LTV Steel Company, Inc., United Steel Workers of America, District 1, Local Union 188, Authorized Employee Representative

Plain-English summary

LTV reduced one of its two steel-mill infirmaries to daytime hours after constructing a bridge connecting the mill's east and west sides. OSHA alleged that west-side employees lacked a nearby medical facility and adequately trained first-aid personnel during evening hours. The judge found that the Secretary did not establish the distance or emergency travel time from the finishing department to nearby hospitals, fire stations, or emergency medical posts. Average response-time data and a non-emergency timed drive did not reliably show how quickly responders would arrive for a life-threatening call. Because OSHA did not prove that no infirmary, clinic, or hospital was in near proximity, the standard did not apply and the citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.151(b)
• Outcome: Serious first-aid coverage citation vacated.
• Key point: OSHA must establish that no medical facility is in near proximity before the standard requires adequately trained first-aid personnel at the workplace.

Full text (OSHRC public release)

                      UNITED STATES OF AMERICA
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC DOCKET NO. 01-0600
:
LTV STEEL COMPANY, INC., :
Respondent. :
UNITED STEEL WORKERS OF :
AMERICA, DISTRICT 1, :
LOCAL UNION 188, :
Authorized Employee :
Representative. :

Appearances: Mary Bradley, Esquire
Mary Anne Garvey, Esquire
U.S. Department of Labor
Cleveland, Ohio
For the Complainant

                   Mark D. Katz, Esquire
                   Ulmer & Berne, LLP
                   Cleveland, Ohio
                          For the Respondent

                   Rick J. Dvorak, Chairman
                   USWA District 1, Local Union 188
                   Parma, Ohio
                           For the Authorized Employee Representative

Before: Michael H. Schoenfeld
Administrative Law Judge

                               DECISION AND ORDER

Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10 (c ) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
conducted an inspection of the steel mill of Respondent LTV Steel Company, Inc. (“LTV”) on
January 10, 2001, pursuant to a complaint that one of LTV’s two on-site medical dispensaries had
ceased to provide 24-hour service to employees. As a result of the inspection, OSHA issued to LTV
a citation alleging a violation of the terms of 29 C.F.R. § 1910.151(b).1 LTV timely contested the
citation, a complaint and answer were filed, and the hearing in this matter was held in Cleveland,
Ohio. All parties have filed post-hearing briefs.
Jurisdiction
At all times relevant to this proceeding, Respondent LTV operated a steel mill on Jennings
Road in Cleveland, Ohio. The Secretary asserts and Respondent does not deny that LTV is an
employer engaged in interstate commerce, and I so find. Accordingly, I conclude that the
Commission has jurisdiction over the parties and the subject matter of this case.
Background
The steel mill LTV operated was a complex of numerous buildings separated into east and
west sections by the Cuyahoga River. Prior to December 2000, LTV operated two around-the-clock
medical infirmaries, one on each side of the river. Each was staffed by a combination of physicians,
nurses and assistants, with at least one paramedic present at all times. Following the construction of
a bridge over the river, LTV restricted the operation of the west side infirmary to 8:00 a.m. to 4:00
p.m. daily. The east side infirmary, however, continued to operate on a 24-hour basis, and, after the
schedule change, the east side infirmary was to provide night-time medical services to the west side
of the facility. (Tr. 179, 218-219, 262-264, 332-334, Exhs. R-1, C-5).
Outside the LTV steel mill, but within three miles of its west side, were two hospitals, three
City of Cleveland emergency medical service posts and two Cleveland fire stations. (Exh. R-1). The
Secretary contends that the No. 2 Finishing Department (“the Finishing Department”), which was
located on the west side of the steel mill, was not in “near proximity” to an off-site infirmary, clinic
or hospital in the evening hours and that there were no persons present who were adequately trained
in first aid.
Discussion
Citation 1, Item 1, the only citation in this case, alleges a serious violation of the terms of 29
C.F.R. § 1910.151(b). The standard requires as follows:

    1
     OSHA simultaneously issued to LTV a citation that resulted in another case, Secretary of

Labor v. LTV Steel Company, Inc., Docket No. 01-0599. The two cases were consolidated but were
severed following the hearing. My decisions in both cases are being issued today.

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In the absence of an infirmary, clinic, or hospital in near proximity to
the workplace which is used for the treatment of all injured
employees, a person or persons shall be adequately trained to render
first aid.

    It is clear that, under the terms of the standard, there is no requirement for an employer to

take action to ensure that a person at the workplace is trained to render first aid unless and until it
is shown that there is no infirmary, clinic or hospital in “near proximity” to the workplace. Here, I
find that the Secretary did not present sufficient evidence to establish that the Finishing Department
was not in near proximity to an appropriate medical care facility. Limiting the operations at the west
side infirmary to the day shift hours has not, on this record, been shown to have been the tenebrific
event portrayed by the union. More importantly, the Secretary has failed to show that the standard
applies.2
The Secretary asserts and LTV does not dispute that employees in the Finishing Department
performed work involving exposure to serious or even life-threatening injuries. (Tr. 181-194). The
Secretary failed, however, to present evidence establishing the geographical distance from the
Finishing Department to any of the medical care facilities in the vicinity, even though one of the
hospitals, Metro Health, could be seen from the west side of the mill. (Tr. 350-351, Exh. R-8). There
was also no reliable evidence establishing how long it would take an emergency vehicle to reach the
mill in the event of a life-threatening injury. In the absence of such evidence, the Secretary has failed
to show that there was no clinic, infirmary or hospital in near proximity to the workplace.3
In support of the citation, the Secretary relied on (1) a summary of the average response times
of the Cleveland EMS (“CEMS”) to calls from LTV over a three-year period, and (2) a “timed run”

    2
    For the basic elements of the Secretary’s prima facie case, see Astra Pharmaceutical

Products, Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981).
3
As indicated in my denial of the parties’ pre-hearing motions for summary judgment, the
issue of whether a workplace is in “near proximity” to a medical care facility requires an analysis
of the facts of each case. The standard does not impose an inflexible time period, such as a per se
three to four minute response time. See Brennan v. OSHRC, 505 F.2d 869 (10th Cir. 1974). See also
CMC Elec., Inc. v. OSHA, 221 F.3d 861 (6th Cir. 2000), where the court applied similar reasoning
to determine what constituted the “prompt medical attention” required under construction safety
standard 29 C.F.R. § 1925.50(b). Material facts under Brennan and CMC include such
considerations as geographical distance, travel distance, travel time and traffic.

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from Metro Health to the LTV gate made by Rick Dvorak of the Union and two LTV safety
engineers. As to (2), the timed run took 4 minutes, 13 seconds. (Exhs. C-3, C-4). The evidence
demonstrated that the run was done in a non-emergency vehicle, sometime between 8:00 a.m. and
10:00 a.m., that the vehicle traveled, at its fastest speed, between 25-30 miler per hour on the
roadway and 50-55 mile per hour on the freeway, and that two stops for red lights were made. The
evidence also demonstrated that the time the vehicle was actually stopped at the two red lights was
subtracted from the total, but there was no evidence about whether deceleration for stops or
acceleration after stops was taken into account. (Tr. 211-215, 239). Regardless, an ambulance may
travel with its emergency lights flashing and its sirens operating. An ambulance may also exceed the
speed limit, ignore traffic controls if safe, and pass other vehicles, which must allow it right-of-way.
I therefore find that the timed run was not probative evidence of the amount of time it would take
an emergency vehicle responding to a high-priority call to reach the steel mill.
As to (1), the summary reported the average response time of the CEMS for over 200 calls
for the years 1999, 2000, and 2001. The averages for these years ranged from 7 minutes, 5 seconds
to 8 minutes, 46 seconds. (Tr. 161-163, Exhs. C-3, C-4). The summary, however, had little or no
probative value in regard to “near proximity” as it showed only the average response times for all
calls for each year. It did not distinguish or identify the response times for the more serious injuries,
even though CEMS prioritizes calls and responds more quickly to life-threatening situations. Further,
there was evidence that the highest-priority, life-threatening calls were made to the Cleveland Fire
Department as well as to CEMS and that in half of those cases, the Fire Department responded more
quickly to calls. (Tr. 157-158, Exh. C-4). The Secretary submitted no evidence of the response times
of the Cleveland Fire Department or of any of the other medical facilities in the area.4 (Tr. 157).
The Secretary also argues that LTV’s procedures delayed the response time for emergency
personnel. The only direct evidence submitted on this point was Dvorak’s testimony that the

    4
      The Secretary’s post-hearing brief asserts that the CEMS administrator testified that

“priority calls have only a slightly better response time than non-priority calls.” (p.5). In fact, the
CEMS administrator testified that the response times for life-threatening injures were “slightly
higher.” (Tr. 158). The Secretary made no effort at the hearing to quantify what the administrator
meant, and I decline to adopt the implied assumption that the CEMS response times for life-
threatening calls were therefore within or even close to the averages indicated in the summary .

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procedures added ten to fifteen minutes. (Tr. 205-206). His testimony on this issue is not accorded
significant weight, however, because it was in contradiction to the CEMS average response time
summary. (Exh. C-4). Further, a reasonable inference may be made that many of the procedures the
Secretary complains about, such as requiring that the security guard escort the ambulance to where
it was needed or requiring that one employee station himself outside the building so as to direct the
emergency personnel directly to where the injured person is located, would serve in some cases to
shorten, rather than delay, the response time of the emergency personnel. (Tr. 205-206). I therefore
find that the Secretary did not establish that the Finishing Department was not in “near proximity”
to an appropriate medical care facility. Accordingly, I conclude that the standard does not apply. This
citation is vacated.5
FINDINGS OF FACT
All findings of fact necessary for a determination of all relevant issues have been made
above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with
this decision are hereby denied.
CONCLUSIONS OF LAW
1. Respondent was, at all times pertinent hereto, an employer within the meaning of the Act.
2. The Commission has jurisdiction over the parties and the subject matter of this case.
3. Respondent was not in violation of the terms of 29 C.F.R. §1910.151(b).

                                          ORDER
    1. Citation 1, Item 1 is VACATED.

                                                                   /s/

                                                   Michael H. Schoenfeld
                                                   Administrative Law Judge

Dated: February 11, 2002
Washington, D.C.

    5
       All three parties raise arguments relating to whether the terms of the standard were

violated. I decline to address those arguments as I have concluded that the standard does not apply
to this case.

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