Seedorff Masonry, Inc.

Plain-English summary

Seedorff Masonry employees worked on a scaffold about 19 to 20 feet above the ground. A materials platform blocked the normal ladder access, and a mason's tender used an unguarded end of the work platform and worked within three feet of that edge. The judge affirmed the guardrail violation as serious but reduced the proposed $875 penalty to $100 because only one employee had brief exposure and the likelihood of an accident was extremely low. The judge also affirmed a violation for one unsecured cross brace, but reclassified it as other-than-serious and assessed no penalty because the evidence showed little chance of a collapse or serious injury. The total assessed penalty was $100.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(g)(4)(i) and 1926.452(c)(2)
• Outcome: Both items were affirmed; the guardrail item drew a $100 penalty, and the brace item was reclassified as other-than-serious with no penalty.
• Key point: An employer cannot excuse an unguarded scaffold end by relying on employees' use of that end after the employer blocked the designated ladder access.

Full text (OSHRC public release)

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

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Co mpla inant,

                           v.                                OSHRC DOCKET NO. 05-1154

SEEDORFF MASONRY, INC.,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Tob ias B. Fritz, Esq., Office of the Solicitor, U.S. Department of Labor, K ansas City, Missouri

      For the Re spo nde nt:
               A. Stevenson Bogue, Esq., M cGrath North M ullin & K ratz, Omaha, Nebraska

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

651-678; hereafter called the “Act”).
Respondent, Seedorff Masonry, Inc. (Seedorff), at all times relevant to this action maintained a
place of business at 72nd and Main Street, Ralston, Nebraska, where it was engaged in construction.
Seedorff admits it is an employer engaged in a business affecting commerce and is subject to the
requirements of the Act (Tr. 7).
On May 24, 2005, the Occupational Safety and Health Administration (OSHA) conducted an
inspection at Seedorff’s Ralston worksite. As a result of that inspection, OSHA issued a citation alleging
violations of the scaffolding standards at 29 CFR §1926, Subpart L. By filing a timely notice of contest
Seedorff brought this proceeding before the Occupational Safety and Health Review Commission
(Commission). On October 27, 2005, a hearing was held in Omaha, Nebraska. The parties have submitted
briefs on the issues, and this matter is ready for disposition.
The Inspection
When he arrived at Seedorff’s Ralston worksite, CO Darwin Craig observed Seedorff employees
working on a mason’s walk-through scaffold approximately 19 to 20 feet above the ground (Tr. 21). A
mason’s tender was working on the platform level; two masons were working from an outrigger on the
back side of the scaffold next to the building (Tr. 21-22; Exh. C-1). During the inspection, the tender
walked back and forth between the mud bucket at the left side of the scaffold and the outrigger (Tr. 23,
105; Exh. C-1, C-3).
There was no end rail on the right side of the scaffold platform. Craig observed the tender working
within three feet of the scaffold’s unguarded end (Tr. 32-33). Employees accessed the platform by way
of a ladder attached at the right rear of the scaffold (Tr. 21, 30; Exh. C-3, C-5). The attached ladder was
between 24 and 30 inches wide. A grab bar extended vertically from the side rail near the middle of the
work platform (Tr. 102; Exh. C-5). The ladder’s point of access was blocked by the materials platform.
Employees, therefore, actually accessed the platform by swinging around to the left of the grab bar onto
the unguarded edge of the platform rather than passing through the side rails of the ladder (Tr. 116-17; Exh.
C-5).
The remainder of the scaffold was appropriately guarded (Tr. 24-25).
CO Craig also observed a cross brace on the left side of the scaffold that had not been secured with
its pin (Tr. 37; Exh. C-1, C-8).
Alleged Violation of §1926.451(g)(4)(i)
Serious citation 1, item 1 alleges:
29 CFR 1926.451(g)(4)(i): Guardrail systems were not installed along all open sides and ends of platforms.

    Seedorff Masonry Inc. – Guardrail systems were not installed along all open ends and sides
    of platforms. The third level of the scaffold at the ladder access point was not equipped
    with a guardrail system on the open end of the scaffold.

    The cited standard provides:

    Guardrail systems shall be installed along all open sides and ends of platforms. Guardrail
    systems shall be installed before the scaffold is released for use by employees other than
    erection/dismantling crews.

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

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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).
The facts are not disputed. Respondent argues, however, that the cited standard is superseded in
this case by §1926.451(e)(2), which requires that employers comply with Subpart X when using portable,
hook-on and attachable ladders. Seedorff specifically refers to §1926.1051(3), which provides, inter alia,
“when a building or structure has only one point of access between levels, that point of access shall be kept
clear to permit free passage of employees.” According to Seedorff, the ladder standards are incompatible
with the cited scaffold guarding standard, and preempt it in this situation.
Accepting, arguendo, Seedorff’s interpretation of the interplay between the scaffold guarding and
ladder standards, the facts nonetheless establish a violation of §1926.451(g)(4)(i). Section 1926.1051(3)
requires only that the point of access be kept clear. Seedorff itself defines the “point of access” as the pass
through between the side rails, and does not suggest that the standard preempts the guarding requirements
in regard to remainder of the platform (Respondent’s post-hearing brief, p. 7). Seedorff’s failure to guard
the end of the platform in front of the ladder, therefore, violates the standard. Seedorff cannot excuse its
failure to guard by pointing to its employee’s use of the unguarded end for access, where Seedorff created
that hazardous situation by blocking the pass through.
Seedorff argues that it has used the identical configuration on its scaffolds for many years without
objection by OSHA, despite repeated inspections (Tr. 63). It is well settled, however, that prior inspection
alone does not give rise to an inference that OSHA previously determined there was no hazard or citable
condition. Seibel Modern Manufacturing & Welding, 15 BNA OSHC 1218, 1991-93 CCH OSHD ¶29,442
(No. 88-821, 1991). The Secretary is not estopped from enforcing a standard except where she has
engaged in some affirmative misconduct, or active misrepresentation, resulting in injustice to the
employer. Erie Coke Corp., 15 BNA OSHC 1561, 1992 CCH OSHD ¶29,653 (No. 88-611, 1992). There
has been no showing that OSHA affirmatively led Seedorff to believe its scaffold configuration complied
with the cited standard. Seedorff’s argument is, thus, rejected.
The record establishes that Seedorff knew that its employees were working on a platform with an
unguarded end. The violation is established.
Penalty
A penalty of $875.00 was proposed for this violation. In determining the penalty the Commission
is required to give due consideration to the size of the employer, the gravity of the violation and the
employer's good faith and history of previous violations. The gravity of the offense is the principle factor
to be considered. Nacirema Operating Co., 1 BNA OSHC 1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972).

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Factors to be considered in determining the gravity of the violation include: (1) the number of employees
exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any;
and (4) the degree of probability of occurrence of injury. Kus-Tum Builders, Inc. 10 BNA OSHC 1049,
1981 CCH OSHD ¶25,738 (No. 76-2644, 1981).
This violation was serious, in that an employee falling from the scaffold would likely suffer broken
bones at a minimum (Tr. 44). The gravity of the violation was overstated, however. Only one employee,
the tender, was exposed to the cited violation for a total of 10 to 15 minutes. According to the CO, the
tender never came closer than three feet from the unguarded edge. The remainder of the scaffold was
appropriately guarded. The likelihood of an accident occurring was extremely low.
Where the low gravity of a violation is the overriding factor, a penalty of as little as $100.00 has
been deemed appropriate for a “serious” violation. Flintco, Inc., 16 BNA OSHC 1404, 1993-95 CCH
OSHD ¶30,227 (No. 92-1396, 1993); Orion Construction, Inc., 18 BNA OSHC 1867; 1999 CCH OSHD
¶31,896 (No. 98-2014, 1999). A penalty of $100.00 will be assessed.

                              Alleged Violation of §1926.452(c)(2)
   Serious citation 1, item 2 alleges:

29 CFR 1926.452(c)(2): All brace connections were not secured:

   Seedorff Masonry, Inc. – All brace connections were not secured on the scaffold. A cross
   brace was not secured at its attachment point. This particular brace was just below the
   working level or the scaffold.

   The cited standard provides:

   Frames and panels shall be braced by cross, horizontal, or diagonal braces, or combination
   thereof, which secure vertical members together laterally. . . .All brace connections shall
   be secured.

Discussion
The facts are not disputed. Respondent should have known of the violative condition, as 29
1926.451(f)(3) requires inspection of the scaffold at the beginning of every shift. Nonetheless, Seedorff
argues that the citation should be vacated because the evidence does not establish that the violation could
result in serious harm.
Most occupational safety and health standards include requirements or prohibitions that by their
terms must be observed whenever specified conditions, practices or procedures are encountered. These
standards are predicated on the existence of a hazard when their terms are not met. Therefore, the

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Secretary is not required to prove that noncompliance with these standards creates a hazard in order to
establish a violation. Austin Bridge Company, 7 BNA OSHC 1761, 1979 CCH OSHD ¶23,935 (76-93,
1979). When a standard prescribes specific means of enhancing employee safety, a hazard is presumed
to exist if the terms of the standard are violated. Clifford B. Hannay & Son, Inc., 6 BNA OSHC 1335, 1978
CCH OSHD ¶22,525 (No. 15983, 1978). The cited violation has been established. Only the gravity of the
violation is in question.
Penalty
The violation was not shown to be “serious.” Seedorff’s expert witness, structural engineer
Charles Saul, testified that Seedorff’s failure to attach the brace would cause neither a full nor a partial
collapse of the scaffolding (Tr. 72, 90). At most, the unsecured brace could result in some lateral
movement (Tr. 84, 88). CO Craig agreed, testifying that there could be some movement of the scaffolding,
causing an employee to fall, and sustain scrapes and/or bruises (Tr. 49). Moreover, he agreed that because
the missing brace was one of 32, all of which were properly attached, the chance of the platform being
dislodged was small (Tr. 48-49, 72, 90).
Under §17(k) of the Act, a violation is considered serious if the violative condition or practice gives
rise to a "substantial probability" of death or serious physical harm. Because scrapes and bruises do not
constitute serious physical harm, and there was no substantial probability of a more serious injury,the
violation will be reclassified as “other than serious,” and no penalty assessed.

                                             ORDER

1. Serious citation 1, item 1, alleging violation of 29 CFR §1926.451(g)(4)(i) is AFFIRMED and
   a penalty of $100.00 is ASSESSED.

2. Citation 1, item 2, alleging violation of 29 CFR §1926.452(c)(2) is AFFIRMED as an “Other
   than serious” violation, without penalty.

                                                     /s/
                                                    Benjamin R. Loye
                                                    Judge, OSHRC
   

Dated: January 24, 2006

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