TRI-CITY CONSTRUCTION CO.  

OSHRC Docket No. 76-4094

Occupational Safety and Health Review Commission

January 31, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Richard D. Rhyne, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Alan M. Wienman is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   At issue is a citation item alleging a non-serious violation of the Act for failure to comply with 29 U.S.C. §   1926.550(a)(9) n1 in that accessible areas within the swing radius of the rear of the rotating superstructure of a 235 Crawler Caterpillar were not barricaded so as to protect employees from being struck by the superstructure of the machine. The judge concluded that section 1926.550(a)(9) does not apply to the cited machine and therefore vacated the citation item.

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n1 The standard provides:

Subpart N - Cranes, Derricks, Hoists, Elevators, and Conveyors

§   1926.550 Cranes and derricks.

(a) General requirements.

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(9) Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

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Chairman Cleary granted the petition for discretionary review filed by the Secretary in which the Secretary takes exception to the judge's determination that the cited standard is not applicable to the machine at issue. n2 Respondent has stipulated that it did not comply with the cited standard.   However, Respondent maintains, as it did below, that the cited standard is inapplicable.   Thus, the sole issue before us on review is whether section 1926.550(a)(9) applies to a 235 Crawler Caterpillar that was used by Respondent for lowering pipe sections into a trench as well as for excavating and removing earth material from a trench.

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n2 Former Commissioner Moran subsequently directed review of this case "for error . . . to determine whether the findings were mandated by the legal precedent cited in said decision."

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We hold that section 1926.550(a)(9) is applicable to the machine in question and that Respondent therefore failed to comply with [*3]   the cited standard.

On August 24, 1976, a compliance officer from the Occupational Safety and Health Administration (OSHA) inspected Respondent's worksite north of Highway 54 in Nevada, Missouri.   As a result of that inspection, the Secretary issued a citation to Respondent alleging three nonserious violations of the Act.   The Secretary proposed no penalty for any of the alleged violations, and he ordered abatement of each item by August 30, 1976.

Respondent filed a timely notice contesting Item No. 2 and Item No. 3. n3 Item No. 2 of the citation alleged noncompliance with section 1926.550(a)(9) in that:

Accessible areas within the swing radius of the rear of the rotating superstructure of crane(s) were not barricaded in such a manner as to prevent employees from being struck or crushed by the crane:

a) 235 Crawler Caterpillar excavating at north end of trench.

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n3 Item No. 3 is not before us on review.   Respondent stipulated that it committed the violation alleged in Item No. 3.   The judge thus affirmed that item.

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In paragraph V(a) of his complaint, the Secretary restated the allegations in Item No. 2 and added the allegation of employee exposure.   Paragraph V(a) reads, in pertinent part, as follows:

Respondent failed to barricade accessible areas within the swing radius of the rear of the rotating superstructure of 235 Crawler Caterpillar excavating at north end of trench in such a manner as to prevent employees from being struck or crushed by the crane, in violation of 29 CFR 1926.550(a)(9).   At least one of respondent's employees was affected by this violation. . . .

  The pertinent part of the stipulation reads as follows:

Respondent admits the allegations of complainant's complaint except that respondent does not agree to the characterization of the machine in question in V(a) (arising from item 2 of the citation for other than serious violations in this case), as a "crane."

The parties agree that the machine in question is a 235 Crawler Caterpillar which was being used for excavation [*5]   and for removing earth material from a trench, and to lower pipe sections into a trench.

The parties stipulate that the compliance officer who made the inspection from which this case arose, Mr. Stino DeGrado, would testify as follows:

He has had five years' experience as a Missouri state safety inspector.   He has completed the basic OSHA compliance courses, special construction and injury investigation courses, numerous seminars, and on-the-job training.   During his four years with Occupational Safety and Health Administration, he had made 1600-1700 construction inspections, 200-300 of which involve excavations, all of which were in Missouri and Kansas.   He would further testify that, basing his opinion on his experience and training, that the hazard presented to respondent's employees by the respondent's failure to barricade the rear swing radius of the 235 Crawler Caterpillar is the same as the hazard presented by the unbarricaded rear swing radius of a crane.

The parties do not agree on the application of 29 CFR 1926.550(a)(9) to the machine in question here.   Complainant contends that, since the caterpillar here was removing earth from and installing pipe sections in the excavation [*6]   and presented the same hazard when unbarricaded, it would be covered by that standard.   Respondent contends that, since the language of the standard uses the word "crane" that a caterpillar would not be subject to the requirements of 29 CFR 1926.550(a)(9).   The parties request ten days in which to submit brief written arguments on this point.

Both parties subsequently submitted briefs on the issue of the standard's applicability. No hearing was held.

Limiting his consideration to the question of the standard's applicability, the judge indicated that the disposition of that issue depends on "whether the machine is denominated a 'crane' within the meaning of the regulation" cited.   Judge Wienman determined that the 235 Crawler Caterpillar was a backhoe or a related type of excavating machine used to lift and lower pipe. n4 He concluded that the cited machine was not a crane, and, therefore, the standard at section 1926.550(a)(9) is not applicable.   Accordingly, Judge Wienman vacated the item in the citation alleging noncompliance with section 1926.500(a)(9).

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n4 The judge noted that Respondent labeled the machine a "backhoe" in its brief, and that dictionary definitions seem to support such a label.   Although not mentioned by the judge, the Secretary referred to the machine as a "tractor" in his brief.

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The judge based his conclusion solely on Felton Construction Co., 76 OSAHRC 136/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD P21,258 (No. 6759, 1976), appeal withdrawn Docket No. 76-3728 (9th Cir. April 26, 1977), and Warner Brothers, Inc., 76 OSAHRC 138/D7, 4 BNA OSHC 1841, 1976-77 CCH OSHD P21,257 (No. 8841, 1976), appeal withdrawn Docket No. 77-1018 (1st Cir. March 9, 1977).   In Felton, the Secretary cited an employer operating a Bucyrus-Erie backhoe for noncompliance with a number of standards contained in section 1926.550, including section 1926.550(a)(9).   In its decision, a divided Commission held that section 1926.550(a)(9), as well as three other cited standards under section 1926.550, does not apply to a backhoe that may at times function as a crane. The majority of the Commission approvingly quoted that portion of the judge's decision below which stated:

The fact that a backhoe may be incidentally used from time to time to lower pipe into ditches does not convert it from an excavating machine into a crane and make applicable a standard otherwise not applicable.

76   [*8]   OSAHRC at D2, 4 BNA OSHC at 1818, 1976-77 CCH OSHD at p. 25,553. In Warner Brothers, the cited machine was a backhoe with a rotating superstructure and a lifting ring.   The Commission followed Felton in concluding that section 1926.550(a)(9) was not applicable to the backhoe.

In the case before us, the Secretary argues on review that the cited standard does apply to Respondent's machine. He notes that, although the 235 Crawler Caterpillar was used in excavation work, it also was used in the same manner as a crane when it lifted and lowered pipe. The Secretary asserts that, when the machine was lifting pipe, the machine's rotating superstructure posed the same hazards as those presented by a crane's rotating superstructure. The Secretary contends that it is therefore reasonable to apply the standard to Respondent's machine. The Secretary cites parts of Chairman Cleary's dissenting opinion in Felton as support for that position.   Furthermore, the Secretary cites Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974) and Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974), for the proposition that OSHA standards should be interpreted   [*9]   to achieve, rather than hamper, the purposes of both the Act and the standards promulgated pursuant to it.

Respondent contends on review that the judge correctly held that the cited standard was inapplicable in accordance with Commission precedent.   Respondent asserts that Brennan v. Southern Contractors Service, supra, and Brennan v. OSHRC (Gerosa, Inc.), supra, are distinguishable from the instant case in that in both of those cases the cited standards clearly applied to the conditions described.   Respondent cites Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645 (5th Cir. 1976) as a case analogous to the instant one because in that case the Secretary contended that section 1926.500(d)(1), which mandates guarding of open-sided floors or platforms by standard railings, applies to open-sided roofs as well.   In its decision, the U.S. Court of Appeals for the Fifth Circuit reversed the Review Commission's conclusion that the standard applied, stating that an agency cannot interpret a standard to mean what it intended but failed to adequately express in the language of the standard.

We recently considered the issue of the applicability of the standards under section [*10]     The employer in that case was cited for noncompliance with section 1926.550(a)(1) n5 for failure to have documented load limitations assigned by a qualified engineer for a tractor with a shop-built boom. More particularly, the machine at issue in Gil Haugan was a farm tractor with a forklift attachment on the front.   A metal bar was attached to the forklift.   The bar extended forward and was used to lift bar joists about ten feet and place them across steel beams.   We determined that the machine used by Gil Haugan to lift bar joists presented the same potential hazard due to undocumented load limitations as a crane. We expressly overruled Felton and stated:

We hold that 29 C.F.R. §   1926.550 applies to machines used to perform lifting functions usually performed by cranes or derricks, whether the machines were originally designed for that purpose or not . . . .

. . . In our view, whenever a piece of machinery performs lifting functions normally performed by a crane or derrick, it must comply with those safety standards that apply to cranes and derricks.

  [*11]   Slip opinion at pp. 10-11.

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n5 The standard reads as follows:

Subpart N - Cranes, Derricks, Hists, Elevators, and Conveyors

§   1926.550 Cranes and Derricks.

(a) General requirements. (1) The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks. Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded.   Attachments used with cranes shall not exceed the capacity, rating, or scope recommended by the manufacturer.

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In the instant case, it was stipulated by the parties that the machine at issue was used to lower pipe sections into a trench. Under Gil Haugan, section 1926.550(a)(9) applies because the machine performed the lifting function of a crane. Since the test for applicability of section 1926.550 is whether the machine [*12]   is used to perform the lifting functions of a crane, distinctions in the specific forms of machines so used are irrelevant.   We therefore reverse Judge Wienman's conclusion that section 1926.550(a)(9) is inapplicable to the 235 Crawler Caterpillar.

In the stipulation, Respondent admitted the allegations in the Secretary's complaint, i.e., that Respondent failed to comply with section 1926.550(a)(9) by not barricading accessible areas within the swing radius of the rear of the cited machine's rotating superstructure. Furthermore, Respondent admitted in the stipulation that at least one employee was exposed to the hazard. Therefore, having concluded that section 1926.550(a)(9) applies to Respondent's machine, we affirm Item No. 2 of the citation.

Accordingly, it is ORDERED that Judge Wienman's determination that section 1926.550(a)(9) is not applicable to Respondent's 235 Crawler Caterpillar is reversed.   We hold that Respondent committed a nonserious violation of the Act by failing to comply with section 1926.550(a)(9).   As noted above, the Secretary proposed no penalty for the alleged violation.   Having considered the criteria set forth in section 17(j) of the Act, 29 U.S.C.   [*13]   §   666(i), i.e., the size of the employer's business, the gravity of the violation, the employer's good faith, and the employer's history of previous violations, we assess no penalty for the violation.   However, we mandate immediate abatement.  

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, Dissenting:

I dissent from my colleagues' conclusion that Respondent violated 29 C.F.R. §   1926.550(a)(9). n1 I would vacate this citation item because Respondent's 235 Crawler Caterpillar is not a crane and therefore is not subject to the cited standard which applies only to cranes and derricks.

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n1 See footnote 1 of the majority opinion for the text of the cite standard.

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My colleagues conclude that any machine which performs lifting functions normally performed by a crane is a crane for purposes of the cited standard.   In determining whether a particular machine is a crane, they do not consider the specific from of the machine nor any functions other than lifting which the machine may perform.

I disagree with my colleagues' definition of a [*14]   crane. In Gil Haugan, d/b/a Haugan Construction Co., 79 OSAHRC    , 7 BNA OSHC 2004, 2009, 1979 CCH OSHD      (Nos. 76-1512 & 76-1513, 1979), I stated that a crane is a lifting device with the additional capacity of moving a load laterally.   I further noted that a crane has both a boom and a rotating superstructure.

In my opinion a vehicle which does not have a boom and rotating superstructure is not transformed into a crane merely because it performs some lifting functions.   Therefore I adhere to the Commission decision in Felton Construction Co., 76 OSAHRC 136/C14, 4 BNA 1817, 1976-77 CCH OSHD P21,258 (No. 6759, 1976).   In Felton, Respondent was cited for violations of 29 C.F.R. §   1926.550, including the standard at issue here, 29 C.F.R. §   1926.550(a)(9).   The machine involved in the citation was a backhoe and was used for moving pipe as well as for digging a trench. After noting that the backhoe did not have all the component parts of a crane, the Commission held that the mere performance by an excavating machine of lifting functions does not transform the machine into a crane.

In the present case Respondent's 235 Crawler Caterpillar had a rotating superstructure;   [*15]   however, the record does not establish the machine had a boom. Moreover, although the machine performed lifting functions, it also engaged in excavation of a trench. Therefore, I agree with the judge that Respondent's Caterpillar may be likened to a backhoe. As such the machine is similar to the one in Felton. Accordingly, I would agree with the judge that Respondent's 235 Crawler Caterpillar is not a crane and would vacate the citation alleging a violation of 29 C.F.R. §   1926.550(a)(9).