“Docket No. 88-0832 SECRETARY OF LABOR, Complainant, v. FRED C. KROEGER & SONS, Respondent.OSHRC Docket No. 88-0832ORDER The above cited action was directed for review beforethe occupational Safety and Health Review Commission by Former Chairman E. Ross Buckley onMarch 8, 1989 from a decision by Administrative Law Judge Louis G. LaVecchia datedFebruary 1, 1989. The Secretary of Labor has filed a Notice to Withdraw Item 2 of Citation1 pursuant to Commission Rule 102, 29 C.F.R. ? 2200.102.Having reviewed the official record in this case, theCommission construes the Secretary’s Notice to Withdraw as a Motion to Withdraw Item 2 ofCitation 1 and grants the motion. In addition, the Commission sets aside the Judge’sdecision to the extent that it rules on Item 2 of Citation 1, the withdrawn citation.On June 19, 1989, while this case was still pendingbefore the Commission, the Respondent wrote to the Commission and asked it to \”readthe entire transcript of the hearing and [to] review copies of material previously sent toyou. . . . \” The Commission construes this letter as a request that the commissionreview the judge’s affirmance of citation item no. 1. Because former chairman Buckley’sdirection for review \”establishe[d] jurisdiction in the Commission to review theentire case,\” see 29 C.F.R. ? 2200.92 (a), the Commission has the authority toreview citation item no. 1. The Commission declines to exercise that authority, however,because the Respondent neither petitioned for discretionary review of the Judge’saffirmance of that item nor presented any reasons in its June 19 letter why the judge’sdecision should be reversed. We therefore affirm item 1 of citation 1.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: May 24, 1990SECRETARY OF LABOR, Complainant, v. FRED C. KROEGER & SONS, Respondent.OSHRC Docket No. 88-0832APPEARANCES:Michael H. Olvera, Esquire, for the Departmentof Labor Fred C.Kroeger, Pro Se, for theRespondent.DECISION AND ORDERLouis G. LaVecchia, JudgeThis proceeding arises under Section 10 of theOccupational Safety and Health Act of 1970 (29 U.S.C. sec 651 et seq.), alsoreferred to as the \”Act\”.The respondent seeks review of a citation issued against it in March 1988 following aninspection performed by a compliance officer of the Occupational Safety and HealthAdministration (\”OSHA\”) on January 26-27, 1988. The inspection took place afterthe issuance of a warrant against the general contractor at a construction site. Therespondent was a sub-contractor, engaged in bricklaying activities at the time, at a SanAntonio church.A hearing was held on September 13, 1988 in SanAntonio. Briefs were not filed by the parties.The citation alleges that the respondent violated thesafety standard set forth at 29 CFR 1926.451(a)(13) in that no access ladder or equivalentsafe access to scaffolds was provided for employees exposed to fall hazards of up to 39feet. It is further alleged that the respondent violated the safety standard set forth at29 CFR 1926.451(d)(10) in that standard guardrails and toeboards were not installed at allopen sides and ends on tubular welded frame scaffolds more than 10 feet above the ground,exposing the employees to the hazard of a fall of 11 fee.A civil penalty of $240 was proposed for the firstviolation; and $120 was proposed for the second violation alleged.The Relevant TestimonyThe compliance officer, after contacting the generalcontractor, recommended that one representative of the several sub-contractors accompanyhim on the inspection in order not to disrupt the work which was being performed. (Tr. 7).The respondent’s employees were engaged in masonry operations, installing bricks on theside of the building. There was a total of 24 employees of the respondent engaged in theoperations.At the outset, the CO noted that the respondent’semployees were not using a ladder to mount the scaffolds in use. Instead the employeeswere climbing the scaffolds to the required level through the use of the scaffold bracesthemselves. (Tr. 91). One particular employee was photographed (Ex. C-1) clinging to thescaffold’s outer braces. The violation was called to the attention of the respondent’sforeman. The scaffold involved was 40 feet high, but the highest point at which the COnoted an employee working was about 12 feet. (Tr. 14). The CO stated that the fall hazardcould have been abated through the rental of a ladder that attaches to scaffolds,containing evenly spaced rungs and grab-bars at the top of the ladder. (Tr. 18). Mr.Acker, the respondent’s foreman, said that he would rent such a ladder. (Tr. 19)The CO stated that the scaffold was equipped with guardrails, and the employee in thephotograph (Ex. C-1) was halfway between two work platforms. (Tr. 23). Workers on the workplatforms would be adequately protected by the guardrails noted. (Tr. 24). The worker inthe photograph was simply clinging to the scaffold, with no safety line or any other typeof protection against his falling to the ground. (Tr. 25). He was located between thebuilding and the scaffold. (Tr. 26). The CO expressed the belief that a safety belt andlanyard would have protected the worker from falling from the scaffold under theconditions presented. (Tr. 28-29). The respondent’s foreman was in the company of the COat the time the photograph was taken. There were two door openings in the building underconstruction. They did not juxtapose with the work platforms, so that an employee couldnot simply step from the door opening onto a work platform without climbing up to aplatform or down to another. (Tr. 31,32). The CO estimated that the distance between theinner portion of the scaffold, closest to the building, and the building wall was 13inches in some areas. (Tr. 44).Mr. Kroeger insists that the workman in thephotograph was not a bricklayer, as the CO assumed, but that he was a laborer in theprocess of changing or modifying the scaffold. (Tr. 47). He denies that the employee wasexposed to a fall hazard on the grounds that the proximity to the building would notpermit the workman’s body to fall between the scaffold and the building wall. (Tr. 47). Hefurther stated that workmen are reluctant to climb a ladder to the height of 40 feet, andwould rather climb the steps in a building under construction and then step out onto awork platform on a scaffold. He also denied that his foreman (Acker) was on the inspectionwalk around with the compliance officer at the time of the visualization by the CO of thealleged violations. (Tr. 47, 48). He does not deny that no ladder was provided for accessto the scaffold. A notarized statement was signed by Acker denying that he was in the walk-aroundinspection with the compliance officer. (Ex. R-1).Discussion No weight can be given to the statement signed by theforeman (Acker) denying that the participated in the inspection in view of (1) thecompliance officer’s inclusion in his report of the foreman’s participation in theinspection, (2) the evident candor of the compliance officer in his statements withrespect to that particular incident, and (3) the failure of the respondent to produceAcker as a witness subject to cross examination at the hearing. Hence I find no reason tobelieve that the inspection was conducted in any manner other than that permitted by theelements of fairness and within the ethical standards required by the Act.In addressing the merits of the alleged violations it appears that there is a substantialquestion with respect to the activities of the workman photographed on the scaffold. Thecompliance officer’s testimony is sketchy in that he stated that the employee told himthat he was a brick-layer, and yet the photograph clearly belies that theory since thereare no bricks or bricklaying equipment in the employee’s hands. A bricklayer does not laybricks while holding onto a scaffold with one hand, as Mr. Kroeger insists. Thus, Mr.Kroeger’s statements that the employee was a laborer engaged in modifying or changing thestructure of the scaffold must be given more weight than the testimony of the complianceofficer. There is also the question of the height at which this employee was working. Thecompliance officer exhibited considerable uncertainty as to whether he was at 10, 11, 12,or 13 feet from the ground. The method of measurement was never placed on record. In thesecircumstances the complainant has failed to prove a violation of Item 2 of the citationand it will be vacated.Item 1 must be affirmed inasmuch as the evidenceclearly shows that no access ladder was provided by the respondent as required by thestandard, nor was an equivalent safe access to the scaffolds demonstrated. Permittingworkmen to climb the scaffold cross-braces, etc., in reaching work platforms can hardly beconsidered equivalent safe access. It is obvious that a fall from heights in excess of 10feet would result in serious injuries. This item must be affirmed.There remains the question of whether the proposed penalty of $240 for the violation ofthe standard cited under Item 1 is appropriate under the criteria afforded by the Act. Itis my opinion that consideration of the size of the respondent’s operations warrants areduction of the proposed penalty to $100.Conclusions 1. The Review Commission has jurisdiction of thisproceeding.2. The respondent did not violate 29 CFR1926.451(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 civilpenalty of $100 assessed.2. Item 2 of Citation No. 1 is vacated.Louis G. LaVecchia Judge, OSHRCDate: February 1, 1989,”