US Secretary of labor proved case that employer failed to ensure that crane operator was trained adequately.

Secretary of Labor v. Deep South Crane & Rigging Co., OSHRC, No. 09-0240, 8/27/12.
Key Holding: Secretary of labor proved case that employer failed to ensure that crane operator was trained adequately.
Potential Impact: Employer would be liable for violations of general duty clause and general safety and health standard.
What's Next: Employer could appeal to U.S. Court of Appeals for Fifth Circuit or D.C. Circuit.
By David Schwartz

An employer's failure to adequately train its employees led to the deaths of four workers when a crane toppled over, the Occupational Safety and Health Review Commission ruled Aug. 27, affirming a decision and $40,000 penalty from an administrative law judge (Secretary of Labor v. Deep South Crane & Rigging Co., OSHRC, No. 09-0240, 8/27/12).
The key factor in the commission's ruling was its conclusion that the employer, Deep South Crane & Rigging Co., did not properly follow the guidelines in Sec. 5-3.1.2 of the American Society of Mechanical Engineering's Safety Standard for Cableways, Cranes, Derricks, Hoists, Hooks, Jacks, and Slings, known as ASME B30.5.

The fatal accident involved a crane called the Versa 36000, which the commission describes as “one of the largest cranes in the world.” The particular crane in this case had a lifting capacity of 2,500 tons and a 420-foot long boom in the front.
On July 18, 2008, Deep South was finishing the work involved in assembling the Versa 36000. The operator put the crane in a “backwards overhaul” position, a maneuver that involved raising the boom so high that it rendered the crane unstable. The crane had been in this position for three hours when it fell over backward, killing the operator and three other employees.

General Duty, Repeat Citations
The Occupational Safety and Health Administration cited the employer for a serious violation of the general duty clause of the Occupational Safety and Health Act (29 U.S.C. 654(a)(1)) for exposing its employees to the hazard of being struck by the crane due to its failure to ensure that the operator was adequately trained.
OSHA also cited Deep South for a repeat violation of 29 C.F.R. 1926.20(b)(4), General Safety and Health Provisions, for allowing an unqualified operator to control the crane. The combined penalty for both citations was $40,000.
In the case of the first citation, the secretary of labor argued that the employer instructed the supervisor to “familiarize” the operator with the Versa 36000, an instruction that did not include a requirement that the supervisor verify the operator's qualifications.

The secretary based the citation on the requirements of ASME B30.5, which include requiring the crane operator to pass a physical exam, complete a written exam on the operation of the crane, and complete an operational test showing proficiency in handling the particular crane. The commission concluded that the evidence in this case supported the secretary's allegations that the operator was not subjected to these requirements.
Deep South claimed that having the site supervisor oversee the operator met safety requirements. However, there was no evidence that the supervisor ever determined whether the operator could operate this type of crane, either by talking with other supervisors or by testing the operator.

To prove a general duty clause violation, the commission added, the secretary must prove that the employer knew of the hazard. However, this accident occurred in Texas, which falls under the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit. That circuit requires an additional element of proof—the secretary must also show that the supervisor's misconduct was foreseeable.
The commission ruled that the secretary did show that the accident was foreseeable, based on evidence that the site manager instructed the supervisor orally to familiarize the operator with the Versa 36000, did so only once, and did so several weeks before the operator first entered the crane. These instructions were insufficient, the commission said, and did not address the requirements listed in ASME B30.5.
Turning to the second citation, 29 C.F.R. 1926.20(b)(4), the commission explained that the secretary alleged that the operator was not qualified, either through training or experience, to operate the Versa 36000.
Deep South argued that the operator was certified by the National Commission for the Certification of Crane Operators, but the review commission agreed with the judge that this certification fell short of the qualifications required by ASME B30.5 and the crane itself. Furthermore, the review commission rejected the employer's argument that the requirements in ASME B30.5 should not form the basis for evaluating its compliance, in the face of testimony from experts for both sides that the industry recognizes ASME B30.5 as the industry standard.
Another defense, that the operator was trained to use a Versa 28000, also carried no weight with the commission. The 28000 is also a large crane, with some features similar to that of the 36000, but it was not the same crane.
Finally, Deep South challenged the citation's designation as a repeat violation, since the previous case, at a site in Kansas, involved a different type of crane in different circumstances. The commission dismissed this argument because the same standard was violated in both cases, and the previous incident turned on a failure to train an operator adequately.

For More Information
The text of the commission's decision in Secretary of Labor v. Deep South Crane & Rigging Co., which includes the decision by the administrative law judge, is available at http://op.bna.com/env.nsf/r?Open=sbra-8xtv74.

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