Danco Const. Co. v. Occupational Safety & Health Review Com'n

• Decision Date: 08 November 1978
• Docket Number: No. 77-1913,77-1913
• Parties: 6 O.S.H. Cas.(BNA) 2039, 1978 O.S.H.D. (CCH) P 23,140 DANCO CONSTRUCTION COMPANY, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1243

586 F.2d 1243

6 O.S.H. Cas.(BNA) 2039, 1978 O.S.H.D. (CCH) P 23,140

DANCO CONSTRUCTION COMPANY, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION and Secretary

of Labor, Respondents.

No. 77-1913.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1978.

Decided Nov. 8, 1978.

W. Russell Meeks, Barber, McCaskill, Amsler, Jones & Hale, Little Rock, Ark., for petitioner.

Eric W. Cloud (on brief), Atty., U. S. Dept. of Labor, Washington, D. C., argued, for respondent; Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for OSHRC, Washington, D. C., on brief.

Before ROSS, Circuit Judge, MARKEY, Chief Judge, ^* and HENLEY, Circuit Judge.

HENLEY, Circuit Judge.

Danco Construction Company appeals the decision of the Occupational Safety & Health Review Commission fining it $600.00 for committing a serious violation of section 5(a)(2) ¹ of the Occupational Safety and Health Act (OSHA) and 29 C.F.R. 1926.550(a)(15). ² We affirm.

I

Danco is in the business of laying underground utilities. The alleged OSHA violation in this case stems from an accident which occurred while its employees were unloading steel pipe from a flat-bed truck and stacking it on "skids" in preparation for the next day's pipe-laying operation. The boom of the crane which was unloading the pipe came into contact ³ with overhead electric lines, causing the death of one Danco employee and serious injury to another; the two men were holding the ends of a section of pipe which was attached to the crane boom by steel hooks and cables.

An OSHA Compliance Officer investigated the accident scene and made the following factual findings which form the bases for the Commission's decision. The accident occurred in North Little Rock, Arkansas at approximately 10:00 a. m. on a bright, sunny morning. Danco's crew foreman positioned the crane on the shoulder of a public road and to the rear of the pipe truck. He instructed the crew on where to stack the pipe and then left the area. The crane operator began unloading the truck and stacking the pipe on the side of the road. When stacking pipe the crane operator faced the sun. One worker attached the crane's cable to the pipe; the crane lifted the pipe and swung it over the skids; and two other workers positioned the pipe on the skids and released the cable. The electric lines in question crossed directly over the area where the pipes were being stacked, with their height ranging from twenty to thirty feet above the ground. The higher lines carried 13,200 volts of electricity.

The operator admitted difficulty in monitoring the crane's movements. Bright sunlight was shining directly in his face and a large bush blocked his view of one of the workers who was stacking and releasing the pipe. These conditions may have accounted for the extended ten to fifteen second contact the boom made with the electric lines, since the operator was apparently unaware of this contact until he heard one of the men yelling and saw the glove on the deceased worker's hand burning.

Further investigation led the Compliance Officer to conclude that Danco had a history of laxity in its training and supervisory practices. The company was often engaged in unloading steel pipe near electric lines, yet Danco's supervisors did not hold regular safety or training meetings with their crews. Instead, oral safety instructions were given on an ad hoc basis whenever supervisors determined such warnings were necessary to correct unsafe practices. This particular crew had received instruction on the basic operation of the crane and had been warned, in general, to stay away from electric lines; but none of the crew members was ever instructed to maintain the OSHA-required ten foot clearance between the crane and electric lines, nor did the crane's cab contain an OSHA-approved warning placard stating this requirement. Unfortunately, the cab did contain an outdated and dangerously inadequate placard mandating only a six-foot minimum clearance. ⁴ Finally, Danco routinely, as here, permitted its crew to work without direct supervision. This fact is of particular significance in this case since both of the employees involved in stacking the pipe were young and inexperienced, and one of them had been warned about his dangerous behavior only a few days prior to the accident.

As a result of this investigation, the Secretary of Labor issued a citation against Danco alleging a serious violation of the Act because the crane boom was brought within ten feet of energized electric lines, thus causing the serious injury and death of Danco employees. He proposed a $650.00 penalty. Danco filed a timely notice of contest, and the Secretary responded by filing a formal complaint with the Commission. A hearing was held before an administrative law judge who affirmed the Secretary's complaint but reduced the penalty to $600.00. The Commission later granted Danco's petition for discretionary review of the law judge's decision and affirmed it in October of 1977. A timely appeal was then filed with this court pursuant to 29 U.S.C. § 660(a).

II.

In reviewing the Commission's decision, we are mindful of the broad scope and remedial purposes of OSHA. Atlas Roofing Co. v. O.S.H.R.C., 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977); Brennan v. O.S.H.R.C., supra, 487 F.2d at 439. Also, we are bound to apply the substantial evidence test to the Commission's findings of fact and reasonable inferences drawn therefrom. Arkansas Best Freight System, Inc. v. O.S.H.R.C,529 F.2d 649, 654 (8th Cir. 1976); Brennan v. O.S.H.R.C, supra, 487 F.2d at 442.

There is substantial evidence in the record supporting the Commission's finding that the crane boom came within ten feet of electric lines in violation of 29 C.F.R. 1926.550(a)(15)(i) and that this violation was a serious one insofar as it could have, and did, result in the serious injury and death of Danco employees. In the administrative proceedings, Danco's defense to these findings was that it should not be held responsible for the accident because (1) it could not have been aware of any OSHA violation and (2) the accident was the result of the unforeseeable carelessness of its employees. These contentions were rejected by both the administrative law judge and the Commission based upon their determination that Danco could have prevented this accident by adequately training and supervising its work crews. Consequently, the Secretary's citation against Danco was affirmed since the company had permitted its crane to contact electric lines without either de-energizing and visibly grounding them or having insulated barriers erected to prevent the conduction of electricity. 29 C.F.R. 1926.550(a)(15).

On appeal, Danco contends that the Commission's finding of a serious violation of the Act is not supported by substantial evidence. In particular, it argues that the Secretary failed to negative a statutory defense contained in the Act's definition of "serious violation" which relieves employers from liability if they "did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." 29 U.S.C. § 666(j). ⁵ Or, more simply, Danco would require the Secretary to prove by direct evidence that it knew or should have known of the alleged serious violation at the time of the accident. In this respect, it cites us to Brennan v. O.S.H.R.C., 511 F.2d 1139, 1145 (9th Cir. 1975). There the Ninth Circuit stated:

We fail to see wherein charging an employer with a . . . violation because of an individual, single act of an employee, of which the employer had no knowledge and which was contrary to the employer's instructions,...