SECRETARY OF LABOR,
Complainant,

v.

J. L. FOTI CONSTRUCTION COMPANY,
Respondent.

OSHRC Docket No. 83-1126

_DECISION_

Before: BUCKLEY, Chairman; WALL, Commissioner.
BY THE COMMISSION:

This case is here on remand from the decision of the United States Court
of Appeals for the Sixth Circuit in J.L. Foti Construction Co. v. OSHRC,
No. 85-3013 (6th Cir. May 19, 1986)(unpublished decision). In accordance
with that decision, and with respect to the Secretary of Labor's
allegation that J.L. Foti Construction Company violated 29 C.F.R. §
1926.451(a)(2) by using concrete blocks to support a scaffold, this case
is remanded to Administrative Law Judge James D. Burroughs "for a
factual finding on the issue of the stability of the scaffold's
[concrete block] support." J.L. Foti, slip op. at 13.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: October 16, 1986

------------------------------------------------------------------------

SECRETARY OF LABOR,
Complainant,

v.

J. L. FOTI CONSTRUCTION COMPANY, INC.,
Respondent.

OSHRC Docket No. 83-1126

APPEARANCES:
Gary A. Boncella, Esquire, Office of the Solicitor, U. S.
Department of Labor, Cleveland, Ohio, on behalf of complainant.

Louis H. Orkin, Esquire, Weiner, Orkin, Abbate & Suit Company,
L.P.A., Beachwood, Ohio, on behalf of respondent.

_DECISION AND ORDER_

Burroughs, Judge: Respondent, J. L. Foti Construction, Inc. ("Foti"), a
masonry contractor, contests a serious and "other" citations issued to
it on October 13, 1983. The citations were issued as a result of an
inspection conducted by OSHA Compliance Officer Eugene E. Heard
("Heard") on September 29, 1983, and October 4, 1983. The inspection was
commenced after Heard received a telephone call complaining that an
unsafe scaffold, approximately 40 feet high, was in danger of falling.
The caller did not identify himself or the employer involved but did
identify the general area of the work location.

The serious citation alleges a violation of three separate items. Item
one alleges that the "West Brick Buggy" failed to comply with 29 C.F.R.
§ 1926.300(b)(2), which requires that moving machine parts exposed to
contact by employees be guarded. Item two alleges that the scaffold at
the west wall of the "Chem-Feed Building" failed to comply with 29
C.F.R. § 1926.451(a)(2), which requires that no unstable objects be used
to support a scaffold. Item three alleges that the scaffold at the west
wall of the "Chem-Feed Building" failed to comply with 29 C.F.R. §
1926.451(d)(10), which requires guardrails on all open sides of
scaffolds more than ten feet above adjoining ground or floor. A total
penalty of $540 was proposed for the alleged violations.

The "other" citation alleged a violation of two separate items. At the
commencement of the hearing, counsel for the Secretary moved to vacate
item two, which alleged a violation of 29 C.F.R. § 1926.451(a)(2). The
motion was granted (Tr. 4-7). The remaining "other" item in contest
involves the allegation that Foti failed to post the required OSHA
notice in violation of 29 C.F.R. § 1903.2(a)(1).

THE INSPECTION DID NOT VIOLATE FOTI'S CONSTITUTIONAL RIGHTS TO PRIVACY,
THE FOURTH AMENDMENT TO THE
_U. S. CONSTITUTION OR ITS CIVIL RIGHTS
_
Foti argues that the inspection by Heard violated its constitutional
rights to an expectation of privacy, the Fourth Amendment to the United
States Constitution and its civil rights.  It is undisputed that an
employer may insist upon a warrant before entry is made upon its
premises by an OSHA compliance officer.  _Marshall v. Barlow's, Inc_.,
436 U. S. 307, 98 S. Ct. 1816 (1978).  At the same time, a search
conducted pursuant to a voluntarily obtained consent comes within an
exception to the general warrant requirement of the fourth amendment and
is wholly valid. Schneckloth v. Bustamonte, 412 U. S. 218, 93 S. Ct.
2041 (1973).  In this case, Foti's argument must be rejected since there
is no evidence that consent was not obtained from the general contractor
and no evidence that Foti's foreman at the site objected to the
inspection.   There has also been no showing that Foti, as a
subcontractor, had a reasonable expectancy of privacy at the site.

Heard arrived at the site around 2:30 p.m. on September 29, 1983. Upon
his arrival, he located the trailer of the general contractor, Walbridge
Aldinger, and presented his credentials to Mr. De Fauw, superintendent
for the general contractor. Heard explained the purpose of his visit and
then proceeded to conduct an inspection. During his walk around the site
on September 29, 1983, Heard met Robert Hill, Foti's bricklayer foreman
at the site. He presented his credentials to Hill, explained the purpose
of his visit, and offered him an opportunity to accompany him on the
inspection (Tr. 12-15). According to Heard, neither De Fauw nor Hill
objected to the inspection (Tr. 15). Hill testified that he did not
remember being invited to participate in the inspection but did not deny
he was given the opportunity (Tr. 130).

Hill acknowledged that Heard met him during the inspection but had no
recollection of Heard saying anything that would constitute an opening
conference (Tr. 129-130). He made no statements that disputed Heard's
testimony that De Fauw and Hill raised no objection to the inspection,
and Foti does not argue that permission to enter and inspect the site
was denied by the job superintendent or Hill. Foti does argue that Heard
"at no time testified that he had consent to enter the site."

Heard did not dispute Foti's assertion that express permission was not
obtained from Hill to conduct an inspection of the Foti work areas at
the site (Tr. 54). This does not mean that he did not have permission to
be on the construction site. Heard testified that upon arrival at the
site, he presented his credentials to De Fauw, explained why he was at
the site and received a list of subcontractors from De Fauw (Tr. 13). He
further testified that no employee of the general contractor or Foti
objected to the inspection (Tr. 15). Since no objection was raised
against Heard conducting an inspection, there was at least an implied
consent on the part of the general contractor and Foti. Cooperation by
the general contractor is reflected in Hill's testimony that, when he
observed Heard, he was walking with the job superintendent and the
carpenter steward (Tr. 129).

In administrative inspections, the courts have adopted a standard of
consent that is less stringent than that required for criminal searches.
In United States v. Thriftmart, Inc., 429 F.2d 1006, 1010 (9th Cir.
1970), the court in ruling on the validity of an administrative
inspection stated:

In conclusion, we hold that in the context of the exclusionary rule a
warrantless inspection search of business premises is reasonable when
entry is gained not by force or misrepresentation, but is, with
knowledge of its purpose, afforded by manifestation of assent.

A compliance officer does not have to inform the employer of the right
to refuse a warrantless inspection. Daniel International Corp., 81
OSAHRC 57/A2, 9 BNA OSHC 1980, 1981 CCH OSHD ¶ 25,492 (No. 15690, 1981)
rev'd on other grounds, 683 F.2d 361 (11th Cir. 1982). Heard entered the
site, identified himself to the job superintendent, explained the
purpose of his visit, asked for a list of subcontractors and proceeded
to conduct the inspection. When he encountered Hill on the site, he
again presented his credentials and explained the purpose of his visit.
The failure to object, at the least, constituted implied consent to the
inspection. The consent need not be express and the failure to object to
a known search constitutes consent. There is no evidence of
intimidation, coercion or misrepresentation that would invalidate the
consent in this case. The failure of Hill to object to the inspection
resulted in an implied consent to the inspection; therefore, Barlow's,
Inc., does not affect the validity of the inspection.

Assuming arguendo that there was no implied consent on the part of Hill,
it would make no difference in the result. Foti had no expectation of
privacy. The restrictions upon searches and seizures were designed to
protect against official invasion of privacy and the security of
property. Jones v. United States, 362 U. S. 257, 80 S.Ct. 725 (1960).
Since Foti seeks to challenge the legality of the inspection (construed
as an illegal search by Foti), it must establish that it was the victim
of an invasion of privacy. Elbel v. United States, 364 F.2d 127 (10th
Cir. 1966). Since a joint occupant assumes the risk of his co-occupant
exposing their common private areas to such a search, there is no
reasonable expectation of privacy under such circumstances. United
States v. Sumlin, 567 F.2d 684 (6th Cir. 1977). The general contractor
had authority over the inspected premises. Foti was a subcontractor
working under the general contractor. The consent of the general
contractor was voluntary and constituted valid consent to the presence
of the compliance officer where the work of Foti's employees could be
viewed.

A general contractor may consent to the inspection of a common work site
where a subcontractor is working. Havens Steel Co., 78 OSAHRC 53/C11, 6
BNA OSHC 1740, 1978 CCH OSHD ¶ 22,875 (No. 15538, 1978). The job
superintendent for the general contractor exercised control over the
premises and his consent and participation in the inspection with Heard
was valid and binding against Foti. The inspection was constitutionally
permissible.

_ALLEGED VIOLATION OF 29 C.F.R. § 1926.300(b)(2)._

The Secretary alleged that Foti violated 29 C.F.R. § 1926.300(b)(2)
[[1/]] by failing to adequately guard a belt and pulley and chain and
sprocket on a West Brick Buggy used to carry and lift brick in the
Chem-Feed building. The buggy has been used by Foti since its inception
in 1963 and is in wide use by masonry contractors in the Cleveland area.
The chain and sprocket was guarded on both sides except for a small area
at the top. The belt and pulley was unguarded but located in an area of
the motor assembly that provided some protection.

The standard requires guarding where the chain and sprocket and belt and
pulley "are exposed to contact by employees or otherwise create a
hazard." Foti submits that the Secretary has failed to meet the burden
of proof imposed by the standard. It argues that employees were not
exposed to the partially guarded moving parts of the buggy and that no
hazard was created. The Secretary contends that the proximity of the
hands to the moving parts and the fact that the buggy can be operated
with one hand establish exposure to a hazard.

The left handle of the buggy is 14 inches from the exposed upper chain
and sprocket when the handle bar is in a neutral position. There is a
distance of 12 inches from the left handle to the pulley when the handle
bar is in neutral position. The right handle would be a greater distance
from the moving parts. The hydraulic control level is 11 inches from the
chain and sprocket and 10 inches from the belt and pulley. The Secretary
argues that the closeness of the left hand to the moving parts
establishes a hazard, citing F. H. Lawson Co., 80 OSAHRC 19/A14, 8 BNA
OSHC 1063, 1980 CCH OSHD ¶ 24,277 (No. 12883, 1980), appeal dismissed,
February 9, 1981 (6th Cir., No. 80-3277).

The Secretary makes much of the fact that the buggy may be operated with
one hand. In his view, this would leave one hand in an exposed position.
While the bar can be raised or lowered with one hand, it would have to
be moved with the left handle if the buggy is to be moved. The throttle
is on the left handle. If the left hand is used to raise or lower the
bar, the right hand would be located too far away to be exposed to the
moving parts. The operator would have to deliberately place his right
hand in the moving parts in order to have his hand injured. The chain
and sprocket only turn when the buggy is moving. Release of the handle
automatically stops the turn of the chain and sprocket. The left hand
would be on the handle at anytime the buggy is moving. As a practical
matter, it is doubtful the buggy would ever be operated with one hand
since it is steered by the handles. It would be awkward operating and
trying to steer with the left hand while a pallet of brick,
approximately 3,500 pounds, is being moved by the buggy.

The belt and pulley is operated when necessary to maintain hydraulic
pressure for the lift mechanism of the buggy. The location of the belt
and pulley within the motor assembly provides sufficient protection to
the operator. In order to reach the belt and pulley, there would have to
be some deliberate attempt to do so by the operator. The location
prevents any reasonable accidental contact.

While not determinative of the issue, the past operating record of the
buggy shows that injuries have not been a problem. Hill testified that
he had approximately 20 years' experience with the buggy (Tr. 132).
During this period of time, he has known of no injuries resulting from
the belt drive or sprocket and chain (Tr. 134). John A. Fees, safety and
education director for the Construction Employer's Association,
testified that he had been familiar with the buggy for approximately 30
years and was unaware of anyone being injured while operating them (Tr.
157). J. L. Foti testified that he had used the same make of buggy since
1960 and was aware of their history (Tr. 173). During the time his
company has used the buggies, it has had no injuries from their use.
Foti was unaware of any injuries resulting from their use by other
contractors (Tr. 173- 174). The alleged violation is vacated.

_ALLEGED VIOLATION OF 29 C.F.R. § 1926.451(a)(2)_

The Secretary submits that Foti violated 29 C.F.R. § 1926.451(a)(2)
[[2/]] by using concrete blocks to anchor one end of the scaffold at the
Chem-Feed building. The southwestern leg of the scaffold located at the
west wall of the building was supported by a 2-x-10 inch board which
rested on concrete blocks along the brick wall. The end of the board
extended beyond the legs of the scaffold and rested on an I-beam. The I-
beam. The I-beam rested on an interlocked stack of concrete block
approximately six feet in height. The I-beam ran at an angle to the
concrete block and 2-x-10 board. The leg of the scaffold farthest from
the brick wall rested on the I-beam. This method of support was pursued
by employees of Foti because the end of the scaffold was within inches
of an open excavation and, in the event of a rain, there was fear the
excavation wall would collapse.

Foti argues that there was nothing unstable about the manner in which
the scaffold was erected. It points out that Heard had no idea of the
load-bearing capacity of the concrete blocks and that he did not in any
way test the scaffold for stability. Heard testified that in his opinion
the scaffold was unstable. Foti disputes Heard's opinion and refers to
witnesses on its behalf that concluded the scaffold resting on the
concrete blocks was stable. The standard prohibits the use of concrete
blocks; consequently, it is not necessary to weigh the differences of
opinion among the witnesses. In Constructora Maza, Inc., 77 OSAHRC
213/B9, 6 BNA OSHC 1208, 1977-78 CCH OSHD ¶ 22,421 (No. 12434, 1977),
the Commission rejected the argument that a scaffold supported on
concrete blocks was safe. The Commission noted a difference between the
gravity of a violation and the presence of the violative conditions. The
Commission concluded that 29 C.F.R. § 1926.451(a)(2) was mandatory and
that concrete blocks are specifically prohibited from being used to
support scaffolds or planks. As in Constructora Maza, Inc., there is no
dispute over the fact that Foti's scaffold was supported by concrete
block. The violation is affirmed.

Foti argues that the "use of concrete block to support a scaffold does
not in and of itself establish a per se violation unless the block is
used in an unstable manner," relying on the rationale of Judge Cecil L.
Cutler in Foti Construction Co., Inc., 1977-78 CCH OSHD ¶ 22,346 (Nos.
76-4429, 76- 5049), reviewed by Commission on other issues, 86 OSAHRC
36/C10, 8 BNA OSHC 1281, 1980 CCH OSHD ¶ 24,421 (1980). One of the
issues in that case involved an alleged violation of 29 C.F.R. §
1926.451(a)(2) for using concrete blocks under planks upon which a
scaffold was supported. The facts disclosed that the planking rested on
angle iron inserted three inches in the wall. The angle iron was
supported by concrete blocks. Judge Cutler determined that "[t]he
purpose of the concrete blocks was not for support but to take some of
the spring out of the angle iron." The specific finding by Judge Cutler
that the concrete blocks were not intended as support distinguishes that
case from the present facts.

_ALLEGED VIOLATION OF 29 C.F.R. § 1926.451(d)(10)_

The Secretary alleged that Foti violated 29 C.F.R. § 1926.451(d)(10)
[[3/]] by failing to install guardrails on the southern end of the
scaffold located on the west side of the Chem-Feed building and for
improperly locating the midrails where guardrails were installed. There
is no dispute over the fact that the guardrail at the southern end of
the scaffold was missing. The missing rail is clearly reflected in the
photograph introduced as exhibit 6. Foti claims that it was in the
process of removing the guardrails and had, just prior to the
inspection, removed the guardrail at the south end.

Hill, in looking at a photograph of the scaffold, acknowledged that
three of Foti's employees were on the scaffold but testified that the
men were getting ready to leave the area because they had finished
building the wall as high as they could from that scaffold (Tr.
138-139). According to Hill, the end guardrail had been removed in the
dismantling process so that another tier of scaffold could be erected
(Tr. 140-141, 150). While Heard cited Foti for not having a guardrail on
the end of the scaffold, he testified that he did not know if the
guardrails were being removed so that another tier of scaffold could be
erected (Tr. 100). There is no evidence to dispute Hill's claim that the
guardrails were being dismantled.

The scaffold was erected to be used in building the brick wall. At the
time of the inspection, there was no evidence of any brick on the south
end of the scaffold (none is reflected in exhibit 6). Heard testified
that he observed pallets of brick being loaded on the north end of the
scaffold, but the location of the brick was a good distance from the
south end of the scaffold.[[4/]] One of the two employees in the
photograph introduced as exhibit 6 appears to have a piece of 2x4 in his
hand, which would be consistent with the testimony of Hill that they
were dismantling the guardrail at that end of the scaffold in order to
erect another tier of scaffold. It is clear from the photograph that
they are not laying brick.

The evidence supports Foti's argument that the employees were in the
process of dismantling the guardrails at the time of the inspection. It
was necessary to remove the guardrails prior to erecting another tier of
scaffold. Where it is necessary to remove guardrails to perform specific
work, the Commission has held that the duty to comply with the guardrail
requirement is suspended. cf. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4
BNA OSHC 1214, 1975-76 CCH OSHD ¶ 20,682 (No. 7377, 1976);
Dic-Underhill, A Joint Venture, 75 OSAHRC 35/F10, 2 BNA OSHC 1651, 1974-
75 CCH OSHD ¶ 19,328 (No. 2232, 1975). The alleged violation as to the
absence of guardrails is vacated.

The Secretary further alleged that the midrail was improperly installed
on the scaffold. The standard, 29 C.F.R. § 1926.451(d)(10), requires
guardrails to be approximately 42 inches high and that a midrail of
1-x-6-inch lumber (or other material providing equivalent protection) be
installed. A midrail was installed, but it was not properly aligned.
Exhibit 6 reflects that the top rail and midrail meet at the third
support bracket from the right. Foti argues that Heard at no time
measured the distance between the midrails and the floor of the scaffold
and that his testimony that "the midrails were not placed 'midway'
between the top rail and the floor of the scaffold was based not upon
exact measurement but rather upon mere speculation from ground-based
observation."

The photograph of the scaffold, exhibit 6, clearly reflects that it was
unnecessary to measure the midrail to conclude that it was not placed
midway between the top rail and the floor. At the third post, the
midrail is within one board width of the top rail. Since 2-x-4-inch
boards were used for guardrails and midrails, it is clear that the top
of the midrail at that point was only one 4- inch board width below the
guardrail. Hill testified that he was aware that the guardrails were to
be placed at a height of 42 inches and the midrail at 21 inches but
added that "we don't always hit through an ant's eyelash for 22 and 21"
(Tr. 142). A midrail located one 4-inch board from the guardrail is
positioned too far from the midpoint to conclude there was compliance
with the midrail requirement. A violation for improperly located
midrails has been established.

_ALLEGED VIOLATION OF 29 C.F.R. § 1903.2(a)(1)_

The Secretary alleges that Foti violated 29 C.F.R. § 1903.2(a)(1) [[5/]]
by failing to post a required OSHA notice informing employees of the
protections and obligations provided by the Act. The standard requires
that the notice be posted at each establishment. J. L. Foti, president
of J. L. Foti Construction Company, Inc., testified that he had a stack
of the required OSHA notices at his office and that it was company
policy that all trailers sent to a jobsite have a number of things
posted, including the required notice (Tr. 183). Foti argues that Heard
made only a cursory inspection to determine whether the notice was
posted and that his inspection was insufficient to establish the absence
of the notice.

During the course of his inspection, Heard stuck his head inside Foti's
trailer at the site on September 29, 1983, and October 4, 1983, and did
not see an OSHA notice. He did not enter the trailer since no one was
present in the trailer. He conceded that he did not inform Hill that
there was no notice inside the trailer (Tr. 57-59). Foti argues that it
was physically impossible for Heard to ascertain that the notice posted.
It is argued that Heard had a view of only three walls of the interior
of the trailer and it is suggested, but not established by facts of
record, that the notice could have been posted on the wall which
contained the door opening.

There is no evidence to conclude that Heard did not have an adequate
view of the interior of the trailer. The suggestion that he may not have
seen the wall which contained the door opening is speculation and not
established fact. More damaging to Foti's case is the fact that it
offered no evidence to establish that the notice was posted. Hill never
stated that the notice was posted. He testified (Tr. 147):

Q. Does Foti have them [OSHA notices] around at various places?

A. He has had them and I don't know that we didn't have one. It isn't
something I run in to look to see if I have it.

It is obvious that the notice did not carry a high priority in Hill's
job details. His testimony in no way disputes Heard's statement that the
notice was not posted. The violation had been established by the
preponderance of the evidence.

_NATURE OF VIOLATIONS_

The violations of 29 C.F.R. § 1926.451(a)(2) and 29 C.F.R. §
1926.451(d)(10) were classified as serious within the meaning of section
17(k) of the Act.[[6/]] This section requires the following two findings
be made prior to determining that a violation constitutes a serious
violation: (1) substantial probability that death or serious physical
harm could result from the violation, and (2) that the employer knew or
with the exercise of reasonable diligence could have known of the
presence of the violation. The evidence conclusively shows that Foti
knew of the conditions.

The working platform of the scaffold was approximately 14 feet in
height, except at the southern end. There was a 6-foot excavation at the
southern end and employees on that end of the scaffold were exposed to a
fall of approximately 20 feet. A fall from these heights would certainly
be expected to result in death or serious physical harm. The violations
were serious.

_DETERMINATION OF PENALTIES_

The last issue involves the determination of an appropriate penalty for
the violations. While the Secretary can propose a penalty, it is the
Review Commission in all contested cases that has the authority to
assess civil penalties for violations of the Act. The determination of
an appropriate penalty is within the discretion of the Review
Commission. Long Manufacturing Co. v. OSHRC, 554 F.2d 903 (8th Cir.
1977); Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir.
1978). In assessing penalties for violations of the Act, section 17(j)
(7) of the Act requires the Commission to consider the size of the
business of the employer, the gravity of the violation, the employer's
good faith, and the history of previous violations.

The scaffold was supported by concrete blocks. At the time of the
inspection, there were three employees on the scaffold. In the event the
scaffold had collapsed, the three employees would have fallen at least
14 feet. There was a good possibility that the two employees on the end
would have fallen into the excavated area, a distance of approximately
20 feet. There is no doubt that Foti, in good faith, believed the
scaffold was stable. A penalty of $180 is assessed for the violation of
29 C.F.R. § 1926.451(a)(2).

The midrails on the scaffold were improperly constructed, leaving an
area large enough for employees to fall through in the event they fell
along the edge of the scaffold. Three employees were exposed to the
hazardous condition. The amount of time the employees were on the
scaffold is unknown. A penalty of $50 is assessed for the improperly
aligned midrails.

_FINDINGS OF FACT_

1. J. L. Foti Construction Company, Inc. ("Foti"), is a masonry
contractor that generally employs 25 or fewer persons (Tr. 178). It has
been in business since 1963 (Tr. 169).

2. Foti was a subcontractor on the construction of a waste water
treatment plant located in Willoughby, Ohio. It had the contract for the
masonry work (Tr. 129, 170).

3. On September 29, 1983, Safety Specialist Eugene E. Heard received a
telephone call around 1:15 p.m. The caller advised him that unsafe
scaffolding was being used at a construction site across from the Lost
Nation Airport, Willoughby, Ohio. According to the caller, there was an
imminent danger of someone falling 40 feet (Tr. 9-10, 11, 53). The
caller did not indicate which employers were at the site (Tr. 11, 51-52).

4. Immediately after the call, Heard went to the Lost Nation Airport and
looked around to find out what construction was being performed. He
arrived at the airport around 2:30 p.m. (Tr. 12, 53). The work site
consisted of a water treatment plant with various buildings and
excavations (Tr. 12, 128-129).

5. Upon arriving at the site, Heard went to the general contractor's
field office, identified himself to the general superintendent and
indicated the purpose of his visit was to investigate the complaint
concerning unsafe scaffolding (Tr. 13, 53). He received a list of
contractors at the job from the job superintendent (Tr. 13).

6. Heard did not hold an opening conference with any employee of Foti at
the time of his discussion with the job superintendent. As he proceeded
with his inspection of the site on September 29, 1983, he met Robert
Hill, Foti's foreman. He presented his credentials to Hill (Tr. 14, 54,
128), and offered Hill an opportunity to accompany him on the
inspection[[8/]] (Tr. 15).

7. Heard had permission from the general contractor to conduct an
inspection but did not have an express consent from any employee of Foti
or any of the subcontractors (Tr. 54-55).

8. No one from the general contractor of Foti objected to the inspection
(Tr. 15).

9. Heard did not complete his inspection on September 29, 1983, and
returned on October 4, 1983. He did not have sufficient time on
September 29, 1983, to cover the complete site or talk to all the
subcontractors (Tr. 15, 58, 59).

10. When Heard returned on October 4, 1983, he reported to the job
superintendent for the general contractor (Tr. 60, 111, 113).

11. A closing conference was held by Heard with J.L. Foti, president of
Foti Construction, by telephone on October 12, 1983 (Tr. 41-42, 97-98).

12. On September 29, 1983, and October 4, 1983, Heard stuck his head
inside the Foti trailer at the site and did not see an OSHA notice
informing employees of the protections and obligations provided for in
the Act. He did not enter the trailer since no one was inside (Tr. 22,
40-41, 57- 59). Heard did not inform Hill that the OSHA poster was
issuing (Tr. 57- 58).

13. Foti had a stack of OSHA notices at its office. Company policy
requires that the notices be placed in any trailers sent to a work site
(Tr. 182-183).

14. A scaffold was located on the west side of the Chem-Feed building
(Ex. 5, 6; Tr. 20, 30). It was used by Foti's bricklayers in building
the brick wall at the west side of the building (Tr. 32, 38). Three
employees were on the scaffold (Ex. 6; Tr. 99-100, 138).

15. No guardrails were installed on the south end of the scaffold
located on the west side of the Chem-Feed building. Guardrails and
midrails along the side of the scaffold were composed of 2-inch by
4-inch boards. The guardrail and midrail were within one 2-x-4-inch
board of each other at the third post from the south end of the scaffold
(Ex. 6; Tr. 20, 40, 109-110).

16. Employees of Foti had been working off the scaffold platform. Three
employees were on the scaffold at the time of the inspection (Ex. 6; Tr.
99-100).

17. Foti's policy is to have guardrails erected (Tr. 141-142). Foti's
job foreman, Robert Hill, was aware that guardrails were to be erected
at a height of 42 inches and midrails were to be at 21 inches (Tr. 141-142).

18. The ground had been excavated for a depth of approximately six feet
within inches of the southern end of the scaffold (Ex. 5, 6; Tr. 143,
145, 180).

19. Since the south end of the scaffold was within inches of the wall of
the excavation, employees of Foti were concerned of an erosion or
collapse of the wall in the event of a rain (Tr. 180).

20. In order to protect the southern end of the scaffold against a
collapse, a stack of hollow concrete blocks, approximately six feet
high, was placed in the excavation in an effort to provide support for
the scaffold (Ex. 5, 6; Tr. 31, 94, 143, 144-145, 180-181). The blocks
were 8 inches by 16 inches (Tr. 142) and were resting on the concrete
footing in the excavation (Tr. 142-143, 152). The blocks were not
cemented but were stacked in an interlocking fashion (Ex. 5; Tr. 31-32,
98, 153).

21. An I-beam was placed under the southern leg of the scaffold away
from the wall and run diagonally so that the other end rested on the
stack of concrete blocks (Ex. 5; Tr. 31).

22. The last two legs of the southern end of the scaffold along the wall
rested on a 2-x-10-inch board which had been placed on concrete blocks
under the legs. The end of the board rested on the I-beam on the 6-foot
stack of concrete blocks (Ex. 5; Tr. 85, 153).

23. The board on the concrete blocks and the I-beam were used in an
effort to prevent the legs of the scaffold falling in the event the wall
of the excavation collapsed (Tr. 144-145).

24. The working surface of the scaffold was approximately 14 feet above
ground level except at the south end. As a result of the 6-foot
excavation, the south end of the scaffold was approximately 20 feet
above ground level (Ex. 5, 6; Tr. 32-33, 38, 39).

25. Foti owned and used a specially manufactured buggy to transport
brick at the construction site and elevate them to the scaffold (Ex. 1;
Tr. 22, 61, 132). The chain and sprocket on the buggy was guarded on
both sides except for a small area at the top. The belt and pulley was
unguarded except by its location (Ex. 2-4; Tr. 25).

26. The belt and pulley and chain and sprocket were the same as when the
buggies were purchased. No guarding of any kind was removed by Foti (Tr.
175-176).

27. The buggy has two handles connected by a bar so that when you lift
or push down on one handle the other follows in the same manner. The
left handle, as the operator faces the buggy, is the throttle. The
throttle is similar to that on a motorcycle. The right handle is a dead
handle. The buggy moves forward or backwards at walking speed by raising
and lowering the handles (Ex. 1-4; Tr. 26, 29, 68, 134, 148-149).

28. In order to operate the buggy, the operator must raise or lower the
handle bar. If the operator lets go of both handles, the buggy will
automatically stop (Tr. 21).

29. The chain and sprocket turn only when the buggy is moving. It does
not turn when the handle bar is in the neutral position (Tr. 29, 71).
The belt and pulley operate when necessary to maintain hydraulic
pressure for the lift mechanism (Tr. 29).

30. The buggy can be operated by one hand (Tr. 71-72).

31. A lever is located slightly below and toward the center of the
handle bar (Ex. 3; Tr. 26, 28). The lever controls the hydraulic valves
which in turn control the raising and lowering of the load upon the
forks (Tr. 26).

32. Heard measured a distance of 14 inches from the lift handle bar to
the chain and sprocket when the handle bar was in a neutral position,
i.e., the handle bar was neither raised or lowered (Tr. 27). When the
handle is in a raised position, there is a distance of 18 inches from
the edge of the closest handle to the open sprocket and chain (Ex. A;
Tr. 70).

33. Heard measured a distance of 12 inches from the left handle bar to
the belt and pulley when the handle bar was in a neutral position (Tr. 27).

34. Heard measured a distance of 11 inches from the lever to the
sprocket and chain drive. He measured a distance of 10 inches from the
lever to the belt and pulley (Tr. 27).

35. The buggy is used primarily on concrete floors inside the interior
of a building (Tr. 133-134, 172).

36. Foti has used the buggies since its inception in 1963. During this
time, no injuries have resulted from the use of the buggies (Tr. 173- 174).

_CONCLUSIONS OF LAW_

1. Foti, at all times material hereto, was engaged in a business
affecting commerce within the meaning of section 3(5) of the Act.

2. Foti, at all times material hereto, was subject to the requirements
of the Act and the standards promulgated thereunder. The Commission has
jurisdiction of the parties and of the subject matter herein.

3. Foti was not in violation of 29 C.F.R. § 1926.300(b)(2) since the
moving parts of the West brick buggy were not exposed to contact by the
operator and did not otherwise create a hazard.

4. Foti was in violation of 29 C.F.R. § 1926.451(3)(2) since concrete
blocks were used to support the scaffold at the west wall of the
Chem-Feed building; a penalty of $180 is assessed for the violation.

5. Foti was in violation of 29 C.F.R. § 1926.451(d)(10) for having
improperly aligned midrails on the scaffold at the west wall of the
Chem-Feed building. It was not in violation of the standard for having a
missing guardrail since the rail had been removed as part of the
dismantling process to erect another tier of scaffold. A penalty of $50
is assessed for the midrail violation.

6. Foti was in violation of 29 C.F.R. § 1903.2(a)(1) for failure to have
the OSHA notice posted in its field office trailer at the construction site.

_ORDER _

Based upon the foregoing findings of fact and conclusions of law it is

ORDERED: 1. That item one of the serious citation and the penalty
proposed for the alleged violation issued to Foti on October 13, 1983,
are vacated;

2. That item two of the serious citation issued to Foti on October 13,
1983, is affirmed and a penalty of $180 is assessed for the violation;

3. That item three of the serious citation Issued to Foti on October 13,
1983, is vacated as to the guardrails and affirmed for improperly spaced
midrails; a penalty of $50 is assessed for the midrail violation;

4. That item one of the "other" citation issued to Foti on October 13,
1983, is affirmed; and

5. That item two of the "other" citation issued to Foti on October 13,
1983, is vacated.

Dated this 4th day of October, 1984.

JAMES D. BURROUGHS
Judge

FOOTNOTES:

[[1/]] Section 1926.300(b)(2) of 29 C.F.R. provides:
Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels,
chains, or other reciprocating, rotating or moving parts of equipment
shall be guarded if such parts are exposed to contact by employees or
otherwise create a hazard. Guarding shall meet the requirements as set
forth in American National Standards Institute, B15.1-1953 (R1958),
Safety Code for Mechanical Power-Transmission Apparatus.

[[2/]] Section 1926.451(a)(2) C.F.R. provides:
The footing or anchorage for scaffolds shall be sound, rigid, and
capable of carrying the maximum intended load without settling or
displacement. Unstable objects such as barrels, boxes, loose brick, or
concrete blocks, shall be not used to support scaffolds or planks.

[[3/]] Section 1926.451(d)(10) of 29 C.F.R. provides:
Guardrails made of lumber, not less than 2x4 inches (or other material
providing equivalent protection), and approximately 42 inches high, with
a midrail of 1x6 inch lumber (or other material providing equivalent
protection), and toeboards, shall be installed at all open sides and
ends on all scaffolds more than 10 feet above the ground or floor.
Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be
installed in accordance with paragraph (a)(6) of this section.

[[4/]] The photograph introduced as exhibit 6 shows an employee wearing
a green shirt that is two scaffold lengths from the end. Heard testified
that the brick on the north end of the scaffold were 20 feet from the
employee wearing the green shirt (Tr. 104).

[[5/]] Section 29 C.F.R. § 1903.2(a)(1) provides:
Each employer shall post and keep posted a notice or notices to be
furnished by the Occupational Safety and Health Administration, U. S.
Department of Labor, informing employees of the protections and
obligations provided for in the Act, and that for assistance and
information, including copies of the Act and of specific safety and
health standards, employees should contact the employer or the nearest
office of the Department of Labor. Such notice or notices shall be
posted by the employer in each establishment in a conspicuous place or
places where notices to employees are customarily posted. Each employer
shall take steps to insure that such notices are not altered, defaced,
or covered by other material.

[[6/]] Section 17(k) of the Act states:
For purposes of this section, a serious violation shall be deemed to
exist in a place of employment if there is a substantial probability
that death or serious physical harm could result from a condition which
exists, or from one or more practices, means, methods, operations, or
processes which have been adopted or are in use, in such place of
employment unless the employer did not, and could not with the exercise
of reasonable diligence, know of the presence of the violation.

[[7/]] 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.

[[8/]] Hill testified that he did not remember being invited to walk
around the site, but he did not deny that he might have been given the
opportunity (Tr. 130).