Metric Constructors, Inc.
General contractor held liable for subcontractor hazards
Apply this to your situation
This order from 1994 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
Metric Constructors was the general contractor for a 29-building federal prison project covering about 200 acres in Estill, South Carolina. OSHA cited scaffold, trench, hazard-communication, fire-extinguisher, compressed-gas-cylinder, and trench-access conditions created by subcontractors whose employees were exposed. The judge held that a controlling general contractor is not strictly liable for every subcontractor violation, but can be responsible for hazards it could reasonably have detected, prevented, or corrected through its supervisory authority. Metric provided equipment and training and conducted inspections, but the judge found that the numerous visible violations showed its safety oversight was not sufficient for the project's size. He affirmed most scaffold and all trench-related items, vacated several scaffold sub-items for insufficient proof or duplication, and affirmed four other-than-serious items without penalties. The serious-item penalties totaled $9,200.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.451(a)(2), 1926.451(a)(10), 1926.451(a)(13), 1926.451(a)(14), 1926.451(d)(4), 1926.451(d)(10), 1926.651(j)(2), 1926.651(k)(1), 1926.652(a)(1), 1926.59(e)(2), 1926.150(a)(3), 1926.150(c)(1)(i), 1926.350(a)(1), and 1926.651(c)(2).
- Outcome: Mixed. Most allegations were affirmed, several scaffold sub-items were vacated, four other-than-serious items carried no penalty, and $9,200 was assessed.
- Key point: A general contractor with site-wide control must use reasonable diligence scaled to the project and can be liable for visible subcontractor hazards even when its own employees are not exposed.
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
PHONE: FAX:
COM (202) 6064100 COM (202) 606-5050
Frs (202) 606-5100 Frs (202) 606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3322
METRIC CONSTRUCTORS
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 December 30, 1993. The decision of the Judge
will become a final order of the Commission on January 31, 1994 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 b the Executive Secretary on or before
January 1B, 1994 in order to ermit su 7ficient time for its review. See
Commission Rule 91, 29 C.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
WashiRgton, D.C. 20036-34 19
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
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 rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COM&fZQION
Date: December 30, 1993
DOCKET NO. 92-3322
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOFL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William H. Berger
De uty Regional Solicitor
Ofice of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309
J. Larry Stine, Esquire
Wimberly & Lawson, P. C.
Lenox Towers, Suite 1750
3400 Peachtree Raod, N. E.
Atlanta, GA 30326
James D. Burroughs
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00018112284:04
c
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, NE., SUITE 240
ATLANTA, GEORGIA 30309-3119
PHONE: FAX:
COM (404) 347-4197 COM (404) 347-0113
Frs (404) 347-4197 FTS (404) 347-0113
..
SECRETARY OF LABOR, ..
..
Complainant, 0.
..
v. .. OSHRC Docket No. 92-3322
..
METRIC CONSTRUCTORS, INC., ..
..
Respondent. .0
.m
APPEARANCES:
Channah Broyde, Esquire J. Larry Stine, Esquire
Office of the Solicitor Wimberly and Lawson
U. S. Department of Labor Atlanta, Georgia
Atlanta, Georgia For Respondent
For Complainant
Before: Administrative Law Judge James D. Burroughs
DECISION AND ORDER
Metric Constructors, Inc. (Metric), contested nine alleged serious violations of the
scaffolding and trenching requirements and four “other” alleged violations for the lack of
a hazardous communication program, failure to conspicuously locate fire extinguishers, lack
of valve protection caps for two acetylene and oxygen compressed gas cylinders, and lack of
safe access from a trench. The Secretary seeks to hold Metric, the general contractor, liable
for the violations. The conditions were created by employees of subcontractors, not
employees of Metric. The Secretary contends that Metric did not act in a reasonable and
responsible manner to prevent the violations.
GENERAL FACTS
Metric is a large construction company which employed approximately 200 persons
at the site at the time of the inspection (Tr. 316, 419). It was the general contractor for
construction of a Federal prison on land owned by the United States Department of Justice,
Bureau of Prisons (BOP) in Estill, South Carolina. The project involved the construction
of 29 buildings totaling approximately 470,000 square feet and extending over 200 acres (Tr.
315). At the peak of the project, it employed approximately 520 personnel. The employees
included those hired by Metric and those hired by subcontractors. Between January and
May of 1992, Metric was using the services of subcontractors for mechanical, electrical,
masonry, security, sprinklers, roofing and structural work.
Metric’s contract with the BOP required it to comply with all OSHA standards and
to make sure that its subcontractors complied with OSHA requirements (Exh. C-W). ‘I&
contract provided, in pertinent part:
SAFETY AND HEALTH
Contractors shall be required to comply with the regulations issued by the
Secretary of Labor . . . entitled “Safety and Health Regulations for
Construction” (29 C.F.R. Part 1926).
***
The contractor [Metric] shall be responsible for its subcontractors’ compliance
with this clause.
***
Contractor Responsibility: The Contractor shall assume full responsibility and
liability for compliance with all applicable regulations pertaining to the health
and safety of personnel during the execution of work . . . .
The citations emanate from a general schedule inspection commenced on April 14,
1992, by Compliance Officer John Madden (Tr. 12). The project, a BOP prison, had been
under construction for approximately a year (Tr. 12-13). Madden arrived at the site on
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April 14,1992, met with representatives of BOP and Metric, and spent the remainder of the
day examinin g paperwork. He began the actual walk-around on April 14 but terminated it
due to unusually low activity (Tr. 79-80; 88-91). He returned in May accompanied with
Compliance Officer Luis Ramirez and completed the inspection. BOP construction
inspector Phillip Knight and Metric superintendent Ty Dyar participated in the walk-around.
Metric’s regional safety supervisor Brian Peterson and project manager Michael Adams also
participated (Tr. 80-81).
Eight masonry subcontractors were at the site. They employed 150 to 200 persons
(Exh. R-13; Tr. 334-336). A number of these masonry subcontractors were small
disadvantaged firms who had difficulty in providing the safety equipment as required by their
contract (Exhs. R-12, R-13; Tr. 334-336). Metric purchased and provided safety equipment
for the masonry subcontractors without charge despite the subcontractors’ own contractual
obligation to do so. Metric purchased items such as scaffolding, planking, adjustable jacks
and baseplates (Tr. 336337). Metric also provided safety training to the employees of the
subcontractors.
BURDEN OF PROOF
Multi-employer construction sites involve a prime or general contractor and various
subcontractors. In multi-employer situations, two or more employers may be cited for the
same offense. The determination is primarily related to control and exposure. In most
instances, the prime contractor has control but has no exposed employees.
In order to establish a violation of a standard, the Secretary must show that the
employer knew or, with the exercise of reasonable diligence, could have known of the
violative condition. Onnet Cop., 14 BNA OSHC 2134, 2135, 1991 CCH OSHD II 29,254,
p. 39,199 (No. 85-531, 1991). The Secretary submits Metric failed to exercise reasonable
diligence in satisfying OSHA standards. Metric was responsible for safety at the site and
should have been reasonably expected to detect the violations. It does not dispute this
responsibility but contends that it did not know and should not have been expected to know
of the violations.
Metric concedes that it was responsible for compliance with OSHA standards,
including employees of subcontractors (Tr. 366, 422-423). The Secretary cites Metric’s
contractual obligation to assume safety liability (Exh. C-25). He states that the Commission
has recognized that where “an employer is in control of an area and responsible for its
maintenance, the Secretary need only show that ‘a hazard has been committed and that the
area of the hazard was accessible to the employees of the cited employer or those of other
employers engaged in a common undhtding9.‘9 (Emphasis added) Pace Construction Corp.,
13 BNA OSHC 1282,1987 CCH OSHD 127,889 (No. 86517, 1987), ajf’d per curium, 840
F.2d 24 (11th Cir. 1988). The Secretary believes his burden has been satisfied.
RESPONSIBILITIES OF
GENERAL CONTRACTOR
The position taken by the Secretary has the effect of holding a general contractor
liable for violative acts of employees’ subcontractors regardless of (1) whether the general
contractor knew or could have reasonably known of the violative conditions, (2) whether the
general contractor could have reasonably prevented or detected the violation, or (3) whether
the general contractor took reasonable steps to prevent or detect the violation. The
conditions were created by employees of subcontractors. They were exposed to the
conditions. The Secretary submits that Metric knew or could reasonably have known of the
violative conditions.
Metric counters that the Secretary’s argument of strict liability is misplaced. It
submits that it could not have been expected to prevent or abate by reason of its supervisory
capacity. It states that where the general contractor takes necessary steps to assure
compliance, it should not be held liable for violations by a subcontractor’s employees of an
OSHA standard. On this basis, Metric argues that it must be found to have complied with
the Act. The parties are in agreement that the violations were committed by employees of
the subcontractors and that Metric employees were not exposed to the hazards. Metric
concedes that it was responsible for compliance with OSHA standards, but submits that it
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took the necessary steps to assure compliance and should not be held accountable for the
violations.
Quoting from Grossman Steel and Aluminum Coporation, 4 BNA OSHC 1185,
1975-76 CCH OSHD 1 20,691 (No. 12775,1976), the Secretary accuses Metric of attempting
to escape liability by shifting culpability to the subcontractors. Grossman, supra, holds the
general contractor liable only for violations that “it could reasonably have been expected to
prevent or abate by reason of its supervisory capacity.”
While the Commission has held that the general contractor is responsible for
violations it controls by virtue of its supervisory authority over the site. (which was present
in this case) regardless of whether its own employees are exposed, it has disdained adoption
of the principle that the Act imposes strict liability. The court in National Realty Co., Inc.
v. OSHRC, 489 F.2d 1257 at p. 1265-66 (D.C. Cir. 1973), spoke early on this point with
respect to section 5(a)(l) and made it clear that Congress required only elimination of
preventable hazards. It concluded:
On the other hand, Congress quite clearly did not intend the general duty
clause to impose strict liability. The duty was to be an achievable one.
Congress’ language is consonant with its intent only where the “recognized”
hazard in question can be totally eliminated from a workplace. A hazard
consisting of conduct by employees, such as equipment riding, cannot,
however, be totally eliminated. A demented, suicidal, or willfully reckless
employee may on occasion circumvent the best conceived and most vigorously
enforced safety regime. This seeming dilemma is, however, soluble within the
literal structure of the general duty clause. Congress intended to require
elimination only of preventable hazards.
The goal of section 5(a)(l) is directed toward achieving preventable hazards. The standards,
for the most part, require or suggest a method of compliance. Metric advocates making a
determination based on the reasonableness of actions taken by the general contractor. Each
case must be decided on its particular facts.
SCAFFOLDING - GENERAL FACTS
This project involved the construction of 29 buildings and was located on 200 acres.
Eight masonry subcontractors were working at the site. Metric had two employees, Robert
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Brooks and Robert Harmon, conducting periodic safety inspections of the jobsite (Tr. 324,
332,413,416). They reported their findings to the project manager, Mike Adams, who would
inform the area superintendent. If they discovered an imminent danger situation, they were
authorized to stop the work, and did so on numerous occasions (Tr. 416). Brian Peterson,
regional safety manager, conducted a monthly inspection. The area superintendents and the
project superintendent supposedly conducted daily inspections of the jobsite.
Metric contends that the job of inspecting the scaffolding was complicated by the
method of laying blocks and the limited equipment the subcontractors possessed. The
majority of the walls were laid in seven layers (Tr. 338,450). Metric crews would grout the
wall, which could take up to a week or more (Tr. 339). In the meantime, the masonry
subcontractors would be required to work on another wall. They would “canniialize” the
inactive scaffold or they would move the scaffold (Tr. 339,451). While Metric managers did
not assume that subcontractors’ employees were working on a particular scaffold (I?. 451),
they had to know which scaffold was being used by which subcontractor.
Prior to the inspection and on more than one occasion, Metric had remuved
employees from the scaffolds (Tr. 332,387). Metric’s representative had difficulty with two
crews of Reliable and Lanier and instructed them regarding safe practices on scaffolding (Tr.
388). Where Metric believed a scaffold was unsafe, the subcontractor would be instructed
to dismantle it. Fred Allmand, an area superintendent for Metric, ordered Cherokee
Masonry to remove the scaffold on the loading dock at the CU building. Metric was cited
for the condition of the scaffold while it was partially dismantled, even though it had taken
some action. Metric was cited because the condition was not corrected. Eventually, two
subcontractors were ordered off the job (Exhs. R-12, R-13).
The masonry subcontractors were “fully responsrble for all OSHA-approved
scaffolding, including safety rails, walkboards, toeboards, and ladders” (Schedule A of Exhs.
R-12, R-13; Tr. 334-335). The masonry subcontractors were deficient in their need for safety
equipment. Metric provided them with the necessary equipment--scaffolding planking,
adjustable jacks, baseplates, and mud sills (Tr. 336337).
Metric conducted numerous meetings on safety training for the subcontractors and
their employees. Mike Adams and Ty Dyar held weekly subcontractor meetings with the
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subcontractors on the job, and safety was discussed each week. On December 7, 1991,
scaffolding was discussed because the project would require heavy use of scaffolds. On
January 28, 1992, scaffolding was the safety topic of the subcontractors’ meeting and again
on February 4 and March 24, 1992 (Tr. 325-326). Metric also conducted weekly safety
training for its employees and the employees of subcontractors who did not conduct their
own safety training. All employees were required to attend weekly safety training sessions.
THE MULTI-EMPLOYER DEFENSE
Multi-employer worksites are common in the construction industry, and most of the
cases involving the liability of employers on multi-employer worksites involve construction
work. In early cases, the Commission held that each employer was responsrble for the safety
of its own employees and no others. An employer who created a hazardous condition was
not responsible for the exposure of employees of another employer to the hazard.
Employers were, however, liable for the exposure of their own employees to hazardous
conditions even if they did not create or control those conditions. Reviewing courts rejected
the idea that liability under section 5(a)(2) should be based solely on the employment
relationship.
In light of the reversals by reviewing courts, a more enlightened Commission
reconsidered its early decisions and adopted rules for apportioning liability on
multi-employer construction sites that conformed, in most respects, to the decisions of the
circuit court in Uhderhill Construction Cop, 573 F.2d 1032 (2d Cir. 1975), and
Anning-Johnson Co., 516 F.2d 1081 (7th Cir. 1975). The Commission held that the general
contractor had primary responsl%ility for the safety of its employees and would generally be
held responsible for violations to which its employees were exposed, even if another
employer were contractually responsible for providing the necessary protection. The
Commission created a two-pronged affirmative defense by which an employer could avoid
liability. An employer that did not create or control a violation could avoid liability by
proving either that it took whatever steps were reasonable under the circumstances to
protect its employees against the hazard or that it lacked the expertise to recognize the
condition as hazardous. The Commission applied these rules to serious and “other” than
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serious violations, rejecting the distinction between these classes of violations drawn by the
Seventh Circuit in Arming-Johnson Co. v. OSHRC, supra.
The Commission adopted the holding of Brennan v. OSHRC (Underhill Construction
Co&, supra, that an employer who creates or controls a hazard is liable even if its own
employees are not exposed. Grossman Steel & Aluminum Corp., supra, note 65 at 1188;
Anning-Johnson Co., supra, n. 65 at 1199. The Commission also held that a general
contractor on a construction site is responsible for violations it controls by virtue of its
supervisory authority over the site.
The Commission made clear its position regarding responsibility for safety on a
multi-employer worksite. Grossman Steel & Aluminum Cop., 4 BNA OSHC 1185, 1188,
1975-76 CCH OSHD ll 20,691, p. 24,791 (No. 12775, 1976). Anning-Johnson Co., supm, at
p. 24,784, echoed that principle:
[Tlypically a general contractor on a multiple employer project possesses
sufficient control over the entire worksite to give rise to a duty under section
5(a)(2) of the Act either to comply fully with the standards or to take the
necessary steps to assure compliance.
Reviewing courts approved the Commission’s approach.
The rule adopted by the Commission is not a panacea but is predicated on the
principle that is a fair way to determine liability. As stated in Grossman Steel &Aluminum
Corp., supra, “the general contractor is well situated to obtain abatement of hazards, either
through its own resources or through its supervisory role with respect to other contractors
. . . it is therefore reasonable to expect the general contractor to assure compliance with the
standards insofar as all employees on the site are affected.” Id. at 1188. It would be grossly
unfair to hold an employer liable for employee action which may be a deviation from the
normal. Metric possessed supervisory control over the site. The judge must consider all
factors. If a condition is created or controlled by an employer, the decision hinges primarily
upon whether that employer has the ability and authority to abate the hazard for “it would
be unduly burdensome to require particular crafts to correct violations for which they have
no expertise . . . .” Id.
The Secretary cites several cases in which employees of subcontractors were exposed
and liability was attributed to the general contractor. Acommon construction site involving
several employers presents a dilemma to the Secretary. His job is to ensure that the law is
fulfilled and that the working conditions are safe and healthful. He has scarce resources and
must allocate the resources frugally. It would be advantageous to hold the general
contractor liable for any violation discovered. The Secretary is aware that the general
contractor, having supervisory control at the site, has within its discretion the right to take
action against a subcontractor who fails to comply with the standards. It would be easier for
enforcement of the Act if the general contractor could not absolve itself of the liability. The
Secretary would be able to achieve compliance with the Act without trying to determine
what subcontractor is at fault. This is not the approach set forth by the Commission in
Arming-Johnson, supra. Those cases present a sound approach to a multi-employer
construction site. There is no basis for change.
The general contractor has, in essence, been deemed liable by the Commission but
is afforded an opportunity to absolve itself of culpability by affirmatively pleading and
proving a defense. The standard imposed by the Commission is a reasonable one. It will
not hold a general contractor liable for violations which it could not be reasonably expected
to detect or prevent. In mu&on Construction Co., 4 BNA OSHC 1759, 1976-77 CCH
OSHD ll 21,185 (No. 765, 1976), afd, 566 F.2d 5% (8th Cir. 1977), it was believed to be
manifestly unfair to place liability upon a general contractor when it had no knowledge of
the violation. Metric has the burden to show that it had no control over the abatement or
prevention of the conditions.
The Secretary raises some preliminary questions. It argues that Metric assumed
liability through the contract with the subcontractors, which provides that Metric will assume
all liabilities of the subcontractors. This is reflected in the contract, which exists between
Metric and its subcontractors. OSHA was not a party to the contract and is not bound by
its terms. The Act does not allow an employer to contract his liability to another employer.
Such agreements are not binding on OSHA. It would be impossible to obtain enforcement
of the Act if an employee were allowed to contract his liability to someone else.
The Secretary argues that Metric was actually the employer of the employees of the
subcontractors. This position presents no dilemma. The evidence fails to justify it. There
is no evidence to support “piercing the corporate veil” of any subcontractor. The fact that
employees of subcontractors might attend safety meetings given by the general contractor
does not make such persons employees of the general contractor (Tr. 25). There is no basis
to challenge the fact that the subcontractors were independent contractors. There is nothing
to indicate that employees of subcontractors were subject to control by Metric (Tr. 26-27)
other than a general control which is assumed where a subcontractor works under the
general contractor. It has to be satisfied with the subcontractor’s work.
Metric’s primary position connotes a belief that the site represented a safe workplace
and that it had done everything reasonable within its power to make it a safe place.
Whether the conduct of the general contractor is reasonable must be determined fkom the
individual facts of each case. The general contractor should contemplate what the word
“reasonable” implies. Metric claims it had no knowledge of the violations. This may be
true, but an employer cannot ignore its worksite and then plead ignorance of knowledge of
the conditions. If Metric had used reasonable diligence, it would have discovered the
violations. The violations existed in open territory and should have been observed by the
inspectors.
While Metric maintained an inspection program, it is noted that each of the
employees assigned to conduct inspections also had other duties to perform. There is no
indication as to the amount of time expended on safety matters. The number of hours and
the quality of time devoted to safety have an added importance when the site is large. The
violations were too numerous to assume that the site was adequately inspected. In the
absence of the work records of the inspectors, it is impossible to ascertain if Metric
employed sufficient personnel to adequately inspect the worksite. In view of numerous
violations, it must be determined that the duties performed by these gentlemen permitted
little time for safety matters.
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Metric has failed to establish that its conduct was reasonable. The merits of each
allegation must be decided on the facts.
Metric had five people conducting some type of inspection. Robert Brooks and
Robert Harmon conducted periodic safety inspections. A monthly inspection was made by
the regional safety manager whenever he visited the site. The area superintendent and
project superintendent conducted daily inspections (Tr. 332,384-385,412-413,415). All the
violations were in plain view (Tr. 35), and on some scaffolds employees were actually
working. Metric personnel conducting the inspections either observed or should have
observed the violations. All of the scaffolds were erected by subcontractors. Metric agrees
that it possessed the power and authority to correct the conditions.
THE SERIOUS ALLEGATIONS
Item 1 - Alleged Violation of 5 1926.451(a)(2)
The first item pertains to seven alleged violations of 5 1926.451(a)(2), which states:
The footing or anchorage for scaffolds shall be sound, rigid and capable of
carrying the maximum intended load without settling or displacement.
Unstable objects such as barrels, boxes, loose bricks, or concrete blocks, shall
not be used to support scaffolds or planks.
Sub-item (a) involved a tubular welded frame scaffold at the loading dock at the
southeast end of the CU building. Two scaffold legs overhanging the dock deck were atop
a structure constructed of concrete blocks and boards thrown across a small ditch (Exh. C-l;
Tr. 14). Madden’s observation is supported by the photographs. Sam Hamilton who, at the
time of the inspection worked for Reliable Masonry, a subcontractor of Metric, testified that
the photographs accurately represent the basing of the scaffold when in use (Tr. 260-265).
Metric construction superintendent Fred Allmand, who supervised the area including this
building, testified that employees worked on an outrigger’ which was connected to, and part
of, the scaffold (Tr. 488-496). The basing affected both the platform and the outrigger.
Phillip Knight, BOP’s construction inspector who inspected the site daily, observed the
’ In fact, he originally stated that he assumed employees did work on the platform shown in the photographs
(Tr. 489) but later stated they only worked on the outrigger (Tr. 490-491).
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scaffold in this condition for at least a month. He saw an employee working on it in this
condition (Tr. 1941%,198,225,228-229). He was there specifically to inspect the masonry
work and had to use the scaffold. Metric did not dispute this fact.
Metric made much of the fact that Phillip Knight did not know for which
subcontractor the employee worked (Tr. 225-228). His lack of knowledge on this issue is
neither relevant nor surprising because BOP’s contract was with Metric. Metric project
manager Michael Adams stated that even though Kirlin subcontracted its digging work,
Metric considered it to be Kirlin’s work because its contract was with Kirlin (Tr. 359).
Phillip Knight stated that the employee was probably a structural steel employee (Tr. 227),
and Metric stated that it had structural steel subcontractors at the site (Tr. 317). Employees
were exposed to the risk of the unstable basing.
The standard requires that the footing to all scaffolds “be sound, rigid, and capable
of carrying the intended load without settling or displacement.” The standard specifies that
concrete blocks are unstable objects and are not to be used. A scaffold at the loading dock
at the south end of the CU building had two legs hanging over the dock that were supported
bv a plank laid across concrete blocks (Exh. C-l: Tr. 14). The photograph shows a scaffold
d a \ I / I w 1
that is supported by a board which in turn is supported by concrete blocks. Employees were
exposed to the conditions.
Metric contends that the scaffold had been directed for dismantling several days
before OSHA came on the site. Fred Allmand, area superintendent for Metric who was
responsible for supervision of the CU building, testified that the bottom portion of the
scaffold had no crossbracing, that it was unsafe, and that he was told to take it down (Tr.
488-489). This is in contrast to the testimony of Madden who stated he observed employees
using the scaffold. The testimony of Sam Hamilton and Philip Knight support Madden’s
testimony. Allmand stated that he assumed that employees used the scaffold before he told
them to get off (Tr. 489). Knight indicated that he inspected the site daily for BOP and that
the site was in the same condition before Madden arrived on the scene (Tr. 197). He
believed that conditions had existed for at least a month before Madden’s arrival. The
credibility determination is resolved in favor of Madden. The testimony of Hamilton and
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Knight is considered to be in support of Madden. The testimony of Allmand is considered
erroneous. The violation is affirmed.
Sub-item (b) involved a tubular welded frame scaffold at the east end of Building A-4.
The scaffold legs rested on scrap lumber, some of which were not in contact with the ground
(Tr. 16). Employees of Block and Brick, a subcontractor, were working from the scaffold
(Exh. C-2, top photograph; Tr. 17). Metric considered the base to be stable (Exh. R-20; Tr.
451-452). Sub-item (b) was cited because the board on which the scaffold rested did not
make full contact with the ground. It is difficult to ascertain from the photograph whether
the scrap lumber being used was in full contact with the ground. Madden testified it was
not. Metric disputes the determination. The Secretary has the burden of proof. The
testimony is disputed and the photographs do not clarify the facts. The Secretary has failed
to meet its burden of proof.
Sub-item (c) involved a tubular welded frame scaffold at the west end of Building
A-4. The scaffold legs on the south end rested on a cracked board. Part of the board was
not in contact with the ground (Exh. C-2, bottom photograph; Tr. 18-19). Madden saw a
Block and Brick employee working on this scaffold (Tr. 19). Metric argues that the cracked
board was not unstable. The board was split along the center. It was a 2- by 12-inch board.
A 2- by 124nch board, when cut in two, creates a 2- by &inch board, which is a “proper”
base (Tr. 101~103,390.395,454). The Secretary argues that cracks in a board are indicative
of weakness, which means that the board is less likely to be able to support the weight of
the scaffold. The standard specifically states that the basing must be such that it does not
get settled or displaced. The weight of the scaffold caused the base to settle (Tr. 101-103).
The amount of settlement does not affect the integrity of the scaffold.
The legs of the scaffold were resting on a long board that was cracked along the
center. Metric points to notes made by Madden “that there was an unlikely probability that
[the] board would break and the scaffold was rigid in most cases.” He conceded that a
board 2 by 3 inches was adequate to support a scaffold. Metric states that the standard does
not define lumber as an unstable object. There is no question that there is a split in the
board. At the same time, the board is of sufficient width to stabilize the legs of the scaffold.
13
Due to the width of the board, the split does not mean that the board is unstable. Sub-item
(c) is vacated.
The tubular welded frame at the north end of Building A-4 is alleged to have its legs
resting on scrap lumber which was not in full contact with the ground. The Secretary failed
to introduce evidence in support of the allegation. Sub-item (d) is vacated for lack of
evidence.
Sub-item (e) involved a tubular welded frame scaffold at the southeast comer of
Building A-3. The scaffold was supported by scrap lumber, some of which cracked, and
some of which were not in full contact with the ground (Exh. C-3; Tr. 20). An employee of
Block and Brick was on the scaffold (Exh. C-26; Tr. 21, 167-168). Metric submits that the
scaffold was partially dismantled and, therefore, it had no reason to believe employees would
use it (Tr. 461). The Secretary argues that if the work were completed, as Metric claims,
employees had to have been exposed to the unstable basing.
The photographs (Exh. C-3) introduced in support of the allegations show legs of the
scaffold resting on scrap lumber. The standard does not prohibit the use of scrap lumber.
The Secretary must show the scrap lumber does not provide a sound and rigid footing
without settling or displacement. The evidence is insufficient (Exh. C-3, second photo) to
establish a violation. The allegation is vacated.
Sub-item (f) involved a tubular welded frame scaffold on the east and west ends of
Building A-3. This scaffold, constructed by Anderson Masonry, was resting on top of
concrete blocks and scrap lumber (Exh. C-4; Tr. 22-23). One scaffold leg rested on a piece
of lumber which had an empty space between it and the ground (Exh. C-4, bottom
photograph). Phillip Knight testified that the conditions shown in this photograph were
common throughout the site (Tr. 198-200). The Secretary states that the mere use of
concrete blocks, let alone the other problems with the basing, makes the condition a
violation of the standard.
The scaffold was in plain view (Tr. 35). At the time the photograph was taken, the
height of the block that had been laid was about 40 inches (Tr. 107). Metric apparently
introduced this fact to demonstrate that the block work could have been done from the
ground rather than from the scaffold. This may be true. The basing was already down, as
14
was the scaffold, and additional work needed to be done on the building. This means that
employees would have to come back to continue the work. Metric admitted that when
erecting a scaffold, the basing is put down first and that, in the normal course of events, the
basing would not be subsequently changed (Tr. 364-265, 406). While the wall had not
progressed to a height requiring a scaffold, it was erected and employees had to work under
it. “[Alccess to the violative condition, not actual exposure, is the test.” Flint Engineering
and Constmction Co., 15 BNA OSHC 1946,1992 CCH OSHD 129,923 (No. 90-2873,1992),
at p. 40,854; OtisElevator Co., 6 BNA OSHC 2048,1978 CCH OSHD 123,135 (No. 16057,
1978). Employees were exposed to the unstable basing and the falling scaffold. The
allegation is affirmed.
Sub-item (g) involved a tubular welded frame scaffolding on the west, north and east
sides of Building B. The scaffold was erected on top of a patchwork of concrete block,
cracked boards, spare wood, and some bricks (Exhs. C-5, C-7, R-4, R-6; Tr. 31). Work had
been conducted on the building, and the scaffold was available for employee use (Exhs. C-5,
C-7; Tr. 32). Metric again claims that the work had not been done and did not need to be
done from the scaffold (Tr. 341-342, 361-362). The photographs reveal that the masonry
work had not been completed. Knight, the BOP inspector, testified that he saw employees
using the scaffold reflected in Exhibit C-6 (Tr. 242). He stated that the conditions seen in
Exhibits C-5 and C-7 were common throughout the worksite before OSHA’s inspection. He
observed the condition in his daily inspections (Tr. 198200). The allegation is affirmed.
Citations are duplicative where they involve substantially the same conduct and may
be abated by the same method. The two standards could be met by one abatement method.
Madden acknowledged on cross-examination that the use of adjustable screws and mud sills
could be used to abate items 1 and 5 (Tr. 126128). Metric states that it is undisputed that
these items are duplicative and, should the Commission affirm any allegations in item 1 or
5, one item should be dismissed.
Item 2 - Alleged Violation of S 1926.45l(a)(lOl
The Secretary alleges that Metric was in violation of 8 1926.451(a)( 10). This item
refers to three separate scaffolds. The standard requires that “all planking shall be Scaffold
15
Grades, or equivalent, as recognized by approved grading rules for the species of wood
used.” Scaffold grade lumber, which is usually marked as such and can be obtained from
most lumber yards, is stronger than other lumber such as scrap (Tr. 36).
Sub-item (a) involved the scaffold located at the southeast end of the CU building.
The photographs show several planks which Madden explained were not scaffold grade
lumber (Tr. 16-17). Some of the boards were cracked and slightly warped (Exh. C-8; Tr.
37). Madden observed employees using the scaffold (Tr. 38). Knight testified that the
scaffold had been in this condition for at least a month and that he observed an employee
using it to fix some angle iron (Tr. 198,225,228-229). Metric did not dispute this fact. The
allegation is affirmed.
Sub-item (b) involved a tubular welded frame scaffold on the southeast comer of
Building A-3. The Secretary alleges that many of the boards were cracked, slightly warped,
and were not scaffold grade (Exh. C-8; Tr. 37-38). An employee of Block and Brick used
this scaffold (Exh. C-26; Tr. 37-38, 167-168). Whether anyone from Metric was with him
when he saw this employee (Tr. 124) is irrelevant. This observation did not occur during the
walk-around but when the compliance officer first came to the site and went to see the BOP
representative (Tr. 89-90, 124). The crucial fact is that this employee was there and must
have been there for a reason. Metric states that it conducted daily inspections. If
reasonable diligence had been used, Metric should have observed the employees. Metric
project manager Michael Adams claims that he was not aware of these cracked boards until
he saw the photographs (Tr. 342). Someone from Metric shoed have seen them. The
boards were in plain view. The evidence does not establish that the lumber was scaffold
grade. The allegation is affirmed.
Sub-item (c) involved a tubular welded frame scaffold located inside the north comer
of Building A-2. It had a cracked board which was not evenly shaped and two other boards
which supported a piece of plywood (Exh. C-9; Tr. 38). An employee of Block and Brick
was on the scaffold. His foot can be seen in the photograph (Exh. C-9; Tr. 3839). Metric
contends that this particular scaffold, which was located by a stairwell, would only have been
up for a day or two or “a couple of days at most” (Tr. 343, 455). It did not state that it
would be up for less than a day. Metric should have noticed the scaffold when it conducted
16
daily inspections. Madden testified that when employees work on planking that is not
scaffold grade, especially p@vood and cracked planks, the weight on the scaffold could cause
the planking to break, thereby causing the employees to fall. The likely result of that is
multiple injuries (Tr. 39). See Kizutson Constnrction Co., 4 BNA OSHC 1759 (No. 765,
1976), afd, 6 BNA OSHC 1077 (8th Cir. 1977). The allegation is affirmed.
Metric did not dispute that the lumber used in all of these instances was not scaffold
grade. This condition [using cracked boards] was typical on this site according to BOP
inspector Knight (Tr. 200-201). The violations were in plain view. Metric either knew or
should have known of these violations since it supposedly conducted daily safety inspections.
The violation is affirmed.
Item 3 - Alleged Violation of (j 1926.451(a)(13)
Item 3 alleges four violations of 6 1926.451(a)( 13), which requires that “[a]n access
ladder or equivalent safe access [to work platforms] shall be provided.” The Secretary
determined a lack of safe access to the working level.
Sub-item (a) involved a tubular welded frame scaffold located at the east end of
Building A-4. The scaffold contained five bucks. The ladder reached the fourth buck. There
was no ladder between the fourth and fifth bucks (Exh. C-10). The scaffold was 27 feet
high. Employees of Block and Brick were working on the fifth buck. They gained access
to the platform by climbing the scaffold (Tr. 40-41). Knight observed the scaffold erected
in that condition for at least a month (Tr. 199-200). Metric claims that at least in some
places the fifth buck was just in the process of being built (Tr. 344,3%). Even if this were
true, this does not explain why there is no ladder to that platform. Metric admits that
employees needed to stand on the platform to complete the building (Tr. 406-407). They
needed a ladder or equivalent safe means of access. Climbing the scaffold is not equivalent
to gaining access by ladder. The allegation is affirmed.
Sub-item (b) pertains to a tubular welded frame scaffold at the west end of Building
A-4. An employee of Block and Brick was working on the platform, and no ladder or
stairway was available for access (Exh. C-11; Tr. 41). The employee gained access to the
scaffold by climbing through a window (Tr. 41). A window is not a safe access (Tr. 117).
17
Metric denies knowledge of the condition. The employee, who was cleaning mortar around
the window, could have done the work from the inside (Tr. 466467). However, the easiest
way to do the work is “to sit right there where he’s [the employee in the photograph] sitting
and scrape it off’ (Tr. 475). Metric could and should have anticipated that the employee
would do this work from the platform rather than from the inside. The allegation is
affirmed.
Sub-item (c) involved a scaffold at the left wing of Building A-2. A Johnson Masonry
employee was observed by Compliance Officer Luis Ramirez descending the scaffold, which
is reflected in the photograph (Exh. C-12). Two employees were working on the scaffold
from which the employee in the photograph was descending (Exh. C-12; Tr. 180-181).
Ramirez testified that the Metric superintendent who accompanied him on the inspection
informed him that this condition was “all over the job site” (Tr. 183). This is consistent with
the testimony of Metric’s regional safety supervisor Brian Peterson, project manager Mkhael
Adams, and project superintendent Ty Dyar, who testified that they believed this type of
access was safe and in compliance with the standard (Tr. 389.390,402-403, 457). Peterson
would not have stopped this practice if he had observed it (Tr. 402). He believed the
practice was safe. The allegation is affirmed.
Sub-item (d) involved a tubular welded frame scaffold at the south end of the H, I,
J, K and L building areas. Employees of Gray Construction worked from the platform of
the scaffold. An employee was descending the scaffold (Exh. C-13; Tr. 42). Knight testified
that this was the first day the scaffold was in use (Tr. 253). Metric believed this method of
access was safe and complied with the standard. It does not satisfy the requirements of the
standard. The allegation is affirmed.
The scaffolds varied in height from 6 feet to 27 feet. Falling from such heights could
result in multiple injuries or death. The hazard of falling when there is no safe means of
access, such as a ladder, is much greater than if a ladder is provided. Employees will
probably ascend the scaffold by unsafe means if no ladder is available (Tr. 42-45).
The compliance officer specifically discussed with Ty Dyar the scaffold at issue in
sub-item (a) of this item and pointed out the problems to him. The next day the scaffold
18
was still in the same condition (Tr. 43-44). Metric took no action. The violations were in
plain view. Metric knew or should have known about them in its daily inspections.
Metric does not deny the conditions but claims that it is permissible to have
employees ascend the scaffold (Tr. 389,402.403,457). Metric stressed that the “rungs” are
evenly spaced (Tr. 403). The Secretary counters by pointing out that the problem is gaining
access to the scaffold frame and to the platform, not going from “rung” to “rung.” As
shown in Exhibit C-12, the employee, in order to get from the “built in ladder” to the
platform, would have to twist himself around and swing over. It was not possible to access
at the end. The boards were too long. Employees were exposed to a fall hazard of over
12 feet. This is a serious violation of the standard. Btickjfeld Builders, Inc., 15 BNA OSHC
1940, 1941, 1992 CCH OSHD 129,795 (No. 90-3219, 1992).
Item 4 - Alleged Violation of 6 1926.45 l(a)(14)
Item 4 cites two conditions which were alleged to be violations of 0 1926.451(a)(14),
which requires that “[slcaffold planks be extended over their end supports not less than 6
inches nor more than 12 inches.”
Sub-item (a) involved the same scaffold as in item l(a). The scaffold and planking
were approximately 3 to 4 inches from the wall (Tr. 45-46). Hamilton testified that he
worked on another part of the scaffold which was connected to it (Tr. 261-262). Allmand
testified that employees worked on an outrigger which connected to the scaffold (Tr. 4929
496). Knight observed an employee working on the platform in this condition in order to
bolt some angle iron (Tr. 198, 225, 228229). Employees were exposed to the risk of an
improper planking base. The scaffold planks were not extended as required by the standard.
The allegation is affirmed.
Sub-item (b) involved a tubular welded frame scaffold at the southeast comer of
Building A-3 where the boards extended over 12 inches at two places (Exh. C-14; Tr. 46).
Knight had seen this scaffold condition previously (Tr. 203), and Madden observed a Block
and Brick employee on it (Tr. 4647). Even if this scaffold were in the process of being
dismantled, as Metric claims (Tr. 345), this does not negate the violations. Metric admitted
that employees had to go onto the scaffold in order to dismantle it (Tr. 407). They would
.
19
have been exposed to the over-extended planking. As shown by the photographs (E&
C-14), work had been done along the entire platform.
Madden testified that if planking is extended less than 6 inches, vibrations in the
scaffold created during use can cause the planking to come off, thereby causing employees
to fall. If the scaffold planks are over-extended, they can tip over when an employee walks
too far on the planks. Such a fall would likely cause multiple injuries (Tr. 47) and presented
a serious hazard.
The violations were in plain view. Metric claims to have made daily safety
inspections. It either knew of these violations or should have known about them. The
allegation is affirmed.
Item 5 - Alleged Violation of d 1926.451(d)(4)
Item 5 involved five instances of alleged violations of 0 1926.451(d)(4), which requires
that “[s]caffold legs shall be set on adjustable bases or plain bases placed on mud sills or
other foundations adequate to support the maximum rated loads.” The Secretary cited
Metric for violation of 0 1926.451(a)(2), alleging that unstable objects were used to support
the scaffolds (item 1) and for violation of 8 1926.451(d)(4), alleging that the scaffold legs
were not set on an adjustable base or plain base (item 5). Instances (b) through (e) of item
5 relate to the same scaffolds cited in item 1.
Sub-item (a) involved a scaffold erected by Devore Masonry at the west end of
Building CH-2. The scaffold legs were placed on the dirt, and some of them were beginning
to dig into the soil (Exh. C-15; Tr. 48-49). The bases were not adjustable. Madden
presumed employees used the scaffold (Tr. 48). The scaffold was in plain view (Tr. 49).
There was planking on top of the scaffold, indicating that it was built for work (Tr. 60). The
blocking work had almost been completed to a point above the scaffold (Tr. 61). Employees
generally laid block from the scaffold (Exh. C-15; Tr. 60-61). Even if this scaffold had just
been erected in some places, as Metric contends (Tr. 347, 480), the Secretary argues that
this does not negate the existence of the violations. On the contrary, the Secretary contends
that Metric expected employees to use it in the near future. His argument assumes
employees were exposed to improper basing. Work had ceased in the area. Ty Dyar stated
20
that the condition of the scaffold was corrected before work resumed (Tr. 463). The
Secretary assumed exposure. The allegation is vacated.
Sub-item (b) pertains to the same scaffold found in violation of sub-item (a) of
item 1. Some of the scaffold legs had no bases or mud sills. The end of the scaffold was
sitting on the boards off the dock area, and the legs were digging into the wood (Exh. C-1;
Tr. 50). Allmand, Metric’s superintendent, testified that he had been instructed to dismantle
the scaffold (Tr. 488-491) because it was unsafe (Tr. 482). He assumed employees used it
but had no direct knowledge of its use (Tr. 489). Reliance (now Metric) employee Sam
Hamilton testified that the basing was different when he worked on this scaffold (Tr. 260-
265). Knight, BOP’s construction inspector who was on the site daily, testified that in
general the scaffold was in the same condition for at least a month. He observed an
employee working on it (Exh. C-l; Tr. 194, 198, 225, 228-229). Madden interviewed an
employee who stated he worked on the scaffold. Employees were exposed to the hazards.
The allegation is affirmed.
Sub-item (c) involved a scaffold at the west end of Building A-4 where plain scaffold
legs rested on a cracked board (Exh. C-2, bottom photograph; Tr. 50). The compliance
officer saw Block and Brick employees working from the platform of the scaffold (Tr. 51).
The fact that the board is split does not automatically violate any standard. The size of the
crack, location, and width of the board must be considered. The split has been determined
not to be in violation of fj 1926.451(a)(2). The Secretary has proved that the board was
split, but this has not proved that the scaffold was unstable or that the it would not support
the maximum rated load. This allegation pertains to a lack of an adjustable base or mud
sills. The allegation is affirmed. Metric has not shown compliance.
Sub-item (d) involved a scaffold on the east and west ends of Building A-3. Some
scaffold legs were standing in the dirt without any bases and were sinking into the ground
(Exh. C-16; Tr. 51). The scaffold was in plain view. Madden observed an employee doing
touch-up work on the surface of the west end of the building (Tr. 63). The scaffold shown
in the photograph (Exh. C-16) was erected by Anderson Masonry (Tr. 51). Metric claims
that no work had begun (Tr. 464). It was available for use by employees. Metric admitted
21
that the basing is the first thing that goes down when erecting a scaffold and that once down,
it would not normally be changed (Tr. 364-365, 406). The allegation is affirmed.
Sub-item (e) involved a scaffold from which employees of Cherokee Masonry worked,
and surrounded the north, west and east sides of Building B-4. It was in plain view. Some
of the scaffold legs were supported by a cracked board which was resting on two concrete
blocks. The scaffold legs have no adjustable base or plain base and mud sills (Exh. C-17;
Tr. 52). Several concrete blocks and some bricks were on the work platform of the same
type that is seen about three quarters of the way up the wall (Tr. 64). Madden noticed a
Block and Brick employee working on it. The allegation is affirmed.
Sub-items (b) through (e) involved scaffolds which have been found by the Secretary
in violation of 0 1926.451(a)(2). Th e violations contained in sub-items (b) through (e) can
be satisfied by the same method of abatement. Madden admitted that the use of adjustable
bases and mud sills could be used to abate both items. Metric submits that where a
violation has a duplicate method of abatement, there should be only one violation.
Compliance with both standards could have been abated by one method.
Sub-item (b) of item 5 involved the same scaffold referred to in sub-item (a) of
item 1. Item l(a) was affirmed. Sub-item (c) involves the same scaffold in sub-item (c) of
item 1. This item was vacated. Sub-item (d) involves the same scaffold of sub-item (f) of
item 1. Sub-item l(f) was affirmed. Sub-item (e) involves the same scaffold involved in sub-
item (g) of item 1. This item was affirmed. The scaffolds involved in sub-items (b), (d) and
(e) have already been affirmed. Since the method of abatement is duplicate, the violations
determined in sub-items (b), (d) and ( e ) are vacated. The scaffold involved in sub-item (c)
was not determined to be in violation if item 1, and the violation for this sub-item is
affirmed.
Item 6 - Alleged Violation of d 1926.45l(d)(lOl
Item 6 alleges four violations of 5 1926.451(d)( lo), which requires that:
Guardrails made of lumber, not less than 2 x 4 inches (or other material
providing equivalent protection), and approximately 42 inches high, with a
midrail of 1 x 6 inch lumber (or other material providing equivalent
22
protection), and toeboards, 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 . . . .
Sub-item (a) involved a scaffold at the east end of Building A-4 where Block and
Brick employees were working (Tr. 54-55). The photographs clearly show the violations.
One photograph shows employees working in an area without guardrails (Exh. C-18).
Another photograph shows an employee working at the end, on the left-hand side of the
photograph, without sufficient guarding (Exh. C-18). The allegation is affirmed.
Sub-item (b) involved a scaffold at the west end of Building A-4. This scaffold was
over 12 feet high and had no guardrails. A Block and Brick employee was on the scaffold
(Exh. C-11; Tr. 55). Metric claims that there was no reason for this employee to be at this
location because he could have done the work from the inside (Tr. 351). Dyar admitted that
it was easier to work from the platform (Tr. 475). Metric should have expected this
exposure to occur. There are blocks on the platform (Exh. C-11; Tr. 474). The photograph
further indicates employee exposure. Metric was aware that masons were working on this
building with no handrails or at least could have, with reasonable diligence, discovered the
violative conditions. The allegation is affirmed.
Sub-item (c) involved a scaffold at the southeast comer of Building A-3. An
employee of Block and Brick was working on this scaffold. The small piece of guarding on
this scaffold was not in compliance with the standard because it had no midrail or toeboard
(Exh. C-3, top photograph, Tr. 55-56). Metric’s own documents indicate that it was aware
in mid-March that masons were working on this building without handrails. The allegation
is affirmed.
Sub-item (d) involved a scaffold at the southeast comer of the CU building.
Hamilton testified that he worked on this scaffold without toeboards. The standard applies
to outriggers. Ppamid Masonry Contractors, Inc., BNA OSHC , 1992 CCH OSHD
lI 29,679 (No. 91600, 1992). Knight testified that hesaw a person working on the scaffold
in that condition in order to fix the angle iron (Tr. 198, 225, 228-229). Metric did not
dispute this fact. Employees were exposed to the condition. The allegation is affirmed.
23
The hazard involved with these violations is that employees working close to the edge
of the scaffold could fall (Tr. 58-59). Metric had supervisors who purportedly inspected the
site on a daily basis. Metric either knew or should have known of these violations.
Madden measured the scaffolds involved and determined that except for one scaffold,
which was about 6 feet high, all the scaffolds were over 12 feet in height. The highest
scaffold was 27 feet. The Secretary contends that the hazards could cause the scaffold to
fall. Such falls, particularly from 27 feet, could result in multiple injuries and even death (Tr.
32-33). All the scaffold violations were serious.
Item 7 - Alleged Violation of (j 1926.651(‘(2)
This item pertains to four alleged violations of 8 1926.651(j)(2),which requires that
excavated or other materials or equipment be placed:
[A]t least 2 feet (.61 m) from the edge of excavations, or by the use of
retaining devices that are sufficient to prevent materials or equipment from
falling or rolling into excavations, or by a combination of both if necessary.
The first alleged violation occurred at a trench measuring 155 feet in length, 10% to
25 feet in width, and 10 feet 6 inches in depth. Employees of Kirlin Construction Company
worked in the trench (Tr. 67). Madden observed employees in the trench, and one of the
photographs shows tools at the bottom of the trench (Exh. C-22; Tr. 67). The photographs
(Exhs. C-20, C-22) show spoil piles closer than 2 feet from the edge of the trench. In some
places, the piles are literally blending into the trench. Three employees of Kirlin testified
that the photographs accurately represent the conditions of the trench as they had worked
in it. They testified that this is how the trench looked. They worked in the trench in this
condition on a daily basis for a six-month period, including the day of the inspection (Tr.
272-274, 290-291, 298299). They stated that spoil piles were frequently at the edge of the
trench (Tr. 272-273, 299-300). Employee Otis Edwin testified that the spoil piles in some
cases were above his head (Tr. 305). Employee Mike Stephens testified that the piles were
sometimes 12 to 15 feet high (Tr. 279). He also testified that Kirlin employees were never
pulled out of the trench before the day of the inspection (Tr. 273). Brian Peterson also
testified to this fact (Tr. 386, 397).
24
Metric did not dispute any of this testimony. Metric chief building engineer Saunders
stated that employees were working in the trench regularly, including at the time of the
inspection (Tr. 507-509). Metric has been cited previously for trenching violations (Tr. 79).
It should have been aware of the requirements
* of the standard. The violative conditions are
clear.
Metric claims that there were large spoil piles set back from the trench (Tr. 138,354).
The standard permits the spoil within 2 feet of the trench. There were spoil piles less than
2 feet from the trench. Metric also claims that some of those piles are about 1 foot in
height (Tr. 139-140). The standard does not limit this requirement to piles of more than 1
foot. A foot of soil falling on an employee’s head f?om over 10 feet above is a hazard. It
would add extra weight to the wall of the trench and could possibly cause cracks and fissures
in the trench.
Sub-item (b) involved a trench dug by A. D. Williams at the west end of Building A-l
where the spoil piles at the north and west ends were piled at the edge of the trench walls.
The closeness of the spoil piles to the trench is clear from the photographs (Exhs. C-21, C-
23). The trench was dug for the purpose of tying in water and fire valves or pipes (Tr. 467,
502). The photographs show pipes and valves, as well as some empty boxes at the bottom
of the trench. These are indications that employees had worked there.
The allegations are affirmed.
Item 8 - Alleged Violation of Ij 1926.651(k)(l)
Item 8 alleges a violation of 8 1926.651(k)( 1), which requires that:
[Dlaily inspections of excavations, the adjacent areas, and protective systems
shall be made by a competent person for evidence of a situation that could
have resulted in possible cave-ins, indications of failure of protective systems,
hazardous atmospheres, or other hazardous conditions.
Madden attempted to find out who the competent person was and whether the
person in fact qualified as a competent person. He asked Metric’s regional safety supervisor
Brian Peterson and project superintendent Ty Dyar about the trenches, but they were unable
to answer any of his questions. They informed him that a soil sample had been taken by the
Government before the construction (Tr. 70-73). They did not indicate that a soil expert
25
was present on the site (Tr. 171). They directed Madden to a Kirlin employee who also was
unable to answer any of his questions (Tr. 68-73, 174-177). There was no one on the site
who could answer questions regarding soil levels or testing that had to be done in order to
comply with the standard (Tr. 73-74, 174-177). Even if there had been someone who knew
what was required to be known about soils, the standard would still be violated if he did not
conduct daily inspections (Tr. 171).
Metric seemed uncertain as to whom was the competent person. Project manager
Michael Adams believes it was the “inspector” for the laboratory SM&E (Tr. 382). SM&E
had no contractual obligation to Metric (Tr. 382). He was obligated to BOP, not Metric (Tr.
369, 208). He was not required to conduct daily inspections of the trenches. His
employment was for a different purpose. It was not part of his job to do inspections of the
type required by the standard nor was it part of his job to determine whether and how to
slope a trench (Tr. 207-208). Metric also ventured the name of J. T. Gore, an employee of
Kirlin whom Metric believed was experienced in excavations as the competent person (Tr.
147, 356-358, 468-469). Metric could not say what Gore knew or did with respect to this
standard. Even the Kirlin employees did not know whether he conducted daily inspections
as required by the standard. They could not say whether he knew everything he must know
to be a competent person (Tr. 278,295,303). There was no evidence that he had authority
to correct any violations. Madden could not find anyone who fulfilled the requirements of
the standard and qualified as a competent person. The violation is affirmed.
Item 9 - Alleged Violation of S 1926.652(a)(l)
Item 9 sets forth two allegations in violation of 0 1926.652(a)(l) in that two trenches
were not properly shored or sloped, thereby exposing employees to possible cave-ins.
Sub-item (a) involved the same trenches as item 7. Madden testified that he
measured the slope of the trench and found it to be 75 to 90 degrees, clearly not in
compliance with the standard regardless of the type of soil (Exh. C-22; Tr. 75). Metric’s
chief building engineer Saunders admitted that the trench was not properly shored, sloped
or braced, at least in parts of it (Exh. C-22; Tr. 500-501, 503-504, 507). He also admitted
that he observed employees of Kirlin working in it regularly, including at about the time of
26
the inspection (Tr. 507-509). The three Kirlin employees said that they had worked in the
trench in this condition (Tr. 298-299, 272-274, 290-291). The violation has been clearly
established. The fact that Metric may have had a dispute with Kirlin over who should
provide shoring (Tr. 352-353) does not negate the violation. It further demonstrates Metric’s
knowledge of the violative conditions. Despite its knowledge, and despite Brian Peterson’s
claim that he inspected the trench (Tr. 3830386), Metric did not pull employees out of the
trench as Kirlin employee Stephens testified (Tr. 273) and Brian Peterson admitted (Tr. 386,
397). The allegation is affirmed.
Sub-item (b) involved the same trench as in item 7. Madden discovered that the east
and north ends of the trench were at a 90-degree angle and that the trench was 5 feet 10
inches in depth at the deepest part (Tr. 77, 144). The photographs reveal pipes and boxes
at the bottom of the trench, indicating that employees had worked there (Exh. C-23). The
allegation is affirmed.
The hazard of not having trenches properly shored or sloped is that a cave-in could
occur causing death (Tr. 77-78). Violations of items 7, 8 and 9 were serious.
Item 1 - “Other” Citation
Alleged Violation of 5 1926.59(e)(2)
Madden asked to see Metric’s hazard communication program, and it was provided
by Brian Peterson. He reviewed the program and determined that it failed to meet the
requirements of 8 1926.59(e)(2), which require:
(2) Multi-employer wor@laces. Employers who produce, use, or store
hazardous chemicals at a workplace in such a way that the employees of other
employer(s) may be exposed (for example, employees of a construction
contractor working on-site) shall additionally ensure that the hazard
communication programs developed and implemented under this paragraph
(e) include the following:
(i) The methods Metric will use to provide the other
employer(s) with a copy of the material safety data sheet. . . .
for each hazardous chemical the other employer(s)’ employees
may be exposed to while working;
27
(ii) The methods Metric will use to inform the other
employer(s) of any precautionary measures that need to be
taken to protect employees during the workplace’s normal
operating conditions and in foreseeable emergencies; and
(iii) The methods Metric will use to inform the other
employer(s) of the labeling system used in the workplace.
Metric argues that its failure to include the above requirements was not a violation
because all that was missing from the program was a sentence or a paragraph (Tr. 153).
The standard specifically requires certain information to be included in a hazard
communication program. Metric’s program lacked some of that information. The fact that
this is easily correctable does not negate the existence of the violation.
The violation is affirmed.
This item alleges a violation of 8 1926.150(a)(3), which requires fire-fighting
equipment be conspicuously located. In the alternative, the Secretary alleges a violation of
6 1926.15O(c)( l)(i), which requires that a fire extinguisher, rated not less than 2A, to be
provided for each 3,000 square feet of the protected building area or a major fraction
thereof.
Madden searched the CU building for a fire extinguisher with Metric project manager
Ty Dyar. None could be found. Metric employees were in the building, and employees
were exiting and entering the building (Tr. 83-84). Metric claims that employees took the
fire extinguisher to the loading dock outside the building where Metric employees were using
a torch and that, after they were finished using the torch, they returned the fire extinguisher
to the building (Tr. 398). While the statement is not openly challenged, the Secretary
reasons that it is irrelevant. The fire extinguisher was not in the building. The building
where Metric employees were present was unprotected. Metric could have provided for the
use of torches outside by providing additional fire extinguishers on the job, but it chose not
to do so.
The standard was violated.
28
Item 3 - Alleged Violation of !$ 1926.350(a)
This item alleged a violation of 0 1926.350(a), which requires that “valve protection
caps shall be in place and secured” when transporting, moving and storing compressed gas
cylinders. Three compressed gas cylinders--two acetylene and one oxygen--were not capped
(Exh. C-24; Tr. 84-85). Metric did not dispute this fact. It recounted a story about a
delivery of full tanks during which, for some reason, the delivery men removed the caps from
the full tanks they had delivered and put them on the empty tanks which they then took
away. They returned the caps the next day (Tr. 360-361). Metric was aware at the time of
the inspection that the caps were not being used. Brief duration of a hazardous condition
does not negate the existence of a violation. Morgan and Culpepppe~Inc. v. OSHRC, 676
F.2d 1065, 1069 (5th Cir. 1982); Flint Engineering supra, - CCH OSHD - at p. 40,854 (No.
-9 - > l
Metric failed to comply with the standard.
Item 4 - Alleged Violation of S 1926.651(~)(2\
.
Item 4 alleges a violation of 5 1926.651(c)(2), which requires:
(2) Means of egressfrom trench excavations. A stairway, ladder, ramp or other
safe means of egress shall be located in trench excavations that are 4 feet
(1.22 m) or more in depth so as to require no more than 25 feet (7.62 m) of
lateral travel for employees.
The trench at issue here is the same as the one involved in item 7, sub-item (b), and item
9, sub-item (b), of Citation No. 1 above. This trench was 5 feet 10 inches in depth (Tr. 77,
144) and, as the photographs reveal, clearly lacked a ladder or stairway. It did have what
may commonly be called a “ramp” but, as can be seen, it was very steep.
The allegation is affirmed.
29
PENALTY DETERMINATION
The Commission is the final arbiter of penalties in all contested cases. Secretaryv.
OSMTRC and InterstateGlass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the
Act, in dete rmining an appropriate penalty, the Commission is required to find and give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the history of previous violations. The
gravity of the violation is the principal factor to be considered.
One might conclude that Metric did a poor job in enforcing safety at the site. It must
be remembered that this project involved construction of 29 buildings extending over 200
acres. It had eight masonry subcontractors, many of whom ignored OSHA standards.
Metric conducted daily safety inspections, but the enormity of the project complicated the
enforcement of safety with the number of personnel it had conducting inspections.
Most of the allegations pertain to alleged violations of scaffolding. Numerous
violations were observed by the compliance officer. They involve the scaffolds which were
6 feet to 27 feet in height. In all cases employees were exposed to potential falls and having
the scaffolds collapse on them. There was very little exposure, but employees were exposed
in all situations. Taking into consideration the four criteria specified under section 17(j) of
the Act, it is determined that the following penalties are appropriate:
Serious Citation No. 1
Item No. Penalty Assessed
$ 800
l,Of)O
800
300
1,800
800
900
2,ooo
30
“Other” Citation
Item No. Penalty Assessed
-O-
-O-
-O-
-O-
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
Based upon the foregoing decision, it is
ORDERED: (1) That sub-items (a), (f) and (g) of item 1 of the serious citation
issued to Metric on October 9, 1992, are affirmed; that sub-items (b), (c), (d) and (e) are
vacated and a penalty of $800 assessed;
(2) That item 2 of the serious citation issued to Metric on October 9,
1992, is affirmed in its entirety and a penalty of $800 assessed;
(3) That item 3 of the serious citation issued to Metric on October 9,
1992, is affirmed in its entirety and a penalty of $1,000 assessed;
(4) That item 4 of the serious citation issued to Metric on October 9,
1992, is affirmed in its entirety and a penalty of $800 assessed;
(5) That sub-items (a), (b), (d) and (e) of item 5 of the serious citation
issued to Metric on October 9,1992, are vacated; that sub-item (c) is affirmed and a penalty
of $300 assessed;
31
(6) That item 6 of the serious citation issued to Metric on October 9,
1992, is affirmed in its entirety and a penalty of $1,800 assessed;
(7) That item 7 of the serious citation issued to Metric on October 9,
1992, is affirmed in its entirety and a penalty of $800 assessed;
(8) That item 8 of the serious citation issued to Metric on October 9,
1992, is affirmed and a penalty of $900 assessed;
(9) That item 9 of the serious citation issued to Metric on October 9,
1992, is affirmed in its entirety and a penalty of $2,000 assessed; and
(10) That items 1 through 4 of the “other” citation issued to Metric
on October 9, 1992, are affirmed in its entirety with no penalty assessed.
J
Judge
Date: December 20, 1993
32
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