Kone, Inc.

Plain-English summary

A Kone apprentice technician was found dead at the bottom of an elevator shaft after being assigned to clean and paint the tops of two elevator cars. The judge found that working on a stationary car top exposed the technician to a 30-foot fall through openings at the back and side, and that a harness and lanyard could have been used without creating an infeasible or greater hazard. He affirmed the personal-protective-equipment item as serious because Kone knew its policy did not require fall protection for this work. The separate machine-guarding item concerning the adjacent moving elevator was vacated because the judge found the general machine-guarding standard did not apply to this elevator configuration and entry into the adjacent travelway was not reasonably predictable. A $6,300 penalty was assessed for the affirmed item.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.132(a) and 1910.212(a)(1)
• Outcome: The fall-protection item was affirmed as serious with a $6,300 penalty, and the adjacent-elevator guarding item was vacated.
• Key point: Personal fall protection was feasible on the stationary car top even though the elevator industry generally did not use it for maintenance work.

Full text (OSHRC public release)

               UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 07-1664
Kone, Inc.,
Respondent.

Appearances:

      Amy R. W alker, E squire, Office o f the Solicitor, U .S. Department of Lab or, Atlanta, G eorgia
             For Com plainant

      Sergio R. Casiano, Jr., Esquire, Miller, Kagan, Rodriguez & Silver, P.L., Coral Gables, Florida
              For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                        DECISION AND ORDER

      Kone Inc. (Kone) is an international elevator company. On March 22, 2007, an elevator

technician who was assigned to paint the top of two elevators at a condominium complex in Naples,
Florida, was found dead at the bottom of the elevator shaft. As a result of the fatality, Occupational
Safety and Health Administration (OSHA) compliance officer Anthony Compos investigated the
accident and recommended a serious citation for alleged violations of 29 C.F.R. § 1910.132(d)(1)
and 29 C.F.R. § 1910.147(c)(4)(i) or in the alternative § 5(a)(1) of the Occupational Safety and
Health Act (Act). The serious citation was issued to Kone on September 19, 2007. Kone timely
contested the citation.
On April 9, 2008, the Secretary amended the citation to allege instead serious violations of
29 C.F.R. § 1910.132(a) (item 1) for failing to utilize fall protection when an employee is painting
the top of an elevator car, and 29 C.F.R. § 1910.212(a)(1) (item 2) for failing to protect by a guard

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the employee from an adjacent moving elevator car. The citation proposes a penalty of $6,300.00
for each alleged violation.
The hearing on the amended citation was held on May 14-15, 2008 in Naples, Florida.
Jurisdiction and coverage were stipulated. The parties have filed post hearing briefs.
Kone denies the alleged violations and asserts the cited standards are not applicable to the
elevator industry during maintenance work. As to the fall protection requirement, Kone also asserts
greater hazard and infeasibility as affirmative defenses. With regard to the lack of a guard, Kone
claims employee misconduct.
For the reasons discussed, the fall protection violation is affirmed and a penalty of $6,300.00
is assessed. The alleged lack of a guard violation is vacated.
The Inspection
Kone is an international elevator company which manufactures, installs, and services
elevators. Kone is one of the four largest elevator companies with offices throughout the United
States. Kone employs approximately 4,000 employees internationally (Tr. 94, 269, 409).
In its Naples, Florida office, James Houlihan, a certified elevator technician, has been
employed by Kone for 25 years. Houlihan is responsible for servicing and repairing approximately
160 elevator accounts including the elevators at the Gulf Breeze Condominiums. The elevators were
manufactured and installed at the Gulf Breeze by Montgomery Elevator Company in the early 1990s.
Montgomery Elevator was subsequently purchased by Kone who has continued servicing the
elevators (Tr. 238, 285, 333, 351, 366).
Building A at the Gulf Breeze is a twelve-story residential building with two elevators
sharing a single shaft. The condominium’s first floor is referred to as the lobby and succeeding
floors are numbered 1 through 11. The two elevators are designated as elevators #1 and #2 (left and
right as facing the elevators) (Exhs. C-3, R-2; Tr. 37, 39).
As overhead traction elevators, the cars are suspended by wire cables that attach to the cross­
head beams bisecting the top of each elevator car and run into the machine room above the elevator
shaft, over traction sheaves, and down to counterweights that move up and down the shaft behind
the elevator cars. The cars move on tracks in the elevator shaft which are located on either side of
each car (Exh. C-5; Tr. 239, 242-243).

                                              2

The top of each elevator car is approximately 71 inches, front to back, and 72 inches, side
to side. Between the elevator cars, in the center of the shaft, are divider beams that are 5 inches wide
and located at each level of the condominium. The distance from the side of one elevator car to the
adjacent elevator travelway is less than 14 inches (a gap of 8 inches between the car and the 5-inch
divider beam). The distance between the back edge of the elevator car to the back wall of the shaft
is at least 40 inches (Exh. C-7; Tr. 85, 266-267).
On March 22, 2007, apprentice technician Dennis McAlexander who had been employed by
Kone for less than one year was assigned by Houlihan to clean and paint the tops of the two elevators
in Building A. McAlexander met Houlihan at the building at approximately 7:00 a.m. Houlihan had
not previously worked with McAlexander and did not know his experience (Tr. 64-66, 88, 336-337,
375).
Houlihan instructed McAlexander how to deactivate each elevator car and how to clean and
paint the tops of the cars. Houlihan then deactivated elevator #2 on the second level so that
McAlexander could access the roof of the elevator car from the third level. The third level is
approximately 30 feet from the bottom of the elevator shaft. The third level elevator doors were left
open, secured, and barricaded. Elevator car #1 continued its normal operation for the residents.
After giving McAlexander directions and setting up the worksite, Houlihan returned to his office,
leaving McAlexander to work alone. Consistent with company policy, McAlexander was not
utilizing personal fall protection and there was no guarding between the two elevators (Tr. 90,
337-338).
At 8:40 a.m., Houlihan was notified that both elevators in Building A were out of service.
Houlihan returned to the condominium at 9:00 a.m., where he found the body of McAlexander at the
bottom of the shaft. The Collier County Medical Examiner concluded that the cause of death was
“multiple blunt force injuries” sustained from contact with an elevator and subsequent fall. The top
of elevator #2 had been painted and returned to service. Elevator #1 had been deactivated, the doors
to the elevator were open on the third level and the painting materials had been placed on top of the
elevator (Exh. C-11; Tr. 339-341).
Kone theorizes that McAlexander was struck when he attempted to move from the top of
elevator #1, back to the top of elevator #2 through the hoistway, and not from the landing (Kone

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Brief, p. 2). Company policy instructs technicians to exit and enter the elevator top through the
elevator doors on each landing. According to Kone, McAlexander was struck in the groin area by
the retaining cam attached to elevator #2 as it ascended. As a result of the impact, McAlexander fell
into the shaft (Tr. 133-137, 352, 354).
On March 23, 2007, OSHA compliance officer Campos arrived at Building A where he
observed both elevators and spoke to several Kone employees. Based on Campos’ inspection,
OSHA issued the serious citation to Kone on September 19, 2007. Although the factual allegations
remained unchanged, the Secretary amended the standards cited to allege violations of 29 C.F.R.
§ 1910.132(a) (item 1) and 29 C.F.R. § 1910.212(a)(1) (item 2).
Discussion
The Secretary has the burden of proving a violation.1 Kone asserts § 1910.132(a) and
§ 1910.212(a)(1) are not applicable to Kone’s elevator maintenance work including painting the tops
of cars. If found applicable, Kone asserts as affirmative defenses, greater hazard and infeasibility
as to the alleged violation of § 1910.132(a) and unpreventable employee misconduct as to the alleged
violation of § 1910.212(a)(1).
Item 1 - Alleged Violation of § 1910.132(a)
The citation, as amended, alleges Kone failed to require employees to utilize fall protection
when exposed to a fall hazard while painting the tops of elevators. Section 1910.132(a) provides:
Application. Protective equipment, including personal protective
equipment for eyes, face, head, and extremities, protective clothing,
respiratory devices, and protective shields and barriers, shall be
provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards of processes or
environment, chemical hazards, radiological hazards, or mechanical
irritants encountered in a manner capable of causing injury or
impairment in the function of any part of the body through
absorption, inhalation or physical contact.

     1
       In order to establish a violation of an OSH A standard, the Secretary has the burden of proving: (a) the

app licability of the cited standard, (b) the em ployer’s nonc omp liance w ith the stand ard’s terms, (c) an em ployee’s
access to the violative conditions, and (d) the employer’s actual or constructive knowledge of an unsafe condition.
Atlan tic Battery Co., 16 B NA O SHC 2131, 21 38 (No . 90-1747, 199 4).

                                                         4

The top of each elevator car at the Gulf Breeze is 71 inches, front to back, and 72 inches, side
to side. The surface is essentially flat. There are no fall hazards on the side of the elevator facing
the door or the side next to the wall because of the narrowness of the space. However, from the back
edge of the elevator to the back wall, there is an open space of approximately 40 inches. On the side
of the elevator in the hoistway, there is less than 14 inches (gap of 8 inches and the 5-inch divider
beam at each level) to the adjacent elevator travelway. It is approximately 30 feet from the top of
the elevator car when stationed on the third level to the bottom of the shaft. There are no guardrails
or other fall protections around the top of the elevator car to prevent falls from the back or side.
Kone does not require employees to utilize personal fall protection while painting the tops of
elevators.
Section 1910.132(a), a general industry standard, is broadly worded and of general
application governing numerous possible hazardous conditions and types of injury. To afford notice
to the employer, the Secretary must show “either that the employer had actual notice of a need for
protective equipment or that a reasonable person familiar with the circumstances surrounding the
hazardous condition would recognize that such a hazard exists.” Weirton Steel Corp., 20 BNA
OSHC 1255, 1264 (No. 98-0701, 2003).
Application of § 1910.132(a)
Since 1982, the Review Commission has considered §1910.132(a) broad enough to apply to
fall hazards and that fall protection such as a safety harness was a form of personal protective
equipment. Bethlehem Steel Corp., 10 BNA OSHC 1470, 1472 (No. 79-310, 1982);2 Hackney Inc.,
16 BNA OSHC 1806, 1807-08 (No. 91-2409, 1994); Cleveland Electric Illuminating Co., 16 BNA
OSHC 2091, 2093 (No. 91-2198, 1994). Also see, OSHA directive, STD 01-01-013, “Fall
Protection in General Industry” (Exh. C-12).
Section 1910.132(a) applies to the work performed by McAlexander on March 22, 2007.
Kone’s argument that the standard is inapplicable to elevators manufactured prior to the year 2000,
is misplaced. The guidelines as described by Kone do not require elevators manufactured prior

       2
           The citation was vacated based on the lack of fair notice, not beca use §191 0.13 2(a) did no t apply to fall

hazards.

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to 2000 to have guardrails unless the units are remodeled (Tr. 286-287).3 Section 1910.132(a)
involves the use of personal fall protection such as safety harnesses and lanyards. Guardrails are not
considered personal protective equipment.
Terms of § 1910.132(a) were Violated
Section 1910.132(a) requires the use of personal protective equipment if exposed to a hazard.
It is undisputed McAlexander was not utilizing personal fall protection while cleaning and painting
the tops of the two elevators, 30 feet above the bottom of the shaft. Fall protection was not required
by Kone (Tr. 344, 382-383).
Employee Exposure
To establish an employee’s exposure to a hazard, the Secretary must show it is reasonably
predictable either by operational necessity or otherwise (including inadvertence), that the employee
has been, is, or will be in the zone of danger. Fabricated Metal Products Inc., 18 BNA OSHC 1072,
1074 (No. 93-1853, 1997). Also, under § 1910.132(a), the Secretary must show there is a significant
risk of harm due to a hazard requiring additional protective equipment. See Anoplate Corp., 12 BNA
OSHC 1678, 1681-1682 (No. 80-4109, 1986).
In this case, exposure is established based on McAlexander’s work on top of an elevator
approximately 30 feet above the bottom of the elevator shaft without personal fall protection
(Tr. 90). The 40-inch opening at the back of the elevator and the opening in adjacent elevator’s
travelway were large enough for an employee to fall through if not utilizing personal fall protection
(Tr. 85-86, 266). McAlexander’s painting required him to work at the elevator’s back and side
edges. The Elevator Industry Field Employees, Safety Handbook used by Kone requires personal
fall protection any time an employee works within 6 feet of an open hoistway or a 12-inch or greater
opening into the hoistway (Exh. C-15, Sections 3.6, 4, 18.9). Under the section entitled “Safety
precautions when working on car tops,” it specifically provides that “when a fall hazard exists, fall
protection shall be used (See Section 4).” (Exh. C-15, Section 8.1.2(k)).
McAlexander’s working conditions exacerbated the risk of a fall hazard. To move from the
back to the front of the elevator, he was required to climb over the cross beam that bisected the top.

     3
      Kone’s installed guardrails after the accident at the request of the County inspector, not because it was

required (Tr. 371, 382 ).

                                                       6

To paint under the cross beam and around the various protrusions, McAlexander would have to bend,
stoop and reach. These conditions would have forced McAlexander into awkward positions,
affecting his balance. Also, the top presented tripping hazards from electrical cables and various
protrusions (Exhs. C-6, C-7; Tr. 83, 98).
An employee’s exposure on top of the elevator is recurring. Houlihan, the technician
primarily responsible for maintaining the elevators at the Gulf Breeze, testified he accessed the tops
of the elevators once every other month. Kone’s service records corroborate that schedule (Exhs.
C-9, C-10; Tr. 360).
Kone’s argument that the Secretary failed to demonstrate how the use of personal fall
protective equipment would have prevented the accident, is irrelevant. The citation, here, alleges
the lack of personal fall protection while painting the elevator’s top. The allegation does not relate
to Kone’s theory that McAlexander, for unknown reasons, may have moved through the hoistway
from one elevator top to the other elevator top is in violation of company policy. The issue is not
whether the accident in this case could have been prevented with the use of personal fall protective
equipment but whether the employee while painting the elevator top was exposed to a fall hazard
of 30 feet. Such a fall hazard could have been eliminated or reduced by personal fall protection.
Kone’s Knowledge
In order to establish employer knowledge, the Secretary must show the employer knew, or
with the exercise of reasonable diligence could have known of a hazardous condition. Dun Par Engd
Form Co.,12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). The focus of § 1910.132(a)(1) is on
a recognition of an unsafe condition, not the need for particular personal protective equipment.
Lukens Steel Co., 10 BNA OSHC 1115, 1123 (No. 76-1053, 1981). An employer is required to
assess its workplace to determine if such hazards are present which necessitate the use of personal
protective equipment. Section 1910.132(d)(1)
Kone’s knowledge is imputed by Houlihan who acted as McAlexander’s supervisor. Under
section 1.2 of Kone’s Safety Handbook, the supervising technician is responsible for safety on the
job (Exh. C-15, Section 1.2). Houlihan was aware of McAlexander’s work conditions. He was at
the worksite, gave detailed work instructions and helped McAlexander set up the work. Houlihan

                                              7

knew McAlexander was not wearing fall protection in accordance with company policy (Tr. 337­
338, 344, 366).
Kone’s argument regarding industry custom and practice is rejected. Kone claims fall
protection is not utilized in the elevator industry while performing maintenance due to the danger
of moving parts. Although the Commission may look to industry practice in determining whether
there is a hazard, industry practice is not dispositive if a reasonable person familiar with the
circumstances would perceive that a hazard exists.4 Cleveland Electric Illuminating Co., 16 BNA
OSHC supra at 2093.
A reasonable person familiar with the circumstances in this case would have recognized the
existence of a fall hazard of 30 feet while painting the elevator tops without personal fall protection.
There was no showing of moving parts. The elevator being painted was stationary and not
operational.
Kone’s reliance on the decision in Bethlehem Steel Corporation, 10 BNA OSHC supra
at 1470, to argue the lack of fair notice that § 1910.132(a) included fall protection hazards was
addressed by the Commission in Hackney Inc., 16 BNA OSHC supra at 1807, fn. 1. As the
Commission noted, the Bethlehem decision provided subsequent employers fair notice of the
standard’s application to fall hazards.
Similarly, the decisions in Otis Elevator Company, 5 BNA OSHC 1429 (No. 13140, 1977)
and Dover Elevator Company, 12 BNA OSHC 1731 (No. 83-1049, 1986) are not relevant to this
case. These decisions involve construction standards (§ 1926.500 and §1926.28) requiring guardrails
and safety belts and are limited to the facts in those cases. Also, the decisions lack precedential
value because either wrote as separate opinions of the Commissioners or was an unreviewed decision
by an administrative law judge.
A violation of § 1910.132(a) is affirmed unless Kone can establish its greater hazard or
infeasibility defenses.

     4
       Although there is som e evidence the four largest elevator com panies do not req uire fall protectio n, there is

also a showing that Otis Elevator does utilize fall protection during maintenance (Tr. 362, 407). The industry
practice evid ence is inconclusive. If industry p ractice was dispositive, it would perm it an entire industry to avoid
liability by maintaining inadequate safety. Farrens Tree Surgeons, Inc., 15 BNA OSH C 1793, 1794 (No. 90-998,
1992).

                                                         8

Greater Hazard Defense
Greater hazard is an affirmative defense. Kone must show (1) the hazard of compliance
exceeded the hazard of noncompliance, (2) alternative means of protecting employees were either
used or not available; and (3) a variance under § 6(d) of the Act was inappropriate. State Sheet Metal
Co., 16 BNA OSHC 1155, 1159 (Nos. 90-1620 & 90-2894, 1993).
Kone argues personal fall protection is not used during maintenance work due to the danger
of moving parts. The concern is the lanyard getting caught and the employee is pulled off the car
top (Tr. 348-349). To lessen the fall hazard, Kone implemented specific procedures regarding how
to enter and exit car tops. McAlexander was aware of these procedures (Exhs. R-6, R-7). Safety
director Miller has never had to sanction an employee for crossing from car top to car top (Tr. 390­
391).
The record shows that a safety harness and lanyard can be used to protect an employee from
the fall hazard on top of the elevator car (Tr. 92, 249-251). The employee could tie off the lanyard
to the steel traction cables suspending the elevator car in the hoistway. Each cable is capable of
holding 22,000 pounds. Kone’s Technician’s Guide instructs employees working on elevator tops
that “when a fall hazard exists, fall protection should be used (Exh. R-3, p. 31).
The risk of the lanyard getting caught in moving parts is not supported by the record. The
elevator upon which McAlexander was painting, was stationary and not operational. Safety director
Miller conceded there was no increased danger using fall protection on top of a stationary elevator
if properly locked and tagged out (Tr. 386). Although McAlexander’s elevator was not locked and
tagged out, Miller conceded the elevator was stopped and would not move during the painting work
(Tr. 385). There was no reason shown why the elevator could not have been locked and tagged out
in this case (Tr. 328). Kone’s safety handbook requires the use of fall protection when an elevator
can be locked and tagged out (Exh. C-15; Tr. 253-254). Regardless, because the elevator was not
operational, there were no moving parts on top of the elevator.
Also, the adjacent elevator which remained operational was not shown to pose a hazard of
moving parts. The adjacent elevator was approximately 21 inches away (two gaps of 8 inches on
either side of the 5-inch divider beam). The danger of entangling the lanyard would be reduced by
this distance and would be eliminated if the employee used a retractable lanyard. When questioned

                                              9

about using a shorter or retractable lanyard to prevent the lanyard from getting caught if the elevator
car moves, Miller had not examined the viability of such methods (Tr. 403-404).
Furthermore, Kone failed to show alternative methods of protecting McAlexander from the
fall hazard could not have been utilized. Although not required, it was feasible for Kone to install
guardrails around the top of the elevator (Tr. 257-259). Houlihan conceded there was sufficient
clearance at the top of the shaft to use guardrails (Tr. 361). The current ASME code for the elevator
maintenance industry requires guardrails where there is a fall hazard (Tr. 258-259). Guardrails were
in fact installed on the elevators in this case. Finally, there is no showing it would have been
inappropriate for Kone to seek a variance.
Kone’s greater hazard defense is rejected.
Infeasibility Defense
For an infeasibility defense, Kone must show (1) the means of compliance with the standard
is infeasible, in that (a) its implementation is technologically or economically infeasible, or (b)
necessary work operation is technologically infeasible after implementation, and (2) there are no
feasible alternative means of protection. V.I.P Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 91­
1167, 1994).
Kone argues the Secretary attempted to circumvent the dangers of lanyards by referencing
retractable lanyards. Kone claims there is no showing the use of retractable lanyards was in fact
feasible for those working on completed elevator tops.
Kone’s argument is rejected. As an affirmative defense, Kone has the burden, not the
Secretary, of establishing infeasibility. During maintenance work such as painting, the elevator is
stationary and inoperable. There are no moving parts on top of the elevator car. While on top of the
elevator, the technician was at least 21 inches from the movement of the adjacent elevator car.
Houlihan has not used retractable lanyards (Tr. 363). Kone’s safety director could not identify any
reason why a retractable lanyard was not suitable for maintenance work on top of a stationary
elevator car.
Kone’s infeasibility defense is rejected.

                                               10

Item 2 - Alleged Violation of § 1910.212(a)(1)
The citation, as amended, alleges Kone failed to protect an employee by guarding from the
adjacent moving elevator. Section 1910.212(a)(1) provides:
Types of guarding. One or more methods of machine guarding shall
be provided to protect the operator and other employees in the
machine area from hazards such as those created by point of
operation, ingoing nip points, rotating parts, flying chips and sparks.
Examples of guarding methods are–barrier guards, two-hand tripping
devices, electronic safety devices, etc.

   According to the Secretary, the moving elevator car created a struck-by hazard to

McAlexander whose work required him to be at the very edge of the other elevator top. The distance
between the two elevators was 21 inches (Tr. 97). The elevators move at approximately 350 feet per
minute (Tr. 244). The Secretary’s expert testified guarding in the form of screen mesh down the
center of the hoistway was feasible. He had observed such guarding in use and said it could be
installed at the Gulf Breeze (Tr. 262-263). The Secretary cites S&G Packaging Co., 19 BNA OSHC
1503, 1506 (No. 98-1107, 2001)(finding exposure when an employee was within one to two feet of
drive rollers) and ConAgra Flour Milling Co., 16 BNA OSHC 1137, 1147 (No. 88-1250,
1993)(finding exposure when an employee was within 1 to 1.5 feet of belts and pulleys).
It is undisputed there was no guarding in the form of a screen mesh separating the two
elevators (Tr. 226-227, Kone Br. p. 19). Kone’s safety director testified the company uses hoistway
screening in construction and modernization work but not during maintenance (Tr. 392-393). Kone
concedes McAlexander was not required to erect a barrier between the elevators (Exh. C-2, requests
8 & 9). McAlexander was instructed to leave the adjacent elevator car fully operational while
painting the top of the other elevator (Tr. 337-338).
Section 1910.212(a)(1) is entitled “General requirements for all machines” and the Review
Commission recognizes this “clearly indicates that the standard is generally applicable according to
its terms to the hazard presented by the moving parts of all types of industrial machinery unless a
more specific machine guarding standard applies.” Ladish Co., 10 BNA OSHC 1235, 1237 (No. 78­
1384, 1981) (violation affirmed when an employee was struck and pinned against a conveyor belt
by the arm of a loader).

                                             11

The Secretary cites Superlite Builders Supply, Inc., 2 BNA OSHC 3020 (No. 5081, 1974)
where an administrative law judge found that §1910.212(a)(1) requires the employer to guard the
nip point created between a descending elevator and a conveyor frame on four automatic block
making machines. In another case, the Commission held the standard “applies to machine hazards
that arise during inspection, cleaning and maintenance.” General Electric Company, 10 BNA OSHC
1687, 1690 (No. 77-4476, 1982) (“in view of the standard’s and the Act’s remedial, protective
purpose, we will not imply an exception to §1910.212(a)(1) that deprives employees of its
protection”).
Section 1910.212(a) does not apply to the elevator work in this case. An elevator is not a
machine as contemplated by the standard. Between the two elevators, there are no point of
operation, ingoing nip points, rotating parts, flying chips and sparks as defined in §1910.211. An
elevator is a people moving transportation system. It is not a machine which cuts, bends, folds,
moves, lifts, manipulates parts or pieces for the manufacture of a product.5
No cases have been found where elevators such as at the Gulf Breeze were deemed
“machinery” for the purposes of §1910.212(a)(1). In Beth Energy-Lackawanna/Coke Div. of
Bethlehem Steel Corp., 14 BNA OSHC 1644, 1646 (NO. 88-2135, 1990), a judge found the “catch
point” allegedly created by the space between the moving door machine and stationary coke oven
battery is not the type of hazard intended to be guarded by the general machine guarding standard.
Section 1910.212(a)(1) is directed at hazards created by the convergence of either parts of
machinery (rotating parts or nip points) or machinery where material is processed (point of
operation). The movement of an elevator car and the retaining cam that struck McAlexander are not
designed to converge at any point. The elevator industry does not require the use of netting or
screens for employees performing routine maintenance to elevator tops of installed and operational
cars.
Employee’s access to the zone of danger; between the two elevators is not reasonably
predictable. The space between the two elevators was approximately 21 inches. Kone has a safety

     5
      The lack of app lication is also shown by the fact that originally, OSHA cited the alleged violation as a

lockout/tagout violation under §191 0.14 7.

                                                      12

program that includes specific rules pertaining to employee safety while working atop elevators.
Section 8.1.1(e) of the Elevator Industry Field Employees Safety Handbook, states that; “When in
a multiple hoistway, never place any part of your body in the runway of an adjacent operational
elevator.” (Exh. C-15). To violate this policy, an employee would need to make a conscious decision
to place himself in the zone of danger. Section 1910.212(a)(1) is inapplicable to elevators and an
employer is not held to guard against hazards created by employee’s conduct which is not reasonably
foreseeable.
A violation of § 1910.212(a)(1) is not established.
Serious Classification
There is a “serious” violation under § 17(k) of the Act when the Secretary establishes there
is a substantial probability of death or serious physical harm that could result from the cited
condition and the employer knew or should have known of the violative condition.
Kone’s violation of § 1910.132(a) is properly classified as serious. A fall hazard of 30 feet
to the bottom of the elevator shaft clearly could cause death or serious injury. Kone did not require
the use of fall protection when painting the tops of elevators and knew McAlexander was exposed
to a fall hazard of 30 feet.
Penalty Consideration
Section 17(j) of the Act requires that when assessing penalties, the Commission must give
“due consideration” to four criteria: (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the prior history of violations. 29 U. S.
§ 666(j). The gravity of the violation is the primary consideration in assessing penalties. Trinity
Industries, Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992).
Kone is a large company with approximately 4,000 employees worldwide. Kone is entitled
to credit for history and good faith based on having no history of prior OSHA violations within the
last three years and having written safety programs and training (Exhs. C-15, R-6, R-7; Tr. 93-94).
A penalty of $6,300.00 is reasonable for serious violation of § 1910.132(a). One employee
was exposed to a fall hazard of 30 feet without fall protection. The duration of the exposure was less
than one hour. The company’s policy and practice was not to require personal fall protection
although its safety handbook seems to provide for such protection.

                                             13

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) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED:
Citation no. 1, item 1, alleged serious violation of § 1910.132(a), is affirmed and a penalty
of $6,300.00 is assessed.
Citation no. 1, item 2, alleged violation of § 1910.1910.212(a)(1), is vacated and no penalty
is assessed.

                                                  /s/
                                                  Ken S. Welsch
                                                  Administrative Law Judge

Date: November 28, 2008

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