SLETTEN CONSTRUCTION COMPANY

OSHRC Docket No. 967

Occupational Safety and Health Review Commission

October 3, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge John J. Morris, dated February 1, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision is affirmed except insofar as it:

(a) Holds that the respondent violated 29 U.S.C. 654(a)(2) by failing to comply with an occupational safety standard codified at 29 C.F.R. 1926.604(a)(2) and assesses a 125.00 penalty therefor (Item 3, Citation);

(b) Affirms those parts of a citation that allege that the respondent violated 29 U.S.C. 654(a)(2) because its American crawler crane contained deficiencies proscribed by occupational safety standards codified at 29 U.S.C. 1926.550(a)(12) and (b)(2) (Items 2 and 1, respectively, Citation); and

(c) Assesses a penalty in excess of $50.00 for the respondent's noncompliance with 29 C.F.R. 1926.550(b)(2) (Item 1, Citation).

Item 3 of the Citation averred that the respondent failed to comply with 29 C.F.R. 1926.604(a)(2) in that its D-8 bulldozer was not equipped with an overhead and rear canopy guard. That standard provides that all equipment used in "site clearing operations" [*2] shall have such a guard.

The standard does not define "site clearing operations," and our attention has not been directed to any other publication which defines that term. The respondent contends that the standard is inapplicable because its bulldozer was being used for grading and not site clearing. We agree.

The evidence indicates that the respondent was using its bulldozer to level the ground at its worksite. This involved the moving of some boulders, the largest of which was about three feet in diameter. The respondent's vice-president testified that it had used a subcontractor to perform the site clearing work. Regarding the meaning of "site clearing," he testified as follows:

Normally, site clearing, to a contractor, is preparing an area, to move material, such as dirt or rock. You do away with all timber, the foreign material, that cannot be put into a fill.

[S]ite clearing is a bid item on a job, and they have site clearing on a lot of your forestry work, your highway work, your Bureau work -- its cleaning timber and brush, foreign material that you don't want put into fills or pur fills on.

[S]ite clearing is removing, to us in our construction talk [*3] . . . it could be a mountainside, or it could be flat land timber. . . .

He also expressed the opinion that moving a boulder did not constitute "site clearing."

We have previously indicated that the definition of a term can be clarified by the special technical meaning ascribed to it within a particular industry. Secretary v. Santa Fe Trail Transportation Co., 5 OSAHRC 840 (1973). In the instant case, the evidence shows that the construction industry does not consider the term "site clearing" to include grading operations. This is consistent with the ordinary meaning of the term. Webster's Third New International Dictionary (Unabridged 1971) defines a "clearing" as "a tract of land cleared of wood and brush."

Item 1 of the Citation asserted that the booms of the respondent's number 9 truck crane, number 1 crawler crane, and American crawler crane were defective. The violation alleged in item 2 of the Citation was that the glass in the cabs of the number 1 crawler crane and the American crawler crane was broken. It was stipulated at the hearing that the American crawler crane had not been used at the respondent's worksite.

A violation cannot be affirmed unless the evidence [*4] establishes that some of the respondent's employees were exposed to the alleged hazard. Secretary v. Hawkins Construction Co., Secretary v. City Wide Tuckpointing Service Co., Furthermore, use of defective equipment is an essential element of the charges in item 1 because 29 C.F.R. 1926.550(b)(2) provides that "cranes in use shall meet the applicable requirements for . . . maintenance" that are referred to therein.

Our vacation of the portion of item 1 pertaining to the American crawler crane requires reassessment of the penalty assessed for that violation. The Judge affirmed a $125.00 penalty as proposed by the complainant. Considering the remaining violations and the paucity of evidence presented as to the gravity thereof, we find that $50.00 is an appropriate penalty for item 1. Since no penalty was proposed or assessed for item 2, our modification of that violation does not require any further action.

Having examined the record in its entirety, we conclude that the remaining issues which were raised on review present no prejudicial error and do not warrant discussion.

Item 3 [*5] of the Citation and the penalty assessed therefor are vacated. Those parts of items 1 and 2 of the Citation regarding the American crawler crane are vacated, and a penalty of $50.00 is assessed for item 1. The remaining findings of the Judge are affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: Although I concur with the majority's vacation of three items of the citations, I cannot agree with their reasoning.

Respondent's D-8 bulldozer was clearing an area of small boulders. The majority holds that such activity is not "site clearing" within the meaning of 29 CFR 1926.604(a)(2). I disagree. I find little support in the record for the majority's holding that "site clearing" only involves the clearing of timber or brush. I also find respondent's vice-president's definition of "site clearing," cited by the majority, as unpersuasive in light of conflicting testimony as to meaning of this term within respondent's particular industry. Moreover, in absence of a limitation in the standards or persuasive evidence as to the meaning of the term in respondent's particular industry, the plain meaning of the term must be considered. Respondent was "clearing" a "site" and, as [*6] such, was subject to the provisions of 29 CFR 1926.654(a)(2). The more restrictive definition urged by the majority is neither warranted by the record nor nonsonant with the Act's creation of a duty to provide a safe workplace for employees.

Although I find that respondent was engaged in "site clearing," I find no violation of the standard. Respondent was cited for failing to provide overhead and rear canopy guards for its D-8 bulldozer. Such guards serve to "minimize the possibility of operator injury resulting from overhead hazards such as flying or falling objects." n1 The record indicates that no such hazards were present at respondent's worksite. Hence those provisions of 29 CFR 1926.604(a)(2) requiring overhead and rear canopy guards do not apply to respondent on these facts. n2 In other words, the Judge was correct in holding the standard applicable to respondent, but he was incorrect in applying that portion of the standard dealing with overhead and rear canopy guards to respondent when such guards are only necessary when "site clearing" involves hazards from flying or falling debris such as timber or brush.

- - - - - - - - - - - - - - - - - -Footnotes- [*7] - - - - - - - - - - - - - - - - -

n1 29 CFR 1926.1003(a)(1).

n2 In addition to overhead and rear canopy guards the standard also requires rollover guards. Respondent was not cited for failure to comply with this portion of the standard.

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The majority also vacates two items of the citation dealing with the defective boom and broken cab glass on respondent's American crawler crane based on the absence of proof of actual employee exposure to the defective crane. I cannot agree with the majority in that they would require a showing of actual employee exposure to a hazardous condition before finding a violation of the Act. J. E. Roupp & Co., & Denver Dry Wall Co., Nos. 146 & 147 (April 15, 1974) (Cleary, Commissioner, dissenting). The Act is designed to protect employees from exposure (whether actual or potential) to hazardous work situations.

In this case, however, the parties stipulated that respondent's American crawler crane had not been used at the jobsite. Moreover, there is a specific standard dealing with potential employee exposure to defective equipment present at a jobsite. The [*8] standard at 29 CFR 1926.20(b)(3) provides:

The use of any machinery, tool, material, or equipment which is not in compliance with any applicable requirement of this part is prohibited. Such machine, tool, material, or equipment shall either be identified as unsafe by tagging or locking the controls to render them inoperable or shall be physically removed from its place of operation (emphasis added).

Respondent was not cited for failure to comply with this standard. Additionally, the record reveals no evidence of such failure. Consequently, I concur with my colleagues inasmuch as they find no violation of any standard with respect to respondent's American crawler crane.

[The Judge's decision referred to herein follows]

MORRIS, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting certain Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citations allege that Complainant inspected a workplace under the ownership, operation or control of the Respondent, located on U.S. [*9] Highway 12, at the location of a bridge across the Clear Water River, said worksite being known and described as the Arrow Junction Job. It is further alleged that at said worksite Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations were all issued on May 17, 1972, and said Citations allege that certain violations resulted from a failure of Respondent to comply with certain standards promulgated by the Secretary by publication in the Federal Register and codified as hereinafter described.

I

The description of the alleged violation contained in the Citation for serious violation Number 1 states as follows:

Using wire rope that is damaged and showing distortion on #9 truck crane and on #1 crawler crane. The 3/3" main line is bird caged and the 5/8" boom lifting line is damaged from running over a broken sheave on #9 truck crane. The 3/4" main line of #1 crawler crane shows peening of more than 1/3 the original diameter of the outside wires. It also has many breaks in the wires in one lay.

The Citation alleges that the standard [*10] violated is 29 CFR Part 1926 (formerly Part 1518) as adopted by 29 CFR Part 1910.12; more specifically Section 1926.550(a)(7)(ii).

The standard as promulgated by the Secretary provides as follows:

Subpart N-Cranes, Derricks, Hoists, Elevators, and Conveyors.

29 CFR 1926.550 Cranes and derricks.

(a) General requirements. (1) The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks. Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded. Attachments used with cranes shall not exceed the capacity, rating, or scope recommended by the manufacturer.

(7) Wire rope shall be taken out of service when any of the following conditions exist:

(ii) Wear of one-third the original diameter of outside individual wires. Kinking, crushing, bird caging, or any other damage resulting in distortion of the rope structure.

II

The description of the alleged violation contained in Citation 1, Item 1 states [*11] as follows:

(1) The truck crane #9 has 2 cords bent in two directions in the area of #3 & 4 joint connections of boom.

(2) The crawler crane #1 has four lacings, on the top section of the boom that are bent. This same crane has two cords bent in two directions in the area of #2 & 3 joint connections of the boom.

(3) The American crawler crane has eight lacings bent in the upper tip section of the boom. This same crane has a cracked weld at the welded connection of a lacing to the main cord in the upper tip section of the boom. In the boom lower tip section of this same crane is a broken lacing. In the area of #2 joint of the boom of this crane there are 3 bent lacings. The Citation alleges that the standard violated is 29 CFR Part 1926 (formerly Part 1518) as adopted by 29 CFR 1910.12 and specifically Section 1926.550(b)(2) thereof.

The standard as promulgated by the Secretary provides as follows:

29 CFR 1926.550(b)(2)

(b) Crawler, locomotive, and truck cranes. (1) All jibs shall have positive stops to prevent their movement of more than 5 degrees above the straight line of the jib and boom on conventional type crane booms. The use of cable type belly slings [*12] does not constitute compliance with this rule.

(2) All crawler, truck or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Granes.

III

The description of alleged violation contained in Citation Number 1, Item 2 states as follows:

The #1 crawler crane and the American crawler crane have broken cab glass. The Citation alleges that the standard violated is 29 CFR Part 1926 (formerly Part 1518) as adopted by 29 CFR 1910.12; more specifically Section 1926.550(a)(12) thereof.

The standard as promulgated by the Secretary provides as follows:

29 CFR 1926.550 Cranes and derricks.

(a) General requirements.

This standard is set forth more particularly in paragraph I hereof, which is referred to by reference.

(12) All windows in cabs shall be of safety glass, or equivalent, that introduces no visible distortion, that will interfere with the safe operation of the machine.

IV

The description of the alleged violation contained in Citation 1, Item 3 states as follows:

Failure to provide overhead and rear canopy guard [*13] for the D-8 bulldozer. The Citation alleges that the standard violated is 29 CFR Part 1926 (Formerly Part 1518) as adopted by 29 CFR Part 1910.12; more specifically Section 1926.604(a)(2) thereof.

The standard as promulgated by the Secretary provides as follows:

29 CFR 1926.604 Site clearing.

(a) General requirements. (1) Employees engaged in site clearing shall be protected from hazards of irritant and toxic plants and suitably instructed in the first aid treatment available.

(2) All equipment used in site clearing operations shall be equipped with rollover guards meeting the requirements of this subpart. In addition, rider operated equipment shall be equipped with an overhead and rear canopy guard meeting the following requirements:

(i) The overhead covering on this canopy structure shall be of not less than 1/8-inch steel plate or 1/4-inch woven wire mesh with openings no greater than 1 inch, or equivalent.

(ii) The opening in the rear of the canopy structure shall be covered with not less than 1/4-inch woven wire mesh with openings no greater than 1 inch.

V

The description of the alleged violation in Citation 1, Item 4 states as follows:

Failure to maintain [*14] a log of occupational injuries and illnesses on Form OSHA No. 100.

The Citation alleges that the standard violated is 29 CFR Part 1926 (Formerly Part 1518) as adopted by 29 CFR Part 1910.12; more specifically 29 CFR 1904.2.

The standard as promulgated by the Secretary provides as follows:

29 CFR 1904.2 Log of occupational injuries and illnesses.

(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. If an equivalent to OSHA Form No. 100 is used, [*15] such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both, under the following circumstances:

(1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.

(2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45-calendar days.

VI

The description of the violation contained in Citation Number 1, Item 5 states as follows:

Failure to compile an Annual Summary of Occupational Injuries and Illnesses on Form OSHA No. 102.

The Citation alleges that the standard violated is 29 CFR Part 1926 (Formerly Part 1518) as adopted by 29 CFR Part 1910.12; [*16] more specifically 29 CFR 1904.5(a).

The standard as promulgated by the Secretary provides as follows:

29 CFR 1904.5 Annual summary.

(a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment. Each annual summary shall be based on the information contained in the log of occupational injuries and illnesses for the particular establishment. Form OSHA No. 102 shall be used for this purpose, and shall be completed in the form and detail as provided in the instructions contained therein.

VII

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 17, 1972 from Eugene Harrower, Area Director for the Occupational Safety and Health Administration; the Area Director proposed to assess penalties for the violations alleged on the following basis:

Standard -- Citation -- Cited -- Civil Penalty

29 CFR 1926(a)(7)(ii) -- No. 1 -- I -- $500

29 CFR 1926.550(b)(2) -- No. 1, Item 1 -- II -- $125

29 CFR 1926.550(a)(12) -- No. 1, Item 2 -- III -- no monetary

29 CFR 1926.604(a)(2) -- No. 1, Item 3 -- IV -- $125

29 CFR 1904.2 -- No. 1, Item 4 -- V -- no monetary [*17]

29 CFR 1904.5 -- No. 1, Item 5 -- VI -- no monetary

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Great Falls, Montana, on September 28, 1972. No parties desired to intervene in the proceedings.

STATEMENT OF JURISDICTION

The parties had stipulated that the Occupational Safety and Health Review Commission has jurisdiction of this cause (Tr. 7). Further Respondent is a Montana Corporation doing business in the State of Idaho and in other States; it further uses the facilities of interstate commerce and purchases the goods and merchandise from other states (Tr. 7).

Under Section 3 of the Act an employer is defined as follows:

(5) The term "employer" means a person engaged in a business affecting commerce, who has employees, but does not include the United States or any state or political subdivision of a state.

In view of the stipulation in the case and the statements of counsel it follows that the Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this litigation and the undersigned has jurisdiction to hear and determine this [*18] cause upon assignment from the Review Commission.

THE EVIDENCE

Serious alleged violation number 1 deals with the distorted wire rope on the number 9 truck crane and the number 1 crawler crane as set forth with particularity in paragraph I hereof. The standard as promulgated by the Secretary is 29 CFR 1926.550(a)(7)(ii).

The evidence of the Complainant consisted of the testimony of Compliance Officer Richard Jackson (Tr. 8) who conducted an inspection of the Respondent's premises on April 26, 1972 (Tr. 10, 11) and the Citations were issued as the result of that inspection. During his inspection he was accompanied by the jobsite superintendent, a Mr. Anderson (Tr. 12). They drove to the number 9 crane (Tr. 12); he further inspected the number 1 crawler crane (Tr. 13a). The Compliance Officer inspected the 3/4 inch mainline and found that it was a distorted and "birdcaged" (Tr. 15). The particular wire was a right hand twist wire and the "birdcage" is a reverse twist of the wire opening, so that it cannot be twisted in the same direction as it came from the factory (Tr. 16). There were approximately seven sections of wire with each section made up of 19 wires (Tr. 16). [*19] The particular birdcage was some 4 to 5 inches in length and for 2 1/2 inches in the center you could see through the wire (Tr. 17). Witness Jackson qualified as having extensive experience in cranes and wire rope (Tr. 10). He further had experience in marine crane certification (Tr. 10) as a director of the safety and maintenance for cranes ranging from 20 ton cranes to 200 ton floating marine cranes (Tr. 10). In witness Jackson's opinion a birdcage of this type could not lift half of its breaking strength and capacity (Tr. 18, 19), and he would limit the use of this particular wire to 2000 pounds (Tr. 47). The particular breaking strength of this cable was 29 tons. In his previous experience Witness Jackson had taken wire rope out of service with less birdcage than this (Tr. 20), and he considered the 3/4-inch mainline and 5/8-inch boom life to be serious violations (Tr. 52). The effect of birdcaging is to put an overdue stress on individual wires (Tr. 20). Individual stress causes a chain reaction causing one strand to break and then the weight transfers to the remaining strands (Tr. 21). At the time of the inspection the Respondent was pouring concrete with this equipment; [*20] the bucket and contents weighed some 4500 pounds (Tr. 23).

In pouring concrete the particular procedure would be to lower the bucket to workmen (Tr. 55) who would then trip the contents into forms (Tr. 55).

The 5/8 inch lifting line on the #9 crane was damaged from severe chaffing (Tr. 26-27) and there were multibreaks in one full twist of the wire (Tr. 21, 17).

Additional relevant evidence as to other than serious violations as alleged in Citation number 1, Items 1, 2, 3, 4 and 5 is not disputed and such additional evidence will be reviewed under the issues hereinafter discussed.

ISSUES PRESENTED

The primary issue presented in this cause is whether or not there is a substantial probability of death or serious injury in connection with the alleged serious violation contained in Citation number 1 (Tr. 4, Respondent's brief and Respondent's compliance with Commission order, filed September 25, 1972). As to this Citation the evidence clearly shows that number 9 truck crane had a 3/4 inch mainline that was distorted or "birdcaged" (Tr. 15). The birdcage was 4 to 5 inches in length (Tr. 16) and for 2 1/2 inches in the center a person could see through the wire (Tr. 16). [*21] In addition the 5/8 inch lifting line was damaged (Tr. 23) and there was severe chaffing (Tr. 26-27) and multi breaks in one full twist of the wire (Tr. 21, 27). The number 9 truck crane when inspected had a concrete bucket hanging from the line (Tr. 57). The particular procedure was to lower the bucket filled with concrete directly to workmen (Tr. 55), who would then trip it into forms (Tr. 55). In the judgment of the Compliance Officer the 3/4 inch line could break with a 4500 to 5000 pound pull (Tr. 58) and the Compliance Officer considered both the 3/4 inch mainline and the 5/8 inch boomline to be serious violations (Tr. 49). Respondent's evidence admits the "birdcaging" of 4 to 5 inches and a "medium" distortion (Tr. 67) but contends that the line was sufficient for the purpose being used.

This Judge finds that the Complainant has carried the burden of proof required of him under Commission Rule 2200.73. The expertise of the Compliance Officer in testing cranes, including marine cranes from 20 ton capacity to 200 ton floating marine cranes and in dealing with the safety and maintenance of such cranes (Tr. 10) clearly outweighs the expertise of Respondent's witnesses. [*22] Additional persuasive evidence was the fact that Respondent's superintendent became emotional upon seeing the lifting line on the crane (Tr. 28) and stated "with that condition of the wire I could have gotten killed" (Tr. 29). This Judge overruled a timely objection by Respondent's Counsel as to the aforesaid statement by Respondent's Superintendent. The statement is admissible under two well known exceptions to the hearsay rule, namely, admissions by representative of a party ( Nuttall vs. Holman, 110 Utah 375, 173 P. 2nd 1015; the statement is further a spontaneous declaration properly classified as an excited utterance and therefore admissible as a recognized exception to the hearsay rule, 6 Wigmore, Evidence, Section 1745-1764). Since there was a violation of 29 CFR 1926.550(7)(ii) the question of whether the violation was a serious nature must be resolved by an interpretation of Section 17(k) of the Act. Section 17(k) provides as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment where there is a substantial probability that a death or serious physical harm could result from a condition which exists, or [*23] from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

In this case the evidence indicated that 3/4 inch line would break with 4500 to 5000 pull on it (Tr. 58). In the judgment of the Compliance Officer the breaking point on the 3/4 inch line was 8000 pounds (the concrete and bucket in this case weighed 500 pounds) a pull on the cable could exceed 8000 pounds due to slack in the line, and related factors (Tr. 52). The evidence indicates that a bucket filled with concrete was being lowered to workmen (Tr. 55) where it was then tripped into forms on a direct feed (Tr. 55). It seems obvious if the line were to part when under the stress of a 5000 pound weight together with the stress of being lowered and swung to workmen then in such circumstances the probability of death or serious physical harm is apparent. One member of the crew knew about the condition of the line (Tr. 58). Respondent did not maintain a periodic inspection system on the cranes and at best Respondent's inspection [*24] system was irregular (Tr. 98-99).

It is this Judge's view that a serious violation existed for Citation number 1 [as set forth in paragraph I] and there was further a substantial probability that death or serious physical harm could result therefrom.

The initial proposed unadjusted penalty was $1,000 (Tr. 38). This was reduced for good faith (20%), for size (10%), prior record (20) all for a net proposed penalty of $500.00. One of the primary purposes of the Act is to obtain compliance ( Secretary of Labor vs. Spildie Construction Company OSAHRC Docket #646). In this case Respondent has clearly demonstrated its good faith in fully complying with the Act (Tr. 6) and immediately abating the conditions (Tr. 6). This Judge is of the opinion that the proposed penalties for the serious violation is proper. It accordingly follows that the Citation should be affirmed and the proposed penalty of $500 should be affirmed.

Alleged violations contained in Citation number 1, Item 1 for other than serious violations are set forth with particularity in paragraph II hereof. Counsel for the parties stipulated that the actual existence of the conditions alleged was not an issue [*25] (Tr. 4) but the issue the parties presented was that the American Crawler Crane was located on the job site but had not been used there (Tr. 4; Respondent's Brief).

This Judge agrees with the well reasoned decision of Judge James D. Burroughs in the case of James D. Hodgson, Secretary of Labor. vs. Allied Electric Company, OSAHRC Docket #433 wherein he discussed whether it was nedessary to show an actual use of defective equipment. This opinion stated:

1.c 16 It would be an undo burden on the petitioner to require a showing of actual use of defective equipment. Any such requirement would cause the Compliance Officer to wait around in hopes of someone using the equipment. This would result in a cat and mouse game as contended by the petitioner. More importantly, it would expose an employee to a hazard prior to the Secretary being able to require it to be corrected.

The Act must be construed and enforced with some degree of reasonableness. The objective of the Act can best be accomplished by placing emphasis on the accessability of the employee to defective equipment. If the defective equipment is available for use by the employee then a Citation should issue. Under such [*26] circumstances, the employee is exposed to a potential hazard even if he is not using the equipment at the time of the inspection. The equipment is accessible to him and could be used."

This Judge agrees with the foregoing analysis and states the law to be that where the Complainant has established the violation of a standard and where such defective equipment is available for use by employees then a Citation should issue. To avoid the consequences of such a Citation under these circumstances an employer should immobilize or render inoperable by effective means or remove the particular piece of defective equipment [see 29 CFR 1926.20(b)(3) regarding removal of defective equipment from use]. No such evidence was offered in this case and it follows that the position urged by Respondent that the equipment was not "in use" should be denied. Inasmuch as there was no contest (Tr. 4) to the allegations in Citation number 1 item 1, subparagraphs (1), (2) and (3) it follows that the Citations should be affirmed. The proposed civil penalties were for an initial unadjusted penalty of $500 for the three cranes and this was reduced for good faith, for size, and prior record, and [*27] a 50% reduction for abatement (Tr. 38). The ultimate proposed civil penalty was in the amount of $125.00 and this Judge finds that the proposed penalty is proper and should be affirmed.

As to the alleged violation contained in the other than serious Citation number 1, Item 2 relating to the broken cab glass in the number 1 crawler crane and the American crane [as set forth in paragraph III] it was agreed that there was "no contest" as to this violation (Tr. 4). It follows that these Citations should be affirmed. The Area Director proposed to assess no penalty for these violations and such a proposal is proper and should be affirmed.

The alleged violation contained in Citation number 1, Item 3 [as set forth with particularity in paragraph IV hereof] involves the failure to provide overhead and rear canopy guard for the D-8 bulldozer. The standard requires that all equipment used in "site clearing operations" shall be equipped with rollover guards. The issue is whether the particular facts constitute here "site clearing operations" (Tr. 5). The standard allegedly violated contains no definition as to what constitutes "site clearing operations." Further, this Judge speculates [*28] that it might be extremely difficult for the Secretary to draft a comprehensive definition as to what activity that might constitute "site clearance." Respondent's witnesses indicated that site clearing is generally considered to be the clearing of timber, brush and foreign matter from a given site (Tr. 83). In industry a site clearing subcontractor is not expected to grade to any appreciable extent (Tr. 83). However, the purpose of the Act and regulations are to assure safe and healthful working conditions for working men and women. The evidence of record shows that the work of the bulldozer was being done on "sort of" a river bank (Tr. 64); the bulldozer was getting rid of larger rock (Tr. 64), and the area was half level (Tr. 64). The equipment was moving earth and digging foundation bases (Tr. 37). The largest boulder would be from 3 feet in diameter down to gravel (Tr. 73) and the equipment was pushing a causeway into a river and it was also working a river bed area (Tr. 73). The area being worked was approximately 1300 feet long, (Tr. 75) and wide enough to accomodate a crane and a truck (Tr. 75). This Judge's view is that the removal of the rock, the pushing [*29] of a causeway into a river bed, and the working of the equipment on uneven half level terrain all constitute site clearance within the meaning of the standard. The standard was designed to protect a workman operating a bulldozer under conditions where it could tip over. Even though a contractor may generally consider a construction term to have a specific contract meaning such a meaning is not necessarily binding in the administration of the Act. The overriding statutory obligation is to provide a safe work place for employees. The principal test then is whether the facts in a given case establish a basis to invoke the standard. Further, if the standard is followed does it appear likely to an employer that an unsafe working practice has thereby been avoided.

The Compliance Officer recommended a proposed civil penalty for the use of the bulldozer in the final amount of $125 which was arrived at on the same basis of the violations as to the three cranes (Tr. 37, 38). He considered that there was less likelihood of an accident in the manner which the bulldozer was being used, but the severity would be the same (Tr. 40). This Judge agrees that the bulldozer was being used in "site [*30] clearance," and the citation and proposed penalty of $125.00 should be affirmed.

The allegations pertaining to the failure to maintain a log for occupational injuries and illnesses and the allegations of alleged violation pertaining to the failure to maintain an annual summary of occupational injuries and illnesses [as set forth respectively in paragraphs V and VI hereof] and alleged in Citation number 1, Items 4 and 5 were alleged in the Complaint (paragraph VII) and not replied to in Respondent's answer and accordingly are deemed admitted under Commission Rule 2200.33(b)(3). The transcript further indicates that these items are not in issue (Tr. 5). It accordingly follows that said Citations should be affirmed and likewise the proposal of no monetary penalty is proper and should be affirmed.

FINDINGS OF FACT

1. The Respondent is now and was at all times herein mentioned a Montana Corporation doing business in the State of Idaho and in other states. Respondent uses the facilities of interstate commerce and purchases goods and merchandise from other states (Tr. 7).

2. The 3/4 inch mainline on Respondent's crane was distorted and birdcaged (Tr. 15).

3. The birdcage [*31] described in the preceding paragraph was 4 to 5 inches in length and for 1 1/2 inches in the center a person could see through the wire (Tr. 17).

4. The 5/8 inch lifting line on Respondent's crane was damaged from severe chafing (Tr. 26-27) with multi breaks in one full twist of the wire (Tr. 21, 27).

5. the crane above described was lifting a concrete bucket (with contents) weighing 5000 pounds and the 3/4 inch line would break with a 4500 to 5000 pound pull on it due to stress, slack, pulling and related factors (Tr. 52, 58).

6. The crane described above was lowering a bucket filled with concrete to workmen by whom the concrete was tripped into forms on a direct feed (Tr. 55).

7. The parties agreed that the existence of the conditions alleged in Citation number 1, item 1 (1), (2), and (3) were not in issue (Tr. 4).

8. The American crawler crane [Citation number 1, item 1 (3)] were not in issue (Tr. 4).

9. As to the allegations in Citation Number 1, Item 2 that the cranes had broken cab glass [paragraph II hereof] it was agreed by the parties that there was no contest on this issue (Tr. 4).

10. Respondent's D8 bulldozer was engaged in site clearing operations [*32] when the operator was moving earth, pushing a causeway into a river, and operating on half level ground involving boulders from 3 feet in diameter to gravel (Tr. 37, 64, 73).

11. Citation number 1, items 4 and 5 [pertaining to the log of occupational injuries and annual summary of occupation injuries paragraphs V and VI hereof] were pleaded in the complaint but not replied to in Respondent's answer (Complaint; Answer; Tr. 5).

CONCLUSIONS OF LAW

1. The Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970.

2. The Respondent is, and was at all times herein mentioned, an employer within the meaning of Section 3(5) of the Act and subject to the provisions under Section 4(a) and 5(a) of the Act and standards authorized by Section 6.

3. Findings of fact numbered 2, 3, 4, 5 constitute a violation of 29 CFR 1926.550(a)(7)(ii).

4. Finding of fact number 6 and the preceding paragraph constitute a serious violation likely to cause death or serious injury.

5. Finding of fact number 7 constitute an admission as to the truth of the allegations in [*33] Citation 1, item 1 (1), (2) and (3).

6. Finding of fact number 8 does not constitute a defense to a violation of 29 CFR 1926.550(b)(2).

7. Findings of fact number 9 constitutes an admission as to the truth of the allegations in Citation number 1, item 2.

8. Finding of fact number 10 constitutes a violation of 29 CFR 1926.604 in that the activities described therein constitute "site clearing operations."

9. Finding of fact number 11 establishes a violation of Citation number 1, items 4 and 5 (as to log and summary).

ORDER

Based on the foregoing findings of fact and conclusions of law it is hereby ORDERED:

1. Citation Number 1 for alleged serious violation of 29 CFR 1926.550(a)(7)(ii) is affirmed.

2. The proposed civil penalty of $500 for the violation found in the preceding paragraph is affirmed.

3. Citation 1, item 1, (1), (2), and (3) for the alleged violation of 29 CFR 1926.550(b)(2) is affirmed.

4. The proposed civil penalty of $125 for the violation found in the preceding paragraph is affirmed.

5. Citation Number 1, item 2 for alleged violation of 29 CFR 1926.550(a)(12) is affirmed.

6. The proposal to assess no monetary penalty for the violation [*34] found in the preceding paragraph is affirmed.

7. Citation number 1, item 3 for the alleged violation of 29 CFR 1926.604 is affirmed.

8. The proposed civil penalty of $125 for the violation found in the preceding paragraph is affirmed.

9. Citation number 1, item 4 for the alleged violation of 29 CFR 1904.2 is affirmed.

10. The proposal to assess no monetary penalty for the violation found in the preceding paragraph is affirmed.

11. Citation number 1, item 5 for the alleged violation of 29 CFR 1904.5 is affirmed.

12. The proposal to assess no monetary penalty for the violation found in the preceding paragraph is affirmed.

So ORDERED.