GEORGIA ELECTRIC COMPANY
OSHRC Docket No. 9339
Occupational Safety and Health Review Commission
March 10, 1977
[*1]
Before BARNAKO, Chairman; CLEARY and MORAN, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Norman Winston, Assoc. Regional Sol., USDOL
G. Paris Sykes, Jr., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
The decision of Administrative Law Judge James D. Burroughs, dated March 20, 1975, is before us pursuant to Commissioner Moran's Direction for Review granting respondent employer's petition for discretionary review. In its petition and accompanying brief, respondent argues that the Judge erred in affirming a willful and serious violation of 29 CFR § 1926.550(a)(15), and a serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. Respondent also argues that the Judge erred in affirming the proposed penalties of $6,500.00 and $650.00 respectively.
The Secretary has filed with us a brief statement expressing an intention to file no brief with us, but instead relying on the Judge's decision and the Secretary's brief filed before the Judge. After careful review of the record, we adopt Judge Burroughs' well-reasoned decision.
Facts
This matter arose as a result [*2] of a job-related accident on July 10, 1974, that caused the death of one of respondent's employees. The decedent was a member of one of respondent's work crews that were installing light poles along U.S. Highway 82 in Tuscoloosa, Alabama.
On the morning of the fatal accident, D. R. Carroll, the regular boom truck operator for one of the pole crews did not report for work. Lamar Carroll, the job foreman and D. R. Carroll's son, designated Harold Lee as the replacement operator for the day. Before Lee's arrival, the foreman instructed other members of the crew to begin erecting poles at the far end of the project and work backward towards the project headquarters. He further instructed them to check the first pole across the river and erect it if they had sufficient clearance from adjacent live wires.
The foreman's interest in this first pole appears to be due partially to the fact that D. R. Carroll had previously foregone erection of that pole because he felt that it was too close to overhead live wires. Additionally, on the same morning, the assistant project manager and the job superintendent warned the foreman not to allow the pole crew to operate too close to live wires. [*3] They did not, however, mention specific distances. The foreman, in turn, did not discuss minimum safe distances with the pole crew.
Lee was a temporary summer employee with approximately 50 days service at the time of the accident. He had never been in charge of a pole crew. He was an inexperienced operator, having erected only six to 12 poles without supervision and 24 others with help.
Violation of 29 CFR § 1926.550(a)(15) n1
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n1 29 CFR § 1926.550 Cranes and derricks.
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(2) General requirements
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(15) Except where electrical distribution and transmission lines have been de-energized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the 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 50kv or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet.
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Upon reaching the pole referred to by the foreman, the crew proceeded to erect it. The ground separation between the pole and the lines was only 4 1/2 feet and both were about 50 feet high. The lines were energized to about 12,000 volts measured across any two of its three phases, and about 7,200 volts from one phase to the ground. The lines were not grounded, and no insulating barriers were used. At no time were efforts taken to de-energize the lines before erecting the pole.
Respondent argues that it cannot be held in willful or serious violation of the Act because it lacked knowledge of the incident. It states that the crew's action was contrary to company policy, and specific instructions to the crew. Respondent's argument is baseless. Judge Burroughs correctly determined that the foreman had specifically instructed the crew to check the pole and erect it if they felt they could do it safely.
Additionally, the foreman actually observed the crew erecting the pole but did not intervene. Respondent's reply to this latter evidence is unpersuasive:
From this location [approximately 100 feet from the crew] it was impossible to determine how much clearance there was [*5] between the pole and the power transmission lines (Tr. 172-173). It is also clear that [Lamar] Carroll didn't know whether the pole was actually too close, but that he only knew that it might be too close (Tr. 173) (emphasis supplied).
Respondent's brief at 27.
This demonstrates an indifference to the crew's safety. Despite the fact that the foreman was aware that the regular, highly experienced boom operator had previously determined that the task was unsafe, the foreman did not intervene. The inexperienced crew was allowed to proceed with a highly dangerous task that ended in the death of a crew member.
The foreman's actual knowledge of the incident and his careless disregard of the crew's safety are properly imputed to his employer. Ocean Electric Corp., BNA 3 OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975) petition for review docketed, No. 76-1060 (4th Cir., January 16, 1976).
The administrative law judge affirmed the willful violation on the ground that respondent had consciously chosen to ignore the Act and had exhibited a disregard for the safety of the pole crew. Despite the extensive size of the jobsite, consisting of approximately [*6] 5 1/2 miles of light pole erection with a contract price of approximately $550,000, and the hazardous nature of the work, neither the assistant project manager nor the job superintendent nor the foreman was aware of OSHA requirements as to minimum distances equipment must be operated from energized lines. As a result, no information was disseminated to employees with respect to the minimum clearance between energized transmission lines and the boom. At best, the employees were only cautioned to use common sense.
The employer, however, had extensive opportunity to become aware of the standard. On April 23, 1974, respondent was issued a citation for a serious violation of 29 CFR § 1926.400(c)(1) at another jobsite. That inspection had been precipitated by the electrocution of another employee. The compliance officer left material concerning the Act with a foreman. The information included a copy of Title 29, Code of Federal Regulations, Part 1926.
Respondent's contract with the State of Alabama required that it comply with all federal laws governing safety. At the preconstruction conference, officials of the Alabama Highway Department asked respondent's representative if he [*7] was familiar with OSHA, and he replied affirmatively. At this meeting, respondent was advised to obtain a booklet entitled "An Informational Guide On Occupational Safety On Highway Construction Projects." This booklet contained the pertinent information on 29 CFR § 1926.550.
Respondent argues that the evidence does not rise to the level of a "flaunting" or flouting of the Act that the Court required in Frank Irey, Jr., Inc. v. O.S.H.R.C. and Brennan, 519 F.2d 1200 (3d Cir. 1974), cert. granted 424 U.S. 964 (1976) (No. 75-748), to sustain a willful violation. Respondent's reliance upon Frank Irey is unpersuasive. What is controlling here is the Commission precedent represented by C.N. Flagg & Co., Inc., BNA 2 OSHC 1195, 1974-75 CCH OSHD para. 18,686 (No. 1734, 1974), petition for review denied No. 74-2362 (2d Cir., Jan. 12, 1976) holding that a violation is willful when it is intentional, knowing, or voluntary, as distinguished from accidental conduct; and may be characterized as conduct marked by a careless disregard. Here, in concluding that the violation was willful, Judge Burroughs properly considered the evidence of respondent's indifference to employee [*8] safety and its pattern of blatantly ignoring the requirements of the Act.
The violation was also "serious" within the meaning of section 17(k) of the Act. The location of live transmission lines in proximity to a light pole being erected by a crane-like device plainly presents a substantial probability that electrocution could result in the event of an accident. Additionally, the foreman could have conclusively established the existence of the violation by simply walking approximately 100 feet from his vehicle.
Violation of section 5(a)(1)
As the pole was being lifted onto its foundation, the section extending outward from the vertical shaft accidently rotated and touched the overhead live transmission lines. Lee immediately pushed the boom's loadline control lever upward to lift the pole clear of the wires. The loadline's control lever was reversed, however, so that Lee's action lowered, instead of raised, the pole. Respondent was issued a citation alleging a serious violation of section 5(a)(1) of the Act for the reversed loadline control.
In order to establish a violation of section 5(a)(1), the Secretary must prove: (1) that the employer failed to render its workplace [*9] free of a hazard; (2) that the hazard was "recognized," and (3) caused or was likely to cause death or serious physical harm. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973).
Initially, respondent offers a challenge of vagueness to section 5(a)(1). The Commission is not empowered to review the constitutionality of the Act. Buckeye Industries, Inc., BNA 3 OSHC 1837, 1840, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975) petition for review docketed, No. 76-1467 (5th Cir., February 19, 1976). It is enough to note that the issue has been raised and is therefore preserved for judicial review. See Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976). See generally Todd v. S.E.C., 137 F.2d 475, 478 (6th Cir. 1943).
Respondent alleges a failure of proof on all three indicia of a 5(a)(1) violation. Respondent's arguments are flawed, however, because it has misconstrued the gravamen of the violation as being one of mislabeling of the directions of the loadline. The violation was actually that the loadline lever was defective, n2 in the sense that it did not perform in the manner reasonably expected [*10] in the light of its nature and intended function.
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n2 The citation read:
The Employer failed to furnish his employees working within 10 feet of high voltage power lines employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm by furnishing a hoisting truck (No. 410) with a defective hydraulic lifting lever, in that the "loadline lever" when placed in the "raise" position as placarded on the truck hydraulic panel the load would lower and when the "loadline lever" was placed in the "lower" position, the load would raise, thus exposing employees to the hazard of electric shock which resulted in the electrocution of one employee.
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The loadline lever was labeled to indicate the normal method of operation, i.e., pushing up to raise the loadline and pulling down to lower it. Thus, the directions were correct in that they illustrated the normal and intended method of operation. The defect was that the loadline did not operate [*11] according to specifications.
The hazardous nature of the defect is illustrated by the facts of the case. Lee knew how the loadline actually operated and managed to compensate for the defect by simply reversing the intended method of operation. In a moment of stress, however, Lee instinctively operated the lever as it should operate, i.e., up to go up.
The administrative law judge found on the basis of conflicting testimony that none of respondent's designated supervisors was aware of the defect. The record indicates, however, that D. R. Carroll, the regular operator, and Harold Lee were aware of the defect. The administrative law judge affirmed the violation by finding D. R. Carroll to be a supervisor from whom he imputed knowledge of the defect to respondent. Respondent argues that the Judge erred in imputing the actual knowledge of the defect to it as D. R. Carroll was not a designated supervisor.
The Judge relied in part on the following testimony of Mr. Hugh Bronson, job superintendent, as a basis for finding that D. R. Carroll was a supervisor.
Q. You mentioned that Mr. D. R. Carroll, the fellow that was in charge of the crew when his son, the foreman was away, was [*12] not that correct?
A. No, sir. He was in charge of the pole setting crew at all times, D. R. was, but his son, Lamar Carroll, was over him, sir.
Q. Then D. R. Carroll, was he -- he wasn't a foreman, you didn't call him a foreman, did you?
A. Sort of a working foreman operating foreman, is what he was, yes, sir. He wasn't written up as a foreman.
(Tr. 145)
In addition, the foreman testified that D. R. Carroll was in charge of the pole crew. Lamar Carroll had other crews to supervise, and spent less than a half-hour a day with the pole crew. The crew was composed of five men; one to operate the boom, three to guide the light pole into the foundation and a flag man. Based on the foregoing testimony, the finding that D. R. Carroll was a supervisor was reasonable. It is uncontroverted that D. R. Carroll knew that the loadline lever was reversed. This knowledge was properly imputed to respondent because of the position D. R. Carroll held with the company. Ocean Electric Corp., 3 OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), petition for review docketed, No. 76-1060 (4th Cir., Jan. 16, 1976).
Respondent contends that the Judge should be prevented [*13] from imputing knowledge through D. R. Carroll because the issue of D. R. Carroll's supervisory status was not litigated. Respondent argues that had it known that D. R. Carroll's status would be an issue in the case, it would have addressed evidence at the hearing as to his lack of supervisory authority. Respondent contends that the record does not support a finding that D. R. Carroll was a supervisor, that it did not in fact cloak him with any indicia of supervisory authority, and that the Secretary at no point contended that he was a supervisor. Respondent relies on National Realty & Constr. Co., Inc. v. O.S.H.R.C., supra. Respondent's reliance on National Realty is misplaced. By determining that D. R. Carroll was a supervisor, the Judge did not unilaterally supply a missing element in the Secretary's case. Rather, the Judge found employer knowledge of the hazard, an element implicit in any allegation of a violation of section 5(a)(1). Additionally, we note the establishment of this element in the redirect examination of Mr. Bronson as to D. R. Carroll's responsibilities. n3 This is particularly true since D. R. Carroll was not a member of the crew on the day the [*14] accident occurred. Mr. Bronson was an adverse witness. His answers alone provide convincing evidence that D. R. Carroll was a supervisor. Respondent did not cross-examine on this issue of supervisory capacity.
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n3 See quoted excerpt at p. 9.
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A "recognized" hazard is a condition that is "known" to be hazardous. This element can be established by proving that the employer had actual knowledge that the condition is hazardous. Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, 494 F.2d 460, 463-64 (8th Cir. 1974). It may also be shown by proving that the condition is generally known to be hazardous in the industry. Thus, whether or not a hazard is "recognized" is a matter for objective determination. It does not depend on whether the particular employer appreciated the nature of the hazard. National Realty & Constr. Co., supra, 489 F.2d at 1265 n.32. Judge Burroughs properly determined that the reversed lever was a recognized hazard in the industry. The Accident Prevention Manual For Industrial Operations [*15] 6th edition (1969) published by the National Safety Council calls attention to machine lever controls. The reversed lever provides fertile ground for accidents to occur since momentary lapses of concentration and human error are part of every job.
The violation was "serious" within the meaning of section 17(k) of the Act. The poles were made of galvanized steel. If the poles were to come into contact with a live wire, electrocution could result. Additionally, respondent had actual knowledge of the hazard imputed to it from D. R. Carroll.
Respondent's final argument is that the Secretary offered no evidence as to what evaluations were made with respect to the required considerations of the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations. Since it is the Secretary's burden to prove on the record that the penalty is appropriate, respondent argues that this failure of proof prevents the assessment of penalties. We find no merit to this contention. Section 17(j) of the Act requires the Commission to give due consideration to the elements referred to by respondent. Judge Burroughs refers to sufficient [*16] evidence of record on all the required elements in reaching the determination that the penalties should be affirmed.
Accordingly, it is ORDERED that the willful and serious violation of 29 CFR § 1926.550(2)(15), the serious violation of section 5(a)(1) of the Act, and the penalties of $6,500.00 and $650.00, respectively, are affirmed.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The evidence is insufficient to establish that respondent failed to comply with 29 C.F.R. § 1926.550(a)(15) or that it violated 29 U.S.C. § 654(a)(1). Therefore, both citations should be vacated.
Section 1926.550(a)(15) prohibits, with certain exceptions which are not applicable in this case, the operation of equipment or machines within certain specified distances of power lines. n4 The standard does not say anything about instructing employees about these distances or state that an employee's ignorance of the standard constitutes a violation of the standard. It merely prohibits use of equipment or machines within the specified distances.
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n4 See footnote 1 of the lead opinion for the text of the pertinent portion of this standard.
[*17]
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As Judge Burroughs correctly found in his decision which is attached hereto as Appendix A, the respondent's assistant project manager had instructed the foreman on July 10, 1974, "not to attempt to set any poles that had been skipped." The pole involved in this case had previously been "skipped" by respondent's regular boom operator because the task appeared to be unsafe. The foreman disregarded the instructions he had been given by the assistant project manager and told the crew to see if the pole could be erected. If the foreman had followed the instructions given to him, there would have been no violation of 29 C.F.R. § 1926.550(a)(15).
In order to establish a violation of the Act, complainant must prove that the respondent had actual or constructive knowledge of the existence of the alleged violative condition. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975). In this case the requisite knowledge of the alleged violation can only be established if the foreman's knowledge is imputed to respondent. However, it is improper to utilize the imputation [*18] theory since the foreman willfully disobeyed the order of his superior and respondent had no reason to believe that he would do so. See Horne Plumbing and Heating Company v. OSAHRC, 528 F. 2d 564 (5th Cir. 1976); Secretary v. Engineers Construction, OSAHRC Docket No. 3551, September 29, 1975, and the cases cited therein; Secretary v. Fry's Tank Service, Inc., OSAHRC Docket No. 4447, August 13, 1976 (Moran, Commissioner), and the authorities cited therein.
Although the basic error of the majority is to affirm this citation at all, they also err in characterizing the violation as willful. When the foreman's willful disobedience is considered, it is clear that respondent did not willfully violate the Act even under the majority's own definition. n5 Moreover, the specific wrongful intent which is required to establish a willful violation cannot be imputed to a company unless an official at the policymaking level of the company directly participated in the wrongful act. To establish this participation, the evidence should at least show that the wrongful act was authorized through the action of such an official or done with his acquiescence therein. Secretary v. C.N. [*19] Flagg & Co., Inc., 11 OSAHRC 632 (1974) (dissenting opinion), and the cases cited therein. There is no such evidence in this case.
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n5 In my opinion, however, the more restrictive definition of willful violations given in Frank Irey, Jr., Inc. v. OSAHRC, 519 F.2d 1200, 1207 (3d Cir. 1974), is the preferable construction.
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As my colleagues correctly acknowledge, the complainant must establish that the alleged violative condition was a recognized hazard in order to prove a violation of 29 U.S.C. § 654(a)(1), the so-called general duty clause. In addition, however, complainant's evidence must also establish "the particular steps a cited employer should have taken to avoid citation, and . . . demonstrate the feasibility and likely utility of those measures." National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973). Complainant's case is deficient on all of these essential elements of proof.
My colleagues state that the gravamen of this violation is "that the loadline lever [*20] was defective," not "the mislabeling of the directions of the loadline." I agree. Therefore, the Judge's decision, which seems to hold respondent liable under both theories, is not adopted insofar as it finds a violation on the basis of mislabeling.
Messrs. Barnako and Cleary conclude that the loadline lever was defective "in the sense that it did not perform in the manner reasonably expected in light of its nature and intended function." They fail, however, to point to any evidence which shows that this condition constitutes a recognized hazard.
A condition constitutes a recognized hazard only when the evidence shows that it is commonly known by the public in general or in the cited employer's industry as a hazard of such a type. See National Realty and Construction Company, Inc. v. OSAHRC, supra, at 1265 n. 32. Although my colleagues and the Judge conclude that the alleged defect is a recognized hazard, they fail to cite any particular evidence which supports their conclusion. Messrs. Barnako and Cleary cite the Accident Prevention Manual for Industrial Operations (6th ed. 1969) but fail to specify any particular part thereof which states that loadline controls [*21] should function so that upward movement of the control lever will raise the loadline. Since this manual contains 1,654 pages, I would hesitate to say that it does not contain such a provision. If it did, however, one would think that the majority opinion would cite the specific provision. It is more likely that my colleagues, as did the Judge, are relying on the provision on page 539 of the manual which states that:
"Each controller and operating lever should be marked with the motion it controls and its direction." (Emphasis added.)
Obviously, this provision applies only to labeling which my colleagues have properly concluded is not the gravamen of the charge. Therefore, it is not relevant to the question of whether the loadline lever was defective.
The Judge concluded that the loadline lever did not work in the "normal manner." Similarly, the majority concludes that:
"The reversed lever provides fertile ground for accidents to occur since momentary lapses of concentration and human error are part of every job."
However, neither opinion specifies what evidence supports these conclusions. n6
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n6 My colleagues have apparently forgotten that it is the evidence of record and not their own theory which is controlling. National Realty and Construction Company, Inc. v. OSAHRC, supra at 1267.
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A photograph of the truck's control panel tends to indicate that the labels were placed thereon by the manufacturer. They were decals which apparently were not fabricated by respondent. Unfortunately, it is unknown as to whether the loadline operated in the manner in which it did because the manufacturer intended it to so operate or because of manufacturer error or subsequent repair or modification of the equipment. In the absence of evidence to the contrary, it is more logical to presume that the manufacturer intended it to work as it did. In this connection, the label for the pole puller control, which was located immediately adjacent to the loadline control, indicates that the pole puller was lowered by pushing up and raised by pulling down. Therefore, the manufacturer could have intended the loadline control to work in the same manner but mislabeled it. The marking of the pole puller [*23] also contradicts the conclusion of the Judge and my colleagues that the loadline lever did not function in the normal manner and supports the testimony of respondent's assistant project manager that it was not customary for all controls to operate in the direction that would seem to be consistent with instinct.
Since the majority opinion does not state what corrective action should have been taken by respondent to avoid the section 654(a)(1) citation, it seems apparent that they agree with the Judge's holding that the control should have been repaired so that it would operate the loadline in the opposite way from which it did. n7 For reasons given in the preceding paragraph, the evidence does not establish the feasibility of this measure. Furthermore, the "likely utility" of such a modification is not established by the evidence. The operator's erroneous use of the loadline lever was not because of the way in which it functioned. He knew how the lever worked and was accustomed to its manner of operation. In this regard, he testified that "I know better, but I wasn't thinking at the time." Obviously, a modification in the controls is not going to improve the thinking of respondent's [*24] boom truck operators. In fact, since the operators were accustomed to the manner of operation of the loadline lever, changing it to function in the opposite way can logically be expected to cause more safety problems than it will alleviate. This demonstrates the soundness of the rule which prohibits my colleagues from substituting their theories for evidence of record. n8
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n7 This conclusion is consistent with their statement of the gravamen of the alleged violation. An employer, however, is precluded by 29 C.F.R. § 1926.550(a)(16) from making such a modification without first obtaining the manufacturer's approval. Therefore, it appears that the respondent is being held liable for not making a modification which it may have been precluded from making under that standard because the manufacturer might not have approved of it.
n8 See footnote 6, supra.
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