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United
States of America
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
1120
20th Street, N.W., Ninth Floor
Washington,
DC 20036-3457
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SECRETARY OF LABOR, |
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Complainant, |
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v. |
OSHRC Docket No. 11-2780 |
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PEACOCK ENGINEERING, INC., |
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Respondent. |
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ON BRIEFS:
Amy
S. Tryon, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph
M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health;
M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC
For the Complainant
James
A. D’Ambrosio, Esq.; Chase M. Stern, Esq.; Stark
& D’Ambrosio, LLP, San Diego, CA
For the Respondent
DECISION
Before: MacDOUGALL, Acting Chairman; and ATTWOOD, Commissioner.
BY THE COMMISSION:
Peacock Engineering installs burial crypts at Miramar
National Cemetery in San Diego, California.[1] On May 6, 2011, Peacock was using an
excavator to hoist and transport a crypt, suspended by wire rope slings, from a
staging area to its plot, when an employee’s left thumb was amputated by a sling
as he guided the crypt, by hand, into place.
Following an inspection, the Occupational Safety and Health
Administration issued Peacock a citation alleging a violation of the
Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1),
based on the exposure of Peacock employees to “amputation, struck by and
crushed by hazards, while guiding a suspended load by hand.”[2] Administrative Law Judge Patrick B. Augustine
vacated this citation item, finding that no employees were exposed to the
alleged hazards.[3]
For the following reasons, we vacate Item 1 but not for lack
of employee exposure. Rather, we
conclude that the Secretary has failed to establish a feasible means of
abatement.
BACKGROUND
As of the time of the accident, Peacock had installed
approximately 11,000 crypts at Miramar.
To lift and place the crypts, each of which weighs over 8,000 pounds, Peacock
uses an excavator equipped with a custom-designed lifting accessory that, in
turn, has two wire rope slings that fit in pre-cut grooves running along the
sides of each crypt. At the installation
site, Peacock uses a string to align the crypts, which are set in rows next to
one another, parallel to and one quarter-inch off the string, in evenly spaced
eight-foot increments. A Peacock “ground
employee” rakes the ground to ensure it is level, and the excavator operator positions
each crypt over its designated plot, with the ground employee staying clear of
the suspended crypt, or “load,” until it is 1-2 feet above the ground. Once the crypt reaches this height, the
ground employee—standing approximately 2 feet from the crypt—guides it into place
by hand, in some cases “spinning” it to achieve the proper orientation. A laser is then used to check the crypt’s
elevation and alignment. On May 6, 2011,
a ground employee was working with his foreman (who was operating the excavator),
when a sling slipped from its pre-cut groove and amputated the ground
employee’s left thumb.
DISCUSSION
To prove a violation of the general
duty clause, the Secretary must establish that: (1) a condition or activity in
the workplace presented a hazard; (2) the employer or its industry recognized
the hazard; (3) the hazard was causing or likely to cause death or serious
physical harm; and (4) a feasible and effective means existed to eliminate or
materially reduce the hazard. Arcadian Corp., 20 BNA
OSHC 2001, 2007 (No. 93-0628, 2004).
In addition, the Commission and courts have also consistently required,
in order to prove the existence of a hazard within the
meaning of the general duty clause, that employees were exposed to the asserted
hazard. See, e.g., Kastalon, Inc., 12 BNA OSHC
1928, 1932 (No. 79-5543, 1986) (consolidated) (“[T]o prove the existence of a
hazard within the meaning of the general duty clause, the Secretary . . . must
show . . . that employees are exposed to a significant risk of harm.”); Bunge Corp. v. Sec’y
of Labor, 638 F.2d 831, 835 (5th Cir. 1981) (“In a section 5(a)(1) case the
Secretary must show, among other things, . . . worker exposure to the
hazard.”). Finally, in
addition to establishing the four elements of a general duty clause violation, the Secretary must prove that the
employer knew or, with the exercise of reasonable diligence, could have known
of the hazardous condition. Burford’s Trees, Inc., 22 BNA OSHC 1948, 1950
(No. 07-1899, 2010), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished).
Here, the judge initially found the
first two elements satisfied, stating that “working around suspended loads is a
hazard that is recognized both by the industry engaged in hoisting materials
and by [Peacock] specifically.” He then
stated, however, that the company’s work methods neither “establish[ed] a
hazard” nor “imposed a unique hazard,” and concluded that based on these work
methods and Peacock’s training—as well as his finding that the company had
adopted every abatement method proposed by the Secretary—none of Peacock’s employees
were exposed to the cited hazards. Additionally,
the judge found that the Secretary failed to establish employer knowledge. On review, the Secretary makes three
arguments: exposure to the hazard was established when a Peacock employee
suffered an amputation to his thumb while guiding a suspended crypt by hand; the
judge’s knowledge ruling improperly focused on the accident, rather than the
pre-existing hazardous conditions; and Peacock failed to implement the Secretary’s
proposed abatement method of keeping employees clear of the suspended load.
We find that the judge’s decision
conflates the distinct elements of a general duty clause violation. As such, we consider, in turn, the alleged hazards,
hazard recognition, and the likelihood of serious harm. We conclude the Secretary has established
these three elements, along with employee exposure to the hazard. Next, we address employer knowledge, which we
conclude the Secretary has also established.
Finally, we consider the fourth element of a general duty clause
violation—feasibility of abatement—which we conclude the Secretary has failed
to establish.[4]
Hazard
In a general duty
clause citation, “[the] hazard must be defined in a way that apprises the
employer of its obligations, and identifies conditions and practices over which
the employer can reasonably be expected to exercise control.” Arcadian Corp., 20 BNA OSHC at 2007; Pelron Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986). In the citation, the Secretary describes the
alleged hazards as “amputation, struck by and crushed by hazards, while guiding
a suspended load by hand.”
Peacock contends that although
it may be generally hazardous to work around suspended loads, the Secretary failed
to establish that the company’s actual work methods presented the specific
hazard of amputation, being struck, or being crushed by a suspended load. In addition, in claiming that its work
methods did not present a hazard, Peacock emphasizes that those methods
resulted in thousands of accident-free crypt installations. The efficacy of Peacock’s work methods in
avoiding injury, however, is a separate inquiry from whether an alleged hazard
was present. In fact, that bears on
feasibility of abatement, which we address below. See
Morrison-Knudsen Co., 16 BNA OSHC 1105, 1121 (No. 88-0572, 1993) (“[T]he
hazard is not the absence of the abatement method.”). Nor is the claim that Peacock had no previous
accidents dispositive of this specific issue—the absence of prior injury may be
the result of Peacock having had adequate abatement measures or simply of
luck. See Waldon Health Care Ctr., 16 BNA OSHC
1052, 1059 (No. 89-2804, 1993) (consolidated) (“[T]he
goal of the Act is to prevent the first accident . . . .”).
As to Peacock’s work
methods, the record shows that during the final phase of the installation
process, a Peacock employee precisely guides by hand each crypt, which is suspended
with slings, into a confined area. The
potential for amputation, being struck, or being crushed is based on the
combination of the crypt’s heavy weight, problems associated with the slings,
and the leveling, turning, and maneuvering of the crypt while it and the
employee are in close proximity to other crypts. Specifically, the ground employee must guide
and sometimes “spin” a crypt into place by pushing on it with their hands and
all their weight because the crypt is “so heavy,” posing the hazard of the employee’s
body, limbs, or hands being struck or crushed by a side of the crypt—as the
record shows, there was no safe place for the ground employees to place their
hands on the crypts while guiding them.
Additionally, the ground employee sometimes has to reach under a suspended
crypt to level it, posing the hazard of the employee’s hands being struck or
crushed by the bottom of the crypt.
Moreover, a suspended crypt may collide with other crypts when being
spun into place, posing the hazard of the employee being crushed between
crypts. Finally, the slings, which are under
tension from the heavy weight, had slipped out of the crypt’s grooves in the
past, posing the hazard of the employee being struck or crushed by a dislodged
crypt, or having an extremity amputated by a sling. Indeed, in the instant case the employee’s thumb
was amputated by a sling in precisely this way.
For all these reasons, we conclude that the Secretary has adequately
defined these hazards and established their presence at Peacock’s worksite.
Hazard Recognition
“Hazard recognition may
be shown by proof that ‘a hazard . . . is recognized as such by the employer’
or by ‘general understanding in the [employer’s] industry.’ ” Otis Elevator Co.,
21 BNA OSHC 2204, 2207 (No. 03-1344, 2007) (quoting Kokosing Constr. Co., 17 BNA OSHC 1869, 1873 (No. 92-2596, 1996)). The record here shows that the asserted
hazards were recognized, both by Peacock and the industry engaged in hoisting materials. Peacock’s recognition is established by undisputed
testimony from the OSHA compliance officer that company management was told of
problems with slings staying in crypt grooves and that workers were told to
continue their work while the issue was addressed; indeed, testimony from Peacock’s
president confirms that he was aware of a “few times” when there were problems
with misaligned crypt grooves. See Pepperidge Farm, 17
BNA OSHC 1993, 2030-31 (No. 89-0265, 1997) (finding recognition based in part
on employee complaints); Tampa Shipyards,
Inc., 15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated) (imputing recognition
of supervisor to employer). In
addition, Peacock conceded before the judge that it trained employees to stay
away from the excavator during installation, and the company acknowledged that
its president identified “kill zones”—near “equipment or the crypt, the cables,
anything like that”—where injury potential was increased. Furthermore, Peacock’s work method itself required
employees to stay away from the suspended crypts for as long as possible,
approaching only when the load was 1-2 feet off the ground. See
Pepperidge Farm, 17 BNA OSHC at 2006-07
(protective measures alone are not enough to prove recognition but may be
considered along with other evidence, such as actual knowledge, memoranda, and
warnings).
As for industry
recognition, the slings consensus standard issued by the American Society of
Mechanical Engineers—which Peacock’s expert acknowledged applies to the
company’s installation work—specifies that, among other things, “[p]ortions of the human body should be kept from between the
sling and the load,” and “[p]ersonnel should stand
clear of the suspended load.” ASME
Standard B30.9-1996, 2.9(h)-(i); see Duriron Co., 11 BNA OSHC 1405, 1407 n.2 (No.
77-2847, 1983) (finding “permissible” the Secretary’s use, in a section 5(a)(1)
case, of a “recommended [NIOSH] standard as general evidence of the hazard and
industry recognition of the hazard”), aff’d,
750 F.2d 28 (6th Cir. 1984).
Harm
The Secretary must show
that Peacock’s employees were exposed to a hazard likely to cause death or
serious physical harm. Arcadian, 20 BNA OSHC at 2010 (citing
Morrison-Knudsen, 16 BNA OSHC at 1122 (“hazard is
likely to cause serious physical harm if the likely consequences of employee exposure would be serious physical harm”)). Although the judge did not explicitly address this
issue, we find that the Secretary has established this element. “[T]he Commission has made clear [that] the criteri[on]
. . . [in this regard] is not the likelihood of an accident or injury, but
whether, if an accident occurs, the results are likely to cause death or
serious harm.” Waldon, 16 BNA OSHC at 1060. In this
case, the likely harm included amputation, which is a “serious injury.” See Brady-Hamilton Stevedore Co., 3 BNA
OSHC 1925, 1927 (No. 2265, 1976) (discussing characterization).
Exposure
“Implicit
in the above elements is the necessity for establishing employee exposure to
the cited hazardous condition.” Grossman Steel & Aluminum Corp., 6 BNA OSHC 2020, 2022
(No. 76-2834, 1978).
The Secretary establishes exposure “either by showing actual exposure or
that access to the hazard was reasonably predictable.” Phoenix
Roofing Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996)
(unpublished). Here, there is no
question that an employee’s thumb was amputated by a sling. In addition, the record shows that Peacock’s
ground employees were instructed to stand near, and place their hands on, the
suspended crypts during the final phase of installation. As a result, their limbs and bodies were in
areas where they were in danger of being struck, crushed, or suffering
amputation.[5] See
Acchione & Canuso,
Inc., 7 BNA OSHC 2128, 2130 n.7 (No. 16180, 1980) (“[The crane] operator’s
testimony describing the ‘tingling’ sensation he felt in his arm at the time of
the accident . . . is evidence of actual exposure to the shock hazard.”); S&G Packaging Co., 19 BNA OSHC 1503,
1506 (No. 98-1107, 2001) (“[Employee’s] injuries establish actual exposure to
the unguarded drive rollers.”). Thus, we
find that the record—as reflected in the judge’s own findings—establishes that
employees were exposed to the hazard.
The Secretary must show
the employer knew or, with the exercise of reasonable diligence could have
known of the hazardous condition. PSP Monotech
Indus., 22 BNA OSHC 1303, 1305 (No. 06-1201, 2008). The judge found that the Secretary failed to
show knowledge because, “[i]f the hazard . . . is . .
. the potential for amputation injuries as a result of the sling not being
securely attached to the load, . . . such problems were not attributable to the
work method[s],” but rather to “a latent defect in the crypt that could not
have been foreseen.”
We find that the
judge’s narrow focus on amputation from a crypt defect was error. The citation is clearly broader than that, as
it also alleges struck-by and crushed-by hazards resulting from guiding a
suspended load by hand. The citation
thus addresses hazards stemming from other causes, such as the difficulty of
controlling a suspended crypt due to its weight and close proximity to other
crypts, or other types of hoisting failures.
Notably, the cautions in the ASME standard are not limited to the use of
slings with grooved crypts. See Ormet
Corp., 14 BNA OSHC 2134, 2138 (No. 85-531, 1991) (“The specific facts of this accident are not determinative of
whether there was a violation.”) (emphasis in
original). In other words, “[a]
violation [may] still . . . have been committed” due to the manner in which
Peacock’s employees placed crypts, “even if there had been no accident.” Id.
The proper inquiry here
is whether Peacock was aware of the cited conditions its employees faced when
guiding a suspended crypt. At least two
pieces of evidence establish this awareness.
First, the company president testified that he himself designed the work
methods the employees use. Second, the
excavator was operated on the day of the accident by a supervisory employee,
Peacock’s foreman, who taught Peacock’s installation methods to the injured
ground employee, and set the slings on the crypt that was involved in the
amputation at issue. See Access Equip. Sys., Inc., 18 BNA
OSHC 1718, 1726 (No. 95-1449, 1999) (“[K]nowledge can
be imputed to the cited employer through its supervisory employee.”); Am. Wrecking Corp., 19 BNA OSHC 1703,
1710 (No. 96-1330, 2001) (consolidated) (finding actual knowledge, and imputing
it to employer, where supervisor “continued to work in the area [of the violative condition] through the time of the accident”), aff’d in relevant part, 351 F.3d 1254
(D.C. Cir. 2003); compare Prestressed Sys., Inc., 9 BNA OSHC 1864, 1869 (No.
16147, 1981) (stating that where violative condition
“may not have been visible, an inference of [actual] employer knowledge cannot
be drawn from the mere presence of the . . . condition at the worksite”). Accordingly, the Secretary has established
Peacock’s knowledge of the cited conditions.
Feasibility
of Abatement
The final general duty clause
element the Secretary must establish is that the proposed abatement measures “are
capable of being put into effect and that they would be effective in materially
reducing the incidence of the hazard.” Beverly Enters., Inc., 19
BNA OSHC 1161, 1190 (No. 91-3344, 2000) (consolidated). Here, the Secretary proposes several methods
of abatement in the citation:
Among
other methods, feasible and acceptable methods to correct
this hazard is to:
(1)
Follow the American Society of Mechanical Engineers (ASME B30.9-1996, Slings)
Safety Standard for Cableways, Cranes, Derricks, Hoists, Hooks, Jacks, and
Slings, Section 9-2.9: Operating Practices, which states:
(h) Portions of the human body should be kept from between
the sling and the load and from between the sling and the crane hook or hoist
hook
(i) Personnel should stand clear
of the suspended load
(r) The sling’s legs should contain or support the load so
that the load remains under control.
(2)
Follow 29 CFR [§] 1910.184(c)(6) Slings shall be
securely attached to their loads.
(3)
Reject burial vaults with manufacturer flaws that can affect the stability of
the suspended load.
Before
the judge, the Secretary focused on only the first of these measures, asserting
that, because of Peacock’s hands-on method of crypt placement, employees failed
to stand clear of suspended loads. As
such, we consider only this proposed abatement measure. See
Ala. Power Co., 13 BNA OSHC 1240, 1246 (No. 84-357, 1987) (excluding
abatement measure because it “would be unfair for us to find [a] violation for
failing to institute [a] . . . method that was not raised [or] litigated
below”). In considering this measure, the
judge, noting the discretionary nature of the ASME standard referenced in the
citation, found that Peacock had implemented this proposed abatement measure by
requiring its employees to stand clear of the suspended crypts most of the time—that
is, until the loads were 1-2 feet off the ground.
We agree with the judge’s finding that the Secretary failed
to show standing clear of the load was a feasible method of abatement. The citation, by referencing the non-mandatory
ASME standard, alleges that the company failed to have its employees stand
clear of the suspended crypts to the extent feasible and, further, that it was indeed
feasible for Peacock’s employees to stay clear of the suspended crypts
throughout the installation process. According
to the Secretary, this could be accomplished by using either tag lines (attached
to the crypt at its opposing corners) or a guide pole (about 15 feet long) to
maneuver and place the crypts; both, the Secretary claims, would keep employees
at a safe distance and materially reduce the proven hazards.[6] As the judge found, the “primary problem”
with using tag lines or a pole was one of “precision.”
Each crypt had to be placed precisely,
otherwise the whole row could end up crooked.
The injured employee testified that the crypts were too heavy to move
with a pole at all (let alone with the necessary precision), and Peacock’s
president testified that it would be very difficult to make minute adjustments
when standing 15 feet away. The
Secretary takes issue with the notion that the feasibility of standing clear of
the suspended crypts depends on whether the work needed to be done from 15 feet
away, asserting that the ASME standard does not require such a large
distance. This assertion, however, is
undermined by his own expert, a member of OSHA’s Salt Lake City health response
team, who testified that it “is optimal to have the individuals 15 feet away,”
and that he “could see anywhere from 10 to 15 feet [being] a reasonable
distance.” Also, the Secretary does not
specify what shorter distance would provide the requisite protection. Cf.
J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2207 (No. 87-2059, 1993)
(“[W]here a standard does not specify the means for compliance with its terms,
due process requires that the Secretary present evidence showing a feasible
method by which the employer can satisfy the standard.”).
Moreover, the evidence upon which the Secretary relies does
not establish the feasibility of the stand-clear method. While the opinion of the Secretary’s expert was
that the crypts could be installed using tag lines and poles in conjunction
with a crane, he was not asked if any of his experience involved maneuvering
suspended loads with a similar degree of precision as is involved with
Peacock’s installation of burial crypts.
In addition, the ASME standard does not specifically address the high
degree of precision required in Peacock’s installation work. Thus, we conclude that the Secretary has
failed to show that standing clear of the load—the only measure upon which he
now relies—was a feasible method of abatement and therefore, has failed to
establish a violation of the general duty clause.
Accordingly,
we vacate Item 1.
SO ORDERED.
/s/
Heather
L. MacDougall
Acting
Chairman
/s/
Dated: April 27, 2017 Cynthia
L. Attwood
Commissioner
Some personal identifiers have been redacted for privacy
purposes
UNITED
STATES OF AMERICA
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY OF LABOR, |
|
Complainant, |
|
v. |
|
PEACOCK ENGINEERING, INC.,
|
|
Respondent. |
OSHRC DOCKET NO. 11-2780
Appearances:
Grace Kim, Esq. and Natalie Nardecchia, Esq., Office of the Solicitor, U.S. Department
of Labor, Los Angeles, California
For Complainant
James A. D’Ambrosio, Esq.,
Stark & D’Ambrosio, LLP, San Diego, California
For Respondent
Before: Administrative Law Judge Patrick B. Augustine
DECISION AND ORDER
I.
Procedural
History
This proceeding is before
the Occupational Safety and Health Review Commission (“the Commission”)
pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the
Act”). The Occupational Safety and
Health Administration (“OSHA”) conducted an inspection of a Peacock
Engineering, Inc. (“Respondent”) worksite in Miramar, California on May 20–24,
2011. As a result of the inspection,
OSHA issued a Citation and Notification of Penalty (“Citation”) to Respondent
alleging seven serious violations of the Act.[7] Respondent timely contested the Citation, and
a trial was held on November 13–15, 2012 in San Diego, CA. Both parties filed post-trial briefs.
II.
Jurisdiction
The parties have stipulated that the
Act applies and the Commission has jurisdiction over this proceeding pursuant
to § 10(c) of the Act, 29 U.S.C. § 659(c).
(Jt. Ex. 1). Further, Respondent
also stipulated that, at all times relevant to this matter, it was an employer
engaged in a business affecting commerce within the meaning of § 3(5) of the
Act, 29 U.S.C. § 652(5). Slingluff v. OSHRC, 425
F.3d 861 (10th Cir. 2005).
III.
Stipulations
The parties
submitted Joint Stipulations to the Court, which are set forth below:
IV.
Settled
Citations
On the
first day of trial, the parties agreed to settle Citation 1, Items 2a and 2b,
and Item 4. (Tr. 14–15). Citation 1, Items 2a and 2b were grouped
together for penalty purposes and alleged serious violations of 29 C.F.R. §
1926.54(d) and 29 C.F.R. § 1926.54(e), respectively. The parties agreed to re-classify these
violations as other-than-serious and reduce the penalty from $1,800 to
$900. Citation 1, Item 4 alleged a serious
violation of 29 C.F.R. § 1926.301(d) with a proposed penalty of $1,800. The parties agreed to re-classify this
violation as other-than-serious and reduce the penalty to $900. No other changes were made as a part of this
agreement. (Tr. 15).
V.
Findings of
Fact[8]
Respondent
is a subcontractor that installs crypts at national cemeteries around the
United States, including, as is relevant to the present matter, Miramar
National Cemetery (“worksite”). (Jt. Ex.
1). Respondent was hired by a general
contractor, KevCon, which was in charge of the
worksite as a whole. (Tr.
449). KevCon,
in turn, was hired by the Veteran’s Administration (“VA”), which manages the
cemetery. (Tr. 449). Respondent employs between 10 and 12
employees. (Tr. 440). At the time of the inspection, Respondent was
working on two crypt installation projects—the project at Miramar National
Cemetery and another project at Riverside National Cemetery. (Tr. 440). Since 1995, Respondent’s President, Larry
Peacock, stated that the Respondent had installed approximately 400,000
crypts. (Tr. 438–40). At the Miramar worksite, Respondent had
installed approximately 11,000 crypts. (Tr. 440).
In order to install 11,000 crypts,
1.5 to 2 acres of land was excavated in order to place the crypts below ground
level. (Tr. 48, Ex.
C-1, C-4). Once the area was
cleared, Respondent used a series of uncapped, reinforced steel bars (“rebar”),
which were pounded into the ground and connected by a chalk line, to ensure
that the crypts were properly aligned in even rows. (Tr. 56). The crypts were delivered by a flatbed truck
to the worksite by the crypt manufacturer, Universal Precast. (Tr. 48–49, 449). Upon delivery, an engineer from the VA would
inspect each crypt for defects. (Tr. 449). If the
crypt passed inspection, the VA engineer would mark it with a red dot; however,
if it did not pass inspection, the crypt would be marked with a green dot. (Tr. 465–68).
Once the crypts had been delivered
and inspected, Respondent moved the crypts that passed inspection from the
delivery area to a staging area, where the crypts were placed much closer to
their final resting place. (Tr. 49). Respondent
used a rough terrain forklift, SkyTrak Model 10054,
to move the crypts to the staging area. (Tr. 49, Ex. J-1, C-12).
Respondent then used an excavator, LBX Link-Belt 225, to move the crypts
from the staging area to the spot where they would finally be installed. (Tr. 56, Jt. Ex. 1). Both the excavator and the forklift were
fitted with lifting devices, which were custom-designed by Mr. Peacock to lift,
transport, and install the crypts. (Jt.
Ex. 1).
The crypts
were manufactured with pre-cut grooves, which ran the length of both sides of
the crypt and then angled upwards at the corners. (Tr. 463, Ex. C-3, C-5). When the crypts were lifted, the custom
lifting devices were attached to the pre-cut grooves with two 7/16-inch wire
slings—oriented in a basket hitch—which were attached to a spreader bar. (Ex. C-7, C-29). The primary difference between the forklift
and the excavator was the manner in which the custom device was attached to the
boom. The custom lifting device was
attached to the boom of the excavator through a series of two shackles and a
hook, which connected to a swiveling eye bolt that was attached to the spreader
bar. (Ex. C-7). The custom device attached to the forklift
had a similar series of connecting devices starting at the spreader bar;
however, the manner in which it was attached to the boom was much
different. (Ex. C-13). Whereas the lifting device was attached to
the excavator boom by attaching a shackle to a pre-existing anchorage point,
Respondent connected to the forklift boom a U-shaped attachment that was
composed of three metal plates that were welded together and held steady with
two cotter pins. (Tr.
93, Ex. C-14). Respondent welded
an eye bolt onto the outward facing metal plate, and the custom lifting device
was connected to the forklift boom through the welded eye bolt. (Ex. C-14, C-15).
Each burial crypt weighs 8,472
pounds. (Tr. 58, Ex.
C-28). Both the excavator and the
forklift have plates affixed to them that indicate their load capacities at the
time of manufacture. (Tr.
373, Ex. C-10, C-19). In the case
of the excavator, a chart is provided to illustrate the maximum capacity based
on certain variables, such as bucket size, arm length, load radius, and load
height. (Ex. C-10). In the case of the forklift, the plate
indicates a maximum capacity of 10,000 pounds.
(Ex. C-19).
Neither of the custom accessories has been labeled to indicate their
load capacities; rather, the only information regarding the capacity of the
custom accessories is the Certex sling chart, which
indicates the load capacity of the 7/16-inch slings used by Respondent when
placed in specific configurations. (Ex. C-29). The
parties dispute which configuration was being used—Respondent contends that the
slings were oriented in a vertical basket, which has a load capacity of 3.9
tons per sling, whereas Complainant argues that the slings were oriented at an
angle, which can reduce the load capacity to as little as 1.9 tons per
sling. (Ex. C-29). As regards the sling configuration, the Court
credits the testimony of Complainant’s expert and professional engineer, James
Nelson, who testified that the orientation of the sling legs in Exhibit C-24
were at an angle relative to the horizontal point of engagement on the
crypt. (Tr. 348–349). Mr. Nelson’s understanding is confirmed by
the diagrams contained in the Certex sling chart,
which show the orientation of the sling legs relative to the load. (Ex. C-29). This understanding also comports with the
definition provided for “angle of loading” provided in 29 C.F.R. § 1910.184(d).[9] Mr. Nelson also credibly testified as to the
impact the angled orientation of the slings would have on their tensile
strength, which explains the reduction in load capacity at different angles.[10] (Tr. 351–52). The Court, however, is not as convinced by
Mr. Nelson’s assessment of the sling angle.
Mr. Nelson attempted to guess at the angle of the slings based upon
Exhibit C-24, which shows the slings attached to the crypt but not under full
load. (Tr. 350).[11] Mr. Nelson testified that the slings, not
under full load, appeared to be at 30 degrees; however, he also testified that
under a full load, it could be more than that.
(Tr. 349, Ex. C-24). Ultimately, Mr. Nelson testified that trade
practice dictates that if the angle of the slings falls between two angles, it
is proper to choose the lesser angle to determine load capacity. (Tr. 350). That said, Mr. Nelson’s assessment of the
sling angle is not based upon actual measurement, nor
on actual operating conditions. For the
above stated reasons, the Court finds the testimony of Mr. Nelson, as it
relates to the sling angle, should be accorded little weight. Accordingly, the Court finds that, at worst,
the combined sling capacity is 3.8 tons (7,600 pounds); however, given Mr.
Nelson’s testimony that the angle would be greater under full load, the
combined capacity of the slings is likely greater.
Each of the crypts has to be aligned
within a quarter-inch of the parallel chalk line and set next to one another in
evenly spaced 8-foot increments. (Tr. 474–75, Ex. C-4, C-7).
In order to achieve this, the final step in the installation process
involves two employees—an employee to operate the excavator and another ground
employee to guide the crypt. (Tr. 234). The
excavator operator affixes the sling legs to the pre-cut grooves on the crypt
by hand, returns to the excavator, and swings the crypt into position for final
placement. (Tr. 236,
239). As the crypt is being moved
into position, the ground employee stands clear of the load. (Tr. 240–43). Once the crypt is in position, the excavator
operator lowers the crypt to a height of 1–2 feet off of the ground. (Tr. 241). At this point, the ground employee stands
approximately 2 feet away from the crypt and maneuvers it by hand in order to
get the proper alignment, in some cases spinning it in order to achieve the
proper orientation. (Tr. 241, Jt. Stip.
No. 8). Once it is properly aligned, the
excavator operator sets the crypt down on a patch of pea gravel, which allows
for proper drainage and leveling of the crypt.
(Tr. 235).
Using a laser, Respondent ensures that the crypt is level and is at the
proper elevation. (Tr.
450). If the crypt is not level,
the excavator operator will lift the crypt out of position and allow the ground
employee to add, spread, or remove pea gravel to achieve the proper
elevation. (Tr.
247–48). This leveling process
would be accomplished with a long-handled tool, such as a rake or shovel, which
would obviate the need to physically reach under the crypt while it was
suspended. (Tr. 248). If the leveling measurements were
particularly off, then the excavator operator would move the crypt out of the
way to allow the ground employee to place additional gravel in a hard to reach
area. (Tr. 248).
On May 6, 2011,
[redacted] was working as a ground person at the worksite while his foreman,
Tyler Felton, was operating the excavator. During the process of orienting one of the
crypts, one of the wire slings slipped from its pre-cut groove and amputated
[redacted]’s thumb. (Jt. Ex. 1). Further investigation revealed that a latent
defect in the cement caused the sling’s anchor point on the corner of the crypt
to crumble, which, in turn, caused the sling to slip out of place. (Tr. 604). However, when the crypt failed, the sling
slipped upward and tightened down on the upper portion of the crypt, which
prevented it from falling to the ground. (Tr. 605). This incident was reported to Cal-OSHA, who
referred the case to OSHA because the incident occurred on federal
property. (Tr. 45–46). An investigation was conducted on May 20–24,
2011 by Compliance Safety and Health Officer (“CSHO”) Pete Mollenberndt. (Tr. 46). As a result of his inspection, CSHO Mollenberndt issued the Citation.
VI.
Controlling
Case Law
To
establish a prima facie violation of Section
5(a)(2) of the Act, Complainant must prove by a
preponderance of the evidence that: (1)
the standard applies to the cited condition; (2) the terms of the standard were
violated; (3) one or more of the employees had access to the cited condition;
and (4) the employer knew, or with the exercise of reasonable diligence could
have known, of the violative condition. Ormet Corporation, 14 BNA OSHC
2134 (No. 85-0531, 1991).
To
establish a prima facie violation of
Section 5(a)(1) of the Act, also known as the general duty clause, Complainant
must prove by a preponderance of the evidence that: (1) a condition or activity in the workplace
presented a hazard to employees; (2) the employer or its industry recognized
the hazard; (3) the hazard was likely to cause death or serious physical harm;
and (4) a feasible and effective means existed to eliminate or materially
reduce the hazard. Kokosing Constr. Co., 17 BNA OSHC 1869 (No. 92-2596, 1996). The evidence must also show that the employer
knew or with the exercise of reasonable diligence, should have known of the
hazardous condition. Otis Elevator Company, 21 BNA OSHC 2204
(No. 03-1344, 2007).
A
violation is “serious” if there was a substantial probability that death or
serious physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k).
Complainant need not show that there was a substantial probability that
an accident would actually occur; he need only show that if an accident
occurred, serious physical harm could result.
Phelps Dodge
Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible injury addressed by a
regulation is death or serious physical harm, a violation of the regulation is
serious. Mosser Construction, 23 BNA
OSHC 1044 (No. 08-0631, 2010); Dec-Tam
Corp., 15 BNA OSHC 2072 (No. 88-0523, 1993).
VII.
Conclusions
of Law
A.
Citation 1,
Item 1
i.
General Duty Clause
Complainant
alleged a serious violation of the Act in Citation 1, Item 1 as follows:
Section 5(a)(1) of the
Occupational Safety and Health Act of 1970:
The employer did not furnish employment and a place of employment which
were free from recognized hazards that were causing or likely to cause death or
serious physical harm to employees in that employees were exposed to
amputation, struck by and crushed by hazard, while guiding a suspended load by
hand.
a)
Miramar National Cemetery – On or about 06MAY11, an employee suffered
an amputation injury when the burial crypt he was guiding by hand slipped in
its wire rope basket hitch, the wire rope left grooves cut into the corner of
the burial crypt, the employee’s hand was positioned above the basket hitch on
the suspended load, the burial crypt slipped down approximately eight inches
before the wire rope hitch caught it, the employees left hand was caught by the
wire rope at his left thumb, amputating the thumb.
Among other methods, feasible and
acceptable methods to correct this hazard is to:
(1)
Follow the American Society of Mechanical Engineers (ASME B30.9-1996,
Slings) Safety Standard for Cranes, Derricks, Hoists, Hooks, Jacks, and Slings,
Section 9-2.9: Operating Practices,
which states:
(h) Portions of the human body
should be kept from between the sling and the load and from between the sling
and the crane hook or hoist hook.
(i)
Personnel should stand clear of the suspended load
(r)
The sling’s legs should contain or support the load so that the load
remains under control
(2)
Follow 29 C.F.R. 1910.184(c)(6) Slings shall
be securely attached to their loads.
(3)
Reject burial vaults with manufacturer flaws that can affect the
stability of the suspended load.
The cited standard provides:
Each employer shall furnish to each of his employees
employment and a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical harm to his
employees.
29 U.S.C. §
654(a)(1).
This citation is directed at the
work method described above, which Respondent employs to install the burial
crypts in their final resting place. In
particular, Complainant cited Respondent for exposing its employees to
amputation, crushing, and struck-by injuries during the course of guiding a
suspended crypt by hand.
First, the Court must determine
whether the work method employed by Respondent presented a recognized hazard to
its employees. According to
Complainant’s expert, Mr. Nelson, there is no safe location to place one’s
hands on a suspended load, which is one part of Respondent’s work method. This conclusion is based, in part, upon the
American Society of Mechanical Engineers (ASME B30.9-1996, Slings) Safety
Standard for Cable-Ways, Cranes, Derricks, Hoists, Hooks, Jacks, and Slings,
which is a set of consensus standards governing the use of slings. (Ex. C-30). Although many of the specific provisions were
discussed at trial, the three that are most pertinent to this discussion are
subsections (h), (i), and (r), which are referenced
above. (Ex. C-30).
Complainant contends that the work method employed by
Respondent is hazardous in light of Respondent’s failure to adhere to these
standards. Specifically, Complainant argues
that Respondent’s work practice is unsafe in light of the following: (1) Respondent uses a basket hitch sling
configuration, which is prone to disengagement from the load because there is
no positive contact between the load and lifting mechanism; (2) the purported
insufficiency of the load capacity of the slings and custom lifting accessory
increased the potential for disengagement; and (3) the use of hydraulic
equipment, which Complainant’s expert testified is jumpy and erratic,
increasing the likelihood of the crypt swinging unexpectedly. (Tr. 338–40).
Respondent, on the other hand, argues that its extensive use
of this equipment and method without incident shows the absence of a recognized
hazard because its method for aligning crypts by hand requires that employees
to keep their bodies and body parts out of specified “kill zones”, wherein the
potential for injury is high. (Tr. 446, Ex. R-5).
The Court finds that working around
suspended loads is a hazard that is recognized both by the industry engaged in
hoisting materials and by Respondent specifically. See Kokosing, 17 BNA OSHC at 1873 (voluntary industry codes
may be used to demonstrate industry recognition). However, in light of; (i)
the training provided by Respondent; (ii) the work methods Respondent employs;
and (iii) the Complainant’s own recognition that every method of abatement
identified in its Citation as being feasible to eliminate the hazard is being
done by the Respondent, the Court finds that Respondent’s employees were not
exposed to the hazard identified by Complainant.
First, the
Court would note that, with the exception of when the load is 1–2 feet off of
the ground, Respondent’s employees stand clear of the suspended load. It is not clear to this Court that the ASME standard,
which states that “[p]ersonnel should stand clear of
the suspended load,” is absolute. The
standard is couched in discretionary (should) rather than mandatory (shall)
terms, and both experts stated that there are circumstances in which employees
need to stand near a suspended load in order to guide it. (Tr. 317, 398, 603–604). Mr. Nelson, Complainant’s expert, testified
that the nature and difficulty of certain work, such as handling I-beams,
allows for work on suspended loads. (Tr. 397–98). This
understanding is confirmed by the standards found at 29 C.F.R. § 1926, Subpart
CC, Cranes and Derricks in Construction, which allows for employees to stand
within the fall zone when guiding a load.
See 29 C.F.R. §
1926.1425(b). Further, the Court would
also note that subsections (h) and (i) of the ASME
standards appear to be at odds with one another. If employees are always supposed to stand
clear of suspended loads, then it would appear unnecessary to also require that
they keep their hands and body parts from between the sling and the load. That is, unless, there are circumstances in
which employees need to stand near the suspended load in order to guide it; in
which case, the employee would need to be sure to avoid placing their hands
and/or body parts in a position where there is a potential pinch point. Unfortunately for [redacted], the hazard
associated with placing your hands between the sling and the load came to
fruition; however, the Court finds that this was a product of his failure to follow
work rules, not from the hazard associated with standing near suspended loads.[12]
Second, the Court is unconvinced by
Complainant’s other assertions regarding the purported problems associated with
Respondent’s use of a basket hitch configuration or its use of an excavator to
hoist the crypts. The basket hitch
configuration of the sling is clearly an acceptable method for hoisting as it
is listed in both the Certex load capacity chart (Ex.
C-29) as well as in 29 C.F.R. § 1910, Subpart N. See 29
C.F.R. § 1910.184 fig. N-184-4. Merely opining that such a configuration is
prone to disengagement, without describing why Respondent’s use of that
particular set-up was deficient—and in the face of OSHA standards that allow
its use—is insufficient to establish a hazard.
As noted above, the Court is also unpersuaded by Mr. Nelson’s
calculation of the sling angle and, thus, his determination of the sling
capacity. The Court’s conclusion is
buttressed by the fact that Respondent has used this particular set-up
thousands of times without an incident involving the actual ability of the
slings to hold the load.[13]
Finally, the Court does not find
that the use of a hydraulic excavator imposed a unique hazard as posited by Mr.
Nelson. Respondent’s expert, Mr. Harrell,
credibly testified that, although hydraulic equipment used to present the
problem of erratic movement, such concerns have been remedied through the
advances in hydraulic technology. (Tr. 587–88). The
Court is convinced in particular by Mr. Harrell’s experience operating and
training the operation of such equipment, as well as his testimony regarding
the use of hydraulic excavators to carry suspended loads in construction and
underground work. (Tr.
557, 587).
The Court is also unconvinced that Respondent
was aware of the hazard identified by Complainant. If the hazard addressed by this citation item
is, as the proposed abatement suggests, the potential for amputation injuries
as a result of the sling not being securely attached to the load, the Court
finds that such problems were not attributable to the work method employed by
Respondent. The injury suffered by
[redacted], while unfortunate, was the product of a latent defect in the crypt
that could not have been foreseen by Respondent. Each crypt was quality checked by a VA
engineer prior to being transported to the staging area. Although, as Complainant points out, loads
had slipped in the past, nobody testified that the lifting system failed;
rather, this was a product of crypt defects, most of which were caught prior to
being installed. (Tr.
468–69). Respondent accounted for
this by training its employees to look at the crypt grooves prior to attaching
the slings and to place their hands below the sling and out of the way of the
pinch point.[14] (Tr. 245, 469–70). Ultimately, the Court finds that Respondent
used reasonable diligence to uncover and address the hazards at its
worksite. See N & N Contractors, Inc. v. OSHRC,
255 F.3d 122, 127 (4th Cir. 2001).
As previously stated, the Court is
reluctant to find exposure to a hazard existed when every means of abatement
identified by the Complainant in his citation item was performed by the
Respondent. Lastly, the means of
abatement suggested by Complainant in this citation item (reproduced above)
were all performed by Respondent: (1)
personnel stood clear of the suspended load as it was being moved into its
final position, and it was not until it was 1-2 feet above the ground that an
employee, standing 2 feet away from the load, would align the load by hand; (2)
Respondent trained its employees to keep body parts away from between the sling
and the load, or “kill zones”; (3) the sling’s legs contained and supported the
load so that it remained under control—only when the load itself crumbled due
to a defect did the load slip, and even then the slings kept the crypt
elevated; and (4) crypts with observable manufacturer flaws were rejected by
either the VA or Respondent. Not only
did Complainant fail to prove that Respondent’s measures were inadequate, he
identified abatement measures that were, for the most part, already being
implemented.
At trial,
fully aware that the Respondent had implemented all the methods of abatement
suggested by the Complainant, the Complainant attempted to propose “new”
alternative methods of abatement, such as tag lines, a rigid 15-foot long pole,
or a template, which were not identified in the citation item.[15] With respect to these “new” alternative
methods of abatement, the Court notes that litigation is not a moving target
that permits a party, in the face of strong countervailing evidence, to
continually throw the proverbial dart until a theory of liability sticks. Notwithstanding, Complainant still failed
to prove that these “new” implements were feasible or an effective means to
address the hazards associated with working on a suspended load. In addition to the problem of how tag lines
or a rigid pole could be attached to the load in order to align it, the primary
problem was one of precision.
Complainant’s expert testified that using one’s hands would be a quicker
way of accomplishing the task of alignment; however, he did not believe that a
hands-on approach would be any more precise.
(Tr. 473).
The Court disagrees. Mr. Peacock
testified that the crypts had to be placed precisely within a specified area of
inches or the whole row of crypts could be crooked, thereby disrupting the
precision required for the placement of thousands of crypts. (Tr. 450, 474–75). To that end, Mr. Peacock stated that it would
be near impossible to make the sort of minute adjustments necessary when
standing 15 feet away from the crypt. (Tr. 479–80).
Further, [redacted] stated that the use of a rigid pole would not be
practical because the loads were simply “too heavy” to move with a pole. (Tr. 287). Mr. Harrell also testified that the use of a
rigid pole may result in a greater hazard.
If a crypt abruptly shifted with the pole resting on it, this could
result in the pole being jammed back into the body of the holder of the pole. (Tr. 607). Complainant failed to prove that Respondent’s
measures were inadequate or that the measures it proposed were feasible and
effective.
The Court
finds that Complainant failed to prove a violation of the general duty clause
for the reasons stated above . Accordingly, Citation 1, Item 1 based upon an
alleged violation of the general duty clause will be VACATED.
ii.
Training Violation[16]
On
September 11, 2012, Complainant filed a Motion
for Leave to Amend the Complaint and Citation, which was granted by the
Court. Complainant requested leave to
amend Citation 1, Item 1 to plead in the alternative a violation of 29 C.F.R. §
1926.21(b)(2). The cited standard
provides:
The employer shall instruct each employee in the
recognition and avoidance of unsafe conditions and the regulations applicable
to his work environment to control or eliminate any hazards or other exposure
to illness or injury.
29 C.F.R. §
1926.21(b)(2).
The cited standard requires
Complainant to prove that “the cited employer failed to provide the
instructions that a reasonably prudent employer would have given in the same
circumstances.” El Paso Crane & Rigging Co., 16 BNA
OSHC 1419, 1424 (No. 90-1106, 1993).
“Thus, the obligation to train ‘is dependent upon the specific
conditions [at the worksite], whether those conditions create a hazard, and
whether the employer or its industry has recognized the hazard.’” Compass
Environmental, Inc., 23 BNA OSHC 1132 (No. 06-1036, 2010) (citing W. G. Fairfield Co., 19 BNA OSHC 1233
(No. 99-0344, 2000)). When the
Respondent produces evidence of training, then the burden shifts to the
Secretary to show that training was inadequate or that the employee otherwise
was unable to recognize and avoid the hazards. N & N Contractors, Inc., 18 BNA OSHC 2121, 2126–27 (No. 96-0606,
2000).
The Court finds that the standard
applies; however, the Court does not find that the standard was violated. Respondent had a training program in place
that addressed the specific hazards identified by Complainant. As noted above, Respondent’s program
identified specific “kill zones” wherein employees could be stuck or crushed by
suspended loads, as well as the specific locations where it was proper to place
one’s hands or feet during the alignment of the crypts. Each of these instructions was specifically
tailored to the concerns highlighted by Complainant in this citation item. This program was reiterated to its employees
through initial training and tail gate meetings, wherein employees had to sign
in and indicate that they were present and had received the information. (Tr. 274, 441–42, 495, Ex.
R-4, R-5, R-6).
Complainant contends that
Respondent’s training program was inadequate on two separate bases: (1) its employees were exposed to hazards
when they were working in close proximity to suspended loads; and (2)
[redacted] could not recall the specifics of his training, which indicates that
Respondent’s training program was not sufficiently specific so as to be
remembered. See Pressure Concrete, 15 BNA OSHC 2011, 2017 (No. 90-2668, 1992)
(“A reasonably prudent employer would attempt to give instructions that are
understood and remembered by its employees, and would make at least some effort
to assure that the employees did, in fact, understand the instructions.”). As to (1), the Court has already addressed
how Respondent addressed the hazards associated with working on suspended loads
in its discussion regarding the general duty clause and concluded that
Respondent’s employees were not exposed to a hazard. With respect to (2), the Court finds that,
although it is important to ensure that current employees both understand and
remember the instructions given by their employer, by the time of trial,
[redacted] had not worked for Respondent for almost a year-and-a-half. (Tr. 226). It is understandable that he may not recall
specifics about the training that he received or that which he provided as a foreman. That said, even though he was not able to
recall specific terminology or instructions, he was able to generally recall
certain prohibitions that were put in place by Respondent, such as not pulling
on the cables, not getting between crypts, watching your feet, and the distance
he was supposed to stay away from the suspended crypt. (Tr. 287–89). The general principles enunciated by
[redacted] reflect that Respondent provided adequate training to its
employees. [redacted]’s inability to
recall specific terminology, such as “kill zone”, or the particular discussions
that were had at tailgate meetings or even his initial orientation is not
indicative of faulty training; rather, it is to be expected considering that it
had been over a year-and-a-half since he had worked for Respondent and, thus,
he had no need to recall such terms or implement the training provided.
Based on the foregoing, the Court
finds that Complainant failed to prove a violation of the general duty clause,
or, in the alternative, a violation of 29 C.F.R. § 1926.21(b)(2). Accordingly, Citation 1, Item 1 will be
VACATED.
B. Citation 1, Item 3
Complainant alleged a serious
violation of the Act in Citation 1, Item 3 as follows:
29 C.F.R. 1926.251(a)(4): Special custom design lifting accessories for
material handling were not marked to indicate the safe working loads and were
not proof tested prior to use to 125 percent of their rated load(s):
a) Miramar National
Cemetery: On or about 24MAY11, an LBX
Link-Belt 225 Excavator, SN ECAJ8-3866, was equipped with un-tested and
un-marked custom lifting accessory used to lift and transport concrete burial
vaults weighing 8,472 pounds.
b) Miramar National Cemetery –
On or about 24MAY11, a SkyTrak 10054 rough terrain
fork lift, SN 0160003864, was equipped with un-tested and un-marked custom
lifting accessory used to lift and transport concrete burial vaults weighing
8,472 pounds.
The cited standard provides:
Special custom design grabs,
hooks, clamps, or other lifting accessories, for such units as modular panels,
prefabricated structures and similar materials, shall be marked to indicate the
safe working loads and shall be proof-tested prior to use to 125 percent of
their rated load.
29 C.F.R. §
1926.251(a)(4).
By its terms, the cited standard
applies to custom design lifting accessories for material handling. Id. Mr. Peacock, president of Respondent,
designed the custom lifting accessories that were attached to both the forklift
and excavator. (Jt. Ex. 1). Thus, the standard applies. The Court also finds that the standard was
violated.
First, the
standard requires that all special custom design lifting accessories “shall be
marked to indicate the safe working loads . . . .” Id. Respondent does not dispute the fact that the
lifting accessory designed by Mr. Peacock was not marked. Rather, Respondent contends that § 1926.251(a)(4) is “one of those standards in which there is no
presumption a hazard exists when its terms are not met.” (Resp’t
Br. at 26). In support of this
argument, Respondent cites to Anoplate Corp., 12
BNA OSHC 1678 (80-4109, 1986), wherein the Commission held that 29 C.F.R. §
1910.94(d)(9)(v) required the Secretary to prove a significant
risk of harm. The Commission imposed
such a burden on the Secretary because the requirement to wear eye protection
was prefaced by the phrase “whenever there is a danger of splashing . . . .” 29 C.F.R. § 1910.94(d)(9)(v). By using such a phrase in promulgating the
regulation, the Secretary left it to the Commission to determine whether there
was a significant risk of harm on a case-by-case basis. Anoplate, 12 BNA OSHC 1678.
In other words, the standard in Anoplate did not presume a hazard when its terms were not
met because the requirement to wear eye protection was conditioned by the
presence of a splashing hazard. Id.
The standard cited in this case, however, presumes that there is a
significant risk of harm associated with the failure to mark equipment and
proof test it to 125% of its rated load.
There is no precedent condition that activates the requirement to tag
and test custom lifting accessories, there is only a mandate that such actions
shall be taken. Although Respondent is
technically correct that the failure to mark the equipment does not render its
use presumptively hazardous, the standard is intended to prevent the hazard of
overloading equipment and accessories.
Thus, with respect to the first requirement—marking the load capacity on
custom lifting accessories—Respondent violated the standard.
Respondent also violated the second
part of the standard. In addition to
marking the safe capacity of the custom lifting accessories, Respondent is also
required to proof test the accessories to 125 percent of their rated
loads. Respondent’s failure to comply is
two-fold: (1) It is unclear that
Respondent was aware of what the rated load of the accessories were; and (2)
Respondent failed to conduct a proof test up 125 percent of the accessories’
rated loads. According to the
definitions found in 29 C.F.R. § 1910.184(b), which address the use of slings
and material handling equipment in general industry, a proof test is “a
nondestructive tension test performed by the sling manufacturer or an
equivalent entity to verify construction and workmanship of a sling.” See
Simpson, Gumpertz & Heger
Inc., 15 BNA OSHC 1851 (No. 89-1300, 1992) (reiterating the general
principle that standards
containing broad or undefined terms may be given meaning by reference to other standards). First, in order to conduct a proof test,
Respondent must be aware of the rated load of the custom accessory. The only evidence introduced by Respondent
that would indicate knowledge of the rated load was Mr. Peacock’s and Mr.
Harrell’s testimony regarding the capacity of the slings to carry the load,
which they estimated to be 7.8 tons. (Tr. 510–11, 598–99).
This rating, however, does not take into account the angle of loading,
which, as discussed above in Section V, reduces the load capacity of the
slings. Nor, in the case of the forklift
attachment, does it account for the use of an eye bolt that was welded onto the
attachment instead of bolting it to the attachment using the threads. According to Mr. Nelson,
the “most concerning feature of [the design of a load transferring member] is
always the connection.” (Tr. 371). Mr. Nelson
opined that there are many factors that have to be considered when evaluating
the integrity of the weld, including geometry, configuration, and metallurgy of
the weld. (Tr. 372). Neither Mr. Peacock nor Mr. Harrell was able
to provide concrete information about these critical factors that would impact
the load capacity of the custom attachment; Mr. Peacock could not even testify
as to what the rated load capacity of the attachments was. (Tr. 508–509). Without knowledge of the rated capacity of
the custom attachment, Respondent could not have performed a proof test of 125
percent of the rated load.
Even if the
Court were to assume that the rated load of the custom accessory was known,
Respondent failed to conduct an adequate proof test of the accessory. Mr. Peacock testified that a test was
performed on the equipment approximately one month prior to the beginning of
the Miramar project. (Tr.
507). This test involved placing
a crypt loaded with a couple of cubic yards of dirt, weighing roughly 3 tons,
on top of another crypt. (Tr. 456). This means
that the load carried by the attachment was roughly 14,000 pounds. (Ex. C-28). By Respondent’s own admission, however, this
test was not performed for the purposes of testing the custom lifting
attachment; rather, the test was performed to test the structural integrity of
the crypt lids. (Tr.
508). Mr. Peacock also testified
that these tests were performed with the attachment provided by the
manufacturer, which means that the devices that were actually used during the
crypt installation process were not tested.
(Tr. 533–34).
Based on the foregoing, the Court finds that the terms of the standard
were violated.
The Court
also finds that Respondent’s employees had access to the cited condition. [redacted] and other
employees worked in close proximity to the suspended loads during the final
installation process. The failure to
proof test and mark the custom lifting accessories on the forklift and
excavator exposed Respondent’s employees, including the ground person and
equipment operator, to potential crushing and struck-by injuries, because
employees could potentially misjudge the safe lifting capacity of the lifting
devices and overload the equipment, which could lead to failure of the lifting
device.
Respondent
also knew or could have known of the violative condition. Mr. Peacock, president of Respondent, was
responsible for the design and creation of the custom lifting accessories on
both the forklift and the excavator. Mr.
Peacock also testified that he was aware that the custom devices were not
marked to indicate their safe working loads.
(Tr. 502).
Finally, Mr. Peacock also testified that the test performed on the
crypts was actually done with the attachment provided by the crypt
manufacturer, which means that, even if the test was a legitimate means of
determining 125% of the attachment’s rated capacity, the test was not performed
with the equipment indicated in this citation item. Respondent was directly aware of violative
condition.[17]
The
violation was also serious. CSHO Mollenberndt testified without dispute that, if an accident
occurred, there was a substantial probability that death or serious physical
harm could result if an accident occurred.
(Tr. 126–27).
As noted above, the custom lifting accessory could be overloaded and
fail, which would expose employees to crushing injuries as well as the
possibility of being struck by the suspended 8,472-pound crypt while working in
the vicinity of the forklift or excavator.
Accordingly, Citation 1, Item 3 will be AFFIRMED.
Citation
1, Item 5
Complainant alleged a serious violation of the Act in
Citation 1, Item 5 as follows:
29 C.F.R. 1926.602(c)(1)(ii): Modifications or additions which affect the
capacity or safe operation of the equipment were made without the
manufacturer’s written approval:
a) Miramar National Cemetery –
On or about 24MAY11, a SkyTrak 10054 rough terrain
forklift, SN 0160003864, removed the manufacturer forks, and added an employer
crafted, custom attachment on the end of the boom without approval of the
manufacturer.
The
cited standard provides:
No modifications or additions which affect the
capacity or safe operation of the equipment shall be made without the
manufacturer's written approval. If such modifications or changes are made, the
capacity, operation, and maintenance instruction plates, tags, or decals shall
be changed accordingly. In no case shall the original safety factor of the
equipment be reduced
29 C.F.R. §
1926.602(c)(1)(ii).
According to 29 C.F.R. §
1926.602(a), the rules contained therein apply to earthmoving equipment, such
as “scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway
trucks, graders, agricultural and industrial tractors, and similar
equipment.” More specifically,
subsection (c) applies to lifting and hauling equipment. See 29 C.F.R. 1926.602(c).
The forklift clearly falls under the rubric of lifting and hauling
equipment. Accordingly, the standard
applies.
In order to prove that that the
terms of the standard were violated, Complainant must establish: (1) there was an addition or modification to
the forklift, (2) that affected the forklift’s capacity or safe operation, and
(3) Respondent failed to procure the manufacturer’s written approval. See id.
§ 1926.602(c)(1)(ii).
First, Respondent admitted that it did not receive the manufacturer’s
approval to make modifications to the forklift.
(Tr. 513).
Second, the Court finds, at the very least, there was an addition to the
forklift to the extent that Respondent created a custom lifting accessory that
was connected to the boom by means of a custom attachment. (Ex. C-13, C-14). In other words, because the attachment itself
was not made by the manufacturer, Respondent was required to craft a connection
point to attach the custom lifting assembly to the boom of the forklift. Thus, the sole operative question for the
resolution of this citation item is whether the capacity or the safe operation
of the forklift was affected by the addition.
The Complainant has the burden of proof to present credible objective
and verifiable evidence that either the capacity or the safe operation of the
forklift was affected in order for it to prevail.
Complainant contends that the
standard was violated because the anchorage point of the forklift was altered,
which resulted in the forklift lifting the crypts from above the load instead
of from below it. (Tr.
126, 160). Additionally,
Complainant’s expert, Mr. Nelson, was most concerned about the stability of the
weld, which was main point of connection between the custom lifting device and
the boom of the forklift. (Tr. 371–72, 431).
Respondent argues that the equipment never failed and that the removal
of the fork attachment to the forklift actually increased its capacity from
10,000 pounds to 29,805 pounds.[18] Respondent’s expert testified that the use of
a custom attachment did not alter the capacity of the forklift itself, nor did
the attachment render the use of the forklift unsafe as evidenced by the
thousands of times it had been used prior to the inspection without incident. (Tr. 583–86).
First, the Court does not find that
the removal of the forks changed the capacity of the forklift from 10,000
pounds to 29,805 pounds as contended by the Respondent. The terms “Maximum Capacity” and “Maximum
Weight Without Attachments” that are used in Exhibit
C-19 should be given their common sense meaning. As such, the Court finds that the both terms
do not refer to the same thing, i.e., different load carrying maximums; rather,
the former refers to the forklift’s capacity to lift and the latter refers to
how much the forklift weighs without anything attached to it. According to Exhibit C-19, the maximum
capacity for the forklift was 10,000 pounds as designed by the manufacturer. (Tr. 373). Thus, any changes made to the forklift that
altered its capacity needed to be approved by the manufacturer.
It is
interesting to note, however, that neither party discussed the asterisk on the
manufacturer’s plate, which states “Refer to load capacity chart for truck with
attachment and individual load ratings stamped on forks, if equipped. Use lowest capacity of all ratings.” (Ex. C-19). What this suggests is that the capacity of
the forklift is dependent upon the attachments used and, as noted by Mr.
Harrell, the extension of the telescoping lift, but, in any case, the capacity
of the machine maxes out at 10,000 pounds.
(Tr. 580, 582).
Complainant introduced the load capacity chart for the excavator, which
takes into account different attachments and the extension of the boom at
various lengths and heights; however, the
chart specifically mentioned on the
forklift was not introduced as evidence, which deprives the Court of the
opportunity to determine what the capacity of the forklift is when taking into
account different variables like the attachments used and extension of the
boom.[19] Further, the failure to introduce the load
chart or operator’s manual for the forklift also deprives the Court of the
ability to ascertain whether this particular machine is designed for overhead
lifting.
Ultimately,
it is unclear that the load capacity of the forklift itself was affected by the
custom attachment. Complainant’s expert
focused almost entirely upon the design of the custom lifting attachment and
the weld that connected the attachment to the boom. Specifically, he testified about the number
of ways in which the weld could fail
and the impact of dynamic, lateral loading which could cause the welded attachment to separate “at any given
time.” (Tr. 374, Compl’t
Br. at 20). The problem, however, is
that these concerns are all directed towards the load capacity of the custom
attachment and weld, not the capacity of the forklift itself.[20] (Tr. 371). As noted above, the operative question in
this case is whether the load capacity of
the forklift has been affected by virtue of the modification or
addition. Merely because the structural
integrity of the custom attachment is in question does not mean that the
capacity of the forklift has been affected.
Complainant’s witnesses opined that the capacity of the forklift could have been affected by the addition
of the custom attachment; however, Complainant was unable to show that it was, in fact, affected.
The
question of capacity, however, does not resolve the issue. The standard also states that modifications
or additions that affect the safe
operation of the vehicle must also be approved by the manufacturer. Complainant’s arguments with respect to the
safe operation of the forklift are speculative at best. Mr. Nelson’s testimony was, for the most
part, couched in hypotheticals about what could
happen if the weld were to break
in a certain way; however, none of those hypotheticals actually addressed
identifiable deficiencies in the welded portion of the custom attachment. This is due to the fact that Mr. Nelson did
not physically examine the attachment or weld, but instead based his opinion on
pictures of the attachment and weld. The
only concrete evidence introduced by Complainant that addressed the safe
operation of the forklift was the video, which showed the crypt swaying as it
was being hauled by the forklift. (Ex. C-12). Mr.
Nelson testified that the swaying motion of the crypt imparted dynamic, lateral
stress on the weld, which, if it failed, could strike employees in the vicinity
of the load, including the operator of the forklift. (Tr. 374, Ex. C-12). Respondent’s expert, Mr. Harrell, on the
other hand, noted that the forklift, although operating on uneven ground while
hauling a dynamic load, was still able to remain stable with all wheels firmly
on the ground. (Tr.
586). Though he could not testify
as to the integrity of the welded attachment, Mr. Harrell also noted that the
design of the rough terrain forklift accounts for uneven terrain and dynamic
loads. (Tr. 586). Specifically, Mr. Harrell pointed to the
front tires and outriggers, which serve to protect the operator from swinging
loads. (Tr. 586–87). Although the Court appreciates Mr. Nelson’s
concerns regarding the potential for a weld to fail, the same concerns could be
expressed with respect to any welded attachment. Though the purpose of the Act is to prevent
the first accident, the Court cannot disregard the fact that this same set-up
has been used thousands of times without incident. Even the accident that precipitated the
inspection at issue was not the product of Respondent’s faulty equipment;
rather, it was the result of a poorly manufactured crypt, which was not an
aspect that Respondent could control.
The Court gives little weight to the testimony of Mr. Nelson on the
issues of capacity or safe operation since his conclusions are either
speculative or based on unexamined or untested assumptions about the integrity
of the weld. This Court cannot permit the Complainant to meet his burden of
proof with conclusions based on speculation.
To do so would undermine the integrity of longstanding case law that
places the burden on him to prove a violation of the Act. Complainant failed to present credible,
objective, factual evidence that established the custom attachment affected the
capacity of the forklift or rendered it unsafe to operate for the reasons
stated above. Accordingly, Citation 1,
Item 5 will be VACATED.
C.
Citation 1, Item 6
Complainant alleged a serious violation of the Act in
Citation 1, Item 6 as follows:
29 C.F.R. 1926.701(b):
All protruding reinforcing steel, onto and/or into which employees could
fall or come against, was not guarded to eliminate the hazard of impalement:
a) Miramar National Cemetery –
On or about 20MAY11, steel reinforcing rods were not capped against impalement.
b) Miramar National Cemetery –
On or about 24MAY11, steel reinforcing rods were not capped against impalement.
The cited standard provides:
Reinforcing steel. All
protruding reinforcing steel, onto and into which employees could fall, shall
be guarded to eliminate the hazard of impalement.
29 C.F.R. § 1926.701(b).
On the first day of CSHO Mollenberndt’s inspection of the worksite, he noticed several
uncapped steel reinforcing rods that had been pounded into the ground to aid in
the alignment of the burial crypts. (Tr. 59). On May 20,
2011, Respondent’s foreman, Tyler Felton, advised CSHO Mollenberndt
that he knew the rods should be capped and that he would ensure that the rods
would be capped in the future. (Tr.
67–68). When CSHO Mollenberndt
arrived at the worksite a couple of days later on May 24, 2011, he observed
that many of the rods remained uncapped.
(Tr. 68).
There were approximately 8–12 rods that stood 1–4 feet out of the
ground, and, depending on the location of the crypts, located adjacent to or
roughly 6 feet away from the crypts. (Tr. 60, Ex. C-4). At
the time of the inspection, CSHO Mollenberndt
observed employees working in close proximity to the uncapped rods, including
some employees that were standing on top of the crypts. (Tr. 61, Ex. C-4).
Respondent contends that the cited
standard is inapplicable and the citation should be vacated. Specifically, Respondent points to the scope
and application paragraph of 29 C.F.R. § 1926.700(a), which states:
This subpart sets forth
requirements to protect all construction employees from the hazards associated
with concrete and masonry construction operations performed in workplaces
covered under 29 CFR Part 1926. In
addition to the requirements in Subpart Q, other relevant provisions in Parts
1910 and 1926 apply to concrete and masonry construction operations.
29 C.F.R. § 1926.700(a).
Respondent admits to using “protruding reinforcing steel”, as that term
is used in § 1926.701(b); however, Respondent argues that the standard does not
apply because Respondent was not engaged in concrete or masonry
operations. Complainant contends that
because Respondent was using reinforced steel rods that protruded from the
ground, the standard applies. Respondent
may not have been performing concrete or masonry operations per se; however, it was utilizing
tools/implements—rebar—associated with that specific industry. See
Kunz Constr. Co., 15 BNA OSHC 1343 (No. 90-2995-S, 1991) (ALJ Schwartz)
(finding a violation of 1926.701(b) when uncapped, reinforcing steel rods were
used to “stake out the drive to the company trailer”). It is undisputed that the reinforcing steel
rods were uncapped and protruding out of the ground. Thus, the standard applies and was
violated.
One of the
hazards associated with the use of uncapped, reinforced steel rods is the
potential for impalement, which was present at Respondent’s worksite. CSHO Mollenberndt
observed an employee working on top of the crypts, approximately 5 feet off of
the ground, near an uncapped steel rod. (Tr. 61, Ex. C-4).
Additionally, other employees of Respondent were exposed to the
impalement hazard when they worked on the ground in close proximity to uncapped
rods. (Tr. 65–67). Accordingly, the Court finds that
Respondent’s employees were exposed to the hazard.
Finally,
Respondent knew or should have known about the presence of the violative
condition. As noted above, Respondent’s
foreman, Mr. Felton, indicated that he was both aware of the requirement and
that he would resolve the problem of the missing caps, which were identified by
CSHO Mollenberndt on the first day of his
inspection. When CSHO Mollenberndt returned a few days later, he observed more
uncapped steel rods. Not only was the
condition open and obvious, but Respondent’s foreman was directly aware of the
uncapped rods and allowed the condition to exist. It is well-settled that the actual or
constructive knowledge of a foreman can be imputed to his employer. Rawson Contractors Inc.,
20 BNA OSHC 1078 (No. 99-0018, 2003); A.P. O'Horo
Co., 14 BNA OSHC 2004 (No. 85-369, 1991). Mr. Felton held himself out as a
representative of Respondent, and, therefore, his knowledge of the uncapped
reinforced steel is properly imputed to Respondent.
The
violation was also serious. Sufficient
testimony was presented by Complainant to establish that falling onto
reinforced steel rods creates an impalement hazard, which could lead to serious
injuries and even death. Based on the
foregoing, the Court finds that Complainant established a violation of the
standard. Accordingly, Citation 1, Item
6 will be AFFIRMED.
VIII.
PENALTY
In
calculating appropriate penalties for affirmed violations, Section 17(j) of the
Act requires the Commission give due consideration to four criteria: (1) the size of the employer’s business, (2) the
gravity of the violation, (3) the good faith of the employer, and (4) the
employer’s prior history of violations. Gravity
is the primary consideration and 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
Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 1993). It is well established that the Commission
and its judges conduct de novo
penalty determinations and have full discretion to assess penalties based on
the facts of each case and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239,
1995); Allied Structural Steel, 2 BNA
OSHC 1457 (No. 1681, 1975).
CSHO Mollenbernt provided credible testimony to support his
characterization of the size of Respondent’s business, the gravity of the
violation, good faith, and prior history of violations. With respect to Citation 1, Item 3, the Court
finds that the gravity associated with using an improperly tested, custom
lifting device is high—if the device is not sufficiently tested and marked, it
is possible for an employee to overload the equipment and expose himself and
other employees to the potential for crushing injuries from the 8,000-plus
pound crypts. Accordingly, the Court
finds that a penalty of $3,000 is appropriate. With respect to Citation 1, Item
6, the Court finds that CSHO Mollenberndt overstated
the gravity of the violation. For the
most part, employees were exposed to the hazard while walking on the ground,
which reduced the likelihood that an employee would trip and fall onto the
protruding rebar. Further, when standing
on top of the crypts, most of the rebar was approximately 6 feet away, which further reduced the likelihood of an impalement injury. In light of these facts, the Court finds that
a penalty of $2,000 is appropriate.
ORDER
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.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that:
1. Citation 1,
Item 1(as originally plead and as an alternative amended citation) and its
associated penalty are hereby VACATED.
2. Citation 1,
Items 2(a) and 2(b) are AFFIRMED as other-than-serious and a penalty of $900 is
ASSESSED.
3. Citation 1,
Item 3 is AFFIRMED and a penalty of $3000 is ASSESSED.
4. Citation 1,
Item 4 is AFFIRMED as other-than-serious and a penalty of $900 is ASSESSED.
5. Citation 1,
Item 5 and its associated penalty are hereby VACATED.
6. Citation 1,
Item 6 is AFFIRMED and a penalty of $2000 is ASSESSED.
Date: April 17, 2013 /s/
Denver, Colorado Patrick
B. Augustine
Judge,
OSHRC
[1] Although California has a state plan approved by the
Occupational Safety and Health Administration, it does not cover “national
memorials.” 29 C.F.R.
§ 1952.7 (explaining California plan coverage).
[2] The general duty clause provides that “[e]ach
employer . . . shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees.” 29 U.S.C.
§ 654(a)(1).
[3] The citation issued to Peacock included five other
items, two of which were settled before the judge (Items 2 and 4) and two of
which were affirmed by the judge but not petitioned for review (Items 3 and 6). Review was sought and granted for the other
remaining item (Item 5); that item has been severed from this case and is
disposed of in a decision also issued today.
[4] The Secretary amended Item 1 to allege, in the
alternative, a violation of the safety training and education standard, 29
C.F.R. § 1926.21(b)(2). The judge, in vacating this item, concluded
that this provision was not violated. On
review, the Secretary has abandoned this alternative allegation.
[5] The judge found that because Peacock’s employees stand
clear of the suspended loads until the loads are 1-2 feet off of the ground, the
employee’s injury “was a product of his failure to follow work rules, not from
the hazard associated with standing near [such] loads.” Following this work rule, however, would not
prevent exposure here because, as noted, the company’s work methods still
require the ground employee to stand near the crypt and maneuver it by hand. Additionally, to the extent the judge was
relying on the relatively short amount of time employees spend near the
suspended loads, this does not negate exposure; indeed, Peacock employees set
approximately 100 crypts per day. See George J. Igel
& Co., 6 BNA OSHC 1642, 1645 (No. 76-1087, 1978) (“Respondent’s
contention that the employee was in the trench for only 10 to 15 seconds at a
time does not constitute a defense to the alleged violation.”); Morgan & Culpepper, Inc. v. OSHRC,
676 F.2d 1065, 1069 (5th Cir. 1982) (“[W]e reject the notion that the existence
of an unsafe condition for only a short duration is defensible for that reason.”).
[6] The judge described the use of tag lines and poles as
“new” methods of abatement that were not identified in the citation. The evidence regarding tag lines and poles,
however, was proffered simply to demonstrate that standing clear of the
suspended load was feasible. Also,
Peacock has not claimed any lack of notice with regard to tag lines and poles,
nor did the company object to the introduction of evidence regarding these devices. See Sw.
Bell Tel. Co., 6 BNA OSHC 2130, 2132 (No. 14761, 1978) (stating that “the
failure of the parties to object to introduction of evidence concerning the unpleaded issue” can “give rise to a finding of implied
consent” to litigate it).
[7]. Citation 1, Item 2 includes sub-items 2a and 2b, which explains the discrepancy between the parties’ Stipulation No. 23 and the Court’s count of the number of alleged violations. On the first day of trial, the parties were able to settle Citation 1, Item 2a, Item 2b, and Item 4. That agreement was read into the record and is discussed below in Section IV.
[8]. This section does not constitute the entirety of the Court’s Findings of Fact. The facts contained in this section apply generally to each of the citations discussed in Section VII, Conclusions of Law. To the extent that additional facts are needed to address a particular citation, such facts will be discussed in Section VII.
[9]. “Angle of loading is the inclination of a leg or branch of a sling measured from the horizontal or vertical plane as shown in Fig. N-184-5; provided that the angle of loading of five degrees or less from the vertical may be considered a vertical angle of loading. 29 C.F.R. § 1910.184(b).
[10]. Respondent’s expert, Robert Harrell, who is a safety and health consultant but conceded he is not a professional engineer, testified that you only have a reduction in capacity “when you incline the two ends of a single sling in towards the center [of the load] and you get them off of vertical.” (Tr. 647). Further, Mr. Harrell stated that if you did not have a spreader bar and hooked the slings directly to the hook on the attachment, such an angle would impact the capacity of the slings. (Tr. 648). The Court fails to see a meaningful distinction—in either case the slings would be oriented at an angle, which, as testified to by Mr. Nelson, impacts the tensile strength of the sling.
[11]. The accident occurred when the sling was under full load. While a latent defect in the crypt cement caused the sling’s anchor point on the corner to crumble, the crypt never crashed to the ground but was held above the ground in a suspended fashion. (Tr. 604).
[12]. By saying this, however, the Court does not find that Respondent has established the defense of unpreventable employee misconduct. In light of the conclusion reached later that the Complainant has not carried his burden to establish a prima facie case of a violation of the General Duty Clause, it is unnecessary for the Court to address that affirmative defense.
[13]. The Court is aware that the primary purpose of the Act is to prevent the first accident; however, as it regards the capacity of the slings to carry their intended load, the repeated use of this particular sling set-up is relevant to the question of whether the sling capacity was adequate. The incident involving [redacted] was the result of a faulty crypt and not the inability of the slings to carry the load.
[14]. It is also worth noting that when [redacted] was injured, the sling slipped from the groove; however, it did not completely disengage and remained suspended by the lifting device. (Tr. 605).
[15]. Mr. Nelson made a passing suggestion that Respondent could use a template, which would obviate the need to manipulate the crypts by hand; however, there was scant discussion of the feasibility of such a measure. See ACME Energy Svcs. dba Big Dog Drilling, 23 BNA OSHC 2121 (No. 08-0088, 2012) (“The Secretary has the burden of ‘demonstrat[ing] both that the [proposed abatement] measures are capable of being put into effect and that they would be effective in materially reducing the incidence of the hazard.’” (quoting Beverly Enters., 19 BNA OSHC 1161 (No. 91-3344, 2000))).
[16]. Since the two alternative theories rest, in large part, on the same set of facts and conclusions, the Court incorporates by reference its findings of fact and conclusions of law from Section VII.A.i.
[17]. Alternatively, the Court also finds that Respondent had constructive knowledge of the condition through its foreman, Tyler Felton. The custom lifting accessories on the forklift and excavator, which were operated by Mr. Felton, were in plain view and were repeatedly used to move crypts throughout the working day. The knowledge of Respondent’s foreman, Mr. Felton, is properly imputed to Respondent. Revoli Const. Co., 19 BNA OSHC 1682 (No. 00-0315, 2001) (holding that actions and knowledge of supervisory personnel are generally imputed to their employers).
[18]. The Court sincerely doubts that a manufacturer of lifting equipment would equip a machine with attachments that reduce the lifting capacity by close to two-thirds of its maximum.
[19]. According to Mr. Harrell, the load chart for the forklift would be located inside the cab of the forklift next to where the operator sits and operates the equipment.
[20]. The load capacity of the custom attachment was already addressed by Complainant in Citation 1, Item 3. It is a much different issue to address the actual lifting capacity or safe operation of the forklift to which the custom accessory was attached. In that regard, it is interesting to note that the forklift was cited for a violation of 29 C.F.R. § 1926.602(c)(1)(ii), and the excavator was not even though both vehicles were equipped with custom attachments that may or may not have affected the capacity or safe operation of the vehicle.