Armstrong Steel Erectors, Inc.

Plain-English summary

Armstrong Steel Erectors was erecting steel on an I-71 bridge overpass in
Cleveland, Ohio, when OSHA inspected in August 1993 and cited it for a
serious fall-protection violation. Compliance officers videotaped
ironworkers moving across unguarded girders more than 25 feet up without
using the lanyards and harnesses they had. Administrative Law Judge James
H. Barkley held that the company violated the safety-net standard because
its employees were exposed to falls over 25 feet while traveling the steel
and continuous protection with catenary lines was practical, including
lines that could have been installed on the girders before they were
raised. He rejected the company's defenses: industry practice of free
movement is not a defense, the employee-misconduct argument did not matter
because the citation rested on ironworkers in motion, and the greater-hazard
defense failed because the company never applied for a variance. The
violation was affirmed as serious with the stipulated $2,500 penalty. The
alternative citation under 29 C.F.R. § 1926.28(a) was not reached.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a) (safety nets / fall protection over 25 feet); 29 C.F.R. § 1926.28(a) (personal protective equipment, cited in the alternative and not reached).
• Outcome: Affirmed. Serious citation 1, item 1 under § 1926.105(a) upheld with a $2,500 penalty.
• Key point: Employers must provide continuous fall protection for ironworkers traveling the steel where a catenary-line system is practical; common industry practice and an untried variance route are no defense.

Full text (OSHRC public release)

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

SECRETARY OF LABOR
Complainant
v. OSHRC DOCKET
NO. 93-2691
ARMSTRONG STEEL ERECTORS, INC.
Respondent.

                         NOTICE OF DOCKETING
          OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Re rt in the above referenced case was

docketed with the Commission on Otto is r 28,1994. The decision of the Judge
will become a final order of the Commission on November 29, 1994 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 FIIE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
November 17, 1994 in order to permit suf!Eicientime 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
Ofbe of the Solicitor, U.S. DOc
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
Re@onal Trial Litigation will represent the Department of L&or. Any pasty
havrng questions about review nghts may contact the Cowlon’s Execubve
Secretary or call (202) 606-5400.
FOR THE COhMISSION

Date: October 28,1994
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R
DOCKET NO. 93-2691
NOTICE IS GIVEN TO THE FOLLDWING:

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



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



Roger L Sabo, Esq.
Schottenstein, 20x & Dunn
HUtl’ on Center
41 Sou
    ‘“$ Hi Street
Culumbus, 8 H 43215



James H. Barkley
Administrative Law Jud e
Occupational Safety and Health
  Review &nmiss~on
Room 250
1244 North S er Boulevard
Denver, CO r 0204 3582




 00108832510:05

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                                     UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                  1244 N. Speer Boulevard
                                         Room 250
                                Denver, Colorado 80204-3582




SECRETARY         OF LABOR,

                              Complainant,

      v.                                                        OSHRC DOCKET
                                                                NO. 93-2691
ARMSTRONG         STEEL ERECTORS,           INC.,

                              Respondent.



      APPEARANCES:

              For the Complainant:

                      Betty Klaric, Esq., Office of the Solicitor,
                       U.S. Department of Labor, Cleveland, OH

              For the Respondent:

                      Roger L Sabo, Esq., Columbus, OH


                                    DECISION AND ORDER
Barkley, Judge:
       This proceeding arises under the Occupational            Safety and Health Act of 1970 (29
U.S.C., Section 651, et. seq, hereafter referred to as the Act).
       Respondent, Armstrong Steel Erectors, Inc. (Armstrong), at all times relevant to this
action maintained   a worksite at the I-71 overpass at 4001 Ridge Road, Cleveland Ohio,
where it was engaged in steel erection         (Tr. 61-62).     Armstrong has approximately   100
employees, seven of whom were employed at the I-71 worksite (Tr. 99). The Commission
has held that construction     is in a class of activity which as a whole affects interstate

commerce. Clarence A4 Jones d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH
OSHD ll26,516 (No. 77-3676, 1983). Armstrong is, therefore, an employer engaged in a
business affecting commerce and is subject to the requirements of the Act.
Pursuant to an August 23, 1993 inspection of Armstrong’s Cleveland worksite, the
Occupational Safety and Health Administration (OSHA) issued a “serious” citation, together
with proposed penalties, alleging, in the alternative, violation of 29 C.F.R. $1926.28(a) and
1926.105(a). By filing a timely notice of contest Respondent brought this proceeding before
the Occupational Safety and Health Review Commission (Commission).
On June 21, 1994, a hearing on the merits was held in Cleveland, Ohio. The parties
have submitted briefs on the issues and this matter is ready for disposition.
Alleged Violation of (jl926.105fal
Citation 1, item 1 alleges:
1926.105(a) where employees were performing work duties on a bridge greater than 25 feet
above the ground the employer did not provide safety nets where the use of scaffolding
systems, catch platforms, and static/catenary lines in conjunction with safety belts or other
harnessing systems was impractical.

    4000 Ridge Road Overpass to Route 71: Employees were exposed to greater than
    25 foot falls without fall protection while detailing an undecked bridge.

Facts
OSHA Compliance Officers (CO) approaching Armstrong’s worksite at the I-71
overpass observed and videotaped a number of Armstrong employees on the unguarded
steel girders (Tr. 67-68,. 79-80; Exh. C-2). One employee working on a float scaffold with
an impact wrench was tied off (Tr. 129); however, the majority of the workers, although they
had lanyards and harnesses, were not using them (Tr. 70; Exh. C-2). Two of those workers,
identified as Armstrong employees Sabo and Die&, were welding rockers from the top of
two bridge piers (Tr. 71.73,148,160,168; Exh. C-2, C-5 through C-9, C-13). A third uniden-
tified worker laid cross bracing between two girders (Tr. 71; Exh. C-2). A foui-th walked
unprotected on the girders above the pier where Dietz was working (Tr. 72; Exh. C-2).
CO David Bunton testified that prior to the hearing he returned to the bridge site to
measure the height of the piers on which Sabo and Dietz were working (Tr. 77-78). Bunton

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found that each of the piers were taller than the 25 foot calibrated engineering rod he had
with him (Tr. 78-79).
Armstrong’s stated company policy is that ironworkers are tiee to move about the
steel until they reach their work stations (Tr. 121). When performing work from a stationary
position, however, Armstrong employees are required to tie off (Tr. 121, 216, 251, 288).
Sabo and Dietz both testified that they did not use fall protection while moving about
on the iron (Tr. 182,192). Sabo admitted that he was not using fall protection while welding
on the day of the inspection (Tr. 174-76). Dietz maintained that he was tied off “more often
than not” (Tr. 186), and stated that he believed he was tied off at all times when he was
welding (Tr. 189). However, Charlie Blake, Armstrong’s foreman, testified that on the day
of the OSHA inspection, Dietz admitted he was not tied off (Tr. 257, 265).
Discussion
In order to establish a violation of 51926.105(a), the Secretary must establish that
Respondent’s employees were exposed to falls in excess of 25 feet and that the use of safety
harnesses and lanyards was practical. Falcon Steel Co., 16 BNA OSHC 1179, 1993 CCH
OSHD ll30,059, (No. 89-2883 & 89-3444).
The evidence establishes that Armstrong employees were exposed to falls from
heights over 25 feet while moving on the steel to access their work areas.
Complainant also established that it would have been practical to provide continuous
fall protection with a safety belt and lanyard system at this worksite. CO Bunton testified
that continuous fall protection is practical (Tr. 100~102), and is in use by at least one other
company in the steel erection industry (Tr. 136). At the time of the inspection, the vertical
bridge members had been erected (Tr. 291). Bunton stated that it would have been
practical to install static or catenary lines at that point (Tr. 100402). Specifically, Bunton
described a glider system, which allows uninterrupted travel on the catenary line by means
of a ball in groove, which allows a lanyard to slide around stanchions (Tr. -329.331)?
Further, such system could be installed in the girders while they were on the ground prior

1 Bunton also testified that it would have been practical to erect scaffolding under the portion of the
I-71 bridge over the median strip (Tr. 169, or to suspend a catch platform f!romthe bridge (Tr. 166).
At the time of the inspection, some planking was in position (Tr. 101, 151-52;Exh. C-2).

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to their erection on the bridge. Russell Duskey, Annstrong’s manager of structural steel,
admitted that the stanchions for such a system could be installed on the girders on the
ground prior to raising them to their vertical position (Tr. 296).
Roy McIntosh, Armstrong’s vice president testified that the erection of structural steel
on the I-71 bridge project was incomplete at the time of the OSHA inspection. The main
beams had been erected, but cross frames were still being installed. McIntosh stated that
installation of catenary lines prior to the completion of structural steel erection is infeaslble
(Tr. 225). McIntosh, who admitted he was not an expert in either steel erection (Tr. 225),
or in safety matters (Tr. 225.27,238.39), could not explain why installation was not practical
prior to installation of the cross frames.
Nothing in the record establishes that the crossbraces must be bolted up before static
lines are installed. At the time of the inspection, some stanchions and catenary lines had
been erected though they did not extend into the areas where Armstrong’s employees were
working (Tr. 74, Exh. C-2). In addition, Foreman Blake testified that cables were installed
following the OSHA inspection, and that employees were able to perform their job duties.
(Tr. 262-63, 266). The undersigned finds, therefore, that a catenary line could have been
installed, and that employees walking the steel could have been tied off at the time of the
OSHA inspection?
Finally, this judge notes that the evidence in this case indicates that it is the common
practice in the steel erection industry for ironworkers to travel from point to point without
continuous fall protection (Tr. 134-35, 142-44, 289). Industry practice, however, though
relevant, is not dispositive. To hold otherwise would allow an entire industry to avoid
liability by maintaining inadequate safety. See State Sheet Metal Co., 16 BNA OSHC 1155,
1993 CCH OSHD V30,042 (90-1620 & 90-2894, 1993); Fanens Tree Surgeons Inc., 15 BNA

2 Armstrong specifically maintains that the use of safety belts is impractical for ironworkers in the
proc& of placing crossbraces. Crossbraces are large pieces of angle iron weighing from 100 to 190
pounds apiece, which must be carried by two ironworkers walking on separate girders (Tr. 267,292).
Respondent maintains that an ironworker using a catenary line would be forced to set down his load,
unhook and rehook his safety harness at each location where the line attaches to a girder (Tr. 293-94)
Respondent’s contentions need not be addressed here, however, as none of the employees
observed or cited by OSHA were carrying crossbraces.

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OSHC 1793, 1992 CCH OSHD lI29,770, (No. 90-998, 1992). In addition, individual industry
participants would be Eree to ignore new developments in the field of employee health and
safety.3
EmDloyee Mkconduct
Armstrong raises the affirmative defense of unpreventable employee misconduct,
arguing that the violation of its stationary tie off policy by employees Sabo and Dietz justifies
vacation of the cited violation.
Even were Annstrong to establish the defense, however, the outcome of this matter
would be unaffected, because the citation is affirmed based solely on the absense of fall
protection for ironworkers in motion. Therefore, Respondent’s affirmative defense, will not
be considered.
Greater Hazard
Armstrong also argues that installing fall protection poses a hazard to the employees
who must work unprotected on the steel to install the safety cables or catch platforms (Tr.
217,224). Duskey also stated that catenary lines were hazardous because ironworkers forgot
they were tied off and were tripped up by the stanchions (Tr. 301).
In order to establish the affirmative defense of a greater hazard, the employer must
show that 1) the hazards of compliance are greater than the hazards of non-compliance; 2)
alternative means of protection are unavailable; and 3) an application for a variance would
be inappropriate. See Walker Towing Cop., 14 BNA OSHC 2072, 2078, 1991 CCH OSHD
829,239, p. 39,161 (No. 87-1359, 1991).
Armstrong admits it never applied for a variance. Duskey testified that Armstrong
felt that it was the job of the international ironworker’s union to do so (Tr. 305-06).
Armstrong failed to make out the affirmative defense of greater hazard. Because
Armstrong failed to establish the third prong of the defense, the other elements need not
be addressed here.

3 Here, none of Armstrong’s supervisory employees were familiar with the safety glider system (See
testimony of Duskey, Tr. 302, McIntosh, Tr. 227; Blake, Tr. 261).

                                                5

Pena@
A fall from a height over 25 feet would most probably result in serious injury or death
(Tr. 119). The cited violation, therefore, was properly characterized as serious.
Respondent stipulates that in the event a serious violation is found, the proposed penalty
of $2,500.00 is appropriate (Tr. 10940). A penalty of $2,500.00 will be assessed.
Alleged Violation of 51926.28(a)
Because a violation of 51926.105(a) was found, the alleged alternative violation of
$1926.28(a) need not be addressed.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination
of the contested issues have been found specially and appear in the decision above. See
Rule 52(a) of the Federal Rules of Civil Procedure.
Order

1. Serious citation 1, item 1, alleging violation of 51926.105(a) is AFFIRMED, and a
   penalty of $2,500.00 is ASSESSED.

Dated: October 21, 1994
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