CONCRETE CONSTRUCTION COMPANY

OSHRC Docket No. 77-2840

Occupational Safety and Health Review Commission

January 30, 1981

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Roger L. Sabo, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Charles K. Chaplin is before the Commission for review under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision Judge Chaplin vacated a citation issued by the Secretary of Labor ("the Secretary"). This citation, as amended by the complaint, alleged that Respondent, Concrete Construction ("Concrete Construction"), was in serious violation of the Act for failure to comply with the construction standard published at 29 C.F.R. 1926.550(a)(9). n1 The Secretary petitioned for review of the judge's decision, and the petition was granted by Chairman Cleary. For the reasons that follow the decision of the judge is affirmed.

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n1 29 C.F.R. 1926.550(a)(9) provides:

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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I

The machine in question, a Bucyrus-Erie 61-B, was in use on Concrete Construction's worksite to excavate and reposition soil in a dredging operation. Specifically, the equipment was being used to remove dirt from the bottom of a river. The excavated material was placed directly in front of the equipment so as to create a temporary roadway extending out into the water. During the inspection the compliance officer observed the equipment moving material from its left side to the front. Both the compliance officer and Respondent's oiler, in characterizing thert actions, stated that the equipment would lift or "hoist" the material contained in the bucket.

All the witnessess agreed that in order to perform this work the machine had been rigged as a "dragline" which enabled the operator to dredge and place excavated material by extending a "drag" bucket into the river and then hauling the bucket back toward the operator. In addition, Respondent's safety officer testified that the machine, with no changes in its rigging other than the addition of a lifting device, could be used to lift light loads up [*3] to about 4000 pounds. He further stated however, and it is unrebutted, that in its present configuration the machine could only discharge a load by dropping it from a height. The equipment would have to be rerigged to enable it to set a load down on the ground gently. Respondent's witnesses consistently stated that in order to be operated as a crane, the equipment would have to be substantially modified. n2

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n2 The necessary modifications would include alterations in the number and location of the cables supporting the boom and load and the installation of additional pulleys. Depending upon the load capacity desired, the framing members of the equipment might also have to be changed. To implement these modifications could require as much as an entire day.

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Judge Chaplin concluded that the machine was not a crane, and, therefore the cited standard, 29 C.F.R. 1926.550(a)(9), was not applicable. He reasoned that the principal function of the dragline was dredging as distinguished from a crane whose only function [*4] is to lift. The judge relied on the Commission decision in Felton Construction Co., 76 OSAHRC 136/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD P21,258 (No. 6759, 1976) ("Felton"), in which a divided Commission held that section 1926.550(a)(9) does not apply to a backhoe that may at times lift and lower pipe into a trench.

II

A divided Commission overruled Felton in Gil Haugan d/b/a Haugan Construction Co., 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD P24,105 (Nos. 76-1512 & 76-1513, 1979) ("Gil Haugan"), holding that section 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.

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[W]henever a piece of machinery performs functions normally performed by a crane or derrick, it must comply with those safety standards that apply to cranes and derricks.

8 BNA at 2007, 1979 CCH OSHD at p. 29,291. We conclude that the standard at section 1926.550(a)(9) is not applicable to the dragline at issue and thus vacate the citation.

The facts of this case distinguish it from Gil Haugan, supra. In Gil Haugan a farm tractor with a fork lift [*5] attachment was being used to lift and place steel beams. The machine in that case was thus engaged in lifting functions usually performed by cranes. On the other hand, the dragline in use by Concrete Construction was engaged in the dredging of soil from a river bed and placement of that soil in front or to the side of the dragline. n3 On these facts we find that the dragline in use by Concrete Construction was not performing a function usually performed by cranes. Thus, consistent with the holding of Gil Haugan, we regard as determinative the use to which a particular piece of machinery is put. Whether a particular piece of equipment performs lifting operations at other times or can do so as an alternative function is not dispositive. n4

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n3 This case also is distinguishable from the situation in Tri-City Constr. Co., 80 OSAHRC    , 7 BNA OSHC 2189, 1980 CCH OSHD P24,267 (No. 76-4094, 1980), where a 235 Crawler Caterpillar, generally regarded as a backhoe, was used to lift and lower pipe into an excavation.

n4 Commissioner Barnako concurs in this result. Commissioner Barnako has said in dissenting from prior decisions interpreting the provisions of section 1926.550, that a crane is commonly understood to be a lifting device equipped with a boom and having the additional capability of moving a hoisted load laterally through the use of a rotating superstructure. E.g., Tri-City Constr. Co., supra; Gil Haugan d/b/a Haugan Constr. Co., supra. In this case, Commissioner Barnako notes that unlike prior decisions, the machine in issue has both a boom and a rotating superstructure. Nevertheless, the machine is not a lifting device as that term is used to define a crane. Commissioner Barnako notes that the judge properly found any lifting or hoisting functions the machine may have performed during its use on Respondent's worksite were incidental to its primary function, the excavation and relocation of soil. Furthermore, the record indicates that whatever incidental lifting functions might be performed, they would not be accomplished in a manner characteristic of a crane because as rigged the equipment was not capable of slowly lowering a hoisted load so as to deposit it on the ground. There is no evidence that on the worksite in issue the equipment ever had been rigged and used as a crane. Furthermore, there is no evidence that Respondent had any intention of undertaking the extensive modifications necessary to convert the equipment to perform all of the functions of a crane. Commissioner Barnako is of the view that occasional or incidental use of the equipment at issue to perform some but not all the functions of a crane is not a sufficient basis on which to apply to such equipment standards which are expressly limited to cranes.

[*6]

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Accordingly, the judge's decision vacating the citation is affirmed.

SO ORDERED.