proposing the penalty for Godwin-Bevers is ill-considered with respect to good faith [*55] in that alleged observable violations of standards were taken into account without an employee being exposed, all of which is no violation and further there had been no adjudication, without which, due process of law has not been afforded. Here the proposed penalty should be reduced by $100.00 as it otherwise substantially meets the tests.

CONCLUSIONS OF LAW

1. Each Respondent is engaged in a business affecting interstate commerce among the states and each is therefore amenable to the provisions of the Act. Accordingly, adjudication of the subject matter of these causes is thereby jurisdictionally conferred upon this Review Commission.

2. The doctrine of respondent superior has no application under the provisions of the Occupational Safety and Health Act in the sense that its use precludes an employers liability for exposing his employees to hazards.

3. Participation in an intended act to drag a load sideways, without physically so doing, by a crane operator does not violate standard 1518.550(b) ANSI B 30.5-1968, Sec. 5-3.2.3d. But where a crane operator, in face of his expressed doubt and concern as to the safety of a proposed operation, deliberately moves his [*56] truck crane and its rigging assembly to a place whereby the assembly may be and is thereafter manually moved sideways so that a cable thereof contacts an overhead high voltage line in plain view, such is tantamount to a violation of standard 1518.550(b), ANSI B 30.5-1968, Sec. 5-3.4.5 a.1. as well as a violation of standard 1518.550(b) ANSI B 30.5-1968, Sec. 5-3.1.3.d.

4. A high voltage line in plain view is not an uncommon hazard and needs no special treatment with respect to a warning sign visible to a crane operator while at his control station.

5. Where the citation alleges the violation of a certain standard, the employer files a notice to contest it, tries the case on the issues thereby made without objection and the complaint is in error as to transposing that citation, an order granting an amendment, to conform the complaint to that citation and the evidence thereon, is not a violation of due process of law.

6. An employer cannot bargain away his duties under Sec. 5(a)(2) of the Act and such prohibition does not violate his constitutional freedom to contract. Such duties are personal to the employer and not the subject of contract.

7. Electricity is a dangerous instrumentality [*57] and its use, within a place of employment, in the form of a high tension line, requires the highest degree of care and caution in guarding against its release into the body of any workman sent into such place of employment to perform his tasks.

8. The use of a high tension line in a place of employment is an existing hazard and dangerous in the sense that contact with it by employees is virtually unpredictable, therefore, in the ordinary course of human affairs in dealing with such an exposure it is not unreasonable to require employers to exercise every conceivable safety measure short of one on one supervision to guard against it.

9. Weicker, being engaged in a branch of the construction industry of leasing truck cranes and its crew, either had constructive notice of the existing hazard or with reasonable diligence could and should have been aware thereof.

10. It would appear that it is common knowledge in the construction industry that the use of high tension line in a place of employment by an employer is a recognized hazard likely to cause death or serious physical harm unless the utmost precautions are taken to guard it.

11. The conduct of Godwin-Bevers foreman [*58] is not the hazard to be recognized in the construction industry. It is the recognition that the use of an unguarded high tension line is the hazard because of the unpredictability of such like or similar conduct. Anything less will fail to preserve our human resources.

12. Where the use of an unguarded high tension line in a place of employment by an employer is a recognized hazard likely to cause death or serious physical harm and that employer's employees are exposed to that hazard, the fact that in the performance of the work in that place of employment, he uses a leased truck crane and operator and that operator violates a specific standard, such violation in no way abrogates his duty under Sec. 5(a)(1) of the Act.

13. It is not the precise conduct of the employee, unknown to the employer, as demonstrated in Godwin-Bevers case, that the violation under Sec. 5(a)(1) is predicated or adjudged, but rather upon the proposition that this employer exposed its employees to a hazard that was not only recognized likely to cause death or serious physical harm but also as an existing condition from which there is a substantial probability that death or serious physical harm [*59] could result.

14. The abatement of a violation of Sec. 5(a)(1) of the Act does not preempt the assessment of a penalty. Failure to substantially consider the requirements of Sec. 17(j) of the Act would be an abuse of authority to assess and make such assessed penalty unappropriate.

15. The penalties assessed here are appropriate except to the extent that good faith in the case of Godwin-Bevers was downgraded by suspected violations that were neither cited nor adjudicated, all of which is unfair and in violation of due process of law.

16. Where an employer, who exposes his employees to an existing hazard of a high tension line within a place of employment, which is either recognized likely to cause or from which there is a substantial probability of resultant death or serious physical harm, and that employer fails to exercise a high degree of care to guard that hazard by admonitions, in no uncertain terms, to his employee in command of each particular phase of the performance of the work, not to toy in any manner whatsoever with any high tension line in plain view, or otherwise fails to physically guard or de-energize it, then such employer who either knows or by the exercise [*60] of some diligence could have known of the existing condition, subjects himself to any applicable violation of the provisions of Sec. 5 of the Act that may or should be adjudged a serious violation.

ORDER

Wherefore, it is ordered that:

1. The citation and the proposed penalty in the amount of $500.00 in case No. 1362 (Weicker) be and each is hereby affirmed excepting therefrom the alleged violations of standard 29 CFR 1518.550(b) ANSI B 30.5, Sec. 5-32.3d. and standard 29 CFR 1518.550(a)(2) which are hereby vacated.

2. The citation in case No. 1373 (Godwin-Bevers) is hereby affirmed and the proposed penalty therein in the sum of $600.00 is hereby affirmed to the extent of $500.00.

3. The Complaint is hereby ordered amended so that paragraph VII alleges a violation of standard 29 CFR 1518.550(b)(2).

It is so ordered.