Frazier Masonry Corporation

Plain-English summary

An OSHA compliance officer observed three people working near an unguarded opening on a 38-foot scaffold for about fifteen minutes without other fall protection. The judge found that the scaffold standard applied and that the observed condition violated its terms. OSHA did not identify the three people or prove that any of them worked for Frazier Masonry. Because several contractors operated at the site and other employers were present in the same area, the judge would not infer an employment relationship. The citation was vacated because OSHA failed to prove employee exposure by Frazier employees.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(g)(1)
• Outcome: Serious scaffold fall-protection citation vacated with no penalty.
• Key point: At a multi-employer worksite, the Secretary must prove that an exposed worker was employed by the cited employer.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

                     Complainant,
                                                          OSHRC DOCKET NO. 09-1352
                             v.

Frazier Masonry Corporation,

                     Respondent.

Appearances:

    Jeremiah Miller, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, WA
            For Complainant

    Robert D. Peterson, Esq., Robert Peterson Law Corporation, Rocklin, CA
            For Respondent

Before: Administrative Law Judge Benjamin R. Loye

                                    DECISION AND ORDER

                                        Procedural History

    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”). The Occupational Safety and Health Administration (“OSHA”)

conducted an inspection of a Frazier Masonry Corporation (“Respondent”) worksite in Boise,

Idaho on June 22, 2009. As a result of the inspection, OSHA issued a Citation and Notification

of Penalty to Respondent alleging one violation of the Act. Citation 1 Item 1 alleged a serious

violation of 29 C.F.R. §1926.451(g)(1) with a proposed penalty of $4,500.00. Respondent

timely contested the citation and an administrative trial was conducted on March 30, 2010 in

Boise, Idaho. Both parties submitted a post-trial brief and the case is ready for disposition.

                                             Jurisdiction

    Jurisdiction of this action is conferred upon the Occupational Safety and Health

Review Commission pursuant to Section 10(c) of the Act. The record establishes that at all
times relevant to this action, Respondent was an employer engaged in a business affecting

interstate commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. §652(5).

Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

                                          Stipulations

   The parties stipulated to the following:

   (1)    The Occupational Safety and Health Administration had jurisdiction over

Respondent’s worksite at issue in this case (Tr. 7);

   (2)    The Occupational Safety and Health Review Commission has jurisdiction to

adjudicate this matter (Tr. 7);

   (3) Compliance Safety and Health Officer Patrick Nies was a duly authorized

representative of the Secretary of Labor at the time of this inspection (Tr. 7);

   (4)    Michael Walczyk and Scott Fromme were supervising foremen employed by

Respondent at this worksite at the time of the inspection (Tr. 8);

   (5) If an employee fell from the scaffold at issue, there was a substantial probability that

the fall would have resulted in serious injury or death (Tr. 6, 23);

   (6) The proposed penalty was computed in accordance with Federal OSHA policy and

procedures and was properly calculated for the proposed violation (Tr. 24).

                               Additional Factual Findings

   On June 22, 2009, Compliance Safety and Health Officer (“CSHO”) Patrick Nies, of the

Boise Area Office of the Occupational Safety and Health Administration, was conducting

personal business when he observed, from a business across the street, individuals working on a

38-foot scaffold at a construction site. (Tr. 12, 19). He saw three individuals receiving a

masonry mortar tub where two sections of scaffold guardrails had been removed. (Tr. 12-13).

The tub of mortar was being lifted with a telehandler, a type of construction vehicle equipped

with a telescoping forklift. (Tr. 28-29). The three individuals were observed working near the

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unguarded portion of the scaffolding for approximately fifteen minutes. (Tr. 20). No alternative

forms of fall protection were being used during the period in which the guardrails were removed.

(Tr. 22-23).

   Pursuant to his office’s Local Emphasis Program on fall hazards, he entered the jobsite,

contacted the General Contractor, and initiated an OSHA inspection. (Tr. 13). After his initial

attempts to take photographs with his mobile phone failed, he left the site to obtain a camera

from his office. (Tr. 16). After approximately one hour, he returned with the camera and

continued with the inspection. (Tr. 31). The condition no longer existed at that point, and neither

of the photographs introduced by Complainant depicts the alleged violation. (Ex. C-3-1, C-3-2).

In fact, the telehandler seen on the ground in one of Complainant’s photographs is not the same

telehandler used by Respondent at the time CSHO Nies observed the violation. (Ex. C-3-1). It

belonged to another contractor working at the site, indicating the presence of other companies

and employees working in and around the area. (Tr. 29-30).

   Mike Walczyk, Respondent’s Foreman, was present at the worksite during CSHO Nies’s

initial entry and subsequent visit with the camera. (Tr. 31-32). However, Mr. Walczyk was not

working near the scaffold at issue during the alleged violation. (Tr. 33). He was located on

another side of the building during the fifteen minutes in which the scaffold guardrails were

removed. (Tr. 33). Although Respondent asserts a Fourth Amendment violation as a defense,

there is no evidence in the record that any person on the jobsite, from either the General

Contractor or Respondent, objected to OSHA’s presence or to the inspection.

                                       Discussion

   To establish a prima facie violation of the Act, the Secretary must prove: (1) the standard

applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the

employees had access to the cited condition; and (4) the employer knew, or with the exercise of

reasonable diligence could have known, of the violative condition. Ormet Corporation, 14 BNA

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OSHC 2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991).

                                   Citation 1 Item 1

   The Secretary alleged in Citation 1 Item 1 that:

          29 C.F.R. 1926.451(g)(1): Each employee on a scaffold more than 10 ft.

          above a lower level was not 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. East

          side of structure, exterior at close proximity to roof level, outboard side of

          the scaffold; on or about 6/22/09 and at times prior thereto, three

          employees removed two sections of guardrail and a post while assisting a

          tele-handler in placing a loaded mortar bucket onto the platform of an

          elevating scaffold. The employees were standing/walking at the immediate

          edge of the platform with no means of fall protection.

   The cited standard provides:

          (g) Fall protection. (1) 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.

   The parties stipulated to the serious classification of the proposed violation and the

appropriateness of the proposed penalty. The standard governs fall protection requirements for

scaffolds more than ten feet high, and therefore, clearly applies to the cited condition. The

standard was violated in that two sections of guardrails were removed from a 38-foot scaffold for

fifteen minutes, with no alternative fall protection methods having been implemented.

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Complainant failed to introduce any evidence identifying the three individuals working

near the guardrails. Complainant also failed to introduce any evidence indicating that the three

unidentified individuals were actually employed by Respondent. Furthermore, CSHO Nies

conceded that the three unidentified individuals were the only people exposed to this condition.

(Tr. 26). Considering the fact that Respondent was one of many subcontractors on this site, and

Complainant’s own photograph revealed the presence of a different employer operating in this

same area, the court will not assume that the three unidentified individuals observed by CSHO

Nies from across the street were Respondent’s employees. See Bethlehem Steel Corp., 1976-77

CCH OSHD ¶21,147 (No. 16311, 1976). Since Complainant failed to present any evidence that

one or more of the three exposed individuals were employed by Respondent, Complainant failed

to establish a prima facie violation.

   Based on the court’s finding that Complainant failed to prove all of the elements

necessary for a prima facie violation, Respondent’s Fourth Amendment argument will not be

addressed.

                                       ORDER

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that

Citation 1 Item 1 is hereby VACATED.

Date: July 1, 2010 _/s/_________
Denver, Colorado BENJAMIN R. LOYE
Judge, OSHRC

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