SALCO Construction, Inc.

Plain-English summary

A SALCO employee bolted purlins while sitting on a steel beam about 18 feet above a concrete floor without fall protection. The judge found that he was not a connector because he was not working with hoisting equipment, so the 15-foot steel-erection fall rule applied. Two other employees worked from a platform supported by telehandler forks that was not secured against sliding off, supporting a repeat scaffold violation. A separate scaffold fall-protection item was vacated because OSHA did not prove that the platform's open side was more than 14 inches from the building or otherwise exposed the workers to a fall. The affirmed serious and repeat items carried total penalties of $3,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.760(a)(1), 1926.451(c)(2)(v), 1926.451(g)(1)
• Outcome: The steel fall-protection item and repeat platform-security item were affirmed with total penalties of $3,000, while the scaffold fall item was vacated.
• Key point: The connector exception did not apply after hoisting was complete, and a work platform on forklift-style forks had to be secured to the forks.

Full text (OSHRC public release)

                                           United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant
v. OSHRC Docket No. 05-1145
SALCO Construction, Inc.,
Respondent.

Appearances:

      Lindsay Wo fford, Esq., U. S. Department of Labor, Office of the Solicitor, Dallas, Texas
              For Com plainant

      Robert N. Aguiluz, CSP, The Barnes Law Firm, P.C., Dallas, Texas
              For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER

      SALCO Construction Inc. (SALCO) was erecting the steel for a new Verizon Wireless retail

store in Baton Rouge, Louisiana, when the project was inspected by the Occupational Safety and
Health Administration (OSHA) on April 29, 2005. As a result of OSHA’s inspection, SALCO
received serious and repeat citations on June 14, 2005. SALCO timely contested the citations.
The serious citation alleges SALCO violated 29 C.F.R. § 1926.760(a)(1) for failing to ensure
an employee exposed to a fall hazard of more than 15 feet was protected by fall protection. The
serious citation proposes a penalty of $3,000.00.
The repeat citation alleges SALCO violated 29 C.F.R. § 1926.451(c)(2)(v), (Item 1) for
failing to secure a platform occupied by two employees to the forks on a Gradall Telehandler; and
29 C.F.R. § 1926.451(g)(1) (Item 2) for failing to protect two employees on the platform from a fall
hazard of more than 10 feet. Each alleged repeat violation proposes a penalty of $1,200.00.
The hearing was held in Baton Rouge, Louisiana, on January 12, 2006. Jurisdiction and
coverage are stipulated (Tr. 6). The parties filed post hearing briefs.
 SALCO denies the alleged violations. SALCO asserts the employee on the steel beam was
a connector and fall protection was not required. With regard to the two employees on the platform
supported by the forks on the Gradall Telehandler, SALCO argues the scaffold standards in
§ 1926.451 do not apply and are preempted by the steel erection standards at § 1926.750. Also,
SALCO claims the Gradall Telehandler and the platform are not covered by the cited standards.
For the reasons discussed, the alleged violations of § 1926.760(a)(1) and § 1926.451(c)(2)(v)
are affirmed. The alleged violation of § 1926.451(g)(1) is vacated.
Background
SALCO, a construction company, is in the business of steel erection. It employs 50
employees (Tr. 62, 114). SALCO contracted to erect the steel for a new single story Verizon
Wireless store in Baton Rouge, Louisiana (Exh. C-8).
On April 29, 2005, four SALCO employees were on site; leadman Raub, equipment operator
Merrill Myers, and two employees, Roche and Bodreaux (Tr. 113-114). Merrill Myers operated the
Gradall Telehandler by JLG Industries (Exh. R-1). The forks attached to the Gradall Telehandler
were used to support an elevated platform for employees to work. The platform had guardrails on
three sides. The side facing the eaves of the building under construction was open without guardrails
(Exhs. C-2, C-3; Tr. 25-26, 28). To hold the platform, the forks slid into two pieces of channel iron
underneath the platform (Exh. C-4).
OSHA compliance officer Raymond Loupe, after finishing lunch across the street from the
project, observed two employees on an elevated platform and one employee on a steel beam.
Leadman Raub and employee Roche were standing on the platform installing flashing to the eaves
of the building (Tr. 30, 114). According to the building’s blueprints, the eaves was at a height of
15 feet, ¾ inches (Tr. 36, 94). Only Roche was wearing a safety harness but it was not attached
(Tr. 27, 114). CO Loupe estimated the platform was approximately 13 feet above the ground
(Tr. 58, 120). Also, CO Loupe testified he saw the wheels on the Gradall move with the Raub and
Roche still on the elevated platform (Tr. 24-25, 26-27, 29-30, 60).

                                            -2­

In addition to the employees on the platform, CO Loupe observed employee Bodreaux
standing and sitting on a steel beam in the interior of the building while bolting in purlins1 (Exh. C-1;
Tr. 30, 35). Bodreaux was not utilizing any fall protection (Tr. 35). From the eaves which was at
a height of 15 feet, ¾ inches, according to the blueprints, the steel beams went to a height of 22 feet
(Tr. 36). CO Loupe estimated Bodreaux was approximately 18 feet above the concrete floor
(Tr. 41).
Based on CO Loupe’s inspection and observations, the serious and repeat citations were
issued to SALCO.
Discussion
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).

    For the most part, this case does not involve factual disputes as to CO Loupe’s observations.

Also, SALCO does not dispute its knowledge of the conditions and the employees’ exposure to the
cited conditions, if violations are found.
SALCO’s primary dispute involves the application of the standards cited and the repeat
classification. Also, SALCO challenges Loupe’s estimate of the height of the platform and whether
the platform was moved with employees on it.
Serious Citation No. 1 - Alleged Violation of 29 C.F.R. § 1926.760(a)(1)

    The citation alleges SALCO failed to ensure an employee on a steel beam exposed to a fall

hazard of more than 15 feet was protected by fall protection. Section 1926.760(a)(1) provides:

1
A “purlin” is a “Z” or “C” shaped mem ber formed from sheet steel spanning between primary framing and
supp orting ro of ma terial. See 29 C .F.R. § 192 6.75 1, Definitions.

                                                  -3­

Except as provided by paragraph (a)(3) of this section, each employee
engaged in a steel erection activity who is on a walking/working
surface with an unprotected side or edge, more than 15 feet (4.6m)
above a lower level shall be protected from fall hazards by guardrails
systems, safety net systems, personal fall arrest systems, positioning
device systems or fall restraint systems.

    It is undisputed the employee on the steel beam was performing steel erection. Bodreaux was

bolting purlins to the steel beam (Exh. C-1; Tr. 30, 35). Bolting in purlins is a steel erection activity.
29 CFR § 1926.751(b)(1). There is no dispute the steel erection standards at Subpart R, 29 C.F.R.
§ 1926.750, apply.
There is also no dispute Bodreaux was not utilizing any fall protection (Exh. C-1; Tr. 35).
According to the blueprints of the building, the height of the eaves was 15 feet, ¾ inches. The steel
beam on which Bodreaux was higher (Tr. 36). Based on his observation, CO Loupe estimated
Bodreaux was approximately 18 feet above the concrete floor (Tr. 41).
SALCO’s knowledge of Bodreaux’s lack of fall protection is established through Raub, the
leadman. As leadman, Raub was given supervisory responsibility over the worksite. Bodreaux was
in plain view on the steel beam and in relative proximity to Raub who was on the platform at the
eaves. Hamilton Fixture, 16 BNA OSHC 1073, 1089, 1097 (No. 88-1720, 1993) (the supervisor
could have seen what the compliance officer did see). An employer is chargeable with knowledge
of conditions which are plainly visible to its supervisory personnel. A.L. Baumgartner Construction
Inc., 16 BNA OSHC 1995, 1998 (No 92-1022, 1994). Raub’s knowledge is imputed to SALCO.
Under § 1926.760(a)(1), two exceptions to the 15-feet fall protection requirement are; (1) the
employee is a connector, or (2) the employee is working in a controlled decking zone (CDZ).
29 C.F.R. § 1926.760(a)(3). There is no dispute the area where Bodreaux was working was not a
CDZ. The Connector Exception
SALCO argues Bodreaux in bolting in the purlins was working as a connector. SALCO
contends the connector exception applies and pursuant to § 1926.760(a)(3), Bodreaux was not
required to tie off below 30 feet. According to SALCO, the purlins had been individually positioned
with a forklift. SALCO agrees it had completed the initial connections and Bodreaux was in the
process of making subsequent connections (Resp. Brief, p. 17).

                                               -4­

A “connector” is defined as “an employee who, working with hoisting equipment, is placing
and connecting structural members and/or components.” 29 C.F.R. § 1926.751. Section
1926.760(b)(3) requires protecting connectors from fall hazards in the same manner as
§1926.760(a)(1) only when the connector is working above 30 feet or two stories above a lower
level, whichever is less.
SALCO argues connecting for the purpose of applying the exception does not just include
the time when the employee is actually making the connection or when the hoisting equipment is in
place. It also includes moving on the steel to and from initial and subsequent connection points.
SALCO’s argument is rejected. The definition of a connector is specific. By definition, the
connecting work must be done in conjunction with hoisting equipment. There is no evidence in this
case Bodreaux was working with any hoisting equipment.
As set forth in the Federal Register, 66 Fed. Reg. 5196, 5203 (January 18, 2001), the drafters
state:
The definition is very specific; connecting is distinguished from other
steel erection activities by the elements in the definition. For
example, spreading and securing bar joists by hand would not be
considered connecting, since that work is not done “with hoisting
equipment.” Therefore, an employee is a “connector” only when
working with “hoisting equipment.” This includes placing
components as they are received from hoisting equipment, and then
connecting those components while hoisting equipment is overhead.

     OSHA’s CPL 2-1.34, “Inspection Policy and Procedures for OSHA’s Steel Erection

Standards for Construction,” and an OSHA Interpretation letter dated April 5, 2005, “Evaluation
if moving point-to-point on concrete wall to make initial connections of structural steel is
“connecting” work; landing loads on systems-engineered metal building,” are consistent in that the
work is done in conjunction with hoisting equipment (Exh. C-14, Interpretation letter attached to
Secretary’s Brief). In the question and answer section of OSHA’s CPL 2-1.34 p. 4-11 (Exh. C-14),
OSHA states:

                                              -5­

Question 34: If workers are on a one story building that is 20' tall(top
of steel) and the joists require horizontal bridging, is fall protection
required for employees installing this bridging?

              Answer: Normally, yes. Fall protection by use of a guardrail system,
              safety net system, personal fall arrest system, positioning device
              system or fall restraint system is required by § 1926.760(a)(1) to be
              provided at heights more than 15 feet above a lower level. The
              requirements in § 1926.760(a)(1) apply irrespective of whether the
              building is single or multi-story. The connector exception will not
              normally apply in situations like this. Horizontal bridging is not
              erection bridging. These workers typically will not be working with
              hoisting equipment when installing horizontal bridging. So
              employees installing horizontal bridging at a height of 20 feet, on a
              single story building, working without hoisting equipment, would be
              required to have fall protection in accordance with § 1926.760(a)(1).

     In this case, the purlins had been laid out prior to the OSHA inspection and Bodreaux was

simply placing additional bolts (Resp. Pre-Hearing, p. 5). Bodreaux at the time of the citation was
not acting as a connector as defined by OSHA and should have been utilizing fall protection since
he was at a height in excess of 15 feet.2
SALCO’s Infeasibility Defense
Although SALCO asserted infeasibility as an affirmative defense in its answer and prehearing
exchange, SALCO did not address the defense in its post hearing brief. The alleged defense is
therefore deemed abandoned because of SALCO’s failure to brief the issue. See Georgia-Pacific
Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).

2
Even if Bodreaux was acting as a connector, §1926.760 (b)(3) requires connectors to wear fall arrest or restraint
equipment at heights of 15 - 30 feet and be able to tie off or be provided another means of fall protection. Based on
the record, there is no showing Bodreaux was utilizing any fall protection equipment or had been provided another
means of fall protection.

                                                     -6­

Even if not abandoned, the record fails to support an infeasibility defense.3 CO Loupe
testified fall protection could have been provided from equipment currently available on the market
(Tr. 37). He specifically identified the use of a beamer which is spring-loaded device that slides
along the steel beam (Tr. 37). The beamer fits around the beam and has a D-ring where a lanyard
attaches. Loupe also discussed the use of a wire sling, mesh sling, ladder, scissor lift or manlift
(Tr. 39-40). The photograph shows Bodreaux stationary and sitting on the steel beam (Exh. C-1).
SALCO failed to offer evidence showing Bodreaux could not have utilized fall protection
when bolting in the purlins. There was no showing SALCO considered different fall arrest systems
available on the market or made a determination prior to initiating work that such systems were
infeasible. SALCO’s reliance on an OSHA safety and health bulletin (SHIB 09-22-03) entitled
“Compatibility of Personal Fall Protection Systems Components” is misplaced (Exh. R-2). The
SHIB merely warns employers to check the compatibility of the components of fall arrest systems
before the arrest system is utilized. The SHIB does not instruct employers not to require fall arrest
systems. Also, SALCO did not show how the conditions described in the bulletin were analogous
to the Verizon store worksite or how it was impossible for SALCO to avoid an accident similar to
the one discussed in the bulletin.
It is noted SALCO has only objected to fall arrest systems. The fall protection standard,
however, allows the employer to utilize a guardrail system, safety net system, positioning device
system or fall restraint system which were not discussed by SALCO.
The Serious Classification
The violation of § 1926.760(a)(1) is classified as serious. A violation is serious under
section 17(k) of the Occupational Safety and Health Act (Act) (29 U.S.C. § 666(k)), if it creates a
substantial probability of death or serious physical harm and the employer knew or should have
known of the violative condition. The issue is not whether an accident is likely to occur; but rather,

3
As an affirmative defense, SALCO has the burden of proof. To establish infeasibility, an employer must show: (1)
the means of compliance prescribed by the standard would have been infeasible under the circumstances in that
either (a) its implementation would have been technologically or economically infeasible or (b) necessary work
operations would have been technologically or economically infeasible after its implementation; and (2) either (a) an
alterna tive me thod of pro tection was use d or (b) the re was no fea sible alte rnative mea ns of p rotec tion. Beaver Plant
Operations, Inc., 18 BN A OS HC 1 972, 197 7 (No. 97-01 52, 1999 ).

                                                         -7­

whether the result would likely be death or serious harm if an accident should occur. Whiting-Turner
Contracting Co., 13 BNA OSHC 2155, 2157 (No. 87-1238, 1989).
It is undisputed Raub was the designated leadman on the project. Raub was present on the
project and was aware Bodreaux was on the steel beam without utilizing fall protection. As a
supervisor, Raub’s knowledge is imputed to SALCO. Todd Shipyards Corp., 11 BNA OSHC 2177,
2179 (No. 77-1598, 1984).
The record is also undisputed that Bodreaux was subject to a fall hazard of approximately
18 feet to the cement floor below. If such a fall occurred, it is clear the employee would have been
seriously injured.
SALCO’s serious violation of § 1926.760(a)(1) is established.
Repeat Citation No. 24
Application of Subpart R, Steel Erection Standards - § 1926.760(a)

     As a preliminary matter, the parties dispute the application of the scaffold standards at

Subpart L, § 1926.450 et seq. to the elevated platform holding the two employees engaged in steel
erection. OSHA cited SALCO under the scaffold standards for failing to secure the platform to the
forks and for the lack of fall protection.
The parties agree the employees on the platform were engaged in steel erection activities.
The employees were installing flashing (Tr. 94). See 29 C.F.R. §1926.750(b). CO Loupe testified
he observed no violations of the steel erection standards regarding the elevated platform (Tr. 96).
SALCO argues the steel erection standards in Subpart R, § 1926.760(a) et seq., preempt the
applicability of the scaffolding standards in Subpart L, § 1926.450 et seq. when the employees are
engaged in steel erection. SALCO maintains it is necessary that Subpart R specifically provide for
the incorporation of other standards such as the scaffold standards to be applicable. In support its
position, SALCO refers to the scope section of the steel erection standards which states “...the
requirements of this Subpart apply to employers engaged in steel erection unless otherwise
specified.” 29 C.F.R. § 1926.750(a). The scaffold standards requirements are not specifically
incorporated into steel erection standards.

4
SAL CO ’s argum ent that item s 1 and 2 of cita tion 2 a ddr ess the sa me ha zard and th erefo re on ly one c itation sho uld
have been issued is rejected. Although both citation items refer to a 13 foot fall hazard, the violative conditions
differ. Item 1 deals with inadequate securing of the platform. Item 2 involves the lack of fall protection for the
employees on the platform. The abatement of one item does not abate the other item.

                                                          -8­

SALCO’s preemption argument is also based on a statement by the drafters of the new steel
erection standards when they stated “[t]his revision [of the steel erection standards] clarifies that
steel erection is covered exclusively by Subpart R” (emphasis added). 66 Fed. Reg. 5196, 5200
(January 18, 2001). SALCO argues Subpart R was meant to be exclusive and comprehensive for all
conditions related to steel erection. In its notice announcing the intent to revise the steel erection
standards, OSHA also stated “[t]he comments received to date have convinced the Agency to
develop a separate proposed rule [that] will provide comprehensive coverage for protection in steel
erection.” 53 Fed. Reg. 2048, 2053 (January 26, 1988). The compliance directive for Subpart R
states steel erection is “always” covered by Subpart R (Exh. C-14 - CPL 2-1.34, p. 2-1; Tr. 94).
SALCO’s interpretation as to the exclusivity of Subpart R is rejected. A review of current
Review Commission decisions shows SALCO’s exclusivity argument has not been addressed since
the new steel erection standard became effective on January 18, 2002. 66 Fed Reg 37137
(July 17, 2001). However, earlier Review Commission decisions rejected the exclusivity of Subpart
R. See e.g. Peterson Brothers Steel Erection Co., 16 BNA OSHC 1196, 1198 (No. 90-2304, 1993)
(Commission reaffirms position that Subpart R does not provide exclusive fall protection
requirements for employees engaged in steel erection). The Review Commission rejected arguments
the fall protection requirements of Subpart R were exclusive because they were not comprehensive
and were only intended to cover interior falls on multi-tiered buildings. According to SALCO, the
revision of Subpart R remedied these shortcomings.
Unlike SALCO’s interpretation, the application of the fall protection requirements of Subpart
L involving scaffolds is only excluded if specifically listed as excluded in the steel erection
standards. This was not done by OSHA. The exclusivity sentence by the drafters relied upon by
SALCO must be read in context. The paragraph states:
In addition to revisions to Subpart R, Steel Erection, this rulemaking
makes necessary revisions to Subpart M of this Part, Fall Protection,
for the purposes of consistency. Currently § 1926.500(a)(2)(iii)
states: “Requirements relating to fall protection for employees
performing steel erection work are provided in § 1926.105 and in
Subpart R of this part.” This final rule revises the language of
§ 1926.500(a)(2)(iii) to read: “Fall protection requirements for
employee performing steel erection work (except for towers and
tanks) are provided in Subpart R of this part.” This revision [of the
steel erection standards] clarifies that steel erection is covered
exclusively by Subpart R.” 66 Fed. Reg. 5196, 5200
(January 18, 2001).

                                             -9­

This paragraph shows the drafters were interested in making changes in the fall protection
provisions of Subpart M, 29 C.F.R. § 1926.500 et seq., for consistency purposes. Subpart M is the
general fall protection requirements applicable to all construction activities. There were no revisions
to the scaffold standards under Subpart L.
Subpart R and Subpart L are vertical standards. Subpart L incorporates the scaffold standards
which govern the equipment and activities involved in scaffolds utilized during construction. The
scaffold standards address the hazards to employees working on a scaffold platform. Subpart R, the
steel erection standards, govern steel erection activities. The steel erection standards are silent as
to the use of scaffolds and the protection provided to employees utilizing scaffolds during steel
erection. Because the scaffold standards directly confront the creation of the hazard, working on an
elevated scaffold platform, and resolves the hazard, requiring the scaffold platform to be securely
attached to the forks and fall protection to be provided to employees on the scaffold at heights above
10 feet, the scaffold standards more specifically apply to the unsafe conditions cited. John Quinlan
t/a Quinlan Enterprise, 15 BNA OSHC 1780, 1781 (No. 91-2131, 1992) (“when more than one
provision governs a particular hazard, the more specifically applicable provision prevails”).
The Secretary discusses the applicability of standards in 29 C.F.R. § 1910.5(c)(2) which
states, in part:
....any standard shall apply according to its terms to any employment
and place of employment in any industry, even though particular
standards are also prescribed for the industry, as in Subpart B or
Subpart R of this part, to the extent that none of such particular
standards applies. To illustrate, the general standard regarding noise
exposure in § 1910.95 applies to employments and places of
employment in pulp, paper, and paperboard mills covered by
§ 1910.261.

    There is no showing OSHA intended scaffolds to be governed by the revised steel erection

standards or that Subpart L is subsumed within Subpart R. While Subpart R contains specific
provisions related to the use of personal fall arrest systems and safety net systems, there are no
provisions specific to scaffolds. There is simply no language either within the steel erection
standards or the Federal Register, which shows any intention to abrogate the application of the
scaffold standard.

                                               -10­

Subpart L governs the use of all scaffolds in the construction industry, while Subpart R fails
to mention scaffolds. SALCO’s attempt to use of the terms “walking/working surface” to show that
a steel erection standard, § 1926.760(a)(1), covers scaffolds is misplaced. While the steel erection
standards fail to define “walking/working surface,” they do define “unprotected sides or edges” and
give examples such as a floor, roof, ramp, and runway. They do not include scaffolds in the
definition. 29 C.F.R. § 1926.751. Also, it is noted the same definition of “unprotected sides or
edges” is found in Subpart M, 29 C.F.R. § 1926.500(b).
In revising Subpart R, the drafters attempted to make its provisions consistent with
Subpart M where possible. The scaffold requirements for fall protection are specifically exempted
from Subpart M application. 29 C.F.R. § 1926.500(a)(2)(i); 66 Fed. Reg. 5196, 5247
(January 18, 2001). A comparison to structure and terminology of Subpart L and R to the general
fall protection standards found in Subpart M demonstrates that Subpart L is more specifically
applicable to employees working from a scaffold.
This conclusion is supported by a review of the drafters’ intent in adopting fall protection
standards for steel erection. The drafters noted “[s]teel erection differs from general construction
in three major respects - the narrowness of the working surface, its location above, rather than below
the rest of the structure, and a minimum distance of approximately 15 feet to the next level.”
66 Fed. Reg. 5196, 5243 (January 18, 2001). These unique elements do not exist when an employee
is working on a scaffold platform as in this case. The drafters only discuss fall protection systems
for an employee physically working on the structure, not from a platform supported by a forklift.
66 Fed. Reg. 5196, 5243-5247 (January 18, 2001). The drafters in discussing the 15-foot height
requirement stated:
While some general contractors and large industrial steel erectors may
be providing fall protection below 15 feet, the data are unclear with
respect to how much of a need there may be for requiring fall
protection in steel erection at those lower heights. Also, many
situations in steel erection do not permit connecting fall protection
below 15 feet. In addition, steel erection work that is done between
6 and 15 feet is often performed from ladders, scaffolds, or personnel
work platforms (63 FR 43479). Therefore, OSHA has decided not to
require conventional fall protection in steel erection below 15 feet.
66 Fed. Reg. 5196, 5245.

                                            -11­

SALCO’s argument of preemption leads to unsafe results. In essence, contractors would
have no obligation to securely attach a scaffold to a forklift and provide fall protection to employees
10 feet above the ground on the scaffold. Under SALCO’s interpretation none of the requirements
in Subpart L would be applicable to scaffolds used by employees engaged in steel erection while on
scaffolds including proper bracing and planking.
There is no language, either within the standards or within the Federal Register, which
signifies any intention to abrogate the application of the scaffold standards. Indeed, Subpart R does
not address the use of scaffolds. The scaffold standards are not preempted by the steel erections
standards.
Item 1 - Alleged Violation of 29 C.F.R. § 1926.451(c)(2)(v)

       The citation alleges SALCO failed to securely attach the platform to the Gradall

Telehandler’s fork attachment (Item 1). Section 1926.451(c)(2)(v) provides that:
Fork-lifts shall not be used to support scaffold platforms unless the
entire platform is attached to the fork and the fork-lift is not moved
horizontally while the platform is occupied.

     There is no dispute the Gradall Telehandler on site was used to elevate a platform which held

two employees installing flashing at the eaves (Exhs. C-2, C-3).5 CO Loupe estimated the height of
the platform above the ground was 13 feet (Tr. 58-59). To hold the platform, the forks attached to
the Gradall’s boom slid into two pieces of channel iron underneath the platform (Exhs. C-4, C-5;
Tr. 45). Although the channel iron prevented the platform from falling off to either side or toward
the Gradall, the platform was not secured to the forks so that it could slide off the front (Tr. 44, 46,
113). There was no chain or sling securing the platform to the frame and there were no pins securely
attaching the platform to the forks (Tr. 45-46). Given the forks are not stationary, operator error or
mechanical failure could result in the forks rotating downwards, causing an unsecured platform to
tumble to the ground (Tr. 46, 113). Moreover, the operator could inadvertently catch the platform
on an object such as the eaves of the building and reverse the Gradall causing the platform to slide
off the forks (Tr. 46).

5
A warning sign on the Gradall Telehandler stated “Do not lift Personnel” (Exh. C-6; Tr. 87). It is noted
§19 26.4 51( c)(2 )(iv) req uires the forklift to b e spe cifically de signed by the m anufac turer to supp ort a sc affold
platform for employees. OSHA did no t SALCO for a violation of §1926.45 1(c)(2)(iv).

                                                           -12­

CO Loupe also testified he saw the wheels of the Gradall move with the employees on the
platform (Tr. 25, 46, 61). Loupe said he witnessed the Gradall reverse and reposition into another
location when he first arrived on worksite prior to opening the inspection (Tr. 24-25, 61). Equipment
Operator Myers’ testimony that he never moved the Gradall with employees on the platform is
considered less credible (Tr. 130). Additionally, as noted by the Secretary, the manufacturer’s manual
shows that the boom can telescope outwards and move vertically, up and down. There is no
indication the boom can move horizontally, sideways to the cab (Exh. R-1). Therefore, to work along
the eaves, the Gradall Telehandler must be repositioned to move the platform.
The Gradall Telehandler Operated as a Forklift
OSHA refers to the Gradall Telehandler as a forklift. SALCO argues the Gradall Telehandler
and attached personnel work platform are regulated by 29 C.F.R. § 1926.453 as an aerial lift and not
a forklift under § 1926.451. SALCO maintains although the Gradall Telehandler has a fork
attachment, it is more accurately classified as an extensible boom platform, particularly when used
to position personnel on a work platform. Extensible boom platforms are regulated under § 1926.453
for construction and § 1910.67 for general industry. Although SALCO contends the vehicle itself
never actually moved with personnel on the platform and that only the boom moved,
§ 1926.453(b)(viii) allows the extensible boom lift truck itself to be moved with personnel on the
platform so long as the boom is not elevated in the working position or if it meets certain criteria
under § 1926.453.
Section 1926.453 provides “aerial lifts include the following types of vehicle-mounted aerial
devices used to elevate personnel to job-sites above ground: (i) Extensible boom platforms...” An
extensible boom platform is defined by OSHA at § 1910.67 as “an aerial device (except ladders) with
a telescopic or extensible boom. Telescopic derricks with personnel platforms attachments shall be
considered to be extensible boom platforms when used with a personnel platform.”
With the fork attachment, the Gradall Telehandler functioned more as a forklift in supporting
the platform. The forks were used to hold the separate platform. The platform was not an integral
or permanent part of the fork attachment. It is noted JLG, the manufacturer of the Gradall
Telehandler, advises purchasers that OSHA requires all rough terrain forklift operators to be trained
according 29 C.F.R. § 1910.178(l). It is noted the manufacturer does sell a personnel work platform

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as an attachment for the Gradall. However, SALCO was using the fork attachment and not the
personnel work attachment. Also, throughout the testimony of equipment operator Myers, SALCO’s
counsel and Myers referred to the Gradall Telehandler as a forklift (Tr. 130).
Scaffold Platform
SALCO contends the platform was not a scaffold platform within the meaning of the
standard. SALCO argues the term “scaffold platform” indicates a particular type of platform. As
noted by SALCO, the standard does not use the word platform alone but rather uses it in conjunction
with scaffold. Not all work platforms are scaffold platforms. SALCO claims its platform is not a
scaffold platform.
SALCO’s argument misconstrues the clear meaning of “a scaffold platform.” A scaffold is
defined as “any temporary elevated platform (supported or suspended) and its supporting structure
(including points of anchorage), used for supporting employees or materials or both.” 29 C.F.R.
§ 1926.450(b). A platform is defined as a “work surface elevated above lower levels. Platforms can
be constructed using individual wood planks, fabricated planks, fabricated decks, and fabricated
platforms.” 29 C.F.R. § 1926.450(b). Clearly, a scaffold platform refers to the work surface on the
scaffold. The platform is a component of a scaffold system.
According to an OSHA Interpretation letter dated November 27, 2001 entitled “Applicable
Standards to Lifting Personnel on a Platform Supported by a Rough-Terrain Forklift,” OSHA makes
clear the platform supported by a forklift is a scaffold within the meaning of the scaffold standards
(Exh. C-7; Tr. 42-44; 61 Fed. Reg. 46043 (August 30, 1996). Also, see Armstrong Steel Erectors,
17 BNA OSHC 1385, 1389 (No. 92-262, 1995), (whether a working surface is considered a scaffold
platform is dependent on the temporary versus permanent nature of the structure).
Repeat Classification
The citation classifies SALCO’s violation of §1926.451(c)(2)(v)(Item 1) as a repeat violation.
Under § 17(a) of the Act, a violation is a repeat violation if, at the time of the violation, there was a
Commission final order against the same employer for a substantially similar violation. Potlatch
Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). The Secretary establishes substantial similarity
in several ways including showing the violations are of the same standard or if different standards,

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by showing similar hazards and means of abatement. Monitor Construction Co., 16 BNA OSHC
1589, 1594 (No. 91-1807, 1994).
There is no dispute that in July 2004, OSHA cited SALCO for a serious violation of
§1926.451(c)(2)(v) as a result of an inspection conducted by OSHA inspector John Watkins on
May 6, 2004 (Exhs. C-12; Tr. 49, 61, 125-126). SALCO did not contest the citation and paid the
assessed penalty (Tr. 127). The citation became a final order by operation of law on August 10, 2004
(Tr. 127). The standard cited in the previous citation is the same standard at issue in this case.
SALCO argues the violation is not properly classified as repeat. The fall hazard alleged in
the prior citation is 22 feet which exceeds the 15-feet trigger for steel erection. But, the fall hazard
in this case at issue is only 13 feet. Although the hazards are the same, SALCO argues the results of
a fall from the respective distances do not have the same effect. In promulgating Subpart R and
deciding on a 15-feet trigger height, SALCO claims OSHA could not establish there was a significant
risk of serious injury or death between 6 and 15 feet. But, such risk is present at heights between
15 and 25 feet.
SALCO’s reliance on the 15-feet trigger height under the steel erection standards is misplaced.
The standard cited involves a scaffold standard which has a 10-feet trigger height. The injuries likely
to be suffered from a fall from either height are serious (Tr. 48, 127).
The violation of § 1926.451(c)(2)(v) is properly classified as repeat.
Item 2 - Alleged Violation of 29 C.F.R. § 1926.451(g)(1)
The citation alleges SALCO failed to equip employees on a scaffold platform installing
flashing and exposed to a fall of 13 feet with a fall arrest system. Section 1926.451(g)(1) provides
that:
Each 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.
Paragraph (g)(2) of this section addresses fall protection for scaffold
erectors and dismantlers.

    There is no dispute two employees on the platform supported by the Gradall Telehandler were

not utilizing fall protection (Exhs. C-2, C-3). Roche was wearing a safety harness but it was not

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attached (Tr. 27, 114). Leadman Raub and employee Roche were installing flashing on an outside of
the eaves (Tr. 30, 114). The platform had suitable guardrails only on three sides (Tr. 26). There was
no guardrail along the front of the platform; the side facing the eaves (Tr. 28). According to the
building blueprints, the eaves was 15 feet, 3/4 inch (Tr. 36, 50, 94). CO Loupe estimated the height
of the platform was approximately 13 feet because the top of the eaves was at the employees’ waists
(Exhs. C-2, C-3; Tr. 58-59, 120).
SALCO argues the height of the platform was less than 10 feet because the citation states the
wall bracing was at the height of 12 feet (Tr. 68). SALCO states the platform was therefore at least
3 feet below that level or less than 9 feet above the ground. During his inspection, Loupe took no
measurements (Tr. 69). He testified the 12-foot figure was the bottom of the wall brace and speculated
the platform was positioned so the employees “could install the bottom portion and the top portion of
the brace” (Tr. 68). Loupe determined the 13-foot fall distance because “they had put the platform
halfway between the bottom and the top of the wall bracing” (Tr. 120).
SALCO’s argument the platform was at a height of less than 10 feet is rejected and contrary
to the record. The blueprints shown to CO Loupe identified the height of the eaves as 15 feet
3/4 inches (Tr. 36, 117). The blueprints identified the height of the steel structure; not the finished
building (Tr. 74). The photographs taken by Loupe show the flashing being bolted to the eaves was
somewhere at or below the waist levels of the employees (Exhs. C-2, C-3). Loupe consistently
testified the height of the platform where the employees were installing flashing was approximately
13 feet (Tr. 58-59, 120). The operative facts alleged in the citation and Loupe’s testimony are
consistent. Considering the height of the eaves and the photographs, CO Loupe’s estimate of a 13-foot
fall hazard is credible (Tr. 60).
However, it is noted when the platform was placed next to the eaves, the record does not show
an exposure to a fall hazard. The platform had suitable guardrails on three sides, the unprotected side
was guarded by the eaves (Exhs. C-2, C-3). The Secretary argues the platform was not abutted to the
eave during repositioning and SALCO cannot claim the building itself protected the employees from
a fall to the ground below (Tr. 60).
Subpart L does not require all sides of a platform have guardrails in order to protect employees.
Section 1926.451(b)(3) only requires a guardrail system or personal fall arrest system to protect

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employees from falling if the platform is greater than 14 inches from a horizontal or vertical surface.
CO Loupe did not know the distance between the platform and the eaves and agreed the eaves along
the otherwise open end could constitute protection from falls (Tr. 115). The side of a platform is only
defined by Subpart L as an open end if the space between the platform and a horizontal or a vertical
surface is greater than 14 inches. Based on the photographs, Loupe’s failure to take measurements and
his inability to know the distance between the platform and the eaves, the Secretary did not meet her
burden to establish an open end. Also, the record is silent as to how the employees were elevated to
the eaves. Therefore, the court is unable to ascertain whether the employees were exposed to a fall
hazard.
The alleged violation of § 1926.451(g)(1) is not established.

                                     Penalty Determination
      The Commission is the final arbiter of penalties in all contested cases. In determining an

appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity is
the principal factor to be considered.
SALCO is a medium size employer with less than 50 employees (Tr. 65). SALCO is not
entitled to credit for history because it received serious citations in the proceeding three years. Also,
no credit is given for good faith because SALCO made no showing of a safety program or safety
training.
A penalty of $2,000.00 is reasonable for a serious violation of § 1926.760(a)(1). One employee
was exposed to a fall hazard in excess of 15 feet to a cement floor without fall protection.
A penalty of $1,000.00 is reasonable for a repeat violation of § 1926.451(c)(2)(v). Two
employees including the leadman were on a platform supported by forks. The platform was not
adequately secured to the forks to prevent it from falling off.

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FINDINGS OF FACT AND
CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER


    Based upon the foregoing decision, it is ORDERED:
    1.      Citation No. 1, Item 1, alleged serious violation of 29 C.F.R. § 1926.760(a)(1), is

affirmed and a penalty of $2,000.00 is assessed.
2. Citation No. 2, Item 1, alleged repeat violation of 29 C.F.R. § 1926.451(c)(2)(v), is
affirmed and a penalty of $1,000.00 is assessed.
3. Citation No. 2, Item 2, alleged repeat violation of 29 C.F.R. § 1926.451(g)(1), is
vacated and no penalty is assessed.

                                                          /s/ Ken S. Welsch
                                                    KEN S. WELSCH
                                                    Judge

Date: April 24, 2006

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