Frohlick Crane Service, Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 19 August 1975
• Docket Number: No. 74-1489,74-1489
• Parties: 3 O.S.H. Cas.(BNA) 1432, 1975-1976 O.S.H.D. ( 19,922 FROHLICK CRANE SERVICE, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Peter J. Brennan, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 628

521 F.2d 628

3 O.S.H. Cas.(BNA) 1432, 1975-1976 O.S.H.D. ( 19,922

FROHLICK CRANE SERVICE, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Peter J. Brennan, Secretary of Labor, Respondents.

No. 74-1489.

United States Court of Appeals, Tenth Circuit.

Argued April 30, 1975.

Decided Aug. 19, 1975.

William W. Webster, Denver, Colo. (Gelt & Webster, Denver, Colo., on the brief), for petitioner.

Barbara L. Herwig, Atty., Dept. of Justice (Carla A. Hills, Asst. Atty. Gen., and Stephen F. Eilperin, Atty., Dept. of Justice; and of counsel: William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for App. Litigation, Allen H. Feldman, Acting Asst. Counsel for App. Litigation, and Judith A. Burghardt, Atty., Labor Dept., on the brief), for respondents.

Before SETH, HOLLOWAY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

This proceeding arises under the Occupational Safety and Health Act of 1970. 29 U.S.C. § 651 Et seq. Frohlick Crane Service, Inc., the petitioner in this court, seeks review of a decision and order of the Review Commission in which Frohlick was adjudged guilty of a serious violation of 29 C.F.R. § 1926.550(a) (15)(i) and assessed a $500 fine. Frohlick does not deny that there was in fact a violation of the safety standard here involved, and its sole contention is that it was not an "employer" within the meaning of the Act. A review of the facts will place the matter in context.

Frohlick is engaged in the business of leasing heavy cranes, and in connection therewith Frohlick supplies one of its own employees to operate the leased crane. Under a written one-day lease agreement, Frohlick leased a 15-ton hydrocrane, with operator, to U. S. Elevator Company, a subcontractor who was at the time engaged in installing hydraulic shafts in an apartment complex then under construction. A clause in the lease provided that the leased equipment, and the person operating the leased equipment, "are under Lessee's exclusive jurisdiction, supervision, and control."

The operator of the crane leased by Frohlick to the Elevator Company was one Wesley Lindsey, who had been in the employ of Frohlick for some two months. At the jobsite, an employee of the Elevator Company outlined the work to be performed, i. e., the placing of the hydraulic shafts, but left it to Lindsey, the crane operator, to determine the manner in which the work was to be performed. In other words, only Lindsey knew How to operate the crane, and though the Elevator Company indicated the work to be done, no employee of the Elevator Company exercised any control over Lindsey in the mechanical operation of the crane.

On the day in question, Lindsey had completed the actual placing of the hydraulic shafts and he was in the process of removing the crane from the jobsite when the crane boom came in contact with an uninsulated overhead power line carrying 7,620 volts. This resulted in the immediate electrocution of a laborer standing near the crane. Lindsey escaped unharmed, although he was himself in danger when the boom touched the overhead line.

Based on this sequence of events Frohlick was given two citations for violation of the Act. The first citation, which is not involved here, was for several nonserious violations of the Act arising out of Frohlick's maintenance of its shops and yards. In the second citation Frohlick was cited for a serious violation for failing to keep a minimum clearance between the crane and the power line. In connection with this latter citation Frohlick was served with a proposed penalty of $500 and ordered to abate the violation immediately. After a hearing the Administrative Judge affirmed the citation and penalty, which decision was subsequently upheld by the Review Commission. Frohlick now seeks review of such order.

The declared purpose of the Act is to assure so far as possible safe and healthful working conditions for every working man and woman in the Nation. Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1975), and Brennan v. Occupational Safety & Health Review Commission, 505 F.2d 869 (10th Cir. 1974). The duty to insure such safe and healthful working conditions is cast primarily on the employer. Specifically, 29 U.S.C. § 654 provides as follows:

"(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;

(2) shall comply with occupational safety and health standards promulgated under this chapter."

The particular standard with which we are here concerned is 29 C.F.R. 1926.550(a)(15)(i), which reads as follows:

"For (power) lines rated 50 kV. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet."

As indicated, Frohlick concedes that there was a violation of the aforesaid standard requiring a minimum clearance of 10 feet between a crane and a power line rated 50 kV. or below. Its sole position in the present proceeding is that its employee, Lindsey, the crane operator, had been "loaned" to the Elevator Company and that accordingly the Elevator Company, and not Frohlick, was the "employer" against whom the citation should have issued. In thus arguing Frohlick relies on what it describes as the common law doctrine of "borrowed employee." In this connection it asserts that the "borrowing employer" is the one who under the Act has the responsibility of providing a safe place for employees to work and, in the instant case, of making certain that there be compliance with the standard...