SECRETARY OF LABOR,
Complainant,

v.

LISBON CONTRACTORS, INC.,
Respondent.

OSHRC Docket No. 80-0097

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

A citation item alleging a failure to barricade the rotating superstructure of a backhoe in accordance with 29 C.F.R. 1926.550(a)(9) was issued to Lisbon Contractors.  The standard requires that "accessible areas within the swing radius of the rear of the rotating superstructure of a crane . . . shall be barricaded . . . ."[[1]]  Administrative Law Judge William E. Brennan vacated the item on the ground that the employer did not have fair notice that the standard applied.  We affirm the judge's disposition, but for different reasons.

The facts are not in dispute.  Lisbon was using a Caterpillar 235 crawler-type backhoe to dig a trench for a sewer line in Pleasant Gap, Pennsylvania.   The backhoe's rotating superstructure was not guarded or barricaded.  The compliance officer who conducted the inspection testified that he observed the backhoe lifting a steel trench box and lowering it into the open trench.

The Secretary argued before Judge Brennan that the Commission decisions in Gil Haugan, 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD 24,105 (Nos. 76-1512 & 76-1513, 1979), and Tri-City Construction Co., 80 OSAHRC 9/F12, 7 BNA OSHC 2189, 1980 CCH OSHD 24,267 (No. 76-4094, 1980), required Lisbon to barricade the rotating superstructure of its backhoe in accordance with section 1926.550(a)(9).  The Secretary argued that under these cases, the crane barricading standard applies if the machine in question is used to perform lifting functions usually performed by cranes or derricks.  Under this theory, the function of lifting and moving the trench box transformed the backhoe into a "crane" for purposes of the standard.

Lisbon argued that section 1926.550(a)(9) did not apply because its backhoe is not a crane.  Lisbon also argued that even if the standard did apply, it did not have fair notice of this interpretation of the standard at the time of the violation.   At the time of the alleged violation, Commission decisions had held that the crane barricading standard did not apply to backhoes.  See Felton Construction Co., 76 OSAHRC 136/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD 21,258 (No. 6759, 1976); see also Warner Brothers, Inc., 76 OSAHRC 138/D7, 4 BNA OSHC 1841, 1976-77 CCH OSHD 21,257 (No. 8841, 1976).  It was only after the issuance of the citation that Felton was overruled in Gil Haugan.  Tri-City was issued six weeks later.

The judge agreed that Lisbon lacked fair notice that the standard applied and vacated the citation item.  He stated that "there is no conceivable way this [employer] could have anticipated the Commission's change in its precedent or have been on notice of the applicability of the cited standard to its backhoe."  The Secretary's petition for discretionary review was granted.  On review, the Secretary no longer disputes Lisbon's claim that it lacked fair notice of the standard's applicability.  Instead, he argues that the citation should be affirmed so that Lisbon is required in the future to comply with the standard as it was interpreted in Gil Haugan and Tri-City.  Lisbon vigorously argues, however, that the standard does not apply, that Commission precedent has created numerous practical difficulties unforeseen and unintended by the drafters of the crane standard, and that the Commission should re- examine its precedent in light of material not previously considered.  We therefore conclude that disposition of this case on fair notice grounds would not address the central concern of both parties--the applicability of the standard.

The primary question is whether this backhoe is a "crane" within the meaning of section 1926.550.  We turn first to the language of section 1926.550.  That section lacks a scope and application provision stating the machines or operations it governs.  It is, however, entitled "Cranes and Derricks."  The specific provision before us, section 1926.550(a)(9), mentions only "cranes."   Despite the importance of the term, it is not defined anywhere in section 1926.550, and Commission decisions attempting to give it a meaning have been inconsistent and divided.  Felton held that a machine with a backhoe attachment used to move a trench box and lower pipe sections was not a "crane."  Felton was reaffirmed by Warner Brothers, which involved what was said to be a "hybrid" machine.  Gil Haugan later overruled Felton, and was shortly followed by Tri-City.  The latter two cases concerned a modified farm tractor and a backhoe respectively.  Relying on the maxim that regulations adopted under remedial legislation must be liberally construed, Gil Haugan and Tri-City held that section 1926.550 applies to machines used to perform lifting functions usually performed by cranes or derricks, regardless of whether the machines were originally designed for that function.  None of the majority opinions in these cases, however, examined the question of what a "crane" is with the aid of the ANSI standard that section 1926.550 incorporates by reference.  Yet, as Lisbon argues, that ANSI standard sheds much light on the proper construction of section 1926.550.

Section 1926.550 incorporates by reference at several points ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.[[2]]  ANSI B30.5-1968 defines a crawler crane as "[a] crane consisting of a rotating superstructure with power plant, operating machinery, and boom, mounted on a base, equipped with crawler treads for travel."  ANSI B30.5-1968, section 5-0.2.1.1.  Elsewhere in the ANSI standard, a "boom" is defined as a "member hinged to the front of the rotating superstructure with the outer end supported by ropes leading to a gantry or 'A' frame and used for supporting the hoisting tackle."  Section 5-0.2.2.12.   Nothing we have seen indicates that this backhoe has a "boom" within the meaning of the ANSI standard, i.e., a member outfitted with ropes, a gantry or "A-frame," or hoisting tackle.[[3]]

Furthermore, the ANSI standard expressly excludes backhoes.  The scope section of the ANSI standard provides:  "Within the general scope defined in Section I, Volume B30.5 applies to crawler cranes . . . and any variations thereof which retain the same fundamental characteristics."  Section I provides that "[t]his Code does not apply to . . . shovels, dragline excavators, or backhoes." (Emphasis added.)  We therefore conclude that this backhoe is not a "crane" as that term is used in section 1926.550.

We recognize that this decision is inconsistent with Tri-City, which involved equipment and facts nearly identical to those in this case.  There a Caterpillar 235 backhoe was used to lift and lower pipe sections into a trench.  The Commission held that section 1926.550(a)(9) "applies to machines used to perform lifting functions usually performed by cranes or derricks, whether the machines were originally designed for that purpose or not . . . ." 7 BNA OSHC at 2191, 1980 CCH OSHD at pp. 29,548-29,549, quoting Gil Haugan, 7 BNA OSHC at 2007, 1979 CCH OSHD at p. 29,291.  The rationale of Tri-City was that differences in the specific types of machines are irrelevant.  The regulatory scheme of the standards, however, does not support this conclusion. Section 1926.550 is divided into paragraphs entitled "Crawler, locomotive, and truck cranes," "Hammerhead tower cranes," "Overhead and gantry cranes," "Derricks, and "Floating cranes and derricks."  See 29 C.F.R. 1926.550(b)-(f).  Their detailed requirements, and those of the three ANSI standards that they incorporate by reference,[[4]] were tailored instead to the particular configurations and mechanisms of cranes and derricks rather than to the machines' functions.  While we do not rule out the possibility that the Secretary could draft standards governing machines based on their function, he has not done so here.

Gil Haugan and Tri-City invoked the oft-repeated maxim that regulation adopted under remedial legislation must be liberally construed.  Those decisions accorded no importance at all to the words of the standard or whether those words reflect a deliberate choice by its drafters.  We cannot agree with this approach.  The remedial purpose of the Act does not give the Commission license to ignore the standard's plain meaning.  See Symons v. Chysler Corp. Loan Guarantee Board, 670 F.2d 238, 241 (D.C. Cir. 1981). As the Ninth Circuit has aptly stated, "mere citation to OSHA's remedial purpose . . . [cannot] substitute for analysis of the problem at hand."  Marshall v. Anaconda Co., 596 F.2d 370, 377 n.6 (9th Cir. 1979).  Yet, Gil Haugan and Tri-City did not analyze whether these machines are "cranes" under any definition or sense of the word.  Those decisions did not discuss whether the OSHA drafter might have chosen to regulate these machines based on their configuration and operating characteristics rather than their function.  Instead, they relied solely on the maxim of liberal construction and reasoned that a backhoe is a "crane" whenever it lifts objects and presents the hazard addressed by one of the subsections of 1926.550.  The Secretary's standards, which set policy, strike a balance between the protection of employees and the imposition of burdens on employers.  To ignore the words of the standard and the underlying policy choices that they reflect, is to upset that balance and substitute a new one.  That is not the function of an adjudicatory body.  See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469 (1981); United States v. Sisson, 399 U.S. 267, 297-98 (1970).

Nor do we share the assumption of those decisions that their manner of construction will further the Act's remedial purpose.  The safety and health of employees cannot be served if employers that are subject to the Act's penalty provisions are not afforded fair notice of their obligations under the Act.  See Pennsuco Cement & Aggregates, Inc., 80 OSAHRC 47/A2, 8 BNA OSHC 1378, 1381, 1980 CCH OSHD 24,478, p. 29,890 (No. 15462, 1980).  The expectation that such a liberal construction would advance employee safety and health is unrealistic.  As the Fifth Circuit has pointed out, "[t]o strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them."  Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976).  Employers reasonably expect that the words of a standard are a reliable guide to their duties.   A construction of a standard that bears no reasonable relationship to the standard's plain words cannot be expected to guide employers in their conduct.  We therefore overrule Tri-City.[[5]]

Accordingly, the judges decision is affirmed.  The citation item alleging non-compliance with section 1926.550(a)(9) is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  MAY 31 1984


CLEARY, Commissioner, concurring in part and dissenting in part:

This majority decision rejects long-standing precedent and eliminates the sole means of protection for workers from the rotating superstructure of machines used as cranes.  Ironically, the majority need not have gone this far.  At the time of the violation, Commission case law had held that machines such as the one involved here were not subject to the crane standard.  The administrative law judge therefore held that Lisbon lacked fair notice of the standard's applicability.  I agree.  Due process of law requires that an employer must have fair notice of what is required by a standard.  See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-37 (6th Cir. 1978).  Yet, the majority sidesteps this aspect of the case in order to write new law.  I therefore must dissent.

This case presents the issue of what standard to apply where an employer uses a multi-purpose piece of equipment to perform functions usually performed by more specialized machinery.  Here, a Caterpillar 235 backhoe being used in a trenching operation was also used to lift a trench box and lower it into a trench.  In the course of this operation the machine's superstructure rotated and could have struck or crushed nearby employees.  The compliance officer testified without rebuttal that an employee walked only three to six feet away from the rotating superstructure.  It is clear from the record that this machine had the same sort of rotating superstructure that any crane has and was being used as a crane.  It posed the same grave danger to employees that any crane's rotating superstructure poses and presented the precise danger that the barricading provision of the crane standard was intended to eliminate.

The majority arrives at its contrary interpretation of section 1926.550(a)(9) by way of an analysis not of the OSHA standard but of an ANSI standard that is cross-referenced in other provisions of section 1926.550.  In finding that this machine is not a "crane" under section 1926.550(a)(9) the majority relies heavily an the scope section in ANSI B30.5-1968, which excludes "backhoes" from the ANSI standard's coverage.  Yet, that particular provision of the ANSI standard is nowhere cross-referenced in section 1926.550.  The majority also attempts to derive support for its position from the definition of "crane" in 29 C.F.R. Part 1910 and ANSI B30.5-1968.  Here again there is no evidence that the Secretary intended the definition to control the scope and application of section 1926.550.  The three subsections of section 1926.550 that cross-reference ANSI B30.5-1968 do not purport to define and indeed say nothing about the scope of section 1926.550(a)(9).  Those subsections refer to the ANSI standard for entirely different purposes.  That much is clear from footnote 2 of the majority opinion.  In any event, the majority's reasoning is not sufficiently persuasive to overrule Commission precedent.

The majority finds "plain meaning" in bits and pieces of evidence that prove, according to them, that the crane standard should be given a semantically literal reading.  This kind of reasoning repudiates not only the specific remedial purpose of this Act, but also the general principle of liberal construction of remedial legislation.  As the Supreme Court once observed, just as courts should not go too far in expansive readings of remedial legislation, there is "an obvious corollary to that principle, that we must take care not to narrow the coverage of a statute short of the point where Congress indicated it should extend."  United States v. An Article of Drug, 394 U.S. 784, 801 (1969) (rejecting a "strict medical definition" of the term "drug" and "device" where a broader interpretation would produce greater benefit to the public under the Federal Food, Drug, and Cosmetic Act).

The plain fact remains that the rotating superstructure of this machine was configured like that of a crane, performed the work of a crane, and posed the identical hazard to nearby workers.  The unfortunate consequence of the majority opinion is that employers are permitted to avoid the burden of complying with the crane barricading requirement whenever they use a backhoe as a crane. This result was squarely rejected in Gil Haugan, where the Commission stated:  "We cannot subscribe to an interpretation of the standards that would place less stringent requirements upon equipment that is potentially as hazardous as the equipment clearly governed by the standard, when both pieces of equipment perform the same function."  7 BNA OSHC at 2007, 1979 CCH OSHD 24,105, p. 29,291.  That decision struck the proper balance of worker protection and should control.


The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).




FOOTNOTES:

[[1]] Section 1926.550(a)(9) provides:

1926.550 Cranes and derricks.

(a) General requirements . . . .
* * *
(9) Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

[[2]] See 1926.550(a)(4)("Hand signals to crane and derrick operators shall be those prescribed by the applicable ANSI standard . . . . "); 1926.550(a)(7) (vi) ("Wire rope safety factors shall be in accordance with [ANSI B30.5-1968]"); 1926.550(a)(13)(ii) ("Guardrails, handholds, and steps shall be provided on cranes . . . conforming to [ANSI B30.5-1968]"); and 1926.550(b)(2) ("All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for . . . operation as prescribed in the ANSI B30.5-1968 . . . . ").

[[3]] Reliance upon the definitions in the ANSI standards is also appropriate because the crawler crane definition in the ANSI standard is identical to the OSHA definition in the general industry standard, 29 C.F.R. 1910.180(a)(1).  Although the OSHA definition applies only to section 1910.180, no party has argued that the definitions in Part 1910 address equipment different from that regulated under section 1926.550.  Indeed, 1910.180 was derived from the ANSI standard referenced in 1926.550(b)(2). See 1910.189 (listing sources of standards).

Moreover, one of the standards in Subpart O ( 1926.600-606), which applies to "Motor Vehicles, Mechanized Equipment, and Marine Operations," shows that when the Secretary wishes to apply a crane standard to a non-crane, he has done so expressly. Section 1926.600(a)(6) states that "[a]ll equipment covered by this subpart shall comply with the requirements of [1926].550(a)(15) when working or being moved in the vicinity of power lines or energized transmitters."  That the Secretary drafted such a special provision strongly suggests that we should not create one by construction.

[[4]] ANSI B30.6-1969, Safety Code for Derricks; ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes; ANSI B30.2.0-1967, Safety Code for Overhead and Gantry Cranes.

[[5]] We do not at this time overrule Gil Haugan.  Although Tri-City involved equipment identical to that in use here, Gil Haugan involved a very different machine.  In Gil Haugan, workers were using a shop-modified farm tractor to lift bar joists. Considering its dissimilarity to the machine here, we have no occasion to decide whether the equipment used in Gil Haugan was a crane under section 1926.550.