On Petition to Review an Order of the Occupational Safety and Health Review Commission.
Pell and Stevens, Circuit Judges, and J. Sam Perry, Senior District Judge.*fn*
The Secretary of Labor has petitioned this court to review the decision of the Occupational Safety and Health Review Commission (Commission) in the case of Butler Lime & Cement Company (Butler), OSAHRC Docket No. 855 (Sept. 24, 1974).*fn1 In that decision, the Commission, by a 2-1 vote, affirmed an administrative law judge's order that had vacated a citation and proposed penalty issued by the Secretary to Butler. The citation alleged a "serious" violation of section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(2).*fn2
Butler is a Wisconsin corporation that sells and delivers brick, mortar, and other building materials to contractors in the Milwaukee area. To make these deliveries, Butler employs 24 drivers to operate its fleet of 24 vehicles, which includes two brick trucks. The brick trucks are flat-bed vehicles equipped with steel pedestals mounted with mobile crane booms for the loading and unloading of the pallets on which building materials are shipped. These booms can be swung in wide arcs and can be raised nearly vertical from their horizontal rest position. To unload, the driver of such a brick truck raises the boom to the desired angle and then through the motion of a "trolley," a device which moves inside the boom, he places the hauling cable over the center of the material to be lifted. Thus the crane boom enables one man to drive the load from the yard to the customer's premises and there unload it without assistance.
On March 15, 1972, Butler employee Douglas Kapperman was ordered to deliver a load of bagged cement and lime to Commercial Construction Company at a construction site in Milwaukee County. The site, as is usual in the county, contained overhead power wires. Because of grading, the wires in some areas of the site were lower than was typical. The vehicle Kapperman drove was the smaller of the two Butler brick trucks; it was 25 feet long and its crane measured 20 feet. Kapperman had driven Butler cement and dump trucks for 10 years but had operated this brick truck only since December 1971.*fn3 With his truck boom horizontal, Kapperman drove onto the site between two partly-completed apartment buildings, passed under a series of 4800-volt overhead electric lines which ran between the buildings, and stopped near a cement mixer operated by two Commercial Construction Company employees. Kapperman then turned his truck around and parked it directly under the overhead lines. This position placed the boom eight feet from the lines and required that the boom be raised over and above the wires before unloading could take place. It was Butler's policy that a driver should use his own judgment where to place the material delivered if the driver had been given no special instructions as to the delivery spot.
When Lewis, one of the Commercial Construction Company employees, asked Kapperman whether "he wasn't awful close to the wires," Kapperman just looked at him and continued to unlimber his boom. The two Commercial workers immediately went to the other side of one of the unfinished buildings because, "if he touches those wires maybe we could get it, too." When the men returned ten minutes later, Kapperman was lying dead beside his truck. The crane boom either had touched the power lines or had come near them, with the result that the electricity had passed from the lines through the boom and thence had fatally injured Kapperman.
After an inspection of Butler's yard and the job site following the Kapperman incident, the Secretary of Labor issued Butler a citation*fn4 for a serious violation of section 5(a)(2).*fn5 Butler had allegedly failed to comply with safety standard 29 C.F.R. 1910.180(j), which provides in pertinent part:
(j) Operating near electric power lines -
(1) Clearances. Except where the electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers not a part of or an attachment to the crane have been erected to prevent physical contact with the lines, cranes shall be operated proximate to, under, over, by, or near powerlines only in accordance with the following:
(i) For lines rated 50 kv. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet.
(4) Overhead wires. Any overhead wire shall be considered to be an energized line unless and until the person owning such line or the electrical utility authorities ...