“Docket No. 82-0178 SECRETARY OF LABOR,Complainant, v.SASSER ELECTRIC AND MANUFACTURING COMPANY,Respondent.OSHRC Docket No. 82-0178DECISIONBefore:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 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 and Manufacturing Co.(\”Sasser\”) for serious violation of the OSHA standard at 29 C.F.R. ?1910.180(j)(1)(i).[[1]] The judge ruled that Sasser was not responsible for the violation,which occurred when a crane operator employed by a separate company operated his company’scrane too close to power lines on Sasser’s property.\u00a0 The judge found that Sasser hadno knowledge of the existence of the violation.\u00a0 We affirm the judge’s action invacating the citation.I Sasser fabricates, installs and services diesel generators at a worksite in Winfield, WestVirginia.[[2]]\u00a0 Its employees are mechanics and electricians.\u00a0 During athree-year period prior to the end of 1981, it had utilized Mountain Trucking Companyabout six times to load and unload generators.\u00a0 In December, 1981, a crane owned byMountain Trucking Company was rented by Sasser’s manager, Jim Sisson, to load a generatoronto a flatbed trailer at Sasser’s facility in Winfield.\u00a0 The crane was operated byMountain Trucking’s employee, Shelby Wisman, who had 14 to 15 years experience operatingdifferent sizes of equipment for Mountain Trucking.\u00a0 He had performed craneoperations at the worksite on three or four previous occasions.\u00a0 That work had beenperformed without incident.Wisman first came to Sasser’s worksite with a boom truck, which was unable tolift the generator high enough to place it on the trailer. Wisman, however, used the boomtruck to move the generator to a point 12 to 15 feet west of the trailer.\u00a0 At thatpoint, the center of the generator was 12 to 17 feet north of a point on the grounddirectly beneath power lines that ran across Sasser’s property and carried 7200 volts (7.2kv).\u00a0 During this operation, Wisman was cautioned by Sasser employees to watch outfor the power lines.\u00a0 Although the crane operator felt some concern about thelocation of the trailer with respect to the power lines, he did not request that thetrailer be moved.Wisman returned to Sasser’s worksite with a larger crane at about 5:30 to6:00 p.m. the same day.\u00a0 Although it was difficult to see the power lines at thattime due to darkness, light snow, and rain, the headlights of two vehicles were directedat the trailer to improve visibility.\u00a0 The power lines were in front of Wisman duringthe operation of the crane.\u00a0 Wisman parked the crane well away from the power lines,with the generator between the lines and the crane.\u00a0 Sasser employees attached thegenerator to the crane’s cable with choker cables.\u00a0 At that point, the cable was nocloser than 12 to 17 feet from the lines.\u00a0 It was not necessary for the cable to moveany closer to the lines in order to center the generator on the trailer.The crane lifted the generator onto the trailer and the crane’s boom then waslowered in order to center the generator on the trailer. Once the generator was centered,the cable at its closest point was approximately 15 feet from the power lines.\u00a0 Afterthe generator was placed on the trailer, Sasser employees removed the choker cables fromthe generator and prepared to disconnect the choker cables from the crane’s cable.\u00a0 Before this was done, the crane swung back in the direction it had come, with twoSasser employees, Emmett Jeffers and manager Sisson, holding the choker cables.\u00a0 Atthis time the crane’s boom or cable contacted a power line and there was a flash ofelectricity.\u00a0 As a result, Jeffers was electrocuted and Sisson was hospitalized.Sasser’s employees had given directions by voice and hand signals to assistthe crane operator in centering the generator on the trailer once the operator placed thegenerator onto the trailer.\u00a0 Thereafter, Sasser’s employees asked the crane operatorto lower the crane’s cable so they could disconnect the cable.\u00a0 Except for theseactions, Sasser’s employees 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 the cited standard.\u00a0 However, he found that Sasser had no knowledge of the existence of the violation.\u00a0 He noted that Sasser had taken the precaution of warning the crane operator of thelocation of the power lines.\u00a0 He also noted that the same operator had performed thesame type of work three or four times previously at Sasser’s worksite without incident.The judge found that Sasser had no reason to suspect that the operator was unaware of therelevant safety standards.\u00a0 He found that the operator had not violated the 10-footclearance in loading thegenerator and thus Sasser reasonably could assume that there would be no violation whenthe crane swung in the opposite direction. The judge reasoned that the violation occurredbecause the crane’s boom had been lowered in centering the generator on the trailer, thusextending the boom closer to the lines before the crane swung back toward them.[[3]]\u00a0 He added that Sasser’s employees probably did not realize the significance of theboom being lowered as the generator was being centered on the trailer, because they werenot experienced in crane operations.The Secretary argues that Sasser could have reasonably foreseen the violationof the 10-foot clearance rule due to the close proximity of the power lines to theoperation, the poor visibility, the crane operator’s lack of familiarity with the specificcrane involved, and because Sasser’s employees assisted crane operators at the worksite.\u00a0 The Secretary also argues that an employer’s duty to provide a safe workplace isnot negated where a hazard to which the employees are exposed is under the control of adifferent contractor; the employer is responsible when it has reason to foresee that theindependent contractor might perform the work in an unsafe manner.IIIAs the judge correctly stated in his decision, an alleged violation cannot be affirmedunless it is established that the employer knew or with the exercise of reasonablediligence could have known of the violation.\u00a0 Scheel Construction, Inc., 76 OSAHRC38\/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD ? 21,263 (No. 8687, 1976).\u00a0 In this case,the cited standard requires that a clearance distance of ten feet be maintained betweenthe power lines and any part of the crane and load.\u00a0 The crane involved here wasunder the control of a crane operator employed by a company separate from Sasser, and itis undisputed that Sasser did not have actual knowledge of the alleged violation.\u00a0 The dispositive issue, therefore, is whether Sasser exercised reasonable diligencein relying upon the crane operator to maintain sufficient distance from the power linesand whether Sasser could have known that the requirements of the cited standard would notbe followed.In deciding whether Sasser exercised reasonable diligence, it is necessaryfirst to consider the extent of an employer’s duty under the Act when it hires anindependent contractor.\u00a0 We agree with the Secretary that, even when the cited hazardis under the control of a separate company, the employer has a duty to protect itsemployees who are exposed to the hazards.[[4]]\u00a0 However, the fact that the citedemployer has employees who assist in the work and have access to potential hazards doesnot mean that the employer cannot reasonably place some reliance upon the independentcontractor.\u00a0 In many situations in the workplace, it is natural for an employer torely upon the specialist to perform work related to that specialty safely in accordancewith OSHA standards.\u00a0 Cf. Cities Service Oil Co., 76 OSAHRC 105\/A2, 4 BNA OSHC 1515,1518, 1976-77 CCH OSHD ? 20,999 at pp. 25,237-38 (No. 4648, 1976), aff’d, 577 F.2d 126(10th Cir. 1978) (\”Normally, when an employer hires an independent contractor toperform certain work, it relies on the contractor’s expertise to perform the workcorrectly.\”) Further, in many instances it may not be feasible, because of anemployer’s lack of expertise, or wasteful, without necessarily resulting in the bestachievement of safety for all employees, to require the contracting employer to duplicatethe safety efforts of the specialist.Accordingly, while an employer has a duty to his own employees even when itrelies upon a specialist to perform part of the work, the duty is of a different naturethan when the employer performs the work itself.\u00a0 In a single employer situation, theemployer by necessity assumes the responsibility to prevent violations.\u00a0 However,when some of the work is performed by a specialist, an employer is justified in relyingupon the specialist to protect against hazards related to the specialist’s expertise solong as the reliance is reasonable and the employer has no reason to foresee that the workwill be performed unsafely.In this case, Sasser placed its reliance upon an independent contractor toperform part of the work.\u00a0 Sasser employees never operated cranes — they onlyfabricated, installed and serviced machinery at the worksite involved.\u00a0 Whenever acrane was needed, Sasser hired a crane company.\u00a0 Mountain Trucking was a separatecompany, an independent contractor, with whom Sasser contracted to perform the specifictask of moving a generator onto the trailer of a truck.Further, the cited hazard fell within the expertise of the crane operator.\u00a0 None of Sasser’s employees were in the crane cab at the time of the incident, andonly the crane operator had direct control over the cited hazard and could assure that thecrane maintained sufficient clearance from the power lines as required by section1910.180(j)(1)(i).\u00a0 Maintaining sufficient clearance in accordance with the standardis a requirement that a crane operator reasonably could be expected to know and complywith.[[5]]The evidence further establishes that Sasser’s reliance upon the crane company wasreasonable under the circumstances and that Sasser had no reason to foresee that theviolation would occur.\u00a0 The crane operator, Wisman, had performed work for Sasserthree or four times previously without incident.[[6]]\u00a0 Sasser’s employees pointed outthe location of the power lines to the crane operator. As the judge found in his decision,the crane was positioned well away from the power lines and the task of placing thegenerator on the trailer could have been accomplished without any part of the crane beingwithin ten feet of the lines.\u00a0 There is no evidence that anyone realized that theoperator might swing the boom too close to the power lines.\u00a0 The operator had raisedthe load and placed it on the flat bed without any difficulty.\u00a0 He was in the processof returning the boom to its original position.\u00a0 It was reasonable for Sasser toassume that the return path of the boom would be the same.\u00a0 Moreover, althoughSasser’s employees gave hand signals and directions to the crane operator, these signalsand directions were given for the sole purpose of centering the generator on the trailer.\u00a0 The evidence does not establish that this participation by Sasser’s employees hadany impact upon the crane operator’s ability to maintain sufficient clearance from thepower lines or that Sasser could have foreseen the violation as a result of its employees’actions.Accordingly, for the above reasons we conclude that Sasser did not violatethe Act. The judge’s decision vacating the citation is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUL 20 1984 CLEARY, Commissioner, dissenting:I dissent.\u00a0 I see no basis whatsoever for concluding that thisRespondent didn’t violate the standard as alleged.\u00a0 The majority would absolve Sasserfrom responsibility basically because Sasser did not have actual knowledge of the allegedviolation, nor could it have known with the exercise of reasonable diligence.\u00a0 Theyalso urge that Sasser was justified in relying on the judgment of the crane operator.\u00a0 In my opinion, the obvious and serious nature of the power line hazards and theextensive involvement of Sasser’s employees in the hazardous work mandate the conclusionthat Sasser should have anticipated the possibility of an accident almost exactly as itoccurred, and should have taken certain obvious measures to protect its employees.The essential facts are that power lines carrying 7200 volts ran in plainsight across Sasser’s worksite.\u00a0 The company ordered cranes from time to time to movegenerators on which it worked, and its employees assisted and controlled the operations.\u00a0 On this occasion, Sasser realized that there was a potential for contact betweenthe crane and the power lines; its chief electrician testified that company officialsdiscussed the need to watch out for the problem before the generator was lifted.\u00a0 Itsemployees were also aware of the problem and warned the crane operator about it earlier onthe day of the accident.\u00a0 However, at no time did the employees receive anyinformation about required clearances 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 an 18,000-poundgenerator was to be placed, in a position where the rear portion of the trailer was underthe power lines.\u00a0 If one were going to choreograph an accident, he could hardlyimprove on this scenario.\u00a0 The lines, which were between 12 and 24 feet high, ranapproximately east-west and passed over the last five or six feet of the trailer’s rearend, which faced approximatelysouth.\u00a0 Because of the trailer’s position, it was unavoidable that the crane wouldoperate near the lines in order to place the generator on the trailer.\u00a0 The generatorwas hauled from the shop to a place about 12 to 15 feet west of the trailer for loading.\u00a0 At that point, the generator was only 6 to 10 feet north of a point on the grounddirectly under the power lines.\u00a0 The first crane was unable to lift the generator, soa larger crane was ordered.When the larger crane arrived about 5:30 or 6:00 p.m., it was set north ofthe generator and west of the trailer.[[1]]\u00a0 The already dangerous scene wascompounded because visibility was severely curtailed at that time due to darkness, lightsnow and rain, and the power lines were hardly visible to the crane operator.\u00a0 Sasseremployees attached the generator to the crane’s cable with 12-foot choker cables.\u00a0 Atthat point the cable came within 12 to 17 feet of the power lines.\u00a0 The crane liftedthe generator, swung it onto the trailer with a Sasser employee steadying it, and then theoperator lowered (and thus extended) the crane’s boom in order to center the generator onthe trailer.\u00a0 Sasser employees told the operator where to set the generator bysignals and by voice.\u00a0 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.\u00a0 Two Sasser employees held the chokercables, which were still attached to the crane’s cable, while the crane swung back towardthe power lines. The fatal contact ensued.\u00a0 From these facts, the majority concludesthat Sasser exercised reasonable diligence, and should not be held accountable for thecrane boom coming within 10 feet of the power lines.IIPossibly in some circumstances an employer that hires an outside specialist might bejustified in placing a reasonable degree of reliance in that specialist to do the worksafely.\u00a0 However, the hiring of an outside specialist does not relieve an employer ofthe duty to exercise reasonable diligence to discover and correct hazards to which its ownemployees may be exposed, particularly when the specialist performs a mechanical function,and does not direct or control the operation.It is well settled that an employer cannot contract away its responsibilityfor compliance with OSHA obligations.\u00a0 E.g., Anning-Johnson Co., 76 OSAHRC 54\/A2, 4BNA OSHC 1193, 1198 n.13, 1975-76 CCH OSHD ? 20,690, p. 24,783 n.13 (No. 3694, 1976);PBR, Inc. v. Secretary of Labor, 643 F.2d 890 (1st Cir. 1981); Central of Georgia R. Co.v. OSAHRC, 576 F.2d 620 (5th Cir. 1978); Dun-Par Engineered Form Co. v. Marshall, 676 F.2d1333 (10th Cir. 1982).\u00a0 In this case, the majority would say that Sasser surrenderedits safety responsibilities to a crane operator, even though Sasser assigned its ownemployees to give directions and work as an integral part of the operation.To permit this abdication of concern for one’s own employees is inconsistentwith the consensus of Commission and court cases, which is that employers are responsiblefor making reasonable efforts to discover and correct hazards to which their employees areexposed (even when working with outside specialists).\u00a0 E.g., Anning-Johnson Co.,supra; DeTrae Enterprises, Inc. v. Secretary of Labor, 645 F.2d 103 (2d Cir. 1981);Central of Georgia R. Co. v. OSAHRC, supra; Zemon Concrete Corp. v. OSAHRC, 683 F.2d 176(7th Cir. 1982); Bratton Corp. v. OSAHRC, 590 F.2d 273 (8th Cir. 1979); Beatty EquipmentLeasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978); Dun-Par Engineered FormCo. v. Marshall, supra.\u00a0 Although most of those cases involved construction sites,the same principles have been applied to non-construction sites.\u00a0 E.g., HarveyWorkover, Inc., 79 OSAHRC 72\/D5, 7 BNA OSHC 1687, 1979 CCH OSHD ? 23,830 (No. 76-1408,1979); Central of Georgia R. Co. v. OSAHRC, supra.The Commission has long held that the duty to exercise reasonable diligencerequires an employer to inspect the work area to determine what hazards exist or may ariseduring the work before permitting employees to work in an area, and to give specific andappropriate instructions to prevent exposure to unsafe conditions.\u00a0 E.g., AutomaticSprinkler Corp. of America, 80 OSAHRC 47\/E4, 8 BNA OSHC 1384, 1980 CCH OSHD ? 24,495 (No.76-5089, 1980); see Little Beaver Creek Ranches, Inc., 82 OSAHRC 36\/A2, 10 BNA OSHC 1806,1982 CCH OSHD ? 26,125 (No. 77-2096, 1982); Ames Crane & Rental Service, Inc. v.Dunlop, 532 F.2d 123 (8th Cir. 1976); Brennan v. Butler Lime and Cement Co., 520 F.2d 1011(7th Cir. 1975); REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974); NationalRealty & Construction Co. v. OSAHRC, 489 F.2d 1257, 1266-67 n.37 (D.C. Cir. 1973).\u00a0 Sasser’s responsibility here is even more pronounced. Sasser had to be aware ofpower lines running over its own facility, and it had to be aware that operation of cranesclose to power lines was a serious hazard.\u00a0 Yet, it controlled the placement of thetrailer under the power lines.\u00a0 One could hardly overstate the obvious character anddangerous potential of this situation, and one can hardly overlook Sasser’s responsibilityfor this accident.Sasser was in the business of manufacturing generators, and must thereforehave familiarity with moving heavy machinery out of its yard.\u00a0 It must have beenthoroughly familiar with loading procedures.\u00a0 It controlled the loading of thisgenerator.\u00a0 While the generator could have been loaded without coming within 10 feetof the lines, it is obvious that part of the crane or load also could have come within 10feet of the lines, as it did.\u00a0 Sasser owned the trailer, and presumably owned atractor to move it.\u00a0 All Sasser had to do to defuse this situation was to move thetrailer.\u00a0 Yet, the majority would find that responsibility for this hazardoussituation was that of a crane operator, and\/or that Sasser couldn’t have known of thisviolation with the exercise of reasonable diligence.\u00a0 I dissent.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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.\u00a0 Except wherethe electrical distribution and transmission lines have been deenergized and visiblygrounded at point of work or where insulating barriers not a part of or an attachment tothe crane have been erected to prevent physical contact with the lines, cranes shall beoperated proximate to, under, over, by, or near power lines only in accordance with thefollowing:(i) For lines rated 50 kv. or below, minimum clearance between the lines andany part of the crane or load shall be 10 feet.[[2]] The worksite operates under the name of Sasser Service, but is part ofSasser Electric & Manufacturing Co. (\”Sasser\”).[[3]] The judge did not credit the crane operator’s testimony that the boomwas not moving when the contact took place.\u00a0 He found that the boom was moving fromthe crane operator’s left to right, based on the testimony of two Sasser employees.[[4]] We do not consider an employer’s duty when its own employees are notexposed to the hazard or when it is engaged in work at a multi-employer worksite, butlimit our concern to the situation here under review.[[5]] State Moving-Trucking, Inc., 82 OSAHRC 67\/C9, 10 BNA OSHC 2216, 1982CCH OSHD ? 26,325 (No. 77-1971, 1982), involved a different situation.\u00a0 Theemployer, State, although lacking experience, contracted to perform a project involvingdismantling a derrick, thus holding itself out as qualified for the work.\u00a0 No onethat State hired to carry out the work had expertise in dismantling derricks or evenasserted that they did.\u00a0 Thus, in that case there was no reasonable reliance on anindependent expert to protect against hazards associated with dismantling derricks.\u00a0 In this case, Sasser placed a reasonable and natural reliance on an experiencedindependent contractor to protect against hazards which were properly under the control ofthat contractor and 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 he wasn’t very familiarwith it, the same employee testified he did not observe the operator make any mistakesbefore the accident occurred.\u00a0 The judge found the operator \”generallyfamiliar\” with rigger cranes.\u00a0 Moreover, although the operator testified that hehad not previously operated the \”particular crane\” at issue here, he also statedthat there was very little difference in the controls between this crane and one he hadoperated.\u00a0 See Amoco Texas Refining Co., 83 OSAHRC 15\/A2, 11 BNA OSHC 1269, 1983 CCHOSHD ? 26,476 (No. 79-5292, 1983).\u00a0 There, the Commission found insufficientevidence that the employer’s crane operator was unqualified to operate a long boom cranewhere the operation of that crane was similar to that of another smaller long boom cranewhich the operator was qualified to run, and no evidence was introduced showing in whatway the operator’s training or experience was inadequate.[[1]] When the large crane was delivered to the worksite, Sasser’s chiefelectrician noted that the crane operator did not appear experienced with it, and theoperator admitted he wasn’t familiar with it.\u00a0 Sasser employees showed him what theyknew about the crane.”