BETTEN PROCESSING CORPORATION

OSHRC Docket No. 2648

Occupational Safety and Health Review Commission

April 2, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On May 7, 1974, Judge George W. Otto issued his decision in this case, vacating the Secretary's citation for serious violation of section 5(a)(1) of the Act, the "general duty" clause. On June 6, 1974, the case was directed for review in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") on the issue of whether the Judge committed reversible error.

Respondent is engaged in the business of processing scrap iron and steel. As the result of a fatality which occurred at respondent's workplace an inspection was conducted following which a citation for violation of section 5(a)(1) of the Act was issued. n1 The citation alleged that respondent failed to furnish a place of employment free from recognized hazards in that it failed to require that the engine of an unattended crane be shut off. The facts precipitating the inspection and citation are as follows: A crane weighing between 30 and 40 tons, with a boom 60 feet long supporting a 4,300-pound magnet, was being operated at respondent's facility. In order [*2] to perform another of his job functions, paying respondent's laundry bill, the crane operator left the crane unattended with the motor running, the brakes set, and the master clutch disengaged. The engine was left running in order to avoid restarting in the cold weather. The magnet was left resting on a scrap pile approximately six feet in height. The crane operator testified that he left the magnet in this position because contact between the electrical magnet and the muddy ground could cause the magnet to short out. The fatal accident occurred when the magnet and boom rotated and crashed into the cab of one of respondent's trucks, killing the driver.

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n1 Section 5(a)(1) states:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

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Much testimony was adduced regarding the issue of whether the unattended idling crane constituted a "recognized [*3] hazard." The crane manufacturer's senior project engineer testified that no recommendation is made by the manufacturer regarding shutting off the crane. He asserted that the idling engine does not affect the swinging of the boom if the master clutch is disengaged, but added that it is safer "as a matter of degree" to shut off the engine. He stated that an idling engine can create vibration. The compliance safety and health officer stated that it is a "recognized hazard" to leave a piece of equipment such as respondent's crane unattended in that personnel who are unfamiliar with its operation may attempt to operate it.

An engineer who is an OSHA advisor considered the unattended crane with its motor running to be a "recognized hazard." However, in describing the experience indicating to him that the practice is hazardous, he stated that, on a previous occasion (not on this site) when a crane was left with its bucket raised, the bucket slipped and the resulting momentum caused rotation of the boom. He conceded that this could occur without the engine running. A safety specialist with the State of Wisconsin testified that in his opinion the accident was caused by a combination [*4] of factors -- the idling engine, the magnet resting on the scrap pile and the swing brake being ineffective. A consulting engineer opined that the magnet slipped off the scrap heap and caused the boom to rotate. He considered the idling engine irrelevant to the occurrence of the accident.

The testimony of these witnesses must be considered as it relates to the issue of whether an idling crane is a "recognized hazard" within the meaning of section 5(a)(1). The cause of the particular accident which occurred constitutes evidence that is relevant to the issue but not necessarily determinative of its resolution.

The Secretary relies heavily on American National Standards Institute (ANSI) B30.5-1968, entitled Crawler, Locomotive and Truck Cranes, as evidence that respondent's practice of allowing the crane to remain running is a "recognized hazard." It states at 5-3.1.3.f that:

f. before leaving his crane unattended, the operator shall: 5. stop the engine.

This private standard was promulgated by associations including those representing respondent's industry. According to its Foreward, it was intended, in part, as a "guide" to purchasers and users of the equipment [*5] covered by the standard. Another purpose was to serve as a guide to governmental authorities having jurisdiction over the subjects within the scope of the ANSI safety code. Clearly the Occupational Safety and Health Administration is such a governmental authority, and it has incorporated the aforementioned ANSI standard by reference into its construction standards for cranes. n2 However, it has not been adopted in the general industry standards applicable to respondent's industry -- iron and steel processing.

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n2 29 CFR 1926.550(b)(2).

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The Administrative Law Judge vacated the citation for violation of section 5(a)(1) of the Act. He ruled that ". . . there is nothing in the record to establish that a practice of running the motor in an unattended crane represented a hazard." With respect to the ANSI standard constituting evidence that an idling crane is a "recognized hazard" in respondent's industry, the Judge refused to consider the standard as such evidence, stating that to do so ". . . would bring in every phantom [*6] standard from whatever source for consideration in determining recognized hazards . . . ." It is clear that fear of a long parade of private standards for consideration under section 5(a)(1) influenced the Judge. He found that nothing in the record indicates that an unattended crane with the engine running is a "recognized hazard."

Under the "general" duty clause the Secretary must prove (1) that the employer failed to render its workplace "free" of a hazard which was (2) "recognized" and (3) "causing or likely to cause death or serious physical harm." National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C. Cir. 1973). See also American Smelting & Refining Co. v. O.S.H.R.C., 501 F.2d 504 (8th Cir. 1974); Brennan v. O.S.H.R.C. & Vy Lactos Lab., Inc., 494 F.2d 460 (8th Cir. 1974).

The Court of Appeals for the District of Columbia in National Realty, supra, interpreted rendering a workplace "free" of a hazard as referring to preventable hazards. In the instant case there was no conduct contrary to respondent's instructions and shutting off an engine is clearly an attainable practice. However, the latter two elements of [*7] proof are the subject of controversy in this case.

With respect to whether a hazard is "recognized," the Administrative Law Judge erred in failing to consider the ANSI standard as evidence of the existence of a "recognized hazard."

A standard promulgated by the American National Standards Institute, which has been adopted by the Occupational Safety and Health Administration insofar as it applies to the construction industry, cannot be lightly dismissed by his reference to a "phantom standard." As noted previously, one of the primary purposes of the ANSI standard is to serve as a guide to users of equipment covered by the standard. An achievement of the ANSI purpose in adopting the standard would have resulted in respondent's awareness of it. However, even if there were ignorance of the ANSI standard by an employer this would not preclude its constituting evidence of a "recognized hazard," inasmuch as the standard of knowledge in the industry is determinative of the existence of a "recognized hazard." National Realty, supra, at 1265 n. 32.

On the basis of the ANSI standard the Secretary has established by substantial evidence that the practice of shutting off the engine of [*8] an unattended crane is a recognized practice in respondent's industry.

However, the Secretary has failed to sustain his burden of proof with respect to the final element of a general duty clause violation. Accordingly, the Judge's failure to consider the ANSI standard is not reversible error.

The final element stated in National Realty refers to the likelihood of harm ensuing from the alleged hazardous condition. That case involved an employee riding on a piece of equipment at a construction site. The Court considered the riding employee's death and common sense as indicating the potential for injury. Here, testimony fails to establish that a hazard likely to cause death or serious injury exists by allowing an unattended crane motor to remain running. The compliance officer's opinion that someone may tamper with the equipment is not persuasive. It may be "safer as a matter of degree" to turn off the engine, but it does not follow that the resulting hazard will likely cause death or serious injury. There is a lack of foreseeability here. The Secretary has failed in his proof.

What is persuasive is expert testimony with regard to the hazard that is created by [*9] the raised boom resting on an object above ground level, in conjunction with the unattended idling crane. Three witnesses testified as to the hazard of a raised boom slipping, with the resulting momentum causing rotation. One of the Secretary's witnesses stated that this hazardous result could occur without the motor running. Thus, neither the accident which actually occurred nor any other foreseeable hazard has been shown to be likely as the result only of an unattended idling crane engine.

The danger associated with a raised boom, either with or without the crane engine running, has been shown. n3 However, the issue of this hazard was neither alleged and tried, nor tried by consent of the parties. See Godwin-Bevers Co., Inc., No. 1373 (January 7, 1975) (Cleary, Commissioner, dissenting).

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n3 The ANSI standard relied upon by the Secretary and set forth above also provides as follows:

f. before leaving his crane unattended, the operator shall: 8. Crane booms shall be lowered to guard level or otherwise fastened securely against displacement by wind loads or other outside forces.

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It is ORDERED that the Judge's vacating of the citation for serious violation and notification of proposed penalty be affirmed for the reasons stated in this decision.

CONCURBY: MORAN; VAN NAMEE

CONCUR:

MORAN, CHAIRMAN, concurring: I concur in the disposition herein ordered for the reasons assigned by Judge Otto in his decision.

The lead opinion erroneously asserts that an ANSI standard is evidence of the existence of a recognized hazard. The patent nonsense of this position can be seen by considering such ANSI standards as the one requiring that ice not be permitted in drinking water (see, for example, Sanitation in Places of Employment, ANSI Z4.1-1968) and that each place of employment be equipped with separate retiring rooms for women employees. For an indication that the failure to observe such ANSI standards does not present any hazard to employees, see 38 Fed. Reg. 9078 (1973).

VAN NAMEE, COMMISSIONER, concurring: I concur because regardless of the discussion engaged in by my colleagues concerning the question of whether an ANSI standard is evidence, the facts in this case show that Respondent's conduct [*11] was not causing or likely to cause death or serious physical harm. The judge's disposition is therefore proper.

However, because of certain statements made in the lead opinion I must make additional comments. First, it is said that the judge committed error by failing to consider the ANSI standard offered in evidence. As I read his decision he did consider the standard and gave it the weight he thought it was worth. In this I think he properly handled the question discussed by my colleagues. That is, an ANSI standard is admissible in evidence, but its evidentiary value depends on the nature of the case.

Secondly, the lead opinion flatly asserts that the ANSI standard (B30.5-1968) was "promulgated by associations including those representing respondent's industry." Respondent is a scrap metal (iron and steel) processor. I not that such processors are represented by the following (1) the Institute of Scrap Iron and Steel, Inc., (2) the National Federation of Independent Scrap Yard Dealers, and (3) the National Association of Secondary Material Industries (formerly, the National Association of Waste Material Dealers). I do not find that any of these associations participated [*12] in the promulgation of the ANSI B30.5 standard.

[The Judge's decision referred to herein follows]

OTTO, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. hereafter the Act). Following investigation a citation was issued on March 16, 1973 by the Secretary of Labor (hereafter Secretary) alleging the Respondent (hereafter Employer) violated six standards. The Employer does not contest citation items 1 through 5. The issues relate solely to item 6. Hearing was held in Green Bay, Wisconsin on January 11, 1974.

The Employer, Betten Processing Corporation, has a workplace at 2175 Shawano Avenue, Green Bay, Wisconsin, processing iron and steel with about 36 employees. A crane was used to load scrap into trucks. On March 2, 1973 the crane magnet swung into a truck, killing an employee.

THE ISSUES

1. Whether the Secretary can amend the citation and allege a serious violation rather than a non-serious violation and whether the Secretary can change the proposed penalty from $185 to $750;

2. Whether the Employer furnished to his employees employment and a place of employment which are free from recognized [*13] hazards that are causing or are likely to cause death or serious physical harm to its employees, within the meaning of Section 5(a)(1) of the Act;

3. If the Employer failed in his duty to comply with Section 5(a)(1), the appropriate assessment of civil penalty for such violation.

Issue No. 1:

Commission Rule of Procedure No. 2200.33(3) provides: Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

The citation issued March 16, 1973 stated the standard or regulation allegedly violated in item no. 6 as "Public Law 91-596, Section 5(a)(1), USAS B30.5-1968 5-3.1.3(F)(5)." The citation description of alleged violation was "Employer failed to provide that recognized operation practices were followed when leaving a crane unattended by not assuring that the crane engine was stopped on Northwest Crane NW #6, SN #13400." The bottom paragraph of each citation page stated "Alleged violations covered by this citation are those which are not serious violations within the meaning of the Act but which have a direct or immediate relationship to occupational [*14] safety and health."

In a notification issued March 16, 1973 the Secretary proposed a penalty of $185 for citation item 6.

The complaint served by the Secretary April 30, 1973 paragraph IV (a), set forth alleged violation of Section 5(a)(1) of the Act in that the Respondent "Failed to provide that recognized operation practices were followed when leaving a crane unattended by not assuring that the crane engine was stopped on Northwest Crane NW #6, SN #13400 to protect such employees working at or around the crane against a hazard of injury from any moving part of the unattended crane and that by such failure, on March 2, 1973, an idling crane was left unattended with engine running at respondent's workplace and the boom of the crane swung around causing the magnet at the end of the boom to strike a truck, fatally injuring respondent's employee in the truck. (Item 6 of Citation)."

Complaint paragraph V(b) set forth "The violation alleged in paragraph IV(a) was a serious violation, within the meaning of section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result, and the respondent knew, or with the exercise of reasonable [*15] diligence, could have known, of the presence of the violation."

Under paragraph IV(f)(2) the Secretary proposed a penalty for citation item 6 in the amount of $750 rather than $185. The complaint, paragraph V, sets forth "Complainant seeks to amend the Citation (for non-serious violation) with respect to item 6 to read as specified in paragraphs IV(a) and (b) hereof which allege that item 6 is a serious violation. Further examination of the investigation information by the complainant after the filing of the notice of contest by the Respondent indicated that the violation of section 5(a)(1) of the Act by respondent was of a serious nature. The amendment is made in order to more clearly reflect the nature of that violation. Complainant seeks to amend the Notification of Proposed Penalty in respect to item 6 to read as set forth in paragraph IV(f)(2). The amendment is made in order to reflect the modification of item 6 from a non-serious to a serious violation of the Act."

The section of the Act allegedly violated remains the same: Section 5(a)(1). The complaint did not repeat the citation reference to "USAS B30.5-1968 5-3.1.3(F)(5)." This omission does not reflect [*16] an amendment or change of the section of the Act allegedly violated. Since the omitted reference identifies only a so-called standard of the American National Safety Institute (ANSI) -- which is not a standard promulgated under Section 6, designated under Section 3(9) nor included under Section 4(b)(2) of the Act -- the deletion by the Secretary was not only permissible but imperative.

Paragraphs V(a) and (b) of the complaint set forth the reasons for amendment and state with particularity the changes sought.

The amendment procedure under Rule 33(a)(3) followed by the Secretary results in a valid allegation of a serious violation of Section 5(a)(1) with a proposed penalty of $750.

Issue No. 2:

Section 5(a) of the Act provides that each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

This issue is confined to the question of alleged violation of Section 5(a)(1) of the Act which rests upon resolution of the question of whether leaving the crane unattended with the engine running constituted a recognized hazard [*17] causing or likely to cause death or serious physical harm to employees of this Employer.

The Court declared in Secretary v. Vy Lactos Laboratories, Inc., the industry as well," that actual knowledge does satisfy the recognition requirement. (Case remanded for further factfinding proceedings.)

This issue requires determination of whether there was a hazard and if so whether (1) the employer had actual knowledge of the hazard or (2) whether the hazard was generally recognized by the iron and steel processing industry. The Employer knew the crane engines were left running rather than being shut off between work intervals in cold weather. This was a recognized operating procedure, but there is nothing in the record to establish that a practice of running the motor in an unattended crane represented a hazard. Section 5(a)(1) requires more than a mere possibility. The term [*18] "likely" denotes a higher degree of probability than a mere possibility. Secretary v. Arizona Public Service Company, docket no. 329.

The fact of accident causing injury, fatal or otherwise, does not establish a violation. Secretary of Labor v. Republic Creosoting, docket No. 22, Secretary v. Southern Soya Corporation of Leesville, docket No. 515.

Acceptable testimony of the events of March 2, 1973 was provided by Norbert Petasek, a 25-year employee and supervisor of the yard men. It was his practice to operate a crane where the usual operator did not report, and for that reason was operating the crane involved in the accident. The crane boom was 60 feet with about 60 feet of cable attached to a 4,300 pound magnet. He swung the magnet so he could get off the crane, disengaged the swinging clutch, disengaged the engine clutch, locked the swinging brake and placed the magnet on a scrap pile about 6 feet high. He did not place the magnet on the ground because the weather was wet; it was raining and the ground was muddy and an electrical magnet would short out now and then. He left the crane and left the engine running and according to his testimony, "This [*19] is customary procedure." By disengaging the clutches there was no power transmitted to the superstructure. He was gone for about 15 minutes and on the way back noticed the superstructure and the boom were moving, the crane was in the same location as far as the tracks were concerned; the magnet was resting on one of the piles when he left. He testified his boss was told it is better to keep the engines running in cold weather because they are hard to start.

Secretary witnesses included three Department of Labor employees -- a compliance officer, an area director, a technical advisor, an engineer employed by Northwest Engineering Company, manufacturer of the crane, and a safety specialist employed by the State of Wisconsin.

The compliance officer testified he was informed by officers or supervisory personnel of the employer that the crane operator after leaving the crane with the engine running to perform another duty, saw the boom swinging but was too late to get back to stop it, that the magnet had already swung through the cab killing the truck operator. He testified the employer violated the ANSI standard Section 5-3.1.3(F)(5) operating practices in that the violation [*20] under (F)(5) occurred because the engine was not shut off while the crane was unattended, and in his opinion it is a recognized hazard that a piece of equipment of this magnitude when left unattended should definitely be in an off position or the engine should be stopped. He did not determine the cause of the accident or what caused the superstructure to turn; the operator did everything he was supposed to do except stop the engine, that the failure to stop the engine was a violation of the ANSI standards.

The area director testified the original determination of a non-serious violation was based upon failure to stop the engine.

The technical advisor of the Occupational Safety and Health Administration testified that the NW model 6 diesel crane falls under the scope of ANSI 5.01. (Complainant's Exhibit 5), that Section 5-3.1.3 requires the crane to be attended all the time or else have the engine shut off, that it is a hazard to leave it unattended (Complainant's Exhibit 1), that there is a hazard because of the potential of the superstructure starting to rotate, the crane has slippage in its gears, brakes wear, could be parked on an incline and start moving. Vibrations may have [*21] some bearing and a cylinder not firing properly sets up more vibrations; if the operator was there and the superstructure started to swing, he could apply more weight to the rotating brake without the engine running.

The Northwest Engineering Company employee called by the Secretary testified he is a registered engineer and inspected the model 6 Northwest crane March 2, 1973, describing its internal operations; all these systems depend upon he engine for the energy to make them work. This crane was shipped about August 1950. Temperature considerations make it burdensome to leave an engine shut off for periods of time, the lubricants will stiffen up and present starting problems and delay of the point at which the machine is functioning satisfactorily. He testified the Northwest Engineering Company did not recommend that the crane be left running nor that it be shut off. He stated he is familiar with ANSI standard B30.5 and that this crane is within the scope of that standard, that if the crane operator disengages the master clutch, the rotating shaft jaw clutch, applies the rotating brake and the horizontal reverse shaft clutches are in the neutral position, there is [*22] no power for the superstructure to move in any direction if all of those conditions are properly done because the engine power cannot be delivered to the swing function even if the engine is running. It is disconnected. He testified there is no significant safety influence if the master clutch is disengaged with a magnet placed on the ground and the engine running or not running. The swing brake restrains rotation, like an emergency brake. It would be safer if the engine was shut off as a matter of degree. The operator leaving the cab would not constitute a hazard. The State of Wisconsin safety specialist in his investigation received opinions as to the cause of the boom swinging, but in his opinion the cause of the boom swinging could not be cleary determined without having made certain assumptions which are not supported in the record.

The employer presented two witnesses, the crane operator and a consulting engineer. The consulting engineer was not an employee of this Employer or the crane manufacturer. In his opinion the cause of the superstructure swinging with the magnet hitting the truck was the swinging of the boom by the operator to get off the crane after he had [*23] landed the magnet on the 6-foot pile of scrap, that as he did so the cable became tight, the magnet was placed on a very unstable footing to start with and the footing was lubricated by moisture and the magnet started to slide off the stack, swung in a pendulum action and passed the point of center of the boom, with additional force created by the angularity of the boom due to the inclination of the anchor pin or pivot pin at the bottom of the boom which set it into a still greater swing and resulted in hitting the cab. He testified he did not think the engine running had any contributing factor or cause for the swinging, that even if the operator had shut off the engine and was still sitting in the cab and the superstructure started to move he would not have been able to cope with the incident at the rate or speed and could not have prevented the boom, hoist and magnet from proceeding in the direction in which it did.

To find ANSI standards within the pale of the Act without corresponding promulgation under the Act would bring in every phantom standard from whatever source for consideration in determining recognized hazards under Section 5(a)(1). The issue does not involve [*24] violation of an ANSI standard. Secretary v. S.D. Mullins Company, Inc., 364/459.

Even if the ANSI standard could be recognized for the purpose of this issue, it is doubtful whether the stopping of the engine with the crane unattended would represent a recognized hazard. ANSI 5-3.1.3 contains 12 subparts including subpart (F) listing eight operating practices including (F)(5) to "stop the engine." The failure to stop the engine is the only operating practice omitted under the ANSI standards relating to the work situation existing in the place of employment on March 2, 1973.

The record does not include oral testimony or documentary evidence of any prior episode of this nature. The Employer did not maintain crane records ( Secretary v. Betten Processing Corp., docket no. 2647, Administrative Law Judge decision April 24, 1974). Various theories and conjectures appear in the record as to the cause of the unexpected movement of the magnet. Whether the continued running of the engine produced vibration that contributed to a drifting of the superstructure and movement of the boom which coupled with other physical factors resulted in activating the magnet motion with [*25] the resulting fatality is speculative and therefore necessarily rejected. It is no more than speculative to construe the recognized operating practice of this employer in running the crane engine with the crane unattended as causing or likely to cause death or serious physical harm to his employees.

There is nothing in the record indicating the Employer's industry had a generally recognized knowledge of a hazard resulting from an operational practice of permitting crane engines to run while the crane was unattended.

Issue No. 3:

In the absence of a violation of Section 5(a)(1) there is no penalty assessment under Section 17 of the Act.

FINDINGS OF FACT

1. The Employer at all times relevant was engaged in a business affecting commerce among and between states.

2. An employee suffered fatal injury when struck on March 2, 1973 by the magnet of a crane owned and operated by the Employer.

3. About 15 minutes before the accident the operator placed the magnet on a scrap pile, swung the boom so he could get off the crane, disengaged the swinging clutch and disengaged the engine clutch and locked the swinging brake and left the engine running.

4. At the time of the [*26] March 2, 1973 accident, the crane was unattended and the crane engine was running.

5. The practice on and before March 2, 1973 of leaving the crane engine running and the crane unattended between periods of work activity was established and continued by the Respondent.

6. The practice of leaving engine running while the crane was unoccupied was recognized by the Employer but was not a hazard recognized by the Employer.

7. The practice of leaving the engine running while the crane was unattended between periods of work activity did not represent a hazard generally recognized by the iron and steel processing industry.

8. At the time of inspection on March 5, 1973 and prior thereto the Employer furnished to each of his employees employment and a place of employment free from recognized hazards causing or likely to cause death or serious physical harm to his employees.

CONCLUSIONS OF LAW

1. Respondent was an employer within the meaning of Section 3(5) of the Act.

2. At the time of inspection and prior thereto, particularly on March 2, 1973, Respondent did not fail to comply with Section 5(a)(1) of the Act.

3. In the absence of a violation there is no assessment [*27] of penalty herein.

ORDER

It is ORDERED that the complaint be dismissed and the citation alleging violation of Section 5(a)(1) of the Act be and the same is hereby vacated.