“SECRETARY OF LABOR,Complainant,v.AMOCO TEXAS REFINING COMPANY,Respondent,OIL, CHEMICAL AND ATOMIC WORKERSINTERNATIONAL UNION AND ITSLOCAL 4-449,AuthorizedEmployeeRepresentative.OSHRC Docket No. 79-5292_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:This case is before the Commission for review under section 12(j), 29U.S.C. ? 661(i), of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”). Administrative Law Judge Louis LaVecchiafound that Respondent, Amoco Texas Refining Company (\”Amoco\”), violatedthe general duty clause, section 5(a)(1) of the Act,[[1\/]] by allowingan employee to hoist personnel with a long boom crane when the employeewas not sufficiently trained in the machine’s operation. We reverseJudge LaVecchia’s decision and vacate the citation.IOn August 23, 1979 an OSHA compliance officer conducted an inspection ofAmoco’s workplace pursuant to an employee complaint. The employee’scomplaint stemmed from an incident in which several Amoco employees werejostled while riding in the personnel basket of a long boom crane.An explosion occurred at the Amoco workplace several weeks before theincident. Because access to certain high points of the plant had beendestroyed, Amoco rented a Link-Belt model LS-718 long boom crane to liftmaintenance employees to those areas. The 718 is a larger long boomcrane than the LS-518 cranes which Amoco already had at its workplace.On August 1, William McCune was asked to operate the 718 crane. McCunewas qualified to operate the 518 crane but had never performed a jobwith the 718 crane. Before he used the crane, McCune reviewed the 718crane’s controls and safety features and looked at portions of theoperator’s manual. McCune testified that he did not review the entireoperator’s manual too closely because the manual dealt primarily withcrane maintenance.Before he made a lift, McCune \”went through the motions\” with the craneas the foreman, William Nicolini, looked on. After this exercise,Nicolini went up in the personnel basket with two other employees for atest run. The test run went smoothly. Nicolini testified that, in hisopinion, McCune was able to operate the crane safely. McCune alsotestified that after acquainting himself with the crane and making thetest run he felt confident that he could handle the machine. [[2\/]]McCune successfully used the crane to lift a personnel basket containingthree maintenance employees to their work area and to return them to theground. McCune then went to eat, and Bill Lloyd took a second crew upin the basket. While this crew was working, McCune came back andreplaced Lloyd.When the crew wanted to come down, they got into the basket and attachedtheir safety harnesses. McCune swung the basket away from the buildingbut, when McCune tried to lower the basket, the basket would not comedown. Lloyd had left a pawl engaged but had not told McCune. The pawlis a safety device which, when engaged, allows the basket to be raisedbut not lowered. In order to release the pawl, McCune raised the basketseveral times and after doing so was prepared to bring the crew down. The crew members testified that the basket was jostled several feet onthree to five occasions. Believing that it would be dangerous to remainin the basket while McCune operated the crane, they signaled to bebrought back over to the building and descended to the ground levelusing a stairway that had been badly damaged in the explosion.Based principally on this incident, the Secretary issued a section5(a)(1) citation which alleged:The crane operator was not trained or familiar with the crane operatingcontrols or operating manual while hoisting personnel.(a) On or about August 1, 1979, the Link Belt Crane, model LS-718 wasoperated by an employee who was not familiar with the operating manualas specified by the manufacturer. The above existed in the area of No.3 Cat Cracker.Judge LaVecchia found a section 5(a)(1) violation. He reasoned thatduring the incident the workmen in the basket were exposed to possibleserious harm or death from being thrown out of the personnel basket. Judge LaVecchia also concluded that McCune’s training on the 718 crane\”was too short and haphazard to be considered adequate.\”IIThe Secretary alleges, and the judge found, that McCune was notadequately trained to operate the LS-718 crane safely [[3\/]] Amoco doesnot dispute that a failure to properly train a crane operator beforepermitting him to hoist personnel would violate section 5(a)(1), butcontends that McCune was adequately trained.There is no doubt that McCune was qualified to operate the 518 crane. At Amoco, heavy equipment operators are trained on progressively moredifficult and sophisticated equipment. An employee starts by driving atruck and moves through several other pieces of heavy equipment until heis qualified to handle a long boom crane. Amoco’s program alsocombines classroom work with on-the-job training. McCune masteredvarious pieces of heavy equipment and several months before the incidentbecame qualified to operate the 518 crane.The theory of the Secretary’s case is that McCune was not qualified tooperate a 718 crane even though he may have been qualified to operate a518 crane. However, testimony of several witnesses familiar with longboom cranes indicates that the operation of various long boom cranes issimilar and that a qualified crane operator can familiarize himself witha new crane in about a half hour. McCune testified that the 718 cranewas \”very similar\” to the 518 crane. Francis Zeringue, who trains andqualifies employees to operate cranes and who has had many yearsexperience with long boom cranes, testified:Q. As of February, 1979, was he qualified to operate any crane that youhad at the plant?A. Yes, sir. As of that date, Mr. McCune was ready to operate anyheavy equipment that I had.Q. Okay. Was McCune qualified to operate the rented crane?A. Yes, sir, he was.Q. And why do you say this?A. Because. Basically, this crane, this 718, is identical to manyother cranes whether it be another Link-Belt, a Manitowoc, an American. Basically, all the cranes are alike.You can — If a man has qualified as a heavy equipment, he can operateall the cranes that have been put in front of him.Q. Do you have other equipment operators at the plant who may havenever seen the Link-Belt 718, but nevertheless could operate it after abreak-in period?A. Yes.Q. And, how long a break-in period do you think that they would need?A. For a real heavy equipment operator that had been okayed?He could familiarize himself to operate it in about, maybe, 30 minutes.Q. 30 minutes?A. Yes.Mr. W.E. Nelson, the Amoco supervisor who devised the company’s machineoperators’ training program said that long boom cranes are \”all prettymuch identical\” and testified:Q. How long should it take a qualified crane operator, long boom craneoperator, to familiarize himself with a new long boom crane, a new pieceof equipment, so that he could operate it safely?A. Well, depending on the individual to some degree. But five, say 10minutes to half an hour.The Secretary presented the testimony of several workers who believedMcCune was not qualified to operate the 718, including the employees whowere in the basket when it was jostled. While these employees’ concernfor their own safety is understandable, they did not have any experiencein operating long boom cranes and were unable to testify as to theamount of training necessary for a person to become qualified to operatea 718 crane. Moreover, the Secretary presented no probative evidenceconcerning the amount of training necessary for a qualified 518 operatorto handle a 718 crane safely.Essentially, the only evidence that tends to suggest McCune was notqualified to operate the 718 is the fact that he experienced somedifficulty in handling the crane during the incident that led to thecitation. However, in light of the total record evidence, that incidentalone is insufficient to demonstrate that McCune was unqualified asalleged. Whether the record establishes that McCune was not qualifiedto operate the 718 crane must be determined by evidence relating to histraining and experience and the degree of training necessary to becomequalified for operation of the equipment involved. The record fails tosustain the Secretary’s theory. Accordingly, the Secretary has notproven that Amoco failed to render its workplace free from a recognizedhazard that is causing or likely to cause death or serious physical harm.Accordingly, Judge LaVecchia’s finding of a section 5(a)(1) violation isreversed and the citation is vacated. SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAR 25 1983CLEARY, Commissioner, dissenting:I would affirm Judge LaVecchia’s decision. I disagree with theCommission’s finding that the brief training period provided to craneoperator McCune was sufficient to enable him to operate the 718 cranesafely.This Commission has long held that an inadequate training program can bethe basis of a section 5(a)(1) violation. Stepan Chemical Co., 77OSAHRC 74\/E6, 5 BNA OSHC 1367, 1977-78 CCH OSHD ? 21,784 (No. 5562,1977). An employer must take all feasible steps to protect itsemployees from recognized dangers that are causing or are likely tocause death or serious physical injury. National Realty & ConstructionCo. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973). Such steps include,where necessary, the employer’s provision of an adequate safety andtraining program. Id.; General Dynamics Corp., Quincy ShipbuildingDivision v. OSHRC, 599 F.2d 453 (1st Cir. 1979).A review of the evidence in this case reveals that the training offeredMcCune on this crane was, as Judge LaVecchia expressed, \”too short andhaphazard to be considered adequate.\” McCune had never operated a 718crane before the day of the incident. The testimony at the hearingestablished that the sum total of McCune’s exposure on this new, moresophisticated equipment was that he glanced briefly at the crane’scontrols and operating manual, then was given only 20 to 45 minutes,depending on the accuracy of the testimony, to familiarize himself withthe characteristics of the larger crane. One witness testified McCunehad trouble getting the personnel basket off the ground in thepreliminary operations on August 1, before the men entered the basket. The first operation he was called upon to perform was lifting a foremanand two pipefitters to a height of 200 feet.While the foreman, Nicolini, testified that he believed that McCune wasqualified to operate the 718 crane, several eyewitnesses to McCune’stest run and the later incident stated that McCune did not have thetechnical ability to operate the crane safely. They testified thatMcCune’s movements of the crane were erratic and that during his testrun McCune let the personnel basket down quite hard. Several of theseemployees were so doubtful of the safety of the operation, that theyrefused to ride in the personnel basket with McCune at the controls.The majority says that the testimony of these employees cannot be reliedupon because they were not familiar with crane operations. However, itis worth noting that Nicolini, the foreman who ordered the lift ofpersonnel in the basket, had no background in crane operations either. Nicolini was a maintenance foreman. He had not had experience inoperating heavy cranes, and was neither in a position to, nor had theauthority to qualify McCune to operate the 718 crane. The fact is thatno one familiar with crane operations witnessed McCune’s practicelifts. It was only after a day of personnel lifts and employeecomplaints that a foreman familiar with crane operations, Zeringue,reviewed McCune’s operation of the crane.The majority gives weight to the testimony that the 518 and 718 cranesare similar and a qualified 518 crane operator could acquaint himselfwith the 718 in less than one-half hour. I agree that the issue in thecase is not Amoco’s overall training program which appears to becomprehensive, and I concede that McCune was a properly trained operatoron the 518 crane. However, even an experienced operator requirespractice to operate new and unfamiliar machinery. The violation in thiscase is that employees were hoisted to a height of approximately 200feet during the operator’s familiarization period on a new piece ofequipment. McCune should have been thoroughly checked out on this cranebefore attempting to lift employees. The lifting apparently wasattempted at the instance of Nicolini, a maintenance foreman, who wasnot competent to judge the familiarization period necessary, or theproficiency of McCune on the 718 crane. Further, the fact that threeAmoco employees were jostled at 200 feet is persuasive that McCune wasnot sufficiently familiar with the 718 crane at that point.McCune testified that the reason the basket was jostled was that,unknown to McCune, a safety pawl had been left engaged. McCune had toraise the basket several times to disengage the pawl. The key point isthat the pawl left engaged was a safety feature of the 718 crane whichwas not on the 518 crane. McCune’s unfamiliarity with this safetyfeature demonstrates that the minimal training given to McCune by Amocodid not make him familiar with those features of the 718 crane whichdiffered from the 518.It is not enough for the equipment in the workplace to be safe. Safeequipment can become dangerous if the employees operating that equipmenthave not been properly instructed in the safety features of theequipment. Barker Brothers, 78 OSAHRC 5\/E7, 6 BNA OSHC 1283, 1977-78CCH OSHD ? 22,488 (No. 12964, 1978); Herbert Vollers, Inc., 76 OSAHRC135\/B7, 4 BNA OSHC 1798, 1976-77 CCH OSHD ? 21,230 (No. 9747, 1976);aff’d 565 F.2d 151 (3d Cir. 1977). Twenty to thirty minutes of \”selfinstruction\” is not sufficient training where, as here, the equipment istechnically complex and capable of doing great harm if not properlycontrolled.[[1\/]]————————————————————————The Administration Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Section 5(a)(1), 29 U.S.C. ? 654(a)(1), provides: Sec. 5(a)(1) Each employer–(a) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees.[[2\/]] Prior to McCune’s lifting Nicolini and the two other employees,an Amoco employee, Luther Fitts, observed McCune practicing with thecrane, and refused to get into the personnel basket. Fitts claimed thatMcCune jerked the basket around during his practice and that, in Fitts’opinion, McCune did not have the \”know how\” to operate the 718 crane. Fitts was suspended for the remainder of the workday when he continuedto refuse to ride in the personnel basket while McCune operated the crane.[[3\/]] The Secretary has not filed a brief on review but relies on thejudge’s decision.[[1\/]] McCune himself testified: \”That machine, when you get in the cabof it, looks like you are crawling in a spaceship. It has dials andswitches overhead, on the side and down the front. Something likenobody has ever seen at Amoco before.\”Moreover, the 718 crane had a reach of 310 feet, as compared with the518’s reach of 230 feet. Amoco’s mobile equipment supervisor, who hadqualified McCune on the 518, testified that length of boom is asignificant variable in the operation of a crane, both because lengthaffects the motion of the boom and because length must be factored intothe operator’s calculations for successful delivery of the load to thedesired site.”