Croman Corporation, and its successors

Plain-English summary

Croman used wire rope chokers to lift logs by helicopter at an Idaho timber sale. OSHA found slings in service with more than five broken wires in a single strand near the nubbin, where field use concentrated stress. Judge Benjamin R. Loye held that the cited removal rule presumed a hazard when its specific terms were violated and that Croman's laboratory pull tests did not duplicate the damaged location seen in the field. He rejected Croman's notice and de minimis arguments, affirmed the serious violation, and assessed $1,875. A second citation item was affirmed under the parties' partial settlement agreement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.184(f)(5)(i).
• Outcome: Item 1 affirmed as serious with a $1,875 penalty; item 2 affirmed under a partial settlement.
• Key point: Wire rope slings meeting the standard's broken-wire removal threshold must be taken out of service, even when controlled testing suggests little loss of overall breaking strength.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,

                          v.                               OSHRC DOCKET NO. 99-0239

CROMAN CORPORATION, and its successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Jeannie Gorman, Esq., U.S. Department of Labor, Office of the Solicitor, Seattle, Washington

      For the Respondent:
               George W. Goodman, Esq., Cummins, Goodman, Fish & Platt, PC , McMinnville, Oregon

Before: Administrative Law Judge: Benjamin R. Loye

                                     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, Croman Corporation, and its successors (Croman), at all times relevant to
this action maintained a place of business at Hoodoo Timber Sale, Idaho City, Idaho, where it
was engaged in logging. Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On November 19, 1998 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Croman’s Hoodoo work site. As a result of that inspection, Croman
was issued citations alleging violations of the Act together with proposed penalties. By filing a
timely notice of contest Croman brought this proceeding before the Occupational Safety and
Health Review Commission (Commission).
On June 29, 1999, a hearing was held in Coeur D’Alene, Idaho. At hearing, the parties
stated that they had settled Citation 1, item 2. Respondent withdraws its notice of contest to that
citation in a partial settlement agreement which is adopted and made part of this order. Citation
1, item 1, alleging violation of §1910.184(f)(5)(i) remains at issue. The parties orally briefed the
remaining issue on the record, and this matter is ready for disposition.
Alleged Violation
Citation 1, item 1 alleges:

29 CFR 1910.184(f)(5)(i): Wire rope sling(s) that had ten or more randomly distributed broken
wires in one rope lay, or five or more broken wires in one strand in one rope lay, were not
immediately removed from service.

    (a)    Hoodoo Timber Sale, Idaho City, ID: Wire rope slings used to transport logs
           beneath helicopters were not taken out of service before a full strand consisting of
           26 wires were broken.

    The cited standard provides:

    Wire rope slings shall be immediately removed from service if any of the following
    conditions are present: (i) Ten randomly distributed broken wires in one rope lay, or five
    broken wires in one strand in one rope lay.. . .

Facts
Virgle Howell, the OSHA Compliance Officer (CO), testified that on November 19,
1998, he and a second CO, March Hatch, conducted an inspection of Croman’s work site after
OSHA’s receipt of a referral for the site (Tr. 26, C-2). Howell testified that once on the site, he
noted violations of the cited standard, which he subsequently videotaped (Tr. 37; Exh. C-3). Mr.
Howell testified that as he toured Croman’s work site with Mike Rickstead, Croman’s project
manager, he observed the logging operation, which consisted of helicopters dropping bundles of
wire rope slings or chokers to the choker setter (Tr. 40, 47-48). The choker setter then attaches
the choker to the tree and signals the next helicopter; he attaches the choker to the long line from
the helicopter, and the helicopter takes the tree from the woods to the landing site (Tr. 47-49;
Exh. C-3).
Howell testified that he noted a wire rope sling which had been placed around a downed
tree in preparation to being hoisted out of the cutting area (Tr. 85, 87-89). Howell believed the
rope was defective, and asked Rickstead to remove the wire sling from the tree for his closer
inspection (Tr. 85, 87). Howell testified that, inches from the bell, or nubbin, described as the
male end of the wire rope (Tr. 45, 51; Exh. C-3), the plastic coating around the wire rope had
worn through, and that he could count in excess of 10 broken wires within one lay1 of a single
strand of a six strand wire rope (Tr. 42, 84). Howell noted that the strand next to that one was in
about the same condition (Tr. 43). Howell testified that the bell fits into a female fixture further
down the sling, which slides until it forms a noose, or choke on the tree (Tr. 45-46). Howell
testified that the pressure from the female portion of the choke puts constant flex on the nubbin,
causing fatigue at that point on the wire rope (Tr. 98-99). Howell stated that the fatigued rope
was more likely to fail when stressed or flexed (Tr. 99). As Rickstead bent the wire sling, he
noted that he was causing even more of the strands to break (Tr. 44).
Howell testified that Rickstead told him that it was the company’s policy to take a sling
out of service only when an entire strand of 26 wires were broken within one lay (Tr. 42, 68).
Howell interviewed a choker setter, Sonny Rickstead, who believed that a sling should be
removed from service if five wires within a single strand were broken (Tr. 68). Howell and
Sonny Rickstead examined other slings which had been dropped for use, and found that a
number had more than five broken wires within a single strand; those slings were taken out of
service at that time (Tr. 53-54, 67, 102; Exh. C-5).
Larry Dietz, a 16 year employee of West Coast Wire Rope, testified that he had been
involved in pull testing of wire ropes since 1983 (Tr. 124, 167). Dietz admitted, however, that he
is not trained as an engineer (Tr. 186).
Dietz testified that, at Croman’s direction, he conducted pull tests of 1/2" chokers similar
to the type cited in this matter (Tr. 172, 208). Dietz found that an undamaged choker broke at
25,752 pounds pressure, at the point where the female portion of the choke caused the sling to
bend (Tr. 172-73). Dietz also tested the breaking point of chokers with 5, 10 and 20 broken
wires in one strand; Dietz stated that he broke the wires on the sling three or four feet from the
nubbins (Tr. 177, 184-85). In each case the sling broke at the point where the female end of the
choke met the cable (Tr. 177, 184-85). In no case was the strength of the sling substantially
reduced, all breaking around 25,000 pounds pressure (Tr. 184-85).

    1
        The wire rope consisted of 6 strands of wire bundles, 26 wires per bundle, wrapped around a wire rope

core (Tr. 42). Each 360E wrap of a strand is termed a “lay.” (Tr. 42).
 Despite his testimony regarding his test results, Dietz agreed with CO Howell that the
slings in use by Croman frayed near the bell, or nubbin, because that was where the greatest
stress is put upon the wire (Tr. 198).
Discussion
The Secretary’s prima facie case clearly establishes that wire slings with more than five
broken wires in one strand were not removed from service. Croman did not introduce any
witnesses, or adduce any evidence contesting the Secretary’s evidence. The literal terms of the
standard were clearly violated.
Croman maintains that: 1) The language of the citation itself is inadequate, in that it failed
to state with specificity the basis for the citation, i.e., subsection (a) states only Croman’s stated
policy of not removing from service wire slings which had less than a full strand of 26 wires
which were broken; 2) The citation should be vacated, in that the cited condition did not
sufficiently weaken the cited wire slings so as to pose a hazard to employees; 3) If there was a
technical violation of the cited standard, it should be classified as de minimis.
Specificity. Pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, made
applicable to Commission proceedings by 29 CFR §2200.2(b), post-trial amendment of the
citation is proper when issues not raised by the citation are tried by the express or implied
consent of the parties. Peavey Co.,16 BNA OCHS 2022, 1994 CCH OSHD ¶30,572 (No. 89-
2836, 1994). Consent may be implied from the parties introduction of evidence relevant only to
the specific issue in question. McWilliams Forge Company, Inc., 11 BNA OSHC 2128, 1984
CCH OSHD ¶26,979 (No. 80-5868, 1984).
In this case, it is clear that Croman’s conversations with CO Howell during the
inspection, and the plain language of the cited standard itself put Croman on notice of the charges
against which it would be called to defend. That Croman had actual knowledge of the issues is
demonstrated by its introduction of pull testing relevant only to the strength of a wire sling with
less than 26 broken wires per strand.
The citation, therefore, is amended, on this judge’s own motion, to conform to the
evidence.
Proof of a Hazard. Most occupational safety and health standards include requirements
or prohibitions that by their terms must be observed whenever specified conditions, practices or
procedures are encountered.2 These standards are predicated on the existence of a hazard when

    2
        Certain standards promulgated by the Secretary contain requirements or prohibitions that by their terms
                                                                                                 (continued...)

their terms are not met. Therefore, the Secretary is not required to prove that noncompliance
with these standards creates a hazard in order to establish a violation. Austin Bridge Company, 7
BNA OSHC 1761 (76-93, 1979); i.e., when a standard prescribes specific means of enhancing
employee safety, a hazard is presumed to exist if the terms of the standard are violated. Clifford
B. Hannay & Son, Inc., 6 BNA OSHC 1335 (No. 15983, 1978).
It is well established that the employer may not use the adjudicatory process to challenge
the wisdom of a required safety measure. See, Austin Engg. Co., 12 BNA OSHC 1187, 1188,
1984-85 CCH OSHD ¶27,189, p. 35,099 (No. 81-168, 1985). The employer may only challenge
the standard through the rulemaking process, or through application for a variance. Carabetta
Enterprises, Inc.15 BNA OSHC 1429, 1991-93 CCH OSHD ¶29,543 (No. 89-2007, 1992).
Croman’s pull testing evidence, therefore, is relevant only to the gravity of the cited
violation.
De minimis. A violation is de minimus when there is technical noncompliance with a
standard, but the departure bears such a negligible relationship to employee safety or health as to
render inappropriate the assessment of a penalty or the entry of an abatement order. Cleveland
Consolidated, Inc., 13 BNA OSHC 1114, 1987-90 CCH OSHD ¶27,829 (No. 84-696, 1987).
This judge cannot find the cited violation was de minimis. Croman’s pull testing
evidence failed to duplicate the cited conditions as they were observed by CO Howell in the
field. In Dietz’ controlled tests the wire strands were broken several feet from the male bell
fixture, or nubbin. In the field, all the wear CO Howell observed was located at the nubbin itself.
Even Croman’s expert admitted that the only explaination for the broken wires found by Howell
was that all the stress on the wire slings must, in field use, be concentrated at the point where the
fatigue was found. Croman’s controlled tests, however, clearly stressed the slings at a different
point, i.e., where the sling met the female half of the choke. Because the controlled tests failed to
duplicate the conditions in the field, they failed to establish that the damaged wire slings cited
were sound, or that Croman’s violation of the cited standard bore no relationship to employee
safety.

      2
       (...continued)

need only be observed when employees are exposed to a hazard described generally in the standard,
§1910.184(f)(5)(i) does not contain any such restrictive terms.
Penalty
No evidence was adduced showing Croman’s size; CO Howell stated that he had not
inspected Croman before, however, indicating that they had no history of prior violations.
Howell stated that Croman was given full credit for good faith.
Howell testified that a tree, falling from a helicopter sling onto ground personnel would
cause crushing injuries to employees in the zone of danger, and that employees on the ground
were exposed to the hazard (Tr. 67). The violation was, therefore, correctly classified as
“serious.” Karen Zimmer, Croman’s human resource director, testified in mitigation of the
gravity of the violation, stating that she was unaware of any injuries involving wire rope failure
in a helicopter logging configuration (Tr. 121).
The record establishes that the Secretary took into account the statutory criteria in
computing the proposed penalty of $1,875.00. Croman does not dispute the amount of the
proposed penalty, and it will be assessed.
ORDER

1. Citation 1, item 1, alleging violation of §1910.184(f)(5)(i) is AFFIRMED, and the
   proposed penalty of $1,875.00 is ASSESSED.
2. Citation 1, item 2 is AFFIRMED as set forth in the parties’ partial settlement agreement,
   which is adopted and made part of this order.

                                                 Benjamin R. Loye
                                                 Judge, OSHRC
   

Dated:

Rochelle Kleinberg
Associate Regional Solicitor
Jeannie Gorman, Attorney
Office of the Solicitor
U.S. Department of Labor
1111 Third Avenue, Suite 945
Seattle, Washington 98101
(206)553-0940
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ALEXIS HERMAN, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,
(Region 10)
Complainant, OSHRC DOCKET NO. 99-0239

  v.                                                    OSHA Inspection No.
                                                        300211687

CROMAN CORPORATION and its SETTLEMENT AGREEMENT
successors,
Respondent.
COME NOW the Complainant and the Respondent, by and through their undersigned
representatives of record, and in settlement of this proceeding arising under the Occupational Safety
and Health Act of 1970 (29 U.S.C. §§ 651 et seq.) hereinafter referred to as “the Act,” do move,
represent and agree as follows:
1. Respondent moves to withdraw its Notice of Contest to Item 2 of Citation and
Notification of Penalty Number One, dated January 15, 1999.
2. Respondent represents that the alleged violation cited in the aforesaid Citation and
Notification of Penalty and referenced in paragraph No.1 above, has been corrected and abated.
3. Respondent agrees that it will promptly post for the attention of the affected workers
a copy of this Settlement Agreement at the same location that the Citation and Notification of
Penalty in this matter was posted.
4. The parties further agree that the foregoing Settlement Agreement addresses and
resolves all the issues presently in controversy between the parties regarding Item 2 of the Citation
and Notification of Penalty Number One, dated January 15, 1999. An appropriate order reflecting
same may be entered.

SETTLEMENT AGREEMENT - Page 1
A judicial decision regarding Item 1 of Citation and Notification of Penalty Number One, dated
January 15, 1999 is still pending.
5. Each party agrees to bear its own costs.

CROMAN CORPORATION Henry L. Solano
Solicitor of Labor
/S/
Karen Zimmer
DATED: 8/5/99 Daniel Teehan
Associate Regional Solicitor

/S/ Rochelle Kleinberg
George Goodman Associate Regional Solicitor
Attorney for Respondent
Jeannie Gorman
DATED: 8/3/99 Attorney

                                                      By: /S/
                                                         Jeannie Gorman

SETTLEMENT AGREEMENT - Page 2
 CERTIFICATE OF POSTING

I, /S/ Karen Zimmer, certify that on Aug. 6, 1999, a copy of the attached Settlement Agreement was
posted for the attention of the affected employees at the following locations: Logging Division -
White City, Oregon & Logging crew in Idaho

DATED: August 5 , 1999.

                                                CROMAN CORPORATION

                                                By /S/ Karen Zimmer
                                                Title: Human Res. Dir.

OSHA Inspection No. 300211687

CERTIFICATE OF POSTING - Page 1
 CERTIFICATION OF SERVICE

     Jeannie Gorman, Attorney for the Secretary of Labor, certifies that on August 6, 1999, she

caused to be deposited for delivery via facsimile and via overnight mail, in a sealed envelope, the
original of the parties’ Settlement Agreement, which includes the Respondent’s signed Certificate
of Posting, and the original of this Certificate of Service to the following at each address noted:

Judge Benjamin Loye
Occupational Safety and Health Review Commission
1244 N. Speer Blvd., Room 250
Denver, CO 80204-3582

     Jeannie Gorman, Attorney for the Secretary of Labor, certifies that on August 6, 1999, she

caused to be deposited for delivery via regular mail, in a sealed envelope, a copy of the parties’
Settlement Agreement and a copy of this Certificate of Service to the following at each address
noted:

George W. Goodman
Cummins Goodman Fish & Platt
434 N. Evans St.
P.O. Box 17
McMinnville, OR 97128-0017

                                                  /S/
                                                  Jeannie Gorman

Docket No. 99-0239

CERTIFICATE OF SERVICE - Page 1