OAH Docket No. 1-1901-12054-2

MN OSHD No. 6040

OSHI No. J6947 036-98

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF LABOR AND INDUSTRY

 

 

 

Gretchen B. Maglich, Commissioner,

Department of Labor and Industry,

State of Minnesota,                                                               findings of fact,

                                                                                                conclusions of law

                                                Complainant,                         and order

 

v.

 

Carl Bolander & Sons, Co.,

 

                                                Respondent.

 

 

The above entitled matter came on for hearing before Administrative Law Judge George A. Beck at 9:30 a.m. on March 23, 1999, at the Office of Administrative Hearings, 100 Washington Square, Suite 1700, in the City of Minneapolis, Minnesota.  The record closed on April 20, 1999, the date on which the Reply Memorandums were received.

Joan M. Eichhorst, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, Minnesota 55103-2106, appeared on behalf of the Commissioner of the Department of Labor and Industry (“Complainant”).  Dawn L. Gagne, Esq., Corporate Counsel, Carl Bolander & Sons Co., appeared representing the Respondent, Carl Bolander & Sons Co. (“Respondent”), 251 Starkey Street, P.O. Box 7216, St. Paul, Minnesota 55107.

NOTICE

Notice is hereby given that under Minn. Stat. § 182.664, subd. 5, this decision may be appealed to the Minnesota Occupational Safety and Health Review Board by the employer, employee, their authorized representatives, or any party, within 30 days following the service by mail of this decision.  The procedures for appeal are set out at Minn. Rules Ch. 5215.

STATEMENT OF ISSUE

The issue in this contested case proceeding is whether the Respondent was in violation of an OSH rule requiring a barricade around the accessible areas within the swing radius of the rear of the rotating superstructure of Respondent’s crane, and if so, what penalty is appropriate.

FINDINGS OF FACT

1.         Respondent, a construction contractor, began driving pile as a subcontractor at the construction of a water treatment plant at 1900 Rice Street, St. Paul, Minnesota on approximately March 23, 1998.  On April 3, 1998, an OSH investigator conducted an inspection of the Rice Street site, including the Respondent’s work area.  Work was progressing by the use of a crane, located on a mat of timbers in the bottom of an excavation pit that was 18 feet deep.[1] 

2.                  The excavation pit where Respondent’s crane was located was approximately 70 feet by 100 feet and was very muddy from recent rains, requiring knee-high boots to navigate the immediate area around the crane.  The mat of timbers supporting the crane was about 1 foot above the bottom of the pit.[2]

3.                  In addition to the crane operator, five employees regularly worked in the excavation pit.  The employees would enter and exit the excavation by walking between the mat and the piles.  One of the employees was an oiler.  The duties of the oiler include frequent maintenance of the crane throughout the day such as checking the oil and greasing the tracks.  The oiler often needs access to the area within the swing radius.[3]  The other employees were responsible for putting the pile in place (the “pile buck” and the pile foreman) and for welding the pile.  The pile buck and the foreman worked about 15 feet from the front of the crane and the welders worked about 15 to 20 feet from the crane where the piles were already driven.  The welders were adding on to the pile to lengthen it.  The pile foreman determined the order of piling and directed the crane operator and was responsible for letting other employees know when the crane was moving.

4.                  As the crane rotates, a “pinch point” is formed between the rear counterweight and the crawler tracks, creating a risk that an employee could be caught in between.  An employee caught in the “pinch point” could potentially be crushed.  Outside the “pinch point,” the rotating counterweight could strike and injure an employee in its path.[4]

5.                  No barricade or physical barrier prevented employees from entering or passing through the 360º swing radius of the crane’s rotating counterweight.  The counterweight on the crane bore a “warning” sticker.[5] 

6.                  The crane was used for storage of tools and personal items (gas cans, ropes, jackets).[6] 

7.                  Employees working in the excavation pit communicate with the crane operator by hand signals.

8.               When the crane is driving pile it makes a substantial amount of noise.  The crane moves only when it is done driving a pile.  The pile hammer is then walked by an employee to the next pile to be driven.  The crane usually switches to a pile location on the opposite side to allow the welders to work on the pile just driven.  The crane moves at walking speed.

9.               The deep mud and the raised mat on which the crane sat made access more difficult, but did not prevent employee access to the swing radius area.

10.             The oiler temporarily marked the swing radius area by pounding stakes into the ground and stringing red “caution” tape around the perimeter while the OSH Inspector was present on April 3, 1998.  The oiler retrieved a tool from the crane in order to pound the stakes into the ground.  Respondent’s Safety Officer assured the inspector that the red tape would be replaced with a snow fence barricade. [7]

11.             After the citation was issued, the OSH Inspector conducted a second closing conference with Respondent’s Safety Officer on April 16, 1998.  Respondent had welded brackets onto the crane to string tape, creating a barricade. [8]

12.             On April 23, 1998, the Department issued a citation to Respondent alleging a violation of the federal regulation requiring a barricade around the accessible areas within the swing radius of the crane’s counterweight.  The violation was assessed as serious, and the proposed adjusted penalty was $2,400.

13.             OSHA calculates penalties for violations by assessing the severity and probability of the injury most likely to occur as a result of the violation.  The severity was rated as “E”.  The MNOSHA citation rating guide provides that a violation of the regulation governing swing radius protection for cranes has a severity rating of E where there is a potential for a crushing injury.  Any rating from “C” to “F” is classified as serious.[9] 

14.             The probability was rated a 7 based upon an assessment of the following factors:

a.  Employee exposure – 2 points

b.  Proximity of the hazard – 2 points

c.  Duration of the hazard – 2 points

d.  Work conditions – 1 point

An “E-7” unadjusted penalty is $4,000 where there is no fatality or the violation is not willful or a repeat violation.  The penalty was then adjusted by allowing the employer the maximum 30% credit for good faith (an effective safety program) and a maximum 10% credit for history (a lack of violations).[10]  The Respondent received no credit for size because it has over 250 employees.  The adjusted penalty was $2,400.

15.             Respondent subsequently filed a Notice of Contest on May 15, 1998.  A Summons and Complaint in this matter was served by the Department on the Respondent on August 6, 1998.  The Respondent filed an Answer with the Department on August 27, 1998.  The Department then served a Notice of and Order for Hearing and Notice to Employees in this matter on January 22, 1999.  The hearing date was set for March 23, 1999.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1.                  The Commissioner of Labor and Industry and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 182.661, subd. 3, 182.664 and 14.50

2.                  The Department gave proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law or rule.

3.                  The Respondent is an employer as defined by Minn. Stat. § 182.651, subd. 7.

4.                  Minn. Stat. § 182.653, subd. 3, requires each employer to comply with Occupational Safety and Health Standards or Rules adopted pursuant to Ch. 182 of the statutes. 

5.                  29 C.F.R. 1926.550(a)(9) requires that:

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.

6.                  The Complainant has the burden of establishing an OSH violation by a preponderance of the evidence.

7.                  The Complainant has established that Respondent’s employees were exposed to the hazard.

8.                  The Complainant has proved a violation of 29 C.F.R. 1976.550(a)(9).

9.                  Under Minn. Stat. § 182.651, subd. 12, a “serious violation” is a violation of any standard other than a de minimus violation which creates a substantial probability that death or serious physical harm could result from a practice, operation or process adopted in a place of employment unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation.

10.             The Complainant has proved that the violation in this matter was serious within the meaning of the above definition.

11.             Under Minn. Stat. § 182.666, subd. 6, the Commissioner has authority to assess fines giving due consideration to the appropriateness of the fine with respect to the size of the business and the employer, the gravity of the violation, the good faith of the employer and the history of previous violations.

12.             The penalty assessed by the Department properly considered these factors and the fine was appropriate.

13.             The foregoing Conclusions of Law are based on the reasons set out in the Memorandum which follows and which is incorporated into these Conclusions by reference.

Based upon the foregoing Conclusions of Law, the Administrative Law Judge makes the following:

ORDER

IT IS HEREBY ORDERED that:

1.                  The citation is AFFIRMED.

2.                  The Respondent shall forthwith pay to the Commissioner of Labor and Industry the sum of $2400.

3.                  If the penalty is not paid within 60 days after the fine becomes a final Order, it must be increased to 125 percent of the originally-assessed amount.  Furthermore, after 60 days, the unpaid fine shall accrue an additional penalty of 10 percent per month compounded monthly until the fine is paid in full as required by Minn. Stat. § 182.666, subd. 7.

 

 

Dated this

Day of

May

1999.

 

                                                                             

GEORGE A. BECK

Administrative Law Judge

 

Reported: Taped, no transcript.

 

MEMORANDUM

The Complainant issued Citation 1, Item 1 to Respondent on April 23, 1998.  It alleged a violation between March 12 and April 3, 1998, at the Rice Street excavation area where one of Respondent’s cranes was at work.  The citation described the violation as:  “Accessible area(s) within the swing radius of the rear of the rotating superstructure of the crane(s) were not barricaded in such a manner as to prevent employees from being struck or crushed by the crane.”[11]  The citation alleges that Respondent’s employees were exposed to potential injury while working in the excavation pit, due to lack of swing radius protection on a 50-ton American crane.  The violation was classified as serious.

The burden is on Complainant to establish, by a preponderance of the evidence, that:  1) the cited standard applies, 2) Respondent failed to comply with the standard, 3) an employee had access to the violative condition, and 4) Respondent knew, or with the exercise of reasonable diligence, could have known, of the violative condition.  Complainant also has the burden of showing that the violation was properly classified as serious, and the penalty properly assessed.

Respondent stipulates to the applicability of the relevant standard, and does not expressly deny knowledge of the violation.  In fact, the safety director for Respondent had visited the site and the crane had operated for about 12 days.  Additionally, Respondent’s safety manual called for a barricade.[12]  Respondent challenges the citation on the basis that its employees were not exposed to the hazards the standard was designed to prevent, and because alternative safety measures were in place.  (Answer at 2.)

Accessibility

Access, and not actual exposure is the standard by which safety violations are measured.[13]  Employees have access whenever, in the course of their work, their personal comfort activities while on the job, or their normal means of ingress and egress to their workplace have been, are, or will be in a zone of danger.[14]  The Minnesota OSH Review Board has adopted this test.[15]  Exposure may be proven by showing that employees may reasonably be expected to come into danger considering the nature of the work, the work activities required, and the routes of arrival and departure.[16] 

The OSH Inspector witnessed only the crane oiler, and no other employees, within the swing radius of the crane.  She testified that the oiler stepped up on the crawler tracks, while the crane was turning, to retrieve a tool.  Respondent argues that because the oiler’s duties require his presence in that area, that this cannot be the basis of an access determination under the Gilles test.[17]  The argument that the oiler’s duties create an exemption to the barricade requirement is unsupported.  The purpose of the standard is not to physically prevent access to the hazard, but to deter those with no reason to be in that area.[18]  If the presence of the oiler within the swing radius exempted the employer from all compliance with the standard, the standard would be meaningless in most situations.  An employer is not relieved of the duty to barricade a hazardous area merely because one employee must work within it.  To the contrary, the oiler’s presence within the crane’s swing radius demonstrates that employees “have been, are, or will be in a zone of danger.” 

Even if Respondent’s assertion that the oiler’s presence should not be determinative is accepted, photographs of the site clearly show two jackets hanging on the rear of the crane.[19]  Because two employees will have reason to retrieve their jackets, it is not “mere speculation” to conclude they “will be within the zone of danger.”  Respondent asserts that Complainant has offered no evidence to show “reasonable predictability” that an employee could be struck or crushed by the crane.[20]  Respondent also emphasizes that the Inspector did not see employees other than the oiler enter the swing radius, and argues that the crane rarely moves.  However, actual exposure is not the measure of accessibility.[21]  If a crane has the capacity to move, it must be barricaded.[22]  The risk of serious injury is not eliminated because the crane is temporarily idle.  The swing radius area must be barricaded at all times, not only when it is rotating.  To hold otherwise would defeat the purpose of the standard. 

Unlike the cases Respondent cites, the facts here demonstrate that employees had access to the swing radius of the crane, and it is therefore “reasonably predictable” that they could be injured.  Even employing Respondent’s definition (“easy to get to”),[23] does not excuse its noncompliance; where employees used the crane as a coat rack, it is difficult to believe the area was not “easy to get to.”  There is nothing to prevent or warn an employee approaching the crane for whatever reason, such as leaving the pit or to talk to another employee.  The Judge declines to adopt Respondent’s definition of “barricade.”  Complainant has shown by a preponderance of the evidence that employees had access to the violative condition.

Alternative Safety Measures

Respondent asserts that the crane mat serves as an adequate barricade.[24]  However, the adopted definition of “barricade” is “an obstruction to deter the passage of persons or vehicles”.[25]  A one foot platform does not deter an employee from approaching the crane.  Again, if employees were able to easily transgress the mat to hang their coats, it did not function as a barricade.

Respondent insists that its alternative safety measures are a permissible substitute for compliance with the standard, citing a federal OSHA interpretation letter regarding the same standard.[26]  It asserts that its employees are well-trained and experienced and therefore a barricade is unnecessary.  It also argues that the warning sign on the crane was sufficient.  Respondent fails to note, however, that alternative precautions are only permissible “when compliance with a standard is impossible.”  Compliance was clearly possible here.  Furthermore, there is no legal basis for concluding that training or experience would be sufficient to substitute for a standard since even experienced employees make mistakes.  The warning sign is not equivalent to a barricade for employee protection.

Vagueness

The Respondent attacks the standard in question as impermissibly vague.  It argues that the standard does not clearly indicate whether all employees must be kept outside of the barricade.  A rule is vague where a person of ordinary intelligence does not have a reasonable opportunity to know what is prohibited.[27]  Bolander did not have to guess at what was required here.  As its Field Operations Safety Policy indicated, it was required to erect a barricade and barricade is defined in the regulations.  At any rate, constitutional questions are left to the courts for resolution.

Classification of Violation

A serious violation is one in which there is a substantial probability that death or serious physical harm could result, and the employer knew or could have known with the exercise of reasonable diligence of the violative condition.[28]  The classification of the violation as serious is in conformance with Minnesota statutes and OSH guidelines.  In determining the severity of the violation, the OSH Inspector considered:   1) the hazard the standard is designed to prevent, 2) the severity of an injury or illness which could reasonably be expected to result from an employee’s exposure to the violation, 3) whether death or serious physical harm could result, and 4) whether the employer knew, or should have known of the hazard.  The standard explicitly seeks to prevent employees from being “struck or crushed by the crane.”  Respondent contends that the crane moved so slowly that any employee in its path would only be pushed, or possibly knocked down, suffering only minor injuries such as bruises.[29]  While this is possible, it ignores the possibility that an employee could be caught in a pinch point.  The OSH Inspector’s testimony cited two such accidents that resulted in serious injury and death.[30]  It is not unreasonable to foresee serious physical injury or death resulting from employee exposure in this case. 

Additionally, the Minnesota OSHA Citation Rating Guide (CRG) used by the Inspector recommends a “serious” rating for violations of the standard at issue here.[31]  The CRG only suggests a “nonserious” classification for a few, very minor violations, such as those where an employee fell less than six feet; this is not comparable to being struck by a fifty-ton crane, no matter how slowly it moves.  While not binding, the Minnesota OSHA Field Compliance Manual instructs adherence to the CRG recommendations, unless “documentation is provided which justifies a departure from this practice.”[32]  The Compliance Manual Guideline is reasonable in this circumstance.  The violation’s designation as “serious” is supported by the evidence.

Penalty Assessment

The ensuing penalty was calculated in accordance with Minnesota OSH guidelines, and took into account the number of employees exposed to the hazard, and their proximity to it, the duration of hazard, and other work conditions.  Based on the testimony and evidence presented, the Inspector properly calculated the penalty according to the combined severity and probability of injury.  She correctly adjusted the $4,000 penalty to $2,400, to reflect Respondent’s good faith (for having an effective written safety and health program), and their lack of repeat violations.

Conclusion

Accordingly, the Judge is persuaded that the Complainant has established Respondent’s violation of the cited standard, the seriousness of the violation, and the proper assessment of the penalty, by a preponderance of the evidence.  The citation in this case is affirmed.

G.A.B.