SECRETARY OF LABOR.
Complainant,
v.
SAL MASONRY CONTRACTORS, INC.,
Respondent.

OSHRC Docket No. 87-2007

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

Sal Masonry was the masonry contractor for the building of Savage Hall, an academic building at Cornell University in Ithaca, New York. As a result of an inspection by Ralph Rose, a compliance officer for the Occupational Safety and Health Administration ("OSHA"), a citation was issued which, as amended, alleged willful, as well as repeated and serious, violations of the ladder and scaffolding standards at 29 C.F.R. § 1926.451(a)(8), (a)(13), and (d)(10). Penalties of $10,000 were proposed for each of the three alleged violations.

Sal Masonry contested the citation and a hearing was held before former Commission Administrative Law Judge Foster Furcolo. Judge Furcolo found violations of each cited standard and characterized each violation as repeated and serious. He assessed penalties of $200 each for the violations of section 1926.451(a)(8) and (13) and $500 for the violation of section 1926.451(d)(10). Review was directed on the issues of: (1) Whether Sal Masonry violated section 1926.451(a)(13) by failing to provide an access ladder or "equivalent safe access" to scaffolding, and, if so, whether that violation was willful; and (2) Whether the judge erred in holding that Sal Masonry's violations of section 1926.451(a)(8) and (d)(10) were not willful.[[1]] For the reasons set forth below, we vacate that part of the citation alleging a violation of section 1926.451(a)(13), find that the violation of section 1926.451(a)(8) was not willful, and find that the violation of section 1926.451(d)(10) was willful. We assess a $1000 penalty for the willful violation.

Alleged Violation of Section 1926.451(a)(13): Was A Ladder or Equivalent Safe Access Provided for Scaffolding?

The Secretary alleges that Sal Masonry violated section 1926.451(a)(13)[[2]] by failing to provide an access ladder or equivalent safe access to employees who were seen climbing the frames and braces of scaffolding erected inside an air intake shaft.

To prove a violation of a standard, the Secretary must establish that: (1) the standard applies to the cited condition; (2) the employer violated the terms of the standard; (3) its employees were exposed or had access to the violative conditions; and (4) the employer had actual or constructive knowledge of the violation. E.g., Trumid Constr. Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD ¶ 29,078, p. 38,859 (No. 86-1139, 1990).

It is undisputed that the standard is applicable, and the record is clear that employee exposure was shown. The parties dispute whether the terms of the standard were violated and whether the employer had knowledge of the allegedly violative conditions. The evidence on these issues is in direct conflict.

Five of Sal Masonry's employees or former employees -- Eugene DeLong, Samuel Swan, Dwayne Vorhes, Arthur White, and Gary Stupke -- testified that there was no ladder present to access the scaffolding. All five also testified that they sometimes accessed the scaffold by climbing it. Compliance officer Rose testified that no ladder was present on the first day of the inspection. However, the next morning, after Rose saw an employee of Sal Masonry climbing the scaffolding, he asked company foreman Luke Renna why the employee was climbing the scaffolding. Rose testified that Renna answered, "I don't know. We had a ladder. It must be somebody took it." The company then sent its employees to look for a ladder, and they brought one back and positioned it for access to the scaffold.

Company foreman Renna, labor foreman Craig Zullo, and project manager Don Judge all testified that they had never seen any of their employees climb the scaffolding. Renna and Zullo also testified that there was a ladder at the site. Renna testified that the ladder was lying on the ground near the air intake shaft where the employees worked and that he had taken it down a few days before the compliance officer inspected the site because he did not want any of the college kids climbing it and getting hurt falling into the shaft. Zullo testified that the ladder was lying on the ground outside the air intake shaft, but he stated that it had never been put up because the employees preferred to access the scaffolding by using stairs and other scaffolding.

Judge's Decision

The judge concluded that "[t]he evidence clearly established that there was no ladder" present to access the scaffold. Instead of specifically stating what that evidence was, however, the judge merely listed a series of transcript pages that he apparently believed contained testimony supporting his conclusion. He did not specifically refer to any of the evidence presented above in framing his conclusions. Instead of separately considering whether the Secretary proved that Sal Masonry had actual or constructive knowledge that a ladder was not present to access the scaffolding, the judge resolved the knowledge issue as to all three of the alleged violations referred to in the direction for review by concluding that "Respondent knew, or should have known, of all the alleged hazardous conditions. All were in plain sight or were admitted by supervisory personnel of the Respondent." His finding was followed by an enumeration of the transcript pages which presumably contained the evidence to support the finding.

Discussion

To establish that section 1926.451 (a)( 13) was violated, the Secretary must show that no ladder was provided. The Secretary's evidence demonstrates that there was no ladder and that employees climbed the scaffolding to access their workplaces. The company's evidence demonstrates that there was a ladder and that none of the company's supervisors had seen any of their employees climb the scaffolding.

In order to prove knowledge in this case, the Secretary must show that the company either knew or, with the exercise of reasonable diligence, could have known that there was no ladder present to access the scaffolding. See Daniel Constr. Co., 10 BNA OSHC 1254, 1256, 1982 CCH OSHD ¶ 25,840, p. 32,328 (No. 80-1224, 1981). The Secretary argues that she proved knowledge by showing that certain of the company's employees, and one of its supervisors, climbed the scaffolding and that foreman Renna witnessed one of the employees climbing it. Sal Masonry argues that there was no testimony that its supervisors knew that the ladder they had previously placed at the job site had been removed.

With the evidence in conflict, it was necessary for the judge to make credibility findings that specifically resolved the conflicting testimony. Generally, this requires a written analysis of the testimony, including reasons for the finding. See P & Z Co., 6 BNA OSHC 1189, 1192, 1977-78 CCH OSHD ¶ 22,413, p.27,024 (No. 76-431, 1977). See also Asplundh Tree Expert Co., 7 BNA OSHC 2074, 2078-79, 1980 CCH OSHD ¶ 24,147, pp.29,346-47 (No. 16162, 1979). The judge failed to make such credibility findings here. This deficiency would ordinarily result in the Commission remanding the case to the judge for further consideration and explanation. See C. Kaufman, Inc., 6 BNA OSHC 1295, 1298, 1977-78 CCH OSHD ¶ 22,481, p. 27,100 (No. 14249, 1978). However, Judge Furcolo is no longer with the Commission. In light of the Commission's role as the ultimate finder of fact, Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976), we will complete the adjudication of matter.

The Secretary is required to prove each element of her case by a preponderance of the evidence. See Regina Constr. Co., 15 BNA OSHC 1044, 1046, 1991 CCH OSHD ¶ 29,354, p. 39,465 (No. 87-1309, 1991). The judge failed to provide us with credibility findings, and the record does not help us resolve the conflicts in the testimony. We thus have no sufficient basis for crediting the testimony of one set of witnesses over the other. The result is that the evidence as to whether a ladder was present and whether there was knowledge is basically in balance as between the two parties. The Secretary has therefore failed to meet her burden of proving by a preponderance of the evidence that the terms of the standard were violated and that there was employer knowledge. In light of her failure to establish her prima facie case, we vacate the citation insofar as it alleges that Sal Masonry violated section 1926.451(a)(13).[[3]]

Alleged Willful Violation of Section 1926.451(a)(8): Split Planks on Scaffolding

Judge Furcolo found that Sal Masonry violated section 1926.451(a)(8)[[4]] by failing to immediately repair or replace damaged scaffold planks on which company employees worked. He characterized the violation as repeated and serious, and he assessed a $200 penalty. In finding that the Secretary failed to establish that the violation was willful as alleged, the judge concluded that Sal Masonry "did not act in utter disregard of the safety of its employees, and the Respondent did not intentionally violate any cited standard." He supported those conclusions by referring to: uncontradicted testimony that Sal Masonry painted its damaged planks so that they would not be confused with planks in good condition; and testimony from compliance officer Rose that a representative of the company told him that Sal Masonry had an "average" safety program.

The Secretary argues that the judge used the wrong test for willfulness. She contends that the judge apparently concluded that if an employer can point to anything that it has done that has a beneficial effect on employee safety, then the violation is not willful.[[5]] The Secretary contends that the judge's approach virtually writes willfulness out of the Act, since most employers would be able to point to some step they have taken to improve employee safety. She also argues that she proved willfulness on the basis of the entire record.

To prove that a violation was willful, the Secretary must show that the violation "was committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety." A.C. Dellovade, Inc., 13 BNA OSHC 1017, 1019, 1986-87 CCH OSHD ¶ 27,786 (No. 83-1189,1987). To show intentional disregard of a standard, there must be evidence that the employer knew of the applicable standard prohibiting the condition and that it consciously disregarded it. E.g., Williams Enterp., Inc., 13 BNA OSHC 1249, 1257, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987). We agree with the Secretary that the judge used the wrong test for willfulness by requiring the Secretary to establish that Sal Masonry acted in "utter disregard of the safety of its employees." As the quotation from the Dellovade case shows, the Secretary's burden of proving willfulness is not so heavy. Moreover, the evidence relied on by the judge, Sal Masonry's painting of certain of its damaged planks and its "average" safety program, sheds little light on the question of whether the company's violation of section 1926.451(a)(8) was willful.

To prove willfulness, the Secretary relies on a settlement agreement affirming a violation of section 1926.451(a)(8) by the company, evidence of the use of damaged planks by the company's employees, and knowledge of that use by company supervisors. Although we find that the company did have knowledge of the requirements of the standard, our review of the record fails to establish that Sal Masonry's failure to immediately repair or replace damaged planks was willful.

Foreman Renna testified that the company's procedure with respect to split or damaged planks was to use them as mud sills, if possible, but otherwise to either spray paint them or throw them out. Labor foreman Zullo testified that the company paid close attention to cracked planks. He stated that planks that were not considered to be in good condition did not go on the scaffolding because an employee could fall through them and be killed. He also stated that if split planks were found, they would be painted and put in a separate pile from the good planks. Project manager Judge testified that he was on the scaffolding every day and examined the planks for cracks and defects, but he did not discover any problems. He also testified, as did Renna, that if split planks were found they would be used as mud sills or put aside and spray painted. Compliance officer Rose testified that company president Sal Fresina "may have" indicated to him that if split planks were found, they were utilized as mud sills and not as scaffold planking.

The testimony of company officials was corroborated by employee Stupke, who testified that Sal Masonry instructed employees who saw a cracked plank to tell a supervisor so that the plank could be replaced. Employee White testified that Sal Masonry informed its employees that if they saw a cracked plank, it would be replaced immediately. White also testified that Sal Masonry would correct any safety violations he brought to their attention.

The Secretary contends, however, that employees Swan, Vorhes, White, and Stupke all testified that they worked on cracked or notched planks on the air intake shaft scaffolding. Although these employees did testify that they worked on damaged planks, we find that their testimony cannot be relied upon to support the Secretary's willful allegation because the same employees provided testimony that tends to disprove willfulness. Employees Swan and White testified that they never notified a supervisor of the cracked or damaged planks. Employee Vorhes also testified that he never told anyone from Sal Masonry about the cracked planks and also testified that he never saw a supervisor view a split plank. Although employee Stupke testified at the hearing that he did not think he had been told to notify a supervisor of the existence of split planks, he also testified to the truth of a pre-hearing statement he gave that employees were in fact instructed to notify a supervisor if they saw cracked planks, so that the planks could be replaced and work could be resumed.

The Secretary further relies on evidence that shows Sal Masonry's supervisors knew about the damaged planks. She claims that employee DeLong testified that labor foreman Zullo told him to work on scaffolding where there were damaged planks and worked with him in such areas. DeLong also testified, the Secretary points out, that he complained to project manager Judge about damaged planks, but that nothing was ever done about them.

Sal Masonry attacks the credibility of employee DeLong because DeLong had been fired by labor foreman Zullo. Zullo testified that he had never been told of any split planks and that he had never told DeLong to work where there were split planks. Project manager Judge testified that he had never seen split planks at the Cornell jobsite before the inspection by compliance officer Rose. Foreman Renna testified that he did not recall any employees telling him there were split planks on the scaffolding and that he did not see any split planks other than the one pointed out to him by the compliance officer in an area where Renna had not been. Because the judge did not specifically resolve the conflicting testimony of DeLong and the company's supervisors, we have no particular basis for crediting either DeLong or the supervisors. Thus, we cannot conclude that DeLong's testimony establishes that Sal Masonry's supervisors knew of the cracked planks.

The Secretary also points to compliance officer Rose's testimony that foreman Renna told him that damaged and cracked planks had been thrown off scaffolding at another site and used as scaffolding at the Cornell site. Foreman Renna denied making the statement, however, and the judge did not resolve the conflict in the testimony between Rose and Renna. Once again, we have no basis for resolving the conflicting testimony. Therefore, we cannot say whose testimony is more persuasive, and we must find that compliance officer Rose's contradicted testimony provides no support for the Secretary's allegation of willfulness.

We also reject the Secretary's contention that the violation was willful because the company had previously been cited for violating the same standard. Under Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ¶ 23,294, p.28,171 (No. 16183, 1979), the Secretary makes out a prima facie showing that a violation is repeated by establishing that there was a Commission final order against the same employer for a substantially similar violation. Substantial similarity can be shown by demonstrating that both violations are of the same standard. However, such a showing, standing alone, is not sufficient to establish a willful violation. In D.A. & L. Caruso, Inc., 11 BNA OSHC 2138, 2142, 1984-85 CCH OSHD ¶ 26,985, p.34,694 (No. 79-5676, 1984), the case relied on by the Secretary, there was ample additional evidence which compelled the finding of a willful violation. In this case, however, as outlined above, the testimony supporting a willful determination is in conflict. Because the judge failed to resolve the conflicts, we are unable to choose from the conflicting versions of testimony, and we conclude that the violation was not proven to be willful.

Alleged Willful Violation of Section 1926.451(d)(10): Scaffolding Without Guardrails or Toeboards

The judge found that Sal Masonry committed a repeated, serious violation of section 1926.451(d)(10) [[6]] by failing to provide standard guardrails and toeboards for tubular welded frame scaffolding on which employees worked. He assessed a $500 penalty. The judge concluded that the violation was not willful without providing any specific reasons for his conclusion, stating only that the company painted damaged planks and that the compliance officer rated its safety program "average." The judge relied on this same evidence in finding that the violation discussed above was not willful. Therefore, his decision provides us with virtually no insight into whether Sal Masonry willfully violated section 1926.451(d)(10).

However, our own review of the record indicates that the Secretary did establish a willful violation of section 1926.451(d)(10). The evidence clearly demonstrates that Sal  Masonry knew of the cited standard. It had received three prior citations alleging violations of the same standard in January, August, and December of 1985. The company's attorney conceded that Sal Masonry failed to contest two of the citations, and that it had settled the guardrail portion of the third citation by agreeing that it be affirmed. [[7]] Further evidence that Sal Masonry knew of the standard's requirements is provided by a letter written by company president Fresina to OSHA less than two weeks before the violations involved here occurred, acknowledging that "toeboards were not in place" on scaffolding at the Savage Hall construction site.

In addition, the evidence shows Sal Masonry consciously disregarded the standard. Compliance officer Rose testified that when he arrived at the jobsite, he observed employees, including foreman Renna, working on unguarded scaffolding. Rose testified that when he asked Renna why guardrails were missing from the scaffold, Renna responded, "he [Renna] had been told that there should be guardrails put on the scaffold; that he [Renna] just hadn't gotten around to doing it. [[8]]

Sal Masonry contends that compliance officer Rose is not a credible witness and that he is biased against it. The company further argues that because it has called the compliance officer's credibility into question, the judge's. credibility findings should be given deference. Thus, it claims that the judge's finding that the compliance officer's characterization of the company's safety program as "average" was more compelling than the compliance officer's testimony on willfulness. We conclude that there is no merit in either argument. First, on the matter of credibility, the judge did not make any credibility finding with respect to the compliance officer's testimony that he gave an "average" rating to the company's safety program. The judge simply referred to the testimony, in the absence of any direct testimony that the company's safety program should have been given some different rating, to help him justify his determination that the violation was not willful. Second, on the matter of alleged bias, compliance officer Rose testified on at least two occasions during the hearing that foreman Renna told him that he knew guardrails were required on the scaffolding, but that he just "hadn't gotten around" to installing them. Foreman Renna never contradicted this testimony. Nor has the company claimed that the testimony was inaccurate. Therefore, even if we were to conclude that the company's allegation of bias against the compliance officer has some merit to it -- and we do not so conclude -- it would not affect the alleged willfulness of the violation of section 1926.451(d)(10). Moreover, as we have already noted, that a company's safety program is average is not dispositive of the willfulness of a violation.

The company also argues that the violation was not willful because it had hired an employee specifically to construct guardrails for the scaffolding on the site. In light of the failure of the company's supervisors to have the guardrails installed, however, this argument is without merit. We similarly reject the company's argument that guardrails were removed temporarily in order to bring material up to the scaffold. The unrebutted testimony of compliance officer Rose is that when he asked foreman Renna if the company was in the process of erecting or dismantling the scaffold, Renna responded in the negative. Further, foreman Renna's statement that he had not gotten around to putting up guardrails refutes any suggestion that all absent guardrails might have been taken down so that material could be brought up to the scaffold, as opposed to their never having been put up in the first place. We, therefore, conclude that the violation of section 1926.451(d)(10) was willful.

Penalty

Based on the penalty factors enumerated in section 17(j), 29 U.S.C. § 666(j), of the Occupational Safety and Health Act, we assess a penalty of $1000 for the willful violation of section 1926.451(d)(10). Sal Masonry had a prior history of violating this and other OSHA standards, and the gravity of this violation was high as an employee could fall from 36 to 42 feet to his death from the unguarded scaffolding.

Order

Accordingly, we vacate the citation insofar as it alleges that Sal Masonry violated section 1926.451(a)(13). We find that the repeated, serious violation of section 1926.451(a)(8) was not willful and leave intact the judge's $200 penalty assessment for the violation. Lastly, we affirm the repeated, serious violation of section 1926.451(d)(10) as a willful violation and assess a $1000 penalty.

Edwin G. Foulke, Jr.,
Chairman

Donald G. Wiseman,
Commissioner

Velma Montoya,
Commissioner

Dated: May 7, 1992

SECRETARY OF LABOR.
Complainant,
v.
SAL MASONRY CONTRACTORS, INC.,
Respondent.

OSHRC Docket No. 87-2007

DECISION

This case arose under 29 USC, § 651, et seq. of the Occupational Safety and Health Act of 1970 (the Act). As a result of an inspection by the Occupational Safety and Health Administration (OSHA), of the Respondent's premises on or about May 27, 1987 to November 24, 1987, Citations were issued on or about November 24, 1987, charging [as amended] that the Respondent violated sec. 5(a)(2) of the Act by the serious violation of the standard at 1926.451(d)(3); the serious, willful, and repeated violation of the standard at 1926.451(a)(8); the serious, willful, and repeated violation of the standard at 1926.451(a)(13); the serious, willful, and repeated violation of the standard at 1926.451(d)(10); the serious and repeated violation of the standard at 1926.451(a)(14) and the other than serious violation of the standard at 1926.602(c)(1) (VI) - respectively, Item 1 of Citation 1; Item 1 of Citation 2; Item 2 of Citation 2; Item 3 of Citation 2; Item 1 of Citation 3; and Item 1 of Citation 4.

On or about December 1, 1987, the Respondent filed Notice of Contest to said items of the Citations and the penalties proposed therefor.

The pertinent sections of the Act and the standards are appended to this decision under appropriate titles.

CITATION 1, ITEM 1
[451 (d) (3)]

The Respondent's labor foreman [Zullo] and the Complainant's Compliance Officer [Rose], were the main witnesses concerning whether the scaffolding was properly braced. Although Zullo said the scaffolding was properly braced, his testimony was weakened by his concession that the bracing wire was "a little loose" and had "a sag in it"... Tr.II, 275-277. Rose testified that the scaffold was not properly braced and that it was easily moved ...Tr.144, II-17, 19, 275, 276. I find that the scaffold in question was not properly braced.

CITATION 2, ITEM 1
[451 (a) (8)]

The uncontradicted evidence established that the scaffolding had several planks that had been damaged by dry rot and cracks or splits ...Tr.33, 34, 40, 43, 111, 124-128, 160. I find that some scaffolds so damaged or weakened had not been immediately repaired or replaced.

CITATION 2, ITEM 2
[451 (a) (13)]

The evidence clearly established that there was no ladder at the place in question ... Tr. 15, 46, 67, 85, 113, 117, 179. However, the Respondent contended that there was an "equivalent safe access" provided by a longer route that made use of a stairwell, scaffolding, and flooring ...Tr.II-207-221, 302-308.

Assuming that the route so described was an "equivalent safe access" [as indicated at Tr.II-127], that defense would still be rejected. There is nothing to establish that employees were trained or instructed to use it to the exclusion of other less safe means of access. Moreover, where [as here] there are two or more paths of access available to employees, it is unreasonable for an employer to assume that employees would always use the longer or more inconvenient way.

I find there was no ladder and an equivalent safe access was not provided.

CITATION 2, ITEM 3
[451 (d) (10)]

The uncontradicted evidence established that some scaffolds did not have guardrails at all open sides and ends. The Compliance Officer [Rose] testified that the Respondent's foreman [Renna] conceded the point ... Tr.47, 48, 208, 225.

I find that some scaffolds did not have guardrails at all open sides and ends.

CITATION 3, ITEM 1
[451 (a) (14)]

There was no contradiction of the evidence that established that some scaffold planks extended over their end supports less than 6 inches or more than
12 inches...Tr.233-240 and Exh. C-33 and C-34.

I find that some scaffold planks extended over their end supports less than 6 inches or more than 12 inches.

CITATION 4, ITEM 1
[1926.602 (c) (1) (V)]

The Compliance Officer [Rose] testified that the emergency brake on the vehicle in question was inoperable and that its driver said it wasn't working properly and should be fixed...Tr.244, II-6, 8, 310. That testimony was not contradicted.

I find that the vehicle did not meet the ANSI requirements.

KNOWLEDGE

The Respondent knew, or should have known, of all the alleged hazardous conditions. All were in plain sight or were admitted by supervisory personnel of the Respondent ... Tr.15, 109, II-46, 48, 69, 75-78, 327.

HAZARD

Except for the violation alleged in Item 1 of Citation 4 [29 CFR 1926.602 (c)(1)(VI), the hazard consisted of broken bones or death caused by a fall of 25 feet ... Tr.155,162,181.

DEGREE OF VIOLATION

Four of the citations that alleged serious violations were amended to include repeated misconduct by the Respondent; and three of the four were amended to also include its willful misconduct. Was there justification for "repeated" or "willful" citations?

The POTLATCH case [7 OSHC 1061] and the FOTI case [10 OSHC 1937] point out that a violation may be characterized as "repeated" if it is based on the same standard or the same hazard or is factually substantially similar to an earlier violation. Here, the citations alleged to be "repeated" were based on the same standard, the same hazard, and substantially similar facts. I find that the four citations in question were properly characterized as "repeated" ...Exh.C-8. 13, 21 , 30-32, 35.

To establish that the citations were willful, the Complainant basically relied on two elements of proof: 1) the earlier violation of the same standard ... Exh.C-8-10, 13, 21, 30-32, 35 and, 2) testimony that tended to establish that the Respondent's foreman [Renna] knew that damaged planks from another jobsite were transported for use in the scaffolds at the jobsite in question ... Tr.168, II-106, 107.

However, there was also uncontradicted testimony by supervisory personnel of the Respondent that damaged planks were identified by paint so they would not be used as regular planks ...Tr.II 311. Distinguishing the damaged planks in that way would seem to indicate that the Respondent had some regard for the safety of its employees. Certainly such conduct on the part of the Respondent is inconsistent with a willful violation.

There is also the testimony of the Compliance Officer [Rose] that he had rated the Respondent's safety and health program as average ... Tr.II-172. That certainly is inconsistent with willful violations.

I find that the Respondent did not act in utter disregard of the safety of its employees, and the Respondent did not intentionally violate any cited standard.

FINDINGS OF FACT

Having heard the testimony, observed the witnesses, and examined the exhibits, the following Findings of Fact are made:

1. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines.

2. As concerns Item 1 of Citation 1, some scaffolding was not properly braced but was loose and easily movable.

3. As concerns Item 1 of Citation 2, some planks had become damaged or weakened but had not been immediately repaired or replaced.

4. As concerns Item 2 of Citation 2, there was no ladder or equivalent safe access.

5. As concerns Item 3 of Citation 2, some scaffolds had no guardrails.

6. As concerns Item 1 of Citation 3, some scaffold planks extended over the end supports less than 6 inches or more than 12 inches.

7. As concerns Item 1 of Citation 4, the vehicle's emergency brake was inoperable; and the vehicle did not meet the ANSI requirements.

8. The conditions described in Item 1 of Citation 4 exposed the Respondent's employees to sustaining harm because of the hazard of brake not holding.

9. The conditions described in each Item of Citations 1, 2, and 3 exposed the Respondent's employees to sustaining serious or fatal harm because of the hazard of a fall of 25 feet.

10. One or more officers or supervisory personnel of the Respondent knew of the hazardous conditions described herein and knew that employees were exposed to such hazard.

CONCLUSIONS OF LAW

1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety & Health Review Commission has jurisdiction over the subject matter, and the parties.

2. At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations.

3. On the date in question, the Respondent was not in compliance with the standards at 29 CFR 1926.451 (a)(8), (a)(13), (a)(14), (d)(3), (d)(10), and 1926.602(c)(1) and the Complainant has sustained the burden of proving the Respondent violated sec. 5(a)(2) of the Act (sec. 654).

ORDER

The whole record having been considered, and due consideration having been given to 29 U.S.C. sec. 666(j),
it is ordered:

1. Item 1 of Citation 1 is affirmed as a serious violation, and a penalty of $100 assessed therefor.

2. Item 1 of Citation 2 is affirmed as a serious and repeated violation, and a penalty of $200 assessed therefor.

3. Item 2 of Citation 2 is affirmed as a serious and repeated violation, and a penalty of $200 assessed therefor.

4. Item 3 of Citation 2 is affirmed as a serious and repeated violation, and a penalty of $500 assessed therefor.

5. Item 1 of Citation 3 is affirmed as a serious and repeated violation, and a penalty of $100 assessed therefor.

6. Item 1 of Citation 4 is affirmed as an other than serious violation, and a penalty of zero assessed therefor.

So ordered.

FOSTER FURCOLO
Judge, OSHRC

Dated: October 27, 1988
Boston, Massachusetts

APPENDIX
THE ACT

STANDARDS

29 CFR 1926.451(a)(8): "Any scaffold including accessories ...
damaged or weakened from any cause shall be immediately repaired or replaced."

1926.451(a)(13): "An access ladder or equivalent safe access shall be provided."

1926.451(a)(14): "Scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches."

1926.451(d)(3): "Scaffolds shall be properly braced...
so that that erected scaffold is always plumb, square, and rigid..."

1926.451(d)(10): "Guardrails shall be installed at all open sides and ends."

29 CFR 1926.602(c)(1)(Vl): "All industrial trucks in use shall meet the applicable requirements of...maintenance, and operation, as defined" in ANSI B 56.1-1969.

FOOTNOTES:

[[1]] The direction for review specified only these issues. Ordinarily, the Commission does not decide issues that are not directed for review. 29 C.F.R. §§ 2200.92(c), .93(a). We observe that policy here. Therefore, we do not review those parts of the judge's decision affirming serious and repeated violations of section 1926.451(a)(8) and section 1926.451(d)(10) in our consideration of whether the judge erred in not finding those violations willful. See Tampa Shipyards, Inc., 15 BNA OSHC 1533,1535 n.4,1992 CCH OSHD ¶ 29,617, p. 40,097 n.4 (No. 86-469,1992).

[[2]] Section 1926.451(a)(13) provides:

§ 1926.451 Scaffolding.

(a) General requirements.

....

(13) An access ladder or equivalent safe access shall be provided.

[[3]] Sal Masonry could have complied with the plain terms of the cited standard by providing its employees with either (1) a ladder to access the scaffolding or (2) equivalent safe access to the scaffolding. Since the company's evidence demonstrates that it did provide a ladder and the Secretary has failed to carry her burden of proving that the company did not provide a ladder, we need not inquire into whether the alternative, equivalent safe access, was provided.

[[4]] Section 1926.451(a)(8) provides:

§ 1926.451 Scaffolding.

(a) General requirements.

....

(8) Any scaffold including accessories such as braces, brackets, trusses, screw legs, ladders, etc. damaged or weakened from any cause shall be immediately repaired or replaced.

[[5]] The Secretary provides the following examples of cases where the Commission found willful violations even though the cited employers had taken pertinent steps in behalf of employee safety: Ensign-Bickford Co. v. OSHRC, 717 F.2d 1419 (D.C. Cir. 1983), cert. denied, 466 U.S. 937 (1984); A. Schonbek & Co. v. Donovan, 646 F.2d 799 (2d Cir. 1981); and Empire-Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378 (6th Cir. 1978).

[[6 ]] Section 1926.451(d)(10) provides:

§ 1926.451 Scaffolding.

....
(d) Tubular welded frame scaffolds.

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(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 x 6 inch lumber (or other material providing equivalent protection), and toeboard, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

[[7]] Sal Masonry's argument that the evidence of its three prior violations of the cited standard may not be used against the company because such evidence constitutes unsubstantiated hearsay is rejected. As we noted above, evidence of prior violations may be used as partial support for a finding of willfulness. See D.A. & L. Caruso, Inc., 11 BNA OSHC 2138, 1984-85 CCH OSHD ¶ 26,985 (No. 79-5676, 1984). We also note that the company's attorney assented to the existence of all three violations.

[[8 ]] The Secretary also argues that a willful violation was established by statements from employees. She relies on employee DeLong's testimony that he was unable to erect scaffold guardrails bemuse the company did not provide sufficient material to build them. She further notes that DeLong testified that he apprised supervisors Zullo and Judge about this and that he was told to do the best he could. The Secretary also points out employee Swan's testimony that he worked on scaffolds without guardrails, and that he complained to both the labor foreman and supervisor about the lack of guardrails, without receiving any response until after the compliance officer began his inspection. We do not rely on this evidence in finding a willful violation here. The evidence was essentially contradicted by the testimony of Sal Masonry's supervisory officials, and the judge failed to resolve the conflict in the testimony.