Irwin Steel Erectors Inc.
Four contested construction items vacated
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Irwin Steel Erectors performed steel erection and welding during construction of a Motorola facility in Austin, Texas. At the hearing, it resolved six serious citation items by withdrawing its contests in exchange for reduced penalties. The four remaining items concerned fire-extinguisher access during welding and three crane requirements involving level operation, inspection records, and swing-radius barricades. The ALJ credited company vice president James Irwin's detailed account over the compliance officer's recollection. He found the extinguisher was placed as close as practical, the crane was not operating in the photographed locations, inspection records were kept in the crane, and OSHA had not proved an inadequate barricade during operation. The judge vacated all four litigated items. The final order affirmed the six resolved items and listed penalties totaling $490.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.59(e)(2)(ii), 1926.59(g)(1), 1926.152(f)(1), 1926.352(d), 1926.450(a)(9), 1926.450(a)(10), 1926.550(a)(1), 1926.550(a)(6), 1926.550(a)(9), and 1926.550(a)(14)(i)
- Outcome: Six settled items were affirmed with reduced penalties, while four litigated items were vacated; the order lists $490 in total penalties.
- Key point: OSHA did not prove the four contested items after the ALJ credited the employer's specific testimony about the equipment and worksite conditions.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
PHONE:
COM (202) 60&5100 COM (202) 606-5050
FTS(202)6oc51~ Rs (202) 606-5050
)
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 90-2368
IRWIN STEEL ERECTORS INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re art in the above referenced case was
docketed with the Commission on July f 0, 1993. The decision of the Judge
will become a final order of the Commission on August 30, 1993 unless a
Commission member directs review of the- decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
August 19, 1993 in order to ermit su Brcient time for its review. See
Commission Rule 91, 29 C.$R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
.Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington,
. D.C. 2003603419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havrng questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 6063400.
~if-$o~~7,)/v
Date: July 30, 1993 *’ Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 90-2368
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room 54004
200 Constitution Ave., N.W.
Washington, D.C. 20210
James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752&
Mr. James C. Irwin, Pres.
Irwin Steel Erectors, Inc .
6 Edgemere Drive
Roanoke, TX 76262
E. Carter Botkin
Administrative Law Jud e
Occupational Safety an d Health
Review Cornmisslon
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791
00100997519:06
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTl-? 8EVIEW COMMISSION
ROOM 7R11, f=EDERAi WILDING
1100 COMMERCE
DALLAS, TEXAS 75242-079 1
F4X
PHONE. COM (274) 767-c350
COM (214) 76i-527’
F-6 729-42350
Frs 729-5271
.
.
..
SECRETARY OF LABOR,
..
Complainant, ..
..
.. OSHRC DOCKET NO. 90=236&S
v.
.
IRWIN STEEL ERECTORS, INC., I
.
Respondent.
APPEARANCES:
Daniel Curran, Esquire James Irwin
Dallas, Texas Roanoke, Texas
For the Complainant. For the Respondent,pro se.
Before: Administrative Law Judge E. Carter Botkin
DECISION AND ORDER
This is a proceeding brought before the Occupational Safety and Health Review
Commission (“the Commission”) pursuant to section 10 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 8 651 et seq. (“the Act”).
The Occupational Safety and Health Administration (“OSHA”) inspected a
construction project in Austin, Texas, where Respondent was performing erection and
welding work, from May lo-25,199O; the project engaged numerous contractors and involved
the construction of new manufacturing and administration buildings at a Motorola facility.
As a result of the inspection, Respondent was issued a serious citation with nine items and
2
an “other” citation with three items. Respondent contested the serious citation, and a
hearing took place on April 9, 1991.’
Item 4 - 29 C.F.R. S 1926.352(d)
Vem Bechtel, the OSHA compliance officer who inspected the site, testified that he
observed Respondent’s work activities on May 17,22 and 23,19!90, and that James Irwin was
the management representative he dealt with during his inspection. He further testified the
company had employees performing welding on the roof of one of the structures and that
there was no fire extinguisher at that level; tin stated he knew there was no extinguisher
on the roof, but said during a later phone conference there had been one 25 feet away.
Bechtel did not recall seeing a welder under the deck or Irwin showing him an extinguisher
in that area. (Tr. 18; 23; 26; 31-38; 65-71).
James Irwin is Respondent’s vice president of-operations. He testified that while he
had had employees welding on the roof at some point, he and Bechtel encountered a worker
welding under the deck of the structure; Bechtel asked about a fire extinguisher, and Irwin
told him there was one on a column base about 35 feet away and that it was kept there due
to the grading work in progress and equipment and traffic in the area. Irwin noted he
showed the extinguisher to Bechtel, who said it was too far away, and that he accordingly
set it on the ground underneath the employee; it was subsequently destroyed when the
employee, in descending, came down on top of it. (Tr. 109-12; 122).
The subject standard provides as follows:
Suitable fire extinguishing equipment shall be immediately available in the
work area and shall be maintained in a state of readiness for instant use.
Based on the conflicting testimony of Bechtel and Irwin, the resolution of this item
requires a determination of the credibility of these two witnesses. While Bechtel was sincere
as he testified, the discussions regarding the other contested items set out ~FZ@indicate he
‘At the hearing, the parties settled items 1, 2, 3, 5(a), S(b) and 9, which alleged violations of 29 C.F.R.
88 1926.59(e)(2)(ii), 1926.59(g)(1), 1926.152(f)(l), 1926.450(a)(9), 1926450(a)( 10) and 1926.550(a)(14)(i),
respectively. Specifically, the Secretary reduced the penalties for items 1, 2 and 3 to $70.00 each, reduced the
grouped penalty for items 5(a) and (b) to $235.00, and reduced the penalty for item 9 to $35.00, after which
Respondent withdrew its contest of these items. (Tr. 12-14).
3
did not have an accurate recollection of what transpired at the site. Irwin, on the other
hand, had a precise recall of the events at the site, and I observed his demeanor as he
testified and found him credible and convincing. Moreover, Irwin’s version of what
happened is supported by the phone conference about which Bechtel testified. Irwin’s
testimony is therefore credited over that of Bechtel.
The standard requires fire extinguishing equipment to be immediately available h the
work area. M’s testimony reflects that the extinguisher was put on the column base about
35 feet away rather than on the ground underneath the welder to avoid its being damaged
by the equipment, work and traffic in the area, and moving it to the exact work area of the
employee resulted in precisely what he was trying to prevent. Under the particular facts of
this case, I conclude the extinguisher was as immediately available as posslible, and that there
was no violation of the standard.
Item 6 - 29 C.F.R. 5 1926.550(a)(l)
Vern Bechtel testified that he and tithryn Miller, an OSHA industrial hygienist
trainee with him for the inspection, observed a Link Belt crane operating on May 17,22 and
23 which James Irwin was using to lift steel up to employees on a roof over 10 feet high.
Bechtel identified C-2-4 as photos he took of the crane; C-4 shows it in one location
preparing to lift the steel in front of it based on its outriggers being out and its tires-off the
ground, and C-2-3 show it right after a lift in another location with its tires down and its
right rear pontoon sitting on loose boards over a hole. Bechtel said he and Miller measured
the crane with an inclinometer each time they saw it operating and never found it within 1
percent of level with the horizontal as required by the manufacturer’s specifications he
consulted in his office.* He noted the condition was hazardous as the crane’s load could
have shifted and struck an employee.3 (Tr. 25; 36-47; 78-83; 95; 98).
2Bechtel said the crane was 4 percent out of level when measured in the location shown in C-3, but that his
notes reflected no specific measurement for the location shown in C-4. (Tr. 37-40; 45-46; 98).
3Bechtel indicated that the pontoon’s resting on the boards in C-3 exacerbated the hazard if the lifting was
done with the weight on the pontoons rather than the tires, but did not know which had occurred. (Tr. 3740;
45-47; 80; 95).
4
Bechtel identified R-1-2 as additional photos of the Link Belt he did not take. He
said the crane was in a lifting position in R-2 and could have been lifting the pipe rack in
the photos, but that he could not tell without seeing the crane’s jib or crown4 He also said
one of the racks at the site was lifted by a hydraulic crane operated by another company,
but that he did not know if that company was lifting the rack in R-1-2. (Tr. 61-64; 75-77).
Kathryn Miller testified she saw the Link Belt crane as shown in C-2-4, and that she
also observed it lifting the pipe racks depicted in c-4. (Tr. 99-103).
James Lrwin testified that while his crane laid iron in the position depicted in C-4 for
several weeks it did not lift the pipe racks shown in that photo and in R-1-2; another
company with a hydraulic crane was responsible for lifting the racks and placed them there,
and as soon as that company got them out of the way the Link Belt was moved to the
location in C-3 so the other company could do its work. Irwin said R-l-2 showed his crane
was not lifting the racks due to the way it was facing, and offered R-3, which he identified
as a letter from his company’s contracting firm, as further proof it did not lift the racks.
Irwin also said there were leveling devices on the Link Belt, that it was level when laying
iron in the position depicted in C-4, and that while he left after the crane was moved he did
not believe it lifted steel in the location shown in G3 because his company had basically
completed its job. (Tr. 106-09; 112-16; 122-23).
The subject standard provides, in pertinent part, as follows:
The employer shall comply with . the manufacturer’s specifications and
limitations applicable to the operation of any and all cranes and derricks.
Although Bechtel testified he and Miller measured the crane and found it not within
1 percent of level each time they saw it operating, the only two specific locations he
identified were those shown in C-2-4. Moreover, both he and PvIiller testified that C-2-4
were taken on May 23. (Tr. 40-41; 81-83; 101-02). The issue to resolve, accordingly, is
whether the Link Belt crane was, in fact, operating in those locations when Bechtel and
Miller observed it on May 23. I find it was not, for the following reasons.
‘In this regard, Bechtel noted there was another load line in R-l left of the one from which the rack was
suspended. (Tr. 64). .
5
me mer testified she saw the crane lifting the racks in c-4 Lnvin was emphatic
that his company did not lift any such racks at the site because another company was
responsible for doing SO. His testimony was credible and convincing and supported by that
of Bechtel, who admitted he saw another company’s crane lifting one of the racks.’ Bechtel
also acknowledged, essentially, that the other company could have been lifting the racks in
R-1-2, and that such was the case is bolstered by the second load line in R-l to the left of
the one supporting the rack. R-3, in which a business InGn identified as his contracting firm
states it was unaware of any involvement of the company with the installation of mechanical
support framing and that that work was awarded to a different contractor, is consistent with
Irwin’s testimony and provides further support for Respondent’s position. Based on the
record, it is concluded that Miller and Bechtel confused the activities of the other company
with those of Respondent and that the Link Belt was not lifting loads in the C-4 location
when they saw it on May 23.
In regard to the location depicted in C-2-3, Bechtel testified the photos were taken
right after a lift. However, he also testified he discussed the crane with Irwin, who told him,
inter alia, that he had parked the crane there and wasn’t going to use it. (Tr. 40). This
testimony is in accord with Irwin’s testimony that the crane was not used after it was moved
to his knowledge because the company was basically through with the job. I found Irwin’s
testimony in this regard persuasive, and it is supported by the fact, discussed more fully in
item 8, in.@, that the company finished its job on May 23 and left the site on that date. (Tr.
55-56; 119-20; 125-26). Based on the record, it is found Miller and Bechtel were mistaken
about the crane making lifts in the C-2-4 locations on May 23, and that the Secretary has
not demonstrated a violation of the standard. This item is accordingly vacated.
Item 7 - 29 C.F.R. S 1926.550(a)(6\
Vem Bechtel testified he asked Mack Hoffman, the management company
representative at the site, if he had a safety inspection record for the Link Belt crane, and
that Hoffman told him he did not. Bechtel said he looked for such a record in the crane
j1 also found persuasive Irwin’s testimonv that although the crane had previously been lifting at the C-4
location it was level when it did so due to* the leveling devices on it.
6
and did not find one, that he asked lrwin about it at that time and one was never produced,
and that while Lrwin agreed to his inspecting the crane it was removed from the site before
he could do SO; Bechtel noted he asked kin about the inspection on May 23, that it was
. postponed until the next day because it was raining, that the company and crane were gone
on May 24, and that Irwin did not attend the closing conference on May 25. (Tr. 52-M;
90-91).
James Irwin testified he has a degree in civil engineering, that his company has been
in business for forty years, that the company maintains and inspects its own equipment and
is competent to do so, and that it has never had an accident caused by a crane’s mechanical
failure. He further testified Bechtel did not ask him for an inspection record when they
were in the crane or any other time, and that there were, in fact, such records in one of the
doors of the crane. Irwin said he was not there when the issue came up, that Bechtel had
discussed the records with his brother David, who was also at the site and resembles him,
and that he understood Bechtel was to have inspected the crane on the 23rd but did not do
so, possibly because of the weather. Inuin noted his company left the site and removed the
crane on the 23rd because its job was finished and not because of the inspection, and
indicated his closing conference was conducted over the phone and that he had discussed
doing so with Bechtel previously. (Tr. 109-10; 118-26).
The subject standard provides as follows:
A thorough, annual inspection of the hoisting machinery shall be made by a
competent person.... The employer shall maintain a record of the dates and
results of inspections for each hoisting machine and piece of equipment.
It is clear that Bechtel believed the crane was removed in order to avoid his
inspecting it. (Tr. 94-95). However, Irwin’s explanation of why the crane was removed was
credible, as was his testimony about the inspection records being in the crane, and it appears
Bechtel was simply mistaken about having asked for the records when he and Irwin were in
the crane. Further, Irwin’s account of what happened is supported by Bechtel’s OWTI
testimony that David Irwin was at the site and that there was a phone conference with James
Irwin after the inspection. (Tr. 26; 31; 33-34). On the basis of the record, the Secretary has
not established a violation. This citation item is therefore vacated.
7
Item 8 - 29 C.F.R. 5 1926550(a)(9)
Vem Bechtel testified he saw the crane operating on three occasions without a
\ barricade that would keep employees from being caught in a pinch point or struck by the
rotating superstructure and counterweight; he discussed the hazard with Irwin each time, and
after the second time Irwin put up a nylon cord and wrapped it around a 550gallon drum,
as shown in C-3. Bechtel said this was adequate protection against a pinch point but not
against being struck; he took no measurements, but as he recalled the cord was inside the
swing radius of the counterweight. He also said the lines along the perimeter of the
superstructure shown in C-4 did not constitute a barricade. (Tr. 48-52; 84-88; 93-98; 127-28).
Kathryn Miller testified she observed the crane as in C-3, and that while it had
appeared to her at the site that a person outside the cord could have been struck by the
counterweight, the cord seemed to be outside the swg radius in the photo. (Tr. 100-04).
James Lrwin testified that the cord around the crane was a sufficient barricade in his
opinion, and that he had roped off cranes in this manner for twenty years; yellow or red tape
serves as a warning to employees, and the cord around the crane makes them aware of the
hazard since they would have to duck under it in order to approach the crane. (Tr. 116-18).
The subject standard provides as follows:
Accessible areas within the swing radius of the rear of the rotating
superstructure of the crane, either permanently or temporarily mounted, shall
be barricaded in such a manner as to prevent an employee from being struck
or crushed by the crane.
Bechtel testified he observed the crane operating three times without an adequate
barricade. However, the only two specific instances he documented were those depicted in
C-3-4, and pursuant to my findings in the item 6 discussion, supra, Bechtel and Miller were
mistaken in their belief the crane was operating when they saw it in those locations.
Moreover, I found Irwin’s testimony about his long-standing practice of roping off cranes
credible, and while he did not specifically testify that the swing radius of the counterweight
would have been inside the rope in C-3 he indicated such was the case and the testimony
a
of Bechtel and Miller in that regard was equivocalo6 On the basis of the record, the
Secretary has not shown a violation of the standard, and this citation item is vacated.
Conclusions of Law
1. Respondent, Irwin Steel Erectors, Inc., is engaged in a business affecting
commerce and has employees within the meaning of section 3(5) of the Act. The
Commission has jurisdiction of the parties and of the subject matter of the proceeding.
2 Respondent was in serious violation of 29 C.F.R. 08 192659(e)(2)(ii),
1926.59(g)(l), 1926.152(f)( 1), 1926.450(a)(9), 1926.450(a)( 10) and 1926550(a)( 14)(i).
3. Respondent was not in violation of 29 C.F.R. $0 1926.352(d), 1926.550(a)(l),
1926.550(a)(6) and 1926.550(a)(9).
Order _-
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED
that:
1. Items 1, 2, 3, 5 and 9 of citation number 1 are AFFIRmD as serious violations.
A penalty of $70.00 each is assessed for items 1, 2 and 3, and penalties of $245.00 and
$35.00 are assessed for items 5 and 9, respectively.
2. Items 4, 6, 7 and 8 of citation number 1 are VACATED.
E. Carter Botkin .
Administrative Law Judge
6Had the crane been operating as shown in the photos, it is clear that the roped area in C-3 would have been
required to have been outside the cmnteru*eight’s swing radius and that the lines around the superstructure
in C-4 would not have been an adequate barricr. However, since it has been found that the crane was not
operating in those locations when obsewc-d bv. Bcchtel and Miller, the issue of whether the photographed
conditions violated the standard need not he resolved.
Get today's answer for your situation
You just read what one judge decided for one employer in 1993, and it binds only those parties. Ezel checks the current OSHA standards and Commission precedent and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.