Yesterday was the first full day of spring. It was 50 degrees at noon here in rarely sunny upstate New York and, if you know anything about this area, you just have to smile. We all act a little like distracted children on days like this. Even at my age I tend to linger outside the coffee shop a few extra minutes talking nonsense to friends I haven't said 10 words to all winter. We take mud season a little more seriously around here than winter because we're due for at least two more nor'easters and a few quick dusters before the earth finally dries out and we trade the tall boots for the short ones. But with a chorus of Canadian geese charging home overhead, I tossed my down jacket back into the truck and crossed Main Street to talk to a general contractor about an upcoming job.
He's working with state grant money to diligently restore a few of the old railroad-style, turn-of-the-century storefronts along Main Street. There are some historical society strings attached to his contract and, as you can imagine, the rules of construction, usually so logical, became a little warped as they passed through back rooms in the state capital. It's okay for the property owner to use vinyl building products on the sides, rear and roof of this building's exterior, but everything parallel to Main Street must be built of the same style, species and finishes as the original. For instance, the large, plate glass display windows of what used to be the old drugstore must now be custom-built, single-glazed, tempered units with true-divided mutton bars at 15 grand apiece.
The state Energy Code had obviously been sidetracked by the "histerical" lobbyists, as they're lovingly referred to down at the state house. With no vinyl allowed, the owner will be up on a 30-foot extension ladder for the next 20 years battling the elements with 10 gallons of latex and a 6-inch brush. But I had to admit it, I was pleased the buildings were still here, reminding us all that we came from far simpler and sometimes more attractive times.
The ProblemJust as I reached the painted stripe in the middle of the street, I noticed the scaffolding erected along the front of the building and froze in my tracks. You can still stand in the middle of the street in our town and be grazed but not hit by oncoming traffic. Folks up from the city just started using their horns last year. Before then we used them only when a blind dog crossed the road.
The condition of those welded end-frame towers and the performance of the builders using it took almost a full minute to sink in. My first instinct was to get back in my truck and return to the coffee shop and forget everything I saw. In my profession as a safety consultant and trainer I've spent the last 10 years biting my lip and keeping my head down whenever I'm talking to friends or driving through my small home town. My wife repeatedly warns me to "stifle it" and "keep my OSHA standards to myself" when we're grocery shopping or having diner with friends. I've got to admit, I'm getting better at staying quiet.
Maybe it was the warm sunshine on my coatless shoulders and the robins hunting worms in the lawn next to me, but a voice inside me gave me permission to go straight in and speak my mind.
I usually live to regret days like this.
I have known this particular contractor for over 30 years. I admit to respecting his workmanship if not his work practices. He has occasionally "brushed up" against OSHA in the past decade and now begrudgingly admits to knowing "a little bit" about the scaffold and fall protection standards. He vociferously protests government regulatory interference in his occupation, but he's had enough accidents over the years to appreciate a well-built guardrail. He doesn't always agree with the safety and health standards, but whenever he feels he might be observed by a passing OSHA inspector he knows how to comply. During an extensive historical slate roof renovation last year, he even hired a scaffold company to install a fully compliant, four-frame running scaffold in front of an old Victorian factory building. When I asked him why he didn't scaffold the job himself, he admitted that the rental company was fully trained in the OSHA standards, crewed by competent erectors, and their equipment was in excellent condition. He also mentioned that the site was in clear view of Main Street across a hundred feet of open lawn.
Now, less than a year later, here he was within 3 feet of the same state highway with an abominable list of violations in plain view. All that was missing was the colored balloons and the brass band. I just had to stop and ask him what he was thinking. I know, it wasn't what my wife had in mind when she said, "stifle it," but in my own defense, I was clearly intoxicated with spring fever.
"Hey Jack," I began, by pointing up to the scaffolding "What are you doing building this mess right here on Main Street?" I continued to rail against his atrocious violations, which upon closer inspection were considerably more hazardous than they first appeared.
"Are you telling me there's an OSHA violation here?" he replied. A group of workers on the scaffolding were applying copper to a short outlook roof along the front of the building over the first floor doors and windows.
"No, Jack," I replied, "There's probably two dozen violations here. My best advice to you, as a friend, is to take this mess down and build it properly before someone gets seriously hurt here." There were three pickup trucks pulled up, with two wheels on the sidewalk. Sawhorses, lead chords, tools and debris were scattered over 30 feet. My expletives were becoming colorful and beyond conversational and a crowd of construction workers was beginning to knot up around us. They must have thought, "Who was this guy and is he off of his medication?"
Jack put a hand on my shoulder, smiled and pointed to another tool-belted young gentleman in Carharts further down the sidewalk. "This scaffold is his, not mine," he said.
It was then I noticed the name on the 3/4-ton pickup parked next to me. It was a large roofing contractor with several offices located here in the northeast, employing close to 200 roofers year round.
"Did you subcontract them?" I asked. He knew he would assume as much liability for any subcontractor's violations and possibly more if that were the case.
"No," he replied with a relaxed smile, "The owner hired them. They're just replacing a few clapboards for me above their roof flashing since their scaffolding was up already. I would have had to set up my own staging just to install a few courses. Besides, it's right here on Main Street." He smiled, referring to his personal policy of invisibility.
I noticed one of his carpenters cutting pieces of siding on a chop saw and running them up a ladder to the roofing crew who were gun nailing them into place. He didn't understand his obligations to his employees to "provide a safe and healthy work place." Meanwhile pedestrians were struggling to walk beneath the shaky scaffold carrying packages and pushing their children ahead. It was beyond my limit to remain silent. I just had to speak with the roofing foreman, who was now approaching me with a mix of fear and aggression on his face. My friend hung around to watch the fireworks.
"Is this your scaffold? Are those your men up there?" I asked.
"It sure is. They sure are." He answered with a grin. "Look, I took a scaffold course a few years ago, so I could be a competent person. So I know everything what's wrong here. I told my guys just what to look out for up there." He actually stood up straight and looked proud as could be. Just then one of the town's attorneys approached on the sidewalk and stopped. He looked at me, then up to the scaffold and started to cross to the opposite side of the street. Traffic had picked up preventing his crossing mid-block so he just shrugged his shoulders, and cautiously picked his way beneath the scaffold. I called up to the crew above to stop what they were doing and hold onto their tools and materials until the gentleman had passed below. Once clear of the air lines, electrical cords and debris field, he turned to look back at me with a shake of his head and a wave of thanks.
This was an out-of-state roofing contractor from a town just across the line. In less than an hour their work would be completed, the scaffold dismantled and back in the roofer's trucks and they'd be headed home. There was no point in even considering calling a compliance officer from OSHA Albany to come investigate what is obviously an Immediately-Dangerous-To-Life-And-Health condition.
This was as dangerous a scaffold site as I have ever encountered. This was one of those "only be at risk for a minute" jobs where I'm always told "we've done it this way for years without an accident." I was wondering what it would take to ensure that no one was injured in the next 45 minutes.
The Site AuditI crossed the street to the opposite sidewalk to take a broader look at the scene. My camera was full of film back in the truck, but I decided to commit it to memory instead. Here's what I saw:
There was no controlled access zone around the base of the scaffolding (1926.451(h)(1)). It was constructed in a public right-of-way. There was pedestrian and vehicular traffic beneath and within close enough proximity that someone, including other employees, could be seriously injured if a nail gun or hammer was dropped from above (1926.451(h)(2)(I)). Danger barricade tape, barrier cones, posted signs and/or debris netting could have been installed to protect those authorized and unauthorized personnel passing below (1926.451(h)(2)(v)). Considering the overall condition of the scaffold itself, it had a potential to tip over creating a falling object hazard at least as wide as the scaffold height of 12-14 feet, directly into the westbound lane of traffic.
The housekeeping (1926.451(f)(13) on and below the scaffold was non-existent. It was obvious the roofer was in a hurry to get the job done and the scaffold dismantled. Little
attention was being paid to the buildup of scrap and waste materials, tools and equipment scattered on the sidewalk (1926.250(c) & 1926.252(c)). I picked up a 4-foot level laying underneath the wheels of the pickup and put it on the tailgate. Air hoses and electrical cords ran over walkways and through doorways and hung precariously off the scaffolding where they could be dislodged or damaged (1926.405(A)). There were enough new and used nails on the sidewalk to frame a small house, but I decided I was just being compulsive. I had a few employers in my time who would have fired me on the spot after seeing this mess.
The air gun was lowered by one roofer to the ground by means of the air line (1926.302(a)(6)). The roofer was using a pneumatic nail gun without wearing adequate ANSI Z87.1 protective safety glasses (1926.300(c)). Hardhats were not being used by those construction workers exposed to potential falling object hazards ( 1926.100(a)). The 10-inch diameter electric chop saw being operated by the carpenter was plugged into the building's electrical system without attaching a ground fault circuit interrupter between the source and the contractor's lead cord (1926.405(a)(2)(ii)(I) and 1926.404(b)(1)(ii)).
The contractor had set up two independent 5- by 7-foot towers approximately 12 feet high. The sidewalk sloped about 12 inches in 16 feet. There were no base plates installed in the uphill legs. Adjustable screw baseplates existed in the downhill legs of each tower. Even to my bad eye, neither tower was exactly plumb in either direction (1926.451(c)(3)). The baseplates were not nailed to mudsills, but resting on top of irregular, heaved 3- by 3-foot sidewalk slates (1926.451(c)(2)). There was scrap lumber driven under several down tubes to prevent the scaffold from rocking on the uneven surfaces (1926.451(c )(2))
The end frames of the scaffold were rusted, dinged, bent, cut and spot-welded in places. The uprights on the end-frames were not safety-pinned together vertically (1926.451(c)(3). The cross bracing was also rusted and bent (1926.451(f)(3)-(4)). There was #9 wire wrapped around one connection indicating at least one busted keeper pin (1926.451(f)(3)-(4)). There was no cross bracing between the second level frames of each tower on the side facing the building (1926.452(c )(2)). The building had an entry door located between the scaffold towers that stood about 20 feet apart. Each tower was independent of the other with no bracing or putlogs creating a rigid connection between them (1926.451(a)(6). The bases of their frame legs were not connected by mudsills (1926.451(c )(2)).
The towers were below Subpart L's minimum working height (4 times the minimum base dimension = 20 feet) where guying, tying or bracing to the building would have been required. However, OSHA's standards are minimum safe work practices. Considering the overall condition and insecurity of the scaffold erected between large plate glass windows and a heavily trafficked road, adequate bracing to the building would have been a minimal sacrifice of time and money on the contractor's part (1926.451(c(1)(iii)).
The towers consisted of two 6-foot high sections. The top bearer bars on both towers were not at equal elevations, by several inches (1926.451(f)(7)). The roofing contractor had installed a single 24-foot long aluminum staging "pick" between the two towers not designed for the purpose by either manufacturer (1926.451(b)(10)) and the working level was not fully planked (1926.451(b)(1)). The pick rested at a compound angle and completely unsecured to both end frames of the uphill and one bearer bar of the downhill scaffolding (1926.4521(b)(4)). Approximately 2-3 feet of the pick cantilevered beyond the downhill end-frame (1926.451(b)(5)(I)), which had a piece of 2-by-4 duct-taped on top of the bearer bar in order to support the bottom of the pick (1926.451(c )(2)).
Access to the work level was made by climbing the "fly" section of an aluminum extension ladder and, therefore, not used for the purpose the manufacturer intended. (1926.1053(b)(4)). The fly section was in visibly poor condition (1926.1053(b)(15)-(16)) and had no slip-resistant feet (1926.1053(b)(7)) where it rested on unlevel sidewalk slates (1926.451(c )(2)(I)). It was not tied or secured in any way at either the top or the bottom to prevent the base from kicking out or the top from sliding sideways (1926.1053(b)(6)). It was fully unprotected and surrounded by debris at its base (1926.1053(b)(9)) where it could have been easily dislodged by passersby or equipment (1926.1053(b)(8)).
While it appeared to be resting at approximately 70-80 degrees (4:1 rise/run ratio) it rested along side the end of the pick but did not extend more than 10 inches above the top of the pick (1926.1053(b)(1)). The carpenter made access onto the scaffolding climbing up the ladder while carrying 12-foot lengths of clapboard in one hand which interfered with his ability of climb and possibly cause him to fall (1926.1053(b)(21)-(22)). While the ladder rested on the uphill 5-foot side of the 12-foot high tower, which was neither secured to the pick nor braced to the building, there was a potential for live-load climbing forces to tip the tower (1926.451(f)(2)(i)). During erection and dismantling there was no evident means of compliant access based on site conditions and type of scaffold (1926.451(e)(9)(I)). It was evident that the foreman and his workers were not adequately trained and evaluated in the safe use and inspection of ladders (1926.1060(a)).
The top of the aluminum staging pick was more than 10 feet above a lower level and was not equipped with a four-sided guardrail system (1926.451(g)(4)). Pick manufacturers have a system of corner posts, top rails and midrails, toe boards and safety gates available for almost every model they offer.
None of the scaffold workers 10 feet above a lower level were wearing PFAS, each adequately attached to a 5,000-pound anchor point (1926.451(g)(1)(vii)). It is only logical that the same foreman, with the same crew for erecting, using and dismantling the scaffold, did not have a site-specific fall protection plan for the erection and disassembly, including PFAS and suitable anchorage points (1926.451(g)(2)).
The platform had been positioned approximately 24 inches away from the wall of the building so that the workers could reach over the eaves of the short outlook roof to install both copper and siding (1926.451(b)(3)). The width of the staging "pick" as approximately 20 inches and the side rails were approximately 5-6 inches deep. That would indicate it was a medium-duty, two-man staging with a 500-pound maximum rated load. Even if it were rated heavy-duty, it would have a capacity of three men or 750 pounds maximum. There were two to four roofers on the pick at any one time, with an approximate maximum intended load of up to 800 pounds (1926.451(a)(1); 1926.451(f)(1)).
The foreman volunteered that he had taken a scaffold safety training class and considered himself a competent person capable of designing a scaffold (1926.451(a)(6)). It was obvious that he had not retained the requisite information to work on scaffolds safely (1926.454(c)) and therefore that the scaffolding had not been erected by or would be disassembled under the direct supervision of a competent person (1926.451(f)(7)). While I did not ask the foreman if anyone else in his crew or the one the carpenter "loaned" to him had received any Subpart L scaffold training (1926.454(a)) from a competent person trainer, it was clear that they had not been either adequately evaluated or retained the requisite information to perform their work to the minimum safety standards required (1926.454(a),(b)).
As the roofer was installing the last clapboard he stood on the approximately 3-foot cantilevered end of the unsecured "pick" over the bearer bar to reach the outside corner of the building (1926.451(b)(5)(I)). He stood on an aluminum staging bearing on steel scaffold frames resting on the ground. His head was two feet below the electrical weather head where there was a 200-amp triplex service entrance to the building, which ran from a transformer pole about 20 feet away (1926.451(f)(6)). The aluminum and steel scaffold members (conductors to ground) lay approximately 8 feet below the entrance wires. While this is considered a low-voltage power source, it should have been either disconnected or provided with rated insulating blankets by the power company if a worker was required to enter the 10-foot minimum induction zone for circuits under 50 kV. If the roofers or the scaffolding had been energized by a discharge of uncontrolled energy, up to four employees could have been electrocuted (1926.417(a)-(c); 1910.147(c)(1)).
ConclusionOK, I didn't have to stop and ask who was responsible for the work site. After all, I've probably driven right past a hundred such local construction sites within the last year without so much as touching the brakes. Just what do I expect from these part-time farmers and weekend truck drivers? Maybe I'm becoming somewhat complacent about small contractors' risk behaviors. They don't own, much less read, the current OSHA standards. They have no organized safety and health programs that reflect their workplace hazards. They've never offered standards-based, competent training to their employees. Any site audits they might rarely perform register percent completion rather than hazard controls. I realized that when I offer safety suggestions on a regular basis to friends and acquaintances it can certainly strain relationships beyond their tensile strength. My hometown is small and my actions, regardless of how well intentioned, are bound to ricochet a bit before finally coming to a rest. But with over 50 potentially citable hazards-both serious and non-serious-on this small site, it made the hair on the back of my neck stand up. That's quite an achievement after all I've seen over the years.
Sites with construction scaffolding still generate emphasis inspections out of my local OSHA area office. The injury and fatality statistics still do not bear witness to contractors voluntarily complying with the scaffold standard revised only six years ago. An OSHA inspection of this high-profile site would have identified the roofing contractor as the both the "creating" and "exposed" employer as well as the carpentry contractor as an "exposed" employer. Although parallel in the contract flow chart, each contractor would have been
liable for the other's unsafe work practices and conditions if their employees were actually exposed to any hazards, even if they had not created them.
Had the roofing contractor confirmed to a compliance officer that he and some of his crew had attended a Subpart L Scaffold training course within the past few years, violations could have been upgraded to a "willful " status, potentially increasing the fine to as much as 10 times the original penalty.
I have been witness to that political pendulum that is OSHA, inevitably swinging in favor of the employer. The cutbacks on enforcement funds and watering down of labor's right to a safe and healthy workplace continue to this day. Downsizing big government, deregulating industries, the Paperwork Reduction Act, decentralizing the power structure to the state level-these are all currently popular political trends showing no signs of soon abating. I believe, however, that a free market self-corrects and eventually the Worker's Compensation Insurance Fund will necessarily create a hard-dollar fulcrum levering workplace safety back on par with OSHA's minimum standards established over 30 years ago.
The General Duty Clause of the OSH Act notwithstanding, a forceful change will come from a bank not a courthouse. Knowing how much power the insurance lobby wields inside Washington, increases in on-the-job losses will ultimately control the marketplace and mandate that individual contractors pay closer attention to their experience modification rate and reduce workplace accidents, injuries or illnesses-or else retire into obscurity. My grandmother swore she never could make a blanket longer by cutting off the top and sewing it to the bottom. She knew something most of my friends in this business don't suspect. You have to invest in safety if you want to grow to survive.