JAMES E. ROBERTS COMPANY; AND SOULE STEEL COMPANY
OSHRC Docket Nos. 103; 118 (Consolidated)
Occupational Safety and Health Review Commission
April 16, 1974
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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge Harold A. Kennedy, dated October 2, 1972, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § § 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.
CONCURBY: CLEARY (In Part)
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in the disposition as to respondent Soule Steel Company (No. 118), but do not agree with the result reached by the majority as to James E. Roberts Company (No. 103), hereinafter referred to as Roberts.
Review of the Administrative Law Judge's decision was directed on the issue of "Whether James E. Roberts Company, the prime contractor herein, should be deemed a joint employer of the crane operator for purposes of coverage under the Act." My opinion is addressed to this question, which I would answer affirmatively.
Roberts was the prime [*2] contractor engaged in the construction of an addition to the Sequoia Hospital in Redwood City, California. Respondent Soule Steel Company, hereinafter referred to as Soule, was a subcontractor performing the reinforcing steel work. Under their contract, Roberts was to supply the services of a crane suitable for setting and holding column steel and spirals, together with a competent operator, for the use of Soule. Pursuant to this contract, Roberts leased the crane and its operator. The crane operator was paid by the lessor.
Roberts was also obligated to furnish reasonable storage facilities for its subcontractor. The reinforcing steel, or rebar, was stored beneath temporary power transmission lines carrying 12,000 volts. The temporary transmission lines were not insulated.
In building the hospital addition, an excavation was left open so that the crane could enter and be used in placing the steel. On the day of the fatality, Soule's supervisor left the area in order to find a forklift for moving the reinforcing steel to a position where the crane could pick it up without leaving the excavation. The crane was moved at the direction of a Soule employee to the access [*3] road and close to the storage area. It was operated there. Shortly thereafter, this same employee, a Mr. Rodriquez, was electrocuted as he held onto and walked with a bundle of reinforcing steel attached to the crane cable. The boom of the crane or the cable came into contact with the uninsulated temporary power transmission lines. The crane operator had raised concern about the proximity with overhead wires, but nevertheless, had proceeded at the direction of Rodriquez with the boom extended "all the way up."
Subsequent to a compliance officer's inspection both respondents were issued citations alleging that each of them had violated section 5(a)(1) of the Act. n1 The Administrative Law Judge affirmed the citation and proposed penalty as to Soule and vacated the same as to Roberts on the grounds that the Secretary had failed to prove that any Roberts employee was exposed to the hazard. For the following reasons, I would find Roberts in violation of the Act.
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n1 Section 5(a)(1) of the Act provides: 5(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;
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This case should turn on the issue of whether the crane operator was an "employee" of Roberts within the meaning of section 3(6) of the Act. This section defines "employee" as:
. . . . an employee of an employer who is employed in a business of his employer which affects commerce.
This statutory definition, as well as that of "employer" in section 3(5), seems to be drafted with the contours of constitutional coverage in mind. The definitions do not expressly require that ordinary employer-employee relationships be adhered to.
The term "employee" cannot be construed solely according to common law concepts of master and servant. The meaning of the term "employee" as used in other social legislation such as the National Labor Relations Act, the Fair Labor Standards Act, and the Social Security Act has arisen in numerous cases. These cases are virtually unanimous in holding that the definition of employee as used in the respective statutes is not restricted to a technical common law meaning. See e.g., N.L.R.B. v. Hearst Publications, 322 U.S. 111 (1944); Rutherford Food Corporation v. McComb, [*5] 331 U.S. 722 (1947); Walling v. Portland Terminal Co., 330 U.S. 148 (1947); Goldberg v. Whitaker House Cooperative, 366 U.S. 28 (1961).
It is well settled that the meaning of the statutory term "employee" is to be determined on the basis of the purpose and policy of the legislation in question. United States v. Silk, 331 U.S. 704 (1947). Section 2(b) of this Act sets forth Congressional policy in the following terms:
The Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . .
Clearly, the Act which is remedial in nature seeks to protect the worker. In order to accomplish this purpose, it is necessary to look to an employer who controls the working environment. Whether the employer controlling work environment is also the employer for wage or tort purposes should not be a governing factor.
Asserted employer-employee relationships brought into issue under the Act must, of course, be examined in light of the realities of the asserted relationship and the right of direction and control over the asserted employee. But given the express [*6] purpose and policy of the Act, these should be tempered by the degree to which the asserted employer has the power to control the work environment. In multi-employer situations, such as this, there may be no other way of affording protection from safety and health hazards to employees. Compare Morey, "The General Duty Clause of the Occupational Safety and Health Act of 1970," 86 Harv. L. Rev. 988, 998 (1973).
Based on the above, I would find the following facts to be determinative on the issue of whether respondent Roberts bears responsibility under the Act. There is uncontroverted evidence that the Roberts' job superintendent knew that the temporary power transmission lines carrying 12,000 volts were not insulated and that there was clear danger in operating a crane close to the lines. Further, he knew that reinforcing steel was stored under the lines. He participated in the decision to store steel in that location. He had discussed the hazards of crane operations in that area and he had seen cranes operating at that location on prior occasions and on the day of the accident. Finally, the Roberts' job superintendent testified that if he observed the crane [*7] operating improperly, he had the authority to have the operation halted and could have the crane company (lessor) discharged at any time. Thus, the Roberts' job superintendent, aware of the hazard, having actual knowledge of dangerous crane operations, and having the authority to abate the hazard, failed to exercise his authority to protect workmen, who, while not on the Roberts' payroll, were furthering its business. Under these circumstances, I conclude that respondent Roberts was, for the purposes of this Act, at least a joint employer of the crane operator along with Soule.
Under the Commission's own precedent in Gilles & Cotting, No. 504 (October 9, 1973), the result would be the same. Supervisors for either Soule or Roberts had power to direct the crane operator not to work in an area where contact with the power lines was possible. This is sufficient control to establish a joint employment relationship even under the "hornbook" test of that decision.
Under these circumstances, I would find that Roberts and Soule are in violation of the Act because they were joint employers of the crane operator, each having sufficient control over his activities and his work environment [*8] to prevent exposure to the electrical hazard.
[The Judge's decision referred to herein follows]
KENNEDY, JUDGE, OSAHRC: On September 20, 1971, Jesus (Jesse) Martinez Rodriquez, an iron worker employee of Respondent Soule Steel Company (Soule), was electrocuted on a worksite in Redwood City, California as he held onto and walked with a bundle of reinforcing steel attached to a cable of a crane owned by Coast Crane Company (Coast). The worksite was being used in the construction of an addition to the Sequoia Hospital in that city. Electrical power had been supplied to the hospital by underground lines. Excavation for the new addition required temporary relocation of the lines. The relocation of the lines was carried out by an electrical subcontractor of Respondent James E. Roberts Company (Roberts) working under the supervision of the Pacific Gas and Electric Company (PG & E) representatives and involved the overhead stringing of three temporary uninsulated wires between two light poles.
Respondent Roberts Company was the prime contractor for the job, and it had subcontracted with Respondent Soule Steel to furnish the reinforcing steel for the job. Coast Crane had [*9] sent the crane, along with its operator, James Tresslar, to the construction site at the request of Roberts Company.
The Secretary of Labor (Secretary) investigated the accident, and on October 6, 1971, his Department issued citations against the Roberts and Soule firms charging "serious" violations of the "general duty" clause (Section 5(a)(1)) of the Occupational Safety and Health Act of 1970. The Secretary did not cite Coast Crane or any other firm as a result of the investigation.
By notices dated October 6, 1971, the Secretary advised each of the Respondents that a penalty of $600 was being assessed for the alleged violations. n1 Thereafter, the Secretary filed complaints against each Respondent, and each Respondent filed an answer. On December 17, 1971, the Secretary filed a motion for the "consolidation and joint hearing" of the cases, which motion was granted by the Review Commission on December 22, 1971.
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n1 At the hearing, counsel for the Secretary moved to increase the proposed penalty against Respondent Roberts to $650 on the ground that Roberts' "size" warranted only a 5% reduction of the unadjusted penalty rather than a 10% reduction (Tr. 26, 481-2).
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A prehearing conference was held in San Francisco, California on January 25, 1972. The cases were tried together on April 17, 18, and 19, 1972 in San Francisco, California. The Secretary and both Respondents appeared by counsel. Such counsel thereafter filed proposed findings, opening briefs and reply briefs. James Tresslar, the crane operator, was also represented at the hearing as an "affected employee" by counsel. Local 377 of the International Association of Bridge, Structural, Ornamental and Reinforced Ironworkers Union (San Francisco), which represents all of the other allegedly affected employees (Tr. 25), did not appear or otherwise participate in the proceedings. n2
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n2 The complaints allege that Local 3, International Union of Operating Engineers (San Francisco), represented the crane operator. He was not a member of the Union, however, and the complaints were amended to reflect that fact (Tr. 25).
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JURISDICTION AND ISSUES [*11]
Both Respondents deny any violation of the general duty clause of the Occupational Safety and Health Act as alleged in the complaints and oppose assessment of any penalty. n3 They do not contest the Review Commission's jurisdiction or any other essential averment in the complaints, however.
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n3 Respondent Roberts stipulated at the hearing that the proposed penalty was reasonable, if in fact there was a violation (Tr. 474).
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Among the stipulations approved in the prehearing order was one to the effect that Respondent James E. Roberts Company is a partnership engaged as a general contractor in construction work with its office being located at 980 41st Street, Oakland, California. Respondent Roberts admits that it uses equipment, materials, and supplies received from outside of the State of California. Roberts also stipulated that, for the purpose of the proceeding, it is an "employer" engaged in a business affecting commerce within the meaning of Section 3(5) of the Act (Prehearing Order Stip. 3). It employs [*12] 50 employees a day on the average at its various worksites, 25 of them being at the Sequoia Hospital worksite. It does an annual business of $6 million (SX 1 AB). n4
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n4 "SX" indicates Secretary's Exhibit. The suffix "AB" indicates that an exhibit is in evidence in Dockets 103 and 118. An exhibit bearing only the letter "A" indicates that the exhibit is in evidence only in Docket 103 (Roberts). The use of the letter "B" indicates that the exhibit was received only in Docket 118 (Soule). See Tr. 11 and 133-5.
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The prehearing order also approved stipulations to the effect that Respondent Soule Steel Company is a California corporation engaged in supplying and placing of reinforced steel with its principal place of business being located at 1750 Army Street, San Francisco, California; that it is "engaged in a business affecting commerce" within the meaning of Section 3(5) of the Act; and that it employs in excess of 100 employees. The contract entered into between Respondent Roberts and Respondent Soule provides [*13] that Respondent Soule is to be paid $633,457 for the basic installation of the reinforcing steel in the Sequoia Hospital addition (SX 7 AB).
Based on these undisputed facts, the undersigned finds that there is jurisdiction over the subject matter and the parties.
The citations issued to both Respondents allege that "an employee was fatally injured" due to the "employer's failure" to prevent a crane from coming in contact with energized lines. Paragraph IV of the complaint in Docket 118 charges that Soule Steel violated Section 5(a)(1) of the Act:
in that respondent caused or permitted a crane to operate in an area of high energized voltage lines without taking action to deenergize the lines or installing an insulating barrier to prevent the crane from contacting the lines, while employees were working in proximity to the crane (emphasis added).
The language contained in paragraph IV of the complaint in Docket 103 (Roberts) is identical to that quoted above except that the italicized words are omitted. Both complaints allege that the violations occurred on September 21, 1971, but counsel stipulated that the Secretary was charging Respondents with violating the Act [*14] only on September 20, 1971 (Tr. 197). Paragraph V of both complaints avers that the violation alleged as to each Respondent was a "serious" one within the meaning of Section 17(k) of the Act in that each "knew, or could with the exercise of reasonable diligence have known, of the presence of the violation."
Paragraph VIII of the complaint in Docket 118 alleges that "approximately five (Soule) employees, employed as reinforced steel workers by Respondent, and a crane operator" (parenthetical word added) were affected by the alleged violation and the comparable paragraph of the complaint in Docket 103 alleged that "approximately five reinforced steel workers and a crane operator employed by respondent" (Roberts) were affected by the alleged violations. In denying violations of the Act, each Respondent asserts certain affirmative defenses. Respondent Roberts asserts in its answer that it had no power to de-energize the lines and no control over operation of the crane. It insisted from the outset that the crane operator was not an "employee" of Roberts (Prehearing Tr. 35). n5 Respondent Soule's answer admits that the decedent Rodriquez was one of its employees but asserts [*15] that if any violation occurred it involved actions of persons (i.e., the crane operator and/or Rodriquez or Respondent Roberts) not attributable to it. Prior to trial, Respondent Soule stipulated that five to seven of its employees, including decedent Rodriquez, were employed at the worksite and that approximately five were "affected employees" by the alleged violation (Prehearing Order, Stips. 33 and 17).
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n5 After the trial, the Secretary's counsel moved for amendment of paragraph VIII of the complaint in Docket 103 so as to include Roberts' job superintendent, Frank Vecchio, as an affected employee, along with the crane operator, on the ground that the issue had been tried with consent of the parties. Respondent Roberts opposes the motion, denying that the record supports such motion. The undersigned finds that the record does not, in fact, support such motion, and it is, accordingly, being denied.
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The principal questions raised, thus, are: whether either or both of the Respondents violated the Act, in a "serious" [*16] way or otherwise; and, if so, as to which "employee" or "employees" and what penalty or penalties should be assessed.
Section 5(a)(1), the general duty clause, provides that each employee:
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.
Section 17(k) of the Act provides that:
For 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.
Section 17(j) reads:
The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the [*17] violation, the good faith of the employer, and the history of previous violations.
SUMMARY OF EVIDENCE
Counsel for the Secretary called the following as witnesses: Charles Vecchio, Roberts' job superintendent at the Sequoia Hospital worksite; Frank Wallach, Soule's job superintendent at the worksite; James Tresslar, the crane operator; Jerold Kole, partner and superior of Mr. Tresslar in the now defunct Coast Crane Company; two eye witnesses to the accident, Eldon Ellis, M.D., a physician who gave first aid to Mr. Rodriquez, and Torsten Magloth, a security guard; John F. Bernardo, a Pacific Gas and Electric official who investigated the accident; and two Department of Labor compliance officers who investigated the accident, William E. Stock and F. Lee Lawrence. The Secretary's counsel also offered certain documentary exhibits -- including a copy of the contract which Roberts negotiated with Soule for the installation of the reinforcing steel work (SX 7 AB); accident reports prepared by the Redwood City Police Department and the Pacific Gas and Electric Company (SXs 3 AB and 13 AB); death certificate of Mr. Rodriquez (SX 12 AB); the manufacturer's printed specifications for the [*18] crane involved in the accident (SX 11 AB); a diagram and photographs of the accident site (SXs 6 AB, 4 AB-1 through 4 AB-9 and 5 AB-1 through 5 AB-6); a copy of section 385 of the California Penal Code (SX 8 AB); and copies of certain State of California safety orders (Sections 1587 and 1768, SXs 9 AB and 10 AB) -- which were received in evidence by stipulation. Mr. Edward F. Winters, a general partner of the Roberts Company, testified on behalf of Respondent Roberts. Respondent Soule recalled its job superintendent, Frank Wallach, to testify for it.
The basic facts are not really in dispute. They concern primarily the physical condition of the hospital worksite on September 20, 1971, particularly in the early afternoon of that day, and the work that was being performed there at that time.
Respondent James E. Roberts Company was employed as the general contractor to build an addition, consisting of three increments, to the Sequoia Hospital, an existing 500-bed facility located in Redwood City, California. The actual work began on the project on March 1, 1971 (Tr. 110). Respondent Roberts subcontracted with Respondent Soule Steel Company to furnish and install the [*19] necessary reinforcing steel. Roberts was to furnish access roads, "reasonable storage," hoisting facilities and a "suitable crane . . . for setting and holding of column steel and spirals" (SX 7 AB).
The worksite can best be visualized by examining the diagram in evidence (SX 6 AB), though not drawn to scale (Tr. 478), along with the photographs that were taken by representatives of the Redwood City Police Department and Pacific Gas and Electric Company (SX 4 AB 1-9 and SX 5 AB 1-6). The hospital grounds are bounded on the south by Whipple Avenue and on the west by a private entrance road. The south wall of the existing hospital building (using distances indicated on the diagram, the Prehearing Order and accident reports as a guide) is approximately 235 feet north of Whipple Avenue; its west wall is approximately 70 feet east of the private road (Prehearing Order Stip. 38 and Tr. 683). Increment No. 3 is not shown on the diagram and is not relevant to the proceedings. Increments No. 1 and No. 2 were being added as an addition to the hospital in a direct line to the south toward Whipple Avenue. The increment No. 1 part was nearer to Whipple Avenue, and increment No. [*20] 2 was nearer to the existing hospital (Tr. 108-9, 176, 687).
In building the hospital addition an excavation hole, approximately 40' long and 45' wide at the north end of increment No. 1 (marked "J.T." and "Access to Lower Elevation" on the diagram), was left open so a crane could enter and be used to place the steel work (Tr. 143-4, 681-7).
The 70 feet strip of land running north and south between the private road and the existing hospital was in use during the construction of the hospital addition primarily as an access road and is so identified on the diagram.
Prior to commencing construction on the hospital addition electrical power had been supplied to the hospital by means of underground lines, running in a northeasterly direction through the 70' wide access strip from the southwest corner of the jobsite to the transformer room located near the southwest corner of the existing hospital building (indicated by the green, diagonal line on the diagram).
The power lines could not be de-energized during the period of construction of the hospital addition as the hospital could not operate without electricity. It was necessary, therefore, to re-locate the underground wires before [*21] any excavation could begin (Tr. 76-7, 386).
Roberts employed an electrical subcontractor, Fishbach and Moore, to re-locate the lines (Tr. 80). Working under the supervision of the PG & E (Tr. 82, 385, 389), the subcontractor re-routed the electrical power into the hospital by stringing three temporary overhead lines at a height between 34' and 40' n6, from a pole located at the southwest corner of the jobsite near Whipple Avenue in a northerly direction, parallel to and along side the private entrance road, to a second or "riser" pole for a distance of 198 feet. The temporary lines made a 90 degree turn at the riser pole and went east into the hospital transformer room through an insulted "bundle" encased in a steel pipe for a distance of approximately 65 feet (SX 13 AB; Tr. 361, 383, 393, 682; Prehearing Order Stips. 38-40). The wires running between the poles were not insulated, although they carried 12,000 volts of electricity (Tr. 102-3, 367, Prehearing Order Stip. 41). Notices were posted on the poles indicating the presence of high voltage lines (Tr. 367-8).
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n6 The lowest of the three wires was 34.1' above the ground at each pole, and the highest was 40' (Tr. 361-2).
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Mr. Bernardo, a general foreman for the Pacific Gas and Electric Company, testified that the temporary installation was designed by PG & E and was built in accordance with "standard" practice. He agreed that it would have been safer, but much more expensive, to also insulate the temporary lines running between the two poles (Tr. 385-7).
Space for storage of materials and ingress and egress to the construction site was very limited. For that reason the reinforced steel, called "rebar", was delivered in limited amounts and was stored on the construction site near Whipple Avenue and on the access road strip beneath the temporary electrical power lines as indicated on the diagram (Tr. 50-1, 89-100, 139-40, 684).
Roberts' job superintendent, Mr. Charles Vecchio, was in charge of its operations at the construction site for "coordinating all the trades, subcontractors, building the building" (Tr. 44). Mr. Frank Wallach was Soule's job superintendent and in charge of Soule's operations at the worksite (Tr. 136, Prehearing Order Stip. 27). Steel was ordered and delivered to the jobsite by flat [*23] bed trucks on an as needed basis. Mr. Wallach would consult with Mr. Vecchio and it was determined jointly by them where the steel was to be stored (Tr. 51-2, 100, 140). Pursuant to its contract with Soule, Respondent Roberts had two forklifts at the jobsite and would arrange for the rental of a crane with an operator on an hourly basis as the need would arise (Tr. 101, 679-80).
Coast Crane Company was contacted on occasion by Roberts to furnish a crane with an operator at the worksite, usually for the use of Soule Steel. n7 When this occurred, Roberts paid rental charges directly to Coast Crane at the rate of $24 an hour, which included the services of an operator for the crane (Tr. 54, 58-9, 421, 424). Coast paid Crane Operator Tresslar wages at the rate of $6 an hour for an eight hour period, at the rate of $9 an hour if he continued to work longer than 8 hours (Tr. 259). Coast was not "union" (although one partner was a member), and the cost of its services was "a couple of dollars less" than its competitors (Tr. 421). Mr. Vecchio testified that Coast Crane was used by Roberts because their services were usually available, reasonable in cost, and "we were satisfied [*24] by the way they handled themselves" (Tr. 101-2).
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n7 The record shows that Roberts had rented cranes from firms other than Coast. Roberts had assigned cranes to other subcontractors on the job. Roberts had rented cranes for its own use at the jobsite See Tr. 70, 104, 200, 237.
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The testimony of both job superintendents was to the effect that Roberts Company had the authority to have a crane removed from the worksite, along with its operator. If the crane operator did not carry out the instructions of the subcontractor, Roberts' job superintendent would have been asked to secure another crane and operator (Tr. 86-89, 170, 176).
On Friday, September 17, 1971, Coast Crane sent a crane with its operator, Mr. Tresslar, to the hospital construction site at the request of Roberts' job superintendent. Mr. Tresslar said that he had been to the site 10-15 times before (Tr. 199, 254). The crane was a Grove hydraulic truck crane, Model TD-100, and was assigned to Tresslar to maintain and operate. The crane had a telescopic [*25] boom with a 17' jib extension. When fully extended with the jib, the boom was 72' in length. The base of the boom was 4 feet above the ground. The crane could be elevated to a 75 degree angle (70 degrees from the ground, Tr. 204-5) and rotate 360 degrees (Prehearing Order Stips. 34-36, SXs 11 AB and 13 AB; Tr. 202-5, 236). There were notices on the crane warning against its use, or positioning it so it could operate, "within 6 feet of high-voltage lines" (SX 4 AB 7 and 8; TR. 61, 143).
When Mr. Tresslar reported to the construction site with his crane on Friday, September 17, 1971, Roberts' superintendent, Mr. Vecchio, explained that he would be moving steel for Respondent Soule for the next few days (Tr. 69-70, 199-201). Mr. Tresslar moved his crane into the excavated area and unloaded steel from trucks that backed on to the access road. The crane was positioned in an east-west direction and continued to operate in the hole throughout that Friday and on the morning of the following Monday, September 20, 1971 without the boom ever extending more than "maybe four to five feet" over the east line of the access road (Tr. 261-4; also 143-55; 161-2, 206-7, 315-16). The [*26] record indicates that there were approximately five Soule employees (i.e., workers on the Soule payroll), including Mr. Rodriquez, working in the area of the crane under the supervision of Soule Superintendent Wallach on September 20, 1971. One Soule employee would give hand signals to the crane operator -- to raise the load, swing around, etc; other Soule workers would assist the crane operator by tying or untying the steel bundles. Soule Superintendent Wallach gave hand signals to the crane operator on that date, but other Soule workers, including Rodriquez, gave directions to the crane operator (Tr. 145, 149, 156-7, 207-10, Prehearing Order Stips. 17-18, 27-29).
Operation of the crane in the hole or excavation area resumed after lunch on September 20, 1971 under the supervision of Soule Superintendent Wallach. The crane was being used at the time to place steel in the area to the north near the transformer room. Around 1:30 or 2 P.M., Mr. Wallach left the immediate area of the crane operation and went to the Roberts' job office situated about a "city block" to the north. Before leaving, he told Mr. Rodriquez that he was going to get a fork lift so that steel stored below [*27] the open wires could be moved to where the crane could pick it up. He testified that he expected to be gone for 10 or 15 minutes and that he left no particular instructions. He stated that he did expect that the remaining steel in the hole ("one or two bundles", Tr. 703) would be moved in his absence (Tr. 159-63, 171, 700-3, 708-12).
Mr. Wallach was at the Roberts' job office ("Vecchio's trailer") at least 15 minutes during which time he spoke to his wife on the telephone. He quickly returned to the area of the crane when he heard an explosive sound (Tr. 159-60, 182, 710). During his absence, Mr. Tresslar had driven his crane out of the excavation hole and had set it up on the access road parallel to the wires to start operation, with the cab facing north and the boom facing south (Tr. 153, 182, 214-18, 306-7). Mr. Tresslar said it required about 15 minutes to come out of the hole and set up the crane. He testified that he did so at the direction of Mr. Rodriquez (Tr. 211-218). After the crane was set up on the access road, it was first used, according to Mr. Tresslar, to move a bundle of steel from the hole into the area of the transformer room (marked "BJT" on [*28] the diagram, Tr. 218, 307, 319). Although Mr. Wallach indicated during his testimony that the bundle could have been moved with the crane still in the hole, Mr. Tresslar's recollection was that it was necessary to take the crane out of the hole to move the ("first") bundle (Tr. 700, 319). This was done by swinging the boom south to east (Tr. 265-6). Mr. Tresslar said he was then going to move into the hole a second (the "fatal") bundle of steel which was located four to six feet west of the crane toward the wires (marked C.J.T., Tr. 266). He estimated that the bundle of steel weighed 500-800 pounds and that it was 15-20 feet in length (Tr. 218-223; 320-322). Mr. Tresslar said he expressed concern to Mr. Rodriquez about the proximity of the overhead wires but did proceed with the operation, at the direction of Rodriquez (Tr. 223-26, 241, 308). The boom was extended out 38' at a 70 degree angle ("all the way up," Tr. 226) and swung northwesterly to "almost 90 degrees" to a point marked "FJT" on the diagram (Tr. 267-70). Mr. Tresslar stated that he could not see the end of the jib or the wires and was dependent upon the hand signals of Rodriquez. The bundle of steel was hitched [*29] to the cable, and the crane operator then raised it to a chest high position. Then, according to the crane operator, Mr. Rodriquez took four or five steps while holding and pushing the bundle from the south end in a northwesterly direction toward the wires so as to guide it around the front of the cab of the crane (Tr. 227-9, 240, 266-275, 320-23). At that instant, Mr. Tresslar said he saw fire under Rodriquez's feet and saw him fall back onto a bundle of steel at a point between two man hole covers (marked "EJT" on the diagram, Tr. 229-230; also 275-6). The boom of the crane, according to Mr. Tresslar, had not moved (Tr. 240, 320).
Mr. Vecchio considered Mr. Rodriquez a "good worker." He had been a Soule employee for seven years and had acted as a foreman on other jobs for Soule. He had not been so designated at the Sequoia worksite; another Soule employee, Mr. Everett Younger, was to be designated foreman for Soule in Mr. Wallach's absence (Tr. 151-2; 180-4; 701, 710).
The two eye-witnesses, Dr. Ellis and Security Guard Magloth, testified that they saw smoke or sparks and heard an explosion type of noise and saw a man fall back toward the hospital with a bundle [*30] of steel in his arms. The descriptions given of the accident by Mr. Tresslar, Dr. Ellis, and Mr. Magloth were essentially the same. Their recollections varied as to whether the steel was being held horizontally or vertically (Tr. 229, 299, 343). Mr. Magloth, contrary to the testimony of Mr. Tresslar, thought the crane was moving at the time of the accident (Tr. 327-8; 343-4). Dr. Ellis testified that he and another physician attempted to resuscitate Mr. Rodriquez. Mr. Rodriquez died from elecrocution, between 2:10 and 2:45 P.M. (Tr. 357; SX 12B).
Mr. Wallach said that when he returned from the Roberts' job office, he saw that the crane had been set up on the access road and that Rodriquez was lying on the ground (Tr. 159-60, 165, 710).
Mr. Wallach acknowledged that a crane had set up on the access road on prior occasions, and he recalled one particular instance when steel had been removed from beneath the wires in spite of an objection voiced by Crane Operator Kole of Coast Crane (Tr. 697, 704-707).
Roberts' Superintendent Vecchio said that he observed the crane set up on the access road in the early afternoon of September 20 before the accident (Tr. 71-2). He testified [*31] that he had passed by, but no employees of Roberts had worked in the vicinity on the day of the accident (Tr. 72, 131). He had seen the crane set up in the access area "15 or 20 times" previously, usually facing to the east (Tr. 73). He stated that a fork lift was usually used to remove the materials from under the wires, and he could not recall ever seeing a crane used "directly under the wires" (Tr. 73-5).
Mr. Tresslar said he had been called upon to operate the crane on the access road two or three other times (Tr. 232). He recalled one particular occasion when he refused to operate the crane next to the wires (Tr. 242-3, 277, 315).
Mr. Jerry Kole, one of the partners in Coast Crane, testified that he had operated a lattice crane in the Sequoia construction site and that he had complained two or three occasions (changed to one time, Tr. 423) to Soule Superintendent Wallach that he had been asked to work too close to the wires (Tr. 414-16). Mr. Kole explained that Coast Crane ceased doing business shortly after the accident due to financial and insurance reasons (Tr. 420).
At the time of the hearing, Mr. Tresslar was 24 years of age and had worked for about two [*32] years as a crane operator, an occupation he learned "on-the-job" (Tr. 252-3). He ceased being a crane operator soon after the accident on September 21, 1971. He said he was "shook up" and was apprehensive of having an accident (Tr. 252-3; 286-7; 312). The record indicates that he pleaded nolo contendere to a charge of violating Section 192.3(b) of the California Penal Code (vehicular manslaughter) in connection with the death of Mr. Rodriquez (Prehearing Order Stip. 45).
It was stipulated that at the time of the accident on September 20, 1971, the crane was positioned approximately 25' east of the private hospital entrance road and approximately 172' north of Whipple Avenue (Prehearing Order Stip. 37). The diagram shows that the cab of the crane was approximately 19' from the wires (i.e., measuring to a point on the ground directly under the wires, Tr. 141, 479, SX 3 AB) and 16' from where "burn marks" are indicated on the construction site. PG & E Foreman Bernardo testified that he examined the crane at the accident site around 2:25 P.M. on September 20 after the accident had occurred (Tr. 357). He said measurements relating to the crane and wire were taken at the time [*33] and recorded in the report that he made. The report indicates that there was contact with all three lines at a point 58' from the nearest pole (SX 13 AB).
Mr. Bernardo has been a PG & E employee for 28 years during which period he had training and experience in the electrical field, including investigation of electrocution accidents. In Mr. Bernardo's opinion the crane had come in contact with the wires because a fuse (at least one) had blown at the nearby power station, there was discoloration on the conductor, (i.e., wire burns) and there was an injured party. He said there were burn marks on at least one wire, which he could see with field glasses, but he saw no burn marks on the cable or any other part of the crane (Tr. 368, 381-2, 397, 406). In his opinion, the wires appearing in photographs in evidence show burn marks (SXs 5 AB 4-5, Tr. 379). According to Mr. Bernardo, contact of the cable with one of the overhead wires would have caused an explosion or flash (Tr. 370, 380); also, in his opinion there would be a "relatively high" likelihood of serious injury if a part of the crane were to make contact with high voltage wires while a person in contact with the [*34] crane was on the ground (Tr. 370). Under normal conditions, electricity would arc or "jump" only "maybe an eighth of an inch" (Tr. 394).
Mr. Bernardo said that it is "common knowledge" that 12,000 volts would cause death or serious injury. He stated that he was aware of the fact that there are laws which prohibit positioning of a crane so it is capable of coming within six feet of power lines. He was of the view, based on his experience, that operation of a crane so that its boom or cable could come within six feet of wires does present a serious risk, a risk that is recognized within the construction industry (Tr. 370-72). The reason for the legal prohibition, he said, is that "the operator could have a mental lapse" and permit the crane to swing around and get into the wires (Tr. 409). It was also Mr. Bernardo's opinion, that operating the crane to the east from a position on the access road was hazardous unless there was a lock on the crane to prevent it from swinging around and hitting the wires on the west (Tr. 408-9).
Crane Operator Tresslar and former Coast Crane official Jerold Kole also expressed familiarity with a legal prohibition against operation of a crane within [*35] six feet of high voltage lines (Tr. 256, 416-7).
Compliance Officer Stock, who had worked for a number of years as a construction safety engineer in the Division of Industrial Safety for the State of California before becoming an inspector for the Department of Labor, explained that the reason for the "6-foot rule" involves the human element: experience has taught that a "person forgets that line is there and inadvertently goes beyond the point that they expected" (Tr. 431). He also explained that the wording of the warning notices attached to Mr. Tresslar's crane was required by California Safety Order Section 1768(c), which incorporate a requirement of Section 385(c) of the California Penal Code but also goes beyond it. Each of the signs on the crane read in part as follows (SX 4 AB 7 and 8):
Unlawful to operate this equipment within 6 feet of high-voltage lines.
All equipment shall be so positioned, equipped, or protected so that no part shall be capable of coming within 6 feet of high-voltage lines.
Mr. Stock stated that Safety Order was issued by the Division of Industrial Safety in 1965, and he was the State official who held hearings on it and wrote it. He [*36] agreed that the first sentence of the notice, which is required by the California Penal Code, does not come into play by the positioning of a crane unless it also "operates" within six feet of the high-voltage lines (Tr. 438, 443). The "intent" of the safety order in adding the second sentence is to force persons and equipment "to stay away where you can't get within six feet," he said (Tr. 441). He did not think the notice to be confusing but did agree that it would have been "more clear" if the legislature had agreed to change the law so the first sentence could have been eliminated (Tr. 444).
Mr. Stock, who has had experience as a contractor as well as a safety officer, accompanied Compliance Officer Lawrence to the Sequoia Hospital site on September 21, 1971, the day after the accident, and assisted him in an investigation of the accident. It was Mr. Stock's opinion that positioning of the crane on the access road as it appeared "after the accident . . . approximately 19 feet away from the wires" and operating it from there violated the state safety regulation and involved a hazard that was very likely ("high probability") to cause death or serious injury (Tr. 432). [*37] He conceded that there would not be "any substantial danger" if the boom of the crane were operating only to the east; nevertheless he thought it would be "a hazardous way to work . . . if the boom happens to be swung . . . to the west" (Tr. 452). He said that he recommended that both Roberts and Soule be cited for violating the Act (Tr. 450).
Compliance Officer Lawrence also recommended issuance of citations against both Respondents. He felt the citations against both should allege a "serious" violation because (Tr. 474):
Well, the fact that we had a situation where both parties knew of a high-voltage situation in the area. They both had prior knowledge of the men refusing to operate because of the condition, and the fact that on either time that a man had come in contact with this wire, the type of operation that they were running, they could have seriously hurt someone or death could have been involved.
He recommended that an unadjusted penalty of $1000 be assessed against each Respondent, less credit for "size" -- 10% as to Soule and 5% for Roberts (on the basis that there were 20 or more employees of Roberts at the site and Soule had less than 20, Tr. 481-2); "good faith" [*38] -- 10% as to each (on the basis that neither was entitled to the 20% maximum allowable under administrative guide lines as Respondents were "aware" or had "knowledge" of the situation and had done nothing about it, Tr. 477, 482, 547); and "history" -- 20% (the maximum allowable as there was no record of any violation by either Respondent). n8
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n8 Section 17(j), quoted at page 8, supra, provides that penalties assessed by the Commission are to take into account the "gravity" of the violation, and the employer's "size", "good faith" and "past history" of violations. It was stipulated that Mr. Lawrence's superior, Area Director Pickford, if called, would testify that he approved the recommendations of Mr. Lawrence as to issuance of the citations and assessment of proposed penalties (Tr. 619).
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Mr. Lawrence, who was a contractor before he became a safety officer for the Navy and later for the Department of Labor, was primarily responsible for the Secretary's investigation of the September 20, 1971 accident. [*39] He interviewed both Mr. Vecchio and Mr. Wallach, inspected the power lines and worksite, and saw the crane. He testified that Mr. Vecchio and Mr. Wallach both acknowledged to him that there had been "prior problems" in connection with operating the crane on the access road area (Tr. 471-3, 572-3).
Mr. Lawrence testified that he believed that virtually every state has a law placing a specified limit (6' or 10' or other) on how close a crane may operate to high tension wires (Tr. 535). He also testified that it is a "recognized" risk in the construction trade to operate a crane within the defined limits of high voltage lines (Tr. 549-52). In determining whether a hazardous condition and a violation occurs or not, he indicated that he would take into account the "position" as well as the "operation" of a crane; also, that factors such as the position of the boom, employees, and materials must be considered. He thought it could be a hazard to operate the crane from the access road with the boom facing east because it might swing west into the wires (Tr. 578-9, 591-7, 607-8).
DISCUSSION
The burden of proof is upon the Secretary to establish that a cited employer violated [*40] the Act as alleged in the citation and complaint (Rule 2200.33 of Commission's Rules of Procedure). To establish a violation of Section 5(a)(1) of the Act, there must be proof of the existence of a "recognized hazard . . . likely to cause death or serious physical harm" and the failure on the part of the employer to keep his "employees" free from it.
In the opinion of this judge, the record establishes that operation of the crane while positioned on the access road constituted a "recognized hazard" and that employees of Respondent Soule were exposed to, and were thus affected by, such hazard.
The boom or cable of Mr. Tresslar's crane was brought into contact with at least one of the high tension wires, resulting in the death of Soule Employee Rodriquez. The testimony of Mr. Bernardo, Mr. Tresslar, Mr. Magloth and Dr. Ellis and the documentary evidence of record, particularly the photographs of the wires (SXs 5 AB 4 and 5), compel this conclusion.
The legislature of the State of California has made it a misdemeanor to operate a crane within six feet of a high-voltage overhead conductor (i.e., a wire above the ground carrying over 750 volts, SX 8 AB). The law was in effect when [*41] the accident occurred. In 1965, the State promulgated Section 1767, an administrative regulation in the form of a safety order. It prohibits the movement or erection of a crane near high-voltage lines in a manner that "it is possible" for any part of it to be within 6 feet of such lines -- unless effectively guarded by mechanical barriers, by being removed or by being de-energized (SX 10 AB). California law requires that warning signs be plainly posted on cranes giving notice of the prohibitions against positioning and operating them near high-voltage lines. The crane in use at the jobsite had the signs on it (Tr. 62).
It is clear that the positioning of the crane on the access road as depicted in the diagram and the operation of it from that position, in any direction, was contrary to the California administrative safety order. When the crane was so positioned, the high-tension wires were only 19 feet away to the west from the crane (at a point on the ground directly beneath the wires) and the crane could rotate 360 degrees and make contact with the wires as there was no lock on the crane (Tr. 422). Mr. Bernardo pointed out that due to "mental lapse of individuals" [*42] (Tr. 409) it was hazardous, and a "violation," to operate the crane even to the east, away from the wires, unless there was a method, such as the use of an azimuth lock, to prevent the boom from swinging around to the west in the direction of the wires (Tr. 375, 400-5). Mr. Lawrence testified to the same effect (Tr. 579, 590-97). n9
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n9 Mr. Bernardo and Mr. Lawrence acknowledged that there was no real risk so long as the crane boom was pointing only to the east (Tr. 405, 596-7).
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Most of the states have recognized the danger of operating cranes and other machinery close to high tension wires and have enacted laws requiring that a specified clearance, ranging from 6 feet to 10 feet, be maintained between the machinery and the lines (Tr. 535). The Review Commission has held that it is a recognized hazard and a violation of the general duty clause for an employer to operate a crane even within 10 feet of a power line (Docket No. 9, Dale M. Madden Construction Co., Inc., decided March 9, 1972; appeal pending 9th Cir.). [*43] Witnesses Bernardo, Kole and Lawrence indicated in their testimony that the construction trade recognizes the danger in operating a crane in the vicinity of high-tension wires (Tr. 372, 417, 556). The job superintendents of both Respondents, as well as Mr. Tresslar, were aware of the warning signs on the crane and the dangers involved (Tr. 62, 76, 143, 313).
Of course, there can be no violation of the general duty clause of the Act unless there is an employer who has an "employee" that can be exposed to the risk of a recognized hazard. The general duty clause imposes a duty upon employers subject to the Act only with respect to "his employees." The Secretary did not carry his burden on this element with respect to Respondent Roberts.
The evidence shows that there was no Roberts employee -- i.e., a worker on the payroll of Roberts -- in the area of the crane on September 20, 1971, with the possible exception of Roberts' job superintendent, Charles Vecchio (Tr. 72, 131, 239). Mr. Vecchio testified that he "passed" by the crane some time before the accident the afternoon of September 20, 1971, after the crane had come out of the excavation hole (Tr. 72). But the evidence [*44] does not show that he was sufficiently close to the crane and the wires at a time when he could have been "affected" by the hazard. More important, the case was tried on the theory that the only affected "employee" of Roberts involved was the crane operator. The effort of the Secretary to reframe the pleadings so as to raise an issue as to Mr. Vecchio by a motion to amend, filed after the record was closed and briefs were filed, comes too late. n10
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n10 A recent decision indicates that an amendment is barred by Section 9(c) of the Act in any event as the alleged violation occurred over six months ago (Docket 678, Johnson Brothers Company, approved 9/12/72).
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Thus, the Secretary can only prevail against Respondent Roberts by showing that the crane operator was an "employee" of Roberts as that term is used in the Act. The briefs filed by the Secretary after the trial indicate that he does not press his contention that the crane operator was an "employee" of Respondent Soule. The Secretary states in [*45] his opening brief (p. 2):
[W]hile it is the Secretary's position that Tresslar could be considered an employee within the meaning of Section 3(6), of both Respondents jointly, the question of the crane operator's status is of most importance with respect to Respondent Roberts.
The Secretary cites no legislative history under the Act, and the undersigned is aware of none, which would indicate that a person in Tresslar's position could be considered an "employee" of Roberts. The Secretary points out that in determining who is an employee under the Act that the common law and the technical contractural meanings are not controlling. This is undoubtedly true, but it is also clear from the cases that the Secretary is not free to change the normal business relationship of parties unless Congress has indicated that he may do so. See, for example, United States v. Silk, 331 U.S. 704 (1947) at 714.
The Secretary cites a number of Supreme Court decisions arising under the Social Security Act and legislation in the labor field, relying primarily on NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944). In Hearst, the Supreme Court upheld the Labor Board's view that [*46] newsboys were "employees" and entitled to the protection of the National Labor Relations Act. In approving the Board's interpretation, the Court stated that the term must be considered in the light of the "mischief at which the Act is aimed" as well as the history, context and purposes of the Act, including "the facts involved in the economic relationship" ( Id., pp. 126-9). It is to be noted that the meaning given "employee" in Hearst determined coverage and the extent to which the labor relations legislation was to be extended. The meaning that is given to "employee" here, as it arises under the Occupational Safety and Health Act, does not determine coverage. The crane operator's employment was undoubtedly covered under the Act; the question presented here is simply which party, or parties, may be held to be responsible as Tresslar's "employer" under the Act. In any event, the Hearst case must be read in light of the recent Supreme Court's decision in Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 90 S. Ct. 393, 30 L.Ed. 341 (1971), a case cited by both Respondents. In the Allied Chemical case, decided on December [*47] 8, 1971, the Supreme Court reversed the Labor Board and held that the term "employee" as used in the (amended) National Labor Relations Act must be given its "ordinary meaning", which would not include retired employees as the Labor Board had found. The following language of the Court is helpful here (30 L. Ed. 2d. at 350):
We have repeatedly affirmed that the task of determining the contours of the term "employee" "has been assigned primarily to the agency created by Congress to administer the Act." Labor Board v. Hearst Publications. But we have never immunized Board judgments from judicial review in this respect. "[T]he Board's determination that specified persons are 'employees' under this Act is to be accepted if it has 'warrant in the record' and a reasonable basis in law." Labor Board v. Hearst Publications.
To the contrary, the legislative history of § 2(3) itself indicates that the term "employee" is not to be stretched beyond its plain meaning embracing only those who work for another for hire. In Labor Board v. Hearst Publications, supra, we sustained the Board's finding that newsboys were "employees" rather than independent contractors. We said that [*48] "the broad language of the Act's definitions, which in terms reject conventional limitations on such conceptions as 'employee', . . . leaves no doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications." The term "employee" "must be understood with reference to the purpose of the Act and the facts involved in the economic relationship." 322 US, at 129, 88 L Ed. at 1184. Congress reacted by specifically excluding from the definition of "employee" "any individual having the status of an independent contractor." The House, which proposed the amendment, explained:
"An 'employee', according to all standard dictionaries, according to the law as the courts have stated it, and according to the understanding of almost everyone, . . . means someone who works for another for hire. But in the case of National Labor Relations Board v. Hearst Publications, Inc. . ., the Board . . . held independent merchants who bought newspapers from the publisher and hired people to sell them to be 'employees'. The people the merchants hired to sell the [*49] papers were 'employees' of the merchants, but holding the merchants to be 'employees' of the publisher of the papers was most far reaching. It must be presumed that when Congress passed the Labor Act, it intended words it used to have the meanings that they had when Congress passed the act, not new meanings that, 9 years later, the Labor Board might think up. In the law, there always has been a difference, and a big difference, between 'employees' and 'independent contractors'. 'Employees' work for wages or salaries under direct supervision. . . . It is inconceivable that Congress, when it passed the act, authorized the Board to give to every word in the act whatever meaning it wished. On the contrary, Congress intended then, and it intends now, that the Board give to words not far-fetched meanings but ordinary meanings." n11
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n11 United States v. Silk, supra, also cited by the Secretary, followed Hearst and held coal loaders who provided their own tools (picks and shovels) were "employees" under the Social Security Act. Truck drivers who owned their trucks and hired helpers, however, were held to be independent contractors.
The Fair Labor Standards Act cases cited by the Secretary also involved the issue of coverage. In Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947) it was held that meat boners working in a slaughter house (with their own knives) were covered employees. In Goldberg v. Whitaker House Cooperative, 366 U.S. 28 (1961) it was held that members of a cooperative who knitted, crocheted and embroided goods in their home and received "advance allowances" were covered "employees" of the cooperative. However, in Walling v. Portland Terminal Co., 330 U.S. 148 (1947) it was held that "employee" could not be interpreted so as to include a railroad brakeman trainee -- i.e., "make a person whose work serves only his own interest an employee of another who gives him aid and instruction."
[*50]
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Unquestionably, the new Occupational Safety and Health Act should be given a liberal interpretation so that the purposes of the Act can be carried out. Common law and technical contractural terminology should not be controlling in construing the terms "employer" and "employee". But, as noted above, Crane Operator Tresslar was a covered "employee, whoever his "employer" (or employers) was under the Act. Therefore, the purposes of the Act may be carried out without making him an employee of Roberts, although it may be more financially able to pay a penalty to the Secretary than Coast Crane.
It is clear from the record that, giving the term "employee" its ordinary meaning, Mr. Tresslar remained the employee of Coast Crane and never was the employee of Soule on September 20, 1971. It should be noted that Mr. Tresslar could have become the borrowed employee of Roberts (or Soule) by agreement or by other conduct of the parties, but this record does not warrant such a finding. Mr. Tresslar was engaged in a skilled occupation, distinct from any job found in Roberts' organization; the crane was [*51] an expensive piece of machinery owned by Coast Crane and assigned by it specifically to Mr. Tresslar to maintain and operate; the period of hire was short and the method of payment to Tresslar was in the form of hourly wages paid by Coast Crane -- all of these facts point to the existence of an employer-employee relationship between Coast Crane and Tresslar and an independent contractural relation between Roberts and Coast Crane, including its operator. There is nothing in the record to suggest that the parties involved considered Roberts to be the employer of Tresslar, also a fact to be considered. See, for example, Restatement (Second) of Agency, Section 220 (1958). Control, and specifically the right of control n12 is unquestionably the important consideration, in determining whether an employment relation existed, but Roberts did not have the control necessary to make Tresslar its employee.
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n12 It is the right of control and not the actual exercise of control, that points to the creation of an employment relation See, for example, annotation in 17 A.L.R. 2d 1388, at 1394.
[*52]
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It is, of course, true that as the general contractor Roberts had general authority over the worksite and that Tresslar reported to Roberts' job superintendent when he came on to the site; also, that the latter had the power to remove the crane, along with the operator. But these facts were not sufficient to create and employment relationship between Tresslar and Roberts. It is not, of course, unusual for an independent contractor, or his employee, to leave his own premises and report to the hirer and be subject to removal from a job if it is not being performed as the hirer desires it to be.
It seems clear to this judge that Mr. Tresslar was an employee of Coast Crane, and only of Coast Crane as the term is ordinarily understood. n13 As one of Respondents' briefs points out (Soule's Opening Brief, p. 7) the rule in California is that, absent an agreement to the contrary, if an employer furnishes a machine such as a crane with an operator to another, the operator continues to be the employee of the party furnishing the machine. This is true even though the hirer may direct where the operator [*53] is to go and what work is to be done. In Doty v. Lacy, 249 P. 2d 550 (1952), one of the California cases cited, The District Court of Appeal (Second District) indicated that for the general employment relation existing between the operator and the owner of the machine to be terminated, there must be a complete surrender of all control over the operator. The Court pointed out (at p. 554) that "it is necessary to distinguish between authoritative direction and control and mere suggestion as to details or the necessary cooperation where the work furnished is but a part of a larger operation." The Court then went on to hold in the case, which had been instituted by an injured employee of the hirer, that the trial court had erred in directing a verdict on the theory that the operator had become the hirer's employee.
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n13 Roberts asks in its reply brief if a firm in Coast Crane's position is "relieved of posting and other record requirements of the Act in regard to Tresslar?" As Roberts points out, surely the Secretary would not relieve Coast, as the owner of the crane, of complying with regulations dealing with safety standards.
[*54]
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This case is in accord with decisions in other jurisdictions. See Pichler v. Pacific Mechanical Constructors, 462 P. 2d 960, 963 (Wash. App., 1969); Pennsylvania Smelting & Refining Co. v. Duffin, 70 A. 2d 270 (Pa., 1958). n14
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n14 Section 227 of The Restatement of (Second) of Agency (1958) indicates that an employee may be "directed or permitted" by his employer to perform so that he becomes the employee of another. Explanatory Comment d under this section reads in part:
If, however, the temporary employer exercises such control over the conduct of the employee as would make the employee his servant were it not for his general employment, the employee as to such act becomes a servant of the temporary employer. If the employee does the very act directed by the temporary employer, the latter is responsible for having directed it, and the first employer is responsible as a master if the act is within the scope of his general employment. Again, the record here does not authorize a finding that Roberts was a "temporary employer" who exercised "such control over the conduct" of Tresslar as to make him its employee.
[*55]
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The facts of record, in the opinion of the undersigned, likewise do not provide a basis for finding that an employment relation existed between Respondent Soule and Tresslar. Soule employee did give hand signals and otherwise assisted the crane operator in the unloading and placing of steel, but this did not give Soule the necessary control to make it Tresslar's employer. Soule contends that the giving of signals were not orders but "merely the conveying of information" (Soule Opening Brief, p. 11). The Doty case and other authorities cited by Soule do support this contention. n15 Moreover, the Secretary no longer strongly urges, if at all, that Soule should be found to be Tresslar's employer. But irrespective of any employment relation between Tresslar and Soule, in this judge's view, a violation of Section 5(a)(1) of the Act was established as to Respondent Soule.
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n15 The Supreme Court's decision in The Standard Oil Co. v. Anderson, 212 U.S. 215 (1909) is in accord with the cases cited. In that case it was held that the operator of a winch remained the employee of the owner of the winch even though a gangman of the stevedoring firm (which was also the employer of the plaintiff, an injured longshoreman) gave signals to the winch operator to hoist and lower cargo. Said the Supreme Court at page 226:
"Much stress is laid upon the fact that the winchman obeyed the signals of the gangman, who represented the master's stevedore, in timing the raising and lowering of oil. But when one large general work is undertaken by different persons, doing distinct parts of the same undertaking, there must be cooperation and coordination, or there will be chaos. The giving of the signals under the circumstances of this case was not the giving of orders, but of information, and the obedience to those signals showed cooperation rather than subordination, and is not enough to show that there has been a change of masters. . . ."
[*56]
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The statute requires that every employer subject to the Act provide "each of his employees employment and a place of employment which are free from recognized hazards . . ." As stated above, the positioning and operation of the crane on the access road, even for a period of 15 minutes or so, involved a "recognized hazard". It "affected" Rodriquez and other employees of Soule. If Tresslar had positioned the crane so it would operate within six feet of the power lines at the direction of Respondent Soule, Respondent Soule would be liable for violation of the Act as a temporary "employer" of Tresslar as Soule would have been responsible for directing of "the very Act" (Restatement, supra, Section 227, Explanatory Comment d. ). Finding of a violation on this basis here would require a determination that Rodriquez or other agent of Soule had directed the acts that constituted the violation and that such acts were attributable to Respondent Soule. The Act does not require such proof; it is enough that an employer permitted the exposure of his employees to the recognized hazard. n16 [*57] The record here does warrant a finding that Respondent Soule permitted such exposure and thus violated Section 5(a)(1).
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n16 "Permitted" is not used here as meaning Soule gave express consent to its employees to be exposed to the recognized hazard. A serious violation of the general duty clause only requires that the employer knew or could have known "with the exercise of reasonable diligence" of the recognized hazard. See Docket 85, National Realty and Construction Co., Inc., decided September 6, 1972.
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Soule Superintendent Frank Wallach was aware that it was dangerous for a crane operator to operate within six feet of high-tension wires or to position it so it was capable of doing so. He knew that the crane had operated in the access road before; crane operators had complained of being asked to do so, and he was aware of it. Soule was on notice of the hazard and that close supervision was needed. Mr. Wallach may well not have expected Mr. Tresslar to bring his crane out of the excavation hole and [*58] start operating from the access road during his short absence. But closer supervision was needed to prevent it from occurring. By failing to do so, Respondent Soule violated the general duty clause of the Act.
The violation of the Act by Soule was "serious" as there was a "substantial probability" that serious physical harm could occur and Respondent Soule could have known, with the exercise of reasonable diligence, of the presence of the violation (See 17(k)). The penalty assessed by the Secretary against Soule, however, seems excessive under the statutory criteria for assessing penalties under the Act (Section 17(j)). Soule has no past history of violating the act, its good faith was not seriously impeached, and the violation, while affecting five employees, was one of very brief duration. Thus, a $400 penalty is assessed rather than $600 as proposed by the Secretary. See Docket No. 85, National Realty and Construction Co., Inc., supra. No penalty, of course, may be assessed against Respondent Roberts as no violation by it was established.
Based on the foregoing, and the whole record, the following are entered as:
CONCLUSIONS OF LAW
1. Respondent James E. Roberts [*59] Company and Respondent Soule Steel Company are "employers" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter.
2. It was established that on September 20, 1971 Respondent Soule Steel Company violated Section 5(a)(1) of the Act by permitting approximately five of its employees, including the decedent Rodriquez, to work within the vicinity of a crane while it was positioned so it was capable of operating within six feet of live high-tensions wires, a "recognized hazard."
3. Such violation involved a "substantial probability" that death or serious physical harm could result and was a "serious" violation within the meaning of Section 17(k) of the Act.
4. It was not established that there was any "employee" of Respondent James E. Roberts Company in the vicinity of the crane and high-tension wires at the Sequoia Hospital site on September 20, 1971 and was thus "affected" by any recognized hazard.
ORDER
Based upon the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED:
1. That the Citation issued herein against James E. [*60] Roberts Company on October 6, 1971 and the Notification of Proposed Penalty therefor be, and the same are, VACATED;
2. That the Citation issued on October 6, 1971 against Soule Steel Company be, and the same is, AFFIRMED; and
3. The Notification of Proposed Penalty of $600 proposed for the Citation issued against Soule Steel Company is VACATED and that penalty of $400 is hereby ASSESSED against the Soule Steel Company.