A. Hansen Masonry, Inc.

Plain-English summary

A. Hansen Masonry performed construction work in San Antonio, Texas. OSHA observed an employee making repeated trips on a twelve-foot scaffold whose southwest corner lacked guardrails, and the employee used no other fall protection. The judge found employer knowledge because the foreman knew the guardrails were missing and assigned the employee to the area. He rejected the unpreventable employee misconduct defense because Hansen did not prove that the scaffold rule had been adequately communicated to the employee or effectively enforced through discipline. The violation was properly classified as repeat based on a final order for a substantially similar scaffold fall-protection violation, and the judge assessed $2,800. A separate item alleging continued use of a leaking forklift was vacated because OSHA did not identify the leaking fluid or prove that the condition affected safe operation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(g)(1); 29 C.F.R. § 1926.451(g)(4)(i); 29 C.F.R. § 1926.601(b)(14)
• Outcome: Mixed. The repeat scaffold guardrail violation was affirmed with a $2,800 penalty, and the forklift-defect item was vacated.
• Key point: A prior final order for the same fall hazard can support a repeat classification, while an equipment-defect citation still requires proof that the observed condition falls within the standard and affects safe operation.

Full text (OSHRC public release)

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


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


 SECRETARY OF LABOR,


                          Complainant,


                               v.                              OSHRC DOCKET NO. 99-1359


 A. HANSEN MASONRY, INC., and its
 successors,


                           Respondent.



APPEARANCES:

         For the Complainant:
                  Richard Munoz, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas, Texas

         For the Respondent:

                   Allen Hansen, A. Hansen Masonry, Inc., San Antonio, Texas

Before:
Administrative Law Judge: James H. Barkley

                                               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, A. Hansen Masonry, Inc., and its successors (Hansen)[see; Tr. 35], at all times
relevant to this action maintained a place of business at 8150 Interchange Parkway, San Antonio,
Texas, where it was engaged in construction. Respondent admits it is an employer engaged in a
business affecting commerce and is subject to the requirements of the Act.
         On June 3, 1999 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Hansen s San Antonio work site. As a result of that inspection, Hansen was issued
citations alleging violations of the Act together with proposed penalties. By filing a timely notice of
contest Hansen brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
        On February 1, 2000, a hearing was held in San Antonio. The parties have briefed the issues
and this matter is ready for disposition.
                                Alleged Violation of    1926.451(g)(4)(I)
        Repeat citation 1, item 1 alleges:
29 CFR 1926.451(g)(4)(I): Guardrail systems were not installed along all open sides and ends on
scaffolds more than 10 feet above the ground or floor:

        (a) The employer did not ensure that employees were protected from falls while working on a
        scaffold.

HANSON MASONRY INC. was previously cited for a violation of this Occupational Safety and
Health standard or its equivalent standard 29 CFR 1926.451(g)(1) which was contained in OSHA
Inspection Number 300436797, Citation Number 01, Item Number 002, issued on 6/25/98, and became
a final order on 1/27/99.

        The Violation. Hansen does not dispute the existence of the cited conditions (Tr. 27, 55), but
argues that it had no knowledge of the violation.
Facts
        OSHA Compliance Officer (CO) Antonio Sanchez testified that when he arrived at Hansen s
jobsite at approximately 10:00 a.m. the morning of the inspection, he observed a Hansen employee,
Albert Leal, working on a 12 foot scaffold at the southwest corner of the building under construction
(Tr. 42, 124; C-2, C-3, C-4). The southwest corner of the scaffold was unguarded, and the employee
used no other means of fall protection (Tr. 41; Exh. C-1 through C-4). Upon interviewing workers on
the site, Sanchez learned that Hansen had earlier removed the guardrails from the south side of the
scaffold to use the area as a loading platform (Tr. 68, 78, 120). The general superintendent and owner,
however, complained about oil leaking from Hansen s forklift onto the concrete drive on the south side
of the building. Hansen was directed to load from the grass on the west side (Tr. 68, 120). The
guardrailing was not replaced on the south side before Leal began working in the area (Tr. 68, 78).
Sanchez testified that Leal, a mason tender, told him he made approximately four trips to the southwest
corner that morning to get bricks (Tr. 83, 121; Exh. C-8).
        Sanchez testified that although Hansen s foreman, Richard Oviedo (Tr. 93), had left the site
immediately prior to the OSHA inspection, he had assigned Leal to work in the unguarded area, and
knew that the guardrails were missing (Tr. 67-68, 118).
Discussion
        In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD 29239, p. 39,157 (No. 87-1359,
1991).
         Hansen admits the first three elements of the violation, arguing only that it was without
knowledge. CO Sanchez, however, testified that Hansen s foreman, Richard Oviedo, was aware of the
cited hazard. Oviedo did not testify, and Hansen, introduced no other witnesses with first hand
knowledge of the work site conditions. CO Sanchez testimony is, therefore, credited. The knowledge,
actual or constructive, of an employer’s supervisory personnel will be imputed to the employer, unless
the employer establishes substantial grounds for not imputing that knowledge. Ormet Corp., 14 BNA
OSHC 2134, 2138-39, 1991-93 CCH OSHD 29,254, p. 39,203 (No. 85-531, 1991).
         Employee Misconduct. In its defense, Hansen maintains that the violation was an isolated
incident of employee misconduct.
Facts
         Hansen selects and hires its own employees; Summit Professional Employer Organization, an
employee leasing service, administers the payroll, conducts jobsite inspections, and provides safety
training as requested by the employers that retain its services (Tr. 89, 110). Hansen s $Safety Manual
and Accident Prevention Program# is provided by Summit (Tr. 89).        Michael McGee, the director of
loss control for Summit, testified that in January 1998, Hansen s foreman, Richard Oviedo, participated
in a half day safety workshop on masonry construction hazards that Summit and Hansen put on for
Hansen s employees (Tr. 101). McGee testified that Summit was not requested to provide any other
training for Hansen (Tr. 104, 110). Summit does not administer Hansen s safety program on site and
makes no disciplinary decisions (Tr. 110). McGee testified that Hansen is responsible for the safety
program s enforcement (Tr. 111).
         McGee testified that Summit had conducted 13 jobsite safety inspections for Hansen in the 22
months Hansen has been a client (Tr. 98). McGee met with Oviedo during every jobsite inspection to
discuss safety conditions (Tr. 101). Summit did not inspect the jobsite at issue, but McGee testified
that Hansen is one of Summit s most safety conscious employers (Tr. 99, 112). McGee testified that he
found no guardrail infractions during his job site inspections (Tr. 113).
         In Summit s program, Tubular Steel Scaffold General Safety Requirements rule 11 states:
$GUARDRAILS AND TOEBOARDS REQUIRED IF ABOVE 10’ HIGH# (Tr. 90; Exh. R-1, orange
tab).
       Antonio Sanchez stated that Albert Leal was employed as a scaffold builder, as well as a mason
tender, and that it was his primary responsibility to ensure that the scaffold complied with guardrail
requirements (Tr. 92). McGee had neither first hand knowledge nor records indicating whether Leal
had been formally trained in scaffold safety (Tr. 110-11). Leal told Sanchez that he had received on the
job training about the hazards of working on scaffolds, stating that $[y]ou pick up on it as they tell you
what not & what to do# (Tr. 56, 75; Exh. C-8).
Discussion
       In order to establish an unpreventable employee misconduct defense, the employer must
establish that it had: established work rules designed to prevent the violation; adequately
communicated those work rules to its employees (including supervisors); taken reasonable steps to
discover violations of those work rules; and effectively enforced those work rules when they were
violated. New York State Electric & Gas Corporation, 17 BNA OSHC 1129, 1995 CCH OSHD
(91-2897, 1995).
       Hansen s evidence falls short of establishing the affirmative defense. Hansen established that it
had a work rule designed to prevent the violation, but the evidence did not establish whether that rule
was adequately communicated to Leal. Hansen introduced no evidence that Leal had any formal
training. Leal told CO Sanchez only that he $picked up# his knowledge of scaffold hazards as he
worked. The scope of his acquired knowledge was never made clear. Moreover, Hansen failed to
introduce any evidence of a disciplinary system or to otherwise demonstrate that its safety program was
enforced.
       Hansen failed to establish the affirmative defense of unpreventable employee misconduct. The
violation has been established.


       Repeat. A violation is repeated under section 17(a) of the Act if, at the time of the alleged
repeated violation, there was a final order against the same employer for a substantially similar
violation. Potlatch _Corporation, 7 BNA OSHC 1061, 1979 CCH OSHD 23,294 (16183, 1979). CO
Sanchez conducted an inspection of a Hansen work site in May of 1998, after which Hansen was cited
for a violation of 1926.451(g)(1), which requires that employees working on a scaffold more than 10
feet above a lower level be protected from falling (Tr. 59). That citation was settled; the settlement
was approved by the undersigned judge and was adopted as a final order of the Commission (Tr. 63;
Exh. C-9). Sanchez testified that though the standard cited in the earlier citation is not identical to the
one cited in this action, the May 1998 violation was substantially similar to the current citation. Both
violations involved a failure to provide adequate fall protection for employees working on scaffolds
higher than 10 feet (Tr. 59). Though the scaffold cited in the May inspection was 30 feet high, it too
was only partially guarded, and was missing guardrails on the sides (Tr. 60). The hazard, falls from a
height, were the same in both instances (Tr. 61).
        Because the May citation involved incomplete guardrailing on scaffolds, and created the same
hazard, i.e., falls from a height, it should have placed Hansen on notice of the need to take steps to
ensure that its scaffolding was fully protected. This judge finds that the violation cited here is
$substantially similar# to the earlier violation and so was correctly classified as $repeat.# See,
Caterpillar, Inc. v. Herman, 154 F.3d 400 (7th Cir. 1998).
        Penalty. The cited violation is classified as $repeat,# and a penalty of $2,800.00 is proposed.
Facts
        CO Sanchez testified that a fall from a height of 12 feet could result in fractures or death (Tr.
42). One employee, Leal, was exposed for a total of 20 to 30 minutes, during four trips to the
unguarded section of scaffolding (Tr. 83). CO Sanchez testified that the probability of a fall was
enhanced because Leal was pushing a wheelbarrow, which could have caused him to fall (Tr. 45).
        Sanchez testified that under OSHA guidelines, a 15% reduction in the penalty is available for
good faith, but that it was not applied in this case because Hansen had been cited for a similar violation
after a May OSHA inspection, as discussed above (Tr. 64-65). Because Hansen had a prior citation, no
reduction was made for history (Tr. 65).
Discussion


Taking into account the relevant factors, I find that the penalty proposed by the Secretary is
appropriate, and will be assessed.
                                 Alleged Violation of 1926.601(b)(14)
        Other citation 2, item 1 alleges:
29 CFR 1926.601(b)(14): All defects were not corrected before motor vehicle(s) were placed in
service:

        (a) The Lull forklift, used to lift the mortar and other materials to the 2nd level scaffold
        platform, was leaking fluid and not taken out of service until the defect was corrected.

Facts


        CO Sanchez testified that he observed a Hansen employee operating a Lull forklift from which
some kind of fluid was leaking (Tr. 47-48; Exh. C-6). Both Hansen s leadman, and the forklift
operator told Sanchez that a mechanic had been called the preceding day, but that they continued to use
the fork-lift while they waited for him to arrive (Tr. 49-50). Sanchez testified that he touched and
smelled the leaking fluid, and believed that it was diesel fuel, which could, under the right conditions,
ignite and/or explode (Tr. 52, 70, 73, 82). Sanchez admitted that he could not find the source of the
leak, and never ascertained where the fluid was coming from (Tr. 73, 82).
          Hansen maintains that a mechanic found that the leaking fluid was coolant from a radiator leak.
Sanchez stated that it wouldn t surprise him to find that the fluid was coolant, because $it could have
been any fluid from anywhere# (Tr. 76).
Discussion
          The cited standard states:
          (14) All vehicles in use shall be checked at the beginning of each shift to assure that the
          following parts equipment, and accessories are in safe operating condition and free of apparent
          damage that could cause failure while in use: service brakes, including trailer brake
          connections; parking system (hand brake); emergency stopping system (brakes); tires; horn;
          steering mechanism; coupling devices; seat belts; operating controls; and safety devices. All
          defects shall be corrected before the vehicle is placed in service. These requirements also apply
          to equipment such as lights, reflectors, windshield wipers, defrosters, fire extinguishers, etc.,
          where such equipment is necessary.

          Complainant cites a single case, Mayo Homes Co., 1989 OSHRC LEXIS 179 (No. 89-0355,
1989)(ALJ), in which a cited violation involved a vehicle defect not specifically listed in the cited
standard. In that case, the evidence established that the defect (broken glass in the right side door
window), could cause accidents. Here, however, the CO did not know what the leaking fluid was, and
only assumed the fluid was diesel fuel. The CO admitted that it was just as likely that the fluid was
coolant, as claimed by Hansen. The Secretary presented evidence of hazards associated with leaking
diesel fuel, but failed to demonstrate that leaking coolant posed a hazard to employee safety and/or
health.
          The Secretary failed to establish that the cited condition prevented the cited forklift from
operating safely. Citation 2, item 1 is, therefore, VACATED.
                                                   ORDER

1. Citation 1, item 1, alleging violation of 1926.451(g)(4)(I) is AFFIRMED as a $repeat# violation,
and a penalty of $2,800.00 is assessed.

2. Other citation 2, item 1, alleging violation of 1926.601(b)(14) is VACATED.




                                                        James H. Barkley
                                                        Judge, OSHRC
Dated: