SECRETARY OF LABOR, Complainant, v. SASSER ELECTRIC AND MANUFACTURING COMPANY, Respondent. OSHRC Docket No. 82-0178 _DECISION_ Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners. BY THE COMMISSION: This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. _See_ section 10(c) of the Act, 29 U.S.C. § 659(c). The Secretary of Labor has petitioned for review of a Commission judge's decision vacating the Secretary's citation to Sasser Electric and Manufacturing Co. ("Sasser") for serious violation of the OSHA standard at 29 C.F.R. § 1910.180(j)(1)(i).[[1]] The judge ruled that Sasser was not responsible for the violation, which occurred when a crane operator employed by a separate company operated his company's crane too close to power lines on Sasser's property. The judge found that Sasser had no knowledge of the existence of the violation. We affirm the judge's action in vacating the citation. I Sasser fabricates, installs and services diesel generators at a worksite in Winfield, West Virginia.[[2]] Its employees are mechanics and electricians. During a three-year period prior to the end of 1981, it had utilized Mountain Trucking Company about six times to load and unload generators. In December, 1981, a crane owned by Mountain Trucking Company was rented by Sasser's manager, Jim Sisson, to load a generator onto a flatbed trailer at Sasser's facility in Winfield. The crane was operated by Mountain Trucking's employee, Shelby Wisman, who had 14 to 15 years experience operating different sizes of equipment for Mountain Trucking. He had performed crane operations at the worksite on three or four previous occasions. That work had been performed without incident. Wisman first came to Sasser's worksite with a boom truck, which was unable to lift the generator high enough to place it on the trailer. Wisman, however, used the boom truck to move the generator to a point 12 to 15 feet west of the trailer. At that point, the center of the generator was 12 to 17 feet north of a point on the ground directly beneath power lines that ran across Sasser's property and carried 7200 volts (7.2 kv). During this operation, Wisman was cautioned by Sasser employees to watch out for the power lines. Although the crane operator felt some concern about the location of the trailer with respect to the power lines, he did not request that the trailer be moved. Wisman returned to Sasser's worksite with a larger crane at about 5:30 to 6:00 p.m. the same day. Although it was difficult to see the power lines at that time due to darkness, light snow, and rain, the headlights of two vehicles were directed at the trailer to improve visibility. The power lines were in front of Wisman during the operation of the crane. Wisman parked the crane well away from the power lines, with the generator between the lines and the crane. Sasser employees attached the generator to the crane's cable with choker cables. At that point, the cable was no closer than 12 to 17 feet from the lines. It was not necessary for the cable to move any closer to the lines in order to center the generator on the trailer. The crane lifted the generator onto the trailer and the crane's boom then was lowered in order to center the generator on the trailer. Once the generator was centered, the cable at its closest point was approximately 15 feet from the power lines. After the generator was placed on the trailer, Sasser employees removed the choker cables from the generator and prepared to disconnect the choker cables from the crane's cable. Before this was done, the crane swung back in the direction it had come, with two Sasser employees, Emmett Jeffers and manager Sisson, holding the choker cables. At this time the crane's boom or cable contacted a power line and there was a flash of electricity. As a result, Jeffers was electrocuted and Sisson was hospitalized. Sasser's employees had given directions by voice and hand signals to assist the crane operator in centering the generator on the trailer once the operator placed the generator onto the trailer. Thereafter, Sasser's employees asked the crane operator to lower the crane's cable so they could disconnect the cable. Except for these actions, Sasser's employees were not involved in the crane's operation or the movement of the crane's boom. II The judge found that the crane was not operated in compliance with the cited standard. However, he found that Sasser had no knowledge of the existence of the violation. He noted that Sasser had taken the precaution of warning the crane operator of the location of the power lines. He also noted that the same operator had performed the same type of work three or four times previously at Sasser's worksite without incident. The judge found that Sasser had no reason to suspect that the operator was unaware of the relevant safety standards. He found that the operator had not violated the 10-foot clearance in loading the generator and thus Sasser reasonably could assume that there would be no violation when the crane swung in the opposite direction. The judge reasoned that the violation occurred because the crane's boom had been lowered in centering the generator on the trailer, thus extending the boom closer to the lines before the crane swung back toward them.[[3]] He added that Sasser's employees probably did not realize the significance of the boom being lowered as the generator was being centered on the trailer, because they were not experienced in crane operations. The Secretary argues that Sasser could have reasonably foreseen the violation of the 10-foot clearance rule due to the close proximity of the power lines to the operation, the poor visibility, the crane operator's lack of familiarity with the specific crane involved, and because Sasser's employees assisted crane operators at the worksite. The Secretary also argues that an employer's duty to provide a safe workplace is not negated where a hazard to which the employees are exposed is under the control of a different contractor; the employer is responsible when it has reason to foresee that the independent contractor might perform the work in an unsafe manner. III As the judge correctly stated in his decision, an alleged violation cannot be affirmed unless it is established that the employer knew or with the exercise of reasonable diligence could have known of the violation. Scheel Construction, Inc., 76 OSAHRC 38/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD ¶ 21,263 (No. 8687, 1976). In this case, the cited standard requires that a clearance distance of ten feet be maintained between the power lines and any part of the crane and load. The crane involved here was under the control of a crane operator employed by a company separate from Sasser, and it is undisputed that Sasser did not have actual knowledge of the alleged violation. The dispositive issue, therefore, is whether Sasser exercised reasonable diligence in relying upon the crane operator to maintain sufficient distance from the power lines and whether Sasser could have known that the requirements of the cited standard would not be followed. In deciding whether Sasser exercised reasonable diligence, it is necessary first to consider the extent of an employer's duty under the Act when it hires an independent contractor. We agree with the Secretary that, even when the cited hazard is under the control of a separate company, the employer has a duty to protect its employees who are exposed to the hazards.[[4]] However, the fact that the cited employer has employees who assist in the work and have access to potential hazards does not mean that the employer cannot reasonably place some reliance upon the independent contractor. In many situations in the workplace, it is natural for an employer to rely upon the specialist to perform work related to that specialty safely in accordance with OSHA standards. Cf. Cities Service Oil Co., 76 OSAHRC 105/A2, 4 BNA OSHC 1515, 1518, 1976-77 CCH OSHD ¶ 20,999 at pp. 25,237-38 (No. 4648, 1976), aff'd, 577 F.2d 126 (10th Cir. 1978) ("Normally, when an employer hires an independent contractor to perform certain work, it relies on the contractor's expertise to perform the work correctly.") Further, in many instances it may not be feasible, because of an employer's lack of expertise, or wasteful, without necessarily resulting in the best achievement of safety for all employees, to require the contracting employer to duplicate the safety efforts of the specialist. Accordingly, while an employer has a duty to his own employees even when it relies upon a specialist to perform part of the work, the duty is of a different nature than when the employer performs the work itself. In a single employer situation, the employer by necessity assumes the responsibility to prevent violations. However, when some of the work is performed by a specialist, an employer is justified in relying upon the specialist to protect against hazards related to the specialist's expertise so long as the reliance is reasonable and the employer has no reason to foresee that the work will be performed unsafely. In this case, Sasser placed its reliance upon an independent contractor to perform part of the work. Sasser employees never operated cranes -- they only fabricated, installed and serviced machinery at the worksite involved. Whenever a crane was needed, Sasser hired a crane company. Mountain Trucking was a separate company, an independent contractor, with whom Sasser contracted to perform the specific task of moving a generator onto the trailer of a truck. Further, the cited hazard fell within the expertise of the crane operator. None of Sasser's employees were in the crane cab at the time of the incident, and only the crane operator had direct control over the cited hazard and could assure that the crane maintained sufficient clearance from the power lines as required by section 1910.180(j)(1)(i). Maintaining sufficient clearance in accordance with the standard is a requirement that a crane operator reasonably could be expected to know and comply with.[[5]] The evidence further establishes that Sasser's reliance upon the crane company was reasonable under the circumstances and that Sasser had no reason to foresee that the violation would occur. The crane operator, Wisman, had performed work for Sasser three or four times previously without incident.[[6]] Sasser's employees pointed out the location of the power lines to the crane operator. As the judge found in his decision, the crane was positioned well away from the power lines and the task of placing the generator on the trailer could have been accomplished without any part of the crane being within ten feet of the lines. There is no evidence that anyone realized that the operator might swing the boom too close to the power lines. The operator had raised the load and placed it on the flat bed without any difficulty. He was in the process of returning the boom to its original position. It was reasonable for Sasser to assume that the return path of the boom would be the same. Moreover, although Sasser's employees gave hand signals and directions to the crane operator, these signals and directions were given for the sole purpose of centering the generator on the trailer. The evidence does not establish that this participation by Sasser's employees had any impact upon the crane operator's ability to maintain sufficient clearance from the power lines or that Sasser could have foreseen the violation as a result of its employees' actions. Accordingly, for the above reasons we conclude that Sasser did not violate the Act. The judge's decision vacating the citation is affirmed. FOR THE COMMISSION RAY H. DARLING, JR. EXECUTIVE SECRETARY DATED: JUL 20 1984 CLEARY, Commissioner, dissenting: I dissent. I see no basis whatsoever for concluding that this Respondent didn't violate the standard as alleged. The majority would absolve Sasser from responsibility basically because Sasser did not have actual knowledge of the alleged violation, nor could it have known with the exercise of reasonable diligence. They also urge that Sasser was justified in relying on the judgment of the crane operator. In my opinion, the obvious and serious nature of the power line hazards and the extensive involvement of Sasser's employees in the hazardous work mandate the conclusion that Sasser should have anticipated the possibility of an accident almost exactly as it occurred, and should have taken certain obvious measures to protect its employees. The essential facts are that power lines carrying 7200 volts ran in plain sight across Sasser's worksite. The company ordered cranes from time to time to move generators on which it worked, and its employees assisted and controlled the operations. On this occasion, Sasser realized that there was a potential for contact between the crane and the power lines; its chief electrician testified that company officials discussed the need to watch out for the problem before the generator was lifted. Its employees were also aware of the problem and warned the crane operator about it earlier on the day of the accident. However, at no time did the employees receive any information about required clearances from the power lines. The company's chief electrician played the leading role in creating the hazard on the day of the accident by parking the trailer, on which an 18,000-pound generator was to be placed, in a position where the rear portion of the trailer was under the power lines. If one were going to choreograph an accident, he could hardly improve on this scenario. The lines, which were between 12 and 24 feet high, ran approximately east-west and passed over the last five or six feet of the trailer's rear end, which faced approximately south. Because of the trailer's position, it was unavoidable that the crane would operate near the lines in order to place the generator on the trailer. The generator was hauled from the shop to a place about 12 to 15 feet west of the trailer for loading. At that point, the generator was only 6 to 10 feet north of a point on the ground directly under the power lines. The first crane was unable to lift the generator, so a larger crane was ordered. When the larger crane arrived about 5:30 or 6:00 p.m., it was set north of the generator and west of the trailer.[[1]] The already dangerous scene was compounded because visibility was severely curtailed at that time due to darkness, light snow and rain, and the power lines were hardly visible to the crane operator. Sasser employees attached the generator to the crane's cable with 12-foot choker cables. At that point the cable came within 12 to 17 feet of the power lines. The crane lifted the generator, swung it onto the trailer with a Sasser employee steadying it, and then the operator lowered (and thus extended) the crane's boom in order to center the generator on the trailer. Sasser employees told the operator where to set the generator by signals and by voice. When the generator was centered, the cable came within approximately 15 feet of the power lines. Sasser employees then told the operator to let down the cable and they removed the choker cables from the generator. Two Sasser employees held the choker cables, which were still attached to the crane's cable, while the crane swung back toward the power lines. The fatal contact ensued. From these facts, the majority concludes that Sasser exercised reasonable diligence, and should not be held accountable for the crane boom coming within 10 feet of the power lines. II Possibly in some circumstances an employer that hires an outside specialist might be justified in placing a reasonable degree of reliance in that specialist to do the work safely. However, the hiring of an outside specialist does not relieve an employer of the duty to exercise reasonable diligence to discover and correct hazards to which its own employees may be exposed, particularly when the specialist performs a mechanical function, and does not direct or control the operation. It is well settled that an employer cannot contract away its responsibility for compliance with OSHA obligations. E.g., Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1198 n.13, 1975-76 CCH OSHD ¶ 20,690, p. 24,783 n.13 (No. 3694, 1976); PBR, Inc. v. Secretary of Labor, 643 F.2d 890 (1st Cir. 1981); Central of Georgia R. Co. v. OSAHRC, 576 F.2d 620 (5th Cir. 1978); Dun-Par Engineered Form Co. v. Marshall, 676 F.2d 1333 (10th Cir. 1982). In this case, the majority would say that Sasser surrendered its safety responsibilities to a crane operator, even though Sasser assigned its own employees to give directions and work as an integral part of the operation. To permit this abdication of concern for one's own employees is inconsistent with the consensus of Commission and court cases, which is that employers are responsible for making reasonable efforts to discover and correct hazards to which their employees are exposed (even when working with outside specialists). E.g., Anning-Johnson Co., supra; DeTrae Enterprises, Inc. v. Secretary of Labor, 645 F.2d 103 (2d Cir. 1981); Central of Georgia R. Co. v. OSAHRC, supra; Zemon Concrete Corp. v. OSAHRC, 683 F.2d 176 (7th Cir. 1982); Bratton Corp. v. OSAHRC, 590 F.2d 273 (8th Cir. 1979); Beatty Equipment Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978); Dun-Par Engineered Form Co. v. Marshall, supra. Although most of those cases involved construction sites, the same principles have been applied to non-construction sites. E.g., Harvey Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1979 CCH OSHD ¶ 23,830 (No. 76-1408, 1979); Central of Georgia R. Co. v. OSAHRC, supra. The Commission has long held that the duty to exercise reasonable diligence requires an employer to inspect the work area to determine what hazards exist or may arise during the work before permitting employees to work in an area, and to give specific and appropriate instructions to prevent exposure to unsafe conditions. E.g., Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1980 CCH OSHD ¶ 24,495 (No. 76-5089, 1980); see Little Beaver Creek Ranches, Inc., 82 OSAHRC 36/A2, 10 BNA OSHC 1806, 1982 CCH OSHD ¶ 26,125 (No. 77-2096, 1982); Ames Crane & Rental Service, Inc. v. Dunlop, 532 F.2d 123 (8th Cir. 1976); Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975); REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974); National Realty & Construction Co. v. OSAHRC, 489 F.2d 1257, 1266-67 n.37 (D.C. Cir. 1973). Sasser's responsibility here is even more pronounced. Sasser had to be aware of power lines running over its own facility, and it had to be aware that operation of cranes close to power lines was a serious hazard. Yet, it controlled the placement of the trailer under the power lines. One could hardly overstate the obvious character and dangerous potential of this situation, and one can hardly overlook Sasser's responsibility for this accident. Sasser was in the business of manufacturing generators, and must therefore have familiarity with moving heavy machinery out of its yard. It must have been thoroughly familiar with loading procedures. It controlled the loading of this generator. While the generator could have been loaded without coming within 10 feet of the lines, it is obvious that part of the crane or load also could have come within 10 feet of the lines, as it did. Sasser owned the trailer, and presumably owned a tractor to move it. All Sasser had to do to defuse this situation was to move the trailer. Yet, the majority would find that responsibility for this hazardous situation was that of a crane operator, and/or that Sasser couldn't have known of this violation with the exercise of reasonable diligence. I dissent. ------------------------------------------------------------------------ The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386). FOOTNOTES: [[1]] § 1910.180 Crawler locomotive and truck cranes. (j) Operating near electric power lines -- (1) Clearances. Except where the electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers not a part of or an attachment to the crane have been erected to prevent physical contact with the lines, cranes shall be operated proximate to, under, over, by, or near 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]] The worksite operates under the name of Sasser Service, but is part of Sasser Electric & Manufacturing Co. ("Sasser"). [[3]] The judge did not credit the crane operator's testimony that the boom was not moving when the contact took place. He found that the boom was moving from the crane operator's left to right, based on the testimony of two Sasser employees. [[4]] We do not consider an employer's duty when its own employees are not exposed to the hazard or when it is engaged in work at a multi-employer worksite, but limit our concern to the situation here under review. [[5]] State Moving-Trucking, Inc., 82 OSAHRC 67/C9, 10 BNA OSHC 2216, 1982 CCH OSHD ¶ 26,325 (No. 77-1971, 1982), involved a different situation. The employer, State, although lacking experience, contracted to perform a project involving dismantling a derrick, thus holding itself out as qualified for the work. No one that State hired to carry out the work had expertise in dismantling derricks or even asserted that they did. Thus, in that case there was no reasonable reliance on an independent expert to protect against hazards associated with dismantling derricks. In this case, Sasser placed a reasonable and natural reliance on an experienced independent contractor to protect against hazards which were properly under the control of that contractor and which concerned the contractor's, rather than Sasser's, experience. [[6]] Although one employee testified that the operator did not appear experienced with the larger crane and that the operator told him he wasn't very familiar with it, the same employee testified he did not observe the operator make any mistakes before the accident occurred. The judge found the operator "generally familiar" with rigger cranes. Moreover, although the operator testified that he had not previously operated the "particular crane" at issue here, he also stated that there was very little difference in the controls between this crane and one he had operated. See Amoco Texas Refining Co., 83 OSAHRC 15/A2, 11 BNA OSHC 1269, 1983 CCH OSHD ¶ 26,476 (No. 79-5292, 1983). There, the Commission found insufficient evidence that the employer's crane operator was unqualified to operate a long boom crane where the operation of that crane was similar to that of another smaller long boom crane which the operator was qualified to run, and no evidence was introduced showing in what way the operator's training or experience was inadequate. [[1]] When the large crane was delivered to the worksite, Sasser's chief electrician noted that the crane operator did not appear experienced with it, and the operator admitted he wasn't familiar with it. Sasser employees showed him what they knew about the crane.