National Engineering and Contracting Company

Plain-English summary

National Engineering and Contracting Company was building a highway sound wall and used a boom truck to place concrete traffic barriers. The truck tipped while a barrier was being moved without its front outriggers and rear stabilizers fully extended, killing one employee and seriously injuring another. The Commission held that it could consider National's vindictive-prosecution defense, but rejected the defense because National did not connect OSHA's action to the exercise of a protected right or show that the citation would not otherwise have issued. The Commission found the manufacturer's manual and warnings required all outriggers and stabilizers to be fully deployed, while National's supervisors allowed lifts when they could not be fully extended. It restored the violation from serious to willful under 29 C.F.R. § 1926.550(a)(1) and assessed the maximum $70,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(1); 29 C.F.R. § 1926.550(b)(2)
• Outcome: Citation 2, item 1 was affirmed as willful under 29 C.F.R. § 1926.550(a)(1), and a $70,000 penalty was assessed.
• Key point: Repeatedly allowing crane lifts contrary to explicit manufacturer instructions and posted warnings established plain indifference to employee safety.

Full text (OSHRC public release)

                           United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                      1120 20th Street, N.W., Ninth Floor
                         Washington, DC 20036-3419

SECRETARY OF LABOR,
Complainant,
v.
NATIONAL ENGINEERING AND OSHRC Docket No. 94-2787
CONTRACTING COMPANY,
Respondent,

L.I.U. OF N.A., LOCAL 265,
I.U.O.E., LOCAL 18,
Authorized Employee
Representatives.

                                     DECISION

Before: WEISBERG, Chairman; GUTTMAN, Commissioner.
BY THE COMMISSION:
At issue is whether Administrative Law Judge Paul L. Brady erred in ruling that the
Commission is without jurisdiction to entertain the affirmative defense of vindictive
prosecution and in reducing the classification of citation 2, item 1 from willful to serious.
For the reasons that follow, we find that the Commission has jurisdiction to entertain the
affirmative defense of vindictive prosecution, but find that Respondent has failed to establish
 2

that defense here. We also find that the judge erred in reducing the classification of citation 2
item 1. We affirm the citation item as willful and assess the proposed penalty of $70,000.
I. Background
National Engineering and Contracting Company (“National”) is headquartered in
Strongsville, Ohio and performs road work projects in Ohio and neighboring states. It was the
general contractor under a contract with the Ohio Department of Transportation to build a sound
wall alongside a six mile stretch of Interstate 71 near Cincinnati. During the evening, concrete
traffic control barriers were placed along the berm line of the highway to provide a barrier
between the live traffic and the sound wall construction. The concrete barriers came in 10 and
12 foot lengths and estimates of their weight ranged from 3,700 pounds up to two tons.
On the evening of August 16, 1994, National was placing a short section of concrete
barriers towards an exit ramp with a 22-ton flatbed truck with a Manitex 2200 series crane
boom mounted behind the truck’s cab. National had planned to move roughly three loads of
concrete barriers that night (the equivalent of approximately 250 to 300 feet of barriers).1 The
22-ton truck could carry up to eight concrete barriers on its bed and had outriggers towards the
front of the truck bed and stabilizers at the rear.
At least six National employees were involved in placing the barriers. Employee Lloyd
Lee’s job was to shine a flashlight between the concrete barriers so that the other workers could
line them up and connect them together. The barriers were being placed from the passenger side
of the truck. William Sanders, a laborer, climbed up into the cab to move the truck to place the
last barrier left on the bed. The outriggers, which were lifted in preparation for the move
forward, could have been put down if the boom truck was moved 10 feet further forward.
However, someone (the record is unclear as to whom) said that the truck was fine where it was,
so Sanders did not move the truck. At that point, both outriggers were up and the rear stabilizers
were down but not extended as required by the manufacturer’s manual. Crane Operator Mark

1
National used different types of equipment to move the concrete barriers depending on how
many barriers were to be set in one evening. For placing long sections of barriers, National
would use a large flatbed trailer to deliver the concrete barriers, and an excavator, backhoe or
crane to position them.
 3

Foster decided to go ahead and position the last concrete barrier from the boom truck’s bed onto
the road.2 The boom truck flipped to its side when Foster was setting the last barrier. Employee
Lloyd Lee was caught between the concrete barrier and boom truck and was killed. Crane
Operator Foster suffered a severe hematoma and was off work for sixteen weeks.3
Following an inspection, OSHA cited National for one willful and five serious violations
of the Act. The serious violations are not at issue. Willful Citation 2, Item 1, alleged a violation
of 29 C.F.R. § 1926.550(b)(2), or in the alternative 29 C.F.R. § 1926.550(a)(1), for National’s
failure to extend and set the outriggers and stabilizers on the boom truck as specified by the
manufacturer. National contested the citations and proposed penalties. At the hearing, National
attempted to introduce evidence on the affirmative defense of vindictive prosecution that it had
raised in its Answer. The Secretary objected to its introduction4 and the judge ruled that he was
without jurisdiction to entertain the affirmative defense. However, the judge permitted National
to make a proffer of its evidence on the vindictive prosecution issue, comprised of testimony,
affidavits and exhibits.5 In its Post-Hearing Brief, National asked the judge to reconsider his
ruling but he declined to do so in his decision.
The judge found that National had violated section 1926.550(b)(2) because it was
undisputed that “the load exceeded the crane’s rated load without outriggers and that all the

2
Foster testified as follows:
A. I had set three barrier[s] already. I knew from running the machine that I
could set four, but with them being ten-foot long, I knew I had [to] pick the right,
front outrigger up to get it into place.
Q. In other words, the right, front outrigger, the one on the passenger's side was
sitting where you would have placed the next concrete barrier?
A. Yes, ma'am. So, I picked it up to get it out of the way.
3
Night Superintendent Andrew Seeger testified that another laborer had “a little shoulder
problem” as a result of the accident.
4
The Secretary now agrees that the Commission can entertain an affirmative defense of
vindictive prosecution.
5
National has not requested that the record be reopened to receive additional evidence on its
vindictive prosecution defense. Instead, it claims that the evidence submitted has “established
its defense in the case.”
 4

outriggers should have been extended.” The judge rejected National’s unpreventable employee
misconduct defense, finding that National failed to show what work rule Foster violated by
performing the lifts without the outriggers extended, and that National “permitted lifts to be
made with the outriggers undeployed.” The judge held that it was not a willful violation,
although he found that “[i]t is a close question.” He found that “the evidence failed to show a
‘heightened awareness’of the illegality of making the lifts without extending all the outriggers
or a conscious disregard or plain indifference to employee safety.” The judge affirmed the
violation as serious and assessed a penalty of $10,000, although the statutory maximum for a
serious violation is $7,000. See Section 17(a) of the Act, amended by Omnibus Budget
Reconciliation Act of 1990, Pub. L. No. 101-508, 3101 (1990).
II. Vindictive Prosecution
Vindictive prosecution is a prosecution to deter or punish the exercise of a protected
statutory or constitutional right. United States v. Goodwin, 457 U.S. 368, 372 (1982). Although
there is no uniform test for proving that a prosecution was vindictive, a threshold showing
common to all tests is evidence that the government action was taken in response to an exercise
of a protected right.6 If governmental misconduct is found, the court can dismiss the vindictively

6
The two circuits to which this case may be appealed formulate the vindictive prosecution
defense differently. In the Sixth Circuit, the claimant must show: (1) exercise of a protected
right; (2) the prosecutor’s “stake” in the exercise of that right; (3) the unreasonableness of the
prosecutor’s conduct; and, presumably, (4) that the prosecution was initiated with the intent to
punish the plaintiff for exercise of the protected right. Futernick v. Sumpter Township, 78 F.3d
1051, 1056 n.7 (6th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 296 (1996). The District
of Columbia Circuit has stated that there are two ways in which prosecutorial vindictiveness
may be shown: (1) actual vindictiveness as shown through objective evidence that a prosecutor
acted in order to punish a respondent for standing on his legal rights; (2) a presumption of
vindictiveness demonstrated by facts that indicate a “realistic likelihood” of vindictiveness. If
established, the government then must show objective evidence justifying the prosecution. If
the government provides such evidence, respondent must show that the evidence is pretextual
and that actual vindictiveness occurred. If the government does not provide such evidence, then
vindictive prosecution must be found. United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir.
1987), cert. denied, 485 U.S. 940 (1988).
 5

motivated charge or the entire action. United States v. Meyer, 810 F.2d 1242, 1249 (D.C. Cir.
1987), cert. denied, 485 U.S. 940 (1988).
National’s claim of vindictive prosecution is based on a number of factors. First among
them is its claim that officials both in the Charleston, West Virginia and Columbus, Ohio
OSHA offices either testified, stated in depositions, or told witnesses that National was a “bad
actor” and that OSHA would “play hardball” with National and was going to “get them.”
National also claims that OSHA’s Columbus Area Office withdrew all citations and proposed
penalties in Docket No. 92-2085 after National discovered through the compliance officer’s
deposition that the agency allegedly had an improper motivation for pursuing the inspection.7
National also relies on its request for a warrant in Docket Nos. 93-0512, 93-0513, 93-0582 and
93-0583, which the OSHA Charleston, West Virginia office issued in connection with an
inspection of a worksite of National and it subsidiary, Tri-State Construction Company, in
Goldtown, West Virginia.8 National also points to OSHA’s maintenance of a computerized
history database that “listed National Engineering as having violated multiple standards and as
having been assessed multiple penalties when, in fact, various citations had been withdrawn by
the Secretary or otherwise vacated by the Commission.” It notes that the Cincinnati Area Office
had a printout from this database showing an erroneous history of National’s violations of the
Act and penalties which it paid and that it was included in the file reviewed by Cincinnati Area
Director William Murphy. National also relies on the quick issuance of the citations in this case,
eight days after the investigation was started, on the testimony from the compliance officer that
felt he was under pressure to get the citations out, and on the hand-delivery of the citations.

7
National claims that at the deposition, the compliance officer admitted that he had been told
by his superiors that National was a “bad actor” and that he was told to “get them.”
8
On review, National at first suggests that the Secretary withdrew the Goldtown citations against
it and its subsidiary Tri State Construction Company because of what discovery revealed about
OSHA’s alleged improper motives. It later modified this assertion to the question, “[w]ere these
citations and proposed penalties withdrawn because of a discovery dispute, or because the
Secretary did not want additional facts of her vindictiveness coming to the surface?”
 6

   We conclude that National has failed to make the threshold showing required to establish

vindictive prosecution. Although National appears to receive a good deal of attention from
OSHA, it has not identified any protected right it exercised that caused the Secretary to initiate
this inspection or prosecution, or to cite the violation before us as willful. National fails to show
that the Secretary’s request for a warrant during the 1992 inspection in Goldtown, West
Virginia, has any connection to this case. “The mere fact that this prosecution followed the
exercise of certain procedural rights in other, unrelated cases is insufficient to raise the
appearance of vindictiveness.” United States v. Robison, 644 F.2d 1270 (9th Cir. 1981).
National’s prior history of challenging OSHA’s inspections and citations does not alone grant
it immunity from being cited by OSHA. Cf. United States v. Adams, 870 F.2d 1140, 1145 (6th
Cir. 1989) (“the mere filing of a lawsuit against an agency of the federal government does not
give anyone a license to break the law and insist that any ensuing prosecution be quashed as
retaliatory”). The alleged statements and actions by OSHA representatives that National claims
demonstrate the Secretary’s animus to it, even if true, are insufficient by themselves to support
a finding of vindictive prosecution. In addition to evidence of animus or retaliatory motive,
National must produce evidence tending to show that it would not have been cited absent that
motive.9 See United States v. Benson, 941 F.2d 598, 612 (7th Cir. 1991) (prosecutor’s calling
defendant a “common criminal”is not enough to require further discovery concerning vindictive
prosecution; “[a]lso undercutting any claim that the prosecution resulted from [the prosecutor’s]
pique is the fact that Benson has not shown that it is unusual for the government to prosecute
people who avoid paying taxes on over $100,000”). While it is possible to raise a legitimate
question of vindictive prosecution based on the exercise of a protected right in another
litigation, vindictive prosecution will not be presumed if the prosecution would have taken place

9
National also claims that the Cincinnati area director wanted “to blacken National Engineering
in the eyes of the public.” It cites to a videotape of a local Cincinnati television broadcast of
the National Engineering accident where the area director is interviewed about National’s
conduct and the area director refers to what National calls the “false history” of its past
violations and provides the interviewer with that information. However, this alleged animus,
with nothing more, is insufficient to prove a vindictive prosecution.
 7

regardless of the exercise of a protected right in the other litigation. See United States v. Adams,
870 F.2d 1140, 1146 (6th Cir. 1989) (case remanded for discovery on “narrow issue of whether
the EEOC, acting on an improper motive, induced the Department of Justice to institute a
prosecution that would not otherwise have been undertaken”).
Even if we were to assume that National had shown that an exercise of a protected right
preceded the inspection, or that the proffered facts present a “realistic likelihood” of
vindictiveness, see Meyer, we find no basis to conclude that the Secretary’s prosecution of
National in this case was unreasonable. OSHA’s decision to prosecute here appears to be based
upon the normal factors ordinarily considered in determining what course to pursue. See United
States v. DeMichael, 692 F.2d 1059, 1062 (7th Cir. 1982), cert. denied, 461 U.S. 907 (1983);
see also United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir. 1989), cert. denied, 493 U.S. 995
(1989) (no vindictive prosecution when prosecutor’s decision to prosecute is based on usual
determinative factors). The OSHA inspection in this case was conducted as a result of a fatality
that occurred at National’s worksite. The willful designation and the proposed penalty were
based reasonably on evidence OSHA developed from its investigation. We find no evidence of
influence from external factors.10

10
The reasons Compliance Officer Collier gave at the hearing for why he and his supervisor,
James Washam, recommended a willful violation were as follows:

   We felt the employer knew of the existence of the hazard through warnings on
   the crane, warnings on the operating manual, warnings in their Spotlight on
   Safety program, the Company's awareness of OSHA standards and ANSI
   standards. Also the operator's concern. The operator had to our knowledge
   expressed a concern over using this piece of equipment because he had a concern
   about its stability. He didn't feel that it was a stable piece of equipment to be used
   this way.

The Secretary cites to a passage in the “Spotlight on Safety” employee handbook that both
management and employees received at least since 1993 that states on p. 11 under the heading
“CRANES - HOISTS - ELEVATORS - CONVEYORS” as follows: “2. Outriggers must be
fully extended before lifting with cranes or hoists.” However, the record shows that with some
equipment other than the boom truck, such as the Grove crane, outriggers do not need to be
(continued...)
 8

                                III. Citation 2, Item 1
                                            A.
   In willful citation 2, item 1, the Secretary alleged that National violated 29 C.F.R.

§ 1926.550(b)(2)11 and, in the alternative, 29 C.F.R. § 1926.550(a)(1)12 for using the boom truck
“to lift concrete barriers on the site without the outriggers and stabilizers extended and set as
specified by the manufacturer.” The judge affirmed a serious violation of
section 1926.550(b)(2) and did not discuss the alternate pleading. National first argues that the
judge erred in reducing the classification from willful to serious because the standard the judge
relied on, 29 C.F.R. § 1926.550(b)(2), which cites to ANSI B30.5-1968, is inapplicable to the
cited boom truck so that “there could be no violation, willful or otherwise.”13 National

10
(...continued)
employed to perform some lifts.
11
The standard provides:
§ 1926.550 Cranes and derricks.
....
(b) Crawler, locomotive, and truck cranes.
....
(2) All crawler, truck, or locomotive cranes in use shall meet the applicable
requirements for design, inspection, construction, testing, maintenance and
operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler,
Locomotive and Truck Cranes. . . .

Section 5-3.2.3 of ANSI B30.5-1968 provides:
i. Outriggers shall be used when the load to be handled at that particular radius
exceeds the rated load without outriggers as given by the manufacturer for that
crane.
12
The standard provides:
§ 1926.550 Cranes and derricks.
(a) General requirements. (1) The employer shall comply with the manufacturer's
specifications and limitations applicable to the operation of any and all cranes
and derricks. . . .
13
Section 5-0.1 of ANSI B30.5-1968 describes the scope of ANSI B 30.5-1968 as follows:
Volume B30.5 applies to . . . cranes . . . which are basically powered by internal
(continued...)
 9

acknowledges that this argument was not presented before the judge.14 Under Commission Rule
92(c), 29 C.F.R. § 2200.92(c),15 we do not normally review an issue if it was not argued before
the judge and the opposing party did not have the opportunity to litigate it. See, e.g., Trico
Technologies Corp., 17 BNA OSHC 1497, 1503-04, 1996 CCH OSHD ¶ 31,009, pp. 43,224-5

13
(...continued)
combustion engines or electric motors and which utilize drums and ropes . . . .
Supplements covering full hydraulic cranes and side boom cranes will be
developed at a later date.

(emphasis added). National claims that “[h]ydraulic boom trucks, like the Manitex 2284 [the
crane at issue], were only first developed in the 1970’s” and “were not even in existence at the
time that ANSI B30.5 was approved in 1968.” It asserts that ANSI B30.5-1982, approved in
1982, would include the cited boom truck because that ANSI standard no longer excludes
hydraulic cranes from its coverage.
14
National acknowledges that this issue was not briefed below but it argues that nevertheless,
the Commission should address this issue, citing to F.R.C.P. 12(h)(3) and Van Dunser v.
Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990). However, these cites only require that federal
courts permit any party to challenge the existence of subject-matter jurisdiction at any time in
the proceedings. The issue of whether the Secretary established that the cited standard applies
is not related to the Commission’s having subject-matter jurisdiction in this case. National
claims that it “expressly preserved the issue in its First Defense that the Secretary failed to state
a claim for relief under the standard.” National’s “First Defense” in its answer only states that
“[t]he Complaint fails to state a claim upon which relief may be granted.” It is unclear how the
vague “First Defense” could have “expressly preserved” this issue.
15
Commission Rule 92(c), 29 C.F.R. 2200.92(c), provides:
§ 2200.92 Review by the Commission.
....
(c) Issues not raised before Judge. The Commission will ordinarily not review
issues that the Judge did not have the opportunity to pass upon. In exercising
discretion to review issues that the Judge did not have the opportunity to pass
upon, the Commission may consider such factors as whether there was good
cause for not raising the issue before the Judge, the degree to which the issue is
factual, the degree to which proceedings will be disrupted or delayed by raising
the issue on review, whether the ability of an adverse party to press a claim or
defense would be impaired, and whether considering the new issue would avoid
injustice or ensure that judgment will be rendered in accordance with the law and
facts.
 10

(No. 91-0110, 1996); Seyforth Roofing Co., 16 BNA OSHC 2031, 2033, 1993-95 CCH OSHD
¶ 30,599, p. 42,380 (No. 90-0086, 1994); Peavey Co., 16 BNA OSHC 2022, 2025 n.6, 1993-95
CCH OSHD ¶ 30,572, p.42,323 n.6 (No. 89-2836, 1994).
Here, however, the standard the Secretary cited in the alternative also requires National’s
compliance with the manufacturer’s specifications, but does not exclude “full hydraulic cranes”
from its scope.16 National has known of the alternative standard since the original citation, and
did not object to the evidence presented by the Secretary to prove a violation of both standards.
On review, National does not dispute that its operation of the boom truck did not comply with
the manufacturer’s specifications as shown by the operator’s manual. Accordingly, because the
citation alleged a violation of section 1926.550(a)(1), which clearly applies to the cited boom
truck, we need not address the applicability of section 1926.550(b)(2).
B.
A willful violation is one which is committed with “intentional, knowing or voluntary
disregard for the requirements of the Act, or with plain indifference to employee safety.” Conie
Construction Inc., 16 BNA OSHC 1870, 1872, 1993-95 CCH OSHD ¶ 30,474, p. 42, 089 (No.
92-0264, 1994), aff’d, 73 F.3d 382 (D.C. Cir. 1995). “It is differentiated from other types of
violations by a ‘heightened awareness -- of the illegality of the conduct or conditions -- and by
a state of mind -- conscious disregard or plain indifference.’” General Motors Corp., Electro-
Motive Div., 14 BNA OSHC 2064, 2068, 1991 CCH OSHD ¶ 29,240, p. 39,168 (No. 82-630,
1991) (consolidated).
The critical provision that National failed to comply with is the clear command in the
manufacturer’s manual to have all outriggers and stabilizers fully deployed whenever the boom
is used. The manufacturer’s operating manual prohibits operation of the boom with the truck’s

16
Because we find that the alternate pleading is more applicable, we do not reach the issue of
whether section 1926.550(b)(2) covers the cited boom truck.
 11

outriggers retracted and requires that the stabilizers be fully extended prior to operating the
boom.17 In addition, there are two separate warnings posted on the truck itself.18

17
The operating manual for the boom truck specifically requires as follows:

      -For 2200 Series, fully extend stabilizer boxes. Do not operate with boxes
      partially extended.
      ....
      Setting the Outriggers and Stabilizers
      1. All crane operations shall be performed with the outriggers and the stabilizers
      extended on a firm foundation so the crane is level.

      On the 2200 Series, the stabilizer boxes shall be fully extended.
      Crane operations with outriggers or stabilizers retracted is prohibited.
      (emphasis original)
      ....
      DANGER: Exceeding jib ratings or failing to comply with jib operating
      conditions and restrictions given on Capacity Chart will result in structural
      damage to crane components, collapse of crane, or tipping.

      Read all instructions on Capacity Chart before handling any load with jib.

      Do not attempt to erect jib until outriggers and stabilizers are properly set.
      Do not retract outriggers and stabilizers until jib is stored and boom is
      lowered onto boom rest.

18
One posted warning stated:
DANGER
YOU MUST NOT OPERATE THIS CRANE UNLESS:
....
2. YOU KNOW AND FOLLOW THE SAFETY AND OPERATING
RECOMMENDATIONS CONTAINED IN THE MANUFACTURER’S
MANUALS, YOUR EMPLOYER’S WORK RULES AND APPLICABLE
GOVERNMENT REGULATIONS.

The other posted warning stated:
CAUTION
....
DO NOT USE THIS EQUIPMENT EXCEPT ON SOLID, LEVEL SURFACE
WITH OUTRIGGERS PROPERLY EXTENDED . . . .
(continued...)
 12

      In finding the violation to be serious and not willful, Judge Brady concluded that the

ANSI standard referred to by the standard “does not mandate that outriggers be used for every
lift, only that they be used ‘when the load to be handled at that particular radius exceeds the
rated load without outriggers as given by the manufacturer for that crane.” We find that the
judge erred because the manufacturer prohibits any lifts by the cited crane without outriggers
and stabilizers extended. National’s Night Superintendent Andrew Seeger acknowledged that
the boom truck did not have a load chart for its operation without outriggers and stabilizers
extended, and that the only lift chart it had was for when the outriggers and stabilizers were
extended. Therefore, any use of the boom truck without all the outriggers extended would
“exceed the rated load” for the crane. Not only did Foster attempt to lift without all the
outriggers extended, he made lifts on several occasions without any of the outriggers extended.
Based on our review of the record, we conclude that the Secretary has established that
National was plainly indifferent to employee safety.19 Despite the prohibitions in the manual
and warnings posted on the crane explicitly requiring that the outriggers be extended prior to
using the boom, National’s policy was to perform lifts regardless of whether the outriggers or
stabilizers could be extended.20 Crane Operator Foster himself had previously set the concrete

18
(...continued)
BEFORE OPERATING THIS CRANE, REFER TO MAXIMUM LOAD
(CAPACITY) CHART ON CRANE FOR OPERATING (LOAD)
LIMITATIONS.
19
The Secretary claims that “[t]he OSHA regulations and the incorporated ANSI standard were
known to [National] as a corporate entity both because the Ohio Department of Transportation
contract for the I-71 project stipulated that the contractor must comply with OSHA regulations.”
We do not find that this is enough to support a conscious disregard of sections 1926.550(b)(2)
or (a)(1), and the record does not show that National actually knew of the cited standards.
20
Compliance officer Collier summarized National’s policy as follows:
The policy as related to me by Mr. Seeger and Mr. Ruf was that they use all the
outriggers and stabilizers fully extended to set when they can, but when there is
a physical barrier, when there is a problem for one reason or another [,] if there
is [a] problem and they cannot do it, then they set or use them as they can with
as many as they can use that aren’t obstructed.
 13

barriers off the side of the truck in the same manner that caused the accident, with the boom
truck’s front outriggers in and the back stabilizers down but not extended, “four or five other
times on that project.”21 Foster testified that Foreman Ruf was present at those times,22 and
Foster was never told by anyone in National’s management not to operate the boom truck in that
manner. Night Superintendent Seeger testified that they would use the boom truck on “more
than two or three” occasions in locations where it was not possible to put down the front
outriggers and the back stabilizers in moving concrete barriers with a boom truck. Foreman Ruf
also testified that they would use the outriggers and stabilizers if possible.23 Both Ruf and

21
Although National claims that “[o]n no occasion, however, did Mr. Foster or any other
operator make a pick in the manner Mr. Foster did the night of the accident; i.e., make a pick
from the side of the boom truck where the outrigger supporting that side had been retracted,”
the testimony shows otherwise:

  Q I had previously asked you if you had ever operated a boom truck this way before,

and you indicated that there were four or five times?
A. Yes.
Q. Now, you were referring to the boom truck that you operated that night; were you
not?
A. Yes, ma'am. As well as --
Q. And that was in moving concrete traffic barriers?
A. Yes, ma'am.
Q. And was that in setting barriers over the side of the truck?
A. Yes, ma'am.
22
Foster’s testimony is unrebutted. Foreman Ruf testified as follows:
Q. Now, have you ever seen an operator prior to August 16, 1994, make a pick without
the outrigger out on the side he was making the pick from?
A. Do you mean on the load side?
Q. Yes, on the load side.
A. It's possible I can't think of any one that comes to mind.
Q. But you have seen that?
A. No, I'm not saying that. I'm saying it's possible. We have picked off the rear before.
23
Ruf testified as follows:
Q. All right, now, at what times in moving the concrete barriers were the front
outriggers and/or the back stabilizers not fully extended? What situations was
that condition present?
(continued...)
 14

employee William Sanders testified that in situations where there was not enough room, the
boom was used without the front outriggers and rear stabilizers fully extended. Crane Operator
Foster testified that the normal procedure was to fully extend the outriggers and stabilizers
“when you have room.” National’s Safety Director William Bunner testified that the boom
truck’s operation manual does not need to be followed because the manufacturer’s requirement
stated in the Manitex operator’s manual is only a “general limitation.” Bunner claimed that
“[t]he manufacturer's operations manual does not speak to each event that normally occurs on
a construction project, nor does it address all the acceptable safety practices that may be used
that experts have identified for years.” However, National did not introduce evidence to show
that “experts” would agree that the cited boom truck could ever be used without the outriggers
and stabilizers extended.24 The Secretary’s expert witness, mobile crane instructor Donald
Frantz, testified that the boom truck’s manufacturer’s specifications are that lifts can be
performed only with the outriggers fully deployed and the stabilizers extended and down. The
record demonstrates that had the truck been moved forward 10 feet, the concrete barrier could
have been put in place with the truck’s outriggers and stabilizers fully extended. We can only
conclude that National’s failure to comply establishes plain indifference. See Morrison-Knudsen

23
(...continued)
A. If we have live traffic on one side and an obstruction like a barrier wall or
something like that to keep it from coming down the other side, but the back ones
are always down.
Q. But not necessarily fully extended?
A. No, not necessarily.
24
Other pieces of equipment at the site, such as the Grove crane, had lift charts that permitted
them under certain circumstances to perform lifts without using their outriggers. However, the
cited boom truck only had a lift chart for performing lifts with the outriggers and stabilizers
extended. Bunner noted that National had in February, 1995 a seminar on cranes covering “rule
of thumb applications to operations,” where the instructor allegedly stated that the use of cranes
without all outriggers down as long as they are down on the “strong side of the rig” is
acceptable. However, there is no evidence that the seminar addressed the use of boom trucks,
where the manufacturer requires all outriggers and stabilizers fully extended, as opposed to such
devices as the Grove crane, which in some circumstances permits lifts to be conducted without
outriggers down.
 15

Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1123, 1993-95 CCH OSHD ¶ 30,048,
pp.41,280-81 (No. 88-572, 1993) (willfulness can be established by a showing that “an
employer harbored a ‘state of mind . . . such that, if he were informed of the [applicable
standard], he would not care’”), citing Brock v. Morello Bros. Constr., 809 F.2d 161, 164 (1st
Cir. 1987). See also Williams Enterprises Inc., 13 BNA OSHC 1249, 1257-8, 1986-87 CCH
OSHD ¶ 27,893, p. 36,590 (No. 85-355, 1987) (owner’s continued preference for violative
practice instead of what the standard requires shows indifference).
IV. Penalty
Having found the violation to be willful, we must now assess a penalty. The Secretary
proposed a penalty of $70,000. Although National was advised in the Briefing Notice “that
when the merits or characterization of an item are before the Commission for review, the
appropriateness of the penalty also is subject to review,” it did not address the proposed penalty
amount on review. In assessing penalties, the Commission gives due consideration to the size
of the employer’s business, the gravity of the violation, the employer’s good faith, and his
history of previous violations. Section 17(j) of the Act, 29 U.S.C. § 666(j). These factors are
not necessarily accorded equal weight. Generally, gravity is the principal factor in assessing a
penalty. Trinity Indus., Inc.,15 BNA OSHC 1481, 1483, 1991-93 CCH OSHD ¶ 29,582, p.
40,033 (No. 88-2691, 1992). The gravity of a violation depends on such matters as the number
of employees exposed, the duration of the exposure, the precautions taken against injury, and
the likelihood that any injury would result. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214,
1991-93 CCH OSHD ¶ 29,964, p.41,033 (No. 87-2059, 1993). The gravity here is severe
because the violation directly resulted in the death of one employee and the serious injury to
another. At least four other employees were working around the boom truck when it flipped to
its side, and were exposed to the hazard as the barriers were being placed. National did not take
any precautions against injury. National’s disregard for the safety of its employees entitles it
to no credit for good faith. National operated the boom truck without regard for whether or not
the outriggers should be extended despite warnings against such operations posted on the truck
itself. National is a large employer, with 456 employees, and National has a history of
 16

violations.25 In our view, none of the 17(j) factors would support mitigating the penalty and
accordingly we assess the maximum penalty of $70,000.
V. Order
We affirm citation 2, item 1 as a willful violation of 29 C.F.R. § 1926.550(a)(1) and
assess a penalty of $70,000.

                                                    /s/
                                                    Stuart E. Weisberg
                                                    Chairman




                                                    /s/
                                                    Daniel Guttman

Dated: September 30, 1997 Commissioner

25
As part of its proffer for its vindictive prosecution defense, National submitted a computer
printout which allegedly contained numerous erroneous entries. However, National does not
dispute that some of the entries are valid.