Docket No. 832

WINSLOW CRANE SERVICE, INC.

OSHRC Docket No. 832

Occupational Safety and Health Review Commission

July 23, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 18, 1973, Judge John J. Morris issued his decision and order in this case, n1 vacating the Secretary's citation for serious violation, affirming both items of the citation for other than serious violations and assessing a $75 penalty.

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n1 The instant decision involves only the above referenced case and is concerned only with that part of the Judge's decision relating to it. The issue under review is irrelevant to Docket No. 831 with which this case was consolidated for hearing.

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On February 12, 1973, former Commissioner Burch directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590).

The Commission has reviewed the parties' submissions and has considered the entire record. We adopt the Judge's decision insofar as it is consistent with the following.

Review was directed to determine whether respondent was in compliance with 29 CFR 1926.550(a)(5) and (b)(2) of the Safety and Health Regulations For Construction. Those sections read as follows:

(5) The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

(2) 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 B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.

Respondent was cited for violating these standards as follows:

The crane in use was not inspected to detect deficiencies and have them repaired to make sure crane was in a safe operating condition.

Evidence of record establishes that respondent knowingly operated a crane after its own inspection, as well as an independent inspection, indicated that the crane was missing a brace. Respondent failed to replace the part because it determined that the brace was unnecessary to the safe and efficient operation of the crane. Respondent's actions render it in compliance with that part of the standard relating to the designation of a competent person to inspect the equipment. See Secretary of Labor v. Gerosa, Inc.,

The remaining issue for determination is whether the judgment of respondent's personnel that the crane was in safe operating condition is sustainable, thus placing respondent in full compliance with subsection (5) of 29 CFR 1926.550(a). The record in this case fails to identify the exact missing brace and is devoid of convincing expert testimony (such as that which presumably could have been adduced by the manufacturer of the crane) with respect to whether the crane was in safe operating condition without the brace or whether the missing brace constituted a deficiency, within the meaning of the standard. Our reading of the standard does not place the burden of establishing safe use upon respondent. The burden of proof regarding this issue rests with the Secretary n2 and in the absence of that burden having been sustained by evidence that the crane was not in safe operating condition, the alleged violation is not established.

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n2 Commission Rules of Procedure, 29 CFR 2200.73.

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It is ORDERED that the Judge's decision be modified in accordance with this opinion and that item 1 of the citation for other than serious violation and the proposed $75 penalty be vacated.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur. Clearly, the cited standard only requires correction of those deficiencies that affect the safe operating condition of the crane.

[Judge's decision referred to herein follows]

MORRIS, JUDGE, OSAHRC: 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 certain Citations issued by the Complainant against the Respondents under the authority vested in Complainant by Section 9(a) of that Act. This cause is a consolidated trial of the two cases enumerated above.

The Citations against both Respondents allege that Complainant inspected a workplace under the ownership, operation or control of Respondents located at Platte Canyon and Clifton Roads, and south of the 6300 block of Chatfield and described as follows: pipe line installation. It is further alleged that Respondents violated Section 5(a)(2) of the Act by failing to comply with occupational safety and health standards promulgated by Complainant, pursuant to Section 6 thereof. It is alleged that the standards violated were duly published in the Federal Register and subsequently recodified in the Code of Federal Regulations as hereinafter described.

The inspection of the worksite took place April 4, 1972 (Tr. 92). The inspection took place as the result of a fatality at the site that occurred April 3, 1972 (Tr. 92). The Citations against Respondent Winslow Crane Service, Inc., hereafter called Winslow, were issued April 14, 1972. The Citations against Holsom Concrete Products Company, Inc., hereafter called Holsom, were issued April 17, 1972.

CITATIONS AS TO HOLSOM CONCRETE PRODUCTS, INC.

The description of the violation alleged in Citation Number 1 for serious violation contained in Cause Number 831 states as follows:

Employees were exposed to danger from electrical shock while hooking up slings, from a crane, that was operating in close proximity to live high voltage electric wires.

The Citation alleges that the standard violated is 29 CFR 1518.550(a)(15).

The pertinent portions of preceding standard [now 29 CFR 1926.550] as promulgated by the Secretary provides as follows:

29 CFR 1926.500 Cranes and derricks.

(a) General requirements. (1) The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks. Where manufacturer's specifications are not available the limitations assigned to the equipment shall be based in the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded. Attachments used with cranes shall not exceed the capacity, rating, or scope recommended by the manufacturer.

(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 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:

(iii) In transit with no load and boom lowered, the equipment clearance shall be a minimum of 4 feet for voltages over 50 kV., and 10 feet for voltage over 50kV. up to and including 345 kV., and 16 feet for voltages up to and including 750 kV.

(iv) A person shall be designated to observe clearance of the equipment and give timely warning for all operations where it is difficult for the operator to maintain the desired clearance by visual means;

(v) Cage-type boom guards, insulating links, or proximity warning devices may be used on cranes, but the use of such devices shall not alter the requirements of any other regulation of this part even if such device is required by law or regulation;

(vi) Any overhead wire shall be considered to be an energized line unless and until the person owning such line or the electrical utility authorities indicate that is is not an energized line and it has been visibly grounded:

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act, the Respondent was notified of a proposed penalty by letter dated April 17, 1972, from J. J. Williams, Area Director, Occupational Safety and Health administration for the U.S. Department of Labor; the Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $600.00.

The description of the other than serious violation alleged in Citation Number 1, Item 1 in Cause Number 831 states as follows:

Employees in an excavation-were exposed to danger from moving ground that was not guarded by a shoring system, sloping of the ground, or some other equivalent means.

The Citation alleges that the standard violated is 29 CFR 1518.651(c).

The preceding standard [now 29 CFR 1926.651] as promulgated by the Secretary provides as follows:

29 CFR 1926.651 Specific excavation requirements.

(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified of a proposed penalty in the manner more specifically set forth in paragraph I hereof; the Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $60.00.

III

The description of the other than serious violation alleged in Citation Number 1, Item 2 in Cause Number 831 states as follows:

Ladder used for ingress & egress in and out of the excavation was not extended 36 inches above the landing or ground surface.

The Citation alleges that the standard violated is 29 CFR 1518.651(y).

The preceding standard [now 29 CFR 1926.651] as promulgated by the Secretary provides as follows:

29 CFR 1926.651 Specific Excavation Requirements.

(y) All ladders used on excavation operations shall be in accordance with the requirements of Subpart L of this part.

Subpart L provides as follows:

(L) Materials used for sheeting, sheet piling, cribbing, bracing, shoring, and underpinning shall be in good serviceable condition, and timbers shall be sound, free from large or loose knots, and of proper dimensions.

The description of the other than serious violation alleged in Citation Number 1, Item 3 in Cause Number 831 states as follows:

Notice to employees was not posted at the job site, as required, to inform them of their rights under the Act.

The Citation alleges that the standard violated is 29 CFR 1903.2.

After hearing the evidence as to this alleged violation Counsel for Complainant conceded that no violation occurred hence it is not necessary to consider the terms of the standards. The penalty proposed for the violation alleged in this paragraph was $100.

The description of the violation alleged in Citation Number 1, Item 4 in Cause Number 831 states as follows:

No log of Occupational Injuries and Illnesses was maintained at jobsite as required by the Act.

The Citation alleges that the standard violated is 29 CFR 1904.2.

CITATIONS AS TO WINSLOW CRANE SERVICE COMPANY, INC.

The description of the violation alleged in the Citation for serious violation in Cause Number 832 states as follows:

A crane was operated in close proximity to live high voltage electric wires and not observing the minimum clearance between the lines and any part of the crane.

The preceding Citation alleges that the standard violated is 29 CFR 1518.550(a)(15).

The standard [now 29 CFR 1926.550] as promulgated by the Secretary provides as follows:

This standard is specifically set forth in Paragraph I, supra, which Standard is referred to by reference as if fully set forth herein.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified of a proposed penalty by letter dated April 14, 1972 from J. J. Williams, Area Director Occupational Safety and Health Administration for the U.S. Department of Labor; the Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $600.

VII

The description of the other than serious violation alleged in Citation Number 1, Item 1 in Cause Number 832 states as follows:

The crane in use was not inspected to detect deficiencies and have them repaired to make sure crane was in a safe operating condition.

The Citation alleges that the standard violated is 29 CFR 1518.550(a)(5) and 1518.550(b)(2).

The preceding standard [now 29 CFR 1926.550] as promulgated by the Secretary provides as follows:

29 CFR 1926.550 Cranes and derricks.

(a) General Requirements. This standard is specifically set forth in Paragraph I, Supra, which standard is referred to by reference as fully set forth herein.

29 CFR 1926.550(a)(5) Cranes and derricks.

(5) The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act the Respondent was notified of a proposed penalty in a manner more specifically set forth in paragraph VI hereto; the Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $75.

VIII

The description of the other than serious violation alleged in Citation Number 1, Item 2 in Cause Number 832 states as follows:

An accessible fire extinguisher of 5 BC rating or higher, was not available at the operator's station or cab of the crane.

The Citation alleges that the standard violated is 29 CFR 1518.550(a)(14).

The preceding standard [now 29 CFR 1926.550] as promulgated by the Secretary provides as follows:

29 CFR 1926.550 Cranes and derricks.

(14) Fuel tank filler pipe shall be located in such a position, or protected in such manner, as to not allow spill or overflow to run onto the engine, exhaust, or electrical equipment of any machine being fueled.

(i) An accessible fire extinguisher of 5 BC rating, or higher, shall be available at all operator stations or cabs of equipment.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified of a proposed penalty in the manner more specifically set forth in paragraph VI hereof; the Area Director proposed to assess no monetary penalty for the violation alleged in this paragraph.

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 Denver, Colorado on September 21, 1972. No parties desired to intervene in the proceedings. The Citations and Notice of the Hearing were duly posted (stipulation, i).

STATEMENT OF JURISDICTION

The parties stipulated that both of the Respondent Corporations in this consolidated case were engaged in a business effecting interstate commerce at the time of the alleged violations. The record further reflects that the cranes used by Respondents were manufactured in other states and purchased in Colorado and come out of the interstate commerce system (stipulation b, Tr. 6).

Under Section 3 of the Act an employer is defined as follows:

(5) The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a state.

In view of the stipulation in the case and the statements of Counsel it follows that the Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this litigation and the undersigned has jurisdiction to hear and determine this cause upon the assignment from the Review Commission.

THE EVIDENCE

The construction contracts involving both of these Respondents were entered into January 12, 1971 and the advertisement for those contracts was six weeks prior to that date (Tr. 6-7).

Raleigh Kay, a Compliance Officer for the Occupational Safety and Health Administration for the United States Department of Labor inspected the worksite in question on April 4, 1972 which was the day following a fatal accident on the premises (Tr. 92). Respondents are separate Colorado corporations (Tr. 25, 29-30) operating out of the same office (Tr. 29-30). Respondent Winslow Crane Service, hereafter referred to as Winslow, rents cranes to other companies (Tr. 29-30). Respondent Holsom Concrete Products, hereafter referred to as Holsom, is primarily involved in pipe line construction (Tr. 29-30). Winslow was the owner and operator of the crane (Tr. 9). It is the general practice in the industry to rent such a piece of equipment with an operator to a contractor on a fixed hourly wage (Tr. 26).

Darryl Shadrick, who died of electrocution, was the person giving the signals to the crane operator (Tr. 29, 30, 34). The deceased, an employee of Holsom, was familiar with crane signals (Tr. Stip. (C), 35, 43-44) and knew how to direct a crane (Tr. 54). The deceased had been told of the dangers relating to transmission line (Tr. 51).

This accident occurred April 3, 1972 (Tr. 22); the operator of the crane had been with Winslow 13 years. The general superintendent for Holsom directed the employees of Holsom to pick up a blind flange which is a piece of sheet steel (Tr. 31, 34, 36) about 30 feet in diameter and 1 inch thick (Tr. 36, 37).

The boom on the crane was 40 to 45 feet, at a 45 degree angle and truck mounted (Tr. 37). The crane was situated 25 to 30 feet from the power line (Tr. 37, 39, 40). The equipment was working parallel with the power line (Tr. 34) and there was no reason to worry about the power line except by swinging into it. The extended boom of the crane presents a visual problem to the operator (Tr. 35). The procedure used on this jobsite was to direct the crane within twenty or thirty feet of the power line and then let out the cable. The cable would then be taken underneath the power lines and hooked to the blind flange with a shackle; the operator could then swing the boom away and remove the flanges (Tr. 51, 53). The power line was described as consisting of 4 lines (Tr. 72) and twenty feet above the ground (Tr. 66); according to the public service company it was 23 feet 6 inches high carrying 6,620 volts (Tr. 103).

The crane operator followed the deceased's signals exactly until he saw the deceased grab the cable with both hands at which time the operator pulled the boom in the other direction (Tr. 87). The deceased had signaled Winslow's operator on prior occasions with no difficulties (Tr. 82) and the deceased had been told to watch that they didn't get any closer to the power line than 15 feet (Tr. 81). The flanges were located five feet from an imaginary line drawn on the ground underneath the power lines (Tr. 66, 72, 74) though the downward measurement would be twenty to thirty feet (Tr. 65). To locate the flanges in another manner: an imaginary straight line from the power line would strike the ground about five feet from the flanges (Tr. 66, 72). Holsom's supervisors stated it was not necessary to position the boom directly over the blind flanges because the load could have been dragged sideways. Holsom's supervisor considered this a safe operating procedure (Tr. 48). Some of the flanges had already been moved in this fashion with the assistance of the crane (Tr. 51). The crane operator did not see the equipment strike the power line (Tr. 56), but only saw both of deceased's hands on the choker cable (Tr. 56) and "fire flying" (Tr. 57). There was no other source of electrical energy and the deceased was standing directly on a metal blind flange (Tr. 57), 58). The operator of the crane "felt" that the boom had been swung into the power line (Tr. 58). The only way the deceased could have received a charge of electricity is if the boom came in contact with the power lines (Tr. 80). Winslow's general manager (Tr. 11), A Civil Engineer, agreed that electricity will not arc more than an inch (Tr. 106). Someone other than the Respondents had set the blind flanges alongside the road (Tr. 24).

Respondents witnesses testified that the sun possibly affected Shadrick because from his particular angle he was looking back at the crane and the sun was in his eyes and this had caused some difficulty (Tr. 55, 56).

Winslow has had general safety instuctions in existence for 10 years (Tr. 14). Exhibits were introduced pertaining to safety directions used for the Winslow customers on crane rentals (Tr. 15). They have extensive safety courses one of them being for six weeks (Tr. 17). Both Respondents had given instructions, written and oral, not to operate a crane within 15 feet of any overhead wires (Tr. 13-16; Respondents Exhibit 1, 2, 3). Company time cards for each and every employee contained the following directive: "DO NOT" work within 15 feet of any power line (Respondents Exhibit 2, 3).

Employees were instructed through posters, arrows and warning notations (Tr. 18) and time cards (Respondents Exhibit 2 and 3).

Respondents regulations are broader than OSHA regulations in that they prohibit a crane from being closer than 15 feet from a power line, whereas OSHA regulations require 10 feet (Tr. 18). Winslow has had "Crane Safety Orders" printed and in existence for more than five years (Tr. 20). The written evidence indicates that there are specific directions that they are not to operate within 15 feet of overhead wires (Tr. 22-23). Further written directions are that any unsafe conditions are to be reported immediately (Tr. 23). [No report of an unsafe condition was reported in the instant situation (Tr. 23)]. A crane operator was told to be sure that he had someone signaling him (Tr. 49).

Both Respondents received a citation for serious violation of 29 CFR 1926.550(a)(15). [As set forth in paragraphs I and VI supra].

A Citation was issued against Holsom for exposing employees to danger from moving ground in an excavation (Tr. 130). The depth of the excavation was 8 feet and Holsom was pushing pipe down a ramp with a 16 foot wide bulldozer (Tr. 141). The excavation was 40 feet long to accept a 40 foot length of pipe (Tr. 142). The bottom of the excavation is in excess of 16 feet and the top of the excavation is in excess of 20 feet. The Board of Water Engineers of the City of Denver inspected the excavation daily (Tr. 131). The pit or excavation was "ramped out" at the end (Tr. 130) and employees entered or left the pit by walking the ramped area (Tr. 130). The soil character was shale (Tr. 131, 133). Holsom's general manager was familiar with the character of the soil as he had built the original highway under which the pipe was being passed (Tr. 133). The General Manager (Tr. 11) was of the opinion that there was no hazard to the men working in this position and they had never had any men killed in the ditches (Tr. 134-135). The excavation has stayed in this condition for three months and had not moved (Tr. 138).

In the judgment of the Compliance Officer the soil was clay; he had made one visit to the location (Tr. 137). Government (Complainant) Exhibits 1, 2 & 3 show the excavation in question.

Holsom received a Citation that it was using ladders for ingress and egress in and out of the excavation that did not extend 36 inches above the ground surface (Citation 1, item 2). According to Holsom's evidence the ladders were used to gain access to the top of the pipe (Tr. 153) for welding, wrapping and protecting same (Tr. 144). Individuals who did this work were not employees of Holsom (Tr. 154) but were welders. Twenty-six foot ladders were provided for getting onto the pipe (Tr. 145) but no ladders were provided for ingress and egress because of the ramp (Tr. 146).

In addition to the Citation for alleged serious violation stated above Winslow received a Citation for other than serious violation relating to a crane deficiency [The Citation and standard are set forth with particularity in paragraph VII hereof.] Winslow received a communication from the State of Colorado that a brace was missing on the Winslow's boom (Tr. 110). Respondent's inspection disclosed that the missing brace was a small 6 inch angle piece at the tip of the boom (Tr. 110, 111). Prior to that time Winslow's own inspection had not disclosed that it was missing (Tr. 114) but in the opinion of its' witness the missing brace would not effect the operational nor safety aspect of the crane (Tr. 113, 110). Winslow's regulation is that before the crane is started it must be inspected by the operator (Tr. 107). Prior inspection had indicated that it was in safe operating condition (Tr. 114). The Compliance Officer who examined the boom testified that the missing part was mid-way to the boom and was a diagonal piece about 30 inches in length (Tr. 115). In his judgment this missing piece would affect the safety boom in not allowing it to work at a full rated capacity (Tr. 116). Winslow claimed it designated a competent person to inspect the machinery (Tr. 119-120) and according to Winslow's evidence the missing piece would not effect the operation of the crane because it had never been altered since acquired and had been tested at rated capacity, and it was not being used near its rated capacity on this jobsite (Tr. 118).

Winslow also received a Citation for an other than serious violation in failing to provide fire extinguishers [the Citation and standard are set forth with particularity in paragraph VIII hereof]. As to this Citation Winslow admitted there was no fire extinguisher mounted or furnished with the crane (Tr. 126) but Winslow's interpretation is that the standard refers to fueling operations (Tr. 122-123, 124).

EVIDENCE AS TO PROPOSED PENALTIES

The proposed unadjusted penalty for the alleged serious violation against Winslow started at $1000 (Tr. 154); credits were given for good faith (10%), size (10%), and history (20%) (Tr. 155) for an eventual penalty of $600. Holsom was penalized on the same basis on the same credits for a net penalty of $600 for the same alleged serious violation (Tr. 156) [29 CFR 1926.550].

Additional penalties against Winslow resulted in a proposed penalty of $75 for failure to inspect and repair the crane (Tr. 157). The initial penalty was $250.00 (Tr. 156) and credits of 10%, 10%, 20% and 50% being respectively for good faith, size, history and abatement were allowed (Tr. 157). The lack of fire extinguisher item was on a no monetary penalty basis and this was considered a very nonserious item that wouldn't cause serious injury or direct hazard to employees (Tr. 154). Other than serious citations against Holsom resulted in proposed penalties as follows: for exposing employees in an excavation exposed to danger from moving ground as set forth with particularity in paragraph II there was a proposed penalty of $60. For failure to provide a ladder for egress and ingress, [as set forth with particularity in paragraph III] there was a proposed penalty of $30 (Complainant Exhibit II).

After hearing the evidence with respect to the posting of the informational poster and the maintaining of the log for Occupational injuries and illnesses [as set forth with particularity in paragraphs IV and V]. Complainant's Counsel conceded that there was no violation of 29 CFR 1903.2 and 29 CFR 1904.2 (Paragraph 8, Complainant's proposed conclusions of law.).

DISCUSSION OF THE ISSUES

Prior to a determination of whether any alleged violations occurred in these cases it is first necessary to consider two preliminary issues raised by Respondents.

Respondents urge that the standards are not applicable for the reason that the advertisement of the contracts herein occurred prior to the effective date of the Secretary's standards (Tr. 5). This point is ruled against Respondents: 29 CFR 1926.1050 provides that the effective date of the standards shall generally be April 24, 1971. The date of the inspection herein was almost a year later, namely, April 4, 1972.

Respondent Holsom urges that the incident involving the charge against Holsom "happened due to the carelessness of one employee who was not following Holsoms' standing instructions and specific directions at the time of the accident" (Respondent's formulation of issues, V). Under the now clearly established law the contributory negligence of an employee does not constitute a defense to an employer charged with a violation of the Act. The principles of the common law as to the "fault" concept, or the comparative duty concept are not relevent in the administration of the Act. The principle of law to be followed is clearly established in Secretary of Labor v. National Realty and Construction Company, Inc.,

1. c. 4: In common law, an employer's liability for injury to employees is subject to three defenses, viz., contributory negligence, fellow servant negligence and assumption of the risk (cases cited). We cannot perceive that Congress intended any of these defenses to be available to employers charged with violation of this Act. In point of fact, this legislation was intended to supercede and remove these vestiges of the industrial revolution from the field of Occupational Safety and Health.

This decision will initially consider the serious violations charged against each Respondent, ie. the Citations involving the alleged failure to maintain minimum clearance from power lines.

In the case of Secretary of Labor v. Dale M. Madden Construction, Inc.

1. c. 4: We have been obliged to observe and process a distressing procession of nearly identical incidents involving a crane load contract with overhead electrical wires.

Since that time we observe a continuation of incidents involving the same basic facts. See Secretary of Labor v. Eller Brothers, Inc. Secretary of Labor v. Frohlick Crane Service,

The standard allegedly violated pertaining to cranes and dericks is 29 CFR 1518.550(a)(15)(i). In abbreviated form this standard provides that equipment or machine shall be operated only if a minimum clearance between the lines and any part of the crane or load is ten feet. The evidence in this case clearly establishes Holsom violated the standard pertaining to the operation of cranes and derricks and thereby violated the Act in failing to provide a safe place to work for its employees. The general superintendent of Holsom directed Darryl Shadrick (who died of electrocution, Tr. 42) to pick up a blind flange (Tr. 36, 37); he was directed to put the blind flanges near the work they were doing (Tr. 34). The method of procedure at the jobsite was to move the crane to a point some 20 or 30 feet from the power line and then let out the cable; the cable would then be taken under the power lines and hooked to the blind flange with a shackle; the crane operator could then swing the boom away to remove the flanges (Tr. 51-53). Some of the flanges had already been moved in this fashion with the assistance of the crane (Tr. 51). While the crane operator did not see the equipment strike the power line (Tr. 16) he thought something was amiss when he saw both hands of Shadrick go on the choker cable (Tr. 56) and he saw "fire flying" (Tr. 57). There was no other source of electrical energy available (except the power lines) and the deceased was standing directly on the metal blind flange (Tr. 57, 58). The only way the deceased could have received a charge of electricity is if the boom came in contact with the power lines (Tr. 80). The crane operator "felt" that the boom came in contact with the power lines (Tr. 58). The evidence is persuasive that Shadrick, a Holsom employee, died as the result of the crane boom coming into contact with the power line. If the crane had maintained the minimum clearance of 10 feet as required by 29 CFR 1926.550(a)(15)(i) this incident would not have occurred.

Holsom urges it did not violate the standard because the crane was at all times situated some 25 to 30 feet from the power lines (Tr. 66, 72, 74). This position requires an analysis of the standard. 29 CFR 1926.550(a)(15)(i) states:

(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 (emphasis added).

This Judge's view is that any part of the crane would include the boom and it would further include any cable from the crane. It seems illogical to consider that a cable used in an effort to pull out materials from virtually under a power line would not be considered a part of the crane. This point is ruled against Holsom.

Holsom's evidence claimed that the operation was legal in every respect (Tr. 55). Under its theory of unloading they would attach a sling to the flanges, swing the boom to the left to take up the slack, then raise the hoist line and swing the boom to where it could be unhooked. This theory of non liability is erroneous as it ignores the standard. The standard requires that minimum clearance between the lines ". . . shall be 10 feet." In the instant case the flanges were located five feet from an imaginary line drawn on the ground under the power lines (Tr. 66, 72, 74), or to put it another way the metal flanges were 5 feet from where the power line runs overhead (Tr. 85). Under Holsom's theory the 10 foot minimum clearance should apparently be calculated as that area encompassed by and measured on a 10 foot radii from the power lines. (See Judge's Design 1 attached to this decision). The better view is that minimum clearance should include that area measured by drawing a line laterally 10 feet from the power line then intersecting the lateral line with a line drawn at right angles thereto and perpendicular with the ground. The line perpendicular to the ground should extend upward beyond the power line (See Judge's Design 2, attached to this decision).

If the physical layout of a worksite presents a hardship to an employer he can avoid the standard by deenergizing the line and visibly grounding it or he can use insulating barriers as provided by 29 CFR 1926.550(a)(15). A stated exception is when the cranes are "in transit" in the terms of 29 CFR 1926.550(15)(iii).

Holsom urges that it gave strict instructions to its employees to stay 15 feet from the power lines (Resp. Exhibit 1, 2, 3) and that these instructions were both written and oral (Tr. 2-3). Further the testimony indicates that the deceased employee had been instructed in the dangers relating to power lines (Tr. 51). The foregoing points are well established in the evidence. However, the Act places a heavier responsibility on the employer than it does on the employee. The Senate Committee on Labor and Public Welfare is reporting favorably on the bill stated that "Final responsibility for compliance with the requirements of this Act remains with the employer (S. Rept. No. 19-1282, 91st Cong., 2nd Sess., page 11, 1970). An employer cannot rely on merely informing an employee of a regulation and hazard involved. He is obliged to furnish a safe workplace for the employee. It is of little value to warn an employce and then direct him to undertake activity (Tr. 31) that constitutes a violation of the Act.

The unadjusted penalty as to Holsom was $1000. With credits for good faith (10%), size (10%), and history (20%). The final proposed penalty was $600 (Tr. 153-156). After a Notice of Contest is served the authority to assess civil penalties resides exclusively with the Commission under the Act. The Commission, under Section 17(j) of the Act, is expressly required to find and give due consideration to the size of employer's business, the gravity of the violation, the good faith of the employer and the history of previous violation. Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot be given equal weight. The principal factor to be considered is the gravity of the offense. In Secretary of Labor v. National Realty and Construction Company, Inc., The criteria (which is not intended to be exclusive of other elements) are as stated in National Realty (cited, supra ) wherein it is stated as follows:

1. c. 6. In determining the gravity of a violation, several elements must be considered: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury.

In this case three employees of Holsom were exposed to the risk, namely, the deceased; employee Paul Beer (Tr. 34) located 5 feet from the power line (Tr. 34). The supervisor was also present and his back was turned to Shadrick (Tr. 34). The testimony does not reflect the duration of the exposure in length of time, but some of the flanges had been previously moved by Holsom employee Beer (Tr. 51), a foreman for Holsom (Tr. 49). The inference that there was some duration in point of time to this danger is clear. No precaution was taken against injury and the move was made at the direction of Holsom's Superintendant (Tr. 34). Further, this Judge considers the probability of occurrence of an injury to be exceedingly high. The boom was 40 to 45 feet (Tr. 37, 76, 85), it was operating at a 45 degrees angle (Tr. 37); further the crane operator was unable to see the power line and watch activity on his right (Tr. 53); the view of the operator is obscured by the boom (Tr. 86) and for a person sitting in the cab it is difficult to see power lines (Tr. 87). Based on the rationale of National Realty, (cited supra ), the proposed penalty of $600 is inadequate and should be vacated. A penalty of $900 should be assessed against Holsom for this violation.

The facts indicate that the Citation and proposed penalty as to Winslow should be vacated. Winslow's safety instructions were specific. Winslow has had crane safety orders in existence for over 5 years (Tr. 20). Employees had specific directions not to operate within 15 feet of overhead wires (Tr. 22-23). The time card of each employee stated; "DO NOT" work within 15 feet of any power line (Tr. 32, 49 Resp. Ex. 1, 2, 3). When the equipment was rented to Holsom Winslow furnished an operator and the oiler (Tr. 26). These were the only employees of Winslow on the jobsite (Tr. 27) and the oiler was to serve as the signal man (Tr. 30). Winslow fully complied with 29 CFR 1926.550(a)(15)(iv) by furnishing a person to observe clearances and give timely warning. In point of fact Holsom's employee, Shadrick, was giving the signals but he was familiar with such signals (Tr. 35), had done it before (Tr. 43-44) and he knew how to direct a crane (Tr. 54). Under these circumstances it does not seem necessary that the flagman furnished by Winslow should also be signalling the crane. Winslow could have done little to prevent this violation except possibly furnish an additional supervisory person to further oversee the activities of the crane operator and oiler. This additional supervisory effort is not required by the Act.

The Complainant alleged in an other than serious violation against Holsom [as set forth with particularity in paragraph II hereof] in that employees in an excavation were exposed to danger from moving ground that was not guarded by a shoring system, sloping of the ground or some other equivalent means. The standard allegedly violated as well as the Citation both contain the condition that the walls and faces of all excavations shall be guarded when "employees are exposed to danger from moving ground." Complainant's exhibit 1, 2 and 3, (marked government exhibits) all show the nature of the excavation. It was 8 feet deep and Holsom was pushing a pipe down the ramp into the excavation with a 16 foot wide bulldozer. It was 40 feet long to accept a 40 foot length of pipe (Tr. 142) and at the bottom it was 16 feet wide and the top was in excess of 20 feet. One end of the excavation was "ramped out" (Tr. 130). Respondent's General Manager was familiar with the character of the soil as he had built the originial highway under which the pipe was being passed (Tr. 133). The excavation had stayed in this condition for three months and had not moved (Tr. 138). He testified that the soil character was shale (Tr. 131-133). In the judgment of the Compliance Officer the soil was clay but he had only made one visit to the location (Tr. 137). This Judge finds that the Complainant has not carried his burden of proof as required by Commission Rule 2200.73. The knowledge of Respondent's General Manager, having built the original highway, is more persuasive then the evidence of Complainant, further there is no evidence of record that there was any exposure whatsoever to danger from moving ground. As this Judge interprets 29 CFR 1518.651(c) there must be such evidence before a violation of this particular standard can be established. It accordingly follows that the Citation pertaining thereto and the proposed penalty of $60 should be vacated.

At further violation alleged against Holsom, as set forth with particularity in paragraph III hereof, alleges that a ladder was used for egress and ingress in and out of the excavation which did not extend 36 inches above the land or ground surface. As to this Citation the evidence is uncontradicted that the ladders were used to gain access to the top of the pipe (Tr. 153) for welding, wrapping and protecting the pipe (Tr. 144). No ladders were provided for ingress and egress because of the ramp (Tr. 146). The ladders in question were not used for egress and ingress in and out of the excavation but were used for servicing the pipe and for that purpose they were of proper dimensions. It is this Judge's view that ladders referred to in 29 CFR 1518.651(y) referred to those situations where ladders are used for the purpose of egress and ingress and not otherwise. They were not being used for that purpose then Holsom does not fall within purview of the standard and it follows that the Citation should be vacated and the proposed penalty of $30 thereon should be vacated.

With respect to the posting of the informational poster and the maintaining of a log for occupational injuries and illness [as set forth in paragraphs IV and V hereof] the Complainant has conceded that there was no violation (Paragraph 8, Complainant's proposed conclusions of law). The Citation and proposed penalty should be vacated.

Winslow is charged with failure to inspect its crane so as to detect deficiencies therein and to make sure the crane was in safe operating condition, allegedly in violation of 29 CFR 1518.550(a)(5) and 1518.550(b)(2). [The Citation and standard are set forth with particularity in paragraph VII hereof.] From the evidence in this case it is apparent that a brace was missing on Winslow's boom. (Tr. 110). The first communication Winslow received was from the State of Colorado (Tr. 110). Respondent's inspection disclosed that the missing piece was a small six inch angle piece on the top of the boom (Tr. 110, 111); however, the Compliance Officer examined the boom and indicated that the missing piece was mid-way of the boom and the diagonal strip about 30 inches in length (Tr. 115). In his judgment this missing piece would effect the safety of the boom in not allowing it to work at full rate of capacity (Tr. 116). 29 CFR 1518.550(b)(5) pertaining to cranes and derricks provides in effect that any deficiency in a crane shall be repaired, or defective parts replaced before continued use. The evidence shows a violation whether it be a six inch angle piece or a 30 inch piece that should have been corrected before continued use. The Citation for this violation should be affirmed and the proposed penalty is likewise proper and it should be affirmed.

A further violation alleged against Winslow was that there was not an accessible fire extinguisher available at the operators station or cab of the crane. [The Citation and standard are set forth with particularity in paragraph VIII hereof.] In the opinion of Winslow witnesses they complied with the extinguisher requirements pertaining to fueling (Tr. 122-123), but they admitted that at the time of the inspection there was no fire extinguisher mounted or furnished with the crane (Tr. 126) nor any with the drivers cab (Tr. 127). It is Winslow's position that they were aware of this regulation and fully complied with the literal meaning and reading thereof. Their view is that the subparagraph (i) of the regulation under paragraph 14 requires that the fire extinguishers be "accessible" to any machine being fueled.

We do not agree with the construction placed on this section by Respondent, 29 CFR 1518.550(14) relates to the fuel tank filler pipe, this in no way is dependent upon subparagraph (i) and accordingly each section should be given its full import. The Citation should be affirmed and the proposal to assess no monetary penalty is proper and should be affirmed.

FINDINGS OF FACT

1. Respondents Holsom Concrete Products Company, Inc. and Winslow Crane Service Company, Inc. are incorporated under the laws of the State of Colorado. The respective business operations of Respondents effect interstate commerce. The cranes used by Respondents were manufactured in other states and come out of the interstate commerce system (Stipulation b., Tr. 6).

Re: Holsom Concrete Products Company, Inc., Case Number 831.

2. An employee of this Respondent was directed to pickup a metal blind flange by a supervisory person (Tr. 31, 34, 36).

3. The method of removal was to extend a crane cable under power lines, attach the cable to the flange with a shackle, and swing the crane boom away from the power lines (Tr. 51, 53).

4. The flanges were located within 5 feet of being directly under an energized power line (Tr. 66, 72, 74).

5. The power line was carrying 6,620 volts (Tr. 103).

6. In the process of moving the crane line into position the crane came in contact with the power line (Tr. 57-58, 80, 103, 106).

7. Respondent (Holsom's) employee who was signalling the crane operator was electrocuted in the described operation (Tr. 29, 30, 34).

8. Three employees of Respondent were exposed to the risk (Tr. 34) other flanges had been removed in the manner described in paragraph 3; no precaution was taken against injury; the probability of injury was exceedingly high (Tr. 31, 34, 37, 53, 76, 85, 86, 87).

9. Respondent's excavation was 40 feet long, 8 feet deep, 16 feet wide at the bottom and in excess of 20 feet wide at the top (Tr. 142). One end was ramped out (Tr. 130, Compl. Ex 1, 2, 3).

10. The soil character of the ground excavation was shale; it has not moved since excavated (Tr. 131-133, 138).

11. The ladder in the excavation of Respondent described in paragraph 9 was not used for egress and ingress, but was used to gain access to the top of a pipe (Tr. 153). No ladders were provided for ingress and egress because of the ramp area (Tr. 146).

12. Complainant concedes that there was no violation of 29 CFR 1903.2 and 29 CFR 1904.2 (Complainant's proposed conclusions of law, para. 8).

Re: Winslow Crane Service Company, Inc., Case Number 832.

13. This Respondent is in the crane rental business (Tr. 29-30) and furnished a crane with an operator and oiler-signalman to Respondent Holsom Concrete Products Company, Inc.

14. The crane signalman was not directing the crane at the time of the fatality but the crane was being directed by an experienced signalman (Tr. 87, 82).

15. Respondent had given specific written and oral instructions by means of posters, arrows, warning notations and time card directions to its employees, not to operate a crane within 15 feet of any overhead power lines (Tr. 13-16, 18; Resp. Ex. 1, 2, 3).

16. There was a missing piece midway on Respondent's crane boom which was a diagonal strip about 30 inches in length (Tr. 115).

17. There was no fire extinguisher mounted or furnished with Respondent's operator stations nor in the driver's cab (Tr. 126, 127).

CONCLUSIONS OF LAW

1. Respondents are, and were at all times relevent to the issues herein, engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970.

2. Respondents are and were at all times herein mentioned, employers within the meaning of Section 3(5) of the Act and subject to its provisions under Section 4(a) and 5(a) of the Act and the standards promulgated under Section 6.

Re: Holsom Concrete Products Company, Inc.

3. Findings of fact number 2, 5, and 6 constitute a violation of 29 CFR 1518.550(a)(15).

4. Findings of fact number 2, 3, 4, and 5 constitute a violation of 29 CFR 1518.550(a)(15) in that the minimum clearance of crane to power line was less than 10 feet.

5. In view of the violations found in paragraphs 3 and 4 the Citation for serious violation against Holsom Concrete Products, Inc. should be affirmed.

6. Finding of fact number 8 constitutes a situation of severe gravity and the proposed penalty of $600 is inadequate and should be vacated; in lieu thereof a civil penalty of $900 should be assessed.

7. Findings of fact number 9 and 10 constitute a finding that Respondent did not violate 29 CFR 1926.651 and Citation number 1, item 1 [pertaining to employees in excavation, as set forth in paragraph II hereof] should be vacated.

8. The proposed civil penalty of $60 for the violation alleged in the preceding paragraph should be vacated.

9. Finding of fact number 11 constitute a finding that Respondent was not within the purview of 29 CFR 1926.651 and Citation number 1, item 2 [pertaining to ladders as set forth in paragraph II hereof] should be vacated.

10. The proposed civil penalty of $30 for the violation alleged in the preceding paragraph should be vacated.

11. Finding of fact number 12 constitute an admission and Citation number 1, item 3 and item 4 [pertaining to posting notice and occupational log as provided in paragraphs IV and V] should be vacated.

Re: Winslow Crane Service Company, Inc.

12. Finding of fact number 13, 14 and 15 constitute compliance with Act and Respondent furnished a crane operator and oiler signalman in compliance with 29 CFR 1926.550(15)(iv), accordingly Citation number 1 for serious violation should be vacated.

13. The proposed civil penalty of $600 for serious violation number 1 against Respondent should be vacated.

14. Finding of fact number 16 constitutes a violation of 29 CFR 1926.550(a)(5) [pertaining to deficiencies in crane as set forth in paragraph VII] and the Citation should be affirmed.

15. The proposed civil penalty of $75 for the violation found in the preceding paragraph is proper and should be affirmed.

16. Finding of fact number 17 constitute a violation of 29 CFR 1926.550(14)(i) [pertaining to furnishing fire extinguishers as set forth in paragraph VIII] and the Citation should be affirmed.

17. The proposed non monetary civil penalty for the violation found in the preceding paragraph is proper and should be affirmed.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED:

1. Citation number 1 for serious violation against Holsom Concrete Products, Inc. (29 CFR 1926.550(a)(15)(i) [as set forth in paragraph I] is affirmed.

2. The proposed civil penalty of $600 for the violation found in the preceding paragraph is vacated and in lieu thereof a civil penalty of $900 is assessed.

3. Citation number 1, item 1 for an other than serious violation against Holsom Concrete Products, Inc. [set forth in paragraph II hereof] is vacated.

4. The proposed civil penalty in the amount of $60 for the alleged violation in the preceding paragraph is vacated.

5. Citation number 1, item 2 for other than serious violation against Holsom Concrete Products, Inc. [as set forth in paragraph III hereof] is vacated.

6. The proposed civil penalty in the amount of $30 for the violation alleged in the preceding paragraph is vacated.

7. Citation number 1, item 3 for other than serious violation against Holsom Concrete Products, Inc. [as set forth in paragraph IV hereof] is vacated.

8. The proposed civil penalty in the amount of $50 for the violation alleged in the preceding paragraph is vacated.

9. Citation number 1, item 4 for an other than serious violation against Holsom Concrete Products, Inc. [as set forth in paragraph V hereof] is vacated.

10. The proposed civil penalty of $100 for the violation alleged in the preceding paragraph is vacated.

11. Citation number 1 for serious violation against Winslow Crane Service Company, Inc. [as set forth in paragraph VI hereof] is vacated.

12. The proposed civil penalty in the amount of $600 for the violation alleged in the preceding paragraph is vacated.

13. Citation number 1, item 1 for an other than serious violation against Winslow Crane Service Company, Inc. [as set forth in paragraph VII] is affirmed.

14. The proposed civil penalty of $75 for the violation found in the preceding paragraph is affirmed.

15. Citation number 1, item 2 for an other than serious violation against Winslow Crane Service Company, Inc. [as set forth in paragraph VIII] is affirmed.

16. The proposed non monetary penalty for the violation found in the preceding paragraph is affirmed.

[SEE ILLUSTRATION IN ORIGINAL]