1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.  


NORANDA ALUMINUM, INC.  


GENERAL MOTORS CORP., GM ASSEMBLY DIV.  


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.  


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.  


CCI, INC.  


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.  


CHAPMAN CONSTRUCTION CO., INC.  


GALLO MECHANICAL CONTRACTORS, INC.  


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.  


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  


BUNKOFF CONSTRUCTION CO., INC.  


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.  


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.  


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.  


BENTON FOUNDRY, INC.  


MICHAEL CONSTRUCTION CO., INC.  


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.  


ERSKINE-FRASER CO.  


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.  


FORTE BROTHERS, INC.  


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.  


VAMPCO METAL PRODUCTS, INC.  


LEONE INDUSTRIES, INC.  


ASARCO, INC.  


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.  


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.  


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.  


DONALD HARRIS, INC.  


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.  


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.  


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.  


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.  


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.  


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.  


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.  


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.  


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.  


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.  


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.  


AUSTIN ROAD CO.  


MAYHEW STEEL PRODUCTS, INC.  


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.  


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.  


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.  


PRESTRESSED SYSTEMS, INC.  


TEXACO, INC.  


GEORGIA HIGHWAY EXPRESS, INC.  


RED LOBSTER INNS OF AMERICA, INC.  


SUNRISE PLASTERING CORP.  


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.  


BUSHWICK COMMISSION COMPANY, INC.  


CIRCLE T DRILLING CO., INC.  


J.L. FOTI CONSTRUCTION COMPANY, INC.  


TEXACO, INC.  


KENNETH P. THOMPSON CO., INC.  


HENRY C. BECK COMPANY


HEATH & STICH, INC.  


FARMERS EXPORT COMPANY


FOSTER AND KLEISER


TURNER WELDING & ERECTION CO., INC.  


TRI-CITY CONSTRUCTION CO.  


THE DURIRON COMPANY, INC.  


SAMSON PAPER BAG CO., INC.  


MEL JARVIS CONSTRUCTION COMPANY, Inc.  


MIDWEST STEEL ERECTION, INC.  


GEISLER GANZ CORPORATION


NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY


NATIONAL MANUFACTURING COMPANY


WALLACE ROOFING COMPANY


REYNOLDS METALS COMPANY, INC.  


UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.  


SUFFOLK COUNTY CONTRACTORS, INC.  


NORANDA ALUMINUM, INC.  


ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.


GENERAL ELECTRIC COMPANY


SERVICE SPECIALTY, INC.  


ECCO HIGH FREQUENCY ELECTRIC CORP.  


HENRY C. BECK COMPANY


REPUBLIC ROOFING CORPORATION


EASLEY ROOFING & SHEET METAL CO., INC.  


MIDDLETOWN VOLKSWAGEN, INC.  


RICHARD ROTHBARD, INC.  


AUTOMATIC SPRINKLER CORPORATION OF AMERICA


PENNSUCO CEMENT AND AGGREGATES, INC.  


AMFORGE DIVISION, ROCKWELL INTERNATIONAL


MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.  


GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION


GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION


EDGEWATER STEEL CORPORATION


INTERLAKE, INC.  


PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.  


UNITED STATES STEEL CORPORATION, DUQUESNE PLANT


KENT NOWLIN CONSTRUCTION CO., INC.  


WANDER IRON WORKS, INC.  


SITKIN SMELTING & REFINING, INC.  


AMERICAN CYANAMID COMPANY


BETHLEHEM STEEL CORPORATION


J.L. FOTI CONSTRUCTION CO., INC.  

OSHRC Docket Nos. 76-4429; 76-5049

Occupational Safety and Health Review Commission

April 28, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Louis H. Orkin, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Cecil L. Cutler, Jr. is before this Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-675 ("the Act").   In that decision, Judge Cutler concluded, among other things, that Respondent, J.L. Foti Construction Co., Inc., was in nonserious violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.451(a)(4). n2 The judge assessed no penalty for this violation.   The Secretary of Labor ("Secretary") petitioned for review of the decision, excepting to the judge's ruling that the violation was nonserious and that it was not a repeated violation as alleged.   The Secretary also took exception to the judge's assessment of no penalty for that violation.   Chairman Cleary directed the case for review on the issues raised in the Secretary's petition.   For the reasons that follow, we conclude that Respondent was in violation of the Act and that the violation was repeated.

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n1 29 U.S.C. §   661(i).

n2 29 C.F.R. §   1926.451(a)(4) states, in pertinent part:

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section).   Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

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I

Respondent, a masonry contractor, was engaged in the construction of a department store at the Great Lakes Mall in Mentor, Ohio.   On September 24, 1976, a compliance officer from the Occupational Safety and Health Administration inspected the worksite.   A citation for alleged violations of the Act was issued on October 5, 1976.   One month later, the same compliance officer conducted a follow-up inspection of the same worksite.   As a result of the second inspection, Respondent was issued three citations on November 17, 1976.   Respondent contested [*3]   the October 1976 citation as well as the citations issued in November 1976.   Separate docket numbers were assigned by the Commission.   (Docket No. 76-4429 was assigned to the October 1976 citation and Docket No. 76-5049 to the November 1976 citations.) On February 22, 1977, Judge Cutler ordered the two cases consolidated for purposes of a hearing because the cases involved the same respondent and had common questions of fact.

A hearing was held on May 24, 1977.   Following the hearing, the judge issued a decision that affirmed the citation in Docket No. 76-4429.   In Docket No. 76-5049, Judge Cutler vacated citation 1, affirmed citation 2 as nonserious (not repeated as alleged), and vacated citation 3.   Neither party excepts to the disposition of Docket No. 76-4429, and no issue in that case has been directed for review.   29 C.F.R. § §   2200.91, .92. n3 Accordingly, the consolidation ordered by Judge Cutler is dissolved and the judge's decision in Docket No. 76-4429 is a final order of the Commission, with its date of issuance to coincide with the date of this decision and order.   See 29 U.S.C. § §   661(i), 659(c).   Similarly, neither party seeks review of the judge's disposition of [*4]   citations 1 and 3 in Docket No. 76-5049, and no issue involving those citations has been directed for review.   29 C.F.R. § §   2200.91, .92.   Accordingly, citations 1 and 3 of Docket No. 76-5049 are not before us on review.   See Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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n3 On December 5, 1979, Rule 91a of the Commission Rules of Procedure was re-designated Rule 92, to be codified as 29 C.F.R. §   2200.92.   44 Fed. Reg. 70,107.

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The issues presented by the Secretary's petition for review are limited to the questions of whether Respondent's violation of the Act for its failure to comply with 29 C.F.R. §   1926.451(a)(4) is repeated within the meaning of section 17(a) of the Act, 29 U.S.C. §   666(a) n4 and whether the penalty assessed by the judge is appropriate under section 17(j) of the Act, 29 U.S.C. §   666(i). n5 Consistent with the limited scope of the direction for review, we do not review other issues raised by Respondent in its brief before the Commission.   [*5]   In particular, the Commission will not address whether a violation in the first instance occurred.

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n4 Section 17(a) of the Act provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

n5 Section 17(j) of the Act provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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II

During the November 1976 inspection, the compliance officer observed several or Respondent's employees as they worked from scaffolding to construct the outside walls of a building.   The top tier of the scaffold had some vertical [*6]   uprights but had no guardrails. This portion of the scaffold was 14 feet 7 inches from the ground.   A mason's runway, connected to the scaffold, had no end rails and was between five and nine feet from ground level.   Three laborers were observed on the top tier of the scaffold, and two brick masons were seen on the runway.   Although one of the laborers on the scaffold was in the process of installing guardrails at the time of the inspection, the Judge concluded that these conditions constituted noncompliance with the standard at 29 C.F.R. §   1926.451(a)(4) and this conclusion has not been directed for review.

The Secretary characterized the violation as "repeated." As indicated previously, the judge found the violation to be nonserious. The basis of the Secretary's repeated characterization is a previous uncontested citation that alleged Respondent's failure to comply with precisely the same standard.   The prior citation was issued to Respondent one year before the citation now before us.   The previous violation concerned an unguarded scaffold on a building in progress at a shopping center in the suburbs of Cleveland, Ohio.   That scaffold was 30 feet above the ground and had one [*7]   top rail that was slanted and improperly attached.   There were no midrails.   Since Respondent did not contest the earlier citation, it has become a final order of the Commission by operation of law. Section 10(a) of the Act, 29 U.S.C. §   659(a). n7 The compliance officer testified that when he considered the past history of the Respondent in order to determine the proper classification of the alleged violation, he knew of the previous citation issued to Respondent the year before.   It was on this knowledge that the compliance officer classified the violation before us as repeated.

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n7 Section 10(a) states, in pertinent part:

If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, . . . the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

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III

In its arguments before the administrative [*8]   law judge, Respondent contended that the uncontested final order used to support the Secretary's repeated charge in this case is so different from the alleged violation here that it should not be considered as an adequate basis to find the violation to be repeated. Respondent also argued that no repeated violation should be found because at the time of the inspection, Respondent's employees were in the process of installing guardrails. Finally, Respondent noted that the Secretary failed to introduce into evidence any documents demonstrating the existence of a prior final order. Respondent argued that the Secretary failed to establish a repeat violation in the absence of "proper and authenticated documentation of final convictions of other similar alleged violations . . . ."

The Secretary argued that a repeated violation is established if an employer previously violated the same standard and if the citation for the prior violation was a final order at the time of the alleged repeated violation.   Busing his allegation of a repeated violation of section 1926.451(a)(4) on a final order of a year before that involved the same employer and the same standard, the Secretary contended   [*9]   that he successfully met his burden of proof at the hearing.

Judge Cutler held to the contrary, setting forth as his reasons the following factors.   First, the scaffold in the first instance was 30 feet above ground as compared to the scaffold height of 14 feet 4 inches in the instant case.   Second, the scaffold in the earlier citation had one top rail that was slanted and not properly attached, and there were no midrails.   Third, Respondent was in the process of installing guardrails at the time of the inspection in the present case.   The judge concluded that the aggregate of these facts did not "reflect a knowing or conscious disregard of the statute or the flouting of its provisions." Juege Cutler therefore concluded that Respondent was in nonserious, but not repeated, violation of the Act.

IV

In both his petition for review and brief on review, the Secretary contends that the judge erred in not holding the alleged violation to be repeated. The Secretary argues that consideration of an employer's state of mind is irrelevant in determining whether a violation is repeated. He maintains that a prior final order for a violation of the same standard is an adequate basis for a repeated [*10]   violation. n8 Further, the Secretary argues that the judge's statement that the violation is "almost de minimus" is unsupported by the record.   By failing to assess a penalty for the violation, the Secretary concludes, the judge "seriously undermines any incentives for compliance."

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n8 The Secretary objects to what he perceives to be a holding by the judge to the effect that an uncontested prior citation that evolved into a final order pursuant to section 10(a) of the Act, note 6 supra, may not be the basis for a finding that the instant violation is repeated. The Secretary thus reads the judge's decision as holding that only final orders resulting from Commission review can be the basis of a repeated citation.   We need only note that the judge made no such holding.   The judge properly considered as a basis for the repeated classification one previous uncontested citation issued to Respondent that had evolved into a final order before the inspection in this case.

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In its brief on review, Respondent urges [*11]   again its position taht for the Secretary to meet the burden of proving a violation to be repeated, it must submit to the Commission "proper and authenticated documentation of final convictions of other similar alleged violations." Respondent further argues that the Secretary must also prove that the subsequent violation in a repeated charge be "factually identical" to the previous violation.   Respondent also argues that since the area director was not called to testify, the Secretary did not present sufficient evidence for the judge to consider the reasonabless of the proposed penalties.   The only evidence on the issue of proposed penalties, the Respondent contends, is the testimony of the compliance officer who made his report, including his personal recommendations for proposd penalties, to the area director.   In light of this alleged deficiency of evidence in the record, Respondent argues that consideration of any penalties would therefore be improper and, in the absence of the "establishment of a penalty," the entire action should be dismissed.   Furthermore, Respondent contends that the Secretary improperly based part of the proposed penalty on earlier citations that were [*12]   not yet final.

V

In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) ("Potlatch"), we 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 final order against the same employer for a substantially similar violation.

We also stated in Potlatch that:

[T]he Secretary may establish a prima facie case of similarity by showing that the prior and present violation are for failure to comply with the same standard.

Id. at 7 BNA OSHC 1063, 1979 CCH OSHD at p. 28,171. The employer may seek to rebut this showing by offering evidence that the violations occurred under disparate conditions or involved different hazards. Factors such as the employer's attitude, the commonality of supervisory control over the violative conditions, the geographic proximity of the violations, the time lapse between the violations, and the number of earlier violations are relevant only in determining an appropriate penalty. Potlatch Corp., supra; FMC Corp., 79 OSAHRC    , 7 BNA OSHC 1419, 1979 CCH OSHD P23,631 (No. 12311, 1979).

In this case, the standard [*13]   in issue is the same in both the prior and present instances.   The Secretary established his prima facie case by also showing that both citations were issued to the same employer and that the earlier citation was a final order. Respondent has not offered evidence sufficient to show a dissimilarity between the violations.   Both violations involved potential falls from unguarded scaffolds being used on masonry construction.   The difference between a fall distance of 15 feet, as in the present violation, and 30 feet, as in the antecedent violation, is not so dissimilar as to prevent a finding of repeated. Respondent argues that in the present case its employees were in the process of erecting guardrails when the inspection took place.   Two of its employees, however, who were not in the process of putting up guardrails, also were exposed to the unprotected sides of the scaffold. Respondent's other arguments concerning its attitude toward employee safety, the different supervisors assigned to the two projects, and the separate locations of the jobsites relate to the factors of penalty assessment rather than to the issue of whether the present violation is repeated. Potlatch Corp., [*14]   supra. We find that the Secretary has satisfied his burden of proving that the violation in this case is repeated within the meaning of section 17(a) of the Act, 29 U.S.C. §   666(a).

This case was heard and the judge's decision was issued before the Commission issued its decision in Potlatch. Under these circumstances, the Commission would normally afford Respondent an opportunity to present rebuttal evidence.   Triple "A" South, 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD § 23,555 (No. 15908, 1979).   In the present case, however, the Secretary has presented a prima facie case of a repeated violation, and the evidence of record indicates that Respondent here could not rebut the Secretary's case.   Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979).   Accordingly, we find a remand to be unnecessary. n9

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n9 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 occurrence of a substantially similar violation.

Applying these principles here, Commissioner Barnako finds that the past and present violations of the standard are substantially similar. Although the Secretary did not introduce the first citation into evidence, the compliance officer testified that the first citation was for a failure to comply with 29 C.F.R. §   1926.451(a)(4) in that a scaffold 30 feet in height was not properly guarded.   The compliance officer's testimony thus established that the previous citation, like the citation it issue here, addressed a falling hazard to employees working on a scaffold and required the erection of proper guardrails. This testimony is sufficient to establish that the instant violation is substantially similar to the violation set forth in the prior citation.   Respondent's arguments, noted supra, do not alter this conclusion.

Respondent argues that its employees were erecting guardrails when the inspection took place and that this makes out a defense to the violation.   Although this evidence is relevant to Commissioner Barnako's good faith efforts defense, it is not alone sufficient to establish the defense.   As the majority notes, two other employees who were not erecting guardrails were exposed to the falling hazard. Moreover Respondent has introduced no evidence showing the steps it took after entry of the prior final order to prevent the occurrence of substantially similar violations.   However, since this case was tried prior ot the issuance of Potlatch, supra, Commissioner Barnako would afford Respondent the opportunity to present additional evidence on the good faith efforts defense.   See Triple "A" South, Inc., supra. Therefore Commissioner Barnako would enter a conditional order, affirming the citation as repeated, but would afford Respondent 10 days from the issuance of this decision to move that the case be reopened for the taking of additional evidence as to the steps Respondent took after the first citation became a final order to prevent occurrence of a substantially similar violation.

  [*15]  

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VI

Respondent argues on review that the Secretary, by failing to submit "proper and authenticated documentation of final convictions of similar violations" to support the repeated charge, did not meet his required burden of proof. At the hearing, the compliance officer testified that Respondent had been cited three times in the past for scaffolding violations.   The compliance officer stated that one of these citations had not been contested and the penalty proposed for it had been paid.   The Secretary argues on review, as he did before the judge, that the uncontested citation was a final order of the Commission by operation of law at the time of the alleged repeated violation and is therefore a proper basis for a repeated violation charge.

When a citation and accompanying notification of proposed penalty are not contested by an employer within the statutory period allowed for contests, the citation and penalty, as proposed, "shall be deemed a final order of the Commission and not subject to review by any court or agency." 29 U.S.C. §   659(a), supra note 4.   No document physically represents a final [*16]   order of the Commission in situations where the citation is not contested. We therefore read Respondent's argument to be a claim that the Secretary must introduce the antecedent citation into evidence.

The implicit foundation of Respondent's argument is that the "original document" or "best evidence rule" must be applied. n10 This rule of evidence is applicable only when the contents of a particular document or writing are to be established.   Minneapolis-Moline, Inc. v. Bryan (In re Mobilift Equipment of Florida, Inc.), 415 F.2d 841, 844 (5th Cir. 1969). Under such circumstances, the rule requires generally that the original document must be introduced into evidence, Id. In order to trigger the application of the best evidence rule, an objection must be raised by the party against whom secondary evidence n11 is sought to be introduced.   2 S. Gard, Jones on Evidence §   7.3 (1972).   The objection must be timely, generally before the secondary evidence has been admitted.   Id.

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n10 Rule 1002, Federal Rules of Evidence states:

Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

n11 The writing or document itself is the "best evidence" or primary evidence of its contents, and any proof of a lower degree is secondary evidence. 2 S. Gard, Jones on Evidence § §   7.1, 7.2 (1972 & Supp. 1979).

  [*17]  

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Respondent did not object at the hearing to the testimony of the compliance officer concerning either the contents of the prior citation or that it was uncontested and had evolved into a final order. Respondent did not then, nor does it now, dispute the existence or contents of the citation, or the existence of the prior final order. What is sought is the production of the prior citation.   In this instance, we do not find such a requirement to be necessary.

Our conclusions that Respondent had been cited previously for an alleged violation of the same standard in issue here, that the prior citation was uncontested and the penalty paid, and that the citation was a final order by operation of law at the time of the alleged repeated violation are predicated upon a preponderance of the evidence in this record.   Respondent's failure to timely object to the admission of the secondary evidence and the lack of dispute concerning the contents of the prior citation preclude our application of the best evidence rule in these circumstances. n12

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n12 We note, however, that the Secretary runs the risk of failing to carry his burden of proof as to the repeated characterization of the violation when a copy of any prior citation upon which a repeated charge is based is not introduced into evidence.   A copy of the prior citation plus testimony that it was uncontested and that the proposed penalty, if any, was paid would clearly prove a final order of the Commission sufficient to support an alleged repeated violation.

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VII

In this case, the Secretary proposed a penalty of $635 for the repeated violation.   The judge, noting that Respondent was in the process of erecting guardrails at the time of the inspection and that the exposure was "minimal," found "no penalty [to be] necessary or appropriate."

Respondent makes two arguments with regard to the penalty assessment.   Respondent first argues that there is insufficient evidence on the propriety of the penalty because the area director who made the final determination of the penalty did not testify.   Respondent's argument is based on a misunderstanding of the law.   The Secretary   [*19]   of Labor, through his area directors, may only propose a penalty.   It is the Review Commission alone that has the authority to assess civil penalties for violations of the Act.   29 U.S.C. §   666(i), note 4 supra. The penalty proposed by the Secretary is assessed only if not contested; otherwise, the Review Commission can affirm the penalty as proposed, modify it, vacate it, or direct other appropriate relief.   Long Manufacturing Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977); California Stevedore and Ballast Co. v. OSHRC, 517 F.2d 986 (9th Cir. 1975). The determination of an appropriate penalty is within the discretion of the Review Commission.   Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978); Long Manufacturing Co., supra.   In assessing penalties for violations of the Act, the Commission must consider the size of the business of the cited employer, the gravity of the violation, the employer's good faith, and the history of previous violations.   29 U.S.C. §   666(i), supra note 4.

Evidence bearing on these factors was introduced by the Secretary through the testimony of the compliance officer and this evidence was not refuted by Respondent.   [*20]   We conclude that there is sufficient evidence in this record to allow the Commission to determine an appropriate penalty in light of the statutory factors.

Respondent also argues that the Secretary improperly considered citations that were not final in determining the proposed penalty. The Secretary admits this, but as explained above, the Commission assesses the penalty, and we consider only the one citation that was a final order at the time the violation in this case occurred.

Respondent employed 28 workers on the job that was inspected and had other employees working at other construction jobs.   The likely consequences of a fall from more than 14 feet are serious in nature. n13 Although one of Respondent's employees was installing guardrails, two other employees were working on the wall from the same scaffold.

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n13 Cf. R.L. Sanders Roofing Company, 79 OSAHRC    , 7 @BNA OSHC 1566, 1979 CCH OSHC P23,756 (No. 76-2690, 1979) (fall of 13 feet from a flat roof likely to cause death or serious physical harm within the meaning of §   5(a)(1), 29 U.S.C. §   654(a)(1) of the Act).

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In consideration of these factors, we find a penalty of $600 to be appropriate. n14

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n14 In the event the citation becomes a final order, Commissioner Barnako would assess a penalty of $300.   In considering the criteria to be weighed in assessing a penalty as set forth at 29 U.S.C. §   666(i), Commissioner Barnako would give added weight to the fact that some of Respondent's employees were erecting a guardrial at the time of the inspection. For this reason he disagrees with his colleagues' conclusion that the penalty of $600 is appropriate.

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Accordingly, we find Respondent to be in repeated violation of the Act for failure to comply with 29 C.F.R. §   1926.451(a)(4), and assess a penalty of $600.

So ORDERED.