Harbert-Yeargin, Inc.

Plain-English summary

Harbert-Yeargin was the general contractor building a cogeneration power plant
in Fort Myers, Florida, that would turn municipal solid waste into steam and
electricity for Lee County. While inspecting the site over another contractor
in June 1994, an OSHA compliance officer also cited Harbert-Yeargin, issuing a
serious citation with eleven electrical and scaffolding items plus one
other-than-serious hazard-communication item. Harbert-Yeargin withdrew its
contest of the other-than-serious item before the hearing, so Judge Ken S.
Welsch decided the eleven serious items.

The electrical items concerned temporary wiring and power distribution: a
300-foot run of indoor-rated NM cable used for temporary lighting and laid
across a debris-strewn area, along with grounding and related distribution
problems. The scaffolding items concerned two tall mobile tubular welded
scaffolds in the boiler room that lacked outriggers or guying and used cross
bracing in place of a guardrail. The judge affirmed seven of the eleven items
as serious and vacated four where the Secretary's proof fell short, including
two grounding sub-items and a scaffold competent-person item. The affirmed
penalties totaled $4,500.

Decision snapshot

• Cited standard(s): Construction electrical standards in 29 C.F.R. § 1926.403–.405 and scaffold standards in § 1926.451; other-than-serious hazcom item § 1926.59(g)(5)(ii)
• Outcome: 7 serious items affirmed, 4 vacated; other-than-serious item withdrawn pre-hearing; total penalty $4,500
• Key point: Indoor-rated NM cable is not listed for the hard use of a construction site, and tall mobile scaffolds must be secured against tipping; but the Secretary must still prove each item to sustain it.

Full text (OSHRC public release)

```text
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1 120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                                Phone:(202)606-5400
                                                                                 Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-2950
HARBERT-YEARGIN, 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 05 Aprir4? 1996. The decision of the Judge
will become a final order of the Commission on May 6, 1996 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 petition should be received by the Executive Secretary on or before
April 23, 1996 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.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
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 bv the Commission. then the Counsel for
Regional Trial Litigation will represent the Departme& of Labor. bY party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: April 4, 1996
DOCKET NO. 94-2950
NOTICE IS GIVEN TO THE FOLLOWING:

Jaylynn Fortney
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

David E. Jones, Es uire
Ogletree, Deakins, % ash, Smoak &
Stewart
3800 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, GA 30309

Ken S. Welsch
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00109608893 : 04
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 3 0309-3 119

Phone: (404) 347-4 197 Fax: (404) 347-0113

SECRETARY OF LABOR,
Complainant,

                 v.                                        ..       OSHRC Docket No. 94-2950

HARBERT-YEARGIN, INC.,
Respondent.

APPEARANCES:

         John A. Black, Esquire                                     David E. Jones, Esquire
            Office of the Solicitor                                         Ogletree, Deakins, Nash,
            U. S. Department of Lab                                         Smoak & Stewart
            Atlanta, Georgia                                                Atlanta, Georgia
                  For Complainant                                                    For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER

         This proceeding is before the Occupational Safety and Health Review Commission pursuant

to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 9 651, et seq.), hereafter
referred to as the “Act.”
Respondent, Harbert-Yeargin, Inc., at all times relevant to this action, maintained a place
of business on Buckingham Road, Fort Myers, Florida, where as general contractor, it was
responsible for the construction of a cogeneration power plant. The plant was being built to convert
municipal solid waste into steam to produce electricity for Lee County, Florida. Harbert-Yeargin
was responsible for constructing the foundations, buildings, and most of the structuraI components.
The construction work began in October 1992 and was completed in February 1995 (Tr. 12-l 3,
210-211).
 In June 1994, Compliance Officer Warren Knopf of the Occupational Safety and Health
Administration conducted a complaint inspection of the construction site involving another
contractor. However, as a result of inspecting the site, Harbert-Yeargin received a serious citation
alleging violations of the electrical standards at 29 C.F.R. $5 1926.403(b)(2), 1926404(a)(2),
1926.404@( l)(iii)(C), 1926.404(b)( l)(iii)@), 1926.404(b)( l)(iii)(G), 1926.405(a)(2)(ii)(B), and
1926.405(g)(2)(iv), and the scaffolding standards at 29 C.F.R. $0 1926.45 1(a)(3), 1926.45 1(a)(4),
1926.45 1(e)(l), and 1926.45 1(e)( 10). Penalties totaling $15,375 were proposed for the serious
citation. Also, Harbert-Yeargin received an “other-than-serious” citation for violation of
5 1926.59@(5)(ii). The citations were timely contested. Prior to hearing, Harbert-Yeargin withdrew
its notice of contest to the “other-than-serious” citation (Tr. 6).
The hearing as to each item of the serious citation was held in Fort Myers, Florida, on May
2, 1995. Harbert-Yeargin admits that at all relevant times to this proceeding, it was an employer
engaged in a business affecting commerce within the meaning of the Act (Tr. 5-6).
CITATION NO 1.
Item 1 - Alleged Violation of 5 1926.403(b)(2)
The citation alleges that a “NM 1O-2electrical wire run underground to the building, was laid
on the ground not protected, and used for temporary service to the tunnel. Wire was not used as
listed or labeled for use by the manufacturer.”
Facts
During his inspection, Compliance Officer Knopf observed an NM 10-2 electrical wire,
approximately 300 feet in length, used to provide temporary lighting to a tunnel inside the residue
building. Originating at a temporary power box, the NM wire ran underground to an area outside
the residue building when it surfaced and ran on the ground through an area littered with
construction debris. At the residue building, the NM wire crossed a concretee pad, entered the
building at its entrance, and ran to the tunnel area (Exhs. C-2, C-3, C-4; Tr. 19-20). Knopf observed
Harbert-Yeargin’s employees working in the residue building and entering and leaving where the
wire was laying (Tr. 21). He testified that the NM wire caused a tripping hazard and, if there were
degradation of the wire’s outer sheathing, employees could be exposed to electric shock (Tr. 22).
Knopf described the NM wire as normally used for permanent indoor wiring. It was not labeled for

                                                  2

hard use or extra hard use, which is appropriate for temporary usage at construction sites (Tr. 20-21,
135). He testified that degradation of the wire’s outer sheathing could be caused by dampness in the
ground, ultraviolet light from the sun,and bending and flexing from employees walking on it (Tr. 20,
26, 29-3 1). In checking the NM wire, however, Knopf did not observe any degradation in the
sheathing (Tr. 130). .
Richard Cooper, safety manager for Harbert-Yeargin during the OSHA inspection, testified
that the NM electrical wire was used for approximately two months and discontinued on the day of
the inspection when permanent power was connected to the tunnel. He described the NM 10-2
electric wire as having ten-gauge nonmetallic sheathing with two conductors and a ground cable.
He testified that NM 10-2 wire is more substantial than an extension cord. However, he conceded
that it was generally used for permanent indoor wiring. Based on thirty years of experience, Cooper
testified that such wiring was accepted over the country as suitable for temporary wiring for short
periods of time (Tr. 240-241). He agreed that NM wire should not be exposed for long periods of
time (Tr. 241). He testified that the wire was only 6 inches below the surface in sandy soil and that
if the outer sheathing were damaged, the ground fault circuit interrupter (GFCI) would have tripped,
preventing physical harm (Tr. 2350236,238).
Discussion

    Section 1926.403(b)(2) provides:

    Listed, labeled, or certified equipment shall be installed and used in accordance with
    instruction included in the listing, labeling, or certification.

    It is uncontroverted   that Harbert-Yeargin knew the NM wire was being used and that

employees worked and walked in the area of the wire. Also, Harbert-Yeargin acknowledges that it
was using the NM wire for temporary power to the tunnel and that NM wire is not listed, labeled or
certified for hard or extra hard use. Harbert-Yeargin’s safety manager agreed that NM wire is
generally used for permanent indoor wiring.
Article 336-3(a) of the National Electric Code (NEC) (Exh. C-12) identifies the permitted
usage for type NM wire as:
 Type NM cable shall be permitted for both exposed and concealed work in normally
dry location. It shall be permissible to install or fish Type NM cable in air voids in
masonry block or tile wall where such walls are not exposed or subject to excessive
moisture or dampness. Type NM cable shall not be installed where exposed to
corrosive fumes or vapors; nor run in shallow chase in masonry or concrete and
covered with plaster or similar finish.

    Also, Article 336-10 provides that for exposed work NM wire should closely follow the

surface of the building and be protected from physical damage by conduit, pipe, guard strips or other
means. Article 336-14 provides that bends in the wire and other handling should not subject the
protective coverings of the wire to being injured and no bend shall “have a radius less than five times
the diameter of the cable” (Exh. C-12).
Therefore, based on the record, the court concludes that the NM 1O-2 wire used by Harbert-
Yeargin was not listed for the temporary conditions and usage observed by Knopf. It was not listed
for damp conditions, exposure to ultraviolet light, or subjected to damage from employees walking
on it. The NM wire was not used in accordance with its listing, labeling or certification as required
by § 1926.403(b)(2). ‘
The issue, however, raised by Harbert-Yeargin is whether $1926.403(b)(2) is the appropriate
standard. Harbert-Yeargin argues that 5 1926.405(a)(2)(ii)(J) is the appropriate specific standard
which addresses temporary electrical installations. Section 1926.405(a)(2)(ii)(J) provides that
“flexible cords used with temporary and portable lights shall be designed for hard or extra-hard
usage” and lists f?om the NEC various types of cords approved this usage such as ST, SO, or
SJ wire. NM wire is not listed.
The court disagrees that 5 1926=405(a)(2)(ii)(J) is the appropriate standard. Section
8 1926.403(b)(2), which was cited, applies to all electrical equipment and installations, whether
temporary or permanent, used on jobsites. It requires the installation and use of electrical equipment
to be in accordance with the equipment’s listing, labeling, or certification. Section 1926.403(b)(2)
addresses the conditions and hazards observed by Knopf. It applies to Harbert-Yeargin’s use of the
NM wire. Knopf observed the NM wire not only under conditions which would require hard usage
or extra hard usage, but he also observed the wire in inappropriate locations, i.e., underground
dampness and sunlight. NM wire is not listed for these conditions (Exh. C-12, Table 400-4).

                                               4

Section 1910.5 provides that a general standard prescribing compliance action is not preempted by
a specific standard unless both standards address the same hazard. Here, the hazards are different.
Thus, it is concluded that 5 1926.403(b)(2) is the applicable standard and is not preempted.
Also, Harbert-Yeargin agues that NM wire could be used at this site based on
§ 1926.405@(2)(I) which provides that “ temporary electrical power and lighting wiring methods
. . . may be of a class less than would be required for a permamnt instak&d’ Ha&&-Yea.rgin’s

interpretation misreads the standard. The standard does not permit the use of pemm,nent tiring for

temporary usage. It permits wiring methods which may be less than required for permanent
installations. NM wire, as acknowledged by Harbert-Yeargin, is used for permanent installations.
Therefore, 5 1926.405(a)(2)(1) does not permit Harbert-Yeargin’s use of the NM wire. Further, even
if NM wire were accepted by other contractors for temporary wiring as asserted by C&per, the

standard requires Harbert-Yeargin to comply with specific action regardless of industry practice.
See State Sheet Metal Co., 16 BNA OSHC 1155, 1159, 1993 CCH OSHD 7 30,042, p. 41,225
(Nos. 90=1620&k90-2894, 1993).
As for the classification of the violation, Harbert-Yeargin argues that it should have been
classified as “other-than-serious” because the NM wire was used for less than two months; there was
no evidence of degradation; and the ground fault circuit interrupter (GFCI) would have prevented
any physical harm. In order to establish a serious violation under 5 17(k) of the Act, consideration
is given to whether (1) there is substantial probability that death or serious physical harm could
result from a hazardous condition, and (2) the employer knew or, with the exercise of reasonable
diligence, should have known of the presence of the violation. In determining substantial
probability, the issue is not whether an accident is likely to occur. Rather, the record must show that
an accident is possible and the result of the accident wouId likely be death or serious physical harm.
Spancrete Northeast, Inc., 15 BNA OSHC 1020,1024,1991 CCH OSHD 7 29,313, p. 39,358 (No.
86-52 1, 1991); Consolidated Freightway Corp., 15 BNA OSHC 13 17,1324, 1991 CCH OSHD 1
29,498 p. 39,801 (No. 89-2253, 1991). The “serious” classification is based on the type of expected
injury if an accident occurred. In this case, the record establishes that if degradation did occur from
improper wage of the NM wire, employees would be exposed to electric shock which could have

caused serious injury or possible death. Cooper agreed that degradation of the outer sheathing was

                                               5

possible if exposed for longer than a short period of time. A short period was never defined by
Cooper. Also, any protection provided by the GFCI depends on whether it is operable (one GFCI
in this case was found inoperable) and if it trips immediately. See A. L. Baumgartner Construction,
Inc., 16 BNA OSHC 1995, 1999, 1994 CCH OSHD 7 30,554 p. 42,274 (No 92-1022, 1994).
Therefore, the court concludes that the violation of $ 1926.403(b)(2) was properly classified as
serious.
In assessing a penalty, no credit is given to Harbert-Yeargin for size and history in that it
employs over 3,000 employees and in 1993 had been cited for serious violations of the Act (Tr. 36).
Credit is given for good ftith based on its written safety programs which Knopf considered in
compliance with the standards (Tr. 34). Also, the violative condition was immediately abated during
the inspection. In considering the gravity, it is noted that there was no record of any accidents
involving the NM wire; there was no noticeable degradation of the wire; the wire was in use for two
months; and protection was afforded by the GFCI.
Accordingly, a serious violation of $1926.403(b)(2) is affinned. A penalty of $1,000 is
assessed.
[
The citation provides that “employees using a flexible extension cord, to supply power to a
hand grinder, had reverse polarity when tested.”
Facts
Knopf testified that in the tipping bay area, he observed three employees using a flexible
extension cord to power a hand grinder. The extension cord was plugged into a Power Ranger
lo-LX generator (Exh. C-6; Tr. 37). The employees, who identified themselves as employed by
Harbert-Yeargin, were grinding metal. They were working on a concrete floor where Knopf
observed puddles of water (Tr. 37). In inspecting the extension cord, Knopf noted that the female
plug had been replaced and the plug lacked a strain relief (Tr. 37). Knopf tested the cord and found
it had reverse polarity (Tr. 38). The cord had orange markings which, according to Harbert-
Yeargin’s assured equipment grounding program, indicated that the cord had been tested in
May 1994 (Tr. 39). Also, the employees using the extension cord identified it as belonging to
Harbert-Yeargin. They told Knopf that they had not visually inspected the cord (Tr. 39,47). Knopf

                                                   6

testified that reverse polarity could result in electric shock to employees, particularly in this situation,
since Knopf found a non-functioning GFCI, a lack of strain relief, and there was standing water in
the area (Tr. 40-4 1,49050). The extension cord was immediately taken out of service (Tr. 40).
Cooper, former safety manager, testified that Harbert-Yeargin’s electrical safety program
involved both GFCIs and an assured equipment grounding program (Exhs. R-l, R-3; Tr. 245). He
testified that Harbert-Yeargin conducted complete inspections of cord sets and receptacles monthly
(Exh. R-3; Tr. 248). Such an inspection was done in May 1994, immediately prior to the June
inspection by Knopf. He stated that the two electricians used an ohm meter to check for reverse
polarity (Tr. 248). He estimated there were several hundred (300 to 500) electrical cords at the
jobsite (Tr. 248, 389). Based on reviewing Knopf s photograph of the extension cord, Cooper’
testified that it did not belong to Harbert-Yeargin because of the clear plastic plug. It was too
expensive (Exh. C-6; Tr. 243-244,268,369).
Discussion
Section 1926.404(a)(2) provides that:
No grounded conductor shall be attached to any terminal or lead so as to reverse
designated polarity.

    Based on the record, it is uncontroverted that $1926.404(a)(2) was applicable to the

conditions observed by Knopf; the terms of 5 1926.404(a)(2) were violated; and employees of
Harbert-Yeargin were exposed to the hazard of reverse polarity. Therefore, before a violation is
established, the issue of knowledge remains. Harbert-Yeargin argues that the extension cord was
not theirs and it did not know, or should have known, of the reverse polarity. It was not in “plain
view” (Harbert-Yeargin’s Brief, pg. 11).
In establishing knowledge, an employer has a duty to inspect its work area for hazards. Even

if Harbert-Yeargin lacks actual knowledge, it can be charged with constructive knowledge of
conditions that could be reasonably detected through an inspection of the worksite. Where the
employer maintains an appropriate monitoring or inspection program, the burden is on the Secretary

      I Cooper was not present during the complete walkaround inspection. He became involved in the OSHA

inspection because of a confrontation between Knopf and another safety manager (Tr. 230). The confkontation was
described as two individuals not acting as mature adults (Tr. 223).

                                                   7

to demonstrate the employer’s failure to discover the violative conditions was due to a lack of
reasonable diligence. MiZZiken& Co., 14 BNA OSHC 2079,2083, 1991-93 CCH OSHD 7 29,243,
pp. 39,177.78 (No. 84-767, 1991), afd, 947 F.2d 1483 (11th Cir. 1991).
The record in this case reflects that Harbert-Yeargin failed to make a reasonable effort to
anticipate the particular hazards to which its employees were exposed in the course of their
scheduled work. Automatic Sprinkler Corp. ofAmerica, 8 BNA OSHC 1384, 1387, 1980 CCH
OSHD 7 24,495, p. 29,926 (No 7605089,198O); Face Constr. Corp., 14 BNA OSHC 2216,2221,
1991-93 CCH OSHD 7 29,333, p. 39,431 (No. 86-758, 1991). A reasonable effort would have
detected the reverse polarity even if not in plain view.
A visual observation of the extension cord would have detected the replaced female plug and

the lack of strain relief. Such defects or alterations to the extension cord were plainly visible.
Although Harbert-Yeargin’s inspection of cord sets and receptacles was done monthly,2

§ 1926*@w(1)~ iii ) re 9uires cords to be visually inspected before each day’s use, after any repairs,
and after any incident which could reasonably be suspected to have caused damage. Also, Harbert-
Yeargin’s assured equipment grounding program instructed employees to visually inspect each cord
set before each days’ use for external defects. If found defective, employees were instructed not to
use the cord until repaired (Exh. R-l, pg. 2 of 7). In this case, employees using the extension cord
told Knopf that they were unfamiliar with Harbert-Yeargin’s inspection requirements. They
admitted to not inspecting the cord. If the cord had been inspected, the lack of strain relief and a new
plug would have been detected. The extension cord would have been taken out of service for repairs
and testing. Testing would have found the reverse polarity. By not visually inspecting this
extension cord for obvious defects and alterations, there was no testing for reverse polarity.
Therefore, the court concludes that reasonable diligence, as provided in its written program, would
have detected the reverse polarity and Harbert-Yeargin’s constructive knowledge of the violative
condition is established.
The question of ownership of the extension cord is irrelevant and not supported by the record.
Harbert-Yeargin has a duty to protect its employees. Its employees were using the cord. Also,

    2 Section 1926.404@( l)(iii)(F) re quires inspections “at intervals not to exceed 3 months.”

                                                     8

Cooper testified that company rules did not prohibit employees from using extension cords
belonging to other contractors (Tr. 3’70). Therefore, Harbert-Yeargin was responsible for the use of
the extension cord and the protection of its employees. Further, the record does not establish that
the cord did not belong to Harbert-Yeargin. Cooper’s testimony as to ownership of the cord was

speculative and based on receiving a photograph taken by Knopf. The cord was marked with
Harbert-Yeargin’s orange inspection code. Also, the employees on site identified it as belonging to
Harbert-Yeargin (Tr. 39).
Thus, the record in this case establishes a violation of 8 1926.404(a)(2). Also, it was

properly classified as serious. The three employees using the extension cord to run the grinder were
exposed to a shock hazard which could have caused serious injury or death.
In assessing a penalty, consideration is given to Harbert-Yeargin’s size, good faith and
history as previously discussed. The cord was immediately taken out of service. Also, consideration
is given to the fact that Harbert-Yeargin had two full-time electricians on site; there were 300 to 500

cords; and it utilized both GFCIs and an assured equipment grounding conductor program. As for
gravity, there is no evidence as to how long the employees were using the extension cord. However,

the three employees using the cord showed a lack of knowledge of Harbert-Yeargin’s assured
grounding equipment program and its requirement to inspect before use.
Accordingly, a serious violation of § 1926.404(a)(2) is established. A penalty of $500 is
assessed.
Item 3a - Alleged Violation of 6 1926.404(b)(1 Miii)(C>
The citation alleges that the “employer did not implement the inspection of cord sets that
were not part of the building. The Power Ranger lo-LX generator which did not have working
GFCIs and the cord set plugged into the generator had been missing a strain relief and showed
reverse polarity had not been tested, visually inspected or taken out of service.”
Facts
This is the same extension cord and Power Ranger discussed in item 2 above in the tipping
bay where three of Harbert-Yeargin’s employees were observed using a hand grinder.
 Discussion

   Section 1926.404(b)( l)(iii)(C)    provides:
    Each cord set, attachment cap, plug and receptacle of cord sets, and any equipment
    connected by cord and plug, except cord sets and receptacles which are fixed and not
    exposed to damage, shall be visually inspected before each day’s use for external
    defects, such as deformed or missing pins or insulation damage, and for indications
  . of possible internal damage. Equipment found damaged or defective shall not be used
    until repaired.

   As discussed previously, Harbert-Yeargin’s employees are required to inspect cords before

each day’s use. In addition to GFCIs, Harbert-Yeargin maintained an assured equipment grounding
conductor program at this site. Under such a program, the standard provides for visual inspection
of electrical equipment to detect external defects or damage prior to each day’s use. If found
defective, the equipment is to be taken out of service and not used until repaired. Similarly, Harbert-
Yeargin’s assured grounding program in effect at the site provides that “the employees shall be
instructed that each cord set, and any equipment connected by cord and plug . . . shall be visually
inspected by the user before each day’s use for external defects . . . . Equipment found damaged
or defective will not be used until repaired” (Exh. R-l, pg. 2 of 7).
Visual inspection would have detected the lack of strain relief and the replaced female plug.
However, the three Harbert-Yeargin employees using the grinder told Knopf they had not inspected
the cord set and that they did not understand the visual inspection requirements of Harbert-Yeargin’s
assured grounding program (Tr. 47-49, 143-144). Also, Knopf testified that the electrician stated
that tests on cords were not being done (Tr. 59). Thus, the Secretary has established a violation of
5 1926.404@( l)(iii)(C). However, Harbert-Yeargin asserts, as affirmative defenses, employee
misconduct and the multi-employer defense. The court concludes that the record does not establish
either defense in this case.
In order to establish employee misconduct, Harbert-Yeargin must show that:
The action of its employee represented a departure from a work rule that the
employer has uniformly and effectively communicated and enforced.

Mosser Construction Co., 15 BNA OSHC 1408, 1414, 1991 CCH OSHD 129,546, p. 39,905
(No. 89.1027,199 1). However, Harbert-Yeargin presented no evidence that employees were trained

                                                  10

to perform visual inspections of electrical equipment. Cooper’s testimony was general in nature and
not substantiated. The safety meeting records do not reflect this training nor was any documentation
offered as required by Harbert-Yeargin’s assured grounding program. The employees’ safety
handbook for electrical safety does not provide for visual inspections (Exhs. R-2, C-13). According
to Cooper, the safety handbook was reviewed with new employees (Tr. 257-258). Also, the
evidence fails to show that visual inspections of electrical equipment, as required by
5 1926.404@( l)(iii)(C) and its own assured grounding program, were communicated and enforced.
There was no evidence offered by Harbert-Yeargin which refuted the statements made by the three
employees to Knopf that they were unfamiliar with the inspection requirements of Harbert-Yeargin’s
assured grounding program. Such statements are given weight in accordance with Rule 80 1(d)(2)
of the Federal Rules of Evidence. Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126,
1981 CCH OSHD T[25,578 (No. 7806247,198l). Thus, employee misconduct is not shown.
Likewise, Harbert-Yeargin’s multi-employer defense is not shown based on the record. To
prove the multi-employer worksite defense, Harbert-Yeargin must prove by a preponderance of the
evidence that it:

    (1)       did not create the hazardous condition;

    (2)       did not control the violative condition such that it could have realistically
              abated the condition in the manner required by the standard; and

    (3)       took reasonable alternative steps to protect its employees or did not have and
              could not have had with the exercise of reasonable diligence notice that the
              violative condition was hazardous.

Capform, Inc., 16 BNA OSHC 2040,2041, 1994 CCH OSHD 7 30,589, p. 42,355 (No 91-1613,
1994). In this case, even if the extension cord did not belong to Harbert-Yeargin as stated by
Cooper?, the record shows that Harbert-Yeargin controlled the cord. Its employees were permitted
to use extension cords belonging to other contractors (Tr. 376). The employees were using the
extension cord to operate a grinder used to accomplish Harbert-Yeargin’s job. Also, there was no

    3     The three employees thought the cord belonged to Harbert-Yeargin (Tr. 39).

                                                    11

showing of any reasonable alternative steps taken to protect its employees or that it could not have
known of the violative condition. Therefore, a multi-employer defense is rejected.
By failing to inspect the extension cord and exposing employees to an electrical hazard, a
serious violation is established. In determinin g an appropriate penalty, consideration is given to the
credit factors previously discussed, the exposure of three employees, and the multiple deficiencies
found with the extension cord (inoperable GFCI, lack of strain relief, reverse polarity).
Accordingly, a serious violation of 5 1926.404(b)( l)(iii)(C) is affirmed. A penalty of $500
is assessed.
Item 3b - Alleged Violation of 5 1926.404(b)(l)(iii)(D)
Also, in the tipping bay, Harbert-Yeargin is cited because the “employer did not implement

the testing of receptacles which were not part of the permanent building wiring. The receptacle on
the Power Ranger lo-LX, which had a GFCI on each, did not operate to protect the employee.”
Facts
This citation involves the same Power Ranger which provided electrical power to operate the
hand grinder used by the three employees discussed in items 2 and 3a above. When Knopf checked
the GFCI, he found it inoperable (Tr. 45). He showed the employees how to check the GFCI
(Tr. 49).
Discussion
Section 1926.404(b)( l)(iii)(D) provides:
The following tests shall be performed on all cord sets, receptacles which are not a
part of the permanent wiring of the building or structure, and cord- and
plug-connected equipment required to be grounded:

            (1)     All equipment grounding conductors shall be tested for
                    continuity and shall be electrically continuous.

            (2)     Each receptacle and attachment cap or plug shall be tested for
                    correct attachment of the equipment grounding conductor.
                    The equipment grounding conductor shall be connected to its
                    proper terminal.

    Under an employer’s assured equipment grounding program, 5 1926.404(b)( l)(iii)(D)

requires testing of the receptacles on the Power Ranger (Exh. C-7). There is no question that the

                                                12

receptacles were not a part of the building’s permanent wiring. However, the receptacle in this case
was a GFCI which is not covered by an employer’s assured equipment grounding program. The
GFCI is an alternative grounding program under 5 1926.404 (b)(l)(ii). To require testing of the
GFCI under the standards applicable to an assured equipment grounding program would mix the
requirements of two alternative programs. An employer would not recognize any benefit in having
a GFCI program if it was also required to comply with standards applicable to an assured equipment
grounding program. Section 1926.404@( l)(iii)(D) is inapplicable to the condition of the GFCI.
Further, even if the cited standard is applicable, there is no requirement for daily testing.
Section 1926.404(b)( l)(“‘)
in re quires visual inspection before each day’s use. Testing is required
before first use and at intervals not to exceed three months. The Secretary’s evidence ftils to
establish that the GFCI was not tested. There was no showing as to how long the GFCI was
inoperable.
Therefore, the alleged violation of 5 1926.404(b)( l)(iii)(D) is vacated.
Item 3c - Alleged Violation of 6 1926.404(b)(l )(iii)(G1
Herbert-Yeargin is cited at the same area for “cord sets and receptacles in use by employees
under the Assured Grounding Program were not recorded and available to the Secretary’s
Representative when defective cord sets, (strain relief missing, reverse polarity) and non-working
GFCIs (on the Power Ranger generator lo-LX) were in use.”
Facts
This violation was cited based on the condition of the extension cord used by three
employees operating the hand grinder as previously discussed. Knopf found that the extension cord
was lacking a strain relief, had reverse polarity, and was connected to an inoperable GFCI.
Discussion
Section 1926.404(b)(l)(iii)(G) provides that:
Tests performed as required in this paragraph shall be recorded. This test record shall
identify each receptacle, cord set, and cord- and plug- connected equipment that
passed the test and shall indicate the last date it was tested or the interval for which
it was tested. This record shall be kept by means of logs, color coding, or other
effective means and shall be maintained until replaced by a more current record.
The record shall be made available on the jobsite for inspection by the Assistant
4
Secretary and any af5ected employee.

                                               13

The deficiencies found by Knopf are not evidence that tests were not being performed and

recorded as required by 5 1926.404@( l)(iii)G). In this case, Harbert-Yeargin recorded its tests by

color coding as permitted by the standard The extension cord was marked with orange tape which
was Harbert-Yeargin’s May 1994 color code. Harbert-Yeargin’s assured program used color coding
which showed the testing for proper grounding with colored tape designated for that month. The
program satisfies the requirements of $ 1926.404(b)( l)(iii). A copy of the program and test records
were available to Knopf (Exh. R-l, R-3).
Accordingly, the alleged violation of 5 1926.404(b)( l)(iii)(G) is vacated.
Item 4 - Alleged Violation 6 1926.405(a)(2)(ii)(Bl
The citation alleges that “NM. 10-2 electrical wire was laid on the ground in waste materials,
employees walking on it and was subject to damage. Wire was not supported every 10 feet when
it entered the building.”
Facts
The NM. lo-2 electrical wire was used to provide temporary power to the tunnel as discussed
in item 1 above. There is no dispute that the NM wire was laying on the ground in a debris area and
over a cement floor at the entrance to the residue building (Exhs. C-2, C-3, C-4, C-8). In the residue
building, it also traveled along an expanse of blank wall (Tr. 384). Employees were observed
walking in the area of the NM wire. It was exposed to employees walking on it or being damaged
by construction material and equipment. The NM wire was not protected in any manner from
possible damage or fastened at intervals.
Discussion
Section 1926.405(a)(2)(ii)(B) provides in part:
Runs of open conductors shall be located where the conductors will not be subject
to physical damage, and the conductors shall be fastened at intervals not exceeding
10 feet (3.05 m).

    The record establishes a violation of $ 1926.405(a)(2)(ii)(B).       Harbert-Yeargin does not

dispute that the NM wire was exposed to physical damage or that the wire was not fastened at least
every 10 feet. However, Harbert-Yeargin asserts infeasibility as an affirmative defense.

                                                14

To establish infeasibility, Harbert-Yeargin must show that:
1. Literal compliance with the terms of the standard was infeasible under the
existing circumstances; and

   2.      An alternative protective measure was used or there was no feasible
           alternative measure.

State Sheet Metal Co., 16 BNA OSHC 1155, 1160, 1993 CCH OSHD 7 30,042, p. 41,226
(No. 90-1620, 1993). Infeasibility is shown if implementation would have been technologically or
economically infeasible, or necessary work operations would have been technologically or
economically infeasible after its implementation. VXP. Structures, 16 BNA OSHC 1873,1994 CCH
OSHD 7 30,185 (No. 91-l 167,1994). However, employers are expected to exercise some creativity
in seeking to achieve compliance. Pitt-Des Moines, Inc., 16 BNA OSHC 1429, 1993 CCH
I OSHD
7 30,225 (No. 90-1349,1993). The fact compliance is difficult or expensive is insufficient grounds
for failing to comply with the requirements of the standard. Hughes Brothers, Inc., 6 BNA
OSHC 1830,1978 CCH OSHD 7 22,909 (NO. 12523,1978). Also, “reasonable” alternative requires
limited compliance even if exact compliance is not possible. Cleveland Consolidated, Inc v. OS’RC,
649 F.2d 1160, 1167 (5th Cir. 1981).
In this case, the record ftils to establish that the NM. wire could not have been protected from
physical damage and fastened at least every 10 feet. Knopf testified that staples or wire hangers
could have been used to support the wire (Tr. 64). Harbert-Yeargin concedes that supports could
have been installed or holes drilled for staples or hangers (Harbert-Yeargin’s Brief, pg. 22).
However, it argues that it would have to repair any holes in the walls. Such an excuse is not
sufficient to avoid compliance. Cooper, safety manager, conceded that the holes could be repaired
(Tr. 386, 388). This might require some delay and additional cost, but nothing was shown that it
would be economically infeasible.
Based on Harbert-Yeargin’s knowledge ofthe condition in that it installed the NM wire, and
the nature of injury if an accident occurred, the violation is properly classified as “serious.” In
addition to the credit factors previously discussed, the gravity for penalty purposes is considered low.
The wire was in place for only two months and showed no signs of visible damage. Also,

                                               15

Harbert-Yeargin used both GFCIs and an assured grounding program. Further, this is the second
citation involving the same NM wire.
Accordingly, a serious violation of 6 1926.405(a)(2)(ii)(B) is affirmed. A penalty of $500
is assessed.
Item 5 - Alleged Violation of 5 1926.405(g)(2)(iv)

    The citation alleges that “employees were using a 4.5 inch sander/grinder which was supplied

power through a flexible cord. Female plug end of flexible cord was pulled away, exposing inner I
conductors and placing a strain on the screw terminals of conductors.”
Facts
In inspecting the extension cord used by three employees to operate the hand grinder
discussed in items 2 and 3 above, Knopf observed that the female plug end was pulled away,
exposing inner conductors. There was no strain relief.
Harbert-Yeargin presented no evidence disputing the conditions observed by Knopf.
Discussion
Section 1926.405(g)(2)(iv) provides that:
Flexible cords shall be connected to devices and fittings so that strain relief is
provided which will prevent pull from being directly transmitted to joints or
terminals screws.

    It is uncontroverted that 8 1926.405(g)(2)(iv) applies to the conditions cited; the terms of the

standard were violated; and employees of Harbert-Yeargin were exposed to the hazard created by
the lack of strain relief. Also, based on visibility, Harbert-Yeargin had constructive knowledge of
the condition of the extension cord. Thus, a violation of 5 1926.405(g)(2)(iv) is established.
While not disputing the violation, Harbert-Yeargin questions the classification as “serious”
(Harbert-Yeargin’s Brief, pg. 23). However, the record shows the lack of strain relief was in plain
view. It should have been detected during the inspection of the extension cord before use. See
Bland Constr. Co., 15 BNA OSHC 1031, 1032, 1991-93 CCH OSHD T[ 29,325, p. 39,392
(NO. 87-992, 1991). Also, in determinin g whether a violation is serious, the issue is not whether an
accident is likely to occur; it is rather whether the result would likely be death or serious physical
harm if an accident should occur. Whiting-Turner Contracting Co., 13 BNA OSHC 2155’2157,

                                               16

1989 CCH OSHD 7 28,501, p. 37,772 (No. 87-1238, 1989). Based on the record, the lack of strain
relief exposed the employees to possible shock hazard which could cause serious injury.
In addition to the size, history and good faith credit factors previously discussed, the court
consideres for gravity purposes that there were three employees exposed to the condition and they
were standing on a wet cement floor. Also, the extension cord showed reverse polarity and an
inoperable GFCI. The condition was readily visible. However, the same extension cord is the
subject of a number of other violations of the standards for which separate penalties have been
assessed.
Accordingly, a serious violation of $ 1926.405(g)(2)(iv) is affirmed. A penalty of $500 is
assessed.
Item 6 - Alleged Violation of 6 1926.451(a)(3)
The citation alleges that in the boiler room, the “elevation 28 - 30 feet high tubular welded
scaffiold was erected that exceeded 4 times minimum width which a competent person would have
known and cross bracing was used on the 23 feet scaffold instead of guardrails.”
Facts
Knopf observed two mobile tubular welded scaffolds in the boiler room, one 23 feet in
height and the other 30 feet in height. Both scaffolds were 5 feet wide at the base (Exhs. C-1 0, C-
11; Tr. 87-88). There were no outriggers or guy wires securing the scaffolds (Tr. 90). Also, he
observed an employee climbing the 230foot scaffold. The employee was immediately brought down
before reaching the platform (Tr. 89). He observed no other employees on the scaffolds. On the
23.foot scaffold, there was crossbracing on one side of the platform instead of a guardrail (Exh.
C-10; Tr. 97-98). Because of the height of the scaffolds, Knopf considered there was a hazard of the
scaffold tipping over (Tr. 92). Employees in the area told Knopf they had used the two scaffolds
prior to the inspection (Tr. 91). Also, Knopf observed nothing to prevent the use of the scaffolds
(Tr. 94, 108).
Knopf discussed the scaffolds with the employee who erected them. He believed the
employee was named Sanchez (Tr. 112). The employee told Knopf he had learned to build
scaffolds on the job and that he “builds them as the supervisor requests me to do so” (Tr. 116-l 17).
Knopf testified that this employee did not think there was a problem with the two scaffiolds (Tr. 119).

                                              17

Based on the defects observed in the scaffolds, Knopf concluded the sctiolds were not erected by
a “competent person.”
Cooper testified that Valentine Chavez, and not Sanchez, was the employee introduced to
Knopf (Tr. 294). Chavez was in charge of supervising the erection of scaffolds at the jobsite
(Tr. 287-288). Cooper opined that Knopf had a problem understanding Chavez’s Spanish accent
(Tr. 292). According to the record, Chavez completed four years of college in Mexico and had over
six years’ prior experience in erecting scaffolding (Exh. R-5; Tr. 292). Also, Cooper testified that
Harbert-Yeargin used a scaffolding tag procedure - “red tag” means sctiold incomplete and if fall
protection necessary; and a “green tag” means scaffold is authorized for release to employees
(Exhs. R-l 1, R-12; Tr. 308-309). If there is no tag, the scaffold should not be used (Tr. 308).
Discussion
Section 1926.45 1(a)(3) provides that:
No scaffold shall be erected, moved, dismantled, or altered except under the
supervision of competent persons.

   The standard requires the use of “competent persons” in erecting scaffolds. Section 1926.32,

which has general application, defines “competent person” as:
One who is capable of identifying existing and predictable hazards in the
surroundings or working condition which are unsanitary, hazardous, or dangerous to
employees, and who has authorization to take prompt corrective measures to
eliminate them.

   Based on the record, Chavez’s application shows experience and education in erecting

scaffolds. Chavez was responsible for erecting the scaffold at this site. The Secretary’s evidence
fails to show that Chavez was not a “competent person” within the meaning of $ 1926.45 l(a)(3).
The Secretary’s reliance on the defects observed by Knopf does not necessarily show that the erector
was incompetent. The definition of “competent person” is one who is capable of identifying
existing and predictable hazards. Chavez has not been shown to be incapable of identifying existing
and predictable hazards. See Voker Stevin Construction, Inc., 14 BNA OSHC 1881, 1987-90 CCH
OSHD T[29,138 (No. 89-1253, 1990). Even if the sctiold were erected with defects, the defects do
not per se establish Chavez was not capable of erecting a proper scaffold. A person can be capable

                                             18

of identifying existing and predictable hazards and still fail to erect a proper scaffold by reason of
many other factors. Knopf s statement that Chavez could not identify the defects is not given
weight. Knopf incorrectly identified the person responsible for erecting the scaffolding. This
indicates a possible language or communication problem between Knopf and Chavez.
Thus, the alleged violation of $ 1926.45 1(a)(3) is vacated.
Item 7 - Alleged Violation of 6 1926.45 l(a)(4)
In the #2 boiler, the citation alleges that “an employee, on a metal scaffold, that was only
planked 19.5 inches wide and was at a height of 55 inches above the ground, was welding and not
protected by guardrails on either open end or behind the employee.”
Facts
At the bottom of the #2 boiler, Knopf observed a Harbert-Yeargin welder working from a
metal scaffold. The scaffold planking was 55 inches above the floor. The wooden planking on which
the welder was standing was 19.5 inches wide. It was not fully planked (Exh. C-9; Tr. 75). There
were no guardrails. The welder was working above her head. .According to Knopf, the welder could
have fallen to her left in a 17-inch opening between the scaffold and another structure or she could
have fallen off either end of the scaffold (Tr. 77-80). An obstruction prevented any guardrail on the
right (Tr. 82). However, nothing prevented the scaffold from being fully planked so that guardrails
would not be required (Tr. 83-85). Knopf opined that the likely injuries from a fall from the sctiold
were fractures, contusions, broken bones, and sprains (Tr. 82).
Harbert-Yeargin notes that the welder was wearing a lanyard (Exh. C-9, Tr. 157). Although
not attached, Cooper speculated that the welder had forgotten to tie off (Tr. 354, 358). Harbert-
Yeargin’s safety manual and employee safety handbook require employees exposed to a fall hazard
to wear a safety belt (Exh. R-6, R-7; Tr. 295). The welder signed an acknowledgement upon
receiving the safety handbook when she was hired (Exh. R-8, Tr. 295).
Jefiey Kowal, resident construction manager for Ogden Projects, Inc, testified that during
his walkarounds of the project, he observed the scaffold prior to the OSHA inspection. He saw
welders on the scaffold not tied off with safety belts (Tr. 217). However, because of the height of
the scaffold, he did not think a safety belt was necessary or that it was unsafe (Tr. 219-220).

                                                19

Discussion
Section 1926.45 1(a)(4) requires:
Guardrails and toeboards shall be installed on all open sides and ends of platforms
more than 10 feet above the ground or floor . . . . Scaffolds 4 feet to 10 feet in height,
having a minimum horizontal dimension in either direction of less than 45 inches,
shall have standard guardrails installed on all open sides and ends of the platform.

   It is uncontroverted that the scaffold violated the standard; the welder was exposed to a fall

of more than four feet; and Harbert-Yeargin should have known of the violative condition. In
defense, Harbert-Yeargin asserts employee misconduct and infeasibility. However, the record fails
to establish either affirmative defense.
In attempting to show employee misconduct, Harbert-Yeargin points to its work rule which
requires safety belts when working on unguarded platforms above 4 feet (Exh. R-7). New
employees are informed of the safety rules. The welder in this case signed that she had read the rules
when hired (Exh. R-8). According to Cooper, the safety belt rule was repeatedly discussed at the
weekly toolbox safety meetings (Exh. R-9; Tr. 302-305). Also, Cooper testified to regular
inspections of the jobsite and the company discipline procedure (Tr. 215,219,296-297).
However, the record shows that Harbert-Yeargin’s safety rules are confusing. In its
corporate policy manual, which contains the work rules enforced by supervisors, the safety belt rule
requires tying off at heights above 6 feet instead of 4 feet (Exh. R-6). Also, based on Kowal’s
testimony, it was not just one welder observed not using a safety belt. Kowal observed other welders
not tied off immediately prior to the inspection. Therefore, there appears to be no uniformly
communicated or enforced work rule. ,
Similarly, as to infeasibility, the record establishes that the scaffold was under a vibrator
chute which descended diagonally over the scaffold, forming an acute angle. This prevented a
guardrail on the left side of the scaffold (Exh. C-9). However, a guardrail could have been installed
on the other sides. Although it would not fully comply with the terms of the standard, Harbert-
Yeargin nevertheless was required to comply to the extent that compliance is feasible. Walker
Towing Corp., Paducah River Service, 14 BNA OSHC 2072,2075,1991-93 CCH OSHD 7 29,239,

                                               20

p. 39,159 (No. 87-1359, 1991). Additionally, Harbert-Yeargin failed to utilize feasible alternative
measures such as fully planking the scaffold.
The violation was serious in that the welder’s injury would most likely have been contusions
or abrasions if she had fallen. Also Harbert-Yeargin should have known of the violative condition
in that it was in plain view. In determinin g an appropriate penalty, the record shows one employee
exposed to a fall of 55 inches to a cement floor. Also, the employee was working in a precarious
position overhead, increasing the likelihood of an accident.
Accordingly, a serious violation of § 1926.45 l(a)(4) is affirmed. A penalty of $1,000 is
assessed.
Item 8 - Alleged Violation of ci 1926.45 1(e)(l)
Harbert-Yeargin was cited because the height of two free-standing manually propelled
scaffolds, 23 feet and 30 feet high, with a minimum base of 5 feet wide, exceeded four times the
minimum base.
Facts
The two scaffolds were discussed in item 6 above. Knopf testified that the base of each
scaffold measured 5 feet wide. Based on the minimum base dimension, Knopf concluded that the
height of the scaffold should have been limited to 20 feet (Exh. C-10; Tr. 88). There were no
outriggers or guy wires attached to the scaf’folds (Tr. 90). He observed an employee climbing one
of the scaffolds who was removed upon Knopf s request (Tr. 89). Also, employees told him that
they had used the two scaffolds prior to the inspection (Tr. 91).
Cooper testified that Harbert-Yeargin utilized a tagging procedure for scaffolds. A green tag
meant the scaffold was complete and a red tag showed the scaffold was incomplete (Exh. R-10;
Tr. 308). The scaffolds observed by Knopf were not tagged which, according to Cooper, meant the
scaffold could not be used (Tr. 167,308). He testified that the scaffold was being erected and not
completed for use.
Kowal, resident construction manager for Ogden Projects, Inc., testified he had not seen
employees on the scaffold prior to the OSHA inspection (Tr. 213). However, he recalled seeing the

two scaffolds for two to three days prior to the inspection. He did not see anyone erecting them
(Tr. 213). He believed the sctiolds were in use (Tr. 213). He did note that Harbert-Yeargin was

                                             21

responsible for installing the overhead fire sprinkler system (Tr. 214). This would have required the
use of scaffolds to be installed.
Discussion
Section 1926.45 1(e)(l) provides that:
When free-standing mobile scaffold towers are used, the height shall not exceed four
times the minimum base dimension.

    It is uncontroverted that the 23.foot and 30-foot scaffolds with a base of 5 feet were higher

than four times the minimum base dimension. Also, the record shows the scaffolds belonged to
Harbert-Yeargin. In dispute, Harbert-Yeargin asserts that 5 1926.45 l(e)( 1) is not the applicable
standard and there was no employee exposure. Also, Harbert-Yeargin asserts that if a violation is
determined, there was employee misconduct.
Instead of $ 1926.45 l(e)(l), Harbert-Yeargin maintains that 5 1926.453(a)(3)(I) provides a
more comprehensive safety guidance for “manually-propelled mobile ladder stands and scaffolds
(towers).” However, the two standards provide the identical requirements. Both standards apply
to manually propelled mobile scaffolds and limit the height of the scaffold to four times the
minimum base dimension. Since the two standards are specific, address the same hazard and require
the same terms for compliance, 8 1926.45 1(e)( 1) has not been shown inapplicable.
As for employee exposure, the Secretary argues that the two scaffolds were available for use.

However, the employees who said they had worked on the scaffold were not identified. If used prior
to the inspection, there was no showing that the sctiolds were erected the same as observed by
Knopf or what the employees were doing. Therefore, little weight is given to the hearsay statements.
However, during the inspection, one employee was observed climbing one of the scaffolds
(Exh. C-10). In that the employee was climbing the scaffold which was not otherwise secured from
tipping over, a violation of 5 1926.45 l(e)( 1) is shown.
Although Harbert-Yeargin utilized a tagging program, the record shows the employee was
climbing a scaffold that did not have a tag (Exh. R-10). Under its program, “no person shall work
from a scaffold that has not been appropriately tagged. The only exception shall be for crews whose
responsibility it is to erect and dismantle scaffolds, and then only when working a specified scaffold,’
(Exh. R-10). Therefore, the employee was not specifically prevented from climbing the scaffold by

                                              22

the work rule. Cooper testified they were erecting the scaffold. Thus, there is insufficient evidence
to support an employee misconduct defense.
The record establishes the violation was serious in that the scaffold was observed in place
for at least three days, and it was Knopf who directed Harbert-Yeargin to bring the employee down
from the scaffold (Tr. 89). Also, the employee was subject to a fall hazard onto a concrete floor.
In addition to the credit factors previously discussed, there was at least one employee exposed to the
hazard of a scaffold tipping over. However, the employee’s exposure was of a short duration.
Accordingly, a violation of 5 1926.45 1(e)( 1) is aff nmed. A penalty of $500 is assessed.
Item 9 - Alleged Violation of $ 1926.45 1(e)(lO)
Finally, the citation alleges that “a mobile tubular welded scaffold was using crossbracing
in place of guardrails on a 230foot high scaffold.”
Facts
Knopf testified that on one side of the 23-foot scaffold platform there was crossbracing
instead of standard guardrails and toeboards (Exh. C-10; Tr. 97). The other three sides had standard
guardrails. Knopf testified that crossbracing coot take the place of guardrails because it did not
provide 42 inches across the top (Tr. 189). An employee was observed climbing onto the scaffold,
but he was removed from the scaffold before reaching the platform (Tr. 101). No employee was
observed on the platform. Also Kowal did not see the scaffold being used for work.
Cooper testified the scaffold was under erection at the time and that a guardrail would
prevent the positioning of the vertical bucks used to build the scaffold (Tr. 363,365). He testified
that while erecting the scaffold, Harbert-Yeargin required employees to tie off (Tr. 362).
Discussion
Section 1926.45 1(e)( 10) provides:
Guardrails made of lumber. . ., approximately 42 inches high, with a midrail . . ., and
toeboards, shall be installed at all open sides and ends on all scaffolds more than 10
feet above the ground or floor.

    It is uncontroverted that the scaffold had crossbracing on one side instead of a guardrail.

Also, Harbert-Yeargin knew of the condition based on its erection of the scaffold. However, the

record fails to establish employee exposure to the condition cited. Knopf did not observe any

                                              23

employees at the area of the crossbracing. The employee observed climbing the scaffold was
immediately brought down. There was no showing what the employee observed climbing the
scaffold, what he intended to do on the scaffold, or that he was not going to be tied off by a safety
belt. As to the other employees who said they had worked on the scaffold prior to the inspection;
little weight is given to their statements in that they were not identified; their statements were too
general in nature; and there was no showing that any employee actually worked on the 23.foot
sctiold platform exposed to a fall hazard from the crossbracing on one side of the platform.
Accordingly, the alleged violation of § 1926.45 1(e)( 10) is vacated.

                                  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
It is hereby ORDERED:
SERIOUS CITATION NO. l-

      1.      Item 1, 5 1926.403(b)(2), is affirmed as a serious violation with a penalty of $1,000
              assessed.
      2.      Item 2, $ 1926.404(a)(2), is affirmed as a serious violation with a penalty of $500
              assessed.
      3.      Item 3a, 5 1926.404@( l)(iii)(C), is affirm ed as a serious violation with a penalty of
              $500 assessed.
      4.      Item 3b, 5 1926.404(‘b)(l)(iii)(D), is vacated.
      5.      Item 3c, $1926.404@( l)(iii)(G), is vacated.
      6.      Item 4, 5 1926.405(a)(2)(ii)(B), is aff rimed as a serious violation with a penalty of
              $500 assessed.
      7.      Item 5’6 1926.405(g)(2)(iv), is af&m ed as a serious violation with a penalty of $500
              assessed.

                                                24

8. Item 6, 5 1926.45 1(a)(3), is vacated.
9. Item 7, 5 1926.45 1(a)(4), is afFirmed as a serious violation with a penalty of $1,000
assessed.
10 . Item 8, 5 1926.45 l(e)(l), is afTrimed as a serious violation with a penalty of $500
assessed.
11 . Item 9, 5 1926.45 1(e)( lo), is vacated.
OTHER THAN SERIOUS CITATION NO. 2 -

  1.     Item 1, 5 1926.59@(5)( ii ), is not considered in this decision since Harbert-Yeargin
         withdrew its notice of contest.




                                                    J   J   Y

                                                    K6N S. WELSCH
                                                    Judge

Date: March 25, 1996

                                             25

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