John J. Smith Masonry Co. (ALJ decision, September 7, 1993)

Plain-English summary

John J. Smith Masonry used a mobile scaffold while replacing a limestone window sill at the Cervantes Convention Center in St. Louis. The ALJ vacated the allegation that the scaffold was not erected under competent-person supervision because the Secretary did not identify who supervised its erection or prove that the supervisor was not competent. The judge affirmed an access violation because one scaffold section was upside down, interrupting the built-in ladder and creating a 44-inch gap between rungs. He also affirmed the guardrail and toeboard violation because employees used the unguarded scaffold for access and briefly as a work platform about 17 feet above the ground. The employer's plan to use the scaffold only as fall protection did not remove it from the scaffold safety requirements. The judge assessed $700 for each affirmed violation, for a total penalty of $1,400.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(a)(3), 1926.451(e)(5), and 1926.451(e)(10)
• Outcome: The competent-person item was vacated; the ladder-access and guardrail items were affirmed with two $700 penalties.
• Key point: A scaffold used for access or intended as fall protection remains subject to applicable scaffold access and guardrail requirements.

Full text (OSHRC public release)

UNITED STATES Of AMEkICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FAX:
PHONE:
COM(202)606-5050
COM(202)606-5100 lTs(202)60%5050
FTS(202)606-5lgD

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2583
JOHN J. SMITH MASONRY CO.
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 August 5, 1993. The decision of the Judge will become a final order of the Commission on September 7, 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. b Any such petition should be received b the Executive Secretary on or before August 25, 1993 in order to ermit suf fY icient time for its review. See
Commission Rule 91, 29 C. 3 .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 54004
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) 6065400.

Date: August 5, 1993
DOCKET NO. 92-2583
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

Tedrick House, Esq.
Re ional Solicitor
Ofice of the Solicitor U S DOL
Federal Office Building, km. 2106
911 Walnut Street
Kansas City, MO 64106

W. Dudley McCarter, Esquire
Behr, Mantovani, McCarter &
Ca pie110 P. C.
7777 Bodomme Suite 1806
St. Louis, MO 63105

Benjamin R. Lo e
Administrative IL w Jud e
Occupational Safety an cf Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3582

00106696677:07
\k
UNITED STATESOF AMERICA
I OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 80204-3582

PHONE: FAX.
COM (303) 844-2281
COM (303) 844-3759
FTS (303) 844-2281
FTS (303) 844-3759

SECRETARY
OF LABOR,

Complainant,

v. OSHRC DOCKET
NO. 92-2583
JOHN J. SMITH MASONRY CO.,

Respondent.

DECISION AND ORDER

APPEARANCES:
For the Complainant:

Evert H. Van Wijk, Esq., Office of the Solicitor, U. S. Department of Labor, Kansas City, Missouri

For the Respondent:

W. Dudley McCarter, Esq., St. Louis, Missouri

DECISION AND ORDER

Loye Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C., Section 651, et. seq, hereafter referred to as the Act).

                 Respondent,       John J. Smith Masonry         Co. (Smith),         at all times relevant   to this action
     maintained         a worksite     and place of business at the Cervantes              Convention    Center, St. Louis,

     Missouri,        where    it was engaged      in masonry         contracting.      Smith   admits   it is an employer

engaged in a business affecting commerce and is subject to the requirements of the Act (Tr.

W .
On June 8, 1992, an Occupational Safety and Health Administration (OSHA)

Compliance Officer (CO) conducted an inspection of Smith’s Cervantes Center worksite (Tr.

20). Following the inspection, Smith was issued “serious” citation 1 alleging violations of 29

CFR $51926 et seq. together with proposed penalties. Smith filed a timely notice of contest

to all items cited, bringing this proceeding before the Occupational Safety and Health
Review Commission
(Commission).

    On May 5, 1993, a hearing            was held in St. Louis, Missouri          on the contested       items.

At the hearing, item 1 of the citation was withdrawn (Tr. 7). Remaining at issue are alleged

violations of $1926.451(a)(3), (e)(5) and (e)(lO). The time permitted for submission of

briefs has elapsed, and this matter is ready for disposition.
Alleged Violations

Serious citation 1, item 2 states:
2
29 CFR 1926.451(a)(3): Each scaffold was not erected, moved, dismantled, or altered under the supervision of competent persons.

(a) At the site; a mason frame manually propelled scaffold four sections
high; the
frame sections were not fastened to the coupling pins.

Serious citation 1, item 3 states:

3
29 CFR 1926.451(e)(5): A ladder or stairway affixed or built into manually propelled
mobile scaffold(s) was not provided for proper access and exit:

(a) At the site, where employees accessed the working platform of a mason frame scaffold by climbing the end frames of the scaffold: the end frames were not arranged in such a way that they formed a continuous series of steps from the scaffold’s top to its bottom.

Serious citation 1, item 4 states:
4
29 CFR 1926.451(e)(lO): Standard guardrails and toeboards were not installed at all open sides and ends on manually propelled mobile scaffold(s) more than 10 feet above the ground or floor:

2
 (a) At the site, for a mason frame manually propelled scaffold; no end rails or toeboards were installed for employees on the working platform, approximately 17 feet above the ground.

Facts

      On June 8, 1992, from 1:22 p-m. to 1:23 p.m., OSHA CO Robert                                 Mercer      observed

and videotaped two Smith employees, Corey Corcoran and Rod Gilmore, working from a

scaffold at Smith’s Cervantes worksite replacing a limestone sill on a window (Tr. 40-41, 81,

152-53, 160; Exh. C-1). At 1:47 p.m. and 1:56 p.m. Mercer again photographed the

employees standing on the scaffold (Tr. 26-27, 37; Exh. C-2, C-8). The material platform of the scaffold was approximately 18 feet, 6 inches high; the work platform 17 feet 3 inches

(Tr. 51). The employees were observed moving about both platforms (Exh. C-l).
Alleged Violation of $1926.45 l(a)(3)

      The cited standard       requires     that “no scaffolds shall be erected,                 moved,   dismantled,

or altered except under the supervision of competent persons.”
The Secretary bases its contention that no competent person supervised the erection

of the cited scaffolding on Smith’s failure to lock the panels of the scaffold together vertical-

ly. Section 1926.451(d)(6) re q uires that pins or other equivalent suitable means be used to

secure scaffold sections vertically “where uplift may occur.“l

      It is undisputed      that locking pins located            at the corners    of each frame section were

not affixed to the adjoining section above (Tr. 42, 44, 48; Exh. C-3). CO Mercer testified

that uplift may be caused by high winds, or by the boom or load of hoisting machinery

nearby, which might pull a section of the scaffolding off the lower segments (Tr. 43; see also,

testimony of Edward Thomure, Tr. 240).
Mercer admitted that there was no wind, and that the weather
did not pose a lifting

hazard on the day of the inspection (Tr. 121-23). A Lull lift was operating at the time of the inspection, lifting stone over the scaffold to the sill (Tr. 50, 119, 164-65, 250; Exh. C-5). Corcoran testified that “it was kind of tight back there,” and that the boom would come within three to four feet of the scaffold (Tr. 165). Arthur Siebert, Smith’s foreman, testified,

1
Smith was not charged with violation of $1926.451(d)(6).

3 however, that the boom cleared the scaffold by six or seven feet and that he did not believe
that there was any realistic probability or likelihood that the arm of the lull could uplift any
portion of the safety platform
(Tr. 216, 222).

Siebert testified that he is familiar with the safety rules for steel frame shoring and

scaffolding (Tr. 190), and that he has attended a number of scaffold seminars conducted by

the mason contractors of St. Louis and John Smith Masonry, as well as OSHA’s certification

program (Tr. 191).
The record fails to disclose whether Mr. Siebert supervised the erection of the cited

scaffold.
Discussion
The Secretary, on this issue, failed to set forth evidence necessary to make out her

prima facie case.
At the hearing, the Secretary introduced evidence of Smith’s alleged violation of

$1926.451(d)(6). A p erceived violation of the scaffolding erection standards, however, does
not, in itself, prove a violation of the competent person requirement. The alleged violation
is only some evidence tending to show that the employer’s supervisory personnel was “[inlcapable of identifying existing and predictable hazards in the surroundings or working

conditions which are unsanitary, hazardous or dangerous to employees, and who has autho-

rization to take prompt corrective measures to eliminate them.” See, $1926.32(f) Definitions.

        In this case, the Secretary              did not identify       the supervisor           in charge      of scaffold

erection. This judge cannot pass on the competence of person or persons unknown. Citation 1, item 2 will, therefore, be vacated.

        Fl rther, this judge finds that even if Foreman                Siebert’s responsibility           for scaffold erec-

tion could be inferred from the record, the evidence does not show that Siebert was not

“competent” under the cited standard. The testimony establishes only that Siebert disagreed
with the CO as to the probability of uplift occurring under the existing conditions, and not

4
hazards or that he was unfamiliar with OSHA scaffolding regulations or accepted safety practices in the masonry industry.2
Alleged Violation of $1926.451(e)(5)

      The cited standard      provides      that for manually      propelled      mobil scaffolds:

A ladder or stairway shall be provided for proper access and exit and shall be affixed or built into the scaffold and so located that when in use, it will not have a tendency to tip the scaffold. A landing platform must be provided at intervals not to exceed 35 feet.

      It is admitted    that the third section         of the scaffold was erected         upside     down so that

the built-in ladder on that section did not line up with the rest of the ladder (Tr. 68; Exh.

C-5). The scaffold was originally set up in that manner so that the rungs would not interfere with a beam protruding from the wall at the earlier location (Tr. 157, 161, 177). There was no reason the third section could not have been turned over when the scaffold was moved from the original location (Tr. 187, 231-32).

        Mercer   observed    and photo graphed          a Smith employee         climbing    straight    down the

scaffold, reaching with his leg past the third section to the top rung on the second
section

44 inches below (Tr. 69; Exh. C-6). Section 1926.1053, et seq., dealing with ladder specifica-

tions, requires that rungs on fixed adders shall be spaced not more than 14 inches apart.

        Smith employees     admitted      that they used the scaffold to ascend              to, and to descend

from, the sill they were working on, but testified that thev4 moved across the side of the
scaffold to the next segment of built-in rungs before continuing their climb (Tr. 162, 166-67). Discussion
The Secretary has established that the cited ladder failed to provide “proper access

and exit” to and from the cited scaffold.
The Commission has held that the cited standard is not met merely by meeting the

ladder specifications contained in s1926.1053 et seq. In Bechtel Power Coporatiou, 10 BNA

2 CO Mercer also testified that there were no horizontal diagonal bar, end rails, or secured planking on the scaffold (Tr. 136). The Secretary did not question Seibert on his knowledge of OSHA standards or industry safety practices concerning these deficiencies (Tr. 220-226). Mercer also noted that improper ladder access was provided (Tr. 136). Seibert was aware of the 18 inch requirement for rung spacing (Tr. 226) .

5
OSHC 2003, 1989 CCH OSHD ll26,261 (No. 77-3222, 1982), the Commission found that
“the plain meaning of the standard is that safe access must be provided at all points between

the lower elevation and the scaffold.” Id. at 2006-07.
The offset rungs on the cited scaffold do not provide safe access for employees using

it for access to and egress from their work area. An employee climbing quickly down the
rungs might easily miss his footing, not remembering that the rungs on one side of the
scaffold end halfway down. In addition, employees might be tempted to take the 44 inch gap in the rungs in one step, as the employee in Complainant’s Exhibit 6, rather than

crossing over to the other side of the scaffold.
This judge finds that the offset rungs did not provide safe access to the scaffold and

that the Secretary therefore, has shown a violation of the cited standard. Citation 1, item 3 will be affirmed.

Alle.ged Violation of $1926.451(e)(lO] The cited section provides:
Guardrails made of lumber, not less than 2x4 inches (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor.

       Arthur Siebert, Smith’s foreman,                 testified that he advised Corcoran       and Gilmore        that

the cited scaffolding was erected solely to provide fall protection, and that they were to work

from the sill area itself, not from the platform (Tr. 203; Exh. R-6). Siebert had not seen the

Corcoran and Gilmore working v
from the platform of the scaffold (Tr. 209).
Corcoran testified that he was not instructed to work from the scaffold (Tr. 153, 174),
while Gilmore stated that he was specifically instructed not to work from the scaffolding (Tr.

184). Both felt that there was adequate room, 26 inches (Tr. 206), on the sill itself to perform the work required (Tr. 154, 175). Both stated that they worked from the sill, only
using the scaffold platform for brief seconds to go around the other worker (Tr. 155, 167,
176) .

       Mercer     testified   that Siebert        and Corcoran       told him the sill job took approximately

two hours (Tr. 129). Corcoran testified that he had been on the sill approximately an hour
and a half at the time of the inspection
(Tr. 164).

6
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 CCH OSHD
729239, p. 39,157 (No. 87-1359, 1991)

     Smith argues       that the guardrail     provisions       of $1926.451(e)(     10) are not applicable       to

the cited scaffold because the scaffold was not a working platform, but was placed below the sill solely as fall protection. Smith does not state a cognizable defense. The Commission

has found that scaffolds used solely as fall protection remain subject to the fall protection

provisions contained in $1926.451 et seq.; any other result would be anomalous. National

hdustrial Constructor, ILK., 9 BNA OSHC 1871, 1981 CCH OSHD li25,404 (No. 76-891 &

76-1535, 1981). The cited standard, therefore, is applicable to Smith’s scaffold, regardless

of its intended use.
Complainant’s videotape establishes that Smith’s employees had access to the scaffold,
i.e., that employees:
“while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to the assigned workplaces, will be, are, or have been in a zone of danger.”

Giles & Catting he., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ll20,448 (No. 504,

1975). Smith’s employees admitted they used the scaffold to access the sill, and, despite their assertions to the contrary, clearly used the cited scaffolding as a platform from which

to perform their work, however briefly.
It is undisputed either that the cited scaffold was without guardrails or toeboards, or

that Smith was aware of the scaffold’s condition. The Secretary has thus established her prima facie case.

7
Employee Misconduct
Smith argues that the presence of its employees on the cited scaffolding was contrary

to effectively communicated work rules and so was the result of unpreventable employee

misconduct. Smith’s contention is without merit.
Smith does not argue, and the record is devoid of any evidence that employees were

instructed not to use the scaffold for access, or that any alternative means of reaching the
sill was available. Corcoran’s and Gilmore’s presence on the scaffold, therefore, was not

contrary to instructions and cannot be classified as misconduct. Moreover, because the absence of guardrails constituted a violation, regardless of whether the scaffold was a
working space or a protective measure, Smith’s intention to use the scaffold solely as a safety

device cannot constitute a defense to the citation.
Penalty

Penalties of $700.00 for each violation were proposed. Smith is a small to medium
size company, with 40 employees (Tr. 64). Smith has a good history with OSHA, with no

“serious,” “repeat,” or “willful” citations in the prior three years (Tr. 65). Smith received

a 15% reduction in the proposed penalty for its good faith, based on its formal safety and

health program (Tr. 64). The gravity of the violation is moderately high. A fall from 17 to 18 feet from the top of the scaffold, or 10 to 14 feet from the ladder, could result in broken
bones (Tr. 91)3; however, only two employees were exposed, and the length of exposure was
brief. Moreover, CO Mercer felt that the working conditions were good and would not

contribute to a fall (Tr. 92).
Taking into consideration the relevant factors, the undersigned finds that the

proposed penalties are appropriate. A penalty of $700.00 per violation will be assessed.

                                  Findings      of Fact and Conclusions              of Law

       All findings of fact and conclusions                 of law relevant        and necessary       to a determination

of the contested issues have been found specially and appear in the decision above. See

3 The undersigned finds CO Mercer’s testimony credible. Contrary to the assertions of Respondent, expert medical testimony is not necessary to establish the effect of a fall from a height.

8
Rule 52(a) of the Federal Rules of Civil Procedure. Proposed Findings of Fact or Conclusions of Law that are inconsistent with this decision are denied.
Order

1. Serious citation 1, item 2, alleging violation of $1926.451(a)(3) is VACATED.

2. Serious citation 1, item 3, alleging violation of 51926.451(e)(5) is AFFIRMED, and

a penalty of $700.00 is ASSESSED.

3. Serious citation 1, item 4, alleging violation of §1926.451(e)(lO) is AFFIRMED, and

a penalty of $700.00 is assessed.

Dated: July 30, 1993