American Bridge Company

Plain-English summary

An American Bridge ironworker fell about 70 feet from a steel girder after unhooking his fall-protection lanyard. The judge found constructive knowledge because the foreman was nearby, supervisors had seen workers untied on prior occasions, and the project owner had repeatedly warned American Bridge about fall-protection lapses. The company's employee-misconduct defense failed because it did not prove adequate monitoring or consistent enforcement of its discipline program. The judge did not find willfulness, noting that the worker had been tied off immediately before the fall and that most earlier documented incidents involved lower heights governed by the project's stricter six-foot rule rather than the cited connector standard. The connector item was affirmed as serious with a $6,000 penalty. A partial settlement affirmed two other items with $4,000 in penalties and withdrew the remaining items.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.307(d)(1); 29 C.F.R. § 1926.550(a)(9); 29 C.F.R. § 1918.55(c)(1); 29 C.F.R. § 1926.759(a); 29 C.F.R. § 1926.760(d)(1); 29 C.F.R. § 1926.760(b)(1)
• Outcome: Connector fall item affirmed as serious with $6,000 penalty; settlement affirmed two other items with $4,000 and withdrew three items.
• Key point: Repeated fall-protection lapses can establish constructive knowledge and defeat misconduct even when the evidence does not prove willfulness under the specific cited rule.

Full text (OSHRC public release)

                                          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. 09-0130
American Bridge Company,
Respondent.

Appearances:

    Joseph B. Luckett, Esquire, Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee
            For Complainant

    Mary A nn D iIanni, E squire, Coh en & Grigsby, P .C., Pittsb urgh, Penn sylvania
            For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER
    American Bridge Company (AB) is engaged in the construction of bridges and other

structures throughout the United States. On June 13, 2008, AB was constructing two bridges at the
Kentucky Dam, near Grand Rivers, Kentucky when an ironworker fell approximately 70 feet from
a steel girder. As a result of the fatality, the Occupational Safety and Health Administration
(OSHA) inspected the project and issued serious and willful citations to AB on December 11, 2008.
AB timely contested the citations.
The serious citation alleges AB violated 29 C.F.R. § 1926.307(d)(1) (item 1) for failing to
guard a winch pulley in the barge area; 29 C.F.R. § 1926.550(a)(9) (item 2a) for failing to barricade
the swing radius of the crane; 29 C.F.R. § 1918.55(c)(1) (item 2b) for failing to guard the swing
radius of the crane; 29 C.F.R. § 1926.759(a) (item 3) for failing to secure bolt buckets against
accidental displacement; and 29 C.F.R. § 1926.760(d)(1) (item 4) for failing to supervise the
installation of horizontal lifelines and protect them against being cut or abraded. The serious citation
proposes a total penalty of $20,000.00.

                                                      1

The willful citation alleges AB violated 29 C.F.R. § 1926.760(b)(1) for failing to protect
employees exposed to fall hazards of approximately 70 feet while working without fall protection.
The willful citation proposes a total penalty of $70,000.00.
The hearing was held on September 29-30, 2009 in Paducah, Kentucky. The parties
stipulated jurisdiction and coverage (Tr. 10). The parties also announced settlement of the violations
alleged in the serious citation (Tr. 8). The terms of the parties’ stipulation of partial settlement dated
November 2, 2009 are approved and incorporated into this decision.
The issues remaining in dispute involve the alleged willful violation of §1926.760(b)(1). The
parties filed post hearing briefs.
AB denies the violation of §1926.760(b)(1), the willful classification and the reasonableness
of the proposed penalty. AB also asserts unpreventable employees misconduct because of the
employee’s failure to utilize his fall protection equipment.
As discussed more fully, the violation of § 1926.760(b)(1) is affirmed as serious and a
penalty of $6,000.00 is assessed.
The Inspection
AB’s is engaged in the business of constructing bridges and other structures. AB’s principal
place of business is in Coraopolis, Pennsylvania. AB employs approximately 500 employees. As
a union employer, AB hires craft employees from the local union halls (Tr. 216, 348).
In September 2005, AB contracted as prime contractor with the U.S. Army Corps of
Engineers (Corps) for the Tennessee Valley Authority to perform the construction work on the
“superstructures” project at the Kentucky Lock and Dam located near Grand Rivers, Kentucky. The
project involves routing the existing P & L Railway lines and U.S. Highway 62/641 from crossing
the Kentucky Lock and Dam to the construction of new railroad and highway bridges across the
Tennessee River below the dam. When completed, the new bridges would span approximately
2,000 feet. AB’s steel erection work for the new bridges began in May 2007 and was continuing
as of the date of the hearing. The Corps is responsible for enforcing the contract requirements
(Exhs. R-1, R-2; Tr. 23-24, 51-53, 267).
The contract provision most germane to this case requires AB’s ironworkers to utilize 100
percent fall protection when working more than 6 feet above the ground. This provision was
incorporated into AB’s Site Safety & Health Plan.

                                                2

According to Corps civil engineers, George Ellis (supervisor) and Stephen Moneymaker,
AB’s ironworkers, almost from the beginning of the project, were repeatedly observed working
without fall protection when working above 6 feet in situations such as unloading the girders from
trucks or pontoons. These instances involved heights of approximately 15 feet or less. When
observed, the Corps documented the incidents and notified AB supervisors who told them the matter
would be handled (Exhs. C-1, C-3, R-8; Tr. 26-28, 38, 71-72).
On June 13, 2008, approximately fifteen AB ironworkers were securing steel girders on a
concrete column at the river’s edge. The girders were hoisted into place by a crane. Each girder on
a column (pier), referred to as “haunch girder,” contained a bottom half and a top half which were
installed separately. When joined, the girder was 14 feet high. The girders were spaced
approximately 10 feet apart and consisted of five parallel lines across the column. To hold the
girders in place, cross-bracing, spaced approximately 16 feet apart, was installed between each line
of girders. The bottom flange of each girder which ironworkers used to walk on, was 18 inches wide
(Exhs. C-4, C-5; Tr. 120, 172-173, 321, 326).
At approximately 10:00 a.m., the bottom portion of girder line 1 had been bolted to the
column and the top half of the girder was being placed for bolting to the bottom half. The crane was
holding the top half of the girder slightly above the bottom half to get it aligned. The top half had
not been bolted to the bottom half. The raising crew, who was responsible for connecting the steel
together as it came up, was on the girder to set the top half and cross bracing. Foreman Joey Walker
was on top of girder line 2 directing the crew’s work (Tr. 101-102, 118, 124, 286).
James Jones, a journeyman ironworker, while on the flange, inside of girder line 1, between
girder lines 1 and 2, was moving from the end of the girder toward the column to help install a cross
brace. According to witnesses, when Jones stepped off a gusset plate, his leg buckled and he fell
approximately 70 feet to his death. Jones had been employed by AB for approximately one year on
the bolt-up crew which, on the day of the accident, was assisting the raising crew (Tr. 34, 103, 151).

                                              3

OSHA compliance safety officer Michelle Sotak investigated the accident after another
compliance officer had initiated the investigation.1 Based upon OSHA’s investigation, the citations
including the willful citation alleging a violation of § 1926.760(b)(1) were issued to AB.
Discussion
Alleged Violation
The Secretary has the burden of proving a violation of § 1926.760(b)(1) and must show:
(a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive
knowledge of the violation (i.e., the employer either knew or, with
the exercise of reasonable diligence could have known, of the
violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
There is no dispute that on the day of the accident, Jones, who was wearing a safety harness
with a lanyard, apparently unhooked his fall protection equipment before he fell. Ironworker Todd
Tyler testified that Jones untied his lanyard from a retractable, stepped down from a gusset plate on
the girder, lost his balance and fell (Tr. 151). AB foreman Joey Walker told OSHA that when he
saw Jones stumble, he “was waiting for his lanyard to catch him.” He “expected Jones to fall into
his lanyard” (Tr. 242-243).
Willful Citation No. 2
Item 1 - Alleged willful violation of § 1926.760(b)(1)

     The citation alleges that “on or about June 13, 2008, employees were exposed to fall hazards

of approximately 70 feet while working without fall protection.” Section 1926.760(b)(1) provides
Each connector shall: Be protected in accordance with paragraph
(a)(1) of this section from fall hazards of more than two stories or 30
feet (9.1 m) above a lower level whichever is less.

     1
       AB’s claim of bias by the OSHA inspector because she relied upon the written findings of the Corps and

did no t cond uct an indep endent investigation, is rejected. AB failed to assert the affirmative defense of unrea sona ble
inspection under § 8(a) of the Occupational Safety and Health Act (Act) in its answer or subsequent pleadings and
therefo re the defense is dee med waived. Ham ilton Fixture, 16 BNA O SHC 1073, 1077 (No. 88-1720, 1993). Also,
the use of other sources as a basis for a citation do es not render the insp ection or subsequ ent citation unreasonable.
There is no showing the inspection failed to substantially comply with the statutory requirement or that AB w as
prejud iced. A B su pervisors w ere interview ed an d allow ed to state their position (Exhs. C-15, C-1 6, C-1 7).
Although aspects of the inspection could have been more complete, such conclusion is based upon hindsight and a
review of the trial record. Such hindsight does not establish that the citation issued lacked substantial justification or
reflect inspecto r bias. Gem Industrial, Inc., 17 B NA OSHC 1185 (No. 93-1 122, 1995 ).

                                                        4

Although the citation alleges “employees,” the record fails to show that any employees, other
than Jones, were not fully utilizing their fall protection equipment on June 13, 2008.
The general requirement under OSHA for employees engaged in steel erection activity is that
if the employee is more than 15 feet above a lower level, the employee must be protected from fall
hazards by guardrail systems, safety net systems, personal fall arrest systems, positioning device
systems or fall restraint systems. See § 1926.760(a)(1). If the employee, however, is engaged as
a “connector,” the requirement of §1926.760(b)(1) for fall protection applies to fall hazards of more
than two stories or 30 feet, whichever is less. At heights between 15 and 30 feet, the connector must
be provided with a personal fall arrest system, positioning device system or fall restraint system and
wear the equipment necessary to be able to be tied off; or be provided with other means of protection
from fall hazards in accordance with §1926.760(a)(1). See §1926.760(b)(3).
There is no dispute that AB’s ironworkers including Jones were working as “connectors”
when installing the top half of the girder on June 13, 2008. A connector is defined at §1926.751 as
“an employee who, working with hoisting equipment, is placing and connecting structural members
and/or components.”
The record establishes, without dispute, the application of the steel erection standard at
§1926.760(b)(1),2 the exposure of the ironworkers on June 13, 2008 to a fall hazard of
approximately 70 feet while installing and bolting the girder, and the failure of Jones to utilize his
fall protection equipment at the time of the accident. The Secretary, therefore, has met her burden
of proving that the cited standard applies, the terms of the standard were not met, and employees
were exposed to a fall hazard of more than 30 feet.3
The element of employer knowledge is also established by the record. In order to show an
employer’s knowledge, the Secretary must show that 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).

     2
         “Steel erection” is defined at §1926.751 as “the construction, alteration or repair of steel buildings, bridges

and other structures, includ ing the installation of metal deck ing an d all plan king u sed during the process o f erection.”

     3
         Issues not briefed are deemed waived. See Georgia-Pacific Corps., 15 BNA OSH C 1127 (No. 89-2713,

1991).

                                                          5

AB did not have actual knowledge of Jones’ failure to utilize his fall protection equipment.
Jones was wearing his safety harness and lanyard. There is no evidence that Jones was observed by
supervisory personnel not being tied off on the day of the accident or on an earlier date.
However, foreman Walker’s statement that he expected Jones to fall into his harness when
he saw him stumble indicates that Jones was in plain view of Walker. At the time of the accident,
Walker was standing on girder line 2 supervising the erection of the top half of girder line 1. He was
approximately 20 feet from where Jones and the other crew members were working on girder line 1
(Tr. 172-173). Also, Walker told OSHA that there were times when he was not tied off and he had
“seen people not tied off, maybe passing a point going around something maybe just not tied off.”
Walker told OSHA that there were not enough retractables for the employees to work (Exh. C-17;
Tr. 179).
An employer can have constructive knowledge of a violation if it is shown the employer
failed to use reasonable diligence to discern the presence of the violative condition. Pride Oil Well
Serv., 15 BNA OSHC 1809, 1814 (No. 87-692, 1992). “Reasonable diligence” involves
consideration of several factors, including the employer’s obligation to have adequate work rules
and training programs, adequately supervise employees, anticipate hazards, and take measures to
prevent the occurrence of violations. Danis Shook Joint Venture XXV, 19 BNA OSHC 1497, 1501
(No. 98-1192, 2001), aff’d, 319 F.3d 805 (6th Cir. 2003).
In this case, AB should have known of Jones’ failure to fully utilize fall protection equipment
on the Kentucky Dam project. Ironworkers, Shane Lyman, Ricky Smith, and Todd Tyler, testified
they had observed other ironworkers not tied off on repeated occasions prior to the accident (Tr. 108,
131, 154). Also, prior incidents documented by the Corps put AB on notice that ironworkers were
not fully complying with the 100 percent fall protection rule. Corps engineer Moneymaker testified
that prior to the accident, he had observed “AB employees not tied off sometimes daily, sometimes
weekly. At various times I saw AB employees not tied off when steel was started - I would report
it to their safety officer/superintendent/or general foreman” (Tr. 64-65).
The Corps even issued a warning to AB on November 28, 2007 that:
On numerous occasions there have been observations of your
personnel not abiding with the requirement of 100% tie-off when
work at heights greater than six feet. There have been several
discussions with the site safety officer and field supervision on this

                                              6

issue and it appears to still be a problem. This office expects your
site safety officer and your project and field supervisors to strictly
enforce this contract requirement. It is expected that if a worker is
observed to not be in 100% compliance with this requirement, that
the work in that area be stopped and the worker removed from the
site and be suspended for the remainder of that day and the following
day. Repeat offenders will be permanently removed from the project.
Field supervision found to not be strictly enforcing this requirement
could also face removal and replacement from this project.
(Exh. C-1).

     Also, constructive knowledge is shown by AB supervisors. General superintendent Mike

Wade told OSHA that “on occasion seen ees’ not tied off” (Exh. C-15). Similarity, general foreman
Larry Tussey stated to OSHA, “I have seen guys not tied off” (Exh. C-16).4 He stated that “the only
time they cheat is when they are walking.” Tussey was also observed not tied off (Tr. 67).
Thus, the record establishes AB’s constructive knowledge of the ironworkers’ failure to
utilize fall protection. There is no showing by AB of adequate supervision of the ironworkers and
that it took adequate measures to prevent their failure to utilize their fall protection. An employer
is chargeable with knowledge of conditions which are plainly visible to its supervisory personnel.5
A.L. Baumgartner Construction Inc., 16 BNA OSHC 1995, 1998 (No 92-1022, 1994). When a
supervisory employee has constructive knowledge of the violation conditions, knowledge is imputed
to the employer. Dover Elevator Co. 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).
AB’s violation of § 1926.760(b)(1) is established.

                                 Unpreventable Employee Misconduct




     4
         Although Tussey did not sign his interview, he did not refute that he gave the statement. Tussey admitted

that he not on ly saw emp loyee s not tied off but he also w as not tied off on at least on e occasion (Tr. 337-338).

     5
     Foreman Walker is considered a supervisor. An employee who has been delegated authority to direct the

work of another employee, even if only temporarily, is considered to be a supervisor for purposes of imputing
knowledge to an emplo yer. Tam pa Shipya rds, Inc., 15 BN A O SHC 1533 (N os 86-36 0 86-469, 1992).

                                                         7

AB asserts that the violation of § 1926.760(b)(1) was the result of employee misconduct.
AB claims its work rule requires the 100 percent utilization of fall protection which was enforced
through training and its disciplinary program.
In order to establish the affirmative defense of unpreventable employee misconduct, an
employer is required to prove that it has (1) established work rules designed to prevent the violation,
(2) adequately communicated these rules to its employees, (3) taken steps to discover violations, and
(4) effectively enforced the rules when violations are discovered. American Sterilizer Co., 18 BNA
OSHC 1082, 1087 (No. 91-2494, 1997).
OSHA agrees AB has an appropriate fall protection rule. For the Kentucky Dam project, the
rule required 100 percent fall protection when exposed to a fall hazard in excess of 6 feet.
Compliance with such a rule would also mean compliance with OSHA’s fall protection rule for steel
erection. AB Safety Director Henry Mykich authored the site safety plan for the Kentucky Dam
project which incorporated the 100 percent rule above 6 feet (Exhs. R-8, R-11; Tr. 341).
The record also shows that the ironworkers including Jones received training on the fall
protection rule. AB’s safety training programs included initial orientation as well as weekly toolbox
safety meetings (Exhs. R-9, R-10, R-13; Tr. 344-346). The safety orientation by AB covered,
among other items, general construction rules, code of safety practices, and a review of the company
safety rules including the fall protection rule. The weekly toolbox talks discussed various topics
including fall protection. During his employment, Jones attended 26 toolbox safety meetings and
fall protection topics were discussed 19 times. Ironworker Todd Tyler testified that the ironworkers
had been doing this work for a long time and did not need to be given instruction because “we knew
what to do as far as making the piece and what had to be done” (Tr. 153).
As to its disciplinary program, AB supervisors, Wade and Tussey, testified that they had
verbally warned employees with respect to the tie off rule (Tr. 300, 331-333). Mykich testified that
the company disciplinary procedure incorporated in the Kentucky Dam site plan requires action
against an employee who has committed a “knowing” infraction of a safety rule (Tr. 365). If it was
unknowing, a written warning would not be mandated under the site plan.
The record shows that written warnings for infractions were issued to two ironworkers prior
to the accident; Jason Donaldson on May 29, 2008 and foreman Troy Crawford on February 26,
2008 (Exhs. R-5, R-15; Tr. 300-302, 365-367). Superintendent Wade stated he directed a written

                                              8

warning to Donaldson for not wearing a harness. Donaldson was laid off the next day for lack of
work. This was the incident documented by the Corps which involved an ironworker at a height of
more than 30 feet (Exh. C-3).
AB’s unpreventable employee misconduct defense is rejected. The record lacks evidence
of AB’s monitoring for hazardous conditions including the failure to utilize fall protection. Also,
its disciplinary program was not shown to be uniformly enforced.
AB failed to show it exercised reasonable diligence in the monitoring the employees’ use of
fall protection equipment while engaged in steel erection. AB’s Site Safety & Health Plan requires
(1) the Project Safety Specialist to conduct daily safety and health inspections of the site and
maintain a written log, (2) the Construction Superintendent to observe each foreman’s operation
once each day, (3) the Project Manager to make periodic audits of the project, (4) each Foreman and
General Foreman to oversee assigned work areas to detect hazards, and (5) the Corporate Safety
Director to conduct and document periodic audits of the project (Exh. R-8, p. 30). There is no
evidence these inspections or audits were conducted by the appropriate AB supervisor as outlined
by the site plan.
Also, to prove adequate enforcement an employer must present evidence of having a
disciplinary program that was effectively administered when a safety work rule violation occurs.
In this case, no one, including the superintendent, appears to have known what the disciplinary
program required. Many ironworkers were observed not using fall protection.
Despite Mykich’s testimony that only “knowing” infractions require disciplinary action, a
reasonable reading of AB’s written discipline program as set forth in its Site Safety & Health Plan,
suggest otherwise. The Plan requires, in part:
When there is willful misconduct on a job site - whether it is a
violation of a safety rule or any other work rule - disciplinary action
must be taken.

           Safety Bulletin No. 29 outlines the Company’s three step disciplinary

procedure. Following the observance of an infraction of an established work rule, a written warning
shall be given to the employee. Subsequent infractions shall result in a written warning with
suspension and eventual discharge from the project. However, depending on the severity of the
infraction, immediate suspension or discharge may be warranted. (Exh. R-8, p. 27).

                                              9

By the use of “shall” any infraction of a project safety rule, such as the failure to utilize fall
protection, could require at least a written warning.
Also, the record shows the supervisors and employees did not understand the disciplinary
program and it was not followed. The established work rule on the project required 100 percent fall
protection above 6 feet. There is no mention of a verbal warning in AB’s disciplinary policy.
According to General Superintendent Wade, the disciplinary policy required first a verbal warning,
followed by a written warning and then termination (Tr. 299). However, although he had observed
Tyler without fall protection on several occasions, he had only issued him verbal warnings, never
a written warning (Tr. 318). He testified that he issued verbal warnings to employees and two
written warnings to all employees on the project (Exh. R-7; Tr. 300). Even accepting Safety
Director Mykich’s testimony that the policy applies to “knowing” infractions, a worker’s violation
of a 100 percent fall protection rule would appear to have to be knowing. It is hard to imagine a
situation where it would be unknowing.
AB’s employee misconduct defense is rejected.
Willful Classification
The Secretary alleges AB’s violation of § 1926.760(b)(1) was willful. “It is well settled that
a willful violation is one committed with intentional, knowing or voluntary disregard for the
requirements of the Act, or with plain indifference to employee safety.” Continental Roof Systems,
Inc., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997).
The Secretary considers AB’s violation of § 1926.760(b)(1) showed plain indifference to
employee safety. She argues that plain indifference is established by the observations of the Corps,
the difficulty of ironworkers in utilizing their fall protection equipment, and the inadequate
enforcement by AB of safety violations. The issue is whether the record establishes AB’s plain
indifference to the requirement for fall protection during steel erection.
Jones was wearing appropriate fall protection and was utilizing his lanyard until he unhooked
it immediately before he fell. There is no showing other ironworkers on the crew that day were not
fully utilizing their fall protection equipment.
With regard to the Secretary’s claim of plain indifference, the record is insufficient to support
a classification of willful.
1. Observations by the Corps

                                               10

The Secretary argues the prior incidents of employees’ failure to utilize fall protection
documented by the Corps shows AB’s plain indifference. During the period of approximately May
2007 to June 2008, the Corps identified approximately five instances where it advised AB of the lack
of fall protection by its employees.6 AB was repeatedly advised by the Corps that employees were
violating the 100 percent tie off rule above 6 feet. Corps engineers’ Ellis and Moneymaker testified
that problems began on the first day of steel erection in May 2007 and continued until the accident
in June 2008. Ellis was so concerned that he wrote a letter to AB on November 28, 2007 warning
that any further violation of the tie off rule could result in the work being stopped and the violating
employee removed from the project.
Contrary to the Secretary’s assertions, the Corps’ observations fail to establish AB’s plain
indifference to employee safety or to compliance with OSHA’s steel erection requirements. Of the
incidents documented by the Corps, only one ironworker (Donaldson) was at a height of more than
30 feet. He was exiting the stair tower at Powerhouse Island without a fall protection harness (Tr.
76). The remaining documented incidents involved fall hazards of less than 15 which were contrary
to the 6-foot contract rule of the Corps but not OSHA’s steel erection standards. Also, there is no
showing the incidents documented by the Corps involved connectors or employees performing steel
erection not utilizing fall protection more than 30 feet or even more than 15 feet.
Corps engineer Ellis testified that his complaints regarding the lack of fall protection only
involved employees not tied working below 15 feet. Neither the QARs nor the letter from the Corps
showed instances where AB violated OSHA’s 30-foot steel erection rule for connectors (Tr. 42-43).
Corps engineer Moneymaker testified that he only reported the one instance of more than 30 feet
in the QAR. Moneymaker did not know if further action was taken by AB. He admitted that with
the exception of one instance on May 29, 2008, none of the entries in his QAR involved situations
above 30 feet (Tr. 86-92). The record shows that the May 29 incident cited by the Corps was
followed by the issuance of a written warning by AB to the employee (Donaldson) for failure to
follow AB’s fall protection rule. Donaldson was laid off the following day (Tr. 94, 300-302).

     6
       AB’s claim of bias by the Corps because of its interest in shifting responsibility and blame for the accident

is rejected. The court finds that the witnesses from the Corps were merely performing their jobs in ensuring
comp liance with the contract provisions. Any ex uberanc e show n by Ellis’ and Mo neym aker in describing AB ’s
work is more due to the lack of experience in supervising bridge projects and their mistaken belief the Corps’ 6-foot
rule was the same as OSH A’s steel erection req uirements (Tr. 34-36, 41, 84 -85).

                                                      11

Also, the Corps never recommended that AB’s work stop on the project (Tr. 95). In fact, the
Corps wrote in its Safety Gram that:
The Kentucky Lock staff and contractors personnel have been
diligent in enforcement of strict safety requirements regarding
personal protection equipment and fall arrest systems (Exh. R-4).

   For the purpose of a willful classification, there is a difference between the employees who

violated the Corps 6-foot rule and the OSHA’s 30-foot rule. The incidents documented by the Corps
do not establish plain indifference to employee safety while performing steel erection activities in
accordance with OSHA’s steel erection requirements.
2. Difficulty in Using Fall Protection Equipment
The Secretary argues that the ironworkers were sometimes unable to secure their fall
protection equipment and therefore, AB showed plain indifference to the use fall protection.
According to the Secretary, AB did not take adequate steps to ensure that ironworkers were always
capable of using fall protection. Walker told OSHA that there were not enough retractables for the
employees to tie off (Tr. 179). The employees who testified stated that they had difficulty being tied
off when they moved through the cross braces. They claimed that there was no place for Jones to
tie off when he moved through a cross brace just before he fell. Also, no one was on top of girder
line 2 to help him with his retractable and the bolt holes in girder line 1 could not be used because
the top half of the girder was being set and it would snap the lanyard’s hook (Tr. 114).
The Secretary’s arguments are not supported by the record and fails to show plain
indifference. It is noted that the other approximate 14 ironworkers on the day of the accident were
not shown without fall protection. Jones also was apparently tied off immediately before he
“unhooked” his lanyard. There is no showing Jones was not tied off prior to the accident or at any
other time during his employment.
On the day of the accident, there were a number of locations according to AB where Jones
could have tied off including the bolt holes in the top flange of the lower girder on girder line 1 and
the cross frames with the use of retractables. Also, the bolt holes in girder line 2 were available as
anchorage points to tie off for the ironworkers on girder line 1 (Tr. 115, 125, 286-289, 328-329).
According to witnesses, the top half of girder 1 had not been set in place on the bottom half
(Exh. C-4; Tr. 115, 286). There was a gap between the girder sections which allowed sufficient

                                              12

space for hooking the lanyard (Tr. 291, 331). According to Wade, the hook on the lanyard would
not have interfered with the setting of the top half of the girder because it was not set (Tr. 298).
Ironworker Shane Lyman testified that the bolt holes in the top flange of the lower girder were
available for Jones to tie off before the top girder was set. Although ironworker Ricky Smith said
the piece was being set when the accident happened, he later admitted that he did not have first hand
knowledge of the configuration of the girders and he was not in a position to see Jones. He agreed
that photographs of the site showed that the piece was not set and there was a large space between
the sections (Tr. 143, 145-146). Ironworker Tyler acknowledged that he did not know the amount
of space between the sections but agreed that if there was a big gap, the bolt holes could be used as
anchorage points to tie off (Tr. 162). Lyman, Smith and Wade agreed that the signal man on the day
of the accident would not have directed the section to be moved if an ironworker was out on the
girder tied off. The signal man’s job was to make sure all ironworkers were clear before the piece
moved (Tr. 114, 143, 298-299).
Also, OSHA’s claim that there was an insufficient number of retractables is not supported
(Tr. 178). OSHA presented no evidence that there was a need for every ironworker to have a
retractable available to him (Tr. 237). According to superintendent Wade, there were sufficient
amount of retractables because “not every employee involved in steel erection need to have a
retractable” (Tr. 292-293). There were, also, at least two alternatives to the use of retractables for
tying off; the bolt holes in girder line 1 and the bolt holes in girder line 2 (Tr. 288-289).
AB’s plain indifference is not established because there were adequate places for
ironworkers to tie off.
3. AB’s Failure to Enforce
According to the Secretary, AB’s plain indifference is shown by its failure to enforce the fall
protection rule. AB supervisors on-site observed employees not tied off and did not enforce the rule
in accordance with its disciplinary program. No AB employee was ever suspended even though the
Corps continued to report infractions of the fall protection rule. The employees only received verbal
warnings. The Secretary claims AB’s concern was getting the work done, not employee safety, and
employees knew that there would be no repercussions from failing to tie off.
Again, the Secretary’s evidence is not sufficient to show plain indifference. The citation,
in this case, involves an alleged violation of OSHA’s steel erection requirements for connectors.

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For the most part, the violations documented by the Corps were of the project’s 6-foot rule at heights
less than 15 feet. The infractions did not involve violations of OSHA’s steel erection requirement
for connectors.
Although ironworkers testified to observing employees not tied off, there was no showing
the incidents involved connectors at heights above 30 feet while engaged in steel erection.
Ironworker Lyman stated it was “not often occurrence” for him to observe other employees not tied
off (Tr. 108). When asked if he saw employees not tied off, Smith stated that “everybody cut a
corner every now and then” (Tr. 131). These observations do not show the employees were
involved in steel erection activities as connectors. Also, it is noted Smith testified that he fell into
his retractable when he was working at a height of approximately 30 feet (Tr. 128). Tyler’s
testimony that he saw employees not tied off on a daily basis, is not given weight because he did not
identify the work being performed or the heights were above 30 feet. Also, it is noted Tyler was
involuntarily placed on a no hire list by AB (Tr. 148).
AB issued a general written warning to all employees on November 28, 2007 (Exh. C-18).
Also, written warnings were issued to two employees including Donaldson and foreman Crawford
(Exhs. R-5, R-15). Donaldson was laid off the next day for lack of work (Tr. 79, 94).
Wade told Sotak that he enforced a 100 percent fall protection policy (Tr. 250). Wade and
Tussey testified that on occasion, they had verbally warned employees with respect to the tie off rule
(Tr. 300, 331-332). Safety director Mykich testified that this did not violate the AB policy on-site
which he authored (Tr. 364). As stated, he claims the disciplinary policy provides for written
warnings if the infraction was “knowing.” If it was “unknowing,” a written warning was not
required. Although as discussed, the plan can be read otherwise, Mykich’s explanation is
reasonable. Also, Tussey testified that he never had any problems with employees not tying off
above 15 feet and never had to warn the same employee twice (Tr. 332-333).
An employee’s failure to comply with the project’s 6-foot fall protection rule does not
establish AB’s plain indifference to OSHA’s steel erection rule for connectors. A willful
classification is not found.
Penalty Consideration
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,

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history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
AB is a large employer with approximately 500 employees and is not entitled to credit for
size. AB is also not entitled to credit for history because it received serious citations in the
proceeding three years (Tr. 216-217). AB is entitled to credit for good faith based upon its safety
program which included work rules and safety training. Mykich testified that as Safety Director,
he complies a report which tracks the safety performance for each project. The safety record for AB
at the Kentucky Dam project in 2005 to the date of the accident was good. In the 100,000 man-
hours that were worked during that time period, there were zero lost time work related injuries.
Most of the man-hours were worked during the two years (2007 and 2008) when steel erection was
ongoing (Exh. R-14; Tr. 358-359).
A penalty of $6,000.00 is reasonable for serious violation of § 1926.760(b)(1). There is no
dispute Jones was not properly utilizing fall protection. His fall was 70 feet. His supervisor was
within 20 feet when the accident occurred and in plain view. Jones’ exposure was of a relative short
duration.

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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 that
Serious Citation no 1:
1. Item 1, alleged serious violation of § 1926.307(d)(1) is affirmed as other than serious,
and a penalty of $1,500.00 is assessed pursuant to the parties’ stipulation of partial
settlement.

    2.     Items 2a and 2b , alleged serious violations of § 1926.550(a)(9) and § 1918.55(c)(1)
    are withdrawn by the Secretary pursuant to the parties’ stipulation of partial settlement.

    3.      Item 3, alleged serious violation of § 1926.759(a) is withdrawn pursuant to the
    parties’ stipulation of partial settlement.

    4.      Item 4, alleged serious violation of § 1926.760(d)(1) is affirmed with the withdrawal
    of instance (a), and a penalty of $2,500.00 is assessed pursuant to the parties’ stipulation of
    partial settlement agreement.

    Willful Citation no. 2:
    1.     Item 1, alleged willful violation of § 1926.760(b)(1) is affirmed as serious, and a
    penalty of $6,000.00 is assessed.




                                                   \s\ Ken S. Welsch
                                                   KEN S. WELSCH
                                                   Administrative Law Judge

Date: March 1, 2010

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