Cranes in construction must always be used with full regard for the gravity of the potential consequences of a collapse. The equipment must be inspected, with careful attention to both OSHA standards, and the manufacturer’s recommendations. Defects noted must be reported up the chain of command, and bad equipment removed from service, until repaired or replaced. Everyone you employ must be trained that these rules are not to be honored only in the breach.
The unwisdom of laxity in inspecting and maintaining cranes, and failing to take bad equipment out of service, are underscored in a recent ALJ decision, Secretary v. Mountain States Contractors, LLC. In that case, the employer was found to have willfully violated OSHA, by continuing to use, for more than a month, a crane on which the boom cable was known to need replacement.
The employer in Mountain States was building two bridges over the Cumberland River. Beginning on February 19, 2013, Hutchins and Shehane, operators using the Terex crane in question, noticed, and repeatedly recorded in daily inspection forms, that the crane’s auxiliary cable needed to be replaced.
An annual inspection on April 3, 2013 noted that the auxiliary cable was “bad.” The inspector saw, but failed to record in his report, two broken wires on the boom cable.
On April 11th, Shehane wrote in the daily inspection form, “Need new cable on Aux. drum. Got new cable coming for boom hoist.” On April 15th, Shehane again mentioned that the boom cable needed to be replaced.
Operator Hutchins told OSHA inspectors — although he later tried to fudge this statement at trial — that, as early as April 18th, he had observed multiple broken wires on the boom cable, which met the criteria for being taken out of service.
A new auxiliary cable was installed on April 26th. Two days later, Hutchins recorded that the “boom cable needs replacing,” and checked the box indicating that the boom needed to be repaired “before further operation.”
A different operator, Bundy, took over the crane after April 28th, and, although he would later testify that he had observed cracks in “half a dozen” lays along the boom cable, he made no notations in the daily inspection log until May 20-21. On those days, Bundy, too, indicated that the boom cable needed to be replaced.
On May 21st, while Bundy was operating the crane on one of the bridges, the boom cable snapped, whipped back, and broke out the windows of the crane cab. The boom fell onto the highway although, fortunately, no one was injured.
In the ensuing OSHA inspection, Bundy denied knowledge as to why the boom cable had broken. Hutchins, however, told the Compliance Officer he had seen broken wires all along the boom cable, severe enough to require taking the crane out of service, weeks before the accident, and had advised Shehane (who was both an operator and a foreman) accordingly.
There came on for trial a single citation item, alleging a “Willful” violation of the standard that mandated that both the boom cable and the auxiliary cable be taken out of service, and replaced immediately, upon the detection of what is defined as a “Category II” deficiency.
The boom cable consisted of wires, strands, and a core. The “strands” are groups of individual wires that are wrapped around the core. A “lay” is the distance it takes for a strand to make a complete revolution around the core. To prove the “Category II” deficiency cited, the Secretary needed to show that (1) there were three or more broken wires in one strand, as it made one revolution around the cable; or (2) that there were six or more broken wires in any one strand within a single lay.
Sorting through considerable obfuscation and dubious testimony by company witnesses, the ALJ, in a detailed decision, affirmed the citation, and imposed a $60,000 penalty.
In the ALJ’s discussion of the evidence, I noted especially that the inspector who performed the annual inspection admitted having observed two broken wires in two different lays, but failed to record that information, and to “boom down” the crane, to unspool the entire length of the cable for inspection. The ALJ expressed consternation that the inspector falsely certified his inspection (which, per regulations, was required to be “complete and thorough, covering the entire length of the wire ropes”) and failed to document the broken wires he had seen. The judge was dismayed, also, that the auxiliary cable (which the inspector noted as “bad”) was not replaced for nine working days following the inspection.
The ALJ deplored that “it appears that the annual inspection is viewed as little more than a perfunctory process attendant to owning and operating a crane.” I hope my readers will get the point that, if your crane one day collapses, having been so carelessly inspected and maintained, you should not count on having the good fortune enjoyed by the employer in Mountain States in avoiding fatalities, and more extensive property damage.
The operators in Mountain States all testified that they knew themselves to have authority to take the crane out of service. Yet, none of them did so, and the equivocation in their testimony suggests that they knowingly endangered themselves and others, in order to spare their employer the cost to replace the cables, or delays pending the delivery of new cables.
At the trial and in their post-trial brief, the employer and counsel seized on differing terms (“fractured” and “cracked” as well as “broken”) used by the operators and the inspector, to assay a due process argument that the term “broken” was being extended beyond its meaning in the regulations.
Although allowing that the employer’s argument had some plausibility, the ALJ concluded that the use of “broken” to embrace “cracked” and “fractured” comported with the ordinary meaning of “broken,” and that the fine distinctions that the respondent was endeavoring to establish were of doubtful importance “when the cracked, broken, or fractured wire has several tons of weight applied to it.”
As to the element of employer knowledge, the ALJ found that each of the three operators (who were, by definition, “competent persons”) had actual knowledge of the defect, and the project superintendent was chargeable with constructive knowledge, having failed to exercise due diligence by reviewing and acting on the daily inspection forms, notwithstanding that he had been told that a new one had been ordered.
As for the classification of the violation, the ALJ agreed that the employer’s conduct was “Willful,” based on its insouciance regarding both the auxiliary and the boom cable, and from the testimony establishing that the replacement boom cable had been ordered, and was onsite at the time of the accident. The failure to stop work for the brief period necessary to perform the installation, while having heightened awareness of the regulation, was found to constitute disregard for the requirements of the Act.
The ALJ also cited, as proof of willfulness, the operators’ failure to take the crane out of service, and that supervision of the operators was entrusted to a superintendent who, admittedly, had never undergone any training in the use of cranes, was not a “competent person” with respect to cranes, and had never operated one. Plus, as the Court noted, it required no special training to read the daily inspection forms, which clearly stated that the boom cable needed to be replaced, and to further inquire into the basis of such statements.