Halmar Corp. and DeFoe Corp., a Joint Venture

Plain-English summary

Halmar Corp. and DeFoe Corp. used a crane to place concrete catch basins along the New York Thruway. While the crane backed about 400 feet with its boom fully extended, the boom contacted an overhead electrical line and an employee was electrocuted. The Commission found that the foreman knew or should have known about the lines and failed to ensure 10 feet of clearance or designate a spotter when the operator's view was divided. The employer did not prove unpreventable employee misconduct because it failed to show that its power-line rules were adequately communicated to supervisors and workers. The Commission affirmed both violations and increased the total penalty from the judge's grouped $5,000 assessment to separate $5,000 penalties, totaling $10,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(15)(i); 29 C.F.R. § 1926.550(a)(15)(iv)
• Outcome: Both crane power-line violations were affirmed, with separate penalties totaling $10,000.
• Key point: Maintaining power-line clearance and designating a spotter require different conduct, so the violations need not share one grouped penalty.

Full text (OSHRC public release)

SECRETARY OF LABOR,
              Complainant,
                    v.                          OSHRC Docket No. 94-2043
HALMAR CORP. and DEFOE CORP., a
JOINT VENTURE,
              Respondent.


                                    DECISION

Before: WEISBERG, Chairman; GUTTMAN, Commissioner.
BY THE COMMISSION:
Following an employee fatality in April 1994, Occupational Safety and Health
Administration (“OSHA”) Compliance Officer Scott Schrilla inspected Respondent, Halmar
Corporation and DeFoe Corporation, a Joint Venture (“Halmar/DeFoe”). As a result of the
inspection, the Secretary of Labor cited Halmar/DeFoe for alleged violations of various
OSHA standards, including the two crane operation standards at issue in this case, 29 C.F.R.
§ 1926.550(15)(i) and (iv).1 Administrative Law Judge Richard DeBenedetto affirmed both

1
The 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 machinery shall be operated proximate to power
lines only in accordance with the following:

                                                                            (continued...)

2

contested citation items and grouped the two violations together and assessed a single penalty
of $5000. We affirm the citations, but assess separate penalties of $5000 for each violation.
I. BACKGROUND
An employee of Halmar/DeFoe was electrocuted on April 14, 1994, when the boom
of a crane came into contact with overhead electrical wires. At the time of the accident, a
crew from Halmar/DeFoe was placing concrete catch basins along the median of the New
York Thruway when the foreman, Manuel Pinho, noticed that the crew had missed a drop
location. Because the basin was already attached to the boom of the crane, Pinho signaled
the crane operator to lift the basin off the flatbed truck and brace it against the cab of the
crane so that the crane could back up. This required the boom of the crane to be fully
extended. Without further discussion, Manuel Pinho got into his pickup truck and drove
southbound in reverse. As the crane proceeded backwards, crew member Jack Stewart
walked to the right of the crane with his hand on the basin, and another crew member,
Domingo Pinho, went behind the crane to move barrels and cones out of the way. Edward
Flanagan, the crane operator, testified that his attention was divided between the traffic on
the right side and an excavated area on the left. Flanagan had backed up the crane
approximately 400 feet when he heard a bang, and then saw employee Jack Stewart laying
on the ground.
Dr. George W. Borden, a forensic engineer with an expertise in electrical
engineering, testified on behalf of the Secretary that the boom must have come within 3
inches of the electrical wire for electricity to have arced from the wires to the crane. Daniel
Perritti, the manager of the Risk Management Department at the Orange and Rockland

1
(...continued)
(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;
....
(iv) A person shall be designated to observe clearance of the equipment and give
timely warning for all operations where it is difficult for the operator to maintain the
desired clearance by visual means.
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Utilities, also investigated the accident and concluded that the crane had come into contact
with the wire because the metal conductor of the wire was burned through 30-50 percent.
Perritti testified that while Halmar/DeFoe had asked his company to deenergize various
electrical lines where they expected to be working, the line involved in the accident was not
included in that request.
OSHA Compliance Officer Schrilla conducted employee interviews with Flanagan
and Domingo Pinho to determine the cause of the accident. Flanagan stated that the foreman,
Manuel Pinho, did not warn any of the crew members about the electrical lines, nor did he
designate anyone to watch for them. Flanagan also reported that while both Jack Stewart and
Domingo Pinho were signaling him to proceed backwards, they had only been watching for
clearance of the traffic and the cones and barrels. Flanagan stated that he had visually
checked the area for obstructions where he initially had stopped, but testified that he did not
look up while reversing the crane because he was concentrating on the road. Domingo Pinho
told Schrilla that he did not think it had been his job to watch for overhead wires because he
was only told to move the cones and barrels out of the way. Schrilla concluded that the crew
had forgotten to watch for electrical wires because they were concentrating on the traffic and
the cones.
At the hearing, Flanagan testified that he had not received any training from
Halmar/DeFoe regarding working in proximity to overhead electrical lines, but that he is
familiar with the safety rules for operating a crane in the vicinity of high voltage lines from
previous training and experience. Flanagan admitted that he had read and signed some
documents when he started at Halmar/DeFoe in May 1993, but that he did not recall the
content of those papers. Domingo Pinho also testified that while he remembers listening to
and signing “safety sheets,” he did not remember one involving power lines. Both employees
stated that prior to the accident, they were aware that overhead electrical lines ran across the
portion of the thruway on which they were working.
II. DISCUSSION
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   To establish a violation, the Secretary must show that: 1) the standard is applicable,

2) the employer failed to comply with it, 3) employees had access to the violative condition,
and 4) the employer had knowledge or constructive knowledge of the condition. Brock v.
L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), cert. denied, 484 U.S. 989 (1987). For
the reasons that follow, we find that the Secretary has met her burden of proof for both
citation items.
A. Failure to Maintain Minimum Clearance of 10 Feet
There is no dispute that the standard is applicable or that employees had access to the
violative condition. Halmar/DeFoe also acknowledges that the boom of the crane must have
come within 10 feet of the electrical wires. Therefore, the only issue that remains is whether
or not Halmar/DeFoe had knowledge of the violative condition.
We reject Halmar/DeFoe’s argument that it did not have knowledge of the violative
condition because the project did not call for working near electrical wires at that time. The
test for knowledge is whether an employer knew, or, with the exercise of reasonable
diligence, could have known of the presence of the violative condition. Pride Oil Well Svc.,
15 BNA OSHC 1809, 1991-93 CCH OSHD ¶ 29,807 (No. 87-692, 1992). Reasonable
diligence includes “the obligation to inspect the work area, to anticipate hazards to which
employees may be exposed, and to take measures to prevent the occurrence.” Frank
Swidzinski Co., 9 BNA OSHC 1230, 1233, 1981 CCH OSHD ¶ 25,129, p. 31,032 (No. 76-
4627, 1981). The fact that Halmar/DeFoe did not intend for its crew to operate the crane near
electrical wires does not excuse a supervisor’s failure to exercise caution and inspect his
worksite when such situations arise. In this case, foreman Manuel Pinho knew that Flanagan
was reversing the crane with the boom fully extended. He also knew or should have known
that there were electrical wires running across the New York Thruway, having passed under
them at least twice that very day.2 We therefore conclude that had he exercised reasonable

2
The crew passed under the wires as they made their way northbound on the thruway and
(continued...)
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diligence, Pinho would have anticipated that the crane might come into contact with those
electrical wires. Manuel Pinho’s knowledge of the violative condition is imputable to
Halmar/DeFoe because actual or constructive knowledge of a supervisor is imputed to an
employer. See Pride Oil Well Svc., 15 BNA OSHC 1809, 1991-93 CCH OSHD ¶ 29,807.
We also reject Halmar/DeFoe’s claim that the judge erred, under the court’s decision
in New York State Electric & Gas Corp., 88 F.3d 98 (2d Cir. 1996) (“NYS Electric”), by
shifting to the company the Secretary’s burden of establishing knowledge of the violative
condition. The Secretary has the burden of establishing a prima facie case of a violation; as
one of the elements of a violation she must show that the employer knew, or with reasonable
diligence could have known, of the violative condition. This case is clearly distinguishable
from NYS Electric in that the Secretary has affirmatively established that Halmar/DeFoe had
either actual or constructive knowledge of the violative condition. Unlike NYS Electric, it is
uncontroverted that the foreman here, Manual Pinho, is a supervisor. Moreover, the Secretary
made a strong affirmative case that, having worked as a supervisor for some time on the
reconstruction project, having directed the crane to back-up to place the missed catch basin,
and having driven under the power lines twice on the day of the accident, Manual Pinho
knew or should have known of the danger posed by the electrical wires. Pinho’s knowledge,
imputable to his employer, establishes a prima facie case of knowledge on the part of
Halmar/DeFoe. Thus, the Secretary has established Halmar/DeFoe’s knowledge through the
evidence pertaining to supervisor Manual Pinho and does not rely on the alleged inadequacy
of Halmar/DeFoe’s safety program to meet this element of the violation.3

2
(...continued)
Manual Pinho had to have passed under them again when he backed up his pickup truck, as
he was approximately 200 yards behind the crane.
3
The adequacy of Halmar/DeFoe’s safety program is discussed in depth later in this opinion
as it relates to the unpreventable employee misconduct defense.
 6

   Accordingly, we find that the Secretary has proven a violation of 29 C.F.R.

§ 1926.550(a)(15)(i).
B. Failure to Designate a Spotter
Halmar/DeFoe maintains that it complied with section 1926.550(a)(15)(iv) because
both Jack Stewart and Domingo Pinho were spotters for the crane. That claim, however, is
contradicted by Schrilla’s testimony regarding his interviews with the employees and
Flanagan’s testimony that there was no instruction from the foreman about backing up the
crane. Domingo Pinho’s testimony that Manuel Pinho had instructed him to move the barrels
and had told Jack Stewart to stay with the flatbed truck further contradicts the assertion that
Domingo Pinho and Jack Stewart were designated to observe for clearance. Lastly, Schrilla’s
conclusion, with which Halmar/DeFoe agrees, that the crew simply forgot about the wires
lends support to the allegation that there was no designation of a spotter. Whether or not Jack
Stewart or Domingo Pinho could have functioned as spotters is not relevant to the finding
of a violation in this case. The regulation clearly says that a spotter “shall be designated,”
indicating that affirmative action must be taken by the employer. See Brennan v. OSHRC
(Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974) (holding that ‘designate’requires specific and
positive action by employer to inform an employee of the existence and nature of his duties).
Since there was no designation of a person to observe for clearance from overhead electrical
wires, we find that Halmar/DeFoe failed to comply with section 1926.550(a)(15)(iv).
The only issue left is one of knowledge. The regulation calls for the use of a spotter
whenever it is difficult to obtain clearance by visual means. In this case, the judge found that
the conditions were such that the foreman should have known that a spotter was necessary.
Not only was there traffic on one side and an excavated area on the other, requiring the crane
operator to focus all of his attention on the road, but the boom was fully extended. As
discussed previously, Manuel Pinho also knew or should have known that there were
overhead electrical wires under which the crane must pass. However, he left the area without
reminding his crew of the dangers of electrical wires and without designating a spotter to
 7

watch for wires. Therefore, we find that Manuel Pinho had actual or constructive knowledge
of the violative condition. As noted earlier, the knowledge of a supervisory employee is
properly imputed to the employer.
Based on the above discussion, we find a violation of 29 C.F.R.
§ 1926.550(a)(15)(iv).
III. UNPREVENTABLE EMPLOYEE MISCONDUCT
Halmar/DeFoe claims that the unfortunate accident was the result of unpreventable
employee misconduct because it had a safety program, to which the foreman and crew did
not adhere, that adequately addressed working in the vicinity of electrical wires. To prevail
on the unpreventable employee misconduct defense, the employer must show that it had:
“established work rules designed to prevent the violation; adequately communicated those
work rules to its employees (including supervisors); taken reasonable steps to discover
violations of those work rules; and effectively enforced those work rules when they were
violated.” Pride Oil Well Svc., 15 BNA OSHC at 1815, 1991-93 CCH OSHD at p. 40,585.
Halmar/DeFoe claims that the conduct of the crew, including the foreman, was
unpreventable because they did not expect to be operating the crane around electrical wires
and they simply forgot about the wires.
Halmar/DeFoe presented evidence to support its defense. Arthur Lusignan, a project
manager for Halmar/DeFoe, testified that the company had a specific written plan to identify
overhead electrical wires on the New York Thruway project. The company had made
warning signs and mounted them on orange barrels, and had hung orange streamers from
some of the smaller lines. If the project called for work directly beneath a power line,
Halmar/DeFoe called the power company and requested that the power be shut off. Lusignan
testified that the wires were not deenergized on the day of the accident because there were
no plans to work beneath them. However, he stated that there were barrels with warning
signs underneath the electrical line involved in the accident.
 8

   In addition to the safety plan for the New York Thruway project, Halmar/DeFoe

maintains that it provides its employees with general safety instructions for working near
electrical wires. Under the section covering cranes and derricks, the safety manual states that
special hazard warnings must be posted so that they are visible to the operator and that any
operations near overhead electrical lines must maintain a minimum of 10 feet of clearance.
The manual also states that a person must be designated to observe operations when an
operator’s vision is obscured. A copy of this written safety program is on site at each project,
as well as in the offices of both companies. Lusignan also testified that Halmar/DeFoe holds
regular monthly staff meetings with management people, at which safety is one of the topics
discussed, and that sometimes foremen, like Manuel Pinho, are present. According to
Lusignan, the company also trains foremen at annual corporate meetings which cover all the
major elements of the safety program over the course of two to three years. In addition,
Lusignan testified, Halmar/DeFoe prepares a weekly written “toolbox talk” topic and
distributes it to all foremen so that they can talk about it with their employees on a weekly
basis. The foreman is required to give the safety presentation, then list persons present and
have them sign an attendance sheet. Halmar/DeFoe offered into evidence a “toolbox talk”
attendance list prepared by foreman Manuel Pinho and signed by Domingo Pinho, dated
March 24, 1994, approximately three weeks before the accident. That talk was entitled “Steel
Construction,” and included such topics as high voltage, cranes, and electrocution.
Halmar/DeFoe also submitted a “Toolbox Talk” dated August 20, 1992, signed by Jack
Stewart, which covered high voltage. Halmar/DeFoe submits that Flanagan’s admission that
he knew it was his responsibility to check for overhead wires and Domingo Pinho’s
admission that he knew the dangers of electrical wires are evidence that its employees are
properly trained.
We are not, however, convinced that Halmar/DeFoe met its burden in this case.
Although Halmar/DeFoe’s safety program requires cranes to maintain a minimum distance
of 10 feet from electrical wires and requires the use of a spotter when the operator’s vision
 9

is obstructed, we find that Halmar/DeFoe did not adequately communicate its work rules to
its employees and supervisors.
First and most importantly, there is nothing in the record to establish that
Halmar/DeFoe properly trained its supervisors. No evidence was presented to establish that
Manuel Pinho attended any of the monthly management meetings or that the safe operation
of cranes near electrical wires was ever discussed. Likewise, Halmar/DeFoe failed to show
that high voltage was discussed at any of the annual corporate meetings, or if all supervisors
had been present for all the safety training. Indeed, Cosmo Bartolone, a superintendent, did
not even know that the spotter rule was in the written program, for he told Schrilla that it was
an unwritten rule. The lack of any evidence regarding the training of supervisors with regards
to working near electrical wires leads us to the conclusion that the company’s work rules
were not effectively communicated to its employees.
Second, neither Flanagan or Domingo Pinho remembered being trained in the hazards
posed by electrical wires. While Flanagan admitted that he knew it was his responsibility to
check for wires, he stated that such knowledge came from past experience and training, not
from Halmar/DeFoe. He stated that the “toolbox talks” were not actual meetings, but that the
foreman would bring out a piece of paper for everyone to read and sign. He admitted that
sometimes he would just glance at the paper and ask for a quick explanation. While there is
evidence that Domingo Pinho signed a “toolbox talk” that covered the general topics at issue
in this case, it was his testimony that he did not remember it. Third, the safety program,
while addressing these hazards, does not effectively explain its work rules to employees.
Under the heading “Signaling for Cranes and Hoists” are the words “Standards as Applicable
by A.N.S.I..” The safety program does not list the applicable ANSI Standards and
Halmar/DeFoe superintendent Lusignan admitted that some employees, such as Domingo
Pinho, would not understand the safety instructions. Lastly, the written safety program was
not circulated to employees, but instead maintained in the company’s offices, with a copy
at each work site.
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   Based on the record in this case, Halmar/DeFoe has not met its burden of proving

unpreventable employee misconduct in this case. Accordingly, we affirm both citation items.
IV. PENALTIES
Although the Secretary had proposed a $5000 penalty for each citation item, the judge
grouped the two items together for a single penalty of $5000 on the basis that the violations
were so closely related as to constitute a single hazardous condition. The Secretary argues
on review that the two citation items should not have been grouped for penalty purposes, but
neither party contests the penalty amount.4
Previous cases make clear that there is no requirement to group penalties even when
closely related conditions are the subject of more than one citation item and a single action
may bring an employer into compliance with the cited standards. See H.H. Hall Constr. Co.,
10 BNA OSHC 1042, 1046, 1981 CCH OSHD ¶ 25,712, p.32,056 (No. 76-4765, 1981).
Furthermore, violations are considered duplicative only where they require the same
abatement conduct. See J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2207, 1991-93 CCH
OSHD ¶ 29,964 (No. 87-2059, 1993). In this case, section 1926.550(15)(i) requires
maintaining clearance of 10 feet from electrical wires and section 1926.550(15)(iv) requires
the designation of a spotter to observe such clearance. Because the violations involve
different violative conduct with different means of abatement, we do not believe, in light of
the high gravity of these violations, that the grouping of penalties in this case is appropriate.
We therefore assess separate penalties of $5000 for each citation item.
V. CONCLUSION
We affirm the citation items alleging violations of 29 C.F.R. §§ 1926.550(a)(15)(i)
and (iv) and assess a $5000 penalty for each citation item, for a total penalty of $10,000.

4
While the issue of penalties was not specifically directed for review, the Commission has
the discretion to review the entire judge’s decision, including penalty amount, once the case
is directed for review. Caterpillar, Inc., 15 BNA OSHC 2153, 2177, 1991-93 CCH OSHD
¶ 29,962, p.41,011 (No. 87-0922, 1993).
 11

                             /s/
                             Stuart E. Weisberg
                             Chairman


                             /s/
                             Daniel Guttman
                             Commissioner

Dated: September 23, 1997