AUTOMATIC SPRINKLER CORPORATION OF AMERICA

OSHRC Docket No. 76-5089

Occupational Safety and Health Review Commission

May 9, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Jack B. Albanese, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A May 12, 1977 decision of Administrative Law Judge Seymour Fier is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970 ("the Act"). n2 Judge Fier affirmed a repeat-serious citation alleging that Respondent, Automatic Sprinkler Corporation of America ("Automatic Sprinkler" or "the company"), violated section 5(a)(2) n3 of the Act by failing to install guardrails and toeboards on a manually propelled mobile scaffold as required by the construction safety standard at 29 C.F.R. §   1926.451(e)(10).   At issue is whether the judge erred in (1) concluding that Automatic Sprinkler failed to comply with the standard; (2) characterizing the violation as repeated; (3) finding that the violation was serious; and (4) assessing a penalty of $900.   For the reasons that follow, we affirm the judge's decision.

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n1 29 U.S.C. §   661(i).

n2 29 U.S.C. § §   651-678.

n3 29 U.S.C. §   654(a)(2).

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I

Automatic Sprinkler was a subcontractor installing a sprinkler system in a building under construction in Harrison, New York, when a compliance officer for the United States Department of Labor inspected the multiple-employer worksite on September 24, 27, and 29, 1976.   While the compliance officer was in the grade level core area of the building on September 27th, he observed one of Automatic Sprinkler's employees standing on a manually propelled mobile scaffold. The platform of the scaffold was approximately eleven to twelve feet above the floor and lacked guardrails and toeboards as required by the construction safety standard at 29 C.F.R. §   1926.451(e)(10). n4 Moreover, the employee was not using personal protective equipment.   Because the employee was exposed to the hazard of falling, Automatic Sprinkler was cited for noncompliance with section 1926.451(e)(10).   The violation was characterized by the Secretary as serious n5 because the floor below the platform was concrete; piping debris and other materials were on the floor in the vicinity of the platform; and the scaffold was two to six feet [*3]   away from an unguarded edge of the floor, six feet below which there was a concrete walkway.   The violation was additionally characterized as repeated on the basis of a November 19, 1975 citation issued for noncompliance with section 1926.451(e)(10), which involved a manually propelled mobile scaffold approximately eleven feet high at a worksite in Yonkers, New York.   Automatic Sprinkler had not contested this earlier citation.   Accordingly it became a final order of the Commission pursuant to section 10(a) of the Act. n6

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n4 29 C.F.R. §   1926.451(e)(10) provides the following:

§   1926.451 Scaffolding.

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(e) Manually propelled mobile scaffolds.

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(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.

n5 A serious violation is defined in §   17(k) of the Act, 29 U.S.C. §   666(j), which states the following:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of emloyment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

n6 29 U.S.C. §   659(a).

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The employee seen on the scaffold in this case was assigned the task of "setting hangers," that is, fastening to the ceiling certain pipes to be used to support the sprinkler system.   Automatic Sprinkler had supplied a ladder which the employee had consistently been using before he was seen upon the scaffold. The scaffold belonged to the plumbing contractor, another subcontractor on the worksite. According to the employee, he had been pushing the scaffold ahead of him as he progressed through the area with the ladder, but finally the scaffold "ran into the plumber's piping and [he] had to stop there." Since he could not use the ladder with the scaffold in the way, and "[he] couldn't get his scaffolding any further out of the way," the employee decided to use the scaffold.

Automatic Sprinkler's employees on this worksite had been given a general instruction -- at least by the foreman in charge of the employee installing hangers -- not to use any equipment, including scaffolds, belonging to other employers. n7 To the best knowledge of the company's foreman, this instruction was obeyed.   Moreover, the [*5]   employee installing hangers was a journeyman and had received sone safety training from his union.   However, the record does not indicate that a company supervisor inspected the area before work commenced in order to ascertain what hazards already existed or might arise during work.   Moreover, there is no indication that Automatic Sprinkler asked the plumbing contractor who owned the scaffold either to install guardrails on it or remove it from the area in order to prevent its interference with Automatic Sprinkler's work activities.

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n7 Whether this particular employee actually received the instruction regarding the use of other employers' equipment is not clear.   The foreman believed, according to his testimony, that on this worksite he had given his usual instruction to the employees to use only Automatic Sprinkler's scaffolds. According to the testimony of the employee, however, the foreman's instructions were general, that is, essentially to use his own judgment to do his job safely and efficiently.   He also stated that "only under very unusual circumstances" would he use equipment belonging to another employer, a statement suggesting that he may not have known that the use of such equipment was entirely prohibited.   At the time this employee was upon the scaffold, moreover, another of Automatic Sprinkler's employees was steadying the scaffold.

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The ceiling in the area of the scaffold was about sixteen feet high, but a series of one-foot drops in the ceiling, giving it a "honeycomb shape," reduced the ceiling height at the drops to fifteen feet. Since the scaffold was eleven to twelve feet high, only three to four feet would have remained between the ceiling drops and the platform. The guardrails required by section 1926.451(e)(10) must be "approximately 42 inches," or 3-1/2 feet, high.   Whether the edges of the platform were directly below ceiling drops was not precisely shown, but according to the employee who was upon the scaffold, he "was confined" on the platform between the ceiling drops. In addition to the ceiling drops, the pipes installed in the area around the scaffold by the plumbing contractor were parallel to the scaffold and, according to the employee, they prevented him from moving the scaffold. However, the precise size, location, and configuration of the pipes were not shown.   Additionally, the length of the hangers which the employee was fastening to the ceiling drops was not shown.

II

Automatic Sprinkler does not dispute [*7]   that its employee worked on a manually propelled mobile scaffold that did not comply with section 1926.451(e)(10).   The company argued before the judge, however, that it should not be found responsible for the violation for several reasons.   The company asserted that it took the only available precautions to prevent the employee's exposure to unguarded scaffolds by instructing employees not to use other employers' equipment and supplying a ladder for the job of setting hangers. Since, to the best knowledge of the foreman of the employee, the instruction was obeyed, and the employee supplied with the ladder was both trained in safety and experienced, Automatic Sprinkler could not have known that its employee would use the unguarded scaffold. Essentially, Automatic Sprinkler argued that it did not know and could not, with the exercise of reasonable diligence, have known of the particular instance of violation because the company took adequate precautions to prevent such a violation.

The company additionally contended that it established the multi-employer worksite affirmative defense available to construction subcontractors that the Commission set forth in Grossman Steel & Aluminum   [*8]    Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (No. 4409, 1976).   Automatic Sprinkler argued that it did not create or control the violative condition such that it could have abated the hazard in the manner required by the cited standard, and that it took all realistically available alternative measures to literal compliance to protect its employees.   Finally, Automatic Sprinkler argued that, in view of the ceiling drops and the pipes, guardrails could not have been installed and that if they were, the work of installing the sprinkler system could not have been performed.

The judge affirmed the repeat-serious citation and assessed a penalty of $900.   He rejected Automatic Sprinkler's contentions that it neither knew nor could have known of the violation, that the violation resulted from the employee's failure to follow the company's safety rule, and that the company had established the multi-employer worksite defense on basically one ground.   He noted that Automatic Sprinkler claimed to have taken all necessary steps to prevent its employees from being exposed [*9]   to the hazard presented by this scaffold by instructing them to use only equipment belonging to Automatic Sprinkler.   He concluded, however, that the instruction was not adequately communicated to the employees because they did not know of the prohibition against using the unguarded scaffold. n8 He also concluded that the employee upon the scaffold at the time of the inspection was inadequately supervised considering that, as a "journeyman," he was relatively inexperienced and untrained.

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n8 See note 7 supra.

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The judge also rejected Automatic Sprinkler's defense that it was impossible to install guardrails on the scaffold as required by section 1926.451(e)(10).   He found that "the four foot differential" between the ceiling and the platform of the scaffold "was still sufficient to accommodate at least a toeboard and midrail if not a toprail."

III

On review, Automatic Sprinkler contends that the judge erred in finding that the company violated the standard, renewing the arguments it made to the judge.   The [*10]   company also contends that the judge erred in characterizing the violation as repeated and as serious, and in assessing a $900 penalty.   The Secretary did not file a brief on review.

A

We reject Automatic Sprinkler's contention that it could not have known that its employee would use the unguarded scaffold because the company's precautions against the occurrence of this type of violation were adequate.   The company's precautions do not constitute a sufficient level of continuing diligence under the circumstances of this case.

The Commission has held that an employer must make a reasonable effort to anticipate the particular hazards to which its employees may be exposed in the course of their scheduled work.   Specifically, an employer must inspect the area to determine what hazards exist or may arise during the work before permitting employees to work in an area, and the employer must then give specific and appropriate instructions to prevent exposure to unsafe conditions.   Butler Lime & Cement Co., 79 OSAHRC    , 7 BNA OSHC 1973, 1979 CCH OSHD P24,091 (No. 855, 1979); Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979);   [*11]   J.H. MacKay Electric Co., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH OSHD P23,026 (No. 16110, 1978).   A preliminary inspection must be made even where the employees are experienced. n9 J.H. MacKay Electric Co., supra. Here, Automatic Sprinkler knew where its employee would have to fasten hangers. If the company had inspected the area, it could have observed that the plumbing pipes could immobilize the scaffold where hangers were required to be fastened.   Since Automatic Sprinkler could have anticipated that the employee might resort to using the scaffold, the company should have taken specific measures against occurrence of the violation.   See Automatic Sprinkler Corp. of America, 79 OSAHRC 102/B2, 7 BNA OSHC 1957, 1979 CCH OSHD P24,077 (No. 76-5271, 1979).

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n9 As has been stated, the judge held that because the employee upon the scaffold was a "journeyman" in his trade, he was inexperienced and untrained.   However, the term "journeyman" denotes an employee ". . . who has completed a specified training program as an apprentice in learning a trade or craft, and who can give written proof of a specified number of years of qualifying experience for such trade or craft." DICTIONARY OF OCCUPATIONAL TITLES 396 (3rd ed. 1965).   Accordingly we reject the judge's characterization of the employee as inexperienced and consider him experienced.

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Furthermore, since Automatic Sprinkler's precautions against use of the scaffold by the employee were inadequate, the company has failed to prove that the violation was unpreventable.   The company maintains that providing a ladder for the task of setting hangers and generally instructing employees against use of other employers' equipment obviated the need for any further precautions, and therefore that the violation resulted from unpreventable employee misconduct in violating the instruction.   While we have held that employers are not responsible for unpreventable instances of employee misconduct, the formulation and communication of a general work rule is not enough.   The employer is required to exercise reasonable diligence in anticipating the hazards to which his employees will be exposed, Southwestern Bell Telephone Co., supra, and to communicate specific instructions designed to prevent the violation.   See The Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD P21,696 (No. 11015, 1977).

B

We turn now to Automatic Sprinkler's argument that it established [*13]   the multi-employer worksite affirmative defense set forth by the Commission in Grossman Steel & Aluminum Corp., supra, and Anning-Johnson Co., supra. In those cases, the Commission reaffirmed the rule that each employer on a multi-employer worksite is responsible for the safety of its own employees.   The Commission also held, however, that a subcontractor who neither created nor controlled a violative condition, and therefore was unable to abate a hazard according to the literal terms of a standard, could defend by showing that it protected its employees by taking the realistic alternative measures that were available in the circumstances.   Data Electric Co., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH OSHD P21,593 (No. 13122, 1977).   Here it is established that Automatic Sprinkler did not create or control the violative condition arising from the lack of guardrails on the open ends and sides of the scaffold. The company argues that it took all available realistic alternative measures by supplying a ladder and instructing against use of other employers' equipment.   However, as discussed above, the company could have known that some of the employee's work could [*14]   not be done from the ladder and that the employee could not obey the general instruction not to use other employers' equipment unless he left the job incomplete.   We have held that where no means are available by which an employer can physically protect its employees against a hazard, the employer must nevertheless take the step of requesting the responsible contractor to abate the hazard. McLean-Behm Steel Erectors, Inc., 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1978 CCH OSHD P22,812 (No. 76-2390, 1978).   Here there is no evidence that Automatic Sprinkler made such a request.   Accordingly, Automatic Sprinkler has failed to establish the multi-employer worksite defense.

C

To establish the defense of impossibility, whether of compliance or performance, the employer must show that compliance with the cited standard was functionally impossible or would preclude performance of the required work.   M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979). n10 Since an employer is required to comply with the standards to the extent possible, more must be shown than that compliance with one specification out of several in the standard was functionally [*15]   impossible.   Cf. Hurlock Roofing Co., 79 OSAHRC    , 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979); Ray Boyd Plaster & Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD P22,794 (No. 76-814, 1978), appeal dismissed, No. 78-2666 (5th Cir. Sept. 29, 1978).   Taken in the light most favorable to Automatic Sprinkler, the evidence about the one-foot drops in the ceiling shows that 42-inch-high toprails could not have been used.   However, the space between the ceiling drops and the platform was three to four feet. Midrails and toeboards therefore could have been installed as required by section 1926.451(e)(10).   Moreover, since Automatic Sprinkler's evidence does not conclusively establish that the edges of the platform were directly below the ceiling drops, the company has not actually ruled out the possibility that toprails could have been installed as required by the standard.

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n10 In addition, we have held that the employer must show that alternative means of protection were in use or were unavailable.   See Bill C. Carroll Co., 79 OSAHRC 87/C13, 7 BNA OSHC 1806, 1979 CCH OSHD P23,940 (No. 76-2748, 1979); M.J. Lee Construction Co., supra. However, we need not consider this aspect of the defense since, as set forth in the text, we find that Automatic Sprinkler failed to show either that literal compliance was impossible or, as discussed later, that compliance would have precluded performance of the required work.

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The company's evidence about the pipes installed in the area does not demonstrate that they in any way would obstruct guardrails. Since Automatic Sprinkler did not show the size, placement, or overall configuration of the pipes, the record shows at best only that they were parallel to the scaffold and low enough to hinder movement of it.   However, this does not prove that the pipes were in the space between the platform and the ceiling. Accordingly Automatic Sprinkler failed to establish a defense based on the functional impossibility of compliance.

Automatic Sprinkler also failed to establish that compliance with the standard would preclude performance of the required work.   The record reveals only that the employee was fastening hangers to the ceiling drops. However, as we have said, Automatic Sprinkler failed to establish the position of the platform with respect to the ceiling drops. The record does not reveal that the guardrails, if they had been installed, would have been directly below the hangers fastened to the ceiling drops. We therefore cannot find that the guardrails would necessarily [*17]   interfere with the hangers. Moreover, since Automatic Sprinkler did not establish the length of the hangers on the record, we cannot find that a midrail and toeboard could not have been used in any event.   We accordingly conclude that the company failed to establish an impossibility defense on any basis.

IV

Since we have rejected each of Automatic Sprinkler's defenses, we turn to whether the judge correctly characterized the violation as repeated. Automatic Sprinkler argues, referring to the test adopted by the United States Court of Appeals for the Third Circuit in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3rd Cir. 1976), that the Secretary was required to show Automatic Sprinkler violated section 1926.451(e)(10) more than twice and "flaunted" the requirements of the Act.   However, subsequent to the filing of Automatic Sprinkler's review brief here, the Commission specifically declined to apply this test.   In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD P23,294 at 28,171 (No. 16183, 1979), the Commission held that "[a] violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission [*18]   final order against the same employer for a substantially similar violation."

Here, the past and present section 1926.451(e)(10) violations both involve manually propelled mobile scaffolds more than ten feet above the floor or ground and lacking the required guardrails. Automatic Sprinkler argues that the past and present violations of section 1926.451(e)(10) are not substantially similar in view of differences in time, place, supervision, and circumstances.   The circumstances on which Automatic Sprinkler relies are that the company did not own the scaffold involved in the present violation and a company employee was steadying the scaffold while the other employee was upon it.   However, these are not material dissimilarities, for reasons we have set forth in Potlatch and succeeding cases.   See Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979); Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979).   The Commission stated in Potlatch that the Secretary establishes a prima facie case of similarity by showing past and present violations of the same standard, and the employer [*19]   may then rebut by showing significant differences in the conditions and hazards of the violations.   The Commission stated specifically in Potlatch that differences in time, place, and supervision are not relevant to the issue of whether a violation is repeated. These factors are relevant, however, to the assessment of a penalty.   Indeed, here no relevant differences in circumstances could have been shown by Automatic Sprinkler.   Section 1926.451(e)(10) requires guardrails on manually propelled mobile scaffolds higher than ten feet above the ground or floor regardless of any other conditions, such as the steadiness of the scaffold, and the hazard associated with a lack of guardrails -- a fall hazard -- is the same in all cases. n11 Accordingly we affirm the judge's holding that the violation was repeated. n12

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n11 This case was tried and decided prior to our decision in Potlatch. Usually when there has been an intervening change in law between the hearing and our decision on review in a case, we will offer the affected party an opportunity to present additional evidence relevant to the newly established legal test or defense.   See, e.g., Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).   However, in view of the facts as discussed above and Automatic Sprinkler's defense to the repeated violation, we conclude that the defense here would not have been tried any differently had Potlatch been issued before the hearing.   Therefore we need not offer Automatic Sprinkler an opportunity for a remand.   Cf. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979).

n12 Commissioner Barnako would not presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise.   Potlatch Corp., supra (concurring and dissenting opinion).   Instead, he would look to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its workplace the condition alleged to constitute the repeated violation.   Where such notice is not apparent from the face of the citation, he would require the Secretary to prove substantial similarity. Where such a showing has been made, he would permit an employer, by way of defense, to show that it took good faith steps after the entry of a final order to prevent the recurrence of a substantially similar violation.

The previous citation and the citation at issue here are similar in that both allege failure to guard the open sides and ends of manually propelled mobile scaffolds where the distance from the base of the scaffold to the working platform exceeded ten feet. Thus, both citations address a single, discrete hazard that exists in all situations where the open sides and ends of a manually propelled mobile scaffold exceeding ten feet in height lack guardrails, and both require an identical means of abatement.   Thus, Commissioner Barnako would conclude that the instant violation of this standard is substantially similar to the prior violation and that the company was therefore on notice from the prior citation that its safety precautions with respect to manually propelled mobile scaffolds exceeding ten feet in height were inadequate.   Cf. Automatic Sprinkler Corp. of America, supra (substantial similarity not found when prior citation involved scaffold exceeding ten feet in height, and present citation concerned scaffold less than ten feet in height but for which fall distance exceeded ten feet).

Moreover, Automatic Sprinkler offered no evidence that, after the entry of the prior final order, it had taken affirmative steps to ensure that a similar violation did not occur in the future.   However, since this case was tried prior to the issuance of Potlatch, supra, Commissioner Barnako would afford Automatic Sprinkler an opportunity to present evidence as to this defense.   Therefore, he would enter a conditional order, affirming the judge's holding that the violation was repeated, but would afford Automatic Sprinkler 10 days from the issuance of the decision to request that the case be reopened for additional evidence on the repeated issue.   See Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979) (concurring and dissenting opinion).   Stearns-Roger, Inc., 79 OSAHRC    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979) (concurring opinion).

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We also conclude that the judge correctly held the violation was serious.   Automatic Sprinkler argues to the contrary on the basis of evidence concerning the slight probability of an accident occurring and the difficulty of installing guardrails. However, these considerations are beyond the rule of California Stevedore & Ballast Co., 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1973-74 CCH OSHD P16,520 (No. 14, 1973), aff'd, 517 F.2d 986 (9th Cir. 1975). The proper inquiry is the probability that the resulting harm will be death or serious physical harm.   Automatic Sprinkler also argues that the Secretary's proof on serious harm was deficient because the compliance officer's testimony about serious injury from a fall more than ten feet was "mere conjecture and speculation." However, this argument fails because, in other testimony by the compliance officer, the Secretary provided sufficient facts from which to conclude that there was a substantial probability of serious physical harm.   The testimony reveals that the employee could fall eleven to twelve feet onto a concrete floor in the vicinity of "piping [*21]   debris" and other materials.   Therefore we reject Automatic Sprinkler's argument and conclude that the violation was serious. n13

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n13 In addition to the arguments set forth in the text of this decision, Automatic Sprinkler argues that the violation was only nonserious since the company did not know and could not have known of the violation.   See 29 U.S.C. §   666(j), set forth in note 5 supra. Since, as set out in this decision, the company could have known of the violation with the exercise of reasonable diligence, we reject this argument.   See, e.g., Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979).

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We turn now to the assessment of an appropriate penalty.   In lieu of the proposed penalty of $1800, the judge assessed $900, taking into consideration the brevity of the exposure of the one employee to the serious fall hazard and the fact that Automatic Sprinkler did not own the scaffold. However, he faulted Automatic Sprinkler for inadequate instruction [*22]   and supervision of a journeyman who he considered was an inexperienced employee.   Arguing on review that this determination was incorrect, Automatic Sprinkler essentially argues that the Commission should further reduce the penalty giving greater credit for good faith.   Although we agree with Automatic Sprinkler that the judge misconstrued a journeyman's level of experience and training, n14 we nevertheless assess $900 as did the judge.   The record shows that the company failed to assure that adequate measures were taken to supervise its employees and to detect hazards to which they would be exposed in their work.   In view of this, the judge's evaluation of Automatic Sprinkler's good faith is correct, but for different reasons than were given by him.   In addition, the gravity of the violation was moderate, as the judge essentially determined, and the company has a prior history of violation of 29 C.F.R. §   1926.451(e)(10).   Accordingly, a penalty of $900 is appropriate. n15

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n14 See note 10 supra.

n15 Commissioner Cottine would reduce the assessed penalty from $900 to $500 based on the factual circumstances surrounding this repeated violation.   A $500 penalty is appropriate under 29 U.S.C. §   666(i).   The gravity of the repeated violation is low based on one employee's brief exposure to the hazard. Consideration must also be given to the Respondent's good faith attempt to assure employee use of the equipment it provided even though these efforts were insufficient to prevent the violation.   In addition, factors specifically relevant to assessing an appropriate penalty for a repeated violation warrant a penalty lower than that assessed by the judge.   The second violation occurred approximately one year after the first at a different worksite. Moreover, Respondent's assertion that different supervisors were in charge of the two worksites is unrebutted.   This repeated violation also differs from the first violation in that the Respondent did not own the scaffold in this case and one of its employees was at least steadying the scaffold during its use by another employee.   These factors along with the judge's misunderstanding of the employee's status as a journeyman warrant the assessment of a $500 rather than a $900 penalty.

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Accordingly, we affirm the repeat-serious citation and assess a penalty of $900.   SO ORDERED.