American Steel Erectors

Plain-English summary

American Steel Erectors was installing roof decking at the Omaha Convention Center when an employee fell through an opening and his retractable lifeline abraded against an unprotected steel beam and broke. The employee fell 47 feet to the ground. The judge affirmed the lifeline-protection item because the manufacturer's instructions warned about sharp edges and alternative fall-protection systems were available even though padding the moving work area was infeasible. He reduced the proposed penalty to $500 based on the company's good faith and existing fall-protection efforts. A separate training item was vacated because the Secretary did not prove that the anchor was improperly placed or that the system allowed an excessive free fall.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.502(d)(11) and 1926.503(a)(2)(ii)
• Outcome: The lifeline-abrasion item was affirmed with a $500 penalty, and the training item was vacated.
• Key point: When padding a sharp edge is infeasible, an employer must still use a feasible fall-protection method that prevents the lifeline from contacting that edge.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Compla inant,

                           v.                                OSHRC DOCKET NO. 02-2026

AMERICAN STEEL ERECTORS, INC., and its
successors,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Aaron J. Rittmaster, Esq., Office of the Solicitor, U.S. Department of Labor, K ansas City, Missouri

      For the Re spondent:
               David S. Johnson, Pro Se, American Steel Erectors, Council Bluffs, Iowa

Before: Administrative Law Judge: James H. Barkley

                                          DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651-678; hereafter called the “Act”).
Respondent, American Steel Erectors (American), at all times relevant to this action maintained
a place of business at the Omaha Convention Arena Center where it was engaged in roofing construction.
The Commission has held that construction is in a class of activity which as a whole affects interstate
commerce. Clarence M. Jones d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516
(No. 77-3676, 1983). Respondent is an employer engaged in a business affecting commerce and is subject
to the requirements of the Act.
On May 29, 2002, following its receipt of an accident report, the Occupational Safety and Health
Administration (OSHA) initiated an inspection of American’s Omaha work site. As a result of that
inspection, American was issued citations alleging violations of the Act together with proposed penalties.
By filing a timely notice of contest American brought this proceeding before the Occupational Safety and
Health Review Commission (Commission). The case was designated for E-Z trial, but was removed to
conventional proceedings upon the parties’ representation that the case presented complex issues of law
and fact. Prior to the parties’ completion of discovery, American’s counsel asked permission to withdraw,
and American elected to proceed pro se.
On May 16, 2003, a hearing was held in Omaha, Nebraska. No briefs were requested. This matter
is, therefore, ready for disposition.
 Facts
It is not disputed that on the day of the incident from which the OSHA inspection arose, American
employee Adam Brodahl was standing on an I-beam positioning metal decking when he fell from the beam
through a hole in the metal deck. Brodahl was wearing an Ultra-Lok 50-foot retractable lifeline attached
to a DBI/SALA swiveling roof anchor, which was attached to previously installed decking eight to ten feet
back from the hole (Tr. 36-38; Exh. C-3, C-11, C-12). The lifeline broke, however, and Brodahl fell to
the ground forty-seven feet below the deck.
OSHA Compliance Officer (CO) Darwin Craig testified that Brodahl’s lifeline abraded as it slid
across the unprotected I-beam (Tr. 36-38, 42). Craig testified that the cable should have been protected,
or another type of fall protection system used (Tr. 58, 62-63). Craig had never before issued a citation for
an employer’s failure to protect the edges of an I-beam (Tr. 54).
Jeff Boxrud, a sales representative of DBI/SALA testified that carpeting or rubber padding could
be used to protect the lifeline cable in cases where a retractable lifeline is used in flat roof steel erection
(Tr. 74). However, Boxrud testified that he would not recommend using a retractable lifeline for fall
protection on a flat roof such as the one at the Omaha Convention Center (Tr. 70, 83). Boxrud testified
that he would recommend a restraint system, which keeps employees from going over the edge, and
eliminates the possibility that the lifeline will become abraded on the sharp corner (Tr. 70-71, 79-80).
According to Boxrud, a restraining line is typically used in conjunction with a horizontal lifeline in steel
erection (Tr. 80, 85). The horizontal lifeline is normally mounted on shoulder height stanchions to limit
the free fall distance, and eliminate the possibility of “swing falls” (Tr. 86). The user instruction manual
for the swiveling roof anchor warns users to:
Avoid working where the connecting subsystem (i.e. self retracting lifeline, full body
harness, etc.) or other system components will be in contact with, or abrade against
unprotected sharp edges. If working with this equipment near sharp edges is unavoidable,
proteciton against cutting must be provided by using a heavy pad or other means over the
sharp edge (Exh. C-11, p. 4).

    James Drake, an ironworker and part owner of American Steel Erectors (Tr. 133), testified that it

only takes an hour or two for his crews to lay a bundle of decking (Tr. 137-138). Two steel workers each
hold an end of each sheet of steel and slide it across the previously laid panels, lapping the sheet over the
last panel (Tr. 137-39). After four or five sheets are laid out, they are wind tacked before the leading edge
is advanced (Tr. 138). Drake did not know that OSHA regulations required padding the edges of the steel,
and could see no practical benefit in providing padding (Tr. 140, 148). According to Drake, padding the
steel would make it difficult for his employees to walk on the steel (Tr. 150).

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Ronald Oates, president and apprentice coordinator for Iron Workers Local 21, testified that he has
never seen any contractor using padding or abrasion-resistant material to protect the edges of exposed steel
(Tr. 96). He had never heard of a lifeline abrading and breaking on the unprotected edge of a steel beam
(Tr. 98). Oates stated that protecting exposed steel during decking is infeasible because of the rate decking
is laid. Padding would have to be removed as quickly as it was placed, so that the decking can be welded
to the steel. Moreover, the steel would be unprotected during that period between the removal of the
padding and the laying of the decking (Tr. 96, 99, 115). Oates testified that the fall protection he most
often uses when decking is a retractable lifeline attached to a horizontal safety line running between two
stanchions, which have been screwed into previously welded portions of decking (Tr. 97). Oates had seen,
but never used a swivel mounted lifeline anchor (Tr. 102).
Doug Schneider, a private safety consultant (Tr. 116), testified that the swivel mounted anchor and
retractable lifeline that American used on the Omaha work site was appropriate for its roof decking
operation (Tr. 123). Schneider stated that he had never seen padding used to protect lifeline cables from
abrasion (Tr. 117-18). He was unaware of any padding manufactured for that purpose (Tr. 118). Schneider
testified that it was infeasible to install padding under the cited conditions, but also stated if there was a
pad approved for the purpose, “probably they should use it” (Tr. 125).
Dave Johnson, the other owner, testified that in the three years he had been in the business, he had
never heard of a retractable lifeline abrading and breaking on steel beams (Tr. 155).
Alleged Violations
Serious citation 1, item 1 alleges:
29 CFR 1926.502(d)(11):
American Steel Erectors, Inc. - Omaha Convention Center/Arena - Lifelines were not
protected from cuts or abrasions. The retractable cable lifeline in use by the employee
abraded along the edge of the steel beam when the employee fell from the metal decked
area being installed. The cable broke allowing the employee to fall to the ground below.

   The cited standard provides:
   Lifelines shall be protected against being cut or abraded.




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Discussion
In order to prove a violation of section 5(a)(2) of the Act, 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. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359, 1991).
There is no question in this case that the employee’s lifeline was abraded on the structural steel during his
fall. American argues, however, that it had no knowledge of prior accidents caused by the abrasion of a
lifeline on structural steel and did not know that OSHA required protection against such damage. In
effect, American argues that it could not reasonably have been expected to know that it was required by
§1926.502(d)(11) to pad the structural steel on which it was working. American also maintains that
protecting lifelines by padding the steel is both infeasible and would result in a greater hazard
Knowledge/Vagueness. The record establishes that American’s owners supplied fall protection
equipment for their employees, and were actually unaware of any possibility that the lifelines provided
could become abraded by the structural steel. However, American cannot excuse its failure to comply with
the cited standard by claiming ignorance of the need to protect its lifelines against becoming cut or abraded
on the structural steel in the event of a fall. The Commission has held that the Secretary need not prove
the employer had knowledge of a specific hazard, or that an accident was forseeable. It is well settled that
the employer’s lack of knowledge is a defense to an established violation only when the employer was
unaware of the conditions in their workplace; Ormet,14 BNA OSHC 2134, 1991-93 CCH OSHD ¶29,254
(85-531, 1991).
Moreover, the Secretary takes the position that a reasonable employer should know that a lifeline
can become abraded if an employee’s fall brings his lifeline into contact with the sharp edge of a steel
structure. The Secretary further contends that a reasonable employer should know that where a lifeline
allows an employee to fall over an edge, that employee may swing at the end of his tether, further abrading
and/or cutting the lifeline. In support of its contention, the Secretary points to DBI/SALA’s user manual,
which alerts users to the danger posed by sharp edges and swing falls.
29 CFR §1926.502(d)(11) requires that lifelines be protected against abrasion. The Commission
has held that a standard is so vague as to be unenforceable if a reasonable person, examining the standard
in light of the particular circumstances, can determine what is required. J.A. Jones Constr. Co., 15 BNA
OSHC 2201, 1991-93 CCH OSHD ¶29,964 (No. 86-2059, 1993). Moreover, it has held that an employer
has a duty to inquire into the requirements of the law. Peterson Brothers Steel Erection Company, 16 BNA

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OSHC 1196, 1991-93 CCH OSHD ¶30,052 (No. 90-2304, 1993), aff’d. 26 F.3d 573 (5th Cir. 1994). In
this case the manufacturer’s instruction manual warns the user of the need to protect the lifeline from
becoming cut or abraded with padding or some other means where the lifeline will come in contact with
sharp edges. As noted by American itself, in the event of any fall at this work place, an employee’s lifeline
will probably come in contact with a sharp edge. In these particular circumstances a reasonable employer
with access to the user manual should have been aware of the need to protect its employees’ lifelines from
cutting and/or abrasion in the event of a fall. This judge is constrained to find, therefore, that American
had sufficient notice of its duty under the Act to render the cited standard enforceable.
Infeasibility. To establish the affirmative defense of infeasibility, an employer must show that:
1) the means of compliance prescribed by the applicable standard would have been infeasible, in that (a)
its implementation would have been technologically or economically infeasible, or (b) necessary work
operations would have been technologically or economically infeasible after its implementation, and (2)
there would have been no feasible alternative means of protection. V.I.P. Structures, Inc., 16 BNA OSHC
1873, 1994 CCH OSHD ¶30,485 (No. 91-1167, 1994).
The record establishes that literal compliance with the cited standard is infeasible. American
established that there is no way to use the suggested precaution, i.e. padding the structural steel, without
unreasonably disrupting the decking work to be performed. See; Seibel Modern Mfg & Welding Corp.,
15 BNA OSHC 1218, 1991-93 CCH OSHD ¶29,442 (No. 88-821, 1991). However, American failed to
carry its burden of showing that no alternative means of fall protection are available to its employees. The
record establishes that horizontal lifelines are routinely installed during roof decking operations. American
failed to rebut the Secretary’s suggestion that a restraint system be used in combination with a horizontal
lifeline. Because American failed to show that no alternative means of fall protection were available to
it, the affirmative defense of infeasibility must be rejected.
Greater Hazard. In order to establish the affirmative defense of a greater hazard, the employer
must show that: 1) the hazards of compliance are greater than the hazards of non-compliance; 2) alternative
means of protection are unavailable; and 3) an application for a variance would be inappropriate. See
Walker Towing Corp., 14 BNA OSHC 2072, 2078, 1991-93 CCH OSHD ¶29,239, p. 39,161 (No. 87-1359,
1991). Because this defense also requires American to prove that no alternative means of protection were
available, it must also be rejected.
Serious citation 1, item 1 is affirmed.

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Penalty
A penalty of $2,000.00 was proposed for this item. In determining the penalty the Commission is
required to give due consideration to the size of the employer, the gravity of the violation and the
employer's good faith and history of previous violations. Nacirema Operating Co., 1 BNA OSHC 1001,
1972 CCH OSHD ¶15,032 (No. 4, 1972). The proposed penalty in this matter was $2,000.00 (Tr. 43).
Three or four employees were using the retractable lifelines to install decking and so were continuously
exposed to the cited hazard (Tr. 38-40). The gravity based penalty was reduced by 60% due to American’s
small size (Tr. 43-44). Craig testified that no adjustment for history was provided as American was cited
for a serious violation of the Act in the preceding three years (Tr. 44). No credit was given for good faith
because of inadequacies in American’s safety program, see item 2, below (Tr. 44). However, that
American paid serious attention to its employees’ safety is clear from the fall protection in use at the work
site. American should be given credit for its good faith and willingness to accept its responsibilities under
the Act. The fact that American did not foresee that its safety line would break and so did not choose an
alternative means of fall protection does not establish bad faith. Accordingly, the penalty is reduced to
$500.00 to reflect American’s good faith.
Serious citation 1, item 2 alleges:
29 CFR 1926.503(a)(2)(ii):
American Steel Erectors, Inc. - Omaha Convention Center/Arena - Employees were not
adequately trained on the proper erection procedures for fall protection systems that were
used. The erection of the retractable back from the edge of the work area allowed for the
potential of abrading the cable against the edge of the steel in the event of a fall. This
additional distance also allows an employee to free fall greater than 6 feet in the event of
a fall.

Facts
At the hearing, Dave Johnson testified that American provided on-the-job training for its employees
in the use of the fall protection system they provided (Tr. 157). American also trained employees in the
proper way to set up the system (Tr. 157). Johnson admitted that American did not train its employees to
provide padding on the structural steel, as it was not aware of any need for such protection (Tr. 158).
Employees were not trained to recognize the hazard of swing falls (Tr. 158).
Discussion
Citation 1, item 2, charges American with failing to train its employees in the proper erection
procedures for the fall protection systems that were used. The citation suggests that the improper erection
of the system was responsible for creating the potential for abrasion in the event of the fall. The citation

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further suggests that the improper erection of the system allowed employees to free fall more than six feet.
There is no evidence in the record establishing that the swiveling roof anchor was improperly placed, or
that the placing of the anchor would have prevented the system’s automatic locking, or self-retracting
feature to engage.
The Secretary clearly failed to prove the allegations made in this item. Accordingly this item is
vacated.

                                             ORDER

1. Citation 1, item 1, alleging violation of 29 CFR 1926.502(d)(11) is AFFIRMED, and a penalty of
   $500.00 is ASSESSED.
2. Citation 1, item 2 alleging violation of 29 CFR 1926.503(a)(2)(ii) is VACATED.

                                                     /s/
                                                    James H. Barkley
                                                    Judge, OSHRC
   

Dated: September 2, 2003

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