Noble Steel, Inc.

Plain-English summary

Noble Steel employees worked inside a roughly 10-foot-deep chlorine filter basin at an Oklahoma water-treatment project. Vertical reinforcing steel protruded from the floor without effective impalement protection, and employees entered and left by climbing rebar held by wire ties instead of using a ladder. The judge admitted OSHA's videotape because the general contractor and a Noble representative had permitted the inspection, and the open construction basin carried no reasonable expectation of privacy. Noble could not rely on its contract requiring the general contractor to supply rebar caps; the judge found that it could have insisted on caps or purchased them, while the loose plywood strip provided no realistic protection. Noble also failed to prove that a ladder was infeasible or created a greater hazard, offering only unsupported assertions and no variance evidence. Both serious items were affirmed with penalties of $1,125 each.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.701(b) and 1926.1051(a).
• Outcome: Affirmed. Two serious items were affirmed with combined penalties of $2,250.
• Key point: A subcontractor must take realistic steps to protect its employees from a known hazard even when a contract assigns the corrective work to the general contractor.

Full text (OSHRC public release)

                            UNITED STATES OF AMERICA
 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            One Lafayette Centfe
                     1120  20th Street, N.W. - 9th Floor
                         Washington, DC 2003&3419

SECRETARY OF LABOR
c0Inp1aina.n~
v. OSHRC DOCKET
NO. 93-3066
NOBLE STEEL, INC.
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 16, 1994. The decision of the Judge
will become a final order of the Commission on January 17, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
January 5, 1995 in order to ermit suff! cient time for its review. See
Comnusslon Rule 91, 29 C.gR. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Renew 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. DOK,
                   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. hY party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

                                    FOR THE COMMISSION

                                     fl~hhiL&+,                     p

Date: December 16, 1994 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-3066

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, DC. 20210

James E. White, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘&ite 501
Griffin & Youn Streets
Dallas, TX 752 f 2

Kelly F. Mona an, Esq.
Wilkinson & I@onaghan
7625 East 51st Street
Fourth Floor
Tulsa, OK 74145

Paul L. Brady
Administrative Law Jud e
Occupational Safety an 8 Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00108738782:06
 UNITED STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH. REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119

                                                                                               FAX:

PHONE.
cow (404) 347-0113
CnhA4749Q7
FTS (404) 347-0113
FTS (404) 3474197 l
.

SECRETARY OF LABOR,
Complainant,

                      v.                                          OSHRC Docket No. 93-3066

NOBLE STEEL, INC.,
Respondent.

APPEARANCES:

                                                                                                               .
           Robin Homing, Esquire                                          Kel.@F. Monaghan, Esquire
             U. S. Department of Labor                                      Wilkinson & Mon&ghan
             Office of the Solicitor                                        Tulsa, Oklahoma
             Dallas, Texas                                                       For Respondent
                  For Complainant

Before: Administrative Law Judge Paul L Brady

                                      DECISION AND ORDER


           On September 22, 1993, Occupational Safety and Health Administration (OSHA)

Compliance Officer Gerald Young inspected the site of a water treatme.nt facility under
construction in Clinton, Oklahoma. Young had been at the site on the previous day when
he spoke with a representative of Williams Brothers Concrete Construction Co. (Williams),
the general contractor on the project. On September 22 Young inspected the worksite of
Noble Steel, Inc. (Noble), a subcontractor. on the project. Noble employees were working *
inside of what was to be a chlorine filter basin. As a result of Young’s inspection, the
Secretary issued a citation to Noble on October 26, 1993. .
 The citation alleges that Noble seriously violated 8 1926.701(b), for failure to guard
protruding reinforcing steel; and 5 1926.1051(a), for failure to provide a stairway or ladder
at a point of elevation where there was a break in elevation of 19 inches or more. Noble
raises four affirmative defenses: (1) the violations were caused by the acts of persons not
under the employment, direction or control of Noble, (2) impossrbility of performance, (3)
infeasibility, and (4) greater hazard. Noble also argues that a videotape (l&h. C-l) of its
worksite taken by Young should not have been admitted at the hearing because it was taken
without Noble’s permission.

                            Admisslbilitv of the Videotam

   Noble contends that Young videotaped its worksite before he received permission

from Noble to do so. Noble quotes extensively in its brief from portions of the OSHA Field a . . a J
Operations Manual CFOM’that pertain to opening conferences. Noble argues that Young

failed to follow the FOM in conducting his opening conference with Noble. This argument
has been addressed several times by the Review Commission.
[Tlhe Commission has consistently held that the FOM is an internal manual
that provides guidance to OSHA professionals, but does not have the force
and effect of law, nor does it confer important procedural or substantive rights
or duties on individuals. H. B. Zachry Co., 3 BNA OSHC 2202, 1980 CCH
OSHD B 24,196 (No. 761393,1980), affd, 638 F.2d 812 [9 OSHC 1417l(Sth
Cir. 1981). We therefore conclude that there is no reason to examine the
Secretary’s actions in this case to determine whether they conformed to the
procedures outlined in the FOM.

C’ategdlar, Inc., 15 BNA OSHC 2153,2173, fin 24,1993 CCH OSHD li 29,962 (NO. 87.922,

1993). As the Commission makes clear, it is not necessary to examine Young’s actions to
determine if they conformed with the FOh4. Conformance with the FOA4has no bearing on
the admissrbility of the videotape.
On September 21, 1993, Young received permission from Williams to inspect the
water treatment facility (Tr. 67,118). Young returned the next day, arriving at Noble’s work
area at approximately 9:00 a.m. Young met again with Williams and invited the general
contractor to accompany him on his inspection. Williams declined (Tr. 36-37).
Young proceeded to Noble’s worksite. According to Young, he met with Randy
Palumbo, who had driven up in a pickup truck accompanied by two other employees.
Young determined that Palumbo was the person in charge at that time. Young identified
himself and held an opening conference with Palumbo. Young asked Palumbo’s permission
to videotape the site. Palumbo gave Young “tentative permission” (Tr. 40), to videotape
the site, then left to make a telephone call, presumably to check with his employer (Tr. 10,
38-40). Young began videotaping the site. A few minutes later, Finis Riggs, the general
foreman for Noble at the site, arrived. Young held another opening conference with him.
Young had completed his videotaping by the time Riggs arrived (Tr. 44).
Palumbo remembered the events of that morning differently. He testified that he and
the other two employees were already working in the chlorine basin when Young arrived.
Palumbo testified that he first became aware of Young’s presence when he “looked up out
of the hole and saw the inspector up there” (Tr. 83). Young introduced himself to Palumbo,
who then exited the basin. Young asked Palumbo for permission to inspect the site (T’r.84).
Riggs arrived at the worksite shortly after Falumbo began his conversation with Young.
Palumbo testified that he did not leave to make a telephone call. Palumbo also stated that
Young had already completed his videotaping before he spoke with him: “I thought to the
best of my recollection that he had already videotaped it, and he let me know that he had
videotaped it” (Tr. 85).
Upon cross-examination, ho&ever, Palumbo wavered in his testimony. Palumbo was
shown the videotape that Young had taken. Palumbo conceded that the videotape showed
only one employee, Kenneth King, in the chlorine basin. Palumbo had testified that Young
completed his videotaping while he and the other two employees were working in the basin.
The videotape seems to contradict this. When confronted with this contradiction, Palumbo
stated, “To the best of my ability, it’s hard to remember at this point if it was taken-you
know, if he asked me permission to take it while I was down in there. I don’t remember
that” (Tr. 97).
 Young’s testimony is credited over that of Palumbo’s. Palumbo was uncertain in his
statements, and his recollection of the events of September 22 is directly challenged by the
videotape. Young appeared to be a more reliable witness.
Furthermore, it is undisputed that Williams, the general contractor, gave Young
permission to inspect the facility (Tr. 118). In A. A. Beiro Conmuctiun Co., Inc., 746 F.2d
894 (D.C. Cir. 1984), the court addressed inspections authorized by third party consent. The
court stated: “Areas of privacy exempted from third party consent have generally involved
enclosed or secured places commonly used for preserving privacy.” Ibid. at 903. While an
employer may have some privacy rights with respect to enclosed spaces, such as a trailer or
a tool shed, “open construction areas [are] devoid of any reasonable expectations of
privacy.” Ibid. at 902.
Noble argues that the chlorine basin was not a common area, but one where Noble
had a reasonable expectation of privacy. This argument is rejected. As the videotape makes
clear, the basin was an open area. The fact that it was below ground level does not make
it an enclosed space used for preserving privacy.
It is concluded that Young received permission, both from the general contractor and
Tom Palumbo, to inspect and videotape Noble’s worksite. The videotape is admissl’ble.

                   Item 1 : Alleged Serious Violation of § 1926.701(b)

   The Secretary charges Noble with a serious violation of 8 1926.701(b), which provides:

“AUprotruding reinforcing steel, onto and into which employees could fall, shall be guarded
to eliminate the hazard of impalement.”
The basin contained exposed vertical pieces of Vii&inch
rebar protruding from the basin
floor (Exh. C-l; Tr. 17). The basin was approximately 10 feet deep (Tr. 21). Employees
had to enter and exit the basin by climbing up and down rebar on one of the walls of the
basin (Tr. 26).
To establish a violation of a standard, the Secretary must show by a preponderance
of the evidence that (1) the cited standard applies, (2) its terms were not met, (3) employees
had access to the violative condition, and (4) the employer knew or could have known of it
with the exercise of reasonable diligence. Seibel Mud Mfg. & WeldingCorp., 15 BNA OSHC
1218, 1991 CCH OSHD 1 29,442, p. 39,678 (No. 88-821, 1991).
The Secretary has established a violation of 8 1926.701(b). There is no dispute that
the cited standard applies and that the exposed rebar was not guarded. Employees had
access to the unguarded rebar because they were required to climb into and out of the basin,
elevating themselves above the rebar. The violative condition was in plain sight, and so was
known to Noble. The hazard created was death or serious injury by impalement (II. 28).

                     NOBLE’S AFFIRMATIVE           DEFENSES

                         Control of the Violative Condition

   Noble argues that any violation of 5 1926.701(b) was caused by acts of persons not

under the employment, direction or control of Noble. Under theAnni
rule, the Commission requires an employer who did not create or control a hazardous
condition on a multi-employer worksite to show that its employees “were protected by means
of realistic measures taken as an alternative to literal compliance with the cited standard.”
Aming-Johnson Co., 4 BNA OSHC 1193, 1975-76CCH OSHD I 20,690 (No. 3694,1976).
The general contractor provided Noble with a strip of plywood, approximately 8 feet
long and 8 to 10 inches wide, to use as a protective cover for exposed rebar. The strip of
plywood was too small to cover most of the exposed rebar. Furthermore, it was constantly
being knocked off by employees as they passed it (Tr. 89).
Young testified that the strip of plywood that Noble was using would provide no
protection to an employee who fell onto the rebar: “Loose plywood on top of this thing
does nothing except in the event someone were to fall onto it, it would just have to slide out
of the way” (Tr. 24-25). Young recommended anchoring the plywood to the rebar with
boards. He also suggested placing plastic mushroom caps, 3 inches in diameter, on top of
the rebar to eliminate the risk of impalement (Tr. 24-25).
Palumbo testified that he requested rebar caps Tom Williams on more than one
occasion. Williams never provided them to Noble (Tr. 8940). Noble points out that the
contract between it and Williams required Williams to provide the mushroom caps

                                          5

(Exh. R-5). Noble also asserts that placing mushroom caps on rebar is “outside the work
jurisdiction of an ironworker” (Tr. 107).
The Review Commission addressed a subcontractor’s duty when faced with a hazard
it did not create or control in Grossman Steel & Ahm. C’p., 4 BNA OSHC 118.5, 1189,
1975-76 CCH OSHD a‘20,691 (No. 12775, 1976):
[A] subcontractor cannot be permitted to close its eyes to hazards to which its
employees are exposed, or to ignore hazards of which it has actual knowledge
Simply because a subcontractor himself cannot abate a violative
&&ion does not mean it is powerless to protect its employees. It can, for
example, attempt to have the general contractor correct the condition, attempt
to persuade the employer respons~%lefor the condition to correct it, instruct
its employees to avoid the area where the hazard exists if this alternative is
practical, or in some instances provide an alternative means of protection
against the hazard.

   The fact that Noble was not supplied the mushroom caps in accordance with a               .

contract does not excuse it from complying with 5 1926.701(b). An employer is obligated
to comply with the OSHA standards regardless of the terms of any contract it may enter.
Noble was required to take realistic measures to protect its employees. Palumbo testified
that he “mentioned” mushroom caps to Williams at least twice. Given the serious nature
of the hazard, Noble was required to do more to protect its employees. It could have
insisted on Williams providing the mushroom caps. If Williamsrefused,Noble could have
purchased the mushroom caps itself. Noble was aware of the hazard and knew that the
mushroom caps would abate it. Noble’sAnn&Johzmrz/~~~,mz defense must f&&

                          ImDossibilitv Performance Defense

   Noble asserts that it was impossible for it to comply with 0 1926.701(b). The

Commission has held that infeasibility rather than impossibility is the proper focus of this
defense. See Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 195659, 1986-87 CCH
OSHD Q 27,650 (No. 79-2553, 1986), rev’d in part, 843 F.2d 1135 (8th Cir. 1988). The
Commission in seibel Mbd. Mfg. & WeldingCop., 15 BNA OSHC 1218,199l CCH OSHD
II 29,442 (No. 88-821, Ml), formulated the infeas~%ilitydefense as follows:

                                          6

(A]ny employer seeking to be excused from implementing a cited standard’s
abatement measure on the basis of its infeasibility has the burden of
establishing either that an alternative protective measure was used or that
there was no feasible alternative measure.

    Noble’s infeasibility defense rests solely on the use of the strip of plywood to guard

the rebar. Noble did not use an alternative protective measure, and it has failed to prove
that there was no feasl%le alternative measure. Noble itself concedes that mushroom caps
were a fea&le alternative measure that it did not use. Noble’s infeasrbility defense is
rejected.

               Item 2: Alleged Serious Violation of d 1926.10Sl(a~

    Section 1926.1051(a) provides:
   A stairway or ladder shall be provided at all personnel points of access where
   there is a break in elevation of 19 inches (48 cm) or more, and no ramp,
   runway, sloped embankment, or personnel hoist is provided.

   Employees entered and exited the lo-foot deep basin by climbing up and down the

rebar held in place by wire ties, which are pieces of wire with loops on them (Tr. 26-27).
Young explained that the rebar is not attached to the wire ties. The rebar can roll around
on the wire ties, creating unsteady footing for the employees and exposing them to a fall
onto the rebar below (Tr. 28). Young testified that a ladder could have been used, and
there was a ladder available on the site (Tr. 29). The employees’ use of the rebar to enter
and exit the basin was done in plain view. Young observed Palumbo himself climb onto the
rebar (Tr. 32). The Secretary has established a serious violation of 5 1926.1051(a).

              ImDossl’bility and Infeasl”bilitv of Performance Defense

   Noble asserted that it was both impossible and infeasl%le for it to comply with

6 1926.1051(aj. As noted in the previous section, the Commission recognizes the infeasibility
defense as being appropriate. Noble has the burden of proving either that it used an
alternative protective ‘measure or that no alternative protective measure was available.

                                                                                 ,
                                          7

Noble claims that if it had used a ladder, it could not have placed it at an angle that
would have been in compliance with OSHA’s ladder standards. Finis Riggs testified, “03-M
states that you place a ladder in position. It has to have so many feet of-it has to be at a
certain angle. If it’s not at a certain angle, it’s not approved. It’s not safe to use. And it’s
my opinidn that the ladder could not have been placed there in a safe manner” (‘I?. 111).
Yet, Noble offers no evidence beyond Riggs’ bare assertion that a ladder could not have
been positioned at the proper angle. No dimensions or diagrams were entered into evidence
to support Noble’s assertion that it could not use a ladder. It is not enough for an employer
simply to claim that compliance with a cited standard would have Dut it into noncomDliance
A A

with another. standard. The employer must demonstrate how this condition actually -
occurred. Noble’s i.nfeaslMity defense must fail.

                               Greater Hazard Defense

   Noble claims that compliance with 6 1926.1051(a) would have resulted in a greater

hazard to its employees.
To establish a defense of greater hazard, an employer must prove that (1) the
hazards created by complying with the standard are greater than those of
noncompliance, (2) other methods of protecting employees from the hazards
are not available, and (3) a variance is not available or application for a
variance is inappropriate l lAn employer’s proof of the unavailability or
l l

  inappropriateness of a variance is particularly important.

Seibel, 15 BNA OSHC at 1225,
Noble did not seek a variance. Noble argues that application for a variance would
have been inappropriate because “use of the rebar wall as a ladder was so common in the
industry” (Noble’s Brief, pg. 24). Noble does not explain why this should make application
for a variance inappropriate. Noble’s argument is rejected. Having failed to meet the third
and crucial element of the greater hazard defense, Noble’s affirmative defense must fail.
 PENALTY DETERMINATION

   Section 17(j) of the Act, 29 U.S.C. 0 666(j), requires the Commission when
   assessing penalties, to give “due consideration” to four criteria: The size of
   the employer’s business, gravity of the violation, good faith, and prior history
   of violations. J. A. Jones Const~ Co., 15 BNA OSHC 2201, 2213-14, 1993
   CCH OSHD ll 29,964, p. 41,032 (No. 87-2059, 1993). These factors are not
   necessarily accorded equal weight. Generally speaking, the gravity of a
   violation is the primary element in the penalty assessment. ZW& Indrrs., 15
   BNA O§HC 1481,1483, 1992 CCH OSHD 129,582, pe 40,033 (NO. 8&2691,
    1992). The gravity of a particular violation depends upon such matters as the
   number of employees exposed, the duration of the exposure, the precautions
   taken against injury, and the Iikelihooci that any injury would result, J. A
   JOMS, 15 BNA OSHC at 2214, 1993 CCH OSHD at pe 41,032.

Hem Iron Works,Inc., 16 BNA OSHC 129791994 CCH OSHD f 309155 (NO.88-1962,1994)e
Young listed Noble’s number of employees as fifty (E&e R-2). NO evidence was
adduced as to Noble’s prior history with OSHA or its good faith, The gray@ of both
violations is severe, A fall from the rebar ladder onto the unguarded rebar would most
likely result in death, It is determined that the appropriate penalty for each violation is
$1,125.oOe

                          FINDINGS OF FACI’ AND
                          CONCLUSIONS OF h%W

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                     ORDER

   Based upon the foregoing decision, it is hereby ORDERED:
   le Item 1, for the serious violation of 5 1926.701(b), is aflirmed and a penalty of

$1,12X00 is assessed.
 2. Item 2, for the serious violation of 5 1926.105 l(a), is aflirmed and a penalty of
$1,125.00 is assessed.

                                                     /s/ Paul L, Bradv
                                               PAUL Le BRADY
                 .                             Judge

Date: December 7, 1994

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