OSHRC ALJ decision
Docket 93-1972
Decided October 14, 1994
Citations vacated
Judge Paul L. Brady
Pyramid Masonry Contractors, Inc.
Scaffold-pinning citation vacated, uplift not proven
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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.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
Pyramid Masonry Contractors was laying concrete block and brick from tubular welded frame scaffolds at the Galleria project in Atlanta, Georgia. After an OSHA inspection, the Secretary dropped one citation and part of another, leaving a single item: that the scaffold panels were not pinned together where uplift may occur, in violation of 29 C.F.R. § 1926.451(d)(6). OSHA's theory was that a Lull Lift, an extended-boom forklift delivering materials, could bump the scaffold and lift it. Administrative Law Judge Paul L. Brady found the Secretary did not prove that uplift "may occur": the compliance officer admitted no uplift actually happened, the company president explained the loading procedure and double bracing that made lifting the frames implausible, and the firm had never been cited or had an accident over roughly thirty prior inspections. Because the Secretary failed to prove the standard applied or was violated, the judge vacated the citation and any penalty.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.451(d)(6)
- Outcome: The sole contested item (scaffold pinning) vacated; the Secretary had already dismissed the other citation and item before decision.
- Key point: To prove a scaffold-pinning violation keyed to "uplift," the Secretary must show uplift may actually occur under the site's conditions. A compliance officer's general belief, with no instance of uplift and credible evidence it could not happen, is not enough.
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
COM (202) 6066100
m (202) w6-6-
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-1972
PYRAMID MASONRY CONSTRUCTORS, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on September 15, 1994. The decision of the Judge
will become a final order of the Commission on October 14, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
October 4 1994 in order to ermit sIi! cient 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
ReMew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. 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.
Date: September 15, 1994 ~~~~/~
DOCKET NO. 934972
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Jaylynn Fortney
Re onal Solicnor
O&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309
Dion Y. Kohler, Es uire
Ogletree, Deakms, iitash, Smoak &
Stewart
3800 One Atlantic Center
1201 West Peachtree Street, N. W.
Atlanta, GA 30309
Paul L. Brady
Administrative Law Jud e .
Occupational Safety an d Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00107173288:04
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3 119
FAX.
PHONE:
COM (404) 347-0113
COM (404) 347-4197
FTS (404) 347-0113
FTS (404) 347-4197
..
SECRETARY OF LABOR, ..
Complainant,
v. OSHRC Docket No. 934972
.
PYRAMID MASONRY CONTRACTORS, I
INC., ..
Respondent.
APPEARANCES:
Stanley E. Keen, Esquire Dion Y. Kohler, Esquire
Office of the Solicitor Ogletree, De&ins, Nash, Smoak & Stewart
U. S. Department of Labor Atlanta, Georgia
Atlanta, Georgia For Respondent
For Complainant
Before: Administrative Law Judge Paul L. Brady
DECISION AND ORDER
Respondent, Pyramid Masonry Contractors, Inc. (Pyramid), a masonry contractor, was
engaged in laying concrete block and brick on a construction site known as the Galleria
project in Atlanta, Georgia. An inspection of the worksite was conducted by the
Occupational Safety and Health Administration (OSHA) which resulted in the issuance of
two citations.
The Secretary of Labor (Secretary) dismissed Citation No. 2 and item l(a) of Citation
No. 1, leaving in issue the alleged violation of the standard at 29 C.F.R. 5 1926.451(d)(6).
The standard, which pertains to tubular welded frame scaffolds, states: “Where uplift may
occur, panels shall be locked together vertically by pins or other equivalent suitable means.”
The alleged violation is described in the citation as follows:
Tubular welded frame scaffold(s) were not locked together vertically by pins
or other equivalent means:
(a) Construction site, 1 Galleria Parkway, west face of
building - The entire erected scaffold was not pinned to keep
the panels together.
The Commission has held that in order to establish a violation, the Secretary has the
burden to prove by a preponderance of the evidence that:
(1) the standard applies, (2) the employer failed to comply with the terms of
the standard, (3) employees had access to the cited condition, and (4) the
employer knew or, with the exercise of reasonable diligence, could have
known of the violative condition.
wheelingZittsbu@~ Steel Corporation,16 BNA OSHC 1780,1782,1994 CCH OSHD ll 30,026
(No. 91-2524, 1994).
The Secretary agrees that “uplift” is not defined in the standards, and the question
is whether “uplift may occur” under the facts presented. Compliance Officer Robert
Ardizzoni conducted the inspection in this case. He testified that he observed an employee
working on a scaffold that was not pinned (Tr. 13). This was not an issue as the parties
stipulated the scaffolding was not pinned during the relevant period. Ardizzoni further
testified that a Lull Lift was used to deliver material to the scaffold. He explained this was
a type of forkl’1ft with an extending boom which allowed the placement of material on the
scaffold from a distance. In observing the operation and, from his experience, Ardizzoni
believed uplift could occur because the forks came so close to the scaffold (Tr. 16-17, 35).
Charles Fleming, a laborer, testified that he performed work on the scaffold and that
often the lift operator was required to make adjustments to the height of the forks while
2
they were in close proximity to the scaffold. From time to time the load would bump or hit
the scaffold (Tr. 68, 70-72).
Mr. Ardizzoni noted in his testimony that foreman Pat England told him the
scaffolding should have been pinned (Tr. 15). It is, therefore, argued that Pyramid admitted
uplift may occur. England denied that he told Ardizzoni the scaffolds were supposed to be
pinned (Tr. 15). On cross-examination, Ardizzoni acknowledged that England stated at the
closing conference that he did not believe the scaffold needed to be pinned because uplift
could not occur (Tr. 48). On the basis of the record, Pyramid is not deemed to have
admitted that uplift may have occurred.
Mr. John Doherty, president of Pyramid, testified that over the past fourteen years
he has been engaged in approximately 1,500 projects with 90 to 95 percent involving
multi-stage scaffolds (Tr. 76-77). He testified regarding his experience in the masonry
industry and with trade associations, and that he is not aware of any contractor who pins
multi-frame scaffolds (Ti. 78-80).
Doherty explained that each frame of the scaffold is approximately 5 feet wide and
6 feet high. The scaffold is secured to the wall at every third frame which is approximately
21 feet wide and 18 feet high. He stated each scaffold is double-braced on the inside as well
as the outside. Masons work from outriggers that are attached to the scaffold and located
between the scaffold and the wall. Materials are placed on the planked platform areas
between the frames (Tr. 87-88).
Mr. Doherty acknowledged that a Lull Lift was used at the construction site. With
its transverse carriage feature, the operator can move material on or off the scaffold without
moving the vehicle. He explained the operating procedure whereby material is raised slightly
above the scaffold planking as it reaches the scaffold. With use of the transverse carriage,
it is then moved forward over the planking and lowered. The lifting forks, which are not
raised during the procedure, are then retracted. When material is removed from the
scaffold platform, the procedure is the same except the forks are raised a few inches off the
platform before material is moved away. The material is clear of the scaffold before it is
moved away with the transverse carriage (Tr. 88-94).
3
In its attempt to show the standard does not apply, Pyramid points out what is
necessary in order for uplift to occur. Mr. Doherty states that a pallet carrying material
would have to be raised approximately 6 feet before striking the planking on the stage above
(assuming it was planked). If this occurred, the planking would be raised but not the
scaffold frame because the planking is not secured to the frame. Frames can only be lifted
when the planking is raised high enough to raise the cross bracing which is attached to the
scaffold frame (Tr. 95). If the frames become dislodged, they would be held in place by the
double bracing. In addition, the scaffold is self-supporting because it is attached to the
building (Tr. 97-98).
Mr. Doherty pointed out that in the event of a malfunction in the Lull Lift, it would
lock in place because there is a safety valve on each hydraulic cylinder on the lift (Tr. 98-99).
Pyramid also shows that operators are instructed on the proper operation of the lifts and
requires that they are experienced. The operator at the time of the inspection had been
employed for twelve years (Tr. 101402).
The basis for the alleged violation is the operation of the Lull Lift in close proximity
to the scaffolds. Mr. Ardizzoni stated: “From my observations and experience in inspecting
construction sites, a Lull Lift can and has caused uplift before” (Tr. 35). Although he
observed the lift or material contact the scaffold several times, he admitted uplift did not
occur (Tr. 33).
Pyramid shows that over the last fourteen years, it has been the subject of
approximately thirty OSHA inspections and has not been issued a citation for failure to pin
scaffolds (Tr. 81). Doherty states that Pyramid has never had an accident as a result of the
Lull Lift striking or raising the scaffold, and he has not heard of this happening in the
industry (Tr. 99400).
The evidence of record is not convincing that uplift may occur under the
circumstances of this case. . Likewise, the Secretary has failed to establish, by a
preponderance of the evidence, that there was noncompliance with the standard. Also, the
evidence fails to disclose employees were exposed to a hazard or that Pyramid knew or
could have known of the violative conditions.
The standard was not violated as alleged.
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).
ORDER
Based upon the foregoing decision, it is ORDERED:
That part of Citation No. 1 alleging a violation of 29 C.F.R. 0 1926.451(d)(6) is
hereby vacated.
IsI Paul L. Bradv
PAUL L. BRADY
Judge
Date: September 7, 1994
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