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An Exemplary Safety Program on Paper is Not Enough

18 October 2022

Costas Cyprus

Secretary of Labor v. TNT Crane and Rigging, Inc. demonstrates how companies must maintain work safety rules that not only specifically address the requirements of applicable OSHA safety rules and standards but that they also take measures to ensure adequate compliance. TNT Crane and Rigging, Inc. (“TNT”) is a crane service provider from Houston, Texas with more than 250 employees and numerous offices. On May 15, 2016, in Georgetown, Texas, a TNT employee was seriously injured during the disassembling of a crane when it contacted a power line. As a result of the incident, OSHA cited TNT for two violations of OSHA’s Cranes and Derricks in Construction Standards. The OSHA Review Commission ultimately affirmed both violations as against TNT.

On the incident day, four TNT employees (the crane operator, a spotter/rigger (SR1), a second spotter/rigger (SR2), and a driver) were completing the disassembly of a 275-ton mobile crane which had been used to install new antennas on a communication tower. All four employees met to discuss a plan for disassembly. The crane operator (and supervisor) created a job safety analysis (JSA) before the breakdown and discussed it with the three other crew members. The plan was for the crane operator to reposition the crane to lower the boom onto the semi-truck while SR2 would spot and hold the hoist line to keep it taunt, the driver would drive the semi-truck once the boom was on the flatbed and SR1 would spot and guide the truck. SR2 and the driver expressed concerns over the exact location due to nearby powerlines, but the crane operator reassured them it would be disassembled in the same location in which the crane was assembled and that there would be a 20 feet buffer zone from the power line. Therefore, the powerlines would be avoided. Nevertheless, as the crane operator was lowering the boom of the crane and retracting the hoist line, the load line came into contact with a powerline. SR2 who was holding the load line was electrocuted and sustained severe burns and other injuries.

After the incident, an OSHA Compliance Safety and Health Officer investigated. Although the officer was unable to inspect the original jobsite, the officer conducted interviews offsite with witnesses and took photos to recreate the scene. OSHA issued two citations: Violation # 1 - Exposure of employees to the hazard of electrical shock by failing to use at least one of the measures required to prevent encroachment or contact with power lines while disassembling a crane; Violation # 2 - Placing part of a crane and load, whether partially or fully assembled, closer than the minimum approach distance (MAD) to a power line.

To prove a violation, the Secretary of Labor (SOL) must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was failure to comply with the cite standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or should have known of the condition with the exercise of reasonable diligence. The cited safety standards clearly applied to the work that was being conducted at the time of the incident and that there was noncompliance and exposure to the hazardous condition. The issue that the Commission addressed in its most recent decision was whether TNT had knowledge of the violative condition, which it determined that it did.

Both violations rested upon the Commission’s reasoning that the violative conduct was collaborative here. It was not just the crane operator’s activities but the activities of the entire crew, collectively. As for Violation # 1, there was no dispute that TNT crew disassembled the crane without a required protective measure in place to prevent encroachment before disassembly began. Similarly, Violation # 2 involved the crew’s collective failure to maintain the required clearance during disassembly. Prior to disassembly, the crew conducted a JSA together and then met as group to discuss the work prior to commencement. Although two of the crew members expressed concerns, they were reassured by the other two crew members and all agreed to proceed. Therefore, the crane operator/supervisor’s knowledge of the other crew members’ violative conduct could be imputed to TNT, as is consistent with the relevant precedent.

TNT’s defense before the Commission was that the crane operator engaged in unpreventable employee misconduct (“UEM”). To succeed on that defense, TNT must show that it had established work rules to prevent violative conditions from occurring, adequately communicated those rules to its employees, took steps to discover violations of those rules, and effectively enforced the rules when violations were discovered. The Commission found that TNT failed to establish work rules that were specific enough to ensure the violative conditions from occurring.

As to Violation # 1, although TNT’s work rule shared some similarities with the OSHA standard, it did not provide the specific requirements mandating that an employer implement an encroachment prevention measure prior to crane disassembly to ensure that a 20-foot distance from power line is maintained when any part of the crane could breach that distance. TNT’s safety policy only mentioned one of the applicable provision’s numerous encroachment prevention measures.

As to Violation # 2, the Commission found that TNT did have work rules in place that addressed the requirement of the applicable standard and it properly communicated those rules to its employees through various trainings, safety programs/manuals, orientations, etc. However, TNT failed to sufficiently monitor compliance of those rules and effectively enforce them when violations were discovered and therefore could not establish a UEM defense. TNT claimed it monitored compliance through inspections and surprise audits by submitting inspection documentation that included safety checklists. Yet, this particular site was never inspected nor audited. TNT’s practices and the submitted documentation were insufficient as no one from TNT could provide details on how often worksites were generally inspected/audited, what kinds of sites were inspected, etc. TNT’s submitted documentation showed no evidence as to the effectiveness of their monitoring/auditing plan, except that one existed on paper. Lastly, TNT failed to establish they effectively enforced the rules when violations were discovered. Although the crane operator in this instance was discharged, TNT could not offer any other evidence of prior disciplinary action of an employee for violating powerline safety rules, which beggars belief given the size of the company. The fact that the crane operator and the rest of the crew collectively were involved in violative conduct actually was evidence of TNT’s lax enforcement of these rules.



If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445