Ludvik Electric
Unguarded platform citation dismissed under multi-employer defense
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This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
A Ludvik Electric employee fell to his death from an unguarded equipment-support deck at a Colorado construction site. The judge found that the deck was a covered work platform and that Ludvik could have anticipated employee use of it. Ludvik did not create or control the missing guardrails because it was a subcontractor on a multi-employer site. The judge found that the company had effectively communicated and enforced a rule requiring safety belts and lanyards on unguarded elevated surfaces. The citation was dismissed because that enforced alternative protection established the multi-employer worksite defense, and the employee's failure to tie off was unforeseeable.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
- Outcome: Serious open-sided platform citation dismissed
- Key point: A noncontrolling subcontractor established its defense by proving that it provided, communicated, and enforced an alternative tie-off rule.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMM’ISSION
4825 K STREET NW
47-H FLOOR
WASHINGTON. DC 20006-1246
SECRETARY OF LABOR
Complainant,
v.
LUDVIK ELECTRIC
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on MarcR 10, 1993. The decision of the Judge
will become a final order of the Commission on April 9, 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 b the Executive Secretary on or before .
March 30, 1993 in order to ermit su2 lcient 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 Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Cou mei for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room, S4oW
1(H)(‘omtitution Avenue, N.W.
W;I~hmgton . D C ?0210
. l c
If a Direction for Review I\ iwed by the Commission, then the Counsel for
Regional Trial Litigation wil represent the Department of tabor. Any party
havmg questions about review rtghts may contact the Commission’s Executive
Secretary or call (202) 634~7W.
FOR THE CO-ON
*
Date: March 10, 1993
DOCKET NO. 92-1429
NOTICE IS GWEN TO THE FOLLOWING:
Daniel J. Mick, ESC&
Counsel for Re 'onal Trial Liti ation
Office of the So
%lcitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tedrick Housh, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
Federal Office Bldg., ko& 2106
911 Walnut Street
Kansas City, MO 64106
Robert R. Miller, Es uire
Stettner, Miller and 2 ohn
Lawrence Street Center, Suite 1000
1380 Lawrence Street
Denver, CO 80204 2058
James H. Barkley
Administrative Law Jud e
Occupational Safety an cf Health
Review Commisslon
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3582
00109546374:08
UNITED STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMlSSiON
1244 N. SPEER 60ULEVARD
ROOM 250
DENVER, COLORAOO 80204-3582
PHGNE: FAX
COM (303) 844-2281 COM (303, 044-3759
FTS (303) 844-2281 ns (303) 844-3759
SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 92-1429
LUDVIK ELECTRIC,
Respondent.
APPEARANCES:
. . Oscar L Hampton, III, Esq., Office of the Solicitor,
.. U.S. Department of Labor, Kansas City, Ibfismuri
Robert R. Miller, Esq., Stettner, Miller and Cohn, P.C,
Denver, Colorado
Before: Adniinistrative Law Judge James H. Barkley
DECISION AND ORDER
This proceeding arises under the Occupational Safety and Health Act of 1970
(29 U.S.C. Section 651 et seq.; hereafter called the “Act”).
Respondent, Ludvik Ekctrrc (L~dvik), at all times relevant to this action
maintained a place of busrw lt U 14 Table Mountain Dr., Golden, Colorado,
where it was engaged in constmctKm (tier 11). Ludvik admits it is an employer
-engaged in a business affecting <ommerce and is subject to the requirements of the
Act (Answer ll2).
On January 16-17, 1992. w-0 Compliance Officers (CO) with the Occupational
Safety and Health AdministratIon (OSHA), conducted an inspection of Ludvik’s
Golden worksite (Tr. 24-25, 51). AS a result of the inspection, Ludvik was issued a
“repeat” &at&n, together with proposed penalty, alleging violation of 29 CFR
§1926.5O()(d)(1). By filing a timely notice of contest Ludvik brought this proceeding
before the Occupational Safety and Health Review &nmission (Commission).
.On December 3, 1992, a hearing was held in Demer, Colorado, on the con-
tested citation. The parties have submitted briefs on the issues and this matter is
ready for disposition.*
Alleged Violations
Repeat citation 1, item 1 alleges:
29 CEX 1926.500(d)(l): Open-sided floors or platforms, 6 feet or more above adj&
cent floor or ground level, were not guarded by a standard railing or the equivalent
on all open sides.
a) Southwest comer of rice polishing room: Equipment support deck was
not provided with guard rails.
The cited standard states:
Guarding of op~-sidedfloors, plarfonn~, ottd nmw~s. (1) Even? or>en-sided
floor or platform 6 feet or more above adjacent floor or ground level shall be
guarded by a standard railing, or the equivalent, as specified in paragraph
(f)(l)(i) of this section, on all open sides, except where there is entrance to a
ramp, stairway, or fixed ladder . . . l
Issues
I. Whether the Secretary showed, by a preponderance of the evidence, that
Ludvik violated ~1926.5OO(d)(l)on January 15, 1991.
a) Whether the cited equipment support deck is a “platform” and thus
covered by §1926.500(d)( 1).
b) Whether Ludvik had knowledge of the violative condition.
11 l Whether Ludvik proved the multi-employer worksite affirmative defense.
1 Approximately nine (9) days after the Secretary filed her brief, Respondent moved to strike the
brief as untimely or in the alternative, to be allowed to file a responsive brief inasmuch as Secretary’s
counsel was alleged to have read Respondent’s brief prior to filing his in spite of an order calling for
simultaneous briek. Since Respondent’s motion was received after the decision was drafted finding in
favor of the Respondent, Respondent’s motion is denied as moot without considering its merits.
&
2
-
Facts
On January 15, 1992, a bdvik employee fell to his death from an elevated
equipment deck (Tr. 11, 69).
The deck was 30 feet above the floor (Tr. 12). and was constructed to support
two dust collection blowers (Tr. 150). There was no access to the deck except by
manlift (Tr. 151). It is undisputed that the deck was partially unguarded (Tr. 13, 63;
Exh. C-A through C-E, C-G, C-H), and that its open side was visible from almost any
point in the rice polishing area where it was located (Tr. 73).
Ludvik’s employee, Clayton Olson, had .been assigned to the installation of
the fire alarm system, but Olson independently determined his daily work schedule
(Tr. 162). On January 15, Olson was installing a smoke and heat detector in a duct
which could be reached only from the deck (Tr. 12, 26, 66, 68, 154; Ex. C-F).
Installation of the duct detector takes approximately two hours (Tr. 155).
John Davis, Clayton Olson’s supervisor, testified that he did not know that
Olson would be working on the equipment deck on January 15, 1991 (Tr. 181).
However, he never specifically told Olson not to go up on the equipment deck until
railings were installed (Tr. 202). Neither Davis nor any other supervisors were in the
area while Olson was on the deck (Tr. 156).
Curt Elliott, a Ludvik superintendent, testified that although Ludvik has.no
written safety rule specifically prohibiting employees from working on open-sided
platforms (Tr. 131, 160, 169), employees had been instructed not to work on
unguarded raised areas (Tr. 146, 150). Ludvik employees had previously complained
that guardrails had not been installed around the site’s mezzanine area (Tr. 145-46,
149, 174), and on January 2, 1992, at a meeting between the general and the subcon-
tractors, it was agreed that the subcontractors would not work in those areas until
guardrails were installed (Tr. 146). At their next regular weekly safety meeting,
Ludvik employees were instructed not to work on the mezzanine or other unguarded
areas (Tr. 146, 150). Clayton Olson was present at that meeting (Tr. 175).
3
Kenneth ArelIano, Olson’s partner, testified, however, that he understood
Ludvik’s safety policy to require only that employees be tied off when working on
open-sided platfoms without guardrails (‘I’r.206, 28). iirellano also stated that he
was never told not to work on any unguarded surfaces (‘I?. 209)
Two other Ludvik employees, Jose Rodriguez and Larry Vigil, told COs
Michael Kelly and Peter Dailey that they worked on a conduit or cable tray from the
equipment deck during the week preceding the accident (Tr. 30-31). Donald W.
VanderLaan, Ludvik’s project manager, and Curt Elliott testified that Rodriquez and
Vigil were ordered to finish the work from a lift (‘I?. 122, 131, 147-48).
Dimusion
In order to prove a violation of section S(a)(2) of the Act, the Secretary must
show by a preponderance of the evidence that (1) the cited standard applies, (2)
there was a failure to comply with the cited standard, (3) employees had access to
. the violative condition and (4) the cited employer either knew or could have known
of the condition with the exercise of reasonable diIi$ence. Walker Towing Corp., 14
BNA OSHC 20722074, 1991 CCH OSHD 129239, p. 39,157 (No. 874359, 1991). .
It is undisputed that Ludvik’s employee Olson had access to, and was working
on the ‘elevated equipment deck when he felI to his death.* Ludvik, however, dis-
putes the applicability of the cited standard and its own knowledge of the violative
conditions.
Amlica biii’
The cited standard requires that open-sided “platforms” above six feet be
provided with guardrails. Section 1926.502(e) defines “platform” as “[a] working
space for persons, elevated above the surrounding floor or ground; such as a balcony
or platform for the operation of machinery and equipment.”
f Complainant does not maintain that the absence of guardrails was the proximate cause of Olson’s
fall, and stipulates that his presence on the equipment deck is relevant only to establish exposure (Tr.
13).
In ifi brief, Respondent cites cases cited dealing with the similar industry
standard, ~1910~21(a)(4), and Complainant’s Instruction Std l-l.13 (April 1984),
interpreting 51910.21(a)(4). Those cases, and the instruction arising out of them,
define a platform as a walking or working surface used on a “predictable and
regular” basis. Section 1910.21(a)(4), however, is a general industry standard,
intended to address the use of elevated surfaces in an industrial setting where opera-
tions, inspections, and maintenance are performed on a routine and repetitive basis.
Section 1926 standards, on the other hand, regulate generally non-repetitive construc-
tion activities. Because of the unique and non-retuning nature of many construction
tasks, the undersigned finds that the criteria set forth in 51910.21(a)(4) cases and
instructions, are inapplicable to cases arising under 51926.
Nor has the Commission adopted the “predictable and regular” criteria in
91926 cases. William Enterprises,Inc., 11 BNA OSHC 1410,1417, 1979 CCH OSHD
li26,542 (No. 79-843, 1983), rev’h on other growuis, 744 F.2d 170 (D.C. Cir. 1984)?
In IWZZiamthe Commission merely held that the standard “must be given a reason-
able interpretation based on the facts bf each case,” On appeal, the D.C. circuit
stated that “[w]hat is required . . . is that some construction related task be per-
formed on the [elevated surface] - one that requires employees to work from [it] or
to remain on it for some time.” Donovan v. Williams Enterprises, Inc., 744 F.2d 170,
176 (D.C. Cir. 1984). The D.C. circuit’s interpretation of §1926.502(e), although
dicta in that case, is applicable to the circumstances at bar.
The equipment deck cited in this matter, was not constructed for the purpose
of providing a working surface for construction workers. It is clear, however, that
Ludvik employees used the surfacemto work from. Specifically, the deck was used by
Ludvik employees attempting to adjust a cable tray, and by Olson, for the unrelated
3 See also, discussion in Brown & Root, Znc, 10 BNA OSHC 1837, 1840 fn.5, 1982 CCH OSHD
726,159, p. 32,966 fn5 (No. 77-2553, 1982). In Brown and Root, the Commission found a working
surface o’n a construction site fell under the definition of “platform” even though “employees were
not on the surface on a regular and predictable basis.” Id,
5
task of installing the duct detector, a task which took appro*ately two hours. The
use of the equipment deck by &bik employees as a working surface is sufficient to
bring it under the definition of a “platform” for purposes of W26.500(d)( 1).
Ludvik argues that it did not have the requisite knowledge to be in violation
of the cited standard.
The record establishes, and Ludvik does not dispute that it’s supervisory per-
sonnel were aware that the equipment platform was unguarded. Nor is it disputed
that they knew that installation of the duct detector would have to be accomplished
from the equipment deck. Ludvik argues, however, that it had given instructions
warning employees not to work from ung- elevated surfaces, and so could not
have known that Olson would begin work 3 detector prior to the installation of
guardrails.
In order to show employer knowledge of a violation the Secretary must show
that the employer knew, or with the exercise of reasonable diligence, could have
known of a hazardous condition. Dun Par Engd Fom Co., 12 BNA OSHC 1962,
1965, 1986-87 CCH OSHD li27,651, p. 36,033 (No. 82-928, 1986). In this case, no
Ludvik supervisory personnel had actual knowledge of Olsen’s presence on the
unguarded platform. Whether Ludvik had constructive knowledge of the violation
depends upon whether its supervisory personnel exercised reasonable diligence in the
supervision of employees and the formulation and implementation of training pro-
grams and work rules designed to ensure that employees perform their work safely.
Secretary of Labor v. Maser Commwion Co., 15 BNA OSHC 1408, 1991 CCH
OSHD li29,546, p. 39,905 (so. U9-1027, 1991); Gary Concrete Rod., Inc., 15 BNA
OSHC 1051, 105455, 1991 CCH OSHD 1129,344,pp. 39,451.52 (No. 86-1087, 1991).
The record demonstrates that Ludvik had no written rule prohibiting work
from ,unguarded elevated surfaces. It had, on this project, encountered unguarded
work surfaces on the mezzanine and stopped work in that area. The absence of
guarding on the mezzanine had been discussed at a weekly safety meeting, and
6
employees G&e warned that they were not to work on open-sided work surfaces .
until guardrails were installed. However, it is clear from kellano’s testimony, and
the presence of Rodriquez and Vigil on the equipment pEatform that the single
admonition was insufficient to put employees on notice that the prohibition against
working on raised work surfaces applied to areas other than the mezzanine. There is
no evidence in the record that Ludvik took any further action to impress upon
employees that working on any unguarded open-sided surface was prohibited, even
after discovering Rodriquez and Vigil on the equipment platform.
Respondent assigned Olson a task which would require his presence on the
equipment platform without specifically instructing him to avoid the platform until
guards were installed. Having failed to adequately communicate.. a work rule
prohibiting employees from working on the unguarded platform, Olson’s presence
there was foreseeable by Respondent.
The record, therefore, establishes Ludvik’s failure to exercise due diligence in
supervising its employees, and its constructive knowledge of Olsen’s exposure to the
cited hazard. The Secretary has met her burden of proof and has shown .that Ludvik
was in violation of §1926.5OO(d)(l) on January 15, 1991.
Multi-em&w Worksite
In order to establish the limited multi-employer worksite defense, a subcon-
tractor must show, by a preponderance of the evidence that:
1. It did not create the violative condition; and
2. It did not control the violative condition such that it could not
realistically have abated the condition in the manner required by
the standard; and
3l (a) It made reasonable alternative efforts to protect its employees
from the violative condition; or
@) It did not have, and with the exercise of reasonable diligence
could not have had, notice that the violative condition was
hazardous.
Lee Roy Watbrook Construction Company, Inc., 13 BNA OSHC 2104, 2106, 1987-90
CCH OSHD 828,465, p. 37,695 (No. 85-601, 1989).
7
me Seietary concedes that Ludvik neither created nor controlled the viola-
tive condition (Complainant’s Brief, p. 11). The Secretary maintains, however, that
Ludvik failed to take reasonable alternative measures to protect. its employees.
Initially the Secretary maintains that the only alternative measures available to
Ludvik are the “equivalent” railings listed in paragraph (f)(l) of the cited section,
citing inter alia, Wamel Corp., 4 BNA OSHC 1034, 1975-76 CCH OSHD fl20,576
(No. 4537, 1976). However, the holdings cited by &mplainant are limited to the
interpretation of “equivalent protection” provided for by. the standard itself. The
Commission has held, however, that “[a]n employer may substitute an alternative
form of protection from that required by the stafidard if it can establish the elements
of one of three defenses: impossibility of compliance or performance; greater
hazard; or multi-employer worksite . . . .” (citations omitted). Wander Iron Work,
ho, 8 BNA OSHC 1354, 1355, 1980 CCH OSHD 124,457, p. 29,859 (No. 76-3105,
1980).
The . Secretary has conceded two of the three elements necessary to establish
Ludvik’s multi-employer worksite defense. It remains only for Ludvik to show that it
made reasonable alternative efforts to protect its employees from the violative condi-
tion.
Ludvik maintains that it: 1) asked the general contractor to install guardrails
on all raised work areas; 2) instructed its employees to avoid unguarded platforms;
and 3) required all workers on exposed platforms be tied off with a safety belt and
lanyard.
The record establishes that Ludvik’s complaints to the general contractor
about unguarded raised areas, as ~11 as its warnings to its employees about working
on such surfaces, were directed t~rcls the mezzanine areas (Tr. 145-150, 174).
Foreman Davis admitted that he never specifkally discussed guarding the equipment
platform with the general contractor (Tr. 200-201). Neither Ludvik’s requests for
handrails or its instructions to its employees, therefore, constitute reasonable alterna-
tive means of protection against the cited hazard.
8
The Commission has indicated, however, that safety belts and lanyards may be
used as a reasonable alternative to guardrails where their use is effectively enforced.
Prewessed SLsremr, Inc., 9 BNA OSHC 1865, 1867, 1981 CCH OSHD Y25,358, p.
31,498 (No. 16147, 1981).
Ludvik had its own safety policy as well as a “safety agreement” distributed by
Ohbayashi, which all employees were required to read and sign upon hiring at the
start of the project (Tr. 134). Ludvik’s safety policy includes rule #8, under
“PERSONAL PROTECTIVE EQUIPMENT, ” which states that “[slafety belts and
life lines must be used when other safeguards, such as nets, planking, or scaffolding
cannot be used.” (Tr. 114; Exh. R-l, p. 5). In addition, under “GROUND[S] FOR
IMMEDIATE DISCHARGE” the policy lists “1. Not using safety belts and lanyards
when there is a potential fatal fall.” (Exh. R-1 p. 3). Ohbayashi’s rule #14 states that
“[a]ny employee exposed to a fall of six feet must have a safety belt and lanyard”
(Tr. 137; Exh. R-2).
Clayton Olson signed both a copy of Ludvik’s safety policy and the safety
agreement on October 4, 1991 (Tr. 137, 139). The use of safety belts and lanyards
was discussed at a December 9, 1991 safety meeting (Exh. R-5). Ludvik provided
safety belts and lanyards to employees who worked off the ground, including Mr.
Olson,.who had his belt with him at the time of the accident (Tr. 139).
Kenneth Arellano, Olson’s partner, testified that he understood Ludvik’s
safety policy to require that employees be tied off when working on open-sided plat-
forms without guardrails (Tr. 206, 209).
CO Kelly stated that during his investigation, both Rodriquez and Vigil told
him they did not tie off while working on the equipment deck because it was not easy
to find a place to tie off, even though they knew it was required (Tr. 36-39, 47-48).
VanderLaan and Elliott, however, both testified at the hearing that both Rodriquez
and Vigil were tied off when they were discovered working on the equipment deck
(Tr. 123, 148).
The evidence establishes that Ludvik had a work rule requiring employees to
use safety belts and lanyards when working on unguarded surfaces over six feet, and
a
9
that the rule-was effectively communicated to its employ=. Respondent maintains
that the rule was enforced; Complainant contends that the statements of Rodriquez
and Vigil establish that the rule was not enforced.
Rodriquez’ and Vigil’s out of court statements, repeated by CO Kelly are
directly contradicted by Vanderhan and Elliott, who were eyewitnesses to the inci-
, dent. Their testimony, given in court and subject to cross examination is preferred to
the out of court statements given to Kelly. The undersigned concludes that Ludvik’s
safety rule was enforced and, therefore, that Ludvik took reasonable alternative steps
to protect its employees on unguarded raised surfaces. Olson’s violation of that rule *
was unforeseeable and unpreventable.
Ludvik has established its multi-employer worksite affirmative defense. The
cited violation will be dismissed.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a deter-
mination of the contested issues have &en found specially and appear in the deci-
sion above. See Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Serious citation 1, item 1, alleging violation of #1926.500(d)(l) is DISMISSED.
.
Dated: February 26, 1993
10
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