United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104









Secretary of Labor, 	
Complainant,

	
v.

	OSHRC Docket No. 01-0456
S. E. Johnson Companies, Inc., 	
Respondent.

	



Appearances:



Paul G. Spanos, Esq., Office of the Solicitor, U. S. Department of
Labor, Cleveland, Ohio

For Complainant



Jack Zouhary, Esq., S. E. Johnson Companies, Maumee, Ohio

For Respondent



Before: Administrative Law Judge Nancy J. Spies



*DECISION AND ORDER*



S. E. Johnson Companies (S. E. Johnson) is a general contractor
specializing in heavy construction, such as bridges and highways. On
September 18, 2000, an employee of S. E. Johnson's subcontractor fell 17
feet from an elevated work platform and was severely injured. On October
18, 2000, as part of its local fall emphasis program, Occupational
Safety & Health Administration (OSHA) compliance officer Steven Medlock
investigated the circumstances surrounding the accident (Tr. 21-22). As
a result of the inspection, OSHA issued S. E. Johnson a serious citation
on February 16, 2001.

The Secretary alleges that S. E. Johnson insufficiently pre-planned for
adequate fall protection in violation of § 1926.502(a)(2) (item 1). She
further asserts that a section of guardrail had only one railing and
that it was not anchored to withstand 200 pounds of force in violation
of §§ 1926.502(b)(2) (item 2) and 1926.502(b)(3) (item 3). S. E. Johnson
denies the allegations and asserts that if any violation occurred it was
the result of the misconduct of the subcontractor's employee. For the
reasons that follow, the Secretary failed to prove a violation for
oversight and fall protection planning (item 1). The Secretary
established that S. E. Johnson failed to comply with two specifications
for adequate guardrails (items 2 and 3). S. E. Johnson failed to prove
its employee misconduct defense.

*Background*

S. E. Johnson was the general contractor for the Fort Washington Way
bridge and roadway project in downtown Cincinnati, Ohio. S. E. Johnson
subcontracted with J & B Steel (J&B) to perform some of the rebar and
the post-tensioning work for a portion of the project. At Pier 2 Bridge
29, both companies' employees worked at the upper and lower work areas
(the upper platform was level with the bridge and the lower platform was
below the bridge). Although both areas originally had full guardrails,
by the time three of S. E. Johnson's carpenters began to remove the
concrete forms from the poured structures on September 16, 2000, an
8-foot, 6-inch section of guardrail had been removed from the edge of
the lower platform near the ladder (Tr. 12-14, 22). S. E. Johnson's
employees walked close to the open edge as they climbed or descended the
ladder between the upper and lower platforms. Completing their work on
the south end of the platform, which still had guardrails, the three
moved back towards the north end of the platform, which did not have
guardrails (Tr. 25).

After the employees began work in that area, S. E. Johnson's foreman
Kevin Masters noticed that the guardrail section was missing. He
discussed the missing guardrail with carpenter apprentice Cheyenne
Fowler. Fowler suggested that he could wire in a 2 by 4-inch piece of
lumber to serve as a top rail. Fowler tie wired a single piece of lumber
to the ends of the two columns which spanned the distance of the missing
guardrail. The crew was in a hurry to get the work finished but was also
concerned with the appearance of safety compliance. When Masters saw how
the edge had been guarded, he said, "it is better than nothing" (Exh.
C-4). Masters advised the employees to try to stay 7 feet away from the
edge, even though they had to be within 18 to 24 inches when they went
up and down the ladder. When finished removing the formwork, the crew
left the guardrail wired in place (Exhs. C-2, C-4; Tr. 14, 27).

On September 18, 2000, on the lower platform under the bridge, the
employees of its subcontractor J&B post-tensioned ("stressed" or
stretched) the bundles of cables which ran through the bridge floor and
protruded out the side. S. E. Johnson's employees were also on the
platform to assist with the process. To post-tension the cables J&B
employees placed the large C-clamp of a "ram" (a metal fastener) around
the cables, and with hydraulic pressure they stressed the cables (Exh.
C-2; Tr. 13-14, 66, 96). J&B employee Timothy Ripberger waited for the
progression of the work to reach him, and he sat on or rested against
the railing which Fowler had wired to the column two days before.^(1)
<#N_1_> As Ripberger sat or leaned on the top rail, one of its ends
slipped out of the wire. Ripberger fell backwards and hit the ground
17 feet below. He suffered severe injuries which required prolonged
hospitalization (Tr. 43, 99).

After Ripberger's fall, S. E. Johnson conducted its own investigation of
the accident and took statements from its employees concerning the
circumstances of the incident. S. E. Johnson turned these statements
over to Medlock during the course of OSHA's investigation. Medlock also
interviewed employees as part of his investigation.

*Discussion*

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer's noncompliance with the
standard's terms, (c) employees access to the violative conditions, and
(d) the employer's actual or constructive knowledge of the violation.



/Atlantic Battery Co./, 16 BNA OSHC 2131, 2138 (No. 90-1741, 1994).

Item 1: § 1926.502(a)(2)

The Secretary asserts that S. E. Johnson did not pre-plan for fall
protection and did not have a competent person examine the guardrail
system utilized in violation of § 1926.502(a)(2). The standard provides:

Employers shall provide and install all fall protection systems required
by this subpart for an employee, and shall comply with all other
pertinent requirements of this subpart before that employee begins the
work that necessitates the fall protection.



The Secretary contends that § 1926.502(a)(2) requires S. E. Johnson "to
pre-plan the construction of its fall protection system, and have an
individual competent in the inspection or construction of fall
protection systems inspect the system prior to any work by employees"
(Secretary's brief p. 7). Even if this interpretation were the correct
one, the Secretary's proof for this violation is not compelling. S. E.
Johnson's bridge and highway project had safety planning and oversight.
Curt Puse, S. E. Johnson's environmental health and safety specialist,
performed site inspections. The City of Cincinnati employed the safety
consultant company, Parsons Brinckerhoff, to check for construction
quality and to make on-site safety inspections. Additionally, safety
consultant M.A.C. Paran Consulting Service, Inc., had several
individuals continually on-site to walk the area reviewing it strictly
for safety compliance (Tr. 90-91, 141, 165-166). S. E. Johnson's
employees were aware that they needed to have guardrails in place or to
use other fall protection. In general, the jobsite had fall protection
and oversight at the time of the accident.

The Secretary argues that fall protection was not pre-planned because a
foreman allowed placement of one sub-standard guardrail section. Proof
that a foreman knew a guardrail would not meet OSHA's specifications
does not automatically establish that the company failed to plan for
fall protection, even though this is the limit of the Secretary's
evidence here. In items 2 and 3 the Secretary cites for the guardrail's
substantive defects. Had the guardrail been strong enough to withstand
200 pounds and had it also included a midrail, the Secretary would not
have asserted the failure to pre-plan for fall protection. S. E. Johnson
did "provide and install all fall protection systems," in spite of the
fact that in one instance the fall protection used was inadequate. (/See
N & N Contractors,/ 18 BNA OSHC 2127, 2127-28 (No. 96-0606, 2000) where
failure to enforce compliance with certain safety rules does not
establish or give rise to an inference of a failure to train or instruct.)

Item 1 is vacated.

Item 2: § 1926.502(b)(2)

The Secretary asserts that no midrail or toe board was present on the
section of guardrail in violation of §1926.502(b)(2), which provides:

Midrails, screens, mesh, intermediate vertical members, or equivalent
intermediate structural members shall be installed between the top edge
of the guardrail system and the walking/working surface when there is no
wall or parapet wall at least 21 inches (53 cm) high.



As stated, this part of the jobsite originally had full guardrails. By
September 16, 2000, the section of guardrail had been removed from the
lower platform, leaving an open edge measuring 8 feet, 6 inches. Three
employees worked on the platform and passed within 2 feet of the open
edge and were exposed to falls of 17 feet. When apprentice Cheyenne
Fowler replaced the guardrail at Master's direction, he put up only one
railing, by wiring it in place 40 inches above the platform floor (Tr.
29). After Ripberger fell, S. E. Johnson's safety specialist Puse
interviewed Fowler about the accident. The interview included the
following exchange (Exh C-4) (emphasis and parenthetical in the original):

*10. Why did you put [the 2-by 4] up?*

So we wouldn't get in trouble with the safety man (/Jason Holton/).
Kevin Masters said the 2x4 was better than nothing and we were in a big
hurry to get the area wrecked out.

*11. How was the area left when the crew finished working?*	

We left the 2x4 in place that was all.

During the time that only a top railing was in place on September 16 and
18, 2000, various S. E. Johnson employees, and the employees of at least
one subcontractor, accessed the platform and worked within the
platform's relatively close space.^(2) <#N_2_>S. E. Johnson states that
its employees were not exposed to the hazard because Masters told them
to stay at least 7 feet away from the edge. Regardless of how far from
the edge S. E. Johnson wished its employees to stay, the work directed
otherwise. Employees came within at least 2 feet of the railing just to
access the platform.

Masters knew that an 8 foot, 6-inch edge of the platform was not guarded
with a midrail. Not only did he comment that the top rail was "better
than nothing," but the area was in plain sight during the two days that
the employees worked on the platform. The actual or constructive
knowledge of an employer's supervisory personnel can be imputed to an
employer, unless the employer establishes some substantial grounds for
not imputing it. /Ormet Corp./ 14 BNA OSHC 2134, 2137 (No. 85-531,
1991), citing /Capital City Excavating Co./, 712 F.2d 1008, 1010 (6th
Cir. 1983). Master's knowledge is properly imputed to S. E. Johnson. A
guardrail without the required midrail exposed employees to falling
between the top rail and floor, 17 feet to the ground below. A fall from
that distance could result in death, or as it did here, in serious
bodily injury.

The Secretary has established a violation of § 1926.502(b)(2).

Item 3: § 1926.502(b)(3)

The Secretary contends that the 8 foot, 6-inch top rail was incapable of
withstanding 200 pounds of force in violation of § 1926.502(b)(3). The
standard provides:

Guardrail systems shall be capable of withstanding, without failure, a
force of at least 200 pounds (890 N) applied within 2 inches (5.1 cm) of
the top edge, in any outward or downward direction, at any point along
the top edge.



Ripberger weighed 150 pounds, and he was wearing an additional 20 pounds
of tools (Tr. 100). At the hearing S. E. Johnson's attorney
cross-examined Ripberger regarding his fall (Tr. 105):

Q. There was no reason for you to be leaning on the guardrail or the
railboard, correct?



A. Well, when you go to pull that machine off, you've got to kind of
brush up against it or lean on it or whatever to help pull the machine
off. You don't really have enough room down there to work on a lot of
jobs like that.



Q. I appreciate they were in tight spaces. However, as I recall your
testimony, you were waiting for someone else to finish a task?



A. Right, so I could help pull the machine off.



Q. Was anyone else leaning with you?



A. Yes.



Neither party followed up on the last question and answer. S. E. Johnson
now suggests that the above answer establishes that Ripberger and
another employee were both leaning against the railing at the same time,
thus applying a force of in excess of 200 pounds to the top rail. The
undersigned cannot accept that argument. Only Ripberger fell. If two
individuals were leaning against the railing, it is assumed both could
have fallen. Ripberger's testimony was noticeably uncertain and confused
about occurrences immediately before or after the accident. Employees
observed that Ripberger leaned or sat on the railing, and they reported
this fact in their interviews. However, no employee asserted that anyone
other than Ripberger rested on the railing. Nor was it previously S. E.
Johnson's position that they had. Finally, the time period in which any
other employee may have applied weight to the railing is unclear. It is
determined that Ripberger alone leaned or sat on the upper guardrail at
the time he fell and that the force he applied to the top rail was less
than 200 pounds.

S. E. Johnson also argues that it had no reason to suspect that the top
rail would not support 200 pounds. S. E. Johnson's employee Jeremy
Sergeant demonstrated to Medlock how the rail was wired (Tr. 27).
Medlock concluded that the wire connections of the top rail could not
hold the necessary weight without slipping. Although Medlock admitted
that it could be possible to wire in a railing with sufficient support,
he would not have approved the method used in this case. Paran's on-site
safety specialist Jasen Holton investigated the accident shortly after
it occurred. He noted that the wire used to tie up the railing was "not
a very large gauge" (Tr. 84). If Holton had seen how the railing was
attached before the accident, he would not have allowed it. Holton did
not consider the tie wire safe or capable of holding 200 pounds without
breaking or slipping (Tr. 84-86). Even S. E. Johnson's witness, safety
consultant Michelle Paraniuk of Paran, stated that had she seen the
wired top rail on the jobsite, she would have made the crew correct and
"nail it to support a person's load" (Tr. 168).

Foreman Kevin Masters may have had another motive for approving a
tie-wired top rail. It could be done quickly. Masters observed how the
railing was wired to the columns. Observing it, Masters told his crew to
stay at least 7 feet away from the guardrail. The following portion of
the interview by S. E. Johnson's safety specialist Puse with Cheyenne
Fowler supports a conclusion that speed and avoiding problems with
safety personnel played a more important role in how the railing was
attached than a concern for the safety of the railing (Exh. C-4)
(emphasis and parenthetical in the original):

*13. Did you ever see the safety guy Jason, that night?*

No. (/Cheyenne, asked if Kevin would be told what he said and I told him
no.)/ He then proceeded to tell me that Kevin and the other foreman on
that shift were trying to hide . . . their crew from the safety man. It
seemed like a big deal to get the work done and the foreman didn't want
Jason to know where Cheyenne and the rest of his crew were working.



At the hearing Masters denied telling employees to avoid the safety
personnel. His demeanor during this part of his testimony did not lend
credence to the statement. However, it is unnecessary to determined
whether Masters sought to hide his crew from the safety personnel. The
Secretary need not prove that Masters had reached the specific
conclusion that the railing would not support 200 pounds. The Secretary
has shown that Masters undoubtedly had knowledge of the cited condition
(the tie-wired guardrail). The manner in which the railing was attached
should reasonably have prompted further inquiry as to the amount of
force it could withstand. Failure to have a properly secured top rail
could result in a fall of 17 feet, which would most likely cause severe
injuries or death.

The Secretary has established a violation of § 1926.502(b)(3). The
burden now shifts to S. E. Johnson to establish its defense of employee
misconduct.

Employee Misconduct

In order to negate a violation on the grounds of employee misconduct,
the employer must show that:(l) it established work rules designed to
prevent the specific violation from occurring; (2) the work rules were
adequately communicated to its employees; and (3) it took steps to
discover violations of those rules; and (4) it effectively enforced the
rules when violations were discovered. /E.g., Gary Concrete Prods,
Inc.,/ 15 BNA OSHC 1051, 1055 (No. 86-1087, 1991).**



**S. E. Johnson asserts that even if a violation occurred, it was the
result of the misconduct of Timothy Ripberger in sitting or leaning on
the top rail. As stated, S. E. Johnson incorrectly places the focus of
its defense on Ripberger's actions, rather than on the failure of its
employees to properly construct the guardrail or to remedy its defects
during the period the employees were exposed to the fall hazard.
Additionally, its defense addresses the conduct of a subcontractor's
employee, who did not have the same safety instruction as provided to
its own employees. To be considered effective a work rule most be
"designed to prevent the cited violation,"/Gary Concrete, supra./ S. E.
Johnson did not present evidence that it has a work rule addressing the
proper construction of a guardrail. S. E. Johnson did not reprimand any
of its employees for tie-wiring a single top rail, in lieu of properly
constructing it with a secure top rail and a midrail (152). The employee
misconduct defense is rejected.

Items 2 and 3 are affirmed as serious.

*Penalty Determination*

The Commission is the final arbiter of penalties in all contested cases.
In determining an appropriate penalty, the Commission is required to
consider the size of the employer's business, the employer's good faith,
and its past history of violations of the Act. Gravity is the principal
factor to be considered. /Trinity Indus., /15 BNA OSHC 1481, 1483 (No.
88-691, 1992).

S. E. Johnson employed 1,500 employees at the time of the accident. It
had been cited for past serious violations within the previous three
years (Tr. 35-36). No credit is allowed for size or past history. The
Secretary recommended that no credit be afforded for good faith because
of the high gravity of the violations. Nevertheless, some credit for
good faith is appropriate. S. E. Johnson has an ongoing safety program
and had a full-time safety specialist. S. E. Johnson's safety personnel
conducted a thorough investigation of the fall, which further evidences
the company's concern for safety. It took photographs and statements
from employees, providing them to OSHA during the investigation.

Gravity considerations include the fact that three and then six
employees worked near the inadequate guardrail for an extended period.
Their work placed them in close proximity to the hazardous condition.
The fall distance was critical, with an assumption that falls of 17 feet
would result in serious injury or death; the gravity of the violations
are high. The faulty top rail has a somewhat higher gravity because
employees relied upon the safety of something which was, in fact,
unsafe. Based on the above, a penalty of $3,500 is assessed for failure
to have a midrail, and a penalty of $4,000 is assessed for failure to
have a top rail which could withstand 200 pounds of force.

*FINDINGS OF FACT AND CONCLUSIONS OF LAW*

The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Rule 52(a), Fed. R. Civ.P.

*ORDER*

Based on the foregoing decision, it is ORDERED:

  * Item 1 alleging a violation of § 1926.502(a)(2) is vacated;
  * Item 2 alleging a violation of § 1926.502(b)(2) is affirmed and a
    penalty of $3,500 is assessed; and
  * Item 3 alleging a violation of § 1926.502(b)(3) is affirmed and a
    penalty of $4,000 is assessed.


/s/

NANCY J. SPIES

Judge



Date: May 20, 2002

1. Although S. E. Johnson originally asserted that Ripberger returned to
rest against the railing after having been previously warned away, it
presented no credible evidence that any warning was given. In any event,
S. E. Johnson rightly contends that Ripberger followed a very unsafe
practice in resting against a guardrail and in being less than fully
alert on the jobsite. Ripberger's actions or the accident itself,
however, are not the focus of the case. The accident may have prompted
OSHA's limited investigation, but what is at issue here is the existence
of a sub-standard guardrail and S. E. Johnson's knowledge of the condition.

2. The ladder was 18 to 24 inches from the edge of the lower platform
(Tr. 29). The edge of the platform to the face of the wall measured 12
feet, 12 inches. At least four or five bundles of cables needed to be
post-tensioned. The ram, which weighed over 400 pounds and encompassed 2
feet along the platform, had to be placed on each bundle in turn.
According to Medlock, the usable work space on the lower platform was
reduced to 8 feet, 6 inches by approximately 10 feet. Some 6 employees
worked on the platform, on which tools and equipment were also placed.
By necessity, employees worked within the zone of danger of the
inadequately guarded edge (Tr. 15, 98, 160-161).