Plumb Square & Lovell, and its successors

Plain-English summary

Plumb Square & Lovell employees framed a roof about 15 feet above the ground without fall protection. Judge Stanley M. Schwartz affirmed that serious violation even though the contractor mistakenly believed California's 15-foot rule governed the federal worksite. He reduced the penalty to $150 because the employer had tried in good faith to identify the applicable requirements and was willing to comply. An electrical item was vacated because the cited standard did not give fair notice that an insulated service drop lying on the roof was prohibited. A skylight item was also vacated because the Secretary did not prove employees entered or were likely to enter the area around the openings.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.416(a)(1), 1926.501(b)(1), and 1926.501(b)(4)(ii).
• Outcome: Serious roof-edge violation affirmed with a $150 penalty; electrical and skylight items vacated.
• Key point: Mistaking state requirements for federal rules did not excuse an admitted fall-protection violation, but good-faith compliance efforts reduced the penalty.

Full text (OSHRC public release)

                                                           United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                                1244 North Speer Boulevard, Room 250
                                                      Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                           v.                              OSHRC DOCKET NO. 98-0982

PLUMB SQUARE & LOVELL,
Respondent.

APPEARANCES:

      For the Complainant:
               Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department of Labor, San Francisco, California

      For the Respondent:
               Gregory Lovell, Plumb Square & Lovell, Coronado, California

Before: Administrative Law Judge: Stanley M. Schwartz

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Plum Square & Lovell (Lovell), at all times relevant to this action maintained a
place of business at Stuart Mesa Elementary School, Camp Pendelton, California, where it was engaged
in construction. Respondent admits it is an employer. Because construction is in a class of activity
which as a whole affects interstate commerce, Lovell is subject to the requirements of the Act. See,
Clarence M. Jones d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No.
77-3676, 1983).
On March 20, 1998 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Lovell’s Camp Pendelton work site. As a result of that inspection, Lovell was issued
citations alleging violations of the Act together with proposed penalties. By filing a timely notice of
contest Lovell brought this proceeding before the Occupational Safety and Health Review Commission
(Commission).
 On October 30, 1998, an E-Z hearing was held in San Diego, California. This matter is ready
for disposition.
Alleged Violation of §1926.416(a)(1)
Citation 1, item 1 alleges:
29 CFR 1926.416(a)(1): Employees were permitted to work in proximity to electric power circuits and
were not protected against electric shock by deenergizing and grounding the circuits or effectively
guarding the circuits by insulation or other means:

    A) Plumb Square & Lovell, Stuart Mesa Elementary School; Employees working on roof in
    close proximity to service drop were exposed to electric shock.

Facts
Scott Knowles, the OSHA Compliance Officer (CO), testified that On March 20, 1998 he
inspected Lovell’s work site, located at Camp Pendelton, a federal installation (Tr. 13-14).
CO Knowles testified that he observed Lovell’s employees sawing and framing on a roof near a
service drop (Tr. 16). The service drop, an insulated electrical wire being used to supply power to the
employees’portable power tools, lay across the walk area of the roof (Tr. 16-17). Knowles testified
that the wire posed a tripping hazard (Tr. 19). Because the service drop was energized, had the
insulation been damaged from being walked on or by a power tool, employees could suffer electrical
burns or shock (Tr. 17-19). The hazard was abated during the inspection by Lovell employees, who
raised the service drop over the heads of the employees (Tr. 20).
Lovell argues that the cited service drop is insulated (Exh. R-11). Lovell maintains it is the
practice at construction sites to work from service drops running along the ground, and that it is no
more hazardous to run a line along the roof than on the ground (Tr. 48-49).
Discussion
The cited standard provides:

    No employer shall permit an employee to work in such proximity to any part of electric power
    circuit that the employee could contact the electric power circuit in the course of work, unless
    the employee is protected against electric shock by deenergizing the circuit and grounding it or
    by guarding it effectively by insulation or other means.

    The service drop noted by the CO was insulated. Nothing in the record suggests that the

insulation was inadequate for its intended purposes; the CO’s only concern was that the drop could be
damaged as it lay on the ground. Based on my review of the language contained in §1926.416(a)(1),
and Commission cases concerning that standard, I conclude that §1926.416(a)(1) is intended to prevent

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employee exposures to uninsulated, energized power lines, where contact with such lines may result in
electrocution. The standard does not, on its face, address the guarding of insulated lines.
I find that the cited standard is inapplicable to the cited circumstances in that nothing in that
standard provides the employer with fair warning that the cited condition is proscribed. Citation 1, item
1 is vacated.

                              Alleged Violation of §1926.416(a)(1)

    Citation 1, item 2 alleges:

CFR 1926.501(b)(1): Each employee on a walking/working surface with unprotected sides or edges
which is 6 feet or more above a lower level was not protected from falling by the use of guardrail
systems, safety net systems or fall arrest systems.

    a) Plumb Square & Lovell, Stuart Mesa Elementary School: Framers working from roof without
    any fall protection were exposed to falls of 15 feet.

Facts
CO Knowles testified that Lovell’s framers worked on the roof, which was approximately 15
feet off the ground, without the benefit of fall protection (Tr. 20-24). Knowles stated that the ground
on the site was hard, compacted soil or concrete, and that a 15 foot fall would likely result in broken
bones and/or fractures (Tr. 24-25).
Lovell argues that the height of the cited structure does not exceed 15 feet high at any point.
Lovell argues that under California’s OSHA standards, fall protection is required only for falls in excess
of 15 feet. Gregory Lovell, Respondent’s owner, testified that he was told by the general contractor
Taylor & Ball, that California OSHA had jurisdiction over the work site, and that no fall protection was
necessary (Tr. 50). Lovell testified that they had fall protection available on the site (Tr. 54).
Discussion
Lovell admits the cited violation, but states that he would have complied had he been aware that
Federal OSHA had jurisdiction over his work site.
It is well settled that the employer's lack of knowledge is a defense to an established violation
only when the employer was unaware of the conditions in their workplace; the employer is presumed to
be familiar with the requirements of the law. Ormet, 14 BNA OSHC 2134, 1991-93 CCH OSHD
¶29,254 (85-531, 1991). Lovell’s mistaken belief that California had jurisdiction over his work site,
therefore, does not excuse the cited violation.

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Moreover, the violation is “serious” as defined by §17k of the Act. The unrebutted testimony of
the CO establishes that the violative condition or practice gives rise to a "substantial probability" of
death or serious physical harm. Nonetheless, the evidence establishes that Lovell did attempt, in good
faith, to ascertain which safety standards were in effect. Because Lovell demonstrated his willingness to
comply with the spirit of the Act, I find that a minimal penalty, in the amount of $150.00, is appropriate
to effect the Act’s purposes.
Alleged Violation of §1926.501(b)(4)(ii)

    Citation 1, item 3 alleges:

29 CFR 1926.501(b)(4)(ii): Each employee on a walking/working surface was not protected from
tripping in or stepping into or through holes (including skylights) by covers:

    a) Plumb Square & Lovell, Stuart Mesa Elementary School: Framers building from roof were
    not protected from falling through skylight holes.

Facts
CO Knowles testified that in the course of their work Lovell employees walked past four
skylights 93 ½ x 93 ½ square (Tr. 27-28; Exh. C-11). Knowles stated that although there was
scaffolding approximately seven feet beneath some of the skylights, an employee’s fall would not
necessarily be broken. Knowles testified that he could fall all the way to the ground, resulting in broken
bones and/or death (Tr. 29, 31).
Greg Lovell testified that the roof where the skylights were located had been completed, and
that his carpenters had been instructed not to walk across the area because of the possibility of
damaging the asphalt roofing (Tr. 40-43). Lovell testified that the prohibition against walking on the
finished product is standard procedure, and that he was present on the roof to enforce the policy (Tr.
42-43). The only reason his employees were on the roof at all was to nail down some heads that were
popping through (Tr. 43-44). CO Knowles admitted that he had not seen any of Lovell’s employees
walk across the open roof (Tr. 40).
Discussion
In order to show employee exposure, the Secretary must prove that employees have been, are,
or will be in zones of danger during either their assigned working duties, their personal comfort
activities while on the job site, or their movement along normal routes of ingress to or egress from their
assigned workplaces. Carpenter Contracting Corp. 11 BNA OSHC 2027, 1984 CCH OSHD ¶29,950
(No. 81-838, 1984).

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The CO did not see any employees walking in the area of the skylight. Complainant failed to
introduce any other evidence establishing that Lovell’s employees would have any reason to be in the
zone of danger. Because the Secretary failed to establish employee exposure to the violative condition,
citation 1, item 3 is vacated.
ORDER

1. Citation 1, item 1, alleging violation of §1926.416(a)(1) is VACATED.

2. Citation 1, item 2, alleging violation of §1926.501(b)(1) is AFFIRMED as a “serious” violation
   of the Act, and a penalty of $150.00 is ASSESSED.

3. Citation 1, item 3, alleging violation of 1926.501(b)(4)(ii) is VACATED.

                                                   Stanley M. Schwartz
                                                   Judge, OSHRC
   

Dated:

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