UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-5271
AUTOMATIC SPRINKLER CORPORATION OF AMERICA,
Respondent.

November 30, 1979

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

The principal issue presented by this case is whether the standard that requires guardrails on manually propelled mobile scaffolds that are ‘more than 10 feet above the ground or floor’[1] applies to a scaffold, used by Automatic Sprinkler, which measured only 6 ½ feet from its base to its working platform, but from which there was a potential fall distance of 12 ½ to 14 ½ feet to adjacent floor levels. Administrative Law Judge Seymour Fier found the standard applicable, affirmed the citation for repeat serious violation, and assessed a penalty of $1000. Chairman Cleary directed that the judge’s decision be reviewed by the Commission pursuant to the Occupational Safety and Health Act of 1970[2], § 12(j), 29 U.S.C. § 661(i). We reduce the penalty to $750, but otherwise affirm the judge’s decision.

Five of Automatic Sprinkler’s employees were in the process of installing a sprinkler system in a building under construction in Harrison, New York, when the worksite was inspected by compliance officer John Tomich of the Occupational Safety and Health Administration (OSHA). Tomich was escorted by a representative of the general contractor to the auditorium level of the building, where Automatic Sprinkler was working. On arriving at the auditorium level, Tomich saw Automatic Sprinkler employee Carlo Masci standing on an unguarded scaffold straightening a piece of pipe that had already been installed overhead. The scaffold platform was only 6 ½ feet above the floor on which the scaffold was standing. However, the scaffold was situated in the corner of the auditorium floor, around the perimeter of which were concrete walkways several feet below the level of the floor. Two sides of the scaffold paralleled the two edges of the floor forming the corner. One side was two feet from one edge and the second side was four inches from the other edge. The walkway was six feet below the floor edge on one side and eight feet below it on the other side. Thus, if an employee working on the scaffold platform fell from either of two sides of the platform, he would fall to the concrete walkway, a fall of 12 ½ feet or 14 ½ feet, depending on the side. The scaffold was not equipped with a top rail, midrail, or toeboard, and Masci was not using a safety belt.

Although Automatic Sprinkler’s employees had been working in that general area of the building for about a week prior to the inspection, Masci had not been working in the location at which Tomich observed him until five or ten minutes before Tomich’s arrival. Shortly before Tomich arrived, Masci had walked past that area, noticed that a pipe was out of place, and, he stated, as a ‘spontaneous movement’ proceeded to fix the pipe. In order to do this, he moved the scaffold about ten feet to place it under the pipe. Masci testified that foreman Hajkowski had previously told him more than once that scaffolding ten feet or higher required guardrails and that, if guardrails could not be used, he must use a safety belt.

Following § 1926.451 Scaffolding the inspection, Automatic Sprinkler was cited for a second repeat[3] serious violation of 29 C.F.R. § 1926.451(e)(10). The standard at issue concerns manually propelled mobile scaffolds and provides as follows:

§1926.451 Scaffolding.

(e) Manually propelled mobile scaffolds.

(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail, of 1 x 6 inch lumber (or other material providing equivalent protection), and toeboards, 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.

The citation itself stated:

Standard guardrails and toeboards were not installed at all open sides and ends on manually propelled mobile scaffold(s) more than 10 feet above the ground or floor:

(a) Auditorium—Grade level by Column B 13 Employee observed working at the scaffold platform edge where there was a drop of between 12 and 14 feet above the concrete floor and no protection afforded the employee.

A penalty of $3,600 was proposed.

Judge Fier affirmed the citation. He rejected Automatic Sprinkler’s argument that the standard only applied if the distance between the scaffold platform and the surface on which the scaffold stood exceeded ten feet. Instead, following the Commission’s decision in Julius Nasso Concrete Corp., 77 OSAHRC 45/C6, 5 BNA OSHC 1235, 1977–78 CCH OSHD ¶ 21,720 (No. 7542, 1977), appeal dismissed, No. 77–4107 (2d Cir. Aug. 16, 1977), he held that the relevant distance was the distance an employee would fall from the scaffold platform. Additionally, he found the violation to be repeated but rejected the Secretary’s characterization of the violation as ‘second repeat’, as only one of Automatic Sprinkler’s two previous citations for violation of the cited standard was a final order. Since the violation represented the company’s second, but not third, violation of the cited standard, the employee’s exposure to the hazard was for a short duration, and the exposure to a fall of more than ten feet existed on only two sides of the scaffold, Judge Fier imposed a $1000 penalty instead of the proposed $3600 penalty.

On review, Automatic Sprinkler renews its argument that the standard is inapplicable to the scaffold in question because the scaffold was six feet high and the standard concerns only scaffolds more than ten feet in height. The company contends that it is entitled to rely on the specific provisions of the standard, and cites General Supply Co., 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 1976–77 CCH OSHD ¶ 21,503 (No. 11752, 1977), appeal dismissed, No. 77–1614 (5th Cir. June 22, 1977), essentially for the proposition that the standard was not intended to apply to scaffolds six feet in height. Automatic Sprinkler also relies on Western Waterproofing Co., 77 OSAHRC 56/D2, 1975–76 CCH OSHD ¶20, 646 (No. 14237, 1976) (ALJ), reversed in part on other grounds, 77 OSAHRC 56/C4, 5 BNA OSHC 1284, 1977–78 CCH OSHD ¶ 21,750 (1977), in which Judge James D. Burroughs held a similar scaffold standard inapplicable to a scaffold five feet in height even though one side of the scaffold was 39 inches from a roof edge which was 46 feet above the ground. Automatic Sprinkler also contends that the interpretation of the standard adopted by Judge Fier renders the standard unconstitutionally vague.

We agree with Judge Fier that Automatic Sprinkler violated the cited standard by failing to guard a scaffold that was ‘more than 10 feet above the ground or floor.’ The obvious purpose of the standard is to protect employees exposed to the hazard of falling more than 10 feet from a scaffold platform. It would be inconsistent with this purpose to hold the relevant distance to be that from the scaffold platform to the surface on which the scaffold stands if a person falling from the scaffold would fall a greater distance. See Julius Nasso Concrete Corp., supra.

Contrary to Automatic Sprinkler’s contention, this interpretation does not render the standard impermissibly vague. When challenged for vagueness, a regulation adopted pursuant to remedial legislation must be examined in light of the conduct to which it is applied. United States v. National Dairy Products Corp., 372 U.S. 29, 36 (1963); Brennan v. OSHRC (Santa Fe Trail Transportation Co.), 505 F.2d 869 (10th Cir. 1974). Here, a reasonable employer reading the standard in light of its purpose of protecting employees would readily understand that the standard seeks to protect employees from falls greater than ten feet. Thus, although the phrase ‘more than 10 feet above the ground or floor’ might appear ambiguous if the standard is read in a vacuum, the ambiguity, along with any possible vagueness argument, disappears when the purpose of the standard is considered.[4]

Our decision in General Supply Co., supra, does not support Automatic Sprinkler’s argument that the 10 foot distance should be measured from the surface on which the scaffold rests. In General Supply, both the height of the working surface of the scaffold and the potential fall distance were 9 feet. The secretary did not contend that the scaffold violated § 1926.451(e)(10), the standard at issue here, but instead argued that another standard requiring guardrails on certain scaffolds 4 to 10 feet in height was violated. The Commission held that since § 1926.451(e)(10) was the more specifically applicable standard, the employer could not be found in violation of the more general standard. Thus, General Supply simply held that § 1926.451(e)(10) contains exclusive requirements governing perimeter protection on mobile scaffolds. If did not address the question of whether the phrase ‘more than 10 feet above the ground or floor’ refers to the height of the scaffold or the potential fall distance.

Automatic Sprinkler’s reliance on Western Waterproofing Co., supra, is also misplaced. First, the portion of the judge’s decision on which Automatic Sprinkler relies was not reviewed by the Commission, and is therefore not binding as precedent. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶ 20,387 (No. 4090, 1976), appeal withdrawn, No. 76–4070 (2d Cir. May 17, 1976). But in any event, Judge Burroughs’ decision does not support Automatic Sprinkler’s argument. In Western Waterproofing, a five-foot high scaffold was erected around a chimney on a roof 46 feet above the ground. The scaffold on the side of the chimney toward the exterior of the building was 39 inches from the roof’s edge, but the employee on the scaffold was working on the other side of the chimney, toward the interior of the building. Thus, if the employee fell from the scaffold, he would fall only to the roof, not off the edge of the roof. In holding that the scaffold did not require a guardrail because the working platform was less than 10 feet above the roof, the judge explicitly noted that the employee would have no occasion to work on the side of the scaffold closest to the edge of the roof. Thus, in holding that the scaffold did not require a guardrail, Judge Burroughs relied on the fact that there was no exposure to a fall of more than 10 feet, and his decision is consistent with our holding in this case.

We turn now to the several remaining matters argued on review by Automatic Sprinkler. Automatic Sprinkler argues that Masci’s actions in moving the scaffold and mounting it to adjust the pipe were ‘totally spontaneous.’ Although the thrust of the argument is not entirely clear, Automatic Sprinkler appears to be arguing that it should not be held responsible because it did not know that the scaffold would be used in a situation where the fall distance exceeded the height of the scaffold, particularly since the scaffold was being used on a level below the ground level of the building.

We conclude, however, that Automatic Sprinkler could have known of the violative condition with the exercise of reasonable diligence. An employer has a duty under the Act to anticipate the hazards to which its employees may be exposed and to take the steps necessary to prevent such exposure. Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD ¶ 23, 278 (No. 15841, 1979). Automatic Sprinkler provided the scaffold for its employees to use on the auditorium level, and should have foreseen the uses to which it could be put and the hazards that could arise from its use there. As Automatic Sprinkler’s task was to install sprinkler pipes throughout the auditorium level, the company knew that the scaffold might be positioned anywhere on the auditorium floor, including the corner where the drop to the walkway existed. Thus Automatic Sprinkler should have anticipated that an employee might place and use the scaffold where a fall distance of more than ten feet would exist, and should have made provision for complying with the standard when this occurred. Its failure to do so demonstrates a lack of reasonable diligence.[5]

We also conclude that the violation is a repeated one, as the Secretary alleged and the judge concluded. Automatic Sprinkler had been cited for a violation of the same standard approximately a year before the inspection in this case and the citation had become a final order prior to the inspection. Since the prior and present violations are for failure to comply with the same standard, the Secretary has established a prima facie case of substantial similarity between the two violations. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No. 16183, 1979). Automatic Sprinkler attempts to distinguish the prior violation on the ground that the scaffold in the earlier violation was more than ten feet in height while in this case only the fall distance, not the height of the scaffold, exceeded ten feet. We do not think this distinction is substantial. As we have stated, a reasonable employer reading the standard in light of its purpose would understand that perimeter guarding is required on manually propelled mobile scaffolds whenever the potential fall distance exceeds ten feet. That Automatic Sprinkler interpreted the standard differently does not render the violations dissimilar.

Judge Fier imposed a penalty of $1000 for the violation. However, after considering the factors set out in section 17(j) of the Act, 29 U.S.C. § 666(i), we find this amount to be somewhat excessive. While the violation was a repeated one, only one employee was exposed to the fall hazard, and he was exposed to this hazard for only a few minutes. Therefore, we find a penalty of $750 to be appropriate.

The judge’s decision is modified to assess a penalty of $750 and, as so modified, is affirmed.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: NOV 30, 1979

BARNAKO, Commissioner, concurring in part and dissenting in part:

I agree that Automatic Sprinkler violated 29 C.F.R. § 1926.451(e)(10) for the reasons stated in the lead opinion. For the reasons that follow, however, I conclude that the violation was serious rather than repeated in nature.

In determining whether a violation alleged to be repeated is substantially similar to a prior violation committed by the employer, I look to whether the employer was on notice from the first citation that it should have taken steps to prevent the occurrence of the subsequent violation. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶23,294 (No. 16183, 1979) (concurring and dissenting opinion). Here Automatic Sprinkler was cited for a violation of 29 C.F.R. 1926.451(e)(10). That standard applies to two distinct situations: first, those involving a manually propelled mobile scaffold more than ten feet in height and second, those involving a manually propelled mobile scaffold less than ten feet in height but in which the distance from the scaffold platform to the ground or floor below exceeds ten feet. The first citation concerned the lack of guardrails on a manually propelled mobile scaffold for which the distance from the base of the scaffold to the working platform exceeded ten feet.[6] This citation placed Automatic Sprinkler on notice that scaffolds of the first type noted above required guardrails.

The scaffold in this case, however, was only 6 ½ feet in height. The violation occurred, not because Automatic Sprinkler failed to equip a scaffold more than ten feet in height with guardrails, but because it used a scaffold less than the feet high in a location where there was a potential fall distance of more than ten feet. Hence the citation here involves the second situation noted above.

The conditions for which Automatic Sprinkler was cited in this case are not substantially similar to the conditions for which it was initially cited. The first citation required Automatic Sprinkler to assure that any scaffolds more than ten feet in height that it made available for use by its employees were equipped with guardrails. The citation now under consideration does not require that the company equip scaffolds whose height exceeds ten feet with guardrails; it requires guardrails on scaffolds that are less than ten feet in height where they are used in locations in which a fall greater than the height of the scaffold exists. In other words, while the first citation applies uniformly to all scaffolds over a certain height, the abatement required by the second citation only requires the use of guardrails in a very limited type of situation. The violation encompassed in the second citation was not one that the company was required to prevent based on the notice provided by the first citation.

I would therefore not find the violation to be repeated. The Secretary alleged that the violation was also of a serious nature, and the judge affirmed the ‘repeat serious’ citation with a finding that the employee was exposed to a fall which could have resulted in death or serious injury. Automatic Sprinkler does not dispute this finding. Moreover, the record shows a fall of 12 ½ to 14 ½ feet in this instance presented a substantial probability of death of serious physical harm since the walkways were concrete. See California Stevedore & Ballast Co., 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1973–74 CCH OSHD ¶ 16,520 (No. 14, 1973), aff’d, 517 F.2d 986 (9th Cir. 1975); cf. R.L. Sanders Roofing Co., 79 OSAHRC ___, 7 BNA OSHC 1566, 1979 CCH OSHD ¶ 23, 756 ___ (No. 76–2690, 1979) (dissenting opinion). As my Colleagues note, the record also establishes that Automatic Sprinkler could have known of the violative condition with the exercise of reasonable diligence. Accordingly, the violation was serious as alleged. In light of the gravity of the violation, and Automatic Sprinkler’s good faith, prior history, and size, I agree that a penalty of $750 should be assessed.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-5271
AUTOMATIC SPRINKLER CORPORATION OF AMERICA,
Respondent.

May 25, 1977

Appearances:

Francis V. LaRuffa, Regional Solicitor

United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant, by Jack Fisher, Esq.

Calfee, Halter & Griswold, Esqs.

1800 Central National Bank Building

Cleveland, Ohio 44114

Attorney for respondent by Jack R. Albanese, Esq.

DECISION AND ORDER

Fier, Judge.

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), wherein respondent contests the citation and penalties for one second repeat serious violation. The citation dated December 1, 1976, was based on an inspection conducted on November 29, 1976. The citation and proposed penalty was issued pursuant to sections 9(a) and 10(a) of the Act.

In accordance with section 10(c) of the Act, 29 U.S.C. 659(c) respondent, through a letter dated December 8, 1976 noted its timely contest of the citation and proposed penalty. The citation for the alleged serious second repeat violation sets forth the following:

Citation No. 1

Item No.

Standard

Date by which Alleged violation must be corrected

Description of Alleged Violation

29 CFR 1926.451(e)(10)

Immediately

Standard guardrails and toeboards were not installed at all open sides and ends on manually propelled mobile scaffold(s) more than 10 feet above the ground or floor:

(a) Auditorium—Grade level by Column B13 Employee observed working at the scaffold platform edge where a drop of between 12 and 14 feet above the concrete floor and no protection afforded the employee.

A penalty of $3,600.00 was proposed.

Standard as promulgated provides:

29 CFR 1926.451(e)(10)

ISSUES

1. Whether the respondent violated the Occupational Safety and Health Act as alleged.

2. Whether the respondent failed to comply with section 29 CFR 1926.451(e)(10); if so, did it violate section 29 U.S.C. 654(a)(2) of the Act.

3. If the respondent did violate section 29 U.S.C. 654(a)(2) of the Act is it a second repeat violation and what penalty, if any, shall be assessed.

SUMMARY OF THE EVIDENCE

The respondent is a corporation organized under the laws of the State of Ohio. In 1976 it did a gross sales business of $80,000,000 (Tr. 5).[‡‡] The respondent, at the time of inspection, was engaged in work in Harrison, New York. The Respondent in its answer, admits that portion of the complaint concerning jurisdiction. On November 29, 1976, John Tomich a compliance officer with the United States Department of Labor (hereafter referred to as C.O.), testified that he visited the respondent’s worksite in Harrison, New York, as part of a followup inspection wherein an alleged violation was issued two months previous (Tr. 6, 7, 8). The C.O. met with the general contractor of Tishman Realty Corp. by assistant superintendent, Ron Hosmer (Tr. 8). While proceeding to the respondent’s work area, the C.O. observed an employee working on a scaffold, ‘next to a drop of an elevation to a lower level of approximately six through eight feet above the level in which he had been working on the scaffold’ (Tr. 8). The dimensions of the scaffold were eight feet long by five feet wide. The height was six foot six inches to the platform where the respondent’s employee was observed working (Tr. 9). The employee was identified by the respondent’s foreman, Joseph Hajkowski, as Carlo Masci (Tr. 10 14). The employees were stated to be working in that particular area for the past on and one half weeks (Tr. 10). The drop was six foot six inches to the floor from the top of the scaffold and an additional six feet on one side of the scaffold and an additional eight feet on another side. Thus presenting a combined drop of 12 feet 6 inches on one side and 14 feet six inches on another side (Tr. 15). There were no guardrails (Tr. 15, 19, 27). The scaffold was located within two feet of one edge and four inches of the other edge (Tr. 15). The measurements were taken by the C.O. (Tr. 15). The scaffold was identified as belonging to the respondent. From the position observed, if the employee fell he would fall not just the six foot six inch distance but rather the greater total distance of 12 feet six inches or 14 feet six inches (Tr. 21). Therefore the fall distance would include the distance from the top of the scaffold to the farthest floor below, or the base. The C.O. testified that the phrase ‘maximum fall’ is used to interpret the standard (Tr. 22). The C.O. also testified that he observed the employee on the scaffold for approximately two to three minutes. This is corroborated by the respondent employees’ testimony (Tr. 29).

The respondent contends that the primary issue is one of interpretation of the standard. It is the allegation of the respondent that regardless of the fall distance the standard specifically states that the scaffold must be at least ten feet before the standard is applicable. Accordingly, it is the allegation of the respondent that the cited standard is not applicable and as such the Secretary has failed to make out a prima facie case. The proposed penalty of $3,600.00 is based on the fact that the respondent was previously cited and did not contest the first violation of the same standard. The proposed penalty of $140.00 was paid (Tr. 11, Exh. C 1). The repeat violation referred to by the respondent has reference to the case that was tried in companion with the present case bearing DOcket No. 76 5089. This was based on an inspection of September 27, 1976 for which no final determination has been made prior to the trial of this case. On the basis of the foregoing, the Secretary seeks to impose a penalty of $3,600.00 as a second repeat violation (Tr. 11).

OPINION

The issue of jurisdiction is disposed of by way of the pleadings and the evidence of record as to the volume of the respondent’s business and its admission that it engages in commerce across State lines. The respondent also testified that the gross annual dollar volume for the year 1976 was $80,000,000. This would appear to support a conclusion that the respondent’s business does affect commerce within the meaning of the Act and that it is thereby subject to the jurisdiction of the Occupational Safety and Health Act.

The facts of this case are essentially not in dispute. The respondent and the Secretary agree that the primary issue rests upon an interpretation of the work ‘ground or floor’ as it is used in defining the standard 29 CFR 1926.451(d)(10). The specific portion of the standard in issue is concerned with the words ‘shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor.’ In resolving the issue of this case it is necessary to once again refer to the particular facts of this matter. The respondent’s employee was observed on a scaffold that is six feet in height. However, the scaffold was adjacent to a drop of an additional six to eight feet on the exposed two sides. The question therefore is where and in what manner is the fall distance to the measured in determining the applicability of the standard. If one is to consider that the six foot scaffold is not required to have guardrailings regardless of what the fall distance from the platform is, then the citation should properly be dismissed. On the other hand, if the intent of the standard is concerned with the exposure of an employee to a hazard then one must look into the meaning of the standard in determining what is meant by the 10 foot distance from the ground or floor. The respondent refers to the decision of Secretary v. Western Waterproofing Company, Inc., Docket No. 14237 (March 22, 1976) CCH ¶ 20,646, ——. The Judge, in this case, properly dismissed the citation because the employees were exposed to a fall from a scaffold adjacent to a chimney, of no greater than five feet to the roof below. In so doing the rational indicates that the height of the scaffold in not the primary measure for determining whether the standard is complied with but rather the exposure to danger of a fall by an employee. Therefore, if an employee is exposed to a fall on a six foot platform to a distance of 12 feet six inches, this would appear to require compliance of the standard and of the Act that the primary purpose is to protect the employee from serious injury or death. It must also be noted that while the scaffold was only six feet from the floor or ground on two sides, on the remaining two sides, the scaffold was located within two feet of one edge on one side, and four inches at the other edge on the other side (Tr. 15).

The theory of the respondent rests on the fact that the scaffold itself was only six feet in height. However, it must be assumed and rationalized that if the height is increased because the scaffold is resting on a surface adjacent to an edge with a total fall distance from the platform to the lowest level adjacent to the platform in excess of ten feet, then the fall distance will determine the applicability of the standard. The increased height of the scaffold requires that compliance must be expected, since an employee will be exposed to a danger that may result in serious injury or death.

The Review Commission in a recent decision stated in part:

‘The Secretary’s interpretation of the standard is adopted. Occupational safety and health standards should be interpreted in light of the conduct to which they are addressed. Brennan v. O.S.H.R.C. and Santa Fe Trail Transportation Co., 505 F.2d 869, 872 [2 OSHC 1274] (10th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 [2 OSHC 1075] (5th Cir. 1974).

The obvious purpose of the standard is to provide for employees exposed to the hazard of falling a distance of more than ten feet from a horse scaffold. Interpreting the term ‘ground or floor’ to mean the distance of the scaffold from its base, rather than any greater distance to the ground, is inconsistent with the regulatory purpose, as well as with a literal reading of the term ‘ground.’

It is also significant that in other parts of § 1926.451 the Secretary uses the measurement ‘10 feet above the ground or floor’ when referring to hanging scaffolds, which have no base. There, the ten-foot distance can only refer to the distance that an employee may fall. See e.g. 29 CFR § 1926. 451(g)(5); 29 CFR § 1926.451(h)(15).’Secretary v. Julius Nasso Concrete Corporation, OSAHRC Docket No. 7542 (April 11, 1977) BNA 50 SHC 1235, CCH ¶19892.

On the basis of the foregoing, it is necessary to conclude that the respondent did violate the standard by failing to provide guardrails as required by 29 CFR 1926.451(e)(10).

There remains the issue of an alleged second repeat violation. The history and facts of this case clearly demonstrate that the instant case must be considered together with the decision of the undersigned issued May 12, 1977 bearing Docket No. 76 5089.

The parties to both actions and the standard involved are the same. In that decision it was determined that the prior violation was construed as a repeat violation and as such the penalty was affixed on the basis of the evidence. Reference is therefor made to the Desarrollos Metropolitanos, Inc., v. OSAHRC No. 76 1171 (1 C.A. March 23, 1976); Docket No. 11084, BNA 4 OSHC 1033, CCH ¶ 20,103. There as here, it has been determined that a violation of the same standard, previously affirmed although at a different geographically work site, constitutes a repeat violation. The decision in Docket No. 76-5089, with the same parties as in this case, was not a final Order as of the date of trial of this case. Accordingly, it would hardly follow that a second repeat violation can be sustained on the basis of the facts concerning the issuance of the citation. Therefore, it is necessary to conclude that the instant violation can only be sustained as a repeat violation based on Exhibit-1.

In considering the assessment of a penalty, the criteria of section 17 of the Act concerning the respondent’s size, good faith, and the gravity of the violation, have been duly considered. In addition, the specific circumstances of this case have been carefully weighed together with counsel’s honest belief that the standard was not violated. It is apparent that the arguments put forth by counsel that consideration must be given for the fact that the scaffold was only partially exposed on two sides and that the period of time was of short duration, merits reflection. After consideration of all of the above it is determined that a penalty of $1,000.00 would not be inappropriate under the circumstances.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following facts:

1. Respondent, Automatic Sprinkler Corporation of America is engaged in the business of installing sprinkler systems. The respondent’s business crosses State lines. Its gross volume of business indicates that it affects commerce.

2. Respondent’s employee was working on a scaffold that did not have guardrails and to which two sides of the scaffold were more than 10 feet from the ground or floor.

3. Respondent’s employee was exposed to a fall from the scaffold which could have resulted in death or serious injury.

4. Respondent was previously found to be in violation of the identical standard.

5. The evidence shows that the scaffold used by the respondent’s employee was not equipped with guardrails, midrails, toeboards or screens as required on those sides which were exposed to a height or fall distance of more than 10 feet from the ground or floor below, in this case on two sides of the scaffold.

CONCLUSIONS OF LAW

1. The respondent is and was at all times herein engaged in a business affecting commerce within the meaning of section 3 (5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent violated 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR 1926.451(e)(10) as a repeat violation.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby

ORDERED that:

Citation no. 1 is affirmed. Total penalty of $1,000.00 is assessed.

SEYMOUR FIER

JUDGE, OSHRC

Dated: May 25, 1977

New York, New York

[1] The standard, 29 C.F.R. § 1926.451(e)(10), is quoted in the text infra.

[3] Automatic had been cited twice previously for violation of § 1926.451(e)(10), and one of those citations had become a final order. The only evidence introduced concerning the final order was the citation itself, which showed that a construction site in Yonkers, New York, had been inspected on October 28, 1975, and described the violation there as follows:

Manually propelled mobile scaffold 11 feet 6 inches high was in use without standard rails. Guardrails, midrails and toeboards shall be installed on open end and sides of scaffolds more than 10 feet in height.

[4] Automatic Sprinkler also asserts that the standard would be vague if applied to the situation here because it would not give notice of how close to an edge a scaffold would have to be for the 10 foot height to include the drop off the edge. While there may be causes where a close question exists as to whether an employee falling from a scaffold would fall off an adjacent edge, there is no question that such a fall would occur here, where the scaffold sides are no further than two feet from the nearest edge. Thus, any uncertainty that might arise in other cases provides no reason for failing to apply the standard in this case. See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).

[5] Although Masci testified that his foreman had previously told him that a scaffold higher than ten feet required guardrails, it is clear Automatic Sprinkler did not intend this instruction to apply to the facts here, for it interpreted the ten foot requirement to mean the height of the scaffold. Thus, this instruction cannot be taken as a step designed to prevent the violation. See The Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977–78 CCH OSHD ¶21,696 (No. 11015, 1977).

[6] The citation stated,