“Docket No. 82-1210 SECRETARY OF LABOR, Complainant, v.CONCRETE CONSTRUCTION CO., INC., Respondent.OSHRC Docket No. 82-1210DECISION Before: BUCKLEY, Chairman; and CLEARY, Commissioner. 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).Item 1(a) of a citation issued by the Secretary alleged that part of a backhoe operated byConcrete Construction Company came within ten feet of an energized power line, contrary to29 C.F.R. ? 1926.550(a)(15)(i). That standard requires that, unless electrical powerlines have been deenergized or insulated, a ten-foot clearance be maintained between thelines and all parts of a crane. Item 1(b) specified that the worker designated by Concreteto observe clearance of the backhoe was assigned additional tasks that prevented him fromensuring that clearance was maintained, in alleged violation of section1926.550(a)(15)(iv).That standard requires that, where it is difficult for a crane operator to maintainclearance visually, a person \”be designated to observe clearance of the equipment andgive timely warning . . . . \”[[1]] A hearing was held before Administrative Law JudgePaul L. Brady, who affirmed both items.As an initial matter, Concrete argues that section 1926.550(a)(15)–a crane standard–doesnot apply to its backhoe, which it characterizes as excavation equipment. The employerargues that backhoes are covered under a different subpart, Subpart O of Part 1926, whichdeals expressly with excavation equipment. Concrete cites the Commission’s recent decisionin Lisbon Contractors, Inc., 84 OSAHRC __, 11 BNA OSHC 1971, 1984-85 CCH OSHD ? 26,924(No. 80-97, 1984), which held that a Caterpillar 235 backhoe identical to the one usedhere is not a \”crane\” within the meaning of section 1926.550(a)(9), the cranebarricading standard.Lisbon is not controlling, however, because that decision involved section 1926.550(a)(9).Section 1926.550(a)(15), the section cited in this case, is different from section1926.550(a)(9) and other sections of the crane standard in that it expressly was madeapplicable to non-crane equipment, including backhoes, by a provision in Subpart O,section 1926.600(a)(6). Section 1926.600(a)(6) provides that \”[a]ll equipment coveredby this subpart [Subpart O] shall comply with the requirements of ? 1926.550(a)(15) whenworking or being moved in the vicinity of power lines or energizedtransmitters.\”[[2]] It is clear that this Caterpillar 235 backhoe is covered bySubpart O. Section 1926.602(b), a provision within Subpart O, is captioned\”Excavating and other equipment\” and expressly mentions backhoe attachments atsection 1926.602(b)(1). Section 1926.602(b)(3) cross-references several other standards,at least one of which– Power Crane and Shovel Association Standard No. 3 of 1969, MobileHydraulic Excavator Standards, section 2.0.1–specifically covers backhoes. Finally,Concrete states that its backhoe 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)–ClearanceSection 1926.550(a)(15)(i) requires that, where electrical distribution or transmissionlines have not been deenergized or insulated, the \”Minimum clearance between thelines and any part of the crane or load shall be 10 feet.\” Three electric power linesabove Concrete’s backhoe were neither deenergized nor insulated. The judge found that therequired clearance from energized lines was not maintained, for the backhoe contacted apower line, a fact not in dispute. The only issue on review is whether the Secretaryproved that Concrete knew or with the exercise of reasonable diligence could have known ofand prevented the violation. 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 he did.[[3]]Concrete was putting in a waterline alongside a road in Groveport, Ohio. A Caterpillar 235backhoe excavator was used to dig a trench and lay pipe sections. The trench was locatedunder three power lines, each carrying 7,620 volts. At one point the lines were about 28feet above ground level. Given the standard’s requirement of a ten foot clearance,Concrete had 18 feet in which to maneuver the entire backhoe under that point. At anotherpoint, the three lines hung 22 feet off the ground, leaving only 12 feet in which tomaneuver the backhoe. At the time of the alleged violation, approximately 1500-2000 feetof pipe had been laid underneath the power lines. Each section of the steel- lined utilitypipe was 20 feet long, 50 inches in diameter, and weighed 11,800 pounds.The trench was dug in sections 11 or 12 feet wide and was long enough for one piece ofpipe to be laid at a time. After digging a new section of trench, the backhoe operatorwould move the backhoe twenty feet back from the opening, in a line parallel to the road.The operator then rotated the backhoe’s superstructure 90 degrees clockwise and extendedthe backhoe arm about 30-35 feet across the road to where the pipe sections were stored.Concrete had designated an employee to observe the clearance of the backhoe from theoverhead power lines and to assist in lowering the pipe section into the trench. Theobserver would attach a sling around the pipe and hook the sling and pipe to the backhoebucket. The backhoe operator then dragged the pipe toward the machine until enoughleverage was gained to raise the pipe off the ground. The arm could be extended a maximumof about 25 feet and still maintain leverage to raise the pipe. The operator then pivotedthe arm with its load back (not quite a full 90 degrees) toward the open trench, moved thebackhoe forward until the pipe was next to the trench, again pivoted the arm until thepipe was above the trench, and lowered it into the trench.While the pipe was suspended near the trench, the observer would grasp the end of the pipeclosest to the backhoe to steady it. When the pipe was about to be lowered into thetrench, the observer would be standing in front of the backhoe at the edge of the trench.This observer or a worker in the trench would signal the backhoe operator to lower thepipe. The backhoe operator testified that the observer’s assistance was necessary toensure that safe clearance was maintained. In his words: \”I told him to watch thewires overhead. And, he’d have to signal me when I got next to the trench because Icouldn’t watch him and watch the people below [workers in the trench] too.\” Theintrusion into the ten-foot zone occurred as the operator was about to lower a pipesection into the trench 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 knuckle joint made contactwith one of the lines, electrocuting the observer.Before trenching operations were begun, Concrete met with employees of the electricutility. They reviewed the locations of utility poles and underground power lines anddiscussed ways of ensuring that the trenching operation would not undermine the footingsof the poles. The height of the lines, the adequacy of the clearance from them, and thepossibility of deenergizing or temporarily insulating the lines were not discussed,because Concrete’s representative believed there would be sufficient room for the backhoeto safely perform its work. The electric utility could have deenergized the lines atConcrete’s request and at Concrete’s expense, as it later did. The record does not showwhether the lines could have been insulated.After the meeting but before it began digging operations, the company also conducted a\”dry, run\” with the Caterpillar 235. On the basis of \”eyeball\”estimates during this \”dry run,\” Concrete’s job superintendent, Lusignolo,concluded that the wires ranged from 25 to 35 feet in height and that there would be about13 feet of clearance. The record does not reflect whether the dry run was con ducted undera midpoint, where the lines would hang lowest, or whether a pipe and sling arrangementsimilar to that being used at the time of the alleged violation were employed. Nomeasurements were taken during the dry run.At the hearing, the height reached by the backhoe arm, particularly its knuckle joint,became a focus of attention. The operator of the backhoe testified that the knuckle jointwas about 18 feet high during the pipe-lowering portion of the operation. Concrete’s jobsuperintendent, Lusignolo, estimated that the knuckle joint reached a height of 14 to 15feet. Concrete also introduced a photograph showing the height of the knuckle joint as 16feet and the height of two hydraulic lines attached to the backhoe arm’s knuckle joint asnearly 18 feet during a purported simulation of the operation.[[4]]The judge found that the trenching operation was conducted in a manner that Concretereasonably should have known would encroach on the 10-foot zone around the power lines, asit did. This finding is fully supported by the facts. The sling that Concrete usedextended about eight feet from the top of the pipe to the hook on the backhoe. The pipewas over four feet in diameter and was carried one foot off the ground. The height of therigging and load together was therefore at least thirteen feet. This meant that in orderto maintain a 10-foot clearance under a 28-foot-high power line, the operator had onlyfive feet in which to maneuver the arm of the backhoe. Under a 22-foot-high line, therewould have been no room at all in which to maneuver without encroaching into the 10-footzone.[[5]]That there was no margin for error is apparent from an examination of the specifics of thepipe-lowering operation. Both the backhoe operator and Concrete’s superintendent testifiedthat, after the backhoe arm picked up a pipe section but before the backhoe and the pipemoved forward to the open trench, the backhoe arm was extended 25 feet horizontally. Oncethe pipe was next to the trench, the backhoe arm was pivoted horizontally several feet tothe left until the fifty- inch-wide pipe section cleared the edge of the twelve-foot-widetrench.[[6]] The pipe 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 then 18 feet high.This meant, under the employer’s own view, that only inches of clearance from the ten-footzone were left when the backhoe was operated under lines slightly higher than 28 feet, andthat no clearance whatsoever was left when it was operated under 28-foot-high lines. Under25-foot- high lines, which was the lower end of the range of heights estimated byConcrete’s supervisor during the dry run, the backhoe arm assembly would encroach threefeet into the ten foot zone. Under the 22-foot height measured in the area in whichConcrete was working the backhoe arm would encroach six feet.We find that, had Concrete exercised reasonable diligence, it could have known of andprevented the violation. Concrete was conducting a series of operations under threeenergized power lines that it knew varied in height and were close enough to pose a gravedanger. It elected not to have the lines deenergized by the local power company and choseinstead to maintain a ten-foot clearance from the lines. Yet, with a minimum of foresightand effort, Concrete could have discovered that its rigging arrangement and pipe-layingprocedure left no room in which to maneuver the backhoe arm even assuming the accuracy ofits own estimate of the height of the lines, the height. reached by the backhoe arm andits ability to maneuver the machine precisely within very narrow limits. In fact,Concrete’s backhoe could not be operated with such precision, as evidenced by the factthat its knuckle joint contacted a line that was nearly 28 feet high, at least ten feethigher than any of Concrete’s witnesses thought the knuckle joint would be. Thecircumstances of this case demonstrate that Concrete failed to exercise reasonablediligence in maintaining a ten-foot safety margin. We therefore affirm item 1(a).Item 1(b): Section 1926.550(a)(15)(iv)–ObserverSection 1926.550(a)(15)(iv) requires that \”[a] person shall be designated to observeclearance of the equipment and give timely warning for all operations where it isdifficult for the operator to maintain the desired clearance by visual, means[.]\”Chairman Buckley and Commissioner Cleary are divided over whether, the observerrequirement was violated.Commissioner Cleary agrees with the judge’s finding that the employer failedto comply with the standard. In Commissioner Cleary’s view, the standard requires morethan the mere provision of an observer. It requires that the observer not be assignedadditional duties that prevent him from assuring that no part of the equipment or its loadcomes within ten feet of energized power lines. Here, Concrete’s job superintendentassigned its observer the additional task of assisting the backhoe operator in loweringthe pipe into the trench by having him steady the load and guide it into the trench. Theso-called observer appears to have been, in actuality, a helper or rigger. The backhoeoperator testified without contradiction that when a pipe section was about to be loweredinto the trench–the moment when the backhoe boom was closest to the power line –it was\”crucial\” that the attention of the observer be directed at the pipe. InCommissioner Cleary’s view, this unrebutted testimony establishes that the employer didnot designate a person to \”observe clearance\” and \”give timelywarning\” to the backhoe operator within the meaning of the standard.[[7]] In anyevent, as the Commission’s discussion of the clearance violation demonstrates, Concretehad set up its pipe-laying procedure in such a way that repeated violations of theten-foot safety zone were inevitable. Its \”observer\” could therefore havereasonably been expected to give warning only of impending contact with a power line,rather than intrusion into the safety zone. So hollow a \”designation\” of anobserver violates the standard. Commissioner Cleary would therefore affirm item 1(b).In Chairman Buckley’s view, the judge erred in affirming this citation item. Contrary tothe Secretary’s argument to the judge, the standard does not require that an observer haveno other, duties to perform and that he devote all his attention to observing clearance.The standard requires only that an employee be designated to observe clearance and givetimely warning. The record does not show that this was not done. Although the Secretaryclaimed that an observer was assigned duties that prevented him from adequately ensuringthat clearance was maintained, the record shows at most that he had some other duties toperform. During the pipe-laying operation, the observer would, in the operator’s words,\”glance\” at the workers in the trench. The record does not show that theobserver’s other duties prevented him from effectively carrying out his task of observingclearance. At most it shows that he was required to perform separate tasks during theoperation. That these tasks did not interfere with each other is demonstrated by the jobsuperintendent’s unrebutted testimony that he occasionally substituted for the observerand was able both to maintain the required clearance and steady the pipe. Furthermore, theobserver was positioned where he could clearly and closely observe the proximity of theoverhead power lines to the slowly-moving arm of the backhoe. At the point where the pipewould be lowered into the ground and the observer’s gaze would shift to the pipe fittersin the trench, the arm of the backhoe had already reached the point at which it wasclosest to the power lines. There is no evidence to support a finding that the observercould not timely 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 accident that, warning wasgiven or that a warning was given but ignored. Yet, neither inference could support afinding that the observer’s duties, if properly discharged, precluded a timely warning.Accordingly, Chairman Buckley would conclude that the judge erred in finding a violationof section 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 the judge’s disposition butaccord it the precedential value of an unreviewed judge’s decision.[[8]] See Life ScienceProducts Co., 77 OSAHRC 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). The judge assessed atotal penalty of $500 for both the clearance and observer violations. Chairman Buckleywould assess a penalty of $500 for the clearance violation alone and would assess nopenalty with respect to the observer item, which he ordinarily would vacate. CommissionerCleary agrees with the judge’s combined assessment. Accordingly, the two Commissionersaffirm the judge’s decision with respect to citation item 1(b) but accord this affirmancethe precedential value of an unreviewed judge’s decision. The judge’s decision withrespect to citation item 1(a) is affirmed without qualification. A total penalty of $500is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JAN 25 1985\u00a0FOOTNOTES: [[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 have been deenergized andvisibly grounded at point of work or where insulating barriers, not a part of or anattachment to the equipment or machinery, have been erected to prevent physical contactwith 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 lines and any part ofthe crane or load shall be 10 feet;* * * (iv) A person shall be designated to observe clearance of the equipment and give timelywarning for all operations where it is difficult for the operator to maintain the desiredclearance by visual means[.][[2]]In Kent Nowlin Construction Co., 80 OSAHRC 39\/A10, 8 BNA OSHC 1286, 1980CCH OSHD ? 24,458 (Nos. 76-191 & 76-192, 1980), and Tri-City Construction Co., 80OSAHRC 62\/C5, 8 BNA OSHC 1567, 1980 CCH OSHD ? 24,557 (No. 77-3668, 1980), the Commissionapplied the crane clearance standard through section 1926.600(a)(6) to backhoes that hadbeen operated 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 to maintain ten feetof clearance between its backhoe and an overhead power line, not that the backhoecontacted the power line. Our inquiry here is therefore confined to whether Concreteexercised reasonable diligence in attempting to maintain this clearance, rather than inavoiding contact with the wire. The contact with the wire is merely evidence that theclearance was not maintained and that part of the backhoe in fact reached a height of 28feet. See Concrete Construction Co., 76 OSAHRC, 47\/A2, 4 BNA OSHC 1133, 1135 n.3, 1975-76CCH OSHD ? 20,610, p. 24,664 n.3 (No. 2490, 1976).[[4]]The photograph did not necessarily represent the conditions that existedat the time of the alleged violation. The photograph depicted the backhoe carrying aconsiderably shorter, and presumably lighter, piece of pipe than was actually installed,which may have permitted the am of the backhoe to be more extended and the knuckle jointlower than was the case during actual operations. In addition, a shorter sling than thatactually used is shown, while the pipe in the photograph appears to have been suspended atground level or in a shallow trench slightly below ground level. During the actualpipe-laying, the pipes were carried a foot off the ground. The Secretary objected to theintroduction of this photograph on the ground that it did not fairly represent the actualpipelowering operation. The record demonstrates, however, that, even if the photograph’sdepiction of the backhoe arm’s height as 18 feet is accepted, Concrete should have knownthat its backhoe would encroach upon the 10-foot zone.[[5]]The violation in this case did not occur precisely at a midpoint. One ofthe exhibits introduced into evidence shows that the backhoe contacted the power line some28 feet west of its midpoint. Inasmuch as a section of pipe is lowered every 20 feet, andthe backhoe was working from west to east, the backhoe would have been maneuvered undereven lower-hanging power lines during the next pipelaying operation.[[6]]On this point, we agree with Judge Brady’s understanding of the testimony. Theemployer claims that this understanding was erroneous. It argues that the operator again\”boomed out\” the backhoe arm before or while lowering the pipe section. We findthat this version of events is not supported by the evidence. The job superintendenttestified that the backhoe 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 he started to move the machineforward, and that he lowered the arm after the observer signaled him to do so.[[7]]Commissioner Cleary does not agree with the employer’s contention thatthis citation item is duplicative of the allegation that it violated the clearancerequirement.[[8]]Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken by the Commission with the affirmative vote of two members. Presently, theCommission has two members as a result of a vacancy.”