Thor Construction

Plain-English summary

Thor Construction was cited for nine serious violations during a structural-steel construction project. Before the hearing, the parties settled seven items by vacating three, reclassifying four as other than serious, and agreeing to $3,000 in penalties. The judge found that several employees worked near the building perimeter more than 25 feet above lower levels without using the safety belts and lanyards provided to them. He also found that taglines were required to control steel beams and rejected Thor's infeasibility and greater-hazard defenses. The two litigated items were affirmed with $2,750 in penalties, bringing the total penalties under the decision and settlement to $5,750.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a); 29 C.F.R. § 1926.751(d).
• Outcome: Mixed. Three settled items were vacated, four were affirmed as other than serious, and the two litigated fall-protection and tagline items were affirmed with $2,750 in penalties.
• Key point: Providing safety belts is not enough when employees do not tie off, and an employer must support infeasibility or greater-hazard defenses with evidence tied to the actual work conditions.

Full text (OSHRC public release)

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




SECRETARY OF LABOR
            Complainant
      v.                                                    OSHRC DOCKET
                                                            NO. 93-2752
THOR CONSTRUCI’ION
            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 Febnrary 3,199s. The decision of the Judge
will become a final order of the Commission on March 6, 1995 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.



   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. DO5
                       Room S4004
                       200 ConstitutionAvenue, N.W.
                       Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represint the Department of Labor. hY Party
havrng questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
                                       FOR TEIE COMMISSION


Date: February 3, 1995

DOCKET NO. 93-2752
NOTICE IS GIVEN TO THE FOLLOWING:

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

Benjamin T. Chinni
Associate Regional Solicitor
OfEice of the Solicitor, U.S. DOL
Federal Office Buildmg, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Patrick H. Bo Esq.
Lane, Alton &% ‘orst
175 South Third Street
Columbus, OH 43215

Michael H. Schoetield
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00018014795:05
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003643419

SECRETARY OF LABOR,

  Complainant,

           v.                                     Docket No. 93-2752

THOR CONSTRUCTION, INC,

  Respondent.

Appearances:

   Elizabeth I1 Ashley, Esq.                       Patrick K Born Esq.
           Of&e of the Solicitor                           Lane, Alton ds Hoist
           US Department of Labor                          -hunbus, Ohio
                 For Complainant                                   For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

                                DECISION ANT3ORDER

Bac&round and ProceduralHistorv

   This case arises under the Occupational Safety and Health Act of 1970,29 USC. Q 5

651-678 (1970) (“the Act”).
Having had its work&e inspected by a compliance officer of the Occupational Safety
and Health Acfministration, Thor Construction, Incorporated, (“Respondent”) was issued one
citation alleging 9 serious violations of the Act and proposing a total civil penalty of $14,875.
Respondent timely contested. Following the filing of a complaint and answer and pursuant
to a notice of hearing, the case came on to be heard in Columbus, Ohio. No afkcted
employees sought to assert party status. Both parties have filed post-hearing brief&.

    Complainant alleges and Respondent does not deny that it is an employer engaged

in general contracting. It is undisputed that Respondent uses tools, equipment and supplies
which have moved in interstate commerce. I find that Respondent is engaged in a business-;
affecting interstate commerce.
Iksed on the above finding, I conclude that Respondent is an employer within the
meaning of 3 3(5) of the Act.’ Accordingly, the Commission has jurisdiction over the
subject matter and the parties.

Discussion
Of the originally alleged 9 serious violations only 2 (Items 7’and 8) remained at issue
at the hearing.2

Item 7 - 29 C.F.R. S 1926.1OS(a)(l>
Item 7 of the citation, as amended, alleged that Respondent violated the construction
safety standard at 29 C.F.R. 8 1926.105(a) by fkiling to provide fall protection to its
employees who were working at the perimeter exterior portion of the building at heights
exceeding twenty-five f=t.3

1 Title 29 USC      5 652(S).

 2 A partial stipulation and settlement agreement was entered into by the parties prior

to the hearing. Only items 7 and 8 were not settled. The frilly executed partial settlement
is attached and is incorporated in its entirety. It meets all of the requirements of Rule 100
and accordingly, it is approved.

3    Section 1926.105(a) provides:

           safety nets shall be provided when workplaces are more than
           25 fwt above the ground or water surfke, or other surkes
           where the use of ladders, scafEolds,catch platiorms, temporary
           floorq safety lines, or safety belts is impracticaL

The inspecting Compliance Officer testified that on several occasions during the
course of his two day inspection he obse~ed employees of Respondent, both welders and
connectors, working at or very close to the perimeter of the structural steel bework
without any operative means of fall protection. (Tr. 17018,2&22,23,24-25,26-27,33-34,34-
35,36-37). He frequently referred to a videotape he made during his inspection (CX -1).
Although welders getting ready to weld or actually welding appeared to the Compliance
Officer to be wearing safety belts he testified that the belts were not in use in that they were
not tied off ur. 18,21,24,26,28,29,31,32,34). At times, he said, some welders were tied
off while working.
Respondent challenges the Secretary’s factual assertions. Respondent does concede
that the Compliance Officer’s testimony and videotape shows one employee engaged in
conmcting a beam to a column while not using his safety lanyard. (Resp. brieE, p. 3).
Respondent maintains that the factual testimony of the Compliance Officer should be
disregarded due to lack of credibility. It argues that his failure to take videotape recordings
of the employees he claims were unprotected Tom other, better angles of view renders his
testimony infirm Respondent makes much of the Compliance Officer’s somewhat hesitant
testimony that in places the videotape is less than clear as to whether a par&&r individual
is or is not tied off. Moreover, Respondent argues that the Secretary can not make ap&u
facie case against Respondent because the Compliance Officer failed to show that the
welders were “in factwworking at the outside perimeter of the building. (Resp. brieE, p. 12).
Finally, Respondent suggests that the Compliance OfEcer is ‘overzealous” to a degree
warranting discounting his testimony. Respondent’s arguments suggest a prejudice or bias
to such a degree as to render the testimony of the Compliance testimony inadmissible or,
at least, unreliable. I decline to so find and for the reasons which follow, I credit the
compliance officer’s testimony.
First, the f&We to document by videotape each and every factual observation made
by a compliance officer is to be expect& It is simply impossible to tape every moment of
an inspection which could well last several hours over a period of several days. In addition,
inexperience in conducting inspections as well as inexperience in operating a video camera
could well account for less than clear showing of each and every instance of an alleged
 4
violation. The fact that a particular scene at an event being videotaped does not appearin
the tape does not necessarilymean that the condition did not exist. Finally, Respondent has
shown nothing indicating a bias, prejudice or inability to observe on the part of the
Compliance Oflicer.
Respondent also challenges the Compliance officer’s description of many of the
welders as being seen working at the exterior perimeter of the structural steel hework.
(Resp. briec Pp. 12-13). Respondent points to testimony fkom two of the employees
identified as working at the perimeter. One employee states, on watching the videotape,
that he was working from an interior cross beam, not at the exterior perimeter. Another
claims that he was “several feet” from the exterior perimeter of the building. Respondent’s
claim is rejected, Again, there is no challenge to the claim that at least several employees
were observed or videotaped, or both, while working near enough to the exterior perimeter
so that a fkll could have propelled them over that edge. Given the cited standard’s
applicability and purpose of protecting against just such ~&US,the Compliance Officer’s
misjudgment as to precisely how close to the outer edge certain unprotected employees were
working is minor in that it has not been shown that they were, in f&t, so f&r away as to
preclude their falling off the perimeter should they have slipped and fkllen. Respondent
cites testimony by its project Superintendent in support of its contention that its employees
were, in fact, tied of& (Resp. brieE, p. 10). I accord less weight to the Superintendent’s
testimony than that of the Compliance Ofker. The Superintendent, even in the passage
cited by Respondent (Tr. 191), conceded that at least some employees were, at times,
working without tying off. Accordingly, I find that several of Respondent’s employees were
working within the zone of danger of falling fkom the perimeter while unprotected by an
operative safety belt/lanyard or other kind of f&IIprotection.
In general, to prove a violation of a standard, the Secretary must demonstrate by a
preponderance of the evidence (1) that the cited standard applies, (2) non-compliance with
the terms of the standard, (3) employee exposure or access to the hazard created by the
non-compliance, and (4) the employer knew or, with the exercise of reasonable diligence,
could have lmown of the condition.Astm Phannaceutical~ Ii., 9 BNA OSHC 2126,
2129 (No. 7&6247, 1981); Dun-Par EngineeredForm Co., 12 BNA OSHC 1949 (No. 79-
2553), revId & temanded on othergrwutdr, 843 F.2d 1135 (8th Cir. 1988),decision (313
remand
13 BNA OSHC 2147 (1989). The cited standard has had a long and arduous history of
litigation. Numerous administrative law judges, review commission members, district judges
and courts of appeals judges have had the opportunity to review, discuss and interpret this
Standard

       The cases in which the Secretary has demonstrated that employees were subjected

to the hazard of falls of twenty-Eve feet or more and none of the devices listed in the
standard were used have long been regarded as establishing a prima facie case of violation.
See, Stute Sheet Metal Co., 16 BNA 1155,1158 (No. 90-1620,1993) and cases cited therein.
Cases in which fti protection (usually safety belts and lanyards) was used some of the time
but not during the entire work day have been more common In dealing with this situation,
the Commission recently held;
[t]o prove that safety nets are required under section 1926.105(-
a), the Secretary must show that employees were subjected to
fhlls of twenty-Eve feet or more and that none of the other
safety devices listed in the standard were practical - meaning
that they [were] either not in use or [were] in use but [were] not
practical because they [did] not protect against the cited f’all
hazard for a substantial portion of the workday. (Citation
omittedo)

American Bridge/‘hcon, JX, 16 BNA OSHC 1867, 1868 (No. 91-633, 1994). The
Commission went on to state that the cited standard requires fall protection even where the
fall hazard exists for a small f&tion of the work day. Id. Under the facts of this case,
several employees were subjected to falls of twenty-five feet or more on several occasiofls
during a two day inspection, because the safety devices provided to them (belts/lanyards)
were not used. No other safety devices were in use at alL Accordingly, I conclude that the
Secretary has made a prima facie case of a violation of the cited standard Respondent
argues that the use of safety nets or safety belts and lanyards was not farWe on this
project (Resp. brief, p. 15). In regard to safety belts and lanyards, Respondent can only
point to other instances where evidence demonstrated that under the circumstances of those
cases belts and lanyards could not be used for &actions of the working conditions.
Respondent does not point to any such evidence in this case. I find that there is no
convincing evidence that safety belts and lanyards could not have been used under the
circumstances of this case. Respondent’s defense is rejected.
In regard to safety nets, Respondent takes strong issue with the tatimony of Steven
Medlock Called as an expert witness by complainant, Mr. Medlock is an OSHA
compliance officer with nine years of experience. Complainant proffered Mi, Medlock as
an expert witness in the area of fall protection. He was so qualified pursuant to Fed. R.
Evid 702. (Tr. 112-119.) I consider Mr. Medlock’s testimony to be of little evidentiaryvalue
even though he was qualified as an expert.
The testimony of an expert is not necessarily controlling even if it is unrebutted.
united States Steel Corp. v. OSHRC, 537 F.2d 780 (3d Cir. 1976). In cases before the
Commission;
k]enerally speaking, where employees testify from their own
knowledge and experience on matters that pertain to their
specific work activities, their testimony should be given greater
weight than that of witnesses who do not have first-hand
experience with the operation in question.
Con-Agm F%nu Mixling Co., 16 BNA OSHC 1137, 1141 (No. ss-1250, 1993)(citations
omitted).
In this case, Mr. Medlock’s “expert’ opinion that safety nets (as well as numerous
other safety devices) could have been used on the building under construction lacks a
reasonable rational foundation. It is also contradicted by those with considerable experience
in the real world of construction. Mr. Medlock has hardly any experience in construction.
(Tr. 139-143). Some of Mr. Medlock’s experience and training may be a sufficient basis for
him giving opinion testimony about fall protection generally. The record in this case,
however, clearly demonstrates that he had little or no basis to testify as to the practicality
of nets (and other devices) under the circumstances at this work site. His sources of
knowledge as to the specific conditions at the work site at issue is limited to conversations
he had with the inspecting compliance officer, reviewing only part of the inspection file for
a brief period, reading the citation and viewing the videotape. (Tr. 119-121,137,145). This
witness never saw the building while under construction. He visited it as a completed
building only one week before the hearing. Mr. Medlock never saw any sketches, plans or
blueprints for the building. He nonetheless offered detailed opinions as to how nets and
other safety devices mild have been installed at the project. If there were significant
evidence showing that the building under construction was suf!ficientlysimilar to others which
Mr. Medlock had studied or had experience with, his opinion testimony might be regarded
to have some basis. There is clear, unrebutted evidence, however, that the manner in which
this particular building was constructed was atypical in that the configuration of the
structural steel was unusual. (Tr. 189-190,237,247-248). Even Mr. Medlock agreed that the
feasibility of each particular safety device at a specific location is dependent on the particular
conditions at that project. (Tr. 144). Under these circumstances, I find that Mr. Medlock’s
opinion testimony as to the feasibility of using myriad safety devices was so lacking in
reasoned, rational foundation as to be unreliable. Mr. Medlock’s theoretical testimony
regarding the use of nets on this project is also contradictexi by severzil employees who have
many years experience in the construction industry. (Tr. 189-190,216,224,237,247-248,255-
256). I assign more probative weight to the cumulative testimony of these experienced
employees. Finally, Mr. Medlock’s credibility as a witness is questionable. In is reasonable
to anticipate some bias when a full time employee of a party is called as an “expert” by that
party, as opposed to the party engaging the services of an independent consultant.
Moreover, Mr. Medlock was not called upon to participate in this case in order to prepare
for litigation as is the usual expert witness. Mr. Medlock apparently as the area office fall
protection coordinator for the Cincinnati OSHA office (EL C-2), took part in the
determination to amend this item of the citation in regard to the standard allegedly violaWL
(Tr. 120-121). Mr. Medlock’s earlier participation in this case in the role of an OSHA
officer participating in prosecutorial type decision making compromises his status as an
“expert* as well as his crediiility in general! Considering all of the above factors, I find

 ’ In this regard it is noted that Mr. Medlock’s resume identifies three cases in which he

testified on fall protection and carry the notation “*Qualified Expert Te~timtimony.~ Of the
three ases one, “Baker Concrete Construction” could not be found Another, “Mutual
Erectors, Inc.” is Mti Erecto- Ike., 16 BNA OSHC 1650 (No. 92-1799, in which Mr.
M&lock was the inspecting compliance officer who was designated an “expert” at the
that Mr. Medlock was not a credible witness.
Assigning no weight to Mr. Medlock’s testimony does not, however, esablish any of
Respondent’s defenses to the alleged violation. The Secretary has established that
employees were subject to falls of twenty-Eve feet or more which could have been protected
against had they used the safety belts and lanyards with which they were provided and which,
for the most part, they were wearing. There is no showing that the laqards could not have
been tied off during the operations observed, The lack of reliable evidence as to the
practicality of using any other safety devices is thus irrelevant. Item 7 of the citation is
affirmed.
The Secretary proposed a penalty of $1750. Respondent contested the proposed
penalty assessment and denied in its answer (1 V) that the proposed penalties were
appropriate. The Secretary presented scant evidence as to how the proposed penalty
amount was calculated pr. 58-60). Respondent did not crme the Compliance
Of&r as to his penalty proposals. Respondent did not present its own evidence relating
to penalty assessment nor did Respondent argue or present reasons in its post-hearing brief
that the penalties as proposed were inappropriate. The Commission has held that it is not
required “to develop arguments not articulated by the parties whenever exception is taken
generally to the size of the penalties asxssed by tie judge.” RobertsPipe&e Cortsftuction,
Iizc., 16 BNA OSHC 2029, 2030 (No. 91-2051, 1994). It follows that the Commission’s
administrative law judges need not develop those arguments for parties not doing so for
themselves. Nonetheless, it is the Commission’s respons~Mity to arrive at an appropriate
penalty in light of the statutoryfacctor~?based upon the record made by the parties, while

hearing. The third, “Kokosing,”is Kokosing C&zsb~& Co., Iiw., BNAOSHC 9
(No. 92-2596, September 811994) (ALJ) (directed for review by theommission, October
7,1994). In that case, the administrative law judge concluded that “Mr. Medlock is not a
credible witnes~.~ (Slip op. p. 14).

5 Section 17(j) of the Act, 29 U.S.C. 5 666(i), provides;

           (‘j) The Commission shall have authority to assess all civil
           penalties provided in this section, giving due consideration to
           the appropriateness of the penalty with respect to the size of

considering the Secretary’s penalty proposal merely that - a proposal
It appears fkom the record that Respondent employs 65 to 75 people and may have
as many as 12 projects under way simultaneously. The business as a whole grosses approxi-
mateb 9 or 10 million dollars per year. In its geographic area, it is regarded as a middle
sized construction company. (Tr. 252). The net worth of Respondent is less than 7 million
dollars. (Tr. 253). There is no claim or evidence that Respondent has been cited previously
or exhibited anything less than good faith in dealing with OS= While not precisely
clear, it appears that several employees were exposed to the fall hazard at various times and
at various locations during the inspection. In light of the all of the above and considering
that the finding of a serious violation requires the assessment of some monetary penalty up
to a maximum of & 7,000$ and emphasizing that neither party contends otherwise, I.
conclude that the proposed civil penalty of $1,750 is appropriate for this item.

Item 8 - 29 CF.R 8 1926.751(d).
Section 751(d) states that “tag lines shall be used for controlling loads-” It is
undisputed that the Compliance officer obse~ed steel beams being move both fiorn the
ground to hi@er elevations for connecting and near the ground for sorting (Wake out’)
purposes. (I’r. 46 - 62, EK C-l).
Complainant, in its post-hearing brief, maintains that “the standard presumes the

          the business of the employer being charge the gravity of the
          violatioq the good faith of the employer, and the history of
          previous violations.

See, also, Ntiemu opemting Company, 1 BNA OSHC 1001 (No. 4,1972).

6 Section 17(b) of the Act, 29 U.S.C. 0 666(b), provides;

          (b) Any employer who has received a citation for a serious
          violation of the requirements of section 5 of this Act, of any
          standard, rule, or order promulgated pursuant to section 6 of
          this Act, or of any regulations prescribed pursuant to this Act,
          shall be assessed a civil penalty of up to $7,000 for each such
          violation.

existence of a hazard and mandates the use of tag line&’ (Sec. Brief, p. 19). Also, the
Secretary points to the Compliance Officer’s testimony to the effect that ironworkers who
were connecting the steel (at heights of approximately 48’ above the ground) had to reach
out to control the steel. As to the steel beams in the “shake out,” which were being lifted
about 8’ to 10 above the ground, employees on the ground reached out and touched the
steel as it was being lowered into place.
At the outset, the Compliance Officer opined that taglines %hould be used whenever
steel is being moved.” (Tr. 95). After additional questioning he appeared to agree that tag
lines are required where the lifting and moving of steel exposes employees to the hazard of
being struck by the steeL (I?. 106). This condition could exist, according to the Compliance
Ofticer, only where Were were no employee[s] in the area.” In sum, the Compliance
Of&r contr&licted himself and changed his interpretation of the requirements of the cited
standard several times while testifying. Nonetheless, Respondent “concedes that the
Secretary can maintain its burden of proof in establishing a prima facie violation of this
section.” (Resp. brie& p. 22).
Respondent argues, however, that tag lines were used except where infeasible or
where their use created a greater tici. Relying on the administrative law judge’s decision
in T7kmuzs Lhd!sbvm Company, Inc., BNA OSHC (No. 92-3815, 1993),
Respondent points to the testimony of theironworker crew leader and its crane operator
that tag lines were used on some steel while, once several levels of construction were
reached, tag lines would have created problems in that ground men would have to take the
lines in and around numerous upright steel beams (columns) which could result in snags and
tangles. At least one attempt at using a tag line resulted in such a snag. (Tr. 215-16; 232-
33). Thor reasons that three methods of controlling steel being raised were available; by
hand, by crane and by tag line. It maintains that it used tag lines then feasible, and when
tag lines could not be used, it relied on hand and crane control. Respondent’s defense
sounds plausible but is not supported by a preponderance of the evidence of record
In order to prevail on the infeasibility defense an employer must show that 1)
compliance with the standard’s requirements would “not be practical or reasonable in the
circumstances.” Dun-Par Engineered Form Co., 12 BNA OSHC 1%2, 1966 (No. 82-0928,
1986) and 2) “that an alternative protective measure was used or that there was no feasllble
altemative measure.” SkibdModent Manrcfactuting & Welding Op., 15 BNA OSHC 1219,
1228 (No 88-821, 1991). Respondent’s defense &ils here because the evidence does not
show that the use of tag lines was not practical or reasonable under the circumstances which
eYEistedinthiscase.
First, as to steel being raised to the upper levels and root the fktual testimony on
which Respondent relies for its argument that tag lines would get entangled is primarily
based on the witnesses assumption that tag lines would have to be long enough to be held
by a person on the ground at all times. (Tr. 215-16, 223, 239, 242). This assumption is
incorrect. The appropriate length of a tag line depends upon the circumstances under which
the steel is being raised and the nature of the hazard the lift presents to employees. L R.
won wad sknq Iiac., BNA OSHC (No. 93-0785, CM 5, 1994). The only
testimony that a shorter tag line might present a problem was speculation by the crane
operator that a iive foot tag line hanging down from a steel beam being lifted over other
columns presents “a chance it could get hung up on a flange.” (Tr. 239). In fact, Respondent
never attempted to use tag lines shorter than 60 feet, (Id.). Respondent presents no
evidence that the use of tag lines on the steel being sorted (shake out) was inkas~ible.
Similarly, to the extent that it raises the argument, Respondent has not shown that
the use of tag lines would have created a greater hazard’ While it maintains that it would
be hwdous for a steel worker acting as a connector to reach and hold a tag line attached
to a steel beam in order to guide the beam into place, it concedes that its co~ectors
reached and by hand, held on the beams themselves. It presents no reason which would
SUPport the conclusion that a connector would have been at greater risk reaching for and
holding on to a tag line than he was reaching for and holding on to the beam itself.
Respondent’s defenses are rejected. I conclude that Respondent failed to comply with the

’ In order to establish the “greater hazard” affirmative defense, an employer must

demonstrate by a preponderance of the evidence that (1) the hazards of compliance are
greater than the hazards of non compliance, (2) alternative mm of protection are
unavailable, and (3) a variance was unavailable or inappropriate. Spancrete Northeasz; Inc.,
15 BNA OSHC 1020 (No. 86521, 1991).
 -12-
standard at 29 C.F.R. 5 1926.751(d), as alleged. Accordingly, Item 8 of the citation is
AFFNMED.
As to penalty, consideration is given to the factors as discussed relating to item 7.
In addition, based upon the testimony as a whole, I find that the likelihood of an injury
occurr@ due to the lack of tag lines is small despite the f&t that if such an incident
occurred a connector could have fallen to his death fkom a height of about 40 feet. In
addition, at most, four of Respondent’s employees (2 connectors at heights and 2 employees
on the ground) were exposed to any hazard co~ectedwiththelack of the use of tag lines,
pr. 57). Given the lesser employee exposure both in terms of number of employees
affected as well as a lower likelihood of injury, I conclude that a penalty of $1,000 is
appropriate for item 8.

                               FINDINGS OF FACT
   All findings of fact necessary for a determination of all relevant issues have been

made above. Fed R. Civ. P. 52(a). All proposed findiqs of fact and conclusions of law
inconsistent with this decision are hereby denied,

                              CONCIUSIONS OF LAW
   1. Respondent was, at all times pertinent hereto, an employer within the meaning

of 0 3(S) of the Occupational safety and Health Act of 1970,29 U. S. C g 6 6510 678
(1970).
2 The Occupational safety and Health Review Commission has jurisdiction ovef the
parties and the subject matter.
3. Respondent was in violation of the co~truction safety standard at 29 C.F.R
0 1926.105(a) as alleged in item 7 as amended. A civil penalty of $1,750 is appropriate
therefor.
4. Respondent was in violation of the comtruction safety standard at 29 C.F.R.
6 1926.751(d) as alleged in item 8 as amended. A civil penalty of $1,000 is appropriate
therefor.
 1. Item 7 of the citation issued to Respondent on or about September 30, 1993 is
AFFIRMED. A civil penalty of $1,750 is assesed therefor.
2. Item 8 of the citation issued to Respondent on or about September 30, 1993 is
AFFNMED. A civil penalty of $1,000 is assessed therefor.

                                       MICHAEL H. SCHOENFEE
            *2ll9s                     Judge, OSHRC  .

Dated:
\Nashington, D.C.
U.S. Department of Labor Office of the Solicitor
881 Federal Office Building
1240 East Ninth Street
Cleveland, Ohio 44199
(216) 522-7546

                                          Reply to the Attention   of:

August 24, 1994

                                                                                 -.

Hon. Michael H. Schoenfeld .-..
I. *’ -.
-.
.-

Administrative Law Judge ‘. -
es

Occupational Safety and
Health Review Commission
One Lafayette Centre
1120 20th Street, XJ?.
Room 980
Washington DC 20036-3419

Re l
0 Secretary of Labor v. Thor Construction Inc.,
OSHRC Docket No. 93-2752

Dear Judge Schoenfeld:

Enclosed please find a fully executed partial settlement
agreement for filing in the above-referenced matter. Thank you
for your cooperation in this matter.

Sincerely,

BENJAMIN To CHINNI
Associate Regional Solicitor

ELIZABETH R. ASHLEY
Trial Attorney

cc: Patrick Boggs

SOL:ERA:ba SOL NO. 20403
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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SECRETARY OF LABOR, 0
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Complainant, 0
0 OSHRC
0 Docket No.
v. 0 93-275&L-
0
O
Region V
THOR CONSTRUCTION INC., l
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                Respondent.                      0
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              PARTIAL    STIPULATION         -       SETTLEMENT   AGREEMENT

 The     parties        hereby   enter into this partial              stipulation   and

settlement agreement which disposes of specific issues set forth

between the Complainant, Secretary of Labor, and the Respondent,

Thor Construction Inc., that:

 1 0- The Secretary          agrees to vacate and dismiss Item Nos. 1, 2

and 5 of Citation No. 1.

 2 0 .- Item No.         3 of Citation No, 1 shall be amended                    to and

affirmed as an other than serious violation.

 3 0','Item No.          4 of Citation No. 1 sh.all be amended                   to and

affirmed as an other than serious violation.

 4 0-. Item No.           6 of Citation No. 1 shaii                 be amended   to and

affirmed as an other than serious violation.

 50      Item No.         9 of Citation No. 1 shall be amended                   to and

affirmed as an other than serious violation.

 60      The     total    penalty          due for the affirmed        items outlined

above in paragraphs 2-5 is $3,000.00 which the Respondent agrees to

pay to the Complainant when this agreement becomes a final order of

the Review Commission.
 70 Respondent hereby withdraws its notice of contest with

respect to Citation No l 1 I Items 1-6 and 9 and the proposed

penalties associated with those items as as modified by the terms

of this Agreement.

  8   l   Respondent represents that the conditions described in the

affirmed items of the citations referred to in this Agreement have

been abated.

  9   l   The parties agree to the entry of a final order consistent

with the terms of this Agreement.

  10 0     Each party hereby agrees to bear its own fees and other

expenses incurred by such party in connection with the items

resolved in this partial settlement agreement.

  11 0         The    terms     and conditions           of this      Partial    Settlement

Agreement are a comprised settlement of disputed claims, the

validity, existence and merits of which are expressly denied by the

Respondent. It is understood and agreed by the parties hereto that

this Partial Settlement Agreement including any and all statements,

stipulations and actions taken by Respondent hereunder, does not

constitute and shall not be construed as an admission by the

Respondent of the allegations contained in the citations at issw

in this proceeding. The agreements, statements, stipulations, and

actions taken herein by Respondent are made solely for the purpose

of settling this matter economically and amicably and they shall

not be used for any other purpose except for subsequent proceedings

and matters between the parties arising directly under the

Occupational Safety and Health Act of 1970.

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12 0 Respondent certifies that a copy of this Agreement will

be posted at its Columbus, Ohio facility this ,33, day of
&d I 1994 to afford notice to its affected

FOR RESPONDENT:- FOR COMPLAINANT:
I
cl l&h&
ELIZ%BETH i. ASHLE93
Attorney for Compl&ant
Lane, Alton & Horst UoSe Department of Labor
175 South Third Street 881 Federal Office Building
COlumbUS, Ohio 43215-5100 1240 East Ninth Street
Cleveland, Ohio 44199

                                  OF COUNSEL:

                                  THOMAS S. WILLIAMSON,        JR.,
                                  Solicitor of Labor

                                  JOHN H. SECARAS
                                  Regional Solicitor

                                  BENJAMIN To CHINNI
                                  Associate Regional Solicitor

Any party (including any authorized employee representative of

affected employees and any affected employee not represented by an

authorized representative) who has any objection to the entry of an

order as set should communicate such objections within ten (10)

days of the posting of this Agreement to:

                Hon. Michael H. Schoenfeld
              Occupational Safety and Health
                     Review Commission
                   One Lafayette Center
                  1120 20th Street, N.W.
                          Room 980
               Washington, D.C.    20036-3419

A copy of said objection should also be sent to:

                    Elizabeth R. Ashley
                U.S. Department of Labor
               881 Federal Office Building
                  1240 East Ninth Street
                  Cleveland, Ohio 44199