[*1] Before MORAN, Chairman; VAN NAMEE, Commissioner OPINIONBY: MORAN OPINION:

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1 Page 1 of 5 A & W DRILL RENTALS AND LEROY CRANDALL AND ASSOCIATES OSHRC Docket Nos. 271; 726 (consolidated) Occupational Safety and Health Review Commission November 22, 1974 [*1] Before MORAN, Chairman; VAN NAMEE, Commissioner OPINIONBY: MORAN OPINION: MORAN, CHAIRMAN; On August 14, 1972, Review Commission Judge Robert N. Burchmore issued a decision in this case. Thereafter, on August 18, 1972, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission. Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects. CONCURBY: VAN NAMEE CONCUR: VAN NAMEE, COMMISSIONER, concurring: This matter is before us on former Commissioner Burch's order directing review of a decision made by Judge Burchmore. The judge vacated citations for serious violations of the general duty clause (29 U.S.C. 654(a)(1)) as to each of these Respondents. The Secretary has briefed the matter on review and seeks reversal of the judge's decision; the Respondents have not filed briefs. 1 concur in Chairman Moran's disposition to affirm the judge not because I believe it to be correct (I don't) but rather so as to bring the proceedings before this agency to an end. However, because the Secretary has often sought judicial review of our decisions [*2] and because I believe a reviewing court is entitled to have our views, I will state the position I thought should have been taken on these consolidated cases. The relevant facts are as follows: Respondent Leroy Crandall and Associates ("Crandall") was engaged by Hoag Memorial Hospital of Newport Beach, California, to conduct an investigation of the soil at a construction site located south of the hospital. For this purpose Crandall hired Respondent A & W Drill Rentals ("A & W") to drill soil samples. A & W's drill rig consisted of a truck on which was mounted a hydraulic boom which could be extended upright to a maximum height of 38 feet. On the end of the boom was suspended a cable and auger for taking the samples. The rig was posted with signs against operation within six feet or power lines. The operator of the rig was George Reed, assisted by Charles Bourge. Reed was A & W's foreman on the jobsite. Crandall had one employee at the site, Hugh Wagoner, its field representative, whose job was to place each sample in a container and tag it.

2 Page 2 of 5 While the locations of drill samples were designated on a blueprint supplied by Crandall, Reed had authority to determine the [*3] method by which he would take each sample. Reed had been present on other Crandall sites where the location for samples was relocated by A & W because energized lines were proximate to the original sample locations. Both Reed and Wagoner were aware that there were energized power lines on the Hoag Hospital worksite. On October 29, 1971, Reed was preparing to take a sample. He positioned the drill rig underneath a power line and began to raise the boom. Bourge at this time was handling the boom guy line and Wagoner was sitting on the tailgate of his pickup truck about 20 feet from the rear of the drill rig and 40 feet from Bourge. The boom contacted the power line and Bourge was electrocuted, the line was severed and fell to the ground 40 feet from Wagoner. RESPONDENT A & W There is no question that operating a boom where it could contact overhead power lines constitutes a recognized hazard which can cause death or serious injury within the meaning of section 5(a)(1) of the Act. Judge Burchmore vacated the citation as to A & W on the basis of the knowledge requirement for serious violation of section 17(k). n1 The Judge concluded that A & W could not with the exercise of reasonable [*4] diligence have known that Reed would operate the rig in a negligent manner. Vacation on this ground was error. The question under section 17(k) is whether an employer knew, or with the exercise of reasonable diligence could have known, of the presence of the violation. n Footnotes n1 Section 17(k) of the Act provides as follows: For the purposes of this section, 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. 29 U.S.C. 666(k). n2 Significantly, Judge Burchmore decided this question in the affirmative for the Secretary End Footnotes Reed had actual knowledge that there were energized power lines on the job site. He knew or should [*5] have known that he was not to operate within six feet of these lines. He could easily have ascertained that he had positioned his rig beneath a line and should have realized that when the boom was raised it might contact the line. If reasonably diligent, Reed therefore would have been aware of the violation. Reed was more than just an employee of A & W. At the worksite in question he was a foreman, and he had authority to make decisions on behalf of A & W. Moreover, in previous similar situations the sample location had been changed to avoid overhead lines. Under the circumstances and in view of his authority Reed's knowledge of the presence of a violation at the worksite may be imputed to A & W. Southern Soya Corporation, Accordingly, I would conclude that A & W knew or should have known of the violation.

3 Page 3 of 5 As to the matter of an appropriate penalty, A & W has no history of previous violations and it is a small employer. There is no evidence from which I could conclude that A & W acted or did not act with a lack of good faith. On the other hand, the gravity of the violation was [*6] high. There can be no doubt that in the circumstances death was the foreseeable result of contact with the power line, and contact was highly probable. However, only one employee was exposed. On balance, I would have agreed to a penalty assessment of $300. RESPONDENT CRANDALI. Judge Burchmore vacated the citation issued to Crandall for the reason that Reed was not Crandall's employee. In this disposition however the Judge assumed, without so deciding, that Crandall's employee, Wagoner, was exposed to the hazard. On the record I would find that Wagoner was not exposed to the hazard and for this reason would vacate as to Crandall. It is clear that Wagoner remained distant while Reed was positioning the drill rig. He was also distant from the fallen wire. Wagoner therefore was not exposed to the hazard of electrical shock from contact with either the crane or the fallen wire. There is evidence that Wagoner had approached the rig on other occasions, but there is no evidence that he had ever done so when a rig was positioned near electrical wires. I would not affirm a violation as to Crandall merely because there was bare chance that its employee might become exposed [*7] to the hazard. See Arizona Public Service Co., OSHRC Docket 329, BNA 1 O.S.H.C. 1369, CCH E.S.H.G. para. 16,800 (Rev. Com'n., 1973). CLEARY, COMMISSIONER: I withdraw my participation in this decision. My Chief Counsel, whose signature is one of several appearing on the Secretary of Labor's brief on review, inadvertently participated in a Commission meeting considering the case. My Chief Counsel was formerly Deputy Associate Solicitor in the Office of the Solicitor's Occupational Safety and Health Division, U.S. Department of Labor. The listing on the brief was a formality rather than a reflection of active involvement. His activities at the Labor Department involved for the most part the conduct of rulemaking and state plans proceedings, and he had no personal knowledge of the case. Nevertheless, fairness suggests that I do not vote under these circumstances. This confirms, in writing, my statement at the March 25, 1974, Commission meeting. I ask that the parties be supplied with a copy of this memorandum along with any decision in this case. [The Judge's decision referred to herein follows] BURCHMORE, JUDGE: By citation issued November 18, 1971, the Secretary charged [*8] that on October 29, 1971, A & W Drill Rentals committed a serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 in that it permitted employees to work in an area where there were energized high voltage lines and drilling equipment which could come into contact with such lines. A penalty of $500 is proposed. By subsequent citation issued March 29, 1972, on the last day permitted under section 9(c) of the Act, the Secretary charged Leroy Crandall and Associates with a similar violation arising out of the same occurrences on October 29, A penalty of $550 is proposed. Timely notices of contest were filed and this Commission thereby acquired jurisdiction of the resulting proceedings. The cases were assigned to the undersigned Judge for hearing and

4 Page 4 of 5 determination. A prehearing conference was held at Los Angeles on May 19, 1972; the cases were thereafter consolidated and hearing was held at Los Angeles on July 28, At the conclusion of the hearing the parties presented oral argument by their attorneys, and the cases were then submitted on the record. FINDINGS AND CONCLUSIONS The citations arose out of an accident which occurred [*9] on October 29, 1971, at a hospital construction site. The Crandall Corporation had a contract for taking soil samples at the site, and Crandall had engaged the A & W Corporation to do the necessary drilling. Samples were taken at a number of locations, which had been staked out jointly be the employees of the two principals. After several samples had been taken, the drilling rig was moved to another sampling position where high tension line passed overhead. When the A & W operator of the rig (one Reed) raised the boom into operating position, it came into contact with the wire and this resulted in the death by electrocution with the wire and this resulted in the death by electrocution of another A & W employee (a Mr. Bourge). The only other person on the scene was a Randall employee (one Wagoner) who was standing by to receive the samples after completion of the drilling. The evidence shows that A & W is a small operation with five employees managed by the president and part owner, who operates a drilling rig himself. Reed is an experienced operator of the drilling equipment; he was instructed generally to be careful to avoid overhead wires and his rig had prominent signs [*10] on it requiring the maintaining of at least six feet clearance with any lines. Reed knew the high tension line was there and that it was energized. However, after working on the site several days he apparently forgot about the wires and, in the concentration of moving and setting up the rig, neglected to maintain a safe distance. The accident was a direct result of his negligence and failure to adhere to instructions. Wagoner also knew the line was there, and he was near the rig at the time of the accident, but neither he nor Bourge thought to admonish or warn Reed. Section 5(a)(1) requires each employer to furnish employment that is free from recognized hazards likely to cause death or serious physical harm to employees. This requirement is illuminated by the provision of section 17(k) to the effect that a serious violation of the Act exists if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from any practice or method used, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. In this case it is clear that the death resulted from a combination [*11] of the elements set forth in section 17(k): first, the presence of the high tension line, an existing condition, and second, the negligent operation of the rig by Reed, which constituted a practice or method in use at the worksite within the meaning of 17(k). Considering these two factors, it is plain that both of them were necessary ingredients of the unsafe employment which Bourge suffered. As to the presence of the power line, it cannot be seriously disputed that A & W, as the employer, knew or with the exercise of reasonable diligence could have known the fact. But the same cannot be said as to Reed's negligence because no employer could by the exercise of reasonable diligence know that an experienced drilling rig operator like Reed, who was instructed in the avoidance of power lines and who was completely informed as to the presence of the highline on this jobsite, would thoughtlessly run the boom up into a wire that was in full view of himself and of Bourge and Wagoner. There is no evidence in this record that Reed was habitually careless, and there is evidence that he had worked around high tension lines before. In my opinion it is the expressed purpose of 17(k) to hold [*12] that a serious violation is not chargeable to the employer in such circumstances. The Secretary introduced evidence to show that the power line could have been de-energized, and if

5 Page 5 of 5 that had been done there would certainly have been no accident. However, that was not the only lawful method of safeguarding the employees, for it is plain that the samples could have been taken and the work could have been completed in perfect safety if due care had been taken by the rig operator to maintain a safe distance from the power line. In other words, the employer is not shown to have failed to provide safe employment simply because an injury to one employee results from the negligence of another employee. On the contrary, the employer has complied with the general duty clause of section 5 when, as here, he has employed competent workmen, instructed them in the safe operation of their equipment, posted clearance limits on the equipment and permitted them to work on a jobsite where they were both informed of the presence of a power line and able to perform their work while maintaining the prescribed safe clearance. If as I hold here there was no serious violation of the Act by A [*13] & W, an even stronger case exists for the same conclusion as to Crandall. For even if it be found that Wagoner was affected by the danger which brought death to Bourge, that danger resulted from the negligence of a workman who was not even an employee of Crandall (Reed being the sole employee of A & W). I conclude that the Secretary has failed to show that there was any violation of section 5. Premises considered, it is ORDERED that the citations and proposed penalties in these cases be and the same are hereby dismissed and the proceedings discontinued.