SECRETARY OF LABOR,
Complainant,

v.

A.H. BECK FOUNDATION COMPANY, INC.,
Respondent.

OSHRC Docket No. 83-0928

DECISION

Before:  BUCKLEY, Chairman, and WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), 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 ("OSHA").  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).

OSHA issued a citation alleging that A.H. Beck Foundation Company violated the crane safety standard at 29 C.F.R. 1926.550(a)(9).   The standard requires that "[a]cessible areas within the swing radius of the rear of the rotating superstructure of the crane . . . shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane."  There is no dispute that the swing radius of a machine operated by Beck was unguarded.  Beck argues, however, that the standard does not apply because the machine is not a crane.

I.

Beck specializes in the drilling of piers for the foundations of large buildings.  On August 18, 1983, it was operating at a construction site in San Antonio, Texas, when a compliance officer ("CO") of the Occupational Safety and Health Administration inspected the worksite.  The CO observed a machine owned and operated by Beck.  The machine had a cab mounted on crawler tracks, with a boom attached to the front of the cab.  It was a Northwest Model 41, manufactured by the Northwest Engineering Company of Green Bay, Wisconsin.   The basic model can be used with any of several different attachments as a crane, a dragline, a shovel, or a backhoe.  The CO saw the machine lifting reinforcing rods ("rebars") and placing them into the pier holes before the concrete was poured.  He testified that the machine also was used to lift steel casing or linings into the holes.  The CO thought that the machine was a crane.  Although the machine had an attachment for drilling, the CO stated that the basic structure of the machine was that of a crawler crane.

Beck's president testified that the machine was not a crane but a foundation drilling rig.  He had originally purchased the Northwest Model 41 with dragline attachments and had had the manufacturer make several modifications to permit the machine to operate as a drilling rig.  The modifications that were made to the machine diminished its ability to do precision lifting or lowering, so that it cannot set a load down gently.  Mr. Beck testified that the boom on the machine is not the "basic" boom, but the boom designed for dragline work.  Mr. Beck further testified that he himself had designed the drilling table for the machine, had bought most of the components for the drilling attachment, and had built parts of it himself.

Administrative Law Judge Dee C. Blythe held that the machine was a "crane."  He concluded that under the Commission precedent at the time, the determining factor in whether the standard applies is the use of the machine.  Because Beck's machine was used to lift rebars and casings and to lower them into the pier holes, the judge concluded that it was a crane within the meaning of the standard.  He also noted that the machine had the configuration of a crawler crane, with a boom, a cab, and tracks.

On review, Beck asks us to reverse the judge's decision because the machine's primary function was drilling pier holes, and any lifting that it did was merely incidental to that function.  Beck relies on the view of Commissioner Barnako in Concrete Construction Co., 80 OSAHRC 7/E4, 9 BNA OSHC 1278, 1280 n.4, 1981 CCH OSHD 25,156, p. 31,054 n.4 (No. 77-2480, 1981), that a machine is not a crane if its primary use is not as a lifting device.

The Secretary argues that the "primary function" test urged by Beck is inappropriate.  The test should not be whether lifting is "primary" or "incidental" because one machine might be covered by the standard while an identical machine doing a different job would not be.  The Secretary argues that this result is anomalous, since both machines present the same hazard.  The Secretary argues also that the lifting Beck's machine performed was not incidental to the actual drilling operation but was a separate lifting operation performed after the hole had been drilled.  The Secretary also asserts that, despite its modification for use in drilling, Beck's machine retained the fundamental characteristics of a crane.  The Secretary argues that a machine should not be considered outside the coverage of the standard simply because it is rigged to do things besides lift, such as drill.

II.

After Judge Blythe's decision was issued, we re-examined the test for determining what a "crane" is within the meaning of section 1926.550.  In Lisbon Contractors, Inc., 84 OSAHRC 19/A2, 11 BNA OSHC 1971, 1984-85 CCH OSHD 26,924 (No. 80-97, 1984), we observed that the crucial term "crane" is not defined anywhere in section 1926.550.  To shed light on the proper construction of section 1926.550, we looked to American National Standards Institute (ANSI) B30.5-1968, Crawler, Locomotive and Truck Cranes, which section 1926.550 four times incorporates by reference.  We concluded from the ANSI standard that a machine is not a crane just because it is sometimes used to lift things.  In concluding that a machine must have the configuration and characteristics of a crane, as well as be used to perform the functions of a crane, we relied heavily on the provisions of ANSI B30.5-1968.  We do so again.
Section I of the introduction to ANSI B30.5-1968 provides:

This Code applies to the construction, installation, inspection, maintenance, and operation of jacks; power-operated cranes; crane runways; power-operated and manually operated derricks and hoists; power-operated overhead hoists and their runways; and slings.

This Code does not apply to any crane, derrick, or hoist having a maximum rated capacity of one ton or less, or to railway or automobile wrecking cranes, skip hoists, hoist-like units used for horizontal pulling only, mine hoists, conveyors, or to shovels, dragline excavators of back hoes, or to equipment within the scope of USA Standards Committee A92 Mobile Scaffords, Towers, and Platforms.  Within the above limitations this Code also shall be applied to cranes, derricks, and hoists used on construction work.  [Emphasis added.]

Thus, if Beck's machine were still a dragline, it would not be a "crane" within the purview of the standard.  Because Beck's machine had been extensively modified, however, we must determine whether a preponderance of the evidence shows that these modifications converted it into a crane.  If the preponderance of the evidence does not so show, then the citation must be vacated, for the burden of proving the applicability of a standard is on the Secretary.  See Howard Barthelmass Painting Co., 81 OSAHRC 84/E1, 9 BNA OSHC 2160, 2162, 1981 CCH OSHD 25,636, pp. 31,978-79 (No. 78-5450, 1981).  For the following reasons, we are not convinced that Beck's machine is a crane.

Section 5-0.2.1.1 of the ANSI standard defines a crawler crane as "[a] crane consisting of a rotating superstructure with power plant, operating machinery, and boom, [and] mounted on a base. . . . its function is to hoist and swing loads at various radii."  Beck's machine clearly meets two of these criteria.  It has a rotating superstructure with a power plant and is mounted on a base.  It also has operating machinery but the record does not show that Beck's machine used or was modified to use operating machinery that cranes are typically equipped with--brakes, load or hoist blocks, hooks, slings, shackles, etc.  See sections 5-0.2.2.25 and 5-1.1.1.b.5 of ANSI B30.5-1968.  On the contrary, the record shows only that Beck's machine had been modified to use, and did use, a drilling rig as its operating machinery.  Beck's other modifications merely facilitated the use of that rig.

The Secretary relies heavily on the fact that Beck's machine has the configuration of a crane because it has a boom.  He points to Lisbon Contractors, where the absence of a boom was one factor in our determination that the machine cited was not a crane.  The Northwest Model 41 is a multi-purpose power plant that is adaptable for use as a crane or for use as machines that are specifically excluded from ANSI B30.5-1968.  It is therefore not surprising that Beck's machine has several of the features of a crane, such as a boom.  But while the absence of a boom is dispositive in determining that a machine is not a crane, the presence of a boom does not, by itself, establish that a machine is a crane.  Some machines explicitly excluded from coverage have booms, for example, draglines.  Indeed, Beck's machine still has a dragline boom.  Nor does the Secretary's argument find support in the language of section 5.0-1 of the ANSI standard, which provides that the standard applies to crawler cranes "and any variations thereof which retain the same fundamental characteristics."  As we understand the word "retain," it means that a machine that starts as a crane and is modified, but keeps the basic characteristics of a crane, remains covered by the standard.  Since Beck's machine started out not as a crane but as a dragline, however, it could not "retain" the characteristics of a crane.

The Secretary argues that the use of the machine for lifting brings it within the purview of the standard, emphasizing that the lifting done by Beck's machine was performed separately, after the drilling of the hole had been completed.[[1]]  The Secretary's reliance on these facts is misplaced, however, since other machinery that is specifically excluded from the coverage of the ANSI standard performs a lifting function.  See ANSI B30.5-1968, Introduction, Section 1, quoted above.  As we held in Lisbon, the use of a machine for lifting does not make it a "crane" if it does not have configuration of a crane.

The Secretary has argued that we should focus on the hazard posed by a machine rather than operations it is rigged to perform.  The Secretary's argument would be more persuasive if the ANSI standard, which is incorporated by reference into the OSHA standard, did not explicitly exclude draglines, backhoes, and power shovels, which all create the same hazard of swinging superstructure as cranes.   The creation of a similar hazard therefore does not determine whether the standard applies.

The Secretary's brief states in a lengthy footnote that he "does not agree that Lisbon Contractors was correctly decided."  In implicitly inviting us to re-examine that decision, the Secretary argues in part that "the Commission need not guess at OSHA's intent and underlying policy decisions [in section 1926.550] since the Secretary has repeatedly stated what that intent is."

The Secretary's arguments against Lisbon, however, ignore the only reliable evidence of what the drafters of the standard intended, and fail to present any countervailing contemporaneous interpretation.  The Secretary relies solely on legal arguments urged by the Solicitor of Labor in this and prior briefs.  See Investment Company Institute v. Camp, 401 U.S. 617, 626-628 (1971) (counsel's efforts in litigation are "hardly tantamount to an administrative interpretation" of a statute); New England Telephone & Telegraph Co. v. Public Utilities Commission, 742 F.2d 1, 11 (1st Cir. 1984)("[The FCC's]) views here do not reflect agency policy reached after debate among staff or commissioners.   Rather, as far as we can tell, they simply represent the General Counsel's interpretation of the statute; they are contained only in his brief.")[[2]]

Furthermore, the interpretation of the standard advanced in the brief on behalf of the Secretary fails to provide employers with fair notice of their obligations under the standard.  We may not construe a standard in a way that denies employers fair notice.  See Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 649 ( 5th Cir. 1976).

This case was tried before Lisbon Contractors was issued.  When there is an intervening change in precedent, we normally afford the losing party the opportunity for a remand.  In this case, however, the Secretary extensively argued the application of Lisbon in his brief but did not seek a remand to present additional evidence.  We therefore see no need to delay a final disposition of this case.

Accordingly, item 1 of citation 1 is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JAN 20 1987


SECRETARY OF LABOR,
Complainant,

v.

A. H. BECK FOUNDATION CO., INC.,
Respondent.

OSHRC DOCKET NO. 83-0928

DECISION AND ORDER

Appearances:

Sandra D. White, Esq., of Dallas, Texas,
for the Complainant.

William W. Sommers, Esq., of San Antonio,
Texas, for the Respondent.

PROCEDURAL HISTORY

BLYTHE, Judge:

Respondent, A. H. Beck Foundation Co., Inc., is charged with a serious violation of 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act") and the safety standard at 29 CFR 1926.550(a)(9) for failure to barricade accessible areas within the swing radius of the counter-weight of a crawler crane with drilling attachment.  A single citation was issued to respondent August 29, 1983, as the result of an inspection conducted August 18-19, 1983, by a safety compliance officer of the Occupational Safety and Health Administration ("OSHA") of a workplace at Travis and St. Mary Streets in San Antonio, Texas, where respondent was drilling piers to support two buildings to be constructed there.  Respondent timely filed notice of contest September 9, 1983, thus initiating this proceeding before the Occupational Safety and Health Review Commission ("the Commission") under 10(c) of the Act.  Thereafter the Secretary of Labor ("the Secretary") filed a formal complaint, and respondent filed an answer thereto.  Respondent's answer denied all allegations of the complaint except Paragraph I, which asserts the jurisdiction of the Commission over the proceeding, and that part of Paragraph II which states the location and type of respondent's business.  It pleaded affirmatively that its safety standards are in conformity with those of its industry and are in substantial compliance with the Act; and that the cited standard is unenforceably vague and does not apprise it of the action, if any, it must take to comply therewith.  However, the central issue, as litigated at the hearing and argued in the posthearing briefs, is whether the machine in question is a "crane" subject to the barricading requirements of 1926.550(a)(9).  The matter came on regularly for hearing February 24, 1984, in San Antonio.  Both parties have filed posthearing briefs, and respondent submitted proposed findings of fact and conclusions of law.  The matter is now ripe for decision.

DISCUSSION AND OPINION

I.  The coverage issue

Although it does not argue the issue in its brief, respondent's answer denies the allegations of Paragraph II of the complaint that it is engaged in a business affecting commerce, within the meaning of 3(5) of the Act, which provides:

The term "employer" means a person engaged in a business affecting commerce who has employees...

"Commerce," according to 3(3) of the Act,

. . .means trade, traffic, commerce, transportation, or communication among the several states, or between a State and any place outside thereof, or within the District of Columbia, or a possession of the United States (other than the Trust Territory of the Pacific Islands), or between points in the same State but through a point outside thereof.

In enacting this legislation, the Congress utilized to the maximum extent the power conferred on it by the commerce clause of the Constitution.  It is not necessary for an employer to be engaged directly in interstate commerce to affect it.  He may be "engaged in a business affecting commerce" if he uses materials or equipment manufactured outside the state or even if he uses the United States mails or interstate telephone lines.  Avalotis Painting Co., 81 OSAHRC 7/B1, 9 BNA OSHC 1226, 1981 CCH OSHD 25,157 (No. 76-4774, 1981); Brennan v. OSHRC (John J. Gordon Co.), 492 F.2d 1027 (2nd Cir. 1974).

The machine involved in the present citation was manufactured in Wisconsin (Tr. 47); this alone is enough to "affect commerce" under Avalotis and John J. Gordon Co., supra.  In addition, the Commission has held that the construction business, per se, affects commerce sufficiently to satisfy the requirements of 3(5).  Clarence M. Jones d/b/a C. Jones Co., 83 OSAHRC ___, 11 BNA OSHC 1529, 1983 CCH OSHD 26,516 (No. 77-3676, 1983).

II.  The alleged serious violation of 29 CFR 1926.550(a)(9)

Respondent is charged with a serious violation of 29 CFR 1926.550(a)(9) in that:

Accessible area(s) within the swing radius of the rear of the rotating superstructure of crane(s) were not barricaded in such a manner as to prevent employees from being struck or crushed by the crane:

(a) Crawler crane with drilling attachment had no means to prevent entry into the swing radius of the counterweight.  Located approximately center of excavation.

The cited standard 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.

"Crane" is not defined in the standards, so the Commission has been called upon several times to decide whether machines which performed lifting functions, but were not typical cranes, were required to meet the requirements for cranes.

Most of the cases have involved backhoes which were used primarily for excavating purposes but performed some lifting functions such as lowering pipe into a ditch.  Two early cases hold that such backhoes were not cranes within the ambit of 1926.550.  Felton Construction Co., 76 OSAHRC 136/C14; 4 BNA OSHC 1817, 1976-77 CCH OSHD 21,258 (No. 6759, 1976); Warner Brothers, Inc., 76 OSAHRC 138/D7, 4 BNA OSHC 1841, 1976-77 CCH OSHD 21,257 (No. 8841, 1976).  Felton and Warner were reversed, however, by Gil Haugan d/b/a Haugan Construction Co., 79 OSAHRC 105/A2, 7 BNA OSHC 2004, 1979 CCH OSHD 24,105 (Nos. 76-1512 and 76-1513, 1979), where the Commission majority held that 1926.550(a)(1) applied to a farm tractor equipped with a front-end loader to which a shop-made boom had been attached to lift bar joists, stating:

We hold that 29 C.F.R. 1926.550 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.  In making this determination, we look to the purposes of the Act and of the standard.  The stated purpose of Congress in enacting the Occupational Safety and Health Act, was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions..." 29 U.S.C. 651(b), so the Act and standards enacted pursuant to it must be liberally interpreted in light of the Act's remedial purpose.  See Southern Railway Co. v. OSHRC, 539 F.2d 335, 338 (4th Cir. 1976).

1979 CCH OSHD at p. 29,291.

Gil Haugan was followed in Tri-City Construction Co., 80 OSAHRC 9/F12, 7 BNA OSHC 2189, 1980 CCH OSHD 24,267 (No. 76-4094, 1980) (235 Crawler Caterpillar with rotating superstructure--also described as a backhoe--used to lower pipe into a ditch); and Suffolk County Contractors, Inc., 80 OSAHRC 52/F13, 8 BNA OSHC 1506, 1980 CCH OSHD 24,494 (No. 78-4479, 1980) (backhoe used for unspecified lifting purposes).

In Concrete Construction Co., 81 OSAHRC 7/D7 9 BNA OSHC 1278, 1981 CCH OSHD 25,156 (No. 77-2840, 1981), the Commission declined to apply 1926.550(a)(9) to a dragline used for dredging, although it piled dredged material, sometimes moved the piles of material, and, with substantial alterations, could be used to lift light loads.  The Commission distinguished this case on its facts from Gil Haugan and Tri-City, pointing out at that the dragline was not performing work usually performed by cranes and that the modifications that would enable it to lift light loads would take up to an entire day.  Commissioner Barneko also pointed out in a concurring footnote that even when so modified the dragline could not deposit loads gently and that there was no evidence the respondent had any intention of using the machine in that mode.  Respondent relies heavily on this footnote.

The machine here involved was specially built for drilling holes for piers to support buildings under construction, but it was constructed on a multi-purpose chassis known as "Northwest 41" by Northwest Engineering Co., Green Bay, Wisconsin.  The manufacturer's brochure, Exhibit C-1, illustrates configurations of the Northwest 41 as a crawler crane, a backhoe, and a dragline. Respondent's machine has a rotary drilling table and auger suspended from a boom.  The hydraulically-driven auger drills into the earth as far as 100 feet and is removed periodically to dislodge the dirt from it.  It has a hoisting line and performs other lifting functions, i.e., placing large steel casings weighing up to several thousand pounds in the hole to prevent caving and, after the hole is completed, lowering an assembly of reinforcing steel into it preparatory to the pouring of cement (Tr. 52, 53).  After the concrete is poured, the hoisting cable is used again to pull the casing (Tr. 54).

To Compliance Officer Bert C. Lindquist the machine was a crawler crane with a drilling attachment (Tr. 27), while Respondent's owner, A. H. Beck, III, insisted it was not a crane but a machine designed solely or primarily to drill piers (Tr. 36, 38, 41).  Both are well qualified to give an opinion on this subject.  Lindquist, in his 12 years as an OSHA compliance officer, had conducted approximately 800 inspections, including 500 involving cranes (Tr. 27).  His position at the time of the hearing was with OSHA's Maritime Compliance Assistance Program in Washington, D.C., dealing mostly with cranes and their certification (Tr. 28).  He had two years of college training in mechanical engineering (Tr. 5), worked as a superintendent for stevedoring companies loading and unloading vessels and rail cars, and had the usual OSHA training (Tr. 6).  Beck has a degree in civil engineering and has been in the pier drilling business since 1977 (Tr. 41, 42).  He designed the machine in question (Tr. 56).  And testified that, unlike a true crane, it could not use the resistance of its engine to permit it to lower heavy loads gently but had only its brakes to prevent a "free-fall" (Tr. 39).

Beck further testified that it would take two weeks to convert his machine into a true crane and that even then it would not be successful as a lifting machine because the Northwest 41 is not well adapted to that purpose (Tr. 58, 60).  However, the lifting jobs it regularly performed did not require alteration.  The drilling table was detachable (Tr. 48), but it was not detached before performing the lifting functions above described (Tr. 27).

Under Gil Haugen, supra, whether a machine must be treated as a crane depends not on what it is called but on how it is used, and a rotating-superstructure machine used for lifting functions normally performed by a crane must have its swing radius barricaded under 1926.550(a)(9).  Both Beck and Lindquist testified that the machine was used to lift casings and re-bars, and Beck testified that these loads could weigh several thousand pounds (Tr. 52, 53).  I find that this is the normal work of a crane and that this machine is subject to 1926.550(a)(9).

The machine has a rotating superstructure, and Lindquist testified without contradiction it formed "scissor points" with the machine's tracks, that a person could get caught therein, and that the result probably would be death (Tr. 15, 29).  He also testified that there was no barricade guarding the swing radius of the superstructure, that he would have accepted a rope barrier or a human guard, and that respondent promised to use a "human barrier" but did not (Tr. 14).

Respondent contends that 1926.550(a)(9), as applied to its machine, is unenforceably vague.  More specifically, it contends that "barricade" is not defined, hence it has no way of knowing how to comply.  This argument was rejected by the Commission in Concrete Construction Co., supra.   There the Commission pointed out that 1926.203(a) defines a barricade or "an obstruction to deter the passage of persons or vehicles" and that 1926.203 adopted by reference ANSI D6.1-1971, Manual for Uniform Traffic Devices for Streets and Highways, which depicts only physical devices such as cones, drums, saw-horses and tripod-mounted barriers.

Therefore, the Commission held that 1926.550(a)(9) was not unenforceably vague and, further, that a signalman would not suffice.  Therefore, Lindquist would not have been justified if he had accepted a "human barrier," as he said he would have.

The operator could not see to the rear, and neither could a "spotter" positioned in front (Tr. 12).

Respondent's superintendent admitted to Lindquist that he knew of a fatality resulting from a similar situation (Tr. 15).   This knowledge is imputable to respondent.

The next question is whether employees were exposed to the hazard.  Since respondent created the hazard, it is responsible for exposure of employees of other contractors on this multi-employer worksite as well as its own.  Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD 20,690 (Nos. 3694 and 4409, 1976).  Actually, there is proof both ways.

Beck testified that three of his employees (a superintendent, an oiler and a stem man or front-end man) "stay real close to the machine all day long" and are "around and about the machine constantly" (Tr. 54,55).

Lindquist, from a distance, saw one man jump atop a pile of lumber to escape the rear of the machine when it backed up, but he did not learn the man's identity or employer (Tr. 9).  The machine was in the middle of an excavation measuring about 300 x 500 feet which was crowded with men and equipment (about 60 men, 5 concrete trucks, a bulldozer, and a backhoe), and other subcontractors' employees were criss-crossing the area (Tr. 13, 17).  These employees at least had access to the hazard, and that is sufficient.  Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2009, 1975-76 CCH OSHD 20,448 (No. 504, 1976); Williams Enterprises, Inc., 79 OSAHRC 4/B5, 7 BNA OSHC 1015, 1979 CCH OSHD 23,279 (No. 14748, 1979).

III.  The appropriate penalty.

Section 17(j) of tie Act requires the Commission, in assessing penalties, to consider the gravity of the violation and the employer's size, good faith and history of previous violations.  These factors need not be accorded equal weight, but the gravity is usually of greater significance than the others.  Colonial Craft Reproductions, 72 OSAHRC 11/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD 15,277 (No. 881, 1972).  Elements to be considered in determining gravity include the number of employees exposed to the risk of injury, duration of the exposure, precautions taken against injury, and the degree of probability of occurrence of an injury.  National Realty & Construction Co., Inc., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD 15,188 (No. 85, 1972) rev'd on other grounds, 489 F.2d 1257 (D.C. Cir., 1973).

The Secretary has proposed a penalty of $160 in this case.  After considering the statutory criteria, I find this penalty appropriate.

FINDINGS OF FACT

On the basis of the foregoing Discussion and Opinion and all creditable evidence of record, the following findings of fact are made:

1.  The respondent is engaged at San Antonio, Texas, in a branch of the construction industry known as pier drilling in which it drills holes for concrete piers to support large buildings.  It uses in this work a pier drilling machine manufactured in the state of Wisconsin.  Respondent is engaged in a business affecting commerce within the meaning of 3(5) of the Act.

2.  On August 18-19, 1983, respondent was drilling piers for two buildings at Travis and St. Mary Streets in San Antonio when its workplace was inspected by an OSHA compliance officer.  Its pier drilling machine was being used in the center of an excavation measuring approximately 200 x 500 feet which was crowded with other machinery, including 5 concrete trucks, a bulldozer, and a backhoe, and about 60 employees of other contractors.  Respondent had three employees working closely around the machine in addition to the operator.

3.  Respondent's pier drilling machine was built on a Northwest 41 chassis which is available in several configurations for use as a crane, a backhoe, and a dragline.  Respondent's machine has a boom from which is suspended a hydraulically-powered auger capable of drilling holes to a depth of over 100 feet and 18 inches to 8 feet in diameter.  It has a rotating superstructure, or "house", mounted on continuous tracks like those of a conventional crawler crane.

4.  Respondent's pier drilling machine was used to perform lifting functions normally performed by a crane, including the placing of casings and reinforcing steel in the drilled holes and pulling the casing after pouring of concrete.  This involved lifting of loads of up to several thousand pounds.

5.  As used by respondent, the swing radius of the machine was not barricaded in any manner.  The rotating superstructure and the tracks provided scissor points in which an employee could be crushed.  There was a substantial probability that death or serious physical injury could be suffered by an employee caught in one of these scissor points.

6.  Respondent knew or in the exercise of reasonable diligence could have known of the existence of the hazard caused by these scissors points.

7.  A penalty of $160 is appropriate.

CONCLUSIONS OF LAW

On the basis of the foregoing findings of fact and the entire record, the following conclusions of law are made:

1.  The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2.  On August 18 and 19, 1983, respondent was in serious violation of 5(a)(2) of the Act and the standard at 29 CFR 1926.550(a)(9)

ORDER

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

1.  Item 1 of citation 1, issued to respondent August 29, 1983, for serious violation of 5(a)(2) of the Act and the standard at 29 CFR 1926.550(a)(9), is AFFIRMED and a penalty of $160 is ASSESSED.

2.  Respondent's proposed findings of fact and conclusions of law, to the extent that they are inconsistent with this Decision and Order, are DENIED.

DEE C. BLYTHE
Administrative Law Judge
Dated:  June 1,1984


FOOTNOTES:

[[1]] In his brief, the Secretary specifically states that he does not contend that the drilling operation was a function normally performed by cranes.  He is therefore apparently conceding that, at the times the machine was being used to drill, it was not a crane. This concession also suggests that Beck's machine is not a crane.

In a footnote to his brief, the Secretary briefly cites section 5-0.1 of ANSI B30.5-1968.  That section provides, "Some basic machine types within this scope are usually convertible for excavating work and other uses not considered to be lifting service.  The requirements of this volume are applicable only to machines when used as lifting cranes."  The provision, however, suggests that the machine must be "converted" in some manner between service as a lifting crane and other service.  The record here does not show that any conversion was performed between the drilling operation and the use of the machine to lift the rebars.  It would be anomalous to suggest that this machine was subject to crane standards during one portion of its work but not during another part of the same continuous operation.

[[2]] See also Alaniz v. Office of Personnel Management, 728 F.2d 1460, 1465 (Fed. Cir. 1984); Pitzak v. Office of Personnel Management, 710 F.2d 1476, 1479 n.2 (10th Cir. 1983); Ames v. Merrill, Lynch, Pierce, Fenner & Smith, 567 F.2d 1174, 1177 n.3 (2d Cir. 1977).