Southwest Refractory, Inc.
Suspended-load violation affirmed with reduced penalty
Apply this to your situation
This order from 1994 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
Southwest Refractory hired an independent crane company to turn a 17,000-pound steel pipe while Southwest applied refractory lining at its Sapulpa, Oklahoma, facility. A Southwest employee crouched beneath the suspended pipe to move supporting timbers, and the pipe fell on him; he later died from his injuries. The judge held that Southwest remained responsible for keeping its own employees clear of suspended loads even though the crane contractor controlled the rigging and lifting operation. Southwest had a rule against working near suspended loads, held safety meetings, and warned employees that morning, but the record showed frequent violations and no demonstrated use of written reprimands or termination. The judge therefore rejected the unpreventable-employee-misconduct defense. He affirmed the serious violation and assessed $3,000 rather than the proposed $5,000 penalty.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.184(c)(9).
- Outcome: Modified. The serious suspended-load violation was affirmed, with the proposed penalty reduced to $3,000.
- Key point: Hiring a crane specialist does not transfer an employer's duty to keep its own workers clear of suspended loads, and a work rule must be effectively enforced.
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
.
PHONE:
Ei (202) 6o6-wxi
COM (202) 6oG5100
Frs (202) 606-50!50
FTS (202) 60+5100
.
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2345
SOUTHWEST REFRACTORY
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 December 2, 1993. The decision of the Judge
will become a final order of the Commission on January 3, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES 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 22, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 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
Office of the Solicitor, U.S. DOgL
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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
E0%TI-IE COMMISSI.. /I’T
Date: December 2, 1993
DOCKET NO. 92-2345
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
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752 82
Kenneth D. Bodenhamer, Esq.
Bodenhamer & Levinson, P.A.
5310 East 31st Street, Suite 900
Tulsa, OK 74135 5027
Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an f Health
Review Commissron
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501
00108732462:06
UNITE0 STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109401
(617) 223-9746
a
.
.0
SECRETARY OF LABOR,
Complainant, ..
l
.
.
v.
.
. OSHRC
.. DOCKET NO. 92-2345
SOUTHWEST REFRACTORY, INC., l
.
.
.
Respondent. ..
..
Appearances:
Nancy B. Carpentier, Esq. Kenneth D. Bodenhamer, Esq.
Office of the Solicitor Bodenhamer & Levinson, PA
U.S. Department of Labor Tulsa, Oklahoma
For Complainant For Respondent
Before: Administrative Law Judge Richard DeBenedetto
DECISION AND ORDER
On July 1, 1992, Southwest Refractory, Inc. (“Southwest”), was cited for a serious
violation of 29 C.F.R. § 1910.184(c)(9) which requires that employees be kept clear of
suspended loads and loads about to be lifted by a sling. A penalty of $5000 is proposed.
The citation was issued after OSHA safety compliance specialist, Jorge11 Henry, conducted
an investigation of an accident that occurred at Southwest’s Sapulpa, Oklahoma site on April
23, 1992, which resulted in the death of a Southwest employee (Tr. 4-5, 16-20, 31-32).
Callidus Technologies (“Callidus”) hired Southwest to apply refractory material to the
inside of a 17,000 pound, U-shaped steel pipe that Callidus had shipped to Southwest’s
Sapulpa site; the pipe was twelve feet long, fifteen feet wide, and six feet in diameter (Tr.
9-11, 17,28,58; Exhibits C-3 & C-4). During the refractory process, the pipe had to be lifted
and turned over so that refractory material’ could be applied to the other side of the pipe
1 Refractory material is a heavy, cement-based, liquid lining which is applied to the internal walls of various
pipes and vessels in order to insulate and protect the unit (Tr. 28-29, 58-59).
(Tr. U-12, 28-30, 70). Southwest hired Mobile Crane Services, Inc. (“Mobile”) to lift the
pipe. Mobile, an independent contractor, provided a 35ton crane, a crane operator, and
a rigger to perform the lifting operations (Tr. 42-43, 59-61, 69-70).
On the morning of April 23rd, Mobile’s crew had already flipped over approximately
nine pieces of equipment for Southwest before turning to the Callidus pipe (Tr. 61-62, 74).
The rigger, a Mobile employee, rigged the pipe using a sling which consisted of a choker and
ball cable attached to the lifting lugs on the side of the pipe (Tr. 26-30, 45-46, 72, 76;
Exhibits C-1 through C-4)? The’ pipe was resting on its side on top of several timbers
which had to be relocated underneath the pipe once it was lifted and turned over; two
Southwest employees assisted with this task (Tr. ll-12,30-31, 62,70-71,76-77). When John
Fellows, one of these employees, crouched down underneath the suspended pipe to shift
some of the timbers, the pipe fell on him, pinning him to the ground; he subsequently died
from the injuries he sustained (Tr. 4-5, 12-13, 17, 30-32).
Section 1910.184(c)(9) re q uires that employees be kept clear of suspended loads as
well as loads about to be lifted. There is no question that Fellows was exposed to a hazard
as he worked near the suspended pipe and his failure to stay out from under the load clearly
violated the mandate of the cited standard (Tr. 33-36). The record demonstrates that
Southwest was well aware of the fact t hat working around or underneath a suspended load
posed a serious hazard to employees. Both Phillip Stonecipher, Southwest’s vice president
of administration, and Jack Sligar, Jr., Southwest’s project superintendent on the day of the
accident, testified that Southwest had made a serious effort to ensure that its employees
stayed clear of loads during lifting operations by constantly warning them when they got too
close and repeating this admonition at regular safety meetings (Tr. 62-65, 73-75, 79-80).
2 There was some dispute at the hearing over whether the rigger performed this task alone or with the
assistance of Robert Brown, a Southwestemployeewho was present at the scene of the accident (Tr. 48-49,
54, 60-61,69-72,76,78). In either case, it seems unlikely that Brown would have done any more than simply
assist, at the rigger’s direction, in attaching the pipe to the cables. It is the rigger who, as safety compliance
specialist Henry described it, “hooks the cables and things to...whatever they’re lifting” and Southwest
specifically requested that Mobile provide a rigger for this purpose on the day of the accident (Tr. 45-46,52,
60-62, 69-70, 72, 78). Southwest employees apparently receive no training in this type of work (Tr. 62).
2
Having shown that the cited standard applies to the cited condition, that the terms of the
standard were not met, and that Fellows was exposed to a serious hazard which was
recognized as such by Southwest, the Secretary has satisfied his burden of proving a
violation. Wbolsto~z Colzstr. Co., 15 BNA OSHC 1114, 1116, 1991 CCH OSHD Y 29,394 (No.
88-1877, 1991), afs’d, 15 BNA OSHC 1634 (No. 91-1413, D.C. Cir. 1992).
In its defense, Southwest maintains that because Mobile was in charge of all lifting
operations that day, the responsibility for the cited violation belongs to it and not Southwest.
Southwest had employed Mobile on jobs such as this one since 1982 and, apparently, never
had a safety problem with them (Tr. 59-60, 79). It was not unreasonable, therefore, for
Southwest to have expected Mobile to follow safe procedures when performing any work
related to that for which it had been hired.3 Sawer Electric & Mfg. Co., 11 BNA OSHC
2133,2136, 1984 CCH OSHD ll 26,982 (No. 820178,1984), @jM, 12 BNA OSHC 1445 (No.
84-1961, 4th Cir. 1985) (“Sasser”) (“[Wlhen some of the work is performed by [an
independent contractor], an employer is justified in relying upon the [contractor] to protect
against hazards related to the [contractor’s] expertise so long as the reliance is reasonable
and the employer has no reason to foresee that the work will be performed unsafely.“). See
also Blount hfl. Ltd., 15 BNA OSHC 1897, 1900 n.3, 1992 CCH OSHD lJ 29,854 (No. 89.
1394, 1992).
Southwest, however, was not cited for failing to rig the Callidus pipe properly or for
operating the crane in an unsafe manner. Southwest was cited for failing to keep its own
employees clear from a suspended load, a condition which cannot be said to have come
within the exclusive control of Mobile and, in fact, was a hazard which, as noted supra,
Southwest had taken steps to address in its workplace. The responsibility, therefore, for
ensuring that Southwest employees kept clear of the suspended pipe belonged to Southwest
and cannot, under these circumstances, be passed off to Mobile. CJ Sasser at 2136
Indeed, when the compliance officer suggested ways in which Southwest could have abated the hazard, e.g.,
by rigging a safety device to the ends of the pipe to balance it, he was identifying adjustments that would have
been made during the rigging process, an operation which clearly came within the scope of Mobile’s expertise
and as such, under its control (Tr. 40-41, 60-61).
3
(maintaining safe clearance between crane and power lines directly related to crane
operation and therefore, was the responsibility of the crane operator, not the hiring
employer).
Southwest contends that because it did address this hazard in its workplace, Fellows
was well aware of the risks involved in working underneath a suspended load and, therefore,
his actions on that day constituted an act of unpreventable employee misconduct. In order
to establish this affirmative defense, an employer must show that it had a specific workrule
in place to address the hazard on which the violation is based, that it effectively
communicated established workrules to its employees, that it made an effort to discover any
violations of these rules, and that the rules were enforced when violations were committed.
Pride Oil Well Sew., 15 BNA OSHC 1809, 1814, 1991 CCH OSHD lf 29,807 (No. 87-692,
1991). See also Archer-Wester Contmc. Ltd., 15 BNA OSHC 1013, 1017, 1991 CCH OSHD
ll 29,317 (No. 87-1067, 1991), afd, 15 BNA OSHC 1953 (No. 91-1311, D.C. Cir. 1992).
According to Stonecipher, Southwest employees have been trained to stay clear of
suspended loads and loads about to be lifted since the company’s inception in 1982 and this
rule was communicated to employees during routine safety meetings as well as prior to each
lifting job (Tr. 63-64). Project superintendent Sligar confirmed that he warned his employees
on the day of the accident to keep clear of the loads being lifted that day, noting in
particular that the Callidus pipe was extremely heavy and off-balance because only one side
of it had been refractorized (Tr. 70, 73-75). In addition, Sligar testified that he had
specifically warned Fellows earlier that morning about staying clear of a load when he
observed Fellows trying to push a board underneath a pipe with his foot (Tr.75).4
The combined testimony of these two employees demonstrates that Southwest did
indeed have a workrule in place to address the hazard at issue here and that Southwest had
effectively communicated this rule to its employees. But while both Sligar and Stonecipher
made it clear that Southwest employees were closely monitored when working in and around
suspended loads and loads about to be lifted, neither indicated whether the employees who
4 It was also revealed at the hearing that Fellows had been employed by Mobile before coming to work for
Southwest and was arguably well-acquainted with the risks involved in lifting a heavy load (Tr. 74-75).
4
violated this rule were disciplined accordingly. At the hearing, Stonecipher explained that
under Southwest’s enforcement scheme, the violating employee would first be given a
warning and if the employee continued to violate the rule, he would be terminated (Tr. 62-
63). He also testified that this particular rule was violated frequently and Southwest
employees had to be “constantly reminded” to keep clear of the loads (Tr. 64-65). Despite
these frequent violations and constant reminders, though, Stonecipher stated that he was not
aware of a written reprimand ever having been issued to a Southwest employee and did not
know of any employee who had ever been termi nated for violating this workrule (Tr. 64-65).
Similarly, Sligar testified that whenever empl oyees got too close to a load, they were
“immediately run off’, but failed to indicate whether disciplinary action was ever taken in
these instances (Tr. 79-80).
Southwest, therefore, has failed to prove that the enforcement mechanisms identified
by Stonecipher were actually implemented with regard to discovered workrule infractions.
Accordingly, an unpreventable employee misconduct defense has not been established and
the alleged violation must be affirmed. Because exposure to this hazard could result in
serious injury or even death, as was the case here, the violation was properly characterized
as serious. Upon consideration of the penalty factors outlined in 8 17(j) of the Act, 29
U.S.C. 8 666(j), a p enalty of $3,000 is appropriate.
Based upon the foregoing findings and conclusions, it is
ORDERED that the citation is affirmed, and a penalty of $3,000 is assessed.
Rf&IARD DeBENEDETTO
Judge, OSHRC
November 24, 1993
Dated:
Boston, Massachusetts
Get today's answer for your situation
You just read what one judge decided for one employer in 1994, 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.