TraCorp Construction and its successors

Plain-English summary

TraCorp's crew was erecting a building when a hoist cable broke and a falling steel truss killed an employee working beneath it. Judge Stanley M. Schwartz found that TraCorp was the employer because it assigned and paid the crew, supplied most tools, and controlled the work. The wire rope showed excessive wear and corrosion, was wrapped around sharp metal without padding, and had not received the required inspection. TraCorp also failed to keep the employee clear of the suspended load, and its work-rule defense failed because it did not prove reasonable monitoring. Other-than-serious violations were affirmed for reporting the fatality late and failing to arrange prompt medical attention before work began. All items were affirmed, with $2,600 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1904.8, 1926.50(b), 1926.251(c)(4)(iv), 1926.251(c)(9), 1926.550(a)(19), and 1926.550(b)(2).
• Outcome: All serious and other-than-serious items affirmed, with $2,600 in total penalties.
• Key point: The contractor controlling the crew and equipment remained responsible for sling condition, crane inspection, and keeping employees away from suspended loads.

Full text (OSHRC public release)

                           United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 North Speed Boulevard, Room 250
Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                            v.                             OSHRC DOCKET NO. 98-0775

TRACORP CONSTRUCTION and its successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Connie M. Ackermann, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

      For the Respondent:
               Richard Irby, TraCorp Construction, Como, Texas

Before: Administrative Law Judge: Stanley M. Schwartz

                                          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, TraCorp Construction (TraCorp), is an employer engaged in construction, a
business affecting commerce (Tr. 63), and is subject to the requirements of the Act. On December 30,
1997, The Occupational Safety and Health Administration (OSHA) received a report of a fatality which
occurred on December 1, 1997, at a work site at County Road 1166, west of Highway 19, near Sulphur
Springs (Tr. 54). OSHA instigated an accident investigation, and found TraCorp working at the site.
As a result of the OSHA investigation, TraCorp was issued citations alleging violations of the Act
together with proposed penalties. By filing a timely notice of contest TraCorp brought this proceeding
before the Occupational Safety and Health Review Commission (Commission).
On September 14, 1998, a hearing was held in Dallas, Texas. The time allotted for submission
of briefs has expired, and this matter is ready for disposition.
Facts
James Wright, an investigator with the Hopkins County Sheriff’s Office, testified that he arrived
at the Sulphur Springs work site on the morning of December 1, 1997 (Tr. 12-13). Wright was told
that the workers were hoisting a truss when the hoist cable broke (Tr. 15, 18-19). The truss fell,
crushing Jesus Medrano under it (Tr. 13, 16; Exh. C-6).
Wright testified that at the time of his investigation, Medrano was wearing a welding helmet; a
welding cable led up to Medrano, and the welding stringer was embedded into his head (Tr. 19).
Wright deduced that Medrano was working under the truss, welding a rod onto an upright when the
cable broke (Tr. 19).
Wright testified that the property where the accident occurred was owned by Dale Weatherford
(Tr. 23). Weatherford was having a large free-span building constructed on the property (Tr. 13-14).
Wright knew that Richard Irby Construction builds buildings and so assumed Irby was in charge of the
project (Tr. 15-16, 23-24). Wright testified that Irby told him that Jesus Medrano was working for him
(Tr. 22).
Dale Weatherford testified that he had no formal contract with Richard Irby, but that Irby’s crew
was putting up the free-span building, which was to be used as an arena (Tr. 26-27). Weatherford
intended to pay Irby for his crew’s labor after the completion of the project (Tr. 27-28). At times he
paid Juan Tinejaro, one of Irby’s employees, directly (Tr. 27), when Tinejaro did jobs for Weatherford
on his own rather than as part of Irby’s crew (Tr. 27-28).
Irby was on the work site on the day of the accident (Tr. 30). Juan Tinejaro believed that he and
the deceased, Jesus Medrano, were working for Richard Irby (Tr. 35-36). Tinejaro testified that it was
Irby who first instructed him to go to the Sulphur Springs work site to build the arena, and that Irby
was in charge of the work site (Tr. 37, 40). Richard Irby paid Tinejaro’s and Medrano’s wages; pay
stubs were introduced into evidence (Tr. 36, 41-42; Exh. C-14 through C-21). The equipment in use,
with the exception of the crane and one welder of Weatherford’s, belonged to Irby (Tr. 30, 37). Larry
Bozeman, who owned the crane, told Weatherford and Irby that he had no insurance, and that Irby
would have to take responsibility for any accidents that might occur involving the crane (Tr. 71-72, 98).
Guadelupe Tinejaro also testified that Richard Irby was his employer (Tr. 44). Irby sent him to
work on the arena, supplied his tools, and paid his wages (Tr. 45).
Irby admitted that he was in the business, and had bid on and built barns before, and that he had
arranged for his crew to work on Weatherford’s barn (Tr. 114, 119, 121).
 Debra McDavid, an OSHA compliance officer (CO), testified that, based on her interviews with
the work crew and with Richard Irby, she determined that Irby was the only employer on the work site
(Tr. 64-65).
Employer/Employee Relationship
Richard Irby, TraCorp’s owner, maintains that he was not the employer of the workers at the
Sulphur Springs site. Irby claims that he loaned his employees and equipment to Dale Weatherford,
who was a friend (Tr. 110-13).
The Commission has held that:
In determining whether a hired party is an employee under the general common law of
agency, we consider the hiring party’s right to control the manner and means by which
the product is accomplished. Among the other factors relevant to this inquiry are the
skill required; the source of the instrumentalities and tools; the location of the work; the
duration of the relationship between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the hired party’s discretion
over when and how long to work; the method of payment; business of the hiring party;
whether the hiring party is in business; the provision of employee benefits; and the tax
treatment of the hired party.
Vergona Crane Co., 15 BNA OSHC 1782, 1784, 1991-93 CCH OSHD ¶29,775, p. 40,496-97
(No. 88-1745, 1992).
In ascertaining an employee’s employer, the Commission has primarily relied upon its determina-
tion of who has control over the work environment such that abatement of hazards can be obtained.
See, Abbonizio Contractors Inc. 16 BNA OSHC 2125, 1994 CCH OSHD ¶30,615 (No. 91-2929,
1994);
In this case, it is clear that Richard Irby exercised the only control over the work site, and that
he was the workers’employer for purposes of coverage under the Act. Irby was in the business of
building barns, supplied most of the equipment and tools on the work site, and directed the work on the
barn. The crew working on the barn worked for Irby before, and believed they were working for Irby on
this project. Irby had assigned them to this project, and it was he who paid their wages. Only Irby was
in a position to insure the abatement of hazards on the work site.
I find that TraCorp was the employer of the workers at the job site at issue on December 1,
1997.
Alleged Violations
Serious citation 1, item 1a, as amended, alleges:
29 CFR 1926.251(c)(4)(iv): Wire rope(s) were used in which the rope(s) showed signs of defect(s).
 a. On or about December 1, 1997, wire rope used to lift the steel truss had permanent kinks
throughout the rope. The kinks were deformed by the overloading and excessive use of the
wire’s lifting capacity.

    The cited standard provides:

    Wire rope shall not be used if, in any length of 8 diameters, the total number of visible broken
    wires exceeds 10% of the total number of wires, or if the rope shows other signs of excessive
    wear, corrosion, or defect.

Facts
CO McDavid testified that, based on the photographic evidence, she determined that the wire
rope in use prior to the December 1, 1997 accident was defective (Tr. 69). McDavid pointed to kinks
in the wire rope, which she stated showed that the rope had been used over its lifting capacity many
times (Tr. 66-68; Exh. C-1 through C-3). McDavid also pointed to rust and fraying on the wire in the
area of the break, indicating excessive wear (Tr. 69, 107; Exh. C-4).
James Wright, who examined the cable after the accident, found it had been frayed for some
time prior to the accident (Tr. 20). Wright stated that approximately 25% of the cable had been frayed
long enough to rust; 75% of the cable was shiny and appeared recently broken (Tr. 20).
McDavid testified that Richard Irby helped attach the cables to the truss, and so should have
been aware of the condition of the cables.
Discussion
The record shows that the cited standard was violated, in that wire ropes showing signs of
excessive wear and corrosion were used to hoist a steel truss on December 1, 1997. Because the
defects were obvious and the employer had a duty to ensure that the wire ropes had been inspected, see
§1926.550(b)(2), cited at item 1(c), TraCorp should have been aware of the violative conditions.
The cited violation has been established.

                             Alleged Violation of §1926.251(c)(9)
    Serious citation 1, item 1b, as amended, alleges:

29 CFR 1926.251(c)(9): Slings shall be padded or protected from the sharp edges of their loads.
b. On or about December 1, 1997, the wire rope that was attached to the load was not padded
or protected by any means as to prevent damage from the sharp edges of metal located on top of
the truss.
Facts
Guadelupe Tinejaro testified that he and Irby wrapped the wire cables around the truss to be
hoisted (Tr. 39). Tinejaro and Irby both admitted that they did not put any padding between the wire
cable and the truss (Tr. 40, 119-20).
CO McDavid testified that Irby admitted that the wire slings were not padded (Tr. 74).
McDavid stated that without a pad the tensile strength of the cable is decreased, and the probability of a
break is increased (Tr. 73-74).
Discussion
The cited violation is admitted and will be affirmed.
Alleged Violation of §1926.550(b)(2)
Serious citation 1, item 1c, as amended, alleges:
29 CFR 1926.550(b)(2): Section 5-2.4.1 American National Standards Institute B30.5-1968, Safety
Code for Crawler, Locomotive and Truck Cranes adopted by 29 CFR 1926.550(b)(2): A thorough
inspection of + all ropes in use was not made at least once a month (sic):

    c. On or about December 1, 1997, wire rope used to lift the steel truss had not been visually
    inspected at least once every working day.

    The cited standard provides that:

    All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for . . .
    inspection . . . as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and
    Truck Cranes.. . . [T]he employer shall prepare a certification record which includes the date the
    crane items were inspected; the signature of the person who inspected the crane items; and a
    serial number, or other identifier, for the crane inspected.

Facts
ANSI B.30.5-1968 §5-2.4.1 requires that all running ropes in continuous service should be
visually inspected once every working day. It also requires that a thorough inspection of all ropes in use
be made at least once a month (Exh. C-22).
CO McDavid testified Larry Bozeman had no inspection records for the crane and that he told
her that he had not changed, or checked the cables in ten years (Tr. 69, 97). As noted above, Bozeman
told Irby that Irby would have to take responsibility for any accidents that might occur (Tr. 71-72, 98).
CO McDavid testified that Irby and his employees told her that the wire rope used to lift the
steel truss had not been visually inspected (Tr. 76). Irby stated that he was not a crane inspector; he
looked at the cable after it broke, and it looked good to him (Tr. 94). Irby believed that the line was
capable of handling the attached load, and would not have used the line if he knew it was defective (Tr.
115-16).
Discussion
TraCorp’s employees were exposed to the hazard posed by the uninspected crane. Yet, the
record establishes that TraCorp failed to inspect the wire rope prior to its use, or to ask for records
certifying that required routine inspections were made by the crane owner, despite the crane owner’s
disavowal of any responsibility for accidents which might be caused by the crane.
TraCorp failed to ascertain that the crane met the applicable inspection requirements. The
citation will be affirmed.
Penalty
A combined penalty of $2,000.00 was proposed for the violations at items 1(a), (b) and (c).
The gravity of the violations is high, in that failure to properly inspect, pad, and/or remove a
damaged sling from use may result in the sling breaking and the load falling, injuring employees nearby,
perhaps fatally (Tr. 72, 74). Nonetheless, I find that the minimal penalty is appropriate given TraCorp’s
size. A combined penalty of $2,000.00 will be assessed.

                             Alleged Violation of §1926.550(a)(19)
    Serious citation 1, item 2, as amended, alleges:

29 CFR 1926.550(a)(19): All employees shall be kept clear of loads about to be lifted and of suspended
loads.

    a. On or about December 1, 1997, no means by the employer were taken to enforce and ensure
    that employees were not allowed to work, walk, stand, etc. under loads to be lifted or suspended
    loads.

Facts
The existence of the violative condition is undisputed in that the deceased, Jesus Medrano, was
not kept clear of the suspended truss, despite the presence of Richard Irby, who testified that the reason
he was on the job site that day was to watch his employees and communicate between them and the
crane operator, and who was holding the load’s tag line at the time of the accident (Tr. 112).
Irby testified that he could not see Medrano from his position (Tr. 96). Guadelupe Tinejaro
testified that he had been told not to work under the crane’s load (Tr. 50-51). CO McDavid testified
that Juan Tinejaro told her that he had also been instructed not to walk under loads by Richard Irby (Tr.
95).
Discussion/Penalty
The underlying violation is established. The testimony of Guadelupe and Juan Tinejaro fails to
establish the affirmative defense of employee misconduct because TraCorp failed to introduce any
evidence showing that it had taken reasonable steps to discover violations of the rule prohibiting
working under suspended loads. New York State Electric & Gas Corporation, 17 BNA OSHC 1129,
1995 CCH OSHD ¶ (91-2897, 1995).
Although TraCorp technically failed to prove the employee misconduct defense, the record
establishes that it did make some attempt to protect its employees, instructing them not to work under
suspended loads. Any precautions taken to prevent employee injury should be taken into account in
mitigation of the gravity based penalty. Kus-Tum Builders, Inc. 10 BNA OSHC 1049, 1981 CCH
OSHD ¶25,738 (No. 76-2644, 1981).
Taking into account the relevant factors, I find that a penalty of $500.00 is appropriate and will
be assessed.
Alleged Violation of §1904.8
Other than serious citation 2, item 1, as amended, alleges:
29 CFR 1904.8: An oral or written report of an employment accident resulting in a fatality was not
made within 8 hours after the occurrence to the nearest Area Office of the Occupational Safety and
Health Administration:

    a. The employer failed to report the accident relating to the death of an employee, Juan
    Medrano. The accident occurred on 12/01/97 on County Rd. 1166, West of Hwy 19 in Como,
    Tx.

Facts

    CO McDavid testified that OSHA learned of the fatality at TraCorp’s work site for the first time

on December 30, 1997, from a third party (Tr. 86). McDavid testified that the late report hindered
OSHA’s investigation of the accident. By the time McDavid inspected the site, the wire rope had
disappeared; McDavid had to rely mainly on the Hopkins County Sheriff’s report and photographs (Tr.
87).
Discussion/Penalty
The violation is undisputed. The record does not support the $2,000.00 penalty proposed for
this item, however. The Secretary seeks to assess the same amount for this citation, a reporting
violation cited as “other than serious,” as she has assessed for the three “serious” violations cited in
citation 1, items 1a, 1b and 1c. Because TraCorp’s failure to report the accident was likely to result in
harm to any employee, I find that a penalty of $100.00 is appropriate.
Alleged Violation of 1926.50(b)
Other than serious citation 2, item 2, as amended, alleges:
29 CFR 1926.50(b): Provisions were not made prior to commencement of the project for prompt
medical attention in case of serious injury:
 a. On or about December 1, 1997, the employer failed to make arrangements prior to
commencement of the project, located on County Rd. 1166, West of Hwy. 19 in Como, TX., for
prompt medical attention.

Facts
McDavid testified that Richard Irby admitted that he had not made any arrangements for his
crew to receive prompt medical attention prior to the accident (Tr. 89).
Discussion
This violation is undisputed, and will be affirmed, without penalty, as proposed.

                                             ORDER

1. Serious citation 1, items 1a, 1b and 1c, alleging violation of §§1926.251(c)(4)(iv), (c)(9), and
   1926.550(b)(2) are AFFIRMED, and a penalty of $2,000.00 is ASSESSED.

2. Serious citation 1, item 2, alleging violation of §1926.550(a)(19) is AFFIRMED, and a penalty
   of $500.00 is ASSESSED.

3. Other than serious citation 2, item 1, alleging violation of §1904.8 is AFFIRMED, and a penalty
   of $100.00 is ASSESSED.

4. Other than serious citation 2, item 2, alleging violation of §1926(b)(b) is AFFIRMED without
   penalty.

                                                  Stanley M. Schwartz
                                                  Judge, OSHRC
   

Dated: