PARK CONSTRUCTION COMPANY

OSHRC Docket No. 2044

Occupational Safety and Health Review Commission

April 24, 1975

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A decision of Review Commission Judge Vernon Riehl, dated August 22, 1973, is before the Commission for review pursuant to 29 U.S.C. §   661(i).   That decision held that the respondent violated 29 U.S.C. §   654(a)(2) by its failure to comply with an occupational safety standard which is published as 29 C.F.R. §   1926.550(b)(2).   The Judge assessed a penalty of $500.00.   We affirm the Judge's decision as hereafter modified.

The above-cited standard appears under a subtitle designation of "Crawler, locomotive, and truck cranes," and provides that "[a]ll crawler . . . cranes in use shall meet the applicable requirements for . . . maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive, and Truck Cranes." n1 The respondent was charged with failing to comply with this standard by permitting "[l]ubricants to be applied to a [crawler] crane while the crane was in operation." Sections 5-2.3.4(b) and 5-2.3.2-a.2 through a.5, American National Standards Institute (ANSI) standard B30.5-1968, specify in substance that cranes shall be inoperative while being [*2]   lubricated "unless equipped for automatic lubrication."

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n1 Emphasis added.

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At the time of the alleged violation, the respondent's crane was being used in an excavation capacity.   Since sections 1 and 5-0.1, ANSI standard 30.5-1968, indicate that the provisions therein apply only to machines used as lifting cranes and not to those performing excavating work, review was directed on the question of whether the respondent's activity at the time of the alleged violation was governed by the standard under which it was cited.

  The complainant contends that 29 C.F.R. §   1926.550(b)(2) does not adopt the limited scope of the ANSI standard and makes the provisions thereof applicable to all cranes without any limitation based on their use.   We reject this contention because the Secretary's standard clearly indicates that crane users are only required to comply with "the applicable requirements" of the ANSI standard.   In effect, the Secretary asks us to treat this limiting phrase as if it were meaningless.   Such a result [*3]   would be illogical.   Furthermore, an almost identical standard was promulgated to cover excavating operations in apparent recognition that the standard here in issue did not apply thereto.

29 C.F.R. §   1926.602(b)(3) appears under a subtitle of "Excavating and other equipment" and provides that:

The safety requirements, ratios, or limitations applicable to machines . . . covered in Power Crane and Shovel Associations [PCSA] Standards No. 1 and 2 of 1968, and No. 3 of 1969, shall be complied with, and shall apply to cranes . . . .

Section 8.2.2.5, PCSA standard No. 1, entitled Mobile Power Crane and Excavator Standards, provides the following:

All machinery should be stopped while lubricating except in cases where the lubricating system is designed for safe application while the machinery is in motion.

Comparing the content of 29 C.F.R. §   1926.550(b)(2) with that of 29 C.F.R. §   1926.602(b)(3) including the standards which they incorporate by reference, promulgation of the latter seems unnecessary if the former was intended to cover cranes used in excavating operations.   However, since the two standards establish requirements which are virtually idential except for the type   [*4]   of operations to which they apply, we are confronted with the question of whether we can affirm a violation of the Act for a failure to comply with the standard which applies to excavating work.

Rule 15(b) of the Federal Rules of Civil Procedure provides in pertinent part that:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised   in the pleadings.   Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment . . .

The purpose of this rule is to promote decisions on the merits of issues and not upon the pleadings.   See Conley v. Gibson, 355 U.S. 41, 48 (1957); National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257 (D.C. Cir. 1973); Iodice v. Calabrese, 345 F. Supp. 248, 259 (S.D.N.Y. 1972); Secretary v. Brisk Waterproofing Company, Inc., 3 OSAHRC 1132 (1973).

The charge against the respondent resulted from a fatal injury to one of its employees which occurred while [*5]   the employee was lubricating the suspension system of a crawler crane. Although this portion of the crane was inoperational at the time of the accident, the revolving superstructure was being used for excavation. The employee was struck by the rear portion of the cab when rotated in performing this work.

Considering the above facts and the entire record, we hold that the respondent will not be prejudiced by affirming a violation of the Act for a failure to comply with 29 C.F.R. §   1926.602(b)(3).   This modification of the Judge's decision does not change the factual allegations in the citation or the legal basis of the complainant's case, but merely sets out a different section of the governing regulatons.   See Secretary v. J. L. Mabry Grading, Inc., 9 OSAHRC 98, 108, 112 (1974). Additionally, the two standards here at issue prohibit essentially the same conduct.   The difference betweent the exception contained in the ANSI standard and the one provided in the PCSA standard is insignificant.   Even if no exception was contained in the standard cited in the citation, the respondent was entitled to defend on the basis that the crane was designed with features which permitted safe [*6]   lubrication of the suspension system while the superstructure was in operation.   See Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974). However, the evidence shows that the respondent knew that the suspension system could not be safely lubricated when the superstructure was in operation as this was contrary to its general policy.   Unfortunately, the policy was not enforced as a matter of practice.

  Accordingly, the Judge's decision is modified to show that the respondent violated 29 U.S.C. §   654(a)(2) by not complying with 29 C.F.R. §   1926.602(b)(3) in lieu of 29 C.F.R. §   1926.550(b)(2).   In all other pertinent respects, the Judge's decision is affirmed.  

CONCURBY: CLEARY

CONCUR:

  CLEARY, COMMISSIONER, concurring: I concur in the Chairman's disposition of this case.   The essential issue is factual and involves the lubrication of the lower portion of a crawler crane while the top portion or superstructure was in operation was moving.   This issue was adequately noticed.   This conduct is proscribed under both 29 CFR § §   1926.550(b)(2) and 602(b)(3) in the private standards separately incorporated by reference in these provisions.

In addition, the two private standards [*7]   clearly establish that lubrication under the circumstances of the case is a "recognized hazard" in the construction industry.   Also, it does not require post hoc reasoning to conclude that the hazard will likely cause death or serious physical harm to an employee.   This being so, even if neither regulatory provisions were applied, it seems to me that the Secretary has proved a case under section 5(a)(1) of the Act.  

DISSENTBY: VAN NAMEE

DISSENT:

  VAN NAMEE, COMMISSIONER, dissenting: I agree that 29 C.F.R. 1926.550(b)(2) does not apply because Respondent's equipment was being used for excavation work such that 29 C.F.R. 1926.602(b)(3) is the only possible applicable standard.   I do not agree, however, that the issues for trial are the same under both standards.

As indicated by the lead opinion the ANSI B 30.5-1968 standard incorporated by the cited standard requires that cranes be inoperative while being lubricated "unless equipped for automatic lubrication." The Power Crane and Shovel Association (PCSA) standard which might apply under section 602(b)(3) is quite different.   In pertinent part it is as follows:

All machinery should be stopped while lubricating except in cases where the lubricating [*8]   system is designed for safe application while the machinery is in motion.

  The distinction is that the PCSA standard permits lubrication of the crane while it is in motion so long as the crane's lubrication system is designed for safe application.   Obviously, the crane's lubrication system may be other than an automatic system.

The distinction is critical in this case.   Respondent attempted to defend against the cited standard on the basis of crane motion.   Had it been given notice that it could defend by showing that the crane's lubrication system was designed for the safe application of lubricants during motion, then it could have shown that it was in compliance.   But Respondent has not been given an opportunity to present the defense, any my colleagues therefore err by amending the citation and affirming it as amended.

I would also note that the PCSA standard is advisory rather than mandatory since it uses the terms "should be" as contrasted with "shall be." Accordingly, the question arises as to whether any violation can be found under section 602(b)(3), or is the general duty clause (29 U.S.C. 654(a)) appropriate.   If the general duty clause is appropriate, I do [*9]   not believe we could modify and affirm the citation on this record.   Respondent has not been given any opportunity to present defenses available under the clause.   See generally: National Realty & Const. Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir., 1973); Brennan v. OSHRC (Vy Lactos Laboratories, Inc.) 494 F.2d 460 (8th Cir., 1974); Brennan v. OSHRC (Hanovia Lamp Div., Canrad Precision Industries) 502 F.2d 946 (3d Cir., 1974); Brennan v. OSHRC (Republic Creosoting Co.) 501 F.2d 1196 (7th Cir., 1974).

[The Judge's decision referred to herein follows]

RIEHL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.   The Citation alleges that an inspection of a workplace under the operation, and control of the Respondent revealed an existence of workplace conditions that violate Section 5(a)(2) for the reason that these conditions fail to comply with certain Occupational   Safety and Health Standards promulgated [*10]   by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on December 29, 1972, alleges that the violation results from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register.   A description of the alleged violation contained in said Citation states:

CITATION FOR SERIOUS VIOLATION

Standard or Regulation Allegedly Violated -- Description of Alleged Violation -- Date on Which Alleged Violation Must Be Corrected

1926.550(b)(2); ANSI B30.5 -- 1968 Section 5-2.34(b) Reference from Title 29 CFR Part 1926 (formerly Title 29 CFR Part 1518), as adopted by 29 CFR Section 1910.12. -- Lubricants were applied to crane while crane was in operation -- Immediately Upon Receipt of This Citation

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter of December 29, 1972, by the Occupational Safety and Health Administration, that the U.S. Department of Labor proposed to assess a penalty for the violation alleged in the amount of $500 (Complaint; Answer; Stipulation of Facts).

On January 11, 1973, pursuant to Section 10(c) of the Act, Respondent filed with the [*11]   Secretary a notification to contest the Citation.   The notification of contest was thereupon transmitted to the Occupational Safety and Health Review Commission (Complainant's Exhibit 7).

The case came on for hearing April 13, 1973, in Saint Paul, Minnesota.

Respondent does not contest the amount of the proposed penalty merely Respondent's liability for the alleged violation (Stipulation of Facts).

The parties stipulated that jurisdiction of the action was conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Occupational Safety and Health Act.

(a) Respondent, Park Construction Company, is and at all times hereinafter mentioned was a corporation with an office and place of business at 7900 Beech Street, N.E., Minneapolis,   Hennepin County, Minnesota, and it is and at all times hereinafter mentioned, was engaged in the business of excavation and grading.

(b) Respondent, at all times hereinafter mentioned had a workplace at Beam Street and White Bear Avenue, Maplewood, Clearwater County, Minnesota, where it was engaged in excavation and grading for a shopping center.

(c) Respondent was at all times engaged in a business affecting   [*12]   commerce in that Respondent used goods which moved in interstate commerce.

(d) Respondent employs approximately 17 persons in his business at the aforesaid workplace.

(e) Citation was issued on December 29, 1972, to Respondent by Complainant.

Respondent asserted in his Answer three affirmative defenses, namely:

1.   The penalties involved are criminal fines and that the standard at issue does not provide an adequate notice of criminal conduct to be valid under the Due Process clause of the Fifth Amendment of the United States Constitution.   This defense is not valid for the reason that the penalties at issue are not criminal fines and this forum lacks the authority to challenge the constitutionality of the penalty provisions of the statute.

2.   Respondent challenges the standard as being impractical and not related to safety and health and thus beyond the authority of the Secretary under Section 6.   Again we feel this defense is not valid for the reason that we cannot in this forum challenge the wisdom of the Secretary in promulgating the standards involved.   There is a remedy for the Respondent if he feels the standard is impracticable or not suitable to his particular industry [*13]   and, that is to seek for a variance before the Secretary as provided by law.   We cannot decide the question of a variance here.

3.   Respondent also challenges the constitutionality of the standard as the taking of property without just compensation.   Again we cannot decide this matter in this forum.

November 30, 1972, was the date of the inspection by the Compliance Officer of OSHA.   The accident in which the employee died occurred on the 28th day of November, 1972.

  Paragraph IV(a) of the Complaint was amended at the beginning of the hearing to indicate that the accident and condition occurred on November 28, 1972.   There is no prejudice to the Respondent in this amendment at this late date because he had full possession of all the facts.   There was no question in anyone's mind as to the exact date of the accident from which the Citation arose.

Respondent moved to dismiss the Complaint at the time of the amendment and this Motion was overruled.

Respondent's employee, Mr. John Daily, was employed as an oiler on a Link-Belt brand crawler crane with dragline attachment at Respondent's workplace in Maplewood, Minnesota.   His job was to grease and maintain the crane and   [*14]   assist the operator of the equipment.   The operator of the equipment was Mr. Dale Good.

Daily had been employed in this capacity at this worksite since approximately April 1972, and was permanently assigned to the machine operated by Good.   This equipment is depicted in Complainant's Exhibits 1-5.

The record shows that prior to the accident occurring on November 28, 1972, Daily was known to have lubricated the lower portion of the crawler crane while the top portion or superstructure was in operation and moving.   This was observed, by Mr. Robert Wallin, the superintendent, occurring at the Maplewood worksite. Wallin testified that he observed Daily greasing the equipment while the machine was running.   The superstructure was moving while the bottom portion was stationary and being lubricated. Wallin, on one occasion spoke to Daily about the dangers involved in being under the machine while it was in motion.   This incident occurred approximately one month prior to the accident of November 28, 1972.   The equipment involved in this practice is shown in Complainant's Exhibits 1-5.

Wallin testified that he had also observed other oilers, employed by Respondent, grease the bottom of [*15]   the cranes while the upper portion, or superstructure was moving.   This testimony of course shows that the Respondent had prior knowledge of the practice of employees greasing the bottom of cranes while the upper portion or superstructure was moving.   The question that must be decided herein is whether or not the oiling of the bottom of the cranes, which is stationary, while the upper portion, or superstructure, was moving is a violation of the standard.

We feel that it is.

A witness, Mr. John Wrobleski, Jr., an employee of another firm engaged at the Maplewood worksite, testified that he had been working at the site since August 19, 1972; that prior to November 28, 1972, he had observed Daily working on the crane depicted in Complainant's Exhibits 1-5, and that he observed lubrication being performed while the machine was in operation; that approximately on six occasions he observed the superstructure in operation while lubrication was being performed.

Good, the operator of the crane on which Daily worked, also testified that Daily had been an oiler on the machine since August 1972, and that it was a common practice to lubricate the "crawler rollers" (see Complainant's [*16]   Exhibit 2), although the crane or superstructure would still be operating.

Both Good and Wrobleski testified to an accident occurring on November 28, 1972, in which John Daily, an oiler, employed by Respondent, was seriously injured.

Wrobleski's testimony was that on November 28, 1972, he was employed in Maplewood Minnesota, in the vicinity where employees of the Park Construction Company were engaged.   At approximately 1:05 p.m., Wrobleski, in the company of a co-employee, Mr. Bryce Ernst, observed Daily lying at the bottom of a grading. At this time Wrobleski was approximately 150 to 200 yards away from Daily and he observed the Link-Belt crane moving its drag line bucket to where Daily was lying. Thereupon the operator was signaled to stop.   Immediately thereafter Wrobleski spoke to Daily in the presence of Ernst.   Daily stated, "I was greasing the track and got caught." Then Wrobleski left to call an ambulance and when he returned Daily was more incoherent and lost consciousness prior to the police arriving.   Wrobleski testified that he observed that the end of the track of the crane was one and a half yards away from the edge of the bank (grading) and that he observed [*17]   a trail of blood from the edge of the bank to where Daily was lying.

  Good testified that he was the operator of the crawler crane upon which Daily was the oiler. Good testified that he had observed Daily at 12:45 p.m., upon returning from lunch and did not observe him again until he was signaled to stop.   From this testimony it is apparent therefore that Daily had been working from approximately 12:45 p.m., the time when Good returned from lunch until sometime prior to 1:05 p.m., when he was observed lying on the ground throwing dirt into the air to attract attention and, that during this time Good had been operating the machine which included moving the superstructure. After Good stopped the machine he went to where Daily was lying. Daily stated in the presence of Good, "I got caught between the counterweight and the track." This of course is certainly evidence that the moving superstructure of the crane struck Daily while he was in the area.   Daily then stated, "I hurt real bad." Then Daily complained that he could not breathe.

Wrobleski was not involved in the accident and he was not employed by the Respondent, therefore, he is an important independent witness as [*18]   to the facts.   Good is however an employee of the Respondent and tells approximately the same story.   He does not however remember the statement, "I was greasing the track and got caught." This is understandable due to the excitement of the moment and in no way detracts from the strength of Wrobleski's statement.   We had an opportunity to observe Wrobleski thoroughly and feel that he is telling a truthful accurate account of exactly what happened at the time.

Wrobleski left to call an ambulance and when he returned Daily's condition had worsened.   Good had stated that after Daily made his statement he complained that he couldn't breathe.   Therefore, if Good's recollection is accurate, the statement was probably made subsequent to the statement made to Wrobleski.

Good stated that he observed a grease gun on top of the track as depicted by a "X" as in Complainant's Exhibit 3.   This grease gun is like the one used by Daily in the area.

The evidence establishes (even leaving out the testimony of Wrobleski and Good as to statements made) that Daily had been on the job from 12:45 p.m., and was injured sometime prior to 1:05 p.m., that there was a trail of blood from the crane to the   [*19]    point where he was found lying on the ground.   The reasonable inference is that he left the identical grease gun there at the crane after being struck. There being no evidence of any other grease gun in the vicinity.   The facts standing alone, although circumstantial, are sufficient to show that Daily was injured from a moving superstructure while greasing it during a period from 12:45 p.m., to sometime prior to 1:05 p.m.

It is clear from the testimony of the facts, not considering the statement made by Daily, that he had been lubricating the track of the equipment as depicted in Complainant's Exhibit 1-5, while the superstructure was moving and that he got caught between the counterweight and the track of the equipment and was injured (See Complainant's Exhibit 3).

Having stated our belief that the substantial evidence establishes that Daily was struck by a moving superstructure while oiling the crawler crane, we now turn to whether or not Daily's statements made to Wrobleski are competent evidence.   Respondent's contention is that statements made by Daily are incompetent hearsay.   There is no question whatsoever but that the statements are relevant and material insofar [*20]   as establishing whether or not there is a violation of the standard.

We have carefully considered Respondent's contention that statements made by Daily were incompetent hearsay.   We feel Respondent is in error in this regard and that the statements are admissible.   Daily's statement, "I was greasing the track and got caught," coupled with the known facts that he was on the job at 12:45 when Good began operating the crane after lunch, definitely establish that the accident happened sometime between 12:45 p.m., and 1:05 p.m., when Wrobleski first observed Daily lying on the ground throwing clots of dirt into the air to attract attention.   The statements by Daily also establish that he was injured while lubricating a moving crawler crane in violation of the standard involved.

It is not necessary, as proof, to have a sound movie picture complete with all conversation to establish that Daily was injured while oiling the crane. The substantial evidence in the case, coupled with all reasonable inferences to be deduced from evidentiary of facts, establishes that he was so injured.

  Substantial evidence indicates that Daily made a spontaneous declaration and that it was made with [*21]   no apparent motive for misstatement.   Our assurance of the reliability of the statement would be the present state of mind at the time he made it.   ( Hall v. American Friends Service Committee, Inc., 74 Wash. 2d 467, 445 P.2d 616 (1968)).

Daily's statement was made at a time that he was in great pain and when he knew he was grievously and probably mortally wounded.   He was certainly "sincere" as he told his rescuers of his pain and the accident that caused the pain.   Had he lived, it is certain that when called to testify he would have testified as to his vivid impressions, memory, and state of mind at the time of the accident.   Under the circumstances prevailing the deceased worker Daily was in great pain, and had no motive for misstatement.   There was a "circumstantial probability" of trustworthiness of his utterance.   This was certainly an "excited utterance." This being an excited utterance spontaneously made, it is an exception to the hearsay rule.   (McCormick on Evidence, Section 297, P. 704 et seq. ) His statement on being reached by Wrobleski and questioned by him was a spontaneous reaction made under intense pain and suffering and not a result of reflective thought.   [*22]   Great excitement was created and the deceased said what was uppermost in his mind.   There is no reason to believe that he would change his statement when testifying later under oath, had he lived.   Daily's statement was a res gestae statement and therefore an exception to the hearsay rule.   The fact that Daily was so badly crushed and that he shortly subsequently thereafter died was an evant sufficiently startling to render normal reflective thought processes inoperative. His statement was certainly a spontaneous reaction to the occurrence.   We may give Daily's statements special reliability because of the excitement furnished by the accident which suspended his powers of reflection and fabrication.   We must presume that Daily was telling the truth and making statements that he thought were correct under the circumstances prevailing.

A leading case on the subject is Truck Insurance Exchange v. Michling, 364 S.W. 2d, 172 (Tex. 1963)). In this case the deceased had returned home, pale, batting his eyes and stumbling.   He reported to his wife that he had struck his head when   the bulldozer he had been driving had slipped off a hill.   The statement itself was held inadmissible [*23]   as there was no evidence of the exciting event other than the asserting of the statement itself.   In the instant case we have complete evidence of an exciting event in that Daily had been observed working at the point where he was injured just prior to the accident, there was a trail of blood leading from the tractor to the point where he was found, a grease gun was found at the crawler crane where he had been, and there is also other evidence in the instant case establishing that the events occurred as recited by Daily when questioned as to what happened.

Daily's statement also may be considered, in addition to being a spontaneous declaration or res gestae statement, a dying declaration.

Prior to losing consciousness Daily made accurate statements as to how the accident happened.   Daily was undoubtedly conscious that he was dying.   His statement, "I hurt real bad," followed with his shortly thereafter losing consciousness indicates that Daily was in terrible agony.   He knew the massive power and ability to cripple and kill of the moving parts of the roller crane.

The Standard 1926.550(b)(2) reads as follows:

All crawler, truck, or locomotive cranes in use shall meet the applicable [*24]   requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.

ANSI B30.5-1968 Section 5-2.3 4-b. reads as follows:

5-2.3 4 Lubrication

b.   Machinery shall be stationary while lubricants are being applied and protection provided as called for in 5-2.3.2-a.2 through a.5 unless equipped for automatic lubrication.

5-2.3.2-a.2 through a.5 reads:

5-2.3.2 Maintenance Procedure

a.   Before adjustments and repairs are started on a crane the following precautions shall be taken as applicable:

1.   Crane placed where it will cause the least interference with other equipment or operations in the area.

  2.   All controls at the off position.

3.   Starting means rendered inoperative. 4.   Warning or "out of order" signs placed on the crane. For locomotive cranes, blue flag protection shall be employed.

5.   Power plant stopped or disconnected at take-off.

The substantial evidence of record establishes that prior to and on November 28, 1972, Respondent's oiler lubricated the crawler portion of the crane, while the superstructure and derrick portions were in operation.   [*25]  

Section 5-2.3 4-b (Lubrication) provides that machinery shall be stationary while lubricants are being applied.   Section 5-2.3.2 provides that: all controls be at the off position; that "out of order" signs be placed on the crane; that the power plant be stopped or disconnected at take-off.

Respondent argues that the standard menas that "shutting off" means only the part that is being lubricated be inoperative and that the rest of the crane could be in operation.   This interpretation is erroneous.   The standard requires that the entire machine must be shut down. All parts of the machine must be inoperative and shut down in order to allow lubrication to the equipment involved in the instant case.

The standard is clear and to interpret it any other way would be to stretch it beyond all reasonable recognition.

Section 5-2.3.2-a.2 states that all controls are to be at the off position.   This means all controls of the crawler crane involved in this case.   It does not limit itself to the control leading to the party being lubricated.

Section 5-2.3.2-a.3 requires that the starting means be rendered inoperative. This clearly means starting the machine or equipment.

Section [*26]   5-2.3.2-a.4 provides that warning signs or "out of order" signs be placed on the crane. It would not make any sense to put an out of order sign on a crane with the superstructure, crane, or crawler in motion, and this sign requirement applies to the entire piece of crawler crane equipment.

In the instant case while oiling a stationary part the oiler was struck by a moving part and the facts speak for themselves.   He was not only injured but killed from this violation of the standard and the Respondent is guilty of a violation of the standard   on the day of the accident and at times prior to the accident on occasions when he permitted this practice, while the machinery was in motion, to exist.

Witness Dunlop testified as an expert that the proper method of performing lubrication on a crawling crane is to shut down the entire crawler crane.

Evidence of record is to the effect that Local 49, International Union of Operating Engineers, representing Respondent's employees, have a safety rule (rule 11) which prohibits working on or close to a machine when the engine is started or the equipment is moved.   (Complainant's Exhibit 8).   This rule states to us simply that the entire [*27]   piece of equipment be inoperative when lubrication is being performed.

Violation of Standard 1926.550(b)(2) is a Serious Violation within the meaning of Section 17(k).

Section 17(k) of the Act reads as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or 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.

The evidence is clear that the Respondent knew of the existence of the practice of oiling the crawler cranes while in operation prior to the accident.

Testimony of the deceased oiler, Daily, coupled with the total evidence in the case, indicates that the accident occurred while Daily was lubricating the rollers and was caught by the superstructure of the crane and crushed and later died.   The evidence is therefore substantial that serious injury or death could occur to any other person involved in [*28]   such an accident.

The standard involved states that if the Respondent knew of the existence of the practice which is a violation of the standard or with the exercise of reasonable diligence could have known of the existence of said practice, that he is then in violation.

The total testimony is in agreement that this is a common practice of the Respondent to permit and allow the lubrication   of the crawler crane while the superstructure is in motion.   Wallin, Respondent's Superintendent, testified that he has observed Daily and other oilers on several occasions lubricating the tracks while the superstructure was in motion.

The independent witness, Wrobleski, had also observed this practice by Park Construction Company employees at least six times prior to November 28, 1972.   Thus, it is very clear that Respondent knew of the existence of this practice prior to the accidental death of its employee, Daily.

In Brennan v. Standard Glass and Supply Company,

In is our view that substantial probability that death or serious physical injury could result,   [*29]   in conjunction with the knowledge requirement of section 17(k) and the possibility of an accident's occurrence, is all that is required for a violation to be considered serious.   The occurrence of an accident because of an existing hazard in violation of the Act need not be substantially probable in order for a violation to be serious, within the meaning of the Act.

See Brennan v. Crescent Wharf and Warehouse Company, Brennan v. Natkin and Company,

In this case the employee actually died and there is no doubt whatsoever in our mind that anyone else caught by this type crawler crane while lubricating will certainly receive the most severe injuries if not death from being so caught.

FINDINGS OF FACT

1.   Respondent, Park Construction Company, at all times herein, was a corporation having its principal office in Minneapolis, Minnesota (Answer; Stipulation of Facts).

2.   Respondent, at all times relevant, had a workplace at Beam and White Bear Avenue, Maplewood, Minnesota, where it is engaged in the business of excavating and grading for a shopping center (Complaint;   [*30]   Answer; Stipulation of Facts).

3.   Respondent, at all times involved in this case, was engaged in a business affecting commerce (Complaint; Answer; Stipulation of Facts).

  4.   Respondent was an employer employing approximately 17 employees in its aforesaid workplace (Stipulation of Facts).

5.   An investigation was conducted on November 30, 1972, of Respondent's workplace of an accident involving the death of an employee.

6.   Respondent was issued a Citation on December 29, 1972, for Serious Violation of Section 5(a)(2) of the Occupational Safety Act and Occupational Safety and Health Standard 1926.500(b)(2).   On the same day Respondent was also issued a Notification of Proposed Penalty for said violation; assessment was for a monetary penalty in the amount of $500 (Complaint; Answer; Stipulation of Facts).

7.   On January 11, 1973, Respondent duly filed a notification of intent to contest the issuance of the Citation (Stipulation of Facts).   Respondent's said Notice of Contest stated that the practice referred to in the Citation for Serious Violation had been abated under protest (Notice of Contest) (Complainant's Exhibit 7).

8.   Respondent by stipulation stated that [*31]   it did not contest the amount of the proposed penalty, merely Respondent's liability for the alleged violation (Stipulation of Facts; Answer).

9.   Complainant moved to amend the complaint to indicate that the alleged practice occurred on November 28, 1972, rather than November 30, 1972, and said Motion was granted.

10.   With regard to the violation of Standard 1926.550(b)(2), ANSI B30.5-1968, Section 5-2.3 4-b, the following evidence was adduced at the hearing:

(a) Respondent's employee, John Daily, was an oiler on a "Link-Belt" brand crawler-type crane with "dragline attachment" at Respondent's workplace. His job was to grease and maintain the crane and to assist the operator of the crane. He had been employed at this worksite since April 1972, and was permanently assigned to the crane as shown in Complainant's Exibits 1-5.

(b) Prior to November 28, 1972, Daily performed lubrication on the lower portion, or crawlers, of the crane while the upper portion, or superstructure, was in operation and moving.   These actions were observed by Wallin, Respondent's Superintendent; the equipment involved is shown in Complainant's Exhibits 1-5.   Other oilers lubricated under similar [*32]   circumstances.   Oiler, Daily, was observed by Wrobleski, an independent witness and an employee of another firm at the worksite, on approximately six occasions prior to November 28, 1972, engaged in lubricating the bottom portion of equipment depicted in Complainant's Exhibits 1-5, while the superstructure was in operation.

(c) On November 28, 1972, Daily was seriously injured (and subsequently died) by the crane upon which he worked.   As approximately 1:05 p.m., Daily was observed by Wrobleski and others lying on the ground near the crane. A trail of blood was observed leading from approximately the crawlers of the crane to where Daily was found.   When witness Wrobleski contacted Daily lying on the ground near the crawler crane Daily stated, "I was greasing the track and got caught." Subsequent to this Daily stated to witness Dale Good, "I got caught between the counterweight and the track." "I hurt real bad." Subsequent to this Daily complained that he could not breathe.   A grease gun used by Daily to perform lubrication was found on the top of the track of the crane, as depicted in Complainant's Exhibit 3.   Employee Good testified that between 12:45 p.m., and 1:05 p.m., he had [*33]   been engaged in moving the superstructure of the crane involved in Daily's accident.

(d) Witness Dunlop testified that it was his expert opinion that Standard 1926.550(b)(2); ANSI B30.5-1968, Section 5-2.3 4-b requires that prior to performing lubrication the entire crane must be shut down and made inoperative. Dunlop also testified that, from his experience in the construction industry, it was his opinion that the industry interprets ANSI Section 5-2.3 4-b to require that the entire equipment or crane be shut down before any lubrication is applied.

(e) Rules of Local 49, Union of Operating Engineers provides that no one is to be working on or close to the machine when the engine is started or the operator begins to move (Complainant's Exhibit 8).

11.   The expert opinion of witness Dunlop was that there is a possibility of an accident occurring when lubrication is performed on the rollers of the crawler portion of the crane, while the superstructure is in operation.   It was his opinion, that an accident would result in death or serious injury as the superstructure   is capable of crushing a man, and he knew personally of instances where it had done so in the past.

12.   [*34]   Respondent was aware that Daily had in the past performed lubrication while the superstructure was moving.   Superintendent Wallin had observed this occurring at the worksite. Witness Wrobleski had observed this practice of Respondent on at least six occasions prior to the accident.   The operator of the crane also testified that this was common practice.

CONCLUSIONS OF LAW

1.   Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

2.   At all times involved in this action, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

3.   At all times involved in this action, the Respondent had a workplace located at Beam Street and White Bear Avenue, Maplewood, Minnesota.

4.   On November 28, 1972, Respondent violation Section 5(a)(2) of the Act and 29 CFR 1926.550(b)(2); ANSI B30.5-1968, Section 5-2.3 4-b in that it permitted the practice whereby lubrication of crawler crane machinery was performed while machinery was in operation and not stationary.

5.   The violation as set forth in the preceeding paragraph constitutes a Serious Violation within [*35]   the meaning of Section 17(k) of the Act.

6.   A proposed penalty of $500 is appropriate within the meaning of Section 17(k) of the Act.

7.   Abatement period fixed in the Citation was not contested by Respondent and the condition complained of has been abated.

DECISION

It is therefore ORDERED that:

1.   The Citation for Serious Violation of Section 5(a)(2) of the Occupational Safety and Health Act and Standard 29 CFR 1926.550(b)(2) is hereby affirmed.

2.   The penalty in the amount of $500.00 for said violation is affirmed.