United
States of America
OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION
100
Alabama St. S.W
Building
1924 Room 2R90
Atlanta,
GA 30303-3104
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SECRETARY
OF LABOR, Complainant, |
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|
|
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|
v. |
OSHRC Docket No. |
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Respondent. |
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DECISION AND ORDER
COUNSEL:
Michael D. Schoen, Attorney, Office of the Solicitor, U.S. Department of
Labor, Dallas, TX, for Complainant.
William Jackson Wisdom, Sylvia Ngo, Attorneys, Martin, Disiere,
Jefferson & Wisdom, L.L.P., Houston, TX, for Respondent.
JUDGE: John B. Gatto, United States
Administrative Law Judge.
I. INTRODUCTION
This enforcement action arose from a tragic accident involving an AltairStrickland
employee killed on May 11, 2016, at an ExxonMobil oil refinery in Beaumont, Texas. The Department of Labor’s Occupational Safety
and Health Administration (“OSHA”) investigated and issued[1]
a five-item citation to AltairStrickland for allegedly violating the
Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §§ 651–678,
with proposed penalties of $62,355.00.[2] After AltairStrickland timely contested the citation,
the Secretary filed a formal complaint[3]
with the Commission charging AltairStrickland with violating the Act and
seeking an order affirming the citation and proposed penalties. A bench trial was held in Houston, Texas.
There is no dispute that jurisdiction of this action is conferred upon
the Commission by section 10(c) of the Act, 29 U.S.C. § 659(c), that AltairStrickland
is an employer engaged in a business affecting commerce within the meaning of
section 3(5) of the Act, 29 U.S.C. § 652(5) (Compl. ¶¶ I-II; Answer ¶¶ I-II;
Pretrial Order, Attach. C ¶¶ I-II). Pursuant
to Commission Rule 90(a), after hearing and carefully considering all the
evidence and the arguments of counsel, the Court issues this Decision and
Order, which constitutes its final disposition of the proceedings. If any
finding is in truth a conclusion of law, or if any stated conclusion is in
truth a finding of fact, it shall be deemed so. For the reasons indicated infra, the Court VACATES the remaining citation items.
II. BACKGROUND
ExxonMobil contracted with AltairStrickland,
an industrial engineering company, to remove a heat exchanger at its refinery in Beaumont, Texas, which weighed approximately 24,000 pounds (Tr. 77, 91, 98). Hector Barron was the foreman in
charge of AltairStrickland’s crew, which consisted of two of his brothers, the
Decedent and Jorge Barron, as well as Osiel Rocha, Horacio Tovar, Jose Duran,
and Victor Buchot (Tr. 93-94). Foreman
Barron conducted a toolbox safety meeting with his crew on May 10, 2016,
between 8:00 and 8:30 p.m., and reviewed the job safety analysis (JSA) form
prepared by Jose Duran, which the crew members signed (Tr. 131-132). Christopher Laster, a safety manager for
AltairStrickland at the time of the accident, also reviewed the JSA for the May
10-11 shift (Tr. 296, 300).
At approximately 8:30 p.m., Foreman
Barron conducted a 10-minute walkthrough of the planned removal of the heat
exchanger, accompanied by the AltairStrickland crew and Exxon’s job
representative, Derek McDaniel, who signed the work permit for the task. During the walkthrough, Foreman Barron went
through the steps for unbolting and taking off the components attached to the
heat exchanger and getting it ready for the lift (Tr. 100-102).
During the walkthrough, Foreman Barron
noticed a pipe he thought might obstruct the lift. McDaniel told him the pipe would have to be
removed by the insulator crew members, who were working in another area of the
facility. McDaniel told Foreman Barron the
insulators would come by later to remove the pipe. Jose Duran rigged the heat exchanger for the
crane lift at approximately 20 minutes before midnight. He also acted as the signalman. When AltairStrickland’s crew was ready to
make the lift around midnight, the insulators still had not arrived to remove
the pipe (Tr. 41-42, 102-104, 112, 117, 217, 224).
Nonetheless, shortly after midnight
during the night shift’s “lunch” period, AltairStrickland’s work crew began
lifting the heat exchanger with a LIEBHERR TM 1500 mobile crane, which was
operated by B&G Crane Service employee Richard Sicard (Tr. 28, 32). Duran signaled by radio to Sicard to
begin the lift. After 5 to 10 minutes,
when the load was lifted approximately 2 to 3 feet above the ground, Duran
signaled to Sicard to “dog the crane movement off” due to obstacles (Tr. 43). According to Sicard, to dog the crane movement
means “lock it down. Stop all movement.
. . When you dog it off …you stop [in]
the immediate position.” (Tr. 44.)
Duran halted the lift because an
obstruction prevented the heat exchanger from moving upward. The crew decided to move the heat exchanger
slightly to the west to clear the obstruction and then continue with the lift. Foreman Barron elected to use a “come-a-long”[4]
cable and lever (handle) to move the heat exchanger, referred to as bull
rigging,[5]
clear of the obstruction (Tr. 179-180).
According to Sicard, “as you crank or cinch that handle, it tightens up
the cable, the rigging. It actually
applies pressure to that. That bull
rigging system was attached to the bottom of the heat exchanger and then
anchored to another one of the pipes in the area on the platform where they
were working.” (Tr. 12-13.)
Foreman Barron was operating the come-a-long, when his brother, the
Decedent, volunteered to take over. Using
the come-a-long, the heat exchanger was moved a few inches to the west and
cleared the obstruction. The Decedent
began to unhook the come-a-long from the heat exchanger when suddenly the crew
members heard a loud noise and looked around for the source. They saw that a pipe, running parallel to the
north side of the heat exchanger, had broken off, striking and injuring Foreman
Barron as it fell, and landing on the Decedent (Tr. 179-183, 187-190, 337-338). Emergency services were called, and medics
arrived and attempted to treat the Decedent but he died a short time later. (Ex.
C-2, p. 6.)
III. ANALYSIS
The fundamental objective of the Act is to prevent occupational deaths
and serious injuries. Whirlpool Corp. v.
Marshall, 445 U.S. 1, 11 (1980). However, in the Fifth Circuit, the
jurisdiction in which this case arises,[6] “[a]s has often been said, OSHA does not
impose strict liability on an employer but rather focuses liability where the
harm can in fact be prevented.” Central of Ga. R.R. Co. v. OSHRC, 576
F.2d 620, 623 (5th Cir.1978). Thus, the
Act requires that employers “shall comply with occupational safety and health
standards promulgated under this chapter.” Byrd
Telcom, Inc. v. Occupational Safety & Health Review Comm'n, 657 F.
App'x 312, 315 (5th Cir. 2016) (quoting 29 U.S.C. § 654(a)(2)). The Commission serves as a “neutral arbiter”
between the Secretary and cited employers. Cuyahoga
Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985). Thus,
Congress vested the Commission with the “adjudicatory powers typically
exercised by a court in the agency-review context.” Martin v. Occupational Safety and Health Review Comm'n (CF&I Steel
Corp.), 499 U.S. 144, 151, 154 (1991).
As an initial matter, the Secretary and AltairStrickland
disagree on whether the heat exchanger struck the pipe at issue, causing it to
fall. However, the Court concludes
resolution of this disagreement is not dispositive of any issues before the
Court since the four items at issue relate to alleged violations of
safety training and rigging standards, not standards relating to crane loads
striking pipes or other structures. As the Commission has long held, “it is the hazard, not
the specific incident that resulted in injury or might have resulted in injury,
that is the relevant consideration in determining the existence of a recognized
hazard.” Associated Underwater
Servs., 24 BNA OSHC 1248, (No. 07-1851, 2012) (quoting Arcadian Corp., 20 BNA OSHC 2001, 2008 (No. 93-0628, 2004)). See also Kelly Springfield Tire Co., Inc., 10 BNA OSHC 1970, 1973 (No. 78-4555, 1982), aff'd, 729 F.2d 317 (5th Cir. 1984)); American
Wrecking Corp., 19 BNA OSHC 1703, 1707 n.4
(No. 96-1330, 2001) (consolidated) (“Determining whether the standard was violated
is not dependent on the cause of the accident.”), aff'd in part,
rev'd in part, 351 F.3d 1254 (D.C. Cir.
2003); Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2017 (No. 90-2668, 1992) (finding that the employer
may not have foreseen the precise circumstances of the accident but generally
knew the potential dangers associated with the location where its employees
were working).
The Fifth
Circuit has held “[t]o support a citation, the Secretary must show by a
preponderance of the evidence that: (1) the OSHA standard invoked applies to
the cited conditions; (2) the requirements of the standard were not met; (3)
employees were exposed to or had access to the hazardous condition; and (4) the
employer knew or should have known of the hazardous condition with the exercise
of reasonable diligence.” Jacobs Field
Servs. N. Am., Inc. v. Perez, 659 F. App'x 181, 188 (5th Cir. 2016), cert. denied sub nom. Jacobs Field Servs. N.
Am., Inc. v. Hugler, 137 S. Ct. 2257 (2017).
A. Item
1
The Secretary alleges in Item 1 that
AltairStrickland violated section 1926.21(b)(2), a safety training and
education standard, by failing to “instruct each employee in the recognition
and avoidance of unsafe conditions and the regulations applicable to his/her
environment to control or eliminate any hazards or other exposure to illness or
injury.” (Compl. Ex. A at 6 of 12). More
specifically, the Secretary asserts on
or about May 11, 2016, AltairStrickland’s “employees were not instructed in the
recognition and avoidance of unsafe conditions per company HSE site specific
execution plan, exposing employees to struck by hazards.” (Id.) The cited standard requires
the employer to “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.” 29 C.F.R. §
1926.21(b)(2).
(1) Whether the Cited Standard Applies to the Cited
Conditions
Section 1926.21(b)(2) is
found under the general
safety and health provisions of subpart C of the construction standards, which sets forth the general
requirements for training of employees engaged in construction work activities.
At the time of the fatality, AltairStrickland
was engaged in construction work activities involving the removal of a heat
exchanger at the Beaumont facility. Therefore,
the cited standard applies to the cited
conditions.
(2)
Whether the Requirements of the Cited Standard Were Not Met
The Commission has
held that section 1926.21(b)(2) “requires instructions to employees on (1) how to recognize and avoid the unsafe conditions
which they may encounter on the job, and (2) the regulations applicable to
those hazardous conditions.” Superior Custom Cabinet Co., 18 BNA OSHC 1019, 1020 (No. 94-200, 1997), aff'd
without published opinion, 158 F.3d 583 (5th Cir.
1998). However, section 1926.21(b)(2) does not
require the safety instructions “be written as
long as the safety rule is clearly and effectively communicated to employees.” Gem Indus., Inc., 17 BNA 1861, n. 5 (No.
93-1122, 1996). Item 1 focuses on one specific alleged
oversight in AltairStrickland’s safety training—it charges the company with
failing to provide safety training in bull rigging.
The Secretary argues AltairStrickland violated section
1926.21(b)(2) since Compliance Officer Gomez concluded from the employee
interviews “that none of the employees knew of the hazards associated with the
use of the ‘come-a-long’ or bull rigging and the only employee who knew about
AltairStrickland’s HSE site specific execution plan was the foreman, Hector
Barron.” (Sec’y’s Br. 2) (citing Tr. 383-88). The Secretary also asserts Foreman Barron
“did not train AltairStrickland’s crew about its HSE site specific execution
plan” and asserts Foreman Barron admitted “no training had been given on bull
rigging to AltairStrickland’s crew.” (Id.) (citing Tr.
137-41). The Secretary also asserts one
of AltairStrickland’s boilermakers “testified that there was no discussion of
using bull rigging before the lift of the heat exchanger, that he did not know
what bull rigging was before the accident, and that he never received training
from Respondent on bull rigging or AltairStrickland’s HSE site specific
execution plan.” (Id.) (citing Tr. 146, 154-59).
AltairStrickland’s
HSE site specific execution plan provides the following information on bull
rigging:
Bull Rigging
Bull rigging refers to
using mechanical methods available to relocate/reposition through lifting
techniques (rigging methods) site parts and equipment either into or out of a
designated area. The same principles
apply to bull rigging as normal rigging.
Bull rigging increases
the hazards of: line of fire, pinch
points, struck by, side loading, and overloading. Due to the increased hazards due to utilizing
bull rigging techniques a thorough ASAP [AltairStrickland Safety Analysis Plan]
will be conducted when utilizing bull rigging operations.
Bull rigging is a normal
part of operations for AS due to the type of work conducted and the space
restrictions often faced. Employees
engaged for this project have or will receive training for conducting these
types of operations. It is the
responsibility of site leadership to ensure that any employee engaged in bull
rigging has received the appropriate training and has the experience necessary
to perform the task.
(Ex. C-16; p. 18) (emphasis added).
It
is undisputed bull rigging was not addressed in the JSA discussed at the
beginning of the shift, and Foreman Barron did not stop and conduct an ASAP
once he determined the crew would use bull rigging to reposition the load (Tr. 138,
154-155). Osiel Rocha, who was working
for a different company at the time of the trial but had previously been a boilermaker
for AltairStrickland,
testified he had not been trained in bull rigging (Tr. 156-157). Thus, the issue is whether AltairStrickland violated
section 1926.21(b)(2) if it failed to train its employees in a safety rule not
found in the cited standard.
The standards
governing rigging are found in Subpart CC—Cranes and Derricks in
Construction. There is no standard
addressing bull rigging and the term is not defined or used in the construction
standards. Foreman Barron, in common
with the OSHA standards, does not regard bull rigging as requiring separate
safety rules from general rigging.
“[B]ull rigging is part of rigging.” (Tr. 136.) He considered his crew members qualified to
perform bull rigging because they had been trained in rigging safety.
Q. Who amongst your crew members do you believe
was appropriately trained and had the appropriate experience to perform bull
rigging?
A. All my
guys.
Q. So
what training had been provided on bull rigging?
A. -- I
don't know.
Q. You
can't recall any training for bull rigging?
A. No. I
mean, it's -- bull rigging is just like I said, part of rigging.
(Tr. 140-141.)
The
Secretary cannot establish AltairStrickland failed to instruct the crew members
in the applicable regulations, because no regulation addressing bull rigging,
as opposed to rigging, exists. Contrary
to Gomez’s testimony, OSHA does not enforce private safety plans. The Commission has held, in the context of an
excavation case, it is the applicable OSHA standard that triggers the
employer’s duty to instruct employees “regarding
the requirements of that standard,” not the employer’s safety rules.
[T]he plain
language of the cited training provision requires an employer to provide
instruction “in ... the regulations applicable to
[each employee's] work environment.” 29 C.F.R. § 1926.21(b)(2) (emphasis
added). Here, it is undisputed that the “regulation” on which training was
required is the excavation standard . . . [and] Bardav was obligated by the
training provision to instruct its employees regarding the requirements of that
standard. See O'Brien
Concrete Pumping, Inc., 18 BNA OSHC 2059, 2061 (No. 98-0471, 2000) (affirming §
1926.21(b)(2) violation where employer failed to instruct “employees about the
requirements of OSHA's regulations with regard to guarding the [concrete]
hopper's point of operation”). In this respect, the applicable regulations—in
this case, the excavation standard—trigger the duty to instruct under the cited
training provision.
Bardav,
Inc., 24 BNA OSHC 2105, 2111 (No. 10-1055, 2014).
It is the Secretary’s burden to establish AltairStrickland failed to
instruct each of the crew members in the recognition and avoidance of struck by
hazards and the applicable OSHA regulations.
The Secretary presented no evidence AltairStrickland failed to caution
the crew members about struck by hazards.
The Secretary concedes
AltairStrickland provided safety training relating to cranes, rigging, and
signaling to its employees (Tr. 384).
Its foremen hold daily toolbox talks with their crews (Tr.
130). All of the AltairStrickland crew
members viewed a PowerPoint presentation on crane rigging safety (Ex. R-39).
AltairStrickland provided copies of training documentation for the crew members
working at the time of the accident, which establish they had received
extensive safety training (Ex. R-3 through Ex. R-13). AltairStrickland was under no obligation to
provide special instructions to its employees regarding bull rigging. Therefore, the Secretary failed to establish
a violation of section 1926.21(b)(2) and Item 1 must be vacated.
B. Item
2
The Secretary alleges in Item 2 that
AltairStrickland violated section 1926.1417(q) because the “equipment was used
to drag or pull loads sideways.” (Compl. Ex. A at 7 of 12). More specifically, the Secretary asserts that
on or about May 11, 2016, the crane “was used to pull a load sideways during a
lifting operation, exposing employees to struck-by hazards.” (Id.)
The cited standard mandates the “equipment
must not be used to drag or pull loads sideways.” 29 C.F.R. § 1926.1417(q).
(1) Whether the Cited Standard Applies to the Cited
Conditions
Section 1926.1417 is found under the Cranes and Derricks in Construction provisions
of subpart CC of the construction standards. At the time of the fatality, a crane was
being used in the removal of the heat exchanger at the worksite. Therefore, the cited standard applies to the cited conditions.
(2)
Whether the Requirements of the Cited Standard Were Not Met
The Secretary argues, “[t]he
evidence at trial established that the crane
was used to pull the heat exchanger sideways during the lift.” (Sec’y’s Br. 8)
(emphasis added). The Court does not
agree with the Secretary. As AltairStrickland
correctly points out, the crane did not pull the heat exchanger sideways;
rather, as the heat exchanger was suspended after the crane operator dogged the
crane movement, Foreman Barron attached a come-a-long to the load and used the come-a-long
to move the heat exchanger a few inches to clear the obstruction.[7]
The “equipment” referenced in the
standard is the “equipment covered by this subpart,” 29 C.F.R. § 1926.1401, which is “power-operated equipment, when used in
construction, that can hoist, lower and horizontally move a suspended load,”
including “mobile cranes” such as the one at issue here. 29 C.F.R. §
1926.1400(a). The standard expressly excludes “[m]achinery
that hoists by using a come-a-long or chainfall.” 29 C.F.R. § 1926.1400(b)(1). Thus, the “equipment” referenced in
the cited standard is the crane, not the come-a-long attached to it. Therefore, the Secretary has failed to
establish a violation since he failed to establish AltairStrickland used
“equipment,” as defined by section 1926.1400, to drag or pull the load
sideways.[8]
Thus, Item 2 must be vacated.
C. Item
3
The Secretary alleges in Item 3 that
AltairStrickland violated section 1926.1425(c)(1) because it “did not make sure
that the materials being hoisted when employees were hooking, unhooking, or
guiding the load were rigged to prevent unintentional displacement.” (Compl.
Ex. A at 8 of 12). More specifically,
the Secretary asserts that on or about May 11, 2016, AltairStrickland “did not
ensure that the E-17 exchanger was rigged to prevent unintentional
displacement, exposing employees to struck-by hazards.” (Id.) The cited standard in
relevant part mandates when employees are
engaged in hooking, unhooking, or guiding the load, or in the initial
connection of a load to a component or structure and are within the fall zone, “[t]he materials being hoisted must be rigged to
prevent unintentional displacement.” 29 C.F.R. § 1926.1425(c)(1).
(1) Whether the Cited Standard Applies to the Cited
Conditions
Section 1926.1425(c) sets
requirements when employees are engaged in hooking, unhooking, or guiding the
load. It is undisputed AltairStrickland
was engaged in guiding the heat exchanger,
which was required to be rigged to prevent unintentional displacement. Therefore, the cited standard applies to the cited conditions.
(2)
Whether the Requirements of the Cited Standard Were Not Met
The Secretary argues the cited standard was violated because Compliance
Safety and Health Officer Gomez “testified that the rigging on the heat
exchanger led to the unintentional displacement of the heat exchanger, which
led to other things, including the heat exchanger hitting the pipe that came
crashing on the platform and crushed [the Decedent] and hit Hector Barron.” (Sec’y’s
Br. 9) (citing Tr. 405-07, Ex. C-37).
The Secretary appears to conflate the
fall zone of the load, which is what the standard addresses, with the fall zone
of the pipe.
The “fall zone” is “the area (including but not
limited to the area directly beneath the load)
in which it is reasonably foreseeable that partially or completely suspended
materials could fall in the event of an accident.” 29 C.F.R. § 1926.1401
(emphasis added). The heat exchanger was suspended 2 to 3 feet
above the ground at the time the pipe fell (Tr. 251). As noted supra,
the slight westward movement of the heat exchanger using the come-a-long was
intentional and there is no evidence the heat exchanger was improperly rigged. When asked, “Are you aware of any defects of
the equipment or the actual application of the rigging?” Gomez responded, “I
did not inspect the rigging equipment.” (Tr. 475.)
The preamble to the cited standard indicates it “addresses the
hazards posed to employees from being struck or crushed by the load.” Cranes and Derricks in Construction, 75 Fed. Reg. 47906-01 (August
9, 2010) (emphasis added). The preamble
also explains that paragraph
(c)(1) “requires that the load be rigged to prevent unintentional displacement,
so that workers in the fall zone are less likely to be struck by shifting materials.” (Id.)
(emphasis
added). Therefore, the struck by hazard contemplated by the
standard is that of being struck by the “shifting materials.” AltairStrickland was not required to
anticipate the fall zone of the pipe. Thus,
the Secretary has failed to establish AltairStrickland violated the terms of
the standard. Item 3 must be vacated.
D. Item
4
The Secretary alleges in Item 4 that
AltairStrickland violated section 1926.1425(c)(3) because “[t]he materials were
not rigged by a qualified rigger.” (Compl. Ex. A at 9 of 12). More specifically, the Secretary asserts that
on or about May 11, 2016, AltairStrickland “bull rigging was performed by an
employee who was not a qualified rigger, exposing employees to struck-by
hazards.” (Id.) The cited standard in relevant part mandates
when employees are engaged in hooking,
unhooking, or guiding the load, or in the initial connection of a load to a
component or structure and are within the fall zone, “[t]he materials must be
rigged by a qualified rigger.” 29
C.F.R. § 1926.1425(c)(3).
(1) Whether the Cited
Standard Applies to the Cited Conditions
As indicated supra, section
1926.1425(c) sets requirements when employees are engaged in hooking,
unhooking, or guiding the load. It is
undisputed AltairStrickland was engaged in guiding the heat exchanger, which was required
to be rigged by a qualified rigger. Therefore, the cited standard applies to the cited conditions.
(2)
Whether the Requirements of the Cited Standard Were Not Met
The Secretary contends AltairStrickland violated the cited standard because “bull rigging was
used where nobody was qualified to do bull rigging.” (Sec’y’s Br. 9.) Gomez, based on interviews, identified the
Decedent as the crew member who performed the bull rigging (Tr. 412). AltairStrickland safety manager Christopher
Laster testified he observed the Decedent attach the come-a-long to the heat
exchanger (Tr. 333-334). Osiel Rocha
stated he was not in a position at the time of the rigging to see who attached
the come-a-long to the heat exchanger (Tr. 158-159). Crane operator Richard
Sicard likewise could not see who attached the come-a-long (Tr. 81).
Foreman Barron testified he attached
the come-a-long to the heat exchanger (Tr. 179-181). Jose Duran corroborated the foreman’s
testimony (Tr. 2514). Foreman Barron
stated that after he had attached the come-a-long and started cranking it, the
Decedent stepped in and took over.
[H]e
volunteered to do it, but since I had already attached it, I started cranking and cranking, maybe once or twice. And then
he's just like, let me do it, let me do it.
I mean, he was always looking out -- he was always saying, you know,
kidding around or whatnot, hey man, you're the boss, you shouldn't be working,
let me do it.
(Tr. 182-183.)
This
comports with Laster’s testimony.
Despite testifying earlier that the Decedent had attached the
come-a-long, Laster stated he saw Foreman Barron operating the come-a-long and
recounted the Decedent taking over in striking similar language to that of Foreman
Barron. “And the next thing you know, [the
Decedent] come and say, move, get out of the way, let me do it. You're the
boss, you know, I got this. Move out of the way. And [the Decedent] started
pulling on the come-a-long.” (Tr. 338).
The Court credits Foreman Barron’s testimony that he was the person who
attached the come-a-long to the heat exchanger.
As the person who performed the task, he is in the best position to accurately
recall the events. Therefore, it is Foreman
Barron’s qualifications as a rigger that is at issue.
A “qualified rigger” is “a rigger
who meets the criteria for a qualified person.” 29
C.F.R. § 1926.1401. A “qualified person” is “a person who, by
possession of a recognized degree, certificate, or professional standing, or
who by extensive knowledge, training and experience, successfully demonstrated
the ability to solve/resolve problems relating to the subject matter, the work,
or the project.” (Id.)
Foreman Barron had received the National
Center for Construction Education & Research (NCCER) certification as a
boilermaker, which includes the rigging module (Ex. R-3; Tr. 206). The Secretary has presented no evidence Foreman
Barron was not a qualified rigger. He
incorrectly states, “After interviewing the workers, Gomez determined that none
of the employees performing rigging, particularly [the Decedent], were
qualified to do bull rigging (Tr. 411-412).” (Sec’y’s Br. pp. 9-10). However, Gomez’s testimony on this point
concerns only the Decedent.
Q. Right.
So who was the employee – you have "by an employee who was not a qualified
rigger." Explain to the Court how you determined that there was a
violation of this standard.
A. There
I made the determination as far as who had applied that bull rigging and then
looked at that employee's training record to see if he was a qualified rigger.
And, again, I could not determine that he was a qualified rigger, that that
person had received training specifically on bull rigging.
Q. All
right. Now, that we've had some trial testimony, you've been here, that by
name, the employee not being a qualified rigger, that was [the Decedent] that
actually installed or attached the bull rigging to the exchanger?
A. As I recall.
(Tr.
412.) Therefore, the Secretary has
failed to establish AltairStrickland failed to comply with the terms of the standard. Item 4 must be vacated. Accordingly,
V. ORDER
IT IS HEREBY ORDERED THAT the all citation items are VACATED and no penalties are assessed.
SO ORDERED.
/s/_____________________________
First Judge John B. Gatto
Dated: May 31,
2018
Atlanta, GA
[1]
The Secretary of Labor has assigned responsibility for enforcement of the Act
to OSHA and has delegated his authority under the Act to the Assistant
Secretary for Occupational Safety and Health, who heads OSHA. See Order No. 4–2010 (75 FR 55355), as
superseded in relevant part by 1–2012 (77 FR 3912). The Assistant Secretary has
redelegated his authority to OSHA’s Area Directors to issue citations and
proposed penalties. See 29 C.F.R. §§
1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably
herein. OSHA Compliance Safety and
Health Officer Jorge Gomez conducted a fatality investigation at the Beaumont
facility the morning of May 11, 2016 (Tr. 379).
Based on his recommendations, the Area Director issued the citation that
gave rise to this enforcement proceeding.
[2]
Item 1 of the citation alleged a serious violation of section 29 C.F.R. §
1926.21(b)(2), for failing to instruct each employee in the recognition and
avoidance of unsafe conditions. Item 2
alleged a serious violation of 29 C.F.R. § 1926.1417(q), for permitting
employees to pull the load of a crane sideways.
Item 3 alleged a serious violation of 29 C.F.R. § 1926.1425(c)(1), for
failing to ensure the material being hoisted was rigged to prevent
unintentional displacement. Item 4
alleged two instances of serious violations of 29 C.F.R. § 1926.1425(c)(3), for
permitting material to be rigged by an unqualified rigger. Item
5 alleged a serious violation of
29 C.F.R. § 1926.1428(a) for allegedly failing to ensure that each signal
person met qualification requirements.
After trial, the Secretary withdrew instance (a) of Item 4 and withdrew
Item 5. The withdrawals reduced the Secretary’s total proposed
penalties to $49,884.00.
[3]
Attached to the complaint and adopted by reference was the citation at issue.
Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted
by reference in a different part of the same pleading or in another pleading or
in any motion. A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d).
[4] A
“come-a-long” means “a mechanical device typically consisting
of a chain or cable attached at each end that is used to facilitate movement of
materials through leverage.” 29 C.F.R. § 1926.1401.
[5]
According to AltairStrickland’s HSE
Execution Plan for the ExxonMobil Beaumont facility, “[b]ull rigging refers
to using mechanical methods available to relocate/reposition through lifting
techniques (rigging methods) site parts and equipment either into or out of a
designated area. The same principles
apply to bull rigging as normal rigging.” (Ex. C-16, p. 18.)
[6]
Under the Act, an employer may seek review in the court of appeals in the circuit
in which the violation occurred, the circuit in which the employer’s principal
office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a). The
Secretary may seek review in the circuit in which the violation occurred or in
which the employer has its principal office. 29 U.S.C. § 660(b). This case
arose in Beaumont, Texas, and the company’s corporate office is located in La
Porte, Texas (Resp.’s Proposed Findings of Fact and Conclusions of Law;
Pretrial Order, Attach. C ¶ 5), both in the Fifth Circuit. “[I]n general,
‘[w]here it is highly probable that a Commission decision would be appealed to
a particular circuit, the Commission has ... applied the precedent of that
circuit in deciding the case—even though it may differ from the Commission's
precedent.’” Dana Container, Inc., 25
BNA OSHC 1776, 1792 n.10 (No. 09- 1184, 2015), aff’d, 847 F.3d 495 (7th Cir.
2017) (citation omitted). Therefore, the Court applies the precedent of the
Fifth Circuit in deciding the case, where it is highly probable that a
Commission decision would be appealed to.
[7]
The Secretary asserts dogging the crane involves moving the load incrementally:
“Gomez testified that from the interviews he conducted, AltairStrickland’s crew
directed the crane operator to boom up, hold, boom up, hold, boom down, hold,
boom up, hold, etc. This caused the heat exchanger to move sideways.” (Sec’y’s.
Br. p. 3). Both the Secretary and his
compliance officer are incorrect. As
indicated supra, the crane operator
explained that to “dog the crane” means “to lock it down. Stop all movement.” (Tr. 44.)
[8] The Secretary also alleges Sicard’s
operation of the crane caused the heat exchanger to move. See Secretary’s Br. 4 (citing
Tr. 189). The Court finds no merit in
this argument. While it is true Foreman
Barron testified Sicard was making big movements with the heat exchanger, it is
clear Barron was referring to events before
the come-a-long was attached to the heat exchanger and the “big movements” were
the reason Foreman Barron decided to use the come-a-long. “[A]ll I'm worried about is shifting it over
because the crane operator, he just – he couldn't do soft and gentle moves,
what we needed to get it out of there.
It was just -- he was just doing big, big movements and I -- we stopped,
and I just proceeded to shifting it over, you know.” (Tr. 189.) Further, Sicard credibly testified he never
moved the load once he was instructed by Duran to “dog” the crane. (Tr. 75.) The Court credits this testimony.