The Haskell Company

Plain-English summary

The Haskell Company was the general contractor expanding a pilot training center in Savannah, Georgia. OSHA found Haskell's employee working 12 feet above the ground on an exterior tubular-frame scaffold with wide gaps in the planking, missing guardrails, and no access ladder. The superintendent assigned the employee to the work and knew that the masonry subcontractor was dismantling the scaffold, but did not ensure that the employee remained protected. The judge found that reasonable diligence would have revealed the visible hazards and affirmed serious violations for planking, access, and fall protection. OSHA also alleged similar planking and guardrail conditions on an interior mobile scaffold used only by a subcontractor's employee, but those instances were vacated as to Haskell because they were not in plain view, may have just arisen, and had not appeared during earlier inspections. Each citation item remained affirmed based on the exterior scaffold, with a reduced penalty of $2,500 per item, totaling $7,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(b)(1) (fully planked scaffold platforms), § 1926.451(e)(1) (safe scaffold access), and § 1926.451(g)(1) (fall protection on scaffolds)
• Outcome: Affirmed. All three serious items were affirmed based on the exterior scaffold, with penalties of $2,500 each; the mobile-scaffold allegations involving only a subcontractor's employee were vacated for lack of knowledge.
• Key point: A general contractor must use reasonable diligence to protect its own employee from visible scaffold hazards, while liability for a subcontractor-only condition still depends on whether the contractor could reasonably detect it.

Full text (OSHRC public release)

SECRETARY OF LABOR,

      Complainant,

       v.

The Haskell Company,

      Respondent.


OSHRC Docket No. 99-2191


APPEARANCES:

 Frances B. Schleicher, Esq.,Office of the Solicitor,
 U.S. Department of Labor, Atlanta, Georgia
 For the Complainant

 J. Larry Stine, Esq.
 Wimberly, Lawson, Steckel, Nelson & Schneider, P.C.
 Atlanta. Georgia
 For the Respondent

Before: Administrative Law Judge Ken S. Welsch

                                           DECISION AND ORDER
       The Haskell Company (THC), a design and construction company, contracted to expand
two existing buildings for a pilot training center in Savannah, Georgia. On October 22, 1999,
Occupational Safety and Health Compliance Officer Luis Ramirez inspected the project. As a
result of the inspection, on November 3, 1999, THC received a serious citation for alleged
scaffolding violations. THC timely contested the citation.
       The citation alleges serious violations of 29 C.F.R. § 1926.451(b)(1) (item 1) for failing to
fully plank the tubular-frame scaffold1 and the mobile scaffold; 29 C.F.R. § 1926.451(e)(1) (item



       1
           Also referred to as a prefabricated steel exterior scaffolding (Tr. 36, 52).

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2) for failing to have an access ladder to the tubular-frame scaffold; and 29 C.F.R. §
1926.451(g)(1) (item 3) for failing to have adequate guardrails on the tubular-frame scaffold2 and
the mobile scaffolds. Each alleged violation proposes a penalty of $4,500.
        The hearing was held March 9, 2000, in Savannah, Georgia. The parties stipulated
jurisdiction and coverage (Tr. 5). The parties filed post-hearing briefs.
        THC denies the violations. THC argues that its superintendent did not know and could
not have known of the scaffolding violations involving its employee on the tubular-frame scaffold
and a subcontractor’s employee on the mobile scaffold.
        THC’s argument regarding its employee is rejected. THC should have known of the
scaffolding violations on the tubular-frame scaffold which exposed its employee to a fall hazard,
but not the subcontractor’s employee, on the mobile scaffold.


                                                 The Inspection
        THC is in the business of designing and constructing buildings (Tr. 31). Its corporate
office is in Jacksonville, Florida (Tr. 175). THC employs in excess of 250 employees (Tr. 85).
        In March, 1999, THC, as general contractor, was engaged by Gulfstream Aerospace to
expand its training center for pilots in Savannah, Georgia (Tr. 31-32, 48). THC’s work involved
two buildings (Tr. 137, 175). Forrest Foster was THC’s construction superintendent in charge of
the project (Tr. 13, 16). At the time of OSHA’s inspection in October, 1999, THC had five
employees working at the project including Superintendent Foster (Tr. 33, 50). Also, THC
contracted work to subcontractors (Tr. 33-34).
        Culver Masonry was contracted by THC to construct the exterior block walls (Tr. 34).
To construct the block walls, Culver erected tubular-frame scaffolding around the exterior (Exhs.
C-1, C-3; Tr. 11, 34-35, 52, 64, 78). After Culver erected the block wall, two of THC’s
employees did touch-up finishing work on the wall (Tr. 33, 35-36).




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           Secretary’s motion to amend the description of the tubular-form scaffold in the northeast corner of the
pool area to more accurately identify to location of the missing guardrails, is granted. The motion conforms to the
record and the issue was tried by implied consent (Tr. 80, 116, 120-121). Respondent did not oppose the motion.

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       THC also engaged Center Brothers to do the interior framing and sheet rock work (Tr.
50). Center Brothers used a mobile scaffold (Tr. 14, 83).
       On October 22, 1999, OSHA Compliance Officer (CO) Luis Ramirez initiated a
programmed inspection of THC’s project (Tr. 47-48). CO Ramirez arrived at approximately 8:00
a.m. and met with Gulfstream (Tr. 48). He was then taken to the construction site at
approximately 10:30 a.m. When he arrived, CO Ramirez observed THC’s employee, Willie
Schofield, on the tubular-frame scaffold on the exterior of Building D, northeast corner of the
pool building. Schofield was touching up and cleaning the exterior concrete block wall (Tr. 12,
40, 135). He was approximately 12 feet above ground level without any fall protection (Exhs. C-
1, C-3; Tr. 49, 77-78, 120). CO Ramirez observed that the scaffold was not fully planked with
openings between planks greater than one inch, two sections of guardrails were missing and there
was no access ladder (Tr. 54, 66, 74-75, 78, 80, 120).
       CO Ramirez than proceeded with Superintendent Foster to a storage room inside Building
D, where he observed a mobile scaffold used by an employee of Center Brothers (Exh. C-4; Tr.
14, 68-69). The Center Brothers’ employee was working approximately 14 feet above ground
level without fall protection (Tr. 67, 69, 83). CO Ramirez observed that the mobile scaffold was
not fully planked and lacked guardrails (Exh. C-4; Tr. 15, 70, 72, 83).
       As a result of the inspection, a serious citation was issued to THC for the alleged
scaffolding violations involving the exterior tubular-frame scaffold at the pool building and the
mobile scaffold in the storage room.


                           Item 1 - Alleged Violation of § 1926.451(b)(1)
       The citation alleges that the tubular-frame scaffold at the northeast corner of the pool
building and the mobile scaffold in the storage room were not fully planked. Section
1926.451(b)(1) provides:
               Each platform on all working levels of scaffolding shall be fully
               planked or decked between the front uprights and the guardrail
               supports . . .




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       Subsection (i) requires that each plank in the platform be “installed so that the space
between adjacent units and the space between the platform and the uprights is no more than 1
inch (2.5 cm) wide.”
       CO Ramirez testified that the space between the wooden planks on the tubular-frame
scaffold at the pool building was greater than one inch. His determination was based on
measuring a comparable distance on the ground. He did not climb onto the scaffold. Ramirez
could not recall the exact distance or the number of spaces that exceeded one inch (Tr. 66, 118-
120). The exposed THC employee, Willie Schofield, testified that the space between planks was
6-8 inches (Tr. 182). Schofield was working on the platform, 12 feet above ground level (Tr. 54).
       The mobile scaffold used by Center Brothers in the storage room was also not fully
planked. The planking was less than half the width of the scaffold (Exh. C-4; Tr. 69-70). The
Center Brothers’ employee was standing on a 24-inch wide platform which did not cover the
width of the scaffold at the level where the employee was standing (Tr. 70, 72). The employee
was installing metal studs and was 14 feet above ground level (Tr. 14-15, 69).


                          Item 2 - Alleged Violation of § 1926.451(e)(1)
       The citation alleges that the exterior tubular-frame scaffold at the northeast corner of the
pool building did not have an access ladder. Section 1926.451(e)(1) provides, in part:
               When scaffold platforms are more than 2 feet (0.6 m) above or
               below a point of access, portable ladders, hook-on ladders, stair
               towers . . . shall be used. Cross braces shall not be used as a means
               of access.

       The scaffold platform in the northeast corner of the pool building was 12-feet above
ground level. THC’s employee, Willie Schofield, was working on the scaffold (Exh. C-1; Tr. 53,
120). At the time of OSHA’s inspection, there was no ladder to access the scaffold platform (Tr.
7).
       According to CO Ramirez, Schofield stated during the inspection that he climbed the
scaffold frame to access the platform (Tr. 98, 104).




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       Schofield denied making the statement to CO Ramirez. He testified that he used a ladder
in the morning to access the scaffold but the ladder was removed at the time of OSHA’s
inspection. He did not see it removed and did not see it on the ground (Tr. 179-180, 199).
       There is no dispute that Schofield climbed down the scaffold’s frame during OSHA’s
inspection (Tr. 74, 95, 195). Schofield was requested to come down the scaffold by
Superintendent Foster (Tr. 182).


                         Item 3 - Alleged Violation of § 1926.451(g)(1)
       The citation alleges that the tubular-frame scaffold and mobile scaffold lacked adequate
guardrails. Section 1926.451(g)(1) provides:
               Each employee on a scaffold more than 10 feet (3.1 m) above a
               lower level shall be protected from falling to that lower level.

       THC’s employee, Willie Schofield, was working 12 feet above ground level at the second
and third sections of the tubular-frame scaffold at the pool building. The second and third
sections of the scaffold were missing guardrails (Exh. C-3; Tr. 80, 116). Willie Schofield worked
in the area where there was no guardrail (Tr. 199). Schofield was not wearing fall protection (Tr.
15, 49).
       The mobile scaffold used by Center Brothers in the storage room of Building D was 14
feet above ground level (Exh. C-4; Tr. 68-69, 109). Superintendent Foster acknowledges that the
scaffold did not have guardrails and the employee was not wearing fall protection (Tr. 15, 111-
112, 136).
                                            Discussion
               The Secretary has the burden of proving a violation.
               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 (i.e., the employer either
               knew or, with the exercise of reasonable diligence could have
               known, of the violative conditions).


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Atlantic Battery Co., 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994).
       THC does not dispute the application of the scaffolding standards to the tubular-frame
scaffold at the pool building and mobile scaffolds in the storage room; the lack of adequate
planking, guardrails and access ladder on the scaffolds; and that the employees were exposed to
fall hazards from the scaffolds (Tr. 7-8; THC’s Post-Trial Brief).
       The sole issue raised by THC is whether it had actual or constructive knowledge of the
violative conditions. THC asserts that it lacked knowledge of the conditions because the
scaffolding belonged to subcontractors and THC’s superintendent was not present at the
locations when the violations occurred.


                               Knowledge of Violative Conditions
       In order to establish a violation, the Secretary must show that the employer knew or, with
the exercise of reasonable diligence, could have known of a hazardous condition. Dun Par
Engineered Form Co., 12 BNA OSHA 1962, 1965-1966 (No. 82-928, 1986). Reasonable
diligence includes adequate supervision of employees and the formulation and implementation of
training programs and work rules designed to ensure that employees perform their work safely.
Mosser Construction Co., 15 BNA OSHA 1408, 1414 (No. 89-1027, 1991).
       When a supervisory employee has actual or constructive knowledge of the violative
conditions, knowledge is imputed to the employer. Dover Elevator Co., 16 BNA OSHA 1281,
1286 (91-862, 1993). “Because corporate employers can only obtain knowledge through their
agents, the actions and knowledge of supervisory personnel are generally imputed to their
employers, and the Secretary can make a prima facie showing of knowledge by proving that a
supervisory employee knew of or was responsible for the violation.” Todd Shipyards Corp., 11
BNA OSHA 2177, 2179 (No. 77-1598, 1984).


Tubular-Frame Scaffold at Pool Building
       The record establishes THC’s constructive knowledge of the exterior scaffold at the pool
building. The touch-up work by THC employee, Willie Schofield, on the scaffold was in the
open and in plain view. The scaffold was on the exterior of the building. The scaffold was


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located adjacent to a road which was used to enter and exit the project. It was also in view of the
superintendent’s trailer, which was approximately 100 feet away (Exhs. C-1, C-3; Tr. 55, 76).
       Superintendent Foster assigned Schofield to do the touch-up work on the scaffold (Tr.
99, 178, 188-190). Foster was present at the job site. On the day of OSHA’s inspection,
Schofield had been on the scaffold for approximately three hours; from 7:00 a.m. until 10:00
a.m., when CO Ramirez arrived (Tr. 48, 178). Schofield saw Superintendent Foster when he
came to work in the morning (Tr. 43, 178, 188, 191). Schofield indicated that he had been doing
touch-up work for two days (Tr. 178).
       Superintendent Foster testified that he had not inspected the scaffold at the pool building
in the morning because he was inside the building where they were preparing to pour a concrete
slab (Tr. 22, 126). There is no evidence that Foster saw the exterior scaffold while Schofield
was working.
       However, with reasonable diligence, Foster should have known the unsafe condition of
the scaffold. According to Schofield, the brick mason contractor, Culver Masonry, was
dismantling the scaffold while he was doing the touch-up work (Tr. 180). He stated that the
contractor removed the guardrail, braces and planking from areas where he was not working (Tr.
179-180, 183-184). The contractor also removed the ladder (Tr. 179, 194-196). Superintendent
Foster was aware that Culver Masonry was dismantling the scaffold while Schofield was
working on it (Tr. 22-23).
       There is no showing that Foster took any action to ensure that his employee’s safety was
not affected by the dismantling. THC, as general contractor, has an obligation to protect the
safety of its employees from unsafe conditions although created by a subcontractor. Foster told
CO Ramirez that the scaffold was in the same condition as when he assigned Schofield to work
on it (Tr. 82, 99). Also, the record indicates that the guardrail may have been removed the day
before OSHA’s inspection (Tr. 29-30).
       Except for the morning of OSHA’s inspection, Superintendent Foster inspected the
project daily and had the authority to stop any unsafe work practice that he observed (Tr. 193-
194). He was in a position to ensure that the subcontractor’s dismantling of the scaffold would
not affect the safety of his employee. He should have known where the dismantling was taking
place and where his employee was working on the scaffold. He was the person ultimately

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responsible for safety on the entire job site, particularly with regard to THC’s own employees,
such as Willie Schofield (Tr. 13, 51, 138-139, 173). Foster has 30 years of construction
experience (Tr. 16).
       Despite a safety program with weekly safety meetings, daily worksite inspections and a
safety manual, the record indicates that THC’s safety training for its employees was inadequate
(Exh. R-4; Tr. 28, 160). THC employee, Willie Schofield, was on a scaffold with inadequate
planking and guardrails. Schofield had been employed by THC as a cement mason for 19 years
and had received its safety training (Tr. 177, 184). Even with THC’s safety training, Schofield
climbed down the frame of the scaffold without a ladder in front of Superintendent Foster and
the OSHA compliance officer. There is no showing that Schofield complained or was aware of
the unsafe scaffolding. Also, the record does not show that Schofield was warned or disciplined
for violating any THC’s safety rules.
       According to CO Ramirez, Superintendent Foster stated that he had completed an
inspection of the entire job site that morning (Tr. 89-90). Foster was coming from the storage
room when he arrived (Exh. C-2; Tr. 55-57). Although Foster denies inspecting the scaffold that
morning, Foster was aware that his employee had started to work on the scaffold.
       The scaffolding violations involving the tubular-frame scaffold at the pool building are
affirmed.


Scaffold at Storage Room
       In the storage room, an employee of Center Brothers used a mobile scaffold to install
metal studs (Tr. 14, 83-84). The Center Brothers’ employee was the only employee exposed to
the alleged scaffolding violations. There is no showing that THC’s employees ever used the
mobile scaffold. The scaffold apparantly belonged to Center Brothers and Center Brothers was
responsible for the lack of planking and guardrail.
       With regard to the exposure of a subcontractor’s employee to an unsafe condition, THC’s
responsibility, as general contractor, differs from its own employees. An employer may be in
violation of a §5(a)(2) standard, such as scaffolding, even if none of its own employees are
exposed. Flint Engineering & Construction Co., 15 BNA OSHA 2052, 2055 (No. 90-2873,
1992). The Commission recognizes that an employer is responsible for violations of other

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employers to which the other employer’s employees alone are exposed where it could be
reasonably expected to prevent or detect and abate the violations due to its supervisory authority
and control over the worksite. Red Lobster Inns of America, Inc., 8 BNA OSHA 1762, 1763
(No. 76-4754, 1980). The key is the recognition that “safety of all employees can best be
achieved if each employer at multi-employer worksite . . . abate hazardous conditions under its
control.” Harvey Workover, Inc., 7 BNA OSHA 1687, 1689 (No. 76-1408, 1979).
       A subcontractor such as Center Brothers was required by its contract with THC to abide
by OSHA’s safety rules, and there was a protocol for dealing with violations (Exh. R-7; Tr. 162-
163). Foster conducted safety meetings every Tuesday, which all subcontractors and their
employees were invited to attend (Tr. 28). THC required subcontractors such Center Brothers to
hold their own safety meetings and provide written evidence of its meeting if the subcontractor
did not attend THC’s weekly safety meeting, (Tr. 28).
       Superintendent Foster inspected the worksite daily and had the authority to stop any
unsafe work practice that he observed (Tr. 17, 193-194). He was the person ultimately
responsible for safety on the entire job site (Tr. 51, 171-173). His inspections were done at
varying times to prevent contractors from anticipating his arrival (Tr. 150).
       Foster testified that he had not inspected the mobile scaffold in the storage room that
morning because he was in the interior of the building where they were preparing to pour a
concrete slab (Tr. 22, 126). There was a wall between the area where Foster was observing the
concrete pour and the storage room where the mobile scaffold was located. It was impossible
for him to see inside the storage room (Exh. C-2; Tr. 140-141). Also, the record does not
establish how long the Center Brothers’ employee was on the mobile scaffold prior to OSHA’s
inspection. The employee’s work on the scaffold may have just started.
       Superintendent Foster testified that he had not observed any prior scaffolding violations
by Center Brothers (Tr. 24-25, 170). When Foster had inspected the mobile scaffold previously,
the scaffold was fully planked and guarded or when pipes and ducts in the structure made such
protection impossible, the employees wore safety harnesses and were tied-off (Tr. 24-25).
       There is no showing that THC should have detected the scaffolding violations created by
Center Brothers. The mobile scaffold was not in plain view. Superintendent Foster had not
previously observed the scaffold unsafe and failed to require compliance.

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        The alleged violations involving the mobile scaffold in the storage room are vacated as to
THC.


                                        Serious Classification
        Section 17(k) of the Occupational Safety and Health Act, in pertinent part, provides:

                [A] serious violation shall be deemed to exist in a place of
                employment if there is a substantial probability that death or serious
                physical harm could result from a condition which exists, or from
                one or more practices, means, methods, operations, or processes
                which have been adopted or are in use, in such place of employment
                unless the employer did not, and could not with the exercise of
                reasonable diligence, know of the presence of the violation.

        In determining whether a violation is serious, the issue is not whether an accident is likely
to occur, but whether the result of an accident would likely cause death or serious harm.
Whiting-Turner Contracting Co., 13 BNA OSHA 2155, 2157 (No. 87-1238, 1989).
        On the tubular-frame scaffold at the pool building, THC’s employee Schofield was
working 12 feet above ground level. A fall from that height because of the lack of planking,
access ladder or guardrail would cause serious injury or possible death. THC should have known
of the violative conditions as to its employee. The violative conditions were in plain view and
observable. Also, THC assigned the employee to work on a scaffold being dismantled. The
scaffolding violations are serious.


                                        Penalty Consideration
        The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
        THC is a large employer with in excess of 250 employees (Tr. 85). It performs work
throughout the nation. One employee was exposed to the scaffolding violations. THC is entitled
to credit for history in that there were no prior serious citations (Tr. 85).



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          A penalty of $2,500 is reasonable for violation of §1926.451(b)(1). One employee was
exposed to a fall hazard of 12 feet due to the lack of full planking. The plank spacing was 6-8
inches.
          A penalty of $2,500 is reasonable for violation of § 1926.451(e)(1). One employee was
exposed to a fall hazard of 12 feet due to the lack of an access ladder. The employee’s failure to
understand the hazard is demonstrated by his climbing down the scaffold frame in front of THC’s
superintendent. Although he was directed to exit the platform, there is no showing that he
requested a ladder.
          A penalty of $2,500 is reasonable for violation of § 1926.451(g)(1). One employee was
exposed to a fall hazard of 12 feet due the lack of guardrails. The employee was within 5 feet of
the exposed edge of the platform.

                                     FINDINGS OF FACT AND
                                     CONCLUSIONS OF LAW

          The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.


                                               ORDER
          Based upon the foregoing decision, it is ORDERED that serious Citation 1:
          1.     Item 1, alleged violation of § 1926.451(b)(1), is affirmed and a penalty of $2,500 is
assessed.
          2.     Item 2, alleged violation of § 1926.451(e)(1), is affirmed and a penalty of $2,500 is
assessed.
          3.     Item 3, alleged violation of § 1926.451(g)(1), is affirmed and a penalty of $2,500
is assessed.



                                                      /s/
                                                KEN S. WELSCH
                                                Judge


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Date:   August 14, 2000




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