Brennan v. Butler Lime & Cement Co.
| Decision Date | 05 September 1975 |
| Docket Number | No. 74-1963,74-1963 |
| Citation | 520 F.2d 1011 |
| Parties | 3 O.S.H. Cas.(BNA) 1461, 1975-1976 O.S.H.D. ( 19,967 Peter J. BRENNAN, Secretary of Labor, Petitioner, v. BUTLER LIME AND CEMENT COMPANY and Occupational Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen F. Eilperin, Harry R. Silver, Dept. of Justice, Washington, D. C., William J. Kilberg, Sol. of Labor, Michael H. Levin, Atty., U. S. Dept. of Labor, Washington, D. C., for petitioner.
Clifford C. Kasdorf, Russell M. Ware, Milwaukee, Wis., for respondent.
Before PELL and STEVENS, Circuit Judges, and PERRY, Senior District Judge. *
The Secretary of Labor has petitioned this court to review the decision of the Occupational Safety and Health Review Commission (Commission) in the case of Butler Lime & Cement Company (Butler), OSAHRC Docket No. 855 (Sept. 24, 1974). 1 In that decision, the Commission, by a 2-1 vote, affirmed an administrative law judge's order that had vacated a citation and proposed penalty issued by the Secretary to Butler. The citation alleged a "serious" violation of section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(2). 2
Butler is a Wisconsin corporation that sells and delivers brick, mortar, and other building materials to contractors in the Milwaukee area. To make these deliveries, Butler employs 24 drivers to operate its fleet of 24 vehicles, which includes two brick trucks. The brick trucks are flat-bed vehicles equipped with steel pedestals mounted with mobile crane booms for the loading and unloading of the pallets on which building materials are shipped. These booms can be swung in wide arcs and can be raised nearly vertical from their horizontal rest position. To unload, the driver of such a brick truck raises the boom to the desired angle and then through the motion of a "trolley," a device which moves inside the boom, he places the hauling cable over the center of the material to be lifted. Thus the crane boom enables one man to drive the load from the yard to the customer's premises and there unload it without assistance.
On March 15, 1972, Butler employee Douglas Kapperman was ordered to deliver a load of bagged cement and lime to Commercial Construction Company at a construction site in Milwaukee County. The site, as is usual in the county, contained overhead power wires. Because of grading, the wires in some areas of the site were lower than was typical. The vehicle Kapperman drove was the smaller of the two Butler brick trucks; it was 25 feet long and its crane measured 20 feet. Kapperman had driven Butler cement and dump trucks for 10 years but had operated this brick truck only since December 1971. 3 With his truck boom horizontal, Kapperman drove onto the site between two partly-completed apartment buildings, passed under a series of 4800-volt overhead electric lines which ran between the buildings, and stopped near a cement mixer operated by two Commercial Construction Company employees. Kapperman then turned his truck around and parked it directly under the overhead lines. This position placed the boom eight feet from the lines and required that the boom be raised over and above the wires before unloading could take place. It was Butler's policy that a driver should use his own judgment where to place the material delivered if the driver had been given no special instructions as to the delivery spot.
When Lewis, one of the Commercial Construction Company employees, asked Kapperman whether "he wasn't awful close to the wires," Kapperman just looked at him and continued to unlimber his boom. The two Commercial workers immediately went to the other side of one of the unfinished buildings because, "(i)f he touches those wires maybe we could get it, too." When the men returned ten minutes later, Kapperman was lying dead beside his truck. The crane boom either had touched the power lines or had come near them, with the result that the electricity had passed from the lines through the boom and thence had fatally injured Kapperman.
After an inspection of Butler's yard and the job site following the Kapperman incident, the Secretary of Labor issued Butler a citation 4 for a serious violation of section 5(a)(2). 5 Butler had allegedly failed to comply with safety standard 29 C.F.R. 1910.180(j), which provides in pertinent part:
(j) Operating near electric power lines
(1) Clearances. Except where the electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers not a part of or an attachment to the crane have been erected to prevent physical contact with the lines, cranes shall be operated proximate to, under, over, by, or near powerlines only in accordance with the following:
(i) For lines rated 50 kv. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet.
(4) Overhead wires. Any overhead wire shall be considered to be an energized line unless and until the person owning such line or the electrical utility authorities indicate that it is not an energized line. 6
Butler was also served with a $550 proposed penalty for this violation and was ordered to abate it immediately. The company timely contested the citation and proposed penalty, and a hearing was subsequently held before an OSAHRC administrative law judge. At the hearing, Butler did not deny that on March 15, 1972, Kapperman had so manuevered his truck that the crane boom very closely approached power lines, with the result that Kapperman was electrocuted. Nor did Butler deny that its employee, in so placing his truck and crane, had been in serious violation of standard 1910.180(j). It did deny that it could have known with the exercise of reasonable diligence that Kapperman would engage in such hazardous conduct. It contended that it had adequately trained and instructed Kapperman in the safe operation of the crane. 7
In his decision of January 19, 1973, the administrative law judge set out the following. Butler is one of six corporations which are owned by the same shareholders and which "work together." The corporations seek to keep abreast of the OSHA and Wisconsin regulations that they deem applicable to their business. The OSHA and Wisconsin rules forbidding the operation of a crane boom within ten feet of power lines are "of special local importance since overhead wires are the rule rather than the exception in Milwaukee County." At the time in question, a director and treasurer of Butler, Ross Prange, was in charge of the corporations' safety program. Because of two past incidents, Prange was particularly alert to the danger of operating cranes near high tension wires. At the hearing, Prange was asked:
There had been no meetings for drivers since a group-wide safety meeting in 1957 and a group-meeting in 1959 or 1960 at which safety was one of the subjects discussed. Prange stated that other procedures took the place of formal periodic meetings about safety. In the case of a new man, or of a man changing a piece of equipment, or of a man "rebidding" for a job, the worker would receive two or three days of coaching in the general operation of the vehicle and in safety procedures. Because there were so few brick truck drivers and so few changes in their roster, the training procedure for them was less routine. A new brick truck driver would be coached by an experienced driver or by a qualified member of the supervisory group. The new driver would be warned about high tension wires each time he took out a vehicle; the warning would be repeated whenever he received a disciplinary letter or other reprimand. In addition, according to Prange, safety was stressed in the day-to-day contacts between management and the drivers. These communications from management usually occurred through the dispatchers, who, one or more times each day, handed a delivery order to each driver on duty.
As part of its safety program, Butler displayed a poster, 17 inches by 22 inches, on which was set forth in bold type, with headings in red, the twenty-two general safety rules of the Construction Industry Safety Council, Suppliers Group. Rule 16 read: "Crane Boom, under no circumstances shall be operated within ten feet of power lines." This poster appeared for six months prior to March 15, 1972, on the bulletin board in Butler's office, near the time clock where drivers punched in and out and near the dispatcher's desk. This bulletin board also was used for personnel notices from Butler and from the union and for individual messages to and from the drivers.
Prange testified that he was assisted in safety matters by the manager and the manager's assistant. However, Prange regarded safety instruction in each yard as one of his own duties, and he inspected each yard, including Butler, once a week.
In 1968, when Butler asked Kapperman to qualify as a relief driver on brick trucks, no experienced brick truck driver was available to train him. However, the assistant manager, Mislang, was qualified by skill to do so, and he coached Kapperman on the handling of the boom. The two men went to a site where Mislang demonstrated how to use the boom. He "(p)ointed out the wires," buildings, overhangs, and a fence. He warned Kapperman "not to get too close," but he did not mention ten feet nor did he tell Kapperman that electricity can arc. Mislang was satisfied with Kapperman's progress and skill as a crane operator and made no other trips to assist him or to observe his work.
Mislang...
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