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I 4 OSHRC UPDATE *~~rSteplaanle Sdrt~ rtor ~! Ludwig Cited For Failure To Provide Protective Equipment Following Inconclusive Testimonies AU says rule's enforcement lax enough for'obvious violation' E LudwlQ Mcfnt osh Bulk Haulers, Sacre- tary olLabor v. (decfsion isaued Dec. 9)- Ludwig-Mcintosh Bulk Hauiei Inc. was or- dered to pay a $5,000 penalty by the Occu- pational Safety and Health Review Com- mission for failing to require protective eye and face equipment where there Is a rea- sonable probability that Injury can be pre- vented by such equipment. OSHA's inspection was prompted by an employee complaint at Ludwig's Toledo, Ohio., facility. Kevin Bailey, a mechanic, sustained a serious Injury when a drill bit broke and a fragment of it struck him in the right eye. Two versions of what occurred leading uptothe accident were discussed In teBastii claimed that when he returned from vacation June 2,1992, he requested a pair of safety glasses but was told towait for an expected shipment ot"¢heaper"glasses. His accident occurred nine days later. His supenrisor, however, said'that Bailey requested glasses just three days before his accident and thafhe had glasses at that time, but that theywere oily. The supervisor also said that he got new glasses the next day, June 10, but that Bailey did not pick up a new pair. Bailey's version Is suspect, his supenrisorr alleged, because he filed a workers' corn- pensation claim, and' under Ohio proce- dures, an employee can collect substan- tially higher benefits If the employee's injury was caused by the employers violation of a specific standard. Testimony by Ludwig secretaries and other workers proved inconclusive as all reports were conflicting. The administrative law judge ruled tftat'despite the existence of an effectively communicated work rule requiring employees to wear safety glasses in the shop area, enforcement of the rule was lax enough for an obvious violation of the rule to occur in the presence of the shop foreman without drawing a warning ordisci- plinary action. Ludwig's unpreventable em- ployee misconduct defense must fail.' R.G.M. Construction Company Mc., Secretary of Labor v. (directed' for review Jan. 9) - R.G.M. Construction Company Inc.6led a petitioniorreview afteranadmin- istratiwe law judge ordered the firm to pay $2,400 for four citations Involving serious violations. The citations resulted from an OSHA in- spection conducted June 5, 1991, at a JANUARY 21.1994 bridge-widening project located on the Colo- rado River outside Bastrop, Texas. The inspection followed employee complaints about the job. Two of R.G.M.'s employees, who reported the alleged safety violations to OSHA, tes- tified that they had removed lumber form, called form wrecking, without fall protection. The compliance officer testified' that em- ployees could have broken bones or drowned had they fallen, that she saw no acceptable way to tie off under the bridpe„ and that a safety net was the only practical fall protection. Records show the water under the bridge was about 4.5 feet deep at the time of the inspection and that the bridge was approxi- mately 32 feet above the river's surface. Further, the employees, whodonotspeatc English, testified that they received the company's safety manual and attended safety meetings at the site. They also said they were asked once to sign sheets for meetings they had not attended. Employees testified that noone Instructed them to tie off and that their supenrisoratthe sRe only told them to be careful and not fall off the bridge. (They identified witnesses who saw them working without fall protec- tion under the bridge.) However, Steve Muckleroy, the firm's vice president, argued that R.G.M. has been engaged in heavy construction for 10 years, has an outstanding safety record,, and that its only significant work injury was a back injury. He also said employees at the sub- ject site were protected by guardrails, life- lines, safety belts and lanyards. The AU described testimony from the employees making the complaint as vague, contradictory and 'simply not believable.... A number of their responses Indicated a lack of candor and a deliberate attempt to discredit R.G.M.' However, the judge found R.G.M. to be In violation of one serious and one 'other' violation of fall protection standards. Be- cause of the firm's size, history and good faith, however„ he assessed total penalties of $2,400. In Its request for review, R.G.M. said it disagreed' with the judge's decision that the firm was in serious violation of OSHA stan- dards and that the judge "made determina- tions of credibility of witnesses and resolved conflict of testimony" without being present at the trial. They also asserted the OSHA officer cit- ing the violations was inexperienced, that the secretaryi'ailed to meet his "burden of proof to show that safety nets were required and that other fall protection devices were An OSHRC Primer The Occupational Safety and Health Review Commission is an independent federal agency that adjudicates challenges to OSHA citations or penalties. Employers may contest a cita- tionand/orpenaltywithin 15 busi- ness days after receipt of the 6itation. Upon notification from the De- partment of Labor„ OSHRC ini- tistes a case file, and a docket number Is assigned at the na- tbnal office in Washington, D.C. All affected parties then are no- tified by rnail of the case docket A hearing date Is set for the closest practical city near where the alleged violations took place. An administrative law judge from the commission oonduds the proceedings. An employer cited by OSHAor the affected employee may ap- pear wtth or without legal ooun- sel. The secretary of labor is represented by a government anM .AWI d'ecision becomes fi- nal within 30 days, unless within that period the decision is dr rected for review at a higher level by one of the three commission- ers appointed by the president of the United States.. If a party petitions for oommis- sion review by OSHRC, but the case is not directed for review, the petitioning party then may request review by a circuit court of appeals. The rules for OSHRC can be found in PaA 2200 of Title 29 of tha Code of Federal Regulations. Cltatlon Terms wufuP violations are those committed with an Intentional disregard of, or plain indifference to, the requirements of the OSH Act and regulations. "Serious'viblations are those In which there Is a substantial prob- abiiity that death or serious physi• cal harm could result and in wftich the employer knew or should have known of the hazard. 'Other-than-serious'vioiations comprise all others, with the ex- oeptionof'de minimis'violations.. which are considered neg6gible.. 'Prima facie evidence Is that which is visible at first sight, with- out further examination. Commission Information Address: One Lafayette Centta 1120 20th St. NW, 9th Floor Washington, DC 20036-3419 Phone: (202) 606-5398 23

BRIEFS ~~ REFORM RILL WILL GET FINAL NEARINiiS ON NRl Final hearings on Democrat'- sponsored legisiationto reform the Occupational Health and Safety Act will be heid shortly after law- makers return Jan. 25, according to stanecs on Capitol Hill. No dates have been set OSHAadministratorJoe Dear isexpected'toaddressthe House Education and Labor Comrnit- tee, while Secretary of Labor Robert Reich is expected to speak to the Senate Labor and Human Resources Committee. The Comprehe nsive Occupa- tional Safety and Health Reform Act (S 575, HR 1280) would re- quire that all employers covered by OSHA have safety and health Pograms. FEDERAL APPEALS COURT RUCES ON WORKERS' ORU6 TESTIN6 Random testing for illegal drug use may be conducted bythe Fed- eral Bureau of Prisons among all employees except those working outside prison institutions who do not have access to information regardiitg the vdtness security pro- gram, the 9th U.S. Circuit Court of Appeals has ruled, The decision modifieda lower court Mjuncciion, issued In May 1992, that testricted random test- Ing among federal prison staff primarily to employees regularly assigned to carry fireamts, phy- sicians and dentists with regular contact with Inmates, and other law enforcementsmpksyees with substantial inmate contact. AINA OFFERS NEW COURSES FOR 1!!1 The American Industrial Hy- giene Association Is offering a va riety of shodcourses designed for occupational and environ- mental safety and health profes- skxtis. Toptcs of the courses Indude iftdoor air quality and HVAC, In- dustrial ventilation and quantita- tive Industrisl hygiene. The organization also Is offer- ing a comprehensive review course for preparing ind'ividuats for the Certified Industrial Hygien- ist Exam, and a new course titled 'What Every Industrial Hygienist Needs to Know about Safety' For more Information, contact Vicki Neal at (703) 849-8t388. OSHRC UPDATE not practical,' and that the judge relied on, evidence from the 'inexperienced" compli- ance of f ice r and f rom noncredibi e witnesses. Super Sky Products Inc., Secretary of Labor v. (decision issued Nov. 9) - Super Sky Products, located across the street from Department of Labor offices in Cleve- land, was assessed $4,500 in penalties after a Labor Department attorney and an OSHA director spotted a worker violating two seri- ous safety standards. The attorney, who noticed the workerfirst, testified that she did not see a lanyard or safety line on the worker. After consulting the OSHA assistant area director„ the two viewed the worker's environment through binoculars and agreed that the worker was not tied off. Based on testimony, the secretary con- dhded that the worker was exposed to the hazard of a 20- to 25-foot fall to the end of the atrium, and' an additional' 30- to 40-foott faU to the patio below the atrium. The company was cited for failure to re- quire the wearing of appropriate personal protective equipment for an employee ex- posed'to a hazardous condition and failure to ensure that the side rails of a ladder used for access to an upper landing surface ex- tended at least three feet above the upper landing surface to which the ladder was used to gain access. Armstrong Steel Erectors, Secretary of Labor v.(direcfed for review Jan. 11)- A decision that would have required Armstrong Steel Erectors Inc. to pay a $12,250 penalty for serious and nonserious violations has been directed for review after Armstrong argued that the administrative law judge's "disposition upon numerous is- sues in the dispute was improper.' Armstrong, subcontracted to perform structurat: steel, placement on two bridges over two rivers in Ohio, was cited by OSHA for not having guardrails on a painter's plank alleged to be a scaffold, failure to utilize guardrails while work was being per- formed on a pier cap, failure to use standard guardrails while work was being performed while utilizing wood planks to access beams and failure to protect against alleged pro- truding rebar. Issues thatthe oompanydisputedinclude: whetherthe cited OSHA standards are valid and applicable to the bridge operation„ whetherthe decision affirming citationscort- forrns with applicable law and whether the AU refused' to recognize the defense of Infeasibility. In its first argument. Armstrong said there Is no requirement for a standard guardrail on a concrete pier cap. The AU found the piercap wasperrnanentand therefore guard- rails were required. However, Armstrong argued that the stan- dard does not require guardrails in all in- stances.'The standard cannot be construed to require an employer to provide guardrails while over water,' Armstrong said. Second, Armstrong argued that the AU erred in his opinion that guardrails are re- quired on painter's picks. The AU ruled that because a pick is movable, it is a scaffold. The judge failed to note that the `scaffold regulation specifically exempts certain scaf- foldsirom guarding " Armstrong said. Armstrong also was cited for failing to have guardrails on a'runway.' Employees walked along 18-inch-wide steel beams to access work areas and no citations were issued, Armstrong said.'Suddenly, when a plank is interspen.ed across two beams, it is • not a runway which requires guardrails,' ahe . company argued. A portable plank could not be cited under this section since it ap- plies only to; permanent structures. Armstrong argued. The AU also penalized that company for failing to guard protruding steel. Armstrong oontended'that, while there was rebar, kxnger kngthswere bentover. Employee witnesses saw and observed no danger, and it was merely the compliance oHicer's opinion that an employee somehow could fall between the net over the rebar. Armstrong also argued that It should be allowed to use the infeasibility defense. South west Refractory Inc., Secretary of L.bor v. (decision issued Dec. 2)- Failure ~, tokeepempkoyeesclearofsuspended load s and loads about to be lifted by a sling has resulted in a 53,00t) penalty against South- west Refractory in Sapulpa, Okla. The death of a Southwest employee prompted an Apn123,1992, OSHA investi- gation. A 17,000-pound pipe had to be lifted' during a refractory process so refractory material could be applied to the other side of the pipe. Mobile Crane Services Inc. was hired for the task. When a Southwest employee helping on the job crouched beneath the suspended pipeto shift some of the timbers, the pipe fell on him. There is no question that the employee was exposed to a hazard as he worked near the suspended pipe, the administrative law judge said. His failure to stay out from under the load clearly violated the mandate of the cited standard, the judge said. Southwest arguedthat Mobile was incharpe of all lifting operations that day and therefore the responsibility for the cited violation be- longs to it and not Southwest. The company also contends that it did address this hazard in its workplace and that the worker was well aware of the risks involved in being under- neath a suspended load. However„ South- west was cited for failing to keep its own employees clearfrom the suspended load. 'An unpreventabte employee misconduct~ defense has not' been established and the alleged violation must be atlirmed" the judge ruled. 24 OCCUPATIONAL HEALTH & SAFETY NEWS