“t,v.BECHTEL POWER CORPORATION, Respondent.OSHRC Docket No. 80-4764DECISIONBefore: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration. It wasestablished to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. See section 10(c) of theAct, 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 standard requiringthat the rotating superstructures of cranes be barricaded. Administrative Law Judge RamonM. Child affirmed the citation and assessed a penalty of $810. We conclude that Bechtelwas in compliance with the cited standard and vacate the citation.The alleged violation occurred at a construction site in Colstrip, Montana, where Bechtelwas erecting a coal-fired power plant. Bechtel was using five cranes in the constructionwork, including a Manitowoc 4000 crawler crane. Each crane has a two-member crew: anoperator and an oiler. The operator sits in the upper part of the crane, called the cranehouse or superstructure. The lower part of the crane, which includes the crawler treads,is called the car body. The superstructure can rotate while the car body remainsstationary. In accordance with Bechtel’s policy, rope and flag barricades were erectedaround the entire perimeter of each crane. The citation was issued following an OSHAinvestigation of a fatality that occurred when the oiler of the Manitowoc 4000, JeffBrown, was killed when he was caught between the tracks and rotating superstructure of thecrane.An oiler is assigned to each crane to assist the operator and to perform functionsessential to the crane’s operation. The oiler is responsible for lubricating the crane andits moving parts,[[1]] assisting the operator in determining when the crane’s boom isclear so that loads can be moved, and keeping the crane clean. He also erects the rope andflag barricade around the crane. When the crane is used with the boom nearly horizontal,the oiler watches the tracks and signals the operator if the tracks begin to lift off theground, indicating that the crane is starting to tip. The oiler also spends some of histime working with the operator in the cab to gain the requisite experience to become acrane operator. The oilers must have access to the cranes to perform their work and mustwork in close coordination with the crane operators. For this reason, Bechtel permittedits oilers to remain in the barricaded area while the crane was in operation.The citation alleges that Bechtel violated 29 C.F.R. ? 1926.550(a)(9). This standardprovides:? 1926.550 Cranes and derricks.(a) General Requirements.* * *(9) Accessible areas within the swing radius of the area of rotating superstructure of thecrane, either permanently or temporarily mounted, shall be barricaded in such a manner asto prevent an employee from being struck or crushed by the crane.The Commission has held that section 1926.550(a)(9) requires the erection of a physicalbarricade around the swing radius of a crane’s rotating superstructure. ConcreteConstruction Co., 76 OSAHRC 139\/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD ? 21,269 (No. 5692,1976), aff’d, 598 F.2d 1031 (6th Cir. 1979). The Secretary concedes that the rope and flagbarricade Bechtel used is the type of barricade the standard requires but argues thatBechtel nevertheless violated the standard by permitting the oiler inside the barricadedarea while the crane was in operation. We disagree.The standard was not intended to require that all employees be physically restrained fromthe area around the crane. The Secretary acknowledges this, conceding that both the oilerand the crane operator must be allowed to pass through the barricade. The purpose of thebarricade required by the standard is to warn employees that the barricaded area isdangerous and to guide and direct them away from the crane superstructure. See 29 C.F.R.?? 1926.202 and 1926.203 and American National Standards Institute D 6.1- 1971, Section6 C-1, Manual on Uniform Traffic Control Devices for Streets and Highways (barricades areto warn and guide away from hazards rather than to absolutely prohibit entry). Employeeswho have no reason to be in the area are thus deterred by the barricade from entering, andthe oiler, who must, enter the area, is on notice to be alert to the hazard of the crane’srotating superstructure.Since the Secretary has conceded that the barricade complied with the standard and thatthe oiler and operator may work on the inside of the barricade, his argument reduces tothe assertion that the standard required Bechtel to instruct the oiler to stay outside thebarricade at certain specified times, and that the instructions he would have Bechtel givewould provide more protection to the oilers than the instructions Bechtel 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 or instructing employees.There is a specific construction industry standard requiring employers to instruct theiremployees in the recognition and avoidance of unsafe conditions, 29 C.F.R. ?1926.21(b)(2).[[2]] If Bechtel’s instructions to its oilers were inadequate, the Secretaryshould have cited Bechtel for a violation of section 1926.21(b)(2) rather than attempt toread into section 1926.550(a)(9) an instruction requirement that the standard clearly doesnot contain.[[3]] The standard can be altered to include such a requirement only throughthe Secretary’s rulemaking authority, not by constructing the standard to mean what itdoes not say. See, e.g., Lloyd C. Lochrem, Inc. v. OSHRC, 609 F.2d 940, 944 (9th Cir.1979) (regulations must be applied as written so that employers need not guess at theSecretary’s intended interpretation); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157 (3rdCir. 1978) (standards must be construed to require only what the plain and natural meaningexpresses). See also Marshall v. Anaconda Co., 596 F.2d 370, 376 n.6 (9th Cir. 1979)(Secretary has the responsibility to promulgate clear unambiguous standards; reviewingauthorities are \”bound to construe regulations, not create them\”) (emphasis inthe original).Even if Bechtel had been cited for violating section 1926.21(b)(2), we believe the recordin this case indicates that Bechtel had complied with that standard. Bechtel instructedits oilers about the hazard presented by the rotating superstructure and told the oilersto remain out of the area in the rear of the crane between the house and the car body.This subject was discussed at safety meetings, which were held every Monday morning. Signson the Manitowoc 4000 also warned of the danger presented by the moving superstructure.Prior to the accident, Brown had been informed of Bechtel’s rules. He had attended twoweekly safety meetings on the Colstrip project at which the hazard presented by therotating superstructure was discussed. He was also given specific instructions about thehazards associated with the crane by the operator of the Manitowoc 4000. Bechtel’ssupervisors on the Colstrip project testified that they had neither observed, nor hadreported to them, any instances in which any oiler worked where the oiler could be crushedby the crane’s superstructure.[[4]] Bechtel’s equipment superintendent stated that anyoiler observed working in such a manner would have been dismissed. The Secretary’s expertwitness, Rodney Laster, described Bechtel’s safety program as being \”among if not theleader in the industry.\”The Secretary failed to prove any defect in the instructions given by Bechtel. Cf.National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973) (theSecretary must prove that the employer’s safety program was lacking and that specificalternative measures would be demonstrably safer). The instructions Bechtel gave itsoilers specifically directed their attention to the hazard of being within the crane’srear swing radius. The oiler was specifically instructed to remain out of the area withinthe rear swing radius of the crane, and Bechtel had no reason to believe he would notfollow those instructions. That one of Bechtel’s oilers did not follow the instructionsdoes not prove they were ineffective. Employees will sometimes circumvent the best safetyprogram, and even the Secretary’s expert witness agreed that Bechtel was a leader in itsindustry in safety.[[5]]In summary, Bechtel erected a proper barricade around its cranes as required by section1926.550(a)(9). The standard does not require Bechtel to prohibit the oiler’s presenceinside the barricaded area while the crane is \”in operation\” or give theinstructions suggested by the Secretary. Accordingly, the citation for violation of 29C.F.R. ? 1926.550(a)(9) is vacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 2, 1985FOOTNOTES: [[1]] According to the record, various parts of the crane require lubricationas frequently as every four hours, and much of the lubrication must be done while thecrane is in an operating mode.[[2]] Section 1926.21(b)(2) provides:(2) The employer shall instruct each employee in the recognition and avoidance of unsafeconditions and the regulations applicable to his work environment to control or eliminateany hazards or other exposure to illness or injury.[[3]] At the hearing, the Secretary’s counsel also relied upon ? 5-2.34 of ANSIB30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes, to support his positionthat the oilers should not be allowed inside the barricade while the crane is inoperation. The Secretary’s counsel correctly noted that the ANSI Code was incorporated byreference at 29 C.F.R. ? 1926.550(b)(2) as an occupational safety and health standard.However, the Secretary neither moved to amend to ? 1926.550(b)(2) nor was the issue ofBechtel’s violation of ANSI B30.5-1968 tried by the express or implied consent of theparties.[[4]] On the day before the fatal accident, another Bechtel employee, RonaldEbert, observed Brown in the danger zone at the rear of the crane and told Brown to leavethe area. However, Ebert testified that he did not report this incident to a supervisorand Bechtel was not aware of’ it. We believe Ebert’s testimony that Brown left the areaimmediately without 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 would bepreferable to Bechtel’s. Under the Secretary’s instructions, the oiler would be permittedin the barricaded area only when the crane is not \”in operation.\” However, theSecretary does not elaborate on what he means by \”in operation,\” and the recordindicates that the term is essentially meaningless in the context of the oiler’s duties.The Secretary’s expert witness, Laster, testified that it is common industry practice forthe oiler to remain inside the barricade when the crane is \”dogged off,\” i.e.,when the motor is running but the master clutch is disengaged so that the crane cannotswing. However, Laster also agreed that the operator must sometimes engage the masterclutch and move the machine to make certain lubrication points accessible to the oiler.Bechtel’s equipment superintendent, James Neta, stated that there were three situations inwhich the oiler must lubricate a Manitowoc 4000 while the crane is operating: (1) theoperator must swing the crane slowly while the oiler sprays the swing gear; (2) theoperator must boom up and down while the oiler sprays the boom hoist gear; and (3) theoperator must swing the crane body to allow the oiler access to the house roller under thecrane cab body. Laster referred to Neta’s testimony in stating that there are times\”when the machine must be moved a certain amount to get to the proper lubricationpoints.\” Thus, according to the testimony of the Secretary’s own expert, the oilercannot always be excluded from the barricaded area while the crane is \”inoperation.\”; Thus, according to the testimony of the Secretary’s own expert, the oilercannot always be excluded from the barricaded area while the crane is \”inoperation.\””