Docket No. 9

DALE M. MADDEN CONSTRUCTION, INC.

OSHRC Docket No. 9

Occupational Safety and Health Review Commission

March 30, 1972

[*1]

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On December 3, 1971, Occupational Safety and Health Review Commission Judge William J. Sweeney issued his decision and order in the above-captioned case, recommending dismissal. Thereafter, on December 10, 1971, I directed review in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the rulings of the Judge and finds no prejudicial error therein. The Commission has also reviewed the entire record in this case and has considered the briefs, arguments and exceptions of the parties. We adopt the Judge's summary of the evidence n1 to the extent consistent with the following.

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n1 The Commission does not adopt and expressly disassociates itself from the Judge's criticism of the Secretary's conduct of this case.

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On July 9, 1971, following the investigation of an accident which occurred on [*2] June 16, the Secretary inspected Respondent's Puyallup, Washington, workplace and issued a citation for a violation of section 5(a)(1) of the Act. Specifically, respondent was charged with "failure to maintain proper clearance from [crane] boom to a live power line to prevent contact, constituting a recognized hazard that is causing or is likely to cause death or serious physical harm to employees."

On July 12, 1971, the Secretary notified Respondent of a proposed penalty of $650, and Respondent filed a timely notice of contest.

The principal question presented by this case is whether Respondent engaged in the operation of a crane at the aforementioned construction site in a manner constituting a serious violation of the general duty clause of the Act. We believe that the Commission's Judge did not make such a determination but attempted to determine whether the Secretary had succeeded in establishing on the record by substantial evidence that an employee of Respondent received an electric shock and consequent injury from an overhead power line which had made contact with some part of the boom of the crane which he was engaged in "leveling" on June 16, 1971. As we point [*3] out below, the resolution of the latter question is unnecessary to a determination of the violation charged by the Secretary. Accordingly, we shall determine the conclusions of law and fact dispositive of the case.

We need look no further than the undisputed testimony of Respondent's pile buck foreman who was engaged in directing the crane operator's movement of the crane at the time of the incident which forms the res of this violation. The record shows that the pile buck foreman admitted that the boom and cable of the crane at the time of the incident were "plus or minus 10 feet" from the overhead power line. Other undisputed testimony renders inescapable the conclusion that the crane boom was "minus" 10 feet from the power line at the time of the incident.

Thus, a power company lineman testified that he observed a bright spot on the power line immediately following the accident which, in his experience (over 26 years), indicated metal to metal contact. An expert witness stated that the power line potential of 55,000 volts could not have arced over more than a few inches even under the most favorable conditions -- which other testimony shows did not exist at [*4] the time. n2

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n2 This expert testimony alone constitutes substantial evidence upon which the Commission's decision may rest. Federal Power Commission v. Florida Power and Light Company, 92 S. Ct. 637 (January 12, 1972). We find patently incredible the testimony of a layman (apparently credited by the Judge) to having observed a similar power source are a distance of 13 feet to a ground.

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An eye witness to the incident testified that he observed the crane boom moving toward the power line until it was within 6 to 8 feet of the line. Moreover, since this witness' attention was diverted by a flash which occurred within seconds of his observation of the boom, his testimony, even when tested by the most exacting standard, does not rule out the occurrence of contact by some part of the crane and the overhead power line.

In any case, the record demonstrates beyond question that the crane boom was moved to a position within 10 feet of the power line. The violation is established.

Although Respondent has not raised [*5] the question concerning whether its method of operation of the crane constituted "a recognized hazard" within the meaning of section 5(a)(1) of the Act, we believe it appropriate to indicate that we have considered this important question and determined that the record in this case demonstrates that it must be answered in the affirmative. There is both evidence that Respondent recognized the hazard and that this particular hazard is generally recognized within the industry. Thus, it is undisputed that Respondent attempted to have the power line deactivated before moving the crane, but proceeded to move the crane in the immediate area of the live power source because of "pressure of time to complete the job." Moreover, at the time of the incident there was prominently displayed on the crane a decal reading "Danger! Unlawful to operate this equipment within 10 feet of any power lines." The word danger is printed in red ink in letters one inch high. n3

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n3 The decal had been placed there a short time before the incident by an agent of the State of Washington, Division of Safety.

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Further, despite the fact that this Act has been in effect for less than a year and that a very small number of citations by the Secretary have been protested and thus come within the jurisdiction of the Commission (less than 5 percent), we have been obliged to observe and process a distressing procession of nearly identical incidents involveing a crane load contact with overhead electric lines. n4

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n4 E.g., dockets numbered 65, 291, 304.

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In view of the entire record in this case, we conclude that Respondent has violated section 5(a)(1) of the Act in the manner charged, that the violation is serious in nature and that the Secretary's proposed penalty is not unreasonable.

Accordingly, it is ordered that the Judge's proposed order be set aside. The Secretary's citation and proposed penalty are affirmed as the final order of the Commission.

[The Judge's decision referred to herein follows]

SWEENEY, JUDGE, OSAHRC: On July 9, 1971, [*7] the U.S. Department of Labor, Occupational Safety and Health Administration, an authorized representative of the Secretary of Labor, issued a citation against an employer, Dale M. Madden Construction, Inc., charging a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, and proposed a penalty of $650 for such violation which was alleged to be of a serious nature within the meaning of the act. The cited violation stated in full as follows: "Failure to maintain proper clearance from boom to a live power line to prevent contact, constituting a recognized hazard that is causing or is likely to cause death or serious physical harm to employees."

The employer contested the citation and proposed penalty in letters dated July 20, 1971. These notices of contest were timely filed. The Occupational Safety and Health Review Commission assigned the matter for a hearing which was subsequently scheduled for September 15, 1971 in Seattle, Washington. The employees had been notified concerning this proceeding by the employer but they neither appeared nor were represented at the hearing. Subsequent to the hearing the Secretary filed a memorandum in support of the citation, [*8] nd also proposed findings of fact and conclusions of law; the employer replied. Proposed findings of fact and conclusions of law not specifically discussed nor reflected in the findings or conclusion herein have been considered and found not justified.

Under the general heading "Duties" the cited section of the statute reads in pertinent part as follows:

SEC. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

SUMMARY OF THE EVIDENCE

PRELIMINARY STATEMENT

The pertinent evidence herein consists entirely of testimony by witnesses except for a warning decal which is an exhibit of record. Witnesses presented by the Secretary in support of the cited violation did not converse with or otherwise gain information from any person present at the scene of the alleged violation. Although the names of four such persons were available to the investigators, no concerted effort was made to secure information from any of them. The employer did call as witness two of the aforesaid persons who were known [*9] to be present at the scene.

TESTIMONY OF WITNESSES CALLED BY THE SECRETARY

It was stated by Eugene Adams that on the date of the alleged violation, June 16, 1971, he was a safety inspector for the State of Washington, and that subsequently he assumed also the duties and title of compliance officer for the U.S. Department of Labor. Prior to June 16 he had made safety inspections of the construction site where the alleged violation occurred, and early that month he had affixed a decal to a crane being operated at the site. The decal was 8" X 6" in size and in large red letters stated "Danger;" in smaller print it was stated "unlawful to operate this equipment within 10 feet of any power lines." On June 16, Mr. Adams received notification of an accident at the site in Puyallup, Washington. He proceeded to the scene of the accident about 4 hours after the reported occurrence. That site was described as a narrow two-lane highway. A crane marked with the above described decal had been in operation on the northern side of the pavement and had been engaged in placing steel pilings in position about 4 feet from the northern edge of the road. A power line carrying 55,000 volts, [*10] and strung about 40 feet above ground, ran along the southern edge of the pavement. Automobile, bus and truck traffic, described as heavy and under the direction of a flagman, passed to the south of the crane. When Mr. Adams reached the construction site he talked to Mr. Sherman, an assistant foreman for the employer; that employee had not witnessed the reported accident. He showed Mr. Adam painted lines on the road which outlined the position of the crane at the time of the accident. The crane was being leveled prior to operation in the placement of more steel pilings on the north side of the road. A leveling operation requires movement of the boom so that pads can be placed under appropriate outriggers. In this instance the boom was swung from a westerly position toward the south, and toward the power line; the boom was about 40 feet long. An oiler stationed at an outrigger, preparatory to placing a leveling pad, received an electrical shock and was injured thereby. Mr. Sherman "indicated" that an electric charge had passed through the crane and outrigger, striking the oiler; he pointed to marks on the sheet piling caused by the electric charge after the oiler was struck. [*11]

On cross-examination, Mr. Adams stated that it was necessary for the crane to be in the indicated position in order to drive the sheet piling on the north side of the road. Upon inspections prior to the accident he had no reason to expect that any part of the crane would come within 10 feet of the power line, and there was no construction necessity for the crane to move anywhere near the power line. His report of accident made to the State of Washington was on a printed form, the first page of which contained boxes adjacent to such phrases as unsafe practice, method or condition. These phrases represented standard determinations to be made in an accident report but Mr. Adams had checked none of the boxes on the report he made concerning his investigation of the accident at the employer's construction site.

William Baily, a safety engineer employed by the Occupational Safety and Health Administration testified that on July 1, 1971 he and an associate were assigned to investigate the accident described hereinbefore. They met with Mr. Adams and proceeded to the construction site where they talked to Mr. Sherman. The information obtained was consistent with that given [*12] to Mr. Adams on June 16. Additionally, Mr. Sherman stated that the power company had been requested early in 1971 to de-energize the power line but had not done so. Also, he pointed to a "fuzzy" area on the lower of two power lines and stated that such area would have been the point of contact if the crane had swung over far enough to strike such wire.

Ronald Tsunehara, a compliance, safety and health officer employed by the Occupational Safety and Health Administration, testified that he accompanied Mr. Baily on July 1 and was present during the conversation with Mr. Sherman. At no time did that employee state that the crane had hit the power line. On his return to the office Mr. Tsunehara filled out forms reporting his investigation of the accident. It was his conclusion that a serious violation of the Occupational Safety and Health Act of 1970 had occurred, and, therefore, he recommended that a citation be issued and a penalty of $650 proposed. With respect to a failure to talk to anyone who had been present at the time of the accident, Mr. Tsunehara stated only that the employee witnesses were not at work on the date of his investigation, and that a non-employee [*13] who had witnessed the accident did not have a listed telephone number; no subsequent attempt was made to talk to these witnesses.

When cross-examined, Mr. Tsunehara stated that the complaint concerning the employer had been made by a Mr. Wendorf, an employee of the power company. He stated also that prior to recommending the citation he had seen the accident report made by Mr. Adams to the State of Washington; he agreed that none of the boxes determining an unsafe practice, condition, method or act by others had been checked. The citation he recommended was issued exactly as prepared by him. Mr. Tsunehara stated that he has had no experience in construction work, and does not know the capacity, reach or lift of a crane. He agreed that the crane had been properly positioned in order to perform the pile driving work on the north side of the road.

Gordon Wendorf, a service lineman for the power company for 27 years, testified that on the day of the accident the lights flickered in his office and he knew the power line had been hit. Upon receiving a call he proceeded to the scene of the accident, arriving there at about 8:15 a.m. He observed a man lying between a crane and sheet [*14] piling. The man had burns on his face, hands and legs. Mr. Wendorf assisted in placing the victim on a stretcher, and then obtained his name and the name of the crane operator. He then used an aerial ladder to get within 5 feet of the power line and observed a bright spot on the wire and two or three loose strands which had peeled off at the edge of the bright spot. The witness estimated the spot as 3/8 to 1/2 inch wide, and the wire to be 1/2 to 5/8 inch in diameter. He expressed the opinion that the wire had been struck, and the belief that it had been struck by the cable suspended from the crane boom. The wire, which carried 55,000 volts, was 46 feet, 6 inches, above ground, and the crane was more than 50 feet tall. On cross-examination, the witness agreed that a discharge by are could cause a bright spot, and that a broken strand could cause a corona discharge. He denied filing a complaint concerning the accident but stated that at the request of the business representative of the linemen's union he had sent him his report of the accident.

The area director for the Occupational Safety and Health Administration, Richard Beeston, testified that he is responsible [*15] for enforcement of the statute, and the issuance of citations and proposed penalties. He signed the citation under consideration herein and it may have been the first citation he ever issued. The citation is the same as that recommended by Ronald Tsunehara but it was his final judgment.

On cross-examination Mr. Beeston testified that his discussions with the investigators prior to issuing the citation had not been recorded; he assumed that they has spoken to people who had first-hand knowledge of the accident and learned for the first time through their testimony at the hearing that they did not talk to anyone who had witnessed the accident. There was no statement in his file from any witness to the accident, and he has no pictures or sketches concerning it. Some sketches were made on a blackboard during his discussions with the investigators but these were not preserved. Mr. Beeston did not talk to Eugene Adams concerning the accident prior to issuing the citation, nor did he take into consideration the report that Adams had made in his capacity as a Washington State safety inspector. The federal investigators had told Mr. Beeston about the existence of the Adams' [*16] report but he could not recall whether they told him of its contents. The witness is a mechanical engineer and has had no experience in construction work. He admitted that an accident such as the one under consideration could have occurred through error on the part of the crane operator or a person directing his operation of the crane; to his knowledge the investigators did not talk to the crane operator. Although the citation does not charge that the crane contacted a power line, Mr. Beeston agreed that contact with the power line constituted the gravity of the offense. It was his opinion that the occurrence of the accident proved that the employer had been engaged in an unsafe practice.

TESTIMONY OF WITNESSES CALLED BY THE EMPLOYER

Michael De Noma testified that he had been engaged in heavy construction work since 1959 but had never been employed by Dale M. Madden Construction, Inc. He described an accident which he had witnessed at a construction site in Seattle, Washington, in February or March 1970. A crane rig which had been used in setting a manhole was left parked in the road overnight. There were power lines nearby which carried not more than 27,000 volts. A cable [*17] extended from the boom of the crane and a choker at the end of the cable was attached to a piece of pipe on the ground. The following morning at about 10.00 a.m. the witness and his brother were standing at opposite ends of the pipe and intended to pick it up. The crane was not in operation but both the witness and his brother looked up to see that the boom was clear of the power lines. It was the estimate of the witness that the boom was 13 feet from the power lines. After looking up, the witness and his brother directed their attentions to the pipe. The brother reached toward the choker but before he touched it "he just come alive with fire from the ground." He was taken to a hospital and survived the accident. The heat was so intense that tires on the crane were burned, there were marks from the ground to the rig, and there were spots in a five-foot area on the boom as though it had been struck by lightning. It was the opinion of the witness that electricity had arced from the power lines to the boom. On cross-examination he stated that because of the marks on the boom he had presumed that an arc from the power lines to the boom had occurred. He admitted the [*18] possible existence of underground electrical wiring in the neighborhood but stated that he knew of none.

Harry Southern, a tractor operator, testified that he had never been employed by Dale Madden Construction, Inc. At the time of the accident under consideration he was parked second in a line of cars that had been stopped by a flagman. His car was about 50 feet from the crane. As he watched the boom began to swing slowly in the direction of the power lines. When it was 6 to 8 feet from the power lines the witness heard a hum and saw a flash out of the corner of his eye. He looked in the direction of the flash and then back upon toward the power lines. The lines were "absolutely still," and the boom and cable hanging from it were still also and were 6 to 8 feet from the power lines. It was the unequivocal testimony of Mr. Southern that a power line was not struck by the boom or cable at the time the oiler was injured. He gave his name as a witness to one of the employees at the scene of the accident but had not talked to the attorney for Dale Madden Construction, Inc. until 15 minutes prior to his testimony at the hearing.

Ferrell Kassebaum, a pile buck foreman, [*19] testified that he was in charge of the operation where the accident to the oiler occurred and was present when it happened. Mr. Sherman, who was interviewed by the investigators, was not at or about the scene of the accident. Immediately prior to the accident. Mr. Kassebaum was giving operating signals to the crane operator. The crane had been moved to a position best suited for pile driving to the north of the road, yet far enough away from the power lines. When a crane rigged for pile driving is moved from one position to another, it then may become necessary to level it so that control can be maintained without fighting the levers. In order to level the crane it was necessary to swing the boom toward the south so that outriggers could be placed at the side of the crane facing the piling. This necessity was caused by the fact that the road tilted towards the piling. The witness is familiar with the hazards presented by power lines. He knew that a manhole in the street was 10 feet or more from the power line because he had paced that distance several times. He was signaling the crane operator in the movement to the new position and the leveling operation. As the crane [*20] was paralleled to the center of the manhole it "leveled up pretty good" and Mr. Kassebaum signaled the crane operator to stop; at that moment the boom and cable were "plus or minus ten feet" from the power line. He then began walking toward the crane in order to assist the oiler in putting pads under the outrigger. In so doing his attention was directed toward the crane operator, the oiler, and the continued levelness of the crane. He observed no motion of the crane as he walked forward. The oiler was struck by an electrical charge when Mr. Kassebaum was a few feet away. This was evidenced by a blinding flash.

REBUTTAL TESTIMON

Gilbert Salter, a registered electrical engineer in the State of Washington, stated that he is employed as a programs evaluator for the Occupational Safety and Health Administration. Using a standard handbook for electrical engineers as a reference he testified that under standard atmospheric conditions a power line carrying 50,000 volts would arc to a ground for a maximum distance of .688 inch; a line carrying 70,000 volts would arc a maximum distance of 1.024 inches. The highest voltage listed, 300,000 volts, would arc to a ground a maximum [*21] distance of 6.72 inches. If there was moisture in the air, the foregoing maxima would be increased about 50 percent. Normally when there is an arc there are burned marks pitted in the material struck. At a distance of one foot there would be no danger of arcing from a line carrying 55,000 volts; a ground 5 or 6 feet from such power line would be totally safe from contact by an arc.

EVALUATION OF THE EVIDENCE

The investigation preceding the issuance of the citation under consideration herein was superficial. The investigators made no attempt to utilize the governing statute which empowers them to require the attendance of witnesses and the production of evidence under oath. None of the persons present at the scene of the accident when it occurred, including the victim, were interviewed. The employee who was interviewed had no direct knowledge of the operation of the crane at the time of the accident, and did not state that the crane or any part of it struck a power line. Furthermore, there was no claim made that such employee had investigated the matter on behalf of the employer or that he was authorized to speak thereof as an agent of the employer. The citation [*22] was recommended for issuance despite knowledge of the fact that the Washington State safety inspector's report of the accident had not charged a safety violation. The area director who issued the citation knew that such a report had been made but he could not recall whether he had been informed concerning the contents of the report. In essence, the citation is based on the complaint which narrates Mr. Wendorf's observations, the fact that an accident occurred, and a cursory investigation which produced no additional probative evidence. The fact that the State of Washington had not ordered a cessation in the driving of piling along the northern border of the road was ignored or disregarded.

In contrast, there was testimony by a disinterested eyewitness that the boom of the crane was about 6 feet away from the power line when the injured oiler was struck. A supervising employee stated that he had directed the crane operator in the movement of the boom and observed no movement of the crane between the time be had signaled the operator to stop and the moment the oiler was struck. It is improbable that this employee, who is familiar with the hazards inherent in power lines, would [*23] have walked toward the crane if its position presented a chance of injury to himself. And there is the testimony of Mr. De Noma concerning a similar occurrence wherein an electrical charge passed through a crane boom and cable which was about 13 feet away from a power line carrying not more than 27,000 volts. Marks were produced upon the boom but no such marks are shown to have been made on the crane or boom under consideration herein.

The Secretary is a proponent of an order which would find that the employer violated the general duty clause published in section 5(a)(1) of the act in the manner charged in the citation. As the proponent of an order the burden of proof is on the Secretary. In order to reach a determination herein which is in agreement with the charges in the citation it is necessary to engage in a deductive process, namely, that the oiler received an electrical shock which could have been transmitted from the power line through the crane when the line was struck by the crane boom or cable, and that the accident could not have occurred any other way. Such deduction requires also the conclusion that the testimony of the three witnesses called by the employer, [*24] two of whom were present when the accident occurred, is incredible. In the absence of the latter testimony, the deductive process inherent in the Secretary's presentation might not be unreasonable. However, that presentation does not contain any evidence which requires or even warrants a finding that the witnesses called by the employer presented incredible testimony. Furthermore, given the evidence considered by the area director who issued the citation, a finding of gross negligence on the part of either the crane operator or Mr. Kassebaum who was directing him, is as warranted as any other conclusion, and the area director admitted as much when questioned concerning such possibilities. Stated differently, the cited failure to maintain proper clearance from boom to live power line is as apt a description of employee negligence as it is of an employer's violation of the general duty clause. In the absence of a proven violation the proposed penalty of $650 is not applicable.

FINDINGS AND ORDER

Upon consideration of the facts of rcord the hearing examiner finds that the Dale M. Madden Construction, Inc., an employer subject to the Occupational Safety and Health Act [*25] of 1970, has not been shown to have violated section 5(a)(1) of that act as charged in a citation filed by the U.S. Department of Labor, Occupational Safety and Health Administration, an authorized representative of the Secretary of Labor. There being no violation proven, the proposed penalty of $650 may not be applied.

Premises considered, it is ORDERED that this proceeding be, and it is hereby, discontinued.