PICO Industries, Inc.

Plain-English summary

Two PICO employees worked on an unguarded steel fire-escape platform during a Washington, D.C., theater renovation. Part of the platform extended beyond a lower roof, creating an unobstructed 27-foot fall to the street, and photographs showed one worker with a foot extending over the edge. The employees had no guardrail, safety net, or personal fall-arrest system. PICO's foreman knew they were on the platform and admitted that fall protection should have been used. The judge also considered a prior fall-protection citation and a general contractor warning issued two months earlier. The serious violation was affirmed, and a $2,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.760(a)(1)
• Outcome: The serious steel-erection fall-protection citation was affirmed, with a $2,000 penalty.
• Key point: Actual supervisory knowledge and photographs showing work at an unguarded 27-foot edge established the violation.

Full text (OSHRC public release)

PICO industries, Inc., Docket No. 04-1419

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET No. 04-1419

PICO INDUSTRIES, INC.,

Respondent.

APPEARANCES:

Toye Olarinde, Esq.                                    Lewis Mulitz

Robert S. Wilson, Esq.                               President

U.S. Department of Labor                          Pico Industries, Inc.

Arlington, Virginia                                     Baltimore, Maryland

For the Complainant.                                  For the Respondent, pro se .

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”), and has been heard and decided pursuant to Subpart M
of the Commission’s Rules of Procedure, 29 U.S.C.§ 2200.200 et seq.

Pico Industries, Inc. (“Pico”) is a steel erection contractor. On August 11, 2004, a
Compliance Officer (“CO”) from the U.S. Occupational Safety and Health Administration
(“OSHA”) inspected Pico’s work site, a theater renovation located in Washington, D.C. As
a result of the inspection, OSHA issued a citation alleging a serious violation of a
construction safety standard, 29 C.F.R. § 1926.760 (a)(1). Pico timely contested the citation,
and a hearing was held in Washington, D.C. on December 7, 2004. No affected employees
sought party status. For the reasons below, I uphold the citation and the proposed penalty.

Jurisdiction

At all times relevant to this action, Pico, a steel construction contractor, maintained
a principal place of business at 611 W. Ostend Street in Baltimore, Maryland and a work site
located at 3303 14 th Street, N.W., in Washington, D.C. The work at the site involved the
renovation of the Tivoli Theater, and Pico was engaged in the erection of fire escapes. The
parties have stipulated that Pico was engaged in interstate commerce. I conclude that Pico
is an employer within the meaning of section 3(5) of the Act. Accordingly, the Commission
has jurisdiction over the parties and the subject matter. (Tr. 5; Exh. G-2).

Statement of Facts

On August 11, 2004, Pico was engaged in the construction of steel fire escape
platforms at the above-noted site in Washington, D.C. On that date, OSHA CO Mark Austin
drove to the site, parked his car, and walked around the perimeter of the site to see if there
were any safety violations. He saw two individuals standing on the platform of a fire escape
under construction. He photographed the activity, after which he met with a representative
of the general contractor to discuss what he had seen; the two then went to observe the
exposed employees and to have them leave the platform. ( Tr. 11-15).

The CO’s photographs reveal two individuals standing on a rectangular platform three
stories above the ground. One side of the platform is attached to the wall of the building, but
the other three sides of the platform are open with no guardrails in place. Abutting one side
of the platform (“Side 1”) is an articulating boom lift, or “cage,” occupied by a third
employee.

The side of the platform opposite the cage (“Side 2”) extends over a roof area that
is approximately 5 feet below the platform. However, this roof area underlies only a portion
of the remaining side of the platform (“Side 3”). Side 3 extends 18 to 24 inches beyond the
roof area. Accordingly, there is an unobstructed 27-foot drop to the street from the 18 to 24-inch-long stretch of the edge of Side 3, and overstepping the unguarded edge of that side
could have resulted in a 27-foot fall to the street below. (Tr. 13-21; Exh. G-1, photos 1
through 8). Indeed, two of the photographs depict an individual standing on the 2-foot edge
of Side 3 with his left foot actually extending over the edge. (Exh. G-1, photos 3 and 4).

The two individuals on the platform are Pico employees Omar Parada and Ambioris
Santana. Pico’s foreman, Khatchik Galladian, was aware that the two employees were on the
platform at the time of the alleged violation, and he admitted to the CO that the employees
should have had some type of fall protection. (Tr. 5-6, 29-30).

On June 11, 2004, Monarc Construction, Inc., the general contractor at the Tivoli site,
issued an “urgent memorandum” to Pico, citing it for the failure of its employees to use
harnesses when they were required to do so. A handwritten reply signed by Mr. Mulitz states:
“Our safety expert, Mr. Galladian, is taking all necessary steps for safety now.” (Exh. C-4).

On January 27, 2003, a Commission administrative law judge affirmed a citation
alleging two serious violations issued to Pico resulting from an OSHA inspection conducted
on June 24, 2002. Both violations related to fall protection, and one involved a supervisor
of Pico who was working on a platform lacking a guardrail. Pico Indus., Inc ., 20 BNA OSHC
1153 (No. 02-1146, 2003).

See also 2003 OSAHRC LEXIS 14.

Discussion

The cited standard, 29 C.F.R. § 1926.760 (a)(1) provides as follows:

Each employee engaged in a steel erection activity who is on a
walking/working surface with an unprotected side or edge more than 15 feet
(4.6 m) above a lower level shall be protected from fall hazards by guardrail
systems, safety net systems, personal fall arrest systems, positioning device
systems or fall restraint systems.

The citation alleges a violation of the above standard, as follows:

Southeast Side of Building - Iron workers were observed at the edge of an open sided
floor, 27 feet above the ground below, without the use of guardrails, safety nets, or
personal fall arrest system. The employees were grinding welds on an exterior fire
escape landing on the edge of the building’s exterior, on or about 8/11/04.

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, with the exercise of due diligence, could have known of the violative condition.
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 all four
elements in this case, as set out supra . First, employees were engaged in steel erection
activity (the construction of fire escapes), and they were on a platform with an edge more
than 15 feet above a lower level. Second, the platform did not have guardrails, and no safety
nets or personal fall arrest systems were in use. Third, Pico’s employees were working on the
platform. Fourth, Pico’s foreman was aware that employees of Respondent were on the
platform, and although he initially stated that there was no exposure to falls because of the
roof area under the platform, he admitted to the CO, upon viewing the employees on the
platform, that the employees should have had some type of fall protection. (Tr. 29). The
record therefore shows that Pico had actual knowledge of the violation of the standard. This
citation item is accordingly affirmed as a serious violation, as it is apparent that a fall from
a height of 27 feet could result in death or serious injury.

Penalty Assessment

The Secretary has proposed a penalty of $2,000.00 for this citation item. In assessing
penalties, the Commission must give due consideration to four criteria, that is, the gravity of
the violation and the employer’s size, history and good faith. See 29 U.S.C. § 666(j). The
gravity of the violation, usually the most significant factor, is determined by 1) the severity
of the injury that could result from the hazard, and 2) the probability that injury or illness
could occur. As noted above, the violation is properly classified as serious, as a fall from 27
feet to the street could result in death or serious injury. Probability is determined by a number
of factors, including employee proximity to the hazard. In this case, two Pico employees were
exposed to the hazard of falling from the edge of the platform, and two photographs show
one of the employees actually extending one foot over the edge of the platform. The
Secretary presented evidence that the gravity-based penalty in the amount of $5,000.00 was
reduced to $2,000.00 due to the small size of the company. However, no adjustment was
made for history because Pico had received a citation alleging two serious violations within
the previous three years. In addition, no adjustment was made for good faith in light of the
gravity of the violation. (Tr. 35-37). I also note, as to good faith, that the previous citation
alleged violations of fall protection standards and that the memo Monarc issued to Pico, two
months before the subject inspection, was for employees not wearing fall protection. I concur
with the Secretary that a penalty in the amount of $2,000.00 is warranted under the
circumstances of this case. A penalty of $2,000.00 is accordingly assessed.

ORDER

1. Item 1 of Serious Citation 1 is AFFIRMED, and a penalty of $2,000.00 is assessed.

/s/

William C. Cregar

Judge, OSHRC

Dated: February 17, 2005

Washington, D.C.