BOH Brothers Construction Company, LLC, Docket No. 09-1072

THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

SECRETARY OF LABOR, :

Complainant, :

v. :

OSHRC Docket No. 09-1072

BOH BROTHERS CONSTRUCTION : COMPANY, LLC :

Respondent. :

This proceeding is before the Occupational Safety and Health Review Commission (“the Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). From December 24, 2008, through June 9, 2009, the Occupational Safety and Health Administration (“OSHA”) conducted a fatality inspection of a Boh Brothers Construction Company, LLC (“Boh Brothers”) construction site. As a result of that inspection, OSHA issued to Boh Brothers one serious citation alleging three violations of the Act and proposing a total penalty of $12,125. Boh Brothers contested the citation, and the trial in this matter took place on January 13-15, 2010, in New Orleans, Louisiana. Both parties have filed post-trial briefs.

Boh Brothers does not challenge the alleged violations’ characterization. Rather, it argues that the Secretary has not established the three alleged violations, and asserts unpreventable employee misconduct as an affirmative defense to Item 3.

The parties agree that jurisdiction of this action is conferred upon the Commission pursuant to Section 9(c) of the Act, and that Boh Brothers is an employer engaged in business affecting commerce. (Ex. ALJ-1.) The parties also agreed that the inspection at Boh Brothers’ workplace was conducted by an authorized representative of Complainant, and that an exhibit containing a June 10, 2009 e-mail from Ray Arcement to Kenneth Geistfeld and calculations attached thereto is a true and correct copy. (Id.)

I held this trial in compliance with applicable sequestration rules. See Federal Rule of Evidence 615 (allowing court to “order witnesses excluded so that they cannot hear the testimony of other witnesses”); Commission Rule of Procedure 71; 29 C.F.R. § 2200.71 (Federal Rules of Evidence apply in Commission proceedings). See also Geders v. United States, 425 U.S. 80, 87 (1976) (“The practice of sequestering witnesses is twofold. It exercises a restraint on witnesses >tailoring’ their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid.”); Fed R. Evid. 615 advisory committee’s note (“The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, or collusion.”); 29 Charles Alan Wright & Victor J. Gold, Federal Practice and Procedure: Evidence § 6242, at 53-54 (1st ed. 1997).

The OSHA inspection took place after an accident at the Interstate-10 Twin Span (“Twin Span”) project, which involves new construction of two bridges over Lake Pontchartrain, connecting New Orleans and Slidell, Louisiana.

(Tr. 21.) Including their approaches, both bridges exceed five miles. (Tr. 118.) Both bridges have a cross slope of 1.43 degrees (2.5 percent). (Tr. 386-87, 685; Ex. ALJ-1 Att. A at 2.) The particular bridge location at issue in this matter had a downward gradient, toward the north shore, of 0.9 degrees (1.6 percent). (Tr. 386, 404, 686; Ex. ALJ-1 Att. A at 2.) Boh Brothers was responsible for the entire project, aside from the bridges’ high-rise “hump” portions. (Tr. 142, 153-54.) Due to its size and the “end-on” nature of the construction, the Twin Span project was comprised of numerous work crews distributed across multiple work areas. (Tr. 206, 246, 540.)

One stage of the Twin Span project involved setting concrete walls along the decks’ edges. Boh Brothers used curb forms by pouring and setting the concrete in one area and then removing the form to transport it elsewhere along the deck, where employees would repeat the process. (Tr. 26, 471.) The forms weighed 1,500 pounds, and Boh Brothers transported them up to 150 feet at a time via “pick-and-carry” operation with a “cherry picker,” a mobile hydraulic crane with tires and an extending boom. (Tr. 25-27, 30-35, 281, 301, 305, 471; Complainant’s Exhibit (“C-Ex.”) F at p. 28 of 194; C-Ex. Z.)

The cherry picker that Boh Brothers used for this function was the Link-Belt RTC – 8030 Series II (“Link-Belt” or “crane”). (Tr. 278, 300-301; C-Exs. F, G.) The Link-Belt is equipped with outriggers, extendable supporting devices provided to insure safe lifts. (Tr. 297-98, 494, 604; C-Ex. F at pp. 43-45, 192 of 194.) With outriggers properly extended, the crane’s tires come off the ground. The operator can make lifts from this position, but the crane becomes stationary and can move a load solely along its boom’s radius. (Tr. 297; C-Ex. F at p. 44 of 194.)

· The crane must be level before making a lift; a three-degree side tilt can reduce capacities by 50% or more. (Tr. 289; C-Ex. F at p. 13 of 194.)

· The [mobile] crane must be level and on firm ground with the outriggers fully extended and the tires clear of the ground before beginning any operation. (C-Ex. F at p. 31 of 194.)

· If a smooth level route is not available, don’t travel with a suspended load. (C-Ex. F at p. 28 of 194.)

The manual also contains general warnings that operators should not operate a damaged or poorly maintained crane, and that worn components must be replaced prior to use. (C-Ex. F at p. 21 of 194.)

The Link-Belt cab is equipped with a Microguard 434 Rated Capacity Limiter (“Microguard Limiter” or “computer”), which “monitors crane functions” and “continuously compares the load with a copy of the crane capacity chart . . . in the computer memory.” (C-Ex. F at p. 54 of 194.) The computer screen indicates factors that determine a crane’s capability during a lift, such as the actual load weight, load radius, boom angle, and boom length. (Id. at pp. 54-55 of 194.)

Late in 2008, Boh Brothers hired foreman Tommy Tomkins to supervise the curb formwork near the north shore. (Tr. 469.) Tomkins took over responsibility previously assigned to Ronnie Brown, a Boh Brothers superintendent. Tomkins was scheduled to spend two days of orientation with Ronnie Brown but, as a result of a jury duty conflict, their overlap lasted one half day. (Tr. 470-71.)

The crane operator who Tomkins initially supervised was Randy Matson. (Tr. 471.) Tomkins and Matson discussed how Matson planned to perform each curb form lift, and Matson assumed responsibility upon performing the actual lift. (Tr. 303.) Tomkins testified that he observed Matson perform a pick-and-carry numerous times, and knew throughout that bridges are sloped downward toward their approaches. (Tr. 475-76, 494.) Matson testified that he performed pick-and-carry operations even though he too knew the deck was not level and was generally aware that a gradient affects load capacity. (Tr. 282-84, 303-04.) Matson also testified that the computer screen was faded, such that in daylight he would have to shade the screen to read it. (Tr. 280.) Boh Brothers had scheduled repairs for the computer screen “as soon as possible.” (Tr. 640-41; C-Ex. N.)

On December 23, 2008, an accident occurred that culminated in the death of a Boh Brothers employee (“T.B.”). (Tr. 686.) By that date, T.B. had replaced Matson as Tomkins’ crane operator. (Tr. 476.) Tomkins’ crew had just completed the walls along one edge and was preparing to start on the other side, which required transporting the curb forms across the span via pick-and-carry operation. (Tr. 479.) Assisting T.B. were Foreman Tomkins and three employees: Richard Tomkins, Dennis Brown, and Wilson Winn. (Tr. 42, 84.) In the morning, T.B. made two lifts, and “everything went smooth.” (Tr. 85.) Foreman Tomkins observed T.B. make these lifts. (Tr. 482.) When a lunch break ended at 12:30 p.m., Foreman Tomkins attended to other operations approximately 90 to 200 feet farther from the north shore, and assigned Richard Tomkins, Dennis Brown, and Winn to continue assisting T.B. (Tr. 42-43, 85, 483.) Winn testified that T.B. approached the form “at a different angle than what he was when he picked up the first two” and did not “pick it up straight.” (Tr. 86.) Winn further testified that after T.B. lifted the form from that angle, the crane’s tires lifted off the pavement, the form swung to the right, and the crane tilted over. (Tr. 86.) Winn thought that “the angle that [T.B.] took might have played a big part” in the crane tipping over.

(Tr. 86.) Winn testified that at no point that day did he observe the crane’s outriggers extended. (Tr. 83.)

After toppling, the crane settled on the railing with its cab hanging over the water. (Tr. 47, 87; C-Ex. S.) Winn and Dennis Brown held onto the crane to prevent it from sliding off the bridge, and also tried to reach T.B., who remained in the cab, unresponsive. (Tr. 87, 107.) Other Boh Brothers employees assembled to hold the crane, but T.B. eventually broke through the cab and fell into the lake. (Tr. 88.) The crane also fell into the lake, avoiding T.B., who had floated a short distance. (Tr. 90-92.)

Employee Chad Byrd was the first to reach T.B. after the fall. (Tr. 94, 226-27.) As a Boh Brothers crew boat operator, Byrd was assigned to transport employees, “monitor the water,” and provide water rescue as needed. (Tr. 113, 226.) Byrd had attended a one-day Coast Guard training, but lacked first aid or CPR skills. (Tr. 114.) He testified that if he were to see anyone fall in the water, his instructions were to “get them out.” (Tr. 116.)

Byrd was located on the southern half of the lake when he learned of the accident from a supervisory crew boat operator, Jeffrey Jones, who was located on the south shore. (Tr. 117; C-Ex. D.) Jones and Byrd were the only employees assigned to a boat that day, and Jones reached Byrd by marine radio to give instructions to make a rescue “near the north shore.” (Tr. 117, 144-46, 148, 220, 226.) Boh Brothers had not equipped its crew boats with radios that provided system-wide emergency channels. (Tr. 144.) Jones had received the emergency call by cell phone from Mark Bailey, a Boh Brothers superintendent on a work crew near the bridge’s midpoint. (Tr. 516-17; C-Ex. D.) Bailey, in turn, had learned of the accident only after two members of his crew had driven to him from the accident scene, near the north shore. (Tr. 516.)

Byrd testified that he reached T.B. after “six to eight minutes, ten tops,” considering that he had traveled three to four miles, that the boat’s maximum speed was 30 miles per hour, that lake conditions were fair, and that he decelerated at some points to seek help locating T.B. (Tr. 115-121; C-Ex. D.) When Byrd reached T.B., he was unable to pull T.B. from the water. (Tr. 121.) Shortly thereafter, a second boat arrived, driven by Boh Brothers’ Field Project Manager Kenneth Solis, who was on the north shore when he learned of the accident. (Tr. 121, 519, 678.) Though trained in emergency response and first aid, Solis was not assigned lifesaving duties that day. He testified that he ran 150 to 200 yards to a docked boat and drove it approximately 250 to 300 feet to T.B.’s location. (Tr. 679-80.) Solis jumped onto Byrd’s boat and held T.B.’s head above water while Byrd steered toward the authorities awaiting on shore to provide T.B. first aid.

(Tr. 121-22, 570, 681-83.)

Dennis Brown testified that Boh Brothers stressed safety to its employees and was “pretty safety-conscious.” (Tr. 69.) Bill Moulton, a senior superintendent from Boh Brothers’ corporate safety office, testified that Boh Brothers generally dispatches a safety engineer to job sites to administer first aid and CPR training to superintendents and foremen. (Tr. 186-87.) Moulton explained that Boh Brothers accounted for the Twin Span project’s “large” scope by assigning him to provide sufficient safety equipment and conduct necessary field inspections. (Tr. 205-09.) Boh Brothers also committed a Safety Representative, Lester Untereiner, to perform compliance monitoring, coordinate with foremen and supervisors, identify deficiencies, and recommend safety improvements. (Tr. 192-93, 540-42.) Untereiner testified that he held daily safety meetings with supervisors to address ongoing work and insure that foremen held daily job safety analysis (“JSA”) meetings with crew members. (Tr. 540.) And weekly, Untereiner administered presentations on safety-related topics selected by the corporate safety office. (Tr. 54, 539-40, 544; Respondent’s Exhibit (“R-Ex.”) 13.) Untereiner also administered orientation for employees new to projects. (Tr. 541-42.)

Boh Brothers had a written safety and health plan in effect at the Twin Span project. (Tr. 542; R-Ex. 22.) The plan includes a disciplinary policy requiring foremen and supervisors to address safe work practice violations. (Tr. 546; R-Ex. 22 at 9-10.) Moulton and Untereiner both testified that under the company’s “stop work” policy, supervisors and employees alike may seek to stop unsafe work practices. (Tr. 230, 568.) The record evidence contains a number of written “employee notice warnings” issued in accordance with the disciplinary policy. (R-Ex. 12.)

Moulton testified that on the Twin Span project, Boh Brothers also emphasized the importance of providing personal protective and lifesaving equipment. (C-Ex. P at p. 1 of 6; R-Ex. 13 at 189.) Twice in 2008, Boh Brothers held training on the topic, wherein it addressed “the threat of drowning” at worksites near water, warning that “minutes count” and “[t]hree to four minutes without oxygen causes permanent brain damage.” (Id.) The training materials instructed that to prevent drowning, a lifesaving skiff should be “in the water or . . . capable of being quickly launched and able to retrieve an employee from the water no more than 3 to 4 minutes from the time it enters water.” (Id.) Moulton agreed at the trial that this presentation was administered to foremen, supervisors, and front-line employees. (Tr. 217.) The record also contains evidence that Boh Brothers provided ring buoys as part of its personal protective equipment program. Moulton and Untereiner both testified that Boh Brothers accounted for the worksite’s size by placing ring buoys on all machinery and vessels, as well as on foreman trucks. (Tr. 232-33, 552, 555.)

OSHA Compliance Officer Kenneth Geistfeld (“CO Geistfeld”) inspected the site on December 24, 2008, the day following the accident, and returned approximately six times over the course of the inspection period. (Tr. 327-28.) One of CO Geistfeld’s observations was that he did not see any ring buoys. (Tr. 330.) On June 8, 2009, he toured a span by vehicle and photographed two-employee crews working along the edges. (C-Ex. W.) From the moving vehicle, CO Geistfeld did not observe any ring buoys. (Tr. 330.) During the inspection Boh Brothers supervisors informed CO Geistfeld that Boh Brothers had a practice of providing ring buoys on the worksite. (Tr. 335-36, 345.)

Over the course of the inspection, CO Geistfeld photographed the accident scene, familiarized himself with the Link-Belt manual, and took statements from employees about the accident and response. (Tr. 362, 364-67, 374.) He also learned that the curb formwork “pick-and carry” lifts without outriggers had been taking place for one week. (Tr. 407.) Through an information request after the inspection closed, CO Geistfeld was able to determine that the bridge surface where the accident took place was not level. (Tr. 386-88; Ex. ALJ-1, Att. A.) CO Geistfeld also concluded from his interviews that no lifesaving skiff was immediately available during the citation period. (Tr. 367.)

Citation 1, Item 1 and Citation 1, Item 2 involve the Personal Protective and Lifesaving Equipment Construction (“PPE”) standard. See 29 C.F.R. Part 1926, Subpart E. Citation 1, Item 1 alleges a violation of 29 C.F.R. § 1926.106(c), which requires the employer to provide ring buoys and make them readily available for emergency water rescue operations. Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1926.106(d), which requires employers at worksites “over or adjacent to water” to make “at least one lifesaving skiff . . . immediately available.” The Secretary proposes a $2,500 penalty for Citation 1, Item 1, and a $5,000 penalty for Citation 1, Item 2.

Citation 1, Item 3, involving the cranes and derricks construction standard, see 29 C.F.R. Part 1926, Subpart N, alleges that Boh Brothers violated 29 C.F.R. § 1926.550(a)(1) by failing to comply with the manufacturer’s specifications applicable to the Link-Belt’s operation. The Secretary cites two instances of such conduct, and proposes a $5,000 total penalty for Citation 1, Item 3.

In order to prove a violation, the Secretary must show that: (1) the cited standard applies; (2) there was a failure to comply with the cited standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982).

The Secretary has established the first element – applicability – for each item. The Twin Span project was involved in construction on or near water, thus making applicable the cited PPE standards in Citation 1, Item 1 and Citation 1, Item 2. Boh Brothers does not argue otherwise in its brief. (Resp’t Br. at 4-16.) The Link-Belt is a crane whose manufacturer provided use specifications, making applicable the cited standard in Citation 1, Item 3. Again, Boh Brothers appears not to challenge this finding. (Resp’t Br. at 16-22.)

[r]ing buoys with at least 90 feet of line shall be provided and readily available for emergency rescue operations. Distance between ring buoys shall not exceed 200 feet.

[o]n the roadway of the I-10 Twin-Span Bridge construction project in the area where the construction was taking place over water there were no ring buoys provided. This condition exposed the employees working on the roadway construction to a drowning hazard.

At issue is whether the Secretary has sufficiently established noncompliance with the cited standard.

To demonstrate that ring buoys were not present to the extent required by the cited standard, the Secretary posits that ring buoys were absent on three different dates during the citation period, particularly on June 8, 2009. (Sec’y Br. at 12-14.) When CO Geistfeld inspected the worksite that day, he sighted numerous small crews while touring one of the spans by automobile. (Tr. 332-34.) The CO photographed some of the crews from the moving vehicle, and testified that he did not see ring buoys near any of them. (Tr. 330.) CO Geistfeld conceded, however, that when he passed the crews, he neither exited nor even stopped his vehicle to determine whether Boh Brothers may have placed ring buoys someplace that may have been out of his view, such as on a vessel on the lake below, or attached to portions of overhang caddies that he could not see. (Tr. 330-31, 440-41; C-Ex. W.) CO Geistfeld also conceded that he never interviewed any of the observed employees or otherwise sought to determine whether ring buoys were present beyond his vantage point. (Tr. at 439.)

Though CO Geistfeld believed Boh Brothers officials when they informed him that vessels on the lake contained ring buoys, he neglected to inspect the vessels or otherwise attempt to locate them or otherwise determine compliance with the standard. (Tr. 436.) The CO also admitted that he did not consider searching for ring buoys in places such overhang caddies. (Tr. 435.)

With less confidence, the Secretary argues that no ring buoys were present when CO Geistfeld initiated the inspection on December 24, 2008. (Sec’y Br. at 13.) Arriving at the site in response to the accident, it was that day when CO Geistfeld first considered that Boh Brothers had not provided enough ring buoys. (Tr. 330.) Nonetheless, CO Geistfeld admitted at trial that his actual findings that day probably did not support a citation. (Tr. 336.)

The Secretary also refers to the accident itself as “a real life scenario of when a ring buoy may have been needed.” (Sec’y Br. at 13.) The Secretary points out that Dennis Brown and Winn both testified to not seeing ring buoys near the work area on December 23, 2008. (Id.) But Dennis Brown stated that Boh Brothers generally provided ring buoys, and Winn qualified his testimony by explaining that he was not necessarily looking for ring buoys while assisting the curb formwork. (Tr. 54, 95.) The Secretary also argues that Boh Brothers has not adequately shown that it provided ring buoys near the curb formwork on the day of the accident. But as the Secretary admits, the accident is “not a basis for [Citation 1, Item 1] itself.” (Sec’y Br. at 13.) The Secretary also does not dispute testimony that on the day of the accident, Boh Brothers did equip the Link-Belt with a ring buoy. (Tr. 490, 555.)

All the while, Boh Brothers has offered undisputed evidence that as part of its safety policy, supervisors were aware of the ring buoy requirement and routinely provided ring buoys to particular work areas. Moulton testified that Boh Brothers addressed this policy in JSA meetings and performed inspections to ensure compliance. (Tr. 210.) He explained that because the project involved “end-on” construction, in which work locations frequently changed, “more ring buoys [were required] to be within 200 feet of an operation.” (Tr. 210, 232-33, 246.) He testified that Boh Brothers used foreman trucks to ready ring buoys for distribution to equipment such as cranes and overhang scaffolding. (Tr. 210.) Testimony also shows that Boh Brothers kept ring buoys on barges, tugboats, stationary cranes, and crew boats. (Tr. 54, 552). CO Geistfeld did not appear to investigate this information’s accuracy upon receiving it at the inspection. (Tr. 436.)

The cited standard requires the Secretary to show that ring buoys were not present at the worksite, or, in the very least, that ring buoys were present, but not within 200 feet of each other. 29 C.F.R. § 1926.106(c). The nature of the requirement, therefore, required CO Geistfeld to identify particular work areas where Boh Brothers failed to comply. Without calling into question CO Geistfeld’s general expertise or credibility as a witness, I find that he never showed that Boh Brothers violated the cited standard. In turn, the Secretary can provide no direct testimony to support the CO’s initial impressions that ring buoys were insufficiently present, and thus she has not established noncompliance. By failing to prove this element, the Secretary has not established a violation of the ring buoy standard, and Citation 1, Item 1, is vacated.

[a]t least one lifesaving skiff shall be immediately available at locations where employees are working over or adjacent to water.

I-10 Twin-Span bridge construction project; [sic] On or about December 23, 2008, the employer failed to ensure a skiff was immediately available to retrieve employees in the event of a fall. Employees were working over Lake Pontchartrain on the edge of the roadbed near the northeast end of the east bound lanes of the bridge. Employees were exposed to a hazard of drowning.

Although Boh Brothers equipped the project with at least seven crew boats, during the period covered by the citation, at least five of them were docked at the north shore. (Tr. 116, 220, 555.) And at the time of the accident, the only active crew boat operators were assigned duties miles away from the north shore worksite. Not only were these boats far away, but the record shows that Boh Brothers was not prepared to have a lifesaving skiff operator perform rescue duties, as Byrd testified that he was not so specifically designated. (Tr. 116.) T.B. received first aid only after an improvised rescue involving disorganized, inefficient communication. I find that the Secretary has established a violation of section 1926.106(d).

Byrd, the closest boat operator, had to travel up to four miles to reach T.B, a distance that took him from “six to eight minutes, ten tops.” (Tr. 121.)

And time appears to have passed even before Byrd started en route. Captain Jones – who instructed Byrd to rescue T.B. – had not heard of the accident until T.B. had already fallen. (Tr. 145-46.) Testimony from Winn and Dennis Brown – both of whom witnessed the entire turn of events and both of whom I found to be credible based on their demeanor at trial – indicates that after the crane toppled, T.B. remained in the cab for six to ten minutes. (Tr. 47, 89-90.)

The cited standard does not define “immediately available.” My conclusion that Boh Brothers did not meet this requirement rests on the “‘totality’ of the relevant ‘circumstances.’” Atlantic Battery Co., 16 BNA OSHC 2131, 2168 (No. 90-1747, 1994) (citations omitted.) Boh Brothers’ own safety materials state that to prevent drowning, a lifesaving skiff should be “placed in the water or so that it is capable of being quickly launched and able to retrieve an employee from the water no more than 3 to 4 minutes from the time it enters water.” (C-Ex. P at p. 1 of 6; R-Ex. 13 at 189.)

The record demonstrates that Boh Brothers did not retrieve T.B. within this period and that T.B. was in the water for eight to twelve minutes. More so, I note that although Boh Brothers had work areas on both sides of the lake, during the citation period it had only assigned two crew boats – with speeds limited to thirty miles per hour – to the large worksite. I further note that Boh Brothers’ failure to equip its crew boats with an emergency radio channel prolonged response time. Based on the foregoing, regardless of how much time actually elapsed while T.B. was in the water, I agree with the Secretary’s argument that Boh Brothers failed to make a lifesaving skiff “immediately available.” Under the circumstances, the Secretary has established noncompliance with section 1926.106(d).

Because T.B. fell to the water during the period covering the citation, the Secretary has shown actual exposure to the cited drowning hazard. RGM Constr. Co., 17 BNA OSHC 1229, 1236 (No. 91-2107, 1995) (finding violation of lifesaving skiff standard where employees were working at end of bridge but nonetheless “over water”). But the Secretary has shown that even if T.B.’s accident never occurred, employees on the deck were similarly exposed to water-related hazards – such as drowning or hypothermia – stemming from the lack of an immediately available lifesaving skiff. (Tr. 367.) See Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (requiring Secretary to establish exposure by showing that it is reasonably predictable that employees have been, are, or will be in the zone of danger); RGM, 17 BNA OSHC at 1234 (holding that zone of danger is “area surrounding the violative condition that presents the danger to employees”). The Secretary, therefore, has established exposure to the violative condition.

I also find that on the date covered by the citation period for Item 2, high-level Boh Brothers officials had actual knowledge that no lifesaving skiff was immediately available to make rescues near the curb formwork. Untereiner testified that he was in daily contact with foremen, which placed him in a position to know what work was taking place each day, where such work was occurring, and which foremen were assigned a boat. He and Moulton knew that if Boh Brothers boats went unused, they were available in the “pen.” (Tr. 223-26, 556.) Boh Brothers supervisors, therefore, had information that on the day of the accident, the only assigned crew boats were on the south shore, but that work was taking place over water near the north shore. Their actual knowledge is imputable to Boh Brothers. Rawson Contractors Inc., 20 BNA OSHC 1078, 1080-81 (No. 99-0018, 2003); A.P. O’Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-0369, 1991).

There is further support for a conclusion that the Secretary has proven Boh Brothers’ knowledge that lifesaving skiffs were not immediately available. Boh Brothers asserts that it “had proper training and work rules in place to insure . . . compliance with the standard . . . .” (Resp’t Br. at 15.) But Boh Brothers has not provided evidence that its safety program included a process by which it monitored Moulton and Untereiner’s supervisory efforts. Southwestern Bell Tele. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000), aff’d 277 F.3d. 1374 (5^th Cir. 2001) (unpublished). In this regard, Boh Brothers’ program is not “sufficient to make the supervisor’s conduct in violation of the policy unforeseeable.” W.G. Yates & Sons Constr. Co. Inc., 459 F.3d 604, 608-09 (5th Cir. 2006) (hereinafter “W.G. Yates”).

The Secretary has proposed a penalty of $5,000, which I find appropriate. In determining penalties, the Commission must give due consideration to four factors: gravity of the violation; size of the employer’s business; good faith of the company; and the company’s previous history of OSHA violations. See OSH Act § 17(j), 29 U.S.C. § 666(j). “These factors are not accorded equal weight, and gravity normally is the most significant consideration.” Aviation Constructors Inc., 18 BNA OSHC 1917, 1922 (96-0593, 1999). Gravity is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

I find the gravity of this Item to be high. As found above, although the precise duration is undetermined, T.B. was in the water long enough to have been subject to water-related hazards. (Sec’y Br. at 19.) And although Byrd and Solis did eventually reach T.B., first aid took place only after T.B. was dragged through the water to shore. I also find that Boh Brothers could have limited exposure by dispatching boats on both sides of the lake and outfitting its boats with radios programmed to simultaneously receive initial emergency messages.

As to the other factors, CO Geistfeld did not propose a downward adjustment for size or prior history, taking into account that Boh Brothers employs 1,500 – 1,800 workers and that OSHA had previously issued citations to it. (Tr. 351.) Boh Brothers does not dispute these findings. Accordingly, I will make no downward adjustment for these two factors.

Nor do I find it appropriate to make a downward adjustment for good faith. Granted, the record does show that supervisors and employees reacted as best they could under the circumstances. And testimony shows that Boh Brothers has a written safety plan and is generally known for a commitment to safety. (Tr. 69; R-Ex. 22.) But as shown above, by not accounting for the size of the worksite, and not having a lifesaving skiff immediately available near the north shore curb formwork, Boh Brothers failed to follow its own written requirement. MJP Constr. Co., 19 BNA OSHC 1638, 1649 (No. 98-0502, 2001) (refusing good faith reduction where employer failed to comply with own fall protection program); Ed Taylor Constr. Co., 15 BNA OSHC 1711, 1718 (No. 88-2463, 1992) (balancing commendable measures of safety plan “with clearly inadequate measures taken” at particular worksite). In view of these factors, I find appropriate, and therefore assess, the Secretary’s proposed penalty of $5,000.

[t]he employer shall comply with the manufacturer’s specifications and limitations applicable to the operation of any and all cranes….

[o]n or about December 23, 2008, a Link Belt [sic] Model RTC-8030 Series II Crane was operated in an unsafe manner which resulted in the crane tipping over.

The citation listed five instances allegedly demonstrating Boh Brothers’ violation of section 1926.550(a)(1). Before the trial, however, the Secretary withdrew three of them. Ex. ALJ-2. The remaining instances are:

1: The operator was allowed to repeatedly make lifts on an unlevel surface without the use of outriggers (on rubber).

2: The crane was not equipped as it came from the factory in that the screen on the load indicating system was faded and hard to read and two of the four outriggers were broken and being held to the crane with rope and metal strapping.

The Link-Belt Operator’s Manual specifies that lifts must occur on a level surface, that outriggers must be used to create a level surface, and that a cherry picker may not travel unless it is on a smooth, level surface. (Tr. 373-87; C-Ex. F at pp. 13, 28, 31, 74 of 194). The parties have stipulated that the bridge surface where the accident took place had both a cross-slope (1.43 degrees, or 2.5 percent) and a downward slope (0.90 degrees, or 1.6 percent), and was therefore not level. (Tr. 386-87, 404, 685-86, Ex. ALJ-1 Att. A at 2.)

Thus, the “pick-and-carry” operations that took place during the citation period did not follow specifications in the manual.

Boh Brothers emphasizes that its experienced crane operators believed the bridges’ slope to be insignificant. (Resp’t Br. at 19; Tr. 303-04.) The cited standard requires compliance with an operator’s manual, however, and the Link-Belt manual prohibited pick-and-carry operations on an unlevel surface. Further, Boh Brothers cannot shift to its employees the responsibility of determining safe working procedures. Pride Oil Well Serv., 15 BNA OSHC 1809, 1815 (No. 87-692, 1992), citing Stuttgart Machine Works, Inc., 9 BNA OSHC 1366, 1369 (No 77-3021, 1981) (“[A]n employer cannot rely on one employee’s training and experience as the sole means of protecting other employees. The Act places final responsibility for compliance on the employer.”) In this light, the Secretary has established noncompliance with the cited standard.

As to exposure, the accident itself shows that Boh Brothers employees were exposed to hazards during pick-and-carry operations on an unlevel surface, outside the manufacturer’s specifications. The manual explains that the effect of an unlevel surface is reduced load capacity. (C-Ex. F at p. 24 of 194.) Not only did T.B. suffer substantial physical harm, but the other curb formwork employees were also in close proximity to a crane operating with reduced capabilities. The Secretary, therefore, has established exposure to the cited condition.

I also find that Boh Brothers had knowledge of the violative conditions. CO Geistfeld asserted at trial that Boh Brothers “management” was aware that the curb formwork involved pick-and-carry operations, and that it was also common knowledge that the bridge was not level. (Tr. 409.) The record evidence appears to support these findings. Even prior to the week of the accident, Boh Brothers foremen were routinely under the impression that if operators were performing lifts within the cranes’ capacity, then outriggers were unnecessary, regardless of whether pick-and-carry operations were taking place. (Tr. 480-82.) Specifically, Tomkins allowed the pick-and-carry operation even though he understood that bridges, including the Twin Spans, are generally engineered to be sloped. (Tr. 493-95.) He also testified that Boh Brothers provided him with a safety course during which he learned that cranes should not be operated on unlevel ground. (Tr. 494.) And he discussed with Matson just what was involved with using a cherry picker to move curb forms. (Tr. 303.) Despite his understanding, Tomkins allowed his crew to move the curb forms via pick-and-carry, while being actually present for and assisting with such operations on the morning of December 23. (Tr. 475-76.) The record shows, therefore, that during the time in question with respect to Citation 1, Item 3: T.B. was allowed to perform lifts on the Link-Belt without outriggers; T.B.’s supervisor was present for two of these lifts; and at no time did Tomkins disallow such conduct despite his training. All the while, Unterenier administered daily “safety checks” and Moulton spent “the majority of the day in the field [monitoring] for safety violations.” (Resp’t Br. at 20; Tr. 208-09.) And Boh Brothers actually endorses the pick-and-carry approach as “an absolute necessity.” (Resp’t Br. at 19.) Tomkins’ decision to allow pick-and-carry operations on the bridge deck, therefore, did not amount to unforeseeable “rogue conduct.” W.G. Yates, 459 F.3d at 609 n.8.

In light of the findings above, the Secretary has established through Instance 1 a violation of the cited standard in Citation 1, Item 3. See Nat’l Eng’g & Contracting Co., 18 BNA OSHC 1075, 1079-80 (No. 94-2787, 1997) (affirming violation of section 1926.550(a)(1) where lifts without outriggers undisputedly violated manufacturer’s specifications set forth in manual).

The Secretary also argues that Boh Brothers violated section 1926.550(a)(1) by operating the crane “not equipped as it came from the factory” insofar as the “Capacity Limiter” screen was “faded and hard to read.” The Secretary has not established, however, that the faded screen constituted noncompliance with the cited standard.

Evidence does show that Matson and T.B. operated the crane while the screen was faded, and that Boh Brothers knew such conditions existed. Boh Brothers had reported the condition in its August 25, 2008, “Repair Description,” and the Secretary has shown that Boh Brothers did not subsequently repair or replace the screen. (Tr. 444, 645; C-Ex. N.) The Secretary has even shown that Boh Brothers’ equipment supervisor Gary Button understood the potential hazards associated with operating the crane while its screen was faded. (Tr. 646.)

Regardless of these facts, the Secretary has not shown that the screen’s “faded and hard to read” condition amounted to a failure to follow the manufacturer’s specifications. The applicable portion of the manual contains “no specification or limitation” on the screen’s condition. (C-Ex. F. at pp. 54-55 of 194.) The manual contains general warnings against operating a damaged or poorly maintained crane, but they do not amount to “specifications and/or limitations” for the purposes of the cited standard. (C-Ex. F at p. 21 of 194.) The Secretary, therefore, cannot rely on this instance to show a violation of the particular cited standard.

In summary, the Secretary has proven a violation of Citation 1, Item 3 based on Instance 1, but not on Instance 2. Accordingly, it is necessary to address Boh Brothers’ affirmative defense of unpreventable employee misconduct.

Establishing unpreventable employee misconduct requires proof that the employer has (1) established work rules designed to prevent the violation; (2) adequately communicated those rules to its employees; (3) taken steps to discover violations; and (4) effectively enforced the rules when violations have been discovered. Danis Shook Joint Venture XXV, 19 BNA OSHC 1497, 1502 (No. 98-1192, 2001), aff’d 319 F.3d 805 (6th Cir. 2003); see also Sanderson Farms, Inc. v. OSHRC, 348 Fed.Appx. 53, 57 (5th Cir. 2009) (adopting same requirement). The record evidence does indicate that Boh Brothers established a work rule intended to insure compliance with the Link-Belt manual by requiring cranes to be “set up on a level surface” when making lifts. (C-Ex. O.) As presented below, however, Boh Brothers has not established other elements of the defense, and therefore has not proven that the section 1926.550(a)(1) violation resulted from unpreventable employee misconduct.

Boh Brothers relies on the theory that “[T.B] was the only person with access to the crane’s bubble level indicator and was the only person who would know how to tell if the crane was operating within acceptable specifications for a pick and carry.” (Resp’t Br. at 25.) The Secretary, however, has established that Boh Brothers allowed lifts on an unlevel surface without outriggers by showing that throughout the curb formwork, pick-and-carry operations took place while foremen trained to prohibit lifts from unlevel surfaces were cognizant of the deck’s sloped surface. See supra. T.B.’s conduct in the cab is irrelevant to the Secretary’s case, and any focus on it is therefore misplaced. Tomkins knowingly allowed pick-and-carry operations on the bridge deck, an unlevel surface. (Tr. 476.) Moulton and Untereiner were assigned responsibilities that included monitoring the worksite for safety violations, but they apparently did not discover this violation. (Tr. 191-92, 207-209, 539-542.) In this light, Boh Brothers did not take adequate steps to discover violations or enforce its policy that foremen and superintendents shall address unsafe work practice by either reprimanding employees, sending them home, or terminating them.

Additional evidence shows that even though T.B. was generally considered a competent, experienced crane operator, three Boh Brothers supervisors witnessed firsthand various unsafe practices by T.B. but never reprimanded him, as Boh Brothers’ disciplinary program would have required. (Tr. 240, 315, 476, 511, 612; R-Ex. 22 at 9-10.) First, Tomkins’ testimony demonstrates that early in the curb formwork project he observed T.B. operating unsafely, but failed to comply with Boh Brothers’ disciplinary program.

A: . . . I told him that that didn’t look like [sic], and he said it would be all right. . . . It just looked like he was over-extending . . . for not having outriggers out.

(Tr. 480-82.) The colloquy shows that Tomkins questioned T.B. but never issued a “verbal warning citation,” which the Boh Brothers policy would have required. (R-Ex. 22 at 9.)

But Tomkins was not the only Boh Brothers supervisor who had observed and failed to reprimand T.B. for unsafe conduct. T.B. also worked under Ronnie Brown on the Twin Span and other projects dating back to 1997. (Tr. 160.) Ronnie Brown testified that he “caught [T.B.] once or twice . . . not doing the right thing, and, you know, we questioned. We talked about it, and that’s about basically what would happen, a verbal thing, saying that maybe you shouldn’t have did what you done.” (Tr. 161.) Ronnie Brown also testified that in an earlier portion of the Twin Span project, he observed T.B. incorrectly operating a lattice-boom crane on a wharf. (Tr. 172.) At the trial, Ronnie Brown confirmed his statement to OSHA, “[w]hen you were (a supervisor) or foreman was standing there, [T.B.] would follow the rules. When you were not there, [T.B.] would cut corners.” (Tr. 175.) Notwithstanding these observations and his responsibilities as a superintendent, Ronnie Brown never took written disciplinary action against T.B., which Boh Brothers policy would have required. Rather, Ronnie Brown deferred to T.B.’s specialized skill and took the view that “if he said he was in his chart, it was good.” (Tr. 167.) Pride Oil Well, 15 BNA OSHC at 1815. Not only did Ronnie Brown not reprimand T.B., but his failure to share this information with Tomkins during their abbreviated transition makes it all the more difficult for Boh Brothers to demonstrate that it took adequate steps to discover the violation. (Tr. 471.)

And yet another Boh Brothers superintendent, Joe Martin, had also been troubled by T.B.’s conduct on the Twin Span project. Martin testified that his crew had “a basic disagreement with [T.B.] as to what a level environment was,” but never reprimanded or refused to work with T.B. (Tr. 269-71.) This too shows that Boh Brothers supervisors failed to enforce the employer’s safety plan in response to T.B.’s past unsafe practices.

In summary, Boh Brothers has not established unpreventable employee misconduct as an affirmative defense.

The Secretary has proposed a $5,000 penalty, which I find appropriate. As with Item 2, I find the gravity of Item 3 to be high. See supra. Granted, Matson testified that he did not believe the slope created a safety concern, and I found him to be a credible witness based on his demeanor at trial and his crane operations experience. (Tr. 282-284; 299-300.) But the Secretary did not offer him as an expert on crane safety. I give greater weight to the Link-Belt manual, which makes clear that even seemingly minor slopes can have a great effect on a crane’s load capacity, making an injury all the more likely. (C-Ex. F at p. 24 of 194.) T.B. suffered an actual grave injury, and employees nearby worked in close proximity to a crane operating with a compromised lift capacity.

As with Item 2, there shall be no downward adjustment for size or history, and nor does Boh Brothers receive a downward adjustment for good faith. I note that Boh Brothers’ safety plan addressed crane safety matters, and that its foremen and crane operators communicated about performing lifts properly. But neither common knowledge that the bridge deck was not level nor the specifications in the operator’s manual stopped the foremen from allowing curb forms to be transported routinely via pick-and-carry, without outriggers. And although Boh Brothers issued numerous “employee warning notices” at the Twin Span project, none of them involved misconduct relating to crane safety. (R-Ex. 12.) See Capform Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001) (denying good faith reduction where written enforcement program did not reduce exposure to particular cited condition). In view of these factors, I find the Secretary=s proposed penalty to be appropriate. A penalty of $5,000 is therefore assessed for Item 3.

The foregoing decision constitutes my findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

2. Citation 1, Item 2 is AFFIRMED as serious, and the court assesses the proposed penalty of $5,000.

3. Citation 1, Item 3 is AFFIRMED as serious, and the court assesses the proposed penalty of $5,000.