SECRETARY OF LABOR,
Complainant,

v.

AUSTIN BRIDGE COMPANY
Respondent.

OSHRC DOCKET NO. 85-1061

ORDER

The Commission approves the parties' Stipulation and Settlement Agreement. The Commission approves the settlement regarding subitem 1b and thus vacates the item. The Commission also affirms the Administrative Law Judge's decision vacating subitem 1a.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

Dated: December 19, 1986

SECRETARY OF LABOR,
Complainant,

v.

AUSTIN BRIDGE COMPANY,
Respondent.

OSHRC DOCKET NO. 85-1061


STIPULATION AND SETTLEMENT AGREEMENT

I.

The parties stipulate as follows:

(a) As a result of an accident at respondent's jobsite on July 11, 1985, the Occupational Safety and Health Administration (OSHA) investigated respondent's workplace and issued to respondent a citation which alleged violations of 29 CFR 1926.550(a)(1) and 29 CFR 1926.21(b)(2).

(b) On September 10, 1985, Austin filed its notice of contest.

(c) On March 28, 1986, OSHRC Judge Dee C. Blythe issued a decision in which he found that respondent did not violate 29 CFR 1926.550(a)(1) and 29 CFR 1926.21(b)(2).

(d) On May 27, 1986, the Secretary petitioned for review that portion of Judge Blythe's decision on the issue of whether respondent violated 29 CFR 1926.550(a)(1). The Review Commission directed review on May 28, 1986 and thereafter, on September 30, 1986, it issued a briefing order. No petition for review was filed by the Secretary concerning Judge Blythe's decision vacating 29 CFR 1926.21(b)(2) and it became, therefore, final as a matter of law.

III.

The Secretary of Labor and Austin Bridge Co., in order to conclude this matter without the necessity of further litigation or review, agree that the Secretary, by the filing of this document with the Review Commission, withdraws his petition for review and the citation alleging a violation of 29 CFR 1926.550(a)(1) and that the case is hereby closed.

IV.

The Secretary and respondent agree that each party shall bear its own costs.

V.

Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rule 7.

EUGENE A. LOPEZ
Attorney for the Secretary

STEVEN R. MCCOWN
Jenkens & Gilchrist
Attorney for Respondent

Dated this 21 day of November 1986.

SECRETARY OF LABOR,
Complainant,

v.

AUSTIN BRIDGE CO.,
Respondent.

OSHRC DOCKET NO. 85-1061

DECISION AND ORDER

Appearances:
Robert A. Fitz, Esq., of Dallas, Texas, for the complainant.

Steven R. McCown, Esq., of Dallas, Texas, for the respondent.

PROCEDURAL HISTORY

BLYTHE, Judge:

Ruperto Solis suffered traumatic asphyxiation July 11, 1985, when a crane boom he was dismantling fell on him. A compliance officer ("CO") of the Occupational Safety and Health Administration ("OSHA") investigated the fatality July 11 - August 22, 1985, and on August 27, 1985, OSHA issued one citation to Solis' employer, Austin Bridge Co. ("Austin") alleging serious violations of §5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"), and safety standards codified at 29 C.F.R. 1926 §§ 21(b)(2) and 550(a)(1), for which an aggregate penalty of $630 was proposed. Austin timely filed notice of contest on September 10, 1985, thus invoking the jurisdiction of the Occupational Safety and Health Review Commission ("the Commission") under §10(c) of the Act. Subsequently the complainant Secretary of Labor ("the Secretary") filed a formal complaint, and Austin filed an answer thereto. The matter came on regularly for hearing January 27, 1986, in Dallas, Texas. Both parties have filed posthearing briefs.

FACTUAL BACKGROUND

Austin, a large employer with approximately 500 employees, was erecting a highway overpass when the accident occurred which resulted in this proceeding. It operates 35 or 40 cranes. Preparatory to moving the mobile crane here involved to a new location, it was necessary to remove 20 feet (two 10-foot sections) of the 80-foot boom. A three-man crew was detailed to this task. Although the crew members' primary duties were not concerned with cranes, all had had prior experience in disassembling crane booms.

The boom is sectionalized, each pair of sections being held together by 4 steel pins driven through holes. To detach the last 2 sections simultanoeusly, 4 pins (2 on the top and 2 on the bottom) had to be removed. First, however, the pendant lines running from the top of the cab to the peak of the boom had to be moved back of the sections to be removed; through an oversight to be explained later, this was not done. Thus when the 2 bottom pins were knocked out, the 2 upper pins acted like a hinge, allowing the boom to fall on Solis.

There are also questions as to whether the boom should have been in a raised position and whether Solis should have been under the boom when he knocked out the lower pins.

Austin blames the accident entirely on the failure to move the pendant lines back and seeks to excuse this failure on a distraction caused by a freakish circumstance in which an intruder allegedly stole a paycheck from Austin's office, was apprehended on the jobsite, and was being questioned by the police.

THE ALLEGED VIOLATIONS

The two alleged violations will be discussed together because both involve the manufacturer's instructions for disassembling the crane boom.

Subitem 1a alleges that Austin failed properly to instruct employees "in accordance with the operations manual," in violation of §1926.21(b)(2), and subitem 1b alleges that Austin "failed to ensure that its employees. . . read and adhered to specific safety warnings. . .in the Operator's Manual" in violation of §1926.550(a)(1). The cited standards provide:

1926.21-Safety Training and Education

* * *
(b) Employer responsibility
* * *
(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

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.

The Operator's Manual (Exhibit C-3) gives detailed instructions for disassembling pin-connected booms, including:

(1) Lowering the boom until the peak rests on the ground.

(2) Moving the main pendants from the peak back to the joint to be disassembled, then exerting tension on the pendant lines without lifting the peak from the ground.

(3) Removing the bottom pins at the joint to be disconnected.

(4) Lowering the boom until the section(s) to be removed lie flat on the ground, then removing the upper pins.

There is also a warning: "Never Stand Under a Boom When Removing Pins."

The procedure taught to Austin's employees, in on-the-job training, is somewhat different, but Austin contends that it is safe. After the pendant lines have been moved back to the point to be disconnected, the boom is lifted so an employee can get under boom and knock out the bottom pins; then the boom is lowered to the ground and the top pins are removed.

Austin introduced convincing and uncontradicted testimony that its method was safe; that removal of the bottom pins would not allow the boom to fall if the pendant lines had been moved back to the point of disassembly; that it is therefore safe for an employee to go under the boom to knock out the bottom pins; and that it would be difficult to get at the bottom pins any other way due to the interfering latticework of the boom.

The disassembly method prescribed by the Operator's Manual does have the additional safeguard of having the peak rest on the ground while the bottom pins are removed, and this would also lessen the friction on the pins and make them easier to remove. Whether the manual's method is any safer depends on whether the pendant lines have been moved back to the point of disassembly.

Here, of course, the pendant lines had not been moved back. Both parties lose sight, however, of the fact that the cause of this particular accident is not the issue in determining whether Austin failed properly to instruct its employees "in the recognition and avoidance of unsafe conditions" as required by §1926.21(b)(2). Nor does this standard require that the instructions be in terms of the manual supplied by the manufacturer. It is sufficient if the employer properly instructs its employees to recognize and avoid the hazards to which they may be exposed.

The boom disassembly crew in this case was composed of Johnny Vasques, a leadman with 13 years' experience in the construction business who had dismantled 15 or 20 booms and had been trained by his brother, Luis Vasques, job superintendent; Wilson Wallace, a cement finisher who had also been instructed by Luis Vasques and had previously assisted in dismantling booms; and Solis, who had previously helped Johnny Vesques dismantle booms. On this record, I cannot say that they were not adequately instructed.

Austin has pleaded the affirmative defense of unpreventable employee misconduct. I do not believe this has any bearing on the central issue of whether the employees were properly instructed. However, if this is incorrect, I find in the alternative that this defense has been proved with regard to subitem 1a.

With regard to subitem 1b, Austin has raised the interesting issue of whether §1926.550(a)(1) is unconstitutional in that it delegates rule-making authority to manufacturers, citing Chairman Moran's dissenting opinion in Martin Iron Works, Inc., 75 OSAHRC 28/C7, 2 BNA OSHC 1531, 1974-75 CCH OSHD
¶19,219 (No. 1690, 1975). This issue was not directed for review in Martin, however, and the majority declined to address it. My research has disclosed no Commission decision on this point. However, I do not find it necessary to decide this issue, for in my opinion §1926.550(a)(1) by its own terms does not apply to this case. This becomes apparent when key words in the standard are emphasized:

(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. [Emphasis added]

The "specifications and limitations" must be applicable to the "operation" of the crane. As applied to a machine, "operation" means "a method or manner of functioning." Webster's New Collegiate Dictionary. The disassembly of a crane's boom can hardly be said to be applicable to its "operation." This is borne out also by the words "capacity, rating or scope" in the "last sentence; these matters definitely are applicable to the "operation" of the crane and are illustrative of its meaning.
Of course, it might be said that the boom of a crane has to be disassembled to permit its movement from one place to another and that in a larger sense this is part of its operation. However, standards should not be stretched to fit a particular hazard not covered by the plain meaning of its words. Butler Constructors, Inc., 76 OSAHRC 149/A2, 4 BNA OSHC 1928, 1976-77 CCH OSHD ¶21,394 (No. 11,553, 1976).

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On July 11, 1985, Austin was not in violation of 29 C.F.R. 1926.21(b)(2) or 29 C.F.R. 1926.550(a)(1).

ORDER

In consideration of the foregoing Decision, it is ORDERED that:

Items 1a and 1b of citation 1, alleging serious violations of 29 C.F.R. 1926.21(b)(2) and 29 C.F.R. 1926.550(a)(1), are VACATED.

DEE C. BLYTHE
Administrative Law Judge

Date: April 18, 1986
Dallas, Texas