operator, an employee whose name had been redacted from the record, indicated that his responsibilities included crane assembly, determining the location of the crane at the site and rigging the personnel basket. He had no supervisory job functions but was rather supervised by ACrane’s operations manager, although she had not visited the site until the accident.

On the first day, ACrane’s operator hoisted two of Superior’s employees on the personnel platform, while on the second day he hoisted one or two Superior employees. However, on the third day, March 21, 2019, Superiors’ foreman, loaded the personnel platform with equipment and three Superior employees. ACrane’s operator testified that due to the platform’s location he could not see it until the personnel platform had been lifted about halfway up the communications tower, at which point he decided it was safer to take three workers to the top of the tower rather than lower them to ground. As one of Superior’s employees attempted to tie off to the tower, he tragically fell 105 feet and succumbed to his injuries.

During OSHA’s subsequent investigations, ACrane’s operator admitted during questioning that he had determined the best location for the crane to be set-up and that he could see the personnel basket from the ground to the whole tower. However, based on the submitted evidence, it was shown that the operator was unable to see the personnel platform until it cleared the trees about halfway up the tower at the time of this accident.

ACrane’s written procedures for “Crane Hoisted Personnel Platforms” required that “workers to be hoisted” must attend a pre-lift meeting. On the day of the accident, Superior’s foreman, in his capacity as the Lift Director, held a lift meeting with ACrane’s operator. However, the operator did not know which Superior employees would be hoisted that day, and he had no knowledge whether the foreman briefed the Superior employees to be hoisted separately, except for observing the foreman had walked toward Superior’s crew after their meeting.

OSHA investigated the tragic accident and subsequently issued a two-item citation to ACrane alleging violations of OSHA’s Cranes and Derricks in Construction standard. Under the Item #1, OSHA alleged that when a “two person personnel basket was utilized by the crane operator to hoist the…crew consisting of three employees to heights above 90 feet from ground level…the maximum capacity of the personnel basket was exceeded exposing employees to fall and struck-by hazards” given that the cited OSHA standard mandates that the “number of employees occupying the personnel platform must not exceed the maximum number the platform was designed to hold or the number required to perform the work, whichever is less.”

Under Item # 2, it was alleged that ACrane committed a serious violation of OSHA’s standard when it did not ensure that “employees hoisted in a personnel basket attend the pre-lift meeting with the crane operator and competent person responsible for the communication tower work” as the cited standard requires that the pre-lift meeting must be attended by “the equipment operator, signal person (if used), employees to be hoisted and the person responsible for the task to be performed.”

The Secretary established that cited standards applied to the cited conditions and that they were violated because ACrane’s operator could not identify anyone else besides the foreman/lift director who had attended the pre-lift meeting, and he did not know whether the Lift Director had separately briefed the workers to be hoisted. However, the Administrative Law Judge found that ACrane did not have its own employees exposed to the violative conditions, and it was not a “controlling employer” under OSHA’s Multi-Employer Citation Policy (which provides that an “employer who… controls the cited hazard has a duty… to protect not only its own employees but those of other employers engaged in the common undertaking”) and therefore vacated the citation.

The Occupation Safety and Health Review Commission disagreed and reversed the ALJ. The commission found that although ACrane was not a “controlling employer” it rather was a “creating employer” (which as defined by relevant precedent provides that an “employer who creates a violative or hazardous condition is obligated to protect its own employees as well as employes of others who are exposed to the hazard.”) Therefore, the ALJ should reconsider their legal analysis accordingly, to determine ACrane’s noncompliance and knowledge elements with respect to the citation.

Even if a subcontractor lacks authority to direct other contractors’ employees at a site, it must still take “effective steps” to keep all workers safe, and, especially from any dangers and hazards associated with its own work.

About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.