Jensen Road Company

Plain-English summary

Jensen Road Company used a scaffold attached to a crawler crane boom to position employees beneath a bridge deck while they removed plywood forms. OSHA alleged that this use violated the crane manufacturer's specifications and limitations. The manufacturer's notices warned that the crane was not intended as a personnel hoist, but they also described modifications and capacity limits for personnel lifting. Judge Ken S. Welsch found that the notices did not specifically address Jensen Road's crane, the manufacturer's manual was not introduced, and the Secretary did not show that required modifications were absent. Because the Secretary did not prove noncompliance with the manufacturer's specifications, the serious citation and proposed $700 penalty were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(1)
• Outcome: Serious crane-operation citation vacated; no penalty assessed.
• Key point: General and ambiguous manufacturer notices did not prove that a specific crane and attachment violated the manufacturer's specifications or limitations.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v OSHRC Docket No. 98-1017
Jensen Road Company,
Respondent.

APPEARANCES

           Oscar L. Hampton, III, Esq.                           Lynette Rasmussen, Esq.
           Office of the Solicitor                               Jensen Road Company
           U. S. Department of Labor                             Des Moines, Iowa
           Kansas City, Missouri                                         For Respondent
                    For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                 DECISION AND ORDER
   Jensen Road Company (Jensen Road) is a highway construction contractor from Des

Moines, Iowa. On May 13, 1998, the Occupational Safety and Health Administration (OSHA)
inspected Jensen Road’s bridge construction project in Lincoln, Nebraska. As a result of the
OSHA inspection, Jensen Road received a serious citation on May 15, 1998, for violation of
§ 1926.550(a)(1). Jensen Road timely contested the citation.
The citation alleges that Jensen Road failed to comply with the manufacturer’s
specifications and limitations applicable to the operation of a crawler crane by installing a boom
tip scaffold to hoist employees. The citation proposes a penalty of $700.
The case was designated for EZ Trial proceedings pursuant to Commission Rules of
Procedure, § 2200.200, et. seq. The parties stipulated jurisdiction and coverage (Tr. 5;
Prehearing Conference Order).
 Page Two
The hearing was held in Omaha, Nebraska, on September 3, 1998. The parties filed post-
hearing statements of position. Jensen Road argues that it complied with § 1926.550(a)(1), and
the crane was suitable for handling a boom tip scaffold.1 For the reasons stated, the violation of
§ 1926.550(a)(1) is vacated.
Background
From its offices in Des Moines, Iowa, Jensen Road is engaged in the highway construction
business (Tr. 198). Jensen Road, in business since the early 1900’s, employs approximately 30
employees (Tr. 83). In 1997 Jensen Road contracted to build two bridges in Lincoln, Nebraska.
The general contractor was Hawkins Construction. There were approximately 10 Jensen Road
employees working on the bridge project (Tr. 199).
To construct the concrete bridge decking, Jensen Road used plywood formwork. After
the concrete hardened, a crawler crane with an attached boom tip scaffold was used to assist
employees in removing the plywood formwork from underneath the bridge decking (Tr. 54, 200).
The bridge was approximately 18 feet above a dry dirt road (Tr. 68, 92).
The boom tip scaffold made by Jensen Road had a metal platform with handrails around
the perimeter (Exhs. C-1, R-3; Tr. 49, 166). The scaffold was bolted to the boom of a 50-ton
Series 5299 crawler crane manufactured by the American Crane Corporation (Tr. 47, 172).
To remove the plywood formwork, the crane operator lowered the boom to allow two
employees to enter the scaffold. The scaffold was then raised into position, parallel to the ground.
When positioned underneath the bridge, the two employees removed the plywood formwork.
After the employees removed no more than five sheets of plywood, the scaffold was lowered to
the ground and the plywood taken off. The process was repeated until the formwork was
removed from underneath the bridge (Tr. 170-171).
On May 13, 1998, after receiving a referral complaint alleging that employees were
working from a boom tip scaffold, safety compliance officer Douglas Schneider inspected the
bridge project located at 180 Project Salt Creek Bridge, Lincoln, Nebraska (Tr. 13, 43). Jensen
Road was almost finished with its work on the project (Tr. 72, 199). Compliance officer
Schneider did not observe

   1
    Jensen Road’s assertion of a greater hazard defense was withdrawn (Tr. 205)

Page Three
the boom tip scaffold in use (Tr. 45). He was told that the scaffold was last used a week prior to
the inspection, and its use complied with a 1974 variance2 from the State of Iowa (Tr. 20-21, 80).
Discussion
The Secretary has the burden of proving a violation.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the
applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (i.e., the employer either
knew or, with the exercise of reasonable diligence, could have
known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Jensen Road does not dispute the application of § 1926.550(a)(1) to its use of the boom
tip scaffold on the crawler crane (Tr. 192). Jensen Road stipulates that if a violation is found,
employees were exposed to a hazard by riding in the boom tip scaffold and Jensen Road was
aware of the use of the boom tip scaffold at the bridge project (Tr. 5-6; Prehearing Conference
Order). Jensen Road constructed the boom tip scaffold and attached it to its crawler crane so that
employees could remove the plywood formwork from underneath a bridge deck (Tr. 166, 169).
The employees worked at approximately 18 feet above the ground to remove the plywood (Tr.
92).
Jensen Road agrees that the only issue to be determined is whether the terms of
§ 1926.550(a)(1) were violated (Tr. 9; Jensen Road’s Written Statement, p. 2).
Section 1926.550(a)(1)
Section 1926.550(a)(1) requires that:
The employer shall comply with the manufacturer’s specifications
and limitations applicable to the operation of any and all cranes and
derricks. Where manufacturer’s specifications are not available, the
limitations assigned to the equipment shall be based on the
determinations of a qualified engineer competent in this field and
such determinations will be appropriately documented and
recorded.

    2
      Iowa is a state plan state pursuant to § 18 of the Occupational Safety and Health Act. Jensen Road does

not argue the variance applies to its bridge project in Nebraska. A copy of the Iowa variance was not made part of
the record.
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Attachments used with cranes shall not exceed the capacity, rating,
or scope recommended by the manufacturer.

   Section 1926.550(a)(1) requires an employer to comply with the manufacturer’s

specifications and limitations in the way its crane or derrick is used and maintained. The
Secretary asserts that Jensen Road failed to follow the manufacturer’s specifications and
limitations when it attached a boom tip scaffold to its crawler crane. The boom tip scaffold was
made by Jensen Road and was attached for use with a crawler crane manufactured by American
Crane Corporation.
Jensen Road argues that it complied with the specifications and limitations of the crane
and, as the manufacturer of the boom tip scaffold, its capacity, rating or scope were not exceeded
(Tr. 9). Jensen Road also asserts that the third sentence of § 1926.550(a)(1) refers to the
manufacturer of the attachment and not the manufacturer of the crane.

Interpreting § 1926.550(a)(1)
A safety standard is generally construed liberally to allow broad coverage in carrying out
the congressional intent to provide safe and healthful working conditions. A standard must be
interpreted in a reasonable manner consistent with a common sense understanding and viewed in
context, not in isolation. Objective criteria, including the knowledge and perceptions of a
reasonable person, is used to give the regulation meaning. American Bridge Company, 17 BNA
OSHC 1169, 1172 (No 92-0959, 1995). The Secretary’s reasonable interpretation is entitled to
substantial deference.
Section 1926.550 applies to the operation of cranes and derricks. It places a duty on an
employer to comply with the crane manufacturer’s specifications and limitations applicable to the
operation of the crane. If the crane manufacturer’s specifications and limitations are not available,
only then is an employer permitted to rely on documented limitations determined by a qualified
engineer. There is no showing that the crane’s specifications and limitations were not available.
Kelly Sears, Jensen Road’s loss control officer, testified that if a manufacturer of a crane prohibits
the use of its crane to hoist personnel and an employer uses the crane to hoist personnel, the
employer violated the manufacturer’s specifications (Tr. 193).
Jensen Road argues that the last sentence of § 1926.550(a)(1) regarding attachments used
with cranes directs an employer not to exceed the capacity, rating, or scope recommended by the
 Page Five
manufacturer of the attachment. Since Jensen Road made the boom tip scaffold, it argues that it
did not exceed the scope of the scaffold.
Jensen Road’s argument regarding the standard’s third sentence is misplaced. The
Secretary does not argue that the capacity, rating or scope of the boom tip scaffold was
exceeded.3 The term “manufacturer”is used three times in § 1926.550(a)(1). The standard does
not define manufacturer. However, the first two times the term “manufacturer” is used, it clearly
refers to the manufacturer of the crane. Even if the third sentence refers to the manufacturer of
the attachment, the standard read as a whole also requires that the attachment such as the boom
tip scaffold comply with the “specifications and limitations” of the crane. For the purposes of this
decision, it is not necessary to interpret the third sentence and decide whether “manufacturer”
refers to the crane manufacturer or the attachment manufacturer. Although the scaffold made by
Jensen Road did not exceed the scaffold’s “capacity, rating or scope,” Jensen Road is not relieved
of ensuring that the scaffold complied with the specifications and limitations set for the crawler
crane by the crane’s manufacturer, American Crane Corporation.

Compliance with § 1926.550(a)(1)
The Secretary asserts that the use of the boom tip scaffold is not permitted by the crane
manufacturer, American Crane Corporation. The parties agree that the primary purpose of a
crawler crane is material handling (Tr. 28, 100). To show that the crawler crane is not to be used
to hoist personnel, the Secretary offers two notices from American Crane Corporation.4
The first notice, dated August 23, 1993, is a “typical” letter sent by American Crane,
presumably to customers or distributors of its cranes regarding the use of the boom tip scaffold
(Tr. 24-25). The letter is not addressed or signed. It appears to originate from the service
department. The letter states in part that “the use of such a device [boom tip scaffold] is not the

     3
       However, the record shows that the boom tip scaffold used by Jensen Road did not meet the design

specifications for a boom tip scaffold as outlined by John Hart Engineering in 1974. Sears testified that the stop
switch used to prevent employees from being crushed by the underside of the bridge was not on the scaffold and
had not been affixed to the scaffold while it was used on the bridge project (Tr. 183-185). Sears agreed that the
scaffold did not comply with the 1974 Iowa variance (Tr. 186).

     4
       The notices were admitted into evidence despite inadequate authentication. See John H. Quinlan, d/b/a

Quinlan Enterprises, 1994 CCH OSHD ¶ 30,422 (No. 93-817, 1994). The rules of evidence do not apply to EZ
trial proceedings. However, to avoid prejudice, the record was left open for Jensen Road to supplement the record
with information challenging the notices (Tr. 204, see Rule 803(24), Fed. R. Evid). After the hearing, Jensen
Road decided not to supplement the record (Order dated Sept. 16, 1998).
 Page Six
intended purpose of a crane; therefore, it is not within our scope of authority to approve or
disapprove of its use” (Exh. C-2). The letter concludes that “American Crane does not accept
any liability derived from use of the crane with the boom tip scaffold.”
The second notice, identified as Customer Service Bulletin No. 265, dated July 22, 1991,
(Exh. C-4) states in part:
WARNING!
This machine (crawler, truck, wagon and pedestal cranes) is not
intended to be used as a personnel hoist! If such use is allowed by
local, state or federal regulations, the owner or user is responsible
for complying with such regulations and any other applicable
requirements.

The warning, however, also advises the user, if the crane is used to hoist personnel, to modify or
equip the crane with an over hoisting device and a single lever control.
There is no evidence that Jensen Road received or was aware of either notice. Also, there
is no showing that either notice specifically related to the Series 5299 crawler crane used by
Jensen Road or that Jensen Road failed to make the recommended modifications to the crawler
crane.
In addition to the notices, the compliance officer testified to his conversations with Don
Albert, chief engineer of American Crane Corporation (Tr. 23). Albert told the compliance
officer that “he never approved one for the use of their type of equipment that he was aware of”’
(Tr. 63). The statement by Albert is hearsay and not given weight. His alleged statement is vague
and ambiguous. It is unclear whether Albert had the authority or responsibility for approving the
use of boom tip scaffolds. Albert was not called to testify or his affidavit offered into the record.
Also, the compliance officer concedes that Albert’s statement is not consistent with the letter of
August 23, 1993 (Exh. C-2; Tr. 62).
Based on a review of the notices and statement of Albert, the Secretary fails to show by a
preponderance of the evidence that the boom tip scaffold was not within American Crane
Corporation’s specifications and limitations for use of the crawler crane Series 5299. The
Secretary has the burden of proving that the terms of the standard were violated.
The two notices, if read as a whole, are ambiguous and are subject to different reasonable
interpretations. Although stating that its crane is not intended to be used as a personnel hoist, it
appears that American Crane does recognize the use. The notices recommend modifications to be
made for hoisting personnel. It was not shown which specifications and limitations were not
 Page Seven
complied with by Jensen Road. The manufacturer’s manual was not offered to show the crane’s
specifications and limitations.
The record is unclear whether American Crane prohibits the use of the crawler crane for
hoisting personnel by a boom tip scaffold. American Crane advises against the use of its crane to
hoist personnel unless the cranes are specifically modified to ensure the safety of the employees.
There is no showing that the crane used by Jensen Road was not so modified. The standard does
not require an employer to obtain the approval of the manufacturer. It requires that the employer
comply with the manufacturer’s specifications and limitations.
The two notices from American Crane Corporation do not specifically refer to the Series
5299 crawler crane used by Jensen Road in 1998. The notices were dated in 1991 and 1993 and
do not identify the crane. It was not established that the notices still applied in 1998. The notices
by American Crane Corporation appear not to prohibit the use of the boom tip scaffold. In the
August 23, 1993, letter (Exh. C-2), American Crane states:
[I]t is our opinion that the attachment [boom tip scaffold]
arrangement as shown in the photos you have supplied will not
cause any damage to the crane boom itself which would render it
unfit for future lifting crane service. It is not possible for us to
comment on the stability margins or strength margins of cranes as
they relate to the requirements for the type of equipment which you
have proposed. (Exh. C-2)

    Similarly, the 1991 warning notice from American Crane Corporation also suggests

modifications to the crane to make it suitable for hoisting personnel (Exh. C-4). It cautions
customers that “the total weight of the lifted load (including personnel) shall not exceed 50% of
the crane rating with the machine equipped as above.” By entering into a discussion of the
specifics of the scaffold and the capacity of the crane, it is unclear whether American Crane is
recognizing the use of a boom tip scaffold within the crane’s scope of operation. American
Crane’s restrictive language relating to liability is limited to not accepting responsibility and not to
the design specifications and limitations of the crane.
The Secretary does not dispute that the 50-ton crawler crane was capable of supporting
the boom tip scaffold (Tr. 8). There is no argument that the boom tip scaffold’s capacity and
rating were exceeded. The compliance officer acknowledges that he did not inspect the boom tip
scaffold by measuring its component parts or examining its physical appearance (Tr. 45-46, 49).
At the time of the inspection, the compliance officer also did not know the size of the crane and
did not ask about
 Page Eight

the crane’s capacity and rating. He was unaware of the crane’s specifications and limitations.
There is no showing that he obtained a copy of the crane’s operation manual.
The Secretary also does not argue that the use of the boom tip scaffold affected the safe
operation of the crane (Tr. 8). The record is unclear whether American Crane believed the use of
a boom tip scaffold was outside the scope recommended for the crane. By discussing the
specifics of the scaffold and crane’s capacity, American Crane appears to recognize the use within
the crane’s operation. The Secretary did not have a representative of American Crane to testify
and clarify the ambiguity. Without clarification from the crane manufacturer, the Secretary failed
to meet her burden of proof.
The court, however, is concerned about the use of a boom tip scaffold on a crane
manufactured to hoist material. The scaffold did not have a stop switch to prevent employees
from being crushed by the underside of the bridge. However, this was not the alleged violation.
A violation of § 1926.550(a)(1) is not supported by the record.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER
    Based upon the foregoing decision, it is ORDERED that:
    Serious citation No. 1, Item 1, alleging violation of § 1926.550(a)(1), is vacated.




                                          KEN S. WELSCH
                                          Judge

Date: October 13, 1998