Boh Brothers Construction Co., L.L.C.

Plain-English summary

Boh Brothers was a heavy-construction contractor building a power plant in Alabama. A crew lifted six steel pipes weighing about 12,000 pounds in an unbalanced basket hitch, and the foreman approached and tried to guide the suspended load by hand. Pipes shifted, and the load crushed the foreman against the truck, killing him. The judge held that the actual sling configuration was a basket hitch regardless of what the crew intended, and rejected the employee-misconduct defense because approaching and hand-guiding suspended loads was routine and Boh had not shown effective enforcement of its rules. Both serious violations were affirmed with penalties of $4,500 each.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.251(c)(8); 29 C.F.R. § 1926.550(a)(19)
• Outcome: Affirmed. Both serious lifting violations were affirmed, with total penalties of $9,000.
• Key point: Rigging is judged by its actual configuration, and written safety rules do not establish an employee-misconduct defense without effective monitoring and enforcement.

Full text (OSHRC public release)

Secretary of Labor,                        :
               Complainant,                :
                                           :
                 v.                        :         OSHRC Docket No. 99-1590
                                           :
Boh Brothers Construction Co.,             :                       EZ
L.L.C.,                                    :
              Respondent.                  :


Appearances:

          Kathleen G. Henderson, Esquire                      Mr. John Lipani
              Office of the Solicitor                           Vice-President
              U. S. Department of Labor                         Boh Brothers Construction Co., L.L.C.
                  Atlanta, Georgia                                 New Orleans, Louisiana
                  For Complainant                                     For Respondent


Before:       Administrative Law Judge Stephen J. Simko, Jr.

                                       DECISION AND ORDER

          Boh Brothers Construction Co., L.L.C. (Boh), contests a two-item citation issued by
the Secretary on August 12, 1999. The Secretary issued the citation following an inspection
conducted by Occupational Safety and Health Administration (OSHA) compliance officer
Brian Smith from June 10 to August 12, 1999. Smith’s inspection was triggered by a fatal
accident at the Alabama Power Company in Theodore, Alabama, when one of Boh’s employees
was crushed by a load of steel pipes that slipped while being lifted with a wire rope sling.
          The Secretary alleges that Boh committed a serious violation of 29 C.F.R. §
1926.251(c)(8), for failure to balance loads to prevent slippage in slings using a basket hitch
(item 1); and of 29 C.F.R. § 1926.550(a)(19), for failure to keep employees clear of suspended
loads about to be lifted or suspended.


          The Commission designated this case as an E-Z Trial case. Boh stipulated to
jurisdiction and coverage (Tr. 5). A hearing was held in this matter on January 25, 2000. Boh
asserts the affirmative defense of unpreventable employee misconduct with respect to item 2.
The parties did not file post-hearing briefs. For the reasons set out below, items 1 and 2 are
affirmed.

                                           Background

       At the beginning of the hearing the parties stipulated to the following (Tr. 5-7):
             Boh Brothers is an employer over the following persons: Wallace
       Delancy, Dan Headrick, Craig Lee, Don Adams, Vic Gremillion, Ray Arsenic,
       and Michael Pool.

              . . . Mr. Delancy was a supervisory employee over Boh Brothers’s
       workers at the site, the site being Alabama Power Company, Generation Unit,
       Highway 198, Theodore, Alabama, on June the 10th, 1999. . . . [O]n June 10th,
       1999, Mr. Delancy was fatally injured when a load being lifted by a crane hit
       pipes on a flatbed truck causing pipes to fall off the truck and hit Mr. Delancy.

              . . . Boh Brothers was required to comply with the standards alleged,
       being 29 CFR, §§ 1926.251(c)(8) and 1926.550(a)(19). However, it is
       understood that Boh Brothers has contested the allegations.

               . . . [T]he piles or pipes on the truck were bundled together in bundles of
       three with metal straps on the flatbed truck. . . . [T]he piles or pipes were stacked
       in three layers on the back of the flatbed truck with six piles on the bottom layer,
       six piles on the middle layer, and three piles on the top layer.

               . . . [T]he bottom two layers consisted of two sets of bundles of piles
       with each set consisting of three piles bundled together with metal straps. . . .
       [T]he first layer of pipes was lifted from the truck by means of a forklift.

       Boh is a heavy construction contractor whose headquarters are in New Orleans,
Louisiana. It builds roads, bridges, chemical plants, oil refineries, and other large-scale
projects, predominantly along the Gulf Coast. Boh had been in business for 91 years at the time
of the hearing. In June of 1999, Boh employed 1,600 employees (Tr. 19).
         The Alabama Power Company had hired Boh to construct an electrical power plant at its
site in Theodore, Alabama. One of the initial phases of the project was to drive approximately
500 steel pipes into the ground that would provide support for the foundational slab of the new
plant. (The pipes were also referred to as “piles” or “pilings”) (Tr. 27). Each pipe was 60 feet
long and 14 inches in diameter, and weighed approximately 2,000 pounds (Tr. 28). The pipes
were brought in by truck. Boh employees unloaded the pipes with mechanical help, either a
forklift or a crane (Tr. 29).
         On the morning of the accident, foreman Wallace Delancy and his crew of six
employees were in the process of unloading the day’s first truckload of pipes. Boh had been on
the site for approximately one month and had driven in approximately 150 pilings by that time
(Tr. 69-70, 145-146). Boh employees rigged two slings around a load of six pipes. One eye on
the end of each sling was attached to a crane cable hook. The eye on the opposite end of each
sling encircled the crane cable above the hook. This configuration did not allow the two slings
to close down around the load, but created a loose cradle to support the load when lifted by the
crane.
         Crane operator Daniel Headrick testified that Delancy signaled Headrick to lift the load
(Tr. 162). Headrick noticed “that the load was picking up unevenly. . . . It was picking up
toward the front of the truck cab a little higher than the backside. It was coming up unlevel”
(Tr. 163). Headrick stopped the lift. At the hearing, Headrick stated (Tr. 164):
         I hollered at Wallace [Delancy] and told him that it didn’t look right to me. And
         he said, it looks good. Don’t worry about it. He’s got it. He knew what he was
         doing and he figured it would be okay. And he continued to give me the signal
         to lift up. . . . I lifted up some more. . . . [Delancy] stopped me from lifting up
         and started me to boom up.

         As Headrick boomed up, Delancy signaled him to stop. Delancy moved to within two
feet of the load and looked at it. While he was looking at it, the load slipped (Tr. 171). The
sling closest to the rig slid toward the middle of the pipe, causing the load to twist. The front
end of the load closest to Delancy came down and the back end of the load scraped against the
truck. This caused some of the pipes to roll off the truck (Tr. 172).
       Delancy got in between the truck and the pipe and tried to push the load away from the
truck with his hands. One of the pipes from the truck rolled off and tripped Delancy. As he
regained his feet, Delancy came directly between the truck and the load. The load crushed
Delancy against the truck, killing him (Tr. 173-174).

                                            Discussion

       The Secretary has the burden of proving her case by a preponderance of the evidence.
               In order to establish a violation of an occupational safety or health
       standard, the Secretary has the burden of proving: (a) the applicability of the
       cited standard, (b) the employer’s noncompliance with the standard’s terms, (c)
       employee access to the violative conditions, and (d) the employer’s actual or
       constructive knowledge of the violation (i.e., the employer either knew or, with
       the exercise of reasonable diligence could have known, of the violative
       conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

       In order to establish that a violation is “serious” under §17(k) of the Act, the Secretary
must establish that there is a substantial probability of death or serious physical harm that could
result from the cited condition. In determining substantial probability, the Secretary must show
that an accident is possible and the result of the accident would likely be death or serious
physical harm. The likelihood of the accident is not an issue. Spancrete Northeast, Inc., 15
BNA OSHC 1020, 1024 (No. 86-521, 1991).

                Item 1: Alleged Serious Violation of 29 C.F.R. § 1926.251(c)(8)

       The Secretary alleges that Boh committed a serious violation of 29 C.F.R. §
1926.251(c)(8), which provides: “Slings used in a basket hitch shall have the loads balanced to
prevent slippage.”
       It is undisputed that the load of pipes lifted by Boh on June 10, 1999, was not balanced.
Crane operator Headrick noticed the lack of balance as soon as he began his lift. He
immediately brought it to the attention of Boh’s foreman.
       Boh argues that 29 C.F.R. § 1926.251(c)(8) does not apply to the rigging it used on the
load because the slings were not used in a basket hitch. Boh contends that its employees rigged
the load using a choker hitch that failed to choke properly. The Secretary maintains that, no
matter what kind of hitch Boh intended, the hitch that resulted was a basket hitch.
       The construction standards do not define “basket hitch” (Tr. 261-262). Compliance
officer Brian Smith stated that a basket hitch “cradles the load. It doesn’t wrap the load along.”
Mr. Smith identified the hitch used on the load in question as a basket hitch (Exh. C-14; Tr.
219). Here the hitch consisted of two slings with two eyes on the ends of each sling. Mr. Smith
further testified that the basket hitch “cradles the load and it has four points of suspension
meaning that the load is suspended in four points. . . . A choker sling . . . [has] two points of
suspension” (Tr. 219).
       Vic Gremillion, Boh’s corporate safety director, drew a similar distinction between a
choker hitch and a basket hitch. In a choker hitch, “when the weight is applied, the weight of
the load causes a choking action” around the load. In a basket hitch, “the load is just held by
gravity in the sling” (Tr. 104).
       Mr. Gremillion identified the configuration of the slings at issue as a basket hitch as
follows:
       Q.      Sir, could you please look at C-1 and tell me whether or not the
               configuration in C-1 resembles a basket hitch?

       A.      I don’t -- I don’t have it.

       Q.      Do you have Exhibits C-1, 2 and 3?

       A.      Yes.

       Q.      Can you please tell me whether or not C-1 resembles a basket
               hitch?

       A.      Yes.

       Q.      Could you please look at C-2? And to the right of the flatbed
               truck, you see some pipes or piles that are in a load with two
               supporting apparatuses. Does that resemble a basket hitch?

       A.      Yes.
       Q.      Could you please look at C-3? And you see in the photograph
               directly in front of the flatbed truck are some piles of pipes that
               are suspended by two configurations. Can you tell me if that
               resembles a basket hitch?

       A.      One or the other, but it’s not in front of the truck. It’s on the
               right-hand side of the flatbed trailer. But, yes, that is a basket
               hitch. It resembles a basket hitch. (Tr. 21-22)

       Mr. Gremillion described a choker hitch as follows:

       A.      A choke hitch is made by taking a sling, which has two eyes on
               each end, and a length of wire rope in the middle, and going
               under the load, taking the eye that has passed under the load and
               passed through the eye of the other end of the wire rope sling and
               attaching one end to the crane -- to the crane so that when the
               load is lifted, the eye of the sling forms a choke hold on the load
               (indicating).

               THE COURT: It slides down onto the load?

               THE WITNESS: It slides down and tightens up onto the load and
               actually chokes the load (indicating). It has a bite on the load
               when it’s lifted. (Tr. 22)

       Here the two slings were not configured as a choker hitch or choke hitch. The eye on
one end of the sling did not pass through the eye of the other end of the sling. If this had been a
choker hitch, only one end of the sling would have been attached to the crane cable. In this
situation, one end of each sling was attached to a crane hook. The eye on the other end of each
sling encircles the cable above the hook, not the sling. When the load was lifted, the eye slid
down that cable, but only to a point above the hook where it was stopped by a shackle. Each
sling had two ends attached to the crane cable. The resulting configuration had four points of
suspension from the crane cable and was a basket hitch that cradled the load rather than choking
down on it. Respondent’s safety director, Mr. Gremillion, admitted throughout his testimony
that the resulting configuration used by Boh’s crew was a basket hitch, not a choker hitch (Tr.
21-22, 104-108).
       It is undisputed that a basket hitch cradles the load in the slings and relies on gravity to
keep the load in place. Boh’s own corporate safety director stated that the way to tell the
difference between a choker hitch and a basket hitch is to see whether the load is secured or
unsecured. “If there’s a big space in here and you’re not choking and biting down on the load,
there’s a large space in here, then you’ve got a basket hitch” (Tr. 104). Exhibits C-2, C-3, and
C-14 show that the pipes are not secured, but that there is a large triangular space made by pipes
on the bottom and the slings on the two sides.
       Boh’s claim that this was not a basket hitch, but a choker hitch done wrong is not
persuasive. I find that Boh rigged the load using a basket hitch and that the load was not
balanced. The intent of the standard is to prevent unsecured loads from slipping. Regardless of
how Boh intended to configure the rigging, it ended up with 12,000 pounds of unbalanced
metal pipe resting in a basket hitch. The purpose of the standard is effected not by focusing on
the employer’s intention in rigging a load, but by looking at the actual result of the rigging.
       The Secretary has established that 29 C.F.R. § 1926.251(c)(8) applies to the rigging of
the load and that Boh failed to balance the load. Seven Boh employees were present at the site
and exposed to the violative condition. Boh was aware of the violative condition. The fact that
the load was unbalanced was plainly visible to all and was specifically called to the attention of
the foreman. Violation of 29 C.F.R. § 1926.251(c)(8) created the substantial probability that
death or serious physical injury could result. Boh was in serious violation of 29 C.F.R. §
1926.251(c)(8).

               Item 2: Alleged Serious Violation of 29 C.F.R. § 1926.550(a)(19)

       The Secretary alleges that Boh committed a serious violation of 29 C.F.R.
§1926.550(a)(19), which provides: “All employees shall be kept clear of loads about to be lifted
and of suspended loads.”
       It is undisputed that 29 C.F.R. § 1926.550(a)(19) applies to the cited conditions. Boh
concedes that it violated the terms of the standard when Delancy attempted to push the load
away from the truck with his hands. Delancy was exposed to the hazard and, as foreman, his
knowledge of his own actions is imputed to Boh. The Secretary has established a violation
of 29 C.F.R. § 1926.550(a)(19).
                       Boh’s Unpreventable Employee Misconduct Defense

         Boh argues that the violation of the standard is the result of unpreventable employee
misconduct on the part of Delancy.
         In order to establish the affirmative defense of unpreventable employee misconduct, an
employer is required to prove (1) that it has established work rules designed to prevent the
violation, (2) that it has adequately communicated these rules to its employees, (3) that it has
taken steps to discover violations, and (4) that it has effectively enforced the rules when
violations are discovered. Precast Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971,
1995), aff’d without published opinion, 106 F. 3d 401 (6th Cir. 1997). However, “[w]hen the
alleged misconduct is that of a supervisory employee, the employer must also establish that it
took all feasible steps to prevent the accident, including adequate instruction and supervision of
its employee.” Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1067,
1991).
         Where a supervisory employee is involved, the proof of unpreventable employee
misconduct is more rigorous and the defense is more difficult to establish since it is the
supervisor’s duty to protect the safety of employees under his supervision. A supervisor’s
involvement in the misconduct is strong evidence that the employer’s safety program was lax.
United Geophysical Corporation, 9 BNA OSHC 2117, 2122-2123 (No. 78-6265, 1981).
         Boh identified several rules written in its “Safety and Health Manual” that are designed
to prevent the violation of 29 C.F.R. § 1926.550(a)(19) (Exh. C-4). Under “Material
Handling,” the manual states (Exh. C-4, pp. 79-80, emphasis in original):
         A. The unloading of piles shall be supervised. All unnecessary personnel shall
         be kept clear.
         ...
         I. Taglines should be used on all loads.

         J. No employee shall walk under or be placed under a suspended load at any
         time.

         K. Employees shall refrain from “manhandling” piles which are being lifted by the rig
and      shall avoid the area when piles are being lifted.
        Boh claims that it effectively communicated these rules to its employees in bimonthly
supervisor meetings and weekly safety meetings (Tr. 58). The record establishes, however, that
Boh did not take steps to discover violations of these work rules and that it did not enforce the
rules when violations were discovered.
        Delancy had been a supervisor with Boh for eighteeen years at the time of his death
(Tr. 57). Boh empowered its supervisors with considerable discretionary authority. Corporate
safety director Gremillion stated, “ [T]he supervisor, who is kind of running the show and can
see, feel, hear, smell, taste what’s going on there, he makes the calls” (Tr. 36-37), and “You
usually have to listen to what your supervisor tells you to do, whether it’s written in the book or
not written in the book” (Tr. 56).
        Crane operator Headrick testified that it was not unusual for employees to get within
two feet of a suspended load (Tr. 171). When asked if it had ever happened before that an
employee would try to guide the load with his hands, Headrick responded, “Always” (Tr. 173).
On the day of the accident, Delancy walked up to within two feet of the suspended load to
examine it and later attempted to guide the load by pushing it with his hands. He did this in
plain view of his crew.
        Boh claims that Delancy’s misconduct was unpreventable, but the evidence supports the
view that his actions were routine and condoned by Boh. It is telling that Boh’s corporate
safety director stated that if he observed rigging or lifting violations during field visits, he
would “make suggestions on how to do it the correct way” (Tr. 46). He makes no mention of
actually enforcing Boh’s work rules or disciplining the employees who are responsible for
violating the rules.
        Boh has failed to establish its unpreventable employee misconduct defense. The
violation is serious.

                                       Penalty Determination

        The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of
the Act, in determining the appropriate penalty, the Commission is required to find and give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the violation,
(3) the good faith of the employer, and (4) the history of previous violations. The gravity of the
violation is usually the principal factor to be considered.
       Boh employs approximately 1,600 employees (Tr. 19). Boh had no history of violations
for the three years prior to the June 10, 1999, fatality (Tr. 225). Boh demonstrated good faith.
It had a safety and health manual and held weekly safety meetings with its employees.
       The gravity of the violations is high. Boh was lifting an unbalanced load weighing
approximately 12,000 pounds. Its foreman attempted to guide the load with his hands. The
combination of the two violations resulted in Delancy’s death. The Secretary’s proposed
penalties of $4,500.00 for each item is determined to be appropriate.

                                   FINDINGS OF FACT AND
                                    CONCLUSIONS OF LAW

       The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

                                             ORDER

       Based upon the foregoing decision, it is hereby ORDERED that:
       1. Citation No. 1, item 1, alleging a serious violation of 29 C.F.R. § 1926.251(c)(8), is
affirmed and a penalty of $4,500.00 is assessed; and
       2. Citation No. 1, item 2, alleging a serious violation of 29 C.F.R. § 1926.550(a)(19), is
affirmed and a penalty of $4,500.00 is assessed.




                                               STEPHEN J. SIMKO, JR.
                                               Judge

Date: March 10, 2000