Traylor Brothers, Inc.

Plain-English summary

Traylor Brothers was the general contractor on a bridge project where a subcontractor's employee attached his safety lanyard to a suspended track during form-setting work. The track slipped from its clamp, fell from the bridge, and pulled the employee into the river, where he drowned. The judge found that the unbolted track was not a secure anchorage capable of protecting the employee. Traylor had reviewed and approved the system, regularly observed the work, and had authority to require the subcontractor to comply. Its employee-misconduct defense failed because the problem was the unsecured anchorage, not the subcontractor's use of metal clamps instead of nylon chokers. The serious violation was affirmed with a $5,600 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.502(d)(15)(i)
• Outcome: The serious fall-arrest anchorage violation was affirmed, and a $5,600 penalty was assessed.
• Key point: A general contractor was responsible for a subcontractor's unsafe fall-protection system when it approved the system, supervised the work, and could require abatement.

Full text (OSHRC public release)

TRAYLOR BROTHERS, INC.,
OSHRC Docket No. 96-595

APPEARANCES:

      Sharon D. Calhoun, Esquire                                   Mr. Joseph W. Annakin
         Office of the Solicitor                                      Administrative Vice-President
         U. S. Department of Labor                                    Traylor Brothers, Inc.
         Atlanta, Georgia                                             Evansville, Indiana
               For Complainant                                              For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                     DECISION AND ORDER

      Traylor Brothers, Inc. (Traylor), as general contractor, is expanding a bridge across the

St. Johns River in Jacksonville, Florida. The project began in 1993 and is continuing. In
October 1995, a piece of 30-foot track fell from the bridge during form-setting operations. A
subcontractor’s employee, whose lanyard was attached to the track, was pulled into the
river and drowned. As a result of an inspection, the Occupational Safety and Health
Administration (OSHA) cited Traylor for failing to properly anchor fall protection equipment as
required by 29 C.F.R. §1926.502(d)(15)(i) and proposed a penalty of $5,600. Traylor timely
contested the citation (Tr. 5).

      Traylor stipulates that it is an employer engaged in a business affecting commerce within

the meaning of § 3(5) of the Occupational Safety and Health Act (Act) (Tr. 4). The facts
surrounding the accident are not in substantial dispute.

                                          The Accident

      Traylor, a national construction company with its principal place of business in Evansville,

Indiana, contracted with the State of Florida to enlarge the Buckman Bridge carrying I-295 traffic
across the St. Johns River in Jacksonville, Florida. The project involves constructing two new
bridges and rehabilitating the existing bridge. Each bridge is 16,500 feet long (Exhs. R-1, R-2;
Tr. 13, 115). Except for a few jobs, Traylor, with 200 employees working on the project,
performs most of the work (Tr. 12, 116).
In July 1993, Traylor subcontracted the deck-forming work1 on the project to Modern
Bridge Forming Company, Inc. (Modern). Modern began work in December 1993. Modern was
to place and strip the formwork for the bridge deck (Exh. R-1; Tr. 14, 24). To set the forms,
Modern used a specially developed form-setting machine (Tr. 28, 50). The machine, 40 feet long,
ran on tracks welded inside 6-inch channel iron, which were placed on the concrete girders.2 The
track permitted the form-setting machine to roll across the bridge setting the individual form
panels between the concrete girders (Exhs. C-1, R-15; Tr. 15, 50-51, 156).
To lay the track, the form-setting machine used its jib crane to lift a piece of 30-foot track,
weighing 1,600 pounds, and place it on the concrete girder in front of the machine. The track
was lifted by nylon chokers or metal clamps attached to the ball of the jib crane (Exhs. C-1, C-2,
C-3). With the track suspended above the concrete girder, an employee straddling the track
walked out on the girder to the end of the track. He positioned the shoes3 attached to the track
on the girder. Once the track was positioned, another employee at the form-setting machine set
the track down on the girder and bolted the track. The track was released from the crane (Exh.
R-15; Tr. 32, 55, 57, 70, 133). The process was repeated each time a 70-foot span of the bridge
was fitted with tracks. Each span took approximately one hour to complete (Tr. 54-55).
Eighty percent of the bridge is approximately 10 feet above the river. At the lower level,
employees were required to wear personal floatation devices (Tr. 31, 129). However, over the
intercoastal waterway, the bridge rises to over 65 feet above the river. As the decking work
reached the intercoastal waterway, Traylor and Modern discussed fall protection (Exh. R-6;
Tr. 16-17). During the track-laying operation, the employee positioning the track on the
girder in front of the form-setting machine was not protected from falling by guardrails or safety
nets (Tr. 30, 60). Traylor and Modern decided to attach a cable along each piece of track so that

     1

     Robert Quinn, Traylor’s project manager, testified that Traylor was capable of doing the deck-forming work itself

(Tr. 116).
2

    Concrete girders are parallel supporting members of the bridge that support the roadway. The girders are 18 inches

wide and approximately 9 feet apart (Tr. 31, 51, 61).
3

     Shoes or blocks are attached to each track to support the track above the rebar in the concrete girder.

the employee could tie off with a safety lanyard (Tr. 16, 32-33, 66). Traylor thought that two 6-
foot nylon chokers attached to the ball on the jib crane would hold the track until it was bolted
into place (Tr. 144, 155).
In the spring of 1995, Modern began using this fall protection system when laying track
for its form-setting machine (Tr. 133). Modern brought a second form-setting machine to the
project. Instead of using nylon chokers to hold the track, the second machine used metal clamps
(Tr. 57-58).
On October 23, 1995, both form-setting machines were being used by Modern. In the
lead machine, form-setters Maurice Shipman and his brother-in-law, Alex Crews, were setting
track approximately 40 feet above the river. Shipman was standing in front of the form-setting
machine on the concrete girder positioning the track (Tr. 39). His safety lanyard was attached to
the cable installed along the track. Metal clamps were used to hold the track by the crane. It
was approximately 11:00 a.m. For reasons unknown, the track tipped up, slipped from the metal
clamp, and fell from the bridge. With his lanyard attached, Maurice Shipman was pulled into the
river and drowned (Tr. 69-70, 78-79, 92-93).
OSHA Compliance Officer Linda Campbell conducted an accident inspection. As a result,
Modern4 and Traylor received citations. Traylor’s citation alleges a violation of
§1926.502(d)(15)(i) in that “an employee was attached to a cable that was attached to an
unsecured rail that was not capable of supporting at least 5,000 pounds per employee attached,
exposing the employee to a fall hazard, on or about 10-23-95.”
Traylor terminated Modern’s subcontract in the spring of 1996. According to Robert
Quinn, project manager, the termination was due to Modern’s continued problems with fall
protection, its lack of performance, and the lack of safety awareness (Tr. 140-141).
Traylor asserts that, as general contractor, it was not responsible for conditions created by
Modern and for which Traylor’s employees were not exposed. Traylor argues that the fall
protection system discussed with Modern complied with the standard. Any violation was due to
employee misconduct because of the use of the metal clamps.

                                              Discussion

   4

   Modern’s citation included an alleged willful violation of §1926.502(d)(15)(i) (Exh. R-15).

The Secretary has the burden of proving a violation of a safety standard by a
preponderance of the evidence. To establish a violation, the Secretary must show that (1) the
cited standard applies to the alleged condition; (2) the terms of the standard were not complied
with; (3) employees were exposed to or had access to the violative condition; and (4) the
employer knew or could have known of the violative condition with the exercise of reasonable
diligence. Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1221-22, 1991-93 CCH
OSHD ¶ 29,442, p. 39,678 (No. 88-821, 1991).

                                Alleged Violation of §1926.502(d)(15)(i)

     The standard5 requires that “anchorages used for attachment of personal fall arrest

equipment shall be independent of any anchorage being used to support or suspend platforms and
capable of supporting at least 5,000 pounds (22.2 kN) per employee attached . . . .” Section
1926.500(b) defines “anchorage” as “a secure point of attachment for lifelines, lanyards or
deceleration devices.” Traylor does not dispute the application of the fall protection
standards at Subpart M, (§1926.500, et seq.) to the construction work performed on the
Buckman Bridge project. The fall protection system used by Modern during the track-laying
operation is also not in dispute. Maurice Shipman was using this fall protection at the time of the
accident (Tr. 39). Robert Quinn, Traylor’s project manager, testified that the system was
reviewed and accepted by Traylor (Tr. 17, 135). Traylor knew that employees were attaching
their lanyards to the track.
Traylor argues that the jib crane using nylon chokers to hold the track was capable of
supporting 5,000 pounds per employee as required by the standard (Resp’s. Brief, p. 13).
According to Edward Hawkins, Modern’s superintendent, nylon chokers were each capable of
supporting 6,000 pounds. The track weighed 1,500 pounds (Tr. 46). Traylor apparently
concedes that metal clamps were not suitable.
The issue, however, is not the use of chokers or clamps, but whether the track provided
the “anchorage” required by the standard. There is no dispute that prior to bolting the track on

     5

     The standard also provides, as an alternative, the design and installation of a complete personal fall arrest system

which maintains a safety factor of at least “2,” and if under the supervision of a qualified person. This alternative is found
not applicable to this case.
the concrete girder, the track was suspended by the jib crane. The track was not bolted until the
employee walked along the girder positioning the track’s shoes. By attaching the employee’s
safety lanyard to the track before it was bolted, the employee’s fall protection equipment was not
provided a secure point of attachment. Thus, the track did not meet the definition of
“anchorage.” Until bolted, there was no anchor for the employee’s lanyard.
As defined, anchorage is a secure point of attachment for lifelines, lanyards, or
deceleration devices. The unsecured track did not provide the employee a secure attachment
point. It was suspended, subject to tipping or swinging. If not properly balanced, the track could
pull the employee from the girder and possibly fall, as in this accident. See RGM Construction
Co., 17 BNA OSHC 1229, 1232 (No. 91-2107, 1995). The use of the crane to suspend the track
also did not take into consideration its possible malfunction. The standard contemplates that the
anchorage is separate and apart from the object being moved or positioned.
Therefore, the fall protection system used during the track-laying operation was not
shown capable of supporting 5,000 pounds, as evident by the accident. Maurice Shipman, who
weighed less than 5,000 pounds, fell from the bridge while still attached to the track. There is no
evidence that the fall protection system was tested or approved by a qualified engineer. See
Appendix C to the standard.
Accordingly, a violation of §1926.502(d)(15)(i) is established.

                                  Traylor’s Responsibility

   Traylor acknowledges that a general contractor may be held responsible for the safety of

subcontractor employees which it controls by virtue of its supervisory authority over the worksite
(Resp’s. Brief, p. 4). A general contractor who, as in this case, did not have employees exposed
and did not create the violative condition is responsible nevertheless for violations of
subcontractors which it could reasonably be expected to prevent or detect and abate. The duty
imposed on a general contractor is reasonable. There is a presumption that the general contractor
has sufficient control over its subcontractors to require them to comply with safety standards
and abate violations. Gil Haugan d/b/a Haugan Construction Company, 7 BNA OSHC 2004,
2006, 1979 CCH OSHD ¶ 24,105, p. 29,290 (Nos. 76-1512 & 1513, 1979); Flount International
Ltd., 15 BNA OSHC 1987, 1992 CCH OSHD ¶ 29,854 (No. 89-1394, 1992).
 It is undisputed that Traylor directed and supervised the work of subcontractors such as
Modern. Traylor required Modern to initiate fall protection during the track-laying operation. It
specifically reviewed Modern’s fall protection plan and approved its implementation. In fact, the
record indicates that Traylor directed Modern to install the cable along the track for the
employees to tie off their safety lanyards. Traylor recognized the fall hazards associated with the
track-laying operation (Exh. R-6; Tr. 16-18, 35, 44, 133).
The fall protection system was implemented in the spring of 1995 and was used for several
months prior to the accident (Tr. 34, 93, 133). Traylor observed the track-laying operation on
numerous occasions. It was in plain view. Traylor was on the jobsite daily and regularly
inspected the work being done by Modern (Tr. 13-15, 34, 95). It conducted unannounced
inspections of the project (Tr. 128). Traylor never advised Modern that the fall protection system
was inadequate except for a concern about metal clamps (Tr. 35-36, 156-157).
The subcontract with Modern required full compliance with all Federal laws (Exh. R-1;
Tr. 117). According to Edward Zalot, general superintendent, Traylor had the authority to
terminate Modern’s work under the subcontract if it failed to comply with Traylor’s safety
requirements (Tr. 153-54). Zalot coordinated and checked Modern’s work (Tr. 152). In the
spring of 1996, Traylor in fact terminated Modern’s subcontract (Tr. 141).
Therefore, Traylor reasonably could have been expected to have prevented and abated, by
reason of its supervisory capacity, the use of unsecured anchorage to attach fall protection
equipment. The record shows that Traylor asserted a high degree of supervisory capacity over
Modern. Edward Hawkins, Modern’s superintendent, testified that if Modern had not attached
the cable to the track within the time specified by Traylor, Traylor would have removed Modern
from the project (Tr. 35).
Accordingly, Traylor, as general contractor, is a responsible employer under the Act.

                                   Employee Misconduct

   Traylor asserts that if there was a violation, it was due to employee misconduct because

steel clamps were used instead of nylon chokers. An employer may defend on the basis that an
employee's misconduct was unpreventable. To establish the defense, the employer must show
that it has established work rules designed to prevent the violation which were adequately
communicated to employees and effectively enforced. Also, the employer must show steps taken
to discover violations. Nooter Construction Co., 16 BNA OSHC 1572, 1578, 1994 CCH
OSHD ¶ 30,345, p. 41,841 (No. 91-237, 1994).
The employee misconduct defense is not applicable. Modern’s employees were not
employees of Traylor. Also, the violation was the lack of anchorage and not the use of metal
clamps. Nylon chokers and metal clamps were used for the same purpose. Both needed to be
attached to the track in a way as to provide proper balance (Tr. 58-59). They did not secure the
track to the concrete girder. Traylor instructed Modern to have employees tie off to the track
while positioning it on the concrete girder.
There is no showing that attaching a lanyard to the track violated Traylor’s work rule. To
the contrary, the fall protection system used on this project was in compliance with the system
Traylor helped to develop. Even if there were a rule, there is no evidence it was effectively
communicated to employees and enforced.
Accordingly, employee misconduct defense is not applicable in this case.

                                   Serious Classification

   In determining whether the violation of § 1926.502(d)(15)(i) is serious within § 17(k) of

the Act, the Secretary must show that Traylor knew or should have known, with the exercise of
reasonable diligence, of the presence of the violation and there was a substantial probability that
death or serious physical harm could result from the condition.
The record establishes that Traylor knew of the lack of secured anchorage for fall
protection equipment. Traylor reviewed and approved the fall protection system. It observed the
track-setting operation on a number of occasions. The track-laying operation was in plain view.
Traylor, as general contractor, has an obligation “to anticipate hazards to which employees may
be exposed and to take measures to prevent the occurrence.” Frank Swidzinski Co., 9 BNA
OSHC 1230, 1233, 1981 CCH OSHD ¶ 25,129, p. 31032 (No. 76-4627, 1981). The measures
taken by Traylor did not prevent employee exposure to a fall hazard. The measures were
inadequate.
As for the expected injury, the issue is not whether an accident would occur. Rather, the
issue is whether the resulting injury would likely be death or serious harm if an accident should
occur. Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2157, 1989 CCH OSHD ¶
30,148, p. 41,478, n. 5 (No. 91-862, 1993). The failure to provide secure anchorage for fall
protection equipment at heights in excess of 40 feet can reasonably be expected to cause serious
injury or death. The accident in this case resulted in a fatality.
Therefore, a serious violation of §1926.502(d)(15)(i) is established.

                                    Penalty Consideration

    The Commission is the final arbiter of penalties in all contested cases. In determining an

appropriate penalty under §17(j) of the Act, the Commission is required to consider the size of the
employer’s business, history of previous violations, the employer’s good faith, and the gravity of
the violation. Gravity is the principal factor to be considered.

    OSHA proposed a penalty of $5,600. Traylor does not dispute the reasonableness of the

penalty amount. Traylor has 200 employees on-site (Tr. 13). Also, Traylor was inspected by
OSHA during the preceding three years. As for gravity, the employees were working at
heights above 25 feet. One employee for each form-setting machine was responsible for
positioning the track on the concrete girder and was exposed to a fall hazard. To lay a 70-foot
span of track, the process took approximately one hour. The fall protection system was initiated
in the spring of 1995, several months prior to the accident.
Accordingly, a penalty of $5,600 is found reasonable.

                                FINDINGS OF FACT AND
                                CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                           ORDER

    Based upon the foregoing decision, it is ORDERED:
    Serious Citation No. 1, item 1, in violation of § 1926.502(d)(15)(i), is affirmed and a

penalty of $5,600 is assessed.
KEN S. WELSCH
Judge