“Docket No. 90-2572 SECRETARY OF LABOR,Complainant.v.FLINTCO, INC., Respondent.OSHRC Docket No. 90-2572ORDEROn September 22, 1992, the Secretary filed a Notice ofWithdrawal in the above-captioned case. The Commission acknowledges receipt of theSecretary’s Notice of Withdrawal and sets aside that portion of the Judge’s Decision andOrder affirming the alleged violation of 29 C.F.R. ? 1926.21(b)(2). There being nomatters remaining before the Commission requiring further consideration, the Commissionorders the above-captioned case dismissed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: September 28, 1992SECRETARY OF LABOR,Complainant.v.FLINTCO, INC., Respondent.OSHRC Docket No. 90-2572APPEARANCES:Janice L. Holmes, Esquire\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 George R. Carlton, Jr., EsquireDallas, Texas\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Dallas,TexasFor the Complainant\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Forthe Respondent.Before: Administrative Law Judge Stanley A SchwartzDECISION AND ORDERThis is a proceeding brought before the Occupational Safety andHealth Review Commission (\”the Commission\”) pursuant to section 10 of theOccupational Safety and Health Act of 1970 29 U.S.C. et seq. (\”the Act\”). TheOccupational Safety and Health Administration (\”OSHA\”‘) conducted an inspectionof a construction site in Tulsa, Oklahoma on July 26, 1990, after a tragic accidentearlier that day in which a crane operated by one of Respondent’s employees fell over andcaused the death of a passing motorist. The inspection resulted in the issuance of aserious citation alleging violations of 29 C.F.R. ?? 1926.21(b)(2) and 1926.550(a)(1).Respondent contested both of the citation items, and a hearing was held on June 7, 1991. Abackground of the facts of this case is set out below, followed by the relevant testimonyand a discussion of the alleged violations.BackgroundOn the day of the Accident, Flintco was engaged in an officebuilding construction project at the intersection of Utica Avenue and Thirteenth Street.Kevin Martin, a Flintco employee, was attempting to position a Lorain 27.5-ton \”roughterrain\” crane in order to lift material off of a scaffold.[[1]] Martin first drovethe crane towards the building and then backed it towards Thirteenth Street, with the boomand its attached jib 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 avoid entangling it.Since he was somewhat off center of the loading area, he proceeded to back the cranetowards Thirteenth Street again; as he did so, the crane became unbalanced and fell over,resulting in the jib impacting 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\”) whoinspected 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 to allow traffic topass. There were identical load charts and operating instructions on the fuel tank and onthe inside of the cab of the crane. The load chart stated that \”[t]he load should berestrained from swinging. No on tire operation with jib erected.\” The operatinginstructions stated that the \”[u]se of jibs, lattice-type boom extension, or fourthsection pullout extended is not permitted for pick and carry operations.\” The COconcluded the operation of the crane with the jib attached and without using theoutriggers violated the load chart and caused the accident. He also concluded Martin hadnot been instructed in the load chart provisions. (Tr. 8; 11-39: 51-55; C-1-10).The TestimonyGerald Young, the CO, has been with OSHA for sixteen years andhas a BS in aeronautical engineering technology. He has never operated a crane, but hashad OSHA training in this regard. Young testified that the jib, which is used for lifting,swivels off to the side when not in use, and that while it is semi-permanently attached tothe end boom, the manufacturer’s instructions prohibit it from being on the boom when thesitting on its tires. His opinion was that on-tire operation includes moving andpositioning a crane, and that the manufacturer’s instructions meant the rig could not beoperated with the jib attached without the outriggers being deployed. (Tr. 8-10; 29-30;41-43; 55-61).Kevin Martin has been employed by Flintco since 1982; he worksprimarily as a carpenter, but also performs crane operation. Martin testified he definedon-tire operation as any lifting or picking up and carrying of a load without the use ofoutriggers. He said it was his understanding, based on his reading of the operator’smanual and lifting charts for the Lorain, that while pick and carry operations wereforbidden with the jib erected, 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 since 1966, andhas operated cranes for eight or nine years. Rosebrough testified he would considerdriving a rig with the outriggers in and the boom raised an on-tire operation. He furthertestified he had read the manual 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 pick and carryoperations with the jib attached and the outriggers in. (Tr. 90-93. 110-15).Michael Ellis has been a business representative of theInternational Union of Operating Engineers, Local 627 (\”the Union\”) for elevenyears, and has been its assistant business manager for about five years: he was afull-time crane operator for four or five years before becoming a Union representative.Ellis testified the Union’s membership includes crane operators, that he investigatesaccident sites in connection with his position, and that he viewed the subject size onJuly 26, 1990. He opined that positioning a crane with the boom up is an on-tireoperation, and that C-7, the Lorain’s load chart, prohibits this activity with the jibattached. Ellis noted it is industry practice to put a jib on and leave it on, and thatwhile it is permissible to travel on tire with the jib lowered, a crane should not bemoved with the jib raised 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 operation experience and hasrun the Union’s apprenticeship program for ten years. He also sits on the Union’s Safetyand Health Portable and Hoisting Committee, which works on ANSI standards. Whitsontestified that moving a crane with the job erected, boom raised and outriggers in anon-tire operations. He said the only way to travel under such circumstances would be withthe outriggers out and fairly close to the ground, which would still violate C-7. Whitsonnoted that while moving a crane on tires with the jib attached is a common practice, theactivity is totally against manufacturers’ instructions. (Tr. 140-50).Walter Dickinson is employed by United Steel Erectors, a cranerental and steel erection company. He has 25 to 30 years experience as a crane operatorand has also worked as an operator’s foreman. Dickinson testified his company had rentedcranes to Flintco, and that it provided Flintco the Grove crane used at the site. He saidthe major difference between the cranes was that the Lorain was \”boom-heavy,\”which makes a difference in regard to stability. He also said that in his opinion, anon-tire operation consists of picking up a load and carrying it with the outriggers suckedin, as opposed to maneuvering a crane without a load, which he described as \”settingup.\” Dickinson noted he moves cranes on tire with the jib attached and boom raised asa matter of course. He further noted he had reviewed the operator’s manual and othermaterials for the subject crane. He understood C-7 to prohibit picking up a load with thejib attached without the outriggers, and said there was nothing in the literature he hadseen to prohibit moving the crane with the jib attached and without a load, whether theboom was up or down. (Tr. 161-70).Richard Murray has a Ph.D. in mechanical engineering. He iscurrently in independent consulting engineer, and was previously a department head andtenured professor in the College of Mechanical Engineering at Oklahoma State University.Dr. Murray testified he had examined the crane near the end of July, 1990, and that he hadperformed tests to determine its stability. He concluded it had fallen over due to a basicinstability problem which was augmented by its rear axle oscillation valve. He explainedthat the valve allows the rear axle to pivot and conform to the ground, as opposed to thefront axle, which does not pivot. Dr. Murray noted that although this design allows theunit to move over uneven ground, it reduces the stability of the crane and subjects it totipping over. He also noted the axle automatically locks whenever the boom moves tendegrees off center which restores stability. His opinion was that the jib being attachedin this case with the straight forward whether it was raised or not, actually addedstability to the rig (Tr. 171-91; R-2-3).Dr. Murray further testified that although the operator’smanual mentions the axle oscillation valve. There is nothing in the manufacturer’sliterature which would wan an operator of the stability problems caused by the valve. Hesaid an appropriate warning would be to convey the crane’s tendency to tip over when theaxle is unlocked. He also said it would be possible to have a manual lock that wouldpermit the operator to lock the axle in certain situations, but that doing so would takeaway the crane’s ability to move over rough terrain. Dr. Murray observed that while he didnot review the crane’s design specifications, its design is typical of all forklifttrucks, which must go through ANSI mandated stability tests. He was not aware of thetesting the manufacturer conducted, other than its conformance with SAE codes, but he wassure 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 hadbeen around them and had familiarized himself with the industry terminology through hisinvestigation. It was his belief that an on-tire operation is one in which a load ispicked up and moved, and that maneuvering a crane in order to pick up a load is called a\”set-up.\” Dr. Murray was also familiar with the operator’s manual and notices inthe crane, none of which, in his opinion, prohibits the movement of the crane with the jibattached 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 the operation of cranes orderricks: On jobsite: employees operated a Lorain LRT 275D rough terrain crane in \”OnTire\” operations with jib erected prohibited by manufacturer’s specifications whichis shown on load chart posted on crane, exposing employees and operators to the hazard ofcrane being turned over.As noted supra, the load chart instructions for the subjectcrane prohibit on-tire operation with the jib erected. The OSHA standard does not defineon-tire operation. It does refer an employer to an applicable manufacturer’sspecifications and limitations. However, none of the manufacturer’s literature presentedat the hearing defines this term. Moreover, although the manufacturer’s instructions referto ANSI B30.5, that standard likewise provides no definition of on-tire operation. SeeR-1, General Notes. The question to be resolved, therefore, is whether Martin’smaneuvering of the crane on the day of the accident constituted on-tire operation.Seven witnesses with varying degrees of experience in regard tocranes offered their opinions as to the meaning of on-tire operation. After consideringthese opinions, I conclude that Dickinson’s is the most persuasive based on his many yearsof crane operation experience. He testified that an on-tire operation consists of pickingup a load and carrying it with the outriggers sucked in, as opposed to maneuvering thecrane without a load, which he called \”setting up.\” Based on this testimony, andthe fact that neither the manufacturer’s literature nor ANSI B30.5 defines the term. I amnot convinced that Martin’s positioning of the crane was an on-tire operation; to thecontrary, the record indicates his activities were more in the nature of \”settingup\” the crane in order to perform a lifting operation. Under the unique circumstancesof this case, I find the Secretary has not met her burden of proving by a preponderance ofthe evidence that the limited maneuver performed by Martin was contrary to themanufacturer’s specifications.In so finding, I am well aware of the fact that the crane fellover and caused the death of a motorist. However, it is well settled by Commissionprecedent that the occurrence of an accident, no matter how tragic, does not establish aviolation. Moreover, while the Secretary disagrees with Dr. Murray’s opinion, histestimony about the oscillation valve was both reasonable and credible and is instructiveas to why the crane became unbalanced and tipped over. This testimony, while notdispositive, is relevant and provides a possible alternative explanation for the accident.At the very minimum, it supports the conclusion that the Secretary has failed to establisha 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 eachemployee in the recognition and avoidance of unsafe conditions and the regulationsapplicable to his work environment to control or eliminate any hazards or other exposureto illness or injury: On jobsite employees operated a Lorain LRT 275D rough terrain crane,in an \”On Tire\” manner traveling with boom raised and jib erected, exposingoperators and employees to the hazard of crane being turned over.Although the foregoing refers specifically to the operation ofthe crane on the day of the accident, it is clear from the record the parties were tryingthe general issue of whether Flintco instructed its employees in the hazards of craneoperation. Consequently, the fact that Martin’s actions did not constitute on-tireoperation does not, standing alone, require vacating this item.Respondent contends it did not violate the standard because itprovided comprehensive instructions in regard to crane operation. The record shows thatMartin, Rosebrough and their supervisor did go over the operator’s manual for the Lorain.It also shows that both Rosebrough and Martin read the charts in the crane, and thatRosebrough, as the more experienced operator, instructed Martin as to its capacity andoperation. (Tr. 36; 39; 51- 52; 71; 74-77; 84; 97-110; 113-14). Regardless, Rosebroughclearly testified he believed it was permissible to perform pick and carry operations withthe Lorain Crane with the jib attached and the outriggers in. (Tr. 113-15).As noted supra, the manufacturer’s instructions state that the\”[u]se of jibs . . . is not permitted for pick and carry operations.\” (C-8; R-1,General Notes). 1926-21(b)(2) requires employers to provide adequate instructionsregarding the hazards of the workplace. The record demonstrates that Rosebrough, who thecompany trusted to instruct Martin, felt comfortable ignoring specific manufacturer’sinstructions which, unlike on-tire operation, are beyond dispute as to their meaning. Itfollows that Rosebrough was not provided adequate instructions with respect to the hazardsof crane operation. A violation of 29 C.F.R. ? 1926.21(b)(2) has been established. Thiscitation item is affirmed as a serious violation, and the proposed penalty of is assessed.Conclusions of Law1. Respondent, Flintco Inc., is engaged in a bussinessaffecting commerce and has employees within the meaning of section 3(5) of the Act. TheCommission has jurisdiction of the parties and of the subject matter of the proceeding.2. On July 26, 1990, Respondent was in serious violation of 29C.F.R. ? 1926.21(b)(2).3. On July,26, 1990, Respondent was not in violation of 29C.F.R. ? 1926.550(a)(1).OrderOn the basis of the foregoing Findings of Fact and Conclusionsof Law, It Is ORDERED that:1. Item 1 of citation number 1 is AFFIRMED as a seriousviolation, and a penalty of $I,000.00 is assessed.2. Item 2 of citation number 1 is VACATED.Stanley M. SchwartzAdministrative Law JudgeDATE: MAY 11, 1992FOOTNOTES: [[1]] The record shows Flintco had leased two cranes at thesite. One was a 15- or 18-ton Grove used from May to about mid-July, 1990; the other wasthe Lorain, which was in use after July 4, 1990. (Tr. 34-36; 65-66; 70-72; 76-78; 95-99;162; 166-67).”