Nuprecon, LP d/b/a Nuprecon Acquisition, LP

Plain-English summary

Nuprecon employees were demolishing an aircraft hangar beside a 21-foot-wide unprotected opening with a 36-foot drop. The Commission rejected the judge's exposure finding for a Bobcat operator because the fall standard's definition of a walking or working surface excludes vehicles, and the record did not show that the operator would dismount near the edge. It nevertheless found exposure because a pipe-removal employee working from a mobile lift beside the opening could predictably dismount and move through a debris-strewn area within about six feet of the edge. Red danger tape did not provide fall protection, and retractable devices located at least 21 feet away did not protect that employee's immediate work area. The Commission affirmed the serious violation and assessed the proposed $1,875 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: The serious fall-protection citation was affirmed, and a $1,875 penalty was assessed.
• Key point: Employee exposure can be reasonably predictable from expected movement within a work area, even when no employee is observed at the unprotected edge.

Full text (OSHRC public release)

NUPRECON LP dba NUPRECON ACQUISITION LP, Docket No. 08-1037

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 08-1037

NUPRECON LP dba NUPRECON
ACQUISITION LP,

Respondent.

ON BRIEFS:

Gary K. Stearman, Attorney; Scott Glabman, Senior Appellate Attorney; Joseph M. Woodward,
Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of
Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Aaron K. Owada, Esq.; AMS Law, P.C., Lacey, WA

For the Respondent

DECISION

Before: ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

This case involves a citation issued to Nuprecon LP (“Nuprecon”) under the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, alleging that Nuprecon failed to protect
employees from a fall hazard in violation of 29 C.F.R. § 1926.501(b)(1).

This matter is before the
Commission for the second time. In our previous decision, the Commission reversed former
Administrative Law Judge Benjamin R. Loye’s determination that the cited standard did not apply
to the working conditions at issue,

and remanded the case to him to consider whether the Secretary
had proven the remaining elements of the alleged violation.

Nuprecon LP , 22 BNA OSHC 1937,
1941, 2009 CCH OSHD ¶ 33,034, pp. 54,387-88 (No. 08-1037, 2009).

In his decision on remand, Judge Loye affirmed the fall protection violation and assessed the
proposed $1,875 penalty. On review, Nuprecon now contends that the judge erred in affirming the
citation, claiming that the Secretary failed to establish both employee exposure and noncompliance.

For the following reasons, we affirm the citation and assess a penalty of $1,875.

BACKGROUND

On April 21, 2008, the Occupational Safety and Health Administration (“OSHA”) conducted
a programmed inspection of the Whidbey Island Naval Air Station in Oak Harbor, Washington,
where Nuprecon employees were demolishing hangars and other structures. At the time of the
inspection, Nuprecon employees were working on the third floor of one of the hangars where the
OSHA compliance officer (“CO”) observed an unprotected twenty-one-foot-long, floor-to-ceiling
opening. The CO learned that sometime prior to her arrival, a Nuprecon employee had been
operating a Bobcat front-end loader (“Bobcat”) pushing debris through the unprotected opening down
to a lower level of the hangar, about thirty-six feet below. Nuprecon , 22 BNA OSHC at 1938,
2009 CCH OSHD at p. 54,385. During the inspection, the Bobcat operator was observed working
elsewhere on the third floor and another Nuprecon employee was observed removing overhead
ceiling pipes while standing in a mobile lift located to one side of the unprotected opening. Other
Nuprecon employees passed by this work area to access their work on another floor.

Across the unprotected opening, Nuprecon had secured a “5/8-inch thick cable, hung several
feet above the floor,” to prevent the Bobcat from falling over the edge. Id. Nuprecon had also “hung
red plastic . . . tape several feet above the floor from the walls near the open edge to and between
stanchions” to create “a rectangular area in front of the open edge.” Id. Nuprecon trained its
employees that red tape signified “danger” and that they were to “stay out” of such taped-off areas.
During the inspection, the CO did not observe any Nuprecon employees inside the taped-off area.
However, the videotape taken by the CO and still photographs developed from that videotape show
that the employee working from the lift was located just outside and to the right of the taped-off area.
There is no video or photographic evidence of the Bobcat’s location, and the CO testified only that
it was being operated in an “adjacent” location somewhere outside the taped-off area. On the left side
of the taped-off area Nuprecon had placed retractable fall protection equipment, referred to as a “yo-yo system.”

DISCUSSION

I.     Exposure  

The Secretary establishes employee exposure to a violative condition “either by showing
actual exposure or that access to the hazard was reasonably predictable.” Phoenix Roofing Inc. ,
17 BNA OSHC 1076, 1079, 1993-95 CCH OSHD ¶ 30,698, p. 42,605 (No. 90-2148, 1995), aff’d ,
79 F.3d 1146 (5th Cir. 1996) (unpublished). In determining whether the Secretary has proven access
to the hazard, the “inquiry is not simply into whether exposure is theoretically possible,” but whether
it is reasonably predictable “either by operational necessity or otherwise (including inadvertence),
that employees have been, are, or will be in the zone of danger.” Fabricated Metal Prods., Inc. ,
18 BNA OSHC 1072, 1074, 1995-97 CCH OSHD ¶ 31,463, p. 44,506 (No. 93-1853, 1997).

Here, the judge concluded that exposure to a fall hazard was established based on his finding
that the Bobcat operator came within 3 ½ feet of the unprotected edge while he was operating the
Bobcat. But in her brief to the Commission, the Secretary concedes that Nuprecon was not required
to provide fall protection to the Bobcat operator while he operated the vehicle. As the Secretary
points out, the requirements of § 1926.501(b)(1) only apply to employees on a “walking/working
surface” and the standard expressly omits vehicles, such as the Bobcat, from the definition of
“walking/working surface.”

29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.500(b) (defining
”walking/working surface” as “any surface, whether horizontal or vertical on which an employee
walks or works, . . . but not including ladders, vehicles , or trailers, on which employees must be
located in order to perform their job duties” (emphasis added)). Nonetheless, the Secretary contends
that the Bobcat operator was exposed to the fall hazard because, in her view, it was “reasonably
foreseeable that [he] might have to get out of his vehicle while in the taped-off area.” But the record
evidence does not indicate that the Bobcat operator’s work would have entailed dismounting the
vehicle while working inside the taped-off area, nor does it establish the Bobcat operator’s proximity
to the unprotected edge when he would dismount the Bobcat while working outside the taped-off
area. In these circumstances, we cannot find that it was “reasonably predictable” the operator would
be exposed to the unprotected edge. Accordingly, we conclude that the judge erred in basing his
exposure finding on the Bobcat operator.

However, there is evidence that the employee engaged in pipe removal work was exposed to
the unprotected edge. Although the red tape strung parallel to the unprotected edge was positioned
at a 15-foot distance from that edge, Nuprecon’s field safety officer testified that his “most
conservative guess” of the distance between the tape at the wall on the right side of the edge and the
edge itself was six feet. The record provides no definitive distance between the employee while he
was working from the lift and the unprotected edge, but the video and photographic evidence taken
by the CO clearly demonstrate that he was positioned “closely adjacent” to both the red tape on the
right side of the taped-off area and to the unprotected edge. See Lancaster Enters. , 19 BNA
OSHC 1033, 1037, 2000 CCH OSHD ¶ 32,181, p. 48,635 (No. 97-0771, 2000) (finding employee
access to unguarded glass skylight where “precise distance” between skylight and hatchway used by
employees was “not clear” but sketch and photograph showed hatchway was “closely adjacent” to
unguarded skylight).

Moreover, the record establishes that this employee was removing overhead ceiling pipes, and
his work area near the base of the lift and right up against the wall containing the unprotected edge
was strewn with pipes and debris. We find it reasonably predictable that such an employee actively
engaged in this type of work would need to move about his entire work area. Nothing prevented him
from dismounting the lift in that area and—given the distance between the edge and the red tape on
that side—coming within six feet of the edge. In fact, based on the employer’s own instructions that
the red tape signified “danger” and employees were to “stay out” of such areas, this employee may
have had the mistaken impression that as long as he remained outside of the taped-off area, he would
not be exposed to a fall hazard. Cf. Dic-Underhill , 8 BNA OSHC 2223, 2229-30, 1980 CCH
OSHD ¶ 24,959, p. 30,797 (No. 10798, 1980) (finding access to a fall hazard where two employees
grinding ceiling seams 25 or more feet from unguarded edge had to move closer to edge to sand
seams extending to that side of building). Additionally, the pipes and debris on the floor alongside
the wall created a tripping hazard within approximately six feet of the unprotected edge. Cf. Gallo
Mech. Contractors, Inc. , 9 BNA OSHC 1178, 1180, 1981 CCH OSHD ¶ 25,000, p. 30,899 (No. 76-4371, 1980) (“Hazards of tripping and falling . . . can occur if matter is scattered about working and
walking areas.”); N&N Contractors, Inc. , 18 BNA OSHC 2121, 2122, 2000 CCH OSHD ¶ 32,101,
p. 48,238 (No. 96-0606, 2000) (stumbling near unprotected edge resulted in non-tied-off employee
falling to his death), aff’d , 255 F.3d 122 (4th Cir. 2001). Under these circumstances, we find it
reasonably predictable that this employee would dismount the lift in his work area and come within
the zone of danger.

See Lancaster Enters. , 19 BNA OSHC at 1037, 2000 CCH OSHD at p. 48,635
(finding exposure where employees used a hatchway and ladder “closely adjacent” to a fall hazard);
Phoenix Roofing , 17 BNA OSHC at 1079, 1993-95 CCH OSHD at p. 42,605 (“about 12 feet” from
unguarded skylights); Dic-Underhill , 8 BNA OSHC at 2229-30, 1980 CCH OSHD at p. 30,797 (25
or more feet from an unguarded edge, working towards that edge); Cornell & Co. , 5 BNA
OSHC 1736, 1738, 1977-78 CCH OSHD ¶ 22,095, p. 26,608 (No. 8721, 1977) (ten feet from an
elevator shaft); see also Brennan v. OSHRC (Underhill Constr. Co.) , 513 F.2d 1032, 1039 (2d Cir.
1975) (rejecting conjecture that exposure may only be found where an employee is “teetering on the
edge of the floor”). Accordingly, we conclude the Secretary established that the employee engaged
in pipe removal was exposed to the unprotected edge.

II.   Noncompliance  

Section 1926.501(b)(1) lists three methods of fall protection for use at an unprotected edge:
“guardrail systems, safety net systems, or personal fall arrest systems.” The parties agree that
Nuprecon erected neither a guardrail nor a safety net system, and that the red tape Nuprecon placed
around the unprotected edge does not serve as a method of fall protection. But the parties disagree
as to whether the yo-yos provided the requisite personal fall arrest protection and whether they were
even installed at the time of the inspection. There is no dispute, however, that the yo-yos were
located at a distance of at least 21 feet across the taped-off area from where the employee was
performing his pipe removal work. Thus, even if we assume that the yo-yos constituted an adequate
personal fall arrest system under the cited standard that was both installed and available for use, this
means of fall protection was not located within the immediate work area of the employee engaged
in pipe removal on the right side of the taped-off area. As such, the yo-yos offered him no protection
whatsoever once he was off the lift and exposed to the fall hazard. See N&N Contractors, Inc. ,
18 BNA OSHC at 2122, 2000 CCH OSHD at p. 48,238 (finding noncompliance with
§ 1926.501(b)(1) where employee was “clearly in the zone of danger” and not tied off), aff’d , 255
F.3d at 126 (“[A] fall arrest system is useless unless it is properly secured as soon as the danger of
falling arises.”). Therefore, we find the Secretary established that Nuprecon failed to comply with
the cited provision. Accordingly, we affirm the violation.

ORDER

We affirm Citation 1 Item 1a as serious and assess a penalty of $1,875.

SO ORDERED.

/s/

Thomasina V. Rogers

Chairman

/s/

Cynthia L. Attwood

Dated:   February 7, 2012                                             Commissioner

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

Complainant,

v.

OSHRC DOCKET NO. 08-1037

Nuprecon, LP,

Respondent.

Appearances:

Abigail G. Daquiz, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

For Complainant

Aaron K. Owada, Esq., AMS Law, P.C., Lacey, Washington

For Respondent

Before:   Administrative Law Judge Benjamin R. Loye

DECISION AND ORDER

Procedural History

On May 21, 2009, the undersigned issued a Decision and Order in this case which vacated
two alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et seq.
("the Act"). On July 2, 2009, the Occupational Safety and Health Review Commission ("the
Commission") directed review of the decision. On November 20, 2009, the Commission issued a
Decision and Remand Order reversing the undersigned with regard to the vacating of Citation 1
Item 1(a). The Commission concluded that the standard allegedly violated in Citation 1 Item 1(a)
did apply to the work being performed by Respondent, and remanded the case for a determination
of whether the Secretary established the remaining elements of the violation.

Factual Findings

The Occupational Safety and Health Administration ("OSHA") conducted an
inspection of a Nuprecon, LP ("Respondent") worksite at a naval air station near Seattle,
Washington on April 21, 2008. As a result of the inspection, OSHA issued a Citation
and Notification of Penalty to Respondent alleging two violations of the Act.

The
violation at issue on remand, Citation 1 Item 1(a), alleged a serious violation of 29 C.F.R.
§1926.501(b)(1) with a proposed penalty of $1,875.00.

On April 21, 2008, OSHA Compliance Safety and Health Officer (“CSHO”)
Kalah Goodman conducted an inspection of work activities at Whidbey Island Naval Air
Station in Washington. (Tr. 14-15). The inspection was a programmed planned
inspection of the site as a result of the location being listed on OSHA's Dodge Report.
(Tr. 14). At the time of the inspection, Respondent had employees working on the third
and fourth floors of Hangar Five. (Tr. 17, 26, 72). Respondent’s employees were
demolishing two hangar bays, two floors of another hangar, and a tunnel. (Tr. 73).

CSHO Goodman entered the third floor of Hangar Five and observed a 21-foot
horizontal opening at one outer edge of the floor. (Tr. 20, 60; Ex. 2, 5). The floor
opening had a 5/8-inch thick wire cable stretched across it, which was secured to the two
columns on either side. (Tr. 20, 40, 74; Ex. 2, 4). There was also red plastic tape
surrounding the floor opening in a rectangular pattern, approximately 15 feet from the
edge. (Tr. 79-80). The distance from the edge of the third-floor opening to the ground
below was approximately 36 feet. (Tr. 75-76; Ex. 5).  

CSHO Goodman learned that the 21-foot opening was being used by a Nuprecon
employee operating a Bobcat front-end loader to push debris off the edge as part of the
building demolition. (Tr. 25). However, at the time of her inspection, the Bobcat
operator was not working near the edge. (Tr. 25, 43-44). He was working in an adjacent
area on the same floor, piling up piping which was being removed from the building. (Tr.
25). CSHO Goodman observed another Nuprecon employee working near the red tape
barrier, but outside its boundaries, on a scissor lift. (Tr. 25, 29, 47; Ex. 4). There were
also several Nuprecon employees who passed through the third floor of Hangar Five
daily on their way up to the fourth floor. (Tr. 26, 47).

CSHO Goodman testified that the regulations, under these circumstances,
provided for only three methods of acceptable fall protection for employees accessing the
third floor: guardrail systems, safety net systems, or personal fall arrest systems. (Tr. 26,
28). She testified that the use of a wire rope and red tape to guard this open floor edge
was not sufficient. (Tr. 26-29). The Secretary considered all employees working on the
third floor of Hangar Five to be exposed to a fall hazard as a result of this condition. (Tr.
46, 48-49; Complainant's Post-Hearing Brief, p.6). The parties agree that a 36-foot fall
would unquestionably result in serious injury or death. (Tr. 34, 115).

During the inspection, CSHO Goodman observed and video-recorded the floor
opening while standing just outside the red-tape boundary. (Tr. 39). Although she
testified that any employee who walked on the third floor was exposed to a fall hazard as
a result of this condition, she did not consider herself personally exposed to the fall
hazard while standing fifteen feet from the edge. (Tr. 39). She acknowledged that the red
tape surrounding the edge indicated to her that she should stay out of that area. (Tr. 40).
She further acknowledged that she never saw any employees working within the
boundaries of the red tape. (Tr. 43).

Prior to the inspection, Respondent had implemented and trained its employees on
a color-coded system regarding plastic tape boundaries. (Tr. 77). Red tape is recognized
as the highest danger level and employees are trained to stay out of any area demarcated
with red tape. (Tr. 77). The lone exception in this instance was the Bobcat operator, who
actually maneuvered his machine inside the area so that debris could be pushed off the
floor opening to the ground below. (Tr. 76, 80, 83-84, 95).

Respondent presented evidence and argument on a multitude of alternative fall
protection methods identified in the regulations. However, Aaron Tomaras, Respondent's
Superintendent on the day of the inspection, conceded that the wire rope stretched across
the opening did not constitute a guard rail system, that the Bobcat operator's use of a seat
belt did not constitute fall protection, that the floor opening was not a leading edge, and
that "warning line system" referenced in §1926.500 applies only to roof work. (Tr. 88,
90-91, 115). He also conceded that this location was not a roof. (Tr. 91). Avery Brown,
Respondent's Field Safety Officer, maintained that the red-taped area surrounding the
third floor opening was a "controlled access zone." (Tr. 101-102). However, I find that
Respondent was not engaged in the type of activities referenced by the controlled access
zone regulation [29 C.F.R. §1926.502(g)]: bricklaying, leading edge work, precast
concrete erection work, or residential construction.  

Citation 1 Item 1(a) alleges that Respondent failed to implement an acceptable
fall protection system at the 21-foot opening in the demolition area on the third floor of
Hangar Five. (Tr. 26; Ex. 7). In calculating the proposed $1,875 penalty, CSHO
Goodman concluded there was a high severity of injury, but a low probability of an
actual accident. (Tr. 35). She also applied a 15% penalty reduction for the Respondent's
good faith during the inspection, and an additional 10% reduction for Respondent's lack
of violations in the past three years. (Tr. 36).

Discussion

To establish a prima facie violation of the Act, the Secretary must prove: (1) the
standard applies to the cited condition; (2) the terms of the standard were violated; (3)
one or more of the employer’s employees had access to the cited condition; and (4) the
employer knew, or with the exercise of reasonable diligence could have known, of the
violative condition. Ormet Corporation , 14 BNA OSHC 2134, 1991 CCH OSHD
¶29,254 (No. 85-0531, 1991).

Citation 1 Item 1(a)

The Secretary alleged in Citation 1 Item 1(a) that:

29 CFR 1926.501(b)(1): Each employee on a walking/working surface with an unprotected side or edge which was 6 feet (1.8 m) or more above a lower level              was not protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems:

(a) Third Floor Loading Zone, where the demolition work area and passageway were located adjacent to an unguarded open sided floor located 36½ feet above              the lower level. Hazard: Fall from elevation.

The cited standard provides:

Unprotected sides and edges. Each employee on a walking/working surface  

(horizontal and vertical surface) with an unprotected side or edge which is 6 feet  

(1.8 m) or more above a lower level shall be protected from falling by the use of

guardrail systems, safety net systems, or personal fall arrest systems.  

CSHO Goodman is correct that the cited standard provides for only three types of
fall protection: guardrails, safety nets, or personal fall arrest systems. Other regulations
recognize different types of acceptable fall protection methods if specific types of work
activities are being performed. As discussed above, Respondent’s own supervisors
testified that the wire rope stretched across the opening did not constitute an adequate
guard rail system, that the Bobcat operator's use of a seat belt did not constitute fall
protection, that the floor opening was not a leading edge, and that "warning line systems"
referenced in §1926.500 apply only to roof work. I also concluded above that
Respondent was not engaged in the type of activities referenced by the controlled access
zone regulation [29 C.F.R. §1926.502(g)]: bricklaying, leading edge work, precast
concrete erection work, or residential construction. The record establishes that there was
no safety net system at this location. There was some testimony about the presence of a
fall restraint, or “yo-yo” system, available for employee working inside the red-taped
area. However, the record indicates that the Bobcat operator was not required to use the
fall restraint system while in the Bobcat pushing debris over the edge. (Tr. 75-76, 80, 83-84, 95). Furthermore, CSHO Goodman testified that there was no such fall restraint
system installed at the time of her inspection. (Tr. 26-28, 47). The preponderance of the
evidence establishes that Respondent failed to implement one of the three acceptable
methods of fall protection at this location. The terms of the cited standard were violated.

To prove employee exposure to a violative condition, Complainant must establish
that Respondent = s employees were either actually exposed or that it was A reasonably
predictable either by operational necessity or otherwise (including inadvertence), that
employees have been, are, or will be in the zone of danger. @ Fabricated Metal Prods ., 18
BNA OSHC 1072, 1995-1997 CCH OSHD & 31,463 (No. 93-1853, 1997). The record
establishes that the Bobcat operator’s responsibilities on this floor required him to cross
the boundary of red tape and push debris over the inadequately protected edge. During
this process, the Bobcat operator came within 3½ feet of the opening. (Tr. 96-97).
Therefore, the Bobcat operator’s activities alone establish employee exposure to the fall
hazard.

Superintendent Tomaras was aware of the condition of this opening prior to the
inspection. (Tr. 75-76). Knowledge of this violative condition is imputed through him to
the Respondent. A.P. O = Horo Co. , 14 BNA OSHC 2004, 1991 CCH OSHD & 29,223 (No.
85-0369, 1991).  

In order to establish a “serious” violation of the Act, the Secretary must establish
that there was a substantial probability that death or serious physical harm could result
from the cited condition if an accident occurred. “In determining whether a violation is
serious, the issue is not whether an accident is likely to occur; it is rather, whether the
result would likely be death or serious harm if an accident should occur.” Whiting-Turner
Contracting Co., 13 BNA OSHC 2155, 1989 CCH OSHD ¶28,501 (No. 87-1238, 1989).
There is little doubt that a fall from a height of thirty-six feet would have resulted in
serious physical harm or death. Citation 1 Item 1(a) was properly characterized as a
serious violation. Accordingly, Citation 1 Item 1(a) will be affirmed.

Penalty

In calculating the appropriate penalty for the violation, Section 17(j) of the Act
requires the Commission to give A due consideration @ to four criteria: (1) the size of the
employer's business, (2) the gravity of the violation, (3) the good faith of the employer,
and (4) the employer's prior history of violations. 29 U.S.C. ' 666(j) . Gravity is the
primary consideration and is determined by the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the likelihood of an
actual injury. J.A. Jones Construction Co. , 15 BNA OSHC 2201, 1993 CCH OSHD
& 29,964 (No. 87-2059, 1993). Based upon the facts and discussion above, the court
finds that a penalty of $1,875.00 is appropriate for the violation.

Affirmative Defenses

Respondent did not argue the merits of any affirmative defenses in its post-hearing brief. Therefore, the affirmative defenses identified in Respondent's September
12, 2008 letter to the court are deemed abandoned.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that Citation 1 Item 1(a) is AFFIRMED and a penalty of $1,875.00 is
ASSESSED.

/s/  

BENJAMIN R. LOYE

Judge, OSHRC

Date: January 8, 2010

Denver, Colorado