S.G. Loewendick & Sons, Inc. (Commission decision, August 9, 1994)

Read the official release (oshrc.gov)

Plain-English summary

S.G. Loewendick suspended a seven-ton backhoe and its operator from a crane roughly 70 to 80 feet above the ground to demolish bridge piers. The Commission held that the backhoe was a load, not a personnel platform, so the operator was prohibited from riding it under the incorporated crane-safety code. It rejected infeasibility and greater-hazard defenses because alternative methods were available and the company neither sought a variance nor showed that doing so was inappropriate. The violation was willful because the company resumed the operation after OSHA expressly told it the method was prohibited. The Commission assessed $33,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(b)(2).
• Outcome: Affirmed. The Commission reversed the judge's vacatur, affirmed a willful crane violation, and assessed $33,000.
• Key point: Machinery designed to perform work is not transformed into a personnel platform merely by suspending it from a crane, and a greater-hazard defense generally requires addressing the variance process.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

PHONE: FAX:
COM (202) 606-5100 COM (202) 606-5050
FTS (202) 606-5100 FTS (202) 606-5050

SECRETARY OF LABOR,
Complainant,
v. : OSHRC Docket No. 91-2487

S.G. LOEWENDICK & SONS, INC.,

Respondent.

DECISION
Before: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:

The issue in this case is whether S.G. Loewendick & Sons, Inc. (“Loewendick”) violated 29 C.F.R. § 1926.550(b)(2)1 by using a backhoe to demolish bridge piers on a bridge replacement project while the backhoe and its operator were suspended 80 feet in the air. We conclude that the company was in violation and find that the violation was willful.

FACTS
As part of a bridge-replacement project in Fairmont, West Virginia, Loewendick’s job

was to demolish the top 12 feet or so of the four piers that supported the bridge but to leave

1That standard provides:

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.

Section 5-3.2.3(e) of ANSI B30.5-1968, which is entitled “Moving the Load,” provides, “The operator shall not hoist, lower, swing, or travel while anyone is on the load or hook.”

2

the bottom 70 feet of each pier intact. Before work began, Loewendick performed an engineering survey and concluded that the safest way to perform the demolition was to suspend a piece of machinery and an operator from a crane.

Following this approach, Loewendick used a wrecking ball suspended from a crane to demolish as much of the superstructure of the bridge as possible. It then used the crane to position a 7-ton backhoe on the top of the piers, approximately 70 feet above the ground. The outriggers of the backhoe rested on the edge of the pier and a cable raised the opposite end of the backhoe slightly to put more of the machine’s weight on the outriggers. A Loewendick employee in the cab of the backhoe operated a hydraulic ram attached to the rear of the backhoe to cut down into the concrete, like a large jackhammer. The backhoe was lifted by four bridle slings, one at each corner, which were attached to the main cable of the crane. Each sling had a capacity of 28 tons, and the main cable had a capacity of more than 90 tons. The safety cable, which was attached to the front of the backhoe, ran to a separate drum, so that it could be operated independently. Loewendick also made modifications to the crane and the backhoe that it claimed assured the safety of the operation. These included welding metal braces to the telescoping outriggers on each side to prevent them from retracting accidentally and installing new ¾-inch cables on the crane instead of the ⅜-inch cables.

When a compliance officer from the Occupational Safety and Health Administration (“OSHA”) arrived to inspect the worksite, Loewendick had completed work on two of the four piers and was working on the third. During the inspection the compliance officer told Loewendick that, in his opinion, the backhoe operation did not comply with OSHA’s regulations. The following day, before Loewendick resumed work, Loewendick’s vice president telephoned the compliance officer to discuss the operation. They disagreed about whether the operation qualified for the exception in 29 C.F.R. § 1926.550(g)(2)? which

*Section 1926.550(g) provides:
§ 1926.550 Cranes and derricks.
(2) General requirements. The use of a crane or derrick to hoist employees on

a personnel platform is prohibited, except when the erection, use, and (continued...)

3

permits employees on a personnel platform to “ride the load.” The compliance officer’s supervisor insisted that the backhoe was not a personnel platform, while Loewendick’s vice president strongly asserted that he believed the backhoe, as modified, did qualify for the exception and stated that he would resume operations the following Monday unless OSHA issued a stop-work order.

After the compliance officer returned to Fairmont and learned that Loewendick had finished removing the tops of the piers with the backhoe, the Secretary of Labor issued a citation to Loewendick alleging a willful violation of 29 C.F.R. § 1926.550(b)(2). Loewendick contested that citation, and a hearing was held before a Review Commission administrative law judge. At that hearing, both Loewendick and the Secretary presented witnesses experienced in construction or demolition who expressed the opinion that the method used by Loewendick was the least dangerous way to perform the job. In addition, Loewendick presented two construction safety experts, one of whom was a former OSHA area director, who testified that Loewendick’s method was the least dangerous way to perform the work and that the backhoe should be considered a personnel platform. The Secretary presented the compliance officer, his supervisor, and the area director for that area, who all expressed the view that the backhoe was not a personnel platform under the standard.

Administrative Law Judge John H. Frye vacated the citation. He concluded that the suspended backhoe was not a load because it was not being transported from one place to another but was being held in a stationary position to perform work. Therefore, the judge found, the modified backhoe was being used as a personnel platform. He also found that Loewendick had established that it was entitled to the exception to the prohibition against riding the load because the use of conventional means of access would be more hazardous.

The judge observed that Loewendick should have been cited for noncompliance with various

*(...continued)
dismantling of conventional means of reaching the worksite, such as a personnel hoist, ladder, stairway, aerial lift, elevating work platform or scaffold, would be more hazardous, or is not possible because of structural design or worksite conditions.

4

sections of the personnel platform standard, 29 C.F.R. § 1926.550(g), rather than for violations of the standard charged. DISCUSSION

Section 5-3.2.3 of ANSI B30.5-1968, Safety Code for Crawler, Locomotive, and Truck Cranes, which is incorporated by reference into section 1926.550(b)(2), prohibits a crane operator from hoisting, lowering, swinging or traveling the load while anyone is on the load or hook. Loewendick claims that its backhoe comes within an exception to that prohibition, 29 C.F.R. § 1926.550(g)(2), which provides that a personnel platform may be used to hoist employees only if the use of conventional means “would be more hazardous or are not possible because of structural design or workplace conditions.” We find that the backhoe does not come within the exception to the prohibition against “riding the load,” and that Loewendick’s operation violated section 1926.550(b)(2) because the backhoe operator was “riding the load.” We also find that Loewendick has failed to establish any affirmative defenses.

The judge’s finding that the backhoe was not a load because it was used to perform work in a stationary position is in error. Although we have never encountered a situation like this, involving a machine being used in a manner like Loewendick’s backhoe, the Commission has generally accepted the Secretary’s position that a load is “anything hoisted by a crane.” Havens Steel Co., 6 BNA OSHC 1740, 1978 CCH OSHD 1 22,875 (No. 15538, 1978). Both of Loewendick’s construction safety experts, as well as the compliance officer’s supervisor, testified that even a personnel platform is a load. The evidence therefore clearly establishes, and Loewendick does not dispute, that the backhoe was a load.

We also find, however, that the backhoe was not a personnel platform. Whether the backhoe was a personnel platform is a question of fact to be answered by examining its features. See Superior Elec. Co., 16 BNA OSHC 1494, 1496, 1993 CCH OSHD ¶ 30,286, p. 41,721 (No. 91-1597, 1993). The backhoe here was clearly designed and intended to be operated on the ground in the manner of a motor vehicle, to propel itself along the ground as well as to perform work such as digging and plowing. The backhoe had four wheels and rubber tires. Even with the outriggers extended to lift the rear wheels off the ground, the front tires would bear much of the machine’s weight. Welding metal bars to the outriggers

to prevent them from retracting may have constituted a reasonable safety measure under

5

these circumstances, but it did not transform the essential nature of the machine into a personnel platform. Although its power train was capable of operating devices such as the ram being used here, the designers of the backhoe clearly intended it to be used on the ground, not suspended in the air. In contrast, a personnel platform is designed to transport employees as safely as possible from one place to another, usually from the ground to a work station and back. Although the Secretary’s witnesses agree that work may be performed by an employee aloft in a personnel platform, that is not the primary intent of section 1926.550(g)(2). Moreover, the object of a personnel platform is to position the employee where he can perform the work, in contrast with the backhoe which is designed to perform work itself. The presence of the backhoe operator was merely a necessary incident to the purpose of the machine; he had to operate the ram for the backhoe to accomplish its task. Accordingly, we find that the backhoe was not a personnel platform.

Loewendick has presented a number of other arguments which must fail because they are based on the premise that the backhoe was a personnel platform. The company argues that ANSI B30.5-1968 has been revised a number of times to modify its prohibition on riding the load, and that OSHA itself recognized that an absolute prohibition on riding the load was not practical, pointing to various OSHA documents. These ANSI and OSHA documents show the background for the 1988 adoption of section 1926.550(g), but they are not pertinent here because the adoption of section 1926.550(g) has established the law. That standard governs the limited exception to the prohibition on riding the load, and it requires that a personnel platform be used. Loewendick also relies on Crane or Derrick Suspended Personnel Platforms, a pamphlet published by OSHA to help familiarize employers with the requirements of section 1926.550(g), which states that the standard “allows employers flexibility in deciding how to provide the best protection.” That flexibility, however, is also based on the premise that the employer is using a personnel platform, which precludes Loewendick from relying on it.

AFFIRMATIVE DEFENSES

Loewendick has failed to establish that its failure to comply with the cited standard should be excused because literal compliance either was infeasible, or would expose employees to a greater hazard than would non-compliance. Loewendick raised the first of

these affirmative defenses in its answer to the Secretary’s complaint, alleging that compliance

6

with the cited standard was infeasible. In order to prove the affirmative defense of infeasibility, an employer must prove that (1) literal compliance with the requirements of the standard was infeasible under the circumstances and (2) either an alternative method of protection was used or no alternative means of protection was feasible. State Sheet Metal

Co., 16 BNA OSHC 1155, 1160, 1993 CCH OSHD ll 30,042, p. 41,226 (No. 90-1620, 1993). Here, the evidence establishes that compliance with the standard was feasible. Loewendick could have kept the backhoe operator off the load by using an alternative method to perform the work. Loewendick asserts that it could not do this because all the alternative demolition methods permitted by its contract were more dangerous. This argument, however, is more properly addressed to the greater hazard affirmative defense, not the infeasibility defense.
Loewendick did not plead the greater hazard affirmative defense in its answer as
required by Rule 34(b)(3) of the Commission’s Rules of Procedure, 29 C.F.R. 5 2200.34(b)(3). In determining whether it is appropriate to amend the pleadings under Rule 15(b) of the Federal Rules of Civil Procedure3 to allege that defense, we consider whether the parties clearly recognized that the evidence was directed toward an unpleaded issue. Safmay Store No. 914, 16 BNA OSHC 1504, 1516-17, 1993 CCH OSHD ll 30,300, p. 41,749.50 (No. 91-373, 1993). The prerequisites for using a personnel platform are essentially the same as the first two elements of the greater hazard defense, (1) that the hazards caused by complying with the standard are greater than those encountered by not

3Under section 12(g) of the Act, 29 U.S.C. 0 661(f), the Federal Rules of Civil Procedure apply to Commission proceedings unless the Commission has adopted a different rule. None of the Commission’s Rules of Procedure addresses this situation, so the Federal Rules apply. Rule 15(b) of the Federal Rules provides:

Rule 15. Amended and Supplemental Pleadings

;bj Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
 7

complying, and (2) that alternative means of protecting employees were either used or were not available. Peterson Bros. Steel Erec. Co., 16 BNA OSHC 1196, 1204, 1993 CCH OSHD

1 30,052, p. 41,304 (No. 90-2304, 1993), a&M, No. 93-4913 (5th Cir. July 21, 1994). hewendick introduced evidence relevant to these issues in its attempt to prove that it had satisfied the prerequisites for using a personnel platform. If this were the only evidence, we could not find that the Secretary had consented to try the affirmative defense. However, on cross-examination of Loewendick’s witnesses the Secretary raised the third element, that a variance under section 6(d) of the Act is not available or that application for a variance would be inappropriate. Id. He also argued to both the judge and the Commission that the exception contained in 29 C.F.R. 6 1926.550(g)(2) should be viewed in terms of the traditional greater hazard defense. Under these circumstances, we find that the parties squarely recognized that they were trying that affirmative defense. Accordingly, we amend the pleadings to allege that defense.
We find, however, that Loewendick has not proved that defense. We need not -
examine each element of the defense but direct our attention to the third element, the variance application requirement, which is well established in Commission precedent and has been endorsed by a number of courts of appeals.4 Were we to find that Loewendick had proved the first two elements of that defense, we would still not find that Loewendick had proved the defense because it has not established the third element. Loewendick admits that it had not applied for a variance, and it has not established that application for a variance would have been inappropriate. Loewendick presented testimony by a former OSHA area director that a variance application involves several steps, that it takes OSHA a long time to act on applications, and that variances are rarely granted. Neither of these factors, however, prevented Loewendick from filing an application for a variance. Nor has Loewendick persuaded us that its situation should be distinguished because it involved a temporary rather than a permanent worksite. Even if we were to make this distinction, this situation did not arise in the middle of a job and unexpectedly require an immediate resolution. Loewendick performed an engineering study before beginning any work and

4Spancrete Northeast, Inc., 15 BNA OSHC 1021, 1023 n.3, 1991-93 CCH OSHD ll 29,313, pa 39,357 n.3 (No. 86-521, 199;), and cases cited therein. 8

concluded at that time that suspending a backhoe from a crane was the safest way to do the work.
We also find without merit Loewendick’s claim that it did not apply for a variance
because it believed that it was operating a personnel platform. The evidence establishes that Loewendick was aware that the backhoe did not comply with a number of the requirements in section 1926550(g) governing personnel platforms, including those for guardrails, interior grabrails, and an anti-two-blocking device. With this knowledge, Loewendick could not have believed that it was operating a personnel platform. Loewendick’s reliance on the testimony of two safety consultants does not provide support for its argument. The record indicates that it did not consult them until after the inspection. The only support for Loewendick’s belief that it believed it was properly operating a personnel platform is the company’s assertion, and we note that Loewendick’s engineering study referred to the backhoe as an “aerial work station,” not a personnel platform. Considering the facts before us, we find that Loewendick has not shown that application for. a variance was inappropriate?
WILLFULNESS
To establish that a violation was willful, the Secretary bears the burden of proving
that the violation was committed with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety. WiZZiamEntep., 13 BNA OSHC

1249, 1256-57, 1986-87 CCH OSHD lI 27,893, p. 36,589 (No. 85-355, 1987). There must be evidence that an employer knew of an applicable standard or provision prohibiting the conduct or condition and consciously disregarded the standard. Hem Iron Works, Inc., 16

BNA OSHC 1206, 1215, 1993 CCH OSHD II 30,046, p. 41,256 (No. 89-433, 1993).
A

‘Chairman Weisberg notes that Commissioner Montoya has proposed that this case be remanded to permit the judge to consider whether Loewendick has established that it falls within a purported “good faith” exception to the variance application requirement under the greater hazard defense. Chairman Weisberg observes that the greater hazard defense was not raised by Loewendick in its answer to the complaint nor is there any Commission precedent for a “good faith” exception to the variance application requirement under the greater hazard defense. Even assuming the existence of a “good faith” exception, it would need to be established on an objective, rather than subjective, basis. a General Motors Cop., Electra-Motive Div., 14 BNA OSHC 2064, 2068, 1991-93 CCH OSHD lI 29,240, pa 39,168 (No. 82-630,1991)( consolidated cases); u/illiam Entep, Inc., 13 BNA OSHC 1249, 1259, 1986-87 CCH OSHD ll 27,893, p. 36,591 (No. 85-355, 1987). Accordingly the judge would not be in a better position than the Commissioners to determine this issue. 9

violation is not willful if the employer had a good faith belief that it was not in violation. The test of good faith for these purposes is an objective one - whether the employer’s belief concerning a factual matter, or concerning the interpretation of a rule, was reasonable under the circumstances. General Motors Electra-Motive Div., 14 BNA OSHC 2064, 2068, 1991-93 CCH OSHD ll 29,240, p. 39,168 (No. 82-630, 1991).
We find that the evidence establishes that the violation was willful. Once the
telephone conversation with the compliance officer and his supervisor had taken place, Loewendick was aware that using the backhoe in this manner was .prohibited. By electing to resume the operation, it intentionally disregarded the requirements of the Act. Given the disparate natures of backhoes and personnel platforms, we find that Loewendick’s belief that it was operating a personnel platform was not reasonable under the circumstances. Nor could Loewendick have relied on an opinion from the consultant it called the day after the inspection. He testified that he could not say whether there was a violation because he had not seen the operation and did not know all the facts.
PENALTY
The Secretary proposed a penalty of $50,000 for the violation. Section 17(j) of the
Act provides that the Commission shall assess an appropriate penalty for each violation, giving due consideration to the size of the employer, the gravity of the violation, the good faith of the employer, and the employer’s history of previous violations. 29 U.S.C. $ 666(j). The most significant factor to be considered in assessing an appropriate penalty, however, is gravity. Natkin & Co., 1 BNA OSHC 1204, 1205, 1971-73 CCH OSHD II 15,679, p. 20,968 (No. 401, 1973).
Gravity includes a number of factors, including the number of employees exposed to
the hazard, the duration of their exposure, the precautions taken to prevent injury, and the degree of probability that an injury would occur. Turner Co., 4 BNA OSHC 1554,1567, 1976, 77 CCH OSHD ll 21,023 (No. 3635, 1976), rev’d on other grounds, 561 F.2d 82 (7th Cir. 1977). Examining those factors here, we find that only one employee was exposed, but his exposure lasted for the duration of Loewendick’s work on the piers. Loewendick took several precautions, set out above, to prevent the occurrence of an accident, and we find that the likelihood of an accident was low. 10

Considering the other three statutory penalty factors, we find that Loewendick is not
a large company. It has 60-75 permanent employees and has approximately 150 employees at its busiest. The compliance officer testified that the company had no history of violations in West Virginia, and, while the record indicates that it had received a citation in Ohio, there is no information whether that citation was contested or had become a final order. Therefore we will not assume that it had become a final order and will give the company credit for a good history. Although a willful violation precludes us from according the company full credit for good faith, it is not inconsistent to find a violation willful and find that the employer exhibited some degree of good faith. C.N. Flags & Co., 2 BNA OSHC 1195, 1196, 1974-75 CCH OSHD 7 18,686, p. 22,586 (No. 1734, 1974). Commissioner Foulke would give some credit for good faith because the record shows that the company was very active in its trade association’s safety committee, followed that organization’s safety manual, and had an extensive safety program of its own. We therefore conclude that a penalty of $33,000 is appropriate!
CONCLUSION
For the reasons above, we find that the judge did err in vacating the citation alleging a willful violation of 29 C.F.R. 0 1926.550(b)(2). W e set aside the judge’s decision and find that Loewendick committed a willful violation of that standard. We assess a civil penalty of $33,000.

Stuart E. Weisberg
Chairman

%AaL
Edwin G. Foulke, Jr.
Dated: August 9, 1994 Commissioner

%lthough Chairman Weisberg would not afford the company credit for good faith in this case, he would find that the extensive precautions taken by the company here reduce the gravity of the violation. Hence he agrees that a reduction of the proposed penalty to
$33,000 is warranted.
MONTOYA, Commissioner, concurring and dissenting:
I concur with my colleagues’ holding that the judge erred in concluding that the
backhoe was wrongly cited as a load under 29 C.F.R. 8 1926550(b)(2) rather than as a nonconforming personnel platform pursuant to the exception provided in 29 C.F.R. 0 1926.550(g). I join in their finding that the backhoe was not a personnel platform as defined in 29 C.F.R. Q 1926.550(g) and that Loewendick was therefore properly cited with a violation of 29 C.F.R. 5 1926.550(b)(2). I also agree with their finding that the greater hazard defense is properly before the Commission, as all of the elements, including the requirement that a variance be applied for, were raised by the parties at the hearing.
I disagree, however, with my colleagues’ conclusion that the greater hazard defense
must fail simply because Loewendick neglected to apply for a variance. My colleagues have chosen to decide this issue themselves without benefit of the judge’s insight. In my opinion, this finding should be made in the first instance by the judge who heard the case. The judge was present for the entire hearing, as my colleagues were not. He has observed the witnesses and no doubt formed opinions as to their sincerity and credibility. He is therefore better placed than my colleagues to determine whether (1) Loewendick’s management officials held a good faith belief that they had in fact satisfied the preconditions for operating a personnel platform under section 1926.550(g)(2) and (2) they in good faith believed that the backhoe, as modified, constituted a personnel platform.
If the judge were to find that the company held such good faith beliefs, he could
conclude that Loewendick had established that it was not appropriate for the Commission to require an application for a variance. See Seibel Modem Manufacturing & Welding Cop., 15 BNA OSHC 1218, 1224, 1991-93 CCH OSHD li 29,442, p. 39,680 (No. 88-821, 1991). After all, why should the Commission require a company to apply for a variance from a standard if that company honestly believes, before it has had the benefit of a Commission opinion, that it is operating under an exception contained within the standard? In my opinion, it would not be appropriate to require an employer to engage in such a redundant compliance effort.
This seems especially so here, as an application for a variance would not only have been very time-consuming, it likely also would have been an exercise in futility. Federal OSHA has shown itself to be reluctant to grant variance applications. Indeed, in Fiscal Year 1993, of 50 applications for variances received by Federal OSHA, only one was granted?
Therefore, I would remand this case to the judge for further consideration consistent with the concerns I have expressed.

Velma Montoya
Commissioner

Date: August 9, 1994

‘In Contras t, the twenty-five OSHA state plans (including those of Puerto Rico and the Virgin Islands) granted 121 variances during the same period. (Data supplied by Federal OSHA’s Directorate of Technical Support and Directorate of Federal/State Programs.) UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

p+mbE
FAX:
COM(202)6O6-S100
CoM @x2)6o64050
FTs(202)6086100
FTS (202) 6o64x50

.
SECRETARY OF LABOR, ..

Complainant,

v. .. Docket No. 91-2487
.

S.G. LOEWENDICK & SONS, I
INC.,
..
..

Respondent.

NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on August 9,1994. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 0 660.

m THE COMMISSION
August 9, 1994
Date
Docket No. 912487

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Catherine Oliver Murphy
Deputy Regional Solicitor
Office of the Solicitor, U.S. DOL
14480 Gateway Building
3535 Market Street
Philadelphia, PA 19104

Roger L. Sabo, Esq.
Schottenstein, 20x & Dunn
The Huntington Center
41 South High Street
Columbus, OH 43215

John H. Frye, III
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-t 246

FAX.
COM (202) 634-4008
FTS (202) 634-4008
SECRETARY
OF LABOR
Complainant,
OSHRC DOCKET
v. NOS. 91-2487
91-2618
LOEWENDICK CONTRACTORS
AND
VECELLIO & GROGAN, INC.,
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on January 29, 1993. The decision of the Judues will become a final order of the Commission on March 1, 1993 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY
REVIEW. Any such petition should be received by the Executive Secretary on or before February 18, 1993 in order to ermit sufficient time for its review. See Commission Rule 91, 29 C.F. Ep. 2200.91.
All further pleadings or communications
regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any part\’ hawng questions about review rights may contact the Commission’s Executittl Secretary or call (202) 634-7950.

FOR THE COMMISSION
DOCKET NOS. 91-X37 & 91-2618

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ional Solicitor
Of fice of the Solicitor, U.S. DOL
14480 Gatewa Building
3535 Market J treet
Philadelphia, PA 19 104

Roger L. Sabo, Esquire
Schottenstein, 20x & Dunn
The Huntington Center

41 South HI h Street
Columbus, 6 H 43215

John H. Frye, III
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, DC 20006 1246
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
1
/
I ‘i 4TH FLOOR
i
WASHINGTON
DC 20006-1246

FAX:
COM (202) 634-4006
FTS 634-4006

SECRETARY
OF LABOR,

Complainant,
.
v. .. Docket Nos. 91-2487
0
.
91-2618
.

LOEWENDICK CONTRACTORS
;
and
..
VECELLIO & GROGAN, INC.,
..
..
Respondents.
l
.
.
.

Appearances:

Joseph T. Crawford, Esquire
Roger L. Sabo, Esquire
Gayle M. Green, Esquire
Schottenstein, Zox & Dunn
Office of the Solicitor, USDOL
Columbus, Ohio
Philadelphia, Pennsylvania
For Complainant
For Respondents

BEFORE: Administrative Law Judge JOHN H FRYE, III

DECISION AND ORDER

This case arises under the Occupational
Safety & Health Act of 1970, 29 U.S.C.
651678 (1970) (Act). On March 28 and April 12, 1991, Arnold Persinger, a Compliance
Officer employed by the Occupational Safety and Health Administration, conducted an
inspection of a work site in Fairmont, West Virginia, at which Respondent Vecellio &
Grogan, Inc. was the general contractor and Respondent Loewendick Contractors was a
subcontractor engaged in demolition work.
 As a result of that inspection, separate citations were issued against both Respondents alleging they had committed serious violations of Section (5)(a)(2) of the Act.’ Respondent Loewendick Contractors also received citations for a willful and an other than serious violation.
Both Respondents filed timely notices of contest. Following the filing of complaints by the Secretary, both answered admitting the jurisdiction of the Commission and that they are employers engaged in a business affecting commerce within the meaning of 0 3(5) of the Act.2 The cases were ultimately consolidated and were heard in Charleston,
West Virginia on August 4th and 5th, 1992.

I. INTRODUCTION
A The Fairmont, West Virginia Project.
In 1991, Vecellio & Groan, Inc. (“V&G”)3 received a contract from the West -
Virginia Department of Transportation to demolish an existing bridge in downtown Fairmont, West Virginia, and replace it with a new structure.4 The design set out in the contract called for V&G to demolish the superstructure of the existing bridge, leaving the
bottom portion of the piers in place. The piers were approximately eighty-eight feet in
height. Because of their deteriorated state, the top twelve feet of the piers was to be removed and replaced. V&G contracted with Loewendick Contractors (“Loewendick”) for the demolition work?

‘29 U.S.C (s 654(a)(2).

2Although the United Steel Workers and Local Union X14614, District 23, intervened as the authorized bargaining agent for the employees of Vecellio & Grogan in Docket 91-2618, they did not participate in the case. No other party intervened.

3V&G is a corporation and a general contractor with a mailing address at P.O. Box V, Beckley, W.Va. 25802- 2819.

4Tr. 173,260.

%ewendick is a corporation headquartered in Columbus, Ohio. It is an established, unionized demolition contractor operating primarily in Ohio, Kentucky, and West Virginia since 1929. In 1991, mendick had approximately one hundred and fifty to two hundred employees. It is a member of various associations (continued...)
B. Loewendick Conducts a Pre-engineering
Studv and Formulates a Plan for the
Fairmont, West Virginia Proiect.

Because of the unique aspects of demolition as opposed to construction, Loewendick

routinely undertakes a “Pre-engineering Study” for each demolition project. This includes

meeting with the field superintendents and employees to review procedures.6

    For the Fairmont       project, Company Vice President,           David Loewendick,        with his

father, the Company President, formulated a demolition plan. Because initial demolition of

the pier caps was to be accomplished by means of an eighty ton crane with a three and one-

half ton wrecking ball to remove as much of the pier caps as possible without destroying

integrity of that portion of the pier which was to remain, the Loewendicks concluded that

a severe potential for employee exposure existed. In their opinion, this exposure resulted

from the existence of unstable concrete and rebar left on the pier caps by the wrecking ball.

Thus employees could not safely be placed on top of the caps to remove this material,

because they would lack secure footing and would be removing what footing they had as a

part of their operation. Nor could they be placed on scaffolding next to the pier caps,

because to do so would necessarily expose them to overhanging unstable material.’

Accordingly, Loewendick devised a plan utilizing an aerial platform, specifically, a

rubber-tired backhoe weighing seven tons outfitted with a hydraulic hammer.
The backhoe

5(...continued)
including the National Association of Demolition Contractors (“NADC”). See Tr. 88, 174, 197~199,261,383- 84,389.

%ee Tr. 274,323,387; R. Exh. 1, at page 1.

‘See Tr. 282,390-393; R. Exh. 16. Loewendick also considered drilling into each pier and placing explosives. They could not do that, however, due to the structural fatigue to the adjacent buildings and the requirements of the West Virginia Department of Highways. Tr. 194,393. was suspended by an eighty-two ton Link-Belt crane.
Loewendick suspended the backhoe

by means of a four-point hitch bridle attached to the main line of the crane. Two of the

four points of the hitch bridle were attached to the rear outriggers of the backhoe and two

to the front axle. A second line, which served as a stabilizing and safety line, ran from the

backhoe’s front bucket to a second drum on the crane. Loewendick utilized newly installed

three-quarter inch 17 ton capacity cable instead of the three-eighths inch cable. The

backhoe operator was belted to the backhoe seat and, in addition, wore a safety belt

attached by two lanyards to either side of the backhoe.8

C. Vecellio & Grogan. Inc. Review the Operations of Loewendick and Concur in the Results of the Pre-Engineering Studv.

      John Jones was the Project Superintendent         for V&G at the Fairmont        project.   His

duties were to oversee the entire project and to correct anv unsafe conditions. d
When Jones

learned that Loewendick was going to utilize a backhoe suspended
by a crane for this

operation, he contacted his immediate supervisor, V&G Project Manager John West, as well

as Company Safety Manager, Kenny Hatfield. Both came to the project to review the

procedure?

West reviewed this procedure and possible alternatives to it, and discussed these with

Jones and Danny Castordale, V&G Vice President of Construction and a civil engineer,

along with Company representative John Conkwright. All agreed that there was no other

$ee Tr. 284-85,324,327,3%, 338,340,394. Loewendick has used similar methods of demolition on prior occasions. Consequently, Loewendick assigned experienced employees to this particular job. Tr. 280-81,323- 24,337, 393-94.

‘See Tr. 188,199.
 L -
5

feasible or safer method to perform the work and that this procedure
was an appropriate

method?’

Hatfield is the Company Safety and Risk Manager for V&G. Hatfield observed the

operations on February 7th and March 6th of that year. The procedure was described to

him by both Jones and Loewendick Superintendent Harry Keith. He concluded that there

was no safer method of performing the work?’

D. OSHA Inspects the Fairmont Operation and Issues Citations.

    The Charleston        office of the Occupational       Safety & Health     Act Administration

received a photograph from a state official depicting the crane holding the backhoe aloft.

As a result, OSHA Safety Supervisor Jerry Good directed Mr. Persinger to inspect the
-

worksite. Mr. Persinger did so for the first time on March 28, 1991, accompanied by Chuck

Green, a new OSHA Compliance Officer. Mr. Persinger returned to the worksite for a

second visit on April 12, 1991, following an anonymous tip.12 As a result of these

inspections, citations were issued to Loewendick and V&G. The following were contested

at the trial.

1. Citations issued to Loewendick.

a. Serious Citation 1

Item Standard Description

3 1926.20(b)(3) Employee performed maintenance on crane while
it was in operation.

“See Tr. 194, 194, 198,233,260, 264,268.

%ee Tr. 162, 164-66, 171, 177-79; R. Ekh. 11.

‘he Tr. 16,25, 145.
 - 6-

4a 1926.59(e)(2) Failure to develop a method to ensure MSDS
0i
were available to another employer on site.

b           1926.59(e)(2)                    Failure to develop a method to inform other

0ii
employers of information and precautionary
measures for hazardous materials.

C           1926.59(e)(2)                    Failure to develop a method to inform other

.. .
( 111>
employers of labeling system used.

5a 1926251(a)( 1) Rigging equipment not inspected prior to use or
as necessary.

b           1926.25 l(a)( 1)                 Defective rigging equipment         not removed from

service.

6 1926.550( a)( 1) Non-compliance with manufacturer’s
specifications for operating a crane: employee hding load.

7 192655O(a)( 12) Crane window shields cracked and distorted.

8a 1926.550(b)(2) & 0 Crane sheave wheels damaged.
5.1.7.4. ANSI B305-
1968

b           1926550(a)(5)*                   Crane not inspected,         as evidenced      by sheave

wheels.

b l Other Than Serious Citation 2

1 1926.550(a)( 14)(i) Fire extinguisher not accessible in cab of crane.

A total penalty of $16,750 was proposed for Citations 1 and 2.13

c. Wilful Citation 3

1 1926.550(b)(2) & A 20 ton FMC Link-Belt crane was supporting a
1968 ANSI
seven-ton caterpillar backhoe, serial number

13Citation 1, Items 4a, 4b, and 4c were reduced to other than serious at the hearing and the proposed penalty was reduced from $1250 to $00.
8 5.3.2.3e
7BCOO7B, approximately 70 ft. in air, with
operating ram on backhoe on 3128191and 4/12/91.

A fine of $50,000 was proposed for Citation 3.

2. Citation Issued to V&G.

A serious citation identical to Wilful Citation 3 issued to Loewendick was issued to

V&G. The penalty proposed was $7000. These two citations and Citation 1, Item 6, issued

to Loewendick are discussed first.

II 0 USE OF THE BACKHOE AS AN AERIAL WORK PLATFORM

A ArMcabilitv of 29 C.F.R. 61926.550(b)(2).

1. The Secretarv’s Position.

The Secretary has cited Respondents for violating 29 C.F.R. 6 1926.550(b)(2) which

provides that:

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, homotive and Truck Cranes.

Section 5-3.2.3(e) of the referenced ANSI standard includes the provision that:

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

The Secretary argues that Loewendick violated fj 1926.550(b)(2) because it used its

Link Belt truck crane to hoist a manned load, consisting of a Caterpillar backhoe on which

an employee was riding, approximately 70 feet in the air. She correctly points out that there

is no dispute concerning the facts that a Loewendick employee was riding the backhoe and

that the management of both Loewendick and V&G were aware of the operation and had
 -8-

approved it. To establish aviolation of any standard, the Secretary notes that she must

establish the an&ability of the standard, non-compliance with it, employee exposure or

access to the resulting hazard, and employer knowledge of the hazard.14 The facts recited

above are sufficient in the Secretary’s view to meet that burden.

Recognizing that Respondents rely on § 1926.550(g)(2), which permits the use of

personnel platforms where it can be shown that “conventional
means of reaching the

worksite ... would be more hazardous,” the Secretary makes two points.
First, a backhoe is

not a personnel platform within the meaning of that standard, and second, its use as a

personnel platform is prohibited because Respondent has not shown that conventional

means of reaching the worksite would be more hazardous? The Secretary supports her -

first point by citing various requirements for personnel platforms contained in 6 1926.550(g)

which she alleges were not satisfied by the backhoe. She points out that OSHA determined

that compliance with the specific provisions of the standard was essential to minimize the

significant risks posed by such operations.16

+he Secretary re lies on Dunn-Par Engineered Form Co., 12 BNA OSHC 1949 (No. 79.2553), Rev’d and remanded on other grounds, 843 E2d 1135(8th Cir. 1988), decision on remand, OSHRC Docket No. 792553 (April 12,1989).

‘ssee Secretary’s brief, pp. 13-23.

%ee Secretary’s brief pp 13-20 The specific requirements related to personnel platforms which are allegedly violated by the backhoe are: 1. that the backhoe be designed by a qualified engineer (0 1926550(g)(4)(i)(A)); 2 that the backhoe incorporate guardrails (0 1926.55O(g)(4)(ii)(A)); 3. that the backhoe incorporate a grab rail (9 1926550(g)(4)(ii)(B)); 4. that the backhoe incorporate sufficient headroom to permit employees to stand (5 1926.550(g)(4)(ii)(E)); and 5. that the backhoe incorporate a plate indicating the weight of the backhoe and its rated load capacity or maximum intended load (0 1926.55o(g)(4)(ii)(I)). In addition, although it is not a requirement applicable to personnel platforms, the Secretary has pointed out that the crane allegedly failed to comply with 8 1926.55O(g)(2)(ii)(C) which requires the use of a device to prevent two- blocking.
 -9a

    Although          5 1926.550(g)(2)          specifically   provides      that    it must    be shown that

conventional means constitute a greater hazard, the Secretary views the second point” in

terms of the greater hazard defense, which requires a respondent
to show that the hazards

of comnlvine with a standard are neater
14 Y
v
than the hazards of not complying, other means

to protect employees from the hazard are not available, and a variance is either not

available or not appropriate.” The Secretary asserts that Respondents have not

convincingly established that a more conventional means of reaching the worksite, such as

scaffolding, would be more hazardous than the intrinsically hazardous practice of suspending

personnel fr-om a crane. The Secretary states that OSHA found that accidents resulting

from the use of cranes or derricks to hoist personnel result in approximately 63 injuries -

annually, including fifteen fatalities and seven totally disabling injuries,19 and that

Respondent’s witnesses acknowledged these hazards?

    While the Secretary            notes that Respondents             adduced        evidence    that use of a

conventional means of reaching the worksite, scaffolding, would be more hazardous because

it would force employees to work beneath hanging debris,21 she also notes that

“The Secretary’s discussion of this point is found on pp. 20-24 of her brief.

l&rhe Secretary rehes on Seibeli&&m Manufacftuing& lVk&fbzg
l
Corp., 15 BNA OSHC 1218, 1224 (Rev.
Comm. 1991).

19See 53 Fed. Rea at 29117, August 2, 1988.

%emard Enfield, a safety and health consultant who testified for Respondent, stated his opinion that the OSHA regulation on personnel platforms is too permissive and will result in more accidents because it too readily permits the use of crane suspended personnel platforms (Tr. 243). Ken Hatfield, Corporate Safety Manager of Vecellio & Grogan testified that crane manufacturers in the United States are emphatically opposed to the use of cranes for personnel hoisting under any circumstances whatsoever (Tr. 229).

21See Tr. 391.93,408.09.
 -10.

L,oewendick’s witness, James Fry, testified that during demolition of the pier cap,

Loewendick suspended an employee from a man cage to bum off steel rods with a torch?

Therefore, the Secretary speculates, it should also be possible to eliminate
overhanging

debris and loose material by employees working from a suspended man cage prior to the

erection and use of conventional scaffolding for the remainder of the demolition.

    The Secretary       makes     much of the fact that Respondents                did not request      a

variance? She maintains that a review of the regulations regarding personnel
platforms

would have made it clear that the operation was not in compliance. She asserts that

Respondents presented no evidence as to the unavailability or inappropriateness of a

variance other than the testimony of James Vaughan, a former OSHA Area Director from
.

the Columbus, Ohio office, who testified that in his experience, the variance process is slow

and seldom successful ? She believes that Respondents had ample opportunity to request

a variance in advance of the performance of the operation. She does not specify whether

Respondents should have sought a variance from 8 1926550(b)(2)
or (g)?

%ee Tr. 342-343.

%r. Loewendick testified that he did not request a variance because he believed he was in compliance with the standard (Tr. 399-400).

%ee Tr. 364-66.

“The Secretary’sposition is unclear. On the one hand, at pp. 21-22 of her brief the Secretary appears to take the position that Respondents should have requested a variance in connection with their assertion of the greater hazard defense. Thus, as a part of that showing, the Secretary asserts that Respondents should have applied for a variance or shown why a variance would not be appropriate. Seibel M&&z Miznufactzuing & welding Corp., supra, note 18. While the Secretary does not say, one would presume that the variance would be sought Tom the requirements of 5 1926.550(b)(2). However, the Secretary goes on to imply at pp. 23-24 that, because the backhoe is at best a nonconforming personnel platform, a variance Born the mandatory provisions of 8 1926550(g) relating to personnel platforms should have been sought. This position presupposes that Respondents have shown that conventional means of reaching the worksite are more hazardous and that a variance from these mandatory provisions is thus necessary. Indeed, the Secretary explicitly adopts this latter position in her reply brief at p.9.
 -ll-

2. The Resoondents’ Position.

Respondents begin their response to the Secretary by arguing that the prohibition on

“riding the load” contained in 0 1926.550(b)(2) is no longer an absolute one. They point out

that the ANSI B30.5-1968, incorporated by reference in 5 1926.550(b)(2), has been revised

on several occasions since 1968. In 1982, the requirement that the operator shall not hoist,

lower, swing or travel when anyone is on the load or hook was removed from the ANSI

standard and existing 8 5.3.2.2, “Personnel Lifting,” was inserted in its place. This section

provides in part:

This Standard recognizes that mobile and locomotive cranes are designed and intended for handling materials. They do not meet personnel lifting or elevator requirements. Therefore, no crane function shall be performed while
-
a person is on the hook, load, manlift platform, boom or other personnel lifting device attached to the crane load line or boom, unless each of the specific special following requirements are met. . . .

They also point out that in 1988, OSHA also adopted standards for personnel

platfonns,26 and that prior to 1988, OSHA recognized the necessity of “riding the load” in

certain situations. The preamble to the 1988 regulation recites the history of the pre-1988

treatment of crane-suspended personnel platforms as exceptions to 5 1926.550(b)(2). It

states:

Since 1975, OSHA has issued four interpretations which provided guidelines for use of crane suspended work platforms. oo On October 8, 1981, the l

revisions of these guidelines were incorporated into OSHA Instruction STDl-11.2A. omThat instruction, in turn, was replaced by OSHA Instruction l

STDl-11.2d on August 8, 1983.27

%3 Fed. Reg. 29116 August 2, 1988.
 In promulgating 0 1926550(g), OSHA clearly recognized (1) at some worksites

conditions were such that methods other than personnel platforms could not be utilized, and

(2) the 1968 ANSI standard on this point was clearly out-of-date.
On the first issue the

Agency stated:

Based on its review of the record, OSHA has determined that hoisting with crane or derrick suspended personnel platforms constitutes a significant hazard to hoisted employees, and that it will not be permitted unless conventional means of transporting employees are not feasible, or unless they present greater hazards?

Turning to the second issue, OSHA recognized the lack of clear guidance:

OSHA believes that the primary cause of non-compliance is the lack of clear regulatory language in subpart N 29 C.F.R. part 1926. In particular, existing 51926550(b)(2) provides no direct regulatory guidance. It simply incorporates - ANSI B30.5 - 1968 by reference. Therefore, under current regulations, employers are expected to obtain and read an ANSI document, which, as stated above, has been superseded, and determine from it the procedures for personnel hoisting?

Focusing on the provisionsof 0 1926550(g), Respondents point out that OSHA has

taken the position in its publication entitled Crane or Derrick Suspended Personnel

PZt~tfonns30and in the Statement of Considerations31 accompanying the promulgation of

that standard that its provisions are performance oriented, thus allowing employers the

flexibility to decide how best to meet them. Respondents also cite two decisions of

Commission judges in which the use of personnel platforms was approved over the challenge

%3 Fed. Reg. at 29117 (1988).
29
Zfi

%ee Respondents’ Ex 18.

31Respondents cite 53 -’
Fed Req. at 29126,29128, and 29129.
that they violated the 1968 ANSI standard.32 In their brief, Respondents then go on to

review the process by which they devised the procedure used, Mr. Persinger’s inspection of

it and OSHA’s review of his conclusions, and the conclusions of the experts retained by

Respondents to review the procedure.33

Respondents then proceed to discuss the infeasibility and greater hazard defenses.

They assert that, because of the unstable nature of the material to be removed from the

piers, there was no feasible means to comply with the cited standard.
Workers could not

safely stand on top of the piers, nor could they safely work from adjacent scaffolding.
They

assert that the Secretary’s position is based only on speculation that it should be possible to

eliminate overhangs and to bring in loose materials while employees are working from a -

suspended man cage. They believe this position ignores the amount, height, size and nature

of the concrete and steel overhang which presents the hazard.
They point out that it is one

thing to have an individual cut individual pieces of steel left dangling - alluded to by Mr. Fry

and relied on by the Secretary - but quite another to attempt to remove sufficient concrete

and steel to eliminate the hazard.

Respondents assert that the Secretary’s position is also inconsistent with opinions of

the experts who testified. Mr. Hatfield considered the procedure as the only safe alternative

Loewendick had to perform the work. 34 Mr. Jones, Project Superintendent,
stated that,

32Tower King Inc., 12 BNA OSHC 1581 (&dyers, J. 1985); Mead Corp., Chillicothe Paper Co., 12 BNA OSHC 1999 (Brady, J. 1986).

3%ee Respondents’ brief, pp .21-27. At pp.27.29, Respondents address the Secretary’s two-blocking argument. See footnote 16.

%e Tr. 171, 176.
 -14.

because of the deterioration of the concrete and rebar, alternative ways to take the piers

down would expose more people to a more dangerous situation.35
Mr. Enfield knew of

no other method which would be safer than the procedure the Company utilized?

The Respondents spend considerable effort addressing the Secretary’s contention that,

in connection with the greater hazard defense, Respondents have not demonstrated that a

variance is either not available or inappropriate. They make the following points.”

First, the instant case does not present an issue of a recurring operation at a

permanent work place, such as the one addressed by the Commission the SeibeZ?

Second, where a deviation from 29 C.F.R. 6 1926.550(b)(2) is concerned,

OSHA has determined a variance is not necessary.

Third, OSHA was not in a position to issue a variance.

30 The Secretarv’s ReDlv

In her reply to Respondents’ brief, the Secretary makes the following points.3g

             First, 6 1926550(b)(2)        h as not been superseded        and applies.   Because

subsection (b)(2) incorporates ANSI B30.5 - 1968, that provision is applicable.

Second, although subsection (g) provides for the use of conforming personnel

platforms in certain circumstances, it is not applicable for two reasons: 1) a backhoe is not

35See Tr. 194.

%e Tr. 228.

37See Respondents’ brief, pp.32.35.

%pra, note 18. Respondents also cite H.S. Ho&e Constmction Co. v. Mmhall and OSAHRC, 627 F.2d. 149 (8th Cir. 1980); and Giffen Z~ustries of Jacksonville, Inc., 6 BNA OS-K 2001 (1978).

3gSee Secretary’s reply brief, pp.2-12.
 -15-

a personnel platform; and 2) Respondents
have not met the prerequisite for application of

subsection (g) - a showing that conventional means of reaching the worksite are more

hazardous.

Third, Loewendick has not made a convincing showing that conventional

means of reaching the worksite would be more hazardous:

                     A        Loewendick’s       position   that   it was in compliance    with all

regulations was not reasonable, given its long experience in demolition and use of similar

techniques in the past;

B. V&G’s review of the operation
was not based on the safety
.
requirements, and Respondents did not conduct a detailed study of alternative methods; and -

C l Respondents’ position that they need not apply for a variance

is incorrect -

In this case, assuming that Respondent could show that conventional means of reaching the worksite would be more hazardous or impossible, Respondent would be required to apply for a variance because it wanted to use equipment and an operation that did not conform to the design requirements of the applicable regulation, #1926.550(g)?

Fourth, the suspended backhoe did not comply with the requirements
of 3

1926.550(g) applicable to personnel platforms:

A The requirements which the Secretary alleges the backhoe failed

to satisfy are not optional; and

B. A backhoe is not a personnel platform.

qoSee Secretary’s reply brief, p.9. See also the discussion in note 25, szpa.
 -160

4. Discussion.

Respondents have clearly demonstrated that 6 1926.550(b)(2), which they are charged

with violating, is not to be read as an absolute prohibition on the use of crane-suspended

personnel platforms. The Secretary agrees that 8 1926.550(g) constitutes an exception to

the prohibition contained in subsection (b)(2). However, the parties disagree with respect

to whether a backhoe may be said to be a personnel platform.
The Secretary adamantly

insists that a backhoe is not a personnel platform, and that therefore Respondents were

correctly cited under g 1926.550(b)(2) rather- than 0 1926.550(g). The Secretary points out

that:

Backhoes, however, were not designed to be lifted in the air, just as
-
automobiles were not designed to float down rivers like barges. Backhoes are wheeled vehicles clearly designed to be driven on the ground. ... They were not designed, as a personnel platform would be, with consideration given to their stability when suspended in air41

As a result, in the Secretary’s view, 0 1926.550(g) is not applicable. While the Secretary is

correct that, in general, backhoes were not designed to serve as personnel platforms,

nevertheless the fact remains that in this case a modified backhoe was being used as a

personnel platform.

The backhoe in question was modified by welding rods so as to prevent the outrigger

pads on which the backhoe would normally rest while working from collapsing in the event

of hydraulic failure. Thus, while the Secretary is correct that in general backhoes are

wheeled vehicles designed to be driven on the ground, this modification
prevented this

particular backhoe from operating as a wheeled vehicle. The cables suspending the backhoe

41See Secretary’s brief, p.15; Tr. pp. 149, 421.
 -17-

were attached to these pads and to the front axle. In this manner, Loewendick provided for

the stability of the suspended backhoe.42

Moreover, Loewendick recognized that use of a backhoe in this manner posed the

risk that the action of the ram impacting on the pier could cause the backhoe to swing

unless appropriate precautions were taken. In order to prevent this, Loewendick rested the

outrigger pads on the pier and operated-the ram vertically for the most part, so that it was

cutting straight down.43

The Secretary points out that the backhoe did not comply with certain mandatory

technical requirements for personnel platforms, and thus should not be considered to be a

4&e Tr. pp.264,327 ,340. Exhibits G-l, G-2, and G-3 show the suspended backhoe resting its outrigger pads on the pier and illustrate that, so long as the pads are extended in that fashion, they would prevent the rear wheels from reaching the ground. 43 JUDGE FRYE: Mr. Keith, you heard the question I put to Mr. West I think, you were in the Courtroom, regarding the stability of the backhoe as the ram is chipping away.
THE WITNESS: The outriggers.
JUDGE FRYE: Well, my question was really having to do with the ram impacts on the pier, isn’t it going to push the backhoe back, I am curious about that?
THE WITNESS: Most of our operation was cutting straight down.
JUDGE FRYE: I see.
THE WlTNESS: And the stability of the pad setting on the concrete itself is more or less stationary.
JUDGEFRYE: Isee. Sointhat matter you avoided -- THE WITNESS: Yes, --
JUDGE FRYE: -- any pushing --
THE WITNESS: -- you couldn’t actually hit in sideways, because you would just keep pushing yourself out.
JUDGE FRYE: Then you would get it swinging, right?
THEWITNESS: Right.
Tr. 31546.

Q ~.sabo] And when he is actually physically up there, what kind of contact is the backhoe making with the pier concrete?
A w. Malcovsky] The way we set it up, he based himself where the operator would sit down on a shelf, he only needed 6 inches to actually put the machine down, and he rested the back of the machine on there and I stabilized him with the front line. I picked him up just a hair and made the machine solid so he could work.
Tr. 332. Additionally, Exhibits G-l, G-2, G-3, and G-4 illustrate the procedure used to prevent the backhoe from swinging while chipping away at the tops of the piers.
 -180

personnel platfornP Whether these technical requirements are relevant to the

configuration of the backhoe and the use to which it was put, and whether Loewendick was

in violation of them should have been raised by a citation specifically so charging.45 The

fact that backhoes in general are not designed for use as personnel platforms does not

dictate the conclusion that 5 1926.550(g) is inapplicable to the use to which the modified

backhoe was put in this case. Indeed, the use to which the modified backhoe was put by

Loewendick is directly addressed by subsection (g), which governs the use of crane

suspended platforms from which work is performed, not subsection (b)(2), which prohibits

riding’s bare hook or load of material. Here the suspended backhoe was used to perform

work. It was not a load simply being transported by the crane from one point to another. -

Given the safety of the design and the fact that the backhoe served as an elevated platform

from which work was performed, Respondents’ expert, Mr. Enfield, regarded it as a

personnel platform.46

The Secretary next points out that, by its terms, subsection (g) does not come into

play unless Respondents demonstrate that conventional means of reaching the worksite are

either more hazardous or not possible. There is no dispute that a conventional means of

reaching the worksite, scaffolding, was possible. However, the parties sharply disagree

concerning whether scaffolding would have been more hazardous than the method of

44&e note 16, supra.

451note that the Mr. Persinger originally sought to charge mendick under 8 1926.550(g), but was overruled. See Tr. pp. 88, 148-4~ Respondents’ Ex. 3.

‘%x Tr. 228,231. Mr. Enfield is a recognized expert on crane and hoisting equipment with many years of experience. Tr. 21048.
 -19-

operation choseno4’ The Secretary maintains that Respondents
have not shown that it

would be.

    While Loewendick’s Vice-President,          Dave Loewendick, acknowledged             that there is

no impediment to the erection of the scaffolding to the height required to reach the pier

caps, he also pointed out that the removal of the pier caps by many workmen using 90

pound hammers would necessarily

...expose a lot more man hours of risk, working men in an elevated position, climbing up and down scaffolding that is going to be collecting accumulated debris...?

He elaborated on that risk as follows.

Q [By Mr. Crawford] Mr. Loewendick, you stated during your direct examination that one of your concerns with scaffolding those piers and taking the material off
-
manually was that there was loose debris and material overhead that could potentially fall on the scaffolding?

A Correct, not on the scaffold, fall on the personnel on the scaffold.

Q And by loose material, were you referring to material of the type that appears in [exhibit] R-16?

A Correct.

Q Would it be possrble based on your experience to remove that loose material before you scaffold that area?

A What’s loose and what isn’t, we just fractured the structure with a 3 ton ball, there will be some internal breakage that you don’t know about.

---

47Scaffolding is the only alternative method which was seriously advocated at the hearing, Other alternatives mentioned were use of explosives and placing employees on top of the piers. See note 7, supra, and accompanying text.

@bee Tr. 403.
 -2o-

Q Based on your experience, is it possible to make an assessment on what loose material is available?

A No, you never assume anything in our business.

Q Can you make that assessment, I mean, when I say assume I mean can you make an assessment?

A The only way to make an assessment of the strength of the concrete is to core drill it and have it tested.

Q You can not assess, however --

A Not visually, no.

Q Were you in the courtroom when, I believe when Mr. Fry testified that in some cases you might have to bum off the metal of the type that is hanging in [exhibit1 R-16 using a torch and a personnel basket?
L a

A Yes, I was here.

    Q       Could that same basket be used to assess whether       or not there is loose

material that is still up there?

A Again, you can’t see inside the concrete.

Q But you are concerned with the material that may potentially fall on the scaffold that you might build; is that correct?

A I have seen vibration cause chunks to fall that looked like they are very substantial. * * *

Q But you are concerned with the material that you saw to be loose; is that correct?

A No, my concern is -- in our business, what you see you can control, it is the unknown that gets you in trouble, and [therefore] you never assume the unknown.49

49Tr. 408-10.
 -21-

    This testimony is uncontradicted          and persuasive.       It was corroborated       by Messrs.

Hatfield, Jones, Enfield, West, and Keith. So The hazard posed by the overhanging material

to the use of scaffolding is dramatically illustrated by Exhibit R-16. Nonetheless, the

Secretary maintains that time factors and economic considerations
played significant roles

in the selection of the suspended backhoe operation for the job, pointing to Loewendick’s

labor analysis for removal of the pier caps?

While the Secretary may be correct that the labor analysis shows that the backhoe

was a more economical way to accomplish the removal of the pier caps than scaffolding, that

analysis also corroborates Mr. Loewendick’s conclusions with regard to the relative risks

posed by the backhoe and scaffolding.

    Risk is routinely       evaluated     by multiplying       the probability     of an event by its

consequences. 52 The OSHA Field Operations Manual, of which I take official notice,

provides rules for evaluating the gravity of a violation in terms of probability
and severity

of consequences. 53 These rules provide a convenient and simple model to use to compare

the relative risks posed by the backhoe and scaffolding. While I do not regard the results

reached by using such a model to be dispositive, I do find that, because of the widespread

and routine use of these rules by OSHA compliance officers, the results are valuable in

“See Tr. 171 (Hatfield), 194 and 198 (Jones), 22829 (Enfield), 268 (West), and 281 and 315 (Keith).

%ee Secretary’s brief, pp.22.23. Loewendick’s labor analysis is Exhibit R-5.

52C&Pratt & WhitneyAircraft v. Dortovan and OSHRC, 11 BNA OSHC 1641,1646 (2d Cir. 1983): “Whether there exists a significant risk depends on the seriousness of the potential harm and the likelihood of that harm being realized.”

9hese rules app ro priately provide for the exercise of professional judgment and do not require that a precise mathematical evaluation be performed. See Manual, Chapter VI, ll B.
 -22,

assessing the testimony, all of which concluded that the backhoe provided a safer way of

proceeding than scaffolding.

In lr vi(B)(6), “S everity Assessment,” the Field Operations Manual provides four

categories for consequences ranging from Minimal Severity to High Severity. In 1 Vi(B)(7),

“Probability Assessment,” it provides for the consideration of four factors in determining

whether there is a greater or lesser probability that an injury will result from a particular

hazard. The four factors are number of exposed workers, frequency of exposure, proximity

to exposure, and relevant working conditions.

In comparing the risk posed by scaffolding with that posed by the backhoe, potential

accidents involving both scaffolding and the backhoe are assumed to fall into the high -

severity category because a fall from the top of the scaffold would likely be fata1,54 as

would an accident resulting in the dropping of the backhoe from a height of 70 feet.

Similarly, the probability factors applicable to both operations for proximity to the hazard

and working conditions are considered to be great, because the evidence in the record

substantiates that both are dangerous operations which place workers in the immediate

vicinity of the hazard under working conditions which are less than ideal?

Thus the relative risk of using scaffolding instead of the backhoe
depends on the

extent to which workers are exposed to the hazard. The labor analysis provides figures for

worker hours required to accomplish the task of removing the pier caps by each method.

54Conceivably,such a fall could be caused by debris from the overhanging pier caps impacting the scaffolding or a worker, or creating a tripping hazard. Of course, falling debris might also cause lesser injuries.

“While there is no testimony directly on this point, it would seem that using a jackhammer to break up concrete while standing on a scaffold 70 feet above the ground presents a perilous working environment.
 -230

Exhibit R-5 shows that about 5,920 worker hours would be required for removal of the pier

caps by means of scaffolding, 37 times the 160 required if the caps are removed by means

of the backhoe. This corroborates Mr. Loewendick’s conclusion. Clearly, the use of

scaffolding would have to be far safer than the backhoe before the relative risks would be v

equal. Because this record contains no basis on which to question
Mr. Loewendick’s
b

conclusion that use of the backhoe is the least hazardous means of accomplishing the work, 1

it is accepted.

There remains the question whether Respondents should have sought a variance as

urged by the Secretary.
As noted above,56 the Secretary’s position on the variance issue

is not clear. On the one hand, the Secretary appears to take the position that Respondents
-

should have requested
a variance in connection with their assertion of the greater hazard

defense, presumably from the requirements of 6 1926.550(b)(2). Because I have concluded

that Respondents were not properly cited for violating that standard, the Secretary’s

argument concerning it is moot.

The Secretary also asserts that, because the backhoe is at best a nonconforming

personnel platform, a variance from the mandatory provisions of 5 1926.550(g) relating to

personnel platforms should have been sought. However, that position finds no support in

the terms of the applicable standard, which requires only that the Respondents
demonstrate

that conventional means of reaching the worksite are either more hazardous or impossrble.

Had it been OSHA’s intent to burden itself with advance review and approval of the use of

%ee footnote 25 and accompanying text, sups
 -240

personnel platforms, surely appropriate requirements would have been stated in the

standard. Their absence dictates that the Secretary’s position must be rejected.

For the foregoing reasons, Citation 3 issued to Loewendick and the citation issued

to V&G are vacated. In reaching this result, I have concluded only that the Secretary should

have cited these Respondents for a violation of 0 1926550(g) rather than 6 1926.550(b)(2).

I reach no conclusions as to whether the operation in question complied with the former

standard.

B0 Violation of 29 C.F.R. S 1926.550(a)(l).

Section 1926550(a)( 1) states:

The employer shall comply with the manufacturer’s specifications and limitations applicable to the operation of any and all cranes and derricks.

The Secretary relies on Mr. Persinger’s testimony, the Crane Operator’s Manual, and

a certain Operating Safety Manual
for the proposition that Loewendick violated the

manufacturer’s specifications and limitations by permitting Mr. Fry to operate the backhoe

while suspended by the crane. 57 All of the provisions cited by the Secretary refer to the

practice of riding the hook or load. Because I have concluded that Loewendick’s use of the

backhoe did not violate the prohibition
in 5 1926.550(b)(2) against riding the hook or load,

it follows that that use did not violate this particular standard.
Citation 1, Item 6, is vacated.

57See tietary’s brief, p.33; reply brief, p.16.
 -250

III l ALLEGED VIOLATIONS RELATING TO THE CRANE AND RIGGING

A Failure to Inspect and Remove Defective Rigging from Service - 29 C.F.R. 8 1926.25 l(a)(l).

Section 1926.25l(a)( 1) provides, in relevant part that:

(a) General. (1) Rigging equipment for material handling shall be inspected prior to use on each shift and as necessary during its use to ensure that it is safe. Defective rigging shall be removed from service.

The Secretary charges that Loewendick was in serious violation of this standard in

that

After endloader/ram had made contact with concrete pier on several occasions, additional inspections were not completed and damaged wire slings were not removed ...,58

and

... wee-quarter] choker cable hooked into out riggers and had four (4) wire[s] in one strand ..* broken and was being used by a ... crane for holding a caterpillar [sic] oaobackhoe in air with opera tor on backhoe....59

The wire slings and choker cable were part of the system for supporting the backhoe

aloft and were attached to the outriggers and the front of the backhoe. Mr. Persinger

testified that he observed that the sling contained four broken wires and supported this

observation with a photograph. In Mr. Persinger’s opinion, this damage reduced the carrying

capacity of the cable and additional breakage could result in losing the load? The

Secretary asserts that, given the nature of the use to which the slings were put, the severity

“Citation 1, Item Sa.

59Citation 1, Item Sb.

%ee Tr 49-52; Gov’t Ek 8.
 -260

of the hazard is apparent. She contends that a prima facie case has been established for a

violation of the cited standard?

Loewendick’s superintendent on the job, Mr. Keith, testified that Mr. Persinger was

correct that there were some broken wires, but he was unable to identify any in the

photograph. Similarly, Loewendick’s expert witness, Mr. Enfield, was unable to find any

broken wires when he reviewed the photograph on which Mr. Persinger identified the

broken wires. Rather, Mr. Enfield found that the strands spread out as they passed through

the shackles, a normal process.62

Loewendick points out that four broken wires would not make the sling defective

within the meaning of the regulations. A separate paragraph of the standard under which -

Loewendick was cited specifies when wire rope shall be removed from service. Section

1926.25 l(c)(4)@) states:

Wire rope shall not be used if, in any length of eight diameters, the total number of visrble broken wires exceeds ten percent of the total number of wires, or if the* rope shows other signs of excessive wear, corrosion or defect.

The Secretary’s position with regard to this item is that the obvious nature of the

broken wires indicates that Loewendick failed to inspect and replace the cable as required

by 6 1926.251(a)(l). She has made no attempt to demonstrate that the wire rope in

question should have been replaced because it was in violation
of 5 19262Sl(c)(4)(iv).

61The Secretary argues that similar observational evidence of sling conditions was acceptedby the Co-ion as a basis for violation of this standard in Secretary v. A-I megates & Ermwting Iiac, 12 OSHC 1448 (ls), where the observation of a compliance officer that a hook on the end of a sling was twisted out of alignment coupled with respondent’s continued use of the sling established a violation of the standard.

(%. 227.
 -27-

Given the overcapacity of the cables in question to support the backhoe,63 it was

incumbent on the Secretary to show that the breakage of wires at least approached that

stated above in order to support the inference that Loewendick had failed to live up to the

obligations imposed by 5 1926251(a)( 1). The Secretary has failed to demonstrate
by a

preponderance of the evidence that Loewendick was in violation of 0 1926.25l(a)( 1). Items

5a and 5b of Citation 1 are vacated.

B. Cracked or Broken Crane Windows - 29 C.F.R. 81926.550(a)(12\

    Citation     1, Item 7, charged that the crane employed             by Loewendick       to lift the

backhoe “...had overhead and front cab window shields cracked and broken and vision was
-

distorted....”

The standard relied on by the Secretary, 29 C.F.R. §1926.550(a)(12), states that:

All windows in cabs shall be of safety glass, or equivalent, that introduces no visible distortion that will interfere with the safe operation of the machine.

Mr. Persinger testified that he observed that the overhead and front cab windshields

of the crane were broken and cracked windows and that this condition distorted the

operator’s view. Mr. Persinger took a photograph of the cracked overhead cab windshield

from inside the cab. The view through the cracked overhead window would ordinarily yield

a clear view of the boom on the crane.
Mr. Persinger testified that because the crane

operator would not be able to see clearly out the cracked windows, he could easily injure

%. Malcovsky testified that each of the four cables which composed the sling was rated at 17 tons capacity while the backhoe weighed seven tons. Tr. 324. This provides almost ten times the capacity needed to support the backhoe.
 -280

someone because of an inability to judge distances. For instance, he could hoist the

equipment too high and crush someone or knock something loose, injuring someone?

The Secretary points out that there is employee exposure to this hazard because it

is undisputed that there was an employee being hoisted on the crane. She also asserts that

it is undisputed that Loewendick knew of this hazard. The* cracked windshield was m plain

view to the operator of the crane, who was also Loewendick’s superintendent.
She maintains

that she has established her prima facie case, and that the $l,WO.OO penalty for this serious

violation proposed is reasonable and was calculated in accordance with Section 17(j) of the

Act a

In its brief, Loewendick maintains that Mr. Persinger could only observe one window
-

that was broken -- the overhead window -- and that the only picture taken by ML Persinger

was of that window. Loewendick further maintains that Mr. Persinger did not know if it was

possible to open the top window or if one needed to look out of the top of the crane in

order to view the backhoe. Loewendick points out that another exhibit, which depicts the

windows of the crane from the rear, does not reveal any distortion or cracks in the windows

facing forward, and that Mr. Keith, who was operating the crane on the day of the

inspection, testified that there was no need to use the skylight window in the operation
of

crane. Moreover, he stated he was in radio contact with operator of the backhoe at all

timeC5

%e Tr. 58-61; Gov’t Ex. 9.

“Tr. 105-06, 296-97; Gov’t Bt. 4. Loewendick relies on Rzhafi~d Steel Ektms, Inc., 9 BNA OSHC 1876 (1981) for the proposition that the damaged window in this case should not be found sufficient to support a violation. In Rutherford, a single crack existed in a window located behind the operator’s head. This crack (continued...)
 -29-

1 find that the Secretary has demonstrated that the cracked window located above the

operator’s head violates the cited standard. While I do not doubt the testimony elicited by

Loewendick that it was not necessary for the crane operator to utilize that window during

normal operations, nonetheless the possibility exists that in an emergency it could be

necessary for the operator to have an unobstructed view upward. Indeed, the standard is

not written so as to limit its requirements to windows which are utilized by the operator

during normal operations.

However, the Secretary has not demonstrated that any other window was similarly l

damaged. Mr. Persinger’s testimony was somewhat vague with respect to whether other

windows were damaged. Mr. Keith testified that no other window was damagedM and -

Gov’t I%. 4 fails to reveal any damage, although it appears to show a considerable
portion

of the windows facing forward. Because the penalty assessed clearly appears to have been

based on more than one window being damaged, I conclude that it is appropriate
to assess

only one-half of it, or $625.00.

    C. Failure to Inspect and Correct              Damaged       Sheave     Wheel     - 29 C.F.R.

§1926.550(bM2) and (a>(51

Citation 1, Item 8a directed to Loewendick charges that the crane being used to hoist

the backhoe had a “...lower hook block sheave wheel bent, cracked and worn....” Item 8b

65(...continued)
had existed for seven years and did not distort the operators view. It was held not to violate the standard. This situation is distinguishable from the instant situation in which the window, located directly over the operator’s head, was severely cracked.

%ee Tr. 297.
 -3o-

directed to Loewendick charges that the damaged sheave indicates that Loewendick had

failed to inspect the crane as required. The standard at 29 CFR 51926.550(b)(2) provides,

in relevant part that:

(2) 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. arn l

Section 5-1.7.4 of the referenced ANSI standard provides that:
a. Sheave grooves shall be smooth and free from surface defects which could cause rope damage. The cross sectional radius at the bottom of the groove should be such as to form a close fitting saddle for the size rope used and the sides of the groove should be tapered outwardly to facilitate entrance of the rope into the groove. Flange comers should be rounded and the rims should run true about the axis of rotation.

The standard at 29 CFR 51926.550(a)(5) provides, in relevant part that:

(5) The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

Mr. Persinger testified that he observed that on the Link-Belt crane the “lower

hooks sheave wheels were cracked [and] had pits in them....‘*’
Apparently, the sheave

wheels in question were located on the block and hook to which the sling supporting the

backhoe was attached? Mr. Persinger opined that the deficiencies he noted could damage

67Tr. 62.

@Tr. 63, Gov’t Ex. 10. Exhibit 10 shows two sheave wheels located on what appears to be a block. Only one sheave wheel was in use. Mr. Persinger identified defects in each wheel. the cable as it is taken up around the sheave wheels. He further testified that the defects

were not hidden or obscured in any way and could readily be seen.69

The Secretary maintains that defects such as those depicted in Mr. Persinger’s picture

are identified in the ANSI standard as conditions which could contribute
to rope damage.

Given the nature of the load being carried by the crane, the Secretary believes the severity

of the hazard is apparent, and contends that a prima facie case has been established for a

violation of the cited standards.

Loewendick maintains that the defects identified in h4r. Persinger’s picture could not

contribute to rope damage. Loewendick relies on its expert on cranes, Mr. Enfield, who

stated that the defects identified were not a cause for concern. In MIr. Enfield’s opinion, one
-

needs to be concerned about indentations in the sheave caused by the wire rope. These

would occur in the groove where the rope runs and should be measured with the use of

gauges.m Lxwendick points out that Mr. Persinger did not take any physical

measurements or use any instruments to determine the extent of the defects he believes are

illustrated in the picture, nor did he find that the wire rope running through one of the

sheaves was damaged.”
Loewendick points out that absent evidence that defects which

could damage wire rope were present in the sheave wheels, there is no basis for the citation

for failure to inspect the crane on a daily basis.72

69See Tr. 62-66.

‘@II. 230.

‘lTr. 123.

72Loewendick also points to testimony that the crane was inspected. Mr. Keith indicated that he had checked all safety aspects of the rig including the cables, the slings, and the backhoe (n* Xl), and that the regular (continued...)
 -320

    I find that hewendick’s        position is persuasive.       Mr. Enfield is an acknowledged

expert in the use of cranes and their maintenance. Consequently, I accept his testimony that

the defects identified in the sheave wheels were not a cause for concem.73 It follows that

there is no basis for the citation alleging a failure to inspect the crane. Items 8a and 8b of

Citation 1 are vacated.

    D0      Failure to Place a Fire Extinguisher          in the Cab of the Crane - 29 C.F.R.

gl926.550(a)(14)(iJ

Other than serious Citation 2 contains one item which charges that Loewendick had

not placed a fire extinguisher in the cab of the crane in violation of 29 C.F.R.

§1926.550(a)( 14)(i), which provides that:

An accessible fire extinguisher of 5BC rating, or higher, shall be available at all operator stations or cabs of equipment.

Mr. Persinger testified that he did not see a fire extinguisher when he inspected the

cab of the crane, and that Mr. Keith, who was the crane operator
on the day of the

inspection, did not know where it was. Mr. Keith testified that there was a fire extinguisher

in the cab but that he didn’t see it because it was covered by a raincoat.
The Secretary

submits that this explanation is implausible and, in any event, a fire extinguisher that the

operator cannot find is not accessible as required by the regulation.
Mr. Persinger testified

72(...continued)
operator, Mr. Malcovsky, would also inspect the crane on a daily basis (Tr. 287,321). Mr. Malcovslry reviewed the sheave after the inspection and could not identify anything detrimental to the cable (Tr. 329). See also Respondents’ Ex 14, the weekly checklist for the crane in question. *

73Loewendick also argues that there was no basis to issue a citation with respect to the sheave wheel which was not in use because it could not cause damage to the wire rope. I reject this argument. Clearly, that sheave wheel was available for use and would have been used had Mr. Malcovsky desired a greater mechanical advantage in lifting the backhoe. See Tr. 328.
 -33.

that the absence of a fire extinguisher exposed the crane operator to a bum hazard should

a fire occurY4

Loewendick argues that the standard provides that the fire extinguisher
must be

readily accessible, not that it be physically located within the crane cab.” It points out that

there was a fire extinguisher in this in the cab, but it was hidden by Mr. Malcovslq’s coat

which was hanging over it. It maintains that there is no basis for a violation.

     The Secretary’s position is persuasive.        The standard clearly contemplates      that “an

accessible fire extinguisher ... shall be available at all operator stations or cabs....” The

Secretary’s interpretation was adopted by the Commission in Austin Engineering Co., Inc.,

12 BNA OSHC 1187 (Rev. Corn. 1985). A fire extinguisher which the crane operator
is -

unable to locate is not accessible in the event it is needed. Item 1 of Citation 2 is affirmed;

a penalty of $00 is assessed.

Iv l ALLEGED MISCELIANEOUS VIOLATIONS

A. Performing Maintenance on Operating Crane - 29 C.F.R. 5 1926.20(b)(3).

Citation No. 1, Item 3, directed to Loewendick charges that an employee performed maintenance on [the crane] with motor running and crane with load on hoist line and controls were not locked out and motor turned off....

‘4Tr. 77,299.300.

‘%ewendick cites M&O Steel Erection, Inc., 7 BNA OSHC 2136 (1979) (extinguisher located in truck next to crane was accessible and available to operators) and M&-Ma Cbsbudon Carp., 13 BNA OSHC 1133 (1987) (extinguisher located at an office forty to fifty feet from crane cab was not in violation of

standard).
 -34.

The standard in question, 29 C.F.R. $1926.20(b)(3), provides:

The use of any machinery, tool, material, or equipment which is not in compliance with any applicable requirement of this part is prohibited. Such machine, tool, material, or equipment shall either be identified as unsafe by tagging or locking the controls to render them inoperable or shall be physically removed from its place of operation.

The Secretary notes that 29 C.F.R. #1926.20(b)(3) is a general safety and health

provision relating to accident prevention which requires the employer to tag or lock-out

equipment when its use would not be in compliance with an applicable requirement.
Mr.

Persinger observed an employee kneeling on top of the crane and performing some kind of

work while the crane was operating. Mr. Persinger did not obtain the name of the employee

because the employee disappeared before hrzr. Persinger could talk to him.76 By working on -

top of an operating crane, the employee was exposed to a number of serious hazards.

Vibrations could cause him to slip and fall a distance of three or four foot into cables or

other machinery, or to fall off the crane. In the absence of a fall, he was exposed to the

hazards of the motor, bums from hot exhaust or the hot muffler, or injury from other parts

of the equipment.”

Mr. Keith, the Loewendick job superintendent who was operating the crane, testified

that the employee was checking and filling the anti-freeze. He stated that it is necessary that

the motor be running when filling anti-freeze so as not to crack a block or head.78 The

‘6Tr. 45-48; Gov’t Ex. 4.

“Tr. 47-48, 101-104.

‘&rr. 299.
 -35.

Secretary seizes on Mr. Keith’s negative response on cross-examination
to the proposition

that the employee was “changing the cooling” and his clarification
that the employee was

only “checking” it” to argue that there is no reason why the employee should have been

working on top of the operating crane.

The Secretary argues that there can be no question but that Respondent
Loewendick

had knowledge of the hazard. The employee was photographed on top of the crane being

operated by Mr. Keith and Mr. Keith testified to what the employee was doing. The

Secretary urges that she has established her prima facie case, that Citation No. 1, Item 3,

should be sustained, and that the $1,750.00 penalty proposed is reasonable and was

calculated in accordance with Section 17(j) of the Act.

Loewendick does not dispute that an individual was on top of the crane to replenish

antifreeze. It asserts that the crane motor needs to be running during this process in order

to prevent damage and thus could not be locked out. Because, during this operation,
the

crane was not moving but was holding the ram stationary, there was no additional hazard

presented to the individual replenishing the antifreeze by the fact that the crane was

suspending the ram. Those same hazards would be present whether the crane was locked

out or tagged out.

It appears from Mr. Keith’s testimony that the crane had a faulty water pump which

required that the antifreeze be checked and replenished periodically? Thus while the

Secretary is correct that it would have been possible for Loewendick, after having lowered

‘9Tr. 313-14.

80rr. 298-99.
 -360

the backhoe to the ground, to shut the crane down in order to permit the antifreeze to be

checked while the crane was locked out, it would have been necessary to restart the crane

engine prior to replenishing the antifreeze. Loewendick’s position that these extra steps

would not reduce the hazard to the employee is well taken.

   Moreover,      the standard    prohibits “[t]he use of any machinery,              tool, material,   or

equipment which is not in compliance with any applicable requirement of this part....”

(Emphasis supplied.) Here the Secretary has cited Loewendick for performing maintenance,

rather than using the equipment. And none of Loewendick’s alleged failures to comply with

applicable requirements relating to the crane which the Secretary raised in her citations

would have, if true, made this maintenance more hazardous. I conclude that the checking -

and replenishing of the antifreeze while the crane was operational did not violate 6

1926.20(b)(3). Citation 1, Item 3, is vacated.

   Ba        Failure to Develop a Hazard                Communication      Program      - 29 C.F.R.       Q

1926.59(ex2)(i), (ii). and (iii).

Citation 1, Item 4 directed to Loewendick charges a failure to develop a method: 1)

to ensure that Material Safety Data Sheets (MSDS)81 were available to V&G (Item 4a),

2) to inform V&G of information and precautionary measures for hazardous materials (Item

4b), and 3) to inform V&G of the labeling system used (Item 4c). Originally raised as a

serious citation, this item was reduced to other than serious prior to the hearing and the

proposed penalty was reduced to $00.

The standard in question, 29 C.F.R. 51926.59(e)(2)(i), (ii), and (iii), provides that:

81Material safety data sheets describe the hazard of the material, emergency numbers, information about protective clothing and precautions, and where to get medical assistance. Tr, 283.
 -37-

Employers who produce, use, or store hazardous chemicals at a workplace in such a way that the employees of other employer(s) may be exposed (for example, employees of a construction contractor working on-site) shall additionally ensure that the hazard communication programs developed and implemented under this paragraph (e) include the following:
(i) The methods the employer will use to provide the other employer(s) with a copy of the material safety data sheet, or to make it available at a central location in the workplace, for each hazardous chemical the other employer(s)’ employees may be exposed to while working;
(ii) The methods the employer will use to inform the other employer(s) of any precautionary measures that need to be taken to protect employees during the workplace’s normal operating conditions and in foreseeable emergencies; and
(iii) The methods the employer will use to inform the other employer(s) of the labeling system used in the workplace.

Mr. Persinger testified that Loewendick used or stored lubricants, diesel fuel, and

acetylene at the worksite? It is not disputed that the worksite was a multi-employer -

worksite, where both V&G and Loewendick were present. Accordingly, 29 C.F.R.

51926.59(e)(2) applies to Loewendick.

The Secretary asserts that Loewendick was in violation of this regulation because it

had not developed a methodafor sharing MSDS with V&G, had not developed a method to

inform V&G of necessaryprecautionarymeasures to protect employees from hazardous

chemicals, and had not developed a labeling system for all chemicals used on the worksite.

Mr. Persinger testified that he asked Mr. Keith, the superintendent for Loewendick, whether

Loewendick had a method for sharing MSDS or precautionary measures with V&G, and Mr.

Keith could not identify such a method. Mr. Persinger also testified that not all of the

containers used to store lubricants, diesel fuel, and acetylene were labeled? Mr. Keith

82Tr. 75.

8?r. 72-75.
 -380

testified that he gave some MSDS to V&G, but he couldn’t say which ones were shared.

He also testified that Loewendick held weekly safety meetings but that V&G employees

were not required to attend? John Jones, V&G’s job superintendent, testified only that

V&G had some of Loewendick’s MSDS.=

The Secretary asserts that, by not developing a method for sharing information, and

by not labelling all hazardous chemicals, Loewendick exposed other employees working on

the site to unidentified chemical hazards. Thus, the Secretary urges, employee exposure is

established. The Secretary also urges that Loewendick knew or should have known of the

requirement for a plan governing the sharing of information on hazardous chemicals.

Indeed, the Secretary points out that the fact that Loewendick gave some of this information -

to V&G indicates knowledge. However, it is undisputed that no method was in place

providing for the systematic sharing of this information.
hwendick regards the sole issue presented by this item to be whether a method for

sharing existed. It believes it to be unimportant under the standard whether each employer

had all of the data sheets of the other, pointing out that if they did, there would no longer

be a necessity to have a method to share them. It believes that the testimony of V&G’s job

superintendent, John Jones, establishes that a method for sharing existed.

Q Did he (Persinger) discuss any issues about sharing information on material data sheets?

A Yes, he did.

Q What did you tell him.

84Tr.283-84.

85Tr. 200.
 -39,

A I told him me and Harry would share the sheet, you know, and corresponded with one an other about it.

Q Did you have Loewendick’s MSDS sheets?

A I had some of them, yes.

Q And did they have any of yours?

A Possibly so. They were available to them.

Q When was this discussed, where would they be available?

A Pardon?

            Q        When did you discuss this, sharing of communication        data sheet?

A Off and on, all the time?

The testimony of Messrs. Keith and Jones does not establish that a method for

sharing information existed. Rather, it shows that information was shared on a haphazard

basis. The standard requires that an employer must formulate and follow at least some

minimal plan for sharing information. Citation 1, Items 4a, 4b, and 4c, are affirmed as an

other than serious violation for which no monetary penalty is assessed.87

V. FINDINGS OF FACT

All facts relevant and necessary to a determination of the contested issues have been

found specially and appear in the decision above. See Rule 52(a) of the Federal Rules of

86Tr. 200.

87Loewendick has not put forth a defense to the charge that it failed to label containers of hazardous chemicals stated in Item 4c.
-4o-
9

Civil Procedure. All proposed findings of fact and conclusions of law inconsistent with this

decision are hereby denied.

VI . CONCLUSIONS OF LAW

A Respondents were at all times pertinent to this decision employers within the

meaning of 0 3(S) of the Occupational Safety and Health Act of 1970, 29 U.K. 08 651 -

678 (1970).

B. The Occupational Safety and Health Review Commission has jurisdiction over

the parties and subject matter.

   C. The Secretary of Labor failed to establish by a preponderance      of the evidence      -

that Loewendick Contractors breached the standard at 29 CFR 5 1926.20(b)(3) as recited

in Citation 1, Item 3.

D l The Secretary of Labor established by a preponderance of the evidence that

Loewendick Contractors breached the standard at 29 CFR 0 1926.59(e)(2)(i), (ii), and (iii)

as recited in Citation 1, Item 4a, 4b, and 4c. A civil penalty of $00 is appropriate.

E l The Secretary of Labor failed to establish by a preponderance of the evidence

that Loewendick Contractors breached the standard at 29 CFR 6 1926.251(a)( 1) as recited

in Citation 1, Items 5a and 5b.

F. The Secretary of Labor failed to establish by a preponderance of the evidence

that Loewendick Contractors breached the standard at 29 CFR 0 1926.550(a)(l) as recited

in Citation 1, Items 6.
 -41-

G. The Secretary of Labor established by a preponderance of the evidence that

Loewendick Contractors breached the standard at 29 CFR 0 1926.550(a)(12) as recited in

Citation 1, Item 7. A civil penalty of $625 is appropriate.

H. The Secretary of Labor failed to establish by a preponderance of the evidence

that Loewendick Contractors breached the standards at 29 CFR 5 1926.550(b)(2) and (a)(5)

as recited in Citation 1, Items 8a and 8b.

I. The Secretary of Labor established by a preponderance of the evidence that

Loewendick Contractors breached the standard at 29 CFR 6 1926.550(a)(14)(i) as recited

in Citation 2, Item 1. A civil penalty of $00 is appropriate.

J. The Secretary of Labor failed to establish by a preponderance of the evidence -

that Loewendick Contractors breached the standards at 29 CFR § 1926.550(b)(2) as recited

in Citation 3, Item 1.

K The Secretary of Labor failed to establish by a preponderance of the evidence

that Vecellio & Grogan, Inc., breached the standards at 29 CFR 8 1926.550(b)(2) as recited

in Citation 2, Item 1.

VII. ORDER

Based on the above findings of fact and conclusions of law, it is hereby ORDERED

that:

A Item 7 of Citation 1 is affirmed as a serious violation of the Act;

B. Items 4a, 4b, and 4c of Citation 1 and Item 1 of Citation 2 are affirmed

as other than serious violations of the Act; and
 -420

C0 A total civil penalty of $625 is assessed.

Dated: J/M 2 b 1993
Washington, D.C.