Kokosing Construction Co., Inc.
Rebar item affirmed, formwork fall item vacated
Apply this precedent to your situation
This is citable Commission precedent from 1996, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
A Kokosing carpenter fell about 22 feet while dismantling concrete formwork and died near two rows of unguarded reinforcing steel. The Commission found that part of his body could have fallen onto the rebar and that the conspicuous condition, crews in the area, and inadequate inspection instructions gave Kokosing constructive knowledge. It affirmed the rebar item as serious and assessed a $4,250 penalty. The Commission also found that climbing formwork without fall protection was a recognized hazard likely to cause serious harm. It nevertheless vacated the general-duty item because OSHA did not prove that personal fall protection, scaffolds, or ladders were feasible under the conditions at the Steel-Ply formwork. The Commission therefore affirmed the judge's disposition of both items.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.701(b); 29 U.S.C. § 654(a)(1)
- Outcome: The serious unguarded-rebar item was affirmed with a $4,250 penalty, and the general-duty fall-protection item was vacated.
- Key point: OSHA proved access and constructive knowledge for the rebar hazard, but a general-duty citation also required proof that a proposed fall-protection method was feasible at the specific worksite.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALIB REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419
Office of Phone: (202) 606-5400
Executive Secretary Fax: (202) 606-5050
SECRETARY OF LABOR,
Complainant,
V. OSHRC Docket No. 92-2596
KOKOSING CONSTRUCTION CO., INC.,
Respondent.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
December 20,1996 ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF TIDS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660.
FOR THE COMMISSION
Date: December 20, 1996 ~~~~~~~
Ray . Darling, Jr.
Ex cutive Secretary
92-2596
NOTICE IS GIVEN TO THE FOLLOWING:
Benjamin T. Chinni
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Daniel J. Mick
Office of the Solicitor, U.S. DOL
RoomS4004 ·
200 Constitution Ave., N. W.
Washington, D.C. 20210
Michael S. Holman
Sarah J. DeBruin
Elizabeth A. Preston
Bricker & Eckler
100 South Third Street
Columbus, OH 43215-4291
John H. Frye, III
Administrative Law Judge
Occupational Safety and Health
Review Commission
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
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: FAX:
COM (202I ~100 COM (202) 606-6050
FTS (202I ~100 FTS (202) 606-6050
SECRETARY OF LABOR,
Complainant,
V. OSHRC Docket No. 92-2596
KOKOSING CONSTRUCTION CO., INC.,
Respondent.
DECISION
Before: WEISBERG, Chairman; MONTOYA a..,d GUTTMAN, Commissioners.
BY THE COMMISSION:
On review in this case are two alleged violations of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678, involving a worksite ofKokosing Construction
Company, Inc., in Columbus, Ohio. In the first item, which Administrative Law Judge Jolu1
H. Frye, III affirmed, the Secretary of Labor alleged that Kokosing failed to properly guard
certain reinforcing steel rods to eliminate impalement hazards. In the second item, which
Judge Frye vacated, the Secretary alleged that Kokosing failed to ensure that its employees
used fall protection to gain access to their working positions on formwork walls. We affirm
the judge's decision regarding both items.
I. Unguarded Rebars
On March 20, 1993, Dwight Holley, a Kokosing carpenter engaged in disassembliI1g
a formwork wall, fell approximately 22 feet onto a concrete slab and died after mistakenly
detaching the scaffold bracket to which he had tied on his safety belt. The fall occurred near
1996 OSHRC No. 35
2
two rows of upright unguarded reinforcing rods ("rebars"). The Secretary alleges that
Kokosing' s failure to guard the rebars was a violation of section 1926.701 (b), which requires
guarding ofrebars "onto or into which employees could fall." 1 At issue here is whether the
Secretary established that Kokosing's employees could have fallen onto or had access to the
unguarded rebars and whether Kokosing had knowledge of the violative condition.2
A. Employee Access
Access to unguarded rebars exists if there is a "reasonable predictability" that
employees "will be, are, or have been in" the "zone of danger." See, e.g., Capform, Inc., 16
BNA OSHC 2040, 2041, 1993-95 CCH OSHD 130,589, pp. 42,355-56 (No. 91-1613, 1994).
Here, the evidence establishes that Holley was working where he could have fallen into the
zone of danger at the unguarded rebars and, indeed, that his body fell into the zone of
danger. 3 Immediately prior to his accident, Holley was seen straddling the scaffold bracket
which he was assigned to remove and to which his safety belt was tied off. The bracket was
approximately 16-18 inches from the end of the formwork wall. Nearly flush with the end
of the wall and 22 feet below it were the two upright rows of unguarded rebars to which the
Secretary argues Holley was exposed. Obviously, the reach of an ordinary man's ann would
11n full, section 1926.701 (b) provides:
"All protruding reinforcing steel, onto or into which
employees could fall, shall be guarded to eliminate the hazard of impalement."
2To establish a violation of a standard, the Secretary must show that the standard applies, that
it was not complied with, that employees had access to the violative conditions, and that the
employer knew or could have known of the conditions with the exercise of reasonable
diligence. Astra Pharmaceutical Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD
125,578, pp. 31,899-90 (No. 78-6247, 1981), aff'd, 681 F.2d 69 (1st Cir. 1982). This
standard does not, as Kokosing argues, require the Secretary to establish a "significant risk"
that an employee would be "realistically" exposed to an impalement risk.
3We limit our discussion to Holley inasmuch as the record indicates that his assigned work
was typical of the work that Kokosing needed to perform in the vicinity of the unguarded
rebars on the day of the accident.
3
cover the short distance of only approximately 16-18 inches from the scaffold bracket to the
zone of danger above these unguarded rebars. Moreover, a photograph taken on the day of
the accident by Anthony Lowe, the Secretary's compliance officer, shows that Holley's
blood on the concrete below almost extended into the front rebar row.
The photograph also shows the scaffold bracket that Holley had detached from the
wall immediately prior to his fall. This bracket, which is shaped like an open triangle,
became impaled on an unguarded rebar in the front row when Holley fell. Garry V. Curren,
Kokosing's safety director, testified that Holley "still was secured to the scaffold bracket
with his rebar chain assembly which he had secured himself to" when Curren arrived at the
scene. Although other witnesses suggested in their testimony that Holley's body was
somewhat farther away, Holley's torso could not have been farther than 18 inches (the length
of his rebar chain assembly) from where the scaffold bracket became impaled on an
unguarded rebar. Moreover, one or both of Holley's arms or legs could have fallen closer
than 18 inches.
To counter this evidence that Holley could have fallen onto or into the unguarded
rebars, Kokosing offered the testimony of Douglas Ruth, an engineering consultant with
expertise in accident reconstruction, physics and force analysis. Ruth explained t'iat "[i]t is
whatever forces [that] are acting on him at the instant he is released that is going to determine
his trajectory and where he lands.''4 According to Ruth, Holley "can go straight down, he can
go back slightly, and he can go off to one side or the other, depending on how he is pushing
with his feet because whatever forces were acting on him at the moment his support let go[]
4We reject Kokosing's claim that the unguarded rebars were "behind" the wail. The
photographs show that two rows of unguarded rebars were nearly flush with the end of the
wall and only 3-4 inches back from its face. We thus adopt Judge Frye's finding that
unguarded rebars were "located within inches of the southern edge of the west wall."
4
are the only forces that can cause him to move in one direction or another."5 Ruth testified
that Holley could "reach out with his arms" as he fell, yet Ruth did not take into account that
Holley's arms could have extended approximately 2-3 feet from his shoulders and Holley's
legs could have extended approximately 2-3 feet from his hips. Again, because Holley's
torso was only 18 inches away from the scaffold bracket when it fell into the unguarded
rebars, a hand or a foot could have been impaled. When the Secretary promulgated section
1926.701(b), he indicated an intent to include instances where only a part of an employee's
body is above unguarded rebar and exposed to the impalement hazard. See 53 Fed. Reg.
27,612, 22,618 (June 16, 1988). Compare Early-Massman, 7 BNA OSHC 1534, 1537-38,
1979 CCH OSHD, 23,732, p. 28,779 (No. 15721, 1979) (violation of§ 1926.700(b)(2),
predecessor to cited standard, exists if "unprotected rebar was within striking distance of any
part of the fallen employee's body"). We therefore find that the Secretary's evidence
regarding the distances and dimensions pertinent to Holley's fall establishes that part of
Holley's body could have fallen onto or into the rebar in violation of section 1926.70l(b).
B. Employer Knowledge
We also find that, with the exercise of reasonable diligence, Kokosing could have
known of the violative condition. There is no direct evidence that Kokosing personnel knew
that the rebar was uncovered, but Compliance Officer Lowe testified that he observed the
5Curren testified that Holley and the scaffold bracket ''were rotating" when Holley ''went off
the wall with it," that "centrifugal force from his body rotating around" the scaffold bracket
caused it to be "swung forward into the rebar," and that Holley's 18-inch chain attached to
it "grabbed him and sucked him closer to the rebar than he would have [fallen]." Relying on
this testimony, Judge Frye found that Holley could as easily have landed in the rebar as the
scaffold bracket did. On review, Kokosing argues that this finding is unsupported by the
record as a whole showing that Holley's body would have been the central mass with the
scaffold bracket swinging around it. We have been unable to find any such testimony, but
we agree that the overall sense of the record is that Holley would have fallen straight down
or backward. Therefore, we set aside the Judge's finding that has Holley inevitably rotating
toward the wall.
5
unguarded rebar in plain view when he entered the work area to conduct his inspection and
that it would have been in plain view ofKokosing's employees because the work area was
"traveled." Eric E. Willey, Kokosing's General Carpenter Foreman testified that various
crews were in the general area. David R. Jarvis, a Kokosing carpenter on the same crew as
Holley, testified that, at some time during the 4½ hours before Holley's accident, Willey was
"in one part" of the disassembly crew's area. The conspicuous location, the readiiy
observable nature of the violative condition, and the presence of Kokosing's crews in t.'le
area warrant a finding of constructive knowledge. See Atlantic Battery Co., 16 BNA OSHC
2131, 2166 n.56, 1993-95 CCH OSHD 1 30,636, p. 42,482 n.56 (No. 90-1747, 1994).
Compare Capform, 16 BNA OSHC at 2045, 1993-94 CCH OSHD at p. 42,360 (work on
same floor as "readily apparent" violations). Kokosing's failure to instruct its carpenters to
report unguarded rebars is also decisive. Pace Constr. Corp., 14 BNA OSHC 2216, 2222,
1991-93 CCH OSHD 129,333, p. 39,432 (No. 86-758, 1991) (failure to instruct employees
not to work on unguarded balcony).6 Accordingly, we find constructive knowledge and
affrrm the citation item, as did Judge Frye.
C. Penalty
Judge Frye found that the gravity of the violation was low in view of the relatively
low likelihood of falling onto unguarded rebars located at an end of a wall. However, he
discounted Kokosing's good faith on the basis that the company failed to ensure correction
of an easily discoverable condition. Kokosing was large in size (over 250 persons) and had
a prior history (two serious items and one willful item at another jobsite). Judge Frye
6W e found no evidence of the daily worksite inspections referred to by Kokosing. The
testimony cited by Kokosing only refers to daily inspections of equipment such as safety
belts. Foremen had inherent responsibility for day-to-day safety, but General Carpenter
Foreman Willey only made systematic safety inspections on a weekly basis. There is also no
evidence that Kokosing instructed the crews to examine the work area at the sta..--t: of each
shift and report observable hazards throughout the shift.
6
assessed $4,250 for a serious violation. The parties do not dispute the judge's assessment,
and we find that it is appropriate based on the evidence pertaining to the relevant factors in
section 17G) of the Act, 29 U.S.C. § 666G). We therefore adopt the judge's assessment.
II. Accessing Formwork Walls Without Fall Protection
The Secretary alleged that Kokosing exposed its carpenters to fall hazards in violation
of the general duty clause, section 5(a)(l) of the Act.7 The exposures took place when the
carpenters climbed fonnwork walls without fall protection, such as lifelines and safety belts,
scaffolds or ladders. Kokosing's carpenters climbed the fonnwork walls by holding onto any
available vertical beams attached to the walls and by stepping on any available horizontal
beams. Wherever such beams were unavailable, Kokosing's carpenters simply climbed the
fonnwork itself- on the fonnwork's steel ''webs" or "webbing." The formwork at issue
here was Symons Steel- Ply, a lightweight variety consisting of steel webbing approximately
1½ to 2 inches deep attached to plywood. The vertical and horizontal beams used to reinforce
the Symons Steel-Ply added approximately 2 inches to the depth of the webbing.
To establish a violation of the general duty clause, the Secretary must show that (1)
a workplace condition or activity presented a hazard, (2) the employer or industry recognized
it, (3) it was likely to cause serious physical harm, and (4) a feasible and useful means of
abatement existed by which to materially reduce or eliminate it. See Waldon Healthcare
Center, 16 BNA OSHC 1052, 1060, 1993-95 CCH OSHD130,021, p. 41,151 (No. 89-2804,
1993). Judge Frye found the Secretary's evidence insufficient to establish three of the four
elements of proof-the alleged fall hazard's existence, its recognition, and the feasibility
7Section 5(a)(l), 29 U.S.C. § 654(a)(l), provides:
"Each employer shall furnish to each of
his employees employment and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious physical harm to his
employees.
7
of abating it. 8 We find that the Secretary established all elements of a§ 5(a)(l) violation
except feasibility of abatement.
A. Existence of a Fall Hazard
There is abundant evidence in th.is case to establish that the practice of climbing
formwork without fall protection posed a hazard. 9 First, there are three different standards
that describe the practice of climbing formwork without fall protection as a hazard. A
standard published by the American National Standards Institute ("ANSI"), ANSI Al0.9-
1982, adopted in 1982 and entitled "Construction and Demolition Operations - Concrete
and Masonry Work - Safety Requirements," states: "When the forming and stripping
operations ... cannot be done from the floor, ground, or other solid construction, ladders,
scaffolds, or other approved means of access shall be used." ANSI Al0.9-1982, 17.4.4. 10 A
guideline published by the Scaffold, Shoring and Forming Institute ("SSFI") in a publication
entitled "Guide to Safety Procedures for Vertical Concrete Formwork," 11 states, "Do not use
form panels as a ladder." Guide at§ 4.13. According to Richard F. King, the Secretary's
8Sufficient proof of the likelihood of serious physical harm was found by Judge Frye and is
not at issue on review.
9Judge Frye relied on Kastalon, Inc., 12 BNA OSHC 1928, 1932, 1986-87 CCH OSHD
, 27,643, p. 35,975 (No. 79-3561, 1986), to fault the Secretary for failing to show that "falls
were sufficiently likely to occur so that they should be considered a hazard." We disagree.
As we noted in Waldon, 16 BNA OSHC at 1060 & n.5, 1993-95 CCH OSHD at p. 41,153
& n.5, the Commission will consider whether or not a condition is hazardous so long as it can
occur under "other than a freakish or utterly implausible concurrence of circumstances."
1°1be parties do not dispute that "other solid construction" means something other than the
formwork wall itself. At issue is whether "other approved means of access" excludes
climbing the webbing ofthe formwork. ANSI defines "approved" as"[s ]anctioned, endorsed,
accredited, certified, or accepted by a duly constituted and recognized authority." ANSI A-
10.9,, 2.
11 The photocopy in the record does not show a date of publication, but King testified without
rebuttal that it existed in the early 1980's.
8
expert as to fall protection in use in the concrete construction industry since 1982, 12 the SSFI
guideline forbids climbing formwork. 13 These industry provisions were followed in 1986 by
a proposed OSHA standard requiring employees "on the face of formwork" to use body
belt/harness systems, safety net systems, "or positioning device systems." This standard
became effective on August 9, 1994. 29 C.F.R. § 1926.50l(a)(5) (of "Subpart M- Fall
Protection.") 14 In addition, Kokosing's Safety Officer, Joseph Sellers, conceded in his
testimony that fall hazards do exist when employees access vertical formwork without fall
protection, and Kokosing carpenter Jarvis testified, "as you go along, you learn the kind of
work that we do, [that] you have certain hazards." We therefore find that the practice of
climbing formwork on its beams and webs without using fall protection presented a hazard.
B. Hazard Recognition
Hazard recognition may be shown by either the actual knowledge of the employer or
the standard of knowledge in the employer's industry- an objective test. Continental Oil
Co. v. OSHRC, 630 F.2d 446,448 (6th Cir. 1980). See also Inland Steel, 12 BNA OSHC
12From February 1982 through June 1993, when he testified in this case, King was Black and
Veatch's Manager of Safety and Health on power plant construction projects around the
nation involving numerous independent contractors performing concrete construction. Black
and Veatch is a large Kansas City engineering-architectural firm with approximately 30 to
50 projects and 100 to 140 independent contractors at any given time.
King believed that§ 4.13 must be read with the next section,§ 4.14, which states: "If using
13
scaffold bracket walkways is not practical, personnel must be protected against falls by
means of safety belts and lanyards attached to components having adequate strength to safely
support the imposed loads, or by safety nets or other equivalent protection."
Judge Frye interpreted the "or" in this list of protection systems to mean that the first two,
14
which protect moving/stationary employees, may be omitted in favor of the third one, which
only protects stationary employees. However, the standard requires that "[e Jach employee
on the face of formwork ... shall be protected from falling 6 feet or more ...." 29 C.F.R.
§ 1926.501(a)(5). The listed methods of fall protection are ways to comply with the
standard's command. Therefore, we reject the judge's interpretation.
9
1968, 1970, 1971 & n.4, 1986-87 CCR OSHD 127,647, pp. 35,996, 35,998 & n.4 (No.
79-3286, 1986) (necessity for proof of"a hazard that is recognized as such by the employer"
or by "general understanding in the [employer's] industry"). 15 Industry standards and
guidelines such as those published by ANSI are evidence of industry recognition. See
generally, Cargill, Inc., 10 BNA OSHC 1398, 1402, 1982 CCR OSHD 125,935, p. 32,486
(No. 78-5707, 1982).
The two industry standards adopted prior to the citation in this case and introduced
by the Secretary are compelling evidence that Kokosing's industry recognized the hazard of
climbing formwork without fall protection. King, the sole witness who was a member of the
ANSI committee in charge of providing interpretations of ANSI Al0.9-1982, gave
unrebutted testimony that climbing formwork without fall protection is not permissibie under
the 1982 ANSI standard because its language "other approved means of access" only refers
to "lifelines, double lanyards, mobile lift devices" or any other device that is "intended to be
climbed" or that ensures "a reasonable certainty that you [are] protected against a fall." King
also gave unrebutted testimony, based on his 1982-to-1993 experience with numerous
independent concrete contractors constructing power plants throughout the nation, t.1iat the
1982 ANSI standard is generally known throughout the concrete construction industrJ and
that climbing formwork without fall protection is not acceptable in the industry.
King also testified on the basis of his experience that the concrete construction
15Some court decisions, to which the Secretary refers on review, have held that a fall hazard
can be so obvious that it may be deemed recognized without reference to industry practice
or actual recognition. Tri-State Roofing & Sheet Metal, Inc. v. OSHRC, 685 F .2d 878 (4th
Cir. 1982) (unguarded platform 40 feet above concrete floor); Austin Bldg. Co. v. OSHRC,
647 F.2d 1063 (10th Cir. 1981) (welder "balancing with each foot on a narrow railing");
Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980) (risk of serious injury and no fall
protection equipment provided). However, in Southern Ohio Bldg. Sys., Inc. v. OSHRC, 649
F.2d 456, 460 (6th Cir. 1981), the court held the general duty clause enforceable for an
obvious hazard only where "the particular activity referred to in the evidence" violated "a
recognized standard of the industry."
10
industry knows that the activity is forbidden. Kokosing witnesses asserted that the SSFI
guideline only forbids laying a form panel at an angle and climbing it as a ladder, but Judge
Frye rejected this view as "implausible" because "the configuration of single formwork
panels does not seem to be conducive to use as a short step ladder." We agree, in view of
King's testimony that he had observed a variety of fall protection devices in use on several
kinds of formwork at power plant construction worksites around the nation. King testified
that, instead of climbing the beams and webbing of the formwork walls, the employees used
"drop lines, vertical drop[] lines, horizontal lines, retractable lifelines," "double lanyards,
double rebar hooks," and in "one application [they] used safety nets."
We also find that the OSHA standard itself, which was proposed prior to the
inspection in this case and which advocated protection for all employees on fonnwork, is
evidence that safety officials and other individuals familiar with the industry recognized the
hazard at that time. Cf General Dynamics Land Sys. Div., Inc., 15 BNA OSHC 1275, 1281-
82, 1991-93 CCH OSHD ,r 29, 467, p.39, 753 (No. 83-1293, 1991) (Secretary's draft
standard is "instructive in determining the general consensus of what constitutes a confined
space"), ajf'd, 985 F.2d 560 (6th Cir. 1993). 16
Kokosing did not introduce any industry standards or guidelines to show industry
acceptance or approval of climbing vertical formwork without fall protection. Kokosing
16Kokosing was not unfamiliar with the use of fall protection on fonnwork. Prior to the
inspection in this case, Kokosing worked on a project in East Liverpool, Ohio, that required
fall protection wherever feasible, including on or at formwork walls. Kokosing was only
allowed to work without fall protection on Symons Steel-Ply there because, according to
Kokosing witnesses, Symons advised that lifelines could not be installed on this one type of
light-weight formwork. Also, Kokosing General Carpenter Foreman Willey's testimony
indicates that he or Kokosing did have an informal policy or practice of using feasible fall
protection on or at formwork walls prior to the 1992 inspection. Willey testified that "on
previous jobs, and in situations where we could, we have implemented it [fall protection such
as lifelines and safety belts], yes."
11
relied instead on witnesses who focused primarily on practices with respect to Symons Steel-
Ply in the State of Ohio. For example, Kokosing Safety Director Curren testified that in
driving 50,000 to 60,000 miles per year throughout Ohio to various projects he had noticed
other contractors accessing Symons Steel-Ply without fall protection. Similarly, carpenter
Jarvis testified that his prior employers accessed Steel-Ply without fall protection. This
testimony is strong evidence of the industry practice in Ohio when Symons Steel-Ply is used.
However, because, as we discuss below, Kokosing argues that the fall protection methods
that are otherwise feasible may not be feasible where Symons Steel-Ply is employed, this
evidence regarding the absence of fall protection does not necessarily mean that a hazard is
not recognized where Symons Steel-Ply is climbed without fall protection. Also, the
testimony ofKokosing's witnesses does not address recognition of the hazard on other types
of formwork, and it does not provide the nation-wide industry perspective afforded by the
safety standards for the industry and by King's testimony. Thus, Kokosing's evidence
appears to be more relevant to our examination of the feasibility of fall protection on Symons
Steel-Ply than to industry recognition of the hazard. We therefore find that this record,
particularly King's testimony ofhis experience with concrete industry contractors throughout
the nation, establishes that Kokosing's industry recognizes that moving around on formwork
walls without fall protection is a hazard. 17
17Also, Compliance Officer Lowe, testified that he visited a carpenters' union training center
prior to the 1992 inspection in this case and observed fall protection on formwork used for
training in fall protection. We rely on this testimony, as it was unrebutted. Jarvis, who
claimed that he never received such training, admitted that he never went to the training
center. We do not rely on Compliance Officer Medlock' s testimony about a State of Ohio
slide presentation showing fall protection on formwork because, insofar as this record shows,
it was not available prior to the 1992 inspection in this case. We also give little weight to his
other testimony regarding recognition by certain employers because his experience with
employers using fall protection was very limited. See Baker Concrete Constr. Co., 17 BNA
(continued... )
12
C. Feasibility
The Secretary posited that Kokosing should have addressed the fall hazard by use of
personal protective equipment for tying off, scaffolds, or ladders.
The feasibility of using personal protective equipment largely turns on whether it was
feasible to use Steel-Ply or some other substantial structure at the worksite as an anchor to
tie off to. At best, however, the evidence on this point is in sharp conflict. Compliance
Officer Medlock's testimony introduced a pmduct report entitled "STEEL-PLY SAFETY
EYE" that Symons published in 1979. It suggested that a Symons safety eye could provide
a safe method of attaching safety belts and lifelines to Steel-Ply formwork, and Medlock
testified that two Symons employees had assured him that the safety eye would support such
personal protective equipment on a Steel-Ply wall. However, Kokosing's Safety Director
Curren testified that he spoke with officials at Symons who verified that the strength rating
in the 1979 report pertained only to the safety eye, not to the Steel-Ply panels to which the
eye would be anchored. Curren also said that, because Steel-Ply is so light-weight, "the
technology is not there and the engineering is not there" to adapt lifelines to it. Kokosing's
Safety Officer Sellers and Kokosing' s General Carpenter Foreman Willey, as well as Curren,
testified that Symons endorses climbing the Steel-Ply panels and does not recommend
lifelines. The Secretary did not introduce anyone from Symons as a witness to clarify the
situation. In fact, the judge gave little weight to the product report and related evidence
because he found that the varying interpretations attributed to Symons were in conflict and
that neither party attempted to resolve the conflict by calling a Symons representative as a
witness. We agree with the judge's reasoning. Determining the limits of Symons Steel-Ply
continued)
17( •••
OSHC 1236, 1238 n.5, 1993-95 CCH OSHD 130,768, p. 42,766 n.5 (No. 93-606, 1995).
One company on which he relied, Baker Concrete, actually received a citation for lack of fall
protection in 1993. Danis, another company on which he relied, only adopted its fall
protection rule in March 1993, after the inspection in this case.
13
was critical to determining whether tying off might be feasible. Tne Secretary's failure to
resolve the issue severely limits his case.
King did testify that he had seen lifelines and other such personal protective
equipment on Steel-Ply at the projects he had supervised around the nation, but it is clear that
he had difficulty distinguishing Steel-Ply from other types of formwork that are capable of
supporting such personal protective equipment. In short, we cannot credit his assertions that
it was Steel-Ply on which he had observed safety belts and lifelines. Compliai,ce Officer
Lowe, who had never seen lifelines on any kind offonnwork, not to mention Steel-Ply, was
unable to add anything substantial in this regard. King and Medlock posited that nearby
concrete structures might have served as anchors - but only if they could support 5,400
pounds 18 - and neither of them knew the capacity of the structures. As Curren testified, it
could only be done "[i]f the concrete ha[s] the tonnage available and it [is] of substantial
strength to hold it." On review, the Secretary claims that this testimony "does not explain
why, once the concrete has been poured and cured, the concrete wall would not provide
sufficient support." However, inasmuch as the burden was on the Secretary to pursue the
concerns Curren raised, 19 we are unable to find that Kokosing could have installed the
recommended personal protective equipment on or in the vicinity of the Steel-Ply wall where
the violation occurred in this case.
1829 C.F .R. § 1926.104(c) among the Secretary's standards regarding "Safety belts, lifelines,
and lanyards" requires that lifelines consist of manila rope or its equivalent having a
"minimum breaking strength of 5,400 pounds," indicating that any structures to which
lifelines are attached would have to be capable of supporting 5,400 pounds.
19The Secretary had the burden of rebutting Kokosing's testimony. Under the general duty
clause, if a proposed abatement method creates additional hazards rather than reducing or
eliminating the alleged hazard, the citation must be vacated for failure to prove feasibility;
it is not the employer's burden to establish an affirmative defense of greater hazard. Royal
Logging Co., 7 BNA OSHC 1744, 1751, 1979 CCH OSHD ,I 23,914, pp. 28,997-98 (No.
15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981).
14
The record also fails to show that scaffolds were feasible in the relatively small
working space, which was inside of U-shaped formwork. Lowe and Medlock testified that
Kokosing could have operated mobile scaffolds in the area that measured 1S feet by 7- i O
feet. Curren testified, however, that the working space at the formwork was too obstructed
and congested to use either mobile scaffolds or aerial lifts. Willey and Sellers said much .
same thing.
In proposing ladders as a feasible means of abatement, the Secretary relied on
provisions for their use as fall protection in t.li.e ANSI and SSFI standards and on the
testimony of his compliance officers and his expert witness that ladders have been used in
certain instances involving formwork. This evidence is sufficient to establish a prima facie
case of feasibility as to ladders. However, we find that Kokosing rebutted this prima facie
showing with detailed testimony of the difficulties encountered in using ladders at this
worksite. For example, Willey, Kokosing's general carpenter foreman, testified on the basis
of his experience as a general carpenter foreman that ladders would be "awkward and
cumbersome" and "impossible to use ... in some cases ...." He felt "more secure climbing
[the formwork webbing] vertically ... and work[ing] across [as] opposed to coming up a
ladder and having to come around that ladder to get onto the forms." Kokosing Safety Officer
Sellers found climbing a ladder less safe than climbing the webbing and beams of a
formwork wall because "I can get a firm grip on them. [The formwork wall] is not going to
be dislodged by traffic below." See supra note 19. Carpenters Union Stewaid Jarvis testified
that he felt "more comfortable if my hands are gripping something than leaning out off a
ladder." The Secretary's compliance officers and his expert witness did testify that ladders
have certain beneficial features that are lacking on the formwork beams and webbing, such
as textured rungs, but their testimony was very general. It did not address the problems with
15
the use of ladders raised by Kokosing. 20 We therefore fmd that in this case the Secretary
failed to establish a feasible method of fall protection for Kokosing's employees moving
around on formwork.
Accordingly, the Secretary having failed to establish t.1ie feasibility of abatement, we
vacate the item alleging a violation of section S(a)(l) of the Act.
20We note that it appears ladders play no part in section 1926.S0l(a)(S), the formwork
provision of the Fall Protection standard in Subpart M that was promulgated subsequent to
the citation in this case. Ladders are not one of the three abatement methods listed there for
formwork. Nor are they mentioned elsewhere in that subpart as an alternate method of
protection for use on formwork.
16
Order
We affirm the citation item alleging a serious violation of 29 C.F.R. § 1926.701(b)
and we assess a penalty of $4,250. We vacate the citation item alleging a violation of29
U.S.C. § 654(a)(l).
~ani E. :l)gU10enn
Stuart E. Weisberg --;::;
Chairman
~~
Commissioner
Daniel Guttman
Commissioner
Dated; December 20, 1996
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:
COM (21121606-6100
FTS(202I
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2596
KOKOSING CONSTRUCTION CO., INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE'S DECISION
The Administ:Tative Law Judge's Report in the above referenced case was
docketed with the Commission on September 8, 1994. The decision of the Judge
will become a final order of the Commission on October 7, 1994 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 by the Executive Secretary on or before
September 27, 1994 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.9i.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secret;uy
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 Litigation
Office of the Solicitor, U.S. DOL
Room S4004 _
200 Constitution Avenue, N.W.
Washington, D.C. 20210
H a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial litigation will represent the Department of Labor. Any p ~
having questions a6out review rights may contact the Commission's Executive ./
Secretary or call (202) 606-5400. ·'
FOR TIIE COMMISSION
Date: September 8, 1994
tt: !::i;t.
Executive Secretary
/.Jrlf
DOCKET NO. 92-2596
NOTICE IS GIVEN TO TIIB FOILOWING:
Daniel J. Mick, Esq.
Counsel for Regiorial Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Michael Holman, Esq.
Bricker & Eckler
100 S. Third Street
Columbus, OH 43215
John H. Frye, m
Administrative Law Judge
Occupational Safefy and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00103344537:05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. Docket No. 92-2596
KOKOSING CONSTRUCTION
CO. INC.,
Respondent.
Appearances:
Christopher J. Camey, Esquire Michael S. Holman, Esquire
Office of the Solicitor Sarah J. DeBruin, Esquire
U.S. Department of Labor Bricker & Eckler
Cleveland, Ohio Columbus, Ohio
For Complainant For Respondent
BEFORE: ADMINISTRATIVE LAW JUDGE JOHN H FRYE, III
DECISION AND ORDER
INTRODUCTION
This matter is before the Commission pursuant to§ lO(c) of the Occupational Safety
and Health Act of 1970 (29 C.F.R. § 651 et seq.), hereinafter referred to as the Act.
Respondent is an employer engaged in a business affecting interstate commerce as defined
by§ 3(5) of the Act and has employees as defined by§ 3(6) of the Act (Answer ,I 2).
Between March 20 and April 10, 1992, Occupational Safety and Health
Administration (OSHA) compliance officer Anthony Lowe conducted an inspection at
Respondent's Jackson Pike Wastewater Treatment worksite in Columbus, Ohio. Mr. Lowe
began his inspection of the Jackson Pike site in response to a report of the death of a
Kokosing employee, Dwight Holley. On the morning of March 20, 1993, Mr. Holley fell to
his death while removing a scaffold bracket from the face of the Symons Steel-Ply panel1
(Tr. 74, 76, 183-84, 190-91) to which he had tied his safety belt (Tr. 195).2 As a result of
the inspection, Respondent was issued two citations:
1. Serious Citation No. 1, Item 1, alleges a violation of 29 C.F.R. §
1926.20(b)(l) in that Kokosing did not maintain an adequate accident prevention program
with respect to employees' activities on Symons Steel-Ply concrete formwork;
2. Willful Citation No. 2,3 Item 1, alleges a violation of 29 C.F.R. §
1926.701(b) in that Kokosing failed to guard protruding concrete reinforcing bars (rebars)
onto which employees might fall; and
3. Willful Citation No. 2, Item 2, alleges a violation of 29 C.F.R. §
1926.l0Sl(a), or alternatively § S(a)(l) of the. Act, the General Duty aause,4 in that
Kokosing failed to provide fall protection systems in lieu of stairways or ladders on the
Symons Steel-Ply concrete formwork.
On April 6, 1993, I granted Respondent's Motion for Partial Summary Judgment with
respect to the alleged violations of§ 1926.20(b)(l) set forth in Citation 1, Item 1, and §
1Mr. Holley was later found to have had used marijuana shortly before his accident (Tr. 586).
2The wall of the Symons Steel-ply form panel upon which Mr. Holley was working was approximately
twenty-four to twenty-six feet high (Tr. 190), and the scaffold bracket was located about twenty-two feet off
the ground and approximately sixteen to eighteen inches in from the edge of the formwork (Tr. 190, 194).
3By Motion dated December 28, 1992, the Secretary amended his Complaint to allege, in the alternative,
that Citation No. 2 was a Serious Citation within the meaning of§ 17(k) of the Act.
41:be § S(a)(l) allegation was also added by the December 28 motion.
2
1926.1051(a) set forth in Citation 2, Item 2. I held a hearing on Citation 2, Item 1, and the
alleged violation of§ 5(a)(1)5 set forth in Citation 2, Item 2, in Columbus, Ohio on June
28-30, 1993.
BACKGROUND
Respondent, Kokosing Construction Company, Inc., is a large general construction
contractor headquartered in Frederickstown, Ohio (Tr. 33-35, 458). In March, 1992,
Kokosing was engaged in renovation work at the Jackson Pike Wastewater Treatment
Facility in Columbus, Ohio (Tr. 34-35). The work involved the construction of concrete
walls, tanks and decking (Tr. 35). Concrete formwork was used in the wall construction
process in order to retain and shape the concrete walls being poured (Tr. 36). Among
others, Kokosing employed Symons Steel-Ply formwork, Symons Versi-Form formwork and
a plate girder system of formwork at this worksite (Tr. 37).6 Concrete forms used in this
construction ranged from six inches to between 38 and 40 feet high (Tr. 37). Most of the
forms were 26.5 feet high (Tr. 36).
Symons Steel-Ply form.work is a common type of form.work employed in the concrete
construction industry (Tr. 336-337). Symons Steel-Ply formwork consists of individual
plywood panels surrounded by steel ''webbing." The steel webbing, which protrudes out
approximately one and three-quarter inches from each panel, provides support to the
5On June 16, 1993, the Secretary moved to amend the alleged violation of the general duty clause by
suggesting ladders as an additional means of abating the alleged fall hazard.
"There are a number of concrete formwork manufacturers, including Symons, Redi-Radius and Efco (Tr.
55). A plate girder system is composed of parts from different formwork manufacturers (Tr. 37).
3
formwork panels (Tr. 53). Forms are constructed on the ground by connecting individual
panels together into so-called "gangs" with pins and wedges. Further support and rigidity
for a formwork gang is provided by ''walers" and "strongbacks" (also referred to as
"stiffbacks"). Walers are horizontal members consisting of two by four or two by six lumber
that run the length of a formwork section (Tr. 39). Strongbacks are steel members that run
vertically the height of a formwork section (Tr. 40). Once a gang of panels is connected
together, it is set in place by a crane (Tr. 42-43).7
Although a substantial number of pins and wedges are used to connect the plywood
panels together on the ground, once a gang section is placed, it is necessary to insert more
pins and wedges for added support (Tr. 44-45). This process is commonly referred to as
"pinning" (Tr. 44, 48). Once the concrete is poured and set, the formwork sections are
removed from the poured wall. The process of removing the concrete formwork is
commonly referred to as "stripping" (Tr. 45). The stripping process necessitates the removal
of many of the pins and wedges on the formwork section prior to the removal of the section
from the poured concrete wall (/a). Pinning and stripping operations are performed by
carpenters.
Concrete is poured to form a wall only after the formwork sections are flown into
place and sufficientiy secured. laborers, as opposed to carpenters, perform the task of
pouring the concrete from scaffolding affixed to the top of the formwork (Tr. 48). The
scaffolding is constructed and removed by the carpenters during the pinning and stripping
operations (Tr. 48-50).
7 For each wall that is poured, two individual gangs are required. These are connected by wall ties (Tr. 47-
48).
4
Respondent's carpenters routinely climb the formwork during pinning and stripping
operations (Tr. 45). Typically, they climb the formwork in the vicinity of strongbacks and
move across the formwork section to install or remove pins, wedges, and scaffolding (Tr. 52).
While climbing, the carpenters hold onto the strongbacks, where possible, and position their
feet on the webs or walers (Tr. 116). In the absence of a strongback, the carpenters hold
onto the webs (Tr. 117).
As a method of fall protection, Kokosing provides carpenters with a safety belt
equipped with an 18 inch rebar chain assembly and a hook positioning device (Tr. 51).
However, Kokosing requires the use of this equipment only when employees are in
stationary work positions on the face of the formwork Id. While climbing and while moving
from point to point on the formwork, employees are not protected against falls (Tr. 50-51).8
Depending upon the height of the wall being formed at the Jackson Pike site, employees
were routinely exposed to falls of between ten feet and thirty feet (Tr. 45, 134-135).
On the morning of the accident, a crew consisting of Dave Jarvis, Gary Logan, and
Dwight Holley, was stripping the north and west walls from 7:00 a.m until 11:30 a.m., the
approximate time of the accident (Tr. 186). Mr. Lowe's investigation revealed that a
8Apparently, OSHA has recognized that such positioning devices are not suitable for use while moving
about on the formwork. In its Notice of Proposed Rule Making, "Safety Standards for Fall Protection in
the Construction Industry," 51 Fed. Reg. 42718 Nov. 25, 1986, OSHA defined a "positioning device
system" as a "body belt or body harness system rigged to allow an employee to be supported on an
elevated vertical surface, such as a wall, and work with both hands free while leaning backwards."
Proposed§ 1926.500, 51 Fed. Reg. at 42737. The comment on this definition states that it is a new term
intended to "identif(y] a piece of equipment used in construction which allows an employee to work with
both hands free while ... standing in such a way (such as leaning backward) that a fall could result." 51
Fed. Reg. at 42721. The commeni on proposed§ 192650l(b)(5), which would require the use of safety
nets, body belt/harness systems, or positioning device systems, states that "positioning devices are
essentially body belts which are attached by short lanyards to the work surface, and which allow the worker
to perform a job with both hands free." This comment notes that the lanyard varies in length from nine
to 18 inches. 51 Fed. Reg. at 42722
5
section of unprotected reinforced steel ( commonly referred to as rebar) was located within
inches of the southern edge of the west wall of the formwork section (G-2). Prior to falling,
Holley had been in the process of removing a scaffold bracket that was located within 18
inches of the southern edge of the west wall, about 24 feet from ground level (Tr. 184).
Holley landed in the immediate vicinity of the exposed rebar (Tr. 201 ). Although Holley was
not impaled by the unprotected rebar, the scaffold bracket that was attached to Holley's
safety belt at the time of the fall, ended up in the unguarded section of rebar (Tr. 246-247,
G-2).
DECISION
I. Alleged Violation of§ S(a)(l) -- Fall Protection
In order to establish a 5(a)(l) violation, the Secretary must prove that: 1) the
employer failed to render its workplace free of a hazard, 2) the hazard was recognized by
the employer or generally within the employer's industry, 3) the hazard was causing or likely
to cause death or serious physical harm, and 4) there was a feasible means by which the
employer could have eliminated or materially reduced the hazard. Secretary v. Waldon
Healthcare Center, 16 BNA OSHC 1052, 1058 (Rev. Comm. 1993).
A Existence of a Recognized Hazard
The Secretary has addressed the first two elements - existence of a hazard at the
worksite and recognition of that hazard by either the employer or the industry - together.
He maintains that the existence of a fall hazard while moving about on the vertical face of
formwork is clearly recognized by the industry. Thus his presentation on the existence of
6
a hazard at the worksite is subsumed within his presentation on industry recognition of that
hazard. In support of his position, the Secretary makes the following pain.ts.
1. The Compliance Officer's Testimony
The Compliance Officer, Mr. Lowe, contacted Symons, the manufacturer of
the form.work, and was told by the director of product development, Bob Flathau, that
climbing the form.work as if it were a ladder was not a safe or recommended practice (Tr.
262-263). According to Mr. Lowe, the product literature for Symons Steel-Ply form.work
recommended the use of work platforms as the preferred method of fall protection (Tr. 261-
62).
Mr. Lowe testified that at the local carpenters' union training center, he found
that the union trained its members to use scaffolds and/or ladders to access above ground
work locations on formwork (Tr. 261). According to Mr. Lowe, the training center had a
Symons Steel-Ply formwork training demonstration on site with scaffolds and ladders being
used as the method to access above the ground points on the face of the formwork (Tr.
260).
Mr. Lowe cited§ 7.4.4 of the American National Standards Institute (ANSI)
Al0.9 (1983) in support of the conclusion that Respondent's work practice was inconsistent
with safe industry practice (Tr. 256-257, G-7). Section 7.4.4 provides:
When the forming and stripping operations of formwork cannot be done from
the floor, ground, or other solid construction, ladders, scaffoids, or other
approved means of access shall be used.
However, it does not elaborate on the term "other approved means of access." At the
hearing, only Mr. King offered his opinion that climbing is noi included in the term. (Tr.
7
345-47.) While the standard clearly prefers access to the face of the form.work by means of
ladders and scaffolds, it does not affirmatively demonstrate that climbing the face of
form.work is hazardous.9
Mr. Lowe's testimony concerning his contact with Symons and the carpenters'
union is hearsay and was admitted over Respondent's objection. (Tr. 261, 262.) It is
appropriate to admit a compliance officer's hearsay testimony concerning what he or she
learned from employees and the employer in the course of an inspection of the latter's
worksite. Indeed, if compliance officers were not permitted to so testify, it would be very
difficult for them to defend decisions to issue citations. Because its representative
accompanies the compliance officer on the inspection and is privy to many if not all
conversations, the employer is in a position to protect its interests and to correct any
misinformation.
However, the admissibility of a compliance officer's hearsay testimony
concerning what he or she learned privately at a union training center and from the
manufacturer of equipment is questionable. In such a situation, in order to protect its
interest, the employer is forced to conduct discovery and call as a witness an entity which
is not a party to the litigation, may be located at some distance, and may not be interested
in furnishing information. Nonetheless, because Mr. Lowe's testimony does illuminate his
reasons for issuing the citations, it is admissible. The circumstances surrounding Mr. Lowe's
acquisition of the information he related and the fact that his testimony is hearsay dictate
'while Mr. King, testifying for the Secretary, indicated that the phrase "other approved means of access"
does not include climbing, his conclusion was based on his assumption that, to be approved, a means of
access must incorporate fall protection. (Tr. 345.) Thus, Mr. King justifies his interpretation by assuming
the ultimate issue, that a hai.ard exists for which fall protection is necessary.
8
that this information cannot be accorded the same weight normally given a compliance
officer's testimony concerning what he or she learned in the conduct of an inspection.
2. The Secretary's Expert Testimony
An industry expert, Richard King, and an agency expert, Steven Medlock,
testified that allowing employees to climb and move from point to point on the face of
vertical concrete form.work was against industry practice.
Mr. King is manager of safety and health for Black & Veatch and a member
of the ANSI A.10 committee (Tr. 329-30). King audits construction sites on a weekly basis
throughout the country (Tr. 319-324) and is familiar with the fall protection devices and
mechanisms used while performing pinning and stripping operations on vertical concrete
form.work (Tr. 331-332). He testified that safe work practice dictates the use of 100% fall
protection when working on vertical concrete form.work (Tr. 337). Citing his work
experience, ANSI A.10.9 (Tr. 345), and Rule 4.13 of the safety guidelines for vertical
concrete form.work published by the Scaffold, Shoring and Forming Institute (SSFI), King
concluded that Respondent's work practice of allowing employees to climb the formwork
without fall protection was contrary to safe industry practice (Tr. 335).10
Kokosing asserts that the substance of Mr. King's testimony does not support
the Secretary's conclusion that a recognized fall hazard exists when carpenters climb Symons
1°K.ing opined that Kokosing could have used a number of different fall protection methods such as double
safety belts and lanyards (or double hooks), vertical lifelines, horizontal lifelines, retractable lifelines, rope
grabs, scaffolds, mobile lift equipment, ladders and man baskets in conjunction with aerial lifts to ensure
that carpenters were not exposed to fall h37.al'ds ffi!). King's opinion was based on having personally
observed all of these methods at one time or another in use on vertical concrete formwork, including
Symons Steel-Ply, throughout the country (Tr. 331-32).
9
Steel-Ply panels. Kokosing is correct in that the bulk of Mr. King's testimony assumes that
a fall hazard exists and addresses means to abate it. (See Tr. 334-47.) Mr. King addresses
the question of the existence of a hazard only when comparing climbing formwork to
climbing a ladder. (Tr. 344-45.) In that discussion, he states why he views the danger of
slipping to be much greater on formwork than on a ladder.11 Nowhere in his testimony
does he address the question of whether falls have occurred from formwork with sufficient
frequency to dictate the conclusion that a hazard exists.
Kokosing attacks Mr. King's reliance on Rule 4.13 of the safety guideline
published by SSFI. That provision states: "Do not use form panels as a ladder." Mr. King
interpreted this to mean that workers should not climb up and down vertical concrete
formwork (Tr. 341, 344). Kokosing maintains that its Director of Safety, Mr. Curren, offered
a more plausible interpretation of this standard: that the standard prolubits the use of single
111n contrast, Mr. Willey, an experienced carpenter and foreman, stated that, given the choice, he preferred
to climb Symons Steel-Ply formwork rather than a ladder to reach his work:
Q (By Mr. Holman] As a carpenter, have you climbed ladders?
A Yes.
Q Have you climbed the face of the Symons Steel-Ply formwork?
A Yes.
Q If you compare your sense of safety and well being in climbing a ladder with
climbing the Symons Steel-Ply form, which do you fell safer on?
A I feel safer on the panels than I would a ladder because of its movement, or its
tlexioility and things.
Q Could you be more specific with respect to why you feel safer?
A When we're working, we cany our safety belt and our tool belt which may weigh
25, 30 pounds. If you are working on a ladder, and any extension ladder, if you've been
up them, you'll know how they bounce and move around.
If you go up the ladder and was to step off to the side or try to move, if there is
no secure place for that ladder to sit, it wants to slip and slide. Our job is climbing form,
I mean that's what we're accustomed to, I feel more comfortable on them.
Q Which is more stable, and by that I mean more secure, solid when you climb it,
the ladder of the formwork?
A The formwork.
Tr. 100-01. Mr. Sellers, Kokosing's safety officer, expressed a similar opinion (Tr. 139), as did Mr. Jarvis,
an experienced carpenter (Tr. 209-10).
10
formwork panels, propped up against an object, as a short step ladder to gain access to a
higher elevation (Tr. 144-45).12 Kokosing points to Mr. King's concession that, if the true
meaning was that the face of the formwork should not be climbed, a clearer wording of the
standard would be: "Do not climb formwork panels" (Tr. 378).
In addition, Kokosing asserts that Mr. King is not a credible expert because he:
had not observed the work practices of other contractors with respect
to climbing and moving from point to point en Symons Steel-Ply formwork or any other type
of vertical concrete formwork (Tr. 369);
could not identify Symons Steel-Ply formwork in a photograph (Tr. 383);
had never climbed concrete vertical formwork (Tr. 365);
had no training or knowledge in how to attach anchorage points to
support a fall arrest system to Symons Steel-Ply formwork, or any other type of vertical
concrete formwork (Tr. 354-55);
could not name the different types of vertical concrete formwork in use
in the construction industry, 13 let alone describe the technical feasibility of the alternative
fall protection methods suggested by the Secretary (Tr. 368);14 and
12Given that the configuration of single form.work panels does not seem to be conducive to use as a short
step ladder, this does not appear to be a plausible interpretation.
13 Mr. King's description of Symons steel formwork was only as extensive as stating that it "comes in
a variety of sizes and different widths and different lengths" (Tr. 368). He admitted that he did not know
the difference between a Symons Steel-Ply form, a Symons Maxi-form, and a Symons Versi-form (Tr. 383).
14 While Mr. King has testified as an expert in construction management, he has never before been
called upon to give an opinion in how to attach and rig fall protection systems to vertical concrete
form.work (Tr. 371).
11
misrepresented his own credentials on his resume by stating that he had
written several articles which were written by others and in which he was quoted (Tr. 362-
65).is
While I do not believe that Mr. King's error in descnbing several of the articles
as having been written by him as serious, his unfamiliarity with the details of various types
of formwork, in particular Symons Steel-Ply formwork, substantially impairs his credibility
as expert.
Mr. Medlock, like King, was qualified as an expert in fall protection (Tr. 405)
and testified that Respondent's work practice ran counter to safe industry practice. Medlock
stated that he had inspected two competitors of Respondent who were engaged in vertical
concrete formwork, Shook Construction and Baker Concrete.16 According to Mr. Medlock,
the farmer's employees were working on the face of the formwork to which they gained
access by ladders. They tied off by means of " ... a safety belt with a lanyard, or rebar hooks,
or Symons hooks once they got to that position from the ladder .... " The latter was building
15Counsel for the Secretary points out that while three of the thirty-seven anicles King identified on his
resume were not v.Titten by him, he provided the technical information and paperwork for the authors and
was quoted extensively.
16Mr. Medlock also referred to the safety manual of another competitor of Respondent, B.G. Danis (G-11,
Tr. 418), and a front page photograph of the June 3, 1993 Cincinnati Enquirer (G-10) depicting an
employee of Baker Concrete properly protected while working on the face of concrete formwork to
suppon his opinion that Respondent's work practice was inconsistent with industry practice. (Tr. 409.)
However, not only is the photograph hearsay, the copy of it in the record is not of sufficiently good quality
to reveal the details of which Mr. Medlock spoke. Finally, Medlock noted that the state of Ohio provides
fall protection training to contractors, free of charge, and that a portion of the training includes a slide
presentation depicting employees working from vertical concrete formwork (although not Symons Steel-
Ply) with proper fall protection (Tr. 423-25).
12
the formwork in place and using scaffolding to provide a platform from which workers had
access rather than gang forming as Kokosing did in this case (Tr. 403-404).
Despite the fact that he had recently cited Baker Concrete for permitting its .
employees to climb formwork, Mr. Medlock represented that Baker Concrete does not
permit vertical concrete formwork to be climbed.17 Mr. Medlock conducted an inspection
of Baker Concrete's worksite at the Northgate Mall in Cincinnati, Ohio, in January, 1993.
(Tr. 405.) Because Mr. Medlock obseived employees gaining access to scaffolding located
on Symons formwork by climbing the form.work, he cited Baker Concrete for a violation of
29 C.F.R. § 1926.451(a) for failure to provide an access ladder. Following the filing of a
complaint, a hearing was held and a decision issued by Judge Loye affirming this citation.18
Baker Concrete defended, in part, on the ground that " ... industry practice does not require
the use of ladders on scaffolding which is being dismantled."19 Judge Loye found that
"[w]ith management's tacit approval, employees dismantling the scaffold ... climbed formwork
webbing without fall protection."20
17
"Q [By Mr. Carney] Do you know what Baker Concrete's fall protection philosophy is with
regard respect to vertical concrete formwork?
"A [Mr. Medlock] Most definitely. Their policy and procedure is that they do not allow
vertical concrete form.work to be climbed, period." Tr.413.
18Secreta,y v. Baker Concrete Construction Co., Docket Ne. 93-0606, January 14, 1994. The Baker Concrete
decision was forwarded to me by counsel for the Secretary with the comment that the issues decided in
that case are similar to the issues in this case. This prompted counsel for Kokosing to file a ''Motion to
Exclude from Consideration and the Record Communications to the Commission and Supplemental
Authority That Were Not Presented on the Record or, in the Alternative, Motion for Leave to File Brief
on New Arguments of Fact and Law Raised by the Secretary in Off-The-Record Communication to the
Commission." Counsel's motion is based on the proposition that the communication of this decision to
me was both off-the-record and er parte. That communication was neither. The motion is denied.
19.-.. • .
- UCCISIOn, p.4.
2°necision, p.5, emphasis supplied.13Kokosing attacks the testimony of Mr. Medlock that both Baker Concrete and
Shook Construction Company do not permit carpenters to climb the face of formwork
without fall protection. Kokosing relies on the testimony of Mr. Willey, its foreman, who
stated that he has worked for Baker Concrete and also that he observed the work practices
of Danis-Shook:21 on the Jackson Pike site with respect to Symons Steel-Ply formwork (Tr.
88-90). He stated that these contractors' employees ascend and descend the formwork in
the same manner and use positioning devices of a lesser quality than those used by Kokosing
(Tr. 89-90).
Kokosing's safety director, Mr. Curren, stated that he also observed the
contractors identified by Mr. Medlock, as well as many others, using positioning devices and
safety belts on Symons Steel-Ply formwork in the same manner as Kokosing employees (Tr.
477-82).22
Mr. Jarvis, who has been employed as a journeyman carpenter since 1977, and
who has worked for contractors such as Shook, Danis-Shook, B.G. Danis, and Dugan &
Meyers (Tr. 179, 215-16), stated that every company for which he has worked performs
vertical concrete formwork in the same manner as Kokosing and uses positioning devices
with Symons Steel-Ply forms (Tr. 207, 220). The testimony of these witnesses is
corroborated by Judge Loye's decision in Baker Concrete, supra. Mr. Medlock is not a
credible witness.
21 Danis-Shook is a joint venture between B.G. Danis and Shook Construction Company.
22 Specifically, Mr. Curren testified that he observed the practices of Mayhan, a large highway
construction contractor, Rhulin, Great Lakes, Independence Construction Co., Danis and Shook, Valetta,
and Baker Concrete, who all employed safety belts with positioning devices for working on Symons Steel-
ply formwork (Tr. 477-82).
14
Even if deemed credible, like Mr. King's testimony, the bulk of Mr. Medlock's
testimony does not support the Secretary's conclusion that a recognized fall hazard exists
when carpenters climb Symons Steel-Ply paneis. Rather, the bulk of Mr. Medlock's
testimony assumes that a fall hazard exists and addresses means to abate it. (See Tr. 403-
29). Mr. Medlock addresses the question of the existence of a hazard only when discussing
the practical difficulties of climbing formwork (Tr. 413-15.)23 Nowhere in his testimony does
he address the question of whether falls have occurred from formwork with sufficient
frequency to dictate the conclusion that a hazard exists.24
23As noted in footnote 11, Kokosing introduced evidence to the contrary.
24Mr. Medlock did relate some statistical data, but the information he provided is not helpful. His
testimony is as follows.
Q [By Mr. Camey] Do you know of any statistics that have been compiled by the
Occupational Safety and Health Administration to support that position?
A I know statistics from two methods, one an article that I published, I don't know the
correct terminology, I wrote it, I am the author, which referenced statistics of fatalities in
construction related falls and there is the OSHA Occupational Database for falls.
Portions of it deal with construction and its fall fatalities from 1985 to 1989. It is a
published document of OSHA fatality information.
Q Would that be entitled •Analysis of Construction Fatalities, the OSHA Database 1985
through 1989?"
A Yes, thank you.
Q Do you recall the statistics that relate to fall protection in the construction industry?
A Yes.
Q Would you care to reiate those statistics to the Court?
A 34 percent
MR. HOLMAN: I am going to object unless they relate to falls from vertical concrete formwork.
In effect, we're talking apples against oranges. I am going to give you some examples if I need to
go further.
JUDGE FRYE: No, I don't think you need to go further. Do they relate to vertical concrete
formwork?
MR. CARNEY: There are some statistics that relate to concrete formwork.
JUDGE FRYE: All right, well, let's confine ourselves to that then.
MR. CARNEY: Your Honor, for the record, we're talking about fall hazards in the construction
industry. It is not the Secretary's intention to have this limited to vertical concrete formwork.
The fall protection devices that are out there, the hazards associated with falls in the
vertical concrete formwork, they are no different than working --
JUDGE FRYE: All that is before me is a vertical concrete form, a Symons form and I am not
particularly interested in hearing statistics that apply to other sorts of hazards such as falls from
(continued...)
15
The Secretary suggests that Kokosing's safety audit records suggest that it
recognized that its work practice did not comply with industry standards. A March 16, 1992,
safety check of Mr. Willey's operation at the Jackson Pike worksite noted that forms were
not to be used as ladders and that shorter ladders for better access to work areas were
needed (G-S). Mr. Sellers, who performed the safety check, testified that the need for
shorter ladders was not related to access to the vertical form.work (Tr. 142).
3. Discussion
The Secretary's case for the existence and recognition of a hazard is
overshadowed by the fact that, at least in 1986, OSHA recognized that the use of positioning
devices for fall protection was a suitable and accepted practice in the vertical concrete
formwork industry. The 1986 Proposed Rule regarding fall protection would require
employers to protect employees "on the face of formwork" by a body belt/harness system,
24 ( ...continued)
scaffolds and things of that nature.
We're concerned here about a Symons form that was climbed without any fall protection.
I think you had better limit your presentation to falls from vertical concrete form.work.
BY MR. CARNEY:
Q Mr. Medlock, are you famiUar with the statistics as they relate to the concrete form.work
industty?
A Yes.
Q How many -- do you have a percentage of the falls in the construction indust:ry for the
time period 1985 through 1989 in the concrete form.work industty?
A That relate to what?
Q Falls and deaths?
A Fall fatalities is three percent.
Q Ofall-
A Fatalities from falls from concrete form.work.
JUDGE FRYE: Is three percent of what?
THE Wl1NESS: Three percent of the fatalities from 1985 to 1989, three percent of the fatalities
relating to falls were in concrete form.work -
JUDGE FRYE: All right, three percent of all of the fatalities from falls are related to falls from
concrete form.work?
THE WITNESS: Yes, sir.
JUDGE FRYE: All right.
MR. CARNEY: I have no further questions, Your Honor.
16
safety net system, or positioning device system. Proposed§ 1926.501(b)(5), 51 Fed. Reg. No.
227, 42718, 42737 (Nov. 25, 1986).
Proposed§ 1926.502(c) and (d) would set criteria for safety nets and body
belt/harness systems and proposed § 1926.502(e) would set criteria for positioning device
systems. These criteria make it clear that the first two systems are designed to protect
workers in all circumstances, while the last is designed to protect workers only when they are
in a stationary position, not while they are moving across the face of formwork. 25 The
Statement of Considerations accompanying the proposed rule confirms this. It notes that
Positioning devices are essentially body belts which are attached by short
lanyards to the work surface, and which allow the worker to perform a job
with both hands free. Because of the short length of the lanyard, ... OSHA
believes there is no significant fall hazard when positioning devices are used.
51 Fed. Reg. No. 227, at 42722 (Nov. 25, 1986). Given that the proposed standard requires
the use of nets, body belt/harnesses, or positioning devices by employees who are on the face
of formwork, it appears that in 1986 OSHA did not recognize that a hazard was posed by
moving about on vertical formwork without fall protection.
This case is governed by Southern Ohio Building Sysiems, Inc., v. OSHRC, 649
F.2d 456, 458-59 (6th Cir. 1981):
Both witnesses for the Department of Labor appear to have treated the
burden of the Secretary as requiring only a showing that the hazard of falling
25Proposed § 1926.502(c)(l) requires that safety nets be installed as close as possible beneath the
walking/working surface on which employees are working. Proposed§ 1926.502(d)(13) and (14) indicate
that body belt/harness systems are designed to be attached to vertical or horizontal lifelines. Proposed §
1926.502(d)(4) indicates that no more than six feet of free fall (the distance an employee may fall before
the system begins to arrest the fall - proposed § 1926.500) may be allowed by a body belt/harness, thus
providing sufficient slack to move about on formwork. In contrast, proposed§ 1926.502(e)(l) limits the
free fall permitted by a positioning device to two feet, thus severely limiting the employee's ability to move
about on the face of the formwork.
17
from an elevated workplace is likely to cause death or serious injury. There
was no attempt to show that the particular activity referred to in the evidence
and found by the administrative law judge to be a violation "working at an
eave of the roof without any fall protection" is a recognized hazard. Southern
Ohio's witnesses disclaimed any knowledge that such a hazard was recognized
by it or others in the roof construction industry. The Department of Labor
introduced no proof which could be held to satisfy the objective test of
whether such a hazard is recognized in the industry. All that was offered was
testimony by the two compliance officers that they had seen various protective
devices used in "similar construction" on several occasions. Careful
examination of the transcript reveals that "similar construction" referred to
steel structures generally without reference to the actual height and slope of
roof and other dimensions of the Southern Ohio building. The testimony of
these witnesses about serious fall accidents, lacking any details as to conditions
surrounding the incidents or their frequency, was not sufficient to support a
finding that a hazard should have been recognized. This testimony fell far
short of establishing that the roof construction industry recognized a hazard
to employees working on the eaves of a roof having a 1 inch in 12 slope,
sixteen feet above the ground, without "any fall protection."
Here, the Secretary's two expert witnesses "... treated the burden of the
Secretary as requiring only a showing that the hazard of falling from an elevated workplace
is likely to cause death or serious injury."26 With one exception, their testimony that a
hazard exists was based solely on the uncontested proposition that a fall from the places on
the formwork at which Kokosing's employees were moving would cause death or serious
injury. It did not address whether such falls were sufficiently likely to occur so that they
should be considered a hazard.27 Using the approach taken by these witnesses, one would
26See also Secretary v. Kastalon Inc. and Conap Inc., 12 BNA OSHC 1928, 1932 (Rev. Com. 1986) ("... in
order to prove the existence of a hu.ard within the meaning of the general duty clause, the Secretary
cannot merely show that there may be some degree of risk to employees. He must show, at a minimum,
that employees are exposed to a significant risk of harm.") Cf. Industrial Union Departmen't, AFL-CIO v.
American Petroleum Instuute, 448 U.S. 607,644, 100 Sup Ct. 2844, 2865 (1980) ("•.• Congress intended, at a
bare minimum, that the Secretary find a significant risk of harm and therefore a probability of significant
benefits before establishing a new standard.")
27 Cenain limited statistical data were tabulated and presented by Mr. Curren. These data tend to support
the conclusion that employees are not exposed to a significant fall hu.ard when climbing and moving
(continued. ..)
18
conclude that fall protection is required for employees using ladders to reach their work
stations on the formwork because a fall from a ladder would also result in death or serious
injury. However, the Secretary urges that ladders are a feasible means to abate the fall
hazard.
The exception concerns these witness' testimony that the construction of the
forms is such that adequate hand and footholds are not available. The webbing which the
carpenters must grasp with their hands28 and feet protrudes only one and three-quarters
inches from the plywood panel which retains the poured concrete. Consequently, these
witnesses' concluded that climbing the formwork is more hazardous than climbing a ladder.
However, this conclusion is not entitled to much weight for the following reasons. First,
aside from other considerations bearing on crechbility, while both witnesses were qualified
as experts in fall protection which arguably might include the hazards of climbing formwork,
neither had ever climbed any kind of formwork and one, Mr. King, could not identify
Symons Steel-Ply formwork. Nothing in their qualifications indicates that they have sufficient
familiarity with Symons Steel-Ply formwork that would enable them to discuss the hazards
of climbing it knowledgeably.
27 ( •••continued)
horizontally on vertical concrete formwork (fr. 505-11 ). Based upon 662,678 man-hours of vertical
concrete formwork, these data show that Kokosing has a lost-time incident rate of 1.5, compared to a
national average of 5.0, due to falls from the formwork (Tr. 506-07). Further, the accidents investigated by
Mr. Curren involving Kokosing employees were typically due to either human error or disability or
equipment failure (Tr. 508-10), not to climbing or moving horizontally on the formwork.
28As noted above, the carpenters generally ascend the formwork along a stiftback which affords a good
hand grip. However, when moving laterally, the carpenters must grip the webbing with their hands.
19
Second, Kokosing's carpenters testified that they preferred to climb the
form.work rather than a ladder. They based their conclusion on the facts that the ladder
tends to be less stable and that it is difficult to move from the ladder to the form.work. 29
These facts are undoubtedly true. The Secretary's witnesses lacked sufficient familiarity with
the nature of the carpenters' work on the form.work to address these facts intelligently. (See
Tr. 346-47, 413-15.)
The Secretary's evidence supporting recognition of the hazard involved in
climbing Symons Steel-Ply form.work is equivocal. Oearly, Kokosing does not recognize that
climbing the form.work constitutes a hazard. The evidence supporting industry recognition
comes from Mr. Lowe, Mr. King, and Mr. Medlock. Mr. Lowe's testimony concerning what
he was told by Symons and union training officials is hearsay and entitled to little weight.
Mr. King could not identify Symons Steel-Ply formwork, and as a result his testimony that
other firms employ total fall protection for their employees working on it must be
discounted. Mr. Medlock is not a credible witness. Thus, "[t]he testimony of these witnesses
about serious fall accidents, lacking any details as to conditions surrounding the incidents or
their frequency, was not sufficient to support a finding that a hazard should have been
recognized." 649 F.2d at 459. Moreover, Judge Laye, in his decision in Baker Concrete,
supra, recognized that at least Baker Concrete followed the same practice as Kokosing.
While the ANSI Standard and the SSFI Rule tend to support the Secretary's
position that a recognized hazard exist, they are insufficient by themselves to satisfy the
Secretary's burden. The ANSI Standard does not definitively address the question because
Bniey were concerned with stability because they must carry 25 to 30 pounds of tools and equipment
around their waists which causes the ladder to bounce and move around (Tr. 101, 163-64, 209-10).
20
it refers to the use of "ladders, scaffolds, or other approved means of access..." without
elaborating on what is included within the phrase "other approved means of access." Only
Mr. King testified that climbing the formwork was not an approved means of access. As
noted in footnote 9, Mr. King justified his position on the assumption that, to be approved,
a means of access must include fall protection. Mr. King assumed an affirmative answer to
the ultimate issue, does a fall hazard exist, without providing any support for that
assumption. Consequently, his testimony on this point is of little value.
The SSFI Rule addresses the issue more directly in that it states a prohibition
on the use of form panels as a ladder. However, this statement does not resolve the issue.
First, as noted above, there is a dispute between the parties over whether this prohibition
applies to climbing formwork to reach a work station on it. Second, assuming that it does
apply to that practice, it must be noted that the prohibition is contained in the section
dealing with scaffolds attached to formwork. It is conceivable that the accessing of scaffolds
by climbing the formwork might be hazardous because of considerations which are different
from those entailed in climbing the formwork. 30 Third, the Secretary provided very little
background with regard to this Rule or the Institute which promulgated it.31 Therefore,
in addition to inadequately addressing the exact meaning of the Rule, the record does not
indicate to what extent the Rule is currently followed in the industry.
30For instance, given that scaffolds are attached to stiffbacks and may well run the length of the formwork,
it might not be possible to access the scaffold from the formwork unless an opening were provided.
Whether such an opening could be provided would appear to be problematical
31Mr. King testified that the Scaffolding, Shoring, and Forming Institute is a member of the ANSI A-10
committee, that Rule 4.13 has been in existence since the early 1980s, and that the document which
contains the Rule is generally known within the industry. Tr. 340-41.
21
In light of the foregoing, I conclude that the Secretary has not met his burden of
establishing that a recognized ha7.ard exists.
B. The Ha7.ard Was Causing or Likely to Cause Death or Serious Physical Harm
The evidence established that Kokosing's employees moved about on the
formwork at heights between 10 and 30 feet without fall protection (Tr.45, 50-51, 134-35).
The Secretary states that it cannot be seriously disputed that a fall from a height of more
than 10 feet can cause death or serious physical injury. Indeed, in its post trial brief,
Kokosing did not contest this fact. The Secretary has demonstrated that if the ha7.ard - a
fall - were to occur, it would likely cause death or serious physical harm.
C. There Was a Feasible Means by Which Kokosing Could Have Eliminated or
Materially Reduced the Hazard - The Parties' Positions
The Secretary maintains that feasible means to materially reduce or eliminate
the fall hazard existed. King testified that Kokosing could have employed double safet-1 belts
and lanyards (or double hooks), vertical lifelines, horizontal lifelines, retractable lifelines,
rope grabs, scaffolds, mobile lift equipment, ladders, or man baskets in conjunction with
aerial lifts, and that he had observed all of these applications utilized in the field (Tr. 331-
32). The Secretary produced the product report for the Symons Steel-Ply safety eye (G-12;
Tr. 636-638) which states that the safety eye was field tested and exceeded OSHA's 5400
pound load bearing requirements. The Secretary urges that the product report corroborates
22
the testimony of Mr. King and discredits Mr. Curren's testimony that it is not feasible to
anchor lifelines to Symons Steel-Ply form.work.
Kokosing maintains that the Secretary has not presented any evidence that
supports his position that the fall protection methods he identified were technically feasible
for use with Symons Steel-Ply formwork under the conditions existing at the Jackson Pike
site. Kokosing attacks the Secretary's testimony on the grounds that neither the Compliance
Officer nor Mr. King had climbed vertical concrete formwork, and neither could descnbe
the unique characteristics of Symons Steel-Ply formwork or how these methods feasibly could
be used. Kokosing asserts that the evidence clearly demonstrates that the only feasible
method of fall protection -- the safety belt and positioning device -- was in use by Kokosing
employees.
Kokosing believes that ladders were not a feasible means of fall protection for
use with Symons Steel-Ply formwork under the cited conditions, and actually would present
a greater hazard to employees.32 Kokosing's foreman stated that ladders are cumbersome
and awkward, and that he has never used ladders when pinning or stripping vertical concrete
formwork (Tr. 61-62).
Mobile scaffolds, scissor lifts, articulating or rotating boom work platforms
were not feasible because the work area was congested, with only ten to fifteen feet between
32Kokosing's Director of Safety, Mr. Curren, testified that the use of ladders would require employees to
be"... constantly going up and down these ladders and readjusting them at every tie elevation, and also,
the reaching around the ladder ...." With respect to the last point, he testified that the OSHA standard
(29 CFR § 1926.1053(b)(S)(i)) that requires that the horizontal distance between the top support and the
foot of the ladder equal approximately one-quarter of the working length of the ladder would place the
working surface 33 inches from an employee working three feet from the top of the ladder. It would,
however, place that surface only nine inches away. See Tr. 512-13.
23
the west and east walls. Kokosing's foreman also testified that he has never used or
obseived the use of scissor lifts or other mobile lift equipment during pinning and stripping
operations on vertical concrete formwork (Tr. 61). Indeed, Mr. Curren stated that, because
this particular site was congested, it was impossible to use a rotating or articulating boom
work platform (Tr. 513).33 Additionally, he stated that, while mobile scaffolds could have
been built in the work area, they could not be moved more than six inches without becoming
obstructed by the superstructure of the formwork, the tu-nbuckles,
... or the adjacent wall (Tr.
514).
Lanyards and vertical, retractable, or horizontal lifelines were not feasible
because no anchorage points existed on Symons Steel-Ply panels for attaching them (Tr. 65),
nor were there useable anchorage points on the surrounding structures.34 Kokosing's safety
director stated that there is no engineered system or technology for attaching a lifeline
system to Symons Steel-Ply formwork (Tr. 513). Further, he stated that lifeline systems
could not be used by anchoring the system to the stiffbacks, which would not support the
5400-pound safe working load required under OSHA regulations (Tr. 519). Kokosing's
foreman stated that the use of such devices with Symons Steel-Ply formwork is dependent
upon the existence of suitable anchorage points in surrounding structures (Tr. 72-73).
33Mr. Curren stated that the only way to use an elevated work platform in the area in question would have
been to swing in a work platform on a crane; however, the area was so congested that the work platform
could not be moved around to the necessary work locations (Tr. 513-14).
34Mr. Curren determined that independent anchorage points could not be placed in the concrete decking
on the other side of the form.work wall (Tr. 587-88). Retractable lifelines would not be adequately
supported by running them up the stiftbacks and over the wall before the concrete is in place (Tr. 587-88).
Most likely, such a method is technically infeasible even after the pouring of the concrete (Tr. 587-88).
24
In response to the Symons Product Report on the Safety Eye (G-12), Mr.
Curren stated that he had telephoned Symons and verified that the 5400 pound tensile
strength applied to the clip only, not of the Symons Steel-Ply form.work to which the clip
would be anchored (Tr. 589, 652). Mr. Curren explained that while the Symons clip may
meet or exceed the 5400 pound standard, the lifeline system of which it is a part is only as
strong and secure as the weakest portion of the form system to which it is attached (Tr. 519-
22, 589). Kokosing believes that the Symons Steel-Ply form.work, comprised of plywood and
ten-gauge steel, will not withstand the 5400 pound load required by OSHA standards (Tr.
489-93).
The Secretary has failed to demonstrate that there was a feasible means of
providing fall protection to carpenters climbing Symons Steel-Ply form.work at Kokosing's
worksite. The evidence produced by the Secretary did not establish that ladders or elevated
work platforms could be used at this congested site, nor did it demonstrate that there were
suitable anchorage points for fall arrest systems.35
For the foregoing reasons, Citation 2, Item 2, is vacated.
IL Alleged Violation of 29 C.F.R. § 1926.701(b)--Failure to Guard Protruding Concrete
Reinforcing Bars
The standard in question, 29 C.F.R. § 1926.70l(b), provides that:
JS.rhe parties' evidence on the last point, to the extent that it pertained to anchorage points on the
formwork itself, is directly conflicting. These conflicts have come about in part because both parties have
cited Symons for their positions without having produced a representative of Symons to testify directly. It
is entirely possible that the parties' conflicting positions are the result of their different interpretation of
the same information. These conflicts might have been avoided had the source of the information been
presented. In any event, because it is hearsay, this evidence is entitled to little weighL
25
All protruding reinforcing steel, onto and into which employees could fall,
shall be guarded to eliminate the hazard of impalement.
The parties disagree with regard to whether an employee could have fallen onto the
protruding rebars and, if so, whether Kokosing reasonably should have been aware of that
fact.
A The Secretary's Position
In the Secretary's view, the facts demonstrate employee exposure to the cited
condition. The exposed rebar in question was within inches of the southern edge of the west
wall formwork that was in the process of being stripped on the morning of the accident (Tr.
81, 172, 199; G-2). In the process of stripping, Holley, Jarvis and Logan climbed over the
formwork (Tr.185-87). The scaffold bracket that Holley was in the process of removing at
the time of his fall was 16 to 18 inches from the south edge of the west wall of the form.work
section (Tr. 194). Although he himself was not impaled on the unprotected rebar, the
scaffold bracket that was attached to Holley's positioning device was. (Tr. 246-47, 518.)
Jarvis testified that Holley came within four feet of the exposed rebar. (Tr. 200-01.)
The Secretary argues that common sense dictates that a person working within
12 to 18 inches from the south edge of the west wall at a height of 24 feet above ground
could have fallen, at least partially, onto the exposed rebar adjacent to the edge of the wall.
Under these circumstances, the Secretary maintains that Kokosing violated 29 C.F.R. §
1926.701(b).
The Secretary also argues that, with the exercise of reasonable diligence,
Kokosing should have known of the cited condition. First, the condition was hi plain view.
Second, the condition existed the whole of the morning of the accident. Third, the crew
26
exposed to the condition had been observed less than six weeks earlier working above
exposed rebar. The Secretary believes that a prudent foreman exercising reasonable
diligence would have known of the exposed rebar and corrected the situation.
B. Kokosing's Position
Kokosing concedes that the rebar adjacent to and behind the west wall was
unguarded on the morning of March 20, 1992. It further admits that, under Kokosing's
aggressive rebar policy, the protruding rebar behind the west wall would have been covered
if observed. Kokosing takes the position that the standard requires employers to guard
rebar to eliminate the hazard of impalement when employees realistically could fall into the
protruding rebar, and argues that there was no possibility of any employees falling into the
rebar in question.
Kokosing correctly points out that the Secretary offered no evidence of employees
working directly over the protruding rebar or immediately adjacent to it. Kokosing
maintains that the Secretary's contention that its employees were exposed to a hazard of
impalement is based only upon inferences and speculation as to where employees might
have been while working on the west wall (Tr. 240-42). It points out that the conclusion that
employees working toward the edge of the formwork were exposed to an impalement hazard
is based upon Mr. Lowe's unsubstantiated and unmeasured observation that "it is obvious
by looking at [the rebar]" (Tr. 245)36 and is inferred from the spot where Mr. Holley
landed (Tr. 240).
36Mr. Lowe bas a degree in biology and chemistry and, by his own admission, has no understanding or
background in the field of physics, statics, dynamics, or force analysis, or the formwork operations being
conducted by Kokosing employees (fr. 275,284,300).
27
Kokosing presented two experts in physics, who opined that no employees working
_/
on the wall could have fallen into the rebar, and that no impalement hazard existed. Mr.
Douglas Ruth, opined that, even if an employee had fallen from a position "very close to
the southern edge of the western wall," he would not have fallen into and been impaled
upon the rebar because gravity would pull him straight down, and other forces would push
him back out from the wall (Tr. 621-22). Mr. Ruth testified that Mr. Holley could not have
fallen into the rebar from the location he occupied immediately before his fall, because the
forces operating on his body would have caused him to fall straight down or back slightly:
depending on how he is pushing with his feet because whatever forces were
acting on him at the moment his support let go, are the only forces that can
cause him to move in one direction or another. There are no forces that can
cause him to go backwards--tbrough the wall, or around the wall (Tr. 613).37
In Kokosing's view, Mr. Curren, the other physics expert, offered a plausible
explanation as to how Mr. Holley could have landed approximately four feet from the rebar.
Mr. Curren opined that the scaffold bracket, which was still attached to Mr. Holley's
eighteen-inch rebar chain assembly, and Mr. Holley were rotating as they fell (Tr. 518). Mr. ·
Curren believes the scaffold bracket grabbed the rebar and pulled Mr. Holley closer to the
rebar (Tr. 518).
Kokosing makes the following argument with respect to whether it knew or should
have known about the protruding rebar. It maintains that the undisputed facts demonstrate
37Mr. Garry Curren, another expert in physics, confirmed Mr. Ruth's opinion that Mr. Holley could not
have fallen into the rebar. Mr. Curren explained,
Based on mechanics, when a body is in motion, it tends to stay in that same direction of motion
unless an opposite force vector is acting upon it. So, what I am say there is, if he fell from the
wall, he either would have fell [sic] straight down, or back (Tr. 518).
28
that Mr. Willey, the foreman, was not present in the immediate work area on the morning
of March 20, 1992, and did not observe the uncovered rebar standing behind the west
formwork wall. Further, Mr. Jarvis stated that, other than Mr. Willey's crew, no employees
were in the work area to observe the fact that the rebar was uncovered. Moreover,
Kokosing urges that the rebar was not in plain view, as evinced by the fact that no one noted
that it was uncovered prior to Mr. Holley's accident.
Further, Kokosing asserts that the Secretary offered no evidence suggesting that it did
not exercise reasonable diligence with respect to the cited condition. It points to its
aggressive safety policy requiring the cover.u1g of all rebar, even in circumstances where
employees are not in a position to fall into or onto protruding rebar. Kokosing maintains
that its rebar policy ensures that rebar will be covered whenever it is anticipated that work
will move toward an area where rebar is located.
Finally, Kokosing believes that the fact that its safety officer observed this crew
working over uncovered rebar six weeks earlier evinces a conscientious attitude on its part.
The earlier observation of Mr. Willey's crew working over rebar does not, in Kokosing's
view, indicate that it knew that the protruding rebar at issue here posed any hazard to its
employees. Kokosing points out that constrnction sites are fast-changing environments, and
an employer cannot be deemed to have knowledge of a cited condition based upon an
observation six weeks earlier.
29
C. Discussion
The Secretary has established that Kokosing violated 29 C.F.R. § 1926.701(b).
Kokosing's position that an employee could not have fallen into or onto the protruding rebar
fails to take into account the fact that there are many variables which potentially can affect
the trajectory of a falling employee. Mr. Ruth took only two into account. The fact that the
scaffold bracket to which Mr. Holley's positioning device was attached ended up in the rebar ·
illustrates that there are more variables than those considered by Mr. Ruth. (See Ex. G-2.)
It must be assumed that the forces acting on the bracket were essentially the same as those
acting on Mr. Holley. Yet despite Mr. Ruth's opinion that there are no forces which would
cause a body to move around the wall and onto the rebar, the bracket obviously did. If Mr.
Curren's opinion that the bracket and Mr. Holley were rotating as they fell is correct, it
would seem fortuitous that the bracket, rather than Mr. Holley, was impaled on the rebar.
.
Moreover, Kokosing's position notwithstanding, the photographic exlubits show that
the rebar was in plain view. (See Ex. G-2 and G-3.) In the rapidly changing environment
of a major construction project such as this, it is incumbent on employers to check current
work areas for hazards such as this at least once daily. The fact that the protruding rebar
went undetected indicates that Kokosing was not adequately performing such checks.
D. Willfulness
The Secretary maintains that the violation of 29 C.F.R. § 1926.701(b) was willful. He
points out that the Review Commission has consistently held that a violation is willful if "it
was committed voluntarily with either an intentional disregard for the requirements of the
Act or with plain indifference to employee safety." Calang Corp., 1990 CCH OSHD ,r
30
29,080 (No. 85-319, 1990). A showing of evil or malicious intent or motive is not necessary
to establish a willful violation. Empire Detroit Steel Division v. OSHRC, 599 F.2d 378 (6th
Cir. 1978). A willful violation is differentiated from other types of violations by a
"heightened awareness...of the illegality of the conduct or conditions....and by a state of
mind...conscious disregard or plain indifference..." (Id).
The Secretary regards the failure to protect against unguarded rebar was willful since
Kokosing knew there was an OSHA standard that addressed the violative condition, had a
work rule that called for the guarding of all protruding rebar, empowered and expected its
employees to take corrective action when conditions such as exposed rebar were present,
yet allowed employees to work above protruding rebar. He cites the fact that on February
5, 1992, six weeks prior to Mr. Lowe's inspection, Kokosing's safety officer observed Eric
Willey's crew working above unguarded, protruding rebar. Notwithstanding Kokosing's
policy of progressively disciplining employees for violating company safety rules, nobody was
disciplined for the February 5, 1992 incident. Likewise, even though Kokosing acknowledged
that the rebar Holley fell near should have been guarded, nobody was disciplined for not
ensuring that it was. The Secretary believes that the record reflects a plain indifference to
employee safety on the part of Kokosing which rises to the level of a willful violation of 29
C.F.R. § 1926.70l(b).
The Secretary has not shown that the violation was committed " ... voluntarily with
either an intentional disregard for the requirements of the Act or with plain indifference to
employee safety." Calang Corp., supra. In essence, the Secretary's position rests entirely on
Kokosing's failure to discipline employees following the two instances reflected in this record
31
in which protruding rebar was discovered. This is insufficient evidence to support such a
characterization of this violation. However, because a fall into or onto the protruding rebar
clearly would cause death or serious injury, the violation is serious.
E. Penalty Assessment
In computing the penalty, Mr. Lowe rated the violation high severity, greater
probability because of the fact that a fall into the rebar would result in death or very serious
injury and because he regarded a fall from the fonnwork to be probable. This resulted in
a gravity-based penalty of $5,000. Mr Lowe gave no credit for size because Kokosing
employs over 250 persons, no credit for history because Kokosing had been cited for two .
serious and one willful violation at a job site in Smithfield, Ohio, in February, 1990, and no
credit for good faith because he regarded the violation as willful. He multiplied the $5,000
by seven to account for the willful nature of the violation. (Tr. 249-52.)
Although Mr. Lowe did not elaborate on them, gravity includes a number of factors.
These include
... the number of employees exposed to the hazard, the duration of their
exposure, the precautions taken to prevent injury, and the degree of
probability that an injury would occur. Turner Co., 4 BNA OSHC 1554, 1567,
1976-77 CCH OSHD 1' 21,023 (No. 3635, 1976), rev'd on other grounds, 561
F.2d 82 (7th Cir. 1977).
Secretary v. S.G. Loewendick & Sons, Inc., 16 BNA OSHC _ _ (Rev. Com. August 9,
1994). Here three employees were exposed for one-half day. No precautions were taken
to prevent injury. Given the evidence that industry practice is to climb Symons Steel-Ply
formwork without fall protection and the lack of evidence that falls from it have occurred
32
as a result, as well as the fact that the rebar was located in a place where an employee was
unlikely to fall, I conclude that the probability of a fall onto the protruding rebar was low.
Although I have concluded that there is no evidence that Kokosing's conduct was
willful, I also conclude that no credit should be given for good faith. The violation is one
that would not have occurred had Kokosing's safety check procedure functioned properly.
Moreover, this crew was found to be working over protruding rebar six weeks earlier.
Consequently, credit for good faith is not appropriate. Mr. Lowe indicated that Kokosing's
size and past history were such as to make credit for those factors inappropriate, and his
testimony is uncontradicted. I conclude that a penalty of $4,250 is appropriate.
III. Conclusions of Law
A Respondent Kokosing Construction Co., Inc., was at all times pertinent hereto
an employer within the meaning of Section 3(5) of the Occupational Safety & Health Act
of 1970, 29 U.S.C. Section 651-678 (1970).
B. The Occupational Safety & Health Review Commission has jurisdiction of the
parties and the subject matter.
C. Respondent Kokosing Construction Co., Inc., was not in violation of§ S(a)(l)
of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, as amended, as
charged in Citation 2, Item 2.
D. Respondent Kokosing Construction Co., Inc., was in serious violation of the
standard set out at 29 CFR § 1926.701(b) as charged in Citation 2, Item 1. A penalty of
$4,250 is appropriate.
33
IV. ORDER
Citation 2, Item 1, is affirmed as a serious violation of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678, as amended. Citation 2, Item 2 is vacated. A
total civil penalty of $4,250 is assessed.
~i::m
~1:,osHRc
Dated:
Washington, 'iic.
34
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