“Docket No. 79-5292 SECRETARY OF LABOR, Complainant, v.AMOCO TEXAS REFINING COMPANY, Respondent, OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION AND ITS LOCAL 4-449,Authorized Employee Representative.OSHRC Docket No. 79-5292DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:This case is before the Commission for review under section 12(j), 29 U.S.C. ? 661(i), ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”).\u00a0 Administrative Law Judge Louis LaVecchia found that Respondent, AmocoTexas Refining Company (\”Amoco\”), violated the general duty clause, section5(a)(1) of the Act,[[1\/]] by allowing an employee to hoist personnel with a long boomcrane when the employee was not sufficiently trained in the machine’s operation.\u00a0 Wereverse Judge 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.\u00a0 The employee’s complaintstemmed from an incident in which several Amoco employees were jostled while riding in thepersonnel basket of a long boom crane.An explosion occurred at the Amoco workplace several weeks before theincident.\u00a0 Because access to certain high points of the plant had been destroyed,Amoco rented a Link-Belt model LS-718 long boom crane to lift maintenance employees tothose areas. The 718 is a larger long boom crane than the LS-518 cranes which Amocoalready had at its workplace.On August 1, William McCune was asked to operate the 718 crane.\u00a0 McCunewas qualified to operate the 518 crane but had never performed a job with the 718 crane.\u00a0Before he used the crane, McCune reviewed the 718 crane’s controls and safetyfeatures and looked at portions of the operator’s manual.\u00a0 McCune testified that hedid not review the entire operator’s manual too closely because the manual dealt primarilywith crane maintenance.Before he made a lift, McCune \”went through the motions\” with thecrane as the foreman, William Nicolini, looked on.\u00a0 After this exercise, Nicoliniwent up in the personnel basket with two other employees for a test run.\u00a0 The testrun went smoothly.\u00a0 Nicolini testified that, in his opinion, McCune was able tooperate the crane safely.\u00a0 McCune also testified that after acquainting himself withthe crane and making the test 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 the ground. \u00a0McCune then went to eat, and Bill Lloyd took a second crew up in the basket.\u00a0 Whilethis crew was working, McCune came back and replaced Lloyd.When the crew wanted to come down, they got into the basket and attachedtheir safety harnesses.\u00a0 McCune swung the basket away from the building but, whenMcCune tried to lower the basket, the basket would not come down.\u00a0 Lloyd had left apawl engaged but had not told McCune.\u00a0 The pawl is a safety device which, whenengaged, allows the basket to be raised but not lowered.\u00a0 In order to release thepawl, McCune raised the basket several times and after doing so was prepared to bring thecrew down.\u00a0 The crew members testified that the basket was jostled several feet onthree to five occasions.\u00a0 Believing that it would be dangerous to remain in thebasket while McCune operated the crane, they signaled to be brought back over to thebuilding and descended to the ground level using a stairway that had been badly damaged inthe explosion.Based principally on this incident, the Secretary issued a section 5(a)(1)citation which alleged:The crane operator was not trained or familiar with the crane operating controls oroperating 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 manual as specified by themanufacturer.\u00a0 The above existed in the area of No. 3 Cat Cracker.Judge LaVecchia found a section 5(a)(1) violation.\u00a0 He reasoned thatduring the incident the workmen in the basket were exposed to possible serious harm ordeath from being thrown out of the personnel basket.\u00a0 Judge LaVecchia also concludedthat McCune’s training on the 718 crane \”was too short and haphazard to be consideredadequate.\”II The Secretary alleges, and the judge found, that McCune was not adequatelytrained to operate the LS-718 crane safely [[3\/]] Amoco does not dispute that a failure toproperly train a crane operator before permitting him to hoist personnel would violatesection 5(a)(1), but contends that McCune was adequately trained.There is no doubt that McCune was qualified to operate the 518 crane.\u00a0At Amoco, heavy equipment operators are trained on progressively more difficult andsophisticated equipment.\u00a0 An employee starts by driving a truck and moves throughseveral other pieces of heavy equipment until he is qualified to handle a long boom crane.\u00a0 Amoco’s program also combines classroom work with on-the-job training.\u00a0 McCunemastered various pieces of heavy equipment and several months before the incident becamequalified to operate the 518 crane.The theory of the Secretary’s case is that McCune was not qualified to operate a 718 craneeven though he may have been qualified to operate a 518 crane.\u00a0 However, testimony ofseveral witnesses familiar with long boom cranes indicates that the operation of variouslong boom cranes is similar and that a qualified crane operator can familiarize himselfwith a new crane in about a half hour. McCune testified that the 718 crane was \”verysimilar\” to the 518 crane.\u00a0 Francis Zeringue, who trains and qualifies employeesto operate cranes and who has had many years experience with long boom cranes, testified:Q.\u00a0 As of February, 1979, was he qualified to operate any crane that youhad at the plant?A.\u00a0 Yes, sir.\u00a0 As of that date, Mr. McCune was ready to operate any heavyequipment that I had.Q.\u00a0 Okay.\u00a0 Was McCune qualified to operate the rented crane?A.\u00a0 Yes, sir, he was.Q.\u00a0 And why do you say this?A.\u00a0 Because.\u00a0 Basically, this crane, this 718, is identical to many other craneswhether it be another Link-Belt, a Manitowoc, an American.\u00a0 Basically, all the cranesare alike.You can — If a man has qualified as a heavy equipment, he can operate allthe cranes that have been put in front of him.Q.\u00a0 Do you have other equipment operators at the plant who may havenever seen the Link-Belt 718, but nevertheless could operate it after a break-in period?A.\u00a0 Yes.Q.\u00a0 And, how long a break-in period do you think that they would need?A.\u00a0 For a real heavy equipment operator that had been okayed?He could familiarize himself to operate it in about, maybe, 30 minutes.Q.\u00a0 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 pretty muchidentical\” and testified:Q.\u00a0 How long should it take a qualified crane operator, long boom craneoperator, to familiarize himself with a new long boom crane, a new piece of equipment, sothat he could operate it safely?A.\u00a0 Well, depending on the individual to some degree.\u00a0 But five, say 10 minutesto half an hour.The Secretary presented the testimony of several workers who believed McCunewas not qualified to operate the 718, including the employees who were in the basket whenit was jostled.\u00a0 While these employees’ concern for their own safety isunderstandable, they did not have any experience in operating long boom cranes and wereunable to testify as to the amount of training necessary for a person to become qualifiedto operate a 718 crane.\u00a0 Moreover, the Secretary presented no probative evidenceconcerning the amount of training necessary for a qualified 518 operator to handle a 718crane safely.Essentially, the only evidence that tends to suggest McCune was not qualifiedto operate the 718 is the fact that he experienced some difficulty in handling the craneduring the incident that led to the citation.\u00a0 However, in light of the total recordevidence, that incident alone is insufficient to demonstrate that McCune was unqualifiedas alleged.\u00a0 Whether the record establishes that McCune was not qualified to operatethe 718 crane must be determined by evidence relating to his training and experience andthe degree of training necessary to become qualified for operation of the equipmentinvolved.\u00a0 The record fails to sustain the Secretary’s theory.\u00a0 Accordingly, theSecretary has not proven 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.\u00a0 SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED:\u00a0 MAR 25 1983CLEARY, Commissioner, dissenting:I would affirm Judge LaVecchia’s decision.\u00a0 I disagree with theCommission’s finding that the brief training period provided to crane operator McCune wassufficient to enable him to operate the 718 crane safely.This Commission has long held that an inadequate training program can be thebasis of a section 5(a)(1) violation.\u00a0 Stepan Chemical Co., 77 OSAHRC 74\/E6, 5 BNAOSHC 1367, 1977-78 CCH OSHD ? 21,784 (No. 5562, 1977).\u00a0 An employer must take allfeasible steps to protect its employees from recognized dangers that are causing or arelikely to cause death or serious physical injury.\u00a0 National Realty & ConstructionCo. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973).\u00a0 Such steps include, wherenecessary, the employer’s provision of an adequate safety and training program.\u00a0 Id.;General Dynamics Corp., Quincy Shipbuilding Division 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 and haphazard tobe considered adequate.\”\u00a0 McCune had never operated a 718 crane before the dayof the incident.\u00a0 The testimony at the hearing established that the sum total ofMcCune’s exposure on this new, more sophisticated equipment was that he glanced briefly atthe crane’s controls and operating manual, then was given only 20 to 45 minutes, dependingon the accuracy of the testimony, to familiarize himself with the characteristics of thelarger crane.\u00a0 One witness testified McCune had trouble getting the personnel basketoff the ground in the preliminary operations on August 1, before the men entered thebasket.\u00a0 The first operation he was called upon to perform was lifting a foreman andtwo pipefitters to a height of 200 feet.While the foreman, Nicolini, testified that he believed that McCune was qualified tooperate the 718 crane, several eyewitnesses to McCune’s test run and the later incidentstated that McCune did not have the technical ability to operate the crane safely. \u00a0They testified that McCune’s movements of the crane were erratic and that during his testrun McCune let the personnel basket down quite hard.\u00a0 Several of these employees wereso doubtful of the safety of the operation, that they refused to ride in the personnelbasket with McCune at the controls.The majority says that the testimony of these employees cannot be relied uponbecause they were not familiar with crane operations. However, it is worth noting thatNicolini, the foreman who ordered the lift of personnel in the basket, had no backgroundin crane operations either.\u00a0 Nicolini was a maintenance foreman.\u00a0 He had not hadexperience in operating heavy cranes, and was neither in a position to, nor had theauthority to qualify McCune to operate the 718 crane.\u00a0 The fact is that no onefamiliar with crane operations witnessed McCune’s practice lifts.\u00a0 It was only aftera day of personnel lifts and employee complaints that a foreman familiar with craneoperations, Zeringue, reviewed McCune’s operation of the crane.The majority gives weight to the testimony that the 518 and 718 cranes aresimilar and a qualified 518 crane operator could acquaint himself with the 718 in lessthan one-half hour.\u00a0 I agree that the issue in the case is not Amoco’s overalltraining program which appears to be comprehensive, and I concede that McCune was aproperly trained operator on the 518 crane.\u00a0 However, even an experienced operatorrequires practice to operate new and unfamiliar machinery.\u00a0 The violation in thiscase is that employees were hoisted to a height of approximately 200 feet during theoperator’s familiarization period on a new piece of equipment. McCune should have beenthoroughly checked out on this crane before attempting to lift employees.\u00a0 Thelifting apparently was attempted at the instance of Nicolini, a maintenance foreman, whowas not competent to judge the familiarization period necessary, or the proficiency ofMcCune on the 718 crane.\u00a0 Further, the fact that three Amoco employees were jostledat 200 feet is persuasive that McCune was not sufficiently familiar with the 718 crane atthat point.McCune testified that the reason the basket was jostled was that, unknown toMcCune, a safety pawl had been left engaged. McCune had to raise the basket several timesto disengage the pawl.\u00a0 The key point is that the pawl left engaged was a safetyfeature of the 718 crane which was not on the 518 crane.\u00a0 McCune’s unfamiliarity withthis safety feature demonstrates that the minimal training given to McCune by Amoco didnot make him familiar with those features of the 718 crane which differed from the 518.It is not enough for the equipment in the workplace to be safe.\u00a0 Safeequipment can become dangerous if the employees operating that equipment have not beenproperly instructed in the safety features of the equipment.\u00a0 Barker Brothers, 78OSAHRC 5\/E7, 6 BNA OSHC 1283, 1977-78 CCH OSHD ? 22,488 (No. 12964, 1978); HerbertVollers, Inc., 76 OSAHRC 135\/B7, 4 BNA OSHC 1798, 1976-77 CCH OSHD ? 21,230 (No. 9747,1976); aff’d 565 F.2d 151 (3d Cir. 1977).\u00a0 Twenty to thirty minutes of \”selfinstruction\” is not sufficient training where, as here, the equipment is technicallycomplex and capable of doing great harm if not properly controlled.[[1\/]]The Administration Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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:\u00a0 Sec. 5(a)(1) Each employer–(a) shall furnish to each of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[2\/]] Prior to McCune’s lifting Nicolini and the two other employees, anAmoco employee, Luther Fitts, observed McCune practicing with the crane, and refused toget into the personnel basket.\u00a0 Fitts claimed that McCune jerked the basket aroundduring his practice and that, in Fitts’ opinion, McCune did not have the \”knowhow\” to operate the 718 crane.\u00a0 Fitts was suspended for the remainder of theworkday when he continued to refuse to ride in the personnel basket while McCune operatedthe crane.[[3\/]] The Secretary has not filed a brief on review but relies on thejudge’s decision.[[1\/]] McCune himself testified:\u00a0 \”That machine, when you get in the cab of it,looks like you are crawling in a spaceship.\u00a0 It has dials and switches overhead, onthe side and down the front.\u00a0 Something like nobody has ever seen at Amocobefore.\”Moreover, the 718 crane had a reach of 310 feet, as compared with the 518’sreach of 230 feet.\u00a0 Amoco’s mobile equipment supervisor, who had qualified McCune onthe 518, testified that length of boom is a significant variable in the operation of acrane, both because length affects the motion of the boom and because length must befactored into the operator’s calculations for successful delivery of the load to thedesired site.”