Mutual Erectors Inc.

Plain-English summary

Mutual Erectors was a small steel-erection contractor building the steel frame for a school addition. The ALJ vacated a general-industry sling-inspection item because the construction rigging standard more specifically covered the condition and the Secretary did not prove a missed inspection. She affirmed the construction rigging item because birdcaging made a wire-rope sling defective and required its removal from service. She also found that employees worked at heights both below and above 25 feet without usable fall protection, affirming a general-duty violation and a construction fall-protection violation. The three affirmed items carried penalties totaling $2,300.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.184(d); 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.105(a); 29 C.F.R. § 1926.251(a)(1).
• Outcome: Mixed. The sling-inspection item was vacated; three rigging and fall-protection items were affirmed for $2,300 total.
• Key point: A construction-specific standard controls over a general-industry standard, and practical safety belts or lifelines must be used when employees face serious fall hazards.

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 20036-3419

FAX:
COM (202) 6064050
Fl-S (202) 606-5050

)

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92- 1797
MUTUAL ERECTORS INC.
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 Otto &er 28, 1993. The decision of the Judge
will become a final order of the Commission on November 29, 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
November 17, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
200 Constitution Avenue, N. W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labo r. Any party
havmg questions about review rights may contact the Commissio n’s Executive
Secretary . or call (202) 606-5400.
FOR THE COMMISSION

Date: October 28, 1993

DOCKET NO. 92-1797
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO52
Room S4004
. 200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ional Solicitor
Office of t%e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

George Rehkamp, President
Mutual Erectors, Inc.
8749 Herita e Drive
Florence, ISg, 41042

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an t Health
Revrew Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00102590056 :05

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REV IEW COMM ISSION
1365 PEACHTREE STREET, NE., SUITE : 240
ATIANTA, GEORGIA 30309-3119

PHONE: FAX:
COM(404)347-4197 c0M(404)347-0113
FlS(404)347-4197 Frs (404) 347-0113

~-~
..
SECRETARY OF LABOR, ..
..
Complainant, ..
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OSHRC Docket No. 92-1797
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APPFZARANCES:

Betty Klaric, Esquire Mr. George Rehkamp, President
Office of the Solicitor Mutual Erectors, Inc.
U. S. Department of Labor Florence, Kentucky
Cleveland, Ohio For Respondent Pro Se
For Complainant

Before: Administrative Law Judge Nancy J. Spies

DECISION AND ORDER

On May 7, 1992, the Secretary issued a serious citation to Mutual Erectors, Inc.
(Mutual), alleging violations of the Occupational Safety and Health Act of 1970 (Act). The
citation resulted from an inspection conducted on April 9 through 13,1992, by Occupational
Safety and Health Administration (OSHA) Compliance Officer Steven Medlock. Four
standards were cited: (1) $1910.184(d) for failure to inspect wire rope slings; (2) 0 S(a)(l)
of the Act for failure to provide fall protection; (3) 6 1926105(a) or, in the alternative, the
steel erection standard of 5 1926.750(b)(l)@) for failure to provide fall protection; and
(4) 6 19262Sl(a)( 1) for use of defective rigging. Mutual asserts that the standards do not
apply or that the conditions do not constitute violations.

Mutual is a small steel erection contractor which utilizes heavy equipment and works
with manufactured steel products. At the time of the inspection it was engaged in
constructing the skeletal steel frame for a single-tiered school addition. That addition had
a core and two wings measuring 500 feet by 1,000 feet (Tr. 271). George Rehkamp,
president and owner of the company, represented Mutual pro se.

Allewd Serious Citation
Items 1 and 4: 5 1910.184(d) and $1926.2510(1~

The Secretary charges that Mutual used a defective wire sling and that since a /
competent person would have removed the sling from use, it was not properly inspected.
The Secretary cites the general industry standard for failure to inspect [item 1,
5 1910.184(d)] and the construction standard [item 4,s 1926251(a)(l)] for failure to remove
the sling from service. He further relies on the general industry standard to define
“defective” in 0 1926251(a)( 1). Mutual objects to any reference to the general industry
standards, asserting that the general standards are inapplicable to its construction workplace.
The standards provide:
5 1926.184 (d) Inspections. Each day before being used, the sling and all
fastenings and attachments shall be inspected for damage or defects by a
competent person designated by the employer. Additional inspections shall
be performed during sling use, where service conditions warrant. Damaged
or defective slings shah be immediately removed from service.
6 1926.251(a) General. (1) Rigging equipment for material handling shall be
inspected prior to use on each shift and as necessary during its use to ensure
that it is safe. Defective rigging equipment shall be removed from service.

Section 1910.184(d)

Although items 1 and 4 focus on separate sections of these two standards, the
standards themsehres prohibit substantially the same conduct. “Rigging equipment” in
8 1926.2!5l(a)( 1) applies to slings. Both standards contain the same requirements for
inspection and removal of defective equipment. The Secretary offers no rationale to explain
why the general industry standard is cited when a construction standard pertains to the
condition. The fact that a general industry standard contains language which the Secretary
prefers does not make that standard applicable. Violations arc auplicative when they

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involve substantially the same violative conduct. Clateland Cottsolidateci, Inc., 13 BNA
OSHC 1114,1986-87 CCH OSHD ‘II27,829 (No. U-6%,1987). Although separate conduct
is alleged for each of the two violations, the construction standard applies to both of the
specified conditions. The construction standard of 5 1926251(a)(l) more specifically
pertains to Mutual’s operation. Section 1910.184(d) is incorrectly cited. Even were this not
so, the mere existence of a condition does not prove that there was a failure to inspect for
that condition. The alleged violation of 9 1910.184(d) is vacated.

Section 1926.25 lf a)(l)

Medlock described the wire rope sling he found where Mutual was lifting steel beams
(Tr. 30). The sling was a “mechanical fit” sling which measured %-inch by 128 inches
(Tr. 30). In Medlock’s opinion it contained defects caused by broken wires in various “lays”
(individual strands of the wire) and by “birdcaging” in the sling (Exh. C-3; Tr. 34). Medlock
counted five broken wires in one strand of a lay and 13 broken wires in two strands of a lay
(Tr. 44). The sling was “birdcaged” since the strands of the wire rope were no longer tightly
twisted but had opened up, allowing the lubrication of the sling’s inner core to become dry
and corroded (Exh. C-5; Tr. 34, 35).
The Secretary refers to sections of the general industry standard of Q 1910.184which
governs slings. Contrary to Mutual’s contention, reference to the general industry standards,
as well as to those of manufacturers or others, can properly provide guidance in interpreting
construction standards. face Constr., 14 BNA OSHC 2216, 2221-22, 1991 CCH OSHD
ll 29,333, p. 39,431 (No. 86-758, 1991). A reasonably prudent employer would know that a
general industry standard covering the same equipment could apply. Here, the Secretary
suggests that the term “defective rigging equipment” in 0 1926251(a) must be understood
in terns of the requirements of 5 1910.184. Specifically, he relies on the requirement that
wire rope slings “shall be immediately removed from service” if the sling has “ten randomly
distributed broken wires in one lay, or five broken wires in one strand in one rope lay”
[6 1910.184(f)(5)(i)] or if there is “kinking, crushing, birdcaging or any other damage
resulting in distortion of the wire rope s&u-e” [6 1910.184(f)(S)(iii)].

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Broken Wires

Mutual admits that the sling had broken wires. It refers to 6 192625l(c)(4)(iv) to

support its claim that they were less than the number prohibited by 8 1926.2!5l(a)(1). That
sub-section of the cited standard specifies that wire rope should not be used & “in any
length of eight diameters, it has more than 10 percent of its wires visibly broken,” or if the
rope shows other signs of “excessive wear, corrosion, or defect.”
The Secretary’s argument that 0 19262!5l(c)(4)(iv) pertains only to wire rope and not
to a wire rope sling is rejected. Read in context, that section applies to wire rope and wire
rope slings and not merely “running wire” as Medlock suggests. As stated, reference to the
general industry standards may be helpful and is appropriate when there is an ambiguity in
the standard at issue. Such ambiguity does not exist as to the number of broken wires which
necessitates removal of a sIing under 5 1926.251. That figure is specified in the cited
standard as 10 percent. There is no proof that more than 10 percent of the wires in the
length were broken. Thus, the wire rope sling was not “defective” because excessive wires
were broken.
Birdcaging

Without reference to the broken wires, did the birdcaging present in Mutual’s sling
alone constitute a defect which required it to be removed from service? Medlock identified
two areas which were birdcaged. One area near the eye of the sling was opened up
(birdcaged) to a significant degree and had corrosion showing from the other side
(Exhs. C-3, C-4; Tr. 37). The inner core could be seen through the open coils (Tr. 37). A
second area in the interior of the sling was also birdcaged (Exh. C-5; Tr. 38). In support of
his position that a birdcaged sling was “defective,” the Secretary referred to the 5 1910
standard. He also relied on “Sling Inspection Criteria”’ written by a local sling
manufacturer. The Criteria included as one of its guidelines that “. . birdcaging or other
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damage which distorts the rope structure” requires remOval from service (‘I?. 149). Medlock
took courses on rigging and had on-the-job experience with rigging in his previous work

• Although identifkd, the “Sling Inspection Criteria”wasW iW&ti into evi&uz.

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(Tr. 25). Rehkamp also had experience using rigging, but at the time of the inspection he
was unfamiliar with manufacturers’ standards or with the OSHA regulations governing sling
inspections (Tr. 30). Medlock’s opinion that the birdcaged sling constituted defective rigging
was also supported by other evidence and is the more persuasive testimony. The amount
of distortion in the coils caused by birdcaging could not be classified as “slight” damage (Tr.
149-150). The birdcaged sling was “defective” under the standard, and it should have been
removed from service.
Classification and Per&v

Mutual’s employees used the sling to lift steel which weighed at least 1,500 pounds
(Tr. 42, 48). Medlock testified that it was impossible to know how much weight Mutual’s
sling could carry in its damaged condition. If undamaged, it could be expected to carry at
least 4,000 pounds (Tr. 53, 125). A failure of the sling could cause steel beams to fall on
exposed employees resulting in their serious injury or death. To prove that a violation is
serious, it is only necessary to show that an accident is posslible and that death or serious
physical harm would be the likely result. Mutual’s small size and the fact that it has not
been previously inspected mitigate towards a reduced penalty. The unstructured nature of
its safety training, its failure to have a written safety program, and its failure to provide its
employees with any formal safety instructions specifically relating to their work militates
towards an increased penalty (Tr. 222,223). The likelihood of an accident is an important
factor in determinin g the gravity of the violation. See, e.g.,Bethlehem Steel Crop. v. OSHRC,
607 F.2d 1069 (3rd Cir. 1979). That likelihood is considered moderate. Considering these
factors, a serious violation of 0 1926251(a)(l) is affirmed and a penalty of $300 is assessed.

Item 2: 6 S(a)(l) of the Act

The Secretary abandoned his original citation to 6 1926.28(a).2 For the same reason,
Le., potential falls would be less than 25 feet, the Secretary correctly asserts that the steel

• In his complaint the Secretaryamended item 2 of the citation to substitutethe allegationof 8 S(a)(l) fix
  that of 8 1926.28(a).In his brief the Sea@ary acknwledged that @19%.28(a)does not apply to falls of less
  than 25 feet under the rationaleof L E h&ws Co., H# VW DE, 818 FSd 1270 (6& Cir. 1987).

erection standards do not apply. The issue remains whether Mutual violated 8 5(a)( 1) of
the Act because its employees were exposed to fall hazards3.
To prove a violation of 0 S(a)(l), the Secretary must show that: (1) a condition or
activity in the employer’s workplace presented a hazard to employees; (2) the employer or
the employer’s industry recognized the hazard; (3) the hazard was likely to cause death or
serious physical harm; and (4) feasble means existed to eliminate or materially reduce the
hazard. United States Steel Corp., 12 BNA OSHC 1692, 1697-98, 1986437 CCH OSHD
V 27,517, p. 35,669 (No. 79-1998, 1986).

On April 9, 1992, two of Mutual’s employees, Brian Lynam and Dave Simmons,
worked at the north end of the classroom annex. The men were bolting up and installing
purlins. Purlins are the structural steel members running from beam to beam to which sheet
metal roofing would later be attached (Tr. 55). In performing this work, the men moved
along an area which ranged from a height of less than 11 feet, at the lowest purlin, to 22 feet
4 inches at the peak-end purlin (Exh. C-6; Tr. 55). Medlock observed, photographed, or
videotaped the employees at heights of 12 feet, 18% feet, and 20 feet. Employees remained
in each position for “5 to 10 minutes” before moving to the next purlin (Tr. 61, 211).
Although Lynam had his safety belt on, he had no lanyard attached to it, having taken it off
the morning of the inspection (Tr. 215). He had used it “a few times on and off’ the week
before the inspection Tr. 216). Simmons was not wearing a safety .belt or lanyard
(Exhs. C-7, C-8, C-9; Tr. 6243).

3 Mutual prima@ relied on a commission judge’s unrevieweddecision in Buikfikgm k, 12 BNA
OSHC 1384,198S CCH OSHD 127,286 (No. &I-758& 1985). Building Erectors, k, is M~tual’s parent
company(Tr. 253). In BuildingEtectors,the judge vacateda 8 192628(a) allegation because he felt compelled
to follow the then-precedent ofAdams S&xlEm., Inc=, 11 BNA OSHC 2073,1984-85 CCH OSHD 126,976
(No. 77-4238, 1984). In Adams steel, the Review Commission determined that only SubpartR contained
standardsapplicable to a steel erection mpany. This position does not reflect the currentstate of the law.
After the judge’s decision in Bbiki%gErectops,Adams Steel was reversed on appeal. [Jbwwn v. A&ms Steel
Erection, 766 F.2d 804 (3d Cir.1985)]. The holding in Adims SeeI was later rejected by the Commissionin
ihttm Cop., 14 BNA OSHC 1893,1987-90 CCH OSHD q 29,152 (No. 83=132,19W). Rehkamprepeatedly
questioned whether “the law had &an@” His understandingwas that “if the law had not change’ his
employees wwe not required to tie off at kights of less that 25 feet (Ik. 254,255). S&e M~UPU(stal and
I3uikhg Erecton no longer reflectthe cuzrentinterpretationof the standards,the law k changuL

6

Employees were exposed to a fall hazard at these heights. Was the hazard
recognized? Mecilock, who was qualified as an expert in fall protection, discussed an analysis
of construction fall fatalities from OSHA’s database. That analysis covered fatality reports
from 1985 through 1990 and showed that a significant number of the fatalities occurred from
falls of less than 25 feet (Exh. C-10; Tr. 78-80). Ray Shinkle, an instructor and business
agent for Ironworkers Local 44, trained apprentices, journeymen, and ironworkers in fall
protection (‘I?. 241). He emphasized that employees should have fall protection at heights
above six feet (Tr. 242). In his opinion, falls of less than 25 feet were a recognized hazard
in the steel erection industry (Tr. 247). Shinkle testified that 75 percent of the union’s
injuries resulted from falls from heights of between 11 and 22 feet (Tr. 248). Rehkamp’s
opinion did not markedly differ. Although Mutual had documented difficulties in enforcing
its work rule, it required employees to be tied off “whenever they’re on steel” (Tr. 264). Yet
noting that the majority of its work is at heights of less than 25 feet (Tr. 2X-257), Rehkamp
claimed to hire people with “enough common sense to know when to tie off below 25 feet”
(Tr. 256257, 265). Rehkamp agreed that a fall of between 11 to 22 feet could result in
death or serious physical harm (Tr. 265). Rehkarnp was regularly at the jobsite directing his
employees’ work (Exhs. C-15, C-16). He reminded employees “once or twice” to tie off
(Exh. C-13). The evidence establishes that a fall hazard existed, that the hazard was
recognized by Mutual and by the steel erection industry, and that Mutual had knowledge of
his employees’ repeated failures to use fall protection.

Feasibility

At the heights noted, it was feasl%le to provide various types of fall protection.
Because of muddy conditions and a lack of cooperation fi-om the general contractor,
Rehkamp believed that “[a]nything other than lanyards and safety belts, just was not
practical, not even possible” (Tr. 261). The Secretary presented evidence as to the feasibility
of various other types of fall protection. Even accepting Rehkamp’s position, however,
safety belts and lanyards could have been used. Employees could have tied to the steel
members when bolting the purlins; they could have used lanyards with a lifeline strung
through supports when moving along on the steel, Mutual enforced use of such fall

7

protection in both instances later during the inspection period (Exh. C-12; Tr. 83, 84).
Mutual argues that it cannot always require employees to use fall protection at heights of
less than 25 feet and remain economically competitive. Belts and lanyards were available
at the jobsite. There was no showing that using a safety belt system presented “extreme
cost” which Mutual, as a business entity, “cannot absorb.” FauZtless Div., Bks & Laughlin
Indrcs., Inc., 674 F.2d 1177, 1190 [10 BNA OSHC 14811(7th Cir. 1982). Safety belts were
feasible fall protection.

Classification and Penalty

A fall from structural steel at the stated heights to the ground below could result in
serious injury or death. The statutory penalty considerations have been discussed. A serious
violation of 8 5(a)( 1) of the Act
/ is affirmed. A penalty of $1,000 is assessed.

Item 3: 6 1926.105(a)
Or, In The Alternative, 5 1926.750O(l)(iit

The Secretary argues in the alternative that Mutual violated either the general
industry standard of 6 1926.105(a) or a steel erection standard of 8 1926.750(b)(l)@) by
failing to use safety nets or other fall protection.4 Mutual argues that when working at
heights of above 25 feet, it required its employees to tie off.
The standards require:
.105(a) Safety nets shall be provided . . . where the use of ladders, scaffolds,
catch platforms, temporary floors, safety lines, or safety belts is impractical.
.750(b) Temporaq flooring--skeleton steel construction in tiered buildings.
(l)(ii) On buildings or structures not adaptable to temporary floors, and where
scaffolds are not used, safety nets shall be installed and maintained whenever
the potential fall distance exceeds two stories or 25 feet.
This violation allegedly occurred on or about March 26, 1992, when Lynam and
Simmons were installing purlins at the lunchroom/office “core” portion of the addition. The
heights at that portion of the building ranged from 21 feet to 34 feet (Exh. C-6; Tr. 101).
Medlock did not observe the operation. The Secretary’s proof is based upon the employees’

4 By Order dated December 14,1992, the Secretary'smotion to amend in the alternative w granted.

8

testimony at the hearing and upon signed interview statements from the two employees
@Y&S.C-15, C-16). Each employee testified that he did not tie off while bolting purlins
during a two-week period around March 26, 1992 (Exhs. C-15, C-16; Tr. 200, 216).
Rehkamp, their supervisor, was usually present (Tr. 218,222). He gave instructionsto the
employees while they were on the structural steel without safety belts or attached lanyards
(Exhs. C-15, C-16). Employees were subject to falls up to 34 feet at the core area.

Only General Standard ADdies

The annex is a single-tiered building. It is not a structure in which a skeleton steel
framework is erected in vertically stacked steel columns (Tr. 103-104). The steel erection
standards of Subpart R do not apply to single-tiered buildings even where the height of the
building exceeds 30 feet. State Sheet Metal Co., 16 BNA OSHC 1155, 1161, 1993 CCH
OSHD ll 30,042 (Nos. 90-1620 8z 90-2894, 1993); contra Builders Steel Co. v. Madial~ 622
F.2d 368 (8th Cir. 1980). Since the specific industry standards do not apply, Mutual must
comply with the general industry standard of 0 1926.105(a).
The 0 1926.105(a) standard provides that safety nets are required where other
safety devices are impractical, “not that safety nets are required unless other devices are
practical.” Falcon Steel Co., 16 BNA OSHC 1179,1993 CCH OSHD 1 30,059 (Nos. 892883
& 89-3444, 1993). Safety nets are “the device of last resort, required if the other
enumerated devices, including belts, are impractical.” Falcon, suym 16 BNA at 1189, 1993
CCH at p. 41,337. Thus, if one of the other methods specified in the standard can be used,
it should be wed. State Sheet Metal Co., supra. The Secretary sustains a violation of
5 1926.105(a) by showing that employees were subject to falls of 25 feet or more; that none
of the safety devices listed in the standard was used; and, if safety belts are proposed as
abatement, that safety belts were practical. The Secretary bears the burden of proof on
each issue.
Hazard and Practicality

Two of Mutual’s employees were subject to falls of greater than 25 feet when they
installed purlins at the core area. Although they may have worn safety belts, since their

9

lanyards were not worn or connected, they were not protected. Employees could have tied
off during the bolting process and could have used a lifeline system similar to the one which
was later installed. It own work rules, as well as those of its industry, recognize the validity

of using safety belts in these circumstances. The Secretary has established that Mutual
. violated 6 1926.105(a).

Classification and Penalty

Employees subject to falling 21 to 34 feet to the ground below would likely suffer
severe injury or death. The violation is serious. Upon consideration of the factors
previously discussed, a penalty of $1,000 is assessed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

ORDER

Based on the foregoing decision, it is ORDERED:

1. That the violation of 6 1910.184(d) is vacated;
2. That the violation of 9 5(a)(l) of the Act is affirmed, and a penalty in the
   amount of $1,000 is assessed;
3. That the violation of 0 1926.105(a) is affirmed, and a penalty of $1,000 is
   aBinned; and
4. That the violation of 5 1926.25l(a)( 1) is affirmed, and a penalty of $300 is
   assessed.

/s/ Nancy J. Spies
NANCY J. SPIES
Judge
Date: October 20, 1993

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