“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-5271 AUTOMATIC SPRINKLER CORPORATION OF AMERICA, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 30, 1979DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Theprincipal issue presented by this case is whether the standard that requiresguardrails on manually propelled mobile scaffolds that are ?more than 10 feetabove the ground or floor?[1] applies to a scaffold,used by Automatic Sprinkler, which measured only 6 ? feet from its base to itsworking platform, but from which there was a potential fall distance of 12 ? to14 ? feet to adjacent floor levels. Administrative Law Judge Seymour Fier foundthe standard applicable, affirmed the citation for repeat serious violation,and assessed a penalty of $1000. Chairman Cleary directed that the judge?sdecision be reviewed by the Commission pursuant to the Occupational Safety andHealth Act of 1970[2],? 12(j), 29 U.S.C. ? 661(i). We reduce the penalty to $750, but otherwiseaffirm the judge?s decision.??????????? Fiveof Automatic Sprinkler?s employees were in the process of installing asprinkler system in a building under construction in Harrison, New York, whenthe worksite was inspected by compliance officer John Tomich of theOccupational Safety and Health Administration (OSHA). Tomich was escorted by arepresentative of the general contractor to the auditorium level of thebuilding, where Automatic Sprinkler was working. On arriving at the auditoriumlevel, Tomich saw Automatic Sprinkler employee Carlo Masci standing on anunguarded scaffold straightening a piece of pipe that had already beeninstalled overhead. The scaffold platform was only 6 ? feet above the floor onwhich the scaffold was standing. However, the scaffold was situated in thecorner of the auditorium floor, around the perimeter of which were concretewalkways several feet below the level of the floor. Two sides of the scaffoldparalleled the two edges of the floor forming the corner. One side was two feetfrom one edge and the second side was four inches from the other edge. Thewalkway was six feet below the floor edge on one side and eight feet below iton the other side. Thus, if an employee working on the scaffold platform fellfrom either of two sides of the platform, he would fall to the concretewalkway, a fall of 12 ? feet or 14 ? feet, depending on the side. The scaffoldwas not equipped with a top rail, midrail, or toeboard, and Masci was not usinga safety belt.??????????? AlthoughAutomatic Sprinkler?s employees had been working in that general area of thebuilding for about a week prior to the inspection, Masci had not been workingin the location at which Tomich observed him until five or ten minutes beforeTomich?s arrival. Shortly before Tomich arrived, Masci had walked past thatarea, noticed that a pipe was out of place, and, he stated, as a ?spontaneousmovement? proceeded to fix the pipe. In order to do this, he moved the scaffoldabout ten feet to place it under the pipe. Masci testified that foremanHajkowski had previously told him more than once that scaffolding ten feet orhigher required guardrails and that, if guardrails could not be used, he mustuse a safety belt.??????????? Following? 1926.451 Scaffolding the inspection, Automatic Sprinkler was cited for asecond repeat[3]serious violation of 29 C.F.R. ? 1926.451(e)(10). The standard at issueconcerns manually propelled mobile scaffolds and provides as follows:?1926.451 Scaffolding.(e) Manually propelled mobile scaffolds.(10) Guardrails made of lumber, not lessthan 2 x 4 inches (or other material providing equivalent protection),approximately 42 inches high, with a midrail, of 1 x 6 inch lumber (or othermaterial providing equivalent protection), and toeboards, shall be installed atall open sides and ends on all scaffolds more than 10 feet above the ground orfloor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall beinstalled in accordance with paragraph (a)(6) of this section.???????????? Thecitation itself stated:Standard guardrails and toeboards were notinstalled at all open sides and ends on manually propelled mobile scaffold(s)more than 10 feet above the ground or floor:(a) Auditorium?Grade level by Column B 13 Employeeobserved working at the scaffold platform edge where there was a drop ofbetween 12 and 14 feet above the concrete floor and no protection afforded theemployee.???????????? Apenalty of $3,600 was proposed.??????????? JudgeFier affirmed the citation. He rejected Automatic Sprinkler?s argument that thestandard only applied if the distance between the scaffold platform and thesurface on which the scaffold stood exceeded ten feet. Instead, following theCommission?s decision in Julius Nasso Concrete Corp., 77 OSAHRC 45\/C6, 5BNA OSHC 1235, 1977?78 CCH OSHD ? 21,720 (No. 7542, 1977), appeal dismissed,No. 77?4107 (2d Cir. Aug. 16, 1977), he held that the relevant distance was thedistance an employee would fall from the scaffold platform. Additionally, hefound the violation to be repeated but rejected the Secretary?scharacterization of the violation as ?second repeat?, as only one of AutomaticSprinkler?s two previous citations for violation of the cited standard was afinal order. Since the violation represented the company?s second, but notthird, violation of the cited standard, the employee?s exposure to the hazardwas for a short duration, and the exposure to a fall of more than ten feetexisted on only two sides of the scaffold, Judge Fier imposed a $1000 penaltyinstead of the proposed $3600 penalty.??????????? Onreview, Automatic Sprinkler renews its argument that the standard isinapplicable to the scaffold in question because the scaffold was six feet highand the standard concerns only scaffolds more than ten feet in height. Thecompany contends that it is entitled to rely on the specific provisions of thestandard, and cites General Supply Co., 77 OSAHRC 16\/A2, 4 BNA OSHC2039, 1976?77 CCH OSHD ? 21,503 (No. 11752, 1977), appeal dismissed, No.77?1614 (5th Cir. June 22, 1977), essentially for the proposition that thestandard was not intended to apply to scaffolds six feet in height. AutomaticSprinkler also relies on Western Waterproofing Co., 77 OSAHRC 56\/D2,1975?76 CCH OSHD ?20, 646 (No. 14237, 1976) (ALJ), reversed in part on othergrounds, 77 OSAHRC 56\/C4, 5 BNA OSHC 1284, 1977?78 CCH OSHD ? 21,750(1977), in which Judge James D. Burroughs held a similar scaffold standardinapplicable to a scaffold five feet in height even though one side of thescaffold was 39 inches from a roof edge which was 46 feet above the ground.Automatic Sprinkler also contends that the interpretation of the standardadopted by Judge Fier renders the standard unconstitutionally vague.??????????? Weagree with Judge Fier that Automatic Sprinkler violated the cited standard byfailing to guard a scaffold that was ?more than 10 feet above the ground orfloor.? The obvious purpose of the standard is to protect employees exposed tothe hazard of falling more than 10 feet from a scaffold platform. It would beinconsistent with this purpose to hold the relevant distance to be that fromthe scaffold platform to the surface on which the scaffold stands if a personfalling from the scaffold would fall a greater distance. See Julius NassoConcrete Corp., supra.??????????? Contraryto Automatic Sprinkler?s contention, this interpretation does not render thestandard impermissibly vague. When challenged for vagueness, a regulationadopted pursuant to remedial legislation must be examined in light of theconduct to which it is applied. United States v. National Dairy ProductsCorp., 372 U.S. 29, 36 (1963); Brennan v. OSHRC (Santa Fe TrailTransportation Co.), 505 F.2d 869 (10th Cir. 1974). Here, a reasonableemployer reading the standard in light of its purpose of protecting employeeswould readily understand that the standard seeks to protect employees fromfalls greater than ten feet. Thus, although the phrase ?more than 10 feet abovethe ground or floor? might appear ambiguous if the standard is read in avacuum, the ambiguity, along with any possible vagueness argument, disappearswhen the purpose of the standard is considered.[4]??????????? Ourdecision in General Supply Co., supra, does not support AutomaticSprinkler?s argument that the 10 foot distance should be measured from thesurface on which the scaffold rests. In General Supply, both the height of theworking surface of the scaffold and the potential fall distance were 9 feet.The secretary did not contend that the scaffold violated ?\u00a01926.451(e)(10),the standard at issue here, but instead argued that another standard requiringguardrails on certain scaffolds 4 to 10 feet in height was violated. TheCommission held that since ? 1926.451(e)(10) was the more specificallyapplicable standard, the employer could not be found in violation of the moregeneral standard. Thus, General Supply simply held that ?\u00a01926.451(e)(10)contains exclusive requirements governing perimeter protection on mobilescaffolds. If did not address the question of whether the phrase ?more than 10feet above the ground or floor? refers to the height of the scaffold or thepotential fall distance.??????????? AutomaticSprinkler?s reliance on Western Waterproofing Co., supra, is alsomisplaced. First, the portion of the judge?s decision on which AutomaticSprinkler relies was not reviewed by the Commission, and is therefore notbinding as precedent. Leone Construction Co., 76 OSAHRC 12\/E6, 3 BNAOSHC 1979, 1975?76 CCH OSHD ? 20,387 (No. 4090, 1976), appeal withdrawn,No. 76?4070 (2d Cir. May 17, 1976). But in any event, Judge Burroughs? decisiondoes not support Automatic Sprinkler?s argument. In Western Waterproofing,a five-foot high scaffold was erected around a chimney on a roof 46 feet abovethe ground. The scaffold on the side of the chimney toward the exterior of thebuilding was 39 inches from the roof?s edge, but the employee on the scaffoldwas working on the other side of the chimney, toward the interior of thebuilding. Thus, if the employee fell from the scaffold, he would fall only tothe roof, not off the edge of the roof. In holding that the scaffold did notrequire a guardrail because the working platform was less than 10 feet abovethe roof, the judge explicitly noted that the employee would have no occasionto work on the side of the scaffold closest to the edge of the roof. Thus, inholding that the scaffold did not require a guardrail, Judge Burroughs reliedon the fact that there was no exposure to a fall of more than 10 feet, and hisdecision is consistent with our holding in this case.??????????? Weturn now to the several remaining matters argued on review by AutomaticSprinkler. Automatic Sprinkler argues that Masci?s actions in moving thescaffold and mounting it to adjust the pipe were ?totally spontaneous.?Although the thrust of the argument is not entirely clear, Automatic Sprinklerappears to be arguing that it should not be held responsible because it did notknow that the scaffold would be used in a situation where the fall distanceexceeded the height of the scaffold, particularly since the scaffold was beingused on a level below the ground level of the building.??????????? Weconclude, however, that Automatic Sprinkler could have known of the violativecondition with the exercise of reasonable diligence. An employer has a dutyunder the Act to anticipate the hazards to which its employees may be exposedand to take the steps necessary to prevent such exposure. Southwestern BellTelephone Co., 79 OSAHRC 4\/G4, 7 BNA OSHC 1058, 1979 CCH OSHD ? 23, 278(No. 15841, 1979). Automatic Sprinkler provided the scaffold for its employeesto use on the auditorium level, and should have foreseen the uses to which itcould be put and the hazards that could arise from its use there. As AutomaticSprinkler?s task was to install sprinkler pipes throughout the auditoriumlevel, the company knew that the scaffold might be positioned anywhere on theauditorium floor, including the corner where the drop to the walkway existed.Thus Automatic Sprinkler should have anticipated that an employee might placeand use the scaffold where a fall distance of more than ten feet would exist,and should have made provision for complying with the standard when thisoccurred. Its failure to do so demonstrates a lack of reasonable diligence.[5]??????????? Wealso conclude that the violation is a repeated one, as the Secretary allegedand the judge concluded. Automatic Sprinkler had been cited for a violation ofthe same standard approximately a year before the inspection in this case andthe citation had become a final order prior to the inspection. Since the priorand present violations are for failure to comply with the same standard, theSecretary has established a prima facie case of substantial similarity betweenthe two violations. Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNA OSHC 1061,1979 CCH OSHD ?\u00a023,294 (No. 16183, 1979). Automatic Sprinkler attempts todistinguish the prior violation on the ground that the scaffold in the earlierviolation was more than ten feet in height while in this case only the falldistance, not the height of the scaffold, exceeded ten feet. We do not thinkthis distinction is substantial. As we have stated, a reasonable employerreading the standard in light of its purpose would understand that perimeterguarding is required on manually propelled mobile scaffolds whenever thepotential fall distance exceeds ten feet. That Automatic Sprinkler interpretedthe standard differently does not render the violations dissimilar.??????????? JudgeFier imposed a penalty of $1000 for the violation. However, after consideringthe factors set out in section 17(j) of the Act, 29 U.S.C. ? 666(i), we findthis amount to be somewhat excessive. While the violation was a repeated one,only one employee was exposed to the fall hazard, and he was exposed to thishazard for only a few minutes. Therefore, we find a penalty of $750 to beappropriate.??????????? Thejudge?s decision is modified to assess a penalty of $750 and, as so modified,is affirmed.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: NOV 30, 1979?\u00a0BARNAKO, Commissioner, concurring in part anddissenting in part:??????????? Iagree that Automatic Sprinkler violated 29 C.F.R. ? 1926.451(e)(10) for thereasons stated in the lead opinion. For the reasons that follow, however, Iconclude that the violation was serious rather than repeated in nature. ??????????? Indetermining whether a violation alleged to be repeated is substantially similarto a prior violation committed by the employer, I look to whether the employerwas on notice from the first citation that it should have taken steps toprevent the occurrence of the subsequent violation. Potlatch Corp., 79OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ?23,294 (No. 16183, 1979)(concurring and dissenting opinion). Here Automatic Sprinkler was cited for aviolation of 29 C.F.R. 1926.451(e)(10). That standard applies to two distinctsituations: first, those involving a manually propelled mobile scaffold morethan ten feet in height and second, those involving a manually propelled mobilescaffold less than ten feet in height but in which the distance from thescaffold platform to the ground or floor below exceeds ten feet. The firstcitation concerned the lack of guardrails on a manually propelled mobilescaffold for which the distance from the base of the scaffold to the working platformexceeded ten feet.[6]This citation placed Automatic Sprinkler on notice that scaffolds of the firsttype noted above required guardrails.??????????? Thescaffold in this case, however, was only 6 ? feet in height. The violationoccurred, not because Automatic Sprinkler failed to equip a scaffold more thanten feet in height with guardrails, but because it used a scaffold less thanthe feet high in a location where there was a potential fall distance of morethan ten feet. Hence the citation here involves the second situation notedabove.??????????? Theconditions for which Automatic Sprinkler was cited in this case are notsubstantially similar to the conditions for which it was initially cited. Thefirst citation required Automatic Sprinkler to assure that any scaffolds morethan ten feet in height that it made available for use by its employees wereequipped with guardrails. The citation now under consideration does not requirethat the company equip scaffolds whose height exceeds ten feet with guardrails;it requires guardrails on scaffolds that are less than ten feet in height wherethey are used in locations in which a fall greater than the height of thescaffold exists. In other words, while the first citation applies uniformly toall scaffolds over a certain height, the abatement required by the secondcitation only requires the use of guardrails in a very limited type ofsituation. The violation encompassed in the second citation was not one thatthe company was required to prevent based on the notice provided by the firstcitation.??????????? Iwould therefore not find the violation to be repeated. The Secretary allegedthat the violation was also of a serious nature, and the judge affirmed the?repeat serious? citation with a finding that the employee was exposed to afall which could have resulted in death or serious injury. Automatic Sprinklerdoes not dispute this finding. Moreover, the record shows a fall of 12 ? to 14? feet in this instance presented a substantial probability of death of seriousphysical harm since the walkways were concrete. See California Stevedore& Ballast Co., 73 OSAHRC 39\/B5, 1 BNA OSHC 1305, 1973?74 CCH OSHD ?16,520 (No. 14, 1973), aff?d, 517 F.2d 986 (9th Cir. 1975); cf. R.L.Sanders Roofing Co., 79 OSAHRC ___, 7 BNA OSHC 1566, 1979 CCH OSHD ? 23,756 ___ (No. 76?2690, 1979) (dissenting opinion). As my Colleagues note, therecord also establishes that Automatic Sprinkler could have known of theviolative condition with the exercise of reasonable diligence. Accordingly, theviolation was serious as alleged. In light of the gravity of the violation, andAutomatic Sprinkler?s good faith, prior history, and size, I agree that apenalty of $750 should be assessed.\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-5271 AUTOMATIC SPRINKLER CORPORATION OF AMERICA, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 May 25, 1977Appearances:Francis V.LaRuffa, Regional SolicitorUnited StatesDepartment of Labor1515 Broadway,Room 3555New York, New York10036Attorney forcomplainant, by Jack Fisher, Esq.\u00a0Calfee, Halter& Griswold, Esqs.1800 CentralNational Bank BuildingCleveland, Ohio 44114Attorney forrespondent by Jack R. Albanese, Esq.?DECISIONAND ORDERFier, Judge.PRELIMINARYSTATEMENT??????????? This is a proceeding pursuant to section 659 of theOccupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinaftercalled the Act), wherein respondent contests the citation and penalties for onesecond repeat serious violation. The citation dated December 1, 1976, was basedon an inspection conducted on November 29, 1976. The citation and proposedpenalty was issued pursuant to sections 9(a) and 10(a) of the Act.??????????? In accordance with section 10(c) of the Act, 29 U.S.C.659(c) respondent, through a letter dated December 8, 1976 noted its timelycontest of the citation and proposed penalty. The citation for the allegedserious second repeat violation sets forth the following:? Citation No. 1 Item No. Standard Date by which Alleged violation must be corrected Description of Alleged Violation 1 29 CFR 1926.451(e)(10) Immediately \u00a0 Standard guardrails and toeboards were not installed at all open sides and ends on manually propelled mobile scaffold(s) more than 10 feet above the ground or floor: (a) Auditorium?Grade level by Column B13 Employee observed working at the scaffold platform edge where a drop of between 12 and 14 feet above the concrete floor and no protection afforded the employee. \u00a0 \u00a0A penalty of $3,600.00 was proposed.??????????? Standardas promulgated provides:29 CFR1926.451(e)(10)(10) Guardrailsmade of lumber, not less than 2 x 4 inches (or other material providingequivalent protection), approximately 42 inches high, with a midrail, of 1 x 6inch lumber (or other material providing equivalent protection), and toeboards,shall be installed at all open sides and ends on all scaffolds more than 10feet above the ground or floor. Toeboards shall be a minimum of 4 inches inheight. Wire mesh shall be installed in accordance with paragraph (a)(6) ofthis section.?ISSUES??????????? 1. Whether the respondent violated the OccupationalSafety and Health Act as alleged.??????????? 2. Whether the respondent failed to comply with section29 CFR 1926.451(e)(10); if so, did it violate section 29 U.S.C. 654(a)(2) ofthe Act.??????????? 3. If the respondent did violate section 29 U.S.C.654(a)(2) of the Act is it a second repeat violation and what penalty, if any,shall be assessed.SUMMARYOF THE EVIDENCE??????????? The respondent is a corporation organized under the lawsof the State of Ohio. In 1976 it did a gross sales business of $80,000,000 (Tr.5).[??] The respondent, at thetime of inspection, was engaged in work in Harrison, New York. The Respondentin its answer, admits that portion of the complaint concerning jurisdiction. OnNovember 29, 1976, John Tomich a compliance officer with the United StatesDepartment of Labor (hereafter referred to as C.O.), testified that he visitedthe respondent?s worksite in Harrison, New York, as part of a followupinspection wherein an alleged violation was issued two months previous (Tr. 6,7, 8). The C.O. met with the general contractor of Tishman Realty Corp. byassistant superintendent, Ron Hosmer (Tr. 8). While proceeding to therespondent?s work area, the C.O. observed an employee working on a scaffold,?next to a drop of an elevation to a lower level of approximately six througheight feet above the level in which he had been working on the scaffold? (Tr.8). The dimensions of the scaffold were eight feet long by five feet wide. Theheight was six foot six inches to the platform where the respondent?s employeewas observed working (Tr. 9). The employee was identified by the respondent?s foreman,Joseph Hajkowski, as Carlo Masci (Tr. 10 14). The employees were stated to beworking in that particular area for the past on and one half weeks (Tr. 10).The drop was six foot six inches to the floor from the top of the scaffold andan additional six feet on one side of the scaffold and an additional eight feeton another side. Thus presenting a combined drop of 12 feet 6 inches on oneside and 14 feet six inches on another side (Tr. 15). There were no guardrails(Tr. 15, 19, 27). The scaffold was located within two feet of one edge and fourinches of the other edge (Tr. 15). The measurements were taken by the C.O. (Tr.15). The scaffold was identified as belonging to the respondent. From theposition observed, if the employee fell he would fall not just the six foot sixinch distance but rather the greater total distance of 12 feet six inches or 14feet six inches (Tr. 21). Therefore the fall distance would include thedistance from the top of the scaffold to the farthest floor below, or the base.The C.O. testified that the phrase ?maximum fall? is used to interpret thestandard (Tr. 22). The C.O. also testified that he observed the employee on thescaffold for approximately two to three minutes. This is corroborated by therespondent employees? testimony (Tr. 29).??????????? The respondent contends that the primary issue is one ofinterpretation of the standard. It is the allegation of the respondent thatregardless of the fall distance the standard specifically states that thescaffold must be at least ten feet before the standard is applicable.Accordingly, it is the allegation of the respondent that the cited standard isnot applicable and as such the Secretary has failed to make out a prima faciecase. The proposed penalty of $3,600.00 is based on the fact that therespondent was previously cited and did not contest the first violation of thesame standard. The proposed penalty of $140.00 was paid (Tr. 11, Exh. C 1). Therepeat violation referred to by the respondent has reference to the case thatwas tried in companion with the present case bearing DOcket No. 76 5089. Thiswas based on an inspection of September 27, 1976 for which no finaldetermination has been made prior to the trial of this case. On the basis ofthe foregoing, the Secretary seeks to impose a penalty of $3,600.00 as a secondrepeat violation (Tr. 11).OPINION??????????? The issue of jurisdiction is disposed of by way of thepleadings and the evidence of record as to the volume of the respondent?sbusiness and its admission that it engages in commerce across State lines. Therespondent also testified that the gross annual dollar volume for the year 1976was $80,000,000. This would appear to support a conclusion that therespondent?s business does affect commerce within the meaning of the Act andthat it is thereby subject to the jurisdiction of the Occupational Safety andHealth Act.??????????? The facts of this case are essentially not in dispute.The respondent and the Secretary agree that the primary issue rests upon aninterpretation of the work ?ground or floor? as it is used in defining thestandard 29 CFR 1926.451(d)(10). The specific portion of the standard in issueis concerned with the words ?shall be installed at all open sides and ends onall scaffolds more than 10 feet above the ground or floor.? In resolving theissue of this case it is necessary to once again refer to the particular factsof this matter. The respondent?s employee was observed on a scaffold that issix feet in height. However, the scaffold was adjacent to a drop of anadditional six to eight feet on the exposed two sides. The question thereforeis where and in what manner is the fall distance to the measured in determiningthe applicability of the standard. If one is to consider that the six foot scaffoldis not required to have guardrailings regardless of what the fall distance fromthe platform is, then the citation should properly be dismissed. On the otherhand, if the intent of the standard is concerned with the exposure of anemployee to a hazard then one must look into the meaning of the standard indetermining what is meant by the 10 foot distance from the ground or floor. Therespondent refers to the decision of Secretary v. Western WaterproofingCompany, Inc., Docket No. 14237 (March 22, 1976) CCH ? 20,646, ??. TheJudge, in this case, properly dismissed the citation because the employees wereexposed to a fall from a scaffold adjacent to a chimney, of no greater thanfive feet to the roof below. In so doing the rational indicates that the heightof the scaffold in not the primary measure for determining whether the standardis complied with but rather the exposure to danger of a fall by an employee.Therefore, if an employee is exposed to a fall on a six foot platform to adistance of 12 feet six inches, this would appear to require compliance of thestandard and of the Act that the primary purpose is to protect the employeefrom serious injury or death. It must also be noted that while the scaffold wasonly six feet from the floor or ground on two sides, on the remaining two sides,the scaffold was located within two feet of one edge on one side, and fourinches at the other edge on the other side (Tr. 15).??????????? The theory of the respondent rests on the fact that thescaffold itself was only six feet in height. However, it must be assumed andrationalized that if the height is increased because the scaffold is resting ona surface adjacent to an edge with a total fall distance from the platform tothe lowest level adjacent to the platform in excess of ten feet, then the falldistance will determine the applicability of the standard. The increased heightof the scaffold requires that compliance must be expected, since an employeewill be exposed to a danger that may result in serious injury or death.??????????? The Review Commission in a recent decision stated inpart:?The Secretary?sinterpretation of the standard is adopted. Occupational safety and healthstandards should be interpreted in light of the conduct to which they areaddressed. Brennan v. O.S.H.R.C. and Santa Fe Trail Transportation Co.,505 F.2d 869, 872 [2 OSHC 1274] (10th Cir. 1974); Ryder Truck Lines, Inc. v.Brennan, 497 F.2d 230, 233 [2 OSHC 1075] (5th Cir. 1974).???????????? The obvious purpose of the standard is to provide foremployees exposed to the hazard of falling a distance of more than ten feetfrom a horse scaffold. Interpreting the term ?ground or floor? to mean thedistance of the scaffold from its base, rather than any greater distance to theground, is inconsistent with the regulatory purpose, as well as with a literalreading of the term ?ground.???????????? It is also significant that in other parts of ? 1926.451the Secretary uses the measurement ?10 feet above the ground or floor? whenreferring to hanging scaffolds, which have no base. There, the ten-footdistance can only refer to the distance that an employee may fall. See e.g. 29CFR ? 1926. 451(g)(5); 29 CFR ? 1926.451(h)(15).?Secretary v. Julius NassoConcrete Corporation, OSAHRC Docket No. 7542 (April 11, 1977) BNA 50 SHC1235, CCH ?19892.??????????? On the basis of the foregoing, it is necessary toconclude that the respondent did violate the standard by failing to provideguardrails as required by 29 CFR 1926.451(e)(10).??????????? There remains the issue of an alleged second repeatviolation. The history and facts of this case clearly demonstrate that theinstant case must be considered together with the decision of the undersignedissued May 12, 1977 bearing Docket No. 76 5089.??????????? The parties to both actions and the standard involved arethe same. In that decision it was determined that the prior violation wasconstrued as a repeat violation and as such the penalty was affixed on thebasis of the evidence. Reference is therefor made to the DesarrollosMetropolitanos, Inc., v. OSAHRC No. 76 1171 (1 C.A. March 23, 1976); DocketNo. 11084, BNA 4 OSHC 1033, CCH ? 20,103. There as here, it has been determinedthat a violation of the same standard, previously affirmed although at adifferent geographically work site, constitutes a repeat violation. Thedecision in Docket No. 76-5089, with the same parties as in this case, was nota final Order as of the date of trial of this case. Accordingly, it wouldhardly follow that a second repeat violation can be sustained on the basis ofthe facts concerning the issuance of the citation. Therefore, it is necessaryto conclude that the instant violation can only be sustained as a repeatviolation based on Exhibit-1.??????????? In considering the assessment of a penalty, the criteriaof section 17 of the Act concerning the respondent?s size, good faith, and thegravity of the violation, have been duly considered. In addition, the specificcircumstances of this case have been carefully weighed together with counsel?shonest belief that the standard was not violated. It is apparent that thearguments put forth by counsel that consideration must be given for the factthat the scaffold was only partially exposed on two sides and that the periodof time was of short duration, merits reflection. After consideration of all ofthe above it is determined that a penalty of $1,000.00 would not beinappropriate under the circumstances.FINDINGSOF FACT??????????? The credible evidence and the record as a wholeestablishes preponderant proof of the following facts:??????????? 1. Respondent, Automatic Sprinkler Corporation of Americais engaged in the business of installing sprinkler systems. The respondent?sbusiness crosses State lines. Its gross volume of business indicates that itaffects commerce.??????????? 2. Respondent?s employee was working on a scaffold thatdid not have guardrails and to which two sides of the scaffold were more than10 feet from the ground or floor.??????????? 3. Respondent?s employee was exposed to a fall from thescaffold which could have resulted in death or serious injury.??????????? 4. Respondent was previously found to be in violation ofthe identical standard.??????????? 5. The evidence shows that the scaffold used by therespondent?s employee was not equipped with guardrails, midrails, toeboards orscreens as required on those sides which were exposed to a height or falldistance of more than 10 feet from the ground or floor below, in this case ontwo sides of the scaffold.CONCLUSIONSOF LAW??????????? 1. The respondent is and was at all times herein engagedin a business affecting commerce within the meaning of section 3 (5) of theOccupational Safety and Health Act of 1970.??????????? 2. The Occupational Safety and Health Review Commissionhas jurisdiction over the subject matter and parties to this action.??????????? 3. Respondent violated 29 U.S.C. 654(a)(2) by failing tocomply with 29 CFR 1926.451(e)(10) as a repeat violation.ORDER??????????? Upon the basis of the foregoing findings of fact andconclusions of law, and upon the entire record, it is hereby??????????? ORDERED that:??????????? Citation no. 1 is affirmed. Total penalty of $1,000.00 isassessed.?SEYMOUR FIERJUDGE, OSHRCDated: May 25, 1977New York, New York[1] The standard, 29C.F.R. ? 1926.451(e)(10), is quoted in the text infra.[2] 29 U.S.C. ??651?678, ?the Act.?[3] Automatic hadbeen cited twice previously for violation of ? 1926.451(e)(10), and one ofthose citations had become a final order. The only evidence introducedconcerning the final order was the citation itself, which showed that aconstruction site in Yonkers, New York, had been inspected on October 28, 1975,and described the violation there as follows:Manuallypropelled mobile scaffold 11 feet 6 inches high was in use without standardrails. Guardrails, midrails and toeboards shall be installed on open end andsides of scaffolds more than 10 feet in height.[4] AutomaticSprinkler also asserts that the standard would be vague if applied to thesituation here because it would not give notice of how close to an edge ascaffold would have to be for the 10 foot height to include the drop off theedge. While there may be causes where a close question exists as to whether anemployee falling from a scaffold would fall off an adjacent edge, there is noquestion that such a fall would occur here, where the scaffold sides are nofurther than two feet from the nearest edge. Thus, any uncertainty that mightarise in other cases provides no reason for failing to apply the standard inthis case. See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5thCir. 1974).[5] Although Mascitestified that his foreman had previously told him that a scaffold higher thanten feet required guardrails, it is clear Automatic Sprinkler did not intendthis instruction to apply to the facts here, for it interpreted the ten footrequirement to mean the height of the scaffold. Thus, this instruction cannotbe taken as a step designed to prevent the violation. See The Kansas Power& Light Co., 77 OSAHRC 39\/A2, 5 BNA OSHC 1202, 1977?78 CCH OSHD ?21,696(No. 11015, 1977).[6] The citationstated,Manuallypropelled mobile scaffold 11 feet 6 inches high was in use without standardrails. Guardrails, midrails and toeboards shall be installed on open end andsides of scaffolds more than 10 feet in height. (emphasis added).[??] Denotes thetranscript page.”