AMES CRANE & RENTAL SERVICE, INC.

OSHRC Docket No. 2578

Occupational Safety and Health Review Commission

June 9, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Alan M. Wienman, dated October 25, 1973, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than 18 months. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to dispose of the case at this time.

The members of the Commission are equally divided on the Judge's disposition of the charge in this case. Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Neil v. Biggers, 409 U.S. 188 (1972).

Commissioner Cleary agrees with the findings and reasoning of the Judge. His separate views are attached. Chairman Moran would reverse the Judge because the evidence fails to establish that the respondent possessed actual or constructive knowledge of the alleged violation which occurred as a result of an employee's failure to comply with company practice. See Brennan v. OSAHRC and Raymond Hendrix, d/b/a/ Alsea Lumber Company, 511 F.2d 1139 (9th Cr., 1975). [*2]

CLEARY, COMMISSIONER: While I affirm the Judge's disposition of this case for the reasons that he has assigned, the issues upon which review was directed before us deserve additional comment.

I.

Ames Crane & Rental Service, Inc., respondent, rents fully maintained and operated heavy industrial equipment, primarily cranes, on an hourly basis. On February 12, 1973, a building contractor, the Abel-Howe Company, rented a crane and operator from respondent. The crane was to be used for hoisting material at the Iowa State University power plant.

While the hoisting operation was in progress, the crane's load line came in contact with the plant's power lines. The load line became energized causing the death by electrocution of an Abel-Howe employee and, while fortunately not injuring the crane operator, exposed respondent's employee to an extremely hazardous condition. The accident scene was inspected by a compliance officer. Based upon his investigative findings, the Secretary of Labor, complainant, issued a citation alleging a serious violation of the Act for respondent's failure to comply with the standard at 29 CFR 1926.550(a)(15)(i) n1 and proposed that a penalty [*3] of $600 be assessed for the alleged violation. Respondent contested the citation and proposed penalty.

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n1 The standard reads as follows:

1926.550 Cranes and derricks

(a) General requirements . . .

(15) Except where electric 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;

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The matter was heard by Judge Wienman on June 26, 1973. In his decision, the Judge affirmed both the citation and the proposed penalty. He found that "with the exercise of reasonable diligence Respondent should have known of and avoided the violation." The Judge noted that "[a] clear instruction to its employees [*4] forbidding operation of cranes in violation of the standard was all that was necessary."

On November 22, 1973, respondent filed a petition for discretionary review wherein it took exception to the Judge's decision on six specific issues. These same issues were contained in respondent's post-hearing brief to the Judge and, in substance, are covered by the two issues raised by Chairman Moran in his direction for review.

The issues on review are as follows:

1. Whether an employer charged with a section 5(a)(2) violation of the Act may be held liable when, without his knowledge, a violation results from an experienced and unsupervised employee's disregard of safety instructions which, if followed, would have resulted in compliance. 2. Whether the complainant can prove a violation of 29 CFR 1926.550(a)(15)(i) without introducing evidence, other than hearsay, establishing the voltage of the transmission line in question.

II.

On the morning of the accident, respondent's employee drove a 30 ton crane from respondent's yard to Abel-Howe's worksite. The worksite for that day was an electric power plant. The crane operator's supervisor also reported to the site for 5 or [*5] 10 minutes and, while the crane had not yet been positioned, he noticed that it was parked close to the position of its ultimate use -- near the power lines. The supervisor knew how the crane was to be used, but he did not know where on the site the crane was to be positioned. Despite the rather obvious power line hazard, respondent's supervisor did not consider it necessary to request specific information on the intended position of the crane since "they [prime contractors] don't like us telling them how to run the job. And if you do, you are usually sent off the job."

The crane operator, a man with three years' experience, was given only general safety instructions before the accident. As the Judge notes in page 4 of his decision the crane operator's supervisor did not actually say "[y]ou've got to work, you know 10 or 15 feet" from high voltage lines.

The compliance officer's investigation as well as the crane operator's testimony establish that respondent's crane was operating with its boom fully extended above the power lines between the power plant's doorway and the energized lines. The distance from the doorway to the power lines, at its widest point, was calculated [*6] by the compliance officer to be about eight feet. Thus, if the crane was operating between the doorway and the power lines in an area eight feet wide, the crane was perforce operating within ten feet to the energized power lines, as proscribed by the standard. The respondent challenges the Judge's use of the calculation, but the calculation seems reasonable to me. The compliance officer's testimony further revealed that such crane operations expose the crane operator and any other workers engaged in positioning the load to an extreme electrical hazard that could easily result in serious physical injury or, as in this case, death. n2

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n2 A respondent's responsibility under the Act is not limited merely to preventing his employees from being endangered by a hazardous condition, but extends to all employees who might reasonably have access to the danger. See Brennan v. O.S.H.R.C. & Underhill Constr. Corp., Nos. 74-1579, 74-1568 (2d Cir., March 10, 1975); Robert E. Lee Plumbers, Inc., No. 2431 (May 2, 1975) (Cleary, Commissioner, concurring); West Allis Lime & Cement Co., No. 1324 (December 23, 1974) (Cleary, Commissioner, dissenting).

[*7]

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It is clear that a respondent has a duty to take all feasible measures to protect all of its employees, not just those employees who are inexperienced and closely supervised. Brennan v. O.S.H.R.C. & Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946 (3rd Cir. 1974); National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). Indeed, the Act itself speaks out to indicate that its basic purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (emphasis added). Section 2(b).

Section 17(k) of the Act states, in pertinent part, that "a serious violation shall be deemed to exist . . . unless the employer did not or could not with the exercise of reasonable diligence, know of the presence of the violation" (emphasis added). n3 In Wabash Ry. Co. v. McDaniels, 107 U.S. 454, 460 (1883), Mr. Justice Harlan, speaking generally of the duty owed by employers to provide safe working conditions, said:

[R]easonable diligence implies, as between the employer and employee, [*8] such watchfulness, caution, and foresight as, under all the circumstances of the particular service, a corporation controlled by careful, prudent officers ought to exercise (emphasis added).

While these words by Mr. Justice Harlan were written some time ago and under different circumstances, the identical term is at issue and, thus, his description of "reasonable diligence" is not without significance.

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n3 When human life or limb is at stake any violation of a standard would seem to be "serious" in the absence of an employer making a showing under the "unless" clause quoted in the text. Cf. California Stevedore & Ballast Co. v. O.S.H.R.C., No. 73-3103 (9th Cir., May 21, 1975). But see Brennan v. O.S.H.R.C. and Raymond Hendrix d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975).

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Reasonable diligence would dictate that the supervisor, recognizing that the crane was to operate around a power plant, would either ask where on the site the crane was to be used; specifically caution the [*9] operator about operations near power lines; or both. These are reasonable precautions. Certainly such actions by the supervisor, since he was already at the worksite, are "feasible" measures which could have been taken to prevent the employee from being exposed to a foreseeable and obvious electrical hazard.

III.

During his testimony, the Secretary's compliance officer was asked if he had determined the voltage carried by the power lines. He replied, "I was told it was a 13.8 line." Admittedly, the statement is hearsay, but nowhere in the record has respondent either challenged this testimony or offered any evidence in rebuttal. Accordingly, the testimony would seem within the exception to the hearsay rule in Rule 803 (24) of the new Federal Rules of Evidence, Pub. Law 93-595, which will soon be effective.

Also, the validity of a finding in an administrative proceeding is established by determining whether, upon consideration of the record as a whole, the finding is in accordance with the reliable, probative and substantial evidence, 5 U.S.C. 556(d) (Administrative Procedure Act). Applying this provision, this Commission, in B & K Paving, No. 59 (September 5, [*10] 1974), citing Richardson v. Perales, 402 U.S. 389 (1971), specifically held that hearsay evidence, under circumstances such as those before us, is "sufficiently probative to support a finding of a violation."

Therefore, I conclude that the compliance officer's testimony as to the voltage in the power lines is sufficient to support a finding of a violation of the Act for failure to comply with the standard at 29 CFR 1926.550(a)(15)(i).

On the matter of reliability of this testimony of the compliance officer, we know, from the direct testimony of witnesses and an employee's electrocution, that the power lines were energized. The standards at 29 CFR 1926.550, with regard to minimum clearance of cranes from power lines, basically provide two categories. One standard, 1926.550(a)(15)(i), n4 is applicable to those power lines rated 50 kv or below and the other standard, 1926.550(a)(15)(ii), n5 finds application in those situations where the power lines are rated over 50 kv. The latter standard has the more stringent requirements. Therefore, knowing that the lines were energized, the voltage had to be either above, below or at 50 kv. Since respondent was cited under [*11] the standard applying to those power lines rated 50 kv or below, it had no reason to dispute the compliance officer's testimony and argue for the application of the more stringent standard.

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n4 See note 1 supra.

n5 The standard provides as follows:

1926.550 Cranes and Derricks

(a) General requirements. . .

(15) Except where electric 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:

(ii) For lines rated over 50 kv., minimum clearance between the lines and any part of the crane or load shall be 10 feet plus 0.4 inch for each 1 kv. over 50 kv., or twice the length of the line insulator, but never less than 10 feet;

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Accordingly, I would affirm the decision of Judge Alan Wienman in all respects. [*12]

[The Judge's decision referred to herein follows]

WIENMAN, 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 a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleged on the basis of an inspection of a workplace under the ownership, operation or control of the Respondent, that the Respondent violated the Act by failing to comply with an Occupational Safety and Health Standard promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation for Serious Violation, which was issued on March 26, 1973, alleges that the violation results from a failure to comply with the standard promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 FR 243), and codified in 29 CFR 1926.550(a)(15)(i). The description of the alleged violation contained on said Citation states:

(Iowa State University Power House, Northeast Corner.) A thirty-ton Grove truck crane with a hydraulic boom was operated closer than the required minimum of ten feet from [*13] high voltage lines under 50 kv at the Iowa State University Power House.

The standard as promulgated by the Secretary provides 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;

Pursuant to the enforcement procedures set forth in Section 19(a) of the Act, Respondent was notified by letter dated March 26, 1973, from Warren Wright, Area Director, Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess a penalty for the violation alleged in the amount of $600.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Des Moines, Iowa, on June 26, 1973.

THE ISSUES

No jurisdictional [*14] questions are in issue, the parties having stipulated facts sufficient to establish that the Respondent is subject to the Act, and that the Commission has jurisdiction of parties and subject matter. The primary issue for resolution, therefore, is whether the Respondent violated the safety standard as alleged in the Citation, and, if so, what penalty is appropriate.

SUMMARY OF THE EVIDENCE AND DISCUSSION

The Citation for Serious Violation which initiated this proceedings was issued after an Occupational Safety and Health Review Administration Compliance Officer, Uldis Sid Levalds, investigated a fatal accident which occurred February 12, 1973, at a jobsite at the Iowa State University power plant. Mr. Levalds testified that he determined the cause of an ironworker's death had been electrocution with current flowing through a crane and a loaded hatch which the deceased was holding at the time.

The crane in question, a Grove 30 ton-truck crane, was owned by Respondent and had been rented to Abell Howe Company, a building contractor, by the hour on a fully maintained and operated basis. At the time of the accident, the crane operator was one Kenneth Stromley, an employee [*15] with about three years experience as a crane operator.

Compliance Officer Levalds concluded that the crane had been operated in violation of OSHA Standards, Section 1926.550(a)(15)(i) which required a minimum clearance of 10 feet between power transmission lines rated 50 kv or below and any part of the crane or load.

On cross-examination Levalds stated that his information was obtained from interviews with eyewitnesses: the crane operator Stromley, and an ironworker, Whitezel, who had been working with the decedent. They indicated that at the time of the accident a metal door frame was being brought from the building through an overhead door.

Levalds measured the distance between the east door jamb of the overhead door to a point directly under the power transmission lines. He testified that he came up with an approximation of eight feet.

Considerable testimony was devoted to Respondent's safety program and instructions to crane operators. Earl Rusher, Respondent's crane superintendent, testified that the operators are instructed to "set the machine down, call me or pull the machine out" if a job appears unsafe. He had instructed them about operating cranes near high voltage [*16] power lines but added: "I can't say that I have actually come out and said, you've got to work, you know, 10 or 15 feet."

Richard Boyd, Respondent's dispatcher on February 12, 1973, testified that he had also served as Safety Officer, and discussed safety matters with the operators on a daily basis "formally and informally." However, he could not recall any specific discussion concerning operation of cranes around power lines. He described the daily safety discussions as "a kind of a bull session" with the men discussing how a job was operated when they came back. Richard Duesenberg, Vice-President, testified that the business, now known as Ames Crane and Rental Service, was purchased from a firm experiencing financial difficulty on September 1, 1972. Most of the equipment "was not up to the new safety standards" and was replaced with new equipment which complied with the standards.

Safety literature and material in the form of American Road Builders Contractors Safety manual (consisting of several hundred pages) and copies of the Federal Register containing construction safety standards were made available in Respondent's office, but no written safety program was developed. [*17] Respondent did not hold regularly scheduled safety meetings because of the difficulty of having all operators present at the same time.

Kenneth Stromley testified that he had frequent discussions with his supervisor with regard to the safe operation of cranes. He had been instructed not to perform any operations he deemed to be hazardous. However, on cross-examination he admitted that prior to the accident he had never been instructed not to operate within 10 feet of a power transmission line. n1

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n1 Q. - Were you given any instructions after the accident on safe operations of the crane?

A. - Yes.

Q. - And what were those instructions?

A. - Well, I was told I was to be ten feet, which I did not know.

Q. - You didn't know that at the time of the accident?

A. - No sir.

Q. - But you were told that after the accident?

A. - Yes."

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Stromley stated that he did not like the situation at the power plant jobsite because of the closeness of the power lines, but did not want to cause difficulty and went ahead with the [*18] job. He estimated the distance from the doorway to a point below the power lines was "10, 12 feet." He made no measurement.

Stromley testified that two loads were lifted from the building but on the third load "the person that got killed pulled the lines into the wire." The load line became energized when the ironworkers swung it out from the building in preparation for raising the third load.

Respondent, in an industrious brief, urges six major propositions in support of its position that the Citation and Proposed Penalties be vacated:

(1) Respondent did not have control or supervision of the workplace.

(2) The evidence failed to establish that any part of the crane or load was within 10 feet of transmission lines.

(3) The evidence relative to voltage was hearsay only and that it was not competent proof that the voltage was sufficient to establish the alleged violation.

(4) Stromley operated the crane in direct contradiction of Respondent's stated policy and express instructions.

(5) None of Respondent's employees were exposed to any hazard.

(6) Respondent had no knowledge of or reason to know of the use of its equipment in proximity to power lines or in any unsafe [*19] manner.

Serious consideration has been accorded all the foregoing contentions and each merits discussion:

(1) The evidence squarely contradicts any theory that Respondent exercised no control over the workplace. The workplace in question was the area in which the 30 ton Grove crane was operating. The customary operating procedure, described in detail by Respondent's witnesses allows the contractor-renter to position the crane and direct its movements, but the crane operator retains final authority to determine the safety of operation and to shut the job down if he deems conditions unsafe. This arrangement is consistent with the testimony of Respondent's Vice-President that it is important to have an experienced operator because there are dangers in connection with cranes "which the ordinary person is not familiar with." n2

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n2 In view of the evidence it is unnecessary to discuss the legal situation which might pertain if Respondent had yielded all control of the crane operation to the contractor-renter or sought to delegate its duties by express agreement. A crane rental case which presents that situation is now under review by the Commission in Hodgson v. Frohlick Crane Service, In that case the Respondent introduced a "Standard Short Term Rental Agreement" containing the following language: ". . . Lessee agrees that the equipment and all persons operating such equipment, including lessor's employees, are under lessee's exclusive jurisdiction, supervision and control . . ." Judge Morris found against the Respondent despite the rental agreement, holding the duty to furnish a safe workplace personal to the employer and one which cannot be avoided by delegation to another.

[*20]

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(2) The evidence is persuasive that minimum clearance of 10 feet was not maintained between the transmission lines and "any part of the crane or load." Two witnesses, Compliance Officer Levalds and Crane Operator Stromley, offered testimony on this point, and there was a marked difference in the quality of their observations.

The Compliance Officer described his efforts to measure the critical distance. He positioned himself directly below the lines and a tape was drawn to him from the east door jamb of the overhead door. The measurement was 8 feet. Mr. Levalds also stated that drawing measurement was made by an ISU staff member. A sketch of the power house transmission lines arrangement was introduced in evidence as Exhibit G-1 showing lines angling away from the building frame from a tower located west of the overhead door. As portrayed on the sketch, a measurement from the east door jamb to the lines would represent a greater distance than a measurement made from either the center of the door to the lines or from the west door jamb to the lines.

Stromley testified that he made no measurement [*21] of the distance from the doorway to the lines but estimated the distance at 10 to 12 feet. At the request of Complainant's counsel he drew a box and an arrow on Exhibit G-1. It is clear that he was hoisting loads between the lines and the building. Even assuming Stromley's visual estimate of 10 to 12 feet was more accurate than the Compliance Officer's tape -- aided approximation, swinging the load in order to obtain hoisting clearance for a metal door frame described as 42" wide by 87" long would violate the clearance requirement.

Stromley's testimony was somewhat contradictory as to whether there was actual contact between the load line and the transmission wires. At one point he stated that the load line made contact but he later added, "Well, it hasn't been proven it touched the line." He stressed, however, that the load was swung from the building by the ironworker. This was the normal procedure before a load could be raised or lowered.

A finding that minimum clearance of 10 feet was not maintained is amply supported by reliable, probative, and substantial evidence, and we find Complainant has carried its burden of persuasion to establish a prima facie [*22] violation of 29 CFR 1926.550(a)(15)(i).

(3) Respondent's objection to the quality of the proof relative to the transmission line voltage appears meretricious in view of the purposes of the voltage classification in the regulation. Respondent was charged with violation of subsection (i) of 29 CFR 1926.550(2)(15). Subsection (i) establishes a minimum clearance of 10 feet for lines rates 50 kv or below. Greater clearance distances are mandated in subsection (ii) for lines rated over 50 kv.

The Compliance Officer's testimony as to the voltage was clearly hearsay ("I was told it was a 13.8 kv line."). However, no objection was lodged at the time, and Respondent introduced no proof that the lines were rated at a greater or lesser capacity. The only conceivable purpose of such a showing would have been to support a theory that Respondent was charged under the wrong standard if the lines were rated over 50 kv. As heretofore indicated, it is our view that Complainant established a prima facie violation of the cited standard.

(4) The contention that the Citation should be vacated because Kenneth Stromley operated the crane in direct violation of Respondent's stated policy [*23] and express instructions received dismal support in the record. Although the Respondent had a designated safety officer, its safety program was a sometimes thing -- informal bull sessions among operators after they returned from jobs, copies of OSHA Regulations and the American Road Builders Contractors' Safety Manual (consisting of several hundred pages) available for reading in the office, and general instructions not to proceed with a job if it appears dangerous.

Respondent had no written safety program, and prior to the fatal accident had never instructed Stromley relative to safe clearance distances when operating near power transmission lines. Stromley's testimony on this critical point was consistent with that of his superior, Earl Rusher, who admitted he had never ordered his operators to work a given number of feet from power lines. Rusher's testimony also cast doubt on the suggestion that Stromley had violated specific instructions and express company policy: ". . . I didn't realize they were going to be hoisting by those wires. At the time if I had known they were going to hoist there I probably (Emphasis supplied) would have stopped them . . ."

The record also [*24] contains some ominous testimony from Stromley and Rusher that halting work because of safety considerations led to difficulties with Respondent's customers. Stromley testified that he had never been reprimanded by his employer or discouraged from refusing to operate a crane under unsafe conditions, but on the fatal occasion a desire not to say "no" too often was a factor in his thinking.

Subsequent to the accident Stromley was instructed not to operate a crane within 10 feet of power lines and plates and stickers containing this instruction were fastened inside the cab of each crane. It is a fair inference that Respondent now has an express policy forbidding operation in violation of 29 CFR 1926.550(a)(15)(i), but the record does not reveal any such policy on February 12, 1973. If any such policy then existed it was not clearly, consistently, or sufficiently communicated to the crane operators, much less strictly enforced.

(5) The Compliance Officer testified that operation of a crane in proximity to transmission lines could cause the crane to become energized and thereby electrocute the crane operator. This plausible testimony was unrebutted, and it is a fair conclusion [*25] that one of Respondent's employees, the crane operator, was exposed to the hazard in question.

(6) The question of whether Respondent had knowledge of or reason to know of the operation of the crane in dangerous proximity to power transmission lines relates to the classification of the violation under the Act. Respondent is charged with a "serious violation," a term defined in Section 17(k) of the Act:

. . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more . . . operations . . . which have been adopted or are in use . . . unless such employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

In the instant case the proof establishes a violation of a safety standard with a substantial probability of death or serious physical harm the likely result of the unsafe action. Sans the element of employer's knowledge, as defined in Section 17(k), the Respondent can be found guilty of a non-serious violation of the Act, and, as stated in Section 17(c), "may be assessed a civil [*26] penalty of up to $1,000 . . ." If the requisite knowledge for a serious violation be proven, then, under Section 17(b) the employer "shall be assessed a civil penalty of up to $1,000."

Chairman Moran has written a number of dissents to Commission Decisions pointing out that from the standpoint of the Respondent the distinction between "non-serious" and "serious" violations of the Act may be one without a difference since both types of violation incur the possibility of civil penalties of identical scope. In a footnote to his opinion in Automatic Elevator Corporation,

There is a distinction in the burden of proof but its ultimate effect is a distinction without a difference since complainant, upon failing to establish the employer's knowledge of a danger likely to cause death or serious harm as required in section 17(k), could still prevail if a non-serious violation of the Act were found. Such a finding would permit the assessment of a penalty in the exact same amount as that proposed for the allegedly "serious" violation.

The foregoing discussion is included in this decision because the undersigned Judge is persuaded that the [*27] Respondent is clearly guilty of a violation of the standard and should be the subject of a civil penalty even if Complainant had failed to carry its burden of proof on the knowledge issue. However, it would also appear that with the exercise of reasonable diligence the employer herein could have obtained knowledge of the situation.

The record does not indicate that Respondent had any actual knowledge of the operation of the crane in dangerous proximity to the wires although its crane superintendent had visited the general area of the jobiste. Respondent had constructive knowledge if Stromley's knowledge could be imputed to his employer, a theory we are loathe to accept in a situation where an employee makes a sole decision to proceed with a dangerous operation.

Despite the fact that Respondent had neither actual or constructive knowledge of the situation, we are persuaded that with the exercise of reasonable diligence Respondent should have known of and avoided the violation. A clear instruction to its employees forbidding operation of cranes in violation of the standard was all that was necessary. Stromley would then have had an express duty to report if the contractor insisted [*28] on proceeding with the unsafe operation.

It is Respondent's lack of diligence in instructing its employees in the safe operation of cranes which is the gravamen of the offense, and which, under the circumstances, establishes the violation as "serious," under the terms of Section 17(k) of the Act.

The undersigned Judge has also reviewed the testimony relative to the computation of the proposed penalty. We do not agree with the Secretary's formula approach, but do find that a penalty of $600 is appropriate given the gravity of the violation, the size of the company, its good faith and previous safety history.

FINDINGS OF FACT

1. Respondent, Ames Crane and Rental Service, Incorporated, a Corporation, with its principal office at 127 Freel Road, Ames, Iowa, is engaged in a business affecting commerce.

2. On February 12, 1973, Respondent rented a Grove 30 ton truck crane to Abell Howe Company for use by Abell-Howe at a jobsite at the Iowa State University Power Plant. The crane was rented on a fully maintained and operated basis, and was operated by Kenneth Stromley, an employee of the Respondent.

3. On February 12, 1973, the crane was positioned near the northeast [*29] corner of the building at the direction of an ironworker employed by Abell-Howe and was employed to hoist steel from an overhead door on the north side of the building to the roof of the power plant. The roof of the power plant was approximately 70 feet above ground level.

4. In the course of the aforesaid hoisting operation the crane load lines and load were placed between the north side of the power plant and certain energized electrical transmission lines carrying a voltgage of 13.8 kv. The power lines were approximately 30 feet above the ground running in a generally east-west direction, angling away from the building to the east.

5. Uldis Sid Levalds, an OSHA Compliance Officer, measured the distance from the east door jamb of the overhead door to a point directly below the power transmission lines; said distance was 8 feet.

6. Operation of the crane on February 12, 1973, was performed without maintaining a minimum clearance of 10 feet between all parts of crane or load and energized electrical transmission lines rated 500 kv or below.

7. The evidence failed to reveal the erection of any insulating barriers to prevent physical contact with these lines, equipment, or [*30] machine.

8. The evidence established that Respondent had no express policy forbidding operation of cranes within 10 feet of energized electrical transmission lines on or before February 12, 1972, and had also failed to instruct its crane operators to halt all operations and report all instances where contractors requested operation of cranes within proscribed clearance distances.

CONCLUSIONS OF LAW

1. At all times involved in this matter, the Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, and the Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein pursuant to Section 10(c) of the Act.

2. Section 5(a)(2) of the Act imposes a duty on the Respondent to comply with the safety and health regulations promulgated by the Secretary of Labor pursuant to Section 6(a)(2) of the Act.

3. Respondent violated Section 5(a)(2) of the Act by its noncompliance with the safety regulations codified as 29 CFR 1926.550(a)(15)(i) as alleged in the Citation for Serious Violation issued to Respondent on March 26, 1973. There was a substantial probability that [*31] death or serious physical harm could have resulted to one of Respondent's employees from said violation, and Respondent, with the exercise of reasonable diligence, could have known of the presence of the violation. The violation constituted a Serious Violation within the meaning of Section 17(k) of the Act. A penalty of $600 is deemed appropriate considering the gravity of the violation, the size of Respondent's business, the good faith of Respondent, and Respondent's history.

ORDER

The Citation for Serious Violation Issued Respondent on March 26, 1973, is hereby affirmed and a penalty of $600 is hereby assessed for said Serious Violation.