Kenny Industrial Services, LLC, d/b/a Kenny Manta Industrial Services

Plain-English summary

A Kenny Industrial Services employee applied fireproofing from a mobile scaffold near an unprotected fourth-floor edge. Although the scaffold platform itself was under 10 feet high, the worker could have fallen 20 to 24 feet to the second floor, and the scaffold's low toprail did not provide compliant protection. The judge affirmed a serious scaffold fall-protection violation and assessed $1,000. She vacated a separate wheel-lock item because the evidence indicated the scaffold was being pushed continuously during spraying rather than used in a stationary manner.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(g)(1) and 1926.452(w)(2)
• Outcome: Serious scaffold fall-protection item affirmed with a $1,000 penalty; wheel-lock item vacated.
• Key point: The relevant fall distance is the lower level an employee can reach, not merely the height of the scaffold platform.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

                                                    :

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC DOCKET NO. 01-1626
:
KENNY INDUSTRIAL SERVICES, LLC, :
d/b/a KENNY MANTA INDUSTRIAL SERVICES :
Respondent. :
:

Appearances: Linda M. Hastings, Esq. Peter J. Engelbert
U.S. Department of Labor Rick Napier
Office of the Solicitor Kenny Industrial Services
Cleveland, Ohio Hammond, Indiana
For Complainant. For Respondent.

BEFORE: COVETTE ROONEY
Administrative Law Judge

                               DECISION AND ORDER
   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). Respondent, Kenny Industrial Services, LLC (“Kenny”), at all
times relevant to this case maintained a work site in Akron, Ohio, where it was engaged in
applying fireproofing material on a building under construction.1 Kenny admits that it is an
employer engaged in a business affecting commerce within the meaning of section 3(5) of the
Act and that it is subject to the requirements of the Act.
On August 1, 2001, the Occupational Safety and Health Administration (“OSHA”)
conducted an inspection of the site and issued to Kenny one two-item citation alleging serious
violations with a proposed total penalty of $3,600.00. Kenny filed a timely notice of contest, and
a hearing was held

1 OSHA originally issued citations to Respondent under the name “Kenny Manta
Industrials.” The Secretary filed a motion to amend the case caption to “Kenny Industrial
Services, LLC, d/b/a Kenny Manta Industrial Services” which I granted in an order dated August
7, 2002.
May 14-15, 2002, in Cleveland, Ohio. The parties have submitted post-hearing briefs and reply
briefs, and this matter is ready for disposition.
Factual Background
On August 1, 2001, OSHA conducted a planned inspection of a construction site in
Akron, Ohio. In addition to the general contractor, several subcontractors were working at the
site. OSHA’s compliance officer (“CO”) was going to the fifth floor to continue his inspection of
another employer when he noticed a Kenny employee working on a mobile scaffold on the
fourth floor of the building. On his way down from the fifth floor, the CO again observed a
Kenny employee working on a mobile scaffold on the same level near the edge of the concrete
floor. The edge of the floor was unprotected except for two rails running parallel to the floor.
When the CO saw him, Dan Mullaly, the Kenny employee, was standing on the mobile scaffold
and using a high-pressure spray gun to apply fireproofing material to the ceiling. Demetrius
Coleman, another Kenny employee, had the job of pushing the mobile scaffold to the desired
area. (Tr. 14-16, 25-26, 60, 85.)
Citation 1, Item 1
Item 1 alleges a serious violation of 29 C.F.R. § 1926.451(g)(1), which states that “[e]ach
employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be protected from
falling to that lower level. Paragraphs (g)(1)(i) through (vii) of this section establish the types of
fall protection to be provided to the employees on each type of scaffold.” Paragraphs (g)(1)(i)-
(vi) provide for various types of scaffolds, but do not refer specifically to mobile scaffolds.
Paragraph (g)(1)(vii), however, states that “[f]or all scaffolds not otherwise specified in
paragraphs (g)(1)(i) through (g)(1)(vi) of this section, each employee shall be protected by the
use of personal fall arrest systems or guardrail systems meeting the requirements of paragraph
(g)(4) of this section.”
I conclude that the Secretary has established her burden of proving the alleged violation
by a preponderance of evidence.2 It is undisputed that the platform of the mobile scaffold was
not more than 10 feet tall and that the toprail on the scaffold was approximately knee-high to
thigh-high.3 (Tr. 20-21, 162; C-1-2.) The issue, however, is not the height of the scaffold

2 To establish a violation of a standard, the Secretary must show (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).
3 Although the CO did not take measurements, it is undisputed that the top rail on the
scaffold did not meet 29 C.F.R. § 1926.451(g)(4)(ii), which provides that:
platform, but whether the employee on the scaffold was more than 10 feet above a lower level.
29 C.F.R. § 1926.450 defines “lower levels” as “areas below the level where the employee is
located and to which an employee can fall. Such areas include, but are not limited to, ground
levels, floors, roofs, ramps, runways, excavations, pits, tanks, materials, water, and equipment.”
Therefore, an employer must provide fall protection when an employee can fall more than 10
feet from the scaffold.
The record demonstrates that Mr. Mullaly was working on the mobile scaffold near the
edge of the fourth floor, which was protected only by two rails installed parallel to the floor. (Tr.
21-22, 61; C-1-3.) The record also demonstrates that a fall from the edge of the fourth floor
would have been to the second floor, which was 20 to 24 feet below. (Tr. 22-23). Because of the
height of the scaffold’s toprail, the proximity of the scaffold to the edge of the floor, and the fall
distance from the fourth floor to the second floor, I find that Mr. Mullaly was working more than
10 feet above a lower level without the required fall protection. Kenny thus violated the terms of
the standard.
I further find that Mr. Mullaly was exposed to the cited condition and that Kenny had
knowledge of the violation. The undisputed testimony of the CO and the photographs he took
clearly establish Mr. Mullaly’s exposure to the hazard. (Tr. 30, 34; C-1-2.) The CO also testified
that the foreman on the project admitted that he was aware of the condition.4 (Tr. 102.) As
further evidence that Respondent was aware of the condition, James Blanchard, Kenny’s
superintendent of fireproofing, testified that he set the job up and was familiar with how the
employees were instructed to perform the job. (Tr. 156-58.) As a competent person in
scaffolding and fall protection, Mr. Blanchard should have known that an employee in the

     The top edge height of toprails or equivalent member on supported scaffolds
     manufactured or placed in service after January 1, 2000 shall be installed between
     38 inches (0.97 m) and 45 inches (1.2 m) above the platform surface. The top
     edge height on supported scaffolds manufactured and placed in service before
     January 1, 2000, and on all suspended scaffolds where both a guardrail and a
     personal fall arrest system are required shall be between 36 inches (0.9 m) and 45
     inches (1.2 m). When conditions warrant, the height of the top edge may exceed
     the 45-inch height, provided the guardrail system meets all other criteria of
     paragraph (g)(4).

While the record does not establish the date the scaffold was manufactured or placed in service,
it is clear that the toprail was lower than 36 inches. (Tr. 67; C-1-2.)
4 Even if Kenny had not had actual knowledge, however, the violation was in plain view
and could have been discovered with the exercise of reasonable diligence. (Tr. 30, 34.)
circumstances of Mr. Mullaly was exposed to a 20 to 24-foot fall. Based on the record, the
Secretary has met her burden of proving the alleged violation.5
I find that this violation was properly classified as serious because there was a substantial
probability that the cited condition, a fall of 20 to 24 feet, could have resulted in death or serious
physical harm. (Tr. 30-31.) The Commission, pursuant to section 17(j) of the Act, 29 U.S.C. §
666(j), must give due consideration to four factors in assessing penalties: (1) the size of the
employer’s business, (2) the gravity of the violation, (3) the employer’s good faith, and (4) the
employer’s prior history of OSHA violations. See also, J. A. Jones Constr. Co., 15 BNA OSHC
2201, 2213-14 (No. 87-2059, 1993). The CO testified that Kenny was given credit for history.
(Tr. 32.) I agree with the Secretary that no adjustments are warranted for size or good faith. (Tr.
31-32.) In evaluating the gravity of the violation, consideration is given to factors such as the
number of employees exposed, duration of exposure, likelihood of injury, and precautions taken
against injury. J.A. Jones Constr., 15 BNA OSHC at 2214. In this case, only one employee was
exposed to a fall hazard of 20 to 24 feet, and some precautions, though inadequate, were taken
against injury, such as the toprail on the scaffold and the guard rail on the floor. (Tr. 20-23; C-1-
3.) While I agree that there would be serious consequences if an accident should occur, the
evidence does not support a finding that there was a high probability of an accident occurring.
Therefore, this item is affirmed as a serious violation, and a penalty of $1,000.00 is assessed.
Citation 1, Item 2
Item 2 alleges a serious violation of 29 C.F.R. § 1926.452(w)(2), which states that
“[s]caffold casters and wheels shall be locked with positive wheel and/or wheel and swivel locks,
or equivalent means, to prevent movement of the scaffold while the scaffold is used in a
stationary manner.” While the CO testified that he observed the scaffold being used in a
stationary manner, he did not specifically testify as to what the employee was doing on the
scaffold and how long he observed the employee on the scaffold. (Tr. 28.) It is unclear from the
CO’s testimony whether he actually saw the employee using the scaffold in a stationary manner
while applying fireproofing material to the ceiling. The CO did admit, however, that the

5 In its post-hearing brief, Respondent appears to argue in essence that any other
configuration for fall protection was not feasible. To demonstrate the affirmative defense of
infeasibility of compliance, the employer must prove both that (1) literal compliance with the
requirements of the standard was infeasible under the circumstances, and that (2) either an
alternative method of protection was used or no alternative means of protection was feasible.
State Sheet Metal Co., 16 BNA OSHC 1155, 1160 (Nos. 90-1620 & 90-2894, 1993); Seibel
Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1226-28 (No. 88-821, 1991). Respondent
neither asserted this defense in its Answer nor did Respondent identify this issue in its Pre-
Hearing Statement. Even if Respondent had properly raised this defense, I would find that
Respondent failed to present sufficient evidence to carry its burden of proving infeasibility.
employee was not on the scaffold long before he informed him of the hazard. (Tr. 89.) It is
reasonable to infer from this testimony that the CO did not observe the employee on the scaffold
for more than a few minutes, which would not provide sufficient opportunity to determine if the
employee was in fact using the scaffold in a stationary manner. Indeed, a more reasonable
inference, in view of the evidence, is that the scaffold was not used in a stationary manner. In
this regard, several witnesses testified that in order to apply the fireproofing material to the
ceiling, one employee pushed the scaffold while another employee standing on the scaffold
sprayed the material from a high-pressure spray gun or hose. (Tr. 139-40, 144-46, 172, 199-203,
213-14.) According to these witnesses, the fireproofing material is pumped through a hose and
comes out of a nozzle at a very high volume, which would make the operation of applying the
material uniformly along the ceiling difficult if the scaffold was indeed stationary as alleged. Id.
Therefore, I find that it is unlikely that the scaffold was being used in a stationary manner as
intended by the standard. Based on the foregoing, I conclude that the Secretary has failed to
prove the alleged violation by a preponderance of evidence. This item is accordingly vacated.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes my findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

                                      ORDER
 Based upon the foregoing, it is hereby ORDERED that:
 1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.451(g)(1), is

AFFIRMED, and a penalty of $1,000.00 is assessed.
2. Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.452(w)(2), is
VACATED.

                                                                 /s/

                                                     Covette Rooney
                                                     Judge, OSHRC

Dated: August 19, 2002
Washington, D.C.