W.E. Darin Construction Enterprises, Inc.

Plain-English summary

W.E. Darin Construction Enterprises was erecting structural steel at a New York jobsite when a connector fell while climbing a column and later died from his injuries. OSHA alleged that Darin violated the stairway-and-ladder standard by not providing a ladder for access to the connection point. The judge relied on OSHA's interpretation that climbing vertical steel to make initial connections is nonroutine access for which ladders are not required. He also found that two nearby extension ladders were available and that the standard required Darin to provide a ladder, not compel employees to use one. That citation item and its proposed $3,500 penalty were vacated. Under the parties' agreement, another item was affirmed as nonserious with a $2,500 penalty and a second item was affirmed as serious with a $700 penalty, for a total of $3,200.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1051(a).
• Outcome: Mixed. The ladder-access item was vacated; two settled items were affirmed with total penalties of $3,200.
• Key point: OSHA's ladder-access standard did not apply to nonroutine column climbing for initial steel connections, and nearby available ladders also satisfied the standard's provision requirement.

Full text (OSHRC public release)

                             UN{~ED
                                  STATES
                                       Of AMERICA
    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMtSslON
                               One Lafayette Centra
                         1120 20th Street, N.W. - 9th Floor
                            Washington, m 200364419

Kl$g?kiEi?
SECRETARY OF LABOR.
Complainant,
v. OSHRC DOCKET
NO. 92-1679
W. E. DARIN CONSTRUCTION ENTERPRISES
Respondent.

                       NOTICE OF DOCKETING
                 OF ADMINISTRATIVE LAW JUDGE’S DECISION
       The Administrative Law Judge’s Re ort in the above referenced case m
  docketed with the Commission on Marc& 17, 1994. The decision of the Judge
  will become a final order of the Commission on April 18, 1994 unless a
  Commission member directs review of the decision on or before that date. ANY i    -
  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 Secret        on Of before
  April 7, -iB94 in order to ermit sufficient time for its review.Y ee
  Commission Rule 91, 29 6 .F.R. 2200.91.
     All further pleadings or communications regarding this case shall be
  addressed to:
                         Executive Secretary
                         Occupational Safety and Health
                          Revlew 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
                         Office of the Solicitor, U.S. DOc
                         Room S4004
                *        200 Constitution Avenue, NW.
                         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
   having questions about review nghts may contact the Commission’s Executive
   Secretary or call (202) 606-5400.




  Date: March 17, 1994

DOCKET NO. 92-1679
NOTICE IS GWEN TO THE FOLLOWING:

Daniel J. Mi& @.
Counsel for RC ‘onal Trial Liti ation
Office of the &dtor, U.S. D&
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq 0
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 703
New York, NY 10014

Robert G. Walsk, Es we
l

Walsh & Fle-g, 3 . C.
700 Dun Building
110 Pearl Street
Buffalo, NY 14202
--

Robert G. Walsh, Esquire
Walsh & Fleming, P. C.
3819 South Park Avenue
P. 0. Box 1909
Blasdell, NY 14219

Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an f Health
Review Commissron
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501

00106881519:02
 OCCUPATIONAL SAFETY AND HEALTH REVIEW CoiVbhiSSlON
JOHN w. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420 .
BOSTON, MASSACHUSETTS 02109401
(617) 223-9746

                                                              l

            V,                                                l




                                                                  OSHRC Docket No. 924679

W.E. DARIN CONSTRUCI’ION
ENTERPRISES, INC.,

                     Respondent.

Appearances: ,
Alan Kammerman,Esq. Robert Walsh, Esq.
Office of the Solicitor Walsh & Fleming, PC
U.S. Department of Labor Buff&lo,New York
For Complainant . For Respondent

Before: Administrative Law Judge Richard DeBenedetto

    On April 23, 1992, W.E. Darin Construction Enterprises, Inc. (“Darin”), was cited for

serious violation of 29 C.F.R. 3 1926.1051(a), which requires that 8 stairway or ladder be
provided at all personnel points of access where there is a break in elevation of 19 inches
or more, and no ramp, runway, sloped embankment, or personnel hoist is provided.’ A
penalty of $3500 is proposed for the violation. At the hearing held on May 26,1993, Darin
moved for dismissal of the citation at the close of the Secretary’s case, arguing mainly that
the standard is not applicable to the cited conditions (Tr. 169-70). The motion was granted
for the following reasons.
The citation ias issued after OSHA compliance officer Colin Sargent conducted an
investigation of an accident that occurred at a Darin job site in Gettsville, New York on
November 22, 1991 (Tr. 23-24). On that day, two Darin employees, Robert McCabe and ’
Angelo Nappo, Jr., were “connecting” horizontal steel beams to vertical columns by bolting

1 The first two items of the three-item citation were resolved by agreementof the parties (Tr. S-7).
them together with at least two bolts (Tr. 36-37, 104-05, 107, 143). In order to aa the
points at which these connections were to be made, Nappo and McCabe would clin& up
adjacent vertical Columns and move from level to level, attaching each end of the beams
brought in to them by a crane to their respective columns (Tr. 34-36, 67-69, 73.74,77, 143;
Exhibits C-1 & C-6). Just prior to the accident, Nappo had climbed down the column from
which he was working in order to get more bolts (Tr. 68, 143-44). He was on his way back
up the column when he lost his grip while reaching for the horizontal beam marking the
second level of the structure and fell to the ground below; he subsequently died from the
injuries he sustained (Tr. 26-28, 67-68, 143-44; Exhibits C-1 & C-6).
Darin cqncedes that the cited standard applies to the steel erection industry, but
maintains that compliance with the standard is not required where, as here, steelworkers
engage in climbing columns to make initial connections. To support its contention, Darin
aus our attention to a July 20, 1992 letter sent by Patricia K. Clark, OSHA’s Directorate
of Compliance Programs, to a construction employer seeking an interpretation of
0 1926,1051(a) with regard to the steel erection industry. The letter, in part, says:
In situations where non-routine access is required, such as
climbing vertical steel to make initial connections, and where
fall protection systems are used, then the concern of fall injury
is addressed and ladders and stairways are not required....
(Exhibit R-l). This interpretation is consistent with the testimony given at the hearing by
Sargent and McCabe, both of whom indicated that connectors typically do not utilize ladders
to access initial connection points (Tr. 67-72, 93-97, 159.60)? In fact, both men indicated
that utilizing a ladder under these circumstances might actually be unsafe since the steel
structure against which the ladder would be leaned is not always stable or secure at this
stage of the erection process and could sway or shift under a sign&ant amount of weight

• Although Sargent,who was aa iron worker for fourteen years prior to becoming a complianceoI&cr,
  contied that it 4 “typical” for connectors not to utilize ladders in their work, he indicated that he has
  observed more copnectors in recent years using ladders to aa connection points (l’k 71-73, 93-99).
  McCabe, who has 20 years of experience in this field, theorized that this may be due to changesin steel design,
  resulting in columns which may be of a round tubular type and therefore, difficult to climb (R 15940). He
  testified, however, that he and many others still prefer to climb columns without the use of a ladder in order
  to retain a certain amount of mobility (Tr. 94-95, 142, 153-54, 159-60).

                                                2
  

  (Tr. 11()-l& 152-54). As such, Ms. Clark’s explanation of the application of this standard
  seems to reflect some of the practicd considerations involved in work of this nature.3
  Because McCabe and Nappo were climbing the vertical columns specifically to make
  initial connections, Darin maintains that their work clearly required only non-routine access,
  as defined by Ms. Clark’s letter. Moreover, because the height to which they were climbing
  was less than 25 feet, neither Subpart R, the section of standards devoted solely to steel
  erection, nor 0 1926.105(a),’the general fall protection standard, required the use of a fau
  protection system (Tr. 124028,13537). As a result, Darin claims that S 1926.105l(a) is not
  applicable to the work performed by McCabe and Nappo on the day of the accident.
  me Secretary challenges Darin’s position on two grounds. First, although the
  Secretary agrees that under the relevant standards Darin was not re@ed to provide fau
  protection where the elevation was less than 25 feet, he argues that exemption Tom the
  standard was conditioned on the use of fall protection, and takes issue with Darin’s argument
  that a protection system can be considered “in use” when one is not provided because it is

.. not required (Tr. 125-27, 132). The Secretary is correct in pointing out the fallacy of Darin’s
reasoning; however, the fact remains that there is nothing under. the OSHA standards to
compel the -use of a fall protection system under the conditions which existed here.
Although the language used by MS. Clark to descriiiii the limitation upon the requirements
of 9 1926.1051(a) is, at first glance, somewhat ambiguous as to the use of a fall protection
system, to require a protection system where one is not mandated under the regulations
would be inconsistent with the intent of Ms. Clark’s interpretation letter, which is not to
substitute a fall protection system for a ladder, as the Secretary apparently argues. If we are
to derive fkom the interpretation letter the notion of using some form of fti protection in
place of a ladder, we are obliged to ponder the relevancy of such fall protection-whether

 3 This interpretatiomvould also seemto -lain why S 1926.1051(a)(l) has never been the subject of a citation
 against a steel erection company prior to this case (Tr. 16, 1oo-o2,13&39,171-72).

 ‘be standard at 29 CER. 9 1926.105(a) reads as follows:

         Q 1926.105 Safety nets.
         (a) Safety nets shall be provided when workplaces are more than 25 feet above the ground
         or water surface, or other surfaces where the use of ladders, scaffold, catch platforms,
         temporaryfloors, safety lines, or safety belts is impractical
                                                     3

it h scaffolds, catch platforms, or safety be1tS-W the climbing hazard addressed b the
standard and the “non-routine” tasks performed by the connectors. NO such relevancy
emerges from the record. It is reasonable and lo@4 to believe that MS. Clark’s reference .
to fall proteetion systems was an expression of gemral concern for maintaining such a system
whenever the conditions so required, but that the ~19~6.1OSl(a) standard was not applicable
to steel erectors when engaged in “non-routine” climbing.
me Secretary also argues that because McCabe testified that both he and Nappo had
climbed the same vertical column, specifically the one Tom which Nappo fell, the Secretary
contends that the access required was no longer routine and therefore, Darin cannot v&Q
claim that its employees’ work was exempt from the requirements of the cited standard (‘I’r.
147.50, 155-56). However, the interpretation letter states that in order to negate a finding
of non-routine access, it must be evident that access to the same location or by more than
one employee was “frequent”. According to McCabe, it was only because Nappo was
fatigued and behind in his work that McCabe came down from the column on which he was
working that day and climbed up the column on which Nappo wzu working in order to finish ,
a connection that Nappo was unable to complete (Tr. 150-Q 157-59). Indeed, McCabe
explained that under normal circumstances, he and Nappo would have climbed up their
respective cofu~s only once during the entire connecting process (Tr. 15748). Inasmuch
as this deviation from normal connecting procedure was a one-time event and, therefore, not
a “frequent” occurrence, the access required for the work being performed by McCabe and
Nappo remained non-routine. Thus, under the terms of OSHA’s interpretation letter,
0 1926.1051(a) does not apply to the cited condition.
The record provides an additional basis for the granting of Darin’s motion. If the
cited standard were applicable, the evidence suggests that Darin may have actually complied
with the requirements of 3 1926.1051(a) on the day of the accident by having at least two
extension ladders available at the worksite. According to Sargent, ladders were being used
by a crew of Da& employees performing bolting work about 40 to 50 feet away from the
area in which McCabe and Nappo were working (Tr. 32-36, B-59, 66-67, 92-93, 167-68;

                                          4

m&its C-2, C4, C-5, C-9 & C-lo).’ McCabe testified that he was aware these ladders
were available to him, but, as noted supra, he indicated that he preferred to climb cof~mns
without the aid of a ladder so as to retain a certain amount of mobility (Tr. 145-46, 152-54).
Section 1926.1051(a) clearly states that a ladder or stairway shall be “provided” under
certain conditions. Absent an explicit use requirement in a related standard, the
Commission has held that this language will be read as imposing only a supply or provision
requirement upon an employer. Pratt & U%itneyAimaft GROUP,12 BNA OSHC 177O,IV5,
1986-87 CCH OS-ID ll 27,564 (No. 80-5830, 1986), afd, 805 F.2d 391 (2d Cir, 1986). As
a result, 5 1926.105l(a) would have obligated Darin only to provide or make available a
ladder to its employees, not to actually require the use of such equipment. The Secretary
contends that it is not enough for Darin to have ladders present at the site, noting that the
cited standard specifically requires the provision of a ladder or stairway “at all personnel
points of access”, However, as noted at the hearing, the physical location of the work to be
performed at a construction site is constantly in flux; employees may be performing
connecting work at point & then minutes later, bolting work at point B (Tr. 5657). Given
these conditions,
-- Darin may be eonsidered in compliance with the requirements of the
standard, particularly where the ladders were in close proximity to the area in which McCabe
and Nappo were working and the employees were aware that they were available, but chose
not to use them.
Based upon the foregoing findings and conclusions, it is

ORDERED that the third item of the citation issued on April 23, 1992, regarding the
standard at 29 C.F.R. 0 1926.1051(a) is vacated. It is further

ORDERED that in accordance with the agreement entered into by the parties, item 1 of
the citation is amended
* to reflect a nonserious violation which is affirmed and a penalty of

5 Bolting or detail work involves reinforcing the initial connections between columns and beams with
additional bolts (Tr, 37-38). *
 ,!

$&so() is assessed; item 2 of the citation is affirmed as a serious violation and a penalty of
$700 is assessed,

         Xarch    1,   1394            Judge, OSHRC

Dated:
Boston, Massachusetts