“Docket No. 83-1126 SECRETARY OF LABOR, Complainant, v. J. L. FOTI CONSTRUCTION COMPANY, Respondent.OSHRC Docket No. 83-1126DECISIONBefore: BUCKLEY, Chairman; WALL, Commissioner. BY THE COMMISSION:This case is here on remand from the decision of theUnited States Court of Appeals for the Sixth Circuit in J.L. Foti Construction Co. v.OSHRC, No. 85-3013 (6th Cir. May 19, 1986)(unpublished decision). In accordance with thatdecision, and with respect to the Secretary of Labor’s allegation that J.L. FotiConstruction Company violated 29 C.F.R. ? 1926.451(a)(2) by using concrete blocks tosupport a scaffold, this case is remanded to Administrative Law Judge James D. Burroughs\”for a factual finding on the issue of the stability of the scaffold’s [concreteblock] 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 ORDERBurroughs, Judge: Respondent, J. L. Foti Construction, Inc.(\”Foti\”), a masonry contractor, contests a serious and \”other\”citations issued to it on October 13, 1983. The citations were issued as a result of aninspection conducted by OSHA Compliance Officer Eugene E. Heard (\”Heard\”) onSeptember 29, 1983, and October 4, 1983. The inspection was commenced after Heard receiveda telephone call complaining that an unsafe scaffold, approximately 40 feet high, was indanger 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. Item one alleges thatthe \”West Brick Buggy\” failed to comply with 29 C.F.R. ? 1926.300(b)(2), whichrequires that moving machine parts exposed to contact by employees be guarded. Item twoalleges that the scaffold at the west wall of the \”Chem-Feed Building\” failed tocomply with 29 C.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 west wall of the\”Chem-Feed Building\” failed to comply with 29 C.F.R. ? 1926.451(d)(10), whichrequires guardrails on all open sides of scaffolds more than ten feet above adjoiningground or floor. A total penalty of $540 was proposed for the alleged violations.The \”other\” citation alleged a violation oftwo separate items. At the commencement of the hearing, counsel for the Secretary moved tovacate item two, which alleged a violation of 29 C.F.R. ? 1926.451(a)(2). The motion wasgranted (Tr. 4-7). The remaining \”other\” item in contest involves the allegationthat Foti failed to post the required OSHA notice in violation of 29 C.F.R. ?1903.2(a)(1).THE INSPECTION DID NOT VIOLATE FOTI’S CONSTITUTIONALRIGHTS TO PRIVACY, THE FOURTH AMENDMENT TO THE U. S. CONSTITUTION OR ITS CIVIL RIGHTSFoti argues that the inspection by Heard violated its constitutional rights to anexpectation of privacy, the Fourth Amendment to the United States Constitution and itscivil rights.\u00a0 It is undisputed that an employer may insist upon a warrant beforeentry is made upon its premises by an OSHA compliance officer.\u00a0 Marshall v.Barlow’s, Inc., 436 U. S. 307, 98 S. Ct. 1816 (1978).\u00a0 At the same time, a searchconducted pursuant to a voluntarily obtained consent comes within an exception to thegeneral warrant requirement of the fourth amendment and is wholly valid. Schneckloth v.Bustamonte, 412 U. S. 218, 93 S. Ct. 2041 (1973).\u00a0 In this case, Foti’s argument mustbe rejected since there is no evidence that consent was not obtained from the generalcontractor and no evidence that Foti’s foreman at the site objected to the inspection.\u00a0 There has also been no showing that Foti, as a subcontractor, had a reasonableexpectancy of privacy at the site.Heard arrived at the site around 2:30 p.m. onSeptember 29, 1983. Upon his arrival, he located the trailer of the general contractor,Walbridge Aldinger, and presented his credentials to Mr. De Fauw, superintendent for thegeneral contractor. Heard explained the purpose of his visit and then proceeded to conductan inspection. During his walk around the site on September 29, 1983, Heard met RobertHill, Foti’s bricklayer foreman at the site. He presented his credentials to Hill,explained the purpose of his visit, and offered him an opportunity to accompany him on theinspection (Tr. 12-15). According to Heard, neither De Fauw nor Hill objected to theinspection (Tr. 15). Hill testified that he did not remember being invited to participatein the inspection but did not deny he was given the opportunity (Tr. 130).Hill acknowledged that Heard met him during theinspection but had no recollection of Heard saying anything that would constitute anopening conference (Tr. 129-130). He made no statements that disputed Heard’s testimonythat De Fauw and Hill raised no objection to the inspection, and Foti does not argue thatpermission to enter and inspect the site was denied by the job superintendent or Hill.Foti does argue that Heard \”at no time testified that he had consent to enter thesite.\”Heard did not dispute Foti’s assertion that expresspermission was not obtained 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 to be on theconstruction site. Heard testified that upon arrival at the site, he presented hiscredentials to De Fauw, explained why he was at the site and received a list ofsubcontractors from De Fauw (Tr. 13). He further testified that no employee of the generalcontractor or Foti objected to the inspection (Tr. 15). Since no objection was raisedagainst Heard conducting an inspection, there was at least an implied consent on the partof the general contractor and Foti. Cooperation by the general contractor is reflected inHill’s testimony that, when he observed Heard, he was walking with the job superintendentand the carpenter steward (Tr. 129).In administrative inspections, the courts haveadopted a standard of consent that is less stringent than that required for criminalsearches. In United States v. Thriftmart, Inc., 429 F.2d 1006, 1010 (9th Cir. 1970), thecourt in ruling on the validity of an administrative inspection stated:In conclusion, we hold that in the context of the exclusionary rule a warrantlessinspection search of business premises is reasonable when entry is gained not by force ormisrepresentation, but is, with knowledge of its purpose, afforded by manifestation ofassent.A compliance officer does not have to inform theemployer of the right to 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 othergrounds, 683 F.2d 361 (11th Cir. 1982). Heard entered the site, identified himself to thejob superintendent, explained the purpose of his visit, asked for a list of subcontractorsand proceeded to conduct the inspection. When he encountered Hill on the site, he againpresented his credentials and explained the purpose of his visit. The failure to object,at the least, constituted implied consent to the inspection. The consent need not beexpress and the failure to object to a known search constitutes consent. There is noevidence of intimidation, coercion or misrepresentation that would invalidate the consentin this case. The failure of Hill to object to the inspection resulted in an impliedconsent to the inspection; therefore, Barlow’s, Inc., does not affect the validity of theinspection.Assuming arguendo that there was no implied consenton 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 to protect againstofficial invasion of privacy and the security of property. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725 (1960). Since Foti seeks to challenge the legality of the inspection(construed as an illegal search by Foti), it must establish that it was the victim of aninvasion of privacy. Elbel v. United States, 364 F.2d 127 (10th Cir. 1966). Since a jointoccupant assumes the risk of his co-occupant exposing their common private areas to such asearch, there is no reasonable expectation of privacy under such circumstances. UnitedStates v. Sumlin, 567 F.2d 684 (6th Cir. 1977). The general contractor had authority overthe inspected premises. Foti was a subcontractor working under the general contractor. Theconsent of the general contractor was voluntary and constituted valid consent to thepresence of the compliance officer where the work of Foti’s employees could be viewed.A general contractor may consent to the inspection ofa common work site where a subcontractor is working. Havens Steel Co., 78 OSAHRC 53\/C11, 6BNA OSHC 1740, 1978 CCH OSHD ? 22,875 (No. 15538, 1978). The job superintendent for thegeneral contractor exercised control over the premises and his consent and participationin the inspection with Heard was valid and binding against Foti. The inspection wasconstitutionally permissible.ALLEGED VIOLATION OF 29 C.F.R. ? 1926.300(b)(2).The Secretary alleged that Foti violated 29 C.F.R. ? 1926.300(b)(2) [[1\/]]by failing to adequately guard a belt and pulley and chain and sprocket on a West BrickBuggy used to carry and lift brick in the Chem-Feed building. The buggy has been used byFoti since its inception in 1963 and is in wide use by masonry contractors in theCleveland 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 of the motor assemblythat provided some protection.The standard requires guarding where the chain and sprocket and belt and pulley \”areexposed to contact by employees or otherwise create a hazard.\” Foti submits that theSecretary has failed to meet the burden of proof imposed by the standard. It argues thatemployees were not exposed to the partially guarded moving parts of the buggy and that nohazard was created. The Secretary contends that the proximity of the hands to the movingparts and the fact that the buggy can be operated with one hand establish exposure to ahazard.The left handle of the buggy is 14 inches from theexposed upper chain and 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 handle bar is in neutralposition. The right handle would be a greater distance from the moving parts. Thehydraulic control level is 11 inches from the chain and sprocket and 10 inches from thebelt and pulley. The Secretary argues that the closeness of the left hand to the movingparts establishes a hazard, citing F. H. Lawson Co., 80 OSAHRC 19\/A14, 8 BNA OSHC 1063,1980 CCH OSHD ? 24,277 (No. 12883, 1980), appeal dismissed, February 9, 1981 (6th Cir.,No. 80-3277).The Secretary makes much of the fact that the buggymay be operated with one hand. In his view, this would leave one hand in an exposedposition. While the bar can be raised or lowered with one hand, it would have to be movedwith the left handle if the buggy is to be moved. The throttle is on the left handle. Ifthe left hand is used to raise or lower the bar, the right hand would be located too faraway to be exposed to the moving parts. The operator would have to deliberately place hisright hand in the moving parts in order to have his hand injured. The chain and sprocketonly turn when the buggy is moving. Release of the handle automatically stops the turn ofthe chain and sprocket. The left hand would be on the handle at anytime the buggy ismoving. As a practical matter, it is doubtful the buggy would ever be operated with onehand since it is steered by the handles. It would be awkward operating and trying to steerwith the left hand while a pallet of brick, approximately 3,500 pounds, is being moved bythe buggy.The belt and pulley is operated when necessary tomaintain hydraulic pressure for the lift mechanism of the buggy. The location of the beltand pulley within the motor assembly provides sufficient protection to the operator. Inorder to reach the belt and pulley, there would have to be some deliberate attempt to doso by the operator. The location prevents any reasonable accidental contact.While not determinative of the issue, the pastoperating record of the buggy shows that injuries have not been a problem. Hill testifiedthat he had approximately 20 years’ experience with the buggy (Tr. 132). During thisperiod of time, he has known of no injuries resulting from the belt drive or sprocket andchain (Tr. 134). John A. Fees, safety and education director for the ConstructionEmployer’s Association, testified that he had been familiar with the buggy forapproximately 30 years and was unaware of anyone being injured while operating them (Tr.157). J. L. Foti testified that he had used the same make of buggy since 1960 and wasaware of their history (Tr. 173). During the time his company has used the buggies, it hashad no injuries from their use. Foti was unaware of any injuries resulting from their useby other contractors (Tr. 173- 174). The alleged violation is vacated.ALLEGED VIOLATION OF 29 C.F.R. ? 1926.451(a)(2)The Secretary submits that Foti violated 29 C.F.R. ? 1926.451(a)(2) [[2\/]]by using concrete blocks to anchor one end of the scaffold at the Chem-Feed building. Thesouthwestern leg of the scaffold located at the west wall of the building was supported bya 2-x-10 inch board which rested on concrete blocks along the brick wall. The end of theboard extended beyond the legs of the scaffold and rested on an I-beam. The I- beam. TheI-beam rested on an interlocked stack of concrete block approximately six feet in height.The I-beam ran at an angle to the concrete block and 2-x-10 board. The leg of the scaffoldfarthest from the brick wall rested on the I-beam. This method of support was pursued byemployees of Foti because the end of the scaffold was within inches of an open excavationand, in the event of a rain, there was fear the excavation wall would collapse.Foti argues that there was nothing unstable about themanner in which the 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 any way test thescaffold for stability. Heard testified that in his opinion the scaffold was unstable.Foti disputes Heard’s opinion and refers to witnesses on its behalf that concluded thescaffold resting on the concrete blocks was stable. The standard prohibits the use ofconcrete blocks; consequently, it is not necessary to weigh the differences of opinionamong the witnesses. In Constructora Maza, Inc., 77 OSAHRC 213\/B9, 6 BNA OSHC 1208,1977-78 CCH OSHD ? 22,421 (No. 12434, 1977), the Commission rejected the argument that ascaffold supported on concrete blocks was safe. The Commission noted a difference betweenthe gravity of a violation and the presence of the violative conditions. The Commissionconcluded that 29 C.F.R. ? 1926.451(a)(2) was mandatory and that concrete blocks arespecifically prohibited from being used to support scaffolds or planks. As in ConstructoraMaza, Inc., there is no dispute over the fact that Foti’s scaffold was supported byconcrete block. The violation is affirmed.Foti argues that the \”use of concrete block tosupport a scaffold does not in and of itself establish a per se violation unless the blockis used in an unstable manner,\” relying on the rationale of Judge Cecil L. Cutler inFoti Construction Co., Inc., 1977-78 CCH OSHD ? 22,346 (Nos. 76-4429, 76- 5049), reviewedby Commission on other issues, 86 OSAHRC 36\/C10, 8 BNA OSHC 1281, 1980 CCH OSHD ? 24,421(1980). One of the issues in that case involved an alleged violation of 29 C.F.R. ?1926.451(a)(2) for using concrete blocks under planks upon which a scaffold was supported.The facts disclosed that the planking rested on angle iron inserted three inches in thewall. The angle iron was supported by concrete blocks. Judge Cutler determined that\”[t]he purpose of the concrete blocks was not for support but to take some of thespring out of the angle iron.\” The specific finding by Judge Cutler that the concreteblocks were not intended as support distinguishes that case from the present facts.ALLEGED VIOLATION OF 29 C.F.R. ? 1926.451(d)(10)The Secretary alleged that Foti violated 29 C.F.R. ? 1926.451(d)(10) [[3\/]]by failing to install guardrails on the southern end of the scaffold located on the westside of the Chem-Feed building and for improperly locating the midrails where guardrailswere installed. There is no dispute over the fact that the guardrail at the southern endof the scaffold was missing. The missing rail is clearly reflected in the photographintroduced as exhibit 6. Foti claims that it was in the process of removing the guardrailsand had, just prior to the inspection, removed the guardrail at the south end.Hill, in looking at a photograph of the scaffold,acknowledged that three of Foti’s employees were on the scaffold but testified that themen were getting ready to leave the area because they had finished building the wall ashigh as they could from that scaffold (Tr. 138-139). According to Hill, the end guardrailhad been removed in the dismantling process so that another tier of scaffold could beerected (Tr. 140-141, 150). While Heard cited Foti for not having a guardrail on the endof the scaffold, he testified that he did not know if the guardrails were being removed sothat another tier of scaffold could be erected (Tr. 100). There is no evidence to disputeHill’s claim that the guardrails were being dismantled.The scaffold was erected to be used in building thebrick wall. At the time of the inspection, there was no evidence of any brick on the southend of the scaffold (none is reflected in exhibit 6). Heard testified that he observedpallets of brick being loaded on the north end of the scaffold, but the location of thebrick was a good distance from the south end of the scaffold.[[4\/]] One of the twoemployees in the photograph introduced as exhibit 6 appears to have a piece of 2×4 in hishand, which would be consistent with the testimony of Hill that they were dismantling theguardrail at that end of the scaffold in order to erect another tier of scaffold. It isclear from the photograph that they are not laying brick.The evidence supports Foti’s argument that theemployees were in the process of dismantling the guardrails at the time of the inspection.It was necessary to remove the guardrails prior to erecting another tier of scaffold.Where it is necessary to remove guardrails to perform specific work, the Commission hasheld that the duty to comply with the guardrail requirement is suspended. cf. Setterlin& Sons Co., 76 OSAHRC 53\/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD ? 20,682 (No. 7377,1976); Dic-Underhill, A Joint Venture, 75 OSAHRC 35\/F10, 2 BNA OSHC 1651, 1974- 75 CCHOSHD ? 19,328 (No. 2232, 1975). The alleged violation as to the absence of guardrails isvacated.The Secretary further alleged that the midrail wasimproperly installed on the scaffold. The standard, 29 C.F.R. ? 1926.451(d)(10), requiresguardrails to be approximately 42 inches high and that a midrail of 1-x-6-inch lumber (orother material providing equivalent protection) be installed. A midrail was installed, butit was not properly aligned. Exhibit 6 reflects that the top rail and midrail meet at thethird support bracket from the right. Foti argues that Heard at no time measured thedistance between the midrails and the floor of the scaffold and that his testimony that\”the midrails were not placed ‘midway’ between the top rail and the floor of thescaffold was based not upon exact measurement but rather upon mere speculation fromground-based observation.\”The photograph of the scaffold, exhibit 6, clearlyreflects that it was unnecessary to measure the midrail to conclude that it was not placedmidway between the top rail and the floor. At the third post, the midrail is within oneboard width of the top rail. Since 2-x-4-inch boards were used for guardrails andmidrails, it is clear that the top of the midrail at that point was only one 4- inch boardwidth below the guardrail. Hill testified that he was aware that the guardrails were to beplaced at a height of 42 inches and the midrail at 21 inches but added that \”we don’talways hit through an ant’s eyelash for 22 and 21\” (Tr. 142). A midrail located one4-inch board from the guardrail is positioned too far from the midpoint to conclude therewas compliance with the midrail requirement. A violation for improperly located midrailshas 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\/]] byfailing to post a required OSHA notice informing employees of the protections andobligations provided by the Act. The standard requires that the notice be posted at eachestablishment. J. L. Foti, president of J. L. Foti Construction Company, Inc., testifiedthat he had a stack of the required OSHA notices at his office and that it was companypolicy that all trailers sent to a jobsite have a number of things posted, including therequired notice (Tr. 183). Foti argues that Heard made only a cursory inspection todetermine whether the notice was posted and that his inspection was insufficient toestablish the absence of the notice.During the course of his inspection, Heard stuck his head inside Foti’s trailer at thesite on September 29, 1983, and October 4, 1983, and did not see an OSHA notice. He didnot enter the trailer since no one was present in the trailer. He conceded that he did notinform Hill that there 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 thatHeard had a view of only three walls of the interior of the trailer and it is suggested,but not established by facts of record, that the notice could have been posted on the wallwhich contained the door opening.There is no evidence to conclude that Heard did nothave an adequate view of the interior of the trailer. The suggestion that he may not haveseen the wall which contained the door opening is speculation and not established fact.More damaging to Foti’s case is the fact that it offered no evidence to establish that thenotice was posted. Hill never stated that the notice was posted. He testified (Tr. 147):Q. Does Foti have them [OSHA notices] around atvarious places?A. He has had them and I don’t know that we didn’thave one. It isn’t something I run in to look to see if I have it.It is obvious that the notice did not carry a highpriority in Hill’s job details. His testimony in no way disputes Heard’s statement thatthe notice was not posted. The violation had been established by the preponderance of theevidence.NATURE OF VIOLATIONSThe violations of 29 C.F.R. ? 1926.451(a)(2) and 29 C.F.R. ?1926.451(d)(10) were classified as serious within the meaning of section 17(k) of theAct.[[6\/]] This section requires the following two findings be made prior to determiningthat a violation constitutes a serious violation: (1) substantial probability that deathor serious physical harm could result from the violation, and (2) that the employer knewor with the exercise of reasonable diligence could have known of the presence of theviolation. The evidence conclusively shows that Foti knew of the conditions.The working platform of the scaffold wasapproximately 14 feet in height, except at the southern end. There was a 6-foot excavationat the southern end and employees on that end of the scaffold were exposed to a fall ofapproximately 20 feet. A fall from these heights would certainly be expected to result indeath or serious physical harm. The violations were serious.DETERMINATION OF PENALTIESThe last issue involves the determination of an appropriate penalty for theviolations. While the Secretary can propose a penalty, it is the Review Commission in allcontested cases that has the authority to assess civil penalties for violations of theAct. The determination of an appropriate penalty is within the discretion of the ReviewCommission. Long Manufacturing Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977); WesternWaterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978). In assessing penalties forviolations of the Act, section 17(j) (7) of the Act requires the Commission to considerthe size of the business 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 thetime of the inspection, there were three employees on the scaffold. In the event thescaffold had collapsed, the three employees would have fallen at least 14 feet. There wasa good possibility that the two employees on the end would have fallen into the excavatedarea, a distance of approximately 20 feet. There is no doubt that Foti, in good faith,believed the scaffold was stable. A penalty of $180 is assessed for the violation of 29C.F.R. ? 1926.451(a)(2).The midrails on the scaffold were improperlyconstructed, leaving an area large enough for employees to fall through in the event theyfell along the edge of the scaffold. Three employees were exposed to the hazardouscondition. The amount of time the employees were on the scaffold is unknown. A penalty of$50 is assessed for the improperly aligned midrails.FINDINGS OF FACT1. J. L. Foti Construction Company, Inc. (\”Foti\”), is a masonrycontractor that generally employs 25 or fewer persons (Tr. 178). It has been in businesssince 1963 (Tr. 169).2. Foti was a subcontractor on the construction of a waste water treatmentplant located in Willoughby, Ohio. It had the contract for the masonry work (Tr. 129,170).3. On September 29, 1983, Safety Specialist Eugene E. Heard received atelephone call around 1:15 p.m. The caller advised him that unsafe scaffolding was beingused at a construction site across from the Lost Nation Airport, Willoughby, Ohio.According to the caller, there was an imminent danger of someone falling 40 feet (Tr.9-10, 11, 53). The caller did not indicate which employers were at the site (Tr. 11,51-52).4. Immediately after the call, Heard went to the Lost Nation Airport andlooked around to find out what construction was being performed. He arrived at the airportaround 2:30 p.m. (Tr. 12, 53). The work site consisted of a water treatment plant withvarious buildings and excavations (Tr. 12, 128-129).5. Upon arriving at the site, Heard went to the general contractor’s fieldoffice, identified himself to the general superintendent and indicated the purpose of hisvisit was to investigate the complaint concerning unsafe scaffolding (Tr. 13, 53). Hereceived a list of contractors at the job from the job superintendent (Tr. 13).6. Heard did not hold an opening conference with any employee of Foti at thetime of his discussion with the job superintendent. As he proceeded with his inspection ofthe site on September 29, 1983, he met Robert Hill, Foti’s foreman. He presented hiscredentials to Hill (Tr. 14, 54, 128), and offered Hill an opportunity to accompany him onthe inspection[[8\/]] (Tr. 15).7. Heard had permission from the general contractor to conduct an inspectionbut did not have an express consent from any employee of Foti or any of the subcontractors(Tr. 54-55).8. No one from the general contractor of Foti objected to the inspection (Tr.15).9. Heard did not complete his inspection on September 29, 1983, and returnedon October 4, 1983. He did not have sufficient time on September 29, 1983, to cover thecomplete site or talk to all the subcontractors (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 of FotiConstruction, by telephone on October 12, 1983 (Tr. 41-42, 97-98).12. On September 29, 1983, and October 4, 1983, Heard stuck his head insidethe Foti trailer at the site and did not see an OSHA notice informing employees of theprotections and obligations provided for in the Act. He did not enter the trailer since noone 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 policy requiresthat the notices be placed in any trailers sent to a work site (Tr. 182-183).14. A scaffold was located on the west side of the Chem-Feed building (Ex. 5,6; Tr. 20, 30). It was used by Foti’s bricklayers in building the brick wall at the westside of the building (Tr. 32, 38). Three employees were on the scaffold (Ex. 6; Tr.99-100, 138).15. No guardrails were installed on the south end of the scaffold located onthe west side of the Chem-Feed building. Guardrails and midrails along the side of thescaffold were composed of 2-inch by 4-inch boards. The guardrail and midrail were withinone 2-x-4-inch board of each other at the third post from the south end of the scaffold(Ex. 6; Tr. 20, 40, 109-110).16. Employees of Foti had been working off the scaffold platform. 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’s jobforeman, Robert Hill, was aware that guardrails were to be erected at a height of 42inches 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 of theexcavation, employees of Foti were concerned of an erosion or collapse of the wall in theevent of a rain (Tr. 180).20. In order to protect the southern end of the scaffold against a collapse,a stack of hollow concrete blocks, approximately six feet high, was placed in theexcavation in an effort to provide support for the scaffold (Ex. 5, 6; Tr. 31, 94, 143,144-145, 180-181). The blocks were 8 inches by 16 inches (Tr. 142) and were resting on theconcrete footing in the excavation (Tr. 142-143, 152). The blocks were not cemented butwere stacked in an interlocking fashion (Ex. 5; Tr. 31-32, 98, 153).21. An I-beam was placed under the southern leg of the scaffold away from thewall and run diagonally so that the other end rested on the stack of concrete blocks (Ex.5; Tr. 31).22. The last two legs of the southern end of the scaffold along the wallrested on a 2-x-10-inch board which had been placed on concrete blocks under the legs. Theend of the board rested on the I-beam on the 6-foot stack of concrete blocks (Ex. 5; Tr.85, 153).23. The board on the concrete blocks and the I-beam were used in an effort toprevent the legs of the scaffold falling in the event the wall of the excavation collapsed(Tr. 144-145).24. The working surface of the scaffold was approximately 14 feet aboveground level except at the south end. As a result of the 6-foot excavation, the south endof the scaffold was approximately 20 feet above ground level (Ex. 5, 6; Tr. 32-33, 38,39).25. Foti owned and used a specially manufactured buggy to transport brick atthe construction site and elevate them to the scaffold (Ex. 1; Tr. 22, 61, 132). The chainand sprocket on the buggy was guarded on both sides except for a small area at the top.The belt and pulley was unguarded except by its location (Ex. 2-4; Tr. 25).26. The belt and pulley and chain and sprocket were the same as when 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 lift orpush down on one handle the other follows in the same manner. The left handle, as theoperator faces the buggy, is the throttle. The throttle is similar to that on amotorcycle. The right handle is a dead handle. The buggy moves forward or backwards atwalking speed by raising and lowering the handles (Ex. 1-4; Tr. 26, 29, 68, 134, 148-149).28. In order to operate the buggy, the operator must raise or lower thehandle bar. If the operator lets go of both handles, the buggy will automatically stop(Tr. 21).29. The chain and sprocket turn only when the buggy is moving. It does notturn when the handle bar is in the neutral position (Tr. 29, 71). The belt and pulleyoperate when necessary to maintain hydraulic pressure for the lift mechanism (Tr. 29).30. The buggy can be operated by one hand (Tr. 71-72).31. A lever is located slightly below and toward the center of the handle bar(Ex. 3; Tr. 26, 28). The lever controls the hydraulic valves which in turn control theraising and lowering of the load upon the forks (Tr. 26).32. Heard measured a distance of 14 inches from the lift handle bar to thechain and sprocket when the handle bar was in a neutral position, i.e., the handle bar wasneither raised or lowered (Tr. 27). When the handle is in a raised position, there is adistance of 18 inches from the edge of the closest handle to the open sprocket and chain(Ex. A; Tr. 70).33. Heard measured a distance of 12 inches from the left handle bar to thebelt and pulley when the handle bar was in a neutral position (Tr. 27).34. Heard measured a distance of 11 inches from the lever to the sprocket andchain drive. He measured a distance of 10 inches from the lever to the belt and pulley(Tr. 27).35. The buggy is used primarily on concrete floors inside the interior of abuilding (Tr. 133-134, 172).36. Foti has used the buggies since its inception in 1963. During this time,no injuries have resulted from the use of the buggies (Tr. 173- 174).CONCLUSIONS OF LAW1. Foti, at all times material hereto, was engaged in a business affectingcommerce within the meaning of section 3(5) of the Act.2. Foti, at all times material hereto, was subject to the requirements of theAct and the standards promulgated thereunder. The Commission has jurisdiction of theparties and of the subject matter herein.3. Foti was not in violation of 29 C.F.R. ? 1926.300(b)(2) since the movingparts of the West brick buggy were not exposed to contact by the operator and did nototherwise create a hazard.4. Foti was in violation of 29 C.F.R. ? 1926.451(3)(2) since concrete blockswere used to support the scaffold at the west wall of the Chem-Feed building; a penalty of$180 is assessed for the violation.5. Foti was in violation of 29 C.F.R. ? 1926.451(d)(10) for havingimproperly aligned midrails on the scaffold at the west wall of the Chem-Feed building. Itwas not in violation of the standard for having a missing guardrail since the rail hadbeen removed as part of the dismantling process to erect another tier of scaffold. Apenalty of $50 is assessed for the midrail violation.6. Foti was in violation of 29 C.F.R. ? 1903.2(a)(1) for failure to have theOSHA 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 penalty proposedfor the alleged violation issued to Foti on October 13, 1983, are vacated;2. That item two of the serious citation issued to Foti on October 13, 1983,is affirmed and a penalty of $180 is assessed for the violation;3. That item three of the serious citation Issued to Foti on October 13,1983, is vacated as to the guardrails and affirmed for improperly spaced midrails; apenalty of $50 is assessed for the midrail violation;4. That item one of the \”other\” citation issued to Foti on October13, 1983, is affirmed; and5. That item two of the \”other\” citation issued to Foti on October13, 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 otherreciprocating, rotating or moving parts of equipment shall be guarded if such parts areexposed to contact by employees or otherwise create a hazard. Guarding shall meet therequirements as set forth in American National Standards Institute, B15.1-1953 (R1958),Safety Code for Mechanical Power-Transmission Apparatus.[[2\/]] Section 1926.451(a)(2) C.F.R. provides:The footing or anchorage for scaffolds shall be sound, rigid, and capable of carrying themaximum intended load without settling or displacement. Unstable objects such as barrels,boxes, loose brick, or concrete blocks, shall be not used to support scaffolds or planks.[[3\/]] Section 1926.451(d)(10) of 29 C.F.R. provides:Guardrails made of lumber, not less than 2×4 inches (or other material providingequivalent protection), and approximately 42 inches high, with a midrail of 1×6 inchlumber (or other material providing equivalent protection), and toeboards, shall beinstalled at all open sides and ends on all scaffolds more than 10 feet above the groundor floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installedin accordance with paragraph (a)(6) of this section.[[4\/]] The photograph introduced as exhibit 6 showsan employee wearing a green shirt that is two scaffold lengths from the end. Heardtestified that the brick on the north end of the scaffold were 20 feet from the employeewearing the green shirt (Tr. 104).[[5\/]] Section 29 C.F.R. ? 1903.2(a)(1) provides:Each employer shall post and keep posted a notice or notices to be furnished by theOccupational Safety and Health Administration, U. S. Department of Labor, informingemployees of the protections and obligations provided for in the Act, and that forassistance and information, including copies of the Act and of specific safety and healthstandards, employees should contact the employer or the nearest office of the Departmentof Labor. Such notice or notices shall be posted by the employer in each establishment ina conspicuous place or places where notices to employees are customarily posted. Eachemployer shall take steps to insure that such notices are not altered, defaced, or coveredby other material.[[6\/]] Section 17(k) of the Act states:For purposes of this section, a serious violation shall be deemed to exist in a place ofemployment if there is a substantial probability that death or serious physical harm couldresult from a condition which exists, or from one or more practices, means, methods,operations, or processes which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation.[[7\/]] Section 17(j) of the Act provides:The Commission shall have authority to assess all civil penalties provided in thissection, giving due consideration to the appropriateness of the penalty with respect tothe size of the business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of previous violations.[[8\/]] Hill testified that he did not remember beinginvited to walk around the site, but he did not deny that he might have been given theopportunity (Tr. 130).”