United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

ON BRIEFS:

Brian A. Broecker, Attorney; Heather Phillips, Counsel for Appellate Litigation; Edmund C. Baird, 

Associate Solicitor of Labor for Occupational Safety and Health; Kate S. O’Scannlain, Solicitor of 

Labor; U.S. Department of Labor, Washington, D.C.

For the Complainant

Randolph T. Struk, Esq.; Clark Hill PLC, Pittsburgh, PA

For the Respondent

DECISION

Before: ATTWOOD, Chairman; LAIHOW, Commissioner.

BY THE COMMISSION:

Maxim Crane Works is a nationwide crane rental company. In April 2017, a Maxim 

employee was injured when he fell while disassembling a crane at Maxim’s maintenance yard in 

Ridley Park, Pennsylvania. As a result of the incident, the Occupational Safety and Health 

Administration inspected the yard and issued Maxim a two-item serious citation with a total 

proposed penalty of $25,350. 

Following a hearing, Chief Administrative Law Judge Covette Rooney affirmed both 

citation items and assessed the proposed penalty for each violation. Only Item 1, alleging a fall 

SECRETARY OF LABOR,

MAXIM CRANE WORKS,

Complainant,

Respondent.

v. OSHRC Docket No. 17-1894
2

protection violation of 29 C.F.R. § 1910.28(b)(1)(i), is at issue before the Commission.1 For the 

reasons discussed below, we affirm the citation.2

BACKGROUND

At its Ridley Park yard, Maxim stores, maintains, uses, and rents out a variety of types and 

sizes of cranes; the company also provides onsite rigging, operational, and maintenance personnel 

to its customers’ worksites. Maxim’s customers are predominantly in the construction industry 

(about 70-75 percent), while the remaining customers are from other industries. Cranes that have 

been assembled at the yard, whether for maintenance, use, or display, usually must be 

disassembled before they can be transported to a customer’s worksite.

On April 14, 2017, Maxim was disassembling a Manitowoc 14000 crawler crane at the 

yard for transport to a customer’s construction site in New Jersey where a Maxim employee would 

work onsite as the crane’s operator.3 The crane had been used most recently by Maxim for 

logistics, loading and unloading of trucks, and moving pieces of equipment or crane sections 

throughout the yard. During portions of the disassembly process, a Maxim employee stood on top 

of the lowered lattice boom of the crane. Per company policy, he was not wearing fall protection 

because he was working at an elevation of less than 15 feet. While disconnecting two sections of 

the lattice boom, the section the employee was standing on unexpectedly shifted, causing him to 

lose his balance and fall approximately nine and a half feet to the ground. The employee suffered 

multiple serious injuries including a fractured skull and concussion.

DISCUSSION

The question before us is whether the cited standard, 29 C.F.R. § 1910.28(b)(1)(i), which 

requires fall protection on walking-working surfaces with an unprotected side or edge that is 4 feet 

1 Maxim petitioned for review of both citation items, but the Commission requested briefs only as 

to Item 1. See Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1535 n.4 (No. 86-360, 1992) 

(consolidated) (“Ordinarily the Commission does not decide issues that are not directed for 

review.”).

2 On June 2, 2020, Maxim filed a motion requesting oral argument. Because we find that the 

record and briefs provide a sufficient basis upon which to decide this case, the motion is denied. 

See, e.g., Manganas Painting Co., 21 BNA OSHC 1964, 1968 n.3 (No. 94-0588, 2007).

3 The Manitowoc crane was contracted to be assembled and operational at the construction site on 

April 24.
3

or more above a lower level, applies to the cited condition.4 On review, as it did before the judge, 

Maxim argues that 29 C.F.R. § 1926.1423(f), a construction standard that requires fall protection 

for crane disassembly work starting at an elevation of 15 feet, preempts the cited general industry 

standard because (1) Maxim was engaged in construction work, and (2) even if it was not, 

§ 1926.1423(f) should nonetheless apply to its disassembly work. The judge rejected both 

arguments and agreed with the Secretary that the cited general industry provision applies because 

Maxim was not engaged in construction work at the time of the crane’s disassembly. 

I. Whether Maxim was engaged in construction work

The construction standards in Part 1926 apply to “every employment and place of 

employment of every employee engaged in construction work.” 29 C.F.R. § 1910.12(a) (emphasis 

added). The term “construction work,” as used in § 1910.12(a), is defined as “work for 

construction, alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1910.12(b). 

The Sixth Circuit, a relevant circuit here,5has established a two-step test for determining whether 

an employer is engaged in construction work.

6 Cardinal Indus. Inc., 828 F.2d 373, 379 (6th Cir. 

4 To establish a violation, the Secretary must prove that the cited standard applies, there was a 

failure to comply with the standard, employees were exposed to the violative condition, and the 

employer knew or could have known of the violative condition with the exercise of reasonable 

diligence. See Briones Utility Co., 26 BNA OSHC 1218, 1219 (No. 10-1372, 2016); Astra Pharm. 

Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69 

(1st Cir. 1982). Only the applicability element of the Secretary’s prima facie case is on review 

before the Commission.

5 This case arose in Pennsylvania, which is in the Third Circuit, and Maxim has its headquarters 

in Kentucky, which is in the Sixth Circuit. See 29 U.S.C. § 660(a) (employers may seek review in 

the circuit in which the violation occurred, the circuit in which the employer’s principal office is 

located, or in the District of Columbia Circuit); 29 U.S.C. § 660(b) (Secretary may seek review in 

the circuit where the violation occurred or in the circuit in which the employer’s principal office 

is located). In general, “[w]here it is highly probable that a Commission decision would be 

appealed to a particular circuit, the Commission has . . . applied the precedent of that circuit in 

deciding the case—even though it may differ from the Commission’s precedent.” Kerns Bros. 

Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted).

6 We note that two months after issuing its decision in Cardinal Indus., Inc., 12 BNA OSHC 1585 

(No. 82-427, 1985), the Commission relied on that decision’s reasoning in Nu-Way Mobile Home 

Mfg., 12 BNA OSHC 1670 (No. 80-7082, 1986), which presented the same question and a similar 

fact pattern. Nu-Way, which could have been appealed to the Fifth or D.C. Circuits, was not 

appealed. The following year, the Sixth Circuit reversed the Commission’s Cardinal Industries

decision. Cardinal Indus., 828 F.2d at 380. Therefore, the rationale underpinning the Nu-Way
4

1987), abrogated by Martin v. OSHRC (CF&I), 499 U.S. 144 (1991). The first step is to determine 

whether there was “a nexus between the work and the construction site.” Id.; Simpson, Gumpertz 

& Heger Inc., 15 BNA OSHC 1851, 1857 (No. 89-1300, 1992) (relying on court’s analysis of the 

definition of “construction work” in Cardinal Industries), aff’d, 3 F.3d (1st Cir. 1993). In other 

words, the Commission must determine whether there is “ ‘some direct and tangible connection or 

relationship with the physical [construction] site or location of the structure.’ ” Cardinal Indus., 

828 F.2d at 379 (quoting Cardinal Indus., Inc., 12 BNA OSHC 1585, 1589 (No. 82-427, 1985) 

(Rader, Commissioner, dissenting)). If a nexus is established, the second step is to determine 

whether the work in question was “integral and necessary” to construction work by considering 

the nature of the tasks performed and the employer’s primary function. See Clean Fuels of Indiana, 

Inc., No. 15-1121, at 4-6 (OSHRC 2020) (assessing whether tank cleaning company’s work was 

“integral and necessary” to construction of gas station); Ryder Transp. Servs., 24 BNA OSHC 

2061, 2062 (No. 10-0551, 2014) (citing B.J. Hughes, Inc., 10 BNA OSHC 1545, 1546-47 (No. 76-

2165, 1982)); Cardinal Indus., 828 F.2d at 380 n.11 (factors such as the nature of the tasks 

performed and the employer’s primary function become relevant only after a determination that 

there is a nexus to a construction site).

Although both parties agree the Commission should examine the work Maxim’s employees

were performing on the day the violation occurred, they disagree as to the relevant time period for 

determining whether a nexus between that work and the construction site exists, and whether the 

work was “integral and necessary” to construction work. Maxim argues that the Commission 

should disregard any activity the crane was involved in at its maintenance yard before that day and 

focus solely on the purpose for which the crane was being disassembled, while the Secretary argues 

that the Commission should disregard the reason why the crane was being disassembled, as well 

as how it was to be used after that day. 

Because, as noted, § 1910.12(a) states that the construction standards apply to employees 

who are “engaged in construction work” (emphasis added), only activities occurring at the time of 

the alleged violation, not any future or past activities, are relevant to this aspect of the inquiry.

This does not mean, however, that the work Maxim generally performs at the yard, without regard 

decision has effectively been overruled. Moreover, subsequent Commission decisions addressing 

this same question have applied the principles discussed below. See infra note 11.
5

to any specific crane, is irrelevant. On the contrary, we find that it informs our assessment of

Maxim’s primary function in the second step of the inquiry, as we discuss in Section B, below.

A. Nexus to a Construction Site

In finding that Maxim’s work at its yard on the day of the violation lacked a nexus with the 

New Jersey construction site, the judge relied on a number of facts related to the general operation 

of the yard and how the crane in question had been used there prior to disassembly. As discussed 

above, however, we find that it is only appropriate to consider the work Maxim was performing at 

the time of the violation. Thus, the issue here is whether the judge erred in finding that Maxim’s 

disassembly work on the day of the accident lacked a nexus to the construction site for which it 

was destined.

7

There is no dispute that the disassembly work occurred at Maxim’s maintenance yard, 

which is neither a construction site nor near the New Jersey construction site. Maxim argues, 

however, that a nexus nonetheless existed because it was disassembling the crane for transport to 

a specific construction site where one of its employees would operate the crane. We disagree. In 

Cardinal Industries, the Sixth Circuit concluded that there was not a nexus between the cited 

employer’s work mass-producing housing units in a factory and the various construction sites to 

which a different employer transported those units and installed them because the production work 

occurred wholly within the factory, with no connection to a specific construction site. Cardinal 

Indus., 828 F.2d at 375, 380. Maxim distinguishesits disassembly work from that mass-production 

work by pointing out that the Manitowoc crane was destined for a specific construction site, unlike

the housing units in Cardinal Industries. But, as the Secretary points out, this is a distinction that 

makes no difference because, just as the work in Cardinal Industries was not customized for a

specific construction site, Maxim’s disassembly of the crane was not customized work designed 

to meet the specifications of a specific construction project—rather, as the Secretary contends, it 

was “routine” disassembly work.

8

 See id. at 380 (implying that customization of the units may 

7 As the judge pointed out, the burden is on the Secretary to establish the applicability of the cited 

standard; accordingly, the Secretary must establish that the disassembly work that Maxim was 

performing at the Ridley Park yard lacked a nexus with the New Jersey construction site. See 

Astra Pharm., 9 BNA OSHC at 2129.

8 We disagree with Maxim that the Secretary’s characterization of this work as “routine” minimizes 

the complicated and difficult nature of crane disassembly. Rather, the Secretary is simply pointing 

out that there was nothing about disassembling this particular crane for transport to a construction 
6

have led to a different outcome by specifically mentioning the “mass-production” character of the 

units in the holding).

In addition to Cardinal Industries, the judge also correctly relied on the Sixth Circuit’s 

decision in Cleveland Electric Illuminating Co. v. OSHRC, 910 F.2d 1333 (6th Cir. 1990) in 

finding a nexus lacking here. In that case, the court held that training activities at an electric 

company substation were not considered construction work and lacked a nexus to a particular 

construction project because “no actual construction or repair was being performed at the . . . 

training site when the citation was issued,” and the training was general training required for future 

work at any given construction site. Id. at 1336. Maxim contends that its activities are different 

from those in Cleveland Electric in that the training there was not to prepare for a specific

construction project, while the Manitowoc crane being disassembled was destined for a specific 

construction site. In making this argument, however, Maxim ignores the fact that “no actual 

construction or repair was being performed” at its Ridley Park yard. See id. In other words, a key 

element of the court’s rationale was that no such work was being performed at the site where the 

training took place. Here, Maxim’s crane disassembly on the day of the accident took place at its 

maintenance yard, not an active construction site.

The case law also does not support Maxim’s argument that a nexus exists here because one 

of its employees would be operating the crane once it arrived at the construction site. It is true the 

Commission has found that equipment or materials suppliers may be engaged in construction work 

if they perform activities at the worksite that are “an integral part of and cannot be separated from 

the construction activities”—as opposed to the mere delivery of materials or equipment which is 

not construction work. A.A. Will Sand & Gravel Corp., 4 BNA OSHC 1442, 1443 (No. 5139, 

1976); see also Cardinal Indus., 828 F.2d at 378 (“[A]n operation will be considered ‘construction’ 

under the Davis-Bacon Act [and thus the OSH Act]9only if the work is performed on, or in close 

site that was different from disassembling the same crane, or a similar crane, for transport to a nonconstruction/industrial site. The Secretary’s claim is not that this was an easy task, but that it was 

not a customized task.

9 The Davis-Bacon Act’s definition of “construction” is relevant here because after defining the 

term “construction work,” § 1910.12(b) expressly refers to the discussion of the terms 

“construction,” “alteration,” and “repair” in 29 C.F.R. § 1926.13, which in turn explains that those 

terms as used in the Construction Safety Act must be interpreted consistently with those terms as 

used in the Davis-Bacon Act. See Cardinal Indus., 828 F.2d at 376-78. And the Construction 
7

proximity to, the construction site. If not, only the delivery and installation of items fabricated 

offsite, not the fabrication process itself, may be considered ‘construction’ under the Davis-Bacon 

Act” (emphasis added)). Indeed, the Commission in A.A. Will Sand found that the cited employer 

was engaged in construction work where one of its employees delivered gravel to a construction 

site, unloaded it onto a conveyor belt in response to signals from workers at the site, and made 

adjustments to the conveyor itself. 4 BNA OSHC at 1443. And in Anthony Crane Rental Inc. v. 

Reich, the D.C. Circuit found that the cited crane rental company was engaged in construction 

work despite having leased the crane to the customer without a crane operator and not performing 

any construction work itself because, by “ ‘providing [onsite] mechanic services on an ongoing 

and regular basis, [the crane rental company] engaged in activities which were inextricably linked 

to the construction project in question.’ ” 70 F.3d 1298, 1303 (D.C. Cir. 1995) (quoting Anthony 

Crane Rental, Inc., 16 BNA OSHC 2107, 2108 (No. 91-556, 1994)).

According to Maxim, its crane disassembly work should be treated like that of the 

employers in A.A. Will Sand and Anthony Crane—specifically, Maxim claims the employers in 

both of those cases delivered materials and equipment and worked at the site, just as it was 

disassembling the crane for transport to a construction site where one of its employees would 

operate it. But Maxim ignores that the citations in both of those cases involved work that occurred 

on the construction site, not work performed elsewhere before the equipment or materials have

even arrived at the site. Because only the work that occurred at the time of the alleged violation

is relevant here, Maxim’s disassembly of the crane at its Ridley Park yard is not the same as

delivering materials or equipment to, and then working on, a construction site. Put simply, any 

work Maxim was expected to perform at the construction site is not at issue here, only its work at 

the maintenance yard.10

Safety Act is relevant because “the construction industry standards in 29 C.F.R. Part 1926 . . . were 

promulgated pursuant to section 107 of the Contract Work Hours and Safety Standards Act, 40 

U.S.C. § 333 (1982), also known as the Construction Safety Act.” Id. at 376 n.5 (citing 29 C.F.R. 

§ 1926.1). 

10 We are also unconvinced by Maxim’s claim that its disassembly work is an example of an 

activity initiated away from a construction site that can still be considered necessary for and 

directly connected to a particular construction project. Maxim again relies on Anthony Crane, 

arguing that both Maxim and the employer in that case were crane rental companies that provided 

cranes to a construction site along with employees to work onsite (as a mechanic in Anthony Crane

and as a crane operator here). But, as explained above, unlike the citation here, that citation related 
8

In sum, the common thread in the cases in which a nexus was established is missing here—

the violative conditions neither occurred at a construction site nor involved work that occurred as 

part of an active construction project. Accordingly, we find the Secretary has demonstrated that 

Maxim’s disassembly work lacked a nexus to a construction site, and therefore the cited general 

industry standard is applicable to the cited condition.

B. Integral and Necessary Part of Construction Work

Given this conclusion, the second step of the analysis—whether Maxim’s activities were 

“integral and necessary” to construction work—need not be reached. However, we nonetheless

find the Secretary has also demonstrated that Maxim’s work was not an “integral and necessary” 

part of construction work. See Ryder Transp., 24 BNA OSHC at 2062; Cardinal Indus., 828 F.2d 

at 380 n.11 (factors such as the nature of the tasks performed and the employer’s primary function 

become relevant only after a determination that there is a nexus to a construction site).

While there is no question that disassembling a crane could be considered construction 

work, the Commission has held that even “activities that could be regarded as construction work

should not be so regarded when they are performed solely as part of a nonconstruction operation.”

B.J. Hughes, 10 BNA OSHC at 1547 (employer’s cementing work was not construction work 

because it was performed as part of an oil-drilling operation—a nonconstruction operation). In 

addition, such activities are not considered construction work when they are “ancillary to and in 

aid of [an employer’s] primary nonconstruction function.”11 Royal Logging, 7 BNA OSHC 1744, 

to a condition that occurred at the construction site. See Anthony Crane, 70 F.3d at 1303. As such, 

the D.C. Circuit’s decision does not address whether a similar “direct and tangible connection” to 

a construction site would exist if the cited condition had not occurred on a construction site.

Likewise, in National Engineering & Contracting Co. v. OSHRC, the employer was cited under a 

construction standard for a condition that occurred while employees were replacing valves in a 

pump house as part of a larger construction project to upgrade and expand a waste treatment plant. 

838 F.2d 815, 816 (6th Cir. 1987). The Sixth Circuit affirmed the judge’s finding that the valve 

replacement could not be isolated from the project as a whole and viewed as accomplishing a nonconstruction purpose when the employer’s primary purpose at the worksite was to perform 

construction work. Id. at 818. Although Maxim argues that the disassembly work at its yard 

similarly cannot be isolated from the New Jersey construction project as a whole, we agree with 

the Secretary that National Engineering is distinguishable since the employees there were working 

at the construction site and the employer’s primary purpose at the worksite was construction. 

11 Maxim argues that B.J. Hughes and Royal Logging are inapplicable here because they predate 

the Sixth Circuit’s Cardinal Industries decision and because the activities involved in those cases 
9

1750 (No. 15169, 1979) (logging company’s “roadbuilding activities, rather than being the purpose 

of Respondent’s work, [we]re ancillary to and in aid of its primary nonconstruction function to cut 

and deliver logs”), aff’d, 645 F.2d 822 (9th Cir. 1981). But see Clean Fuels, No. 15-1121, at 4-5 

(OSHRC 2020) (cleaning fuel tanks at construction site of newly constructed gas station was 

construction work because it was “inextricably linked” to the construction). 

As to whether Maxim’s primary function at the Ridley Park yard where the disassembly 

took place is construction, we conclude that it is not. Maxim’s “core business” (in the words of 

its Safety Director) is to lease cranes to companies in the construction and other industries, as well 

as to provide crane operators and personnel for rigging and maintenance. And the primary purpose 

of its maintenance yard is to serve as a satellite location to store and maintain crawler, as well as

other, cranes for lease to industrial and construction worksites throughout the region. As the judge 

noted, the activities that take place at the yard—including logistics, crane assembly and 

disassembly, loading and unloading tractor trailers, and moving pieces of equipment and crane 

sections—are nonconstruction activities.

Disassembly of the Manitowoc crane was thus part of Maxim’s primary function at the 

yard, which was preparing cranes for lease to other companies. This particular crane, and most 

other cranes at the yard, could not be transported to, and so could not be leased to, other companies 

without first being disassembled. Accordingly, if Maxim decided to assemble a particular crane 

for its own nonconstruction use at the yard—as it did with the Manitowoc crane—Maxim would 

have to disassemble it in order to lease the crane to a customer. That the crane being disassembled 

on April 14 was designed for use on construction sites and was rented to Maxim’s construction 

customers does not change the fact that its disassembly occurred to prepare the crane for rental—

a nonconstruction purpose. Therefore, we find that the disassembly activities here were performed 

as part of Maxim’s rental operation and thus were “ancillary to and in aid of” Maxim’s primary 

lacked a nexus to a specific construction project. As the Secretary points out, the court’s decision 

in Cardinal Industries simply clarified that an employer’s work must have a nexus to a 

construction site. The Commission and the courts have continued to treat pre-Cardinal Industries 

decisions as good law when they do not contradict the clarification provided by the Sixth Circuit’s 

decision. See, e.g., Cleveland Elec., 910 F.2d at 1335 (citing Royal Logging); Clean Fuels, No. 

15-1121, at 5 (OSHRC 2020) (citing B.J. Hughes and Royal Logging); Ryder Transp., 24 BNA 

OSHC at 2062 n.3 (citing to B.J. Hugues and distinguishing Royal Logging on the facts).
10

nonconstruction function of leasing cranes to its customers. See B.J. Hughes, 10 BNA OSHC at 

1547; Royal Logging, 7 BNA OSHC at 1750.

II. Whether § 1926.1423(f) nonetheless applies to the crane’s disassembly

Maxim makes several arguments to support its contention that the requirements of 

§ 1926.1423(f) should apply to its disassembly work instead of the cited general industry standard 

irrespective of whether Maxim was engaged in construction work. We find none of the company’s 

claims persuasive.

First, Maxim relies on a portion of the preamble to the Cranes and Derricks in Construction 

Final Rule to support its contention that OSHA deliberately placed all fall protection standards 

regarding cranes and derricks in Subpart CC of Part 1926, and thus did not intend to limit the 

applicability of those standards solely to construction. But Subpart CC’s scope provision reads: 

“This standard applies to power-operated equipment, when used in construction, that can hoist,

lower and horizontally move a suspended load.” 29 C.F.R. § 1926.1400(a) (emphasis added). 

This plain language is consistent with the preamble, which states that “the standard applies to only 

equipment used for construction activities.” Cranes and Derricks in Construction, 75 Fed. Reg. 

47,906, 47,923 (Aug. 9, 2010) (Final Rule); see Arcadian Corp., 17 BNA OSHC 1345, 1348 (No. 

93-3270, 1995) (considering legislative history where plain meaning of statutory language is clear 

only to determine whether there is express legislative intent to the contrary), aff’d, 110 F.3d 1192 

(5th Cir. 1997). 

Section 1926.1423 itself specifies that “[p]aragraph[] . . . (f) of this section appl[ies] to all 

equipment covered by this subpart except tower cranes.” 29 C.F.R. § 1926.1423(a)(1) (emphasis 

added). And the portion of the preamble discussing § 1926.1423 states, “subpart CC specifies the 

circumstances in which fall protection must be provided to workers on equipment covered by 

subpart CC” and discusses the fact that “[f]alls have traditionally been the leading cause of death 

among construction workers.” Cranes, 75 Fed. Reg. at 47,999 (emphases added). Thus, the scope 

provision plainly limits applicability of the standard to cranes when they are used in construction, 

a reading that—contrary to Maxim’s claim—the preamble supports.12

12 Maxim also argues that because § 1926.1423 is the only OSHA standard that addresses crane 

assembly and disassembly, it is more specifically applicable than the general industry standard and 

should apply here. However, a specific standard will prevail over a general standard only if both

standards are applicable to the condition. 29 C.F.R. § 1910.5(c)(1); see also OSHA, CPL-02-00-
11

Second, Maxim alleges that § 1926.1423(f) reflects OSHA’s determination of the safest 

requirements for crane disassembly and that, consequently, complying with the cited general 

industry standard poses a greater hazard than complying with § 1926.1423(f). Maxim explains 

that the only feasible place for employees to tie off on a lattice boom is at their feet on the boom 

itself, which creates two problems: (1) the lanyard poses a tripping and entanglement hazard that 

makes a fall more likely; and (2) at heights of less than 15 feet, a personal fall arrest system either 

would not stop a fall before the employee hits the ground or the lanyard would have to be so short 

that performing the required tasks would be impossible. See Cranes, 75 Fed. Reg. at 48,002

(identifying the difficulty of having a lanyard both short enough to prevent the employee from 

hitting the ground and long enough to afford the employee the range of movement necessary for 

the work). 

In response, both the judge and the Secretary point to the compliance officer’s testimony 

that a portable anchorage point could be used. Maxim disputes the feasibility of that option but 

offered no rebuttal to that testimony. Morrison-Knudsen Co., 16 BNA OSHC 1105, 1119 (No. 

88-572, 1993) (Secretary’s unrebutted evidence is sufficient to sustain his case). Even if using a 

portable anchorage point was infeasible and tying off at an employee’s feet at elevations below 15 

feet would be more dangerous than not tying off, Maxim remains adamant that it is not alleging a 

greater hazard defense here, only challenging the general industry standard’s applicability. And 

as discussed above, § 1926.1423 plainly states it is applicable only to construction work.13

Finally, Maxim argues that public policy requires the Commission to apply § 1926.1423(f)

to the company’s disassembly activities because our decision here will mean that different fall 

protection standards apply depending on where a crane is assembled or disassembled, even though 

the potential hazards are identical regardless of where the activities take place.14 More broadly, 

160, Field Operations Manual, ch. 4 ¶ I.A.3 (Aug. 2, 2016) (restating § 1910.5(c)(1)’s 

requirement). Here, as we have already found, § 1926.1423(f), by its own terms, does not apply 

because Maxim was not engaged in construction work.

13 Furthermore, the injured employee testified that Maxim sometimes assembles and disassembles 

cranes at sites that have a strict six-foot fall protection rule. In those situations, Maxim’s 

employees “abide by [those companies’] safety standards.”

14 Thus, for example, the assembly of the Manitowoc crane at the New Jersey construction site, 

and its later disassembly at the site after completion of the project in order to transport it back to 

Maxim’s yard, would constitute construction activities, subject to the construction standard.
12

Maxim argues that applying subpart CC based on the location of the crane’s operation means that 

employers could ignore other critical safety standards included in subpart CC, even though the 

activities involve the same tasks and the same inherent risks. 

OSHA directly addressed this policy concern in the final rule preamble when it explained 

that “[e]mployers who use covered equipment for both general industry work and construction 

work would not be required to comply with subpart CC when the equipment is used for general 

industry work and not construction work.” Cranes, 75 Fed. Reg. at 47,923. OSHA thus 

deliberately chose not to make these standards generally applicable, and the Commission lacks 

any authority to broaden the standard so that it applies to employers in all industries. As the 

Commission has explained:

An employer who disagrees with a standard, on the basis that its particular 

requirements are arbitrary or inappropriate, has two options. The employer may 

apply for a variance. The employer may also seek to have the Secretary alter [the] 

standard through rule-making proceedings. Such alterations to OSHA’s safety 

standards cannot, however, be obtained in adjudicatory proceedings before the 

Commission, which only concerns itself with the employer’s alleged violation of 

an existing standard. In these proceedings, an employer cannot question a 

standard’s wisdom.

Carabetta Enters. Inc., 15 BNA OSHC 1429, 1432 (No. 89-2007, 1991) (citations omitted). 

Consequently, whether there should be a consistent set of rules for crane assembly and 

disassembly, or even for crane operations generally, across general industry and construction sites, 

is an issue for OSHA to address through rulemaking. Accordingly, we affirm Citation 1, Item 1.15

SO ORDERED.

/s/

Cynthia L. Attwood

Chairman

/s/

Amanda Wood Laihow

Dated: May 20, 2021 Commissioner

15 Maxim does not challenge either the characterization of, or the $12,675 penalty assessed for, 

Item 1, and we see no reason to disturb the judge’s findings on these issues. See, e.g., KS Energy 

Servs., Inc., 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416, 2008) (affirming alleged 

characterization and assessing proposed penalty where characterization and penalty were not in 

dispute).
Some personal identifiers have been redacted for privacy purposes.

United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457 

 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC DOCKET NO. 17-1894 

MAXIM CRANE WORKS, 

 and its successors, 

 Respondent. 

Appearances: Kate O’Scannlain, Solicitor of Labor 

 Oscar L. Hampton III, Regional Solicitor 

 Brittany M. Williams, Attorney 

 U.S. Department of Labor, Office of the Solicitor, Philadelphia, Pennsylvania 

 For the Complainant 

 

 Randolph T. Struk, Esquire 

 Clark Hill PLC, Pittsburgh, Pennsylvania 

 For the Respondent 

Before: Covette Rooney 

 Chief Administrative Law Judge 

DECISION AND ORDER 

 Maxim Crane Works (Respondent) is a crane rental company. On Friday, April 14, 2017, 

a crane assembly/disassembly director who worked for Respondent fell approximately 9 feet to 

the ground from the lattice boom of a Manitowoc 14000 crane as it was being disassembled at 

Respondent’s facility in Ridley Park, Pennsylvania. The worker had no fall protection and was 
2

hospitalized, having suffered serious injuries including a concussion as a result of the fall. The 

Manitowoc 14000 was being disassembled for the purpose of transporting it from Respondent’s 

facility in Ridley Park to a construction worksite in New Jersey. 

The Occupational Safety and Health Administration (OSHA) investigated this matter on 

Tuesday, April 18, 2017 pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§§ 651-678 (OSH Act). After its investigation, OSHA signed, dated and mailed to Respondent, 

on August 8, 2017, a two-item serious citation alleging violations of OSHA’s general industry 

standards found at 29 C.F.R. Part 1910, and proposing a total penalty of $25,350. Respondent 

received the citation on October 17, 2017 and filed a notice of contest on November 3, 2017, 

bringing this matter before the Occupational Safety and Health Review Commission 

(Commission). A hearing was held in Philadelphia, Pennsylvania on October 23 and 24, 2018. 

Both parties filed post-hearing briefs and post-hearing reply briefs. As discussed below, the 

citations and proposed penalties are affirmed. 

JURISDICTION AND COVERAGE

The Commission gains jurisdiction to adjudicate an alleged violation of the OSH Act by 

an employer if the employer is engaged in business affecting commerce within the meaning of 

section 3(5) of the Act and if the employer timely contests the OSHA Citation. 29 U.S.C. 

§§ 652(5), 659(c). The record establishes that Respondent, as of the date of the alleged violation, 

was an employer engaged in business affecting commerce within the meaning of section 3(5) of 

the Act. 29 U.S.C. § 652(5). See Complaint & Answer at ¶¶ 4; Joint Prehearing Statement at 9-

10 ¶ V. 

It is also determined that Respondent filed a timely notice of contest. For the purposes of 

determining jurisdiction, the relevant consideration is the timeliness of Respondent’s notice of 
3

contest, not the timeliness of the Secretary’s citation.1 29 U.S.C. 659(c); see also Yelvington 

Welding Serv., 6 BNA OSHC 2013, 2016 (No. 15958, 1978) (construing 29 U.S.C. § 658(c) 

[section 9(c) of the OSH Act relating to the 180-day timeline to issue a citation] as a statute of 

limitations rather than an absolute jurisdictional bar to the issuance of a citation after six months.). 

The OSH Act allows 15 working days “from the receipt” of the citation by the employer 

for the employer to notify the Secretary of its intent to contest the citation. 29 U.S.C. § 659(a) (If 

an employer fails to file a timely notice of contest, “the citation and the assessment, as proposed, 

shall be deemed a final order of the Commission and not subject to review by any court or 

agency.”). While the citation for this matter was dated and sent by certified mail on August 8, 

2017, the record establishes that Respondent did not receive the first mailing of the citation. 

Instead, Respondent received the citation by a second mailing, via United Parcel Service ground 

delivery, signed as received on October 17, 2017. Within 15 working days of October 17, 

Respondent notified the Secretary of its intent to contest the citation on November 3, 2017. 

Therefore, Respondent’s notice of contest is timely. 

Based upon the record, the undersigned concludes that the Commission has jurisdiction 

over the parties and subject matter in this case, and Respondent is covered under the Act.

1

 The timeliness of the citation was a subject of Respondent’s August 15, 2018 motion for summary 

judgment, which was denied on September 10, 2018 and then denied reconsideration on September 

21, 2018. See Respondent Maxim Crane Works LP’s Motion for Summary Judgment (Aug. 15, 

2018); Respondent Maxim Crane Works LP’s Memorandum of Law in Support of Motion for 

Summary Judgment (Aug. 15, 2018); Secretary’s Response in Opposition to Respondent’s Motion 

for Summary Judgment (Aug. 30, 2018); Order Denying Respondent’s Motion for Summary 

Judgment (Sept. 10, 2018); Respondent Maxim Crane Works LP’S Sur-Reply to the Secretary’s 

Response in Opposition to Respondent’s Motion for Summary Judgment (Sept. 10, 2018); 

Secretary’s Response in Opposition to Respondent’s Motion for Reconsideration (Sept. 18, 2018); 

Order Denying Respondent’s Motion for Reconsideration (Sept. 21, 2018). After a hearing with 

testimony regarding this matter, this issue is adjudicated herein. 
4

STIPULATIONS 

The parties stipulated to the following facts: 

1. Maxim has a web site at www.cranerental.com. 

2. On April 14, 2017, Maxim had a facility located at 601 W. Chester Pike, Ridley Park, PA 

19078 (hereafter the "worksite"). 

3. On April 14, 2017, Maxim employee [redacted] was part of a work crew that was 

disassembling the lattice boom of the Manitowoc 14000 crane at the worksite. 

4. On April 14, 2017, during the course of disassembling the lattice boom of the Manitowoc 

14000 crane, sections of the lattice boom were at times rigged to a Liebherr LRl400 crane. 

5. On April 14, 2017, [redacted] was on top of the lowered lattice boom of the Manitowoc 

14000 during portions of the disassembly process. 

6. On April 14, 2017, while on top of the lowered lattice boom of the Manitowoc 14000, 

[redacted] was approximately nine and a half feet above the ground. 

7. On April 14, 2017, [redacted] was not using fall protection while on top of the lowered 

lattice boom of the Manitowoc 14000. 

8. On April 14, 2017, [redacted] fell off the lowered boom of a Manitowoc 14000 crane and 

was treated by medical professionals at a local hospital. 

9. On April 14, 2017, Maxim reported [redacted]'s accident to OSHA via the hotline. 

10. OSHA conducted an inspection at Maxim's Ridley Park facility, and subsequently issued 

a Citation and Notification of Penalty to Maxim. 

(“Stipulations”; Joint Prehearing Statement at 9.) 

BACKGROUND 

Respondent’s core business is to provide lifting services to its customers. (Tr. at 377.) 

Respondent rents out cranes of all different types and all different sizes, and also provides 

competent rigging, operational and maintenance personnel for its cranes on Respondent’s 

customers’ worksites. (Tr. at 378.) Respondent’s customers include “anybody with a good credit 
5

reference,” but, according to Respondent’s Safety Director, John Merrill, 70 to 75 percent of 

Respondent’s customers are in the “construction industry” whereas the other 25 to 30 percent of 

its customers are from “some other industry.” (Tr. at 378-379.) Respondent serves customers 

nationwide and employs 2,500 workers. (Tr. at 49; Ex. C-4 at 1.) At Respondent’s “satellite” 

worksite in Ridley Park, Respondent employs eight workers. (Tr. at 49, 311; Ex. C-4 at 1.) 

In its Ridley Park yard, Respondent stores, maintains and uses the cranes that are also 

eventually rented out to “industrial facilities in the southern part of the region.” (Tr. at 318-319.) 

Respondent’s Regional Safety Manager, Joseph Shinn, testified that, in between rentals, 

Respondent uses the cranes in the Ridley Park yard to load and unload tractor trailers, assemble 

and disassemble other cranes, and move pieces of equipment or crane sections throughout the yard. 

(Tr. at 320.) 

At the time of the incident, Respondent was in the process of disassembling the Manitowoc 

14000 crane (Manitowoc) in preparation for its transportation to one of Respondent’s customers, 

Durr Mechanical, for a steel erection construction site in New Jersey. (Tr. at 406-407.) 

Respondent enlisted the assistance of another one of its cranes it had at the Ridley Park yard, a 

Liebherr LR1400 (Liebherr), to aid the disassembly process of the Manitowoc. (Stipulations at 

¶ 4.) Disassembly of the Manitowoc at the Ridley Park yard was estimated to take two to three 

days. (Tr. at 408, 421.) The Manitowoc would then be transported to New Jersey in sections, with 

state issued transportation permits allowing the large sections to travel. Once at the Durr 

Mechanical construction site in New Jersey, the Manitowoc would be assembled, on the 

construction site, for use at that location. Respondent’s employees were scheduled to operate the 

Manitowoc at the Durr Mechanical location in New Jersey. (Tr. at 407, 413.) 
6

On the day of the incident in Ridley Park, six Respondent employees were directed to 

disassemble the Manitowoc. (Ex. C-20.) The order to disassemble the crane came from 

Respondent’s Operations Department, located 40 miles away from the Ridley Park yard. The 

Operations Director was John Mongon. Mongon directed Ridley Park Branch Manager “DJ” to 

disassemble the crane, and DJ directed mechanic [redacted] and the crew of five other Respondent 

workers, including Jacob Stanchock, Dante Puzzangara, Jonathan Labuski, Charles Boone and 

Harry Duff, to accomplish that task. (Tr. at 224, 244, 282; Ex. C-20.) Respondent management 

on site at the Ridley Park yard at the time of the incident included Branch Manager “DJ” and 

Safety Manager Joseph Shinn. DJ and Shinn were in the shop at the Ridley Park yard at the time 

of the incident, in view of the disassembly process but not participating in the disassembly process. 

(Tr. at 91, 231, 233, 244, 254-255.) Shinn was part of the management team but did not direct 

work. (Tr. at 317-318.) Shinn testified that he did not know that the Manitowoc was being 

disassembled that day; he found out when he got a telephone call notifying him “to come to the 

yard right as the accident happened.” (Tr. at 318.) Joe Shinn called 911. (Tr. at 268; Ex. C-61.) 

Incident

Respondent assigned 6 workers to disassemble the Manitowoc on the day of the incident. 

[redacted] led the disassembly crew, directing the movements and sequence of events of the crew 

during the disassembly process. (Tr. at 222-223.) It is undisputed that, while [redacted] directed 

the disassembly process, all of the workers had “interchangeable” positions and accomplished the 

task together and [redacted] had no management authority. (Tr. at 222-224, 283.) 

The Manitowoc is a large crawler crane. It is designed to work on “uneven ground, muddy 

ground, an area that needs improvement,” because “the design of the crane is made so that it’s very 

stable, inherently stable. It also has a lot of traction to be moving around on lousy ground.” (Tr. 
7

at 379.) The Manitowoc is so large that it must be disassembled and transported in sections from 

location to location and the operator’s manual contains many warnings on crushing, falling, 

collapsing hazards while operating, assembling and disassembling the crane. See Exs. C-36, R36A (Manitowoc operator manual). Indeed, the Manitowoc requires another crane to assist in its 

disassembly – in this case, the Liebherr. [redacted] and the other crewmembers were using the 

Liebherr to disassemble the Manitowoc’s boom on the day of the incident. The record does not 

contain much information, such as an operator manual, on the Liebherr other than it was used at 

the Ridley Park yard to hoist sections of the Manitowoc during the disassembly process on the day 

of the incident. 

The following facts are not in dispute: no crew member, including [redacted], wore fall 

protection while working to disassemble the Manitowoc that day. The Manitowoc’s boom is not 

equipped with a railing or anything else to prevent a fall. The Manitowoc’s boom was lowered 

and resting on the ground around the time of the incident. The boom itself consists of several 

sections – starting with “the head” at the very end of the boom followed by two 40- foot sections, 

and then, as relevant to this case, 1) a 10-foot section, 2) an 18-foot section, and finally, 3) the heel 

(the section of the boom that connects to the cab of the crane). (Tr. at 23, 386; Exs. C-20, C-22, 

R-22A.) Around the time of the incident, Respondent had disconnected the head and the two 40-

foot sections from the boom. (Tr. at Ex. C-20.) This case focuses on the last three sections: 1) the 

10-foot section, 2) the 18-foot section, and 3) the heel. 

All three of these sections were connected to each other by 25-30-pound steel pins – each 

2.5 to 3 inches in diameter – and the task at the time of the incident that day was to disconnect the 

10-foot section from the 18-foot section (which was still connected to the heel) by removing the 

steel pins that joined them. (Tr. at 64-65, 182-183, 227-228, 383.) While on the Manitowoc’s 
8

boom, before the three sections were disconnected from each other, [redacted] was standing at a 

height of 9.5 feet above the ground. Additionally, while standing on the Manitowoc’s boom, 

before the three sections were disconnected from each other, the Manitowoc’s 18-foot section of 

the boom was rigged to the Liebherr while [redacted] was standing on it. (Tr. at 227, 266, 297; 

Exs. C-4 at 2, C-20, C-61 at 1.) 

The Liebherr was used to hoist the 18-foot section of the Manitowoc boom to aid in the 

release of the 25-30-pound steel pins, which were to be removed by Puzzangara on the ground 

below. (Tr. at 64-65, 266-267, 297-298; Exs. C-4 at 2, C-61 at 2.) Respondent concedes that the 

Liebherr raised and lowered the 18-foot section of the Manitowoc’s boom in the following manner: 

26. Any alleged hoisting of a load that serves as the basis for Maxim’s alleged 

violation of 29 CFR 1910.180(h)(3)(v) was limited to lifting an 18-foot section of 

the boom of the Manitowoc crane no more than 1⁄4 inch. HT at p. 272, LL 7-20.

2

 

27. Any alleged lowering of a load that serves as the basis for Maxim’s alleged 

violation of 29 CFR 1910.180(h)(3)(v) was limited to lowering an 18-foot section 

of the boom of the Manitowoc crane no more than 2-3 inches. HT at p. 273, LL 13-

23. 

(Resp’t Br. at 6.) After the pins were removed, the 10-foot section failed to disengage from the 

18-foot section of the Manitowoc boom. (Tr. at 267, 298; Ex. C-61 at 2.) [redacted] was on the 

top of the boom at that time, and as he turned to walk toward the heel, the 10-foot section 

unexpectedly disengaged from the 18-foot section of the boom, causing [redacted] to lose his 

balance and fall approximately 9.5 feet to the ground below. (Tr. at 52-53, 64, 228-229, 267-268, 

298; Exs. C-4 at 2-3, C-61 at 2.) [redacted] suffered multiple lacerations, a fractured scapula, a 

fractured skill and a concussion. (Tr. at 233; Stipulations at ¶ 8.) 

2

 The reference to “HT” is a direct quote from Respondent’s brief and refers to the “Hearing 

Transcript.” 
9

OSHA Investigates and Issues a Citation 

On Monday, April 17, 2017, OSHA directed OSHA compliance safety and health officer 

(CO) Herbert Allen Wilcox3 to investigate this matter, following Respondent’s report to OSHA of 

[redacted]’s hospitalization. (Tr. at 36, 39, 120-121; Ex. C-2.) CO Wilcox arrived at Respondent’s 

Ridley Park yard the following day, April 18, to begin the investigation. CO Wilcox’s 

investigation lasted 3.5 to 4 hours, during which he interviewed management and non-management 

employees, took photographs and measurements, and obtained copies of Respondent’s incident 

reports, photographs, safety and health manual, and the Manitowoc’s operator’s manual. (Tr. at 

36, 39; Exs. C-3-C6, C-11, C-22-C-23, C-36-38.) 

CO Wilcox first spoke with John Mongon, Respondent’s operations manager, and Joe 

Shinn, Respondent’s safety manager. (Tr. at 40.) CO Wilcox testified that they told him that 

Respondent requires fall protection above 15 feet and that Respondent has a progressive 

disciplinary policy for enforcement of its safety rules that includes a verbal warning, written 

warnings and then termination. (Tr. at 41.) CO Wilcox then walked Respondent’s worksite and 

took notes. (Tr. at 40-43, 49-52; Ex. C-3 (CO Wilcox’s notes interviewing John Mongon (“JM”) 

and Joe Shinn (“JS”)), C-4 (CO Wilcox’s field notes).) He interviewed several employees, 

including Jonathan Labuski, who provided a signed written statement to CO Wilcox. (Tr. at 259-

269, 367-369; Ex. C-19.) CO Wilcox testified that the workers told him that they had seen 

3

 CO Wilcox has performed 63 inspections over the course of the two years he has been a 

compliance safety and health officer at OSHA. (Tr. at 28.) Prior to joining OSHA, CO Wilcox 

spent approximately 18 years in the health and safety industry, working as a consultant for a health 

and safety and environmental consulting firm, and performing as a safety director at a 

manufacturing and sawmill facility. (Tr. at 28-29.) CO Wilcox has an associate’s degree in 

bioenvironmental engineering and an associate’s degree in allied health sciences. He is in his final 

semester of a bachelor’s degree in environmental science with a concentration in safety and health. 

(Tr. at 29.) 
10

instances of verbal reprimands for safety violations, but that no worker told him that they had heard 

of written warnings or terminations due to safety warnings. (Tr. at 55.) CO Wilcox also testified 

that he received no information from Respondent that any worker had been disciplined for “riding” 

a load. (Tr. at 110-111.) 

After his investigation, CO Wilcox developed an OSHA violation worksheet that served 

as a basis for his recommendation for the OSHA citations at issue here. (Tr. at 71-74; Ex. C-19.) 

At that point, according to CO Wilcox, his recommendations are reviewed and issued by the OSHA 

area director. (Tr. at 27.) The Citation in this matter was signed by Jorge Alzata for OSHA Area 

Director Theresa Downs on August 8, 2017. (Citation at 7, 9.) 

OSHA receptionist Pamela Graham testified about what happened to the Citation in this 

matter after August 8, 2017. (Tr. at 330-367.) Ms. Graham testified that she was assigned the task 

of mailing out the Citation to Respondent. (Tr. at 333.) Ms. Graham sent the Citation to 

Respondent via United States Postal Service certified mail on August 8, 2017. (Tr. at 335.) Ms. 

Graham testified that her diary sheet for this case, and the USPS tracking system4

 using the 

4

 Ms. Graham tracked and printed out the tracking results from the USPS tracking website of the 

certified mailing of the Citation package using its designated USPS certified mailing tracking 

number on October 16, 2017 and October 31, 2017. (Tr. at 336-343; Exs. C-47-C-48.) The 

October 16 printout does not show events earlier than September 11, 2017 as it appears that the 

events field is not expanded any earlier than that date on the printout. (Ex. C-47 at 1.) Respondent 

did not object to the admission of the October 16 printout at the hearing. (Tr. at 337.) The October 

31 printout, however, does show earlier events, starting on August 9, 2017. (Ex. C-48 at 3.) 

Respondent raised a hearsay objection to the admission of the October 31 printout at the hearing. 

(Tr. at 338-342.) 

Respondent argued that “there’s been an implication in some pleadings that have been 

filed in this case that we somehow refused to take [the delivery of the citation] or not.” (Tr. at 

341.) Over Respondent’s hearsay objection, the October 31 was admitted under Federal Rule of 

Evidence 807 “Residual Exception” as the information within the October 31 printout comes 

directly from the USPS tracking website and because it is more probative than any other 

evidence that can be obtained through reasonable efforts (such as tracking down the “specific 

USPS employee who attempted to deliver the certified mailing”). (Tr. at 341-342.) The 
11

tracking number on the certified mailing receipt, confirmed that she mailed the Citation for this 

matter on August 8, 2017. (Tr. at 335; Ex. C-45-C-48.) 

Ms. Graham testified that the certified mailing was never returned to the OSHA office by 

the USPS. (Tr. at 350.) She testified that she was alerted to a possible issue with the certified 

mailing of the Citation by an October monthly report circulated by her managers regarding dates 

and deadlines for various employers. (Tr. at 343, 352-355.) After checking the certified mailing 

tracking number on the USPS tracking website on October 16, 2017, Ms. Graham mailed the 

Citation a second time, using United Parcel Service (UPS) Ground. (Tr. at 344; Ex. C-49-C-51.) 

Ms. Graham then checked the UPS tracking system, which notified her that this second mailing of 

the Citation was delivered to Respondent on October 17, 2017. (Tr. at 348.) 

DISCUSSION 

The Citation Was Timely 

Respondent claims that the Secretary issued the Citation for this matter in an untimely 

manner, in violation of the OSH Act, and that therefore the Citation should be vacated, and the 

penalties should be nullified. (Resp’t Br. at 22-24.) The Secretary argues that Respondent 

misinterprets the OSH Act, that the Secretary indeed issued the Citation in a timely manner, in 

accordance with the OSH Act, and that Respondent’s argument should therefore be rejected. 

(Sec’y Reply Br. at 1-4.) The undersigned agrees with the Secretary. 

Section 9(c) of the OSH Act states “[n]o citation may be issued under this section after the 

expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). The 

undersigned notes that the October 31 printout indicates that on August 28, 2017, the certified 

mailing was marked as “Unclaimed/Being Returned to Sender.” (Ex. C-48 at 2.) While 

noteworthy, this information is not necessary and is not used by the undersigned to conclude that 

OSHA timely issued the citation in this matter, as discussed herein. 
12

Commission looks “to § 10(a) [29 U.S.C. § 659(a)] as governing the service of citation, as well as 

the notification of proposed penalty, where as here both documents were served together.” B. J. 

Hughes, Inc., 7 BNA OSHC 1471, 1474 n.6 (No. 76-2165, 1979) (holding that where “the citation 

and notification of proposed penalty were in fact sent together, [they] must stand or fall together 

insofar as the validity of their service is concerned.”). Section 10(a) of the OSH Act states in 

pertinent part: 

If, after an inspection or investigation, the Secretary issues a citation under section 

9(a) of this Act, he shall, within a reasonable time after the termination of such 

inspection or investigation, notify the employer by certified mail of the penalty, if 

any, proposed to be assessed under section 17 of this Act and that the employer has 

fifteen working days within which to notify the Secretary that he wishes to contest 

the citation or proposed assessment of penalty. 

29 U.S.C. § 659(a). The Commission has held that “ordinarily, nonreceipt or refusal to accept 

mail does not affect the validity of service. 4 C. Wright & A. Miller, Federal Practice and 

Procedure § 1148 at 590–91 (1969).” George Barry, et al., d/b/a Union Waterproofing, Roofing 

& Painting Co., 9 BNA OSHC 1264, 1266-1267 (No. 77-2720, 1981); see also Donald K. Nelson 

Constr., Inc., 3 BNA OSHC 1914, 1915 (No. 4302, 1976) (“Rules governing service are designed 

to apply generally to all cases in order that an objective determination of the adequacy of service 

may be made.”). 

 The relevant facts for this issue are these: the occurrence of the alleged violation in this 

matter happened on April 14, 2017. The date of the Area Director’s authorized individual’s 

signature on the Citation and Notification of Penalty is August 8, 2017, slightly less than four 

months from the date of the incident. The Citation and Notification of Penalty was mailed by 

certified mail that same day on August 8, 2017. Respondent did not receive the certified mailing 

of the Citation and Notification of Penalty. Respondent received the second mailing of the August 
13

8, 2017 signed Citation and Notification of Penalty, sent by UPS Ground, on October 17, 2017, 

approximately three days after the end of the six-month statute of limitations had run. 

Respondent argues that sections 9(c) and 10(a) impose a duty on the Secretary “to issue 

and serve” the Citation within six months of the alleged violation. (Resp’t Br. at 24.) Respondent 

points to the following excerpt from OSHA’s field operations manual (FOM): “ ‘a citation shall 

not be issued where any alleged violation last occurred six months or more prior to the date on 

which the citation is actually signed, dated and served by certified mail as provided by § 10(a) of 

the Act. FOM, CPL 02-00-160, chapter 5, ¶ XI.A.’ ” (Resp’t Br. at 22-23) (emphasis by 

Respondent). Respondent claims that because it received the Citation more than six months after 

April 14, 2017, “the Secretary failed to issue and serve the Citation within the statute of limitations 

period, as required by §§ 9(c) and 10(a) of the OSH Act[.]” (Resp’t Br. at 24) (emphasis in the 

original). 

Here, even following Respondent’s logic, the Secretary issued the Citation and Notification 

of Penalty in a timely manner. The record amply establishes that OSHA in fact sent the Citation 

and Notification of Penalty by certified mail on August 8, 2017, well within the six-month statute 

of limitations.5

 The record also establishes that Respondent was in nonreceipt of the August 8, 

2017 certified mailing of the Citation and Notification of Penalty. Thus, service of the August 8, 

2017, certified mailing of the Citation and Notification of Penalty was still valid, even though 

5

 Both parties discussed Earth Developers, Inc., 27 BNA OSHC 1030 (No. 17-1120, 2017) (ALJ), 

a case where the citation was deemed untimely because the record established that it was mailed 

after the statute of limitations had run. (Resp’t Br. at 23-24; Sec’y Reply Br. at 3.) The 

undersigned agrees with the Secretary that this case is non-precedential and distinguishable. Leone 

Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976) (holding that unreviewed administrative 

law judge decision does not constitute binding precedent for the Commission). Here, unlike the 

facts in Earth Developers, the record amply establishes that the Secretary sent the Citation and 

Notification of Penalty by certified mail within the statute of limitations timeframe. 
14

Respondent did not receive it. George Barry, et al., d/b/a Union Waterproofing, Roofing & 

Painting Co., 9 BNA OSHC at 1266-1267. Furthermore, Respondent has not claimed any sort of 

prejudice in presenting its case by receiving the second mailing of the Citation and Notification of 

Penalty approximately three days after the end of the six-month timeframe. Gen. Dynamics Corp., 

Elec. Boat Div., Quonset Point Facility, 15 BNA OSHC 2122, 2125 (No. 87-1195, 1993) (“Under 

long-established Commission precedent, the employer must establish such prejudice, to warrant 

vacating the citation for lack of ‘reasonable promptness.’ ”). 

To the extent that Respondent is arguing that the OSH Act mandates that the Citation was 

issued only upon its receipt, the undersigned is not persuaded. The word “receipt” in section 10(a) 

is separate from the word “issued” and refers to the starting point of the separate 15-day period the 

employer has to contest the Citation that has been issued: 

If, within fifteen working days from the receipt of the notice issued by the Secretary 

the employer fails to notify the Secretary that he intends to contest the citation or 

proposed assessment of penalty, and no notice is filed by any employee or 

representative of employees under subsection (c) within such time, the citation and 

the assessment, as proposed, shall be deemed a final order of the Commission and 

not subject to review by any court or agency.

29 U.S.C. § 659(a) (emphasis added). Indeed, the Commission has examined the legislative 

history of the OSH Act and has determined that, regarding the service of the Citation, “the 

distinction between citations and notices of proposed penalties is deliberate, for Congress 

explicitly rejected a provision that would have combined proposed penalties with the issuance of 

a citation.” B. J. Hughes, Inc., 7 BNA OSHC at 1474 n.6 citing Subcommittee on Labor of the 

Committee on Labor and Public Welfare, United States Senate, Legislative History of the 

Occupational Safety and Health Act of 1970, 92nd Cong., 1st Sess., p. 1202.6

6

 The undersigned also finds that the Secretary’s arguments regarding his interpretation of the word 

“issue” to be reasonable. The Secretary argues that he has “consistently and reasonably interpreted 
15

Accordingly, the undersigned finds that the Citation in this matter was timely. 

The Citation Items Are Affirmed

To prove a violation of an OSHA standard, the Secretary must establish that (1) the cited 

standard applies, (2) there was a failure to comply with the cited standard, (3) employees had 

access to the violative condition, and (4) the employer knew or could have known of the condition 

with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 2126, 2129 (No. 

78-6247, 1981) aff’d in relevant part, 681 F.2d 691 (D.C. Cir. 1980). A violation is “serious” if a 

substantial probability of death or serious physical harm could have resulted from the violative 

condition. 29 U.S.C. § 666(k). 

Serious Citation 1, Item 1: Fall Protection 

The Secretary claims that Respondent violated 29 C.F.R. § 1910.28(b)(1)(i), which 

requires: 

Except as provided elsewhere in this section, the employer must ensure that each 

employee on a walking-working surface with an unprotected side or edge that is 4 

feet (1.2 m) or more above a lower level is protected from falling by one or more 

of the following: (A) Guardrail systems; (B) Safety net systems; or (C) Personal 

fall protection systems, such as personal fall arrest, travel restrain, or position 

systems. 

29 C.F.R. § 1910.28(b)(1)(i). The Secretary alleges that Respondent “did not ensure that each 

employee on a walking-working surface with an unprotected side or edge that was 4 feet (1.2 m) 

or more above a lower level was protected from failing by one or more the following: Guardrail 

systems, safety net systems, or personal fall arrest systems: 

‘issuance’ as used in § 9(c) to mean ‘to sign and send by certified mail[,]’ and that he has 

“consistently advanced this interpretation in Commission litigation.” (Sec’y Reply Br. at 1-3.) 

The Secretary further points out that OSHA’s FOM’s use of “served by certified mail” means “sent 

by certified mail,” and so “the FOM is perfectly consistent with the formal interpretation set forth 

in the Secretary’s litigation papers.” (Sec’y Reply Br. at 4.)
16

(a) 601 Chester Pike/Manitowok [sic] crane – On or about 4/14/17, an employee 

was standing on a section of the lattice boom, exposing the employee to a fall 

hazard of approx. 9.5 feet 

(Citation at 6.) 

It is undisputed that Respondent’s employee, [redacted], worked from the top of the 

Manitowoc’s lowered boom, without any sort of fall protection, from a height of 9.5 feet during 

the disassembly process on the day of the incident. (Stipulations ¶¶ 5-7.) It is also undisputed that 

Respondent requires fall protection during the disassembly process at the Ridley Park yard 

beginning at 15 feet. (Tr. at 41, 229-230.) The cited standard requires fall protection at 4 feet. 

Respondent argues that the cited standard is inapplicable and that the fall protection standard for 

cranes in construction at 29 C.F.R. § 1926.1423(f), which requires fall protection at 15 feet for 

assembly/disassembly of cranes in construction work, applies to the cited working conditions 

instead. (Resp’t Br. at 11-22; Resp’t Reply Br. at 2-8.) The Secretary claims that the cited general 

industry standard applies to the disassembly of the Manitowoc in the Ridley Park yard on the day 

of the incident because that activity did not fall within the definition of “construction work,” as 

has been defined in Commission precedent. (Sec’y Br. at 17-20.) 

The General Industry Standards are Applicable 

The construction industry standards prescribed in Part 1926 apply to “every employment 

and place of employment of every employee engaged in construction work.” 29 C.F.R. 

§ 1910.12(a). The term “construction work” as used in section 1910.12(a) “means work for 

construction, alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1910.12(b). 

“Part 1926 applies ... to employers who are actually engaged in construction work or who 

are engaged in operations that are an integral and necessary part of construction work.” Snyder 

Well Servicing, Inc., 10 BNA OSHC 1371, 1373 (No. 77-1334, 1982). “Activities that could be 

regarded as construction work should not be so regarded when they are performed solely as part 
17

of a nonconstruction operation.” BJ-Hughes, 10 BNA OSHC 1545, 1547 (No. 76-2615, 1982); 

see also Royal Logging Co., 7 BNA OSHC 1744, 1750 (No. 15169, 1979) (concluding that even 

though a logging operation involved some roadbuilding, that roadbuilding was “ancillary to and 

in aid of [the logging company’s] primary nonconstruction function to cut and deliver logs”), aff’d

645 F.2d 822 (9th Cir. 1981). Similarly, the mere use of equipment that is often used in 

construction work does not transform nonconstruction work to “construction work.” BJ-Hughes,

10 BNA OSHC at 1547 (rejecting Secretary’s argument that Part 1926 applied because the 

equipment involved was typically used in construction). 

 “[A] finding of ‘construction work’ under section 1910.12 requires some nexus to the 

construction site.” Brock v. Cardinal Indus., Inc., 828 F.2d 373, 379-380 (6th Cir. 1987), 

abrogated on other grounds by Martin v. OSHRC, 499 U.S. 144 (1991). A nexus, in the worker 

safety context, is a “direct and tangible connection or relationship” between the work being 

performed and the worksite. Id. at 379; see generally Integra Health Mgmt., Inc., 27 BNA OSHC 

1838, 1844-1846(No. 13-1124, 2019) (Commission discussing “nexus” concept with regard to 

workplace violence under a §5(a)(1) [29 U.S.C. § 654(a)(1)], the “general duty clause,” analysis). 

Here, the Secretary argues that there is an insufficient nexus between Respondent’s disassembly 

work at the Ridley Park yard and the New Jersey construction site. (Sec’y Br. at 17-22.) 

Respondent argues that there is a “clear, direct and tangible” nexus between the disassembly 

activities and the construction site in New Jersey. (Resp’t Br. at 11-17.) 

The burden is on the Secretary to establish the applicability of the general industry 4-foot 

fall protection requirement, instead of the less restrictive 15-foot fall protection cranes in 

construction requirement, in this case. Astra Pharma. Prods., 9 BNA OSHC at 2129. As discussed 

herein, the record establishes that the Ridley Park crane disassembly work had some form of 
18

connection to both the Ridley Park yard and to a New Jersey construction site. Thus, to prove his 

case, the Secretary must establish that the disassembly work that Respondent was doing at the 

Ridley Park yard had an insufficient “direct and tangible connection or relationship” with the New 

Jersey construction site. Based on the evidence in the record, the undersigned concludes that the 

Secretary has established that the Ridley Park disassembly activities had an insufficient nexus with 

the New Jersey construction worksite, and therefore the more restrictive 4-foot fall protection 

requirement under the cited general industry standard applies in this case. 

 The Secretary argues that the disassembly activity on the day of the incident took place not 

at a construction site, but at the Ridley Park yard. (Sec’y Br. at 19.) The Secretary additionally 

points out that Respondent is not a construction company, rather, it is a crane rental company, and 

the Ridley Park yard is used for “storage, maintenance, and retail operations to support the rental, 

leasing and sale” of Respondent’s cranes. (Sec’y Br. at 19.) 

Respondent argues that it was disassembling the Manitowoc on the day of the incident so 

that it could be transported to the New Jersey construction site, for which it was earmarked and 

leased.7

 (Resp’t Br. at 13.) Once at the New Jersey construction site, Respondent’s own 

employees would reassemble the Manitowoc and operate it on the construction site. (Resp’t Br. 

at 13.) Respondent argues that without the disassembly of the Manitowoc on the day of the 

incident, “the crane could not have been transported to, nor could it otherwise have been operated 

at,” the New Jersey construction site. (Resp’t Br. at 15.) Thus, according to Respondent, the 

disassembly activities on the day of the incident were “performed directly in relation to and for the 

sole purpose of the [New Jersey] construction project, and were a necessary and immediate 

7

 The Manitowoc is too large to be transported fully assembled to New Jersey from the Ridley 

Park yard. (Resp’t Br. at 13.) 
19

precedent step to [Respondent’s] operation of the crane to erect steel at that construction site.” 

(Resp’t Reply Br. at 2.) 

 Both parties rely on Cleveland Electric Illuminating Co. v. OSHRC, 910 F.2d 1333 (6th 

Cir. 1990) as support for their arguments.8 The Secretary argues that the “activities and conditions 

present at the time of the alleged violations” are the focal point for this inquiry. (Sec’y Br. at 19-

20.) The Secretary points out that the 6th Circuit held training activities at an electric company 

substation were not considered “construction work” because “no actual construction or repair was 

being performed at the Clinton Road training site when the citation was issued.” (Sec’y Br. at 18-

20.) The Secretary states that the 6th Circuit found that even if the training “was in the nature of 

construction work, their activities lack the nexus to a particular construction site required by 

Cardinal Industries.” (Sec’y Br. at 19-20.) 

 Respondent, on the other hand, argues that, unlike the company in Cleveland Electric, 

Respondent’s Manitowoc was earmarked for a specific construction site in New Jersey. (Resp’t 

Reply Br. at 4-5.) Thus, according to Respondent, Cleveland Electric supports its argument that 

the Ridley Park disassembly activities should be considered “construction work” because its 

Manitowoc was intended solely and specifically for a construction site. (Resp’t Reply Br. at 5); 

see also Resp’t Br. at 14-15 citing A. A. Will Sand & Gravel Corp., 4 BNA OSHC 1442, 1443 

(No. 5139, 1976) (respondent’s delivery of material to a construction site constitutes “construction 

8

 Both parties also cite to multiple ALJ decisions regarding this issue including All Florida Tree 

& Landscape, Inc., 25 BNA OSHC 1310, 1349 (No. 13-0373, 2015) (ALJ); Delta Elevator Serv. 

Corp., 24 BNA OSHC 1968 (No. 12-1446, 2013) (ALJ); Murphy Enterprises, Inc., d/b/a Murphy 

Bros. Exposition, 17 BNA OSHC 1477 (No. 93-2957, 1995) (ALJ); Cornell & Co., Inc., 15 BNA 

OSHC 1726 (No. 91-990, 1992) (ALJ); Kullman Industries, Inc., 14 BNA OSHC 1282 (No. 88-

109, 1989) (ALJ). As noted above, unreviewed administrative law judge opinions do not constitute 

binding precedent within the Commission. Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 

4090, 1976). 
20

work” subject to the construction standards where the delivery employee assisted at the site and, 

thus, the delivery became “an integral part of ... the construction activities.”); United Tel. Co. of 

the Carolinas, 4 BNA OSHC 1644, 1645 (No. 4210, 1976) (work “incidental to subsequent 

construction and part of the total work to be performed” is subject to the construction standards). 

 The preponderance of the evidence supports the Secretary’s argument that there is an 

insufficient nexus between the Ridley Park disassembly activities on the day of the incident and 

the New Jersey construction worksite to render the construction standards applicable. Here, the 

activity in question occurred at Respondent’s Ridley Park yard, which serves to store, maintain 

and even use the cranes that are also eventually rented out to “industrial facilities in the southern 

part of the region.” (Tr. at 318-319.) Contrary to Respondent’s arguments, the evidence regarding 

other uses of the Manitowoc, as well as the Liebherr, and other aspects of its Ridley Park yard are 

not “irrelevant” and “of no import” to the inquiry here. (Resp’t Br. at 16; Resp’t Reply Br. at 7-

8.) The record establishes that Respondent uses the cranes at its Ridley Park yard for nonconstruction purposes, including to load and unload tractor trailers, assemble and disassemble 

other cranes, and move pieces of equipment or crane sections throughout the yard. (Tr. at 320.) 

While this Manitowoc was earmarked for a construction site, and is also designed to be used on 

construction sites (according to Safety Director Merrill), CO Wilcox testified that management 

told him that Respondent also used the Manitowoc as a “display crane” for advertising purposes 

at the Ridley Park yard. (Tr. at 76, 116, 203-205, 379.) 

Additionally, the undersigned questions Respondent’s claims that Respondent’s business 

is to provide heavy lift services “principally” and “primarily” for customers at construction job 

sites. (Resp’t Br. at 14; Resp’t Reply Br. at 3.) The undersigned notes, however, that Safety 

Director Merrill quantified its customers: while 70 to 75 percent of Respondent’s customers are in 
21

the “construction industry,” the other 25 to 30 percent of its customers are from “some other 

industry.” (Tr. at 378-379.) Consequently, up to a third of Respondent’s cranes are not used in 

the construction industry at all. While assembly and disassembly of cranes can happen at 

construction worksites, this particular activity happens regularly at this particular worksite for the 

purpose of transporting the crane to a client in whichever industry they belong as long as the client 

has a good line of credit. (Tr. at 378); BJ-Hughes, 10 BNA OSHC at 1547 (activities that could 

be regarded as construction work should not be so regarded when they are performed solely as part 

of a non-construction operation). 

The undersigned is also not persuaded by Respondent’s extensive arguments regarding the 

applicability of 29 C.F.R. § 1926.14239

 based on its own interpretation of the rule and its 

preambles.10 (Resp’t Br. at 17-22.) Respondent’s Vice President of Safety, Troy Wagner, testified 

that he relied on the language of 29 C.F.R. § 1926.1423 and the preambles to both the proposed 

and final rules to develop Respondent’s safety program and specifically, Respondent’s 15-foot fall 

protection requirement. (Resp’t. Br. at 19-22.) Respondent argues that the preamble to the final 

rule reveals that placing: 

... the § 1926.1423 fall protection rule within the construction industry standards 

was not intended to limit its applicability solely to construction, but instead was 

intended to ensure that employers would be able to easily locate, identify and then 

9

 That section states: 

For assembly/disassembly work, the employer must provide and ensure the use of 

fall protection equipment for employees who are on a walking/working surface with 

an unprotected side or edge more than 15 feet above a lower level, except when the 

employee is at or near draw-works (when the equipment is running), in the cab, or 

on the deck. 

29 C.F.R. § 1926.1423(f). 

10 The Secretary treats these arguments as the affirmative defenses of infeasibility and greater 

hazard in his brief. (Sec’y Br. at 27-30.) The undersigned treats these arguments through the lens 

of applicability, placing the burden on the Secretary, as that is how the arguments are presented in 

Respondent’s brief. (Resp’t Br. at 17-22.) 
22

follow the safest procedures to follow when assembling or disassembling crane 

booms, where those tasks are to be performed. 

(Resp’t Br. at 21-22.) 

Respondent argues that the fall protection standards of Part 1910 “not only fail to offer 

greater protection to workers disassembling crane booms, but on the contrary, is far less safe and 

makes an accident more likely to occur.” (Resp’t Br. at 18.) Respondent claims that, because a 

worker must work from the top of the lowered boom, the only fall protection possible would be a 

personal fall arrest system, which would create “a tripping and entanglement hazard that has the 

potential to make a fall more likely to occur.” (Resp’t Br. at 20.) Therefore, Respondent declares 

that: 

It is both impractical and inappropriate, and indeed is more dangerous, to require 

the use of fall protection when employees are performing assembly/disassembly 

work on a horizontal lattice boom crane when working at a height less than 15 feet 

above the next lower structural level. 

(Resp’t Br. at 20-21.) 

Despite its extensive arguments, Respondent’s basis for this idea is fundamentally flawed. 

Respondent claimed that “the Secretary has not introduced any evidence, nor has the Secretary 

even attempted to argue, that it would be safer had [Respondent’s] employees [followed the cited 

general industry fall protection standard].” (Resp’t Br. at 20.) Respondent points to CO Wilcox’s 

testimony that an employee tying off at his feet on the Manitowoc’s boom would be subject to a 

tripping and entanglement hazard, making a fall potentially more likely. (Resp’t Br. at 20; Tr. at 

197.) CO Wilcox, however, also testified that it is possible to utilize portable anchorage points 
23

“that go into the trailer hitch of a pickup truck and it has a swinging boom along the top of it.” 

(Sec’y Br. at 29-30; Tr. at 195-197.) Respondent did not address this solution at all.11 

The undersigned is also persuaded by the Secretary’s argument that Respondent quoted 

OSHA’s preamble out-of-context and in a misleading manner. (Sec’y Reply Br. at 8-9.) The 

Secretary maintains that, taken within context, the preamble to 29 C.F.R. § 1926.1423 makes clear 

that, contrary to Respondent’s assertions, OSHA did intend to limit 29 C.F.R. § 1926.1423 solely 

to construction. Within context, the portion of the preamble is as follows: 

As discussed in the preamble to the proposed rule, the Committee determined that 

safety would be enhanced by addressing the problem of fall hazards associated with 

cranes and derricks comprehensively and that putting all such requirements in 

subpart CC would make it easier for employers to readily determine the applicable 

fall protection requirements (see 73 FR 59799, Oct. 9, 2008). Accordingly, under 

the final rule, subpart M [of the construction standards, Part 1926, which concerns 

fall protection] does not apply to equipment covered by subpart CC except 

where § 1926.1423 incorporates requirements of subpart M by reference. 

Sec’y Reply Br. at 9 citing Cranes and Derricks in Construction, Final Rule, 75 Fed. Reg. 47906, 

47999 (Aug. 9, 2010) (to be codified at 29 C.F.R Part 1926); see also Ex. R-38A at 1 (Respondent’s 

exhibit of applicable portion of preamble). The Secretary also points out that the preamble does 

not refer to general industry standards in any way, nor has OSHA amended the general industry 

standards to indicate that they have been superseded by 29 C.F.R. § 1926.1423. (Sec’y Reply Br. 

at 9.) 

Respondent further argues the following: 

The process of assembling and disassembling a lattice boom is the same, regardless 

of whether the boom is assembled/disassembled in [Respondent’s] yard or, 

alternatively, on a construction site. Given the way that OSHA has interpreted and 

11 The undersigned also notes that Respondent does not incorporate its own expert’s testimony into 

this argument in its briefs at all. See Tr. at 469-533 (testimony of Anthony Lusi). The expert 

testified under the limited basis regarding assembly and disassembly of crane booms involved in 

the incident. The expert, however, did not talk to any of the employees involved in this matter nor 

did he see the Manitowoc involved in this matter. (Tr. at 485.) The expert’s testimony is therefore 

of no use here. 
24

applied the fall protection standards in this matter, there would have been no 

violation if [Respondent] employees had been disassembling the crane while the 

crane was sitting just inside the fence line of a construction jobsite. However, there 

would be a violation if [Respondent’s] employees performed the very same task in 

the very same way on a crane sitting across the street from the construction site. 

This logic leads to absurd and inconsistent results. 

(Resp’t Br. at 20-21.) This argument flows from Respondent’s fundamentally flawed predicate 

that there is no viable fall protection evidence for distances less than 15 feet, which, as noted above, 

there is such evidence. 

 The cited standard applies to Respondent’s disassembly activities at the Ridley Park yard 

on the day of the incident. There is no dispute that the facts of this case satisfy the remaining 

elements of a violation of the cited standard. Respondent’s worker [redacted] violated the cited 

standard by not having fall protection and was exposed to the fall hazard while disassembling the 

Manitowoc from a height of approximately 9 feet on the day of the incident. 

Regarding knowledge, given its 15-foot fall protection rule, Respondent’s management 

were aware that when they directed [redacted] and the disassembly crew to disassemble the 

Manitowoc on the day of the incident that the workers were disassembling the Manitowoc from a 

height greater than 4 feet to as much as 15 feet without any fall protection at all. This awareness 

is sufficient to establish knowledge of the physical conditions constituting the violation of the cited 

standard. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (“Employer 

knowledge is established by a showing of employer awareness of the physical conditions 

constituting the violation”), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished); Am. Eng’g & Dev. 

Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) (knowledge is imputed to the employer 

“through its supervisory employee.”). This citation item is therefore affirmed. 

As far as characterization, this citation item is properly characterized as serious. 29 U.S.C. 

§ 666(k) (A violation is “serious” if a substantial probability of death or serious physical harm 
25

could have resulted from the violative condition). CO Wilcox testified that the hazard of falling, 

should it occur, was likely to cause death or serious physical harm. (Tr. at 85.) [redacted]’s fall 

resulted in serious injuries like broken bones and a concussion. This citation item is affirmed as 

serious. 

Serious Citation 1, Item 2: Standing on the Lattice Boom 

The Secretary claims that Respondent violated 29 C.F.R. § 1910.180(h)(3)(v), which 

requires: “No hoisting, lowering, swinging, or traveling shall be done while anyone is on the load 

or hook.” 29 C.F.R. § 1910.180(h)(3)(v). The Secretary alleges that, on the day of the incident, 

Respondent’s “employee was standing on a section of the lattice boom while it was being hoisted 

and lowered, exposing the employee to caught-between, struck-by, and fall hazards.” (Citation at 

7.) 

Respondent argues that the record does not establish that any worker “was standing or 

otherwise was located on a section of the boom when that section was being hoisted up or lowered 

down.” (Resp’t Br. at 7.) Respondent further argues, “even should the Court conclude there is 

sufficient evidence to find [redacted] was on the 18-foot boom section when it was either lifted or 

lowered, which [Respondent] denies, the section would have been lifted no more than 1⁄4 inch and 

lowered no more than 2 or 3 inches.” (Resp’t Br. at 10.) Thus, according to Respondent, “such 

de minimus movement” should not be a basis of a violation of the cited standard. (Resp’t Br. at 

10.) 

The Secretary argues that Respondent’s policies “clearly prohibit its employees from 

‘riding the load,’ e.g., standing on pieces of equipment or crane components as they are hoisted or 

lowered by a crane.” (Sec’y Br. at 11 citing Exs. C-37 at 7, 9, 13 (“No one is permitted to ride the 

hook or load,”) and C-38 at 42 (“Under no circumstances may anyone ride the hook or load.”).) 
26

The cited standard, however, conveys a stricter sense of forbidden conduct. To the extent that the 

term “riding the load” has a distance or time element in it, the cited standard is more restrictive – 

it forbids any person’s presence for any amount of time or distance on a load while it is being 

hoisted or lowered. 29 C.F.R. § 1910.180(h)(3)(v). 

[redacted] understands the difference between “riding the load” and the complete 

prohibition of being on a load while it is hoisted or lowered. The following testimony is 

illustrative: 

Q But you did testify earlier that you've never seen a Maxim employee be 

disciplined for riding a load during assembly or disassembly? 

A What do you mean riding a load, like coming off the ground and putting it on a 

trailer or just like coming up an inch and coming down? 

Q Even just coming an inch and putting it down. 

A No. 

(Tr. at 240-241.) In this instance, [redacted] shows that he has never seen any discipline for either 

scenario, “riding a load, like coming off the ground and putting it on a trailer,” or standing on a 

load “just coming an inch and putting it down.” (Tr. at 240-241.) Yet, this testimony also 

illustrates that he sees a distinction, and Respondent in fact makes this argument – that a “de 

minimus” movement should not be a basis for a violation here. (Resp’t Br. at 10.) 

The undersigned rejects this argument as it contradicts the language of the cited standard. 

No amount of movement is allowed under the cited standard when someone is on the load. 

Additionally, it is irrelevant, with respect to establishing noncompliance, whether even a de 

minimus lifting or lowering of the boom actually caused [redacted]’s fall. (Resp’t Br. at 10); see

Am. Wrecking Corp., 19 BNA OSHC 1703, 1707 n.4 (No. 96-1330, 2001) (consolidated) 

(“Determining whether the standard was violated is not dependent on the cause of an accident.”), 
27

aff'd in relevant part, 351 F.3d 1254 (D.C. Cir. 2003). The facts that are relevant are those that 

establish whether [redacted] was on the boom when the Liebherr hoisted it.

 With this in mind, the undersigned finds that the Secretary has shown by the preponderance 

of the evidence that [redacted] was on the Liebherr’s load (the Manitowoc boom) while the boom 

was being hoisted on the day of the incident. It is undisputed that [redacted] was on the load during 

portions of the disassembly process. (Stipulations at ¶ 5); see also Tr. at 64-65, 227-228, 267, 298; 

Exs. C-20, C-61. 

Respondent argues that the evidence in the record does not pinpoint exactly that [redacted] 

was on the load as it was hoisted or lowered. Respondent argues the following: [redacted] testified 

that he could not remember being on the load is it was being hoisted or lowered; [redacted] could 

not recall anyone ever being on a load at the Ridley Park yard as it was being hoisted or lowered; 

Puzzangara testified that [redacted] was “on the other piece,” “still connected to the crane,” and 

not on the 18-foot boom section that was actually rigged to the Liebherr that was hoisting or 

lowering the boom section; Puzzangara also testified that he had never seen any Maxim employee 

standing on a load while it was being hosted or lowered; Labuski testified that the Liebherr operator 

simply removed slack from the rigging, and did not actually hoist anything when [redacted] 

signaled the Liebherr operator to hoist the section; and Labuski clarified at trial that, despite what 

was written in his statement to CO Wilcox during the OSHA investigation, he was “pretty sure 

[he] meant to write that [[redacted]] was not on top of the boom” when the instruction was given. 

(Resp’t Br. at 7-9.) Respondent further argues that a lack of disciplinary action for “riding a load” 

is not a basis on which to find the fact that [redacted] was on the load as it was being hoisted or 

lowered. (Resp’t Reply Br. at 9-10.) 
28

The facts are these: [redacted] was on the 18-foot boom section, the Liebherr’s load, before 

the pins were removed. [redacted] and the disassembly crew rigged the Liebherr to the 18-foot 

section of the Manitowoc boom in order to remove the pins. [redacted] climbed on top of the 18-

foot section and rigged it himself. (Tr. at 227.) The Liebherr had to hoist the 18-foot boom section 

a slight amount so that the workers could remove the pins by hand. (Ex. C-20.) The pins were 

removed after the Liebherr “hoists up.” (Tr. at 267-268.) [redacted] then instructs the Liebherr to 

“hoist down,” but the 10-foot boom section did not immediately release from the 18-foot boom 

section. (Tr. at 267.) The 18-foot boom section was still rigged to the Liebherr at that time. 

[redacted] was still on top of the Manitowoc boom at that time. (Tr. at 266-268.) No one testified 

or stated that they ever saw [redacted] get off the 18-foot boom section at any time. (Sec’y Reply 

Br. at 5-6.) Rather, the evidence establishes that he was in the process of walking on the 18-foot 

boom section to the heel to get down from the boom when the sections suddenly separated. See 

Tr. 298 (Puzzangara affirming his prior statement to CO Wilcox that “Bryan was on top as they 

were lowering it down. He started to come down and the section broke loose as soon as he turned 

around. And Bryan fell off.”); Exs. C-20 (“[redacted] proceeded to walk towards the cab to climb 

off the boom. While walking towards the cab, the 10’ section broke free causing the 18’ section to 

suddenly drop 6 inches. The sudden drop caused [redacted] to lose his footing and fall off the 8 

[sic] foot high boom section to the ground.”); C-61 at 2 (“Bryan signals operator to hoist down 

slow and nothing is happening. Bryan decides to get down from top of boom and as he turns around 

to start walking back towards the 14000 . . . [the boom] fell about 6” throwing Bryan off boom 

section.”).12 

12 Respondent’s critiques of the nuances of each witness’s testimony is unpersuasive. The 

undersigned finds that CO Wilcox’s testimony and the statements given to him on the day of the 

investigation are credible due to fresher memories closer in time to the incident. The undersigned 
29

The fact that when the boom sections separated, it was sudden and unexpected to 

[redacted], who was still on top of the boom, also supports the Secretary’s recitation of the 

evidence. The preponderance of the evidence therefore supports the Secretary’s argument that 

[redacted] did not come down from the 18-foot boom section before or during the Liebherr’s act 

of hoisting the 18-foot boom section so that the pins could be removed. The Secretary has 

established noncompliance with the cited standard. 

Regarding knowledge, the undersigned finds that the Secretary has established that 

Respondent had constructive knowledge of this violative condition. See Par Elec. Contractors, 

Inc., 20 BNA OSHC 1624, 1627 (No. 99-1520, 2004 (factors considered for constructive 

knowledge include adequate work rules and training programs, adequate supervision, adequate 

anticipation of hazards, and adequate prevention measures); Pa. Power & Light Co. v. OSHRC,

737 F.2d 350, 357–58 (3d Cir. 1984) (“The courts of appeals have consistently held that the 

adequacy of a company's safety program, broadly construed, is the key to determining whether an 

OSHA violation was reasonably foreseeable and preventable.”). 

The record establishes that Respondent’s management knew that Respondent’s crew was 

disassembling the Manitowoc on the day of the incident - management directed [redacted] and the 

disassembly crew to disassemble the Manitowoc and management was on-site at the Ridley Park 

yard, within viewing distance of the disassembly process. (Tr. at 91, 232-233, 245, 254-255, 309; 

Ex. C-61 at 2); see Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 

further finds that, based on observations of their demeanor on the stand at the hearing, 

Respondent’s workers appeared coached and they testified with hesitation. To the extent any 

testimony at the hearing diverges substantively from the statements given to CO Wilcox during 

his investigation, the undersigned accords greater weight to the more contemporaneous statements 

given to CO Wilcox during the investigation. 
30

1993), aff’d, 26 F.3d 573 (5th Cir. 1994) (“The knowledge element of a violation does not require 

a showing that the employer was actually aware that it was in violation of an OSHA standard; 

rather it is established if the record shows that the employer knew or should have known of the 

conditions constituting a violation”); Schuler-Haas Elec. Co., 21 BNA OSHC 1489, 1493-94 (No. 

03-0322, 2006) (finding that employer had constructive knowledge because it could have known 

of the physical conditions constituting the violation); Pride Oil Well Serv., 15 BNA OSHC 1809, 

1814 (No. 87-692, 1992) (finding constructive knowledge when a supervisor could have 

discovered and eliminated the hazard with reasonable diligence). 

Respondent’s pertinent disassembly safety rule, however, was not equivalent to the cited 

standard. Gary Concrete Prods., Inc., 15 BNA OSHC 1051, 1054-55 (No. 86-1087, 1991) (finding 

inadequate work rules and a lack of specific training or instructions on stacking techniques 

supported a finding of constructive knowledge). Although Respondent has a rule forbidding 

“riding the load,” the record establishes that this rule is insufficient. As noted above, [redacted]’s 

testimony suggests that Respondent’s rule is not as strict as what the OSHA regulation requires – 

that there is a difference between “riding the load” and being on the load “just like coming up an 

inch and coming down.” (Tr. at 240-241.) The cited standard prohibits any presence on the load 

even “just like coming up an inch and coming down.” The record also contains evidence, including 

testimony from [redacted], stating that they have never been disciplined or seen any discipline 

even for the less stringent rule for “riding” a load, suggesting that Respondent did not take adequate 

steps to discover safety violations, or that it had effectively enforced its work rules when violations 

were discovered. (Tr. at 110-111, 237, 302, 308-309); see Gary Concrete Prods., Inc., 15 BNA 

OSHC at 1056 (ineffective enforcement of safety rules when management was aware of safetydeficient nature of job performance but directed performance of a job anyway). 
31

The awareness by management of the disassembly process on the day of the incident, and 

the insufficient work rule combined with lack of disciplinary enforcement of a less strict rule 

prohibiting riding a load, convinces the undersigned that Respondent had constructive knowledge 

of the violative condition on the day of the incident. See S.J. Louis Constr., 25 BNA OSHC 1892, 

1900 n.24 (No. 12-1045, 2016) (evaluating employer’s safety program for adequacy involves same 

factors for evaluating constructive knowledge and the defense of unpreventable employee 

misconduct (UEM)); see also Daniel Int’l Corp., 9 BNA OSHC 2027, 2031 (No. 76-181, 1981) 

(rejecting UEM defense based on employees’ failure to tie-off where construction fall protection 

standard required openings to be protected by guardrails or covers, stating that the employer’s tieoff rule “is not equivalent to the cited standard”); Boh Bros. Constr. Co., LLC, 24 BNA OSHC 

1067, 1075 (No. 09-1072, 2013) (employer’s monitoring and enforcement of work rule that did 

not meet cited provision’s requirements could not be used to establish UEM defense). 

The Secretary has also established that Respondent’s employee, [redacted], was exposed 

to the violative condition when the Liebherr hoisted and lowered the Manitowoc boom while he 

was on it. As found above, the general industry standards are applicable under the facts of this 

case, where a Liebherr was hoisting and lowering a load at the Ridley Park yard. This citation 

item is affirmed. 

This citation item is also properly characterized as serious. 29 U.S.C. § 666(k) (A violation 

is “serious” if a substantial probability of death or serious physical harm could have resulted from 

the violative condition). CO Wilcox testified that the hazard of falling, should it occur, was likely 

to cause death or serious physical harm. (Tr. at 108-109.) [redacted]’s fall resulted in broken 

bones and a concussion. This citation item is affirmed as serious. 
32

PENALTY 

Section 17(j) of the Act requires the Commission to give due consideration to four criteria 

in assessing penalties: the size of the employer’s business, the gravity of the violation, the 

employer’s good faith, and its prior history of violations. Compass Envtl., Inc., 23 BNA OSHC 

1132, 1137 (No. 06-1036, 2010) aff’d, 663 F.3d 1164 (10th Cir. 2011). The gravity of the violation 

is generally accorded greater weight. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 

87-2059, 1993). 

CO Wilcox testified to how the penalty for each citation item was calculated and proposed 

for this matter. (Tr. at 87-89, 108-110.) CO Wilcox also testified that OSHA considered this 

violations here to have a high gravity based on the high severity of the injury (like death, head 

trauma, brain injuries, broken bones and paralysis) as a result of a fall at nine feet combined with 

a greater probability of its occurrence on this worksite given that Respondent’s workers were 

standing on a 4 inch wide walking surface exposed to a fall of 9 feet the entire time they were on 

the walking surface. (Tr. at 84-87.) 

As for history, CO Wilcox testified that Respondent had two previous inspections with the 

past five years that resulted in serious violation citations that became a final order before the 

inspection in this case. (Tr. at 88, 109.) As a result, the penalty calculation was increased by 10%, 

however, the high gravity of the violation already established the maximum statutory penalty for 

each citation item, and so the penalty was not adjusted for history. (Tr. at 89, 109.) The other 

factors, size and good faith, were considered, but were found to not apply to Respondent. (Tr. at 

87-88, 109.) 

Both of the serious violations were high gravity based on the potential for death or serious 

physical harm, and because there was an injury, in this case, broken bones and a concussion. (Tr. 
33

at 89, 109, 233.) Therefore, serious Citation 1, Item 1 was proposed at a $12,675 penalty, and 

serious Citation 1, Item 2 was proposed at a $12,675 penalty. Respondent has not addressed the 

calculation of the amount of the proposed penalties in its briefs. After consideration of the 

statutory factors with regard to the penalties for the affirmed violations, the undersigned agrees 

with the penalty amounts proposed by the Secretary for each citation item. The proposed penalty 

amounts are assessed for each affirmed citation item. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

All findings of fact and conclusions of law relevant and necessary to a determination of the 

contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact 

and conclusions of law inconsistent with this decision are denied. 

ORDER 

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that: 

1) Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1910.28(b)(1)(i), is 

AFFIRMED, and a penalty of $12,675 is ASSESSED, 

2) Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. § 1910.180(h)(3)(v), is 

AFFIRMED, and a penalty of $12,675 is ASSESSED, 

SO ORDERED. 

 /s/_________________ 

 COVETTE ROONEY 

 Chief Judge, OSHRC 

DATE: January 14, 2020 

 Washington, D.C.