BECHTEL POWER CORPORATION,
OSHRC Docket No. 80-4764
Before: BUCKLEY, Chairman; RADER and WALL, 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).
The Secretary of Labor issued a citation to Bechtel Power Corporation ("Bechtel") alleging that Bechtel violated an OSHA safety standard requiring that the rotating superstructures of cranes be barricaded. Administrative Law Judge Ramon M. Child affirmed the citation and assessed a penalty of $810. We conclude that Bechtel was in compliance with the cited standard and vacate the citation.
The alleged violation occurred at a construction site in Colstrip, Montana, where Bechtel was erecting a coal-fired power plant. Bechtel was using five cranes in the construction work, including a Manitowoc 4000 crawler crane. Each crane has a two-member crew: an operator and an oiler. The operator sits in the upper part of the crane, called the crane house or superstructure. The lower part of the crane, which includes the crawler treads, is called the car body. The superstructure can rotate while the car body remains stationary. In accordance with Bechtel's policy, rope and flag barricades were erected around the entire perimeter of each crane. The citation was issued following an OSHA investigation of a fatality that occurred when the oiler of the Manitowoc 4000, Jeff Brown, was killed when he was caught between the tracks and rotating superstructure of the crane.
An oiler is assigned to each crane to assist the operator and to perform functions essential to the crane's operation. The oiler is responsible for lubricating the crane and its moving parts,[] assisting the operator in determining when the crane's boom is clear so that loads can be moved, and keeping the crane clean. He also erects the rope and flag barricade around the crane. When the crane is used with the boom nearly horizontal, the oiler watches the tracks and signals the operator if the tracks begin to lift off the ground, indicating that the crane is starting to tip. The oiler also spends some of his time working with the operator in the cab to gain the requisite experience to become a crane operator. The oilers must have access to the cranes to perform their work and must work in close coordination with the crane operators. For this reason, Bechtel permitted its oilers to remain in the barricaded area while the crane was in operation.
The citation alleges that Bechtel violated 29 C.F.R. § 1926.550(a)(9). This standard provides:
§ 1926.550 Cranes and derricks.
(a) General Requirements.
* * *
(9) Accessible areas within the swing radius of the area of 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.
The Commission has held that section 1926.550(a)(9) requires the erection of a physical barricade around the swing radius of a crane's rotating superstructure. Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD ¶ 21,269 (No. 5692, 1976), aff'd, 598 F.2d 1031 (6th Cir. 1979). The Secretary concedes that the rope and flag barricade Bechtel used is the type of barricade the standard requires but argues that Bechtel nevertheless violated the standard by permitting the oiler inside the barricaded area while the crane was in operation. We disagree.
The standard was not intended to require that all employees be physically restrained from the area around the crane. The Secretary acknowledges this, conceding that both the oiler and the crane operator must be allowed to pass through the barricade. The purpose of the barricade required by the standard is to warn employees that the barricaded area is dangerous and to guide and direct them away from the crane superstructure. See 29 C.F.R. §§ 1926.202 and 1926.203 and American National Standards Institute D 6.1- 1971, Section 6 C-1, Manual on Uniform Traffic Control Devices for Streets and Highways (barricades are to warn and guide away from hazards rather than to absolutely prohibit entry). Employees who have no reason to be in the area are thus deterred by the barricade from entering, and the oiler, who must, enter the area, is on notice to be alert to the hazard of the crane's rotating superstructure.
Since the Secretary has conceded that the barricade complied with the standard and that the oiler and operator may work on the inside of the barricade, his argument reduces to the assertion that the standard required Bechtel to instruct the oiler to stay outside the barricade at certain specified times, and that the instructions he would have Bechtel give would provide more protection to the oilers than the instructions Bechtel actually gave.
However, the standard that Bechtel was charged with violating, 29 C.F.R. § 1926.550(a)(9), does not contain any requirement for training or instructing employees. There is a specific construction industry standard requiring employers to instruct their employees in the recognition and avoidance of unsafe conditions, 29 C.F.R. § 1926.21(b)(2).[] If Bechtel's instructions to its oilers were inadequate, the Secretary should have cited Bechtel for a violation of section 1926.21(b)(2) rather than attempt to read into section 1926.550(a)(9) an instruction requirement that the standard clearly does not contain.[] The standard can be altered to include such a requirement only through the Secretary's rulemaking authority, not by constructing the standard to mean what it does not say. See, e.g., Lloyd C. Lochrem, Inc. v. OSHRC, 609 F.2d 940, 944 (9th Cir. 1979) (regulations must be applied as written so that employers need not guess at the Secretary's intended interpretation); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157 (3rd Cir. 1978) (standards must be construed to require only what the plain and natural meaning expresses). See also Marshall v. Anaconda Co., 596 F.2d 370, 376 n.6 (9th Cir. 1979) (Secretary has the responsibility to promulgate clear unambiguous standards; reviewing authorities are "bound to construe regulations, not create them") (emphasis in the original).
Even if Bechtel had been cited for violating section 1926.21(b)(2), we believe the record in this case indicates that Bechtel had complied with that standard. Bechtel instructed its oilers about the hazard presented by the rotating superstructure and told the oilers to remain out of the area in the rear of the crane between the house and the car body. This subject was discussed at safety meetings, which were held every Monday morning. Signs on the Manitowoc 4000 also warned of the danger presented by the moving superstructure.
Prior to the accident, Brown had been informed of Bechtel's rules. He had attended two weekly safety meetings on the Colstrip project at which the hazard presented by the rotating superstructure was discussed. He was also given specific instructions about the hazards associated with the crane by the operator of the Manitowoc 4000. Bechtel's supervisors on the Colstrip project testified that they had neither observed, nor had reported to them, any instances in which any oiler worked where the oiler could be crushed by the crane's superstructure.[] Bechtel's equipment superintendent stated that any oiler observed working in such a manner would have been dismissed. The Secretary's expert witness, Rodney Laster, described Bechtel's safety program as being "among if not the leader in the industry."
The Secretary failed to prove any defect in the instructions given by Bechtel. Cf. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973) (the Secretary must prove that the employer's safety program was lacking and that specific alternative measures would be demonstrably safer). The instructions Bechtel gave its oilers specifically directed their attention to the hazard of being within the crane's rear swing radius. The oiler was specifically instructed to remain out of the area within the rear swing radius of the crane, and Bechtel had no reason to believe he would not follow those instructions. That one of Bechtel's oilers did not follow the instructions does not prove they were ineffective. Employees will sometimes circumvent the best safety program, and even the Secretary's expert witness agreed that Bechtel was a leader in its industry in safety.[]
In summary, Bechtel erected a proper barricade around its cranes as required by section 1926.550(a)(9). The standard does not require Bechtel to prohibit the oiler's presence inside the barricaded area while the crane is "in operation" or give the instructions suggested by the Secretary. Accordingly, the citation for violation of 29 C.F.R. § 1926.550(a)(9) is vacated.
FOR THE COMMISSION
RAY H. DARLING, JR.
DATED: OCT 2, 1985
[] According to the record, various parts of the crane require lubrication as frequently as every four hours, and much of the lubrication must be done while the crane is in an operating mode.
[] Section 1926.21(b)(2) provides:
(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.
[] At the hearing, the Secretary's counsel also relied upon § 5-2.34 of ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes, to support his position that the oilers should not be allowed inside the barricade while the crane is in operation. The Secretary's counsel correctly noted that the ANSI Code was incorporated by reference at 29 C.F.R. § 1926.550(b)(2) as an occupational safety and health standard. However, the Secretary neither moved to amend to § 1926.550(b)(2) nor was the issue of Bechtel's violation of ANSI B30.5-1968 tried by the express or implied consent of the parties.
[] On the day before the fatal accident, another Bechtel employee, Ronald Ebert, observed Brown in the danger zone at the rear of the crane and told Brown to leave the area. However, Ebert testified that he did not report this incident to a supervisor and Bechtel was not aware of' it. We believe Ebert's testimony that Brown left the area immediately without question is significant and reflects that Brown knew he was not supposed to be there.
[] We do not agree that the Secretary's proposed instructions would be
preferable to Bechtel's. Under the Secretary's instructions, the oiler would be permitted
in the barricaded area only when the crane is not "in operation." However, the
Secretary does not elaborate on what he means by "in operation," and the record
indicates that the term is essentially meaningless in the context of the oiler's duties.
The Secretary's expert witness, Laster, testified that it is common industry practice for
the oiler to remain inside the barricade when the crane is "dogged off," i.e.,
when the motor is running but the master clutch is disengaged so that the crane cannot
swing. However, Laster also agreed that the operator must sometimes engage the master
clutch and move the machine to make certain lubrication points accessible to the oiler.
Bechtel's equipment superintendent, James Neta, stated that there were three situations in
which the oiler must lubricate a Manitowoc 4000 while the crane is operating: (1) the
operator must swing the crane slowly while the oiler sprays the swing gear; (2) the
operator must boom up and down while the oiler sprays the boom hoist gear; and (3) the
operator must swing the crane body to allow the oiler access to the house roller under the
crane cab body. Laster referred to Neta's testimony in stating that there are times
"when the machine must be moved a certain amount to get to the proper lubrication
points." Thus, according to the testimony of the Secretary's own expert, the oiler
cannot always be excluded from the barricaded area while the crane is "in