“SECRETARY OF LABOR,Complainant,v.AUSTIN BRIDGE COMPANYRespondent.OSHRC DOCKET NO. 85-1061_ORDER_The Commission approves the parties’ Stipulation and SettlementAgreement. The Commission approves the settlement regarding subitem 1band thus vacates the item. The Commission also affirms theAdministrative Law Judge’s decision vacating subitem 1a.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: December 19, 1986————————————————————————SECRETARY OF LABOR,Complainant,v.AUSTIN BRIDGE COMPANY,Respondent.OSHRC DOCKET NO. 85-1061_STIPULATION AND SETTLEMENT AGREEMENT_I.The parties stipulate as follows:(a) As a result of an accident at respondent’s jobsite on July 11, 1985,the Occupational Safety and Health Administration (OSHA) investigatedrespondent’s workplace and issued to respondent a citation which allegedviolations of 29 CFR 1926.550(a)(1) and 29 CFR 1926.21(b)(2).(b) On September 10, 1985, Austin filed its notice of contest.(c) On March 28, 1986, OSHRC Judge Dee C. Blythe issued a decision inwhich he found that respondent did not violate 29 CFR 1926.550(a)(1) and29 CFR 1926.21(b)(2).(d) On May 27, 1986, the Secretary petitioned for review that portion ofJudge Blythe’s decision on the issue of whether respondent violated 29CFR 1926.550(a)(1). The Review Commission directed review on May 28,1986 and thereafter, on September 30, 1986, it issued a briefing order.No petition for review was filed by the Secretary concerning JudgeBlythe’s decision vacating 29 CFR 1926.21(b)(2) and it became,therefore, final as a matter of law.III.The Secretary of Labor and Austin Bridge Co., in order to conclude thismatter without the necessity of further litigation or review, agree thatthe Secretary, by the filing of this document with the ReviewCommission, withdraws his petition for review and the citation alleginga violation of 29 CFR 1926.550(a)(1) and that the case is hereby closed.IV.The Secretary and respondent agree that each party shall bear its own costs.V.Respondent agrees to post this Stipulation and Settlement Agreement inaccordance with Commission Rule 7.EUGENE A. LOPEZAttorney for the SecretarySTEVEN R. MCCOWNJenkens & GilchristAttorney for RespondentDated this 21 day of November 1986.————————————————————————SECRETARY OF LABOR,Complainant,v.AUSTIN BRIDGE CO.,Respondent.OSHRC DOCKET NO. 85-1061_DECISION AND ORDER_Appearances:Robert A. Fitz, Esq., of Dallas, Texas, for the complainant.Steven R. McCown, Esq., of Dallas, Texas, for the respondent.PROCEDURAL HISTORYBLYTHE, Judge:Ruperto Solis suffered traumatic asphyxiation July 11, 1985, when acrane boom he was dismantling fell on him. A compliance officer (\”CO\”)of the Occupational Safety and Health Administration (\”OSHA\”)investigated the fatality July 11 – August 22, 1985, and on August 27,1985, OSHA issued one citation to Solis’ employer, Austin Bridge Co.(\”Austin\”) alleging serious violations of ?5(a)(2) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”), andsafety standards codified at 29 C.F.R. 1926 ?? 21(b)(2) and 550(a)(1),for which an aggregate penalty of $630 was proposed. Austin timely filednotice of contest on September 10, 1985, thus invoking the jurisdictionof the Occupational Safety and Health Review Commission (\”theCommission\”) under ?10(c) of the Act. Subsequently the complainantSecretary of Labor (\”the Secretary\”) filed a formal complaint, andAustin filed an answer thereto. The matter came on regularly for hearingJanuary 27, 1986, in Dallas, Texas. Both parties have filed posthearingbriefs.FACTUAL BACKGROUNDAustin, a large employer with approximately 500 employees, was erectinga highway overpass when the accident occurred which resulted in thisproceeding. It operates 35 or 40 cranes. Preparatory to moving themobile crane here involved to a new location, it was necessary to remove20 feet (two 10-foot sections) of the 80-foot boom. A three-man crew wasdetailed to this task. Although the crew members’ primary duties werenot concerned with cranes, all had had prior experience in disassemblingcrane booms.The boom is sectionalized, each pair of sections being held together by4 steel pins driven through holes. To detach the last 2 sectionssimultanoeusly, 4 pins (2 on the top and 2 on the bottom) had to beremoved. First, however, the pendant lines running from the top of thecab to the peak of the boom had to be moved back of the sections to beremoved; through an oversight to be explained later, this was not done.Thus when the 2 bottom pins were knocked out, the 2 upper pins actedlike a hinge, allowing the boom to fall on Solis.There are also questions as to whether the boom should have been in araised position and whether Solis should have been under the boom whenhe knocked out the lower pins.Austin blames the accident entirely on the failure to move the pendantlines back and seeks to excuse this failure on a distraction caused by afreakish circumstance in which an intruder allegedly stole a paycheckfrom Austin’s office, was apprehended on the jobsite, and was beingquestioned by the police.THE ALLEGED VIOLATIONSThe two alleged violations will be discussed together because bothinvolve the manufacturer’s instructions for disassembling the crane boom.Subitem 1a alleges that Austin failed properly to instruct employees \”inaccordance with the operations manual,\” in violation of ?1926.21(b)(2),and subitem 1b alleges that Austin \”failed to ensure that its employees.. . read and adhered to specific safety warnings. . .in the Operator’sManual\” in violation of ?1926.550(a)(1). The cited standards provide:1926.21-Safety Training and Education* * *(b) Employer responsibility* * *(2) The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.1926.550-Cranes and Derricks(a) General requirements(1) The employer shall comply with the manufacturer’s specifications andlimitations applicable to the operation of any and all cranes andderricks. Where manufacturer’s specifications are not available, thelimitations assigned to the equipment, shall be based on thedeterminations of a qualified engineer competent in this field and suchdeterminations will be appropriately documented and recorded.Attachments used with cranes shall not exceed the capacity, rating, orscope recommended by the manufacturer.The Operator’s Manual (Exhibit C-3) gives detailed instructions fordisassembling pin-connected booms, including:(1) Lowering the boom until the peak rests on the ground.(2) Moving the main pendants from the peak back to the joint to bedisassembled, then exerting tension on the pendant lines without liftingthe peak from the ground.(3) Removing the bottom pins at the joint to be disconnected.(4) Lowering the boom until the section(s) to be removed lie flat on theground, then removing the upper pins.There is also a warning: \”Never Stand Under a Boom When Removing Pins.\”The procedure taught to Austin’s employees, in on-the-job training, issomewhat different, but Austin contends that it is safe. After thependant lines have been moved back to the point to be disconnected, theboom is lifted so an employee can get under boom and knock out thebottom pins; then the boom is lowered to the ground and the top pins areremoved.Austin introduced convincing and uncontradicted testimony that itsmethod was safe; that removal of the bottom pins would not allow theboom to fall if the pendant lines had been moved back to the point ofdisassembly; that it is therefore safe for an employee to go under theboom to knock out the bottom pins; and that it would be difficult to getat the bottom pins any other way due to the interfering latticework ofthe boom.The disassembly method prescribed by the Operator’s Manual does have theadditional safeguard of having the peak rest on the ground while thebottom pins are removed, and this would also lessen the friction on thepins and make them easier to remove. Whether the manual’s method is anysafer depends on whether the pendant lines have been moved back to thepoint of disassembly.Here, of course, the pendant lines had not been moved back. Both partieslose sight, however, of the fact that the cause of this particularaccident is not the issue in determining whether Austin failed properlyto instruct its employees \”in the recognition and avoidance of unsafeconditions\” as required by ?1926.21(b)(2). Nor does this standardrequire that the instructions be in terms of the manual supplied by themanufacturer. It is sufficient if the employer properly instructs itsemployees to recognize and avoid the hazards to which they may be exposed.The boom disassembly crew in this case was composed of Johnny Vasques, aleadman with 13 years’ experience in the construction business who haddismantled 15 or 20 booms and had been trained by his brother, LuisVasques, job superintendent; Wilson Wallace, a cement finisher who hadalso been instructed by Luis Vasques and had previously assisted indismantling booms; and Solis, who had previously helped Johnny Vesquesdismantle booms. On this record, I cannot say that they were notadequately instructed.Austin has pleaded the affirmative defense of unpreventable employeemisconduct. I do not believe this has any bearing on the central issueof whether the employees were properly instructed. However, if this isincorrect, I find in the alternative that this defense has been provedwith regard to subitem 1a.With regard to subitem 1b, Austin has raised the interesting issue ofwhether ?1926.550(a)(1) is unconstitutional in that it delegatesrule-making authority to manufacturers, citing Chairman Moran’sdissenting opinion in Martin Iron Works, Inc., 75 OSAHRC 28\/C7, 2 BNAOSHC 1531, 1974-75 CCH OSHD?19,219 (No. 1690, 1975). This issue was not directed for review inMartin, however, and the majority declined to address it. My researchhas disclosed no Commission decision on this point. However, I do notfind it necessary to decide this issue, for in my opinion?1926.550(a)(1) by its own terms does not apply to this case. Thisbecomes apparent when key words in the standard are emphasized:(1) The employer shall comply with the manufacturer’s specifications andlimitations applicable to the operation of any and all cranes andderricks. Where manufacturer’s specifications are not available, thelimitations assigned to the equipment shall be based on thedeterminations of a qualified engineer competent in this field and suchdeterminations will be appropriately documented and recorded.Attachments used with cranes shall not exceed the capacity, rating, orscope recommended by the manufacturer. [Emphasis added]The \”specifications and limitations\” must be applicable to the\”operation\” of the crane. As applied to a machine, \”operation\” means \”amethod or manner of functioning.\” Webster’s New Collegiate Dictionary.The disassembly of a crane’s boom can hardly be said to be applicable toits \”operation.\” This is borne out also by the words \”capacity, ratingor scope\” in the \”last sentence; these matters definitely are applicableto the \”operation\” of the crane and are illustrative of its meaning.Of course, it might be said that the boom of a crane has to bedisassembled to permit its movement from one place to another and thatin a larger sense this is part of its operation. However, standardsshould not be stretched to fit a particular hazard not covered by theplain meaning of its words. Butler Constructors, Inc., 76 OSAHRC 149\/A2,4 BNA OSHC 1928, 1976-77 CCH OSHD ?21,394 (No. 11,553, 1976).CONCLUSIONS OF LAW1. The Commission has jurisdiction of the parties and of the subjectmatter of this proceeding.2. On July 11, 1985, Austin was not in violation of 29 C.F.R.1926.21(b)(2) or 29 C.F.R. 1926.550(a)(1)._ORDER_In consideration of the foregoing Decision, it is ORDERED that:Items 1a and 1b of citation 1, alleging serious violations of 29 C.F.R.1926.21(b)(2) and 29 C.F.R. 1926.550(a)(1), are VACATED.DEE C. BLYTHEAdministrative Law JudgeDate: April 18, 1986Dallas, Texas”