Southwest Refractory, Inc. (ALJ decision, January 3, 1994)

Plain-English summary

Southwest Refractory hired an independent crane company to turn a 17,000-pound steel pipe while Southwest applied refractory lining at its Sapulpa, Oklahoma, facility. A Southwest employee crouched beneath the suspended pipe to move supporting timbers, and the pipe fell on him; he later died from his injuries. The judge held that Southwest remained responsible for keeping its own employees clear of suspended loads even though the crane contractor controlled the rigging and lifting operation. Southwest had a rule against working near suspended loads, held safety meetings, and warned employees that morning, but the record showed frequent violations and no demonstrated use of written reprimands or termination. The judge therefore rejected the unpreventable-employee-misconduct defense. He affirmed the serious violation and assessed $3,000 rather than the proposed $5,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.184(c)(9).
• Outcome: Modified. The serious suspended-load violation was affirmed, with the proposed penalty reduced to $3,000.
• Key point: Hiring a crane specialist does not transfer an employer's duty to keep its own workers clear of suspended loads, and a work rule must be effectively enforced.

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

.
PHONE:
Ei (202) 6o6-wxi
COM (202) 6oG5100
Frs (202) 606-50!50
FTS (202) 60+5100
.
SECRETARY
OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2345
SOUTHWEST
REFRACTORY
Respondent.
\

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on December 2, 1993. The decision of the Judge will become a final order of the Commission on January 3, 1994 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before December 22, 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
Review 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. DOgL
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 Labor. Any party havmg questions about review rights may contact the Commission’s Executive Secretary or call (202) 606-5400.

                                                             E0%TI-IE      COMMISSI..                 /I’T

Date: December 2, 1993
DOCKET NO. 92-2345
NOTICE IS GIVEN TO THE FOLLOWING:

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

James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752 82

Kenneth D. Bodenhamer, Esq.
Bodenhamer & Levinson, P.A.
5310 East 31st Street, Suite 900
Tulsa, OK 74135 5027

Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an f Health
Review Commissron
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501

00108732462:06
 UNITE0 STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION JOHN W. McCORMACK POST OFFICE AND COURTHOUSE ROOM 420
BOSTON, MASSACHUSETTS 02109401
(617) 223-9746
a
.

.0
SECRETARY
OF LABOR,
Complainant,
..
l
.
.

v.
.
. OSHRC
.. DOCKET NO. 92-2345
SOUTHWEST REFRACTORY, INC., l
.

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Respondent.
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Appearances:

Nancy B. Carpentier, Esq.
Kenneth D. Bodenhamer, Esq.
Office of the Solicitor
Bodenhamer & Levinson, PA
U.S. Department of Labor
Tulsa, Oklahoma
For Complainant
For Respondent

Before: Administrative Law Judge Richard DeBenedetto DECISION AND ORDER

On July 1, 1992, Southwest Refractory, Inc. (“Southwest”), was cited for a serious violation of 29 C.F.R. § 1910.184(c)(9) which requires that employees be kept clear of suspended loads and loads about to be lifted by a sling. A penalty of $5000 is proposed. The citation was issued after OSHA safety compliance specialist, Jorge11 Henry, conducted an investigation of an accident that occurred at Southwest’s Sapulpa, Oklahoma site on April 23, 1992, which resulted in the death of a Southwest employee (Tr. 4-5, 16-20, 31-32).
Callidus Technologies (“Callidus”) hired Southwest to apply refractory material to the inside of a 17,000 pound, U-shaped steel pipe that Callidus had shipped to Southwest’s Sapulpa site; the pipe was twelve feet long, fifteen feet wide, and six feet in diameter (Tr. 9-11, 17,28,58; Exhibits C-3 & C-4). During the refractory process, the pipe had to be lifted and turned over so that refractory material’ could be applied to the other side of the pipe

1 Refractory material is a heavy, cement-based, liquid lining which is applied to the internal walls of various pipes and vessels in order to insulate and protect the unit (Tr. 28-29, 58-59). (Tr. U-12, 28-30, 70). Southwest hired Mobile Crane Services, Inc. (“Mobile”) to lift the pipe. Mobile, an independent contractor, provided a 35ton crane, a crane operator, and a rigger to perform the lifting operations (Tr. 42-43, 59-61, 69-70).
On the morning of April 23rd, Mobile’s crew had already flipped over approximately nine pieces of equipment for Southwest before turning to the Callidus pipe (Tr. 61-62, 74). The rigger, a Mobile employee, rigged the pipe using a sling which consisted of a choker and ball cable attached to the lifting lugs on the side of the pipe (Tr. 26-30, 45-46, 72, 76;
Exhibits C-1 through C-4)?
The’ pipe was resting on its side on top of several timbers
which had to be relocated underneath the pipe once it was lifted and turned over; two Southwest employees assisted with this task (Tr. ll-12,30-31, 62,70-71,76-77). When John Fellows, one of these employees, crouched down underneath the suspended pipe to shift some of the timbers, the pipe fell on him, pinning him to the ground; he subsequently died from the injuries he sustained (Tr. 4-5, 12-13, 17, 30-32).
Section 1910.184(c)(9) re q uires that employees be kept clear of suspended loads as
well as loads about to be lifted. There is no question that Fellows was exposed to a hazard as he worked near the suspended pipe and his failure to stay out from under the load clearly violated the mandate of the cited standard (Tr. 33-36). The record demonstrates that Southwest was well aware of the fact t hat working around or underneath a suspended load
posed a serious hazard to employees.
Both Phillip Stonecipher, Southwest’s vice president
of administration, and Jack Sligar, Jr., Southwest’s project superintendent on the day of the accident, testified that Southwest had made a serious effort to ensure that its employees stayed clear of loads during lifting operations by constantly warning them when they got too close and repeating this admonition at regular safety meetings (Tr. 62-65, 73-75, 79-80).

2 There was some dispute at the hearing over whether the rigger performed this task alone or with the assistance of Robert Brown, a Southwestemployeewho was present at the scene of the accident (Tr. 48-49, 54, 60-61,69-72,76,78). In either case, it seems unlikely that Brown would have done any more than simply assist, at the rigger’s direction, in attaching the pipe to the cables. It is the rigger who, as safety compliance specialist Henry described it, “hooks the cables and things to...whatever they’re lifting” and Southwest specifically requested that Mobile provide a rigger for this purpose on the day of the accident (Tr. 45-46,52, 60-62, 69-70, 72, 78). Southwest employees apparently receive no training in this type of work (Tr. 62).

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Having shown that the cited standard applies to the cited condition, that the terms of the standard were not met, and that Fellows was exposed to a serious hazard which was recognized as such by Southwest, the Secretary has satisfied his burden of proving a violation. Wbolsto~z Colzstr. Co., 15 BNA OSHC 1114, 1116, 1991 CCH OSHD Y 29,394 (No. 88-1877, 1991), afs’d, 15 BNA OSHC 1634 (No. 91-1413, D.C. Cir. 1992).
In its defense, Southwest maintains that because Mobile was in charge of all lifting
operations that day, the responsibility for the cited violation belongs to it and not Southwest. Southwest had employed Mobile on jobs such as this one since 1982 and, apparently, never had a safety problem with them (Tr. 59-60, 79). It was not unreasonable, therefore, for Southwest to have expected Mobile to follow safe procedures when performing any work related to that for which it had been hired.3 Sawer Electric & Mfg. Co., 11 BNA OSHC 2133,2136, 1984 CCH OSHD ll 26,982 (No. 820178,1984), @jM, 12 BNA OSHC 1445 (No. 84-1961, 4th Cir. 1985) (“Sasser”) (“[Wlhen some of the work is performed by [an independent contractor], an employer is justified in relying upon the [contractor] to protect against hazards related to the [contractor’s] expertise so long as the reliance is reasonable and the employer has no reason to foresee that the work will be performed unsafely.“). See also Blount hfl. Ltd., 15 BNA OSHC 1897, 1900 n.3, 1992 CCH OSHD lJ 29,854 (No. 89.

1394, 1992).
Southwest, however, was not cited for failing to rig the Callidus pipe properly or for
operating the crane in an unsafe manner.
Southwest was cited for failing to keep its own
employees clear from a suspended load, a condition which cannot be said to have come within the exclusive control of Mobile and, in fact, was a hazard which, as noted supra, Southwest had taken steps to address in its workplace. The responsibility, therefore, for ensuring that Southwest employees kept clear of the suspended pipe belonged to Southwest and cannot, under these circumstances, be passed off to Mobile. CJ Sasser at 2136

Indeed, when the compliance officer suggested ways in which Southwest could have abated the hazard, e.g., by rigging a safety device to the ends of the pipe to balance it, he was identifying adjustments that would have been made during the rigging process, an operation which clearly came within the scope of Mobile’s expertise and as such, under its control (Tr. 40-41, 60-61).

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(maintaining safe clearance between crane and power lines directly related to crane operation and therefore, was the responsibility of the crane operator, not the hiring employer).
Southwest contends that because it did address this hazard in its workplace, Fellows
was well aware of the risks involved in working underneath a suspended load and, therefore, his actions on that day constituted an act of unpreventable employee misconduct. In order to establish this affirmative defense, an employer must show that it had a specific workrule in place to address the hazard on which the violation is based, that it effectively communicated established workrules to its employees, that it made an effort to discover any violations of these rules, and that the rules were enforced when violations were committed. Pride Oil Well Sew., 15 BNA OSHC 1809, 1814, 1991 CCH OSHD lf 29,807 (No. 87-692, 1991). See also Archer-Wester Contmc. Ltd., 15 BNA OSHC 1013, 1017, 1991 CCH OSHD ll 29,317 (No. 87-1067, 1991), afd, 15 BNA OSHC 1953 (No. 91-1311, D.C. Cir. 1992).
According to Stonecipher, Southwest employees have been trained to stay clear of
suspended loads and loads about to be lifted since the company’s inception in 1982 and this rule was communicated to employees during routine safety meetings as well as prior to each lifting job (Tr. 63-64). Project superintendent Sligar confirmed that he warned his employees on the day of the accident to keep clear of the loads being lifted that day, noting in particular that the Callidus pipe was extremely heavy and off-balance because only one side of it had been refractorized (Tr. 70, 73-75). In addition, Sligar testified that he had specifically warned Fellows earlier that morning about staying clear of a load when he observed Fellows trying to push a board underneath a pipe with his foot (Tr.75).4
The combined testimony of these two employees demonstrates that Southwest did indeed have a workrule in place to address the hazard at issue here and that Southwest had effectively communicated this rule to its employees. But while both Sligar and Stonecipher made it clear that Southwest employees were closely monitored when working in and around suspended loads and loads about to be lifted, neither indicated whether the employees who

4 It was also revealed at the hearing that Fellows had been employed by Mobile before coming to work for Southwest and was arguably well-acquainted with the risks involved in lifting a heavy load (Tr. 74-75).

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violated this rule were disciplined accordingly. At the hearing, Stonecipher explained that under Southwest’s enforcement scheme, the violating employee would first be given a warning and if the employee continued to violate the rule, he would be terminated (Tr. 62- 63). He also testified that this particular rule was violated frequently and Southwest employees had to be “constantly reminded” to keep clear of the loads (Tr. 64-65). Despite these frequent violations and constant reminders, though, Stonecipher stated that he was not aware of a written reprimand ever having been issued to a Southwest employee and did not know of any employee who had ever been termi nated for violating this workrule (Tr. 64-65). Similarly, Sligar testified that whenever empl oyees got too close to a load, they were “immediately run off’, but failed to indicate whether disciplinary action was ever taken in these instances (Tr. 79-80).
Southwest, therefore, has failed to prove that the enforcement mechanisms identified
by Stonecipher were actually implemented with regard to discovered workrule infractions. Accordingly, an unpreventable employee misconduct defense has not been established and the alleged violation must be affirmed. Because exposure to this hazard could result in serious injury or even death, as was the case here, the violation was properly characterized as serious. Upon consideration of the penalty factors outlined in 8 17(j) of the Act, 29 U.S.C. 8 666(j), a p enalty of $3,000 is appropriate.
Based upon the foregoing findings and conclusions, it is ORDERED that the citation is affirmed, and a penalty of $3,000 is assessed.

Rf&IARD DeBENEDETTO
Judge, OSHRC
November 24, 1993
Dated:
Boston, Massachusetts