“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1393 H. B. ZACHRY COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 31, 1980DECISIONBEFORE CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? A decisionof Judge James A. Cronin is before the Commission pursuant to a direction forreview issued by former Commissioner Moran under section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). At issue is an allegedserious violation of the Act for failure to comply with the standard at 29C.F.R. ? 1926.550(a)(15)(1)[2] which requires thatequipment or machines operated in proximity to certain power lines maintain a10 foot clearance from the power lines. Judge Cronin concluded that respondentviolated the Act and assessed a penalty of $700.??????????? Onreview, respondent raises the following issues:??????????? 1.Whether Judge Cronin erred in allowing the Secretary to amend his complaint toallege an ?inspection and investigation? rather than an ?inspection? and inadmitting 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 aload; and??????????? 3.Whether the judge erred in finding a violation of the standard becauserespondent maintained an adequate safety program and the accident resultedsolely from the crane operator?s negligence, of which respondent had noknowledge.I??????????? OnFebruary 11, 1976, respondent?s crane operator, Kitchens, was told by hissupervisor to move a load of pipe from a storage area to an excavation.Energized electrical lines were located between the storage area and theexcavation. These lines were approximately 28 feet above the ground. Kitchensused a Grove mobile crane, or ?cherry picker?, to move the pipe. The crane hada 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 themoving operation, the jib touched the energized power lines, resulting in thedeath of Tobias and the hospitalization of Fraga.??????????? Theevidence indicates that Kitchens had previously driven the crane under the samepower 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 underthe power lines and not come within 10 feet of those lines. Respondent?sassistant safety director stated that when the boom was horizontal, it was 11feet 3 inches from the ground and the jib was 5 feet from the ground. Kitchensstated that it would have been possible to carry the pipe while the boom was ina horizontal position.??????????? Kitchensfurther testified that he had previously been told to avoid power lines,including the particular lines involved here, and was aware that the boom ofthe crane must be kept 10 feet from energized lines. However, he stated that hecould not recall specific instructions concerning the power lines being givenon the day of the accident and that the operation of the crane was left ?moreof less to my discretion?. Although a supervisor had been present when the loadwas attached to the crane, and a supervisor had at previous times directed theoperation of the crane, no supervisor directed the movement of the crane on theday of the accident. In addition, at times a helper would give Kitchens handsignals to indicate that he was close to power lines, but this procedure wasnot followed on the day of the accident.II??????????? Thecomplaint issued by the Secretary alleged that an inspection had been conductedon February 11 through 20, 1976. Respondent, in its response to the Secretary?srequest for admissions, asserted that evidence regarding the events of February11, the day of the fatal accident, was irrelevant because the Secretary did notbegin his inspection until February 12. At the hearing, the Secretary sought toamend the complaint to allege that the compliance officer had conducted an?inspection and investigation? on February 12. Respondent objected to theamendment, claiming prejudice. Respondent?s counsel asserted that an?investigation? is only meant to determine whether criminal penalties should besought against an employer for a willful violation of the Act, relying onprovisions in the Secretary?s Field Operations Manual.??????????? Uponquestioning by Judge Cronin, respondent?s counsel admitted that respondent?srepresentatives were aware that the compliance officer was at the site toinvestigate the events of February 11, and were not surprised by the issuanceof a citation alleging a violation of the Act. Judge Cronin granted theamendment and allowed evidence to be admitted relating to the events ofFebruary 11, subject to respondent?s continuing objection to the admissibilityof that evidence. In his decision, Judge Cronin reaffirmed his ruling at thehearing that evidence of the events that occurred on February 11 wasadmissible.??????????? Inrejecting respondent?s contention that it was prejudiced by the amendment ofthe complaint to allege an ?inspection and investigation? rather than simply an?inspection?, the judge first noted that respondent had not been surprised bythe issuance of a citation based on the events of February 11. He stated thatrespondent had fully cooperated in the investigation and found that theamendment 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 Croninnoted that adoption of respondent?s reasoning would ?seriously undercut? theenforcement scheme of the Act and that section 9(a) of the Act specificallyprovides for the issuance of citations following an ?investigation?.[3]??????????? Weagree with the judge?s reasoning allowing the amendment and admitting theevidence concerning the fatality. The judge correctly concluded that respondentfailed to demonstrate how it was prejudiced by the amendment of the complaintto allege an investigation as well as an inspection. Respondent?s argumentconcerning the effect of the Secretary?s Field Operations Manual was properlyrejected. 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 theField Operations Manual in an internal manual containing only guidelines forthe exercise of the Secretary?s enforcement responsibilities. We stated thatthe manual does ?not have the force and effect of law, nor does it accordimportant procedural and substantive rights to individuals.? Id. In thecircumstances here, section 9(a) of the Act authorizing the issuance of acitation following an ?inspection or investigation? is controlling. Theissuance of the involved citation based on the circumstances learned during theinspection and investigation was proper.III??????????? BeforeJudge Cronin, respondent contended that section 1926.550(a)(15)(i) does notapply to mobile cranes or mobile cranes in transit with a load. In rejectingrespondent?s argument, the judge reasoned that section 1926.550(a)(15) appliesto all cranes and crane operations, including the one at issue here, becausethe standard on its face applies generally to the operation of ?equipment ormachines.? He noted that the standard?s objective is to avoid electrical shockby eliminating the possibility of machines and equipment coming into contactwith energized wires. To exclude the mobile crane from coverage, stated thejudge, ?would create an anomaly and exclude from coverage a type of crane whichis in constant use in the construction and other industries.???????????? Thejudge rejected respondent?s assertion that the rationale of Diamond RoofingCo. v. OSHRC, 528 F.2d 645 (5th Cir. 1976), applies and is controllinghere. The judge stated that Diamond Roofingstands for the proposition that wheneverterms conveying distinct meanings are employed together in one section of astandard 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 samesubpart will be construed as an intent to exclude the omitted term.???????????? Inthe standard involved in the present case, however, the judge found that theterm ?equipment or machines? is a ?general or inclusive term? that encompassesthe more specific term ?mobile crane.? Therefore, the judge concluded that theuse 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 cranesis clear.??????????? Forsimilar reasons the judge rejected respondent?s argument that section1926.550(a)(15)(iii) is the only standard applicable to mobile cranes intransit.[4] Respondent contended thatsince that standard specifically applies to equipment in transit with no loadand with boom lowered, no standard applies to the circumstances here, i.e., amobile crane in transit with a load. The judge again noted that section1926.550(a)(15) on its face applies to the ?operation of equipment or machines?without qualification. He found that reading the cited standard to includecoverage of mobile cranes in transit with loads is consistent with both thestandard?s terms and its purpose.??????????? Onreview, respondent raises the same arguments concerning the applicability ofsection 1926.550(a)(15)(i) to mobile cranes that it raised before the judge. Weadopt the judge?s findings and for the reasons assigned by him conclude thatthe standard at 29 C.F.R. ? 1926.550(a)(15)(i) applies to the operation beingperformed by respondent?s mobile crane at the time of the violation in issue. GulfOil Co., 77 OSAHRC 216\/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ?\u00a022,737(No. 14281, 1977).IV??????????? Thejudge found respondent in violation of the Act. While the Judge found that thecrane operator?s negligence was the primary cause of the violation, he alsofound that the failure of respondent?s supervisor to follow respondent?s rulerequiring the assignment of a flagman to direct the crane operator under theenergized lines contributed to the violation. The judge further reasoned thatbecause respondent?s supervisor and the crane operator had knowledge of thework conditions necessitating compliance with the cited standard, i.e., thatpipe was to be transported by crane under energized wires, their failure tomaintain compliance with the standard was properly imputed to respondent.??????????? Onreview respondent contends that the judge erred in holding it responsible forthe violation. Respondent argues that it had done all that could reasonably beexpected to prevent the violation and that it could not have known that thecrane operator would fail to comply with the standard. Respondent furtherargues that the judge?s reliance on the failure to assign a flag person wasimproper. For the reasons that follow, we affirm the judge?s conclusion thatrespondent violated the Act for failure to comply with the standard at 29C.F.R. ? 1926.550(a)(15)(i).??????????? Inorder to establish the affirmative defense of unpreventable employeemisconduct, an employer must show that the action of its employee was adeparture from a uniformly and effectively communicated and enforced work rule.Everglades Sugar Refinery, Inc., OSAHRC, 7 BNA OSHC 1410, 1979 OSHDpara. 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-GMaintenance Management, 76 OSAHRC 60\/A2, 4 BNA OSHC 1282, 1976?77 OSHDpara. 20,744 (No. 4713, 1976). The evidence establishes that respondent had aformal safety program that included holding safety meetings and distributingsafety manuals and materials to its employees. As part of its safety program,respondent had a work rule requiring the crane operator to maintain a minimumdistance of 10 feet from energized overhead wires as well as a rule requiringthe assignment of a flag person to assist cranes moving over job sites. Themere establishment of work rules, however, is not sufficient to avoidresponsibility for a violation. The rules must also be effectively communicatedand enforced. Id. Without effective communication and enforcement ofwork rules, the protections sought by the standard and the work rule can not beachieved.??????????? Therecord in the present case does not establish effective communication andenforcement of respondent?s work rules. Although respondent had a program ofsafety meetings and distribution of materials, the evidence concerning theactual implementation of this program is conflicting. Respondent?s safetydirector testified that there were weekly safety meetings. The crane operator?ssupervisor, on the other hand, stated that these meetings were skipped everyother week. In addition, the crane operator testified that even when he did notattend safety meetings he would sign a roster indicating that he had been inattendance. For example, although the safety director stated that a film oncrane 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 statedthat it was possible that this meeting had not been held. Furthermore, contraryto respondent?s assertion, the record supports the judge?s finding thatrespondent failed to observe its own rule requiring assignment of a flag personto assist cranes in moving over job sites. When asked whether a signal personassisted him in the pipe moving operation, the crane operator testified thatthe only employees involved were himself and the two employees steadying thepipe. Therefore, the judge properly considered respondent?s failure to abide byits own safety rule in determining its responsibility for the violation atissue. Cf. Springfield Steel Erectors, Inc., 78 OSAHRC 7\/A4, 6 BNA OSHC1313, 1977?78 OSHD para. 22,498 (No. 15388, 1978).[5] For these reasons, we holdthat respondent did not establish that the failure to comply with the citedstandard was contrary to a uniformly and effectively communicated and enforcedwork rule.??????????? Weaffirm the judge?s conclusion that respondent is responsible for the violation.As to the appropriate penalty, we affirm the judge?s findings regardingrespondent?s size, the grave nature of the hazard, the number of employeesexposed to the hazard, the lack of a significant history of violations, andrespondent?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 SECRETARYDATED: JAN 31, 1980\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1393 H. B. ZACHRY COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 26, 1976DECISION AND ORDERAppearances:For Complainant Ronald M. Gaswirth,Regional SolicitorArnold S. Battise, Esq.Office of the SolicitorU. S. Department of Labor555 Griffin Square BuildingDallas, Texas 75202\u00a0For Respondent Robert W. Wachsmuth,EsquireJohnson, Johnston, Sox & Wachsmuth1708 Tower Life BuildingSan Antonio, Texas 78205\u00a0CRONIN, JUDGE, OSHRC:??????????? Thisis a proceeding under section 10 of the Occupational Safety and Health Act of1970 (29 U.S.C. 651 et seq., hereinafter called the Act) involving an?inspection and investigation? of a respondent worksite 9 miles north ofPawnee, Oklahoma, conducted February 12 through February 20, 1976.[6] A citation, alleging a?SERIOUS? violation of 29 C.F.R. ?\u00a01926.550(a)(15)(i), and a notificationproposing a penalty of $700.00, were issued to respondent by complainant onFebruary 27, 1976.??????????? Thealleged violation of ? 1926.550(a)(15)(i) was described in the citation asfollows:A minimum clearance of 10 feet was notmaintained between the electrical distribution and transmission lines rated upto 50 KV and any part of the crane or load, where the electrical distributionand transmission lines were not deenergized nor visibly grounded at the pointof work or insulating barriers, not a part of or an attachment to the equipmentor machinery, were not erected or installed to prevent physical contact withthe lines, which resulted in a hazard of electrical shock in the followinglocations: Grove Truck Crane, Model RT 605, serial number 20176 at pumpingstation construction site.?Condition existed on or about February 11,1976.\u00a0??????????? Standard? 1926.550(a)(15) and ? 1926.550(a)(15)(i) as promulgated by the Secretary ofLabor provides:(15) Except where electrical distributionand transmission lines have been deenergized and visibly grounded at point ofwork or where insulating barriers, not a part of or an attachment to theequipment or machinery, have been erected to prevent physical contact with thelines, equipment or machines shall be operated proximate to power lines only inaccordance 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 be10 feet;???????????? Thehearing in this matter took place on July 20, 1976, and both parties filedpost-hearing briefs.Jurisdiction and Issues??????????? Therespondent corporation which maintains offices at San Antonio, Texas, isengaged in business as a general construction contractor and does not contestCommission jurisdiction.??????????? Theissues to be determined are:??????????? 1.Whether evidence relating to the fatal accident of February 11, 1976, wasadmissible???????????? 2.Whether the cited standard applies to mobile cranes? And if so, does it applyto mobile cranes in transit with a load???????????? 3. Ifa violation of the cited standard was committed on February 11, 1976, didrespondent know, or could it have known with the exercise of reasonablediligence, of the presence of this violation?Discussion??????????? 1.Evidence offered to prove a violation on February 11, 1976, was properlyadmitted.??????????? 2. Boththe 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 thecomplaint 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 counselconceded that respondent was aware that the compliance officer?s initialappearance at the worksite, on February 12, 1976, was for the purpose ofinvestigating the fatality which occurred on February 11, 1976, and thatrespondent was not surprised when it received a citation alleging a violationof the Act due to a condition which existed ?on or about February 11, 1976.?[7] Because no showing ofprejudice to respondent?s ability to defend against the charges of the citationwas made, the Secretary?s motion to amend was granted.??????????? Nothingsubsequently appearing of record persuades this Judge that his original rulingwas in error. The evidence establishes that the compliance officer attemptedwithout success to locate the worksite in question on the afternoon of February11, 1976. The next day, February 12th, he conducted an actual on-siteinspection and investigation during the morning and early afternoon. Accordingto his testimony, he continued his investigation of the events of February 11thuntil completed on February 20, 1976 (Tr. 65?66).??????????? Uponarriving at the worksite on February 12th, he informed respondent?s projectsuperintendent and assistant safety director that he was there to make aninvestigation into the February 11th accident to determine its causes andwhether a violation of any standard had been committed. Respondent?ssuperintendent provided the compliance officer with transportation to theaccident site and with copies of employee statements prepared for respondent onFebruary 11th (Tr. 66?67). While at the site on February 12th, the complianceofficer took measurements and photographs relating to the accident andinterviewed respondent?s foreman, Jonhinass Herman.??????????? It isclear from the compliance officer?s testimony that respondent knew the purposeof his visit to the worksite. Respondent cooperated fully and even furnishedsubstantial assistance to his investigative efforts. Also, there is noindication on this record that respondent was hindered in its ability toprepare its defense by the allegation of ?inspection? and the subsequentamendment to ?inspection and investigation.???????????? Althoughimaginative, respondent?s additional arguments that ?inspections? under the Actcan result only in citations based on observations of a compliance officer andthat ?investigations? conducted under the Act cannot form the basis for theissuance of citations also lack merit, and are neither supported by the Act norby Commission precedent. In this regard, it is sufficient to point out theobvious; adoption of respondent?s ?observation? theory would unreasonablyrestrict the number of citations that could be issued and would seriouslyundercut the Congressional intent to provide ?an effective enforcement program?and ?to assure so far as possible, every working man and woman in the nationsafe and healthful working conditions.? (See section 2(b)(1) and 2(b)(10) ofthe Act) Moreover, section 9(a) of the Act provides that a citation ?shall * ** issue? whenever the Secretary, ?upon inspection or investigation? believesthat an employer has violated any standard promulgated pursuant to section 6 ofthe Act. Thus, Respondent?s contention to the contrary, the issuance ofcitations 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.??????????? Inits defense on the merits, respondent first argues that the cited standard doesnot apply to mobile cranes or, ?in any event,? to mobile cranes in transit witha load. This Judge disagrees with both contentions.??????????? SubpartN is entitled ?Cranes, Derricks, Hoists, Elevators, and Conveyors?[8] and ?\u00a01926.550, asection thereunder, is entitled ?Cranes and Derricks? and divided into sixsubsections:(a) General requirements?(b) Crawler, locomotive and truck cranes?(c) Hammerhead tower cranes?(d) Overhead and gravity cranes?(e) Derricks?(f) Floating cranes and derricks.???????????? Areading of the provisions of subpart (a) General Requirements persuades thisJudge that ? 1926.550(a)(15)(i) obviously was intended to apply to alloperating cranes with loads and their associated equipment, including cranes intransit with a load.???????????? Theintroductory portion of the standard in question, ? 1926.550(a)(15), does notrecognize different types of cranes or derricks; it merely references?equipment or machines? without defining these inclusive terms and thenprescribes that they ?shall be operated proximate to power lines only inaccordance with the following:? The subsections following then describe, amongother things, the various minimum clearances that must be maintained betweenany part of the ?crane? or its load and electrical distribution andtransmission lines under certain well-defined circumstances.??????????? Theobjective of this standard, of course, is plain? to eliminate the possibilityof machines and equipment of cranes and derricks coming into electrical contactwith energized lines which could result in electrical shock and electrocutionhazards. Also, the express terms of the standard give to owners of all cranesoperating in proximity to energized power lines fair warning of the conduct itprohibits or requires. To accept respondent?s interpretation of the standard?sapplicability would create an anomaly and exclude from coverage a type of cranewhich is in constant use in the construction and other industries.??????????? Respondent?sprimary reliance on Diamond Roofing v. Occupational S. & H. Com?n,528 F.2d 645 (5th Cir. 1976), for support of its contention that this standardis inapplicable to mobile cranes or any cranes in transit with a load ismisplaced. That case stands for the proposition that whenever terms conveyingdistinct meanings are employed together in one section of a standard todescribe conditions to be covered by the standard?s requirements, the inclusionof one such term and not the other in another place of the same subpart will beconstrued as an intent to exclude the omitted term. There, the Fifth CircuitCourt 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? werespecifically defined at another point in the subpart to include an opening anda 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 applyingto ?opensided roofs.???????????? Here,however, the term ?equipment or machines? is a general or inclusive termappearing in a subsection entitled ?General Requirements? under a sectionentitled ?Cranes and Derricks.? The term ?equipment or machines? encompassesthe more specific term ?mobile cranes,? and its use certainly does not convey ameaning distinct from mobile cranes. Therefore, when read in context, theapplicability of ? 1926.550(a)(15)(i) to all cranes and derricks includingmobile cranes appears clear.??????????? Inresponse to respondent?s contention that the cited standard does not apply toany 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 operatedproximate to power lines only in accordance with the following:? [emphasissupplied] and then follows with a standard which prescribes requirements formovement of such equipment or machines ?in transit with no load and boomlowered.? (See ? 1926.550(a)(15)(iii).) The implication of this latterrequirement is obvious?the term ?operated? in ? 1926.550(a) conveys a muchbroader meaning than the respondent has chosen to give it. Its meaning is notlimited to situations where a crane is in a stationary position and the boom issupporting a load, but rather, also covers conditions where a crane or derrickand associated equipment are in transit with or without a load. Thisinterpretation 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 respondentwas in violation of the cited standard on February 11, 1976.??????????? Theburden of proof with respect to all elements of a violation of a safety orhealth standard rests with the Secretary of Labor. Brennan v. OSAHRC andRaymond Hendrix, d\/b\/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975).??????????? Toestablish a prima facie violation of ? 1926.550(a)(15)(i), the complainant mustestablish the applicability of the standard to the existing condition, andprove non-compliance with the standard?s prescribed requirements, the potentialor actual employee exposure to the violative condition, and either theemployer?s actual or constructive knowledge of the conditions constituting theviolation or the means of knowledge of other conditions likely to produce orcontribute to the violation.??????????? Inthis case, it is undisputed that the crane?s jib made contact with theenergized lines resulting in the death of one respondent employee and seriousinjury to another. Respondent, however, argues that the accident of February11, 1976, resulted ?solely? from its crane operator?s negligence and respondentdid not know and could not have foreseen its employee?s negligence.??????????? Acorporate employer, of course, can only operate through its agents and,therefore, its absolute and continuing duty to ?comply with occupational safetyand health standards promulgated under this Act? (section 5(a)(2) of the Act)necessarily has to be delegated either to supervisory personnel or otheremployees. This delegation, however, cannot be permitted to relieve thecorporate employer of its duty to comply with a particular standard; otherwise,the effectiveness of safety standards would be nullified and the manifestlegislative intent of the Act defeated. If a corporate employer entrusts itspersonnel with the performance of activities which foreseeably will requirecompliance with particular safety and health standards, the employer continuesto be responsible for the failure of those employees for reasons of negligenceto comply with that standard irrespective of whether the employees aresupervisors or ordinary employees. This principle is clearly consistent withthe Congressional intent to impose on employers ?final responsibility? forcompliance with the Act (See S. Report No. 91?1282, 91st Cong. 2d Session pp.10?11).??????????? Therespondent, through its construction foreman Jonhinass Herman, had assigned thetask of transporting the pipe from the storage area to the dam excavation areato its crane operator, Raymond Kitchens. In order to reach the excavation, itwas necessary for the crane and its load to go underneath the electricaltransmission lines crossing the worksite. Under the existing circumstances, itwould be obvious to any reasonable prudent employer that the mobile crane wouldbe operating in the vicinity of these energized lines, that a real danger ofcontact existed, and that compliance with a standard governing minimumclearances would be required.??????????? Unquestionably,the negligent actions of respondent?s crane operator were primarily responsiblefor the failure to maintain the prescribed distance between the crane jib andthe energized lines and the resulting death and injury to other respondentemployees. Additionally, however, Mr. Herman, respondent?s supervisor of craneoperations on February 11th, also contributed to the violation due to hisfailure to assign a ?flag person? to walk ahead of the crane boom to preventcontact with the overhead lines in contravention of respondent?s instruction toits crane supervisors (See respondent?s Exhibit B, rule 16). Publication of theinstruction establishes respondent?s recognition that this procedure lessensthe chance of contact with energized lines.??????????? Inthis Judge?s view, the Secretary fulfilled his burden of establishing ?employerknowledge? of this violation when he proved that respondent?s supervisorypersonnel and crane operator had knowledge of the conditions which conceivablycould lead to non-compliance with the standard and their failure to maintain areasonable standard of care in regard to these conditions.??????????? Becausethe respondent here assigned its crane supervisor and operator the task ofcarrying out duties requiring compliance with the standard in question, theircombined negligent actions resulting in exposure of other respondent employeesto the violative condition will be imputed to the respondent. Application ofsuch a principle will encourage employers to assign their complianceresponsibilities to the most competent employees and maintain all necessarysupervision of their employees; both methods will tend to reduce the likelihoodof 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.??????????? Allrecord evidence relating to the four factors prescribed by section 17(j) of theAct in assessing penalties, the size of respondent?s business, its good faith,gravity of the violation, and history of prior violations under the Act havebeen considered.??????????? As ofFebruary 11, 1976, respondent employed approximately 199 employees at theworksite. Although nine previous inspections of respondent construction siteshave been conducted by the Secretary, the hearing record discloses only that?[t]here have been citations and violations apparently found at these othersites * * *.? This evidence is considered insufficient to find that respondenthas a significantly adverse past history of violations under the Act.Respondent has an extensive safety program for its employees and the complianceofficer was of the opinion that respondent ?has made a very good faith effortin trying to comply with the Act.???????????? Thesevere gravity of the violation, of course, was made clear by the death andhospitalization of respondent?s employees.??????????? Basedon the foregoing, the proposed penalty of $700.00 is considered appropriate andwill encourage respondent to impress on its supervisors and employees thenecessity of using all reasonable care when their duties require compliancewith specific provisions of the Act.Findings of Fact??????????? Basedon the credible evidence of record, the following facts are found; any proposedfindings of fact submitted by the parties inconsistent therewith are denied:??????????? 1. OnFebruary 11, 1976, respondent was engaged in construction work at the SoonerDam and power plant project located approximately eleven miles west and ninemiles north of Pawnee, Oklahoma. Respondent had about 199 employees working atthis site (Complaint?s request for admission No. 1 and respondent?s response;Tr. 77).??????????? 2. Atthe worksite, electrical distribution lines were in place on poles which wereapproximately 35 feet in height above the ground, located approximately 300feet apart, and running generally in an east-west direction.??????????? 3.These electrical distribution lines carried 7200 volts of electricity and werestrung 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. OnFebruary 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 taskof 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 interrogatoryNo. 1.(b)). No instructions were given to the crane operator concerning how hewas to carry the pipe (Tr. 14) and there is no indication that the supervisorassigned a flag person to walk ahead of the crane boom to prevent contact withthe overhead lines.??????????? 5.Cables were wrapped around six or seven 20-foot lengths of six inch steel pipeand then attached to the hook on the boom of the crane. The load weighedapproximately 1500 to 2000 pounds. The length of the boom with its jib wasapproximately 48 to 50 feet. After the load of pipe was attached and positionedfor 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 hisimmediate supervisor, Herman, and required by the conditions and layout of theconstruction site (Respondent?s answer to interrogatory No. 3 and 4). Thisroute would take the crane underneath the energized distribution lines whichwere approximately 100 feet from the pipe storage area (Respondent?s answer tointerrogatory No. 1(a)).??????????? 7.Crane operator Kitchens did follow such route on February 11th and theunderside of the jib contacted the power lines at a point approximately 28 feetabove the ground, immediately killing Mr. Tobias and seriously injuring Mr.Traga. At the time of the accident, both employees were engaged in holding thepipe steady (Tr. 19?19).??????????? 8.John Cofield, respondent?s project manager, saw the accident at the time ithappened and immediately ran toward the crane yelling for Kitchens to ?backoff, back off.? Kitchens immediately backed off (Tr. 19).??????????? 9.Mr. Kitchens is an experienced crane operator, has performed similar ?pick andcarry? operations ?hundreds of times,? and ?[q]uite frequently? has passedbeneath energized power lines (Tr. 27, 47).??????????? 10.Prior to February 11, 1976, Mr. Kitchens had operated the particular crane ingoing under these particular electrical distribution lines approximately 10 or12 times (Tr. 27?28).??????????? 11.On February 11, 1976, it was physically possible for Mr. Kitchens to haveoperated the crane underneath the power lines with the load and still maintainmore than a ten-foot clearance from the lines if the cables supporting the loadhad been shortened (Tr. 36?37).??????????? 12.Respondent has a formal and extensive safety program which includes a customaryprocedure for the publication and dissemination of numerous safety manuals toits 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 Aentitled ?Crane Safety Operator Rules,? a copy of Exhibit D?1 entitled ?SafetyRules for Employees,? and a copy of Exhibit D?4 entitled ?Construction SafePractices and Basic Safety Regulations? from respondent (Tr. 35?36, 42, 264?265).??????????? 14.Exhibit B, entitled ?Crane Safety, Supervisor Rules,? is published byrespondent and customarily distributed to supervisory employees. Rule 16provides as follows:When moving cranes over job site a flagperson is to walk ahead of crane boom to prevent collision with other equipmentor contact with overhead lines. A flag person is to check the ground over whichcrane will move. Boom is to be kept low when traveling on unstable ground.\u00a0??????????? 15.The crane operator, Kitchens, attended at least thirty-five safety meetingsheld by respondent in 1975, and ?quite a few? of these meetings dealt withinstruction to avoid electrical distribution lines (Tr. 27). Mr. Kitchens hadbeen given specific warnings about the particular power line ?quite a fewtimes? prior to February 11, 1976 (Tr. 32?33, 235?236) and was familiar withthe requirement of operating a crane no closer than 10 feet from an energizedpower line (Tr. 35?36).??????????? 16.The warning sign depicted in Respondent?s Exhibit I(3) was painted on theinside and outside of the operator?s cab door on the particular crane inquestion (Tr. 192?193). These signs read as follows:DANGER, KEEP EQUIPMENT TEN FEET FROM POWERLINES OR OBSERVE STATE MINIMUM CLEARANCE.\u00a0??????????? 17.The two laborers or helpers, who were assisting the crane operator on February11, 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 February11, 1976, was primarily due to the failure of respondent?s crane operator touse all reasonable care under the existing conditions.??????????? 19.The crane supervisor?s failure to assign a flag person to prevent contact withthe energized lines also contributed to the accident.??????????? 20.As a result of the crane?s contact with the energized lines, a respondentemployee was electrocuted and another respondent employee was seriously injuredresulting in hospitalization.??????????? 21.If any part of a crane contacts an energized electrical distribution ortransmission line, there is a substantial probability that death or seriousphysical harm will result.Conclusions of Law??????????? 1.Respondent is an employer engaged in a business affecting commerce within themeaning of 29 U.S.C. ? 652(5).??????????? 2.The requirements of standard 28 C.F.R. ? 1926.550(a)(15)(i) are applicable tomobile cranes in transit with a load.??????????? 3. OnFebruary 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 29U.S.C. ? 666(j).??????????? 4. Apenalty of $700.00 for respondent?s violation of 29 C.F.R. ? 1926.550(a)(15)(i)is appropriate.ORDER??????????? Basedon the foregoing findings, conclusions of law, and the entire record, it isORDERED.??????????? TheCitation dated February 27, 1976, as amended, is AFFIRMED, and a $700.00 penaltyASSESSED.?James A. Cronin, Jr.Judge, OSHRCDated: October 26, 1976\u00a0\u00a0[1] 29 U.S.C. ?661(i). The direction for review was issued ?for error? and did not specifyissues to be considered by the Commission. Respondent filed a petition fordiscretionary review and a brief on review. The Secretary did not file a briefon review. Therefore, the issues on review are those raised by respondent.[2] The standardprovides:? 1926.550 Cranes and derricks.(a)General requirements.(15)Except where electrical distribution and transmission lines have beendeenergized 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 erectedto prevent physical contact with the lines, equipment or machines shall beoperated proximate to power lines only in accordance with the following:(i)For lines rated 50 kV. or below, minimum clearance between the lines and anypart of the crane or load shall be 10 feet.[3] Section 9(a) ofthe Act, 29 U.S.C. ? 658(a), provides in part:CitationsSec.9.(a) If, upon inspection or investigation, the Secretary or his authorizedrepresentative believes that an employer has violated a requirement of Section5 of this Act, of any standard, rule or order promulgated pursuant to Section 6of this Act, or of any regulations prescribed pursuant to this Act, he shallwith reasonable promptness issue a citation to the employer . . ..[4] The standardprovides:?1926.550 Cranes and derricks.(a)General requirements.(15)(iii)In transit with no load and boom lowered, the equipment clearance shall be aminimum of 4 feet for voltages less than 50 KV., and 10 feet for voltages over50 KV. up to and including 345 KV., and 16 feet for voltages up to andincluding 750 KV.[5] Althoughrespondent correctly asserts that it was not cited for failure to comply withthe standard at 29 C.F.R. ? 1926.550(a)(15)(iv), requiring an observer, thefact that a flag person was not assigned is evidence of the inadequacy ofrespondent?s safety program.[6] Citation andcomplaint initially alleged an ?inspection?. At the outset of the hearing, thecomplaint was amended over objection by respondent to allege ?inspection andinvestigation? (Tr. 5).[7] ? IV of thecomplaint more specifically alleges that the violation took place ?on February11, 1976.?[8] Although notappearing in the subpart?s title, ? 1926.551 entitled, ?Helicopters,? and ?1926.556 entitled, ?Aerial Lifts,? also are included under subpart N.”