An Ohio bridge painting company that challenged access to federal safety inspectors on a follow-up visit to a job site has lost its appeal of the case.
The Occupational Safety and Health Review Commission has upheld a decision that fines M & J Painting Co. Inc. $19,250 for failure to abate a safety violation.
The commission found, among other things, that the company was using hand-tightened nylon rope as lifelines for painters on a bridge project 150 feet above a river.
The 37-page decision (OSHRC Docket No. 11-2694), signed Sept. 28, ends a case that began in August 2010, when the Occupational Safety and Health Administration inspected M&J’s work site on the Charles M. Braga Jr. Bridge in Fall River, MA.
That inspection had been prompted by a referral from the state’s Department of Labor about high blood lead levels at the site.
Painters were working on the Braga Bridge with hand-tied fall protection, OSHA said.
Inspectors found no lead violations, but they did observe two employees “working on the bridge superstructure without any fall protection, exposing them to a 40-foot fall hazard” —and a fall of up to 150 feet to the water below, OSHA said.
Two months after the inspection, OSHA issued one six-item serious citation and one single-item other-than-serious citation to the painting company. The serious violation, which reflects “substantial probability” of death or serious injury, involved a violation of standards related to horizontal lifelines. None of the citations was related to lead.
M&J did not contest the citations and, on Nov. 19, 2010, signed an Informal Settlement Agreement with OSHA that reduced the original fine and citations.
The agreement included a provision to “use a safety consultant qualified in fall protection systems to design the horizontal lifeline systems to protect employees from falls during bridge work” and gave the contractor until Dec. 15, 2010, to abate the violations.
‘Pressured to Work Fast’
In 2011, OSHA conducted a follow-up inspection prompted by an anonymous complaint. “Among other concerns, the complaint alleged that ‘[e]mployees [are] being pressured to work fast and, as a consequence, are not tying off. Horizontal lifelines are not being installed,’” the Review Commission reported.
Inspectors later issued a Notification of Failure to Abate Alleged Violation (FTA Citation), alleging that the company had failed to address the lifeline violation. OSHA records also indicated that the company had not used a safety consultant to design and install a system as required.
At the site, one company official asked the inspector if the company was going to be cited for a willful violation. Officials also said they were using “experience,” rather than plans or specifications, for the horizontal lifelines. One foreman said “he knew how to install the lifelines through ‘common sense’” and “had installed several of the lifelines at once a few weeks before.”
The initial lines were made from nylon rope, not wire cable, and “usually” involved two employees “pulling the lifeline rope tight with their hands,” employees told OSHA. Some employees said they were not trained in using the lifeline.
According to OSHA, employees building containment structures were using horizontal lifelines that had not been designed, installed and used under the direction of a qualified person, as part of a complete fall arrest system.
M&J contested the violation, initially arguing that “compliance with the cited standard is functionally impossible or would prevent the performance of required work.”
It later abandoned that defense and contended that a set of 12 longitudinal containment cables that were supporting the containment structure served as horizontal lifeline cables. One manager called them “roof cables.”
Those cables were installed by M&J’s project manager and two painters, but were not monitored or evaluated by the Massachusetts Department of Transportation for use as horizontal lifelines. Furthermore, the commission said, the containment cables “were too widely spaced in the center of the bridge to be available as lifelines.”
Photos and Warrants
Eventually, OSHA requested photographs of the lifelines from the company but received no response, the ruling says. In July, an inspector returned to the site to take photos. As he approached the site, the commission said, the inspector saw employees—under supervision—climb over an aerial lift guardrail and lower themselves to the road without tying off.
Company officials then told the inspector that he would need a warrant to take photographs. Days later, two inspectors returned with two police officers and a warrant. After an initial challenge from company officials, they completed the photographs and more interviews. The photos showed problems with the lifelines, OSHA engineers said.
"Serious, life-threatening hazards remained uncorrected even after they were brought to the employer's attention," said Marthe Kent, OSHA's regional administrator for New England. "Employers must effectively address and correct such hazards to prevent a potentially harmful incident from happening."
The decision followed a three-day trial was held before the Occupational Safety and Health Review Commission. After hearing the evidence, the judge upheld the citations and penalties. The company had 20 days from the date of the judge's ruling to appeal, in which case a panel of commissioners would have conducted a discretionary review of the decision. The company did not appeal.
"Employers cannot disregard standards meant to protect the safety of their employees without facing consequences," said Christine Eskilson, Counsel for OSHA with the department's Regional Office of the Solicitor in Boston.