THE DUNCANSON-HARRELSON COMPANY

OSHRC Docket No. 76-1567

Occupational Safety and Health Review Commission

March 31, 1981

[*1]

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Associate Regional Solicitor, USDOL

T. B. Coull, Jr., V.P., Duncanson-Harrelson Co., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Garl Watkins is before the Commission for review under section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In that decision, Judge Watkins vacated item 1 of citation 2, which alleged a failure by the Duncanson-Harrelson Company ("Duncanson") to comply with the crane standards at 29 C.F.R. 1926.550(f)(1)(iv), and item 3 of citation 1, which alleged a failure to comply with the housekeeping standard at 29 C.F.R. 1926.25(a). The Secretary of Labor ("Secretary") filed a petition for discretionary review, which Chairman Cleary granted. The petition raises the following issues:

(1) Whether the Administrative Law Judge erred in finding that [Duncanson's] crane was positively secured within the meaning of 29 CFR 1926.550(f)(1)(iv).

(2) Whether the Administrative Law Judge erred in vacating item 1 of Citation No. 1, alleging [*2] noncompliance with the standard at 29 CFR 1926.25(a), on the basis that the barge did not constitute a work area.

We affirm the judge's decision in part and reverse it in part.

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n1 29 U.S.C. 661(i).

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I

A

On March 18 and 19, 1976, Compliance Officer David Hancock inspected Duncanson's construction worksite at North Bend, Oregon. Duncanson was replacing piles in an old wharf for the Roseburg Lumber Company. On the barge rented by Duncanson there was a truck crane, which was used to lift the lumber piles, and a separate compressed air hammer mechanism, which was used to drive the piles into the wharf. The barge was 110 feet long and 45 feet wide. The truck crane was not fastened to the barge in any way. Its four outriggers were extended for three-quarters of their length. Mr. Dieu, Duncanson's jobsite superintendent, told Mr. Hancock during the inspection that the rear end of the crane had been lifted off the barge twice while the crane was lifting loads. Item 1 of citation 2 alleged that Duncanson violated [*3] the crane safety standard at 29 C.F.R. 1926. 550(f)(1)(iv), in that "[t]he 60-ton capacity American truck crane sitting on barge 520, approximately 45 feet by 110 feet, was not secured to the Barge." Section 1926.550(f)(1)(iv) states: "Mobile cranes on barges shall be positively secured." The Secretary alleged that the violation was serious, and proposed a $550 penalty.

At the hearing, the compliance officer testified that the hazard created by noncompliance with the cited standard was that the crane could tip over under the stress of an over-sized load, fall into the water and drown the crane operator, or could drop the load on an employee. The compliance offier testified that tying the crane's outriggers to the barge would have brought the employer into compliance. Duncanson's vice-president testified, however, that fastening the crane to the barge would prevent the crane operator from knowing if the crane's capacity had been exceeded. The operator depended upon the lifting up of the rear of the crane to determine whether the load was excessive.

Judge Watkins vacated that item. He viewed the term "positively secured" as not necessarily connoting physical attachment. He [*4] instead held that "secured" means made safe or not likely to fail or give way and that "positively" merely emphasized "secured." Although he found that the crane was not physically fastened to or attached to the barge, he also found that the Secretary "failed to produce evidence that the driving of the three piling[s] was not as safe as it would have been had there been a dozen lines fastening the crane tightly to the barge, or if the crane had been welded to the barge." He concluded that inasmuch as the pile driving operation was safe and free from a hazard or danger, the crane was "positively secured" as contemplated by the standard.

On review, the Secretary argues in his brief that the judge's construction of the phrase "positively secured" was wrong. The Secretary maintains that the plain meaning of the phrase "positively secured" connotes not merely stability, but also stability achieved by a degree of physical attachment. This connotation, he continues, is reinforced by the standard's subsection heading, "Mobile cranes mounted on barges" (emphasis added). He points out that the verb "mount" has a primary definition of "to attach to a support", citing Webster's Seventh [*5] New Collegiate Dictionary (1963). The Secretary also suggests that "positively" was used in the standard to indicate that the physical attachment of the crane to the barge should be made fast to effectively anchor the crane to the barge. In response to Duncanson's argument before the judge that fastening the crane to the barge would prevent the operator from detecting an overload, the Secretary states that he does not interpret the standard so strictly as to forbid enough "slack" to indicate an overload. The Secretary points out that such an interpretation was accepted by Administrative Law Judge Brenton in Soule Construction Co., 77 OSAHRC 130/F3, 5 BNA OSHC 1872, 1977-78 CCH OSHD P21,924 (No. 76-2695, 1977) (ALJ).

Duncanson argues on review that had the crane been "positively" (emphasis added by Duncanson) fastened to the deck of the barge, the crane operator could not have been warned that the crane was overloaded. Furthermore, Duncanson objects to the Secretary's view that some small amount of slack is allowable under the standard. Duncanson argues that "the words a 'small amount' are relative, judgmental, and undefinable in terms of the Standard['s] requirement [*6] to be positively secured." Duncanson maintains that the amount of slack could be so small that an overload could not be observed in time by the crane operator to avert a dangerous condition, and that the operator could have a false sense of security. Finally, Duncanson argues on review that because the barge in this case is large and stable, and the crane, even under maximum loading, would cause very little list (leaning) of the barge, the crane should not be tied down or otherwise secured to allow the crane to operate safely.

B

Section 1926.550(f)(1)(iv) states that "[m]obile cranes on barges shall be positively secured." It is undisputed that the crane was not fastened to the barge in any way. Although we agree with the judge that a standard should be construed in light of its purposes as well as its plain meaning, the language of the standard here is plain and the intent unmistakable: mobile cranes must be fastened to barges. We therefore find that the lack of fastening violated the standard.

As we have said, Duncanson argues that the crane operator would more easily detect whether he was lifting an oversized load if the crane was not secured to the barge. We will treat [*7] this argument as raising the affirmative defense of greater hazard. In order to establish that defense, an employer must prove that (1) the hazards created by compliance with the cited standard are greater than those resulting from noncompliance, (2) alternative means of protecting the employees are unavailable, or if available, are used, and (3) a variance application under 29 U.S.C. 655(d) is inappropriate. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1144, 1979 CCH OSHD P23,330 at p. 28,227 (No. 15094, 1979); Marion Power Shovel Co.,    OSAHRC   , 8 BNA OSHC 2244, 2248, 1980 CCH OSHD P24,915 at p. 30,730 (No. 76-4114, 1980). We find that the defense has not been established. There is insufficient evidence to find that the hazard of compliance is greater than that of noncompliance. In this regard, we consider it significant here that the Secretary does not interpret the standard to forbid enough slack in the securing of the crane to permit the operator to detect an overload. The record also does not show that alternative means of protection were unavailable, or that a variance application would have been inappropriate.

II

Item 3 of citation 1 alleged [*8] that, contrary to the housekeeping standard at 29 C.F.R. 1926.25(a), "[t]he deck of the Barge 520 had wire rope, miscellaneous tools and equipment, and lumber with 12-inch drifts protruding upward in the walking and working area." Section 1926.25(a) states:

Housekeeping. (a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

The Secretary proposed that a penalty of $30 be assessed.

The compliance officer testified that, as he stepped off the gangway onto the barge, he had to walk over miscellaneous tools and materials. The compliance officer also noticed some "drifts," large pieces of lumber with protruding spikes, near the foot of the gangway. The compliance officer saw three employees working "throughout the barge, everywhere -- doing various things." Judge Watkins vacated the item because there was no proof that the drifts, tools, ropes, and miscellaneous materials were in a work area or passageway.

The Secretary argues on review that, inasmuch as the cited material was at the foot of [*9] the gangway that was the only means of access to the barge, and that employees had to walk over and were working amidst the drifts, tools and wire, a violation was established. Duncanson argues that the materials on the barge were there by necessity because the owner of the barge would not allow it to pile debris on the dock for long periods of time.

We find, contrary to the judge, that, inasmuch as the employees were working throughout the barge, the areas on the barge where the cited materials were present were work areas and passageways, and that the drifts and rope were scattered on the barge in such a way as to create a tripping hazard. We also find that the employees had access to the tripping hazard. Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 2050, 1978 CCH OSHD P23,135 at p. 27,952 (No. 16057, 1978). However, we find that the tools scattered around that deck of the barge in this case are not debris as contemplated under the standard. See Gallo Mechanical Contractors, Inc.,    OSAHRC   , 9 BNA OSHC 1179, 1180, 1981 CCH OSHD P28,008 at p. 30,899-900 (No. 76-4371, 1980). We therefore vacate the item to the extent that it concerns tools. n2

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n2 Acting Chairman Barnako would apply the access test he set forth in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD paragraph 20,448 (No. 504, 1976), and would require a showing that it is reasonable predictable that employees will be, are, or have been in a zone of danger. Acting Chairman Barnako finds that, inasmuch as the employees walked on the gangway and worked throughout the barge, the access test in Gilles & Cotting has been met. For that reason, he joins with his colleagues in affirming the item in part.

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We also find that Duncanson has failed to establish the affirmative defense of impossibility of compliance. To establish that defense, the employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 7 BNA OSHC at 1144, 1979 CCH OSHD at p. 28,227. Duncanson did not, however, [*11] show that the cited materials could not have been removed to the dock and hauled away after a short time, or placed in a corner of the barge out of the way of the regular flow of work.

We therefore affirm item 3 of citation 1 except to the extent it concerned tools.

III

We now turn to the assessment of penalties. n3 We find that the violation of 29 C.F.R. 1926.550(f)(1)(iv) was serious within the meaning of section 17(k) of the Act, 29 U.S.C. 666(j). That section states:

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 employee did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

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n3 Section 17(j), 29 U.S.C. 666(i), provides:

(j) The Commission shall have authority to assess all civil penalties provided in that section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

[*12]

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The Commission has held that in order to prove a serious violation it need not be likely that an incident will occur. It is only necessary to prove that if such an incident occurs, the probable result will be serious injury. See, e.g., Andy Anderson, 78 OSAHRC 34/A2, 6 BNA OSHC 1595 (No. 76-4092, 1978). If the crane toppled or slid off the barge and into the water, or tipped over and dropped its oversized load, the probable result would be death or serious injury. In view of this, and inasmuch as Duncanson knew of the unsecured condition of the crane, we find that the crane violation was serious.

We consider the gravity of the crane violation to have been moderate and that of the housekeeping violation to have been low. As to good faith, the record indicates that Duncanson made a conscious effort to correct possible hazards. It has no history of previous violations. As to size, Duncanson is small; it employs more than five but less than twenty persons. Under these circumstances, we assess a $550 penalty for the crane violation, and a $30 penalty for the housekeeping violation.

Accordingly, [*13] we reverse the judge and affirm item 1 of citation 2. With respect to item 3 of citation 1, we affirm the judge in part and vacate the item to the extent that tools were alleged to be scattered around the barge, and reverse the judge in part and affirm the item to the extent that ropes, drifts and other miscellaneous materials were present. Finally, we assess a penalty of $550 for the crane violation and assess a $30 penalty for the housekeeping violation.

SO ORDERED.

FOR THE COMMISSION