Midwest Equipment Company

Read the official release (oshrc.gov)

Plain-English summary

Midwest Equipment assembled a mobile crane for a cell-tower project when a 3,400-pound jib fell and seriously injured a crew member. The judge found that attaching the jib was crane assembly, not an uncovered setup activity. Midwest failed to follow the manufacturer's procedures by omitting a required strap and allowing the pivot pin to be released prematurely. The assembly director also failed to understand the applicable procedures, explain crew tasks and hazardous positions, or establish and enforce adequate work rules. The employee-misconduct defense failed because Midwest identified no specific communicated and enforced rule that would have prevented the violations. All four items were affirmed as serious. Grouped penalties of $9,282 and $6,630 were assessed, for a total of $15,912.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1403(a), 29 C.F.R. § 1926.1404(b), 29 C.F.R. § 1926.1404(d)(1), and 29 C.F.R. § 1926.1400(f).
• Outcome: Four serious crane assembly and work-rule items affirmed with $15,912 total penalties.
• Key point: Crane assembly includes the preliminary steps needed to install components, and the assembly director must understand the procedure and brief the crew before work begins.

Full text (OSHRC public release)


Midwest Equipment Company OSHRC Docket No.:19-0723

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

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9 th
Floor

Washington, DC 20036-3457

Secretary of Labor,

Complainant

v.

OSHRC Docket No.:
19-0723

Midwest Equipment Company ,

Respondent.

Appearances:

Lisa A. Cottle , Esq.

Office of the Solicitor, U.S . Department of Labor, Cleveland, Ohio

For Complainant

Tod T. Morrow, Esq.

Morrow & Meyer LLC, Canton, Ohio

For Respondent

BEFORE: Administrative Law Judge
Sharon D. Calhoun

DECISION AND ORDER

Midwest Equipment Company (Midwest),
located in Cleveland, Ohio,
provides full-service crane rental and
operation
(Tr. 256). On December 18, 2018,
a Midwest employee was severely injured when attempting to mount a top jib and base section to the boom head of a Tadano, ATF 220G-5,
all-terrain hydro mobile crane at a worksite
located at 9539 Long Run Road Graysville,
Ohio (Graysville
worksite)
(Tr. 27). In response to the employee’s worksite injury the Occupational Safety and Health Administration (OSHA)
conducted
an inspection
of the Graysville worksite on December 19, 2018. The inspection was led by
OSHA Compliance Safety and Health
Officer (CSHO) Matthew Marcinko
(Tr. 114). As a result of OSHA’s inspection, the Secretary of Labor (Secretary) issued a Citation and Notification of Penalty (Citation) to Midwest on April 9, 2019, alleging four serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act) as follows:

Item 1a alleges a serious violation of 29 C.F.R.
§ 1926.1403(a) for failing to comply with
manufacturer procedures applicable to assembly and disassembly.

Item 1b alleges a serious violation of
29 C.F.R. § 1926.1404(b)
for failure of the Assembly/Disassembly (A/D)
director to understand the applicable assembly/disassembly procedures. The Secretary proposes a grouped penalty of $9,282 for items 1a and 1b.

Item 2a alleges a serious violation of 29 C.F.R. § 1926.1404(d)(1) for failure of the A/D
director to ensure the crew members understood their tasks, the hazards associated with their tasks, and the hazardous positions/locations they needed to avoid.

Item 2b alleges a serious violation of 29 C.F.R. § 1926.1400(f) for failing
to establish, effectively communicate, and enforce work rules. The Secretary proposes a grouped penalty of $6,630 for items 2a and 2b.

JURISDICTION AND COVERAGE

Midwest filed a timely notice of contest bringing this
matter before the Occupational Safety and Health Review Commission (Commission). Thereafter,
the Court held
a hearing
on February 20-21, 2020, in Cleveland, Ohio. Both parties filed post-hearing briefs on June 8, 2020. The parties stipulated jurisdiction of this action is conferred upon the Commission pursuant to §10(c) of the Act (Tr. 26). Midwest also
admits that at all times
relevant to this
proceeding
it was an employer engaged in a business affecting interstate commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 25-26).

Based on the stipulations and the record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act and Midwest is a covered employer under § 3(5) of the Act.

For the reasons that
follow, the Court
AFFIRMS
Items 1a,
1b, 2a and 2b of the Citation as serious,
and assesses penalties in the amount of $9,282 for Items 1a and 2b,
and $6,630 for Items 2a and 2b.

STIPULATIONS

The parties
reached
the following stipulations which were read into the record:

1. Jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651
   et. seq. , hereinafter the Act, 19 U.S.C. § 659(c).

2. At all times material to this action, Respondent, Midwest Equipment Company, had a worksite at 9539 Long Run Road, Graysville, Ohio, 45734, on December 18, 2018.

3. Midwest Equipment Company is a full-service crane rental company that employed individuals for a cell tower erection project at the worksite on December 18, 2018 and December 21, 2018.

4. On December 18, 2018, Respondent’s employees were working with a Tadano, ATF 220G-5, all-terrain hydro mobile crane.

5. On December 18, 2018, Respondent’s employee,
   [R. B.],
   was injured when the crane’s jib rolled of the jib ramp.

6. [R. B.]
   was hit by the falling jib and sustained serious injuries. He remains a Midwest employee, but has not yet been released to return to work.

7. At all times relevant to this action, Midwest Equipment Company was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. § 651(5).

8. The injuries sustained by
   [R. B.]
   are serious and if there is a violation, it would be properly characterized as serious.

(Tr. 24-27).

BACKGROUND

Midwest operates as a full-service crane rental company (Tr. 26-27). It employs approximately 25
employees at its Cleveland, Ohio facility (Tr. 256). In December 2018, Midwest was engaged in crane rental operations
regarding
a cell tower erection project on Long Run Road in Graysville, Ohio (Tr. 26-27). The multi-day project consisted
of installing additional sections to the top of a cellular tower (Tr. 60-62). The Graysville
worksite utilized
three
employees
(Tr. 26-27, 54-57). Midwest’s worksite management
included
A/D
director
Jon Rogers, assist crane operator Dennis Hosler and the injured crew member (Tr. 73-76, 226, 270, 320).

OSHA initiated its
inspection of the Graysville
worksite following Midwest’s report to OSHA on December 19, 2018, of an accident at the worksite resulting in an employee suffering serious injuries (Tr. 24-25, 27, 114, 336-337, 377-378). The employee was engaged in
installing
components to the
Tadano, ATF 220G-5, all-terrain hydro mobile crane
(Tadano)
when a
jib weighing
3,400
pounds
fell on
him,
causing severe injuries
(Tr.
27,
68-70, 152, 447). During OSHA’s inspection,
CSHO Marcinko 1
met
with
Michael Simerale, a Field Superintendent and
representative for Midwest. Jocko Vermillion, a consultant for Midwest,
was present by
telephone (Tr. 114-116). The
CSHO
then conducted
an opening conference
and
began his walk around inspection where he took photographs of the worksite
(Tr. 114-116). He
conducted interviews on January 2, 2019
(Tr. 117-118). Thereafter,
the CSHO
held a
closing conference with
Jocko
Vermillion,
Michael
Simerale
and Midwest’s president, Michael
Ricchino
(Tr. 133). As a result of the inspection,
OSHA issued citations for
alleged violations
of
the
crane
and derrick
safety
standards pertaining to
assembly/disassembly
procedures and workplace rules.

Midwest had been hired to install multiple sector frames to a TelCom Construction cellular tower at the Graysville worksite (Tr. 26-27, 274-275). On December 18, 2018,
Midwest employees met
in Cleveland, Ohio
before leaving for the worksite
(Tr. 26-27, 274-275). A/D
director Rogers did not discuss the hazards associated with the work to be performed that day (Tr. 53). The
Midwest employees
proceeded
to the Graysville
worksite.

Rogers drove the Tadano
mobile crane, Hosler drove a small boom truck with an assist crane mounted on it, and
R. B. 2

drove a flatbed truck containing counterweights for the Tadano (Tr. 53-54, 328, 367). Hosler proceeded directly to the worksite, while Rogers and
R. B.
met at a predetermined laydown site approximately three-quarters of a mile from the worksite (Tr. 54-56, 306). At the laydown site, Rogers and
the injured employee
refueled
the Tadano (Tr. 55-56). Rogers
did not discuss any hazards
associated with the tasks to be performed that day
with R. B. while at the laydown site
(Tr.
52,
56).

Rogers and
R. B.
finished the last leg of their journey and arrived at the worksite
where they met with
Hosler (Tr. 55). Upon their arrival, the
three
employees formulated a plan
regarding
how they would move forward with the project (Tr. 331). The
plan consisted of
discussing the unevenness of the ground and steps to level it for the crane. It also included a discussion of
tree and fence obstacles
which
needed to be avoided (Tr. 331-332). Because the
Tadano did not arrive at the worksite fully assembled, the
next steps would require
installing the
additional jib sections
so
the Tadano
could reach
to
the top of
the
cell tower (Tr. 58-62).

Cautionary decals
were located on the side of the Tadano
warning the pivot pin was not to be removed until necessary to do so (Tr. 224-225; Ex. C-5). Rogers
did not
instruct the other employees not
to
remove the pivot pin (Tr. 396). However, he
testified he visually inspected the pivot pin on at least three separate occasions: that morning in Cleveland,
at the laydown site, and at the Graysville worksite (Tr.
364,
368-369,
373, 385-386).

Once the
Tadano
arrived,
the employees leveled the work area
for the crane
and extended its outriggers to
the
outrigger pads (Tr. 64-65, 127). Counterweights were
then
put in place (Tr. 65-66, 127). The outrigger pads and counterweights
were not attached to the Tadano during transport. They were separately transported to the worksite
on
R. B.’s truck (Tr. 64-66, 127). Once the outrigger pads and counterweights were
in place, the employees were to pull the swing away jib from the boom, attach it to the end of the main boom, and
then
release the pivot pin (Tr. 66-67, 127).

While attempting to swing the
jib
it
stuck
(Tr. 66-68). Rogers
then
instructed
R. B.
to use a tag line to negotiate the jib into place (Tr. 66-68, 376). R. B.
tugged on the 20-foot tag
line, but
was not able to shift the jib (Tr. 66-68, 376). Rogers
noticed
R. B.
was having
trouble with the tag line
so he
instructed Hosler to help R.
B.
(Tr. 376-377). As Hosler approached
R. B.
he noticed the jib beginning to fall. He
ran to get away (Tr.
335). R. B.
did not
realize
the jib
was
falling. He
was crushed by
the
3,400 pound
weight
of the jib, and sustained
serious injuries (Tr.
24-27, 70).

As a result of CSHO Marcinko’s investigation of the accident, OSHA issued Midwest
four
serious citations. One was
issued
for a violation of 29 C.F.R. §
1926.1403(a)
regarding
Midwest’s failure
to comply with manufacturer procedures applicable to assembly and disassembly
by disregarding the use of a strap
required by
the manufacturer’s instructions,
and
by releasing the pivot pin prematurely
(Tr. 134-136; Exs. C-5, C-5A). A
citation for a violation
of
29 C.F.R.
§
1926.1404(b)
was issued
for
A/D
director Rogers’s failure
to understand the applicable assembly/disassembly procedures. OSHA issued a
citation for a violation of 29 C.F.R. § 1926.1404(d)(1)
due to
A/D
director Rogers’s failure to ensure
his crew members understood their tasks, the hazards associated with those tasks, and the hazardous position/locations that they needed to avoid (Tr. 142-145). And OSHO issued a
citation for
a
violation of 29 C.F.R.
§
1926.1400(f)
due to
Midwest’s
failure
to establish, effectively communicate, and enforce work rules (Tr. 155-158).

THE CITATION

The Secretary 's Burden of Proof

In
order to establish a violation of
a safety standard under the
Ac t
the Secretary must prove by a preponderance of the evidence that: (1) the cited standard applies; (2) the employer failed to comply with the terms of that standard; (3)
employees had access to the hazardous condition covered by the standard; and (4)
the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Astra Pharm. Prods ., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d in relevant part,  681 F.2d 69 (1st Cir. 1982).

Assembly or
Set - up ?

Subpart CC of the Occupational Safety and Health Standards in Part 1926 addresses cranes and derricks used in construction. Section 1926.1400 elaborates on the scope of the standard and more specifically
provides
the standard is applicable to “mobile cranes (such as wheel-mounted, rough-terrain, all-terrain, commercial truck-mounted, and boom truck cranes).” The parties
stipulated
that
on December 18, 2018, Midwest’s employees were working with a Tadano ATF 200G-5 all-terrain hydro mobile crane (Tr. 27). Therefore, the provisions of 1926.1400 are applicable.

Midwest does not argue the
Tadano
is not covered by the standard. Instead,
it argues the
activi ti es
it was engaged in at the time of the accident are not covered by the standard because it was engaged in
set-up
and not assembly. Section 1926.1401
defines assembly as follows:

Assembly/Disassembly  means the assembly and/or disassembly of equipment covered under this standard.
With regard to
tower cranes,
‘ erecting and climbing ’
replaces the term
‘ assembly, ’
and
‘ dismantling '
replaces the term
‘ disassembly. ’
Regardless of whether the crane is initially erected to its full height or is climbed in stages, the process of increasing the height of the crane is an erection process.

29 C.F.R. §1926.1401. Although
the term “assembly”
may
appear ambiguous,
its meaning is

clear.

When interpreting a standard, the first consideration
begins with the language of the statute itself. See Consumer Product Safety Commission v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980) . “If the meaning of the [regulatory] language is ‘sufficiently clear,’ the inquiry ends there.” Davey Tree Expert , 25 BNA OSHC 1933, 1934, 1937 (No. 11-2556, 2016 ),
quoting
Beverly Healthcare-Hillview,
21 BNA OSHC 1684, 1685 (No. 04-1091, 2006),
aff’d in relevant part , 541 F.3d 193 (3d Cir. 2008). The regulatory language is considered ambiguous where the meaning is “not free from doubt.” Martin v. OSHRC
( CF&I ), 499 U.S. 144, 150-51 (1991). Where the regulatory language is ambiguous,
deference should be afforded to the Secretary’s reasonable interpretations of nebulous regulations promulgated under the Act. Id.
at 158. When considering the reasonableness of the Secretary’s interpretation, the Commission may consult the regulation’s preamble, the promulgation of interpretive rules, and agency enforcement guidelines . Id.
at 157.
“Where the language of the standard itself is not explicit on the matter in issue,” the Commission will look to the standard’s legislative history. Superior Rigging & Erecting Co ., 18 BNA OSHC 2089, 2091 (No. 96-0126, 2000). The preamble to the standard provides the “most authoritative evidence of the meaning of the standard.” Id .; Am. Sterilizer Co. , 15 BNA OSHC
1476, 1478 (No. 86-1179, 1992).

When interpreting terms that are disputed, the Commission looks to “the provisions of the whole law, and to its object and policy.”
Phoenix Roofing, Inc.,
17 BNA OSHC 1076, 1077 (No. 90-2148, 1995). The Commission applies the rule of statutory construction that “each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.”
Morrison-Knudsen Co. / Yonkers Contracting Co ., 16 BNA OSHC 1105, 1108 (No. 88-572, 1993) (citation omitted).
See Davey Tree , 25 BNA OSHC
at
1934.
See generally, Gen. Motors, Delco Chassis Div. ,
17 BNA OSHC 1217, 1220 (No. 91-2973, 1995) (consolidated) (effect must be given to every clause and word in defining a standard’s application),
aff’d , 89 F.3d 313 (6th Cir. 1996). Once nebulous, definitions
become evident when words are placed in context.

See American Federation of Govt. Employees, Local 2782 v. Fed. Labor Relations Authority,
803 F.2d 737, 740 (D.C. Cir. 1986).

As there is no legislative history suggesting that Congress intended the word “assembly” to mean anything other than its ordinary meaning, its plain text guides. The plain text of the standard supports the Secretary’s interpretation that the
activities undertaken by Midwest’s employees on December 18, 2018 ,
constitute
“assembly.” The Secretary
points out the
Merriam-Webster Dictionary
provides
“assembly” means the “fitting together of manufactured parts into a completed machine , ”
(Sec’y
Br. at
1 4). The Secretary’s interpretation that Midwest’s actions
constitute assembly as covered by
Subpart CC of the Occupational Safety and Health Standards in Part 1926
is reasonable and entitled to deference. See CF&I , 499 U.S. at 150-51.

The activities
carried out by Midwest’s crew on December 18, 2018, are consistent with the afore-mentioned definition of “assembly.” The crew had begun the assembly of the Tadano mobile crane, using
outriggers, counterweights, an
assist crane, and additional sections of jib, with the objective of fitting together the manufactured jib parts into a completed crane that would ultimately allow them to work on the cell tower. Midwest’s crew had set aside the entire first day to assemble the crane and install various components and sections
onto
the crane (Tr.
58,
62-63, 64-66, 127). The Tadano
mobile crane
required assembly at the worksite
for Midwest to
complete
work on the cell tower
(Tr. 58-62). Specifically, Midwest’s crew had added outrigger pads and counterweights from
a completely separate
vehicle (Tr. 64-66, 127), with the intent to add additional sections of jib (Tr. 58-62).

Dennis Eckstine, 3
the Secretary’s expert, testified
“[a]ssembly is a complex process that has a lot of steps, takes additional” and
a “considerable amount of time to set it up, attaching…” and “assembling the boom sections to the jib or to the crane, to put it together. It requires things like adding counterweights” and “assembling sections” (Tr. 220). Eckstine further clarified
that “set-up” is the process followed to use an already-assembled crane (Tr. 219). He explained that
set-up
of an already-assembled crane would consist of a simple crane, without a jib, which could be used for work immediately after the crane has been leveled and the outriggers deployed (Tr. 219-220). In contrast, Midwest’s crew used the Tadano ATF 220G-5, all-terrain hydro-mobile crane, which is not a fully assembled crane
and required the attachment of counterweights and additional sections (Tr. 219-221). Midwest’s crew was in the
process
of assembling the Tadano before they could begin any work on the cell tower
(Tr. 338-339). Midwest’s crew
set aside
the entire first workday to
assemble the Tadano. They were planning to add sections which would be
pinned to the crane.
The assembly
would
also involve the use of the assist crane (Tr.
161-162, 338-339). The record shows, and
Eckstine’s testimony
establishes
Midwest was in the process of assembling the Tadano before
R. B.
was injured (Tr. 221-222, 338-339).

Nonetheless,
Midwest
argues the crew was engaged in set-up operations and never reached the assembly phase (Resp’t Br. at 22-24).

Midwest’s
expert in crane safety, Jocko Vermillion, 4
testified
that because the crew had not yet implemented the use of an assist crane
by the time of the accident
(Tr. 436), Midwest was only
engaged in set-up (Tr.
436,
453-454).
He provided no support for this opinion. Vermillion further testified that assembly would occur at the point additional pieces
or sections are added to
the length of the jib (Tr. 454). The
Court
is not persuaded. The crane did not arrive at the jobsite fully assembled. Components and jib sections had to be added onsite (Tr. 220-222, 333-334, 338-339). Midwest’s crew was involved in the process of assembling the Tadano and would have continued to add more sections of jib to the crane but for the jib falling on
R. B.
and causing serious injuries.

In support of its position,
Midwest
relies on an OSHA
October 15, 2014,
Letter of
Interpretation from James G. Maddux, Director, Directorate of Construction to Charlie Bird (Resp’t Br. at 23;
Ex. R-10).

The
interpretation letter addresses
the types of
activities
which
constitute set-up
and those which constitute
assembly/disassembly (Ex. R-10). In describing assembly
the letter provides
“simple assembly of the boom...” or the addition of “counterweights or attachments, attaching outriggers/stabilizers, or using an assist crane to position the boom or jib for pinning/unpinning” are elements of assembly. The interpretation letter describes
set-up
as
the deployment of an already assembled crane, and
“includes activities like deploying and pinning outriggers, leveling the equipment, or unfolding and pinning a boom or swing-away jib”
(Ex. R-10).

Midwest’s activities regarding the crane fall squarely within the assembly description set forth in the June 15, 2014,
Letter of Interpretation. The Tadano was not an already assembled crane. On December 18, 2018, Midwest’s employees
were engaged in adding counterweights to
the Tadano (setting outrigger pads down and extending the outriggers onto the pads,
and pinning/unpinning the jib)
(Tr. 65-66, 127, 333,
372-373).

But
for the
injury to
R. B.,
Midwest
would have continued to assemble
the Tadano crane
by
adding an additional 82 feet of jib to the Tadano with an assist crane (Tr. 338-339).

As recognized by the Supreme Court in
FDA v. Brown & Williamson Tobacco Corp. , and further expounded upon by the Commission in
Secretary of Labor v. TNT Crane & Rigging, Inc ., ( “a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 132 (2000);
Secretary of Labor v. TNT Crane & Rigging, Inc ., No.
16-1587
2020 WL 1657789 (O.S.H.R.C.,
Mar. 27, 2020 ) .

In
TNT Crane & Rigging, Inc.,
the Commission held that a careful examination of the text and structure of the crane standard clearly indicated that the meaning of “disassembly” was intended to include antecedent tasks even before crane components are physically disassembled. Secretary of Labor v. TNT Crane & Rigging, Inc ., No. 16-1587 2020 WL 1657789 (O.S.H.R.C., Mar. 27, 2020). Similarly, when scrutinizing the text and structure of the crane standard at issue here, it is clear that “assembly” was meant to include preliminary tasks
prior to the physical addition of crane sections. See FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 132 (2000). That
R. B.
was
injured
and the
initial
assembly process
stopped,
does not
change the nature of the
assembly
activities being performed. Midwest’s argument
its crew was engaged in set-up operations and not assembly/disassembly
is
contrary
to the plain meaning of the applicable standard. Midwest’s crew was involved in the process of assembling the Tadano and would have continued
the assembly had the jib
not fallen.

Item 1 a : Alleged Serious Violation of §
1926.1403(a)

Section 1926.1403(a)

Section 1926.1403(a) provides:

Assembly/Disassembly. When assembling or disassembling equipment (or attachments), the employer must comply with all applicable manufacturer prohibitions and must comply with either:

(a) Manufacturer procedures applicable to assembly and disassembly…

Alleged Violation Description

I tem 1a alleges:

On or about December 18, 2018, located at cell tower site ATT W044 at 9539 Long Run Road, in Graysville, Ohio, employees were assembling a Tadano, ATF 220G-5, all-terrain hydro mobile crane for the installation of sector antennas on a 285 foot tower. The employer did not follow the manufacturer’s instructions or develop instructions under (b) of this section for the assembly of the jib onto the main boom of the crane, thereby exposing the employees to a struck-by and/or caught-between hazard.

(1) Applicability of the Cited Standard

As
set forth above, Subpart CC of the Occupational Safety and Health Standards in Part 1926 addresses cranes and derricks used in construction. Section 1926.1400
defines
the scope of the standard and more specifically states that the standard is applicable to “mobile cranes (such as wheel-mounted, rough-terrain, all-terrain, commercial truck-mounted, and boom truck cranes).” Based on the parties’ stipulation that
on December 18, 2018, Midwest’s employees were working with a Tadano ATF 200G-5 all-terrain hydro mobile crane, the Tadano mobile crane is within the defined scope of this subpart.

Section
1926.1403
of Subpart CC
requires
assembly/disassembly of cranes and derricks
be
pursuant to the manufacturer’s procedures. As
set forth
above, Midwest’s crew was engaged in the assembly of the Tadano crane. The assembly of the Tadano on December 18, 2018,
and subsequent serious injury to crew member
R. B.
is the exact scenario contemplated by § 1926.1403(a).

The Tadano manufacturer provided procedures which require the use of a strap during assembly. Section 1926.1403(a) applies.

(2) Compliance with the Terms of the Cited Standard

The record reveals that Midwest
failed to comply with
Tadano manufacturer’s
procedures pertaining to the Tadano, ATF 220G-5, all-terrain hydro mobile crane in violation of § 1926.1403(a).
Midwest contends
it
complied with all the material terms of the Tadano Manual applicable to assembly/disassembly. It
asserts
the use of a tag
line constitutes a similar device as called for in the Manual (Resp’t Br. at 12-15).

The Tadano
Manual requires
the use of a strap to hold
the jib in place (Tr. 137-138, 225; Exs. C-5, C-5A). The strap holds the jib in place as a safety precaution in case a procedural step is missed in the assembly process (Tr. 137-138, 225-226, 393). Rogers testified that the
manufacturer’s procedure is to use the strap for safety so that it does not swing away during the assembly process (Tr. 392-393).

Midwest admits it did not use
a strap (Tr. 138; Ex. C-2). Midwest also
admits it did not have a strap for this
purpose (Tr. 137-138, 225; Exs. C-2, C-5, C-5A). Instead,
it
used, as an alternative, a
tag
line
which it contends is
an acceptable
similar device
to the strap
in the
Tadano
Manual (Resp’t Br. at 12-15). The evidence does not support this contention. The tag line
does not serve the same purpose as the strap required by the manufacturer. The 20-foot tag line
was used by Midwest
to shift and negotiate the jib into place
and provided
no safety
protection to workers (Tr.
66-68,
137-138, 225, 310, 376; Exs. C-5, C-5A). The strap required by the manufacturer provides stability and safety.

The Tadano
Manual
also
requires
the crane operator confirm the pivot pin is in place before swinging the jib (Tr. 223-224, 252;
Ex. C-11). This
requirement is
found not only in the manual
but
is also
on the several decals attached to the Tadano
crane (Tr. 223-226; Ex. C-11). Rogers testified
it was his job to verify that the pivot pin was in place and functioning properly (Tr. 394). He
contends he confirmed it was in place on
three
separate occasions (Tr.
385-386). If
the pivot pin had been in place, however, the jib would not have been dislodged and fallen.
The record does not
reflect why the pin was not in place 5 . Rogers’s testimony that he inspected the pin’s location lacks credibility and
appears provided to absolve him of any responsibility.

The evidence adduced at trial shows
Midwest did not follow the
Tadano Manual procedures
regarding the use of the strap and
did not ensure
the pivot pin was in place. Therefore,
the terms of the standard were violated.

(3) Access to the Violative Condition

The Secretary bears the burden of proving employee exposure to the violative conditions. Fabricated Metal Products, Inc. , 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations and footnotes omitted).

The Commission has long held the test for hazard exposure requires the
Secretary to “show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” Delek Ref., Ltd. , 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015) ( citing id. ).
See also Rockwell Intl. Corp. , 9 BNA OSHC 1092 (No. 12470, 1980);
Gilles & Cotting , 3 BNA OSHC 2002 (No. 504, 1976). 6

The zone of danger is defined as the “area surrounding the violative condition that presents the danger to employees.”

Boh Bros. Constr . Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013) ( citing RGM Constr. Co. , 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of danger is determined by the hazard presented by the violative condition and is typically the area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent. RGM Construction , Co., 17 BNA OSHC at 1234;
Gilles &
Cotting , Inc ., 3 BNA OSHC
at
2003.

Midwest’s employee,
R. B. , was
actually
exposed to
the
hazardous condition while assembling the Tadano crane
when Midwest failed to follow the manufacturer’s manual
regarding the use of the strap and appropriate removal of the pivot pin, resulting in the 3,400 pound jib falling on him
(Tr. 137-138, 223-225, 252; Exs. C-5, C-5A, C-11). As a result,
R. B.

sustained
severe injuries . By failing to use the strap and by failing to confirm the placement of the pin, it was
reasonabl y
predictab le that employees assembling the crane would be in the zone of danger. Access
to the violative conditions
is established .

(4) Knowledge of the Violative Conditions

Respondent’s
knowledge of the violation may be established by showing the employer knew, or with reasonable diligence could have known of the violative condition. 29 U.S.C. § 666(k) ;
Nat’l Eng’g & Contracting Co. v. Occupational Safety & Health Admin,
928 F.2d 762, 767 (6th Cir. 1991). An employer’s awareness of the violation may be shown through actual or constructive knowledge of
the
violation. In order to
establish constructive knowledge, an employer must fail to exercise reasonable diligence in discovering the noncomplying condition. Precision Concrete Constr. ,
19 BNA OSHC 1404, 1407 (No. 99-0707, 2001) . Whether an
employer was reasonably diligent rests on a variety of factors, “including the employer's obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.”
Precision Concrete Constr. , 19 BNA OSHC at 1407;
See Pride Oil Well Serv. , 15 BNA OSHC 1809, 1814 (No. 87-692, 1992).

Furthermore, the actual or constructive knowledge of a supervisor may
be imputed to the employer.

Danis-Shook Joint Venture XXV , 319 F.3d 805 (6th Cir. 2003);
Regina Constr. Co. , 15 BNA OSHC 1044, 1046 (No. 87-1309, 1991). The Sixth Circuit has long held that knowledge is imputable. Danis-Shook ,
id . In
Danis-Shook , the Sixth Circuit held in a case involving supervisory misconduct “knowledge of a supervisor may be imputed to the employer. Because Wagner was a foreman and knew of his own failure to wear personal protective equipment, this failure may be imputed to Danis-Shook.” Id.

In
order to
prove knowledge, the Secretary can show
a supervisor had either actual or constructive knowledge of the violation and such knowledge is generally imputed to the employer. An employee who has been delegated authority over another employee, even if only temporarily,
is considered to be
a supervisor for purposes of imputing knowledge to an employer. American Engineering & Development Corp ., 23 BNA OSHC 2093, 2012 (No. 10-0359, 2012);
Diamond Installations, Inc ., 21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006);
Tampa Shipyards, Inc. , 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992).

Midwest contends the Secretary cannot establish knowledge as
Rogers did not know nor could have
known
with reasonable diligence that the pivot pin was disengaged (Resp’t Br. at 22). The Court disagrees.
Midwest had actual knowledge of the violation through its A/D director Rogers, who had authority over every employee on the work site (Tr. 371). The Tadano Manual and relevant safety decals require there be a strap and pivot pin holding the jib in place (Tr. 137-138, 225; Exs. C-5, C-5A). Midwest admits it did not have a strap to hold the jib in place (Tr. 138; Ex. C-2). Rogers testified that the manufacturer’s procedure is to use the strap for safety so that it does not swing away during the assembly process (Tr. 392-393). Instead,
Midwest
used a tag line to swing the jib into place. Rogers was aware no strap was available and observed
R. B.
utilizing the tag line.

Rogers
also
testified
it was his job to verify that the pivot pin was in place and functioning
properly (Tr. 394). Although it was his responsibility to ensure the pivot pin was in place, the
Court does not find
Rogers’s testimony credible he
confirmed
the pivot pin was in
place
before swinging the jib. Rogers knew or should have known that the pin was not in place.
The record shows Rogers knew the strap was intended as a safety device and
he
knew there was no strap present at the worksite (Tr. 390-391, 394; Ex. C-2). Actual knowledge is established when a supervisor directly engages in or sees a subordinate’s misconduct.
See, e.g., Secretary of Labor v. Kansas Power & Light Co.,
5 BNA OSHC 1202, at p.
3 (No. 11015, 1977) (holding because the supervisor directly saw the violative conduct without stating any objection, “his knowledge and approval of the work methods employed will be imputed to the respondent”).

Knowledge of the violative condition is established. The Secretary has proven all
elements of his prima facie case.

Item 1 b : Alleged Serious Violation of §
1926.1404(b)

Section
1926.1404(b)

Section 1926.1404(b) provides:

(b) Knowledge of procedures. The A/D director must understand the applicable assembly/disassembly procedures.

Alleged Violation Description

Item 1 b
alleges:

On or about December 18, 2018, located at cell tower site ATT W044 at 9539 Long Run Road, in Graysville, Ohio, employees were assembling a Tadano, ATF 220G-5, all-terrain hydro mobile crane for the installation of sector antennas on a 285 foot tower . The A/D director did not understand the applicable assembly procedures to include securing the jib to the superstructure,
thereby exposing the employees to a struck-by and/or caught-between hazard.

(1) Applicability of the Cited Standard

The Tadano mobile crane is covered by
Subpart CC of the Occupational Safety and Health Standards in Part 1926.

Section 1926.1404 applies to all assembly/disassembly operations of cranes and derricks. As
shown
above, Midwest’s crew,
supervised by
A/D director
Rogers
was engaged in the assembly of the Tadano crane
(Tr. 226, 270). The A/D director must
understand
the assembly and disassembly procedures
as provided by §
1926.1404(b). Section
1926.1404(b)
is applicable to the work being performed by the crew supervised by Rogers.

(2) Compliance with the Terms of the Cited Standard

Rogers
testified he was aware of
the manufacturer’s strap requirement (Tr. 390-391,394)
and that it
was intended as a safety device (Tr.
390-391,
394). He was also aware
there was no strap present at the worksite
and that they used a tag line instead. Rogers
testified use of the tag line was an adequate substitute for the strap.
The tag line was used to swing the jib.

It was not
used as
a safety device
to safely hold the jib in place. His testimony that the tag line, used in the manner they used it served the same purpose demonstrates his lack of understanding of the Tadano Manual requirements.
(Tr. 390-391; Ex. C-2). Rogers’s failure to understand
and follow the
Tadano Manual requirements
resulted in
the jib becoming
dislodged and falling
(Tr. 223-224).

A/D
director Rogers
testified the manufacturer’s procedure is to use the strap for safety so that it does not swing away during the assembly process (Tr. 392-393). Significantly,
he further testified
he had never used a
strap as required by the manual and
there was “no need to put a strap on the jib because it’s really worthless” (Tr. 390-391). The Court finds
Mr.
Rogers’s
failure to acknowledge or implement the procedures
described in
the Tadano manual
demonstrates a lack of understanding of the applicable assembly/disassembly procedures.
A/D director Rogers’s failure to understand and adhere to the proper assembly/disassembly procedures pertaining to the Tadano, ATF 220G-5, all-terrain hydro mobile crane constitutes
a violation of § 1926.1404(b). The Secretary has established the terms of the standard were violated regarding
Roger’s lack of understanding of the manufacturer’s procedures regarding the use of the strap.

(3) Access to the Violative Condition

Midwest’s employee,
R. B. , was
actually
exposed
to
the improperly secured jib
while assembling the
Tadano crane
(Tr. 137-138, 223-225, 252; Exs. C-5, C-5A, C-11). Access to the violative condition is established.

(4) Knowledge of the Violative Conditions

The Court finds Midwest had actual knowledge. Actual knowledge is established when a supervisor directly engages in or sees a subordinate’s misconduct.
See, e.g., Secretary of Labor v. Kansas Power & Light Co.,
5 BNA OSHC 1202, at p.
3 (No. 11015, 1977) (holding because the supervisor directly saw the violative conduct without stating any objection, “his knowledge and approval of the work methods employed will be imputed to the respondent”).
The record shows that Rogers knew about the manufacturer’s strap requirement (Tr. 390-391,394), knew the strap was intended as a safety device (Tr. 394), and knew there was no strap present at the worksite
when he engaged in the violative activity
(Tr. 390-391; Ex. C-2, RFA No. 13). He
had authority over the employee injured by the falling jib and therefore is a supervisor for purposes of imputing knowledge to
Midwest.

Knowledge of the violative condition is established. The Secretary has proven all
elements of his prima facie case
regarding Rogers’s lack of understanding of the manufacturer’s requirements for the strap . 7

Item 2 a: Alleged Serious Violation of §
1926.1404(d ) (1)

Section
1926.1404(d)(1)

Section
1926.1404(d)(1)
provides:

(d) Crew instructions. (1) Before commencing assembly/disassembly operations, the A/D director must ensure that the crew members understand
all of
the following:

(i) Their tasks.

(ii) The hazards associated with their tasks.

(iii) The hazardous positions/locations that they need to avoid.

Alleged Violation Description

Item 2a alleges:

On or about December 18, 2018, located at cell tower site ATT W044 at 9539 Long Run Road, in Graysville, Ohio, employees were assembling a Tadano, ATF 220G-5, all-terrain hydro mobile crane for the installation of sector antennas on a 285 foot tower. The employer did not ensure that crew members understood the tasks, the hazards associated with their tasks, and the hazardous positions/locations that they need to avoid when mounting the jib onto the main boom of the crane, thereby exposing the employees to a struck-by and/or caught-between hazard.

(1) Applicability of the Cited Standard

As set forth in the applicability section above for Item 1(a), the standard is applicable. The parties stipulated that on December 18, 2018, Midwest’s employees were working with a Tadano ATF 200G-5 all-terrain hydro mobile crane (Tr. 27). Mobile
cranes
are specifically
defined and covered in Subpart CC of the Occupational Safety and Health Standards in Part 1926. Section 1926.1404
applies to all assembly/disassembly operations. Midwest’s crew was engaged in the
assembly of the Tadano crane on December 18, 2018.

(2) Compliance with the Terms of the Cited Standard

Midwest’s crew lacked a clear understanding of their tasks and potential hazards while assembling the Tadano crane
in violation of
§ 1926.1404(d)(1).

Nonetheless,
Midwest argues
the Secretary failed to show
it did not comply with
the terms of the cited standard. Midwest
asserts it
complied with all the material terms of the Tadano Manual applicable to assembly/disassembly, and
there is no evidence in the record that the crew did not understand their tasks, the hazards, or the unsafe locations at the worksite
(Resp’t Br. at
19-22). The
Court
disagrees.

A/D
director
Rogers
was responsible for ensuring
his crew members fully understood their tasks, the hazards associated with those tasks, and the hazardous locations they needed to avoid. See
29 C.F.R. 1926.1404(d)(1).

The evidence shows that he did not. Before leaving for the Graysville
worksite on December 18, 2018, Rogers did not discuss the hazards associated with the work to be performed that day (Tr. 53). Nor did he do so at
the laydown site
(Tr. 56). It was not until Rogers’s arrival at the Graysville worksite that the
three
employees formulated a plan as to how they would move forward with the project (Tr. 331). This plan simply consisted of
pointing out
the unevenness of the ground,
trees,
and
a fence
(Tr. 331-332). Rogers testified he did not discuss the tasks that were going to be performed that day (Tr. 331). Hosler
testified that before beginning to move the jib and assemble the Tadano crane, the crew only discussed where the fence and trees were located (Tr. 340).

Rogers failed to inform the crew of their tasks, the hazards associated with the assembly process, or where the crew needed to be to stay out of harm’s way (Tr. 331-332, 340, 396). No evidence was adduced at the hearing to show the employees understood their tasks, the hazards associated with them or the hazardous locations they needed to avoid.

CSHO Marcinko testified
Midwest’s crew should have known their roles, their specific tasks,
and what they needed to do if there was any change in the work plan (Tr. 142-145). When the jib got stuck and Rogers told
R. B.
to use the tag line, no further instructions were provided, nor was it confirmed he understood. R.
B. was an apprentice. He had only
been with the company for approximately 7 months (Tr. 49, 372). A
clear indication R. B. did not understand the hazards is that he ran towards the falling jib which weighed 3,400 pounds
in an effort to
stop it from falling
(Tr. 336) 8 . As a result, he was
crushed and severely injured by the jib when it fell on him
(Tr.
24-27, 73-76).

Marcinko further testified that when
Hosler
was instructed to aid R.
B. with the tag line, the crew should have all agreed to stop work and determine a new path forward to complete their modified tasks
(Tr.
142-145). The crew did not stop working or reassess the situation under the now changed circumstances (Tr. 334-335). Neither
Hosler nor Rogers instructed R.
B. to avoid
the hazardous position he was in when the jib fell (Tr. 347). A/D
director Rogers failed to ensure his crew members understood their tasks or the hazards associated with these tasks. Therefore, as
Midwest’s crew lacked a clear understanding of their tasks and potential hazards while assembling the Tadano crane, violation of the terms of
§ 1926.1404(d)(1)
is established.

(3) Access to the Violative Condition

Midwest’s injured employee
was
actually
exposed
to
the
hazardous condition while assembling the
Tadano crane
(Tr. 331-332, 340, 396). The Secretary has met his
burden in establishing access to the violative conditions.

(4) Knowledge of the Violative Conditions

Midwest had actual knowledge of the violation through A/D
director Rogers
who
had control of the entire crew and directly engaged in the violative conduct (Tr. 371). At no point on December 18, 2018, were Midwest’s employees fully informed
of
the tasks they were to perform, the hazards associated with the assembly process, or where they needed to position themselves to avoid hazards (Tr. 331-332, 340, 396). Nor was there evidence R. B. understood his tasks and the hazards associated with them. As a supervisor for Midwest who engaged in the violative conduct and had
authority over the employee injured by the falling jib, Rogers’s knowledge is
imputed
to Midwest.

Knowledge of the violative condition is established. The Secretary has proven all
elements of his prima facie case.

Item 2b : Alleged Serious Violation of §
1926.1400(f )

Section
1926.1400(f)

Section
1926.1400(f)
provides:

(f) Where provisions of this standard direct an operator, crewmember, or other employee to take certain actions, the employer must establish, effectively communicate to the relevant persons, and enforce, work rules to ensure compliance with such provisions.

Alleged Violation Description

Item 2b alleges:

On or about December 18, 2018, located at cell tower site ATT W044 at 9539 Long Run Road, in Graysville, Ohio, employees were assembling a Tadano, ATF 220G-5, all-terrain hydro mobile crane for the installation of sector antennas on a 285 foot tower. The employer did not ensure that work rules were effectively communicated to crew members when performing the tasks of mounting the jib onto the main boom of the crane, thereby exposing the employees to a struck-by and/or caught-between hazard.

(1) Applicability of the Cited Standard

As
discussed above, The Tadano is
a mobile crane, and therefore
is
covered in Subpart CC of the Occupational Safety and Health Standards in Part 1926, § 1926.1400, which provides that the standard is applicable to mobile cranes. The A/D director provided direction to the crew to use the tag line to move the jib which was stuck. The standard found at §
1926.1400(f)
is applicable.

(2) Compliance with the Terms of the Cited Standard

The only rules adduced at the hearing were those required by
the Tadano Manual
and safety decals. Midwest did not have, enforce, or effectively communicate any
work rules at the Graysville
worksite
in violation of
§ 1926.1400(f)
(Tr. 155-158).

Midwest
contends
it reviewed and communicated
work rules,
tasks, hazards, and unsafe locations to its crew on various occasions (Resp’t Br. at
20-22). The record does not support this contention. R. B.
did not know what to do when the jib started falling. Instead of moving away from it, he ran towards it. The record fails to demonstrate
R. B.
was instructed
on
what to do when a jib
falls.

Midwest did not have, enforce, or effectively communicate any work rules at the Graysville worksite (Tr. 155-158, 230-231). It
failed to effectively communicate or enforce any rules pertaining to the
crew’s
tasks, the hazards associated with the assembly process, or where the crew needed to be to
avoid any potential hazards
(Tr.
155-158, 230-231,
331-332, 340, 396).

Violation of the terms of
§ 1926.1400(f)
is established.

(3) Access to the Violative Condition

Midwest’s employee, R.
B., was directly exposed to a hazardous condition
while assembling the Tadano crane when
Midwest failed to have, enforce, or effectively communicate any work rules (Tr. 155-158, 230-231). T he Secretary has met
hi s burden in establishing access to the violative conditions.

(4) Knowledge of the Violative Conditions

Midwest had actual knowledge of the violation through its
supervisor, A/D
director Rogers ,
who
was in charge of
every employee on the work site (Tr. 371).
At no point on December 18, 2018, were Midwest’s employees fully informed as to the tasks they were to perform, the hazards associated with the assembly process, or where they needed to position themselves to avoid hazards (Tr. 331-332, 340, 396). A/D
Rogers
neither had, enforced, nor
effectively communicated
any work rules
to
the
employees
at the
worksite (Tr. 155-158, 230-231). As a supervisor for Midwest, who engaged in the violative conduct and had authority over
the injured employee,
A/D
Rogers’s knowledge is imputed to Midwest.

Knowledge
of the violative condition is
therefore
established. The Secretary has proven all
elements of his prima facie case.

Characterization of the Violation s

The Secretary characterized the violation s
of
the standards found at § §
1926.1403(a), 1926.1404(b), 1926.1404(d)(1),
and
1926.1400(f)
as serious.

A serious violation is committed where both a substantial probability of death or serious physical harm could have resulted from the violative condition and the employer knew, or with reasonable diligence could have known of the said condition. 29 U.S.C. § 666(k);
Nat’l Eng’g & Contracting Co.,
928 F.2d 762, 767 (6th Cir. 1991). CSHO
Marcinko
testified to the hi gh severity associated with these
violative condition s
(Tr. 152-159 ). The parties
stipulated the employee sustained
s erious injuries
which were
properly characterized as serious (Tr. 24-27). The injured employee testified he sustained several broken
and fractured
bones, including a broken neck, back ,
ribs, femur and
pelvis, a pubic bone fracture, fractured vertebrae, and fractured ribs (Tr. 73-76). He further testified he had sustained a traumatic brain injury, lacerated kidney, hernia, and nerve damage (Tr. 73-76). As of the hearing,
R. B.
was not able to return to work because of his injuries.

The violations were
properly characterized as serious.

Employee Misconduct

Midwest
raised , but failed to establish, the affirmative defense of employee misconduct .
The burden is on Midwest to prove the elements of employee misconduct. To establish the affirmative defense of unpreventable employee misconduct, the employer must prove: "(1) that it has established work rules designed to prevent the violation; (2) that it adequately communicated these rules to its employees; (3) that it has taken steps to discover violations; and (4) that it has effectively enforced the rules when violations have been discovered."
P. Gioioso & Sons, Inc. v. Occupational Safety and Health Review Comm’n , 115 F.3d 100 (1st Cir. 1997);
Valdak v. OSHRC , 73 F.3d 1466 (8th Cir. 1996);
Precast Servs., Inc. , 17 BNA OSHC 1454, 1455, (No. 93-2971, 1995)
aff'd , 106 F.3d 401 (6th Cir. 1997); Hosp. Mgmt., Inc., d/b/a Executive Inn , No. 96-1478, 1997 WL 185350 (O.S.H.R.C.A.L.J., Apr. 10, 1997), citing
Nooter Constr. Co. , 16 BNA OSHC 1572, 1578 (No. 91-237, 1996).

The record reveals Midwest did not have, enforce, or effectively communicate any work rules at the Graysville
worksite (Tr. 155-158, 230-231). It
has not identified any specific rule, designed to prevent the alleged violations
related to the Graysville
worksite. Nor has
Midwest shown it effectively enforced any rules when the alleged violations occurred. It
did not discipline any
crew member
as a result of
the December 18, 2018,
accident (Tr. 302-303).

A s Midwest has not met its burden in
establish ing
any of the elements of the
above-mentioned
affirmative defense , th e
Court
finds Midwest’s employee misconduct defense fails .

PENALTY DETERMINATION

Pursuant to Section 666(j) of the Act, the Commission is granted the authority to assess civil penalties for the violation of citations. 29 U.S.C. § 666(j). In assessing penalties,
the Act requires that due consideration be given to the employer's size, the gravity of the violation, the good faith of the employer, and any prior history of violations. 29 U.S.C. § 666(j) . These factors are not necessarily accorded equal weight. J.A. Jones Constr. , 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) ( citation omitted ). When applying the penalty assessment factors, the Commission need not accord each one equal weight. See, e.g. ,
Astra Pharm. Prods., Inc. , 10 BNA OSHC 2070, 2071 (No. 78-6247, 1982);
Orion , 18 BNA OSHC at 1867 (giving less weight to the size and history factors). Generally ,
the gravity of the violation is afforded greater weight in assessing an appropriate penalty. Trinity Indus. , 15 OSHC 1481, 1483, (1992). A violation’s gravity is
determined by weighing the number of employees exposed, the duration of said exposure, preventative measures taken against injury, and the possibility that an injury would occur. J. A. Jones Constr. Co. , 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993);
Kus-Tum Builders, Inc. , 10 BNA OSHC 1128, 1132 (No. 76-2644, 1981).

CSHO
Matthew Marcinko testified how the
penalties for the citation items were
calculated and proposed (Tr.
152-159). In evaluating grouped violations, items 1a and 1b, the gravity of the violations was
assessed as high severity because of the high likelihood of permanent disability or death from a
3,400 pound
jib striking an employee (Tr. 152, 154).

Probability was assessed as greater
due to
Midwest’s failure to use a strap or
other means to protect
its employees (Tr. 152, 154). There was no reduction for good faith because of the severe nature of the violation, the fact that a serious injury
actually occurred,
and Midwest’s lack of a more robust safety and health program (Tr. 153-154). The gravity-based penalty was not increased because Midwest had no
history
of previous violations
(Tr. 153-154). However, the
gravity-based penalty was reduced by
30%
due to Midwest having only
25 employees (Tr. 153, 256).

In evaluating grouped violations, items 2a and 2b, the gravity of the violations
were
also
assessed as high severity because of the high likelihood of permanent disability or death from a 3,400 pound jib striking an employee (Tr.
155, 158-159).

Probability was assessed as
lesser
due to
Midwes t retaining
experienced crane operators on the worksite
(Tr. 155, 158-159). There was no reduction for good faith
because of
the fact that
a serious injury
did indeed occur,
and Midwest
lacked
a
more detailed
safety and health program (Tr. 153-155, 158-159). The gravity-based penalty was not increased because
Midwest had no history of previous violations
(Tr. 153-155, 158-159). However, as stated above, the gravity-based penalty was reduced by
30%
due to Midwest’s size of only having 25 employees (Tr. 153, 256).

For serious Citation 1, Item s
1 a
and 1b ,
the Secretary proposed, after adjustments,
a grouped penalty of $9,282 . For
serious Citation 1, Items 2a and 2b ,
the Secretary proposed, after adjustments, a grouped penalty of $6,630. Upon due consideration of section 666 (j) of the Act, with regard given to the enumerated penalty calculation factors, the
Court
finds the original penalt ies
proposed
by the Secretary appropriate, and
assesses
grouped
penalties in the amount of $9,282 for Items 1a and 2b and $6,630 for Items 2a and 2b.

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. All proposed findings of fact and conclusions of law inconsistent with this decision are hereby denied.

ORDER

Based upon the foregoing decision, it is ORDERED that:

1. Items
   1a
   and 1b of the Citation, alleging
   serious
   violations of
   § 1926.1403(a)
   and
   §1926.1404(b),
   are
   AFFIRMED
   and
   a grouped penalty in the amount of $9,282 is assessed.

2.

Items
2a and 2b of the Citation, alleging serious violations of § 1926.1404(d)(1) and §1926.1400(f), are
AFFIRMED
and a grouped penalty in the amount of $6,630 is assessed.

SO
ORDERED.            

/s/ _________

Sharon D. Calhoun

Dated: September 11 , 2020             Administrative Law Judge, OSHRC

Washington, DC

"

1
CSHO Marcinko holds
Bachelor’s and
Master’s
degrees
in Occupational Safety and Health from Columbia Southern University (Tr. 109). He was an E-5 sergeant with the U.S. Army and a security officer for 3 years (Tr. 113). He worked for several years as a crane operator for the Army Corps of Engineers and Northwest Pipe Company (Tr. 110-111). Afterwards, CSHO Marcinko began work for OSHA, where he has been employed for over 8 years as a Safety Compliance Officer (Tr. 108). His duties consist of performing various inspections and investigations on behalf of OSHA (Tr. 108-109).

2
R. B. was very candid and testified without hesitation despite his traumatic injuries. His memory of the events leading up to the accident is solid and his ability to recall is strong. Although R. B. admits to blacking out from his injuries and suffering a traumatic brain injury (Tr. 70-71, 73-76), the Court finds his testimony honest and credible. However, his testimony regarding the distance from the laydown site to the Graysville worksite is inconsistent with the evidence, and the Court places no weight on his testimony regarding that distance (Tr. 55, 306, 396). The Court places more weight on
the
testimony in the record that the distance from the laydown site to the worksite was ¾ mile.

3
Dennis Eckstine holds both a Bachelor of Science degree in mechanical engineering from the University of Maryland and a Master of Business Administration from Shippensburg University in Pennsylvania (Tr. 200). Throughout his career he has held numerous leadership positions in the crane industry
including, chairing various international and national crane organizations (Tr.
196,
197-198; Ex. C-8 pp. at 33-37). Eckstine has
also
assisted in drafting international crane standards, maintains several professional memberships in the crane industry, and has been qualified as an expert on crane safety many times
(Tr. 199, 202, 203; Ex. C-8 pp. at 33-37). The
Court finds Eckstine’s testimony highly credible
and places more weight on it than that of the Secretary’s expert.

4
Jocko Vermillion has formalized education with crane safety from the Crane Institute of America (Tr. 427-428; Ex. R-12). Vermillion has over 10 years of experience working for OSHA in crane safety (Tr. 411). However, Vermillion has never drafted crane regulations or standards with any national or international bodies governing the crane industry (Tr. 430-431; Ex. R-12.) Aside from crane examiner and operator, Vermillion holds no memberships in the crane industry (Tr. 430; Ex. R-12). Prior to the instant matter, he
had
not previously
been qualified as a crane safety expert (Tr. 420).

5
The evidence adduced at trial fails to clarify how the pivot pin became disengaged, resulting in the jib falling. Rogers claims he visually inspected the pivot pin at both the laydown site and worksite (Tr. 368-369, 373). However, when questioned about his visual inspections Rogers merely claimed the pivot pin was engaged because “it would probably fall” off if it had not been (Tr. 368-369).
He
also testified he verified the pivot pin was engaged at the
worksite by visually inspecting it from the ground (Tr. 373-374). During his testimony regarding inspecting for the pin’s placement, Rogers appeared nervous and hesitant. His testimony on this issue lacked confidence and believability. Therefore, the Court places no weight on Roger’s testimony he inspected for the placement of the pin while onsite.

6
In
Gilles & Cotting, Inc ., the Commission rejected the “actual exposure” test, which required evidence that someone observed the violative conduct, in favor of the concept of “access”, which focuses on the possibility of exposure under the conditions. See Gilles & Cotting, Inc ., 3 BNA OSHC at 2002 (holding “that a rule of access based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure”).

7
The Tadano Manual requires the crane operator to ensure the pivot pin is in place before swinging the jib (Tr. 223-224, 252; Ex. C-11). It was Rogers’s duty to confirm that the pivot pin was in place and functioning properly before swinging the jib (Tr. 394). Rogers checked on the placement of the pivot pin on three occasions (Tr. 385-386). He testified the pin was required to be in place and was to be removed last (Tr. 362-363). The Secretary has not established a violation regarding Rogers’s understanding of the procedures regarding the pivot pin.

8
Although the Court has found R. B.’s
testimony credible,
his testimony regarding
whether he ran toward the falling jib
is
inconsistent with the evidence (Tr. 68). The Court places more
weight on
Hosler’s
eyewitness
testimony
that R.
B. ran toward the falling jib
(Tr.
336).