Whitacre Engineering Co.

Plain-English summary

Whitacre Engineering Co. installed reinforcing steel for a steel-mill foundation project in Mansfield, Ohio. Employees crossed a 28-inch-wide aluminum runway that lacked a guardrail on one side, and Whitacre neither asked the general contractor to correct it nor used alternative protection. The judge affirmed that serious violation for $1,500 but vacated a trench-egress item because the trench's shallower side provided a compliant exit within 25 feet. A Whitacre employee had slipped while descending reinforcing steel and fell about 3.5 feet onto an uncapped vertical rod, sustaining an impalement injury and spending several days in the hospital. Because Whitacre knew about the exposed rebar weeks earlier and used caps or wooden covers elsewhere, the judge affirmed the serious impalement item for $2,625. Bent rebar at a ladder base also created a tripping hazard, which was affirmed as other-than-serious without a penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(d)(2), 1926.651(c)(2), 1926.701(b), and 1926.1053(b)(9).
• Outcome: Mixed. The runway and rebar items were affirmed for $4,125 total, the trench-egress item was vacated, and the ladder-base item was affirmed without a penalty.
• Key point: A subcontractor that knows its employees use another contractor's unsafe access route must seek correction or provide alternative protection; ownership of the condition alone does not excuse inaction.

Full text (OSHRC public release)

                               United States of America                                      .
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                         1120 20th Street, N. W., Ninth Floor
                            Washington, DC 20036-3419


                                                                           Phone: (202) 606-5400
                                                                            Fax: (202) 6064050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-3186
WHITACRE ENGINEERING CO.
Respondent.

                 NOTICE OF DOCKETING
          OF ADMINISTRATIVE LA\N JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on July P9, 1995. The decision of the Judge
will become a final order of the Commission on August 18, 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 by the Executive Secretary on or before
August 8, 1995 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C.P;.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shah also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8.
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
having questions about review r@ts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: July 19, 1995
DOCKET NO. 94-3186
NOTICE IS GIVEN TO THE FOLLOWING:

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

Charles A. Shriver
Whitacre Engineering Co.
3833 Progress Street, N.E.
P.O. Box 8444
Canton, OH 44711

James R. Brown
Director of Safety/Education
Construction Em loyers Association
981 Keynote CircPe, Suite 31
Construction Centre
Cleveland, OH 44131

Ken S. Welsch
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00106125065:05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E.. SUITE 240
ATLANTA, GEORGIA 30309-31 rg

PHONE
COM (404)347-4197 FAX
~S(404)347-4197 COM(40+)347-0113
FTS(404)347-0113

SECRETARY OF LABOR,
Complainant,

                   v.                                                  OSHRC Docket No. 94-3186s

WHITACRE ENGINEERING CO.,
Respondent.

APPEARANCES:

       Sandra B. Kramer, Esquire                                       Charles A Shriver
          Office of the Solicitor                                        Whitacre Engineering Co.
          U. S. Department of Labor                                      canton, Ohio
          Cleveland, Ohio                                                      For Respondent Pro Se
               For Complainant

                                                                       Mr. James R. Brown
                                                                         Construction Employers Association
                                                                         Cleveland, Ohio
                                                       .                       For Respondent




       This proceeding       arises under the Occupational             Safety and Health Act of 1970, 29

U.S.C., 8 651, et seq, hereinafter referred to as the “Act.”
Whitacre Engineering Company (Whitacre), a reinforcing steel contractor, at all times
relevant to this action was an employer engaged in a business affecting commerce within the

meaning of the Act.
In August 1994, Chris Matthewson, a compliance officer with the Occupational Safety
and Health Administration (OSHA), received an anonymous telephone call that an
employee had been impaled on a reinforcing’steel bar at a construction site in Mansfield,
Ohio. After calling the local hospital to confirm the accident, Matthewson telephoned his
supervisor and was assigned the investigation (Tr. 47-48).
The investigation was conducted from August 31 to September 1, 1994, at a
construction site at 913 Bowman Street, Mansfield, Ohio. The site was a steel mill owned
by Armco, Inc., who hired Eichleay Corporation as general contractor to construct a large
continuous caster used to form steel slabs (Tr. 10-11, 33). The project began January 19,
1994 (Tr. 33). Whitacre, a subcontractor, was hired to install the reinforcing steel for the
foundation of the caster (Tr. 11). Whitacre commenced work in April 1994 and had
fourteen to fifteen employees at the site under the supervision of foreman Ken Ziegler (Tr.
33, 41, 84).
It is uncontroverted that on August 29, 1994, an .employee of Whitacre, who had .
finished tying off horizontal reinforcing steel, was descending the wall to the foundation floor
when he apparently slipped and fell (Tr. 11-12). He fell approximately 3*%feet and was
impaled in the side by a vertical reinforcing steel rod. The rod stood 20 to 22 % inches high
and was not capped or otherwise guarded (Exh. C-3; Tr. 12,55,&I). The employee was in
the hospital several days (Respondent’s Statement of Position, pg. 1 [unnumbered]).
As a result of Matthewson’s investigation, Whitacre was cited for serious violations
of 29 C.F.R. 00 1926.500(d)(2), 1926.651(c)(2), 1926.701(b) and 1926.1053(b)(9). A penalty
of $2,625 was proposed for each violation. Whitacre timely contested the violations and
requested simplified proceedings. Without objection, the case proceeded in accordance with
the simplified proceedings rules at 29 C.F.R. 0 2200.200, et seq.
On March 28, 1995, after a conference pursuant to Rule 207 failed to resolve the
matter or significantly narrow the issues other than coverage, a hearing was held in
Mansfield, Ohio. The parties have submitted their posthearing brief/statement of position,
and the case is ready for disposition.
ALLEGED VIOLATIONS

                     Item 1 - Alleged Violation of d 1926.500(d)(2\

      Section 1926.500(d)(2) p rovides, in part, that “runways shall be guarded by standard

railing, or the equivalent . . on all open sides, 4 feet or more above floor or ground level.”
l

A “runway” is defined at 0 1926.502(f) as “a passageway for persons, elevated above the
surrounding floor or ground level, such as a footwalk along shafting or a wallnvay between
buildings.” The OSHA citation alleges:
IT]here was an aluminum pick used for employees to walk on to get to the
ladder to climb down to the foundation floor. There was no railing on one
side in that employees were exposed to an 8 ft. 8 in. fall.

                                           Facts

      Matthewson testified that during his investigation, he observed employees of Whitacre

using an aluminum pick (scaffold) to walk across to a ladder used to access the foundation
floor (Tr. 49,67). The pick had a guardrail on one side but not on the other side (Exh. C-l,
C-2; Tr. 49). The pick was 28 inches wide and 30 feet long (Tr. 66). The employee shown
in Matthewson’s photograph standing approximately midway on the pick was 8 feet 8 inches
above the foundation floor (Exh. C-l; Tr. 49,65). While crossing the pick, employees were
not tied off or otherwise prevented from falling from the open side (Tr. 67). Matthewson
did not see them holding onto the guardrail on the other side (Tr. 68). After being notified
by Matthewson, a guardrail was installed on the open side the next day by Eichleay (Tr. 32,
64-65).
Thomas Burnett, the former field safety engineer for Eichleay Corporation, testified
that he observed all employees including Whitacre’s using the aluminum pick to access the
foundation area (Tr. 14,35). He estimated the distance to be 15 feet from the end of the
pick where the ladder was located to the foundation floor (Tr. 35). The pick was owned and
placed for access to the foundation by Eichleay two weeks before the OSHA inspection (Tr.
25, 35-36). Burnett testified that no one from Whitacre complained about the lack of a
guardrail on one side (Tr. 14-15, 36). However, Burnett testified that he was trying to get

                                             3

Eichleay’s ironworkers to install a guardrail, but the job was running behind schedule (Tr.
37). He recognized the danger in an employee’s fdlling which could cause serious injury or
death (Tr. 15).
Keiih Lepage, president of Whitacre, testified that he did not consider the pick a
hazard to his ironworkers (Tr. 92). Whitacre argues that it was common practice for the
ironworkers to “traverse and perform work routinely on beams less than 12 inches wide”
(Respondent’s Statement of Position, pg. 3 [unnumbered]). He agreed that Ziegler, his job
foreman, was aware there was no guardrail on the pick (T’r. 92). Lepage testified that it was
difficult to go to the general contractor to complain about all hazardous conditions, and “[IIf
we had to stop and let somebody know every time there’s danger situation, you would never
get anything done” (Tr. 92-93).

                                        Discussion

    In order to establish a violation of a standard,,the     Secretary must prove that (1) the

standard is applicable; (2) the terms of the standard were violated; (3) employees were
exposed or had access to the violative condition; and (4) the employer knew or should have
known of the violative condition. See e.g., Gray Concrete products, Inc., 15 BNA OSHC 1051,
1052, 1991-93 CCH OSHD ll29,349, p. 39,449 (No. 86-1087, 1991).
Based on the record, a violation of fj 1926.500(d)(2) is established. The aluminum
pick constituted a “runway” within the meaning of 0 1926.502(f) in that employees were
using it as a passageway which was elevated above the ground level. There was no guardrail
or equivalent on one side, and the pick was more than 4 feet above the ground level.
Whitacre’s employees were observed walking on the pick, and Lepage admitted that
Whitacre was aware of the condition. Thus, it is found that the terms of 0 1926.500(d)(2)
were applicable and were not complied with; Whitacre had employees exposed to a fall
hazard; and Whitacre was aware of the violative condition.
Whitacre’s belief that its employees as ironworkers did not need the guardrail is
rejected. Section 1926.500(d)(2) d oes not grant that option; it states that runways shall be
guarded “on all open sides.” The use of the word “shall” makes the use of the guardrail
mandatory. There was no evidence that a variance was sought.

                                             4
       Whitacre’s   argument     that the violative     condition   was the general     contractor’s

responsrbility is also rejected. Despite the evidence showing that the pick belonged to, and
was placed by Eichleay who was responsible for installing the guardrail, Whitacre is not
relieved fkom the responsibility of protecting the safety of its employees. To establish a
multi-employer defense, Whitacre must show by a preponderance of the evidence that (1)
it did not create the hazardous condition; (2) it did not control the violative condition such
that it could have realistically abated the condition in the manner required by the standard;
and (3) it took reasonable alternative steps to protect its employees or it did not have notice
that the violative condition was hazardous. See Capfom, Inc., 16 BNA OSHC 2040,2041,
1992 CCH OSHD 129,918 (No. 91-1613, 1992). Whitacre has failed to show that it is
entitled to this defense. Whitacre failed to take any alternative steps to protect its
employees. Whitacre’s employees were observed on the pick without being tied off or
otherwise protected from the fall hazard. Whitacre failed to complain to Eichleay or request
Eichleay to install the guardrail. Although Lepage conceded that Whitacre has some
responsr%ility and was aware of the condition, the record fails to show how, if at all,
Whitacre met its responsrbility to protect the safety of its employees. Accordingly,
Whitacre’s violation of g 1926.500(d)(2) is affirmed.
In classifying the violation, a “serious” violation is “deemed to exist . . . if there is a
substantial probability that death or serious physical harm could result from. a condition
which exists . . . in such place of employment unless the employer did not, and could not
with exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C.
8 666(k). Based on the record, there can be no dispute that if an employee fell 8 to 15 ,feet
to the cement foundation with debris, including protruding steel bars, death or serious
physical injury could result. Also, Whitacre was aware of the lack of a guardrail, as
evidenced by its admission, and the fact that this was the only means of access to the
foundation. Thus, the violation of 0 1926.500(d)(2) is found to be serious.
A penalty of $1,500 is deemed appropriate. There was an adequate guardrail on one
side of the aluminum pick making it less likely of an accident occurring. Also, the record
reflects that the guardrail was installed the next da5 Whitacre has no history of prior OSHA
violations for the past three years; and, although Whitacre employed over 175 employees,
there were fourteen to fifteen employees at this site.

                       Item 2 - Alleged Violation of d 1926.651(c)(2)

     Section 1926.651(c)(2) provides:
     [A] stairway, ladder, ramp or other safe means of egress shall be located in
     trench excavations that are 4 feet . . . or more in depth so as to require no
     more than 25 feet . . . of lateral travel for employees.

     The OSHA citation describes the alleged violation as follows:
          [Tlhere was a trench that employees crossed to get to their work area.
     k&s trench did not have any safe means of egress in that there were no steps,
     ladders, or ramps.


                                             Facts

     Matthewson      testified that from the contractors’ trailers, including Whitacre’s, there

was a trench that employees
. crossed to get to the site of the foundation (Tr. 53). The
trench measured 17 feet wide at the base and 22 feet wide across the top (Tr. 52). It was
approximately 25 feet long (Tr. 68). The trench’s wall nearest the trailers was 32 inches
deep, and the other wall was 65 inches deep (Tr. 52,70). Matthewson described the walls
of the trench as steep -- “almost vertical” (Tr. 53). In each wall of the trench, there were
1 steps apparently cut with a shovel; one step cut into the 32.inch wall and two steps cut into
the 65-inch wall (Tr. 53,70). He descriied the steps as inadequate, shallow, crumbling and
sloping (T’r. 70). Although he did not see Whitacre’s employees in the trench, Ziegler told
him that he regularly crossed the trench to get to the foundation site (Tr. 71). On the
second day of his inspection, Eichleay installed wooden steps with railings (Tr. 70).
Matthewson acknowledged that at the time of his inspection, he did not know that it was a
violation of the standard although he was having difficulty climbing the steps (Tr. 52).
Burnett testified that the trench was dug by the electric company to run conduit and
that Eichleay cut the steps into the walls so that employees could more easily cross the
trench (Tr. 17, 38-39). Like other contractors’ employees, he saw Whitacre’s employees

                                                6

crossing through the trench (Tr. 16). He testified that employees could use the steps, but
he did not consider it as safe as a structurally built ramp or stairs (Tr. 28).

                                      Discussion

   Based on the record, the Secretary has failed to established that there was a violation

of 5 1926.651(c)(2). Whitacre’s employees were not working in the trench excavation but
were crossing through it to get to their jobsite. There was only one side of the trench
excavation deeper than 4 feet; the other side was less than 3 feet deep. The regulation
requires a safe means of egress so as not to require an employee to laterally travel more
than 25 feet. With one wall of the trench excavation measuring less than 3 feet, there was
a safe means of egress with less than 25 feet of lateral travel. Thus, the trench excavation
complies with the requirements of 3 1926.651(c)(2). There was a safe means of egress as
required by the standard.
Therefore, the alleged violation of 8 1926.651(c)(2) is vacated.

                     Item 3 - Alleged Violation of iF 1926.701(b)

   Section 1926.701(b) provides that “[a]ll protruding reinforcing steel, onto and into

which employees could fall, shall be guarded to eliminate the hazard of impalement.”
The OSHA 1 citation alleges:
On or about August 29, 1994, at the construction site in the steel mill in
Mansfield, Ohio, there was rebar at the base of the caster foundation sticking
vertically out of the concrete 20 to 22% inches. The rebar did not have any
protective device to protect employees from impalement.

                                         Facts

   There appears to be no dispute of the facts. Below the area where employees were

tying off horizontal reinforcing steel on the wall, there were reinforcing steel bars (rebar)
protruding from the concrete foundation. The exposed vertical bars measured 20 to 22%
inches high with no covers or other guarding. The protruding bars were approximately 8 to
10 inches from the wall (Exhs. C-3, C-4; Tr. 39,55).

                                           7
      On August 29,1994, an employee of Whitacre was climbing on the wall to tie off the

horizontal reinforcing steel. While tying off the horizontal pieces, he used his safety belt (Tr.
72). While descending the wall, the employee apparently slipped and fell 3 % feet onto the
protruding rebar (Tr. 1272). The ends of the protruding rebar were not caped or otherwise
covered (Tr. M-19, 72). The employee was impaled in the side and was taken to the
hospital where he remained for several days (Tr. 84).
Burnett, former safety supervisor for Eichleay, testified that three to four weeks prior
to the accident, he spoke with Whitacre’s foreman about the unprotected vertical rebar
throughout the foundation (Tr. 20,40). In other areas of the foundation, 2 x 4foot wooden
covers were tied over the top of the rebar or mushroom caps were used to cover the tops
of the rebar (Exh. C-5; Tr. 20). However, in the area where the accident occured, nothing
was done to cover the rebar.

                                          Discussion

      The record establishes that at the time of the accident, 6 1926.701(b) was applicable;

the protruding rebar was not guarded to protect against the hazard of impalement;
Whitacre’s employees were exposed to the hazard; and Whitacre was aware of the
unguarded rebar. The standard is clear; it requires reinforcing steel bars to be covered to
prevent impalement. Whitacre failed to provide this protection. The record establishes that
Whitacre used plastic mushroom caps or job-made 2 x 4foot wooden covers in other areas
of the jobsite (Exh. C-S; Tr. 20). Although Whitacre questions the caps’ effectiveness, there
is no evidence as to why such caps were not installed in this area. Also, it is noted that the
mushroom caps were manufactured for the purpose of’ protecting employees. Further, if
Whitacre did not choose to use the caps, it could have used the job-made 2 x &foot wooden
covers. However, the evidence establishes that Whitacre failed to provide any protection
to its employee who was working immediately above the exposed rebar. Accordingly, the
violation of 5 1926.701(b) is affirmed.

                                                8
    The violation of 6 1926.701(b) is considered “serious” as evidenced by the employee’s

injury and the potential for serious injury or death. Also, Whitacre was informed of the
unguarded reinforcing steel three or four weeks prior to the accident.
A penalty of $2,625 is deemed appropriate and reasonable. In determining a penalty,
consideration was given to the fact that installing reinforcing steel is Whitacre’s sole business
and that an employee was injured due to its failure to guard protruding rebar in any manner.
Credit was given in that Whitacre employed 175 employees; it has no history of prior OSHA
violations; Whitacre was cooperative during the inspection; and the violation was
immediately abated.

                      Item 4 - Alleged Violation of S 1926.1053(b)(9)

    Section 1926.1053(b)(9) requires that “the area around the top and bottom of ladders

shall be kept clear.” The OSHA citation alleges:
mhere was a steel ladder leading down to the foundation floor. At the
base of the ladder there was bent over rebar that could cause a tripping
hazard in that stepping off the ladder employees could trip over the bent
rebar.

                                            Facts

    Matthewson       testified that during the inspection, he observed Whitacre’s employees

working in the foundation near an access ladder. Bent rebar was found at the base of the
ladder, which he considered to be a tripping hazard (Tr. 57-58). Matthewson agreed that
the ladder could not be moved to another area, and he recommended that a wooden
platform be placed over the rebar around the base of the ladder (Tr. 58-59).
Burnett, former safety supervisor for Eichleay, testified that the access ladder was
placed at the location approximately one week prior to the OSHA inspection (Exh. C-5; Tr.
21). Like other employees, Whitacre’s employees were observed using the ladder (Tr. 22).
There were only two ladders accessing the foundation (Tr. 22). When initially observed by
Burnett, the rebar at the base of the ladder was vertical. Burnett asked Whitacre to bend
the rebar so that employees were not exposed to an impalement hazard. Whitacre complied
with Burnett’s request (Tr. 22).
Lepage testified that his company could bend the rebar but that Eichleay had to build
the wooden platiorm. Also, he considered the elimination of the impalement hazard more
important than the tripping hazard (Tr. 93).

                                        Discussion

      Section 1926.1053(b)(9) re quires that the area around the top and base aof the ladder

be “kept clear” of potential hazards to employees accessing the ladder. Because of their
eventual use in the foundation, the protruding rebar could not be removed or cut off. Also,
both parties concede that the ladder could not be moved to another location. Whitacre did
eliminate the impalement hazard by bending the rebar (Exh. C-5). However, there still
remained a tripping hazard. The possbility of tripping at the base of the ladder which
employees use to access the foundation is considered one of the potential hazards to which
the standard is directed. Although aware of the tripping hazard, there is no evidence that
Whitacre attempted to elimate the hazard. Accordingly, a violation of 0 1926.1053(b)(9) is
affirmed.
Based on the record, the violation of 0 1926.1053(b)(9) is classified as “other than
serious” with no penalty. Whitacre took appropriate action to eliminate the impalement
hazard. In bending the rebar, the photograph shows that to some extent there was a path
to and from the ladder, thus reducing the likelihood of tripping. Further, the record fails
to establish that tripping in this area could cause death or serious injury.

                               FINDINGS OF FACT AND
                                CONCLUSIONS OF L4W


      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.

                                               10
    It is hereby ORDERED:
    1. Serious violation of item 1, 0 1926.500(d)(2), is AFFIRMED     with a penalty of

$1,500 assessed.
2. Serious violation of item 2, § 1926.651(c)(2), is VACATED.
3. Serious violation of item 3,s 1926.701(b), is AFFIRMED with a penalty of $2,625
assessed.
4. “Other than serious” violation of item 4, 6 1926.1053(b)(9), is AFFIRMED with
no penalty assessed.

                                              Judge

Date: July 11, 1995

                                         11