Harris Masonry, Inc. (ALJ decision, March 10, 1993)

Plain-English summary

Harris Masonry performed masonry work at a Pennsylvania middle school construction site. OSHA observed three employees on scaffolds about 15 feet high without guardrails. The company argued that the employees were erecting the scaffolds, but the judge credited evidence that the scaffold height did not change and that masonry materials were already present. The judge found that the employees had access to the unguarded edges, affirmed the violation as serious, and assessed a $625 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(d)(10)
• Outcome: Serious scaffold guardrail violation affirmed with a $625 penalty
• Key point: Employees working within a few feet of unguarded scaffold edges were exposed to the fall hazard even without proof that they stood at the edge.

Full text (OSHRC public release)

\b
utJllED STATES OF AMERICA

I OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 12413

FAX
CCM (202!f:l-l008 ns (202,621~lCC8
SECRETARY
OF LABOR
Complainant,
v. OSHRC DOCKET’
NO. 92-1071
HARRIS MASONRY, INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINKIRATIV’E LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on February 8, 1993. The decision of the Judge will become a final order of the Commission on March 10, 1993 unless a Commission member directs review of the decision on or before that date. AlW PARTY DEWRING 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 Secretary on or beti March 1, P993 in order to ermit sufficxent time for its review. See Commission Rule 91, 29 cp.F.R. 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupr! t ion al Safety and Health
Review Commission
1825 K St. NW., Room 401
Washington, D.C. 200064246

Petitioning parties shall alu) mail a copy to:
Danrci J. Vlick, Esq.
Counwl for Regional Trial Liti ation
OfTice 4 the Solicitor, U.S. DOB
RtM)rn WKM
LU) Cmwtution Avenue, N.W.
Wa~hmpn. D.C. 20210

If a Direction for Review 13 IWCJ by the Commission, then the Counsel for Regional Trial Litigation ~111represent the Department of Labor. Any party havmg questions about IC~ICWrights may contact the Commission’s Executive Secretary or call (202) 6W~VO.
FOR THE COMMISSION

Date: February 8, 1993
DOCKET NO. 924071
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re *maI Trial Liti ation
Office of the So%‘citor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ‘onai Solicitor
O&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market J treet
Philadelphia, PA 19104

Henry G. Beamer, Esquire
Attorney for Respondent Harris
Masonry, Inc.
1330 Grant Buildin
Pittsburgh, PA 152 f 9 2203

John H. Frye, III
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, DC 20006 1246

00113343057:03
:t
’ UNITED STATES OF AMERICA
. OCCUPATIONAL SAFETY AND HEALTH REVIEW COhdMiSSl()N
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC 20006-1246

FAX:
COM m21-

.
FTS6344NX3
.
..

LYNN MARTIN, SECRETARY OF LABOR,
.
UNITED STATES DEPARTMENT OF LABOR
;
..
Complainant,
..
..
v. ..
.. Docket No. 92-1071
HARRIS MASONRY INC.
..
and its successors,

Respondent.

Appearances:
.
Michael H. Rosenthal, Esquire
Henry G. Beamer, Esquire
Office of the Solicitor
Attorney at Law
United States Department of Labor
1330 Grant Building
Philadelphia, Pennsylvania
Pittsburgh, PA

For Complainant
For Respondent

BEFORE: Administrative Law Judge John H Frye, III

QEcISION AND ORDER

I. INTRODUCI’ION

This case results from an inspection of Respondent’s worksite at the North East Middle School in North East, Pennsytvania, which occurred on January 28, 1992. As a result of that inspection, the Secretary alleged that Respondent
violated one construction
safety standard: 29 C.F.R. 1926.45 l(d)( 1). Respondent filed a notice of contest. A
complaint d answer followed. Trial of the case was in Pittsburgh on September 30, 19920 II 0 FINDINGS OF FACIY
1 l Respondent, Harris Masonry, hc., is a corporation with a principle
place of business at 420 Greentree Road, Pittsburgh, Pennsylvania 15220. (Admitted in Anger).
2 Respondent uses tools, equipment, machinery, materials, goods, and supplies which originated in whole or in part from locations outside the State of Pennsybania. Specifically respondent uses Cosmos II, Portland Cement which is manufactured in Kentucky (Tr. 20).
30 Respondent does business in Ohio as well as PennsyW (T’r. 20).
40 On January 28, 1992, respondent maintained a worksite at North
East Middle School, 1901 Freeport Rd., North East, Pennsylvania
16428 (Admitted in Answer).
5. Respondent was engaged in masonry work at the North East IMddk .
School job site (Admitted in Answer, Tr. 7).
6 Respondent had approximately 27 employees at the worksite (Admitted in Aer).
7a Respondent had approximately 100 employees for all its business activities (admitted in Answer, Tr. 19).
80 On January 28, 1992,Beverly Braughier, a Compliance Officer with
the Occupational Safety and Health Administratio 1 (“Inspector Braughler”), inspected respondent’s worksite (Tr. 6, 9).
9a Inspector Braughler saw tubu ar welded frame scaffolds on the north
and south sides of the gymnawum
(Tr. 6).

100 There arc NO employees on the south scaffold and one on the north. (Tr. 7).
110 Inspector Braughler observed the employee on the north side for about 10 minutes and the employees on the south side for approximately
15 minutes

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&fore ~&wing with her ~~ctbn (Tr. 7). The employees were not installing
guardrails during this time he
(‘I?. 13-14).
12 Ins-or Braughler later determined that all three workers were
employed by Harris Masonry (Tr. 14).
13a The scaffolds on which respondent’s employees worked were approximately 15 feet above the ground. (Tr. 7).
14a At the time of Inspector Braughler’s initial observations, neither of the scaffolds had a guardrail system to protect the employees from a fall hazard (Tr. 8-9, 1143).
15l On the north side the employee was approximately four feet from
the unguarded edge of the scaffold (Tr. 12).
160 On the south side, an employee tending a mortar pan was approximately two feet from the unguarded edge of the scaffold (Tr. 12).
170 Inspector Braughler observed guardrails being installed on the north side about forty-five minutes after her initial observations (Tr. 15, 49).
.
18 Inspector Braughler observed the scaffold on the south side of the l

gymnasium a second time about an hour to an hour and a half tier
her initial observations (Tr. 86).
. 190 Inspector Braughler did not observe a change in the height of the scaffolding during her inspection. The scaffold on the north and south side were each three bucks (15 feet) high the entire time (Tr. 7, 49, 85-86).
20 l The absence of appropriate guardrails created a fall hazard of 15
feet (Tr. 16).
21 l The rrsffolds were in plain view (Tr. 17). Inspector Braughler could see that there was a violation from a hundred yards away. Therefore
respondent could have and should have known of the hazard created by the absence of the guardrails.
22 If an employee fell off respondent’s scaffold he could suffer from broken bones, abrasions or contusions (Tr. 17).
 To establir;h
a violation of a standard, complainant
must show that “(1) the
standard aww to &e cited condition; (2) the employer violated the terms of the standard; (3) its employees were exposed or had access to the violative conditions; and (4) the employer had actual or constructive knowledge of the violation.” W consmctiotz Co., 14 BNA OSHC 1784, 1788 (No. 864139, 1992).
There is no dispute with regard to the applicability of 29 C.F.R. 0 1926.45l(d)( 10)
to the scaffolds in use at Respondent’s worksite. When Inspector Braughler inspected the worksite she saw a new gymnasium under construction. Inspector Braughler’s unrebutted testimony established that tubular welded frame scaffolding with a height of 15 feet was in place on the north and south sides of the gym. She observed two employees on the south scaffold and one on the north.’ Inspector Braughler later determined that all three workers were employed by Harris Masonry (Tr. 6, 7, 12-14).
When initially observed by Inspector Braughler neither the north or south
scaffolds had a guardrail system to protect the employees from a fall hazard (Tr. 8-9, ll- 13). The Secretary argues that Respondent was thus in violation of the standard. Respondent’s sole defense developed at trial was that the employees on the sc&olds were not engaged in masonry work but instead were engaged in scaffold erection. However, Inspector Braughler observed the employee on the north side for about ten minutes and the employees on the south side for approximately fifteen minutes before continuing with her inspection (Tr. 7). No erection activity was happening at that time.
Inspector Braughler again observed the north scaffold about forty-five minutes (Tr. 49) and the south scaffold about an hour to an hour and a half after her initial observations (Tr. 86). She SW the employee installing guardrails on the north scaffold. The height of both scaffoids was unchanged (Tr. 49, 86). Thomas Hoover, a laborer for

‘MS. Braughler took two photographs of the scaffolding which were admitted in evidence. Respondent takes the position that these photognphs were taken at such great distances and are of such poor quality as to require “... guess work on bchaU of the compliance officer, the scaffolding rigger, counsel, and the Court in their attempt to determiac what the pictures actualiy showed.” (Respondent’s proposed conclusion of law 14.) I agree t&t these photographs are essentially useless in resohing the f&Xual controversies presented by this GW otrd have not relied on them.

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Ha& mq who served as scaffold erector at the worksite, testified that adding a buck (one sd!idd section) t&es thirty to forty-five minutes (Tr. 56-57, 62).
If rcspoadcIlt were truly engaged in scaffold erection during the inspection, an additional buck should have been added to the north and south sides by the time Inspector &aughler observed the scaffolding at those locations the second time. Because there was no change in height, it is reasonable to conclude that the employees were not erecting scaffolding. 2 When employees are not engaged in actually raising scaffolding, this argument must fail.
The Review Commission and the Third Circuit rccugnize that the Secretary may establish exposure by proving that employees had access to the hazard. Donovan w. Adams Steel Erectid, Inc., 766 F.2d 804, 812, 12 BNA OSHA 1393, 1399, (3rd Cir. 1985) (“the Secretary need only prove that employees have access to an area of potential danger”); GiOkv & Cottih~ Inc., 3 BNA OSHC 2002, 2003 (1976) (“a rule of access based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure”). The Secretary need not show that the employee was teetering at the edge of a fall hazard before establishing a violation. FL Heughes and Compny, Inc., 11 BNA OSHC 1391, 1395 (1983).
There were a total of three employees in this case who were access to the unguarded edge of the scaffold. On the south side, one employee was approximately two feet from the unguarded edge of the scaffold (Tr. 12). The other two employee&one on the north side and one on the south side, were within four to five feet of the edge of an

‘Ms Braugh.Ws testimony is iacrat wb Mr. Hoover’s testimoay that he was engaged in raising the scakolding that morning. I ualtt h Bmghkr’s testimoay oa this potit Indeed, in part, Mr. Hoover’s testimony corrobonrtts Ms. Bnu@kr’r caumoay on this point rat&r than his own. Ms. Braughler testified that masonry operatioaa 1yn saflbld emctioa, were undmmy during her inspection on Janmy 28,1992. Mr. Hoover admitted M aou-ination that there was a pile of brick on the south scaffold (Tr. 65,70). He was somewhat - about why the brick w&s there and whether it was going to be “scattered”before or after the wt m VILIMai. (Compare Tr. 71, skit have already Scattered them brick with Tr. 72, “It would be scwmal rcttr the other buck is set so they can keep going?). It is dear, however, that the brick was going to be wd lbr masonry operations which is consisteat with Inspector Braughler% observations and inmmsreat with a claim that smf#oid erection was oamring,. outrigger set just b&w the top of the scaffold@ (Tr. IQ3 All three Clearly had access to the fa hrrm+rl mtd by respondent’s failure to install guardrails. Pace Commt& ’ COP., 14 BNA 06HC 2216,2222 (1991) (employees
exposedto a fdl haad when they stood as close as two feet from the edge with no fall protection). Daniel Con.structim~ Company, 10 BNA OSHC 1549, 1551 (1982) (employees who came within 4 feet of an unprotected edge had access to a fall hazard); Avabtis Paiding Company, 9 BNA OSHC 1226, 1229 (1981) (employees who moved freely on a scaffold had access to a fall hazard).
The scaffolds were in plain view, and Respondent does not contest that it had knowledge of the fact that the scaffolds were unguarded. Indeed, its defense that the scaffolds were in the process of being erected assumes that they were unguarded (See Tr. 58-59, 63).
Under section 17(k) of the Occupational Safety and Health Act, 29 USC 3
666(j), a violation is serious where there is a substantial probability that death or serious physical injury occur. Inspector Braughler testified that a 15 foot fall could cause injuries such as broken bones, abrasions and contusions. In her opinion, these consequences require that the violation be classified as serious (Tr. 17). The Review Commission agrees that fall hazards between 10 and 15 feet are serious violations of the Act. Btown- McKee, Inc., 8 BNA OSHC 1247, 1252 (1980). Accordin& the Secretary has proven that the violation was property classified as serious.
Inspector Braughler testified about the factors she considered in recommending
a
gravity-based penalty of $625 (Tr. 17-20). Inspector Braughler considered all the factors required by Section 17(j) of the Act, 29 U.S.C. §&6(i). Based on those factors, $625 is an appropriate penalty for the wolation.

31t is not clear from the testimony wB+lbcr tbae employeta may have been protected born falling off the end of the outrigger by another csutn~ support set atme the ow supporting their work platform. Ms. Braughler testified that there was w ~adb protection, whik Mr. H-r testified that it was customary to employ such protection. Tr. 42,64. Ghm that Mr. Hoover’s tcsthmy was onen confused and hard to follow, I credit Ms. Braughlefs ttstmmy ntbet than MS.

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In 0 CONCLUSIONS OF LAW
10 Respondent is engaged in a business affecting commerce and is subject to tie requirements of the Occupational safety ad Health Act of 1970, as amended ((‘Act”).
2 l 29 C.F.R. 6 1926.451(d)( 10) applies to the scaffolds on which respondent’s employees worked.
3 l Respondent violated 29 C.F.R. 0 1926.45l(d)( 10) by failing to install
guardrails on all open sides and ends of the scaffold on both the north and south sides of the gymnasium. The proposed penalty of $625 was calculated in conformity with the requirements of section 17(j) of the Act and is an appropriate penalty for the violation. Iv 0 ORDER
Citation 1, item 1, is affirmed as a serious violation of the Act. A civil penalty of $625 is assessed.

Dated: FEB - 5 !,‘;‘j1
Washifigton, DC.