D. Allen Bros., Inc.

Plain-English summary

A bricklayer fell 42 feet to his death while crossing between scaffold sections that lacked end rails, and neither he nor his coworker wore personal fall protection. The construction manager's safety official had documented missing end rails on D. Allen scaffolds ten times before the accident and reported each instance to D. Allen's foreman. The judge found that reasonable diligence would have led the foreman to ensure end rails or personal protective equipment were in place, and the missing rails should have been discovered during the morning inspection. The serious violation was affirmed with a $4,200 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(g)(1)(vii)
• Outcome: The serious scaffold fall-protection violation was affirmed and a $4,200 penalty was assessed.
• Key point: Repeated prior notices of missing scaffold end rails establish that a foreman should anticipate the condition and take concrete steps to prevent recurrence.

Full text (OSHRC public release)

SECRETARY OF LABOR,

                Complainant,
                         v.                          OSHRC DOCKET NO. 02-0647

D. ALLEN BROS., INC.,
Respo ndent.

Appearances: Carolyn V. Bostic, Esquire Dennis E. Allen, President
U.S. Department of Labor D. Allen Bros., Inc.
Office of the Solicitor Glenmoore, Pennsylvania
Philadelphia, Pennsylvania For the Respondent, pro se.
For the Complainant.

Before: COVETTE ROONEY
Administrative Law Judge

                                     DECISION AND ORDER

      This matter is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970 , 29 U.S.C.
§ 651 et seq. (“the Act”). On January 9, 2001, the Occupational Safety and Health Administration
(“OSHA”) learned of an accident that had occurred on September 26, 2001, at a work site of
Respondent, D. Allen Bros., Inc. (“D. Allen), at 4th Street and Lehigh Avenue in Philadelphia,
Pennsylvania. D. Allen was the masonry subcontractor at the site, and the accident involved D. Allen
employee Charles Stier, a bricklayer, who died as a result of falling 42 feet from scaffolding on
which he was working. (Tr. 37, 109; Exh. G-3). On January 10, 2002, OSHA Compliance Officer
(“CO”) Robert McDonough began an investigation into the events surrounding the accident. On
March 26, 2002, OSHA issued to D. Allen a citation alleging a serious violation of 29 C.F.R. §
1926.451(g)(1)(vii) and proposing a total penalty of $4,200.00.1 D. Allen timely contested the
citation, and, on May 2, 2002, this matter was designated for E-Z Trial pursuant to Commission

      1
          29 C.F.R. § 1926.451(g)(1)(vii) provides as follows:
               For all scaffolds not otherwise specified in paragraphs (g)(1)(i)
               through (g)(1)(vi) of this section, each employee shall be protected by
               the use of personal fall arrest systems or guardrail systems meeting
               the requirements of paragraph (g)(4) of this section.

Rules 200-211, 29 C.F.R. §§ 2200.200-211.2 On November 15, 2002, the hearing was held in this
matter. At the end of the hearing, the parties asked for the opportunity to file post-hearing briefs.
Post-hearing briefs have been submitted, and this matter is ready for disposition.
The Relevant Testimony
CO McDonough testified that he learned the construction manager at the site had investigated
the accident right after it occurred; that investigation included photos of the area from which the
employee had fallen and an accident report. CO McDonough interviewed management employees
of the construction manager, including Safety Manager Kevin Garnot, one of the individuals who
had performed the investigation. The CO also interviewed D. Allen employees, including Keegan
Shinholster, the person who was working with Mr. Stier on the day of the accident. As a result of
his investigation, CO McDonough concluded the guardrail system in use on September 26, 2001,
did not meet OSHA requirements, in that it did not have end rails on it; further, while Mr. Stier could
have used personal protective equipment as an alternative, he had worn no such equipment. The CO
recommended the issuance of a citation alleging a violation of 29 C.F.R. 1926.451(g)(1)(vii), which
requires employees to be protected by the use of personal fall arrest systems or guardrail systems that
meet specified requirements.3 (Tr. 121-24, 130-33; Exhs. G-2, G-3).
Kevin Garnot, the construction manager’s safety manager, testified that his responsibilities
included performing safety audits for 10 hours a week, which resulted in his being on site two to
three times a week. He inspected D. Allen’s scaffolding as a part of his audits, and, based on his
inspections between July 31, 2001, and September 24, 2001, he documented ten occasions in which
D. Allen’s scaffolds lacked end rails. He reported each of these observations to D. Allen’s foreman,
Robert Grant, who always said he would try to correct the problem as soon as he could. Mr. Garnot
further testified that he was on site on September 26, 2001, when, around 7:30 or 7: 45 a.m., Mr.

   2
  D. Allen does not dispute that it is an employer within the meaning of the Act or that the

Commission has jurisdiction in this matter.
3
29 C.F.R. § 1926.451(g)(4)(i) provides as follows:
Guardrail systems shall be installed along all open sides and ends of
platforms. Guardrail systems shall be installed before the scaffold is
released for use by employees other than erection/dismantling crews.

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Grant advised him of the accident. Mr. Garnot and another official of the construction manager
promptly began an investigation, which involved taking photos of the scaffold, talking to Mr. Grant
and other employees, and completing a written report. The investigation led Mr. Garnot to conclude
that Mr. Stier, who was on the top level of the scaffold at a height of 42 feet, lost his balance and fell
as he was attempting to access the building’s west side from the northwest side.4 Mr. Garnot also
concluded that there were no end rails on the scaffolding and that Mr. Stier was not wearing fall
protection at the time of the accident. (Tr. 11-30, 37, 41-44, 88-91; Exhs. G-1, G- 2, G-3).
Keegan Shinholster, the D. Allen bricklayer who was the only witness to the accident,
testified that he working with Mr. Stier on September 26, 2001, and that they were both on the
scaffold when the accident occurred. He stated that Mr. Grant had assigned them the task of washing
down the brick wall on the street or west side of the building and that this task required them to work
on the top level of the scaffold. He also stated there were no end rails on that level of the scaffold
that day and that neither he nor Mr. Stier wore any personal protective equipment. Mr. Shinholster
said that Mr. Stier had crossed over to the scaffold on the northwest side of the building and was
attempting to cross back over to the west side scaffold; Mr. Stier grabbed hold of a wet brick at the
top of the wall, the brick came loose, and Mr. Stier fell to the ground. (Tr. 105-12; Exh. G-2).
Robert Grant, D. Allen’s foreman, testified that every day before employees began work he
performed an inspection of the scaffolding that included checking for end rails. He further testified
that although the guardrails and end rails were moved “constantly” during the course of the day, he
would try to install a rail “instantly” upon being notified that one was not in place. Mr. Grant first
stated that he “believed” the scaffold in question had end rails in place at the beginning of the shift
on the day of the accident; he later said he was “positive” this was the case. (Tr. 149-151, 154-58).
The Secretary’s Burden of Proof
In order to establish a violation of an OSHA standard, the Secretary has the burden of
proving, by a preponderance of the evidence: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the violative
conditions, and (d) the employer’s actual or constructive knowledge of the violation (i.e., the

    4
     D. Allen removed the scaffold on the northwest side right after the accident, and, as a result,

the photos taken show only the scaffold on the west side of building. (Tr. 30-33, 39, 109; Exh. C-2).

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employer either knew, or with the exercise of reasonable diligence could have known, of the
violative conditions).5 Atlantic Battery Co., 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994).
Discussion
I find that the Secretary has met her burden of proving the alleged violation. It is undisputed
that the cited standard is applicable because fall protection is required for employees on a scaffold
more than 10 feet above a lower level. The record establishes that the subject scaffold was a tubular
frame scaffold that had seven tiers, each of which was about 6 feet high, and that the scaffold was
approximately 42 feet in height. (Tr. 14, 44). Mr. Shinholster, the only witness to the accident,
testified that both he and Mr. Stier were working on the scaffold that day. Mr. Shinholster further
testified that the scaffold lacked end rails and that neither he nor Mr. Stier wore any personal
protective equipment. Mr. Shinholster’s testimony at the hearing was unequivocal, and it was
consistent with what he told CO McDonough during the OSHA investigation. In addition, I observed
the demeanor of Mr. Shinholster on the stand and found him a credible and convincing witness.
I also observed the demeanor of Mr. Grant on the stand, and I have closely examined his
testimony. In so doing, I note that his statements about the presence of end rails on the scaffold were
equivocal. He first testified that he “believed” that end rails were in place on the scaffold that day.
(Tr. 151). He also testified that he “fe[lt]” there were end rails on the top level of the scaffold on the
day of the accident, but he then testified that he was “positive” this was so. (Tr. 154, 156). He
subsequently reverted to his statement that he “fe[lt]” there were end rails on the scaffold. (Tr. 158).
I find that Mr. Grant’s use of the words “believed” and “fe[lt]” renders his testimony unpersuasive,
especially in light of the testimony of Mr. Shinholster. I further find that the scaffold checklist that
Mr. Grant completed at the beginning of the day on September 26, 2001, does not validate his

    5
      “Reasonable diligence involves several factors, including an employer’s ‘obligation to

inspect the work area, to anticipate hazards to which employees may be exposed, and to take
measures to prevent the occurrence.’ Frank Swidzinski Co., 9 BNA OSHA 1230, 1233 (No. 76-4627,
1981). ...Other factors indicative of reasonable diligence include adequate supervision of employees,
and the formulation and implementation of adequate training programs and work rules to ensure that
work is safe.” Pride Oil Well Serv., 15 BNA OSHA 1809, 1814 (No. 87-692, 1992).

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“belief” or “feeling” that the scaffold had end rails that morning.6 Finally, I find that other evidence
in the record supports a conclusion that the scaffold did not in fact have end rails in place. In
particular, the photos that were taken of the west wall just after the accident show no end rails on the
scaffold’s top level, and the inspections that Mr. Garnot made previously of D. Allen’s scaffolding
establish that there were missing end rails on a number of occasions. See Exhibits G-1 and G-2.
Based on the record, D. Allen was in violation of the terms of the cited standard.
The record also establishes both employee access to and employer knowledge of the violative
condition. Mr. Shinholster and Mr. Stier plainly had access to the condition, in light of the fact that
they were assigned to work on an open-ended scaffold that was 42 feet in height. Moreover, D. Allen
clearly could have known of the violative condition with the exercise of reasonable diligence. The
evidence shows that Mr. Grant was advised that end rails were missing from scaffolding at the site
on ten prior occasions, and, had Mr. Grant been reasonably diligent, he would have taken measures
to ensure that end rails were in place as required or that employees wore personal protective
equipment. In addition, Mr. Grant should have discovered the missing end rails during his inspection
on September 26, 2001, because that was where employees were going to be working that morning
and the condition was in plain view. Mr. Grant’s knowledge is imputed to D. Allen, and the alleged
violation of 29 C.F.R. § 1926.451(g)(1)(vii) is accordingly affirmed.7

   6
     D. Allen’s scaffold checklist does not contain a specific itemization for end rails, which I

find significant in view of the previous notices the company had received about missing end rails.
Further, Mr. Grant’s testimony that his inspection of “braces” included checking for end rails was
unconvincing, as it is clear there were no end rails on the cited scaffold. (Tr.157; Exh. R-1).
7
Knowledge or constructive knowledge may be imputed to an employer through a
supervisory agent. Hamilton Fixture, 16 BNA OSHC 1073 (No. 88-1720, 1993), Dun Par Eng’d
Form Co., 12 BNA OSHA 1962, 1965 (No. 82-928, 1986). When the Secretary seeks to establish
knowledge by demonstrating that the supervisor violated the standard, the Secretary must show that
the supervisor’s actions were reasonably foreseeable because of inadequacies in the employer’s
safety program and that the employer, therefore, did not exercise reasonable care to prevent or detect
the condition. Pennsylvania Power & Light Co., 737 F.2d 350, 357-58 (3d Cir. 1984). Further, “an
employer will be held ‘excused from responsibility for acts of its supervisory employees’ upon a
showing ‘that the acts were contrary to a consistently enforced company policy, that the supervisors
were adequately trained in safety matters, and that reasonable steps were taken to discover safety
violations committed by its supervisors.’” Id. at 358. D. Allen made no such showing here.

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Classification of the Violation
Section 17(k) of the Act, 29 U.S.C. § 666(k), provides that a violation is “serious” if there
is “a substantial probability that death or serious physical harm could result” from the violation. To
show that a violation was serious, the Secretary need not establish that an accident was likely to
occur, but, rather, that an accident was possible and that the probable result of an accident would
have been death or serious physical harm. Flintco, Inc., 16 BNA OSHA 1404, 1405 (No 92-1396,
1993). The Secretary appropriately classified this violation as serious because Mr. Stier incurred
serious injuries from his fall and subsequently died. The violation is thus affirmed as serious.
Penalty Assessment
Pursuant to section17(j) of the Act, 29 U.S.C. § 666(j), the Commission is authorized to
assess for each violation an appropriate penalty, giving due consideration to the gravity of the
violation and to the size of the employer’s business, its previous history of OSHA violations, and
its good faith. Merchant’s Masonry, Inc., 17 BNA OSHA 1005, 1006-07 (No. 92-424, 1994). The
most significant of these factors is the gravity of the violation, which includes the number of exposed
employees, the duration of exposure, the precautions taken to prevent injury, and the degree of
probability that an injury would occur. Id.
With respect to the gravity of the violation, the Secretary determined that the severity of the
violation was high and that the probability of an injury occurring was greater. The gravity-based
penalty was reduced in view of the small size of the employer’s business; however, no reductions
were given for history or good faith. (Tr. 133-36). On the basis of the foregoing, I find that the
Secretary’s proposed penalty of $4,200.00 is appropriate. The proposed penalty of $4,200.00 is
accordingly assessed.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes my findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based on the foregoing decision, it is ORDERED that:
1. Serious Citation 1, Item 1, alleging a violation of 29 C.F.R. § 1926.451(g)(1)(ii), is
AFFIRMED, and a penalty of $4,200.00 is assessed.

                                             -6-

/s/
COVETTE ROONEY
Judge, OSHRC

Dated: January 27, 2003
Washington, D.C.

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