Caribco International Corporation

Plain-English summary

Caribco International was working at a fitness-facility construction site at Fort Buchanan in San Juan, Puerto Rico. OSHA cited missing scaffold guardrails, an unguarded open-sided floor, inadequate scaffold bracing, and failures to maintain an accident-prevention program and train employees to recognize hazards. The judge credited the compliance officers over Caribco's project engineer and laborer on whether employees were working on the unguarded scaffold. He found that employees faced serious fall hazards from scaffolds and a floor edge, that scaffold frames lacked required cross-bracing, and that Caribco's written safety program was not meaningfully implemented. All five items were affirmed. The judge assessed $700 for the two safety-program items, $1,225 for the scaffold-guardrail item, $500 for the open-floor item, and no penalty for the other-than-serious bracing item, for a total of $2,425.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(1), 1926.21(b)(2), 1926.451(d)(10), 1926.500(d)(1), and 1926.451(d)(3).
• Outcome: Affirmed. All cited items were upheld, with total penalties of $2,425.
• Key point: A written safety manual is insufficient when supervisors do not know its requirements, training is not demonstrated, and visible hazards remain uncorrected.

Full text (OSHRC public release)

OCCUPATIONAL         sA~~N~~~E~~~~~c~E”,EW                COMMiSSION
                           One Lafayette Cents
                     1120 20th Street, N.W. - 9th Floor
                        Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2758
CARIBCO INTERNATIONAL CORPORATION
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRATIVE UW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on January 12, 1994.’The decision of the Judge
will become a final order of the Commission on February 11, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.

All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So1 l
citor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: January 12, 1994
DOCKET NO. 92-2758
NOTICE IS Gm TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re 'ondl Trial Iiti ation
Office of the SoTl
citor, U.S. D&
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq
a

Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 brick, Room 70?
New York, NY 10014

James G. McLau l IV
USDC-PR 2057OP
Esquire Building, Suite 300
Ponce De Leon at Vela Street
Hato Rey, PR 00918

Irvin Sommer
Chie P Administrative Law Judge
Occupational Safety and Health
Review Commissron
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00017983339:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.Wa - 9th Floor
Washington, DC 200364419

~~~
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SECRETARY OF LABOR, l
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   Complainant,                         l
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                                        0
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           v.
                                        .
                                        0       Docket No. 92-2758

CARIBCO INTERNATIONAL CORP., i
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Respondent. ..
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Appearances:

   Jane S. Brwmer, Esq.                        James G. McLaughlin, Esq.
           U.S. Dept. of Labor                        Esquire Bldg. - Suite 300
           New York, NY 10014                         Hato Rey, Puerto Rim

                  For the Complainant                         For the Respondent

Before: Administrative Law Judge Irving Sommer

                              DECISION AND ORDER


   This is a proceeding under Section 10(c) of the Occupational Safety and Health Act

of 1970, 29 U.S.C. section 651 et seq., (the Act), to review citations issued by the Secretary
of Labor pursuant to section 9(a) of the Act, and the proposed assessment of penalties
therein issued, pursuant to section 10(a) of the Act.
Following an inspection of Respondent’s business site at the Facilities Fitness Building
at Ft. Buchanan, San Juan, P.R., the Secretary of Labor issued two citations, one (citation
No. 1) alleging four serious violations (Items l-4), and two (citation no. 2) alleging one other
 2

than serious violation. No jurisdictional issues are in dispute, the parties having pleaded
sufficitnt f&a to establish that the Respondent is subject to the Act and the Commission
has jurisdiction of the parties and of the subject matter. A hearing was held in San Juan,
Puerto Rico. Both parties were represented and filed post-hearing brie&.

                               THE ALLEGATIONS
                                 Citation I-Item 3
          Alleged Violation of 29 C.F.R. 1926.45l(dMlO\
   The Secretary alleged that the Respondent violated the standard at 29 C.F.R.

1926.4Sl(d)( 10) for failure to have guardrails on the open sides and ends of Welds more
than 10 feet above the ground. The standard provides:
1929.451. Scaffolding
--(d) Tubular welded frame scaBol&
-w Guardrails made of lumber, not less than 2X4 inches- and
approximately 42 inches high, with a midrail of lx6 lumber -shall be installed at all open
sides and ends on all scaffolds more than 10 feet above the ground or floor.
An OSHA compliance officer testified that while conducting his inspection he noted
six instances where employees of the Respondent were working on non-mobile tubular
welded metal frame scaffolds eleven feet high that had no intermediate rails on the side and
no guard rails at the end. He testified that all of the employees seen working on the
scaffold were identified to him as Car&co employees by the Project Engineer for Canibco
h4r. Lopez who accompanied him during the inspection. The employees were engaged in
tieing in forms on the building under progress and were exposed to a fall of over ten feet.
The compliance officer described a photograph of the work scene as depicting two Cariiiii
employees working on the scaffold at hazard of falling (Ex C-l). Lopez testified that the two
people shown on the scaffold in photograph were both he and Santiseban, the compliance
officer. Again Cruz, a laborer also testified he was working at another wall and
was not one of the employees allegedly depicted in the photograph. Further describing the
situation presented is the testimony of Rivera, the compliance officer who took the
photograph that the two persons depicted were not Santiseban and Lopez. Having observed
 3

the demeanor of the witness as they testified and having considered all the &umstan~s
which bear upon the weight of their testimony 1 do not accept the contention of both Lopez
a& Cruz as to the identification of those employees in the photograph seen working by the
compliance officer. Firstly, the testimony of Cruz lacked the definiteness and certainty
associated with truth. He was extremely newous and shifty on the stand, and his testimony
was tinctured with understandable bias in favor of his employer. Lopez similarly being the
Project Engineer and Safety Official similarly testified in a hesitant manner. His testimony
fluctuated and lacked the definiteness and certainty associated with truth. My opinion is that
he framed his testimony as to the work activities on the scaffold and to the hazards alleged
thereon so as to serve his best interests and that of his employer. The court is not bound
to give full faith and credit to the evidence of an interested witness, even though not directly
impeached or contradicted. The credibility of such a witness must be determined as a
question of fact. In this case I am unable to accept the testimony of both Lopez and Cruz
as to the violation alleged under Citation No. 1, Item 3. I find that the testimony of both
Santiseban and Rivera is both reliable and worthy of belief. The totality of the evidence
fully establishes that employees were working on the scaffold without intermediate guardrails
on the sides and with no railings on the ends subject to a hazard of falling and sustaining
severe injuries. Accordingly, the citation is affirmed. Under aH the existing facts and
circumstances herein, a penalty of $1225 for said violation is consistent with the criteria set
forth in 17(j) of the Act.
Citation No. LItem #4
Alleged Violation of 29 C.F.R. 1926.50(XdX1)
The Respondent was cited for a serious violation of 29 CFR 1926.500(d)(l), for
failure to guard with a standard railing or its equivalent every open-sided floor six feet or
more above the adjacent floor. The compliance officer testified that he observed an
employee working on an open sided floor which was 40 feet long and 20 inches in depth, 16
feet above ground level which was not guarded by a railing or equivalent and was subject
to a fall of 16 feet to the ground-the employee was seen working 6 inches from the edge of
the platform. There was no credible evidence which directly refuted the findings by the
compliance officer. In short, the preponderance of the evidence fully demonstrates that an
 4

emplqw of the respondent was workingon an unguarded open sided-floor and was subject
to a fall which could c8ust serious injuries, all of which were known to the respondent’s
foreman who was in the vicinity. Accordingly, the citation item is affirmed. Under the
existing facts and circumstances, a penalty of $500 is appropriate.

                             Citation No. l-Items 1 & 2
           Alleged Violation of 29 C.F.R. 1926.2O(b~
     The two items alleged concern the alleged inadequacies in the respondent’s safety

program. Item 1 alleges a serious violation of 1926.20(b)(l) for failure to initiate and
maintain an accident prevention program. Item 2 alleges failure to instruct employees to
avoid unsafe conditions. The compliance officer testified that the entire safety program of
the respondent was deficient. The scaffolding lacked the necessary guardrailprotections,the
scaffolding lacked the necessary cross bracing on both sides for the necessary stability,
employees were working on such hazardous scaffolds with full knowledge of the foreman,
an employees admitted that he had not been given any safety training and that the foreman
Lopez was himself not safety conscious nor experienced in recognizingor correctinghazards.
This observation was based on the finding of numerous fall hazards all within knowledge of
the foreman who took no corrective action. The totality of the evidence clearly demonstrates
the absence of a clearly designed, strictly enforced safety program. While there was a
printed safety program it is seriously questioned whether it was used at all or merely window
dressing. This is borne out by total ignorance of the foreman as to whether said program
discussed something as vital as guard rails on tubular welded frame scafEolds,guardrails on
open sided floors or platforms or the need for cross bracing. While there is an intimation
that safety meetings were held, no tangible demonstrative evidence was produced showing
how often, what the subjects were, who was present at the meetings, etc. Considering the
presence of the indicated fall hazards and the lack of knowledge by the foreman on said
subject it is reasonable to conclude that the respondent did not initiate and maintain a safety
program as required, and I so tid. Accordingly, a violation of 29 CFR 1926.20(b)(l) is
affirmed. The evidence further demonstrates that the employees were not instructed in the
recognition and avoidance of hazards. The compliance officer stated he had asked
 5

employees eJrpo3ed to a fall hazard from the scaffokis whether they had any safety training
which was answered in the negative.(T31). Moreover, he also stated that the foreman said
“he was not prepared to give the training to the employees because he lacks the knowledge
on safety but that arrangements will be made with someone else to cafl~ on the training.”
(~31) Again, the presence of the fall hazards, the employees admission of lack of training
and all the circumstances herein fully demonstrate an absence of an appropriate safety
program directed towards the construction areas of respondent’s workplace. Actual&
Carii knew that an adequate safety program which was fully carried out by daily
inspections and training was needed. This is borne out by the presence of its having a
printed safety manual; alas, its safety manager was not fully famitiar with the contents
thereof, and did not enforce nor show adequate knowledge of safety. The evidence
demonstrates a violation of 29 CFR 1926.21(b)(2) and I so find Under all the existinghcts
and circumstances and taking into consideration the criteria set forth in 17(j) of the Act a
combined total penalty for violation of 1926.20(b)(l) and 1926.21(b)(Z) of $700 is
appropriate.

                                Citation No. 2&m 1
            Alleged Violation of 29 C.F.R. 1926.45l(d)(3)
    Caribco was also charged with an other than serious violation of 29 CFR

1926.451(d)(3) because of failure to have the tubular welded scaffolds properly braced by
cross-bracing or diagonal braces, or both for stabilization. The testimony of the compliance
officer with accompanying photograph (Exh. C-l) fully shows that only one side of each
scaffold frame was braced which could cause lateral instability as the employees worked
thereon. Thusiy, they would be exposed to a possl%le fall. Accordingly, this citation is
affirmed, with no penalty assessed.
Findings of Fact and Conclusions of Law
All findings of fact relevant and necessary to a determination of the contested issues
have been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil
Procedure. Proposed findings and conclusions of law inconsistent with this decision are
denied.
 6

  Based upon the Findings of Fact, Conclusions of Law, and the entire record, it is

hereby ordered:
1l The allegation of serious violations of 29 CFR 1926.2O(b)(1) and 29 CFR 1926.
21(b)(2) are AFFIRMED and a combined total penalty of $700 is assessed,
2 l The allegation of a serious violation of 29 CFR 1926.45l(d)( 10) is AITIRMED
and a penalty of $1225 is assessed.
3 0 The allegation of a serious violation of 29 CFR 1926.500(d)(l) is AFFIRMED
and a penalty of $500 is assessed.
40 The allegation of an other than serious violation of 29 CFR 1926.451(d)(3) is
AFFIRMED with no penalty assessed.

                                            IRVING SO-R
                                            Judge

DATED: JbN 1 0 1994
Washington, DC.