B & L Drywall & Acoustical, Inc.

Plain-English summary

B & L Drywall was installing exterior studs and drywall when a newspaper photographed an employee standing on a scissor-lift basket rail about 24 feet above the ground. The employee wore a harness, but his six-foot lanyard was attached below shoulder level and could have allowed a free fall longer than six feet. The judge affirmed that serious rigging violation and a repeat violation for inadequate fall-hazard training, assessing $2,500 in penalties. The judge vacated a separate arresting-force item because the Secretary did not prove the force would exceed the standard's limit, and vacated an aerial-lift modification item because the cited rule did not apply to scissor lifts and the replacement rail was not shown unsafe. A midrail item was affirmed as other-than-serious with no penalty, and the Secretary withdrew the anchorage item.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.453(a)(2), 1926.502(b)(2)(i), 1926.502(d)(15), 1926.502(d)(16)(ii), 1926.502(d)(16)(iii), and 1926.503(a)(1)
• Outcome: Two fall-protection items and the midrail item were affirmed, two items were vacated, one was withdrawn, and $2,500 was assessed.
• Key point: A harness does not satisfy the fall-arrest rules when its lanyard is rigged to allow a free fall longer than six feet.

Full text (OSHRC public release)

Secretary of Labor,
             Complainant,
        v.                                                           OSHRC Docket No. 03-0152
B & L Drywall & Acoustical, Inc.,
             Respondent.

Appearances:

Lindsay A. M cCleskey, Esq., Danielle L. Jabe rg, Esq ., Office o f the Solicitor, U . S. De partm ent of Labo r, Dallas,
Texas
For Com plainant

Mr. Lindy Bud Bostic, President, B & L Drywall & Acoustics, Inc., Conway, Arkansas
For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                         DECISION AND ORDER
        B & L Drywall & Acoustical, Inc. (B&L),1 was installing metal studs and drywall on the

exterior of a new arts building at Hendrix College, Conway, Arkansas, when the work was
inspected by the Occupational Safety and Health Administration (OSHA) on November 12,
2003. OSHA’s inspection was the result of a photograph in the local newspaper showing an
employee on a scissor lift who appeared to be standing on the basket’s top rail without fall
protection. Based on the photograph and OSHA’s inspection, B&L received serious, repeat, and
other-than-serious citations on December 13, 2002. B&L timely contested the citations.
Serious citation no. 1 alleges that B&L violated 29 C.F.R. § 1926.502(d)(15) (item 1a) for
utilizing inadequate anchorage to attach personal fall arrest equipment; 29 C.F.R.
§ 1926.502(d)(16)(ii) (item 1b) for failing to provide the employee a lanyard with a deceleration
device; and 29 C.F.R. § 1926.502(d)(16)(iii) (item 1c) for failing to rig the employee’s full body
harness and lanyard to prevent falling more than 6 feet. The serious citation proposes a grouped
penalty of $1,500.
Repeat citation no. 2 alleges that B&L violated 29 C.F.R. § 1926.503(a)(1) (item 1) for

1
It is noted that Respondent’s letterhead identifies the comp any as “B & L Drywall & A coustics, Inc.”
failing to provide a training program for each employee who might be exposed to a fall hazard.
The repeat citation proposes a penalty of $1,800. The repeat classification is based on a serious
citation dated May 28, 2002, for violation of § 1926.503(a)(1), which has become a final order.
Other-than-serious citation no. 3 alleges that B&L violated 29 C.F.R. § 1926.453(a)(2)
(item 1) for modifying an aerial lift by replacing one portion of the bucket’s top rail with a metal
strip without obtaining the approval of the manufacturer and 29 C.F.R. § 1926.501(a)(2)(i)2 (item
2) for not having an adequate midrail on the end of the scissor lift basket. The other-than-serious
citation proposes no penalty.
The hearing was held in Little Rock, Arkansas, on June 5, 2003. Coverage and
jurisdiction are stipulated (Tr. 9-10). B&L is represented pro se by its president Lindy Bud
Bostic. The parties filed post-hearing position statements.
B&L denies the alleged violations. The alleged violations are based on the conditions
and employee exposure that existed at the time of the newspaper photograph. B&L asserts no
affirmative defenses.
For the reasons discussed, serious citation no. 1, item 1c; repeat citation no. 2, item 1; and
other-than-serious citation no. 3, item 2, are affirmed. Serious citation no. 1, item 1b, and other-
than-serious citation no. 3, item 1, are vacated. Serious citation no. 1, item 1a, was withdrawn by
the Secretary at the hearing (Tr. 16, 53).
Background
B&L has been in the business of installing drywall and acoustical ceilings for 16 years,
primarily in commercial construction projects. B&L’s president is Lindy Bud Bostic and his son,
Tobias Bostic, is vice president. B&L employs approximately 60 employees. B&L’s office is
located in Conway, Arkansas (Tr. 106-107).
In October 2002 B&L contracted to install metal studs and drywall on the exterior and

2
The citation alleges a violation of § 1 926 .501 (a)(2)(i), which does not exist. The Secretary’s motion to amend to
allege a violation of § 1 926.502(b )(2)(i) is GRA NT ED . B&L is not prejud iced and the amend ment mere ly corrects a
typographical error. Amendments to a complaint, including sua spon te amendments, are permissible where the
amendm ent do es not alter the essential factual allega tions co ntained in the citation. Safeway Store No. 914, 16 BNA
OS HC 150 4, 15 17 (No . 91-3 73, 1 993 ) (ame ndm ent pro per b ecause it does not alter citation’s factual allegations), A.
L. Baumgarten Construction, Inc., 16 BN A OS HC 1 995, 199 7 (No. 92-10 22, 1994 ) (sua spon te amendment after
hearing permitted).
interior of three buildings under construction for a new arts complex at Hendrix College3 in
Conway, Arkansas. The general contractor for the project was Tilk, Inc. Craig Richardson, who
had been employed by B&L for 16 years, was the foreman in charge of the work. B&L utilized
approximately 6 employees to work on the project. Jamie Jurado, who had been employed by
B&L off and on for 5 years, was a laborer (Exh. R-1; Tr. 56, 58-59, 107, 109-111).
On November 11, 2002, an employee at the worksite was photographed by the Log Cabin
Democrat newspaper standing on a scissor lift approximately 24 feet above the ground installing
exterior studs. From the photograph, it appeared that the employee was standing on the top rail
of the lift’s basket without fall protection (Exh. C-1; Tr. 19-20, 70).
When the photograph was seen by OSHA on November 12, 2002, OSHA safety specialist
Michelle Martin was assigned to inspect the worksite.4 After arriving on site, Martin determined
that the contractor who was using the scissor lift in the photograph was B&L and the employee
was laborer Jamie Jurado. Martin interviewed Jurado and foreman Richardson. She also
inspected the scissor lift. During her inspection, Martin did not observe the scissor lift in
operation or see employees exposed to unsafe conditions (Exh. C-3; Tr. 20, 53, 54-55, 58, 75).
As a result of OSHA’s inspection, B&L received three citations. B&L completed its
work on the arts complex in March 2003 (Tr. 109).
Discussion
The Secretary has the burden of proving a violation.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (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 employer either
knew or, with the exercise of reasonable diligence could have
known, of the violative conditions).

3
The transcript misspells “Hendricks” and is corrected to “Hendrix” College (Exh. C-1).

4
B& L’s argu ment that OS HA ’s inspection was at a differe nt location than identified in the new spap er is rejected.
Martin initially testified that her inspection was at the University of Central Arkansas (Tr. 55). However, when
shown the newspaper photograph, she corrected the location to Hendrix College, which is also in Conway, Arkansas
(Tr. 82-83). Martin’s inspection photographs of the building appear similar to the building shown in the newspaper
(Exh. C-11). Also , the citation notes the loca tion as F ront Street, which is the ad dress of Hendrix Co llege (T r. 83).
The cou rt accepts that the newsp aper pho tograph and O SH A’s inspection were o f the same loca tion, H endrix
College.
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
There is no dispute that Part 1926 construction standards apply to B&L’s exterior stud
and drywall installation work at Hendrix College. Also, B&L does not dispute that laborer
Jurado and its scissor lift are shown in the newspaper photograph (Exh. C-1).
The alleged violations are based on conditions and the employee’s exposure existing at
the time of the newspaper photograph. Martin did not observe the scissor lift in operation or the
employee exposed to unsafe conditions on the day of her inspection (Tr. 53, 75).
To establish, in part, the alleged violations, Martin interviewed foreman Richardson and
laborer Jurado, who were present at the time of the photograph. Richardson and Jurado did not
testify at the hearing. Their unsigned statements to OSHA, however, are given weight pursuant
to Rule 801(d)(2), Federal Rules of Evidence (statements by a party’s representative and by a
party’s agent or servant concerning a matter within the scope of employment and made during
the existence of the relationship). See DCS Sanitation Management, Inc. v. OSHRC, 82 F.3d 812
(8th Cir. 1996). Richardson, as foreman, supervised the worksite (Tr. 109). He has been a
foreman for B&L for 18 years (Tr. 110). With regard to Jurado, he gave his statement to OSHA
while still employed by B&L and his statement involved his work in the scissor lift and training.
Copies of Martin’s notes from the interviews were provided to B&L for examination purposes
(Tr. 74).
Additionally, it is noted that Martin’s inspection file indicates that Jurado’s first language
is Spanish and she was told that Jurado may have some problem with English (Exh. R-1). She
stated that Jurado “spoke Spanish and little English.” However, Martin testified that although
B&L offered another employee to translate, she was able to communicate with Jurado and he
understood what she asked (Tr. 80). Also, B&L made no showing that Jurado was unable to
speak or understand English.

                                     Alleged Violations
                               SERIOUS CITATION NO. 1
                    Item 1b - Alleged violation of § 1926.502(d)(16)(ii)

The citation alleges that B&L failed to equip an employee’s fall arrest system with a
deceleration device5 when the employee was exposed to a fall of approximately 11 feet. Section
1926.502(d)(16)(ii) provides:
Personal fall arrest systems, when stopping a fall, shall:
(ii) limit maximum arresting force on an employee to 1,800 pounds
(8 kN) when used with a body harness.

        Based on her interview with employee Jurado, safety specialist Martin found that at the

time of the newspaper photograph, Jurado was wearing a full body harness with a 6-foot lanyard
(Exh. C-2, Tr. 22, 52). He told her that he was standing on the top rail of the lift’s bucket with
one foot on the top rail and the other foot on the building’s beam (Exh. C-1; Tr. 25). He was
approximately 24 feet above ground level (Tr. 70). Jurado described that the lanyard was
connected to the harness in the middle of his back and was attached to the building’s 1 inch steel
diagonal cross brace at approximately Jurado’s thigh level (Tr. 24, 26-27). Martin testified that
the lanyard would slide down the bottom of the diagonal cross brace if he had fallen from the
bucket’s top rail (Exh. C-1; Tr. 27-28). Martin estimated that Jurado was exposed to a potential
free fall distance of 11 feet (length of 6 foot lanyard plus 5 feet, which is the estimated distance
between the lanyard’s connection in the middle of Jurado’s back to the bottom of the cross brace)
(Tr. 27). Martin testified that Jurado was approximately 5 feet 6 inches tall and weighed
approximately 150 pounds (Tr. 79-80). Although he had been using the lift all day, Martin
understood that Jurado was standing on the top rail for 5 minutes (Tr. 61, 70-71).
Assistant Area Director David Bates testified that the purpose of a deceleration device is
to limit the arresting force that an employee is subjected to because of a sudden stop. To limit
the arresting force, Bates testified that an employer needs to limit the length of the lanyard or use
a deceleration device on the lanyard (Tr. 128-129). If the distance was limited to less than 6 feet,
Bates opined that “OSHA would possibly not have required the deceleration device” (Tr. 131).
However, to be sure the force is less than 1,800 pounds, Bates testified that he would need to
know the weight of the employee and the length of the fall (Tr. 130).
Appendix C to § 1926.502 advises employers that:

5
A “deceleration device” is “any mechanism . . . which serves to dissipate a substantial amount of energy during a
fall arrest or otherwise limit the energy imposed o n an employee during fall arrest.” Section 1926.500 (b).
 A few extra feet of free fall can significantly increase the arresting
force on the employee, possibly to the point of causing injury.
Because of this, the free fall distance should be kept at a minimum.
And as required by the standard, in no case greater than 6 feet
(1.8m). To help assure this, the tie-off attachment point to the
lifeline or anchor should be located at or above the connection
point of the fall arrest equipment to belt or harness.

     Although the record establishes that the potential free fall distance exceeded 6 feet, the

record fails to establish a violation. There is no showing as to the potential arresting force on
Jurado in a free fall. The Secretary offered no method to calculate the maximum arresting force.
Other than the size and weight of Jurado, which are estimates by Miller, there is no showing of
how to convert feet into pounds and no consideration of other factors, such as type of lanyard.6
The standard requires a showing that the maximum arresting force is limited to 1,800 pounds.
In her post-hearing brief, the Secretary attempts to shift the burden of proof to the
employer to show that the maximum arresting force would not exceed 1,800 pounds. The
Secretary issued the citation and it is the Secretary’s burden to show that the maximum arresting
force would exceed 1,800 pounds. The alleged violation is vacated.
Item 1c - Alleged violation of § 1926.502(d)(16)(iii)
The citation alleges that B&L failed to ensure the lanyard used to secure the employee’s
full body harness was not rigged to prevent a free fall of less than 6 feet. Section
1926.502(d)(16)(iii) provides:
Personal fall arrest systems, when stopping a fall, shall:
(iii) be rigged such that an employee can neither free fall more than
6 feet (1.8 m), nor contact any lower level.

     Based on the newspaper photograph and Jurado’s interview, Martin determined that the

6-foot lanyard was attached to the 1 inch diagonal cross brace at approximately Jurado’s thigh
level. This connection was below Jurado’s shoulder level where the lanyard was connected to
his body harness (Exh. C-1). Also, Martin opined that if Jurado fell, the lanyard would slide
down to the bottom of the diagonal cross brace. Thus, Jurado was exposed to a potential free fall
of 11 feet (Tr. 27-28).

6
As noted in Appendix C to Subpart M, during the arresting of a fall, “a lanyard will experience a length of
stretching or elongation.” T hese distances should be availab le and “must be add ed to the free fall distance .”
 The record establishes without dispute that Jurado’s fall arrest system was not rigged to
limit the free fall to less than 6 feet. Section 1926.500(b) defines “free fall distance” as “the
vertical displacement of the fall arrest attachment point on the employee’s body belt or body
harness between onset of the fall and just before the system begins to apply force to arrest the
fall.” Jurado was standing on the top rail of the scissor lift’s bucket and his 6-foot lanyard was
attached to his body harness on one end and on the other end to a diagonal brace at or below his
thigh level. Therefore, if Jurado fell from the top rail, his fall would exceed 6 feet.
In addition to noncompliance with the terms of § 1926.502(d)(16)(iii) and employee
exposure, the record establishes B&L’s constructive knowledge of the violative condition. In
order to show employer knowledge, the Secretary must show that the employer knew or, with the
exercise of reasonable diligence, could have known of a hazardous condition. Dun Par Engd.
Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986). An employer has constructive knowledge
of a violation if the employer fails to use reasonable diligence to discern the presence of the
violative condition. Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-692, 1992). When
a supervisory employee has actual or constructive knowledge of the violative conditions, his
knowledge is imputed to the employer and the Secretary satisfies his burden of proving
knowledge. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (91-862, 1993).
In this case, Craig Richardson was B&L’s foreman in charge of the worksite (Tr. 109).
He has been a foreman for B&L for 18 years (Tr. 110). He supervised 6 employees on the job
(Tr. 109). Richardson was on site at the time of the newspaper photograph (Tr. 39). He gave
Jurado the lanyard (Tr. 24). At the time of the photograph, Jurado was 24 feet above the ground,
standing in plain view, performing a job for B&L. Richardson knew or should have known of
the improper rigging of the lanyard. His knowledge is imputed to B&L. B&L acknowledges that
it is the foreman’s job to inspect the job site (Tr. 124).
Also, the violation of § 1926.502(d)(16)(iii) is properly classified as serious. Under §
17(k) of the Occupational Safety and Health Act (Act), a serious violation exists if there is a
substantial probability that death or serious physical harm could result from the violative
condition and the employer knew or should have known with the exercise of reasonable diligence
of the presence of the violative condition. In determining whether a violation is serious, the issue
is not whether an accident is likely to occur, but rather, whether the result would likely be death
or serious harm if an accident should occur. Whiting-Turner Contracting Co., 13 BNA OSHC
2155, 2157 (No. 87-1238, 1989).
There is no dispute in this case that a fall in excess of 6 feet and the sudden stop by a
lanyard could cause serious injury. When a standard prescribes specific means of enhancing
employee safety, a hazard is presumed to exist if the terms of the standard are violated. Clifford
B. Hannay & Son, Inc., 6 BNA OSHC 1335 (No. 15983, 1978). Also, as discussed, foreman
Richardson’s knowledge of the violative condition is imputed to B&L.
A serious violation of § 1926.502(d)(16)(iii) is established.
REPEAT CITATION NO. 2
Item 1 - Alleged violation of § 1926.503(a)(1)
The citation alleges that employees were not instructed to recognize hazardous conditions
such as proper guarding requirements for the scissor lift bucket, proper types of lanyards, and
appropriate attachment points for fall arrest systems. Section 1926.503(a)(1) provides:
The employer shall provide a training program for each employee
who might be exposed to fall hazards. The program shall enable
each employee to recognize the hazards of falling and shall train
each employee in the procedures to be followed in order to
minimize these hazards.

   Laborer Jurado told Martin that he had not received any training on fall hazards,

including information about attaching fall arrest systems, proper types of lanyards, and guarding
requirements for scissor lifts (Tr. 38). Martin asked B&L for documentation showing training
(Tr. 38-39, 78-79). The only documentation provided was the company’s general safety policies
(Exh. C-12: Tr. 123).
B&L president Bostic testified that every employee is required to read and sign the
company’s general safety policies (Exh. C-12: Tr. 112). B&L acknowledges, however, that its
safety policies do not include a discussion on proper fall protection, proper lanyards, the use of
fall protection equipment, and proper anchorage (Tr. 121-122). Also, B&L did not know
whether Jurado had signed the safety policies (Tr. 59, 117). Further, it is noted that the general
safety policies are not in Spanish, although B&L has several Spanish speaking employees (Tr.
120). The written safety policies are general safety guidelines and do not specifically relate to
fall protection hazards (Exh. C-12). Nowhere contained in the policy are lanyards and aerial lifts
even mentioned (Tr. 121-122).
B&L also claims that Huggs and Hall Rental Equipment representatives came to the B&L
offices and provided training on scissor lifts and fall protection to supervisors (Tr. 101, 136).
The supervisors were responsible for instructing the employees (Tr. 123). However, this was
approximately 4 years ago (Tr. 132, 136). Laborers and regular employees did not attend
meetings, and there is no showing that supervisors provided them training (Tr. 122). Bostic was
not present throughout the Huggs and Hall presentation and offered no testimony regarding the
specific information provided. His testimony was general in nature (Tr. 113-114).
The record establishes a violation of the training requirements. Laborer Jurado, who has
worked with B&L off and on for 5 years, could not remember any fall protection training. Jurado
was unable to identify fall protection hazards and the proper use of a fall arrest system (Tr. 38,
78-79). There is no showing that there were any B&L safety meetings on the Hendrix project
(Tr. 79).
Martin’s inspection notes indicate that B&L employees on site are required to attend
weekly safety meetings by the general contractor. Also, the notes indicate that employees were
required to comply with Tilk’s safety rules and procedures (Exh. R-1; Tr. 82). B&L made no
showing that Tilk’s safety meetings were held and if Tilk’s safety rules involved training on
worksite fall hazards, fall arrest systems, and the use and maintenance of fall protection
equipment. A copy of Tilk’s safety rules are not in evidence.
The record also establishes that the violation of § 1926.503(a)(1) was properly classified
as repeat. A violation is considered a repeat violation under § 17(a) if, at the time of the alleged
repeat violation, there is a Commission final order against the employer for a substantially
similar violation. Potlatch Corporation, 7 BNA OSHC 1061, 1063 (No. 16183, 1979). The
Secretary establishes substantial similarity by showing that both violations are of the same
standard. Monitor Constr. Co., 16 BNA OSHC 1589, 1594 (No. 91-1807, 1994).
A review of the prior citation issued to B&L in May 2002 establishes that the same
standard at § 1926.503(a)(1) was violated under similar conditions (Exh. C-9). OSHA safety
engineer Richard Watson, who conducted the prior inspection, testified that the B&L foreman in
the previous citation admitted that he had not trained employees in fall protection and that there
was no documentation showing any training (Tr. 95). Watson also testified that his observations
of the site showed employees exposed to various fall hazards (window openings, wall openings,
floor openings) without appropriate fall protection (Tr. 95). He observed many lifts at the site
(Tr. 100). The citation was informally settled by B&L (Exh. C-13; Tr. 96). The settlement did
not vacate or modify the violation of § 1926.503(a)(1), and it became a final order on June 17,
2002 (Exh. C-13; Tr. 97).
OTHER-THAN-SERIOUS CITATION NO. 3
Item 1 - Alleged Violation of § 1926.453(a)(2)
The citation alleges that a 2-inch wide metal strip attached to the end of the scissor lift
basket was not reviewed by the lift manufacturer to ensure that the modification would not effect
the safe operation of the lift. Section 1926.453(a)(2) provides:
Aerial lifts may be “field modified” for uses other than those
intended by the manufacturer provided the modification has been
certified in writing by the manufacturer or by other equivalent
entity, such as a nationally recognized testing laboratory, to be in
conformity with all applicable provisions of ANSI A92.2-1969 and
this section and to be at least as safe as equipment was before
modification.

     In examining the scissor lift used by Jurado, Martin found that a metal strip was anchored

across the rear of the basket (Exhs. C-4, C-5; Tr. 31, 34, 63). The metal strip replaced a top rail
(Tr. 31). The lift had been used on the job site for approximately 4 days (Tr. 30, 35). Foreman
Richardson told Martin that he had requested Bostic to have someone inspect the lift prior to the
OSHA inspection (Tr. 31). Richardson speculated that the top rail had been damaged during
transportation (Tr. 31, 35). Although not in use during the OSHA inspection, Martin inspected
the lift basket. She requested but was not provided documentation showing that the metal strip
had been approved by the manufacturer (Tr. 35). Martin did not contact the manufacturer (Tr.
64). She opined that the metal strip was adequately secured as a top rail (Tr. 66-67). She did not
believe that the metal strip caused the lift to be unsafe (Tr. 46).
Although not argued by the parties, OSHA does not consider scissor lifts as aerial lifts
regulated under § 1926.453. See OSHA Standard Interpretation dated August 1, 2000 7 (scissor

7
This letter revokes and supersedes a statement in CPL 2-1.23 issued January 7, 1997, titled “Inspection Procedures
for Enforcing Subpart L, Scaffolds Used in Construction - 29 CFR 1926.45 0-454,” which stated that “scissor lifts are
add ressed by § 1 926 .453 .” OS HA now c onsiders that an erro neous statem ent.
lifts are not aerial lifts). While there are no specific provisions addressing scissor lifts, OSHA
does consider a scissor lift to meet the general definition of a scaffold under § 1926.451;
therefore, an employer must comply with other applicable provisions of Subpart L when using a
scissor lift.
Further, the standard permits a lift to be “field modified” for uses other than those
intended by the manufacturer, provided the manufacturer or a nationally recognized testing
laboratory certifies that the modification complies with the OSHA and ANSI standards and the
lift is at least as safe as before modification. The metal strip replaced a portion of the top rail on
the rear of the basket. Although there is no evidence that the manufacturer certified the change,
the metal strip was not a modification “for uses other than those intended by the manufacturer.”
It replaced a top rail which was apparently removed during transportation (Tr. 35, 62-63).
Also, the metal strip was not shown to be unsafe or not the equivalent to an adequate top
rail (Tr. 46, 66). It was securely bolted to the exiting frame on both sides (Exhs. C-4, C-6; Tr.
66). Martin acknowledges that the metal strip did not affect the safe operation of the lift (Tr. 67).
The violation is vacated.
Item 2 - Alleged violation of § 1926.502(b)(2)(i)
The citation alleges that the latch used to secure the chain midrail at the end of the scissor
lift basket was broken. Section 1926.502(b)(2)(i) provides:
Midrails, when used, shall be installed at a height midway between
the top edge of the guardrail system and the walking/working level.

    In examining the scissor lift, Martin observed a chain with a broken latch across the rear

of the scissor lift basket (Exh. C-7; Tr. 36-37). The broken latch prevented the chain from being
secured (Tr. 37). The chain was used as a midrail (Tr. 37). Martin opined that an employee
could fall through the opening if he was bending down to retrieve a tool (Tr. 37). The lift had
been on site for 4 days (Tr. 30, 35). Although not in use during the OSHA inspection, the lift had
been used by Jurado practically all day on November 11, 2002 (Tr. 29, 31, 61). B&L did not
dispute the observations of Martin.
An other-than-serious violation of § 1926.502(b)(2)(i) is established. The chain could not
be secured because of the broken latch. There was no midrail. However, Martin opined that the
employee in the lift’s basket was not exposed to an immediate hazard because the employee
generally works from the front of the basket (Tr. 46).
Penalty Consideration for Citation No. 2
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.
B&L employs approximately 65 employees (Tr. 107). There were 6 employees on the
Hendrix College project (Tr. 56, 109). As a medium size employer, B&L is entitled to credit for
size. However, no credit is given for history or good faith. B&L received a citation in May 2002
which also included a violation of the training requirements (Exhs. C-9, C-13; Tr. 42).
A penalty of $700 is reasonable for serious Citation no. 1, item 1c, violation of
§ 1926.502(d)(16)(iii). One employee was exposed for approximately 5 minutes. The employee
was wearing a proper fall arrest system consisting of a full body harness and 6-foot lanyard.
Although improperly rigged, the lanyard was attached to a diagonal brace.
A penalty of $1,800 is reasonable for repeat Citation no. 2, item 1, violation of
§ 1926.503(a)(1). The record shows that at least one employee was not trained in fall protection
and equipment.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
1. Serious Citation no. 1, item 1a, violation of § 1926.502(d)(15), is withdrawn by
the Secretary.
2. Serious Citation no. 1, item 1b, violation of § 1926.502(d)(16)(ii), is vacated and
no penalty is assessed..
3. Serious Citation no. 1, item 1c, violation of § 1926.502(d)(16)(iii), is affirmed and
a penalty of $700 is assessed.
4. Repeat Citation no. 2, item 1, violation of § 1926.503(a)(1), is affirmed and a
penalty of $1,800 is assessed.
5. Other-than-Serious Citation no 4, item 1, violation of § 1926.453(a)(2), is vacated
and no penalty is assessed.
6. Other-than-Serious Citation no. 4, item 2, violation of § 1926.502(b)(2)(i), is
affirmed and no penalty is assessed.

                                               /s/ Ken W. Welsch
                                         KEN S. WELSCH

Date: August 11, 2003 Judge