Thos. S. Byrne, Ltd.

Plain-English summary

Byrne employees used unguarded ladderway openings on the roof and third floor of a theater restoration project, with falls of about 13.5 feet possible. The judge affirmed the opening-protection item for those ladderways but dismissed an instance involving smaller floor holes because OSHA cited the wrong subsection. A second item was affirmed for a guarded second-floor ladderway that lacked a gate or offset, while overlapping instances for the unguarded openings were treated as duplicative. A warning-line and edge-protection item was vacated because the employees worked several feet from the marked edge and were not shown likely to enter the danger zone. The affirmed items carried total penalties of $1,750.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.501(b)(4)(i), 1926.502(b)(13), 1926.502(f)(1)(i), 1926.501(b)(1)
• Outcome: Two fall-protection items were partly affirmed with total penalties of $1,750, and the edge-protection item was vacated.
• Key point: OSHA had to cite the subsection matching the type of floor opening and could not impose duplicative liability for the same unguarded ladderway condition.

Full text (OSHRC public release)

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

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

SECRETARY OF LABOR,
Co mpla inant,

                            v.                                 OSHRC DOCKET NO. 05-1152

THOS S. BYRNE, LTD., and its successors,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Brian D uncan, Esq ., U.S. De partmen t of Labor, O ffice of the Solicitor, Dallas, Te xas

      For the Re spo nde nt:
               Mark Briggs, Esq., Stephens & Briggs, El Paso, Texas

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, Thomas S. Byrne, Ltd. (Byrne), at all times relevant to this action maintained a place
of business at the El Paso Plaza Theatre in El Paso, Texas, where it was engaged in the restoration of the
theater (Tr. 38; Exh. C-1). Byrne is an employer engaged in construction, a business affecting commerce
(Tr. 338-340), and is subject to the requirements of the Act. Clarence M. Jones d/b/a C. Jones Company,
11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No. 77-3676, 1983).
On April 14, 2005, the Occupational Safety and Health Administration (OSHA) responded to an
accident report originating at the El Paso Plaza Theatre worksite (Tr. 88-89). Between April 14 and April
18, 2005, OSHA conducted an inspection at the El Paso Plaza Theatre, which encompassed Byrne’s work
site (Tr. 89-90). As a result of that inspection, OSHA issued a citation alleging violations of OSHA fall
protection standards at 29 CFR §§1926.501 and 1926.502. By filing a timely notice of contest Byrne
brought this proceeding before the Occupational Safety and Health Review Commission (Commission).
On February 9, 2005, a hearing was held in El Paso, Texas. Respondent asked that no briefs be filed on
the issues; this matter is ready for disposition.
 Alleged Violation of §1926.501(b)(4)(i)
Serious citation 1, item 1 alleges:
29 CFR 1926.501(b)(4)(i): Each employee on walking/working surfaces was not protected from falling
through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest
systems, covers, or guardrail systems erected around such holes:

a) Thos. S. Byrne General Contractors, LTD @ 125 Pioneer Plaza (Plaza Theater), El Paso, TX; On
or about 4-14-05 the employer did not ensure that standard guardrails or other suitable fall
protection were provided for a ladderway hole that was 33" wide by 48" long. Employees working
on the rooftop of a three story building were exposed to the hazard of falling approximately 13.5'
to the concrete floor below.

b) Thos. S. Byrne General Contractors, LTD @ 125 Pioneer Plaza (Plaza Theater), El Paso, TX; On
or about 4-14-05 the employer did not ensure that standard guardrails or other suitable fall
protection were provided for a ladderway hole that was 33" wide by 48" long. Employees working
on the third floor of a three story building were exposed to the hazard of falling approximately 13.5'
to the concrete floor below.

c) Thos. S. Byrne General Contractors, LTD @ 125 Pioneer Plaza (Plaza Theater), El Paso, TX; On
or about 4-14-05 the employer did not ensure that standard guardrails or other suitable fall
protection were provided for hole varying from 4" to 24" in diameter. Employees working on the
first floor level platform of a three story building were exposed to the hazard of falling
approximately 6 feet or more to the concrete floor below.

Facts
OSHA Compliance Officer (CO) Gabriel Acosta photographed unguarded ladder ways on the
rooftop and the third floor of the El Paso Plaza Theatre (Tr. 166-72; Exh. C-12, C-13, photo 3; C-14). The
ladder way holes were approximately 3' x 3' in size and were 13'6" above the level below (Tr. 126, 168,
176). Byrne stipulates that Byrne crews built the cited ladder ways (Tr. 61).1
Angel Fiero, a construction foreman with Texas Far West Construction and Engineering, was on
the El Paso Plaza Theatre site on February 14, 2005 (Tr. 29, 63). Fiero’s crew was setting rebar for the
second concrete pour on the roof level (Tr. 36). Fiero testified that approximately six Byrne employees
were working on the roof on the day of the OSHA inspection, including Kyle Dies, a field engineer and
supervisor for Byrne (Tr. 46-48, 81; Stipulation No. 3). The Byrne crew was erecting guardrails on the
south side of the rooftop platform (Tr. 66, 69, 79, 82, 296, 315). Both Fiero and the Byrne employees used
the unguarded ladder way from the third floor to access and exit the roof level (Tr. 56, 82, 318-20; Exh.
C-12, C-13). Prior to the day of the inspection, employees used a guarded ladder on the opposite side of

          1
             W itnesses disagreed on the designation of the building levels on the worksite. For instance, Respondent
 includ ed a m ezza nine lev el. For purp oses o f clarity, the C O’s d esigna tions are used here.

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the building to access the roof level from the third floor (Tr. 67-68, 83-84, 299-300, 318). On February
14, 2005, Byrne cut a new ladder way to the rooftop, which the crews then began to use for roof access
(Tr. 52, 56, 67, 173; Exh. C-14). Only after CO Acosta arrived on the site did Byrne employees install
guardrails around the ladder way (Tr. 79, 297).
Acosta also photographed numerous holes ranging from 4 inches to 24 inches in width throughout
the worksite (Tr. 105, 125; Exh. C-2, C-3, C-7, C-8; see also, Tr. 39-42, testimony of Angel Fiero).
Specifically, Acosta stated, there was a hole measuring 2' x 10" next to a concrete pillar in the immediate
area where three Byrne employees, Fernando Villalobos, Heber Lopez and Luiz Flores, were patching
concrete. The employees were working on and around a ladder set up on a platform 20-30 feet above the
ground (Tr. 106-10, 127, 130, 133, 136, 152, 154, 272, 324; Exh. C-2, C-5, C-9, C-10; Stipulation Nos.
4, 5, 6). The ladder was set up approximately three feet from the concrete pillar (Tr. 128). Acosta
observed one employee standing within a foot of the hole (Tr. 129, 153). A series of similar holes were
located between the platform’s access area and the work area (Tr. 136, 146). The CO observed the three
employees working in the area for approximately five minutes (Tr. 132).
Villalobos testified he was aware of the hole by the column, and deliberately kept the ladder a foot
away from it because there was a possibility that the plywood could break (Tr. 273, 278-79). He did not
recognize the other holes pictured in Complainant’s exhibits, but admitted there could have been other
holes in the platform (Tr. 278). Walter Shane Korn, the Byrne superintendent who accompanied CO
Acosta on his inspection, testified that there were some holes in the floor that were repaired while Acosta
was still on site (Tr. 295).
Members of Byrne management were present at the El Paso work site and would walk the job area
nine to ten times a day (Tr. 156, 188). Angel Fiero testified that he had complained to Kyle Dies, a Byrne
supervisor and field engineer, about a dangerous hole in the walking surface on the north side of the theater
(Tr. 8, 42-44, Stipulation No. 4). The specific hole he complained about was covered, though he continued
to see holes throughout the work site (Tr. 45, 58-61).
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).

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The cited standard provides:

   Each employee on walking/working surfaces shall be protected from falling through holes
   (including skylights more than 6 feet (1.8 m) above lower levels, by personal fall arrest
   systems, covers, or guardrail systems erected around such holes.
   The ladder ways cited at item 1, instances a) and b) are clearly subject to the cited standard. The

small, 4" to 24" holes cited at instance c), however, should have been cited under subparagraph (b)(4)(ii),
which provides:
Each employee on a walking working surface shall be protected from tripping in or
stepping into or through holes (including skylights), by covers.
Because the cited standard is inapplicable to the small holes cited at instance c), and because
Complainant made no motion to amend the citation to conform to the evidence, instance c) is dismissed.
The evidence establishes that the hazardous unguarded ladder ways were created by Byrne. That
the ladder ways remained unguarded while Byrne employees performed other work on the rooftop was
known to Kyle Dies, a Byrne supervisor who was on the roof on the day of the inspection. Byrne
employees were in the zone of danger posed by the unguarded ladder ways as they worked, and as they
moved along their normal routes of ingress to and egress from their assigned workplaces. See, Kaspar
Electroplating Corp., 16 BNA OSHC 1517, 1993 CCH OSHD ¶30,303 (No. 86-0274, 1993). The
Secretary has proven the violation, and citation 1, item 1, instances a) and b) are affirmed.
Penalty
A gravity based penalty of $2,500.00 was proposed for this violation.
In determining the penalty the Commission is required to give due consideration to the size of the
employer, the gravity of the violation and the employer's good faith and history of previous violations. The
gravity of the offense is the principle factor to be considered. Nacirema Operating Co., 1 BNA OSHC
1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972). Gravity factors to be considered include: (1) the number
of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against
injury, if any; and (4) the degree of probability of occurrence of injury. Kus-Tum Builders, Inc., 10 BNA
OSHC 1049, 1981 CCH OSHD ¶25,738 (No. 76-2644, 1981).
CO Acosta testified that the violation was serious, in that an employee accidentally stepping
through an open ladder way could fall and suffer serious injuries, including broken bones, head injuries,
internal injuries and death (Tr. 157, 175). However, the CO believed that the probability of an accident
occurring was small (Tr. 160-61, 166, 177). While there were no alternative means of protection provided,
the evidence suggests that the rooftop ladder way had only recently been opened. There was no evidence

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that work was ongoing in the area of the third floor ladder way. It was unlikely that employees would
unknowingly back into a ladder way that was used only for access. Byrne is a large company; employing
27 employees on this worksite, and over 300 employees total, and so was not entitled to any adjustment
for size (Tr. 123-24, 158). Byrne cooperated fully with OSHA during the inspection and immediately
abated the violations. As a result the CO included a 25% reduction in the original gravity based penalty
(Tr. 159, 176).
Taking into account the low probability of an accident occurring, as well as the dismissal of
instance c), a penalty of $1,250.00 is deemed appropriate and will be assessed.
Alleged Violation of §1926.502(b)(13)
Serious citation 1, item 2a alleges:
29 CFR 1926.502(b)(13): When guardrail systems are used around holes which are used as points of access
(such as ladder ways), they shall be provided with a gate, or be so offset that a person cannot walk directly
into the hole.

a) Thos. S. Byrne General Contractors, LTD @ 125 Pioneer Plaza (Plaza Theater), El Paso, TX; On
or about 4-14-05 the employer did not ensure that an unprotected ladder way access point was
provided with a gate or that it was offset to prevent employee(s) from falling into the hole.
Employees working on rooftop of a three story building were exposed to the hazard of falling
approximately 13.5' to the concrete floor below.

b) Thos. S. Byrne General Contractors, LTD @ 125 Pioneer Plaza (Plaza Theater), El Paso, TX; On
or about 4-14-05 the employer did not ensure that an unprotected ladder way access point was
provided with a gate or that it was offset to prevent employee(s) from falling into the hole.
Employees working on the 3rd floor of a three story building were exposed to the hazard of falling
approximately 13.5' to the concrete floor below.

c) Thos. S. Byrne General Contractors, LTD @ 125 Pioneer Plaza (Plaza Theater), El Paso, TX; On
or about 4-14-05 the employer did not ensure that an unprotected ladder way access point was
provided with a gate or that it was offset to prevent employee(s) from falling into the hole.
Employees working on the 2nd floor of a three story building were exposed to the hazard of falling
approximately 13.5' to the concrete floor below.

Discussion
The cited standard provides:
When guardrail systems are used around holes which are used as points of access (such as
ladder ways), they shall be provided with a gate, or be so offset that a person cannot walk
directly into the hole.

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As discussed in item 1, instances a) and b) above, the ladder ways on the rooftop and third floor
were unguarded. The resulting hazard was addressed and affirmed as a violation of §1926.501(b)(4)(i) and
an appropriate penalty assessed. The Secretary’s citation of those same conditions under §1926.502(b)(13)
is, therefore, duplicative. Moreover, the provisions of §1926.502, which dictate specifications for
guardrails, are inapposite here where no guardrails were installed. Only instance c), therefore, will be
addressed here.
The Secretary has established that the second floor ladder way had guardrails on three sides, but
did not have a gate or offset on the fourth side to prevent employees from backing or sidestepping into the
hole (Tr. 171, 256; Exh. C-13, photo 4). Byrne employees used the inadequately guarded ladder way to
the second floor to access and exit the roof level (Tr. 56, 82, 318-20; Exh. C-12, C-13). The violation has
been established.
Penalty
The Secretary proposed a single penalty for items 2a and 2b. The determination of what constitutes
an appropriate penalty is within the sole discretion of the Review Commission. The grouping of penalties
is, likewise, within the Commission’s discretion. See, Halmar Corp. and Defoe Corp., a Joint Venture
(Halmar),18 BNA OSHC 1014, 1997 CCH OSHD ¶32,419, (No. 94-2043, 1997), citing, H.H. Hall
Constr. Co. (Hall), 10 BNA OSHC 1042, 1981 CCH OSHD ¶25,712 (No. 76-4765, 1981). The
violations described at items 2a and 2b are not closely related; a single action would not bring the
employer into compliance with the cited standards. There being no apparent reason for the grouping, a
separate penalty will be assessed.
For the reasons discussed above, the cited violation is “serious”. Only one of the three instances
cited is affirmed here. The probability of an accident occurring where a stairwell is guarded on three sides
is remote. A penalty of $500.00 will be assessed.
Alleged Violation of §1926.502(f)(1)(i)
Serious citation 1, item 2b alleges:
29 CFR 1926.502(f)(1)(i): When mechanical equipment is not being used, the warning line shall be erected
not less than 6 feet (1.8 m) from the roof edge:

or in the alternative;

29 CFR 1926.501(b)(1): Each employee on walking/working surface with an unprotected side or edge
which is 6 feet more above a lower level was not protected by the use of guardrail systems, safety net
systems, or personal fall arrest systems.

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Thos. S. Byrne General Contractors, LTD @ 125 Pioneer Plaza (Plaza Theater), El Paso, TX; On
or about 4-14-05 the employer did not ensure that standard guardrails or other suitable fall
protection were provided with and required to use adequate fall protection. A warning line (caution
tape) was placed 25"-32" from the leading edge. Employee(s) working on the first floor level
platform of a three story building were exposed to the hazard of falling from an elevation of 9.6" -
13.6" to ground level.

Facts
Prior to his entry onto the Byrne worksite, CO Acosta photographed three employees working on
a platform 9'6" above the adjacent level (Tr. 90, 94, 106-10, 132, 148, 178). The employees were grouting
nail holes in the poured concrete columns (Tr. 262-63). One of the employees was working from a ladder
(Tr. 91, 187). There were no guardrails on the edge of the platform, and there was only a strip of yellow
caution tape between them and the unguarded edge (Tr. 178, 184; Exh. C-2, C-3, C-9, C-10, C-11). The
employees were working between four and six feet from the uneven edge of the platform (Tr. 148, 179-80,
183, 202, 204, 207; Exh. C-6).
Discussion
The three employees grouting columns on the 9'6" work platform were working in a group on a flat
surface well away from an edge that was marked with warning tape. It does not appear that there was any
likelihood of them approaching the zone of danger posed by the edge of the platform. Item 2b is, therefore,
dismissed.
ORDER

1. Serious citation 1, item 1, alleging violation of 29 CFR §1926.501(b)(4)(i) is AFFIRMED, and
   a penalty of $1,250.00 is ASSESSED.

2. Serious citation 1, item 2a, alleging violation of 29 CFR §1926.502(b)(13) is AFFIRMED, and
   a penalty of $500.00 is ASSESSED.

3. Serious citation 1, item 2b, alleging violation of 29 CFR §1926.502(f)(1)(i) is VACATED.

                                                    /s/
                                                    Benjamin R. Loye
                                                    Judge, OSHRC
   

   Dated: April 6, 2006

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