Wheeling-Pittsburgh Steel Corp. (Commission decision, May 26, 1994)

Plain-English summary

Wheeling-Pittsburgh Steel operated overhead crane no. 26 at its Yorkville, Ohio facility. A switch box in the crane cab had lacked a cover for years, exposing energized electrical parts near the operator despite repeated complaints to supervisors. A securing pin was also missing from a heavy cable pigtail, allowing it to swing toward the cab and graze the operator's head. The Commission found that management knew of both conditions and rejected the argument that the pigtail hazard resulted from employee misconduct. It affirmed both violations as repeated and assessed $25,000 for each, for a total penalty of $50,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.179(g)(2)(i) and 1910.179(l)(3)(iii).
• Outcome: Affirmed. Two repeated overhead-crane violations were upheld with total penalties of $50,000.
• Key point: Repeated employee complaints to supervisors establish employer knowledge, and operating rules do not excuse a missing repair that creates a separate crane hazard.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
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SECRETARY OF LABOR,
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Complainant,

v. ..

’WHEELING-PITI’SBURGH
STEEL CORPORATION, ’ OSHRC Docket No. 91-2524
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Respondent.
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UNITED STEELWORKERS OF AMERICA, ;
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Authorized Employee
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Representative.
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a
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DECISION
BEFORE: WEISBERG, Chairman;
. FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
Wheeling-Pittsburgh Steel Corporation (“WPS”) petitions the Commission fol review of Administrative Law Judge Paul L Brady’s determination that it committed repeat violations of the Occupational Safety and Health Act of 1970,29 U.S.C. s 651-678 (“the Act”), at its Yorkville, Ohio facility by failing to comply with two of the overhead crane standards promulgated by the Occupational Safety and Health Administration (“OSHA”). The judge found violations based on WPS’s failure to (1) install a cover plate on a switch box in the cab of a crane and (2) replace a metal pin normally securing a “pigtail” at the end of a magnetic cable attached to the crane’s auxiliary hoist. WPS also petitions for review of the judge’s assessment of a $25,000 penalty for each violation. For the reasons that follow, we affirm the judge in both respects. 2 I. Alleged Repeat Vwlation of 29 C.F.R $ I9IOS79(g)(2)(i) -._
A. Facts
Item 1 of the citation alleged that WPS violated 29 C.F.R. 0 1910.179(g)(2)(i)’ by failing to install a cover plate on a switch box located approximately 3 feet behind the seat of a crane operator in the cab of overhead crane no. 26. With the switch box open, the electrical wiring inside was exposed. OSHA Compliance Officer Bruce R. Bigham testified that during the inspection, conducted on July 2, 1991, he observed that the crane operator ‘tvould come within three inches of the energized live electrical parts when he activated the switch on the box” and “within a foot or two as he got into his seat.” William Stewart, the crane operator, testified that the electrical components in the box were energized at 250 volts, regardless of whether the switch in the breaker box was in the “on” or “off” position, and that he knew this because wires passing through that box provided electricity to another outlet into which was plugged an operating fan or heater, depending on the temperature, for the cab. Stewart testified he thought that he might receive a substantial electrical shock from the exposed wiring.
According to Stewart the box had been uncovered for the entire ten years that he had operated the crane. He testified that he brought the condition to the attention of John M&night, the direct supervisor of cranes, and Neal Van Camp, the superintendent of the electrical department, “on several occasions over different periods of time,” but he never got any response. Stewart added that “approximately every two or three months, I would mention it again.” He testified that he did bring the switch plate problem to the attention of Greg Walker, superintendent of the facility, as required by the union contract, but Stewart did not file a grievance when the repair was not made. Stewart also testified that he mentioned the problem to Ed Dudzik, who was in charge of the safety committee at the union local. Dudzik acknowledged in his testimony that he had been contacted about the missing switch plate by operator Stewart, as well as by other crane operators who fill in on

‘Section 1910.179(g)(2)(i) provides:

Electrical equipment shall be so located or enclosed that live parts will not be exposed to accidental contact under normal operating conditions.
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overtime. Dudzik testified that he brought the matter “very many times” to the attention ’ of “front line supervision,” namely superintendent Walker, general foreman Wayne Shirley, Van Camp, and McKnight. According to Dud&, there was no response to his numerous complaints.
Stewart also testified that he referred to the missing switch plate in his daily inspection cards, that he filled out at the beginning of each shift, but “not for ten years
. completely.” These cards have two parts; one part goes to management, while the other part is supposed to be retained by the crane operator. Neither side produced any of the inspection cards at the hearing.
James Harris, WPS’s Superintendent of Safety, testified that he reviewed the minutes of the joint union/management safety meetings as far back as 1989, but he found no reference to complaints about the missing box cover. He stated that he had never been approached by Stewart regarding the box cover prior to the inspection. Harris testified that . he was in the crane cab during a prior inspection that OSHA conducted at the facility in February 1990, and he did not notice that the cover was missing. John Matysiak, WPS’s manager of corporate safety, testified that he had been in the cab of the no. 26 crane approrcimately 10 to 20 times prior to the present inspection, both with Stewart and another crane operator. According to Matysiak, Stewart never informed him of the missing switch box cover.
B. Judge’s De&i&
The judge found that the Secretary established that WPS had knowledge of the violative condition, noting that management was “notified repeatedly of the missing breaker box cover” by the crane operators. He also determined that because the cover had been missing for at least ten years, WPS should have been aware of it with the exercise of reasonable diligence, even without the complaints of the crane operators. He affirmed the item as repeated.
C. Discussion
In order to establish a failure to comply with the cited standard, the Secretary must establish that (1) the standard applies, (2) the employer failed to comply with the terms of the standard, (3) employees had access to the cited condition, and (4) the employer knew 4

or, with the exercise of reasonable diligence, could have known of the violative condition. E.g., Kiqwi Ekctmpldihg Corp., 16 BNA OSHC 1517, 1521, 1993 CCH OSHD 1 30,303, p. 41,757 (No. 90-2866,1993); Gary Concrete Rd., 15 BNA OSHC 1051,1052, 1991 CCH OSHD 1 29,344, p. 39,449 (No. 86-1087, 1991).
WPS claims that the Secretary did not prove that the standard, which addresses only “live” parts, applies because the compliance officer did not have knowledge of electrical switches and failed to test the box with a device that would have indicated that the components in the circuit box were energized and thereby posed potential for electric shock. We conclude that such testing could have helped to establish that the box was energized. See OtiS Ekvutor Co., 16 BNA OSHC 1579,1582,1994 CCH OSHD 130,340, p. 41,832 (No. 91; 919J 1994). However, the unrebutted testimony of long-time operator Stewart that the box WM energized because it routinely powered either a fan or heater, is sufficient to establish that fact? Therefore, we need not evaluate the compliance officer’s knowledge of electrical switches.
WPS further claims that it had no knowledge of this alleged hazard prior to the July 1991 inspection because crane operator Stewart, who is in the best position to know about the condition of the switch box, did not notify appropriate management personnel of his . concerns, nor did he proceed through the channels provided by WPS to address those concerns. This claim is without merit. Although safety superintendent Harris may not have learned of complaints through the procedures mandated in the contract, and Stewart may not have followed the exact course that Harris seemed to believe was appropriate to notify WPS of hazards, WPS did not rebut Stewart’s testimony that he complained of the missing cover to supervisors Van Camp and M&night at several different times. Nor did it rebut

*We further conclude that the evidence establishes that WPS failed to comply with the terms of the standard and that employees had access to the hazardous condition. In this regard, we note Stewart’s testimony that the switch box had been uncovered for the ten years he had operated the crane and the compliance officer’s testimony that the unprotected switch was physically proximate to the crane operator during his normal work duties. See GiUes & Catting, Inc., 3 BNA OSHC 2002,2003,1975-76 CCH OSHD li 20,448, p. 24,424 (No. 504, 1976). 5 union safety committee representative Dudzik’s testimony that he notified “front line” supervisors Walker, Shirley, Van Camp, and M&night of the missing cover many times. In this regard, none of the supervisors whom Stewart and Dudzik named were called to testi.Q.3 Accordingly, because a supervisor’s knowledge can be imputed to the employer, e.g., pride Oil Well Serv., 15 BNA OSHC 1809, 1814, 1992 CCH OSHD 1 29,807, p. 40,584 (No. 87-692, 1992), and WPS does not suggest that M&night, Van Camp, Walker and Shirley were not supervisors whose knowledge was imputable to it, we conclude that WPS had knowledge of the condition through these supervisors. The failure of the compliance officer and Harris to notice the missing switch cover during a previous inspection, and Stewart’s failure to notify them of it then, do not require a different result. Generally, an employer cannot rely on the failure of OSHA to issue a citation for a particular condition during an earlier inspection as the basis for later arguing lack of knowledge of the same hazardous condition. See Columbian An Woks, Inc., 10 BNA OSHC 1132,1133,1981 CCH OSHC 125,737, p. 32,102 (No. 78-29, 1981).
For the reasons above, we agree with the judge that WPS violated section 1910.173(g)(2)(i) by failing to install a cover plate on the switch box in the cab of the crane. Moreover, we agree with the judge that the violation was properly characterized as repeated.4

3Altematively, WPS could have produced the daily inspection cards for that period, as Stewart testified he routinely turned over both parts of the daily inspection cards to his foreman. Therefore, WPS’s argument that Stewart was not credible because he did not introduce the cards upon which he had complained of the switch box is not persuasive as this evidence would have been accessrble to either party.

4A violation is repeated under section 17(a) of the Act, 29 U.S.C. 0 666(a), “if, at the time of the alleged repeat violation, there was a Commission final order against the same employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD li 23,294, p. 28,171 (No. 16183, 1979). The Secretary introduced into evidence a 1990 citation, which became a final order, for a violation of the same standard at the same facility at an exposed electrical panel on top of the bridge of a crane. 6 IL Alleged Repeat Yiolation of 29 C.F.R 0 I9IO.l79(1)(3)(iii) A. Facts
Item. 2a in the citation alleged that WPS violated 29 C.F.R. 0 1910.179(1)(3)(iii)5 because the small metal pin that normally secured the heavy duty cord and plug, or “pigtail,” at the end of a magnetic cable on crane no. 26’s auxiliary hoist when it was not in use, had been missing for one and a half to two months before the inspection. According to crane operator Stewart, when operating the main hoist, he was “grazed in the head” several times . by this 3-foot long, 1045 pound pigtail while he was sticking his head out of the crane cab’s side window to observe the hoist operation. He testified that a guard above the cab window had been installed to provide protection against the swinging hoist block, but not against the swinging pigtail. Stewart testified that the momentum generated by the main hoist causes the auxiliary hoist to swing. This testimony largely was corroborated by Compliance Officer Bigham’s testimony. Stewart also testified that on three or four occasions he had brought the missing pin to the attention of superintendent Walker and crane supervisor M&night, but the condition was not corrected until after the inspection.
Jeffrey Bookwalter, a mechanical engineer, who was admitted “as an expert and professional engineer, but not specifically relating to the field of cranes,” observed the crane for approximately one hour. He testified that the guard above the window of the cab, as shown in photographic Exhibit R-17, was sufficient to protect the operator from any swinging pigtail. However, Bookwalter acknowledged that the pigtail could be caused to swing into an area where it could strike the operator:
If you have a situation where a crane is traversing - in this case it would be the entire bridge beam, as well as the operator’s cab traversing - and it comes to a rapid stop, then you can get a situation where the pendulum, or in this case the hook block, will swing and approach, and perhaps depending on the exact physical circumstances, cause the pigtail to come in contact with the person who would might [sic] happen to be there.

‘Section 1910.179(1)(3)(iii) provides:

Repairs or replacements shall be provided promptly as needed for safe operation. . . .
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B. Judge’s Decision
The judge rejected WPS’s claim that the interference with the “safe operation” of the -s crane resulted from unpreventable employee misconduct. He noted that the defense refers to the action of an employee, while WPS was not cited for how it operated the crane, but for failing to replace the broken pin, a condition of the crane’s apparatus. The judge held that “[rjegardless of how Stewart operated the crane, the broken pin constituted a violation of # 1910.179(1)(3)(iii).” He affirmed the violation as repeated.
C. .Discwkn
The Secretary has the burden of proving that the terms of the cited standard were not met. In this case that means showing that replacement of the pin was necessary for the safe operation of the crane. The Secretary claims he has met his burden here by showing that: (1) a pin to prevent the cable from swinging had been used by the employer in the past; and (2) operation of the crane without the pin and in a manner that prevented. loads from swinging caused the pigtail to swing at the operator’s head.
We conclude that the Secretary has established a prima facie showing of a violation by proving that the standard applies, the employer failed to comply with the terms of the standard by making the repairs needed for safe operation of the crane, employees had access to the cited condition, and the employer knew or could have known of the violative condition with the exercise of reasonable diligence. WPS had used a pin in the past to prevent the pigtail from swinging. Stewart testified that when he operated the crane without the pin, in a manner that prevented loads fkom swinging, this caused the pigtail to swing at his head. We reject WPS’s argument that its employees did not have access to the hazard because it had installed a guard above the window of the crane cab. As crane operator Stewart testified, the guard above the crane window had been installed to provide protection against the swinging hoist block, not against the swinging pigtail. Moreover, Stewart testified that his head had been grazed several times by the pigtail when he was operating the main hoist. This was corroborated by the compliance officer’s testimony that when he watched Stewart operate the crane, he saw the pigtail “swinging under the normal operation of the crane in such a manner that it could come in the window of the crane cab and strike the operator.” 8 We also find that the testimony of Stewart that he was hit by the swinging pigtail, which was corroborated by the compliance officer, is more credible than the testimony of Bookwalter that the guard would have prevented such contact. When Bookwalter observed the crane, the crane was not in normal operation, and the pigtail was secured. Bookwalter testified as an engineer, not a crane expert. Furthermore, as noted above, Bookwalter admitted that during rapid deceleration the pigtail could hit the operator. Significantly, Bookwalter did not refute Stewart’s testimony that manipulating the crane to prevent a main hoist load from swinging causes the pigtail to swing.
WPS claims that the pigtail will not swing unless the crane is operated improperly and that any violation here resulted from improper operation. To prove that a violative condition results from such unpreventable employee misconduct, the employer must show that it had a workrule that effectively implemented the requirements of the cited standard and that these workrules were adequately communicated and effectively enforced. E.g. Gary Concrete ptwls., 15 BNA OSHC at 1055, 1991 CCH OSHD at p. 39,452. WPS introduced into evidence two crane operating workrules against swinging loads and making sudden starts and stops. Stewart indicated that he was aware of those rules and followed them! Indeed, it was his manipulation of the crane to prevent the load from swinging that caused the unsecured (and much less massive) pigtail to swing. However, these workrules do not adequately address the hazard at issue. See, e.g., Re@ Constr Co., 15 BNA OSHC 1044, 1050, 1991 CCH OSHD lI 29,354, p. 39,470 (No. 87-1309, 1991). Even if those workrules were followed, they would not protect the operator from the hazard of being hit by the pigtail. Nor does the record show that they were effectively enforced. Because Stewart’s operation of the crane was not a departure from a workrule, there is no basis for WPS’s claim that his exposure to the swinging pigtail resulted from his failure to follow proper

6WPS asserts that the evidence shows that all crane operators, including Stewart, were trained in proper crane operation procedures, including instructions not to “plug” the crane, Le., shift through the stop position when changing direction thus causing the load to swing, rather than stopping in between. Even though Stewart admitted that he sometimes plugged the crane, he explained that the way he did it was not unsafe because he “would gradually slow down the trolley,” not rapidly slow it. r- 9

procedures. We therefore conclude that WPS failed to comply with section 1910.173(d)(3)(i).
For the reasons above, we agree with the judge that WPS violated section 1910.173(d)(3)(i). We also agree with the judge that the violation is properly characterized as repeated.’ III. PeMlties

Section 17(a) of the Act, 29 USC. 0 666(a), as amended by Omnibus Budget Reconciliation Act of 1990, Pub.LNo. 101-508 8 3101(1990), provides that an employer who repeatedly violates the Act or any standard promulgated therefrom “may be assessed a civil penalty of not more than $70,000.” Although section 10(c) of the Act, 29 U.S.C. 0 659(c) grants the Secretary the power to propose penalties, the Act grants the Commission the authority to assess all civil penalties. . . giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.
Section 17(j) of the Act, 29 USC. 0 666(j). See Hem Iron Woks, Inc., 16 BNA OSHC 1619, 1994 CCH OSHD li 30,363 (No. 88-1962,1994). The gravity of the offense is generally the principle factor to be considered. See Nacikmu Oprating Co., 1 BNA OSHC 1001,1971-73 CCH OSHD Q 15,032 (No. 4, 1972).
The Secretary proposed a $25,000 penalty for item 1, which concerns the switch box.
The compliance officer testified that the gravity of the violation was high because any injury would be severe, and the probability of the injury was great. He testified that the gravity- based penalty as calculated under the Field Opemtins Manual (“FOM’), see Chapter VI, sections B.8.b. and B.14.a. (3 BNA OSHR 77:2703,’77:2705 (1994); 4 CCH ESHG ll 7970.150, p. 5722 (1994), II 7970.205, p. 5728 (1993)) is $5,000, and that the FOM prescribes that a penalty be multiplied by five for large employers, those with over 250 employees, see Chapter VI, section B.14.b.(2) (3 BNA OSHR 77:2705 (1994); 4 CCH ESHG lI 7970.205, p. 5728). WPS is a large employer with 6,500 employees altogether, and 800 to

‘The Secretary alleges that the violation is repeated based on a citation issued to WPS on March 26, 1990 alleging a violation of the same standard cited here, which became a Commission final order. That citation concerned a swinging hoist block and slack magnet cable on crane no. 26. 10 850 employees at the Yorkville site. According to the compliance officer, he did not make any adjustments for good faith because the FOM does not permit it for a repeated violation.
He also testified that there had been a number of previous complaints to supervisors about the condition. He followed the FOM in not making any adjustments for WPS’s compliance history because it had been cited for serious, willful, or repeated violations within the past three years.
The Secretary proposed a $25,000 penalty for items 2a and 2b, as grouped in the citation. The compliance officer calculated the penalty of $25,000 for item 2a, which concerns the pigtail, in the same *manner as for item 1. Item 2b was withdrawn by the Secretary at the hearing. The compliance officer, however, testified that the Secretary’s withdrawal of item 2b has no bearing on the $25,000 proposed penalty because, according to the FOM, see Chapter VI, section B.9.c.,8 where violations are grouped for penalty purposes, the penalty is calculated for the first instance of a violation and the other instances . are either equal to or less than the first instance penalty, but only the penalty for the first instance is proposed.
In assessing a penalty of $W,OOOfor each violation, the judge noted the number of employees at the Yorkville plant, WPS’s history of OSHA violations, and the high gravity of the repeat violations. For item 1, he found/that contact with the energized parts exposed by the missing breaker box cover would likely result in death. For item 2a, he determined that being struck in the head by a swinging pigtail could result in serious injury. Even though he stated that WPS “displayed good faith in its dealings with OSHA,” he made no adjustments and assessed the amounts proposed by the Secretary.
Having considered the penalty factors, we agree with the judge that the $25,000 penalty for each item is appropriate. We note WPS’s large size and its record of previous violations, two of which are the violations underlying the two repeat items at issue here.

%ection B.9.c. provides that “[clombined and grouped violations shall nomally be considered as one violation for penalty purposes . V. ” 3 BNA OSHR 77:2703 (1994); 4 l

CCH ESHG B 7970.165 (1993). Moreover, section B.9.a. states, “The severity and the probability assessments for combined violations shall be based on the instaiice with the highest gravity. It is not necessary to complete the penalty calculations for each instance or -subitem of a combined or grouped violation if it is clear which instance will have the highest penalty.” 3 BNA OSHR 77~2703(1994); 4 CCH ESHG ll7970.160 (1993).
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Although WPS appears to have cooperated with OSHA during this inspection, and it apparently has a low accident injury rate, its earlier failure to act on _the complaints of Stewart aA Dud& suggest a lack of good faith. In addition, the gravity of the electrical violation is high because, even though the likelihood of injury might not have been great, Stewart and the overtime operators were exposed to the hazard of serious injury or death from contacting the exposed live parts, and the condition was exacerbated by the lengthy exposure of employees to the hazard. The gravity of the pigtail item is also high in that, although injuries that could result might not be as serious, the likelihood of Stewart and the overtime operators being hit by the swinging pigtail was high.
For the reasons stated above, we assess a penalty of $25,000 for the repeated violation of section 1910.179(g)(2)(i) and a penalty of $25,000 for the repeated violation of section 1910.179(1)(3)(iii).g

It is so ordered.

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Stuart E. Weisberg
Chairman

Edwin G. Foulke, Jr.
Commissioner

Commissioner
DATED: May 26, 1994

gCommissioner Foulke would note that, while he agrees with finding repeated violations of the cited standards, he takes issue with the penalty assessments. The record in this case demonstrates that the company has shown a remarkable dedication to safety and its efforts go far beyond those found in many companies. WPS’s accident injury rate is less than half of the national industry average, which places the company in the unique position of being the “safest” operation in the American steel industry. He also notes that, in his decision, the administrative law judge specifically found that WPS had displayed good faith in its dealings with OSHA Commissioner Foulke’s concern here is not motivated by a reluctance to assess stiff penalties, where appropriate, but to ensure that each of the section 17(j) criteria mandated by the United States Congress are given full effect.