Tradesmen Group, Inc.

Plain-English summary

Tradesmen Group performed renovation, remodeling, and historical restoration work at a site in Peninsula, Ohio. OSHA cited the company after two employees worked from an aerial lift and on a working surface without required fall protection. After a hearing, the judge issued a bench decision finding both violations serious. He affirmed both citation items and assessed a $500 penalty for each, for a total of $1,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.453(b)(2)(v) and 1926.501(b)(1)
• Outcome: Two serious fall-protection violations were affirmed with $1,000 in total penalties.
• Key point: Employees working from an aerial lift or exposed working surface must use the fall protection required for that location.

Full text (OSHRC public release)

                      UNITED STATES OF AMERICA
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v. DOCKET No. 03-2133
TRADESMEN GROUP, INC.,
Respondent.

Appearances: Paul Spanos, Esq.
Office of the Solicitor
U.S. Department of Labor
For Complainant.

                           John W. McGraw
                           Tradesmen Group, Inc.
                           Dublin, Ohio
                                  For Respondent

Before: Michael H. Schoenfeld, Administrative Law Judge

                               DECISION AND ORDER

Background and Procedural History
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.
Section 651-678; hereafter called the “Act”)and has been heard and decided pursuant to Subpart M
of the Rules of Procedure of the Occupational Safety and Health Review Commission (the
Commission), 29 C.F.R. § 2200.200 et seq..
On October 2, 2003 a Compliance Officer (“CO”) from the U.S. Occupational Safety and
Health Administration (“OSHA”) visited Respondent’s work site in Peninsula, Ohio and conducted
an inspection and investigation of Respondent. As a result of the inspection, OSHA issued a citation
to Respondent on October 16 2003 alleging two serious violations of construction safety standards
appearing in Title 29 of the Code of Federal Regulations (“CFR”). Respondent timely contested all
citations. A hearing was held in Cleveland, Ohio on April 6, 2003. No affected employees sought
party status.

Jurisdiction
Respondent at all times relevant to this action maintained a place of business in Dublin, Ohio
and other places where it was engaged in renovation and remodeling including historical restoration.
Engaging in such work constitutes construction activities. The Commission has held that
construction is in a class of activity which as a whole affects interstate commerce. Eric K. Ho, Ho
Ho Ho Express, Inc., Houston Fruitland, Inc., 20 BNA OSHC 1361, 2002 CCH OSHD ¶32,692,
(Nos. 98-1645 & 98-1646, 2003), citing, Clarence M. Jones d/b/a C. Jones Company, 11 BNA
OSHC 1529, 1983 CCH OSHD ¶26,516 (No. 77-3676, 1983).
Based on the above finding, I conclude that Respondent is an employer within the meaning
of section 3(5) of the Act. Accordingly, the Occupational Safety and Health Review Commission
(“the Commission”) has jurisdiction over the parties and the subject matter.

Discussion
The citation items allege that Respondent’s two employees at the site worked from an aerial
lift without utilizing proper fall protection and that the employees worked from or walked on a
working surface also without appropriate fall protection.1 OSHA proposed to assess a total penalty
of $3,000 for the two alleged violations.
Pursuant to the provisions of Rule 209, 29 C.F.R. § 2200.209, stipulations, testimony and
documentary evidence was taken at the hearing. Based upon that record, as well as the citation and
pleadings in the case, a decision and order was delivered from the bench. That portion of transcript
of the bench decision (Tr. 24 - 27) is attached as Appendix A and made a part of this Decision and
Order.

     1
     The items alleged violations of the standards at 29 C.F.R. §§1926.453(b)(2)(v) and 1926.501(b)(1),

respectively. Each was designated as “serious.”

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Having found the violations existed and that they were “serious” within the meaning of the
Act, items 1 and 2 of the citation issued to Respondent are AFFIRMED.
Upon consideration of the size, history and good faith of Respondent, with special emphasis
on the degree of concern for safety exhibited by Respondent’s safety program and training efforts,
a penalty of $500.00 for each of the two violations is found to be appropriate and is assessed.

                                        ORDER


   1. Item 1 of Citation 1, issued to Respondent on October 16, 2003, is AFFIRMED.
   A civil penalty of $500.00 is assessed therefor.


   2. Item 2, of Citation 1, issued to Respondent on October 16, 2003, is AFFIRMED.
   A civil penalty of $500.00 is assessed therefor.




                                                  SO ORDERED.




                                                  _/s/___________________________
                                                  Michael H. Schoenfeld
                                                  Judge, OSHRC

Dated: April 29, 2004
Washington, D.C.

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