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

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

Appearances:  Kate O’Scannlain, Solicitor of Labor

    Oscar L. Hampton III, Regional Solicitor

    Brittany M. Williams, Attorney

    U.S. Department of Labor, Office of the Solicitor, Philadelphia, Pennsylvania

    For the Complainant

    Randolph T. Struk, Esquire

    Clark Hill PLC, Pittsburgh, Pennsylvania

    For the Respondent

Before:    Covette Rooney

    Chief Administrative Law Judge

DECISION AND ORDER

  Maxim Crane Works (Respondent) is a crane rental company. On Friday, April 14, 2017, a crane assembly/disassembly director who worked for Respondent fell approximately 9 feet to the ground from the lattice boom of a Manitowoc 14000 crane as it was being disassembled at Respondent’s facility in Ridley Park, Pennsylvania. The worker had no fall protection and was hospitalized, having suffered serious injuries including a concussion as a result of the fall. The Manitowoc 14000 was being disassembled for the purpose of transporting it from Respondent’s facility in Ridley Park to a construction worksite in New Jersey.

The Occupational Safety and Health Administration (OSHA) investigated this matter on Tuesday, April 18, 2017 pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (OSH Act). After its investigation, OSHA signed, dated and mailed to Respondent, on August 8, 2017, a two-item serious citation alleging violations of OSHA’s general industry standards found at 29 C.F.R. Part 1910, and proposing a total penalty of $25,350. Respondent received the citation on October 17, 2017 and filed a notice of contest on November 3, 2017, bringing this matter before the Occupational Safety and Health Review Commission (Commission). A hearing was held in Philadelphia, Pennsylvania on October 23 and 24, 2018. Both parties filed post-hearing briefs and post-hearing reply briefs. As discussed below, the citations and proposed penalties are affirmed.

JURISDICTION AND COVERAGE

The Commission gains jurisdiction to adjudicate an alleged violation of the OSH Act by an employer if the employer is engaged in business affecting commerce within the meaning of section 3(5) of the Act and if the employer timely contests the OSHA Citation. 29 U.S.C. §§ 652(5), 659(c). The record establishes that Respondent, as of the date of the alleged violation, was an employer engaged in business affecting commerce within the meaning of section 3(5) of the Act. 29 U.S.C. § 652(5). See Complaint & Answer at ¶¶ 4; Joint Prehearing Statement at 9-10 ¶ V.

It is also determined that Respondent filed a timely notice of contest. For the purposes of determining jurisdiction, the relevant consideration is the timeliness of Respondent’s notice of contest, not the timeliness of the Secretary’s citation.1 29 U.S.C. 659(c); see also Yelvington Welding Serv., 6 BNA OSHC 2013, 2016 (No. 15958, 1978) (construing 29 U.S.C. § 658(c) [section 9(c) of the OSH Act relating to the 180-day timeline to issue a citation] as a statute of limitations rather than an absolute jurisdictional bar to the issuance of a citation after six months.).

The OSH Act allows 15 working days “from the receipt” of the citation by the employer for the employer to notify the Secretary of its intent to contest the citation. 29 U.S.C. § 659(a) (If an employer fails to file a timely notice of contest, “the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.”). While the citation for this matter was dated and sent by certified mail on August 8, 2017, the record establishes that Respondent did not receive the first mailing of the citation. Instead, Respondent received the citation by a second mailing, via United Parcel Service ground delivery, signed as received on October 17, 2017. Within 15 working days of October 17, Respondent notified the Secretary of its intent to contest the citation on November 3, 2017. Therefore, Respondent’s notice of contest is timely.

Based upon the record, the undersigned concludes that the Commission has jurisdiction over the parties and subject matter in this case, and Respondent is covered under the Act.

STIPULATIONS

The parties stipulated to the following facts:

(“Stipulations”; Joint Prehearing Statement at 9.)

BACKGROUND

Respondent’s core business is to provide lifting services to its customers. (Tr. at 377.) Respondent rents out cranes of all different types and all different sizes, and also provides competent rigging, operational and maintenance personnel for its cranes on Respondent’s customers’ worksites. (Tr. at 378.) Respondent’s customers include “anybody with a good credit reference,” but, according to Respondent’s Safety Director, John Merrill, 70 to 75 percent of Respondent’s customers are in the “construction industry” whereas the other 25 to 30 percent of its customers are from “some other industry.” (Tr. at 378-379.) Respondent serves customers nationwide and employs 2,500 workers. (Tr. at 49; Ex. C-4 at 1.) At Respondent’s “satellite” worksite in Ridley Park, Respondent employs eight workers. (Tr. at 49, 311; Ex. C-4 at 1.)

In its Ridley Park yard, Respondent stores, maintains and uses the cranes that are also eventually rented out to “industrial facilities in the southern part of the region.” (Tr. at 318-319.) Respondent’s Regional Safety Manager, Joseph Shinn, testified that, in between rentals, Respondent uses the cranes in the Ridley Park yard to load and unload tractor trailers, assemble and disassemble other cranes, and move pieces of equipment or crane sections throughout the yard. (Tr. at 320.)

At the time of the incident, Respondent was in the process of disassembling the Manitowoc 14000 crane (Manitowoc) in preparation for its transportation to one of Respondent’s customers, Durr Mechanical, for a steel erection construction site in New Jersey. (Tr. at 406-407.) Respondent enlisted the assistance of another one of its cranes it had at the Ridley Park yard, a Liebherr LR1400 (Liebherr), to aid the disassembly process of the Manitowoc. (Stipulations at ¶ 4.) Disassembly of the Manitowoc at the Ridley Park yard was estimated to take two to three days. (Tr. at 408, 421.) The Manitowoc would then be transported to New Jersey in sections, with state issued transportation permits allowing the large sections to travel. Once at the Durr Mechanical construction site in New Jersey, the Manitowoc would be assembled, on the construction site, for use at that location. Respondent’s employees were scheduled to operate the Manitowoc at the Durr Mechanical location in New Jersey. (Tr. at 407, 413.)

On the day of the incident in Ridley Park, six Respondent employees were directed to disassemble the Manitowoc. (Ex. C-20.) The order to disassemble the crane came from Respondent’s Operations Department, located 40 miles away from the Ridley Park yard. The Operations Director was John Mongon. Mongon directed Ridley Park Branch Manager “DJ” to disassemble the crane, and DJ directed mechanic [redacted] and the crew of five other Respondent workers, including Jacob Stanchock, Dante Puzzangara, Jonathan Labuski, Charles Boone and Harry Duff, to accomplish that task. (Tr. at 224, 244, 282; Ex. C-20.) Respondent management on site at the Ridley Park yard at the time of the incident included Branch Manager “DJ” and Safety Manager Joseph Shinn. DJ and Shinn were in the shop at the Ridley Park yard at the time of the incident, in view of the disassembly process but not participating in the disassembly process. (Tr. at 91, 231, 233, 244, 254-255.) Shinn was part of the management team but did not direct work. (Tr. at 317-318.) Shinn testified that he did not know that the Manitowoc was being disassembled that day; he found out when he got a telephone call notifying him “to come to the yard right as the accident happened.” (Tr. at 318.) Joe Shinn called 911. (Tr. at 268; Ex. C-61.)

Incident

Respondent assigned 6 workers to disassemble the Manitowoc on the day of the incident. [redacted] led the disassembly crew, directing the movements and sequence of events of the crew during the disassembly process. (Tr. at 222-223.) It is undisputed that, while [redacted] directed the disassembly process, all of the workers had “interchangeable” positions and accomplished the task together and [redacted] had no management authority. (Tr. at 222-224, 283.)

The Manitowoc is a large crawler crane. It is designed to work on “uneven ground, muddy ground, an area that needs improvement,” because “the design of the crane is made so that it’s very stable, inherently stable. It also has a lot of traction to be moving around on lousy ground.” (Tr. at 379.) The Manitowoc is so large that it must be disassembled and transported in sections from location to location and the operator’s manual contains many warnings on crushing, falling, collapsing hazards while operating, assembling and disassembling the crane. See Exs. C-36, R-36A (Manitowoc operator manual). Indeed, the Manitowoc requires another crane to assist in its disassembly – in this case, the Liebherr. [redacted] and the other crewmembers were using the Liebherr to disassemble the Manitowoc’s boom on the day of the incident. The record does not contain much information, such as an operator manual, on the Liebherr other than it was used at the Ridley Park yard to hoist sections of the Manitowoc during the disassembly process on the day of the incident.

The following facts are not in dispute: no crew member, including [redacted], wore fall protection while working to disassemble the Manitowoc that day. The Manitowoc’s boom is not equipped with a railing or anything else to prevent a fall. The Manitowoc’s boom was lowered and resting on the ground around the time of the incident. The boom itself consists of several sections – starting with “the head” at the very end of the boom followed by two 40- foot sections, and then, as relevant to this case, 1) a 10-foot section, 2) an 18-foot section, and finally, 3) the heel (the section of the boom that connects to the cab of the crane). (Tr. at 23, 386; Exs. C-20, C-22, R-22A.) Around the time of the incident, Respondent had disconnected the head and the two 40-foot sections from the boom. (Tr. at Ex. C-20.) This case focuses on the last three sections: 1) the 10-foot section, 2) the 18-foot section, and 3) the heel.

All three of these sections were connected to each other by 25-30-pound steel pins – each 2.5 to 3 inches in diameter – and the task at the time of the incident that day was to disconnect the 10-foot section from the 18-foot section (which was still connected to the heel) by removing the steel pins that joined them. (Tr. at 64-65, 182-183, 227-228, 383.) While on the Manitowoc’s boom, before the three sections were disconnected from each other, [redacted] was standing at a height of 9.5 feet above the ground. Additionally, while standing on the Manitowoc’s boom, before the three sections were disconnected from each other, the Manitowoc’s 18-foot section of the boom was rigged to the Liebherr while [redacted] was standing on it. (Tr. at 227, 266, 297; Exs. C-4 at 2, C-20, C-61 at 1.)

The Liebherr was used to hoist the 18-foot section of the Manitowoc boom to aid in the release of the 25-30-pound steel pins, which were to be removed by Puzzangara on the ground below. (Tr. at 64-65, 266-267, 297-298; Exs. C-4 at 2, C-61 at 2.) Respondent concedes that the Liebherr raised and lowered the 18-foot section of the Manitowoc’s boom in the following manner:

26. Any alleged hoisting of a load that serves as the basis for Maxim’s alleged violation of 29 CFR 1910.180(h)(3)(v) was limited to lifting an 18-foot section of the boom of the Manitowoc crane no more than ¼ inch. HT at p. 272, LL 7-20.2

27. Any alleged lowering of a load that serves as the basis for Maxim’s alleged violation of 29 CFR 1910.180(h)(3)(v) was limited to lowering an 18-foot section of the boom of the Manitowoc crane no more than 2-3 inches. HT at p. 273, LL 13-23.

(Resp’t Br. at 6.) After the pins were removed, the 10-foot section failed to disengage from the 18-foot section of the Manitowoc boom. (Tr. at 267, 298; Ex. C-61 at 2.) [redacted] was on the top of the boom at that time, and as he turned to walk toward the heel, the 10-foot section unexpectedly disengaged from the 18-foot section of the boom, causing [redacted] to lose his balance and fall approximately 9.5 feet to the ground below. (Tr. at 52-53, 64, 228-229, 267-268, 298; Exs. C-4 at 2-3, C-61 at 2.) [redacted] suffered multiple lacerations, a fractured scapula, a fractured skill and a concussion. (Tr. at 233; Stipulations at ¶ 8.)

OSHA Investigates and Issues a Citation

On Monday, April 17, 2017, OSHA directed OSHA compliance safety and health officer (CO) Herbert Allen Wilcox3 to investigate this matter, following Respondent’s report to OSHA of [redacted]’s hospitalization. (Tr. at 36, 39, 120-121; Ex. C-2.) CO Wilcox arrived at Respondent’s Ridley Park yard the following day, April 18, to begin the investigation. CO Wilcox’s investigation lasted 3.5 to 4 hours, during which he interviewed management and non-management employees, took photographs and measurements, and obtained copies of Respondent’s incident reports, photographs, safety and health manual, and the Manitowoc’s operator’s manual. (Tr. at 36, 39; Exs. C-3-C6, C-11, C-22-C-23, C-36-38.)

CO Wilcox first spoke with John Mongon, Respondent’s operations manager, and Joe Shinn, Respondent’s safety manager. (Tr. at 40.) CO Wilcox testified that they told him that Respondent requires fall protection above 15 feet and that Respondent has a progressive disciplinary policy for enforcement of its safety rules that includes a verbal warning, written warnings and then termination. (Tr. at 41.) CO Wilcox then walked Respondent’s worksite and took notes. (Tr. at 40-43, 49-52; Ex. C-3 (CO Wilcox’s notes interviewing John Mongon (“JM”) and Joe Shinn (“JS”)), C-4 (CO Wilcox’s field notes).) He interviewed several employees, including Jonathan Labuski, who provided a signed written statement to CO Wilcox. (Tr. at 259-269, 367-369; Ex. C-19.) CO Wilcox testified that the workers told him that they had seen instances of verbal reprimands for safety violations, but that no worker told him that they had heard of written warnings or terminations due to safety warnings. (Tr. at 55.) CO Wilcox also testified that he received no information from Respondent that any worker had been disciplined for “riding” a load. (Tr. at 110-111.)

After his investigation, CO Wilcox developed an OSHA violation worksheet that served as a basis for his recommendation for the OSHA citations at issue here. (Tr. at 71-74; Ex. C-19.) At that point, according to CO Wilcox, his recommendations are reviewed and issued by the OSHA area director. (Tr. at 27.) The Citation in this matter was signed by Jorge Alzata for OSHA Area Director Theresa Downs on August 8, 2017. (Citation at 7, 9.)

OSHA receptionist Pamela Graham testified about what happened to the Citation in this matter after August 8, 2017. (Tr. at 330-367.) Ms. Graham testified that she was assigned the task of mailing out the Citation to Respondent. (Tr. at 333.) Ms. Graham sent the Citation to Respondent via United States Postal Service certified mail on August 8, 2017. (Tr. at 335.) Ms. Graham testified that her diary sheet for this case, and the USPS tracking system4 using the tracking number on the certified mailing receipt, confirmed that she mailed the Citation for this matter on August 8, 2017. (Tr. at 335; Ex. C-45-C-48.)

Ms. Graham testified that the certified mailing was never returned to the OSHA office by the USPS. (Tr. at 350.) She testified that she was alerted to a possible issue with the certified mailing of the Citation by an October monthly report circulated by her managers regarding dates and deadlines for various employers. (Tr. at 343, 352-355.) After checking the certified mailing tracking number on the USPS tracking website on October 16, 2017, Ms. Graham mailed the Citation a second time, using United Parcel Service (UPS) Ground. (Tr. at 344; Ex. C-49-C-51.) Ms. Graham then checked the UPS tracking system, which notified her that this second mailing of the Citation was delivered to Respondent on October 17, 2017. (Tr. at 348.)   

DISCUSSION

The Citation Was Timely

Respondent claims that the Secretary issued the Citation for this matter in an untimely manner, in violation of the OSH Act, and that therefore the Citation should be vacated, and the penalties should be nullified. (Resp’t Br. at 22-24.) The Secretary argues that Respondent misinterprets the OSH Act, that the Secretary indeed issued the Citation in a timely manner, in accordance with the OSH Act, and that Respondent’s argument should therefore be rejected. (Sec’y Reply Br. at 1-4.) The undersigned agrees with the Secretary.

Section 9(c) of the OSH Act states “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). The Commission looks “to § 10(a) [29 U.S.C. § 659(a)] as governing the service of citation, as well as the notification of proposed penalty, where as here both documents were served together.” B. J. Hughes, Inc., 7 BNA OSHC 1471, 1474 n.6 (No. 76-2165, 1979) (holding that where “the citation and notification of proposed penalty were in fact sent together, [they] must stand or fall together insofar as the validity of their service is concerned.”). Section 10(a) of the OSH Act states in pertinent part:

If, after an inspection or investigation, the Secretary issues a citation under section 9(a) of this Act, he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 of this Act and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.

29 U.S.C. § 659(a). The Commission has held that “ordinarily, nonreceipt or refusal to accept mail does not affect the validity of service. 4 C. Wright & A. Miller, Federal Practice and Procedure § 1148 at 590–91 (1969).” George Barry, et al., d/b/a Union Waterproofing, Roofing & Painting Co., 9 BNA OSHC 1264, 1266-1267 (No. 77-2720, 1981); see also Donald K. Nelson Constr., Inc., 3 BNA OSHC 1914, 1915 (No. 4302, 1976) (“Rules governing service are designed to apply generally to all cases in order that an objective determination of the adequacy of service may be made.”).

  The relevant facts for this issue are these: the occurrence of the alleged violation in this matter happened on April 14, 2017. The date of the Area Director’s authorized individual’s signature on the Citation and Notification of Penalty is August 8, 2017, slightly less than four months from the date of the incident. The Citation and Notification of Penalty was mailed by certified mail that same day on August 8, 2017. Respondent did not receive the certified mailing of the Citation and Notification of Penalty. Respondent received the second mailing of the August 8, 2017 signed Citation and Notification of Penalty, sent by UPS Ground, on October 17, 2017, approximately three days after the end of the six-month statute of limitations had run.

  Respondent argues that sections 9(c) and 10(a) impose a duty on the Secretary “to issue and serve” the Citation within six months of the alleged violation. (Resp’t Br. at 24.) Respondent points to the following excerpt from OSHA’s field operations manual (FOM): “ ‘a citation shall not be issued where any alleged violation last occurred six months or more prior to the date on which the citation is actually signed, dated and served by certified mail as provided by § 10(a) of the Act. FOM, CPL 02-00-160, chapter 5, ¶ XI.A.’ ” (Resp’t Br. at 22-23) (emphasis by Respondent). Respondent claims that because it received the Citation more than six months after April 14, 2017, “the Secretary failed to issue and serve the Citation within the statute of limitations period, as required by §§ 9(c) and 10(a) of the OSH Act[.]” (Resp’t Br. at 24) (emphasis in the original).

Here, even following Respondent’s logic, the Secretary issued the Citation and Notification of Penalty in a timely manner. The record amply establishes that OSHA in fact sent the Citation and Notification of Penalty by certified mail on August 8, 2017, well within the six-month statute of limitations.5 The record also establishes that Respondent was in nonreceipt of the August 8, 2017 certified mailing of the Citation and Notification of Penalty. Thus, service of the August 8, 2017, certified mailing of the Citation and Notification of Penalty was still valid, even though Respondent did not receive it. George Barry, et al., d/b/a Union Waterproofing, Roofing & Painting Co., 9 BNA OSHC at 1266-1267. Furthermore, Respondent has not claimed any sort of prejudice in presenting its case by receiving the second mailing of the Citation and Notification of Penalty approximately three days after the end of the six-month timeframe. Gen. Dynamics Corp., Elec. Boat Div., Quonset Point Facility, 15 BNA OSHC 2122, 2125 (No. 87-1195, 1993) (“Under long-established Commission precedent, the employer must establish such prejudice, to warrant vacating the citation for lack of ‘reasonable promptness.’ ”).

To the extent that Respondent is arguing that the OSH Act mandates that the Citation was issued only upon its receipt, the undersigned is not persuaded. The word “receipt” in section 10(a) is separate from the word “issued” and refers to the starting point of the separate 15-day period the employer has to contest the Citation that has been issued:

If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

29 U.S.C. § 659(a) (emphasis added).  Indeed, the Commission has examined the legislative history of the OSH Act and has determined that, regarding the service of the Citation, “the distinction between citations and notices of proposed penalties is deliberate, for Congress explicitly rejected a provision that would have combined proposed penalties with the issuance of a citation.” B. J. Hughes, Inc., 7 BNA OSHC at 1474 n.6 citing Subcommittee on Labor of the Committee on Labor and Public Welfare, United States Senate, Legislative History of the Occupational Safety and Health Act of 1970, 92nd Cong., 1st Sess., p. 1202.6

Accordingly, the undersigned finds that the Citation in this matter was timely.

The Citation Items Are Affirmed

To prove a violation of an OSHA standard, the Secretary must establish 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 employer knew or could have known of the condition with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 691 (D.C. Cir. 1980). A violation is “serious” if a substantial probability of death or serious physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k).

Serious Citation 1, Item 1: Fall Protection

The Secretary claims that Respondent violated 29 C.F.R. § 1910.28(b)(1)(i), which requires:

Except as provided elsewhere in this section, the employer must ensure that each employee on a walking-working surface with an unprotected side or edge that is 4 feet (1.2 m) or more above a lower level is protected from falling by one or more of the following: (A) Guardrail systems; (B) Safety net systems; or (C) Personal fall protection systems, such as personal fall arrest, travel restrain, or position systems.

29 C.F.R. § 1910.28(b)(1)(i). The Secretary alleges that Respondent “did not ensure that each employee on a walking-working surface with an unprotected side or edge that was 4 feet (1.2 m) or more above a lower level was protected from failing by one or more the following: Guardrail systems, safety net systems, or personal fall arrest systems:

(Citation at 6.)

It is undisputed that Respondent’s employee, [redacted], worked from the top of the Manitowoc’s lowered boom, without any sort of fall protection, from a height of 9.5 feet during the disassembly process on the day of the incident. (Stipulations ¶¶ 5-7.) It is also undisputed that Respondent requires fall protection during the disassembly process at the Ridley Park yard beginning at 15 feet. (Tr. at 41, 229-230.) The cited standard requires fall protection at 4 feet. Respondent argues that the cited standard is inapplicable and that the fall protection standard for cranes in construction at 29 C.F.R. § 1926.1423(f), which requires fall protection at 15 feet for assembly/disassembly of cranes in construction work, applies to the cited working conditions instead. (Resp’t Br. at 11-22; Resp’t Reply Br. at 2-8.) The Secretary claims that the cited general industry standard applies to the disassembly of the Manitowoc in the Ridley Park yard on the day of the incident because that activity did not fall within the definition of “construction work,” as has been defined in Commission precedent. (Sec’y Br. at 17-20.)

The General Industry Standards are Applicable

The construction industry standards prescribed in Part 1926 apply to “every employment and place of employment of every employee engaged in construction work.” 29 C.F.R. § 1910.12(a). The term “construction work” as used in section 1910.12(a) “means work for construction, alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1910.12(b).

“Part 1926 applies … to employers who are actually engaged in construction work or who are engaged in operations that are an integral and necessary part of construction work.” Snyder Well Servicing, Inc., 10 BNA OSHC 1371, 1373 (No. 77-1334, 1982). “Activities that could be regarded as construction work should not be so regarded when they are performed solely as part of a nonconstruction operation.” BJ-Hughes, 10 BNA OSHC 1545, 1547 (No. 76-2615, 1982); see also Royal Logging Co., 7 BNA OSHC 1744, 1750 (No. 15169, 1979) (concluding that even though a logging operation involved some roadbuilding, that roadbuilding was “ancillary to and in aid of [the logging company’s] primary nonconstruction function to cut and deliver logs”), aff’d 645 F.2d 822 (9th Cir. 1981). Similarly, the mere use of equipment that is often used in construction work does not transform nonconstruction work to “construction work.” BJ-Hughes, 10 BNA OSHC at 1547 (rejecting Secretary’s argument that Part 1926 applied because the equipment involved was typically used in construction).

  “[A] finding of ‘construction work’ under section 1910.12 requires some nexus to the construction site.” Brock v. Cardinal Indus., Inc., 828 F.2d 373, 379-380 (6th Cir. 1987), abrogated on other grounds by Martin v. OSHRC, 499 U.S. 144 (1991). A nexus, in the worker safety context, is a “direct and tangible connection or relationship” between the work being performed and the worksite. Id. at 379; see generally Integra Health Mgmt., Inc., 27 BNA OSHC 1838, 1844-1846(No. 13-1124, 2019) (Commission discussing “nexus” concept with regard to workplace violence under a §5(a)(1) [29 U.S.C. § 654(a)(1)], the “general duty clause,” analysis). Here, the Secretary argues that there is an insufficient nexus between Respondent’s disassembly work at the Ridley Park yard and the New Jersey construction site. (Sec’y Br. at 17-22.) Respondent argues that there is a “clear, direct and tangible” nexus between the disassembly activities and the construction site in New Jersey. (Resp’t Br. at 11-17.)

The burden is on the Secretary to establish the applicability of the general industry 4-foot fall protection requirement, instead of the less restrictive 15-foot fall protection cranes in construction requirement, in this case. Astra Pharma. Prods., 9 BNA OSHC at 2129. As discussed herein, the record establishes that the Ridley Park crane disassembly work had some form of connection to both the Ridley Park yard and to a New Jersey construction site. Thus, to prove his case, the Secretary must establish that the disassembly work that Respondent was doing at the Ridley Park yard had an insufficient “direct and tangible connection or relationship” with the New Jersey construction site. Based on the evidence in the record, the undersigned concludes that the Secretary has established that the Ridley Park disassembly activities had an insufficient nexus with the New Jersey construction worksite, and therefore the more restrictive 4-foot fall protection requirement under the cited general industry standard applies in this case.

  The Secretary argues that the disassembly activity on the day of the incident took place not at a construction site, but at the Ridley Park yard. (Sec’y Br. at 19.) The Secretary additionally points out that Respondent is not a construction company, rather, it is a crane rental company, and the Ridley Park yard is used for “storage, maintenance, and retail operations to support the rental, leasing and sale” of Respondent’s cranes. (Sec’y Br. at 19.)

Respondent argues that it was disassembling the Manitowoc on the day of the incident so that it could be transported to the New Jersey construction site, for which it was earmarked and leased.7 (Resp’t Br. at 13.) Once at the New Jersey construction site, Respondent’s own employees would reassemble the Manitowoc and operate it on the construction site. (Resp’t Br. at 13.) Respondent argues that without the disassembly of the Manitowoc on the day of the incident, “the crane could not have been transported to, nor could it otherwise have been operated at,” the New Jersey construction site. (Resp’t Br. at 15.) Thus, according to Respondent, the disassembly activities on the day of the incident were “performed directly in relation to and for the sole purpose of the [New Jersey] construction project, and were a necessary and immediate precedent step to [Respondent’s] operation of the crane to erect steel at that construction site.” (Resp’t Reply Br. at 2.)

  Both parties rely on Cleveland Electric Illuminating Co. v. OSHRC, 910 F.2d 1333 (6th Cir. 1990) as support for their arguments.8 The Secretary argues that the “activities and conditions present at the time of the alleged violations” are the focal point for this inquiry. (Sec’y Br. at 19-20.) The Secretary points out that the 6th Circuit held training activities at an electric company substation were not considered “construction work” because “no actual construction or repair was being performed at the Clinton Road training site when the citation was issued.” (Sec’y Br. at 18-20.) The Secretary states that the 6th Circuit found that even if the training “was in the nature of construction work, their activities lack the nexus to a particular construction site required by Cardinal Industries.” (Sec’y Br. at 19-20.)

  Respondent, on the other hand, argues that, unlike the company in Cleveland Electric, Respondent’s Manitowoc was earmarked for a specific construction site in New Jersey. (Resp’t Reply Br. at 4-5.) Thus, according to Respondent, Cleveland Electric supports its argument that the Ridley Park disassembly activities should be considered “construction work” because its Manitowoc was intended solely and specifically for a construction site. (Resp’t Reply Br. at 5); see also Resp’t Br. at 14-15 citing A. A. Will Sand & Gravel Corp., 4 BNA OSHC 1442, 1443 (No. 5139, 1976) (respondent’s delivery of material to a construction site constitutes “construction work” subject to the construction standards where the delivery employee assisted at the site and, thus, the delivery became “an integral part of ... the construction activities.”); United Tel. Co. of the Carolinas, 4 BNA OSHC 1644, 1645 (No. 4210, 1976) (work “incidental to subsequent construction and part of the total work to be performed” is subject to the construction standards).

  The preponderance of the evidence supports the Secretary’s argument that there is an insufficient nexus between the Ridley Park disassembly activities on the day of the incident and the New Jersey construction worksite to render the construction standards applicable. Here, the activity in question occurred at Respondent’s Ridley Park yard, which serves to store, maintain and even use the cranes that are also eventually rented out to “industrial facilities in the southern part of the region.” (Tr. at 318-319.) Contrary to Respondent’s arguments, the evidence regarding other uses of the Manitowoc, as well as the Liebherr, and other aspects of its Ridley Park yard are not “irrelevant” and “of no import” to the inquiry here. (Resp’t Br. at 16; Resp’t Reply Br. at 7-8.) The record establishes that Respondent uses the cranes at its Ridley Park yard for non-construction purposes, including to load and unload tractor trailers, assemble and disassemble other cranes, and move pieces of equipment or crane sections throughout the yard. (Tr. at 320.) While this Manitowoc was earmarked for a construction site, and is also designed to be used on construction sites (according to Safety Director Merrill), CO Wilcox testified that management told him that Respondent also used the Manitowoc as a “display crane” for advertising purposes at the Ridley Park yard. (Tr. at 76, 116, 203-205, 379.)

Additionally, the undersigned questions Respondent’s claims that Respondent’s business is to provide heavy lift services “principally” and “primarily” for customers at construction job sites. (Resp’t Br. at 14; Resp’t Reply Br. at 3.) The undersigned notes, however, that Safety Director Merrill quantified its customers: while 70 to 75 percent of Respondent’s customers are in the “construction industry,” the other 25 to 30 percent of its customers are from “some other industry.” (Tr. at 378-379.) Consequently, up to a third of Respondent’s cranes are not used in the construction industry at all. While assembly and disassembly of cranes can happen at construction worksites, this particular activity happens regularly at this particular worksite for the purpose of transporting the crane to a client in whichever industry they belong as long as the client has a good line of credit. (Tr. at 378); BJ-Hughes, 10 BNA OSHC at 1547 (activities that could be regarded as construction work should not be so regarded when they are performed solely as part of a non-construction operation).

The undersigned is also not persuaded by Respondent’s extensive arguments regarding the applicability of 29 C.F.R. § 1926.14239 based on its own interpretation of the rule and its preambles.10 (Resp’t Br. at 17-22.) Respondent’s Vice President of Safety, Troy Wagner, testified that he relied on the language of 29 C.F.R. § 1926.1423 and the preambles to both the proposed and final rules to develop Respondent’s safety program and specifically, Respondent’s 15-foot fall protection requirement. (Resp’t. Br. at 19-22.) Respondent argues that the preamble to the final rule reveals that placing:

… the § 1926.1423 fall protection rule within the construction industry standards was not intended to limit its applicability solely to construction, but instead was intended to ensure that employers would be able to easily locate, identify and then follow the safest procedures to follow when assembling or disassembling crane booms, where those tasks are to be performed.

(Resp’t Br. at 21-22.)

Respondent argues that the fall protection standards of Part 1910 “not only fail to offer greater protection to workers disassembling crane booms, but on the contrary, is far less safe and makes an accident more likely to occur.” (Resp’t Br. at 18.) Respondent claims that, because a worker must work from the top of the lowered boom, the only fall protection possible would be a personal fall arrest system, which would create “a tripping and entanglement hazard that has the potential to make a fall more likely to occur.” (Resp’t Br. at 20.) Therefore, Respondent declares that:

It is both impractical and inappropriate, and indeed is more dangerous, to require the use of fall protection when employees are performing assembly/disassembly work on a horizontal lattice boom crane when working at a height less than 15 feet above the next lower structural level.

(Resp’t Br. at 20-21.)

Despite its extensive arguments, Respondent’s basis for this idea is fundamentally flawed. Respondent claimed that “the Secretary has not introduced any evidence, nor has the Secretary even attempted to argue, that it would be safer had [Respondent’s] employees [followed the cited general industry fall protection standard].” (Resp’t Br. at 20.) Respondent points to CO Wilcox’s testimony that an employee tying off at his feet on the Manitowoc’s boom would be subject to a tripping and entanglement hazard, making a fall potentially more likely. (Resp’t Br. at 20; Tr. at 197.) CO Wilcox, however, also testified that it is possible to utilize portable anchorage points “that go into the trailer hitch of a pickup truck and it has a swinging boom along the top of it.” (Sec’y Br. at 29-30; Tr. at 195-197.) Respondent did not address this solution at all.11

The undersigned is also persuaded by the Secretary’s argument that Respondent quoted OSHA’s preamble out-of-context and in a misleading manner. (Sec’y Reply Br. at 8-9.) The Secretary maintains that, taken within context, the preamble to 29 C.F.R. § 1926.1423 makes clear that, contrary to Respondent’s assertions, OSHA did intend to limit 29 C.F.R. § 1926.1423 solely to construction. Within context, the portion of the preamble is as follows:

As discussed in the preamble to the proposed rule, the Committee determined that safety would be enhanced by addressing the problem of fall hazards associated with cranes and derricks comprehensively and that putting all such requirements in subpart CC would make it easier for employers to readily determine the applicable fall protection requirements (see 73 FR 59799, Oct. 9, 2008). Accordingly, under the final rule, subpart M [of the construction standards, Part 1926, which concerns fall protection] does not apply to equipment covered by subpart CC except where § 1926.1423 incorporates requirements of subpart M by reference.

Sec’y Reply Br. at 9 citing Cranes and Derricks in Construction, Final Rule, 75 Fed. Reg. 47906, 47999 (Aug. 9, 2010) (to be codified at 29 C.F.R Part 1926); see also Ex. R-38A at 1 (Respondent’s exhibit of applicable portion of preamble). The Secretary also points out that the preamble does not refer to general industry standards in any way, nor has OSHA amended the general industry standards to indicate that they have been superseded by 29 C.F.R. § 1926.1423. (Sec’y Reply Br. at 9.)

Respondent further argues the following:

The process of assembling and disassembling a lattice boom is the same, regardless of whether the boom is assembled/disassembled in [Respondent’s] yard or, alternatively, on a construction site. Given the way that OSHA has interpreted and applied the fall protection standards in this matter, there would have been no violation if [Respondent] employees had been disassembling the crane while the crane was sitting just inside the fence line of a construction jobsite. However, there would be a violation if [Respondent’s] employees performed the very same task in the very same way on a crane sitting across the street from the construction site. This logic leads to absurd and inconsistent results.

(Resp’t Br. at 20-21.) This argument flows from Respondent’s fundamentally flawed predicate that there is no viable fall protection evidence for distances less than 15 feet, which, as noted above, there is such evidence.

  The cited standard applies to Respondent’s disassembly activities at the Ridley Park yard on the day of the incident. There is no dispute that the facts of this case satisfy the remaining elements of a violation of the cited standard. Respondent’s worker [redacted] violated the cited standard by not having fall protection and was exposed to the fall hazard while disassembling the Manitowoc from a height of approximately 9 feet on the day of the incident.

Regarding knowledge, given its 15-foot fall protection rule, Respondent’s management were aware that when they directed [redacted] and the disassembly crew to disassemble the Manitowoc on the day of the incident that the workers were disassembling the Manitowoc from a height greater than 4 feet to as much as 15 feet without any fall protection at all. This awareness is sufficient to establish knowledge of the physical conditions constituting the violation of the cited standard. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (“Employer knowledge is established by a showing of employer awareness of the physical conditions constituting the violation”), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished); Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) (knowledge is imputed to the employer “through its supervisory employee.”). This citation item is therefore affirmed.

As far as characterization, this citation item is properly characterized as serious. 29 U.S.C. § 666(k) (A violation is “serious” if a substantial probability of death or serious physical harm could have resulted from the violative condition). CO Wilcox testified that the hazard of falling, should it occur, was likely to cause death or serious physical harm. (Tr. at 85.) [redacted]’s fall resulted in serious injuries like broken bones and a concussion. This citation item is affirmed as serious.

Serious Citation 1, Item 2: Standing on the Lattice Boom

The Secretary claims that Respondent violated 29 C.F.R. § 1910.180(h)(3)(v), which requires: “No hoisting, lowering, swinging, or traveling shall be done while anyone is on the load or hook.” 29 C.F.R. § 1910.180(h)(3)(v). The Secretary alleges that, on the day of the incident, Respondent’s “employee was standing on a section of the lattice boom while it was being hoisted and lowered, exposing the employee to caught-between, struck-by, and fall hazards.” (Citation at 7.)

Respondent argues that the record does not establish that any worker “was standing or otherwise was located on a section of the boom when that section was being hoisted up or lowered down.” (Resp’t Br. at 7.) Respondent further argues, “even should the Court conclude there is sufficient evidence to find [redacted] was on the 18-foot boom section when it was either lifted or lowered, which [Respondent] denies, the section would have been lifted no more than ¼ inch and lowered no more than 2 or 3 inches.” (Resp’t Br. at 10.) Thus, according to Respondent, “such de minimus movement” should not be a basis of a violation of the cited standard. (Resp’t Br. at 10.)

The Secretary argues that Respondent’s policies “clearly prohibit its employees from ‘riding the load,’ e.g., standing on pieces of equipment or crane components as they are hoisted or lowered by a crane.” (Sec’y Br. at 11 citing Exs. C-37 at 7, 9, 13 (“No one is permitted to ride the hook or load,”) and C-38 at 42 (“Under no circumstances may anyone ride the hook or load.”).) The cited standard, however, conveys a stricter sense of forbidden conduct. To the extent that the term “riding the load” has a distance or time element in it, the cited standard is more restrictive – it forbids any person’s presence for any amount of time or distance on a load while it is being hoisted or lowered. 29 C.F.R. § 1910.180(h)(3)(v).

[redacted] understands the difference between “riding the load” and the complete prohibition of being on a load while it is hoisted or lowered. The following testimony is illustrative:

Q But you did testify earlier that you've never seen a Maxim employee be disciplined for riding a load during assembly or disassembly?

A What do you mean riding a load, like coming off the ground and putting it on a trailer or just like coming up an inch and coming down?

Q Even just coming an inch and putting it down.

A No.

(Tr. at 240-241.) In this instance, [redacted] shows that he has never seen any discipline for either scenario, “riding a load, like coming off the ground and putting it on a trailer,” or standing on a load “just coming an inch and putting it down.” (Tr. at 240-241.) Yet, this testimony also illustrates that he sees a distinction, and Respondent in fact makes this argument – that a “de minimus” movement should not be a basis for a violation here. (Resp’t Br. at 10.)

The undersigned rejects this argument as it contradicts the language of the cited standard. No amount of movement is allowed under the cited standard when someone is on the load. Additionally, it is irrelevant, with respect to establishing noncompliance, whether even a de minimus lifting or lowering of the boom actually caused [redacted]’s fall. (Resp’t Br. at 10); see Am. Wrecking Corp., 19 BNA OSHC 1703, 1707 n.4 (No. 96-1330, 2001) (consolidated) (“Determining whether the standard was violated is not dependent on the cause of an accident.”), aff'd in relevant part, 351 F.3d 1254 (D.C. Cir. 2003). The facts that are relevant are those that establish whether [redacted] was on the boom when the Liebherr hoisted it.

  With this in mind, the undersigned finds that the Secretary has shown by the preponderance of the evidence that [redacted] was on the Liebherr’s load (the Manitowoc boom) while the boom was being hoisted on the day of the incident. It is undisputed that [redacted] was on the load during portions of the disassembly process. (Stipulations at ¶ 5); see also Tr. at 64-65, 227-228, 267, 298; Exs. C-20, C-61.

Respondent argues that the evidence in the record does not pinpoint exactly that [redacted] was on the load as it was hoisted or lowered. Respondent argues the following: [redacted] testified that he could not remember being on the load is it was being hoisted or lowered; [redacted] could not recall anyone ever being on a load at the Ridley Park yard as it was being hoisted or lowered; Puzzangara testified that [redacted] was “on the other piece,” “still connected to the crane,” and not on the 18-foot boom section that was actually rigged to the Liebherr that was hoisting or lowering the boom section; Puzzangara also testified that he had never seen any Maxim employee standing on a load while it was being hosted or lowered; Labuski testified that the Liebherr operator simply removed slack from the rigging, and did not actually hoist anything when [redacted] signaled the Liebherr operator to hoist the section; and Labuski clarified at trial that, despite what was written in his statement to CO Wilcox during the OSHA investigation, he was “pretty sure [he] meant to write that [[redacted]] was not on top of the boom” when the instruction was given. (Resp’t Br. at 7-9.) Respondent further argues that a lack of disciplinary action for “riding a load” is not a basis on which to find the fact that [redacted] was on the load as it was being hoisted or lowered. (Resp’t Reply Br. at 9-10.)

The facts are these: [redacted] was on the 18-foot boom section, the Liebherr’s load, before the pins were removed. [redacted] and the disassembly crew rigged the Liebherr to the 18-foot section of the Manitowoc boom in order to remove the pins. [redacted] climbed on top of the 18-foot section and rigged it himself. (Tr. at 227.) The Liebherr had to hoist the 18-foot boom section a slight amount so that the workers could remove the pins by hand. (Ex. C-20.) The pins were removed after the Liebherr “hoists up.” (Tr. at 267-268.) [redacted] then instructs the Liebherr to “hoist down,” but the 10-foot boom section did not immediately release from the 18-foot boom section. (Tr. at 267.) The 18-foot boom section was still rigged to the Liebherr at that time. [redacted] was still on top of the Manitowoc boom at that time. (Tr. at 266-268.) No one testified or stated that they ever saw [redacted] get off the 18-foot boom section at any time. (Sec’y Reply Br. at 5-6.) Rather, the evidence establishes that he was in the process of walking on the 18-foot boom section to the heel to get down from the boom when the sections suddenly separated. See Tr. 298 (Puzzangara affirming his prior statement to CO Wilcox that “Bryan was on top as they were lowering it down. He started to come down and the section broke loose as soon as he turned around. And Bryan fell off.”); Exs. C-20 (“[redacted] proceeded to walk towards the cab to climb off the boom. While walking towards the cab, the 10’ section broke free causing the 18’ section to suddenly drop 6 inches. The sudden drop caused [redacted] to lose his footing and fall off the 8 [sic] foot high boom section to the ground.”); C-61 at 2 (“Bryan signals operator to hoist down slow and nothing is happening. Bryan decides to get down from top of boom and as he turns around to start walking back towards the 14000 . . . [the boom] fell about 6” throwing Bryan off boom section.”).12

The fact that when the boom sections separated, it was sudden and unexpected to [redacted], who was still on top of the boom, also supports the Secretary’s recitation of the evidence. The preponderance of the evidence therefore supports the Secretary’s argument that [redacted] did not come down from the 18-foot boom section before or during the Liebherr’s act of hoisting the 18-foot boom section so that the pins could be removed. The Secretary has established noncompliance with the cited standard.

Regarding knowledge, the undersigned finds that the Secretary has established that Respondent had constructive knowledge of this violative condition. See Par Elec. Contractors, Inc., 20 BNA OSHC 1624, 1627 (No. 99-1520, 2004 (factors considered for constructive knowledge include adequate work rules and training programs, adequate supervision, adequate anticipation of hazards, and adequate prevention measures); Pa. Power & Light Co. v. OSHRC, 737 F.2d 350, 357–58 (3d Cir. 1984) (“The courts of appeals have consistently held that the adequacy of a company's safety program, broadly construed, is the key to determining whether an OSHA violation was reasonably foreseeable and preventable.”).

The record establishes that Respondent’s management knew that Respondent’s crew was disassembling the Manitowoc on the day of the incident - management directed [redacted] and the disassembly crew to disassemble the Manitowoc and management was on-site at the Ridley Park yard, within viewing distance of the disassembly process. (Tr. at 91, 232-233, 245, 254-255, 309; Ex. C-61 at 2); see Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d, 26 F.3d 573 (5th Cir. 1994) (“The knowledge element of a violation does not require a showing that the employer was actually aware that it was in violation of an OSHA standard; rather it is established if the record shows that the employer knew or should have known of the conditions constituting a violation”); Schuler-Haas Elec. Co., 21 BNA OSHC 1489, 1493-94 (No. 03-0322, 2006) (finding that employer had constructive knowledge because it could have known of the physical conditions constituting the violation); Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-692, 1992) (finding constructive knowledge when a supervisor could have discovered and eliminated the hazard with reasonable diligence).

Respondent’s pertinent disassembly safety rule, however, was not equivalent to the cited standard. Gary Concrete Prods., Inc., 15 BNA OSHC 1051, 1054-55 (No. 86-1087, 1991) (finding inadequate work rules and a lack of specific training or instructions on stacking techniques supported a finding of constructive knowledge). Although Respondent has a rule forbidding “riding the load,” the record establishes that this rule is insufficient. As noted above, [redacted]’s testimony suggests that Respondent’s rule is not as strict as what the OSHA regulation requires – that there is a difference between “riding the load” and being on the load “just like coming up an inch and coming down.” (Tr. at 240-241.) The cited standard prohibits any presence on the load even “just like coming up an inch and coming down.” The record also contains evidence, including testimony from [redacted], stating that they have never been disciplined or seen any discipline even for the less stringent rule for “riding” a load, suggesting that Respondent did not take adequate steps to discover safety violations, or that it had effectively enforced its work rules when violations were discovered. (Tr. at 110-111, 237, 302, 308-309); see Gary Concrete Prods., Inc., 15 BNA OSHC at 1056 (ineffective enforcement of safety rules when management was aware of safety-deficient nature of job performance but directed performance of a job anyway).

The awareness by management of the disassembly process on the day of the incident, and the insufficient work rule combined with lack of disciplinary enforcement of a less strict rule prohibiting riding a load, convinces the undersigned that Respondent had constructive knowledge of the violative condition on the day of the incident. See S.J. Louis Constr., 25 BNA OSHC 1892, 1900 n.24 (No. 12-1045, 2016) (evaluating employer’s safety program for adequacy involves same factors for evaluating constructive knowledge and the defense of unpreventable employee misconduct (UEM)); see also Daniel Int’l Corp., 9 BNA OSHC 2027, 2031 (No. 76-181, 1981) (rejecting UEM defense based on employees’ failure to tie-off where construction fall protection standard required openings to be protected by guardrails or covers, stating that the employer’s tie-off rule “is not equivalent to the cited standard”); Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1075 (No. 09-1072, 2013) (employer’s monitoring and enforcement of work rule that did not meet cited provision’s requirements could not be used to establish UEM defense).

The Secretary has also established that Respondent’s employee, [redacted], was exposed to the violative condition when the Liebherr hoisted and lowered the Manitowoc boom while he was on it. As found above, the general industry standards are applicable under the facts of this case, where a Liebherr was hoisting and lowering a load at the Ridley Park yard. This citation item is affirmed.

This citation item is also properly characterized as serious. 29 U.S.C. § 666(k) (A violation is “serious” if a substantial probability of death or serious physical harm could have resulted from the violative condition). CO Wilcox testified that the hazard of falling, should it occur, was likely to cause death or serious physical harm. (Tr. at 108-109.) [redacted]’s fall resulted in broken bones and a concussion. This citation item is affirmed as serious.

PENALTY

Section 17(j) of the Act requires the Commission to give due consideration to four criteria in assessing penalties: the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its prior history of violations. Compass Envtl., Inc., 23 BNA OSHC 1132, 1137 (No. 06-1036, 2010) aff’d, 663 F.3d 1164 (10th Cir. 2011). The gravity of the violation is generally accorded greater weight. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

CO Wilcox testified to how the penalty for each citation item was calculated and proposed for this matter. (Tr. at 87-89, 108-110.) CO Wilcox also testified that OSHA considered this violations here to have a high gravity based on the high severity of the injury (like death, head trauma, brain injuries, broken bones and paralysis) as a result of a fall at nine feet combined with a greater probability of its occurrence on this worksite given that Respondent’s workers were standing on a 4 inch wide walking surface exposed to a fall of 9 feet the entire time they were on the walking surface. (Tr. at 84-87.)

As for history, CO Wilcox testified that Respondent had two previous inspections with the past five years that resulted in serious violation citations that became a final order before the inspection in this case. (Tr. at 88, 109.) As a result, the penalty calculation was increased by 10%, however, the high gravity of the violation already established the maximum statutory penalty for each citation item, and so the penalty was not adjusted for history. (Tr. at 89, 109.) The other factors, size and good faith, were considered, but were found to not apply to Respondent. (Tr. at 87-88, 109.)

Both of the serious violations were high gravity based on the potential for death or serious physical harm, and because there was an injury, in this case, broken bones and a concussion. (Tr. at 89, 109, 233.) Therefore, serious Citation 1, Item 1 was proposed at a $12,675 penalty, and serious Citation 1, Item 2 was proposed at a $12,675 penalty. Respondent has not addressed the calculation of the amount of the proposed penalties in its briefs. After consideration of the statutory factors with regard to the penalties for the affirmed violations, the undersigned agrees with the penalty amounts proposed by the Secretary for each citation item. The proposed penalty amounts are assessed for each affirmed citation item.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

SO ORDERED.

                /s/_________________

                COVETTE ROONEY

                Chief Judge, OSHRC

DATE: January 14, 2020

  Washington, D.C.    

1 The timeliness of the citation was a subject of Respondent’s August 15, 2018 motion for summary judgment, which was denied on September 10, 2018 and then denied reconsideration on September 21, 2018. See Respondent Maxim Crane Works LP’s Motion for Summary Judgment (Aug. 15, 2018); Respondent Maxim Crane Works LP’s Memorandum of Law in Support of Motion for Summary Judgment (Aug. 15, 2018); Secretary’s Response in Opposition to Respondent’s Motion for Summary Judgment (Aug. 30, 2018); Order Denying Respondent’s Motion for Summary Judgment (Sept. 10, 2018); Respondent Maxim Crane Works LP’S Sur-Reply to the Secretary’s Response in Opposition to Respondent’s Motion for Summary Judgment (Sept. 10, 2018); Secretary’s Response in Opposition to Respondent’s Motion for Reconsideration (Sept. 18, 2018); Order Denying Respondent’s Motion for Reconsideration (Sept. 21, 2018). After a hearing with testimony regarding this matter, this issue is adjudicated herein.

2 The reference to “HT” is a direct quote from Respondent’s brief and refers to the “Hearing Transcript.”

3 CO Wilcox has performed 63 inspections over the course of the two years he has been a compliance safety and health officer at OSHA. (Tr. at 28.) Prior to joining OSHA, CO Wilcox spent approximately 18 years in the health and safety industry, working as a consultant for a health and safety and environmental consulting firm, and performing as a safety director at a manufacturing and sawmill facility. (Tr. at 28-29.) CO Wilcox has an associate’s degree in bioenvironmental engineering and an associate’s degree in allied health sciences. He is in his final semester of a bachelor’s degree in environmental science with a concentration in safety and health. (Tr. at 29.)

4 Ms. Graham tracked and printed out the tracking results from the USPS tracking website of the certified mailing of the Citation package using its designated USPS certified mailing tracking number on October 16, 2017 and October 31, 2017. (Tr. at 336-343; Exs. C-47-C-48.) The October 16 printout does not show events earlier than September 11, 2017 as it appears that the events field is not expanded any earlier than that date on the printout. (Ex. C-47 at 1.) Respondent did not object to the admission of the October 16 printout at the hearing. (Tr. at 337.) The October 31 printout, however, does show earlier events, starting on August 9, 2017. (Ex. C-48 at 3.) Respondent raised a hearsay objection to the admission of the October 31 printout at the hearing. (Tr. at 338-342.)

Respondent argued that “there’s been an implication in some pleadings that have been filed in this case that we somehow refused to take [the delivery of the citation] or not.” (Tr. at 341.) Over Respondent’s hearsay objection, the October 31 was admitted under Federal Rule of Evidence 807 “Residual Exception” as the information within the October 31 printout comes directly from the USPS tracking website and because it is more probative than any other evidence that can be obtained through reasonable efforts (such as tracking down the “specific USPS employee who attempted to deliver the certified mailing”). (Tr. at 341-342.) The undersigned notes that the October 31 printout indicates that on August 28, 2017, the certified mailing was marked as “Unclaimed/Being Returned to Sender.” (Ex. C-48 at 2.) While noteworthy, this information is not necessary and is not used by the undersigned to conclude that OSHA timely issued the citation in this matter, as discussed herein.

5 Both parties discussed Earth Developers, Inc., 27 BNA OSHC 1030 (No. 17-1120, 2017) (ALJ), a case where the citation was deemed untimely because the record established that it was mailed after the statute of limitations had run. (Resp’t Br. at 23-24; Sec’y Reply Br. at 3.) The undersigned agrees with the Secretary that this case is non-precedential and distinguishable. Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976) (holding that unreviewed administrative law judge decision does not constitute binding precedent for the Commission). Here, unlike the facts in Earth Developers, the record amply establishes that the Secretary sent the Citation and Notification of Penalty by certified mail within the statute of limitations timeframe.

6 The undersigned also finds that the Secretary’s arguments regarding his interpretation of the word “issue” to be reasonable. The Secretary argues that he has “consistently and reasonably interpreted ‘issuance’ as used in § 9(c) to mean ‘to sign and send by certified mail[,]’ and that he has “consistently advanced this interpretation in Commission litigation.” (Sec’y Reply Br. at 1-3.) The Secretary further points out that OSHA’s FOM’s use of “served by certified mail” means “sent by certified mail,” and so “the FOM is perfectly consistent with the formal interpretation set forth in the Secretary’s litigation papers.” (Sec’y Reply Br. at 4.)

7 The Manitowoc is too large to be transported fully assembled to New Jersey from the Ridley Park yard. (Resp’t Br. at 13.)

8 Both parties also cite to multiple ALJ decisions regarding this issue including All Florida Tree & Landscape, Inc., 25 BNA OSHC 1310, 1349 (No. 13-0373, 2015) (ALJ); Delta Elevator Serv. Corp., 24 BNA OSHC 1968 (No. 12-1446, 2013) (ALJ); Murphy Enterprises, Inc., d/b/a Murphy Bros. Exposition, 17 BNA OSHC 1477 (No. 93-2957, 1995) (ALJ); Cornell & Co., Inc., 15 BNA OSHC 1726 (No. 91-990, 1992) (ALJ); Kullman Industries, Inc., 14 BNA OSHC 1282 (No. 88-109, 1989) (ALJ). As noted above, unreviewed administrative law judge opinions do not constitute binding precedent within the Commission. Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976).

9 That section states:

For assembly/disassembly work, the employer must provide and ensure the use of fall protection equipment for employees who are on a walking/working surface with an unprotected side or edge more than 15 feet above a lower level, except when the employee is at or near draw-works (when the equipment is running), in the cab, or on the deck.

29 C.F.R. § 1926.1423(f).

10 The Secretary treats these arguments as the affirmative defenses of infeasibility and greater hazard in his brief. (Sec’y Br. at 27-30.) The undersigned treats these arguments through the lens of applicability, placing the burden on the Secretary, as that is how the arguments are presented in Respondent’s brief. (Resp’t Br. at 17-22.)

11 The undersigned also notes that Respondent does not incorporate its own expert’s testimony into this argument in its briefs at all. See Tr. at 469-533 (testimony of Anthony Lusi). The expert testified under the limited basis regarding assembly and disassembly of crane booms involved in the incident. The expert, however, did not talk to any of the employees involved in this matter nor did he see the Manitowoc involved in this matter. (Tr. at 485.) The expert’s testimony is therefore of no use here.

12 Respondent’s critiques of the nuances of each witness’s testimony is unpersuasive. The undersigned finds that CO Wilcox’s testimony and the statements given to him on the day of the investigation are credible due to fresher memories closer in time to the incident. The undersigned further finds that, based on observations of their demeanor on the stand at the hearing, Respondent’s workers appeared coached and they testified with hesitation. To the extent any testimony at the hearing diverges substantively from the statements given to CO Wilcox during his investigation, the undersigned accords greater weight to the more contemporaneous statements given to CO Wilcox during the investigation.