“SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC DOCKET NO. 06-1068BURCH CONSTRUCTION, INC.,\t Respondent.\t APPEARANCES: For the Complainant:Satoshi Yanai, Esq., U.S. Department of Labor, Office of the Solicitor,Los Angeles, California For the Respondent: Robert P. Stricker, Esq., Law Offices of Stricker & Ball, San Diego,CaliforniaBefore: Administrative Law Judge: Benjamin R. LoyeDECISION AND ORDER This proceeding arises under the Occupational Safety andHealth Act of 1970 (29 U.S.C. Section 651-678; hereafter called the ?Act?). At all times relevant to this action, Respondent,BurchConstruction, Inc. (Burch) was installing architectural foam moldingfrom scaffolding at the Marine Corps Recruit Depot in San Diego,California. Burch Construction admits it is an employer engaged in abusiness affecting commerce, and is subject to the requirements of the Act. On June 21, 2006, the Occupational Safety and HealthAdministration (OSHA) conducted an inspection of Burch?s San Diegoworksite. As a result of that inspection, OSHA issued a citationalleging violation of 29 CFR ?1926.451(b)(1). By filing a timely noticeof contest Burch brought this proceeding before the Occupational Safetyand Health Review Commission (Commission). A hearing was held in SanDiego, California on October 2, 2006. Briefs have been submitted on theissues, and this matter is ready for disposition.Alleged Violation of ?1926.451(b)(1)Serious Citation 1, item 1 alleges:29 CFR 1926.451(b)(1): Scaffold platforms were not fully planked betweenthe front uprights and guardrail supports: a. The scaffold platform was not fully planked on the levelwhere the employee was working, exposing the employee to a 20 foot fallto the ground.\/Facts\/ Compliance Officer (CO) Marion Moore conducted the June 21,2006 inspection of Burch?s San Diego worksite. During the inspection COMoore photographed Burch employees, including one Rubin Carillo,climbing from the roof onto scaffolding that was not fully planked (Tr.17, 19-22, 37; Exh. C-1 through C-10). CO Moore photographed Carillotraversing a single plank on the top level to reach his work place on aplatform at a ?mid-level? platform three or four feet below (Tr. 34;Exh. 1, 2, 7, 8). He also speculated that employees had been workingfrom top scaffold level, based on the presence of a bucket and toeboardon the single plank located there (Tr. 29). Moore estimated the gapbetween the mid-level scaffold platform and the uprights wasapproximately 10 inches wide (Tr. 25). The gap between the single plankand the uprights was large enough for a man to climb through (Tr.26-28). CO Moore testified employees working from the platforms couldstep back and fall through the unguarded gaps, falling to the pavementover 20 feet below (Tr. 44). Moore testified that a fall from that levelwould result in serious injury or death (Tr. 40, 43). Greg Rodgers, Burch?s supervisor for lath and plastering(Tr. 82), testified that the cited scaffolding was erected in front ofthe dormitory under construction by a scaffolding company, SunrizeStaging, Inc., two months prior to the inspection (Tr. 87). On June 21,2006, Burch employees began the installation of an architectural foamshape at the top of the front wall (Tr. 93). However, the existingworking surfaces on the scaffold were either too high or too low for theinstallers to work from (Tr. 94-95). To install the foam, Burchemployees had to kneel or lie down on the top planked level (Tr. 94-95,116). Burch, therefore, altered the scaffold, moving planks so that theywere supported by the ?half rung,? an intermediate level of crossbarsbetween the standard scaffold levels (Tr. 94-95, 114, 120-21). Becausediagonal supports intersected the intermediate crossbars, only two ofthe standard 10-1\/2 inch planks would fit on the half rung (Tr. 95-96,117). A third plank would not fit into the approximately 9-inch gap thatremained between the planks and the outer scaffold supports (Tr. 97,119, 127). Both Greg Rodgers and his brother, Ben Rodgers, who wascertified in scaffold erection, testified that the intermediateplatforms were temporary; they were erected on the half rung the morningof the inspection, and would remain only until the foam molding wasinstalled (Tr. 114, 120-21, 126). A third plank would not fit on thehalf rung, and when placed in the gap a third plank sat at a 45? angle(Tr. 97, 105). Neither Greg nor Ben Rodgers believed the employeeworking on the intermediate platform was exposed to a hazard (Tr. 123,131). The extra 10-1\/2 inch board from the standard platform levelremained in place, at approximately the waist level of any employeeworking from the half rung (Tr. 104, 123; Exh. C-5). According to Gregand Ben Rodgers, the plank acted as a guard, preventing the employeefrom stepping backwards into the gap (Tr. 123, 131).\/Discussion\/ 29 CFR ?1926.451(b)(1) provides:Each platform on all working levels of scaffolds shall be fully plankedor decked between the front uprights and the guardrail supports as follows: (i) Each platform unit (e.g., scaffold plank, fabricated plank,fabricated deck, or fabricated platform) shall be installed so that thespace between adjacent units and the space between platform and theuprights is no more than 1 inch (2.5 cm) wide, except where the employercan demonstrate that a wider space is necessary (for example, to fitaround uprights when side brackets are used to extend the width of theplatform. (ii) Where the employer makes the demonstration provided for inparagraph (b)(1)(i) of this section, the platform shall be planked ordecked as fully as possible and the remaining open space between theplatform and the uprights shall not exceed 9-1\/2 inches (21.1 cm). Exception to paragraph (b)(1): The requirement in paragraph (b)(1) toprovide full planking or decking does not apply to platforms used solelyas walkways . . . In order to prove a violation of section 5(a)(2) of the Act,the Secretary must show by a preponderance of the evidence (a) theapplicability of the cited standard, (b) the employer?s noncompliancewith the standard?s terms, (c) employee access to the violativecondition, and (d) the employer’s actual or constructive knowledge ofthe violation (\/i.e.,\/ the employer either knew, or with the exercise ofreasonable diligence could have known, of the violative condition).\/Atlantic Battery Co.,\/16 BNA OSHC 2131, 1994 CCH OSHD ?30,636 (No.90-1747, 1994). Respondent does not contest the applicability of thestandard, but argues that it was in compliance with the standard?s terms. The evidence in this case establishes that it was necessaryfor Burch to reconfigure the pre-erected scaffolding to install the foammolding on the subject dormitory. It would be neither reasonable norsafe for Burch?s employees to work on the molding from their knees orwhile lying down. As a masonry subcontractor, Burch did not own thescaffold on site. It did not, therefore, have either permission or theability to cut down the planking provided to make it fit the limitedspace on the half rung. Moreover, that solution would have beenimpractical for what was a temporary work platform. Because the standard10-1\/2 inch planks would not fit onto the half rung without creating atripping hazard, Burch successfully demonstrated that it was necessaryto leave a gap of more than 1 inch between the planking and the uprights. CO Moore?s estimate that the gap exceeded the allowable9-1\/2 inches is not credited. Both Greg and Ben Rodgerstestified the gapdid not exceed 9 inches. Their testimony is preferred over that ofMoore, who never accessed the scaffolding. Moreover their estimate isconsistent with their undisputed testimony that the 10-1\/2 inch boardsat at a 45? angle when inserted between the planking and the uprightson the half rung. Finally, Moore?s contention that employees must have beenworking on the top scaffold level merely because a bucket had beenplaced there is rejected. There is no evidence that the single plank onthe top level was used for anything more than as a walkway, which isspecifically exempted from coverage by the cited standard (Tr. 58-59). Complainant failed to show that Burch was in violation ofthe cited standard, and the citation is vacated.ORDER 1. Serious citation 1, item 1, alleging violation of 29 CFR?1926.451(b)(1) is VACATED. \/s\/ BenjaminR. Loye Judge,OSHRCDated: January 19, 2007”