Lawrence B. Wohl, Inc.
Mobile-scaffold penalties increased to $1,000
Apply this precedent to your situation
This is citable Commission precedent from 1994, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Lawrence B. Wohl employees installed lathing and sprayed fireproofing from small mobile scaffolds at a Yonkers waste-transfer-station project. One scaffold had unlocked casters and exposed an employee to a four-foot fall, while another lacked a midrail and toeboard and exposed two employees to a possible 16-foot fall. The Commission agreed that the violations were serious but found the probability of an accident relatively slight because the scaffolds were low, a ground employee helped steady them, one wheel was locked, and one top rail provided partial protection. It characterized the gravity as low to moderate and gave full credit for size, history, and good faith. The Commission increased the judge's penalties from $150 and $250 to $250 and $750, for a total of $1,000, still below the Secretary's proposed $1,750 for each item.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.451(e)(8) and 1926.451(e)(10).
- Outcome: Modified. Two serious items remained affirmed, and the combined penalties were increased from $400 to $1,000.
- Key point: Penalty gravity depends not only on the possible severity of a fall but also on accident probability, exposure, and partial protective measures.
Full text (OSHRC public release)
UNlTED STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
SECRETARY OF LABOR,
a
0
Complainant, ..
e.
v. : OSHRC Docket No. 92-2109
..
LAWRENCE B. WOm INC. l
.
.
.
Responhenti _ ‘. ..
.
1
DECISION
BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
In this case we determine an appropriate penalty for two violations of standards
governing mobile scaffold safety. The Secretary proposed a penalty of $1,750 for item 1
involving unlocked casters, and $1,750 for item 2 involving a missing midrail. The judge
assessed a penalty of $150 for item 1 and $250 for item 2. For the following reasons, we
find the appropriate penalties to be $250 for item 1 and $750 for item 2.
The scaffolds in question were in use at a waste-transfer station under construction
in Yonkers, New York. Employees installed lathing and sprayed on fireproofing material
from 3 x &foot mobile scaffolds 4 feet high. An employee on the ground would move and
steady the scaffold, and sometimes mix material and ready supplies as well. On one floor,
- several wheels of a scaffold were unlocked, in violation of 29 C.F.R. 0 451(e)(8),l exposing
‘The standard’provides:
8 1926.451 scaffolding
(continued...)
2
one employee to a LLfootfall. On another floor, the guardrail of a scaffold consisted only
of a 36inch-high top rail, with no midrail or toeboard, in violation of 29 C.F.R.
$ 1926.451(e)(10),2exposing two employees to as much as a 16 foot-fall (4 feet to an open-
sided concrete floor on which the scaffold stood, plus 12 feet to the floor below).
Under section 17(j) of the Act, 29 U.S.C. 6 666(j), the Commission considers four
factors in determinin g an appropriate penalty: the gravity of the violation, size, previous
history, and the good faith of the employer. Gravity is normally the most important factor.
Nacirema Operating Co., 1 BNA OSHC 1001 (No. 4, 1972). In determining the gravity of
a violation, the Commission takes into account such facts as (1) the number of employees
exposed, (2) the duration of exposure, (3) the precautions taken against injury, and (4) the
degree of probability that any injury would occur. See QualityStamping prodductsCo., 16
BNA OSHC 1927 (No. 91-414, 1994)?
I( ...continued)
l
idj Mawallj propelled mobile scafokk
(8) Scaffolds in use by any persons shall rest upon a suitable footing and shall
stand plumb. The casters or wheels shall be locked to prevent any movement.
2The standard provides:
8 1926.451 Molding
&j kanually propelled mobile scaffolds.
(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material
providing equivalent protection), approximately 42 inches high, with a midrail,
of 1 x 6 lumber (or other material providing equivalent protection, shall be
installed at all open sides and ends on all scaffolds more than 10 feet above
the ground or floor. Toeboards shall be a minimum of 4 inches in height.
Wire mesh shall be installed in accordance with paragraph (a)(6) of this
section.
?“he severity of an injury, if an accident were to occur, is already established in the process
of characterizing the violation as a serious one. Mr. Wohl admitted that someone who fell
16 feet could be seriously hurt. The judge mentioned on the record that he believed the 4-
foot fall hazard, while serious, was “not too dangerous,” but had a “certain element of
danger in it.”
3
The Secretary’s proposed penalties in this case are based largely on the opinion of
a compliance officer who thought an accident was not unlikely. The compliance officer
testified, however, that “there’s a good likelihood” of an employee suffering fatal injuries
from falling 16 feet. He also testified that “knowing the type of work, since they’re working
on a scaffold near an open edge on the one scaffold, the other one they’re doing the spray
thing, the scaffold can shimmy] and move, the wheels being knocked[,] the probability of
them losing their balance or having the scaffold move and them being pitched from it was
greater . . . .”
The judge’s reasons for lowering the penalties proposed by the Secretary are not
entirely clear. He did not expressly hold that an accident was improbable. Nor does it
appear that his determination was based on a crediiility assessment in which he believed the
employer over the compliance officer.
While we agree with the Secretary that the judge’s decision is not as explicit as it
might have been, we agree with the judge’s implicit finding that an accident was relatively
improbable. The East scaffolding was not high, an employee stationed below helped
maintain stability, and the one locked wheel provided some measure of protection. The
second scaffolding exposed two employees to a possrble 16-foot fall but was equipped with
a single guardrail. The preponderance of the evidence does establish that if an accident -
occurred it would have serious consequences, but the evidence does not support a finding
that there was a high probability of an accident occurring. In light of the employer’s partial
compliance with the standards, the fairly technical nature of the violations, and the kind of
fall hazards involved’here, the probability of a serious accident occurring was slight. Based
on these factors, we conclude that the gravity of the violations was low to moderate. The
Secretary extended full credit for good faith, size and history and we find nothing in the
record to suggest otherwise. We therefore conclude that on balance a penalty of $250 is
appropriate for item 1 and $750 is appropriate for item 2.
4
ORDER
Accordingly, we affirm item 1, a violation of 29 C.F.R. 8 1926.451(e)(8), and assess
a penalty of $250; and we aflirm item 2, a violation of 29 C.F.R. 8 1926.451(e)(lO), and
assess a penalty of $750.
Stuart E. Weisberg
chairman
Edwin G. Foulke, Jr.
Commissioner
Date& December 30, 1994
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
..
SECRETARY OF LABOR, .
l
.
.
Complainant, ..
..
v. .. Docket No. 92-2109
.
LAWRENCE B. WOHL, INC., I
..
Respondent. ..
.
The attached decision by the Occupational Safety and Health Review Commission was issued on
December 30,1994. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED wEiowIsHEs
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL m THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 0 660.
.
FOR THE COMMISSION
December 30, 1994
Date
Executive Secretary
Docket No. 92-2109
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. 20210
Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014
Lawrence B. Wohl, President
Lawrence B. Wohl, Inc.
49 Beech Street
Port Chester, NY 10573
Irving Sommer
Chief Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 200363419
UNITED STATES OF AMERICA
OCCUPAT,lONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
SECRETARY OF LABOR 1
Complainant,
v. \ OSHRC DOCKET
NO. 92-2109
LAWRENCE B. WOHL, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on June 4, 1993. The decision of the Judge
will become a final order of the Commission on July 6, 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 petition should be received by the Executive Secretary on or before
June 24, 1993 in order to ermit sufficient time for its review. See
Conxmission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revlew 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 Liti ation
Office of the Solicitor, U.S. DOgL
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
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMLSSION
Date: June 4, 1993
DOCKET NO. 92-2109
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014
Lawrence B. Wohl, President
Lawrence B. Wohi, Inc.
49 Beech Street
Port Chester, NY 10573
Irvin Sommer
Chie f Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00106988421:02
/Giish UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
.
.
SECRETARY OF LABOR, ..
b
.
Complainant, ..
..
v. .. Docket No. 92-2109
..
LAWRENCE B. WOHL, INC., ..
..
Respondent. ..
.b
Appearances:
Mark A Ho&t, Esq. Lawrence B. Wohl, President
U.S. Department of Labor Lawrence B. Wohl, Inc.
New York, New York Port Chester, New York
For the Complainant For the Respondent
Before: Administrative Law Judge Inring Sommer
DECISION AND ORDER
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C. et seq., hereafter called the “Act”).
Following an inspection of the Respondent’s business site at Exit 6 West New York
State Thruway in Yonkers, New York, the Secretary issued two citations charging violations
as follows:
Citation no. 1 alleged a serious violation of 29 CFR 1926.451(e)8), and
Citation no. 2 alleged a serious violation of 29 CFR (e)(lO).
The Respondent filed a timely notice of contest placing in issue all items in the
citations. A hearing was held in New York, New York. All parties were represented and
filed post hearing briefs. No jurisdictional issues are in dispute, the parties
2
having pleaded sufficient facts to establish that the Respondent is subject to the Act and the
Commission has jurisdiction of the parties and the subject matter.
BACKGROUND
Lawrence B, Wohl, Inc. is a New York corporation with its principal office and place
of business in Port Chester, New York. The corporation is engaged in the business of
fireproofing and related activities The inspection herein was conducted on May 21-22,1992
at a waste transfer station in Yonkers, New York wherein the Respondent was a
subcontractor on a job being carried out,
DISCUSSION
Alleged Violation of 29 C.F.R. 1926.451(e)(8)
The Secretary alleges that Respondent violated Section 1926.451(e)(8) by
allowing employees to work on manually propelled mobile scaffolds whose wheels were not
locked to prevent movement.
Section 1926.451(e)(8) provides:
(e) Manually propelled mobile scaffolds ..
(8) Scaffolds in use by any persons shall rest upon a suitable footing and shall
stand plumb. The casters or wheels shall be locked to prevent any movement.
In this case we have unrefuted testimony of the compliance officer that employees
of the Respondent were working on mobile scaffolds at two different locations, i.e., the 2nd
and 3d levels of a waste transfer station (Respondent describes the locations as the 2nd and
ground levels), at which time the wheels of the scaffolds were not locked as required.
Specifically, on the 3d level there was one wheel unlocked, and on the 2d level all four
wheels of the scaffold were unlocked. One employee working on the 2nd level scaffold was
subject to a four foot fall, and two employees on the 3d level scaffold were subject to a
sixteen foot fall. The Respondent had full knowledge of the violations since a foremen was
located in both areas and knew of these conditions. Moreover, the cited standard clearly
required that casters or wheels on said mobile scaffolds must be locked to prevent
3
movement, and the existence of a hazard must be presumed when noncompliance is shown,
as herein. Respondent’s violation of the standard at 1926.451(e)(8) has been established.
There was always the possibility that if the scaffold suddenly moved or jerked while
the employees were working thereon they could be thrown resulting in a four foot or sixteen
foot fall. The likely result of such a happening could be serious physical injury and even
death. Respondent’s violation was serious.
Alleged Violation of 29 C.F.R. 1926.451(e)(lO~
The Secretary alleges that the Respondent violated Section 1926.45l( 10) for
its failure to have guardrails installed at all open side on a manually propelled mobile
scaffold more than 10 feet above the ground or floor.
Section 1926.4519E)( 10) provides:
0e Manually propelled mobile scaffolds.
(10) Guardrails made of lumber, not less than 2x4 inches (or other material
. providing equivalent protection), approximately 42 inches high, with a midrail, of lx6 inch
lumber (or other material providing equivalent protection), and toeboards shall be installed
at all open side and ends on all scaffolds more than 10 feet above the ground or floor.
Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in
accordance with paragraph (a)(6) of this section.
Hereto, the unrefuted- testimony of the compliance officer established that the mobile -
scaffold at the 3d level upon which he noted two employees working did not have the
guardrails required by the standard, thusly exposing the employees to a fall of -more than 10
feet to the ground. The compliance officer stated there was a potential fall hazard of 16
feet. The evidence further demonstrates that the Respondent had actual knowledge that the
necessary guardrails were missingHis non-compliance with Section 1926.45l(e)( 10) was
proven. A fall from such a height could likely result in serious injury or death.
Respondent’s violation was serious.
T& Commission is the fir&judge &f ;lienalties.in all contested cases. secretav v.
I
&A&i, -andEZ~emtate Glass Co., $7 F2d 1. ,438,(8th Cir. 1973). Respondent; had three
. * .
>.. ~mployees’
I. ... . working on the &&folds. There is no eviderke of a history of prior violations.
.
Mofeoverhthe .evidence . shows
.. there
I ..was
. , a employee
. assigned adjacent to .the scaffolds to
help nkintain the; s&b&y., ‘The.gravity of the viofations,is moderate to ievere, After due
.7 . . . :I(
,&siderkion
I of ‘the relevant factors,
. it .is determined that the following
.’ are appropriate . I .
. : . c:. . . ’:
..
z8‘- ’penalties: ~c . jI : . ‘”I” ,. 4 F ’’
. ., ..
, * ’ r p &m \l .: ,.2$15()o(p - -. ’’
.
. I Item 2 . 4&o& . “-, I__.. /
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& p GS- QF FACT AND
, CONCLUSIC9NS QF MW . ‘,
:- .*
‘The find&s of fact and con~lusi&s of‘law contained in this opinion are incorporated
her& in qa=ordance with Rule 52(a) ‘of the Federall’Rules of CivilProcedure.
3 .k- - 3.. ir.’__
& :
, ‘_
..
ORDER ’ .I-
.
. .In view of the foregoing and good cause appearing1 in support of the determinations,
I’ ’
.;it is ORDERED; That. the allegations and proposed penalties set forth in the serious
‘citation
0.I issued to Wohl are: modified and affirmed as follows:
Serious Citation no. 1, jtem 1 - Affirmed with an assessed penalty of $150.00.
Serious Citation no. -1,item 2 - Affirmed with an assessed penahy of $250.00.
Judge
1 DATED: ,JUBi - 2 1993
Washirigton, D.C.
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