Steel contractor not responsible for plumbers’ injuries

An administrative law judge of the Occupational Safety and Health Review Commission vacated citations issued against a steel company in a decision released Tuesday.

In Secretary of Labor v. Outback Steel Services LLC, the U.S. Occupational Safety and Health Administration had cited a steel contractor for injuries sustained by two non-employee plumbers when steel joists fell from overhead during the construction of a convenience store and gas station in Colorado Springs, Colorado.

Outback Steel Services LLC of Canon City, Colorado, had been hired to erect the frame of the building with steel columns, beams and joists. Each steel joist weighed 300 to 400 pounds. A plumbing company had also been contracted to work on the building and was tasked with excavating the soil under the steel structure so that underground plumbing could be installed but was about two weeks behind schedule.

On June 20, 2017, the plumbers asked the other contractors to clear the jobsite so they could work. Outback’s employees had already been setting and welding joists for several hours that morning and asked the plumbers for 40 more minutes to weld down a bundle of joists as a precaution, but their repeated requests were denied.

About 20 minutes later, one of the plumbers hit a steel structural beam with an excavator, causing two of the joists overhead to fall, injuring two of the plumbers.

The OSHA investigator who arrived at the worksite the day after the accident alleged that Outback failed to secure steel joists to prevent unintended displacement and failed to train employees to recognize hazards associated with steel erection in violation of the Occupational Safety and Health Act. The investigator issued two citations carrying a proposed penalty of $8,692.

Outback appealed the decision to the OSHRC, and after a trial in Denver, an administrative law judge vacated the citations.

The ALJ noted that Outback’s foreman repeatedly asked the general contractor and the plumbers for a time to weld down — and therefore permanently secure — the four overhead joists, but that the requests were denied.

“It is entirely inequitable to hold an employer responsible for violating a safety regulation … when the cited employer specifically alerted the third-party employer and the (general contractor) of a possibly unsafe condition before anyone was exposed,” said the ALJ. As a result, the judge held that OSHA failed to prove by a preponderance of the evidence that the cited regulation was violated.

The judge also vacated the citation related to insufficient training, noting that Outback’s employees had recognized the potential hazard and requested 40 minutes to weld down the joists to ensure the area underneath was completely safe for the plumbers. The fact that the crew voiced concerns and repeatedly requested an opportunity to make the area safe “demonstrated their training and awareness,” said the ALJ.

In addition, the ALJ found that the record established that Outback maintained safety policies and monitored employees to ensure the adequacy of their training and knowledge.

Outback and its attorney did not immediately respond to requests for comment.