OSHRC ALJ decision Docket 15-1835 Decided February 15, 2018 Mixed result Judge Dennis L. Phillips

E&N Construction, Inc.

Four scaffold items affirmed and penalties reduced

Apply this to your situation

This order from 2018 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.

Final order, not Commission precedent

This decision by an OSHRC Administrative Law Judge became a final order of the Commission because no Commissioner directed review (29 U.S.C. § 661(j)). It binds the parties but is not binding precedent in other cases. The full text below is from the official OSHRC release.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.

Read the official release (oshrc.gov)

Plain-English summary

E&N Construction employees installed brick veneer from a two-tier scaffold at an apartment project. OSHA cited inadequate platform planking, unsafe frame climbing, failure to inspect the scaffold before the shift, missing fall protection above 10 feet, and a missing cross-brace. The judge affirmed every item except the inspection item, finding credible evidence that the foreman had inspected the scaffold before work began. The foreman’s presence and knowledge supported employer knowledge of the other visible conditions. The judge reduced the total penalty from the proposed $35,000 to $7,560 because OSHA improperly denied ordinary size and history reductions based on a manager’s prior affiliation with unrelated employers.

Decision snapshot

Cited standard(s): 29 C.F.R. § 1926.451(b)(1); 29 C.F.R. § 1926.451(e)(1); 29 C.F.R. § 1926.451(f)(3); 29 C.F.R. § 1926.451(g)(1)(vii); 29 C.F.R. § 1926.452(c)(2)
Outcome: Four serious scaffold items affirmed, one item vacated; $7,560 total penalty assessed.
Key point: Penalties must be based on the cited employer’s statutory factors, not a manager’s history with unrelated companies.

Full text (OSHRC public release)

C Legan
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2018-01-02T17:53:00Z
2018-02-20T17:18:00Z
2018-02-20T17:19:00Z
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EN-US
X-NONE
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United
States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120
20th Street, N.W., Ninth Floor

Washington,
DC 20036-3457

��

SECRETARY OF LABOR,

Complainant,

� OSHRC
DOCKET NO. 15-1835

E&N
CONSTRUCTION, INC.,

��

�� Respondent.

�

APPEARANCES:

Margaret A. Temple, Esquire,

Department of Labor, Office of the
Solicitor,

New York, New York

For the Secretary

Daniel R. Bevere, Esquire,

�� Piro Zinna
Cifelli Paris & Genitempo, LLC

�� Nutley, New
Jersey

�� For Respondent

BEFORE: ��

Dennis L. Phillips

Administrative
Law Judge

DECISION AND
ORDER

This proceeding is
before the Occupational Safety and Health Review Commission (the Commission)
pursuant to � 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. � 659(c) (the Act). � On Saturday,
April 18, 2015, Compliance Officer (CO) Chester Lloyd [1]
noticed what appeared to be employees working from a scaffold without fall
protection at a construction worksite
on Glenwood Avenue in Bloomfield, New Jersey (worksite). � CO Lloyd opened an OSHA inspection for E&N
Construction, Inc. (E&N). � E&N
was installing brick veneer on the columns of the garage for a large apartment
building under construction. � (Tr. 151).

On September 18,
2015, OSHA issued a citation and notification of penalty (Citation) to E&N.
� The Citation alleged five serious violations
of OSHA's scaffold standard for a total proposed penalty of $35,000. � (Stipulations of fact and law (Stip.) No. 4,
Joint Pre-Hearing Statement (Jt Pre-Hr�g Stmt), 3-4; Tr. 15). � E&N timely contested the citation. � (Stip. No. 5, Jt Pre-Hr�g Stmt, 3-4; Tr. 15).

A one-day trial was
held in Newark, New Jersey on December 6, 2016. �
Three witnesses testified at the hearing: � CO Lloyd and Assistant Area Director (AAD)
Brian Flynn [2] for the
Secretary, and Shawn Roney for Respondent.

The five citation
items alleged that: � Respondent had not
adequately planked the scaffold�s working platforms, employees were climbing
the scaffold�s frame to access the scaffold, a pre-shift inspection of the
scaffold was not conducted, employees were working over 10 feet above ground
without fall protection, and cross-braces were missing from the scaffold. �

Jurisdiction

Based upon the
record, the Court finds Respondent, at all relevant times, was engaged in a
business affecting commerce and was an employer within the meaning of sections
3(3) and 3(5) of the Act, 29 U.S.C. �� 652(3) and (5). [3] � (Answer �� I-III; Stip. No. 2, Jt Pre-Hr�g
Stmt, 3-4; Tr. 14). � The Court finds the
Commission has jurisdiction over the parties and subject matter in this case. � (Stip. No. 1, Jt Pre-Hr�g Stmt, 3-4; Tr. 14).

Background

�� E&N is a concrete
and masonry company in Passaic, New Jersey owned by Neil Kokel and Elio
Ferrara. � (Tr. 150-51, 182). � E&N contracted with construction
management group Avalon Bay Properties to install brick veneer on the outside
of a large 4-story apartment building that was roughly the size of a city block
in Bloomfield, New Jersey (Bloomfield project). �
(Tr. 22, 152). � Avalon Bay
Properties was the general contractor for the Bloomfield project. � (Tr. 22, 152). � E&N had been working at the Bloomfield project
for about five to six months and April 18, 2015 was E&N�s last day of work at
the worksite that required scaffolding. �
(Tr. 153, 174). �

CO Lloyd drove by the Bloomfield project
after conducting an inspection at another worksite. � (Tr. 21-22). �
The CO observed employees working from a scaffold platform [4]
without fall protection and he stopped to investigate in accordance with OSHA�s
local area emphasis fall protection program. �
(Tr. 22-23). � As a result of the
inspection, the CO recommended issuance of five serious citation items related
to fall protection and scaffolding violations. �
( Stip. No. 4, Jt Pre-Hr�g Stmt, 3-4; Tr. 14-15, 25). � His
supervisor, AAD Flynn, recommended the maximum $7,000 penalty for each
item. � (Tr. 35).

Relevant
Testimony

CO Chester Lloyd

CO Lloyd conducted an inspection of
Respondent�s worksite on Saturday, April 18, 2015. [5] � (Tr. 20, 81-82). � CO Lloyd opened the inspection after
observing employees working from a two-tier scaffold over ten feet above ground
with no apparent fall protection. � (Tr.
22-23, 54). �

CO Lloyd arrived at the worksite
mid-afternoon � around 2:00 or 3:00 p.m. � and was there for about an
hour. � (Tr. 24, 76-79). � CO Lloyd pulled into a parking lot west of
the worksite and took photographs of employees working from a tubular welded frame
scaffold. � (Tr. 22). � He saw a man, identified as Manuel �Manny� Martins,
looking toward the scaffold watching employees work. � (Tr. 23-25, 32, 34, 74; Ex. 1, p. 10 at �A�).

After the CO identified himself, Mr. Martins [6]
told the CO that he was E&N�s worksite foreman for the Bloomfield Project. [7] � (Tr. 23, 32, 48, 61, 80). � The CO opened the inspection with Foreman
Martins and explained he had stopped at the worksite under the OSHA local fall
protection emphasis program because he observed employees working from the
scaffold without fall protection. � (Tr.
22-23). � Foreman Martins told the CO the
employees working on the scaffold were employees of E&N. � (Tr. 98). �
He also told the CO he reported to the �big boss� Shawn Roney. � (Tr. 23, 82). �

When the CO arrived, it was the end of the
work day and employees were getting ready to go home. � (Tr. 81, 86). �
The CO took �a lot of photos.� � He
took photographs for twenty minutes from the time he arrived at the worksite. � He also took photographs later during his
visit to the worksite. � (Tr. 26, 85-86;
Ex. 1). � When he realized the scaffold
was being dismantled as he talked to Foreman Martins, the CO took a measurement
of the distance from the ground to the plank on the scaffold�s second-tier
platform at the middle column. � (Tr. 33-34,
86-87). ��

When the CO asked
about the scaffold�s condition, Foreman Martins told him that he was not sure
why the guardrails were down�maybe because the guys wanted to get home
early. � (Tr. 34). � When the CO asked the foreman if he knew
employees were working without fall protection, Foreman Martins did not
directly answer. � Instead, he stated
employees wanted to finish because it was the end of the day on a Saturday, and
go home. � (Tr. 25, 46, 66). �

The CO interviewed two employees during his
inspection, Messrs. Pedro Cedillo and Arnoldo Pinheiro. � Both workers told him that they were employed
by E&N. � (Tr. 36-37, 82). � Other employees left the worksite before he
was able to interview them. � (Tr.
37). � By the end of the hour, the
scaffold was completely dismantled. � (Tr.
24, 74, 81, 86). � The CO photographed the
area after the scaffold was completely dismantled. � (Tr. 86). � Foreman Martins was onsite during the
hour-long inspection. � (Tr. 74, 81-82).

During his testimony, the CO described what
he had observed and photographed at the worksite. � The CO saw that between the scaffold�s uprights,
planks were missing from the scaffold�s working platforms. � There were several areas of missing planks on
the second-tier platforms where employees were working at the time of the OSHA
inspection. � (Tr. 27-31; Ex. 1, � p. 3, at �B�-�D�, 4 at �B�). � He photographed employees, including Mr.
Pinheiro, working on the second-tier of the platform where planks were
missing. � Mr. Pinheiro was photographed several
times while working from the scaffold�s second-tier where planks were missing. � (Tr. 28-38, 59, 61; Ex. 1, pp. 2-4, 6-8, 10-13,
15, 18-24). [8]
� The CO also photographed an employee he
identified as Mr. Cedillo standing or working on the scaffold�s second-tier. [9]
��

Employees on the second-tier of the scaffold were
doing rub-down work on bricks on two columns (the �middle� one and �one to the
east�) at the entrance to the building�s garage. [10] � (Tr. 29-34, 55-66, 83, 192; Ex. 1, pp.
2-3 at �A� [Pinheiro], � 5 at �B�
[Pinheiro], 7 at �D� [Pinheiro], 8 at �A� [Pinheiro], 10 at �B� [Pinheiro],
11-13 at �A� [Mr. Pinheiro], 18-20 at �A� [Pinheiro], 21 at �B� [Pinheiro],
22-24 at �A� [Pinheiro]; 2 at �D�, 3 at �G�, 5 at �D�, 8 at �C�, [unidentified
by name] wearing red hat; 7 at �E� [unidentified by name] wearing yellowish
shirt; 10 at �C�, 17 at �B�, 18 at �B�, [unidentified by name] wearing yellow
hat and blue in color shirt). � CO Lloyd stated that Exhibit 1, page 8, shows
an employee doing rub-down work on the brick veneer�not engaged in dismantling
the scaffold. � (Tr. 192). � He said the workers on the second-tier of the
scaffolding were �clearly working and not dismantling.� � (Tr. 95, 193). �

The CO witnessed employees climbing the
scaffold�s frame to access the platforms. �
(Tr. 39-42, 45, 166-67; Ex. 1, pp. 3 at �E�, 4 at �C�, 5 at �A�, 6 at
�B�, 7 at �C�). � He noted there were no
guardrails or other fall protection in use for the employees working from the
second-tier of the scaffold. � (Tr. 54-56,
61; Ex. 1, pp. 2, 10). � The CO believed
that guardrails could have been placed on the scaffold frame to provide fall
protection for employees while they were rubbing down the walls. � He said Subpart L of � 1926 of OSHA�s
Scaffolding standards also provides for a 14-inch space to allow employees to
perform work in front of them. � See 29 C.F.R. � 1926.451(b)(3). � (Tr. 191-93). �
�

The CO also noticed that cross-braces that
support the scaffold�s frame were missing. �
(Tr. 68-72 , 91-92, 197; Ex. 1, pp. 3 at �H�, 4, at �D� & �F�,
7 at �F�, 8 at �D�). � The CO stated that cross-braces should not be
removed while employees were still working from the scaffold�s top tier. � He said the photograph at Ex. 1, p. 4 at �F�,
showed that a set of cross-braces were not attached to the scaffold when it
should have been attached because workers were still working on the second-tier
platform. � He stated that workers were
exposed to the 29 C.F.R. � 1926.452(c)(2) hazard because the cross-braces were
not intact at the time. � (Tr.
29-30, 68-69, 192, 197-98; Ex. 1, pp. 2 at �A�, 3 at �A�, 4 at �D� and �F�, 5 at �B�, 8 at �A�,
23 at �A�, 24 at �A�). �

Shawn Roney

Mr. Shawn Roney [11]
has been a manager at E&N for about three years. � He is one of two managers at E&N. � He has no ownership interest in E&N. � (Tr. 151, 182). � As manager, he negotiates contracts, talks to
site foremen, and negotiates with vendors, among other things. � (Tr. 151). �
For the Bloomfield project, Mr. Roney worked on the bids for the project,
assisted the foreman, and was generally on site at least once a week. � (Tr. 153). � He testified that he was the project manager
for the project at the worksite. � (Tr.
175). � Mr. Roney said he believed that
April 18, 2015 was E&N�s last day of work at the Bloomfield project that
required scaffolding. � (Tr. 153. 174). � Mr. Roney was not at E&N�s worksite
during the OSHA inspection or at any time on April 18, 2015. � (Tr. 159-62). �

Scaffolding had been used continuously by
E&N employees to apply the brick veneer to the large multi-story apartment
building project. � (Tr. 153-56). � A mast-climbing scaffold rented from Advanced
Scaffolding was used by workers for most of the project. [12] � (Tr. 156-58). �
On April 18, 2015, a tubular welded frame scaffold was used to install
brick veneer on columns by the building�s garage entrance. [13] � (Tr. 157). �
A tubular welded frame scaffold was used here because the column area
configuration did not support a mast-climbing scaffold. � (Tr. 157). �
Mr. Roney testified that pipe scaffolding was used because E&N
workers had to work completely around the columns. � This was the final area of brick veneer
installed at the project. � (Tr.
157). �

Mr. Roney testified that as the brick is
applied to the building�s walls, cement splashes off the scaffold�s toe boards
onto the brick face of the building. �
(Tr. 160-61). � He said the brick
mason removes the scaffold�s toe boards and planks next to the brick veneer and
cleans, or rubs-down, the brick veneer as the scaffold is dismantled. � Mr. Roney stated �as you�re going down you
just clean it up a little bit, you take a trowel, you cut the joints in them
areas out and you have to rub it down as you�re dismantling the scaffold.� � He testified that he has �been doing this
since [he] was 14 years old and that�s the only way I know.� [14] � He further said it was standard practice and
procedure not to provide any fall protection when scaffolding is being
dismantled at a height of 13 feet, 4 inches and workers are doing the rubdown
on the wall. � He testified that �it�s
just not practical� because you need something to attach to. � He said Foreman Martins made the decision not
to use fall protection while the scaffolding was being dismantled. � (Tr. 161-64).

When the CO arrived at the worksite, the
employees were completing the rub-down work on the brick veneer at the garage
entrance. � Mr. Roney stated the
photographs verify that all the brick veneer had been installed. � (Tr. 160-61; Ex. 1). �

With respect to employee access to the
scaffold platforms, Mr. Roney stated the photographs show the ladder that was available
to access the scaffold. � (Tr. 165-67; Ex.
1, pp. 2 at �E�, 3 at �J�). � Mr. Roney
admitted employees were doing things that they should not have been doing when climbing
the scaffold frame instead of using the ladder and that Foreman Martins should
have stopped them. [15] � (Tr. 167). �

According to Mr. Roney, fall protection
equipment had been provided for employees to use at the site. � (Tr. 163). �
However, Mr. Roney also believed it was not practical to use the
equipment and that Foreman Martins must have decided to not use fall protection
during the dismantling of the scaffold. �
(Tr. 163-64, 217). � He said it was
E&N�s practice to have the site foreman inspect scaffolding at the
beginning of each workday. � (Tr.
169). �

Mr. Roney believed there was only one brace
missing, not two as alleged by CO Lloyd in Citation 1, Item 5. � He believed the missing cross-brace had been in
place on the scaffold earlier that day and had just been removed because the
scaffold was being dismantled. � From
looking at the photograph at Ex. 1, p. 4, Mr. Roney believed that a piece
leaning, from apparently the ground, against a platform in a diagonal position
was a brace CO Lloyd said was missing [16]
[Ex. 1, pp. 3 at �H�, 4 at �D�, 7 at �F�, 8 at �D�]. � (Tr. 170-74, 197; Ex. 1, p. 4 at �F�). � He also said that some cross-braces, already
removed from the scaffold, were placed atop a pallet to be removed from the worksite. � (Tr. 174; Ex. 1, p. 4 at �G�).

Mr. Roney had previously worked for other
construction companies, including Best Construction as a manager, Innovative
Masonry, and J&S Concrete. � He owned
Innovative Masonry at one time and J&S Concrete. � He said Best Construction was owned by Lydia
Ferrerra and his wife, Diana Roney. � He
said Best Construction had been closed for quite a few years. � (Tr. 182-84). �

Mr. Roney had an OSH 30-hour training card, a
scaffold erectors card, and scaffold users card. � (Tr. 154). �
Foreman Martins was responsible for running the project on a day-to-day
basis. � Mr. Roney testified that Foreman
Martins was OSHA trained and certified. �
(Tr. 155). � Foreman Martins was
the �competent person� [17]
and certified erector for the worksite. �
(Tr. 46, 80-81, 158). � Mr. Roney
believed most of E&N�s employees were OSHA trained. � (Tr. 154-55).

Mr. Roney testified that E&N received the
OSHA citations because he was the project manager. � (Tr. 175). �
Thereafter, he spoke to several OSHA personnel, including the Area
Director and AAD Flynn. �� He said AAD
Flynn told him because of his [Roney�s] association with other companies where
there were other OSHA violations, the company he was now working for as an
employee was �going to pay the penalty.� �
Mr. Roney accused AAD Flynn of �discriminating against� him, abusing his
power as a government official, and inaccurately stating he owned companies
when he did not. [18] � (Tr. 177-80). �

According to Mr.
Roney, a site-specific safety plan had been required as a part of E&N�s
subcontractor agreement with Avalon Bay Properties. � (Tr. 218). �
Mr. Roney also stated that he thought the employees may have been
disciplined for not using the ladder at the worksite; however, he had no
records with him to support this. [19] � (Tr. 184-85). �

AAD Brian Flynn

AAD Flynn�s testimony focused on the basis
for the proposed penalties. � He applied no
reductions to the $7,000 per item statutory maximum because of his history with
Shawn Roney. � (Tr. 106-07, 120). �

AAD Flynn did not know who owned E&N
Construction. � (Tr. 124-25). � AAD Flynn stated it did not matter whether
Mr. Roney was an owner; the fact that Mr. Roney was in a management role and
was the company representative that contacted OSHA was important. � (Tr. 139). �
AAD Flynn had interacted with Mr. Roney five or six times when Mr. Roney
was affiliated with Best Construction. �
(Tr. 107, 117). � AAD Flynn stated
that Mr. Roney had been the management representative at Best Construction from
2005 to 2011. � (Tr. 111-12) . �

AAD Flynn believed all his conversations with
Mr. Roney focused on the penalty amount, not employee safety. � (Tr. 109). �
He decided a larger penalty was necessary to provide a deterrent effect
and promote compliance with requirements for worker safety. � (Tr. 140).

AAD Flynn compiled a history of OSHA inspections [20]
for multiple companies that he believed Mr. Roney had either been a
representative or owner. � (Tr. 107, 145). � These companies included Salem Masonry,
Dunbar Construction Services, Best Construction, and Innovative Masonry. � (Tr. 122). �
AAD Flynn made the connection between the companies through Google
searches, not through the New Jersey Secretary of State�s website. � (Tr. 122). � He admitted E&N�s address did not match
the address of any of these companies. �
(Tr. 124). � AAD Flynn referred to
the OSHA citation history of these companies as a basis for his penalty assessment
for E&N�s violations. � (Tr.
113-14). �

Over the course of several years, AAD Flynn
had formed the opinion that Best Construction and Salem Masonry Company were
interchangeable names for the same employer. (Tr. 113). � � However,
he had no information that Mr. Roney had an ownership interest in any of the
companies. � (Tr. 123-24). � AAD Flynn found Mr. Roney�s wife was the
owner of Salem Masonry Company, Best Construction, and Dunbar Construction
Services. � (Tr. 123). �

Further, AAD Flynn believed E&N had not
been cooperative during the inspection and had not made efforts to minimize the
harm to employees at the site. � (Tr. 210-11). �

THE CITATIONS

Secretary�s
Burden of Proof

To establish a
violation of an OSHA standard, the Secretary must show by a preponderance of
the evidence that: � (1) the cited
standard applies; (2) the terms of the standard were violated; (3) the employer
knew, or with the exercise of reasonable diligence could have known, of the
violative condition; and (4) one or more employees had access to the cited
condition. � Astra Pharm. Prods ., 9
BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff�d in relevant part, 681
F.2d 69 (1st Cir. 1982). �

Citation 1, Item 1

The Secretary
cited Respondent for a serious violation of 29 C.F.R. � 1926.451(b)(1), which
requires:

(b) Scaffold
platform construction. (1) Each platform on all working levels of scaffolds shall be fully planked or decked
between the front uprights and the guardrail supports as follows:

(i) Each
platform unit (e.g., scaffold plank, fabricated plank, fabricated deck, or
fabricated platform) shall be installed so that the space between adjacent
units and the space between the platform and the uprights is no more than 1
inch (2.5 cm) wide, except where the employer can demonstrate that a wider
space is necessary (for example, to fit around uprights when side brackets are
used to extend the width of the platform).

(ii) Where
the employer makes the demonstration provided for in paragraph (b)(1)(i) of
this section, the platform shall be planked or decked as fully as possible and
the remaining open space between the platform and the uprights shall not exceed
9 � inches (24.1 cm).

Exception to paragraph
(b)(1): The requirement in paragraph (b)(1) to provide full planking or decking
does not apply to platforms used solely as walkways or solely by employees performing scaffold erection or dismantling . In
these situations, only the planking that the employer establishes is necessary
to provide safe working conditions is required. � (emphasis added).

The Secretary
alleged that on or about April 18, 2015, employees were exposed to falls of 13
feet, 4 inches to the ground below because the working levels of the tubular
welded frame scaffolds were not fully planked or decked between the scaffold�s uprights
and the guardrail supports. � The
Secretary asserts that the violation �pertains to those workers at the top
tiers of the scaffold thirteen feet four inches above the ground, who were
clearly working and not dismantling.� � (Citation
and Complaint; S. Br. 5).

The standard is applicable

E&N asserts
the standard�s exception applies because employees were dismantling the
scaffold. � (R. Br. 4). � The Secretary asserts that employees were
working on the brick veneer from the scaffold platform, not engaged in
dismantling work. � (S. Br. 4-5, 10-11, 13).

An
employer seeking the exception to a standard�s requirements has the burden to
show the exception is applicable. � Kaspar
Wire Works, Inc. , 18 BNA OSHC 2178, 2194 (No. 90-2775, 2000), aff'd ,
268 F.3d 1123 (D.C. Cir. 2001) (citations omitted). � To qualify for the exception in the
cited standard, employees working on the scaffold must be �solely. . . � performing scaffold erection or dismantling�
work. � 29 C.F.R. � 1926.451(b)(1). �

The Commission
squarely addressed this issue in Smoot
Constr. , 21 BNA OSHC 1555 (No. 05-0652, 2006). � There , employees
were erecting the scaffold while other employees were on the scaffold constructing
the building�s formwork. � Id. at 1556. � The Commission found that �additional work
done or performed while the employees are on the scaffold renders the exception
inapplicable.� � Id. � The dismantling
exception did not apply because other work was being done from the scaffold.

Similarly
here, the Court finds Respondent does not qualify for the dismantling exception
to the standard�s requirements. � There
is no dispute that employees on the scaffold�s second-tier platform were not
solely dismantling the scaffold, they were engaged in the finishing rub-down
work on the brick veneer of two columns. �
(Tr. 78, 83, 160-63). � Respondent admitted
�the only work being performed at the time of the inspection was the
dismantling of the scaffolding and the concomitant rub down work being
performed.� � (R. Br. 4). � Based on photographs and testimony, the Court
finds that one employee, Mr. Cedillo, on the scaffold was engaged in
dismantling work. � Mr. Cedillo was
photographed removing a plank from the scaffold�s first level [21]
as Mr. Pinheiro worked on the brick veneer from the second level. [22] � (Tr. 193; Ex. 1, pp. � 2-3, 5, 8 at �E�, 22-23). � Photographs also show at least three other employees
doing rub-down or brushing work on the brick veneer from the scaffold�s second-tier
platform near where planks were missing from the platform. � (Tr.
29-34, 55-66, 83, 192-93; Ex. 1, pp. 2 at �D�, 3 at �G�, 5 at �D�, 8 at
�C�, [unidentified by name] wearing red hat; 7 at �E� [unidentified by name]
wearing yellowish shirt; 10 at �C�, 17 at �B�, 18 at �B�, [unidentified by
name] wearing yellow hat and blue in color shirt).

The Court finds
Respondent does not qualify for the exception because employees were engaged in
rub-down work from the scaffold�s platform. �
Thus, the requirements of the cited standard apply

Employees were exposed to the hazard

Here, employees
were actually exposed to the hazard from the inadequately planked
platforms. � See Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2004 n. 4 (No.
504, 1976) (finding that if employee was actually in the zone of danger and
exposed to the hazardous condition, the element of exposure is established).

CO Lloyd testified
that four or five employees were exposed to the hazard. � (Tr. 27-38; S. Br. 4). � The photographs at Ex. 1, pp. 2-3 at �A�
[Pinheiro], � 5 at �B� [Pinheiro], 7 at
�D� [Pinheiro], 8 at �A� [Pinheiro], 10 at �B� [Pinheiro], 11-13 at �A� [Mr.
Pinheiro], 18-20 at �A� [Pinheiro], 21 at �B� [Pinheiro], 22-24 at �A�
[Pinheiro], all show Mr. Pinheiro working on the second-tier platform in areas
where planks are missing. � Photographs also
show that at least three additional unidentified employees were working while
standing on the second platform tiers near where planks are missing. � (Tr. 34; Ex. 1, pp. 2 at �D�, 3 at �G�, 5 at
�D�, 7 at �E� wearing yellowish shirt, 8 at �C�, wearing red hat, 10 at �C�, 17
at �B�, 18 at �B�, wearing yellow hat and blue in color shirt). � The Court finds at least four employees, including
Mr. Pinheiro, were working from scaffold platforms that were not fully
planked. � Employee exposure is proved.

The standard was violated

Respondent argues the
scaffold platforms cannot be fully planked while employees complete the
rub-down work on the bricks�the work can only be done while the scaffold is
being dismantled. � (Tr. 160; R. Br. 4,
6). �

The Court rejects
Respondent�s argument for three reasons. �
First, other than a bare assertion that a scaffold cannot be fully
planked during rub-down work, Respondent provided no persuasive evidence about what
platform configuration is or is not possible when doing rub-down work. � Second, the brick veneer was next to the
scaffold�s inner perimeter; planks were missing from the platform�s outer
perimeter, which was not next to the face of the brick veneer. � (Tr.
27-31; Ex. 1, pp. 3, at �B�-�D�, 4 at �B�). �
Third, it appears Respondent is asserting an infeasibility defense,
which is not supported.

Infeasibility is
an affirmative defense for which the employer has the burden of proof. � See
Hamilton Fixture , 16 BNA OSHC 1073, 1077 (No. 88-1720, 1993) aff�d , 28 F.3d 1213 (6 th Cir.
1994). � Commission Rule of Procedure
34(b)(3) requires an employer to raise an affirmative defense in its answer.
See Armstrong Steel Erectors, Inc. , 17 BNA OSHC 1385, 1387
(No. 92-262, 1995) (citations omitted). �
An employer may be able to assert the defense later if it can show the
issue has been tried by the consent of both parties. � Id.

To succeed in
an infeasibility defense,
an employer must �prove that (1) the means of compliance prescribed by the
applicable standard would have been infeasible under the circumstances in that (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 alternative method of protection was
used, or (b) there was no feasible alternative means of protection.� Id.

Here, there was no
attempt by Respondent to assert or support this possible defense. � Respondent did not assert the affirmative
defense of infeasibility in its answer or any subsequent pleading. � Further, the Court finds the defense of infeasibility was not tried by
the parties. � Finally, the Court finds
that Respondent did not provide sufficient evidence to support an infeasibility
defense. � Thus, the Court finds
Respondent�s assertion the rub-down work could not be done with a fully-planked
scaffold is unsupported and has no merit.

�� At
least four employees worked from the scaffold�s second-tier platforms doing
rub-down work. � The Secretary identified several
areas on the scaffold where the platforms were not fully planked. � These areas were along the outer perimeter of
the scaffold. � CO Lloyd stated that an
employee could �inadvertently back up or step off the planks� and fall through
the gaps created where planks were missing from the platforms. � (Tr. 31-33; Ex. 1, pp. 3 at �B�, �C� &
�D�, 4 at �B�, 7 at �A� & �B�; S. Br. 4). �
Photographs taken by the CO show planks were missing from the second-tier
platforms where employees stood while working on the brick veneer. � (Ex. 1, pp. 3 at �B�-�D�, 4 at �B�). � Respondent did not rebut the Secretary�s
assertion that planks were missing there.

The Court finds
the scaffolds were not fully planked and Respondent did not comply with the
requirements of the cited standard.

Knowledge

The Secretary has
the burden to establish the employer either knew, or with the exercise of
reasonable diligence could have known, of the violative condition. � Contour Erection & Siding Syst., Inc. ,
22 BNA OSHC 1072, 1073 (No. 06-0792, 2007) ( Contour ). � The employer�s knowledge is directed to the
physical condition that constitutes a violation. � Phoenix
Roofing, Inc. , 17 BNA OSHC at 1079-80. �
It is not necessary to show that the employer knew or understood the
condition was hazardous. � Id. �
Knowledge is imputed to the employer �through its supervisory
employee.� � Am. Eng�g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359,
2012) (citations omitted) (AEDC).

The Secretary
asserts Respondent had actual knowledge of the violative condition through its
foreman, Manny Martins. [23] � (S. Br. 4). �
When the CO arrived at the worksite he saw Foreman Martins watching the
employees. � CO Lloyd testified that Foreman
Martins was standing at the worksite �looking at scaffold defects and fall
protection issues� and did nothing to correct them. � (Tr. 23, 32-33, 43, 46, 48-49). � The CO observed and photographed employees
working from the scaffold�s platforms. �
(Tr. 33-34; Ex. 1). � One photograph
shows Foreman Martins watching employees as they worked from the inadequately
planked second-tier scaffold. � (Tr. 32-33,
43; Ex. 1, p. 10 at �A�). � The Court
finds actual knowledge of the violative condition is established.

�� The
Court also finds constructive knowledge is established. � Constructive knowledge can be established by
showing the employer �with the exercise of reasonable
diligence could have known of the violative condition.� � KS
Energy Servs., Inc. , 22 BNA OSHC 1261, 1265 (No. 06-1416, 2008) (citations
omitted) ( KS Energy ). � �Whether an employer was
reasonably diligent involves consideration of several factors, including an
employer's obligation to inspect the work area, anticipate hazards to which
employees may be exposed, and take measures to prevent the occurrence of
violations.� � Shaw Areva Mox Servs., LLC , 23 BNA OSHC 1821, 1825 (No. 09-1284,
2012) (citations omitted) ( Shaw Areva ). � In evaluating these factors,
the Commission has considered �how long the violative condition [ ] had been in
existence, and whether the condition was readily apparent.� � Id .

There is insufficient
evidence in the record to show that Respondent took adequate steps to inspect
the work area in the hours before the inspection, anticipate hazards, or make
an effort to prevent employees from working from inadequately planked second-tier
platforms during the early afternoon of April 18, 2015. � The foreman was observing employees at work
at the time of the inspection; but there is no evidence that he took any steps
to ensure the scaffold was fully planked at the second-tier. � Respondent did not demonstrate reasonable
diligence.

Constructive
knowledge can also �be found where a supervisory employee was in close
proximity to a readily apparent violation.� �
KS Energy , 22 BNA OSHC at 1265-66. � As the CO arrived onsite, he saw Foreman
Martins looking toward the scaffold. �
(Tr. 23, 32-33, 43). � The CO
photographed the foreman watching the employees working on the inadequately
planked platform. � (Tr. 32-33; Ex. 1, p. 10
at �A�). � Manny Martins was in the area
where employees worked from the scaffold and the lack of planking on the
scaffold was easily observed. � Because Foreman
Martins was near the scaffold and the violative condition was readily apparent,
the Court finds that with reasonable diligence Foreman Martins would have known
the scaffold platforms were not fully planked.

Thus,
the Court finds Respondent had constructive knowledge.

With respect to
imputation of the foreman�s knowledge, there is no dispute that Manny Martins
was Respondent�s foreman at the worksite. �
Under Commission precedent Mr. Martins� knowledge as foreman is
imputable to the Respondent. � See AEDC, 23 BNA OSHC at 2095 (knowledge
is imputed through an employer�s supervisory employee). �

Nonetheless,
this case arises in the Third Circuit, which does not follow the Commission�s
precedent for imputing knowledge to the employer from a foreman or supervisor. � When the law
of the circuit where a decision may be appealed differs from Commission
precedent, the Commission applies the law of that circuit. See,
e.g., Deep S. Crane &
Rigging Co ., 23 BNA OSHC 2099, 2102 (No. 09-0294, 2012) ; Kerns Bros.
Tree Serv. , 18 BNA OSHC 2064, 2067-71 (No. 96-1719, 2000).

�� Third Circuit precedent requires the
Commission to prove foreseeability [24]
in order to impute knowledge from a supervisor who had knowledge of or participates
in the violative conduct. � Pa. Power
& Light Co v. OSHRC , 737 F.2d 350, 357-58 (3rd Cir. 1984) ( PP&L ). � The Third Circuit requires the burden
of proof for the knowledge element to remain with the Secretary; however, it
does allow consideration of whether the employer has �undertaken reasonable safety
precautions� when evaluating employer knowledge. � Id. �

The Commission set forth three factors to determine
whether a violation was foreseeable under Third Circuit precedent: � (1) whether supervisors were adequately
trained in safety matters, (2) whether reasonable steps were taken to discover
safety violations committed by supervisors, and (3) whether the company had a
consistently enforced safety policy. � Kerns
Bros. Tree Serv. , 18 BNA OSHC at 2068-71 . �

Respondent�s sole
evidence of a safety program is Mr. Roney�s testimony. [25] � (Tr. 154-55, 185, 218). � Mr. Roney testified that Foreman Martins was
OSHA trained and certified. [26] � (Tr. 155). �
Mr. Roney also stated that he thought employees may have been
disciplined for not using the ladder at the worksite; however, no disciplinary
records or documentation were provided for the record. � (Tr. 184-86). �
According to Mr. Roney, a site-specific safety plan had been required as
a part of E&N�s subcontractor agreement. �
(Tr. 218). � Nonetheless, Respondent
did not submit documentation to support Mr. Roney�s general testimony that
E&N had a safety program, that its employees were trained in safety matters,
or that employees had been disciplined for not using the ladder to access the
scaffold.

Other
than Mr. Roney�s unsupported statement, there is no evidence in the record to
show that Foreman Martins was ever trained in safety matters, whether
Respondent had a consistently enforced safety policy, or that Respondent took
any steps to determine if its supervisors were complying and enforcing safety
rules. � Respondent presented no documentary
evidence of work rules or safety practices it utilizes at worksites. ��

Respondent is
uniquely able to present information and documentation about its safety
program. � See generally, N. Landing Line Constr. Co., 19 BNA OSHC 1465, 1473
(No. 96-0721, 2001) (finding the safety program is within the control of the
employer and any �evidentiary deficiencies� are the responsibility of the
employer once the Secretary has requested the information).

Because there is insufficient
evidence that Respondent provided �reasonable safety precautions� for its
worksite through oversight of its supervisors, training of its supervisors, or
a consistently enforced safety policy, the Court finds it was foreseeable Foreman
Martins would allow the violative condition to occur at the worksite. � Thus, Foreman Martins� knowledge can be
imputed to Respondent.

�� The
Court finds the cited standard applies, employees were exposed, its terms were
violated, and Respondent had the requisite knowledge. � Citation 1, item 1 is affirmed.

Citation 1, Item 2

The Secretary
cited Respondent for a serious violation of 29 C.F.R. � 1926.451(e)(1), which
requires:

(e) Access . This paragraph applies to scaffold access for all
employees. Access requirements for
employees erecting or dismantling supported scaffolds are specifically
addressed in paragraph (e)(9) of this section. [27]

(1) When scaffold platforms are
more than 2 feet (0.6 m) above or below a point of access, portable ladders,
hook-on ladders, attachable ladders, stair towers (scaffold stairways/towers),
stairway-type ladders (such as ladder stands), ramps, walkways, integral
prefabricated scaffold access, or direct access from another scaffold,
structure, personnel hoist, or similar surface shall be used. Crossbraces shall not be used as a means of
access. � (emphasis added). �

The Secretary
alleged that on or about April 18, 2015, �[e]mployees were exposed to falls up
to 13 feet, 4 inches to the ground below as cross-braces and scaffold frames
not made for climbing were used for access to the scaffold platforms.� � (Citation and Complaint) . �

Respondent asserts
that a ladder was provided and available for use by employees. � (Tr. 146-47; R. Br. 4, 7). � Further, Respondent asserts that employees
involved in dismantling the scaffold were allowed to use the scaffold�s frame
for access in lieu of the ladder. � (Tr.
147).

The cited standard is applicable

Respondent asserts
the cited standard does not apply because its employees were dismantling the
scaffold. [28] � (R. Br. 6). �
Respondent argues the cited standard�s access
requirements do not apply to employees dismantling the scaffold; instead the
requirements at 29 C.F.R. � � 1926.451(e)(9)
are applicable . [29] � As discussed above, most
of the employees working from the scaffold were not engaged in dismantling work. � The evidence shows that only one employee, Mr.
Cedillo, was actually engaged in dismantling work at the time of the inspection. � (Ex. 1, pp. 3, 5, 8 at �E�). �

Thus, the Court finds the cited standard is applicable.

Employees were exposed to the hazard

�� The
Secretary asserts the photographs show �[a]pproximately four of Respondent�s � employees improperly� using the scaffold frame
instead of the ladder for access. � (S.
Br. 6). � However, a review of the
photographs shows just three employees climbing the sides of the scaffold
frame. � Mr. Pinheiro is shown climbing
the side of the scaffold frame in two of the same photographs. � (Tr. 39- 42, 45; Ex. 1, pp. 4 at �C�, 6 at
�B�). � A second unidentified employee is
shown climbing the side of the scaffold frame in two of the same photographs. � (Tr. 39-41; Ex. 1, � pp. 3 at �E�, 5 at �A�). � Mr. Cedillo is also shown climbing the side
of the scaffold frame in the photograph at Ex. 1, p. 7 at �C�. � (Tr. 42-45; Ex. 1, p. 7 at �C�). � � Respondent does not dispute that its �employees
may have been climbing up and down on the scaffolding itself� and that its
�workers may have been climbing in the scaffolding.� � (R. Br. 4, Proposed Finding of Fact #31, R.
Br. 7).

As discussed
above, only Mr. Cedillo was engaged in dismantling work on the scaffold. �� The other two employees were not dismantling
the scaffold. � Mr. Pinheiro was doing
rub-down work on the bricks from the scaffold�s platform. � (Ex. 1, pp. 2-3 at �A�, 5 at �B�, 7 at �D�, 8
at �A�, 10 at �B�, 11-13 at �A�, 18-20 at �A�, 21 at �B�, 22-24 at �A�). � The Court finds the other unidentified employee
shown climbing the scaffold frame was also not engaged in dismantling work. � There is also insufficient evidence in the
record showing that any competent person,
including Foreman Martins, decided what the appropriate means of access for
scaffold erectors and dismantlers was at the worksite, based on the specific
site conditions of April 18, 2015. � 29
C.F.R. � 1926.451e(9)(iv) also states that cross-braces on tubular welded frame
scaffolds shall not be used as a means of access or egress during the
dismantling of supported scaffolds . � Thus, the Court finds that no dismantling
exception to the cited standard applied to Mr. Cedillo at the time of the OSHA
inspection. � Consequently, the Court
finds that Messrs. Cedillo, Pinheiro, and the unidentified employee were
subject to the requirements of the cited standard and exposed to the
hazard. � The Secretary has proved
exposure for the cited standard.

The standard was violated

Respondent also asserts
it did not violate the requirements of the standard because it provided a
ladder. � (Tr. 168; R. Br. 4, 7). � The Secretary does not dispute that a ladder
was present; instead, the Secretary asserts employees used the scaffold�s frame
instead of the ladder. � (Tr. 88).

Respondent�s
assertion the cited standard simply requires the employer to provide a ladder is
incorrect. � Respondent mischaracterizes
the cited standard by asserting that �[t]he violation that was cited was with
regard to the ladder access.� � (Tr. 168;
R. Br. 7). � The plain language of the
cited standard states that a safe means of access, such as a ladder, �shall be
used.� � 29 C.F.R. � 1926.451(e)(1). � It further states that �[c]rossbraces shall
not be used as a means of access.� � Id. � Respondent�s assertion that the cited standard
only requires the ladder to be present is rejected.

The CO agreed the
ladder could have been used to access the scaffold; however, he saw workers
climbing the scaffold frame instead of using the ladder. � (Tr. 88). � He testified that while talking with Foreman
Martins, he saw �a worker climbing down the frame of the scaffold.� � CO Lloyd said the scaffold�s side frames �are
not meant for climbing.� � (Tr. 39). � The photographic evidence supports the CO�s
testimony. � As discussed above, three
employees, including Messrs. Pinheiro and Cedillo, used the scaffold�s frame as
access instead of using the ladder. � (Tr.
39-45; Ex. 1, pp. 3 at �E�, 4 at �C�, 7 at �C�). �

The Court finds
the requirements of the cited standard were violated. [30] �

Knowledge

�� The
Secretary must establish the employer knew, or with reasonable diligence, could
have known of the violative condition. � Contour, 22 BNA OSHC at 1073. � � Knowledge
is imputed to an employer through a supervisory employee. � AEDC, 23
BNA OSHC at 2095. �

The CO observed
and photographed Foreman Martins watching employees work from the scaffold. � (Tr. 33-44, 55; Ex. 10 at �A�). � Employees were climbing the sides of the scaffold
frame in direct view of the foreman. �
(Tr. 39-44; Ex. 1, pp. 3 at �E�, 4 at �C�). �

� CO Lloyd testified that Mr. Martins �was right
there looking at this.� � (Tr. 43). � The Court finds Foreman Martins had actual
knowledge employees were climbing the sides of the scaffold frames for access
instead of using the ladder. �

�� Constructive
knowledge is also established. � Constructive
knowledge can be shown where the supervisor could have known of the violative
condition through reasonable diligence or where the condition was readily
apparent. � Shaw Areva , 23 BNA OSHC at 1825. �
There is insufficient evidence in the record to show that Respondent
took adequate steps to inspect the work area in the hours before the inspection,
anticipate hazards, or make an effort to ensure employees used a ladder for
access during the early afternoon of April 18, 2015. � There is no evidence the foreman attempted to
stop or reprimand employees that were climbing the scaffold frame instead of
using the ladder. � Respondent did not
demonstrate reasonable diligence. � See Id.
(reasonable diligence by an employer includes work area inspection,
anticipation of hazards, and actions to prevent violations). �

As with item 1
above, it was also foreseeable that Foreman Martins would not prevent the
occurrence of the violative condition due to Respondent�s lack of training for,
or oversight of, its supervisors. � See PP&L,
737 F.2d at 357-58 (Third Circuit requires foreseeability to impute
supervisor�s knowledge). � Further,
Mr. Roney�s testimony that it was not practical to keep employees from climbing
the scaffold, demonstrates a general inattention to promoting safety compliance. � (Tr. 167).

The Court finds
both actual and constructive knowledge is properly imputed to Respondent
through Foreman Martins, thus, the knowledge element is proved. ��

The Court finds
the cited standard applies, employees were exposed, its terms were violated, and
Respondent had the requisite knowledge. �
Citation 1, item 2 is affirmed.

Citation 1, Item 3

The Secretary
cited Respondent for a serious violation of 29 C.F.R. � 1926.451(f)(3), which
requires:

(f) Use . � . . . �
(3) Scaffolds and scaffold components shall be inspected for visible
defects by a competent person before each work shift, and after any occurrence
which could affect a scaffold's structural integrity.

The Secretary
alleged that on or about April 18, 2015, �[m]asonry employees were exposed to
injury from falls due to: lack of scaffold fall protection and proper planking,
lack of suitable access to platforms and from scaffold collapse as the
competent person had not inspected site scaffolds for visible defects prior to
work beginning on April 18th.� � (Citation
and Complaint; Tr. 49).

The standard is applicable

There is no
question that a scaffold was in use at the worksite and Respondent was
responsible for insuring that a competent person had inspected the scaffold for
visible defects before the April 18, 2015 work shift. � The Court finds the standard is applicable.

Employees were exposed to the hazard

�� Employees
worked from the scaffold after the start of the work shift on April 18, 2015. � CO Lloyd counted 12 employees at the job
site. � (Tr. 52, 97-98). � The element of employee exposure to the
hazard would be proved provided a competent person did not inspect the
scaffolding and scaffolding components at the start of the April 18, 2015 work
shift . � The Secretary failed to prove that an
inspection was not performed by a competent person at the start of the April
18, 2015 work shift. � The Secretary has
failed to prove that any employees were exposed to the hazard. �

The standard was not violated

�� The
Secretary�s sole evidence that the scaffold had not been inspected the morning
of April 18, 2015 by a competent person is the scaffold�s condition when the CO
arrived at about 2:00 p.m. [31] � The Secretary asserts E&N�s �foreman could
not have performed a competent inspection and allow[ed] employees to work
despite the obvious and visible defects of the scaffold.� � (S. Br. 9). �
CO Lloyd testified that Foreman Martins did not provide an �answer� to
his questions, including whether or not he was aware that the scaffolding and
scaffolding components were not inspected that morning by a competent
person. � (Tr. 52-53). � The Secretary relies solely on the scaffold�s
condition in the afternoon to presume and speculate that an inspection had not
been performed that morning. � More is
required to prove that the standard was violated. � The scaffold�s condition that afternoon is
not proof of whether it had been inspected prior to the work shift that
morning. � Whether an inspection occurred
must be independently determined. �

�� Mr. Roney testified that it was the practice
and procedure of E&N�s on-site foreman to inspect the scaffolding at the
beginning of each workday to make sure that it was in compliance with OSHA
standards. � (Tr. 169). � CO Lloyd testified that Foreman Martins told
him during the inspection �that he was the competent person, you know, for
scaffolding and he understood what that meant.� �
(Tr. 46-48, 80-81). � E&N
asserts the CO was not present the morning of April 18, 2015, so he did not
know the scaffold�s condition at the start of the work shift. � (R. Br. 6-7). �
CO Lloyd agreed that he had �no knowledge of what the foreman inspected
or didn�t inspect or what he saw and what he didn�t see that morning?� � (Tr. 89). �

The Court finds
the Secretary�s evidence does not support his assertion the scaffold had not
been inspected by a competent person before the April 18, 2015 work shift. � Violation of the cited standard has not been
proved. ��

Knowledge

�� The
Secretary must establish the employer knew, or with reasonable diligence, could
have known of the violative condition. � Contour, 22 BNA OSHC at 1073. � Knowledge may be imputed to an employer
through a supervisory employee. � AEDC, 23 BNA OSHC at 2095. � � Complainant has not shown that E&N knew,
or with reasonable diligence, could have known that Foreman Martins had not
inspected the scaffolding before the April 18, 2015 work shift began. � It was E&N�s practice and procedure for
its on-site foreman to inspect the scaffolding at the beginning of each workday
to make sure that it was in compliance with OSHA standards. � There is insufficient evidence showing that
E&N deviated from its usual practice the morning of April 18, 2015. � Actual or constructive knowledge has not been
proved. �

The Court finds
the cited standard applies. � However, the
Secretary did not prove the cited standard was violated, employees were
actually exposed to the hazard, or that E&N had knowledge of the alleged
violation. �

Citation 1, item 3
is vacated.

Citation 1, Item 4

The Secretary
cited Respondent for a serious violation of 29 C.F.R. � 1926.451(g)(1)(vii), which
requires:

(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 . � (emphasis added.)

. . . (vii) For 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. �

(2) Effective
September 2, 1997, the employer shall have a competent person determine the
feasibility and safety of providing fall protection for employees erecting or
dismantling supported scaffolds. Employers are required to provide fall
protection for employees erecting or dismantling supported scaffolds where the
installation and use of such protection is feasible and does not create a
greater hazard.

The
Secretary alleged that �[m]asonry employees working on the tubular welded frame
scaffolding were exposed to falls of up to 13 feet 4 inches to the ground below
as fall protection in the form of guardrails or personal fall arrest systems
were not being used.� � (Citation and Complaint) .

The standard is applicable

The Respondent
asserts the fall protection requirements do not apply because the scaffold was
being dismantled. � (R. Br. 6). � As discussed above in item 1, only one
employee, Mr. Cedillo, was engaged in dismantling work. � At least four other employees working on the
scaffold�s second-tier, who were not engaged in dismantling activities, were
subject to the fall protection requirements in the cited standard. �

The scaffold in
use was a tubular welded type scaffold, thus the requirements at 29 C.F.R. �
1926.451(g)(1)(vii) are applicable because it is not one of the scaffold types
specified at paragraphs (g)(1)(i) through (g)(1)(vi). �

The
Court finds the cited standard applies. �

Employees were exposed to the hazard

Respondent asserts
that the cited standard does not apply because the scaffolding was being
dismantled at the time of OSHA�s inspection. �
(R. Br. 6). � Mr. Roney testified
that Foreman Martins must have decided to not use fall protection during the
dismantling of the scaffold. � (Tr.
163-64, 217). � Foreman Martins did not
testify at the trial and Mr. Roney�s assertion is mere speculation. [32] � The Court has found that only Mr. Cedillo was
engaged in dismantling activities during the inspection. � Although Mr. Roney believed it was not
practical to use fall protection equipment while dismantling the scaffolding,
there is insufficient evidence showing that Foreman Martins determined the
feasibility and safety of providing fall protection for employees dismantling the
scaffolding on April 18, 2015 at the worksite. �
In the absence of any such evidence, E&N was required to provide
fall protection to all its employees either working at the worksite or engaged
in dismantling activities on April 18, 2015. ��

�Exposure to a
violative condition may be established either by showing actual exposure or
that access to the hazard was reasonably predictable.� � Phoenix
Roofing, Inc. , 17 BNA OSHC at 1079. �
Here, there is evidence of actual employee exposure to the hazard. � The CO photographed employees working on the
scaffold�s second-tier platforms, which were 13 feet, 4 inches above the ground,
with no fall protection. [33] � The Secretary asserts that approximately five
employees were exposed to fall hazards. �
The Court agrees with the Secretary and finds four employees, including
Mr. Pinheiro, were doing brick veneer work from the scaffold�s second-tier and
thus exposed to the fall hazard without protection. � (Tr. � 33-34,
56-66; Ex. 1, pp. 2-3 at �A� [Pinheiro], �
5 at �B� [Pinheiro], 7 at �D� [Pinheiro], 8 at �A� [Pinheiro], 10 at �B�
[Pinheiro], 11-13 at �A� [Mr. Pinheiro], 18-20 at �A� [Pinheiro], 21 at �B�
[Pinheiro], 22-24 at �A� [Pinheiro]; 2 at �D�, 3 at �G�, 5 at �D�, 8 at �C�,
[unidentified by name] wearing red hat; 7 at �E� [unidentified by name] wearing
yellowish shirt; 10 at �C�, 17 at �B�, 18 at �B�, [unidentified by name]
wearing yellow hat and blue in color shirt; S. Br. 11). � The Court also finds that Mr. Cedillo was
exposed to the hazard when he was shown standing on the platform�s second-tier
without any fall protection. [34] � (Tr. 37; Ex. 1, pp. 4 at �A�, 6 at �A�). �

The
Court finds employees were exposed to the violative condition.

The standard was violated

The Secretary
asserts that Respondent provided neither guardrails nor personal fall arrest
systems for its exposed employees. �

Mr. Roney
testified that it was not feasible to use a guardrail as fall protection
because the scaffold must be dismantled to reach the brick veneer for the final
rub-down work. � (Tr. 216-17). � However, Mr. Roney did not explain why a
guardrail on the exterior perimeter of the scaffold could not be in place as
the employees worked on the brick veneer wall next to the interior edge of the
scaffold platform. � Further, Respondent
did not provide an adequate explanation why other fall protection, such as a
personal fall arrest system, was not in use.

The standard
requires fall protection for heights above 10 feet when on a scaffold. � The height of the second-tier scaffold
platform employees that worked from was 13 feet 4 inches from the ground. � (Tr. 33-34, 55-56, 87; Ex. 1, p. 2 at �B�). � The Court finds Respondent did not provide
fall protection to at least four employees engaged in brick work over 10 feet
above ground; as well as to Mr. Cedillo, and thus the cited standard was
violated. � (Tr. 205).

Knowledge

The Secretary must
establish the employer knew, or with reasonable diligence, could have known of
the violative condition. � Contour, 22 BNA OSHC at 1073. � Knowledge is imputed to an employer through a
supervisory employee. � AEDC, 23 BNA OSHC at 2095. �

Foreman Martins watched
employees working from the second-tier platforms of the scaffold above 10 feet
without any kind of fall protection. �
(Tr. 43-44, 55; Ex. 1, p. 10 at �A�). � The Court finds Foreman Martins had actual
knowledge employees were working from the second-tier of the scaffold without
fall protection. �

There is no
evidence in the record that Respondent took adequate steps to inspect the work
area before the OSHA inspection, anticipate hazards, or make an effort to
ensure fall protection was used by the employees at the worksite during the
early afternoon of April 18, 2015. � The foreman
was present and observed employees working without fall protection. � There is no evidence the foreman made any
effort to have employees use fall protection on the scaffold. � See
Id. (reasonable diligence by an
employer includes work area inspection, anticipation of hazards, and actions to
prevent violations). �

As with item 1
above, it was also foreseeable that Foreman Martins would not prevent the
occurrence of the violative condition due to the employer�s lack of training or
oversight of its supervisors in safety matters. �
See PP&L, 737 F.2d at 357-58 (Third Circuit requires
foreseeability to impute supervisor�s knowledge). �

The Court finds
both actual and constructive knowledge is properly imputed to Respondent
through Foreman Martins, thus, the knowledge element is proved. ��

The Court finds
the cited standard applies, employees were exposed, its requirements violated,
and Respondent had knowledge of the violative condition. � Citation 1, item 4 is affirmed.

Citation 1, Item 5

The Secretary
cited Respondent for a serious violation of 29 C.F.R. � 1926.452(c)(2), which
requires:

. . .

(2) Frames and panels shall be braced by cross, horizontal, or diagonal braces, or
combination thereof , which secure vertical members together laterally. The
cross braces shall be of such length as will automatically square and align
vertical members so that the erected scaffold is always plumb, level, and
square. All brace connections shall be secured. �� (emphasis added.)

The Secretary
alleged that on or about April 18, 2015, that �[m]asonry employees were exposed
to falls of up to 13 feet 4 inches from scaffold collapse given that one
tubular welded frame scaffold was missing 2 cross braces.� � (Citation and Complaint).

The standard is applicable

Respondent asserts
this requirement does not apply because the scaffold was being dismantled. � (Tr. 146; R. Br. 6). � Respondent asserts the two braces had been in
place earlier that day, but had been removed because the scaffold was being
dismantled. � (R. Br. 5-6). �

However, the
standard does not provide an exception to the removal of a scaffold�s
structural component while employees are still working from the scaffold
platform. [35] �

The
Court finds the standard applies. ��

The standard was violated and an employee
was exposed to the hazard

�� The
CO stated one set of cross-braces (the two missing braces created a single set
of cross-braces) in a bay was missing on one of the scaffolds. � The other scaffold areas were fully
cross-braced. � The photographic evidence
shows the missing set of cross-braces. � (Tr.
68-72, 91-92, 197; Ex. 1, pp. 3 at �H�, 4 at �D� & �F�, 7 at �F�, 8 at �D�). � The photographs also show Mr. Pinheiro
working from the scaffold platform just above the missing set of cross-braces. � (Tr. 29-30, 68-69, 192, 197; Ex. 1, pp. 2 at
�A�, 3 at �A�, 5 at �B�, 8 at �A�, 23 at �A�, 24 at �A�). �

The Court finds the
scaffold was not cross-braced as required by the standard and an employee was
exposed to the hazard.

Knowledge

As discussed
above, Foreman Martins watched employees work from the scaffold with the missing
set of cross-braces. [36] � (Tr. 43-44; Ex. 10 at �A�). � The missing set of cross-braces was readily
apparent and existed under the foreman�s direct observation. � The Court finds the Secretary established that
E&N had either actual and/or constructive knowledge that the set of
cross-braces was missing while Mr. Pinheiro was working directly above on the
second-tier of the scaffolding platform. �
(Ex. 1, pp. 2 at �A�, 3 at �A�, 5 at �B�, 8 at �A�, 23 at �A�, 24 at �A�).

Constructive
knowledge is also established. � There is insufficient
evidence in the record that shows Respondent took adequate steps to inspect the
work area before the OSHA inspection, anticipate hazards, or make an effort to
ensure the cross-braces stayed in place while employees worked from the
scaffold during the early afternoon of April 18, 2015. � The foreman made no effort to keep cross-braces
installed or stop employees working from the non-compliant scaffold. � See
Shaw Areva , 23 BNA OSHC at 1825
(reasonable diligence by an employer includes work area inspection,
anticipation of hazards, and actions to prevent violations). �

As with item 1
above, it was also foreseeable that Foreman Martins would not prevent the
occurrence of the violative condition due to Respondent�s lack of training or adequate
oversight of one of its supervisors in safety matters. � See
PP&L, 737 F.2d at 357-58 (Third
Circuit requires foreseeability to impute supervisor�s knowledge). �

The Court finds
both actual and constructive knowledge is properly imputed to Respondent
through Foreman Martins. � Thus, the
knowledge element is proved. ��

The Court finds
the cited standard applies, employees were exposed, its terms were violated,
and Respondent had knowledge of the violative condition. � Citation 1, item 5 is affirmed.

Serious Characterization

The Secretary classified all cited
violations as serious in nature. � A violation
is classified as serious under section 17(k) of the Act if �there is a substantial
probability that death or serious physical harm could result.� � 29 U.S.C. � 666(k). � See
also Pete
Miller, Inc., 19 BNA OSHC 1257, 1258 (No. 99-0947, 2000) (Serious characterization
requires a finding that �a serious injury is the likely result should an
accident occur�). �

For item 1, the lack of a fully planked
platform created the hazard of a fall up to 13 feet 4 inches to the ground
below. � If a fall occurred, it could
result in serious injury or death. � (Tr.
34-35). � For item 2, the use of the sides
of the scaffold frame for climbing and access instead of a ladder created a
hazard of fall to the ground below. � A
fall could result in serious injury or death. �
(Tr. 42-44). � For item 4, the lack
of fall protection may cause a fall up to 13 feet 4 inches to the ground below,
which could result in serious injury or death. �
(Tr. 65). � For item 5, a missing
cross-brace undermines the structural stability of the scaffold, which could
result in a scaffold collapse. � (Tr.
73). � The resulting fall could result in
serious injury or death. � (Tr. 73).

The Court finds the
serious characterization for each item is appropriate due to the likelihood of
serious injury or death if an accident occurred. �

Penalty Amount

Respondent asserts the
penalty proposed by the Secretary was excessive and the maximum penalty levied
simply because Mr. Roney was E&N�s management contact. � (Tr. 147; R. Br. 7-8). �� The Court agrees.

�Once a citation is contested, the Commission has the sole authority to
assess penalties.� Valdak Corp. , 17 BNA OSHC 1135, 1138 (No.
93-0239, 1995) (citation omitted), aff'd , 73 F.3d 1466 (8th Cir.
1996). � The penalty amount proposed in
the citation is given no deference. � See Hern Iron Works, 16 BNA OSHC 1619,
1621 (No. 88-1962, 1994).

Section
17(j) of the Act requires the Commission to give due consideration to four
criteria in assessing penalties: the size of the employer�s business, the
gravity of the violation, the employer�s good faith, and its prior history of
violations. � Valdak, 17 BNA OSHC at 1138. �

The maximum penalty for
a serious citation is $7,000. [37] � 29 U.S.C. � 666(b). � The Secretary proposed the maximum penalty for
each cited violation. � OSHA assessed the
gravity for each cited violation as high based on a determination of high severity
and greater probability. � (Tr. 35, 44,
53, 66-67, 73). � The CO stated that
violations for fall hazards are typically assessed as high gravity because of
the risk of significant injury. � (Tr.
44). � Good faith was considered but no
discount was provided due to the high severity of the violations. � (Tr. 206-11). �
The Court agrees with the Secretary�s assessments for gravity and good
faith.

E&N had 20
employees. � (Tr. 52, 129). � Generally, an employer of this size receives a
sixty percent penalty reduction. � (Tr.
129-30). � AAD Flynn used his discretion
and chose to not apply the penalty reduction for size. � (Tr. 106-08, 115, 132). � AAD
Flynn also did not adjust the penalty for E&N�s inspection history. � (Tr. 34, 106-08, 115, 130-31). �� E&N was inspected in 2013 where no
citations were issued. [38] � (Tr. 126). �
AAD Flynn stated that a 10% penalty reduction was generally applied when
an employer had a prior inspection resulting in no citations. � (Tr. 135). �
Here, no discount or increase was applied to the proposed
penalty. � (Tr. 130-31). � AAD Flynn admitted a 60% reduction for size
and a 10% reduction for a positive OSHA
inspection history would have been applied but for Mr. Roney�s involvement in
the case. � (Tr. 107-08, 128-131, 138).

AAD Flynn stated that
he had previously dealt with Mr. Roney many times related to OSHA inspections
at other employers. � (Tr. 107, 117). � AAD Flynn admitted he chose to propose the
maximum penalty because of past
interactions when Mr. Roney worked for other companies�not at E&N. � AAD Flynn stated had Mr. Roney not responded
to the OSHA violations on behalf of E&N in this case, �[t]hen it�s likely I
[AAD Flynn] wouldn�t do it�, i.e. not
allow penalty reductions for size and history. � (Tr. 107-08). �
In other words, AAD Flynn did not allow these penalty reductions because
Mr. Roney, an E&N employee at the time, responded to these alleged OSHA
violations. [39] � (Tr. 131-37, 205). � AAD Flynn testified that he had the final say
in recommending the issuance of these violations to E&N along with their
proposed penalties. � (Tr. 128, 131-32).

Several of AAD Flynn�s interactions with Mr. Roney were related to Best
Construction. � (Tr. 107). � Based on his experience, AAD Flynn had formed
the opinion that Best Construction and Salem Masonry Company were
interchangeable names for the same company. � (Tr. 113). �
Using a google search to find other companies connected to Best
Construction, AAD Flynn compiled a list [40]
of approximately 20 OSHA inspections for companies, including Salem
Masonry, Best Construction, Salem Construction, and Dunbar Construction
Services, that he believed Mr. Roney
was an owner or management representative of, many with scaffold violations. [41]
� He testified that he �used these
documents to determine why not to give this company a reduction.� � (Tr. 107-116). � The Court finds that AAD Flynn�s basis of
setting the penalties based solely on a possible relationship of these
companies to Mr. Roney appears to be an attempt to penalize E&N as an alter
ego for Mr. Roney. [42] � The Commission has found that �[p]iercing
the corporate veil [] enables an individual's complete OSH Act violation
history to be taken into account when determining an appropriate penalty.� � Altor,
Inc. , 23 BNA OSHC 1458, (No. 99-0958, 2011). � Regardless,
the Secretary has not argued nor presented evidence that Mr. Roney is an alter
ego of the companies AAD Flynn alleged he was affiliated with, or of E&N. �

The Court finds it was
not proper to consider the OSHA citation history of other unaffiliated employers
where Mr. Roney previously worked when assessing penalties for E&N�s
violations.

AAD Flynn stated that the penalty would have
been $2,800 per violation after the application of a 60% size reduction for a
company with 20 employees. � (Tr. 137-38).
� Further, an additional 10% reduction
would have been applied for positive OSHA inspection history, reducing the
amount even further to $2,520 per item. �
(Tr. 137-38; R. Br. 8).

�� The
Court applies the usual reduction of 60% reduction for the company�s small size
and � 10% for E&N�s prior
citation-free inspection. � When applied to
the statutory maximum of $7,000 per item, this results in a per item penalty amount
of $2,520 for Citation 1, Items 1, 2, 4, and 5. �
Because of the inappropriateness of AAD Flynn not allowing these penalty reductions because Mr. Roney responded to
these alleged OSHA violations on behalf of E&N, the Court is further
reducing the per item penalties for Citation 1, Items 1, 2, 4, and 5, by
an additional 25% resulting in Court assessed per item penalties in the amount
of $1,890 for Citation 1, Items 1, 2, 4, and 5. [43] � The Court assesses a total amount of $7,560
for these four violations.

Findings
of Fact and Conclusions of Law

All findings of
fact and conclusions of law relevant and necessary to a determination of the
contested issues have been made above. � See
Fed. R. Civ. P. 52(a). � All proposed
findings of fact and conclusions of law inconsistent with this decision are
denied.

ORDER

Based
upon the foregoing findings of fact and conclusions of law, it is ORDERED
that:

Citation 1, item
1, alleging a serious violation of 29 C.F.R. � 1926.451(b)(1) is AFFIRMED, and
a penalty of $1,890 is assessed.
Citation 1,
item 2, alleging a serious violation of 29 C.F.R. � 1926.451(e)(1) is AFFIRMED,
and a penalty of $1,890 is assessed.
Citation 1, item
3, alleging a serious violation of 29 C.F.R. � 1926.451(f)(3) is VACATED.

� 4. Citation 1, item 4, alleging a serious
violation of 29 C.F.R. � 1926.451(g)(1)(vii) is AFFIRMED, and a penalty of $1,890
is assessed.

Citation 1,
item 5, alleging a serious violation of 29 C.F.R. � 1926.452(c)(2) is AFFIRMED,
and a penalty of $1,890 is assessed.

/s/ _____

The
Honorable Dennis L. Phillips

U.S.
OSHRC Judge

Dated: � January 16,
2018

Washington,
D.C.

[1] CO Lloyd had been employed at OSHA for more than 15
years at the time of the inspection at issue. �
Before that, he was a safety supervisor at Raytheon Engineers and
Hudson-Bergen Light Rail. � CO Lloyd has a
Bachelor�s degree in chemistry and a Master�s Degree in biology with emphasis
in the medical sciences and public health. �
He testified that he had completed at least 830 OSHA inspections, mainly
construction. � (Tr. 19-20, 74-75). �

[2] AAD
Flynn is the AAD for the Parsippany Area Office. � He has served in that capacity since
2011. � Before that, he served as a safety
and health manager with the United States Postal Service. � (Tr. 104).

[3]
Respondent admitted and stipulated it was engaged in a business affecting
interstate commerce and was an employer employing employees. � Further, Respondent admitted and stipulated it
was engaged in construction masonry work at the worksite. � The record supports these admissions and
stipulations. � (Answer �� I-III; Stip.
No. 3, Jt Pre-Hr�g Stmt, 3-4; Tr. 14).

[4]
�Platform means 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)
Definitions.

[5] The CO had completed a fall protection
inspection of a masonry company called Concrete Systems at the same site
approximately 14 months before, when the Bloomfield Project was at an early
construction stage. � (Tr. 21,
77-78). �

[6] During
cross examination, the CO stated (in response to a question about Foreman Martins�
English language skills) that he did not recall having any problems
understanding or conversing with Foreman Martins. � (Tr. 80)

[7] CO Lloyd
testified that he had previously met Foreman Martins at a Best Construction
Inc. (Best Construction) job site in Norton, New Jersey in March 2014. � (Tr. 23, 32). �

[8] The
Court finds that the photographs at Ex. 1, pp. 2-3, 5, 8, 22-23, are identical,
but varying in scope shown. � The Court
also finds that the photographs at Ex. 1, pp. 4 and 6, are identical. �

[9] The
Court finds that the CO correctly identified the employee at Ex. 1, pp. 4 &
6, at �A�, 7 at �C�, 8 at �E�, as Mr. Cedillo, who is shown wearing a white
shirt. � (Tr. 37, 59, 194). � The Court finds that the CO incorrectly
identified the employee shown wearing a yellowish shirt on the second-tier
platform at Ex. 15, at �A�, as Mr. �
Cedillo. � (Tr. 62). � The worker wearing the yellowish shirt is
otherwise unidentified in the record by name. �
Mr. Cedillo and the unidentified worker wearing the yellowish shirt are
both shown at Ex. 1, p. 7, with Mr. Cedillo at �C� climbing the side of the
scaffold frame and the unidentified worker at �E� working atop the second-tier
platform. �

[10] CO
Lloyd testified that he saw �a large piece of plywood with mortar on it so they
were probably filling in maybe some sections after they had placed the
brick.� � (Tr. 95). �

[11]
Throughout various filings and documents in the record, Mr. Roney�s name is spelled
a variety of ways: � Sean Rooney, Sean
Roney, and Shawn Roney. � Because the
attorneys for the Respondent consistently spell his name as �Shawn Roney� and
the notarized �DECLARATION THAT E&N CONSTRUCTION DOES NOT HAVE ANY PARENT
OR AFFILIATE ENTITIES� that was signed by Mr. Roney, also spells his name as
�Shawn Roney,� the Court uses the spelling of �Shawn Roney.�

[12] Mr.
Roney testified that a mast-climbing scaffold system was �a lot safer and what
it would consist of is two tower units and there�s towers that are tied back
into the building. � And it elevates
up. � It just keeps on moving up the
entire building at a level and it�s all enclosed at the same time.� � (Tr. 156-57).

[13] The
tubular welded frame scaffold was also referred to as a �pipe� scaffold in the
record. � (Tr. 157). � A fabricated frame scaffold (tubular welded
frame scaffold) is defined as �a scaffold consisting of platform(s) supported
on fabricated end frames with integral posts, horizontal bearers, and
intermediate members.� � (29 C.F.R. � 1926.450(b);
Tr. 157-58).

[14] Mr.
Roney �dropped out of high school� at age 14. �
(Tr. 220).

[15] Mr.
Roney opined that E&N�s employees knew not to climb on the scaffold and
doing so �would be more of an employee misconduct.� � (Tr.167-68). �
However, as discussed below, this defense was not raised by Respondent,
thus the Court does not address the substance of possible employee misconduct. ��

[16] To
clarify, Mr. Roney never marked Ex. 1, p. 4, with an �E�. � (Tr. 171-73).

[17]
�Competent person means one who is capable of identifying existing and
predictable hazards in the surroundings or working conditions which are
unsanitary, hazardous, or dangerous to employees, and who has authorization to
take prompt corrective measures to eliminate them.� � 29 C.F.R. �
� 1926.450(b) Definitions.

[18] Mr.
Roney denied ever having any ownership interest in Salem Masonry, Best
Construction, or Dunbar. � (Tr. 179). � In rebuttal, AAD Flynn denied he had any
�personal vendetta� against Mr. Roney. �� He
also denied using any harsh language during his brief informal conference with
Mr. Roney in this matter. � He said he
always gave Mr. Roney �very fair, reasonable, I [AAD Flynn] think generous
settlements in the past.� � (Tr.
200-02). � The Court deals with any
allegations of discrimination and abuse of power in its discussion of the
�Penalty Amount� hereinafter.

[19] Mr.
Roney said he could get paperwork showing he disciplined E&N
employees. � (Tr. 184-85). ��

[20] AAD
Flynn referred to a document marked as Exhibit 2 for identification throughout
his testimony. � Respondent objected to
the admission of this document on the basis of relevancy in that there was no
connection between these companies and E&N. �
(Tr. 141-43). � This document was
not admitted into evidence. � (Tr. 145).

[21] CO
Lloyd testified that �all Scaffold first tiers are approximately six feet to
six feet, six inches� above the ground level. �
(Tr. 194). � CO Lloyd said that the
worker [Mr. Cedillo] shown standing on the first tier bringing the plank down
in the photograph at Ex. 1, p. 8, at �E� was �obviously� engaged in
dismantling. � He said it was �fine� for
Mr. Cedillo to be �dismantling like that� at a level less than 10 feet without
fall protection. � (Tr. 191-94). � He also said, where feasible, fall protection
was required when workers were engaged in dismantling activities at a level
�over ten feet�. � He said that it was
�feasible� for E&N to provide fall protection to its workers at the jobsite
that were engaged in rubbing or brushing down the bricks while standing on the
second-tier platform. � CO Lloyd said that
�nowadays it�s very hard for� an employer to show that it was �infeasible to
use fall protection� given the available fall protection equipment and the
�state of the art fall protection [that is] out there.� �� (Tr. 194, 205). �

[22] The photograph at Ex. 1, p. 8 at �A�, shows Mr.
Pinheiro working on the brick veneer from the scaffold�s second-

tier. � (Tr.192;
Ex. 1, p. 8 at �A�). �

[23] Respondent offered no argument as to whether it had
knowledge of the violative condition.

[24] The
Secretary also asserted the violative condition was foreseeable based on AAD
Flynn�s prior experience with Mr. Roney for citations issued to other
employers. � (S. Br. 14). � This assertion is not supported and
fails. � The Court finds Mr. Roney�s
alleged conduct at prior employers is not relevant to the knowledge analysis in
the instant case. �

[25] During his testimony, AAD Flynn referred to OSHA�s
file and found a safety program for Avalon Bay Properties, but did not see a safety
program with E&N�s name on it. � The
only safety-related documents with E&N�s name were some toolbox talks that
had been submitted to OSHA. � (Tr. 22, 208-09). �

[26] Mr.
Roney also testified that, to the best of his knowledge, most of E&N�s
employees were OSHA trained and certified. �
(Tr. 154). �

[27] 29
C.F.R. � 1926.451e(9)(iv) states: �
Effective September 2, 1997, access for employees erecting or
dismantling supported scaffolds shall be in accordance with the following: � � (iv) Cross
braces on tubular welded frame scaffolds shall not be used as a means of access
or egress . � (emphasis added).

[28] �(9)
Effective September 2, 1997, access for employees erecting or dismantling
supported scaffolds shall be in accordance with the following:

(i) The employer shall provide safe means of access
for each employee erecting or dismantling a scaffold where the provision of
safe access is feasible and does not create a greater hazard. The employer
shall have a competent person determine whether it is feasible or would pose a
greater hazard to provide, and have employees use a safe means of access. This
determination shall be based on site conditions and the type of scaffold being
erected or dismantled�.� � 29 C.F.R. �
1926.451(e)(9).

[29] � Paragraph (e)(9) of the final rule
sets access requirements for employees erecting or dismantling supported
scaffolds. The introductory language
of paragraph (e)(9) requires employers to comply with final paragraphs
(e)(9)(i)-(iv) starting on September 2, 1997. OSHA has delayed implementation
of this paragraph (as well as paragraph (g)(2)) so that affected employers have
sufficient time to develop and implement the necessary measures. In addition,
the delayed implementation allows time for OSHA to complete work on
non-mandatory Appendix B, discussed below, which will provide examples of
considerations that employers complying with paragraphs (e)(9) and (g)(2) would
take into account. Paragraph (e)(9)(i) provides that the means of access for
erectors or dismantlers shall be determined by a competent person, based on
specific site conditions and the type of scaffold being erected. As discussed
in relation to the introductory text of final rule paragraph (e), while the
Agency originally proposed to exempt erectors and dismantlers working on
supported scaffolds from requirements for safe access, careful review of the
record has led OSHA to the conclusion that a competent person is the
appropriate individual to decide what the appropriate means of access for
scaffold erectors and dismantlers is on any particular job, based on specific
site conditions.� � Safety
Standards for Scaffolds Used in the Construction Industry, 61 Fed. Reg. 46026, 46508 (Aug 30, 1996) (to be codified at 29
C.F.R. � 1926).

[30] The
Secretary argues that Respondent may attempt to assert the affirmative defense
of employee misconduct to this citation item, which the Secretary notes was not
raised in Respondent�s answer or other subsequent pleading. � (S. Br. 7-8). �
See L & L Painting Co., Inc., 23
BNA OSHC 1986, 1996 (No. 05-0055, 2012) (Employer �waived the unpreventable
employee misconduct affirmative defense because it failed to raise the defense
in its answer as required by Commission Rule 34(b)(3)�). � Secretary states that allowing this
affirmative defense would be prejudicial to his case and objects to any attempt
Respondent may make to introduce the defense. �
(S. Br. 7-8). � The Secretary is
correct. � Respondent did not raise this
affirmative defense in its answer, subsequent pleadings, or post-hearing
brief. � (R. Br. 4, 7). � Further, during the hearing, in response to
Secretary�s objection on the same issue, Respondent clarified it was not
raising this affirmative defense. � (Tr.
186). � The Court finds Respondent did not
attempt to assert the affirmative defense of employee misconduct to this
citation item and, thus, it is not addressed.

[31] CO
Lloyd testified that Foreman Martins had the training and credentials to serve
as a competent person. � (Tr. 84).

[32] See Lee Builders, Inc. , 2010 WL 5699196,
at *4 (No. 10-1510, December 10, 2010) (ALJ) (citation for failing to provide
fall protection to employees erecting scaffolds affirmed where competent person
did not take the necessary steps to determine whether a fall arrest system was
feasible or created a greater hazard).

[33] CO
Lloyd testified that scaffold fall protection is required above 10 feet. � (Tr. 34).

[34]
These five employees do not include other, unidentified employees shown on the
scaffold�s second-tier, in whole or in part, in photographs who also were not
protected by the use of personal fall arrest systems or guardrail systems; e.g.
Ex. 1, pp. 2 at �C�, p.3 at �F�, p. 4 at �A�, p. 5 at �C�, p. 6 at �A�, p. 8 at
�B�, p. 12 at �B� & �C�, p. 13 at �B� & �C�, p. 16 at �A�, p. 20 at �B�
& �C�, p. 21 at �A�, p. 23 at �B�. ��
There is also insufficient evidence that the employees shown at Ex. 1,
pp. 9, 17, were working on the second-tier of the scaffold.

[35] In the
preamble to the 1996 scaffolding final rule, OSHA noted �cross braces are
designed to provide diagonal stability to the scaffold.� � 61 Fed. Reg. at 46058.

[36] CO
Lloyd testified that he did not know whether or not Foreman Martins was aware
that the set of cross-braces was missing. �
But he did say that he �probably explained that out to him [the
foreman]�, although he did not recall actually pointing that out to him. � (Tr. 73). �

[37] The
Court notes that OSHA�s statutory maximum penalties were increased pursuant to
the Inflation Adjustment Act of 2015, Pub. Law 114-74 � 701, 129 Stat. 559-602
(2015). � OSHA established new penalties
effective August 1, 2016 for violations occurring after November 2, 2015. � 81 Fed. Reg. 43430 (July 1, 2016). � The violation in the instant case occurred
prior to November 2, 2015, thus the statutory maximum of $7,000 applies
here. �

[38] OSHA
issued a proposed citation to E&N following an inspection opened on April
8, 2015 relating to a powered industrial truck violation at an unrelated,
different worksite. � Because this
citation for an alleged violation was not a final order as of April 18, 2015,
it was not considered in the Court�s penalty assessment. � (Tr. 125-26, 130-31, 134-35, 214). � See
Payton Roofing, Inc., No. 16-1161 (consolidated), www.OSHRC.gov/decisions
at *21 (A.L.J. O.S.H.R.C. October 30, 2017) (A prior citation that is not final
cannot be used by the Secretary to impose a 10% increase in the penalty amount
based upon history). � No violations were issued to E&N
after an inspection was conducted by OSHA�s Hasbrouck Heights Area Office in
2013. � (Tr. 126). � AAD Flynn testified that if E&N did not
have a citation that was final issued to it before April 18, 2015, he would
have given E&N a 10% reduction based upon history had Mr. Roney not been
involved in this case. � (Tr. 131).

[39] AAD
Flynn testified:

Judge Phillips: �
And are you saying you considered the size of the company, but you
decided to exercise your discretion and not do a reduction because of Mr.
Roney�s involvement in the matter?

The Witness: �
Yes. � (Tr. 129).

AAD Flynn further testified:

Judge Phillips: �
Okay, so aside from Mr. Roney being involved in this case, take that
out. � Now, would you have given a company
other than E&N, with Mr. Roney not involved somehow, a ten percent
reduction in history because he [it] had no prior final violation?

The Witness: �
Yes. � (Tr. 135).

AAD Flynn further testified during rebuttal:

Q. And I believe you did testify earlier in response
to my question on cross examination that had someone other than Mr. Roney been
the one to contact you, you would have given a reduction, correct?

A. I believe we were speaking in terms of affiliation
so if a company didn�t have Mr. Roney affiliated in any capacity, whether it be
owner, manager, or anything of that nature, yeah, this would be a completely
different case. �

Q. � So the
answer to my question is, yes, this company was treated differently than you
may have treated another company because of Mr. Roney�s involvement, correct?

A. � Of his
affiliation, yes, and his capacity as a manager in the company. � (Tr. 205-06).

[40] AAD
Flynn referred to a summary document he had compiled when making his decision
that Mr. Roney had been affiliated with other companies historically inspected
by OSHA. � (Tr. 107-115). � This document was not admitted into evidence
due to Respondent�s objection that the citation history of other companies was
not relevant to the citations issued to E&N. � (Tr.141-45).

[41] On
cross examination, AAD Flynn admitted that he did not have any personal
knowledge that Mr. Roney had an ownership interest in these companies,
including Salem Masonry, Best Construction, Salem Construction, and Dunbar
Construction Services. � (Tr.
123-24). �

[42] AAD
Flynn testified that he did not know who the owners of E&N are. � (Tr. 124). �
He further testified that it did not matter whether Mr. Roney was only
an employee, and not an owner of E&N, �[t]he fact he was in a managerial
role and the person that was sent to deal with me to speak for the company is
very relevant to determining the appropriateness of the penalty and whether or not
the reduction should have been afforded to him.� � (Tr. 139). �
AAD Flynn admitted that OSHA�s Field Operations Manual provided no
direct guidance on whether OSHA should consider the fact that an employee
responding to pending alleged violations previously worked at other
companies � to whom other OSHA citations
had been issued years ago. � (Tr.
139). �

[43] There
is no place for spitefulness when assessing penalties under the Act.

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On this page

Decision type

ALJ decision

Docket

15-1835

Decided

February 15, 2018

Presiding judge

Dennis L. Phillips

Outcome

Mixed result

Precedential status

Final order, not precedent

Cited standards

29 C.F.R. § 1926.451(b)(1) 29 C.F.R. § 1926.451(e)(1) 29 C.F.R. § 1926.451(f)(3) 29 C.F.R. § 1926.451(g)(1)(vii) 29 C.F.R. § 1926.452(c)(2)

Official source

Read the official release (oshrc.gov)

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