SECRETARY OF LABOR,
Complainant,

v.

AMOCO TEXAS REFINING COMPANY,
Respondent,

OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION AND ITS
LOCAL 4-449,

Authorized
Employee
Representative.

OSHRC Docket No. 79-5292

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:
This case is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  Administrative Law Judge Louis LaVecchia found that Respondent, Amoco Texas Refining Company ("Amoco"), violated the general duty clause, section 5(a)(1) of the Act,[[1/]] by allowing an employee to hoist personnel with a long boom crane when the employee was not sufficiently trained in the machine's operation.  We reverse Judge LaVecchia's decision and vacate the citation.

I

On August 23, 1979 an OSHA compliance officer conducted an inspection of Amoco's workplace pursuant to an employee complaint.  The employee's complaint stemmed from an incident in which several Amoco employees were jostled while riding in the personnel basket of a long boom crane.

An explosion occurred at the Amoco workplace several weeks before the incident.  Because access to certain high points of the plant had been destroyed, Amoco rented a Link-Belt model LS-718 long boom crane to lift maintenance employees to those areas. The 718 is a larger long boom crane than the LS-518 cranes which Amoco already had at its workplace.

On August 1, William McCune was asked to operate the 718 crane.  McCune was qualified to operate the 518 crane but had never performed a job with the 718 crane.  Before he used the crane, McCune reviewed the 718 crane's controls and safety features and looked at portions of the operator's manual.  McCune testified that he did not review the entire operator's manual too closely because the manual dealt primarily with crane maintenance.

Before he made a lift, McCune "went through the motions" with the crane as the foreman, William Nicolini, looked on.  After this exercise, Nicolini went up in the personnel basket with two other employees for a test run.  The test run went smoothly.  Nicolini testified that, in his opinion, McCune was able to operate the crane safely.  McCune also testified that after acquainting himself with the crane and making the test run he felt confident that he could handle the machine. [[2/]]

McCune successfully used the crane to lift a personnel basket containing three maintenance employees to their work area and to return them to the ground.   McCune then went to eat, and Bill Lloyd took a second crew up in the basket.  While this crew was working, McCune came back and replaced Lloyd.

When the crew wanted to come down, they got into the basket and attached their safety harnesses.  McCune swung the basket away from the building but, when McCune tried to lower the basket, the basket would not come down.  Lloyd had left a pawl engaged but had not told McCune.  The pawl is a safety device which, when engaged, allows the basket to be raised but not lowered.  In order to release the pawl, McCune raised the basket several times and after doing so was prepared to bring the crew down.  The crew members testified that the basket was jostled several feet on three to five occasions.  Believing that it would be dangerous to remain in the basket while McCune operated the crane, they signaled to be brought back over to the building and descended to the ground level using a stairway that had been badly damaged in the explosion.

Based principally on this incident, the Secretary issued a section 5(a)(1) citation which alleged:

The crane operator was not trained or familiar with the crane operating controls or operating manual while hoisting personnel.

(a) On or about August 1, 1979, the Link Belt Crane, model LS-718 was operated by an employee who was not familiar with the operating manual as specified by the manufacturer.  The above existed in the area of No. 3 Cat Cracker.

Judge LaVecchia found a section 5(a)(1) violation.  He reasoned that during the incident the workmen in the basket were exposed to possible serious harm or death from being thrown out of the personnel basket.  Judge LaVecchia also concluded that McCune's training on the 718 crane "was too short and haphazard to be considered adequate."

II

The Secretary alleges, and the judge found, that McCune was not adequately trained to operate the LS-718 crane safely [[3/]] Amoco does not dispute that a failure to properly train a crane operator before permitting him to hoist personnel would violate section 5(a)(1), but contends that McCune was adequately trained.

There is no doubt that McCune was qualified to operate the 518 crane.  At Amoco, heavy equipment operators are trained on progressively more difficult and sophisticated equipment.  An employee starts by driving a truck and moves through several other pieces of heavy equipment until he is qualified to handle a long boom crane.   Amoco's program also combines classroom work with on-the-job training.  McCune mastered various pieces of heavy equipment and several months before the incident became qualified to operate the 518 crane.

The theory of the Secretary's case is that McCune was not qualified to operate a 718 crane even though he may have been qualified to operate a 518 crane.  However, testimony of several witnesses familiar with long boom cranes indicates that the operation of various long boom cranes is similar and that a qualified crane operator can familiarize himself with a new crane in about a half hour. McCune testified that the 718 crane was "very similar" to the 518 crane.  Francis Zeringue, who trains and qualifies employees to operate cranes and who has had many years experience with long boom cranes, testified:

Q.  As of February, 1979, was he qualified to operate any crane that you had at the plant?
A.  Yes, sir.  As of that date, Mr. McCune was ready to operate any heavy equipment that I had.
Q.  Okay.  Was McCune qualified to operate the rented crane?
A.  Yes, sir, he was.
Q.  And why do you say this?
A.  Because.  Basically, this crane, this 718, is identical to many other cranes whether it be another Link-Belt, a Manitowoc, an American.  Basically, all the cranes are alike.

You can -- If a man has qualified as a heavy equipment, he can operate all the cranes that have been put in front of him.

Q.  Do you have other equipment operators at the plant who may have never seen the Link-Belt 718, but nevertheless could operate it after a break-in period?
A.  Yes.
Q.  And, how long a break-in period do you think that they would need?
A.  For a real heavy equipment operator that had been okayed?

He could familiarize himself to operate it in about, maybe, 30 minutes.

Q.  30 minutes?
A. Yes.

Mr. W.E. Nelson, the Amoco supervisor who devised the company's machine operators' training program said that long boom cranes are "all pretty much identical" and testified:

Q.  How long should it take a qualified crane operator, long boom crane operator, to familiarize himself with a new long boom crane, a new piece of equipment, so that he could operate it safely?
A.  Well, depending on the individual to some degree.  But five, say 10 minutes to half an hour.

The Secretary presented the testimony of several workers who believed McCune was not qualified to operate the 718, including the employees who were in the basket when it was jostled.  While these employees' concern for their own safety is understandable, they did not have any experience in operating long boom cranes and were unable to testify as to the amount of training necessary for a person to become qualified to operate a 718 crane.  Moreover, the Secretary presented no probative evidence concerning the amount of training necessary for a qualified 518 operator to handle a 718 crane safely.

Essentially, the only evidence that tends to suggest McCune was not qualified to operate the 718 is the fact that he experienced some difficulty in handling the crane during the incident that led to the citation.  However, in light of the total record evidence, that incident alone is insufficient to demonstrate that McCune was unqualified as alleged.  Whether the record establishes that McCune was not qualified to operate the 718 crane must be determined by evidence relating to his training and experience and the degree of training necessary to become qualified for operation of the equipment involved.  The record fails to sustain the Secretary's theory.  Accordingly, the Secretary has not proven that Amoco failed to render its workplace free from a recognized hazard that is causing or likely to cause death or serious physical harm.

Accordingly, Judge LaVecchia's finding of a section 5(a)(1) violation is reversed and the citation is vacated.  SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  MAR 25 1983

CLEARY, Commissioner, dissenting:

I would affirm Judge LaVecchia's decision.  I disagree with the Commission's finding that the brief training period provided to crane operator McCune was sufficient to enable him to operate the 718 crane safely.

This Commission has long held that an inadequate training program can be the basis of a section 5(a)(1) violation.  Stepan Chemical Co., 77 OSAHRC 74/E6, 5 BNA OSHC 1367, 1977-78 CCH OSHD ¶ 21,784 (No. 5562, 1977).  An employer must take all feasible steps to protect its employees from recognized dangers that are causing or are likely to cause death or serious physical injury.  National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973).  Such steps include, where necessary, the employer's provision of an adequate safety and training program.  Id.; General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453 (1st Cir. 1979).

A review of the evidence in this case reveals that the training offered McCune on this crane was, as Judge LaVecchia expressed, "too short and haphazard to be considered adequate."  McCune had never operated a 718 crane before the day of the incident.  The testimony at the hearing established that the sum total of McCune's exposure on this new, more sophisticated equipment was that he glanced briefly at the crane's controls and operating manual, then was given only 20 to 45 minutes, depending on the accuracy of the testimony, to familiarize himself with the characteristics of the larger crane.  One witness testified McCune had trouble getting the personnel basket off the ground in the preliminary operations on August 1, before the men entered the basket.  The first operation he was called upon to perform was lifting a foreman and two pipefitters to a height of 200 feet.

While the foreman, Nicolini, testified that he believed that McCune was qualified to operate the 718 crane, several eyewitnesses to McCune's test run and the later incident stated that McCune did not have the technical ability to operate the crane safely.   They testified that McCune's movements of the crane were erratic and that during his test run McCune let the personnel basket down quite hard.  Several of these employees were so doubtful of the safety of the operation, that they refused to ride in the personnel basket with McCune at the controls.

The majority says that the testimony of these employees cannot be relied upon because they were not familiar with crane operations. However, it is worth noting that Nicolini, the foreman who ordered the lift of personnel in the basket, had no background in crane operations either.  Nicolini was a maintenance foreman.  He had not had experience in operating heavy cranes, and was neither in a position to, nor had the authority to qualify McCune to operate the 718 crane.  The fact is that no one familiar with crane operations witnessed McCune's practice lifts.  It was only after a day of personnel lifts and employee complaints that a foreman familiar with crane operations, Zeringue, reviewed McCune's operation of the crane.

The majority gives weight to the testimony that the 518 and 718 cranes are similar and a qualified 518 crane operator could acquaint himself with the 718 in less than one-half hour.  I agree that the issue in the case is not Amoco's overall training program which appears to be comprehensive, and I concede that McCune was a properly trained operator on the 518 crane.  However, even an experienced operator requires practice to operate new and unfamiliar machinery.  The violation in this case is that employees were hoisted to a height of approximately 200 feet during the operator's familiarization period on a new piece of equipment. McCune should have been thoroughly checked out on this crane before attempting to lift employees.  The lifting apparently was attempted at the instance of Nicolini, a maintenance foreman, who was not competent to judge the familiarization period necessary, or the proficiency of McCune on the 718 crane.  Further, the fact that three Amoco employees were jostled at 200 feet is persuasive that McCune was not sufficiently familiar with the 718 crane at that point.

McCune testified that the reason the basket was jostled was that, unknown to McCune, a safety pawl had been left engaged. McCune had to raise the basket several times to disengage the pawl.  The key point is that the pawl left engaged was a safety feature of the 718 crane which was not on the 518 crane.  McCune's unfamiliarity with this safety feature demonstrates that the minimal training given to McCune by Amoco did not make him familiar with those features of the 718 crane which differed from the 518.

It is not enough for the equipment in the workplace to be safe.  Safe equipment can become dangerous if the employees operating that equipment have not been properly instructed in the safety features of the equipment.  Barker Brothers, 78 OSAHRC 5/E7, 6 BNA OSHC 1283, 1977-78 CCH OSHD § 22,488 (No. 12964, 1978); Herbert Vollers, Inc., 76 OSAHRC 135/B7, 4 BNA OSHC 1798, 1976-77 CCH OSHD § 21,230 (No. 9747, 1976); aff'd 565 F.2d 151 (3d Cir. 1977).  Twenty to thirty minutes of "self instruction" is not sufficient training where, as here, the equipment is technically complex and capable of doing great harm if not properly controlled.[[1/]]

The Administration Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides: 

Sec. 5(a)(1) Each employer--
(a) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[[2/]] Prior to McCune's lifting Nicolini and the two other employees, an Amoco employee, Luther Fitts, observed McCune practicing with the crane, and refused to get into the personnel basket.  Fitts claimed that McCune jerked the basket around during his practice and that, in Fitts' opinion, McCune did not have the "know how" to operate the 718 crane.  Fitts was suspended for the remainder of the workday when he continued to refuse to ride in the personnel basket while McCune operated the crane.

[[3/]] The Secretary has not filed a brief on review but relies on the judge's decision.

[[1/]] McCune himself testified:  "That machine, when you get in the cab of it, looks like you are crawling in a spaceship.  It has dials and switches overhead, on the side and down the front.  Something like nobody has ever seen at Amoco before."

Moreover, the 718 crane had a reach of 310 feet, as compared with the 518's reach of 230 feet.  Amoco's mobile equipment supervisor, who had qualified McCune on the 518, testified that length of boom is a significant variable in the operation of a crane, both because length affects the motion of the boom and because length must be factored into the operator's calculations for successful delivery of the load to the desired site.