OSHRC ALJ decision
Docket 95-1435
Decided February 20, 1996
Mixed result
Judge Nancy J. Spies
Midwest Piping & Controls, Inc.
Fall-protection item affirmed serious $400, load-limit posting item vacated
Apply this to your situation
This order from 1996 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
Midwest Piping & Controls is a small family-owned pipe-fitting company that
fabricates and installs piping mainly for a nearby Mead Paper Corporation mill.
Its shop sits inside Mead's fenced perimeter, on land Midwest owns under a long-
term lease. During a complaint inspection aimed at Mead and its contractors, an
OSHA officer entered Midwest's shop with Mead's representatives and cited two
items Midwest contested: no fall protection on a working surface above the office
ceiling, and no posted maximum safe load limit for that surface as a storage area.
Midwest represented itself in an "E-Z" simplified trial before Judge Nancy J.
Spies and argued the officer had no right to cite conditions outside the complaint.
The judge upheld the inspection, finding the officer was lawfully on the property
with consent and could cite hazards in plain view. On the merits, she affirmed the
fall-protection item under § 1926.501(b)(1): employees regularly climbed onto the
6-foot-square surface above the office, about eight feet up, to store and retrieve
long stainless steel tubing, and two open sides were unguarded, exposing them to a
fall that could cause broken bones or death. Midwest's unpreventable-employee-
misconduct defense failed because its own foreman worked from the surface without
fall protection and no one was disciplined, showing the rule was not enforced.
Given the very small size, good faith, and clean history, the judge assessed a
$400 penalty. She vacated the second item under § 1926.250(a)(2), finding the
surface was not actually a storage area and the citation was anticipatory, issued
only in case Midwest later used it for storage.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.250(a)(2)
- Outcome: Fall-protection item (§ 1926.501(b)(1)) affirmed serious, $400 penalty; load-limit posting item (§ 1926.250(a)(2)) vacated
- Key point: An OSHA officer lawfully on site with consent may cite plain-view hazards beyond the original complaint, and an employer cannot win an employee-misconduct defense when its own foreman breaks the safety rule without any discipline.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
Phone: (202) 606-5 100
SECRETARY OF LABOR Fax: (202) 606-5050
’ Complainant,
v. OSHRC DOCKET
NO. 954435
MIDWEST PIPING & CONTROLS, 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 January 19, 1996. The decision of the Judge
will become a final order of the Commission on February 20, 1996 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 etition should be received b the Executive Secretary on or before
February 1 1996 in order to ermit sx icient time for its review. See
Commissiob Rule 91, 29 C.F. k . 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 shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: January 19, 1996
DOCKET NO. 95-1435
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
Steve Houseman, P.E.
Pro’ect Manager
Mi dwest Pi ing & Controls, Inc.
206 North K a le Street
Bainbridge, 0 R 456 12
Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an t Health ’
Revrew Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119
00101326833:05
United States of America
OCCUPATIONAL SAFETY AND HEXLTH REVIEW COMMISSION
1365 Peachtree Street, N-E., Suite 240
Atlanta, Georgia 30309-3 119
Phone: (404) 347-4 I97 Fax: (404) 347-O113
SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 95-1435
MIDWEST PIPING & CONTROLS, INC., E -Z
Respondent.
Appearances:
Benjamin T. Chinni, Esquire Steve Houseman, Project Manager
Office of the Solicitor Midwest Piping & Controls, Inc.
U. S. Department of Labor Bainbridge, Ohio
Cleveland, Ohio For Respondent
For Complainant
Before: Administrative Law Judge Nancy J. Spies
DECISION AND ORDER
Midwest Piping & Controls, Inc., is a small pipe fitting company located in Chillicothe,
Illinois. It is one of at least two family-owned and operated businesses. Midwest fabricates, installs
and repairs piping systems, mainly for Mead Paper Corporation, a large employer in the area. As
a result of a complaint inspection conducted by William Wilkerson of the Occupational Safety and
Health Adminis&xtion (OSHA), Midwest was issued two citations on August 17, 1995. Two of the
cited items were contested: $1926.501 (b)( 1) (item 1 of serious citation No. 1) alleging that Midwest
failed to guard open sides of a walking/working surface; and 6 1926.250(a)(2) (item 2 of “other”
citation No. 2) alleging that Midwest failed to post a maximum safe load limit for this area.
As a preliminary matter, Midwest questions the legality of citing for conditions not a part of
the complaint to OSHA. Midwest further contends that the standards do not apply; but that if they
do, violations resulted from employee misconduct.
This case was heard on November 30, 1995, pursuant to the “E-Z” trial procedures set out
in Commission Rules 200-211, 29 C.F.R. §§ 2200.200-211. The E-Z trial is a pilot program
designed to provide simplified proceedings for resolving contests under the Occupational Safety and
Health Act of 1970.
The Inspection was Valid
No warrant was requested or obtained (Tr. 33). Midwest impliedly moves to dismiss on
grounds that OSHA had no right of entry to inspect for conditions which were not a part of the
complaint. Since Midwest challenges the validity of its consent to inspect, the Secretary must
support the appropriateness of OSHA’s conduct. Midwest, on the other hand, bears the burden of
establishing that entry was in some manner coerced. Sanders Lead Co., 15 BNA OSHC 1640,
1648-49 (No. 87-260, 1992). The dispute is to be resolved from “the totality of all the surrounding
circumstances.” Id.
OSHA received a complaint directed at Mead Paper Corporation and its “contractors”
(Tr. 30). When Wilkerson asked Mead who its contractors were, Mead named Midwest, among
others, even though Mead had no active contracts with Midwest at the time.
In 1993, at Mead’s request, Midwest moved its facility to the southeastern corner of Mead.
Although the facility was located within Mead’s large fenced perimeter, Midwest maintained
ownership of its own land and building through a permanent lease. A separate gate and chain-linked
fence separated Mead from Midwest. Wilkerson did not recall whether there was a gate between the
properties, but he did not observe Midwest to be separated from Mead. Wilkerson assumed that
Mead, rather than Midwest, owned the property. His assumption was not illogical. Even Midwest’s
employee, Ronald Hartmus, believed Mead to be the property owner. Wilkerson accompanied
Mead’s representatives as Mead came onto Midwest’s premises. Wilkerson first presented his
credentials to James Houseman, the father in the family that owns Midwest, but himself a non-
owner, and shortly thereafter to Steven Houseman, James’ son, project manager and an officer in the
corporation.¹ Wilkerson explained that he was there to conduct a complaint inspection and showed
the Housemans an excerpted copy of the complaint. The Housemans did not object when Wilkerson
came onto the property or, later, when Wilkerson discussed apparent violations not specifically
included as complaint items (Tr. 9, 31-32, 39, 49, 70, 72).
Wilkerson sought to check for unlabeled chemicals which might have been stored by a
“contractor” (a complaint item). He, therefore, looked for any area at Midwest which could serve
for storage. The area in question was also in plain view as Wilkerson came onto the property
(Tr. 66). Steven Houseman is educated and knowledgeable.² Even if he did not fully understand
that Wilkerson could cite for conditions in plain view while he investigated complaint items,
Houseman’s “[c]onsent can be voluntary without being fully informed.” Id. at 1649. Considering
the circumstances of the inspection, the Secretary’s actions were appropriate and reasonable. The
OSHA inspector was properly on the property, and he lawfully observed the contested conditions.
The motion to dismiss is denied.
Item 1 of Citation No. 1: § 1926.501(b)(1)
The Secretary alleges that Midwest failed to protect open sides of a walking/working surface
in violation of § 1926.501(b)(1). The standard is contained within Subpart M, and
provides:
(b)(1) “Unprotected sides and edges.” Each employee on a walking/working surface
(horizontal and vertical surface) with an unprotected side or edge which is 6 feet
(1.8 m) or more above a lower level shall be protected from falling by the use of
guardrail systems, safety net systems, or personal fall arrest systems.
Midwest’s facility is a single story metal structure, measuring 30 feet by 50 feet, with a
pitched roof. Inside the building is a concrete office and rest room. The office is 6 feet long by
6 feet wide, and its ceiling is 8 feet above the floor. Because of the configuration of the building,
there is a small surface space between the top of the office ceiling and the inside of the building’s
’ Midwest is owned 100 percent by Evelyn Houseman, wife of James and mother of Steven (Tr. 79).
2 In fact, at an informal conference with OSHA, Houseman advised that the originally cited standard
(§ 1926.500(d)(1) ) was no longer in effect and that § 1926.501(b)(1) was controlling. OSHA acknowledged the
error and amended the citation (Tr. 43).
3
slanting roof (Tr. 9, 10). This area above the ceiling may be considered a “walking or working
surface” if it was used as such by the employees. The Secretary maintains that employees worked
from the surface and that its two open sides should have been protected by installation of guardrails.
To establish a violation of a standard the Secretary must show 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
Manufacturing & Welding Corp., 15 BNA OSHC 1218, 1222 (No. 88-821, 1991).
The only way to access the area above the ceiling was to use a step ladder, which was usually
kept in or near the office. There was no permanent access to the space (Tr. 12). Occasionally,
employees placed objects, such as a tarp, a discarded bicycle, water cooler, and rubber boots on the
surface above the office ceiling. These items could be reached from the step ladder. There is no
evidence that within the period at issue employees went onto the surface and were exposed to the
fall hazard while retrieving or placing these articles (Tr. 13). However, stored above the office
ceiling, but in the tiers, were 20-foot long pieces of stainless steel tubing which were used in the
pipefitting process (Tr. 78). Employees regularly climbed onto the surface to store and retrieve the
tubing. During the investigation, employee Steve Schneider informed Wilkerson that he relieved
tubing the previous week by going onto the surface (Tr. 38). Although employees conceivably could
reach the tubing by more contrived methods, employee Hartmus considered getting up onto this
surface to be “the only sensible way to do it” (Tr. 19). It was, in fact, the way employees did do it.
Hartmus estimated that employees would go up to get the steel tubing “once a month, if that”
(Tr. 11). Employees used the area as a walking/working surface when they stored and retrieved the
tubing. Since two sides of the 6 foot square area were unguarded, employees were exposed to an
8-foot fall “if they were to trip, fall or stumble” (Tr. 49). A fall of 8 feet predictably results in
broken bones or, conceivably, in death.
The tubing was originally placed and later retrieved by foreman, James Houseman, or by
employees working under his direction (Tr. 13). The knowledge of a supervisory employee (even
if not formally a member of management) may be imputed to an employer. It is appropriate to
impute James Houseman’s knowledge to Midwest in this case. Further, Steve Houseman was or
should have been aware that employees stored and retrieved tubing from the surface above the office
4
ceiling without using fall protection (Tr. 39, 66). The Secretary has shown each of the elements of
a violation. The serious violation will be affirmed unless Midwest establishes a defense.
No Employee Misconduct
Midwest asserts that if a violation occurred, it was the result of unpreventable employee
misconduct. In order to establish this defense, an employer must prove that : (1) it had work rules
designed to prevent the violation; (2) the work rules had been adequately communicated to its
employees; and (3) it had taken steps to discover violations, and had effectively enforced the rules
when violations had been discovered. Falcon Steel Co., 16 BNA OSHC 1179, 1193 (No. 89-3444,
1993).
(1) Established Work Rules
Midwest did not utilize guardrails, which was the most practical form of fall protection for
this surface. It asserts employees knew they should, therefore, use personal fall protection.
Midwest’s safety rule adequately addressed the hazard as follows (R-2, p. 9a):
1. Unprotected Sides and Edges. Each employee on a walking/working surface
with an unprotected side or edge which is 4 feet or more above a lower level
shall be protected from falling by a guard rail system or personal fall arrest
system.
(2) Adequate Communication
Employees were given a copy of this and Midwest’s other safety rules. Employees signed
their names to verify that they read the rules. Referring to being tied off when working from
unprotected sides above 4 feet, Hartmus explained that, “I would know [of the requirement],”
although “I wouldn’t necessarily agree with it” (Tr. 17-18). Hartmus’ earlier testimony illustrates
that employees did not understand how the work rule should be applied (Tr. 13):
Q. To your knowledge, was there any requirement of management for
employees to tie off on this roof area?
A .. I don’t think, on my part, it was ever thought of. I mean, we wasn’t told to
or not to.
Q .. So no one instructed you, in other words, that you were to?
A .. No. Like I said, if I went up there 100 times, I would have never thought of
it myself. I never thought it was a necessity myself
(3) Effective Enforcement
Employees, including foreman James Houseman, were not disciplined for working from the
space without guardrails or fall protection (Tr. 13). When a foreman responsible for directing the
actions of other employees himself violates a work rule, it is “strong evidence” that the rule was not
adequately enforced. Hamilton Fixture. 16 BNA OSHC 1073, 1090 (No. 89-1720, 1993). Daniel
Const. Co., 10 BNA OSHC 1549, 1552 (No. 16265, 1982). Nothing in this case overcomes that
“strong evidence.”
The work rule was not adequately communicated or enforced. Midwest has failed to
established its defense. The violation is affirmed.
By statute, the Commission considers the size of the employer’s business, the gravity of the
violation, the good faith of the employer, and the history of previous violations in determining an
appropriate penalty. Hern Iron Works, Inc., 16 BNA OSHC 1691, 1624 (No. 88-1962, 1994).
Midwest is a very small employer. At the time of the inspection only two pipefitters and the
Housemans were employed. Credit for good faith is appropriate, contrary to Wilkerson’s opinion
that credit was precluded because the violation was in plain sight. Midwest cooperated with the
inspection. It even brought in welders from a sister company to enable the Secretary to monitor for
lead exposure. Midwest had a written safety program and had safety equipment on site. It had no
history of previous violations (Tr. 17; 41-42, 53). Gravity, which is the primary factor in arriving
at a penalty, includes consideration of the number of exposed employees, the duration of exposure,
precautions against injury, and the likelihood that injury would result. Id. Two employees were
exposed during the infrequent but regularly anticipated periods when tubing was stored and retrieved
for use in the pipefitting process. The duration of the exposure was short. A penalty of $400 is
assessed.
Item 2 of Citation No. 2: § 1926.250(a)(2)
The Secretary asserts that the working surface above the office was also a “storage area.”
Midwest had not posted maximum safe load limits for this area, allegedly in violation of
§ 1926.250(a)(2). The standard requires:
(2) Maximum safe load limits of floors within buildings . . . shall be
conspicuously posted in all storage areas, except for floor or slab on grade.
“Storage area” is broadly defined. Not so broad, however, as to encompass any elevated
surface upon which items are placed. Acknowledging that the area was not intended to be used for
storage, Wilkerson considered the allegation “technical.” He cited “to make sure the company was
aware that if they’re going to store up there, they needed to consider the storage capacity of the
floor” (Tr. 46). The asserted violation is anticipatory. The standard was cited in the expectation that
Midwest may change the surface into a storage area at some future date. The violation is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
Based on the foregoing decision, it is ORDERED:
(1) Item 1 of serious citation No. 1, alleging a violation of § 1926.501(b)(1), is affirmed
as serious and a penalty of $400.00 is assessed.
(2) Item 2 of “other than serious” citation No. 2, alleging a violation of § 1926.250(a)(2),
is vacated.
ISI NANCY J. SPIES
NANCY J. SPIES
Judge
Dated: January 11, 1996
Atlanta, Georgia
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