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. 14-1638

THOMAS G. GALLAGHER, INC., 

Respondent.

Appearances: Theresa Schneider Fromm, Esq. 

U.S. Department of Labor, Office of the Solicitor, Boston, Massachusetts 

 For the Complainant 

 

 James F. Laboe, Esq. 

 Orr & Reno, P.A., Concord, New Hampshire 

 For the Respondent 

Before: William S. Coleman 

 Administrative Law Judge 

DECISION AND ORDER 

On August 1, 2014, a journeyman pipefitter employed by Thomas G. Gallagher, Inc. 

(Gallagher) at Gallagher’s fabrication shop in Andover, Massachusetts, sustained a serious injury 

to his right hand. The injury occurred while the pipefitter was using an overhead bridge crane to

hoist a pipe assembly that weighed about 5,000 pounds. The pipefitter put his hand on the pipe 

assembly during the hoist. When a weld within the pipe assembly suddenly broke, material 

within the pipe assembly abruptly shifted, smashing against his hand. 
2

The injured pipefitter had earlier rigged the pipe assembly for the hoist by using two 

synthetic web slings. The parties have stipulated that the pipefitter rigged the pipe assembly 

incorrectly. (Stip. ¶ 5). The rigging was flawed in two respects: (1) it resulted in a “center pick,” 

which made the pipe assembly susceptible to teetering while suspended, and (2) one of the two 

slings was connected to the pipe assembly with a choker hitch around multiple pipes, which 

exerted excessive force upon the weld that broke during the hoist. 

A compliance safety and health officer (CO) from the Andover area office of the 

Occupational Safety and Health Administration (OSHA) conducted an inspection on the same 

day of the accident, after which OSHA issued a two-item serious citation to Gallagher. (T. 69-

70). 

Item 1 of the citation alleges a violation of the general industry standard applicable to 

overhead and gantry cranes, specifically 29 C.F.R. § 1910.179(n)(3)(i), which provides that a 

crane’s “load shall be well secured and properly balanced in the sling or lifting device before it is 

lifted more than a few inches.” Item 1 alleges that Gallagher violated this standard on August 1, 

2014 in that “a pipe assembly hoisted by a ... bridge crane was not well secured, nor properly 

balanced....” The citation proposed a penalty of $7000 for item 1.

The Secretary amended citation item 2 before the hearing. As amended, item 2 alleges a 

violation of the general industry standard applicable to slings, specifically 29 C.F.R. § 

1910.184(c)(9), which provides that “[w]henever any sling is used, ... [a]ll employees shall be 

kept clear of loads about to be lifted and of suspended loads.” Amended item 2 alleges 

Gallagher violated this standard in the following manner: “On or about 8/1/2014, an assembly of 

pipes was hoisted with a ... bridge crane with employees’ hands on it.” The Citation proposed a 
3

penalty of $4250 for amended item two.

1

Gallagher timely contested the citation and proposed penalties, and the Executive 

Secretary of the Occupational Safety and Health Review Commission (Commission) docketed 

the matter on November 3, 2014. The Commission’s Chief Judge thereafter assigned the matter 

to the undersigned for hearing and decision. An evidentiary hearing was conducted in Boston, 

Massachusetts, on April 24, 2015, at which three persons testified – the CO, the injured 

pipefitter, and the injured pipefitter’s foreman. The parties thereafter filed post-hearing principal 

briefs and reply briefs, with briefing completed on June 22, 2015. 

The principal contested issues are (1) whether the Secretary proved by a preponderance 

of the evidence that Gallagher had constructive knowledge of each of the two alleged violative 

conditions, and (2) whether Gallagher proved by a preponderance of the evidence the affirmative 

defense of unpreventable employee misconduct. 

As described below, the Secretary met his burden to prove constructive knowledge as to 

both alleged violations, and Gallagher failed to meet its burden to prove unpreventable employee 

misconduct. The two citation items are affirmed as serious violations, and a total penalty of 

$3500 is assessed. 

FINDINGS OF FACT

The following facts were established by at least a preponderance of the evidence:2

1. Thomas G. Gallagher, Inc. (Gallagher) operates a fabrication shop in Andover, 

Massachusetts, where it makes prefabricated piping systems for installation in major construction 

 

1

 As originally issued, item 2 had alleged that Gallagher violated § 1910.179(n)(3)(v), 

which is part of the general industry standard for overhead and gantry cranes, and which 

provides: “While any employee is on the load or hook, there shall be no hoisting, lowering, or 

traveling.” The Secretary’s pre-hearing amendment to item 2 changed only the cited standard --

the description of the alleged violation and the proposed penalty were unchanged. 

2

 If any finding of fact is in actuality a conclusion of law, it shall be deemed to be so.
4

projects. (T. 18, 117). Gallagher has about 258 employees and is engaged in a business that 

affects interstate commerce. (Stip. ¶ 1; Ex. R-4; Ex. R-1, p. 4; T. 66).

The Pipe Assembly 

2. In late July 2014, employees in the fabrication shop completed the fabrication of a 

pipe assembly that was to be installed at a construction site known as the “Novartis project.” (T.

17-18, 137; Stip. ¶¶ 3 & 4). The pipe assembly consisted of six 32-foot long metal pipes. The 

photograph at Exhibit J-2 accurately depicts the completed pipe assembly’s configuration (T. 

117-18), and is described as follows: 

a. The pipe assembly was about 32-feet long and 4-feet wide. It weighed between 

4,800 and 5,000 pounds. (Ex. R-1; T. 40). Five pipes were four inches in diameter, and one pipe 

was eight inches in diameter. (Ex. R-1, p.1). The pipes were arrayed parallel and side-by-side 

on the same plane, with the 8-inch pipe positioned as one of the outermost pipes. (T. 40). On 

one side of the pipe assembly, the uppermost surface of the 8-inch pipe was four inches higher 

than the uppermost surfaces of the 4-inch pipes. On the opposite side, the uppermost surfaces of 

all pipes were even. 

b. The adjacent pipes of the pipe assembly were about six inches apart. On one end of 

the pipe assembly, metal plates were welded to adjacent pipes to maintain this 6-inch spacing. 

There were five such metal plates, and they were a permanent part of the pipe assembly. (T. 45, 

118, 149). 

c. On the other end of the pipe assembly (which was the end where the pipefitter was 

injured), the 6-inch spacing between adjacent pipes was maintained by an approximately fourfoot long channel iron that had been welded onto the pipe assembly. The channel iron crossed 

over the upper surface of all five 4-inch pipes, and one of its ends abutted the side of the 8-inch 

pipe. The channel iron was attached to the pipe assembly by six separate welds at the points 
5

where the channel iron contacted each pipe. The channel iron was situated about eight feet from 

the near end of the pipe assembly. (T. 149-151; Exs. J-2 & J-7). 

d. The channel iron was not a permanent part of the pipe assembly. Rather, its purpose 

was to keep the pipes in place during transport to the construction site, and it was to be removed 

from the pipe assembly before installation. (T. 118, 149). 

3. On the morning of August 1, 2014, the pipe assembly was located in the part of 

Gallagher’s fabrication shop that housed a permanently installed overhead bridge crane. The 

bridge crane had been installed one month earlier. (Ex. R-1, p. 1; T. 126). The bridge crane was 

outfitted with a wire-rope hoist that was operated by a control unit that hung like a pendant from 

the crane’s bridge to about three feet above floor level. (T. 118; Ex. J-2; Ex. R-1, p. 1; Ex. C-3). 

4. The pipe assembly was situated underneath the bridge crane, and lay flat upon two 

sawhorse-type supports, both about three feet high. The sawhorse supports were wider than the 

pipe assembly, so the undersides of all six pipes rested directly on the supports. (Ex. J-2). 

5. The pipe assembly was scheduled to be transported to the Novartis project 

construction site on the day of the accident, August 1, 2014. Because of its large size, Gallagher 

had arranged for a third-party carrier to transport it on a flatbed trailer. (T. 120, 132).

The Accident 

6. The worker who was injured was a journeyman pipefitter with the initials J.T. (T. 

16-17, 134-35). 

7. J.T.’s immediate supervisor was the fabrication shop foreman for the pipefitters 

(Foreman). (T. 17, 114). 

8. The accident occurred at about 10:30 a.m. on Friday, August 1, 2014. (Stip. ¶ 5). 

That entire workweek (the week of July 28 to August 1), the Foreman had assigned J.T. to work 
6

on various aspects of the Novartis project. The Foreman described the Novartis project as “the 

big hot job at the time.” (T. 136-37; Stip. ¶¶ 3 & 4). 

9. On the day of the accident, J.T. began the day working with some welders on other 

pipe fabrications that were also destined for the Novartis project. (Foreman testimony, T. 131 & 

137). At some point later in the morning, J.T. turned his attention to the pipe assembly involved 

in the accident. J.T. undertook to move the pipe assembly off the two sawhorse supports and 

onto two four-wheeled dollies (upon which the pipe assembly later would be rolled onto the 

flatbed trailer). 

10. The Foreman did not instruct J.T. or anyone else to move (or to refrain from 

moving) the pipe assembly from the sawhorse supports onto the dollies (T. 140-41), but J.T. 

thought that this “was the next step that needed to be done” and was “what any pipefitter would 

do.” (J.T. testimony, T. 18 & 26). J.T. believed that the Foreman would have expected him to 

put the pipe assembly on the dollies without being told to do so. (J.T. testimony, T. 26-27). 

11. J.T.’s plan of action was to use the crane’s hoist to lift the pipe assembly off the 

sawhorse supports, move the supports out from underneath the pipe assembly, and then lower the 

pipe assembly onto the two dollies that were pre-positioned below it. (T. 18, 118). 

12. In preparation for hoisting the pipe assembly with the bridge crane, J.T. rigged it 

using two synthetic web slings. (J.T. testimony, T. 28). It took J.T. “only ... a matter of 

minutes” to rig the pipe assembly to the crane. (J.T. testimony, T. 28). The photographs at 

Exhibits J-3, J-4, and J-5 accurately depict the manner in which J.T. rigged the pipe assembly. 

(T. 20, 40, 42-43). 
7

13. J.T. used a choker hitch to connect one of the slings to the eight-inch pipe near the 

pipe’s midpoint. J.T. used another choker hitch to lash the other sling around the five smaller 

pipes, also near their midpoints.3

14. The manner in which J.T. rigged the pipe assembly was improper in at least two 

respects. (Stip. ¶ 5). 

a. First, rigging the pipe assembly near its midpoint with only two points of connection 

resulted in the load being prone to teetering longitudinally when hoisted. (T. 28, 45, 60). J.T. 

recognized that using such a “center pick” might require some direct intervention to keep it from 

teetering and to stabilize it during the hoist. (J.T. testimony, T. 22 & 28; Ex. R-7, p. 3). 

b. Second, when the pipe assembly was suspended, the sling that was choked around 

the five smaller pipes exerted lateral force against the two outermost of those five pipes,

pressuring the welds that connected the channel iron to those pipes. This pressure resulted in one 

of those welds breaking during the lift. (T. 28, 44, 60, 131-32). 

15. The correct technique when using a choker hitch to rig a pipe assembly is to “always 

choke ... on a single pipe.” (Foreman testimony, T. 133; see also CO testimony, T. 63; Stip. ¶ 

5). 

16. J.T. could have rigged the pipe assembly in a manner that would have avoided or 

mitigated the problems created by the manner in which he actually rigged it. One such manner 

would have been to use four synthetic web slings, with one sling connected by a choker hitch to 

each of the four corners of the pipe assembly. This four-sling rigging would have resulted in (1) 

 

3

 The term “choker hitch” is defined in 29 C.F.R. § 1910.184(b) as follows: “Choker 

hitch is a sling configuration with one end of the sling passing under the load and through an end 

attachment, handle or eye on the other end of the sling.” The hitch that J.T. used to connect both 

slings to the pipe assembly met this definition of “choker hitch.” 
8

the pipe assembly not being prone to teetering while suspended, and (2) less pressure being 

exerted on the channel iron welds. (Foreman testimony, T. 127-28, 130-31; Ex. R-12). 

17. The only person to witness the accident and injury (other than J.T.) was a Gallagher 

employee named Joseph Myles. Myles happened to be in the vicinity when J.T. was ready to 

move the pipe assembly onto the dollies, so J.T. asked Myles to assist.4 (Ex. R-4, p. 1; T. 22, 29, 

86-87; see also T. 110-11, statement of counsel for Gallagher). J.T. positioned himself at the end 

of the pipe assembly nearest the channel iron, and Myles was positioned at the opposite end, near 

the pendant control for the hoist. (Exs. J-2 & C-3; T. 22, 29, 39, 86-87). The pipe assembly was 

about waist height on the two men as it rested on the sawhorse supports. (T. 28). 

18. Myles operated the hoist to lift the pipe assembly high enough above the two 

sawhorse supports to allow the two men to move the sawhorse supports out from under the pipe 

assembly. Once the sawhorse supports were out of the way, Myles began to lower the pipe 

assembly onto the two four-wheeled dollies that were pre-positioned underneath it. (T. 28). The 

pipe assembly began to teeter slightly, so J.T. put his right “hand on the pipe just to lift the end 

up to take just a little bit of weight off it.” (J.T. testimony at T. 28). While J.T.’s hand was on 

the pipe assembly, the weld connecting the channel iron to the outermost 4-inch pipe broke, 

which resulted in that pipe slamming into the adjacent pipe and smashing J.T.’s fingers. (Stip. ¶ 

5; T. 17, 44, 52, 149; Ex. J-8). With J.T.’s hand still caught between the pipes, Myles finished 

lowering the pipe assembly onto the dollies and then came to J.T.’s aid to help him free his hand. 

(T. 29; Ex. C-2). 

 

4

 There is no evidence of Myles’ job title, trade, training, or experience. Although both 

parties identified Myles as a possible witness to provide testimony in their respective cases-inchief (Joint Pretrial Statement, p. 3), neither chose to call him. 
9

19. An ambulance arrived and transported J.T. to the hospital. (T. 31). J.T. lost his 

index and middle fingers above the knuckle, and he has a permanent titanium plate in his ring 

finger. (T. 17). 

20. The Foreman was in his office when the accident occurred, and from that location 

the area where the accident occurred was not visible. Neither the Foreman nor any other 

Gallagher supervisor observed J.T. rigging the pipe assembly or using the crane to move it off 

the sawhorse supports and onto the dollies. (T. 121, 133). No Gallagher supervisor had actual 

knowledge at the time of the accident that J.T. had rigged the pipe assembly by himself or that he 

had placed his hand directly on the suspended pipe assembly. 

J.T.’s Training and Experience 

21. J.T. has been a member of Pipefitters Local 537 labor union in Boston for about 

twelve years. He estimated that over his career he had worked for some “20 different 

companies.” At the time of the accident, he had been working at Gallagher for about six months. 

(T. 23, 30-31, 126, 153). 

22. The pipefitting trade is generally regarded to be a construction trade. (T. 104). J.T. 

underwent five years of formal training from Pipefitters Local 537, and during that training 

period his status was “apprentice.” (T. 134). Upon completing that training, he achieved 

“journeyman” status. (T. 22-24, 134-35). J.T.’s formal training from the labor union included 

training in rigging that lasted about “half a semester.” (T. 22-23, 114, 126). There is no 

evidence regarding the precise content of the rigging training that J.T. received at the union. 

23. J.T. testified that “[e]very job I’ve been on I’ve done rigging,” including “a lot of big 

stuff,” such as riggings of pipes with diameters of up to 30 inches. (T. 31). 

24. J.T. had not received training on rigging from any of his approximately 20 previous 

employers. Rather, J.T. indicated that employers of pipefitters in the Boston area rely on the 
10

rigging “training that we get at the Union Hall.” (T. 23). The Foreman’s testimony also 

suggested that Gallagher relied on the rigging training that its pipefitters received at the labor 

union. (T. 153).5

25. Gallagher did not communicate any general or specific work rules or guidance to 

employees with respect to how to rig any given material. J.T.’s understanding was that 

Gallagher expected its pipefitters simply to “rig it correctly.” (J.T. testimony, T. 23). 

26. J.T. testified that he had rigged the pipe assembly that was involved in the accident 

three separate times altogether (with the accident having been the third time). (T. 19). J.T. 

rigged the pipe assembly the same way all three times. (T. 20, 26; Ex. J-3). 

27. The first time J.T. rigged the pipe assembly, he did so by himself. This first time 

was for a lift “with a fork truck and a boom lift extension” at some outdoor location at 

Gallagher’s facility in Andover. (J.T. testimony, T. 19, 25). 

28. The second time J.T. rigged the pipe assembly was two days before the accident. He 

again rigged it by himself, and he did so without receiving any instructions or direction from the 

Foreman or anyone else. (T. 26). The purpose of rigging it the second time was to hoist the pipe 

assembly using the same overhead crane that was used when the accident occurred. (T. 19, 21, 

25). J.T. believed that other workers may have been working with him this second time, but he 

was not sure of their identities. (T. 25). 

29. J.T. erroneously believed that he rigged the pipe assembly properly each of the three 

times he rigged it.6 (J.T. testimony, T. 22). 

 

5

The Foreman testified: 

Q: Is there anything in [J.T.’s] training that would prohibit him from 

rigging the pipe assembly in that fashion? 

A: I would imagine what he learned in the school.
11

30. No one at Gallagher had ever questioned the manner in which J.T. had rigged the 

pipe assembly or any other material. No one at Gallagher had ever instructed J.T. to refrain from 

rigging any material. (J.T. testimony, T. 22, 24). 

31. In his six months of employment at Gallagher before the accident, J.T. regularly 

encountered situations that entailed rigging, including working “on some other big pipe 

assemblies.” (Foreman testimony, T. 126, 156). The Foreman regarded J.T.’s involvement in 

those riggings to be in the nature of on-the-job training. (T. 156). 

32. Over the course of J.T’s six months employment at Gallagher before the accident, 

the Foreman had observed his work practices and habits on a daily basis and had not observed 

J.T. engage in any unsafe acts or practices. (Foreman testimony, T. 131, 141, 153). In the 

Foreman’s estimation, J.T. “always did the right thing.” (Foreman testimony, T. 132). 

33. The Foreman did not train or instruct J.T. to rig pipe assemblies in the manner that 

J.T. had incorrectly rigged the pipe assembly on the day of the accident. (Foreman testimony, T. 

127). The Foreman testified that he had no reason to believe that J.T. would not have known 

how to rig the pipe assembly properly. (T. 154). 

34. The Foreman belonged to the same labor union as J.T. (Pipefitters Local 537), and 

he was familiar with the training that the union provided. (T. 114). 

35. The Foreman believed that the union had trained J.T. on the correct way to do “any 

kind of rigging,” including distinguishing between correct and incorrect methods of rigging a 

pipe assembly like the one involved in the accident. (Foreman testimony, T. 141, 153). 

 

6

 J.T. believed he was injured because a “weld failed,” not because he had rigged the pipe 

assembly incorrectly. (T. 22). The parties stipulated that the manner in which J.T. rigged the 

pipe assembly was incorrect (Stip. ¶ 5), and the evidence corroborates that stipulation. 
12

36. The only formalized training on rigging that Gallagher provided J.T. was a tenminute “toolbox talk” that the Foreman gave in April 2014 to a group of five workers that 

included J.T. (T. 23, 31, 123-26, 145, 155; Exs. R-10 and R-11). The training consisted of the 

Foreman reading verbatim a one-page written outline titled “Rigging.” After he read the outline, 

the Foreman invited questions, but there were none. (T. 145). The written outline was admitted 

in evidence as Exhibit R-11. (T. 145). 

37. By its expressed terms, the toolbox talk was geared to “workers in the construction 

industry . . . working with or near rigging operations.” (T. 126, Ex. R-11). 

38. The toolbox talk did not address methods of rigging pipe assemblies similar to the 

one involved in the accident. (Ex. R-11; T. 146). 

39. One part of the written toolbox talk headlined “Lifting Practice Checklist” had ten 

bullet points. One of those bullet points was as follows: “Balance the load to avoid overstress on 

one sling leg or the load slipping free.” There is no evidence that the manner in which J.T. 

rigged the pipe assembly overstressed a sling leg or created a risk of the load slipping free. 

40. The only part of the toolbox talk that addressed the placing of hands on a load was 

the following bullet point: “Keep hands and fingers from between the load and the chain.” (Ex. 

R-11). There is no evidence of any “chain” being involved in the rigging of the pipe assembly, 

and thus there is no evidence that J.T. failed to keep “hands and fingers from between the load 

and the chain” in rigging and hoisting the pipe assembly that injured him. (T. 145-146). 

41. The final paragraph of the toolbox talk addressed the matter of using a “qualified 

rigger.” It provided: 

Be sure to contact a “Qualified Rigger” for complete details on all 

rigging requirements. Employers must use qualified riggers during 

hoisting activities for assembly and disassembly work. 

Additionally, qualified riggers are required whenever workers are 
13

within the fall zone and hooking, unhooking or guiding a load as 

well as doing the initial connection of a load to a component or 

structure. 

(Ex. R-11) (emphasis supplied). When J.T. placed his hand directly on the suspended pipe 

assembly, he was “within the fall zone”7 and was “guiding a load” in a manner contemplated by 

the toolbox talk’s use of those phrases. 

42. Inasmuch as the toolbox talk was by its terms “geared to workers in the construction 

industry,” the use of the term “Qualified Rigger” in the toolbox talk was intended to denote the 

defined term “qualified rigger” that is set forth in 29 C.F.R. § 1926.1401.8

 

43. There is insufficient evidence to make a finding whether Gallagher regarded J.T. to 

be a “qualified rigger” as that term was employed in the toolbox talk. 

 

7

 The term “fall zone” as used in the toolbox talk was intended to denote the definition in 

the construction industry standard for cranes and derricks that is codified at 29 C.F.R. part 1926, 

subpart CC. The term is defined in § 1926.1401 as follows: “Fall zone means the area 

(including but not limited to the area directly beneath the load) in which it is reasonably 

foreseeable that partially or completely suspended materials could fall in the event of an 

accident.” 

8 The term “qualified rigger” does not appear in either of the cited general industry 

standards. The term is defined in the construction industry standards at § 1926.1401 as follows: 

“Qualified rigger is a rigger who meets the criteria for a qualified person.” The term “qualified 

person” is in turn defined in § 1926.1401 as follows: “Qualified person means a person who, by 

possession of a recognized degree, certificate, or professional standing, or who by extensive 

knowledge, training and experience, successfully demonstrated the ability to solve/resolve 

problems relating to the subject matter, the work, or the project.” 

The parties have agreed that the cited general industry standards are applicable, not the 

construction industry standards. (Joint Pretrial Statement, 4/9/2015). The construction industry 

standards are not applicable to the operation of the bridge crane because Gallagher’s fabrication 

shop was not a place of employment engaged in construction work. See 29 C.F.R. § 1910.12(a) 

(providing that the standards in 29 C.F.R. part 1926 [of which subpart CC is a subpart] are 

applicable to “every employment and place of employment of every employee engaged in 

construction work”). 
14

44. In the conduct of his investigation, the CO had concluded that the employees in the 

fabrication shop had received sufficient training in rigging and that J.T. had received proper 

training on how to rig the pipe assembly that injured him. (T. 80-81). 

The Foreman and Supervision 

45. At the time of the accident, the Foreman had held the position of fabrication shop 

foreman for pipefitters for about two years. (T. 114). Before that, the Foreman had worked for 

Gallagher as a construction foreman at construction sites in the field. (T. 114, 122). 

46. There is no evidence of how many workers the Foreman was responsible for 

supervising. 

47. During the vast majority of a typical workday, the Foreman is on the shop floor 

supervising work, though there are times when he is in his office attending to paperwork. (T. 28, 

83, 117, 121-22). The Foreman testified that his usual practice throughout the workday is to 

“walk the shop, make sure everything was being done right” and “in a safe manner,” although he 

noted that the workers he supervises are generally compliant with applicable safety standards. 

(T. 30, 116, 134, 154). 

48. The Foreman testified that at the start of each workday, the workers he supervises 

typically “start on what they were working on the day before,” and that when they finished he 

“would give them another assignment ... or whatever I needed them to work on.” (T. 120). 

49. The Foreman testified that it was not typical for workers to change tasks without his 

knowledge, but he acknowledged that sometimes they do, such as when they finish a task and 

start something new. (T. 120, 137-38). 

50. The Foreman testified that before the accident, he had never known J.T. to undertake 

a task that he had not been assigned (T. 139), or to switch tasks without the Foreman knowing. 
15

(T. 153). All of J.T.’s assigned tasks in the several days preceding the accident had involved the 

Novartis project. (T. 136-37; Stip. ¶¶ 3 & 4). 

51. The Foreman has more than 30 years’ experience in rigging. (T. 83). In the 

Foreman’s estimation, the journeymen pipefitters like J.T. who had been trained at Pipefitters 

Local 537 labor union “know what they are doing when it comes to rigging.” (T. 114-15, 134-

35). 

52. In November 2010, when the Foreman was working as a construction foreman for 

Gallagher, the Foreman and most of the other foremen at Gallagher received formal “qualified 

rigger” training that was provided by an outside trainer. Gallagher did not provide this training 

to any non-supervisory employees. (T. 115, 146). 

53. During the Foreman’s two-year tenure as the fabrication shop foreman, the only 

other pipe assemblies that were similar to the one involved in the accident had also been 

fabricated for the Novartis project. (T. 115-16). The first such pipe assembly was fabricated 

around January 2014, which was before J.T. started work at Gallagher. (T. 115-16). The pipe 

assembly that was involved in the accident was the fourth or fifth of the pipe assemblies 

fabricated for the Novartis project. (T. 19, 115-16). 

54. The Foreman knew on day of the accident that the pipe assembly was to be 

transported to the construction site on that day. (T. 139). The record is silent as to whether at 

the time of the accident the tractor-trailer that would transport the pipe assembly had arrived at 

the fabrication shop for the pick up. 

55. The Foreman testified that what should have happened on the day of the accident 

was that after the arrival of the tractor-trailer that would transport the pipe assembly, he would 

“get two or three guys together, make a team, and we would rig it to the floor, get it on dollies, 
16

and push it to the truck.” (T. 121, 132). This is what the Foreman had done when loading 

previously fabricated pipe assemblies for the Novartis project, and he recalled that J.T. had been 

involved in some of those previous efforts. (T. 133). The rigging configuration used in those 

previous instances was not the two-sling configuration that J.T. used on August 31, 2014. (T. 

127). 

56. The Foreman testified that it was not typical for workers to rig and load pipe 

assemblies without his direction and without his knowledge, and that he would not have assigned 

that task to J.T. to do alone. (T. 122-23). 

57. The Foreman testified that he was always directly involved in rigging and loading 

large items like the pipe assembly “[b]ecause ... they're big and heavy, and ... it's ... a 

dangerous job to do and that's why I pick the right guys and we do it.” (T. 122-123). 

58. The Foreman explained further: “We don't usually do big stuff like this. When we 

do smaller stuff, the guys can handle it themselves, no problem. But when they do anything big, 

I'm always involved with it.” (T. 123). 

59. Before the accident on August 1, 2014, the Foreman did not know that twice earlier 

J.T. had rigged the pipe assembly that injured him, and that both of these times J.T. had rigged 

the pipe assembly alone. (T. 133). The Foreman mistakenly believed that in the six months 

before the accident, no pipe assemblies like the one involved in the accident had been rigged 

without his knowledge. (Foreman testimony, T. 121). 

60. Prior to the accident, the Foreman had not formed a team to rig and move the pipe 

assembly, and there is no evidence that the Foreman had communicated to any workers that he 

intended to form such a team that day. 
17

61. Prior to the accident, the Foreman had not instructed J.T. or any other employee to 

rig or move the pipe assembly (or to refrain from doing so). (T. 18, 26, 140). 

62. If the Foreman had seen the way J.T. rigged the pipe assembly on the day of the 

accident, he would have stopped work and would have acted so that the pipe assembly was 

rigged correctly. (T. 123, 130, 133).

63. There is no evidence of whether or when the Foreman communicated to J.T. or to 

any other workers that the Novartis pipe assemblies or any similarly large items should be rigged 

only at his express direction and only under his direct supervision. If the Foreman 

communicated this policy to J.T. and the other workers, he did not do so in any written form. 

64. Gallagher did not take reasonably diligent measures in communicating instructions 

to the pipefitters in the fabrication shop that large items like the Novartis project pipe assemblies 

were to be rigged only under the direct supervision of the Foreman. Gallagher, in the exercise of 

reasonable diligence, should have known that J.T. would not comply with this practice and that a 

violative condition could result. 

Gallagher Safety Program 

65. Gallagher had a 103-page corporate safety manual that was organized into 28 

separate policy areas. The CO characterized the safety manual as “fairly comprehensive and 

progressive with regards to employee safety and health,” but also regarded its provisions to be 

more applicable “to workers in the field, as opposed to [workers] in the fabrication shop.” (T. 

56). 

66. One of the 28 policy areas in the safety manual was a one-page policy titled “Cranes 

and Derricks.” (Ex. J-1, p. 74). The lead paragraph of the “Cranes and Derricks” policy stated

that all crane and derrick work in the company would comply with the OSHA construction 
18

industry standard for cranes and derricks that is codified at 29 C.F.R. part 1926, subpart CC.9 

(Ex. J-1, p. 74). The overhead crane in Gallagher’s fabrication shop was not engaged in 

construction work on August 1, 2014. (See supra footnote 8). No part of the safety manual 

expressly refers to 29 C.F.R. § 1910.179, which is the general industry standard for overhead 

cranes that the parties agree is the applicable standard for item 1 of the citation. (Joint Pretrial 

Statement, 4/9/2015, p. 5). 

67. The lead paragraph of the one-page Cranes and Derricks policy also stated that all 

workers performing rigging operations for the company “will be certified as Qualified Riggers.” 

(Ex. J-1, p. 74).10

 

68. Inasmuch as the Cranes and Derricks policy expressly refers to the construction 

industry standard for cranes and derricks (subpart CC of part 1926), the use of the term 

“Qualified Rigger” in the policy was intended to denote the defined term “qualified rigger” that 

is set forth in 29 C.F.R. § 1926.1401. (See supra footnote 8).

69. There is insufficient evidence to make a finding whether Gallagher regarded J.T. to 

have been “certified” as a “qualified rigger,” as those terms were employed in its Cranes and 

Derricks policy, for purposes of rigging the large and heavy Novartis project pipe assemblies. 

70. Another of the 28 policy areas in the safety manual was a three-page policy titled 

“Rigging.” (Ex. J-1, pp. 75-77). The “Rigging” policy does not include any specific or general 

 

9

The lead paragraph of the Cranes and Derricks policy provided as follows (Ex. J-1, 

p. 74): 

All crane and derrick work will be done to comply with OSHA 1926 

Subpart CC. All workers performing rigging or signaling operations will 

be certified as Qualified Riggers and Signalperson under the following 

standard. Cranes and derricks include, but are not limited to: crawler 

cranes, truck cranes, tower cranes, overhead gantry cranes and floating 

derricks. 

10 See supra footnotes 8 and 9.
19

work rule that would have proscribed the manner in which J.T. rigged the pipe assembly on 

August 1, 2014. (Ex. J-1; T. 140). 

71. The “Rigging” policy includes the following bullet point: “Never stand or work 

under a suspended load.” (Ex. J-1, p. 75). The safety manual contained no express guidance that 

addresses whether or under what circumstances workers may use their hands in guiding or 

balancing a suspended load. (T. 58, 84). 

72. Gallagher had no specific written or unwritten work rule that prohibited a worker 

from putting a hand directly on a suspended load, as J.T. was doing at the time of the accident. 

(T. 24). 

73. J.T. believed that it was sometimes appropriate for workers to put a hand directly on 

a suspended load because “usually you need to control it so it doesn’t swing around or take off 

... [o]r roll around.” (J.T. testimony, T. 24). J.T. did not believe he was violating any applicable 

safety standard or any Gallagher work rule by placing his hand on the suspended pipe assembly. 

74. Gallagher did not take reasonably diligent measures in preventing employees from 

placing their hands directly on suspended loads in the fabrication shop. Gallagher did not have a 

work rule that prohibited employees in the fabrication shop from placing their hands on 

suspended loads. Gallagher’s work rules and training actually endorsed the practice of 

employees placing hands directly on suspended loads under certain circumstances. J.T. believed 

it was appropriate for him to put his hand directly on the suspended pipe assembly at the time of 

the accident. Gallagher, in the exercise of reasonable diligence, should have known that J.T. 

would place a hand on the pipe assembly while it was suspended, and that he likely would be 

within the fall zone of the suspended load while doing so. 
20

75. The safety manual includes a written policy providing for progressive discipline for 

safety violations. (Ex. J-1, p. 99; T. 100-01). Gallagher’s foremen do not have the authority to 

impose such discipline, but rather may only recommend disciplinary action to the company 

safety committee. (T. 134-136). The Foreman did not recommend that J.T. be disciplined for 

his actions on the day of the accident. (T. 146-47). The Foreman has never recommended that 

any employee be disciplined for a safety violation. (T. 135-36). 

76. The only evidence that Gallagher had disciplined any worker for violation of a safety 

rule was a one-day suspension of an employee in April 2014 who was disciplined for standing on 

the mid-rail of a scissor lift. (T. 101, 103). 

77. The evidence is insufficient to establish that Gallagher failed to exercise reasonable 

diligence in the administration of its disciplinary policy in enforcing its safety program. 

78. Gallagher’s corporate safety director customarily walks through the fabrication shop 

on a weekly basis to inspect and monitor safety compliance. (T. 29, 133-34). 

79. Gallagher maintained an adequate inspection program to detect unsafe conditions. 

Gallagher took reasonably diligent measures to monitor compliance with safety requirements in 

the fabrication shop. 

The Foreman’s Incorrect Re-rigging of Pipe Assembly 

During the OSHA Inspection 

80. During the OSHA inspection on the day of the accident, the CO asked the Foreman 

how much the pipe assembly weighed. The Foreman responded by offering to weigh it by 

placing an “under-the-hook scale” on the hoist’s hook. The CO accepted the Foreman’s offer to 

weigh the pipe assembly (T. 48, 90-93), so the Foreman undid J.T.’s two-sling rigging and then 

re-rigged the pipe assembly using only a single synthetic web sling. The Foreman connected the 

two ends of the single sling to the pipe assembly by choker hitches at two points of attachment 
21

that were near the center of the pipe assembly. One of those points of attachment was around 

more than a single 4-inch pipe.11 (T. 49, 59, 142-44, 155; Ex. J-6). 

81. After re-rigging the pipe assembly in this manner, the Foreman operated the crane to 

hoist the pipe assembly about six inches above the two dollies. (T. 49, 99; Ex. R-7, p. 3). The 

pipe assembly was “teetering a bit” and the scale’s digital reading was still fluctuating when, 

about 30 seconds into the lift, a weld connecting the channel iron to one of the 4-inch pipes 

broke. (T. 49; Ex. R-7, p. 3). The Foreman lowered the pipe assembly back onto the dollies 

without having obtained a definite measurement of the pipe assembly’s weight. (T. 94-95). No 

one was injured when the weld broke during this lift. (T. 49; Ex. R-7, p. 3). 

82. During his inspection, the CO never queried the Foreman regarding the correctness 

of the manner in which either J.T. or the Foreman had rigged the pipe assembly on the day of the 

accident (T. 96, 131), and the Foreman did not volunteer any information on those subjects. (T. 

55). During his inspection, the CO presumed that the manner in which the Foreman had rerigged the pipe assembly before attempting to weigh it had been appropriate. (T. 95-97). (The 

CO had limited experience in rigging, and this inspection happened to be his first in which the 

manner of rigging became of interest. [T. 35-36, 102].) 

83. The Foreman acknowledged in his testimony that (a) the manner in which he had rerigged the pipe assembly was “not the safe way to do it,” (b) the broken weld should have been 

repaired before he re-rigged and hoisted the pipe assembly, and (c) he should “have put the right 

number of slings on it.” (T. 144-45). The Foreman explained that he was trying to 

 

11 The record is murky about which of the four-inch pipes the Foreman choked, but there 

is no dispute that one end of the sling was in a choker configuration around multiple four-inch 

pipes. While there is photographic evidence of the single sling passing through the hook of the 

under-the-hook scale (Ex. J-8; T. 51), there is no photograph of the two points of connection that 

this single sling had with the pipe assembly. (T. 49-50). 
22

accommodate the CO’s request to determine the weight of the pipe assembly, and that “I should 

have re-rigged it . . . but . . . I thought . . . we were just going to weigh it and – I should have 

welded the piece back on.” (T. 152). 

84. The Secretary did not cite Gallagher for any alleged violations as a consequence of 

the manner in which the Foreman re-rigged the pipe assembly. (Stip. ¶ 8; T. 12, 93-94). 

Employer Knowledge 

85. Gallagher did not have actual knowledge at the time of the accident on August 1, 

2014, that J.T. had rigged the pipe assembly, and that he had done so by himself and incorrectly. 

86. Gallagher should have known in the exercise of reasonable diligence that at the time 

of the accident on August 1, 2014, J.T. would undertake to rig the pipe assembly alone without 

being instructed to do so by the Foreman and outside the Foreman’s direct supervision, and that a 

violative condition could result. 

87. Gallagher did not have actual knowledge at the time of the accident on August 1, 

2014, that J.T. was standing in the fall zone and had put his hand directly on the suspended pipe 

assembly. 

88. Gallagher should have known in the exercise of reasonable diligence at the time of 

the accident on August 1, 2014, that J.T. would stand in the fall zone and place a hand directly 

on a suspended load. 

Classification 

89. There was a substantial probability that death or serious physical harm could result 

from the incorrect manner in which J.T. rigged the pipe assembly. 

90. There was a substantial probability that death or serious physical harm could result 

from J.T’s act of standing in the fall zone and placing his hand on the pipe assembly while it was 

suspended. 
23

DISCUSSION

The Commission obtained jurisdiction under section 10(c) of the Occupational Safety and 

Health Act (Act) upon Gallagher’s timely contest of the citation and proposed penalty. 29 

U.S.C. § 659(c). 

The parties have stipulated to facts that establish that Gallagher met the Act’s definition 

of “employer” (Stip. ¶ 1) and was thus covered by the Act. 29 U.S.C. § 652(5). 

To prove a violation of an OSHA safety or health standard promulgated under section 

5(a)(2) of the Act, the Secretary must establish by a preponderance of the evidence 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 69 (1st Cir. 1982). 

Item 1 -- § 1910.179(n)(3)(i) 

Elements 1, 2, & 3 

As noted at the outset, § 1910.179(n)(3)(i) requires that a crane’s “load shall be well 

secured and properly balanced in the sling or lifting device before it is lifted more than a few 

inches.” The parties agree that this standard applies. (Joint Pretrial Statement, April 9, 2015). 

The evidence supports the parties’ understanding that § 1910.179(n)(3)(i) was applicable to the 

operation of Gallagher’s overhead bridge crane on August 1, 2014. (T. 60). 

Item 1 alleges that Gallagher violated § 1910.179(n)(3)(i) on the day of the accident in 

that the pipe assembly being hoisted “was not well secured, nor properly balanced.” The 

Secretary met his burden to prove that Gallagher violated the cited standard in the manner 

alleged. The Foreman’s testimony establishes that the pipe assembly was not properly balanced 

in the sling because it was susceptible to teetering longitudinally. (T. 127-28, 130-33). The 
24

Foreman’s testimony also establishes that the pipe assembly was not well secured in the sling 

because one of the web slings was choked around more than a single pipe. (T. 127-28, 130-33). 

The preponderance of the evidence also establishes that the two Gallagher employees 

standing near the pipe assembly during the hoist – J.T. and Myles – were exposed to the violative 

condition.12

Element 4 - Employer Knowledge of § 1910.179(n)(3)(i) Violative Condition 

To establish employer knowledge, the Secretary must prove that Gallagher knew or, with 

the exercise of reasonable diligence, could have known of the condition constituting the 

violation. Contour Erection & Siding Sys., Inc., 22 BNA OSHC 1072, 1073 (No. 06-0792, 

2007). The actual or constructive knowledge of an employer’s supervisors and foremen is 

generally imputable to the employer. Rawson Contractors Inc., 20 BNA OSHC 1078, 1080-81 

(No. 99-0018, 2003); A.P. O’Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-369, 1991). 

The Foreman provided uncontroverted credible testimony that he did not instruct J.T. to 

rig the pipe assembly and he did not observe J.T. rig it incorrectly. There is no substantial 

evidence that Gallagher had actual knowledge of the violative condition.13

 

12 Gallagher has not argued in its post-hearing briefs that the Secretary failed to prove 

elements 2 and 3 of the Secretary’s burden of proof. 

13 J.T. testified: “I don't think [the Foreman] would say he had never seen me rig” the 

pipe assembly in the same configuration that J.T. had used on the day of the accident. (T. 26). 

The Secretary argues that this testimony “calls into question” Gallagher’s claim that it did not 

have actual knowledge of the violative condition, but the Secretary has not presented any fully 

developed argument that the record as a whole supports finding that Gallagher had actual 

knowledge. (Sec’y Brief-in-Chief, p. 7). Even if the Secretary had made such a fully developed 

argument, the quoted testimony from J.T. was not developed further and by itself is far too vague 

and indefinite to amount to substantial evidence that the Foreman had actual knowledge. 
25

To prove constructive knowledge, the Secretary must show that Gallagher’s failure to 

discover an alleged violative condition was due to a lack of reasonable diligence. See Ragnar 

Benson Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999). 

“In assessing reasonable diligence, the Commission considers several factors, including 

an employer’s obligations to implement adequate work rules and training programs, adequately 

supervise employees, anticipate hazards, and take measures to prevent violations from 

occurring.” S. J. Louis Constr. of Tex., 25 BNA OSHC 1892, 1894 (No. 12-1045, 2016). 

Whether an employer has exercised reasonable diligence is a question of fact that “will 

vary with the facts of each case.” Martin v. OSHRC, 947 F.2d 1483, 1484 (11th Cir. 1991); see 

also Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2129 (No. 92–0851, 1994) (finding that 

a preponderance of the evidence established the cited employer was reasonably diligent);

Precision Concrete Constr., 19 BNA OSHC 1404, 1407 (No. 99-0707, 2001) (noting that 

Secretary has burden of identifying what reasonable diligence required).

Exercise of Reasonable Diligence in 

Inspection/Examination of Fabrication Shop 

“[A]n employer who lacks actual knowledge can nevertheless be charged with 

constructive knowledge of conditions that could be detected through an inspection or 

examination of the worksite.” Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050 (No. 91–3467, 

1995). 

“An employer is ... chargeable with knowledge of conditions which are plainly visible to 

its supervisory personnel.” Id., at n.4. Whether an employer should have discovered a violative 

condition that is plainly visible requires consideration of how long the violative condition 

existed. Thos. Indus. Coatings, Inc., 23 BNA OSHC 2082, 2086 (No. 06-1542, 2012) (ruling 
26

that the absence of evidence of how long a violative condition existed precludes finding that the 

employer could have known of the condition with the exercise of reasonable diligence.) 

“Where the employer maintains an adequate inspection program, the burden is on the 

Secretary to demonstrate that the employer’s failure to discover the violative condition was due 

to a lack of reasonable diligence.” Trinity Marine Nashville, Inc., 19 BNA OSHC 1015, 1017 

(No. 98-0144, 2000). 

Gallagher maintained and executed an adequate inspection program in the fabrication 

shop. (See supra Findings of Fact ¶¶ 47 & 78-79). Although J.T.’s rigging of the pipe assembly 

was plainly visible to anyone in his vicinity, the evidence is insufficient to establish that 

supervisory personnel failed to exercise reasonable diligence in not observing him do so. J.T. 

rigged the pipe assembly “in a matter of minutes” (T. 28) during one of those times when the 

Foreman was in his office attending to paperwork. For the vast majority of the workday the 

Foreman was on the floor of the fabrication shop supervising the work of the pipefitters. In view 

of the short duration of the violative condition, and the Foreman’s near constant presence on the 

fabrication shop floor, the Secretary has not established that Gallagher failed to exercise 

reasonable diligence in not discovering the violative condition in the course of its normal 

inspection and examination of the worksite. LJC Dismantling Corp., 24 BNA OSHC 1478, 1481 

(No. 08-1318, 2014) (finding that Secretary did not prove inspection program was inadequate 

where employer’s superintendent inspected the worksite multiple times a day and directed the 

shop steward to check that employees were engaged in safe practices, and there was no evidence 

of a need for more intensive monitoring); N. Y. State Elec. & Gas Corp. (NYSEG) v. Sec’y of 

Labor, 88 F.3d 98, 110 (2d Cir. 1996) (observing that it is a “patently unworkable burden on 

employers” to insist “that each employee be under continual supervisor surveillance”). 
27

Adequacy of Training Programs, Work Rules, and Instructions 

Even though Gallagher did not provide J.T. detailed formal training in rigging, the 

Secretary has not proven that Gallagher failed to exercise reasonable diligence in relying on 

J.T.’s union training, his years of experience as a journeyman pipefitter, and the Foreman’s 

observations of J.T.’s generally safe work habits, in concluding that J.T. had sufficient training 

and experience in rigging to perform his routine work as a pipefitter. LJC Dismantling Corp., 24 

BNA OSHC at 1481-82 (ruling that Secretary did not establish that employer should have given 

employee more specific instructions on scaffolding because the Secretary failed to prove that 

employer should have been aware that the employee’s extensive prior training and experience in 

scaffolding was deficient); cf. Par Elec. Contractors Inc., 20 BNA OSHC 1624, 1628 (No. 99-

1512, 2004) (rejecting argument that employer was not required to provide specific instructions 

to employees who were journeyman linemen, who had “years of training and field experience,” 

on certain safe practices when working in the vicinity of an energized conductor -- noting that 

“employers cannot count on employees' common sense, experience, and training by former 

employers or a union to preclude the need for specific instructions”). 

J.T. had been trained by his union in rigging, and testimony of both J.T and the Foreman 

indicated that it was customary for Boston-area employers to rely on that union training and not 

to provide additional extensive rigging training and instruction to journeymen pipefitters in their 

employ. (See supra Findings of Fact ¶ 24). J.T.’s uncontradicted testimony that he had not 

received any significant training in rigging from any of his approximately 20 employers 

throughout his career is particularly compelling on this point. The Secretary presented no 

evidence indicating that Gallagher failed to exercise reasonable diligence in not providing J.T. 

with detailed formal training in rigging. See Donohue Indus., Inc., 20 BNA OSHC 1346, 1350-

51 (No. 99-0191, 2003) (more specific instructions to trained electricians on grounding not 
28

required because it was reasonable for employer to expect its trained electricians to be familiar 

with basic tenets of their trade). Indeed, in the conduct of his inspection the CO concluded, 

whether rightly or wrongly, that the employees in the fabrication shop had received sufficient 

training in rigging and that J.T. had received proper training on how to rig the pipe assembly that 

injured him. (T. 80-81). The Secretary presented no direct evidence that would controvert the 

CO’s stated conclusions on J.T.’s training.

Gallagher had no work rules that either prescribed or proscribed ways of rigging the 

myriad types of loads that are hoisted in the Gallagher fabrication shop from day to day. As J.T. 

observed, Gallagher expected him and the other pipefitters simply to rig material “correctly.” (T. 

23). The Secretary has not demonstrated that Gallagher failed to exercise reasonable diligence 

by not having a work rule that explicitly prescribed or proscribed the precise manners by which 

to rig the type of pipe assembly that was involved in the accident. 

The Cranes and Derricks policy in Gallagher’s corporate safety manual provided: “All 

workers performing rigging ... operations will be certified as Qualified Riggers.” (Ex J-1, p. 

74.) The safety manual’s use of the term “qualified rigger” denoted the meaning assigned to that

term as set forth in subpart CC of the construction industry standards, at 29 C.F.R. § 1926.1401. 

(See supra Findings of Fact ¶ 42). However, even though Gallagher’s safety manual required 

that all rigging be done by a “qualified rigger” as defined in subpart CC, the cited standard, § 

1910.179, does not.14

 

14 Subpart CC of part 1926, which is applicable to cranes and derricks used in 

construction, requires that under certain circumstances, only a “qualified rigger” may rig the 

material to be lifted. Because Gallagher’s overhead bridge crane was not being used in 

construction, subpart CC was not applicable. But even if subpart CC had been applicable to the 

operation of Gallagher’s bridge crane, an exception in that subpart would have excepted it from 

compliance with the requirements of subpart CC, and instead would have made applicable most 
29

Neither party attempted to prove or disprove whether J.T. was a “qualified rigger” as that 

term was used in the corporate safety manual, presumably because the parties correctly 

understood that subpart CC of part 1926 was not applicable to the operation of the bridge crane.

(See supra Findings of Fact ¶ 68). Similarly, in their respective post-hearing briefs, neither party 

addresses the matter of whether J.T. was a “qualified rigger” as that term was used in the safety 

manual. 

Since the matter of whether J.T. was a “qualified rigger” as that term was used in the 

safety manual was not litigated, the record affords no basis on which to conclude that J.T. either 

was or was not such a “qualified rigger.” Similarly, there is no basis on which to conclude 

whether J.T.’s act of rigging the pipe assembly violated the Gallagher’s written policy that only 

workers certified as “qualified riggers” perform rigging operations.15 (Ex. J-1, p. 74). 

 

of the requirements of § 1910.179, which is the standard cited in item 1. This regulatory 

exception is set forth in § 1926.1438(a), which provides as follows: 

(a) Permanently installed overhead and gantry cranes. The requirements of § 

1910.179, except for § 1910.179(b)(1), and not the requirements of this 

subpart CC, apply to the following equipment when used in construction and 

permanently installed in a facility: overhead and gantry cranes, including 

semigantry, cantilever gantry, wall cranes, storage bridge cranes, and others 

having the same fundamental characteristics. 

15 Considering J.T.’s union training and professional experience, it is entirely possible 

that he could reasonably be regarded to possess the knowledge and skills to have been deemed a 

“qualified rigger,” as that term is used in its company Cranes and Derricks policy, for many 

rigging tasks. 

Conversely, there is circumstantial evidence that Gallagher did not deem to J.T to be a 

“qualified rigger.” Specifically, in the year 2010, Gallagher provided formal training for 

“qualified rigger” status only to certain supervisory personnel, including the Foreman. Gallagher 

has not provided “qualified rigger” training to any non-supervisory personnel. Moreover, 

contrary to Gallagher’s Cranes and Derricks policy, the content of the toolbox talk that the 

Foreman gave in April 2014 indicated that a “qualified rigger” was not required to be involved in 

each and every rigging operation. (Ex. R-11). This evidence, coupled with the Foreman’s stated 

practice of being directly involved in supervising the rigging of the Novartis project pipe 

assemblies, would support the reasonable inferences that Gallagher regarded the Foreman, but 
30

However, to the extent that Gallagher’s safety manual created uncertainty as to whether 

the minimum regulatory standards for operation of the bridge crane in the fabrication shop were 

prescribed by applicable general industry standards rather than subpart CC of the construction 

industry standards, the safety manual was flawed. (See T. 81, 104). See PSP Monotech Indus., 

22 BNA OSHC 1303, 1306 (No. 06-1201, 2008) (noting that “the Secretary may prove 

constructive knowledge by showing that the employer failed to establish an adequate program to 

promote compliance with safety standards”), citing NYSEG, 88 F.3d at 106 (2d Cir. 1996). 

“When determining the adequacy of instructions given to an employee, the Commission 

considers how effectively the information is communicated in light of the employee’s training.” 

S. J. Louis Constr. of Tex., 25 BNA OSHC at 1895; see also LJC Dismantling Corp., and Par 

Elec. Contractors, Inc. 20 BNA OSHC 1624. “More generalized instructions may be 

permissible in light of an employee’s specialized training and experience, just as they may be 

inadequate in light of an employee’s lack of experience, poor safety history, or lack of 

supervision.” S. J. Louis Constr. of Tex., 25 BNA OSHC at 1896. 

According to the Foreman, the procedure for rigging the large Novartis project pipe 

assemblies was that he would form a team and he would be directly involved in the rigging 

operation. He did this because the Novartis project pipe assemblies were “big and heavy, and I 

feel it's ... a dangerous job to do and that's why I pick the right guys and we do it.” (T. 122-123). 

The Foreman seemingly believed that pipefitters in the fabrication shop recognized and 

understood that the prescribed procedure for rigging operations involving large and heavy pipe 

 

not J.T., to be a “qualified rigger,” within the meaning of that term as used in its Cranes and 

Derricks policy, with respect to rigging a large pipe assembly like the one involved in the 

accident. 
31

assemblies like the one involved in the accident was that such rigging operations were to be 

started only at his direction and only under his direct supervision. (T. 121-124). 

There is no evidence that addressed the method or manner by which the Foreman 

communicated this procedure to workers in the fabrication shop. Since there is no evidence this 

procedure was set forth in any written form, it is likely that he communicated it to the workers

orally, if at all. In any event, whether this protocol was communicated in writing or orally or 

both, the weight of the evidence establishes that it was communicated inadequately. 

The Foreman had not observed J.T. engage in any unsafe act or practice, and in his 

estimation J.T. “always did the right thing.” (T. 131, 132, 141, 153). The Foreman also believed 

that J.T. knew how to rig the pipe assembly properly, based on his union training and also 

because J.T. had worked “with us on some of the other big pipe assemblies.” (T. 126, 153, 156). 

The Foreman’s belief, however, does not completely square with his recognition that the 

Novartis pipe assemblies are “big and heavy, and I feel it's ... a dangerous job to do and that's 

why I pick the right guys and we do it.” (T. 122-123). Had the Foreman effectively 

communicated to J.T. that the Novartis project pipe assemblies were to be rigged only at the 

Foreman’s direction and only under his direct supervision, it is more likely than not that J.T. 

would have understood and complied with that protocol. 

The fact that Joe Myles assisted J.T. in the hoist of the improperly rigged pipe assembly 

and apparently did not caution J.T. that doing so contravened the Foreman’s prescribed 

procedure, further supports the conclusion that this protocol was not adequately communicated 

to the fabrication shop pipefitters. 

J.T. testified credibly that he believed he was doing what the Foreman would have 

expected him to do in acting alone and rigging the pipe assembly without the Foreman expressly 
32

directing him to do so. J.T. had rigged the pipe assembly by himself (and without the Foreman’s 

foreknowledge) two times before without reprimand or any other adverse consequence. In view 

of the Foreman’s near constant presence on the shop floor, it is difficult to conceive how, 

following those two prior rigging operations, the Foreman failed to discern that the pipe 

assembly had been rigged and moved without him having been directly involved. The 

Foreman’s lack of foreknowledge of any of the three times that J.T. did the “dangerous job” of 

rigging the pipe assembly, supports the conclusion that whatever instructions the Foreman 

communicated to J.T. as well as to other workers in the fabrication shop regarding rigging large 

and heavy pipe assemblies, those instructions were not communicated adequately.16

Further, the Foreman’s inattentiveness in re-rigging the pipe assembly after the accident, 

when he substantially replicated J.T.’s improper rigging as the CO looked on, suggests that the 

practice of rigging pipe assemblies with only two points of attachment and with more than a 

single pipe choked, might not have been as uncommon a practice as believed. This might also 

explain, at least in part, why J.T. believed (erroneously) that he had rigged the pipe assembly 

correctly. 

The Foreman certainly anticipated the hazard posed by even an experienced pipefitter 

undertaking alone and unsupervised the “dangerous job” of rigging the “big and heavy” pipe 

assemblies for the Novartis project. (T. 122-23). However, the Foreman failed in his 

supervision of even the experienced journeyman pipefitters on the rigging of those pipe 

 

16 Both the Foreman and J.T. provided straightforward testimony, and both spoke with 

genuineness and sincerity. Both appeared to make honest efforts to abide by their oaths to testify 

truthfully. The Foreman was plainly mistaken in believing that up until the time of the accident, 

no Novartis project pipe assemblies had been rigged without his knowledge, when in actuality, 

J.T. had rigged the pipe assembly that injured him twice before without the Foreman’s 

knowledge. It is apparent, therefore, that even though the Foreman spent most of the workday 

on the shop floor supervising work, there was significant activity in the shop of which he had no 

actual awareness. 
33

assemblies, by failing to adequately communicate instructions that the pipe assemblies be rigged 

only at his expressed direction and only under his direct supervision. Cf. Par Elec. Contractors, 

Inc., 20 BNA OSHC 1624.

Accordingly, the preponderance of the evidence establishes that the Foreman, in the 

exercise of reasonable diligence, should have known of the hazardous condition constituting the 

violation, which may be imputed to Gallagher based on his position as shop foreman. Rawson 

Contractors, Inc., 20 BNA OSHC 1078.

Defense of Unpreventable Employee Misconduct 

Gallagher argues that the violative condition was a product of J.T.’s unpreventable 

misconduct of using “an improper rigging technique and a failure to follow training.” (Resp’t 

Brief-in-Chief, p. 13). 

To establish the defense of unpreventable employee misconduct, the employer must 

prove that “(1) it has established work rules designed to prevent the violation; (2) it has 

adequately communicated those rules to its employees; (3) it has taken steps to discover 

violations; and (4) it has effectively enforced the rules when violations have been discovered.” 

Burford's Tree, Inc., 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010). “The Commission has 

considered these same factors in evaluating both an employer's constructive knowledge and the 

merits of an employer's unpreventable conduct affirmative defense.” Id. at 1952; S. J. Louis 

Constr. of Tex., 25 BNA OSHC at 1898, n. 17.

As discussed above, Gallagher failed to prove the second element of the affirmative 

defense. Specifically, Gallagher failed to establish that it adequately communicated to J.T. and 

to other workers in the fabrication shop that the Novartis project pipe assemblies were to be 

rigged only at the express direction, and only under the direct supervision, of the Foreman. For 

the same reasons described above in connection with evidence of constructive knowledge, 
34

Gallagher has not established that the violation was the result of unpreventable employee 

misconduct. 

Classification of Violation 

The violation of § 1910.179(n)(3) is affirmed as serious. The failure of the load to be 

well secured and properly balanced in the sling could result in serious injury. (See supra

Findings of Fact ¶ 89).

Item 2 -- § 1910.184(c)(9) 

Elements 1, 2, & 3 

As noted at the outset, § 1910.184(c)(9) provides that “[w]henever any sling is used, ... 

[a]ll employees shall be kept clear of loads about to be lifted and of suspended loads.” The 

parties agree that this standard applies (Joint Pretrial Statement, 4/9/2015), and the record 

evidence supports that understanding. 

Amended item 2 alleges Gallagher violated § 1910.184(c)(9) in the following manner: 

“On or about 8/1/2014, an assembly of pipes was hoisted with a ... bridge crane with employees’ 

hands on it.” Commission precedent supports the Secretary’s contention that J.T.’s act of 

placing his hand directly on the suspended load violated the standard.17 J.T. was, of course, 

exposed to the violative condition.18

 

17 Before subpart CC of part 1926 became effective in the year 2010, the construction 

industry standard for cranes and derricks included § 1926.550(a)(19), which was identical to 

§ 1910.184(c)(9) -- it provided as follows: “All employees shall be kept clear of loads about to

be lifted and of suspended loads.” Several decisions of Commission judges have affirmed 

alleged violations of this identical former construction industry standard in situations where an 

employee had placed a hand directly on a suspended load. See Kelly-Hill Co., No. 02-447, 2002 

WL 31835496, at *8 (OSHRC ALJ Dec. 9, 2002)) (finding violation of § 1926.550(a)(19) where 

employee was fatally injured while steadying a suspended load with his hands rather than with a 

tag line); J. E. Dunn Constr. Co., No. 04-0251, 2005 WL 1927104, at *4 (OSHRC ALJ Aug. 1, 

2005) (finding that employees who had guided a suspended load by hand were not “kept clear” 

of the load in violation of § 1926.550(a)(19)); Boh Bros. Constr. Co., LLC, No. 99-1590, 2000 
35

Element 4 -- Employer Knowledge of § 1910.184(c)(9) Violative Condition 

As with item 1, there is no evidence that Gallagher had actual knowledge of the violative 

condition. However, the weight of the evidence establishes that Gallagher’s failure to discover 

the violative condition was due to a lack of reasonable diligence, so Gallagher is deemed to have 

had constructive knowledge. 

Gallagher had no work rule that prohibited workers in the fabrication shop from placing 

hands directly on a load suspended by the bridge crane, and J.T. was never told not to do so. (T. 

24). See Danis Shook Joint Venture XXV, 19 BNA OSHC at 1501 (defining “work rule”). To 

the contrary, Gallagher’s safety manual indicated that all crane and derrick operations should be 

conducted according to construction industry standard for cranes and derricks, which allows a 

worker to place hands directly on suspended loads under specified limited circumstances.19

 Not 

only was there no work rule prohibiting placing hands directly on a suspended load, J.T. 

 

WL 385624, at *5 (OSHRC ALJ Apr. 17, 2000) (confirming employer’s concession that it 

violated § 1926.550(a)(19) when an employee was fatally injured while attempting to push a 

suspended load with his hands); see also Marathon Oil Co., No. 86-0670, 1987 WL 89184, at *2 

(OSHRC ALJ Oct. 5, 1987) (“Unless an employee is within the fall danger zone of a particular 

suspended load, there is no violation of § 1910.184(c)(9)”). 

18 Gallagher has not argued in its post-hearing briefs that the Secretary failed to prove 

either that the standard was violated or that an employee had access to the violative condition. 

19Unlike the cited general industry standard relating to slings, the construction industry 

standard for cranes and derricks (codified in subpart CC of part 1926), which was not applicable 

here, seemingly allows employees to place hands directly on suspended loads. (T. 104). See 

“Cranes and Derricks in Construction,” 73 Fed. Reg. 59714, 59757 (proposed Oct. 9, 2008) (to 

be codified at 29 C.F.R. pt. 1926) (observing that riggers “often guide crane loads manually”); 

id. at 59805 (observing that “guiding a load, even with a tag line, sometimes necessitates that the 

employee be positioned within the fall zone”); see also CO testimony at T. 104-05. Section 

1926.1425 of subpart CC thus allows a worker who is “guiding a load” to be in the fall zone, but 

only when the following three conditions are met: “materials being hoisted must be rigged to 

prevent unintentional displacement”; “[h]ooks with self-closing latches or their equivalent must 

be used”; and the “materials must be rigged by a qualified rigger.” § 1926.1425(b) & (c). 
36

indicated that it was not unusual for him to do so because “usually you need to control it so it 

doesn't swing around or take off ... [or] roll around.” (T. 24). 

Considering that workers in the construction industry may under some circumstances 

place hands directly on a suspended load (see supra footnote 19), and considering further that the 

pipefitters trade is generally regarded to be a construction industry trade (see supra Findings of 

Fact ¶ 22), Gallagher could not reasonably regard J.T.’s union training and years of work 

experience as having informed him not to place hands directly on a load that was suspended by 

the fabrication shop’s bridge crane. Cf. Par Elec. Contractors, Inc., 20 BNA OSHC 1624.

Gallagher’s failure to have, and thus enforce, a work rule that prohibited a worker from 

placing hands directly on a suspended load in the fabrication shop constitutes a lack a reasonable 

diligence. The violative condition occurred due a lack of such reasonable diligence, so Gallagher 

is charged with having constructive knowledge of the violative condition. 

Defense of Unpreventable Employee Misconduct 

The proof that Gallagher had constructive knowledge of the violative condition 

effectively disproves its defense of unforeseeable employee misconduct. Burford's Tree, Inc., 22 

BNA OSHC 1948. The first element of the unforeseeable employee misconduct defense is that 

an employer “has established work rules designed to prevent the violation.” Burford's Tree, Inc.,

22 BNA OSHC at 1951. As discussed above, Gallagher had no work rule that prohibited placing 

hands directly on a suspended load, and J.T. was never instructed not to do so. The toolbox talk 

on rigging that J.T. attended in April 2014 did not address the subject of placing hands directly 

on a suspended load. Rather, the toolbox talk was geared toward workers in the construction 

industry, where the placing of hands directly on a suspended load is sometimes permitted under 

applicable standards. (See supra footnote 19). That toolbox talk may well have complemented 
37

J.T.’s union training, inasmuch as the pipefitters’ trade is generally regarded as a construction 

trade. (See supra Findings of Fact ¶ 22 and footnote 19). 

Gallagher has failed to carry its burden to prove that the violation was the result of 

unpreventable employee misconduct. 

Classification 

The violation of § 1910.184(c)(9) is affirmed as serious. The failure to keep clear of the 

suspended load could result in serious injury as occurred in this case. (See supra Findings of 

Fact ¶ 90).

Penalty Assessment 

The permissible range of penalties for a serious violation is from no penalty to $7000. 29 

U.S.C. § 666(b). The Commission and its judges conduct de novo penalty determinations and 

have full discretion to assess penalties based on the facts of each case and the applicable 

statutory criteria. Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) aff’d, 73 F.3d 

1466 (8th Cir. 1996); Allied Structural Steel, 2 BNA OSHC 1457, 1458 (No. 1681, 1975). 

Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the 

Commission give “due consideration” to four criteria: the size of the employer’s business, the 

gravity of the violation, the employer’s good faith, and its prior history of violations. Specialists 

of the S., Inc., 14 BNA OSHC 1910 (No. 89-2241, 1990). Gravity is the primary consideration 

among these four statutory criteria, and is determined by “such matters as the number of 

employees exposed, the duration of the exposure, the precautions taken against injury, and the 

likelihood that any injury would result.” J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 

(No. 87-2059, 1993). 

The Secretary proposed the maximum permissible penalty of $7000 for item 1, and a 

penalty of $4250 for item 2, for a total proposed penalty of $11,250. The proposed penalties 
38

were the product of a defined penalty calculus that determines penalty amounts based upon on 

certain parameters. (T. 65-68). 

The CO regarded item 1 (improper rigging) to involve a “higher severity” hazard and a 

“greater probability” of injury resulting from the violation, thusly concluding that the overall 

gravity of the violation was “high gravity,” for which the Secretary’s starting point in the penalty 

calculus is $7000. (T. 66-68). The CO reached this conclusion based on “the actual occurrence 

and the likelihood of a permanent physical injury or death resulting in an accident involving a 

load of this size.” (T. 65). The record does not support the CO’s apparent conclusion that the 

hazard from the improper rigging was of “higher” severity or that there was a “greater” 

probability of injury resulting. The most compelling indicator to the contrary is that the Foreman 

re-rigged the pipe assembly in the substantially identical way in which J.T. had rigged it, with 

the CO looking on. The Foreman intended to hoist the pipe assembly high enough to weigh it, 

and then lower it back down, which was essentially the same movement that J.T. had planned 

earlier. (T. 100). When the Foreman hoisted the improperly rigged pipe assembly, another weld 

broke, but no one was injured. There is no evidence that there was a greater probability that 

anyone was likely to have been injured in that incident, since, unlike J.T. earlier, everyone stayed 

clear of the improperly rigged suspended load. (T. 100). 

The CO regarded item 2 (hand on suspended load) to be of “high severity” and “lesser 

probability” in concluding that the overall gravity of the violation was “moderate gravity.” (T. 

66-68). The CO believed there was a lesser probability of injury from the violation because only 

one worker (J.T.) was exposed to the violative condition. (T. 66-68, 84-87; Ex. R-7). 

As to the overall gravity of the violations, the evidence shows that two employees (not, as 

the CO concluded, three) were exposed to the item one violation (improper rigging) and one 
39

employee was exposed to the item 2 violation (hand on suspended load). Employee exposure to 

both violations was for brief periods of time, but this brief exposure nevertheless resulted in one 

of those employees sustaining a serious permanent injury to his right hand. While the two 

violations were both causative factors in J.T.’s injury, the item 2 violation (hand on the 

suspended load) was a greater contributing factor to the injury than the item 1 violation 

(improper rigging). 

The record establishes that Gallagher took precautions to prevent injury as to the item 1 

violation, in that Gallagher had a procedure in place designed to prevent injury from improper 

rigging of large pipe assemblies like the one involved in the accident. In contrast, Gallagher had 

no work rule that prohibited workers from placing hands directly on loads suspended by the 

bridge crane. 

The CO did not accord Gallagher any credit for good faith as to item 1 because the 

Secretary’s policy is not to allow such credit for a “high gravity” violation. The CO did reduce 

the proposed penalty for item 2 for good faith by 15% to $4250, based on the CO’s conclusion 

that such credit was appropriate “for the good faith demonstrated by Thomas Gallagher's safety 

and health management system,” which the CO regarded “to be fairly comprehensive and 

progressive, only containing minor deficiencies.” (T. 67-68). As discussed previously, the CO’s 

characterization of item 1 as “high gravity” is not supported by the evidence. If the CO had 

classified it more properly as “moderate gravity,” the CO would have accorded credit for good 

faith for item 1 as well. (T. 65-68). 

The CO did not credit Gallagher with any reduction for size, because with about 258 

employees Gallagher was just slightly above the Secretary’s threshold of 250 employees for a 

penalty reduction for size. (T. 66). 
40

The CO did not accord any credit for compliance “history” because Gallagher had not 

been inspected in over five years. (T. 65). However, the evidence indicates that Gallagher 

maintained a generally effective safety and health program that had resulted in a generally 

compliant and safe workplace. (T. 55, 122, 134). Gallagher should be according some penalty 

credit for prior compliance history, notwithstanding the absence of any inspection in the 

preceding five years.

After considering all factors including gravity, size, good faith, and history, a penalty of 

$1050 is assessed for item 1, and a penalty of $2450 is assessed for item 2. 

ORDER 

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Federal Rule of Civil Procedure 52(a). If any finding is in actuality a 

conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be 

deemed so, any label to the contrary notwithstanding. Based upon the foregoing findings of fact 

and conclusions of law, it is ORDERED that: 

1. Citation 1, Item 1 for a serious violation of 29 C.F.R. § 1910.179(n)(3)(i) is 

AFFIRMED and a penalty of $1050 is ASSESSED; and 

2. Citation 1, Item 2, for a serious violation of 29 C.F.R. § 1910.184(c)(9) is AFFIRMED 

and a penalty of $2450 is ASSESSED. 

SO ORDERED. 

/s/ 

WILLIAM S. COLEMAN 

Administrative Law Judge 

DATED: July 18, 2016