FPC, Inc., and its successors

Plain-English summary

FPC was the general contractor constructing an apartment complex in Houston. OSHA observed upper-floor balconies without guardrails and an employee clearing trash from a second-floor balcony without other fall protection. FPC disputed that any employee worked near the edge and said trash was collected using a forklift. The judge credited the compliance officer and former employee because their observations were consistent, the employee had given a confirming written statement, and no fall-protection equipment was present. The serious wall-opening violation was affirmed with a $4,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(14)
• Outcome: Affirmed. The serious wall-opening fall-protection violation was affirmed with a $4,000 penalty.
• Key point: Credible observations of an employee working at an unguarded balcony can establish exposure even when management witnesses say they did not see anyone near the edge.

Full text (OSHRC public release)

                                                           |
SECRETARY OF LABOR,                                        |
     Complainant,                                          |
                                                           |
          v.                                               |
                                                           |                 OSHRC DOCKET
FPC, INC., and its successors                              |                 NO. 99-0506
                                                           |
          Respondent.                                      |
                                                           |


APPEARANCES:

                         Raquel Tamez, Esq., Office of the Solicitor, U.S. Department of Labor,
                          Dallas, Texas

                         Jon L. Tankersley, Esq., Thompson, Knight, Brown, Parker & Leahy, L.L.P.,
                           Houston, Texas


Before:                  Administrative Law Judge Sidney J. Goldstein


                                       DECISION AND ORDER


          In this action the Secretary of Labor seeks to affirm a serious citation issued to the
Respondent for the alleged violation of a safety regulation adopted under the Occupational Safety
and Health Act of 1970. The matter arose after a compliance officer for the Occupational Safety and
Health Administration inspected a Respondent worksite, concluded that the company was in
violation of the regulation, and recommended that the citation be issued. The Respondent disagreed
with this conclusion and filed a notice of contest. After the Chief Judge of this Commission ordered
the issues be tried under the E-Z Trial procedure, a hearing was held in Houston, Texas.


          The citation alleged that:
Citation 1 Item 1      Type of Violation: SERIOUS
       Each employee engaged in construction activities near wall opening 6 feet or more above
lower levels were not protected by guardrail systems, safety net systems, or personal fall arrest
system.

a)     Second floor balcony of building 25. Employees clearing second floor balcony without fall
       protection.

in violation of the regulation found at 29 CFR 1926.501(b)(14) which provides:

       (14) Wall openings. Each employee working on, at, above, or near wall openings
       (including those with chutes attached) where the outside bottom edge of the wall
       opening is 6 feet (1.8 m) or more above lower levels and the inside bottom edge of
       the wall opening is less than 39 inches (1.0 m) above the walking/working surface,
       shall be protected from falling by the use of a guardrail system, a safety net system,
       or a personal fall arrest system.

       The salient facts may be briefly summarized. The Respondent is a general contractor, and
in November 1998, it was engaged in the construction of and apartment complex in Houston, Texas.
In response to a complaint concerning worker safety at the company’s workplace on Wilshire Place
Road in that city, the Occupational Safety and Health Administration dispatched two compliance
officers to investigate the allegation. On November 17, 1998, the representatives arrived at the
worksite and from a distance noted that balconies over six feet above ground level were without
guard rails. Respondent’s construction superintendent informed them that they could not inspect the
premises without a warrant. After obtaining a warrant, the agents returned to the property, again
noticing unguarded balconies. At that time, accompanied by officials of the Respondent and
subcontractor, they inspected the building site.
       According to the lead compliance officer, the upper floors of the apartment complex had no
guard rails. He observed men working on the second floor throwing trash off the balcony. There
was no fall protection. During the inspection OSHA people took pictures of the work scene and
spoke with one of the individuals on the balcony.




       In addition to the compliance officer, the Secretary called upon a former employee of the
Respondent who worked at the complex at the time of the inspection. This worker’s English was

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minimum, and he was assisted at the hearing by an interpreter. He confirmed that there were no
guard rails or other protective equipment on the second floor of the building as shown on the
pictures. He also furnished a signed statement to the OSHA officer to the effect that at the time of
the inspection he was cleaning trash from the second floor and throwing it down into a dumpster.
       The Respondent’s construction superintendent, director of human resources, and independent
safety consultant took issue with the information supplied by the compliance officer and former
employee. They asserted that no employee was near the edge of the balcony. In fact, the company
collected trash by a forklift which slid up to the balcony.
       In this case there is no dispute that Respondent’s employees were working on the Wilshire
project, and that there was no fall protection equipment on the second balcony which was more than
six feet above ground level.
       In its brief the Respondent argued that its witnesses were more credible than the compliance
officer and a former employee. As noted, Respondent’s officials did not see anyone working close
to the balcony edge. The brief faulted the compliance officer’s testimony and pointed out many
alleged inconsistencies in his version of the facts.
       With this diversity of opinion, I am placing more reliance upon the compliance officer’s
version of the facts because he observed the infraction on two occasions before the formal
inspection; because he saw an employee of the Respondent dropping trash from the balcony to the
dumpster; because the employee testified that he cleared trash from the balcony; because the
employee confirmed his testimony with a written statement to the same effect; and because there
were no guard rails or other protective fall safety equipment on the premises.
       Based upon the foregoing discussion, I find that at its worksite at Wilshire Place Road,
specifically at the second floor balcony of building 25, employees engaged in construction activity
near a wall opening six feet or more above ground level were not protected by a guard rail system,
safety net system, or personal fall arrest system. I conclude the Respondent was in violation of the
regulation found at 29 CFR 1926.501(b)(14). The citation is therefore affirmed.




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      Since there did not appear to be any quarrel with respect to the penalty, the recommended
penalty of $4,000.00 is AFFIRMED.




                                                         Sidney J. Goldstein
                                                         Judge, OSHRC

Dated: March 6, 2000




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