Flintco, Inc.

Plain-English summary

Flintco was using a rough-terrain crane at a Tulsa construction site when the crane tipped over and its jib struck a passing vehicle, killing the motorist. OSHA cited Flintco for allegedly operating contrary to the manufacturer's limitations and for inadequate crane-hazard instruction. The judge vacated the manufacturer-limitation item because the Secretary did not prove that positioning the unloaded crane was prohibited on-tire operation. The judge affirmed the instruction item as serious with a $1,000 penalty because an experienced operator responsible for training another employee misunderstood an explicit restriction on pick-and-carry work with the jib attached. During Commission review, the Secretary withdrew that remaining item. The Commission set it aside and dismissed the case, eliminating the penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2) and 1926.550(a)(1)
• Outcome: Both crane items were vacated, and the $1,000 penalty was eliminated.
• Key point: The Commission dismissed the case after the Secretary withdrew the only crane item the judge had affirmed.

Full text (OSHRC public release)

Docket No. 90-2572

SECRETARY OF LABOR,

Complainant.

v.

FLINTCO, INC.,

Respondent.

OSHRC Docket No. 90-2572

ORDER

On September 22, 1992, the Secretary filed a Notice of
Withdrawal in the above-captioned case. The Commission acknowledges receipt of the
Secretary's Notice of Withdrawal and sets aside that portion of the Judge's Decision and
Order affirming the alleged violation of 29 C.F.R. � 1926.21(b)(2). There being no
matters remaining before the Commission requiring further consideration, the Commission
orders the above-captioned case dismissed.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: September 28, 1992

SECRETARY OF LABOR,

Complainant.

v.

FLINTCO, INC.,

Respondent.

OSHRC Docket No. 90-2572

APPEARANCES:

Janice L. Holmes, Esquire
        George R. Carlton, Jr., Esquire

Dallas, Texas
                             Dallas,
Texas

For the Complainant
                  For
the Respondent.

Before: Administrative Law Judge Stanley A Schwartz

DECISION AND ORDER

This is a proceeding brought before the Occupational Safety and
Health Review Commission ("the Commission") pursuant to section 10 of the
Occupational Safety and Health Act of 1970 29 U.S.C. et seq. ("the Act"). The
Occupational Safety and Health Administration ("OSHA"') conducted an inspection
of a construction site in Tulsa, Oklahoma on July 26, 1990, after a tragic accident
earlier that day in which a crane operated by one of Respondent's employees fell over and
caused the death of a passing motorist. The inspection resulted in the issuance of a
serious citation alleging violations of 29 C.F.R. �� 1926.21(b)(2) and 1926.550(a)(1).
Respondent contested both of the citation items, and a hearing was held on June 7, 1991. A
background of the facts of this case is set out below, followed by the relevant testimony
and a discussion of the alleged violations.

Background

On the day of the Accident, Flintco was engaged in an office
building construction project at the intersection of Utica Avenue and Thirteenth Street.
Kevin Martin, a Flintco employee, was attempting to position a Lorain 27.5-ton "rough
terrain" crane in order to lift material off of a scaffold.[[1]] Martin first drove
the crane towards the building and then backed it towards Thirteenth Street, with the boom
and its attached jib in a lowered position in front of the rig. He then drove towards the
building again and as he neared the scaffold he raised the boom to avoid entangling it.
Since he was somewhat off center of the loading area, he proceeded to back the crane
towards Thirteenth Street again; as he did so, the crane became unbalanced and fell over,
resulting in the jib impacting on a passing vehicle. (Tr. 11-12; 29-35; 39-40; 45-50;
80-88; 195-196; C-1-2; C-9-10; R-1).

Gerald Young, the OSHA compliance officer ("CO") who
inspected the site, saw the crane laying on its side with the boom in a fully elevated
position and the outriggers not deployed; the jib had been removed to allow traffic to
pass. There were identical load charts and operating instructions on the fuel tank and on
the inside of the cab of the crane. The load chart stated that "[t]he load should be
restrained from swinging. No on tire operation with jib erected." The operating
instructions stated that the "[u]se of jibs, lattice-type boom extension, or fourth
section pullout extended is not permitted for pick and carry operations." The CO
concluded the operation of the crane with the jib attached and without using the
outriggers violated the load chart and caused the accident. He also concluded Martin had
not been instructed in the load chart provisions. (Tr. 8; 11-39: 51-55; C-1-10).

The Testimony

Gerald Young, the CO, has been with OSHA for sixteen years and
has a BS in aeronautical engineering technology. He has never operated a crane, but has
had OSHA training in this regard. Young testified that the jib, which is used for lifting,
swivels off to the side when not in use, and that while it is semi-permanently attached to
the end boom, the manufacturer's instructions prohibit it from being on the boom when the
sitting on its tires. His opinion was that on-tire operation includes moving and
positioning a crane, and that the manufacturer's instructions meant the rig could not be
operated with the jib attached without the outriggers being deployed. (Tr. 8-10; 29-30;
41-43; 55-61).

Kevin Martin has been employed by Flintco since 1982; he works
primarily as a carpenter, but also performs crane operation. Martin testified he defined
on-tire operation as any lifting or picking up and carrying of a load without the use of
outriggers. He said it was his understanding, based on his reading of the operator's
manual and lifting charts for the Lorain, that while pick and carry operations were
forbidden with the jib erected, simply moving the rig with the jib erected was not. (Tr.
62-65; 84-85; 103-04; 193-95). Ronald Rosebrough has worked for Flintco since 1966, and
has operated cranes for eight or nine years. Rosebrough testified he would consider
driving a rig with the outriggers in and the boom raised an on-tire operation. He further
testified he had read the manual and lead charts for the Lorain, and that as far as he was
concerned, it was permissible to both drive the rig and use it for pick and carry
operations with the jib attached and the outriggers in. (Tr. 90-93. 110-15).

Michael Ellis has been a business representative of the
International Union of Operating Engineers, Local 627 ("the Union") for eleven
years, and has been its assistant business manager for about five years: he was a
full-time crane operator for four or five years before becoming a Union representative.
Ellis testified the Union's membership includes crane operators, that he investigates
accident sites in connection with his position, and that he viewed the subject size on
July 26, 1990. He opined that positioning a crane with the boom up is an on-tire
operation, and that C-7, the Lorain's load chart, prohibits this activity with the jib
attached. Ellis noted it is industry practice to put a jib on and leave it on, and that
while it is permissible to travel on tire with the jib lowered, a crane should not be
moved with the jib raised without using the outriggers. (Tr. 116-26; 132-34; 137).

Andre Whitson has been the Union's safety director and business
representative for six years. He has 22,000 hours of crane operation experience and has
run the Union's apprenticeship program for ten years. He also sits on the Union's Safety
and Health Portable and Hoisting Committee, which works on ANSI standards. Whitson
testified that moving a crane with the job erected, boom raised and outriggers in an
on-tire operations. He said the only way to travel under such circumstances would be with
the outriggers out and fairly close to the ground, which would still violate C-7. Whitson
noted that while moving a crane on tires with the jib attached is a common practice, the
activity is totally against manufacturers' instructions. (Tr. 140-50).

Walter Dickinson is employed by United Steel Erectors, a crane
rental and steel erection company. He has 25 to 30 years experience as a crane operator
and has also worked as an operator's foreman. Dickinson testified his company had rented
cranes to Flintco, and that it provided Flintco the Grove crane used at the site. He said
the major difference between the cranes was that the Lorain was "boom-heavy,"
which makes a difference in regard to stability. He also said that in his opinion, an
on-tire operation consists of picking up a load and carrying it with the outriggers sucked
in, as opposed to maneuvering a crane without a load, which he described as "setting
up." Dickinson noted he moves cranes on tire with the jib attached and boom raised as
a matter of course. He further noted he had reviewed the operator's manual and other
materials for the subject crane. He understood C-7 to prohibit picking up a load with the
jib attached without the outriggers, and said there was nothing in the literature he had
seen to prohibit moving the crane with the jib attached and without a load, whether the
boom was up or down. (Tr. 161-70).

Richard Murray has a Ph.D. in mechanical engineering. He is
currently in independent consulting engineer, and was previously a department head and
tenured professor in the College of Mechanical Engineering at Oklahoma State University.
Dr. Murray testified he had examined the crane near the end of July, 1990, and that he had
performed tests to determine its stability. He concluded it had fallen over due to a basic
instability problem which was augmented by its rear axle oscillation valve. He explained
that the valve allows the rear axle to pivot and conform to the ground, as opposed to the
front axle, which does not pivot. Dr. Murray noted that although this design allows the
unit to move over uneven ground, it reduces the stability of the crane and subjects it to
tipping over. He also noted the axle automatically locks whenever the boom moves ten
degrees off center which restores stability. His opinion was that the jib being attached
in this case with the straight forward whether it was raised or not, actually added
stability to the rig (Tr. 171-91; R-2-3).

Dr. Murray further testified that although the operator's
manual mentions the axle oscillation valve. There is nothing in the manufacturer's
literature which would wan an operator of the stability problems caused by the valve. He
said an appropriate warning would be to convey the crane's tendency to tip over when the
axle is unlocked. He also said it would be possible to have a manual lock that would
permit the operator to lock the axle in certain situations, but that doing so would take
away the crane's ability to move over rough terrain. Dr. Murray observed that while he did
not review the crane's design specifications, its design is typical of all forklift
trucks, which must go through ANSI mandated stability tests. He was not aware of the
testing the manufacturer conducted, other than its conformance with SAE codes, but he was
sure it was more in depth than his own. (Tr. 176-77; 181-89).

Dr. Murray noted he was not a crane operator, but that he had
been around them and had familiarized himself with the industry terminology through his
investigation. It was his belief that an on-tire operation is one in which a load is
picked up and moved, and that maneuvering a crane in order to pick up a load is called a
"set-up." Dr. Murray was also familiar with the operator's manual and notices in
the crane, none of which, in his opinion, prohibits the movement of the crane with the jib
attached and the outriggers up. (Tr. 174-76: 189-90).

29 C.F.R. � 1926.550(a)(1)

Citation item number 2 alleges a violation as follows:

29 CFR 1926.550(a)(1): The employer did not comply with the
manufacturer's specifications and limitations applicable to the operation of cranes or
derricks: On jobsite: employees operated a Lorain LRT 275D rough terrain crane in "On
Tire" operations with jib erected prohibited by manufacturer's specifications which
is shown on load chart posted on crane, exposing employees and operators to the hazard of
crane being turned over.

As noted supra, the load chart instructions for the subject
crane prohibit on-tire operation with the jib erected. The OSHA standard does not define
on-tire operation. It does refer an employer to an applicable manufacturer's
specifications and limitations. However, none of the manufacturer's literature presented
at the hearing defines this term. Moreover, although the manufacturer's instructions refer
to ANSI B30.5, that standard likewise provides no definition of on-tire operation. See
R-1, General Notes. The question to be resolved, therefore, is whether Martin's
maneuvering of the crane on the day of the accident constituted on-tire operation.

Seven witnesses with varying degrees of experience in regard to
cranes offered their opinions as to the meaning of on-tire operation. After considering
these opinions, I conclude that Dickinson's is the most persuasive based on his many years
of crane operation experience. He testified that an on-tire operation consists of picking
up a load and carrying it with the outriggers sucked in, as opposed to maneuvering the
crane without a load, which he called "setting up." Based on this testimony, and
the fact that neither the manufacturer's literature nor ANSI B30.5 defines the term. I am
not convinced that Martin's positioning of the crane was an on-tire operation; to the
contrary, the record indicates his activities were more in the nature of "setting
up" the crane in order to perform a lifting operation. Under the unique circumstances
of this case, I find the Secretary has not met her burden of proving by a preponderance of
the evidence that the limited maneuver performed by Martin was contrary to the
manufacturer's specifications.

In so finding, I am well aware of the fact that the crane fell
over and caused the death of a motorist. However, it is well settled by Commission
precedent that the occurrence of an accident, no matter how tragic, does not establish a
violation. Moreover, while the Secretary disagrees with Dr. Murray's opinion, his
testimony about the oscillation valve was both reasonable and credible and is instructive
as to why the crane became unbalanced and tipped over. This testimony, while not
dispositive, is relevant and provides a possible alternative explanation for the accident.
At the very minimum, it supports the conclusion that the Secretary has failed to establish
a violation of 29 C.F.R. � 1926-550(a)(1). This citation item is vacated.

29 C.F.R. � 1926.21(b)( 2)

Citation item number 1 alleges a violation as follows:

29 CFR 1926.21(b)(2): The employer did not instruct each
employee in the recognition and avoidance of unsafe conditions and the regulations
applicable to his work environment to control or eliminate any hazards or other exposure
to illness or injury: On jobsite employees operated a Lorain LRT 275D rough terrain crane,
in an "On Tire" manner traveling with boom raised and jib erected, exposing
operators and employees to the hazard of crane being turned over.

Although the foregoing refers specifically to the operation of
the crane on the day of the accident, it is clear from the record the parties were trying
the general issue of whether Flintco instructed its employees in the hazards of crane
operation. Consequently, the fact that Martin's actions did not constitute on-tire
operation does not, standing alone, require vacating this item.

Respondent contends it did not violate the standard because it
provided comprehensive instructions in regard to crane operation. The record shows that
Martin, Rosebrough and their supervisor did go over the operator's manual for the Lorain.
It also shows that both Rosebrough and Martin read the charts in the crane, and that
Rosebrough, as the more experienced operator, instructed Martin as to its capacity and
operation. (Tr. 36; 39; 51- 52; 71; 74-77; 84; 97-110; 113-14). Regardless, Rosebrough
clearly testified he believed it was permissible to perform pick and carry operations with
the Lorain Crane with the jib attached and the outriggers in. (Tr. 113-15).

As noted supra, the manufacturer's instructions state that the
"[u]se of jibs . . . is not permitted for pick and carry operations." (C-8; R-1,
General Notes). 1926-21(b)(2) requires employers to provide adequate instructions
regarding the hazards of the workplace. The record demonstrates that Rosebrough, who the
company trusted to instruct Martin, felt comfortable ignoring specific manufacturer's
instructions which, unlike on-tire operation, are beyond dispute as to their meaning. It
follows that Rosebrough was not provided adequate instructions with respect to the hazards
of crane operation. A violation of 29 C.F.R. � 1926.21(b)(2) has been established. This
citation item is affirmed as a serious violation, and the proposed penalty of is assessed.

Conclusions of Law

1. Respondent, Flintco Inc., is engaged in a bussiness
   affecting commerce and has employees within the meaning of section 3(5) of the Act. The
   Commission has jurisdiction of the parties and of the subject matter of the proceeding.

2. On July 26, 1990, Respondent was in serious violation of 29
   C.F.R. � 1926.21(b)(2).

3. On July,26, 1990, Respondent was not in violation of 29
   C.F.R. � 1926.550(a)(1).

Order

On the basis of the foregoing Findings of Fact and Conclusions
of Law, It Is ORDERED that:

1. Item 1 of citation number 1 is AFFIRMED as a serious
   violation, and a penalty of $I,000.00 is assessed.

2. Item 2 of citation number 1 is VACATED.

Stanley M. Schwartz

Administrative Law Judge

DATE: MAY 11, 1992

FOOTNOTES:

[[1]] The record shows Flintco had leased two cranes at the
site. One was a 15- or 18-ton Grove used from May to about mid-July, 1990; the other was
the Lorain, which was in use after July 4, 1990. (Tr. 34-36; 65-66; 70-72; 76-78; 95-99;
162; 166-67).