Georgia Elec. Co. v. Marshall, 77-1916

Decision Date21 May 1979
Docket NumberNo. 77-1916,77-1916
Citation595 F.2d 309
Parties7 O.S.H. Cas.(BNA) 1343, 1979 O.S.H.D. (CCH) P 23,567 GEORGIA ELECTRIC COMPANY, Petitioner, v. F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Review Commission, Respondents.
CourtU.S. Court of Appeals — Fifth Circuit

G. Paris Sykes, Jr., John P. Campbell, Atlanta, Ga., for petitioner.

F. Ray Marshall, Secretary of Labor, U. S. Dept. of Labor, Ray H. Darling, Jr., Executive Sec., OSHRC.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for OSHRC.

Allen H. Feldman, Acting Counsel, Eric W. Cloud, Atty., U. S. Dept. of Labor, Washington, D. C., for respondents.

Petition for Review of An Order of the Occupational Safety and Health Review Commission.

Before BROWN, Chief Judge, TUTTLE and THORNBERRY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

In this petition for review, the Georgia Electric Company (the Company) asks us to set aside an Occupational Safety & Health Review Commission (OSHRC) order upholding the assessment of civil penalties against the Company. As a result of an Occupational Safety & Health Administration (OSHA) investigation of a fatality at a Company work site, two citations and a Notification of Proposed Penalty were issued against the Company. The citations alleged that the Company had committed (1) a willful and serious violation 1 of an OSHA highway construction regulation, 29 CFR § 1926.550(a)(15) 2, by permitting its employees to erect a steel light pole within ten feet of an electrical transmission line that had not been de-energized or insulated; and (2) a serious violation of the general duty clause of the Occupational Safety & Health Act (the Act), 29 U.S.C.A. § 654(a)(1) 3, by permitting its employees to operate a hydraulic crane that had a reversed loadline control lever. A hearing was held before an Administrative Law Judge (ALJ), who affirmed the citations and proposed penalties of $6,500 and $650 for the respective violations. The ALJ's decision was subsequently affirmed by OSHRC (Moran, Commissioner, dissenting). On appeal to this Court, we must determine whether there is substantial evidence to support the affirmance of the two citations. As a matter of first impression in this Circuit, we must also define the term Willful as it is used in 29 U.S.C.A. § 666(a). Having considered these questions, we now uphold the OSHRC order.

I. Facts

Because the facts of this case are so important, we begin with a detailed examination of the incidents leading to the citations assessed against the Company. 4 Our chronicle begins at an October 1973 pre-construction conference, touches briefly upon an April 1974 citation against the Company, and finally focuses upon the critical events of July 10, 1974, the day on which Manny Morales was electrocuted while attempting to erect a light pole along U.S. Highway No. 82.

On October 18, 1973, a pre-construction conference was held between the State of Alabama Highway Department (the Department) and the Company, an electrical contractor employing about 140-170 individuals. The conference was held to discuss matters relating to the Company's $550,000 contract with the Department to erect street lighting poles along an approximately 51/2 mile stretch of U.S. Highway No. 82, near Tuscaloosa, Alabama.

Among matters discussed at this conference, the subject of OSHA compliance was raised:

Mr. Smith (a Department representative) asked the contractor if he was familiar with OSHA and Mr. Simmons (a Company representative) said, "Yes sir". Mr. Smith said, "I think most everybody is". Mr. Smith also stated that "we don't get into a lot of enforcement on safety yet, we just haven't gotten, really, we don't know how much to enforce this, that and the other, etc., but we have this little booklet, you may have one, I don't know, it's entitled, 'An Informational Guide on Occupational Safety on Highway Construction Projects' ". 5 Mr. Smith said, "Do you have this?" Mr. Simmons said, "I don't know whether we have that or not, but I imagine so". Mr. Smith said, "If you don't have, you can get that from our Montgomery Office and it is possible we can get you one. I don't have an extra one myself."

App. at 363.

The subject of compliance with federal job safety standards was also treated in the contract between the Company and the Department:

V. SAFETY; ACCIDENT PREVENTION

In the performance of this contract, the contractor shall comply with all applicable Federal, State and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on his own responsibility, or as the State highway department contracting officer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.

Id. at 376.

Subsequently, in April 1974, the Company was provided with a copy of the OSHA safety and health regulations for the construction industry, Part 1926 of Title 29 of the Code of Federal Regulations, including section 1926.550(a)(15). The material was supplied as part of an OSHA investigation of an electrocution that occurred on April 8, 1974, at a Company work site in Albany, Georgia. As a result of that investigation, the Company was cited for allowing an employee to work too near an electric power circuit that had not been de-energized or otherwise guarded. The Company was charged with a serious violation of 26 CFR § 1926.400(c)(1). The charge was uncontested, and the Company paid a $500 fine.

Meanwhile, work was progressing at the Highway No. 82 project site, where Job Superintendent Hugh L. Bronson conducted weekly safety meetings with the employees. The meetings were concerned with a variety of matters affecting employee safety. At the meetings, the employees were warned to be careful in erecting light poles near electric power lines but were not given specific instructions on the subject.

The accident from which the instant citations stem occurred on July 10, 1974. On that day, a four-man pole-setting crew had been assigned to erect steel light poles along Highway No. 82. The pole-setting crew consisted of a boom truck operator who worked the various levers controlling the truck's pole-setting equipment and three other crew members who performed on-the-ground functions such as guiding the poles onto the concrete bases and securing the poles to the bases. A fifth person also worked with the crew as a flagman, but he had no responsibility for erecting poles.

On the morning of the fatal accident, D. R. Carroll, the regular boom truck operator for the pole crew, did not report for work. Lamar Carroll, the job foreman and the son of D. R. Carroll, assigned Harold Lee as the replacement operator for the day. The foreman gave the day's instructions to two other members of the crew, Robert Humphreys and Manny Morales. The foreman told them that the crew was to begin erecting poles at the far end of the project and work backwards towards the project headquarters, setting as many poles as the crew "thought they could set." He further told them to "stay away" from power lines and advised them that they might not be able to erect the first pole across the river. The ultimate decision of whether to erect the pole or not, however, was up to the crew. 6

Foreman Lamar Carroll had several reasons to be concerned about this first pole across the river. In the first place, he knew that his father D. R. Carroll had previously foregone erection of that pole because he had felt that it was too close to overhead live wires. Moreover, on the morning of the accident, Assistant Project Manager Robert Jack McDaniels had cautioned Foreman Carroll not to attempt to set poles that had been skipped previously. 7 At the same time, Job Superintendent Hugh L. Bronson gave a similar warning, telling Carroll not to set any poles near energized lines since the regular boom truck operator was absent. 8

All of the above was consistent with the Company's usual procedure, which was for the pole-setting crew to skip those poles that were too close to live power lines until arrangements could be made to de-energize those lines. 9 There were not, however, any precise guidelines as to what distance was "too close." Although Foreman Lamar Carroll testified that it was taken for granted that the length of the pole's crossarm provided the limitation, 10 there was no such general rule. 11 Instead, as the testimony of McDaniels, 12 Bronson, 13 Lamar Carroll, 14 and Lee 15 shows, the Company employees were merely to use their "common sense" in determining whether a pole was too close to overhead wires. None of the parties involved in the July 10, 1974 accident was aware of the OSHA regulation providing for a specific clearance requirement. 16

The replacement operator, Harold Lee, was a twenty-year-old college student, a summer employee who had been working for the Company for approximately two months. Lee had assisted in the erection of approximately 24 poles. He had also operated the boom truck to erect from 6 to 21 poles, but he had only done so under the supervision of the regular truck operator. Lee had not been informed of any specific minimum clearance distance within which he must not operate the crane near an energized power line. On the day of the accident, the only instructions Lee personally received from the foreman were that he was to operate the boom truck and that Robert Humphreys knew where to erect the poles.

In addition to Lee, the other members of the pole crew were David Snodgrass, Manny Morales, and Robert Humphreys. Like Lee, Snodgrass had worked for the Company for about two months. Humphreys and Morales had worked for the Company for about four or five weeks. These men were either college students,...

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