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Built for a Simpler Era, OSHA Struggles When Tower Climbers Die

Tower climbing is now ranked as one of the most dangerous jobs in the US, so why isn't OSHA doing more to protect climbers' lives?

| Wed Jun. 13, 2012 6:00 AM EDT

The tower industry doesn't function this way. Work is done on thousands of cell sites in remote locations all over the country for short periods of time. Carriers sometimes don't own towers, leasing space for their antennas instead, and typically don't have employees on site.

On paper, the multi-employer policy allows OSHA to cite companies that contract out work if they supervise a work site and can correct safety violations or require others to do so.

In some instances, courts and OSHA's appeals commission have interpreted the policy more narrowly, ruling that if companies didn't expose their own employees to danger or didn't have specific knowledge of the conditions that caused harm, OSHA could not impose sanctions.

Business organizations, such as the National Association of Home Builders, have argued against penalties based on the multi-employer policy, contending that employers should be responsible only for their own employees, not those hired by subcontractors.

OSHA sometimes wins such battles. In 2009, for example, the 8th U.S. Circuit Court of Appeals in Missouri upheld the agency's citation against a general contractor for failing to ensure that a subcontractor used proper safety gear on a scaffold. But these victories often have been costly and time-consuming, playing out over years.

Some of the agency's leaders have been skeptical about pursuing cases under the multi-employer policy. Charles Jeffress, OSHA's top administrator from 1997 to 2001, said companies whose employees are not on site should not be held accountable for hazards created by subcontractors.

"You can't sit in an office building thousands of miles away and direct the work," he said.

Philip Colleran, who worked as a senior compliance officer at OSHA in Illinois for 17 years before leaving to start a private consulting firm in 1990, said the agency has become reluctant to initiate multi-employer cases without what it considers overwhelming evidence.

"The sad truth is the agency's lawyers are still reluctant to prosecute even clear-cut controlling entities, such as general contractors," he wrote in an email, "let alone nebulous relationships such as the type of subcontractors you're addressing."

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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 employees all confirmed the fact that that was just normal practice. That's just the way they normally did things."

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.

Sulfridge's co-workers readily acknowledged that he had been free climbing working without fall protection gear and that this was pervasive on the job. They told Gray they routinely didn't wear straps, known as lanyards, to clip themselves onto the tower.

"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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