A Georgia stucco contractor learned the hard way that borrowing another subcontractor’s defective scaffolds can result in some heavy OSHA penalties. In the July 2015 decision in Secretary of Labor v. Georgia Carolina Stucco, Inc., Administrative Law Judge Calhoun affirmed three repeat citation items related to the use of a different masonry contractor’s scaffolds that lacked planking, appropriate guard rails, and access ladders. Over $18,000 in civil penalties were affirmed.
BUILDING THE CASE
The matter started when an OSHA inspector initiated a targeted jobsite inspection at an assisted living facility construction worksite. Cameron General Construction was the general contractor and Georgia Carolina Stucco (G-C) was among several subcontractors working on-site, including masonry contractors Metro Masonry and Quality Masonry.
Although G-C normally supplied their own scaffolds, there was an agreement to use the masonry contractor’s scaffolds that were already on site. When G-C’s foreman, Francisco Lara, examined the scaffolds, he found they were not compliant and notified his company. He testified that the owner of G-C told him to use them anyway, and that the superintendent of Cameron told him the same thing.
There were two scaffolds involved, neither of which was fully planked. There were no guardrails on the third levels where G-C employees were working and no ladder was attached to either scaffold. There was no fall protection in use at the time of the inspection; the scaffold was nearly 21 feet in height. When the inspector arrived, he observed (and photographed) foreman Lara climbing up the outside of the scaffold. OSHA learned that other G-C employees had accessed the scaffolds by either climbing the scaffold frame or going through the windows of the building adjacent to the scaffolds. Quality Masonry also had employees on the faulty scaffolds and both companies were cited (although only G-C’s citations were at issue in this decision).
Foreman Lara told the inspector that the scaffolds belonged to Metro and had been erected by Quality. He later tried to claim that they were in the process of dismantling the scaffold, but the inspector (and judge) did not buy that, as the inspection occurred at 8:45 am and work on the building was still in progress.
THE VIOLATIONS CITED
G-C was cited under three standards: 29 CFR 1926.451(b)(1) (which requires each platform on all working levels of scaffolds to be fully planked); 1926.451(e)(1) (which requires scaffold platforms more than 2 feet above a point of access to have ladders, stair towers, ramps, walkways, personnel hoists, or other methods of access, and stipulates that cross braces cannot be used for access); and, 1926.451(g)(1) (which requires each employee on a scaffold more than 10 feet above a lower level to be protected against falling to the lower level). Each citation item, classified as repeat and serious, was separately assessed at $6,160.
To prove a serious violation, OSHA has the burden of proving by a preponderance of evidence that: (1) the cited standard applies, (2) there was noncompliance, (3) employees had access to the violative conditions, and (4) the cited employer had actual or constructive knowledge of the conditions. G-C confirmed applicability of the standard, the violations themselves, and access by its workers, but challenged the “knowledge” component at trial. It also defended by claiming that the cited scaffolds did not belong to the company. OSHA agreed that Metro Masonry owned the scaffolds at issue; however, ownership of the noncompliant condition is not a deciding factor in assessing whether the terms of the standard are in compliance.
At trial, OSHA argued that G-C had actual knowledge of the violative conditions through its foreman, Lara, a supervisory employee who worked on the scaffolds alongside two subordinate employees of the company. The agency argued that Lara’s knowledge was imputed to G-C, but also noted that Lara testified about his call to the company owner, who instructed him to use the scaffolds until G-C could get proper equipment to the work crew. Lara testified that he was aware of the deficiencies and that his subordinates were working from them; that he climbed the scaffold frame himself; and that his coworkers climbed onto the scaffolds through the windows.
G-C raised an affirmative defense of employee misconduct/isolated incident. This was rejected because, while the company claimed that it trained employees, had a safety program, and disciplined employees who violated safety rules, Lara had only received a verbal reprimand (rather than suspension or termination). The judge found that the fact that three workers (including a supervisor) worked from an improper scaffold at the direction of the company owner showed that G-C “placed expediency over employee safety in this instance and suggests the company condoned safety violations.”
G-C’s defense was that the general contractor had instructed their foreman to use the scaffold and that this provided the “Darden” doctrine defense (that the cited employer was not the employer of the affected workers). The judge disposed of this defense as well, noting that an analysis of the factors in this case showed that Cameron General Construction did not “control” Lara but simply had general oversight and control of the jobsite. It did not have the authority to direct G-C’s employees in their daily work activities.
G-C tried to invoke the “ComTran” defense—recognized by the U.S. Court of Appeals for the 11th Circuit in cases where supervisors who violate the law are the only employee at risk. The judge found, however, that this was an ordinary case of holding an employer responsible by imputing the knowledge and actions of a supervisor to the company. Here, Lara was aware of the violative actions of his subordinate employees in also using the defective scaffold and, as the judge wrote: “The supervisor acts as the ‘eyes and ears’ of the absent employer. That makes his knowledge the employer’s knowledge.”
The bottom line: Don’t borrow OSHA trouble by borrowing defective equipment. ■
About The Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, October 2015
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