Winesburg Builders, LLC

Plain-English summary

Winesburg used a visibly cut and frayed nylon sling, with its safety thread showing, to lift construction beams. The judge rejected the company's argument that the sling was not defective because later testing showed it could withstand a 6,000-pound load. A foreman must be able to identify defective rigging from visible condition without laboratory testing, and employees were exposed when they physically guided suspended loads into place. The foreman's knowledge was imputed to the company. The serious violation was affirmed with a reduced $600 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.251(a)(1)
• Outcome: The serious citation was affirmed and a $600 penalty was assessed.
• Key point: Visible cuts, fraying, and exposed safety thread can establish that rigging is defective even if later tensile testing does not produce a failure.

Full text (OSHRC public release)

                                          United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 10-2122
Winesburg Builders, LLC,
Respondent.

Appearances:

      Paul Spanos, Esq., U. S. Department of Labor, Office of the Solicitor,, Cleveland, Ohio
      For Complainant

      Tom Henry, Representative, Bolivar, Ohio,
      For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                      DECISION AND ORDER
      Winesburg Builders, LLC, contests a one-item citation issued to it by the Secretary on

September 23, 2010. The citation alleges a serious violation of 29 C. F. R. § 1926.251(a)(1), for
failing to remove defective rigging equipment from service. The Secretary proposed a penalty of
$1,785.00 for this item. Occupational Safety and Health Administration (OSHA) compliance officer
Richard Burns recommended the citation based on his inspection of a construction site where
Winesburg was working on September 17, 2010, in Hilliard, Ohio.
Winesburg timely contested the citation. This case was designated for Simplified
Proceedings under Subpart M (§§ 2200.200-211) of the Commission’s Rules of Procedure. The
undersigned held a hearing in this matter on Wednesday, January 19, 2011, in Columbus, Ohio. The
parties stipulated to jurisdiction and coverage (Tr. 8). The parties have filed post-hearing briefs.
Winesburg argues the Secretary failed to establish the rigging equipment was defective.
For the reasons discussed below, the undersigned affirms Item 1 of Citation No. 1, and
assesses a penalty of $600.00.
 Background
On September 17, 2010, compliance officer Richard Burns inspected a construction site on
Mill Run Drive in Hilliard, Ohio. Burns’s inspection was in accordance with the University of
Tennessee’s Dodge Report. The construction project consisted of approximately 26 multi-family
homes, along with a club house and a swimming pool. Burns held an opening conference with the
project’s general contractor, and then proceeded to conduct a walk-around inspection of the site
(Tr. 14-15).
Winesburg is a framing contractor that had been hired to work on the project. At the time
of Burns’s inspection, Winesburg was in the process of framing the clubhouse. Winesburg owner
Reuben Schlabach and foreman Wes Hershberger were on the site. Burns noticed a nylon sling lying
on the ground. The sling was cut and frayed, and the manufacturer’s safety thread was showing in
places. Hershberger told Burns he had used the sling to make a lift the day before (Exhs. C-1A,
C-1B, and C-2; Tr. 15-18). Winesburg had used the sling to make at least two other lifts on the site
(Tr. 49).
Hershberger agreed with Burns that the sling should be removed from service. An employee
removed the sling and threw it into a dumpster on site. At some point, Schlabach called one of his
employees and asked him to retrieve the sling. The employee brought the sling to Schlabach’s
house. Schlabach then gave the sling to Tom Henry, who represented Winesburg in this proceeding
(Tr. 81-82). Henry mailed the sling to American Testing Services, Ltd., in January 2011, for tensile
strength testing (Exh. R-1).
The Citation
The Secretary has the burden of establishing the employer violated the cited standard.
To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies; (2) the employer
failed to comply with the terms of the cited standard; (3) employees had access to the
violative condition; and (4) the cited employer either knew or could have known with
the exercise of reasonable diligence of the violative condition.

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

                                             -2-

Item 1: Alleged Serious Violation of 29 C. F. R. § 1926.251(a)(1)
The citation alleges, “On the site where a defective nylon sling was used to lift beams, the
rigging equipment was not removed from service.”
Section 1926.251(a)(1) provides:
Rigging equipment for material handling shall be inspected prior to use on each shift
and as necessary during its use to ensure that it is safe. Defective rigging equipment
shall be removed from service.

                           (1) Applicability of the Cited Standard
    Section 1926.251 addresses “Rigging equipment for material handling.” Winesburg attached

two nylon slings, including the one at issue, to an extendable forklift and used them to lift a porch
beam on September 16, 2010 (Tr. 47-50). The nylon sling is rigging equipment and was used to
handle the porch beam. The cited standard applies to the cited condition.
(2) Compliance with the Terms of the Standard
The Secretary contends the nylon sling was visibly damaged, with the manufacturer’s safety
thread showing in several places. Thus, she argues, the sling was defective and should have been
removed from service.
Winesburg contends the Secretary failed to establish the sling was defective. The company
states that the sling was rated to lift 6,000 pounds, and the porch beam weighed approximately
300 pounds. The heaviest lift made with the sling was approximately 1,000 pounds. Winesburg
contends there is no evidence the sling was at risk to fail.
Winesburg takes the position that a sling is not defective until it creates a hazard that could
cause serious physical harm. Winesburg claims this occurs when a sling actually reaches its breaking
point. The company contends the sling at issue had not reached its breaking point, based on testing
conducted by American Testing Services, Ltd. (ATS).
Winesburg representative Tom Henry sent the sling (retrieved from the dumpster) to ATS
in Dayton, Ohio. On January 11, 2011, ATS conducted tensile strength testing on the strap. The
“Metallurgical Laboratory Report” issued by ATS provides the following information (Exh. R-1,
bolding and italics in original):

                                              -3-

Report on: One (1) Lifting Strap submitted for Tensile Testing

     Sample Identification: The strap is damaged in loop area.

     Test Procedure: The strap was loaded in the tensile machine using a fixture that
     allowed applying a load through a horizontal 1.125 inch diameter bar.

     Test Results: The strap withstood an actual 6000 lb tensile load without failure.
     None of the strands appeared to break during testing. The test was stopped at the
     load limit of the fixture.1

     Winesburg’s reliance on ATS’s test results is misplaced. Winesburg’s belief the probability

of the sling breaking was slight is irrelevant to whether a hazard exists. “The proper inquiry is the
probability that the resulting harm will be death or serious physical harm.” Automatic Sprinkler
Corporation of America, 8 BNA OSHC 1384, 1390 (No. 76-5089, 1980).
The standard at issue, § 1926.251(a)(1), presumes a hazard when its terms are not met.
“Defective” is not defined in the standards. Webster’s Third New International Dictionary defines
the word as: “wanting in something essential; falling below an accepted standard or requirement in
soundness of form or structure . . . or in adequacy of function.”
A foreman overseeing a construction site must be able to inspect a piece of rigging equipment
and determine whether or not it needs to be removed from service. The presence of cuts, frays, and
a visible safety thread on a sling used to lift heavy loads informs a reasonable person that the sling
has fallen below the accepted requirement for adequacy of function. Laboratory testing is not
required to determine that a piece of rigging equipment is defective. Hershberger acknowledged the
sling was defective and should have been removed from service (Exh. C-3).

1
Because this case was tried under Simplified Proceedings, the Federal Rules of Evidence do not apply, and the
hearing was less formal than a conventional OSHRC proceeding. Even so, the undersigned gives no weight to the
ATS lab report. No one from ATS testified, and the chain of custody of the sling and the methodology of the testing
were not established. W inesburg provides additional information regarding ATS and its accreditation in its brief, but
this information was not adduced at the hearing and cannot be considered as evidence. If the ATS report were given
weight, it would help bolster the Secretary’s case in one respect. The photograph attached to ATS’s lab report shows
the loop of the sling is cut almost halfway across its width (Exh. R-1).

                                                     -4-

Based upon Burns’s testimony, Hershberger’s written statement, and the photographs of the
sling introduced into evidence, the Secretary established the sling was defective and Winesburg
failed to remove it from service. Winesburg failed to comply with the terms of § 1926.251(a)(1).
(3) Employee Access
Hershberger testified the loads attached to the defective sling were raised to a height of 8 to
10 feet. When asked about the proximity of employees to the load, Hershberger responded, “During
the lift, usually we try to stay 5 or 6 feet away” (Tr. 61). Once the load is lifted and moved to the
area of its final location, however, employees must push the load into place and prop posts
underneath it (Tr. 67). At this point, the load is supported by the defective sling, and the employees
are close enough to have physical contact with the load. Winesburg did not use tag lines to help
stabilize the load and prevent it from swinging during the lift (Tr. 65). The Secretary has established
employee exposure.
(4) Employer Knowledge
Winesburg had actual knowledge the defective sling was being used. Hershberger was the
foreman on the site. As foreman, his knowledge is imputed to Winesburg. “[W]hen a supervisory
employer has actual or constructive knowledge of the violative conditions, that knowledge is
imputed to the employer, and the Secretary satisfies [her] burden of proof without having to
demonstrate any inadequacy or defect in the employer’s safety program.” Dover Elevator Co.,
16 BNA OSHC 1281, 1286 (No. 91-862, 1993).
Hershberger knew the sling was being used to make lifts, and he was present on
September 16, 2020, when the sling was used to lift the porch beam. In his written statement to
Burns, Hershberger acknowledged, “Sling should have been thrown out. Several cuts on sling and
safety thread showing” (Exh. C-3).
The Secretary has established Winesburg knew of the use of the defective sling, and she has
proven each of the elements of the alleged violation. She classified Item 1 as serious. Under § 17(k)
of the Act, a violation is serious “if there is a substantial probability that death or serious physical
harm could result from” the violative condition. If the defective sling had broken during a lift, the
employees in the area could have been struck by the falling load. The record establishes one of the
loads weighed approximately 300 pounds, and another weighed approximately 1,000 pounds. If

                                              -5-

employees were struck by either of these loads, death or serious physical harm would likely result.
The Secretary properly classified the violation as serious.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. “In assessing
penalties, section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to give due
consideration to the gravity of the violation and the employer’s size, history of violation, and good
faith.” Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). “Gravity is a
principal factor in a penalty determination and is based on the number of employees exposed,
duration of exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy
and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).
Winesburg employed fewer than 50 employees. The Secretary had issued citations to the
company in the three years prior to the instant inspection. Winesburg demonstrated good faith in
this proceeding. Burns testified the company has a good safety program (Tr. 23).
The gravity of the violation is moderate. Hershberger testified the sling had been on site for
three or four weeks before Burns’s inspection. During that time, Winesburg had made a total of
three lifts with the sling (Tr. 59-60). The lifts lasted 10 to 15 minutes (Tr. 71). Winesburg used two
straps to make the lifts. There is no evidence the other strap was defective. It is determined a
penalty of $600.00 is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that Item 1 of Citation No. 1, alleging
a serious violation of 29 C. F. R. § 1926.251(a)(1), is affirmed, and a penalty of $600.00 is assessed.

                                                         /s/ Sharon D. Calhoun
                                                   SHARON D. CALHOUN
                                                   Judge

Date: February 28, 2011
Atlanta, Georgia

                                             -6-