Docket No. 2864

ALLIED STRUCTURAL STEEL COMPANY

OSHRC Docket No. 2864

Occupational Safety and Health Review Commission

July 29, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Paul E. Dixon, dated February 27, 1974, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the case at this time.

The Commission is equally divided on whether the Judge correctly vacated the citation for noncompliance with 29 C.F.R. § 1926.550(a)(9).

Chairman Moran would affirm the vacation of the citation for the reasons set forth in the Judge's opinion.

Commissioner Cleary would reverse the Judge and affirm the citation because he finds that the standard requires the respondent to provide a physical barrier to prevent access to "the swing radius of the rear of the rotating superstructure of the crane." He agrees with the Secretary of Labor that a "flagman" should not be considered a barricade within the plain meaning of the cited standard. Moreover, even if the standard permitted a mortal barrier, the employee appointed to do the job was merely leaning [*2] against the truck part of the crane, and could not see the right rear corner of the rotating superstructure. Commissioner Cleary also concludes that the Judge erred in applying Industrial Steel Erectors, Inc., No. 703 (January 10, 1974) because it was not proved that an employees would provide greater protection than a physical barrier.

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

[The Judge's decision referred to herein follows]

DIXON, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ), hereinafter referred to as the Act, contesting a Citation issued by the Complainant against Respondent under the authority vested in Complainant by Section 9(a) of the Act.

The Citation and proposed combined penalties of $140.00 were issued April 13, 1973, by Complainant, as a result of an inspection conducted on March 27, 1973, of a worksite under Respondent's ownership, operation or control at a jobsite at 9216 Grand Avenue South, Minneapolis, Minnesota, where Respondent [*3] was primarily engaged in steel erection.

CITATION
			Date on which
	Standard or		alleged viola-
Item	regulation al-	Description of alleged	tion must
number	legedly violated	violation	be corrected
1	29 CFR	(Unit #1 at approximately 1,025
	1926.500(d)(2),	elevation.) A 2" X 10" single
	page 27543,	board was used as a runway to con-
	Column 3.	nect the existing unit #1 with the
		new structural steel. The runway
		was 11'6" above the nearest	Immedi-
		solid level and there was no	ately Upon
		guardrail on the runway.	Receipt Of
			This Cita-
			tion.

2	29 CFR	(Job Site.) There was no barricade
	1926.550(a)(9),	to protect the accessible areas
	page 27545,	within the swing radius of the rear	Immedi-
	Column 2.	of the rotating superstructure of	ately Upon
		a LIMA truck crane to prevent	Receipt Of
		employees being struck	This Cita-
		crushed by the crane.	tion.

The alleged violations in this citation were cited from the Federal Register, dated December 16, 1972, Volume 37, Number 243, Regulations for Construction.

Citation No.	Item No.	Proposed Penalty
1	1	$70.00
1	2	70.00

Respondent by letter of April 24, [*4] 1973, contested Citation No. 1, Item No. 2, 29 CFR 1926.550(a)(9), and the proposed penalty of $70.00.

Complainant filed its Complaint May 8, 1973, proceeding to allege violation of Citation No. 1, Item No. 2, 29 CFR 1926.550(a)(9).

Respondent by its Answer of June 27, 1973, responded to the Complaint and denied the alleged violation of Citation No. 1, Item No. 2, and the case was at issue.

Hearing was originally scheduled on August 16, 1973, and continued to September 14, 1973, on the basis that a Stipulation of Fact was being prepared by the parties to obviate the necessity of a hearing.

Thereafter, under the date of September 14, 1973, a joint Stipulation of Fact was entered by and between the Complainant and the Respondent, and this Decision is made upon the record presented by the parties.

STIPULATION OF FACT

It was stipulated by and between the parties that the following facts gave rise to the Citation and Notification of Proposed Penalties in the above-entitled case:

1. Respondent was using a truck-mounted LIMA crane in its work at its Lake Manawa Power Station, Council Bluffs, Iowa, worksite.

2. The LIMA crane is the same one depicted in the photographs taken by [*5] Mr. Uldis Sid Levalds, Compliance Safety and Health Officer, U.S. Department of Labor, while he was inspecting the Lake Manawa worksite on March 27, 1973. These photographs, marked Exhibit Nos. 1 and 2, are incorporated into the Stipulation.

3. Exhibit No. 1 depicts the LIMA crane in the configuration observed by Mr. Levalds. No physical barricade was erected to the rear of the rotating superstructure of the crane, as shown in the photograph. The outriggers were fully extended, as shown in both Exhibit Nos. 1 and 2. The oiler had been instructed to act as flagman for the area around the crane.

4. At the time of Mr. Levalds' inspection, the crane had a load on its boom, the crane was "shaking out" steel beams, the superstructure was in motion, and only one man was near the crane, other than the crane operator and truck driver. This one man near the crane (believed to be the oiler) was leaning on the truck part of the crane just to the rear of the truck cab, as can be seen in Exhibit No. 2. The superstructure was situated so that the boom was over the man's head, and he could not see the right rear corner of the rotating superstructure.

5. Ironworker employees of [*6] the Respondent were in the area: some were in the "pick" area shown in Exhibit No. 2, the area where steel beams are being picked up by the crane; others were in the drop area on or near the building being erected.

6. The proposed penalty for this violation was $70.00. This figure was proposed by Mr. Levalds after considering the gravity of the violation. Mr. Levalds judged the gravity of the violation to be low-moderate, i.e., even though there was unguarded heavy machinery, very few people would actually have occasion to be within the swing radius of this crane's superstructure. Mr. Levalds judged the severity of an injury, should one occur. to be high, i.e., death or serious physical injury would result, since a person would be crushed between the crane and its counterbalance located on the superstructure. Using Department of Labor guidelines, this evaluation of gravity resulted in a proposed penalty of $201.00, unadjusted.

a. The unadjudged figure was further reduced by 10 percent for good faith and 20 percent for history. No reduction was made for the size of Respondent's business since the Respondent employed over 100 employees. This resulted in an adjusted proposed [*7] penalty of $140.00.

b. In addition, a 50 percent reduction was given on the assumption that abatement would take place as prescribed in the Citation. Both items of the Citation were abated immediately.

The Stipulation was executed by both parties, who agreed that the Stipulation constituted all of the facts pertaining to the alleged violation of 29 CFR 1926.550(a)(9).

Respondent, by way of submission in lieu of brief following the foregoing Stipulation by communication of October 15, 1973, expressed the argument that with the outriggers fully extended and with the oiler having been instructed to act as flagman Respondent felt that the crane was effectively barricaded. They noted that they were not taking the position that barricades should not be used on cranes, only that this crane was barricaded.

Respondent noted that by definition under 29 CFR 1926.203(a) "barricade" means: "an obstruction to deter the passage of persons or vehicles." In this instance, with the outriggers fully extended, an individual has to walk well outside the swing radius of the crane in order to get by. The oiler, standing by as flagman, is additional insurance that no one will get close [*8] to the crane without warning. At the time of the inspection, there was evidently no employee near the crane except the oiler and he was near the truck cab, which is outside the swing radius.

THE STANDARD

1926.550 Cranes and Derricks.

(a) General requirements. (1) The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks. Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded. Attachments used with cranes shall not exceed the capacity, rating, or scope recommended by the manufacturer.

(9) Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

NOTE: Federal Register, Volume 37, No. 243, Part II, pertaining to safety and health regulations for construction:

1926.203 Definitions applicable to this Subpart. [*9]

(a) 'Barricade' means an obstruction to deter the passage of persons or vehicles.

DISCUSSION

The operative language of the Standard in question provides in pertinent part that "accessible areas within the swing radius of the rear of the rotating superstructure of the crane . . . shall be barricaded . . . as to prevent an employee from being struck or crushed by the crane."

Further, the word "barricade" is defined at 1926.203(a) as "an obstruction to deter the passage of persons or vehicles." The Standard does not prescribe as to whether or not the barricade should be animate or inanimate, although some suggestion is given by Section 1926.210 wherein provision is made for a flagman where barricades do not provide the necessary protection.

Looking further to the American College Dictionary as to the meaning of the word "obstruction," the word is defined: "1. something that obstructs; an obstacle or hindrance. 2. the act of obstructing, etc."

The root word "obstruct" is defined: "1. to block or close up, or make difficult of passage with obstacles. . . 2. to interrupt, make difficult, or oppose the passage, progress, course, etc."

The clear issue presented is whether [*10] or not by virtue of the Respondent instructing an oiler to act as flagman (Stipulation of Fact, paragraph 3) satisfies the requirement that the accessible areas within the swing radius of the superstructure of the crane were barricaded.

The Standard does not provide for a "physical" barricade as argued by the Complainant; nor can the argument that a fixed physical barricade of inanimate material is superior to that of an animate human being with the faculties of sight, hearing and other senses to determine the approach of an employee who could be exposed to the swing radius of the crane.

While Complainant cities the language of the Judge in the W. J. Lazynski in dangerous and close proximity to the rotating superstructure.

The case at bar is clearly distinguishable upon the facts, in that by the agreed Statement of Facts the oiler was specifically instructed to act as flagman, and Respondent's work operations were such that very few people would actually have occasion to be within the swing radius of the crane's superstructure with its outriggers extended.

In Secretary of Labor v. St. Louis County Water Company,

In Secretary of Labor v. Drake-Willamette Joint Ventures,

Further, the conclusion stated in Complainant's Brief that the oiler was not acting as a flagman at the time the rotating superstructure was in motion, based [*12] upon the fact he was observed leaning on the truck part of the crane, cannot be substantiated upon the record as a whole in light of the fact of the Statement of Fact that the oiler was instructed to act as flagman and any inference drawn from his position at the time and based upon his physical posture at the time of observation would have to be based upon surmise, speculation and conjecture.

In light of the entire record, it is felt that this case is compatible with the rationale established in Secretary of Labor v. Industrial Steel Erectors, Inc.,

FINDINGS OF FACT

1. Respondent Industrial Construction Division, Allied Structural Steel Company, is a corporation with an office and principal place of business located at 9216 Grand Avenue South, Minneapolis, Minnesota, where it is engaged in industrial steel erection.

2. Respondent is in a business [*13] affecting commerce.

3. Respondent employs approximately 105 employees in its activities at various worksites, and on March 27, 1973, was employing approximately 16 employees at a workside located at the Lake Manawa Power Station, Council Bluffs, Iowa.

4. As a result of an inspection by an authorized representative of the Secretary, Respondent was issued a Citation for Other-Than-Serious Violations and a Notification of Proposed Penalties on April 13, 1973, pursuant to Section 9(a) of the Act. Such Citation and Notification of Proposed Penalties were received by Respondent on April 16, 1973. On May 2, 1973, Respondent filed with a representative of the Secretary a Notice of Intent to Contest Item No. 2 of the Citation for Other-Than-Serious Violation and a Notification of Proposed Penalty therefor pursuant to Section 10(c) of the Act. This Notice was duly transmitted to the Occupational Safety and Health Review Commission. Jurisdiction of this proceeding is conferred upon the Commission by Section 10(c) of the Act.

5. Respondent was using a truck-mounted LIMA crane in its work at its Lake Manawa Power Station, Council Bluffs, Iowa, worksite.

6. The LIMA crane is the same [*14] one depicted in the photographs taken by Mr. Uldis Sid Levalds, Compliance Safety and Health Officer, U.S. Department of Labor, while he was inspecting the Lake Manawa worksite on March 27, 1973. These photographs, marked Exhibit Nos. 1 and 2, are incorporated into the record.

7. Exhibit No. 1 depicts the LIMA crane and the configuration observed by Levalds. No physical barricade was erected to the rear of the rotating superstructure of the crane, as shown in the photograph. The outriggers were fully extended, as shown in both Exhibit Nos. 1 and 2. The oiler had been instructed to act as a flagman for the area around the crane.

8. At the time of Mr. Levalds' inspection, the crane had a load on its boom and was "shaking out" steel beams; the superstructure was in motion, and only one man was never the crane, other than the crane operator and truck driver. This one man near the crane (believed to be the oiler) was leaning on the truck part of the crane just to the rear of the truck cab, as can be seen in Exhibit No. 2. The superstructure was situated so that the boom was over this man's head, and he could not see the right rear corner of the rotating superstructure. [*15]

9. Iron worker employees of Respondent were in the area; some were in the "pick" area, shown in Exhibit No. 2, the area where the steel beams were picked up by the crane; others were in the drop area on or near the building being erected.

10. The stipulated fact that the oiler could not see the right rear corner of the rotating superstructure does not establish as a fact that the oiler could not protect the accessible areas within the swing radius of the rear of the rotating superstructure.

11. The oiler, pursuant to the definition of "barricade," as contained in Section 1926.203(a), acted as an obstruction to deter the passage of persons to the rear of the crane.

CONCLUSIONS OF LAW

1. At all times mentioned herein, Respondent was and is an employer within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (29 USC et seq. ), and the Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter.

2. Respondent did not contest Citation No. 1, Item No. 1, 29 CFR 1926.500(d)(2) or the proposed penalty of $70.00, and the said Citation and proposed penalty are affirmed by operation of law.

3. Citation No. [*16] 1, Item No. 2, 29 CFR 1926.550(a)(9), and the proposed penalty in the amount of $70.00, are vacated for the reasons heretofore stated.

It is so ORDERED.