Texas Erectors, Inc.

Plain-English summary

OSHA observed two Texas Erectors employees working more than 16 feet above the ground with harnesses that were not tied off. The company argued that the employees were connectors who did not need fall protection until 30 feet, but the judge found they were not placing or connecting structural members or using hoisting equipment during the cited period. The owner and foreman were in plain view of the condition, so their knowledge was imputed to the company. The Secretary withdrew a separate fall-protection item at the start of trial. The remaining serious steel-erection item was affirmed, and the proposed grouped penalty was reduced from $2,000 to $1,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.760(a)(1)
• Outcome: One item was withdrawn, the steel-erection fall item was affirmed, and a $1,000 penalty was assessed.
• Key point: The connector exception is narrow and does not cover employees who are merely walking or doing other work without placing or connecting steel with hoisting equipment.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

                     Complainant,
                                                          OSHRC DOCKET NO. 09-0171
                             v.

Texas Erectors, Inc.,

                     Respondent.

Appearances:

    Carlton Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
             For Complainant

    Harold E. Nutt, Texas Erectors, Inc., Hurst, Texas
            For Respondent

Before: Administrative Law Judge Benjamin R. Loye

                                    DECISION AND ORDER

                                         Procedural History

    This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. §651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)

conducted an inspection of a Texas Erectors, Inc. (“Respondent”) worksite in Dallas, Texas on

September 18, 2008. As a result of the inspection, OSHA issued a Citation and Notification of

Penalty to Respondent alleging two violations of the Act. Citation 1 Item 1(a) alleged a serious

violation of 29 C.F.R. §1926.501(b)(1). Citation 1 Item 1(b) alleged a serious violation of 29

C.F.R. §1926.760(a)(1). The Secretary proposed a grouped penalty of $2,000 for both

violations. Respondent timely contested the citation and an administrative trial was held on

April 2, 2009 in Dallas, Texas. At the beginning of trial, the Secretary voluntarily withdrew

Citation 1 Item 1(a), leaving only Citation 1 Item 1(b) in dispute. The Secretary filed a post-trial

brief. Respondent did not file a post-trial brief. This case is ready for disposition.
Jurisdiction

    Jurisdiction of this action is conferred upon the Occupational Safety and Health

Review Commission pursuant to Section 10(c) of the Act. The record establishes that at all

times relevant to this action, Respondent was an employer engaged in a business affecting

interstate commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. §652(5).

Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

                                     Factual Findings

   On September 18, 2008, Compliance Safety and Health Officer (“CSHO”) Josh Flesher,

of the Dallas Area Office of the Occupational Safety and Health Administration, drove by

Respondent’s jobsite on North Industrial Avenue in Dallas, Texas. (Tr. 10-11). He observed

what he believed to be fall protection violations during steel erection activities. (Tr. 11).

Pursuant to his office’s Regional Emphasis Program on fall hazards, he stopped and entered the

jobsite to conduct an OSHA inspection. (Tr. 10-11). After identifying himself to a representative

from the general contractor, he contacted Respondent’s owner, Harold Nutt, who happened to be

working at the jobsite that day. (Tr. 12, 14, 49).

   During the inspection, CSHO Flesher observed and photographed two of Respondent’s

employees, Robert Scroggins and Jose Garcia, working on the top level of an unfinished building

without using fall protection. (Tr. 16-19; Ex. A through O). The employees were wearing safety

harnesses, but the harnesses were not connected to anything. (Tr. 18, 80). CSHO Flesher

observed the two employees working on the roof without fall protection for approximately 30

minutes. (Tr. 29). The two employees were walking and working on building surfaces 16 feet 2

inches above the ground. (Tr. 23, 62).

   Mr. Nutt and Respondent’s foreman, Douglas Kerss, were photographed in plain view of

the two employees not using fall protection. (Tr. 16-19, 58; Ex. A through O). Respondent had

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“beamers” installed on the top level of the building, devices to which employees could secure

their harnesses to protect them from falls. (Tr. 64, 80). However, Mr. Nutt acknowledged that

neither of the two employees in the photographs was connected to the beamers at the time of the

inspection. (Tr. 64, 80).

   Respondent maintains that its employees were engaged in “connector” activities the

entire time, and therefore, fall protection was not required until they reached heights exceeding

30 feet pursuant to 29 C.F.R. §1926.760(a)(3) & (b). (Tr. 61-62). Respondent refers to the

language of the citation itself which states the employees were “installing a horizontal beam.”

(Tr. 63; Ex. P). Respondent argues that in steel erection, installing is connecting. (Tr. 63).

   When he initially arrived at the jobsite, CSHO Flesher observed Respondent’s employees

installing web joists, which he conceded was connector work pursuant to 29 C.F.R.

§1926.760(a)(3) & (b). (Tr. 39-40). However, Respondent’s employees stopped performing

connector activities and were simply walking and working on the structure while not using any

hoisting equipment or performing any type of connecting work. (Tr. 27, 97; Ex. A through O).

He acknowledged that at one point, the employees were using a SkyTrak (a type of hoisting

equipment), but they were removing a steel beam from the building. (Tr. 97; Ex. N, O).

Removal of structural steel is not encompassed by the definition of connector work.

Furthermore, Mr. Kerss testified that when employees are connecting, they use welding

equipment and/or bolting materials. (Tr. 93). The employees in the photographs were not using

welding equipment or bolting materials at the time of the alleged violation. (Ex. A through O).

   Respondent introduced additional photographs which depict employees working on other

areas of the building, at other times, connecting and welding steel. (Ex. R-3 through R-6).

However, the activity in those photographs is not alleged to constitute a violation of the cited

standard. CSHO Flesher testified that when employees stop performing connector work to

engage in other types of steel erection activity, they are required to use fall protection at heights

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above 15 feet. (Tr. 27, 97). Mr. Kerss corroborated CSHO Flesher’s position by testifying that if

Respondent’s employees have to wait 15 minutes or more in between connecting jobs, he

expects them to tie-off to the beamers. (Tr. 95).

   During the inspection, Mr. Nutt provided CSHO Flesher with Respondent’s written

safety and health program which required employee fall protection only when working 25 feet or

more above the ground. (Tr. 25-26). There was also a reference in that section of Respondent’s

safety and health program to OSHA’s promulgation of a new standard. (Tr. 25). CSHO Flesher

testified that §1926.760 was amended in 2002 to require fall protection during steel erection at

heights exceeding 15 feet. (Tr. 25, 46). The court’s review of the Federal Register indicates that

the amendment to the regulation was actually effective July 18, 2001. 66 FR 5196-01.

Apparently, Respondent’s safety and health program had not been updated to reflect the change

in the regulation.

   CSHO Flesher characterized the violation as serious on the basis that falls from 16 feet

could result in broken bones, serious internal injuries, or even death. (Tr. 31). In calculating the

proposed penalty of $2,000, CSHO Flesher considered that two employees were exposed to the

condition for approximately 30 minutes with no alternative form of fall protection. (Tr.31-32).

He characterized the likelihood of an actual accident as “great” because employees were working

near unprotected edges and one employee actually had one leg hanging off the building for a few

minutes. (Tr. 32). He reduced the initial penalty calculation by 60% for Respondent’s status as a

small employer (ten employees) but did not reduce the penalty calculation for history due to the

fact that Respondent received an OSHA citation in 2007. (Tr. 32-33). He provided no penalty

reduction for good faith during the inspection because Mr. Nutt was initially unwilling to provide

requested information, and Respondent’s written safety program incorrectly identified 25 feet as

the threshold height requiring fall protection. (Tr. 12-13, 33).

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                                       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

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

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

           29 CFR 1926.760(a)(1): Except as provided by paragraph (a)(3) of this

           section, each employee engaged in steel erection activity who was on a

           walking/working surface with an unprotected edge more than 15 feet (4.6-

           meters) above a lower level was not protected from fall hazards by

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

           positioning device systems, or fall restraint systems: On the steel beam at

           the existing building located at 921 North Industrial Avenue in Dallas,

           Texas 75207. On or about September 18, 2008, at least one employee who

           was installing a horizontal beam was not protected from falling

           approximately 15-feet 10-inches to the lower level.

   The cited standard provides:

           (a) General requirements: (1) Except as provided by paragraph (a)(3) of

           this section, each employee engaged in a steel erection activity who is on a

           walking/working surface with an unprotected side or edge more than 15

           feet (4.6 m) above a lower level shall be protected from fall hazards by

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

           positioning device systems or fall restraint systems.


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   It is undisputed that Respondent was engaged in steel erection activities more than 15 feet

above the ground. Therefore, the cited standard applies to the condition. The primary issue in

dispute is whether or not Respondent’s employees were engaged in connector activities pursuant

to the exception in §1926.760(a)(3). “Connector” is defined as “an employee who, working with

hoisting equipment, is placing and connecting structural members and/or components.” 29

C.F.R. §1926.751. Connecting work requires the use of fall protection only at heights “more

than two stories or 30 feet (9.1 m) above a lower level, whichever is less.” 29 C.F.R.

§1926.760(b).

   The exception for connecting activities was intended to be narrowly construed. 66 FR

5196-01. In Exhibits A through O, the photographs offered in support of Citation 1 Item 1(b), I

find that Respondent’s employees were not performing connector work. They were not placing

or connecting structural steel. They were not using hoisting equipment. They were not welding

or bolting structural steel. They were simply walking and working on top of the building, near

and sometimes partially overhanging from its edges, at a height of 16 feet, without fall

protection. The Secretary established a violation of the cited standard.

   Employee exposure to the violative condition was clearly established through the

investigative photographs and Mr. Nutt’s acknowledgement that the exposed employees worked

for Respondent. (Tr. 64; Ex. A through O). Knowledge of the employees’ lack of fall protection

on the part of the owner and foreman is imputed to the Respondent. A.P. O=Horo Co., 14 BNA

OSHC 2004, 1991 CCH OSHD &29,223 (No. 85-0369, 1991). Lastly, a 16 foot fall from the top

of a building onto the ground could undoubtedly result in serious physical harm or death.

                                  Affirmative Defenses

   Respondent did not argue any affirmative defenses at trial and did not submit a post-

hearing brief.

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                                          Penalty

   In calculating the appropriate penalty for a violation, Section 17(j) of the Act requires the

Commission to give Adue 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).

   Two employees were exposed to the condition for at least 30 minutes. CSHO Flesher

testified that one employee said they were working without fall protection all day prior to the

inspection, but no evidence was introduced regarding their precise locations or the type of work

they had been performing. (Tr. 29). Considering the totality of the circumstances, I find that a

penalty of $1,000 is appropriate for the violation.

                                         ORDER

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that

Citation 1 Item 1(b) is AFFIRMED and a penalty of $1,000 is ASSESSED.

Date: June 22, 2009 /s/__________
Denver, Colorado Benjamin R. Loye
Judge, OSHRC

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