Ben Hur Construction Co.

Plain-English summary

A Ben Hur Construction apprentice was killed while helping disassemble a crawler crane after he attached his fall-protection lanyard to a live crane cable. OSHA alleged that Ben Hur failed to follow the manufacturer's crane specifications and failed to train the employee to recognize and avoid unsafe conditions. The judge found that the manual described its disassembly instructions as recommended procedures and that its signalman warning applied while raising or lowering the gantry, not during the boom movement occurring at the time of the incident. He also credited evidence that the apprentice had received fall-protection and anchor-point instruction, including directions not to tie off to a live cable. The judge vacated both remaining items, with no penalties assessed; OSHA had withdrawn a separate machine-guarding item before the hearing.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(1); 29 C.F.R. § 1926.550(a)(8); 29 C.F.R. § 1926.503(a)(2)(iii); 29 C.F.R. § 1926.21(b)(2)
• Outcome: Both litigated serious items were vacated with no penalties, and a third item was withdrawn.
• Key point: The Secretary did not prove that the crane manual's recommendation was a binding specification or that the employee lacked adequate anchor-point training.

Full text (OSHRC public release)

                              UNITED STATES OF AMERICA
    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 09-1366
Ben Hur Construction Co.,
Respondent.
Appearances:
Evert Van Wijk, Esquire, Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri
For Complainant

      Julie O’Keefe, Esquire, Armstrong Teasdale, LLP, St. Louis, Missouri
               For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                    DECISION AND ORDER

      Ben Hur Construction is a steel erection contractor. On February 3, 2009, Steven Lillicrap,

an operator apprentice for Ben Hur, was killed as he and other Ben Hur employees were attempting
to disassemble a crawler crane at a construction site in Maryland Heights, Missouri. Occupational
Safety and Health Administration (OSHA) compliance officers John Schauster and Robert Rose
arrived at the site later that day to inspect the crane and surrounding area. Based on their inspection,
the Secretary issued two citations to Ben Hur on July 24, 2009.
Citation No. 1 alleges two violations of the Occupational Safety Act of 1970 (Act). Item 1
alleges a serious violation of 29 C. F. R. § 1926.550(a)(1), for failure to comply with the crane
manufacturer’s specifications and limitations applicable to the crane’s operation. The Secretary
proposes a penalty of $ 7,000.00 for Item 1. Item 2 alleges a serious violation of 29 C. F. R. §
1926.550(a)(8), for failure to guard moving parts of equipment to which employees were exposed.
Prior to the hearing, the Secretary withdrew Item 2 (Tr. 5).
Item 1 of Citation No. 2 originally alleged a willful violation of 29 C. F. R. §
1926.503(a)(2)(iii), for which the Secretary proposed a penalty of $ 70,000.00. At the hearing, the

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Secretary moved to amend the citation to allege a serious violation of 29 C. F. R. § 1926.21(b)(2),
for failure to instruct employees in the recognition and avoidance of unsafe conditions. She proposed
a penalty of $ 7,000.00 for this item. The court granted the Secretary’s motion to amend (Tr. 5).
The court held a hearing in this matter on May 11 and 12, 2010, in St. Louis, Missouri. Ben
Hur stipulates jurisdiction and coverage (Tr. 5). The parties have filed post-hearing briefs. Ben Hur
denies it violated either of the standards at issue.
For the reasons discussed, the alleged violations are vacated.
Background
Ben Hur is a steel erection contractor with its corporate headquarters in St. Louis, Missouri.
The company is more than 100 years old. In addition to steel erection, Ben Hur also erects precast
concrete and fabricates steel. Its president is William Brown, who began work as an ironworker in
1974 (Tr. 539-540, 564).
Ben Hur’s projects are concentrated in the Midwest. It operates three divisions: the western
division, the central division, and the eastern division, with St. Louis; Indianapolis, Indiana; and
Cincinnati, Ohio, respectively, as its divisional headquarters (Tr. 564). Generally, Ben Hur employs
150 to 160 employees. This number includes seven or eight project managers, seven or eight
superintendents, and fourteen to sixteen foremen. Ben Hur runs from fifteen to twenty projects at
a time (Tr. 542). Ben Hur owns five crawler cranes that it uses in the field (Tr. 563). It also rents
cranes for some of its projects (Tr. 565).
McCarthy was the general contractor for a project for Edward Jones. McCarthy entered into
several subcontracts with Ben Hur to set the steel for various phases of the project. Edward Jones
South refers to the corporate headquarters being constructed for the company. Edward Jones North
refers to the set of buildings where the company’s brokers were going to work (Tr. 562). In early
February 2009, a Ben Hur crew had completed setting the steel for Building 1 at Edward Jones
North, and was preparing to move its crane to another job site (Tr. 18).
The crane Ben Hur used on the Edward Jones North site was a 100-ton lattice boom Linkbelt
218 crawler crane (Tr. 17). In order to move the crane, the crew had to disassemble it. On February
3, 2009, Ben Hur’s crew consisted of crane operator Virgil (“Pete”) Bell, operator apprentice Steven
Lillicrap, equipment manager Joe McDermott, and three ironworkers (Tr. 20).

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The disassembly of the crane began at 7:00 a. m. Lillicrap experienced problems with his
truck that morning, and arrived late, at 7:30 a. m. By the time Lillicrap arrived, the crew had already
removed the catwalks and was preparing to lower the boom to the ground so it could be taken apart.
The boom included a 20-foot butt section that remains on the crane after disassembly. Together, Bell
and Lillicrap took the main pendants apart. The pendants are 1d inches in diameter, with a lug and
pin on each end so the pieces fit together. The ironworkers hooked onto the boom with a helper
crane, knocked the pins out, and loaded the boom onto a truck (Tr. 26-27, 36, 40-41, 178).
The Linkbelt crane has three drums. The main drum is the front, or load drum, and is located
to the left of the operator cab. The auxiliary drum is located slightly behind the load drum. The
boom hoist drum is in the back, and houses the cable that lifts the boom up and down (Exhs. C-1, C­
2; Tr. 43-47).
Bell entered the crane cab and wound the cable back up on the auxiliary drum, which is the
only drum the crew had been using at that point. The cable from the boom hoist drum runs up
through the gantry, through the mast and back, and then ends alongside the boom hoist drum,
approximately 2 feet away. A beckett holds the end of the cable in place. (Tr. 43-48, 58-59, 77, 194).
The next step in the disassembly was to remove two counterweights that sit on the back of
the crane. Each counterweight weighs between 22,000 and 23,000 pounds. Ben Hur has a work rule
requiring employees to use fall protection anytime they are working at heights of 6 feet or more above
the ground. Lillicrap kept a safety harness in the Linkbelt crane for these occasions. Bell told
Lillicrap that he would have to tie off, climb on top of the counterweights (approximately 9 feet
above the ground), and hook up the counterweights. Bell saw Lillicrap wearing his safety harness
and attached lanyard, but did not see where he tied off to. The crew then used the helper crane to
pick up the counterweights (Tr. 50, 61, 65, 104).
After the counterweights were laid down, the crew needed to pull the pins on the gantry so
it could be lowered. However, the Linkbelt crane was situated in a tight space, and Bell needed to
move the crane forward 10 to 12 feet in order to lower the gantry. Bell told Lillicrap to get down
from the crane while he moved it forward, and stay on the work platform (or landing) on the back
of the crane. The work platform is next to the boom hoist drum and is 6 feet, 9 inches above the
ground. As Bell stood on the ground, he told Lillicrap he would move the crane forward and raise

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the butt section (boom up), and then Lillicrap would pull four pins on the gantry so the gantry could
be lowered. Bell got up on the top of the track of the crane and repeated the instruction. When Bell
gave the instruction the second time, Lillicrap was standing on the work platform at the back of the
crane. Lillicrap acknowledged Bell’s instruction each time. Bell did not say anything to Lillicrap
about tying off while on the work platform. Bell could see Lillicrap from the chest up. He knew
Lillicrap was wearing his safety harness, but could not tell if he was tied off. There is no engineered
anchor point on the back of the crane (Exh. C-2; Tr. 69-72, 324).
When Lillicrap got onto the work platform, the butt section of the crane was a couple of feet
off the ground. The purpose of lifting the butt section of the boom was to make sure it did not hit
the ground, because the boom bounces as the crane moves forward. The boom also had to be raised
because the gantry and boom had to be scissored. Scissoring refers to keeping the boom cable tight
in order to keep it from getting slack. It requires the operator to lift the butt section approximately
45 to 50 degrees in order to get the hydraulic cylinders on the gantry to overhaul, otherwise the
cylinders will stall (Tr. 72-77).
Bell began moving the crane forward, boomed up, and then heard an ironworker yell, “Stop.”
Bell went back and saw that Lillicrap had been pulled down next to the boom hoist drum when Bell
boomed up and the drum turned. Lillicrap had attached his lanyard to the live end of the boom hoist
drum cable. He died from his injuries (Tr. 77-78).
Someone at the site called 911. The emergency dispatcher informed OSHA’s local office of
the accident. Compliance Officers John Schauster and Robert Rose arrived at the site at
approximately 9:30 a. m. They inspected the site, took photographs, and interviewed employees.
Based on this inspection, the Secretary issued the instant citations.
Discussion
The Secretary has the burden of proving the violation by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard,
the Secretary has the burden of proving: (a) the applicability of the cited standard,
(b) the employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or constructive knowledge of
the violation (i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

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Ben Hur does not dispute the applicability of the cited standards, employee exposure, or
employer knowledge. The company disputes only the Secretary’s contention it failed to comply with
the terms of the cited standards1.
Citation No. 1
Item 1: Alleged Serious Violation of § 1926.550(a)(1)
The Secretary contends Ben Hur did not comply with the manufacturer’s specifications and
limitations applicable to the operation of cranes. The citation alleges:

   At the Edward Jones construction site, building B1, during the disassembly of the
   Linkbelt 218 crane, and specifically just preceding lowering the gantry, when the
   boom was raised, the boom hoist cable was inrunning into the drum, and the operator
   did not have direct sight of the apprentice; the apprentice oiler was exposed to the
   hazard of being pulled into the rotating boom hoist while standing next to the drum
   in violation of the manufacturer’s warning. The operation manual, Model Linkbelt
   218H, Book No. WDT0002-004, states on page 5-23, “!WARNING Stay Clear Of
   All Moving Machinery During Raising Or Lowering Of Gantry. Position A
   Signalman To Observe All Areas Of Motion And Warn Operator Of Danger.”


   Section 1926.550(a)(1) provides:

   The employer shall comply with the manufacturer’s specifications and limitations
   applicable to the operation of any and all cranes[.]


   Ben Hur argues (1) the company complied with the manufacturer’s specifications and

limitations applicable to the operation of cranes, (2) the disassembly procedure described in the
operation manual is merely a recommendation and not a specification or limitation, (3) the manual
refers at other points to “booming up” without requiring a signal person, and (4) operator Virgil Bell
was not lowering the gantry when the accident occurred.

   “Specifications” is not defined in the Act. The American Heritage Dictionary (2d. Coll. Ed.)

defines a specification as, “A detailed and exact statement of particulars, especially a statement
prescribing materials, dimensions, and workmanship for something to be built, installed, or
manufactured.” “Specifications” connotes steps or instructions that are required, mandatory,

   1
    Issues not briefed are deemed waived. See George-Pacific Corp., 15 BNA OSHC 1127

(No. 89-2713).

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obligatory, and compulsory. The sense of “specifications” is an employer can be penalized if it does
not comply with the specification.

    On the other hand, “recommendation” does not imply an employer will be penalized if the

recommendation is not followed. It is a suggestion, a proposal, an option to be considered. A
recommendation is offered when one or more other courses of action are possible.

    The manual to which the Secretary refers in the citation is entitled “Disassembly Of The Crane

And Attachment” (Exh. R-4). Page 5-1 of the manual states (emphasis added):

    The size and weight of this machine usually requires that it will be partially
    disassembled for transportation. When it is moved to the job site, it will require
    reassembly. The instructions in this Section are the recommended, safe procedures
    for disassembling the machine. Due to job site conditions, availability of additional
    equipment and previous equipment disassembly experience, other methods may be
    used only if they are proven, safe methods.
    Page 5-23 of the manual addresses “Folding The Gantry.” As noted in the alleged violation

description of Item 1, a boxed message on the page warns:

    Stay Clear Of All Moving Machinery During Raising Or Lowering Of Gantry.
    Position A Signalman To Observe All Areas of Motion And Warn Operator Of
    Danger.
    The Secretary contends that, while the step-by-step instructions for lowering the gantry are

recommendations, the warning to use a signalman on page 5-23 is a specification the employer must
follow. The Secretary offers no evidence to support her reading of the manual. Each step of the
recommended instructions is written as an imperative sentence, commanding the workers to proceed
in a certain manner, just as the boxed warning is. Nowhere in the manual does the manufacturer
indicate that some of the sentences are recommendations, while others are specifications. The first
paragraph of the Disassembly Section states: “The instructions in this Section are the recommended,
safe procedures for disassembling the machine.” Placed as it is at the beginning of the Disassembly
Section, that sentence applies to all that follow.

    Assuming the warning is a specification Ben Hur was required to follow, the Secretary would

still fail to establish a violation of § 1926.550(a)(1). The warning states a signalman is needed
“during raising or lowering of gantry.” Bell was doing neither at the time of Lillicrap’s accident. This
is acknowledged by the Secretary’s own alleged violation description for Item 1, in which she states

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the accident occurred “specifically just preceding lowering the gantry.” The disassembly step Bell
was performing when Lillicrap was fatally injured was booming up. In this instance, Bell was
booming up preparatory to lowering the gantry, but lowering the gantry does not always follow
booming up. As Ben Hur points out in its brief, other steps in the manual instruct the operator to
boom up without warning the operator to position a signalman to observe the areas of motion (Exh.
R-4, p. 5-10). It is the act of raising or lowering the gantry, and not booming up or down, that
triggers the warning to position a signalman.

    The Secretary has not established Ben Hur failed to comply with the manufacturer’s

specifications applicable to the crane. Item 1 of Citation No. 1 is vacated.

                                         Citation No. 2

             Amended Item 1: Alleged Serious Violation of § 1926.21(b)(2)

    Amended Item 1 alleges:

    At the Edward Jones construction site, building B1, during the disassembly of the
    Linkbelt 218 crane, and specifically just preceding lowering the gantry, an employee
    who was fatally injured, and who was found immediately after the incident to have
    had his lanyard snaphook connected to the live line of the boom hoist drum resulting
    in the employee being pulled into the boom hoist drum, was not provided training on
    the use of personal fall arrest harness and double lanyard, and specifically on where,
    when, and how to attach his lanyard to a safe anchor point.
    Section 1926.21(b)(2) provides:

    The employer shall instruct each employee in the recognition and avoidance of
    unsafe conditions and the regulations applicable to his work environment to
    control or eliminate any hazards or other exposure to illness or injury.


    Section 1926.21(b)(2) requires an employer to “instruct its employees in the recognition

and avoidance of those hazards of which a reasonably prudent employer would have been aware.”
Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2015 (No. 90-2668, 1992). The Secretary
alleges Ben Hur failed to instruct Lillicrap in the use of fall protection, specifically in the hazard of
tying off to “inappropriate anchor points” (Secretary’s brief, p. 14). Ben Hur argues its training
complies with the requirements of § 1926.21(b)(2), and the Secretary did not prove the company
failed to instruct Lillicrap to tie off to safe anchor points.

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Lillicrap was an apprentice operator and had completed one year of Operating Engineers
Local 513 apprenticeship program. The program lasts three years. The first year includes 120
hours of training on a rubber tire backhoe. The second year focuses on cranes and the third year
focuses on rubber tired scrappers. At the Operating Engineers training center, Lillicrap had
completed 8 hours of orientation, 32 hours of pre-apprenticeship, 40 hours of an indentured
week, and 120 hours of backhoe training. The indenture week was a full week of classroom
safety training, the OSHA 10-hour class, a tool class, and a crane oiler class (Tr. 261-268).

   The record establishes Lillicrap was an exceptionally able apprentice. Bell testified he

recognized Lillicrap’s abilities and potential shortly after they began working together. Lillicrap
came from a family that had worked in crane operation, and he was familiar with the industry (Tr.
158-159, 197-200). Bell testified Lillicrap was a quick learner and “very mechanically inclined”
(Tr. 166).

   Hugh Murphy is the general manager for Linkbelt’s distributor in the Midwest (Tr. 487).

In October 2008, Murphy went to St. Louis to coordinate on-site supervision and training on a
new Kobelco CK-2000, 200-ton crawler crane that Ben Hur had purchased. Murphy spent the
day with Bell and Lillicrap, instructing them in the use of the new crane (Tr. 488-489). He
testified he found Lillicrap to be “work-wise,” which “is a term we use in the field to compliment
a person when they know what’s going on; when they’re in the game, when they have the
mechanical aptitude, the ability to be around machinery and to understand the processes” (Tr.
500). Murphy stated:

   Mr. Lillicrap was work-wise, no question about it. I think there were several
   comments on what a good hand he was, how he carried himself, how he tried to
   anticipate the next move, how he was definitely in the game. And, I think, you
   know, Mr. Bell and I had a discussion afterwards where I complimented him on his
   apprentice, you know, that the person was certainly work-wise and capable.

(Tr. 500).

   General contractor McCarthy requires any employee working on one of its sites to

complete a safety orientation given by the McCarthy safety coordinator. The orientation consists
of safety videos and discussion, followed by a test. The orientation covers fall protection,
including the 6-foot tie-off requirement, and the requirement an employee must be tied off to an

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anchor point capable of supporting at least 5,000 pounds. Lillicrap attended the orientation with
Bell on the Edward Jones South project. He also attended the orientation without Bell on the
Edward Jones North project when he first started (Exhs. C-12, C-13; Tr. 84-88). The Ben Hur
foreman on the Edward Jones project conducted tool box meetings during which he discussed fall
protection (Exh. C-6; Tr. 100-102).

    The Secretary contends this safety training regarding fall protection did not address tying

off to safe anchor points. Bell, however, testified he specifically instructed Lillicrap, “[M]ake
sure you’re tied off to the dead end [of the crane cable], make sure you’re not on the live end”
(Tr. 192). The Secretary suggests Bell’s testimony is “highly suspect” on this point (Secretary’s
brief, p. 21). Even if Bell did instruct Lillicrap not to tie off to a live cable, the Secretary argues,
this instruction did not come from a designated safety representative for Ben Hur, and should not
be considered.

    Mitch Angell was a superintendent for Ben Hur on the Edward Jones North precast

project (Tr. 521). He corroborates Bell’s testimony that he instructed Lillicrap not to tie off to a
live cable. Angell had previously worked with Bell and Lillicrap on another project. He observed
Bell tell Lillicrap at least three times on that project, “Watch the cables, watch the drums, don’t
have your hands or anything in the way of moving parts” (Tr. 526). Angell also stated he
observed Bell tell Lillicrap, “Do not tie off to your cable or anything, watch where your feet are
too” (Tr. 523).

    On the issue of whether Bell trained Lillicrap in anchor point safety, the court credits the

testimony of Bell and Angell. The court also finds Bell was qualified to provide safety training to
Lillicrap. The record establishes Bell is a highly qualified crane operator. At the time of the
hearing, he had been a union member for 42 years. He had worked for Ben Hur for 24 years (Tr.
16-17). Ben Hur president William Brown testified Bell is highly regarded as the best crane
operator working in the St. Louis area. Ben Hur keeps Bell on the payroll year round, even when
he is not working on a project, because the company does not want another company to hire him,
thus limiting his availability (Tr. 551). On the Edward Jones project, Bell was the crane operator
and Lillicrap the operator apprentice. Bell worked more closely with Lillicrap than anyone else on
the job. As an experienced, qualified operator, Bell was able to instruct Lillicrap in the fall

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protection safety, including anchor point training.

   The Secretary has failed to show by a preponderance of the evidence that Ben Hur failed

to instruct Lillicrap in the use of anchor points. She seems to base her argument that Lillicrap did
not receive anchor point training on the basis that Lillicrap tied off to a live cable. The Secretary
wants the court to extrapolate from this fact that Ben Hur did not train Lillicrap to recognize
tying off to a live cable is a hazard. The court declines to do so. As Schauster conceded,
Lillicrap “could have been properly instructed, and he potentially could mistakenly put his latch on
the live line and not on the dead line” (Tr. 385). As stated by the Review Commission, the issue
“is whether the employer’s program of safety instructions provided adequate guidance to the
employees, not whether the accident could have been averted.” El Paso Crane and Rigging Co.,
Inc., 16 BNA OSHC 1419 1427 (No. 90-1106, 1993).

   Item 2 of Citation No. 2 is vacated.

                FINDINGS OF FACT AND CONCLUSIONS OF LAW
   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER

   Based upon the foregoing decision, it is ORDERED that:

   1. Item 1 of Citation No. 1, alleging a serious violation of § 1926.550(a)(1), is vacated,

and no penalty is assessed;

   2. Item 2 of Citation No. 1, alleging a serious violation of § 1926.550(a)(8), was

withdrawn by the Secretary; and

   3. Item 1 of Citation No. 2, as amended, alleging a serious violation of § 1926.21(b)(2), is

vacated, and no penalty is assessed.

                                                           __/s/______________
                                                           KEN S. WELSCH

Date: November 3, 2010 Judge

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