“Docket No. 80-0097 SECRETARY OF LABOR,Complainant,v.LISBON CONTRACTORS, INC.,Respondent.OSHRC Docket No. 80-0097DECISION Before:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).A citation item alleging a failure to barricade the rotating superstructureof a backhoe in accordance with 29 C.F.R. ? 1926.550(a)(9) was issued to LisbonContractors.\u00a0 The standard requires that \”accessible areas within the swingradius of the rear of the rotating superstructure of a crane . . . shall be barricaded . .. .\”[[1]]\u00a0 Administrative Law Judge William E. Brennan vacated the item on theground that the employer did not have fair notice that the standard applied.\u00a0 Weaffirm the judge’s disposition, but for different reasons.The facts are not in dispute.\u00a0 Lisbon was using a Caterpillar 235crawler-type backhoe to dig a trench for a sewer line in Pleasant Gap, Pennsylvania.\u00a0 The backhoe’s rotating superstructure was not guarded or barricaded.\u00a0 Thecompliance officer who conducted the inspection testified that he observed the backhoelifting a steel trench box and lowering it into the open trench.The Secretary argued before Judge Brennan that the Commission decisions inGil 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., 80 OSAHRC 9\/F12, 7 BNA OSHC 2189,1980 CCH OSHD ? 24,267 (No. 76-4094, 1980), required Lisbon to barricade the rotatingsuperstructure of its backhoe in accordance with section 1926.550(a)(9).\u00a0 TheSecretary argued that under these cases, the crane barricading standard applies if themachine in question is used to perform lifting functions usually performed by cranes orderricks.\u00a0 Under this theory, the function of lifting and moving the trench boxtransformed the backhoe into a \”crane\” for purposes of the standard.Lisbon argued that section 1926.550(a)(9) did not apply because its backhoeis not a crane.\u00a0 Lisbon also argued that even if the standard did apply, it did nothave fair notice of this interpretation of the standard at the time of the violation.\u00a0 At the time of the alleged violation, Commission decisions had held that the cranebarricading standard did not apply to backhoes.\u00a0 See Felton ConstructionCo., 76 OSAHRC 136\/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD ? 21,258 (No. 6759, 1976); seealso Warner Brothers, Inc., 76 OSAHRC 138\/D7, 4 BNA OSHC 1841,1976-77 CCH OSHD ? 21,257 (No. 8841, 1976).\u00a0 It was only after the issuance of thecitation that Felton was overruled in Gil Haugan.\u00a0 Tri-City was issuedsix weeks later.The judge agreed that Lisbon lacked fair notice that the standard applied andvacated the citation item.\u00a0 He stated that \”there is no conceivable way this[employer] could have anticipated the Commission’s change in its precedent or have been onnotice of the applicability of the cited standard to its backhoe.\”\u00a0 TheSecretary’s petition for discretionary review was granted.\u00a0 On review, the Secretaryno longer disputes Lisbon’s claim that it lacked fair notice of the standard’sapplicability.\u00a0 Instead, he argues that the citation should be affirmed so thatLisbon is required in the future to comply with the standard as it was interpreted in GilHaugan and Tri-City.\u00a0 Lisbon vigorously argues, however, that the standarddoes not apply, that Commission precedent has created numerous practical difficultiesunforeseen and unintended by the drafters of the crane standard, and that the Commissionshould re- examine its precedent in light of material not previously considered.\u00a0 Wetherefore conclude that disposition of this case on fair notice grounds would not addressthe central concern of both parties–the applicability of the standard.The primary question is whether this backhoe is a \”crane\” within the meaning ofsection 1926.550.\u00a0 We turn first to the language of section 1926.550.\u00a0 Thatsection lacks a scope and application provision stating the machines or operations itgoverns.\u00a0 It is, however, entitled \”Cranes and Derricks.\”\u00a0 Thespecific provision before us, section 1926.550(a)(9), mentions only \”cranes.\”\u00a0 Despite the importance of the term, it is not defined anywhere in section 1926.550,and Commission decisions attempting to give it a meaning have been inconsistent anddivided.\u00a0 Felton held that a machine with a backhoe attachment used to move atrench box and lower pipe sections was not a \”crane.\”\u00a0 Felton wasreaffirmed by Warner Brothers, which involved what was said to be a\”hybrid\” machine.\u00a0 Gil Haugan later overruled Felton, and wasshortly followed by Tri-City.\u00a0 The latter two cases concerned a modified farmtractor and a backhoe respectively.\u00a0 Relying on the maxim that regulations adoptedunder remedial legislation must be liberally construed, Gil Haugan and Tri-Cityheld that section 1926.550 applies to machines used to perform lifting functions usuallyperformed by cranes or derricks, regardless of whether the machines were originallydesigned for that function.\u00a0 None of the majority opinions in these cases, however,examined the question of what a \”crane\” is with the aid of the ANSI standardthat section 1926.550 incorporates by reference.\u00a0 Yet, as Lisbon argues, that ANSIstandard sheds much light on the proper construction of section 1926.550.Section 1926.550 incorporates by reference at several points ANSI B30.5-1968,Safety Code for Crawler, Locomotive and Truck Cranes.[[2]]\u00a0 ANSI B30.5-1968 defines acrawler crane as \”[a] crane consisting of a rotating superstructure with power plant,operating machinery, and boom, mounted on a base, equipped with crawler treads fortravel.\”\u00a0 ANSI B30.5-1968, section 5-0.2.1.1.\u00a0 Elsewhere in the ANSIstandard, a \”boom\” is defined as a \”member hinged to the front of therotating superstructure with the outer end supported by ropes leading to a gantry or ‘A’frame and used for supporting the hoisting tackle.\”\u00a0 Section 5-0.2.2.12. \u00a0Nothing we have seen indicates that this backhoe has a \”boom\” within the meaningof the ANSI standard, i.e., a member outfitted with ropes, a gantry or\”A-frame,\” or hoisting tackle.[[3]]Furthermore, the ANSI standard expressly excludes backhoes.\u00a0 The scopesection of the ANSI standard provides:\u00a0 \”Within the general scope defined inSection I, Volume B30.5 applies to crawler cranes . . . and any variations thereof whichretain the same fundamental characteristics.\”\u00a0 Section I provides that\”[t]his Code does not apply to . . . shovels, dragline excavators, or backhoes.\”(Emphasis added.)\u00a0 We therefore conclude that this backhoe is not a \”crane\”as that 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.\u00a0 There aCaterpillar 235 backhoe was used to lift and lower pipe sections into a trench.\u00a0 TheCommission held that section 1926.550(a)(9) \”applies to machines used to performlifting functions usually performed by cranes or derricks, whether the machines wereoriginally designed for that purpose or not . . . .\” 7 BNA OSHC at 2191, 1980 CCHOSHD at pp. 29,548-29,549, quoting Gil Haugan, 7 BNA OSHC at 2007, 1979 CCHOSHD at p. 29,291.\u00a0 The rationale of Tri-City was that differences in thespecific types of machines are irrelevant.\u00a0 The regulatory scheme of the standards,however, does not support this conclusion. Section 1926.550 is divided into paragraphsentitled \”Crawler, locomotive, and truck cranes,\” \”Hammerhead towercranes,\” \”Overhead and gantry cranes,\” \”Derricks, and \”Floatingcranes and derricks.\”\u00a0 See 29 C.F.R. ? 1926.550(b)-(f).\u00a0 Their detailedrequirements, and those of the three ANSI standards that they incorporate byreference,[[4]] were tailored instead to the particular configurations and mechanisms ofcranes and derricks rather than to the machines’ functions.\u00a0 While we do not rule outthe possibility that the Secretary could draft standards governing machines based on theirfunction, he has not done so here.Gil Haugan and Tri-City invoked the oft-repeated maxim thatregulation adopted under remedial legislation must be liberally construed.\u00a0 Thosedecisions accorded no importance at all to the words of the standard or whether thosewords reflect a deliberate choice by its drafters.\u00a0 We cannot agree with thisapproach.\u00a0 The remedial purpose of the Act does not give the Commission license toignore the standard’s plain meaning.\u00a0 See Symons v. Chysler Corp. LoanGuarantee 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 foranalysis of the problem at hand.\”\u00a0 Marshall v. Anaconda Co., 596 F.2d370, 377 n.6 (9th Cir. 1979).\u00a0 Yet, Gil Haugan and Tri-City did notanalyze whether these machines are \”cranes\” under any definition or sense of theword.\u00a0 Those decisions did not discuss whether the OSHA drafter might have chosen toregulate these machines based on their configuration and operating characteristics ratherthan their function.\u00a0 Instead, they relied solely on the maxim of liberalconstruction and reasoned that a backhoe is a \”crane\” whenever it lifts objectsand presents the hazard addressed by one of the subsections of ? 1926.550.\u00a0 TheSecretary’s standards, which set policy, strike a balance between the protection ofemployees and the imposition of burdens on employers.\u00a0 To ignore the words of thestandard and the underlying policy choices that they reflect, is to upset that balance andsubstitute a new one.\u00a0 That is not the function of an adjudicatory body.\u00a0 See,e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469 (1981); UnitedStates 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.\u00a0 The safety and health ofemployees cannot be served if employers that are subject to the Act’s penalty provisionsare not afforded fair notice of their obligations under the Act.\u00a0 See PennsucoCement & Aggregates, Inc., 80 OSAHRC 47\/A2, 8 BNA OSHC 1378, 1381, 1980 CCH OSHD? 24,478, p. 29,890 (No. 15462, 1980).\u00a0 The expectation that such a liberalconstruction would advance employee safety and health is unrealistic.\u00a0 As the FifthCircuit has pointed out, \”[t]o strain the plain and natural meaning of words for thepurpose of alleviating a perceived safety hazard is to delay the day when the occupationalsafety and health regulations will be written in clear and concise language so thatemployers will be better able to understand and observe them.\”\u00a0 DiamondRoofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976).\u00a0 Employersreasonably expect that the words of a standard are a reliable guide to their duties.\u00a0 A construction of a standard that bears no reasonable relationship to thestandard’s plain words cannot be expected to guide employers in their conduct.\u00a0 Wetherefore overrule Tri-City.[[5]]Accordingly, the judges decision is affirmed.\u00a0 The citation itemalleging non-compliance with section 1926.550(a)(9) is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 MAY 31 1984CLEARY, Commissioner, concurring in part and dissenting in part:This majority decision rejects long-standing precedent and eliminates thesole means of protection for workers from the rotating superstructure of machines used ascranes.\u00a0 Ironically, the majority need not have gone this far.\u00a0 At the time ofthe violation, Commission case law had held that machines such as the one involved herewere not subject to the crane standard.\u00a0 The administrative law judge therefore heldthat Lisbon lacked fair notice of the standard’s applicability.\u00a0 I agree.\u00a0 Dueprocess of law requires that an employer must have fair notice of what is required by astandard.\u00a0 See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-37 (6thCir. 1978).\u00a0 Yet, the majority sidesteps this aspect of the case in order to writenew law.\u00a0 I therefore must dissent.This case presents the issue of what standard to apply where an employer usesa multi-purpose piece of equipment to perform functions usually performed by morespecialized machinery.\u00a0 Here, a Caterpillar 235 backhoe being used in a trenchingoperation was also used to lift a trench box and lower it into a trench.\u00a0 In thecourse of this operation the machine’s superstructure rotated and could have struck orcrushed nearby employees.\u00a0 The compliance officer testified without rebuttal that anemployee walked only three to six feet away from the rotating superstructure.\u00a0 It isclear from the record that this machine had the same sort of rotating superstructure thatany crane has and was being used as a crane.\u00a0 It posed the same grave danger toemployees that any crane’s rotating superstructure poses and presented the precise dangerthat the barricading provision of the crane standard was intended to eliminate.The majority arrives at its contrary interpretation of section 1926.550(a)(9)by way of an analysis not of the OSHA standard but of an ANSI standard that iscross-referenced in other provisions of section 1926.550.\u00a0 In finding that thismachine is not a \”crane\” under section 1926.550(a)(9) the majority reliesheavily an the scope section in ANSI B30.5-1968, which excludes \”backhoes\” fromthe ANSI standard’s coverage.\u00a0 Yet, that particular provision of the ANSI standard isnowhere cross-referenced in section 1926.550.\u00a0 The majority also attempts to derivesupport for its position from the definition of \”crane\” in 29 C.F.R. Part 1910and ANSI B30.5-1968.\u00a0 Here again there is no evidence that the Secretary intended thedefinition to control the scope and application of section 1926.550.\u00a0 The threesubsections of section 1926.550 that cross-reference ANSI B30.5-1968 do not purport todefine and indeed say nothing about the scope of section 1926.550(a)(9).\u00a0 Thosesubsections refer to the ANSI standard for entirely different purposes.\u00a0 That much isclear from footnote 2 of the majority opinion.\u00a0 In any event, the majority’sreasoning is not sufficiently persuasive to overrule Commission precedent.The majority finds \”plain meaning\” in bits and pieces of evidencethat prove, according to them, that the crane standard should be given a semanticallyliteral reading.\u00a0 This kind of reasoning repudiates not only the specific remedialpurpose of this Act, but also the general principle of liberal construction of remediallegislation.\u00a0 As the Supreme Court once observed, just as courts should not go toofar in expansive readings of remedial legislation, there is \”an obvious corollary tothat principle, that we must take care not to narrow the coverage of a statute short ofthe point where Congress indicated it should extend.\”\u00a0 United States v. AnArticle of Drug, 394 U.S. 784, 801 (1969) (rejecting a \”strict medicaldefinition\” of the term \”drug\” and \”device\” where a broaderinterpretation would produce greater benefit to the public under the Federal Food, Drug,and Cosmetic Act).The plain fact remains that the rotating superstructure of this machine wasconfigured like that of a crane, performed the work of a crane, and posed the identicalhazard to nearby workers.\u00a0 The unfortunate consequence of the majority opinion isthat employers are permitted to avoid the burden of complying with the crane barricadingrequirement whenever they use a backhoe as a crane. This result was squarely rejected in GilHaugan, where the Commission stated:\u00a0 \”We cannot subscribe to aninterpretation of the standards that would place less stringent requirements uponequipment that is potentially as hazardous as the equipment clearly governed by thestandard, when both pieces of equipment perform the same function.\”\u00a0 7 BNA OSHCat 2007, 1979 CCH OSHD ? 24,105, p. 29,291.\u00a0 That decision struck the proper balanceof worker protection and should control.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 rotating superstructure ofthe crane, either permanently or temporarily mounted, shall be barricaded in such a manneras to prevent an employee from being struck or crushed by the crane.[[2]] See ?? 1926.550(a)(4)(\”Hand signals to crane and derrickoperators shall be those prescribed by the applicable ANSI standard . . . . \”);1926.550(a)(7) (vi) (\”Wire rope safety factors shall be in accordance with [ANSIB30.5-1968]\”); 1926.550(a)(13)(ii) (\”Guardrails, handholds, and steps shall beprovided on cranes . . . conforming to [ANSI B30.5-1968]\”); and 1926.550(b)(2)(\”All crawler, truck, or locomotive cranes in use shall meet the applicablerequirements for . . . operation as prescribed in the ANSI B30.5-1968 . . . . \”).[[3]] Reliance upon the definitions in the ANSI standards is also appropriatebecause the crawler crane definition in the ANSI standard is identical to the OSHAdefinition in the general industry standard, 29 C.F.R. ? 1910.180(a)(1).\u00a0 Althoughthe OSHA definition applies only to section 1910.180, no party has argued that thedefinitions in Part 1910 address equipment different from that regulated under section1926.550.\u00a0 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 Marine Operations,\” showsthat when the Secretary wishes to apply a crane standard to a non-crane, he has done soexpressly. Section 1926.600(a)(6) states that \”[a]ll equipment covered by thissubpart shall comply with the requirements of ? [1926].550(a)(15) when working or beingmoved in the vicinity of power lines or energized transmitters.\”\u00a0 That theSecretary drafted such a special provision strongly suggests that we should not create oneby construction.[[4]] ANSI B30.6-1969, Safety Code for Derricks; ANSI B30.5-1968, Safety Codefor Crawler, Locomotive and Truck Cranes; ANSI B30.2.0-1967, Safety Code for Overhead andGantry Cranes.[[5]] We do not at this time overrule Gil Haugan.\u00a0 Although Tri-Cityinvolved equipment identical to that in use here, Gil Haugan involved a verydifferent machine.\u00a0 In Gil Haugan, workers were using a shop-modified farmtractor to lift bar joists. Considering its dissimilarity to the machine here, we have nooccasion to decide whether the equipment used in Gil Haugan was a crane undersection 1926.550.\u00a0″