In last month's article about how to decide whether to contest an OSHA citation, I mentioned that, although OSHA procedures place the employer at a disadvantage as to the proof of facts, the Administrative Law Judges are generally knowledgeable and conscientious on issues of law.
A recent example is Secretary v. Ben Hur Construction Co., involving the death of an apprentice crane operator during disassembly of a 100-ton lattice boom crawler crane.
Ben Hur, a century-year old steel and precast erector and steel fabricating outfit with three regional offices in the Midwest, had several subcontracts to set steel on various phases of a corporate headquarters construction job in Missouri. Having completed the setting of steel for one of the buildings under construction, a 6-man crew undertook to disassemble the crane, a Linkbelt 218. The crew consisted of crane operator Pete Bell, operator apprentice Steven Lillicrap, an equipment manager, and three ironworkers.
After removing the two 11-ton counterweights, the crew needed to pull the pins on the crane’s gantry, so that it could be lowered. Because the crane was situated in a tight space, Bell - a highly-skilled union operator - needed to move the crane forward, before lowering the gantry. Bell told Lillicrap, who had climbed about 9 feet above the ground to hook up the counterweights prior to their removal, to stay on the work platform or landing on the back of the crane, while Bell moved it forward. Bell twice instructed Lillicrap that he would move the crane forward and raise the butt section, whereupon Lillicrap would pull four pins on the gantry, to permit it to be lowered. When Bell gave Lillicrap his instructions the second time, the apprentice was standing on the work platform at the back of the crane. Since the platform was almost 7' above the ground, Lillicrap was required to be tied off. Before putting the crane in motion, Bell was able to see Lillicrap from the chest up. He could see that Lillicrap was wearing his harness, but could not tell if, or to what, Lillicrap was tied off.
The platform on which Lillicrap was positioned was next to the boom hoist drum. The butt section of the boom had been lifted a few feet above the ground, to ensure that the boom did not hit the ground as the crane moved forward. The boom had to be raised also because the gantry and boom had to be "scissored." This means that the boom cable had to be kept tight, which requires the operator to lift the butt section to get the hydraulic cylinders on the gantry to overhaul (as, otherwise, the cylinders will stall).
Bell put the crane in forward motion, boomed up, and heard an ironworker yell, "Stop!" Bell went back and saw that Lillicrap, who had attached his lanyard to the live end of the boom hoist drum cable, had been pulled down next to the boom hoist drum when Bell boomed up, and the drum turned. Lillicrap, whose family had worked with cranes and who was seen by his employer as an uncommonly talented apprentice, died from his injuries.
OSHA was notified as required by law and, following their inspection, issued two citations against Ben Hur. One alleged a violation of § 1926.550(a)(1), which requires compliance with the manufacturer’s specifications and limitations applicable to the operation of cranes. The other alleged that Ben Hur had failed to instruct Lillicrap in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment - specifically, in neglecting to train him to attach his lanyard to a safe anchor point. These citations were undoubt-edly seen by OSHA as a "high profile" matter, both as they involved a fatality, and as the fatality resulted from the operation of a crane. Contesting the citations, Ben Hur admitted jurisdiction, coverage, the applicability of the cited standards, employee exposure, and employer knowledge. Its defense was simply that it denied having violated the standards cited.
The first item, the alleged failure to operate the crane within the manufacturer’s specifications and limitations, focused on Ben Hur’s alleged failure to observe a warning in the manufacturer's operation manual to stay clear of all moving machinery during the raising or lowering of the gantry, and further advising that a signalman be positioned to observe all areas of motion and warn the operator of danger.
Ben Hur argued that the warning in the operation manual was not a "specification." The latter term is not defined in the OSH Act, but per its dictionary definition, the ALJ found it to connote steps or instructions that are "required, mandatory, obligatory or compulsory." Failure to comply with a "specification" will lead to penalties under the Act, but failure to follow a mere "recommendation" (that is, a "suggestion, proposal, or option to be considered") will not.
The ALJ, reviewing the manual's section entitled "Disassembly of the Crane," noted that the manual itself stated that "the instructions in this Section are the recommended, safe procedures," but that, due to site conditions, the availability of additional equipment, and previous disassembly experience, "other methods may be used," provided that they are "proven, safe methods." Accordingly, the ALJ found the instructions in the operating manual to be recommendations, not mandatory specifications.
As for the alleged necessity of using a signalman while lowering the gantry, the ALJ rightly rejected this allegation both because this, too, was a recommendation and not a specification; and secondly because, as the citation itself stated, Bell was booming up, not raising or lowering the gantry, when the accident occurred. Accordingly, the ALJ vacated the first citation item.
The second, failure-to-train item, was also vacated. First, the ALJ reviewed the employer's training procedures in detail, and found them to be adequate. Second, it credited Bell’s testimony that he had specifically cautioned Lillicrap to tie off to the dead end of the crane cable, and rejected the Secretary's argument that Bell's instructions should not be considered, as he was not the employer's designated safety representative.
Bell's testimony was corroborated by a company superintendent, and the ALJ gave short shrift to the argument that an experienced, qualified operator such as Bell could not instruct Lillicrap in fall protection safety.
Ultimately, the ALJ noted, the Secretary's argument on this item invited the Court to extrapolate from the fact that Lillicrap tied off to a live cable a conclusion that he had not been instructed not to do so. The Court declined that invitation, citing OSH Review Commission precedent that the issue is whether the employer's safety program provided adequate guidance, not whether the accident could possibly have been averted.
While obviously the death of a rising star in a demanding trade represented a great loss to Ben Hur as well as to the apprentice’s family, the ALJ reached the correct result.
If you would like more information regarding this topic please contact Thomas H. Welby at
As we continue to track evolving COVID-19 (coronavirus) developments, we
wanted to share with you the actions we are taking to protect the health and
well-being of our clients and colleagues and to reassure you of our continuing
availability to serve your legal needs.
To protect our staff and visitors, the firm has authorized employees to
work from home and encourages employees to be vaccinated. All employees and
visitors must complete the COVID screening
before coming to the office and must wear a mask. We continue to follow
the guidance issued by the Centers for Disease Control and Prevention
and other state and local authorities.
At this time, our offices remain open. However, all of us can work
remotely with appropriate support. From all of us at Welby, Brady &
Greenblatt, our best wishes for the health of you and your family and community.