ALJ Decision in George Weis Company, OSHRC Docket No.19-1738, Becomes a Final Order of the Commission.
Two of Respondent’s employees were installing soffits on the sundeck of the Holiday Inn hotel in Creve Coeur, Missouri. The foreman was in the basket of an aerial lift, and his co-worker was handing the materials and tools over the edge of the sundeck onto the aerial lift. After a couple of hours, the employee on the sundeck grabbed the mid-rail of the guardrail system protecting the edge of the sundeck and fell through both the top- and mid-rail onto the aerial lift stationed just below the edge of the sundeck. As a result of its investigation, the Occupational Safety and Health Administration (“OSHA”) determined Respondent failed to ensure the guardrail could withstand 200 pounds of force in violation of 29 C.F.R. § 1926.502(b)(3). Complainant contends the proof of this violation is fairly simple: a 200-pound man placed his weight on the mid-rail of a wire-rope guardrail system, which collapsed and caused the man to tumble over the edge. Complainant asserts these facts, coupled with its claim that Respondent was obligated to ensure the guardrail met the capacity requirement through a proper inspection, were sufficient to establish its prima facie case. Respondent, on the other hand, contends the Citation and Notification of Penalty should be vacated because: (1) Complainant failed to cite the proper standard, (2) the employee likely applied more than 200 pounds of force to the mid-rail, and (3) its employees performed adequate testing of the guardrail before work began. While the Court agrees with the result urged by Respondent, it does so for slightly different reasons. As discussed further below, the Court finds Complainant failed to produce competent proof the terms of the standard were violated. As such, the Citation and its associated penalty will be vacated.