Candler-Rusche

Plain-English summary

Candler-Rusche employees used crane rigging to ride over a 10-foot fence after unloading pile-driving tubing. The crane block contacted the boom, releasing the rigging and a 400-pound weight; one employee was killed and another sustained spinal and leg injuries. The employer argued that riding the rigging violated its work rule and was unforeseeable. The Commission found the safety program inadequate because the crane operator had not been instructed when employee riding was prohibited, and exceptions to the rule created additional confusion. It held that better training and enforcement could have prevented the conduct, affirmed the violation as serious, and assessed a $550 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(b)(2)
• Outcome: The crane-riding citation was affirmed as serious with a $550 penalty.
• Key point: A work rule did not establish unpreventable misconduct when the operator controlling the lift was not adequately instructed and the rule contained confusing exceptions.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 4675

CANDLER-RUSCHE,

���������������������������������������������
Respondent.

May 19, 1976

DECISION

BEFORE
BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO,
Chairman:

Pursuant to 29 U.S.C. Sec. 661(i), we review whether Judge
Louis J. Rubin properly modified a serious citation to find a nonserious
violation of the safety standard prescribed at 29 C.F.R. Sec. 1926.550(b)(2),
as it incorporates ANSI provision B 30.5�1968, Sec. 5�3.2.3(e) [1]
He assessed a penalty of $100. For the reasons that follow we affirm the
serious citation and assess a penalty of $550.

The facts are essentially those found by Judge Rubin. On
August 7, 1973, Respondent was engaged in construction work at a Ford Motor
Company Steel Division site in Dearborn, Michigan. Respondent�s employees had
been unloading pile driving tubing from a railroad car located on a siding
adjacent to the site. The tubing was lifted from the siding by Respondent�s
crane over a ten-foot high fence and piled at a location on the construction
site.

When the unloading was completed Respondent�s crane operator,
Henry, maneuvered the crane so that employee Horetski, while standing on the
railroad car, could have access to the crane�s rigging. Horetski fashioned a
sling out of the rigging, signaled the crane operator and was lifted out of the
car. Another employee, Wickman, who had been working on the ground by the
railroad car, grabbed onto the crane�s spreader Hooks as the rigging went by
him. The rigging was attached to a 400 pound weight (headache ball) which in
turn was attached to a block. As the crane operator started to lift the men
over the fence, the block �two-blocked� by running into the crane boom, and it
tipped. The headache ball and suspended rigging were released and fell on the
railway side of the fence. Wickmen fell and was crushed by the ball. Horetski
was thrown clear but suffered spinal and leg injuries.

Horetski and Wickmen had been transported by the crane on
three earlier occasions during the day. And, although it is disputed, Judge
Rubin determined that neither of Respondent�s two supervisors on the job site
had actual knowledge of any of these riding incidents. The record supports this
determination, and we accept the finding.

Respondent asserted in its defense that it had an enforced
work rule which prohibited employees from riding the hook or load with only two
exceptions. Supervised employees could ride the load while pile-driving to
�stick sheeting� and ride test loads. Respondent therefore requested the
citation be vacated on the basis that the incidents giving rise to this case
were unforseeable.

Judge Rubin found there was no reason to dispute the
existence of the company policy. He did note, however, that there was a
question about whether the policy was properly communicated and enforced. The
record clearly established that Respondent never instructed its crane operator
as to when it was appropriate to ride the rigging. As the Judge observed,
Respondent did not challenge the veracity of the crane operator who did testify
that he had never been told personally by anyone with responsibility as to when
it was appropriate for an employee to ride the rigging.

Accordingly, Judge Rubin refused to vacate the citation in
its entirety. He found Respondent�s safety program was inadequate because
Respondent failed to instruct its crane operator of the prohibition against
riding the load. The Judge concluded that a non-serious violation of the cited
standard had been established. On the question of whether the violation was
serious, the Judge rejected the Secretary�s contention that the two supervisors
could have known of the violation through the exercise of reasonable diligence
as �pure conjecture.�

We agree with the Judge�s finding that Respondent�s program
was inadequate. It was inadequate because Respondent failed to inform the crane
operator that employees were not to ride the crane�s rigging. It failed to
inform the one person who had control of the situation and who could have
prevented not only the incident which resulted in a fatality but all the other
riding incidents as well.

Although our decision is not predicated on it, we also would
find the program inadequate in view of Respondent�s pile driving exceptions to
stick sheeting and test loads. At the very least, the exceptions can be said to
undermine Respondent�s safety program because they can lead to confusion as to
when employees are or are not permitted to ride the rigging. In this regard we
note that Wickman had been reprimanded on two prior occasions for riding the
rigging and Horetsky understood that he could ride the rigging when
circumstances were such that there was no other way.

Under the circumstances, Respondent�s defense that the riding
incidents were unforeseeable and unpreventable must fail. Compare, Horne
Plumbing and Heating Co. v. OSHRC , 528 F.2d 564 (5th Cir. 1976) and Brennan
v. OSHRC (Alsea Lumber Company) , 511 F.2d 1139 (9th Cir. 1975).

Since we decide that Respondent�s program was inadequate, it
follows that the Judge properly determined not to dismiss the citation. He
erred, however, by determining that the violation was other than serious. The
question is, and was, whether the serious violation was foreseeable with the
exercise of reasonable diligence. The Judge apparently decided this question in
the context of whether Respondent�s supervisors could have known of the
specific incident which resulted in death and injury. But, as several Courts of
Appeals have noted:

A particular instance of hazardous employee conduct may be
considered preventable even if no employer could have detected the conduct, or
its hazardous nature, at the moment of its occurrence. . . . [where] such
conduct might have been precluded through precautions concerning the hiring,
training, and sanction of employees. Brennan v. Butler, Lime and Cement Co .,
520 F.2d 1011, 1017 (7th Cir. 1975) citing and quoting National Realty &
Construction Co., Inc. v. OSHRC , 489 F.2d 1257, 1266�67 n. 37 (D. C. Cir.
1973).

�

Also
see Horne and Alses, supra , and Ames Crane & Rental Service, Inc.
v. OSHRC , No. 75�1591 (8th Cir., April 1, 1976). Since Respondent�s program
was inadequate, the riding incidents were preventable, and Respondent could
have known of the violation. There can be no question on the facts of this case
as to the potential for death. The violation was serious.

A penalty of $550 is appropriate. The gravity of the
violation is high, as indicated by the death and serious injury. Also, the
probability of the accident was increased by the fact that there was no safety
latch on the block from which the weight ball was suspended. Respondent
deserves credit for a measure of good faith in that it has shut down unsafe
operations. And, Respondent is reasonably small, since it regularly employs
only thirty to forty-five persons. The record is silent as to whether the
Respondent has any history of previous violations.

Accordingly,
the citation for serious violation is affirmed and a penalty of $550 is
assessed. It is so ORDERED.

�

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

By: Gloria W. White

Acting Executive
Secretary

Dated: May 19, 1976

MORAN,
Commissioner, Dissenting:

This is another case where my colleagues apply their rather
bizarre review rule which, I gather, can be stated as follows:

If the trial Judge�s findings are favorable to the
Secretary of Labor they will not reweigh the evidence on review. If they are
adverse to the Secretary of Labor they will reweigh the evidence and substitute
findings favorable to the Secretary of Labor.

�

In this case, Judge Rubin was the trier of fact. After
observing the demeanor of the witnesses, evaluating their credibility and
weighing all the evidence, he correctly concluded that the Secretary failed to
prove that respondent possessed either actual or constructive knowledge of the
hazardous conduct alleged against it. He concluded that the elements of a
serious violation had not been established. 29 U.S.C. � 666(j). In order to
permit a full examination of his findings, I attach hereto as Appendix A the
full text of his decision and incorporate it by reference herein.

In case after case where Review Commission Judges have, on
the same basis, reached conclusions favorable to the Secretary, my colleagues
have asserted that they would not reweigh the evidence on which the Judges�
conclusions were based. For example, in Secretary v. Okland Construction
Company , OSAHRC Docket No. 3395, February 20, 1976, they stated:

�[I]t is the judge who as trier of fact had the opportunity
to observe the demeanor of the witnesses, evaluate their credibility, and weigh
the evidence accordingly. Since his finding is supported by the evidence, it
cannot be said that he erred. Under such circumstances, we do not believe it
appropriate to reweigh the evidence on review and substitute our view of the
evidence simply because a contrary factual finding is also possible.
Accordingly, we will adopt the judge�s decision on the merits concerning the
existence of the violation.� (Footnote omitted.)

�

As this case and others [2]
illustrate, however, they do not practice what they preach when a Judge�s
conclusion is detrimental to complainant�s case.

There is ample support in this record for the Judge�s
findings regarding inadequate proof of respondent�s knowledge of the alleged
hazard. Accordingly, those findings should be adopted by the Commission.

The record is also replete with evidence that respondent�s
employees were well-acquainted with the company�s proscription against riding
the crane except under exceptional circumstances. Although the crane operator
testified that he was not specifically told by supervisory personnel that such
riding was prohibited, it is clear that he knew that such riding was contrary
to company rules. In this respect, his testimony was as follows:

�Q. Was there any question in your mind at that time that
it was a company policy that absolutely prohibited riding on the ball except in
those exceptional circumstances that we have referred to before?�

�

�A. That is right.�

�

Obviously, the important thing is that he knew the policy and
not how he knew it. My colleagues seem to forget what the charges are in this
case. Respondent was not charged with failing to have an adequate safety
program. [3]
Nevertheless, Messrs. Barnako and Cleary have no trouble affirming the citation
on that basis contrary to the rule that:

�[A]n employer cannot be penalized for failing to correct a
condition which the citation did not fairly characterize.�

�

National
Realty and Construction Company, Inc. v. OSAHRC , 489 F.2d 1257, 1265 n. 31
(D.C. Cir. 1973).

It is also rather ironic that Mr. Barnako�s lead opinion
makes reference to one of the employer�s faults as a lack of employee training.
Despite the universal recognition (by Chief Justice Burger, the American Bar
Association and others) that a regular program of continuing legal education
for judges is essential, it was Mr. Barnako who cancelled such training
sessions which had been scheduled for all Review Commission Judges in December
1975 and May 1976. Although two such sessions annually were conducted since
this Commission began, none have been scheduled since Mr. Barnako became the
Commission�s Chairman in August 1975. Consequently, for him to base an
employer�s liability�even in part�upon the lack of an employee training program,
brings to mind the immortal words of John Selden: �Do as I say, not as I do.� [4]

Additionally, my colleagues forget that employees have some
responsibilities under the Act. The evidence shows that all of respondent�s
employees who participated in the crane riding were cognizant of the rules
prohibiting it and did so despite warnings and reprimands to the contrary.
Inasmuch as the Act requires that �[e]ach employee shall comply with . . .
orders issued pursuant� thereto, [5]
29 U.S.C. � 654(b), the Congress did not contemplate that a diligent employer
would be held accountable for willful employee misconduct as the result of
direct disobedience of standing rules regarding job safety.

There are two additional matters in this case which require
comment in the context of the erroneousness of the majority�s holding. The
first matter is the incorporation by reference of American National Standards
Institute standard B30.5�1968 in 29 C.F.R � 1926.550(b)(2). As I stated in Secretary
v. Northern Metal Company , 20 OSAHRC 869 (1975), any standard that requires
employers to ascertain its substantive requirements from sources other than the
Federal Register is not, in my opinion, reasonably available within the context
of the Act.

Secondly, I believe that the Commission�s time can better be
spent at things other than deciding whether a violation is �serious� of
�nonserious.� As I have indicated in Secretary v. California Stevedore and
Ballast Company , 4 OSAHRC 642, 647 (1973), Secretary v. Portland
Stevedoring Company , 3 OSAHRC 1077, 1079 (1973), and Secretary v.
Environmental Utilities, Inc ., OSAHRC Docket No. 3141, February 6, 1976,
there is no practical difference between �serious� and �nonserious� violations. [6]
Both may incur a maximum penalty of $1000.00, and neither has a specified
minimum. The majority are therefore adjudicating a question [7]
where no practical difference exists simply to supply some type of foundation
upon which they can base an increase in the assessed penalty. Why they go
through these motions is beyond me. Many times in the past they have sustained
penalty-increases against employers�both where there were nonserious violations
affirmed and even in cases where the Secretary of Labor himself proposed no
penalty whatsoever. Perhaps the time might have been better spent pondering the
nature of employee misconduct rather than the mechanics of adding $450 to the
penalty assessed by the Judge.

It is my conclusion that Judge Rubin correctly found that the
evidence in the instant case failed to establish that respondent had actual or
constructive knowledge of the alleged hazardous conduct. Having so found,
however, I submit that the case law required that the citation be vacated
rather than merely reducing the characterization of the alleged violation from
serious to nonserious. Since knowledge of the existence of a violation, either
actual or constructive, is also an essential element of a nonserious violation
of the Act, [8] the only correct
disposition on the record before this Commission is the entry of a finding of
�no violation.�

�

APPENDIX
A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 4675

CANDLER-RUSCHE, INC.,

���������������������������������������������
Respondent.

FINAL
ORDER DATE: June 14, 1974

DECISION AND ORDER

Appearances:

John C. Nangle, Esquire, and Karl Overman, Esquire, for the
Secretary of Labor

Douglas H. West, Esquire, and John D. Mabley, Esquire, for
Respondent

STATEMENT OF THE CASE

Louis
J. Rubin, Judge:

This is a proceeding pursuant to Section 10(c) of the
Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter
called the Act). Respondent contests the Citation and Notification of Proposed
Penalty issued by the Secretary of Labor on September 17, 1973, pursuant to
Section 9(a) of the Act.

The Citation alleged that an inspection of Respondent�s
workplace located approximately 30 feet west of Gate No. 12, Ford River Rouge
Plant near Schaeffer Road, Dearborn, Michigan disclosed that Respondent
violated Section 5(a)(2) of the Act by failing to comply with an occupational
safety and health standard promulgated by the Secretary pursuant to Section 6
thereof.

The alleged violation, abatement date and proposed penalty
are as follows:

Serious Violation

Abatement Date

Proposed Penalty

Crawler
crane operator in Respondent�s employ moved a load while two other employees
were on the load.

29
CFR 1926.550(b)(2) and ANSI B30.5�1968, Section 5�3.2.3(e)

September
19, 1973

$550

The case came on for hearing in Detroit, Michigan on February
7, 1974. No affected employee nor authorized employee representative has
asserted party status.

ISSUES

The issues to be decided are whether Respondent violated ANSI
standard B30.5�1968, Section 5�3.2.3(e) as incorporated in 29 CFR
1926.550(b)(2); and if so, whether this was a serious violation within the
meaning of Section 17(k) of the Act and what penalty is appropriate. [9]

SUMMARY AND DISCUSSION OF THE EVIDENCE

ANSI standard B30.5�1968, Section 5�3.2.3.(e) provides:

�The operator (of a crawler crane) shall not hoist, lower,
swing, or travel while anyone is on the load or hook.�

The parties have stipulated to the truth of the following
facts for the purpose of this proceeding:

Respondent, Candler-Rusche, Inc., is a Michigan corporation
whose main office is located at 30303 Beck Road, Wixom, Michigan. Respondent is
generally engaged in the construction business.

By reason of Respondent�s use of materials which originate
both within and without the State of Michigan, Respondent is engaged in a
business affecting commerce within the meaning of Section 3(5) of the
Occupational Safety and Health Act of 1970 (hereinafter the Act).

On August 7, 1973, the date of the alleged violation of the
Act, Respondent was engaged in construction operations in the near vicinity of
Gate 12 of the Ford Motor Company Steel Division, near Schaefer Road, in the
City of Dearborn, Michigan.

The incident which serves as a basis for the alleged
violation of the Act took place at approximately 11:00 a.m. on the
abovementioned date at the Respondent�s job site at the Ford Motor Company
Steel Division.

At the time of incident in question, certain employees of the
Respondent had just completed unloading pile driving pipe to be used by
Respondent in its construction operations at the Ford job site. The unloading
operation itself had consisted of attaching hooks and rigging to the various
lengths of pipe being unloaded. The pipe was then hoisted by a crawler crane
from a gondola railroad car, which was parked on a railroad siding at
Respondent�s job site, over a 10-foot barbed wire fence, separating the
Respondent�s job site from the railroad siding, and was then lowered to the
ground and piled at a point within Respondent�s job site.

Immediately prior to the incident in question, one of
Respondent�s employees, Edward J. Horetski, was standing in the empty gondola
railroad car. Another of Respondent�s employees, Jeffrey Wickman, was engaged
in collecting metal banding and scrap on the ground next to the gondola
railroad car. Mr. Harold Henry, also an employee of Respondent, who had been
the crane operator during the unloading operation, maneuvered the crane into a
position which enabled Edward Horetski, who was still standing in the railroad
car, to have access to the crane rigging which had been used in the completed
unloading operation (See Exhibit A). After fashioning a sling out of part of
the crane rigging, Mr. Horetski signalled the crane operator and was lifted out
of the railroad car. As the rigging passed by Jeffrey Wichman, he grabbed onto
the spreader hooks which had been used in the unloading operation. The crane
operator then began to hoist the men over the fence, with Edward Horetski
standing on the wire rope spreader (sling) and Jeffrey Wickman hanging by his
hands from the spreader hooks.

While the crane was attempting to hoist the two men over the
fence, the block attached to the weight ball (or headache ball) �two-blocked�
by running onto the end of the crane boom. This action caused the block
attached to the weight ball to tip in such a manner as to release the weight
ball, and the rigging attached thereto upon which the two men were riding,
causing the men, the rigging and the weight ball to fall to the ground on the
same side of the fence as the siding upon which the unloaded railroad car was
located. Edward Horetski was thrown clear of the falling rigging and sustained
a fracture of the leg and injury to his spine. Jeffrey Wickman fell directly
beneath the weight ball and was killed by the force thereof as it landed upon
him.� (Exhibit S�2)

����������� In addition to the above
stipulation, there is no real dispute about the following pertinent facts.
Respondent had eight employees on the work site at the time of the accident.
Ronald LaJoyce, Jeffrey Wickman�s brother-in-law, company superintendent;
Robert Davis, foreman; Stillman Eye and John Burger, welders; Harold Henry,
crane operator; William Langenburg, Edward Horetsky and Jeffrey Wickman,
unloading crew. Jeffrey Wickman and Edward Horetsky had been lifted by the
crane across the fence on three occasions earlier that morning. They first
crossed over in this fashion when they commenced their day�s work shortly after
8 a.m., and then going to and from their coffee break.

Respondent asserts in its defense that it has a work rule
forbidding employees from riding the hook or load, that it enforced this work
rule, that the employees knew the work rule, and that in direct contravention
of company policy they endangered their own safety in a manner that was not
known to Respondent and unforeseeable. Respondent�s witnesses testified that it
is contrary to company policy to ride the hook or load with two well-defined
exceptions relating to pile driving, �sticking sheeting� and �testing a load.�
The exceptions were always performed under close supervision and adequate
safety precautions. There is no reason to dispute the existence of the company
policy. The question to be resolved is whether the policy was properly
communicated and enforced.

LaJoyce testified that he gave explicit instructions to
Wickman, Langenburg and Horetsky concerning the company policy. Davis testified
that he gave similar instructions to the company employees every Monday
morning. The record shows that Wickman had been reprimanded on two prior
occasions for the same offense which resulted in his death�first in 1970 and
again in the latter part of 1972. There is no question that Wickman knew and
understood the company policy. However, Horetsky�s understanding was that it
was permissible to ride the crane when circumstances are such that there is no
other way. Horetsky decided that he was compelled to ride the crane since the
alternative was to walk through an opening in the fence, a distance of 365
feet. He had not been told that this was contrary to company policy. Langenburg
testified he had never heard LaJoyce or Davis give instructions concerning
riding the hook or load. Henry was employed by Respondent approximately six
weeks at the time of the accident. Henry testified that he was never told
personally be anyone in responsibility as to when it was appropriate for an
employee to ride the rigging. However, as a crane operator, he knew �You are
not supposed to ride a ball at any time unless absolutely necessary.�

In resolving this conflict, it is noted that LaJoyce does not
allege that he gave specific instructions to the crane operator and Davis does
not identify the employees to whom he talked concerning company policy.
Assuming that Langenburg and Horetsky were told specifically and clearly about
the company rule, which they deny, the weak link in Respondent�s case is Henry,
a key figure and participant. The interest and veracity of Henry has not been
challenged by Respondent.

Brennan v. Occupational Safety and Health Review
Commission (Gerosa, Incorporated ) 491 F2d 1340 (2d Cir. 1974), sets forth
the obligation of an employer under the Act. The Court there observed that the
Act:

�has been called �the most revolutionary piece of �labor�
legislation since the National Labor Relations Act� . . . The dramatic
legislative history of the Act demonstrates that Congress regarded it as an
important piece of remedial legislation, designed to reduce �work related
injuries and illnesses,� which cause �ever increasing human misery and economic
loss.� S.Rep. No. 91�1282, 91st Cong., 2d Sess. (1970), quoted at 1970 U.S.
Code Cong. and Admin. News, p. 5177. . . . Congress hoped to achieve its
objective of preventing accidents by encouraging employers �to institute new
and to perfect existing programs for providing safe and healthful working
conditions.� 29 U.S.C. � 651(b)(1).�

�

In the case cited above, the court held that the term
�designate� requires �specific and positive action� by an employer to inform an
employee of the existence and nature of his inspection duties. A fortiori,
where the standard specifically prohibits the operation of a crane while anyone
is on the hook or load, a tacit understanding of a work rule is not enough.
Only if the employee is explicitly informed that he is charged with complying
with the standard and with company policy is there any assurance that the
employee will know his responsibility and take it seriously.

The evidence of record may be questionable as to the
instructions given to Horetsky. However, it is not necessary to decide whether
Horetsky and Wickman were culpable. In view of the purpose of the statute to
set new standards of industrial safety, common law defenses such as assumption
of risk or contributory negligence will not exculpate an employer. It is clear
that Henry had no more than a tacit understanding of his responsibilities. It
is Respondent�s failure to specifically inform Henry of the prohibition against
riding the load or hook which provides the basis for finding a violation.

SERIOUS VIOLATION

Section 17(k) of the Act provides that

a serious violation shall be deemed to exist at a place of
employment if there is a substantial probability that death or serious physical
harm could result from a condition which exists, or from one or more practices,
means, methods, operations, or processes which have been adopted or are in use,
in such place of employment unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the violation.

�

The probability that death or serious physical harm could
result from the employees� activities in riding the crane on the day of the
accident is self-evident. Respondent readily admits to this probability.
However, a serious violation is not established if the employer did not, and
could not with the exercise of reasonable diligence, know of the presence of
the violation.

LaJoyce and Davis were the two supervisors on the jobsite. The
evidence is conflicting and inconclusive as to whether they observed Wickman
and Horetsky riding the crane at the time of the accident. If they did, there
is no indication that they could have stopped the movement of the crane. Thus,
it is not the circumstance of the accident that is controlling but whether the
supervisory personnel had prior knowledge and condoned the practice.

The uncontradicted testimony of LaJoyce is that he was
working in the office trailer at the time the men first rode the crane in the
morning. He was not on the site during the coffee break. Therefore, it cannot
be held that LaJoyce knew or with the exercise of reasonable diligence could
have known of the violation. Davis was on the site and worked with the men all
that morning. None of the witnesses could testify that Davis saw the men riding
the crane either when they first reported for work or during the coffee break.
Davis denies such knowledge. Although the Secretary contends that with the
exercise of reasonable diligence Davis could have know of the violation, this
assertion is pure conjecture and not supported by evidence of lack of
diligence.

One further matter warrants discussion. The Secretary
contends that the company policy of allowing its employees to ride the crane
for the purpose of �sticking sheeting� and �testing a load� is contrary to the
standard and blurred any work rule with respect to riding the hook or load. No
decision is here made as to whether these two activities are in violation of
the standard. Respondent�s testimony�that they are well-defined exceptions to
company policy and performed under close supervision and adequate safety
precautions clearly distinguish the exceptions from the violation in this case.
Culpability in the instant case cannot be imputed thereby.

PENALTY

In assessing the proposed penalty, the Secretary considered
the criteria set forth in Section 17(j). Computation started with $1,000 for a
serious violation, adjusted the maximum of 20 percent for good faith, the
maximum of 20 percent for history of previous violations, and 5 percent for
size, reducing the proposed penalty to $550. Since the evidence does not
establish a serious violation, the proposed amount is not appropriate. It is
held that the gravity of the violation is high since death or serious injury
could probably result from an accident. However, the incidence is considered to
be low since there is no record of previous accident from this type of activity
involving Respondent�s employees. The evidence further shows that Respondent
has shut down unsafe operations, has taken preventative safety measures in the
past, and the company has an excellent reputation for safety. With this
background of good faith, a penalty of $100 is deemed to be appropriate.

FINDINGS OF FACT

1. Respondent, Candler-Rusche, Inc., is a Michigan
   corporation, engaged in the construction business.

2. Materials used by Respondent originate outside the State
   of Michigan

3. On August 7, 1973, Respondent was engaged in construction
   operations approximately 30 feet west of Gate No. 12, Ford River Rouge Plant
   near Schaeffer Road, Dearborn, Michigan.

4. On August 7, 1973 at the above worksite, a crawler crane
   operated by one of Respondent�s employees lifted two of Respondent�s employees
   while they were suspended from the rigging or hook.

5. The crane operator had not been given specific
   instructions by Respondent prohibiting the operation of the crane while anyone
   is on the load or hook.

6. The activity described in (4) is one wherein there is a
   substantial probability that death or serious physical harm could, and in fact
   did, result.

7. Respondent did not know nor, with the exercise of
   reasonable diligence, could have known of the presence of the violation.

CONCLUSIONS OF LAW

1. Respondent is and, at all times relevant herein, was an
   employer engaged in a business affecting commerce within the meaning of Section
   3 (5) of the Act.

2. The Occupational Safety and Health Review Commission has
   jurisdiction of the parties and subject matter herein pursuant to Section 10(c)
   of the Act.

3. On August 7, 1973, Respondent violated Section 5(a)(2) of
   the Act by its non-compliance with 29 CFR 1926.550(b)(2) which incorporates
   ANSI B30.5�1968, Section 5�3.2.3(e).

4. Since the requisite knowledge set forth in Section 17(k)
   of the Act is not shown to be present, a serious violation is not established.

ORDER

1. The Citation is affirmed except that the charge of a
   serious violation is modified to that of a non-serious violation.

2. The proposed penalty in the amount of $550 is reduced to $100.

�

Louis J. Rubin

Judge, OSHRC

Dated: May 15, 1974

[1]
The standard reads:

All crawler, truck, or locomotive cranes in use shall meet
the applicable requirements for design, inspection, construction, testing,
maintenance and operation as prescribed in the ANSI B30.5�1968, Safety Code for
Crawler, Locomotive and Truck Cranes.

The incorporated
provision reads:

The operator shall not hoist, lower, swing, or travel while
anyone is on the load or hook.

[2]
See, e.g., Secretary v. Slyter Chair, Inc ., 9 OSAHRC Docket No. 1263,
April 8, 1976; Secretary v. Allis-Chalmers Corp. , 20 OSAHRC 546 (1975).

[3]
My colleagues in their dicta also conveniently disregard the fact that the
exceptions to the respondent�s crane riding policy is not an issue in this case.
Moreover, they point to nothing in the record which contradicts the Judge�s
determination that �the well-defined exceptions to company policy [were]
performed under close supervision and adequate safety precautions.�

[4] Table Talk (1689).

[5]
Senator Williams commented on this provisions as follows:

�. . . I might point out, too, that in
order to make clear that achieving the goals of a safe workplace is not a
one-sided matter, we added in committee a provision placing upon employees, as
well as employers, the obligation to comply with all applicable requirements
under the Act.�

116 Cong. Rec. (Senate)
18250 (1970).

[6]
The 9th Circuit Court of Appeals reached the same conclusion:

Considering, as we must, the statute as a whole and 29
U.S.C. � 666 in its entirety, we are convinced that Congress intended the same
meaning for the word �violation� wherever it appears. Section (c), containing
the only reference to nonserious violations, must be read in conjunction with
Section (b). Both relate to employers who have merely �received a citation. Neither
defines a violation. The sole difference between sections (b) and (c) lies in
the mandatory assessment of penalty for serious violations and the permissive
assessment for nonserious violations. Brennan v. OSAHRC and Raymond Hendrix
d/b/a Alsea Lumber Company , 511 F.2d 1139, 1144 (9th Cir. 1975).

[7]
It was directed for review by Commissioner Cleary.

[8]
Horne Plumbing and Heating Company v. OSAHRC , 528 F.2d 564 (5th Cir.
1975 ); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company,
supra .

[9]
Respondent�s Answer affirmatively alleged that the standard cited was invalid
being vague, ambiguous, arbitrary, unreasonable and impossible of performance.
Respondent reasserted this defense in a Statement of Position dated February 5,
1974, indicating that argument will be fully set forth in its brief. The brief
is silent as to this matter. It is noted that the Citation and the Complaint
notified Respondent of the place of employment, the hazard and the nature of
the violation. The charge provided fair notice and complied with the dictates
of due process. Since no evidence or argument has been of offered, the defense
of vagueness, etc. is not considered to be an issue.