“SECRETARY OF LABOR,Complainant,v.FRED C. KROEGER & SONS,Respondent.OSHRC Docket No. 88-0832_ORDER_The above cited action was directed for review before the occupationalSafety and Health Review Commission by Former Chairman E. Ross Buckleyon March 8, 1989 from a decision by Administrative Law Judge Louis G.LaVecchia dated February 1, 1989. The Secretary of Labor has filed aNotice to Withdraw Item 2 of Citation 1 pursuant to Commission Rule 102,29 C.F.R. ? 2200.102.Having reviewed the official record in this case, the Commissionconstrues the Secretary’s Notice to Withdraw as a Motion to WithdrawItem 2 of Citation 1 and grants the motion. In addition, the Commissionsets aside the Judge’s decision to the extent that it rules on Item 2 ofCitation 1, the withdrawn citation.On June 19, 1989, while this case was still pending before theCommission, the Respondent wrote to the Commission and asked it to \”readthe entire transcript of the hearing and [to] review copies of materialpreviously sent to you. . . . \” The Commission construes this letter asa request that the commission review the judge’s affirmance of citationitem no. 1. Because former chairman Buckley’s direction for review\”establishe[d] jurisdiction in the Commission to review the entirecase,\” see 29 C.F.R. ? 2200.92 (a), the Commission has the authority toreview citation item no. 1. The Commission declines to exercise thatauthority, however, because the Respondent neither petitioned fordiscretionary review of the Judge’s affirmance of that item norpresented any reasons in its June 19 letter why the judge’s decisionshould be reversed. We therefore affirm item 1 of citation 1.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: May 24, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.FRED C. KROEGER & SONS,Respondent.OSHRC Docket No. 88-0832APPEARANCES:_Michael H. Olvera_, Esquire, for the Department of Labor_Fred C.Kroeger_, _Pro_ _Se_, for the Respondent._DECISION AND ORDER_Louis G. LaVecchia, JudgeThis proceeding arises under Section 10 of the Occupational Safety andHealth Act of 1970 (29 U.S.C. sec 651 _et_ _seq_.), also referred to asthe \”Act\”.The respondent seeks review of a citation issued against it in March1988 following an inspection performed by a compliance officer of theOccupational Safety and Health Administration (\”OSHA\”) on January 26-27,1988. The inspection took place after the issuance of a warrant againstthe general contractor at a construction site. The respondent was asub-contractor, engaged in bricklaying activities at the time, at a SanAntonio church.A hearing was held on September 13, 1988 in San Antonio. Briefs were notfiled by the parties.The citation alleges that the respondent violated the safety standardset forth at 29 CFR 1926.451(a)(13) in that no access ladder orequivalent safe access to scaffolds was provided for employees exposedto fall hazards of up to 39 feet. It is further alleged that therespondent violated the safety standard set forth at 29 CFR1926.451(d)(10) in that standard guardrails and toeboards were notinstalled at all open sides and ends on tubular welded frame scaffoldsmore than 10 feet above the ground, exposing the employees to the hazardof a fall of 11 fee.A civil penalty of $240 was proposed for the first violation; and $120was proposed for the second violation alleged._The Relevant Testimony_The compliance officer, after contacting the general contractor,recommended that one representative of the several sub-contractorsaccompany him on the inspection in order not to disrupt the work whichwas being performed. (Tr. 7). The respondent’s employees were engaged inmasonry operations, installing bricks on the side of the building. Therewas a total of 24 employees of the respondent engaged in the operations.At the outset, the CO noted that the respondent’s employees were notusing a ladder to mount the scaffolds in use. Instead the employees wereclimbing the scaffolds to the required level through the use of thescaffold braces themselves. (Tr. 91). One particular employee wasphotographed (Ex. C-1) clinging to the scaffold’s outer braces. Theviolation was called to the attention of the respondent’s foreman. Thescaffold involved was 40 feet high, but the highest point at which theCO noted an employee working was about 12 feet. (Tr. 14). The CO statedthat the fall hazard could have been abated through the rental of aladder that attaches to scaffolds, containing evenly spaced rungs andgrab-bars at the top of the ladder. (Tr. 18). Mr. Acker, therespondent’s foreman, said that he would rent such a ladder. (Tr. 19)The CO stated that the scaffold was equipped with guardrails, and theemployee in the photograph (Ex. C-1) was halfway between two workplatforms. (Tr. 23). Workers on the work platforms would be adequatelyprotected by the guardrails noted. (Tr. 24). The worker in thephotograph was simply clinging to the scaffold, with no safety line orany other type of protection against his falling to the ground. (Tr.25). He was located between the building and the scaffold. (Tr. 26). TheCO expressed the belief that a safety belt and lanyard would haveprotected the worker from falling from the scaffold under the conditionspresented. (Tr. 28-29). The respondent’s foreman was in the company ofthe CO at the time the photograph was taken. There were two dooropenings in the building under construction. They did not juxtapose withthe work platforms, so that an employee could not simply step from thedoor opening onto a work platform without climbing up to a platform ordown to another. (Tr. 31,32). The CO estimated that the distance betweenthe inner portion of the scaffold, closest to the building, and thebuilding wall was 13 inches in some areas. (Tr. 44).Mr. Kroeger insists that the workman in the photograph was not abricklayer, as the CO assumed, but that he was a laborer in the processof changing or modifying the scaffold. (Tr. 47). He denies that theemployee was exposed to a fall hazard on the grounds that the proximityto the building would not permit the workman’s body to fall between thescaffold and the building wall. (Tr. 47). He further stated that workmenare reluctant to climb a ladder to the height of 40 feet, and wouldrather climb the steps in a building under construction and then stepout onto a work platform on a scaffold. He also denied that his foreman(Acker) was on the inspection walk around with the compliance officer atthe time of the visualization by the CO of the alleged violations. (Tr.47, 48). He does not deny that no ladder was provided for access to thescaffold.A notarized statement was signed by Acker denying that he was in thewalk-around inspection with the compliance officer. (Ex. R-1)._Discussion_No weight can be given to the statement signed by the foreman (Acker)denying that the participated in the inspection in view of (1) thecompliance officer’s inclusion in his report of the foreman’sparticipation in the inspection, (2) the evident candor of thecompliance officer in his statements with respect to that particularincident, and (3) the failure of the respondent to produce Acker as awitness subject to cross examination at the hearing. Hence I find noreason to believe that the inspection was conducted in any manner otherthan that permitted by the elements of fairness and within the ethicalstandards required by the Act.In addressing the merits of the alleged violations it appears that thereis a substantial question with respect to the activities of the workmanphotographed on the scaffold. The compliance officer’s testimony issketchy in that he stated that the employee told him that he was abrick-layer, and yet the photograph clearly belies that theory sincethere are no bricks or bricklaying equipment in the employee’s hands. Abricklayer does not lay bricks while holding onto a scaffold with onehand, as Mr. Kroeger insists. Thus, Mr. Kroeger’s statements that theemployee was a laborer engaged in modifying or changing the structure ofthe scaffold must be given more weight than the testimony of thecompliance officer. There is also the question of the height at whichthis employee was working. The compliance officer exhibited considerableuncertainty as to whether he was at 10, 11, 12, or 13 feet from theground. The method of measurement was never placed on record. In thesecircumstances the complainant has failed to prove a violation of Item 2of the citation and it will be vacated.Item 1 must be affirmed inasmuch as the evidence clearly shows that noaccess ladder was provided by the respondent as required by thestandard, nor was an equivalent safe access to the scaffoldsdemonstrated. Permitting workmen to climb the scaffold cross-braces,etc., in reaching work platforms can hardly be considered equivalentsafe access. It is obvious that a fall from heights in excess of 10 feetwould result in serious injuries. This item must be affirmed.There remains the question of whether the proposed penalty of $240 forthe violation of the standard cited under Item 1 is appropriate underthe criteria afforded by the Act. It is my opinion that consideration ofthe size of the respondent’s operations warrants a reduction of theproposed penalty to $100._Conclusions_1. The Review Commission has jurisdiction of this proceeding.2. The respondent did not violate 29 CFR 1926.451(d)(10).3. The respondent did violate 29 CFR 1926.451 (a)(13)._ORDER_ORDERED that:1. Item 1 of Citation No. 1 is affirmed, with a civil penalty of $100assessed.2. Item 2 of Citation No. 1 is vacated.Louis G. LaVecchiaJudge, OSHRCDate: February 1, 1989,”