Caretti, Inc.

Plain-English summary

Caretti was a masonry contractor at a Pennsylvania prison project where OSHA found a stack of blocks about 11 to 12 feet high that was not tapered above six feet. The judge allowed OSHA to correct a typographical error in the cited standard because the factual allegation was unchanged and Caretti had notice of the charge. The noncompliant stack was in an area where Caretti had completed its work, no employees were present, and the stack could not be seen from the company trailer or active work areas. Because employee access was not reasonably predictable and Caretti lacked actual or constructive knowledge during the short time after delivery, the stacking item was vacated. The order also vacated a separate fall-protection item without further discussion.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.250(b)(7); 29 C.F.R. § 1926.501(b)(1)
• Outcome: Both serious citation items were vacated.
• Key point: A supplier's improperly placed material stack did not establish employer liability where employees were not expected in the area and supervisors had no reasonable opportunity to discover it.

Full text (OSHRC public release)

Caretti, Inc., Docket No. 04-0918

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 04-0918

CARETTI, INC.,

Respondent.

APPEARANCES:

Theresa C. Timlin, Esq.                                                Thomas S. Beckley, Esq.

U.S. Department of Labor                                            Beckley & Madden

Philadelphia, Pennsylvania                                           Harrisburg, Pennsylvania

For the Complainant.                                                    For the Respondent.

BEFORE:         Administrative Law Judge William C. Cregar

DECISION AND ORDER

This matter is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-678 (“the Act”). Caretti, Inc. (“Caretti”) is a masonry contractor. On April 20, 2004,
a compliance officer (“CO”) of the U.S. Occupational Safety and Health Administration (“OSHA”)
inspected Caretti’s work site, the Centre County Prison in Bellefonte, Pennsylvania. As a result of
the inspection, OSHA issued a citation alleging a serious violation of a construction safety standard,
29 C.F.R. § 1926.250(b)(7), and proposing a penalty of $1,275.00.

Caretti timely contested the
citation, and a hearing was held in Harrisburg, Pennsylvania on November 30, 2004. The parties
submitted post-hearing briefs. No affected employees sought party status. For the reasons below, I
dismiss the citation.

Motion to Dismiss

At the hearing, Respondent moved to dismiss Item 1 of the citation, which alleged a violation
of 29 C.F.R. § 1926.250(a)(7). There is no such standard. At the hearing, I denied Respondent’s
motion to dismiss the citation and complaint and granted the Secretary’s motion to amend to charge
a violation of the standard found at 29 C.F.R. § 1926.250(b)(7). Respondent has renewed its motion.
For the following reasons, I affirm the rulings I made at the hearing.

Rule 15(a) of the Federal Rules of Civil Procedure allows amendments to pleadings by leave
of court, as follows: “...leave shall be freely given when justice so requires.”

The Commission has
permitted amendments to citations and complaints where the amendment merely changes the citation
1) to reflect the true situation; and 2) the amendment does not prejudice the employer by changing
the factual bases for the citation. Secretary v. Arco Chemical Co. , 921 F.2d 484, 488 (3 rd Cir. 1990);
Morrison-Knudsen Co./Yonkers Contracting Co., A Joint Venture , 16 BNA OSHC 1105, 1112-14
(No. 88-572, 1993).

First, the underlying factual basis for the citation is unchanged by the amendment. The
citation reads as follows: “When masonry blocks were stacked higher than 6 feet, the stack was not
tapered back one-half block per tier above 6-foot level: (a) South side of Centre County Prison, 700
Rishel Hill Road, Bellefonte, Pennsylvania - Eight inch concrete blocks were not properly stacked
to 11 feet 6 inches, on or about April 20, 2004.” The standard describing this situation is found at
29 C.F.R. § 1926.250(b)(7). It provides: “When masonry blocks are stacked higher than 6 feet, the
stack shall be tapered back one-half bock per tier above the 6-foot level.” The similarity of the
language in the citation and the correct standard establish that the citation contained a typographical
error. Accordingly, the amendment merely changes the citation to reflect the correct applicable
standard.

Second, Counsel for Respondent admitted that Respondent had notice of what violation it
was charged with, despite the incorrect citation. (Tr. 9). Accordingly, I conclude that Respondent
suffered no prejudice as a result of the typographical error.

Jurisdiction

Respondent is a masonry contractor with its principal place of business in Camp Hill,
Pennsylvania. (Tr. 64). At all relevant times herein, Respondent engaged in interstate commerce.
I conclude that Respondent is an employer within the meaning of section 3(5) of the Act and that the
Commission has jurisdiction over the parties and the subject matter of this proceeding.

Statement of Facts

In April 2004, Caretti was the masonry contractor on the Centre County Prison site (“site”)
located in Delfon, Centre County, Pennsylvania. It contracted with York Building Products (“York”)
to supply and deliver masonry blocks to the project. Respondent’s foreman, Chris Spease, would call
York to place an order and York would deliver the blocks to the project at night or very early in the
morning prior to the arrival of Respondent’s employees at the site. York normally delivered the
blocks to Area “C” or “D” of the project and stacked the blocks itself. Caretti employees would use
the blocks usually within four to five hours after delivery. (Tr. 71-72, 80-83).

On April 20, 2004, Thomas Neff, an OSHA CO, arrived at the site at approximately 9:00
a.m. He met with Mark Stone, a representative of the general contractor, R.H. Reynolds. After a brief
opening conference, they conducted a walk-around inspection of the site. At 9:15 a.m., CO Neff
observed a masonry block stacked above 6 feet that was not “tapered back.” The block was located
in Area A, where no one was working; Caretti’s employees were working in Areas C and D. The
stack in which the block had been placed was located 100 yards from the road leading from the
employee parking lot to the job site and 30 to 40 yards from the employee parking lot itself. Mr.
Stone called Mr. Spease, who at that time was working in Respondent’s trailer. The stack could not
be observed from the Caretti trailer or from Areas C and D. After leaving the trailer to meet CO Neff
and Mr. Stone, Mr. Spease ordered Caretti employees to remove the block. The employees, using
a forklift, removed the block 15 to 20 minutes later. (Tr. 5, 20-24, 29, 89-90, 93-96; Exhs. G-1, R-1).

CO Neff measured the block with a 25-foot pocket tape measure and found it to be 11 feet
high. Mr. Spease admitted that the block was stacked about 12 feet high. CO Neff also made a
videotape of the block. (Tr. 27; Exh. G-1).

Discussion

The cited standard, 29 C.F.R. § 1926.250 (b)(7), provides as follows:

When masonry blocks are stacked higher than 6 feet, the stack shall be tapered back
one-half per tier above the 6-foot level.

To establish a violation of a standard, the Secretary must show by a preponderance of
evidence that: 1) the cited standard applies; 2) the standard was not met; 3) employees had access
to the violative condition; and 4) the employer had actual knowledge of the violative condition or
could have known of the violative condition with the exercise of due diligence. Astra
Pharmaceutical Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in part, remanded in
part , 681 F.2d 69 (1 st Cir. 1982).

The Secretary has demonstrated that the cited standard applies to the cited block, in that it
was stacked higher than 6 feet and was not tapered back as required. That the standard was not met
is demonstrated by the testimony of CO Neff, the admission by Mr. Spease, and the videotape of the
stacked block.

However, Complainant has not demonstrated that Caretti employees had access to the
violative condition. Under the circumstances of this case, Complainant must demonstrate that it was
“reasonably predictable” that Caretti employees would have been within the “zone of danger.” See
Gilles and Cotting , Inc ., 3 BNA OSHC 2002, 2003 (No. 504, 1976). Work had been completed in
Area A, and there is no evidence that any Caretti employee worked in that area, took a break in that
area, or used it for ingress and egress.

In addition, the Secretary has failed to demonstrate actual or constructive knowledge of the
violation. The normal practice was for Caretti employees, within four five hours of the delivery of
a stack of blocks, to remove the blocks from the stack by using a forklift truck and to then place them
on a scaffold. The subject stack was delivered by York sometime before Caretti employees, including
Caretti’s foreman, arrived on the scene. The stack was not placed in Area C or Area D, where
employees were working, but in Area A; as noted above, Caretti had finished working in Area A,
and it was accordingly a location where a Caretti supervisor would not have expected the stack to
be placed. The stack was not visible either from the Caretti trailer or from the areas where Caretti
employees were working. Generally, four or five hours elapsed from the time a stack was delivered
until the time Caretti employees would visit the stack. The 9:15 inspection by CO Neff fell within
this four-to-five hour time frame. Thus, Caretti had only about two hours to conduct an inspection
of an area where none of its employees was working and to discover the violation. Under these
circumstances, it is unreasonable to expect Caretti to have been aware of the existence of the
improperly-stacked blocks. Therefore, there is no evidence that any Caretti supervisors were aware,
or in the normal course of work should have been aware, that the masonry blocks were improperly
stacked. This item is consequently vacated.

ORDER

1. Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.250(b)(7), is
VACATED.

2. Item 2 of Serious Citation 1, alleging a violation of 29 C.F.R. § 1926.501(b)(1), is
VACATED.

/s/

William C. Cregar

Judge, OSHRC

Dated: June 30, 2005

Washington, D.C.