Mountain States Contractors, LLC

Merriam-Webster.com, http://www.merriam-webster.com/dictionary/broken (March 26, 2015).

Similarly, the term “cracked” is defined as “broken (as by a sharp blow) so that the surface is

fissured.” Id., http://www.merriam-webster.com/dictionary/cracked (March 26, 2015) (emphasis

added). The Court finds that Complainant’s interpretation of the term “broken” comports with

its plain meaning. See Auer v. Robbins, 519 U.S. 452 (1997). Apart from the dictionary, and in

very real terms, however, the Court doubts that such fine distinctions carry much weight when

the cracked, broken, or fractured wire has several tons of weight applied to it. Thus, insofar as

the wires have been referred to as broken, cracked, or fractured, the Court will accord each of

those terms the same meaning.

                 2. The Evidence

   Complainant proffered both documentary and testimonial evidence in support of its

allegation that the boom cable exhibited a Category II deficiency, which mandates that the crane

be taken out of service by a competent person. Of particular note were the photos taken by

CSHO Sotak, the Daily Crane Inspection forms, and the testimony of Hutchins, Bundy, Shawn

Shehane, and Robert Kindrat. The Court shall address each piece of evidence in turn.

                     i.   The photographs

   CSHO Sotak took photographs of the boom cable on two separate occasions after it

snapped on May 21, 2013. (Ex. C-4 to C-14). These photographs show a cable that, without

context, clearly meets the Category II criteria. (Id.). The problem with this evidence, however, is

the fact that there was no credible testimony that the photographs accurately depicted the

                                            24

condition of the cable at any time prior to the day of the accident. During the accident, the cable

“whipped” and fell with the boom onto the highway, which could have caused at least some of

the damage observed in the photographs. (Tr. 369–70). There was no forensic analysis of the

cable post-accident to indicate whether the cause of the broken wires depicted in the photographs

was the result of something other than the accident. See All Purpose Crane, Inc., 13 BNA

OSHC 1236 (No. 82-284, 1987) (crediting expert testimony indicating that without proper in-

depth analysis nobody could ascertain what caused wires to break). 16 Accordingly, the Court

accords no weight to the photographs taken by CSHO Sotak.

                       ii.    CSHO Sotak

    The testimony of CSHO Sotak is set forth in detail in Section III(a), supra. The Court

accords great weigh to her testimony as it relates to her interviews with Shawn Shehane and

Aaron Hutchins.

                       iii. Robert Kindrat

    As noted infra as it relates to the testimony of the crane operators, the Court is more

interested in what Kindrat observed as opposed to what he concluded. Kindrat performed the

annual inspection of the crane on April 3, 2013. During his inspection, he observed two broken

wires in two different lays on the boom cable. (Tr. 264). At the time, however, Kindrat did not

have a crane operator with him to “boom down” the crane in order to unspool more of the boom

cable for inspection. (Tr. 263). Darryl Meredith, along with Aaron Hutchins, conducted a

follow-up inspection, during which they found additional broken wires. (Tr. 273–75). Kindrat

testified that Meredith told him about additional broken wires, but that the cable did not need to

16. The standard at issue in All Purpose Crane was 29 C.F.R. § 1926.550(a)(7)(1). The set of standards found in
    1926.550 was supplanted by the standards now found at 1926.1400 et seq. See Cranes and Derricks in Construction,
    75 Fed. Reg. 47906-01, 47920 (August 9, 2010).

                                                  25
    

    be taken out of service. (Tr. 275). Although Kindrat’s testimony does not support a finding that

the boom cable met the out-of-service criteria at the time of his inspection, the Court is curious

as to how he certified an annual inspection without exposing the full length of the cable. (Ex. C-

17). See 29 C.F.R. § 1926.1413(c)(2)(ii) (“The inspection must be complete and thorough,

covering the surface of the entire length of the wire ropes . . . .”).

    The Court is dubious about the annual examination performed by Kindrat. During his

annual inspection, which requires that the entire cable be laid bare, he certified that he performed

a complete inspection of the boom cable even though he admitted at trial that he had not boomed

down the crane. Further, though he also testified that he observed broken wires in the boom

cable, he did not document these findings in his annual report. (Ex. C-17). The auxiliary cable,

which was characterized as “bad” and “ordered” in his inspection report, was not replaced until

more than two weeks, fourteen exclamation points, and nine uses later. (Ex. C-15). Instead,

much like the documentation of, and response to, the Daily Inspection forms, it appears that the

annual inspection is viewed as little more than a perfunctory process attendant to owning and

operating a crane.

    To the extent the Court concludes that the annual inspection report was merely a

perfunctory process in order to “check the box” as to what was required under the regulation, the

Court is hard-pressed to ascribe any weight to the conclusions reached by Kindrat in his annual

inspection report. A review of the testimony indicates the annual inspection was perfunctory.

First, Kindrat did not have an operator boom down the cable for inspection. Second, his report

states that he reviewed the Daily Inspection forms and concluded they were acceptable.

However, he does not address the consistent comments about the cables needing to be replaced

or that they were bad, nor did he discuss the equipment not being taken out of service based on

                                               26

the Company’s own policy, or follow-up with the operators who made those comments to obtain

further information. Third, supporting the conclusion that his inspection was merely perfunctory

is that Hutchins and Meredith called Kindrat after his inspection report and advised him that

“additional” broken cables had been identified and the boom cable needed to be replaced. Even

after those communications, Kindrat did not amend his inspection report to reflect this

information. Thus, even if by chance the inspection report was reviewed by supervisors or the

safety department, those individuals would not have correct information on which to act. Even

after the communication from Hutchins and Meredith in which they identified “additional”

broken wires he did nothing. This information, along with his testimony that he observed broken

wires, should have placed Kindrat on further notice that the annual inspection he just concluded

was not accurate or sufficient and needed to be re-done.

                        iv. Shawn Shehane

    a.   Pretrial statements.         On April 11, 2013, Shawn Shehane was the first crane

operator to observe and document broken wires in the boom cable wires. 17 (Exs. C-15 and C-32).

According to his sworn statement, however, he did not believe that the cable met the 3-and-6

criteria at any time prior to the accident. In his statement he verified that the boom cable had

been ordered for 2 ½ to 3 weeks. Shawn also stated that Aaron Hutchins told him that he noticed

broken strands in the cable. In response, Shawn told CSHO Sotak that he advised his

superintendent, “Tony”, who “got it ordered.” (Ex. C-32).

    b.   Trial testimony. Shehane testified that Hutchins asked him to look at the boom

cable on the Terex HC 165 at some point after the annual inspection. (Tr. 618). He said that he

saw “hairline cracks, small fractures” in the lay, but that he did not see any wires that were

17. As noted above, Kindrat actually noticed cracks in the boom cable wires during his annual inspection on April
    3, 2013.

                                                   27
    

    “broken apart” and thus concluded that the cable did not meet the 3-and-6 criteria. (Tr. 619).

Shehane also testified that Hutchins did not convey his belief that the crane should be taken out

of service. (Tr. 619). This testimony needs to be evaluated in conjunction with: (i) his entries on

his Daily Inspection forms indicating on April 13, April 16 and April 22, 2013, he made a

notation that the boom cable needs to be replaced; (ii) Hutchins’ testimony that on April 18,

2013, he and Darrell Meredith discussed the need for the boom cable to be replaced with him;

and (iii) his written statement to the CSHO that he had observed broken wires—not hairline

fractures—on the boom cable.

                    v. Brian Bundy

   a.   Pretrial statements.     Brian Bundy was operating the crane at the time of the

accident, and, according to the Daily Inspection forms, was the only individual that operated the

crane in the weeks leading up to the accident. (Ex. C-15). For the period of May 3, 2013 to May

20, 2013, he made no entries on the Daily Inspection form regarding the boom cable. On July 18,

2013, in an interview with the CSHO, Bundy stated that the cable needed to be taken out of

service. (Tr. 340). According to his deposition, Bundy testified that he observed cracks in “half

a dozen” lays along the boom cable. (Tr. 202).

   b.   Trial testimony. At trial, Bundy stated that he did not believe the boom cable met

the 3-and-6 criteria. (Tr. 662–63). Much like Shawn Shehane’s testimony, significant emphasis

seems to be placed on the fact that cables were not broken in two. (Tr. 200). Instead, he testified

that he saw “some cracks in it, just a couple.” (Tr. 200). Notwithstanding the specificity of his

prior deposition testimony, at trial Bundy testified to only seeing “some”, “a couple”, or “a few”

cracks along the cable. (Tr. 200, 203). Bundy’s testimony needs to be evaluated in conjunction

with: (i) the Daily Inspection forms he completed, which, for the period of May 3 to May 20,

                                             28

2013, indicate he made no notations on his Daily Inspection form, but then on May 20 and May

21, 2013 indicates that the boom cable needed to be replaced; and (ii) the July 18, 2013

statement he made to the CSHO indicating that the boom cable needed to be taken out of service.

(Ex. C-15).

                        vi. Aaron Hutchins

   a.     Pretrial statements. The lynchpin of Complainant’s case begins with Hutchins. In

his signed statement to CSHO Sotak, Hutchins stated that there were multiple broken wires on

the boom cable, which met the 3-and-6 criteria and should have been taken out of service as

early as April 18, 2013. (Ex. C-16). In his statement, Hutchins told CSHO Sotak that he noticed

broken strands a couple of days after the annual inspection. Hutchins indicated that: (i) he

advised Shawn that the boom cable was bad and a new cable was needed; (ii) the boom hoist

cable was broken with wires broke throughout the cable; and (iii) he had seen some strands that

met the 3-and-6 criteria. Finally, he stated he noticed this when the cable was on the sheave. (C-

16).

   b.     Trial testimony. At trial, he testified that, during his interview, he told CSHO Sotak

that wires were broke throughout the cable and that some strands met the out of service criteria.

(Tr. 239). He also testified that there were more than six “hairline fractures” on the cable, and,

when confronted with his deposition testimony, admitted that there were more than six of these

hairline fractures in a lay of the boom cable. (Tr. 233). When he observed these fractures on

April 18, 2013, he showed them to Shawn Shehane, who decided to continue using the boom

cable in that condition. (Tr. 234). In the Daily Inspection forms, Hutchins also continued to

document on various dates the need for the boom cable to be replaced and marked “Repair” next

to the implements of the crane associated with the boom cable. (Ex. C-15). Notwithstanding the

                                             29

foregoing, at trial Hutchins would not admit that the same number of wires in a lay were

“broken”, and thus testified that the cable did not meet the out-of-service criteria prior to the

accident on May 21, 2013. (Tr. 237–38).

                       vii. Daily Crane Inspection Forms

   Although the Court has already laid out in detail the substance of the Daily Inspection

forms, there is one additional issue to address with respect to this evidence. See Section III.A,

supra. Respondent has called into question the propriety of Complainant using the inspection

forms in support its allegation that the boom cable should have been taken out of service.

Specifically, Respondent contends that the Daily Inspection forms are voluntary self-audits,

because the regulations do not require documentation of the daily/shift inspection. See 29 C.F.R.

1926.1413(a). According to Complainant’s inspection policy, “[T]he Agency will not routinely

request self-audit reports at the initiation of an inspection, and the Agency will not use self-audit

reports as a means of identifying hazards upon which to focus during the investigation.” Final

Policy Concerning the Occupational Safety and Health Administration’s Treatment of Voluntary

Safety and Health Self-Audits, 65 Fed. Reg. 46498 (2000).

   The Court finds that the Daily Crane Inspection forms are not voluntary self-audits.

Voluntary self-audits are, by definition, not mandated by regulation. The daily/shift inspection,

on the other hand, is mandatory. 29 C.F.R. 1926.1413(a). Those mandatory inspections do not

become voluntary self-audits merely because Respondent chose to document them. By way of

comparison, the audits performed at Respondent’s worksite by Fortier Loss Consultants are

clearly voluntary audits because there is no standard mandating their implementation. (Ex. R-

24). See also BP Products N. Am., Inc., & BP-Husky Refining, LLC, 2013 WL 9850777 at *3–4

(No. 10-0637, 2013) (ALJ) (rejecting Secretary’s use of self-audit performed by third-party

                                             30

safety consultant and commissioned by respondent). In BP Products, the audits were not

performed pursuant to a duty imposed by the Act. The ALJ was just as concerned with how the

reports were used as much as the fact that they were used; namely, that the Secretary used them

to identify hazards that would serve as the basis for a citation. Id. at *4. Further, as discussed by

the ALJ in BP, the purpose behind the policy was to ensure that employers were not dissuaded

from engaging in independent activities to make their workplaces safer. Id.

   No such concerns are present under the circumstances presented here, where Respondent

is already required to perform the inspections. See 65 Fed. Reg. at 46501 (“The policy applies to

audits . . . (2) that are not mandated by the Act, rules or orders issued pursuant to the Act, or

settlement agreements.”). Finally, even if the reports could conceivably be considered voluntary

self-audits, Complainant did not run afoul of its own mandate—the hazard had been identified by

the time the reports were reviewed. See id. (“OSHA intends to seek access to such reports only

in limited situations in which the Agency has an independent basis to believe that a specific

safety or health hazard warrants investigation, and has determined that such records may be

relevant to identify or determine the circumstances of the hazardous condition.”). Additionally,

the only evidence that does not seem to be a moving target from the pretrial phase of this

litigation to the trial itself are the Daily Inspection forms. For the reasons stated below, the

Court gives great weight to the Daily Inspection forms.

                 3. Conclusion

     The Court finds that the great weight of the evidence supports Complainant’s allegation

that the terms of the cited standard were violated. There is no documentary evidence,

photographic or otherwise, that specifically illustrates the boom cable met the 3-and-6 criteria

                                             31

prior to May 21, 2013. However, the testimony and statements of Hutchins, when coupled with

the Daily Crane Inspection reports, support the Court’s conclusion.

   As Respondent notes, both Bundy and Shawn Shehane have been consistent in their

testimony that they did not observe a Category II deficiency on the boom cable prior to May 21,

2013. That said, the Court is less concerned about their conclusions than what they specifically

observed. With respect to Bundy, he testified that he saw “some” or “a few” “cracked” wires,

and when presented with his deposition testimony, further admitted that he saw cracks in a half-

dozen lays. This testimony directly contradicts the CSHO’s testimony that when she met with

Hutchins and Bundy on July 18, 2013, Bundy stated to her that the crane should have been taken

out of service. (Tr. 340). Likewise, Shawn Shehane also testified to seeing cracks in the boom

cable (he was, in fact, the first to observe them). This change in terminology in describing the

condition of the boom cable from his statement given to the CSHO undermines his observations.

In his statement he specifically stated that the cable had broken wires even though he concluded

the broken wires did not meet the 3-and-6 criteria. (C-32). Thus, while they may not have

reached the same conclusion as Hutchins (at least insofar as his testimony and deposition

testimony are concerned), they nonetheless observed deficiencies such as “cracks” and “hairline

fractures”.

   The problem the Court has with Bundy’s and Shehane’s testimony is the fact that they

attempted to diminish what they saw through the use of hairline distinctions between a “broken”,

“cracked”, or “fractured” wire and generalizations as to the number of deficient wires they

observed. As it relates to Shawn Shehane, the Court notes that his characterization of the cable’s

condition changed from the term “broken” wires in his statement to “cracked” or “fractured” in

his testimony. As to Bundy, his characterization of the cable’s condition has ranged from

                                           32

concluding the crane should have been removed from service when he spoke to CSHO Sotak on

July 18, 2013, to seeing just a couple of cracks in the cable, to having observed cracks in “half of

a dozen” lays on the boom cable when confronted with his deposition testimony. (Tr. 202). This

sort of wordplay appeared as if it were coached and aimed at mitigating the consequences of

their observations. The generalized and obfuscatory nature of Shehane’s and Bundy’s

observations, along with their use of different terms as they were prepared for trial, undermines

the Court’s confidence in their respective conclusions that the cable did not meet the 3-and-6

criteria. See All Purpose Crane, 13 BNA OSHC 1236 at *2 (discounting crane operator’s

conclusion that cable did not meet out-of-service criteria based on expert testimony that proper

method of inspecting cable involves bending and flexing to reveal otherwise concealed breaks).

The Court gives great weight to the statements Shawn Shehane gave to the CSHO as to the

condition of the cable and his communication with Hutchins after the annual inspection, in which

he stated that Hutchins pointed out to him additional broken wires. However, the Court accords

little weight to his conclusions that the cable did not meet the 3-and-6 criteria. (Ex. C-36).

   Further, the Court is concerned with the quality of Bundy’s observations.                 Bundy

operated the crane eight times between May 3, 2013 and May 20, 2013, before he documented

any deficiencies in the boom cable. This is so even though both Shawn Shehane and Hutchins

documented seven times previously that the boom cable either needed to be replaced or was on

order. When coupled with his rather cautious testimony as to his observations, the Court is not

convinced that Bundy performed a close enough examination of the cable to make a

determination either way. The Court gives Bundy’s trial testimony no weight.

   Hutchins, on the other hand, was fairly consistent and specific when discussing his

observations of the boom cable. To be sure, Hutchins’ trial testimony contradicted his earlier

                                             33

statements and deposition testimony that the cable met the out-of-service criteria, and he also

engaged in the same verbal gymnastics as Bundy and Shehane when he stated that the wires were

not broken but “fractured”. Those changes, however, appear to be a product of the same sort of

coaching the Court discerned in Bundy’s and Shehane’s testimony. Otherwise, in no uncertain

terms, Hutchins was consistent throughout that he observed at least six “broken” or “fractured”

wires in one lay along the boom cable. 18 Those observations are consistent with: (1) his

testimony that he and Meredith expressed their concerns to Kindrat regarding the boom cable;

(2) the statements he made to Shawn Shehane, which Shawn repeated in his statement to the

CSHO, that the cable had additional broken wires that he located on the sheave in addition to

what Kindrat had observed; and (3) the documentation found in the Daily Crane Inspection

forms. Though the reports do not specifically mention broken wires or the 3-and-6 criteria, from

April 11, 2013 on, they consistently state that the cable needed to be replaced and that its

associated implements required “Repair”. In that regard, the Court rejects any suggestion, from

Hutchins or anyone else, that the statement “the cable needs to be replaced” (or some variant

thereof) merely indicates that the cable has some wear and tear and needs to be replaced at some

point in the future. (Tr. 643–45). As with the regulations and statutes, the Court ascribes the

notes in the Daily Inspection forms their clear and unambiguous meaning. All crane operators

testified that they knew the 3-and-6 criteria. Stating that the cable needs to be replaced is a

strong indication that the cable meets the out-of-service criteria. This is only made stronger by

the fact that all crane operators indicated that the implements associated with the boom cable

needed “Repair”, which, according to Respondent’s own definition, means that the “item needs

to be repaired before further operation.” (Ex. C-15) (emphasis added). Again, this appears to be

18. As the Court noted earlier, it sees no meaningful difference between a cracked, fractured, or broken wire.

                                                     34
    

    another attempt at confusing the rather clear message conveyed by Hutchins at the outset of the

investigation that the cable should have been taken out of service.

   In summary, the Court gives great weight to:          (1) CSHO Sotak’s testimony as to

Shehane’s and Hutchins’ pretrial statements; (2) the Daily Inspection forms; (3) the pretrial

statements of the crane operators, which show substantial consistency as to the condition of the

boom cable; and (4) the trial testimony of Hutchins, insofar as that testimony is consistent with

the other operators’ statements to CSHO Sotak, as well as his own pretrial statements. Based on

the foregoing, the Court finds that Complainant has proved by a preponderance of the evidence

that Respondent violated the terms of the standard.

        c. Respondent’s Employees Were Exposed to the Hazard

   There is no real dispute as to whether Respondent’s employees were exposed to the

hazard. Complainant identified at least four people that were exposed to the falling boom and

cable, which will whip back when it breaks under tension. (Tr. 369). In particular, the cable

whipped back and broke out the windows of the crane cab, which was occupied by Bundy at the

time of the accident. (Tr. 369–70). This evidence is more than adequate to establish employee

exposure.

    D. Respondent Knew or with the Exercise of Reasonable Diligence Could Have Known
                           of the Violative Condition

   “To establish knowledge, Complainant must prove that the employer knew or, with the

exercise of reasonable diligence, should have known of the conditions constituting the violation.”

Jacobs Field Svcs. N.A., 2015 WL 1022393 at * 3 (No. 10-2659, 2015) (citing Contour Erection

& Sliding Sys., Inc., 22 BNA OSHC 1072, 1073 (No. 06-0792, 2007)). To determine reasonable

diligence, the Court considers several factors, including “an employer’s obligation to inspect the

work area, anticipate hazards, take measures to prevent violations from occurring, adequately

                                            35

supervise employees, and implement adequate work rules and training programs.” Id. (citations

omitted); see also N&N Contractors, Inc., 18 BNA OSHC 2121 (No. 96-0606, 2000).

   “The actual or constructive knowledge of an employer’s foreman can be imputed to the

employer.” Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82–928, 1986).

“An employee who has been delegated authority over other employees, even if only temporarily,

is considered to be a supervisor for the purposes of imputing knowledge to an employer.” Paul

Betty, d/b/a Betty Brothers, 9 BNA OSHC 1379, 1381–82 (No. 76–4271, 1981). It is the

substance of the delegation of authority, not the formal title of the employee having such

authority, that determines whether a person is properly characterized as a supervisor. Dover

Elevator Co., 16 BNA OSHC 1281 (No. 91-862, 1993). See Diamond Installations, 21 BNA

OSHC 1688 (No. 02-2080, 2066) (permitting imputation of knowledge to employer based on

temporary delegation of authority). The Commission has also held that an individual empowered

to take corrective action, or is responsible for ensuring that work is done safely, can be

considered a supervisor for the purposes of imputing knowledge to the employer. See Rawson

Contractors, Inc., 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003); Kern Bros. Tree Svc., 18

BNA OSHC 2064 (No. 96-1719, 2000).

   The Court finds that Complainant has established actual and constructive knowledge with

respect to the boom cable. Shawn Shehane testified that he was a foreman for Respondent and

supervised a crew of three to four. (Tr. 141–43). He was the first to observe and report “cracks”

in the boom cable wires, viewed them independently with Hutchins, and inspected and operated

the crane after Hutchins voiced his concern. Clearly Shawn Shehane had knowledge of the

condition. Regardless of whether he concluded, reasonably or not, that what he observed

                                           36

constituted a Category II violation, Shawn saw the cable in a condition that the Court has found

violated the terms of the standard. Thus, Respondent had actual knowledge of the condition.

   Tommy Shehane was the bridge superintendent and thus responsible for multiple

foremen and their crews. (Tr. 105–106). Tommy testified that Shawn told him the cable was

showing signs of wear in April, and that he placed an order for a new one. (Tr. 109–110).

Tommy admitted that he did not monitor the cable; he relied on the crane operators to make that

call. (Tr. 109). He was aware of the Daily Crane Inspection forms and where they were kept, but

neither he nor Shawn reviewed those forms. Without a single supervisor reviewing these forms,

it seems to matter very little whether Hutchins used a few exclamation points or fourteen of

them. Given the factors relied upon the Commission, the Court finds that Tommy Shehane,

though he may not have observed the condition, had the opportunity to do so and thus had

constructive knowledge of the condition. He admitted that he did not review the forms or

monitor the condition of the cable, notwithstanding the fact that he had been told that a new one

needed to be ordered. It appears that very little supervision was occurring by way of inspection

in this particular work area, or through review of readily available, company-mandated

inspection information. See Jacobs Field Svcs. N.A., supra (discussing factors considered in

determining reasonable diligence).

   Based on the foregoing information, the Court can reach a couple of different conclusions

as to the knowledge of Hutchins and Bundy, neither of which is helpful to Respondent. Because

no one in management reviewed the records made by Hutchins, Bundy, or Shawn Shehane,

management failed to exercise reasonable diligence in supervising its employees, and thus

knowledge is established. On the other hand, if the crane operators are given sole authority to

monitor a crane, with what appears to be little supervision, and can stop work by pulling that

                                           37

crane out of service due to apparent safety hazards, they satisfy the test for being supervisors

under the Act. That conclusion is further supported by the fact that all crane operators were

characterized as competent persons. Accordingly, all crane operators had actual knowledge of

the condition of the cable and had the authority to shut down the crane until deficiencies had

been addressed. (Tr. 495). Accordingly, the Court finds Respondent had both actual and

constructive knowledge of the violation.

     E. Was the Violation Properly Classified as Willful?

     “A willful violation is one committed with either intentional disregard of or plain

indifference to the requirements of the Act or a standard.” J.A. Jones Constr. Co., 15 BNA

OSHC 2201 (No. 87-2059, 1993). “[I]t is not enough for the Secretary to show than an employer

was aware of conduct or conditions constituting the alleged violation; such evidence is already

necessary to establish any violation . . . . A willful violation is differentiated by a heightened

awareness of the illegality of the conduct or conditions and by a state of mind of conscious

disregard or plain indifference.” Hern Iron Works, 16 BNA OSHC 1206, 1214 (No. 89-433,

1993). In other words, Complainant must show that, at the time of the violative act, the

employer was either actually aware that the act was unlawful or “that it possessed a state of mind

such that if it were informed of the standard, it would not care.” Propellex Corp., 18 BNA

OSHC 1677 (No. 96-0265, 1999). Thus, it is not enough to show that Respondent was merely

careless or displayed a lack of diligence. Beta Constr. Co., 16 BNA OSHC 1435 (No. 91-102,

1993). The Commission has found such heightened awareness where an employer has been

previously cited for a violation of the standard in question, is aware of the standard’s

requirements, and is on notice that a violative condition exists. See J.A. Jones, 15 BNA OSHC

2201; D.A. & L Caruso, Inc., 11 BNA OSHC 2138, 2142 (No. 79-5676, 1984).

                                            38

Good faith efforts to correct a particular hazard can negate a claim of willfulness;

however, the Commission applies a test of objective reasonableness to determine whether an

employer acted in good faith. J.A. Jones, 15 BNA OSHC 2201 (citing A.P. O’Horo, 14 BNA

OSHC 2004, 2013 (No. 85-369, 1991); Calang Corp., 14 BNA OSHC 1789 (No. 85-319, 1990).

Thus, an employer “is not necessarily spared from a finding of willfulness by taking any

measure, regardless how minimal, to enhance employee safety.” Id. (citing Coleco Indus., 14

BNA OSHC 1961 (No. 87-2007, 1992).

   Respondent’s treatment of the boom cable is just one example of what appears to be an

institutional disregard for the requirements of the Act. Equally relevant to the analysis of this

issue is how Respondent treated the deficiencies that were uncovered on the auxiliary cable.

Even though Respondent cannot be cited for a violation that may have been present on the

auxiliary cable, the Court is not restrained from discussing such facts in relation to its willfulness

determination. See Cleveland Wrecking Co., 24 BNA OSHC 1103 (No. 07-0437, 2013) (holding

that near-misses occurring outside the statute of limitations are relevant to question of

employer’s knowledge).

   As early as February 19, 2013, Hutchins noted that the auxiliary cable needed to be

replaced and indicated “Repair” in the columns next to the equipment the auxiliary cable was

associated with. At trial he testified that the auxiliary cable met the out-of-service criteria as of

that date. He then proceeded to use the crane four more times, indicating the same problems

each time. (Ex. C-15). On April 2, Hutchins again remarked that the auxiliary cable needed to be

replaced, this time followed by three exclamation points. On April 3, Robert Kindrat performed

an annual inspection, noted that the auxiliary cable is “bad”, but did not take the crane out of

service. In fact, after the annual inspection, the crane was used an additional nine times by

                                             39

Hutchins and Shehane before the auxiliary cable was replaced on April 26, 2013. (Ex. C-15). If

the report of Kindrat is to be believed, the auxiliary cable should have been ordered on April 3,

2013, at the conclusion of his inspection. (Ex. C-17). As the purchase order shows, however,

that cable was not ordered until April 26, 2013. Thus, it took Respondent from February 19,

2013 until April 26, 2013 to replace the auxiliary cable—66 days in total. Even before problems

were reported on the boom cable, Respondent had been confronted with cable deficiencies on the

same crane in the same location within a fairly condensed timeframe. In this instance, the Court

finds Respondent had heightened awareness of the requirements of the standard through Shawn

Shehane, Hutchins, and Kindrat, but also Tommy Shehane, who was contacted for the purposes

of ordering a new auxiliary cable.

   The boom cable was handled in much the same fashion. Kindrat performed and certified

an annual inspection even though he admitted he did not do a complete inspection. He noticed

broken wires in the boom cable, but he did not document them. Kindrat was also informed of

additional broken wires on the cable by Meredith and Hutchins after the annual inspection, but

he did nothing to follow up. Shehane, Hutchins, and Bundy all made notations in the daily log

indicating that the boom cable needed to be replaced. Yet, no one can say when a cable was

actually ordered. According to Kindrat, he told Darryl Meredith to order a new boom cable right

after he performed his annual inspection in early April. (Tr. 275). Unlike the auxiliary cable,

however, there is no documentary evidence to indicate when the cable was ordered, purchased,

or received; rather, the only evidence presented at trial was that the new boom cable was at the

worksite at the time of the accident on May 21, 2013. The Court is perplexed by the testimony

regarding the availability of a new boom cable: If the boom cable was at the worksite on the day

of accident, why was the boom cable not previously replaced, especially since the evidence was

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that the auxiliary cable was ordered and replaced on the same day? Having the replacement

boom cable at the worksite and not installing it would support a further finding that Respondent,

while having heightened awareness of the regulation, decided it was not important enough to

stop work to do the installation.

   Respondent, through its crane operators, who are also considered competent persons and

could stop work on the crane, had heightened knowledge. Each crane operator at the trial

testified that they knew the 3-and-6 criteria. Yet, each crane operator, even after making written

notations in the Daily Inspection forms that the boom cable needed to be replaced, continued to

use the crane. This type of action, continued use of the crane after noting the boom cable needed

to be replaced, clearly demonstrates an utter disregard for the requirements of the Act.

   The institutional failures in this case are rampant. First, Tommy Shehane testified, in no

uncertain terms, that he is not a competent person with respect to cranes, he has not gone through

any crane training, has not operated a crane, and that he places the sole responsibility for the

operation and monitoring of those cranes with the crane operators. (Tr. 119–20, 112). In that

respect, the Court is curious as to how Tommy Shehane could have exercised any supervision

over his foremen or operators if he had not received any training regarding the equipment he was

charged with supervising. See Thomas Industrial Coatings, Inc., 23 BNA OSHC 1521 (No. 06-

1974 et al., 2010) (ALJ) (holding that entrusting supervision over the construction of a scaffold

to a foreman with minimal knowledge of scaffolding standards demonstrates an intentional

disregard for the requirements of the Act). Further, though Tommy may not have been versed in

cranes, surely he had the wherewithal to review the Daily Inspection forms and probe further into

what was contained in them. The Daily Inspections forms clearly state that the boom cable

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needed to be replaced. Clearly, one does not need special training to read that notation and

further inquire as to the basis of the statement.

   Second, both Tommy, the superintendent, and Shawn, the foreman, testified that neither

of them reviewed the Daily Inspection forms because the operation and inspection of the crane

was the sole province of the crane operators. However, as to Shawn, this testimony is troubling

since he was also a crane operator and had access to the Daily Inspection forms of the other

operators but did not review them. In addition, Shawn had two lines of authority upon which he

could act to correct the deficiency—one as a foreman/supervisor and one as a crane operator. As

noted above, the failure of Tommy and Shawn to review the Daily Inspection forms carries two

consequences. One, it illustrates that Respondent was plainly indifferent to the requirements of

the Act in that all of the responsibility for complying with the Act was laid upon the crane

operators. There were multiple signs that indicated the auxiliary and boom cables exhibited

deficiencies, from requests to order a new cable to exclamations calling for its replacement, and

yet no discernible action was taken by Respondent. The treatment of these notations and reports

indicates that the inspection forms appear to be little more than a pro forma method of indicating

that the regulation-mandated inspection occurred. What they reveal, however, is a series of big

problems with no one willing to take responsibility for a solution. Secondly, if the Court is to

accept the argument that knowledge of the crane’s condition is solely limited to those that

operate it by virtue of Respondent’s policy, the Court must conclude that the crane operators are

supervisors. By vesting the crane operators with the responsibility for filling out reports,

reviewing those reports, and taking corrective action to ensure a safe workplace, Respondent has

essentially placed them in a position of supervision.

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In addition to neither Tommy nor Shawn reviewing the Daily Inspection forms, it appears

the Daily Inspection forms were not sent to the Project Office at the end of each week as

required. (Ex. C-15). Instead, the testimony was that the inspection book stayed in the crane cab

until the book was complete and then it was shipped to a central facility for storage. (Tr. 111–12,

162, 163–64). Thus, the completion of the Daily Inspection forms appears also to be perfunctory

since there was no evidence that these forms were reviewed by Tommy or Respondent’s safety

and health department. Had Tommy or the Respondent’s safety and health department reviewed

these forms, hopefully the handling of this matter may have been different. The Court infers that

the reason why these reports were to be sent to the Project Office at the end of every week was to

not only insure that the daily inspections were being done, but also that they are made aware of

any deficiencies and that those deficiencies are corrected. The actions of Respondent clearly

demonstrate the last part of the above inference was not important to them—being made aware

of any deficiency and making sure it was corrected. All Respondent seemed to focus on was the

perfunctory completion of the Daily Inspection forms.

   Also underscoring the institutional failure of Respondent was the Annual Inspection

performed by Kindrat. As previously stated, the Court is dubious about the annual examination

performed by Kindrat. During his annual inspection, which requires that the entire cable be laid

bare, he certified that he performed a complete inspection of the boom cable even though he

admitted at trial that he had not boomed down the crane. Further, though he also testified that he

observed broken wires in the boom cable, he did not document these findings in his annual

report. (Ex. C-17). The auxiliary cable, which was characterized as “bad” and “ordered” in his

inspection report, was not replaced until more than two weeks, fourteen exclamation points, and

nine uses later. (Ex. C-15). Instead, much like the documentation of, and response to, the Daily

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Inspection form, it appears that the annual inspection is viewed as little more than a perfunctory

process attendant to owning and operating a crane. The Court incorporates its complete

discussion of Kindrat’s Annual Inspection report here as further support for a finding of

institutional indifference.

        The Court concludes, pursuant to the admissions of Respondent’s own witnesses, that

Hutchins and Bundy were supervisors. Admittedly, such a finding makes the case for a willful

violation more direct. Hutchins observed more than six broken wires in a lay on the boom cable

on April 18, 2013. He continued to operate the crane and allowed others to do so for a period

lasting longer than a month, even though he knew that the cable met the out-of-service criteria

and after he reported the problems to his superior, Shawn Shehane. This series of events

repeated itself over the course of four months with respect to different cables on the same crane,

with different operators carrying out different types of inspections, and no one claiming authority

or responsibility for any of it. This represents a conscious disregard for the requirements of the

Act at the individual and institutional level.19

     If, as Respondent asserts, the crane operators were the sole arbiters of crane workplace

safety, the operators’ judgment in operating the crane with the cable deficiencies certainly

represents a conscious disregard for the Act. Conversely, and perhaps the more likely case, is

Respondent so poorly managed this process that it was impossible to determine who had

authority and what that responsibility entailed. The bridge superintendent did not have a

working knowledge of cranes, yet he was charged with supervising the crane operators. His

method of supervising the crane operators consisted of placing “sole responsibility” for the safe

19. The Court would note that, although the crane operators testified that they had the authority to remove the crane
    from service, the facts of this case at least call that into question. Hutchins testified that he had previously removed a
    crane from service even though it did not yet meet the out-of-service requirements and that Shawn Shehane
    acquiesced. (Tr. 637). If that were the case, the Court is confused as to why Hutchins failed to act similarly in this
    case.

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    operation of the crane in the hands of the crane operator. In fact, at one point, Tommy testified

that he was waiting on the operators to tell him that the cable had gone bad before they replaced

it. (Tr. 108). According to Tommy Shehane, not even foremen have the authority to remove a

crane from service unless, like Shawn, they are an operator. (Tr. 112). Respondent cannot

disclaim its responsibilities under the Act by making individual employees responsible for

ensuring his employer’s compliance with it. See 29 U.S.C. § 654(a) (the employer is responsible

for providing employment and a place of employment free from recognized hazards and for

complying with standards promulgated under the Act). In this particular case, Respondent did

not merely fail to exercise reasonable diligence, but it failed to implement any meaningful

system whereby the observations and determinations of the crane operators could be observed

and/or verified. Giving the crane operators this broad-reaching power with no possibility of

oversight is little different than directing one’s employees to “be safe” and is an abdication of

responsibility akin to sticking ones’ head in the sand. Notwithstanding other evidence of

Respondent’s safety program, the failure to have a meaningful process for ensuring safe work

practices at a level above the crane operator represents an institutional failure at every level of

supervision and is another indication of Respondent’s conscious disregard of its responsibilities

under the Act. See Rawson Contractors, Inc., 20 BNA OSHC at 1082 (holding that even a good

safety program is insufficient to negate willfulness where there is an absence of any evidence

that the employer enforced its safety rules). Respondent exhibited both heightened awareness of

and utter disregard for the Act and its requirements. Absent a finding of any affirmative defense

being applicable, Citation 2, Item 1 will be affirmed as a Willful violation of the Act.

   As a final note, the Court also finds that Respondent did not act in good faith such that

Complainant’s allegation of willfulness is negated. See J.A. Jones, 15 BNA OSHC 2201

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(holding good faith efforts can negate a claim of willfulness). Merely complying with the

requirements of the Act, as by performing daily and annual inspections, does not, in and of itself,

constitute good faith. In this case, Respondent’s blasé treatment of the daily and annual

inspection forms belies any such claim. Rather, by delegating unfettered (and unsupervised)

power and authority to the crane operators, Respondent acted unreasonably with respect to its

obligations and committed a willful violation of the Act.

V. Affirmative Defenses

   Respondent argues that the violation was the result of unpreventable employee

misconduct. In order to prevail on this defense, Respondent must prove that: (1) it has work

rules designed to prevent the violation; (2) that it has adequately communicated those rules; (3)

that it has taken steps to discover violations; and (4) that it has effectively enforced the rules

when violations are discovered. Burford’s Tree, Inc., 22 BNA OSHC 1948 (No. 07-1899, 2010).

The Court finds that Respondent’s argument fails as to element (3).

   Respondent had a fairly clear set of work rules that applied to when a crane should be

removed from service. (Ex. R-16, R-17). Respondent also has a fairly robust training program,

which was exemplified through multiple exhibits submitted at trial. Further, Respondent

introduced a number of disciplinary documents showing that it punishes violations of other work

rules. (Ex. R-19). The problem, however, is that Respondent utterly failed to take steps to

discover violations. By Respondent’s own admission, it placed sole discretionary authority on

the crane operators. According to the testimony of the COO, the superintendent, and the

foreman, nobody reviews the Daily Inspection forms that are filled out by the crane operators.

Based on Respondent’s narrative, crane operators appear to operate with little direction, other

than where to point the crane, and even less oversight. While the safety program may have been

                                            46

enforced and effective in other areas of Respondent’s operation, there is no clear indication that

such was the case here. That is due, in no small part, to the fact that it appears as if Respondent

willfully blinded itself to the potential for hazardous conditions on the crane. See N & N

Contractors, Inc., 18 BNA OSHC 2121 (holding that employers must exercise reasonable

diligence to discern presence of violations, including adequate supervision of employees,

inspecting work area, anticipating hazards, and taking measures to prevent occurrence of

violations); see also Burford’s Tree, 22 BNA OSHC 1948 (rejecting defense of employee

misconduct because respondent failed to monitor compliance with seatbelt rule on daily basis).

Further, the fact that multiple supervisory level employees engaged in the violative behavior

speaks to the lack of oversight exercised by Respondent and the enforcement of its work rules.

See Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1017, 1991), aff'd

without published opinion, 978 F.2d 744 (D.C. Cir. 1992) (“A supervisor’s involvement in the

misconduct is strong evidence that the employer’s safety program was lax.”).

    Based on the foregoing, the Court finds that Respondent failed to establish the defense of

unpreventable employee misconduct. Accordingly, Citation 2, Item 1 shall be affirmed as a

willful citation.

VI. Penalty

     In determining the appropriate penalty for affirmed violations, section 17(j) of the Act

requires the Commission to give due consideration to four criteria: (1) the size of the employer’s

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the

employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration

and is determined by the number of employees exposed, the duration of the exposure, the

precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co.,

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15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and

its judges conduct de novo penalty determinations and have full discretion to assess penalties

based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel

Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138

(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).

   The Court finds that the violation was of high gravity, high severity, and greater

probability (Ex. R-2). Respondent’s failure to adequately monitor and respond to cable

deficiencies exposed its employees to the very real hazard of a crane collapse. In this case,

Respondent was fortunate that nobody died as a result of it conscious disregard of the Act’s

requirements. For a period of almost four months, one cable or another met the criteria under

which it should have been removed from service. This speaks not only to the hazard’s duration,

but also to the good faith of Respondent in addressing such hazards. The pass-the-buck mentality

exhibited by Respondent’s management does not illustrate the sort of good faith that

Commission precedent indicates would warrant a reduction in penalty. The Court has also taken

into consideration the size of Respondent in assessing the penalty.

   Complainant proposed a gravity-based penalty of $56,000.00 for Citation; however, in

light of the foregoing discussion as to the total institutional failure to comply with the Act and

that four supervisors were vested with the authority to correct any deficiency but chose not to,

the Court hereby assesses a fine of $60,000.00.

                                         ORDER

   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. Based upon the foregoing

Findings of Fact and Conclusions of Law, it is ORDERED that:

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1. Citation 2, Item 1 is hereby AFFIRMED as a willful violation of the Act, and a

   $60,000.00 penalty is ASSESSED.



   SO ORDERED

                                          /s/   Patrick B. Augustine
                                            Patrick B. Augustine
                                            Judge, OSHRC

Date: April 23, 2015
Denver, Colorado

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