UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 13746

SMITH MASONRY CONTRACTORS, INC.,

 

                                              Respondent.

 

 

January 3, 1978

DECISION

Before CLEARY, Chairman; and BARNAKO, Commissioner.

CLEARY, Chairman:

            A decision of Administrative Law Judge Thomas J. Donegan is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’]. In that decision the Judge, among other things,[1] vacated a citation for a repeated nonserious violation of section 5(a)(2) of the Act that alleged that respondent, Smith Masonry Contractors, Inc., failed to comply with the safety standard published at 29 CFR § 1926.451(a)(4).[2]

            Following the issuance of the Judge’s decision the Secretary of Labor filed a petition for discretionary review. The petition, which was granted by the Chairman, raised the following issues:[3]

            (1) Whether the Administrative Law Judge erred in concluding that respondent’s employees were not exposed to the hazard of unguarded scaffolds in the ‘shop’ area of respondent’s worksite?

             (2) If the Judge did err, was the violation repeated?

            For the reasons that follow, we answer both questions in the affirmative and affirm the citation.

            At the time of the inspection, on May 28, 1975, respondent was engaged in masonry work for the construction of the National Fish Hatchery on the Warm Springs Indian Reservation in Oregon. Respondent had three employees on the site. Two of the employees, both of whom were bricklayers, were laying cinderblocks around the core of a column on the river intake area, about 100-200 feet from the shop area of the building under construction where respondent had previously been working. The third employee, a hod carrier, was supplying the bricklayers with blocks and mortar. He was also dismantling the scaffolding in the shop area whenever the bricklayers required additional scaffolding where they were working.

            The scaffolding in the shop area had been erected at three locations: at the north wall both inside and outside the shop area, and on the south wall inside the shop area.

            The scaffolds had two levels. The lower level was 6 feet 6-inches off the ground, while the higher level was 13 feet. The compliance officer testified that he observed no guardrails at the 13-foot level of any of the scaffolding in the shop area. He stated that he did not see any of respondent’s employees using the scaffold. Moreover, he testified that he was told by the employees that the scaffold was last used five days before the inspection.[4] Nevertheless, the compliance officer apparently concluded that employees had access to the upper level of the scaffold because, as evidenced by exhibit C-3, there was a ladder leading to the 13-foot level of the scaffold inside the north wall, and the scaffold contained quantities of cinderblock which had to be taken down before it was dismantled. The removal would necessarily result in the actual exposure of employees to a fall hazard.

            Respondent’s foreman denied that any of the employees were on the scaffold on the day of the inspection. He testified that due to a delivery failure, he was forced to stop work on the shop walls. Instead, he and the other bricklayer began working at the river intake area. The hod carrier spent his time both supplying them with equipment and dismantling the scaffold. According to the foreman the hod carrier dismantled the upper level of the scaffold while standing on the 6 foot 6 inch level of the scaffold by reaching up to the 13-foot level.

            Judge Donegan held that the Secretary failed to establish employee exposure. He noted that there were neither mortar boards[5] nor mortar on the scaffolds, thus indicating that no construction work was being done. Failing to find any other evidence that employees were exposed to the unguarded scaffold on the day of the inspection, the Judge vacated the citation.

            The Secretary, on review, takes exception to the Judge’s failure to find employee exposure. He argues that photographic exhibits C-3 and C-4 provide circumstantial evidence proving that on the day of the inspection, an employee of respondent was on the scaffold located on the inside of the north wall of the shop area. According to the Secretary, exhibit C-3 depicts a pile of masonry blocks located in about the center on the 13-foot level, a ladder to reach that level, no guardrails or toeboards, respondent’s employee standing directly behind the ladder on the 6 foot 6 inch level, and a few masonry blocks placed on the edge of the left side of the 6 foot 6 inch level. Exhibit C-4, which was taken ten minutes later, shows that the pile of masonry blocks which were on the 13-foot level had been removed and placed on the left side of the 6 foot 6 inch level, directly next to the few masonry blocks which were shown in exhibit C-3. In addition, the ladder shown in exhibit C-3 had been removed. The Secretary argues that these two exhibits, when taken together, permit strong inferences of actual exposure of employees to the unguarded scaffold in the course of removing the masonry blocks.

            The Secretary also argues that respondent was not dismantling the scaffolds. Although some planks were removed from the scaffold on the outer north wall of the shop area, no other scaffolding was removed during the course of the three-hour inspection. In any event, it is argued, the dismantling of the scaffold did not excuse the failure to have guardrails if employees still were using them.

            Finally, the Secretary asserts that the citation should be affirmed as ‘repeated.’ The Secretary observes that respondent had been cited twice previously for failure to comply with § 1910.451(a)(4) and that both citations had become final orders before the instant inspection.

            Respondent argues for affirmance of the Judge’s decision. It stresses that work at the shop area had ceased and that its employees had no reason to be on the 13-foot level of the scaffold. Respondent also contends that the hod carrier removed the planks from the 13-foot level of the scaffold by reaching from the level below. Finally, respondent emphasizes that although the ladder on the inside north wall of the shop provided a means of access to the 13-foot level, the compliance officer testified that he had no evidence that the ladder was used to gain access to the upper level. Nowhere, however, does respondent meet the Secretary’s argument that exhibits C-3 and C-4 establish employee exposure.

            We agree with Judge Donegan’s finding that at the time of the inspection respondent’s employees had finished laying the blocks at the shop area, and that the scaffolds were being dismantled. The Judge did not consider, however, that the cleanup of the area had not concluded. Both tools and blocks remained on the scaffolds, which were being dismantled. Exhibits C-3 and C-4 persuasively establish that during this period, respondent’s hod carrier climbed onto the unguarded 13-foot level of the inside north wall scaffold to remove the blocks before dismantling it, thereby exposing himself to the hazardous condition.

            Exhibit C-3 shows that the distance between the ladder and the pile of blocks on the 13-foot level was too great for the hod carrier to have removed the blocks while standing on the ladder. Exhibit C-4 shows that the blocks were removed to the lower level of the scaffold. The most obvious and perhaps the only way the blocks could have been removed was for the hod carrier to have climbed the ladder onto the 13-foot level, walked to the blocks, and carried them down the ladder, and finally placed them in the corner of the lower level.

            We note that the compliance officer testified that he did not know if respondent’s employee actually climbed onto the scaffold, or if he removed the blocks while standing on the lower level by reaching up between a space in the planks. Exhibit C-3 reveals, however, that the top blocks on the pile would have been far too high for the hod carrier to have reached while standing on the lower level. We find the Secretary’s interpretation of the evidence to be persuasive, and exposure to have been established by circumstantial evidence. See Chicago Bridge & Iron Co., 74 OSAHRC 92/A2, 2 BNA OSHC 1413, 1974-75 CCH OSHD para. 19,158 (No. 224, 1974), aff’d 535 F.2d 371 (7th Cir. 1976). With no other explanation offered by respondent, we find that the hod carrier was exposed to the unguarded scaffold.

            We also conclude that the violative condition is repeated. In Chairman Cleary’s view, it is enough that respondent had been cited twice previously for a failure to comply with § 1926.451(a)(4), and that both citations had become final orders before the inspection in this case. See Chairman Cleary’s separate opinion in George Hyman Constr. Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), petition for review docketed, No. 77-1591, 4th Cir., May 2, 1977.

            In Commissioner Barnako’s view, it is not enough to show previous violations; some showing that the employer has failed to take steps to prevent a recurrence of the violative condition is required, and he would find a prima facie failure to take such steps when the same violation recurs under the same supervisor. See Commissioner Barnako’s opinion in George Hyman Constr. Co., supra. In this regard, Commissioner Barnako takes official notice of Administrative Law Judge Stuller’s decision in Smith Masonry Contractors, Inc., 73 OSAHRC 49/B6, 1 BNA OSHC 3212, 1973-74 CCH OSHD para. 16,638 (No. 2042, 1973), which involves one of the two previous violations of § 1926.451(a)(4) by respondent cited by the Secretary in support of the repeated allegation. That decision states that, as in the instant case, a Martin Holm was the supervisor in charge of the worksite. Accordingly, Commissioner Barnako finds the violation is ‘repeated.’ Both members agree that under the circumstances here and consistent with 5 U.S.C. § 556(e), respondent be given ten (10) days from the service of this order to request an opportunity to show that the supervisor in this case and Docket No. 2042 were not the same individuals.

            Regarding the penalties, we conclude that the $340 proposed by the Secretary is appropriate. Respondent is an employer with approximately 100 employees on its payroll. Only one employee was exposed briefly but the gravity of the violation was moderately high. Not only were there no guardrails, but the scaffold had been partially dismantled thereby reducing the size of the platform on which the exposed employee had to stand. Finally, as discussed above, the violation was ‘repeated.’

            Accordingly, it is ORDERED that citation 3 for a repeated failure to comply with § 1926.451(a)(4) is affirmed and a penalty of $340 is assessed, unless respondent requests, within 10 days of the date of this decision, an opportunity to show that the supervisors in this case and in Docket No. 2042 were not the same person. In the latter event further proceedings, consistent with this opinion, may be held.

 

FOR THE COMMISSION:

 

Ray H. Darling Jr.

Acting Executive Secretary

DATED: JAN 3, 1978

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 13746

SMITH MASONRY CONTRACTORS, INC.,

 

                                              Respondent.

 

 

For the Complainant: William W. Kates, Attorney Office of the Solicitor U.S. Department of Labor

7009 Federal Office Building Seattle, WA 98174

 

For the Respondent: James R. Watts, Esquire

3434 SW Water Avenue Portland, OR 97201

 

DECISION AND ORDER

Donegan, Judge:

            This is a proceeding pursuant to section 10(c) 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).

            The Respondent, Smith Masonry Contractors, Inc., was engaged in masonry work at the National Fish Hatchery, Warm Springs Indian Reservation, Oregon, when this worksite was inspected on May 28, 1975 by a compliance officer (inspector) of the Occupational Safety and Health Administration, U.S. Department of Labor.

            The four citations and the notification of proposed penalties totaling $480, issued on June 9, 1975 as a result of this inspection, were timely contested by the Respondent.

            The complaint differs from citation number three in that there is the additional allegation in paragraph IV, sub-paragraph 3 of the complaint that ‘toeboards’ were not provided. The Respondent moved at the opening of the hearing to strike this additional allegation concerning ‘toeboards’. This motion was denied; and the Complainant’s motion, also made at the hearing, to amend citation number three to conform to the allegation of the complaint concerning ‘toeboards’ was granted (T. 7,25).

            The citations, proposed penalties and the standards allegedly violated are as follows:

Citation Number One (Nonserious)

Item Number 1—‘A metal extension ladder in the shop area under construction used to gain access to scaffolding 13 feet above ground level was not secured against movement.’

 

Abatement Date: Immediately upon receipt of citation

 

Proposed Penalty: None

 

Standard cited: 29 CFR 1926.450(a)(10)

 

§ 1926.450—Ladders

(a) General Requirements

(10) Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.

 

Citation Number Two (Repeated Nonserious)

Item Number 1—‘No ladder was used to gain access to the 66‘ or 13 level of scaffolding in the shop being constructed and to scaffolding 66‘ above ground around pillers under construction at south end of construction site.’

 

Abatement Date: Immediately upon receipt of citation

 

Proposed Penalty: $70

 

Standard cited: 29 CFR 1926.451(a)(13)

§ 1926.451—Scaffolding

(a) General Requirements

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

 

Citation Number Three (Repeated Nonserious)

Item Number 1—‘Scaffolding in the shop under construction approximately 13 above ground level did not have guardrails installed.’

 

As amended in the complaint:

‘Standard guardrails and toeboards as defined at 29 CFR 1926.451(a)(5) were not provided on the 13 foot high levels of the scaffolding located inside of and at both the north and south ends of the aforesaid shop area, contrary to 29 CFR 1926.451(a)(4).’

 

Abatement Date: Immediately upon receipt of citation

 

Proposed Penalty: $340

 

Standard cited: 29 CFR 1926.451(a)(4)

§ 1926.451—Scaffolding

(a) General Requirements

(4) 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.

 

Citation Number Four (Repeated Nonserious)

Item Number 1—‘Building material was stored on scaffolding on both sides of the north wall of the shop area and on the scaffolding located at the south wall of the shop.’

 

Abatement Date: Immediately upon receipt of citation

 

Proposed Penalty: $70

 

Standard cited: 29 CFR 1926.250(b)(5)

§ 1926.250—General Requirements for Storage

(5) Materials shall not be stored on scaffolds or runways in excess of supplies needed for immediate operations.

 

            It was stipulated that the Respondent is an Oregon Corporation which was engaged in activities affecting commerce at the Warm Springs Indian Reservation worksite, and that the Commission has jurisdiction in the case (T. 5–6).

            No affected employees or representatives of affected employees have elected to participate in this proceeding (T. 3–5).

            The attorneys for the parties have submitted post-hearing briefs.

FINDINGS

            The violations which are alleged to have occurred on May 28, 1975, the date of the inspection, are principally concerned with three scaffolds that had been erected some time before the inspection for the purpose of constructing the walls of a building which is referred to in the citations and complaint as the ‘shop’ or ‘shop area’. A roof had not been placed on the walls at the time of the alleged violations (T. 48, 57, 93; exhibits C–1, C–2, C–3, C–4, C–5).

            The fourth scaffold involved in one of the alleged ladder access violations of citation number two was located at one of the pillars which had been erected at the ‘river intake area’ of the worksite, approximately 100 feet away from the ‘shop’ building (T. 58, 169). There is no photograph of this scaffold.

            The significant issue in each of the alleged violations involving the three scaffolds located at the north and south walls of the ‘shop’ is whether the three employees at the worksite on the day of the inspection were exposed to work hazards caused by these alleged violations. With the exception of the violation charged in citation number four (blocks stored on scaffolding), it is concluded that they were not.

            On May 28, 1975, the date of the inspection and of the alleged violations,[6] no work was being done on the walls and none had been done since May 23, 1975 (T. 90, 120, 123, 126). On the inspection date there were no mortar boards or mortar on the scaffolding located at the ‘shop’ and the uncontradicted evidence of record sustains a finding that the foreman, Holm, and the bricklayer, Oja, were doing masonry work on the pillars located at the ‘river intake area’ of the worksite (T. 173).

            The only one of the three employees engaged in work activity on the scaffolds on the day of the alleged violations was the hod carrier, who was dismantling the ‘shop’ scaffolding for the purpose of moving sections of it to the river area for erection around the pillars. Part of the scaffolding had been removed prior to the date of the alleged violations (T. 169–171). This work activity of the hod carrier was supplemental to his principal duties which required that he keep employees Holm and Oja supplied with blocks and mortar for the masonry work on the pillars at the river level.

            On May 28, 1975, the walls of the ‘shop’ had been completed except for the installation of a beam anchor to hold the roof. Work had been discontinued awaiting delivery of the beam anchor. Before resuming work on the scaffolding, it would be necessary to restore parts of the scaffolding that had been removed and to enlarge it (T. 161–167).

            The inspector testified that he concluded there was employee exposure to hazards created by the alleged violations on May 28, 1975 because of statements made to him by employees Holm and Oja concerning the condition of the scaffolding when it was last used on May 23, 1975 (T. 107–109, 120–121, 133–134). Mr. Oja did not testify and Mr. Holm’s testimony does not support the inspector’s testimony concerning the condition of the scaffolding on May 23, 1975. It is concluded that the inspector’s testimony in this regard is of no probative value.

            The alleged violations involving the three ‘shop’ scaffolds do not come within the ambit of Brennan v. O.S.H.R.C. & Underhill Construction Corporation, 513 F.2d 1032 (2nd Cir. 1975) wherein it was held that to prove a violation of a safety or health standard it need only be shown that a hazard has been committed and the area of the hazard was accessible to the employees of the cited employer.

            When evaluating the issue of employee exposure to the hazards of the ‘shop’ scaffolding, it is helpful to consider the analogy of a partially dismantled machine which is not in compliance with applicable safety standards but is accessible to employees. The scaffolding was undergoing partial dismantlement and was neither available nor was it being used for any kind of construction work at the time of the alleged violations.

            Citation Number One (Nonserious)

            The ladder in this alleged violation appears in the first photograph (exhibit C–3) taken by the inspector of the scaffolding located at the interior side of the north wall of the ‘shop’. The ladder had been removed when the inspector took the second photograph (exhibit C–4), some ten minutes later (T. 64, 135).

            The inspector testified that this metal ladder was not attached to the scaffolding or another stable structure to prevent it from moving when being used (T. 65). He did not see anyone using the ladder and said he had no evidence that it had been used to gain access to the 13-foot level of the scaffolding as alleged in the citation and complaint, but did have as to the 6 1/2-foot level (T. 119–120).

            The foreman, Martin Holm, testified that the ladder was used by the hod carrier, Gary Norden, for the purpose of dismantling the scaffold (T. 166–167). The hod carrier appears in photographs C–3 and C–4, standing on the 6 1/2-foot level of the scaffold.

            The ladder was not tied or blocked; but it is concluded that it was ‘otherwise secured’ to prevent it from moving, since it was equipped with rubber skid safety feet which rested on the dry concrete floor of the ‘shop’. Under the circumstances of the ladder being utilized for the dismantling of the scaffold, it was not feasible for the Respondent to comply with the requirement that the ladder be tied or blocked. It is concluded that the rubber skid safety feet resting on a dry concrete floor complied with the requirement of the cited standard (29 CFR 1926.450(a)(10)) in this instance.

            Citation Number Two (Repeated Nonserious)

            There are two worksite areas involved in the allegation that no ladder or equivalent means of safe access to the scaffolding were provided, contrary to 29 CFR 1926.451(a)(13).

            The first area involves the scaffolding in the ‘shop’. The ladder that was located in the ‘shop’ has been referred to in the discussion of the violation alleged in citation number one. Findings have also been made that the scaffolding in the ‘shop’ was being partially dismantled and was not available for construction work at the time of the alleged violations. As to the allegation that no ladder or equivalent means of safe access was provided for the ‘pillar’ scaffolding in the ‘river intake area,’ it is also concluded that this charge is not supported by credible evidence (T. 58, 69, 132, 176–178).

            Citation Number Three (Repeated Nonserious)

            This citation has been amended to conform to the allegation of the complaint that the Respondent was in violation of 29 CFR 1926.451(a)(4) in that the scaffolding located inside of the north and south walls of the ‘shop’ were not provided on the 13-foot high levels of the scaffolding with standard guardrails and toeboards as defined at 29 CFR 1926.451(a)(5). As in the other citations, this violation is alleged to have occurred on the date of the inspection.

            The evidence sustains a finding that this scaffolding did not have guardrails or toeboards on the 13-foot level as alleged in the citation. Nevertheless, it is concluded that the Respondent was not in violation of the cited standard on May 28, 1975. As stated previously in this decision, the scaffolding was being partially dismantled and was not used by the Respondent’s employees in this area of the worksite for construction purposes on the date of the alleged violation.

            Citation Number Four (Repeated Nonserious)

            The substantial evidence of record sustains a finding that masonry blocks in excess of supplies needed for immediate construction work were stored on the scaffolding on May 28, 1975, as alleged in the citation and complaint (T. 75–76, 80–87, 95, 111–113, 123, 125–126, 133; exhibits C–1, C–2, C–3, C–4, C–5).

            The scaffolding involved in this violation had not been used for the purpose of constructing the wall for a number of days prior to the inspection, and the masonry blocks stored on the scaffolding were not needed for immediate construction work. The hod carrier engaged in dismantling the scaffolding and the other two employees when in the vicinity of this scaffolding, were exposed to the possibility of being hit by a falling masonry block if the scaffolding was accidentally jolted. There were no toeboards on the scaffolding to prevent a masonry block from slipping over the edge of a level of the scaffolding on which it was stored. The violation was of a low level of gravity.[7]

            At the conclusion of the Complainant’s case, the Respondent moved to dismiss the allegation that this was a repeated violation within the meaning of section 17(a) of the Act.[8] In support of the motion, the Respondent contended that the Complainant had failed to sustain the burden which it had assumed in the complaint of showing similarities of fact, import, and character to the worksite conditions and practices present on March 26, 1973 at the Port of Portland Airport construction worksite (T. 148–157).

            Exhibit C–7 is a copy of a citation issued to the Respondent on April 18, 1973 as a result of an inspection of the Respondent’s construction worksite at the Port of Portland Airport on March 27, 1973. The citation states that the Respondent was engaged in masonry work on a building at this worksite, and in item number 4 alleges that the Respondent violated 1926.250(b)(5) in that ‘cement blocks were stored on scaffolding approximately 18 feet above ground level on north side of building; employees working below.’ The parties stipulated at the hearing that this alleged violation was affirmed and became a final order of the Commission[9] (T. 99–105).

            In the absence of evidence to the contrary, in the form of an affirmative defense; it is concluded that the Complainant made a sufficient showing of similarities in the violations of March 26, 1973 and May 28, 1975 to sustain a finding that the violation on May 28, 1975 was a repeated violation of 29 CFR 1926.250(b)(5) within the meaning of section 17(a) of the Act.

            Pursuant to the provisions of section 17(j) of the Act,[10] an appropriate civil penalty for this repeated nonserious violation is $50.

CONCLUSIONS OF LAW

            1. The Respondent, Smith Masonry Contractors, Inc., was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.

            2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.

            3. The place of employment maintained by the Respondent at the National Fish Hatchery, Warm Springs, Indian Reservation, Oregon was inspected by an authorized employee of the Secretary

            4. The Respondent did not violate 29 CFR 1926.450(a)(10) as alleged in citation number one and in the complaint, and therefore was not in violation of section 5(a)(2) of the Act in this instance.

            5. The Respondent did not violate 29 CFR 1926.451(a)(13) as alleged in citation number two and in the complaint, and therefore was not in violation of section 5(a)(2) of the Act in this instance.

            6. The Respondent did not violate 29 CFR 1926.451(a)(4) as alleged in citation number three and in the complaint, and therefore was not in violation of section 5(a)(2) of the Act in this instance.

            7. The Respondent was not in compliance with 29 CFR 1926.250(b)(5) as alleged in citation number four and in the complaint, and thereby violated section 5(a)(2) of the Act.

            8. The violation of 29 CFR 1926.250(b)(5) was a repeated nonserious violation within the meaning of sections 17(a) and 17(c) of the Act. In accordance with the provisions of section 17(j) of the Act, an appropriate civil penalty for this violation is $50.

ORDER

            Based on the foregoing findings of fact and conclusions of law, it is ORDERED:

            1. That citation number one issued to the Respondent on June 9, 1975 be, and is hereby vacated.

            2. That citation number two issued to the Respondent on June 9, 1975 be, and is hereby vacated.

            3. That citation number three issued to the Respondent on June 9, 1975 be, and is hereby vacated.

            4. That citation number four issued to the Respondent on June 9, 1975 be, and is hereby affirmed.

            5. That the notification of proposed penalties issued to the Respondent on June 9, 1975 be, and is hereby vacated.

            6. That a civil penalty of $50 be, and is hereby assessed for the repeated nonserious violation of citation number four.

THOMAS J. DONEGAN

Judge

DATED: May 19, 1976

 

Seattle, Washington

 


[1] The Judge also vacated citations that alleged a failure to comply with the standards at § 1926.450(a)(10) and § 1926.451(a)(13), and affirmed a citation for failure to comply with § 1926.250(b)(5). Neither party excepted to the Judge’s disposition of these citations, and they are not before us on review.

[2] § 1926.451 Scaffolding.

(a) General requirements.

(4) 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 paragraph (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.

[3] Former Commissioner Moran also issued a direction for review which specified no issues.

[4] At the hearing, counsel for the Secretary stated that the citation was based on conditions as they existed on the day of the inspection and that there was no allegation that § 1926.451(a)(4) was violated before that day.

[5] Mortar boards are objects that hold the mortar before its application on the bricks.

[6] When the Respondent objected to the inspector’s testimony concerning the condition and use of the scaffolding on May 23, 1975, the Complainant reaffirmed the date of the alleged violations as set forth in the citations and complaint, and asserted that the violations occurred on May 28, 1975, the date of the inspection, and not on any other date (T. 91–93).

[7] Examples of some of the factors that are considered in determining the degree of gravity of the violation are; number of employees exposed to risk of injury; duration of employee exposure; precautions taken against injury, if any; and degree of probability of occurrence of an injury.

[8] Section 17(a) 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.’

[9] See Secretary v. Smith Masonry Contractors, Inc., 6 OSAHRC 385 (1974).

[10] Section 17(j) 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.’