UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-1393
H. B. ZACHRY COMPANY,
Respondent.

January 31, 1980

DECISION

BEFORE CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Judge James A. Cronin is before the Commission pursuant to a direction for review issued by former Commissioner Moran under section 12(j)[1] of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). At issue is an alleged serious violation of the Act for failure to comply with the standard at 29 C.F.R. § 1926.550(a)(15)(1)[2] which requires that equipment or machines operated in proximity to certain power lines maintain a 10 foot clearance from the power lines. Judge Cronin concluded that respondent violated the Act and assessed a penalty of $700.

On review, respondent raises the following issues:

1. Whether Judge Cronin erred in allowing the Secretary to amend his complaint to allege an ‘inspection and investigation’ rather than an ‘inspection’ and in admitting evidence of the events occurring on the day of the fatality;

2. Whether the cited standard applies to mobile cranes or cranes in transit with a load; and

3. Whether the judge erred in finding a violation of the standard because respondent maintained an adequate safety program and the accident resulted solely from the crane operator’s negligence, of which respondent had no knowledge.

On February 11, 1976, respondent’s crane operator, Kitchens, was told by his supervisor to move a load of pipe from a storage area to an excavation. Energized electrical lines were located between the storage area and the excavation. These lines were approximately 28 feet above the ground. Kitchens used a Grove mobile crane, or ‘cherry picker’, to move the pipe. The crane had a boom and jib, the total extension of which was 48 to 50 feet. Two employees, Tobias and Fraga, held the pipe during the move to stabilize it. During the moving operation, the jib touched the energized power lines, resulting in the death of Tobias and the hospitalization of Fraga.

The evidence indicates that Kitchens had previously driven the crane under the same power lines 10 to 12 times, although no load had been attached to the crane. Kitchens testified that it was possible for the loaded crane to travel under the power lines and not come within 10 feet of those lines. Respondent’s assistant safety director stated that when the boom was horizontal, it was 11 feet 3 inches from the ground and the jib was 5 feet from the ground. Kitchens stated that it would have been possible to carry the pipe while the boom was in a horizontal position.

Kitchens further testified that he had previously been told to avoid power lines, including the particular lines involved here, and was aware that the boom of the crane must be kept 10 feet from energized lines. However, he stated that he could not recall specific instructions concerning the power lines being given on the day of the accident and that the operation of the crane was left ‘more of less to my discretion’. Although a supervisor had been present when the load was attached to the crane, and a supervisor had at previous times directed the operation of the crane, no supervisor directed the movement of the crane on the day of the accident. In addition, at times a helper would give Kitchens hand signals to indicate that he was close to power lines, but this procedure was not followed on the day of the accident.

The complaint issued by the Secretary alleged that an inspection had been conducted on February 11 through 20, 1976. Respondent, in its response to the Secretary’s request for admissions, asserted that evidence regarding the events of February 11, the day of the fatal accident, was irrelevant because the Secretary did not begin his inspection until February 12. At the hearing, the Secretary sought to amend the complaint to allege that the compliance officer had conducted an ‘inspection and investigation’ on February 12. Respondent objected to the amendment, claiming prejudice. Respondent’s counsel asserted that an ‘investigation’ is only meant to determine whether criminal penalties should be sought against an employer for a willful violation of the Act, relying on provisions in the Secretary’s Field Operations Manual.

Upon questioning by Judge Cronin, respondent’s counsel admitted that respondent’s representatives were aware that the compliance officer was at the site to investigate the events of February 11, and were not surprised by the issuance of a citation alleging a violation of the Act. Judge Cronin granted the amendment and allowed evidence to be admitted relating to the events of February 11, subject to respondent’s continuing objection to the admissibility of that evidence. In his decision, Judge Cronin reaffirmed his ruling at the hearing that evidence of the events that occurred on February 11 was admissible.

In rejecting respondent’s contention that it was prejudiced by the amendment of the complaint to allege an ‘inspection and investigation’ rather than simply an ‘inspection’, the judge first noted that respondent had not been surprised by the issuance of a citation based on the events of February 11. He stated that respondent had fully cooperated in the investigation and found that the amendment had not hindered respondent in its ability to prepare its defense. Finally, the judge concluded that respondent’s argument that ‘investigations’ could not lead to the issuance of citations was without merit. Judge Cronin noted that adoption of respondent’s reasoning would ‘seriously undercut’ the enforcement scheme of the Act and that section 9(a) of the Act specifically provides for the issuance of citations following an ‘investigation’.[3]

We agree with the judge’s reasoning allowing the amendment and admitting the evidence concerning the fatality. The judge correctly concluded that respondent failed to demonstrate how it was prejudiced by the amendment of the complaint to allege an investigation as well as an inspection. Respondent’s argument concerning the effect of the Secretary’s Field Operations Manual was properly rejected. In EMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1710, 1977–78 OSHD para. 22,060 at p. 26,573 (No. 13155, 1977), we held that the Field Operations Manual in an internal manual containing only guidelines for the exercise of the Secretary’s enforcement responsibilities. We stated that the manual does ‘not have the force and effect of law, nor does it accord important procedural and substantive rights to individuals.’ Id. In the circumstances here, section 9(a) of the Act authorizing the issuance of a citation following an ‘inspection or investigation’ is controlling. The issuance of the involved citation based on the circumstances learned during the inspection and investigation was proper.

III

Before Judge Cronin, respondent contended that section 1926.550(a)(15)(i) does not apply to mobile cranes or mobile cranes in transit with a load. In rejecting respondent’s argument, the judge reasoned that section 1926.550(a)(15) applies to all cranes and crane operations, including the one at issue here, because the standard on its face applies generally to the operation of ‘equipment or machines.’ He noted that the standard’s objective is to avoid electrical shock by eliminating the possibility of machines and equipment coming into contact with energized wires. To exclude the mobile crane from coverage, stated the judge, ‘would create an anomaly and exclude from coverage a type of crane which is in constant use in the construction and other industries.’

The judge rejected respondent’s assertion that the rationale of Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976), applies and is controlling here. The judge stated that Diamond Roofing

stands for the proposition that whenever terms conveying distinct meanings are employed together in one section of a standard to describe conditions to be covered by the standard’s requirements, the inclusion of one such term and not the other in another place of the same subpart will be construed as an intent to exclude the omitted term.

In the standard involved in the present case, however, the judge found that the term ‘equipment or machines’ is a ‘general or inclusive term’ that encompasses the more specific term ‘mobile crane.’ Therefore, the judge concluded that the use of the term ‘equipment or machines’ does not convey a meaning distinct from ‘mobile cranes’ and that the applicability of the cited standard to all cranes is clear.

For similar reasons the judge rejected respondent’s argument that section 1926.550(a)(15)(iii) is the only standard applicable to mobile cranes in transit.[4] Respondent contended that since that standard specifically applies to equipment in transit with no load and with boom lowered, no standard applies to the circumstances here, i.e., a mobile crane in transit with a load. The judge again noted that section 1926.550(a)(15) on its face applies to the ‘operation of equipment or machines’ without qualification. He found that reading the cited standard to include coverage of mobile cranes in transit with loads is consistent with both the standard’s terms and its purpose.

On review, respondent raises the same arguments concerning the applicability of section 1926.550(a)(15)(i) to mobile cranes that it raised before the judge. We adopt the judge’s findings and for the reasons assigned by him conclude that the standard at 29 C.F.R. § 1926.550(a)(15)(i) applies to the operation being performed by respondent’s mobile crane at the time of the violation in issue. Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ¶ 22,737 (No. 14281, 1977).

The judge found respondent in violation of the Act. While the Judge found that the crane operator’s negligence was the primary cause of the violation, he also found that the failure of respondent’s supervisor to follow respondent’s rule requiring the assignment of a flagman to direct the crane operator under the energized lines contributed to the violation. The judge further reasoned that because respondent’s supervisor and the crane operator had knowledge of the work conditions necessitating compliance with the cited standard, i.e., that pipe was to be transported by crane under energized wires, their failure to maintain compliance with the standard was properly imputed to respondent.

On review respondent contends that the judge erred in holding it responsible for the violation. Respondent argues that it had done all that could reasonably be expected to prevent the violation and that it could not have known that the crane operator would fail to comply with the standard. Respondent further argues that the judge’s reliance on the failure to assign a flag person was improper. For the reasons that follow, we affirm the judge’s conclusion that respondent violated the Act for failure to comply with the standard at 29 C.F.R. § 1926.550(a)(15)(i).

In order to establish the affirmative defense of unpreventable employee misconduct, an employer must show that the action of its employee was a departure from a uniformly and effectively communicated and enforced work rule. Everglades Sugar Refinery, Inc., OSAHRC, 7 BNA OSHC 1410, 1979 OSHD para. 23,603 (No. 76–2643, 1979), petition for review filed, No. 79–2441, 5th Cir., June 18, 1979; Leo J. Martone & Associates, Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977–78 OSHD para. 21,718 (No. 11175, 1977); B-G Maintenance Management, 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976–77 OSHD para. 20,744 (No. 4713, 1976). The evidence establishes that respondent had a formal safety program that included holding safety meetings and distributing safety manuals and materials to its employees. As part of its safety program, respondent had a work rule requiring the crane operator to maintain a minimum distance of 10 feet from energized overhead wires as well as a rule requiring the assignment of a flag person to assist cranes moving over job sites. The mere establishment of work rules, however, is not sufficient to avoid responsibility for a violation. The rules must also be effectively communicated and enforced. Id. Without effective communication and enforcement of work rules, the protections sought by the standard and the work rule can not be achieved.

The record in the present case does not establish effective communication and enforcement of respondent’s work rules. Although respondent had a program of safety meetings and distribution of materials, the evidence concerning the actual implementation of this program is conflicting. Respondent’s safety director testified that there were weekly safety meetings. The crane operator’s supervisor, on the other hand, stated that these meetings were skipped every other week. In addition, the crane operator testified that even when he did not attend safety meetings he would sign a roster indicating that he had been in attendance. For example, although the safety director stated that a film on crane safety had been shown at a meeting on the day preceeding the accident, the crane operator could not recall seeing such a film. The supervisor stated that it was possible that this meeting had not been held. Furthermore, contrary to respondent’s assertion, the record supports the judge’s finding that respondent failed to observe its own rule requiring assignment of a flag person to assist cranes in moving over job sites. When asked whether a signal person assisted him in the pipe moving operation, the crane operator testified that the only employees involved were himself and the two employees steadying the pipe. Therefore, the judge properly considered respondent’s failure to abide by its own safety rule in determining its responsibility for the violation at issue. Cf. Springfield Steel Erectors, Inc., 78 OSAHRC 7/A4, 6 BNA OSHC 1313, 1977–78 OSHD para. 22,498 (No. 15388, 1978).[5] For these reasons, we hold that respondent did not establish that the failure to comply with the cited standard was contrary to a uniformly and effectively communicated and enforced work rule.

We affirm the judge’s conclusion that respondent is responsible for the violation. As to the appropriate penalty, we affirm the judge’s findings regarding respondent’s size, the grave nature of the hazard, the number of employees exposed to the hazard, the lack of a significant history of violations, and respondent’s good faith. Therefore, the penalty assessment in the amount of $700 is affirmed.

Accordingly, the Judge’s decision is affirmed.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: JAN 31, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-1393
H. B. ZACHRY COMPANY,
Respondent.

October 26, 1976

DECISION AND ORDER

Appearances:

For Complainant Ronald M. Gaswirth, Regional Solicitor

Arnold S. Battise, Esq.

Office of the Solicitor

U. S. Department of Labor

555 Griffin Square Building

Dallas, Texas 75202

For Respondent Robert W. Wachsmuth, Esquire

Johnson, Johnston, Sox & Wachsmuth

1708 Tower Life Building

San Antonio, Texas 78205

CRONIN, JUDGE, OSHRC:

This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act) involving an ‘inspection and investigation’ of a respondent worksite 9 miles north of Pawnee, Oklahoma, conducted February 12 through February 20, 1976.[6] A citation, alleging a ‘SERIOUS’ violation of 29 C.F.R. § 1926.550(a)(15)(i), and a notification proposing a penalty of $700.00, were issued to respondent by complainant on February 27, 1976.

The alleged violation of § 1926.550(a)(15)(i) was described in the citation as follows:

A minimum clearance of 10 feet was not maintained between the electrical distribution and transmission lines rated up to 50 KV and any part of the crane or load, where the electrical distribution and transmission lines were not deenergized nor visibly grounded at the point of work or insulating barriers, not a part of or an attachment to the equipment or machinery, were not erected or installed to prevent physical contact with the lines, which resulted in a hazard of electrical shock in the following locations: Grove Truck Crane, Model RT 605, serial number 20176 at pumping station construction site.

Condition existed on or about February 11, 1976.

Standard § 1926.550(a)(15) and § 1926.550(a)(15)(i) as promulgated by the Secretary of Labor provides:

(15) Except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with the following:

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

The hearing in this matter took place on July 20, 1976, and both parties filed post-hearing briefs.

Jurisdiction and Issues

The respondent corporation which maintains offices at San Antonio, Texas, is engaged in business as a general construction contractor and does not contest Commission jurisdiction.

The issues to be determined are:

1. Whether evidence relating to the fatal accident of February 11, 1976, was admissible?

2. Whether the cited standard applies to mobile cranes? And if so, does it apply to mobile cranes in transit with a load?

3. If a violation of the cited standard was committed on February 11, 1976, did respondent know, or could it have known with the exercise of reasonable diligence, of the presence of this violation?

Discussion

1. Evidence offered to prove a violation on February 11, 1976, was properly admitted.

2. Both the Citation and Complaint in this proceeding originally alleged that an ‘inspection’ of respondent’s worksite was conducted ‘on February 11–20, 1976.’ Subsequently, at the outset of the hearing, the Secretary moved to amend the complaint by substituting the phrase ‘inspection and investigation’ for ‘inspection’ (Tr. 5). Respondent strenuously objected to the amendment, claiming prejudice. Upon questioning by this Judge, respondent’s counsel conceded that respondent was aware that the compliance officer’s initial appearance at the worksite, on February 12, 1976, was for the purpose of investigating the fatality which occurred on February 11, 1976, and that respondent was not surprised when it received a citation alleging a violation of the Act due to a condition which existed ‘on or about February 11, 1976.’[7] Because no showing of prejudice to respondent’s ability to defend against the charges of the citation was made, the Secretary’s motion to amend was granted.

Nothing subsequently appearing of record persuades this Judge that his original ruling was in error. The evidence establishes that the compliance officer attempted without success to locate the worksite in question on the afternoon of February 11, 1976. The next day, February 12th, he conducted an actual on-site inspection and investigation during the morning and early afternoon. According to his testimony, he continued his investigation of the events of February 11th until completed on February 20, 1976 (Tr. 65–66).

Upon arriving at the worksite on February 12th, he informed respondent’s project superintendent and assistant safety director that he was there to make an investigation into the February 11th accident to determine its causes and whether a violation of any standard had been committed. Respondent’s superintendent provided the compliance officer with transportation to the accident site and with copies of employee statements prepared for respondent on February 11th (Tr. 66–67). While at the site on February 12th, the compliance officer took measurements and photographs relating to the accident and interviewed respondent’s foreman, Jonhinass Herman.

It is clear from the compliance officer’s testimony that respondent knew the purpose of his visit to the worksite. Respondent cooperated fully and even furnished substantial assistance to his investigative efforts. Also, there is no indication on this record that respondent was hindered in its ability to prepare its defense by the allegation of ‘inspection’ and the subsequent amendment to ‘inspection and investigation.’

Although imaginative, respondent’s additional arguments that ‘inspections’ under the Act can result only in citations based on observations of a compliance officer and that ‘investigations’ conducted under the Act cannot form the basis for the issuance of citations also lack merit, and are neither supported by the Act nor by Commission precedent. In this regard, it is sufficient to point out the obvious; adoption of respondent’s ‘observation’ theory would unreasonably restrict the number of citations that could be issued and would seriously undercut the Congressional intent to provide ‘an effective enforcement program’ and ‘to assure so far as possible, every working man and woman in the nation safe and healthful working conditions.’ (See section 2(b)(1) and 2(b)(10) of the Act) Moreover, section 9(a) of the Act provides that a citation ‘shall * * * issue’ whenever the Secretary, ‘upon inspection or investigation’ believes that an employer has violated any standard promulgated pursuant to section 6 of the Act. Thus, Respondent’s contention to the contrary, the issuance of citations based on investigations are not only authorized, but even mandated, by the Act.

2. The cited standard applies to a mobile crane operating in transit with a load.

In its defense on the merits, respondent first argues that the cited standard does not apply to mobile cranes or, ‘in any event,’ to mobile cranes in transit with a load. This Judge disagrees with both contentions.

Subpart N is entitled ‘Cranes, Derricks, Hoists, Elevators, and Conveyors’[8] and § 1926.550, a section thereunder, is entitled ‘Cranes and Derricks’ and divided into six subsections:

(a) General requirements

(b) Crawler, locomotive and truck cranes

(d) Overhead and gravity cranes

(e) Derricks

(f) Floating cranes and derricks.

A reading of the provisions of subpart (a) General Requirements persuades this Judge that § 1926.550(a)(15)(i) obviously was intended to apply to all operating cranes with loads and their associated equipment, including cranes in transit with a load.

The introductory portion of the standard in question, § 1926.550(a)(15), does not recognize different types of cranes or derricks; it merely references ‘equipment or machines’ without defining these inclusive terms and then prescribes that they ‘shall be operated proximate to power lines only in accordance with the following:’ The subsections following then describe, among other things, the various minimum clearances that must be maintained between any part of the ‘crane’ or its load and electrical distribution and transmission lines under certain well-defined circumstances.

The objective of this standard, of course, is plain— to eliminate the possibility of machines and equipment of cranes and derricks coming into electrical contact with energized lines which could result in electrical shock and electrocution hazards. Also, the express terms of the standard give to owners of all cranes operating in proximity to energized power lines fair warning of the conduct it prohibits or requires. To accept respondent’s interpretation of the standard’s applicability would create an anomaly and exclude from coverage a type of crane which is in constant use in the construction and other industries.

Respondent’s primary reliance on Diamond Roofing v. Occupational S. & H. Com’n, 528 F.2d 645 (5th Cir. 1976), for support of its contention that this standard is inapplicable to mobile cranes or any cranes in transit with a load is misplaced. That case stands for the proposition that whenever terms conveying distinct meanings are employed together in one section of a standard to describe conditions to be covered by the standard’s requirements, the inclusion of one such term and not the other in another place of the same subpart will be construed as an intent to exclude the omitted term. There, the Fifth Circuit Court of Appeals held that because the general provision clause under 29 C.F.R. § 1926.500(a) employed the terms ‘floor’ and ‘roof’ to describe ‘openings’ and ‘holes’ and because the terms ‘floor opening’ and ‘floor hole’ were specifically defined at another point in the subpart to include an opening and a hole in a roof the Secretary’s use of the undefined term ‘opensided floors’ in another standard in the same subpart would not be construed as also applying to ‘opensided roofs.’

Here, however, the term ‘equipment or machines’ is a general or inclusive term appearing in a subsection entitled ‘General Requirements’ under a section entitled ‘Cranes and Derricks.’ The term ‘equipment or machines’ encompasses the more specific term ‘mobile cranes,’ and its use certainly does not convey a meaning distinct from mobile cranes. Therefore, when read in context, the applicability of § 1926.550(a)(15)(i) to all cranes and derricks including mobile cranes appears clear.

In response to respondent’s contention that the cited standard does not apply to any type of crane in transit with a load, it should be pointed out that § 1926.550(a)(15) provides that ‘equipment or machines shall be operated proximate to power lines only in accordance with the following:’ [emphasis supplied] and then follows with a standard which prescribes requirements for movement of such equipment or machines ‘in transit with no load and boom lowered.’ (See § 1926.550(a)(15)(iii).) The implication of this latter requirement is obvious—the term ‘operated’ in § 1926.550(a) conveys a much broader meaning than the respondent has chosen to give it. Its meaning is not limited to situations where a crane is in a stationary position and the boom is supporting a load, but rather, also covers conditions where a crane or derrick and associated equipment are in transit with or without a load. This interpretation is completely in harmony with the standard’s express provisions, as well as its objective.

3. The complainant established by a preponderance of evidence that the respondent was in violation of the cited standard on February 11, 1976.

The burden of proof with respect to all elements of a violation of a safety or health standard rests with the Secretary of Labor. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975).

To establish a prima facie violation of § 1926.550(a)(15)(i), the complainant must establish the applicability of the standard to the existing condition, and prove non-compliance with the standard’s prescribed requirements, the potential or actual employee exposure to the violative condition, and either the employer’s actual or constructive knowledge of the conditions constituting the violation or the means of knowledge of other conditions likely to produce or contribute to the violation.

In this case, it is undisputed that the crane’s jib made contact with the energized lines resulting in the death of one respondent employee and serious injury to another. Respondent, however, argues that the accident of February 11, 1976, resulted ‘solely’ from its crane operator’s negligence and respondent did not know and could not have foreseen its employee’s negligence.

A corporate employer, of course, can only operate through its agents and, therefore, its absolute and continuing duty to ‘comply with occupational safety and health standards promulgated under this Act’ (section 5(a)(2) of the Act) necessarily has to be delegated either to supervisory personnel or other employees. This delegation, however, cannot be permitted to relieve the corporate employer of its duty to comply with a particular standard; otherwise, the effectiveness of safety standards would be nullified and the manifest legislative intent of the Act defeated. If a corporate employer entrusts its personnel with the performance of activities which foreseeably will require compliance with particular safety and health standards, the employer continues to be responsible for the failure of those employees for reasons of negligence to comply with that standard irrespective of whether the employees are supervisors or ordinary employees. This principle is clearly consistent with the Congressional intent to impose on employers ‘final responsibility’ for compliance with the Act (See S. Report No. 91–1282, 91st Cong. 2d Session pp. 10–11).

The respondent, through its construction foreman Jonhinass Herman, had assigned the task of transporting the pipe from the storage area to the dam excavation area to its crane operator, Raymond Kitchens. In order to reach the excavation, it was necessary for the crane and its load to go underneath the electrical transmission lines crossing the worksite. Under the existing circumstances, it would be obvious to any reasonable prudent employer that the mobile crane would be operating in the vicinity of these energized lines, that a real danger of contact existed, and that compliance with a standard governing minimum clearances would be required.

Unquestionably, the negligent actions of respondent’s crane operator were primarily responsible for the failure to maintain the prescribed distance between the crane jib and the energized lines and the resulting death and injury to other respondent employees. Additionally, however, Mr. Herman, respondent’s supervisor of crane operations on February 11th, also contributed to the violation due to his failure to assign a ‘flag person’ to walk ahead of the crane boom to prevent contact with the overhead lines in contravention of respondent’s instruction to its crane supervisors (See respondent’s Exhibit B, rule 16). Publication of the instruction establishes respondent’s recognition that this procedure lessens the chance of contact with energized lines.

In this Judge’s view, the Secretary fulfilled his burden of establishing ‘employer knowledge’ of this violation when he proved that respondent’s supervisory personnel and crane operator had knowledge of the conditions which conceivably could lead to non-compliance with the standard and their failure to maintain a reasonable standard of care in regard to these conditions.

Because the respondent here assigned its crane supervisor and operator the task of carrying out duties requiring compliance with the standard in question, their combined negligent actions resulting in exposure of other respondent employees to the violative condition will be imputed to the respondent. Application of such a principle will encourage employers to assign their compliance responsibilities to the most competent employees and maintain all necessary supervision of their employees; both methods will tend to reduce the likelihood of accidents occurring as the result of employee negligence.

4. A $700.00 penalty for respondent’s violation of § 1925.550(a)(15)(i) (a)(15)(i) is appropriate.

All record evidence relating to the four factors prescribed by section 17(j) of the Act in assessing penalties, the size of respondent’s business, its good faith, gravity of the violation, and history of prior violations under the Act have been considered.

As of February 11, 1976, respondent employed approximately 199 employees at the worksite. Although nine previous inspections of respondent construction sites have been conducted by the Secretary, the hearing record discloses only that ‘[t]here have been citations and violations apparently found at these other sites * * *.’ This evidence is considered insufficient to find that respondent has a significantly adverse past history of violations under the Act. Respondent has an extensive safety program for its employees and the compliance officer was of the opinion that respondent ‘has made a very good faith effort in trying to comply with the Act.’

The severe gravity of the violation, of course, was made clear by the death and hospitalization of respondent’s employees.

Based on the foregoing, the proposed penalty of $700.00 is considered appropriate and will encourage respondent to impress on its supervisors and employees the necessity of using all reasonable care when their duties require compliance with specific provisions of the Act.

Findings of Fact

Based on the credible evidence of record, the following facts are found; any proposed findings of fact submitted by the parties inconsistent therewith are denied:

1. On February 11, 1976, respondent was engaged in construction work at the Sooner Dam and power plant project located approximately eleven miles west and nine miles north of Pawnee, Oklahoma. Respondent had about 199 employees working at this site (Complaint’s request for admission No. 1 and respondent’s response; Tr. 77).

2. At the worksite, electrical distribution lines were in place on poles which were approximately 35 feet in height above the ground, located approximately 300 feet apart, and running generally in an east-west direction.

3. These electrical distribution lines carried 7200 volts of electricity and were strung at an approximate height of 25 feet to 35 feet above the ground (Complaint’s request for admission No. 3 and respondent’s response).

4. On February 11, 1976, at approximately 8:00 a.m., respondent’s crane operator, Raymond Kitchens, and respondent’s laborers, Arnulfo Traga and Trustoso Tobias, were assigned by respondent’s construction foreman, Jonhinass Herman, the task of moving pipe by means of a Grove full hydraulic, self-propelled crane, commonly known as a mobile crane, from the pipe storage area to the excavation, a distance of approximately 200 feet (Tr. 12; Respondent’s answer to interrogatory No. 1.(b)). No instructions were given to the crane operator concerning how he was to carry the pipe (Tr. 14) and there is no indication that the supervisor assigned a flag person to walk ahead of the crane boom to prevent contact with the overhead lines.

5. Cables were wrapped around six or seven 20-foot lengths of six inch steel pipe and then attached to the hook on the boom of the crane. The load weighed approximately 1500 to 2000 pounds. The length of the boom with its jib was approximately 48 to 50 feet. After the load of pipe was attached and positioned for transit, the boom was at an angle of about 30 to 35 degrees (Tr. 12–14).

6. Crane operator Kitchens had been directed to follow a route specified by his immediate supervisor, Herman, and required by the conditions and layout of the construction site (Respondent’s answer to interrogatory No. 3 and 4). This route would take the crane underneath the energized distribution lines which were approximately 100 feet from the pipe storage area (Respondent’s answer to interrogatory No. 1(a)).

7. Crane operator Kitchens did follow such route on February 11th and the underside of the jib contacted the power lines at a point approximately 28 feet above the ground, immediately killing Mr. Tobias and seriously injuring Mr. Traga. At the time of the accident, both employees were engaged in holding the pipe steady (Tr. 19–19).

8. John Cofield, respondent’s project manager, saw the accident at the time it happened and immediately ran toward the crane yelling for Kitchens to ‘back off, back off.’ Kitchens immediately backed off (Tr. 19).

9. Mr. Kitchens is an experienced crane operator, has performed similar ‘pick and carry’ operations ‘hundreds of times,’ and ‘[q]uite frequently’ has passed beneath energized power lines (Tr. 27, 47).

10. Prior to February 11, 1976, Mr. Kitchens had operated the particular crane in going under these particular electrical distribution lines approximately 10 or 12 times (Tr. 27–28).

11. On February 11, 1976, it was physically possible for Mr. Kitchens to have operated the crane underneath the power lines with the load and still maintain more than a ten-foot clearance from the lines if the cables supporting the load had been shortened (Tr. 36–37).

12. Respondent has a formal and extensive safety program which includes a customary procedure for the publication and dissemination of numerous safety manuals to its employees (Tr. 115–128; Exhibits A, B, R-C, R-D–1, and D–3).

13. Respondent’s crane operator Kitchens previously received a copy of Exhibit A entitled ‘Crane Safety Operator Rules,’ a copy of Exhibit D–1 entitled ‘Safety Rules for Employees,’ and a copy of Exhibit D–4 entitled ‘Construction Safe Practices and Basic Safety Regulations’ from respondent (Tr. 35–36, 42, 264–265).

14. Exhibit B, entitled ‘Crane Safety, Supervisor Rules,’ is published by respondent and customarily distributed to supervisory employees. Rule 16 provides as follows:

When moving cranes over job site a flag person is to walk ahead of crane boom to prevent collision with other equipment or contact with overhead lines. A flag person is to check the ground over which crane will move. Boom is to be kept low when traveling on unstable ground.

15. The crane operator, Kitchens, attended at least thirty-five safety meetings held by respondent in 1975, and ‘quite a few’ of these meetings dealt with instruction to avoid electrical distribution lines (Tr. 27). Mr. Kitchens had been given specific warnings about the particular power line ‘quite a few times’ prior to February 11, 1976 (Tr. 32–33, 235–236) and was familiar with the requirement of operating a crane no closer than 10 feet from an energized power line (Tr. 35–36).

16. The warning sign depicted in Respondent’s Exhibit I(3) was painted on the inside and outside of the operator’s cab door on the particular crane in question (Tr. 192–193). These signs read as follows:

DANGER, KEEP EQUIPMENT TEN FEET FROM POWER LINES OR OBSERVE STATE MINIMUM CLEARANCE.

17. The two laborers or helpers, who were assisting the crane operator on February 11, 1976, also had been given specific warnings about this power line (Tr. 232–233).

18. The crane’s contact with energized electrical distribution lines on February 11, 1976, was primarily due to the failure of respondent’s crane operator to use all reasonable care under the existing conditions.

19. The crane supervisor’s failure to assign a flag person to prevent contact with the energized lines also contributed to the accident.

20. As a result of the crane’s contact with the energized lines, a respondent employee was electrocuted and another respondent employee was seriously injured resulting in hospitalization.

21. If any part of a crane contacts an energized electrical distribution or transmission line, there is a substantial probability that death or serious physical harm will result.

Conclusions of Law

1. Respondent is an employer engaged in a business affecting commerce within the meaning of 29 U.S.C. § 652(5).

2. The requirements of standard 28 C.F.R. § 1926.550(a)(15)(i) are applicable to mobile cranes in transit with a load.

3. On February 11, 1976, respondent was in violation of 29 C.F.R. § 1926.550(a)(15)(i), and this violation was ‘serious’ within the meaning of 29 U.S.C. § 666(j).

4. A penalty of $700.00 for respondent’s violation of 29 C.F.R. § 1926.550(a)(15)(i) is appropriate.

ORDER

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

The Citation dated February 27, 1976, as amended, is AFFIRMED, and a $700.00 penalty ASSESSED.

James A. Cronin, Jr.

Judge, OSHRC

Dated: October 26, 1976

[1] 29 U.S.C. § 661(i). The direction for review was issued ‘for error’ and did not specify issues to be considered by the Commission. Respondent filed a petition for discretionary review and a brief on review. The Secretary did not file a brief on review. Therefore, the issues on review are those raised by respondent.

[2] The standard provides:

§ 1926.550 Cranes and derricks.

(a) General requirements.

(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.

[3] Section 9(a) of the Act, 29 U.S.C. § 658(a), provides in part:

Citations

Sec. 9.(a) If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of Section 5 of this Act, of any standard, rule or order promulgated pursuant to Section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer . . ..

[4] The standard provides:

§ 1926.550 Cranes and derricks.

(a) General requirements.

(15)

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

[5] Although respondent correctly asserts that it was not cited for failure to comply with the standard at 29 C.F.R. § 1926.550(a)(15)(iv), requiring an observer, the fact that a flag person was not assigned is evidence of the inadequacy of respondent’s safety program.

[6] Citation and complaint initially alleged an ‘inspection’. At the outset of the hearing, the complaint was amended over objection by respondent to allege ‘inspection and investigation’ (Tr. 5).

[7] ¶ IV of the complaint more specifically alleges that the violation took place ‘on February 11, 1976.’

[8] Although not appearing in the subpart’s title, § 1926.551 entitled, ‘Helicopters,’ and § 1926.556 entitled, ‘Aerial Lifts,’ also are included under subpart N.