“SECRETARY OF LABOR,Complainant,v.CONCRETE CONSTRUCTION CO., INC.,Respondent.OSHRC Docket No. 82-1210_DECISION_Before: BUCKLEY, Chairman; and CLEARY, Commissioner.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).Item 1(a) of a citation issued by the Secretary alleged that part of abackhoe operated by Concrete Construction Company came within ten feetof an energized power line, contrary to 29 C.F.R. ? 1926.550(a)(15)(i).That standard requires that, unless electrical power lines have beendeenergized or insulated, a ten-foot clearance be maintained between thelines and all parts of a crane. Item 1(b) specified that the workerdesignated by Concrete to observe clearance of the backhoe was assignedadditional tasks that prevented him from ensuring that clearance wasmaintained, in alleged violation of section 1926.550(a)(15)(iv).That standard requires that, where it is difficult for a crane operatorto maintain clearance visually, a person \”be designated to observeclearance of the equipment and give timely warning . . . . \”[[1]] Ahearing was held before Administrative Law Judge Paul L. Brady, whoaffirmed both items.As an initial matter, Concrete argues that section 1926.550(a)(15)–acrane standard–does not apply to its backhoe, which it characterizes asexcavation equipment. The employer argues that backhoes are coveredunder a different subpart, Subpart O of Part 1926, which deals expresslywith excavation equipment. Concrete cites the Commission’s recentdecision in Lisbon Contractors, Inc., 84 OSAHRC __, 11 BNA OSHC 1971,1984-85 CCH OSHD ? 26,924 (No. 80-97, 1984), which held that aCaterpillar 235 backhoe identical to the one used here is not a \”crane\”within the meaning of section 1926.550(a)(9), the crane barricadingstandard.Lisbon is not controlling, however, because that decision involvedsection 1926.550(a)(9). Section 1926.550(a)(15), the section cited inthis case, is different from section 1926.550(a)(9) and other sectionsof the crane standard in that it expressly was made applicable tonon-crane equipment, including backhoes, by a provision in Subpart O,section 1926.600(a)(6). Section 1926.600(a)(6) provides that \”[a]llequipment covered by this subpart [Subpart O] shall comply with therequirements of ? 1926.550(a)(15) when working or being moved in thevicinity of power lines or energized transmitters.\”[[2]] It is clearthat this Caterpillar 235 backhoe is covered by Subpart O. Section1926.602(b), a provision within Subpart O, is captioned \”Excavating andother equipment\” and expressly mentions backhoe attachments at section1926.602(b)(1). Section 1926.602(b)(3) cross-references several otherstandards, at least one of which– Power Crane and Shovel AssociationStandard No. 3 of 1969, Mobile Hydraulic Excavator Standards, section2.0.1–specifically covers backhoes. Finally, Concrete states that itsbackhoe is excavation equipment and asserts that it is covered bySubpart O. We agree and find that section 1926.550(a)(15) applies._Item 1(a): Section 1926.550(a)(15)(i)–Clearance_Section 1926.550(a)(15)(i) requires that, where electrical distributionor transmission lines have not been deenergized or insulated, the\”Minimum clearance between the lines and any part of the crane or loadshall be 10 feet.\” Three electric power lines above Concrete’s backhoewere neither deenergized nor insulated. The judge found that therequired clearance from energized lines was not maintained, for thebackhoe contacted a power line, a fact not in dispute. The only issue onreview is whether the Secretary proved that Concrete knew or with theexercise of reasonable diligence could have known of and prevented theviolation. See, e.g., Scheel Construction, Inc., 76 OSAHRC 138\/B6, 4 BNAOSHC 1824, 1976-77 CCH OSHD ? 21,263 (No. 8687, 1976). We find that hedid.[[3]]Concrete was putting in a waterline alongside a road in Groveport, Ohio.A Caterpillar 235 backhoe excavator was used to dig a trench and laypipe sections. The trench was located under three power lines, eachcarrying 7,620 volts. At one point the lines were about 28 feet aboveground level. Given the standard’s requirement of a ten foot clearance,Concrete had 18 feet in which to maneuver the entire backhoe under thatpoint. At another point, the three lines hung 22 feet off the ground,leaving only 12 feet in which to maneuver the backhoe. At the time ofthe alleged violation, approximately 1500-2000 feet of pipe had beenlaid underneath the power lines. Each section of the steel- linedutility pipe was 20 feet long, 50 inches in diameter, and weighed 11,800pounds.The trench was dug in sections 11 or 12 feet wide and was long enoughfor one piece of pipe to be laid at a time. After digging a new sectionof trench, the backhoe operator would move the backhoe twenty feet backfrom the opening, in a line parallel to the road. The operator thenrotated the backhoe’s superstructure 90 degrees clockwise and extendedthe backhoe arm about 30-35 feet across the road to where the pipesections were stored. Concrete had designated an employee to observe theclearance of the backhoe from the overhead power lines and to assist inlowering the pipe section into the trench. The observer would attach asling around the pipe and hook the sling and pipe to the backhoe bucket.The backhoe operator then dragged the pipe toward the machine untilenough leverage was gained to raise the pipe off the ground. The armcould be extended a maximum of about 25 feet and still maintain leverageto raise the pipe. The operator then pivoted the arm with its load back(not quite a full 90 degrees) toward the open trench, moved the backhoeforward until the pipe was next to the trench, again pivoted the armuntil the pipe was above the trench, and lowered it into the trench.While the pipe was suspended near the trench, the observer would graspthe end of the pipe closest to the backhoe to steady it. When the pipewas about to be lowered into the trench, the observer would be standingin front of the backhoe at the edge of the trench. This observer or aworker in the trench would signal the backhoe operator to lower thepipe. The backhoe operator testified that the observer’s assistance wasnecessary to ensure that safe clearance was maintained. In his words: \”Itold him to watch the wires overhead. And, he’d have to signal me when Igot next to the trench because I couldn’t watch him and watch the peoplebelow [workers in the trench] too.\” The intrusion into the ten-foot zoneoccurred as the operator was about to lower a pipe section into thetrench in the usual manner. As the arm of the backhoe was swung towardthe center of the trench and the 28-foot-high power lines, its knucklejoint made contact with one of the lines, electrocuting the observer.Before trenching operations were begun, Concrete met with employees ofthe electric utility. They reviewed the locations of utility poles andunderground power lines and discussed ways of ensuring that thetrenching operation would not undermine the footings of the poles. Theheight of the lines, the adequacy of the clearance from them, and thepossibility of deenergizing or temporarily insulating the lines were notdiscussed, because Concrete’s representative believed there would besufficient room for the backhoe to safely perform its work. The electricutility could have deenergized the lines at Concrete’s request and atConcrete’s expense, as it later did. The record does not show whetherthe lines could have been insulated.After the meeting but before it began digging operations, the companyalso conducted a \”dry, run\” with the Caterpillar 235. On the basis of\”eyeball\” estimates during this \”dry run,\” Concrete’s jobsuperintendent, Lusignolo, concluded that the wires ranged from 25 to 35feet in height and that there would be about 13 feet of clearance. Therecord does not reflect whether the dry run was con ducted under amidpoint, where the lines would hang lowest, or whether a pipe and slingarrangement similar to that being used at the time of the allegedviolation were employed. No measurements were taken during the dry run.At the hearing, the height reached by the backhoe arm, particularly itsknuckle joint, became a focus of attention. The operator of the backhoetestified that the knuckle joint was about 18 feet high during thepipe-lowering portion of the operation. Concrete’s job superintendent,Lusignolo, estimated that the knuckle joint reached a height of 14 to 15feet. Concrete also introduced a photograph showing the height of theknuckle joint as 16 feet and the height of two hydraulic lines attachedto the backhoe arm’s knuckle joint as nearly 18 feet during a purportedsimulation of the operation.[[4]]The judge found that the trenching operation was conducted in a mannerthat Concrete reasonably should have known would encroach on the 10-footzone around the power lines, as it did. This finding is fully supportedby the facts. The sling that Concrete used extended about eight feetfrom the top of the pipe to the hook on the backhoe. The pipe was overfour feet in diameter and was carried one foot off the ground. Theheight of the rigging and load together was therefore at least thirteenfeet. This meant that in order to maintain a 10-foot clearance under a28-foot-high power line, the operator had only five feet in which tomaneuver the arm of the backhoe. Under a 22-foot-high line, there wouldhave been no room at all in which to maneuver without encroaching intothe 10-foot zone.[[5]]That there was no margin for error is apparent from an examination ofthe specifics of the pipe-lowering operation. Both the backhoe operatorand Concrete’s superintendent testified that, after the backhoe armpicked up a pipe section but before the backhoe and the pipe movedforward to the open trench, the backhoe arm was extended 25 feethorizontally. Once the pipe was next to the trench, the backhoe arm waspivoted horizontally several feet to the left until the fifty- inch-widepipe section cleared the edge of the twelve-foot-wide trench.[[6]] Thepipe section was then lowered vertically into the trench. The closestenergized power line was nearly directly above the trench’s centerline.The operator thought and Concrete argues that the knuckle joint was then18 feet high. This meant, under the employer’s own view, that onlyinches of clearance from the ten-foot zone were left when the backhoewas operated under lines slightly higher than 28 feet, and that noclearance whatsoever was left when it was operated under 28-foot-highlines. Under 25-foot- high lines, which was the lower end of the rangeof heights estimated by Concrete’s supervisor during the dry run, thebackhoe arm assembly would encroach three feet into the ten foot zone.Under the 22-foot height measured in the area in which Concrete wasworking the backhoe arm would encroach six feet.We find that, had Concrete exercised reasonable diligence, it could haveknown of and prevented the violation. Concrete was conducting a seriesof operations under three energized power lines that it knew varied inheight and were close enough to pose a grave danger. It elected not tohave the lines deenergized by the local power company and chose insteadto maintain a ten-foot clearance from the lines. Yet, with a minimum offoresight and effort, Concrete could have discovered that its riggingarrangement and pipe-laying procedure left no room in which to maneuverthe backhoe arm even assuming the accuracy of its own estimate of theheight of the lines, the height. reached by the backhoe arm and itsability to maneuver the machine precisely within very narrow limits. Infact, Concrete’s backhoe could not be operated with such precision, asevidenced by the fact that its knuckle joint contacted a line that wasnearly 28 feet high, at least ten feet higher than any of Concrete’switnesses thought the knuckle joint would be. The circumstances of thiscase demonstrate that Concrete failed to exercise reasonable diligencein maintaining a ten-foot safety margin. We therefore affirm item 1(a)._Item 1(b): Section 1926.550(a)(15)(iv)–Observer_Section 1926.550(a)(15)(iv) requires that \”[a] person shall bedesignated to observe clearance of the equipment and give timely warningfor all operations where it is difficult for the operator to maintainthe desired clearance by visual, means[.]\” Chairman Buckley andCommissioner Cleary are divided over whether, the observer requirementwas violated.Commissioner Cleary agrees with the judge’s finding that the employerfailed to comply with the standard. In Commissioner Cleary’s view, thestandard requires more than the mere provision of an observer. Itrequires that the observer not be assigned additional duties thatprevent him from assuring that no part of the equipment or its loadcomes within ten feet of energized power lines. Here, Concrete’s jobsuperintendent assigned its observer the additional task of assistingthe backhoe operator in lowering the pipe into the trench by having himsteady the load and guide it into the trench. The so-called observerappears to have been, in actuality, a helper or rigger. The backhoeoperator testified without contradiction that when a pipe section wasabout to be lowered into the trench–the moment when the backhoe boomwas closest to the power line –it was \”crucial\” that the attention ofthe observer be directed at the pipe. In Commissioner Cleary’s view,this unrebutted testimony establishes that the employer did notdesignate a person to \”observe clearance\” and \”give timely warning\” tothe backhoe operator within the meaning of the standard.[[7]] In anyevent, as the Commission’s discussion of the clearance violationdemonstrates, Concrete had set up its pipe-laying procedure in such away that repeated violations of the ten-foot safety zone wereinevitable. Its \”observer\” could therefore have reasonably been expectedto give warning only of impending contact with a power line, rather thanintrusion into the safety zone. So hollow a \”designation\” of an observerviolates the standard. Commissioner Cleary would therefore affirm item 1(b).In Chairman Buckley’s view, the judge erred in affirming this citationitem. Contrary to the Secretary’s argument to the judge, the standarddoes not require that an observer have no other, duties to perform andthat he devote all his attention to observing clearance. The standardrequires only that an employee be designated to observe clearance andgive timely warning. The record does not show that this was not done.Although the Secretary claimed that an observer was assigned duties thatprevented him from adequately ensuring that clearance was maintained,the record shows at most that he had some other duties to perform.During the pipe-laying operation, the observer would, in the operator’swords, \”glance\” at the workers in the trench. The record does not showthat the observer’s other duties prevented him from effectively carryingout his task of observing clearance. At most it shows that he wasrequired to perform separate tasks during the operation. That thesetasks did not interfere with each other is demonstrated by the jobsuperintendent’s unrebutted testimony that he occasionally substitutedfor the observer and was able both to maintain the required clearanceand steady the pipe. Furthermore, the observer was positioned where hecould clearly and closely observe the proximity of the overhead powerlines to the slowly-moving arm of the backhoe. At the point where thepipe would be lowered into the ground and the observer’s gaze wouldshift to the pipe fitters in the trench, the arm of the backhoe hadalready reached the point at which it was closest to the power lines.There is no evidence to support a finding that the observer could nottimely warn the operator that the backhoe arm was within ten feet of theoverhead wires. At most it can be inferred from the fact of the accidentthat, warning was given or that a warning was given but ignored. Yet,neither inference could support a finding that the observer’s duties, ifproperly discharged, precluded a timely warning. Accordingly, ChairmanBuckley would conclude that the judge erred in finding a violation ofsection 1926.550(a)(15)(iv).To resolve this impasse and to permit this case to proceed to a finalresolution, the members have agreed to affirm this portion of thejudge’s disposition but accord it the precedential value of anunreviewed judge’s decision.[[8]] See Life Science Products Co., 77OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910,1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979). Thejudge assessed a total penalty of $500 for both the clearance andobserver violations. Chairman Buckley would assess a penalty of $500 forthe clearance violation alone and would assess no penalty with respectto the observer item, which he ordinarily would vacate. CommissionerCleary agrees with the judge’s combined assessment. Accordingly, the twoCommissioners affirm the judge’s decision with respect to citation item1(b) but accord this affirmance the precedential value of an unreviewedjudge’s decision. The judge’s decision with respect to citation item1(a) is affirmed without qualification. A total penalty of $500 is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JAN 25 1985———————————————————————— FOOTNOTES:[[1]]The standards provide:Subpart N–Cranes, Derricks, Hoists,Elevators, and Conveyors?1926.550 Cranes and derricks.(a) General requirements.* * *(15) Except where electrical distribution and transmission lines havebeen deenergized and visibly grounded at point of work or whereinsulating barriers, not a part of or an attachment to the equipment ormachinery, have been erected to prevent physical contact with the lines,equipment or machines shall be operated proximate to power lines only inaccordance with the following:(i) For lines rated 50 kV. or below, minimum clearance between the linesand any part of the crane or load shall be 10 feet;* * *(iv) A person shall be designated to observe clearance of the equipmentand give timely warning for all operations where it is difficult for theoperator to maintain the desired clearance by visual means[.][[2]]In Kent Nowlin Construction Co., 80 OSAHRC 39\/A10, 8 BNA OSHC 1286,1980 CCH OSHD ? 24,458 (Nos. 76-191 & 76-192, 1980), and Tri-CityConstruction Co., 80 OSAHRC 62\/C5, 8 BNA OSHC 1567, 1980 CCH OSHD ?24,557 (No. 77-3668, 1980), the Commission applied the crane clearancestandard through section 1926.600(a)(6) to backhoes that had beenoperated within ten feet of overhead power lines.[[3]]Before we discuss the circumstances of this case, one point bearsemphasis. The gravamen of this citation item is that Concrete failed tomaintain ten feet of clearance between its backhoe and an overhead powerline, not that the backhoe contacted the power line. Our inquiry here istherefore confined to whether Concrete exercised reasonable diligence inattempting to maintain this clearance, rather than in avoiding contactwith the wire. The contact with the wire is merely evidence that theclearance was not maintained and that part of the backhoe in factreached a height of 28 feet. See Concrete Construction Co., 76 OSAHRC,47\/A2, 4 BNA OSHC 1133, 1135 n.3, 1975-76 CCH OSHD ? 20,610, p. 24,664n.3 (No. 2490, 1976).[[4]]The photograph did not necessarily represent the conditions thatexisted at the time of the alleged violation. The photograph depictedthe backhoe carrying a considerably shorter, and presumably lighter,piece of pipe than was actually installed, which may have permitted theam of the backhoe to be more extended and the knuckle joint lower thanwas the case during actual operations. In addition, a shorter sling thanthat actually used is shown, while the pipe in the photograph appears tohave been suspended at ground level or in a shallow trench slightlybelow ground level. During the actual pipe-laying, the pipes werecarried a foot off the ground. The Secretary objected to theintroduction of this photograph on the ground that it did not fairlyrepresent the actual pipelowering operation. The record demonstrates,however, that, even if the photograph’s depiction of the backhoe arm’sheight as 18 feet is accepted, Concrete should have known that itsbackhoe would encroach upon the 10-foot zone.[[5]]The violation in this case did not occur precisely at a midpoint.One of the exhibits introduced into evidence shows that the backhoecontacted the power line some 28 feet west of its midpoint. Inasmuch asa section of pipe is lowered every 20 feet, and the backhoe was workingfrom west to east, the backhoe would have been maneuvered under evenlower-hanging power lines during the next pipelaying operation.[[6]]On this point, we agree with Judge Brady’s understanding of thetestimony. The employer claims that this understanding was erroneous. Itargues that the operator again \”boomed out\” the backhoe arm before orwhile lowering the pipe section. We find that this version of events isnot supported by the evidence. The job superintendent testified that thebackhoe arm would swing sideways from the side of the trench beforebeginning to lower the pipe section. The operator testified that he\”boomed out\” to nearly the maximum reach of the backhoe arm before hestarted to move the machine forward, and that he lowered the arm afterthe observer signaled him to do so.[[7]]Commissioner Cleary does not agree with the employer’s contentionthat this citation item is duplicative of the allegation that itviolated the clearance requirement.[[8]]Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official actioncan be taken by the Commission with the affirmative vote of two members.Presently, the Commission has two members as a result of a vacancy.”