RUST ENGINEERING COMPANY; ALLEGHENY INDUSTRIAL ELECTRIC COMPANY
OSHRC Docket Nos. 12200; 12201
Occupational Safety and Health Review Commission
March 28, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Norman H. Winston, Associate Reg. Sol., USDOL
D. T. Hull, Jr., Rust Engineering Co., Allegheny Industrial Electrical Co., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
The decision of Judge James D. Burroughs affirming item 7 of a citation for an alleged non-serious violation of 29 CFR § 1926.451(a)(13) n1 is before us for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. n2 Judge Burroughs held that respondent, Rust Engineering Company, failed to provide proper access to a 15-foot high scaffold, and assessed a $25 penalty for the violation. Respondent filed a petition for discretionary review excepting to numerous findings by the Judge. The petition was granted by Commissioner Moran. After reviewing the entire record, we affirm the Judge's decision except as to the characterization of the violation. We find that it is de minimis.
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n1 The cited standard provides:
§ 1926.451 Scaffolding
(a) General requirements
* * *
(13) An access ladder or equivalent safe access shall be provided.
n2 Three other items were vacated by the Judge and are not before us on review. The Secretary's motion to dismiss the items contested by Allegheny Industrial Electric Co. was granted at the hearing.
[*2]
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Respondent was using a steel scaffold 15 feet high comprised of three 5-foot high sections. During the inspection, an employee was observed descending the scaffold by climbing down the endframes having metal bars or "rungs" spaced between 19 and 21 inches apart. n3 The two top sections had endframe rungs on the left side and the bottom section was turned in reverse with the rungs on the right side. In addition, the boards composing the platform at the top of the scaffold extended 5 to 6 inches over the end of the framework. A citation was issued to respondent alleging in part a failure to provide an access ladder for the scaffold. A notice of contest was timely filed.
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n3 Respondent excepts to the Judge's use of the term "rungs" in describing the metal bars. The terminology used is insignificant. Whether the bars are referred to as "rungs," or "horizontal members" as respondent contends, is unimportant.
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In affirming the alleged [*3] violation, the Judge construed the standard that "an access ladder or equivalent safe access shall be provided" as having two requirements. First, he concluded that "equivalent" means access "virtually or in effect identical to a ladder." Second, he concluded that an equivalent means of access "must also be as safe as that provided by a properly constructed ladder." Since the scaffold was metal, he concluded that the requirements for metal ladders are appropriate for comparison. He examined the standards for metal ladders published by the American National Standards Institute at ANSI A 14.2-1956, sections 3.1.3 and 3.1.5, which require rungs to be spaced on 12-inch centers and to be corrugated, knurled, dimpled, coated with skid-resistant material, or otherwise treated to minimize slipping. He concluded that the endframes deviated from the requirements for metal ladders because they varied in spacing from 19 to 21 inches, and because there was "no evidence to indicate that the rungs were designed to lessen the possibility of skids." He, therefore, concluded that an equivalent safe access was not provided.
On review, respondent maintains that the cited standard intends that a scaffold [*4] access must be "functionally" as safe as that provided by a ladder. Respondent contends, however, that "such does not mean that the dimensions, mechanical configuration, treatment of the surfaces, and other structural features of the endframes must in all respects comply with the ladder standards." Respondent also argues that its employees preferred using the endframes for access. The Secretary agrees with the Judge's use of the portable-metal ladder standards for determining "equivalence," and states that respondent's objection to the Judge's definition of "equivalent" is "mere quibbling over semantics."
The Secretary's interpretation recognizes that an employee climbing the endframes of a scaffold should have the same protection as an employee using a ladder. The Judge was correct in concluding that "equivalent" means "virtually or in effect identical to a ladder." We agree with the Judge, for the reasons he has set forth, that the scaffolding bars did not provide a means of access equivalent to a ladder. The violation, however, was in our opinion de minimis. The Judge's reference to the ladder standards is appropriate inasmuch as it establishes a basis for determining at [*5] least approximate equivalence. The scaffold was only 15 feet high, however, the ANSI ladder standards are concerned with ladders of varying heights. Although the bottom 5 feet of the scaffold had bars on the right side while the upper 10 feet had bars on the left side, there is no evidence that climbing safety was appreciably affected by the need to traverse 2 or 3 feet laterally on a horizontal bar. In addition, the bars were spaced at distances varying between 19 to 21 inches, thus deviating from uniform spacing by no more than 2 inches. n4 We find that although there has been a technical failure to comply with the cited standard, the hazard is trifling and an abatement order is not appropriate under the circumstances of this case. See National Rolling Mills, 4 BNA OSHC 1719, 1976-77 CCH OSHD para. 21,114 (No. 7987, 1976); Van Raalte Co., Inc., 4 BNA OSHC 1151, 1975-76 CCH OSHD para. 20,633 (No. 5007, 1976); Alfred S. Austin Co., 4 BNA OSHC 1166, 1975-76 CCH OSHD para. 20,650 (No. 4809, 1976). n5
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n4 Commission Cleary would take official notice of the obvious difference between climbing a ladder and climbing a scaffold in that a scaffold has by its nature a greater degree of stability. He would conclude that the Commission members are allowed to know what is known by all persons of common intelligence. Franklin R. Lacy, 4 BNA OSHC 1115, 1975-76 CCH OSHD para. 20,617 (No. 3701, 1976) (Cleary, Commissioner, Dissenting), petition for review docketed, No. 76-2201, 9th Cir., June 1, 1976.
n5 In Ringland-Johnson, Inc., 4 BNA OSHC 1343, 1976-77 CCH OSHD para. 20,801 (No. 3028, 1976) we found a non-serious violation under similar circumstances. There, however, some of the rungs were only 6 inches wide and to that extent the case is distinguishable from the present one.
[*6]
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It is ORDERED that the citation for non-serious violation of 29 CFR § 1926.451(a)(13) be affirmed as de minimis and that no penalty be assessed.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Once again my colleagues have strained the ordinary meaning of words to make a regulation mean what they want it to mean as opposed to what it actually says. n6 In this case, they in effect say that, in order to provide a means of safe access which is equivalent to that of a ladder, respondent must provide a ladder. In other words, as they interpret the standard, it means:
"An access ladder or [a ladder] shall be provided."
If that is what the drafters of the regulation intended, they should have simply required all scaffolds to have access ladders. Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 648-649 (5th Cir. 1976).
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n6 See Secretary v. Shea-Ball, OSAHRC Docket No. 4892, October 15, 1976 (holding that a "subway station" and a "tunnel" are the same thing); Secretary v. The Weatherhead Company, OSAHRC Docket No. 8862, June 10, 1976 (holding that the words "provide" and "use" mean the same thing); Secretary v. Van Raalte Company, OSAHRC Docket No. 5007, April 19, 1976 (disregarding the statutory definition of the term "de minimis"); Secretary v. Abbott-Sommer, Inc., OSAHRC Docket No. 9507, February 17, 1976 (affirming a holding that a roof is a floor); Secretary v. D. Federico Company, Incorporated, OSAHRC Docket No. 4395, February 10, 1976 (holding that an excavation is a trench contrary to the Secretary's regulatory definitions); Secretary v. Amoco Oil Company, OSAHRC Docket No. 3769, February 3, 1976 (holding that a petroleum refining plant is an automotive service station), rev'd sub nom. Amoco Oil Company v. OSAHRC, No. 76-1220 (7th Cir., December 27, 1976); Secretary v. Isseks Brothers, Incorporated, OSAHRC Docket No. 6415, January 29, 1976 (holding that the words "and" and "or" mean the same thing).
[*7]
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The majority concludes that "equivalent safe access" requires respondent to conform with the uniform spacing and slip resistant requirements for portable metal ladders as specified in American National Standards Institute (ANSI) standard A14.2-1956. Any reasonable reading of 29 C.F.R. § 1926.451(a)(13), however, would lead to a contrary result. The word "equivalent" modifies the words "safe access," not "ladder," as my colleagues apparently conclude. n7 Therefore, as respondent argues, a scaffold access must be functionally as safe as that provided by a ladder and its endframe rungs need not comply in all respects with the portable metal ladder standard. See Secretary v. Jack Shelton, 12 OSAHRC 197, 204-205 (1974).
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n7 "Equivalent" is defined as "corresponding or virtually identical esp[ecially] in effect or function." Webster's Third New International Dictionary (17th ed. 1971) (emphasis added).
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The evidence that [*8] respondent's endframes were functionally as safe as a ladder is overwhelming. Complainant only presented one witness, his inspector, who testified that there was no "equivalent safe access" due to the failure to comply with ANSI A14.2-1956. In contrast, six of respondent's witnesses, some with over 30 years experience using ladders and scaffolds, testified n8 that it was safer using the endframes of the scaffold than a portable ladder because it was easier to mount the scaffold platform from the endframes and because of the possibility of the ladder being bumped and dislodged during use. Obviously, complainant has clearly failed to establish by a preponderance of the evidence that respondent failed to provide an "equivalent safe access" to an access ladder.
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n8 The testimony of four of these witnesses was received by stipulation.
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Additionally, the majority's untenable determination that respondent's scaffold endframe rungs must adhere to the ANSI requirements incorporated into § 1926.450(a)(4) in order to be an [*9] "equivalent safe access" is inconsistent with the Administrative Procedure Act, the objectives of the Occupational Safety and Health Act, and respondent's right to fair treatment. As I have fully explained in prior cases, incorporation of specified ANSI standards violates due process if it was not reasonably available to the class of persons affected thereby when incorporated under the Act. See Secretary v. Leader Evaporator Co., OSAHRC Docket No. 5225, June 10, 1976 (dissenting opinion); Secretary v. Corbin Lavoy d/b/a Empire Boring Co., OSAHRC Docket No. 782, May 24, 1976 (dissenting opinion); Secretary v. Northern Metal Company, 20 OSAHRC 869, 877 (1975) (concurring and dissenting opinion). This standard was not reasonably available since all employers are required to ascertain its substantive requirements from sources other than the Federal Register. It therefore fails to comply with the "availability" requirement of the Administrative Procedure Act, 5 U.S.C. § 552(a)(1)(E).
Furthermore, my colleagues' total disregard of the lack of proof concerning the ANSI requirement that the rungs of respondents scaffold endframes be designed to lessen the possibility of [*10] slipping subverts this Commission's adjudicatory role. Certainly, there can be no rational dispute that complainant must establish all essential elements of a charge by a preponderance of the evidence. See Olin Construction Company v. OSAHRC, 525 F.2d 464 (2d Cir. 1975); Secretary v. Armor Elevator Company, 5 OSAHRC 260, 262 (1973). According to the majority, one of the essential elements for compliance with § 1926.451(a)(13) is that scaffold endframe rungs be treated to prevent slipping. Yet, they increduously find noncompliance therewith solely on the basis that there was "no evidence to indicate that the rungs were designed to lessen the possibility of skids," untenably reversing the evidentiary burden from complainant to respondent. I submit that this finding blatently exposes my colleagues' lack of impartiality and is totally inconsistent with the adjudicatory role which Congress assigned to this Commission in 29 U.S.C. § 651(b)(3). Frank Irey, Jr., Inc. v OSAHRC, 519 F.2d 1200, 1202 n.3 (3d Cir. 1974); Brennan v. OSAHRC and Sante Fe Trail Transport Company, 505 F.2d 869, 871 (10th Cir. 1974); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 [*11] (4th Cir. 1974); Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278, 279 (9th Cir. 1974).
Apparently, Messrs. Barnako and Cleary have their own doubts about their affirmance of this charge. Otherwise, they would not affirm it as a de minimis violation, which in itself is improper because vacation of a citation is the appropriate action when an alleged violation is "de minimis." Secretary v. Alfred S. Austin Construction Company, OSAHRC Docket No. 4809, April 28, 1976 (dissenting opinion); Secretary v. Van Raalte Company, OSAHRC Docket No. 5007, April 19, 1976 (dissenting opinion).
Since my colleagues rely on the Judge's decision, it is attached hereto as Appendix A in order that the law may be known in this case.
Appendix A
DECISION AND ORDER
George D. Palmer, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant
Daniel T. Hull, Jr., on behalf of respondent
STATEMENT OF CASE
This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter "Act"). Respondent Rust Engineering Company seeks review of items two, four, seven and eight of a non-serious [*12] citation issued to it on January 17, 1975. Review is also sought of penalties proposed for the alleged violations. Respondent Allegheny Industrial Electrical Company, Inc., seeks review of items one and two of a non-serious citation issued to it on January 17, 1975. Review is also sought of the penalty proposed for item one. No penalty was proposed for item two.
The citations and notification of proposed penalty were issued as the result of an inspection conducted on January 16, 1975, of construction operations being conducted at the Union Carbide Plant located at Chickasaw, Alabama. The Rust Engineering Company (hereinafter "Rust") was the prime contractor for the job.
Items two, four, seven and eight of the citation issued to Rust alleged a violation of section 5(a)(2) of the Act by failing to comply with standards promulgated under section 6 of the Act. The standards allegedly violated and the description of the alleged violations as stated in the citation are as follows:
Item 2 - 29 CFR 1926.601(b)(2)(ii)
"Failed to maintain brake lights on Pettibone SN#: 1658331 in operable condition used throughout site."
Item 4 - 29 CFR 1926.550(a)(4)
"Failed to post approved [*13] hand signals for crane at job site (Pettibone SN#: 1658331) used throughout site."
Item 7 - 29 CFR 1926.451(a)(13)
"Failed to provide access ladder to gain access to top and exit from scaffolding throughout job site."
Item 8 - 29 CFR 1926.150(c)(1)(viii)
"Failed to assure periodically inspection and maintenance of fire extinguishers as required by NFPA No. 10A - 1970, through job site."
A penalty of $25 each was proposed for items two, seven and eight. No penalty was proposed for item four.
At the commencement of the hearing, complainant moved to dismiss item eight of the citation issued to Rust. The motion was granted (Tr. 4).
Items one and two of the citation issued to Allegheny Industrial Electrical Company, Inc., (hereinafter "Allegheny") alleged and described violations as follows:
Item 1 - ANSI Z49.1, Safety in Welding and Cutting (as adopted by 29 CFR 1926.350(j))
"Failed to provide protective equipment to prevent flow back or flash back into gas supply system in electric shop."
Item 2 - 29 CFR 1926.150(c)(1)(viii)
"Failed to provide periodically inspection and maintenance on fire extinguishers as required by NFPA No. 10A - 1970 in electrical shop [*14] and storage."
A penalty of $25 was proposed for item one. No penalty was proposed for item two.
At the commencement of the hearing in these cases, complainant moved to dismiss as to items one and two of the citation issued to Allegheny. The motion was granted and no issues were left for determination with respect to Allegheny (Tr. 3-4).
Respondent Rust, by letter dated February 4, 1975 and received by complainant on February 5, 1975, timely advised complainant that it desired to contest items two, four, seven and eight of the citation issued to it and the penalties as proposed. Respondent Allegheny, by letter dated February 4, 1975 and received by complainant on February 5, 1975, timely advised complainant that it desired to contest items one and two of the citation issued to it and the proposed penalty for item one.
A motion filed by respondents to consolidate the cases for hearing was granted on April 7, 1975. The hearing was held on April 29, 1975, in Mobile, Alabama. No additional parties desired to intervene in the proceedings.
JURISDICTION AND ISSUES
Respondent's conceds that at all times material to this proceeding they were engaged in a business affecting commerce [*15] within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein (Pars. I, II, Complaints and Answers).
The following issues are pertinent to a disposition of all matters in dispute:
1. Did respondent Rust violate section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1926.601(b)(2)(ii), 29 CFR 1926.550(a)(4) and 29 CFR 1926.451(a)(13)?
2. What penalties, if any, should be assessed if any violations are determined?
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifially determined in resolving the issues in dispute:
1. Respondent Rust is a corporation having a place of business and doing business at 1130 South 22nd Street, Birmingham, Alabama. It has been, and is, engaged in an engineering and construction business (Par. II, Complaint and Answer).
2. Respondent Allegheny is a corporation having a place of business and doing business at 1130 South 22nd Street, Birmingham, Alabama, where and from which it has been, and is, engaged in an electrical construction business in many states (Par. [*16] II, Complaint and Answer).
3. The complainant, through a duly authorized compliance officer, conducted an inspection of the Union Carbide Plant under construction at Chickasaw, Alabama. Respondent Rust was the prime contractor of the project (Tr. 7).
4. A Pettibone, model 25, Hydraulic Crane (hereinafter "Pettibone") was rented by respondent Rust in January, 1975. On the date of the inspection, the crane was being used to move steel pipe approximately 100 yards from a storage area to the building area (Exs. 1-A, B, E; Tr. 8, 9, 28, 29, 30, 33, 42, 76, 84, 89). It was being operated by an employee of Rust (Tr. 9).
5. The Pettibone is a rubber tire carrier supported by two axles. The tires are inflated and are approximately four to five feet high (Ex 1-A: 25, 42-43, 46). The Pettibone is self propelled. It was travelling at a speed of approximately 4 miles per hour while being utilized on the job site. It has a revolving superstructure (Ex 1-A; Tr. 41-42, 141-142).
6. The Pettibone is designed for highway travel but modifications have to be made to the crane. The crane has to be jacked up and converted from a four wheel drive to a rear wheel drive (Tr. 142-143).
7. [*17] The area in which the Pettibone was operating was totally within the job site and enclosed by a fence. There was no public traffic into the area (Tr. 30, 31). The equipment was not being operated on any public street or highway (Tr. 44).
8. Employees of Rust were on foot in the vicinity of the Pettibone as it moved the steel pipe (Tr. 9).
9. The Pettibone moves forward and backward. The operator was moving the equipment in a backward direction at the time of the inspection (Tr. 53, 54, 139). The operator's cab is the forward part of the equipment (Tr. 53).
10. The Pettibone had no brake lights to indicate when it was stopping (Tr. 10, 12).
11. Whenever the Pettibone was utilized an employee preceded ahead of the load to warn anyone who might accidentally step in its path of travel (Tr. 140).
12. During the inspection, the compliance officer was told by B. H. Matheny, Rust's superintendent, that no hand signals for cranes were posted at the job site (Tr. 11, 48-49). No hand signals were observed posted on the job site (Tr. 12).
13. Charles C. Colespy, respondent's chief engineer and safety engineer, posted hand signals for cranes in August, 1974. The signals were posted [*18] on the inside of the doors in the change shacks used by the iron workers and carpenters (Tr. 93, 96, 97). The hand signals were posted on January 16, 1975 (Tr. 93).
14. It was the duty and responsibility of Charles Colespy to post the hand signals for cranes (Tr. 100-101).
15. Rust was utilizing safeway steel scaffolding on the job site at the time of inspection (Ex., F.G; Tr. 81).
16. An employee of Rust was observed descending a fifteen foot scaffold without the use of a ladder. He was descending by utilizing the end frames of the scaffold (Ex 2; Tr. 12 - 15, 59).
17. The end frames of the scaffold on which the employee was descending had rungs spaced between 19 to 21 inches apart (Ex. M; Tr. 15, 79).
18. The scaffold consisted of three sections that were five feet in height. The top two sections had end frame rungs at the left hand side of the scaffolding. The bottom section was turned in reverse so that the end frame rungs were on the right hand side (Tr. 16, 17, 56).
19. The scaffold boards composing the platform extended five to six inches over the end of the framework (Tr. 14, 21-22, 127).
20. The employee on the scaffold had been inserting wire pins in the [*19] scaffold (Tr. 105). He was not utilizing a ladder (Ex. 2).
21. Prior to the inspection, employees ascended scaffolds by utilizing the end frame rungs of the Safway scaffolds (Tr. 111).
22. Safway makes a ladder that can be attached to its scaffolding (Tr. 68).
23. Safety meetings were held for all crafts on the job by the superintendent of the craft (Ex. J; Tr. 90).
24. In arriving at the proposed penalties in this case, complainant allowed a reduction of 45-percent composed of good faith (20-percent), previous history (20-percent) and size (5-percent). A total reduction of 50-percent was allowed for abatement (Ex. 8; Tr. 24-25).
LAW AND OPINION
Complainant alleges that respondent Rust violated section 5(a)(2) of the Act by failing to comply with three standards promulgated under section 6 of the Act. The alleged violations occurred on January 16, 1975, at the Union Carbide Plant, Chickasaw, Alabama.
I. ALLEGED VIOLATIONS
A. 29 CFR 1926.601(b)(2)(ii)
Section 1926.601(b)(2)(ii) of 29 CFR provides:
"All vehicles, or combination of vehicles, shall have brake lights in operable condition regardless of light conditions."
Complainant alleges that respondent [*20] failed to maintain brake lights on a Pettibone, model 25, Hydraulic Crane which was rubber-tried and self propelled.
Rust was renting and utilizing a Pettibone, model 25, Hydraulic Crane on the job site at the time of inspection. The model 25 Pettibone is rubber-tired and self-propelled. It has a revolving superstructure. The Pettibone had no brake lights. The facts are undisputed. The primary controversary centers on the classification of the model 25 Pettibone as a motor vehicle subject to the standards set forth in Subpart 0 of Part 1926. Respondent submits that the model 25 Pettibone is a crane and that Subpart N of Part 1926, which pertains to cranes, is applicable. Section 1926.550 et seq. has no standard which requires that cranes have brake lights in operable condition. If Subpart N is applicable, respondent would not be in violation of any standard.
The standards do not define what is intended by the term "motor vehicle." Generally speaking, the term "motor vehicle" is generic and in its broadest sense would include all self-propelled land vehicles. The application of such an inclusive definition to the facts of this case would raise a conflict between the [*21] requirements of Subparts N and 0 of Part 1926.
Subpart N includes cranes in the subtitle designation. Section 1926.550(a)(17) states that an "employer shall comply with Power Crane and Shovel Association Mobile Hydraulic Crane Standard No. 2." The provisions of Mobile Hydraulic Crane Standard No. 2 (hereinafter "Standard No. 2") are not incorporated into the provisions of Subpart 0. The compliance officer testified that figure 3 shown on page 33 of Standard No. 2 was a picture of the mobile crane being used by respondent (Tr. 41-42). Thus there is no doubt as to the mobile crane being used by respondent being covered by the provisions of 29 CFR 1926.550(a)(17).
Section 5.09 of Standard No. 2 specifically refers to rubber tire carrier mountings. Two types are covered. These are: (1) truck type mounting, and (2) self-propelled mounting. Section 5.09 of Standard No. 2 defines a self-propelled mounting as follows:
"A rubber-tire carrier supported by two or more axles, upon which is mounted a revolving superstructure with appropriate front end equipment, and which is controlled for travel from the operator's station. It generally has one engine for carrier and superstructure." [*22]
This definition covers the self-propelled crane being used by respondent.
Section 1926.550(b)(2) states that all locomotive cranes, which would include the mobile crane in this case, in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in ANSI B 30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes. A look at the language of section 5.0.2.1.4 of ANSI B30.5-1968 leaves no doubt that the mobile crane used by respondent is included in the standard. Section 5.0.2.1.4 defines a wheel mounted crane as follows:
"A crane consisting of a rotating superstructure with power plant, operating machinery and boom, mounted on a base or platform equipped with axles and rubber-tired wheels for travel. The base is usually propelled by the engine in the superstructure, but it may be equipped with a separate engine controlled from the superstructure. . ."
Section 1926.601 which is entitled "motor vehicle" makes no reference to cranes nor does it incorporate Standard No. 2 or ANSI B30.5-1968 into its provisions. A look at certain provisions of section 1926.601 is convincing that the term "motor vehicles" was [*23] intended to apply to self-propelled vehicles designed for, intended to be used for, or actually used to transport persons and property over roads or highways. Section 1926.601(b)(6) refers to haulage vehicles. Section 1926.601(b)(7) and (8) refer to vehicles where employees are transported. Sections 1926.601(b)(10) and (b)(12) refer to dump trucks and 1926.601(b)(11) refers to haulage bodies. It seems clear that special vehicles, such as mobile hydraulic cranes, were not intended to be covered by 29 CFR 1926.601.
The mobile crane is primarily intended for use at construction sites. There are more efficient and less expensive means of transporting persons and property over public roads or highways. While the mobile crane is capable of moving under its own power from one job to another upon a highway, this factor should not be the determining criteria. Respondent rented the crane and operated it within the confines of the construction site. In the case of In Re Ferro Contracting Co., 380 F.2d. 116, (3rd Cir. 1967) the Court defined a "motor vehicle" within the purview of the Certificate of Ownership Law of New Jersey. The dispute involved construction equipment. n1 The [*24] lower Court concluded that the equipment was properly classified as motor vehicles since it was such that a person or property could be transported upon a highway. The circuit court in reversing the district court concluded: (380 F.2d at 119).
". . . We therefore believe that the definition of 'motor vehicles' was not intended to embrace machinery which normally operates at construction sites even though literally it perhaps can be used to transport persons on a highway."
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n1 The equipment consisted of a Michtgan front end loader, three crawler tractor bulldozers, and a backhoe.
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None of the provisions of Subpart N, which detail specific standards for cranes, require a mobile hydraulic crane to have brake lights. The provisions of 29 CFR 1926.601 are deemed inapplicable. The issue is decided for respondent.
B. ALLEGED VIOLATION OF 29 CFR 1926.550(a)(4)
Section 1926.550(a)(4) of 29 CFR provides:
"Hand signals to crane and derrick operators shall be those prescribed by the applicable ANSI standard for the [*25] type of crane in use. An illustration of the signals shall be posted at the job site."
Complainant contends that the standard was violated by the failure to post an illustration of the signals at the job site.
The testimony of the compliance officer that no hand signals were posted is disputed by Charles C. Colespy, respondent's safety engineer. The compliance officer testified: (Tr. 11-12).
"Q Did you ask Mr. Matheny about hand signals for cranes on the premises?
"A I did.
"Q And what was his response?
"A He said he didn't have any posted.
"Q Did you later have a conversation with him?
"A I did. That afternoon he came to me on a different job on the same industrial area.
"Q You were inspecting somebody else's employer?
"A Different company altogether. And he asked me was that what I was talking about. And I told him yes, it was. He said he had a drawer full of those in his desk drawer, hand signals.
"Q Did you look over the premises?
"A Yes.
"Q Did you see any such document posted anywhere?
"A On my walk around the inspection, no I did not see any."
Colespy testified that the hand signals were posted in August 1974, and that they were still posted on January 16, [*26] 1974 (Tr. 93).
The compliance officer relied on the statement of B. H. Matheny and the fact that he did not observe any hand signals posted on the job site. Colespy testified that the hand signals were posted in the shacks utilized by the carpenters and iron workers. The compliance officer did not testify that he observed the interior of these shacks and did not frontally dispute Colespy's testimony.
Matheny was Rust's superintendent for the job and had overall authority for the project. It is possible he did not know of his own knowledge that the hand signals was assigned to Colespy. The compliance officer concedes that Matheny may have misunderstood the question regarding the posing of the hand signals. He testified: (Tr. 50).
"Q Is there the possibility, from the way you answered the question, that there could have been a misunderstanding by Mr. Matheny as to where the signals were supposed to be posted?
"A Definitely so, because he came to me that afternoon and told me so.
"Q Do you think he misunderstood the question, where the signals for the Pettibone were?
"A Yes."
Colespy further testified that Matheny came to him after the compliance officer left and asked if [*27] the hand signals were posted. Colespy assured him that they were posted (Tr. 97). Two employees, Hiram G. Tate and James A. Palmer, also testified that hand signals were posted on the job (Tr. 105, 136-137).
The conflict in testimony appears to be more superficial than actual. The complainant made no effort to rebut Colespy's testimony that the hand signals were posted in the employee shacks. One can only conclude that the compliance officer had no knowledge to dispute Colespy's testimony. The issue is decided for respondent.
C. 29 CFR 1926.451(a)(13)
Section 1926.451(a)(13) of 29 CFR provides
"An access ladder or equivalent safe access shall be provided."
Complainant alleges that Rust failed to provide an access ladder to employees ascending and descending a scaffold fifteen feet in height.
Rust was utilizing Safway steel scaffolding on the job. Each section is five feet in height. On the day of inspection, an employee was observed descending a fifteen foot scaffold by using the end frames. The end frames had rungs or metal bars spaced between 19 and 21 inches apart. Respondent submits that the rungs of the end frames provide an "equivalent safe access" as permitted [*28] by the standard.
The word equivalent as used in 29 CFR 1926.451(a)(13) is construed to imply a means of access virtually or in effect identical to a ladder. When the words "safe access" are construed with "equivalent" it is clear that the standard intends that the equivalent means of access must also be as safe as that provided by a properly constructed ladder. It is not in the definition of the phrase that one is perplexed -- it is in the application of the phrase to a particular case that difficulty arises. Equivalence is largely a question of fact.
Prior to determining what might be "equivalent", one must ascertain the requirements for ladders. Since the scaffolding was metal, the requirements for metal ladders are more appropriate for application to the facts of this case. Section 1926.450(a)(4), which applies to metal ladders, provides, in part:
". . . Manufactured portable metal ladders provided by the employer shall be in accordance with the provisions of the American National Standards Institute, A 14.2-1956, Safety Code for Portable Metal Ladders."
One must look to ANSI A 14.2-1956 for requirements of metal ladders.
Section 3.1.3 of ANSI A 14.2-1956 provides:
"The [*29] spacing of rungs or steps shall be on 12-inch centers."
Section 3.1.5 of the standard states:
"Rungs and steps shall be corrugated, knurled, dimpled, coated with skid-resistant material, or otherwise treated to minimize the possibility of slipping."
Metal ladders must have rungs that are spaced with a 12-inch center and be designed to lessen the possibility of slipping.
The metal rungs of the end frames varied in spacing from 19 to 21 inches. The photograph introduced as exhibit H shows the distance between the rungs reflected in the photograph to be 20", 19", 21", 20 1/2" and 20" in order of ascending from the ground level. There is also no evidence to indicate that the rungs were designed to lessen the possibilityof skids. The informational booklet on Safway scaffolding which was introduced as exhibit H gives no indication that the metal rungs on the end frames are designed or treated to minimize the possibility of slipping.
The rungs on the end frames were utilized to accomplish the same result as a ladder, namely, to ascend and descend the scaffold. While the end result is the same, this does not constitute "equivalency" as contemplated by the standard. The requirements [*30] that the rungs of metal ladders be on 12-inch centers and that the rungs be designed so as to prevent slipping are designed to provide reasonable safety in ascending and descending metal ladders. The end frames deviate too far from these requirements for metal ladders for them to be construed as an equivalent safe access. The issue is decided for complainant.
II. PENALTY DETERMINATION
The Commission is the final arbiter of penalties in all contested cases. Secretary v. Occupational Safety and Health Review Commission and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Section 17(j) of the Act requires the Commission to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972).
Employees of Rust were ascending and descending a scaffold by climbing the rungs on the end frames. A minimum of use and exposure would have occurred. The evidence is convincing [*31] that respondent believed the end frame rungs were equivalent to a ladder. Its employees testified that they considered the method to be safer than the use of a ladder. A penalty of $25 is assessed.
CONCLUSIONS OF LAW
1. Respondents Rust and Allegheny were at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.
2. The respondents were at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.
3. At the time of an inspection conducted in January, 1975, employees of Rust were operating a model 25 Pettibone Hydraulic Crane. The crane had no brake lights.
4. A mobile hydraulic crane is not covered by the term "motor vehicle" as used in 29 CFR 1926.601. The provisions of 29 CFR 1926.550 apply to mobile cranes. Respondent Rust was not in violation of 29 CFR 1926.601(b)(2)(ii).
5. On the date of inspection, hand signals for cranes were posted at the job site. Respondent Rust was not in violation of 29 CFR 1926.550(a)(4).
6. On the date of inspection, employees of Rust were utilizing [*32] Safway steel scaffolding. They were ascending and descending the scaffold by use of the rungs in the end frames of the scaffold sections. No access ladder was used.
7. The rungs of the end frames did not provide an access equivalent in safety to that provided by a ladder. Respondent was in violation of 29 CFR 1926.451(a)(13).
8. A penalty of $25 is assessed for the violation of 29 CFR 1926.451(a)(13).
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED: (1) Items two, four and eight of the non-serious citation and notification of proposed penalty issued to Rust on January 17, 1975, are vacated; (2) Item seven of the non-serious citation and notification of proposed penalty issued to Rust on January 17, 1975, is affirmed; and (3) Items one and two of the non-serious citation and notification of proposed penalty issued to Allegheny on January 17, 1975, are vacated.
Dated this 10th day of September, 1975.
JAMES D. BURROUGHS, Judge, OSAHRC