Benson Associates

Plain-English summary

Benson Associates used a pump-jack scaffold and planks 13 to 14 feet above the ground while installing soffit and fascia on a Denver house. OSHA found that the scaffold legs lacked proper base plates and that the makeshift fall protection consisted of an Alumibench and boards attached with electrical wire at an inadequate height. The owner later testified that his crew had used a different scaffold, but the judge credited the compliance officer's contemporaneous notes of the owner's detailed telephone statement. The judge also found that a competent person did not inspect or supervise the scaffold because the owner used it despite the missing foundation and inadequate fall protection. All scaffold foundation, inspection, competent-person, and fall-protection items were affirmed, with penalties totaling $4,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(c)(2); 29 C.F.R. § 1926.451(f)(3); 29 C.F.R. § 1926.451(f)(7); 29 C.F.R. § 1926.451(g)(1)
• Outcome: All four serious scaffold violations were affirmed, with $4,500 in total penalties.
• Key point: Detailed contemporaneous statements and the scaffold's visible condition established use of an inadequately founded and guarded scaffold without competent-person oversight.

Full text (OSHRC public release)

Benson Associates, Docket No. 04-1283

SECRETARY OF LABOR,

Complainant ,

v.

OSHRC DOCKET NO. 04-1283

BENSON ASSOCIATES,

Respondent.

APPEARANCES:

For the Complainant:

Kim Prichard Flores, Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri

For the Respondent:  

William J. Benson, Benson Associates, Denver, Colorado

Before:             Administrative Law Judge: Sidney J. Goldstein

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, Benson Associates (Benson), at all times relevant to this action maintained a place of
business at 4561 Highline Place, Denver, Colorado, where it was engaged in construction, a class of
activity which as a whole affects interstate commerce. Clarence M. Jones d/b/a C. Jones Company, 11
BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No. 77-3676, 1983). Benson is, therefore, subject to the
requirements of the Act.

On June 6, 2004, an anonymous caller phoned OSHA’s after hours hotline, complaining that
workers at 4561 Highline Place were working unsafely on roofs and make-shift scaffolding (Tr. 6-7; Exh.
C-2). In response, on June 7, 2004, the Occupational Safety and Health Administration (OSHA) conducted
an inspection of the Highline Place work site . As a result of that inspection, Benson was issued a citation
alleging violations of 29 CFR §1926.451 of the Act. By filing a timely notice of contest Benson brought
this proceeding before the Occupational Safety and Health Review Commission (Commission). On
January 21, 2005, a hearing was held in Denver, Colorado. The parties have been provided with an
opportunity to submit briefs, and this matter is ready for decision.

FACTS

Compliance Officer (CO) Jack Seybert arrived at the Highline work site, a single family wood-
framed dwelling, on June 7, 2004 (Tr. 8). CO Seybert spoke with Scott Harding, the superintendent for
the general contractor, Exedra Construction, and Tom Lovell, owner of the framing company, All Decked
Out (Tr. 8-9). Tom Lovell told CO Seybert that he installed the cited scaffolding around the front of the
house on Friday, June 4, 2004 (Tr. 17). Lovell told Seybert that he put the scaffold up for another
subcontractor, Benson Associates, which used it over the weekend to install soffit and fascia on the house
(Tr. 9, 48).

The scaffolding was constructed with a pump jack and two 2 x 14 inch microlam planks (Tr. 14;
Exh. C-1, C-3, C-9). The pump jack consisted of two aluminum poles, a metal walking surface, and
triangular brackets to brace the poles, or legs, against the roof (Tr. 16). The height of the walking surface
could be adjusted by means of pumping devices connected to the poles (Tr. 16). The two additional
microlam planks were supported by the pump jack on the front end of the house, where the CO measured
their heights at between 13 and 14 feet (Tr. 30-31; C-8). The back ends of the planks were supported by
a 12-foot high roof towards the rear of the house (Tr. 14-15; Exh. C-1, C-6, C-9). When CO Seybert
arrived on the site on June 7, 2005, one leg of the pump jack rested partially on a 2 x 6 board (Tr. 17; Exh.
C-4). The second leg did not have any kind of base plate, and sat on the bare ground (Tr. 19; Exh. C-5).
CO Seybert testified that there were no marks or gouges in the earth to indicate that there had ever been
a base plate under that pole (Tr. 21; Exh. C-5).

Seybert contacted William Benson later on June 7, and conducted a telephone interview (Tr. 10;
Exh. C-7). At the hearing, Seybert testified that Benson told him he worked on the Highline site Saturday
and Sunday with two of his employees, Shane Beatty and Jeff Stoltz (Tr. 12). Benson told Seybert that he
worked from the planks on the pump jack (Tr. 21; Exh. C-7). Benson, however, told Seybert that he
provided fall protection for his employees by adding brackets and attaching an “Alumibench” onto the
pump jack approximately three feet above the walking surface (Tr. 33). The Alumibench is an attachment
for a pump jack that can be used as a working surface for holding tools and materials (Tr. 33). Benson also
told Seybert that employees working on the microlam planks were protected by 2 x 6s, which were attached
to the Alumibench with Romex (three strand electrical wire), and supported on the other end by the roof
(Tr. 34; Exh. C-7). Benson took the Alumibench and the 2 x 6s with him when he left the site (Exh. C-7).

According to CO Seybert, the cited scaffold should have had a top rail at 42 inches and a midrail
at 21 inches (Tr. 29, see also, §1926.451(g)(4)). Although an Alumibench is sometimes substituted for
a mid or top rail, in this case, the bench and 2 x 6s, both at three feet, did not meet the height requirements
set forth in the standard (Tr. 34-35). In addition, Seybert felt that the three strand electrical wire would not
withstand 200 pounds of downward or horizontal force (Tr. 39-40; see also, §1926.451(g)(4)).

At the hearing Benson stated that his employees never used the scaffold CO Seybert found at the
Highline work site (Tr. 54, 57). Benson admitted that he and two of his employees installed the soffit and
fascia for the dwelling at the Highline work site over the weekend of June 5-6, 2004 (Tr. 55-56). However,
Benson testified, on Saturday, June 5, 2004, he and his men dismantled the scaffold that Lovell had erected
on Friday and set up their own Aluma Pole scaffolding system (Tr. 58). After their work was completed,
they dismantled their scaffolding and took it away with them, leaving the pump jack and metal planking
leaning against a construction fence (Tr. 59). Benson could not explain why the scaffolding was back in
place on Monday June 7, 2004 (Tr. 59).

Benson called no witnesses to corroborate his story, stating that his men were working that day,
and so could not be in court to testify (Tr. 55).

Alleged Violations

Serious citation 1, item 1 alleges:

29 CFR 1926.451(c)(2): Supported scaffold poles, legs, posts, frames and uprights did not bear on base
plates, mud sills or other adequate firm foundation(s):

(a) Benson Associates, at 4561 Highline Place, Denver, CO 80222 : On June 5 and
6, 2004 the exposing employer did not ensure the legs of a pump jack scaffold
rested on an adequate firm foundation in that the pump jack scaffold legs did not
rest on base plates. This condition exposed the employees to a fall hazard of
approximately 13 feet.

The cited standard provides:

Supported scaffold poles, legs, posts, frames and uprights shall bear on base plates and mud
sills or other adequate firm foundation.

Discussion

In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp. , 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359, 1991).
Respondent does not question the applicability of the standard. That the scaffold poles on the Highline
Place site were not supported by adequate foundations on June 7, 2004 is clear from the evidence. The
only question before this judge is whether Benson’s employees used the cited scaffold, and so were
exposed to the cited hazard on June 5 and 6.

Taking into account both the demeanor and the substance of Mr. Benson and CO Seybert’s
testimony, this judge finds that the CO’s version of the events of June 5 and 6, 2004 is the more credible.
At the hearing Benson denied making the statements attributed to him by the CO. Specifically, he denied
telling Seybert that his employees used the existing pump jack and planking. Instead, Benson testified, he
removed the existing scaffold, and erected his own, leaving the pump jack stacked against a fence.
Benson’s story fails to explain why the pump jack scaffold was in place when Seybert arrived on the site
on Monday. Moreover, Benson failed to call any witnesses supporting his January 21, 2005 version of the
story, though he was in contact with both of the employees who were on the site with him on June 5 and
6, 2004. CO Seybert’s testimony conform to his contemporaneous notes of Benson’s telephonic statement.
The statement contains convincing details, including the dimensions of the Alumibench and the use of
Romex to attach the 2 x 6s, which attest to its veracity. There appears to be no reason for the CO to have
fabricated Benson’s statement.

Having discounted Benson’s version of events, this judge finds that the violation is established.

Penalty

CO Seybert testified that he considered the severity of the violation to be high (Tr. 22). Two
employees, in addition to Benson himself, were exposed to the cited hazard for the approximately 12-1/2
hours they worked at the site over the weekend (Tr. 21, 36). It is clear that should an employee fall 13 to
14 feet from a scaffold, he could sustain serious injury. After taking into account the Respondent’s small
size, the absence of any history of violations, and Respondent’s perceived lack of good faith (Tr. 23), the
Secretary’s proposed penalty of $1,500.00 is deemed appropriate for this violation and will be assessed.

Serious citation 1, item 2a alleges:

29 CFR 1926.451(f)(3): Scaffolds and scaffold components were not inspected for visible defects by a
competent person before each work shift, and after any occurrence which could affect a scaffold’s
structural integrity:

(a) Benson Associates, at 4561 Highline Place, Denver, CO 80222 : On June 5 and
6, 2004 the exposing employer did not ensure the fabricated frame scaffold had
been inspected for visible defects by a competent person before use. Without the
inspections the employees were exposed to scaffold fall hazards of approximately
13 and 14 feet.

The cited standard provides:

Scaffolds and scaffold components shall be inspected for visible defects by a competent
person before each work shift, and after any occurrence which could affect a scaffold’s
structural integrity.

Serious citation 1, item 2b alleges:

29 CFR 1926.451(f)(7): The scaffold was erected, moved, dismantled, or altered without the supervision
and direction of a competent person qualified in scaffold erection, moving dismantling, or alteration.

(a) Benson Associates, at 4561 Highline Place, Denver, CO 80222 : On June 5 and
6, 2004 the exposing employer did not ensure the fabricated frame scaffold was
erected, moved, dismantled, or altered with (sic) the supervision and direction of
a competent person qualified in scaffold erection, moving dismantling, or alteration.
The lack of direction by a competent person exposed the employees to fall hazards
of approximately 13 and 14 feet.

The cited standard provides:

Scaffolds shall be erected, moved, dismantled, or altered only under the supervision and
direction of a competent person qualified in scaffold erection, moving, dismantling or
alteration. . . .

A “competent person” is defined at §192.450(b) as:

. . .one who is capable of identifying existing and predictable hazards in the surroundings
or working conditions which are unsanitary, hazardous, or dangerous to employees, and
who has authorization to take prompt corrective measures to eliminate them.

Discussion

CO Seybert testified that, had a competent person overseen the erection of the cited scaffold and/or
inspected it before use, he would have recognized the hazardous nature of the scaffold and taken steps to
abate those hazards (Tr. 24). Specifically, Seybert stated that, had Benson been competent, he would not
have used the scaffold without base plates and fall protection (Tr. 25). At the hearing, Benson testified that
he is experienced and qualified to put up scaffolding (Tr. 54). However, Benson did not demonstrate a
familiarity with the scaffolding standards. Benson referenced a requirement that microlam mud sills be
attached with 90 penny nails (Tr. 42), and insisted that the standards require guard rails be able to
withstand 250 pounds of force (Tr. 49). Neither contention was supported by reference to Subpart L.

The Secretary has established this violation.

Penalty  

After taking into consideration the same factors discussed in citation 1, item 1, Seybert proposed
a combined penalty of $1,500.00 (Tr. 26-27). The proposed penalty is deemed appropriate and will be
assessed.

Serious citation 1, item 3 alleges:

29 CFR 1926.451(g)(1): Each employee on a scaffold 10 feet above a lower level was not protected from
falling to the lower level:

(a) Benson Associates, at 4561 Highline Place, Denver, CO 80222 : On June 5 and
6, 2004 the exposing employer did not ensure that guardrails or other suitable fall
protection was installed on the working platform of the fabricated frame scaffold.
This condition exposed the employees to a fall of approximately 13 and 14 feet.

The cited standard provides:

Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be
protected from falling to that lower level. Paragraphs (g)(1)(i) through (vii) of this section
establish the types of fall protection to be provided to the employees on each type of
scaffold.

Discussion & Penalty

The evidence establishes that the fall protection provided by Benson did not meet the criteria
established under paragraph (g). Taking into account the factors discussed under item 1, the Secretary’s
proposed a penalty of $1,500.00 is deemed appropriate and will be assessed.

ORDER

1. Citation 1, item 1, alleging violation of 29 CFR §1926.451(c)(2) is AFFIRMED, and a penalty of
   $1,500.00 is ASSESSED.

2. Citation 1, items 2a and 2b, alleging violations of 29 CFR §1910.451(f)(3) and (f)(7) are
   AFFIRMED, and a combined penalty of $1,500.00 is ASSESSED.

3. Citation 1, item 3, alleging violation of 29 CFR §1926.451(g)(1) is AFFIRMED, and a penalty
   of $1,500.00 is ASSESSED.

/s/

Sidney J. Goldstein

Judge, OSHRC

Dated: April 14, 2005