Central Building & Preservation, L.P.

Plain-English summary

Central Building & Preservation assigned two employees to mix mortar and stage materials on the 24th floor of a Chicago building. They worked within a foot of parapets as low as 15 to 17 inches without a guardrail, safety net, or personal fall arrest system. The company admitted technical noncompliance but argued that the violation was de minimis because the parapets provided partial protection. The judge rejected that argument because the low parapets did not make the relationship to employee safety negligible and a fall could have been fatal. He affirmed the violation as serious and assessed a $2,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: The fall-protection violation was affirmed as serious with a $2,500 penalty.
• Key point: A low parapet does not reduce a high-rise fall-protection violation to de minimis when employees work close to the inadequately guarded edge.

Full text (OSHRC public release)

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

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Compla inant,

                            v.                                  OSHRC DOCKET NO. 03-1297

CENTRAL BUILDING & PRESERVATION
L.P.,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Susan W itz, Esq ., Office o f the Solicitor, U .S. Department of Lab or, Chicago , Illinois

      For the Re spondent:
               Charles T . Rivkin, President, C TR , Inc., Chicago , Illinois

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

651-678; hereafter called the “Act”).
Respondent, Central Building & Preservation L.P. (Central), at all times relevant to this action
maintained a place of business at 230 North Michigan, Chicago, Illinois, where it was engaged in tuck-
pointing and related activities. Central admits it is an employer engaged in a business affecting commerce
and is subject to the requirements of the Act.
On May 15, 2003, the Occupational Safety and Health Administration (OSHA) initiated an
inspection at Central’s North Michigan work site. As a result of that inspection, Central was issued a
citation alleging a violation of 29 C.F.R. §1926.501(b)(1) of the Act. By filing a timely notice of contest
Central brought this proceeding before the Occupational Safety and Health Review Commission
(Commission). On February 10, 2003 a hearing was held on this matter in Chicago, Illinois. No briefs
were requested, and this matter is ready for disposition.
 Alleged Violation of §1926.501(b)(1)
Serious Citation 1, item 1 alleges:
29 CFR 1926.501(b)(1): 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 was not protected
from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems:

a. On or about May 15, 2003, at the addressed jobsite, employees working at approximately two hundred
and sixty-eight (268) feet and four (4) inches above the ground on the twenty-fourth (24th) floor deck,
mixing mortar and staging equipment/materials in preparance (sic) for work on the “parapet” wall
measuring twenty-five (25) inches in height were exposed to falls due to unprotected sides and edges.

Facts
The facts in this case are admitted (Tr. 4). OSHA Compliance Officer (CO) Sturtecky testified that
on May 15, 2003, he observed two of Central’s employee’s on the 24th floor deck of the Old Carbide
building at 230 North Michigan (Tr. 11, 18; Exh. C-1, C-2, C-3; see also testimony of CO James
Martineck, Tr. 85). The employees were mixing mortar for the tuck-pointing operations taking place on
scaffolds above and below the deck (Tr. 12, 18, 38, 42; Exh. C-1; see also testimony of CO James
Martineck, Tr. 86). At the time of the inspection, one of the employees was seen leaning over a parapet
wall, talking to employees working on a scaffold below (Tr. 12-13, 26-27). Central’s foreman, Lupe
Duran, told CO Sturtecky that he assigned the two employees to work in the area (Tr. 20). No fall
protection system was provided by Central, though the employees were partially protected by the parapet
wall, which was approximately 24 to 25 inches tall and 16 inches wide and stepped up to approximately
38 inches for short runs along the south side of the deck (Tr. 15, 87; Exh. C-1, C-2, C-3). Approximately
70 linear feet of the edge were inadequately protected (Tr. 14-15; Exh. C-1, C-2, C-3). The employee
leaning over the side was within six inches of this parapet (Tr. 26-27, 87; Exh. C-3). According to
Sturtecky, the 19 feet of parapet on the west side of the deck was only 15 to 17 inches high (Tr. 24, 34).
The second employee was working within a foot of the west parapet (Tr. 26, 87; Exh. C-1). Foreman
Duran agreed to, and did install guardrails between the higher sections of parapet (Tr. 20-21, 106; Exh. R-
2, R-3).
Discussion
The cited standard provides:
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.

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Central admits that it was in technical violation of the standard, but believes that the violation
should be classified as de minimis, because its employees were not exposed to a hazard (Tr. 5). Central
bases its argument on CO Sturtecky’s testimony that it is OSHA’s policy not to cite unprotected edges1
where a wall or parapet is less than 39 inches if the height of the parapet plus its width equals 48 inches
(Tr. 45), and on HST Roofing, Inc., 19 BNA OSHC 1965, 2002 CCH OSHD ¶32,585 (No. 01-0014), in
which Administrative Law Judge Irving Sommer found that the Secretary failed to prove that HST
employees were exposed to a hazard.
This judge notes that CO Sturtecky found that the height plus the width of Central’s parapet wall
did not equal 48 inches, and determined that, under the plain language of the standard, as well as OSHA
policy, Central should be cited (Tr. 46, 50).
Further, HST Roofing, Inc. is inapposite. In that case Judge Sommer found that the Secretary failed
to prove that the parapet on the cited roof was less than 39 inches high. The COs’ testimony as to the
height of the parapet walls in this matter was uncontradicted. Moreover, in HST Roofing, Inc., the
evidence showed that HST employees did not work in those areas of the roof where the parapet was absent.
In this case, two COs photographed employees working a foot or less from the inadequately guarded edges.
A violation is de minimus when there is technical noncompliance with a standard, but the departure
bears such a negligible relationship to employee safety or health as to render inappropriate the assessment
of a penalty or the entry of an abatement order. Cleveland Consolidated, Inc., 13 BNA OSHC 1114,
1987-90 CCH OSHD ¶27,829 (No. 84-696, 1987). Under these circumstances, where Respondent failed
to provide fall protection for employees working within a foot of a 15 to 17 inch parapet on the edge of
a 24th story deck, this judge cannot find that Respondent’s noncompliance bears a negligible relationship
to employee safety.2 It is clear that the parapet Central relies on provided only partial fall protection on
the south, and none on the west side of the cited deck. The condition could have resulted in a fatal fall and
so must be classified as serious.
Penalty
The fall hazard to which the cited employees were exposed was at least 190 feet and, should an
accident have occurred, would certainly have resulted in death (Tr. 4-5, 23). CO Sturtecky testified that

        1
           Unprotected sides and edges means any sid e or edge (except at entrances to po ints of acc ess) 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. 29 C.F.R. §19 26.500(b ) Definitions.

        2
           Additionally, this judge notes that the Court of Appeals in the Seventh Circuit has held that the de

min imis classificatio n cann ot be used to ove rride the Sec retary's rule-m aking d ecision s. Caterpillar, Inc. v. Herman,
131 F.3d 666, 668 (7 th Cir. 19 97).

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the employees were exposed for three to four hours that morning, and that there was a good probability of
an employee falling as the work area was cluttered and it was a windy day (Tr. 26, 29, 88). Based on the
high gravity of the violation, the CO proposed a penalty of $5,000, which was reduced by 50% due to
Central’s small size, 75 employees, and the fact that it had received no other OSHA citations within the
past three years (Tr. 28, 58). No other violations were observed during the inspection, and the CO
concluded that Central’s workplace was otherwise safe (Tr. 32-33, 90).
Based on the record I find that the proposed penalty is appropriate; $2,500.00 will be assessed.

                                           ORDER

1. Citation 1, item 1, alleging violation of 29 CFR 1926.501(b)(1) is AFFIRMED, and a penalty of
   $2,500.00 is ASSESSED.

                                                   /s/
                                                  Benjamin R. Loye
                                                  Judge, OSHRC
   

Dated: April 8, 2004

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