CORNELL & COMPANY, INC.

OSHRC Docket No. 78-5956

Occupational Safety and Health Review Commission

February 26, 1982

[*1]

Before, ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Roger D. Susanin, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Seymour Fier is before the Commission pursuant to 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"). Judge Fier affirmed a citation alleging that Cornell & Company, Inc., violated section 5(a)(1) n1 of the Act because "[e]mployees were allowed to work under a beam suspended above [their] heads . . . [while] installing [a] lower beam suspended from [the] same hook. . . ."

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n1 Section 5(a)(1), 29 U.S.C. 654(a)(1), provides that "[e]ach 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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In response to Cornell's petition [*2] for discretionary review, former Commissioner Barnako directed review on the following issues:

(1) Whether the judge erred in concluding that the provisions of the New Jersey Administrative Code, specifically subchapter 20.16.5(5) of the Construction Safety Code, establish recognition of a hazard within the meaning of 29 U.S.C. 654(a)(1).

(2) Whether a violation of 29 U.S.C. 654(a)(1) can be found in view of the provisions of 29 C.F.R. 1926.550(b)(2).

The parties are also requested to address the following question:

Whether the provisions of ANSI standard B-30.5 noted in Respondent's Memorandum in Support of Petition for Review are not mandatory and, if those provisions do not impose mandatory requirements, whether such fact constitutes a determination by the Secretary of Labor that the work practices in issue are not hazardous, so that a citation alleging violation of 29 U.S.C. 654(a)(1) is improper.

Because we conclude that 29 C.F.R. 1926.550(b)(2) applies to the hazard cited by the Secretary of Labor, we vacate the citation under section 5(a)(1). n2

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n2 Because we conclude that the citation to 5(a)(1) was inappropriate, we do not reach the first directed issue, concerning the Secretary's proof of a recognized hazard under section 5(a)(1).

[*3]

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Section 1926.550(b)(2) provides that "[a]ll crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes." Section 5-3.2.4(b) of ANSI B30.5-1968 provides that "[n]o person should be permitted to stand or pass under a load on a hook." It appears that a truck crane was being used in this case. n3 Also, because the Secretary's concern was that Cornell's employees who were installing the lower of two beams suspended from the same hook were standing under the upper beam, the hazard brought under section 5(a)(1) is the same one covered by section 1926.550(b)(2) and ANSI section 5-3.2.4(b). Accordingly, there is a standard which applies to the hazard cited under section 5(a)(1) in this case.

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n3 Respondent's vice president testified that the facts in this case were similar to those in an earlier case in which Respondent was cited for violating section 5(a)(1). The citation, which Respondent placed in evidence (Exh. R-3), alleged that a truck crane was being used. Also, the judge's decision, which Respondent placed in evidence (Exh. R-1), indicates that the Secretary's evidence in that case was that Respondent was using a truck crane. The citation was vacated because the Secretary failed to establish a recognized hazard. When this evidence was presented at the hearing in this case, Respondent had already raised the possibility that a standard, 1926.550(b)(2), applies. However, the Secretary offered no rebuttal to the vice president's testimony and Respondent's exhibits. Moreover, the Secretary does not contend that the crane was not a type covered by 1926.550(b)(2). Therefore, on the basis of Respondent's evidence, we find that the crane used in this case was a truck crane.

[*4]

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Citation to section 5(a)(1) is inappropriate where a standard applies to the hazard in the case. Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979), citing Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD P16,345 (No. 1046, 1973). Because ANSI section 5-3.2.4(b) applies to the hazard in this case, the standard incorporating this ANSI provision, section 1926.550(b)(2), preempts section 5(a)(1). See A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 1980 CCH OSHD P24,840 (No. 76-406, 1980). Accordingly, citation to section 5(a)(1) in this case was inappropriate and the citation must be vacated. SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The majority decision is dependent on one critical fact - the type of crane used by Cornell at this worksite. Unless the crane is a crawler, locomotive or truck crane, 29 C.F.R. 1926.550(b)(2) does not apply. n1 There is no evidence in the record that Cornell's crane is a truck crane, or a crawler or locomotive crane. My colleagues [*5] essentially acknowledge that there is no probative evidence on this point because they state, "It appears that a truck crane was being used in this case." Slip op. at 2 (emphasis added). Factual issues, however, must be decided on the basis of record evidence.

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n1 1926.550 Cranes and derricks.

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(b) Crawler, locomotive, and truck cranes.

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(2) All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.

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The majority's inference in this case is predicated on a prior citation issued to the Respondent for a section 5(a)(1) violation at a different construction worksite involving a truck crane. Based on the testimony of the Respondent's vice president that these cases are "similar", the majority concludes that the crane used at this worksite must be a truck crane because a truck crane was used at the other [*6] worksite. Reasonable inferences may be drawn from circumstantial evidence, i.e., "circumstances having been found by experience so associated with that fact that in the relation of cause and effect they lead to a satisfactory conclusion." 1 JONES ON EVIDENCE 1.3 at 4 (6th ed. 1972). However, in the absence of additional evidence linking the characteristics of the cranes or the conditions of use together, the inference in this case bears no relation to fact or experience. n2 There is no reasonable association between the type of crane used at one construction site and those used at another site without additional evidence. In illustrative example of circumstantial evidence is given in JONES ON EVIDENCE:

[W]hen footprints are discovered subsequent to a recent snow, it is proper to infer that some animated being passed over the snow after it fell; and from the form and number of the footprints it can be determined whether they are those of a man, a bird or a quadruped.

Id. Regrettably, the crane in this case left no tracks in the snow or imprint on the record. The only "satisfactory conclusion" sought by the majority in this case is a factual basis to apply the Commission's [*7] precedent in A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 1980 CCH OSHD P24,840 (No. 76-406, 1980). Unfortunately, there is no evidentiary basis for my colleagues' conclusion that "there is a standard which applies to the hazard cited under section 5(a)(1) in this case."

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n2 Moreover, the absence of any rebuttal by the Secretary to the Respondent's evidence regarding the previous citation does not affirmatively establish or support any inference concerning the identity of the crane.

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The majority's legal conclusion is also untenable. The majority concludes that the Secretary will not be permitted to prove an allegation that Cornell exposed its employees to serious, recognized hazards prohibited by section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), because a specific standard covers the working conditions involved here. However, no such standard applies. An occupational safety and health standard is expressly defined under the Act as "a standard which requires conditions . . . reasonably [*8] necessary or appropriate to provide safe or healthful employment and places of employment." Section 3(8) of the Act, 29 U.S.C. 652(8). All that 1926.550(b)(2) does is to incorporate by reference certain applicable requirements in ANSI B30.5-1968. See note 1 supra. The ANSI provision said to be applicable by the majority, section 5-3.2.4(b), is not a requirement. n2 It is merely advisory. n3 Therefore it is not an applicable standard nor a requirement incorporated by reference in the OSHA standard. It does not preclude the Secretary from citing the alleged hazards under section 5(a)(1) of the Act. See A. Prokosch & Sons Sheet Metal, Inc., supra, 8 BNA OSHC at 2082, 1980 CCH OSHD P24,840, p. 30,630 (No. 76-406, 1980) (Cottine, Commissioner, dissenting).

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n2 Section 5-3.2.4(b) provides: "No person should be permitted to stand or pass under a load on the hook."

n3 ANSI B30.5-1968, Introduction, Section V, states:

Mandatory rules of this Code are characterized by the use of the word "shall." If a rule is of an advisory nature it is indicated by the use of the word "should" or is stated as a recommendation.

[*9]

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