“SECRETARY OF LABOR,Complainant,v.SASSER ELECTRIC AND MANUFACTURINGCOMPANY,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 Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary 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’sdecision vacating the Secretary’s citation to Sasser Electric andManufacturing Co. (\”Sasser\”) for serious violation of the OSHA standardat 29 C.F.R. ? 1910.180(j)(1)(i).[[1]] The judge ruled that Sasser wasnot responsible for the violation, which occurred when a crane operatoremployed by a separate company operated his company’s crane too close topower lines on Sasser’s property. The judge found that Sasser had noknowledge of the existence of the violation. We affirm the judge’saction in vacating the citation.ISasser fabricates, installs and services diesel generators at a worksitein Winfield, West Virginia.[[2]] Its employees are mechanics andelectricians. During a three-year period prior to the end of 1981, ithad utilized Mountain Trucking Company about six times to load andunload generators. In December, 1981, a crane owned by MountainTrucking Company was rented by Sasser’s manager, Jim Sisson, to load agenerator onto a flatbed trailer at Sasser’s facility in Winfield. Thecrane was operated by Mountain Trucking’s employee, Shelby Wisman, whohad 14 to 15 years experience operating different sizes of equipment forMountain Trucking. He had performed crane operations at the worksite onthree or four previous occasions. That work had been performed withoutincident.Wisman first came to Sasser’s worksite with a boom truck, which wasunable 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 12to 15 feet west of the trailer. At that point, the center of thegenerator was 12 to 17 feet north of a point on the ground directlybeneath power lines that ran across Sasser’s property and carried 7200volts (7.2 kv). During this operation, Wisman was cautioned by Sasseremployees to watch out for the power lines. Although the crane operatorfelt some concern about the location of the trailer with respect to thepower lines, he did not request that the trailer be moved.Wisman returned to Sasser’s worksite with a larger crane at about 5:30to 6:00 p.m. the same day. Although it was difficult to see the powerlines at that time due to darkness, light snow, and rain, the headlightsof two vehicles were directed at the trailer to improve visibility. Thepower lines were in front of Wisman during the operation of the crane. Wisman parked the crane well away from the power lines, with thegenerator between the lines and the crane. Sasser employees attachedthe 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 notnecessary for the cable to move any closer to the lines in order tocenter the generator on the trailer.The crane lifted the generator onto the trailer and the crane’s boomthen was lowered in order to center the generator on the trailer. Oncethe generator was centered, the cable at its closest point wasapproximately 15 feet from the power lines. After the generator wasplaced on the trailer, Sasser employees removed the choker cables fromthe generator and prepared to disconnect the choker cables from thecrane’s cable. Before this was done, the crane swung back in thedirection it had come, with two Sasser employees, Emmett Jeffers andmanager Sisson, holding the choker cables. At this time the crane’sboom or cable contacted a power line and there was a flash ofelectricity. As a result, Jeffers was electrocuted and Sisson washospitalized.Sasser’s employees had given directions by voice and hand signals toassist the crane operator in centering the generator on the trailer oncethe operator placed the generator onto the trailer. Thereafter,Sasser’s employees asked the crane operator to lower the crane’s cableso they could disconnect the cable. Except for these actions, Sasser’semployees were not involved in the crane’s operation or the movement ofthe crane’s boom.IIThe judge found that the crane was not operated in compliance with thecited standard. However, he found that Sasser had no knowledge of theexistence of the violation. He noted that Sasser had taken theprecaution of warning the crane operator of the location of the powerlines. He also noted that the same operator had performed the same typeof work three or four times previously at Sasser’s worksite withoutincident. The judge found that Sasser had no reason to suspect that theoperator was unaware of the relevant safety standards. He found thatthe operator had not violated the 10-foot clearance in loading thegenerator and thus Sasser reasonably could assume that there would be noviolation when the crane swung in the opposite direction. The judgereasoned that the violation occurred because the crane’s boom had beenlowered in centering the generator on the trailer, thus extending theboom closer to the lines before the crane swung back toward them.[[3]] He added that Sasser’s employees probably did not realize thesignificance of the boom being lowered as the generator was beingcentered on the trailer, because they were not experienced in craneoperations.The Secretary argues that Sasser could have reasonably foreseen theviolation of the 10-foot clearance rule due to the close proximity ofthe power lines to the operation, the poor visibility, the craneoperator’s lack of familiarity with the specific crane involved, andbecause Sasser’s employees assisted crane operators at the worksite. The Secretary also argues that an employer’s duty to provide a safeworkplace is not negated where a hazard to which the employees areexposed is under the control of a different contractor; the employer isresponsible when it has reason to foresee that the independentcontractor might perform the work in an unsafe manner.IIIAs the judge correctly stated in his decision, an alleged violationcannot be affirmed unless it is established that the employer knew orwith the exercise of reasonable diligence could have known of theviolation. Scheel Construction, Inc., 76 OSAHRC 38\/B6, 4 BNA OSHC 1824,1976-77 CCH OSHD ? 21,263 (No. 8687, 1976). In this case, the citedstandard requires that a clearance distance of ten feet be maintainedbetween the power lines and any part of the crane and load. The craneinvolved here was under the control of a crane operator employed by acompany separate from Sasser, and it is undisputed that Sasser did nothave actual knowledge of the alleged violation. The dispositive issue,therefore, is whether Sasser exercised reasonable diligence in relyingupon the crane operator to maintain sufficient distance from the powerlines and whether Sasser could have known that the requirements of thecited standard would not be followed.In deciding whether Sasser exercised reasonable diligence, it isnecessary first to consider the extent of an employer’s duty under theAct when it hires an independent contractor. We agree with theSecretary that, even when the cited hazard is under the control of aseparate company, the employer has a duty to protect its employees whoare exposed to the hazards.[[4]] However, the fact that the citedemployer has employees who assist in the work and have access topotential hazards does not mean that the employer cannot reasonablyplace some reliance upon the independent contractor. In many situationsin the workplace, it is natural for an employer to rely upon thespecialist to perform work related to that specialty safely inaccordance with OSHA standards. Cf. Cities Service Oil Co., 76 OSAHRC105\/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 performcertain work, it relies on the contractor’s expertise to perform thework correctly.\”) Further, in many instances it may not be feasible,because of an employer’s lack of expertise, or wasteful, withoutnecessarily resulting in the best achievement of safety for allemployees, to require the contracting employer to duplicate the safetyefforts of the specialist.Accordingly, while an employer has a duty to his own employees even whenit relies upon a specialist to perform part of the work, the duty is ofa different nature than when the employer performs the work itself. Ina single employer situation, the employer by necessity assumes theresponsibility to prevent violations. However, when some of the work isperformed by a specialist, an employer is justified in relying upon thespecialist to protect against hazards related to the specialist’sexpertise so long as the reliance is reasonable and the employer has noreason to foresee that the work will be performed unsafely.In this case, Sasser placed its reliance upon an independent contractorto perform part of the work. Sasser employees never operated cranes –they only fabricated, installed and serviced machinery at the worksiteinvolved. 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 agenerator onto the trailer of a truck.Further, the cited hazard fell within the expertise of the craneoperator. None of Sasser’s employees were in the crane cab at the timeof the incident, and only the crane operator had direct control over thecited hazard and could assure that the crane maintained sufficientclearance from the power lines as required by section1910.180(j)(1)(i). Maintaining sufficient clearance in accordance withthe standard is a requirement that a crane operator reasonably could beexpected to know and comply with.[[5]]The evidence further establishes that Sasser’s reliance upon the cranecompany was reasonable under the circumstances and that Sasser had noreason to foresee that the violation would occur. The crane operator,Wisman, had performed work for Sasser three or four times previouslywithout incident.[[6]] Sasser’s employees pointed out the location ofthe power lines to the crane operator. As the judge found in hisdecision, the crane was positioned well away from the power lines andthe task of placing the generator on the trailer could have beenaccomplished without any part of the crane being within ten feet of thelines. There is no evidence that anyone realized that the operatormight swing the boom too close to the power lines. The operator hadraised 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 boomwould be the same. Moreover, although Sasser’s employees gave handsignals and directions to the crane operator, these signals anddirections were given for the sole purpose of centering the generator onthe trailer. The evidence does not establish that this participationby Sasser’s employees had any impact upon the crane operator’s abilityto maintain sufficient clearance from the power lines or that Sassercould have foreseen the violation as a result of its employees’ actions.Accordingly, for the above reasons we conclude that Sasser did notviolate the Act. The judge’s decision vacating the citation is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUL 20 1984CLEARY, Commissioner, dissenting:I dissent. I see no basis whatsoever for concluding that thisRespondent didn’t violate the standard as alleged. The majority wouldabsolve Sasser from responsibility basically because Sasser did not haveactual knowledge of the alleged violation, nor could it have known withthe exercise of reasonable diligence. They also urge that Sasser wasjustified in relying on the judgment of the crane operator. In myopinion, the obvious and serious nature of the power line hazards andthe extensive involvement of Sasser’s employees in the hazardous workmandate the conclusion that Sasser should have anticipated thepossibility of an accident almost exactly as it occurred, and shouldhave taken certain obvious measures to protect its employees.The essential facts are that power lines carrying 7200 volts ran inplain sight across Sasser’s worksite. The company ordered cranes fromtime to time to move generators on which it worked, and its employeesassisted and controlled the operations. On this occasion, Sasserrealized that there was a potential for contact between the crane andthe power lines; its chief electrician testified that company officialsdiscussed the need to watch out for the problem before the generator waslifted. Its employees were also aware of the problem and warned thecrane operator about it earlier on the day of the accident. However, atno time did the employees receive any information about requiredclearances from the power lines.The company’s chief electrician played the leading role in creating thehazard on the day of the accident by parking the trailer, on which an18,000-pound generator was to be placed, in a position where the rearportion of the trailer was under the power lines. If one were going tochoreograph an accident, he could hardly improve on this scenario. Thelines, which were between 12 and 24 feet high, ran approximatelyeast-west and passed over the last five or six feet of the trailer’srear end, which faced approximatelysouth. Because of the trailer’s position, it was unavoidable that thecrane would operate near the lines in order to place the generator onthe trailer. The generator was hauled from the shop to a place about 12to 15 feet west of the trailer for loading. At that point, thegenerator was only 6 to 10 feet north of a point on the ground directlyunder the power lines. The first crane was unable to lift thegenerator, so a larger crane was ordered.When the larger crane arrived about 5:30 or 6:00 p.m., it was set northof the generator and west of the trailer.[[1]] The already dangerousscene was compounded because visibility was severely curtailed at thattime due to darkness, light snow and rain, and the power lines werehardly visible to the crane operator. Sasser employees attached thegenerator to the crane’s cable with 12-foot choker cables. At thatpoint the cable came within 12 to 17 feet of the power lines. The cranelifted the generator, swung it onto the trailer with a Sasser employeesteadying it, and then the operator lowered (and thus extended) thecrane’s boom in order to center the generator on the trailer. Sasseremployees told the operator where to set the generator by signals and byvoice. When the generator was centered, the cable came withinapproximately 15 feet of the power lines.Sasser employees then told the operator to let down the cable and theyremoved the choker cables from the generator. Two Sasser employees heldthe choker cables, which were still attached to the crane’s cable, whilethe crane swung back toward the power lines. The fatal contact ensued. From these facts, the majority concludes that Sasser exercisedreasonable diligence, and should not be held accountable for the craneboom coming within 10 feet of the power lines.IIPossibly in some circumstances an employer that hires an outsidespecialist might be justified in placing a reasonable degree of reliancein that specialist to do the work safely. However, the hiring of anoutside specialist does not relieve an employer of the duty to exercisereasonable diligence to discover and correct hazards to which its ownemployees may be exposed, particularly when the specialist performs amechanical function, and does not direct or control the operation.It is well settled that an employer cannot contract away itsresponsibility for compliance with OSHA obligations. E.g.,Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1198 n.13, 1975-76CCH 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 majoritywould say that Sasser surrendered its safety responsibilities to a craneoperator, even though Sasser assigned its own employees to givedirections and work as an integral part of the operation.To permit this abdication of concern for one’s own employees isinconsistent with the consensus of Commission and court cases, which isthat employers are responsible for making reasonable efforts to discoverand correct hazards to which their employees are exposed (even whenworking 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, 590F.2d 273 (8th Cir. 1979); Beatty Equipment Leasing, Inc. v. Secretary ofLabor, 577 F.2d 534 (9th Cir. 1978); Dun-Par Engineered Form Co. v.Marshall, supra. Although most of those cases involved constructionsites, the same principles have been applied to non-construction sites. E.g., Harvey Workover, Inc., 79 OSAHRC 72\/D5, 7 BNA OSHC 1687, 1979 CCHOSHD ? 23,830 (No. 76-1408, 1979); Central of Georgia R. Co. v. OSAHRC,supra.The Commission has long held that the duty to exercise reasonablediligence requires an employer to inspect the work area to determinewhat hazards exist or may arise during the work before permittingemployees to work in an area, and to give specific and appropriateinstructions to prevent exposure to unsafe conditions. E.g., AutomaticSprinkler Corp. of America, 80 OSAHRC 47\/E4, 8 BNA OSHC 1384, 1980 CCHOSHD ? 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.2d123 (8th Cir. 1976); Brennan v. Butler Lime and Cement Co., 520 F.2d1011 (7th Cir. 1975); REA Express, Inc. v. Brennan, 495 F.2d 822 (2dCir. 1974); National Realty & Construction Co. v. OSAHRC, 489 F.2d 1257,1266-67 n.37 (D.C. Cir. 1973). Sasser’s responsibility here is evenmore pronounced. Sasser had to be aware of power lines running over itsown facility, and it had to be aware that operation of cranes close topower lines was a serious hazard. Yet, it controlled the placement ofthe trailer under the power lines. One could hardly overstate theobvious character and dangerous potential of this situation, and one canhardly overlook Sasser’s responsibility for this accident.Sasser was in the business of manufacturing generators, and musttherefore have familiarity with moving heavy machinery out of its yard. It must have been thoroughly familiar with loading procedures. Itcontrolled the loading of this generator. While the generator couldhave been loaded without coming within 10 feet of the lines, it isobvious that part of the crane or load also could have come within 10feet of the lines, as it did. Sasser owned the trailer, and presumablyowned a tractor to move it. All Sasser had to do to defuse thissituation was to move the trailer. Yet, the majority would find thatresponsibility for this hazardous situation was that of a craneoperator, and\/or that Sasser couldn’t have known of this violation withthe exercise of reasonable diligence. I dissent.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), 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 wherethe electrical distribution and transmission lines have been deenergizedand visibly grounded at point of work or where insulating barriers not apart of or an attachment to the crane have been erected to preventphysical 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 linesand any part of the crane or load shall be 10 feet.[[2]] The worksite operates under the name of Sasser Service, but ispart of Sasser Electric & Manufacturing Co. (\”Sasser\”).[[3]] The judge did not credit the crane operator’s testimony that theboom was not moving when the contact took place. He found that the boomwas moving from the crane operator’s left to right, based on thetestimony of two Sasser employees.[[4]] We do not consider an employer’s duty when its own employees arenot exposed to the hazard or when it is engaged in work at amulti-employer worksite, but limit our concern to the situation hereunder 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 differentsituation. The employer, State, although lacking experience, contractedto perform a project involving dismantling a derrick, thus holdingitself out as qualified for the work. No one that State hired to carryout the work had expertise in dismantling derricks or even asserted thatthey did. Thus, in that case there was no reasonable reliance on anindependent expert to protect against hazards associated withdismantling derricks. In this case, Sasser placed a reasonable andnatural reliance on an experienced independent contractor to protectagainst hazards which were properly under the control of that contractorand which concerned the contractor’s, rather than Sasser’s, experience.[[6]] Although one employee testified that the operator did not appearexperienced with the larger crane and that the operator told him hewasn’t very familiar with it, the same employee testified he did notobserve 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 previouslyoperated the \”particular crane\” at issue here, he also stated that therewas very little difference in the controls between this crane and one hehad operated. See Amoco Texas Refining Co., 83 OSAHRC 15\/A2, 11 BNAOSHC 1269, 1983 CCH OSHD ? 26,476 (No. 79-5292, 1983). There, theCommission found insufficient evidence that the employer’s craneoperator was unqualified to operate a long boom crane where theoperation of that crane was similar to that of another smaller long boomcrane which the operator was qualified to run, and no evidence wasintroduced showing in what way the operator’s training or experience wasinadequate.[[1]] When the large crane was delivered to the worksite, Sasser’s chiefelectrician noted that the crane operator did not appear experiencedwith it, and the operator admitted he wasn’t familiar with it. Sasseremployees showed him what they knew about the crane.”