Lidstrom, Inc.

Plain-English summary

Lidstrom leased a crane and its operator to another company for moving concrete pipe near energized power lines. The crane came within ten feet of the lines, and an employee of the lessee who was attaching the hook to pipe was electrocuted. The Commission held that Lidstrom remained the crane operator's employer because the lessee relied on the operator's expertise and did not direct how the crane should be set up or operated. It also found that Lidstrom's occasional warnings were not an adequate crane-safety program and that more complete instructions and precautions could have prevented the violation. The serious power-line-clearance violation and $600 penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(15)(i)
• Outcome: The serious crane power-line-clearance violation was affirmed with a $600 penalty.
• Key point: A company that leases a crane with its operator remains responsible for the operator's safety when the lessee relies on the operator's expertise and does not control crane operations.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 3433

LIDSTROM, INC.,

���������������������������������������������
Respondent.

March 30, 1976

�

DECISION

�

� Before BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.

CLEARY,
Commissioner.

The
decision of Administrative Law Judge Alan M. Wienman in this case has been
directed for review pursuant to section 12(j) of the Occupational Safety and
Health 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 respondent
Lidstrom, Inc. and assessed a $600 penalty for Lidstrom�s failure to comply
with the standard published at 29 CFR � 1926.550(a)(15)(i) by operating a crane
within 10 feet of energized power lines. [1]
Neither party petitioned for review of the Judge�s decision. Commissioner Moran
ordered review on his own motion. The issues before us are: (1) whether
respondent�s crane operator was exposed to a hazard; (2) whether respondent was
the �employer� of the crane operator; and (3) whether respondent was
responsible for the asserted error in judgment by the crane operator.

Lidstrom
is a Wyoming corporation with offices located in Wheatland, Wyoming, where it
is engaged in contract construction. Under an oral lease agreement Lidstrom
supplied a crane and crane operator to the Gifford-Hill Company for the purpose
of moving pipe at a jobsite near Mitchell, Nebraska. Upon the arrival of the
crane operator at the jobsite, Gifford-Hill�s foreman showed him the pipe and where
it was to be placed. The crane operator testified that when he started working
he observed the power lines near the work area, but after moving the crane
twice, he �got too close� to them. The crane apparently touched the power
lines, and a Gifford-Hill employee who had been attaching the crane hook to the
pipe was electrocuted.

After
the citation for serious violation was issued to Lidstrom, the parties
stipulated that the crane came within ten feet of the power lines. After a
hearing, Judge Wienman found that the crane operator was subjected to the
possibility of electrocution or severe electrical shock and that he had not
been given adequate instructions concerning unsafe working conditions. The
Judge concluded that Lidstrom had a duty to comply with the Act that was not
negated by its lease agreement with Gifford-Hill.

Exposure to the Hazard

Lidstrom
argues that its crane operator was not exposed to a hazard. The testimony of
the compliance officer, relied upon by the Judge in finding exposure of the crane
operator, is as follows:

Q. Now what hazard,
if any, would this situation have represented to any of the respondent�s
employees at the time?

�

A. This would depend
on the individual reaction of the operator. If there is no oiler with the
crane�and the reason I say that is if the operator stays at his controls in the
cab usually he is safe from electrocution. If he has his hand on the cab frame
itself, he may be electrocuted. If he tries to jump clear of the crane he may
be electrocuted.

�

Lidstrom
contends that there is no evidence showing that the operator did anything but
stay at his controls, and according to the testimony he would �usually� be safe
from electrocution.

We
reject Lidstrom�s argument. It is clear that Lidstrom�s operator was exposed to
the hazard of possible electrocution. Although he �usually� would be safe, his
safety depended upon his reaction. If he placed his hand on the cab frame he
might have been electrocuted. The restrictive concept of exposure to a hazard
advocated by Lidstrom is not consistent with the essential purpose of the Act
of preventing job illnesses and injuries. [2]
The Judge�s finding that the crane operator was exposed to the hazard of
electrocution is affirmed.

�Employer�
of the Crane Operator

Lidstrom
argues that it was not an �employer� of the crane operator. [3]
It contends that a bailment existed by reason of the lease agreement and that
the work was under the supervision and control of Gifford-Hill as bailee. The
Judge rejected this contention, holding that an employer�s duty to furnish a
safe workplace cannot be avoided by delegation to another. The Secretary seeks
affirmance of the Judge�s ruling.

A
similar 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 and
operator, argued that it was not an employer for purposes of the Act. The Court
and the Commission rejected the argument, and endorsed the Administrative Law
Judge�s holding that, where the lessee of a crane relies upon the expertise of
the crane operator and gives no particular direction as to the operation of the
crane, then it is the duty of the lessor, the actual employer of the crane
operator, to comply with the minimum safety requirements set forth in the
standards. 521 F.2d at 631. Also, typically it is the lessor that is more
familiar with the equipment and the experience and ability of the operator it
furnishes. Cf. Transamerican Freight Lines, Inc. v. Brado Miller Freight
Systems, Inc. , 423 U.S. 28, 96 S.Ct. 229 (1975).

Here,
the Gifford-Hill foreman relied upon the crane operator�s expertise and the
foreman did not supervise the operation of the crane. The operator testified
that Gifford-Hill�s foreman showed him where the pipe was to be placed and �left
the 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 the
operation of the crane in an unsafe manner. Lidstrom�s argument that a bailment
existed, and it was thereby absolved of liability, is rejected.

Actions
of the Crane Operator

Lidstrom
maintains that it should not be held responsible for an error in judgment by
the crane operator and that an employer cannot be held to the standard of being
an absolute guarantor or to insure that its employees will observe all safety
standards. The Judge rejected this contention, finding that Lidstrom had no
safety program for its crane operators and that it did not issue instructions
for procedures to be taken upon encountering unsafe conditions. He concluded
that Lidstrom could have avoided the hazard with the exercise of reasonable
diligence. On review the Secretary relies on the Judge�s decision.

An
employer is not an insurer under the Act, but he is expected to do what is
realistic to comply with its terms. Hazardous conduct may be considered
preventable 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 those
here except that no lease agreement existed. A brick-truck driver was alone on
a jobsite, and was electrocuted when he positioned his truck with the boom 8
feet under 4800 volt power lines. The court held:

[W]hether a serious
violation of the standard was forseeable with the exercise of reasonable
diligence depends in great part on whether Butler�s employees . . . had
received adequate safety instructions. If Butler failed to give adequate
warning to its employees of the need to stay at least ten feet away from the
power lines, in accordance with the standard 1910.180(j), then an accident
occurring because a driver violated the regulation would seem to have been
forseeable.

�

520 F.2d at 1018.

�

Here
the crane operator received inadequate safety instructions. Although the crane
operator testified that he had been �instructed from time to time� about power
line hazards and that it had been �brought to [his] attention� on different
jobs, Lidstrom�s assistant manager testified:

Q. After you went to
work for the Respondent, Lidstrom, Incorporated, can you tell me what, if any,
safety instructions he [the crane operator] received from the company? What
sort of safety program or instructional program did Lidstrom have for its crane
operator or operators?

�

A. As a crane
operator alone, nothing. We�ve had several jobs where we�ve had weekly or two
weekly or monthly safety meetings that [the crane operator] had been employed
on. We�I suppose we�re negligent in not [having] enough safety meetings at
Mitchell. But he had been cautioned about high voltage power lines.

�

Q. Who cautioned him
and when, if you know of your own knowledge?

�

A. I don�t know of
my own knowledge. Just what I heard here today.

�

The
crane operator�s judgment was not based on orderly and comprehensive safety
training given to him as a crane operator but instead was based upon cautionary
warnings that were almost causal. Plainly, more could have been done in the way
of warnings or instructions. We hold that respondent has violated the cited
standard.

Lidstrom
has 19 employees, and no previous history of violations under the Act. However,
the violation is grave. The $600 penalty assessed by the Judge is appropriate
pursuant to section 17(j) of the Act.

Accordingly,
it is ORDERED that the Judge�s decision is affirmed.

�

FOR THE
COMMISSION:

�

William S.
McLaughlin

Executive
Secretary

Dated: March 30,
1976

BARNAKO,
Chairman, concurring.

I
concur in the disposition and would assign as reason therefor those given by
the Judge in his report. The questions raised by the direction for review were
evidentiary in nature; the Judge weighed the evidence; and it cannot be said
that 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 the
filing of the Judge�s report in this matter.

MORAN,
Commissioner, Dissenting:

The
critical question in affixing liability here is whether respondent was the
employer of the crane operator at the time of the violation. Although we have
held that employment relationships are not to be construed according to
technical concepts of the common law, we have recognized that control over a
worker is an important consideration in ascertaining such relationships. Secretary
v. Gilles & Cotting, Inc ., 4 OSAHRC 1080 (1973), remanded on other
grounds 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 the
paramount consideration. However, it is the right of control, not the exercise
of it, that is governing. See Southeast Contractors, Inc. v. Dunlop , 512
F.2d 675 (5th Cir. 1975), which adopted the dissenting opinion in Secretary
v. Southeast Contractors, Inc ., 8 OSAHRC 285 (1974).

In
this case, the Gifford-Hill Company was in the process of laying pipeline when
it discovered it needed a crane to assist with that work. Gifford-Hill then
contacted respondent about leasing one and respondent assented, sending a crane
and an operator to Gifford-Hill�s worksite. The operator was an experienced
worker who knew of the dangers of powerlines and specifically knew of the existence
of the line at Gifford-Hill�s worksite. Upon the operator�s arrival at the
worksite, Gifford-Hill�s foreman showed him where the pipelines were to be laid
and directed him as to what was to be done. The foreman and another
Gifford-Hill employee signaled the crane operator in the handling of the
concrete pipelines. Apparently neither of them were observing the boom, and the
crane came into contact with the powerline.

Relying
on Gifford-Hill�s inadequate supervision as to the operation of the crane, my colleagues�
conclude that respondent violated the standard. This conclusion is reached
despite 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 and
control of Gifford-Hill and testified that he was ready to comply with the
instructions of Gifford-Hill�s foreman. Additionally, respondent�s manager
testified that he exercised no control or supervision over the operator and
that all such control was in the hands of Gifford-Hill. [4]
Under these circumstances, I find it incredible that my colleagues find
respondent liable for the violation.

The
majority�s reliance upon Frohlick Crane Service, Inc. v. OSAHRC [5]
is misplaced. In affirming the Commission�s decision in the case, the court
concluded that �. . . on the facts before it the Commission did not err
in determining that Frohlick [the lessor] was [the crane operator�s] employer when
the standard was violated.� [6]
In that case, the lessor did actually retain some control over the crane�s
operation. In fact, as shown in Secretary v. Frohlick Crane Service , 9
OSAHRC 531, 532 (1974), agents of the lessor had on occasion inspected jobsites
where its rented cranes were located and assumed control over the operation of
the cranes when they determined that hazards existed. Furthermore, since the
crane 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 crane
operator when the violation occurred. [7]

When,
as here, a respondent has neither exercised control over nor retained the right
to control a �loaned� employee, and the lessee has full control over him, the
respondent is not an employer with respect to that employee. It would be both
unjust and contrary to the intent and purpose of the Act to impose liability on
a respondent under such circumstances.

Commissioner
Cleary 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. As
Commissioner Cleary notes in his opinion, the crane operator, who had 20 years
of experience with cranes, had been advised of the danger of powerlines. Since
he admitted having this knowledge, I am unable to comprehend how that knowledge
could have been improved upon by �orderly and comprehensive safety training.�
Such a conclusion elevates form over substance and disregards the
responsibility of employees to comply with the Act as required by 29 U.S.C. �
654(b).

Since
Chairman Barnako relies on Judge Wienman�s decision, the same is attached
hereto as Appendix A in order that the public may know the basis of this
decision.

�

APPENDIX A

7

�����������

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 3433

LIDSTROM, INC.,

���������������������������������������������
Respondent.

FINAL ORDER DATE: May 10, 1974

�

DECISION AND ORDER

�

APPEARANCES:

JOHN RENICK, ESQUIRE, Office of the
Solicitor United States Department of Labor, Kansas City, Missouri for the
Secretary of Labor

RAYMOND B. HUNKINS, ESQUIRE, Jones,
Jones & Hunkins, P. O. Drawer 531 Wheatland, Wyoming for the Respondent

�

STATEMENT OF THE CASE

Alan
M. Wienman, Judge, OSAHRC:

This is a proceeding pursuant to Section 10 of the
Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter
called the Act) contesting a Citation issued by the Complainant against the
Respondent under the authority vested in Complainant by Section 9(a) of that
Act. The Citation alleged on the basis of an inspection of a workplace situated
near Haig School, Mitchell, Nebraska, under the ownership, operation or control
of Respondent, that the Respondent violated the Act by failing to comply with
an Occupational Safety and Health Standard promulgated by the Secretary of
Labor 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 standard
promulgated by the Secretary by publication in the Federal Register on December
16, 1972 (37 FR 243), and codified in 29 CFR 1926.550(a)(15)(i).

The description of the alleged violation contained on said
Citation states:

�(Near Haig School) A truck crane used to handle and set
irrigation pipe sections was not operated and positioned in such manner that a
part of the crane or crane load would not come nearer than 10 feet from a power
transmission line rated 50 kv. or below. The power transmission line was not
de-energized, nor were there insulating barriers. The employer�s employee was
operating the crane.�

�

The standard as promulgated by the Secretary provides as
follows:

�(15) Except where electrical distribution and transmission
lines have been deenergized and visibly grounded at point of work or where
insulating barriers, not a part of or an attachment to the equipment or
machinery, have been erected to prevent physical contact with the lines,
equipment or machines shall be operated proximate to power lines only in
accordance with the following:

(i) For lines rated 50 kv or below, minimum clearance
between the lines and any part of the crane or load shall be 10 feet;�

�

Pursuant to enforcement procedures set forth in Section 10(a)
of the Act, Respondent was notified by letter dated June 13, 1973 from Warren
Wright, Area Director, Occupational Safety and Health Administration, U.S.
Department of Labor, that he proposed to assess a penalty for the violation
alleged in the amount of $600.00.

After Respondent contested this enforcement action, and a
Complaint and Answer had been filed by the parties, the case came on for
hearing at Gering, Nebraska on October 16, 1973.

THE ISSUES

No jurisdictional questions are in issue, the parties having
stipulated facts sufficient to establish that the Respondent is subject to the
Act, and that the Commission has jurisdiction of the parties and the subject
matter. The primary issue for resolution, therefore, is whether the Respondent
violated the safety standard as alleged in the Citation and, if so, what
penalty is appropriate.

SUMMARY OF THE EVIDENCE AND DISCUSSION

The parties agreed to the essential facts of the fatal
transaction which initiated these proceedings. It was stipulated �that on May
18, 1973, off of Highway 92 approximately three miles west and one mile north
of Haig School the boom of a truck crane owned by the Respondent and being
operated by its operator came within ten feet of overhead electrical power
lines rated below 50 kilovolts and an employee of the Gifford-Hill Company
hooking tongs on a concrete pipe being lifted by the crane at the time was
electrocuted.� (T. 4)

Complainant presented one witness, OSHA Compliance Officer
Uldis Sid Levalds, who investigated the accident on May 30, 1973. He began his
investigation at the office of Gifford-Hill Company in Gering, Nebraska and
later proceeded to the accident site with Glen Farmer, General Manager of
Gifford-Hill. Mr. Farmer identified the site at a place approximately three
miles west and one mile north of the Haig School. Levalds observed power
transmission lines running on the west side of the road with a cross-over at
the accident site. He also observed three scarred areas on the conductors (T.
8, 9).

Mr. Farmer informed Levalds that the crane involved in the
accident 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 for
Lidstrom (T. 12).

Brunson told Levalds that he was familiar with the accident
site, and had been there himself prior to the day of the accident. On May 17th
he had directed the crane operator, Ted Holkan, to take the crane to the site
the following day (T. 12).

Levalds later interviewed Holkan who told him that he once
had been cautioned about working near power transmission lines (T. 13). He was
aware of the presence of power lines on the day of the accident because he had
previously worked in the area. (T. 14)

Levalds also ascertained that the power distribution grid
belonged to the Roosevelt Power District. He made inquiries at their office in
Mitchell and learned that the transmission lines in question carried 7,200
volts (T. 15�16).

Levalds testified that the transmission lines in question
were not deenergized at the time of the accident and no insulating barriers had
been erected. The situation, he stated, exposed the operator of the crane to
the 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 the
site at the time of the accident (T. 29). The Gifford-Hill foreman at the site
was a man named Engelhaupt who was signaling the crane and handling the concrete
pipes (T. 30).

Earl H. Ferguson, Respondent�s Assistant Manager, testified
that Respondent is engaged primarily in concrete work, but does some equipment
rental as a normal part of its business operation (T. 32). At the time of the
accident Respondent was installing structural concrete items in western
Nebraska on a subcontract with Gifford-Hill. (T. 32) Five or six times during
the course of the project Respondent was asked to provide a piece of equipment
or do some extra work for Gifford-Hill (T. 35). On one occasion prior to May
18th Glen Farmer, General Manager of Gifford-Hill, inquired about leasing a
crane to lay some pipe. Ferguson quoted him a rental rate on a crane and told
him to contact Brunson and inform him when the equipment was wanted. If
Respondent was not using the crane that day, Gifford-Hill could have it. On May
17, 1973 Farmer contacted Brunson and said he would like to have the crane the
following day. The next morning Brunson sent the crane over to the location (T.
36). The lease arrangement was an oral agreement, and Ferguson later sent
Gifford-Hill a bill for rental of the crane.

Ferguson testified the lease agreement did not include any
supervision and covered only the operator and the machine; that Lidstrom
exercised no dominion or control or supervision over the crane after it left
for the Gifford-Hill job (T. 41).

On cross-examination Ferguson testified that Brunson, the
foreman who directed the crane to the site, probably knew of the existence of
the power distribution lines and that the crane had worked in the area
previously without accident (T. 47). He stated that Respondent normally did not
provide a signalman when it leased a crane, and he did not know for sure
whether OSHA standards required a qualified individual to direct the operation
of the crane (T. 48). At the time of the oral lease agreement no inquiry was
made to ascertain whether Gifford-Hill would provide a qualified signalman (T.
49). Ferguson �supposed� the crane operator had the authority not to perform acts
which he believed to be unsafe (T. 50).

When asked about the safety program Respondent conducted for
its crane operators, Ferguson replied:

�as a crane operator alone, nothing. We�ve had several jobs
where we have weekly or two weekly or monthly safety meetings that Mr. Holkan
had been employed on. We�I suppose were negligent in not enough safety meetings
in Mitchell. But he had been cautioned about high voltage power lines.� (T.
53�54)

�

Ferguson also testified that he relied upon the supervisory
personnel of the corporation leasing the equipment to have good judgment about
how a crane should be operated in a safe manner. He relied upon that judgment
with respect to the May 18th, 1973 lease (T. 56).

Ted Holkan testified that he had �been around cranes for the
most part of 20 years� and had �operated steady for 12.� He was a member of the
Operating Engineers Union and was familiar with the hazards and safety
precautions to be taken in the operation of a crane. He had been advised
concerning the danger which power lines represent to cranes (T. 63). He was
directed to the jobsite by Brunson. At the site the Gifford-Hill foreman showed
him where the pipe was to be laid and �left the decision up to me as to how to
set the crane up and do it.� Holkan observed the power line in the vicinity. He
placed 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 working
north of the main line. He moved ahead two times and continued the job �but on
this 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�s
always someone that I can rely on to keep me out of tight spots.� But
Respondent provided no spotter on this job, apparently relying on
Gifford-Hill�s crew (T. 64). Holkan did not consider the job on May 18th, 1973
to 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 was
operated in violation of safety regulation 29 CFR 1926.550(a)(15)(i), but
Respondent urges that under the terms of its lease arrangement the work being
done was under the supervision and control of Gifford-Hill and that any hazard
created at the accident site was the result of lack of supervision by the
lessee.

The defense urged by Respondent has been advanced by a number
of crane equipment rental companies in other Commission proceedings. [8]
In all cases the defense has been rejected, Commission decisions uniformly
holding that the Act imposes a nondelegable responsibility upon the employer to
furnish his employees with safe working conditions.

Respondent has a duty under Section 5(a)(2) of the Act to
comply with the occupational safety and health standards promulgated
thereunder. This duty is explicit If an employer creates a hazard by violating
a standard thereby exposing his employees to physical harm he is properly
subject to Citation no matter where the violation takes place. Responsibility
for the violation in this case is clearly traceable to the Respondent.

Respondent�s witness, Earl H. Ferguson, testified that its
foreman on the job, Brunson, knew that electrical power lines were present at
the location he directed the operator to take the crane on May 18, 1973. This
constitutes actual knowledge on the part of Respondent that the crane would be
operated in near proximity to the power lines. Mr. Ferguson also stated that
Respondent had no safety or instructional program for its crane operators. Mr.
Holkan, the crane operator, did testify that he had been cautioned at some time
about working near power lines but in view of Mr. Ferguson�s testimony this
could only have been done on a casual basis. The crane operator was never
furnished any written or verbal instructions about what to do if he encountered
an unsafe situation. Not only did Respondent fail to properly instruct its
crane operator but it also failed to provide either a spotter or signalman or
to see that one was designated by Gifford-Hill to observe the clearance of the
boom. Respondent defends its failures in this regard by claiming it relied on
the judgment of the company to which it leased the crane. This is unacceptable.

That lessors of crane equipment frequently attempt to
disclaim responsibility for providing supervision or assistance to their crane
operators while performing work for a contractor-lessee is only one disquieting
statistic revealed by a study of the cases. We note that during the brief
history of the Act there have been no less than ten litigated proceedings
involving deaths caused by a crane or its load failing to maintain sufficient
clearance from energized electrical transmission lines. [9]

The instant case is yet another tragic illustration of the
universally known fact that cranes and derricks operated in the vicinity of
electric transmission lines are dangerous instrumentalities, so dangerous that
the employer owes the crane operator a greater duty than a mere casual warning
about the hazard involved. In the instant case the operator was provided
neither with supervision nor with assistance in the form of a spotter to help
him judge and maintain the requisite distance between the boom and the
transmission wires. The crane operator did not violate any company rule or
policy in his operation of the crane. Rather, the human error in misjudging the
distance between the boom and the wires was in one sense predictable. We note
that OSHA regulation 29 CFR 1926.550(a)(15)(iv) expressly warns of the
necessity of providing the operator with a signalman to observe clearance where
it is difficult for the operator to maintain the desired clearance by visual
means. Unfortunately, as revealed by Mr. Ferguson�s testimony, the Respondent
had little troubled itself to become familiar with ANSI and OSHA regulations.
(T. 48�49)

The undersigned Judge does not view this as an accident
attributable to an unexpected or unauthorized action on the part of an
experienced employee. Rather, we are persuaded that the record shows
dereliction on the part of Respondent in its failure to provide a safe
workplace for its own employee. As Judge Morris stated in the Frohlick Crane
Service case, the Act itself provides no exculpatory situations where that
duty is not owed: �. . . the duty . . . to furnish a safe place to work is
personal to the employer and cannot be avoided by delegation to another.�

Respondent was familiar with the worksite. Its own crews had
earlier labored in the area to which Holkan returned on May 18th, 1973. With
the exercise of reasonable diligence, a foreseeable hazard could have been
avoided. We find that Complainant has established a prima facie case of a
serious violation of the Act within the meaning of Section 17(k). The proposed
penalty 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 for
the small size of the employer and its excellent safety record prior to the
accident. [10]

FINDINGS OF FACT

1. Respondent Lidstrom, Inc. is a Wyoming corporation with
   its principal office and place of business located in Wheatland, Wyoming where
   it 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 pursuant
   to 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 one
   mile north of the Haig School in Mitchell, Nebraska, the boom of a truck crane
   owned by the Respondent and operated by its operator came within ten feet of
   overhead electrical power lines rated below 50 KV (T. 4, 5).

4. An employee of the Gifford-Hill Company was electrocuted
   while hooking metal tongs on a concrete pipe being lifted by the crane at the
   time 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 were
   insulating barriers erected at the time of the electrocution (T. 24).

6. Respondent�s crane operator was given instructions on May
   17, 1973, by one Brunson, Respondent�s foreman on this job, to take the crane
   to the site where the fatality occurred on May 18, 1973 (T. 12�14).

7. Respondent�s foreman had been working on this job since at
   least December 1972 and was aware that electrical power distribution lines were
   located 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 in
   question to Gifford-Hill for the purpose of laying concrete pipe (T. 36, 37).

9. The crane operator was on the Respondent�s payroll on May
   18, 1973 (T. 46).

10. Respondent did not provide a signalman or spotter to
    direct the operation of the crane on May 18, 1973, and made no inquiry as to
    whether Gifford-Hill would provide an employee for this purpose (T. 48, 49, 62,
    64, 65).

11. Holkan received no instructions, directions or
    supervision from any Gifford-hill employee as to how the crane should be
    operated on May 18, 1973. He was shown where the pipe to be laid was and where
    to lay it (T. 60, 61).

12. Holkan observed the power lines when he arrived at the
    worksite 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 about
    operating a crane near power lines (T. 63). However, Respondent had no safety
    program for its crane operators nor did it issue any instructions, written or
    otherwise, as to procedures to be taken in the event an unsafe situation is
    encountered (T. 54, 55).

14. Holkan was exposed to possible electrocution or severe
    electric shock at the time the boom of the crane he was operating came within
    ten 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 of
    Respondent, its size, and previous safety history were duly considered by the
    undersigned Judge who finds a penalty of $600.00 appropriate under the total
    circumstances.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material hereto was, an
   employer within the meaning of Section 3 of the Occupational Safety and Health
   Act of 1970 and the Safety and Health Regulations for Construction (29 CFR
   1926.1 et seq.).

2. Jurisdiction of this proceeding is conferred upon the
   Occupational Safety and Health Review Commission by Section 10(c) of the Act.

3. Respondent violated Section 5(a)(2) of the Act by failing
   to comply with an occupational safety and health standard promulgated under the
   Act, 29 CFR 1926.550(a)(15)(i), as alleged in the Citation.

4. There was a substantial probability that death or serious
   physical harm would occur as a result of Respondent�s violation of 29 CFR
   1926.550(a)(15)(i). With the exercise of reasonable diligence, Respondent could
   have known of the existence of the violation.

5. The proposed penalty of $600.00 is appropriate for said
   violation, which is deemed to be a serious violation within the meaning of
   Section 17(j) of the Act.

ORDER

Based on the above Findings of Fact and Conclusions of Law,
it is hereby ORDERED that:

1. The Citation for Serious Violation and penalty proposed
   therefor are affirmed in all respects.

�

Alan
M. Wienman

Judge,
OSAHRC

[1] This standard provides:

1926.550 CRANES AND DERRICKS

(a) General requirements

(15) Except where electrical distribution and
transmission lines have been deenergized and visibly grounded at point of work
or where insulating barriers, not a part of or an attachment to the equipment
or machinery, have been erected to prevent physical contact with the lines,
equipment or machines shall be operated proximate to power lines only in
accordance with the following:

(i) For lines rated 50 kv or below, minimum clearance
between the lines and any part of the crane or load shall be 10 feet. . . .

[2] For a full statement of the separate views of the
Commissioners on the exposure issue, see Gilles and Cotting , No. 504
(February 20, 1976).

[3] Section 3 (5) of the Act
defines an employer in part as �a person engaged in a business affecting
commerce who has employees.�

[4]
It should be noted that Gifford-Hill was cited for a violation of the same
standard as a result of this incident. The issuance of such a citation implies
that the complainant believed that Gifford-Hill maintained control over the
crane 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 following
observation:

We fail to see how
requiring several different employers to [comply with the same standard] . . .
fulfills the purposes of the Act any more effectively than requiring only one
employer to do so.

[5] 521 F.2d 628 (10th Cir. 1975).

[6] Id. at 631�632 (emphasis added).

[7] Id. at 632.

[8] Secretary of Labor v. Frohlick Crane Service ,
OSAHRC Docket No. 890; Secretary of Labor v. Weicker Transfer and Storage
Company and Godwin-Bevers Company, Inc ., OSAHRC Docket Nos. 1362 and 1373; Secretary
of 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 and
832; Secretary of Labor v. F. F. Green Construction Company , OSAHRC
Docket No. 1015; Secretary of Labor v. Delmarva Power & Light Company ,
OSAHRC No. 1416; Secretary of Labor v. White Oak Corporation , OSAHRC
Docket No. 1320; Secretary of Labor v. Ames Crane and Rental Service, Inc. ,
OSAHRC Docket No. 2578; Secretary of Labor v. Weicker Transfer and Storage
Company and Godwin-Bevers Company, Inc. , OSAHRC Docket Nos. 1362 and 1373; Secretary
of 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 one
point advanced by Respondent in its Proposed Findings of Fact, namely that
Respondent was neither a �contractor� nor �subcontractor� within the meaning of
Section 1926.13 13 of the Safety and Health Regulations for Construction
contained in Chapter XVII of Title 29. Respondent submitted no brief in which
it clarified any contention that it was not subject to the cited regulations in
its capacity as lessor of the crane. We surmise that Respondent meant to extend
the contention that it was neither a �contractor� nor a �subcontractor� to an
argument that it was not an �employer� as defined in Section 1926.32(j) of
Subpart C of the Safety and Health Regulations for Construction. This section
provides:

(j) �Employer� means contractor or subcontractor
within the meaning of the Act and this part.

The Construction Regulations have been held inapplicable to a company
serving as architect and engineer for a large construction project which had no
construction workers at the jobsite. Sec. of Labor v. Grossman Steel and
Aluminum Corp., et al , OSAHRC Docket Nos. 1127, 1135, 1165 and 1190. In the
instant case Respondent supplied not only construction equipment in the form of
a crane but labor in the person of the crane operator who was admittedly on
Respondent�s payroll on May 18, 1973. It would appear therefore that Respondent
was a �subcontractor� as defined in Section 1926.13(c) which states, in
pertinent part:

(c) The term �subcontractor� under Section 107 is
considered to mean a person who agrees to perform any part of the labor or
material 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 a
contractor would not, in and of itself, be considered a �subcontractor� for
purposes of this part.