Megan Construction Company

Plain-English summary

A masonry subcontractor employee worked on a third-level scaffold without guardrails at a project controlled by Megan Construction. Judge Covette Rooney vacated an allegation that Megan lacked a program of frequent and regular inspections because its daily and weekly inspection evidence showed otherwise. She nevertheless found constructive knowledge of the scaffold violation. Given prior fall-protection notices and the day's expected scaffold work, Megan's project manager should have checked site safety before beginning office work in the trailer. The serious scaffold item was affirmed with a $2,100 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2) and 1926.451(g)(1)(vii)
• Outcome: Safety-inspection-program item vacated; serious scaffold fall-protection item affirmed with a $2,100 penalty.
• Key point: A controlling contractor may have an adequate general inspection program yet still lack reasonable diligence when it fails to check anticipated high-hazard work before the workday begins.

Full text (OSHRC public release)

                     UNITED STATES OF AMERICA
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v. DOCKET NO. 97-1361
MEGAN CONSTRUCTION COMPANY,
Respondent.

Appearances : For Complainant: Anthony Stevenson, Esq., Office of the Solicitor, U. S. Department of Labor,
Cleveland, OH.; For Respondent: Lisa M. Bitter, Esq., Cincinnati, OH.
Before: Judge Covette Rooney

                                  DECISION AND ORDER
     This proceeding is before the Occupational Safety and Health Review Commission pursuant

to Section 10(c) the Occupational Safety and Health Act of 1979 (29 U.S.C. §651, et seq.)(“the
Act”). Respondent, Megan Construction Company, at all times relevant to this action maintained at
a job site at Cincinnati Urban League Project, 3458 Reading Road, Evendale, OH., where it was
engaged in the business of construction. Respondent admits that it is an employer engaged in a
business affecting commerce and is subject to the requirements of the Act.
The record reveals that Respondent was one of several prime contractors at the subject job
site. Respondent was the contractor in charge of the exterior enclosure which involved masonry and
windows, and the interior enclosure which included dry wall and finishes (Tr. 61)1. Respondent hired
several subcontractors on this job. Blankenship Masonry, Inc. was hired as a subcontractor to
perform masonry and brick work (Ex. R-B). On May 1, 1997, OSHA Compliance Officer (“CO”)
Samuel Merrick conducted an inspection pursuant to a complaint received in his office. As a result
of this inspection, on July 21, 1997, Respondent was issued a citation alleging two serious violations
with a proposed total penalty in the amount of $4,200.00. By timely Notice of Contest, Respondent
brought this proceeding before the Review Commission. A hearing was held before the undersigned
on March 30, 1998. Counsel for the parties have submitted Post-Hearing Briefs and Reply Briefs,
and this matter is ready for disposition.
Background
CO Merrick testified that he observed that employees working from scaffolds upon his arrived
at the job site between 7:30 A.M. and 7:45 A.M. One employee was on a third level working on a
scaffold with no guardrails and others were actively laying brick on the north side. He videotaped
this observation (Tr. 11, 50; Exs. C- 1 to 3 ). At approximately 7:50 A. M., he met with Michael
Garrett who was the project manager for Respondent. His duties included overall management of
the activities of Respondent’s subcontractors including safety and OSHA compliance (Tr. 50, 146-

    1
     The term “Tr.” refers to the official transcript in the subject matter. The term “Ex.” refers

to the exhibits which were introduced into evidence during the hearing.
48). Mr. Garrett informed him that in his supervisory role, he was responsible for supervising
Blankenship Masonry, Inc. while they were laying the brick. He also met with the primary general
for the entire site, Mr. Jack Meyer of d.e. Foxx, and the foreman for Blankenship, Mr. William
Baudendistel (Tr. 11-13).
The record reveals that the Respondent’s office trailer was some 40 to 50 feet from the cited
scaffolding. In the door to the trailer there was a 12 by 12 inch safety glass window with wiring in
it. CO Merrick testified that he could observe the cited scaffolding from this window without having
to bend or stretch in any manner (Tr. 26-27, 51).
Secretary’s Burden of Proof
The Secretary has the burden of proving his case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (the employer either knew or with the exercise of reasonable diligence could
have known, of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Citation 1, Item 1
29 CRF §1926.20(b)(2) Such programs shall provide for frequent and regular inspections of the job
sites, materials, and equipment to be made by competent persons designated by the employers.
a) The employer failed to make job site inspections, such inspection would have
addressed issues of the scaffolding being utilized by employees of the subcontractor
such as their erection by a competent person and that they were safe to be utilized.
CO Merrick testified that he asked Mr. Garrett if he had observed the guardrails and the
scaffolding that morning. Mr. Garrett told him that he had done inspections (Tr. 14). CO Merrick
testified that he issued the instant violation because if Mr. Garrett had made the inspection, the
violation should have been corrected before the work began (Tr. 16). He concluded that since there
was a violation, Mr. Garrett must not have made an inspection (Tr. 32). He acknowledged that he
cited this standard because he saw a violation and it had not been abated. He further acknowledged
that the citation did not take into account what Megan’s safety program consisted of regarding
frequent and regular inspections (Tr. 41). CO Merrick testified that the only documentation Mr.
Garrett provided to him validating inspections were written warnings which had been issued to
Megan by d.e. Foxx (Tr. 17). He could not recall any documents with regard to weekly inspections
or a safety scaffolding checklist (Tr. 32). He further testified that in response to his inquiry regarding
a safety program, Mr. Garrett merely pointed to a manual on a shelf. CO Merrick did not retrieve
this manual from the shelf because he believed it was company property (Tr. 33).
Mr. Baudendistel, the Blankenship foreman, testified that he did not recall Mr. Garrett
performing any inspection of his job site. He testified that he would occasionally see Mr. Garrett
walking around the job site. He would see him in passing, headed in and out of the building, or
standing in his trailer looking out of the window (Tr. 96-97, 103). He explained that he believed that
one would normally be aware of the fact that an inspection of their scaffolding was in progress
because the safety person would stand by the scaffold as he observed it (Tr. 98-99). It was his belief
that the more effective inspection occurred, when one was aware of the fact that an inspection was

                                               -2-

in progress. However, Mr. Baudendistel also acknowledged that he could have been busy working
and not seen Mr. Garrett performing inspections (Tr. 98-99). In view of this acknowledgment, the
undersigned is unpersuaded that no inspections occurred.
The undersigned finds that in order to determine a violation of the cited standard, the
Secretary must inquire into the frequency of the inspections and the competency of the person
conducting the inspections.2 The Secretary has not alleged that Mr. Garrett was not competent to
perform such inspections. Respondent’s President, Evans Nnamdi Nwankwo, testified that Mr.
Garrett, in his position as project manager, was at the project everyday. His duties included safety
including daily safety inspections, and he received and responded to any safety complaints directed
to subcontractors of Megan (Tr. 146-47, 151-54, 156-57). Mr. Garrett testified that he walked the
job site daily to see what was going on and He testified that during his daily walk- through, he kept
abreast of safety issues and if he saw a safety infraction he had it corrected. If necessary he had the
authority to discipline subcontractors for safety infractions He estimated that he spent 35 to 40
percent of the day in the office trailer coordinating activity. The remainder of his day was spent on
the job site (Tr. 187- 89 ; Exh. R-E). He testified at times walked the site more than once a day, and
if he saw a violation he would take care of it (Tr. 190). He testified that he spoke to Blankenship’s
foreman on a daily basis (Tr. 191). He further testified that he kept a daily log which included
manpower counts and general activities including observations such as safety problems observed
during the day. He explained that he had attempted to locate these records but was not successful.
He attributed this to the fact that the Respondent had relocated several times into different trailers
while performing two other jobs (Tr. 184-85).
Mr. Garrett further testified that he also conducted a weekly inspection which he had
documentation of. He testified that upon his arrival he created several safety documents derived from
the forms he used with his former employer. These documents were weekly safety reports and
scaffolding inspection forms (Tr. 184-85). He testified that Exh R-G contained the weekly safety
reports dated from March 10, (one week after he started working for Respondent), March 17, March
24, March 31, April 14, April 21 and April 28, 1997 (Tr. 197- 201). These documents indicate that
on April 28, 1997, a problem was recorded with Blankenship’s scaffolding - a couple of scaffold
board midrails were missing. He explained that he learned that the midrails had been taken down in
order to place materials on the scaffolding. He directed Blankenship to immediately replace the rails
(Tr. 201-03). He also had a scaffold safety checklist which focused on the actual scaffold
components, erection and usage (Tr. 203; Ex. R-H). He completed this checklist for inspections
performed March 24 and 31, and April 8, and 28, 1997. He again documented the issue with the
missing guardrails where brick and mortar were being loaded on the April 28, 1997 report.
The undersigned finds that the mere existence of safety violations does not per se establish
the failure to have a safety program that provided for frequent and regular inspections. The
undersigned also finds that the Respondent presented sufficient evidence to establish that frequent

   2
     Section 1926.32(f) defines a competent person as 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. The record contains ample testimony which establishes Mr. Garrett’s competency (Tr.
180-83).

                                             -3-

and regular inspections of the job site were performed. The contents of the inspection reports
corroborate that these inspections were performed frequently and took into consideration the job site,
materials and equipment. The undersigned having observed the demeanor of Messrs. Nwankwo and
Garrett finds their responses were forthright and finds that their testimony was credible. The violation
of §1926.20(b)(2) is Vacated.
Citation 1, Item 2
29 CFR §1926.45(g)(1)(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.
a) The employer failed to ensure that scaffolding used on site had complete guardrail
system in areas where employees are working. The employer failed to utilize a
competent person to erect scaffolding which exposed employees to fall hazards above
13.7 feet.
The record reflects that Respondent stipulated that there was a scaffolding violation, involving
Blankenship Masonry, where there were guardrails missing at a point on the scaffolding where it was
at a height above 10 feet (Tr. 6). The Secretary argues that as the controlling employer knew or with
the exercise of reasonable diligence could have known that employees of its subcontractor were
working on scaffolds without proper fall protection. CO Merrick testified that when he arrived at the
job site, the exposed employee was on the third buck removing the packing sheets from between
bricks and carrying them to the southeast corner to be laid. He testified that he learned that the brick
had been set up there the night before (Tr. 21, 39, 46). CO Merrick testified that Mr. Garrett had a
direct and clear view of all of the scaffolding from its office trailer (Tr. 25, 49, 51). He believed that
all Mr. Garrett had to do was look out of the trailer door window to see the unguarded scaffolding.
The Respondent contends that it did not create or control the violative condition, nor with the
exercise of reasonable diligence could it have known of the cited condition.(Respondent Post-Hearing
Brief, p. 20). Mr. Garrett testified that when he arrived at the job site at approximately 7:30 A.M.,
no work had started work and the third buck of scaffolding on the east side had not been constructed
(Tr. 189). He testified that at the time of his arrival, Blankenship employees were congregating
outside the gate until starting time. Upon his arrival at the job site, he went directly to the trailer to
take care of paperwork, make phone calls and get the day started (Tr. 189). He testified that he had
no idea that any brick was being installed at that time (Tr. 214). The Respondent points out that the
compliance officer acknowledged that under the aforementioned scenario, there was no reason to
expect Mr. Garrett to look out of the trailer door window in search of a violation (Respondent’s
Reply Brief, p. 4; Tr. 48).
The Secretary also introduced into evidence four Safety Observation Memoranda which d.e.
Foxx had issued to Respondent. These memoranda were issued by Jack Meyer whenever he believed
an unsafe condition existed on the job site. The memoranda were dated April 2, 1997 (top rail in mid-
rail at window opening on first and second floor used for stacking masonry were not in place); April
3, 1997 ( drywallers working on second floor without guardrail or being tied off); April 10, 1997
(men working on scaffold at second floor window without fall protection); April 14, 1997 (no
guardrail at ends of working platform on scaffold for brick layer); and April 30, 1997 (masons
working on scaffold before guardrail was installed at north elevation). Respondent provided
testimony that only the April 2 observation involved Blankenship, and the issue concerned guarding

                                               -4-

at a window opening and not scaffolding(Tr. 252). The safety observation of April 3 involved the
drywall subcontractor and not Blankenship. Furthermore, Mr. Garrett testified that at the time of this
observation, the employees were not required to be tied off because of the height of the scaffolding.
He reported this finding back to d.e. Foxx (Tr.206-07, 211). He testified that the April 10
memorandum involved the drywall subcontractor and not Blankenship. He explained that he found
that the scaffolding was in place and that there was no fall protection violation (Tr. 208-09). Mr.
Garrett testified that he again found no violation in response to the April 14 memorandum (Tr. 210,
214). Mr. Garrett and Mr. Nwankwo both provided undisputed testimony that Respondent was not
in receipt of the April 30 memorandum until after the May 1, 1997 inspection (Tr. 144-45, 222-23).
Mr. Garrett disagreed with the contents of the memorandum. He testified that he had not observed
any scaffolding problems with Blankenship’s scaffolding. Furthermore, he believed that because no
planking was present on which employees could have been working, construction of the scaffolding
was in progress. Therefore, there would have been no guardrail installed at this stage (Tr. 249-50).
There is no dispute that the standard is applicable or that an employee had access to the
violative condition. The undersigned finds that the testimony of Messrs. Nwankwo and Garrett and
the contract between the two entities (Ex. R-B), establish that Respondent had control over its
subcontractors and was responsible for ensuring that safety was enforced. Mr. Garrett’s duties
included inspections for safety and ensuring that infractions of subcontractors were immediately
corrected (Tr. 147-151).
Employer knowledge (constructive) can be established if the Secretary establishes that an
employer could have known of the violative condition, if it had exercised reasonable diligence.
Review Commission precedent had established that “[r]easonable diligence involves several factors,
including an employer’s ‘obligation to inspect the work area, to anticipate hazards to which
employees may be exposed, and to take measures to prevent the occurrence.’Frank Swidzinski Co.,
9 BNA OSHA 1230, 1233 (No. 76-4627, 1981) . . . Other factors indicative of reasonable diligence
include adequate supervision of employees, and the formulation and implementation of adequate
training programs and work rules to ensure that work is safe.(citations omitted).” Pride Oil Well
Service, 15 BNA OSHA 1809, 1814 (No. 87-692, 1992). The record establishes that at the time Mr.
Garrett was in the trailer he did not know of the violative condition. The record reveals that it
occurred subsequent to his entry into the trailer, and thus, he had no actual knowledge of it.
However, the record reveals that a part of Mr. Garrett’s morning routine upon his arrival at the job
site, was to “get [his] game plan for the daily activities”(Tr. 189). The record is void of any evidence
of any efforts which Mr. Garrett took to ensure job site safety prior to commencing office type work.
In light of the nature of the work occurring outside of the trailer - scaffolding, and the fact that
Respondent had been notified by the general contractor of several fall protection issues involving its
subcontractors, albeit not always an OSHA violation, the undersigned finds that it was incumbent
upon Mr. Garrett to take certain measures prior to going into his trailer to commence office work.
Admittedly, it was difficult to view the entire job site from inside the trailer and Respondent’s ready
access to its subcontractors was prohibitive at that location. However, with the exercise of
reasonable diligence preventative measures for the anticipated hazards of the day’s work could have
been implemented. The undersigned finds that to address these issues after work in the trailer has
been completed demonstrates a lack of the exercise of reasonable diligence. The undersigned further
finds that in light of the alleged observation made by Mr. Meyer on April 30, Respondent with the

                                              -5-

exercise of reasonable diligence would have been made aware of the activity which was to commence
on May 1.3 In view of the work that was being done , Respondent was certainly on notice that some
activity was taking place on the north side. This constructive knowledge of the supervisor, Mr.
Garrett, is imputable to the Respondent. Dun Par Engineered Form Co., 12 BNA OSHC 1962 (No.
82-928, 1986); Todd Shipyards Corporation, 11 BNA OSHC 2177, 2179 (No. 77-1598, 1984). In
light of these findings, the undersigned finds that the Secretary had established a prima facie case.
Classification and Penalty
Section 17(k) of the Act, 29 U.S.C.. §666(k) of the Act, provides that a violation is “serious”
if there is “ a substantial probability that death or serious physical harm could result” from the
violation. Once a contested case is before the Review Commission, the amount of the penalty
proposed by the Complainant in the Citation and Notification of Proposed Penalties is merely a
proposal. What constitutes an appropriate penalty is a determination which the Review Commission
as the final arbiter of penalties must make. In determining appropriate penalties “due consideration”
must be give to the four criteria under Section 17(j) of the Act, 29 U.S.C., §666(j). These “penalty
factors” are: the size of the employer’s business, the gravity of the violation, the employer’s good
faith, and its prior history. J.A. Jones Construction Co., 15 BNA OSHC 2201, 2213-14 (No. 87-
2059, 1993).
The undersigned finds that a fall from 13.5 feet from a scaffold to the ground level could
result in serious physical harm. Thus, the violation was appropriately classified as serious. The
gravity of the violation reflected a high severity because of the serious nature of expected injuries.
The probability was assessed as greater because on the nation level fall hazards are at a high rate. The
gravity based penalty should be adjusted to reflect the respondent’s size and history. The Respondent
had four employees and no history of violations at the time of the inspection. In view of the serious
nature of the violation there has been no adjustment for good faith. Accordingly, a penalty in the
amount of $2,100.00 is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER

1. Citation 1, Item 1 alleging a violation of §1926.20(b)(2) is Vacated.
2. Citation 1, Item 2 alleging a violation of §1926.451(g)(1)(viii) is Affirmed with a penalty of
   $2,100.00.

                                                   Covette Rooney
                                                   Judge, OSHRC
   

   Dated: Washington, D.C.

    3
    The undersigned finds that the fact that Mr. Garrett did not observe the alleged April 30
   

   observation does not establish that said condition was not present. The record is void of any evidence
   as to when Mr. Meyer made his observation and when Mr. Garrett observed the area.

                                             -6-