“Docket No. 87-2007 SECRETARY OF LABOR. Complainant, v. SAL MASONRY CONTRACTORS, INC., Respondent.OSHRC Docket No. 87-2007DECISION BEFORE: FOULKE, Chairman; WISEMAN andMONTOYA, Commissioners. BY THE COMMISSION:Sal Masonry was the masonry contractorfor the building of Savage Hall, an academic building at Cornell University in Ithaca, NewYork. As a result of an inspection by Ralph Rose, a compliance officer for theOccupational Safety and Health Administration (\”OSHA\”), a citation was issuedwhich, as amended, alleged willful, as well as repeated and serious, violations of theladder and scaffolding standards at 29 C.F.R. ? 1926.451(a)(8), (a)(13), and (d)(10).Penalties of $10,000 were proposed for each of the three alleged violations.Sal Masonry contested the citation and ahearing was held before former Commission Administrative Law Judge Foster Furcolo. JudgeFurcolo found violations of each cited standard and characterized each violation asrepeated and serious. He assessed penalties of $200 each for the violations of section1926.451(a)(8) and (13) and $500 for the violation of section 1926.451(d)(10). Review wasdirected on the issues of: (1) Whether Sal Masonry violated section 1926.451(a)(13) byfailing to provide an access ladder or \”equivalent safe access\” to scaffolding,and, if so, whether that violation was willful; and (2) Whether the judge erred in holdingthat Sal Masonry’s violations of section 1926.451(a)(8) and (d)(10) were not willful.[[1]]For the reasons set forth below, we vacate that part of the citation alleging a violationof section 1926.451(a)(13), find that the violation of section 1926.451(a)(8) was notwillful, and find that the violation of section 1926.451(d)(10) was willful. We assess a$1000 penalty for the willful violation.Alleged Violation of Section1926.451(a)(13): Was A Ladder or Equivalent Safe Access Provided for Scaffolding?The Secretary alleges that Sal Masonryviolated section 1926.451(a)(13)[[2]] by failing to provide an access ladder or equivalentsafe access to employees who were seen climbing the frames and braces of scaffoldingerected inside an air intake shaft.To prove a violation of a standard, theSecretary must establish that: (1) the standard applies to the cited condition; (2) theemployer violated the terms of the standard; (3) its employees were exposed or had accessto the violative conditions; and (4) the employer had actual or constructive knowledge ofthe violation. E.g., Trumid Constr. Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD ?29,078, p. 38,859 (No. 86-1139, 1990).It is undisputed that the standard isapplicable, and the record is clear that employee exposure was shown. The parties disputewhether the terms of the standard were violated and whether the employer had knowledge ofthe allegedly violative conditions. The evidence on these issues is in direct conflict.Five of Sal Masonry’s employees orformer employees — Eugene DeLong, Samuel Swan, Dwayne Vorhes, Arthur White, and GaryStupke — testified that there was no ladder present to access the scaffolding. All fivealso testified that they sometimes accessed the scaffold by climbing it. Complianceofficer Rose testified that no ladder was present on the first day of the inspection.However, the next morning, after Rose saw an employee of Sal Masonry climbing thescaffolding, he asked company foreman Luke Renna why the employee was climbing thescaffolding. Rose testified that Renna answered, \”I don’t know. We had a ladder. Itmust be somebody took it.\” The company then sent its employees to look for a ladder,and they brought one back and positioned it for access to the scaffold.Company foreman Renna, labor foremanCraig Zullo, and project manager Don Judge all testified that they had never seen any oftheir employees climb the scaffolding. Renna and Zullo also testified that there was aladder at the site. Renna testified that the ladder was lying on the ground near the airintake shaft where the employees worked and that he had taken it down a few days beforethe compliance officer inspected the site because he did not want any of the college kidsclimbing it and getting hurt falling into the shaft. Zullo testified that the ladder waslying on the ground outside the air intake shaft, but he stated that it had never been putup because the employees preferred to access the scaffolding by using stairs and otherscaffolding.Judge’s DecisionThe judge concluded that \”[t]heevidence clearly established that there was no ladder\” present to access thescaffold. Instead of specifically stating what that evidence was, however, the judgemerely listed a series of transcript pages that he apparently believed contained testimonysupporting his conclusion. He did not specifically refer to any of the evidence presentedabove in framing his conclusions. Instead of separately considering whether the Secretaryproved that Sal Masonry had actual or constructive knowledge that a ladder was not presentto access the scaffolding, the judge resolved the knowledge issue as to all three of thealleged violations referred to in the direction for review by concluding that\”Respondent knew, or should have known, of all the alleged hazardous conditions. Allwere in plain sight or were admitted by supervisory personnel of the Respondent.\” Hisfinding was followed by an enumeration of the transcript pages which presumably containedthe evidence to support the finding.DiscussionTo establish that section 1926.451 (a)(13) was violated, the Secretary must show that no ladder was provided. The Secretary’sevidence demonstrates that there was no ladder and that employees climbed the scaffoldingto access their workplaces. The company’s evidence demonstrates that there was a ladderand that none of the company’s supervisors had seen any of their employees climb thescaffolding.In order to prove knowledge in thiscase, the Secretary must show that the company either knew or, with the exercise ofreasonable diligence, could have known that there was no ladder present to access thescaffolding. See Daniel Constr. Co., 10 BNA OSHC 1254, 1256, 1982 CCH OSHD ?25,840, p. 32,328 (No. 80-1224, 1981). The Secretary argues that she proved knowledge byshowing that certain of the company’s employees, and one of its supervisors, climbed thescaffolding and that foreman Renna witnessed one of the employees climbing it. Sal Masonryargues that there was no testimony that its supervisors knew that the ladder they hadpreviously placed at the job site had been removed.With the evidence in conflict, it wasnecessary for the judge to make credibility findings that specifically resolved theconflicting testimony. Generally, this requires a written analysis of the testimony,including reasons for the finding. See P & Z Co., 6 BNA OSHC 1189, 1192,1977-78 CCH OSHD ? 22,413, p.27,024 (No. 76-431, 1977). See also Asplundh Tree ExpertCo., 7 BNA OSHC 2074, 2078-79, 1980 CCH OSHD ? 24,147, pp.29,346-47 (No. 16162,1979). The judge failed to make such credibility findings here. This deficiency wouldordinarily result in the Commission remanding the case to the judge for furtherconsideration and explanation. See C. Kaufman, Inc., 6 BNA OSHC 1295, 1298,1977-78 CCH OSHD ? 22,481, p. 27,100 (No. 14249, 1978). However, Judge Furcolo is nolonger with the Commission. In light of the Commission’s role as the ultimate finder offact, Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert.denied, 425 U.S. 903 (1976), we will complete the adjudication of matter.The Secretary is required to prove eachelement of her case by a preponderance of the evidence. See Regina Constr. Co.,15 BNA OSHC 1044, 1046, 1991 CCH OSHD ? 29,354, p. 39,465 (No. 87-1309, 1991). The judgefailed to provide us with credibility findings, and the record does not help us resolvethe conflicts in the testimony. We thus have no sufficient basis for crediting thetestimony of one set of witnesses over the other. The result is that the evidence as towhether a ladder was present and whether there was knowledge is basically in balance asbetween the two parties. The Secretary has therefore failed to meet her burden of provingby a preponderance of the evidence that the terms of the standard were violated and thatthere was employer knowledge. In light of her failure to establish her prima facie case,we vacate the citation insofar as it alleges that Sal Masonry violated section1926.451(a)(13).[[3]]Alleged Willful Violation ofSection 1926.451(a)(8): Split Planks on ScaffoldingJudge Furcolo found that Sal Masonryviolated section 1926.451(a)(8)[[4]] by failing to immediately repair or replace damagedscaffold planks on which company employees worked. He characterized the violation asrepeated and serious, and he assessed a $200 penalty. In finding that the Secretary failedto establish that the violation was willful as alleged, the judge concluded that SalMasonry \”did not act in utter disregard of the safety of its employees, and theRespondent did not intentionally violate any cited standard.\” He supported thoseconclusions by referring to: uncontradicted testimony that Sal Masonry painted its damagedplanks so that they would not be confused with planks in good condition; and testimonyfrom compliance officer Rose that a representative of the company told him that SalMasonry had an \”average\” safety program.The Secretary argues that the judge usedthe wrong test for willfulness. She contends that the judge apparently concluded that ifan employer can point to anything that it has done that has a beneficial effect onemployee safety, then the violation is not willful.[[5]] The Secretary contends that thejudge’s approach virtually writes willfulness out of the Act, since most employers wouldbe able to point to some step they have taken to improve employee safety. She also arguesthat she proved willfulness on the basis of the entire record.To prove that a violation was willful,the Secretary must show that the violation \”was committed voluntarily with either anintentional disregard for the requirements of the Act or with plain indifference toemployee safety.\” A.C. Dellovade, Inc., 13 BNA OSHC 1017, 1019, 1986-87 CCHOSHD ? 27,786 (No. 83-1189,1987). To show intentional disregard of a standard, there mustbe evidence that the employer knew of the applicable standard prohibiting the conditionand that it consciously disregarded it. E.g., Williams Enterp., Inc., 13 BNA OSHC1249, 1257, 1986-87 CCH OSHD ? 27,893, p. 36,589 (No. 85-355, 1987). We agree with theSecretary that the judge used the wrong test for willfulness by requiring the Secretary toestablish that Sal Masonry acted in \”utter disregard of the safety of itsemployees.\” As the quotation from the Dellovade case shows, the Secretary’sburden of proving willfulness is not so heavy. Moreover, the evidence relied on by thejudge, Sal Masonry’s painting of certain of its damaged planks and its \”average\”safety program, sheds little light on the question of whether the company’s violation ofsection 1926.451(a)(8) was willful.To prove willfulness, the Secretaryrelies on a settlement agreement affirming a violation of section 1926.451(a)(8) by thecompany, evidence of the use of damaged planks by the company’s employees, and knowledgeof that use by company supervisors. Although we find that the company did have knowledgeof the requirements of the standard, our review of the record fails to establish that SalMasonry’s failure to immediately repair or replace damaged planks was willful.Foreman Renna testified that thecompany’s procedure with respect to split or damaged planks was to use them as mud sills,if possible, but otherwise to either spray paint them or throw them out. Labor foremanZullo testified that the company paid close attention to cracked planks. He stated thatplanks that were not considered to be in good condition did not go on the scaffoldingbecause an employee could fall through them and be killed. He also stated that if splitplanks were found, they would be painted and put in a separate pile from the good planks.Project manager Judge testified that he was on the scaffolding every day and examined theplanks for cracks and defects, but he did not discover any problems. He also testified, asdid Renna, that if split planks were found they would be used as mud sills or put asideand spray painted. Compliance officer Rose testified that company president Sal Fresina\”may have\” indicated to him that if split planks were found, they were utilizedas mud sills and not as scaffold planking.The testimony of company officials wascorroborated by employee Stupke, who testified that Sal Masonry instructed employees whosaw a cracked plank to tell a supervisor so that the plank could be replaced. EmployeeWhite testified that Sal Masonry informed its employees that if they saw a cracked plank,it would be replaced immediately. White also testified that Sal Masonry would correct anysafety violations he brought to their attention.The Secretary contends, however, thatemployees Swan, Vorhes, White, and Stupke all testified that they worked on cracked ornotched planks on the air intake shaft scaffolding. Although these employees did testifythat they worked on damaged planks, we find that their testimony cannot be relied upon tosupport the Secretary’s willful allegation because the same employees provided testimonythat tends to disprove willfulness. Employees Swan and White testified that they nevernotified a supervisor of the cracked or damaged planks. Employee Vorhes also testifiedthat he never told anyone from Sal Masonry about the cracked planks and also testifiedthat he never saw a supervisor view a split plank. Although employee Stupke testified atthe hearing that he did not think he had been told to notify a supervisor of theexistence of split planks, he also testified to the truth of a pre-hearing statement hegave that employees were in fact instructed to notify a supervisor if they saw crackedplanks, so that the planks could be replaced and work could be resumed.The Secretary further relies on evidencethat shows Sal Masonry’s supervisors knew about the damaged planks. She claims thatemployee DeLong testified that labor foreman Zullo told him to work on scaffolding wherethere were damaged planks and worked with him in such areas. DeLong also testified, theSecretary points out, that he complained to project manager Judge about damaged planks,but that nothing was ever done about them.Sal Masonry attacks the credibility ofemployee DeLong because DeLong had been fired by labor foreman Zullo. Zullo testified thathe had never been told of any split planks and that he had never told DeLong to work wherethere were split planks. Project manager Judge testified that he had never seen splitplanks at the Cornell jobsite before the inspection by compliance officer Rose. ForemanRenna testified that he did not recall any employees telling him there were split plankson the scaffolding and that he did not see any split planks other than the one pointed outto him by the compliance officer in an area where Renna had not been. Because the judgedid not specifically resolve the conflicting testimony of DeLong and the company’ssupervisors, we have no particular basis for crediting either DeLong or the supervisors.Thus, we cannot conclude that DeLong’s testimony establishes that Sal Masonry’ssupervisors knew of the cracked planks.The Secretary also points to complianceofficer Rose’s testimony that foreman Renna told him that damaged and cracked planks hadbeen thrown off scaffolding at another site and used as scaffolding at the Cornell site.Foreman Renna denied making the statement, however, and the judge did not resolve theconflict in the testimony between Rose and Renna. Once again, we have no basis forresolving the conflicting testimony. Therefore, we cannot say whose testimony is morepersuasive, and we must find that compliance officer Rose’s contradicted testimonyprovides no support for the Secretary’s allegation of willfulness.We also reject the Secretary’scontention that the violation was willful because the company had previously been citedfor violating the same standard. Under Potlatch Corp., 7 BNA OSHC 1061, 1063,1979 CCH OSHD ? 23,294, p.28,171 (No. 16183, 1979), the Secretary makes out a prima facieshowing that a violation is repeated by establishing that there was a Commission finalorder against the same employer for a substantially similar violation. Substantialsimilarity can be shown by demonstrating that both violations are of the same standard.However, such a showing, standing alone, is not sufficient to establish a willfulviolation. In D.A. & L. Caruso, Inc., 11 BNA OSHC 2138, 2142, 1984-85 CCHOSHD ? 26,985, p.34,694 (No. 79-5676, 1984), the case relied on by the Secretary, therewas ample additional evidence which compelled the finding of a willful violation. In thiscase, however, as outlined above, the testimony supporting a willful determination is inconflict. Because the judge failed to resolve the conflicts, we are unable to choose fromthe conflicting versions of testimony, and we conclude that the violation was not provento be willful. Alleged Willful Violation of Section 1926.451(d)(10): Scaffolding WithoutGuardrails or ToeboardsThe judge found that Sal Masonry committed a repeated, serious violation of section1926.451(d)(10) [[6]] by failing to provide standard guardrails and toeboards for tubularwelded frame scaffolding on which employees worked. He assessed a $500 penalty. The judgeconcluded that the violation was not willful without providing any specific reasons forhis conclusion, stating only that the company painted damaged planks and that thecompliance officer rated its safety program \”average.\” The judge relied on thissame evidence in finding that the violation discussed above was not willful. Therefore,his decision provides us with virtually no insight into whether Sal Masonry willfullyviolated section 1926.451(d)(10).However, our own review of the recordindicates that the Secretary did establish a willful violation of section 1926.451(d)(10).The evidence clearly demonstrates that Sal\u00a0 Masonry knew of the cited standard. Ithad received three prior citations alleging violations of the same standard in January,August, and December of 1985. The company’s attorney conceded that Sal Masonry failed tocontest two of the citations, and that it had settled the guardrail portion of the thirdcitation by agreeing that it be affirmed. [[7]] Further evidence that Sal Masonry knew ofthe standard’s requirements is provided by a letter written by company president Fresinato OSHA less than two weeks before the violations involved here occurred, acknowledgingthat \”toeboards were not in place\” on scaffolding at the Savage Hallconstruction site.In addition, the evidence shows SalMasonry consciously disregarded the standard. Compliance officer Rose testified that whenhe arrived at the jobsite, he observed employees, including foreman Renna, working onunguarded scaffolding. Rose testified that when he asked Renna why guardrails were missingfrom the scaffold, Renna responded, \”he [Renna] had been told that there should beguardrails put on the scaffold; that he [Renna] just hadn’t gotten around to doing it.[[8]]Sal Masonry contends that complianceofficer Rose is not a credible witness and that he is biased against it. The companyfurther argues that because it has called the compliance officer’s credibility intoquestion, the judge’s. credibility findings should be given deference. Thus, it claimsthat the judge’s finding that the compliance officer’s characterization of the company’ssafety program as \”average\” was more compelling than the compliance officer’stestimony on willfulness. We conclude that there is no merit in either argument. First, onthe matter of credibility, the judge did not make any credibility finding with respect tothe compliance officer’s testimony that he gave an \”average\” rating to thecompany’s safety program. The judge simply referred to the testimony, in the absence ofany direct testimony that the company’s safety program should have been given somedifferent rating, to help him justify his determination that the violation was notwillful. Second, on the matter of alleged bias, compliance officer Rose testified on atleast two occasions during the hearing that foreman Renna told him that he knew guardrailswere required on the scaffolding, but that he just \”hadn’t gotten around\” toinstalling them. Foreman Renna never contradicted this testimony. Nor has the companyclaimed that the testimony was inaccurate. Therefore, even if we were to conclude that thecompany’s allegation of bias against the compliance officer has some merit to it — and wedo not so conclude — it would not affect the alleged willfulness of the violation ofsection 1926.451(d)(10). Moreover, as we have already noted, that a company’s safetyprogram is average is not dispositive of the willfulness of a violation.The company also argues that theviolation was not willful because it had hired an employee specifically to constructguardrails for the scaffolding on the site. In light of the failure of the company’ssupervisors to have the guardrails installed, however, this argument is without merit. Wesimilarly reject the company’s argument that guardrails were removed temporarily in orderto bring material up to the scaffold. The unrebutted testimony of compliance officer Roseis that when he asked foreman Renna if the company was in the process of erecting ordismantling the scaffold, Renna responded in the negative. Further, foreman Renna’sstatement that he had not gotten around to putting up guardrails refutes any suggestionthat all absent guardrails might have been taken down so that material could be brought upto the scaffold, as opposed to their never having been put up in the first place. We,therefore, conclude that the violation of section 1926.451(d)(10) was willful. PenaltyBased on the penalty factors enumeratedin section 17(j), 29 U.S.C. ? 666(j), of the Occupational Safety and Health Act, weassess a penalty of $1000 for the willful violation of section 1926.451(d)(10). SalMasonry had a prior history of violating this and other OSHA standards, and the gravity ofthis violation was high as an employee could fall from 36 to 42 feet to his death from theunguarded scaffolding.OrderAccordingly, we vacate the citationinsofar as it alleges that Sal Masonry violated section 1926.451(a)(13). We find that therepeated, serious violation of section 1926.451(a)(8) was not willful and leave intact thejudge’s $200 penalty assessment for the violation. Lastly, we affirm the repeated, seriousviolation of section 1926.451(d)(10) as a willful violation and assess a $1000 penalty.Edwin G. Foulke, Jr., ChairmanDonald G. Wiseman, CommissionerVelma Montoya, CommissionerDated: May 7, 1992SECRETARY OF LABOR. Complainant, v. SAL MASONRY CONTRACTORS, INC., Respondent.OSHRC Docket No. 87-2007DECISIONThis case arose under 29 USC, ? 651, etseq. of the Occupational Safety and Health Act of 1970 (the Act). As a result of aninspection by the Occupational Safety and Health Administration (OSHA), of theRespondent’s premises on or about May 27, 1987 to November 24, 1987, Citations were issuedon or about November 24, 1987, charging [as amended] that the Respondent violated sec.5(a)(2) of the Act by the serious violation of the standard at 1926.451(d)(3);the serious, willful, and repeated violation of the standard at 1926.451(a)(8); theserious, willful, and repeated violation of the standard at 1926.451(a)(13);the serious, willful, and repeated violation of the standard at 1926.451(d)(10);the serious and repeated violation of the standard at 1926.451(a)(14) and theother than serious violation of the standard at 1926.602(c)(1) (VI) – respectively, Item 1of Citation 1; Item 1 of Citation 2; Item 2 of Citation 2; Item 3 of Citation 2; Item 1 ofCitation 3; and Item 1 of Citation 4.On or about December 1, 1987, theRespondent filed Notice of Contest to said items of the Citations and the penaltiesproposed therefor.The pertinent sections of the Act andthe standards are appended to this decision under appropriate titles.CITATION 1, ITEM 1 [451 (d) (3)]The Respondent’s labor foreman [Zullo]and the Complainant’s Compliance Officer [Rose], were the main witnesses concerningwhether the scaffolding was properly braced. Although Zullo said the scaffolding wasproperly braced, his testimony was weakened by his concession that the bracing wire was\”a little loose\” and had \”a sag in it\”… Tr.II, 275-277. Rosetestified that the scaffold was not properly braced and that it was easily moved…Tr.144, II-17, 19, 275, 276. I find that the scaffold in question was not properlybraced.CITATION 2, ITEM 1[451 (a) (8)]The uncontradicted evidence establishedthat the scaffolding had several planks that had been damaged by dry rot and cracks orsplits …Tr.33, 34, 40, 43, 111, 124-128, 160. I find that some scaffolds so damaged orweakened had not been immediately repaired or replaced.CITATION 2, ITEM 2[451 (a) (13)]The evidence clearly established thatthere was no ladder at the place in question … Tr. 15, 46, 67, 85, 113, 117, 179.However, the Respondent contended that there was an \”equivalent safe access\”provided by a longer route that made use of a stairwell, scaffolding, and flooring…Tr.II-207-221, 302-308.Assuming that the route so described wasan \”equivalent safe access\” [as indicated at Tr.II-127], that defense wouldstill be rejected. There is nothing to establish that employees were trained or instructedto use it to the exclusion of other less safe means of access. Moreover, where [as here]there are two or more paths of access available to employees, it is unreasonable for anemployer to assume that employees would always use the longer or more inconvenient way.I find there was no ladder and anequivalent safe access was not provided. CITATION 2, ITEM 3[451 (d) (10)]The uncontradicted evidence establishedthat some scaffolds did not have guardrails at all open sides and ends. The ComplianceOfficer [Rose] testified that the Respondent’s foreman [Renna] conceded the point …Tr.47, 48, 208, 225.I find that some scaffolds did not haveguardrails at all open sides and ends. CITATION 3, ITEM 1[451 (a) (14)]There was no contradiction of theevidence that established that some scaffold planks extended over their end supports lessthan 6 inches or more than12 inches…Tr.233-240 and Exh. C-33 and C-34.I find that some scaffold planksextended over their end supports less than 6 inches or more than 12 inches.CITATION 4, ITEM 1 [1926.602 (c) (1) (V)]The Compliance Officer [Rose] testifiedthat the emergency brake on the vehicle in question was inoperable and that its driversaid it wasn’t working properly and should be fixed…Tr.244, II-6, 8, 310. That testimonywas not contradicted.I find that the vehicle did not meet theANSI requirements. KNOWLEDGE The Respondent knew, or should haveknown, of all the alleged hazardous conditions. All were in plain sight or were admittedby supervisory personnel of the Respondent … Tr.15, 109, II-46, 48, 69, 75-78, 327.HAZARDExcept for the violation alleged in Item1 of Citation 4 [29 CFR 1926.602 (c)(1)(VI), the hazard consisted of broken bones or deathcaused by a fall of 25 feet … Tr.155,162,181.DEGREE OF VIOLATIONFour of the citations that allegedserious violations were amended to include repeated misconduct by the Respondent; andthree of the four were amended to also include its willful misconduct. Was therejustification for \”repeated\” or \”willful\” citations?The POTLATCH case [7 OSHC 1061]and the FOTI case [10 OSHC 1937] point out that a violation may be characterized as\”repeated\” if it is based on the same standard or the same hazard or isfactually substantially similar to an earlier violation. Here, the citations alleged to be\”repeated\” were based on the same standard, the same hazard, and substantiallysimilar facts. I find that the four citations in question were properly characterized as\”repeated\” …Exh.C-8. 13, 21 , 30-32, 35.To establish that the citations werewillful, the Complainant basically relied on two elements of proof: 1) the earlierviolation of the same standard … Exh.C-8-10, 13, 21, 30-32, 35 and, 2) testimony thattended to establish that the Respondent’s foreman [Renna] knew that damaged planks fromanother jobsite were transported for use in the scaffolds at the jobsite in question …Tr.168, II-106, 107.However, there was also uncontradictedtestimony by supervisory personnel of the Respondent that damaged planks were identifiedby paint so they would not be used as regular planks …Tr.II 311. Distinguishing thedamaged planks in that way would seem to indicate that the Respondent had some regard forthe safety of its employees. Certainly such conduct on the part of the Respondent isinconsistent with a willful violation.There is also the testimony of theCompliance Officer [Rose] that he had rated the Respondent’s safety and health program asaverage … Tr.II-172. That certainly is inconsistent with willful violations.I find that the Respondent did not actin utter disregard of the safety of its employees, and the Respondent did notintentionally violate any cited standard.FINDINGS OF FACTHaving heard the testimony, observed thewitnesses, and examined the exhibits, the following Findings of Fact are made:\u00a01. At all times concerned, theRespondent regularly received, handled or worked with goods which had moved across statelines.2. As concerns Item 1 of Citation 1, some scaffolding was not properly braced but wasloose and easily movable.3. As concerns Item 1 of Citation 2, some planks had become damaged or weakened buthad not been immediately repaired or replaced.4. As concerns Item 2 of Citation 2, there was no ladder or equivalent safe access.5. As concerns Item 3 of Citation 2, some scaffolds had no guardrails.6. As concerns Item 1 of Citation 3, some scaffold planks extended over the endsupports less than 6 inches or more than 12 inches.7. As concerns Item 1 of Citation 4, the vehicle’s emergency brake was inoperable;and the vehicle did not meet the ANSI requirements.8. The conditions described in Item 1 of Citation 4 exposed the Respondent’semployees to sustaining harm because of the hazard of brake not holding.9. The conditions described in each Item of Citations 1, 2, and 3 exposed theRespondent’s employees to sustaining serious or fatal harm because of the hazard of a fallof 25 feet.10. One or more officers or supervisory personnel of the Respondent knew of thehazardous conditions described herein and knew that employees were exposed to such hazard.CONCLUSIONS OF LAW1. At all times concerned, theRespondent was an employer engaged in a business affecting commerce within the meaning ofthe Act; and the Occupational Safety & Health Review Commission has jurisdiction overthe subject matter, and the parties.2. At all times concerned, the Respondent knew, or with the exercise of due diligenceshould have known, of the alleged violations.3. On the date in question, the Respondent was not in compliance with the standardsat 29 CFR 1926.451 (a)(8), (a)(13), (a)(14), (d)(3), (d)(10), and 1926.602(c)(1) and theComplainant has sustained the burden of proving the Respondent violated sec. 5(a)(2) ofthe Act (sec. 654).ORDER The whole record having been considered,and due consideration having been given to 29 U.S.C. sec. 666(j), it is ordered:1. Item 1 of Citation 1 is affirmed as a serious violation, and a penalty of $100 assessedtherefor.2. Item 1 of Citation 2 is affirmed as a serious and repeated violation, and apenalty of $200 assessed therefor.3. Item 2 of Citation 2 is affirmed as a serious and repeated violation, and apenalty of $200 assessed therefor.4. Item 3 of Citation 2 is affirmed as a serious and repeated violation, and apenalty of $500 assessed therefor.5. Item 1 of Citation 3 is affirmed as a serious and repeated violation, and apenalty of $100 assessed therefor.6. Item 1 of Citation 4 is affirmed as an other than serious violation, and a penaltyof zero assessed therefor.So ordered.FOSTER FURCOLOJudge, OSHRCDated: October 27, 1988Boston, Massachusetts APPENDIXTHE ACT\u00a0 1. Section 654 [section 5(a)(2)] Employer \”…shall comply with occupational safety and health standards…\” 2. Section 666 [section 17(a)] \” … employer who willfully or repeatedly violates…this Act …may be assessed a civil penalty of not more than $10,000 for each violation.\” 3. Section 666 [section 17(b)] \”…employer who has received a citation for a serious violation … of this Act … shall be assessed a civil penalty of up to $1,000 for each such violation. 4. Section 666 [section 17(b)] \”…employer who has received a citation for a serious violation … of this Act …shall be assessed a civil penalty of up to $1,000 for each such violation.\” 5. Section 666 [section 17(c)] \”…employer who has received a citation for a violation of …this Act … specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.\” 6. Section 666 [section 17(j)] \”…assess all civil penalties … giving due consideration to…the size of the business … gravity of the violation, the good faith of the employer, and the history of previous violations.\” 7. Section 666 [section 17(k)] \”…a serious violation shall be deemed to exist…if there is a substantial probability that death or serious physical harm could result … unless the employer did not, and could not …know of the presence of the violation.\” \u00a0STANDARDS29 CFR 1926.451(a)(8): \”Any scaffold includingaccessories …damaged or weakened from any cause shall be immediately repaired or replaced.\”1926.451(a)(13): \”An access ladder or equivalentsafe access shall be provided.\”1926.451(a)(14): \”Scaffold planks shall extendover their end supports not less than 6 inches nor more than 12 inches.\”1926.451(d)(3): \”Scaffolds shall be properlybraced…so that that erected scaffold is always plumb, square, and rigid…\”1926.451(d)(10): \”Guardrails shall be installedat all open sides and ends.\”29 CFR 1926.602(c)(1)(Vl): \”All industrialtrucks in use shall meet the applicable requirements of…maintenance, and operation, asdefined\” in ANSI B 56.1-1969.FOOTNOTES: [[1]] The direction for review specified only theseissues. Ordinarily, the Commission does not decide issues that are not directed forreview. 29 C.F.R. ?? 2200.92(c), .93(a). We observe that policy here. Therefore, we donot review those parts of the judge’s decision affirming serious and repeated violationsof section 1926.451(a)(8) and section 1926.451(d)(10) in our consideration of whether thejudge erred in not finding those violations willful. See Tampa Shipyards,Inc., 15 BNA OSHC 1533,1535 n.4,1992 CCH OSHD ? 29,617, p. 40,097 n.4 (No.86-469,1992).[[2]] Section 1926.451(a)(13) provides: ? 1926.451 Scaffolding.(a) General requirements…..(13) An access ladder or equivalent safe access shallbe provided.[[3]] Sal Masonry could have complied with the plainterms of the cited standard by providing its employees with either (1) a ladderto access the scaffolding or (2) equivalent safe access to the scaffolding. Since thecompany’s evidence demonstrates that it did provide a ladder and the Secretary has failedto carry her burden of proving that the company did not provide a ladder, we need notinquire into whether the alternative, equivalent safe access, was provided.[[4]] Section 1926.451(a)(8) provides:? 1926.451 Scaffolding. (a) General requirements…..(8) Any scaffold including accessories such asbraces, brackets, trusses, screw legs, ladders, etc. damaged or weakened from any causeshall be immediately repaired or replaced.[[5]] The Secretary provides the following examplesof cases where the Commission found willful violations even though the cited employers hadtaken pertinent steps in behalf of employee safety: Ensign-Bickford Co. v. OSHRC,717 F.2d 1419 (D.C. Cir. 1983), cert. denied, 466 U.S. 937 (1984); A. Schonbek& Co. v. Donovan, 646 F.2d 799 (2d Cir. 1981); and Empire-Detroit Steel Div.,Detroit Steel Corp. v. OSHRC, 579 F.2d 378 (6th Cir. 1978).[[6 ]] Section 1926.451(d)(10) provides:? 1926.451 Scaffolding…..(d) Tubular welded frame scaffolds…..(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material providingequivalent protection), and approximately 42 inches high, with a midrail of 1 x 6 inchlumber (or other material providing equivalent protection), and toeboard, 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.[[7]] Sal Masonry’s argument that the evidence of itsthree prior violations of the cited standard may not be used against the company becausesuch evidence constitutes unsubstantiated hearsay is rejected. As we noted above, evidenceof prior violations may be used as partial support for a finding of willfulness. SeeD.A. & L. Caruso, Inc., 11 BNA OSHC 2138, 1984-85 CCH OSHD ? 26,985 (No.79-5676, 1984). We also note that the company’s attorney assented to the existence of allthree violations.[[8 ]] The Secretary also argues that a willfulviolation was established by statements from employees. She relies on employee DeLong’stestimony that he was unable to erect scaffold guardrails bemuse the company did notprovide sufficient material to build them. She further notes that DeLong testified that heapprised supervisors Zullo and Judge about this and that he was told to do the best hecould. The Secretary also points out employee Swan’s testimony that he worked on scaffoldswithout guardrails, and that he complained to both the labor foreman and supervisor aboutthe lack of guardrails, without receiving any response until after the compliance officerbegan his inspection. We do not rely on this evidence in finding a willful violation here.The evidence was essentially contradicted by the testimony of Sal Masonry’s supervisoryofficials, and the judge failed to resolve the conflict in the testimony.”