“SECRETARY OF LABOR,Complainant.v.FLINTCO, INC.,Respondent.OSHRC Docket No. 90-2572_ORDER_On September 22, 1992, the Secretary filed a Notice of Withdrawal in theabove-captioned case. The Commission acknowledges receipt of theSecretary’s Notice of Withdrawal and sets aside that portion of theJudge’s Decision and Order affirming the alleged violation of 29 C.F.R.? 1926.21(b)(2). There being no matters remaining before the Commissionrequiring further consideration, the Commission orders theabove-captioned case dismissed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: September 28, 1992————————————————————————SECRETARY OF LABOR,Complainant.v.FLINTCO, INC.,Respondent.OSHRC Docket No. 90-2572APPEARANCES:Janice L. Holmes, Esquire George R. Carlton, Jr., EsquireDallas, Texas Dallas, TexasFor the Complainant For the Respondent.Before: Administrative Law Judge Stanley A Schwartz_DECISION AND ORDER_This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”the Commission\”) pursuant to section 10 of theOccupational Safety and Health Act of 1970 29 U.S.C. et seq. (\”theAct\”). The Occupational Safety and Health Administration (\”OSHA\”‘)conducted an inspection of a construction site in Tulsa, Oklahoma onJuly 26, 1990, after a tragic accident earlier that day in which a craneoperated by one of Respondent’s employees fell over and caused the deathof a passing motorist. The inspection resulted in the issuance of aserious citation alleging violations of 29 C.F.R. ?? 1926.21(b)(2) and1926.550(a)(1). Respondent contested both of the citation items, and ahearing was held on June 7, 1991. A background of the facts of this caseis set out below, followed by the relevant testimony and a discussion ofthe alleged violations.*Background*On the day of the Accident, Flintco was engaged in an office buildingconstruction project at the intersection of Utica Avenue and ThirteenthStreet. Kevin Martin, a Flintco employee, was attempting to position aLorain 27.5-ton \”rough terrain\” crane in order to lift material off of ascaffold.[[1]] Martin first drove the crane towards the building andthen backed it towards Thirteenth Street, with the boom and its attachedjib in a lowered position in front of the rig. He then drove towards thebuilding again and as he neared the scaffold he raised the boom to avoidentangling it. Since he was somewhat off center of the loading area, heproceeded to back the crane towards Thirteenth Street again; as he didso, the crane became unbalanced and fell over, resulting in the jibimpacting on a passing vehicle. (Tr. 11-12; 29-35; 39-40; 45-50; 80-88;195-196; C-1-2; C-9-10; R-1).Gerald Young, the OSHA compliance officer (\”CO\”) who inspected the site,saw the crane laying on its side with the boom in a fully elevatedposition and the outriggers not deployed; the jib had been removed toallow traffic to pass. There were identical load charts and operatinginstructions on the fuel tank and on the inside of the cab of the crane.The load chart stated that \”[t]he load should be restrained fromswinging. No on tire operation with jib erected.\” The operatinginstructions stated that the \”[u]se of jibs, lattice-type boomextension, or fourth section pullout extended is not permitted for pickand carry operations.\” The CO concluded the operation of the crane withthe jib attached and without using the outriggers violated the loadchart and caused the accident. He also concluded Martin had not beeninstructed in the load chart provisions. (Tr. 8; 11-39: 51-55; C-1-10).*The Testimony*Gerald Young, the CO, has been with OSHA for sixteen years and has a BSin aeronautical engineering technology. He has never operated a crane,but has had OSHA training in this regard. Young testified that the jib,which is used for lifting, swivels off to the side when not in use, andthat while it is semi-permanently attached to the end boom, themanufacturer’s instructions prohibit it from being on the boom when thesitting on its tires. His opinion was that on-tire operation includesmoving and positioning a crane, and that the manufacturer’s instructionsmeant the rig could not be operated with the jib attached without theoutriggers being deployed. (Tr. 8-10; 29-30; 41-43; 55-61).Kevin Martin has been employed by Flintco since 1982; he works primarilyas a carpenter, but also performs crane operation. Martin testified hedefined on-tire operation as any lifting or picking up and carrying of aload without the use of outriggers. He said it was his understanding,based on his reading of the operator’s manual and lifting charts for theLorain, that while pick and carry operations were forbidden with the jiberected, simply moving the rig with the jib erected was not. (Tr. 62-65;84-85; 103-04; 193-95). Ronald Rosebrough has worked for Flintco since1966, and has operated cranes for eight or nine years. Rosebroughtestified he would consider driving a rig with the outriggers in and theboom raised an on-tire operation. He further testified he had read themanual and lead charts for the Lorain, and that as far as he wasconcerned, it was permissible to both drive the rig and use it for pickand carry operations with the jib attached and the outriggers in. (Tr.90-93. 110-15).Michael Ellis has been a business representative of the InternationalUnion of Operating Engineers, Local 627 (\”the Union\”) for eleven years,and has been its assistant business manager for about five years: he wasa full-time crane operator for four or five years before becoming aUnion representative. Ellis testified the Union’s membership includescrane operators, that he investigates accident sites in connection withhis position, and that he viewed the subject size on July 26, 1990. Heopined that positioning a crane with the boom up is an on-tireoperation, and that C-7, the Lorain’s load chart, prohibits thisactivity with the jib attached. Ellis noted it is industry practice toput a jib on and leave it on, and that while it is permissible to travelon tire with the jib lowered, a crane should not be moved with the jibraised without using the outriggers. (Tr. 116-26; 132-34; 137).Andre Whitson has been the Union’s safety director and businessrepresentative for six years. He has 22,000 hours of crane operationexperience and has run the Union’s apprenticeship program for ten years.He also sits on the Union’s Safety and Health Portable and HoistingCommittee, which works on ANSI standards. Whitson testified that movinga crane with the job erected, boom raised and outriggers in an on-tireoperations. He said the only way to travel under such circumstanceswould be with the outriggers out and fairly close to the ground, whichwould still violate C-7. Whitson noted that while moving a crane ontires with the jib attached is a common practice, the activity istotally against manufacturers’ instructions. (Tr. 140-50).Walter Dickinson is employed by United Steel Erectors, a crane rentaland steel erection company. He has 25 to 30 years experience as a craneoperator and has also worked as an operator’s foreman. Dickinsontestified his company had rented cranes to Flintco, and that it providedFlintco the Grove crane used at the site. He said the major differencebetween the cranes was that the Lorain was \”boom-heavy,\” which makes adifference in regard to stability. He also said that in his opinion, anon-tire operation consists of picking up a load and carrying it with theoutriggers sucked in, as opposed to maneuvering a crane without a load,which he described as \”setting up.\” Dickinson noted he moves cranes ontire with the jib attached and boom raised as a matter of course. Hefurther noted he had reviewed the operator’s manual and other materialsfor the subject crane. He understood C-7 to prohibit picking up a loadwith the jib attached without the outriggers, and said there was nothingin the literature he had seen to prohibit moving the crane with the jibattached and without a load, whether the boom was up or down. (Tr. 161-70).Richard Murray has a Ph.D. in mechanical engineering. He is currently inindependent consulting engineer, and was previously a department headand tenured professor in the College of Mechanical Engineering atOklahoma State University. Dr. Murray testified he had examined thecrane near the end of July, 1990, and that he had performed tests todetermine its stability. He concluded it had fallen over due to a basicinstability problem which was augmented by its rear axle oscillationvalve. He explained that the valve allows the rear axle to pivot andconform to the ground, as opposed to the front axle, which does notpivot. Dr. Murray noted that although this design allows the unit tomove over uneven ground, it reduces the stability of the crane andsubjects it to tipping over. He also noted the axle automatically lockswhenever the boom moves ten degrees off center which restores stability.His opinion was that the jib being attached in this case with thestraight forward whether it was raised or not, actually added stabilityto the rig (Tr. 171-91; R-2-3).Dr. Murray further testified that although the operator’s manualmentions the axle oscillation valve. There is nothing in themanufacturer’s literature which would wan an operator of the stabilityproblems caused by the valve. He said an appropriate warning would be toconvey the crane’s tendency to tip over when the axle is unlocked. Healso said it would be possible to have a manual lock that would permitthe operator to lock the axle in certain situations, but that doing sowould take away the crane’s ability to move over rough terrain. Dr.Murray observed that while he did not review the crane’s designspecifications, its design is typical of all forklift trucks, which mustgo through ANSI mandated stability tests. He was not aware of thetesting the manufacturer conducted, other than its conformance with SAEcodes, but he was sure it was more in depth than his own. (Tr. 176-77;181-89).Dr. Murray noted he was not a crane operator, but that he had beenaround them and had familiarized himself with the industry terminologythrough his investigation. It was his belief that an on-tire operationis one in which a load is picked up and moved, and that maneuvering acrane in order to pick up a load is called a \”set-up.\” Dr. Murray wasalso familiar with the operator’s manual and notices in the crane, noneof which, in his opinion, prohibits the movement of the crane with thejib attached and the outriggers up. (Tr. 174-76: 189-90)._29 C.F.R. ? 1926.550(a)(1) _Citation item number 2 alleges a violation as follows:29 CFR 1926.550(a)(1): The employer did not comply with themanufacturer’s specifications and limitations applicable to theoperation of cranes or derricks: On jobsite: employees operated a LorainLRT 275D rough terrain crane in \”On Tire\” operations with jib erectedprohibited by manufacturer’s specifications which is shown on load chartposted on crane, exposing employees and operators to the hazard of cranebeing turned over.As noted supra, the load chart instructions for the subject craneprohibit on-tire operation with the jib erected. The OSHA standard doesnot define on-tire operation. It does refer an employer to an applicablemanufacturer’s specifications and limitations. However, none of themanufacturer’s literature presented at the hearing defines this term.Moreover, although the manufacturer’s instructions refer to ANSI B30.5,that standard likewise provides no definition of on-tire operation. SeeR-1, General Notes. The question to be resolved, therefore, is whetherMartin’s maneuvering of the crane on the day of the accident constitutedon-tire operation.Seven witnesses with varying degrees of experience in regard to cranesoffered their opinions as to the meaning of on-tire operation. Afterconsidering these opinions, I conclude that Dickinson’s is the mostpersuasive based on his many years of crane operation experience. Hetestified that an on-tire operation consists of picking up a load andcarrying it with the outriggers sucked in, as opposed to maneuvering thecrane without a load, which he called \”setting up.\” Based on thistestimony, and the fact that neither the manufacturer’s literature norANSI B30.5 defines the term. I am not convinced that Martin’spositioning of the crane was an on-tire operation; to the contrary, therecord indicates his activities were more in the nature of \”setting up\”the crane in order to perform a lifting operation. Under the uniquecircumstances of this case, I find the Secretary has not met her burdenof proving by a preponderance of the evidence that the limited maneuverperformed by Martin was contrary to the manufacturer’s specifications.In so finding, I am well aware of the fact that the crane fell over andcaused the death of a motorist. However, it is well settled byCommission precedent that the occurrence of an accident, no matter howtragic, does not establish a violation. Moreover, while the Secretarydisagrees with Dr. Murray’s opinion, his testimony about the oscillationvalve was both reasonable and credible and is instructive as to why thecrane became unbalanced and tipped over. This testimony, while notdispositive, is relevant and provides a possible alternative explanationfor the accident. At the very minimum, it supports the conclusion thatthe Secretary has failed to establish a violation of 29 C.F.R. ?1926-550(a)(1). This citation item is vacated._29 C.F.R. ? 1926.21(b)( 2)_Citation item number 1 alleges a violation as follows:29 CFR 1926.21(b)(2): The employer did not instruct each employee in therecognition and avoidance of unsafe conditions and the regulationsapplicable to his work environment to control or eliminate any hazardsor other exposure to illness or injury: On jobsite employees operated aLorain LRT 275D rough terrain crane, in an \”On Tire\” manner travelingwith boom raised and jib erected, exposing operators and employees tothe hazard of crane being turned over.Although the foregoing refers specifically to the operation of the craneon the day of the accident, it is clear from the record the parties weretrying the general issue of whether Flintco instructed its employees inthe hazards of crane operation. Consequently, the fact that Martin’sactions did not constitute on-tire operation does not, standing alone,require vacating this item.Respondent contends it did not violate the standard because it providedcomprehensive instructions in regard to crane operation. The recordshows that Martin, Rosebrough and their supervisor did go over theoperator’s manual for the Lorain. It also shows that both Rosebrough andMartin read the charts in the crane, and that Rosebrough, as the moreexperienced operator, instructed Martin as to its capacity andoperation. (Tr. 36; 39; 51- 52; 71; 74-77; 84; 97-110; 113-14).Regardless, Rosebrough clearly testified he believed it was permissibleto perform pick and carry operations with the Lorain Crane with the jibattached and the outriggers in. (Tr. 113-15).As noted supra, the manufacturer’s instructions state that the \”[u]se ofjibs . . . is not permitted for pick and carry operations.\” (C-8; R-1,General Notes). 1926-21(b)(2) requires employers to provide adequateinstructions regarding the hazards of the workplace. The recorddemonstrates that Rosebrough, who the company trusted to instructMartin, felt comfortable ignoring specific manufacturer’s instructionswhich, unlike on-tire operation, are beyond dispute as to their meaning.It follows that Rosebrough was not provided adequate instructions withrespect to the hazards of crane operation. A violation of 29 C.F.R. ?1926.21(b)(2) has been established. This citation item is affirmed as aserious violation, and the proposed penalty of is assessed.*Conclusions of Law*1. Respondent, Flintco Inc., is engaged in a bussiness affectingcommerce and has employees within the meaning of section 3(5) of theAct. The Commission has jurisdiction of the parties and of the subjectmatter of the proceeding.2. On July 26, 1990, Respondent was in serious violation of 29 C.F.R. ?1926.21(b)(2).3. On July,26, 1990, Respondent was not in violation of 29 C.F.R. ?1926.550(a)(1).*Order*On the basis of the foregoing Findings of Fact and Conclusions of Law,It Is ORDERED that:1. Item 1 of citation number 1 is AFFIRMED as a serious violation, and apenalty of $I,000.00 is assessed.2. Item 2 of citation number 1 is VACATED.Stanley M. SchwartzAdministrative Law JudgeDATE: MAY 11, 1992————————————————————————*FOOTNOTES: *[[1]] The record shows Flintco had leased two cranes at the site. Onewas a 15- or 18-ton Grove used from May to about mid-July, 1990; theother was the Lorain, which was in use after July 4, 1990. (Tr. 34-36;65-66; 70-72; 76-78; 95-99; 162; 166-67).”