Baytown Construction Company, Inc.

Plain-English summary

Baytown employees used a truck crane to unload pipe near a 7,620-volt overhead power line. The crane cable and suspended pipe became energized, and an employee handling the pipe was electrocuted. Testimony about loud electrical discharges, burn damage to the cable, the crane's contact with the line after the accident, and the limited arcing distance at that voltage established that the crane came within the required 10-foot clearance. The Commission rejected Baytown's challenge to the denial of a continuance because the company did not show prejudice and declined an offered later hearing for missing witnesses. It also rejected an unpreventable-misconduct theory because the foreman participated in the operation and newly hired workers had not received adequate crane and power-line training. The Commission affirmed the violation as serious and assessed a $640 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.180(i)(5)(i) and 1910.180(j)(1)(i)
• Outcome: Serious crane-clearance violation affirmed with a $640 penalty; the fire-extinguisher item remained vacated.
• Key point: General safety meetings do not establish unpreventable misconduct when employees lack effective instruction for the specific power-line hazard at the worksite.

Full text (OSHRC public release)

Docket No. 88-2912-S

SECRETARY OF LABOR,

Complainant.

v.

BAYTOWN CONSTRUCTION COMPANY, INC.,

Respondent.

OSHRC Docket No. 88-2912-S

DECISION

Before: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

Bayton Construction Company ("Baytown") is a
construction and pipe-laying company headquartered in Nederland, Texas. Following the
investigation of a fatality at one of its workplaces, the Occupational Safety and Health
Administration ("OSHA") issued Baytown a citation alleging a serious violation
of 29 C.F.R. � 1910.180(j)(1)(i),[[1]] for its failure to maintain at least 10 feet of
clearance between a truck crane and powerline. The Secretary proposed a penalty of $640
for this violation.[[2]] Review Commission Administrative Law Judge Louis G. LaVecchia
affirmed the citation as serious and assessed the $640 penalty. For the reasons set forth
below, we affirm a serious violation and assess a penalty of $640.

I. Background

On October 27, 1988, four of Bayton's employees were moving
pipe of various sizes from its pipefitting shop to an empty lot it had rented across the
street. The pipe was loaded onto the back of a flatbed trailer and then driven across the
street, where employees, using a truck crane, unloaded the pipe and placed it on skids. A
7620-volt powerline, stung approximately 20 feet above the ground, ran across the back of
the property.

The truck crane used to unload the pipe had a 30-foot boom. The
crane's cab permitted visibility straight ahead or from its open sides. However, the
plastic window at the top of the cab was opaque, so that the crane operator effectively
had no overhead vision. Thus, The operator could not see an overhead powerline during
normal operation "unless he leaned outside the cab and looked up."

At approximately 1:30p.m., employees Jerry Mitcham, [[3]] Bryan
Shoemaker, Larry Marse, and Robert Tatum began unloading a second load of pipe from the
truck. Mitcham was the foreman, Shoemaker was a "shop laborer," and Marse and
Tatum were laborers who had been employed by Baytown for approximately one week. Mitcham
operated the truck crane to hoist the pipe, while Marse and Shoemaker stood on the flatbed
trailer and connected the pipe on the trailer to the cable on the crane. After the pipe
was connected, the crane would pick up the pipe and swing it towards the skids on the
ground. Tatum then directed and positioned the pipe while it was being lowered onto the
skids and unhooked the pipe from the cable when the pipe was on the ground. OSHA
Compliance Officer Russ Elveston testified that Mitcham told Tatum had not received any
such instruction. Marse stated that none of the laborers was paying attention to the
crane's distance from the powerline because "[i]t was 2:00 in the day and we were
fixing to get off work in about another hour." Marse, Tatum, and Shoemaker had never
received training concerning the operation of cranes around powerlines. Marse also
testified that Tatum did not give any warnings to Mitcham regarding the distance of the
crane from the powerline that afternoon.

While the employees were unloading the second load of pipe, the
truck crane's cable became energized by the overhead powerline. The cable in turn
energized the attached pipe, which transmitted the electricity to Tatum, who was
electrocuted. Although no one actually witnessed Tatum's electrocution, Marse testified
that he heard the transformer "pop" and also heard Tatum yell; he then looked up
and saw the electricity knock Tatum off the pipe. Shoemaker saw Mitcham "yell for
help and run off." Marse and Shoemaker then ran to help Tatum. During the employees'
efforts to save Tatum, Marse saw the pipe swing and bring the cable into contact with the
powerline, causing the transformer to "pop" a second time. Shoemaker could not
determine if the crane was within ten feet of the powerline because"we were looking
into the sun."[[4]]

The truck crane was left in this position, touching the
energized powerline, until a Gulf States Utilities ("Gulf States") employee,
Steve Winckler, arrived at the scene to deenergize the powerline some time later. Winckler
testified that he saw the boom against the wire and heard the line "buzzing"
from the contact. he also stated that Baytown's employees told him that the crane had not
been moved since the accident because the power wire was still touching the boom and
"buzzing."

Four days after the accident, Compliance Officer Elveston
inspected the workplace and interviewed several witnesses about the circumstances leading
up to the fatality. Elveston testified that the truck crane's boom was fully extended and
on the ground parallel to the powerline, with "fresh burn marks" on the wire
rope approximately one foot below the boom at the end of the crane. He also noted that
several strands of the wire rope were completely burned through. As a result of Elveston's
investigation, OSHA issued a citation to Baytown alleging that it committed a serious
violation of 29 C.F.R. � 1910.180(j)(1)(i) by failing to maintain at least 10 feet of
clearance between the truck crane and the 7620-volt powerline.

II. Discussion

A. Whether the Administrative Law Judge erred in denying
Baytown's January 19, 1990 Motion for Continuance.

A hearing was initially set for September 26. 1989. It was
continued twice: first to December 20, 1989, then to January 23, 1990. On Friday, January
19, 1990, four days before the hearing. Baytown's counsel moved for a third continuance,
citing a conflicting courtroom obligation in the District Court of Texas in Galveston. In
support of its motion, Baytown asserted that three of its witnesses, as well as its lead
counsel, would be required to appear for trial on January 22, 1990 in Galveston. It
further asserted that it had requested a continuance in the Galveston case as well. But
that the request had been denied. Judge LaVecchia denied the motion.

At the January 23 hearing, Baytown's counsel asked the judge to
reconsider his denial of its motion. The judge again denied the motion, but informed
Baytown that they would "go as far as we can today" with the available witnesses
and then "reschedule the rest of the case for further hearing at some date which
might be satisfactory to all the parties" in order to take testimony from the
remaining witnesses. The attorney for Baytown objected, claiming that "the damage
will already be done to Baytown Construction."

On review, Baytown argues that its attorney of record, Kerwin
B. Stone, 'was unexpectedly notified that he and Respondent's key [managerial] personnel
would have to appear in Galveston County for trial during the week of January 22,
1990." As a result of the judge's failure to grant a continuance, Baytown argues that
its "attorney of record was denied the opportunity to take advantage of his research
and extensive preparation because he was denied the opportunity to be present at the OSHA
trial." Baytown also argues that "three key personnel"--the president,
operations manager, and safety director of Baytown-would have made "valuable input at
the OSHA trial-not only through testimony, but also through consultation and development
of strategy with Respondent's attorney during the OSHA trial." As a result, Baytown
claims the denial of its motion for continuance is an abuse of discretion by the judge
which "deprived [Baytown] of due process of law and a fair trial."

The Secretary responds by arguing that, contrary to Baytown's
claim its corporate officers could have been present. The Secretary cites a letter from
the judge of the district court in Galveston which states that the case was settled on
January 22 and that no proceedings took place on January 23.[[5]] In addition, the
Secretary argues "Baytown cannot complain of the lack of testimony from witnesses
when its own counsel declined an additional hearing precisely for the purpose of gathering
that testimony." As a result the Secretary claims that Baytown failed to prove that
it was prejudiced by the judge's failure to grant the continuance.

In its reply brief, Baytown argues that its counsel and
witnesses remained in Galveston because its counsel believed that they were required to.
Baytown notes that a letter and docket sheet attached to the Secretary's brief, used by
the Secretary to support her argument that the Galveston hearing had concluded on the
prior day, are not part of the record of the trial.

ii.

The decision to grant or deny a continuance is a matter for the
sound discretion of the trial judge. Harmon v. Grande Tire Co ., 821 F.2d 252, 256
(5th Cir. M); Harvey V. Andrist , 754 F.2d 569, 572 (5th Cir.), cerr. denied,
471 U.S. 1126 (1985). Baytown claims that the judge's denial of the continuance violated
its due process rights. In Ungar v. Sarafire , 376 U.S. 575, 589 (1964), the
Supreme Court held that "[t]here are no mechanical tests for deciding when a denial
of a continuance is so arbitrary as to violate due process. The answer must be found in
the circumstances presented in every case, particularly in the reasons presented to the
trial judge at the time the request is denied."

Baytown complains that its attorney of record was "'denied
the opportunity" to participate in the hearing and that Baytown was denied the
benefit of his expertise. However, a Party in a lawsuit does not have an absolute right to
any counsel he desires. Wynn v. Eriksson , 889 F.2d 644, 646 (5th Cir. 1989)(Fifth
Circuit does not recognize a constitutional right of counsel of choice in civil
litigation). "Even where the desired counsel possesses special expertise, a court
may, consistent with due process, refuse a continuance to accommodate counsel's trial
schedules." Hodge v. Hodge, 507 F.2d 87, 90 n.10 (3d Cir. 1975).

Baytown further claims that the judge abused his discretion in
not granting a continuance so that the missing corporate representatives could testify at
the hearing and assist Its counsel in developing trial strategy during the hearing.[[6]]
To establish that the judge. abused his discretion, Baytown "must demonstrate that
the denial of a continuance severely prejudiced" it. United States v. Shaw. 920
F.2d 1225, 1230 (5th Cir. 1991). However, Baytown has failed to make any showing of
prejudice resulting from the absence of its witnesses. See Johnston v. Harris County
Flood Control Dist., 869 F.2d 1565, 1571-72 (5th Cir. 1989)(no abuse of discretion in
not granting a motion for continuance in part because moving party had not shown that
relying on the assistance of other defendants when one defendant could not attend created
any prejudice). It has not even suggested what testimony these witnesses would have given
at the hearing. Baytown also failed to accept the judge's reasonable offer to schedule an
additional hearing "at some date which might be satisfactory to all the parties"
in order to obtain the testimony of the absent witnesses. Based on then factors, we
conclude that the judge did not abuse his discretion in denying Baytown's Motion for
Continuance.

B. Whether the Administrative Law Judge erred in ruling
that Baytown violated 29 C.F.R � 1910.180(j)(1)(i) when its crane was operated so as to
come within 10 feet of a powerline rated 50 kv. or below?

i.

In addition to relying on the circumstances of the accident to
prove that Baytown allowed its crane to come closer than 10 feet to the powerline, the
Secretary also relied on the testimony of Robert Summers, a claims director at Gulf States
who has worked there for 40 years, and qualified as an expert without objection. Summers
testified that a 7620-volt powerline cannot arc over distances greater than half an inch.
Even allowing a slight additional margin of protection for weather conditions, Summers
stated that Gulf States sets gaps of five-eighths of an inch between its 7620-volt
powerlines and its ground wires to protect its equipment from lightning, a gap adequate to
prevent the lines" arcing at that voltage.

Baytown argues that the evidence presented was insufficient to
support the charge against it. It contends that the Judge's reliance upon Compliance
Officer Elveston's testimony is misplaced because he "could not even remember what
year he performed the investigation" nor "remember the names of the personnel
whom he interviewed concerning the accident." Although Baytown admits that
"simplified proceedings were requested," it argues that "[t]he Judge has
abused his discretion by relying so heavily on the hearsay testimony of the compliance
officer."[[7]] Baytown argues that "[n]o witness testified and no credible
evidence was presented to show that the crane was operated within ten feet of the wires at
or before the time of the accident." It further claims that the judge's reliance on
past opinions by the Commission discussing the physics of electricity is "an abuse of
discretion."

Baytown argues that the absence of its own expert
testimony--due, it claims, to the exclusion of its attorney of record and principal
witnesses turn the hearing--is immaterial because "the Secretary failed to carry its
own burden of proof by presenting competent testimony to even raise an issue."
Baytown insists that Winckler, the Gulf States serviceman who was called to the accident
to cut power to the wire, "is tainted with bias and prejudice in favor of the
electric company which employs him" because Gulf States is involved in a third party
lawsuit brought by the decedent's heirs. Baytown makes the same argument against Summers,
the Secretary's expert witness who also works for Gulf States.

The Secretary responds that "[t]he judge correctly found
that the crane had been operated within ten feet of the 7620-volt powerline, and was also
correct in noting that 'no other plausible explanation' for the accident could be
advanced." She notes the expert testimony at the hearing and in previous Commission
decisions, establishing that electricity from a 7620-volt line cannot arc over distances
greater than half an inch. Thus, she concludes, for Baytown's crane to have become
energized it must have come within half an inch of the powerline.

As to Baytown's argument that no credible testimony establishes
the contact of the crane with the powerline, the Secretary argues that "because the
arcing distance of electricity is a fact derived from principles of physics, no eyewitness
testimony is needed to establish it, just as no eyewitness testimony would be needed to
establish the law of gravity." The Secretary notes that there are three direct
observations which support the argument that the crane came into contact with the
powerline: Marse testified that he heard a "pop" when the accident occurred and
heard it again when he actually saw the crane touch the wire; the Gulf States serviceman
saw the crane touching the powerline, and was told it had not been moved since the
accident; and the compliance officer saw burn marks on the crane cable from electrical
heat so intense that it melted some of the wires.

ii.

The judge found that Marse's and Shoemaker's testimony that
they heard loud "pops" during the accident supported the conclusion that the
crane or its load contacted the line twice: once when Tatum was electrocuted and again
after the accident. The judge further relied on Danco Constr. Co. v. OSHRC, 586
F.2d 1243 (8th Cir, 1978), aff'g 5 BNA OSHC 2043, 1977-78 CCH OSHD �22,280 (No. 1-1847,
1977). In Danco, OSHA cited the employer for operating a crane within ten feet of
an energized powerline in violation of 29 C.F.R. � 1926.550(a)(15)(i), after two
employees handling a section of pipe attached to a crane's boom were injured, one fatally,
when the boom contacted overhead powerlines. The Eighth Circuit noted that although it was
not established whether the crane actually touched the electric lines or merely came
sufficiently close to allow the electricity to arc from the lines to the boom, there was
sufficient evidence to support the Commission's finding that the boom came within at least
ten feet of the lines in violation of the standard. Id. at 1244, n.3.

We agree with the judge's reasoning. The loud pops heard by the
employee witnesses, the testimony that the crane contacted the powerline after the
accident, the burn marks on the crane cable and the expert testimony that electricity of
this voltage arcs no more than half an inch all clearly establish that Baytown failed to
comply with the cited standard by permitting its crane to come within 10 feet of a
powerline containing less than 50,000 volts.

Baytown claims that Winckler and Summers were biased against
it, but it has not disputed the testimony of either witness or claimed that it was
inaccurate. Nor has Baytown advanced a theory of the accident that is at odds with that
suggested by Summers' testimony. In the circumstances, we can only conclude that, assuming
argundo, if we were to find some merit to Baytown's allegations, it would not affect our
finding that Baytown was not in compliance. We therefore find that Baytown failed to
comply with section 1910.180(j)(1)(i).

C. Whether Baytown established that the violation of 29 C.F.R. � 1910.180(j)(1)(i)
was a result of the unpreventable employee misconduct on the part of the crane operator?

i.

By claiming that the Violation resulted from unpreventable
employee misconduct, Baytown seeks to rebut the Secretary's prima facie showing of
knowledge. The Secretary made that showing here by establishing Baytown's foreman
Mitcham's participation in and knowledge of the violation. Such knowledge is imputable to
Baytown unless Baytown can rebut that showing by demonstrating that the foreman's failure
to follow proper procedures was unpreventable. Consolidated Freightways Corp., 15
BNA OSHC 1317, 1321, 1991 CCH OSHD �29,500, pp. 39,809-10 (No. 86-351, 1991). In
particular, Baytown must establish that it had relevant work rules that it adequately
communicated and effectively enforced. Id. See also H. B. Zachry Co. v. OSHRC ,
638 F-2d 812, 818 (5th Cir. 1981). Evidence that a supervisor was involved in the
misconduct is strong evidence that the employer's safety program was lax. Daniel
Constr. Co., 10 BNA OSHC 1549, 1552 1982 CCH OSHD 126,027, p. 32,672 (No. 16265,
1982).

The judge concluded that Baytown did not actually make an
"unpreventable employee misconduct" defense, but that even if it had, it failed
because it did not show that it took all reasonable precautions to prevent the violation.
We conclude that the judge was correct. Baytown's safety program consisted principally of
safety meetings held regularly once every three weeks. Crane operator Mitcham had signed
the attendance list at a September 1988 meeting that covered the necessity of maintaining
a 10-foot distance from powerlines during crane operation. Mitcham had also attended a
July 1987 meeting that addressed the need to use "spotters," or signal men on
the ground, when handling and loading pipes. After the accident, the compliance officer
testified that Mitcham told him that "while he had some training, he did not recall
any specifics about distances and voltages" but that he should "basically...keep
the crane out of the powerline." The compliance officer further testified that
Mitcham said that he told Tatum to watch the powerline and to help move the pipe into
position. Marse and Tatum, who had been hired approximately one week before the accident,
had never been to one of Baytown's regular safety meetings, and had not received training
concerning cranes, powerlines, or the responsibilities of a spotter. Their only safety
training consisted of general admonitions to wear hardhats and gloves, and keep their
hands out of pipes. Also, Shoemaker had never been instructed about cranes and powerlines.

ii.

Although Baytown had a safety Program and work rules requiring
cranes to maintain. A minimum of ten feet clearance from energized powerlines, the
evidence demonstrates that the rules were inadequately communicated. Of the four employees
who were working with the truck crane, only the foreman, Mitcham, had received training
concerning cranes, powerlines, or when to use a spotter. Despite this training, even
Mitcham only remembered to "basically ... keep the crane out of the powerline."
We therefore conclude that Baytown failed to establish that the violation of 29 C.F.R.
�1910.180(j)(1)(i) was the result of unpreventable employee misconduct.

Ill. Penalty

Based on the penalty factors enumerated in section 17(j), 29
U.S.C. � 666(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. � 651-678,
we find that the $640 penalty proposed by the Secretary is appropriate.

IV.Order

Accordingly, we affirm the serious violation of section
1910.180(j)(1)(i) and assess a penalty of $640.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: June 18, 1992

SECRETARY OF LABOR,

Complainant,

v.

BAYTOWN CONSTRUCTION COMPANY, INC.,

Respondent.

OSHRC Docket No. 88-2912-S

APPEARANCES:

Jerome Kearney, Esquire

Dallas, Texas

For the Complainant.

Kerwin B. Stone, Esquire

Tom, Folse, Esquire

Beaumont, Texas

For the Respondent.

DECISION AND ORDER

LAVECCHIA, Judge:

This is a proceeding brought before the Occupational Safety and
Health Review Commission ("the Commission") pursuant to Section 10 of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq ("the Act").
Respondent contests an alleged serious violation of 29 C.F.R. 1910.180(j)(1)(i), for which
a penalty of $640.00 was proposed, and an alleged "other than serious" violation
of 29 C.F.R. 1910.180(i)(5)(i), for which no penalty was proposed.

OSHA conducted an investigation of Respondent's worksite at
Nederland, Texas on October 31, 1988 after a fatal accident which occurred on October 27,
1988. As a result of the investigation, OSHA issued the two aforementioned citations on
November 29, 1983. Respondent timely contested the subject citations an, requested
simplified proceedings. No additional persons desired to intervene in this matter.

The Secretary alleged that Respondent failed to comply with 29
C.F.R. 1910.180(j)(1)(i) as follows:

A minimum clearance of 10 feet was not maintained between
part(s) of truck crane(s) or load(s) and energized electric power lines rated 50 kv. or
below which were not protected by insulating barriers:

In the Pipe Yard where the truck crane (Cherry Picker), #3792,
was operated well within 10 feet of the 7620 volt power line while unloading pipe from a
trailer, at which time a fatal accident did occur on or about October 27, 1988.

The Secretary also alleged a violation of 29 C.F.R.
1910.180(i)(5)(i) as follows:

A carbon dioxide, dry chemical, or equivalent fire extinguisher
was not kept in the cab or the vicinity of the truck cranes:

In the truck crane (Cherry Picker ID #3792) located in the Pipe
Yard.

Because the evidence did not sustain a finding of a violation
of 29 C.F.R. 1910.180(1)(5)(1), that citation was dismissed at the hearing. Discussion of
the alleged violation of 29 C.F.R. 1910.180(j)(1)(i) follows.

The Evidence

Russ Elveston testified. He is a compliance officer with 12
years of OSHA experience, a bachelor's degree in electrical engineering and a master's
degree in engineering.

His investigation revealed that at the time of the accident, four of Respondent's
employees were engaged in a pipe-unloading project. Foreman Jerry Mitcham was operating
was operating Respondent's cherry-picker crane in close proximity to an approximately
7,000 volt power line which ran along the back of the worksite. Larry Marse and Bryan
Shoemaker were on a trailer connecting pipe to a wire spreader that was attached to the
crane. The crane swung the pipe over to "skids" on the ground where Michael
Tatum directed and positioned the pipe. Mitcham apparently also told Tatum to watch the
overhead power lines. As the crane swung the pipe over to the skids, it contacted a power
line. The current passed through the crane's wire rope and electrocuted Tatum as he
handled the pipe. (Tr. 12, 17-19, 27).

When Elveston inspected the site, he saw the crane with its
boom laid down parallel to the power lines. His measurement of the crane's boom showed
that it was approximately 30 feet long, and a measurement taken from the nearest power
line to the crane itself was approximately 20 feet. The boom had not been retracted since
the accident. Elveston took Exhibit C-5, which showed the fresh burn marks he observed on
the crane cables during his inspection; the marks indicated a high-voltage burn. He also
took Exhibit C-4, which showed the opaque window at the top of the crane's cab. Because of
the window's poor visibility, the operator could not have seen the power lines through the
window; he would have had to lean out of the cab to see the lines. (Tr. 12, 14-16, 24-25).

Marse and Shoemaker told Elveston they had not received any
specific information about maintaining distances between cranes and power lines. Mitcham
told Elveston that while he had some training about keeping cranes out of power lines, he
did not remember anything specific about distances and voltages. (Tr. 20).

Elveston recommended the citation because his investigation
indicated that Respondent's crane had operated within ten feet of an energized electric
line. He characterized the violation as serious because of the likelihood that contact
with the line would cause severe injury or death. (Tr. 17, 20-21).

Steve Winckler testified. He is a first class serviceman,
electrical trouble-shooter, with Gulf State Utilities ("GSU"). He received a
call that Respondent's crane was "in the line and it was still hot." He went to
the site, saw the boom stuck in the wire and heard the line buzzing. He deenergized the
power line. Because the crane was still touching the wire, no one had moved the crane
since the accident; further, no one moved the crane while he was there. (Tr. 30-32,
39-40).

Larry Marse testified that at the time of the accident he and
Michael Tatum had only been working for Respondent for one week; they were close friends
and had been hired on the same day. They were given general safety instructions, but
received no instructions about maintaining distance between cranes and power lines. Since
the accident, Marse has received training about cranes and power lines. (Tr. 41-45).

Marse said Tatum was not a "spotter" on the day of
the accident. Neither he nor Tatum warned Mitcham that the crane was getting too close to
the power lines because they were not paying attention to it. Marse heard Tatum yell; when
he looked up, he saw the electricity throw Tatum from the pipe. He and Shoemaker ran to
Tatum and Shoemaker grabbed the pipe. Marse told Shoemaker to let go of the pipe; when he
did, the pipe swung into the power line and there was a loud pop. Marse said this was the
second pop he heard, and that the load on the crane caused it to swing back and forth.
Although Marse did not see the crane swing into the wire when Tatum was electrocuted, he
said "[i]t touched the wire second time." (Tr. 43, 45, 46-48).

Robert Summers, the Secretary's expert witness, testified that
he has been a claims director with GSU since 1976. He has worked for GSU for 40 years and
worked his way up though the ranks to his present position. Because of his work
experience, he is familiar with the properties and dynamics of electricity. Since GSU
owned the lines involved in the accident, Summers inspected the cite as part of GSU's
investigation. He said Exhibits C-1 and C-2 accurately depicted the lines at the site. He
described the lines as a "three-phase line," with three hot wires and a ground
wire. The voltage between the ground wire and any hot wire was 7,620 volts, a standard
voltage, and the voltage between two hot wires was 13,200. (Tr. 49-52, 54, 56).

Summers was familiar with the OSHA standard which forbids
operating a crane within ton feet of an energized power line. He stated that arcing is a
phenomenon that occurs when a grounded source, such as a crane, comes within a very small
distance of an energized line and causes the electricity to "arc" or track from
the hot wire to the ground source; the higher the voltage, the greater the potential for
arcing. He said it is a "known factor" that a ground potential can get as close
as 1/2" to a 7,620 volt line before arcing will occur. Because weather conditions
might make a very slight difference, GSU sets 5/80" "gaps" between its
7,620 volt lines and its ground wires to protect it's equipment from lightning. Weather
conditions can have a greater effect on arcing in very high voltage lines, such as a
69,000 volt line. (Tr. 53-57).

Summers testified that after having heard all of the testimony
about the accident, he was convinced it was impossible for electricity from a 7,620 volt
line to arc ton feet or even five feet. The only instances he had known electricity to arc
as much as four or six feet were situations where the grounded source had actually hit a
power line. In those cases, as the grounded source falls away from the line it draws an
arc away from the line because of the ionization of the air. Summers said that if arcing
had occurred in this case, the intense shock that descendent received could have caused
the pipe to swing violently. (Tr. 52, 55-56, 58).

Martha Shoemaker testified she was Respondent's risk manager
and bonding specialist, that she was familiar with Respondent's safety programs and that
she assisted Ann Blackwell, Respondent's safety director, with safety seminars. Respondent
holds safety meetings about every three weeks and notifies employees about the meetings.
Respondent also gives safety seminars and invites its employees and supervisors.
Respondent keeps records of the employees who attend safety meetings. Jerry Mitcham
attended a 9/28/88 safety meeting which addressed the OSHA regulation prohibiting
operating cranes within ten feet of power lines. He also attended a 7/1/87 meeting which
addressed the need to have a "signal person" when handling pipe. on the basis of
the safety meetings Mitcham had attended, Shoemaker believed he was well trained; to her
knowledge, he had never been cited for performing work unsafely. (Tr. 60-65, 68-70, 73,
79, Exhibit R-1, Exhibit R-2).

Since Marse and Tatum were newly hired, they had not been to
any of Respondent's formal safety meetings. Shoemaker did not know if they had received
instructions about maintaining distance between cranes and power lines.

Employees receive a "safety indoctrination," which is a basic overview of
safety, their first day of work. Respondent expects employees to follow safety
instructions and constantly advises that if they have any doubt, they should not proceed
without checking with their foreman or the safety director. Shoemaker said a
"spotter" was responsible for watching the wire and the pipe, and that if Tatum
had any doubt, he should not have proceeded (Tr. 75-76, 79-80, 83-86).

Shoemaker said the accident occurred around 1:00 or 1:30 p.m.
in a rented yard across the street from Respondent's home office. She had been present
when John Brunette, the pipe superintendent, asked Ann Blackwell if he could use the yard
to store pipe. As soon as she heard about the accident, Shoemaker went across the street
to the site. The sun's glare was so intense she couldn't actually look up at the power
lines. (Tr. 76-78, 82).

Bryan Shoemaker testified that he assisted with the pipe-moving
project.  He did not realize an accident had occurred until he heard a loud pop and
Mitcham yelling for help.  He saw Tatum lying on the ground underneath the suspended
pipe; he pulled Tatum away from the pipe and administered first aid. (Tr. 87-90).

Shoemaker was not looking at the power lines when the accident
occurred and didn't see if the crane or cables contacted the wire. Because they were
"looking into the sun" neither he nor anyone else knew if the crane was within
ten feet of the power line. Tatum did not warn the operator about the crane's proximity to
the power lines, nor did anyone else. Shoemaker recalled that he had told Elveston he
thought the crane had gotten into the lines. (Tr. 89-92).

Shoemaker said they had successfully moved a load of pipe
before lunch and that they were on their second load when the accident occurred. He said
if the crane was moved at all between loads, "it was slight, because it was still in
the same general location." He acknowledged that C-1 depicted the scene where they
were unloading pipe when the accident occurred. (Tr. 90, 92, 94).

John Brunette testified that he was Respondent's pipe division
manager and that he had held the same position at the time of the accident. He generally
restricts new hires to working in the pipe shop area for about 45 days so that he has an
opportunity to observe whether they work safely. Brunette said that a "spotter"
in this case would have been responsible for watching the distance between the crane and
the overhead lines. (Tr. 95, 98, 100).

Since Brunette was not present when the accident occurred, he
didn't really know what happened. He did not know if Tatum had been designated as
"spotter" but felt that if Tatum was given the responsibility and instructed
about the job, he was intelligent enough to carry out the duties.

Brunette knew Tatum because they lived in the same community and Tatum graduated with one
of his sons. He also knew Mitcham and considered him a safety-conscious employee. (Tr. 91,
99, 101).

The Merits

29 C.F.R. 1926.180(j)(1)(i) provides as follows:

Operating near electric power lines- (1) Clearances.
Except where the 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 crane have been erected to prevent physical 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 lines and any part of the crane or load shall be 10 feet.

Respondent contends that the Secretary has not met her burden
of proof in this case because the evidence does not support a finding of a violation of
1910.180(j)(1)(i). Conceding that an accident did take place, Respondent points out that
the Secretary has the burden of proving not that an accident occurred, but that a
violation of an OSHA regulation occurred.

Respondent correctly notes that the Secretary has the burden of
proving a violation of an OSHA regulation in proceedings before the Commission. However,
to meet this burden, the Secretary need not establish a fact with absolute certainty. She
need only prove by a preponderance of the evidence that a violation occurred. Astra
Pharmaceutical Products, Inc., 9 OSHC (BNA) 2126 (1981). The Commission has held that
a preponderance of the evidence is "that quantum of evidence which is sufficient to
convince the trier of fact that the facts asserted by a proponent are more probably true
than false." Id. at 2131, n. 17.

Respondent argues that because no credible witness established
that it operated the cherry-picker crane within ten feet of the power line, the evidence
does not support a violation of 1910.180(j)(1)(i). However, Respondent's argument must
fail, since the Secretary's evidence in this case meets the standard enunciated in Astra.

Elveston's investigation indicated the crane or its load had
contacted the power line. He observed fresh burn marks on the crane's cable, indicating a
high-voltage burn. His measurement of the crane's boom and the distance from the crane to
the nearest power line revealed the crane was close enough to have contacted the line.
While not conclusive, Elveston's testimony tends to demonstrate a violation, particularly
when considered with other evidence.

Winckler's testimony demonstrated the crane's boom was in the
line and the line: was energized not only when he arrived at the scene but also when he
received a call about the line. He confirmed the crane had not been moved before his
arrival and was not moved while he was at the site.

Summers' testimony revealed that the lines involved in the
accident carried 7,620 volts of electricity. He stated that it is a "known
factor" that electricity from a 7,620 volt line cannot arc unless a ground potential
is within 1/2" of the line. After hearing all of the evidence, his opinion was that
it was impossible for electricity from a 7,620 volt line to arc ten feet or even five
feet, unless the ground potential had first contacted the Iine.

Marse testified that he heard two "pops" and that the
second pop was when the pipe swung into the line after the accident. Marse also testified
the crane or cable "touched the wire the second time." Bryan Shoemaker said he
realized an accident had occurred when he heard a loud pop and Mitcham yelling. Although
neither Marse nor Shoemaker saw the crane contact the wire at the time of the accident,
their testimony taken together supports the conclusion that the crane or its load
contacted the line twice: once when Tatum was electrocuted and again after the accident.
Shoemaker also confirmed that Exhibit C-1, showing the crane in close proximity to the
power line, depicted the scene where they were unloading pipe when the accident occurred.

The facts in Danco Construction Company, 5 OSHC (BNA)
2043 (1977), aff'd , 568 F.2d 1243, 6 OSHC (BNA) 2039 (8th Cir. 1978), are
substantially similar to the facts in this case. In Danco, OSHA cited the employer
for operating a crane within ten feet of an energized power line in violation of
1926.550(a)(15)(i). Danco's employees were engaged in unloading pipe from a truck and
stacking it on "skids." Bright sunlight shining directly in the crane operator's
face prevented him from seeing the overhead electric lines. Two men were handling a
section of pipe which was attached to the crane's boom; one was killed and one was injured
when the boom contacted the lines. The Eighth Circuit noted that it was not established
whether the crane's boom actually touched the lines or merely was close enough for
electricity to arc from the line to the boom. The Court nevertheless held there was
"substantial evidence in the record to support the Commission's finding that the boom
came within at least ten feet of the lines in violation of 29 C.F.R.
1926.550(a)(15)(i)." Danco, 6 OSHC (BNA) at 2040, n.3.

The evidence in this case demonstrates a violation of
1910.180(j)(1)(i). Once the Secretary has established a prima facie case of noncompliance
with a standard, the burden shifts to the employer to either rebut the Secretary's
evidence or to prove an affirmative defense. York Heel of Maine, Inc. , 9 OSHC (BNA)
1803 (1981); Hughes Brothers, Inc ., 6 OSHC (BNA) 1830 (1978). As the following will
show, Respondent does neither.

Respondent urges that Summers is a biased witness and his
testimony should be given little weight, since he is a GSU employee and GSU is a primary
defendant in a third party lawsuit regarding Michael Tatum's death. Standing alone,
Respondent's argument might have some merit. However, Commission cases support Summers'
testimony.

In Butler Lime and Cement Company , 5 OSHC (BNA) 1370, 1373, Commissioner Moran's
dissent pointed out that the maximum arcing distance for a 50,000 volt power line under
standard atmospheric conditions was .668 of an inch, and that a 4,800 volt line would arc
a "significantly lesser distance." Commissioner Moran also noted that
"[s]uch small arcing distances makes it clear that the purpose of the safety distance
factor specified in ... [1910.180(j)(1)(i)] ... is to protect against inadvertent error in
manipulating the boom, rather than the possibility of arcing." Id. at 1373. See
also Kent Nowlin Construction. Inc., 7 OSHC (BNA) 1171, OSHRC Docket No. 77-4471
(Judge Blythe, Dec. 1973) (available on WESTLAW, FLB-OSRC Database), aff'd , 648
F.2d 1278, 9 OSHC (BNA) 1709 (10th Cir. 1981).

Respondent implies that electricity could have arced over ten
feet from the line, thus causing the accident. However, Summers' testimony and
Commissioner Moran's comments in Butler soundly refute any notion that arcing
occurred in the manner Respondent suggests. Respondent presented no expert testimony at
the hearing and cites no cases in support of its arcing theory; therefore, its theory must
fail. Respondent does, however, have other arguments.

Respondent urges that if the crane or its load contacted the
power line at all, it was only after the accident and occurred as a result of the force of
the shock that threw Tatum from the pipe. Respondent also urges that this contact explains
any burn marks on the crane cables. This argument is without merit. While the evidence
does demonstrate that the crane contacted the power lines after the accident, the evidence
demonstrates that the crane also either contacted the line or was within 1/2" of the
line at the time of the accident and that this initial contact resulted in Tatum's
electrocution. Respondent offers no other plausible explanation for the accident; indeed,
there appears to be none.

Respondent points out that Bryan Shoemaker testified the crew
had moved a load of pipe earlier in the day without incident and that the crane was in the
same location at the time of the accident. However, Respondent's statement of the record
is not quite accurate. Shoemaker actually said that if the crane was moved at all between
loads "it was slight, because it was still in the same general location." (Tr.
92). However, even a "slight" move could have resulted in the crane operating
within ten feet of the line at the time of the accident. Further, even if the crane was
not moved, the fact that the crew did not suffer an accident earlier does not refute the
likelihood that the crane was operating within ten feet of the line at the time of the
accident.

Respondent places great emphasis on the fact that Tatum,
allegedly the "spotter," did not warn Mitcham that the crane was too close to
the power line. Respondent seems to suggest that the fact that Tatum did not warn Mitcham
supports its position that there was no violation of the ten foot requirement. However,
Respondent's argument is flawed. For one thing, it is not at all clear that Tatum was
designated "spotter." Although Jerry Mitcham may have told Tatum to watch the
power lines, Marse said Tatum was not a "spotter." (Tr. 27, 44).

Even if he was, the evidence shows that he had not received the
necessary training to enable him to competently perform the duties of that position. Marse
stated that neither he nor Tatum had received any instructions about cranes and power
lines; consequently, neither was paying attention to the lines when the accident occurred.
Elveston testified that Bryan Shoemaker told him he had not received any specific
instructions about cranes and power lines. Further, Mitcham told him that while he had
received some training about keeping cranes out of power lines, he did not remember
anything specific about distances and voltages. (Tr. 20, 41, 45). It appears that at least
one reason no one noticed whether the crane was too close to the lines was because
Respondent had not adequately instructed its employees.

Other reasons appear to be the glare of the sun and the poor
visibility through the crane cab's window. Martha Shoemaker testified that when she went
to the accident site, the glare was so intense she couldn't look up at the lines. Bryan
Shoemaker testified that he could not measure the distance because "we were looking
into the sun." Elveston said the view through the opaque window at the top of the cab
was so poor that the operator could not have seen the power lines through the window; he
would have had to lean outside the cab to see the lines. (Tr. 24-25, 82, 91). Again,
however, had Respondent adequately instructed its employees, they would presumably not
have been working under conditions in which they could not see overhead power lines.

Respondent does not actually make an "unpreventable
employee misconduct" defense. However, even if it had, Commission decisions have
rejected such defenses where the employee was either inadequately instructed or unaware of
the employer's safety rule. See New England TeIephone and Telegraph Co., 8 OSHC
(BNA) 1478 (1980); Danco Construction Co. , 5 OSHC (BNA) 2043 (1977), aff'd,
568 F.2d 12438 6 OSHC (BNA) 2039 (8th Cir. 1978). The Commission has also hold that safety
meetings are not enough and that employers should inspect worksites to determine what
hazards are present so that adequate instructions can be given. Enfield's Tree Service,
Inc. , 5 OSHC (BNA) 1142 (1977). Compare Houston Systems Manufacturing Co., Inc.,
9 OSHC (BNA) 2037 (1981) (Commission affirmed ALJ's vacation of citation since employer
demonstrated it had taken all reasonable precautions to prevent violation).

While Respondent clearly has a safety program that includes the
OSHA ten-foot requirement, the evidence shows that Respondent did not adequately
communicate the requirement to its employees. Further, since there is no evidence that
Respondent attempted to determine the hazards present at the site and instruct its
employees accordingly, Respondent did not take all reasonable precautions to prevent the
violation.

Based on the foregoing, I find that the evidence establishes a
violation of 1910.180(j)(1)(i). Turning to the assessment of an appropriate penalty, the
record shows that Respondent is a safety-conscious company which holds regular safety
meetings for its employees. Respondent has no history of previous violations. The problem
lies in its failure, at least in this instance, to communicate reasonable instructions
regarding safety hazards at the worksite. The Secretary proposed a penalty of $640.
Considering the factors set forth in �17(j) of the Act, the proposed penalty is
appropriate. It reflects Respondent's size, history, good faith and gravity of the
violation.

Conclusion of Law

1. Respondent, Baytown Construction Company, is engaged in a
   business affecting commerce and has employees within the meaning of � 3(5) of the Act.
   The Commission has jurisdiction of the parties and of the subject matter of the
   proceeding.

2. On October 27, 1988 Respondent was in serious violation of
   29 C.F.R. 1910.180(j)(1)(i).

3. On October 27, 1988 Respondent was not in violation of 29 C.F.R. 1910.180(i)(5)(i).

ORDER

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Item 1 of serious citation number 1 is AFFIRMED and a
   penalty of $640 is assessed.

2. Item 1 of "other than serious" citation number 2
   is VACATED.

Louis G. LaVecchia

Administrative Law Judge

DATE: June 4, 1990

FOOTNOTES:

[[1]] The cited standard provides as follows:

� 1910.180 Crawler locomotive and truck cranes.

(j) Operating near electric power lines --(1) Clearances.
Except where the 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 crane have been erected to prevent physical contact with the lines,
cranes shall be operated proximate to, under, over, by, or near powerlines 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.

The cited standard has been revised as of July 1, 1991.
However, the cited standard was in effect when the alleged violation took place.

[[2]] A second citation, which alleged an other-than-serious
violation of 29 C.F.R. � 1910.180(i)(5)(i), for failure to provide a fire extinguisher in
close proximity, was vacated. The Secretary did not seek review of that portion of the
judge's decision, and it is not at issue here.

[[3]] Mitcham did not testify at the hearing.

[[4]] Shoemaker testified that when he looked up at the crane,
it was not touching the powerline because "he could distinguish [the] two looking up
into it." However, he admits that it was possible that it could have "swung
back" into the powerline.

[[5]] However, the Galveston County judge wrote that "[i]t
is possible that i told the lawyers to come in on the 23rd in case my court coordinator
had not been able to contact all of the Jurors."

[[6]] Baytown has not stated why all three of its corporate
representatives were at the Galveston hearing. In its Motion for Continuance, Baytown only
states that they "are among those needed in the Galveston trial."

[7]] At Baytown's request, the proceedings in this cast were
conducted under the Commission's simplified proceedings rules. 29 C.F.R. � 2200.200-212.
Under simplified proceedings, there is no bar to the admission of hearsay because the
Federal Rules of Evidence do not apply. See 29 C.F.R. � 2200.207(c)(1).