Fall Protection and Steel Erections: Interstate Erectors Inc. vs. OSHRC

Date: May 01, 1996

The Occupational Safety and Health Administration's (OSHA) construction industry fall protection standards have generated much controversy and litigation, especially in steel erection. The Interstate case involves the interpretation of two requirements with respect to OSHA's policy requiring "100% fall protection."  In addition, the case illustrates how the Court of Appeals for the Tenth Circuit interprets the term "willful" in relation to OSHA citations. 

Interstate Erectors Inc. was the third steel erection company formed by members of the Clayburn family; two others had been dissolved in bankruptcy.  On a job site in February 1993, an OSHA inspector observed Interstate employees working 42 feet above the ground at the perimeter of the framework of a three story building, and other employees working on the interior of the building above open holes, leaving these employees exposed to a drop of a similar height inside the building framework.  OSHA issued a citation alleging willful violations of two sections: (1) 1926.105(a), which requires the use safety nets when work surfaces are 25 feet above the ground and "the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts is impractical;" and (2) 1926.750(b)(1), which requires temporary flooring in tiered buildings except over "access openings."

Interstate challenged the citations on the grounds that neither standard explicitly required the use of "100% fall protection" and that, therefore, OSHA's interpretation was incorrect.  The owner of the company admitted that he knew of OSHA's interpretation; his prior companies had been cited on at least two occasions where failure to provide 100% protection allegedly had resulted in two fatalities.  Subsequent to those citations, the two Clayburns and their foreman were informed by OSHA of the 100% requirement, that the requirement applied to employees moving along beams, and of various methods of acceptable fall protection. 

The employees observed by the inspector in 1993 were moving along beams without being tied off.  The employees stated that the foreman told them to tie off with a lanyard when they reached a stationary point, but that they could move along the beams by walking on the lower flange with the upper flange between their legs.  The company managers testified that they believed this method was an acceptable alternative means of fall protection to those listed in the OSHA standards. 

Interstate further argued that it had complied with the requirements of the standard by requiring the use of fall protection for "a substantial portion of the workday."  In an earlier case, another circuit court interpreted the requirements related to safety nets.  OSHA, it said, must prove that belts or lanyards could not be used for a substantial portion of the workday before it could require the use of safety nets.  However, the court said, the test did not permit the employer to avoid the use of safety devices entirely.  Rather, the test "addresses the limited issue of whether a safety device is practical. . . .  [T]he test does not provide a shield to an employer who fails to use fall protection devices when [they] are practical, even if employees are protected most of the day [emphasis added]." 

The Administrative Law Judge (ALJ) who decided the case below had determined that a "catenary line" was practical because it was installed the day after OSHA's inspection.  Using the catenary line, employees could tie off while moving about on the beams, thus providing 100% fall protection while moving from point to point.  Further, the ALJ concluded that OSHA's interpretation that the cited standards required 100% fall protection was reasonable.   The court agreed, concluding that the failure to provide fall protection "at all times" violated section 1926.105(a) which governed the exposure at the perimeter of the building. 

In regard to the holes in the decking on the floors below the working surface, the court concluded that the ALJ had "substantial evidence" to support his conclusion that the holes "clearly exceeded" the exception for access openings.  The failure to provide other fall protection devices violated section 1926.750(b)(1), which governed the exposure in the interior areas of the building. 

Finally, the court addressed the issue of whether the company's actions were willful.  The company argued that there was no finding of a repeat violation by the ALJ in spite of the history of the company's owner, and that the existing company had received commendations from the state OSHA in recognition of the company's compliance record, including fall protection requirements.  This, said the court, was immaterial. 

What the company failed to appreciate was that it had acted in disregard of OSHA's clear instructions as to the requirements of the standard.  The company's management was "amply aware of OSHA's interpretation. . . ."  It elected to adopt its own in the face of those instructions.  On this basis, it could not argue that it acted in good faith reliance on its own reasonable interpretation, the court said, upholding the ALJ's finding that the company's "blatant and continual disregard of OSHA's requirements" were willful.  The penalty assessed by the ALJ of $63,000 was affirmed.

This article appeared in Compliance Magazine (May 1996) and it is reprinted with permission of Compliance Magazine. Copyright © 1996 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.