McDonald Masonry

Plain-English summary

McDonald Masonry did masonry work at a jobsite in De Soto, Texas, where
OSHA inspected in July 1993 and issued a serious citation. The company
contested four scaffold-related items but its owner did not appear at the
June 1994 hearing, so Administrative Law Judge Stanley M. Schwartz proceeded
on the Secretary's evidence alone. The compliance officer testified that
debris was piled around the scaffold legs, that some legs rested on loose
wood and concrete blocks instead of sound footing, that workers had no
access ladder and had to climb over the scaffold ends, and that no base
plates were used. The judge found the officer's testimony unrebutted and
affirmed all four items as serious violations, noting employees on the top
level would have fallen 19 feet if the scaffold collapsed. Penalties of
$1,750 for the housekeeping item and $1,250 for each of the three scaffold
items were assessed, for a total of $5,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.25(a) (debris kept clear of work areas); 29 C.F.R. § 1926.451(a)(2) (sound, rigid scaffold footing); 29 C.F.R. § 1926.451(a)(13) (safe scaffold access); 29 C.F.R. § 1926.451(d)(4) (scaffold base plates).
• Outcome: Affirmed. All four contested items of serious citation 1 upheld as serious; total penalty $5,500.
• Key point: When an employer fails to appear, the Secretary need only make a prima facie case, and unrebutted compliance-officer testimony supported each scaffold violation.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                                                .

PHONE:
COM(202) 6065100 zi (202)6o64cso
Frs (202) 60&5100 FTS (202) 6064050

                SECRETARY   OF LABOR
                              Complainant,
                      v.                                                    OSHRC DOCKET
                                                                            NO. 93-3218
                MCDONALD    MASONRY
                              Respondent.


                                   NOTICE OF DOCKETING
                            OF ADMINISTRATIVE MW JUDGE’S DECISION
                 The Administrative Law Judge’s Report in the above referenced case was
            docketed with the Commission on August 10, 1994. The decision of the Judge
            will become a final order of the Commission on September 9, 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.
            Any such petition should be received b the Executive Secretary on or before
            August 30, 1994 in order to ermit su x lcient time for its review. See
            Commission Rule 91, 29 C. Ep.R. 2200.91.
               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 Regional Trial Liti ation
                                   Office of the Solicitor, 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
            havmg questions about review rights may contact the Commission’s Executive
            Secretary or call (202) 606-5400.

                                                    FOR THE COMMISSION


           Date: August 10, 1994                    Ray H. D arling, Jr.
                                                    Executive Secretary

DOCKET NO. 93-3218
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752 tf2

Billie McDonald
McDonald Maso
3206 Main Street,?I uite 101
Rowlett, TX 75088

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00106797749 : 06
 lJNlTED STATES OF AMERICA
OCCUPATIONAL SAFE-W AND HEALTH REVIEW COMMISSION
ROOM 7811, FEDERAL BUILDING
1100 COMMERCE STREET
DALLAS, TEXAS 752424791

PHONE: FAX:
COM (214) 767-5271 COhA (214) 767-0350
F’S (214) 767-5271 FE (214) 767-3350

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SECRETARY OF LABOR,
..
Complainant, ..
..
v. .. OSHRC DOCmT NO. 93-3218
..
MCDONALD MASONRY, ..
..
Respondent. ..
.1

APPEARANCES:

        Nancy B. Carpentier, Esquire
        Dallas, Texas
        For the Complainant.

Before: Administrative Law Judge Stanley M. Schwartz

                                       DECISION    AND ORDER

        This is a proceeding before the Occupational                  Safety and Health Review Commission

(“the Commission”) pursuant to section 10 of the Occupational Safety and Health Act of
1970, 29 U.S.C. 0 651 et seq. (“the Act”). The Occupational Safety and Health
Administration (“OSHA”) inspected a jobsite in De Soto, Texas, where Respondent was
engaged in masonry work, on July 28, 1993; as a result, Respondent was issued a serious
citation with five items and an “other” citation with one item. The company contested items
1 through 4 of the serious citation.’
On March 1, 1994, a notice was sent to Billie McDonald, the company’s owner, at
Respondent’s address of record, advising that a hearing would be held at 1O:OOa.m. on June

%iince item 5 of the serious citation and item 1 of the “other”citation were not contested, they have become
a final order of the Commission by operation of law. (Tr. 6-7).
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8, 1994, in Room 7Bll in the Federal Building at 1100 Commerce Street in Dallas, Texas.
McDonald signed the certificate of posting regarding the notice, certifying the notice had
been posted as required on March 2, 1994, and then returned the certificate to the office
of the undersigned judge where it was received on March 11, 1994. On June 7, 1994, my
office called McDonald’s place of business and left a message on the answering machine
about the hearing the next day. However, McDonald did not appear at the hearing, and
after waiting until lo:30 a.m. the undersigned concluded the company had decided not to
pursue its notice of contest and accordingly began the hearing for the purpose of allowing
the Secretary to present his evidence in regard to the contested citation items? (Tr. 3-8).

                      Citation 1 - Item 1 - 29 C.F.R. (j 1926.25(a\

    Gloria Jones, the OSHA compliance officer (“CO”) who inspected the site, testified

she met first with Mr. Whitaker, the general contractor’s superintendent, and then with Mr.
Hancock, McDonald’s foreman. Pursuant to her inspection, Jones saw broken concrete
blocks, wood pieces and other refuse around the legs of the scaffolding on which
McDonald’s employees were working, as shown in G-l-4. Jones determined the debris was
a serious hazard because employees could have tripped and fallen when accessing the
scaffolding, resulting in possible head injuries or broken bones, and because workers could
have fallen against the scaffolding and caused it to collapse, since the legs were not secure
and level as required; McDonald had eight to ten employees working on the scaffolding, and
those on the top level, as shown in G-5-6, would have fallen 19 feet had it collapsed. Jones
disagreed with the company’s statement in its notice of contest that debris was always picked
up at the end of the day; she got to the site about 8:lO a.m. and began her inspection shortly
thereafter, and Whitaker informed her he had told Hancock to clean up the refuse that
morning as well as the day before. (Tr. 6-21; 30-35; 38-40).
The subject standard provides as follows:
During the course of construction, alteration, or repairs, form and scrap
lumber with protruding nails, and all other debris, shall be kept cleared from

2As noted at the beginning of the hearing, the Secretary need only present a prima facie case for the
undersigned to find violations of the contested items. (Tr. 5).
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    work areas,    passageways,     and stairs, in and around     buildings   or other
    structures.
    Based on the CO’s testimony, the Secretary has established a serious violation of the

standard. The CO’s testimony about the condition and the types of injuries which could
have resulted were unrebutted, and her opinion about the scaffold legs is supported by the
finding of violations as to items 2 and 4, infia. This item is therefore affirmed as a serious
violation. In regard to a penalty, the CO considered the company’s size, history, and good
faith, and the gravity of the violation, in arriving at a proposed penalty of $1,750.00; she
considered the condition of medium gravity but the probability of injury great in case of an
accident. (Tr. 16-18). In view of these factors, the proposed penalty is assessed.

                    Citation 1 - Item 2 - 29 C.F.R. Ij 1926,451(a)(2)

    Gloria Jones testified that some of the scaffold legs were not secure because they

were sitting on pieces of wood, as shown in G-2-3, which could have been displaced; a
worker could have kicked or tripped on the wood pieces in walking by, as they overlapped
the concrete blocks they rested on, which could have caused the wood to move and the
scaffold to become dislodged. Jones considered the condition a serious hazard of high
gravity due to the debris around the scaffolding and the height at which employees were
working, and Hancock agreed with her findings and told her he would keep workers off the
scaffolding until he could get all the problems corrected. Jones did not know if additional
equipment was delivered later that day, as stated in the notice of contest, but said the
scaffolding should not have been used if incomplete and that she disagreed with the
company’s assertion that the boards were cut for and rigid enough for standard scaffolding.
(Tr. 18-24; 29; 36; 40-41).
The subject standard provides as follows:
The footing or anchorage for scaffolds shall be sound, rigid and capable of
carrying the maximum intended load without settling or displacement.
Unstable objects such as barrels, boxes, loose brick, or concrete blocks, shall
not be used to support scaffolds or planks.
 On the basis of the CO’s testimony, the Secretary has demonstrated a serious
violation of the standard. This citation item is accordingly affirmed as a serious violation,
and the proposed penalty of $1,250.00 is assessed.

                  Citation 1 - Item 3 - 29 C.F.R. 5 1926.45l(a)(l3\

   Gloria Jones testified there was no access ladder at the site, and that Hancock told

her workers used the ends of the scaffold, as depicted in G-5, to climb up it; the condition
was a serious fall hazard as the planking overlapped the scaffold ends and employees would
have had to pull themselves up over the planking, and there was nothing other than the
planking to grab hold of to do so. Jones considered the condition to be of high gravity, and
did not know if an access ladder was installed later that day as stated in the company’s
notice of contest. (Tr. 24-31; 41).
The subject standard provides as follows:
An access ladder or equivalent safe access shall be provided.
In view of the testimony of the CO, a serious violation of the standard has been
shown. This item is affirmed as a serious violation, and the proposed penalty of $1,250.00
is assessed.

                   Citation 1 - Item 4 - 29 C.F.R. 5 1926.45l(d)(41

    Gloria Jones testified there were no base plates on any of the scaffold legs at the site,

which was a serious hazard because the legs were not balanced and level as required and
the scaffolding was subject to movement and collapse; some of the legs were on wood pieces
and some were on wood resting on concrete blocks, as shown in G-3-4, and even though
there was cement under the dirt on which all the legs sat base plates were still required
because the dirt was uneven and could have shifted. Jones said a base plate would have fit
over the footing shown on the leg in G-3; she considered the lack of base plates to be of
high gravity. (Tr. 31-42).
The subject standard provides as follows:
Scaffold legs shall be set on adjustable bases or plain bases placed on mud
sills or other foundations adequate to support the maximum rated load.
 5

    Based on the CO’s testimony, the Secretary has established a serious violation of the

standard. This item is accordingly affirmed as a serious violation, and the proposed penalty
of $1,250.00 is assessed.

                                     Conclusions of Law

    1. Respondent,      McDonald Masonry, is engaged in a business affecting commerce and

has employees within the meaning of section 3(5) of the Act. The Commission has
jurisdiction of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. 08 1926.25(a), 1926.451(a)(2),
1926.45 l(a)( 13) and 1926.451(d)(4).

                                            Order

     On the basis of the foregoing Findings of Fact and Conclusions             of Law, it is

ORDERED that:
1. Items 1 through 4 of serious citation 1 are AFFIRMED as serious violations. A
penalty of $1,750.00 is assessed for item 1, and penalties of $1,250.00 each are assessed for
items 2 through 4.

                                                    Stanley M. Schwartz
                                                    Administrative Law Judge

Date:#lUG - 1 1994
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