United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, DC 20036-3457 

SECRETARY OF LABOR, 

v. 

Complainant, 

OSHRC Docket No. 16-1587 

TNT CRANE & RIGGING, INC. 

Respondent. 

ON BRIEFS: 

Brian A. Broecker, Senior Attorney; Heather R. Phillips, Counsel for Appellate Litigation; 

Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety and Health; Elena 

S. Goldstein, Deputy Solicitor; Kate O’Scannlain, Solicitor of Labor; U.S. Department of 

Labor, Washington, DC 

For the Complainant 

Pamela D. Williams, Esq.; Travis W. Vance, Esq.; Fisher & Phillips LLP, Charlotte, NC 

and Houston, TX 

For the Respondent 

DECISION 

Before: ATTWOOD, Chairman and LAIHOW, Commissioner. 

BY THE COMMISSION: 

TNT Crane & Rigging, Inc. is a crane service provider based in Houston, Texas. In May 

of 2016, a TNT employee suffered serious injuries when part of a crane being disassembled by a 

TNT crew in Georgetown, Texas, contacted a power line. The Occupational Safety and Health 

Administration conducted an inspection and issued TNT a serious citation alleging two violations 
 

 

 

 

 

 

 

 

 

 

 

 

of the Cranes and Derricks in Construction Standard, 29 C.F.R. § 1926.1400, with a proposed 

penalty of $24,942.1 

Administrative Law Judge Brian A. Duncan vacated both citation items on the grounds that 

the cited provisions did not apply to the disassembly work being performed by TNT’s crew. On 

review, the Commission reversed the judge’s decision, finding that the cited standards were 

applicable, and remanded for the judge to address the remaining issues in the case. TNT Crane & 

Rigging, Inc., No. 16-1587, 2020 WL 1657789 (OSHRC March 27, 2020). On remand, the judge 

again vacated both citation items, finding that the Secretary failed to establish TNT had knowledge 

of the alleged violative conditions. For the reasons discussed below, we reverse the judge and 

affirm both citation items. 

BACKGROUND 

On the day of the incident, two TNT employees, a spotter/rigger (SR1) and a crane 

operator, had finished a week-long project installing new antennas on a communications tower. 

The employees used a Grove GMK all-terrain 275-ton mobile crane to perform this work. With 

the project complete, their next task was to disassemble the crane for transport. 

To assist with the crane’s disassembly, TNT sent two additional employees—a second 

spotter/rigger (SR2) and a driver/rigger—to the worksite. All four employees met to discuss a 

plan for “breaking the crane down” and loading it onto a semi-truck trailer. The crew’s 

responsibilities under the plan were as follows: the crane operator would operate the crane; SR2 

would spot for the crane operator and hold the load line; the driver/rigger would drive the truck 

that the boom would lay on; and SR1 would spot for the driver/rigger while guiding the truck 

forward. During the disassembly process, the crane operator had to lower the boom onto the 

trailer’s flatbed with the assistance of the other crew members, so that the boom’s extensions could 

be removed. When it came time to lower the boom, SR2 held a metal connector, known as a 

“beckett,” at the end of the load line so that the line would stay taut during the boom’s descent. 

1 Item 1 alleges a violation of 29 C.F.R. § 1926.1407(b)(3) for exposing employees to the hazard 

of electrical shock by failing to use at least one of the measures required to prevent encroachment 

or contact with the power lines while disassembling the crane. Item 2 alleges a violation of 29 

C.F.R. § 1926.1407(d) for placing “[p]art of a crane/derrick, load line, or load (including rigging 

and lifting accessories) whether partially or fully assembled, . . . closer than the minimum 

approach distance under Table A (see 1926.1408) to a power line.” 

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As the crane operator lowered the boom, the load line held by SR2 contacted a 14,400-volt power 

line, electrocuting SR2. SR2 was hospitalized with severe burns and other serious injuries. 

I. DISCUSSION 

To prove a violation, “the Secretary must show 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 cited employer either knew or could have known 

of the condition with the exercise of reasonable diligence.” 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). Here, 

the Secretary alleges violations of § 1926.1407(b)(3) (Item 1) and § 1926.1407(d) (Item 2), two 

provisions located in a section of the construction crane standard entitled “Power line safety (up 

to 350kV) – assembly and disassembly.” 

As noted, we have already determined that these provisions apply to the work at issue. TNT 

Crane, No. 16-1587, at 11, 2020 WL 1657789, at *8. On remand, the judge addressed the 

remaining elements of the Secretary’s burden of proof and vacated both citation items. The judge 

found that the Secretary established both noncompliance and exposure, but failed to establish that 

TNT had knowledge of the violative conditions. The only issue on review is whether the judge 

erred in finding that knowledge was not proven. 

A. Knowledge 

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

exercise of reasonable diligence could have known of a hazardous condition. Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). It is well established under Commission 

precedent that the knowledge of a supervisor can be imputed to the employer. See, e.g., Deep S. 

Crane & Rigging Co., 23 BNA OSHC 2099, 2102 (No. 09-0240, 2012) (supervisor’s knowledge 

is imputable to employer), aff’d, 535 F. App’x 386 (5th Cir. 2013) (unpublished); Caterpillar, Inc., 

17 BNA OSHC 1731, 1732 (No. 93-373, 1996) (applying agency law’s long-standing principle 

that corporation is charged with knowledge of its agents), aff’d, 122 F.3d 437 (7th Cir. 1997). 

Here, the judge found that the crane operator was TNT’s supervisor at the Georgetown 

worksite and that the alleged violative conditions stemmed solely from his misconduct because he 

created the disassembly plan and operated the crane that contacted the power line.

2 As a result, 

2 TNT argues on review, as it did before the judge, that the crane operator was not a supervisor, 

because he lacked the power to hire, fire, or discipline employees. TNT, however, also concedes 

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the judge concluded that under the Fifth Circuit’s decision in W. G. Yates & Sons Constr. Co. v. 

OSHRC, 459 F.3d 604 (5th Cir. 2006), the Secretary was required to establish that the supervisor’s 

misconduct was foreseeable before the supervisor’s knowledge of his own misconduct could be 

imputed to TNT.

3 In Yates, the court held that “a supervisor’s knowledge of his own malfeasance 

is not imputable to the employer where the employer’s safety policy, training, and discipline are 

sufficient to make the supervisor’s conduct in violation of the policy unforeseeable.” Yates, 459 

F.3d at 608-09 (emphasis in original). According to the judge, the Secretary failed to show that 

TNT’s safety policies, training program, or audit and disciplinary program were deficient, and 

therefore the supervisor’s misconduct was not foreseeable. 

On review, the Secretary argues that the judge erred in applying Yates because all of the 

crew members were engaged in the violative conduct at issue under each citation item and 

therefore it is the supervisor’s actual knowledge of the entire crew’s misconduct that is imputed to 

TNT. In response, TNT defends the judge’s ruling and claims that even if the entire crew was 

found to be engaged in the violative conduct, “it was [the supervisor’s] misconduct . . . which 

undergirded his crew’s actions.” 

We agree with the Secretary. As to Item 1, there is no dispute that the TNT crew 

disassembled the crane without a required protective measure in place to prevent encroachment. 

Contrary to the judge’s finding, the violative conduct occurred once the crew collectively began 

their disassembly work without such a measure in place—it was not the supervisor’s plan for the 

work (which was in fact developed by the crew as a whole) or his operation of the crane. Indeed, 

the cited standard requires that the encroachment prevention measure be in place before 

disassembly begins. 

that this issue is not before the Commission. We note that the record shows the crane operator, 

who himself testified that he was the onsite supervisor, was responsible for ensuring worksite 

safety and assessing the crew’s understanding of work plans and practices. 

3 The Fifth Circuit is a relevant circuit here, as both the worksite and TNT’s headquarters are in 

Texas, which is within the geographical area of the Fifth Circuit. See 29 U.S.C. § 660(a) 

(“Any person adversely affected or aggrieved by an order of the Commission . . . may 

obtain . . . review . . . in any United States court of appeals for the circuit in which the violation is 

alleged to have occurred or where the employer has its principal office, or in the Court of Appeals 

for the District of Columbia Circuit . . . .”); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 

(No. 96-1719, 2000) (Commission generally applies law of the circuit where it is probable a case 

will be appealed). 

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Likewise, Item 2 involves the crew’s collective failure to maintain the required Table A 

clearance during the disassembly process. The driver/rigger testified that he had to “back the 

trailer right up to the back of the crane” but made clear that maintaining the required clearance was 

a team effort: “[A]s the boom came down, we were going to drive the truck forward and lay the 

boom down on top of the trailer so we could work directly off the trailer.” And in positioning the 

truck, the driver/rigger testified that SR1 assisted by serving as spotter because “we [were] 

literally . . . driving at the power line with a trailer behind us.”4 Thus, contrary to the judge’s 

finding, the violative conduct was not limited to the supervisor’s operation of the crane. 

In short, both alleged violations rest on the work activities the entire crew collectively 

engaged in on the day of the incident. Indeed, the crew conducted a job safety analysis (JSA) 

together and then met as a group to discuss the disassembly plan before starting their work, the 

execution of which required all of them to participate. During the JSA, two of the crew members 

expressed concerns with the plan, but after being reassured by the other two crew members that 

the crane had been assembled without incident in the same location, they agreed to proceed. 

Because we find that TNT’s entire crew collectively engaged in the violative conduct 

alleged in each citation item, the supervisor’s knowledge of the other crew members’ conduct is 

imputed to TNT without a showing of foreseeability. This is consistent not only with Commission 

precedent but also that of the Fifth Circuit. In Angel Bros. Enter., Ltd. v. U.S. Dep’t of Labor, 18 

F.4th 827, 832 (5th Cir. 2021), the Fifth Circuit recently rejected the very same argument TNT 

makes here about its supervisor’s role in the crew’s violative conduct and affirmed the 

Commission’s decision to decline extending Yates to a situation involving a foreman who directed 

a subordinate to work in an unprotected excavation: 

Angel Brothers’ argument—that a supervisor’s knowledge cannot be imputed to 

the employer when the supervisor authorizes, or takes some other active role in, a 

4 We note that the cited provision only permits “a dedicated spotter who is in continuous contact 

with the equipment operator.” 29 C.F.R. § 1926.1407(b)(3)(i). Here, the record shows that unlike 

SR1, SR2 did not qualify as a “dedicated spotter” under the crane standard’s definition of that term 

because his sole responsibility was not to “watch the separation between the power line and the 

equipment, load line and load (including rigging and lifting accessories)”—he was also responsible 

for maintaining tension on the load line. 29 C.F.R. § 1926.1401 (“To be considered a dedicated 

spotter, the requirements of § 1926.1428 (Signal person qualifications) must be met and [the 

spotter’s] sole responsibility is to watch the separation between the power line and the equipment, 

load line and load (including rigging and lifting accessories), and ensure through communication 

with the operator that the applicable minimum approach distance is not breached.”). 

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subordinate’s safety violation—finds no support in Yates, agency principles, or in 

other caselaw. Ordinary imputation principles thus apply. [The] [f]oreman[]’s 

knowledge of the crew member’s safety violation is attributable to Angel Brothers. 

Angel Bros. Enter., Ltd., No. 16-0940, 2020 WL 4514841 (OSHRC July 28, 2020). As the court 

explained, whether a supervisor engages in misconduct alongside a subordinate or authorizes a 

subordinate to engage in misconduct, “both of those scenarios involve a subordinate’s violation of 

safety rules so ‘it is reasonable to charge the employer with the supervisor’s knowledge’ of the 

subordinate’s misconduct.” Angel Bros., 18 F.4th at 833 (citing Yates, 459 F.3d at 607 (citation 

omitted)). Accordingly, under both Fifth Circuit and Commission precedent, the supervisor’s 

actual knowledge of the crew’s violative conduct is imputable to TNT without a foreseeability 

showing. We therefore conclude the Secretary has met his burden of proving knowledge and thus 

all the necessary elements of both violations. 

A. Unpreventable Employee Misconduct (UEM) 

As it did before the judge, TNT argues on review that both violations were the result of 

unpreventable employee misconduct. To establish this affirmative defense, an employer is 

required to show that it: “(1) established work rules designed to prevent the violative conditions 

from occurring; (2) adequately communicated those rules to its employees; (3) took steps to 

discover violations of those rules; and (4) effectively enforced the rules when violations were 

discovered.”5 Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). For the 

following reasons, we conclude that TNT has failed to establish the affirmative defense.6 

Item 1 

To prove a UEM defense, the employer must establish it had a work rule that effectively 

implemented the requirements of the standard. Capform, Inc., 16 BNA OSHC 2040, 2043 (No. 

5 The judge did not reach the UEM defense since he vacated both violations. Nonetheless, his 

foreseeability analysis, as well as the parties’ discussions of foreseeability on review, closely tracks 

an analysis of the UEM defense, though the burden of proof falls on TNT, not the Secretary. See 

Calpine Corp., No. 11-1734, 2018 WL 1778958, at *9 (OSHRC Apr. 6, 2018) (employer carries 

evidentiary burden for UEM affirmative defense), aff’d, 744 F. App’x 879 (5th Cir. 2019) 

(unpublished). 

6 On review, the Secretary claims that the company’s UEM defense must fail because the entire 

crew was engaged in the misconduct and TNT only alleged the defense as to its supervisor. We 

disagree with the Secretary’s characterization of TNT’s argument. Although the company focuses 

on its supervisor’s operation of the crane as the misconduct at issue, it does not limit its defense to 

his conduct alone. 

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91-1613, 1994); see also Mosser Constr. Co., 15 BNA OSHC 1408, 1415 (No. 89–1027, 1991) 

(work rule inadequate because it was not “clear enough or broad enough to eliminate employee 

exposure” to the specific violative conditions); Archer-W. Contractors Ltd., 15 BNA OSHC 1013, 

1017 (No. 87-1067, 1991) (work rule inadequate because “even if the employee had complied,” it 

would not “eliminate the [cited] hazard”), aff’d, 978 F.3d 744 (D.C. Cir. 1992). 

We find that TNT failed to establish it had work rules that sufficiently addressed the 

requirements of § 1926.1407(b)(3).7 In Section 13 (“Cranes”) of TNT’s safety policy, a work rule 

addressing “Electrical Hazards and Warnings (1926.1411)”8 states: 

For lines rated 50kV or below, minimum clearance between the lines and any part of 

the crane or load shall be 10 feet. 

. . . 

If it is determined that any part of the equipment, load line or load could get closer than 20 

feet to a power line then at least one of the following measures must be taken: 1) Ensure 

the power lines have been de-energized and visibly grounded, 2) Ensure no part of the 

equipment, load line or load gets closer than 20 feet to the power line, or 3) Determine the 

line’s voltage and minimum approach distance permitted. 

(Emphasis in original). Although this rule’s requirements share some similarities with 

§ 1926.1407, notably absent are the specific requirements of the cited provision, 

§ 1926.1407(b)(3), which expressly mandate that an employer implement an encroachment 

prevention measure prior to crane disassembly to ensure that the 20-foot distance from the power 

line is maintained when any part of the crane or equipment could potentially breach that distance. 

7 Under paragraph (3) of § 1926.1407(b)—titled “Preventing encroachment/electrocution”—the 

employer must implement one of five “additional measures” and is required to select a 

“measure . . . from th[e] list [that is] effective in preventing encroachment.” 29 C.F.R. 

§ 1926.1407(b)(3). The five measures are: (1) use of a dedicated spotter who is in continuous 

contact with the equipment operator (with four listed requirements for the spotter); (2) a proximity 

alarm set to give the operator sufficient warning to prevent encroachment; (3) a device that 

automatically warns the operator when to stop movement, such as a range control warning device, 

that is set to give the operator sufficient warning to prevent encroachment; (4) a device that 

automatically limits range of movement, set to prevent encroachment; and (5) an elevated warning 

line, barricade, or line of signs, in view of the operator, equipped with flags or similar highvisibility markings. Id. § 1926.1407(b)(3)(i)-(v). 

8 As the Secretary points out, TNT’s rule also references a different OSHA provision, which by its 

terms, governs “equipment traveling under or near a power line on a construction site with no 

load.” 29 C.F.R. § 1926.1411(a). For both Items 1 and 2, however, we rest our analysis of TNT’s 

UEM defense primarily on the substance of the company’s rules and how they compare in that 

regard to the cited provisions. 

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Contrary to TNT’s work rule, the cited standard does not permit reliance on an employer’s general 

plan or intent to maintain the 20-foot distance without an affirmative, specific measure in place 

before starting disassembly to prevent encroachment. 

Section 13 of TNT’s safety policy mentions only one of the cited provision’s numerous 

encroachment prevention measures, stating that “[i]f necessary a spotter will be designated to 

monitor the approach distance and alert [the] Operator if that distance becomes compromised.” 

But as the Secretary points out, nowhere does the policy identify when a spotter is “necessary” or 

otherwise required. No other prevention measure required by the standard is mentioned in the 

policy. Under these circumstances, we find that TNT’s work rule does not sufficiently address the 

requirements of § 1926.1407(b)(3) and therefore, the company has not proven the first element of 

its UEM defense. See Lukens Steel Co., 10 BNA OSHC 1115, 1125 n.25 (No. 76-1053, 1981) 

(employer cannot prove UEM defense where it lacked specific work rule governing cited conduct). 

Accordingly, we conclude that the defense has not been established for Item 1.9 

Item 2 

We find that TNT has shown it had work rules to address the requirements of 

§ 1926.1407(d)10 and adequately communicated those rules to its employees, but failed to prove it 

sufficiently monitored for compliance with those rules and effectively enforced them when 

violations were discovered. Regarding the company’s work rules, Section 23 (“Electrical Safety”) 

of its safety policy, under the heading of “Working Near Power Lines (unqualified employees 

only),” states: “For lines rated 50kV or below, minimum clearance between the lines and any 

part of the crane or load shall be 10 feet.” (Emphasis in original). Section 23 also provides: “If 

it is determined that any part of the equipment, load line or load could get closer than 20 feet to a 

9 We note that even if TNT had work rules sufficient to address the provision cited under Item 1, 

its UEM defense would nonetheless fail for the same reasons explained below with respect to Item 

2—TNT has not proven that it adequately monitored for safety violations and effectively enforced 

its rules. 

10 Section 1926.1407(d) requires: 

Assembly/disassembly inside Table A clearance prohibited. No part of a 

crane/derrick, load line, or load (including rigging and lifting accessories), whether 

partially or fully assembled, is allowed closer than the minimum approach distance 

under Table A (see § 1926.1408) to a power line unless the employer has confirmed 

that the utility owner/operator has deenergized and (at the worksite) visibly 

grounded the power line. 

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power line then at least one of the following measures must be taken: Ensure no part of the 

equipment, load line or load gets closer than 20 feet to the power line . . . .” And Section 23 

contains the relevant Table A referenced in § 1926.1407 that sets forth the minimum clearance 

distance for varying voltage ranges. Further, Section 1 (“General Safety”) of TNT’s policy, under 

the heading of “Working Around Cranes and Other Heavy Equipment,” states: “All equipment, 

cranes and booms are to be kept a minimum of at least ten (10) feet from energized power lines.” 

In short, these work rules set forth the minimum approach distance (MAD) that cranes and related 

equipment must maintain from power lines.

11 Therefore, we find that TNT had adequate work 

rules to address the cited standard’s requirements.

12 Cf. Calpine Corp., No. 11-1734, 2018 WL 

1778958, at *8 (OSHRC Apr. 6, 2018) (work rule requiring use of personal fall protection at 

heights greater than four feet “is not equivalent” to cited standard, which requires either railings 

or an attendant at a temporary floor opening on the platform) (citation omitted), aff’d, 774 F. App’x 

879, 884 (5th Cir. 2019) (unpublished). 

In addition, we find that TNT adequately communicated these work rules to its employees. 

According to testimony from TNT’s vice president of health, safety, and environment (VP), the 

company’s safety program, which includes information pertaining to power line safety, is 

communicated to all employees engaged in field operations. For new hires, TNT uses a safety 

orientation script that covers power line safety, including maintaining an appropriate distance 

between a crane and power lines.13 At orientation, employees are also provided with the 

11 Given our reliance on Section 23, as well as Section 1, of TNT’s safety policy as the basis for 

our finding, we need not address the Secretary’s contention that TNT cannot also rely on its work 

rule in Section 13 because that rule (“All equipment is to be operated so the minimum approach 

distance is maintained from exposed energized lines and equipment.”) is not specific to crane 

disassembly. We note, however, that Section 13 contains the same language found in Section 23, 

as discussed above, pertaining to the minimum clearance distance, as well as Table A. 

12 The Secretary argues that TNT’s work rules are deficient because they provide “no guidance to 

employees on how to assemble or disassemble cranes in a way that would ensure that they did not 

inadvertently breach the MAD[.]” But § 1926.1407(d) contains no such guidance or instruction, 

requiring only that the MAD be maintained. 

13 The safety orientation script states: 

Cranes, derricks, and winch trucks must be operated with extreme caution when 

near power lines. Assume all wires are hot. All power lines must be flagged or 

barricaded where there is a danger of contact by mobile equipment. Lines that can 

be reached accidentally must be de-energized or otherwise made safe before any 

work is done. Never operate equipment closer than 10 feet to a power line of 220 

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company’s safety manuals. Both a TNT branch manager and the driver/rigger at the Georgetown 

worksite testified that TNT provides employees with specific training on power line safety.14 

Furthermore, the company’s VP explained that TNT’s branch divisions hold regular safety 

meetings, with the Marshall and San Antonio branches that the crew came from meeting three 

times a week, on varying topics including power line safety and clearance distances. Work crews 

conduct JSAs before starting a job to identify specific hazards on the worksite, as well as steps to 

mitigate or eliminate those hazards, just as the crew did here for the Georgetown project. As for 

the company’s crane operators, TNT’s safety manager testified that all crane operators receive 

training related to power line safety during their on-boarding process. Therefore, we find that TNT 

has shown it sufficiently trained its employees on power line safety. Compare PAR Elec. 

Contractors, Inc., 20 BNA OSHC 1624, 1628 (No. 99-1520, 2004) (“[E]mployers cannot count 

on employees’ common sense, experience, and training by former employers or a union to preclude 

the need for specific instructions.”), with Floyd S. Pike Elec. Contractor, Inc., 6 BNA OSHC 1675, 

1678 (No. 3069, 1978) (finding adequate communication where the employer “issue[d] an 

employee manual to each of its employees,” and the foreman attended a safety meeting two weeks 

before the violations). 

In terms of monitoring for safety compliance, TNT admits that it did not audit or inspect 

the Georgetown worksite, but claims that the judge, in analyzing foreseeability as part of the 

Secretary’s burden to prove knowledge, correctly found this was insignificant considering 

evidence showing that the company “deploys branch managers, project managers, and safety 

professionals to conduct surprise and planned audits of various worksites.” As evidence of its 

monitoring efforts, TNT points to its inspection forms, which include a safety checklist with one 

item addressing power lines, from four safety audits it conducted in May 2016 at other worksites. 

volts or more. Voltages greater than 50,000 volts require more distance. No 

equipment shall be operated over the top of power lines. 

14 In rebuttal, the Secretary points to the supervisor’s testimony that TNT never trained him on 

power line safety as evidence that TNT failed to adequately communicate its work rules to 

employees. But the supervisor, who had twenty-three years of experience as a crane operator, later 

acknowledged that he had received “training relating to working around power lines” from the 

Houston Area Safety Council during his employment with TNT and had worked safely around 

power lines “many times” before the incident. And when asked if he knew it was TNT’s policy to 

stay at least 20 feet away from a power line, he confirmed that he was aware of that policy. 

Therefore, we find the Secretary has failed to rebut TNT’s evidence on training. 

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In response, the Secretary argues that TNT failed to establish it conducted audits with sufficient 

regularity to reasonably ensure compliance with power line safety rules. 

We agree with the Secretary. According to TNT’s VP, it is the company’s practice not to 

send a supervisor to remote worksite locations, like the one in Georgetown, because its employees 

are hired and trained to work with “limited supervision,” though the VP clarified that “doesn’t 

mean absent from supervision.” Further, the VP could not identify how frequently worksite audits 

occurred, particularly how often remote worksites were inspected, stating simply “I can’t tell you 

the number at this time.” Likewise, the Georgetown driver/rigger testified that field safety audits 

occur “all the time,” but he never identified the frequency or location of such audits. While the 

inspection forms TNT submitted into evidence show that the company conducted at least four 

audits over the course of a month at other worksites, the record lacks any context for whether that 

in fact reflects the frequency with which monitoring was performed. Also, none of the four audits 

involved work near overhead power lines and the record does not show whether any of those audits 

occurred at a remote worksite like the one at issue here. See Sw. Bell Tel. Co., 19 BNA OSHC 

1097 (No. 98-1748, 2000) (employer had a safety program and conducted worksite visits, but 

audits were inadequate where there was no evidence that either the program or the worksite visits 

pertained to enforcing the cited provision), aff’d, 277 F. 3d 1374 (5th Cir. 2001). 

Finally, absent sufficient evidence to evaluate the frequency of the company’s audits, we 

disagree with the judge that TNT’s failure to audit its Georgetown worksite was reasonable. The 

installation project was scheduled to take a few days but had stretched out to a week due to rainy 

weather, which made the crew’s work, including the crane disassembly, more challenging. It is 

troubling that none of TNT’s safety professionals visited the worksite to inspect or verify that the 

crew was working safely, particularly given TNT’s claim that neither the crane operator nor any 

other onsite employee served as a supervisor at the worksite. 

In sum, TNT has failed to provide the evidence necessary to evaluate the adequacy of its 

auditing program, such as the frequency with which audits occurred at each worksite and whether 

remote worksites, like the one at issue here, were ever audited at all. Therefore, we find that TNT 

failed to show it took adequate steps to discover violations of its work rules. See Manganas 

Painting Co., 21 BNA OSHC at 1998 (finding monitoring inadequate where supervisors “could 

have seen” employees “work[ing] without respiratory protection in plain view”); see also Am. 

Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997) (“Establishing adequate procedures 

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for monitoring employee conduct for compliance with applicable work rules is a critical part of 

any employer effort to eliminate hazards . . . . It is not enough that an employer has developed an 

exemplary safety program on paper,” because “the proper focus in employee misconduct cases is 

on the effectiveness of the employer's implementation of its safety program.”) (citation omitted). 

Finally, as to enforcement, TNT submitted into evidence its written progressive discipline 

policy and eight disciplinary actions it took in response to violations of company rules, including 

its termination of the supervisor at the Georgetown worksite. The Secretary claims that none of 

these disciplinary actions pertain to crane safety or the work rules TNT claims applied here, but 

we find the supervisor’s termination is clearly one such action. See Precast Serv., Inc., 17 BNA 

OSHC 1454, 1456 (No. 93-2971, 1995) (“Commission precedent does not rule out consideration 

of post-inspection discipline, provided that it is viewed in conjunction with pre-inspection 

discipline.”), aff’d, 106 F.3d 401 (6th Cir. 1997); cf. Thomas Indus. Coatings, Inc., 23 BNA OSHC 

2082, 2088-89 (No. 06-1542, 2012) (evidence of prior discipline for fall protection violations 

established effective enforcement despite employer’s decision to forego discipline for fall 

protection violations at issue in citation). TNT administered the remaining disciplinary actions in 

the record in 2015 and early 2016 to other employees not at issue here, and none of them relate to 

power line safety. 

Thus, other than the disciplinary action taken against the supervisor, TNT has not shown 

that it ever previously disciplined an employee for violating its power line safety rules. As a large 

crane-industry employer with more than 250 employees and numerous offices, we find it highly 

unlikely that no TNT employee had ever previously violated these rules. See Angel Bros., 18 F.4th 

at 832 (rejecting “statistically implausible claim that although OSHA found violations during 80% 

of its five inspections, the company committed no safety violations the other 6,000 or so times it 

performed excavations”). Moreover, the fact that TNT’s supervisor, as well as the rest of the crew, 

were collectively involved in the violative conduct is evidence of lax enforcement and attention to 

crane safety near power lines. See Propellex Corp., 18 BNA OSHC 1677, 1682 (No. 96-0265, 

1999) (enforcement ineffective where all employees were involved in violation, despite evidence 

of post-inspection suspension and eventual termination); Gem Indus., Inc., 17 BNA OSHC 1861, 

1865 (No. 93-1122, 1996) (“Where all the employees participating in a particular activity violate 

an employer’s work rule, the unanimity of such noncomplying conduct suggests ineffective 

enforcement of the work rule.”), aff’d, 149 F.3d 1183 (6th Cir. 1998); Floyd S. Pike Elec. 

12 
 

 

 

 

 

 

 

 

 

 

Contractor, Inc. v. OSHRC, 576 F.2d 72, 77 (5th Cir. 1978) (“[T]he fact that a foreman would feel 

free to breach a company safety policy is strong evidence that implementation of the policy was 

lax.”). Therefore, we find that TNT failed to establish it enforced its work rules effectively when 

violations were discovered. See Cooper/T. Smith Corp. d/b/a Blakeley Boatworks, Inc., No. 16-

1533, 2020 WL 1692541, at *2-3 (OSHRC Apr. 1, 2020) (finding ineffective enforcement where 

evidence was lacking as to whether employer had sufficiently enforced its progressive disciplinary 

policy, despite employer’s submission of ten disciplinary records not relevant to the cited conduct). 

For all these reasons, we reject TNT’s UEM defense for both Item 1 and Item 2. 

Accordingly, we reverse the judge, affirm Serious Citation 1, Item 1 and Item 2, and assess 

the $24,942 total proposed penalty.15 

SO ORDERED. 

_/s/_____________________________ 

Cynthia L. Attwood 

Chairman 

_/s/_____________________________ 

Amanda Wood Laihow 

Dated: June 2, 2022 Commissioner 

15 The Secretary proposed a penalty of $12,471 for each citation item and characterized both items 

as serious. See 29 U.S.C. § 666(k) (violation characterized as serious when there is “substantial 

probability that death or serious physical harm could result” from the hazardous condition at issue). 

TNT does not dispute the characterization or the proposed penalty amounts on review. Therefore, 

we affirm both items as serious and assess the total proposed penalty. 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 neither were in dispute). 

13 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, DOCKET NO. 16-1587 

v. 

TNT CRANE & RIGGING, INC., 

Respondent. 

Appearances: 

Christopher Lopez-Loftis, Esq. U.S. Department of Labor, Office of the Solicitor, Dallas, Texas 

For Complainant 

Collin G. Warren, Esq. & Travis W. Vance, Esq., Fisher & Phillips, LLP, Houston, Texas 

For Respondent16 

Before: Administrative Law Judge Brian A. Duncan 

DECISION AND ORDER ON REMAND 

Procedural History 

This matter is before the undersigned on remand from the Occupational Safety and Health 

Review Commission. This Court originally determined, on September 14, 2018, that Complainant 

failed to prove the cited regulations in the above-captioned matter applied to the work performed 

by Respondent’s crew at the time of a crane accident which seriously injured an employee. On 

March 27, 2020, the Commission reversed and determined the cited regulations did apply to the 

work being performed. In light of the Commission’s decision, this Court must now determine 

whether Complainant proved the remaining prima facie elements of Respondent’s alleged 

16. Mr. Warren, who appeared at trial, apparently did not participate in the supplemental post-trial brief, 

which was signed by Mr. Vance and Pamela D. Williams from Fisher & Phillips’ Houston Office. Since Mr. Warren 

participated in the trial, his name will remain in the caption, but the Court thought it appropriate to note the change. 
 

 

 

 

 

violations of 29 C.F.R. § 1926.1407(b)(3) and 29 C.F.R. § 1926.1407(d). Ultimately, as discussed 

below, this Court finds Complainant failed to prove a violation of the cited standards because it 

did not establish that the violative conduct of the crane operator was foreseeable. 

On May 15, 2016, one of Respondent’s employees was seriously injured while holding 

onto a crane hoist cable as the crane operator swung it into an adjacent power line. The injury was 

reported to Complainant, who dispatched Compliance Safety and Health Officer (“CSHO”) Darren 

Beck to conduct an inspection. Based on what he discovered, CSHO Beck recommended, and 

Complainant issued to Respondent, a Citation and Notification of Penalty (“Citation”), which 

alleged two serious violations of the regulations found at 29 C.F.R. § 1926.1407. Complainant 

proposed a total penalty of $24,942 for the violations. Respondent timely contested the Citation, 

which brought the matter before the Commission. 

This Court did not conduct any further evidentiary hearings upon remand. Rather, the 

Court continues to rely on the testimony and evidence received into the record during the trial on 

December 20–21, 2017. However, on July 10, 2020, both parties submitted supplemental posttrial briefs for the Court’s consideration. 

Jurisdiction & Stipulations 

The parties stipulated the Commission has jurisdiction over this proceeding pursuant to 

Section 10(c) of the Act. (Tr. 18). The parties also stipulated that, at all times relevant to this 

proceeding, Respondent was an employer engaged in a business and industry affecting interstate 

commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Tr. 18– 

19). See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). 

2 
 

 

 

 

 

Factual Background 

On May 15, 2016, Respondent’s employees Jeff Benson and Mark Ryan were completing 

a week-long project to install new antennas on top of a communications tower in Georgetown, 

Texas. (Tr. 58, 313, 529). Mr. Benson, Respondent’s Crane Operator, was operating a Grove 

GMK 5275 all-terrain 275-ton mobile crane to perform the work. (Tr. 320; Exs. C-16, C-17). 

About 9:00 a.m. that day, employees J.L. and Freddie Ray, who were detailed from Respondent’s 

San Antonio office, arrived at the worksite to assist in disassembling the mobile crane once the job 

was completed. (Tr. 202–203, 254). 

Once finished, the crew needed to dismantle the crane and re-load it back on the semi-truck 

trailer used to transport it. (Tr. 96, 254). Before starting that process, Benson created a job safety 

analysis (JSA) and discussed with the crew his plan for lowering and disassembling the boom of 

the crane, including the need to avoid the nearby power lines. (Tr. 203–206; Ex. R-4). Though 

J.L. and Mr. Ray expressed reservations about the plan, Mr. Benson informed them he had 

assembled the crane in the exact location where he proposed disassembling the crane, which 

included a buffer zone of 20 feet from the power line.17 (Tr. 214). Based on the plan Benson 

created, and his representation that the plan was safe, J.L. and Mr. Ray agreed. (Tr. 216). 

On this particular crane model, the operator’s cabin sits on a turntable on the truck, which 

allows it to rotate left and right. (Tr. 207, 320). Affixed to the turntable is a telescoping boom, 

which extends and retracts by way of a hydraulic cylinder. (Tr. 207; Ex. C-17). The disassembly 

plan called for Mr. Benson to first reposition the crane near the semi-truck trailer; then to lower 

the boom while J.L. removed the block from the becket on the end of the hoist line. (Tr. 88). The 

17. The power line voltage was 14,400 volts, requiring a minimum encroachment distance of 10 feet per 

Table A at 29 C.F.R. §1926.1408. Respondent’s employees testified that they tried to implement a larger buffer 

distance. (Tr. 259). 

3 
 

 

 

 

 

 

 

 

block is the end mechanism on a crane, where rigging is attached to pick up whatever items the 

crane is lifting. (Tr. 199, 328; Ex. C-16 at TNT 102, C-17 at DOL 187). The becket is a metal 

connection device at the end of the hoist line, where the block is connected. (Tr. 209, 328). Then, 

while J.L. physically held the becket to keep the hoist line taught, Benson would reel the line onto 

the coil.18 (Tr. 209, 211, 315). Mr. Ray worked with Mr. Ryan to position the flatbed truck for 

Benson to lay down the boom. (Tr. 210–11). 

After the block was removed and the hoist line retracted, the plan was to further lower the 

boom, use a separate helper crane to begin taking off sections of the jib, and place them on the 

trailer. (Tr. 227, 262, 315, 486-487, 553; Ex. R-4). However, despite this disassembly plan, the 

crew never progressed past the removal of the block and the beginning of the retraction of the hoist 

line. As Benson was lowering the boom and retracting the hoist line, he contacted a nearby power 

line, sending 14,000 volts of electricity through the hoist line to J.L. (Tr. 108, 211–212). Mr. Ray, 

who was in the cab of the semi-truck, started receiving confusing signals from Mr. Ryan and exited 

the cab. (Tr. 211–212). As he got out of the truck to inquire, Mr. Ray saw a flash at the base of 

the crane, ran over to the other side, and found J.L., who was laying on the ground. (Tr. 211–212). 

As he ran over to assist J.L., Mr. Ray noticed the tip of the boom was over the power line. (Tr. 

213). 

After emergency responders arrived and had the original crew move the crane and other 

equipment for access purposes, the entire crew was sent home. (Tr. 268). Respondent had a 

different crew come to the site a day later to disassemble the crane and remove it from the property. 

(Tr. 381). As a result of the accident, J.L. experienced a severe electrical shock, serious injuries, 

18. Mr. Ray testified that removing the block was an unnecessary step in the process that actually increased 

the likelihood of an accident. The block in question weighed nearly 500 pounds, which would have maintained 

adequate tension on the hoist line while it was retracted, eliminating the need for J.L. to hold the line. (Tr. 231–233). 

4 
and hospitalization. (Tr. 213, 379–80). Benson was not injured. Respondent reported the accident 

and employee hospitalization to OSHA within 24 hours, which prompted the investigation. 

By the time CSHO Beck arrived at the worksite, the equipment and parties involved in the 

incident were no longer there. (Tr. 57). He also testified that he was unable to enter the locked 

property. (Tr. 138). Therefore, instead of performing an inspection at the location of the accident, 

CSHO Beck traveled to Respondent’s Houston, TX office, to interview witnesses; and to 

Respondent’s Marshall, TX yard, where the crane was being stored. (Tr. 57). 

In addition to interview statements, CSHO Beck took photos of a not-to-scale model of the 

worksite prepared by Mr. Ray and a member of Respondent’s safety team, and took photographs 

of the crane as it set in the Marshall, TX yard. (Tr. 95, 243-44; Ex. C-21). None of the photographs 

entered into the record accurately reflect the condition, configuration, or position of the crane at 

the time of the accident. (Exs. C-16, C-17). Based on his investigation, CSHO Beck concluded 

that Respondent failed to comply with two regulatory requirements for crane disassembly, and 

OSHA issued the two violations at issue in this case. 

Discussion 

To establish a violation of an OSHA standard, Complainant must prove, by a 

preponderance of the evidence, that: (1) the cited regulation applied to the facts; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees were exposed or had access 

to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge 

of the violative condition (i.e., the employer knew, or with the exercise of reasonable diligence 

could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994). 

5 
 

 

 

The Commission determined that the regulations cited in Citation 1, Items 1 and 2, applied, 

so this decision only addresses the remaining elements of Complainant’s prima facie case. See 

TNT Crane & Rigging, 2020 WL 1657789 (No. 16-1587, 2020). 

Citation 1, Item 1 

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1926.1407(b)(3): Additional measures were not in place to prevent 

encroachment of power lines. 

On or about May 15, 2016, the employer did not use at least one of the measures 

required to prevent encroachment or contact with the power lines while 

disassembling the crane, exposed employees to the hazard of electrical shock. 

Note: The additional measures are: 

i) Use a dedicated spotter who is in continuous contact with the equipment 

operator. 

ii) A proximity alarm set to give the operator sufficient warning to prevent 

encroachment. 

iii) A device that automatically warns the operator when to stop movement, 

such as a range control warning device. 

iv) A device that automatically limits range of movement, set to prevent 

encroachment. 

v) An elevated warning line, barricade, line of signs, in view of the operator, 

equipped with flags or similar high-visibility markings. 

See Citation and Notification of Penalty at 6. 

The Standard Was Violated 

Complainant contends Respondent violated 1926.1407(b)(3) in three respects: (1) as 

evidenced by the accident, the measures employed by Respondent to prevent encroachment were 

ineffective; (2) J.L. was not a dedicated spotter as defined by the regulations; and (3) Respondent 

failed to employ any “additional measures”. In response, Respondent argues it was not required 

to employ additional measures because it determined no part of the crane would come within 20 

feet of the power lines, in compliance with 1926.1407(a). The Court finds Respondent 

6 
 

 

 

 

 

misconstrued its obligation under 1926.1407(a), as well as its supplemental/complementary 

obligation under 1926.1407(b). 

According to 1926.1407(a), “Before assembling or disassembling equipment, the employer 

must determine if any part of the equipment, load line, or load (including rigging and lifting 

accessories) could get, in the direction or area of assembly/disassembly, closer than 20 feet to a 

power line during the assembly/disassembly process.” 29 C.F.R. § 1926.1407(a) (emphasis added). 

If such a determination is made, Respondent must implement the requirements of Option 1, 2, or 

3 of the section. Id. Option 1 was not at issue here because the line remained energized, so 

Respondent was bound by Options 2 or 3. Id. As such, Respondent was also bound by the 

requirements of paragraph (b), which was cited by Complainant. See id. §§ 1926.1407(a)(2), (3). 

Respondent argues that no part of the crane would have come within 20 feet of the power 

line insofar as its plan was followed. The problem for Respondent, however, has nothing to do 

with the adequacy of its plan. According to the plain language of the standard, the employer must 

determine if any part of the equipment could get closer than 20 feet; not whether the employer has 

a plan to prevent such encroachment. Indeed, the whole point of paragraph (b) is to employ 

administrative or engineering controls that will prevent accidental encroachment and human error. 

See id. § 1926.1407(b). If there was no possibility of contact, there would be no need for a spotter, 

electronic warning system, range limiter, or barricade. Id. 

The preamble to the final rule illustrates the contours of a proper assessment, which 

requires the employer to consider “the area under and around the boom’s path as it is lowered” and 

“other areas radiating from the initial area, both horizontally and vertically, that will be occupied 

as the equipment components are added, removed, raised, and lowered during the 

7 
 

 

 

 

 

 

 

 

 

assembly/disassembly process.” Cranes and Derricks in Construction, 75 Fed. Reg. 47906, 47946 

(August 9, 2010). The following example provides further clarity: 

As stated in the preamble to the proposed rule, “direction” includes the direction 

that, for example, the boom will move as it rises into the air after the boom has been 

assembled on the ground. For example, the boom, when fully assembled on the 

ground, may be more than 20 feet from a power line. However, when raising it from 

the ground, it may get closer than 20 feet. Accordingly, under this language, the 

“direction” that the boom will travel as it is raised must also be evaluated for 

proximity to power lines. 

Id. Based on this understanding, the Court finds Respondent’s argument incorrectly interprets 

1926.1407(a), concluding that the secondary protections in 1926.1407(b) did not apply. It was 

clearly possible for equipment to approach/contact the power line within the 20-foot distance 

boundary, because that actually occurred. In fact, even without the unfortunate accident, the record 

clearly established that the crane equipment could have easily come into contact with the power 

line. Therefore, Respondent’s argument that the secondary/complementary protections of 

1926.1407(b) were not applicable is rejected. 

Despite Respondent’s current argument on that point, the record establishes that Benson 

and his crew actually considered secondary precautions to ensure encroachment within 20 feet 

would not occur. Specifically, Mr. Ray and Mr. Benson both testified J.L. was serving as a spotter. 

(Tr. 340, 254). Considering the power line’s proximity to the crane, both J.L. and Mr. Ray 

expressed reservations about the plan to disassemble the crane in the location suggested by Mr. 

Benson. (Tr. 216). Thus, at the very least, the crew acted as if encroachment could happen. This 

is also supported by Respondent’s expert report, which indicated potential minimum clearances of 

14.6- to 16-feet, depending on where the jib was set on the trailer. (Ex. R-36 at TNT000409). 

Thus, the Court finds Respondent was required to comply with 1926.1407(b)(3). 

In order to comply with 1926.1407(b)(3), Respondent needed to implement one of the five 

additional options listed under the standard (and reproduced above). The only option mentioned at 

8 
 

trial was (i), which requires a dedicated spotter.19 Any argument that J.L., who was holding the 

becket, was the dedicated spotter for the crane must fail. A dedicated spotter’s “sole responsibility 

is to watch the separation between the power line and the equipment, load line and load (including 

rigging and lifting accessories), and ensure through communication with the operator that the 

applicable minimum approach distance is not breached.” 29 C.F.R. § 1926.1401. J.L. did not have 

the sole responsibility of watching equipment; he was also responsible for maintaining tension on 

the hoist line. This additional responsibility interfered with his ability to communicate with the 

operator, as evidenced by Ray’s testimony that spotters/riggers use hand signals to communicate 

and Benson’s testimony that he could not hear J.L. yelling at him to “swing” the boom away from 

the power line. (Tr. 200, 331). In fact, despite Ray’s and Benson’s post-accident assertions, J.L. 

and Mr. Ryan told CSHO Beck there was no dedicated spotter at the time of the accident. (C-20 at 

DOL 00204, 00207). 

Based on the foregoing, the Court finds Respondent violated the terms of the standard 

because it failed to employ additional measures when the crane and its associated equipment could 

get within 20 feet of an energized power line. 

Citation 1, Item 2 

Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows: 

29 CFR 1926.1407(d): Assembly/disassembly inside Table A clearance prohibited. 

Part of a crane/derrick, load line, or load (including rigging and lifting accessories), 

whether partially or fully assembled, was closer than the minimum approach 

distance under Table A (see 1926.1408) to a power line. 

On or about May 15, 2016, employees attempted to disassemble the 275-ton crane 

to place the boom on a flatbed truck parked below a 14,400 volt energized power 

19. Benson testified the crew did not employ any of the other options. (Tr. 332). 

9 
 

 

 

 

 

 

 

 

 

line. The load line came in contact with the power line, exposing employees to the 

hazards of electrical shock. 

Note: Disassembling cranes under power lines is prohibited under 1926.1407(c) of 

this section. 

See Citation and Notification of Penalty at 7. 

The Standard Was Violated 

There is no serious dispute about whether this standard was violated.20 The requirements 

of 1926.1407(d) are straightforward: no part of a crane, load line, or load is allowed closer than 

the minimum approach distance under Table A unless the employer has confirmed the power line 

has been deenergized and grounded. 29 C.F.R. § 1926.1407(d). The power line at issue was neither 

deenergized nor grounded. Thus, Respondent had to ensure no part of the crane came within the 

distance provided in Table A. Unfortunately for J.L., as Benson lowered the boom, he failed to 

swing it over according to the agreed-upon plan and contacted the power line with the hoist line 

of the crane.21 (Tr. 93, ; Ex. R-36; C-16 at DOL00182). Because Benson contacted the line as he 

was booming down, he violated the minimum clearance distance mandated by Table A.22 

Accordingly, the Court finds Respondent violated the terms of the standard. 

Respondent’s Employees Were Exposed to a Hazard 

For Complainant to establish this element, he must show Respondent’s employees were 

exposed to, or had the potential to be exposed to, the zone of danger. See Gilles & Cotting, Inc., 3 

BNA OSHC 2002, 2003 (No. 504, 1976). There is no question J.L. and Benson occupied the zone 

of danger, as they were both in physical contact with the equipment that contacted the power line. 

20. Respondent does not address the requirements of 1926.1407(d) in either its original or supplemental posttrial brief. 21. Benson insisted the hoist line did not touch the power line; however, Respondent’s expert identified the 

point on the hoist line where contact was made. (Tr. 582-583). 22. Respondent was working near a 14-kilovolt line, which requires a minimum clearance distance of 10 feet. 

See 29 C.F.R. § 1926.1408, Table A. 

10 
 

 

 

 

Respondent’s employees were about to disassemble the crane in an area where portions of 

the crane could have (and did) contact the power lines. The process of disassembly required 

Benson to first swing the boom of the crane 90 degrees from the position it was in after removing 

the block. (Ex. R-4; R-36 at TNT000408-409). By swinging the boom 90 degrees to the right, the 

boom was supposed to point toward an adjacent field, away from the power line. (Id.). The power 

line was located towards the rear of the crane truck and in front of the flatbed where Benson was 

supposed to lay down the jib for removal. (Tr. 206). After that, Benson was supposed to “boom 

down” the crane to its lowest possible point and then swing it back over the flatbed truck for 

disassembly. (Tr. 206). Mr. Ray drove the flatbed and was directed by Mr. Ryan, who positioned 

himself at the back of the flatbed to assess where the truck needed to be parked to receive the jib. 

(Tr. 206). 

Given that the boom and cable were located directly overhead of Mr. Ray and Mr. Ryan 

when the cable contacted the power line, the Court finds they were also within the zone of danger. 

According to Respondent’s expert, the flatbed was roughly 10 feet from the power line, and the 

boom, had it been set down, would have been roughly 16 feet away. (Ex. R-36 at TNT000409). 

This was clearly within the 20-foot buffer zone identified in 1926.1407(a), which required the use 

of additional protective measures. According to Benson, the crane was not equipped with a 

warning/shutdown system, and both J.L. and Mr. Ryan told CSHO Beck the crew did not have, 

nor did they discuss, the use of a dedicated spotter. (Tr. 331; Ex. C-20). In light of these conditions, 

and Respondent’s failure to properly address them, the Court finds all crew members were exposed 

to the hazard of electric shock as a result of the violative conditions described in Citation 1, Items 

1 and 2. 

11 
 

 

 

 

 

 

Complainant Failed to Prove Respondent Had Knowledge of the Condition 

Complainant contends Respondent knew or could have known of the above-discussed 

violations under two theories: (1) Benson was a supervisor, and knowledge should be imputed to 

Respondent through him according to Commission precedent; and (2) Benson’s conduct was 

foreseeable due Respondent’s failure to train, supervise, and discipline, and thus imputable under 

Fifth Circuit precedent.23 Respondent, on the other hand, contends Benson was not a supervisor, 

because he was not designated as such by Respondent, nor did he exercise responsibilities 

consistent with that role. Further, Respondent argues Benson was adequately trained and 

supervised such that his actions on the day of the accident were not foreseeable. While the Court 

finds Benson was a supervisor for the purposes of the Act, it also finds Complainant failed to prove 

his actions were foreseeable. Thus, the Court finds Complainant failed to establish that Benson’s 

knowledge of the violations should be imputed to Respondent. 

Benson Was Acting as a Supervisor 

Respondent disputes Complainant’s determination that Benson was acting as a supervisor 

at the time of the accident. Specifically, Respondent argues its crane operators are not designated 

as supervisors; do not have the ability to hire, fire, or discipline; and that Benson was not treated 

as a supervisor by CSHO Beck during the inspection. According to the Commission, neither 

formal titles nor the ability to hire and fire control the determination of whether an employee is 

acting as a supervisor. See Rawson Contractors, 20 BNA OSHC 1078 (No. 99-0018, 2003). 

Instead, supervisory status “can be established on the basis of other indicia of authority that the 

employer has empowered a foreman or other employee to exercise on its behalf.” Id. Such indicia 

23. Because this case took place within the boundaries of the Fifth Circuit, the Court is obliged to apply Fifth 

Circuit precedent. See Farrens Tree Surgeons, Inc., 15 BNA OSHC 1793, 1794–95 (No. 90-998, 1992) (holding that 

Commission typically applies precedent of circuit to which a case is “highly probable” to be appealed, even though it 

may differ from Commission precedent). 

12 
 

 

 

 

 

include supervising work activities, taking all necessary steps to complete assignments, and 

ensuring work is performed in a safe manner. Id. See also Kern Bros. Tree Service, 18 BNA OSHC 

2064 (No. 96-1719, 2000) (knowledge of crew leader who was responsible for seeing that the work 

was done safely and properly was imputed to employer even though he had no authority to actually 

discipline an employee). Supervisory status can also be delegated, or exercised, on a temporary 

basis. Id. 

According to the crane operator job description, even though an operator has no “direct 

reports”, his duties include “ensur[ing] safety first, along with safe lifting of the load”; 

“determin[ing] signal person understands and performs proper hand signals”; and completing field 

tickets to be turned into the branch office, including determinations of additional charges to clients. 

(Ex. R-11 at TNT000170, 171). According to Troy Pierce, Respondent’s VP of Health, Safety, 

and Environment (HSE), although crane operators are not officially designated supervisors, they 

can report employees to dispatch or branch managers to have the non-compliant employee 

removed from a worksite. (Tr. 387). This is a marked difference from riggers and rigger drivers, 

who are supposed to “assist the crane operator on job tasks during the operation of the crane . . . .” 

(Ex. R-11 at TNT000174). The fact that operators are expected to ensure worksite safety and 

assess employee understanding of work plans and practices indicates some delegation of 

supervisory authority, especially in the absence of other supervisory personnel. 

As it relates to this worksite, Benson created the work plan and job safety analysis (JSA), 

and dictated to the crew how the disassembly work would be carried out. (Tr. 214–17). 

Additionally, Benson himself came to understand he was acting as the on-site supervisor (Tr. 317, 

336). While that fact alone is not conclusive, it is consistent with his actions, the crew’s actions, 

and the delegation of crane operator authority in Respondent’s policies described above. 

13 
 

 

 

 

 

Accordingly, the Court finds Benson was serving as a supervisor on this jobsite for the purposes 

of the Act. 

Foreseeability Under Yates 

For Complainant to prevail, he must prove that Benson’s knowledge of the violative 

conditions should be imputed to Respondent. See Tampa Shipyards, Inc., 15 BNA OSHC 1533 

(No. 86-360 et. al., 1992) (holding actual or constructive knowledge of a supervisor can be imputed 

to the employer). According to Commission precedent, Complainant establishes this element by 

showing a supervisor had actual or constructive knowledge of a subordinate’s, or in this case, his 

own conduct. See A.P. O’Horo Co., 14 BNA OSHC 2004, 2007 (No. 85–369, 1991); Deep S. 

Crane & Rigging Co., 23 BNA OSHC 2099, 2102 (No. 09-0240, 2012) (noting that under 

Commission precedent, a supervisor's knowledge of his own misconduct is imputed to the 

employer). In the Fifth Circuit, however, Complainant must show the supervisor’s misconduct 

was foreseeable. See W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006) 

(finding Commission precedent imputing supervisor’s knowledge of his own misconduct 

impermissibly shifts burden of proof away from Secretary and, therefore, constitutes strict 

liability). To prove a supervisor’s misconduct was foreseeable, Complainant must show the 

employer’s safety policies, training, and disciplinary practices were deficient. Id. at 608–609). The 

Court finds Complainant failed to make such a showing. 

First, Complainant attempts to argue Yates does not apply to the circumstances of this case. 

In Yates, the Fifth Circuit noted it did not intend to alter the analysis of the “ordinary case”, wherein 

a supervisor’s knowledge of his subordinate’s misconduct is imputable to the employer without 

further analysis (at which point the burden shifts to the employer to prove unpreventable employee 

misconduct). See id. at n.7; see also Calpine Corp. v. OSHRC, 774 Fed. App’x. 879 (5th Cir. 2019) 

14 
 

 

 

 

(unpublished) (reiterating the rule in the ordinary case but also noting hazardous condition did not 

arise from supervisory misconduct). Refining that point, the Eleventh Circuit held the knowledge 

of a supervisor, who is both engaged in misconduct and observes a subordinate employee engaged 

in the same misconduct, is imputable to the employer because it constitutes the “ordinary case” 

discussed in footnote 7 of Yates. See Quinlan d/b/a Quinlan Enters. v. Secretary, U.S. Department 

of Labor, 812 F.3d 832 (11th Cir. 2016). It is this distinction Complainant latches onto in support 

of its argument that Yates does not apply. This Court disagrees for two reasons. 

First, the Fifth Circuit did not discuss the proper analysis for when both supervisor and 

subordinate are simultaneously engaged in the same misconduct. Indeed, as noted by the Eleventh 

Circuit in Quinlan, the facts in Yates were different than those before the Eleventh Circuit: the 

supervisor in Quinlan was engaged in the same misconduct as his subordinate, whereas the 

supervisor was engaged in different misconduct than his subordinates in Yates. As noted by the 

Quinlan court, the Fourth Circuit was confronted with a situation where the supervisor and 

subordinate were both engaged in the same misconduct and nonetheless held imputation of the 

supervisor’s knowledge of his misconduct in that circumstance was improper without further 

analysis. See Quinlan, 812 F.3d at 840 (citing L.R. Willson & Sons, Inc. v. OSHRC, 134 F.3d 1235 

(4th Cir.1998)). Thus, this Court refuses to extend the rationale of the Eleventh Circuit to the clear 

rule laid down by the Fifth Circuit in Yates. 

Second, regardless of whether the Fifth Circuit would adopt the Eleventh Circuit’s 

rationale, this Court does not find it applicable to this set of facts. Benson, acting as a supervisor, 

planned the process of disassembly and dictated to the other employees how it would be carried 

out, from where the crane and trucks would be located to having J.L. hold the becket at the end of 

the hoist cable while he moved the boom into position. Subsequently, it was Benson who failed to 

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comply with the plan when he lowered the boom before swinging it over the adjacent field, which 

sent the hoist cable into the power lines. As noted in Respondent’s own position description, the 

operator is responsible for “ensur[ing] safety first, along with safe lifting of the load”, which 

presumably includes identifying additional protective measures when working within 20 feet of 

an energized power line. Likewise, the only person capable of preventing encroachment into the 

minimum approach distance was the crane operator, Benson, who was at the controls of the crane 

and should have been paying attention to his signal man. As such, the only individual engaged in 

violative conduct here was Benson. Complainant established that other employees were exposed 

to the hazard caused by the violation, but presented no evidence to suggest any other employee 

was engaged in the violative conduct identified in the Citation. Complainant’s argument that Yates 

is not applicable to this case is rejected. 

Benson’s Actions Were Not Foreseeable 

As noted above, Complainant must show a deficiency in Respondent’s safety policy, 

training, or discipline in order to prove Benson’s actions were foreseeable. Complainant argues 

Respondent’s safety program is little more than a paper program, which says more than it actually 

does. Specifically, Complainant argues: (1) Respondent’s rules are nothing more than a rote 

reproduction of the OSHA standards; (2) Respondent failed to provide Benson with appropriate 

training; and (3) Respondent did not appropriately audit worksite practices or punish 

transgressions when identified. Respondent contends it had a robust written safety program that is 

communicated through weekly and periodic trainings and is enforced through workplace audits 

and disciplinary action. Based on the evidence presented, the Court finds Complainant failed to 

prove Respondent’s safety policies, training program, or disciplinary actions were deficient. 

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Respondent’s safety policy is extensive and has rules that specifically govern the conduct 

identified in the Citation. The policy tracks the language of the standard’s requirements but does 

not merely reproduce the standards themselves—it is specific so as to guide employee behavior. 

See Mosser Construction Co., 15 BNA OSHC 1408, 1415 (No. 89-1027, 1991) (holding a work 

rule must be clear enough to eliminate employee exposure to the hazard). Specifically, it indicates 

what the minimum approach distance is for power lines, requires supplemental requirements for 

any activities occurring within 20 feet, and identifies what those requirements are. (Ex. R-2 at 

TNT000132). Complainant failed to present sufficient evidence for this Court to conclude that 

Respondent’s rules governing crane operation near power lines were insufficient. 

Regarding training, Complainant argues Respondent failed to show it provided Benson 

with training that covered operating a crane near power lines. For the most part, Complainant relies 

on Benson’s testimony, wherein he claimed he did not receive such training from Respondent. 

This line of argument is problematic for two reasons: (1) it does not properly characterize Benson’s 

testimony; and (2) Respondent’s reliance on third-party training does not translate to a failure to 

meet its obligation to ensure Benson was properly trained. 

Benson initially testified he did not receive high power line training from TNT and that he 

never received a safety manual at any point. (Tr. 343). On the very next page of the transcript, 

however, Benson clarified he received power line training while he worked for TNT, albeit through 

the Houston Area Safety Council. (Tr. 344; Ex. R-41 at TNT000777). He also noted he had 

received similar training through his previous employer and understood and was able to comply 

with TNT’s policy, which requires maintaining a 20-foot distance from power lines while 

operating a crane. (Tr. 345). Benson was also an actively certified NCCCO crane operator. (Tr. 

341). 

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In addition, subsequent testimony by four company representatives contradicted Benson’s 

testimony that he did not receive training from Respondent. Mr. Pierce testified Benson received 

company handbooks, including safety manuals, during his orientation and provided evidence to 

that effect. (Tr. 407; Ex. R-47 at TNT000233). Further, Pierce testified Respondent also tested the 

competencies of all new employees to ensure they possessed the skills and qualifications they 

claimed to have. (Tr. 412-414). This included a field test on a crane in the yard, as well as a written 

test, both of which had to be satisfactorily completed prior to operating a crane in the field. (Id.; 

Ex. R-2) Jamie Arnold, the Marshall branch manager, testified that he verified Benson’s 

certifications, including the training he received through the safety council, which covered power 

line training. (Tr. 589). Mr. Arnold also testified he was familiar with Benson’s skills and abilities 

before he started with Respondent. (Tr. 588). Third, Jeff Bonner testified he conducted the onboard 

training of Benson, which included power line safety and encroachment distances. (Tr. 596). 

Though Complainant challenged his testimony, based on his inability to recall the time of such 

training, Bonner specifically recalled training Benson, which the Court found credible. (Tr. 597-

598). Finally, Mr. Ray also testified that Respondent provides employees with power line training. 

It was one of the first sessions he received “because we’re around power lines so much.” (Tr. 248). 

The Court is convinced the foregoing illustrates Respondent met its obligation to ensure 

Benson was properly trained and understood company policy regarding operating a crane near 

power lines. Not only did Respondent verify Benson’s prior experience and training through 

testing, it also ensured Benson continued to receive training either through weekly training 

presentations or through a verified third-party provider. (Tr. 589). See LJC Dismantling Corp., 24 

BNA OSHC 1478 (No. 08-1318, 2014) (holding that adequacy of instruction, training, and 

supervision should be assessed in light of prior work history and training and that it is Secretary’s 

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burden to show deficiency and additional training that would be required); S.J. Louis Construction 

of Texas, 25 BNA OSHC 1892 (No. 12-1045, 2016) (same). Complainant did not prove 

Respondent failed to ensure adequate instruction or communicate its safety policy regarding 

operating a crane near power lines. 

Finally, Complainant contends Respondent’s audit and disciplinary program were also 

deficient. Complainant’s evidence in this regard is equally scant. Specifically, Complainant 

argues that because Respondent failed to audit the worksite where the accident happened, its audit 

program was deficient. Mr. Pierce testified Respondent deploys branch managers, project 

managers, and safety professionals to conduct surprise and planned audits of various worksites. 

(Tr. 416). He also introduced samples of audits performed at those worksites. (Ex. R-49). Mr. 

Ray, who works in the field, testified that jobsite audits occurred regularly. (Tr. 266-67). See also 

S.J. Louis, 25 BNA OSHC 1892, supra. (program was sufficient which consisted of a full-time 

safety director and five field safety supervisors that conducted random and scheduled field safety 

audits). Simply because one worksite was not audited over the course of a one-week project (that 

was originally scheduled to be completed in one day), does not mean the audit program, as a whole, 

was deficient. Without more, the Court finds Complainant’s evidence failed to establish the 

insufficiency of Respondent’s audit program. 

Similarly, the Court finds Complainant failed to prove Respondent’s disciplinary program 

was insufficient. Again, Complainant relies on the lack of audits at this particular worksite as its 

sole evidence that Respondent’s disciplinary program was insufficient. Absent a specific reason 

why Respondent should have sent an audit team to review Benson’s work performance, the Court 

finds this line of argument unpersuasive. Respondent submitted a sample of disciplinary actions 

taken in response to violations of company rules, including Benson’s ultimate termination. (Ex. R19 
 

 

 

 

 

 

 

 

27, R-29). These actions are consistent with the progressive disciplinary policy laid out in 

Respondent’s orientation packet. (Ex. R-12 at TNT00055). 

Based on the foregoing, the Court finds Complainant failed to prove Benson’s violative 

conduct was foreseeable. Accordingly, the Court finds it is improper to impute Benson’s 

knowledge of the violative conditions to Respondent. 

Conclusion 

Complainant failed to establish that Respondent knew, or with the exercise of reasonable 

diligence, should have known of the violative conditions cited in Citation 1, Items 1 and 2. 

Complainant failed to prove that Respondent should have foreseen Benson would violate the cited 

regulations, and company policy, by failing to maintain adequate clearance from overhead power 

lines as the crew began the disassembly process. Accordingly, Citation 1, Items 1 and 2 will be 

vacated. 

Order 

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED 

that: 

1. Citation 1, Item 1 is VACATED; and 

2. Citation 1, Item 2 is VACATED. 

/s/ Brian A. Duncan 

Date: October 15, 2020 Judge Brian A. Duncan 

Denver, Colorado U.S. Occupational Safety and Health Review Commission 

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