SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

OSHRC DOCKET NO. 05-1376

AUSTIN BRIDGE AND ROAD, L.P., and its successors,

	

 

Respondent.

	

 


APPEARANCES:


              For the Complainant:

Danielle Jaberg, Esq., Carlton Jackson, Esq., U.S. Department of Labor,
Office of the Solicitor, Dallas, Texas


              For the Respondent: 

Steven R. McCown, Esq., Jason R. Dugas, Esq., Littler Mendelson, Dallas,
Texas


Before:            Administrative Law Judge: James H. Barkley


DECISION AND ORDER


            This proceeding arises under the Occupational Safety and
Health Act of 1970 (29 U.S.C. Section 651-678; hereafter called the “Act”).

            At all times relevant to this action, Respondent,Austin
Bridge and Road, L.P. (Austin Bridge) was installing concrete traffic
barriers along I-30 in Dallas, Texas. Austin Bridge admits it is an
employer engaged in a business affecting commerce, and is therefore
subject to the requirements of the Act.

            On February 20, 2005, one Austin Bridge employee was killed
and another injured when the two were crushed between a stationary
flatbed truck trailer and truck mounted crane. Upon learning of the
accident, the Occupational Safety and Health Administration (OSHA)
initiated an investigation of the incident. As a result of that
investigation, OSHA issued a citation to Austin Bridge alleging
violation of §5(a)(1) of the Act. By filing a timely notice of contest
Austin Bridge brought this proceeding before the Occupational Safety and
Health Review Commission (Commission). A hearing was held in Arlington,
Texas on May 10, 2006. During the hearing, the Secretary was granted
leave to amend her complaint (Tr. 9, 175). Briefs have been submitted on
the issues, as amended, and this matter is ready for disposition.

Alleged Violation of §5(a)(1)

Serious Citation 1, item 1 alleges:

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
the Hazard of being crushed between a Link-Belt HTC-860 60-ton crane
carrier and a 45 foot flatbed trailer due to not being warned of the
hazards.


At the State Hwy 12 loop expansion project located at: I-30 and State
Hwy 12 Loop, Dallas, Texas 75063.


On or about February 20, 2005, at least five employees walking and
working near or next to a Link-Belt HTC-860 60-ton Hydraulic Truck Crane
and a 45 foot flatbed combination tractor trailer while erecting a
concrete traffic barrier wall, were not protected from the hazards of
being caught in-between the Crane carrier and the flatbed trailer.


AMONG OTHER METHODS, A RECOGNIZED AND FEASIBLE MEANS OF ABATEMENT TO
CORRECT THIS HAZARD INCLUDES BUT IS NOT LIMITED TO:


1) Designate a storage area outside of the hazard area for the retrieval
of connection bolts, nuts and angle iron by the employees;


/Facts/

            Sammy Vaughn is a crane operator with 25 years of experience
(Tr. 38). During the week prior to February 20, 2005, Vaughn, who was an
employee of Maxim Crane, was working with Austin Bridge, operating a
60-ton Link-Belt 860 truck crane, which Austin Bridge leased from Maxim
(Tr. 38-39). Vaughn was setting 1-1/2 miles of 30-foot concrete traffic
barriers (CTB) along Loop 12 at I-30 for Austin Bridge (Tr. 40, 43, 60,
122-23). Vaughn sat in the crane cab at the rear of the carrier as it
backed along the inside shoulder of the highway behind an 18 wheel
flatbed tractor trailer loaded with the CTBs (Tr. 41-42, 62; Exh. C-1,
C-2, C-3, C-4, C-5, C-6).

            Each time the flatbed trailer moved forward, Jack Kemp,
Austin Bridge’s foreman, backed the crane carrier up to within 18-24
inches of the flatbed trailer’s back end (Tr. 42, 130-31). Because the
same engine powers both the crane carrier and the crane, the motor
continues to run when the carrier is stationary (Tr. 66, 90). After
moving the crane, Kemp shifted the carrier into neutral and engaged the
air brakes before leaving the carrier’s cab (Tr. 66, 71). He then moved
to a one-ton service truck equipped with a light tower, and drove it
along the inside lane of the highway, where it was protected by orange
traffic barrels, until it was alongside the other equipment (Tr. 41-42,
60, 62; Exh. C-1).

            David Alvarado, an Austin Bridge employee, was stationed on
the flatbed trailer (Tr. 133-34). Enrique Lopez, another Austin Bridge
employee, was positioned on the ground to Vaughn’s right (Tr. 43-44, 86,
123, 130; Exh. C-1). Each time the crane carrier stopped and the
air-brakes were engaged, Lopez signaled Vaughn to pick up a CTB with the
crane (Tr. 43-45, 54). Vaughn moved the boom over the load on the
flatbed, and Alvarado attached a CTB to the boom’s clamp (Tr. 43-44).
The weight of the CTB on the boom engaged the outriggers, which remained
extended throughout the entire operations (Tr. 90). Vaughn picked the
CTB from the back of the flatbed and placed it on the road between the
inside lane and the shoulder. While Lopez and the rest of Austin
Bridge’s crew aligned and attached the CTB (Tr. 45, 125), the 18 wheeler
moved forward. Lopez then signaled to Kemp, who had returned to the cab
of the carrier, to back the crane again to within 18-24 inches of the
flatbed’s new position (Tr. 42, 130-31). While the crew was unloading
and positioning the next CTB, Kemp would hop over the traffic barriers,
and move the service truck to the new position (Tr. 42, 44-45).

            In addition to acting as signalman for both Kemp and Vaughn,
Lopez helped align the CTB and retrieved the bolts that were used to tie
the barriers together (Tr. 125). The CTB was placed between two pieces
of angle iron that were attached to the previously installed CTB (Tr.
45; Exh. C-7). Jose Delgado, an Austin Bridge employee, retrieved the
angle iron from the side of the crane where the outriggers were
located(Tr. 47-48). At Kemp’s direction, the nuts and bolts used to
attach the angle iron to the CTBs had been removed from the service
truck and stored on top of a tool box mounted to the back of the crane
(Tr. 46-47, 82, 84, 110, 125; Exh. C-8, C-9, C-10). Lopez retrieved the
nuts and bolts while standing on an iron step mounted to the back of the
crane and passed the bolts to Delgado (Tr. 105, 125; Exh. C-8, C-9).
Lopez and Delgado then slid the bolts through the angle iron and the
CTB. The remaining crew members, Mateo Hernandez and Juan Alvarado,
startednuts on the bolts, and tightened them with an impact wrench (Tr.
45, 86-87, 103, 109-10; Exh. C-1).

            At some point on February 20, 2005, after moving the
carrier, Kemp set the air brakes, which signaled Vaughn to start picking
up a CTB (55-56, 90-91). Kemp, however, had inadvertently left the crane
in reverse instead of neutral (Tr. 71). Lopez was standing on the step
handing bolts to Mateo Hernandez, who was standing on the ground
directly behind him, when the crane lurched backwards (Tr. 55-56, 128,
130). The movement occurred either when Kemp took his foot off the
clutch, or when Vaughn attempted to move the boom, engaging the crane’s
throttle, which was still directing power to the carrier (Tr. 66, 68-71,
91, 151-52, 208). The crane fatally crushed Hernandez against the
flatbed trailer; Lopez sustained injuries to his back and both knees
(Tr. 130).

            Vaughn testified that even when the crane is stationary
there is a “pinchpoint” between the crane carrier and the flatbed (Tr.
63-64, 72). Because of the Link-Belt 860's lifting capacity, the crane
carrier had to be close to the flatbed to safely pick the CTB (Tr. 69).
However, some movement of the crane is natural as the operator lifts a
heavy object (Tr. 72). The flatbed will also move somewhat as the object
is removed (Tr. 72). Therefore, the operator left 18 to 24 inches
between the two pieces of equipment to provide a buffer zone (Tr. 73).
According to Vaughn, there was always a possibility that a person
standing in the close quarters between the crane carrier and the flatbed
could be caught between the two (Tr. 72). For instance, the crane
carrier could roll back when the carrier operator releases the brake
(Tr. 73). Vaughn testified that the “pinchpoint” hazard is “a given” on
any job, and that it is hazardous to be in any pinchpoint, including the
area between the crane and the flatbed trailer (Tr. 63, 76-77, 89).

            Vaughn testified that he warned Jack Kemp and Lopez to keep
employees out of the area between the flatbed and the crane carrier (Tr.
53, 63, 65, 87). According to Vaughn, Hernandez had attempted to use the
area as a pass through and was told to stay out of it (Tr. 53, 76, 79).
During his initial interview, however, Vaughn did not tell OSHA
Compliance Officer Jack Rectorhe warned Austin Bridge employees about
the crushing hazard between the crane and the flatbed trailer (Tr. 75).
Moreover, though Vaughn claimed to have warned Lopez away from the zone
of danger associated with the pinchpoint, he knew Lopez generally stood
on the step at the back of the crane between the crane and the flatbed
to retrieve his bolts (Tr. 65). More specifically, Vaughn saw Lopez
there during the lift which ended in the fatal accident (Tr. 55-56).
Vaughn testified that Lopez, even though standing directly between the
crane and the flatbed on a step at the rear of the crane, did not appear
to be in the zone of danger created by the “pinchpoint” between the
carrier and the flatbed (Tr. 64, 92).

            Upon further questioning, Vaughn changed his testimony,
stating that the only employee he saw during the last pick came up over
the outriggers to get the bolts (Tr. 80, 91). Vaughn claimed he did not
see Hernandez come behind the crane because “he was bent down” (Tr. 93).
Finally he testified that from his position in the crane cab, he could
not tell whether Lopez was standing on the step or on the outrigger at
the side of the crane (Tr. 98). Delgado, atop the flatbed testified that
he saw Hernandez grabbing nuts and bolts between the crane and the
flatbed (Tr. 140-41).

            Alvarado, Delgado and Lopez all testified that they were
told not to get between the crane and the flatbed trailer while the
crane was in motion (Tr. 120, 124, 142). None of them, however, were
told to stay out of the 1-1/2 to 2 foot area between the equipment once
the crane was parked (Tr. 120, 124, 142). Once the crane had stopped
moving Lopez had to access the bolts stored on the crane from the area
between the crane and the flatbed trailer (Tr. 84, 125-27). Lopez always
used the step on the back of the crane to access the bolts. He was never
instructed to climb the outriggers to retrieve them from the side of the
crane (Tr. 85, 88, 126).

            Rector, who is also a certified crane inspector (Tr.
146-49), introduced the operator’s maintenance manual for the Link-Belt
crane (Tr. 154; Exh. R-26). The manual instructs the operator to “Always
look before you back up or better yet, post a signalman to guide you.”
(Exh. R-26, p. 45 of 305). Rector admitted that the manual only
recognizes a potential hazard when the operator is backing the equipment
(Tr. 156). Complainant’s Exhibit C-12, the National Institute of
Occupational Safety and Health (NIOSH) publication, Building Safer
Highway Work Zones: Measures to Prevent Worker Injuries from Vehicles
and Equipment suggests that:

            /Road builders and maintainers can: /

/* * */

/            • / Design the workspace to eliminate or decrease backing
into blind spots. . . .


(Exh. C-12, p. 22). Rector testified the publication demonstrates that
NIOSH recognizes a hazard during backing, and so warns operators not to
back into areas where there is a potential for hitting or crushing
employees working on foot (Tr. 157). Finally, Rector relied on The
Association of Equipment Manufacturers’ safety manual, which states
“Never travel a machine on a job site, in a congested area, or around
people, without a signal person to guide you. . . . Watch for narrow
spots and low clearances. Use a signal person when maneuvering in tight
quarters and/or clearances are close.” (Exh. R-10, p. 2 of 2). Again
Rector testified that the hazard recognized was that of the operator
backing equipment into employees working on the ground (Tr. 158-59).

/Discussion/

            In order to prove a violation of section 5(a)(1) of the Act,
the Secretary must show that: (1) a condition or activity in the
workplace presented a hazard to an employee, (2) the hazard was
recognized, (3) the hazard was likely to cause death or serious physical
harm, and (4) a feasible means existed to eliminate or materially reduce
the hazard. The evidence must show that the employer knew, or with the
exercise of reasonable diligence could have known, of the violative
conditions. /Tampa Shipyards, Inc./, 15 BNA OSHC 1533, 1991-93 CCH OSHD
¶29,617 (Nos. 86-360, 86-469, 1992). A recognized hazard may be a
practice, procedure or condition under the employers' control that is
known to be hazardous either constructively, /i.e/. by the industry in
general, or actually, by the cited employer in particular.  /Pelron
Corporation/, 12 BNA OSHC 1833, 1986 CCH OSHD ¶27,605 (No. 82-388,
1986). /See also/; /Coleco Industries, Inc./, 14 BNA OSHC 1961, 1991 CCH
OSHD ¶29,200 (No. 84-546, 1991) [Advisory (ANSI) standards may establish
industry recognition]. In order to show an abatement measure's
feasibility, the Secretary must show only that such precautions are
recognized by “knowledgeable persons familiar with the industry as
necessary and valuable steps for a sound safety program in the
particular circumstances existing at the employer's worksite.” /Cerro
Metal Products Division, Marmon Group, Inc./12 BNA OSHC 1821, 1986 CCH
OSHD ¶27,579 (No. 78-5159, 1986).

            The questions arising in this case are: 1) whether there is
a recognized crushing hazard between a parked vehicle and an operating
crane after the crane’s carrier has stopped moving and its air brakes
have been engaged; and 2) whether removing the connecting nuts and bolts
for the CTB’s from the storage area on the back of the crane would have
eliminated or materially reduced this hazard.

            On this record it is clear that: 1) While the crane industry
clearly recognizes the hazard of being crushed in the area behind a
backing crane, it does not similarly recognize a crushing hazard between
two parked vehicles; and 2) While, in retrospect, it is clear that this
accident may have been averted had the CTB hardware been stored
elsewhere, the Secretary has not shown that, prior to this accident, a
knowledgeable person familiar with the highway construction industry
would have recommended the storage of hardware somewhere other than on
the back of the Link-Belt crane in order to minimize employee exposure
to the crushing hazard.

            Rectortestified that the danger of being crushed between the
crane carrier and the flatbed was an obvious hazard, and was implicitly
recognized by both this crane’s manufacturer and in the highway
construction industry (Tr. 150-54, 197-98). The evidence, however, does
not support Rector’s conclusion. None of the industry literature
mentions a crushing hazard between parked vehicles. At the hearing,
Rector admitted that Austin Bridge’s safety instructions, warning
employees not to get behind the crane while it was backing up, and its
use of a signalman on the ground to alert employees when the air brakes
were set and they could go back to work, were consistent with both NIOSH
and the manufacturer’s recommended practices (Tr. 178, 185-87). Nothing
in the industry recommendations prohibits storing materials on a crane,
or working between a parked crane and another fixed object (Tr. 189,
192). Further, Rector testified that, in his opinion, it is safe to work
on foot around an operating crane as long as the crane is stopped,
parked, and the outriggers are in place (Tr. 187). Neither he nor Vaughn
had ever heard of a crane lurching backwards as a result of being left
in gear rather than in neutral (Tr. 71, 188).

            As nothing in the literature presented establishes industry
recognition of a crushing hazard associated with a parked crane,
Complainant’s entire case rests upon the operator’s testimony that he
both recognized the hazard and warned Jack Kemp of the hazard. Vaughn’s
hearing testimony constantly shifted, was full of internal
inconsistencies, and can be accorded little weight. During the original
OSHA investigationVaughn failed to tell CO Rector that he warned Kemp
about a crushing hazard between the parked vehicles. Vaughn first
discussed cautioning Kemp a week before the hearing, while discussing
his testimony with Complainant’s counsel (Tr. 75). Nor did Vaughn’s
actions on the worksite conform to his alleged recognition of a hazard.
Vaughn testified the area between the parked crane and the flatbed
formed a recognized “pinchpoint,” and stated he warned Kemp to keep
employees out of the area. Yet he knew Austin’s hardware was stored on
the back of his crane and was accessible only from there. He saw Lopez
climb up on the step at the back of the crane to retrieve hardware every
time the crane stopped. His testimony and the location of his cab make
clear that he watched Lopez each time he entered the “pinchpoint” to
retrieve hardware and was unconcerned about it. Though, later in his
testimony, Vaughn stated that Austin employees may have been coming over
the outriggers to collect their hardware, it is clear that Vaughn knew
Lopez was working in the “pinchpoint” between every lift.

            Clearly Vaughn did not believe that the area between the
parked crane and the flatbed was a “pinchpoint” constituting a
recognized hazard prior to the accident. Moreover, according to Rector,
in the crane industry, “pinchpoint” is a term of art referring to any
area where it is possible to be caught between a moving and stationary
parts of the crane (Tr. 192). The Operator’s & Maintenance Manuel for
the Link-Belt crane states “Pinch points, which result from relative
motion between mechanical parts can cause injury. Keep clear of rotating
upper of moving parts.” (Exh. R-26 p. 50 of 305). Thus, Vaughn’s
testimony that “pinchpoint” hazards are a “given” on any job is
meaningless in this context.

            Complainant has not established industry recognition of the
cited crushing hazard, nor has it established Austin’s actual knowledge
of a hazard. Rector’s testimony that Austin Bridge’s foreman, Jack Kemp,
had actual knowledge of the violation, was based solely on the hearing
testimony of Sammy Vaughn (Tr. 163-182). Prior to the hearing Rector had
no reason to believe that Kemp had actual knowledge of any crushing
hazard (Tr. 182, 184). Kemp did not confirm Vaughn’s story during his
interview with Rector. He was not called to the stand as a witness for
Complainant. None of the employees testifying for Complainant supported
Vaughn’s story, /i.e.,/ that he warned Kemp to keep employees out of the
area between the flatbed and the crane /at all times./ Rather, each
employee testified that they were warned to stay out of the area only
while the crane was backing. Once Lopez gave the all clear signal,
indicating the crane was parked, they believed it was safe to go back to
work around the crane. None were told not to enter the area between the
flatbed and the crane after the air brakes were engaged on the crane.

            In conclusion, on this record, it cannot be concluded that,
prior to this incident, either the industry or the Respondent recognized
a crushing hazard associated with working behind an operating crane that
is parked. That the crane was inadvertently left in reverse was due to
an unforseen operator error, which, to CO Rector’s knowledge had not
occurred before. With the benefit of hindsight, it appears that, by
taking the simple and feasible step of storing the CTB hardware
elsewhere, Footnote <javascript:WPShow('WPFootnote1',%20WPFootnote1%20)>
this accident could have been avoided. However, nothing in this record
suggests that, prior to this accident, safety personnel familiar with
the crane industry would have recognized such a step as necessary for a
sound safety program in the circumstances existing at Austin’s worksite.

            The Secretary failed to make her prima facie case, and this
matter must be dismissed.

                         

ORDER

 

1.         Serious citation 1, item 1, alleging violation of §5(a)(1) of
the Act is VACATED.

 

 

 

 

                                                                                     /s/


                                                                                    James
H. Barkley

                                                                                    Judge,
OSHRC


Dated: August 2, 2006