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S.A. Storer and Sons Co. v. Secretary of Labor

March 19, 2004

S.A. STORER AND SONS CO., PETITIONER
v.
SECRETARY OF LABOR, RESPONDENT



On Petition for Review of an Order of the Occupational Safety and Health Review Commission

Before: Henderson, Tatel and Roberts, Circuit Judges.

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge

Argued October 14, 2003

S.A. Storer and Sons Co. (Storer) petitions for review of the citation it received from the Occupational Safety and Health Administration (OSHA), alleging that it had violated the Occupational Safety and Health Act of 1970 (OSH Act or Act)*fn1 by failing to protect its employees from two fall hazards as they performed masonry work. Storer contested the citation, which required the Secretary of the United States Department of Labor (Secretary), from whom OSHA receives its rulemaking and enforcement authority, to prove the violation at a hearing before an Administrative Law Judge (ALJ) of the Occupational Safety and Health Review Commission (Commission).*fn2 The citation was affirmed by the ALJ and ultimately by the Commission, which denied review of the ALJ's decision. Storer claims the Secretary erroneously interpreted the applicable OSHA regulations. We agree in part; accordingly, we vacate the Commission's order and remand to that body for further proceedings consistent with this opinion.

I.

The OSH Act is "designed `to assure so far as possible ... safe and healthful working conditions' for `every working man and woman in the Nation,' "*fn3 and generally obligates an employer to furnish a workplace "free from recognized hazards that are ... likely to cause death or serious physical harm." 29 U.S.C. § 654(a)(1). In furtherance of the Act's overriding objective, the Secretary is authorized to promulgate and enforce workplace safety regulations, see id. §§ 655(b), 658-59, 666, which authority she has largely delegated to OSHA. A.J. McNulty & Co. v. Sec'y of Labor, 283 F.3d 328, 330 (D.C. Cir. 2002) (citing 65 Fed. Reg. 50,017 (2000)); see also Am. Wrecking Corp. v. Sec'y of Labor, 351 F.3d 1254, 1260 (D.C. Cir. 2003). OSHA compliance officers inspect workplaces regularly and, if warranted, issue citations for violations of OSHA's regulations. A.J. McNulty & Co., 283 F.3d at 330.
At issue are OSHA's regulations designed to provide fall protection for construction workers, see 29 C.F.R. §§ 1926.451, 1926.501; specifically, the protective measures required when an employee performs "overhand bricklaying"*fn4 while on a scaffold. Id. § 1926.451(g)(1)(vi). Paragraph (g)(1) of section 1926.451 provides that "[e]ach employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be protected from falling to that lower level." Id. § 1926.451(g)(1). Section 1926.451(g)(1)(vi) requires that an employee doing overhand bricklaying "from a supported scaffold shall be protected from falling from all open sides and ends of the scaffold (except at the side next to the wall being laid) by the use of a personal fall arrest system or guardrail system." Id. § 1926.451(g)(1)(vi). The meaning of the exception is the central issue in this case, as becomes clearer below.

Storer is a masonry contractor operating in Ohio and Michigan. It has been doing business for over 40 years and currently has approximately 80 to 90 employees on its payroll. In May 2001 Storer was hired by Bostleman Corporation (the general contractor) to perform the masonry work for the construction of a Farmer Jack's grocery store, located at the corner of Cherry and Bancroft Streets in Toledo, Ohio. Four masons and three mason tenders carried out the work, which involved erecting the building's load-bearing, concrete-block walls and ultimately putting a brick veneer on the building.*fn5 When completed, the building measured 191 feet wide and 291 feet long and its walls were comprised of approximately 32,000 concrete blocks.

While Farmer Jack's was under construction, two OSHA compliance officers, Todd Jensen and Walter Visage, paid an unannounced visit to the site. On June 14, 2001 Jensen and Visage drove past the Farmer Jack's site -- and observed what they thought were potential fall hazards -- while returning to their office from an inspection at another location. Their observations prompted them to investigate further; accordingly, they parked their car on a side street at a distance of 50 yards from the site and used a handheld video recorder to document what they saw.

They observed at least five Storer employees on a scaffold laying the concrete blocks of the building's south-facing wall. The employees were not tied off, that is, they were not using a personal fall arrest system,*fn6 and the scaffold lacked guardrails. The scaffold, which was located at the top of a mezzanine level approximately 14 feet above ground and which was inside the building's footprint,*fn7 consisted of two "frames" (each approximately six feet tall). The employees stood on the bottom frame while they worked, which put them approximately six feet above the mezzanine level. The placement of the scaffold required the masons to lay the concrete blocks by the "overhand bricklaying" method.*fn8 That is, after setting each concrete block in mortar, the masons had to lean over the wall in order to strike the joints ( i.e., work the mortar into the interstices between the blocks using a concave tool) on the wall's face because the scaffold faced the inside of the wall under construction.

From their vantage point, Jensen and Visage identified two potential fall hazards that the employees working on the scaffold were exposed to. The first was a window opening in the wall under construction. They recorded Storer's employees laying concrete blocks near the window opening; the video shows one employee standing in front of the opening and another walking by it. The second hazard was the "materials staging area" -- i.e., the area used to store both the concrete blocks to be installed and a large vat of mortar --located on the scaffold at the western end of the wall and running perpendicular to it. One employee stood at the edge of the scaffold next to the mortar vat while another lifted concrete blocks onto the staging area from below. Both locations -- the window opening and the materials staging area -- were unguarded, that is, there was no fall protection. The OSHA officials then decided to inspect the Farmer Jack's site; they spoke with members of both Bostleman and Storer management as well as a consultant to Bostleman and they measured the distance to the ground from the two open areas. According to their measurements, the window opening in the wall exposed the Storer employees to a fall of 19.5 feet and those employees in the materials staging area risked a fall of 20 feet.

On August 1, 2001 OSHA cited Storer, alleging that Storer had violated 29 C.F.R. § 1926.451(g)(1) by failing to provide fall protection for its employees on the scaffold. The citation proposed a $6,000.00 penalty for Storer's "repeat"*fn9 violation.

The ALJ determined, not surprisingly, that concrete blocks are masonry units. See Sec'y of Labor v. S.A. Storer & Sons Co., 19 O.S.H. Cas. (BNA) ...


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