WRAY ELECTRIC CONTRACTING, INC.
OSHRC Docket No. 76-119
Occupational Safety and Health Review Commission
September 14, 1978
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Norman F. Hoover, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
As a result of a December 22, 1975, inspection of respondent's worksite at Mount Healthy, Ohio, the Secretary of Labor cited respondent for violating the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("the Act") for its failure to comply with the OSHA standard at 29 CFR § 1926.556(b)(2)(v). n1 Following a timely notice of contest a hearing was held on March 17, 1976. As a result of that hearing and the filing of briefs by both parties Administrative Law Judge Louis G. LaVecchia found respondent in serious violation of the cited standard and assessed a penalty of $500.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 § 1926.556 Aerial Lifts
* * *
(b) Specific Requirements
* * *
(2) Extensible and articulating boom platforms
* * *
(v) A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - [*2] - - - -
Respondent has petitioned the Commission for review of the decision of the Administrative Law Judge. Pursuant to 29 U.S.C. § 661(i) Commissioner Frank R. Barnako ordered review of the Judge's decision on the following issue:
Whether the trial judge committed reversible error in concluding that the requirements of 29 CFR 1926.556(b)(2)(v) were applicable to Respondent's aerial ladder under the circumstances of this case. n2
Both parties have filed briefs on review. Having considered the entire record we affirm the Administrative Law Judge for the reasons set forth below.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 A direction for review was also issued by former Commissioner Moran which did not specify and issues.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The facts of this case are essentially undisputed. Respondent is an electrical contractor engaged in, among other things, the installation and servicing of overhead traffic signals. On the day of inspection respondent's employee was repairing an overhead traffic signal. He was working from a position atop an aerial ladder truck n3 [*3] standing on a small platform attached to the ladder. The employee was 16' 3" above the road surface with moving traffic beneath him. This employee was using neither a body belt nor lanyard securing him to the equipment.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 The equipment in question was a serious 5510 "Powers American Revolving Aerial Ladder" manufactured by Mc-Cabe Powers Body Company.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
At trial and on review respondent takes the position that the cited standard does not apply to the equipment which was in use inasmuch as it should have been properly classified as an aerial ladder to which 29 CFR § 1926.556(b)(1) n4 applied in lieu of .556(b)(2). Respondent contends that subparagraphs n5 (b)(1) and (b)(2) of section .556 are "mutually exclusive". The Administrative Law Judge Found that respondent's equipment combined features of an aerial ladder and an extensible boom and, as such, was covered by the cited standard. The Judge noted, and respondent conceded, that its equipment fell within the coverage of the general standard for aerial lifts, 29 [*4] CFR § 1926.556(a). n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 (b) Specific requirements
(1) Ladder trucks and tower trucks. Aerial ladders shall be secured in the lower traveling position by the locking device on top of the truck cab, and the manually operated device at the base of the ladder before the truck is moved for highway travel.
n5 For purposes of clarity the following terms will be used to describe various portions of the standards: .556 Section
(a) Subsection
(1) Subparagraph
(i) Subdivision
n6 (a) General requirements (1) Unless otherwise provided in this section, aerial lifts acquired for use on or after the effective date of this section shall be designed and constructed in conformance with applicable requirements of the American National Standard for "Vehicle Mounted Elevating and Rotating Work Platforms," ANSI A92.2-1969, including appendix. Aerial lifts acquired before the effective date of this section, which do not meet the requirements of ANSI A92.2-1969, may not be used after January 1, 1976, unless they shall have been modified so as to conform with the applicable design and construction requirements of ANSI A92.2-1969. Aerial lifts include the following types of vehicle-mounted aerial devices used to elevate personnel to jobsites above ground: (i) Extensible boom platforms, (ii) aerial ladders, (iii) articulating boom platforms, (iv) vertical towers, and (v) a combination of any of the above. Aerial equipment may be made of metal, wood, fiberglass reinforced plastic (FRP), or other material; may be powered or manually operated; and are deemed to be aerial lifts whether or not they are capable of rotating about a substantially vertical axis.
(2) Aerial lifts may be "field modified" for uses other than those intended by the manufacturer provided the modification has been certified in writing by the manufacturer or by any other equivalent entity, such as a nationally recognized testing laboratory, to be in conformity with all applicable provisions of ANSI A92.2-1969 and this section and to be at least as safe as the equipment was before modification.
[*5]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
On review respondent argues that sub-paragraphs .556(b)(1) and .556(b)(2) are mutually exclusive in that .556(b)(1) applies exclusively to aerial lifts which fall under the category "Ladder trucks and tower trucks" whereas .556(b)(2) applies exclusively to aerial lifts which are "extensible and articulating boom platforms." Respondent argues that since its equipment is more specifically defined as an aerial ladder .556(b)(1) is applicable and .556(b)(2)(v) cannot apply. Respondent further urges that its equipment cannot be classified as an "extensible or articulating boom platform because it has all manual controls, it has neither upper controls nor out-riggers and only one employee can be at the top of the ladder at any one time. Respondent claims that these are distinguishing characteristics of an aerial ladder. Respondent submits that while its equipment is an aerial lift (a general category) it is neither an "extensible" nor "articulating boom platform" to which subparagraph (b)(2) is specifically applicable. Finally, respondent argues that the cited sub-division is vague and confusing due to [*6] its use of the general term "aerial lifts."
The Secretary argues that the equipment used by respondent is an "extensible boom platform" within the meaning of § 1926.556(b)(2) and thus § 1926.556(b)(2)(v) is applicable. The Secretary also argues that even if the equipment is not an extensible boom platform it was an aerial lift and was thus within the coverage of § 1926.556(b)(2)(v).
We find that the equipment in question, as it was used by respondent at the time of inspection, was an extensible boom platform and thus within the coverage of § 1926.556(b)(2). The compliance officer, who received specific training pertaining to the type of equipment in question and who has conducted inspections of vehicle mounted equipment, testified that an "extensible boom platform" is a device which ". . . has a platform on the end . . . from which an employee would work when he's elevated above the ground level." He distinguished such a device from an aerial ladder which, in his opinion, would be used to gain access to rather than provide a working platform. Respondent's President confirmed the fact that the equipment in question had a small platform for the purpose of allowing employees to [*7] perform work from a position at the top of the device. In fact, an employee was doing so at the time of the inspection.
The general requirements sub-section, 29 CFR § 1926.556(a), refers to the source of § 1926.556 as the American National Standard for Vehicle-Mounted Elevating and Rotating Work Platforms (ANSI A92.2-1969). The ANSI standard defines "extensible boom platform" as:
As aerial device (except ladders) with a telescopic or extensible boom. Telescopic derricks with personnel platform attachments shall be considered to be extensible boom platforms when used with a personnel platform.
ANSI A92.2-1969, § 2. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Despite the failure of either party to introduce the ANSI standard into evidence the Commission may take cognizance of its provisions. Gaetano Construction Co., 78 OSAHRC 24/A2, 6 BNA OSHC 1463, 1978 CCH OSHD para. 22,630 (No. 14886, 1978).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Under the facts of this case, given the physical characteristics of the equipment and the use to which it was put, n8 we conclude that the equipment was [*8] an extensible boom platform and that the cited standard, § 1926.556(b)(2)(v), is applicable.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Inasmuch as our determination rests upon both the physical characteristics of the equipment as well as the use to which it was put we find inapposite the Commission decision in Felton Construction Co., 76 OSAHRC 136/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD para. 21,258 (No. 6759, 1976).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
We further find that the cited standard is not so vague either on its face or in its application as to be unenforceable despite respondent's argument to the contrary. n9 Respondent's position is, in essence, that because sub-section (b) of 29 CFR § 1926.556 is entitled "Extensible and articulating boom platforms" the application of any sub-divisions thereunder to equipment which is not an "extensible boom" or "articulating platform" would deprive employers of proper notice and clarity as to the applicability of the standards. We do not agree. n10
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 We note that while respondent makes a general "vagueness" argument it does not specifically claim or demonstrate that any pre-inspection effort to assure employee safety was hindered by the asserted lack of clarity in the cited standard.
10 See, Arizona Public Service Co., 77 OSAHRC 3/A2, 4 BNA OSHC 1936, 1976-77 CCH OSHD para. 21,427 (No. 8501, 1977) in which the Commission held that 29 CFR § 1926.556(b)(2)(ix), which requires powered work platforms to be provided with both platform (upper) as well as lower controls, was not unenforceably vague.
[*9]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The General Requirements provision of 29 CFR § 1926.556 appears as subsection (a) and contains the following language:
Aerial lifts include the following types of vehicle-mounted aerial devices used to elevate personnel to jobsites above ground: (i) Extensible boom platforms, (ii) aerial ladders, (iii) articulating boom platforms, (iv) vertical towers, and (v) a combination of any of the above.
Subsection (b) entitled "Specific Requirements" contains five sub-paragraphs as follows: "(1) Ladder trucks and tower trucks", "(2) Extensible and articulating boom platforms", "(3) Electrical tests", "(4) Bursting safety factor", and "(5) Welding standards."
We first note that were we to accept respondent's rationale there would be only one specific standard applicable to "aerial ladders" n11 and that no specific standards would be applicable to "vertical towers" while twelve specific standards would be applicable to "extensible and articulating boom platforms." n12 Given the plethora of such equipment in common commercial usage we cannot conclude that the Secretary, in drafting these standards, intended such [*10] an illogical result.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 Aerial ladders must be secured in the lower position before the truck is moved. 29 CFR § 1926.556(b)(1).
n12 29 CFR § 1926.556(b)(2)(i) through and including § 1926.556(b)(2)(xii).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As discussed previously, the term "aerial lift" is broad. Indeed, respondent concedes that its device is an "aerial lift." Examination of the language of various sub-divisions of § 1926.556(b)(2) discloses that sub-divisions (ii), (iii), (v), (vii), (viii), (x), (xi) and (xii) refer to "aerial lifts" while sub-division (ix) refers only to "articulating boom and extensible boom platforms." The particular sub-division under which respondent was cited, (v), is one which uses the term "aerial lift." In context each of the sub-divisions using the term "aerial lift" is rational and meaningful if applied to the broad category of equipment connoted by the use of that term. We conclude that the selection by the Secretary of broad or narrow terms in various sub-divisions of § 1926.556(b)(2) indicates that the title of [*11] sub-section (b), "Extensible and articulating boom platforms", was not intended to limit the applicability of various sub-divisions within that sub-section. To limit the applicability would ignore the rule of statutory interpretation that the plain meaning of the text cannot be limited by the title of a statute or the headings of any of its sections. Titles and headings are ". . . tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain." Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad, 331 U.S. 519, 529 (1947). Sections 1926.556(b)(1) and (2) are not, as respondent urges, mutually exclusive. Thus, even if we were to find that respondent's equipment is not an "extensible" or "articulating boom platform" we would conclude that it is covered by § 1926.556(b)(2)(v) because it is clearly an "aerial lift".
We affirm the decision of the Administrative Law Judge in all other respects.
Accordingly, it is ORDERED that the Judge's decision is affirmed and a penalty of $500 is assessed.
DISSENTBY: BARNAKO
DISSENT:
BARNAKO, Commissioner, DISSENTING:
The majority concludes that the cited standard is applicable to Respondent's equipment [*12] on two grounds: First, they characterize Respondent's equipment as an extensible boom platform and therefore within the coverage of the cited standard. Second, they hold that the cited standard is not limited in application to extensible boom platforms but extends to all aerial lifts. Since Respondent has conceded its equipment is an aerial lift, the majority concludes that Respondent's equipment is within the coverage of the cited standard, even if it is not an extesible boom platform. I do not agree with these conclusions and therefore respectfully dissent.
At the outset, I disagree with the majority that Respondent's responsibilities under the Act are not delineated by the subheadings of 29 C.F.R. 1926.556(b). 29 C.F.R. 1926.556(b), entitled "Specific requirements", is divided into five subsections. 1926.556(b)(1) is entitled "[l]adder trucks and tower trucks." 1926.556(b)(2) is entitled "[e]xtensible and articulating boom platforms" and contains twelve subgroupings. The last three subsections, 1926.556(b)(3) through 1926.556(b)(5), address "electrical tests," "bursting safety factor" and "welding standards," respectively. This organizational format clearly demonstrates [*13] that the Secretary intended that certain standards are to apply to ladder trucks and tower trucks; others are to apply to extensible and articulating boom platforms; and still others are to apply to all types of aerial lifts, including ladder trucks as well as extensible boom platforms. Had the Secretary not intended these distinctions to apply, there would have been no need to subdivide 1926.556(b) into distinct subgroupings. The majority's holding therefore results in a finding that the Secretary's action in subdividing the requirements of 1926.556(b) was meaningless.
In support of their decision, the majority proffers the premise that it is the responsibility of an employer to read beyond the clear wording of the headings of a standard in order to determine if the standard does apply or conceivably could apply to its operation. In my opinion, however, the employer is entitled to rely upon the topic headings under which the standards appear and should not be placed in the position of guessing which ones apply and which ones do not. To hold otherwise places an employer in an unfair position and deprives him of the fair notice which is required before a finding of fault relative [*14] to a violation of a standard may be had. cf. General Electric Co. v. OSHRC, F.2d , Docket No. 77-4317 (2nd Cir., filed August 16, 1977).
Nor do I conclude that a different result should follow because, as the majority notes, to accept the position that the topics govern the applicability of the standard means that only one specific standard would apply to aerial ladders, none to vertical towers n1 and twelve to extensible and articulating boom platforms. Apparently the majority is concerned that employees working on aerial ladders will not be afforded the same protection as those working on extensible and articulating boom platforms if the application of 1926.556(b)(2) were limited. n2 They note that the Secretary could not have intended such an "illogical result." However, the Courts of Appeal have continually admonished both the Secretary and this Commission not to strain the plain wording of the standards. The Third Circuit in Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3rd Cir. 1978) stated,
The test is not what he [the Secretary] might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and obligation [*15] to amend.
And the Fifth Circuit in Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 648-649, 650 (5th Cir. 1976) stated,
If the regulation missed its mark, the fault lies in the wording of the regulation. . . . To strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them.
Here the topic headings clearly delineate the employer's responsibilities. If the Secretary had intended 29 C.F.R. 1926.556(b)(1) and (b)(2) to apply to all aerial lifts, he could have easily done so by deleting the use of subtopics and placing the requirements of (b)(1) and (b)(2) under the heading "Specific requirements."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 It is not clear that no specific standards apply to vertical towers, since this Commission has not considered whether vertical towers include tower trucks. It should be noted in this regard that the definition of aerial lifts set forth at 29 C.F.C. 1926.556(a) and appearing at page 8 of the majority opinion refers to vertical towers, but does not refer to tower trucks.
n2 Even this premise is partially erroneous since the employers must comply with any general standards applicable to their worksites where there are no specific standards that govern. See, for example, 29 C.F.R. 1926.28(a) which requires utilization of personal protective equipment, i.e. safety belts, in certain circumstances.
[*16]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Moreover, in ignoring the topic heading of 29 C.F.R. 1926.556(b)(2) and holding that 29 C.F.R. 1926.556(b)(2)(v) applies to all aerial lifts, the majority has also strained the clear meaning of the words of the standard itself. The cited standard requires the attachment of a lanyard to the "boom" or "basket." Respondent's ladder had neither a boom nor a basket. Hence even if Respondent were to ignore the topic heading and assume that certain subdivisions of 29 C.F.R. 1926.556(b)(2) applied, it would not have known that the cited standard was applicable since its equipment had neither a boom nor a basket. cf. Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir., 1977).
I also dissent from the conclusion of the majority that Respondent's aquipment was an extensible boom platform. In my opinion, the evidence of record supports a finding that Wray Electric was utilizing an aerial ladder during the inspection by the compliance officer. The standard at 29 C.F.R. 1926.556 does not define either an aerial ladder or an extensible boom platform. Therefore the words must be given meaning by [*17] viewing them in light of the common understanding and practices of those familiar with such devices. Modern Automotive Service, Inc. 74 OSAHRC 9/A11, 1 BNA OSHC 1544, 197374 CCH OSHD para. 17,369 (No. 1541, 1974). Persuasive evidence in this respect are Respondent's three exhibits of sales pamphlets which depict the truck and ladder in question. All three phamplets refer to the equipment as an aerial ladder.
The majority opinion concedes that the equipment is an aerial ladder. It concludes, however, that the equipment is an extensible boom platform because it contains a small platform on which an employee stands to perform work. I do not agree that ths factor alone converts an aerial ladder into an extensible boom platform. Nor does the record evidence support this conclusions. The compliance officer, upon whose testimony the majority relies in reaching their result, did state that the difference between an extensible boom platform and an aerial ladder is that the former contains a platform while the latter does not. However, the majority overlooks that portion of the compliance officer's testimony wherein he also states that an extensible boom can be rotated and moved [*18] laterally while an employee is on the equipment. n3 The uncontroverted evidence establishes that Respondent's equipment could not be moved laterally or rotated while an employee is on the equipment. Hence, even if I were to base my conclusion solely on the compliance officer's testimony, as does the majority, I would conclude that Respondent's equipment is not an extensible boom platform.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Respondent's witness, and President, Mr. Wray, agreed, stating that an employee can generally rotate and move an extensible boom platform while he is on the platform, or in the basket or bucket.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Other record evidence also establishes that any distinction between en extensible boom platform and an aerial ladder that is based upon the mere presence of a platform similar to the one here is artificial at best. Respondent's equipment had a small platform at the top upon which an employee could stand. As explained by Mr. Wray, the platform was a device to prevent employee fatigue which would occur if employees stood on the ladder's [*19] round runds. The platform was small and would not hold more than one employee. Accordingly, the rung of a ladder and the platform here are sustantially the same. Therefore, in my opinion any distinction based upon the presence of a platform of this size and function is inappropriate. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Mr. Wray explained that the smallest platforms on extensible boom platforms measure 3 feet by 6 feet and can be utilized by more than one employee at a time. He also stated that the booms of extensible boom platforms are power operated while the ladder of Respondent's equipment was manually extended.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The majority points to the source standard, ANSI A92.2-1969, in support of their conclusion that Respondent's device is extensible boom platform. However they do not explain how that standard supports their result. Indeed the first sentence of the referenced ANSI provision explicitly states that an extensible boom platform is an aerial device which is not a ladder. The second sentence of the referenced ANSI provision states that [*20] an extensible boom platform includes telescopic derricks with personnel platforms. But this sentence also does not support the majority holding since there is no record evidence from which it can be concluded that a ladder is a telescopic derrick. Moreover ANSI A9.2.2-1969 defines an aerial ladder as an aerial device consisting of a single or multiple-section extensible ladder. No mention is made of a telescopic derrick. Therefore, on the record before me, I cannot conclude that an aerial ladder is a telescopic derrick.
For the above reasons, I dissent from the majority opinion and would vacate the citation for violation of 29 C.F.R. 1926.556(b)(2)(v).