BUTLER LIME AND CEMENT COMPANY

OSHRC Docket No. 855

Occupational Safety and Health Review Commission

December 12, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Russell M. Ware and Clifford C. Kasdorf, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A Butler Lime and Cement Company ("Butler") employee was electrocuted when the crane mounted on the truck he was operating struck overhead powerlines. After investigating the accident, the Occupational Safety and Health Administration cited Butler for committing a serious violation of the Act n1 by failing to comply with the standard at 29 C.F.R. 1910.180(j)(1)(i). n2 A $550 penalty was proposed. Butler contested the citation nd proposed penalty. Administrative Law Judge Robert P. Weil presided at the hearing and vacated the citation and proposed penalty on the ground that,

No evidence indicates that Butler knew of the position in which [the electrocuted employee Douglas] Kapperman had placed himself and no evidence indicates that it could have known with the exercise of reasonable diligence. The accident occurred not because Butler failed to give Kapperman adequate safety training, if indeed Butler so failed, but because Kapperman [*2] failed to use common sense and judgment. . . .

The Commission affirmed the judge's decision.

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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678.

n2 Section 1910.180(j)(1)(i) reads as follows:

(j) Operating near electric powerlines - (1) Clearances. Except where the 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 crane have been erected to prevent physical contact with the lines, cranes shall be operated proximate to, under, over, by, or near powerlines only in accordance with the following:

(i) For lines rated 50 kv. or below, minimum clearance between the the lines and any part of the crane or load shall be 10 feet.

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The United States Court of Appeals for the Seventh Circuit then vacated the Commission's decision. Brennan v. Butler Lime and Cement Company, 520 F.2d 1011 (7th Cir. 1975). The court specifically noted that an employer may be responsible for [*3] a violation created by the negligent act of an employee if the act could have been prevented by proper training or instructions. Id. at 1017. n3 Accordingly, the court remanded the case, directing the Commission to evaluate Butler's safety training program in order to decide if Butler had knowledge of the violative condition.

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n3 The Commission has since held that failure to provide proper training or instructions in such circumstances constitutes constructive knowledge under the Act. See, e.g., Southwestern Bell Telephone Company, 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979); Enfield's Tree Service, Inc., 77 OSAHRC 32/B2, 5 BNA OSHC 1142, 1977-78 CCH OSHD P 21,607 (No. 9118, 1977).

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The Commission twice remanded this case to the judge for additional findings. The judge ultimately affirmed the citation and assessed a penalty of $550. n4 Butler petitioned for review of the decision. The petition was granted and review directed under the authority conferred by section [*4] 12(j) of the Act. Although the judge has not made the type of findings of fact ordered by the Commission, another remand is unwarranted. This case is now seven years old. The Commission possesses the authority to make findings of fact independent of the administrative law judge. Accu-Namics, Inc. v. OSHRC, 515 F.2d 828,834-835 (5th Cir. 1975); C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978). For the reasons given below, we hold that Butler committed a serious violation as alleged. n5

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n4 At the outset of this case, the parties had stipulated that a penalty of $550 would be reasonable if the serious violation as alleged in the citation was affirmed by the judge. The judge's penalty assessment was based upon that stipulation.

n5 Both Chairman Cleary and Commissioner Barnako ordered that this case be reviewed by the Commission. Cormissioner Barnako's direction for review specifies a number of issues that pertain to the sufficiency of the judge's decision in light of the requirements of the Commission's remand order as well as the requirements for decision making under the Administrative Procedure Act, 5 U.S.C. 557(c). There is no need to address any of those issues, however, because the Commission does not rely on any portion of the judge's decision to which the specified issues were directed. Commissioner Cottine concludes that resolution of these issues is not necessary to a disposition of this case and that public policy considerations do not require deciding the issues in the context of this case.

[*5]

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Butler does not deny that its employee was exposed to a condition that was not in compliance with the standard. There is no dispute about how the accident occurred. The Seventh Circuit gave the following summary of the accident.

Butler is a Wisconsin corporation that sells and delivers brick, mortar, and other building materials to contractors in the Milwaukee area. To make these deliveries, Butler employs 24 drivers to operate its fleet of 24 vehicles, which includes two brick trucks. The brick trucks are flat-bed vehicles equipped with steel pedestals mounted with mobile crane booms for the loading and unloading of the pallets on which building materials are shipped. These booms can be swung in wide arcs and can be raised nearly vertical from their horizontal rest position. To unload, the driver of such a brick truck raises the boom to the desired angle and then through the motion of a "trolley," a device which moves inside the boom, he places the hauling cable over the center of the material to be lifted. Thus the crane boom enables one man to drive the load from the yard to the customer's [*6] premises and there unload it without assistance.

On March 15, 1972, Butler employee Douglas Kapperman was ordered to deliver a load of bagged cement and lime to Commercial Construction Company at a construction site in Milwaukee County. The site, as is usual in the county, contained overhead power wires. Because of grading, the wires in some areas of the site were lower than was typical. The vehicle Kapperman drove was the smaller of the two Butler brick trucks; it was 25 feet long and its crane measured 20 feet. Kapperman had driven Butler cement and dump trucks for 10 years but had operated this brick truck only since December 1971 [footnote omitted]. With his truck boom horizontal, Kapperman drove onto the site between two partly-completed apartment buildings, passed under a series of 4800-volt overhead electric lines which ran between the buildings, and stopped near a cement mixer operated by two Commercial Construction Company employees. Kapperman then turned his truck around and parked it directly under the overhead lines. This position placed the boom eight feet from the lines and required that the boom be raised over and above the wires before unloading could take [*7] place. It was Butler's policy that a driver should use his own judgment where to place the material delivered it the driver had been given no special instructions as to the delivery spot.

When Lewis, one of the Commercial Construction Company employees, asked Kapperman whether "he wasn't awful close to the wires," Kapperman just looked at him and continued to unlimber his boom. The two Commercial workers immediately went to the other side of one of the unfinished buildings because, "[i]f he touches those wires maybe we could get it, too." When the men returned ten minutes later, Kapperman was lying dead beside his truck. The crane boom either had touched the power lines or had come near them, with the result that the electricity had passed from the lines through the boom and thence had fatally injured Kapperman.

Brennan v. Butler Lime and Cement Company, supra, at 1012-1013.

Butler does not have a formal program for training brick truck drivers. Experienced drivers ordinarily are assigned, on an ad hoc basis, to train new employees and employees who have not operated a brick truck. The training period is not extensive: the experienced driver accompanies the inexperienced [*8] driver on his first assignment. Kapperman had driven cement and dump trucks for Butler when he qualified as a relief brick truck driver in 1968. Butler's assistant yard manager, James Mislang, trained Kapperman because no experienced driver was available. Mislang drove separately to the worksite when Kapperman made his first delivery in a brick truck, explained the operation of the crane while unloading some material from the truck, and observed Kapperman complete the unloading. He warned Kapperman about a variety of potential dangers, including tipping the truck, swinging the crane into the overhang of a house, and unloading near overhead powerlines. Kapperman was not cautioned to keep his crane at least ten feet from powerlines, the minimum clearance permitted by the standard. No additional safety training was provided for the next three years.

When Kapperman was approved as a full-time brick truck driver in December 1971, Butler's yard manager, Robert Tews, cautioned him about the dangers to which he might be exposed while operating the truck. Tews gave the following explanation of his comments.

I talked about he has got to make sure he wears his hard hat when he was lifting [*9] those pallets in case Handley didn't get the brick all in tight that it wouldn't hit him on the head. We talked about overhead wires, we talked about roofs, we talked about everything you can imagine -- just be careful with this piece of equipment, watch what you are doing. If there is any question, jump on the radio, call us, we will check.

Tews did not state whether he warned Kapperman to stay at least ten feet from overhead powerlines. Butler's safety coordinator, Ross Prange, testified that Tews was unlikely to have specified the ten-foot distance because Butler has a safety policy against specifying such distances. The meeting lasted fifteen minutes. This was the last time Tews discussed safety matters with Kapperman.

Kapperman did not receive additional warnings or instructions about overhead powerlines. The last group safety meeting for Butler's drivers was held in 1959 or 1960. Supervisory personnel attend bi-monthly meetings at which employee safety, among other topics, is discussed. Information obtained at these meetings, such as general rules and warnings about immediate problems, is expected to be conveyed to drivers during routine daily contacts. The primary [*10] source relied upon by Butler to convey this information is the dispatcher because he hands delivery orders to each driver at least once daily. The dispatcher who gave delivery orders to Kapperman did not give him any warnings or instructions about the need to keep a safe distance from overhead powerlines. It is not surprising that the dispatcher gave no warning about overhead powerlines. He did not know of the lines. This does not absolve Butler, however, because Prange and Tews testified that they assumed that lines were present at the site. In exercising reasonable diligence, an employer must take the steps necessary to ascertain the hazards peculiar to operations performed by its employees and must provide the requisite safety instructions to prevent exposure to those hazards. Southwestern Bell Telephone Company, 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979). See Springfield Steel Erectors, Co., 78 OSAHRC 7/A4, 6 BNA OSHC 1313, 1978 CCH OSHD P22,498 (No. 15388, 1978).

Butler emphasizes that Kapperman was an experienced employee who had made 40 to 45 deliveries to the site at which he was electrocuted. There is little significance [*11] to these facts because Kapperman received no warnings before making any delivery, including the first, and the number of uneventful deliveries does not indicate that Kapperman kept the crane on his truck at least ten feet from powerlines. More importantly, an employer may not ignore readily available opportunities to take simple precautionary measures that will protect an employee from exposure to life-threatening hazards simply because the employee is experienced. See Getty Oil Company, 530 F.2d 1143 (5th Cir. 1976).

An employer who fails to train his employees adequately cannot claim that he could not have known of his employees' preventable actions. Danco Construction Company v. OSAHRC, 586 F.2d 1243 (8th Cir. 1978). The need for comprehensive training is especially important if an employee must work without supervision. Baroid Division of NL Industries, Inc., 79 OSAHRC    , 7 BNA OSHC 1466, 1979 CCH OSHD P23,661 (No. 16096, 1979), appeal docketed, No. 79-1775 (10th Cir. Aug. 16, 1979). An employer must instruct employees who operate cranes in the vicinity of powerlines of the requirement in 1910.180(j)(1)(i) to keep the crane at least ten feet from [*12] the lines; warnings to be cautious of or nor to work near lines do not offer adequate assurance that employees appreciate the need for the ten foot requirement. n6 Enfield's Tree Service, Inc., supra. The training Kapperman received was, therefore, inadequate because he was not given specific instructions about the requirements of the standard even through Butler's supervisors assumed that overhead powerlines would be found on every site to which deliveries would be made. Thus, Butler had constructive knowledge of the violative condition to which Kapperman was exposed.

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n6 Item 16 of a 22 item safety poster that had been attached to a bulletin board near Butler's time clock for six months prior to the accident stated that crane booms should not be operated within ten feet of overhead powerlines. There is no evidence, however, that Kapperman was obligated to or did read the poster. Prange testified that he did not know whether the items on the poster were discussed with drivers, and a driver testified that the items were not discussed. Employers must assure that work rules are communicated to employees. See, e.g., Ames Crane & Rental Service, Inc. v. Dunlop, 532 F.2d 123 (8th Cir. 1976). Moreover, as mentioned above, Butler intentionally declined to adopt and communicate a rule directing employees to maintain a minimum clearance of ten feet. The mere presence of the poster is not an adequate substitute for a specific, effectively communicated work rule.

[*13]

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We conclude that Butler committed a serious violation of the Act by failing to comply with the standard at 29 C.F.R. 1910.180(j)(1)(i). n7 The parties have stipulated to the appropriateness of the $550 proposed penalty. Inasmuch as the penalty is not repugnant to the purposes of the Act and no employee representative has objected to it, will assess the penalty as proposed. See Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD 20,448 (No. 504, 1976).

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n7 In his concurring opinion in Baroid Division of NL Industries, Inc., supra, Commissioner Barnako held that when an employee works on worksites of other employers, his own employer is obligated to train the employee concerning safety measures for common hazards which are directly involved with his work and which the employer should expect to be encountered by his employee at the premises of another. In this case the possibility of a mobile crane boom coming too close to a powerline was a common hazard directly involved with the task of unloading brick trucks at construction sites. Moreover, officials of Butler knew that overhead powerlines normally were present at the jobsites to which its brick trucks made deliveries. Therefore, Commissioner Barnako concurs in finding that Butler had a duty to train its brick truck drivers, such as Kapperman, concerning the hazard such powerlines pose when a crane operates in their vicinity. Commissioner Barnako also agrees that Butler failed in its duty to adequately train its employees concerning overhead powerlines and therefore violated 29 C.F.R. 1910.180(j)(1)(i).

[*14]

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Accordingly, it is ORDERED that the citation be affirmed and that Butler Lime and Cement Company be assessed a penalty of $550.