“SECRETARY OF LABOR,Complainant,v.LISBON CONTRACTORS, INC.,Respondent.OSHRC Docket No. 80-0097_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.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. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).A citation item alleging a failure to barricade the rotatingsuperstructure of a backhoe in accordance with 29 C.F.R. ?1926.550(a)(9) was issued to Lisbon Contractors. The standard requiresthat \”accessible areas within the swing radius of the rear of therotating superstructure of a crane . . . shall be barricaded . . ..\”[[1]] Administrative Law Judge William E. Brennan vacated the item onthe ground that the employer did not have fair notice that the standardapplied. We affirm the judge’s disposition, but for different reasons.The facts are not in dispute. Lisbon was using a Caterpillar 235crawler-type backhoe to dig a trench for a sewer line in Pleasant Gap,Pennsylvania. The backhoe’s rotating superstructure was not guarded orbarricaded. The compliance officer who conducted the inspectiontestified that he observed the backhoe lifting a steel trench box andlowering it into the open trench.The Secretary argued before Judge Brennan that the Commission decisionsin Gil Haugan, 79 OSAHRC 107\/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ? 24,105(Nos. 76-1512 & 76-1513, 1979), and _Tri-City Construction Co_., 80OSAHRC 9\/F12, 7 BNA OSHC 2189, 1980 CCH OSHD ? 24,267 (No. 76-4094,1980), required Lisbon to barricade the rotating superstructure of itsbackhoe in accordance with section 1926.550(a)(9). The Secretary arguedthat under these cases, the crane barricading standard applies if themachine in question is used to perform lifting functions usuallyperformed by cranes or derricks. Under this theory, the function oflifting and moving the trench box transformed the backhoe into a \”crane\”for purposes of the standard.Lisbon argued that section 1926.550(a)(9) did not apply because itsbackhoe is not a crane. Lisbon also argued that even if the standarddid apply, it did not have fair notice of this interpretation of thestandard at the time of the violation. At the time of the allegedviolation, Commission decisions had held that the crane barricadingstandard did not apply to backhoes. _See_ _Felton_ _Construction Co_.,76 OSAHRC 136\/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD ? 21,258 (No. 6759,1976); _see_ _also_ _Warner_ _Brothers, Inc._, 76 OSAHRC 138\/D7, 4 BNAOSHC 1841, 1976-77 CCH OSHD ? 21,257 (No. 8841, 1976). It was onlyafter the issuance of the citation that _Felton_ was overruled in _GilHaugan_. Tri-City was issued six weeks later.The judge agreed that Lisbon lacked fair notice that the standardapplied and vacated the citation item. He stated that \”there is noconceivable way this [employer] could have anticipated the Commission’schange in its precedent or have been on notice of the applicability ofthe cited standard to its backhoe.\” The Secretary’s petition fordiscretionary review was granted. On review, the Secretary no longerdisputes Lisbon’s claim that it lacked fair notice of the standard’sapplicability. Instead, he argues that the citation should be affirmedso that Lisbon is required in the future to comply with the standard asit was interpreted in _Gil Haugan_ and _Tri-City_. Lisbon vigorouslyargues, however, that the standard does not apply, that Commissionprecedent has created numerous practical difficulties unforeseen andunintended by the drafters of the crane standard, and that theCommission should re- examine its precedent in light of material notpreviously considered. We therefore conclude that disposition of thiscase on fair notice grounds would not address the central concern ofboth parties–the applicability of the standard.The primary question is whether this backhoe is a \”crane\” within themeaning of section 1926.550. We turn first to the language of section1926.550. That section lacks a scope and application provision statingthe machines or operations it governs. It is, however, entitled \”Cranesand Derricks.\” The specific provision before us, section1926.550(a)(9), mentions only \”cranes.\” Despite the importance of theterm, it is not defined anywhere in section 1926.550, and Commissiondecisions attempting to give it a meaning have been inconsistent anddivided. _Felton_ held that a machine with a backhoe attachment used tomove a trench box and lower pipe sections was not a \”crane.\” _Felton_was reaffirmed by _Warner Brothers_, which involved what was said to bea \”hybrid\” machine. _Gil Haugan_ later overruled _Felton_, and wasshortly followed by _Tri-City_. The latter two cases concerned amodified farm tractor and a backhoe respectively. Relying on the maximthat regulations adopted under remedial legislation must be liberallyconstrued, _Gil Haugan_ and _Tri-City_ held that section 1926.550applies to machines used to perform lifting functions usually performedby cranes or derricks, regardless of whether the machines wereoriginally designed for that function. None of the majority opinions inthese cases, however, examined the question of what a \”crane\” is withthe aid of the ANSI standard that section 1926.550 incorporates byreference. Yet, as Lisbon argues, that ANSI standard sheds much lighton the proper construction of section 1926.550.Section 1926.550 incorporates by reference at several points ANSIB30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.[[2]] ANSI B30.5-1968 defines a crawler crane as \”[a] crane consisting of arotating superstructure with power plant, operating machinery, and boom,mounted on a base, equipped with crawler treads for travel.\” ANSIB30.5-1968, section 5-0.2.1.1. Elsewhere in the ANSI standard, a \”boom\”is defined as a \”member hinged to the front of the rotatingsuperstructure with the outer end supported by ropes leading to a gantryor ‘A’ frame and used for supporting the hoisting tackle.\” Section5-0.2.2.12. Nothing we have seen indicates that this backhoe has a\”boom\” within the meaning of the ANSI standard, i.e., a member outfittedwith ropes, a gantry or \”A-frame,\” or hoisting tackle.[[3]]Furthermore, the ANSI standard expressly excludes backhoes. The scopesection of the ANSI standard provides: \”Within the general scopedefined in Section I, Volume B30.5 applies to crawler cranes . . . andany variations thereof which retain the same fundamentalcharacteristics.\” Section I provides that \”[t]his Code does _not_ applyto . . . shovels, dragline excavators, or _backhoes_.\” (Emphasisadded.) We therefore conclude that this backhoe is not a \”crane\” asthat term is used in section 1926.550.We recognize that this decision is inconsistent with _Tri-City_, whichinvolved equipment and facts nearly identical to those in this case. There a Caterpillar 235 backhoe was used to lift and lower pipe sectionsinto a trench. The Commission held that section 1926.550(a)(9) \”appliesto machines used to perform lifting functions usually performed bycranes or derricks, whether the machines were originally designed forthat purpose or not . . . .\” 7 BNA OSHC at 2191, 1980 CCH OSHD at pp.29,548-29,549, _quoting_ _Gil Haugan_, 7 BNA OSHC at 2007, 1979 CCH OSHDat p. 29,291. The rationale of _Tri-City_ was that differences in thespecific types of machines are irrelevant. The regulatory scheme of thestandards, however, does not support this conclusion. Section 1926.550is divided into paragraphs entitled \”Crawler, locomotive, and truckcranes,\” \”Hammerhead tower cranes,\” \”Overhead and gantry cranes,\”\”Derricks, and \”Floating cranes and derricks.\” See 29 C.F.R. ?1926.550(b)-(f). Their detailed requirements, and those of the threeANSI standards that they incorporate by reference,[[4]] were tailoredinstead to the particular configurations and mechanisms of cranes andderricks rather than to the machines’ functions. While we do not ruleout the possibility that the Secretary could draft standards governingmachines based on their function, he has not done so here._Gil Haugan_ and _Tri-City_ invoked the oft-repeated maxim thatregulation adopted under remedial legislation must be liberallyconstrued. Those decisions accorded no importance at all to the wordsof the standard or whether those words reflect a deliberate choice byits drafters. We cannot agree with this approach. The remedial purposeof the Act does not give the Commission license to ignore the standard’splain meaning. _See_ _Symons v. Chysler Corp. Loan Guarantee Board_,670 F.2d 238, 241 (D.C. Cir. 1981). As the Ninth Circuit has aptlystated, \”mere citation to OSHA’s remedial purpose . . . [cannot]substitute for analysis of the problem at hand.\” _Marshall v. AnacondaCo.,_ 596 F.2d 370, 377 n.6 (9th Cir. 1979). Yet, _Gil Haugan_ and_Tri-City_ did not analyze whether these machines are \”cranes\” under anydefinition or sense of the word. Those decisions did not discusswhether the OSHA drafter might have chosen to regulate these machinesbased on their configuration and operating characteristics rather thantheir function. Instead, they relied solely on the maxim of liberalconstruction and reasoned that a backhoe is a \”crane\” whenever it liftsobjects and presents the hazard addressed by one of the subsections of ?1926.550. The Secretary’s standards, which set policy, strike a balancebetween the protection of employees and the imposition of burdens onemployers. To ignore the words of the standard and the underlyingpolicy choices that they reflect, is to upset that balance andsubstitute a new one. That is not the function of an adjudicatorybody. _See_, _e.g_., _Minnesota v. Clover Leaf Creamery Co._, 449 U.S.456, 469 (1981); _United States v._ _Sisson_, 399 U.S. 267, 297-98 (1970).Nor do we share the assumption of those decisions that their manner ofconstruction will further the Act’s remedial purpose. The safety andhealth of employees cannot be served if employers that are subject tothe Act’s penalty provisions are not afforded fair notice of theirobligations under the Act. _See_ _Pennsuco Cement & Aggregates, Inc_.,80 OSAHRC 47\/A2, 8 BNA OSHC 1378, 1381, 1980 CCH OSHD ? 24,478, p.29,890 (No. 15462, 1980). The expectation that such a liberalconstruction would advance employee safety and health is unrealistic. As the Fifth Circuit has pointed out, \”[t]o strain the plain and naturalmeaning of words for the purpose of alleviating a perceived safetyhazard is to delay the day when the occupational safety and healthregulations will be written in clear and concise language so thatemployers will be better able to understand and observe them.\” _DiamondRoofing_ _Co. v. OSHRC_, 528 F.2d 645, 650 (5th Cir. 1976). Employersreasonably expect that the words of a standard are a reliable guide totheir duties. A construction of a standard that bears no reasonablerelationship to the standard’s plain words cannot be expected to guideemployers in their conduct. We therefore overrule _Tri-City_.[[5]]Accordingly, the judges decision is affirmed. The citation itemalleging non-compliance with section 1926.550(a)(9) is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAY 31 1984CLEARY, Commissioner, concurring in part and dissenting in part:This majority decision rejects long-standing precedent and eliminatesthe sole means of protection for workers from the rotatingsuperstructure of machines used as cranes. Ironically, the majorityneed not have gone this far. At the time of the violation, Commissioncase law had held that machines such as the one involved here were notsubject to the crane standard. The administrative law judge thereforeheld that Lisbon lacked fair notice of the standard’s applicability. Iagree. Due process of law requires that an employer must have fairnotice of what is required by a standard. _See_ _Diebold, Inc. v.Marshall_, 585 F.2d 1327, 1335-37 (6th Cir. 1978). Yet, the majoritysidesteps this aspect of the case in order to write new law. Itherefore must dissent.This case presents the issue of what standard to apply where an employeruses a multi-purpose piece of equipment to perform functions usuallyperformed by more specialized machinery. Here, a Caterpillar 235backhoe being used in a trenching operation was also used to lift atrench box and lower it into a trench. In the course of this operationthe machine’s superstructure rotated and could have struck or crushednearby employees. The compliance officer testified without rebuttalthat an employee walked only three to six feet away from the rotatingsuperstructure. It is clear from the record that this machine had thesame sort of rotating superstructure that any crane has and was beingused as a crane. It posed the same grave danger to employees that anycrane’s rotating superstructure poses and presented the precise dangerthat the barricading provision of the crane standard was intended toeliminate.The majority arrives at its contrary interpretation of section1926.550(a)(9) by way of an analysis not of the OSHA standard but of anANSI standard that is cross-referenced in other provisions of section1926.550. In finding that this machine is not a \”crane\” under section1926.550(a)(9) the majority relies heavily an the scope section in ANSIB30.5-1968, which excludes \”backhoes\” from the ANSI standard’scoverage. Yet, that particular provision of the ANSI standard isnowhere cross-referenced in section 1926.550. The majority alsoattempts to derive support for its position from the definition of\”crane\” in 29 C.F.R. Part 1910 and ANSI B30.5-1968. Here again there isno evidence that the Secretary intended the definition to control thescope and application of section 1926.550. The three subsections ofsection 1926.550 that cross-reference ANSI B30.5-1968 do not purport todefine and indeed say nothing about the scope of section1926.550(a)(9). Those subsections refer to the ANSI standard forentirely different purposes. That much is clear from footnote 2 of themajority opinion. In any event, the majority’s reasoning is notsufficiently persuasive to overrule Commission precedent.The majority finds \”plain meaning\” in bits and pieces of evidence thatprove, according to them, that the crane standard should be given asemantically literal reading. This kind of reasoning repudiates notonly the specific remedial purpose of this Act, but also the generalprinciple of liberal construction of remedial legislation. As theSupreme Court once observed, just as courts should not go too far inexpansive readings of remedial legislation, there is \”an obviouscorollary to that principle, that we must take care not to narrow thecoverage of a statute short of the point where Congress indicated itshould extend.\” _United States v. An Article of Drug_, 394 U.S. 784,801 (1969) (rejecting a \”strict medical definition\” of the term \”drug\”and \”device\” where a broader interpretation would produce greaterbenefit to the public under the Federal Food, Drug, and Cosmetic Act).The plain fact remains that the rotating superstructure of this machinewas configured like that of a crane, performed the work of a crane, andposed the identical hazard to nearby workers. The unfortunateconsequence of the majority opinion is that employers are permitted toavoid the burden of complying with the crane barricading requirementwhenever they use a backhoe as a crane. This result was squarelyrejected in _Gil Haugan_, where the Commission stated: \”We cannotsubscribe to an interpretation of the standards that would place lessstringent requirements upon equipment that is potentially as hazardousas the equipment clearly governed by the standard, when both pieces ofequipment perform the same function.\” 7 BNA OSHC at 2007, 1979 CCH OSHD? 24,105, p. 29,291. That decision struck the proper balance of workerprotection and should control.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 1926.550(a)(9) provides:? 1926.550 _Cranes and derricks_.(a) _General _requirements . . . .* * *(9) Accessible areas within the swing radius of the rear of the rotatingsuperstructure of the crane, either permanently or temporarily mounted,shall be barricaded in such a manner as to prevent an employee frombeing struck or crushed by the crane.[[2]] See ?? 1926.550(a)(4)(\”Hand signals to crane and derrick operatorsshall be those prescribed by the applicable ANSI standard . . . . \”);1926.550(a)(7) (vi) (\”Wire rope safety factors shall be in accordancewith [ANSI B30.5-1968]\”); 1926.550(a)(13)(ii) (\”Guardrails, handholds,and steps shall be provided on cranes . . . conforming to [ANSIB30.5-1968]\”); and 1926.550(b)(2) (\”All crawler, truck, or locomotivecranes in use shall meet the applicable requirements for . . . operationas prescribed in the ANSI B30.5-1968 . . . . \”).[[3]] Reliance upon the definitions in the ANSI standards is alsoappropriate because the crawler crane definition in the ANSI standard isidentical to the OSHA definition in the general industry standard, 29C.F.R. ? 1910.180(a)(1). Although the OSHA definition applies only tosection 1910.180, no party has argued that the definitions in Part 1910address equipment different from that regulated under section 1926.550. Indeed, ? 1910.180 was derived from the ANSI standard referenced in ?1926.550(b)(2). See ? 1910.189 (listing sources of standards).Moreover, one of the standards in Subpart O (?? 1926.600-606), whichapplies to \”Motor Vehicles, Mechanized Equipment, and MarineOperations,\” shows that when the Secretary wishes to apply a cranestandard to a non-crane, he has done so expressly. Section1926.600(a)(6) states that \”[a]ll equipment covered by this subpartshall comply with the requirements of ? [1926].550(a)(15) when workingor being moved in the vicinity of power lines or energizedtransmitters.\” That the Secretary drafted such a special provisionstrongly suggests that we should not create one by construction.[[4]] ANSI B30.6-1969, Safety Code for Derricks; ANSI B30.5-1968, SafetyCode for Crawler, Locomotive and Truck Cranes; ANSI B30.2.0-1967, SafetyCode for Overhead and Gantry Cranes.[[5]] We do not at this time overrule _Gil Haugan_. Although _Tri-City_involved equipment identical to that in use here, _Gil Haugan_ involveda very different machine. In _Gil Haugan_, workers were using ashop-modified farm tractor to lift bar joists. Considering itsdissimilarity to the machine here, we have no occasion to decide whetherthe equipment used in _Gil Haugan_ was a crane under section 1926.550. “