E.R. Del Moral, Inc. (ALJ decision, April 11, 1994)
Scaffold and fall-hazard violations affirmed
Apply this to your situation
This order from 1994 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current OSHA standards and Commission precedent say, with citations.
Plain-English summary
E.R. Del Moral was performing construction work in Arecibo, Puerto Rico. The judge found that employees worked on elevated scaffolds and platforms with missing end guardrails and inadequate intermediate rails, and that safety belts did not substitute for the guardrails required by the cited standards. He also found that the company did not effectively enforce its written safety program and had not adequately trained employees to recognize and avoid fall hazards. An oxygen cylinder and an acetylene cylinder were improperly stored together, so that item was affirmed without a penalty. A manhole-guarding item was vacated because the cited floor-opening standard did not apply to an outdoor opening on a dirt road. Four serious items and one other-than-serious item were affirmed, with total penalties of $8,750.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.20(b)(1), 1926.21(b)(2), 1926.451(m)(6), 1926.500(d)(1), 1926.350(j), and 1926.500(b)(6).
- Outcome: Mixed. Four serious items and one other-than-serious cylinder-storage item were affirmed; the manhole item was vacated. Total penalties were $8,750.
- Key point: Safety belts do not replace guardrails when a specification standard requires guardrails, and a written safety program must be effectively enforced and communicated.
Full text (OSHRC public release)
UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION one Lafayettecentm
1wwothStreehN.W.~QthFIooor
Washington, DC -19
ZgEgtZF
SECRETARY OF LABOR
Complainant,
v. OSHRC DocKI
NO. 92-2734
E. R DEL MORAL, INC.
Respondent.
NOTICE OF DOCKERNG
The Administrative Law Judge’s Re rt in the above referenced case w~a) docketed with the Commission on Marcr 10, 1994. The decision of the Judge will become a final order of the Commission on April 11,1994 unk a Commission member directs review of the decision on or before that date. M’+.
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received the ExecutiveSecretary on or b&ore March 30 1994 in order to emit s-&Tcient time for :its review. See Cmmissi)On Rule 91, 29 C.#!R 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re l 0na.l Trial Liti ation Office of the Sopi:l citor, U.S. DOc
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 nghts may contact the Commission’s Executive -Secretary or call (202) 606-5400.
Date: March 10, 1994
DOCKET NO. 92-2734
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, ESQ
Counselfor Re ‘onal Trial Liti ation
Office of the &&or, U.S. DCk
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 brick, Room 703
New York, NY 10014
Rafael Rodriquez, Es uire
Post Office Box 36075P
San Juan, PR 00936 0751
Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and HealtI
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00017983321:02
OCCUPATIONAL SAF~??iii?~~*~ii?ik’VEW
COMMISSION
One Lafayette Centfe
I I 20 20th Stmet,N.W. - 9th Floor
Washington, DC 2~36-3419
SECRETARY OF LABOR,
Complainant,
.
v. .. Docket No. 92-2734
..
E. R. DEL MORAL, INC.,
.
.
.
.
.
Respondent.
Appearances:
Jane S. Brunner, Esq.
Rafael Rodriguez, Esq.
U.S. Department of Labor
San Juan, Puerto Rico
New York, New York
For the Complainant
Before: Administrative Law Judge Irving Somner
.
Thia is a proceeding under Section 10(c) of the Occupa-
tional Safety and Health .Act of
1870, 29 U.S.C. section 651 BfL
sea. J ("the Act"), to review citations issued by the Secretary
of Labor pursuant to section 9(a) of the Act, and the proposed
assessment of penalties therein
issued, pursuant to section 10(a)
of the Act.
Respondent is a corporation which was engaged in
construction and related
On May 11, 1992, E. R. Del
activities.
Moral’s worksite at Road # 2, Km. 80.4, San Daniel Ward, . Arecibo, Puerto Rico was inspected by an OSHA compliance officer.
Subsequently, on July 27, 1992, the company received two
citations resulting from this inspection. Respondent filed a timely notice of contest to the citations and penalties. A hearing was held on May 18, 1993, in Hato Rey, Puerto Rico. Both
parties were represented at the hearing
partie have and both filed post-hearing briefs. No jurisdictional issue8 are in dispute. The matter is now before the undersigned for a decision on the merits.
Serious Citation 1, item 4 alleges:
Standard guardrails and toeboards were not installed at all
open sides and bracket scaffolds
ends on carpenter's
more
than 10 feet above the ground or floor.
At the hearing on May 18, 1993, the compliance officsr, Radames Santisteban, testified that hs observed two sections of
carpenters’ metal bracket scaffolds, 16 feet above ground level, which were not provided with railings at the ends, and the intermediate railing along the side was too low (only 12 inches above the platform). Mr. Santisteban observed Respond8nt’s employees doing rigging work from these scaffolds, four feet away from the unguarded ends and six inches away from the improper midrails. These conditions are depicted in a drawing made by the compliance officer designated as exhibit C-l. There are no photographs of this condition, as the compliance officer testified that his camera malfunctioned. The compliance officer further testified that Respondent acknowledged that the ends of the scaffold were unguarded allegedly because materials had to be brought up that way. Respondent basically raised an affirmative defense that compliance with the cited standard was impossible/infeasible. In addition, the compliance officer noted that Respondent’s employees on the scaffold were wearing safety belts while they were stationary, but were not tied off as they moved from place to place along the twenty foot length of scaffold.
In response to Respondent’s affirmative defenao of
impossible/infeasible, the Secretary asserts that even if the guardrails at the ends of the scaffolds had to ba removed at various times to allow materials to be brought up, the maffold ends could have been guarded at all other times while materials were not being brought up to protect Respondent’s employees. In addition, the compliance officer noted that during the approximately 45 minutes that he was there, no materials were brought up to the scaffold (transcript, p. 8-15, Secretary’s brief, p. 3-8).
Respondent argues that the Secretary has failed to
prove that Respondsnt’s employees were exposed to a fall hazard due to the absence of end guardrails or improper midrails. Respondent asserts that its employees were working on the scaffold and each of them wore a safety belt with a rope attached to a sound and rigid structure. The only time that the compliance officer saw them untied was when they moved from place to place along the 20 foot scaffold.
-4-
Respondent readily admits that the ends of the scaffold
were unguarded because materials, such as steel rods, had to be
brought up that way. The installation of a railing at the end of .
the scaffold would be impossible/infeasible as it wou Id have
prevented the bringing up of the materials in a safe manner. If
the Respondent had installed removable railings at the end of the
scaffold, as suggested by the compliance officer, Respondent
asserts that this would create a more hazardous condition for its
employees, because the employees would have to untie themirslve8
and walk to the end of the scaffold to remove the guardrail every
time materials were brought up, thereby exposing theasslvesl to a
. fall hazard as they would have no protection at all once tha
guardrail was removed. Further, if permanent railings WOE8
installed at the ends of the scaffold, the great weight of
bringing up the steel rods could collapse the railings, thereby
exposing the employees
to a greater fall hazard.
Respondent further argues that it more than fully
complied with the OSHA standard by providing- not one- but two
protections to its employees, i.e. safety belts and proper
guardrails around the perimeter of the scaffold, except at the
ends for the reasons previously explained. If a technical
violation of the standard is determined to exist, it should be
adjudged only a & ainilnis violation, as the “violation” had no
direct or iM8diat8 relationship to the safety and health of its
employees (transcript,
p. 98-119, Respondent’s brief, p. 3-5).
The totality of the evidence concerning this citation
item clearly establishes a violation of the standard as cited.
Respondent readily admits that the ends of the scaffold were
unguarded so that materials could more readily be brought up to
the scaffold. Respondent has also failed to prove that
compliance with the standard as cited was in any way
impossible/infeasible. Further, the Secretary has established
noncompliance with the requirements of the cited standard and 8mp10y88 8XpOsure. In addition, Commission precedent requires a finding that the use of safety belts does not constitute “equivalent protection’ ’ as that term is used in sect ion 192&451(m)(6). See Secretarv of Labor v- Uw Iran Warkg 3 8 BNA OSHC 1354 (No. 76-3105, 1980).
The Secretary proposed a penalty of $1,750 for this
citation item. Having considered the statutory criteria, I conclude that the penalty proposed by the Secretary is appropriate.
. . .
11 C.F,R, sactlan -dim
Serious Citation 1, item 5 alleges:
Open-sided floors or platforms, 6 feet or more above
adjacent floor or ground level, were not guarded bY a
standard railing or the equivalent on all open sides.
The compliance officer testified during the hearing
that he observed four foot wide beam-support platforms, fifteen feet above the concrete floor which were not provided with standard guardrails. He noted in instance 1, on both sides of the fixed ladder, there was no intermediate railing for a length of 12 feet; in instance 2, in the center section, there were no rails at all for two 8 foot lengths; and in instance 3, in the southwest area, there was no intermediate railing for a length of 12 feet. The compliance officer further observed that Respondent's employees were performing the work of tying rods and were working just inches away from each of the improper railings. In addition, the compliance officer noted that during the approximately 25 minutes that he was there, no materials were brought up to the platform. These conditions are depicted in a
drawing made by the compliance officer designated as exhibit C-2.
There are no photographs of this condition, as the compliance
officer testified that his camera malfunctioned (transcript, p.
20-32, Secretary's brief, p. 8-13).
Respondent strongly disagrees with the compliance
officers observations. Respondent asserts that the beam-support platforms did have the proper guardrails(inatance lam instance 3). To support its contention, Respondent introduced into evidence, exhibit, R-1, which is a photograph taken on Harob 21, 1992 (almost 2 months prior to the inspection) which shows beam-support platforms with guardrails. Though the photograph was not taken on the date of the inspection, Respondent notes that the picture clearly shows the beam-support platform with complete railings at the time that the picture was taken. Respondent asserts that it is unreasonable to suggest that the railings were in place on the date of the picture and then r8mOV8d shortly thereafter. In addition, Respondent's witness, '
Mr. Espada, testified that the railings were complete in instance
1 and instance 3 and were missing in instance 2 as materials were being brought up. Further, the witness testified that he and the other employees were wearing safety belts while working on the platform, as employees were not allowed to work without them.
As in citation 1, item 4, Respondent readily admits
that -in instance 2 here, the ends of the platform were unguarded
because materials had to be brought up that way. The
installation of a railing at the end of the platform would be
impossible/infeasible as it would have prevented the bringing up
of the materials in a safe manner (transcript, pa 98-119,
Respondent’s brief, p. 5-10).
The record concerning this citation item fully
demonstrates a violation of the standard as cited. The
compliance officer gave his testimony in a straight -forward,
frank, and convincing manner and appeared truthful and
to be
honest and his testimony was sufficient to make out a W W
case of a violation of the standard at issue. Respondent readily
admits (as in citation 1, item 4) that the ends of the platform
. were unguarded so that materials could more readily be brought up
to the platform. Respondent has also failed to proou that
compliance with the standard as cited was in any way
impossible/infeasible.
In addition, Respondent’s introduction into evidence of
exhibit R-l (a photograph of jobsite conditions taken almost two
months prior to the inspection) is not sufficiently persuasive to
provide an adequate defense for Respondent. Further, there can
be no dispute that the Secretary has authority to adopt and
enforce a specification for a particular abatement measure in a
particular circumstance, such as guardrails for open floor and
platform edges. If a specification standard does not provide for
an alternative form of compliance, the fact that an employer has
implemented an alternative measure instead of the specified
measure cannot justify vacating a citation. Section
1926.500(d)(l) does not make compliance with any other personal
protective equipment standard an exception to its requirements
and does not designate safety belts
the equivalent of guardrails.
.
See Secret-v
of Labor v. R & R Builders # 15 BNA OSHC 1383 (No.
0
88-282, 1991), Secretary df Labar v- Ormat Cz 8 14 BNA
OSHC 2134 (No. 85-531, 1991), me-v of Luwete
Kprtwtt InL, 14 BNA OSHC 1215, 1585 (No. 88-2645, 1990).
The Secretary proposed a $3,500 penalty for this citation item. Under all the existin$ facts and circumstances herein, a penalty of $3,500 for said violation of the standard is consistent with the criteria set forth in section 17(j) of the Act.
.
n clrp 29 C.F.R. seatlqD l~B.zO(b>(Q
Serious Citation 1, item 1 alleges:
A safety program was not initiated and/or maintained to
provide compliance with the general safety and health
provisions of the standard.
At the hearing, Mr. Santisteban testified that during
his inspection of Respondent's construction site, he mea&nod E. R. Del Moral's written safety program and concluded that the company was not enforcing the program and not utilizing its best efforts to provide a safe worksite or to control potential hazards to its employees.
The compliance officer based this particular citation
on the additional serious violations that he had observed during . his inspection. He also noted that Respondent’s safety officer, Mr . Hiram Soto, who accompanied Mr. Santisteban during the
inspection,
did not appear to be very familiar with the safety
standards
of the construction industry to effectively maintain
the company's safety program. Mr. Santisteban also testified that he had notified Respondent’s project engineer, Mr. Jose Arroyo, that he noted that the company had problems with its overall safety program. In addition, the compliance officer testif ied that neither Respondent’s safety officer, nor its project engineer denied that the company had some problems with its safety program. The project engineer even acknowledged to
- 9-
him that th8 company was trying to maintain a safe workplace but there were times when they had gotten "a little behind” on safety concerns in order to speed up the construction project (transcript, p. 33-37, Secretary's brief, p. 1345).
E. R. Del Moral asserts that it did hav8 an adequate
safety program and was not in violation of the standard cited. Respondent argues that if the compliance officer alleges that the
company*s safety program and work rules
adsquat to ar8 not
eliminate hazards at the jobsite, the Secretary has the bultdanto
indicate to the company what other steps n88d to be taken to
accomplish this goal. Respondent further maintains thlt the
compliance officer did not suggest that any additional measu~e8 should be initiated by Respondent because th8 company was already doing everything it could to maintain a safe workplacs. In fact, the Secretary’s own attorney in this CaS6 stipulated at the hearing that E. R. Del Moral was complying with evary OSHA construction standard, other than the ones for which it was cited
(transcript, p. 116-117, Respondent's brief, p. 1042).
As to this citation item, I find that the Secretary has
established a violation of the standard by a preponderance of tha evidence presented. The evidence and testimony presented reflect that E. R. Del Moral knew or should have known of the potential hazards to its employees. Though the Respondent did have a written safety progmm, there is very little indication that the company was enforcing the safety program, communicating it in an effective manner to all of its employees, or utilizing its best efforts to provide a safe workplace for its employees by regular safety meetings and training of all of its employees to recognize and avoid hazards at the jobsite. See tire-v of wr
.
Builders 3 15 BNA OSHC 1383 (No. 88-282, 19QlL Secretarvof
.
raw 3 14 BNA OSHC 1092 (Nos.
88-1397 and 88-1546, 1989).
The Secretary proposed a $1,750 penalty for this citation item. Taking into consideration all relevant factors
and the gravity of the offense, a penalty of $1,750 is assessed.
,(a
Serious Citation 1, item 2 alleges:
The employer did not instruct each emplOy in the
recognition and avoidance of unsafe conditions and the
regulations agplioable to his work environment to control or
eliminate any hazards or other exposure to illno or
injury. = .
The compliance officer
testif ied that during the
closing conference he had ascertained from Respondent's project engineer, Mr. Amoyo, and Respondent’s safety officer, Mr. Soto, that E. R. Del Moral's employees had not yet received training to avoid fall hazards at the worksite, though such training was being set up. Mr e Santisteban also noted that during the inspection, while being accompanied by Hr. Soto, several of B. EL Del Moral's employees on. the scaffold and several employees on the platform specifically told him that they had received no
training to recognize and avoid any fall hazards to which they
were exposed (transcript, p. 37-41, Secretary's brief, p. 15-17).
Respondent argues that it did not violate the standard
cited as it readily trained its employees to recognize hazards and avoid them at the worksite. Mr. Jose Arroyo, Respondent's project engineer, specifically testif ied that he himself had instructed employees regarding the various hazards that they
-ll-
could encounter at th8 worksite and was especially concerned with
their avoiding any problems with fall hazards. He also testified
that it was company policy for employees to wear safety belts
whenever they worked on scaffolds or platforms. Further, he
noted that he had instructed his carpenters how to build and
install railings. In addition, Mr. Arroyo considered !fr. Soto,
E.R. Del Moral’s safety officer, to b8 very experienced and
competent regarding safety matters. Respondent’s employ888, Hr.
.
Arce and Hr. Espada, both testified that they wore safety belts
and had been trained in their use (transcript, pm 95-119,
Respondent’s brief, p. 1243).
The record concerning this citation itm fully
demonstrates a violation of the standard cited. Tha standard
requires that employees be instructed how to recognize and avoid
dangerous conditions that they may reasonably be expectad to
encounter in their workplace. Having reviewed the entire record
in this case, I find that the standard applies to the cited
working conditions. Furthermore, I find that the requirements of
the standard were not met. E.R. Del Moral’s employees were
exposed to the violative condition and the company had knowledge ’
that the violative conditions existed. See marv of Labar v-
m s 15 BNA OSHC 2011 (No. 900
.
2668, 1882), &gretuv of Labor v- Ford Deweat Cz 8
15 BNA OSHC 2003 (No. 90-1505, 1992).
A penalty of $1,750 for the violation is consistent
with the criteria set forth in section 17(j) of the Act under all
the existing facts and circumstances and is asqessed for this
citation item.
-12.
Other Citation 2,
item 1 alleges:
Oxygen cylinders in storage were not separated from fuel-gas
cylinders, reserve stocks of carbides, or highly combustible
materials (especially oil or grease) by a minimum distance
of 20 feet or by a noncombustible barrier at least five feet
high having a fire-resistance rating of at least l/2 hour.
At the hearing, Mr. Santisteban testified that during
the walkaround inspection he had observed one oxygen cylinder
and one acetylene cylinder that were side
in their
by side
carrying cart) tied with a chain. The regulators had been
removed fram both cylinders, and the carrying cart waa located
about 3 feet from the entrance of th8 materials shack. The
compliance officer also that one of Respondent’s
noted
8mp1oyses
was working about two feet from the cylinders (transcript, p. 410 46, Secretary’s brief, p. 17-18).
B.R. Del Moral asserts that it is not guilty of
violating the cited standard.
The oxygen cylindsr and an acetylene cylinder were side by side in their carrying cart but
they were not ‘Tin storage” but were "available for immediate use”. During the hearing, Respondent argued that the standard does not define the term “storage’ ’ and does not forbid the placing of an oxygen cylinder and an acetylene cylinder together when not in storage (transcript, p. 83-87, Respondent's brief, p. 14-15).
Taking into consideration the arguments of both parties
and the testimony and record evidence in this case, 1 conclude that a violation of the standard as cited has been proven. The
Secretary has clearly established that one oxygen cylinder and
one acetylene cylinder were stored side by side in their carrying
.-
-id-
cart tied with a chain. E. EL D,el Moral did not rebut this evidence and did not show that the cylinders were available for immediate use in the area in which they were located. Accordingly, a violation of the cited standard has been
.
established. See Secretam? of Labor v. G-1 Fuw Jr,
15 BNA OSHC 1330 (No. 90-2404, 1991))
a 14 BNA OSHC
1423 (No. 88-2432, 1989).
Other Citation 2, item 2 alleges:
Manhole floor opening(s) were not guarded by standard cover8
or protected by standard railings.
-.
The compliance officer testified that he had observed a
manhole four feet by three and one-half feet at ground level at the company’s construction site that was not provided with a standard cover nor prot8ct8d bY a standard railing. Mr . Santisteban also noted that some of Respondent’s employeas walked within three to four feet of the open manhole. The compliance officer testified that though Respondent asserts that the manhole was being utilized by an electrical subcontractor, he personally observed no work being done during the approximately ten minutea he was at that location (transcript, p. 48-49, Secretary’s brief, p. 18-19).
Respondent argues that the was not guarded
manhole
because it was being used by an electrical subcontractor, whose employees had been doing some electrical work in that area earlier in the day and apparently had failed to replace the
manhole cover. Further, the company contends that the citation
-14.
issued by the Secretary does not apply here. The standard only
applies to mariholes with an entrance aperture for working or
inspection purposes on a floor level. E.R. Del Moral asserts
that the cited standard does not apply to a manhole on a dirt
road being used for electrical purposes (transcript, P. 87-90,
Respondent's brief, p. 15-M).
Taking into consideration all the record evidence and
credible testimony presented regarding this citation item, the
undersigned concludes that the Secretary has failed to establish
the existence of the recognized hazard as citad. Consequmt ly,
.
this citation item is hereby vacated.
The Employer correctly argues that the cited standard
does apply
tin;! to the violation described here. Inasmuch as the
cited cavity was located outside of the edifice it cannot be
considered a ’ ’floor opening’ ’ and the citation for alleged
violation of 29 C.F.R. section 1928500(b)(6) is vacated. see
,Inc., 13 BNA OSHC 1641 (No. 879
.
.
802, 1988), Secretary af ur v. D-1 Nctun Cm 3 8
BNA OSHC 2002 (No. 13874, 1981).
All findings of fact and conclusions of law relevant
and necessary to a determination of the cont8St8d issues have
been found specifically and appear herein. See Rule 52(a) of the
Federal Rules of Civil Procedure. Proposed Findings of Fact or
Conclusions of Law inconsistent with this decision are denied.
-15.
Based upon the Findings of Fact, Conclusions of Law, and the
entire record, it is hereby ordered:
1 Citation 1, item 1, alleging a serious violation of 29
C1F.R. section 192620(b)(l), is affirmed and a penalty of
$1,750 is assessed.
2 Citation 1, item 2, alleging a serious Violation of 28
C1F.R. section 192621(b)(2), is affirmed and a penalty of
$1,750 is assessed.
3 Citation 1, item 4, alleging a serious violation of 28
C1F.R. section 1826.451(m)(6), is affirmed and a penalty of
$1,750 is assessed.
4 Citation 1, item 5, alleging a serious violation of 29
C:F.R. section 1926.500(d)(1), is affirmed and a penalty of
$3,500 is assessed.
5 Citation 2, item 1, alleging an other violation of 29 C.F.R.
section 1926.350.(j),is affirmed and a penalty of $0 is assessed.
6 Citation 2, item 2, alleging an other violation of 29 C.F.R.
s&ion 192&500(b)(6), is vacated.
DATED: k 10 1994
Washington; D.C.
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