CAPITOL ERECTION AND ENGINEERING COMPANY, INC.
OSHRC Docket No. 12971
Occupational Safety and Health Review Commission
April 19, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Norman H. Winston, Associate Regional Solicitor
Ralph B. McPhail, President, Capitol Erection & Engineering Co., Inc., for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision [*2] is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
The decision of the Judge, attached hereto as Appendix A, should be affirmed for the reasons given in his decision except that all items of the citation charging that respondent failed to comply with the requirements of 29 C.F.R. § 1926.550(a)(1) should be vacated. That standard is invalid and unenforceable since by its terms complainant has illegally delegated to manufacturers his authority under the Act to promulgate occupational safety and health standards. See my separate opinion in Secretary v. Martin Iron Works, Inc., 15 OSAHRC 33, 36 (1975) for a full discussion of the reasons for this conclusion.
Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions [*3] rendered by Review Commission Judges.
APPENDIX A
DECISION
Ellis V. Cruse, Office of the Solicitor, U.S. Department of Labor, for complainant
Ralph B. McPhail, President, Capitol Erection & Engineering, Inc., for respondent
STATEMENT OF THE CASE
Patton, Judge: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.
The citation alleges that as the result of the inspection of a workplace under the ownership, operation, and control of the respondent at Tupelo, Mississippi, the respondent has violated section 5(a)(2) of the Act by violating standards 29 C.F.R. 1926.550(a)(1), 29 C.F.R. 1926.550(a)(12), 29 C.F.R. 1926.550(a)(14)(i), ANSI B30.5-1968, standard 29 C.F.R. 1926.550(b)(1), standard 29 C.F.R. 1926.750(b)(1)(ii), and standard 29 C.F.R. 1926.450(a)(10). Hearing was held in Okolona, Mississippi, on July 16, 1975. Both parties appeared and presented evidence. There was no motion to intervene.
LAW AND ISSUES [*4] OF THE CASE
The respondent at the hearing stated that several of the alleged violations were not contested.
It was alleged that there was heavy structural damage readily visible on the boom jib and the main boom in violation of standard 29 C.F.R. 1926.550(a)(1).
It was alleged that the "Crosby Clips" supporting the boom jib were assembled with U-bolts on the live ends of wire ropes in violation of standard 29 C.F.R. 1926.550(a)(1). It was alleged that the boom section assembly load points (binch pins) were secured with broken and bent welding electrodes in violation of standard 29 C.F.R. 1926.550(a)(1).
It was alleged that there were no fully charged 5BC, or larger, fire extinguisher available at, or in the crane cab, in violation of standard 29 C.F.R. 1926.550(a)(1) and 2. C.F.R. 1926.550(a)(14)(i) and ANSI B30.5-1968.
The respondent stated at the hearing of this cause that it does not contest, but admits the allegations of violation of each of the above standards in the way herein above set forth.
It was alleged that respondent failed to secure a portable ladder used by its employees in violation of standard 29 C.F.R. 1926.450(a)(10). This was not contested.
It was alleged [*5] that there were four flame polished ends of suspension wire ropes on boom support and load block support in violation of standard 29 C.F.R. 1926.550(a)(1). The respondent does contest this allegation.
It was alleged that crane outriggers and truck tires were supported on loose scrap lumber and loose scrap plywood in violation of standard 29 C.F.R. 1926.550(a)(1). The respondent contests this alleged violation.
It was alleged that the crane operator's front glass was shattered in violation of standard 29 C.F.R. 1926.550(a)(1) and 29 C.F.R. 1926.550(a)(12). The respondent contests this allegation.
It was alleged that the boom jib did not have positive stops to prevent movement of more than five degrees above the straight line of the jib and boom in violation of standards 29 C.F.R. 1926.550(a)(1) and standard 29 C.F.R. 1926.550(b)(1).
It was alleged that respondent failed to provide any employee protection from falls by use of scaffolds, safety nets, guardrails, or the equivalent, in violation of standard 29 C.F.R. 1926.750(b)(1)(ii). The respondent contests this allegation.
Standard 29 C.F.R. 1926.550(a)(1) provides as follows:
"The employer shall comply with the manufacturer's [*6] 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 question, therefore, arises insofar as the contested alleged violations of standard 29 C.F.R. 1926.550(a)(1) are concerned, whether manufacturer's specifications and limitations exist, and if so, whether the respondent has complied with them.
The respondent maintains that although the glass in the cab was broken, it was pulled back away from the driver and was not used while said vehicle was in operation.
An issue exists as to whether employees worked at sufficient height to make necessary the establishment of protection against falls.
The issue also exists as to whether the boom jib had positive stops to prevent movement of more than five degrees above the straight line of the jib and boom.
EVIDENCE IN THE CASE
Mr. [*7] Ralph McPhail, president of respondent, testified when called to the stand under Rule 43(b) that respondent is engaged in a construction business and was, at the time of the alleged violation, engaged in work on the North Mississippi Medical Center Building in Tupelo, Mississippi. The respondent was erecting structural steel as a subcontractor. He stated that some steel was purchased from State Metal Products, which company in turn secures said steel from Japan and France. He stated that steel is smelted outside of the State of Mississippi. He was of the impression that the crane, which the respondent operated, was manufactured in Tulsa, Oklahoma (Tr. 12, 13). He stated that the company had used steel on other jobs which was made outside the State of Mississippi (Tr. 17). Mr. McCoy, compliance officer for the respondent, testified that the American crane which was used by the respondent is manufactured in Cincinnati, Ohio (Tr. 56). Mr. McPhail further testified that respondent has worked as subcontractor for prime contractors who work out of the State. Respondent also built a school at Vidalia, Louisiana (Tr. 20).
Mr. Carl McCoy, compliance officer for the complainant, testified [*8] that the respondent had an improperly attached ladder which its employees were using. A photograph of the ladder was introduced in evidence as an exhibit (Tr. 30, 31). Mr. Louis B. Harvey was the employee using the ladder. Mr. McPhail, president of the respondent, confirmed that the ladder was unsecured. He stated that the ladder belonged to J.B. Womack Construction Company, and their carpenters used it. Mr. McPhail admitted, however, that respondent's employees also used it at times. He stated it had been fastened off at the top, but someone unfastened a wire and moved the ladder over; it was not refastened (Tr. 67).
Mr. McCoy testified that a boom on an American crane used by the respondent on the job was suspended by wire rope and intentionally held at the upper ends of the boom near the load shafts. The wire rope was melted by a burning torch. He stated the term used in the industry is "flame polish" (Tr. 34). He stated that the term means a melting or fusing of the free ends that are cut or broken ends of the cable or wire rope to avoid them spreading out, unraveling, or frazzling from use (Tr. 35). He testified that the hazard resulting was when heat is applied to [*9] the wire rope, it causes the rope to melt, and the wire is grossly weakened (Tr. 35).
Mr. McCoy testified that the respondent operated a crane mounted on a truck chassis, and that the crane is called a motor crane or a truck crane (Tr. 36). The crane outriggers and the truck tires were supported on loose scrap lumber and loose scrap plywood (Tr. 36). He stated the scraps were broken, loose, and irregular shaped. They were on the parking lot, which was irregular and not level (Tr. 36, 37). He stated that the threaded feet, or the column feet, supporting the feet of the outriggers were, in places, heavily damaged so that threads would not come down on a solid foundation, and the wheels on all sides were resting on the ground when the crane was used (Tr. 37, 38). Because of the damage to the threads, the wheels would not lift high enough; and for that reason, the crane rested on scrap lumber (Tr. 40, 41). A photograph was introduced into evidence as complainant's exhibit 2 (Tr. 42).
On the other hand, Mr. McPhail testified that the wheels were not resting on the plywood, or the ground, and that Mr. McCoy checked and kicked each wheel, and turned them over, proving the wheels [*10] were completely off the ground (Tr. 60). Mr McCoy, on rebuttal testimony, denied that he kicked the wheels, and reiterated that they were on the ground (Tr. 80). Mr. McPhail stated he had to level the crane with what timber they could use safely. He stated the timbers were four-by-six feet, and that they were matted out on a hard concrete surface. They then put plywood on top of them to secure them safely. He stated plywood is one of the safest timbers on the market; that it will bend and not break. He denied that the screws on the screw jack were damages. Mr. McPhail stated he simply did not have them screwed all the way down because if they were screwed all the way down, they would get a little whiplash in the crane (Tr. 61). He stated that if they had been damaged, it would be impossible to turn them; but they were not damaged, they were just not all the way down (Tr. 64).
Mr. McCoy, on rebuttal, described the threads as having the shoulders deformed; they had dents and cuts, and it was impossible to screw down into the female part, or the journey part of the thread. He stated they had been screwed as far as possible (Tr. 81, 82).
Mr. Burns, who was an employee on the [*11] project, supported Mr. McPhail's statement that the screws could be screwed all the way into the crane. He stated they were oiled and greased for that purpose. He stated he screwed them out with a spud wrench and denied that they were in any way damaged. Mr. Burns stated that truck crane could be lifted to a point where the wheels would not touch the ground. They couldn't raise the wheel because the screws were not that long. They had to put cribbing under it (Tr. 88, 89, 90). Mr. McCoy said wheels on all sides were resting on the ground when the crane was in use (Tr. 38).
It appeared from complainant's exhibit 2 that the wheels were on the ground.
Mr. McCoy stated that such procedure was generally recognized as unsafe because part of the weight is resting on springs of the vehicle. The boom of the crane can extend very high and far out, and a great deal of weight is considerably distended overhead of the crane, particularly when there is a load attached. It raises the center of gravity and provides considerable leverage when the crane is transversed, and when the load is released on the crane (Tr. 39). He stated that the crane cab and crane boom tend to whip quite a bit [*12] and become considerably less stable than when the load is taken off the road wheels. It is more stable when the load is applied on the outrigger feet, completely resting on a solid, rigid, non-yielding foundation, such as the concrete or asphalt base. Springs on the truck tend to give, while the outrigging or outriggers are relatively rigid.
Mr. McPhail testified that he slid boards under the wheels. It was still possible to turn them. He stated in case something broke, it would not fall down and turn over (Tr. 74). He admitted that exhibit C-2(b) showed wood under the wheels, but said that the wheels would still spin (Tr. 75). Mr. McPhail stated Mr. McCoy walked up, put his foot on them, turned them, and said, "You have got those up now" (Tr. 75). There was no wood under the rear wheels according to Mr. McPhail. Mr. McPhail did not agree that the photographs showed the wheels on the ground (Tr. 75, 76). The wheels could be rotated with a man's hand (Tr. 76). Mr. McCoy said the function of the wheels is strictly not to bear the load of the crane. The outriggers of all duch cranes are so constituted, in that they will bend considerably before they break. They are so designed [*13] that if the crane is grossly overloaded, girders will be bending so that they will not be withdrawn back into the crane. According to Mr. McCoy, they cannot break because of the very careful quality-controlled construction (Tr. 80). Mr. McCoy said that road wheels used to transport the crane are to be used only for road travel and movement of the crane, and never to be used to support the crane in any manner while the crane is taking a load on its boom. The hazard is that springs of the crane are elastic, outriggers are not elastic, and they do not allow for whipping or bouncing when the load is applied, or booms are erected, or the booms are traversed. Loose scraps of lumber do not constitute a solid foundation. Wood always fails under compression, that is, by the crushing of the fibers of the wood (Tr. 36).
Mr. McCoy testified that the main glass in front of the operator on the cab of the crane, through which the operator would be viewing the location of the crane and any operating signals, was shattered. Several cracks extended radially from the center of the glass (Tr. 42, 43).
Mr. McPhail stated that the glass was broken by children in the parking lot about two or three [*14] weeks prior to the date of inspection (Tr. 61, 62). Mr. McPhail testified, however, that the glass is not used by the operator in operating the crane. The glass slides back over and beyond the operator. The only reason for the glass, according to Mr. McPhail, is to protect the crane from the weather when it is not being operated. It does not operate when the glass is closed because they do not have a full view of the men with it closed. He stated with the glass closed, they might get a deflection. Mr. McPhail stated on occasions when he operated the crane, he did not even wear shades because he was afraid he might not pick up every little thing he needed to see (Tr. 61, 62). The glass pulls up, slides back into a track and goes back behind the operator. It is not over the engine or operator when pulled back (Tr. 62, 63). At the time of inspection, and at the time the picture was taken, the crane was locked, tied down, and not in operation (Tr. 63).
Mr. McCoy testified that the boom jib did not have positive stops to prevent movement of more than five degrees above the straight line of the jib and boom. The load end of the boom had a conventional jib with extension sections [*15] in the middle of it. The crane was taking a load on the jib section of the crane on the jib load block. There were no mechanisms or jib stops to prevent the jib from backlashing or bouncing in the event a load was suddenly released from the jib load line (Tr. 43, 44). Complainant's exhibit 3 was introduced into evidence to show said condition. The crane elevation was approximately 75 feet above the ground (Tr. 44, 45).
The function of a positive jib stop, according to Mr. McCoy, is to regain the jib at its location in case a load is dropped by the crane jib load line. If the load is dropped, the inertia of the crane or any elasticity of the boom causes the jib and the wire rope to tend to flip the jib back over the back side of the top side of the main boom, dropping it and other heavy metal parts down across the top of the boom onto the operator or other personnel on the ground nearby (Tr. 54). He stated the boom has no stops of any kind.
On the other hand, Mr. McPhail testified that the boom jib had stops and also a chain for double safety (Tr. 68, 69). He described a positive stop as any kind of stop that would stop the jib (Tr. 69). If anything happened to the operator, [*16] it would stall the engine and kill the motor of the crane (Tr. 69, 70). He described them as factory jib stops. These factory jib stops were on the crane at the time of inspection. After the inspection, he took them off and put heavier stops on. He testified the factor stops do not come up to Occupational Safety and Health Administration specifications because they are not five percent stops (Tr. 77, 78).
Mr. McCoy testified that an employee was working in the canopy area on horizontal flange beams at the sixth floor level. There was nothing between the employee and the ground, which was a distance of approximately 60 feet. Two photographs were introduced into evidence as complainant's exhibits 4 and 5 (Tr. 46, 47, 48). The employees were not wearing safety belts (Tr. 48, 49). The respondent's employees had safety belts and lanyards, but they were not in use (Tr. 50). Mr. McCoy observed Mr. Burns and Mr. McPhail atop the canopy level. Also, adjacent to the canopy level on the fifth floor, he observed Mr. Louis Harvey. Mr. McPhail agreed that complainant's exhibit 4(c) showed no guardrail (Tr. 73). Mr. McPhail said the employees did not have safety belts on that morning [*17] because they were working low on the roof on a building two stories high. The first floor was only 16 inches down from the roof, and that was the part they were working on (Tr. 65). He said an employee could only fall 16 inches (Tr. 65, 66). Mr. McPhail testified respondent had never had an accident (Tr. 61).
EVALUATION OF THE EVIDENCE
Although it is not admitted that the respondent is engaged in interestate commerce, the evidence establishes that the respondent is engaged in work which affects interstate commerce. Mr. McPhail testified that the respondent uses steel which is manufactured in Japan and France. He has used steel on other jobs made outside of Mississippi. He built a school in Vidalia, Louisiana; and, therefore, operates in several states. The crane used was manufactured in Tulsa, Oklahoma. The respondent, therefore, falls within the jurisdiction of the Act.
It will be observed that standard 29 C.F.R. 1926.550(a)(1) requires the employer to comply with manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks. It is further provided that if manufacturer's specifications are not available, limitations assigned [*18] to the equipment shall be based on the determination of a qualified engineer, competent in the field, and such determination should be appropriately documented and recorded. There is no evidence in the record of whether there are manufacturer's specifications and limitations, and, if so, what these specifications and limitations are. There is evidence in the record to the effect that various actions of the respondent, alleged to be in violation of said standard, are unsafe. The standard, however, is not a general purpose standard and does not authorize a finding of violation based on proof of lack of safety of method of operation. There is a violation only if the employer has not complied with the manufacturer's specifications and limitations. There being no evidence as to what these specifications and limitations are, and the burden of proof being upon the complainant, there is nothing in evidence from which it could be held that the respondent has violated manufacturer's specifications and limitations. There is no statement in the evidence that the manufacturer's specifications are not available; therefore, the respondent is not shown by evidence to be required to have a qualified [*19] engineer's determination appropriately documented and recorded. A necessary link in the proof, therefore, is missing, and a prima facie case of violation insofar as 29 C.F.R. 1926.550(a)(1) is concerned has not been established. The allegation that in Citation 2(b) there were four plain polished ends of suspension wire ropes on the boom support and load blocks support, only cites standard 29 C.F.R. 1926.550(a)(1). Since there is a violation of this standard only if there has been a failure to follow the manufacturer's specifications, the complainant has failed to establish that the polished ends of suspended wire ropes constitute a violation of the Act.
The allegation that crane outriggers and truck tires were supported on loose scrap lumber and loose scrap plywood also only refers to standard 29 C.F.R. 1926.550(a)(1). It not having been established that this constitutes a violation of manufacturer's specifications, nor that manufacturer's specifications are not available, this alleged violation has not been established.
It is alleged that the crane operator's front glass was shattered. This is alleged to be a violation of standards 29 C.F.R. 1926.550(a)(1) and 29 C.F.R. 1926.550(a)(12). [*20] This allegation cannot be sustained under standard 29 C.F.R. 1926.550(a)(1) for the above-stated reasons. Standard 29 C.F.R. 1926.550(a)(12) states that all windows in cabs shall be of safety glass, or equivalent, that introduces no visible distortation that will interfere with the safe operation of the machine. It is admitted that said glass was broken, and if the glass had been used when the machine was in operation, a violation would have been clearly established. The uncontroverted evidence, however, is to the effect that at all times the machine was in operation, the glass was moved back behind the operator, and that the operator never tried to look through the glass. The testimony of Mr. McPhail was to the effect that it was not safe to use the glass, even unbroken, because the view was not as wide with the glass in front of the employee as it was without it, and he could not adequately see men and signals, etc. The broken glass constitutes a violation only if it was used, and the employees were subjected to a hazard. The glass being on the machine to keep the weather off of it when not in use in no way constituted a hazard to employees. Mr. McCoy stated on direct examination [*21] that the reason it would be dangerous to use broken glass was because the operator would have his vision obscured when raising the crane, and it obscures the perception of depth by the operator in positioning a load for the crane. Of course, these things could not happen if the glass was not being used at all. Mr. McCoy testified on rebuttal, after testimony that the glass was not used, that the glass would have constituted a shield against any possible rocks flying up or anything of that kind, and something might hit the employee in the face without the glass (Tr. 85). It does not appear that the glass, as a shield against that type of possibility, is the purpose for which standard 29 C.F.R. 1926.550(a)(12) was promulgated.
It should be noted that said standard provides that all windows in cabs shall be of safety glass or equivalent, etc., and there is no provision in said subsection that the cab shall have windows. The only provision is that such windows as exist shall be of safety glass or equivalent. The purpose is evidenced in the balance of the sentence, ". . . that introduces no visible distortion that will interfere with the safe operation of the machine." The allegation [*22] of violation of this subsection, therefore, has not been sustained.
It was further alleged that the boom jib did not have positive stops to prevent movement of more than five degrees above the straight line of the jib and boom. There was a conflict in evidence as to whether there were any stops on said equipment. Mr. McCoy stated very emphatically that they did not exist, and Mr. McPhail stated just as emphatically that there were what he described as factory stops on the equipment. This standard, however, has been violated in either event. Mr. McPhail admitted that the stops, which he alleged to be upon the equipment, did not conform with the requirement of "five degrees" and; therefore, the requirements of the standard have not been met.
A failure of the equipment in regard to this standard could have serious consequences, and it appears that it does fall under the definition of a serious violation. The proposed penalty for Citation Number 2 is not broken down between the alleged violations, but a total penalty for alleged violation of Citation Number 2 in the amount of $800 is proposed. A penalty in the amount of $400 for violations of Citation Number 2 would appear appropriate. [*23]
It was further alleged that a serious violation occurred by the failure of the respondent to provide any employee protection from falls in the canopy area by use of scaffolds, safety nets, or guardrails. Mr. McCoy testified that the employees were working on flanges of horizontal beams on the 6th floor levels, 60 feet above the ground with nothing to impede their fall (Tr. 48, 19). It was admitted by Mr. McPhail that there was no guardrail. Photographs introduced into evidence substantiate the testimony of Mr. McCoy that people were walking in a dangerous area, at a high elevation, without any impediment to a fall. This allegation, therefore, has been sustained. A penalty in the amount of $800 was proposed for this violation. In view of the probability of death in the event of a fall, the penalty would appear to be appropriate.
It was alleged that the respondent failed to have a ladder properly secured, and that this constituted a non-serious violation. There was no conflict in the evidence in regard to the ladder not being secured. Mr. McPhail stated that an employee would fall only a few inches, and Mr. McCoy stated that an employee could fall two feet if he landed on [*24] the 6th level, on which the the ladder existed, or if he missed that level and fell to the 5th level, it would be a distance of 12 feet. A fall at a distance of 12 feet could result in injury. Apparently, there was a chance that an employee, if he fell, would only fall a maximum of 2 feet, falling to the 6th floor, in which event substantial injury would be improbable. A large penalty would not be justified for violation of this standard. It would appear, however, that these factors have been taken into consideration by complainant, and the proposed penalty in the amount of $80 does not appear excessive.
FINDINGS OF FACT
1. Respondent is a corporation having a place of employment, among other places, at a construction site at Tupelo, Mississippi, where it was engaged in construction work at the North Mississippi Medical Center. Part of the raw materials, equipment, and supplies purchased by respondent were initially shipped from points beyond the State of Mississippi. The respondent has engaged in construction work outside the State of Mississippi.
2. Respondent was, on or about April 4, 1975, engaged in erection of structural steel at the North Mississippi Medical Center [*25] in Tupelo, Mississippi.
3. On or about said date, the respondent's employees went up a ladder which was improperly secured.
4. The maximum distance an employee could have fallen would have been 12 feet.
5. The respondent, on or about April 4, 1975, operated an American Truck Crane on which there was heavy structural damage readily visible on the boom jib and the main boom.
6. On or about April 4, 1975, respondent maintained four plain polished ends of suspension wire rope on the boom support and load lock support.
7. On or about said date, "Crosby Clips" supporting the boom jib were assembled with new bolts on the live ends of wire ropes.
8. On or about said date, the boom section assembly load points binch pins were secured with broken and bent welding electrodes.
9. On or about said date, the crane outriggers were supported on loose scrap lumber and loose scrap plywood.
10. On or about said date, the glass in the cab of the crane operated by the respondent was shattered.
11. At all times said crane was operated, the glass was not used in the vision or the driver of the crane but was placed in position behind the driver. Said glass was only used in its normal place [*26] in front of the cab when the crane was not in operation, and was used to protect the crane from the weather.
12. On or about said date, there was no fully charged 5BC or larger fire extinguisher available at or in the crane cab.
13. The boom jib did not, on or about said date, have positive stops to prevent movement of more than five degrees above the straight line of the jib and boom.
14. On or about said date, respondent failed to provide protection to employees walking at heights of 60 feet above the ground by use of scaffolds, safety nets, guardrails, or any other means.
CONCLUSIONS OF LAW
1. By failing to secure the portable ladder in use by employees, respondent violated standard 29 C.F.R. 1926.450(a)(10).
2. By permitting use of the American Truck Crane with heavy structural damage readily visible on the boom jib and the main boom, respondent violated standard 29 C.F.R. 1926.550(a)(1).
3. It has not been established that respondent violated 29 C.F.R. 1926.550(a)(1) by use of four flame polished ends of suspension wire ropes on boom support and load lock support.
4. The respondent, by using "Crosby Clips" supporting the boom jibs which were assembled with [*27] U-bolas on the live ends of wire rope, violated standard 29 C.F.R. 1926.550(a)(1).
5. The respondent, by permitting the boom section assembly load point binch pins to be secured with broken and bent welded electrodes, violated standard 29 C.F.R. 1926.550(a)(1).
6. The allegations that the respondent violated standard 29 C.F.R. 1926.550(a)(1) by permitting the crane outriggers and truck tires to be supported on loose scrap lumber and loose scrap plywood has not been sustained.
7. It has not been established that respondent violated standard 29 C.F.R. 1926.550(a)(12) by having broken glass on said crane.
8. Respondent, by not having fully charged 5BC or larger fire extinguishers available at or in the crane cab, violated standard 29 C.F.R. 1926.550(a)(1), 29 C.F.R. 1926.550(a)(14)(i) and ANSI B30.5-1968.
9. The respondent, by operating a boom jib that did not have positive stops to prevent movement of five degrees above the straight line of the jib and boom, violated standard 29 C.F.R. 1926.550(a)(1).
10. The respondent, by failing to provide employees protection from falls in the canopy area by use of scaffolds, safety nets, guardrails, or the equivalent, where said employees [*28] worked at a height of 60 feet, violated standard 29 C.F.R. 1926.750(b)(1)(ii).
ORDER
It is therefore ORDERED:
That respondent was, on or about April 4, 1975, in violation of standard 29 C.F.R. 1926.450(a)(10) for failing to secure the portable ladder used by employees. Said violation is a non-serious violation. A penalty in the amount of $80 is assessed for said violation. The proposed abatement date is affirmed.
Respondent was in violation of the following standards cited in Serious Citation Number 2. Said violations constituted serious violations.
There was heavy structural damage readily visible on the boom jib and the main boom in violation of standard 29 C.F.R. 1926.550(a)(1)
The respondent violated standard 29 C.F.R. 1926.550(a)(1) by permitting the "Crosby Clips" supporting the boom jib to be assembled with new bolts on the live ends with wire ropes.
The respondent was in violation of standard 29 C.F.R. 1926.550(a)(1) by permitting the boom section assembly load points binch pins to be secured with broken and bent welding electrodes.
The respondent was in violation of standard 29 C.F.R. 1926.550(a)(1), and 29 C.F.R. 1926.550(a)(14)(i), and ANSI B30.5-1968 by [*29] having no fully charged 5BC, or larger, fire extinguisher available at or in the crane cab.
Respondent was in violation of 29 C.F.R. 1926.550(b)(1) by permitting the boom jib to operate with no positive stops to prevent movement of not more than five degrees above the straight line of the jib and boom. The allegations that said action was a violation of standard 29 C.F.R. 1926.550(a)(1) are dismissed.
A penalty in the amount of $400 is assessed for all of the above violations of Citation Number 2. The proposed abatement dates are affirmed.
Respondent is in violation of standard 29 C.F.R. 1926.750(b)(1)(ii) by failing to provide employees with scaffolds, safety nets, guardrails, or the equivalent, at points where they worked at heights in excess of 60 feet. Said violation is a serious violation. A penalty in the amount of $800 is assessed for said violation. The proposed abatement date is affirmed.
The allegations n the citation and complaint that respondent used four flame polished ends of suspension wire ropes on the boom support and load block support in violation of standard 29 C.F.R. 1926.550(a)(1) are dismissed.
The allegations in the citation and complaint that respondent [*30] used crane outriggers and truck tires which were supported on loose scrap lumber and loose scrap plywood in violation of standard 29 C.F.R. 1926.550(a)(1) are dismissed.
The allegations in the citation and complaint that respondent used a crane with the operator's front glass shattered in violation of standard 29 C.F.R. 1926.550(a)(1) and 29 C.F.R. 1926.550(a)(12) are dismissed.
Dated this 5th day of January 1976.
JOHN S. PATTON, Judge