LEBANON LUMBER CO.  

OSHRC Docket No. 184

Occupational Safety and Health Review Commission

March 19, 1973

 

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

  BURCH, COMMISSIONER: On June 8, 1972, Judge James A. Cronin, Jr., issued his decision in the captioned case, affirming the Secretary's citation for serious violation and modifying the proposed penalty from $550 to $350.

On June 21, 1972, I directed that the proposed decision and order of the Judge be reviewed by the Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the entire record in this case, including the exhibits and briefs of the parties.   We adopt that portion of the Judge's decision that is consistent with the following decision.

On October 21, 1971, the Secretary issued to respondent a citation for serious violation of the Act, alleging failure to comply with the safety standard at 29 CFR 1910.180(j)(1)(i).   Notification of proposed penalty in the amount of $550 was issued at the same time.   A timely notice of contest was filed by respondent and proceedings were had before this Commission.

The standard in question states:

1910.180 Crawler   locomotive and truck cranes.

(j) Operating near electric power lines --

(1) Clearances

  (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.

On September 24, 1971, respondent's foreman dispatched two men to a job site to assemble a boom extension on a mobile crane. The truck carrying the boom extension was driven by the employee who acted as crane operator and the crane was driven by the employee who acted as rigger.

Upon arrival at the worksite, the crane operator raised the boom to turn it in order to lift a boom extension from the truck. As he did so, the boom struck a power line carrying 20,000 volts. He heard a "cracking" noise, immediately stopped the crane and got out to locate the rigger. The rigger was lying on the ground beside the crane and was pronounced dead from electrocution upon arrival at the hospital.   This employee was not in view of anyone immediately prior to or at the time the crane came in contact with the wire.

Because of these facts, it was inferred that the deceased employee was touching some part of the crane at the instant the boom came in contact with the wire.   It is noted, however, that because of the phenomenon known as "ground gradient," it is not necessary that an individual be touching the crane for death or serious physical harm to result when the crane is operated within the clearance required by the standard.   The evidence shows that this employee had been instructed by respondent's foreman as to safety precautions to be observed whenever he worked on the crane, specifically, never to touch the crane while it was in motion and to stand clear.   The record also shows that it was his responsibility to assist the operator by watching the boom.

Respondent's foreman testified that the men were   instructed to go to one of two locations at the job site, to set up the boom extensions, and then to await the arrival of the foreman and respondent's supervisor before starting work.   The alternate locations were chosen because they both were distant from the high voltage line.   The spot selected by the men was neither of these locations and was closer to the line.

Respondent asserts that it had discussed the line, and the danger of working close to it, with the senior of the two men -- the crane operator.   The operator admits that he knew of the location of the line and the need for maintaining clearance between it and the crane. He testified that he did not "remember" receiving instructions as to where to locate the crane. Respondent's awareness of the danger of operating the crane near the line in question is further revealed by testimony that when actual work had progressed to a point where the crane would be operating in proximity to the line, plans had been made to de-energize the line.

Respondent asserts that:

One of the basic premises of respondent . . . in contesting the government's charge was the disobedience of the deceased employee and his co-worker of express safety rules and careful orders given to them for the placement of the crane in question and activities around the crane when it was in motion or being used.

The record shows that the regular occupation of the deceased employee was as a welder, and that the crane operator was a machine shop employee.   The operator testified that he had operated the crane "off and on" for about one year.   There is also evidence that the deceased employee had acted as rigger on previous occasions.   However, there is no evidence that either of these employees had been trained in crane operations.   At best, these men must be considered inexperienced in this work.

The Act requires that respondent do more than merely warn employees of hazards and issue instructions.   The Commission has stated that an employer cannot be held to the strict standard of being an absolute guarantor or insurer of the safety of his employees.   Secretary of Labor v. Standard Glass Company, Inc., Secretary of Labor v. Mountain States Telephone & Telegraph Company,   The duty of the employer is to furnish his employees with a safe workplace.   This necessarily implies that the employer will take whatever steps are necessary to accomplish the job safely.   Employees have the concomitant duty to comply with safety standards applicable to their conduct (Section 5(b) of the Act) but, "Final responsibility for compliance with the requirements of this Act remains with the employer." S. Rep. No. 91-1282, 91st Cong., 2nd Sess. 11 (1970).

Thus, it is clear that respondent failed to take the steps necessary to assure compliance with the standard when it sent inexpert employees to perform work without supervision at a hazardous work site. This is not to say that one-on-one supervision is required at all times, but that the degree of supervision necessary must be determined on the facts of each case. n1

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n1 Secretary of Labor v. Hanovia Lamp Division, Canrad Precision Industries, Inc.,

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The Judge concluded, and we agree, that the language of Section 5(a)(2) of the Act is mandatory.   There is no question but that respondent failed to comply with the cited standard.   In my concurring opinion in Secretary of Labor v. Mountain States Telephone & Telegraph Co.,

  The question . . . to be answered here is whether non-compliance with a standard with nothing more, is a violation of the Act . . . .   Section 17(k) of the Act defines a serious violation, in part, as requiring that the employer know, or with reasonable diligence should have known, of the violation.   Thus, it is obvious that a serious violation requires more than mere non-compliance with a standard.  

Respondent has committed a serious violation of the Act by failure to comply with the standard at 29 CFR 1910.180(j)(1)(i).   The record is clear that with the exercise of reasonable diligence, i.e., proper supervision, respondent would have known of the violation.   It is also distressingly clear that this violation meets the other criterion of a serious violation in that there is substantial probability that death or serious physical harm could result.

The Judge reduced the proposed penalty from $550 to $350.   We disagree with his reasoning.   The Judge properly applied the considerations for determination of gravity as set forth by the Commission in Secretary of Labor v. National Realty and Construction Co.,   He noted that the violation, while having a "relatively high potential" for serious injury or death, only one employee was briefly exposed to the hazard. However, the Judge also concluded that ". . . the apparent failure of the decedent to follow respondent's prescribed safety policy contributed to the tragic accident" and considered this conclusion in his determination of gravity of the violation.   We have consistently held that the occurrence of an "accident" is not necessary to a finding of a violation of the Act.   Nor is an "accident" necessary to find a violation serious or of a high level of gravity.

There is no evidence of record that decedent failed to follow respondent's asserted safety policy and therefore, such consideration has no place in mitigating the   gravity of the violation.   If this factor has any value in the determination of gravity, it would properly fall under the evaluation of the efficiency of respondent's safety program, to determine the weight to be accorded respondent's good faith.   We believe that, on this record, the Secretary had been generous in according respondent full credit for good faith.

ACCORDINGLY, IT IS ORDERED that the Secretary's citation for serious violation and proposed penalty in the amount of $550 is affirmed.  

CONCURBY: VAN NAMEE

CONCUR:

  VAN NAMEE, COMMISSIONER, concurring: I concur in the affirmance of the citation and proposed penalty.

The record shows that Respondent's employee operated the crane closer to a power line than the standard permits, and that there is a substantial probability that this violation could cause death or serious injury.

Respondent's foreman   Kuhns testified that he was aware of the power line at the jobsite and that, in fact, plans had been made to have the line de-energized when work progressed to a certain point.   Kuhns instructed two inexperienced employees to take the crane to the site, assemble the boom extension onto the crane, and then wait until he arrived.   He discussed the power line with the employees and warned them to be careful and stay away from it.

Respondent had actual knowledge of the hazard created by the presence of the power line. It was reasonable to foresee that an inexperienced employee, would operate a crane in a manner so as to violate the standard.   Indeed, the fact that Kuhns felt it necessary to warn the two employees of the hazard tends to confirm that the violation was reasonably foreseeable and that Respondent, by exercising reasonable diligence,   could have known of it.   An employer cannot, under the Act, divest himself of knowledge or the ability to obtain knowledge of a violation by sending inexperienced employees to work in the vicinity of a hazard known to the employer.

I specifically disassociate myself from the comment concerning "ground gradient" in Commissioner Burch's opinion.   The comment is not based on the record and, in my view, only serves to cloud the issue in the case.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: I dissent.   The Judge reached the right decision in this case for the right reasons.   His decision should be affirmed.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter called the Act) to review a Citation For Serious Violation and proposed assessment of a penalty based thereon, issued by the Secretary of Labor (hereinafter called the Secretary) against the Respondent, Lebanon Lumber Company, of Lebanon, Oregon.

The citation issued on October 21, 1971 alleged that the Respondent had violated one Occupational Safety and Health standard or regulation, of the act, namely 29 CFR 1910.180(j)(1)(i).   Notification of Proposed Penalty, also issued on October 21, 1971, proposed to assess a penalty of $550.00 for the alleged violation.

In its letter dated November 12, 1971, the Respondent, through its Vice President, Jon Friesen, contested   the citation and proposed penalty.   The Secretary's complaint was filed with the Commission on November 26, 1971 and on February 4, 1972, the Secretary filed a Motion For Dismissal of Respondent's Notice of Contest because of failure of Respondent to answer the complaint.   On February 16, 1972, the Secretary's Motion was denied and Respondent's Answer to the Complaint was received for filing on February 23, 1972.

After due notice, a hearing was held at Salem, Oregon on March 9, 1972.   The Secretary and Respondent were represented by counsel and no affected employee or employee representative sought to participate in the proceeding.

Proposed Findings of Fact and Conclusions of Law were filed May 5, 1972 by the Respondent and a memorandum in support of the citation and proposed penalty was filed by the Secretary on May 10, 1972.

Upon the entire record, I make the following:

FINDINGS AND CONCLUSIONS

I.   JURISDICTION

The Respondent admitted in its answer that it is an employer engaged in a business affecting commerce within the meaning of section 3 of the Act.   Therefore, I find that Respondent is an employer within the meaning of Section 3(5) of the Act and that assertion of jurisdiction by the Commission is warranted.  

II.   THE ALLEGED VIOLATION

The complaint alleges that on September 24, 1971, the Respondent violated 29 CFR 1910.180(j)(1)(i), a regulation duly issued and promulgated under the Act,   through failure to maintain at least a ten foot minimum clearance between a 20,000 volt power line and a mobile crane. It further avers that the alleged violation was a serious violation within the meaning of Section 17(k) of the Act.   Finally, the complaint prays for affirmation of the citation and proposed penalty of $550.00.

Respondent's answer essentially denies violation of the regulation in question on the ground that the violation was committed as a result of employees' failures to execute Respondent's instructions.

Section 29 CFR 1910.180(j)(1)(i), provides:

(j)(1)(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.

The issues to be resolved and determined are:

1.   Does the record establish a serious violation by the Respondent of the cited standard?

2.   If so, whether the proposed penalty assessment is appropriate?

A.   The Evidence

The record evidence establishes that Bauman Lumber Co. contracted with the Respondent to remove from Bauman's work site an existing shavings bunker, dismantle a planer blow pipe, and erect a new bunker (Tr. 20).   The removal of the blow pipe, was to be accomplished by use of Respondent's 20-ton Lorain mobile crane (Tr. 22, 52, Secretary's Exhibit 3).   In charge of the project was Melvin Paulus, head of Respondent's machine shop division, who in turn delegated the job to Larry Kuhns, a foreman. According to foreman Kuhns, he was aware of the presence of a 20,000 volt power line crossing the Bauman property and prior to September 24, 1971, had discussions with his   immediate supervisor, Mr. Paulus, concerning the deenergizing of the power line. It was concluded that part of the blow pipe could be taken down without deenergizing the power line but, at a particular point in the operation, work was to stop, the power company contacted, and power shut off.   Then, the final removal of the pipe would be accomplished (Tr. 49).

On September 24, 1971, foreman Kuhns put crane operator Ervin Dirks "in charge" and instructed him to go down to the Bauman work site with James Nofziger, Respondent's rigger, and attach the 20 foot boom sections onto the crane, and then await the arrival of Mr. Paulus and Mr. Kuhns (Tr. 50).   According to foreman Kuhns, he discussed with operator Dirks in the presence of supervisor Paulus the location of the power lines, that "we were to be awful cautious of them," and about the "two places where we should set the boom up" (Tr. 51).   These two locations, "X" and "Y" were selected because they were not near the power lines; one was near the Bauman office, the other "just across" the road, approximately 250 feet from the spot operator Dirks and rigger Nofziger parked the crane and the truck and trailer on September 24, 1971 (Tr. 54-55, 59).   The blow pipe was located about 40 feet from the Bauman office and 120 to 130 feet from the site selected by Mr. Dirks to park the trucks and attach the boom extensions.

Foreman Kuhns testified that he dispatched operator Dirks about 11 o'clock in the morning and told him that Mr. Kuhns would come down to the work site "right after lunch" (Tr. 56).

Operator Ervin Dirks testified that on the morning he was given the assignment to assemble the boom by foreman Kuhns, he had a discussion with him about the power lines on the Bauman property.   Foreman   Kuhns told him that "we would take down the blow pipe from the road, back up as close to the resaw, without getting up by the power lines," and then, "they would shut the power off" (Tr. 74).   He was told to attach the extensions on the boom and then wait for Mr. Kuhns and Mr. Paulus.   He does not remember whether Mr. Kuhns told him where to park (Tr. 66).

Operator Dirks drove the truck hauling the trailer with the boom extensions and Mr. Nofziger followed him, driving the crane. Upon arriving at the Bauman property, he mentioned to, and told, Mr. Nofziger to park the crane behind the truck but instead, the crane pulled up alongside the truck (Tr. 72).   Operator Dirks then got into the crane and raised the 30 foot boom off the "saddle." After rigger Nofziger released the hook, the boom was raised and swung around by operator Dirks.   A "cracking" noise was heard when he got the boom near the power line and he immediately brought it back into the original position.   Rigger Nofziger was position back of the crane when the boom was swung, out of the operator's vision, and when Mr. Dirks got out of the cab, rigger Nofziger was laying on the ground dead from cardiac arrest due to electrocution (Secretary's Exhibit 2, Tr. 63, 64).   Rigger Nofziger and other employees had been instructed by foreman Kuhns previously not to touch any parts of the crane when it was being operated (Tr. 58).

Compliance Officer of the Occupational Safety and Health Administration, A. Neal Franklin, testified that after receiving a "Log of Fatalities and Hospitalization" (Secretary's Exhibit 1) he commenced his investigation of the fatality of James N. Nofziger on September 28, 1971.   He was informed by Respondent's Vice President John Friesen that the crane boom had swung into a 20,000 volt line and apparently the deceased   had been leaning against the crane's outrigger and was electrocuted (Tr. 78).

The compliance officer also visited the scene of the accident at the Bauman property with foreman Kuhns and during the two hours with foreman Kuhns, Mr. Kuhns did not advise him that he had instruced Mr. Dirks or Mr. Nofziger to go to "spots X and Y" to attach the boom extensions (Tr. 79).   Foreman Kuhns did state on that occasion that he had discussed the presence of the power lines with operator Dirks (Tr. 81).   Subsequently, officer Franklin also had discussions with Mr. Dirks and Vice President Friesen and neither made mention of any instructions given with regard to working on the boom only at site "X" or "Y".

III.   THE PROPOSED PENALTY

Both officer Franklin and Area Director of the Occupational Safety and Health Administration, Eugene Harrower, testified as to how the proposed penalty of $550.00 was selected.   Because it was determined that conditions were such that death or serious physical harm could "likely result," a "serious violation" existed (Tr. 105).   From an unadjusted figure of $1,000.00, a reduction of 20% was given for a past history of no violations under the Act, 5% for the size of the company, which employed 20, and a further reduction of 20% for the "good faith" of the company (91-92, 105).

IV. DISCUSSION

A.   As To Violation

The evidence of record clearly establishes that a violation of Section 29 CFR 1910.180(j)(1)(i) was committed   on September 24, 1971 by Respondent's crane operator.   The more difficult issue to be resolved is whether Respondent also was in violation of this safety standard on the same date.

Respondent's counsel apparently considers this case as one intended to determine the respective rights, duties,   and liabilities of the Respondent and its employees under Oregon law in regard to a death of an employee arising out of, or in the course of his employment.   If so, he has misconstrued this decision's purpose.   Here, the only determination to be made is whether the Respondent failed to comply with the cited safety standard.

Respondent, in essence, contends that because the violation resulted from employee actions executed contrary to Respondent's express instructions, the Respondent cannot be held responsible for the violation.   I must disagree.

Section 5(a)(2) of the Act provides that each covered employer "shall comply with the occupational, safety and health standards promulgated under this Act" and Section 29 CFR 1910.180(j)(1)(i), the standard in question, was duly promulgated by the Secretary on May 29, 1971 with an effective date of August 27, 1971.

The prescribed duty to maintain a ten foot minimum clearance from an energized distribution line of 50,000 volts or less is mandatory and applies equally to employers and employees alike.   This is not a situation where the safety standard's express obligations for the employer and employee are dissimilar. n1 There, an employer who has fulfilled his prescribed duties may be deemed in compliance with the standard unless his conduct or inaction contributed to the failure of the   employees to carry out their own duties. Also, this is not a case where compliance with a standard or the general duty clause of the Act (Section 5(a)(1)) requires affirmative employer action which is performed by the employer or his agents but then nullified by an employee's conduct, unbeknown to the employer.   In such instances, it would appear unreasonable to cite an employer for failure to comply unless he knew, or could have known with the exercise of reasonable diligence of the employee's conduct. n2

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n1 For example, see 29 CFR 1910.133(a)(1).

n2 In this regard, see report of case of General Tire and Rubber Company of Akron, Ohio at page 673 of the Occupational Safety and Health Reporter (Current Report, Number 34, December 23, 1971) where Commission vacated citation alleging violation of section 5(a)(1) of Act.

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In order to comply with the standard   here, however, the employer need not act, only refrain from prohibited conduct and his duty is absolute, nondelegable and continuing.   The effectiveness of this particular safety standard would be nullified and the manifest legislative intent of the Act defeated if an employer could delegate a duty clearly enjoined upon him to another.   See Moen v. Aitken, 271 P. 730.

When an employer is under a statutory duty and then entrusts its performance to his agent, he becomes responsible for the failure of that agent to comply with the law.   See Pirtle's Adm'x v. Hargis Bank and Trust Co., et al., 44 S.W. (2d) 541, where it was held that an agent's disregard or violation of a statutory duty in discharging an act for his principal renders both principal and agent liable.

It has been a long settled principle of the law of Agency that in addition to the acts to which he has directed his agent to commit, the principal also is liable for all other acts committed by his agent while acting   within the scope of his authority, irrespective of that fact that his agent also may be personally liable. n3

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n3 See 3 C.J.S. Agency, 254, 255 and the cases cited thereunder.

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The Respondent placed "in charge" and delegated the work of attaching two, twenty foot extensions onto a 30 foot mobile crane boom in the vicinity of power lines to his crane operator, thereby making him its agent for that purpose (Tr. 22, 50, 51).   Thereafter, whatever action Respondent's agent took in furtherance of carrying out this work assignment must be deemed to have been done within the scope of his employment and as a result, must be imputed to the Respondent.   Moreover, the operation of this proverbial principle is not affected by the fact that an employee may have acted contrary to his employer's instructions. n4 As the Court stated in Dalrymple v. Covey Motor Car Co., 135 P. 91, at 93, ". . . while the servant is pursuing his line of duty within the scope of his employment, even if he violates express orders, a deviation therefrom is not an abandonment of the master's service."

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n4 Foreman Kuhns' statements, as heard and understood by crane operator, constituted instructions to avoid energized power lines.   Record, however, does not support finding that operator was told and heard specific instructions to go to location "X" or "Y".

 

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Unquestionably, the crane operator did not comply with the provisions of Section 1910.180(j)(1)(i) when he swung the boom around and struck the energized 20,000 volt power line and thus, he also violated Section 5(b) of the Act which makes it mandatory that each employee comply with the safety and health standards which are applicable to his own actions and conduct.   However, as the Senate Report on this Act makes clear, Congress did not intend the employee duty provided   in Section 5(b) to diminish in any way the employer's own compliance responsibilities.   In the words of this report, . . .   "Final responsibility for compliance with the requirements of this act remains with the Employer." (See S. Report No. 91-1282, 91st Cong. 2d Session, pp 10-11.)

Obviously, a failure to maintain a minimum 10 foot clearance from a 20,000 volt electrical power distribution line is a violation which presents a substantial probability that death or serious physical harm could result.   Moreover, Respondent's operator and agent was fully aware of the location of the power lines and he could have reasonably anticipated that the method he selected to attach the boom extensions would result in the prohibited conduct. Under the circumstances, the violation committed is deemed "serious." See Hodgson v. Dale M. Madden,

B.   As To Penalty

All four factors prescribed in Section 17(j) of the Act, the size of employer's business, gravity of the violation, the good faith of the employer, and history of previous violations have been considered.   The Respondent is relatively small in size, having approximately 20 employees, and has a history of no previous violations under the Act.   Also, the "good faith" of the Respondent is reflected in its efforts to conduct meaningful company safety programs with employee participation encouraged.   While there is a relatively high potential that the particular violation would result in serious physical injury or death, it appears to have been a solitary case of this prohibited conduct. Note also is made that the apparent failure of the decedent to follow Respondent's prescribed safety policy contributed to the tragic accident.

  In view of the foregoing, a penalty of $350.00 is considered appropriate.

CONCLUSIONS OF LAW

1.   The Respondent is engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and jurisdiction of the parties and subject matter is conferred on the Commission by Section 10(c) of the Act.

2.   Pursuant to Section 6(a) of the Act, the Secretary of Labor on May 29, 1971 promulgated 29 CFR 1910 et seq. to become effective generally on August 21, 1971.   The safety standard prescribed in Section 1910.180(j)(1)(i) was in full force and effective as regards Respondent and its employees on September 24, 1971.

3.   On September 24, 1971, the Respondent was in violation of 29 CFR 1910.180(j)(1)(i).

4.   The violation was a "serious violation" as defined in Section 17(k) of the Act and the appropriate penalty for this violation is $350.00.

ORDERS

Based on the foregoing findings, conclusions of law, and the entire record, it is ORDERED, that

1.   The citation issued on October 21, 1971 charging a violation of 29 CFR 1910.180(j)(1)(i) is hereby AFFIRMED.

2.   A penalty of $350.00 is hereby ASSESSED.