C & D European Stucco and Stone, Inc.

Plain-English summary

C & D European Stucco and Stone, Inc. installed insulation and stucco from scaffolding on a six-story motel project in Georgia. OSHA alleged that employees worked on unguarded scaffold areas and that a competent person had not made regular site inspections. The judge credited the employer's witnesses and the general contractor's superintendent, who said employees worked from bracket platforms with the building in front of them and guardrails or cross-bracing behind them. The compliance officer's video produced no usable evidence, and the Secretary did not prove that employees worked from the unguarded main scaffold frame. The judge also credited uncontradicted testimony that the company's competent person inspected the site twice on the inspection day. Both contested items were vacated, a training item was withdrawn, and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(2); 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.451(d)(10)
• Outcome: Scaffold and competent-person inspection items vacated, training item withdrawn, and no penalty assessed.
• Key point: The Secretary did not prove employee exposure to the unguarded scaffold area when credible eyewitness testimony placed the workers on guarded bracket platforms.

Full text (OSHRC public release)

))))))))))))))))))))))))))))))))))))))))))))),
Secretary of Labor, *
Complainant, *
*
v. * OSHRC Docket No. 96-929
*
C & D European Stucco and Stone, Inc., *
Respondent. *
)))))))))))))))))))))))))))))))))))))))))))))-

Appearances:

                 Curtis Gaye, Esquire                                    J. Larry Stine, Esquire
                 Frances B. Schleicher, Esquire                                   Wimberly & Lawson
                         Office of the Solicitor                                  Atlanta, Georgia
                         U. S. Department of Labor                                         For Respondent
                                  For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                                          DECISION AND ORDER
                 C & D European Stucco & Stone, Inc. (C&D), contests a citation issued to it by the

Secretary on June 20, 1996. The Secretary issued the citation following an inspection of C&D’s
worksite on June 6, 1996, by Occupational Safety and Health Administration (OSHA) compliance
officer Walter Dierks.
The Secretary alleged that C&D committed serious violations of three construction
standards. At the hearing, the Secretary moved to dismiss item 2 of the citation, alleging a
violation of § 1926.21(b)(2), which the undersigned granted (Tr. 5). The remaining items at issue
are item 1, which alleges a violation of § 1926.20(b)(2) for failure to have a competent person
make frequent and regular inspections of the job site, materials, and equipment; and item 3, which
alleges a violation of § 1926.451(d)(10) for failure to install guardrails on all open sides and ends
of scaffolds.
Background
General contractor Moore & Associates hired C&D as a subcontractor in May 1996 to
work on the construction of the Summer Suites Motel, located in Duluth, Georgia. C&D was to
apply insulation and stucco to the exterior of the six-story motel (Tr. 53, 66).
In order to apply the insulation and stucco, C&D erected tubular welded scaffolding
(Tr. 55). C&D’s employees would use the scaffolding to gain access to the exterior of the
building, to which they would use adhesive to attach large, flat panels of Styrofoam insulation,
measuring 2 feet by 4 feet or 4 feet by 8 feet. The employees would then hang a fiberglass mesh
over the surface and apply concrete or acrylic stucco with a trowel over the entire surface.
C&D’s employees worked on the building from the top down (Tr. 42, 57, 110).
Compliance officer Dierks arrived at the construction site at approximately 1:00 p.m., on
June 6, 1996, on a referral made by OSHA’s Area Director. Dierks met with William Woods, the
general superintendent for Moore & Associates, who accompanied Dierks on a walkaround
inspection of C&D’s scaffolding (Tr. 9, 72). At the time of the inspection, C&D employees were
working on scaffolds on the northern and eastern sides of the building (Tr. 9, 13, 55). Dierks
attempted to speak with some C&D employees, who either did not understand him or were
ignoring him (Tr. 28).
The Alleged Violations
Item 1 alleges that C&D violated § 1926.20(b)(2) by failing to have a competent person
inspect the scaffolding. Because the basis of this allegation is that the alleged inadequency of the
scaffolding would not have been countenanced by a competent person, the condition of the
scaffolding (item 3) will be addressed first.
Item 3: Alleged Serious Violation of § 19126.451(d)(10)
Section 1926.45(d)(10) 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 1x6 inch lumber (or other material
providing equivalent protection) and toeboards, shall be installed at
open sides and ends on all scaffolds more than 10 feet above the
ground or floor. Toeboards shall be a minimum of 4 inches in
height. Wire mesh shall be installed in accordance with paragraph
(a)(6) of this section.

   The Secretary has the burden of proving this violation.
   In order to establish a violation of an occupational safety or health standard, the
   Secretary has the burden of proving: (a) the applicability of the cited standard,
   (b) the employer’s noncompliance with the standard’s terms, (c) employee access
   to the violative conditions, and (d) the employer’s actual or constructive
   knowledge of the violation (i.e.,the employer either knew or, with the exercise of
   reasonable diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
 It is undisputed that the § 1926.451 (scaffolding) standard applied to C&D’s scaffolding.
The Secretary alleges that C&D’s scaffolding was not in compliance with the terms of
§ 1926.451(d)(10) because it failed to have guardrails on its scaffolding. C&D contends that
compliance officer Dierks was mistaken in his testimony, and that its scaffolding was in
compliance with § 1926.451(d)(10).
Dierks’s Testimony
Dierks testified that C&D’s employees were working on two metal boards that were
placed across the interior of the scaffolding on the northern and eastern sides of the building (Tr.
38, 41). Dierks stated that the scaffolding structure was erected 6 to 8 inches away from the side
of the building where insulation and stucco were being installed. He said that the employees
reached through the scaffolding to apply the materials to the exterior of the wall (Tr. 39, 49).
Dierks testified that there were no outriggers or brackets on the north side (Tr. 40). Dierks
contended that there were no guardrails behind the employees as they stood working on the two
metal boards (Tr. 41).
Dierks conceded that no guardrails were required on levels of the scaffolding where
employees were not working, and that C&D would have been in compliance if its employees had
been working off of brackets or outriggers with the building wall in front of them and a guardrail
behind (Tr. 42). Dierks testified that he had videotaped C&D’s scaffolding, but that the last time
he attempted to view the tape, “it didn’t work. There was nothing on the tape” (Tr. 37).

                        Testimony of Daniel and Constantin Moraru
   Constantin Moraru is the president of C&D (Tr. 87). His brother, Daniel Moraru, is the

vice-president and secretary of C&D (Tr. 52). Neither of them was at the worksite the time of
Dierks’s inspection.
Both Moraru brothers testified that their employees only worked on the area outside the
scaffolding structure that was supported by brackets or outriggers (Tr. 58, 134). Thus, they
worked on the area with guardrails behind them and the building exterior in front of them (Tr.
133). Constantin Moraru stated that, other than when C&D’s employees were erecting the
scaffold, they did not work on the inside of the scaffolding.
 Constantin Moraru was at the site in the morning and the afternoon of Dierks’s inspection
(Tr. 88). When Moraru was on the site in the morning, he observed guardrails erected behind the
outriggers or brackets where the C&D employees were working. C&D employees were engaged
in dismantling other areas of the scaffolding (Exh. J-1; Tr. 123-125).
Woods’s Testimony
The Secretary discounts the testimony of the Moraru brothers because neither of them was
on the site during Dierks’s inspection. Therefore, they cannot refute Dierks’s testimony regarding
what he observed. Woods accompanied Dierks on his walk-around inspection. Woods
corroborates Dierks’s testimony that there were no guardrails on the back of the main scaffolding
frame (Tr. 75-76). However, Woods testified that C&D’s employees were not working from the
main scaffolding frame. Rather, they were working from the brackets, which Woods referred to
as “toe board hangers,” with cross-bracing behind them (Tr. 82-84). Unlike the Moraru brothers,
Woods, a disinterested third party, was with Dierks at the time of his inspection. His testimony
casts doubt on the reliability of Dierks’s observations.
As C&D points out in its brief, if its employees were attempting to perform their work in
the manner attested to by Dierks, it would be with great difficulty (C&D’s Brief, pp. 9-10):
The employees would be working on a 20-inch wide platform on
the interior of scaffolding, reaching past the vertical and horizontal
supports of the scaffolding as well as the cross-bracing and
guardrails Dierks admitted were there to maneuver 2' by 4' or 4 by
8' sheets of Styrofoam insulation into place where they could be
affixed to the building’s exterior with adhesive. The sheets of
insulation would have to be tilted sideways to fit through the
openings, then rotated within the 6 to 8 inches of open space
between the scaffolding and the building wall to be positioned on
the adhesive. When it came time to apply the stucco, the
scaffolding would hamper the trowel movements, in all likelihood
producing an uneven finish. . . .
In contrast, by using the brackets or outriggers in the
manner testified to by both Constantin and Daniel Moraru, the
employees have unobstructed access to the building surface upon
which they are working. The 20-inch wide workspace supported
by brackets permits the employees to work on the entire surface of
the building exterior without having to work around scaffolding
supports. The insulation sheets, stacked behind the guardrail on the
interior of the scaffolding, can be moved into position without
requiring the workers to reach around posts. The unobstructed
 access to the building surface permits the even application of stucco
or effus.

   The testimony of the Moraru brothers regarding their work practices, along with Woods’s

eyewitness testimony regarding Dierks’s walkaround inspection is deemed more credible than
Dierks’s observations. Dierks may not have been as familiar with the stucco process as were the
other witnesses. Dierks apparently focused on the outside edge, which was without the
guardrails, not on the area from which the employees actually worked. The Secretary’s case is
hampered by the absence of photographic or videotaped evidence that shows the configuration of
the scaffolding and the location of the employees.
The Secretary has failed to establish that C&D did not guard the area of the scaffolding
where employees were working. There was no employee exposure on the main part of the
scaffolding, which was without guardrails but from which the employees did not work. C&D
provided guardrails on the backs of the outriggers where its employees were working. Item 3 is
vacated.
Item 1: Alleged Serious Violation of § 1926.20(b)(2)
Section 1926.20(b)(2) provides:
Such programs shall provide for frequent and regular inspections of
the job sites, materials, and equipment to be made by competent
persons designated by the employers.

   The Secretary’s evidence on this issue rests primarily on Dierks’s belief that if the

scaffolding was in violation of OSHA standards, no competent person could have inspected it.
The Secretary also presented Woods’s testimony that he had not seen Daniel or Constantin
Moraru at the worksite during the week of the inspection (Tr. 77).
Constantin Moraru testified that he was C&D’s competent person within the meaning of
the standard and that he had visited the site twice the day of the inspection and had inspected the
scaffolding (Tr. 88, 107). Woods admitted that Constantin Moraru could have come to the site
without his knowledge (Tr. 80-81).
The Secretary has failed to establish a violation of § 1926.20(b)(2). C&D’s designated
competent person testified without contradiction that he made frequent and regular inspections of
the worksite. In addition, the Secretary failed to prove its supporting theory for the violation, i.e.,
that the scaffolding was inadequate. Item 1 is vacated.
 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 hereby ORDERED:
1. Item 1 of the citation (§ 1926.20(b)(2)) is vacated and no penalty is assessed;
2. Item 2 of the citation (§ 1926.21(b)(2)) was withdrawn; and
3. Item 3 of the citation (§ 1926.451(d)(10)) is vacated and no penalty is assessed.

                                                 NANCY J. SPIES
                                                 Judge

Date: March 16, 1998