KEHM CONSTRUCTION COMPANY, INC.  

OSHRC Docket Nos. 1209; 1438 (consolidated)

Occupational Safety and Health Review Commission

November 2, 1973

 

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: On April 12, 1973, Review Commission Judge Vernon G. Riehl issued a decision in this case holding that the respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) because of three instances of failing to comply with occupational safety and health standards promulgated pursuant to section 6 of the Act.   He assessed a penalty of $365.00.   Thereafter, pursuant to section 12(j) of the Act, his decision was directed to be reviewed by the Commission.

The Commission has reviewed the briefs filed by the parties and has considered the entire record.   We affirm the Judge's finding of a violation based upon the two separate instances of noncompliance with the standard published at 29 C.F.R. 1926.451(a)(13).   The finding of a violation based on noncompliance with the standard at 29 C.F.R. 1926.450(a)(2) is reversed as hereinafter set forth.

This case was initiated by complainant, pursuant to section 9(a) of the Act, by the issuance of two separate citations which were subsequently consolidated for trial.

One citation described the alleged violation of the Act for failure to comply with the occupational safety and health standard published as 29 C.F.R. 1926.450(a)(2) as follows: "A 20" aluminum ladder   used to gain access to a scaffold had a damaged top rung and the side rails of the ladder were bent."

The standard provides as follows:

The use of ladders with broken or missing rungs or steps, broken or split siderails, or other faulty or defective construction is prohibited.   When ladders with such defects are discovered, they shall be immediately withdrawn from service.   Inspection of metal ladders shall include checking for corrosion of interiors of open end hollow rungs.

The Judge found as a fact that respondent was "using a 20 foot aluminum ladder, the side rails of which were bent, and the top rung of which was damaged."

The record reveals that the ladder in question had no broken or missing rungs or steps or any broken or split side rails, the conditions specifically prohibited by the cited standard.   This leaves the question as to whether the Judge's findings with respect to the condition of this ladder would be construed as "other faulty or defective construction."

The Judge addressed his findings to two separate areas of the ladder. The evidence shows that the top rung of the laddre was, in the words of complainant's witness who conducted the inspection leading to the issuance of this citation, "crimped." The only amplification of this description was:

What I mean by "crimped" is it was pressed in, it was reduced from its normal diameter.   These were either, I think round or triangular rungs, I don't remember for sure.   But I think they were round rungs. So once you crimp it, there again it's a point where it will bend very readily.

As to the finding that the side rails were bent, the same witness testified:

. . . the ladder which I took a photograph of is bent. And it is bent approximately at the eighth rung from the bottom.   Being an aluminum ladder, once it's crimped it loses its strength and it may be readily damaged through normal use.

If we were to interpret the general phrase "other   faulty or defective construction" in its broadest and unrestricted sense, we could hold that "crimps" and bends in ladders as well as chipped paint, nicks and splinters would be instances of noncompliance.   However, an interpretation of such breadth would virtually ban the use of ladders in work situations and would quite likely lead to a ruling inconsistent with the due process requirement that a regulation must give fair warning of precisely what conduct it prohibits.

The doctrine of ejusdem generis which has been an accepted rule of construction since Blackstone provides that when a requirement is so phrased that general words follow words of a particular or specific meaning, the general words are construed to embrace only things of the same general kind as those enumerated.   Consequently, we hold that "other faulty or defective construction" means conditions of the same general kind as "broken or missing rungs or steps" and "broken or split side rails."

A "crimp" in a rung which was described only as a reduction in the size of the rung from its normal diameter is not in this category, particularly in the absence of evidence of what constitutes the normal diameter.

The same holds true for a bent side rail in one particular place on the ladder. It just does not rank in the same classification as a side rail that is broken or split.

Accordingly, we find that the evidence fails to establish that respondent did not comply with the requirements of the occupational safety and health standard published at 29 C.F.R. 1926.450(a)(2) and we vacate the $100 penalty which the Judge assessed for this alleged infraction.  

CONCURBY: VAN NAMEE; CLEARY (In Part)

CONCUR:

  VAN NAMEE, COMMISSIONER concurring: I concur that Complainant has failed to carry his burden of proof as   regards the alleged violation of 29 C.F.R. 1926.450(a)(2).

In this case Complainant has taken language having application to wooden ladders and attempts to apply it to metal ladders, i.e., he would equate metal with wood.   The equation is difficult to make as is evidenced by the following testimony of the compliance officer on cross-examination:

Q.   Would you liken this to a wooden ladder?

A.   No.

Q.   What's the difference, Mr. Levalds?

A.   The very big difference is that in a wood ladder you're talking about fiber configuration, whereas in this you basically have an I-beam setup on the side rails. And once these are bent from a perfect line you lose the strength of it.

He allowed that metal ladders may not be perfect as manufactured, and he admitted that he had not measured the degree of bend.

I can conceive of cases where the degree of bend in a metal siderail would equate with a split wooden siderail. I can also conceive of cases where a crimped metal rung can equate to a broken wooden rung. The problem in this case is that Complainant's proofs are not sufficient to make the equation.   And, as my colleague correctly points out, the natural extension of Complainant's argument would be to ban ladders that have chipped paint, slight nicks, and the like.  

DISSENTBY: CLEARY (In Part)

DISSENT:

  CLEARY, COMMISSIONER, dissenting in part and concurring in part: I disagree with the majority in their conclusion that the evidence does not establish a failure to comply with 29 C.F.R. 1926.450(a)(2).   I would affirm the citation for failure to comply with this standard. n1

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n1 The majority vacates expressly the assessed penalty and vacates by inference, the citation.

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  The obvious purpose of section 1926.450(a)(2) is to prohibit the use of faulty or defective ladders. In my view, a metal ladder with a "crimp" in the top rung, as described by the complainant's witness and quoted in the majority opinion, and a bend in the siderail is "defective" or "faulty" within the meaning of the standard.

There is nothing inconsistent between this interpretation of the standard and the application by the majority of the ejusdem generis rule, or perhaps more accurately, the broader maxim noscitur a sociis. n2 A rung with a crimp and a siderail that is bent may even be considered "broken" under the standard.   The word "broken" has sufficient breadth to encompass the surface flaws involved.   The term is not restricted to fractures.   Webster's Third International Dictionary (Unabridged).

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n2 The meaning of a word is known from the accompanying words.

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This interpretation of the standard makes more sense in view of its obvious application to both wood and metal ladders.

Nor do I agree that to find that a metal ladder with bend and "crimped" areas fails to conform to the requirement of subsection 450(a)(2) would lead to finding "chipped paint, nicks and splinters . . . instances of non-compliance." This reduction to an absurdity would, as the majority correctly points out, require reading "other faulty or defective construction" in its broadest and unrestricted sense, and thus be inconsistent with the cannon of noscitur a sociis. There is nothing in the Act nor in the standard requiring such an extreme reading.

Further, the concurring opinion rests upon the failure of the complainant to establish an equation in section   1926.450(a)(2) between wooden and metal ladders. There is nothing in the standard requiring such a labored interpretation - it clearly encompasses both wood and metal ladders. Indeed, the last sentence of section 1926.450(a)(2), requiring an additional check of open end hollow rungs of metal ladders, supports this conclusion.

This is not to say that the degree of crimp or bend is without significance.   It has obvious relevance to the gravity of the violation and should be considered in the assessment of any penalty.

In view of the substantial effort made by respondent to comply with the Act and its relatively small size, I would concur with the assessment of no penalty, but I do not agree with the rationale of my fellow Commissioners that a bent metal ladder does not fall within the purview of section 1926.450(a)(2).

[The Judge's decision referred to herein follows].

RIEHL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ), hereinafter called the Act, contesting Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.   The Citation alleges that an inspection of a workplace under the ownership, operation, and control of the Respondent revealed the existence of workplace conditions that violate Section 5(a)(2) of the Act for the reason that these conditions fail to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

On July 19, 1972, an authorized representative of the Secretary of Labor conducted an inspection of Respondent   Kehm Construction Company's construction site at the Millard Junior High School, Millard, Nebraska.   As a result of this inspection, a Citation for one Other Than Serious Violation was issued, charged in violation of 29 CFR 1926.451(a)(13).   The alleged violation was as follows: (South and East wall of building.) Scaffolds consisted of a four foot, and a six and one-half foot section placed one on top of the other for a height of ten and one-half feet, were not equipped with access ladders, nor was an equivalent means of access available.   An immediate abatement date was given for this violation.   The alleged violation of this Citation was cited from the Federal Register, dated April 17, 1971, Volume 36, Number 75, Regulations for Construction.   A penalty of $70.00 was proposed for this violation.   (At the commencement of the hearing, the complaint was amended to reduce the penalty to $60.00 (T. 5).   On July 27, 1972, Respondent filed with the Representative of the Secretary a notification of intent to contest, which was duly transmitted to the Occupational Safety and Health Review Commission and docketed as OSHRC Docket #1209.

On August 29, 1972, an authorized Representative of the Secretary conducted an investigation of Respondent's construction site at 4041 North 72nd Street, Omaha, Nebraska.   As a result of this inspection, Respondent was issued a Citation on September 6, 1972, charging violations of 29 CFR 1926.450(a)(2)   and 29 CFR 1926.451(a)(13).   The penalties proposed for these violations were $150.00 and $215.00, respectively.   (Similarly the complaint was amended to reduce the proposed penalties to $145.00 and $205.00, respectively.)

On September 11, 1972, Respondent filed with a Representative of the Secretary of Labor a notification of intent to contest this Citation, which was duly   transmitted to the Occupational Safety and Health Review Commission and docketed as OSHRC Docket #1438.   On October 11, 1972, Respondent filed a motion to consolidate these two matters, along with a third action under the Act in which Kehm Construction Company, Inc., was the Respondent (OSHRC Docket #1333).   On October 11, 1972, Review Commission Judge Leon J. Moran granted Respondent's motion to dismiss Docket #1333.   The motion to consolidate was granted in regards to Dockets #1209 and #1438 on October 25, 1972.   A hearing on the two consolidated cases was held on January 17, 1973, in Omaha, Nebraska.

ISSUES

1.   Whether the Respondent violated 29 CFR 1926.451(a)(13) as charged in the Citation issued Respondent on July 21, 1972.

2.   Whether the Respondent violated 29 CFR 1926.451(a)(13) and 29 CFR 1926.450(a)(2) as charged in the Citation issued Respondent on September 5, 1972.

3.   Whether the proposed penalties which accompanied the Citations issued the Respondent on July 21, 1972 and September 5, 1972 should be affirmed.

DISCUSSION

At the beginning of the hearing the following testimony was adduced:

Mr. McCoy: In Docket No. 1438 --

Judge Riehl: Before you get to that docket number Mr. Monaghan, do you have any objection to that?

Mr. Monaghan: There's no objection to that.   They improperly computed the penalty as to their method of computing.

  Judge Riehl: So you have no objection to the motion?

Mr. Monaghan: No.

Judge Riehl: Motion will be sustained.

Mr. McCoy: With respect to Docket 1438 we would move to amend 4(1), the last sentence of that paragraph.   The penalty proposed for this violation was $150.00.   To read: 'The penalty proposed for this violation is $145.00.'

And the last sentence of the second subparagraph of Paragraph 4, change from: 'The penalty proposed for this violation was $215.00,' to read: 'The penalty proposed for this violation is $205.00.'

Judge Riehl: Mr. Monaghan, do you have any objection to this motion?

Mr. Monaghan: No.  

Judge Riehl: The motion is sustained.   It will be so noted.

Mr. McCoy: From the pleadings in this case, Your Honor, it's our intention to present evidence on the issue of the penalties only to show that the violations occurred, the hazards were presented by the violations.   But we will not present evidence as to the exact method of computation of our proposed penalties.

Judge Riehl: Let me ask you this, Mr. Monaghan.   You object, as I understand it, to the introduction of these worksheets because you can't cross-examine, is that correct?

Mr. Monaghan: That's correct.

Mr. McCoy: Those proposed exhibits will not be offered into evidence.

Judge Riehl: You're willing to let them be out of the evidence and let it be up to me to make a decision?

Mr. Monaghan: That's correct.   As long as they're just willing to introduce evidence as to the alleged violations of the standards and offer no evidence as to whether or not the penalties should be affirmed or not, I would have no objections.

Judge Riehl: We'll proceed under that with that understanding.

A careful consideration of the total evidence of record establishes that the Respondent violated 29 CFR 1926.451(a)(13) as charged   in the Citation issued Respondent on July 21, 1972.

The evidence of record establishes that when the Compliance Officer of the Occupational Safety and   Health Administration conducted his inspection of Respondent's work site at the Millard Junior High School on July 19, 1972, Respondent had provided no access ladder to a scaffold work platform which was six and one-half feet above the ground.   29 CFR 1926.451(a)(13) provides that: "An access ladder or equivalent safe access shall be provided." The testimony of the Compliance Officer, coupled with a photograph taken at the time of the inspection (Exhibit G-1) clearly indicates the absence of the proper access ladder or other equivalent means for safe access.   The Compliance Officer also conferred with Mr. Koeppe, an employer representative, who confirmed the absence of the ladder at the time of inspection (T. 41-47).

Respondent has also violated 29 CFR 1926.451(a)(13) and 29 CFR 1926.450(a)(2) as charged in the Citation issued to Respondent on September 5, 1972.

The total evidence of record establishes unquestionably that the access ladder, provided for a scaffold at Respondent's work site at 4041 N. 72nd Street, Omaha, Nebraska,   did not reach the work platform. An examination of photos taken at the scene during the Compliance Officer's inspection (Exhibits G-3, and 4) clearly establish and show the distance between the top of the ladder and the scaffold platform. Further examination of the exhibit establishes that the ladder extends some seven feet beyond its point of securement and bearing.   This portion of the ladder could not be used by an employee for access to the scaffold.

Another photo taken at the time of the inspection clearly indicates the violation of 29 CFR 1926.450(a)(2) by showing that the same ladder which did not reach the work platform was bent (T. 22, Exhibit G-2).   The total evidence of record establishes that this bending greatly reduced the structural strength of the ladder (T. 22, 24, 35).

  It was the Compliance Officer's testimony of record that it was appropriate to cite this same ladder as two violations (T. 26), considering that this ladder presents more than one condition which could, independent of its other effects, cause a fall.   The fact that these separate defects occur on the same ladder does not make their individual danger to employees any less (T. 26).

The   two-sided defects present varying degrees of risk which, coupled with the fact that no one standard completely covers either defect, makes a separate citing of these two defects the only thorough way to deal with this dangerous situation (T. 26).

The total evidence of record establishes the fact that the proposed penalties which accompanied the citation issued Respondent on July 21, 1972, and September 5, 1972, should be affirmed.

Section 17 of the Act provides that the gravity of the violation, the good faith of the employer, and the size and history of the employer should be considered in assessing penalties.   Any evaluation of an employer's good faith includes consideration of employer's knowledge of, and, attempts to comply with, the Act in his overall safety program ( Hodgson v. Vickers Mobile Division, Sperry Rand OSHRC Docket #187, #414, Hodgson v. Hennis Freight Lines, OSHRC Docket #498).

A consideration of "gravity" includes the considerations of the employee exposure to the hazard, the possibility of an accident from the hazard, and the severity of an injury which could result from the accident ( Secretary of Labor v. National Realty and Construction Co. OSHRC Docket #85).

In considering the gravity of violations in the instant case, an examination of Exhibits G-1, and the record (T. 10) reveals that the only reasonable inferences which may be drawn from the circumstances which   Mr. Levalds, Compliance Officer, observed on his inspection of the Millard Junior High School site are:

1.   That employees had worked from the work platform at the six and one-half foot level on the scaffold and

2.   That, when these employees were using the scaffold, no proper access ladder was provided for them.

The evidence of record establishes that the placement and arrangement of materials on the material platform of the scaffold (which were ten and one-half feet above the ground), indicate that these materials were placed there by hand (T. 11-12).   This is a judgment which Respondent's own witness and management representative, Mr. Koeppe, agreed to (T. 42).

There was a lower platform four feet from the ground, and, the location of this lower platform six and one-half feet directly beneath the material platform made the placing of the material by an employee standing on the lower work platform a highly remote possibility.   This is the testimony of the Compliance Officer (T. 13) and the Respondent's representative, Mr. Koeppe, agrees (T. 42-43).   There is also evidence of record that in the bricklaying trade, at least two employees would ordinarily use this kind of scaffold when bricks were being laid (T. 50).

The total testimony of record gives rise to a reasonable inference that there was no proper access ladder or equivalent means of safe access being used when the employees were on the scaffold placing the materials there.   The testimony is that Respondent's work site was a very small area and that had any such ladder been on the site, the Compliance Officer would have seen it (T. 9, 16).   Mr. Levalds saw no ladder in Respondent's work area which could have been used to provide access to the higher work platform (T. 16).   Mr. Koeppe, Respondent's employee, stated: "I immediately had   our truck go pick one up at our yard and bring one out" (T. 16, 43-44).   This could only mean that no such ladder was at the site. Also, Mr. Rudolf, Respondent's Job Superintendent, and the only employer representative present during the walk around stated to Mr. Levalds that no ladder was present (T. 12).

The Compliance Officer's testimony, coupled with an examination of photographs of the cited hazard establish that the absence of a safe access ladder or equivalent means of safe access could result in a fall producing a serious injury (T. 13-15).   In regard to the violations cited on September 5, 1972, employee exposure to the hazard is indicated in Exhibit G-4 which depicts an employee making a precarious descent on the face of the scaffold because of the absence of a proper access ladder (T. 23, 25).   An examination of the materials shown on the material platform (Exhibit G-3 and 4), plus the fact that the wall is unfinished indicates previous and future employee use of the scaffold, as well.

Regardless of what kind of work the Respondent's employee was performing, Exhibit G-4 shows unmistakably the employee's exposure to the violations for which Respondent was cited.   The speculations of Respondent's foreman (T. 50-51) to the effect that the employee in Exhibit G-4 was "jumping" or moving the scaffold to a higher work level rather than doing masonry work does not refute the fact that the employee was performing work under these hazardous conditions.

The evidence of record establishes that the scaffold was over 19 feet high; the point of bearing of the ladder is 13 feet above the ground (T. 26).   And, obviously a fall from such heights as these could result in serious injury and conceivably death (T. 25-26).

We feel that the Respondent used the ladder in   question in perfectly good faith and we note that they removed it from use immediately following the pointing out of its defect by the Compliance Officer.   We feel further in view of this, as well as considering the total evidence of record, that the penalty proposed by amended complaint in Docket #1438 should be $100.00 as this would be more in keeping with the purpose and intent of the Act.   The Respondent has shown good faith insofar as the use of the ladder is concerned.

GOOD FAITH

The Respondent's safety program at both job sites was evaluated by the Compliance Officer (T. 6-18, 27).   The safety indoctrination of employees, protective equipment, employee participation, and first aid facilities in both cases were considered (T. 16-18, 27).

Safe access ladders were absent from two of the Respondent's job sites. Respondent was cited for lack of a proper access ladder on July 21, 1972, under 29 CFR 1926.451(a)(13).   The apparent violation and the hazard which it presented were pointed out to Respondent's Vice-President, Mr. Koeppe, who described his position as General Field Coordinator (T. 41), yet the same violation was found on another job site on August 29, 1972.   The Respondent's own description of the safety program reveals no mention of any participation by non-supervisory employees; Karl Kehm states that only supervisors and foremen were sent to a training course (T. 64).   Since supervisors or foremen, however well trained, cannot continuously direct all employees, then an above average safety effort would have to include as a practical matter the non-supervisory employee's participation.   An illustration of the gap between managerial personnel and workers is shown by Kehm's own admission that he did not even   know that unsafe practices were occurring on his own job site (T. 68).   In order to make the Occupational Safety and Health Act workable, it is indispensable that there be participation by workmen, since most of the actual exposure to the hazards is experienced typically by non-supervisory employees, who (as in the instant case) climb onto ladders or scaffolds or operate machinery.

In the instant case, we have reoccurrence of similar violations, and the fact of a lack of participation by non-supervisory employees in the safety efforts.

The evidence of record indicates that the Department of Labor properly considered the gravity of the violations and the lack of effective, good faith efforts on Respondent's part to comply with the standards and that proposed penalties (as amended) were not inappropriate.

We have carefully studied the total evidence of record and our own evaluation is that the penalties as set forth by the Secretary are appropriate with the exception of the penalty for violation of Item 1, of the Citation For Other Than Serious Violation, which penalty should be $100.00.

FINDINGS OF FACT

1.   The Respondent, Kehm Construction Company, a corporation with its principal place of business at 3111 S. 67th Avenue, Omaha, Nebraska, is and has been at all times material hereto, engaged in the business of construction contractor at various sites in the State of Nebraska and elsewhere.   The Respondent regularly received in commerce goods and materials and supplies which have originated outside the State of Nebraska, and its employees regularly handle and work on goods that have been shipped or received in commerce (T. 8-9,   18-19; Complaint, paragraph 1; Answer, paragraph 1).

DOCKET NO. 1209

2.   On July 19, 1972, a Compliance Officer with the Occupational Safety and Health Administration of the United States Department of Labor, conducted an inspection of Respondent's work site at the Millard Junior High School for the purpose of ascertaining compliance with the Act (T. 8-9, 18-19).

3.   During the course of this inspection, the Compliance Officer was accompanied by Larry Rudolf, Respondent's Masonry Foreman, and conferred with Mr. Rudolf and Donald Koeppe, a Vice-President of Respondent's Company, who arrived after the initial walkaround.   During the inspection, the Compliance Officer also consulted with Mr. Kauffman, a Steward for the Bricklayers Local #1, who represented the employees (T. 8-10).

4.   A scaffold ten and one-half feet high was found at Respondent's work site at the Millard Junior High School, and this scaffold was being used to complete a section of brick wall on the South and East walls of the building.   There were two work platforms - one, four feet above the ground and another six and one-half feet above the ground level (T. 10-12).   Directly above the four foot work platform was a materials platform ten and one-half feet above the ground (T. 10-12).

5.   The placement and arrangement of blocks and bricks on the materials platform established that these materials had been placed on this platform by hand, with at least one of Respondent's employees standing on the work platform at the six and one-half foot level (T. 12, 13, 42, 43, 46).   The testimony of Mr. Koeppe confirms this indication (T. 12).

  6.   At the time of the inspection, no ladder or other equivalent means of safe access was provided for employee access to the platform at the six and one-half foot level (T. 46, 16).   Respondent's Foreman admitted the absence of the proper access ladder (T. 12).

7.   The absence of a ladder or other equivalent means of safe access could cause an employee climbing on the scaffold to lose his balance and fall (T. 13, 14).

8.   Respondent's employees could easily be injured as a result of a fall, and, in this particular situation, the injury could be severe, since pieces of reinforcing steel were protruding from the foundation beneath the scaffold (T. 14).   Respondent's safety program was evaluated at this site by the Compliance Officer as an average one (T. 16-18), after considering the facilities, employee participation in the safety program, and overall effectiveness of the program (T. 16-18).

DOCKET NO. 1438

9.   On August 29, 1972, a Compliance Officer of the Occupational Safety and Health Administration of the United States Department of Labor, conducted an inspection of Respondent's work site at 4041 North 72nd Street, Omaha, Nebraska, in order to ascertain compliance with the Act (T. 18, 19).

10.   On this inspection, the Compliance Officer was accompanied by Mr. Wyscarver, Respondent's Brick Foreman, and Mr. Koeppe (T. 18, 19).

11.   At this work site, the Respondent was found to be using a 20 foot aluminum ladder, the side rails of which were bent, and the top rung of which was damaged.   The damaged condition of this ladder substantially reduced its strength (T. 22-24).

12.   Respondent was found to be using this aluminum ladder for access to a metal frame scaffold; however, it   did not reach the work platform which was 19 feet high.   The ladder also extended 7 feet beyond its point of securement and bearing on a member of the   scaffold as depicted in Exhibit G-3 (T. 23).

13.   A fall, causing injury could result from either of these defects in the placement of this particular ladder (T. 25).

14.   The fact that the ladder did not reach the work platform required employees to gain access to the work platform by climbing on the scaffold panels (T. 23), as illustrated by Exhibit G-4 which pictures an employee doing just that.

15.   No other equivalent means of safe access was provided (Exhibits G-2, 3, 4).

16.   The absence of a proper access ladder at this work site could cause an employee to fall from a height of over 13 feet (T. 26), which would cause a serious injury to said employee (T. 25).

17.   Either defect in the aforesaid ladder, independent of the other, could cause an employee to fall (T. 26).

18.   Respondent's employees were using this scaffold and the ladder earlier in the day (T. 63).   One of Respondent's employees was seen working from the platform to which the ladder did not reach (T. 23, 33, Exhibit G-4).

19.   Some building materials, which appeared to be arranged and placed there by hand, were on a material platform adjacent to the work platform (T. 36, 37).

20.   The Compliance Officer evaluated Respondent's safety program on this job as average (T. 21, 39).   He considered the same factors of facilities, employee participation, and effectiveness of Respondent's program (T. 27).

21.   In assessing the penalties for the violations as set forth in Citations in Docket #1438 and 1209, due and proper consideration was given to the danger to   Respondent's employees, the likelihood of injury to the Respondent's employees, the extent of the alleged violations, size of Respondent's business, the good faith of the Respondent, and Respondent's history of previous safety violations (T. 27, 16-18).

CONCLUSIONS OF LAW

1.   At all times material hereto, Respondent was and is an employer within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (29 USC Section 651 et seq. ).

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

3.   Respondent has violated 29 CFR 1926.451(a)(13) in regard to the scaffold at the Millard Junior High School site.

4.   At Respondent's work site at 4041 North 72nd Street, Respondent violated 29 CFR 1926.450(a)(2) and 29 CFR 1926.451(a)(13).

5.   The penalties proposed for the aforesaid violations were appropriate with respect to the gravity of the violations, the size of Respondent's business, Respondent's history of previous violations, and Respondent's good faith with the exception of the penalty for violation of Item 1, of the Citation For Other Than Serious Violation, which penalty should be $100.00.

6.   Abatement requirements fixed in the Citations were reasonable, and were not contested by Respondent, any employee, or representative of employees as provided by Section 10 of the Act.

DECISION

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that:

  1.   Item 1 of the Citation For Other Than Serious Violations issued Respondent on July 21, 1972, and the accompanying proposed penalty, as amended, is affirmed.   (The question of abatement of this violation is moot).

2.   Item 1 and 2 of the Citation For Other Than Serious Violations issued Respondent on September 5, 1972, as amended, should be affirmed.

3.   The penalty for violation of Item 1 of the Citation For Other Than Serious Violation issued Respondent on September 5, 1972, is $100.00.

4.   The penalty ($205.00) for violation of Item   2 of the Citation, as amended, For Other Than Serious Violation issued Respondent on September 5, 1972, is affirmed.