Docket No. 88-2912-S

SECRETARY OF LABOR,

Complainant.

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?

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,

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).