Ruhlin Co.
EAJA expense award reduced to $120.08
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
Ruhlin Company sought fees and expenses under the Equal Access to Justice Act after prevailing on two construction citation items. The Commission held that reasonable and necessary attorney travel expenses customarily charged to a client are recoverable, so it allowed $57.04 for mileage and parking. It limited transcript reimbursement to the portion relevant to the compensable item because Ruhlin had not allocated the transcript cost, accepting the Secretary's estimate of 8 percent and awarding $63.04. The Commission therefore modified the expense award to $120.08 and left the undisputed $975 attorney-fee award intact. Commissioner Montoya agreed that travel costs were recoverable but would have used a different allocation method and awarded 25 percent of the transcript cost.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2), 1926.29(a), 1926.105(a), and 1926.701(b).
- Outcome: Procedural. The Commission reduced recoverable expenses to $120.08 and affirmed the undisputed $975 attorney-fee award.
- Key point: EAJA may cover necessary attorney travel costs, but an employer seeking partial transcript reimbursement must establish the portion tied to compensable claims.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE:
COM(202)606-6100
Rs(202)43OMlOO
..
SECRETARY OF LABOR, .
l
.
.
Complainant, ..
..
.
V. . OSHRC Docket No. 93-1507
RUHLIN COMPANY,
Respondent.
DECISION
Before: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
On August 19, 1994, Administrative Law Judge James H. Barkley issued a decision
pursuant to the Equal Access to Justice Act, 5 U.S.C. 8 504 (“EAJA”), that granted to
Ruhlin Company an award for certain expenses, including $47.04 for mileage to and from
two hearings, $10.00 for parking fees at the hearings, and $788.05 for a transcript.’
The Secretary of Labor asserts on review that the travel expenses, ie., mileage and
parking, are not compensable pursuant to the EAJA2. The Secretary further asserts that
most of the cost of the transcript is not compensable because, pursuant to the EAJA, a
‘We note tha t, in his decision, the judge awarded a total of $875.09 for expenses. Reviewing
the record, we find $30 of that amount to be unaccountable. We view this discrepancy as
a typographical error and find that the judge intended to allow $845.09 for expenses.
2The judge also awarded $975 in attorney’s fees. Neither party has disputed that portion of
the award and, therefore, we accept it.
1995-OSHRC-8
2
company is not entitled to compensation for those portions of the litigation upon which the
Government either prevailed or was substantially justified.
The dispute regarding the recoverability of travel costs arises from an ambiguity in
the EAJA which states that
[Flees and other expenses” includes the reasonable expenses of expert
CL
witnesses, the reasonable cost of any study, analysis, engineering report, test,
or project which is found by the agency to be necessary for the preparation
of the party’s case, and reasonable attorney or agent fees. . . .
5 U.S.C. 5 504(B)(l)(A).
Those circuits that have addressed the issue have split over whether the above
language is an exclusive listing of recoverable costs and, therefore, whether travel expenses
are recoverable under the EAJA3. The Sixth Circuit, the circuit in which this case arises,
has not directly addressed the issue. However, in Holden v. Bowen, 668 F. Supp. 1042 (N.D.
Ohio 1986), a case which arose in the Sixth Circuit, the district court explicitly found travel
costs to be recoverable under the EAJA.
We agree with the majority of the Circuits that have held travel expenses to be
recoverable. Allowing the recovery of the reasonable and necessary expenses of an attorney
in a specific case which are customarily charged to the client is, in our view, consistent with
Travel expenses have been disallowed in both the Tenth and District of Columbia Circuits
on the grounds that the statute provides an exclusive list of the expenses compensable under
the EAJA. Weak@ v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986), and Massachusetts Fair
Share v. Law Enforcement, 776 F.2d 1066,1069-70 (D.C. Cir. 1985). On the other hand, the
Federal, Second, Eighth, Ninth, and Eleventh Circuits have held the specific items listed in
the statute to be only examples of recoverable expenses and have allowed the recovery of
travel expenses. Oliveira v. United States, 827 F.2d 735 (Fed. Cir. 1987); Aston v. Secretary
ofHealth and Human Services, 808 F.2d 9 (2d Cir. 1986); Kelly v. Bowen, 862 F.2d 1333 (8th
Cir. 1988); International Woodworkers, Local 3-98 v. Donovan, 792 F.2d 763 (9th Cir. 1986);
Jear2 v. Nelson, 863 F.2d 759 (11th Cir. 1988).
We note that the courts that have addressed the issue were considering 28 U.S.C.
5 2412(d)(2)(A), the judicial counterpart of 5 U.S.C. 5 504(b)(l)(A). Both sections contain
essentially the same language, however, and should be interpreted in the same manner. See
Central Brass Mfg. Co., 14 BNA OSHC 1904, 1909, 1987-90 CCH OSHD ll 29,144, p. 38,958
(No. 86-978, 1990)(consolidated).
3
.
the EAJA’s statutory objective of encouraging small employers to defend their rights against
I
unjustified governmental action. Kelly v. Bowen, 862 F.2d at 1333; Central Brass, 14 BNA
at 1909, 1987-90 CCH OSHD at p. 38,958. Accordingly, Ruhlin is entitled to recover $57.04
for the mileage and parking included in its petition.
In general, the cost of a transcript is awardable only for those portions relevant to
items eligible for an EAJA award. C$ Spewy Rand v. A-T-0, Inc., 58 F.R.D. 132, 138 (E.D.
Va. 1973)(no costs awarded for unnecessary portions of a trial transcript). Where, as here,
the employer is entitled to compensation for less than all items, the employer, not the
Commission, must establish the portion of the transcript for which it is entitled to be
reimbursed. See Central Brass, 14 BNA OSHC at 1906-08, 1987-90 CCH OSHD at pp.
38,956.7 (attorney’s time sheets did not designate items or category of violation).
We note that there are two viable methods for determining transcript costs when a
party is entitled to an EAJA award for only part of a case. For shorter transcripts, the most
direct approach would be to count the number of pages relevant to the compensable item.
However, we recognize that in those few cases involving long transcripts, this method may
be unduly burdensome and costly for the parties. Accordingly, in cases with long transcripts,
it may be more feasible to rely on an approximation with respect to the items in which the
employer prevailed and the Secretary was not substantially justified. In our view, it is
impractical to formulate any hard and fast rules governing when either method should be
used. Rather, there should be flexibility to apply the method best suited for the individual
case.
We also would emphasize, as previously noted, that the burden is on the employer
to establish the facts necessary to enable the Commission and its judges to fashion an
appropriate award. Where this burden is met, it is up to the Secretary to rebut the
employer’s showing. While the Commission will resolve disputes over the relevant portions
of the transcript, it should not expend its resources by counting pages where the employer
4
has failed, in the first instance, to present the facts required to fashion an appropriate
award.4
In its EAJA ~nplication,
-. Ruhlin sought reimbursement for the cost of the entire
transcript. It did not try to determine what portion of the transcript involved the
reimbursable item. The Secretary, however, has claimed that approximately 8 percent of the
transcript was relevant to the item. The Secretary’s determination is consistent with our own
assessment of the transcript. Accordingly, we accept the Secretary’s determination. The
record shows that the total cost of the transcript was $788.05. Ruhlin is entitled to 8 percent
of that amount, $63.04.
Accordingly, the Judge’s decision is MODIFIED to allow Ruhlin to recover $57.04
in mileage and parking fees and $63.04 for the transcript, for a total of $120.08 for expenses.
In all other respects, the Judge’s award is AFFIRMED.
Stuart E. Weisberg
Chairman
Edwin G. Foulke, Jr.
Commissioner
DATED: Z/15/95
“Chairman Weisberg notes that Commissioner Montoya’s suggestion that the Commission
use a “lodestar” for apportioning “transcript costs” is without judicial precedent. The
“lodestar” method has of necessity been used to determine reasonable attorney’s fees, but
never in connection with transcript costs. The transcript itself shows the number of pages
that relate to the citation items on which the employer prevailed. The test is how much of
the transcript, how many pages, actually relate to the specific citation item, not how complex
or difficult one “subjectively” determines the citation item may be. In fact, the complexity
of the issue may have no bearing whatsoever on the number of pages devoted to it. The
degree of difficulty is an appropriate yardstick for diving competition, but not for
apportioning transcript costs.
5
MONTOYA, Commissioner, concurring and dissenting:
I heartily agree with my colleagues’ decision to adopt the majority view that the
language of 28 U.S.C. 5 2412(b) and 28 U.S.C. 5 2412(d)(2)(A) should be construed to allow
attorney travel costs in Commission proceedings. This result is particularly gratifying here,
where the Secretary’s petition cited only those authorities that support his strict reading of
the Equal Access to Justice Act, 5 U.S.C 8 504 (“EAJA”) to allow only those expenses
specifically mentioned in 28 U.S.C. § 2412(d)(2)(A): Weak@ v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986) (costs for travel expenses are not authorized by EAJA); Massachusetts Fair
Share v. Law Enforcement, 776 F.2d 1066, 1069-70 (D.C. Cir.1985) (taxi fares and travel
expenses not eligible for award); Action on Smoking and Health v. CAB., 724 F.2d 211,
223-24 (D.C.Cir. 1984) ( no costs allowable for taxi fares). Though these cases clearly
represent the minority position, an unwary respondent might not have brought this to our
attention.
However, I must disagree with my colleagues’ decision to apportion the transcript in
accordance with the page count submitted by the Secretary. While it is true that some
courts have apportioned transcript costs on a per-relevant-page basis, I would reject that
approach for the Commission. First, this method requires an essentially subjective
determination as to which individual pages are and are not relevant to the allowable item.
Transcripts invariably include pages on which the foundation for more than one citation item
is laid. While such pages are inextricably intertwined with all pages on which those items
are discussed, the method accepted by the majority here tends to award only the minimum
number of pages on which the allowable items themselves are discussed.
6
Second, the page-counting method also threatens to involve both the parties and the
Commission in extraordinarily complex and time-consuming analyses of lengthy transcripts
in the future. Particularly in light of this case, in which we have seen a willingness on the
part of the Secretary to expend resources when little, if anything, is to be gained, I would
not invite the parties to engage in this inherently time-consuming and inefficient method of
transcript apportionment in subsequent cases.
Rather, I would apportion all such attorney costs according to the “lodestar” method
the Commission adopted for apportioning attorney fees in Central Brass Mfg.Co., 14 BNA
OSHC 1904, 1987-90 CCH OSHD ll 29,144 (Nos. 86-978 & 86-1610, 1990). There, we
apportioned the costs of attorney’s fees according to the relative difficulty of the citation
items and, thus, the reasonable time required to complete each item. See also William B.
Hopke Co., 12 BNA OSHC 2158, 2160, 1986 CCH OSHD ll27,729 (No. 81-0206, 1986),
holding that the hearing judge is to determine a reasonable award based on his expert
opinion as to the complexity of the item and the novelty of the issues presented and, thus,
the reasonable time required to complete each item.
In determining the EAJA award below, Judge Barkley held that the citation in
question, that alleged failure to provide frequent and regular inspections of the job site as
required by 29 CFR 5 1926.20(b)(2), was neither novel nor complex. I agree, and would
also say that the item alleging inadequate fall protection pursuant to 29 CFR 5 1926.105(a)
was more difficult than the one before us. However, I consider the difficulty of the item
before us to be on a par with the third item, which alleged unguarded rebar pursuant to 29
7
CFR 5 1926.701(b). Accordingly, I would make a 25 percent allocation for each of these
items, and would therefore award Ruhlin 25 percent of the cost of this transcript, or $195.
Velma Montod / /
Commission d r ill
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 934507
..
RUHLIN COMPANY, ..
..
Respondent. ..
.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
February 15.1995. 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 TEKEDATE OF TEIIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 8 660.
FOR THE COMMISSION
February 15, 1995
Date
Docket No. 934507
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Benjamin T. Chinni, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Michael R. Stith, Esq.
The Ruhlin Company
6931 Ridge Road
PO Box 190
Sharon Center, OH 44274
James Barkley
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
PHONE:
.
zi (202) 6o6-5mo
=W202)- .
Fls(202)606+100 . Fw=36o6-5050
Secretary of Labor, ..
Complainant, :
.
v. .. Docket No. 93-1507
.
The Ruhlin Company, ..
Respondent. ’ :
.
The Administrative Law Judge’s Report in the above referenced case was docketed with the
Commission on September 1, 1994. The decision of the Judge will become a final order of the
Commission on October 3,1994 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 20, 1994 in order to
permit sufficient time for its review. See Commission Rule 91, 29 C.F.R. 5 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St., N.W., Room 401
Washington, D. C. 20006-l 246
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
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial
Litigation will represent the Department of Labor. Any party having questions about review rights
may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE COMMISSION
September 1, 1994
Date Ray H. Darling, Jr.w
Executive Secretary
Docket No. 93-1507
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional 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 R. Stith, Esq.
The Ruhlin Company
6931 Ridge Road
PO Box 190
Sharon Center, OH 44274
James Barkley
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Speer Boulevard
Room 250
Denver, Colorado 802044582
PHONE
COM (303) 8444409 F& (303)
8444759
~(303)844-3409 FTS (303) 8444759
.-
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET
NO. 93-1507
THE RUHLIN COMPANY,
Respondent.
*CORRECTED ORDER
Respondent, The Ruhlin Company (Ruhlin), submits an application for attorney’s fees
and expenses under the Equal Access to Justice Act (EAJA), adopted at $2204 et seq. of the
Commission’s Rules of Procedure.
Under the EAJA, a prevailing party meeting the basic requirements for eligibility is
entitled to an award of attorney fees and other expenses, unless the Secretary shows that her
position was substantially justified or that special circumstances make an award unjust. 5
U.S.C. @504(a)(l), 504(b)(l)(B); WiZZiamB. Hopke Co., , 12 BNA OSHC 2158, 1986 CCH
OSHD 127,729 (No. 81-0206, 1986). Ruhlin represents, without contradiction, that it is an
*incorporated business with a net worth of less than $7 million, employing not more than
500 employees. Ruhlin is the prevailing party as to both items 1 and 2 of “serious” citation
1, alleging violations of @1926.20(b)(2) and 1926.105(a). The issue here is whether the
Secretary was substantially justified in pursuing those two items.
The test of whether government action is subssantially justified is essentially one of
reasonableness in law and fact. Pierce v. Underwood, 108 S.Ct. 2541, 2550 (1988). Hocking
m
2 a
Valley Steel Erectors, Inc., 11 BNA OSHC 1492, 1983 CCH OSHD 825,824 (80.1463,1983).
That is, there must be in the record some basis of fact from which a violation can be
reasonably inferred. The evidence, however, need not be uncontradicted. If reasonable
people may fairly differ as to whether certain evidence establishes a fact in issue, it must be
deemed substantial. “Substantial justification” is more that a scintilla, but less than a
preponderance. John u/: McGrath Corp. v. Hughes, 264 F.2d 314 (2d Cir. 1959).
Citation 1, item 2, Alleged Violation of 81926.105(a]
This regulation requires fall protection. The facts underlying this item were
undisputed; the uncontradicted evidence established that the employees of Ruhlin’s
subcontractor, Middle States Steel, walked the cited steel structure under construction
without 100% fall protection. The issue on which this item turned was the actual or
constructive knowledge of Ruhlin, the general contractor.
While the preponderance of evidence indicated that Ruhlin was without actual or
constructive knowledge of the subcontractor’s violations, there was some evidence from
which employer knowledge could have been inferred. Accordingly, the Secretary was
substantially justified in bringing these facts before the Commission.
Citation 1, item 1, Alleged Violation of 51926.20(b)(2)
This regulation requires frequent and regular inspections of the job site by a
competent person. Complainant produced no evidence of any specific deficiencies in
Ruhlin’s inspection program. The testifying Compliance Officer was not familiar with
Ruhlin’s inspection plan, but relied entirely upon citation items as evidence that frequent and
regular inspections were not made by a competent person.
In order to determine a violation of the cited standard, the Secretary must inquire
into the frequency of the inspections and the competency of the person conducting the
inspections. The fact that the Compliance Officer observed what, in his opinion, were
violative conditions without further inquiry into the employer’s inspection program is not a
substantial justification for alleging a violation of this standard.
As Complainant made no attempt to ascertain the facts necessary to prove a violation
of the cited standard prior to bringing it to hearing, its position cannot be found to have
been substantially justified. Fees and expenses expended in defense of this item shall be
awarded.
Amount of the Award
Ruhlin has documented attorney fees in excess of $9,000, and expenses in the amount
of $845.09. Neither fees nor expenses were apportioned by citation item.
The Commission has held that the hearing judge must determine a reasonable fee
based on the complexity of the case and the novelty of the issues involved, utilizing his
knowledge, expertise and experience in occupational safety and health law. WiNam B.
Hopke Co., supra at 2160. The issue concerned here is neither novel nor complex, occupying
2 pages of Ruhlin’s 15 page brief. The undersigned finds that Ruhlin’s counsel might
reasonably have been expected to expend 8 hours, investigating, trying, researching and
briefing this item. An expenditure of 5 hours documenting and drafting the EAJA petition
is deemed reasonable.
Attorney fees in the amount of $975.00 (13 hours X $75.0O/hr.) are awarded. Actual
costs in the amount of $875.09 are award
Dated: Auugst 19, 1994
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 (202) 6064ao
m(202)606-5100
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-1507
RUHLIN COMPANY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on May 6, 1994. The decision of the Judge
will become a final order of the Commission on June 7, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 24 16 94 in order to ermit sufficient time for its review. See
CommlSsion Rule 91, 29 e .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew 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. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: May 6, 1994
DOCKET NO. 93-1507
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
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 Buildmg, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Michael R. Stith, Esq.
The Ruhlin Corn any
6931 Rid e Roa B
PO Box f 90
Sharon Center, OH 44274
James H. Barkley
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582
00105927891:05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Speer Boulevard
Room 250
Denver, Colorado 80204-3582
PHONE FAX:
COM (303) 8444409 COM (303) 8444759
~(=I- Fl-s (303) 8444759
SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 934507
THE RUHLIN COMPANY,
Respondent.
APPEARANCES:
Janice L. Thompson, Esq., Office of the Solicitor, U.S. Department of Labor,
Cleveland, Ohio
Michael R. Stith, Esq., The Ruhlin Company, Sharon Center, Ohio
Before: Administrative Law Judge James H. Barkley
DECISION AND ORDER
This proceeding arises under the Occupational Safety and Health Act of 1970
(29 U.S.C. Section 651 et seq.; hereafter called the “Act”).
Respondent, Ruhlin Company (Ruhlin), at all times relevant to this action
maintained a worksite at CR 151 South Avenue Bridge, Youngstown, Ohio, where it
was engaged in construction as a general contractor. Ruhlin admits it is an employer
engaged in a business affecting commerce and is subject to the requirements of the:
Act.
Between March 31 and April 9, 1993 the Occupational Safety and Health
Administration (OSHA) conducted an inspection of Ruhlin’s Youngstown worksite
(Tr. 29). As a result of the inspection, Ruhlin was issued citations, together with
proposed penalties, alleging violations of the Act. By filing a timely notice of contest
Respondent brought this proceeding before the Occupational Safety and Health
Review Commission (Commission).
On November 30, 1993, a hearing was held in Cleveland, Ohio, on the cited
violations. The parties have submitted briefs and this matter is ready for disposition.
Alleged Violation of 81926.105(a)
Citation 1, item 2 alleges:
29 CFR 1926.105(a): Safety nets were not provided when workplaces were more than
25 feet above the ground or water surface, or other surfaces where the use of
ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts was
impractical:
The employer did not provide safety nets where employees were exposed to falls
while connecting, bolting up, walking on structural steel beams or performing other
duties associated with the erection of the bridge.
“OR IN THE ALTERNATIVE”
29 CFR 1926.29(a): Employees did not use appropriate personal protective equip-
ment to prevent falls such as, but not limited to, static and/or catenary lines in con-
junction with safety belts and lanyards while the employees were walking on struc-
tural steel beams, bolting up or performing other duties associated with the erection
of the bridge:
Among other methods feasible and acceptable to correct this hazard are, but not
limited to, the use of ladders, scaffolds, catch platforms, scizzor (sic) lifts, rotating
and articulating lifts.
Facts
On March 31, 1993, Compliance Officer Gus Georgiades videotaped construc-
tion of the South Avenue bridge from the south side of the river, approximately 500
feet from the project (Tr. 32, 40; Exh. C-4, C-5, C-6, C-29). Employees of the struc-
tural steel subcontractor on site, Middle States Steel (Tr. 3100ll), were moving north
to south across the top of girders, across a “pit,” or temporary walkway between
girders, (EZxh. C-13), and attempting to make connections without benefit of fall
protection (Tr. 33-39).
Ruhlin, the general contractor, did not consent to OSHA’s entry on March 31;
a warrant was obtained and Georgiades conducted an inspection of the South
Avenue worksite on April 2, 1993 (Tr. 49, 54). On that date, there were no iron-
workers on the steel (Tr. 57). Georgiades observed no permanent fall protection
other than stanchions and a hand line on the eastern row of girders (Tr. 56-57; E&L
C-7 through Cl4, C-29). Georgiades returned to the site on April 6 and April 9,
1993. On April 6 he noted additional one half inch cable strung below the top of
one girder (Tr. 69, 78; Exh. C-15). Georgiades testified that the cable was inade-
quate to serve as a catenary line; workers tied off below the level of their feet would
still be exposed to falls of over six feet (Tr. 79-80). On April 9 Georgiades found
that the hand line had been extended across the north abutment, and that an addi-
tional wire rope was strung below the top of a girder (Tr. 87).
Scott Palmer, a journeyman ironworker with Middle States, testified that in
March and April of 1993 he worked on the South Avenue bridge (Tr. 168-71).
Palmer was issued a safety belt and lanyard and had a bridge clamp to tie onto
where there was no catenary line (Tr. 184). Palmer stated that 98 to 99 percent of
the time he was tied off while making girder splices (Tr. 195-198, 203). Palmer
admitted. I however, that “99 percent of the time” there was no line to attach to while
accessing the work area, and that he would “free walk” north to south on the girders
(Tr. 190) . He also stated that at times he did not tie off while actually working (Tr.
180, 182).
David Palmer testified that no handrails were provided on the pits he used for
crossing the girders from east to west (Tr. 216), and that he did not tie off when
traveling from point to point (Tr. 218, 223, 227).
Ruhlin’s field superintendent, James Underwood, met daily with supervisory
personnel from each subcontractor to review safety procedures (Tr. 290).
Specificallv
A d
Underwood stated that he had explained Ruhlin’s policy of requiring
100% fall protection with John Daley, president of Middle States Steel (Tr. 304).
Underwood testified that he also discussed fall protection with Harvey Meyer,
Middle States Steel’s superintendent, at least three times prior to the start of steel
3
erection and again on the day girder assembly began (Tr. 291-97, 331-32; Exh. R-2,
R-3) .
Underwood, a “competent person” for purposes of the regulation, stated that
he inspected the South Avenue bridge worksite daily (Tr. 308). Underwood testified
that he inspected Middle States’ steel erection operation every day that Middle
States was on site (Tr. 309). Underwood testified that he never noted a fall protec-
tion violation during his inspections of those operations (Tr. 309, 319). Underwood
stated that on the day steel erection began he observed Middle States employees
attach a line under the top flange of a girder; he understood ironworkers would walk
the bottom flange while tied off to that line (Tr. 299-301, 343). Ironworkers he
observed on the steel were using lanyards attached to cables or a bridge clamp (Tr.
328). Underwood stated that based on his observations and the representations of
Middle States’ supervisory personnel, he believed that ironworkers were tied off
100% of the time (Tr. 327).
When OSHA first visited the worksite on March 31, 1993, Underwood had
not yet performed’ his daily inspection (Tr. 315, 337). Underwood and Jeffrey
Peecook, Ruhlin’s safety manager, inspected Middle States’ operation after speaking
to CO Georgiades (Tr. 317-18). Neither saw any evidence that ironworkers were not
tied off, and were assured by Middle States’ superintendent that the ironworkers
were working safely (Tr. 318, 368, 370, 372). Following the OSHA inspection
\ Peecook issued a letter to Middle States reminding them of their obligation to use
fall protection (Tr. 366-68).
Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must
show, inter alia, that the cited employer either knew or could have known of the
condition with the exercise of reasonable diligence. See, e.g., WaZkerTowing Cop., 14
BNA OSHC 2072, 2074, 1991 CCH OSHD li29,239, p. 39,157 (No. 874359, 1991).
In regards to multi-employer worksites, the Commission has stated that:
The duty we imposed upon a general contractor in Grossman SteeZ &
Aluminum Cop. and Ann&Johnson Co. is a reasonable one; that is, we will
4
not hold a general contractor liable for violations which it could not reason-
ably be expected to detect or prevent.
K&son Constr. Co., 4 BNA OSHC 1759, 1761, 1976-U CCH OSHD 721,185, p.
25,481 (No. 765, 1976), affd, 566 F.2d 596 (8th Cir. 1977). Moreover, the general
contractor’s duty to detect and prevent violations is not conterminous with that of the
employer creating, or immediately responsible for correcting, the hazard. In the
exercise of reasonable diligence, a general contractor may rely in part upon the
assurances of subcontractors with expertise in their areas, so long as it has no reason
to believe that the work is being performed unsafely. See; Blount International, Ltd.,
15 BNA OSHC 1987, 1992 CCH OSHD ll29,854 (No. 89-1394, 1992); Sasser Electic
and Manufactzkng Co., 1984 CCH OSHD 726,982 (No. 82-178, 1984).
Here, the record is replete with evidence of Ruhlin’s attempts to ascertain
that 100% fall protection would be provided to Middle States’ workers. Underwood
familiarized himself with the types of protection to be provided and found them
satisfactory.’ The testimony that Ruhlin’s own inspections failed to disclose iron-
workers working without fall protection is accepted; the ironworkers’ testimony indi-
cates that while making connections, they did tie off, eschewing fall protection mainly
when moving from one worksite to ‘the next, a small portion of the workday.
The undersigned finds that Ruhlin exercised reasonable diligence in
attempting to detect violations, and that Complainant failed to establish Ruhlin’s
actual or constructive knowledge of the cited hazard. Citation 1, item 2 will be
vacated.
Alleged Violation of 5 1926.701(b)
Citation 1, item 3 alleges:
29 CFR 1926.701(b): All protruding reinforcing steel, onto and/or into which
employees could fall or come against, was not guarded to the hazard of impalement:
The rebar located at the bridge abutment, north side, was not guarded.
1
CO Georgiades did not state any objections to walking on the bottom flange of the girders
while tied off to a catenary line strung below the top flange.
5
On April 2, CO Georgiades observed unguarded one inch reinforcing steel
approximately 20 inches from the north abutment of the bridge protruding approxi-
mately three feet out of the ground (Tr. 63-67; Exh. C-3, C-7). The rebar was in
plain sight, and had been in place since the concrete was poured in December or
January (Tr. 346). The jobsite, though closed down for the winter, had been
reopened since the second or third week of March (Tr. 346-47).
Georgiades testified that ironworkers had to make connections at the north
abutment; on March 31 he saw employees going onto the steel at that location (Tr.
136, 161). Employees Scott and David Palmer testified that they gained access to the
bridge at the north abutment and that a ladder had been braced against the rebar to
provide access to the beams (Tr. 172-73, 215). Underwood was aware that
ironworkers had to be in the area of the unguarded rebar in order to place the
girders (Tr. 345).
Employees could fall from the abutment to the rebar, suffering impalement
injuries to the eye or to internal organs which could result in permanent disability or
death (Tr. 137).
The violation was abated on April 5, 1993 by Ruhlin (Tr. 77).
DimmionlPenalty
The evidence establishes the cited violation and Ruhlin’s constructive knowl-
edge thereof. A penalty of $1,750.00 was proposed.
Section 17(j) of the Act provides:
The Commission shall have authority to assess all civil penalties
provided in this section, giving due consideration to the appropriateness
of the penalty with respect to the size of the business or the employer
being charged, the gravity of the violation, the good faith of the
employer, and the history of previous violations.
The Commission has further instructed:
These factors are not necessarily accorded equal weight. Generally
speaking, the gravity of a violation is the primary element in the
penalty assessment. Ttinity hdus., 15 BNA OSHC 1481, 1483, 1992
6
CCH OSHD lI29,582, p. 40,033 (No. 88-2691, 1992). The gravity of a
particular violation depends upon such matters as the number of
employees exposed, the duration of the exposure, the precautions taken
against injury, and the likelihood that any injury would result. LA.
Jones, 15 BNA OSHC at 2214, 1993 CCH OSHD at p. 41,032.
Ruhlin is a large company, with over 200 employees (Tr. 128). Complainant’s
proposed penalty contains a 10% reduction for Ruhlin’s prior history (Tr. 128). No
evidence of bad faith was adduced at trial; the violation was promptly abated (Tr.
325). The gravity of the cited violation was correctly assessed as high. All of Middle
States Steels’ employees were exposed to the unguarded rebar every time they
accessed or exited their worksite. The injury which could have been sustained in a
fall would in all probability have been severe. The likelihood of a fall from the abut-
ment is greater than that of a fall into the rebar from the ground.
Taking into consideration the relevant factors, the proposed penalty is found
appropriate; $1,750.00 will be assessed.
Alleged Violation of $1926.20(b)(2)
Citation 1, item 1 states:
29 CFR 1926.20(b)(2): Th e employer did not initiate a program that provided for
frequent and regular inspections of the jobsite, materials and equipment, by compe-
tent person(s) designated by the employer:
On site: In that during the course of the OSHA inspection, alleged violations of 29
CFR 1926 were documented which a competent person should have identified and
had corrected during the course of the required frequent and regular inspections of
the jobsite.
The cited standard provides:
(b) Accidertt prevention respmsibilities. (1) It shall be the responsibility of the
employer to initiate and maintain such programs as may be necessary to com-
ply with this part.
(2) Such programs shall provide for frequent and regular inspections of
the job sites, materials, and equipment to be made by competent persons
designated by the employers.
Complainant in this matter presented no evidence evaluating Respondent
Ruhlin’s safety programs or inspection schedules, but relied wholly on the existence
of the two 51926 violations cited above to prove its case. The undersigned finds that
in the absence of any evidence suggesting the contents of an adequate program, the
mere existence of the alleged violations, even where proved, is insufficient to estab-
lish a violation of $1926.20(b).
Ruhlin’s safety program provided for daily inspections of the jobsite by a
competent person. As discussed in item 2 above, the testimony establishes that
Ruhlin exercised due diligence in supervising the steel erection operation. The per-
sistence of the rebar violation at item 3, though affirmed, may be attributed to causes
other than a failure to inspect2, and this judge declines to draw from it an inference
that inspections were neither frequent nor regular.
Item 1 will be dismissed.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a deter-
mination of the contested issues have been found specially and appear in the deci-
sion above. See Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
- Citation 1, item 1 is VACATED.
- Citation 1, item 2 is VACATED.
- Citation 1, item 3, alleging violation of $1926.701(b) is AFFIRMED and a
penalty of $1,750.00 is ASSESSED.HRCDated: -wril 29, NW
2
CO Georgiades testified that Underwood was aware of the unguarded rebar, but had come
late to the South Avenue bridge site and hadn’t gotten around to guarding it yet (Tr. 143-44).
8
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