ACCHIONE & CANUSO, INC.  

OSHRC Docket No. 16180

Occupational Safety and Health Review Commission

January 23, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

J. B. Acchione, III, Safety Engr., Acchione & Canuso, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

On November 18, 1976, Administrative Law Judge Henry K. Osterman affirmed a citation issued to respondent, Acchione & Canuso, Inc. (Acchione), alleging a serious violation of section 5(a)(2) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 [hereinafter "the Act"].   On November 22, 1976, former Commissioner Moran, pursuant to section 12(j) of the Act, n2 directed that the judge's decision "be reviewed for error." Respondent thereafter filed a petition for discretionary review and a brief on review, urging reversal of the judge's decision.   The Secretary did not file a brief on review.

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n1 29 U.S.C. §   654(a)(2).

n2 29 U.S.C. §   661(i).

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The citation alleged a violation of the Act for failure to comply with a standard n3 prohibiting the   [*2]   operation of a crane within 10 feet of an energized power line.   In affirming the citation, Judge Osterman assessed a penalty of $500.   We affirm the judge's decision to the extent that it is consistent with the following.

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n3 The cited standard, 29 C.F.R. §   1926.550(a)(15)(i), provides as follows:

§   1926.550 Cranes and derricks.

(a) General requirements.

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(15) Except where electrical distribution and transmission lines have been de-energized 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; . . .

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At the time of the accident that prompted the inspection in this case, Acchione was the general contractor at a road construction site in Philadelphia,   [*3]   Pennsylvania.   The construction site was approximately one mile long.   As general contractor, Acchione frequently rented out cranes and operators to subcontractors on the worksite.   At the request of the structural steel subcontractor, J. Richard Steers, Inc., respondent entered into an oral agreement with Steers to lease a crane n4 and the servicen of an operator to Steers for "a couple of days." Respondent's job superintendent n5 testified that the lease agreement included no provision concerning the assignment of responsibility for the operator's safety.   In addition, the superintendent did not question Steers as to the job to be performed by the crane, where it would be used, or whether a signalman would be assigned to assist the operator.

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n4 The crane involved here, also called a cherry picker, had been leased by Acchione on a long-term basis from a third company, P & C Rental, which is not involved in this case.

n5 The superintendent was paid by Neshaminy Constructors, a partner in a joint venture with respondent.   He testified that he considered Acchione his employer for this job, however, and respondent on review does not dispute the judge's finding that the superintendent was Acchione's representative on the worksite and had final authority over the operations there.

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Steers used the crane to lift steel beams from the ground and move them into place to be welded together for pilings.   During the afternoon of the second day of the lifting operation, Steers' foreman, using conventional hand signals, directed the operator to position the crane under high tension power lines.   The lines were estimated to be 27 to 35 feet above the ground and carried approximately 33,000 volts of electricity.   After lifting two beams successfully from that location, the operator -- by tapping his head -- signalled to Steers' foreman that he should remember the overhead wires. The operator testified that at the time he could not judge from his position in the cab how far the wires were from the boom, and that he signalled the foreman when he realized the lift was to be performed by moving the elongated boom up and down instead of hydraulically extending the boom's sections in and out.   The operator testified that it is not a normal procedure to boom up and down when a crane is located directly under power lines, and that he continued to work after giving the warning only because, at that [*5]   time, the boom was not within 10 feet of the wires.

Approximately one-half hour after the operator's warning signal had been given, the men were in the process of lifting a beam four to five feet longer than the others when the crane boom either touched or came very close to the overhead wires. Steers' foreman, who was quiding the beam manually, was electrocuted and another Steers employee received serious burns.   The operator was not injured but testified that he felt a tingling sensation in his right arm when the accident occurred.

Respondent argued before the judge that the operator was not its employee and that, even if he were, respondent had fulfilled its duty to provide him with a safe workplace. Judge Osterman concluded that the operator was an Acchione employee.   The judge cited the Commission decision in Lidstrom, Inc., 76 OSAHRC 40/E4, 4 BNA OSHC 1041, 1975-76 CCH OSHD P20,564 (No. 3433, 1976), in support of his conclusion, assigning little significance to the fact that in Lidstrom the lessee left the operating procedures of the crane entirely to the operator.   Judge Osterman also held that respondent had a duty to insure that the signalman assigned by Steers [*6]   was qualified and competert to give directions to the operator without exposing him to a hazard, and that respondent had failed in this duty. Finally, the judge found that Acchione's superintendent knew there were high tension wires located throughout the jobsite, and the judge held that this knowledge of the hazard was imputable to Acchione.

On review, respondent raises four arguments: first, that it was not the employer of the operator; second, that the operator was not exposed to the hazard; third, that respondent did not know the crane was under the wires; and fourth, that if respondent was the operator's employer, it did not breach its duty to take reasonable precautions to protect him.

Respondent contends that the judge erred in applying Lidstrom, supra, to the facts of this case because the operator here relied on the direction of Steers' foreman. Respondent also cites the court's decision in Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628 (10th Cir. 1975). In that case, the lessor of a crane was found to be the operator's employer because the lessee relied upon the expertise of the crane operator and gave no specific direction as to the operation of the [*7]   crane. Respondent asserts that in contrast to the situation in Frohlick, where only the crane operator himself knew how to operate the crane, the Steers foreman knew how to operate cranes. Moreover, in order to safely operate the crane, the operator relied on the foreman's skill in giving hand signals.   Respondent's argument, apparently, is that operational control of the equipment should be the sole determinative factor in deciding whether an employer-employee relationship exists.

The Commission has considered several elements in determining whether an employment relationship exists for purposes of the Act, such as: (1) the person whom the employee considers to be his employer; (2) who pays the employee's wages; (3) who is responsible for controlling the employee's activities; (4) who has the power, as distinguished from the responsibility, to control the employee; and (5) who has the power to fire him or to modily his employment conditions.   Griffin and Brand of McAllen, Inc., 78 OSAHRC 48/C13, 6 BNA OSHC 1702, 1978 CCH OSHD P22,829 (No. 14801, 1978); Weicker Transfer and Storage Co., 75 OSAHRC 29/A2, 2 BNA OSHC 1493, 1974-75 CCH OSHD P19,215 (Nos. 1362 & 1373, 1975).   [*8]  

The crane operator testified that respondent's superintendent could have given him work instructions even though his services had been leased to Steers along with the crane, and that he would have felt a duty to report to Acchione if he had been asked to position a crane within ten feet of wires. Acchione, in its answers to the Secretary's interrogatories, admitted that it continued to maintain the operator's employee records and pay his wagon after assigning him to the job with Steers.

As to the "control" factor, the Commission has held that although it is important in determining whether an employment relationship exists under the Act, it is by no means conclusive.   Gordon Construction Co., 4 BNA OSHC 1581, 1976-77 CCH OSHD P20,968 (No. 7390, 1976).   In any event, the record establishes that Acchione retained a significant amount of control over the operator.

Respondent admitted, in answers to interrogatories, that on the day of the accident it had the right to fire and discipline the operator.   In addition, Acchione's superintendent testified that, as the general contractor's representative on the worksite, he could have instructed a subcontractor's employee to stop performing [*9]   work in an unsafe manner.   He also testified, however, that a subcontractor's employee would not have to follow his instructions because the employee was not paid by Acchione.   Inasmuch as the operator was on respondent's payroll, he would have been required to obey any orders from the superintendent to move the crane away from the wires. Respondent thus had the power to control the operator's activities, and could have taken him off the job if the Steers foreman refused to follow an order from respondent not to work under the wires. Finally, although the Steers foreman directed the movement of the crane by hand signals and decided what load was to be picked up and where it would be placed, the operator testified that he would not have been required to follow the foreman's instructions if the operator had been ordered to do something dangerous.   The operator testified that he would have refused to pick up and move a load if there was danger in doing so. n6 The record in this case supports a finding that Acchione was the employer of the crane operator.   See Weicker Transfer and Storage Co., supra.

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n6 The operator could not judge from his seat in the cab whether the boom was in a hazardous position.   This does not alter the fact, as verified by the operator himself, that he had the authority to cease crane operations under hazardous circumstances and could have refused to follow an instruction from the Steers foreman that would have put him in danger.

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Acchione contends that it is not responsible for the "error of judgment" n7 that caused the accident because it had no actual or constructive knowledge of the violative condition.   The evidence, however, establishes that Acchione had either actual or constructive knowledge of the violative condition.   The record indicates that respondent's superintendent was on the jobsite about 200 feet away from the crane at the time of the accident.   Although the superintendent testified that he did not know the crane was placed directly under the wires, he also testified that he had worked on the jobsite for 14 months and knew there were wires all over the site. The Seventh Circuit directly addressed a similar situation in Brennan v.   [*11]    Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975), when it said:

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 [ & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973)] at 1266-67 n.37 (emphasis added by the court).

Based on the superintendent's presence on the jobsite and his awareness of the presence of the power lines, as well as the crane operator's lack of experience working near power lines and lack of training, we find that respondent knew, or could have known with the exercise of reasonable diligence, of the violative condition.   See, Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979).   [*12]  

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n7 Respondent, in its brief on review, appears to have abandoned the argument raised in its petition for review that the operator was not exposed to the hazard. Respondent in its brief contends that "[the operator's] exposure to a hazard resulted from an improper decision made by the Steers, Inc. foreman" and that "[the operator] recklessly expos[ed] himself to existing hazards."

Even if this issue is not conceded, the Commission finds that the operator was exposed to the hazard. A registered electrical engineer testified that under the circumstances of this case, the potential for severe electrical shock to the crane operator was present.   This evidence was unrefuted and, along with the operator's testimony describing the "tingling" sensation he felt in his arm at the time of the accident, is evidence of actual exposure to the shock hazard. At the very least, access to the hazard is made out by the same evidence.   Under the rule of access for establishing employee exposure, the Secretary must demonstrate that "'the hazard posed by the violation is accessible to employees.'" Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978), quoting Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976).   Accordingly, we find that the operator was exposed to the hazard of electrical shock.

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In addition to arguing that it lacked knowledge that the crane was being operated within 10 feet of the wires, respondent appears to be contending that the operator's n8 actions constituted unpreventable employee misconduct.   To the extent that it is raising that affirmative defense, respondent has not met its burden of proof.   In order to establish the defense of unpreventable employee misconduct, the employer must show that it has established work rules designed to prevent the violation, has adequately communicated these rules to its employees, has taken steps to discover violations of these work rules, and has effectively enforced the rules when violations have been discovered.   Jensen Construction Co.,    OSAHRC   , 7 BNA OSHC 1477, 1979 CCH OSHD P23,664 (No. 76-1538, 1979).

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n8 Respondent also suggests that the "error of judgment" may have been made by Steers' foreman. In view of our finding that the operator was an Acchione employee, respondent may not shift its responsibility for preventing the accident to the lessee. See our discussion, infra.

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The evidence reveals that there were signs on both the inside and outside of the crane cab warning that it was unlawful to operate the crane within 10 feet of overhead electric high voltage wires. The operator, who had 24 years of experience as a crane operator, had worked with respondent on this jobsite for two years, spending about one-third of his time operating a crane. The operator testified that before the day of the accident, he had never operated a crane in the vicinity of high tension wires, and that he had never received specific instructions from respondent regarding high power lines other than being told, on occasion, to "watch those wires." The operator also testified that respondent had no formal safety program.   Acchione's superintendent testified that there were weekly toolbox safety meetings with employees, but that the foremen who conducted such meetings were allowed to pick as a topic any one of 150 5-minute talks in a safety book.   The superintendent admitted that the operator "was probably not instructed to stay away from wires." Specific safety instructions and workrules concerning [*15]   hazards peculiar to thejob being performed are essential to an adequate safety program.   Springfield Steel Erectors, Inc., 78 OSAHRC 7/A4, 6 BNA OSHC 1313, 1978 CCH OSHD P22,498 (No. 15388, 1978); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977).   The record as a whole indicates the lack of an orderly and comprehensive safety training program that might have prevented the violation in this case.   Bechtel Power Co.,    OSAHRC   , 7 BNA OSHC 1361, 1979 CCH OSHD P23,575 (No. 13832, 1979); Lidstrom, supra.

Respondent's final contention on review is directed toward Judge Osterman's conclusion that respondent had a duty to insure that the crane operator was assigned a competent signalman. The judge held that Acchione was responsible for making certain that the person on whom the operator would rely for directions, while he was leased to Steers, was qualified and competent to give those directions without exposing the operator to a serious hazard. n9 Respondent argues that it had no duty to insure that Steers' foreman was qualified and competent to give directions to the crane operator, in that it was Steers'   [*16]   responsibility to provide the signalman because Steers had the actual right of control over the crane operator at the time of the accident.

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n9 Judge Osterman appears to have made a factual finding that Steers' foreman was incompetent to direct the crane operations.   Respondent asserts that this finding is not supported by the record.   As noted below, we find it unnecessary to address this issue.

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Respondent's argument must fail.   As noted above, the record establishes that the operator was respondent's employee.   The superintendent admitted that he made no specific arrangements with Steers concerning who would be responsible for the operator's safety.   Even if Steers had agreed to accept that responsibility, however, we have held that an employer remains accountable for the health and safety of its employees wherever they work, and cannot divest itself of its obligations under the Act by contracting the responsibility to another employer.   More specifically, an employer may not escape liability by reaching an understanding [*17]   with a lessee that a leased employee would be under the lessee's "exclusive jurisdiction, supervision, and control." Weicker Transfer and Storage, supra.

We conclude that the $500 penalty proposed by the Secretary is appropriate.   The gravity of the violation was high in that an employee was exposed to potential electrocution.   Accordingly, the citation for serious violation is affirmed and a penalty of $500 is assessed.  

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I agree with my colleagues that Acchione was the employer of the crane operator and that it violated the cited standard, which bars operation of a crane within ten feet of a power line.   However, I do not subscribe in total to the reasoning set forth in my colleagues' opinion.   I particularly find unacceptable the sweeping statement in the penultimate paragraph of their opinion that an employer remains accountable for the health and safety of its employees wherever they work, even if the employees are working under the responsibility of another employer.   This generalization is too broad to be accurate.

The fallacy of this statement is illustrated by Baroid Division of NL Industries, Inc., 79 OSAHRC 45/A9,   [*18]   7 BNA OSHC 1466, 1979 CCH OSHD P23,661 (No. 16096, 1979).   There Baroid's drilling mud consultant was injured by a gas explosion at a drilling site of one of Baroid's customers.   The employee had been sent to the site to advise Baroid's customer concerning procedures to be followed in drilling for oil.   Analysis of the case required consideration of what responsibility Baroid had to train the consultant concerning hazards that might be present at the drilling site. In my separate opinion I indicated that I do not believe an employer has a duty to train its employees with respect to all hazards which the employees may encounter while working at the workplace of another employer away from the premises of their employer.   Rather, I believe an employer's responsibility for safety training in such circumstances logically must be limited to training its employees concerning hazards which are directly involved with the employees' work and which the employer should expect to be encountered at the workplace of the other firm.   Thus, the employer should not be responsible for training with regard to unexpected hazards which may be present in the workplaces of others and which do not normally [*19]   arise in the type of work performed by its employees.   In this respect, an employer is not accountable for the health and safety of its employees regardless of where they work.

I would not, however, apply the holding in Baroid to the present case.   Acchione asserts that since Steers, the contractor to whom the crane operator was "leased," did not rely on the operator's expertise but instead closely directed the operator's actions, based on prior "leased employee" cases, n1 the operator was not Acchione's employee.   As my colleagues note, however, other factors lead to the conclusion that the crane operator was Acchione's employee.   Furthermore in the circumstances of this case I would not conclude that Acchione, albeit an employer of the operator, should be held to a less broad scope of responsibility for the operator's safety, since Steers, rather than Acchione, directed the operator's actions.   Here the lessor and lessee employers were working on the same jobsite, and at the time the violative condition occurred Acchione's superintendent was about 200 feet from the operator's crane. Since Acchione and Steers were working on the same site and in fairly close proximity, I would [*20]   not hold that Acchione's responsibility for its "leased" operator was diminished, even though Steers closely directed the operator's actions.   Had Steers assigned the "leased" operator to a jobsite remote from Acchione's promises, however, the degree of responsibility Acchione would bear for the operator's safety necessarily would have been lessened.   As I find Acchione fully responsible for the safety of its crane operator, I concur in affirmance of the citation. n2

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n1 Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628 (10th Cir. 1975); Lidstrom, Inc., 76 OSAHRC 40/E6, 4 BNA OSHC 1041, 1975-76 CCH OSHD P20,564 (No. 3433, 1976).

n2 This case was tried a few days after the Commission issued its decisions in the companion cases of Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976), and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (No. 4409, 1976).   Those decisions indicated, among other things, that the Commission would hold a general contractor on a multi-employer construction site responsible for a violation it could reasonably be expected to prevent or abate by reason of its supervisory capacity even though only employees of subcontractors, and no employees of the general, were exposed to the violative condition.   On review of the present case, however, neither party has suggested that the analysis of Grossman Steel and Anning-Johnson be applied here, even though Acchione was the general contractor and Steers a subcontractor on the construction site. Since I find Acchione in violation without viewing this case in terms of Grossman Steel and Anning-Johnson, and those decisions merely create an additional theory upon which a general contractor such as Acchione may be held in violation of the Act, it is unnecessary to analyze this case in terms of those decisions.

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