GEM Industrial, Inc.
Reviewed steel tag-line item withdrawn by settlement
Apply this precedent to your situation
This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
GEM Industrial, Inc. was a structural-steel subcontractor on an Ohio building project. The administrative law judge had affirmed a serious tag-line violation for crane loads during steel shakeout and assessed $1,300, along with a separate $1,625 electrical violation. Review was directed on the tag-line item. The Secretary and GEM settled by withdrawing the tag-line citation, with each party bearing its own fees and expenses. The Commission approved the settlement and set aside the judge's order to the extent inconsistent with it. The separate electrical item was not part of the reviewed settlement.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.751(d) and 1926.404(b)(1)(ii).
- Outcome: Settled. The reviewed tag-line item and its $1,300 penalty were withdrawn; the separate $1,625 electrical item was outside the settlement.
- Key point: The settlement eliminated the disputed tag-line citation without disturbing the separate electrical violation that was not before the Commission on review.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
PHONE
COM(202)60&6100
tTS@02)60&6100
.
.
SECRETARY OF LABOR, ..
l
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Complainant, l
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e
v. . Docket No. 93-0639
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GEM INDUSTRIAL, INC., l
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Respondent.
ORDER
This matter is before the Commissionon a direction for review entered by Commissioner
Velma Montoya on July 15, 1994. The parties have now filed a stipulation and settlement
agreement.
Having reviewed the record, and based upon the representations appearing in the
stipulation and settlement agreement, we conclude that this case raises no matters warranting
further review by the Commission. The terms of the stipulation and settlement agreement do not
appear to be contrary to the purposes of the Occupational Safety and Health Act and are in
compliance with the Commission’s Rules of Procedure.
Accordingly, we incorporatethe terms of the stipulationand settlement agreement into this
order, and we set aside the Administrative Law Judge’s decision and order to the extent that it is
inconsistent with the stipulation and settlement agreement. This is the final order of the
Commission in this case. See 29 U.S.C. $5 659(c), 660(a), and (b).
BY DIRECTION OF THE COMMISSION
Executive Secretary
1995 OSHRC No. 36
Docket No. 93-0639
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission
was issued and served on the following on June 7, 1995.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
Benjamin T. Chin& Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Michael S. Holman
Sarah J. DeBruin
Attorneys at Law
Bricker & Eckler
100 South Third Street
Columbus, OH 43215
Paul L. Brady
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
FOR THE COMMISSION
R,%m~,
Ray H. Darling, Jr.
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
ROBERT REICH, SECRETARY OF LABOR :
l
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Complainant, :
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0
V. l
l OSHRC Docket
l
l No. 930 639
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GEM INDUSTRIAL, INC. l
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l
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Respondent, l
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STIPULATION AND SETT- AG'i'
The parties have reached agreement on a full and complete
settlement and disposition of Serious Citation No. 1 Item lb (29
CeFeR. Q 1926,751(d)); the affirmance of that citation by the
Administrative Law Judge is currently pending before the
Commission.
II 0
It is stipulated and agreed between the Complainant,
Secretary of Labor, and the Respondent, GEM Industrial, Inc,,
that:
1 l Complainant withdraws Serious Citation NOe 1 Item Ibe
2 l There is no authorized employee representative party in
this case l
3 l No affected employee elected party status in this case,
40 Each party agrees to bear its own fees, costs and
expenses incurred by such party in connection with all stages of
this proceeding with regard to this Citation item.
III.
Respondent posted this Stipulation and Settlement Agreement
in accordance with Commission Rules 2200.7 and 2200.100 on
May3& 1995.
THOMAS S. WILLIAMSON, JR.
Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health
DONALD G. SHALHOUB
Deputy Associate Solicitor for
Occupational Safety and Health
DANIEL J. MICH
Counsel for Regional
Trial Litigation
Staff Attorney for Regional Bricker biEckler
Trial Litigation 100 South Third Street
Columbus, Ohio
4321504291
Attorney for the
Respondent,
GEM Industrial, Inc.
OCCUPATIONAL SAFETY AND HEALTH RWIEW COMMISSION
One Lafayette Centm
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003-l 9
SECRETARY OF LABOR
Complainant
‘CI. OSHRC DOCKET
NO. 934639
GEM, INC.
Respondent.
NOTKE OF DOCKETING
OF ADMINISTKVITVE LA7r7v
JUDGES DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on June 14 1994. The decision of the Judge
will become a final order of the Commission on July 18, 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 e‘titian should be received by the Executive Secretary on or before
Jaly 6 19&i in order to permit sufficient time for its review. See
Comnhssion Rule 91,29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued bv the Commission. then the Counsel for
Regional Trial Litigation wiK represent the Departme& of Labor. hY Party
havmg questions about review nghts may contact the Commission’ sExe cutive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: June 16, 1994
DOCKET NO. 93-0639 -
NOTKE IS GIVEN TO THE FOUWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Ave., N.W.
Washington, DC. 20210
Benjamin T. Chinni
Associate Regional Solicitor
Office of the SolicitoF, U.S. DOL
Federal Office Buildmg Room 881
1240 East Ninth Street
Cleveland, OH 44199
Michael S. Holman, Esq.
Bricker & Eckler
100 South Third Street
Columbus, OH 43215
Paul L Brady
Administrative kw Jud e
Occupational Safety an cf Health
Review CommissIon
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00106118037:05
UNITED STATES OF AMERICA
OCCUPAT‘IONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119
PHONE: FAX:
COM (404) 347-4197 . COM (404) 347-0713
s (404~341-4197 FTS (404) 347-0113
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b
SECRETARY OF LABOR, ..
..
Complainant, ..
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v. .. OSHRC Docket No. 93-639
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GEM INDUSTRIAL, INC., ..
Respondent. ..
APPEARANCES:
Janice L Thompson, 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 Paul L. Brady
DECISION AND ORDER
This proceeding is brought pursuant to section 10 of the Occupational Safety and
Health Act of 1970 (Act) to contest a citation issued by the Secretary of Labor (Secretary)
pursuant to section 9(a) of the Act. The citation was issued as a result of an inspection of
a jobsite at 2600 Dorr Street, Toledo, Ohio.
Respondent, Gem Industrial, Inc. (Gem), was working as a subcontractor to erect
structural steel for .a single-tiered building. There is no dispute that at the time of the
inspection, the building was approximately 100 feet by 300 feet with 3?&inch walls of
concrete block about 22 feet in height. There was no roof on the structure, and trucks
carrying steel columns were unloaded and being sorted out with the use of a crane on the
inside of the building.
Gem is charged with the violation of 29 C.F.R. 6 1926.751(d) and, in the alternative,
6 1926.550(b)(2).
Section 1926.751(d), which pertains to structural steel assembly, states: “Tag lines
shall be used for controlling loads.” Section 1926550(b)(2), which pertains to cranes and
derricks, states in pertinent part as follows:
All crawler, truck, or locomotive cranes in use shall meet the applicable
requirements for design, inspection, construction, testing, maintenance and
operation as prescribed in the ANSI B30.51968, Safety Code for Crawler,
Locomotive and Truck Cranes . . . .
Section 5-3.2.3 p. of ANSI B30.591968 provides: “A tag or restraint line shall be used
when rotation of the load is hazardous.”
The violation of 6 1926.75 l(d) is described in the citation as follows:
Employees using a crane for shaking out steel were not provided with tag lines
to control the load.
The Commission has held that:
To establish a violation of a standard, the Secretary must show by a
preponderance of the evidence that: (1) the cited standard applies, (2) its
terms were not met, (3) employees had access to the violative condition, and
(4) the employer knew or could have known of it with the exercise of
reasonable diligence.
Seibel Modem Mfg. & WeldingCop., 15 BNA OSHC 1218, 1991 CCH OSHD !I 29,442, p.
39,678 (No. 88-821, 1991).
Gem contends the Secretary has failed to establish that the cited standard applies.
This contention is based on the type of work being performed, which is known as “shaking
out.”
The inspecting officer, Thomas Buchele, testified that he observed Gem’s employees
“shaking out or sorting out large columns of steel prior to erection.” He explained that
“shaking out” means “the steel is taken from piles and sorted out in position to facilitate the
erection of steel. It has to go together in a certain pattern and pieces have to be av&&le
2
when they go in place,” and that “the erection assembly can’t take place without sorting the
steel prior to doing that” (Tr. 30-31).
Gem, through several expert witnesses, asserts that the “shakeout” process is not part
of the structural steel assembly. The Secretary argues that “the shakeout” or sorting of steel
is the first step in structural steel assembly and is integral to the process. It is also pointed
out that Mr. Don Leonhardt, one of Gem’s experts, testified that unloading steel and
“shakeout” is ironworker work that would present a jurisdictional problem if another trade
did the work (Tr. 159).
Without discounting the credibility of Gem’s experts, their opinions relate to practical
experience in the steel construction industry. The issue presented, however, relates solely
to the interpretation and application of the standard, as written, and not necessarily within
the scope of their particular expertise. In this regard, expert testimony is not conclusive and
need not be accepted even if uncontradicted. See Connecticut Natural Gas Cop, 6 BNA
OSHC 1796, 1978 CCH OSHD B 22,874 at 27,668 (No. 13694, 1978).
The Secretary noted that:
Subpart R of 29 CFR 1926 covers “Steel Erection.” Within “Subpart R -
Steel Erection” are “8 1926.750 Flooring Requirements,” ‘L§ 1926.751 -
Structural Steel Assembly,” and “5 1926.752 - Bolting, Riveting, Fitting-up,
and Plumbing-up.” Nowhere within Subpart R is there an exceDtion to its
requirements for the shake out of steel.
For the purpose of determining applicability of the standard, the testimony of Mr.
Jerome Laub, one of Gem’s experts, is pertinent. When asked on direct examination if
structural steel assembly includes the shakeout, he replied, “Yes, but it’s a different process.
The shake out is done before you set the iron” (Tr. 191-192).
Considering all the testimony, it is clear that “shakeout” is an integral process of
structural steel assembly. The standard applies to the facts in this case.
The question which must now be resolved is whether the terms of the standard were
met. Mr. Buchele testified that during the shakeout of steel, employees did not use tag lines
to control the loads (Tr. 36-37). Gem does not dispute that tag lines were not used during
the shakeout. It is contended that, consistent with industry practice, tag lines are not
required during the shakeout process. Mr. Leonhardt testified that in his experience of
3
working for hundreds of steel erection contractors and in performing and observing the
shakeout procedure hundreds of times, he has never used or observed the use of tag lines
during the shakeout of structural steel (Tr. 132).
Mr. Jerome Laub, who has been a journeyman ironworker for over twenty years and
who has spent 2,000 to 4,000 hours shaking out steel, stated that he has never used or
observed or heard of the use of tag lines to shake out steel (Tr. 175-176). Mr. John
Gurtzweiler concurred in this observation. He has been a journeyman ironworker for over
twenty-five years and has observed and performed shakeout hundreds of times (Tr. 204-205).
He testified that he has never seen any contractor or contractor’s employee use tag lines
during the shakeout procedure (Tr. 204-205). Mr. Mark Adams also testified that he has
never observed the use of tag lines during shakeout throughout his experiences in the
ironworking trade in numerous states including Ohio, Maryland, Virginia, Florida, Wisconsin
and Toronto, Canada (Tr. 224).
Mr. Leonhardt believed tag lines should be used during the erection process on windy
days when it is diflicult to control the steel (Tr. 148). He stated that most of the time during
shaking out, loads are hoisted only a few feet for a short distance and can be guided by hand
(Tr. 13 1).
On Gem’s behalf, the testimony amply shows that its conduct was consistent with
normal industry practice. However, such industry practice is irrelevant when the standard,
as in this case, requires a different course of action. State Sheet Metal Co., Inc., 16 BNA
OSHC 1155,1993 CCH OSHD lI 30,042,p. 41,225 (Nos. 90-1620 & 90.2894,1993); Williams
Entepikes, Inc., 13 BNA OSHC 1249, 1986-87 CCH OSHD II 27,893, p. 36,585 (No. 85-355,
1987). The standard at 5 1926.751(d) specifically requires the use of tag lines for controlling
loads.
In its answer to the amended complaint filed in this case, Gem alleges that
“compliance would result in a greater hazard.” Mr. Leonhardt testified tag lines would get
in the way of employees and could become entangled in the steel (Tr. 131). Other expert
witnesses similarly testified that the dragging tag lines could become entangled and, in some
instances, even cause employees to fall. In addition, use of tag lines does not permit an
employee to push a load forward (Tr. 176, 208-219, 226-227).
4
The Secretary points out that in order to prove a greater hazard defense, the
employer must show that (1) the hazards of compliance are greater than the hazards of
noncompliance, (2) alternative means of protection are unavailable, and (3) a variance was
unavailable or inappropriate. Spancrete Northeast; Inc., 15 BNA OSHC 1020, 1991 CCH
OSHD U 29,313 (No. 84.521,199l); Walker Towing Corp., 14 BNA OSHC 2072,199l CCH
OSHD II 29,239 (No. 87-1359, 1991). It is, therefore, argued that Gem failed to show that
the hazards of compliance are greater than the hazards of noncompliance. Also, no
evidence of alternative means of protection was introduced or evidence that an application
for a variance was submitted. The elements necessary to prove the greater hazard defense
in this case have not been met.
The evidence offered by Gem in defense of the alleged violation assumes the loads
were being lifted a few feet off the ground and moved short distances. But regardless of the
stage of the steel construction or procedure being used, there is compelling evidence to the
contrary.
Mr. Buchele testified that he observed the lifting and movement of steel columns
approximately 30 to 40 feet in length and weighing approximately 700 or 800 pounds. He
stated some loads were lifted 8 to 10 feet in the air and moved 15 to 20 yards (Tr. 30-33).
The record also discloses that Mr. Tim Clark, a Gem representative, stated:
The steel being shaken out on January 7,1993, by Respondent at the worksite
in question weighed approximately 500 pounds per steel beam and was
approximately 23-24 feet in length. The steel was hoisted approximately 10
feet above the ground in order to clear some bar joists (Tr. 234-235).
Gem argues that its employees were not exposed to a hazard as a result of the
alleged violative condition. Mr. Buchele testified, however, that there was the hazard of
employees being struck by the steel (Tr. 49). He observed two employees making the
necessary attachments to set up the move and two employees guiding the load for placement
on the ground. In both instances, employees worked under or near the load. When the
loads were close enough to use their hands, there was the hazard of the steel falling on the
employees’ legs and feet (Tr. 36-37, 241-242).
5
The standard expressly states that tag lines shall be used to control loads, and they
were admittedly not used in this case. The Secretary has proven the necessary elements to
establish the violation.
Alleged Violation of 29 C.F.R. 5 1926.404(b)(l)(ii)
The standard provides as follows:
8 1926.404(b)
Brunch cikuits--(I) Ground-fault protection
(ii) Ground-fault circuit intempters. All 12~volt single-phase, 15 and 20.
ampere receptacle outlets on constructions [tic] sites, which are not a part of
the permanent wiring of the building or structure and which are in use by
employees, shall have approved ground-fault circuit interrupters for personnel
protection. Receptacles on a two-wire, single-phase portable or vehicle-
mounted generator rated not more than 5kW, where the circuit conductors of
the generator are insulated from the generator frame and all other grounded
surfaces, need not be protected with ground-fault circuit interrupters.
The alleged violation is described in the citation as follows:
The Miller 251-D welder/generator being used on the site was not provided
with a GFCI nor was an assured grounding conductor program in effect.
Mr. Buchele testiCed Gem employees were using the portable generator to power an
electric impact gun. It did not have a ground-fault circuit interrupter (GFCI) (Tr. 63-66).
Gem admits there was no GFCI present but contends:
(1) The Secretary did not demonstrate that employees were exposed to any
actual electrical hazard; and (2) the Secretary did not establish that GEM had
knowledge of the alleged violative condition.
Seibel; supra.
pvir. Buchele testified that the employees stated the electric impact gun had been used
by Gem employees to tighten bolts on the columns. The generator was running, and the gun
was plugged in at the time of the inspection (Tr. 6344). Buchele explained that the
difference between a circuit breaker and a GFCI was that, while the circuit breaker protects
equipment, it does not prevent injury to the operator (Tr. 115417). He stated there was
6
a serious hazard to the operator who could provide a path for the electricity if there is a
fault in the circuit. The presence of water at the site increased the hazard (Exhs. C-4, C-7;
Tr. 68-69).
Buchele stated foreman Laub told him the GFCIs had not arrived on the site, as they
had been working for only about five hours. He indicated the GFCIs would have been on
the site the next day (Tr. 67, 100). Clearly, Buchele’s testimony, which is not refuted, shows
knowledge of the need for the GFCIs which are required by the standard. Violation of the
standard is established.
Section 17(k) of the Act provides as follows:
For purposes of this section, a serious violation shall be deemed to exist in a
place of employment if there is a substantial probability that death or serious
physical harm could result from a condition which exists, or from one or more
practices, means, methods, operations, or processes which have been adopted
or are in use, in such place of employment unless the employer did not, and
could not with the exercise of reasonable diligence, know of the presence of
the violation.
The Secretary presented evidence which shows that the violations could result in
death or serious physical harm to employees (Tr. 68, 71, 242).
The determination of penalties in contested cases is to be made by the Commission.
Under section 17(j) of the Act, the Commission is required to find and give “due
consideration” to the size of the employer’s business, the gravity of the violation, the good
faith of the employer, and the history of previous violations in determining the assessment
of an appropriate penalty. The gravity of the offense is the principal factor to be
considered. Nacirema Operating Co., 1 BNA OSHC 1001, 1971-73 CCH OSHD n 15,032
(No. 4, 1972). The proposed penalties were recommended and calculated by Mr. Buchele
based upon good faith, size, history, and the gravity of the violation (Tr. 59-61).
Upon consideration of the relevant factors, it is determined that the following
penalties are deemed appropriate:
Serious Violation of 8 1926.751(d) mm
$1,300
Serious Violation of 0 1926.404(b)(l)@) -- $1,625
FINDINGS OF FAm AND
CONCLUSIONS OF LAW
The foregoing decision constitutes the &dings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is ORDERED:
(1) That the citation alleging violation of 29 C.F.R. 6 1926.751(d) is affirmed as
serious, and a penalty of $1,300 is hereby assessed.
(2) That the citation alleging violation of 29 C.F.R. 6 1926.404(b)(l)(ii) is affirmed
as serious, and a penalty of $1,625 is hereby assessed.
PAUL L. BRADY
Judge
Date: June 9, 1994
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