Williams Enterprises, Inc. (Commission decision, January 16, 1979)

Plain-English summary

A judge vacated three citation items against Williams Enterprises for want of
employee exposure. The Commission reversed him on all three. Chairman Cleary
wrote; Commissioner Barnako dissented and would have affirmed the judge
throughout. The case is worth reading for the access question, which the two
opinions frame as cleanly opposed tests.

The crane. A mobile truck-mounted crane was moved into position, its
outriggers extended, and then leveled. The oiler worked the outrigger controls about five feet in front of the right forward outrigger while the operator rotated the superstructure, usually a quarter turn at a time, in close coordination. Leveling normally took ten to thirty minutes. No other employee came closer than ten to twenty feet, and those employees were mostly standing and waiting for leveling to finish, on the same side as the oiler. Rope barricades went up immediately after leveling ended. Nobody entered the swing radius. The standard, 29 C.F.R. § 1926.550(a)(9), requires accessible areas within the swing radius of the rear of the rotating superstructure to be barricaded so an employee cannot be struck or crushed.

Three questions followed, and the Commission answered each against the company.

Does the standard even apply during leveling? The Commission had asked for
supplemental briefs on whether the phrase "either permanently or temporarily
mounted" mattered. It held the phrase does no work here. "Mounted" describes how the rotating superstructure is attached to a base, which might be a truck, a barge, a railroad car or another platform. It says nothing about whether that base is ready to lift or has been leveled, and leveling is not a condition precedent to being mounted. Other provisions in § 1926.550 use "mounted" the same way. Since the standard aims at the rear of a rotating superstructure, it is irrelevant whether the crane is lifting so long as the superstructure can rotate. There is no leveling exemption.

Was the standard complied with? No. The Commission had already held that this standard requires a physical barricade, and that using a flagman or the oiler to keep people clear is not what the standard contemplates. The rope went up only after leveling finished, and the company never argued it could not have gone up earlier. So the swing radius was unprotected for the whole operation.

Were employees exposed? This is the heart of it. The judge had held that where employees are shown not to have entered the zone of danger, proving mere accessibility is not enough. The Commission held access was shown. A significant number of employees stood ten to twenty feet away and the oiler was within five feet of a rotating superstructure. Those employees were largely free to move about because their work had not started, and with no physical barricade one of them might have wandered in. The Commission inferred that the company foresaw exactly this, from the fact that keeping employees clear during leveling was among the oiler's specific duties.

Then the sentence that carries the holding: the likelihood of an employee moving into the swing radius, judged as of the time of the violation, is not diminished by the after-the-fact observation that no one did. Such hindsight reasoning would impede rather than further the Act's accident prevention purpose, and as a practical matter it would nullify the physical barricade requirement altogether. If the barricade is only required where somebody turns out to have crossed the line, it is never required in advance, which is the only time it could work.

The violation was affirmed as serious. The penalty was cut from the proposed $650 to $325 for low gravity: the condition lasted only a short time, some precautions were taken even though no barricade was erected, and the probability of an accident was therefore low.

The gas cylinders. Two nonserious items concerned the same three compressed gas cylinders, charged under § 1926.350(a)(1), which requires cylinders secured upright, and § 1926.350(a)(9), which requires valve protection caps in place and secured. The terms of both standards were plainly unmet: one cylinder was uncapped and none of the three was secured. Whether they were full, partly full or empty was unknown, beyond testimony that one was an "air" cylinder. The nearest employee was about twenty-five feet from the uncapped one and forty to fifty feet from the other two. The cylinders belonged to someone else, and the company's employees had no reason to go near them. The judge vacated for lack of exposure.

The Commission applied a presumption borrowed from its general industry case law, that cylinders are taken to be wholly or partly full, or to contain residual gas, and to present a hazard. The general industry cylinder standards are the equivalents of the construction ones, so the presumption carries across, and nothing in this record rebutted it. Because gas cylinders present a dynamic hazard that can explode or be propelled with great force through a work area, and because there was no evidence these employees were otherwise protected from that missile hazard, exposure was shown even though nobody worked immediately adjacent to the cylinders. The Secretary had proposed no penalty, so the items were affirmed with none assessed.

One more wrinkle. Williams did not own the cylinders, and after this case was
tried the Commission changed its law to let subcontractors raise certain
affirmative defenses for hazards they did not create. So the nonserious citation was affirmed only conditionally, with ten days for the company to move for a remand and put in evidence on those defenses.

Barnako's dissent. He agreed the crane standard applied but would have found no violation, because he applies a different access test, the one he set out in
Gilles & Cotting: absent an admission, the Secretary must establish by
evidentiary facts that it is reasonably predictable that employees will be, are, or have been in a zone of danger while in the course of their assigned duties, their personal comfort activities, or their means of getting to and from their work stations. On that test the other employees were no closer than ten feet and had no work reason to come closer, with the record silent as to any other reason. The oiler, though five feet away, was performing a specific task at a fixed location in close cooperation with the operator, so it was not reasonably predictable that he would enter the swing radius. The distance between the two opinions is the distance between "somebody free to move about might drift in" and "point to a duty or an errand that would take them in."

On the cylinders he agreed the standards were violated but found exposure
unproven for a different and more concrete reason: the Secretary never
established how far the zone of danger extended. Granting that a knocked-over
cylinder can become a missile, no evidence showed how far one could travel, so the record cannot say whether employees standing forty feet off were inside the zone or outside it. He also recorded a factual disagreement with the majority in a footnote, saying the twenty-five foot figure the majority used for the distance from an employee to the nearest cylinder is actually the distance from a cylinder to the crane, and that on the credited and unrebutted testimony of the superintendent the employees were at least forty feet from any cylinder.

Notes on the released text. The ordering paragraph affirms the crane citation "and the penalty proposed therefor," although the opinion two pages earlier reduced the penalty from the proposed $650 to $325. The order also renders one subsection as "1926.350(a)(i)" with a roman numeral. A citation to a Supreme Court case appears as "Schley v. Pullman's Palace Can Co., 120 U.S. 575, 578 (1986)," where the company was Pullman's Palace Car Co. and a decision at 120 U.S. cannot be from 1986. Gilles & Cotting is given a 1976-77 CCH volume in the majority and a 1975-76 volume in the dissent. A footnote in the majority opinion says "in my view" in an opinion written for the Commission. And the text carries the usual small slips: "none of respondent's employee," "the nature of he contents," "is should require," "in should provide," "cleary indicate." All are reproduced as released.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(9), barricading a crane's swing
  radius (serious); 29 C.F.R. § 1926.350(a)(1) and § 1926.350(a)(9), compressed gas cylinders secured upright and valve caps in place (nonserious)
• Outcome: Affirmed. The judge had vacated all three items; the Commission
  reversed him and affirmed all three, reducing the crane penalty from the
  proposed $650 to $325 and assessing none on the cylinders.
• Key point: Exposure is judged as of the time of the violation, so the fact
  that no employee actually entered the unprotected swing radius does not reduce the likelihood that one would have. The contrary rule would nullify the physical barricade requirement, since a barricade is only useful before anyone crosses the line. Assigning the oiler to keep people clear is not a barricade, and is evidence the employer foresaw the hazard.
• Also held: "Either permanently or temporarily mounted" describes how the
  superstructure attaches to its base, not whether the machine is ready to lift, so there is no exemption for the leveling operation. A vagueness defense first raised in a supplemental brief is untimely, not being jurisdictional.
• Procedural posture: The nonserious citation is affirmed conditionally, with
  ten days to move for remand on the subcontractor affirmative defenses the
  Commission recognized after this case was tried.
• Note: Directed for review by former Commissioner Moran with no issue
  specified, then narrowed by the Secretary's granted petition to the access
  question.

Full text (OSHRC public release)

Docket No. 14748

WILLIAMS ENTERPRISES, INC.
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OSHRC Docket No. 14748

Occupational Safety and Health Review Commission

January 16, 1979

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

James Brent Clarke, Jr., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. [hereinafter "the Act"].
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On March 10, 1976, the case was directed for review by former Commissioner Moran, but no issue was specified.
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Shortly thereafter, Chairman Cleary granted the petition for discretionary review filed by the Secretary of Labor with respect to the vacating by the Judge of one serious citation and a two-item nonserious citation.
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The issues on review were whether respondent's employees were shown to have had access to the hazards contemplated by the cited standards.

The serious citation alleged a failure to comply with the standard at 29 CFR �
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1926.550(a)(9), which provides:

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 [*2]
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or crushed by the crane.

The nonserious citation alleged failure to comply with the standards at 29 CFR �
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1926.350(a)(1) and (9).
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The former standard provides:

Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

The latter standard reads, "Valve protection caps shall be in place and secured."

On March 17, 1977, the Commission issued a supplemental briefing order with respect to the serious citation.
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Briefs were requested on the issue of whether the phrase "either permanently or temporarily mounted" in the standard at 29 CFR �
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1926.550(a)(9) bears on the resolution of the case.
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Both parties submitted briefs.

Following the submission of supplemental briefs, the Secretary filed a motion to strike respondent's brief in response to the supplemental briefing order.
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It is asserted in the motion that respondent's supplemental brief consists largely of quotes of comments and opinions as to the meaning of the cited standard.
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The Secretary argues that these quotations, which were not in the record of the case, are out-of-court statements unilaterally offered [*3]
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by respondent that are not properly a part of the record in this case.
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We agree in part.
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The Secretary's motion is granted only to the extent that the particular sources of the opinions and comments will not be considered.
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Otherwise we consider the substance of the arguments as we would any argument offered in a party's brief.
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See Schley v. Pullman's Palace Can Co., 120 U.S. 575, 578 (1986); In Re Strubbe, 347 F.2d 217, 218 (3d Cir. 1965).

Serious Citation

Respondent was cited for failing to comply with the standard at 29 CFR �
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1926.550(a)(9) for a relatively brief period during the operation of "leveling off" a mobile truck-mounted crane. The factual circumstances surrounding the issuance of the citation are essentially undisputed.

After the crane had been moved to the location where the lifts were to be made, the outriggers were extended and the leveling operation began.
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The crane oiler leveled the crane by operating the outrigger controls while the crane operator rotated the superstructure of the crane. The outrigger controls were located about five feet to the front of the right forward outrigger. No employee of respondent actually came closer to the [*4]
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rotating superstructure during the leveling operation than the oiler. Close coordination was necessary between the oiler and the crane operator, and the crane was normally rotated about one-quarter turn at a time.
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The leveling operation normally lasted between ten and thirty minutes.

Testimony established that none of respondent's employee, apart from the oiler and crane operator, approached closer than ten to twenty feet to the crane. n1 These employees were, for the most part, watching and waiting for the leveling to be completed.
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They were positioned on the same side of the crane as the oiler. Immediately upon completion of the leveling process, rope barricades were erected.

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n1 Testimony in this respect varies.
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The compliance officer estimated the distance to be ten to fifteen feet. Respondent's superintendent estimated fifteen to twenty feet.

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On the basis of these facts, the Judge vacated the citation.
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He found that the Secretary failed to show that respondent's employees were directly exposed to the hazard [*5]
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of the swinging crane superstructure. He further found that where respondent's employees were shown not to have entered a zone of danger, a showing of accessibility is insufficient to prove exposure.

On review, the Secretary argues that the Judge erred in concluding that accessibility to an area of hazard is insufficient to prove exposure under the cited standard because the distances between respondent's employees and the swing radius result in the risk that an employee could accidentally step into danger.
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In response to the supplemental briefing order, the Secretary argues that the phrase "either permanently or temporarily mounted" does not render the standard inapplicable during the leveling process because the term "mounted" refers to the attachment of the rotating superstructure to a base such as a truck or barge.
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Thus, it is argued that the phrase does not relate to a state of operability of the crane insofar as this case is concerned.

Respondent argues that the Judge properly resolved the case.
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None of its employees ventured into the swing radius of the crane at any time during the leveling operation.
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Moreover, respondent asserts that the record shows that its employees [*6]
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had no reason to enter the area within the swing radius during the leveling. Therefore, one could not even reasonably foresee that respondent's employees would be endangered.
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With respect to the interpretation of the standard, respondent finds the phrase could refer to whether the crane has been positioned and leveled for lifting. n2

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n2 Insofar as respondent's brief in response to the supplemental briefing order may be read as asserting a defense that the standard is unenforceably vague, the issue is raised for the first time in the supplemental brief.
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In that the issue is not jurisdictional in nature, it is not timely raised.
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Puterbaugh Enterprises, Inc., 74 OSAHRC 44/B11, 2 BNA OSHC 1030, 1973-74 CCH OSHD para. 18,158 (No. 1097, 1974).

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We find that the standard is applicable to the facts here, and agree that the phrase "either permanently or temporarily mounted" is properly interpreted as the Secretary argues in his brief.
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The term "mounted" refers to the attachment of the rotating superstructure to a base [*7]
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of some sort.
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The base might be a truck, barge, railroad car, or other platform. The phrase does not refer to whether the platform on which the rotating superstructure is mounted is ready for the lifting operation.
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Nor does it refer to whether the platform on which the crane is mounted has been leveled. Leveling is not a condition precedent to temporary or permanent mounting.
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The standard is aimed at protecting employees from the rear of the rotating superstructure, and it is irrelevant whether the crane is lifting as long as the superstructure can rotate.
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This reading is also consistent with the wording of other standards within �
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1926.550. n3 Thus, we conclude that the standard at issue does not contain an exemption applicable to the leveling operation.

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n3 See, e. g., 29 CFR �
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1926.550(a)(18) ("Sideboom cranes mounted on wheel or crawler tractors"); 29 CFR �
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1926.550(c)(4) ("[hammerhead tower] cranes mounted on rail tracks"); 29 CFR �
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1926.550(f)(1) ("Mobile cranes mounted on barges").

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Further, we
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[*8]
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find that respondent has not complied with the terms of the cited standard.
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The Commission has previously held that the standard at 29 CFR �
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1926.550(a)(9) requires the erection of a physical barricade. The use of a flagman or the oiler to keep employees clear of the swinging superstructure is not within the contemplation of the standard.
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Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD para. 21,269 (Nos. 5692 & 7329, 1976).
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It is clear on the record that the rope barricade was not installed until after the completion of the leveling operation.
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Respondent does not argue that the barrier could not have been installed earlier.
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Thus, the crane swing radius was unprotected throughout the leveling operation.

The only remaining question is whether respondent's employees were shown to have had access to the unprotected swing radius of the crane. We conclude that access was shown in this case.
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A significant number of respondent's employees were as close as ten to twenty feet from the crane itself, and the oiler was within five feet while the crane was rotating. The employees were largely free to move about as they were not yet occupied by their work,
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[*9]
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and in the absence of a physical barricade, one might have inadvertently come within the swing radius of the crane. It can be inferred that respondent foresaw the possibility from the fact that the specific duties of the oiler included the keeping of employees clear of the crane during the leveling operation.
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Moreover, the likelihood of an employee moving into the swing radius of the crane, when viewed at the time of the violation, is not diminished by the post hoc observation that no one did enter the area of danger.
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Such after-the-fact analysis would impede, rather than further, the congressional goal of accident prevention embodied in the Act.
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See Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974). To find otherwise would, as a practical matter, nullify the physical barricade requirement as set forth in Concrete Constr. Co., supra. We, therefore, find that the cited hazard was accessible to respondent's employees.
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Cf. Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1976-77 CCH OSHD para. 20,448 (No. 504, 1976).
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Accordingly, the violation should be affirmed as serious. n4

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n4 The characterization of the violation as serious is not at issue on review.

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It is our opinion, however, that a reduction in penalty from the proposed amount of $650 to $325 is appropriate.
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The reduction is warranted by the low gravity of the violation.
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The violative conditions existed only for a relatively brief period.
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Although barricades were not erected, some precautions were taken to keep employees clear of the crane. Therefore, the probability of an accident occurring was low.

Nonserious Citation

The nonserious citation involved two items, both of which referred to the same three compressed gas cylinders. The facts concerning the cylinders are also largely undisputed.
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It is clear that the terms of the two standards were not met.
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One cylinder was uncapped. None of the three was secured as is required by the explicit terms of the standard at 29 CFR �
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1926.350(a)(1).
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The issue is whether respondent's employees were exposed to the hazards contemplated by the standards.

It is unknown whether the cited cylinders were full, partially full, or empty.
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[*11]
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Respondent's superintendent testified that one cylinder was an "air" cylinder; the nature of he contents of the cylinders is not known otherwise.
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The closest employee was about twenty-five feet away from the uncapped cylinder. n5 The other two cylinders were forty to fifty feet from the nearest employee.
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The cylinders did not belong to respondent.
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Respondent's employees had no reason to go near the cylinders. On the basis of these facts, the Judge vacated the two items holding that respondent's employees were not shown to have been exposed to a hazard.

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n5 The record conflicts as to which cylinder contained "air".
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The resolution of the issue, however, is not necessary to the disposition of the case in my view.

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We conclude, nevertheless, that employee exposure is demonstrated by these facts.
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In the Commission decision in Huber, Hunt & Nichols, Inc. and Blount Bros. Corp., 76 OSAHRC 71/A2, 4 BNA OSHC 1406, 1976-77 CCH OSHD para. 20,837 (No. 6007, 1976), the Commission applied the presumption that cylinders [12]
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are considered to be "wholly or partly full, or contain residual gas, and present a hazard".
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The Huber case involved the standard at 29 CFR �
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1910.252(a)(2)(iv)(a).
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The standards at 29 CFR �
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1910.252 contain the general industry equivalents to the standards at �
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1926.350.
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On the basis of the reasoning in Huber, we apply the same presumption to the case at hand.
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The presumption is not rebutted on the facts here.
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As the Commission found in its decision in A. Munder & Son, Inc. and Robert Catino, Inc., 76 OSAHRC 106/A2, 4 BNA OSHC 1593, 1976-77 CCH OSHD para. 21,000 (Nos. 1858 & 1860, 1976), gas cylinders present a dynamic hazard which can explode, or be propelled with great force through a work area.
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In the absence of evidence showing that respondent's employees were otherwise protected from the potential missile hazard, we find that respondent's employees were shown to have been exposed to a potential missile hazard even though they were not working immediately adjacent to the cylinders. Cf. Gilles & Cotting, Inc., supra. However, the Secretary proposed no penalty for these violations.
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Considering the factors recited in section 17(j) of the Act (29 [13]
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U.S.C. �
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666 (i)), we affirm and assess no penalty.

Respondent, however, did not own the cylinders. Inasmuch as the Commission modified its precedent after the trial of this case allowing subcontractors to avail themselves of certain affirmative defenses, n6 we shall conditionally affirm the nonserious citation to afford respondent an opportunity to present additional evidence as to these defenses.

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n6 Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976); Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976).

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Accordingly, it is ORDERED that the citation for failure to comply with 29 CFR �
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1926.550(a)(9) and the penalty proposed therefor are affirmed.
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It is further ORDERED that the citation for failure to comply with 29 CFR �
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1926.350(a)(i) and (9) are affirmed unless respondent, within 10 days from the issuance of this decision, moves that the case be remanded for the taking of additional evidence.
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DISSENTBY:
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[*14]
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BARNAKO

DISSENT:

BARNAKO, Commissioner, Dissenting:

I would affirm the decision and order of the Judge with respect to both citations in this case.
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My reasoning follows.

Serious Citation for Violation of 29 C.F.R. �
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1926.550(a)(9)

I agree with Chairman Cleary that 29 C.F.R. �
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1926.550(a)(9) is applicable to the facts of this case, since the crane herein was permanently mounted. However, I would not find a serious violation of �
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1926.550(a)(9) in this case.
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Contrary to the majority, I find that the Secretary failed to establish employee access to the violative condition created by the unbarricaded crane. In Gilles & Cotting, 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976), I set forth the rule I would follow in determining access.
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I stated that the Secretary, absent an admission, must establish by evidentiary facts that it is reasonably predictable that employees will be, are, or have been in a zone of danger while in the course of their assigned duties, their personal comfort activities, or their means of ingress or egress to their work stations.

With respect to the employees other than the oiler, the evidence shows that they were no closer
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[*15]
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than ten feet to the swing radius of the crane, and that they had no work-related reason to go any closer during the leveling process.
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The record is silent with respect to any other reasons that would bring them closer to the crane. Therefore, I would conclude that the Secretary has failed to show that it is reasonably predictable that Respondent's employees will be, are, or have been in the zone of danger created by the crane's rotating superstructure.

With respect of the oiler, the evidence similarly fails to establish any exposure to the zone of danger based on reasonable predictability.
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Although he was located only five feet from the crane's superstructure, the oiler was performing a specific task at a fixed location, working in close cooperation with the crane operator.
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Thus, it is not reasonably predictable that the oiler would enter the swing radius during the leveling process.
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Accordingly, I would affirm the Judge's decision with respect to the citation for serious violation of 29 C.F.R. �
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1926.550(a)(9).

Non-Serious Citation for Violation of 29 C.F.R. �
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1926.350(a)(1) and 29 C.F.R. �
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1926.350(a)(9)

Although I agree with the majority that the terms of the two standards [*16]
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relating to the cylinders, 29 C.F.R. �
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1926.350(a)(1) and 29 C.F.R �
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1926.350(a)(9) were violated, I nevertheless disagree with the majority that the Secretary established employee exposure to the cited conditions.
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At the outset, I note that the Secretary did not establish the area encompassed by the zone of danger to which employees were allegedly exposed. The hazard for which Respondent was cited was that unsecured and uncapped cylinders could be knocked over, thereby causing them to explode and project like a missile. However, assuming they were knocked over, the Secretary failed to establish what distance the cylinders could travel, and therefore the record is devoid of any evidence of how far the zone of danger extended from the cylinders. n1

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n1 The Compliance Officer testified that the cylinders were within 20 feet of "collision." However he did not explain what he meant and accordingly the testimony is too ambiguous to be relevant.

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Moreover based upon the unrebutted testimony of Respondent's superintendent [*17]
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Pritchard, which was credited by the Judge, Respondent's employees were at least 40 feet from any of the cylinders and had no reason to go into the area where the cylinders were located. n2 Because the evidence fails to show that the zone of danger extended 40 feet beyond the cylinders, or that Respondent's employees would move closer to the cylinders, I would find that employee exposure to the cited conditions was not established and would affirm the Judge's decision.

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n2 The majority erroneously concludes that employees were approximately 25 feet from the nearest cylinder. The 25 foot figure represents the distance one cylinder was located from the crane. See transcript pg. 118.

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