A.H. Beck Foundation Company, Inc.

Plain-English summary

A.H. Beck used a modified Northwest Model 41 machine to drill foundation piers and to lift reinforcing steel and casing into the holes. OSHA cited the company for failing to barricade the machine's rotating swing radius under the construction crane standard. The judge treated the machine as a crane because it performed lifting work and assessed $160. The Commission held that lifting alone was insufficient and looked to the incorporated ANSI crane code, which excluded draglines and required crane configuration and characteristics. Because the machine began as a dragline and had been extensively modified as a drilling rig without proof that it acquired the operating machinery of a crane, the Secretary did not prove the standard applied. The Commission vacated the citation and penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(9)
• Outcome: Serious swing-radius citation and $160 penalty vacated.
• Key point: A machine that sometimes lifts loads is not covered as a crane unless its configuration and operating characteristics also make it a crane.

Full text (OSHRC public release)

Docket No. 83-0928

SECRETARY OF LABOR,

Complainant,

v.

A.H. BECK FOUNDATION COMPANY, INC.,

Respondent.

OSHRC Docket No. 83-0928

DECISION

Before:  BUCKLEY, Chairman, and WALL,
Commissioner.

BY THE COMMISSION:

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

OSHA issued a citation alleging that A.H. Beck
Foundation Company violated the crane safety standard at 29 C.F.R. � 1926.550(a)(9).
  The standard requires that "[a]cessible areas within the swing radius of the
rear of the rotating superstructure of the crane . . . shall be barricaded in such a
manner as to prevent an employee from being struck or crushed by the crane."
 There is no dispute that the swing radius of a machine operated by Beck was
unguarded.  Beck argues, however, that the standard does not apply because the
machine is not a crane.

I.

Beck specializes in the drilling of piers for the
foundations of large buildings.  On August 18, 1983, it was operating at a
construction site in San Antonio, Texas, when a compliance officer ("CO") of the
Occupational Safety and Health Administration inspected the worksite.  The CO
observed a machine owned and operated by Beck.  The machine had a cab mounted on
crawler tracks, with a boom attached to the front of the cab.  It was a Northwest
Model 41, manufactured by the Northwest Engineering Company of Green Bay, Wisconsin.
  The basic model can be used with any of several different attachments as a crane, a
dragline, a shovel, or a backhoe.  The CO saw the machine lifting reinforcing rods
("rebars") and placing them into the pier holes before the concrete was
poured.  He testified that the machine also was used to lift steel casing or linings
into the holes.  The CO thought that the machine was a crane.  Although the
machine had an attachment for drilling, the CO stated that the basic structure of the
machine was that of a crawler crane.

Beck's president testified that the machine was not a
crane but a foundation drilling rig.  He had originally purchased the Northwest Model
41 with dragline attachments and had had the manufacturer make several modifications to
permit the machine to operate as a drilling rig.  The modifications that were made to
the machine diminished its ability to do precision lifting or lowering, so that it cannot
set a load down gently.  Mr. Beck testified that the boom on the machine is not the
"basic" boom, but the boom designed for dragline work.  Mr. Beck further
testified that he himself had designed the drilling table for the machine, had bought most
of the components for the drilling attachment, and had built parts of it himself.

Administrative Law Judge Dee C. Blythe held that the
machine was a "crane."  He concluded that under the Commission precedent at
the time, the determining factor in whether the standard applies is the use of the
machine.  Because Beck's machine was used to lift rebars and casings and to lower
them into the pier holes, the judge concluded that it was a crane within the meaning of
the standard.  He also noted that the machine had the configuration of a crawler
crane, with a boom, a cab, and tracks.

On review, Beck asks us to reverse the judge's
decision because the machine's primary function was drilling pier holes, and any lifting
that it did was merely incidental to that function.  Beck relies on the view of
Commissioner Barnako in Concrete Construction Co ., 80 OSAHRC 7/E4, 9 BNA
OSHC 1278, 1280 n.4, 1981 CCH OSHD � 25,156, p. 31,054 n.4 (No. 77-2480, 1981), that a
machine is not a crane if its primary use is not as a lifting device.

The Secretary argues that the "primary
function" test urged by Beck is inappropriate.  The test should not be whether
lifting is "primary" or "incidental" because one machine might be
covered by the standard while an identical machine doing a different job would not be.
 The Secretary argues that this result is anomalous, since both machines present the
same hazard.  The Secretary argues also that the lifting Beck's machine performed was
not incidental to the actual drilling operation but was a separate lifting operation
performed after the hole had been drilled.  The Secretary also asserts that, despite
its modification for use in drilling, Beck's machine retained the fundamental
characteristics of a crane.  The Secretary argues that a machine should not be
considered outside the coverage of the standard simply because it is rigged to do things
besides lift, such as drill.

II.

After Judge Blythe's decision was issued, we
re-examined the test for determining what a "crane" is within the meaning of
section 1926.550.  In Lisbon Contractors, Inc ., 84 OSAHRC 19/A2, 11 BNA OSHC
1971, 1984-85 CCH OSHD � 26,924 (No. 80-97, 1984), we observed that the crucial term
"crane" is not defined anywhere in section 1926.550.  To shed light on the
proper construction of section 1926.550, we looked to American National Standards
Institute (ANSI) B30.5-1968, Crawler, Locomotive and Truck Cranes , which
section 1926.550 four times incorporates by reference.  We concluded from the ANSI
standard that a machine is not a crane just because it is sometimes used to lift
things.  In concluding that a machine must have the configuration and characteristics
of a crane, as well as be used to perform the functions of a crane, we relied heavily on
the provisions of ANSI B30.5-1968.  We do so again.

Section I of the introduction to ANSI B30.5-1968 provides:

This Code applies to the construction, installation,
inspection, maintenance, and operation of jacks; power-operated cranes; crane runways;
power-operated and manually operated derricks and hoists; power-operated overhead hoists
and their runways; and slings.

This Code does not apply to any crane, derrick, or
hoist having a maximum rated capacity of one ton or less, or to railway or automobile
wrecking cranes, skip hoists, hoist-like units used for horizontal pulling only, mine
hoists, conveyors, or to shovels, dragline excavators of back hoes, or to equipment
within the scope of USA Standards Committee A92 Mobile Scaffords, Towers, and Platforms.
 Within the above limitations this Code also shall be applied to cranes, derricks,
and hoists used on construction work.  [Emphasis added.]

Thus, if Beck's machine were still a dragline, it would not be a "crane" within
the purview of the standard.  Because Beck's machine had been extensively modified,
however, we must determine whether a preponderance of the evidence shows that these
modifications converted it into a crane.  If the preponderance of the evidence does
not so show, then the citation must be vacated, for the burden of proving the
applicability of a standard is on the Secretary.  See Howard Barthelmass Painting
Co ., 81 OSAHRC 84/E1, 9 BNA OSHC 2160, 2162, 1981 CCH OSHD � 25,636, pp. 31,978-79
(No. 78-5450, 1981).  For the following reasons, we are not convinced that Beck's
machine is a crane.

Section 5-0.2.1.1 of the ANSI standard defines a
crawler crane as "[a] crane consisting of a rotating superstructure with power plant,
operating machinery, and boom, [and] mounted on a base. . . . its function is to hoist and
swing loads at various radii."  Beck's machine clearly meets two of these
criteria.  It has a rotating superstructure with a power plant and is mounted on a
base.  It also has operating machinery but the record does not show that Beck's
machine used or was modified to use operating machinery that cranes are typically equipped
with--brakes, load or hoist blocks, hooks, slings, shackles, etc.  See sections
5-0.2.2.25 and 5-1.1.1.b.5 of ANSI B30.5-1968.  On the contrary, the record shows
only that Beck's machine had been modified to use, and did use, a drilling rig as its
operating machinery.  Beck's other modifications merely facilitated the use of that
rig.

The Secretary relies heavily on the fact that Beck's
machine has the configuration of a crane because it has a boom.  He points to Lisbon
Contractors , where the absence of a boom was one factor in our determination that the
machine cited was not a crane.  The Northwest Model 41 is a multi-purpose power plant
that is adaptable for use as a crane or for use as machines that are specifically excluded
from ANSI B30.5-1968.  It is therefore not surprising that Beck's machine has several
of the features of a crane, such as a boom.  But while the absence of a boom is
dispositive in determining that a machine is not a crane, the presence of a boom does not,
by itself, establish that a machine is a crane.  Some machines explicitly excluded
from coverage have booms, for example, draglines.  Indeed, Beck's machine still has a
dragline boom.  Nor does the Secretary's argument find support in the language of
section 5.0-1 of the ANSI standard, which provides that the standard applies to crawler
cranes "and any variations thereof which retain the same fundamental
characteristics."  As we understand the word "retain," it means that a
machine that starts as a crane and is modified, but keeps the basic characteristics of a
crane, remains covered by the standard.  Since Beck's machine started out not as a
crane but as a dragline, however, it could not "retain" the characteristics of a
crane.

The Secretary argues that the use of the machine for
lifting brings it within the purview of the standard, emphasizing that the lifting done by
Beck's machine was performed separately, after the drilling of the hole had been
completed.[[1]]  The Secretary's reliance on these facts is misplaced, however, since
other machinery that is specifically excluded from the coverage of the ANSI standard
performs a lifting function.  See ANSI B30.5-1968, Introduction, Section 1,
quoted above.  As we held in Lisbon , the use of a machine for lifting does not
make it a "crane" if it does not have configuration of a crane.

The Secretary has argued that we should focus on the
hazard posed by a machine rather than operations it is rigged to perform.  The
Secretary's argument would be more persuasive if the ANSI standard, which is incorporated
by reference into the OSHA standard, did not explicitly exclude draglines, backhoes, and
power shovels, which all create the same hazard of swinging superstructure as cranes.
  The creation of a similar hazard therefore does not determine whether the standard
applies.

The Secretary's brief states in a lengthy footnote
that he "does not agree that Lisbon Contractors was correctly decided."
 In implicitly inviting us to re-examine that decision, the Secretary argues in part
that "the Commission need not guess at OSHA's intent and underlying policy decisions
[in section 1926.550] since the Secretary has repeatedly stated what that intent is."

The Secretary's arguments against Lisbon ,
however, ignore the only reliable evidence of what the drafters of the standard intended,
and fail to present any countervailing contemporaneous interpretation.  The Secretary
relies solely on legal arguments urged by the Solicitor of Labor in this and prior briefs.
 See Investment Company Institute v. Camp , 401 U.S. 617, 626-628 (1971)
(counsel's efforts in litigation are "hardly tantamount to an administrative
interpretation" of a statute); New England Telephone & Telegraph Co. v.
Public Utilities Commission , 742 F.2d 1, 11 (1st Cir. 1984)("[The FCC's]) views
here do not reflect agency policy reached after debate among staff or commissioners.
  Rather, as far as we can tell, they simply represent the General Counsel's
interpretation of the statute; they are contained only in his brief.")[[2]]

Furthermore, the interpretation of the standard
advanced in the brief on behalf of the Secretary fails to provide employers with fair
notice of their obligations under the standard.  We may not construe a standard in a
way that denies employers fair notice.  See Diamond Roofing Co. v. OSAHRC ,
528 F.2d 645, 649 ( 5th Cir. 1976).

This case was tried before Lisbon Contractors
was issued.  When there is an intervening change in precedent, we normally afford the
losing party the opportunity for a remand.  In this case, however, the Secretary
extensively argued the application of Lisbon in his brief but did not seek a remand
to present additional evidence.  We therefore see no need to delay a final
disposition of this case.

Accordingly, item 1 of citation 1 is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  JAN 20 1987

SECRETARY OF LABOR,

Complainant,

v.

A. H. BECK FOUNDATION CO., INC.,

Respondent.

OSHRC DOCKET NO. 83-0928

DECISION AND ORDER

Appearances:

Sandra D. White, Esq., of Dallas, Texas,

for the Complainant.

William W. Sommers, Esq., of San Antonio,

Texas, for the Respondent.

PROCEDURAL HISTORY

BLYTHE, Judge:

Respondent, A. H. Beck Foundation Co., Inc., is
charged with a serious violation of � 5(a)(2) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. �� 651-678 ("the Act") and the safety standard at 29 CFR
1926.550(a)(9) for failure to barricade accessible areas within the swing radius of the
counter-weight of a crawler crane with drilling attachment.  A single citation was
issued to respondent August 29, 1983, as the result of an inspection conducted August
18-19, 1983, by a safety compliance officer of the Occupational Safety and Health
Administration ("OSHA") of a workplace at Travis and St. Mary Streets in San
Antonio, Texas, where respondent was drilling piers to support two buildings to be
constructed there.  Respondent timely filed notice of contest September 9, 1983, thus
initiating this proceeding before the Occupational Safety and Health Review Commission
("the Commission") under �10(c) of the Act.  Thereafter the Secretary of
Labor ("the Secretary") filed a formal complaint, and respondent filed an answer
thereto.  Respondent's answer denied all allegations of the complaint except
Paragraph I, which asserts the jurisdiction of the Commission over the proceeding, and
that part of Paragraph II which states the location and type of respondent's
business.  It pleaded affirmatively that its safety standards are in conformity with
those of its industry and are in substantial compliance with the Act; and that the cited
standard is unenforceably vague and does not apprise it of the action, if any, it must
take to comply therewith.  However, the central issue, as litigated at the hearing
and argued in the posthearing briefs, is whether the machine in question is a
"crane" subject to the barricading requirements of � 1926.550(a)(9).  The
matter came on regularly for hearing February 24, 1984, in San Antonio.  Both parties
have filed posthearing briefs, and respondent submitted proposed findings of fact and
conclusions of law.  The matter is now ripe for decision.

DISCUSSION AND OPINION

I.  The coverage issue

Although it does not argue the issue in its brief,
respondent's answer denies the allegations of Paragraph II of the complaint that it is
engaged in a business affecting commerce, within the meaning of � 3(5) of the Act, which
provides:

The term "employer" means a person engaged
in a business affecting commerce who has employees...

"Commerce," according to � 3(3) of the
Act,

. . .means trade, traffic, commerce, transportation,
or communication among the several states, or between a State and any place outside
thereof, or within the District of Columbia, or a possession of the United States (other
than the Trust Territory of the Pacific Islands), or between points in the same State but
through a point outside thereof.

In enacting this legislation, the Congress utilized
to the maximum extent the power conferred on it by the commerce clause of the
Constitution.  It is not necessary for an employer to be engaged directly in
interstate commerce to affect it.  He may be "engaged in a business affecting
commerce" if he uses materials or equipment manufactured outside the state or even if
he uses the United States mails or interstate telephone lines.  Avalotis Painting
Co ., 81 OSAHRC 7/B1, 9 BNA OSHC 1226, 1981 CCH OSHD � 25,157 (No. 76-4774, 1981); Brennan
v. OSHRC (John J. Gordon Co. ), 492 F.2d 1027 (2nd Cir. 1974).

The machine involved in the present citation was
manufactured in Wisconsin (Tr. 47); this alone is enough to "affect commerce"
under Avalotis and John J. Gordon Co ., supra .  In addition, the
Commission has held that the construction business, per se , affects commerce
sufficiently to satisfy the requirements of � 3(5).  Clarence M. Jones d/b/a C.
Jones Co ., 83 OSAHRC ___, 11 BNA OSHC 1529, 1983 CCH OSHD � 26,516 (No. 77-3676,
1983).

II.  The alleged serious violation of 29 CFR
1926.550(a)(9)

Respondent is charged with a serious violation of 29
CFR 1926.550(a)(9) in that:

Accessible area(s) within the swing radius of the
rear of the rotating superstructure of crane(s) were not barricaded in such a manner as to
prevent employees from being struck or crushed by the crane:

(a) Crawler crane with drilling attachment had no
means to prevent entry into the swing radius of the counterweight.  Located
approximately center of excavation.

The cited standard provides:

� 1926.550--CRANES AND DERRICKS

(a) General requirements

(9) Accessible areas within the swing radius of the
rear of the rotating superstructure of the crane, either permanently or temporarily
mounted, shall be barricaded in such a manner as to prevent an employee from being struck
or crushed by the crane.

"Crane" is not defined in the standards, so
the Commission has been called upon several times to decide whether machines which
performed lifting functions, but were not typical cranes, were required to meet the
requirements for cranes.

Most of the cases have involved backhoes which were
used primarily for excavating purposes but performed some lifting functions such as
lowering pipe into a ditch.  Two early cases hold that such backhoes were not cranes
within the ambit of � 1926.550.  Felton Construction Co ., 76 OSAHRC 136/C14;
4 BNA OSHC 1817, 1976-77 CCH OSHD � 21,258 (No. 6759, 1976); Warner Brothers,
Inc ., 76 OSAHRC 138/D7, 4 BNA OSHC 1841, 1976-77 CCH OSHD � 21,257 (No. 8841,
1976).  Felton and Warner were reversed, however, by Gil Haugan
d/b/a Haugan Construction Co ., 79 OSAHRC 105/A2, 7 BNA OSHC 2004, 1979 CCH OSHD �
24,105 (Nos. 76-1512 and 76-1513, 1979), where the Commission majority held that �
1926.550(a)(1) applied to a farm tractor equipped with a front-end loader to which a
shop-made boom had been attached to lift bar joists, stating:

We hold that 29 C.F.R. � 1926.550 applies to
machines used to perform lifting functions usually performed by cranes or derricks,
whether the machines were originally designed for that purpose or not.  In making
this determination, we look to the purposes of the Act and of the standard.  The
stated purpose of Congress in enacting the Occupational Safety and Health Act, was
"to assure so far as possible every working man and woman in the Nation safe and
healthful working conditions..." 29 U.S.C. � 651(b), so the Act and standards
enacted pursuant to it must be liberally interpreted in light of the Act's remedial
purpose.  See Southern Railway Co . v. OSHRC , 539 F.2d 335, 338 (4th
Cir. 1976).

1979 CCH OSHD at p. 29,291.

Gil Haugan was followed in Tri-City
Construction Co ., 80 OSAHRC 9/F12, 7 BNA OSHC 2189, 1980 CCH OSHD � 24,267 (No.
76-4094, 1980) (235 Crawler Caterpillar with rotating superstructure--also described as a
backhoe--used to lower pipe into a ditch); and Suffolk County Contractors, Inc ., 80
OSAHRC 52/F13, 8 BNA OSHC 1506, 1980 CCH OSHD � 24,494 (No. 78-4479, 1980) (backhoe used
for unspecified lifting purposes).

In Concrete Construction Co ., 81 OSAHRC 7/D7 9
BNA OSHC 1278, 1981 CCH OSHD � 25,156 (No. 77-2840, 1981), the Commission declined to
apply � 1926.550(a)(9) to a dragline used for dredging, although it piled dredged
material, sometimes moved the piles of material, and, with substantial alterations, could
be used to lift light loads.  The Commission distinguished this case on its facts
from Gil Haugan and Tri-City , pointing out at that the dragline was not
performing work usually performed by cranes and that the modifications that would enable
it to lift light loads would take up to an entire day.  Commissioner Barneko also
pointed out in a concurring footnote that even when so modified the dragline could not
deposit loads gently and that there was no evidence the respondent had any intention of
using the machine in that mode.  Respondent relies heavily on this footnote.

The machine here involved was specially built for
drilling holes for piers to support buildings under construction, but it was constructed
on a multi-purpose chassis known as "Northwest 41" by Northwest Engineering Co.,
Green Bay, Wisconsin.  The manufacturer's brochure, Exhibit C-1, illustrates
configurations of the Northwest 41 as a crawler crane, a backhoe, and a dragline.
Respondent's machine has a rotary drilling table and auger suspended from a boom. 
The hydraulically-driven auger drills into the earth as far as 100 feet and is removed
periodically to dislodge the dirt from it.  It has a hoisting line and performs other
lifting functions, i . e ., placing large steel casings weighing up to several
thousand pounds in the hole to prevent caving and, after the hole is completed, lowering
an assembly of reinforcing steel into it preparatory to the pouring of cement (Tr. 52,
53).  After the concrete is poured, the hoisting cable is used again to pull the
casing (Tr. 54).

To Compliance Officer Bert C. Lindquist the machine
was a crawler crane with a drilling attachment (Tr. 27), while Respondent's owner, A. H.
Beck, III, insisted it was not a crane but a machine designed solely or primarily to drill
piers (Tr. 36, 38, 41).  Both are well qualified to give an opinion on this
subject.  Lindquist, in his 12 years as an OSHA compliance officer, had conducted
approximately 800 inspections, including 500 involving cranes (Tr. 27).  His position
at the time of the hearing was with OSHA's Maritime Compliance Assistance Program in
Washington, D.C., dealing mostly with cranes and their certification (Tr. 28).  He
had two years of college training in mechanical engineering (Tr. 5), worked as a
superintendent for stevedoring companies loading and unloading vessels and rail cars, and
had the usual OSHA training (Tr. 6).  Beck has a degree in civil engineering and has
been in the pier drilling business since 1977 (Tr. 41, 42).  He designed the machine
in question (Tr. 56).  And testified that, unlike a true crane, it could not use the
resistance of its engine to permit it to lower heavy loads gently but had only its brakes
to prevent a "free-fall" (Tr. 39).

Beck further testified that it would take two weeks
to convert his machine into a true crane and that even then it would not be successful as
a lifting machine because the Northwest 41 is not well adapted to that purpose (Tr. 58,
60).  However, the lifting jobs it regularly performed did not require
alteration.  The drilling table was detachable (Tr. 48), but it was not detached
before performing the lifting functions above described (Tr. 27).

Under Gil Haugen , supra , whether a
machine must be treated as a crane depends not on what it is called but on how it is used,
and a rotating-superstructure machine used for lifting functions normally performed by a
crane must have its swing radius barricaded under � 1926.550(a)(9).  Both Beck and
Lindquist testified that the machine was used to lift casings and re-bars, and Beck
testified that these loads could weigh several thousand pounds (Tr. 52, 53).  I find
that this is the normal work of a crane and that this machine is subject to �
1926.550(a)(9).

The machine has a rotating superstructure, and
Lindquist testified without contradiction it formed "scissor points" with the
machine's tracks, that a person could get caught therein, and that the result probably
would be death (Tr. 15, 29).  He also testified that there was no barricade guarding
the swing radius of the superstructure, that he would have accepted a rope barrier or a
human guard, and that respondent promised to use a "human barrier" but did not
(Tr. 14).

Respondent contends that � 1926.550(a)(9), as
applied to its machine, is unenforceably vague.  More specifically, it contends that
"barricade" is not defined, hence it has no way of knowing how to comply.
 This argument was rejected by the Commission in Concrete Construction Co. , supra .
  There the Commission pointed out that � 1926.203(a) defines a barricade or
"an obstruction to deter the passage of persons or vehicles" and that �
1926.203 adopted by reference ANSI D6.1-1971, Manual for Uniform Traffic Devices for
Streets and Highways, which depicts only physical devices such as cones, drums, saw-horses
and tripod-mounted barriers.

Therefore, the Commission held that � 1926.550(a)(9) was not unenforceably vague and,
further, that a signalman would not suffice.  Therefore, Lindquist would not have
been justified if he had accepted a "human barrier," as he said he would have.

The operator could not see to the rear, and neither
could a "spotter" positioned in front (Tr. 12).

Respondent's superintendent admitted to Lindquist
that he knew of a fatality resulting from a similar situation (Tr. 15).   This
knowledge is imputable to respondent.

The next question is whether employees were exposed
to the hazard.  Since respondent created the hazard, it is responsible for exposure
of employees of other contractors on this multi-employer worksite as well as its
own.  Anning-Johnson Co ., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD
� 20,690 (Nos. 3694 and 4409, 1976).  Actually, there is proof both ways.

Beck testified that three of his employees (a
superintendent, an oiler and a stem man or front-end man) "stay real close to the
machine all day long" and are "around and about the machine constantly"
(Tr. 54,55).

Lindquist, from a distance, saw one man jump atop a
pile of lumber to escape the rear of the machine when it backed up, but he did not learn
the man's identity or employer (Tr. 9).  The machine was in the middle of an
excavation measuring about 300 x 500 feet which was crowded with men and equipment (about
60 men, 5 concrete trucks, a bulldozer, and a backhoe), and other subcontractors'
employees were criss-crossing the area (Tr. 13, 17).  These employees at least had
access to the hazard, and that is sufficient.  Gilles & Cotting, Inc ., 76
OSAHRC 30/D9, 3 BNA OSHC 2009, 1975-76 CCH OSHD � 20,448 (No. 504, 1976); Williams
Enterprises, Inc ., 79 OSAHRC 4/B5, 7 BNA OSHC 1015, 1979 CCH OSHD � 23,279 (No.
14748, 1979).

III.  The appropriate penalty .

Section 17(j) of tie Act requires the Commission, in
assessing penalties, to consider the gravity of the violation and the employer's size,
good faith and history of previous violations.  These factors need not be accorded
equal weight, but the gravity is usually of greater significance than the others.  Colonial
Craft Reproductions , 72 OSAHRC 11/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD � 15,277
(No. 881, 1972).  Elements to be considered in determining gravity include the number
of employees exposed to the risk of injury, duration of the exposure, precautions taken
against injury, and the degree of probability of occurrence of an injury.  National
Realty & Construction Co., Inc ., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD
� 15,188 (No. 85, 1972) rev'd on other grounds , 489 F.2d 1257 (D.C. Cir., 1973).

The Secretary has proposed a penalty of $160 in this
case.  After considering the statutory criteria, I find this penalty appropriate.

FINDINGS OF FACT

On the basis of the foregoing Discussion and Opinion
and all creditable evidence of record, the following findings of fact are made:

1.  The respondent is engaged at San Antonio,
Texas, in a branch of the construction industry known as pier drilling in which it drills
holes for concrete piers to support large buildings.  It uses in this work a pier
drilling machine manufactured in the state of Wisconsin.  Respondent is engaged in a
business affecting commerce within the meaning of � 3(5) of the Act.

2.  On August 18-19, 1983, respondent was
drilling piers for two buildings at Travis and St. Mary Streets in San Antonio when its
workplace was inspected by an OSHA compliance officer.  Its pier drilling machine was
being used in the center of an excavation measuring approximately 200 x 500 feet which was
crowded with other machinery, including 5 concrete trucks, a bulldozer, and a backhoe, and
about 60 employees of other contractors.  Respondent had three employees working
closely around the machine in addition to the operator.

3.  Respondent's pier drilling machine was built
on a Northwest 41 chassis which is available in several configurations for use as a crane,
a backhoe, and a dragline.  Respondent's machine has a boom from which is suspended a
hydraulically-powered auger capable of drilling holes to a depth of over 100 feet and 18
inches to 8 feet in diameter.  It has a rotating superstructure, or
"house", mounted on continuous tracks like those of a conventional crawler
crane.

4.  Respondent's pier drilling machine was used
to perform lifting functions normally performed by a crane, including the placing of
casings and reinforcing steel in the drilled holes and pulling the casing after pouring of
concrete.  This involved lifting of loads of up to several thousand pounds.

5.  As used by respondent, the swing radius of
the machine was not barricaded in any manner.  The rotating superstructure and the
tracks provided scissor points in which an employee could be crushed.  There was a
substantial probability that death or serious physical injury could be suffered by an
employee caught in one of these scissor points.

6.  Respondent knew or in the exercise of
reasonable diligence could have known of the existence of the hazard caused by these
scissors points.

7.  A penalty of $160 is appropriate.

CONCLUSIONS OF LAW

On the basis of the foregoing findings of fact and
the entire record, the following conclusions of law are made:

1.  The Commission has jurisdiction of the
parties and of the subject matter of this proceeding.

2.  On August 18 and 19, 1983, respondent was in
serious violation of � 5(a)(2) of the Act and the standard at 29 CFR 1926.550(a)(9)

ORDER

On the basis of the foregoing findings of fact and
conclusions of law, it is ORDERED that:

1.  Item 1 of citation 1, issued to respondent
August 29, 1983, for serious violation of � 5(a)(2) of the Act and the standard at 29 CFR
1926.550(a)(9), is AFFIRMED and a penalty of $160 is ASSESSED.

2.  Respondent's proposed findings of fact and conclusions of law, to the extent that
they are inconsistent with this Decision and Order, are DENIED.

DEE C. BLYTHE

Administrative Law Judge

Dated:  June 1,1984

FOOTNOTES:

[[1]] In his brief, the Secretary specifically states
that he does not contend that the drilling operation was a function normally performed by
cranes.  He is therefore apparently conceding that, at the times the machine was
being used to drill, it was not a crane. This concession also suggests that Beck's machine
is not a crane.

In a footnote to his brief, the Secretary briefly
cites section 5-0.1 of ANSI B30.5-1968.  That section provides, "Some basic
machine types within this scope are usually convertible for excavating work and other uses
not considered to be lifting service.  The requirements of this volume are applicable
only to machines when used as lifting cranes."  The provision, however, suggests
that the machine must be "converted" in some manner between service as a lifting
crane and other service.  The record here does not show that any conversion was
performed between the drilling operation and the use of the machine to lift the
rebars.  It would be anomalous to suggest that this machine was subject to crane
standards during one portion of its work but not during another part of the same
continuous operation.

[[2]] See also Alaniz v. Office of
Personnel Management , 728 F.2d 1460, 1465 (Fed. Cir. 1984); Pitzak v. Office of
Personnel Management , 710 F.2d 1476, 1479 n.2 (10th Cir. 1983); Ames v.
Merrill, Lynch, Pierce, Fenner & Smith , 567 F.2d 1174, 1177 n.3 (2d Cir. 1977).