“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3433 LIDSTROM, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 30, 1976?DECISION??Before BARNAKO, Chairman; MORAN and CLEARY,Commissioners.CLEARY,Commissioner.Thedecision of Administrative Law Judge Alan M. Wienman in this case has beendirected for review pursuant to section 12(j) of the Occupational Safety andHealth 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 respondentLidstrom, Inc. and assessed a $600 penalty for Lidstrom?s failure to complywith the standard published at 29 CFR ? 1926.550(a)(15)(i) by operating a cranewithin 10 feet of energized power lines.[1]Neither party petitioned for review of the Judge?s decision. Commissioner Moranordered review on his own motion. The issues before us are: (1) whetherrespondent?s crane operator was exposed to a hazard; (2) whether respondent wasthe ?employer? of the crane operator; and (3) whether respondent wasresponsible for the asserted error in judgment by the crane operator.Lidstromis a Wyoming corporation with offices located in Wheatland, Wyoming, where itis engaged in contract construction. Under an oral lease agreement Lidstromsupplied a crane and crane operator to the Gifford-Hill Company for the purposeof moving pipe at a jobsite near Mitchell, Nebraska. Upon the arrival of thecrane operator at the jobsite, Gifford-Hill?s foreman showed him the pipe and whereit was to be placed. The crane operator testified that when he started workinghe observed the power lines near the work area, but after moving the cranetwice, he ?got too close? to them. The crane apparently touched the powerlines, and a Gifford-Hill employee who had been attaching the crane hook to thepipe was electrocuted.Afterthe citation for serious violation was issued to Lidstrom, the partiesstipulated that the crane came within ten feet of the power lines. After ahearing, Judge Wienman found that the crane operator was subjected to thepossibility of electrocution or severe electrical shock and that he had notbeen given adequate instructions concerning unsafe working conditions. TheJudge concluded that Lidstrom had a duty to comply with the Act that was notnegated by its lease agreement with Gifford-Hill.Exposure to the HazardLidstromargues that its crane operator was not exposed to a hazard. The testimony ofthe compliance officer, relied upon by the Judge in finding exposure of the craneoperator, is as follows:Q. Now what hazard,if any, would this situation have represented to any of the respondent?semployees at the time??A. This would dependon the individual reaction of the operator. If there is no oiler with thecrane?and the reason I say that is if the operator stays at his controls in thecab usually he is safe from electrocution. If he has his hand on the cab frameitself, he may be electrocuted. If he tries to jump clear of the crane he maybe electrocuted.?Lidstromcontends that there is no evidence showing that the operator did anything butstay at his controls, and according to the testimony he would ?usually? be safefrom electrocution.Wereject Lidstrom?s argument. It is clear that Lidstrom?s operator was exposed tothe hazard of possible electrocution. Although he ?usually? would be safe, hissafety depended upon his reaction. If he placed his hand on the cab frame hemight have been electrocuted. The restrictive concept of exposure to a hazardadvocated by Lidstrom is not consistent with the essential purpose of the Actof preventing job illnesses and injuries.[2]The Judge?s finding that the crane operator was exposed to the hazard ofelectrocution is affirmed.?Employer?of the Crane OperatorLidstromargues that it was not an ?employer? of the crane operator.[3]It contends that a bailment existed by reason of the lease agreement and thatthe work was under the supervision and control of Gifford-Hill as bailee. TheJudge rejected this contention, holding that an employer?s duty to furnish asafe workplace cannot be avoided by delegation to another. The Secretary seeksaffirmance of the Judge?s ruling.Asimilar 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 andoperator, argued that it was not an employer for purposes of the Act. The Courtand the Commission rejected the argument, and endorsed the Administrative LawJudge?s holding that, where the lessee of a crane relies upon the expertise ofthe crane operator and gives no particular direction as to the operation of thecrane, then it is the duty of the lessor, the actual employer of the craneoperator, to comply with the minimum safety requirements set forth in thestandards. 521 F.2d at 631. Also, typically it is the lessor that is morefamiliar with the equipment and the experience and ability of the operator itfurnishes. Cf. Transamerican Freight Lines, Inc. v. Brado Miller FreightSystems, Inc., 423 U.S. 28, 96 S.Ct. 229 (1975).Here,the Gifford-Hill foreman relied upon the crane operator?s expertise and theforeman did not supervise the operation of the crane. The operator testifiedthat Gifford-Hill?s foreman showed him where the pipe was to be placed and ?leftthe 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 theoperation of the crane in an unsafe manner. Lidstrom?s argument that a bailmentexisted, and it was thereby absolved of liability, is rejected.Actionsof the Crane OperatorLidstrommaintains that it should not be held responsible for an error in judgment bythe crane operator and that an employer cannot be held to the standard of beingan absolute guarantor or to insure that its employees will observe all safetystandards. The Judge rejected this contention, finding that Lidstrom had nosafety program for its crane operators and that it did not issue instructionsfor procedures to be taken upon encountering unsafe conditions. He concludedthat Lidstrom could have avoided the hazard with the exercise of reasonablediligence. On review the Secretary relies on the Judge?s decision.Anemployer is not an insurer under the Act, but he is expected to do what isrealistic to comply with its terms. Hazardous conduct may be consideredpreventable 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 thosehere except that no lease agreement existed. A brick-truck driver was alone ona jobsite, and was electrocuted when he positioned his truck with the boom 8feet under 4800 volt power lines. The court held:[W]hether a seriousviolation of the standard was forseeable with the exercise of reasonablediligence depends in great part on whether Butler?s employees . . . hadreceived adequate safety instructions. If Butler failed to give adequatewarning to its employees of the need to stay at least ten feet away from thepower lines, in accordance with the standard 1910.180(j), then an accidentoccurring because a driver violated the regulation would seem to have beenforseeable.?520 F.2d at 1018.?Herethe crane operator received inadequate safety instructions. Although the craneoperator testified that he had been ?instructed from time to time? about powerline hazards and that it had been ?brought to [his] attention? on differentjobs, Lidstrom?s assistant manager testified:Q. After you went towork for the Respondent, Lidstrom, Incorporated, can you tell me what, if any,safety instructions he [the crane operator] received from the company? Whatsort of safety program or instructional program did Lidstrom have for its craneoperator or operators??A. As a craneoperator alone, nothing. We?ve had several jobs where we?ve had weekly or twoweekly or monthly safety meetings that [the crane operator] had been employedon. We?I suppose we?re negligent in not [having] enough safety meetings atMitchell. But he had been cautioned about high voltage power lines.?Q. Who cautioned himand when, if you know of your own knowledge??A. I don?t know ofmy own knowledge. Just what I heard here today.?Thecrane operator?s judgment was not based on orderly and comprehensive safetytraining given to him as a crane operator but instead was based upon cautionarywarnings that were almost causal. Plainly, more could have been done in the wayof warnings or instructions. We hold that respondent has violated the citedstandard.Lidstromhas 19 employees, and no previous history of violations under the Act. However,the violation is grave. The $600 penalty assessed by the Judge is appropriatepursuant to section 17(j) of the Act.Accordingly,it is ORDERED that the Judge?s decision is affirmed.?FOR THECOMMISSION:?William S.McLaughlinExecutiveSecretaryDated: March 30,1976\u00a0BARNAKO,Chairman, concurring.Iconcur in the disposition and would assign as reason therefor those given bythe Judge in his report. The questions raised by the direction for review wereevidentiary in nature; the Judge weighed the evidence; and it cannot be saidthat 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 thefiling of the Judge?s report in this matter.\u00a0MORAN,Commissioner, Dissenting:Thecritical question in affixing liability here is whether respondent was theemployer of the crane operator at the time of the violation. Although we haveheld that employment relationships are not to be construed according totechnical concepts of the common law, we have recognized that control over aworker is an important consideration in ascertaining such relationships. Secretaryv. Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973), remanded on othergrounds 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 theparamount consideration. However, it is the right of control, not the exerciseof it, that is governing. See Southeast Contractors, Inc. v. Dunlop, 512F.2d 675 (5th Cir. 1975), which adopted the dissenting opinion in Secretaryv. Southeast Contractors, Inc., 8 OSAHRC 285 (1974).Inthis case, the Gifford-Hill Company was in the process of laying pipeline whenit discovered it needed a crane to assist with that work. Gifford-Hill thencontacted respondent about leasing one and respondent assented, sending a craneand an operator to Gifford-Hill?s worksite. The operator was an experiencedworker who knew of the dangers of powerlines and specifically knew of the existenceof the line at Gifford-Hill?s worksite. Upon the operator?s arrival at theworksite, Gifford-Hill?s foreman showed him where the pipelines were to be laidand directed him as to what was to be done. The foreman and anotherGifford-Hill employee signaled the crane operator in the handling of theconcrete pipelines. Apparently neither of them were observing the boom, and thecrane came into contact with the powerline.Relyingon Gifford-Hill?s inadequate supervision as to the operation of the crane, my colleagues?conclude that respondent violated the standard. This conclusion is reacheddespite 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 andcontrol of Gifford-Hill and testified that he was ready to comply with theinstructions of Gifford-Hill?s foreman. Additionally, respondent?s managertestified that he exercised no control or supervision over the operator andthat all such control was in the hands of Gifford-Hill.[4]Under these circumstances, I find it incredible that my colleagues findrespondent liable for the violation.Themajority?s reliance upon Frohlick Crane Service, Inc. v. OSAHRC[5]is misplaced. In affirming the Commission?s decision in the case, the courtconcluded that ?. . . on the facts before it the Commission did not errin determining that Frohlick [the lessor] was [the crane operator?s] employer whenthe standard was violated.?[6]In that case, the lessor did actually retain some control over the crane?soperation. In fact, as shown in Secretary v. Frohlick Crane Service, 9OSAHRC 531, 532 (1974), agents of the lessor had on occasion inspected jobsiteswhere its rented cranes were located and assumed control over the operation ofthe cranes when they determined that hazards existed. Furthermore, since thecrane 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 craneoperator when the violation occurred.[7]When,as here, a respondent has neither exercised control over nor retained the rightto control a ?loaned? employee, and the lessee has full control over him, therespondent is not an employer with respect to that employee. It would be bothunjust and contrary to the intent and purpose of the Act to impose liability ona respondent under such circumstances.CommissionerCleary 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. AsCommissioner Cleary notes in his opinion, the crane operator, who had 20 yearsof experience with cranes, had been advised of the danger of powerlines. Sincehe admitted having this knowledge, I am unable to comprehend how that knowledgecould have been improved upon by ?orderly and comprehensive safety training.?Such a conclusion elevates form over substance and disregards theresponsibility of employees to comply with the Act as required by 29 U.S.C. ?654(b).SinceChairman Barnako relies on Judge Wienman?s decision, the same is attachedhereto as Appendix A in order that the public may know the basis of thisdecision.?APPENDIX A\u00a07\u00a0??????????? \u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3433 LIDSTROM, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 FINAL ORDER DATE: May 10, 1974?DECISION AND ORDER?APPEARANCES:JOHN RENICK, ESQUIRE, Office of theSolicitor United States Department of Labor, Kansas City, Missouri for theSecretary of Labor\u00a0RAYMOND B. HUNKINS, ESQUIRE, Jones,Jones & Hunkins, P. O. Drawer 531 Wheatland, Wyoming for the Respondent?STATEMENT OF THE CASEAlanM. Wienman, Judge, OSAHRC:This is a proceeding pursuant to Section 10 of theOccupational Safety and Health Act of 1970 (29 USC 651 et seq., hereaftercalled the Act) contesting a Citation issued by the Complainant against theRespondent under the authority vested in Complainant by Section 9(a) of thatAct. The Citation alleged on the basis of an inspection of a workplace situatednear Haig School, Mitchell, Nebraska, under the ownership, operation or controlof Respondent, that the Respondent violated the Act by failing to comply withan Occupational Safety and Health Standard promulgated by the Secretary ofLabor 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 standardpromulgated by the Secretary by publication in the Federal Register on December16, 1972 (37 FR 243), and codified in 29 CFR 1926.550(a)(15)(i).The description of the alleged violation contained on saidCitation states:?(Near Haig School) A truck crane used to handle and setirrigation pipe sections was not operated and positioned in such manner that apart of the crane or crane load would not come nearer than 10 feet from a powertransmission line rated 50 kv. or below. The power transmission line was notde-energized, nor were there insulating barriers. The employer?s employee wasoperating the crane.??The standard as promulgated by the Secretary provides asfollows:?(15) Except where electrical distribution and transmissionlines have been deenergized and visibly grounded at point of work or whereinsulating barriers, not a part of or an attachment to the equipment ormachinery, have been erected to prevent physical contact with the lines,equipment or machines shall be operated proximate to power lines only inaccordance with the following:(i) For lines rated 50 kv or below, minimum clearancebetween 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 WarrenWright, Area Director, Occupational Safety and Health Administration, U.S.Department of Labor, that he proposed to assess a penalty for the violationalleged in the amount of $600.00.After Respondent contested this enforcement action, and aComplaint and Answer had been filed by the parties, the case came on forhearing at Gering, Nebraska on October 16, 1973.THE ISSUESNo jurisdictional questions are in issue, the parties havingstipulated facts sufficient to establish that the Respondent is subject to theAct, and that the Commission has jurisdiction of the parties and the subjectmatter. The primary issue for resolution, therefore, is whether the Respondentviolated the safety standard as alleged in the Citation and, if so, whatpenalty is appropriate.SUMMARY OF THE EVIDENCE AND DISCUSSIONThe parties agreed to the essential facts of the fataltransaction which initiated these proceedings. It was stipulated ?that on May18, 1973, off of Highway 92 approximately three miles west and one mile northof Haig School the boom of a truck crane owned by the Respondent and beingoperated by its operator came within ten feet of overhead electrical powerlines rated below 50 kilovolts and an employee of the Gifford-Hill Companyhooking tongs on a concrete pipe being lifted by the crane at the time waselectrocuted.? (T. 4)Complainant presented one witness, OSHA Compliance OfficerUldis Sid Levalds, who investigated the accident on May 30, 1973. He began hisinvestigation at the office of Gifford-Hill Company in Gering, Nebraska andlater proceeded to the accident site with Glen Farmer, General Manager ofGifford-Hill. Mr. Farmer identified the site at a place approximately threemiles west and one mile north of the Haig School. Levalds observed powertransmission lines running on the west side of the road with a cross-over atthe accident site. He also observed three scarred areas on the conductors (T.8, 9).Mr. Farmer informed Levalds that the crane involved in theaccident 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 forLidstrom (T. 12).Brunson told Levalds that he was familiar with the accidentsite, and had been there himself prior to the day of the accident. On May 17thhe had directed the crane operator, Ted Holkan, to take the crane to the sitethe following day (T. 12).Levalds later interviewed Holkan who told him that he oncehad been cautioned about working near power transmission lines (T. 13). He wasaware of the presence of power lines on the day of the accident because he hadpreviously worked in the area. (T. 14)Levalds also ascertained that the power distribution gridbelonged to the Roosevelt Power District. He made inquiries at their office inMitchell and learned that the transmission lines in question carried 7,200volts (T. 15?16).Levalds testified that the transmission lines in questionwere not deenergized at the time of the accident and no insulating barriers hadbeen erected. The situation, he stated, exposed the operator of the crane tothe 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 thesite at the time of the accident (T. 29). The Gifford-Hill foreman at the sitewas a man named Engelhaupt who was signaling the crane and handling the concretepipes (T. 30).Earl H. Ferguson, Respondent?s Assistant Manager, testifiedthat Respondent is engaged primarily in concrete work, but does some equipmentrental as a normal part of its business operation (T. 32). At the time of theaccident Respondent was installing structural concrete items in westernNebraska on a subcontract with Gifford-Hill. (T. 32) Five or six times duringthe course of the project Respondent was asked to provide a piece of equipmentor do some extra work for Gifford-Hill (T. 35). On one occasion prior to May18th Glen Farmer, General Manager of Gifford-Hill, inquired about leasing acrane to lay some pipe. Ferguson quoted him a rental rate on a crane and toldhim to contact Brunson and inform him when the equipment was wanted. IfRespondent was not using the crane that day, Gifford-Hill could have it. On May17, 1973 Farmer contacted Brunson and said he would like to have the crane thefollowing day. The next morning Brunson sent the crane over to the location (T.36). The lease arrangement was an oral agreement, and Ferguson later sentGifford-Hill a bill for rental of the crane.Ferguson testified the lease agreement did not include anysupervision and covered only the operator and the machine; that Lidstromexercised no dominion or control or supervision over the crane after it leftfor the Gifford-Hill job (T. 41).On cross-examination Ferguson testified that Brunson, theforeman who directed the crane to the site, probably knew of the existence ofthe power distribution lines and that the crane had worked in the areapreviously without accident (T. 47). He stated that Respondent normally did notprovide a signalman when it leased a crane, and he did not know for surewhether OSHA standards required a qualified individual to direct the operationof the crane (T. 48). At the time of the oral lease agreement no inquiry wasmade to ascertain whether Gifford-Hill would provide a qualified signalman (T.49). Ferguson ?supposed? the crane operator had the authority not to perform actswhich he believed to be unsafe (T. 50).When asked about the safety program Respondent conducted forits crane operators, Ferguson replied:?as a crane operator alone, nothing. We?ve had several jobswhere we have weekly or two weekly or monthly safety meetings that Mr. Holkanhad been employed on. We?I suppose were negligent in not enough safety meetingsin Mitchell. But he had been cautioned about high voltage power lines.? (T.53?54)?Ferguson also testified that he relied upon the supervisorypersonnel of the corporation leasing the equipment to have good judgment abouthow a crane should be operated in a safe manner. He relied upon that judgmentwith respect to the May 18th, 1973 lease (T. 56).Ted Holkan testified that he had ?been around cranes for themost part of 20 years? and had ?operated steady for 12.? He was a member of theOperating Engineers Union and was familiar with the hazards and safetyprecautions to be taken in the operation of a crane. He had been advisedconcerning the danger which power lines represent to cranes (T. 63). He wasdirected to the jobsite by Brunson. At the site the Gifford-Hill foreman showedhim where the pipe was to be laid and ?left the decision up to me as to how toset the crane up and do it.? Holkan observed the power line in the vicinity. Heplaced 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 workingnorth of the main line. He moved ahead two times and continued the job ?but onthis 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?salways someone that I can rely on to keep me out of tight spots.? ButRespondent provided no spotter on this job, apparently relying onGifford-Hill?s crew (T. 64). Holkan did not consider the job on May 18th, 1973to 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 wasoperated in violation of safety regulation 29 CFR 1926.550(a)(15)(i), butRespondent urges that under the terms of its lease arrangement the work beingdone was under the supervision and control of Gifford-Hill and that any hazardcreated at the accident site was the result of lack of supervision by thelessee.The defense urged by Respondent has been advanced by a numberof crane equipment rental companies in other Commission proceedings.[8]In all cases the defense has been rejected, Commission decisions uniformlyholding that the Act imposes a nondelegable responsibility upon the employer tofurnish his employees with safe working conditions.Respondent has a duty under Section 5(a)(2) of the Act tocomply with the occupational safety and health standards promulgatedthereunder. This duty is explicit If an employer creates a hazard by violatinga standard thereby exposing his employees to physical harm he is properlysubject to Citation no matter where the violation takes place. Responsibilityfor the violation in this case is clearly traceable to the Respondent.Respondent?s witness, Earl H. Ferguson, testified that itsforeman on the job, Brunson, knew that electrical power lines were present atthe location he directed the operator to take the crane on May 18, 1973. Thisconstitutes actual knowledge on the part of Respondent that the crane would beoperated in near proximity to the power lines. Mr. Ferguson also stated thatRespondent had no safety or instructional program for its crane operators. Mr.Holkan, the crane operator, did testify that he had been cautioned at some timeabout working near power lines but in view of Mr. Ferguson?s testimony thiscould only have been done on a casual basis. The crane operator was neverfurnished any written or verbal instructions about what to do if he encounteredan unsafe situation. Not only did Respondent fail to properly instruct itscrane operator but it also failed to provide either a spotter or signalman orto see that one was designated by Gifford-Hill to observe the clearance of theboom. Respondent defends its failures in this regard by claiming it relied onthe judgment of the company to which it leased the crane. This is unacceptable.That lessors of crane equipment frequently attempt todisclaim responsibility for providing supervision or assistance to their craneoperators while performing work for a contractor-lessee is only one disquietingstatistic revealed by a study of the cases. We note that during the briefhistory of the Act there have been no less than ten litigated proceedingsinvolving deaths caused by a crane or its load failing to maintain sufficientclearance from energized electrical transmission lines.[9]The instant case is yet another tragic illustration of theuniversally known fact that cranes and derricks operated in the vicinity ofelectric transmission lines are dangerous instrumentalities, so dangerous thatthe employer owes the crane operator a greater duty than a mere casual warningabout the hazard involved. In the instant case the operator was providedneither with supervision nor with assistance in the form of a spotter to helphim judge and maintain the requisite distance between the boom and thetransmission wires. The crane operator did not violate any company rule orpolicy in his operation of the crane. Rather, the human error in misjudging thedistance between the boom and the wires was in one sense predictable. We notethat OSHA regulation 29 CFR 1926.550(a)(15)(iv) expressly warns of thenecessity of providing the operator with a signalman to observe clearance whereit is difficult for the operator to maintain the desired clearance by visualmeans. Unfortunately, as revealed by Mr. Ferguson?s testimony, the Respondenthad little troubled itself to become familiar with ANSI and OSHA regulations.(T. 48?49)The undersigned Judge does not view this as an accidentattributable to an unexpected or unauthorized action on the part of anexperienced employee. Rather, we are persuaded that the record showsdereliction on the part of Respondent in its failure to provide a safeworkplace for its own employee. As Judge Morris stated in the Frohlick CraneService case, the Act itself provides no exculpatory situations where thatduty is not owed: ?. . . the duty . . . to furnish a safe place to work ispersonal to the employer and cannot be avoided by delegation to another.?Respondent was familiar with the worksite. Its own crews hadearlier labored in the area to which Holkan returned on May 18th, 1973. Withthe exercise of reasonable diligence, a foreseeable hazard could have beenavoided. We find that Complainant has established a prima facie case of aserious violation of the Act within the meaning of Section 17(k). The proposedpenalty 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 forthe small size of the employer and its excellent safety record prior to theaccident.[10]FINDINGS OF FACT1. Respondent Lidstrom, Inc. is a Wyoming corporation withits principal office and place of business located in Wheatland, Wyoming whereit 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 pursuantto 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 onemile north of the Haig School in Mitchell, Nebraska, the boom of a truck craneowned by the Respondent and operated by its operator came within ten feet ofoverhead electrical power lines rated below 50 KV (T. 4, 5).4. An employee of the Gifford-Hill Company was electrocutedwhile hooking metal tongs on a concrete pipe being lifted by the crane at thetime 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 wereinsulating barriers erected at the time of the electrocution (T. 24).6. Respondent?s crane operator was given instructions on May17, 1973, by one Brunson, Respondent?s foreman on this job, to take the craneto the site where the fatality occurred on May 18, 1973 (T. 12?14).7. Respondent?s foreman had been working on this job since atleast December 1972 and was aware that electrical power distribution lines werelocated 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 inquestion to Gifford-Hill for the purpose of laying concrete pipe (T. 36, 37).9. The crane operator was on the Respondent?s payroll on May18, 1973 (T. 46).10. Respondent did not provide a signalman or spotter todirect the operation of the crane on May 18, 1973, and made no inquiry as towhether Gifford-Hill would provide an employee for this purpose (T. 48, 49, 62,64, 65).11. Holkan received no instructions, directions orsupervision from any Gifford-hill employee as to how the crane should beoperated on May 18, 1973. He was shown where the pipe to be laid was and whereto lay it (T. 60, 61).12. Holkan observed the power lines when he arrived at theworksite 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 aboutoperating a crane near power lines (T. 63). However, Respondent had no safetyprogram for its crane operators nor did it issue any instructions, written orotherwise, as to procedures to be taken in the event an unsafe situation isencountered (T. 54, 55).14. Holkan was exposed to possible electrocution or severeelectric shock at the time the boom of the crane he was operating came withinten 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 ofRespondent, its size, and previous safety history were duly considered by theundersigned Judge who finds a penalty of $600.00 appropriate under the totalcircumstances.CONCLUSIONS OF LAW1. Respondent is, and at all times material hereto was, anemployer within the meaning of Section 3 of the Occupational Safety and HealthAct of 1970 and the Safety and Health Regulations for Construction (29 CFR1926.1 et seq.).2. Jurisdiction of this proceeding is conferred upon theOccupational Safety and Health Review Commission by Section 10(c) of the Act.3. Respondent violated Section 5(a)(2) of the Act by failingto comply with an occupational safety and health standard promulgated under theAct, 29 CFR 1926.550(a)(15)(i), as alleged in the Citation.4. There was a substantial probability that death or seriousphysical harm would occur as a result of Respondent?s violation of 29 CFR1926.550(a)(15)(i). With the exercise of reasonable diligence, Respondent couldhave known of the existence of the violation.5. The proposed penalty of $600.00 is appropriate for saidviolation, which is deemed to be a serious violation within the meaning ofSection 17(j) of the Act.ORDERBased on the above Findings of Fact and Conclusions of Law,it is hereby ORDERED that:1. The Citation for Serious Violation and penalty proposedtherefor are affirmed in all respects.?AlanM. WienmanJudge,OSAHRC[1] This standard provides:1926.550 CRANES AND DERRICKS(a) General requirements(15) Except where electrical distribution andtransmission lines have been deenergized and visibly grounded at point of workor where insulating barriers, not a part of or an attachment to the equipmentor machinery, have been erected to prevent physical contact with the lines,equipment or machines shall be operated proximate to power lines only inaccordance with the following:(i) For lines rated 50 kv or below, minimum clearancebetween the lines and any part of the crane or load shall be 10 feet. . . . [2] For a full statement of the separate views of theCommissioners on the exposure issue, see Gilles and Cotting, No. 504(February 20, 1976).\u00a0[3] Section 3 (5) of the Actdefines an employer in part as ?a person engaged in a business affectingcommerce who has employees.?[4]It should be noted that Gifford-Hill was cited for a violation of the samestandard as a result of this incident. The issuance of such a citation impliesthat the complainant believed that Gifford-Hill maintained control over thecrane 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 followingobservation:We fail to see howrequiring several different employers to [comply with the same standard] . . .fulfills the purposes of the Act any more effectively than requiring only oneemployer to do so.\u00a0[5] 521 F.2d 628 (10th Cir. 1975).\u00a0[6] Id. at 631?632 (emphasis added).\u00a0[7] Id. at 632.[8] Secretary of Labor v. Frohlick Crane Service,OSAHRC Docket No. 890; Secretary of Labor v. Weicker Transfer and StorageCompany and Godwin-Bevers Company, Inc., OSAHRC Docket Nos. 1362 and 1373; Secretaryof 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 and832; Secretary of Labor v. F. F. Green Construction Company, OSAHRCDocket No. 1015; Secretary of Labor v. Delmarva Power & Light Company,OSAHRC No. 1416; Secretary of Labor v. White Oak Corporation, OSAHRCDocket No. 1320; Secretary of Labor v. Ames Crane and Rental Service, Inc.,OSAHRC Docket No. 2578; Secretary of Labor v. Weicker Transfer and StorageCompany and Godwin-Bevers Company, Inc., OSAHRC Docket Nos. 1362 and 1373; Secretaryof 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 onepoint advanced by Respondent in its Proposed Findings of Fact, namely thatRespondent was neither a ?contractor? nor ?subcontractor? within the meaning ofSection 1926.13 13 of the Safety and Health Regulations for Constructioncontained in Chapter XVII of Title 29. Respondent submitted no brief in whichit clarified any contention that it was not subject to the cited regulations inits capacity as lessor of the crane. We surmise that Respondent meant to extendthe contention that it was neither a ?contractor? nor a ?subcontractor? to anargument that it was not an ?employer? as defined in Section 1926.32(j) ofSubpart C of the Safety and Health Regulations for Construction. This sectionprovides:(j) ?Employer? means contractor or subcontractorwithin the meaning of the Act and this part.\u00a0The Construction Regulations have been held inapplicable to a companyserving as architect and engineer for a large construction project which had noconstruction workers at the jobsite. Sec. of Labor v. Grossman Steel andAluminum Corp., et al, OSAHRC Docket Nos. 1127, 1135, 1165 and 1190. In theinstant case Respondent supplied not only construction equipment in the form ofa crane but labor in the person of the crane operator who was admittedly onRespondent?s payroll on May 18, 1973. It would appear therefore that Respondentwas a ?subcontractor? as defined in Section 1926.13(c) which states, inpertinent part:(c) The term ?subcontractor? under Section 107 isconsidered to mean a person who agrees to perform any part of the labor ormaterial 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 acontractor would not, in and of itself, be considered a ?subcontractor? forpurposes of this part.”