J & H Reinforcing & Structural Erectors, Inc.

Plain-English summary

J & H Reinforcing & Structural Erectors used a scissor lift for welding work at a library construction project in Huntington, West Virginia. The lift tipped when a wheel entered a 5.5-inch-deep offset, and the operator sustained a life-threatening injury. Chief Judge Irving Sommer found that the work surface contained the offset, lumber, and electrical stub-outs within the operator's work area. He rejected the company's employee-misconduct defense because J & H had no work rule addressing safe operation of lifts or mobile scaffolds and the area was not adequately checked for tip-over hazards. The mobile-scaffold item was affirmed as serious with a $3,000 penalty, while a second item was dismissed and vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.452(w)(6)(i); 29 C.F.R. § 1926.20(b)(2).
• Outcome: The mobile-scaffold item was affirmed as serious for $3,000; the second item was dismissed and vacated.
• Key point: A mobile scaffold's travel surface must be free of pits, holes, and obstructions, and an employer needs work rules and inspections that address those hazards.

Full text (OSHRC public release)

                          United States of America
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                     1120 20th Street, N.W., Ninth Floor
                        Washington, DC 20036-3419

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 98-0963
:
J & H REINFORCING & STRUCTURAL :
ERECTORS, INC. :

APPEARANCES:

           Donald K. Neely, Esquire                      J. B. Marshall, Jr., Esquire
           Philadelphia, Pennsylvania                    Portsmouth, Ohio
           For the Complainant.                          For the Respondent.

Before: Chief Judge Irving Sommer

                                DECISION AND ORDER

   This proceeding is 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.
§ 651 et seq. (“the Act”). In February of 1998, the Occupational Safety and Health Administration
(“OSHA”) inspected a work site in Huntington, West Virginia, where Respondent (“J & H”) was
engaged in steel erection; the inspection took place after an accident in which an employee of J & H
was seriously injured. As a result of the inspection, J & H was issued a serious citation. J & H
contested the citation, and a hearing was held on November 23, 1998. At the hearing, item 1b of the
citation was dismissed, leaving item 1a, which alleged a violation of 29 C.F.R. 1926.452(w)(6)(i).1
The OSHA Inspection
John Johnson, the OSHA compliance officer (“CO”) who conducted the inspection, went to
the site on February 13, 1998, pursuant to a media referral about the accident that had occurred on
February 11, 1998; the construction project involved the Marshall University Library in Huntington,

   1
    Item 1b, which alleged a violation of 29 C.F.R. 1926.20(b)(2), was dismissed upon the

parties’submitting a written stipulation of partial dismissal. (Tr. 4-5).
 2

and the accident had taken place in the rotunda area of the library. CO Johnson met with David
Pfister, the general contractor’s superintendent, who had taken photos of the scene after the accident.
He met next with Raymond Ball, the superintendent of J & H, who told the CO what had happened.
Ball and the CO then went to the rotunda area, which the CO videoed; the CO also inspected the
scissor lift the injured employee had been operating, and he noted the labels and manuals inside the
lift that warned about operating it on uneven surfaces. On February 17, 1998, the CO obtained
written statements from Ball and Gregory Sigler, another J & H employee who had been working in
the rotunda on the day of the accident. (Tr. 30-31; 35-36; 41-44; 54; 61-68; 76-77).
Based on his inspection, CO Johnson determined that on February 11, Ball had assigned Mark
Jones the job of welding in the rotunda from a scissor lift that had been borrowed from another
contractor at the site. Specifically, Jones was to weld “kicker braces” or “stiffeners” after Sigler and
another employee had put them in place between columns on the northwest and northeast sides of
the rotunda’s entryway. After completing the welding on the northwest side, Jones began moving the
lift, which he had lowered from 30 to 20.5 feet, to the northeast side. The entryway between these
two areas was a 5.5-inch-deep “offset” that was 7 feet wide and 14.5 feet long, and as Jones drove
the lift by the southeast corner of the offset one of the wheels went in, causing the lift to turn over.
Jones was tied off to the lift, but when it fell his head struck the floor and he sustained a life-
threatening injury.2 CO Johnson concluded that J & H had violated the cited standard because the
floor was not checked before Jones began his work and because of the offset and obstructions on the
floor, including two-by-fours, two-by-sixes, and various electrical “stub-outs.” C-2 is the CO’s
diagram of the rotunda area at the time of the accident. (Tr. 36-42; 45-61; 68-70; 75-79; 94-95).
Discussion
Item 1a alleges a violation of 29 C.F.R. 1926.452(w)(6)(i), which applies to mobile scaffolds.
The standard states as follows:
(6) Employees shall not be allowed to ride on scaffolds unless the following
conditions exist: (i) The surface on which the scaffold is being moved is within 3
degrees of level, and free of pits, holes, and obstructions.

    2
      CO Johnson testified that although employees must tie off to articulating boom lifts, there

is no tie-off requirement in regard to scissor lifts. (Tr. 49; 89-90).
 3

   To establish the alleged violation, the Secretary must show that (1) the standard applied to

the cited condition, (2) the employer violated the terms of the standard, (3) employees were exposed
to the cited condition, and (4) the employer had actual or constructive knowledge of the violation.
Astra Pharmaceutical Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981). J & H does not
dispute the applicability of the standard to the lift, but notes that there was no evidence that any
conditions on the rotunda floor would have caused the lift to move on a surface more than 3 degrees
off level. The CO conceded his lack of proof in this regard, stating that he would have needed an
inclinometer to obtain such information. (Tr. 105-07). However, it is clear from the record that the
basis of the citation was the offset and obstructions on the rotunda floor. Moreover, as I read it, the
standard has two separate requirements with which employers must comply. That is, the surface a
mobile scaffold moves on must be within 3 degrees of level, and the surface must in addition be free
of pits, holes and obstructions. Thus, the issue here is not whether the floor was within 3 degrees of
level, but, rather, whether the floor where Mark Jones drove the lift was free of pits, holes and
obstructions.
The photos taken by David Pfister plainly show one of the wheels of the overturned lift inside
a corner of the offset. See C-1(E)-(G). The photos also show pieces of lumber along the offset and
near the lift. See C-1(A)-(B); C-1(E)-(I). Finally, the photos show an electrical stub-out adjacent to
the lift wheels, see C-1(B) and (G), and C-2, the CO’s diagram, depicts eight more stub-outs in a row
in the area of the overturned lift; the CO testified that the stub-outs were 2 inches high and that the
one in C-1(B), (G) was 4 feet long. (Tr. 39-40; 46; 50-52; 55). The CO also testified that the offset
and obstructions were well within Jones’work area, based on where the lift was when it fell over and
what he learned during his inspection, and that they were tip-over hazards. (Tr. 74-75; 94).
J & H does not dispute the size or depth of the offset or the fact that the lift turned over
because one of its wheels went into the offset. J & H likewise does not dispute the presence of lumber
and electrical stub-outs in the rotunda area. J & H contends, rather, that the lumber and 4-foot-long
stub-out were located underneath the 18-foot-high second floor walkway, and that the lift, which was
extended to 20.5 feet at the time of the accident, could not have run over them. J & H also contends
that the offset and stub-outs were outside of Mark Jones’designated work area, and that the stub-
 4

outs in any case were not a hazard. Finally, J & H contends, in essence, that Jones’presence outside
of his designated work area was unpreventable employee misconduct.
In regard to J & H’s first contention, Gregory Sigler did not recall any lumber, but he
indicated that the 4-foot-long stub-out was under the second floor walkway and that the lift when
raised could not have driven into that area. (Tr. 202-03). In addition, David Pfister indicated that the
second floor walkway was 18 feet high and that the lumber and stub-out in his photos could have
been under the walkway; however, his testimony reflected uncertainty to the extent that, in my
opinion, it is inconclusive. (Tr. 11-20; 26). Moreover, although the CO agreed that there was a
second floor walkway around the rotunda, he was emphatic that it was not directly over the stub-out
and that there was no walkway or flooring over the offset area; he was also emphatic that the first
layer of beams in the rotunda was 30 feet above the ground level and that the lift could have run into
the lumber and stub-out. (Tr. 40-41; 46; 52; 55-56; 59-61; 74-75; 81-83; 94;109-10). On balance,
I conclude that the CO’s testimony is the more reliable evidence of record. His testimony is therefore
credited over that of Sigler and Pfister and J & H’s contention is rejected.
As to J & H’s contention that the stub-outs were not a hazard, Ball testified that some were
plastic and some were metal; he was unaware of Jones hitting any stub-outs, but indicated that the
lift would have “just snap[ped] them off.” (Tr. 158). Sigler, on the other hand, testified that Jones
some moments before the accident had run over one of the small stub-outs, like the one shown in C-
1(H), and that it simply bent over; he indicated that this stub-out and the 4-foot-long stub-out were
both metal. (Tr. 202-03; 207-09). Regardless, I concur with the CO’s opinion that the stub-outs were
obstructions within the meaning of the standard, in light of his extensive safety background and his
training and experience in cranes and mobile scaffolds. (Tr. 31-35; 75; 103-04). Further, even
assuming arguendo that the small stub-outs did not represent a tip-over hazard, I find that the large
stub-out, which was 4 feet long and evidently metal, did represent such a hazard.
Based on the foregoing, the Secretary has established three of the four elements set out supra,
that is, that the standard applied to the lift, that the terms of the standard were violated, and that
employee Mark Jones was exposed to the cited condition. As to the fourth element, knowledge, the
Secretary points to C-6, Ball’s statement, which the CO wrote out and Ball signed, and to Ball’s
testimony at the hearing. In this regard, I note Ball’s statement in C-6 that “[w]e walked in the area
 5

and I told [Jones] what I wanted welded. We didn’t check floor area. Been in and out of the area
constantly, walking. I’ve been in area constantly while setting the steel.” I also note Ball’s agreement
with J & H’s interrogatory response that he had “observed the area to be clean when he showed Mark
Jones where to work.” (Tr. 167). Finally, I note Ball’s testimony indicating that he had in fact
checked the rotunda floor that day and that he “didn’t see anything.” (Tr. 168-69). The Secretary
contends that the evidence is sufficient to demonstrate knowledge because the offset and obstructions
were obvious and Ball either knew or should have known of their presence on the rotunda floor.
However, as set out above, J & H contends that Jones drove the lift outside of his designated work
area and that his doing so was unpreventable employee misconduct.
Ball testified that Jones’ job that day was to weld permanently bracing that Sigler and the
other employee had installed and welded temporarily between the columns in the rotunda; he further
testified that Jones sat on the beams to weld the day before, that he asked Jones if he wanted to use
a lift, and that Jones said he did, whereupon Ball borrowed the lift from another contractor at the site.
According to Ball, Jones was not welding bracing on the columns to the immediate left and right of
the two columns forming the rotunda entryway, as indicated on C-2, the CO’s diagram, because that
welding was already done. Rather, Jones began welding at the point Ball marked with an “O” on the
left side of R-2, another diagram of the rotunda area, and was to weld the column bracing all the way
around the rotunda in a counterclockwise direction over to the corresponding point on the right side
of R-2; however, Jones was to go directly to that point on the right side of R-2 to assist Sigler and
the other employee if they asked him to, and Jones was driving the lift in reverse to that location when
the accident occurred. Ball said that he had given the CO this same information, that C-2 was
inaccurate, and that Jones had had no reason to be in the areas of the offset and obstructions. He also
said that Jones had gone into the rotunda entryway several times a day for several weeks, that he and
Jones had stood in the offset when he was telling Jones what he wanted done, and that he was certain
that Jones had been aware of the offset. (Tr. 138-57; 161; 173-75; 179-80).
J & H asserts that the above testimony of Ball shows that Jones was working outside of his
designated area when the accident occurred. I disagree. First, R-2, which Ball made with the help of
prior counsel on September 11, 1998, indicates that the bracing to the immediate left and right of the
rotunda entryway columns was in fact the bracing that Jones was to weld, and Ball’s testimony that
 6

this was a “mistake” was not persuasive.3 (Tr. 149; 162-66). Second, the CO was adamant that C-2
reflected his observations and measurements and what Ball and Sigler told him and, moreover, that
Ball and Sigler never said anything about misconduct or working around the rotunda in a
counterclockwise fashion. (Tr. 36-41; 70-71; 78-79; 85-89; 98-101; 104-05). Third, Ball’s written
statement was that “[w]e came out to area and I told [Jones] what 2 beams I wanted welded first,”
while Sigler’s written statement was that “[w]e had completed the northwest corner. Mark ...
[c]ompleted northwest weld. Paul and I moved to the northeast side. Mark was moving the lift.” See
C-6, C-9. Finally, although Ball denied it, Erica Jones, Mark Jones’wife, testified that Ball told her
at the hospital that Jones was not at fault and could not have seen the offset; further, both Erica Jones
and Jeff Humble, the couple’s minister, testified that Don Hadsell, J & H’s president, stated at the
hospital that Jones was not at fault, and Humble also testified that Hadsell told him that Jones could
not see the offset because it was covered with snow.4 (Tr. 126-35; 138; 157-58).
In view of the foregoing, I conclude that Jones was not working outside of his designated area
and that Jones drove the lift into the offset because he could not see it due to the presence of snow.5
I also conclude that the accident was not the result of unpreventable employee misconduct. As the
Secretary notes, this defense requires the employer to show that it had work rules designed to prevent
the violation, that it had adequately communicated the rules to employees, that it had taken steps to
discover violations, and that it had effectively enforced the rules when violations were discovered.
Jensen Constr. Co., 7 BNA OSHC 1477, 1479 (No. 76-1538, 1979). As the Secretary also notes,
she has established that J & H had no work rules to prevent the violation that occurred in this case.
Jones testified that he had had written scissor lift instruction during his apprenticeship training and
that in the two years preceding the accident he had operated scissor lifts two to three times a year for

    3
   Specifically, the lines on R-2 showing the bracing to the immediate left and right of the

entryway have notations reading, respectively, “angle welded 1st assist” and “angle welded at fall.”
4
Although Mark Jones was a witness at the hearing, he had no memory of what had happened
on the day of the accident; in addition, while Hadsell testified as to his belief that Jones was injured
because he was tied off, he did not deny making the statements set out above. (Tr. 115-16; 210-13).
5
The accident occurred between 8:00 and 8:30 a.m., and Pfister’s photos, taken about two
hours later, show that there was still some snow in the offset at that time. (Tr. 7-9; 109; C-1(E)-(G)).
 7

a total of approximately 80 hours. (Tr. 116-25). In addition, the CO testified that there were labels
and manuals inside the subject lift that warned users to check the work area for tip-over hazards and
to not operate the lift on uneven surfaces. (Tr. 57; 62-66; C-1(D); C-4-5). However, it is clear that
the work area in this case was not checked for tip-over hazards before Jones began using the lift.
Moreover, the CO testified that J & H had no safety rule in place in regard to the safe operation of
lifts or mobile scaffolds, and Ball himself admitted that there was nothing in the company safety
manual addressing this topic; Ball also admitted that he did not look at the lift’s operator’s manual
that morning or direct Jones to do so. (Tr. 71; 171-72).
On the basis of the record, the Secretary has shown all of the elements necessary to establish
the alleged violation. This citation item is accordingly affirmed as a serious violation, and the
proposed penalty of $3,000.00, which reflects the gravity of the violation as well as the size, history
and good faith of the employer, is assessed. (Tr. 76; 79-80; 108).
Conclusions of Law
1. Respondent, J & H Reinforcing & Structural Erectors, Inc., 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. 1926.452(w)(6)(i).
3. Respondent was not in violation of 29 C.F.R. 1926.20(b)(2).
Order
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Item 1a of Citation 1 is AFFIRMED as a serious violation, and a penalty of $3,000.00 is
assessed.
2. Item 1b of Citation 1 is VACATED.

                                                    Irving Sommer
                                                    Chief Judge

Date: