________________________________________
SECRETARY OF LABOR,	
          Complainant,                      	
		v.				OSHRC DOCKET NO. 99-1131

B & R WHOLESALE TIRE CO.,
          Respondent.

________________________________________

APPEARANCES:



Patrick L. Depace, Esquire				Marshall Buck, Esquire
Office of the Solicitor				        100 Federal Plaza East
U.S. Department of Labor				Youngstown, Ohio
Cleveland, Ohio					        For the Respondent.
For the Complainant.				

BEFORE:	G. MARVIN BOBER
	Administrative Law Judge


/_*DECISION AND ORDER*_/



This proceeding is before the Occupational Safety and Health Review
Commission ("the Commission") pursuant to section 10 of the Occupational
Safety and Health Act of 1970, §§ 651-678 (1970) ("the Act"), to review
a citation and notification of penalty issued by the Secretary of Labor
("the Secretary"). On April 12, 1999, an accident occurred at a work
site in Youngstown, Ohio, where a roofing addition was being built
between two existing buildings owned by Respondent, B & R Wholesale Tire
Company ("B&R"); the accident took place when a crane was setting
trusses on steel beams at the site and the trusses collapsed. The
Occupational Safety and Health Administration ("OSHA") conducted an
inspection of the site from April 12 through 15, 1999. As a result of
the inspection, OSHA issued B&R a serious citation alleging violations
of section 5(a)(1) of the Act and 29 C.F.R. §§ 1926.20(b)(2) and
1926.602(c)(1)(viii)(A) and proposing a total penalty of $5,250.00. B&R
filed a timely notice of contest, and an administrative trial was held
in Youngstown, Ohio on March 20, 2000.^(1) <#N_1_> Both parties have
filed post-trial briefs in this matter.

*/Testimony of Ken Weeks/*

Ken Weeks testified that he has worked for Valley Crane ("Valley") as a
crane operator for 16 years and that he has operated all types of
cranes, ranging from 6 tons to 75 tons; he further testified that Valley
rents cranes and operators, that B&R rented a crane and operator from
Valley in April of 1999, and that his boss, Fred Comparato, assigned him
to the B&R project. Mr. Weeks said he arrived at the site with his crane
at about 8 a.m. on April 12, 1999, that Ray Starr, B&R's owner, came up
to him, and that they had a brief conversation about hooking up the
lifting beam and where the trusses were; Mr. Weeks did not know who Mr.
Starr was then, but he later concluded he was "the boss" as he was
"running around giving orders" and "more or less directing everyone."
However, Mr. Weeks noted that while the renting company tells him what
they want done he makes his own decisions about how to operate the
crane, that he had no supervisor on the B&R job, and that he worked
somewhat like an independent contractor at the site. (Tr. 7-13, 35-42,
52-57).

Mr. Weeks stated that the project involved setting 45 to 50 85-foot
trusses in order to construct a new building between two existing
buildings at the site.^(2) <#N_2_> He also stated that the trusses were
located to the left of his crane and that his job involved picking them
up, swinging them over and setting them down on the building. (Tr.
13-14). He described the process more fully as follows:

Well, I would swing over to my left ... lower the cable down with the
lifting beam on it; the pulleys's would hook it up. I would pick it up
and start swinging back to my right; and then there's a man on a tag
line who more or less guides the truss as we're going up; and then when
I would get up and clear the existing building that was there, then I
would swing over to my right at 180 degrees and start lowering the truss
down....I would lower it down so far, but carpenters or whoever was on
the building would reach down, and they would have marks that they set
the truss on. They would more or less guide me to swing it right, left,
in or out. They actually handled the truss once I got it to them. (Tr.
14-15).

Mr. Weeks said the day of the accident was "fairly sunny" with a "slight
wind" that was "nothing unusual." (Tr. 15-16). He also said that he had
set about 30 trusses at the time of the accident, which he described as
follows:

I swung over ... the top of the building. I was in the process of
setting it back down when I heard ... a noise, like a cracking sound;
and I looked back to my left, and the trusses were starting a
domino-effect falling down. So I was just -- stayed there with the
truss. I never lowered it down. I didn't do anything with it; and the
trusses fell within a matter of a minute or so. (Tr. 16).

Mr. Weeks was adamant he had not hit the building with his load,
although Mr. Starr accused him of doing so, and it was his opinion that
a lack of bracing caused the collapse. Mr. Weeks said he had worked on
"hundreds" of projects involving truss setting, that in his experience
trusses were braced with wooden 2x4's set in a diagonal pattern, and
that at the B&R site metal strips were put between the trusses instead
of using wooden 2x4's as bracing. He also said he did not know what the
metal strips were called, although he assumed they were some sort of
bracing, and that while workers could have been putting up 2x4's on the
interior side of the trusses, which he could not see, no 2x4's were
being put up on the exterior side of the trusses.^(3) <#N_3_> Mr. Weeks
had never seen a truss fall before in his 32 years of experience, and it
was his belief that using 2x4's to brace the trusses was "a necessary
component of the system so they don't fall down." (Tr. 16-20, 29-35, 43-50).

*/Testimony of Don Hall/*

Don Hall testified he has been the chief building official for Mahoning
County for over two years, that before this position he had been in the
building industry for 40 years, including the position of vice-president
with Bucheit Company for 25 years, and that he is a civil engineer and
licensed in eight to ten states, including Ohio. He further testified
that his duties include administering all of the building permits issued
in Mahoning County and that he had inspected the B&R project after the
accident.^(4) <#N_4_> (Tr. 61-65). Mr. Hall described what he learned as
follows:

All he [R. J. Starr, Ray Starr's son] told me was that Valley Crane was
-- they were installing these 80-foot-long trusses. I got to tell you,
I've been in the -- in this erection business with Bucheit for 25 years,
and we did a lot of erection. We did everything from wood trusses like
this to large beams to -- to highway beams, everything. And we -- we
were general contractors. We did our own erection; and I have never seen
anybody erect -- if I had anybody erecting trusses in that kind of wind,
or any type of thing, I would have fired them; because it was -- it was
-- the gusts were so high that it was terrible. I have to say that
first. It was really that bad, the wind conditions that were down there.
And when I got there and talked to R. J., he said his dad was around
somewhere, and he'll try to get ahold of him; but he did see the crane
people, when they were erecting the trusses, they hit the one on the --
the farthest one on the east, and that all just dominoed the truss
collapse. (Tr. 67-68).

Mr. Hall said that the wood trusses were 80 feet long and that they were
supported on either side by masonry columns; he also said the trusses
sat on steel beams that were on top of the masonry columns. (Tr. 65-66).
When asked about temporary bracing, Mr. Hall responded:

Q: Were you able to discern any temporary bracing?

A: Yes; it looked like there was some temporary bracing along the bottom
-- across the bottom, and that was -- that was in there, that was --
that would meet temporary bracing standards. I didn't see anything on
the end. I would have expected temporary bracing at the first -- that
would have stopped all of this from any crane dislodgement or anything
like that; so I didn't see anything -- but that doesn't mean it wasn't
there. I just didn't see it. It could have been ... pushed off and into
the mess. It looked like most of the vertical were just -- were just
metal bracing, which weren't continuous units on the top bracing.

Q: Is that sufficient to be adequate with industry guidelines?

A: No; it's supposed to be continuous bracing across. There should be
... 2x4's across there. All I saw was the -- was the metal. I didn't see
any 2x4's up on top. That doesn't mean that they didn't slide off or
anything. That's what I say, it's tough to see in a mess like that ...
what was left.

Q: What is the purpose of temporary bracing?

A: That's just to stabilize those trusses entirely until permanent
bracing is put in and -- all the way around the perimeter, so just
exactly ... what did happen, won't happen.^(5) <#N_5_> (Tr. 71-72).

*/Testimony of David Hunter/*

David Hunter, the OSHA compliance officer ("CO") who conducted the
inspection, testified that prior to his employment with OSHA he had been
a co-owner of a health and safety consulting firm and that he had also
had many years of experience in the construction industry as a
carpenter; his construction experience had included both truss erection
and installing temporary truss bracing. (Tr. 101-07, 154-59). CO Hunter
described the B&R project as follows:

The project was -- they virtually were bridging between two buildings.
If you can imagine, in a figure of an H. The new construction being
between two existing buildings. The dimensions were about 110 feet in
length and approximately 80 or 85 feet in width. The construction was --
there was a concrete driveway -- actually, the whole area was concreted
in at this point. There were some cinder block columns that were built,
and then there were I-beams attached to the columns....The project was
to create, I guess, a clear-span area, and that's the reason for the
trusses; so they didn't have to put any interior bracing; and when I got
there, it appeared that they were in the process of setting the trusses
when ... the accident occurred. (Tr. 109).

The CO said that when he arrived at the site, Ray Starr was driving a
backhoe into the rubble; after identifying himself as an OSHA CO, he
asked Mr. Starr to stop using the backhoe because of the danger of the
possible collapse of the beams and columns, and Mr. Starr did so.^(6)
<#N_6_> The CO also said that upon viewing the scene, as shown in
GX-2-35, he saw evidence of some temporary bracing used but also
instances of no bracing and insufficient bracing used; he noted that the
temporary bracing holds each truss in a vertical position and makes the
trusses a solid unit and keeps them from falling over until permanent
bracing can be installed. The CO additionally saw insufficient nails
going through the 2x4's. (Tr. 110-36). He explained the problem with
this as follows:

Well, to adequately use temporary bracing, it's industry standard; it's
directed by the Trust Plate Institute and accepted by OSHA, that every
piece of temporary bracing shall have no less than two nails from 12 to
16-penny, attaching each truss piece to the next. You can't use one
nail; you can't skip it for the temporary bracing to be sufficient to
keep the trusses up. (Tr. 124).

CO Hunter further testified that as a result of his inspection, he
concluded that there was insufficient temporary bracing in place and
that it was inadequately nailed. He pointed out that he saw no evidence
of ground bracing, which is required for virtually all trussing jobs. He
also pointed out that the first truss, which lends support to all
subsequent trusses, was itself insufficiently supported, particularly
since it had no ground bracing; he determined this by observing the
concrete pad below that area and seeing no penetrations where supporting
braces could have gone, and he said that while the truss being attached
to the existing building provided some support it was not a substitute
for the required bracing. The CO said that another problem was that
metal spacers were used to achieve the requisite spacing between the
trusses, rather than using a more accurate method, which can cause
trusses to be out of plumb and put additional stress on the bracing. The
CO considered it "miraculous" that only one person had a minor injury,
in his experience, truss collapses usually cause serious or fatal
injuries.^(7) <#N_7_> (Tr. 135-38, 145-51, 197).

CO Hunter stated that knowledge about what bracing is required for a
particular truss job can be gained through extensive prior experience or
from the layout provided by the truss manufacturer. He noted that every
set of trusses has a layout explaining how much and what type of bracing
to use, as well as where to put it; he further noted that the Truss
Plate Institute ("TPI") has instructions that give its recommendations
on how to install and brace trusses, that TPI booklet HIB-91 applied to
the trusses on the B&R project, and that Montgomery Truss
("Montgomery"), the manufacturer of the subject trusses, provided in
this case both the booklet and a summary of its provisions. The CO said
that Ray Starr told him that he was in charge of the truss erection
project because of his previous experience, that he was the competent
person on the job, and that all of the employees at the site were
working for him. (Tr. 136-44, 152; G-36-37). However, the CO did not
consider Mr. Starr a competent person on the subject project, and he
explained why:

[F]rom the few times that Mr. Starr and I spoke, I ... don't believe
that he was fully aware of the level of hazard that's involved with
utilizing these trusses and the sheer forces that the trusses themselves
apply....This was also evidenced when I got to the job site that when
Mr. Starr was on the front loader and was attempting to move the trusses
that were fallen out of the way while they were still suspended up
against the steel beams -- the concrete columns were damaged; and it
could have been a really terrible scene if he possibly would have
continued. I don't believe he was aware of the sheer magnitude of the
force that these things exert. (Tr. 144-45).

*/Testimony of Ray Starr/*

Ray Starr testified that he has been in the tire and wheel business
since 1972 and that he does not operate a construction company or employ
carpenters. He further testified that he retained an architect to design
the addition, that he hired Conti Construction ("Conti") to do the
woodwork part of the project, and that Conti obtained the necessary
permits for the job.^(8) <#N_8_> Mr. Starr said he had used Conti for
previous projects and that Conti had over 30 years of experience in
setting trusses and was "more than competent" for the job; he also said
Conti was responsible for putting up the addition and that when it had
problems or questions it went to the architect. Mr. Starr noted that
Conti provided the labor while he provided the materials, that Conti had
about eight employees on the job and used its own tools and supervisors
on the project, and that Conti, not B&R, controlled the job; however,
B&R employees took nails and lumber to the Conti employees as needed, he
provided his impact gun to Conti so that it could bolt the first truss
to the masonry of the addition, and on two or three occasions on the day
of the accident he had helped out by using his forklift to lift one of
the B&R supervisors up to release a truss from the crane. (Tr. 206-10,
216, 229-31, 239, 242-54).

Mr. Starr stated that he and representatives of Conti and Montgomery had
a meeting about a month before the project and that the Montgomery
representative provided Conti with information about how to install and
brace the trusses; he further stated that he himself was aware that
bracing was necessary to put up the trusses and that he had purchased
approximately 2400 feet of 2x4's, 2x6's and 2x8's to be used for the
bracing.^(9) <#N_9_> Mr. Starr watched the first truss being set and
braced, and although he watched the progress of the job after that point
on a "hit or miss" basis, he observed "tons of braces" put on the
trusses and believed they met the TPI standards in view of what the
Conti and Montgomery representatives had said at the meeting. (Tr.
210-18, 256-61). He also believed that the crane operator hit the
building and caused the accident, which he described as follows:

Well, there was approximately three hits on the building by the crane
operator. The first hit shook the building, and the steel beams ... just
tremored ... I think my son, R. J. came down and notified me the second
hit....But when the whole building tremored, I knew ... that the
building had been hit, and I went to the driver, and I said, You're
going to kill somebody....[T]he last final blow -- I'll call it truss
number one ... took the blow....The truss that he was laying ... he was
swinging up over the building, and he hit the lead truss ... [and] ...
that truss broke loose from the building [and] they all went with the
domino effect. (Tr. 222-23).

Mr. Starr said that after determining there were no injuries, he looked
over the site and saw that when the lead truss collapsed it had broken
the cement block on the wall of the existing building to which it had
been bolted; he then began using his backhoe to clear up the debris as
there was shipping to be done and the area in front of his shipping
department was blocked. Mr. Starr also said that OSHA arrived at about
that time and that the CO told him to proceed because, with the amount
of debris and the state the site was in, no one could tell what had
happened. (Tr. 224-226). When asked why Conti was not in charge of
cleaning up the site after the accident, Mr. Starr responded:

Because, he wasn't in charge of nothing. He was just in charge of the
construction. The construction wasn't going to be finished, so he walked
off the job. He asked me to pay him for his time and his men; and ... I
think I gave him 1200 bucks. I'd have to check ... because he showed me
that particular time what he had -- how many men he had and what he
felt....I said, well; you were going to get 10,000 for two days. You
ain't going to get 5,000 for one day. So we bartered ... and ... it just
seems to me 1200 bucks is what I paid him for his day's ... work. I
don't even know how long he was there, to be honest with you ... that
whole day was a disaster. (Tr. 254-55).

/_*Whether B&R was Properly Cited for the Alleged Violations*_/

At the hearing, B&R's counsel elicited testimony from Ray Starr to the
effect that Conti controlled the work at the site and was the employer
with respect to the construction project. (Tr. 206-16). The Secretary
objected to this testimony at the hearing, and she objects in her brief
to B&R raising this defense, noting that Commission Rule 34(b)(4)
requires affirmative defenses to be raised in the employer's answer and
that B&R failed to do so. /See/ 29 C.F.R. 2200.34(b)(4). /See also A/C
Elec. Co. v. OSHRC/, 956 F.2d 530 (6th Cir. 1991). While the Secretary
is correct that B&R did not assert this defense in its answer, I
nonetheless conclude that it is appropriate to address this matter;
however, for the following reasons, I find that B&R was properly cited
in this case.

As set out above, the CO testified Ray Starr told him that he was in
charge of the project due to his prior experience, that he was the
competent person on the job, and that all the employees at the site were
working for him.^(10) <#N_10_> The CO also testified that no one ever
mentioned Conti or said anyone was working for Conti and that the three
employees he talked to stated they were working for Mr. Starr; one was
Joe Conti, the injured person, who told the CO he and the others were
working for and under the direction of Mr. Starr.^(11) <#N_11_> (Tr.
144, 151-52, 169-70, 183, 187-88, 192-94, 197-99). The CO stated that he
saw Mr. Starr using a backhoe to clean up the debris and instructing
employees which saws to use to cut up the debris, and he further stated
that he learned during his inspection that Mr. Starr had been using a
forklift in order to lift an employee up to the structure to release the
trusses from the crane; to do so, the employee stood on the end of the
forklift on top of pallets that had been "shrinkwrapped" together.^(12)
<#N_12_> (Tr. 110, 115-16, 144-46, 164-67).

It is clear from the above that the CO's testimony about the site was
markedly different from that of Mr. Starr. In his testimony set out
/supra/, Mr. Starr indicated he had minimal involvement with the
project, such as purchasing materials, observing the work, and having
B&R employees take materials to the Conti workers and allowing Conti to
use his impact gun. (Tr. 213-17, 239-46, 249, 253). However, he admitted
he operated the forklift to lift a B&R supervisor up to release trusses
from the crane and that he cleaned up the debris after the accident.
(Tr. 225-26, 229-31, 239, 244, 254). He also admitted he told the CO
that the employees on the job were working for him, although, as he
explained it, they were working for him only in the sense that he was
the owner and Conti was the contractor and he paid them to do the work.
(Tr. 226, 239). Regardless, the CO's testimony is credited over that of
Mr. Starr. First, as noted /supra/, the CO's testimony was supported by
that of Messrs. Hall and Weeks. Second, parts of Mr. Starr's testimony
were simply not believable. For example, his testimony that the CO told
him to proceed with cleaning up the site before the inspection, besides
being contrary to the testimony of the CO and Mr. Hall, was highly
implausible. (Tr. 68-71, 110, 225). As another example, Mr. Starr
testified that although he had had a contract with Conti and photos he
had taken showing the bracing, he had not brought either the contract or
the photos to the hearing; he then testified that he might not have kept
the contract because he wasn't "too good at keeping things." (Tr. 218,
247-48). Third, I observed the respective demeanors of these two
witnesses on the stand, and I found the CO's testimony to be convincing
and credible and the more reliable evidence in regard to the
circumstances at the site.

In view of the foregoing, I conclude that Mr. Starr was the employer
with respect to the truss erection project. I further conclude that even
if he was not, he exercised sufficient control over the site to abate
the hazards relating to the project, based on the Commission's
long-standing precedent setting out the multi-employer work site
doctrine; according to that doctrine, an employer that creates or
controls a hazardous condition while engaged in a common undertaking
will be liable under the Act, regardless of whether its own employees or
those of other employers were exposed to the cited hazard. /See Access
Equip. Sys., Inc/., 18 BNA OSHC 1718, 1722-23 (No. 95-1449, 1999), and
cases cited therein. Finally, I conclude that, to the extent that B&R
may be asserting the multi-employer work site affirmative defense, it
has not met the elements of that defense. /Anning-Johnson Co./, 4 BNA
OSHC 1193, 1198-99 (Nos. 3694 & 4409, 1976); /Grossman Steel & Aluminum
Corp./, 4 BNA OSHC 1185, 1188-89 (No. 12775, 1976). Consequently, B&R
was properly cited in this case.

*_/Citation 1, Item 1 - Section 5(a)(1) - Proposed Penalty: $2,500/_*

This item alleges that B&R was in violation of the general duty clause,
section 5(a)(1) of the Act, in that it did not furnish employment and a
place of employment which were free from recognized hazards that were
causing or likely to cause death or serious physical harm to employees.
Specifically, the citation alleges that:

On 4/12/1999, employees were installing wood trusses with a span of 80
feet and weighing 635 lbs each onto 2 column supported steel beams. The
trusses were not adequately braced laterally or diagonally resulting in
the trusses collapsing, injuring one employee.

Among other feasible and acceptable methods to correct this hazard are:

1. Install lateral and diagonal bracing as required.

2. Follow the Truss Plate Institute Summary Sheet, HIB-91 (Handling,
Installation, and Bracing Metal Plate Connected Wood Trusses) during the
erection and/or installation of all wood truss systems.

3. Follow the commentary and recommendations as supplied by the
manufacturer.

To show a 5(a)(1) violation, the Secretary must prove that: (1) a
condition in the workplace presented a hazard to employees, (2) the
cited employer or the employer's industry recognized the hazard, (3) the
hazard was causing or likely to cause death or serious physical harm,
and (4) feasible means existed to eliminate or materially reduce the
hazard. /Well Solutions, Inc./, 17 BNA OSHC 1211, 1213 (No. 91-340,
1995); /Pelron Corp./, 12 BNA OSHC 1833, 1835 (No. 82-388, 1986).

As to the first element, B&R contends the trusses were properly braced
and that the reason for the collapse was the crane operator striking the
first or lead truss with his load.^(13) <#N_13_> As noted /supra/, Mr.
Weeks was adamant he had not hit the addition. (Tr. 43-44). On the other
hand, Mr. Starr testified he had, and R. J. Starr, Mr. Starr's son,
evidently told Mr. Hall this was what had happened. (Tr. 67-68, 222-23;
GX-1). Further, while Mr. Weeks indicated there was only a "slight wind"
that was "nothing unusual" that day, Mr. Hall testified to the effect
that the wind at the site was such that erection should not have been
taking place. (Tr. 15-16, 68; GX-1). However, whether the crane's load
actually struck the building need not be resolved because I find, based
on the record, that the trusses were not properly braced and that that
condition represented a hazard for employees.

The CO's testimony, set out above, was that insufficient temporary
bracing was used, that the bracing that was used was inadequately
nailed, and that he saw no evidence of ground bracing, which is required
for all truss projects; he also testified that the first truss, which
gives support to the other trusses, was inadequately supported because
it had no ground bracing. The CO's determination that insufficient
bracing was used and that it was inadequately nailed was based on his
inspection, and he fully explained the reasons for his conclusion on the
record; he also discussed the photos he had taken and how they supported
his conclusion. (Tr. 110-36, 145-49). In addition, the CO's conclusion
was bolstered by Messrs. Weeks and Hall. Mr. Weeks indicated that
although there could have been bracing on the interior side of the
trusses, which he could not see, there was no exterior bracing. (Tr. 20,
30-31, 35, 39). Mr. Hall indicated that he saw some temporary bracing
but did not see the amount of bracing he would have expected to see to
meet industry guidelines. (Tr. 71-72).

Mr. Starr testified that "tons of bracing" were put on the trusses and
that he had taken photos of the site showing the bracing. He also
testified about RX-3, the receipts for his purchase of 2x4's and other
lumber in March and April of 1999, and RX-6, a receipt showing his
donation of trusses and bracing to a local school in May of 1999. (Tr.
214, 217-18, 226-28). However, as noted above, the photos were not
presented at the hearing. (Tr. 247). Further, the CO testified that
temporary bracing can also be used for permanent bracing after the
trusses have been erected. (Tr. 120). In any case, Mr. Starr's testimony
about the bracing used at the site is not credited, for the reasons set
out /supra/, and I find that the Secretary has met the first element of
her burden of proof.

I also find that the Secretary has met the second element, that is, that
the employer and/or the industry recognized the cited hazard. Mr. Starr
testified that he and representatives of Conti and Montgomery met about
a month before the project and that the Montgomery representative gave
Conti information about how to install and brace the trusses; Mr. Starr
also testified that he knew that bracing was necessary for the project
and that he had bought 2400 feet of lumber to be used as bracing. (Tr.
210-16). Moreover, RX-4, the instructions Montgomery gave Conti, and
GX-36-37, the TPI HIB-91 booklet and summary, respectively, which the CO
discussed, clearly demonstrate industry recognition of the cited hazard.
Finally, I find the Secretary has met the third and fourth elements of
her burden. It is apparent from the record that inadequately braced
trusses can cause serious injuries or death, and RX-4 and GX-36-37
contain detailed instructions as to the proper erection and bracing of
trusses. This citation item is affirmed as a serious violation.

The Secretary has proposed a penalty of $2,500 for this item. Upon
giving due consideration to the requisite factors, that is, the size,
history and good faith of the employer, and the gravity of the
violation, I conclude that the proposed penalty of $2,500 is appropriate
for this item.

*_/Citation 1, Item 2 - 29 C.F.R. 1926.20(b)(2) - Proposed Penalty:
$1,000/_*

This item alleges a violation of 29 C.F.R. 1926.20(b)(2), which provides
as follows:

(b) /Accident prevention responsibilities/....(2) Such programs shall
provide for frequent and regular inspections of the job sites,
materials, and equipment to be made by competent persons designated by
the employers.

This item is based on the CO's conclusion that site inspections were not
done as required. The CO testified Ray Starr told him that he was the
competent person at the site and that he was doing continuous
inspections of the job. However, the CO further testified that he saw no
evidence that site inspections by a competent person were done. He said
that while Mr. Starr might have been qualified to oversee general
construction work, he was not qualified to oversee a job as specific and
unique as installing trusses the size of those on the subject site. He
also said this was evidenced by the fact that when he arrived, Mr. Starr
was attempting to move the fallen trusses with a backhoe, which could
have resulted in the steel beams or cement columns coming down on him.
CO Hunter stated that other factors, such as insufficient bracing and an
inadequate number of nails in the bracing, also persuaded him that Mr.
Starr was not qualified to oversee the job. (Tr. 110, 143-148).

Based on the foregoing, the Secretary has established a violation of the
cited standard.^(14) <#N_14_> This item is accordingly affirmed as a
serious violation, and, in light of the penalty factors set out /supra/,
I conclude that the proposed penalty of $1,000 is appropriate for this item.

*_/Citation 1, Item 3 - 29 C.F.R. 1926.602(c)(1)(vii)(A) - Proposed
Penalty: $1,750/_*

This item alleges a violation of 29 C.F.R. 1926.602(c)(1)(viii)(A),
which states as follows:

(c) /Lifting and hauling equipment/....(1) Industrial trucks shall meet
the requirements of 1926.600 and the following: ... (viii) Whenever a
truck is equipped with vertical only, or vertical and horizontal
controls elevatable with the lifting carriage or forks for lifting
personnel, the following additional precautions shall be taken for the
protection of personnel being elevated. (A) Use of a safety platform
firmly secured to the lifting carriage and/or forks.

The basis of this item was the B&R supervisory employee who stood on
pallets on the end of the forklift, which Mr. Starr raised up so that
the employee could release the trusses from the crane. CO Hunter
testified that this was unsafe; any platform should have been designed
by an engineer and attached to the forklift, and the platform also
should have had a basket or guardrails to which the employee should have
been tied off. The CO further testified that, although there was a
manila rope tied to the forklift and Mr. Starr told him the employee
tied the rope around his waist when standing on the pallets, the rope
was not acceptable as fall protection. He said if the employee fell the
force of the fall would be concentrated in a small area around the
employee's body, such that injuries even more serious than those from a
fall could result. He also said that a full body harness and a lanyard
were needed and that the rope was inadequate because it did not have
forged metal ends on it with the hooks. The CO noted that it was his
understanding that at times the forklift was moved in a raised position
with the employee on the pallets. (Tr. 115-17, 145-46, 166, 189-90).

Mr. Starr testified to the effect that the employee had worn a safety
harness and lanyard and had been in an OSHA-approved bucket when he was
lifted up to release the trusses. (Tr. 229-30, 239-40, 243-45). However,
the CO himself viewed the forklift with the pallets and the rope on it,
and he discussed the rope with Mr. Starr. (Tr. 115). In any case, Mr.
Starr's testimony is not credited for the reasons set out /supra/, and,
based on the CO's testimony, the Secretary has established the alleged
violation. This item is affirmed as a serious violation, and, in view of
the penalty factors discussed above, I conclude that the proposed
penalty of $1,750 is appropriate for this item.

_*/ORDER/*_

Based on the foregoing decision, the disposition of the citation items,
and the penalties assessed, is as follows:

*_/Citation 1/_*	/_*Violation*_/	/_*Disposition*_/	/_*Classification*_/
/_*Penalty*_/

Item 1 5(a)(1) Affirmed Serious $2,500

Item 2 1926.20(b)(2) Affirmed Serious $1,000

Item 3 1926.602(c)(1)(viii)(A) Affirmed Serious $1,750









__

G. Marvin Bober

Administrative Law Judge



Dated: 22 DEC 2000

Washington, D.C.

1. At the trial, B&R moved for a directed verdict with respect to Items
1 and 2 of Citation 1, the alleged violations of section 5(a)(1) and 29
C.F.R. 1926.20(b)(2). I denied the motion at the trial but agreed to
reconsider it after reviewing the record. In my opinion, B&R's argument
was not persuasive, and I affirm my denial of the motion for directed
verdict. (Tr. 202-05).

2. Other evidence in the record indicates the trusses were 80 feet long.
(Tr. 65-67; R-6).

3. Mr. Weeks indicated he had seen "somebody putting something up" on
the "back side" of the trusses but that he didn't "see exactly what it
was." He also indicated there could have been some bracing on the
interior side of the trusses, despite his statement to the police on
April 12, 1999, that there were no "wooded braces set in the trusses,
only metal tabs." (Tr. 20, 31, 35, 39).

4. Mr. Hall stated that after he arrived he saw Ray Starr driving a
backhoe into the debris; he told Mr. Starr he could not alter the site
before OSHA's inspection, and Mr. Starr said OSHA had already been
there. Mr. Hall further stated that Mr. Starr's son was also telling him
to stop, due to the danger of one of the columns collapsing, and that at
that point the CO arrived. (Tr. 68-70).

5. Mr. Hall indicated the bracing he did see was done correctly. He also
indicated that even if braced properly trusses could still fall "like a
stack of cards" if hit hard enough. (Tr. 82-83, 98-99).

6. The CO said that Mr. Starr first told him OSHA had already left;
however, the CO reiterated that he was from OSHA, after which Mr. Starr
complied with his request. (Tr. 110).

7. The person was Joe Conti of Conti Construction, who injured his ankle
as he was running away when the trusses began to collapse. (Tr. 138,
151, 197).

8. Mr. Starr said that another company performed the masonry part of the
job. (Tr. 209).

9. Mr. Starr identified RX-3 as his receipts for the lumber he had
purchased for the project and RX-4 as some of the information the
Montgomery representative had given Conti. (Tr. 214-15, 233).

10. The CO said that Mr. Starr told him that he had built one of the
other buildings at the site, including operating a crane and setting
trusses. (Tr. 165-66).

11. The CO noted R. J. Starr told him he and his father were building
the addition. (Tr. 164-65).

12. The testimony of Mr. Weeks and Mr. Hall was consistent with that of
the CO. Mr. Weeks testified about Mr. Starr "more or less directing
everyone" at the site and using the forklift to raise the employee up to
release the trusses from the crane, while Mr. Hall testified about Mr.
Starr cleaning up the debris; in addition, GX-1, Mr. Hall's report,
states that R. J. Starr told Mr. Hall that "all the people who were
doing the erection worked directly for Ray Starr." (Tr. 12, 20-22, 68-71).

13. In support of its position, B&R notes Mr. Starr's testimony that the
lead truss was bolted to the cement block wall of the existing building
and that the force of the crane's load hitting the truss broke the
block. (Tr. 218-19, 224, 248-54). The CO said the lead truss was bolted
to the studs of the wall, and he did not believe it was bolted to the
cement block; he opined that even if it had been this would not have
been sufficient to support the truss, and he said Mr. Starr never
mentioned this, even though they discussed how the truss was attached to
the wall. (Tr. 171-73).

14. To establish a violation of a specific standard, the Secretary must
show: (a) the applicability of the standard; (b) noncompliance with the
standard's terms; (c) employee access to the violative condition; and
(d) the employer's actual or constructive knowledge of the violative
condition. /Halmar Corp/., 18 BNA OSHC 1014, 1016 (No. 94-2043, 1997);
/Atlantic Battery Co./, 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). The
Secretary has met her burden here.