UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 3433

LIDSTROM, INC.,

 

                                              Respondent.

 

 

March 30, 1976

 

DECISION

 

 Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner.

The decision of Administrative Law Judge Alan M. Wienman in this case has been directed for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as ‘the Act’]. Judge Wienman affirmed a citation for serious violation issued to respondent Lidstrom, Inc. and assessed a $600 penalty for Lidstrom’s failure to comply with the standard published at 29 CFR § 1926.550(a)(15)(i) by operating a crane within 10 feet of energized power lines.[1] Neither party petitioned for review of the Judge’s decision. Commissioner Moran ordered review on his own motion. The issues before us are: (1) whether respondent’s crane operator was exposed to a hazard; (2) whether respondent was the ‘employer’ of the crane operator; and (3) whether respondent was responsible for the asserted error in judgment by the crane operator.

Lidstrom is a Wyoming corporation with offices located in Wheatland, Wyoming, where it is engaged in contract construction. Under an oral lease agreement Lidstrom supplied a crane and crane operator to the Gifford-Hill Company for the purpose of moving pipe at a jobsite near Mitchell, Nebraska. Upon the arrival of the crane operator at the jobsite, Gifford-Hill’s foreman showed him the pipe and where it was to be placed. The crane operator testified that when he started working he observed the power lines near the work area, but after moving the crane twice, he ‘got too close’ to them. The crane apparently touched the power lines, and a Gifford-Hill employee who had been attaching the crane hook to the pipe was electrocuted.

After the citation for serious violation was issued to Lidstrom, the parties stipulated that the crane came within ten feet of the power lines. After a hearing, Judge Wienman found that the crane operator was subjected to the possibility of electrocution or severe electrical shock and that he had not been given adequate instructions concerning unsafe working conditions. The Judge concluded that Lidstrom had a duty to comply with the Act that was not negated by its lease agreement with Gifford-Hill.

Exposure to the Hazard

Lidstrom argues that its crane operator was not exposed to a hazard. The testimony of the compliance officer, relied upon by the Judge in finding exposure of the crane operator, is as follows:

Q. Now what hazard, if any, would this situation have represented to any of the respondent’s employees at the time?

 

A. This would depend on the individual reaction of the operator. If there is no oiler with the crane—and the reason I say that is if the operator stays at his controls in the cab usually he is safe from electrocution. If he has his hand on the cab frame itself, he may be electrocuted. If he tries to jump clear of the crane he may be electrocuted.

 

Lidstrom contends that there is no evidence showing that the operator did anything but stay at his controls, and according to the testimony he would ‘usually’ be safe from electrocution.

We reject Lidstrom’s argument. It is clear that Lidstrom’s operator was exposed to the hazard of possible electrocution. Although he ‘usually’ would be safe, his safety depended upon his reaction. If he placed his hand on the cab frame he might have been electrocuted. The restrictive concept of exposure to a hazard advocated by Lidstrom is not consistent with the essential purpose of the Act of preventing job illnesses and injuries.[2] The Judge’s finding that the crane operator was exposed to the hazard of electrocution is affirmed.

‘Employer’ of the Crane Operator

Lidstrom argues that it was not an ‘employer’ of the crane operator.[3] It contends that a bailment existed by reason of the lease agreement and that the work was under the supervision and control of Gifford-Hill as bailee. The Judge rejected this contention, holding that an employer’s duty to furnish a safe workplace cannot be avoided by delegation to another. The Secretary seeks affirmance of the Judge’s ruling.

A similar situation occurred in Frchlick Crane Service, Inc. v. O.S.H.R.C., 521 F.2d 628 (10th Cir. 1975), wherein Frohlick, the lessor of a crane and operator, argued that it was not an employer for purposes of the Act. The Court and the Commission rejected the argument, and endorsed the Administrative Law Judge’s holding that, where the lessee of a crane relies upon the expertise of the crane operator and gives no particular direction as to the operation of the crane, then it is the duty of the lessor, the actual employer of the crane operator, to comply with the minimum safety requirements set forth in the standards. 521 F.2d at 631. Also, typically it is the lessor that is more familiar with the equipment and the experience and ability of the operator it furnishes. Cf. Transamerican Freight Lines, Inc. v. Brado Miller Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229 (1975).

Here, the Gifford-Hill foreman relied upon the crane operator’s expertise and the foreman did not supervise the operation of the crane. The operator testified that Gifford-Hill’s foreman showed him where the pipe was to be placed and ‘left the decision up to me as to how to set the crane up and do it.’ In addition, Lidstrom paid the crane operator, and he had final authority to prevent the operation of the crane in an unsafe manner. Lidstrom’s argument that a bailment existed, and it was thereby absolved of liability, is rejected.

Actions of the Crane Operator

Lidstrom maintains that it should not be held responsible for an error in judgment by the crane operator and that an employer cannot be held to the standard of being an absolute guarantor or to insure that its employees will observe all safety standards. The Judge rejected this contention, finding that Lidstrom had no safety program for its crane operators and that it did not issue instructions for procedures to be taken upon encountering unsafe conditions. He concluded that Lidstrom could have avoided the hazard with the exercise of reasonable diligence. On review the Secretary relies on the Judge’s decision.

An employer is not an insurer under the Act, but he is expected to do what is realistic to comply with its terms. Hazardous conduct may be considered preventable when it might have been precluded by means of feasible precautions. Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975). The facts in Butler Lime & Cement Co. were similar to those here except that no lease agreement existed. A brick-truck driver was alone on a jobsite, and was electrocuted when he positioned his truck with the boom 8 feet under 4800 volt power lines. The court held:

[W]hether a serious violation of the standard was forseeable with the exercise of reasonable diligence depends in great part on whether Butler’s employees . . . had received adequate safety instructions. If Butler failed to give adequate warning to its employees of the need to stay at least ten feet away from the power lines, in accordance with the standard 1910.180(j), then an accident occurring because a driver violated the regulation would seem to have been forseeable.

 

520 F.2d at 1018.

 

Here the crane operator received inadequate safety instructions. Although the crane operator testified that he had been ‘instructed from time to time’ about power line hazards and that it had been ‘brought to [his] attention’ on different jobs, Lidstrom’s assistant manager testified:

Q. After you went to work for the Respondent, Lidstrom, Incorporated, can you tell me what, if any, safety instructions he [the crane operator] received from the company? What sort of safety program or instructional program did Lidstrom have for its crane operator or operators?

 

A. As a crane operator alone, nothing. We’ve had several jobs where we’ve had weekly or two weekly or monthly safety meetings that [the crane operator] had been employed on. We—I suppose we’re negligent in not [having] enough safety meetings at Mitchell. But he had been cautioned about high voltage power lines.

 

Q. Who cautioned him and when, if you know of your own knowledge?

 

A. I don’t know of my own knowledge. Just what I heard here today.

 

The crane operator’s judgment was not based on orderly and comprehensive safety training given to him as a crane operator but instead was based upon cautionary warnings that were almost causal. Plainly, more could have been done in the way of warnings or instructions. We hold that respondent has violated the cited standard.

Lidstrom has 19 employees, and no previous history of violations under the Act. However, the violation is grave. The $600 penalty assessed by the Judge is appropriate pursuant to section 17(j) of the Act.

Accordingly, it is ORDERED that the Judge’s decision is affirmed.

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

Dated: March 30, 1976

 

BARNAKO, Chairman, concurring.

I concur in the disposition and would assign as reason therefor those given by the Judge in his report. The questions raised by the direction for review were evidentiary in nature; the Judge weighed the evidence; and it cannot be said that he erred because his findings are supported by the preponderant evidence. I join in the citation of Frohlick Crane Service, Inc. v. O.S.H.R.C., 521 F.2d 628 (10th Cir. 1975); the decision was rendered subsequent to the filing of the Judge’s report in this matter.

 

MORAN, Commissioner, Dissenting:

The critical question in affixing liability here is whether respondent was the employer of the crane operator at the time of the violation. Although we have held that employment relationships are not to be construed according to technical concepts of the common law, we have recognized that control over a worker is an important consideration in ascertaining such relationships. Secretary v. Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973), remanded on other grounds sub nom Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974). Under the circumstances of this case, I find control to be the paramount consideration. However, it is the right of control, not the exercise of it, that is governing. See Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975), which adopted the dissenting opinion in Secretary v. Southeast Contractors, Inc., 8 OSAHRC 285 (1974).

In this case, the Gifford-Hill Company was in the process of laying pipeline when it discovered it needed a crane to assist with that work. Gifford-Hill then contacted respondent about leasing one and respondent assented, sending a crane and an operator to Gifford-Hill’s worksite. The operator was an experienced worker who knew of the dangers of powerlines and specifically knew of the existence of the line at Gifford-Hill’s worksite. Upon the operator’s arrival at the worksite, Gifford-Hill’s foreman showed him where the pipelines were to be laid and directed him as to what was to be done. The foreman and another Gifford-Hill employee signaled the crane operator in the handling of the concrete pipelines. Apparently neither of them were observing the boom, and the crane came into contact with the powerline.

Relying on Gifford-Hill’s inadequate supervision as to the operation of the crane, my colleagues’ conclude that respondent violated the standard. This conclusion is reached despite the fact that respondent ceded all supervisory control to Gifford-Hill, that the rental price of the crane did not include supervision by respondent, and that the crane operator considered himself to be under the direction and control of Gifford-Hill and testified that he was ready to comply with the instructions of Gifford-Hill’s foreman. Additionally, respondent’s manager testified that he exercised no control or supervision over the operator and that all such control was in the hands of Gifford-Hill.[4] Under these circumstances, I find it incredible that my colleagues find respondent liable for the violation.

The majority’s reliance upon Frohlick Crane Service, Inc. v. OSAHRC[5] is misplaced. In affirming the Commission’s decision in the case, the court concluded that ‘. . . on the facts before it the Commission did not err in determining that Frohlick [the lessor] was [the crane operator’s] employer when the standard was violated.’[6] In that case, the lessor did actually retain some control over the crane’s operation. In fact, as shown in Secretary v. Frohlick Crane Service, 9 OSAHRC 531, 532 (1974), agents of the lessor had on occasion inspected jobsites where its rented cranes were located and assumed control over the operation of the cranes when they determined that hazards existed. Furthermore, since the crane was in the process of leaving the jobsite at the time of the violation, the court found that the lessee had ‘no control of any sort over’ the crane operator when the violation occurred.[7]

When, as here, a respondent has neither exercised control over nor retained the right to control a ‘loaned’ employee, and the lessee has full control over him, the respondent is not an employer with respect to that employee. It would be both unjust and contrary to the intent and purpose of the Act to impose liability on a respondent under such circumstances.

Commissioner Cleary correctly states that ‘[a]n employer is not an insurer under the Act.’ However, my colleagues are not following that rule of law in this case. As Commissioner Cleary notes in his opinion, the crane operator, who had 20 years of experience with cranes, had been advised of the danger of powerlines. Since he admitted having this knowledge, I am unable to comprehend how that knowledge could have been improved upon by ‘orderly and comprehensive safety training.’ Such a conclusion elevates form over substance and disregards the responsibility of employees to comply with the Act as required by 29 U.S.C. § 654(b).

Since Chairman Barnako relies on Judge Wienman’s decision, the same is attached hereto as Appendix A in order that the public may know the basis of this decision.

 

APPENDIX A

 

7

 

           


 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 3433

LIDSTROM, INC.,

 

                                              Respondent.

 

FINAL ORDER DATE: May 10, 1974

 

DECISION AND ORDER

 

APPEARANCES:

JOHN RENICK, ESQUIRE, Office of the Solicitor United States Department of Labor, Kansas City, Missouri for the Secretary of Labor

 

RAYMOND B. HUNKINS, ESQUIRE, Jones, Jones & Hunkins, P. O. Drawer 531 Wheatland, Wyoming for the Respondent

 

STATEMENT OF THE CASE

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

The Citation for Serious Violation, issued June 13, 1973, alleges that the violation resulted from a failure to comply with the standard promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 FR 243), and codified in 29 CFR 1926.550(a)(15)(i).

The description of the alleged violation contained on said Citation states:

‘(Near Haig School) A truck crane used to handle and set irrigation pipe sections was not operated and positioned in such manner that a part of the crane or crane load would not come nearer than 10 feet from a power transmission line rated 50 kv. or below. The power transmission line was not de-energized, nor were there insulating barriers. The employer’s employee was operating the crane.’

 

The standard as promulgated by the Secretary provides as follows:

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

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

 

Pursuant to enforcement procedures set forth in Section 10(a) of the Act, Respondent was notified by letter dated June 13, 1973 from Warren Wright, Area Director, Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess a penalty for the violation alleged in the amount of $600.00.

After Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at Gering, Nebraska on October 16, 1973.

THE ISSUES

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

SUMMARY OF THE EVIDENCE AND DISCUSSION

The parties agreed to the essential facts of the fatal transaction which initiated these proceedings. It was stipulated ‘that on May 18, 1973, off of Highway 92 approximately three miles west and one mile north of Haig School the boom of a truck crane owned by the Respondent and being operated by its operator came within ten feet of overhead electrical power lines rated below 50 kilovolts and an employee of the Gifford-Hill Company hooking tongs on a concrete pipe being lifted by the crane at the time was electrocuted.’ (T. 4)

Complainant presented one witness, OSHA Compliance Officer Uldis Sid Levalds, who investigated the accident on May 30, 1973. He began his investigation at the office of Gifford-Hill Company in Gering, Nebraska and later proceeded to the accident site with Glen Farmer, General Manager of Gifford-Hill. Mr. Farmer identified the site at a place approximately three miles west and one mile north of the Haig School. Levalds observed power transmission lines running on the west side of the road with a cross-over at the accident site. He also observed three scarred areas on the conductors (T. 8, 9).

Mr. Farmer informed Levalds that the crane involved in the accident belonged to Respondent and was operated by a Lidstrom employee (T. 11). He referred Levalds to a Mr. Brunson who was in charge of the work for Lidstrom (T. 12).

Brunson told Levalds that he was familiar with the accident site, and had been there himself prior to the day of the accident. On May 17th he had directed the crane operator, Ted Holkan, to take the crane to the site the following day (T. 12).

Levalds later interviewed Holkan who told him that he once had been cautioned about working near power transmission lines (T. 13). He was aware of the presence of power lines on the day of the accident because he had previously worked in the area. (T. 14)

Levalds also ascertained that the power distribution grid belonged to the Roosevelt Power District. He made inquiries at their office in Mitchell and learned that the transmission lines in question carried 7,200 volts (T. 15–16).

Levalds testified that the transmission lines in question were not deenergized at the time of the accident and no insulating barriers had been erected. The situation, he stated, exposed the operator of the crane to the hazard of electrocution (T. 24).

Levalds was examined closely as to supervision of the crane. Brunson, the supervisor foreman for Lidstrom employees, was not present at the site at the time of the accident (T. 29). The Gifford-Hill foreman at the site was a man named Engelhaupt who was signaling the crane and handling the concrete pipes (T. 30).

Earl H. Ferguson, Respondent’s Assistant Manager, testified that Respondent is engaged primarily in concrete work, but does some equipment rental as a normal part of its business operation (T. 32). At the time of the accident Respondent was installing structural concrete items in western Nebraska on a subcontract with Gifford-Hill. (T. 32) Five or six times during the course of the project Respondent was asked to provide a piece of equipment or do some extra work for Gifford-Hill (T. 35). On one occasion prior to May 18th Glen Farmer, General Manager of Gifford-Hill, inquired about leasing a crane to lay some pipe. Ferguson quoted him a rental rate on a crane and told him to contact Brunson and inform him when the equipment was wanted. If Respondent was not using the crane that day, Gifford-Hill could have it. On May 17, 1973 Farmer contacted Brunson and said he would like to have the crane the following day. The next morning Brunson sent the crane over to the location (T. 36). The lease arrangement was an oral agreement, and Ferguson later sent Gifford-Hill a bill for rental of the crane.

Ferguson testified the lease agreement did not include any supervision and covered only the operator and the machine; that Lidstrom exercised no dominion or control or supervision over the crane after it left for the Gifford-Hill job (T. 41).

On cross-examination Ferguson testified that Brunson, the foreman who directed the crane to the site, probably knew of the existence of the power distribution lines and that the crane had worked in the area previously without accident (T. 47). He stated that Respondent normally did not provide a signalman when it leased a crane, and he did not know for sure whether OSHA standards required a qualified individual to direct the operation of the crane (T. 48). At the time of the oral lease agreement no inquiry was made to ascertain whether Gifford-Hill would provide a qualified signalman (T. 49). Ferguson ‘supposed’ the crane operator had the authority not to perform acts which he believed to be unsafe (T. 50).

When asked about the safety program Respondent conducted for its crane operators, Ferguson replied:

‘as a crane operator alone, nothing. We’ve had several jobs where we have weekly or two weekly or monthly safety meetings that Mr. Holkan had been employed on. We—I suppose were negligent in not enough safety meetings in Mitchell. But he had been cautioned about high voltage power lines.’ (T. 53–54)

 

Ferguson also testified that he relied upon the supervisory personnel of the corporation leasing the equipment to have good judgment about how a crane should be operated in a safe manner. He relied upon that judgment with respect to the May 18th, 1973 lease (T. 56).

Ted Holkan testified that he had ‘been around cranes for the most part of 20 years’ and had ‘operated steady for 12.’ He was a member of the Operating Engineers Union and was familiar with the hazards and safety precautions to be taken in the operation of a crane. He had been advised concerning the danger which power lines represent to cranes (T. 63). He was directed to the jobsite by Brunson. At the site the Gifford-Hill foreman showed him where the pipe was to be laid and ‘left the decision up to me as to how to set the crane up and do it.’ Holkan observed the power line in the vicinity. He placed his crane along the edge of road north of a line that crossed the road, and he picked up pipe and moved down under the telephone line while working north of the main line. He moved ahead two times and continued the job ‘but on this last one I got too close’ (T. 61–62). He had no spotter observing the boom (T. 62).

Holkan testified that when working with his own crew ‘there’s always someone that I can rely on to keep me out of tight spots.’ But Respondent provided no spotter on this job, apparently relying on Gifford-Hill’s crew (T. 64). Holkan did not consider the job on May 18th, 1973 to be unsafe, but did not realize that he was as close to the power lines, misjudging the distance (T. 65–66).

There is no dispute about the fact that the crane was operated in violation of safety regulation 29 CFR 1926.550(a)(15)(i), but Respondent urges that under the terms of its lease arrangement the work being done was under the supervision and control of Gifford-Hill and that any hazard created at the accident site was the result of lack of supervision by the lessee.

The defense urged by Respondent has been advanced by a number of crane equipment rental companies in other Commission proceedings.[8] In all cases the defense has been rejected, Commission decisions uniformly holding that the Act imposes a nondelegable responsibility upon the employer to furnish his employees with safe working conditions.

Respondent has a duty under Section 5(a)(2) of the Act to comply with the occupational safety and health standards promulgated thereunder. This duty is explicit If an employer creates a hazard by violating a standard thereby exposing his employees to physical harm he is properly subject to Citation no matter where the violation takes place. Responsibility for the violation in this case is clearly traceable to the Respondent.

Respondent’s witness, Earl H. Ferguson, testified that its foreman on the job, Brunson, knew that electrical power lines were present at the location he directed the operator to take the crane on May 18, 1973. This constitutes actual knowledge on the part of Respondent that the crane would be operated in near proximity to the power lines. Mr. Ferguson also stated that Respondent had no safety or instructional program for its crane operators. Mr. Holkan, the crane operator, did testify that he had been cautioned at some time about working near power lines but in view of Mr. Ferguson’s testimony this could only have been done on a casual basis. The crane operator was never furnished any written or verbal instructions about what to do if he encountered an unsafe situation. Not only did Respondent fail to properly instruct its crane operator but it also failed to provide either a spotter or signalman or to see that one was designated by Gifford-Hill to observe the clearance of the boom. Respondent defends its failures in this regard by claiming it relied on the judgment of the company to which it leased the crane. This is unacceptable.

That lessors of crane equipment frequently attempt to disclaim responsibility for providing supervision or assistance to their crane operators while performing work for a contractor-lessee is only one disquieting statistic revealed by a study of the cases. We note that during the brief history of the Act there have been no less than ten litigated proceedings involving deaths caused by a crane or its load failing to maintain sufficient clearance from energized electrical transmission lines.[9]

The instant case is yet another tragic illustration of the universally known fact that cranes and derricks operated in the vicinity of electric transmission lines are dangerous instrumentalities, so dangerous that the employer owes the crane operator a greater duty than a mere casual warning about the hazard involved. In the instant case the operator was provided neither with supervision nor with assistance in the form of a spotter to help him judge and maintain the requisite distance between the boom and the transmission wires. The crane operator did not violate any company rule or policy in his operation of the crane. Rather, the human error in misjudging the distance between the boom and the wires was in one sense predictable. We note that OSHA regulation 29 CFR 1926.550(a)(15)(iv) expressly warns of the necessity of providing the operator with a signalman to observe clearance where it is difficult for the operator to maintain the desired clearance by visual means. Unfortunately, as revealed by Mr. Ferguson’s testimony, the Respondent had little troubled itself to become familiar with ANSI and OSHA regulations. (T. 48–49)

The undersigned Judge does not view this as an accident attributable to an unexpected or unauthorized action on the part of an experienced employee. Rather, we are persuaded that the record shows dereliction on the part of Respondent in its failure to provide a safe workplace for its own employee. As Judge Morris stated in the Frohlick Crane Service case, the Act itself provides no exculpatory situations where that duty is not owed: ‘. . . the duty . . . to furnish a safe place to work is personal to the employer and cannot be avoided by delegation to another.’

Respondent was familiar with the worksite. Its own crews had earlier labored in the area to which Holkan returned on May 18th, 1973. With the exercise of reasonable diligence, a foreseeable hazard could have been avoided. We find that Complainant has established a prima facie case of a serious violation of the Act within the meaning of Section 17(k). The proposed penalty of $600.00 appears appropriate in view of the gravity of the offense, and we would be inclined to assess a penalty in a greater sum were it not for the small size of the employer and its excellent safety record prior to the accident.[10]

FINDINGS OF FACT

1. Respondent Lidstrom, Inc. is a Wyoming corporation with its principal office and place of business located in Wheatland, Wyoming where it is engaged in the construction contracting business.

2. In May, 1973, Respondent was employing a crane operator, Ted Holkan, at a worksite near the Haig School in Mitchell, Nebraska pursuant to a subcontract with the Gifford-Hill Company. (T. 4, 12, 33, R–1)

3. On May 18, 1973, off Highway 92, three miles west and one mile north of the Haig School in Mitchell, Nebraska, the boom of a truck crane owned by the Respondent and operated by its operator came within ten feet of overhead electrical power lines rated below 50 KV (T. 4, 5).

4. An employee of the Gifford-Hill Company was electrocuted while hooking metal tongs on a concrete pipe being lifted by the crane at the time the boom was within ten feet of the electrical power lines. (T. 4, 5, 23, Ex. G–3)

5. The electrical power lines were not deenergized nor were insulating barriers erected at the time of the electrocution (T. 24).

6. Respondent’s crane operator was given instructions on May 17, 1973, by one Brunson, Respondent’s foreman on this job, to take the crane to the site where the fatality occurred on May 18, 1973 (T. 12–14).

7. Respondent’s foreman had been working on this job since at least December 1972 and was aware that electrical power distribution lines were located in the area to which he directed the crane to be taken on May 18, 1973 (T. 12, 13, 47).

8. Respondent by oral agreement leased the truck crane in question to Gifford-Hill for the purpose of laying concrete pipe (T. 36, 37).

9. The crane operator was on the Respondent’s payroll on May 18, 1973 (T. 46).

10. Respondent did not provide a signalman or spotter to direct the operation of the crane on May 18, 1973, and made no inquiry as to whether Gifford-Hill would provide an employee for this purpose (T. 48, 49, 62, 64, 65).

11. Holkan received no instructions, directions or supervision from any Gifford-hill employee as to how the crane should be operated on May 18, 1973. He was shown where the pipe to be laid was and where to lay it (T. 60, 61).

12. Holkan observed the power lines when he arrived at the worksite to which he was directed to take the crane on May 18, 1973 (T. 61).

13. Holkan has been advised at some time by Respondent about operating a crane near power lines (T. 63). However, Respondent had no safety program for its crane operators nor did it issue any instructions, written or otherwise, as to procedures to be taken in the event an unsafe situation is encountered (T. 54, 55).

14. Holkan was exposed to possible electrocution or severe electric shock at the time the boom of the crane he was operating came within ten feet of or touched electrical power lines on May 18, 1973 (T. 24, Ex. G–3).

15. The gravity of the violation, the good faith of Respondent, its size, and previous safety history were duly considered by the undersigned Judge who finds a penalty of $600.00 appropriate under the total circumstances.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material hereto was, an employer within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 and the Safety and Health Regulations for Construction (29 CFR 1926.1 et seq.).

2. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

3. Respondent violated Section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated under the Act, 29 CFR 1926.550(a)(15)(i), as alleged in the Citation.

4. There was a substantial probability that death or serious physical harm would occur as a result of Respondent’s violation of 29 CFR 1926.550(a)(15)(i). With the exercise of reasonable diligence, Respondent could have known of the existence of the violation.

5. The proposed penalty of $600.00 is appropriate for said violation, which is deemed to be a serious violation within the meaning of Section 17(j) of the Act.

ORDER

Based on the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that:

1. The Citation for Serious Violation and penalty proposed therefor are affirmed in all respects.

 

Alan M. Wienman

Judge, OSAHRC


[1] This standard provides:

1926.550 CRANES AND DERRICKS

(a) General requirements

(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. . . .

[2] For a full statement of the separate views of the Commissioners on the exposure issue, see Gilles and Cotting, No. 504 (February 20, 1976).

 

[3] Section 3 (5) of the Act defines an employer in part as ‘a person engaged in a business affecting commerce who has employees.’

[4] It should be noted that Gifford-Hill was cited for a violation of the same standard as a result of this incident. The issuance of such a citation implies that the complainant believed that Gifford-Hill maintained control over the crane operator. This is still another example of the complainant’s ‘buckshot’ approach to enforcement of the Act. See, e.g., Anning-Johnson Company v. OSAHRC, 516 F.2d 1081, 1089 (7th Cir. 1975), where the court made the following observation:

We fail to see how requiring several different employers to [comply with the same standard] . . . fulfills the purposes of the Act any more effectively than requiring only one employer to do so.

 

[5] 521 F.2d 628 (10th Cir. 1975).

 

[6] Id. at 631–632 (emphasis added).

 

[7] Id. at 632.

[8] Secretary of Labor v. Frohlick Crane Service, OSAHRC Docket No. 890; Secretary of Labor v. Weicker Transfer and Storage Company and Godwin-Bevers Company, Inc., OSAHRC Docket Nos. 1362 and 1373; Secretary of Labor v. Ames Crane and Rental Service, Inc., OSAHRC Docket No. 2578.

[9] Secretary of Labor v. Eller Bros., Inc., OSAHRC Docket No. 406; Secretary of Labor v. Frohlick Crane Service, OSAHRC Docket No. 890; Secretary of Labor v. Winslow Crane Service Company, Inc. and Holsom Concrete Products Company, Inc., OSAHRC Docket Nos. 831 and 832; Secretary of Labor v. F. F. Green Construction Company, OSAHRC Docket No. 1015; Secretary of Labor v. Delmarva Power & Light Company, OSAHRC No. 1416; Secretary of Labor v. White Oak Corporation, OSAHRC Docket No. 1320; Secretary of Labor v. Ames Crane and Rental Service, Inc., OSAHRC Docket No. 2578; Secretary of Labor v. Weicker Transfer and Storage Company and Godwin-Bevers Company, Inc., OSAHRC Docket Nos. 1362 and 1373; Secretary of Labor v. Wayne Tayson and Eli Tayson d/b/a Tayson Construction Company, OSAHRC Docket No. 1141; Secretary of Labor v. Devco Building Company, OSAHRC Docket No. 2536.

[10] The foregoing Decision contains no discussion of one point advanced by Respondent in its Proposed Findings of Fact, namely that Respondent was neither a ‘contractor’ nor ‘subcontractor’ within the meaning of Section 1926.13 13 of the Safety and Health Regulations for Construction contained in Chapter XVII of Title 29. Respondent submitted no brief in which it clarified any contention that it was not subject to the cited regulations in its capacity as lessor of the crane. We surmise that Respondent meant to extend the contention that it was neither a ‘contractor’ nor a ‘subcontractor’ to an argument that it was not an ‘employer’ as defined in Section 1926.32(j) of Subpart C of the Safety and Health Regulations for Construction. This section provides:

(j) ‘Employer’ means contractor or subcontractor within the meaning of the Act and this part.

 

The Construction Regulations have been held inapplicable to a company serving as architect and engineer for a large construction project which had no construction workers at the jobsite. Sec. of Labor v. Grossman Steel and Aluminum Corp., et al, OSAHRC Docket Nos. 1127, 1135, 1165 and 1190. In the instant case Respondent supplied not only construction equipment in the form of a crane but labor in the person of the crane operator who was admittedly on Respondent’s payroll on May 18, 1973. It would appear therefore that Respondent was a ‘subcontractor’ as defined in Section 1926.13(c) which states, in pertinent part:

(c) The term ‘subcontractor’ under Section 107 is considered to mean a person who agrees to perform any part of the labor or material requirement of a contract for construction, alteration or repair.

cf. MacEvoy Co. v. United States, 322 U.S. 102, 108–9 (1944) . . . Ordinarily a contract for the supplying of construction equipment to a contractor would not, in and of itself, be considered a ‘subcontractor’ for purposes of this part.