Lisbon Contractors, Inc.

Plain-English summary

Lisbon Contractors used a crawler backhoe to lift a trench box without barricading the machine's rotating superstructure. OSHA cited the crane swing-radius standard on the theory that using the backhoe for lifting transformed it into a crane. The Commission held that the standard and its incorporated ANSI code regulated machines configured as cranes, and that the ANSI scope expressly excluded backhoes. It rejected prior precedent that applied the rule based solely on the lifting function and vacated the citation. The Commission also noted that stretching the standard beyond its language would deny employers fair notice. Commissioner Cleary agreed that Lisbon lacked notice under the law existing at the time but dissented from the broader holding that backhoes used as cranes were outside the standard.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(9)
• Outcome: Backhoe swing-radius citation vacated.
• Key point: The Commission interpreted the crane standard by the equipment's configuration and incorporated definitions, not merely by whether a backhoe happened to perform a lifting task.

Full text (OSHRC public release)

Docket No. 80-0097

SECRETARY OF LABOR,

Complainant,

v.

LISBON CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 80-0097

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

A citation item alleging a failure to barricade the rotating superstructure
of a backhoe in accordance with 29 C.F.R. � 1926.550(a)(9) was issued to Lisbon
Contractors.  The standard requires that "accessible areas within the swing
radius of the rear of the rotating superstructure of a crane . . . shall be barricaded . .
. ."[[1]]  Administrative Law Judge William E. Brennan vacated the item on the
ground that the employer did not have fair notice that the standard applied.  We
affirm the judge's disposition, but for different reasons.

The facts are not in dispute.  Lisbon was using a Caterpillar 235
crawler-type backhoe to dig a trench for a sewer line in Pleasant Gap, Pennsylvania.
  The backhoe's rotating superstructure was not guarded or barricaded.  The
compliance officer who conducted the inspection testified that he observed the backhoe
lifting a steel trench box and lowering it into the open trench.

The Secretary argued before Judge Brennan that the Commission decisions in
Gil Haugan, 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD � 24,105 (Nos. 76-1512 &
76-1513, 1979), and Tri-City Construction Co ., 80 OSAHRC 9/F12, 7 BNA OSHC 2189,
1980 CCH OSHD � 24,267 (No. 76-4094, 1980), required Lisbon to barricade the rotating
superstructure of its backhoe in accordance with section 1926.550(a)(9).  The
Secretary argued that under these cases, the crane barricading standard applies if the
machine in question is used to perform lifting functions usually performed by cranes or
derricks.  Under this theory, the function of lifting and moving the trench box
transformed the backhoe into a "crane" for purposes of the standard.

Lisbon argued that section 1926.550(a)(9) did not apply because its backhoe
is not a crane.  Lisbon also argued that even if the standard did apply, it did not
have fair notice of this interpretation of the standard at the time of the violation.
  At the time of the alleged violation, Commission decisions had held that the crane
barricading standard did not apply to backhoes.  See Felton Construction
Co ., 76 OSAHRC 136/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD � 21,258 (No. 6759, 1976); see
also Warner Brothers, Inc. , 76 OSAHRC 138/D7, 4 BNA OSHC 1841,
1976-77 CCH OSHD � 21,257 (No. 8841, 1976).  It was only after the issuance of the
citation that Felton was overruled in Gil Haugan .  Tri-City was issued
six weeks later.

The judge agreed that Lisbon lacked fair notice that the standard applied and
vacated the citation item.  He stated that "there is no conceivable way this
[employer] could have anticipated the Commission's change in its precedent or have been on
notice of the applicability of the cited standard to its backhoe."  The
Secretary's petition for discretionary review was granted.  On review, the Secretary
no longer disputes Lisbon's claim that it lacked fair notice of the standard's
applicability.  Instead, he argues that the citation should be affirmed so that
Lisbon is required in the future to comply with the standard as it was interpreted in Gil
Haugan and Tri-City .  Lisbon vigorously argues, however, that the standard
does not apply, that Commission precedent has created numerous practical difficulties
unforeseen and unintended by the drafters of the crane standard, and that the Commission
should re- examine its precedent in light of material not previously considered.  We
therefore conclude that disposition of this case on fair notice grounds would not address
the central concern of both parties--the applicability of the standard.

The primary question is whether this backhoe is a "crane" within the meaning of
section 1926.550.  We turn first to the language of section 1926.550.  That
section lacks a scope and application provision stating the machines or operations it
governs.  It is, however, entitled "Cranes and Derricks."  The
specific provision before us, section 1926.550(a)(9), mentions only "cranes."
  Despite the importance of the term, it is not defined anywhere in section 1926.550,
and Commission decisions attempting to give it a meaning have been inconsistent and
divided.  Felton held that a machine with a backhoe attachment used to move a
trench box and lower pipe sections was not a "crane."  Felton was
reaffirmed by Warner Brothers , which involved what was said to be a
"hybrid" machine.  Gil Haugan later overruled Felton , and was
shortly followed by Tri-City .  The latter two cases concerned a modified farm
tractor and a backhoe respectively.  Relying on the maxim that regulations adopted
under remedial legislation must be liberally construed, Gil Haugan and Tri-City
held that section 1926.550 applies to machines used to perform lifting functions usually
performed by cranes or derricks, regardless of whether the machines were originally
designed for that function.  None of the majority opinions in these cases, however,
examined the question of what a "crane" is with the aid of the ANSI standard
that section 1926.550 incorporates by reference.  Yet, as Lisbon argues, that ANSI
standard sheds much light on the proper construction of section 1926.550.

Section 1926.550 incorporates by reference at several points ANSI B30.5-1968,
Safety Code for Crawler, Locomotive and Truck Cranes.[[2]]  ANSI B30.5-1968 defines a
crawler crane as "[a] crane consisting of a rotating superstructure with power plant,
operating machinery, and boom, mounted on a base, equipped with crawler treads for
travel."  ANSI B30.5-1968, section 5-0.2.1.1.  Elsewhere in the ANSI
standard, a "boom" is defined as a "member hinged to the front of the
rotating superstructure with the outer end supported by ropes leading to a gantry or 'A'
frame and used for supporting the hoisting tackle."  Section 5-0.2.2.12.  
Nothing we have seen indicates that this backhoe has a "boom" within the meaning
of the ANSI standard, i.e., a member outfitted with ropes, a gantry or
"A-frame," or hoisting tackle.[[3]]

Furthermore, the ANSI standard expressly excludes backhoes.  The scope
section of the ANSI standard provides:  "Within the general scope defined in
Section I, Volume B30.5 applies to crawler cranes . . . and any variations thereof which
retain the same fundamental characteristics."  Section I provides that
"[t]his Code does not apply to . . . shovels, dragline excavators, or backhoes ."
(Emphasis added.)  We therefore conclude that this backhoe is not a "crane"
as that term is used in section 1926.550.

We recognize that this decision is inconsistent with Tri-City , which
involved equipment and facts nearly identical to those in this case.  There a
Caterpillar 235 backhoe was used to lift and lower pipe sections into a trench.  The
Commission held that section 1926.550(a)(9) "applies to machines used to perform
lifting functions usually performed by cranes or derricks, whether the machines were
originally designed for that purpose or not . . . ." 7 BNA OSHC at 2191, 1980 CCH
OSHD at pp. 29,548-29,549, quoting Gil Haugan , 7 BNA OSHC at 2007, 1979 CCH
OSHD at p. 29,291.  The rationale of Tri-City was that differences in the
specific types of machines are irrelevant.  The regulatory scheme of the standards,
however, does not support this conclusion. Section 1926.550 is divided into paragraphs
entitled "Crawler, locomotive, and truck cranes," "Hammerhead tower
cranes," "Overhead and gantry cranes," "Derricks, and "Floating
cranes and derricks."  See 29 C.F.R. � 1926.550(b)-(f).  Their detailed
requirements, and those of the three ANSI standards that they incorporate by
reference,[[4]] were tailored instead to the particular configurations and mechanisms of
cranes and derricks rather than to the machines' functions.  While we do not rule out
the possibility that the Secretary could draft standards governing machines based on their
function, he has not done so here.

Gil Haugan and Tri-City invoked the oft-repeated maxim that
regulation adopted under remedial legislation must be liberally construed.  Those
decisions accorded no importance at all to the words of the standard or whether those
words reflect a deliberate choice by its drafters.  We cannot agree with this
approach.  The remedial purpose of the Act does not give the Commission license to
ignore the standard's plain meaning.  See Symons v. Chysler Corp. Loan
Guarantee Board , 670 F.2d 238, 241 (D.C. Cir. 1981). As the Ninth Circuit has aptly
stated, "mere citation to OSHA's remedial purpose . . . [cannot] substitute for
analysis of the problem at hand."  Marshall v. Anaconda Co., 596 F.2d
370, 377 n.6 (9th Cir. 1979).  Yet, Gil Haugan and Tri-City did not
analyze whether these machines are "cranes" under any definition or sense of the
word.  Those decisions did not discuss whether the OSHA drafter might have chosen to
regulate these machines based on their configuration and operating characteristics rather
than their function.  Instead, they relied solely on the maxim of liberal
construction and reasoned that a backhoe is a "crane" whenever it lifts objects
and presents the hazard addressed by one of the subsections of � 1926.550.  The
Secretary's standards, which set policy, strike a balance between the protection of
employees and the imposition of burdens on employers.  To ignore the words of the
standard and the underlying policy choices that they reflect, is to upset that balance and
substitute a new one.  That is not the function of an adjudicatory body.  See ,
e.g ., Minnesota v. Clover Leaf Creamery Co. , 449 U.S. 456, 469 (1981); United
States v. Sisson , 399 U.S. 267, 297-98 (1970).

Nor do we share the assumption of those decisions that their manner of
construction will further the Act's remedial purpose.  The safety and health of
employees cannot be served if employers that are subject to the Act's penalty provisions
are not afforded fair notice of their obligations under the Act.  See Pennsuco
Cement & Aggregates, Inc ., 80 OSAHRC 47/A2, 8 BNA OSHC 1378, 1381, 1980 CCH OSHD
� 24,478, p. 29,890 (No. 15462, 1980).  The expectation that such a liberal
construction would advance employee safety and health is unrealistic.  As the Fifth
Circuit has pointed out, "[t]o strain the plain and natural meaning of words for the
purpose of alleviating a perceived safety hazard is to delay the day when the occupational
safety and health regulations will be written in clear and concise language so that
employers will be better able to understand and observe them."  Diamond
Roofing Co. v. OSHRC , 528 F.2d 645, 650 (5th Cir. 1976).  Employers
reasonably expect that the words of a standard are a reliable guide to their duties.
  A construction of a standard that bears no reasonable relationship to the
standard's plain words cannot be expected to guide employers in their conduct.  We
therefore overrule Tri-City .[[5]]

Accordingly, the judges decision is affirmed.  The citation item
alleging non-compliance with section 1926.550(a)(9) is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  MAY 31 1984

CLEARY, Commissioner, concurring in part and dissenting in part:

This majority decision rejects long-standing precedent and eliminates the
sole means of protection for workers from the rotating superstructure of machines used as
cranes.  Ironically, the majority need not have gone this far.  At the time of
the violation, Commission case law had held that machines such as the one involved here
were not subject to the crane standard.  The administrative law judge therefore held
that Lisbon lacked fair notice of the standard's applicability.  I agree.  Due
process of law requires that an employer must have fair notice of what is required by a
standard.  See Diebold, Inc. v. Marshall , 585 F.2d 1327, 1335-37 (6th
Cir. 1978).  Yet, the majority sidesteps this aspect of the case in order to write
new law.  I therefore must dissent.

This case presents the issue of what standard to apply where an employer uses
a multi-purpose piece of equipment to perform functions usually performed by more
specialized machinery.  Here, a Caterpillar 235 backhoe being used in a trenching
operation was also used to lift a trench box and lower it into a trench.  In the
course of this operation the machine's superstructure rotated and could have struck or
crushed nearby employees.  The compliance officer testified without rebuttal that an
employee walked only three to six feet away from the rotating superstructure.  It is
clear from the record that this machine had the same sort of rotating superstructure that
any crane has and was being used as a crane.  It posed the same grave danger to
employees that any crane's rotating superstructure poses and presented the precise danger
that the barricading provision of the crane standard was intended to eliminate.

The majority arrives at its contrary interpretation of section 1926.550(a)(9)
by way of an analysis not of the OSHA standard but of an ANSI standard that is
cross-referenced in other provisions of section 1926.550.  In finding that this
machine is not a "crane" under section 1926.550(a)(9) the majority relies
heavily an the scope section in ANSI B30.5-1968, which excludes "backhoes" from
the ANSI standard's coverage.  Yet, that particular provision of the ANSI standard is
nowhere cross-referenced in section 1926.550.  The majority also attempts to derive
support for its position from the definition of "crane" in 29 C.F.R. Part 1910
and ANSI B30.5-1968.  Here again there is no evidence that the Secretary intended the
definition to control the scope and application of section 1926.550.  The three
subsections of section 1926.550 that cross-reference ANSI B30.5-1968 do not purport to
define and indeed say nothing about the scope of section 1926.550(a)(9).  Those
subsections refer to the ANSI standard for entirely different purposes.  That much is
clear from footnote 2 of the majority opinion.  In any event, the majority's
reasoning is not sufficiently persuasive to overrule Commission precedent.

The majority finds "plain meaning" in bits and pieces of evidence
that prove, according to them, that the crane standard should be given a semantically
literal reading.  This kind of reasoning repudiates not only the specific remedial
purpose of this Act, but also the general principle of liberal construction of remedial
legislation.  As the Supreme Court once observed, just as courts should not go too
far in expansive readings of remedial legislation, there is "an obvious corollary to
that principle, that we must take care not to narrow the coverage of a statute short of
the point where Congress indicated it should extend."  United States v. An
Article of Drug , 394 U.S. 784, 801 (1969) (rejecting a "strict medical
definition" of the term "drug" and "device" where a broader
interpretation would produce greater benefit to the public under the Federal Food, Drug,
and Cosmetic Act).

The plain fact remains that the rotating superstructure of this machine was
configured like that of a crane, performed the work of a crane, and posed the identical
hazard to nearby workers.  The unfortunate consequence of the majority opinion is
that employers are permitted to avoid the burden of complying with the crane barricading
requirement whenever they use a backhoe as a crane. This result was squarely rejected in Gil
Haugan , where the Commission stated:  "We cannot subscribe to an
interpretation of the standards that would place less stringent requirements upon
equipment that is potentially as hazardous as the equipment clearly governed by the
standard, when both pieces of equipment perform the same function."  7 BNA OSHC
at 2007, 1979 CCH OSHD � 24,105, p. 29,291.  That decision struck the proper balance
of worker protection and should control.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 1926.550(a)(9) provides:

� 1926.550 Cranes and derricks .

(a) General requirements . . . .

(9) 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 or crushed by the crane.

[[2]] See �� 1926.550(a)(4)("Hand signals to crane and derrick
operators shall be those prescribed by the applicable ANSI standard . . . . ");
1926.550(a)(7) (vi) ("Wire rope safety factors shall be in accordance with [ANSI
B30.5-1968]"); 1926.550(a)(13)(ii) ("Guardrails, handholds, and steps shall be
provided on cranes . . . conforming to [ANSI B30.5-1968]"); and 1926.550(b)(2)
("All crawler, truck, or locomotive cranes in use shall meet the applicable
requirements for . . . operation as prescribed in the ANSI B30.5-1968 . . . . ").

[[3]] Reliance upon the definitions in the ANSI standards is also appropriate
because the crawler crane definition in the ANSI standard is identical to the OSHA
definition in the general industry standard, 29 C.F.R. � 1910.180(a)(1).  Although
the OSHA definition applies only to section 1910.180, no party has argued that the
definitions in Part 1910 address equipment different from that regulated under section
1926.550.  Indeed, � 1910.180 was derived from the ANSI standard referenced in �
1926.550(b)(2). See � 1910.189 (listing sources of standards).

Moreover, one of the standards in Subpart O (�� 1926.600-606), which
applies to "Motor Vehicles, Mechanized Equipment, and Marine Operations," shows
that when the Secretary wishes to apply a crane standard to a non-crane, he has done so
expressly. Section 1926.600(a)(6) states that "[a]ll equipment covered by this
subpart shall comply with the requirements of � [1926].550(a)(15) when working or being
moved in the vicinity of power lines or energized transmitters."  That the
Secretary drafted such a special provision strongly suggests that we should not create one
by construction.

[[4]] ANSI B30.6-1969, Safety Code for Derricks; ANSI B30.5-1968, Safety Code
for Crawler, Locomotive and Truck Cranes; ANSI B30.2.0-1967, Safety Code for Overhead and
Gantry Cranes.

[[5]] We do not at this time overrule Gil Haugan .  Although Tri-City
involved equipment identical to that in use here, Gil Haugan involved a very
different machine.  In Gil Haugan , workers were using a shop-modified farm
tractor to lift bar joists. Considering its dissimilarity to the machine here, we have no
occasion to decide whether the equipment used in Gil Haugan was a crane under
section 1926.550.