SECRETARY OF LABOR,

Complainant,

v.

FRED C. KROEGER & SONS,

Respondent.

OSHRC Docket No. 88-0832

ORDER

The above cited action was directed for review before the occupational Safety and Health Review Commission by Former Chairman E. Ross Buckley on March 8, 1989 from a decision by Administrative Law Judge Louis G. LaVecchia dated February 1, 1989. The Secretary of Labor has filed a Notice to Withdraw Item 2 of Citation 1 pursuant to Commission Rule 102, 29 C.F.R. § 2200.102.

Having reviewed the official record in this case, the Commission construes the Secretary's Notice to Withdraw as a Motion to Withdraw Item 2 of Citation 1 and grants the motion. In addition, the Commission sets aside the Judge's decision to the extent that it rules on Item 2 of Citation 1, the withdrawn citation.

On June 19, 1989, while this case was still pending before the Commission, the Respondent wrote to the Commission and asked it to "read the entire transcript of the hearing and [to] review copies of material previously sent to you. . . . " The Commission construes this letter as a request that the commission review the judge's affirmance of citation item no. 1. Because former chairman Buckley's direction for review "establishe[d] jurisdiction in the Commission to review the entire case," see 29 C.F.R. § 2200.92 (a), the Commission has the authority to review citation item no. 1. The Commission declines to exercise that authority, however, because the Respondent neither petitioned for discretionary review of the Judge's affirmance of that item nor presented any reasons in its June 19 letter why the judge's decision should be reversed. We therefore affirm item 1 of citation 1.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: May 24, 1990

SECRETARY OF LABOR,

Complainant,

v.

FRED C. KROEGER & SONS,

Respondent.

OSHRC Docket No. 88-0832

APPEARANCES:

Michael H. Olvera, Esquire, for the Department of Labor

Fred C.Kroeger, Pro Se, for the Respondent.

DECISION AND ORDER

Louis G. LaVecchia, Judge

This proceeding arises under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. sec 651 et seq.), also referred to as the "Act".

The respondent seeks review of a citation issued against it in March 1988 following an inspection performed by a compliance officer of the Occupational Safety and Health Administration ("OSHA") on January 26-27, 1988. The inspection took place after the issuance of a warrant against the general contractor at a construction site. The respondent was a sub-contractor, engaged in bricklaying activities at the time, at a San Antonio church.

A hearing was held on September 13, 1988 in San Antonio. Briefs were not filed by the parties.

The citation alleges that the respondent violated the safety standard set forth at 29 CFR 1926.451(a)(13) in that no access ladder or equivalent safe access to scaffolds was provided for employees exposed to fall hazards of up to 39 feet. It is further alleged that the respondent violated the safety standard set forth at 29 CFR 1926.451(d)(10) in that standard guardrails and toeboards were not installed at all open sides and ends on tubular welded frame scaffolds more than 10 feet above the ground, exposing the employees to the hazard of a fall of 11 fee.

A civil penalty of $240 was proposed for the first violation; and $120 was proposed for the second violation alleged.

The Relevant Testimony

The compliance officer, after contacting the general contractor, recommended that one representative of the several sub-contractors accompany him on the inspection in order not to disrupt the work which was being performed. (Tr. 7). The respondent's employees were engaged in masonry operations, installing bricks on the side of the building. There was a total of 24 employees of the respondent engaged in the operations.

At the outset, the CO noted that the respondent's employees were not using a ladder to mount the scaffolds in use. Instead the employees were climbing the scaffolds to the required level through the use of the scaffold braces themselves. (Tr. 91). One particular employee was photographed (Ex. C-1) clinging to the scaffold's outer braces. The violation was called to the attention of the respondent's foreman. The scaffold involved was 40 feet high, but the highest point at which the CO noted an employee working was about 12 feet. (Tr. 14). The CO stated that the fall hazard could have been abated through the rental of a ladder that attaches to scaffolds, containing evenly spaced rungs and grab-bars at the top of the ladder. (Tr. 18). Mr. Acker, the respondent's foreman, said that he would rent such a ladder. (Tr. 19)

The CO stated that the scaffold was equipped with guardrails, and the employee in the photograph (Ex. C-1) was halfway between two work platforms. (Tr. 23). Workers on the work platforms would be adequately protected by the guardrails noted. (Tr. 24). The worker in the photograph was simply clinging to the scaffold, with no safety line or any other type of protection against his falling to the ground. (Tr. 25). He was located between the building and the scaffold. (Tr. 26). The CO expressed the belief that a safety belt and lanyard would have protected the worker from falling from the scaffold under the conditions presented. (Tr. 28-29). The respondent's foreman was in the company of the CO at the time the photograph was taken. There were two door openings in the building under construction. They did not juxtapose with the work platforms, so that an employee could not simply step from the door opening onto a work platform without climbing up to a platform or down to another. (Tr. 31,32). The CO estimated that the distance between the inner portion of the scaffold, closest to the building, and the building wall was 13 inches in some areas. (Tr. 44).

Mr. Kroeger insists that the workman in the photograph was not a bricklayer, as the CO assumed, but that he was a laborer in the process of changing or modifying the scaffold. (Tr. 47). He denies that the employee was exposed to a fall hazard on the grounds that the proximity to the building would not permit the workman's body to fall between the scaffold and the building wall. (Tr. 47). He further stated that workmen are reluctant to climb a ladder to the height of 40 feet, and would rather climb the steps in a building under construction and then step out onto a work platform on a scaffold. He also denied that his foreman (Acker) was on the inspection walk around with the compliance officer at the time of the visualization by the CO of the alleged violations. (Tr. 47, 48). He does not deny that no ladder was provided for access to the scaffold.

A notarized statement was signed by Acker denying that he was in the walk-around inspection with the compliance officer. (Ex. R-1).

Discussion

No weight can be given to the statement signed by the foreman (Acker) denying that the participated in the inspection in view of (1) the compliance officer's inclusion in his report of the foreman's participation in the inspection, (2) the evident candor of the compliance officer in his statements with respect to that particular incident, and (3) the failure of the respondent to produce Acker as a witness subject to cross examination at the hearing. Hence I find no reason to believe that the inspection was conducted in any manner other than that permitted by the elements of fairness and within the ethical standards required by the Act.

In addressing the merits of the alleged violations it appears that there is a substantial question with respect to the activities of the workman photographed on the scaffold. The compliance officer's testimony is sketchy in that he stated that the employee told him that he was a brick-layer, and yet the photograph clearly belies that theory since there are no bricks or bricklaying equipment in the employee's hands. A bricklayer does not lay bricks while holding onto a scaffold with one hand, as Mr. Kroeger insists. Thus, Mr. Kroeger's statements that the employee was a laborer engaged in modifying or changing the structure of the scaffold must be given more weight than the testimony of the compliance officer. There is also the question of the height at which this employee was working. The compliance officer exhibited considerable uncertainty as to whether he was at 10, 11, 12, or 13 feet from the ground. The method of measurement was never placed on record. In these circumstances the complainant has failed to prove a violation of Item 2 of the citation and it will be vacated.

Item 1 must be affirmed inasmuch as the evidence clearly shows that no access ladder was provided by the respondent as required by the standard, nor was an equivalent safe access to the scaffolds demonstrated. Permitting workmen to climb the scaffold cross-braces, etc., in reaching work platforms can hardly be considered equivalent safe access. It is obvious that a fall from heights in excess of 10 feet would result in serious injuries. This item must be affirmed.

There remains the question of whether the proposed penalty of $240 for the violation of the standard cited under Item 1 is appropriate under the criteria afforded by the Act. It is my opinion that consideration of the size of the respondent's operations warrants a reduction of the proposed penalty to $100.

Conclusions

1. The Review Commission has jurisdiction of this proceeding.

2. The respondent did not violate 29 CFR 1926.451(d)(10).

3. The respondent did violate 29 CFR 1926.451 (a)(13).

ORDER

ORDERED that:

1. Item 1 of Citation No. 1 is affirmed, with a civil penalty of $100 assessed.

2. Item 2 of Citation No. 1 is vacated.

Louis G. LaVecchia
Judge, OSHRC

Date: February 1, 1989,