Bigge Crane and Rigging Company, and its successors

Plain-English summary

Bigge Crane and Rigging performed construction work at Travis Air Force Base in California. An OSHA compliance officer observed a Bigge foreman standing near the unprotected edge of a 25-foot-high commissary roof without fall protection. The judge credited the compliance officer's account over the foreman's conflicting testimony and found that the low parapet did not qualify as fall protection. The judge affirmed the serious violation and assessed the proposed $2,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: Serious fall protection violation affirmed and a $2,500 penalty assessed
• Key point: A knee-high parapet did not protect the roof edge, and the judge credited OSHA's identification of the exposed employee.

Full text (OSHRC public release)

                                              United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                         1244 Speer Boulevard, Room 250
                                          Denver, Colorado 80204-3582

SECRETARY OF LABOR,
Comp lainant,

                         v.                                    OSHRC DOCKET NO. 00-0768

BIGGE CRANE AND RIGGING COMPANY,
and its successors,
Respon dent.

APPEARANCES:

   For the Co mplainant:
            Jan M. C oplick, Esq ., U.S. Dep artment of La bor, Office of the Solicitor , San Franc isco, Californ ia

   For the Re sponde nt:
            Robert D . Peterson, E sq., Rocklin , California

Before: Administrative Law Judge: Benjamin R. Loye

                                         DECISION AND ORDER

   This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Bigge Crane and Rigging Company, and its successors (Bigge), at all times
relevant to this action maintained a place of business at the Travis Air Force Base (AFB) in California,
where it was engaged in construction. Respondent admits it is an employer engaged in a business
affecting commerce and is subject to the requirements of the Act.
On January 25-26, 2000 the Occupational Safety and Health Administration (OSHA) conducted
an inspection of Bigge’s Travis AFB work site. As a result of that inspection, Bigge was issued a
citation alleging a violation of §1926.501(b)(1) of the Act, and proposing a penalty of $2,500.00. By
filing a timely notice of contest Bigge brought this proceeding before the Occupational Safety and
Health Review Commission (Commission).
On February 6, 2001, a hearing was held in San Francisco, California. The parties have
submitted briefs on the issues and this matter is ready for disposition.
 Alleged Violations
Serious citation 1, item 1 alleges:
29 CFR 1926.501(b)(1): Each employee on a walking/working surface (horizontal and vertical), with
an unprotected side or edge 6 feet (1.8m) or more above a lower level was not protected from falling by
the use of guardrail systems, safety net systems, or personal fall arrest systems:

(a) An employee of Bigge Crane & Rigging was observed working on the unprotected edge on a 25
foot Commissary roof without fall protection, which exposed the employee to death or other
permanent serious injury or disability.

Facts
CO Kenneatha Clark testified that, on January 25, 2000, she conducted a program planned
inspection at Travis AFB (Tr. 23). CO Clark was accompanied by Susan Clabby, a safety specialist for
Travis AFB, who acted as her escort (Tr. 24). As CO Clark and Ms. Clabby approached the
commissary, they observed a crane, which was being used to hoist slabs of concrete wall out of the
commissary and onto a grassy area outside (Tr. 29, 132; Exh. C-8). Clark testified that from her
position, approximately 120-150 feet away, she could clearly see a man standing on the edge of the
commissary roof (Tr. 30, 35, 43, 93). As she watched, the man put his foot up on the parapet at the
edge of the roof (Tr. 36, 39; Exh. C-4, 002). Clark could not make out the man’s facial features, nor is
he identifiable from the pictures Clark took at the time of the incident (Tr. 35, 38; Exh. C-4, 001 and
002). However, CO Clark stated that the man was tall, with long dark hair, and that he appeared to be
holding a radio (Tr. 36). When Clark observed the hazard, a slab was being lifted out from the center
of the roof (Tr. 151-52). Clark’s testimony was corroborated in all material respects by that of Susan
Clabby (Tr. 178, 182-86).
CO Clark testified that she then proceeded to the job trailer near the commissary. The man
continued to stand on the edge of the roof with his foot on the parapet until she came to within
approximately 70 feet of the commissary, at which point she could no longer see him over the lip of the
building (Tr. 47, 94). At the job trailer she spoke with Doug Smith, a project superintendent with
Intertex, the general contractor on site (Tr. 48). Based on Clark’s description, Smith identified the man
on the roof as Mark Pease, a foreman/rigger for one of the subcontractors, Bigge Crane (Tr. 57, 71,
132). Clark did not speak to Pease on the 25th, however, as all of Bigge’s employees left the site before
Clark could meet with them (Tr. 59-61).
On January 26, 2000, Clark met with Doug Smith and James Coenen, representatives from
Intertex and Bigge, respectively (Tr. 63-64, 69). The representatives took Clark to meet with Mark

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Pease, whom she then interviewed in private (Tr. 71-72). Clark testified that she asked Pease if he was
the man she had seen on the roof the day before (Tr. 72). Clark stated that Pease clearly indicated he
was the man she saw on the roof the previous day. Pease told Clark that he had watched her come on
to the site while monitoring the lift (Tr. 72, 74, 166). Pease admitted that he was not using any fall
protection on the roof (Tr. 75). Pease told Clark that he needed to be able to move around to do his
job, and argued that no fall protection was required (Tr. 74-77). Clark testified that Pease’s appearance
was consistent with her observations of the previous day, and that she had no doubt he was the man she
saw on the roof (Tr. 71, 166).
Mark Pease testified that as foreman/rigger, his job at the Travis AFB site was to ensure that the
interior walls being demolished were conveyed safely from the interior of the commissary to the
landing area (Tr. 216, 220). Pease stated that his job is to make sure the load is secured properly inside
the building, and to observe the load until it clears the building, and the oiler on the ground can see it
(Tr. 217, 222). Once the oiler has the load in sight, Pease testified, he relocates so that he can land it
(Tr. 217-18, 221). Pease’s job requires him to be in radio contact with the crane operator who is
performing the lifts (Tr. 217-18).
Pease testified, however, that although he had been on the commissary roof without fall
protection during the remodeling project, he was never within six feet of the edge of the roof on
January 25th (Tr. 212-14). At the hearing Pease denied seeing Clark and Clabby come onto the site
from the roof. Pease stated that he only saw Clark and Clabby coming up the ramp into the
commissary as he left the site for the day after finishing his last hoist (Tr. 214-15).
Pease stated that when he arrived on the work site on the 26th, Bud Foster, a foreman from
Accurate, told him that OSHA had a picture of someone sitting on the roof (Tr. 225-26). According to
Pease, he told Foster that it was not him (Tr. 225). Pease testified that when Clark interviewed him
later that day, he admitted being on the roof during the entire job (Tr. 236). According to Pease,
however, it never occurred to him to deny being near the edge of the roof, because he did not realize
that Clark thought he was the man OSHA had photographed (Tr. 237, 240-42). According to Pease, he
did not even know that Clark believed a Bigge employee was involved in the misconduct she was
discussing with him. Pease stated that he believed Clark could have been referring to anybody (Tr.
237-38). Pease’s testimony at the hearing contradicted his deposition testimony. During his deposition
Pease admitted that he did know Clark was alleging that a Bigge employee had been on the edge of the
roof (Tr. 237-38).

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Discussion
The cited standard states:
Unprotected sides and edges. Each employee on a walking/working surface (horizontal and
vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower
level shall be protected from falling by the use of guardrail systems, safety net systems, or
personal fall arrest systems.

   As a threshold issue, Bigge argues that Complainant failed to prove the cited standard’s

applicability. Bigge maintains that Complainant did not prove the edge of the commissary roof was an
“unprotected side or edge.”
Subpart M §1926.500(b) defines Unprotected sides and edges as “any side or edge. . . of a
walking/working surface, e.g. floor, roof, ramp or runway where there is no wall or guardrail system at
least 39 inches (1.0 m) high.” It is undisputed that there was a parapet around the edge of the
commissary roof, and that CO Clark did not measure the height of the wall. It is clear, however, from
CO Clark’s testimony, and from Exh. C-4, 002, that the top of the parapet was low enough for a man to
comfortably rest his foot on it. Though CO Clark’s photographs are blurry, they are clear enough for
this judge to find, by a preponderance of the evidence, that the parapet wall was approximately knee
height, considerably less than the 39 inches required for fall protection. The cited standard is
applicable.
As both Complainant and Bigge note in their briefs, the only other issue in dispute is the
identity of the individual on the commissary roof. The testimony of CO Clark and Mr. Pease are in
direct conflict, and cannot be reconciled. In order to resolve this matter, therefore, this judge must
determine which of the two versions of events is more credible.
For the reasons stated below, this judge credits the testimony of CO Clark.
1) Both CO Clark and Ms. Clabby testified that the crane was in operation as they approached
the commissary. Clark specifically stated that the slab was being lifted from the center of the
commissary roof when she observed the hazard. According to Mr. Pease’s own description of his job,
he would have been on the roof, watching the crane as it lifted its load from inside the commissary,
communicating with the crane operator by walkie-talkie. This conforms to Clark and Clabby’s
description of what they saw.
2) Clark and Clabby provided identical, albeit general, descriptions of the individual they saw
on the commissary roof. That description fits Mr. Pease. Intertex’s superintendent was able to
identify Pease from the CO’s description of the exposed employee and her account of his actions.

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3) Pease’s claim that he did not know he had been identified as the individual seen and
photographed on the commissary roof is not credible. Pease had admittedly been asked earlier on the
26th whether he was the man OSHA had photographed on the roof; it is inconceivable that Pease did
not appreciate the purpose of CO Clark’s questioning when Bigge management brought her over to
interview him privately. The differences between Pease’s testimony at the hearing and at his
deposition also impugn his credibility in this matter.
4) Generally, Pease was not a credible witness, in that he was belligerent and uncooperative on
the stand, refusing to clarify ambiguous answers to counsel’s questions.
This judge credits CO Clark’s version of the events of January 25-26, 2000. The cited violation
is deemed established.
Penalty
A penalty of $2,500.00 was proposed for the single “serious” violation.
The violation was correctly classified as serious. One employee was exposed to the danger of
falling approximately 25 feet from the commissary roof to the ground below for approximately three
minutes (Tr. 32, 46, 158, 187). A fall from that height would undoubtedly result in serious injury, up
to and including death (Tr. 48).
As the parties introduced no evidence of Bigge’s size, history, or good faith, this judge has no
basis upon which to reduce the proposed penalty, which will be assessed.
ORDER

1. Citation 1, item 1, alleging violation of §1926.501(b)(1) is AFFIRMED, and a penalty of
   $2,500.00 is ASSESSED.

                                                        /s/
                                                    Benjamin R. Loye
                                                    Judge, OSHRC
   

Dated:

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