Zenith Tech, Inc.

Plain-English summary

Zenith Tech performed bridge-demolition work on a Milwaukee freeway project. OSHA alleged that employees cutting rebar, attaching lifting chains, and cleaning the deck came too close to an unguarded opening about 15 feet above the ground. The compliance officer estimated distances from about half a block away and did not observe anyone clearly within the five-foot zone he considered hazardous. Employees with direct knowledge testified that the relevant work stayed about seven feet or more from the opening and that a guarded route was available. The citation was vacated because OSHA did not prove employee exposure.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
• Outcome: Serious open-sided floor citation vacated
• Key point: Distant estimates did not outweigh direct evidence that employees remained outside the asserted fall-hazard zone.

Full text (OSHRC public release)

                          UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           One Lafayette Cent-
                     1120 20th Street, N.W. - 9th Floor
                        Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-1552
ZENITH TECH, INC.
Respondent.

                 NOTICE OF DOCKETING ’
           OF ADMINISTRATIVE IAW JUDGE’S DECISION
 The Administrative Law Judge’s Re art in the above referenced case was

docketed with the Commission on Marc1 17, 1995. The decision of the Judge
will become a final order of the Commission on April 17, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF ‘IME JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secret on or before
April 4 1B95 in order to ermit sufficient time for its review. Y ee
Commission Rule 91, 29 e:.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occu.ational 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. Mi& Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

                                   fy&+tP-lBKrr

Date: March 17, 1995 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 94-1552

NOTICE IS GIVEN TO THE FOLLOWING:

John H. Secaras, Esq.
Re lonal Solicitor
O&e of the Solicitor U.S. DOL
230 South Dearborn St.
Chicago, IL 60604

Janice M. Pogorelec, Esq.
Krukowski 4%Costello
71111 West Edgerton Avenue
PO Box 28999
Milwaukee, WI 53220

Benjamin R. Lo e
Administrative iTaw Jud e
Occupational Safe9 an d Health
Review CornmissIon
Room 250
1244 North S eer Boulevard
Denver, CO tr0204 3582

00103470910:05
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                                                UNITED S’W’E$ OF AMERICA
                           OCCUPATIONAL SAFElY AND ,HEALTH REVIEW COMMISSION
                                                1244 N, Speer Boulevard
                                                      Room 250
                                              Denver, Colorado 802044582




 SECRETARY OF LABOR,
      Complainan&

                      v.                  ,                           OSHRCDOtXET
                                                                      NO. 944552
 ZENITH TECH, INC.,

                      RespondeM.



 APPEARANCES:

                      For the Complainanti
                             Helen J. Schuitmaker, office of the Solicitor, U.S. Department of Labor,
                              Chicago, Illinois

                      For the Respondent:
                             Timothy G. Costello, Esq, Janice M. POgorelec, Esq., Krukowski and
                              Costello, Milwaukee, Wismnsin


 Before:                     Administrative Law Judge Benjan& R Loyc


                                                     ION AND ORDm


                      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, Zenith Tech Inc. (Zenith), at all times relevant to this actjon main-
     tained a worksite at the Airport Freeway Project in Milwaukee, Wisconsin, where it was
         engaged in bridge demolition. Respondent admits it is an employer engaged in a busi-
         ness afkcting commerce and is subject to the requirements of the Act.

On April 25,1994, pursuant to an investigationsof Zenith’s airport freeway work-
site, the Occupational Safety and Health Administration (OSHA) issued a citation,
together with proposed penalties, alleging violation of ~1926SOO(d)(l) of the Act. By
filing a timely notice of contest Respondent brought this proceeding before the Occupa-
tional Safety and Health Review Commission (Commission).
On December 1,1994 a hearing was held in Milwaukee, W&cons&. The parties
have submitted brie& on the issues and this matter is ready for disposition.
@leged Violatioq
. Setious citation 1, item la alleges:
29 CFR 1926.500(d)(1): Opensided floors or platforms, 6 feet or more abwe adjacent
floor or ground level, were not guarded by a standard railing or the equivalent on all
open sides:

(a)     Employee(s) working on the North end of the bridge deck burning rebar and
        removing concrete slabs, were not protected from f&lling into the opening created
        by the slab of concretei deck that had been removed.

Facts
        on April 14,1994, as he approached Respondent’s worksite, OSHA compliance
Officer (CO) Donald Zehm observed Zenith employees standing on the f& side of a
broom that was approximately Eve feet from an unguarded opening in the bridge being
demolished (Tr. 28, 51). iehm stated that employees sweeping within Eve feet of the
unguarded hole would be exposed to a fall hazard (Tr. 56,62).
        A chain sling had been wrapped arod      the parapet, or concrete ban&&,    which

               1 the edge of the bridge surf&e Q’r. 39). CO Z&m did not take any
projected up from
measurements, but estimated that the employee who hooked up the chain would be
within two to three feet of the opening in the bridge pr. 42,49,62).
        Z&m also noted an employee, Dan Steel, on his lrnees in the area cutting r&ar
with an oxygen acetylene torch PI. 28-39, 60). Z&m testified that empm             waking .
back and forth in the area to adjust the gas cylinders supplying the cutting torch, which
were located in a rubber tire vehicle parkexi on the bridge, would pass near the bridge
hole (Tr. 47).

The distance from the bridge to the grass embankment below was approximately
15 feet (Tr. 41).
Zenith’s job foreman, Harvey Mann, testified that the chain sling was centered on
the cut length of bridge parapet (Tr. 99). The length of parapet was between 16 and 19
feet long; each of the two chains comprising the slini were approximately a foot and one
half to two feet off the center (Tr. 99, lO& Exh. R-B, RX). Mann estimated that the
distance from the chains to the unguarded bridge opening was approximately seven fti
pr. 99; See also testimony of Dan Steel, Tr. 124). Mann f&her testified ‘that the swept
area noted by the Co was cleaned off before the first slab of pavement was removed,
creating the cited opening (I%. 103), and that a guarded waIkway for the passage of
employees had been created on the other side of the rubber tire vehicle (Tr. 49-50).
Steel testified that when CO Zehm arrived on the worksite, he was cutting rebar
to enable the removal of the next slab of pavement, approximately 16 feet from the
unguarded opening pr. 123). The controls for8 the burning torch Steel was using are
located on the torch wand (Tr. 99-100).
Discussioq
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must
show by a preponderance of the evidence that employees had access to the violative
condition. S& eg, Wulker Towing Corp., 14 BNA OSHC 2072,199l CCH OSHD V29,239
(No. 87-1359, 1991). In order to show employee exposuft, the Secretary must prove that
employees have been, are, or will be in the “zone of danger” either during their ass@ned
working duties, their personal comfort activities while on the jobsite, or their movemeat
along normal routes of ingress to or egress fkom their a~~igncd workplaa-Kirrprv
Ekampkw CcRp 16 BNA OSHC 1517,1994 OCH 06HD WI,303 (No. 9&286&1993).
Here, the zone of danger is &at area from which an employee might fkl~tbrough
the open bridge hole. The CO testified, and this judge agrq that an employee of
average height, between five and six feet, would be exposed to the fti hazard in an area
extending approximately Eve feet Tom an unguarded edge. However, the CO did not
actually see any employees standing closer than what he estimated to be five feet fkom
the unguarded edge; moreover, his estimates of distance were made from a haIf block

                                          3   .

aMy (Tr. Sl), and were contradicted by employees with first hand knowledge af the
working conditions and procedures.
Complainant failed to establish that Zenith’s employees actually came, or could
have reasonably been expected to coII[1ccloser than approaimately seven feet from the
unguarded bridge hole. The Secretary failed to prove employee exposure to the cited
hazard. The citation must, therefore, be dismissed.
J3ndin~ of Fact and Conclusions of Law
All findings of f&t and concltions of law relevant and necessary to a determh-
I
tion of the contested issues have been found spe&lly and appear in the decision &cwc.
See Rule 52(a) of the Federal Rules of Civil Procedure.

                                        ORDER
10     Serious citation 1, item la, alleging violation of ~1926Soo(d)(l) is VACKIED.




Dated= March 10, 1995




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