EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Bragg Crane & Rigging Co., – Decision after reconsideration

Employer was cited for a serious, accident-related violation of section 3704 [secure loads] after an accident investigation where on employee was killed and another injured when an unsecured jib fell from a truck. The board affirmed and adopted the ALJ's decision which found a serious violation of the safety order. The board upheld the determination that the safety order was applicable and rejected the employer's argument that the wrong safety order was cited because it was only unloading the jibs and was not engaged in the transportation or delivery of jibs which is contemplated in the cited safety order. The board held that section 3704 is applicable during the unloading of materials from a truck at the employer's site. The board also rejected the employer's claim that its substantive due process rights were violated by the ALJ's failure to independently evaluate the appropriateness of the penalty. An employer has an obligation to set forth the reasons for its challenge to the penalty so that the board can determine whether or not the employer has successfully rebutted the presumptive reasonableness of the penalty. Although the board has the authority to determine the appropriate penalty in each case, it is reluctant to do so except in extraordinary cases and only where an employer sets forth a challenge to specific penalties. The penalty was affirmed.

Bragg Crane & Rigging Co., 01-2428 (Word)
Bragg Crane & Rigging Co., 01-2428 (Adobe Acrobat)
June 28, 2004