Parmer Building Corporation

Plain-English summary

Parmer Building Corporation performed steel erection at a large Texas construction project. An OSHA compliance officer observed two employees standing on the top and middle rails of an aerial-lift basket while connecting a girder about 52 feet above ground. The employees were also tied off to the adjacent structure rather than remaining secured to the lift. The judge found that both conditions violated the aerial-lift standards and exposed the employees to a serious fall hazard, even though their tie-offs provided partial protection. The two training and lanyard items withdrawn before the hearing were vacated, while the two aerial-lift items were affirmed with penalties totaling $1,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2), 1926.104(d), 1926.556(b)(2)(iii), and 1926.556(b)(2)(iv)
• Outcome: Two serious aerial-lift items were affirmed for $500 each; two withdrawn items were vacated.
• Key point: Employees working from an aerial lift must remain on the basket floor and may not tie off to an adjacent structure, even when the basket cannot reach the desired work position.

Full text (OSHRC public release)

                              UNITED STATES OF AMERICA
      OCCUPATIONAL       SAFETY     AND    HEALTH       REVIEW    COMMISSION
                                  1825 K STREET    NW
                                      47-H FLOOR
                            WASHINGTON,    DC 20006-l   246




                                                                                FTS (202j   634--1,zQ8

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-3048
PARMER BUILDING CORPORATION
Respondent.

                     NOTICE    OF DOCKETING
           OF ADMINISTRATIVE        LAW JUDGE’S               DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on April 8, 1993. The decision of the Judge
will become a final order of the Commission on May 10, 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 etition should be received by the Executive Secretary on or before .
April 28, P993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room SUO4
‘00 Constitution Avenue, N.W.
kshington, 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
hawng questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7050.
FOR THE COMMISSION

                                    /fy 0 LLwG+&~

Date: April 8, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 91-3048

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOY
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re ional Solicitor
0 figIce of the Solicitor, U.S. DOL
525 Griffin Square Bldg., Suite 501
Griffin & Youn Streets
Dallas, TX 752 ff2

Richard Parmer, Presid ent
Parmer Building Corp.
P.O. Box 5116
Pasadena, TX 71 508

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00102334281:06
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFE?Y AND HEALTH REVIEW COMMISSION
ROOM 7811, FEDERAL BUILDING
1100 COMMERCE
DALWAS, TEXAS 75242-0791

                                                                                                        FAX.

PHONE:
COM (214) 767-0350
COM (214)767-5271
FE 729-0350
m 729-5271

SECRETARY             OF LABOR,

                    Complainant,
                                                              ..      OSHRC DOCKET NO. 91-3048-S
           v.
                                                               .
PARMER            BUILDING CORPORATION,

                    Respondent.


APPEARANCES:

           Olivia Tanyel Harrison, Esquire             Richard B. Parmer
           Dallas, Texas                               Pasadena, Texas
           For the Complainant.                        For the Respondent, pro se.

 Before:        Administrative   Law Judge Stanley M. Schwartz

                                        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 ef seq. (“the Act”).
            The Occupational        Safety and Health         Administration     (“OSHA”)           conducted     an
 inspection        of a    1500-acre    construction      project    for Formosa         Plastics    Corporation
 (“Formosa”),        where Respondent,       Parmer Building Corporation             (“Parmer”),     was engaged
 in steel erection;       the project was located just outside of Point Comfort, Texas and involved

  over ninety employers.          OSHA initiated its inspection at the end of March 1991 due to the
  fatality of an employee of another company, but began a comprehensive                       inspection of the
  entire site at the beginning of April 1991. Parmer’s work areas were inspected on April 18,

2

1991, and the company, after being issued one serious and one “other” citation, contested
only the serious citation.    A hearing was held on September          25, 1992.’

                                            The Evidence

        Robert Konvicka, the OSHA compliance officer (“CO”)                 who absented the alleged
violations, was the only individual who testified at the hearing.            He testified that Donald
Jones, the CO who inspected Parmer’s work areas on April 18, saw no violations at that
time, but that he himself observed the cited conditions on May 29 while inspecting another
company;     he was on top of a boiler with the foreman of the other company when he saw
two employees standing on the railings of an aerial lift basket 200 to 300 feet away. One
employee was on the top railing and was tied off to an angle brace on the structure; the
other was on the midrail, and both were engaged in connecting a horizontal girder between
two columns.     Konvicka identified      C-1 as a photo he took of the scene.            He noted the

• conditions were readily visible from where he was, that he watched the employees for seven
  to eight minutes, and that they were working out of the basket and did not go onto the
  structure. (Tr. 45-48; 51-58; 61-63; 68-69; 75-78; 82-84; 91-92; 97; 101-05).
  Konvicka said that 1926.556(b)(2)@) forbids tying off to a structure while working
  out of a lift because it could shift or fail and cause an employee to fall on girders or braces
  and sustain serious injury or death; the employee in this case told him his lanyard was 10
  feet long, which, coupled with the fact that it would have slid down the brace in the event
  of a fall, could have resulted in a fall of 22 feet? Konvicka stated the lanyard was not tied
  around the column, although this was not discernible from C-l, but that even if it was the
  condition would still have violated the standard. He further stated he did not see a second
  or third lanyard on the workers, but that tying off to both the structure and basket while
  going back and forth would violate the standard because if an employee fell he would be

  ‘Serious citation number 1 initially had four items alleging violations of 29 C.F.R. 50 1926.21(b)(2),
  1926.104(d), 1926556(b)(2)(iii) and 1926.556@)(2)(iv), respectively; however, the Secretary withdrew items
  1 and 2 prior to the hearing, leaving for resolution only items 3 and 4.

  2Konvicka noted the employees were about 52 feet from the ground, and that the second rope leading fiorn
  the, basket in C-l could have been the other employee’s tie-off. (Tr. 89-90).
   3

stretched between the structure and the basket. Konvicka opined the lift should only have
been used to work out of, that the employees were on the railings because it would go no
higher, and that a ladder should have been used to access the work area. (Tr. 55-60; 63-65;
74-78; 84; 89; 93-100).
Konvicka said that 1926.556(b)(2)( iv) re q uires standing on the floor of a lift basket
because being on the rails could cause an employee to fall out or back against the controls
and cause the lift to move. He was not aware the controls in this case were operated with
a foot pedal, but noted the standard was violated in any case because the employees were
on the railings. Konvicka said the Formosa safety representative was not with him when he
saw the violations, and that although he should have stopped his inspection and discussed
the situation with Parmer’s job superintendent he did not do so because he did not know
where he was; however, he did discuss the matter with the superintendent the following day.
(Tr. 54; 61-64; 68-71; 88-89).

                                             Discussion

        1926556(b)(2)(iii)     provides as follows:
        Belting off to an adjacent pole, structure, or equipment while working from
        an aerial lift shall not be permitted.
        Respondent    asserted at the hearing that the employees were working in and out of

the basket, and that to have 100 percent fall protection they tied off to the basket when in
it and also to the structure when leaving the basket. While the CO’s opinion was that this
would have violated the standard, Respondent’s assertion need not be addressed because
there is no evidence to support it. As noted above, the CO was the only individual who
testified. His testimony, which was credible and unrebutted, clearly establishes the
employees were working in the basket during the seven to eight minutes he observed them.
It also establishes, when considered together with C-l, that both employees were tied off to
the structure in violation of the standard. Accordingly, Respondent was in violation of
1926556(b)(2)(iii).
 4

        192636(b)(2)(iv)    provides as follows:
        Employees shall always stand firmly on the floor of the basket, and shall not
        sit or climb on the edge of the basket or use planks, ladders, or other devices
        for a work position.
        Although Respondent ass&ted at the hearing that the employees were not in a “work

position” because they were going in and out of the basket, this assertion is rejected based
on the foregoing. Respondent also asserted that the lift controls could not have been
triggered by an employee falling back on them because the controls can only be activated
by sliding one’s foot into the foot pedal and depressing it. Regardless, it is clear from the
CO’s testimony and C-1 that both employees were standing on the railings and could have
fallen out of the basket; therefore, a violation of 1926.556(b)(2)@) is established.
Respondent’s final assertion is that it was not in serious violation of the standards
because the CO, in spite of his belief the conditions could have resulted in serious injury or
death, did not inform company representatives of the situation until the next day. The CO,
as noted WJJM, candidly admitted that he should have stopped his inspection and discussed
the violations with the job superintendent. However, Commission precedent is well settled
that in order to prove a serious violation the Secretary’s burden is to show that, had there
been an accident, the result would likely have been death or serious injury. Kznco Conrtr.,
Inc., 11 BNA OSHC 1058, 1061, 1983-84 CCH OSHD ll 26,372, p. 33,454 (No. 79-4945, .
1982). It is apparent that had one of the employees in this case fallen, the result would
likely have been death or serious injury. Consequently, while the CO should have brought
the situation to the attention of Parmer’s management upon observing it, that he did not
does not refute the serious nature of the violations.
Turning to the assessment of an appropriate penalty, the Commission is the final
arbiter of penalties in all contested cases. Brennart v. OSHRC, 487 F.2d 438, 442 (8th Cir.
1973). In assessing penalties, the Commission is to give due consideration to the employer’s
size, history and good faith, and to the gravity of the condition. The parties stipulated that
Parmer had a total of twenty employees, twelve of whom were at the site, and although the
company has been found in violation of the subject standards its good faith was apparent
at the hearing. The gravity of the condition is the most important consideration. The
 5

gravity in this case was somewhat lessened by the fact that both employees were partially
protected because they were tied off. In addition, the abatement measure for both violations
was the same, that is, the employees should have stayed in the basket. Under the
circumstances of this case, it is concluded that the assessment of a penalty of $500.00 for
each violation is appropriate.

                                  Conclusions of Law

   1. Respondent,     Parmer Building Corporation,      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 not in violation of 29 C.F.R. $8 1926.21(b)(2) and 1926.104(d).
3. Respondent was in serious violation of 29 C.F.R. 0s 1926.556(b)(2)@) and
1926.556(b)(2)(iv).

                                         Order

   On the basis of the foregoing Findings of Fact and Conclusions             of Law, it is

ORDERED that:
1. Items 1 and 2 of serious citation number 1 are VACATED.
2. Items 3 and 4 of serious citation number 1 are AFFIRMED, and a penalty of
$500.00 for each item is assessed.

                                                 Administrative   Law Judge

Date:
MAR 29 1993