“t,v.BECHTEL POWER CORPORATION,Respondent.OSHRC Docket No. 80-4764_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor issued a citation to Bechtel Power Corporation(\”Bechtel\”) alleging that Bechtel violated an OSHA safety standardrequiring that the rotating superstructures of cranes be barricaded.Administrative Law Judge Ramon M. Child affirmed the citation andassessed a penalty of $810. We conclude that Bechtel was in compliancewith the cited standard and vacate the citation.The alleged violation occurred at a construction site in Colstrip,Montana, where Bechtel was erecting a coal-fired power plant. Bechtelwas using five cranes in the construction work, including a Manitowoc4000 crawler crane. Each crane has a two-member crew: an operator and anoiler. The operator sits in the upper part of the crane, called thecrane house or superstructure. The lower part of the crane, whichincludes the crawler treads, is called the car body. The superstructurecan rotate while the car body remains stationary. In accordance withBechtel’s policy, rope and flag barricades were erected around theentire perimeter of each crane. The citation was issued following anOSHA investigation of a fatality that occurred when the oiler of theManitowoc 4000, Jeff Brown, was killed when he was caught between thetracks and rotating superstructure of the crane.An oiler is assigned to each crane to assist the operator and to performfunctions essential to the crane’s operation. The oiler is responsiblefor lubricating the crane and its moving parts,[[1]] assisting theoperator in determining when the crane’s boom is clear so that loads canbe moved, and keeping the crane clean. He also erects the rope and flagbarricade around the crane. When the crane is used with the boom nearlyhorizontal, the oiler watches the tracks and signals the operator if thetracks begin to lift off the ground, indicating that the crane isstarting to tip. The oiler also spends some of his time working with theoperator in the cab to gain the requisite experience to become a craneoperator. The oilers must have access to the cranes to perform theirwork and must work in close coordination with the crane operators. Forthis reason, Bechtel permitted its oilers to remain in the barricadedarea while the crane was in operation.The citation alleges that Bechtel violated 29 C.F.R. ? 1926.550(a)(9).This standard provides:? 1926.550 Cranes and derricks.(a) General Requirements.* * *(9) Accessible areas within the swing radius of the area of rotatingsuperstructure of the crane, either permanently or temporarily mounted,shall be barricaded in such a manner as to prevent an employee frombeing struck or crushed by the crane.The Commission has held that section 1926.550(a)(9) requires theerection of a physical barricade around the swing radius of a crane’srotating superstructure. Concrete Construction Co., 76 OSAHRC 139\/A2, 4BNA OSHC 1828, 1976-77 CCH OSHD ? 21,269 (No. 5692, 1976), aff’d, 598F.2d 1031 (6th Cir. 1979). The Secretary concedes that the rope and flagbarricade Bechtel used is the type of barricade the standard requiresbut argues that Bechtel nevertheless violated the standard by permittingthe oiler inside the barricaded area while the crane was in operation.We disagree.The standard was not intended to require that all employees bephysically restrained from the area around the crane. The Secretaryacknowledges this, conceding that both the oiler and the crane operatormust be allowed to pass through the barricade. The purpose of thebarricade required by the standard is to warn employees that thebarricaded area is dangerous and to guide and direct them away from thecrane superstructure. See 29 C.F.R. ?? 1926.202 and 1926.203 andAmerican National Standards Institute D 6.1- 1971, Section 6 C-1, Manualon Uniform Traffic Control Devices for Streets and Highways (barricadesare to warn and guide away from hazards rather than to absolutelyprohibit entry). Employees who have no reason to be in the area are thusdeterred by the barricade from entering, and the oiler, who must, enterthe area, is on notice to be alert to the hazard of the crane’s rotatingsuperstructure.Since the Secretary has conceded that the barricade complied with thestandard and that the oiler and operator may work on the inside of thebarricade, his argument reduces to the assertion that the standardrequired Bechtel to instruct the oiler to stay outside the barricade atcertain specified times, and that the instructions he would have Bechtelgive would provide more protection to the oilers than the instructionsBechtel actually gave.However, the standard that Bechtel was charged with violating, 29 C.F.R.? 1926.550(a)(9), does not contain any requirement for training orinstructing employees. There is a specific construction industrystandard requiring employers to instruct their employees in therecognition and avoidance of unsafe conditions, 29 C.F.R. ?1926.21(b)(2).[[2]] If Bechtel’s instructions to its oilers wereinadequate, the Secretary should have cited Bechtel for a violation ofsection 1926.21(b)(2) rather than attempt to read into section1926.550(a)(9) an instruction requirement that the standard clearly doesnot contain.[[3]] The standard can be altered to include such arequirement only through the Secretary’s rulemaking authority, not byconstructing the standard to mean what it does not say. See, e.g., LloydC. Lochrem, Inc. v. OSHRC, 609 F.2d 940, 944 (9th Cir. 1979)(regulations must be applied as written so that employers need not guessat the Secretary’s intended interpretation); Bethlehem Steel Corp. v.OSHRC, 573 F.2d 157 (3rd Cir. 1978) (standards must be construed torequire only what the plain and natural meaning expresses). See alsoMarshall v. Anaconda Co., 596 F.2d 370, 376 n.6 (9th Cir. 1979)(Secretary has the responsibility to promulgate clear unambiguousstandards; reviewing authorities are \”bound to construe regulations, notcreate them\”) (emphasis in the original).Even if Bechtel had been cited for violating section 1926.21(b)(2), webelieve the record in this case indicates that Bechtel had complied withthat standard. Bechtel instructed its oilers about the hazard presentedby the rotating superstructure and told the oilers to remain out of thearea in the rear of the crane between the house and the car body. Thissubject was discussed at safety meetings, which were held every Mondaymorning. Signs on the Manitowoc 4000 also warned of the danger presentedby the moving superstructure.Prior to the accident, Brown had been informed of Bechtel’s rules. Hehad attended two weekly safety meetings on the Colstrip project at whichthe hazard presented by the rotating superstructure was discussed. Hewas also given specific instructions about the hazards associated withthe crane by the operator of the Manitowoc 4000. Bechtel’s supervisorson the Colstrip project testified that they had neither observed, norhad reported to them, any instances in which any oiler worked where theoiler could be crushed by the crane’s superstructure.[[4]] Bechtel’sequipment superintendent stated that any oiler observed working in sucha manner would have been dismissed. The Secretary’s expert witness,Rodney Laster, described Bechtel’s safety program as being \”among if notthe leader in the industry.\”The Secretary failed to prove any defect in the instructions given byBechtel. Cf. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257,1266 (D.C. Cir. 1973) (the Secretary must prove that the employer’ssafety program was lacking and that specific alternative measures wouldbe demonstrably safer). The instructions Bechtel gave its oilersspecifically directed their attention to the hazard of being within thecrane’s rear swing radius. The oiler was specifically instructed toremain out of the area within the rear swing radius of the crane, andBechtel had no reason to believe he would not follow those instructions.That one of Bechtel’s oilers did not follow the instructions does notprove they were ineffective. Employees will sometimes circumvent thebest safety program, and even the Secretary’s expert witness agreed thatBechtel was a leader in its industry in safety.[[5]]In summary, Bechtel erected a proper barricade around its cranes asrequired by section 1926.550(a)(9). The standard does not requireBechtel to prohibit the oiler’s presence inside the barricaded areawhile the crane is \”in operation\” or give the instructions suggested bythe Secretary. Accordingly, the citation for violation of 29 C.F.R. ?1926.550(a)(9) is vacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 2, 1985————————————————————————FOOTNOTES:[[1]] According to the record, various parts of the crane requirelubrication as frequently as every four hours, and much of thelubrication must be done while the crane is in an operating mode.[[2]] Section 1926.21(b)(2) provides:(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.[[3]] At the hearing, the Secretary’s counsel also relied upon ? 5-2.34of ANSI B30.5-1968, Safety Code for Crawler, Locomotive and TruckCranes, to support his position that the oilers should not be allowedinside the barricade while the crane is in operation. The Secretary’scounsel correctly noted that the ANSI Code was incorporated by referenceat 29 C.F.R. ? 1926.550(b)(2) as an occupational safety and healthstandard. However, the Secretary neither moved to amend to ?1926.550(b)(2) nor was the issue of Bechtel’s violation of ANSIB30.5-1968 tried by the express or implied consent of the parties.[[4]] On the day before the fatal accident, another Bechtel employee,Ronald Ebert, observed Brown in the danger zone at the rear of the craneand told Brown to leave the area. However, Ebert testified that he didnot report this incident to a supervisor and Bechtel was not aware of’it. We believe Ebert’s testimony that Brown left the area immediatelywithout question is significant and reflects that Brown knew he was notsupposed to be there.[[5]] We do not agree that the Secretary’s proposed instructions wouldbe preferable to Bechtel’s. Under the Secretary’s instructions, theoiler would be permitted in the barricaded area only when the crane isnot \”in operation.\” However, the Secretary does not elaborate on what hemeans by \”in operation,\” and the record indicates that the term isessentially meaningless in the context of the oiler’s duties. TheSecretary’s expert witness, Laster, testified that it is common industrypractice for the oiler to remain inside the barricade when the crane is\”dogged off,\” i.e., when the motor is running but the master clutch isdisengaged so that the crane cannot swing. However, Laster also agreedthat the operator must sometimes engage the master clutch and move themachine to make certain lubrication points accessible to the oiler.Bechtel’s equipment superintendent, James Neta, stated that there werethree situations in which the oiler must lubricate a Manitowoc 4000while the crane is operating: (1) the operator must swing the craneslowly while the oiler sprays the swing gear; (2) the operator must boomup and down while the oiler sprays the boom hoist gear; and (3) theoperator must swing the crane body to allow the oiler access to thehouse roller under the crane cab body. Laster referred to Neta’stestimony in stating that there are times \”when the machine must bemoved a certain amount to get to the proper lubrication points.\” Thus,according to the testimony of the Secretary’s own expert, the oilercannot always be excluded from the barricaded area while the crane is\”in operation.\”; Thus, according to the testimony of the Secretary’s own expert, theoiler cannot always be excluded from the barricaded area while the craneis \”in operation.\””