M & W Roofing Co., Inc.

Plain-English summary

M & W Roofing Co., Inc. worked from scaffold platforms at a Walgreens construction site in Wisconsin. An employee reached the scaffold by climbing its cross members because no ladder or equivalent safe access was provided. The 12-foot and 18-foot platforms also lacked required guardrails and toeboards, and the employee did not wear a protective helmet while working and climbing. Administrative Law Judge Sidney J. Goldstein found that the compliance officer's observations were confirmed by photographs and affirmed all three items. He reduced the proposed penalties based on the single employee exposed, the worker's position away from the platform edge, and the limited period of overhead exposure. The assessed penalties were $400 for access, $400 for guardrails and toeboards, and $300 for the repeat hard-hat item, totaling $1,100.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(a)(13), 1926.451(d)(10), and 1926.100(a).
• Outcome: Affirmed. All three citation items were affirmed with penalties totaling $1,100.
• Key point: Scaffold cross members are not a substitute for required safe access, and work platforms above ten feet require complete guardrails and toeboards even when the employee is not standing at the edge.

Full text (OSHRC public release)

                                    United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                              1120 20th Street, N.W., Ninth Floor
                                 Washington, DC 20036-34 19



                                                                               Phone: (202) 606-5400
                                                                                Fax: (202) 606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-2179
M & W ROOFING CO., INC.
Respondent.

                     NOTICE OF DOCKETING
              OF ADMINISTEZATIVE L4W JUDGES                     DECISION
 The Admimstrative Law Judge’s Keport in the above rererenced case was

docketed with the Commission on August 4, 1995. The decision of the Judge
will become a final order of the Commission on September 5, 1995 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 24, 1995 in order to ermit sufB‘cient time for its review. See
Commission Rule 91, 29 C.3 .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 Litigation
Office of the Solicitor, U.S. DOL
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 rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

                                       /f!iiy$
                                             fi+[RIBKk

Date: August 4, 1995 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 94-2179
NOTICE IS GIVEN TO THE FOLLOWING:

Richard J. Fiore, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
230 South Dearborn St.
Chicago, IL 60604

Mark Bourgeois, President
M & W Roofing Co., Inc.
PO Box 1389
Waukesha, WI 53187

Sidney J. Goldstein
Administrative Law Jud e
Occupational Safety an tf Health
Review Commissron
Room 250
1244 North S eer Boulevard
Denver, CO tr0204 3584

00114153661:05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Speer Boulevard
Room 250
Denver, Colorado 80204-3582

                                                                                                          .

PHONE:
COM (303) 8444409 zi (303)8444759
Frs (303) 8443759
F-7s(303)844-3409

SECRETARY OF LABOR,
     Complainant

                v.                                                              OSHRC DOCKET
                                                                                NO. 942179
M & W ROOFING                   CO., INC.,

                Respondent.



APPEARANCES:

                        Leonard Borden, Esq., Office of the Solicitor, U.S. Department of Labor,
                               Chicago, Illinois

                        Marc Bourgeois, President, M & W Roofing Co., Inc., Waukesha, Wisconsin


Before:                 Administrative   Law Judge Sidney J. Goldstein


                                             DECISION AND ORDER


                This is an action by the Secretary of Labor to a.@rm two items of a serious citation
and one item of a repeat citation, alleging violations of safety regulations adopted under the
Occupational            Safety and Health Act of 1970. The matter arose after a compliance                    officer
inspected            a workplace    of the Respondent,        concluded     that it was in violation          of the
regulations in question, and recommended                   that the citations be issued.     The Respondent
disagreed with these citations and filed a notice of contest. After a Complaint and Answer

were filed with this Commission, a hearing was held in Milwaukee, Wisconsin.
Item 1 of citation No. 1 alleged that:
An access ladder or equivalent safe access to scaffold(s) was not provided:
(a) Walgreen store under construction: Bricklayer scaffold consisting of three
6’.0” sections in height (approximately 18’-0” above ground level) was not
provided with a ladder for safe access. Employees egressed and accessed
scaffold by climbing up/down cross members.

in violation of the regulation found at 29 CFR 1926.451(a)(13) which provides:

    An access ladder or equivalent safe access shall be provided.
    At the hearing the compliance officer testified that he observed an employee of the

Respondent working on a scaffolding at least twelve feet above ground level. He checked .
the frontal construction area but noted no access ladder or other safe access to scaffolding.
He asked the employee how he got to the platform and was told he ascended up the side
of the platform. A photograph of the area disclosed no ladder or substitute safe access to
the platform. This item of the citation is affirmed.
Item 2 of citation No. 1 stated:
Standard guardrails and toeboards were not installed at all open sides and ends on tubular
welded frame scaffolds more than 10 feet above the ground or floor:

    (a) Walgreen store under construction: T.W.F. bricklayers scaffold consisting
    of three 6’.0” sections in height (approximately 18’~0” + above ground level)
    spanning estimated distance of 90’00”, did not have guardrails and toeboards
    installed.

in violation of the regulation at 29 CFR 1926.451(d)( 10) which reads:
Guardrails made of lumber, not less than 2x4 inches (or other material
providing equivalent protection), and approximately 42 inches high, with a
midrail of lx6 inch lumber (or other material providing equivalent protection),
and toeboards, shall be installed at all open sides and ends on all scaffolds
more than 10 feet above the ground or floor. Toeboards shall be a minimum
of 4 inches in height. Wire mesh shall be installed in accordance with
paragraph (a)(6) of this section.
The compliance officer testified that an employee of the Respondent worked on two
platforms. One was twelve feet above ground level, and the other was eighteen feet above
the ground. There were no standard guardrails or toeboards on either level, thus subjecting
its employee to a fdll of ten feet or more. These platforms were fully planked, about six feet
wide, and immediately adjacent to the building under construction. The compliance officer

                                               2

considered the lack of guardrails and toeboards a violation of the regulation, and took
photographs of this infraction. This item of the citation is therefore affirmed.
Item 2 of citation No. 2 alleged that:
Employees were not protected by protective helmets while working in areas where
there was a possl%le danger of head injury from impact, or from falling or flying objects, or
from electrical shock and burns:

       (a) Walgreen store under construction: Employees entering and leaving building at
       Northwest corner not wearing head protection in area where overhead work was in
       progress.

  M & W Roofing Co. was previously cited for a violation of 29 CFR 1926.100(a) which

was contained in OSHA Inspection No. 103521555, Citaiton (sic) No. 1, Item 1 issued
6129194.
in violation of the regulation at 29 CFR 1926.100(a) reading as follows:
Employees working in areas where there is a possible danger of head
injury from impact, or from falling or flying objects, or from electrical shock
and burns, shall be protected by protective helmets.
With respect to this item of the citation, the compliance officer noted an employee
of the Respondent working on the platform without a hard hat. A photograph of the
incident confirms the officer’s observation. Nor was a hard hat worn while this worker
ascended and descended the platform area. This portion of the citation is also affirmed.
Summarized, the compliance officer’s testimony was to the effect that the Respondent
was in violation of the three items of the citations, all of which infractions were confirmed
by photographs taken at the time of the inspection. The citations are therefore affirmed.
There will be adjustments to the suggested penalties. With respect to item 1 of
citation I only one employee of the Respondent was involved. With respect to item 2 of
citation 1 only one employee was involved, and he worked immediately adjacent to the
building and about six feet from the edge of the planking, thus reducing the chances of
falling. With respect to the repeat citation, again, only one employee was involved and
subject to harm only while ascending or descending from the platform on the crossbars of
the scaffolding. While working on the platforms there was no overhead construction in
progress.
Accordingly, citation No. 1, item 1, is af!firmed with a penalty of $400.00. Citation No.
1, item 2 is affirmed with a penalty of $400.00. Citation No. 2, item 2 is affirmed with a
penalty of $300.00.

Dated: July 28, 1995