Pro Set Erectors, and its successors

Plain-English summary

At a construction site in Idaho, a Pro Set foreman unhooked his lanyard and climbed over the rail of an aerial-lift basket onto a stairway about 30 feet above the ground. The judge held that the lift basket was not an adequate catch platform because it did not reliably protect an employee climbing out of it from an exterior fall. The safety-net and fall-protection violation was affirmed, but the proposed $1,500 penalty was reduced to $700 because the exposure lasted only seconds and the basket was pushed tightly against the structure. Two aerial-lift items based on the same conduct were vacated because the cited provisions did not appear to apply and the items duplicated the affirmed violation.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.105(a), 1926.453(b)(2)(iv), and 1926.453(b)(2)(v)
• Outcome: Section 1926.105(a) violation affirmed with a $700 penalty; two aerial-lift items vacated.
• Key point: An aerial-lift basket is not a catch platform when it does not reliably protect an employee who climbs over its rail from an exterior fall.

Full text (OSHRC public release)

                                             United States of America
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,

                          v.                               OSHRC DOCKET NO. 01-0596

PRO SET ERECTORS, and its successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Patricia Drummond, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

      For the Respondent:
               John E. Redal, Esq., Redal & Redal, Coeur d’Alene, Idaho

Before: Administrative Law Judge: Benjamin R. Loye

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Pro Set Erectors, and its successors (Pro Set), at all times relevant to this action
maintained a place of business at 850 West Ironwood Boulevard, Coeur d’Alene, Idaho, where it was
engaged in construction, a class of activity which as a whole affects interstate commerce. Clarence M.
Jones d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No. 77-3676, 1983).
Respondent is, therefore, an employer engaged in a business affecting commerce and is subject to the
requirements of the Act.
On February 13, 2001 the Occupational Safety and Health Administration (OSHA) conducted
an inspection of Pro Set’s Coeur d’Alene, work site. As a result of that inspection, Pro Set was issued
a citation alleging violations of the Act together with proposed penalties. By filing a timely notice of
contest Pro Set brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
This case was designated for E-Z trial, and on July 6, 2001, an E-Z hearing was held in Coeur
d’Alene. The parties have submitted briefs on the issues and this matter is ready for disposition.
 Facts
On February 13, 2001, Compliance Officer (CO) Virgle Howell observed two Pro Set
ironworkers, Ron Junker and Mark Boss, working from a Grove aerial (snorkel) lift approximately 30
feet above the ground (Tr. 14, 21-22, 81). The snorkel lift’s basket was approximately six feet long
and three feet wide, with a control panel located on the long side that extended about 12 inches into the
basket (Tr. 43; Exh. R-2). The top rail of the basket was approximately waist high, the midrail knee
high (Tr. 83; Exh. R-1). Howell believed that the lift was about a foot to 18 inches from the side of the
building under construction, and that the top rail of the basket was level with an iron masonry ledge the
employees were welding (Tr. 26, 38, 80). Pro Set’s employees confirmed the basket’s size and
configuration, but stated that the long side of the basket was pushed up flush to the structure as they
worked (Tr. 81-82, 85; Exh. R-2).
CO Howell testified that, as he watched through binoculars, Junker stepped onto the midrail
and climbed out of the lift basket. Junker was not using his personal fall protection system (Tr. 24, 26,
29, 50, 53). Howell testified that after welding the ledge into place, Junker climbed back into the lift
basket, still without the benefit of fall protection (Tr. 25-26). The employee remaining in the basket,
Mark Boss, was tied off while he worked inside the basket (Tr. 71).
Junker, who identified himself as the crew foreman (Tr. 80, 93), testified that on the day of the
inspection he and Boss were installing angle iron onto the side wall of the structure under construction
(Tr. 82). Junker could not reach over the iron to weld it, so he climbed over the top rail of the basket
onto a stairway inside the structure and welded the angle from there before climbing back into the
bucket (Tr. 82, 85). Junker stated that, while working from inside the basket, both he and Boss wore
full body harnesses attached to the basket with a lanyard (Tr. 90-91; See also, testimony of Mark Boss,
Tr. 102). Junker admitted that he unhooked his lanyard and held it in his hand while climbing out of
the basket to work from the stairway (Tr. 93).
Mark Boss testified that the lift basket’s motor was off, and that the basket was pushed tight up
against the wall when Junker climbed out. Boss stated that there was no movement in the basket while
they worked, or when Junker climbed out (Tr. 87, 100, 106-07). According to Boss, Junker unhooked
his lanyard, exited the lift basket from the left rear side opposite the control panel, completed his
welding quickly, and then climbed back in (Tr. 100, 105, 109; Exh. R-2). Boss stated that Junker
stepped over the angle iron they were working on and onto the stairway, as the iron ledge had not yet
been welded firmly into place (Tr. 110-11).

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Alleged Violations
Serious citation 1, item 1 alleges:

29 CFR 1926.105(a): Safety nets were not provided when workplaces were more than 25 feet above the
ground or water surface, or other surface(s) where the use of ladders, scaffolds, catch platforms,
temporary floors, safety lines, or safety belts was impractical:

     (a)     850 West Ironwood Blvd., Coeur d’Alene, ID: On February 13, 2001 an iron
     worker/welder made a transition without the use of fall protection out of a Grove AMZ
     68, MB 306 aerial lift to work on the second story working surface. The height of the
     transition was approximately thirty-two feet above ground level exposing the worker to
     a thirty-two foot fall hazard.

     The cited standard states:

     Safety nets shall be provided when workplaces are more than 25 feet above the ground or water
     surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors,
     safety lines, or safety belts is impractical.

Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359,
1991).
It is now well settled that §1926.105(a) applies to falls to the exterior of a structure during steel
erection. L.R. Willson and Sons, Inc., 18 BNA OSHC 1698; 1999 CCH OSHD ¶31,796 (No. 94-1546,
1999). This judge finds it more likely than not that Ron Junker stepped on the midrail of the lift basket
to step over the top rail and the unsecured masonry ledge and onto the stairs inside the structure.
Junker admits he was not using fall protection at the time. Pro Set, however, argues that the standard
was not violated because the lift basket itself is a “catch platform.”
CO Howell testified, that although current OSHA standards do not contain a definition of the
term “catch platform,” earlier versions of the standard envision a catch platform as a stationary
platform, appended to the work structure, with a 42" guardrail, midrail, and toeboard (Tr. 38; Exh. C-
3). In her brief, the Secretary also argues that the lift basket could not serve as a catch platform
because it did not provide any meaningful fall protection for an employee climbing out of the basket.
At the hearing, James Hoctor, a safety consultant testifying for Pro Set, conceded that an employee

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falling from the railing of the basket would only be “caught” by the basket if he landed in an area
covering “a couple” of square feet (Tr. 145), and that there was no guarantee that a falling employee
would not miss the basket and fall to the ground (Tr. 146).
It is well settled that the interpretation of a standard by the promulgating agency is controlling
unless clearly erroneous or inconsistent with the regulation itself. Martin v. OSHRC (CF&I Steel
Corp.), 111 S.Ct. 1171, 1179 (1991); Udall v. Tallman, 380 U.S. 1, at 16, 87 S.Ct. 792, at 801 (1965).
Though a term may not be defined by the statute, the Secretary’s interpretation of that term during
litigation before the Commission is an exercise of her delegated lawmaking powers and so is entitled to
some weight on judicial review. CF& I Steel, supra. In this case, the Secretary’s interpretation of the
cited standard is well reasoned. The Secretary maintains that an employer cannot comply with
§1926.105(a) merely by providing one of the devices enumerated in the standard; the fall protection
provided must actually protect exposed employee against exterior fall hazards. Secretary’s counsel
cites State Sheet Metal Co., 16 BNA OSHC 1155, 1993-95 CCH OSHD ¶30,042 (No. 90-1620 & 90-
2894, 1993), and cases cited therein, which note that temporary flooring that does not actually provide
fall protection does not fulfill the requirements of §1926.105(a). Id., at 1158.
This judge agrees with the Secretary’s conclusion that because the snorkel lift basket does not
provide the fall protection envisioned by the cited standard, it is not the equivalent of a “catch
platform.” The Secretary has demonstrated that the cited standard was violated.
Finally, the Commission has held that the knowledge, actual or constructive, of an employer's
supervisory personnel will be imputed to the employer, unless the employer establishes substantial
grounds for not imputing that knowledge. Ormet Corp., 14 BNA OSHC 2134, 2138-39, 1991-93 CCH
OSHD ¶29,254, p. 39,203 (No. 85-531, 1991). Ron Junker was the acting foreman on the cited job,
and Pro Set does not argue that it could not, with the exercise of reasonable diligence, have known of
or prevented his violation of the cited standard.
The Secretary has established a violation of the cited standard.1

        1
            CO Howell testified that OSHA allows men to use aerial lifts to access structural steel construction, if

there is no other feasible means of reaching an elevation, citing an 8/4/97 letter of interpretation from the regional
administrator for OSHA region 10 (Tr. 75, 153-54). According to Howell, the employee must remain tied off to the
basket when making the transition to the structure, however, and reclip onto the structural steel before commencing
work in that location (Tr. 75). Nonetheless, Howell testified at the hearing that, because there was a stairway in
place Junker could have used to access the 30 foot elevation, climbing from the basket was inappropriate in this case
(Tr. 76). This judge notes that, while interviewing Junker the day of the inspection, Howell told him that he should
have remained tied off while he climbed out of the lift basket; at no point did he suggest that leaving the basket was,
in itself, unacceptable (Exh. R-1).

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Penalty
A proposed penalty of $1,500.00 was proposed for this item. CO Howell testified that a 30 foot
fall would likely result in broken bones, and/or debilitating injuries, up to and including death (Tr. 31).
Howell stated that the gravity of the violation was high. Howell believed that the probability of an
accident occurring was greater, in part, because he believed that Junker climbed out of the end of the
basket, and sat on the 6" masonry ledge for a short period of time (Tr. 27, 44). Howell also believed
that the extended basket was unstable, which could cause an employee climbing the rails to be ejected
from the basket (Tr. 40, 42). The gravity based penalty was reduced by 60% based on Pro Set’s small
size. An additional reduction was provided for history, as Pro Set had received no prior citations from
Federal OSHA (Tr. 47).
This judge finds that the gravity of this item was overstated. Junker was exposed to the cited
hazard for only seconds as he climbed over the lift basket’s railing. The videotape supports Pro Set’s
contention that the lift basket was pushed up tight to the structure, allowing both Junker and Boss to
work on the four inch angle iron from both the basket and the stairway inside the structure. This judge
credits Boss’ assertion that wedging the basket considerably reduced the instability of the basket.
Because the probability of an accident occurring was less than originally believed by Howell, a penalty
of $700.00 is deemed appropriate and will be assessed.
Alleged Violations of §1926.453 et seq.

The alleged violations below have been grouped because they involve similar or related hazards that
may increase the potential for injury resulting from an accident.
Serious citation 1, item 2a alleges:
29 CFR 1926.453(b)(2)(iv): Employees were not standing firmly on the floor of the basket, and were
sitting or climbing on the edge of the basket:

   (a)     850 West Ironwood Blvd., Coeur d’Alene, ID: On February 13, 2001 an iron
   worker/welder made a transition without the use of fall protection out of a Grove AMZ
   68, MB 306 aerial lift to work on the second story working surface. The worker climbed
   out of the aerial lift and onto the second story working surface exposing him to a
   thirty-two foot fall hazard to the ground below.

   Serious citation 1, item 2b alleges:

29 CFR 1926.453(b)(2)(v): A body belt was not be (sic) worn and a lanyard was not attached to the
boom or basket when working from an aerial lift:

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(a) 850 West Ironwood Blvd., Coeur d’Alene, ID: On February 13, 2001 an iron
worker/welder made a transition without the use of fall protection out of a Grove AMZ
68, MB 306 aerial lift to work on the second story working surface. The worker climbed
out of the aerial lift and onto the second story working surface exposing him to a
thirty-two foot fall hazard to the ground below.

    The cited standards require:

    (iv) Employees shall always stand firmly on the floor of the basket, and shall not sit or
    climb on the edge of the basket. . . for a work position.

    (v) A body belt shall be worn and a lanyard attached to the boom or basket when
    working from an aerial lift.

Discussion
Items 2a and 2b are based on the identical conduct discussed at item 1.
As a threshold matter, this judge notes that §1926.453 et seq. does not appear to apply to the
cited circumstances. The evidence establishes that Junker was not climbing to the edge of the basket to
use it as a work position, nor was he working from the basket when he removed his lanyard to climb
out.
In any event, it is well established that the Commission has wide discretion in the assessment of
penalties for distinct but potentially overlapping violations; similar or duplicative items may be
grouped for purposes of assessing an appropriate penalty. See, Pentecost Contracting Corp., 21 OSHC
(BNA) 2133; 1997 OSHD (CCH) ¶31,382 (No. 92-3788 & 92-3790, 1997); H.H. Hall Constr. Co.
(Hall), 10 BNA OSHC 1042, 1981 CCH OSHD ¶25,712, (No. 76-4765, 1981). The violations cited at
2a and 2b are clearly duplicative of item 1, in that all three violations require the same abatement
conduct. J. A. Jones Construction Co., 16 BNA OSHC 1497, 1991-93 CCH OSHD ¶29,964 (No. 87-
2059, 1993). Ron Junker had only to remain tied off until reaching the structure’s staircase to avoid
citation for all three items.
The gravity of the underlying violation here is not high enough to justify affirming duplicative
citations and imposing additional penalties for the violative conduct cited. Items 2a and 2b are
vacated.

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ORDER

1. Citation 1, item 1, alleging violation of 29 CFR §1926.105(a) is AFFIRMED and a penalty of
   $700.00 is ASSESSED.
2. Citation 1, item 2a, alleging violation of 29 CFR §1926.453(b)(2)(iv) is VACATED.
3. Citation 1, item 2b, alleging violation of 29 CFR §1926.453(b)(2)(v) is VACATED.

                                                   /S/
                                              Benjamin R. Loye
                                              Judge, OSHRC
   

Dated: September 11, 2001

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