Super Sky Products, Inc.
Atrium fall-protection violations affirmed
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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
A Super Sky employee was water-testing a sloped glass atrium in Cleveland while working from a narrow gutter high above the patio below. A Labor Department attorney and OSHA supervisor watched through binoculars and saw that the employee was not tied to the safety line, although Super Sky disputed that observation. The judge credited their testimony, noting that the employer declined an opportunity to bring the employee to testify, and found a serious personal-protective-equipment violation. He also found that the access ladder ended several feet below the gutter rather than extending three feet above the landing or providing an equivalent handhold, requiring the employee to cross sloped glass without a grabrail. That condition was a second serious violation. The judge assessed $2,250 for each item, for total penalties of $4,500.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.28(a) and 1926.1053(b)(1).
- Outcome: Affirmed. Both serious fall-protection items were upheld, with total penalties of $4,500.
- Key point: A safety line provides no protection unless employees remain tied to it, and ladder access must safely reach the upper landing.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPAflONAi SAFETY AND HEALTH REVIEW Cok’ibdSSlON
One Lafayette Cents
1120 20th Street, NJ/K - 9th Floor
Washington, DC 200364419
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92- 1663
SUPER SKY PRODUCTS, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE IAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on November 17, 1993. The decision of the Judge
will become a final order of the Commission on December 17, 1993 unIess 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 by the Executive Secretary on or before
December 7 1993 in order to ermit sufficient time for its review. See
Commission’Rule 91, 29 CF.&! 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
O&e of the Solicitor, U.S. DOc
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 rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Q4It++
r4ync
Date: November 17, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-1663
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mid, I%+
Counsel for Re * Trial Liti ation
Office of the So
Ylcitor, U.S. DOet
Room S4004
. 200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of !!te Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Jay Poirior
Su er Sky Products, Inc.
4980 Shady Moss Lane
N. Ridgetie, OH 44039
Paul L. Brady
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00108830589:05
UNITED STATES W B
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE SmEEr, NE, SurTE 240
ATLANTA, GEORGIA -119
PHONE WC:
COM (404) 3474197 - ww 3474ll13
FTS (404) 3474lQI m ww 3474113
SECRETARY OF LABOR,
Complainant,
v. l
. OSHRC Docket No.: 924663
SUPER SKY PRODUCTS, INC.,
Respondent.
Appearances:
Gary Williams, Esquire Jay Poirior, ptp SC
Office of the Solicitor 4940 shady Mocls Lane
U. S. Department of Labor N. Ridgwilk, Ohio
Cleveland, Ohio For Respondent
For Complainant
Before: Administrative Law Judge Paul L Brady
DECISION AND ORDER
Super Sky Products, Inc. (Sky), contests a two-item citation issued by the Secretq
on May 7,1992. Item 1 alleges a serious violation of 0 1926.28(a) for f&are to rquire the
wearing of appropriate personal protective equipment for an employee exposed to a
hazardous condition. Item 2 alleges a serious violation of 3 1926.1053@)(l) for fhilure to
ensure that the side rails of a ladder used for access to an upper landing surf& extended
at least 3 feet above the upper landing surface to which the hdder was used to gain access.
Elizabeth Ashley works as an attorney with the Labor Department, Of&x of the
Solicitor, in Cleveland, Ohio. The Cleveland Office of the Solicitor is located on the eighth
floor of the Federal Building on East Ninth Street. On April 27,1992, Ashley observed from
an office window a man on the atrium of the North Point Building located 500 fttt
diagonally from the Federal Building (Tr. 940, 15, 78).
Ashley did not believe the man, who was “either standing up or in a crouched
position,” was tied off to a safety line. She looked thro@ a pair of binoculars and, as she
testified, “I could see that he in fact wasn’t attached to anything. He was just simply out
there on the glass doing work with no safety line” (Tr. 11). Ashley did not see a lanyard or
a safety line. She thought it possible that the man may have been wearing a safety belt
(Tr. 11).
Ashley went down the hall to OSHA’s offices, where she spoke with William
Kremzar, an assistant area director (formerly known as supervisor) for OSHA (Tr. 13).
Kremzar returned to the office with her and looked at the man on the atrium. He could not
tell whether the man was tied off until he looked through the binoculars, when he ccmfbmed
that the man was not tied off. Kremzar watched for approximately 15 minutes as the man
moved from point to point over a distance of 10 to 15 feet on the atrium (Tr. 22,24). The
man was traveling on a ledge or gutter traversing the atrium (Tr. 22). The atrium was
sloped. The distance from the ledge or gutter to the bottom the sloped atrium was 20 to
25 feet. It was another 30 to 40 feet from the bottom of the atrium to the patio below
(Tr. 23).
Kremzar assigned compliance officer Michael Pappas to inspect the site. Pappas first
looked through the binoculars from the solicitor’s office and determined for himself that the
man was not tied off (Tr. 26-27). By the time that Pappas got over to the North Point
Building, it was lunch time and the man was no longer on the atrium (T. 27). Pappas
located Jay Poirior, Sky’s field superintendent, and held an opening conference with him
(Tr. 28). Poirior, Pappas, and another OSHA employee, identified as Diana, went up on
the atrium (Tr. 40). Pappas also spoke with the man who had been on the atrium, who was
identified as Jesse. Pappas testified that Jesse admitted to him that he was not tied oE
(Tr. 30).
Pappas wanted Jesse to go back up on the atrium so that Pappas could take some
pictures. Pappas said that he told Jesse to wear a &ety belt and that Jesse went to his
truck to get one (Tr. 40). Poirior, who represented Sky pro se, disputes this, saying that
Jesse went to his truck to get a lanyard and that Jesse’s safety belt was lying up on the
atrium where Jesse had left it when he went to lunch (Tr. 40).
.
2
The SCCXC~~IY
introduced three ph~~phs taken by Pappas. AlI Wee are
underexposed and their quality is pmr (Exhiiiiiiits
C-1, C-2, C-3). Exhl’bitsC-1 shows Jesse
climbing SQ’s ladder to the atrium. JCSSC
does not appear in Exhiiiit C-2, which shows the
ladder leaning against the side of the atrium. &hi&it C-3 shows Jesse standing on t,hc ledge
or gutter that CToGsesthe atrium. Because of the poor quality of the photographs, it is
difficult to make out much detail in them.
Poirior insists that Sky had a safety line already up on the atrium, and that it was a
70 foot long, % inch nylon rope with a safety hook on one end (Tr. 58). Pappas testified
initially that he did not recall seeing a safety line on the atrium (Tr. 42). Under cross-
examination by Poirior, Pappas’s testimony wavered (‘I?. 46):
Poirior: You stated that you told Jesse that when he climbed up there
to put on his tiety belt and put on a lanyard?
Pappas: Yes.
Potior: What did he tie the lanyard to?
Pappas: As far as I can recall, we just had him to go up so far and back
down. We didn’t let him go past the top of the ladder. We
asked him to go up to -
Poirior: Isn’t there a picture of him in the gutter there?
Poirior is correct: Exhibit C-3 clearly shows Jesse standing in the gutter, well above
the point where the ladder ends. Poirior continued his cross-examination (Tr. 47):
Poirior: Being an OSHA pcrso~ obviously, you wouldn’t let him go up .
there unless he was tied off?
Pappas: Right.
Poirim Now, if he is up there, what would he tie his lanyard to if he
was up there?
Pappas: If I recall right, I don’t recall seeing a safety line there before,
but he did tie off to a safety line. If I am thinking right he took
it up with him.
l 0 l
3
Judge Brady: YOUdon’t recall if it ufas already there or not?
Pappas: No, I don’t.
Although it is difficulto see, a close examinationof &hiiiiit C-3 reveals that a rope
runs the length of the gutter where Jesse is standing, and w verticallyat the right of the
photograph. Based on Pappas’s questionable recall of wherethe safetyline came from and
Poirior’s firm insistence that the safety line was in place during the time Jesse was working
on the atrium, it is concluded that the safety line was in place during the time Jesse was atop
the atrium. The question remains whether Jesse was tied off to the safetv line.
Item 1: Alleged violation of 5 1926.28(a)
The Secretary alleges that Jesse was not tied o&, in violation of 0 1926.28(a), which
provides:
The employer is responsible for requiring the wearing of appropriate personal
protective equipment in all operations where there is an exposure to hazardous
conditions or where this part indicates the need for using such equipment to reduce
the hazards to the employees.
Poirior testified that Jesse was atop the atrium “water testing the sl@ight” (Tr. 60).
Poirior was inside the building, under the atrium, looking for leaks. Poirior and Jesse were
wearing voice-activated headsets and so were
. in contact with each other (Tr. 60). Poirior
contends that Jesse’s safety belt was hooked directly to the safety line while he was on the
atrium. Poirior stated that, “Jesse did tell me at one time aftemds that he untied to move
across the gutter because the hose got hooked” (Tr. 60). Poiriorclaimsthat, contraryto
- Pappas’s testimony, Jesse told OSHA that he was tied off the day of the inspection(Tr. 55).
Poirior knew where Jesse was woT)Ljrkjng
on the day of the hearing. The judge offered
to recess the hearing for several hours in order for Poiriorto contact Jesse and have him
appear as a witness. Poiriordeclined,and Jesse did not testify (Tr. 55-58). Without Jesse’s
testimony that he was,in fact, tied off on tht day of the inspection, Sky cannot overme
the Secretary’s case. Even discounting Pappas’s testimony that Jesse admitted to him that
he was not tied o&, this court is left with Ashley’s and kemzar’s testimony that they viewed
Jesse through binoculars over a period of about 30 minutes and saw that he was not tied off.4Based on their testimony, it is concluded that Sky was in violation of 6 1926.28(a).
Jesse was exposed to the hazard of a 20 to 25 foot fall to the end of the atrium, and an
additioti 30 to 40 foot fall to the patio below. Such a fall would likely result in death or
serious physical injuries. The violation was serious.
Item 2: AUeptd violation of 8 1926.1053fbMl)
The Secretary alleged a violation of 0 1926.1053(b)(l), which provides:
When portable ladders are used for access to an upper landing surface, the
ladder side rails shall extend at least 3 feet (.9 m) above the upper landing
surface to which the ladder is used to gain access; or, when such an extension
is not possl%lebecause of the ladder’slength, then the ladder shall be secured
at its top to a rigid support that will not deflect, and a grasping device, such
as a grabrail, in mounting and dismounting the ladder. In no case shall the
extension be such that ladder deflection under a load would, by itself, cause
the ladder to sip off its support.
It is undisputed that the ladder that Jesse wzu using to gain access to the gutter where
he was working did not extend at least 3 feet above the gutter. In fact, the ladder ended
several feet belaw the gutter (Exh. C-3; Tr. 32). Pappas testified that this presented a
hazardous condition because in order to get from the ladder to the gutter, Jesse had to walk
up the atrium with no handholds or grabrails. Jesse was exposed to slipping or falling on
the sloped glass (Tr. 37). The Secretary has established a serious violation of
g 1926.1053@)(1).
PENALTY DETERMINATION
The Commission is the final arbiter of penalties in all contested cases. Sectetary v.
OSAHRCd lnterstakt G&USCo., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the
Act, in determining the appropriate penalty the commission is required to find and give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the history of previous violations. The
gravity of the violation is the principal factor to be considered.
No testimony was adduced as to the size of Sky. Sky demonstrated good faith in
dealing with OSHAand had a good written safety program (Tr. 38). No history of previous
5
violations was mentioned. The gravity of the violations was severe. Upon due consideration
of the relevant factors, it is determined that a penalty of $2,250 is appropriate for each item.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is ORDERED:
1. That item 1, alleging a violation of 8 1926.28(a), is affirmed and a penalty of
$2,250 is assessed; and
2. That item 2, alleging a violation of 8 1926.1053(b)(l), is affirmed and a penalty
of $2,250 is assessed.
/s/ Paul L. Brady
PAUL LaBRADY
Judge
Date: November 9, 1993
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