E & R Erectors, Inc.

Read the official release (oshrc.gov)

Plain-English summary

OSHA inspected the steel erection at the ASTM International Headquarters
construction site in West Conshohocken, Pennsylvania, and cited E & R Erectors,
Inc. E & R claimed it was not on the site that day, so the Secretary amended the
complaint to add two related companies, Samuel Grossi and Sons, Inc. and
Bensalem Steel Erectors, Inc. The central question was which company employed
the ironworkers doing the cited work. Judge John H. Frye, III found the workers
were E & R's employees, based on identifications by the general contractor's
superintendent and by the ironworkers themselves, and dismissed the complaints
against Grossi and Bensalem, who were found not to be erecting steel at the site.

On the merits, the judge affirmed both remaining items against E & R (a third
item had been withdrawn before trial). The serious item was a fall-protection
violation under § 1926.105(a) for failing to provide safety nets or equivalent
protection at heights where it was required; the judge rejected the argument that
the newer Subpart R steel-erection rules displaced § 1926.105(a) and assessed the
proposed $3,000 penalty. The other-than-serious item under § 1926.550(a)(9)
concerned crane operation and carried no penalty. Total penalty: $3,000 against
E & R Erectors, Inc.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a) (serious), § 1926.550(a)(9) (other than serious)
• Outcome: Both items affirmed against E & R Erectors ($3,000 serious, no-penalty other-than-serious); complaints against Samuel Grossi and Sons and Bensalem Steel Erectors dismissed
• Key point: OSHA can pin a citation on the company whose workers were identified on site, and § 1926.105(a) fall protection still applied to steel erection at this site.

Full text (OSHRC public release)

```text
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                         Phone: (202) 606-5 100

SECRETARY OF LABOR Fax: (202) 606-5050
Complainant.
A /
v. OSHRC DOCKET
NO. 95-0190
E & R ERECTORS, INC.
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 February 22, 1996. The decision of the Judge
will become a final order of the Commission on March 25, 1996 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
March 13, 1996 in order to ermit sufficient time for its review. See
Commissron Rule 91, 29 C.if .R. 2200.91. .
All further 1. zadings or communications .regarding this case shall be
addressed to:
Executive Secretary
Occupational Safetyand Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date:’ February 22, 1996
DOCKET NO. 95-0190
NOTICE IS GIVEN TO THE FOLLOWING:

Deborah Pierce-Shields
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
14480 Gatewa Building
3535 Market Htreet
Philadelphia, PA 19 104

John Phili Diefenderfer, Es .
Attorney Por E&R Erectors, 4nc.
340 Harrisbur School Road
Quakertown %ucks Cou, PA 18951

John H. Frye, III
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00123254369:03
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ROBERT REICH, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR

          Complainant,
                                                                       I




          v.                                    Docket Nr. 95-0190

E & R ERECTORS, INC./
SAMUEL GROSSI AND SONS, INC., and
BENSALEM STEEL ERECTORS, INC.,

          Respondents.

Appearances

Thomas S. Williamson, Jr., Esq. John Philip Dief-enderfer, Esq.
Solicitor of Labor Quakertown, PA
For Respondent
Deborah Pierce-Shields, Esq.
Regional Solicitor

Gayle M. Green, Esq.
Attorney

U.S. Department of Labor
Philadelphia, PA
For Complainant

BEFORE: JOHN H FRYE, III, Judge, OSHRC
 DECISION AND ORDER

                             INTRODUCTION

       This case arose out of the inspection of the construction      of

the ASTM International Headquarters Building in West Con&&o&en,

PA, conducted by Compliance Officer George Boyd on December 1,

1994 l As a result of the inspection, OSHA issued two citations to

E & R Erectors, Inc. A notice of contest was filed, and the

Secretary filed a complaint against E & R. After E & R claimed

not to have been present on the ASTM site on December 1, the

Secretary amended the complaint to join Bensalem Steel Erectors,

Inc., and Samuel Grossi and Sons, Inc., both of which are related

to E & R. Trial took place on September 29, 1995, in

Philadelphia, PA. Prior to trial, the Secretary withdrew Citation

No. 1, Item No. 2.

                       IDENTITY OF THE COMPANY
                 PERFORMING THE WORK WHICH WAS CITED

       E & R relies on the testimony of Eugene Grossi, its vice-

president, as well as president and chief operating officer of

Samuel Grossi and Sons, Inc., to establish that it was not at the

ASTM site (Tr. 89, 94). Mr. Grossi testified that E & R does not

work in Pennsylvania because it believes that it is being harassed

by OSHA's Allentown office. (Tr. 94-95,) He produced payroll

                                  2

records for E & R for the weeks ending November 29, December 6,

and December 13, 1994, for jobs in New Jersey. (Tr. 94, RX 2.)

 Samuel Grossi and Sons had been awarded a contract to furnish

and erect the steel, joist, and metal deck for the ASTM

International Headquarters by the general contractor, John McQuade

Construction. (Tr. 111-12.) Mr. Grossi produced a subcontract

between Samuel Grossi and Sons, and Bensalem Steel Erectors which

covered the erection of structural steel, studs, and metal deck.

(Tr. 92-93, RX 1.) Mr- Grossi maintains that the contractor on

the site - presumably the one to which the citations should have

been directed - was Bensalem. Bensalem is run by Mr. Grossi's

niece and son, its principal officers. (Tr. 93,)

 The Secretary points out that he cited E & R Erectors,         Inc.

because:

 1)    the superintendent of the general contractor
       on site, John McQuade Construction,
       identified the ironworkers as employees of E
       & R Erectors, Inc.   (Tr. p. 15-16);

 2)    the ironworkers identified themselves as
       employees of E & R Erectors, Inc. (Tr. p.
       18) ;

 3)    the ironworkers' foreman, Mr. Brown, told
       him that he worked for E & R Erectors, Inc.
       (Tr. p. 1849, 72);

 4)    Walter Cantley introduced himself at the
       worksite as the superintendent of E & R
       Erectors, Inc. (Tr- p. 48, 72);


                                 3

5) Mr. Cantley represented E & R Erectors,
Inc., at the closing conference at the
worksite (Tr. p- 48) -

   Indeed, subsequent to the issuance of the citations, Mr.

Cantley attended the Informal Conference and discussed the

citations at the OSHA area office. (Tr. p. 111). Samuel Grossi,

who testified for respondent, conceded that Mr. Cantley was the

supervisor for E & R Erectors, Inc., and that he does not work for

either Bensalem Steel Erectors, Inc. or Samuel Grossi and Sons,

Inc. (Tr. p- 106-107).

   E    & R objects that Mr. Boyd's testimony on this point is

hearsay. However, Mr. Boyd testified as to what he had been told

by E & R employees.' It is well-settled that such representations

are admissions under Federal Rule of Evidence 801(d)(2) (D) and are

not hearsay.

   The -evidence thus clearly shows that, even if the subcontract

for steel erection at the ASTM headquarters was initially awarded

by Samuel Grossi and Sons, Inc. to Bensalem Steel Erectors, E & R

Erectors, Inc, was present at the site at the time of Mr. Boyd's

inspection, performing the work which gave rise to the citations.

1
In one instance, Mr. Boyd related the representation of the general
contractor's site superintendent. While this individual is not an E & R
employee, there is no reason to question the reliability of his representation.
He clearly was in a position to know the identity of the companies working on the
site and would have no obvious reason to misrepresent the facts. I find that
this statement meets the requirements of Federal Rule of Evidence 803(l).
4
Conversely, other than the subcontract, there is no evidence that

Bensalem was engaged in the steel erection in question, and the

uncontradicted evidence indicates that Samuel Grossi and Sons does

not engage in that activity. Consequently, the complaints against

these companies must be dismissed.2

                              THE CITATIONS

   To    establish a violation      of any standard, Complainant must

establish the applicability of the standard, non-compliance,

employee exposure or access, and employer knowledge of the

condition. Dun-Par Engineered Form ComDany, 12 BNA OSHC 1949 (No.

79-2553)' RevId and remanded on other aroux& ' 843 F-2d 1135 (8th

Cir. 1988)' decision on remand, OSHRC docket No. 79-2553 (April

12' 1989).

     .     .
     Irtatlon No . 1, Item No- b

   The standard at 29 C-F-R- § 1926.105(a) provides,           in relevant

part, that:

           Safety nets shall be provided when workplaces are 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 is impractical.

2
The Secretary urges that I find that Bensalem and E & R are so closely related
as to constitute a single enterprise in which the employees of one may be treated
as the employees of the other. The Secretary's evidence on this point is weak.
Moreover, because the evidence clearly shows that E & R, the original Respondent,
was present at the site and conducted the activity which was cited, there is no
need to reach this issue.
5
 Section 1926.105 (a> applies to the steel erection industry

and requires the use of one of the appropriate listed devices to

protect against exterior falls. Century Steel Erectors. Inc. v.

Secretar& 14 OSHC 1273 (D.C. Cir. 1989); Brock v. willson & Sons,

773 F.2d 1377, 12 OSHC 1499 (D.C. Cir. 1985). The Secretary

establishes a prima facie case upon showing that the employees

were exposed to a fall in excess of twenty-five feet and that none

of the protective measures was used. Century Steel Erectors, Inc.

v. Secretary, 14 OSHC 1273 (D.C. Cir. 1989). An employer may be

cited for a violation of Section 105(a) in situations where safety

belts and lines are the more practical forms of fall protection

than nets. Secretary v. Anderson Excavating, 16 BNA OSHC 1601

(1993); Potomac Iron Works, 16 BNA OSHC 1299) (1993); Williams

Erection, 15 BNA OSHC 1463 (1992).

 At the worksite, ironworkers were installing 27 foot steel

columns, each weighing approximately 6,300 pounds, on the third

floor (Level B-l) of a three-story pre-cast concrete building that

had no walls. (Tr. p. 17-18, 23, 31). Inspector Boyd observed the

following-procedure for setting the columns:

          1.   The foreman marks the columns, which are lying on

the floor, to show the sequence in which they should be installed;

                                 6

2. The workers, via radio, direct the crane operator

where to boom over and place the loadline so it is above a column;

             3.   The workers attach the column to the load line with

shackle and wire rope sling, and direct the crane operator to lift

the load, suspending it vertically by the load line;

             4.   Two workers then walk the column to where it is to

be bolted up, while one worker directs the crane operator by

radio;

             5.   The workers orient the base plate of the column

with four bolts in the appropriate imbed plate that is in the

concrete deck, and lower the column onto the four bolts, rotating

the column as necessary; and

             6.   The workers hand tighten nuts onto the bolts and

then use a power wrench to fully tighten them. (Tr. p. 19-23, 26)

    When Inspector Boyd arrived at the worksite, he observed that

guard rails were missing on the southeast corner of the structure.

These had been removed because they had been built over the imbed

plates and would have interfered with the erection of two columns,

which were put in place at approximately . 10:00 a.m. on December 1,

1994. (Tr. p. 23-24, 102). Although they were working at the

edge of the *open-sided floor, the employees were not wearing fall

protection while erecting these two columns, nor was any form of

                                    7

fall protection was available to them. (Tr. p. 25) They were

exposed to a fall hazard of approximately 33 feet on one corner

where the column was set and approximately 30 feet in the other

location where the column was set. (Tr. p. 25, 28-34, 126; GX 2,

GX 3). At one location, the employees would have been standing

within inches of the unguarded open-sided floor. (Tr. p. 27).

Death could result from a fall from these locations. (Tr. p. 28).

    The foreman was working in the area where the columns were

installed. The lack of guardrails was obvious and could be seen

from anywhere on the third floor. (Tr. p. 35-X). Fall protection

could have been provided by using a safety belt or harness and a

life line attached to an available imbed plate. (Tr. p. 36-37).

    E & R argues that fall protection requirements         applicable   to

steel erection are contained in Subpart R, not 5 1926.105(a),

which is a part of Subpart K3 It rests this argument on OSHWs

promulgation of a Final Rule, Safety Standards for Fall Protection

in the Construction Industry, 59 Fed. Reg. 40672, August 9, 1994.

That rule did incorporate the fall protection provisions of §

1926.105(a) in $$ 1926.753 of Subpart R pertaining to steel

erection. That change did not take effect until after the

3
E & R apparently also believes that it was cited under Subpart M, Fall
Protection. See its brief, p-6-7. This is not the case.
8
inspection and alleged violation in this case. See 59 Fed. Reg.

40672. Consequently, § 1926.lOS(a) is fully applicable.

       E & R challenges Mr. Boyd's location of the two columns on
       

the southeast corner of the building. At the hearing, Mr. Grossi

marked GX 2, indicating his opinion that they were on the

northeast comer. (Tr. 96; GX 2.) Apparently concerned that his

position was not made clear at trial, Mr. Grossi submitted an

affidavit with E & R's brief to which is attached a landscape plan

for the ASTM Headquarters site. Mr. Grossi indicated that the

columns were on the southeast corner of the building depicted on

the landscape plan, in the same location where Mr. Boyd placed

them. Consequently, I do not consider Mr. Grossi's testimony on

this point to be reliable. I accept Mr. Boyd's testimony as

accurate.

    E & R also challenges Mr. Boyd's conclusion       that the vertical

distance from the location of these two columns to the ground was

approximately 33 and 30 feet, respectively. In order for 5

1926.105(a) to be applicable, this distance must be more than 25

feet. The Secretary introduced GX 3, which is an architect's

drawing of an exterior wall showing the elevations of level BI,

where the E & R employees were working, and P3, ground level. Mr.

Grossi indicated that this drawing furnished a way to estimate the
vertical distance "pretty well." (Tr. 100.) The drawing shows

that the overall vertical distance from Bl to P3 is 29 feet.

However, it also shows that earth has been filled up against the

side of the building, thus reducing the vertical distance to some

extent.

    At trial, there was considerable discussion of whether the

columns in question were located over an area where soil had been

excavated next to the building to permit trucks to back down to a

loading dock, thus increasing the vertical distance, and, if not,

whether earth had been backfilled, thus reducing the vertical

distance. 1 find that it is not necessary to resolve this

dispute.

    GX   3 provides    sufficient information to conclude that the

vertical distance was at least 25.5 feet. Specifically, it shows

that the vertical distance between 81 and Pl is II feet, between

PI akd P2 is 9 feet, and between P2 and the bottom of an opening

in the panel enclosing level P3 is 5.5 feet, a total of 25.5

feet4 The drawing depicts the backfill at a level below the

bottom of the opening in the panel and sloping away from the

building. Section 1926.105 (a) is applicable.

4
Mr. Grossi calculated this distance to be 24 feet. (Tr. IOO-01.) However, it
is obvious that he overlooked the portion of the panel at the top of the opening.
This is 1.5 feet.
10
 The Secretary introduced evidence that the use of safety

belts or a harness and life line would have been practical in this

situation. Mr. Boyd testified that the easiest way to provide

fall protection would have been to attach a life line for each

exposed employee to one of the numerous imbed plates on the third

level. Specifically, he testified that a shackle could have been

attached to the imbed plate, with a lifeline attached to the

shackle, and a rope grab and a lanyard attached to the life line.

A retractable life line could have been used. (Tr. p. 37) If

tied off in this fashion, the employee would have been free to

move around, take down and replace the guardrails, and position

and bolt up the CO~UTIIIIS.
(Tr. p. 37-39, 132) Mr. Grossi conceded

that, if tying off were required, Mr. Boyd's recommendation would

be an option, and probably would have been used. (Tr. p. 102)

    In its brief, E & R argues that Mr. Boyd conceded that the

use of safety nets was not practical? It also argues that, I

under the peculiar circumstances of the erection of the columns,

life lines were also impractical in that they restrict the

movement of the employees and make it difficult for them to avoid

an out-of-control column.

                                         ‘

5
E & R uses the term "feasible," which statesa different requirement than
"practical/ the term which appears in § 1926.105(a). Centurv Steel, supra.
I have substituted the latter for the former where it appears in E & R's brief.
11
 E & R misreads Mr. Boyd's testimony with regard to safety

nets. Mr. Boyd regarded nets as impractical because the employees

installing them would be subjected to a fall hazard, not because

they would be ineffective or overly difficult to install. (Tr. 39.

40.) As the Secretary points out, if in fact life lines are

impractical for the erection of the columns because they restrict

the movement of the employees, the simple answer is to use life

lines while installing the nets. Mr. Boyd obviously felt that

life lines could be used during the erection of the columns

themselves, thereby avoiding the necessity of nets and simplifying

the job. E & R has not refuted the Secretary's prima facie case

that a practical means of fall protection was available.

    The Secretary has demonstrated   that E & R was-in serious

violation of § 1926.105(a). He has proposed a penalty of $3,000,

and Mr. Boyd testified as to how this was computed. E & R has not

contested the amount. I find that $3,000 is appropriate and

assess it.

Citation No. 2

    The standard at 29 C.F.R. §1926.55O(a)(9)   provides,   in

relevant part, that:

    Accessible areas within the swing radius of the rear of the
    rotating superstructure of the crane, either permanently or
    temporarily mounted, shall be barricaded in such a manner as

                                12

to prevent an employee from being struck or crushed by the
crane.

    On this jobsite, Respondent was operating a Hawthorne               lattice

boom crane. (Tr. p. 45) Thus, the standard is applicable. The

swing area or counterweight was not flagged off or barricaded to

prevent employees from walking through the area. (Tr. p. 46) In

fact, one of the two operators of the crane was in the swing area.

(Tr. p. 46) The operator told Inspector Boyd that he was an

employee of E & R Erectors. (Tr. p. 77) In addition, the area was

subsequently flagged off, and Mr. Cantley, superintendent for E &

R Erectors, walked underneath the yellow flagging and proceeded

though the entire counterswing area. (Tr. p. 48) Thus, employee

exposure and employer knowledge is established. The violation was

obvious. (Tr. p. 47-48) The Secretary has established a prima

facie case for a violation of the cited standard. E & R has not

addressed this citation in its brief. Accordingly, it has

abandoned any defense to the substance of this charge?

      This violation was appropriately cited as Other-than-Serious

in that there was no pinch point in which the employee could have

been crushed between a counterweight and a stationary object.

6
Mr. Grossi indicated that E & R does not employ any crane operators.(Tr.
105.) I find Mr. Boyd's testimony that one of the crane operators indicated that
he was employed by E & R to be more reliable- In its brief, E & R defends on the
ground that it was not at the site. This defense has been rejected.
13
(Tr. p. 47) Accordingly, the $00 penalty proposed is appropriate

and reasonable and is assessed.

                                    CONCLUSIONS        OF LAW

    A.         Respondent     E & R Erectors,         Inc.,    is an employer engaged              in a

business affecting commerce within the meaning of section 3(5) of the

Occupational Safety and Health Act of 1970, as amended, 29 U.S.C.

§ 652(5) ("the Act").

    B.         Jurisdiction       of this    proceeding       is conferred      upon    the

Occupational Safety and Health Review Commission by section 10(c) of the

Act, 29 U.S.C. § 659(c).

Citation 1, Item 1.

    c.         Respondent     E & R Erectors,         Inc.,    was in serious      violation           of

the standard set out at 29 CFR §§ 1926.105(a). A penalty of $3000 is

appropriate.

Citation 2, Item 1

    D.         Respondent     was E & R Erectors,           Inc.,    in other-than-serious

violation of the standard set out at 29 C.F.R. § 1926.550(a)(9). A

penalty of $00 is appropriate.

      E.       Respondents        Samuel   Grossi    and   Sons,    Inc.,   and Bensalem          Steel

Erectors, Inc., were not engaged in erecting steel at the ASTM

Headquarters site.

                                                14

ORDER

     A.     Citation    1, Item    1, is affirmed      as a serious    violation     of the

Act.

     B.     Citation    2, Item    1, is affirmed      as an other-than-serious

violation of the Act.

     C.     A total    civil    penalty    of $3,000   is assessed    against     E & R

Erectors, Inc. I

     D.     The   complaints     against    Samuel   Grossi   and Sons,   Inc.,    and

Bensalem Steel Erectors, Inc., are dismissed.

It is so ORDERED.

Dated: m22199s
Washington, D.C.

                                            15

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