UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 12847 |
|
DANCO
CONSTRUCTION COMPANY, |
|
|
Respondent. |
|
October 25, 1977
DECISION
Before: CLEARY, Chairman; and BARNAKO, Commissioner:
CLEARY, Chairman:
Judge
Kennedy’s decision is before us upon an order for review issued under 29 U.S.C.
§ 661(i). The Judge held that respondent Danco Construction Company failed to maintain a minimum
clearance of 10 feet between electrical distribution lines and the boom of a
crane unloading pipe and that this was a serious violation of 29 CFR § 1926.550(a)(15)(i).[1]
While
unloading pipe measuring about 24 inches in diameter and 20 feet in length from
a flat bed truck and stacking it along
side the road beneath the electrical lines, two employees were injured,
one fatally, when the boom of the crane came close to the power line. The
Judge’s decision contains a full statement of the facts. Respondent employer
argued before the Judge that the accident and the movement too close to the
power line resulted from the unforeseen carelessness of one employee directing
the crane. The Administrative Law Judge held among other things that
respondent’s training and supervision of the unloading crew was inadequate and
it was therefore not unforeseeable that employees would suffer death or serious
physical harm.
In its
brief before us, respondent argues that as an employer it should not be held to
be an absolute insurer of the safety of employees and that its supervision of
the employees in this instance was adequate.
The
Secretary has filed no brief with us.
Judge
Kennedy did not hold that respondent was an absolute insurer, nor do we. The
case turns on whether respondent has proved an affirmative defense of
‘unpreventable employee misconduct.’ See e.g., Leo J. Martone &
Associates, Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977 78 CCH OSHD para.
21,718 (No. 11175, 1977); The Kansas Power & Light Co., 77 OSAHRC
39/A2, 5 BNA OSHC 1202, 1977 78 CCH OSHD para. 21,696
(No. 11015, 1977); Utilities Line Construction Co., 76 OSAHRC 121/A2, 4
BNA OSHC 1681, 1976 77 CCH OSHD para. 21,098 (No.
4105, 1976).
Respondent
relies heavily upon the testimony of Mr. Wright, its president, which describes
the safety measures taken by the company by way of instructions and safety
meetings; that of Mr. Stephen de Linde to the effect that he had received
safety instructions; and that of the crane operator Mr. Gonzales, who had been
cautioned just about every time he got on the machine to be ‘careful.’ Mr.
Francis, respondent’s supervisor, also testified that he cautioned equipment
operators to be careful of power lines.
Respondent
has not proved by preponderating evidence that it had adequate training and
supervision. The supervisor was not present during the unloading operation. The
evidence of instruction to employees on the ground, that is to the two
employees who were injured, it very general. There is no evidence of any
specific instructions. This is important because the crane operator was largely
dependent upon signals from the employees on the ground on whether to raise or
lower the boom. It is also significant that the two employees on the ground
were young. Billy Rogers was ‘barely old enough to work,’ presumably 18 years
of age. Ernest Prince’s age is not indicated, but Mr. Francis, the supervisor,
referred to both Roger and Prince as the ‘two boys’ on the ground unloading
pipe.
The
absence of effective safety supervision is also suggested by the fact that in
operating the crane Mr. Gonzales was allowed to work facing east toward a
bright morning sun when in his own words, he ‘couldn’t see much’ (Tr. 178).
Given the proximity of the power lines along with the lack of evidence of
adequate instructions having been issued to Rogers and Prince and the light
conditions in which Gonzales was working, we cannot conclude reasonably that
the violation of the standard was unpreventable.
The
Judge’s decision is AFFIRMED.
FOR THE COMMISSION
William S. McLaughlin
Executive Secretary
DATED: OCT 25, 1977
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 12847 |
|
DANCO
CONSTRUCTION COMPANY, |
|
|
Respondent. |
|
January 13, 1976
DECISION AND ORDER
Appearances:
Arnold S. Battise,
Esq., of Dallas, Texas, for the Secretary
John B. Thurman, Esq., and John B.
Bingham, Esq., of Little Rock, Arkansas, for the Respondent
Harold A. Kennedy, Judge:
On
February 26, 1975, two of Respondent’s employees were injured, one fatally,
while unloading and stacking pipe on a North Little Rock, Arkansas, street. A
crane was being used to unload the pipe from a flatbed truck. The two injured
men were standing on the ground, holding each end of a pipe, guiding it onto a
rack. The two men were injured when the boom of the crane came too close to a
power line.
Between
February 28 and March 12, 1975, a representative of the Secretary of Labor
conducted an investigation of the accident, and on March 17, 1975, a citation
issued charging Respondent with ‘serious’[2] violation of Section
5(a)(2) of the Occupational Safety and Health Act of 1970 by failing to comply
with the standard set forth at 29 CFR 1926.550(a)(15)(i).[3] A penalty of $650 was
proposed by the Secretary for the alleged violation.
The
citation, designated Citation No. 1, alleged the violation in this language:
A minimum clearance of ten (10) feet was
not maintained between electrical distribution lines, rated less than 50 KV,
and a part of the crane; i.e. RT 58 Grove 15 ton crane unloading pipe in the
vicinity of Military Drive and Texas Street, North Little Rock, Arkansas,
February 26, 1975.
The
cited standard provides:
Except where electrical distribution and
transmission lines have been deenergized and visibly grounded at point of work
or where insulating barriers, not a part of or an attachment to the equipment
or machinery, have been erected to prevent physical contact with the lines,
equipment or machines shall be operated proximate to power lines only in
accordance with the following:
(i) For lines
rated 50 kV. or below, minimum clearance between the lines and any part of the
crane or load shall be 10 feet * * *
Respondent timely contested the citation. After
pleadings were filed, the case came on for hearing in Little Rock, Arkansas, on
August 21, 1975. No one appeared on behalf of Respondent’s employees.[4] The Secretary called five
witnesses: William Fay Wright, Respondent’s President; James W. Males, the
‘OSHA’ compliance officer who investigated the accident for the Secretary;
Edward P. Fitzgerald, Safety Manager of the Arkansas Power & Light Co.; Earl
H. Moreland, Jr., the Chief Engineer of the North Little Rock Electric
Department; and Steven de Linde, an employee of Respondent. For its defense,
Respondent called Pedro Gonzales, the crane operator, and Wilson M. Frances,
Respondent’s Construction Superintendent.
Jurisdiction
is not disputed (Tr. 9). The complainant alleges Respondent is a corporation
engaged in construction activity and a business affecting commerce within the
meaning of section 3 (5) of the Act. It also avers that it has an office at
1300 East 13th Street in North Little Rock, Arkansas. Respondent’s answer
specifically admits these allegations and the averment that asserts
jurisdiction is conferred by section 10(c) of the Act.
The
record indicates that Respondent’s business involves the laying of underground
utilities (Tr. 109–10, 196, 212). Respondent maintains only the one permanent
office in Arkansas but performs work outside of the State. The number of
employees varies, ranging as high as 170, but at the time of the inspection
Respondent employed approximately 80 persons. Respondent grosses approximately
$2.5 million annually. See Tr. 14, 29.
As
noted at the outset, the accident giving rise to the Secretary’s charge
occurred on February 26, 1975, when Respondent was engaged in a ‘pipe stringing
operation . . . preparatory to laying of . . . pipe
(Tr. 21) along the east side of Military Drive near the Camp Robinson military
facility (Tr. 64–5, 145, 155–6, 212–13). Complainant’s Exhibits 8, 11, 12, 13,
and 14 depict the scene of the accident (Tr. 66–8, 77–81, 84–5, 113). The stringing
operation involved unloading of pieces of pipe measuring approximately 24
inches in diameter and 20 feet in length (Tr. 112) from a flatbed truck and
stacking it alongside the road beneath electrical and communication (telephone
or television cables) lines. A power crane equipped with a cable and hook was
used to pick up the pipe and swing it in an easterly direction to a point where
it would be stacked in tiers of three, three pipes being placed in each tier. A
four by four timber, referred to as a ‘skid’ (Tr. 198), was placed on the
ground beneath the first tier. Four by fours were also placed beneath the
second and third tiers of pipe. Complainant’s Exhibits 6 and 7 show the method
used in stacking the pipe.
The
crane was parked partly off the road on the grass slightly to the rear of the
truck. Outriggers were in place to anchor the crane (Tr. 85, 107–9, 117–18,
156).
The
communication and electrical lines ran parallel to Military Drive at a distance
of 20 or 25 feet to the east (Tr. 85–7). Complainant’s Exhibit 9 shows the
position and number of the lines as they were attached to the pole closest to
the accident scene or to one of its two cross-arms. The lowest wire was
estimated to be 19 or 20 feet above the ground, and the highest wire was measured
to be at a height of 31 feet. The lowest two wires were identified as
communication lines. The ‘middle layer of lines,’ attached to the pole and five
feet or more above the communication wires (Tr. 127, 132), carried 120 volts to
the ground (220 ‘to the hot wires,’ Tr. 127), sometimes referred to as
‘secondary’ or ‘house current’ distribution. The lines on the top, owned by
Arkansas Power and Light, provided service to nearby Camp Robinson and carried
7620/13200. There was also a high voltage line attached to the end of the lower
cross-arm, which was owned by the City of North Little Rock and carried
essentially the same current—7620 to the ground, 13200 ‘face to face’ between
the wires. None of the lines carried over 50,000 volts (50 kV). See Tr. 47, 68–9,
101–7, 118–19; 127–30, 132–33, 142–45.
Four
persons were at the immediate scene when the accident occurred at approximately
10 A.M. on February 26 (Tr. 153).[5] Pedro Gonzales operated
the crane. Steve de Linde stood on the flatbed truck for the purpose of
attaching the crane cable hook to each piece of pipe so it could be unloaded.
Billy Rogers held onto one end of the pipe to guide it onto a rack, and Ernest Prince
held onto the other end for the same purpose.
The
evidence indicates that the accident occurred as the second or middle pipe was
being placed on the third tier. Only one additional pipe remained to be placed
on the rack. Mr. Gonzales, the crane operator, had been looking to Mr. Prince
and Mr. Rogers for instructions, in the form of hand signals, in stacking the
pipe. Operator Gonzales stated that just before the accident occurred he had
been relying on the signals of Prince as Rogers was concealed by a bush. Mr.
Gonzales indicated that the sun may have hampered his view of the wires (Tr.
153, 178). According to the operator, he had set the pipe down once and was
then told to raise it again ‘a little bit’ (Tr. 181). When he did, the boom of
the crane touched one or more of the lines-or at least came close enough that
electricity passed to the boom and through the crane with the result that both Prince
and Rogers were injured.[6] According to Mr. Gonzales,
‘I heard somebody hollering;’ he looked around and saw Mr. Prince’s gloves
burning. He then lowered the boom to set the pipe down as it was ‘hot’ (Tr.
176–82, 189–95). Mr. Francis arrived at the scene shortly afterward and found
the boom approximately six feet below the wires (Tr. 44). The body of one worker
lay at one end of the pipe and another at the other end (Tr. 112).
Mr.
de Linde believed that the boom came into contact with one or both of two lines
for 10 to 15 seconds. He drew a green circle on Complainant’s Exhibit 9 to
indicate which lines he thought were hit.[7] He testified that he
‘heard . . . and saw the sparks . . . and saw them fall off’ (Tr. 148–52).
Construction
Superintendent Frances was the supervisor of the work crew unloading and
stacking the pipe, but he was not present when the accident occurred. He had
taken the men to the place where they were working and told them to unload and
stack the pipe. Mr. Frances had been away from the site for 45 minutes or so,
apparently checking on another work crew. See Tr. 153–4, 158; 169, 186–9; 196,
203, 207–8. He did not recall whether the truck with the pipe had arrived at
the scene before he left or not (Tr. 207).
It
was not unusual for Respondent’s work crew to work without direct supervision.
According to Mr. Frances, such is a ‘common practice when you’re unloading pipe
with experienced people’ (Tr. 203, see also 16–17, 21, 26–7—Wright). He
considered Pedro Gonzales ‘a very good operator’ (Tr. 198).[8] Superintendent Frances
referred to an earlier incident which he said involved ‘careless’ conduct on
the part of Billy Rogers in unloading some timbers, adding that ‘I warned him
about it’ (Tr. 200, 204). He faulted Steve de Linde for his conduct on the day
of the February 26 accident on the basis that ‘he was the very best man to see
what was going on’ and ‘should have said something’ (Tr. 204). He could not
recall, however, that he had designated anyone to warn the crane operator about
the lines (Tr. 207). Mr. de Linde testified that he was unaware that anyone was
designated to give guidance to the operator (Tr. 157).
Mr.
de Linde at the time of the hearing was 22 years of age and unemployed (Tr.
146, 156). Billy Rogers, who died as a result of the accident, ‘was barely of
age to come to work’ when he started working for Respondent approximately two
and one-half months before the accident. President Wright estimated his age at
18 (Tr. 15). The record does not indicate what Ernest Prince’s age and
experience were. Mr. Frances did indicate that he as well as Billy Rogers were
young men, referring to them as ‘two boys on the ground unloading the pipe’
(Tr. 198). Pedro Gonzales had been employed by Respondent for about 13 years
and had operated a crane for Respondent approximately eight years (Tr. 17; 164,
168). Construction Superintendent Frances had worked for Respondent for 19
years, 16 years of them as a supervisor (Tr. 196).
The
record indicates that Respondent did not have regular safety meetings.
According to Superintendent Frances, he held a safety meeting ‘any time I see
something that I don’t like or I don’t think is safe’ (Tr. 202).[9] Mr. Frances stated that he
frequently warned crane operators as well as other employees of the danger of
working close to power lines. Such warnings were given orally, although he said
he might show an operator an OSHA rule or regulation. See Tr. 197, 201–2, 206.
William
Fay Wright, Respondent’s president, testified along the same lines with respect
to safety training (Tr. 21–31). He was not certain what training Mr. Gonzales
and other employees had received in operating equipment as this function was
carried out by a foreman. 9[10]He testified, however,
that employees were consistently reminded, in an oral manner, to stay away from
power lines, preferably as far away as 15 feet. Such instruction, he said, had
produced an ‘excellent record’ and ‘we’ve never had a problem like this’ (Tr.
25).
In
the cab of the crane on the day of the accident, there was a printed placard
which directed that the crane not be operated within a certain distance of high
voltage lines. Apparently the placard in the cab provided only for a six feet
clearance in accord with an earlier State of Arkansas requirement. Respondent’s
Exhibit 1 does show a placard in Respondent’s crane proscribing operation of
the crane within 10 feet of high voltage lines. Compliance officer testified,
however, that President Wright had told him that the placard has been put in
place after the accident to replace one which ‘stated the old State law’ (Tr.
82, 98). Mr. Wright testified that he did not know when the placard was placed
in the crane (Tr. 35). See Tr. 25–6, 33; also Tr. 166, 170–1.
It
was Mr. Wright’s view that Ernest Prince was the one solely responsible for the
February 26, 1975, accident on the basis that ‘he was the one directing the
boom and the position of the boom at the time that the accident occurred’ (Tr.
32, also 20).
It is clear that the minimum 10 feet clearance prescribed by
29 CFR 1926.550(a)(15)(i) was not maintained on
February 26, 1975. The evidence is persuasive that the boom of Respondent’s
crane did touch at least one of the power lines, resulting in the death of
Billy Rogers and injury to Ernest Prince.[11] It must be determined
whether Respondent was responsible for such non-compliance with the cited
standard.
Respondent
argues in its proposed findings and reply brief that it could not have been
aware of any violation and that the accident was a result of the unforeseen
carelessness of the two employees on the ground directing the crane.[12] The Secretary, on the
other hand, contends that there was a serious violation of the Act and that it
occurred because of inadequate supervision. Counsel for the Secretary asserts
that Respondent could have ‘taken any number of steps to reduce any hazardous
exposure,’ such as by de-energizing the lines, having closer supervision, and
providing a detailed and comprehensive safety manual. Such measures were
pursued during the trial of the case (Tr. 21–2, 26–8; 171–75, 186–87; 201–3,
206–9).
Careful
review of the record and applicable precedents persuade me to conclude that
Respondent was responsible for the non-compliance and that such involved a
serious violation of the Act.
Lebanon
Lumber Company, 2 OSAHRC 924 (1973), involved facts similar
to those of record here. The employer there argued ‘disobedience of the
deceased employee and his co-worker of express safety rules. . . .’ The
Commission’s decision in that case is applicable here. It reads in part:
The Act requires that respondent do more
than merely warn employees of hazards and issue instructions. The Commission
has stated that an employer cannot be held to the strict standard of being an
absolute guarantor or insurer of the safety of his employees. Secretary of
Labor v. Standard Glass Company, Inc., OSHRC DOCKET NO. 259; Secretary
of Labor v. Mountain States Telephone & Telegraph Company, OSHRC DOCKET
NO. 355. The duty of the employer is to furnish his employees with a safe
workplace. This necessarily implies that the employer will take whatever steps
are necessary to accomplish the job safely. Employees have the concomitant duty
to comply with safety standards applicable to their conduct (section 5(b) of
the Act) but, ‘Final responsibility for compliance with the requirements of
this Act remains with the employer.’ S.Rep. No.
91–1282, 91st Cong., 2nd Sess. 11 (1970).
Thus,
it is clear that respondent failed to take the steps necessary to assure
compliance with the standard when it sent inexpert employees to perform work
without supervision at a hazardous work site. This is not to say that
one-on-one supervision is required at all times, but that the degree of
supervision necessary must be determined on the facts of each case. * * *
Respondent
has committed a serious violation of the Act by failure to comply with the
standard at 29 CFR 1910.180(j)(1)(i). The record is
clear that with the exercise of reasonable diligence, i.e., proper supervision,
respondent would have known of the violation. It is also distressingly clear
that this violation meets the other criterion of a serious violation in that
there is substantial probability that death or serious physical harm could
result. * * *
The
Seventh Circuit’s recent reversal of the Commission’s decision in Brennan v.
Butler Lime and Cement Company and OSAHRC, —— F.2d —— (decided September 5,
1975) is also instructive. In that case, a driver of a truck crane named Kapperman died as a result of operating the crane too close
to overhead lines. The employer denied it could have known of the hazardous
conduct on the part of the driver, contending that it had adequately trained
and instructed him in the safe operation of the crane. Speaking for the Court,
Circuit Judge Pell stated:
* *
* We note, first, that if an employee is negligent or creates a violation of a
safety standard, that does not necessarily prevent the employer from being held
responsible for the violation. See e.g., REA Express, Inc. v. Brennan,
495 F.2d 822, 825 (2d Cir. 1974); National Realty & Constr. Co. Inc. v.
OSAHRC, 489 F.2d 1257, 1260 n.6, 1266 n.36 (D.C. Cir. 1973). True, an
employer is not an insurer under the Act. But an employer is responsible if it
knew or, with the exercise of reasonable diligence, should have known of the
existence of a serious violation. A particular instance ‘of hazardous employee
conduct may be considered preventable even if no employer could have detected
the conduct, or its hazardous nature, at the moment of its occurrence, . . .
[where] such conduct might have been precluded through feasible precautions
concerning the hiring, training, and sanctioning of employees.’ National
Realty, supra, 489 F.2d at 1266–67 n.37 (emphasis added).
Second,
the decisions at the Commission level address themselves to the foreseeability
of the incident as it actually occurred rather than to the foreseeability of
the general danger of coming within ten feet of power lines, i.e., the danger
which was the subject of promulgated standard 1910.180(j). ‘[S]ection 17(k) [does not] reguir
[e] any actual death or physical injury for a violation to occur.’ Brennan
v. OSAHRC 494 F.2d 460, 463 (8th Cir. 1974). An employer must take
reasonable precautionary steps to protect its employees from reasonably
foreseeable recognized dangers that are causing or are likely to cause death or
serious physical injury. And precautionary steps, of course, include the
employer’s providing an adequate safety and training program. * * *
In
sum, whether a serious violation of the standard was foreseeable with the
exercise of reasonable diligence depends in great part on whether Butler’s
employees, Kapperman particularly, had received
adequate safety instructions. * * *’
The
evidence of record indicates that the accident could have been prevented by
Respondent if its work crew had been adequately supervised and trained.
Respondent was not sufficiently diligent in seeing to it that its employees
received adequate safety instruction. Placing of a placard in the cab of crane,
even if it had proscribed operation of the crane within 10 feet of power lines,
was not enough. The ‘stay away’ warning was insufficient to bring home to
Respondent’s crew that someone must always observe the operation of the crane
so its operator could be kept informed of the proximity of the power lines and
not bring the boom within 10 feet of them.[13] Given the nature of the
work area provided with the close proximity of the power lines, the training
and experience of most members of the crew and the extent of the supervision
provided, it was not unforeseeable that an employee would suffer death of
serious physical harm.
The
method used by the Secretary in computing the proposed penalty does not comport
with section 17(j) of the Act.[14] That provision requires
that all civil penalties take into account the gravity of the violation as well
as the employer’s size, good faith and history of previous violations.
Respondent
is by no means one of the nation’s largest employers, and its good faith has
not been seriously impugned. Respondent has some history under the Act (see Danco Construction Company, 17 OSAHRC 170
(1975), and Tr. 91–2). Most significantly, however, the gravity of the
violation, even though of limited duration, is high because of the nature of
exposure to two of Respondent’s employees. Having considered the statutory
factors for assessing penalties under the Act, a penalty of $600 is assessed.
Based
on the foregoing, the following conclusions of law entered:
1.
Respondent is now, and at all times relevant herein, an employer within the
meaning of section 3 (5) of the Act, and the Commission has jurisdiction over
the parties and the subject matter;
2.
The Secretary established that Respondent failed to comply with 29 CFR
1926.550(a)(15)(i) on February 26, 1975; and
3.
Such non-compliance involved a ‘serious’ violation of the Act.
ORDER
Based
on the foregoing, and the whole record, it is ordered that
1.
Citation No. 1 issued against the Respondent on March 17, 1975, is AFFIRMED;
and
2.
The penalty proposed therefor is vacated and in lieu thereof a penalty of $600
is ASSESSED.
Harold
A. Kennedy
Judge, OSAHRC
Dated: January 13, 1976
[1] The standard
reads as follows:
§ 1926.550 cranes and derricks.
(a) General requirements.
(15) Except where electrical distribution
and transmission lines have been deenergized and visibly grounded at point of
work or where insulating barriers, not a part of or an attachment to the
equipment or machinery, have been erected to prevent physical contact with the
lines, equipment or machines shall be operated proximate to power lines only in
accordance with the following:
(i) For lines rated 50 kv. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet . . ..
[2]
Section
17(k) provides that ‘a serious violation shall be deemed to exist in a place of
employment if there is a substantial probability that death or serious physical
harm could result from a condition which exists, or from one or more practices,
means, methods, operations, or processes which have been adopted or are in use,
in such place of employment unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the violation.’
[3] Section 5(a)(2) of the Act requires each
covered employer to ‘comply with occupational safety and health standards
promulgated under this Act.’
[4] Respondent’s employees are not organized
(Tr. 4).
[5] There were, in addition, a flagman and at
least one truck driver in the general area (Tr. 147, 157, 159).
[6] Neither the crane nor the power lines
showed any ‘physical evidence’ of contact (Tr. 88, 97–8). Representatives of
the two utility companies that owned the power lines testified that there was
no indication that there was any interruption of service on the day of the
accident (Tr. 131–4, 141).
[7] The lines circled had been identified as
secondary lines (Tr. 130).
[8] Respondent’s president also considered Mr.
Gonzales a very competent operator. Mr. Wright indicated that Mr. Gonzales had
more authority than the other members of the work crew because of the job he
was performing and his experience (Tr. 16–19).
[9] President Wright said ‘OSHA is a big
factor’ in meetings involving foremen but there would be a discussion with a
work crew only if he found ‘anything wrong’ (Tr. 28–9).
[10] Mr. Wright explained the basic movements
of a crane and how they could be activated (Tr. 22–3).
[11] Ernest Prince was hospitalized following
the accident (Tr. 18, 44).
[12] Respondent’s answer (Paragraph IV) attributes
the accident to the conduct ‘of the crane operator and the injured employee in
failing to follow the Respondent’s instructions.’
[13] Asked whether measures had been taken to
avoid the danger of getting too close to the power lines, Respondent’s construction
superintendent replied (Tr. 209):
‘Not anything that you mention. The only
steps that were taken were to stay away from the lines. * * *’
The
superintendent also indicated that he thought it was appropriate for
‘experienced people’ to work in the situation presented without supervision
(Tr. 203). (President Wright saw no need for supervision because he thought
that only a simple operation was involved. Tr. 16–7, 21.) But not all members
of the work crew were so experienced as to require no supervision. Cf. James
E. Roberts Company & Soule Steel Co., 7 OSAHRC 1005 (1974).
[14] It is apparent that the Secretary does not accept the Commission’s decision in Nacirema Operating Company, Inc., 1 OSAHRC 33. See Tr. 90–7.