ARIZONA PUBLIC SERVICE CO., A CORPORATION
OSHRC Docket No. 8501
Occupational Safety and Health Review Commission
January 4, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
John M. Orban, Office of Solicitor
Frederick K. Steiner, Jr., for the employer
OPINION:
DECISION
BARNAKO, Chairman:
A decision of Administrative Law Judge Erwin L. Stuller is before us on review. The decision affirms a citation alleging that Respondent violated the Occupational Safety and Health Act of 1970 n1 by failing to comply with the construction safety standard at 29 C.F.R. § 1926.556(b)(2)(ix). Respondent petitioned for review, and review was granted of the following issues: (1) Whether the Judge erred in finding that Respondent's Tel-E-Lect Commander Two was "primarily designed" as a personnel carrier and therefore that the requirements of 1926.556(b)(2)(ix) are applicable to it; (2) whether the Judge erred in finding that Respondent is required by the standard to have a "complete set" of "upper" controls on the Tel-E-Lect Commander Two; and (3) whether the standard is unenforceably vague.
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n1 29 U.S.C. § 651 et seq., hereinafter "the Act."
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For the reasons given below, we conclude that the Judge did not err in his disposition of the issues. We adopt Judge Stuller's decision to the extent that it is consistent with the following.
Respondent used a Tel-E-Lect Commander Two crane in its business of erecting, maintaining, and repairing power transmission lines. The Commander Two crane was designed originally to be used for lifting heavy loads of materials and equipment. It consisted basically of a truck, a boom, and lifting devices attached to the boom. The manufacturer subsequently redesigned it to make it more versatile. In its modified form, aerial work platforms could be attached to the boom.
Respondent attached a double spinner aerial platform device to a pedestal on the boom of its Commander Two crane. A double spinner is a personnel lift provided with two separate swinger arms with a work platform at the end of each arm. Respondent uses the crane to position employees within reach of the tops of power line poles il order that they may perform line work. Positioning is accomplished through the use of controls located on the truck and on the platforms.
The [*3] platforms, however, are not provided with the same sets of controls. One of them has controls for moving the boom vertically and rotating it horizontally, controls for moving its swinger arm horizontally and vertically, and trolley controls for moving the platform in and out from the pedestal at the boom connection point. It also has a platform brake and a dump valve switch that can be used to shut off all operations. The other or second platform is provided only with the swinger arm controls, the platform brake, and the dump valve switch. It is not provided with boom or trolley controls. Consequently, an employee on the second platform is unable to adjust the position of the platform once it has been moved to a general work area, in that he is not provided with control of the boom and of the trolley. He would not be able to move it into or out of the area.
The standard at issue, 1926.556(b)(2)(ix), is as follows:
"Articulating boom and extensible boom platforms, primarily designed as personnel carriers, shall have both platform (upper) and lower controls. Upper controls shall be in or beside the platform within easy reach of the operator. Lower controls shall provide [*4] for overriding the upper controls. Controls shall be plainly marked as to their function. Lower level controls shall not be operated unless permission has been obtained from the employee in the lift, except in case of emergency. (emphasis added).
Applicability of the Standard
Respondent argues that Complainant did not show that the standard applies to the crane since he failed to establish that it was primarily designed as a personnel carrier. In addition it argues that the standard addresses equipment "primarily designed" as a personnel carrier, not equipment simply used as one. Complainant argues that Respondent's conversion of the crane to use as a personnel carrier altered its primary design to that of a personnel carrier. The Judge agreed with Complainant.
We note that the parties and the Judge viewed this issue in terms of whether Respondent's Tel-E-Lect Commander Two crane was primarily designed as a personnel carrier. The standard, however, does not speak in terms of whether a crane is designed as a personnel carrier. It refers to the design of platforms and does not mention the vehicle on which the platform is mounted. By its terms, the standard applies [*5] to, "Articulating boom and extensible boom platforms, primarily designed as personnel carriers. . ." (emphasis added).
In this regard, we note that the section in which the cited standard is found, 1926.556, entitled, "Aerial Lifts," incorporates some of the requirements of the "American National Standard for Vehicle-Mounted Elevating and Rotating Work Platforms. . ." ANSI A92.2-1969. n2 Paragraph 1.1.2. of that ANSI standard states, "Equipment Not Covered. The scope of this standard does not include . . . any matter relating to the vehicles upon which aerial devices are mounted, except in respect to a vehicle being a stable support for the aerial device."
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n2 1926.556(a) provides, in pertinent part, "Unless otherwise provided in this section, aerial lifts . . . shall be designed and constructed in conformance with applicable requirements of the American National Standard for 'Vehicle Mounted Elevating and Rotating Work Platforms,' ANSI A92.2-1969. . ."
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We conclude, therefore, that the "primarily designed" [*6] determination must be made on the basis of whether the platform itself was so designed, without regard to the vehicle it was mounted on. Since the platforms in issue were unquestionably designed to be personnel carriers, we reject Respondent's applicability argument.
Interpretation of the Standard
Respondent argues that the terms of the standard do not require complete controls for all platforms. In Respondent's opinion, the Judge's interpretation of the standard as requiring complete controls on all platforms is legal interpolation that is not justified by the terms of the standard. The standard, Respondent argues, simply states that controls are required. It claims that, since both platforms have some controls, it was in compliance with the standard. Complainant argues that the controls on the second platform are inadequate since they only provide for a limited range of platform movement. The Judge interpreted the standard as requiring a complete set of controls so an employee on the platform can extricate himself if he finds himself in a hazardous situation. He concluded, therefore, that since the controls on the second platform are restrictive in their range, they [*7] are inadequate under the terms of the standard.
We adopt the judge's reasoning. By the plain terms of the standard lower controls are to be provided with the capability to override "platform (upper)" controls. And the lower controls are not to be operated "except in case of emergency." Clearly, the standard contemplates a full range of platform operational controls located near employees on each of the platforms in order that they may control the movement of their platforms. Indeed, by the terms of the standard employees on the platforms are the primary and usual or normal operators of platform movement. Accordingly, the upper or platform controls on each platform must be sufficient to operate all positional movements of the platform. Otherwise, independent operation of the platform with the upper controls would be impossible.
Vagueness
Respondent argues that the standard is unenforceably vague since it does not specify what controls are necessary. Complainant argues that it would not be possible to set out all of the kinds of controls that can be necessary on a personne platform. The Judge rejected the vagueness argument on the around that it is clear which controls [*8] are necessary.
In view of our analysis of the standard as set forth above, we conclude that it is sufficiently specific in its requirements. Accordingly, we find no merit in Respondent's argument.
The Judge's decision is modified to be consistent with the above and as modified is affirmed.
So ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
My colleagues juggle the law and disregard the evidence in order to find that respondent failed to comply with the requirements of 29 C.F.R. § 1926.556(b)(2)(ix). Thus, their holding is incorrect in both law and fact.
Respondent's aerial lift conformed with the control requirements stated in § 1926.556(b)(2)(ix) in that it was equipped with "platform (upper) and lower controls." Although not required by the standard, respondent was cited for failing to have a "full set" of controls on one of the lift's platforms because the two platforms were not equipped with controls of equal capability. My colleagues, however, take over the function of the Secretary of Labor n3 and write a requirement of "complete controls" into the standard by reasoning that additional controls were necessary for employee safety. That conclusion is not supported by [*9] the evidence in this case.
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n3 29 U.S.C. § 655.
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Respondent's expert witness, the Director of Engineering for the manufacturer of respondent's aerial lift who was a member of the American National Standards Institute's (ANSI) subcommittee responsible for the promulgation of the ANSI standard which was the forerunner of 29 C.F.R. § 1926.556(b)(2)(ix), testified that at the time of the promulgation of the standard the industry was sharply divided on the issue of what capabilities were desirable for the upper controls on one-platform lifts in order to promote safety. That disagreement had not been resolved at the time of the trial. Furthermore, he testified that the phrase a "full set" of controls had no meaning in the industry and that, if the same controls were present on both platforms there was a potential danger that one operator might inadvertently activate a control involving the movements of the other operator and thereby place him in a perilous position.
If the industry is still debating what the control capabilities [*10] should be for an aerial lift with one platform - and the Secretary of Labor has no acted under § 655 with respect to this matter - how can my colleagues complacently determine what upper control capabilities would promote safety for a lift with two platforms? Obviously, they can't. Moreover, the soundness of their reasoning is certainly not warranted by the evidence in this case. Camplainant presented no expert to refute the opinions of the respondent's expert witness. His witnesses, who did testify that an employee on the second platform would sometimes be endangered by lack of some of the controls available to the employee on the other platforms, admitted on cross-examination that at other times the use of those controls by the employee on the second platform could cause accidents.
Respondent was in compliance with the standard since the aerial lift had upper and lower controls. The standard does not specify what capabilities those controls should have and there is no further illumination by the record of how many levers or switches are intended by that word "controls." Rather, the evidence establishes that the industry itself cannot agree what controls should be required. [*11]
In Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975), the Court held as follows:
"A regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an employer unless read to penalize only conduct unacceptable in light of the common understanding and experience of those working in the industry. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1975). Cf. United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963); United States v. Petrillo, 332 U.S. 1, 4-8, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947). Of course if an employer is shown to have actual knowledge that a practice is hazardous, the problem of fair notice does not exist. But in the absence of actual knowledge, an objective test may satisfy due process. In this case, an appropriate test is whether a reasonably prudent man familiar with the circumstances of the industry would have protected against the hazard. (Footnote omitted). See generally National Realty & Construction Co. v. OSHRC, 160 U.S. App. D.C. 133, 489 F.2d 1257, 1265 & n. 32 (1973)." [*12]
512 F.2d at 1152. The Court vacated the citation against the employer in that case because the evidence failed to establish that the cited employer was on notice of what the standard required. 512 F.2d at 1153, 1155. In this case, the citation should be vacated because the evidence shows that not only respondent n4 but no other "reasonably prudent man familiar with the circumstances of the industry" knew what upper controls were required to promote safety. n5
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n4 As the Judge correctly found in his decision which is attached hereto as Appendix A:
"The respondent here has operated two double spinners since 1971 and at the same time of the hearing operated 6 double spinners. These devices have been operated by the respondent for some 26,478 hours without accident."
n5 Also see General Electric Co. v. OSAHRC, 540 F.2d 67, 69 (2d Cir. 1976); Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 649-650 (5th Cir. 1976).
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APPENDIX A
DECISION AND ORDER
Theresa Kalinski, Office of Solicitor, U.S. Department of Labor, [*13] for the Complainant
Frederick K. Steiner, Jr., for the Respondent
DECISION
On May 30, 1974, the Secretary of Labor issued a citation charging that on May 23, 1974, the respondent failed to comply with a safety regulation in violation of section 654(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter referred to as the Act). A notification of proposed penalty was issued to the respondent on May 30, 1974, indicating that no penalty was being proposed. A timely notice of contest was filed by the respondent, and this Commission thereby acquired jurisdiction over the subject matter under section 659 of the Act. A hearing was held in this matter in Phoenix, Arizona, on October 25, 1974.
A description of the alleged violation and the standard concerned now follows:
(a) Failure to provide a full set of platform (upper) controls on articulating boom and extensible boom platform.
(b) Failure to plainly mark present controls to show their function.
Location: Personnel platform ("secondary station") on right side of boom (observer standing at base of boom facing boom tip).
Equipment I.D.: Tel-E-Lect double spinner, model, COM 11k [*14] 203, Serial, 20sk 140 HD, A.P.S. truck number 22119.
In violation of 29 CFR 1926.952(b)(1) Adopting 1926.556(b)(2)(ix)
1926.556 - Aerial Lifts
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(b) Specific requirements
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(2) Extensible and articulating boom platforms
* * *
(ix) Articulating boom and extensible boom platforms, primarily designed as personnel carriers, shall have both platform (upper, and lower controls. Upper controls shall be in or beside the platform within easy reach of the operator. Lower controls shall provide for overriding the upper controls. Controls shall be plainly marked as to their function. Lower level controls shall not be operated unless permission has been obtained from the employee in the lift, except in case of emergency.
1926.952 - Mechanical Equipment
* * *
(b) Aerial lifts
(1) The provisions of § 1926.556, Subpart N of this part, shall apply to the utilization of aerial lifts.
The respondent has admitted in its answer that it is an employer engaged in a business affecting commerce within the meaning of the Act.
The respondent here is a public utility which is engaged in the generation, transmission, and sale of electric power primarily in the State of Arizona. As part [*15] of its regular activities, it erects, maintains, and repairs power transmission lines. In order to accomplish these tasks, the respondent has work crews that work with fairly sophisticated equipment. One such piece of equipment is the Tel-E-Lect Commander Two with double spinners which is referred to as the double spinners.
There presently exists seven double spinners. In addition, some 30 single spinners are operated in the Phoenix area. All in all, there are between 50 and 100 spinners in the country. The respondent here has operated two double spinners since 1971 and at the same time of the hearing operated 6 double spinners. These devices have been operated by the respondent for some 26,478 hours without accident.
On May 23, 1974, the respondent had its employees operating the double spinner in question at its worksite in Phoenix, Arizona. The double spinner is a truckmounted articulating boom and extension boom platform with a lifting or hoisting apparatus. It has two arms ending with a personnel platform on each and has a lifting device. The double spinner concerned herein was used to lift employees who were to perform work on power transmission poles and lines. [*16] The device was also used to lift equipment and materials.
Of the two personnel platforms of the double spinner concerned herein, one platform, which is referred to as the main platform, has a full set of upper controls. These upper controls include boom vertical lift control, boom horizontal rotation control, platform brake, swinger arm trolley for both swinger arms, winch control, dump valve, horizontal movement control, and swinger arm vertical movement control.
The order personnel platform is referred to as the secondary platform. Its upper controls include swinger arm horizontal movement control, swinger arm vertical movement control, dump valve and platform brake. It does not have an independent swinger arm trolley control, boom vertical lift control, boom horizontal rotation control or a winch control.
The issues concern the alleged lack of upper controls on the secondary personnel platform. That portion of the citation concerning the failure to plainly mark the present controls to show their function was admitted in the notice of contest and is not in issue here.
The hazard results from the inability of the employee in the secondary platform to extricate the platform [*17] from a dangerous position in regard to the transmission lines and poles when that employee has a better view of the situation than someone operating the lower controls.
The standard indicates that aerial lifts not primarily designed as personnel carriers are exempt from the requirement for upper controls. It is the respondent's position that the double spinner was primarily designed as a digger-derrick and, therefore, was not primarily designed as a personnel carrier and is exempt from the enforcement of the standard.
The evidence establishes that the equipment concerned was manufactured by Tel-E-Lect, Inc., They manufacture digger-derricks and crane type equipment. Mr. Wendell E. Wilson, the Director for Engineering for Tel-E-Lect, indicated that a digger-derrick is a crane that will lift loads and has an attachment that can be used in digging holes to set poles. The term "derrick" was first used for this equipment when it was mounted on a tripod. It is inferred that the derrick was then primarily designed to lift heavy loads of materials and equipment as opposed to lifting of human beings. As the equipment evolved, additional designing was apparently needed that eventually [*18] developed the devices to a point where they contained two aerial platforms mounted on a truck bed whose primary function was to safely lift personnel.
Mr. Wilson gave as an example of a derrick crane that was not primarily designed as a personnel carrier, a derrick crane to which a basket could be attached to hold a man. In that case, there would be no upper controls in the basket but only lower controls, which meant that the position of the basket with the man would be completely controlled outside of the basket.
It is quite clear that while the device concerned was initially designed solely for lifting loads of materials and equipment, which was its primary function, additional designing was added to transform that function to the primary function of lifting personnel safely. Lifting personnel is a form of carrying personnel. It is, therefore, concluded that the device was not initially designed to be a personnel carrier. When lifting personnel became its primary function, the additional designing put into the device to fulfill that function became its primary design. Therefore, respondent's argument fails.
The letter of John A. Proctor, Chief, Office of Standards Development [*19] of the Occupational Safety and Health Administration (Exhibit R-1) answers an inquiry that is not in evidence, therefore, there is some doubt as to the meaning of the assertions made in Mr. Proctor's letter. The letter refers to digger-derricks that are designed primarily to perform functions other than those as personnel carriers. From Mr. Wilson's testimony, it is inferred that there are many types of devices known as digger-derricks. The letter does not indicate that Mr. Proctor considered the double spinner was primarily designed for functions other than as personnel carriers. The August 13, 1973, letter (Exhibit R-2) fails to be persuasive for similar reasons. It is noted that Mr. Wilson in his testimony indicated the inquiry that precipitated the response in Exhibit R-2 did not specifically concern the Commander Two Series, "but the element of digger-derricks specifically, which would have taken into consideration our entire digger line." Therefore, the letters in question failed to indicate that the complainant had previously determined that the device concerned herein and other double spinners were not primarily designed as personnel carriers or that these devices were [*20] exempted from the operation of the standard concerned. These letters do not grant a variance.
The respondent next argues that the device in question has both upper and lower controls and, therefore, meets the requirements of the standard. What the respondent appears to be referring to is the fact that the main platform has a complete set of upper controls. However, the standard would require that each platform have a complete set of upper controls so that each platform operator could either avoid or extricate his platform from a hazardous situation. The fact that the main platform here has a complete set of upper controls does not meet the standard's requirement that the secondary platform also have a complete set of upper controls.
The respondent next argues that the standards do not require that the upper and lower controls be identical. This is correct in that the standard requires that the lower controls shall provide for overriding the upper controls. This point having been established, the respondent fails to indicate where this excuses the respondent from having a full set of upper controls in the secondary platform.
Next, the respondent argues the standard does not [*21] specify what controls are required and the phrase, "a full set of platform (upper) controls, "is so indefinite as to be unenforceable. To illustrate this point, the respondent asked the various witnesses many questions concerning controls of the truck's ignition, steering wheel, brakes, hydraulic power takeoff, hydraulic outrigger controls, air hose connection, trailer hitch, trailer electrical connection, and other items. While these were controlled items concerned in the operation of the truck on which the spinner sat, obviously they are not the platform controls referred to in the standard. Therefore, the requested findings concerning these items are rejected as being irrelevant to the issues at hand.
The upper controls concerned herein are those previously stated controls found in the main platform that were not in the secondary platform. The evidence establishes that the controls that are required are not vague and the respondent was aware of them as they existed in the main platform. Therefore, his argument fails.
As the greater weight of the credible evidence presented establishes the violation as alleged, the citation will be affirmed.
ORDER
It is hereby ORDERED [*22] that the citation herein be and is hereby AFFIRMED.
Erwin L. Stuller, Judge
Dated: August 6, 1975