SECRETARY OF LABOR,
Complainant.

v.

FLINTCO, INC.,
Respondent.

OSHRC Docket No. 90-2572

ORDER

On September 22, 1992, the Secretary filed a Notice of Withdrawal in the above-captioned case. The Commission acknowledges receipt of the Secretary's Notice of Withdrawal and sets aside that portion of the Judge's Decision and Order affirming the alleged violation of 29 C.F.R. § 1926.21(b)(2). There being no matters remaining before the Commission requiring further consideration, the Commission orders the above-captioned case dismissed.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: September 28, 1992

SECRETARY OF LABOR,
Complainant.

v.

FLINTCO, INC.,
Respondent.

OSHRC Docket No. 90-2572

APPEARANCES:

Janice L. Holmes, Esquire         George R. Carlton, Jr., Esquire
Dallas, Texas                              Dallas, Texas
For the Complainant                   For the Respondent.

Before: Administrative Law Judge Stanley A Schwartz

DECISION AND ORDER

This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to section 10 of the Occupational Safety and Health Act of 1970 29 U.S.C. et seq. ("the Act"). The Occupational Safety and Health Administration ("OSHA"') conducted an inspection of a construction site in Tulsa, Oklahoma on July 26, 1990, after a tragic accident earlier that day in which a crane operated by one of Respondent's employees fell over and caused the death of a passing motorist. The inspection resulted in the issuance of a serious 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. A background of the facts of this case is set out below, followed by the relevant testimony and a discussion of the alleged violations.

Background

On the day of the Accident, Flintco was engaged in an office building 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 "rough terrain" crane in order to lift material off of a scaffold.[[1]] Martin first drove the crane towards the building and then backed it towards Thirteenth Street, with the boom and its attached jib in a lowered position in front of the rig. He then drove towards the building 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 crane towards 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") who inspected the site, saw the crane laying on its side with the boom in a fully elevated position and the outriggers not deployed; the jib had been removed to allow traffic to pass. There were identical load charts and operating instructions on the fuel tank and on the inside of the cab of the crane. The load chart stated that "[t]he load should be restrained from swinging. No on tire operation with jib erected." The operating instructions stated that the "[u]se of jibs, lattice-type boom extension, or fourth section pullout extended is not permitted for pick and carry operations." The CO concluded the operation of the crane with the jib attached and without using the outriggers violated the load chart and caused the accident. He also concluded Martin had not been instructed in the load chart provisions. (Tr. 8; 11-39: 51-55; C-1-10).

The Testimony

Gerald Young, the CO, has been with OSHA for sixteen years and has a BS in aeronautical engineering technology. He has never operated a crane, but has had 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 to the end boom, the manufacturer's instructions prohibit it from being on the boom when the sitting on its tires. His opinion was that on-tire operation includes moving and positioning a crane, and that the manufacturer's instructions meant the rig could not be operated 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 works primarily as a carpenter, but also performs crane operation. Martin testified he defined on-tire operation as any lifting or picking up and carrying of a load without the use of outriggers. He said it was his understanding, based on his reading of the operator's manual and lifting charts for the Lorain, that while pick and carry operations were forbidden 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, and has operated cranes for eight or nine years. Rosebrough testified he would consider driving a rig with the outriggers in and the boom raised an on-tire operation. He further testified he had read the manual and lead charts for the Lorain, and that as far as he was concerned, it was permissible to both drive the rig and use it for pick and carry operations with the jib attached and the outriggers in. (Tr. 90-93. 110-15).

Michael Ellis has been a business representative of the International Union of Operating Engineers, Local 627 ("the Union") for eleven years, and has been its assistant business manager for about five years: he was a full-time crane operator for four or five years before becoming a Union representative. Ellis testified the Union's membership includes crane operators, that he investigates accident sites in connection with his position, and that he viewed the subject size on July 26, 1990. He opined that positioning a crane with the boom up is an on-tire operation, and that C-7, the Lorain's load chart, prohibits this activity with the jib attached. Ellis noted it is industry practice to put a jib on and leave it on, and that while it is permissible to travel on tire with the jib lowered, a crane should not be moved with the jib raised without using the outriggers. (Tr. 116-26; 132-34; 137).

Andre Whitson has been the Union's safety director and business representative for six years. He has 22,000 hours of crane operation experience and has run the Union's apprenticeship program for ten years. He also sits on the Union's Safety and Health Portable and Hoisting Committee, which works on ANSI standards. Whitson testified that moving a crane with the job erected, boom raised and outriggers in an on-tire operations. He said the only way to travel under such circumstances would be with the outriggers out and fairly close to the ground, which would still violate C-7. Whitson noted that while moving a crane on tires with the jib attached is a common practice, the activity is totally against manufacturers' instructions. (Tr. 140-50).

Walter Dickinson is employed by United Steel Erectors, a crane rental and steel erection company. He has 25 to 30 years experience as a crane operator and has also worked as an operator's foreman. Dickinson testified his company had rented cranes to Flintco, and that it provided Flintco the Grove crane used at the site. He said the 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, an on-tire operation consists of picking up a load and carrying it with the outriggers sucked in, as opposed to maneuvering a crane without a load, which he described as "setting up." Dickinson noted he moves cranes on tire with the jib attached and boom raised as a matter of course. He further noted he had reviewed the operator's manual and other materials for the subject crane. He understood C-7 to prohibit picking up a load with the jib attached without the outriggers, and said there was nothing in the literature he had seen to prohibit moving the crane with the jib attached and without a load, whether the boom was up or down. (Tr. 161-70).

Richard Murray has a Ph.D. in mechanical engineering. He is currently in independent consulting engineer, and was previously a department head and tenured 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 had performed tests to determine its stability. He concluded it had fallen over due to a basic instability problem which was augmented by its rear axle oscillation valve. He explained that the valve allows the rear axle to pivot and conform to the ground, as opposed to the front axle, which does not pivot. Dr. Murray noted that although this design allows the unit to move over uneven ground, it reduces the stability of the crane and subjects it to tipping over. He also noted the axle automatically locks whenever the boom moves ten degrees off center which restores stability. His opinion was that the jib being attached in this case with the straight forward whether it was raised or not, actually added stability to the rig (Tr. 171-91; R-2-3).

Dr. Murray further testified that although the operator's manual mentions the axle oscillation valve. There is nothing in the manufacturer's literature which would wan an operator of the stability problems caused by the valve. He said an appropriate warning would be to convey the crane's tendency to tip over when the axle is unlocked. He also said it would be possible to have a manual lock that would permit the operator to lock the axle in certain situations, but that doing so would take away the crane's ability to move over rough terrain. Dr. Murray observed that while he did not review the crane's design specifications, its design is typical of all forklift trucks, which must go through ANSI mandated stability tests. He was not aware of the testing the manufacturer conducted, other than its conformance with SAE codes, but he was sure 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 had been around them and had familiarized himself with the industry terminology through his investigation. It was his belief that an on-tire operation is one in which a load is picked 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 in the crane, none of which, in his opinion, prohibits the movement of the crane with the jib attached 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 the manufacturer's specifications and limitations applicable to the operation of cranes or derricks: On jobsite: employees operated a Lorain LRT 275D rough terrain crane in "On Tire" operations with jib erected prohibited by manufacturer's specifications which is shown on load chart posted on crane, exposing employees and operators to the hazard of crane being turned over.

As noted supra, the load chart instructions for the subject crane prohibit on-tire operation with the jib erected. The OSHA standard does not define on-tire operation. It does refer an employer to an applicable manufacturer's specifications and limitations. However, none of the manufacturer's literature presented at the hearing defines this term. Moreover, although the manufacturer's instructions refer to ANSI B30.5, that standard likewise provides no definition of on-tire operation. See R-1, General Notes. The question to be resolved, therefore, is whether Martin's maneuvering of the crane on the day of the accident constituted on-tire operation.

Seven witnesses with varying degrees of experience in regard to cranes offered their opinions as to the meaning of on-tire operation. After considering these opinions, I conclude that Dickinson's is the most persuasive based on his many years of crane operation experience. He testified that an on-tire operation consists of picking up a load and carrying it with the outriggers sucked in, as opposed to maneuvering the crane without a load, which he called "setting up." Based on this testimony, and the fact that neither the manufacturer's literature nor ANSI B30.5 defines the term. I am not convinced that Martin's positioning of the crane was an on-tire operation; to the contrary, the record indicates his activities were more in the nature of "setting up" the crane in order to perform a lifting operation. Under the unique circumstances of this case, I find the Secretary has not met her burden of proving by a preponderance of the evidence that the limited maneuver performed by Martin was contrary to the manufacturer's specifications.

In so finding, I am well aware of the fact that the crane fell over and caused the death of a motorist. However, it is well settled by Commission precedent that the occurrence of an accident, no matter how tragic, does not establish a violation. Moreover, while the Secretary disagrees with Dr. Murray's opinion, his testimony about the oscillation valve was both reasonable and credible and is instructive as to why the crane became unbalanced and tipped over. This testimony, while not dispositive, 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 establish a 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 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: On jobsite employees operated a Lorain LRT 275D rough terrain crane, in an "On Tire" manner traveling with boom raised and jib erected, exposing operators and employees to the hazard of crane being turned over.

Although the foregoing refers specifically to the operation of the crane on the day of the accident, it is clear from the record the parties were trying the general issue of whether Flintco instructed its employees in the hazards of crane operation. Consequently, the fact that Martin's actions did not constitute on-tire operation does not, standing alone, require vacating this item.

Respondent contends it did not violate the standard because it provided comprehensive instructions in regard to crane operation. The record shows that Martin, 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 that Rosebrough, as the more experienced operator, instructed Martin as to its capacity and operation. (Tr. 36; 39; 51- 52; 71; 74-77; 84; 97-110; 113-14). Regardless, Rosebrough clearly testified he believed it was permissible to perform pick and carry operations with the 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 instructions regarding the hazards of the workplace. The record demonstrates that Rosebrough, who the company trusted to instruct Martin, felt comfortable ignoring specific manufacturer's instructions which, unlike on-tire operation, are beyond dispute as to their meaning. It follows that Rosebrough was not provided adequate instructions with respect to the hazards of crane operation. A violation of 29 C.F.R. § 1926.21(b)(2) has been established. This citation item is affirmed as a serious violation, and the proposed penalty of is assessed.

Conclusions of Law

1. Respondent, Flintco Inc., is engaged in a bussiness affecting commerce and has employees within the meaning of section 3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matter of the proceeding.

2. On July 26, 1990, Respondent was in serious violation of 29 C.F.R. § 1926.21(b)(2).

3. On July,26, 1990, Respondent was not in violation of 29 C.F.R. § 1926.550(a)(1).

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law, It Is ORDERED that:

1. Item 1 of citation number 1 is AFFIRMED as a serious violation, and a penalty of $I,000.00 is assessed.

2. Item 2 of citation number 1 is VACATED.

Stanley M. Schwartz
Administrative Law Judge

DATE: MAY 11, 1992

FOOTNOTES:

[[1]] The record shows Flintco had leased two cranes at the site. One was a 15- or 18-ton Grove used from May to about mid-July, 1990; the other was the Lorain, which was in use after July 4, 1990. (Tr. 34-36; 65-66; 70-72; 76-78; 95-99; 162; 166-67).