Sommer Builders, Inc.

Plain-English summary

Sommer Builders performed masonry work from tubular welded-frame scaffolds at a Boise construction project. Employees faced an interior fall through window openings guarded only by loose rebar and exterior falls from unguarded outrigger platforms, including potential falls of about 38 feet. The judge held that the rebar did not provide equivalent guardrail protection and that a scaffold platform six feet below the outrigger was not a floor or an acceptable substitute for the guardrails required by the standard. He found only the June 24 instance willful because a supervisor consciously chose not to move available guardrails before grouting, while the other two instances did not show intentional disregard. The item remained classified as willful, but the judge reduced the proposed $50,000 penalty to $7,500 because only one instance was willful and the lower scaffold platform substantially reduced the exterior fall hazard.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(d)(10).
• Outcome: Modified. The scaffold item was affirmed as willful, but the penalty was reduced from $50,000 to $7,500.
• Key point: A catch platform below a scaffold does not replace the specific guardrails required by the standard, and a supervisor's deliberate decision to postpone available guardrails can support a willful classification.

Full text (OSHRC public release)

                                 UNITED STATES OF AMERICA
  OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                  One Lafayette Centfe
                            1120 20th Street, N.W. - 9th floor
                               Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
NO. 93-2277
SOMMERS BUILDERS, INC.
Respondent.

                                     s
                         NOTICE dF DOCKETING
                  OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on January 5, 1995. The decision of the Judge
will become a final order of the Commission on February 6, 1995 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 29 , 1995 in order to ermit su x icient time for its review. See
Commission Rule 91, 29 C.F.k . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to: ~

                          Executive Secretary
                          Occupational Safety and Health
                           Review Commission
                          1120 20th St. N.W., Suite 980
                          Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:

                          Daniel J. Mick, Esq.
                          Counsel for Regional Trial Litigation
                          Office of the Solicitor, U.S. DOL
                          Room 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 rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

                                         FOR THE COMMISSION

Date: January 5, 1995 Ray’ H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-2277
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOEi,
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Robert Friel, Es .
Assoc. Regional 1 elicitor
Office of the Solicitor, U.S. DOL
1111 Third Avenue, Suite 945
Seattle, WA 98101

Richard C. Boardman, Esq.
Penland Munther Boardman
350 North Ninth, Suite 500
Boise, ID 83701

Benjamin R. Lo e
Administrative i!i w Jud e
Occupational Safety an B Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO l 0204 3582

00107234627: 10
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Speer Boulevard
Room 250
Denver, Colorado 802044582

                                                    I

SECRETARY OF LABOR, I
I
Complainant, I
I
v. I OSHRC DOCKET
I NO. 93-2277
SOMMER BUILDERS, INC., I
I
Respondent.
- I
I

   APPEARANCES:

            For the Complainant:

                   Matthew L Vadnai, Esq., Office of the Solicitor,
                    U.S. Department of Labor, Seattle, WA

            For the Respondent:

                   Richard C. Boardman, Esq., Boise, ID




                                  DECISION AND ORDER

Loye, Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C., Section 651, et. sea, hereafter referred to as the Act).
Respondent, Sommer Builders, Inc. (Sommer), at all times relevant to this action
maintained a worksite at 805 West Franklin, Boise, Idaho, where it was engaged in masonry
construction. Sommer admits it is an employer engaged in a business affecting commerce
and is subject to the requirements of the Act (Tr. 12).
 On June 22-24, 1993, the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Sommer’s Boise worksite (Tr. 112). As a result of the inspection,
Sommer was issued citations, together with proposed penalties, alleging violations of the Act.
By filing a timely notice of contest Respondent brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).
On August 9, 1994, a hearing was held in Boise, Idaho. The parties have submitted
briefs and this matter is ready for disposition.
Alleged Violations
Willful citation 1, item la states:
29 CFR 1926.451(d)(lO): Standard guardrails and toeboards were not installed at all open
sides and ends on tubular welded frame scaffolds more than 10 feet above the ground or
floor:

    (a) West Side of Building: On or about June 22, 1993 and at times prior thereto,
    employees were working on the fifth deck of the scaffold and the 2nd floor window
    openings were not provided standard guardrails. The employees were exposed to a
    fall of approximately 17 feet.

    (b) West Side of Building: On June 23, 1993 an employee was installing mason
    block off the tubular welded frame scaffold and the scaffold was not equipped with
    guardrails. The employee was exposed to a fall of approximately 38 feet.

    (c) North Side of Building: On June 24, 1993 employees were pumping grout into
    the masonry wall from the tubular welded frame scaffold and the scaffold was not
    provided with guardrails. The employees were exposed to a fall of approximately 38
    feet.

    The cited standard provides:

    Guardrails made of lumber, not less than 2x4 inches (or other material providing
    equivalent protection), and approximately 42 inches high, with a midrail of lx6 inch
    lumber (or other material providing equivalent protection), and toeboards, shall be
    installed at all open sides and ends on all scaffolds more than 10 feet above the
    ground or floor.

                               Item l(a) - June 22, 1993

Facts
The underlying facts in this matter are not disputed.
 On June 22,1993, CO David Mahlum observed and videotaped Sommer’s employees,
including Mike Sommer, its president, working on a tubular steel scaffold approximately 38
feet high, and 17 feet above the metal second floor deck (Tr. 47, 64, 128, 132; Exh. C-2).
Three employees were working on the west side third story window openings, and were
exposed to fall hazards to the interior of the building through those windows (Tr. 123,138;
Exh. C-2, R-3 through R-5).
The west side windows were guarded with a single piece of No. 6 or No. 7 rebar (Tr.
103, 122, 363; Exh. R-3). CO Mahlum testified that the rebar would bend under a man’s
weight (Tr. 17475, 225, 365). In addition, the rebar was not secured but was merely laid
on the cinderblock resting against the vertical rebar (Tr. 366). The horizontal rebar could
be lifted out, or in some cases simply roll out of place (Tr. 122.23,367). No mid-rail or toe
boards were in place (Tr. 123). Frank Clay, safety coordinator for the Association of.
General Contractors, testifying as a safety expert for Sommer (Tr. 249.57), agreed that the
rebar did not comply with the requirements of §1926.451(d)(lO) (Tr. 269, 273).
Guardrails were feasible, and had been placed in windows on the south side (Tr. 92,
136, 138,364; Exh. C-2; Exh. R-6). Completed windows were braced with “window bucks,”
wooden supports which Mahlum felt provided adequate fall protection (Tr. 7577,91, 124-

26) .
Following CO Mahlum’s inspection, a closing conference was held, during which
Mahlum informed Sommer that they would be cited for failing to provide interior fall
protection in the window openings prior to installation of the window bucks (Tr. 48,72,170).
Mahlum told Sommer at that meeting that his scaffolds were otherwise well installed and
guarded (Tr. 186). Mahlum testified that Sommer was not cited for guardrail violations on
June 22 because on that date the materials platform appeared to be 18 inches or more
higher than the outrigger platform, i.e. above knee level (Tr. 191092,357). Mahlum believed
the materials platform was sufficient protection against falling (Tr. 194).

    Sommer admits that no guardrails were installed in, and that employees were exposed

to, the cited window openings. Sommer argues, however, that the rebar was “equivalent
material” for purposes of the standard.
 The testimony, including that of Sommer’s own safety expert, establishes that the
rebar neither met the guardrail specifications set forth in the cited standard, nor provided
meaningful fall protection for workers exposed to the cited window openings. Sommer has
failed to show that the rebar it placed in the third floor window openings satisfies the
exception for equivalent materials set forth in the cited standard. See Falcon Steel Co., 16
BNA OSHC 1179, 1993 CCH OSHD lI30,059 (No. 89-2883, 89-3444, 1993); StanBestInc.,
11 BNA OSHC 1222,1983-84 CCH OSHD lI26,455, (No. 76-4355, 1983)[When a standard
contains an exception to its general requirement, the burden of proving that the exception
applies lies with the party claiming the benefit of the exception.]
The Secretary has established the violation.
Items l(b), l(c), June 23-24, 1993
Facts
On June 23,1993, Ed Banberry, business representative for the ironworkers local union,
observed and photographed Sommer employees working on the outrigger of the west side
scaffolding (Tr. 17-18, 23, 51; Exh. C-1). No guardrail had been erected on the outrigger
(Tr. 24, 52, 82, 139; Exh. C-1).
On June 24, 1993, CO Mahlum returned to Sommer’s worksite and observed and
videotaped three Sommer employees on the north side third floor outrigger, grouting the
masonry with a concrete hose (Tr. 148; Exh. C-2 through C-7). Guardrails were up on the
outrigger along the south and east sides, none on the north and west (Tr. 152).
The outrigger is a platform four planks wide, two of which extend past the main
scaffold frame in towards the building wall (Tr. 158). A plank behind the outrigger serves
a materials platform, but was, on June 24, level with the outrigger platform (Tr. 1%. 221).
Six feet below the outrigger, the main scaffold platform was solidly decked, its sides guarded
with four foot high plywood sheets except where two sections were used as material loading
stages (Tr. 28, 64, 142, 157-59; Exh. C-l, R-7). The main platform, which is five feet wide
total, extends apprbximately 30 inches beyond the outrigger’s materials platform to the
building’s exterior (Tr. 142, 221).
Both Clary and James Stubbs, the managing superintendent for Sommer’s general
contractor (Tr. 42), testified that a worker falling from the outrigger would land on the

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scaffold platform (Tr. 84,263). Matthew Jones, Sommer’s mason safety manager (Tr. 333),
stated that an employee would have to jump over the main scaffold platform to clear it (Tr.
337). CO Mahlum disagreed, stating that a falling employee would typically tumble out away
from the vertical (Tr. 142), and could either strike the plywood siding, or fall outside the
scaffold decking (Tr. 151).
Discussion
Respondent admits that no guardrails were installed on the outriggers of the cited
scaffolding, but argues that no guardrails were required because the outrigger was less than
10 feet above the guarded scaffold platform. Complainant maintains that the scaffold
platform is not a floor, but a catch platform, which Sommer relied upon as fall protection
in lieu of installing the required guardrails. Complainant argues that the cited standard is
a specifications standard, and that the acceptable means of compliance are limited to those
provided for in the standard.
The undersigned agrees. The approximately 30” of planking which extended beyond
the edge of the outrigger and materials platform is clearly not a floor, as that term is
commonly understood. Sommer was, therefore, required to install guardrailing specifically
meeting the criteria set forth in the cited standard. Sommer’s installation of a catch platform
as an alternate means of fall protection is inadequate to comply with the cited standard.
The Commission has held that an employer’s use of impermissible alternate protective
measures is relevant only in dete rmining the proper characterization or appropriate penalty
for the violation? See Ppamid Masonry Contracton, Inc., 16 BNA OSHC 1461, 1993 CCH
OSHD a34255 (No. 91-0600, 1993).
In addition to its argument on the merits, Sommer objects to OSHA’s conduct in
issuing a citation under these circumstances, based on the OSHA CO’s failure to advise
SomIner of problems with its guardrailing during the June 22 closing conference. It is well
settled, however, that OSHA’s failure to detect a violation during a prior inspectioh does not

1 The evidence also establishes that the scaffold platform was inadequate in that it did not completely
eliminate the exterior fall hazard. The scaffold platform did not extend beyond the open southwest end of
the outrigger (Tr. 35; Exh. C-l). Employees walking around the cOmer of the outrigger at that point (Tr.
38-39) were exposed to the full 38 foot fall.

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grant the employer immunity from later enforcement of applicable standards. Seibel Modem
Manufacturing& Wekiiizg,15 BNA OSHC 1218, MU-93 CCH OSHD li29,442 (No. 88-821,
1991).
Nothing in the record indicates that the CO directly addressed the sufficiency of using
catch platforms in lieu of guardrails at the June 22 closing conference. The hazard, as it was
cited, did not exist on June 22. The photographs from the first inspection are all interior
views showing the physical barrier of the materials platiorm between the employees and any
exterior fall hazard. The evidence establishes that the outriggers were configured differently
during the second inspections; on June 24, the materials platform was level with the
outrigger deck, exposing employees to the exterior fall.
This judge cannot find that the CO made any affirmatively misleading statements to
Sommer regarding the use of catch platforms, and that no misrepresentations by OSHA
preclude enforcement of the cited standard.
Willfill
Facts
Sommer is a masonry contractor with extensive experience with scaffolding (Tr. 210).
Sommer was previously cited by OSHA for violation of the standard at issue here (Tr. 210,

231) .
Kevin and Mike Sommer, Sommer’s vice president and president, respectively,
testified that they were familiar with 51926.451 from reading the standard, and from
encounters with OSHA (Tr. 283, 289, 387). Both Sommers stated, however, that they
believed the standard requires that guardrails be installed only where employees worked
more than ten feet above any surface (Tr. 293, 382). Both testified that they believed the
planking on the main scaffold provided fall protection, and eliminated employee exposure
to the fall hazard the standard was intended to address (Tr. 285, 290). Nonetheless,
Sommer’s published policy was to erect guardrails on all opehings, open sides and ends of
every working platform six feet above the adjacent floor or platform (Tr. 293,422.23; Exh.

C-9) .
James Stubbs testified that on the afternoon of June 23 he directed Mike Sommer
to get guardrails up on the north side outrigger platform, where employees would be

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working next (Tr. 49051,55). Railing was installed on the north side (Tr. 56). M. Sommer
testified, however, that he did not believe Stubbs was relying on OSHA regulations (Tr. 375),
and that it was merely company policy to provide additional protection against the 6 foot fall
(Tr. 3%).
Sommer had only enough guardrails to guard the scaffolding on two sides of the
building (Tr. 57,378). On June 24, Mike Sommer instructed Dave Glissmeyer, the Sommer
employee supervising the crew (Tr. 153) to move the guardrails from the east side around
to the areas where work was being performed (Tr. 304-06, 377). This was never done.
Glissmeyer told CO Mahlum that he was concerned with the grout setting up before it was
applied and decided not to take the time to move the guardrails (Tr. 154-55). At hearing,
however, Glissmeyer stated that he initially intended to move the guardrails around as in-
structed, but in the press of work didn’t get around to it (Tr. 310). Glissmeyer testified that
he was not familiar with the cited standard (Tr. 319).
Discu&n
The Commission has held that a willful violation is one committed with intentional,
knowing or voluntary disregard for the requirements of the Act, or with plain indifference
to employee safety. Calang Cop., 14 BNA OSHC 1789, 198790 CCH OSHD li29,080(No.
85-319, 1990). A violation is not willful, however, if the employer had a reasonable good
faith belief that the violative conditions conformed to the requirements of the Act. The test
of good faith for these purposes is an objective one -- whether the employer’s belief
concerning a factual matter, or concerning the interpretation of a standard, was reasonable
under the circumstances. Id Based on Sommer’s previous citation for violation of the same
standard, its experience in the industry, the fact that the scaffold platform did not eliminate
the exterior fall hazard, and looking to the unambiguous language of the standard itself, the
undersigned finds that Sommer’s position, that it need not comply with the standard where
its employee’s work platform was less thsn 10’ above a catch platform, is unreasonable.
This judge finds that Sommer’s unreasonable interpretation of the cited standard is,
however, insufficient, in and of itself, to establish a pattern of willful conduct. Sommer’s
stated policy was to guard each of the fall hazards cited, and the evidence establishes that
guarding was intended, and partially provided in all three of the instances cited.

                                           7

Complainant failed to produce any additional evidence tending to show that Sommer’s
failure to guard the hazards cited in items l(a) and l(b) resulted from Sommer’s intentional
disregard for either the requirements of the Act or for employee safety. The undersigned
cannot, therefore, find that those instances were ‘%llful.”
In regard to item l(c): The undersigned finds the evidence of Glissmeyer’s
contemporaneous, signed statement compelling, and credits the evidence establishing that
on June 24, despite admonitions from his employer to move the guardrails around to the
side where employees would be grouting, Dave Glissmeyer, Sommer’s supervising employee,
made a conscious decision not to do so. His decision was based on the possibility that
Sommer’s grout delivery would harden before the guardrails could be moved.
The Commission has held that an employer is responsrble for the willful nature of its
supervisors’ actions where preventable. SecretaryofLabor v. Tampa Shipyards, Inc. 15 BNA
OSHC 1541, 1991-93 CCH OSHD Il29,617 (Nos. 86360,86X19, 1992). Sommer failed to
demonstrate that it made any efforts to familiarize its supervisory personnel with the OSHA
standards governing the work they were performing. Supervisor Glissmeyer’s conduct is,
therefore, imputed to Sommer, and that cited instance is deemed willful.
Penalty
Three employees were exposed to the inadequately guarded window openings for
approximately 30 to 40 minutes (Tr. 369). Mahlum testified that a 17 foot fdll would most
likely have resulted in fractures, and possibly death (Tr. 132-33). At least three employees
were exposed to the 38 foot exterior fall hazard on June 23 and 24 (EA. C-l, C-3 through
C-7). Mahlum testified that the likelihood of an employee tripping and falling is greater
where the employee is walking backwards with a grout hose over his shoulder and trailing
at his feet (Tr. 235). The exterior fall hazard was substantially mitigated, however, by the
presence of Sommer’s scaffold platform six feet below the outrigger platform.
Taking into account the relevant factors, the undersigned1 finds that the proposed
penalty of $SO,OOO.OO
is excessive. Complainant based its penalty on three instances of
willful conduct; the evidence establishes that only one of the instances was, in fact, willful.
Moreover, Complainant failed to take into account the substantial alternative protective

                                               a

measures installed by Sommer, and so considerably overstates the gravity of the cited viola-
tion. A penalty of $7,500.00 is deemed appropriate.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination
of the contested issues have been found specially and appear in the decision above. See
Rule 52(a) of the Federal Rules of Civil Procedure.

                                       Order

1. Serious citation 1, item 1, alleging violation of §1926.451(d)(lO) is AFFIRMED as a
   “willful” violation, and a penalty of $7,500.00 is ASSESSED.

                                      Judge, OSHRC
   

Dated:December 16, 1994

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