Docket No. 12982

WHEELING-PITTSBURGH STEEL CORPORATION

OSHRC Docket No. 12982

Occupational Safety and Health Review Commission

March 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

William S. Kloepfer, Assoc. Regional Solicitor

Patrick W. Ritchey, for the employer

Sidney Macre, Safety Chairman, United Steelworkers of America, District 23, Local Union 1190 AFL-CIO-CLC, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

An October 8, 1975 decision by Administrative Law Judge Ben D. Worcester, in a proceeding under the Occupational Safety and Health Act of 1970 n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). The issues presented in this case are whether Judge Worcester erred in vacating two items of a nonserious citation, alleging violations of 29 C.F.R. 1910.179(1)(3)(ii) and 29 C.F.R. 1910.179(d)(3) respectively. For the following reasons, we reverse the decision to vacate the violation of 29 C.F.R. 1910.179(1)(3)(ii) and affirm the decision to vacate the violation of 29 C.F.R. 1910.179(d)(3).

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n1 84 Stat. 1590, 29 U.S.C. sec. 651 et seq., hereafter the Act.

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ALLEGED VIOLATION OF 1910.179(1)(3)(ii) [*2] n2

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n2 This standard states, in part:

"(3) Adjustments and Repairs

. . . (ii) Adjustments shall be maintained to assure correct functioning of components. The following are examples: (a) All functional operating mechanisms

(b) Limit switches

(d) Brakes

(e) Power plants"

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This item concerns a 35-ton overhead crane in Respondent's Steubenville, Ohio steel mill. It is alleged that the hydraulic foot brake on the No. 72 crane was not maintained in such a manner so as to effectively stop the crane while in motion.

The record reflects that the day prior to the inspection of Respondent's mill by Complainant's compliance officer, the engine of this particular crane had mechanical failures and was removed to be repaired. In order to complete this task, the hydraulic foot brake components also had to be removed. At the time of the inspection, the engine had been repaired and replaced. The operation of the crane was possible and, in fact the crane was in use under normal work conditions. The brake [*3] mechanism, however, had not yet been replaced.

According to the evidence in this case, it is common in the operation of the crane to employ a method called "plugging" to brake the crane. To accomplish this Respondent's crane operator reverses the crane's travel controls to thereby put the crane's motor in reverse. The motor is electrically operated and is energized from an electrical power source. The only alterative method of stopping the crane involves the use of the hydraulic foot brake, which ordinarily according to the record is used by the crane operator only when the crane is carrying a heavy load, when it is traveling a greater distance than normal or when it is operating at a speed that is faster than normal. Without an operable hydraulic foot brake, and in the event of an electrical failure, there would be no effective method of stopping the motion of the crane. The crane operator testified that his inability to stop the crane could result in injury to employees who work on the floor beneath the crane.

Respondent argued before the judge and on review n3 that it should not be found in violation of the standard because (1) Complainant has failed to show the existence [*4] of a hazard since Respondent's usual method of braking the crane, i.e., plugging, is safer than use of the hydraulic brake, (2) Complainant failed to prove that its employees were exposed to a hazard, and (3) that compliance with the standard was not required because repairs were being effected. Judge Worcester's reasons for vacating are that "the Secretary has merely presumed that the dismantled brake created a hazard to Respondent's employees" and "not even a presumption arises that Respondent failed to properly maintain No. 72 crane," Judges decision at page 6.

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n3 Respondent also argued before the Judge that its crane, which was installed in 1927 or 1928, was exempt from the requirements of the cited standard by virtue of 29 C.F.R. 1910.179(b)(2), which Respondent would read to exempt cranes installed prior to August 31, 1971 from compliance with all of the requirements of 1910.179. Section 1910.179(b)(2), however, speaks in terms of "design specifications", and it is clear that the standard here at issue cannot in any sense be considered a "design specification". Thus, 1910.179(b)(2) has no effect on the disposition of this alleged violation.

[*5]

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We reverse. Even if we were to assume that Complainant has the burden of establishing the existence of a hazard in order to prove a violation of the cited standard n4 and regardless of the alleged normal efficacy of "plugging", the record shows that the hydraulic brake was sometimes used to stop the crane more quickly when the crane was used under extreme conditions, and that the crane could not have been stopped at all by "plugging" in the event of a power failure. Furthermore, the record shows that Respondent's employees sometimes worked in the area underneath the crane, and were exposed to the possibility of injury should the crane operator be unable to effectively and rapidly stop the crane. Employee access to a zone of danger was thus established see Gilles & Cotting.

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n4 See Lee Way Motor Freight, Inc. v. OSHRC, 511 F.2d 864 (10th Cir. 1975).

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Respondent's argument that the brake was only inoperative during the time necessary [*6] to repair the crane, and that the standard should not be read to require the brake to be in operating condition while it is dismantled for necessary repairs is inapposite. The violation occurred, not because the brake was dismantled, but because normal operation of the crane was resumed prior to the time the brake was again operational. n5

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n5 We note that the citation herein may have been more properly issued under the standard at 29 C.F.R. 1910.179(1)(3)(i) stating:

"Any unsafe conditions . . . shall be corrected before operation of the crane is resumed."

The applicability of the cited standard was not, however, raised and we do not reach that issue.

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In determining an appropriate penalty, we note that the gravity of the violation is low. The crane was operated for only a short time with the hydraulic brake disconnected. Furthermore, an alternative means of stopping the crane, which was effective under most conditions, existed and was used. It also appears that Respondent acted in good faith. Under the circumstances, [*7] we conclude that a penalty should not be assessed.

ALLEGED VIOLATION OF 1910.179(d)(3) n6

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n6 The standard states:

"(3) Toeboards and handrails for footwalks. Toeboards and handrails shall be in compliance with section 1910.23 of this part."

Section 1910.23(5)(iv) states:

"The mounting of handrails shall be such that the complete structure is capable of withstanding a load of at least 200 pounds applied in any direction at any point on the rail."

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The railing on the overhead walkway proximate to the crane cab had to be cut to facilitate the removal of the malfunctioning motor during the repair processes. A gap of four to six inches remained at the time of the inspection. The only employees who would have had reason to be on the walkway were maintenance personnel working on the engine repair project and the crane operator. The operator, as part of his duties while the crane is in use, is required to be in the area where the gap existed approximately once per week in order to lubricate certain gears.

The [*8] Judge found, inter alia, that there was no violation because Complainant failed to prove that any employees except maintenance workers would be in the area. Complainant contends that the Judge's finding that maintenance workers would be in the area is sufficient to establish employee exposure. He also points out that the crane operator periodically used the walkway to lubricate gears.

We conclude that Complainant has failed to prove that Respondent's employees had access to any zone of danger which existed as a result of the gap in the railing. n7 Concerning the maintenance employees, the record shows that it was necessary for them to remove part of the railing in order to remove and replace the engine. There is no evidence that they were in the vicinity of the gap any longer than necessary to perform this work. Under these circumstances, Respondent did not violate the standard with respect to these employees. Warnel Corp., 76 OSAHRC 41/C5, BNA 4 OSHC 1034, CCH OSHD para. 20.576 (1976); Universal Sheet Metal Corp., 9 OSAHRC 742, BNA 2 OSHC 1061, CCH OSHD para. 18,163 (1974).

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n7 We also note that it is questionable whether there was noncompliance with the standard. Clearly, a person cannot fall through a space four to six inches wide. There was conflicting evidence on the question of whether the part of the railing which remained could withstand a force of 200 pounds. Although the Judge made no finding of fact on this point, he indicated that he found Complainant's evidence unpersuasive. Because we dispose of the alleged violation on other grounds, we need not resolve this issue. We also need not consider whether Respondent's exemption argument (see n.3) would otherwise apply to this alleged violation.

[*9]

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As to the crane operator, the record shows that he was only required to be on the walkway in the vicinity of the gap in the railing about once a week. As the repair work which necessitated the removal of part of the railing had only been in progress for approximately one day and would soon be completed, it is as likely as not that the railing would have been repaired before the crane operator had occassion to be in the zone of danger. Accordingly, it is not reasonably predictable that the crane operator would have been exposed to the zone of danger, and Respondent did not violate the standard with respect to him. See Gilles & Cotting,

Accordingly, the citation for violation of 29 C.F.R. 1910.179(1)(3)(ii) is affirmed. No penalty is assessed. The citation for violation of 29 C.F.R. 1910.179(d)(3) is vacated.

It is so ORDERED.

CONCURBY: CLEARY; MORAN (In Part)

CONCUR:

CLEARY, Commissioner, CONCURRING:

I agree with the lead opinion's disposition of the alleged violation of 29 CFR § 1910.179(l)(3)(ii), and I concur in the disposition of the alleged violation of 29 CFR § 1910.179(d)(3) for different reasons.

Concerning [*10] section 1910.179(d)(3), which references to section 1910.23 there was a conflict in testimony between that of the compliance officer and respondent's witness. The compliance officer testified that he "wiggled" the handrail in the vicinity of a gap and that the handrail was "very flimsy." On the other hand, the respondent's witness testified that he weighed 232 pounds, that he hit the handrail quite hard, and that the handrail was firm. The Judge found that the compliance officer's testimony was not persuasive and impliedly he found the testimony of respondent's witness to be more persuasive. In light of this finding the Judge's decision on this item must be sustained because the compliance officer's testimony was crucial to the Secretary's burden of proof.

I do not wish to encourage implied findings of fact in a case of this sort. But sending the case back for additional findings would do what Mr. Justice Frankfurter once called, "marching the king's men up the hill and then marching them down again . . ." quoted in Davis, Administrative Law Treatise, § 16.07.

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Vacation of the 29 C.F.R. § 1910.179(d)(3) [*11] charge is warranted for the reasons assigned by both of my colleagues. They err, however, in reversing Judge Worcester's vacation of the 29 C.F.R. § 1910.179(l)(3)(ii) charge because Judge Worcester properly concluded in his decision, attached hereto as Appendix A, that the evidence did not establish that any of respondent's employees were exposed to a hazard resulting from the alleged violative condition. n8

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n8 Obviously, when there is no evidence that a particular condition constitutes an occupational hazard, there is no violation of the Act. Secretary v. Alfred S. Austin Construction Co., OSAHRC Docket No. 4809, April 28, 1976 (dissenting opinion).

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My colleagues affirm the section 1910.179(l)(3)(ii) allegation on the basis that "[e]mployee access to a zone of danger was . . . established." Their utilization of that nebulous test is not well-founded. For the reasons I expressed in my dissenting opinion in Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976, their abandonment [*12] of an "actual exposure" test in favor of an "access" test is inequitable and contrary to the remedial purposes of the Act. Since the evidence in this case is insufficient to establish that any of respondent's employees were actually exposed to a hazard because of the inoperability of the footbrake, the charge should be vacated.

The evidence clearly shows that the "plugging" procedure stopped the overhead crane faster than the application of the footbrake. "Plugging" is almost always used to stop the crane, and the operator seldom used the footbrake. Removal of the footbrake components was necessary in order to repair the engine. Unfortunately, after the engine was repaired, the crane was operated without the footbrake, but this was for less than a day.

The majority find the requisite employee endangerment because:

"[T]he record shows that the hydraulic brake was sometimes used to stop the crane more quickly when the crane was used under extreme conditions, and that the crane could not have been stopped at all by plugging in the event of a power failure. Furthermore, the record shows that Respondent's employees sometimes worked in the area underneath the crane, and [*13] were exposed to the possibility of injury should the crane operator be unable to effectively and rapidly stop the crane." (Emphasis added.)

Complainant, however, failed to prove that any "extreme conditions" existed, or were likely to occur, during the time the crane was operated without the footbrake. He also failed to present any evidence that there was any power failure during this time or even that one was likely. n9 Moreover, even in the unlikely event that one of these conditions occurred during the short time that the crane was operated without the footbrake, it is impossible to know whether respondent's employees would have been under the crane during such occurrences.

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n9 Of course, the crane itself could not operate if there was a power failure.

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One can conclude that there was any real employee endangerment in this case only by speculation. Employer liability, of course, must be based on the evidence - not mere speculation. Application of an "actual exposure" test would eliminate such speculation and [*14] properly exonerate this respondent. Secretary v. Gilles & Cotting, Inc., supra.

APPENDIX A

DECISION AND ORDER

Theodore J. Pethia, for the Secretary

Patrick W. Richey, for the Respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed by the respondent, Wheeling-Pittsburgh Steel Corporation, under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On April 1, 1975 a citation was issued alleging that the respondent had violated section 5(a)(2) of the Act. The case was heard in Pittsburgh, Pennsylvania on June 23, 1975.

THE FACTS

On March 27, 1975, as the result of a complaint from an unidentified source, the Secretary's compliance officer, John Oliver, accompanied by the respondent's safety director, Frederick B. Rine, and Edward Skowronsky representing the employees, proceeded to the area of No. 72 crane in the 45-inch blooming mill. The unidentified employee who filed the complaint n1 listed the alleged deficiencies in this crane:

1. Improper wiring of controls.

2. Bent shaft on trolley that [*15] runs hoist.

3. Bearings worn out and wrong couplings.

4. Two fires on crane on March 16.

5. He had been told that about 2 weeks earlier millwrights said that this crane was unsafe but that when representatives of the company and the union looked at it they said it was safe and that the reports of inspection would show that this conclusion was erroneous.

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n1 Exhibit R-1

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Oliver testified at the hearing. He said that he examined the monthly maintenance records but if they supported any of the 5 allegations of the complaining employee he did not mention it. He said that there was nothing irregular found, so he recommended that 5 other alleged violations unrelated to the complaint be issued.

THE ISSUES

The respondent did not contest item 4 and the penalty of $30 so that only the following alleged violations are in issue:

Item 1	29 CFR Section	Failure to maintain adjustments on
	1910.179(l)(3)(ii)	such crane components as all func-
		tional operating mechanisms, limit
		switches, control systems, brakes,
		and power plants, to assure correct
		functioning: on #72 35-ton Morgan
		crane at 45" slab mill at south end
		of building.

Item 2	29 CFR Section	Failure to provide for daily visual
	1910.179(j)(2)(v)	inspection and monthly inspection
		with signed report for rope slings,
		including end connections, for exces-
		sive wear, broken wires, stretch,
		kinking, or twisting: on #72 35-ton
		Morgan crane at 45" slab mill in
		south end of building.

Item 3	29 CFR Section	Failure to store tools, oil cans,
	1910.179(o)(2)(ii)	waste, extra fuses, and other neces-
		sary articles in the tool box and
		prohibit them from lying loose in or
		about the cab: on #72 35-ton Morgan
		crane at 45" slab mill in south end
		of building.

Item 5	29 CFR Section	Failure to provide toeboards and
	1910.179(d)(3)	handrails for footwalks in compli-
		ance with section 1910.23 of this
		part on #72 35-ton Morgan crane at
		45" slab mill in south end of build-
		ing.

[*16]

FINDINGS OF FACT

Passing over Item No. 1 for the moment, it was revealed n2 that Oliver did not ask for the records of monthly inspection until he and the rest of the inspection party had arrived at the crane. He admitted that he did not know whether the records existed or not. The respondent's motion at trial to vacate so much of Item No. 2 as pertains to the allegation that daily inspection of cables was not performed was granted.

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n2 Tr. 71

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This entire citation was based upon Oliver's casual observation as he descended from the crane that there were two wire rope slings hanging near the stairs. They were not being used nor did Oliver ask if they were expected to be used. As the respondent quite correctly noted in its brief, Item No. 2 is based entirely upon uncorroborated hearsay which is the sole basis for the conclusion of the compliance officer that no records were kept. The Secretary has not sustained the burden of proof of a violation as alleged in Item No. 2.

The citation for violation of section [*17] 1910.179(o)(2)(ii) for alleged failure to prevent employer from littering the crane cab floor with tools as alleged in Item 3 was vacated at trial because there were no tools on the floor of the cab. They were on the bridge some distance from the cab. Moreover, maintenance work on the crane was still incomplete at the time so there was a reason for them to be where they were. Review of the record as a whole fully supports the granting of respondent's motion to vacate this item.

In Item No. 1 it was alleged that there was a violation of section 179(l)(3)(ii) because of failure to make sure that brakes on No. 72 crane were operable while it was in use. There is not even a scintilla of evidence to sustain this allegation. The motor on this crane had burned out between 2:00 p.m. and 3:00 p.m. the previous day. n3 The compliance officer Oliver had been told that this crane was inoperable because it was being repaired. n4 In order to replace the burned out motor on No. 72 crane it was necessary to remove the railing and dismantle the brake. n5 Oliver did not know this. He made no effort to ascertain what steps were involved in changing motors. n6 Nevertheless, he asked the employer [*18] representative to have the crane operator, Borsch, who was a witness for the Secretary at the hearing, to move the crane so he could see how the hydraulic brake worked. n7 This caused the brake cylinder to come apart. n8 However, even with the hydraulic brake inoperable the crane could still be stopped effectively, even with a 15 ton load, by reversing the motor. According to the Secretary's witness Borsch, the crane operator, this is the method used 95% of the time. n9

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n3 Tr. 181

n4 Tr. 59-60, 180-181

n5 Tr. 182-183

n6 Tr. 60

n7 Tr. 52-53, 170

n8 Tr. 186-187

n9 Tr. 136A, 144-150, 155

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Borsch has had 26 years of service with the respondent, half of that time as an electrician (motor inspector), and 7 years as a crane operator. n10 He said that when he heard the compliance officer ask that the brake be tested n11 he told Oliver that the crane was in safe operating condition except for the foot brake. n12 He had been told by the electricians before he started to work that the foot brake was inoperable. n13 Even [*19] though he had told Oliver that n14 the foot brake was inoperable Oliver still expressed a desire to have the brakes tested while the crane was in motion. n15 The obvious and predictable result, as Oliver knew from what he had been told, was that the foot brake did not stop the crane. The maintenance work on the crane was completed a short time later. n16

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n10 Tr. 125

n11 Tr. 128

n12 Tr. 136

n13 Tr. 136

n14 Tr. 129

n15 Tr. 170, 183

n16 Tr. 183

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When all of the above-mentioned testimony appearing in the record is considered it is quite clear that the Secretary has merely presumed that the dismantled brake created a hazard to respondent's employees.

In the case of Mackowik v. Kansas City, St. J. & C.B.R. Co., 94 S.W. 256, 262 (1906), it was said that:

"Presumptions," as happily stated by a scholarly counselor, ore tenus, in another case, "may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts."

Upon consideration of the record as a whole, not [*20] even a presumption arises that the respondent failed to properly maintain No. 72 crane as alleged in Item No. 1 of the citation.

The break in the railing referred to in Item No. 5 of the citation could have occurred during removal of the defective electric motor so that a replacement could be installed. There is no evidence upon which to conclude that any employee, other than maintenance men who might have to hook onto the crane, would be in the area. n17 The "wiggling" method relied upon by Oliver n18 as a basis for his assertion that the railing was inadequate because it would not withstand 200 pounds pressure is not persuasive. Additionally, although the citation referred to failure to provide a handrail, the record shows that the handrail was not missing at the time of inspection. It was just broken. n19 Oliver said that he was told that this had happened in the course of the motor change which had taken place before he arrived. The employee representative who was present agreed that this could have been the cause of the break. n20 The Secretary has not sustained the burden of proof that there was a failure to provide a protective railing as alleged in Item No. 5.

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n17 Tr. 204

n18 Tr. 63

n19 Tr. 63, Exhibit C-4

n20 Tr. 112-113

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CONCLUSIONS OF LAW

The complainant has not sustained the burden of proof that the respondent violated sections 179(l)(3)(ii), 179(j)(2)(v), 179(o)(2)(ii) and 179(d)(3) of Part 1910, Title 29, Code of Federal Regulations as alleged in Items No. 1, 2, 3 and 5 of the citation dated April 1, 1975. Having so concluded I do not reach the question of the applicability of 29 CFR 1910.179 to crane No. 72.

It is therefore hereby ORDERED that Items 1, 2, 3 and 5 of the citation and the total proposed penalties of $185.00 be vacated.

BEN D. WORCESTER, Judge, OSAHRC