“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States Courtof Appeals for the Sixth Circuit in J.L. Foti Construction Co. v. OSHRC,No. 85-3013 (6th Cir. May 19, 1986)(unpublished decision). In accordancewith that decision, and with respect to the Secretary of Labor’sallegation that J.L. Foti Construction Company violated 29 C.F.R. ?1926.451(a)(2) by using concrete blocks to support a scaffold, this caseis remanded to Administrative Law Judge James D. Burroughs \”for afactual finding on the issue of the stability of the scaffold’s[concrete block] support.\” J.L. Foti, slip op. at 13.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: October 16, 1986————————————————————————SECRETARY OF LABOR,Complainant,v.J. L. FOTI CONSTRUCTION COMPANY, INC.,Respondent.OSHRC Docket No. 83-1126APPEARANCES: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\”), amasonry contractor, contests a serious and \”other\” citations issued toit on October 13, 1983. The citations were issued as a result of aninspection conducted by OSHA Compliance Officer Eugene E. Heard(\”Heard\”) on September 29, 1983, and October 4, 1983. The inspection wascommenced after Heard received a telephone call complaining that anunsafe scaffold, approximately 40 feet high, was in danger of falling.The caller did not identify himself or the employer involved but dididentify the general area of the work location.The serious citation alleges a violation of three separate items. Itemone 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 tocontact by employees be guarded. Item two alleges that the scaffold atthe west wall of the \”Chem-Feed Building\” failed to comply with 29C.F.R. ? 1926.451(a)(2), which requires that no unstable objects be usedto support a scaffold. Item three alleges that the scaffold at the westwall of the \”Chem-Feed Building\” failed to comply with 29 C.F.R. ?1926.451(d)(10), which requires guardrails on all open sides ofscaffolds more than ten feet above adjoining ground or floor. A totalpenalty of $540 was proposed for the alleged violations.The \”other\” citation alleged a violation of two separate items. At thecommencement of the hearing, counsel for the Secretary moved to vacateitem two, which alleged a violation of 29 C.F.R. ? 1926.451(a)(2). Themotion was granted (Tr. 4-7). The remaining \”other\” item in contestinvolves the allegation that Foti failed to post the required OSHAnotice 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 constitutionalrights to an expectation of privacy, the Fourth Amendment to the UnitedStates Constitution and its civil rights. It is undisputed that anemployer may insist upon a warrant before entry is made upon itspremises by an OSHA compliance officer. _Marshall v. Barlow’s, Inc_.,436 U. S. 307, 98 S. Ct. 1816 (1978). At the same time, a searchconducted pursuant to a voluntarily obtained consent comes within anexception to the general warrant requirement of the fourth amendment andis wholly valid. Schneckloth v. Bustamonte, 412 U. S. 218, 93 S. Ct.2041 (1973). In this case, Foti’s argument must be rejected since thereis no evidence that consent was not obtained from the general contractorand no evidence that Foti’s foreman at the site objected to theinspection. There has also been no showing that Foti, as asubcontractor, had a reasonable expectancy of privacy at the site.Heard arrived at the site around 2:30 p.m. on September 29, 1983. Uponhis arrival, he located the trailer of the general contractor, WalbridgeAldinger, and presented his credentials to Mr. De Fauw, superintendentfor the general contractor. Heard explained the purpose of his visit andthen proceeded to conduct an inspection. During his walk around the siteon September 29, 1983, Heard met Robert Hill, Foti’s bricklayer foremanat the site. He presented his credentials to Hill, explained the purposeof his visit, and offered him an opportunity to accompany him on theinspection (Tr. 12-15). According to Heard, neither De Fauw nor Hillobjected to the inspection (Tr. 15). Hill testified that he did notremember being invited to participate in the inspection but did not denyhe was given the opportunity (Tr. 130).Hill acknowledged that Heard met him during the inspection but had norecollection of Heard saying anything that would constitute an openingconference (Tr. 129-130). He made no statements that disputed Heard’stestimony that De Fauw and Hill raised no objection to the inspection,and Foti does not argue that permission to enter and inspect the sitewas 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 notobtained from Hill to conduct an inspection of the Foti work areas atthe site (Tr. 54). This does not mean that he did not have permission tobe on the construction site. Heard testified that upon arrival at thesite, he presented his credentials to De Fauw, explained why he was atthe site and received a list of subcontractors from De Fauw (Tr. 13). Hefurther testified that no employee of the general contractor or Fotiobjected to the inspection (Tr. 15). Since no objection was raisedagainst Heard conducting an inspection, there was at least an impliedconsent on the part of the general contractor and Foti. Cooperation bythe general contractor is reflected in Hill’s testimony that, when heobserved Heard, he was walking with the job superintendent and thecarpenter steward (Tr. 129).In administrative inspections, the courts have adopted a standard ofconsent 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 administrativeinspection stated:In conclusion, we hold that in the context of the exclusionary rule awarrantless inspection search of business premises is reasonable whenentry is gained not by force or misrepresentation, but is, withknowledge of its purpose, afforded by manifestation of assent.A compliance officer does not have to inform the employer of the rightto refuse a warrantless inspection. Daniel International Corp., 81OSAHRC 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 thesite, identified himself to the job superintendent, explained thepurpose of his visit, asked for a list of subcontractors and proceededto conduct the inspection. When he encountered Hill on the site, heagain presented his credentials and explained the purpose of his visit.The failure to object, at the least, constituted implied consent to theinspection. The consent need not be express and the failure to object toa known search constitutes consent. There is no evidence ofintimidation, coercion or misrepresentation that would invalidate theconsent in this case. The failure of Hill to object to the inspectionresulted 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 ofprivacy. The restrictions upon searches and seizures were designed toprotect against official invasion of privacy and the security ofproperty. Jones v. United States, 362 U. S. 257, 80 S.Ct. 725 (1960).Since Foti seeks to challenge the legality of the inspection (construedas an illegal search by Foti), it must establish that it was the victimof an invasion of privacy. Elbel v. United States, 364 F.2d 127 (10thCir. 1966). Since a joint occupant assumes the risk of his co-occupantexposing their common private areas to such a search, there is noreasonable expectation of privacy under such circumstances. UnitedStates v. Sumlin, 567 F.2d 684 (6th Cir. 1977). The general contractorhad authority over the inspected premises. Foti was a subcontractorworking under the general contractor. The consent of the generalcontractor was voluntary and constituted valid consent to the presenceof the compliance officer where the work of Foti’s employees could beviewed.A general contractor may consent to the inspection of a common work sitewhere a subcontractor is working. Havens Steel Co., 78 OSAHRC 53\/C11, 6BNA OSHC 1740, 1978 CCH OSHD ? 22,875 (No. 15538, 1978). The jobsuperintendent for the general contractor exercised control over thepremises and his consent and participation in the inspection with Heardwas valid and binding against Foti. The inspection was constitutionallypermissible._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 andsprocket on a West Brick Buggy used to carry and lift brick in theChem-Feed building. The buggy has been used by Foti since its inceptionin 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 areaat the top. The belt and pulley was unguarded but located in an area ofthe motor assembly that provided some protection.The standard requires guarding where the chain and sprocket and belt andpulley \”are exposed to contact by employees or otherwise create ahazard.\” Foti submits that the Secretary has failed to meet the burdenof proof imposed by the standard. It argues that employees were notexposed to the partially guarded moving parts of the buggy and that nohazard was created. The Secretary contends that the proximity of thehands to the moving parts and the fact that the buggy can be operatedwith one hand establish exposure to a hazard.The left handle of the buggy is 14 inches from the exposed upper chainand sprocket when the handle bar is in a neutral position. There is adistance of 12 inches from the left handle to the pulley when the handlebar is in neutral position. The right handle would be a greater distancefrom the moving parts. The hydraulic control level is 11 inches from thechain and sprocket and 10 inches from the belt and pulley. The Secretaryargues that the closeness of the left hand to the moving partsestablishes a hazard, citing F. H. Lawson Co., 80 OSAHRC 19\/A14, 8 BNAOSHC 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 withone 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 tobe moved with the left handle if the buggy is to be moved. The throttleis on the left handle. If the left hand is used to raise or lower thebar, the right hand would be located too far away to be exposed to themoving parts. The operator would have to deliberately place his righthand in the moving parts in order to have his hand injured. The chainand sprocket only turn when the buggy is moving. Release of the handleautomatically stops the turn of the chain and sprocket. The left handwould be on the handle at anytime the buggy is moving. As a practicalmatter, it is doubtful the buggy would ever be operated with one handsince it is steered by the handles. It would be awkward operating andtrying 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 hydraulicpressure for the lift mechanism of the buggy. The location of the beltand pulley within the motor assembly provides sufficient protection tothe operator. In order to reach the belt and pulley, there would have tobe some deliberate attempt to do so by the operator. The locationprevents any reasonable accidental contact.While not determinative of the issue, the past operating record of thebuggy shows that injuries have not been a problem. Hill testified thathe had approximately 20 years’ experience with the buggy (Tr. 132).During this period of time, he has known of no injuries resulting fromthe belt drive or sprocket and chain (Tr. 134). John A. Fees, safety andeducation director for the Construction Employer’s Association,testified that he had been familiar with the buggy for approximately 30years 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 since1960 and was aware of their history (Tr. 173). During the time hiscompany has used the buggies, it has had no injuries from their use.Foti was unaware of any injuries resulting from their use by othercontractors (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 theChem-Feed building. The southwestern leg of the scaffold located at thewest wall of the building was supported by a 2-x-10 inch board whichrested on concrete blocks along the brick wall. The end of the boardextended 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 blockapproximately six feet in height. The I-beam ran at an angle to theconcrete block and 2-x-10 board. The leg of the scaffold farthest fromthe brick wall rested on the I-beam. This method of support was pursuedby employees of Foti because the end of the scaffold was within inchesof an open excavation and, in the event of a rain, there was fear theexcavation wall would collapse.Foti argues that there was nothing unstable about the manner in whichthe scaffold was erected. It points out that Heard had no idea of theload-bearing capacity of the concrete blocks and that he did not in anyway test the scaffold for stability. Heard testified that in his opinionthe scaffold was unstable. Foti disputes Heard’s opinion and refers towitnesses on its behalf that concluded the scaffold resting on theconcrete blocks was stable. The standard prohibits the use of concreteblocks; consequently, it is not necessary to weigh the differences ofopinion among the witnesses. In Constructora Maza, Inc., 77 OSAHRC213\/B9, 6 BNA OSHC 1208, 1977-78 CCH OSHD ? 22,421 (No. 12434, 1977),the Commission rejected the argument that a scaffold supported onconcrete blocks was safe. The Commission noted a difference between thegravity of a violation and the presence of the violative conditions. TheCommission concluded that 29 C.F.R. ? 1926.451(a)(2) was mandatory andthat concrete blocks are specifically prohibited from being used tosupport scaffolds or planks. As in Constructora Maza, Inc., there is nodispute over the fact that Foti’s scaffold was supported by concreteblock. The violation is affirmed.Foti argues that the \”use of concrete block to support a scaffold doesnot in and of itself establish a per se violation unless the block isused 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 OSAHRC36\/C10, 8 BNA OSHC 1281, 1980 CCH OSHD ? 24,421 (1980). One of theissues in that case involved an alleged violation of 29 C.F.R. ?1926.451(a)(2) for using concrete blocks under planks upon which ascaffold was supported. The facts disclosed that the planking rested onangle iron inserted three inches in the wall. The angle iron wassupported by concrete blocks. Judge Cutler determined that \”[t]hepurpose of the concrete blocks was not for support but to take some ofthe spring out of the angle iron.\” The specific finding by Judge Cutlerthat the concrete blocks were not intended as support distinguishes thatcase 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 thescaffold located on the west side of the Chem-Feed building and forimproperly locating the midrails where guardrails were installed. Thereis no dispute over the fact that the guardrail at the southern end ofthe scaffold was missing. The missing rail is clearly reflected in thephotograph introduced as exhibit 6. Foti claims that it was in theprocess of removing the guardrails and had, just prior to theinspection, removed the guardrail at the south end.Hill, in looking at a photograph of the scaffold, acknowledged thatthree of Foti’s employees were on the scaffold but testified that themen were getting ready to leave the area because they had finishedbuilding the wall as high as they could from that scaffold (Tr.138-139). According to Hill, the end guardrail had been removed in thedismantling process so that another tier of scaffold could be erected(Tr. 140-141, 150). While Heard cited Foti for not having a guardrail onthe end of the scaffold, he testified that he did not know if theguardrails were being removed so that another tier of scaffold could beerected (Tr. 100). There is no evidence to dispute Hill’s claim that theguardrails were being dismantled.The scaffold was erected to be used in building the brick wall. At thetime of the inspection, there was no evidence of any brick on the southend of the scaffold (none is reflected in exhibit 6). Heard testifiedthat he observed pallets of brick being loaded on the north end of thescaffold, but the location of the brick was a good distance from thesouth end of the scaffold.[[4\/]] One of the two employees in thephotograph introduced as exhibit 6 appears to have a piece of 2×4 in hishand, which would be consistent with the testimony of Hill that theywere dismantling the guardrail at that end of the scaffold in order toerect another tier of scaffold. It is clear from the photograph thatthey are not laying brick.The evidence supports Foti’s argument that the employees were in theprocess of dismantling the guardrails at the time of the inspection. Itwas necessary to remove the guardrails prior to erecting another tier ofscaffold. Where it is necessary to remove guardrails to perform specificwork, the Commission has held that the duty to comply with the guardrailrequirement is suspended. cf. Setterlin & Sons Co., 76 OSAHRC 53\/D8, 4BNA 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 theabsence of guardrails is vacated.The Secretary further alleged that the midrail was improperly installedon the scaffold. The standard, 29 C.F.R. ? 1926.451(d)(10), requiresguardrails to be approximately 42 inches high and that a midrail of1-x-6-inch lumber (or other material providing equivalent protection) beinstalled. A midrail was installed, but it was not properly aligned.Exhibit 6 reflects that the top rail and midrail meet at the thirdsupport bracket from the right. Foti argues that Heard at no timemeasured the distance between the midrails and the floor of the scaffoldand that his testimony that \”the midrails were not placed ‘midway’between the top rail and the floor of the scaffold was based not uponexact measurement but rather upon mere speculation from ground-basedobservation.\”The photograph of the scaffold, exhibit 6, clearly reflects that it wasunnecessary to measure the midrail to conclude that it was not placedmidway between the top rail and the floor. At the third post, themidrail is within one board width of the top rail. Since 2-x-4-inchboards were used for guardrails and midrails, it is clear that the topof the midrail at that point was only one 4- inch board width below theguardrail. Hill testified that he was aware that the guardrails were tobe placed at a height of 42 inches and the midrail at 21 inches butadded 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 ispositioned too far from the midpoint to conclude there was compliancewith the midrail requirement. A violation for improperly locatedmidrails 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 theprotections and obligations provided by the Act. The standard requiresthat the notice be posted at each establishment. J. L. Foti, presidentof J. L. Foti Construction Company, Inc., testified that he had a stackof the required OSHA notices at his office and that it was companypolicy that all trailers sent to a jobsite have a number of thingsposted, including the required notice (Tr. 183). Foti argues that Heardmade only a cursory inspection to determine whether the notice wasposted and that his inspection was insufficient to establish the absenceof the notice.During the course of his inspection, Heard stuck his head inside Foti’strailer at the site on September 29, 1983, and October 4, 1983, and didnot see an OSHA notice. He did not enter the trailer since no one waspresent in the trailer. He conceded that he did not inform Hill thatthere was no notice inside the trailer (Tr. 57-59). Foti argues that itwas physically impossible for Heard to ascertain that the notice posted.It is argued that Heard had a view of only three walls of the interiorof the trailer and it is suggested, but not established by facts ofrecord, that the notice could have been posted on the wall whichcontained the door opening.There is no evidence to conclude that Heard did not have an adequateview of the interior of the trailer. The suggestion that he may not haveseen the wall which contained the door opening is speculation and notestablished fact. More damaging to Foti’s case is the fact that itoffered no evidence to establish that the notice was posted. Hill neverstated 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’tsomething 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’sjob details. His testimony in no way disputes Heard’s statement that thenotice was not posted. The violation had been established by thepreponderance 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 section17(k) of the Act.[[6\/]] This section requires the following two findingsbe made prior to determining that a violation constitutes a seriousviolation: (1) substantial probability that death or serious physicalharm could result from the violation, and (2) that the employer knew orwith the exercise of reasonable diligence could have known of thepresence of the violation. The evidence conclusively shows that Fotiknew of the conditions.The working platform of the scaffold was approximately 14 feet inheight, except at the southern end. There was a 6-foot excavation at thesouthern end and employees on that end of the scaffold were exposed to afall of approximately 20 feet. A fall from these heights would certainlybe expected to result in death or serious physical harm. The violationswere serious._DETERMINATION OF PENALTIES_The last issue involves the determination of an appropriate penalty forthe violations. While the Secretary can propose a penalty, it is theReview Commission in all contested cases that has the authority toassess civil penalties for violations of the Act. The determination ofan appropriate penalty is within the discretion of the ReviewCommission. 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 thebusiness of the employer, the gravity of the violation, the employer’sgood faith, and the history of previous violations.The scaffold was supported by concrete blocks. At the time of theinspection, there were three employees on the scaffold. In the event thescaffold had collapsed, the three employees would have fallen at least14 feet. There was a good possibility that the two employees on the endwould have fallen into the excavated area, a distance of approximately20 feet. There is no doubt that Foti, in good faith, believed thescaffold was stable. A penalty of $180 is assessed for the violation of29 C.F.R. ? 1926.451(a)(2).The midrails on the scaffold were improperly constructed, leaving anarea large enough for employees to fall through in the event they fellalong the edge of the scaffold. Three employees were exposed to thehazardous condition. The amount of time the employees were on thescaffold is unknown. A penalty of $50 is assessed for the improperlyaligned midrails._FINDINGS OF FACT_1. J. L. Foti Construction Company, Inc. (\”Foti\”), is a masonrycontractor that generally employs 25 or fewer persons (Tr. 178). It hasbeen in business since 1963 (Tr. 169).2. Foti was a subcontractor on the construction of a waste watertreatment plant located in Willoughby, Ohio. It had the contract for themasonry work (Tr. 129, 170).3. On September 29, 1983, Safety Specialist Eugene E. Heard received atelephone call around 1:15 p.m. The caller advised him that unsafescaffolding was being used at a construction site across from the LostNation Airport, Willoughby, Ohio. According to the caller, there was animminent danger of someone falling 40 feet (Tr. 9-10, 11, 53). Thecaller 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 andlooked around to find out what construction was being performed. Hearrived at the airport around 2:30 p.m. (Tr. 12, 53). The work siteconsisted of a water treatment plant with various buildings andexcavations (Tr. 12, 128-129).5. Upon arriving at the site, Heard went to the general contractor’sfield office, identified himself to the general superintendent andindicated the purpose of his visit was to investigate the complaintconcerning unsafe scaffolding (Tr. 13, 53). He received a list ofcontractors at the job from the job superintendent (Tr. 13).6. Heard did not hold an opening conference with any employee of Foti atthe time of his discussion with the job superintendent. As he proceededwith his inspection of the site on September 29, 1983, he met RobertHill, Foti’s foreman. He presented his credentials to Hill (Tr. 14, 54,128), and offered Hill an opportunity to accompany him on theinspection[[8\/]] (Tr. 15).7. Heard had permission from the general contractor to conduct aninspection but did not have an express consent from any employee of Fotior 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, andreturned on October 4, 1983. He did not have sufficient time onSeptember 29, 1983, to cover the complete site or talk to all thesubcontractors (Tr. 15, 58, 59).10. When Heard returned on October 4, 1983, he reported to the jobsuperintendent for the general contractor (Tr. 60, 111, 113).11. A closing conference was held by Heard with J.L. Foti, president ofFoti Construction, by telephone on October 12, 1983 (Tr. 41-42, 97-98).12. On September 29, 1983, and October 4, 1983, Heard stuck his headinside the Foti trailer at the site and did not see an OSHA noticeinforming employees of the protections and obligations provided for inthe 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 wasissuing (Tr. 57- 58).13. Foti had a stack of OSHA notices at its office. Company policyrequires 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 buildingthe brick wall at the west side of the building (Tr. 32, 38). Threeemployees were on the scaffold (Ex. 6; Tr. 99-100, 138).15. No guardrails were installed on the south end of the scaffoldlocated on the west side of the Chem-Feed building. Guardrails andmidrails along the side of the scaffold were composed of 2-inch by4-inch boards. The guardrail and midrail were within one 2-x-4-inchboard 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. Threeemployees 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’sjob foreman, Robert Hill, was aware that guardrails were to be erectedat 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 feetwithin 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 ofthe excavation, employees of Foti were concerned of an erosion orcollapse of the wall in the event of a rain (Tr. 180).20. In order to protect the southern end of the scaffold against acollapse, a stack of hollow concrete blocks, approximately six feethigh, was placed in the excavation in an effort to provide support forthe scaffold (Ex. 5, 6; Tr. 31, 94, 143, 144-145, 180-181). The blockswere 8 inches by 16 inches (Tr. 142) and were resting on the concretefooting in the excavation (Tr. 142-143, 152). The blocks were notcemented 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 awayfrom the wall and run diagonally so that the other end rested on thestack of concrete blocks (Ex. 5; Tr. 31).22. The last two legs of the southern end of the scaffold along the wallrested on a 2-x-10-inch board which had been placed on concrete blocksunder the legs. The end of the board rested on the I-beam on the 6-footstack of concrete blocks (Ex. 5; Tr. 85, 153).23. The board on the concrete blocks and the I-beam were used in aneffort to prevent the legs of the scaffold falling in the event the wallof the excavation collapsed (Tr. 144-145).24. The working surface of the scaffold was approximately 14 feet aboveground level except at the south end. As a result of the 6-footexcavation, the south end of the scaffold was approximately 20 feetabove ground level (Ex. 5, 6; Tr. 32-33, 38, 39).25. Foti owned and used a specially manufactured buggy to transportbrick 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 onboth sides except for a small area at the top. The belt and pulley wasunguarded except by its location (Ex. 2-4; Tr. 25).26. The belt and pulley and chain and sprocket were the same as when thebuggies 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 liftor push down on one handle the other follows in the same manner. Theleft handle, as the operator faces the buggy, is the throttle. Thethrottle is similar to that on a motorcycle. The right handle is a deadhandle. The buggy moves forward or backwards at walking speed by raisingand 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 thehandle bar. If the operator lets go of both handles, the buggy willautomatically stop (Tr. 21).29. The chain and sprocket turn only when the buggy is moving. It doesnot turn when the handle bar is in the neutral position (Tr. 29, 71).The belt and pulley operate when necessary to maintain hydraulicpressure 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 thehandle bar (Ex. 3; Tr. 26, 28). The lever controls the hydraulic valveswhich in turn control the raising and lowering of the load upon theforks (Tr. 26).32. Heard measured a distance of 14 inches from the lift handle bar tothe 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 thehandle is in a raised position, there is a distance of 18 inches fromthe 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 tothe 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 thesprocket and chain drive. He measured a distance of 10 inches from thelever to the belt and pulley (Tr. 27).35. The buggy is used primarily on concrete floors inside the interiorof a building (Tr. 133-134, 172).36. Foti has used the buggies since its inception in 1963. During thistime, 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 businessaffecting commerce within the meaning of section 3(5) of the Act.2. Foti, at all times material hereto, was subject to the requirementsof the Act and the standards promulgated thereunder. The Commission hasjurisdiction 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 themoving parts of the West brick buggy were not exposed to contact by theoperator and did not otherwise create a hazard.4. Foti was in violation of 29 C.F.R. ? 1926.451(3)(2) since concreteblocks were used to support the scaffold at the west wall of theChem-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 havingimproperly aligned midrails on the scaffold at the west wall of theChem-Feed building. It was not in violation of the standard for having amissing guardrail since the rail had been removed as part of thedismantling process to erect another tier of scaffold. A penalty of $50is assessed for the midrail violation.6. Foti was in violation of 29 C.F.R. ? 1903.2(a)(1) for failure to havethe 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 isORDERED: 1. That item one of the serious citation and the penaltyproposed 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 spacedmidrails; 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; and5. 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. BURROUGHSJudgeFOOTNOTES:[[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 equipmentshall be guarded if such parts are exposed to contact by employees orotherwise create a hazard. Guarding shall meet the requirements as setforth 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, andcapable of carrying the maximum intended load without settling ordisplacement. Unstable objects such as barrels, boxes, loose brick, orconcrete 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 2×4 inches (or other materialproviding equivalent protection), and approximately 42 inches high, witha midrail of 1×6 inch lumber (or other material providing equivalentprotection), and toeboards, shall be installed at all open sides andends 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 beinstalled in accordance with paragraph (a)(6) of this section.[[4\/]] The photograph introduced as exhibit 6 shows an employee wearinga green shirt that is two scaffold lengths from the end. Heard testifiedthat the brick on the north end of the scaffold were 20 feet from theemployee 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 befurnished by the Occupational Safety and Health Administration, U. S.Department of Labor, informing employees of the protections andobligations provided for in the Act, and that for assistance andinformation, including copies of the Act and of specific safety andhealth standards, employees should contact the employer or the nearestoffice of the Department of Labor. Such notice or notices shall beposted by the employer in each establishment in a conspicuous place orplaces where notices to employees are customarily posted. Each employershall 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 toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof 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 penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.[[8\/]] Hill testified that he did not remember being invited to walkaround the site, but he did not deny that he might have been given theopportunity (Tr. 130).”