Associated Construction

Plain-English summary

The OSHRC index identifies this as a Commission decision dated December 14, 2001, but the official PDF currently serves an Administrative Law Judge decision dated January 31, 2002. In the served decision, two Associated Construction employees erected prefabricated walls within inches of an unguarded edge about 35 feet above the ground. The judge rejected the company's residential-construction argument because the building was primarily steel and concrete and because guardrails had been used while an identical structure was erected elsewhere on the same level. Associated also had no compliant alternative fall-protection plan or monitor. The serious violation was affirmed, and a $375 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: In the decision served by the official file, the serious fall-protection item was affirmed and $375 assessed.
• Key point: The official file linked to this Commission row currently contains a later ALJ decision rather than Commission decision text.

Full text (OSHRC public release)

                                              United States of America
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                        1244 North Speer Boulevard, Room 250
                                             Denver, Colorado 80204-3582

SECRETARY OF LABOR,
Complainant,

                           v.                               OSHRC DOCKET NO. 01-1076

ASSOCIATED CONSTRUCTION,
Respondent.

APPEARANCES:

      For the Complainant:
               Helen J. Schuitmaker, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois

      For the Respondent:
               Ray Iverson, pro se, Associated Construction Co., DeForest, Wisconsin

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, Associated Construction Co. (Associated), at all times relevant to this action
maintained a place of business at 715 Fell Street, Madison, Wisconsin, where it was engaged in
construction. Because construction is an activity which as a whole affects interstate commerce, see,
Clarence M. Jones d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No.
77-3676, 1983), Respondent is an employer engaged in a business affecting commerce and is subject to
the requirements of the Act.
On May 15, 2001 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Associated’s Fell Street work site. As a result of that inspection, Associated was issued a
citation alleging violation of §1926.501(b)(1) of the Act together with a proposed penalty. By filing a
timely notice of contest Associated brought this proceeding before the Occupational Safety and Health
Review Commission (Commission).
On October 2, 2001, an E-Z hearing was held in Madison, Wisconsin. No briefs are required in
E-Z proceedings, and this matter is ready for disposition.
Alleged Violations
29 CFR 1926.501(b)(1): Each employee on a walking/working surface (horizontal and vertical surface)
with an unprotected side or edge which was 6 feet or more above a lower level was not protected from
falling by the use of guardrail systems, safety net systems, or personal fall arrest systems:

    Employees erecting exterior walls did not have fall protection in place to prevent them
    from falling to the exterior of the building.

    The cited standard provides:
    (b)(1) Unprotected sides and edges. Each employee on a walking/working surface
    (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m)
    or more above a lower level shall be protected from falling by the use of guardrail
    systems, safety net systems, or personal fall arrest systems.

Facts
OSHA Compliance Officer (CO) Chad Greenwood testified that on May 15, 2001 he observed
two Associated employees, including the foreman, Michael McFadden, working on the top floor of a
four story multi-use building at 715 Fell Street, in Madison, Wisconsin (Tr. 9-10). Greenwood testified
that the two employees spent approximately 15 to 20 minutes tipping prefabricated walls into place and
fastening them to the deck (Tr. 12). The employees worked within a few inches of the outside edge of
the building; CO Greenwood testified that he could see McFadden’s toes from his position on the
ground (Tr. 12, 16-17). Although stanchions and wire rope guardrails was in place around the edge of
the top floor in other areas, there was no fall protection in the area where Associated’s employees were
working (Tr. 12).
Michael McFadden admitted that he and another Associated employee were working near the
unguarded edge of third floor of the Fell Street building for approximately 10 to 15 minutes (Tr. 49).
The two were erecting the prefabbed wooden walls of an octagonal “cabana” and fastening them to the
concrete deck (Tr. 48). They had previously erected an identical cabana on the other end of the
building, while the stanchions and safety cables, which had been installed by the general contractor,
were still in place (Tr. 48, 58). According to McFadden, before Associated began to erect the second
cabana, the general removed the angle iron that had been supporting the safety cable in that area (Tr.
48, 54).
Discussion
Associated does not dispute the facts as set forth above. Associated argues, however, that it
should not have been cited because the cited work was “residential construction.” Under
§1926.501(b)(13), employers engaged in residential construction may “develop and implement a fall

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protection plan which meets the requirements of paragraph (k) of §1926.502” in lieu of using standard
fall protection measures if the employer can demonstrate that it is infeasible or creates a greater hazard
to use guardrails, safety nets, or personal fall protection.
OSHA directive STD 3-0.1A defines residential construction as construction of a structure, or
distinct portion of a structure, which utilizes materials, methods and procedures that are essentially the
same as those used in building a typical single family home, i.e. wood framing (not steel or concrete),
wooden floor joists and roof, and which is assembled with traditional wood frame construction
techniques.
The Fell Street building had a concrete foundation; the three upper floors were constructed of
steel posts, beams, columns, and bar joists (Tr. 10, 29-30). The third level deck was concrete;
Associated employees were attaching a wood frame cabana to that deck (Tr. 47-48). As a threshold
matter, based on the evidence in the record, this judge cannot find that the wooden cabana is
sufficiently distinct from the rest of the steel and concrete structure so as to be treated separately as
residential construction.
Moreover, even assuming, arguendo, that the construction of the third floor cabanas on the Fell
Street site was residential construction as defined by OSHA, this judge cannot find that Associated
proved that traditional fall protection techniques, i.e., guardrails, were infeasible on this site.
Associated admits that it erected an identical cabana on the other side of the third floor while guardrails
were in place. Under the described circumstances, Associated cannot argue that guardrails were
infeasible.1
Because traditional fall protection was feasible on the site, it was not necessary, or permissible
for Associated to develop or utilize an alternative fall protection plan. In any event, it is clear from the
evidence that Associated did not develop an alternative fall protection plan intended to comply with
§1926.502(k). At minimum, subparagraph (k) requires the designation of a competent person to
monitor the location of employees working in demarcated controlled access zones at the building’s
edge. Foreman McFadden admitted that there was no monitor on the Fell Street site. Associated had

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          Michael McFadden’s opinion that the general contractor’s guardrails would not have stopped a

falling employee (Tr. 59) is irrelevant. Standard guardrails as described at §1926.502(b) are mandated by the
standard. An employer may not use the adjudicatory process to challenge the wisdom of required safety measure.
See, Austin Engg. Co., 12 BNA OSHC 1187, 1188, 1984-85 CCH OSHD ¶27,189, p. 35,099 (No. 81-168, 1985). If
Howe believed the general’s guardrails were inadequate, and once it realized the general had removed required
guardrails, Howe had a duty to make reasonable efforts to protect its employees from the resulting hazardous condi­
tion. Lee Roy Westbrook Construction Company, Inc., 13 BNA OSHC 2104, 1989 CCH OSHD ¶28,465 (No. 85-
601, 1989). The Commission has held that a subcontractor must, at least, notify the responsible contractor. McLean-
Behm Steel Erectors, Inc., 6 BNA OSHC 1712, 1978 OSHD ¶22,812 (1978).

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only two employees on the site; both of them were fully engaged in raising the prefabbed walls at the
edge of the building.
The Secretary has made out its prima facie case. Associated has not made out a cognizable
defense. The cited standard will be affirmed.
Penalty
A penalty of $375.00 was proposed. CO Greenwood stated that the cited violation was serious,
in that a 35 foot fall from the third floor could result in death or permanent disability (Tr. 13, 28).
Greenwood took into account the low probability of an accident occurring; two employees were
exposed to a one time hazard for approximately 15 minutes. In computing a proposed penalty,
Greenwood figured in a 60% reduction based on Associated’s small size. An additional 60% reduction
was provided because of Associated’s good safety record and safety program (Tr. 24).
Taking the relevant factors into account, the proposed penalty is deemed appropriate and will
be assessed.

                                              ORDER

1. Citation 1, item 1, alleging violation of §1926.501(b)(1) is AFFIRMED, and the proposed
   penalty of $375.00 will be ASSESSED.

                                                           /s/
   
                                                     Benjamin R. Loye
                                                     Judge, OSHRC
   

Dated: January 31, 2002

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