VP Buildings, Inc.

Plain-English summary

VP Buildings used an overhead crane to move a steel coil into a storage rack. The suspended coil contacted stored coils, two coils fell, and an employee died after being pinned beneath them. OSHA alleged that the company failed to keep a hoisted load from contacting an obstruction. Judge Nancy J. Spies interpreted hoisting under the crane standard to include upward and downward movement, but not horizontal travel. Because the parties stipulated that the load was moving downward, horizontally, or in a combination of those directions, the Secretary did not prove that the cited standard applied at the moment of contact. That item was vacated, and a separate item withdrawn by the Secretary was also vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.179(n)(3)(i) and 1910.179(n)(3)(iii)(b).
• Outcome: Both overhead-crane citation items vacated.
• Key point: Under this standard, hoisting covered vertical movement but not horizontal travel, and uncertainty about the load's direction defeated proof of applicability.

Full text (OSHRC public release)

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Secretary of Labor, ¦
Complainant, ¦
¦
v. ¦ OSHRC Docket No. 98-0183
¦
VP Buildings, Inc., ¦
Respondent. ¦
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Appearances:

      Jamison Poindexter Milford, Esquire           Mark D. Katz, Esquire
      Kayden B. Howard, Esquire                                      Ulmer & Berne, LLP
              Office of the Solicitor                                Cleveland, Ohio
              U. S. Department of Labor                              For Respondent
              Cleveland, Ohio
                        For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                      DECISION AND ORDER

      On December 18, 1997, the Secretary issued a citation to VP Buildings, Inc. (VP), alleging

two serious violations of the Occupational Safety and Health Act of 1970 (Act). The Secretary
issued the citations following an investigation, conducted by the Occupational Safety and Health
Administration (OSHA), of an employee fatality at VP=s facility on October 13, 1997. VP employee
Frederick Garton was killed when a steel coil he was transporting fell, causing another steel coil to
fall on Garton.
Item 1, which was subsequently withdrawn by the Secretary, alleged a serious violation of
' 1910.179(n)(3)(i). Item 2, which is the sole item at issue in this case, alleges a serious violation of
' 1910.179(n)(3)(iii)(b) for failing to take care during hoisting that the hoisted load did not contact
any obstructions.
VP filed a motion for partial summary judgment with regard to item 2 on April 20, 1998. The
Secretary responded and subsequent replies were filed by both parties. On June 2, 1998, the
undersigned issued an order denying VP=s motion for partial summary judgment.
On July 20, 1998, the parties filed a Ajoint stipulations of fact,@ wherein they stated the

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relevant facts in this case and agreed, in lieu of filing briefs, to rely on their arguments set forth in
VP=s motion for partial summary judgment and the subsequent responses and replies thereto. VP
stipulated that the Review Commission has jurisdiction over this case and that, if a violation is found,
the Secretary=s proposed penalty of $4,500.00 is appropriate. The parties also filed supplemental
memoranda following the July 20 filing of the joint stipulations of fact.
For the following reasons, item 2 is vacated.
The Cited Standard
Section ' 1910.179(n)(3)(iii)(b) provides:
Moving the load (iii) -- During hoisting care shall be taken that:
...
(b) The load does not contact any obstructions.

    The parties agree that the central issue is whether the cited standard applies to the cited

conditions. Specifically, the applicability issues are:
(a) Whether the horizontal and/or downward movement of the load on the
overhead crane constitutes Ahoisting@ as the term is used in 29 C.F.R.
' 1910.179(n)(3)(iii)(b).

            (b)     Whether the stored steel coils constitute Aobstructions@ as the term is
                    used in ' 1910.179(n)(3)(iii)(b).

                                         Background
    The following narrative is taken from the stipulated facts and the summary judgment

pleadings submitted by the parties.
VP manufactures metal buildings in its facility located at 2250 Lower Lake Road, St. Joseph,
Missouri. As part of its operations, VP receives coils of steel by truck.
On October 13, 1997, VP=s production leader Frederick Garton was unloading steel coils
from a flat bed trailer and transporting the coils to a coil storage area approximately 60 feet away.
VP was aware that Garton was doing this.
Garton was using a 10-ton capacity overhead crane equipped with a 72-ton capacity coil
hook. He unloaded the coils using a radio remote controller. The hook is also known as a C-hook
due to its shape. The coil that Garton was attempting to transport weighed approximately 9,245
pounds. Garton was trying to place this coil in a storage rack in a space between two other coils that

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were already in the rack. The coils in the storage rack stood on end, similar to tires. The coils were
45 to 58 inches tall, with the smallest one weighing 5,365 pounds and the largest one weighing
approximately 9,000 pounds.
There were no witnesses to the accident. The parties agree that the accident most likely
occurred when the coil on the C-hook made contact with one or both of the coils already in the
storage rack, causing the C-hook to tip forward and the coil on the C-hook to fall off.
At the time of the contact between the coil on the C-hook and the stored coils in the storage
rack, the direction of the load on the crane was either downward, horizontal, or a combination of
downward and horizontal (moving horizontally while also being lowered). The coil which fell off the
C-hook then contacted another coil at the end of the storage rack. The latter coil fell over on Garton,
and the load coil came to rest against the coil pinning his lower torso under two coils. The two coils
weighed a total of almost 15,000 pounds. Garton died as a result of the accident.
The Issue
The Secretary argues that the crane, which was moving either downward or horizontally, or
a combination of both, was Ahoisting@ the load at the time of the accident, and that the coil or coils
in the storage rack that came in contact with the coil on the C-hook were Aobstructions.@ If the
Secretary=s interpretation is correct, then VP was in violation of ' 1910.179(n)(3)(iii)(b).
VP argues that what the crane was doing at the time of the accident was Alowering@ or
Atraveling horizontally,@ separate and distinct functions from Ahoisting.@ VP also contends that the
steel coils stored in the storage rack were not Aobstructions@ within the meaning of
' 1910.179(n)(3)(iii)(b). If VP is correct on either one of these points, the standard does not apply.

                                           Analysis
   The Secretary asserts that in the context of the ' 1910.179 standard, the term Ahoisting@

means A>lifting= only when it appears in the company of >lowering,= or >lowering or traveling=@
(Secretary=s brief p. 23). All other times, the Secretary contends, the term Ahoisting@ logically means
any movement of the load while it is off the ground
VP posits that Ahoisting,@ as used in ' 1910.179(n)(3)(iii)(b), has a specific meaning. That
meaning does not include what VP=s crane was doing at the time of the accident. In support of its

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argument, VP points to the use of the word Ahoisting@ in the ' 1910.179 standard as a whole. The
standard uses the terms Ahoisting,@ Alowering,@ and/or Atraveling@ in the same sentence in several
locations.
The arguments of both parties have some merit, as well as notable defects. The difficulty with
the Secretary=s position is that interpreting Ahoisting@ to mean Araising@ some of the time, and Araising
and lowering@ or Araising, lowering and traveling@ at other times violates a basic tenet of statutory
construction.
[W]here a term is carefully employed in one place and excluded in
another, it should not be implied where excluded.

Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 648 (1976).
Applied to the instant case, a reasonable reader would conclude that where Alowering@ or
Atraveling@ are carefully employed in ' 1910.179(n)(3)(v) and excluded in ' 1910.179(n)(3)(iii)(b),
Alowering@ or Atraveling@ should not be implied in ' 1910.179(b)(3)(iii)(b). If the Secretary intended
to apply ' 1910.179(b)(3)(iii)(b) to the functions of raising, lowering and traveling, nothing prevented
the Secretary from using those terms in ' 1910.179(b)(3)(iii)(b).1
[A] regulation cannot be construed to mean what the agency may have
intended but did not adequately express.

Id., 528 F.2d at 649.
VP=s position also has flaws. Using its theory that only the upward movement of the load
constitute Ahoisting@ requires one to dissect the specific maneuvers of the movement of a load from
one resting point to another. Lifting a load upward from its resting place and moving in a vertical
direction alone would be considered Ahoisting.@ If the load arcs horizontally or is lowered during the

1
Contrast the definitions found in ' 1910.179 with the definition section of Subpart N in the construction standards
(ACranes, Derricks, Hoists, Elevators, and Conveyors@) applicable to the hoisting of personnel platforms. Section
1926.550(g)(ii)(B) provides:
Hoist (or hoisting) means all crane or derrick functions such as lowering, lifting,
swinging, booming in or out or up and down, or suspending a personnel platform.

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same relocation, it is not hoisted. Thus, following VP=s analysis, an employee moving the load often
comes in and out of the protection of the standard during a single relocation of a load. AIt is well
established that a statute or, in this case, a standard must be construed so as to avoid an absurd
result.@ Unarco, 16 BNA OSHC 1499, 1502 (No. 89-1555, 1993), citing Griffin v. Oceanic,
458 U.S. 564 (1982). Transferring a load from one point to another by crane will often require many
types of movements, including those that are downward or horizontal.
The parties seek to have the undersigned choose between alternate interpretations, neither of
which is completely convincing. In any event, the terms of the standard itself provide the
authoritative guidance to a proper interpretation of a standard.
[W]e must interpret statutes as a whole, giving effect to each word
and making every effort not to interpret a provision in a manner that
renders other provisions of the same statute inconsistent, meaningless,
or superfluous.

Lake Cumberland Trust, Inc. v. U.S. EPA, 954 F.2d 1218, 1222 (6th Cir. 1992), quoting from Boise
Cascade Corp. v. U.S. EPA, 942 F.2d 1427, 1431-1432 (9th Cir. 1991).
Section 1910.179(a)(44) defines Ahoist motion@ as Athat motion of a crane which raises and
lowers a load@ (Emphasis added). Section 1910.179(a)(42) defines Ahoist@ as a mechanical apparatus:
A[A]n apparatus which may be a part of a crane, exerting a force for lifting or lowering@ (Emphasis
added). While Ahoisting@ the word at issue is not defined in ' 1910.179, it does appear in '
1910.179(g)(5)(iv). This section requires that there be an overtravel limit in the Ahoisting direction,@
which indicates that there may be more than one Ahoisting direction.@ Giving proper weight to the
above, the term Ahoisting@ in the subject standard must be defined as the movement of a load by an
overhead crane in an upward or in a downward direction. AHoisting,@ however, is not defined as
movement of the load in a horizontal direction.
While it would be to the Secretary=s advantage to choose the most expansive definition that
is arguably applicable, ' 1910.179 cannot accommodate the Secretary=s suggested interpretation here.
It may be that the framers of the ANSI standard or those who adopted ' 1910.179 from the ANSI
standard did not consider horizontal travel to present the same degree of hazard as did raising or
lowering a load. It is unnecessary to speculate why a particular result was reached. The standard
establishes the limits of our inquiry, and the definition section of ' 1910.179 controls the issue.

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The Secretary cites Martin v. OSHRC (CF&I Steel Corp.), 449 U.S. 144(1991), which holds
that the Review Commission must give deference to the Secretary=s reasonable interpretation of an
ambiguous standard. The Secretary contends that her interpretation of Ahoisting@ to include
horizontal travel should be given deferrence under CF&I Steel. The Secretary=s argument is rejected.
AHoisting@ as used in ' 1910.179(n)(3)(iii)(b) is not ambiguous in light of the definitions applicable
to the standard. As stated, Ahoisting@ does not include moving the load horizontally.
The Secretary stipulated that the crane moved the load in a downward or a horizontal
direction at the time it contacted the roll. The Secretary has the burden to establish that the standard
applies to the activity cited. Since VP may or may not have been performing an activity covered by
the cited standard, it cannot be found that the standard has been violated.
Section 1910.179(h)(3)(iii)(b) does not apply to the cited conditions. Because of this
determination, it is not necessary to address the parties= arguments regarding the interpretation of
Aobstructions.@
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
Item 2 of the citation, alleging a violation of ' 1910.179(n)(3)(iii)(b), is vacated.

                                                   NANCY J. SPIES
                                                   Judge

Date: December 10, 1998

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Secretary of Labor, ¦
Complainant, ¦
¦
v. ¦ OSHRC Docket No. 98-0183
¦
VP Buildings, Inc., ¦
Respondent. ¦
---------------------------------------------+

                   ORDER SUPPLEMENTING DECISION AND ORDER

   Upon the request of the respondent and pursuant to Commission=s Rule 90(b)(3), the Notice

of Decision and Order issued on December 1, 1998, in this case is hereby supplemented.

   The paragraph entitled AOrder@ on page 6 of the December 1, 1998, Decision and Order, is

supplemented to include the statement that: AItem 1 of the citation, alleging a violation of
' 1910.179(n)(3)(i), was withdrawn by the Secretary on July 15, 1998, and, accordingly, is vacated.@

     SO ORDERED.

Date: December 7, 1998 Judge Nancy J. Spies
1924 Building, Suite 2R90
100 Alabama Street, S.W.
Atlanta, Georgia 30303-3104

                                                         Phone (404) 562-1640 Fax (404) 562-1650

This order has been sent to:

Counsel for Regional Litigation
Office of the Solicitor
U. S. Department of Labor
200 Constitution Avenue, N.W.
Room S. 4014
Washington, D.C. 20210

For the Secretary of Labor:
Office of the Solicitor
United States Department of Labor
1210 City Center Square
1100 Main Street
Kansas City, Missouri 64105
ATTN: Kayden B. Howard, Esquire
ATTN: Jamison P. Milford, Esquire

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