B & M Construction
Three scaffold access and fall-protection items affirmed
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This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
B & M Construction performed asbestos removal around a boiler at a City of Lubbock power plant. OSHA found no access ladder, two unguarded openings in a walkway about 12 feet above the ground, and an unguarded I-beam used as a walkway. B & M argued that employees had not worked on the boiler because a labor dispute interrupted the project and the area was still being prepared. The ALJ credited the compliance officer's observations and an employee's statements that workers used the scaffold ends for access and worked in the cited areas. Those statements were admissions by an employee about matters within his work and were corroborated by equipment and completed asbestos-removal work in the area. The judge affirmed three serious items and assessed $720 for each, totaling $2,160; a fourth scaffold item withdrawn by the Secretary was vacated.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.451(a)(13), 1926.451(d)(3), 1926.500(b)(1), and 1926.500(d)(1)
- Outcome: Three serious access and fall-protection items were affirmed with $2,160 in penalties, and the withdrawn scaffold item was vacated.
- Key point: A compliance officer may rely on a worker's job-related statements when they are party admissions and are corroborated by physical conditions at the site.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM(202)606-5050
~s(202)60&5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 90-3089
B & M CONSTRUCTION
Respondent. )
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION .
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on July ir 1993. The decision of the Judge
will become a final order of the Commission on August 9, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secreta on or before
July 28, 1B93 in order to ermit sufficient time for its review. z ee
Commission Rule 91, 29 6 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: July 8, 1993
DOCKET NO. 90-3089
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10
James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘&ite 501
Griffin & Youn Streets
Dallas, TX 752 tf2
Mr. Bill Bowin
B & M Construction
830 Majestic
Houston, TX 77020
E. Carter Botkin
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791
00110408853 : 06
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
ROOM 7Bl1, FEDERAL BUILDING
1100 COMMERCE
DALLAS, TEXAS 75242~Oi91
PHONE: FAX.
. COM(214)767-5271 COM (214) 76-7-3350
FE 729-5271 m 729-0350
..
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC DOCKET NO. 90-3089
B & M BUILDERS COMPANY, d/b/a
B & M CONSTRUCTION,
..
Respondent. ..
..
APPEARANCES:
Margaret Terry, Esquire Bill Bowlin
Dallas, Texas Houston, Texas
For the Complainant. For the Respondent, pro se.
Before: Administrative Law Judge E. Carter Botkin
DECISION AND ORDER
This is a proceeding brought before the Occupational Safety and Health Review
Commission (“the Commission”) pursuant to section 10 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 8 651 et seq. (“the Act”).
On July 11, 1990, the Occupational Safety and Health Administration (“OSHA”)
conducted an inspection of the boiler area of a power plant owned by the City of Lubbock,
Texas, where Respondent (“B & M”) was engaged in asbestos removal. As a result of the
inspection, B & M was issued a serious citation with four items alleging violations of 29
C.F.R. $8 1926.45 l(a)( 13), 1926.45 l(d)(3), 1926SOO(b)( 1) and 1926.500(d)(l), respectively.
B & M contested the citation, and a hearing was held on May 10, 1991.l
‘The Secretary withdrew item 2 at the beginning of the hearing.
2
Backmound
The record shows that a previous inspection focusing on the asbestos removal
aspects of the project had occurred on July 2, 1990, and that the subject inspection, which
addressed only the scaffolding at the site, was the result of a referral pursuant to the July
2 inspection. 2 The record further shows the power plant was not in operation at the time
of the inspection, and that the boiler area was in a building containing four boilers, two
concrete pits, a trailer and a cooling tower; C-8 is a rough sketch of the building and its
contents. Finally, the record shows that the only scaffolding inspected on July 11 was that
around Boiler No. 6, indicated with a “B” on C-8.
The Evidence
Jack Haning, the OSHA compliance officer (“CO”) who conducted the inspection,
has over 15 years experience with OSHA. He testified he met with Mr. Mendoza, B & M’s
job superintendent, and that after donning protective equipment he and an employee
Mendoza directed to accompany him entered the asbestos containment around Boiler No.
6.3 Haning saw no ladder or other safe means to access the boiler other than the
scaffolding shown in C-1-2, and the employee told him workers had been using the scaffold
ends to get up to the boiler to perform asbestos removal. Haning and the employee went
to the level where work had been done, which was about 12 feet from the ground, where
Haning saw two unguarded openings in the walkway around the boiler and an unguarded
I-beam along the side of the boiler that served as a walkway. Haning identified C-6 as a
photo of the I-beam and C-4-5 as photos of the openings, and noted that the employee with
him, whose foot appears in C-5, indicated he and others had been working in these areas.
Haning further noted that the opening in C-4 was also shown in the lower left comer of C-l.
(Tr. M-17; 21-36; 4-O-45;48-55; 81; 87; 91-97).
Haning said all the cited conditions represented serious fall hazards which were
exacerbated by the protective equipment required for asbestos removal and by the ax,
“B & M was apparently not cited as a result of the July 2 inspection.
3Haning did not recall the employee’s name. (Tr. 26-27; 81).
3
buckets and crates he saw on the ground, on which employees could have fallen; workers
could also have hit boiler or scaffold parts or the valve in C-7. Haning also said the only
persons who entered the containment when he was there were the employee and himself,
but that he concluded workers had been exposed to the cited conditions based on what the
employee told him and on his own observations; there were showers and protective
equipment in the containment and work materials in the area, such as the bucket in C-9, and
the boiler looked as if it had been scrubbed clean. Haning noted Mendoza indicated there
had been problems at the site and that he had replaced another supervisor, but that he did
not tell him Boiler No. 6 was in a preparatory stage and that no removal had occurred there
or that the missing items were being used in another containment; Mendoza did say there
was work to do on another boiler, marked as “C” on C-8, before removal could take place
there, and that the crew was engaged in redistributing the load in the disposal trailer.4 (Tr.
25-26; 34-39; 45-47; 53-56; 68-73; 77-81; 87; 92-98).
Bill Bowlin, president and co-owner of B & M, testified the company has been in
business since 1985, that its only business is asbestos removal and insulation installation, and
that it is licensed to perform asbestos removal by the Texas Department of Health. He
further testified that the subject job, which began on May 2 and involved removing asbestos
in different areas throughout the building, required numerous B & M employees but that
due to a labor dispute the job superintendent and almost all the employees abandoned the
site on June 23; the project was secured. by posting several employees as guards, but no
more removal work was done until July 5, when a new crew began at the site under Richard
Mendoza, a newly-hired superintendent. 5 Bowlin said Mendoza’s priorities were to clean ,
up, repair the containments, finish the turbine area, redistribute the load in the trailer and
complete the preparation of Boiler No . 6 . Bowlin also said no removal had taken place on
Boiler No. 6 at the time of the inspection because its preparation was not yet complete, but
4Haning saw the crew working in and around the trailer; they were wearing protective equipment and handling
bags with asbestos warning labels on them. (Tr. 69; 76-78; 91).
51n support of his testimony, Bowlin presented R-4, R-9 and R-12, copies of the employee time records for
these periods. (Tr. 141-48; 159-63; X6-68;
. 199-210).
4
that employees could have used the scaffold to repair the boiler’s containment. (Tr. 114-16;
141; 151-58; 163-65; 168-72; 190-96; 210-18).
Bowlin identified R-l as the employee safety manual in effect during 1990, and R-10
and R-5 as the asbestos supervisor licenses of Mendoza and Charles Garcia, the previous
job superintendent. He said the manual is provided to all new hires, that it was provided
to Mendoza, and that it addresses ladder and scaffolding safety; he acknowledged the hazard
of the cited conditions, but said Mendoza was very experienced and knew better than to
allow work under such conditions. Bowlin noted Garcia advised him prior to leaving that
everything at the site was in order, and that Phillip Hoot, B & M’s project manager, had
inspected the project and made oral reports of its progress; based on those reports, progress
at the site was satisfactory until June 23. Bowlin further noted he himself had been to the
site twice before June 23, when there was no activity in the Boiler No. 6 area, and that
according to Mendoza, who still works for the company, the cited deficiencies were corrected
before removal work occurred in that area. (Tr. 119-26; 148-50; 164-65; 16871; 174-82;
185-91; 196; 199; 203-04; 211-12; 215-21; 230-31).
Discussion
The subject standards provide as follows:
1926.451(a)( 13) - An access ladder or equivalent safe access shall be provided.
1926.500(b)(l) - Fl oor openings shall be guarded by a standard railing and
toeboards or cover....
1926.500(d)(l) - Every open-sided floor or platform 6 feet or more above
adjacent floor or ground level shall be guarded by a standard railing, or the
equivalent ... on all open sides....
B & M does not dispute that the conditions described by the CO existed at the site,
or that the conditions represented serious violations of the standards set out above. It
contends, rather, that no employees were exposed to the conditions based on Bowlin's
testimony about the abandonment of the site and the preparatory status of Boiler No. 6 at
the time of the inspection.
In addition to Bowlin’s testimony, I B & M proffered several affidavits in support of
its contention. For reasons apparent on the record, a ruling on the admissibility of the
affidavits was reserved and the parties were invited to argue this matter in post-hearing
5
submissions. The Secretary did so; B & M did not. I find the Secretary’s reasoning
completely persuasive; therefore, R-2, R-5, R-7, R-8 and R-l 1 are not received into
evidence?
Based on the foregoing, the only evidence to be considered in deciding the issue of
employee exposure is the testimony of Bowlin and the CO. While Bowlin testified no
removal work had taken place on Boiler No. 6 before the inspection, he himself admitted
employees could have used the scaffold to repair the containment around that boiler.
Moreover, it is clear Bowlin had no personal knowledge of the state of the boiler at that
time since his only visits to the site were before any activity was taking place in that area.
The CO’s testimony, on the other hand, was based on his actual observation of the boiler
and on the statements of the employee Mendoza directed to accompany him.
In its post-hearing brief, B & M attacked the hearsay nature of what the employee
told the CO during his inspection of the Boiler No. 6 area. B & M has misread and/or
misinterpreted the hearsay provisions of the Federal Rules of Evidence. Rule 801(d)(2)
defines a statement which is offered against a party and which was made “by the party’s
agent or servant concerning a matter within the scope of the agency or employment, made
during the existence of the relationship,” as an admission by a party-opponent and not
hearsay. Clearly, the statements of the employee, B & M’s representative, are admissions
of a party-opponent and not hearsay; however, the weight to be given those statements
depends upon their reliability and whether they are rebutted by other evidence. See Regina
Consm Co., 15 BNA OSHC 1044, 1047-49, 1991 CCH OSHD lI 29,354, pp. 39,467.69 (No.
87-1309, 1991).
6Despite the foregoing, I have looked carefully at the affidavits to determine what weight they would have been
given had they been received into evidence. In this regard, I note that except for R-11 the affidavits are largely
irrelevant, particularly since the Secretary does not dispute B & M’s assertion that the site was abandoned.
In R-11, Mendoza states he told the CO the missing scaffold parts “were being utilized in the active
containments, since the containment at Boiler No. 6 was only in the prep stage.” This statement is not
admissible as an admission of a party-opponent, as are the statements of the employee who accompanied the
CO, discussed below. However, even if R-11 were admitted it would be given very little weight based on my
findings in@ and on Mendoza’s failure to testify; in this regard, I note Mendoza still works for B & M and
could have testified at the company’s behest.
I
6
The CO testified the employee told him he and other workers had used the ends of
the scaffolding to get up to the boiler and that they had worked in the cited areas. The
CO’s testimony was credible and unequivocal, and the trustworthiness of the employee’s
statements is established by the CO’s own observation of materials and equipment in the
area as well as the asbestos removal that had occurred. Although B & M disputes this
evidence the testimony of Bowlin does not refute it, since, as noted above, he had no
personal knowledge of the status of the boiler. Bowlin’s testimony about Mendoza’s
experience and what he, Garcia and Hoot told him likewise does not refute the Secretary’s
evidence; the statements of Garcia and Hoot address the status of the site before June 23,
and any statements Mendoza may have made to Bowlin indicating no work occurred on the
boiler are simply not credible, notwithstanding his experience, in light of the CO’s
unequivocal testimony and the fact Mendoza did not testify.
Based on the foregoing, it can only be concluded that B & M employees were, in fact,
exposed to the cited conditions and that the Secretary has met his burden of proof in regard
to all three of the contested items. These items are accordingly affirmed as serious
violations, and after giving due consideration to the size, history and good faith of the
employer, as well as to the gravity of the violations, a penalty of $720.00 is assessed for each
item.
Conclusions of Law
1. Respondent, B & M Builders Company, d/b/a B & M Construction, is engaged
in a business affecting commerce and has employees within the meaning of section 3(5) of
the Act. The Commission has jurisdiction of the parties and of the subject matter of the
proceeding.
2 Respondent was in serious violation of 29 C.F.R. 08 1926.451(a)(13),
1926Sw(b)(l) and 1926SOO(d)( 1).
3. Respondent was not in violation of 29 C.F.R. 9 1926.451(d)(3).
7
Order
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED
. that:
1. Items 1, 3 and 4 of citation number 1 are AFFIRMED as serious violations, and
a penalty of $720.00 is assessed for each item.
2. Item 2 of citation number 1 is VACATED.
E. Carter Botkin
Administrative Law Judge
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