Hayward Baker, Inc.

Plain-English summary

Hayward Baker employees loaded steel casing onto a drill shaft while installing soil nails for a retaining wall. When a casing was difficult to align, the shaft moved as an employee handled it, catching and crushing his hand at an unguarded pinch point. The judge found that moving the shaft while loading casing was an established work practice known to the site superintendent. Hayward's general warnings about pinch points did not explain how to load a stuck or difficult casing without exposure to the hazard. Both serious items were affirmed with a grouped penalty of $7,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.300(b)(2); 29 C.F.R. § 1926.21(b)(2)
• Outcome: The machine-guarding and training items were affirmed as serious, with a $7,000 penalty.
• Key point: General safety warnings are insufficient when employees need specific instructions for avoiding a known pinch point during a routine task.

Full text (OSHRC public release)

                                     United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 12-0859
HAYWARD BAKER, INC.
Respondent.

APPEARANCES:

    Susan B. Jacobs, Esquire, U.S. Department of Labor, New York, New York
           For the Secretary

    Michael J. Vollbrecht, Esquire, Gordon & Rees, LLP, New York, New York
          For the Respondent

BEFORE: Carol A. Baumerich
Administrative Law Judge

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

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 659 (“the Act”). On October 26, 2011, the Occupational Safety and Health
Administration (“OSHA”) inspected a worksite of Hayward Baker, Inc. (“Respondent” or
“Hayward”). The inspection was in response to a reported accident at a worksite in East
Syracuse, New York (“worksite” or “Bridge Street project”). OSHA issued a serious citation to
Hayward on March 2, 2012. Hayward filed a timely notice of contest, bringing this matter
before the Commission. A hearing was held in Syracuse, New York on October 15, 2012. Both
parties filed post-hearing briefs.
The following individuals testified at the hearing: Douglas Combes, injured employee;
Frank Stosal, Site Superintendent for Hayward; Michael Grant, Area Manager for Hayward;
Bryan Schertz, corporate safety director for Hayward; David Pacini, OSHA Compliance Officer
(“CO”) ; and Christopher Adams, OSHA’s Syracuse office Area Director.1
Stipulated Facts
The parties’ joint pre-hearing statement stipulated the facts listed below.

1. Respondent Hayward Baker, Inc., is a corporation organized under the laws of the State of
   Delaware, does business in the State of New York, and maintains its principal office at 1140
   Annapolis Road, Suite 202, Odenton, Maryland.

2. Respondent Hayward Baker, Inc., is engaged in geotechnical construction activities.

3. Respondent Hayward Baker, Inc., was and is engaged in a business affecting commerce
   within the meaning of sections 3(3) and 3(5) of the Occupational Safety and Health Act of 1970
   (the “Act”).

4. Respondent Hayward Baker, Inc., is an employer within the meaning of section 3(5) of the
   Act.

5. On October 26, 2011, employees of Respondent Hayward Baker, Inc., were performing work
   including drilling operations at a job site located at Bridge Street (under the 690 overpass), East
   Syracuse, New York 13057.

6. Douglas Combes, an employee of Respondent Hayward Baker, Inc., was injured while
   working at the job site located at Bridge Street (under the 690 overpass), East Syracuse, New
   York, on October 26, 2011.

7. On or about March 2, 2012, Complainant issued one citation with one item to Respondent
   alleging violations at a worksite located at Bridge Street (under the 690 overpass), East Syracuse,
   New York, with a total proposed penalty of $7,000.00.

8. Respondent Hayward Baker, Inc., has contested the Citation issued by Complainant.

                                  Background and Relevant Facts
     At the time of the accident, Hayward was using a Davey Drill to install (drill) soil nails
   

   at its Bridge Street project. (R. Br. 2; Tr. 11). Hayward was nearly finished with this job; it was
   half-way through the last of three rows of soil nails. (Tr. 97). The soil nails were a structural
   component in the construction of a concrete retaining wall at the worksite. The soil nail drilling

1
The transcript is amended to reflect the corrections listed on the errata sheet filed with the Secretary’s post-hearing
brief. The Secretary and Respondent agreed to the errata sheet suggested corrections. The transcript corrections
include page 70, line 7, change from “unguarded,” to “guarded,” and page 85, line 3, change from “(indiscernible),”
to “FOM.”

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process entailed: (1) loading 15 feet of casing 2 onto a drill shaft to be connected to the drill
head; (2) drilling the casing 12 to 15 feet into the ground; 3 (3) leaving the casing in the hole; (4)
filling the hole with grout / concrete; (5) inserting a bar into the hole as an anchor; and (6) then
removing the casing from the hole for re-use. (Tr. 11-12, 92, 132, 149; Exh. CX-3 at 1).
To connect the casing to the drill head, the first 5-foot casing section is slid onto the drill
shaft; it is moved into place between the jaws, and the jaws then clamp down and hold the casing
in place as the drill head is screwed onto the casing. The next 10-foot section of casing is then
slid onto the shaft and screwed onto the first section to form a 15-foot long casing. (S. Br. 3; Tr.
142-43). Mr. Stosal and Mr. Grant both testified that the 5-foot section was generally loaded
onto the drill shaft by hand and the 10-foot section by forklift. (Tr. 93, 98, 124-25, 142-44). Mr.
Combes testified he had used this method to load casings throughout the project. (Tr. 19).
On the morning of accident, Mr. Combes was installing casings on the drill shaft for soil
nailing. Mr. Combes credibly testified that he performed the task of installing casings on the
drill rod that day exactly as he had been trained. Mr. Stosal was the site superintendent at the
Bridge Street project. Mr. Stosal was at the other end of the 5-foot casing, near the jaws, to
assist Mr. Combes. Another employee was operating the controls on the Davey Drill. Mr.
Combes was injured while he was loading the 5-foot section of casing over the drill shaft. (Tr.
20-23, 90, 99-101).
Mr. Combes testified that he had trouble getting the 5-foot section of casing to properly
line up with the jaws. Mr. Combes testified he had made sure there was no dirt or other
obstructions that would prevent the casing from loading onto the drill shaft. Mr. Stosal was
present during this time and would have been aware that this casing was difficult to load. While
moving the can toward the jaws, he signaled to the operator to move the drill shaft up and down
(“stroking”) in an attempt to get the casing between the jaws. During the movement of the drill,
Mr. Combes’ hand became caught in the area between the casing and the drill shaft. Mr.
Combes believes that loose threads on his glove got caught and then pulled his hand into the
pinch point. The operator immediately shut down the machine. Mr. Stosal saw the drill shaft’s
movement and immediately heard Mr. Combes’ scream. To free Mr. Combes’ hand, a sling was

2
This component was variously referred to as a can, casing, sleeve, or canister. (Tr. 148-149).
3
The drill shaft was also described as the hammer, drill rod, or drill steel.

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hooked onto the casing and the casing was then pulled off using a service winch. Mr. Combes’
hand was trapped for about 30 minutes resulting in a crushed thumb. 4 (Tr. 17-21, 33-35, 99-100).
Jurisdiction
Based upon the record, I find that at all relevant times Hayward was engaged in a
business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5)
of the Act. I also find that the Commission has jurisdiction over the parties and subject matter in
this case.
Citation
The Secretary’s Burden of Proof
To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited
standard applies; (2) the terms of the standard were violated; (3) one or more 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. Astra Pharm. Prod., 9 BNA OSHC
2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).
Citation 1, Item 1(a)5
This item alleges a serious violation of 29 C.F.R. § 1926.300(b)(2), which states:
Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or
other reciprocating, rotating or moving parts of equipment shall be guarded if
such parts are exposed to contact by employees or otherwise create a hazard.
Guarding shall meet the requirements as set forth in American National Standards
Institute, B15.1-1953 (R1958), Safety Code for Mechanical Power-Transmission
Apparatus.

     The actual or constructive knowledge of an employer’s foreman can be imputed to the

employer. See N&N Contractors, Inc., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000)
(citations omitted). Here the employer’s site superintendent, Mr. Stosal, was standing near Mr.
Combes at the time of the accident and knew he was loading the casing onto the drill shaft by
hand. I find Hayward had knowledge of the violative condition through Mr. Stosal.

4
At the time of the hearing, Mr. Combes was scheduled to have a wrist replacement and his thumb amputated
because it was not healing properly. (Tr. 21).
5
The Secretary amended citation 1, item 1(a) to allege a violation of 29 C.F.R. 1926.300(b)(2). (Tr. 5, 50-51; Exh.
CX-2, Complaint, para. 5). This citation item had originally been alleged as a violation of 29 C.F.R.
1926.300(b)(4)(ii). (Tr. 50, 69; Exh. CX-1 at 5).

                                                      4

Hayward argues that the standard is not applicable because there was no exposure to
moving parts while loading the casing. (R. Br. 4-5). For the following reasons, I find that the
standard does apply, that its terms were violated, and that there was actual employee exposure.
Hayward asserts there was no exposure to a moving part because the company’s
procedure requires an employee to step away before the drill shaft is moved. (R. Br. 4-5). The
events of the accident contradict Hayward’s assertion. The drill shaft did move while Mr.
Combes was loading the casing onto the drill shaft. He was injured when his hand was caught in
a pinch point between the casing sleeve and the drill shaft. I find the drill shaft was a moving
part and the standard is applicable. I also find that Mr. Combes was exposed to a moving part.
Hayward asserts that this work activity (loading the casing) is excluded by the
incorporated ANSI standard.6 Hayward argues that the casing, after it is installed, is a point of
operation7 during the soil drilling process and therefore excluded from the scope of ANSI
B15.1.8 (R. Br. 5-6). However, the casing was not in its functional operating position; it was
being installed at the time of the exposure and accident. I find that Mr. Combes was not working
at a point of operation when installing the casing; therefore, the exclusion set out in ANSI B15.1
is not relevant to this matter.
It is undisputed that the pinch point Mr. Combes was exposed to was not guarded. (Tr.
146-47). At the hearing, Hayward seemed to argue that there are no guards available for this
particular pinch point or work activity. (Tr. 141-42). However, Hayward did not raise the
affirmative defense of infeasibility in its answer or its subsequent pleadings. 9 Rule 34(b)(3) of
the Commission’s Rules of Procedure requires an employer to raise an affirmative defense in its

6
In its Answer, Hayward raised an affirmative defense that the Safety Code for Mechanical Power-Transmission
Apparatus, American National Standards Institute, B15.1-1953 (R1958), (“ANSI B15.1”) consensus standard was
inapplicable. Hayward did not seek to have this document admitted into the record.
7
“Point of operation is the area on the machine where work is actually performed upon the material being
processed.” 29 C.F.R. § 1926.300(b)(4)(i). The ANSI B15.1 definition is “[t]he term ‘point of operation’ shall be
understood to mean that point at which cutting, shaping, or forming is accomplished upon the stock and shall
include such other points as may offer a hazard to the operator in inserting or manipulating the stock in the operation
of the machine.” ANSI B15.1 at 12.
8
The scope of ANSI B15.1 reads as follows: “This code applies to all moving parts of equipment used in the
mechanical transmission of power, including prime movers, intermediate equipment and driven machines, excluding
point of operation.” ANSI B15.1 at 9.
9
To succeed in an infeasibility defense, an employer must “prove that (1) the means of compliance prescribed by
the applicable standard would have been infeasible under the circumstances 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) either (a) an alternative method of
protection was used, or (b) there was no feasible alternative means of protection.” Armstrong, 17 BNA OSHC at
1387.

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answer. See Armstrong Steel Erectors, Inc., 17 BNA OSHC 1385, 1387 (No. 92-262, 1995)
(“Armstrong”) (citations omitted). Further, the Secretary’s objection at the hearing shows there
was no consent to try this defense. (Tr. 144). I find that the defense of infeasibility was not tried
by the parties and, therefore, I will not consider it in my decision. 10
Mr. Combes’ testimony was credible and trustworthy. I credit Mr. Combes’ testimony
regarding the events that occurred on the day of the accident. (Tr. 17-35). Based on his
inspection interviews, CO Pacini’s understanding of the events is consistent with Mr. Combes’
description. (Tr. 48, 54). The testimony of Hayward’s Area Manager, Mr. Grant, showed his
accident report also supported Mr. Combes’ description of the work activity. (Tr. 138-40; Exh.
CX-4).11
With respect to the practice of “stroking” the drill rod to move the casing into the jaws,
evidence indicates this was not uncommon. Mr. Grant’s and Mr. Stosal’s testimony confirm that
it was standard practice for the 5-foot casing section to be loaded by hand. (Tr. 93, 98, 124-25,
142-44). The drill operator’s understanding of Mr. Combes’ head and voice signals shows a
pre-established understanding of the work practice. (Tr. 18-19).12 Finally, Mr. Stosal made no
effort to stop or correct Mr. Combes’ actions of giving head and voice signals to the drill
operator to stroke the drill rod, even though Mr. Stosal was present to assist Mr. Combes and
would have been aware of the difficulty Mr. Combes encountered in loading this casing. (Tr. 99-
100).13
For the reasons set out above, I find that the Secretary has met her burden and shown that
Hayward violated the standard. This citation item is affirmed as a serious violation.

10
Further, the Commission has held that it is not necessary for the Secretary to show whether it is possible for a
guard to be placed on a machine; that burden rests on the employer. Buckeye Indus., Inc., 3 BNA OSHC 1837,
1839-40 (No. 8454, 1975) aff’d on other grounds, 587 F.2d 231 (5th Cir. 1979).
11
Mr. Stosal’s testimony is not credited, where his recollection differs from that of Mr. Combes. The record reveals
that Mr. Stosal’s recollection of exactly what happened on the day of the accident had faded. (Tr. 122. See also Tr.
97).
12
The record reveals that it was common practice for employees to communicate with the drill operator by
signaling. (Tr. 18-19, 30, 35, 39, 95, 106-07, 115-16; Exhs. JX-2, JX-3; CX-4, RX-4, RX-11, RX-16). Employees
present at the time of the accident corroborate that Mr. Combes signaled the drill operator to slide the drill head.
(Exh. CX-4)
13
Mr. Stosal testified that on the day of the accident he did not know why the drill rod was moving. (Tr. 100). He
testified that on this “particular loading” it was not normal for the drill rod to move back and forth while an
employee was loading the casing. He stated that the drill rod would not move while an employee was touching a can
“unless we had a different plan.” (Tr. 95, 100, 123-24). (Emphasis supplied). Mr. Stosal did not testify regarding
how employees in the field handled difficult to load casings. The only suggestion in his testimony regarding how
this situation would be handled was his reference to a “different plan” involving the drill rod moving while an
employee was touching a casing.

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Citation 1, Item 1(b)
This item alleges a serious violation of 29 C.F.R. § 1926.21(b)(2), which states:
The employer shall instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work environment to
control or eliminate any hazards or other exposure to illness or injury.

    The parties do not dispute that the cited standard is applicable and that an employee was

exposed to the cited hazard. Further, Hayward’s knowledge of the hazard of pinch points and
that the “[c]asing can catch clothing, pull man into machine” is shown in the job hazard analysis
for the Bridge Street project. (Tr. 63; Exh. JX-2 at 20. See also, Exhs. JX-1 at 1, JX-3). I find
that Hayward knew of the hazards associated with this work activity. The issue in dispute here is
whether Hayward’s training program meets the requirements of the cited standard.
To prove a violation of 1926.21(b)(2), the Secretary must show that the cited employer
failed to instruct employees on “(1) how to recognize and avoid the unsafe conditions which they
may encounter on the job, and (2) the regulations applicable to those hazardous conditions.”
O’Brien Concrete Pumping, Inc., 18 BNA OSHC 2059, 2061(No. 98-0471, 2000) (“O’Brien”)
(citations omitted). “An employer’s instructions must be ‘specific enough to advise employees
of the hazards associated with their work and the ways to avoid them,’ and modeled on the
applicable OSHA requirements.” Id. The Secretary must show “that the cited employer failed to
provide the instructions that a reasonably prudent employer would have given in the same
circumstances.” Compass Envtl., Inc., 23 BNA OSHC 1132, 1134 (No. 06-1036, 2010), aff’d,
663 F.3d 1164, 1168 (11th Cir. 2011) (“Compass”) (citations omitted).14
Hayward argues that it “met its obligation of informing its employees of the hazards
involved with sliding a casing onto the Davey Drill drill rod and up to the jaws.” (R. Br. 9). It
asserts that training on the hazards of pinch points and rotating parts was routinely provided to its
employees. (R. Br. 8-9). Hayward argues that Mr. Combes was properly trained; he simply
chose to not follow proper procedure.15 (R. Br. 8).

14
Hayward also cites to a judge’s decision to support its position that there is no requirement for an employer to
“effectuate” training instructions. (R. Br. 9, citing to Danis Shook Joint Venture XXV, 1999 WL 1278172
(OSHRCALJ). However, the judge’s decision that Hayward relies on was subsequently overruled by the
Commission and is therefore not a final order of the Commission. Danis Shook Joint Venture XXV, 19 BNA OSHC
1497, 1500-01 (No. 98-1192, 2001), aff’d, 319 F.3d 805 (6th Cir. 2003) (“Danis”).
15
Hayward did not assert the affirmative defense of unpreventable employee misconduct. See discussion above in
regard to affirmative defenses that are not properly raised.

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Hayward does have routine safety training and safety manuals. (Exh. RX-18, 19; JX-1).
Hayward had a site specific job hazard analysis. (Exh. JX-2). It had daily task analysis sheets for
a review of hazards each day. (Exh. JX-3). Hayward’s job hazard analysis for the Bridge Street
project notes that loading the casing was a potential hazard (“casing can catch clothing, pull man
into machine”). (Exh. JX-2 at 20). Mr. Grant testified it was a routine practice to load the 5-foot
casing onto the drill shaft by hand; however, he offered no testimony that training was conducted
on how to avoid the pinch points while loading the casing. 16 (Tr. 142).
In particular, training did not include a method, means, or process to load a casing and
not be exposed to a pinch point when the casing is stuck or difficult to load. In other words,
there was no training on how to deal with the routine problem of a stuck or difficult-to-load
casing. The employer’s daily task sheets show that soil nailing was a routine activity at this
work site. (Exh. RX-4, 6, 9, 11-13, 15-16). Testimony shows that Hayward just gave the general
warning to avoid pinch points. (Tr. 19, 111-12 ).
The plain language of the standard and Commission case law require more. The standard
states that training should instruct an employee to recognize and avoid unsafe conditions and that
the employee must be trained on how to control or eliminate the hazards. Here, no training was
provided on how to load a casing by hand to avoid the pinch points, including difficult to load
casings, and I find that a simple warning to avoid the pinch point is inadequate.
The Commission’s decisions in Danis and O’Brien are instructive. In Danis, the
Commission found the employer’s training program was inadequate because it did not give
specific instructions on how to recognize and avoid the particular hazard at issue. Danis, 19
BNA OSHC at 1500-01. In O’Brien, the Commission found that the employer did provide
training and a general warning; however, the training did not include instructions on OSHA’s
guarding requirements and the employer did not provide specific safety instructions on the work
activity, leaving each employee to develop his own methods. O’Brien, 18 BNA OSHC at 2061.

16
Hayward asserts that the evidence shows the process it used represented industry practice and was designed to
prevent the accident that occurred. (R. Br. 8). However, I have reviewed the transcript pages Hayward cites to
support this position and find the testimony was not about the industry’s standard practice for this work activity. (Tr.
145-46). Hayward’s Area Manager did testify that he had spoken with competitors after the accident about the
availability of guards for this work activity. (Tr. 141-42). Further, Hayward’s Corporate Safety Manager testified
that he discussed the accident with other drilling contractors to learn if they had experienced a similar accident and,
if so, had they been able to correct the situation. He did not testify regarding what, if any, response he received to
his inquiries. Rather, he generally testified that his conversations with competitors did not prompt Hayward to
develop any new policies or procedures. (Tr. 164-65).

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Similarly, Hayward did not provide training on how to avoid a pinch point while engaged
in a routine work practice (loading the casing). I recognize that Hayward has a generally
beneficial safety program. The testimony of its employees and managers supports the claim that
Hayward takes its safety responsibilities seriously. However, this unfortunate accident reveals a
significant gap in its training instructions for this routine work activity. There is no evidence that
training was provided on the requirements of the OSHA standard or how to load a casing
(especially a difficult one) in a way to avoid the pinch points. I find Hayward’s instructions were
insufficient and did not provide a method to avoid the pinch-point hazards when loading a casing
onto the drill shaft; therefore, the instructions do not meet the requirements of the standard. I
find the Secretary has met her burden and proven a violation of the standard.17 This item is
affirmed as a serious violation.
Penalty

      Section 17(j) of the Act requires the Commission to give due consideration to four

criteria in assessing penalties: the size of the employer’s business, the gravity of the violation,
the employer’s good faith, and its prior history of violations. Gravity is generally the primary
factor in the penalty assessment. See J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No.
87-2059, 1993).
The Secretary has classified both of the violations as serious and proposed a total penalty
of $7,000.00. A violation is classified as serious if “there is substantial probability that death or
serious physical harm could result” if an accident occurs. See Compass, 23 BNA OSHC at 1136.
Here, an employee suffered actual serious injury related to the violations. The serious
classification is therefore appropriate.
OSHA’s Area Director for its Syracuse office, Christopher Adams, testified that no
reductions were applied to determine the penalty amount. (Tr. 84-85). Hayward was not eligible
for a size reduction because it has 250 employees. No reduction was given for good faith, as the

17
Hayward further argues that the cited standard only requires it to provide the training; it does not require it to
enforce its own safety instructions. (R. Br. 9, citing to Dravo Eng’rs and Constructors, 11 BNA OSHC 2010, 2011-
12 (No. 81-748, 1984). However, the Commission has also stated that “an employer cannot wash its hands of all
responsibility to assure that the instructions given are understood. A reasonably prudent employer would attempt to
give instructions that can be understood and remembered by its employees.” Pressure Concrete Const. Co., 15
BNA OSHC 2011, 2017 (No. 90-2668, 1992). Regardless, I need not address this argument because this case is
related to the provision of adequate training.

                                                      9

violation was rated as a high gravity violation, and no reduction was given for history due to
Hayward’s prior OSHA violations. (Tr. 84-87; Exh. CX-5).
The Commission may provide a penalty reduction for good faith when considering the
employer’s safety and health program and its commitment to safety. Capform, Inc., 19 BNA
OSHC 1374, 1378 (No. 99-0322, 2001). Overall, Hayward has a useful, albeit insufficient,
safety training program. As discussed above, the program does not provide instructions for this
serious hazard. Therefore, I find a reduction for good faith is not appropriate. Id.
I find the proposed penalty appropriate. A penalty of $7,000.00 is assessed.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination of
the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of
fact and conclusions of law inconsistent with this decision are denied.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:
Item 1(a) of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.300(b)(2), and Item 1(b)
of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.21(b)(2) are AFFIRMED and a
penalty of $7,000.00 is assessed.

                                          /s/ Carol A. Baumerich
                                          Carol A. Baumerich
                                          Judge, OSHRC

Date: April 19, 2013
Washington, D.C.

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