August 28, 2014
OSHA Struggles When Tower Climbers Die
Posted on May 24, 2012
By Ryan Knutson, PBS Frontline, and Liz Day, ProPublica
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The one instance in which OSHA tried to sanction a carrier after one of its subcontractors died on a cell tower illustrates the legal hurdles the agency must clear.
The case began in May 2006, at a cell tower in rural Kentucky.
When Randy Gray, an investigator with Kentucky OSHA, arrived on the site, 22-year-old Michael Sulfridge was lying face up, eyes open, 380 feet below where he had been working. Sulfridge looked curiously unaffected by the fall aside from the blood streaked under his nose. His scuffed gray sneaker and work bag, holding only a pack of cigarettes, dangled from a barbed wire fence next to his body.
Square, Site wide
“The lanyards were all in the back of the supervisor’s truck,” Gray said. “Some of them were even in new packaging, never opened up. The employees all confirmed the fact that that was just normal practice. That’s just the way they normally did things.”
Free climbing is strictly forbidden under OSHA regulations, but tower climbers sometimes do it to work more quickly. Gray cited Tower Services Inc., the subcontractor that employed Sulfridge, for several safety violations and proposed $143,000 in fines.
Then he went a step further, taking aim at Bluegrass Cellular, the cell company that had hired Tower Services.
In his report, Gray said Bluegrass’ field operations manager, Daniel Combs, told him he regularly visited about half of the carrier’s towers when work was going on. Tower Services had worked on Bluegrass sites for at least two years, Gray learned. He concluded that Combs “could have detected” that Tower Services climbers weren’t taking proper safety precautions.
“It just seems logical that whenever the carrier was here, that they had the possibility to know that these people were not tying off with personal protective equipment,” Gray said.
Gray issued citations against the cell carrier for failing to conduct safety inspections and ensure the use of fall protection gear, proposing $7,000 in fines.
Bluegrass pushed back. In letters from its lawyers and affidavits from employees, the company said it had no responsibility for the safety of subcontractors.
“Bluegrass is convinced that only by exerting actual control over the work of an independent contractor could an owner ever have any duty to oversee the safety of a contractor’s employees,” the carrier’s attorney wrote in a 2007 letter to the assistant general counsel for the Kentucky Labor Cabinet. “Bluegrass has never exerted actual control over the work of an independent contractor doing construction work at any of its towers.”
Combs submitted an affidavit saying that he hadn’t visited half of Bluegrass’ cell sites, as Gray’s report had said, and only “sometimes” checked on their progress.
Ultimately, Gray couldn’t prove that anyone from Bluegrass had been on the site when Sulfridge fell or had witnessed the unsafe practices that led to his death. In 2009, OSHA dismissed the citations against the carrier.
Bluegrass and Tower Services declined to comment for this story. OSHA reduced Tower Services’ fine to $24,000 after the company promised to provide more training, require employees to use fall protection and facilitate random inspections of its sites.
Gray, who retired from OSHA in 2008 and runs a safety consulting company, came away frustrated with the outcome.
“The easiest and simplest way to avoid getting a citation is to do what Bluegrass did, and don’t go to the job site,” he said.
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With the exception of the Sulfridge case, OSHA has mostly targeted small subcontractors for discipline when tower climbers were killed in accidents.
But even companies hit with multiple citations often received deep discounts on fines based on their size or lack of previous safety violations, OSHA records show. Some obtained additional reductions by appealing or found ways to sidestep penalties altogether. OSHA waived a $6,300 fine 2013 issued after a tower climber sustained massive injuries in a 240-foot fall 2013 when it could not find the company owner, Ryan Chapman, who had shut down his business and started a new one. Contacted by ProPublica and PBS “Frontline,” Chapman said he was unaware of OSHA’s efforts to reach him.
“I figure if they want to talk to me, they’d find me,” he told a reporter. “I mean, you got my number.” (We tracked down Chapman’s phone number on an online industry message board.)
With about 800 tower-climbing subcontractors operating nationwide 2013 many of them small and short-lived 2013 it’s unlikely that pressing these companies will bring systemic safety improvements, said David Weil, a Boston University economics professor who studies subcontracting.
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