“Docket No. 83-0928 SECRETARY OF LABOR, Complainant, v. A.H. BECK FOUNDATION COMPANY, INC., Respondent.OSHRC Docket No. 83-0928DECISIONBefore:\u00a0 BUCKLEY, Chairman, and WALL,Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).OSHA issued a citation alleging that A.H. BeckFoundation Company violated the crane safety standard at 29 C.F.R. ? 1926.550(a)(9).\u00a0 The standard requires that \”[a]cessible areas within the swing radius of therear of the rotating superstructure of the crane . . . shall be barricaded in such amanner as to prevent an employee from being struck or crushed by the crane.\”\u00a0There is no dispute that the swing radius of a machine operated by Beck wasunguarded.\u00a0 Beck argues, however, that the standard does not apply because themachine is not a crane.I.Beck specializes in the drilling of piers for thefoundations of large buildings.\u00a0 On August 18, 1983, it was operating at aconstruction site in San Antonio, Texas, when a compliance officer (\”CO\”) of theOccupational Safety and Health Administration inspected the worksite.\u00a0 The COobserved a machine owned and operated by Beck.\u00a0 The machine had a cab mounted oncrawler tracks, with a boom attached to the front of the cab.\u00a0 It was a NorthwestModel 41, manufactured by the Northwest Engineering Company of Green Bay, Wisconsin.\u00a0 The basic model can be used with any of several different attachments as a crane, adragline, a shovel, or a backhoe.\u00a0 The CO saw the machine lifting reinforcing rods(\”rebars\”) and placing them into the pier holes before the concrete waspoured.\u00a0 He testified that the machine also was used to lift steel casing or liningsinto the holes.\u00a0 The CO thought that the machine was a crane.\u00a0 Although themachine had an attachment for drilling, the CO stated that the basic structure of themachine was that of a crawler crane.Beck’s president testified that the machine was not acrane but a foundation drilling rig.\u00a0 He had originally purchased the Northwest Model41 with dragline attachments and had had the manufacturer make several modifications topermit the machine to operate as a drilling rig.\u00a0 The modifications that were made tothe machine diminished its ability to do precision lifting or lowering, so that it cannotset a load down gently.\u00a0 Mr. Beck testified that the boom on the machine is not the\”basic\” boom, but the boom designed for dragline work. \u00a0Mr. Beck furthertestified that he himself had designed the drilling table for the machine, had bought mostof the components for the drilling attachment, and had built parts of it himself.Administrative Law Judge Dee C. Blythe held that themachine was a \”crane.\”\u00a0 He concluded that under the Commission precedent atthe time, the determining factor in whether the standard applies is the use of themachine.\u00a0 Because Beck’s machine was used to lift rebars and casings and to lowerthem into the pier holes, the judge concluded that it was a crane within the meaning ofthe standard.\u00a0 He also noted that the machine had the configuration of a crawlercrane, with a boom, a cab, and tracks.On review, Beck asks us to reverse the judge’sdecision because the machine’s primary function was drilling pier holes, and any liftingthat it did was merely incidental to that function.\u00a0 Beck relies on the view ofCommissioner Barnako in Concrete Construction Co., 80 OSAHRC 7\/E4, 9 BNAOSHC 1278, 1280 n.4, 1981 CCH OSHD ? 25,156, p. 31,054 n.4 (No. 77-2480, 1981), that amachine is not a crane if its primary use is not as a lifting device.The Secretary argues that the \”primaryfunction\” test urged by Beck is inappropriate.\u00a0 The test should not be whetherlifting is \”primary\” or \”incidental\” because one machine might becovered by the standard while an identical machine doing a different job would not be.\u00a0The Secretary argues that this result is anomalous, since both machines present thesame hazard.\u00a0 The Secretary argues also that the lifting Beck’s machine performed wasnot incidental to the actual drilling operation but was a separate lifting operationperformed after the hole had been drilled.\u00a0 The Secretary also asserts that, despiteits modification for use in drilling, Beck’s machine retained the fundamentalcharacteristics of a crane.\u00a0 The Secretary argues that a machine should not beconsidered outside the coverage of the standard simply because it is rigged to do thingsbesides lift, such as drill.II.After Judge Blythe’s decision was issued, were-examined the test for determining what a \”crane\” is within the meaning ofsection 1926.550.\u00a0 In Lisbon Contractors, Inc., 84 OSAHRC 19\/A2, 11 BNA OSHC1971, 1984-85 CCH OSHD ? 26,924 (No. 80-97, 1984), we observed that the crucial term\”crane\” is not defined anywhere in section 1926.550.\u00a0 To shed light on theproper construction of section 1926.550, we looked to American National StandardsInstitute (ANSI) B30.5-1968, Crawler, Locomotive and Truck Cranes, whichsection 1926.550 four times incorporates by reference.\u00a0 We concluded from the ANSIstandard that a machine is not a crane just because it is sometimes used to liftthings.\u00a0 In concluding that a machine must have the configuration and characteristicsof a crane, as well as be used to perform the functions of a crane, we relied heavily onthe provisions of ANSI B30.5-1968.\u00a0 We do so again.Section I of the introduction to ANSI B30.5-1968 provides:This Code applies to the construction, installation,inspection, maintenance, and operation of jacks; power-operated cranes; crane runways;power-operated and manually operated derricks and hoists; power-operated overhead hoistsand their runways; and slings.This Code does not apply to any crane, derrick, orhoist having a maximum rated capacity of one ton or less, or to railway or automobilewrecking cranes, skip hoists, hoist-like units used for horizontal pulling only, minehoists, conveyors, or to shovels, dragline excavators of back hoes, or to equipmentwithin the scope of USA Standards Committee A92 Mobile Scaffords, Towers, and Platforms.\u00a0Within the above limitations this Code also shall be applied to cranes, derricks,and hoists used on construction work.\u00a0 [Emphasis added.]Thus, if Beck’s machine were still a dragline, it would not be a \”crane\” withinthe purview of the standard.\u00a0 Because Beck’s machine had been extensively modified,however, we must determine whether a preponderance of the evidence shows that thesemodifications converted it into a crane.\u00a0 If the preponderance of the evidence doesnot so show, then the citation must be vacated, for the burden of proving theapplicability of a standard is on the Secretary.\u00a0 See Howard Barthelmass PaintingCo., 81 OSAHRC 84\/E1, 9 BNA OSHC 2160, 2162, 1981 CCH OSHD ? 25,636, pp. 31,978-79(No. 78-5450, 1981).\u00a0 For the following reasons, we are not convinced that Beck’smachine is a crane.Section 5-0.2.1.1 of the ANSI standard defines acrawler crane as \”[a] crane consisting of a rotating superstructure with power plant,operating machinery, and boom, [and] mounted on a base. . . . its function is to hoist andswing loads at various radii.\”\u00a0 Beck’s machine clearly meets two of thesecriteria. \u00a0It has a rotating superstructure with a power plant and is mounted on abase. \u00a0It also has operating machinery but the record does not show that Beck’smachine used or was modified to use operating machinery that cranes are typically equippedwith–brakes, load or hoist blocks, hooks, slings, shackles, etc.\u00a0 See sections5-0.2.2.25 and 5-1.1.1.b.5 of ANSI B30.5-1968.\u00a0 On the contrary, the record showsonly that Beck’s machine had been modified to use, and did use, a drilling rig as itsoperating machinery.\u00a0 Beck’s other modifications merely facilitated the use of thatrig.The Secretary relies heavily on the fact that Beck’smachine has the configuration of a crane because it has a boom.\u00a0 He points to LisbonContractors, where the absence of a boom was one factor in our determination that themachine cited was not a crane.\u00a0 The Northwest Model 41 is a multi-purpose power plantthat is adaptable for use as a crane or for use as machines that are specifically excludedfrom ANSI B30.5-1968.\u00a0 It is therefore not surprising that Beck’s machine has severalof the features of a crane, such as a boom.\u00a0 But while the absence of a boom isdispositive in determining that a machine is not a crane, the presence of a boom does not,by itself, establish that a machine is a crane.\u00a0 Some machines explicitly excludedfrom coverage have booms, for example, draglines.\u00a0 Indeed, Beck’s machine still has adragline boom.\u00a0 Nor does the Secretary’s argument find support in the language ofsection 5.0-1 of the ANSI standard, which provides that the standard applies to crawlercranes \”and any variations thereof which retain the same fundamentalcharacteristics.\”\u00a0 As we understand the word \”retain,\” it means that amachine that starts as a crane and is modified, but keeps the basic characteristics of acrane, remains covered by the standard.\u00a0 Since Beck’s machine started out not as acrane but as a dragline, however, it could not \”retain\” the characteristics of acrane.The Secretary argues that the use of the machine forlifting brings it within the purview of the standard, emphasizing that the lifting done byBeck’s machine was performed separately, after the drilling of the hole had beencompleted.[[1]]\u00a0 The Secretary’s reliance on these facts is misplaced, however, sinceother machinery that is specifically excluded from the coverage of the ANSI standardperforms a lifting function.\u00a0 See ANSI B30.5-1968, Introduction, Section 1,quoted above.\u00a0 As we held in Lisbon, the use of a machine for lifting does notmake it a \”crane\” if it does not have configuration of a crane.The Secretary has argued that we should focus on thehazard posed by a machine rather than operations it is rigged to perform.\u00a0 TheSecretary’s argument would be more persuasive if the ANSI standard, which is incorporatedby reference into the OSHA standard, did not explicitly exclude draglines, backhoes, andpower shovels, which all create the same hazard of swinging superstructure as cranes.\u00a0 The creation of a similar hazard therefore does not determine whether the standardapplies.The Secretary’s brief states in a lengthy footnotethat he \”does not agree that Lisbon Contractors was correctly decided.\”\u00a0In implicitly inviting us to re-examine that decision, the Secretary argues in partthat \”the Commission need not guess at OSHA’s intent and underlying policy decisions[in section 1926.550] since the Secretary has repeatedly stated what that intent is.\”The Secretary’s arguments against Lisbon,however, ignore the only reliable evidence of what the drafters of the standard intended,and fail to present any countervailing contemporaneous interpretation.\u00a0 The Secretaryrelies solely on legal arguments urged by the Solicitor of Labor in this and prior briefs.\u00a0See Investment Company Institute v. Camp, 401 U.S. 617, 626-628 (1971)(counsel’s efforts in litigation are \”hardly tantamount to an administrativeinterpretation\” of a statute); New England Telephone & Telegraph Co. v.Public Utilities Commission, 742 F.2d 1, 11 (1st Cir. 1984)(\”[The FCC’s]) viewshere do not reflect agency policy reached after debate among staff or commissioners.\u00a0 Rather, as far as we can tell, they simply represent the General Counsel’sinterpretation of the statute; they are contained only in his brief.\”)[[2]]Furthermore, the interpretation of the standardadvanced in the brief on behalf of the Secretary fails to provide employers with fairnotice of their obligations under the standard.\u00a0 We may not construe a standard in away that denies employers fair notice.\u00a0 See Diamond Roofing Co. v. OSAHRC,528 F.2d 645, 649 ( 5th Cir. 1976).This case was tried before Lisbon Contractorswas issued.\u00a0 When there is an intervening change in precedent, we normally afford thelosing party the opportunity for a remand.\u00a0 In this case, however, the Secretaryextensively argued the application of Lisbon in his brief but did not seek a remandto present additional evidence.\u00a0 We therefore see no need to delay a finaldisposition of this case.Accordingly, item 1 of citation 1 is vacated.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED:\u00a0 JAN 20 1987 SECRETARY OF LABOR, Complainant, v. A. H. BECK FOUNDATION CO., INC., Respondent.OSHRC DOCKET NO. 83-0928DECISION AND ORDERAppearances:Sandra D. White, Esq., of Dallas, Texas, for the Complainant.William W. Sommers, Esq., of San Antonio, Texas, for the Respondent.PROCEDURAL HISTORY BLYTHE, Judge:Respondent, A. H. Beck Foundation Co., Inc., ischarged with a serious violation of ? 5(a)(2) of the Occupational Safety and Health Actof 1970, 29 U.S.C. ?? 651-678 (\”the Act\”) and the safety standard at 29 CFR1926.550(a)(9) for failure to barricade accessible areas within the swing radius of thecounter-weight of a crawler crane with drilling attachment.\u00a0 A single citation wasissued to respondent August 29, 1983, as the result of an inspection conducted August18-19, 1983, by a safety compliance officer of the Occupational Safety and HealthAdministration (\”OSHA\”) of a workplace at Travis and St. Mary Streets in SanAntonio, Texas, where respondent was drilling piers to support two buildings to beconstructed there.\u00a0 Respondent timely filed notice of contest September 9, 1983, thusinitiating this proceeding before the Occupational Safety and Health Review Commission(\”the Commission\”) under ?10(c) of the Act.\u00a0 Thereafter the Secretary ofLabor (\”the Secretary\”) filed a formal complaint, and respondent filed an answerthereto.\u00a0 Respondent’s answer denied all allegations of the complaint exceptParagraph I, which asserts the jurisdiction of the Commission over the proceeding, andthat part of Paragraph II which states the location and type of respondent’sbusiness.\u00a0 It pleaded affirmatively that its safety standards are in conformity withthose of its industry and are in substantial compliance with the Act; and that the citedstandard is unenforceably vague and does not apprise it of the action, if any, it musttake to comply therewith.\u00a0 However, the central issue, as litigated at the hearingand argued in the posthearing briefs, is whether the machine in question is a\”crane\” subject to the barricading requirements of ? 1926.550(a)(9).\u00a0 Thematter came on regularly for hearing February 24, 1984, in San Antonio.\u00a0 Both partieshave filed posthearing briefs, and respondent submitted proposed findings of fact andconclusions of law.\u00a0 The matter is now ripe for decision.DISCUSSION AND OPINION I.\u00a0 The coverage issueAlthough it does not argue the issue in its brief,respondent’s answer denies the allegations of Paragraph II of the complaint that it isengaged in a business affecting commerce, within the meaning of ? 3(5) of the Act, whichprovides:The term \”employer\” means a person engagedin a business affecting commerce who has employees… \”Commerce,\” according to ? 3(3) of theAct,. . .means trade, traffic, commerce, transportation,or communication among the several states, or between a State and any place outsidethereof, or within the District of Columbia, or a possession of the United States (otherthan the Trust Territory of the Pacific Islands), or between points in the same State butthrough a point outside thereof.In enacting this legislation, the Congress utilizedto the maximum extent the power conferred on it by the commerce clause of theConstitution.\u00a0 It is not necessary for an employer to be engaged directly ininterstate commerce to affect it.\u00a0 He may be \”engaged in a business affectingcommerce\” if he uses materials or equipment manufactured outside the state or even ifhe uses the United States mails or interstate telephone lines.\u00a0 Avalotis PaintingCo., 81 OSAHRC 7\/B1, 9 BNA OSHC 1226, 1981 CCH OSHD ? 25,157 (No. 76-4774, 1981); Brennanv. OSHRC (John J. Gordon Co.), 492 F.2d 1027 (2nd Cir. 1974).The machine involved in the present citation wasmanufactured in Wisconsin (Tr. 47); this alone is enough to \”affect commerce\”under Avalotis and John J. Gordon Co., supra.\u00a0 In addition, theCommission has held that the construction business, per se, affects commercesufficiently to satisfy the requirements of ? 3(5).\u00a0 Clarence M. Jones d\/b\/a C.Jones Co., 83 OSAHRC ___, 11 BNA OSHC 1529, 1983 CCH OSHD ? 26,516 (No. 77-3676,1983).II.\u00a0 The alleged serious violation of 29 CFR1926.550(a)(9) Respondent is charged with a serious violation of 29CFR 1926.550(a)(9) in that:Accessible area(s) within the swing radius of therear of the rotating superstructure of crane(s) were not barricaded in such a manner as toprevent employees from being struck or crushed by the crane:(a) Crawler crane with drilling attachment had nomeans to prevent entry into the swing radius of the counterweight.\u00a0 Locatedapproximately center of excavation.The cited standard provides: ? 1926.550–CRANES AND DERRICKS(a) General requirements(9) Accessible areas within the swing radius of therear of the rotating superstructure of the crane, either permanently or temporarilymounted, shall be barricaded in such a manner as to prevent an employee from being struckor crushed by the crane.\”Crane\” is not defined in the standards, sothe Commission has been called upon several times to decide whether machines whichperformed lifting functions, but were not typical cranes, were required to meet therequirements for cranes.Most of the cases have involved backhoes which wereused primarily for excavating purposes but performed some lifting functions such aslowering pipe into a ditch.\u00a0 Two early cases hold that such backhoes were not craneswithin the ambit of ? 1926.550.\u00a0 Felton Construction Co., 76 OSAHRC 136\/C14;4 BNA OSHC 1817, 1976-77 CCH OSHD ? 21,258 (No. 6759, 1976); Warner Brothers,Inc., 76 OSAHRC 138\/D7, 4 BNA OSHC 1841, 1976-77 CCH OSHD ? 21,257 (No. 8841,1976).\u00a0 Felton and Warner were reversed, however, by Gil Haugand\/b\/a Haugan Construction Co., 79 OSAHRC 105\/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ?24,105 (Nos. 76-1512 and 76-1513, 1979), where the Commission majority held that ?1926.550(a)(1) applied to a farm tractor equipped with a front-end loader to which ashop-made boom had been attached to lift bar joists, stating:We hold that 29 C.F.R. ? 1926.550 applies tomachines used to perform lifting functions usually performed by cranes or derricks,whether the machines were originally designed for that purpose or not.\u00a0 In makingthis determination, we look to the purposes of the Act and of the standard.\u00a0 Thestated purpose of Congress in enacting the Occupational Safety and Health Act, was\”to assure so far as possible every working man and woman in the Nation safe andhealthful working conditions…\” 29 U.S.C. ? 651(b), so the Act and standardsenacted pursuant to it must be liberally interpreted in light of the Act’s remedialpurpose.\u00a0 See Southern Railway Co. v. OSHRC, 539 F.2d 335, 338 (4thCir. 1976).1979 CCH OSHD at p. 29,291.Gil Haugan was followed in Tri-CityConstruction Co., 80 OSAHRC 9\/F12, 7 BNA OSHC 2189, 1980 CCH OSHD ? 24,267 (No.76-4094, 1980) (235 Crawler Caterpillar with rotating superstructure–also described as abackhoe–used to lower pipe into a ditch); and Suffolk County Contractors, Inc., 80OSAHRC 52\/F13, 8 BNA OSHC 1506, 1980 CCH OSHD ? 24,494 (No. 78-4479, 1980) (backhoe usedfor unspecified lifting purposes).In Concrete Construction Co., 81 OSAHRC 7\/D7 9BNA OSHC 1278, 1981 CCH OSHD ? 25,156 (No. 77-2840, 1981), the Commission declined toapply ? 1926.550(a)(9) to a dragline used for dredging, although it piled dredgedmaterial, sometimes moved the piles of material, and, with substantial alterations, couldbe used to lift light loads.\u00a0 The Commission distinguished this case on its factsfrom Gil Haugan and Tri-City, pointing out at that the dragline was notperforming work usually performed by cranes and that the modifications that would enableit to lift light loads would take up to an entire day.\u00a0 Commissioner Barneko alsopointed out in a concurring footnote that even when so modified the dragline could notdeposit loads gently and that there was no evidence the respondent had any intention ofusing the machine in that mode.\u00a0 Respondent relies heavily on this footnote.The machine here involved was specially built fordrilling holes for piers to support buildings under construction, but it was constructedon a multi-purpose chassis known as \”Northwest 41\” by Northwest Engineering Co.,Green Bay, Wisconsin.\u00a0 The manufacturer’s brochure, Exhibit C-1, illustratesconfigurations of the Northwest 41 as a crawler crane, a backhoe, and a dragline.Respondent’s machine has a rotary drilling table and auger suspended from a boom.\u00a0The hydraulically-driven auger drills into the earth as far as 100 feet and is removedperiodically to dislodge the dirt from it.\u00a0 It has a hoisting line and performs otherlifting functions, i.e., placing large steel casings weighing up to severalthousand pounds in the hole to prevent caving and, after the hole is completed, loweringan assembly of reinforcing steel into it preparatory to the pouring of cement (Tr. 52,53).\u00a0 After the concrete is poured, the hoisting cable is used again to pull thecasing (Tr. 54).To Compliance Officer Bert C. Lindquist the machinewas a crawler crane with a drilling attachment (Tr. 27), while Respondent’s owner, A. H.Beck, III, insisted it was not a crane but a machine designed solely or primarily to drillpiers (Tr. 36, 38, 41).\u00a0 Both are well qualified to give an opinion on thissubject.\u00a0 Lindquist, in his 12 years as an OSHA compliance officer, had conductedapproximately 800 inspections, including 500 involving cranes (Tr. 27).\u00a0 His positionat the time of the hearing was with OSHA’s Maritime Compliance Assistance Program inWashington, D.C., dealing mostly with cranes and their certification (Tr. 28).\u00a0 Hehad two years of college training in mechanical engineering (Tr. 5), worked as asuperintendent for stevedoring companies loading and unloading vessels and rail cars, andhad the usual OSHA training (Tr. 6).\u00a0 Beck has a degree in civil engineering and hasbeen in the pier drilling business since 1977 (Tr. 41, 42).\u00a0 He designed the machinein question (Tr. 56).\u00a0 And testified that, unlike a true crane, it could not use theresistance of its engine to permit it to lower heavy loads gently but had only its brakesto prevent a \”free-fall\” (Tr. 39).Beck further testified that it would take two weeksto convert his machine into a true crane and that even then it would not be successful asa lifting machine because the Northwest 41 is not well adapted to that purpose (Tr. 58,60).\u00a0 However, the lifting jobs it regularly performed did not requirealteration.\u00a0 The drilling table was detachable (Tr. 48), but it was not detachedbefore performing the lifting functions above described (Tr. 27).Under Gil Haugen, supra, whether amachine must be treated as a crane depends not on what it is called but on how it is used,and a rotating-superstructure machine used for lifting functions normally performed by acrane must have its swing radius barricaded under ? 1926.550(a)(9).\u00a0 Both Beck andLindquist testified that the machine was used to lift casings and re-bars, and Becktestified that these loads could weigh several thousand pounds (Tr. 52, 53).\u00a0 I findthat this is the normal work of a crane and that this machine is subject to ?1926.550(a)(9).The machine has a rotating superstructure, andLindquist testified without contradiction it formed \”scissor points\” with themachine’s tracks, that a person could get caught therein, and that the result probablywould be death (Tr. 15, 29).\u00a0 He also testified that there was no barricade guardingthe swing radius of the superstructure, that he would have accepted a rope barrier or ahuman guard, and that respondent promised to use a \”human barrier\” but did not(Tr. 14).Respondent contends that ? 1926.550(a)(9), asapplied to its machine, is unenforceably vague.\u00a0 More specifically, it contends that\”barricade\” is not defined, hence it has no way of knowing how to comply.\u00a0This argument was rejected by the Commission in Concrete Construction Co., supra.\u00a0 There the Commission pointed out that ? 1926.203(a) defines a barricade or\”an obstruction to deter the passage of persons or vehicles\” and that ?1926.203 adopted by reference ANSI D6.1-1971, Manual for Uniform Traffic Devices forStreets and Highways, which depicts only physical devices such as cones, drums, saw-horsesand tripod-mounted barriers.Therefore, the Commission held that ? 1926.550(a)(9) was not unenforceably vague and,further, that a signalman would not suffice.\u00a0 Therefore, Lindquist would not havebeen justified if he had accepted a \”human barrier,\” as he said he would have.The operator could not see to the rear, and neithercould a \”spotter\” positioned in front (Tr. 12).Respondent’s superintendent admitted to Lindquistthat he knew of a fatality resulting from a similar situation (Tr. 15). \u00a0 Thisknowledge is imputable to respondent.The next question is whether employees were exposedto the hazard.\u00a0 Since respondent created the hazard, it is responsible for exposureof employees of other contractors on this multi-employer worksite as well as itsown.\u00a0 Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD? 20,690 (Nos. 3694 and 4409, 1976).\u00a0 Actually, there is proof both ways.Beck testified that three of his employees (asuperintendent, an oiler and a stem man or front-end man) \”stay real close to themachine all day long\” and are \”around and about the machine constantly\”(Tr. 54,55).Lindquist, from a distance, saw one man jump atop apile of lumber to escape the rear of the machine when it backed up, but he did not learnthe man’s identity or employer (Tr. 9).\u00a0 The machine was in the middle of anexcavation measuring about 300 x 500 feet which was crowded with men and equipment (about60 men, 5 concrete trucks, a bulldozer, and a backhoe), and other subcontractors’employees were criss-crossing the area (Tr. 13, 17).\u00a0 These employees at least hadaccess to the hazard, and that is sufficient.\u00a0 Gilles & Cotting, Inc., 76OSAHRC 30\/D9, 3 BNA OSHC 2009, 1975-76 CCH OSHD ? 20,448 (No. 504, 1976); WilliamsEnterprises, Inc., 79 OSAHRC 4\/B5, 7 BNA OSHC 1015, 1979 CCH OSHD ? 23,279 (No.14748, 1979).III.\u00a0 The appropriate penalty.Section 17(j) of tie Act requires the Commission, inassessing penalties, to consider the gravity of the violation and the employer’s size,good faith and history of previous violations.\u00a0 These factors need not be accordedequal weight, but the gravity is usually of greater significance than the others.\u00a0 ColonialCraft Reproductions, 72 OSAHRC 11\/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD ? 15,277(No. 881, 1972).\u00a0 Elements to be considered in determining gravity include the numberof employees exposed to the risk of injury, duration of the exposure, precautions takenagainst injury, and the degree of probability of occurrence of an injury.\u00a0 NationalRealty & Construction Co., Inc., 72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD? 15,188 (No. 85, 1972) rev’d on other grounds, 489 F.2d 1257 (D.C. Cir., 1973).The Secretary has proposed a penalty of $160 in thiscase.\u00a0 After considering the statutory criteria, I find this penalty appropriate.FINDINGS OF FACTOn the basis of the foregoing Discussion and Opinionand all creditable evidence of record, the following findings of fact are made:1.\u00a0 The respondent is engaged at San Antonio,Texas, in a branch of the construction industry known as pier drilling in which it drillsholes for concrete piers to support large buildings.\u00a0 It uses in this work a pierdrilling machine manufactured in the state of Wisconsin.\u00a0 Respondent is engaged in abusiness affecting commerce within the meaning of ? 3(5) of the Act.2.\u00a0 On August 18-19, 1983, respondent wasdrilling piers for two buildings at Travis and St. Mary Streets in San Antonio when itsworkplace was inspected by an OSHA compliance officer.\u00a0 Its pier drilling machine wasbeing used in the center of an excavation measuring approximately 200 x 500 feet which wascrowded with other machinery, including 5 concrete trucks, a bulldozer, and a backhoe, andabout 60 employees of other contractors.\u00a0 Respondent had three employees workingclosely around the machine in addition to the operator.3.\u00a0 Respondent’s pier drilling machine was builton a Northwest 41 chassis which is available in several configurations for use as a crane,a backhoe, and a dragline.\u00a0 Respondent’s machine has a boom from which is suspended ahydraulically-powered auger capable of drilling holes to a depth of over 100 feet and 18inches to 8 feet in diameter.\u00a0 It has a rotating superstructure, or\”house\”, mounted on continuous tracks like those of a conventional crawlercrane.4.\u00a0 Respondent’s pier drilling machine was usedto perform lifting functions normally performed by a crane, including the placing ofcasings and reinforcing steel in the drilled holes and pulling the casing after pouring ofconcrete.\u00a0 This involved lifting of loads of up to several thousand pounds.5.\u00a0 As used by respondent, the swing radius ofthe machine was not barricaded in any manner.\u00a0 The rotating superstructure and thetracks provided scissor points in which an employee could be crushed.\u00a0 There was asubstantial probability that death or serious physical injury could be suffered by anemployee caught in one of these scissor points.6.\u00a0 Respondent knew or in the exercise ofreasonable diligence could have known of the existence of the hazard caused by thesescissors points.7.\u00a0 A penalty of $160 is appropriate. CONCLUSIONS OF LAWOn the basis of the foregoing findings of fact andthe entire record, the following conclusions of law are made:1.\u00a0 The Commission has jurisdiction of theparties and of the subject matter of this proceeding.2.\u00a0 On August 18 and 19, 1983, respondent was inserious violation of ? 5(a)(2) of the Act and the standard at 29 CFR 1926.550(a)(9)ORDEROn the basis of the foregoing findings of fact andconclusions of law, it is ORDERED that:1.\u00a0 Item 1 of citation 1, issued to respondentAugust 29, 1983, for serious violation of ? 5(a)(2) of the Act and the standard at 29 CFR1926.550(a)(9), is AFFIRMED and a penalty of $160 is ASSESSED.2.\u00a0 Respondent’s proposed findings of fact and conclusions of law, to the extent thatthey are inconsistent with this Decision and Order, are DENIED.DEE C. BLYTHE Administrative Law JudgeDated:\u00a0 June 1,1984FOOTNOTES: [[1]] In his brief, the Secretary specifically statesthat he does not contend that the drilling operation was a function normally performed bycranes.\u00a0 He is therefore apparently conceding that, at the times the machine wasbeing used to drill, it was not a crane. This concession also suggests that Beck’s machineis not a crane.In a footnote to his brief, the Secretary brieflycites section 5-0.1 of ANSI B30.5-1968.\u00a0 That section provides, \”Some basicmachine types within this scope are usually convertible for excavating work and other usesnot considered to be lifting service.\u00a0 The requirements of this volume are applicableonly to machines when used as lifting cranes.\”\u00a0 The provision, however, suggeststhat the machine must be \”converted\” in some manner between service as a liftingcrane and other service.\u00a0 The record here does not show that any conversion wasperformed between the drilling operation and the use of the machine to lift therebars.\u00a0 It would be anomalous to suggest that this machine was subject to cranestandards during one portion of its work but not during another part of the samecontinuous operation.[[2]] See also Alaniz v. Office ofPersonnel Management, 728 F.2d 1460, 1465 (Fed. Cir. 1984); Pitzak v. Office ofPersonnel Management, 710 F.2d 1476, 1479 n.2 (10th Cir. 1983); Ames v.Merrill, Lynch, Pierce, Fenner & Smith, 567 F.2d 1174, 1177 n.3 (2d Cir. 1977).”