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The Labor Department did not show that a crypt burial installation company employee standing clear of a four-ton crypt was a practical way of reducing an amputation hazard, the federal workplace safety commission ruled.
Peacock Engineering was installing a crypt at Miramar National Cemetery in San Diego on May 6, 2011, when a wire rope sling slipped and amputated an employee’s thumb.
The two members of the Occupational Safety and Health Review Commission agreed in an April 27 decision that the department failed to prove a violation of the Occupational Safety and Health Act’s general duty clause, Section 5(a)(1) ( Sec’y of Labor v. Peacock Eng’g, Inc. , OSHRC, No. 11-2780, 4/27/17 ).
The Occupational Safety and Health Administration alleged in its citation that Peacock had exposed the employee to “amputation, struck by and crushed by hazards, while guiding a suspended load by hand.”
Because California’s state plan does not cover national memorials, federal OSHA conducted the inspection.
A Peacock foreman was using an excavator to move the crypt, which was suspended by wire rope slings on either side, from a staging area to its plot. When the crypt was one to two feet off the ground, the injured employee was standing two feet away and guiding it by hand into place, according to the decision.
Administrative Law Judge Patrick B. Augustine found that no employees were exposed to the alleged hazard and vacated the citation item.
Acting Chairman Heather L. MacDougall and Commissioner Cynthia L. Attwood affirmed, but did so on the grounds that the department failed to prove “a feasible and effective means existed to eliminate or materially reduce the hazard,” the fourth element of a general duty clause violation.
Neither using tag lines attached to the crypt at opposing corners nor a guide pole while standing 15 feet away to maneuver the crypt ensures precision placement, and therefore they aren’t feasible methods of abatement, the commissioners wrote. Moreover, the American Society of Mechanical Engineers standard, which among other things recommends personnel stand clear of suspended loads, did not address the precision required of such installation work.
In a separate decision, the commissioners split on whether Peacock’s modification of a forklift violated a provision of the material handling equipment standard ( Sec’y of Labor v. Peacock Eng’g, Inc. , OSHRC, No. 11-2780-A, 4/27/17 ).
Peacock had removed the forks from the boom and added a custom attachment point to allow it to lift crypts from above.
The commissioners agreed to vacate Peacock’s petition for review of Augustine’s decision vacating the citation item for a violation of 29 C.F.R. 1926.602(c)(1)(ii). The department may ask a federal court of appeals to review the ALJ ruling.
The department “failed to present credible, objective, factual evidence that established the custom attachment affected the capacity of the forklift or rendered it unsafe to operate,” Augustine had ruled in the April 2013 decision.
Stark & D’Ambrosio, LLP, San Diego represented Peacock.
The Department of Labor, Office of the Solicitor, Washington, D.C., represented the secretary.
To contact the reporter on this story: Lars-Eric Hedberg in Washington, D.C. at firstname.lastname@example.org
To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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