This month’s case attests to the willingness of construction workers to work under dangerous conditions, and clarifies a couple of doctrines you should be aware of, with respect to the OSHA Act’s construction standards.
In Secretary v. Keenan, Hopkins, Schmidt and Stowell Contractors, the employer was a subcontractor on new construction at a Lockheed Martin campus in Colorado. Its employees were using an aerial lift to perform framing work and drywall/densglass installation 60 to 80 feet above grade. The lift had two tubular metal guardrails, which encompassed the floor of the basket.
As of the date of OSHA’s inspection, two employees, Ruiz and Rojas, had been working for eight days installing drywall to the upper levels of the exterior of the building. They were supervised by two foremen.
The work being done was unusual, in that the building’s structural I-beams were exposed, and the drywall/densglass had to be installed by reaching through, or around, the exterior beams and duct work. Because the distance from the lift basket was sometimes as much as three to four feet, the installers often had difficulty reaching where they were to install the drywall while standing inside the basket.
The two men, on instructions of their supervisors, installed self-retracting lanyards to the steel beams above their basket, and moved freely between the basket and the I-beams, in order to have the best vantage point to carry out the installation. This involved sometimes standing on an I-beam, and, at other times, standing with both feet, or one foot, in the bucket, or one foot, or both, on the basket railing.
Each sheet being installed weighed about 40 pounds, and required between 20 and 25 screws to affix it. Each sheet took about ten to fifteen minutes to install. Rojas stated that he and Ruiz each had to climb out of the basket about three times per hour, and performed tasks taking about five minutes before returning. As they climbed up on the guard rails, the basket often swayed or moved, which Rojas likened to the sensation of being on a boat. Both workers said their supervisors approved their being on the basket rails, as long as they were tied off. “The only thing [the employer] wanted there,” Ruiz testified, “was the job done.”
Fortunately, Ruiz and Rojas did not suffer a fall. Their employer was cited, however, for a “Serious” OSHA violation, when the compliance officer saw how they were working to install the drywall.
The standard cited prohibits sitting or climbing on the “edge” of the boom lift’s basket, and requires that employees always stand firmly on the floor of the basket. The employer timely contested the citation, and the matter went to trial before an Administrative Law Judge.
As always, to establish the violation the Secretary had to prove, by a preponderance of the evidence, that (1) the cited standard applied to the facts; (2) the employer failed to comply with the standard; (3) employees were exposed, or had access to, the hazard covered by the standard; and (4) that the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition.
Applicability of the standard was easily found, as the parties agreed that Ruiz and Rojas had been engaged in “construction work,” and that the lift was an “aerial lift” for purposes of the standard cited.
The ALJ rejected the employer’s argument that Subpart M, the Act’s general fall protection standards, should be applied, instead of Subpart L (which embraces the standard cited). Subpart M, the ALJ found, might apply to those times while the men were working while standing on an I-beam, but at other times, while they worked from the basket (even while inappropriately standing on the guardrails) the Subpart L aerial lift safety regulations applied.
In so doing, the ALJ applied a doctrine you should be aware of concerning OSHA standards. Namely, that if there is doubt concerning the applicability of a specific standard, versus a more general one, the OSH Review Commission has consistently held that the specific standard prevails.
The ALJ cited precedent that consistently found that working from the “edge” of an aerial lift includes the guardrails encompassing the lift basket. The ALJ also cited an OSHA Letter of Interpretation that specifically addressed whether an employee is allowed to stand on the guardrails of an aerial lift basket to work, if properly tied off. “The answer for aerial lifts,” this Letter found, “is no.” Thus, the cited regulation applied to the work being performed, and its terms were found to have been violated.
Employee exposure was readily found as, over a period of days, Ruiz and Rojas had “repeatedly and consistently climbed on, stood on, and worked from the guardrails” of the lift basket, to perform their installation work.
As for employer knowledge, that element does not turn on whether the employer understood the condition to be a violation of the OSH Act, but whether it was aware of the condition constituting the violation. The knowledge of a corporate employer can be established by showing that one or more supervisory employees knew, or should have known, of the noncomplying conduct of a subordinate.
In the case under discussion, the violative condition was “open, obvious, and in plain view,” and recurred time after time, over a period of days. The employer’s supervisors, although not proved to have specifically observed Ruiz and Rojas standing or climbing on the lift rails, either knew or should have known of the persistent violative conduct.
The ALJ affirmed the Compliance Officer’s finding that the violation was “Serious,” notwithstanding some controversy as to how far the two workers would have fallen, had they slipped before their lanyards arrested their fall. The ALJ found that a slip, fall or swing of even 2-3 feet by either employee could have resulted in him striking the steel I-beam, the exterior of the basket, or falling in between the basket and the I-beams and suffering head injuries, broken limbs, or other serious harm.
Turning aside a perfunctory (and probably ill-advised) attempt by the employee to establish the seldom successful affirmative defense of “unpreventable employee misconduct,” the ALJ affirmed the citation, and the penalty proposed.
Even if tied off, therefore, employees need to be trained not to work while standing on the guardrails of a bucket lift, or to step on the guardrails to move between the bucket and a working surface nearby.