Potomac Iron Works, Inc. (ALJ decision, April 5, 1993)

Plain-English summary

Potomac Iron Works performed steel erection work on a building in Washington, D.C. OSHA observed an employee signaling a crane at the roof edge about 68 feet above the ground without effective fall protection. The employee wore a safety belt and lanyard but was not tied off, and his superintendent was nearby and knew of the condition. The judge found that tying off to roof outriggers or a catenary line was practical. The serious violation was affirmed with a $3,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1903.2(a)(1); 29 C.F.R. § 1926.105(a)
• Outcome: Serious fall protection violation affirmed with a $3,500 penalty; separate other-than-serious item withdrawn
• Key point: Wearing a safety belt did not provide protection when the lanyard was not connected to an available anchorage system.

Full text (OSHRC public release)

UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION I 825 K STREET N.W.
4TH FLOOR vvAWINGTON D.C. 200064 246

SECRETARY OF LABOR 1
Complainant,
V. OSHRC DOCKET
NO. 92-1400 ..”
POTOMAC IRON WORKS, INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
.

R
The Administrative Lw Judge’s Re ort in the above referenced case was docketed with the Commission on Marc 4, 1993. The decision of the Judge will become a final order of the Commission on April 5, 1993 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE .A PETITION FOR DISCRETIONARY REVIEW. Any such petition should be received by the Executive Secretary on or before March 24, 1993 in order to ermit sufficient time for its review. See Commission Rule 91, 29 C. P .R. 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safetv and Health
Rewew Commissibn
1825 K St. NW., Room 401
Mkhirwton,
2 D.C. 20006-1236
Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counwl for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Roon~ S-rood

If a Direction for Rctvieih i3 IWI~~ bv the Commission, then the Counsel for Regional Trial Litigation t+ill represbt the Department of Labor. Any party havmg questions about r&w rights may contact the Commission’s Executive Secretary or call (202) ~WWO.
FOR THE COMMISSION

Date: March 4, 1993
DQCKET NO. 92-1400
NOnCE;S GIiiN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8.
Room S4004
200 Constitution Ave., NW.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104

John H. Gray, General Manager
& Assistant Secretary
Potomac Iron Works
4711 Rhode Island Avenue
P.O. Drawer 89
Hyattsville, MD 2078 1

John H. Frye, III
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, DC 20006 1246

00123501165:03
 . I
UNITED STATES OF AMERICA
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a\0AC.?.-9 % OCtiUPATiONAL SAFETY AND HEALTH REVIEW COMMISSION
.
1825 K.STREET N.W.
4TH FLOOR
WASHINGTON DC 20006-1246 .

FAX:
COM !202,634-4008
CTS 6344008

SECRETARY
OF LABOR,

Complainant,

v. Docket No. 924400

POTOMAC IRON WORKS, INC.,

Respondent.

Appearances:

Anthony G. O’Malley,Jr., Esquire
John H. Gray, General Mgr. &
.
Office of the Solicitor
Assistant secretary *
United States Department of Labor
Potomac Iroa works
Philadelphia, Pennsylvania
Hyattsville, MarylaMf
For Complainant
For Respondent

BEFORE: Administrative Law Judge John H Frye, III

I0 INTRODUCI’ION

This case involves an action pursuant to Section 10(c) of the Occupational Safety
and Health Act of 1970, 20 U.S.C. 65 1 et seq., (hereinafter “the Act”). An inspection of

Respondent’s worksite at 400 2nd Street, N.W., Washington, D.C. 20217, conducted by
the Occupational Safety and Health Administration (OSHA) Washington, D.C. District

Area Office revealed a violation of Section S(a)(2) of the Act and the regulations
promulgated by the Secretary at 29 C.F.R. ~1900 et seq. As a result, a serious and an other than selious citation was issued to Respondent, Potomac Iron Workq Inc., on April

3, 1992. Respondent fiiled a timely notice of contest and thereafter, a hearing was held

on November, 10, 1992. Following the hearing, the Secretary filed a brief. However,

although specifically advised of its right to do so (see Tr. 4, 106), Respondent has not

done so. As a result, the findings and opinion which follow borrow heavily from the

Secretary’s brief.

II 0 DISCUSSION

This case invohtes one serious citation consisting of one item which alleges a

violation of 29 CFR 0 1926.105(a).L The following findings of fact demonstrate that the

Secretary has presented all of the elements necessary to establish a violation,2 and that

the preponderance of the evidence establishes a violation of that standard.

29 C.F.R. g1926.1OS(a)provides that:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts is impractical.3

1 At the Novent- lo,1992 hearing, the Secretary withdrew her other than serious citation item jmaining to 29 CFa ~19032(a)(l). -

%e Seamazy dcmmstmed that (1) the cited standard applies, (2) there was a failure to complywith the terms of the standmi, (3) an employee had access and was exposed to the hazard created by the non- wmpliana, and (4) the employer knew or with the exercise of reasonable diligence a&l hmreknown of the wndition. Antra PharmaceuticalProducts. Inc, 9 BNA OSHC 2126,2129 (No. 78-6247,1981); Jhn- Par Engineered Form Co., 12 BNA OSHC 1949 (No. 7%2553), Rev’d and remanded on other PIOUIIQ, 843 F.Zd 1135 (8th Cir. 1988), decision on remand,OSHRC Docket No. 794553 (April 12,lWJ).

3whik Sub@t R of 29 CER s1926 prw&ies particularizedstandardsfor the stnmti steel erection industry, it is weif settled that those standardsdo not appiy to exterior f&Iihuards. Inmad, 29 CER 51926.105(a) is the controlling standard. Donovan v. Adams SC-ion. Inc, 766 F.2d 804,8U7~10, 12 BNA OSHC 1395.1397 (3rd Cir. 1985).
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In estabm a prima facie case that Respondent violated ~1!326.1OS(a), the

Secretary demonstrated
, (a) that the workplace was twenty-five (25) feet or more above

ground, (b) that none of the listed safety devices were used to protect the exposed

employee, and (c) that, in the absence of a citation for failure to use safety nets,

altetiative safety measures were practical. Centuw Steel Erectors Inc.. v. SecretaIv of

Labor, 888 F.2d 1399, 14 OSHC 1273, 1275 (D.C. Cir. 1989).

The uncontradicted testimony of the Compliance officers (CO) established that

Jerry Reed, an employee of Respondent, was working at the edge of the roof-top. Both

COs observed Mr. Reed for five to ten minutes working at the roofs edge from their

perspective. . at ground level, and again found him exposed to the fall hazard when they

were able to make their way to the roof top some 20 to 30 minutes later. At neither

time was Mr. Reed utilizing any means of fall protection.4 Photographs taken by CO

Ashley on the date of the inspection verify these observations. See Findings 10-11, 13-14. . CO Sancomb testified that he determined that the height of the building to be 68feet by

measukg the height of one of the buildings panels and multiplying that figure by the

number of building panels cxttnJrng from the top to the bottom of the building (Tr. 420

43)l

4 Although he was wearing a safety bir rad lmyard, the lanyardwas not tied off to anything so as to [email protected] fkoma f&Ufir. 13, H5,21,27,33,73,75).
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&am tht M~c to use safety nets was not cited, the Secretary demonstrated
that alternative safety measwes were practk& The discussions pertainmg to methods
of abatement which CO Sanwmb had with Respondent’s superintendent, Mr. Khatcik,
revolved around the use of catenary lines attached to outriggers from which Respondent’s
employees could tie of& thereby protecting them from fall hazards. See Finding 15,

Moreover, the testimony provided by COs Sancomb and Ashley and Mr. Wiseman clearly
establishes that the use by Respondent’s employees of safety belts and safety lines was
practical. See Findings 1643.

The existence of a serious violation depends in part on whether a reasonably
diligent employer could have known the violation was-present‘ In this cage, Respcdcnt
had the means to know of the presence of the violation, and in f&t did know of the
s violation. The exposure was in plain sight, easily visl’blefrom the ground level below the
worksite building as well as from the roof top. Moreover, the exposed employee’s
superintendent, Mr. Khatcik, was no more than 15 to 20 feet away from the employee
while he performed his work at the roof edge and admitted knowledge of the lack of f&ll
protection to CO Sancomb. See Findings 1043.

‘As noted by the U.S. Court of Appeals for the District of Columbia Circuit, “practical” meantpm succeshl in meeting the demands made by actual living and use. Centurv Steel Erectors. Inc, 14 OSHC 1273, 1277-78 (1989).

%ee Atlas Roofiiw Cornnay v- OSHRC; 518 F.2d m, 1001-1002 (5th Cir. 1979, Aff’d on other prouIIQ, 430 U.S. 442 (1977). See ako Seibel Modern Manufacturinn& Weldinn Corn., 15 BNA OSHC l218,1221 (Rev. Conm 1991); &GTEmstruction Co., 1976-77 CCH OSHD II 2133 (Rev. Comm, 1976).
 The fdll hazard to which Mr. Reed was exposed was approximately 68 feet. The

Secretary correctly asserts that this evidence establishes a serious violation.’ CO

Sancomb testified how he determined the penalty of $3,500.00. See Findings 24,2&27.

The Secretary’s testimony was not rebutted by Respondent. Accordingly, the

appropriateness of the penalty was also established

Respondent’s presentation at the hearing consisted of the cross-exami~tion of the

Secretary’s witnesses and an unsworn statement by Respondent’s representative, made

following the close of the Secretary’s case, to the effect that Mr. Reed had worked for

Respondent for 10 years, that he had indicated to Respondent that he had tied his

lanyard to the outrigger, and that the COs had observed only one lift of the crane for

seven minutes. This presentation is simply insufficient to overcome the pI%za faciecase

established by the Secretary.

III a FINDINGS OF FACT
.
General:

10 The Respondent is a corporation engaged in steel erection construction

activities. (Deemed admitted in Answer).

2 Respondent maintained a worksite at 3rd and D Street, N.W., (U.S. Tax

Court), Wasbiqto~~~,D.C. 20217, during the period of time which included March 25,

1992. (Answer, Tr. 11-14).

‘CO Sanamb noted that he has participated in the investigation of a fatalityresulting from a f&Uof 30 feet (Tr. 43). In this case, a f&Uof 68 feet could result in death, broken bones or severe tmma (Tr. 43).
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3 l
Rm&ent uses to& equipment, machinery, materiah and supplies which

have originated in whole or in part outside the District of Columbia. (Stipulated, Tr. 5,

Deemed admitted in Answer).

40
Respondent, as a result of its steel construction activities, is an employer

engaged in a business affecting commerce as defined by Section 3(S) of the Act.

(Stipulated, Tr. 5).

5l Respondent has employees as defined by Section 3(6) of the Act.

(Deemed admitted in Answer).

60 Respondent is subject to the requirements of the Act and the Regulations

issued or.promulgated. thereunder. (Stipulated, Deemed admitted in Answer). -

70 Beginning on March 25,1992, two OSHA Compliance Officers (TO”),

Joseph Sancomb and Joseph E. Ashley, conducted an inspection of Respondent at the

above-referenced worksite where Respondent was performing steel erection construction

activities (Tr. 11-12).

8 l The inspection was based upon a referral made by a witness who observed

one of Respondent’s employees at the edge of a roof without fall protection (Tr. 11-12).

90 Respondent employed four (4) employees at the aforesaid worksite at all

time relevant to the OSHA inspection (Deemed admitted in Answer, Tr. 44).

10. Upon arrival at the worksite on March 25, 1992, and while standing at ground

level, CO’s Ashley and Sancomb absented a worker performing crane signaling activities

from the edge of the roof top, some 68 feet above ground level, without utilizing any
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-7.

means of fall protection and thereby in violation of the Regulations (Tr. 13, 28, 31,33-34,

42, 72, Government Exhibit’s (TtGX”)1.1 - 1.8, l.lA and 12A).

11a Subsequent to observing from ground level that the employee working on

the roof was not tied of%,CO’s Ashley and Sancomb went to the roof level of the same

building for further observations and investigation. Upon arrival at roof level some 20 to

30 minutes later, the CO’s again observed that the employee working at the roof edge

was neither tied off or utilizing any other means of fall protection (T’r. 2628,33-34,53,

73-76, GX 21).

12 CO Sancomb had occasion to speak with Potomac’s superintendent, Mr.

Khatcik, who was standing some 15 to 20 feet from the employee working at the r&f

edge (Tr. 40-41).

13l Mr. Khatcik informed CO Sancomb that the employee in question was

employed by Respondent. He admitted that said employee was untied and not utilizing . any fall protection because he was moving in a lateral manner with the roof edge (Tr. 33,

76-77).

14a CO Sancomb also spoke with and questioned the exposed Potomac

employee, Jerry Reed, who informed CO Sancomb that he was not utilizing fall

protection as be worked at the roof edge (Tr. 41-42).

15l CO Sancomb informed Respondent’s superintendent that as a means of

abatement to protect his employees from a f&l1hazard, a catenary line could be attached
 -80

from the buMing$’ outrigging &&es which would enable employees to tie off and allow

safe lateral movement at the roof edge (Tr. 34-36,3740,44,77-78, GX 2.3 and 24).

16l Accordingv to CO Sancomb, the use of a safety belt and lanyard tied to an

outrigger or used with a catenary line is very practical because of its ease and speed of

use (Tr. 45-46).

170 Mr John Wiseman, qualified expert in iron work and construction site l

safety, noted that either a safety line attached to one of the outriggers on the roof of the

building in question, or a catenary line attached fkom one outrigger to another on the

roof top of the building in question, could safely and easily have been utilized as a

practical means of fall protection for employees working at the roof edge (Tr. 94,98-

103)l

18, The steel outrigging devices are anchor bolted into concrete on the roof

(Tr. 36,78-H&89, 103-104, GX 4).
.
190 The steel outrigging devices are able to withstand substantial weight,

including four times the weight of a scaffold holding two individuals, and up to 6,000 t0

7,000 pounds of weight (Tr. 36 Wl, 83,104).

200 cy) Sancomb arid Mr. Wiseman have observed other construction sites

where outriggers were utilizd as a means of fall protection from which employees tied

off either directly to or by use of a catenary line with safety belts and lanyards (Tr. 36-37,

101)l

21a A catenary line onty requires a few minutes to install (Tr. 99).
. * .
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22 On November 9,1992, CO Sancomb and CO Ashley and Mr. Wiseman had

o-ion to observe window washers utilize the same outriggers from the roof top of the

building located at 3rd and D Street, N.W., (U.S. Tax Court), Washington, D.C., as the

tie-off point for their safety belt and lanyard in order to work safely at the roof edge (Tr.

37,81-83,99-loo).

23 l The winduw washer who utilized the outrigger in question on November 9,

1992, tied off to it in approximately one or two seconds (Tr. 82,99).

240 Respondent’s failure to utilize any means of fall protection, thereby

subjecting its employees to a fall hazard in excess of 25 feet (68 feet in this case),

amounted to a serious violation of 29 C.F.R. 1)105(a)which could have resulted in death,

severe trauma, or broken bones (Tr. 43-44,47, GX 5).

25 0 On April 3, 1991, Respondent was issued one serious citation with one

item, and one other than serious citation with one item.

260 The proposed penalty for Respondent’s failure to utilize any means of fall

protection, is $3,500.00.

27 l This amount was calculated after CO Sancomb considered the adjustment

factors of= number of employees employed by Respondent, the good faith of Respondent,

and history of Respondent (Tr. 47-49, GX 5).

Iv CONCLUSIONS OF LAW

10 Respondent was, at all times pertinent hereto, an employer within the

meaning of Q 3(S) of the Act.
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2
The Occupatioti safety and Health Review Commission has jurisdiction

over the parties and’ the subject matter.

30
Respondent was in violation of Q S(a)(2) of the Act in that it failed to

comply the standard at 29 C.F.R. 51926.105(a) as alleged in Citation 1, Item 1. A

penalty of $3,500 is appropriate.

1 l Citation 1, Item 1, is affirmed as a serious violation of the Act.

2
A total civil penalty of $3,500 is assessed.

.

Dated: MAR - 2 1993
Washington, D.C.