Docket No. 00-1208

___________________________
SECRETARY OF LABOR,	   :
	Complainant,       :
	v.		   :		OSHRC DOCKET NO. 00-1208
			   :
TEXAS MASONRY, INC.        :
  and its successors,      :
                           :
	Respondent.        :
___________________________:

APPEARANCES:				

	Beverlei E. Colston, Esq., Office of the Solicitor, U.S. Department of Labor, 			    Dallas, Texas

	Thomas H. Scott, Esq., W.C. Blayney & Associates, Humble, Texas

Before: Administrative Law Judge Sidney J. Goldstein

DECISION AND ORDER

In this action the Secretary of Labor seeks to affirm a serious citation
issued to Texas Masonry, Inc. by the Occupational Safety and Health
Administration for the alleged violation of a safety regulation relating
to scaffolding. The matter arose after a compliance officer for the
Administration inspected a worksite of the company in Porter, Texas,
concluded that it was in violation of the regulation, and recommended
that the citation be issued. The Respondent disagreed with the citation
and filed a notice of contest. By order of the chief judge, this case
was assigned for E-Z Trial proceedings, and the matter was heard in
Houston, Texas.

The citation charged that:

Citation 1 Item 1 Type of Violation: Serious

29 CFR 1926.451(g)(1): Each employee on a scaffold more than 10 feet
above a lower level

was not protected from falling to that lower level:



(a) On April 11, 2000, Texas Masonry, Inc., at a Wal-Mart under
construction at 23561 Eastex Fwy (Hwy 59), Porter, TX, 77365,
approximately 14' section of guardrail missing at a height of
approximately 21'.

in violation of the regulation found at 29 C.F.R. §1926.451(g)(1)
reading in part as follows:

(g) /Fall Protection./ (1) Each employee on a scaffold more than 10 feet
(3.1 m) above a lower level shall be protected from falling to that
lower level.



At the hearing the compliance officer testified that he inspected a
Respondent's roofing worksite on April 11, 2000, and observed masonry
work on a retail building annex. Company employees were working on a
section of roofing scaffolding approximately 21 feet above ground level
with incomplete guardrail or other protection. He took photographs of
the unguarded area which confirmed his observations that there was
nothing to protect a worker from walking to the edge of the platform.
The situation was called to the Respondent's attention, and immediately
after the opening conference it installed guardrails and toeboards. The
inspector also explained how all work could have been performed with
guardrails in place.

Charles H. Thomas, Jr. testified on behalf of the Respondent. He has
been associated with masonry for over 41 years and considers himself
competent in the field. He did not dispute the compliance officer's
observations that workers on the scaffolding were not protected by
guardrails. However, he explained that only experienced employees worked
on the upper levels. Newer people were assigned to ground level duties
only. Based upon his experience the standard practice in the industry on
staging platforms did not include guardrails. Initially he stated that
there was no way to put a guardrail on the mainframe with blocks and
mortar in the area, but later he agreed that guardrails could have been
placed so that employees were protected from a 21-foot fall. Normally
men would be protected from falls by materials, but after their
depletion, the hazard reappeared.



On the basis of this record it is undisputed that on April 11, 2000, the
Respondent had workers on a worksite about 21 feet above the ground
without personal protective equipment or guardrails on a section of the
roof. Respondent believes it was exempt from guardrail protection
because this safety measure was not in common usage, and employees on
the roof were experienced in the field. Also, part of the time its
workers were not at the roof's edge when materials were located there.

The regulation does not make exception for the Respondent's defenses
that complete guardrail protection was not generally utilized by the
industry, and that only experienced personnel were permitted to work on
roofs.

I therefore find that the Respondent violated the regulation in issue.
There also did not appear to be any quarrel with respect to the penalty.

The citation is AFFIRMED with a penalty of $1,250.00.





/s/

Sidney J. Goldstein

Judge, OSHRC



Dated: June 1, 2001