Docket No. 77-1971

STATE MOVING-TRUCKING, INC.

OSHRC Docket No. 77-1971

Occupational Safety and Health Review Commission

November 30, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners

COUNSEL:

Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor USDOL

Robert F. Arrigan, for the employer

OPINION:

DECISION

BY THE COMMISSION:

An ironworker fell to his death when the mast of a stiffleg derrick he was dismantling collapsed. The Secretary of Labor ("Secretary") issued a citation n1 alleging that Respondent, State Moving-Trucking, Inc. ("State"), had violated section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). n2 Administrative Law Judge Abraham Gold vacated the citation, concluding that State did not violate section 5(a)(1). Commissioners Cleary and Cottine directed this case for review under 29 U.S.C. § 661(i). For the reasons that follow, we reverse Judge Gold's decision and conclude that State failed to comply with section 5(a)(1). We assess a penalty of $600.

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n1 The citation, among other things, alleged: "ironworker dismantling stiffleg derrick, working high above pavement, was not provided with safe working surface, or equivalent protection."

n2 Section 5(a)(1) provides:

Sec. 5(a) Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.

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After submitting a bid of $1,500, State was awarded a contract by Bird & Son ("Bird") to dismantle a stiffleg derrick on Bird's property and to clean the surrounding area. n3 This was only State's second job. n4 The derrick was to be removed because it had not been used for 22 years and was rusting. Prior to commencement of the job, John Pompeii, president of State, was shown blueprints of the derrick by a representative of Bird. n5

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n3 A stiffleg derrick is a fixed derrick whose mast is capable of being rotated and is supported or held in place by two or more rigid members, called stifflegs. The term "stiffleg derrick" is defined in the standard at 29 C.F.R. § 1910.181(a)(9). see also American National Standard Institute (ANSI), Safety Code for Cranes, Derricks, Hoists, Jacks, and Slings, B30.6-1969, § § 6-0.2.1.9 and 6-1.2.3a (1969).

n4 State had been incorporated approximately one and one-half months before the incident. The four officers of State, who were its only full-time employees, previously had worked in the rigging and moving business.

n5 These blueprints are not part of the record, nor was any evidence presented concerning the content of the blueprints.

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In order to carry out the dismantling of the derrick, State rented a 30-ton crane from Gansett Crane Service. Along with the crane, Gansett supplied a crane operator and oiler. Before the work began, Pompeii asked Peter D'Ambruoso, president of Gansett, for suggestions regarding the dismantling of the derrick. D'Ambruoso testified that his reply was, "John, I know nothing about a derrick. There's not much I can suggest to you."

Pompeii also asked D'Ambruoso if he knew anyone available for work who could climb the derrick and cut the stifflegs with a torch. D'Ambruoso informed Pompeii that David Mandeville, an unemployed ironworker, had recently inquired about work. Using D'Ambruoso as an intermediary, State engaged Mandeville to cut the stifflegs for a fee of $75.

After arriving at the Bird facility with Mandeville, Ralph Imperatore, the Gansett crane operator, went to Pompeii to find out what he wanted done. Pompeii indicated that the boom of the derrick was to be taken down first, and then the other sections were to be removed. The boom swung from a vertical member, called a mast, which was [*4] held in place by two stifflegs attached to the top of the mast. Pompeii also told Imperatore to support both stifflegs with the crane, but Imperatore replied that he would not use the crane to support two loads because of the danger of the crane tipping. Instead, he told Pompeii that he "would take [the derrick] down the way that [he] felt was best. . . ."

After the crane's guy wires were hooked to one stiffleg, Mandeville ascended to the top of the mast of the derrick, climbing the first 40 feet on a ladder and the remaining 22 feet on the mast webbing. According to Imperatore, Mandeville was supposed to stand near the top of the mast and cut part way through the stiffleg that was hooked to the crane. Mandeville then was to move onto that stiffleg in order to get into a better position to complete the cut. n6

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n6 Pompeii testified that he did not realize that Mandeville had climbed the mast to cut the stiffleg, since Imperatore had instructed Mandeville to attach guy wires before cutting the stiffleg. Pompeii's testimony was unclear with respect to the purpose of the guy wires and where they were to be attached. Further, Imperatore stated that he did not instruct anyone to place guy wires.

[*5]

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Imperatore testified that it took Mandeville "quite a while" to cut the stiffleg. Pompeii testified that when Mandeville shouted that he had an inch to go, he (Pompeii) hollered "no, no." At that point the unsupported stiffleg and mast wobbled and then fell to the ground. Mandeville unsuccessfully tried to move over to the supported stiffleg, was jarred loose from the mast, and fell to the ground. At the time of the incident, Pompeii and the other three officers of State, who were assisting in the operation, were standing in the vicinity of the derrick. n7

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n7 Pompeii was standing behind the crane. McWeeney, the treasurer, was at the foot block of the mast when it started to fall. Another officer was near the paper shed acting as a fire watch. The falling mast struck the roof of the paper shed. The fourth officer was working on a rig at the time of the incident.

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The mast of the derrick was connected to the ground by only a ball [*6] joint and, therefore, was without sufficient support when the stiffleg that was attached to the crane was cut away from the mast. According to Imperatore, neither Pompeii nor any other person associated with the job knew that the mast was not bolted or cemented in a fixed position at the base. n8

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n8 OSHA compliance officer John Koska testified that Pompeii told him that he (Pompeii) thought that the mast was bolted at the bottom and therefore would remain vertical after one stiffleg was cut away.

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Martin Byrne, business agent for Local 237, Ironworkers' Union, testified that the method used to dismantle the stiffleg derrick was improper. n9 According to Byrne, the correct method of dismantling a stiffleg derrick is to first place temporary guy wires on the mast to hold the mast in place, and then to remove the stiffleg. n10

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n9 The parties stipulated to Byrne's expertise and knowledge with respect to the ironworking industry. Also, State's counsel stated that Byrne was "eminently qualified" concerning setting up and dismantling cranes.

n10 Byrne also stated that, as a less preferable alternative, a crane with a jib attachment could be used to support the mast and one stiffleg while the derrick was being dismantled. John Koska, a compliance officer, agreed with the use of guy wires, but also suggested that, as an alternative, two cranes could be used to support the mast and a stiffleg.

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II.

Judge Gold determined that Mandeville was not an employee but rather was an "independent contractor unprotected by section 5(a)(1) of the Act." However, the judge found that the four officers of state were State's employees for purposes of the Act and that the officers were exposed to the hazard of the derrick collapsing on them. The judge also found that this hazard was recognized by the ironworking industry. Nevertheless, the judge concluded that State should not be found in violation of section 5(a)(1). The judge determined that State's four officers were riggers, were not members of the ironworking industry, and relied upon the crane crew and upon Mandeville to perform their part of the operation. The judge also noted that no one participating in the dismantling operation knew that the vertical mast was not bolted or cemented at the base. The judge further pointed out that Mandeville understood that he was to cut the stiffleg only part way, then move from the mast to the stiffleg, and that Mandeville cut too far. The judge therefore concluded that State had a right to rely upon the expertise [*8] of Mandeville, whose mental lapse it could not have foreseen or prevented.

III.

On review, the Secretary maintains that State violated section 5(a)(1) by neglecting to ascertain that the mast of the derrick was connected to the ground by only a ball joint. The Secretary contends that, contrary to the judge's conclusion, State either knew, or should have known, that the unsupported mast of the derrick was potentially unstable. In the Secretary's view, Mandeville was exposed to the hazard of falling from the derrick, and State's officers were exposed to the hazard of the derrick falling on them. n11 The Secretary further maintains that State could have prevented the collapse of the mast by securing the mast with guy wires or other effective means. n12

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N11 The Secretary takes exception to the judge's conclusion that Mandeville was an independent contractor, and the Secretary argues that Mandeville should be found to be an employee of State for purposes of the Act. However, we do not find it necessary to determine whether Mandeville was an employee since we agree with the judge that State's officers were exposed to the hazard of the derrick falling on them. Neither party took exception to the judge's holding that State's officers were employees for purposes of the Act.

n12 State did not file a brief on review.

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To establish a section 5(a)(1) violation, the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized and likely to cause death or serious physical harm to its employees. See Little Beaver Creek Ranches, Inc., 82 OSAHRC , 10 BNA OSHC 1806, 1982 CCH OSHD P26,125 (No. 77-2096, 1982). The Secretary must also demonstrate that there were feasible means available to abate the hazard. Id; National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973).

A recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or by the employer in particular. Beaird-Poulan, a Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979); See Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (1981). The hazard in this case was the possibility of the mast and adjacent portions of the stiffleg derrick collapsing while it was being dismantled. Byrne, a business [*10] agent for the ironworkers' union, gave unrebutted testimony that the derrick was not properly dismantled and that the correct method of dismantling the derrick was to support the mast of the derrick with guy wires or a crane before a stiffleg was detached from the mast. The parties stipulated to Byrne's expertise with respect to the ironworking industry, and State's counsel stated that Byrne was "eminently qualified" concerning setting up and dismantling cranes. Therefore, we conclude that an employer engaged in the business of dismantling derricks should have known that the method used here to dismantle the derrick was improper and that the mast of the derrick should have been secured. Accordingly, we find that the hazard at issue is this case was recognized by the derrick-dismantling industry.

State's officers previously had worked as riggers and movers, and the contract with Bird was only State's second job. However, an employer who undertakes a project outside of its normal area of work cannot, on the grounds of its ignorance of the new area, be excused from obligations that apply to employers who normally work in that field. In this case, State sought the contract for dismantling [*11] the derrick and State undertook the project. Consequently, State should be held responsible for recognizing hazards inherent in dismantling derricks.

The judge concluded that State should not be found in violation of section 5(a)(1) since State had a right to rely upon the expertise of Mandeville, an ironworker. However, State, rather than Mandeville or the crane company, was responsible for the overall management of the dismantling operation. State obtained the contract for the project, undertook the work, and State's four officers were taking part in the project at the time of the incident. Moreover, Mandeville had no expertise in dismantling derricks, and State did not ask whether he was knowledgeable about derricks when it engaged him to cut the stifflegs. Additionally, before the project began, Pompeii was told by the crane company's president that he knew nothing about dismantling derricks. Therefore, State could not have relied on the derrick-dismantling expertise of Mandeville or the crane company. Thus, under the circumstances of this case, State must be held responsible for assuring that the derrick was dismantled safely. If State lacked the expertise to accomplish [*12] the work safely, as appears to have been the case, then it should have hired others with sufficient expertise to plan and supervise the project, which it also failed to do.

Pompeii, State's president, testified that he did not realize until just before the collapse of the derrick that Mandeville was cutting the stiffleg. Pompeii stated that he thought that Mandeville was in the process of attaching guy wires. This testimony was not discussed by the judge and conflicts with testimony given by the crane operator, Imperatore. However, even assuming that Pompeii did not realize that Mandeville was cutting the stiffleg until shortly before the derrick collapsed, this does not relieve State of responsibility for the alleged violation. As general contractor, State was responsible for assuring that the work was accomplished according to a safe work plan. n13 See, e.g., National Industrial Constructors, Inc., 81 OSAHRC , 10 BNA OSHC 1081, 1981 CCH OSHD P25,743 (No. 76-4507, 1981). Crane operator Imperatore, however, had rejected Pompeii's instructions to have the crane support both stifflegs while the derrick was being dismantled. Rather, Imperatore had stated that he [*13] would take the derrick down the way that he felt was best, and Pompeii, apparently acquiescing in this, let the work proceed. Thus, Pompeii did not assure that a safe procedure would be used to dismantle the derrick, but rather relinquished selection of a dismantling method to the crane operator. Since State's president neglected to ascertain whether a proper method was to be used to dismantle the derrick, his asserted failure to realize until the last moment that Mandeville was cutting the stiffleg does not relieve State of responsibility for the improper manner in which the derrick was being dismantled.

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n13 Chairman Rowland would not rely on State's status as a general contractor as a basis for finding that it committed a violation but instead would rely upon State's role, as detailed above, in undertaking and carrying out the dismantling of the derrick.

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The judge noted that Mandeville cut the stiffleg "too far" before he attempted to move from the mast to the supported stiffleg. The judge therefore concluded [*14] that State could not have foreseen or prevented Mandeville's "mental lapse." However, Byrne testified that Mandeville's cut of the stiffleg from the unsupported mast was an improper method of dismantling the stiffleg, and that the mast and stifflegs of the derrick needed to be supported during the dismantling operation. Therefore, whether Mandeville cut too far is irrelevant, since a proper method for dismantling the derrick would have required that the derrick be adequately supported during the dismantling operation.

The record indicates that the likely result of an employee being struck by the falling 62-foot high mast and stiffleg would be death or serious injury. Moreover, the feasibility of abatement in this case is clear. The evidence establishes that the collapse of the derrick could have been prevented by securing the mast with guy wires or by securing it with another crane.

For the reasons discussed above, the criteria for a section 5(a)(1) violation have been met. Considering the gravity of the violation and State's size, good faith, and prior history, we conclude that a penalty of $600 is appropriate. Based upon both the extreme danger posed by the collapse of the [*15] derrick and the unsafe method used by State to dismantle it, we find the gravity of the violation to be high. While State's efforts at protecting its employees' safety were inadequate, we do not find such lack of protection to be the result of a lack of good faith. We also note that State is a small employer with no history of previous violations.

For the foregoing reasons, we reverse Judge Gold's decision with respect to the section 5(a)(1) citation and we find State in violation of section 5(a)(1). We assess a penalty of $600.

SO ORDERED.