“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13746 SMITH MASONRY CONTRACTORS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 3, 1978DECISIONBefore CLEARY, Chairman; and BARNAKO, Commissioner.CLEARY, Chairman:??????????? Adecision of Administrative Law Judge Thomas J. Donegan is before the Commissionpursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651 et seq. [hereinafter ?the Act?]. In that decision the Judge, amongother things,[1]vacated a citation for a repeated nonserious violation of section 5(a)(2) ofthe Act that alleged that respondent, Smith Masonry Contractors, Inc., failedto comply with the safety standard published at 29 CFR ? 1926.451(a)(4).[2]??????????? Followingthe issuance of the Judge?s decision the Secretary of Labor filed a petitionfor discretionary review. The petition, which was granted by the Chairman,raised the following issues:[3]??????????? (1)Whether the Administrative Law Judge erred in concluding that respondent?semployees were not exposed to the hazard of unguarded scaffolds in the ?shop?area of respondent?s worksite???????????? ?(2) If the Judge did err, was the violationrepeated???????????? Forthe reasons that follow, we answer both questions in the affirmative and affirmthe citation.??????????? Atthe time of the inspection, on May 28, 1975, respondent was engaged in masonrywork for the construction of the National Fish Hatchery on the Warm SpringsIndian Reservation in Oregon. Respondent had three employees on the site. Twoof the employees, both of whom were bricklayers, were laying cinderblocksaround the core of a column on the river intake area, about 100-200 feet fromthe shop area of the building under construction where respondent hadpreviously been working. The third employee, a hod carrier, was supplying thebricklayers with blocks and mortar. He was also dismantling the scaffolding inthe shop area whenever the bricklayers required additional scaffolding wherethey were working.??????????? Thescaffolding in the shop area had been erected at three locations: at the northwall both inside and outside the shop area, and on the south wall inside theshop area.??????????? Thescaffolds had two levels. The lower level was 6 feet 6-inches off the ground,while the higher level was 13 feet. The compliance officer testified that heobserved no guardrails at the 13-foot level of any of the scaffolding in theshop area. He stated that he did not see any of respondent?s employees usingthe scaffold. Moreover, he testified that he was told by the employees that thescaffold was last used five days before the inspection.[4] Nevertheless, thecompliance officer apparently concluded that employees had access to the upperlevel of the scaffold because, as evidenced by exhibit C-3, there was a ladderleading to the 13-foot level of the scaffold inside the north wall, and thescaffold contained quantities of cinderblock which had to be taken down beforeit was dismantled. The removal would necessarily result in the actual exposureof employees to a fall hazard.??????????? Respondent?sforeman denied that any of the employees were on the scaffold on the day of theinspection. He testified that due to a delivery failure, he was forced to stopwork on the shop walls. Instead, he and the other bricklayer began working atthe river intake area. The hod carrier spent his time both supplying them withequipment and dismantling the scaffold. According to the foreman the hodcarrier dismantled the upper level of the scaffold while standing on the 6 foot6 inch level of the scaffold by reaching up to the 13-foot level.??????????? JudgeDonegan held that the Secretary failed to establish employee exposure. He notedthat there were neither mortar boards[5] nor mortar on thescaffolds, thus indicating that no construction work was being done. Failing tofind any other evidence that employees were exposed to the unguarded scaffoldon the day of the inspection, the Judge vacated the citation.??????????? TheSecretary, on review, takes exception to the Judge?s failure to find employeeexposure. He argues that photographic exhibits C-3 and C-4 providecircumstantial evidence proving that on the day of the inspection, an employeeof respondent was on the scaffold located on the inside of the north wall ofthe shop area. According to the Secretary, exhibit C-3 depicts a pile ofmasonry blocks located in about the center on the 13-foot level, a ladder toreach that level, no guardrails or toeboards, respondent?s employee standingdirectly behind the ladder on the 6 foot 6 inch level, and a few masonry blocksplaced on the edge of the left side of the 6 foot 6 inch level. Exhibit C-4,which was taken ten minutes later, shows that the pile of masonry blocks whichwere on the 13-foot level had been removed and placed on the left side of the 6foot 6 inch level, directly next to the few masonry blocks which were shown inexhibit C-3. In addition, the ladder shown in exhibit C-3 had been removed. TheSecretary argues that these two exhibits, when taken together, permit stronginferences of actual exposure of employees to the unguarded scaffold in thecourse of removing the masonry blocks.??????????? TheSecretary also argues that respondent was not dismantling the scaffolds.Although some planks were removed from the scaffold on the outer north wall ofthe shop area, no other scaffolding was removed during the course of thethree-hour inspection. In any event, it is argued, the dismantling of thescaffold did not excuse the failure to have guardrails if employees still wereusing them.??????????? Finally,the Secretary asserts that the citation should be affirmed as ?repeated.? TheSecretary observes that respondent had been cited twice previously for failureto comply with ?\u00a01910.451(a)(4) and that both citations had become finalorders before the instant inspection.??????????? Respondentargues for affirmance of the Judge?s decision. It stresses that work at theshop area had ceased and that its employees had no reason to be on the 13-footlevel of the scaffold. Respondent also contends that the hod carrier removedthe planks from the 13-foot level of the scaffold by reaching from the levelbelow. Finally, respondent emphasizes that although the ladder on the insidenorth wall of the shop provided a means of access to the 13-foot level, thecompliance officer testified that he had no evidence that the ladder was used togain access to the upper level. Nowhere, however, does respondent meet theSecretary?s argument that exhibits C-3 and C-4 establish employee exposure.??????????? Weagree with Judge Donegan?s finding that at the time of the inspectionrespondent?s employees had finished laying the blocks at the shop area, andthat the scaffolds were being dismantled. The Judge did not consider, however,that the cleanup of the area had not concluded. Both tools and blocks remainedon the scaffolds, which were being dismantled. Exhibits C-3 and C-4persuasively establish that during this period, respondent?s hod carrierclimbed onto the unguarded 13-foot level of the inside north wall scaffold toremove the blocks before dismantling it, thereby exposing himself to thehazardous condition.??????????? ExhibitC-3 shows that the distance between the ladder and the pile of blocks on the13-foot level was too great for the hod carrier to have removed the blockswhile standing on the ladder. Exhibit C-4 shows that the blocks were removed tothe lower level of the scaffold. The most obvious and perhaps the only way theblocks could have been removed was for the hod carrier to have climbed theladder onto the 13-foot level, walked to the blocks, and carried them down theladder, and finally placed them in the corner of the lower level.??????????? Wenote that the compliance officer testified that he did not know if respondent?semployee actually climbed onto the scaffold, or if he removed the blocks whilestanding on the lower level by reaching up between a space in the planks.Exhibit C-3 reveals, however, that the top blocks on the pile would have beenfar too high for the hod carrier to have reached while standing on the lowerlevel. We find the Secretary?s interpretation of the evidence to be persuasive,and exposure to have been established by circumstantial evidence. See ChicagoBridge & Iron Co., 74 OSAHRC 92\/A2, 2 BNA OSHC 1413, 1974-75 CCH OSHDpara. 19,158 (No. 224, 1974), aff?d 535 F.2d 371 (7th Cir. 1976). Withno other explanation offered by respondent, we find that the hod carrier wasexposed to the unguarded scaffold.??????????? Wealso conclude that the violative condition is repeated. In Chairman Cleary?sview, it is enough that respondent had been cited twice previously for afailure to comply with ? 1926.451(a)(4), and that both citations had becomefinal orders before the inspection in this case. See Chairman Cleary?s separateopinion in George Hyman Constr. Co., 77 OSAHRC 67\/C7, 5 BNA OSHC 1318,1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), petition for reviewdocketed, No. 77-1591, 4th Cir., May 2, 1977.??????????? InCommissioner Barnako?s view, it is not enough to show previous violations; someshowing that the employer has failed to take steps to prevent a recurrence ofthe violative condition is required, and he would find a prima facie failure totake such steps when the same violation recurs under the same supervisor. SeeCommissioner Barnako?s opinion in George Hyman Constr. Co., supra. Inthis regard, Commissioner Barnako takes official notice of Administrative LawJudge Stuller?s decision in Smith Masonry Contractors, Inc., 73 OSAHRC49\/B6, 1 BNA OSHC 3212, 1973-74 CCH OSHD para. 16,638 (No. 2042, 1973), whichinvolves one of the two previous violations of ? 1926.451(a)(4) by respondentcited by the Secretary in support of the repeated allegation. That decisionstates that, as in the instant case, a Martin Holm was the supervisor in chargeof the worksite. Accordingly, Commissioner Barnako finds the violation is?repeated.? Both members agree that under the circumstances here and consistentwith 5 U.S.C. ? 556(e), respondent be given ten (10) days from the service ofthis order to request an opportunity to show that the supervisor in this caseand Docket No. 2042 were not the same individuals.??????????? Regardingthe penalties, we conclude that the $340 proposed by the Secretary isappropriate. Respondent is an employer with approximately 100 employees on itspayroll. Only one employee was exposed briefly but the gravity of the violationwas moderately high. Not only were there no guardrails, but the scaffold hadbeen partially dismantled thereby reducing the size of the platform on whichthe exposed employee had to stand. Finally, as discussed above, the violationwas ?repeated.???????????? Accordingly,it is ORDERED that citation 3 for a repeated failure to comply with ?\u00a01926.451(a)(4)is affirmed and a penalty of $340 is assessed, unless respondent requests,within 10 days of the date of this decision, an opportunity to show that thesupervisors in this case and in Docket No. 2042 were not the same person. Inthe latter event further proceedings, consistent with this opinion, may beheld.?FORTHE COMMISSION:?RayH. Darling Jr.ActingExecutive SecretaryDATED:JAN 3, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13746 SMITH MASONRY CONTRACTORS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0For the Complainant: William W. Kates,Attorney Office of the Solicitor U.S. Department of Labor7009 Federal Office Building Seattle, WA98174\u00a0For the Respondent: James R. Watts,Esquire3434 SW Water Avenue Portland, OR 97201\u00a0DECISION AND ORDERDonegan, Judge:??????????? Thisis a proceeding pursuant to section 10(c) of the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to asthe Act).??????????? The Respondent,Smith Masonry Contractors, Inc., was engaged in masonry work at the NationalFish Hatchery, Warm Springs Indian Reservation, Oregon, when this worksite wasinspected on May 28, 1975 by a compliance officer (inspector) of theOccupational Safety and Health Administration, U.S. Department of Labor.??????????? Thefour citations and the notification of proposed penalties totaling $480, issuedon June 9, 1975 as a result of this inspection, were timely contested by theRespondent.??????????? Thecomplaint differs from citation number three in that there is the additionalallegation in paragraph IV, sub-paragraph 3 of the complaint that ?toeboards?were not provided. The Respondent moved at the opening of the hearing to strikethis additional allegation concerning ?toeboards?. This motion was denied; andthe Complainant?s motion, also made at the hearing, to amend citation numberthree to conform to the allegation of the complaint concerning ?toeboards? wasgranted (T. 7,25).??????????? Thecitations, proposed penalties and the standards allegedly violated are asfollows:Citation Number One (Nonserious)Item Number 1??A metal extension ladder inthe shop area under construction used to gain access to scaffolding 13 feetabove ground level was not secured against movement.??Abatement Date: Immediately upon receiptof citation?Proposed Penalty: None\u00a0Standard cited: 29 CFR 1926.450(a)(10)? ? 1926.450?Ladders(a) General Requirements(10) Portable ladders in use shall betied, blocked, or otherwise secured to prevent their being displaced.?Citation Number Two (Repeated Nonserious)Item Number 1??No ladder was used to gainaccess to the 66? or 13 level of scaffolding in the shop being constructed andto scaffolding 66? above ground around pillers under construction at south endof construction site.??Abatement Date: Immediately upon receiptof citation?Proposed Penalty: $70?Standard cited: 29 CFR 1926.451(a)(13)? 1926.451?Scaffolding(a) General Requirements(13) An access ladder or equivalent safeaccess shall be provided.\u00a0Citation Number Three (RepeatedNonserious)Item Number 1??Scaffolding in the shopunder construction approximately 13 above ground level did not have guardrailsinstalled.??As amended in the complaint:?Standard guardrails and toeboards asdefined at 29 CFR 1926.451(a)(5) were not provided on the 13 foot high levelsof the scaffolding located inside of and at both the north and south ends ofthe aforesaid shop area, contrary to 29 CFR 1926.451(a)(4).??Abatement Date: Immediately upon receiptof citation?Proposed Penalty: $340?Standard cited: 29 CFR 1926.451(a)(4)? 1926.451?Scaffolding(a) General Requirements(4) Guardrails and toeboards shall beinstalled on all open sides and ends of platforms more than 10 feet above theground or floor, except needle beam scaffolds and floats (see paragraphs (p)and (w) of this section). Scaffolds 4 feet to 10 feet in height, having aminimum horizontal dimension in either direction of less than 45 inches, shallhave standard guardrails installed on all open sides and ends of the platform.\u00a0Citation Number Four (Repeated Nonserious)Item Number 1??Building material wasstored on scaffolding on both sides of the north wall of the shop area and onthe scaffolding located at the south wall of the shop.??Abatement Date: Immediately upon receiptof citation?Proposed Penalty: $70?Standard cited: 29 CFR 1926.250(b)(5)? 1926.250?General Requirements forStorage(5) Materials shall not be stored onscaffolds or runways in excess of supplies needed for immediate operations.???????????? Itwas stipulated that the Respondent is an Oregon Corporation which was engagedin activities affecting commerce at the Warm Springs Indian Reservationworksite, and that the Commission has jurisdiction in the case (T. 5?6).??????????? Noaffected employees or representatives of affected employees have elected toparticipate in this proceeding (T. 3?5).??????????? Theattorneys for the parties have submitted post-hearing briefs.FINDINGS??????????? Theviolations which are alleged to have occurred on May 28, 1975, the date of theinspection, are principally concerned with three scaffolds that had beenerected some time before the inspection for the purpose of constructing thewalls of a building which is referred to in the citations and complaint as the?shop? or ?shop area?. A roof had not been placed on the walls at the time ofthe alleged violations (T. 48, 57, 93; exhibits C?1, C?2, C?3, C?4, C?5).??????????? Thefourth scaffold involved in one of the alleged ladder access violations ofcitation number two was located at one of the pillars which had been erected atthe ?river intake area? of the worksite, approximately 100 feet away from the?shop? building (T. 58, 169). There is no photograph of this scaffold.??????????? Thesignificant issue in each of the alleged violations involving the threescaffolds located at the north and south walls of the ?shop? is whether thethree employees at the worksite on the day of the inspection were exposed towork hazards caused by these alleged violations. With the exception of theviolation charged in citation number four (blocks stored on scaffolding), it isconcluded that they were not.??????????? OnMay 28, 1975, the date of the inspection and of the alleged violations,[6] no work was being done onthe walls and none had been done since May 23, 1975 (T. 90, 120, 123, 126). Onthe inspection date there were no mortar boards or mortar on the scaffoldinglocated at the ?shop? and the uncontradicted evidence of record sustains afinding that the foreman, Holm, and the bricklayer, Oja, were doing masonrywork on the pillars located at the ?river intake area? of the worksite (T.173).??????????? Theonly one of the three employees engaged in work activity on the scaffolds onthe day of the alleged violations was the hod carrier, who was dismantling the?shop? scaffolding for the purpose of moving sections of it to the river areafor erection around the pillars. Part of the scaffolding had been removed priorto the date of the alleged violations (T. 169?171). This work activity of thehod carrier was supplemental to his principal duties which required that hekeep employees Holm and Oja supplied with blocks and mortar for the masonrywork on the pillars at the river level.??????????? OnMay 28, 1975, the walls of the ?shop? had been completed except for theinstallation of a beam anchor to hold the roof. Work had been discontinuedawaiting delivery of the beam anchor. Before resuming work on the scaffolding,it would be necessary to restore parts of the scaffolding that had been removedand to enlarge it (T. 161?167).??????????? Theinspector testified that he concluded there was employee exposure to hazardscreated by the alleged violations on May 28, 1975 because of statements made tohim by employees Holm and Oja concerning the condition of the scaffolding whenit was last used on May 23, 1975 (T. 107?109, 120?121, 133?134). Mr. Oja didnot testify and Mr. Holm?s testimony does not support the inspector?s testimonyconcerning the condition of the scaffolding on May 23, 1975. It is concludedthat the inspector?s testimony in this regard is of no probative value.??????????? Thealleged violations involving the three ?shop? scaffolds do not come within theambit of Brennan v. O.S.H.R.C. & Underhill Construction Corporation,513 F.2d 1032 (2nd Cir. 1975) wherein it was held that to prove a violation ofa safety or health standard it need only be shown that a hazard has been committedand the area of the hazard was accessible to the employees of the citedemployer.??????????? Whenevaluating the issue of employee exposure to the hazards of the ?shop?scaffolding, it is helpful to consider the analogy of a partially dismantledmachine which is not in compliance with applicable safety standards but isaccessible to employees. The scaffolding was undergoing partial dismantlementand was neither available nor was it being used for any kind of constructionwork at the time of the alleged violations.??????????? CitationNumber One (Nonserious)??????????? Theladder in this alleged violation appears in the first photograph (exhibit C?3)taken by the inspector of the scaffolding located at the interior side of thenorth wall of the ?shop?. The ladder had been removed when the inspector tookthe second photograph (exhibit C?4), some ten minutes later (T. 64, 135).??????????? Theinspector testified that this metal ladder was not attached to the scaffoldingor another stable structure to prevent it from moving when being used (T. 65).He did not see anyone using the ladder and said he had no evidence that it hadbeen used to gain access to the 13-foot level of the scaffolding as alleged inthe citation and complaint, but did have as to the 6 1\/2-foot level (T.119?120).??????????? Theforeman, Martin Holm, testified that the ladder was used by the hod carrier,Gary Norden, for the purpose of dismantling the scaffold (T. 166?167). The hodcarrier appears in photographs C?3 and C?4, standing on the 6 1\/2-foot level ofthe scaffold.??????????? Theladder was not tied or blocked; but it is concluded that it was ?otherwisesecured? to prevent it from moving, since it was equipped with rubber skidsafety feet which rested on the dry concrete floor of the ?shop?. Under thecircumstances of the ladder being utilized for the dismantling of the scaffold,it was not feasible for the Respondent to comply with the requirement that theladder be tied or blocked. It is concluded that the rubber skid safety feetresting on a dry concrete floor complied with the requirement of the citedstandard (29 CFR 1926.450(a)(10)) in this instance.??????????? CitationNumber Two (Repeated Nonserious)??????????? Thereare two worksite areas involved in the allegation that no ladder or equivalentmeans of safe access to the scaffolding were provided, contrary to 29 CFR1926.451(a)(13).??????????? Thefirst area involves the scaffolding in the ?shop?. The ladder that was locatedin the ?shop? has been referred to in the discussion of the violation allegedin citation number one. Findings have also been made that the scaffolding inthe ?shop? was being partially dismantled and was not available forconstruction work at the time of the alleged violations. As to the allegationthat no ladder or equivalent means of safe access was provided for the ?pillar?scaffolding in the ?river intake area,? it is also concluded that this chargeis not supported by credible evidence (T. 58, 69, 132, 176?178).??????????? CitationNumber Three (Repeated Nonserious)??????????? Thiscitation has been amended to conform to the allegation of the complaint thatthe Respondent was in violation of 29 CFR 1926.451(a)(4) in that thescaffolding located inside of the north and south walls of the ?shop? were notprovided on the 13-foot high levels of the scaffolding with standard guardrailsand toeboards as defined at 29 CFR 1926.451(a)(5). As in the other citations,this violation is alleged to have occurred on the date of the inspection.??????????? Theevidence sustains a finding that this scaffolding did not have guardrails ortoeboards on the 13-foot level as alleged in the citation. Nevertheless, it isconcluded that the Respondent was not in violation of the cited standard on May28, 1975. As stated previously in this decision, the scaffolding was beingpartially dismantled and was not used by the Respondent?s employees in thisarea of the worksite for construction purposes on the date of the allegedviolation.??????????? CitationNumber Four (Repeated Nonserious) ??????????? Thesubstantial evidence of record sustains a finding that masonry blocks in excessof supplies needed for immediate construction work were stored on thescaffolding on May 28, 1975, as alleged in the citation and complaint (T.75?76, 80?87, 95, 111?113, 123, 125?126, 133; exhibits C?1, C?2, C?3, C?4,C?5).??????????? Thescaffolding involved in this violation had not been used for the purpose ofconstructing the wall for a number of days prior to the inspection, and themasonry blocks stored on the scaffolding were not needed for immediateconstruction work. The hod carrier engaged in dismantling the scaffolding andthe other two employees when in the vicinity of this scaffolding, were exposedto the possibility of being hit by a falling masonry block if the scaffoldingwas accidentally jolted. There were no toeboards on the scaffolding to preventa masonry block from slipping over the edge of a level of the scaffolding onwhich it was stored. The violation was of a low level of gravity.[7]??????????? Atthe conclusion of the Complainant?s case, the Respondent moved to dismiss theallegation that this was a repeated violation within the meaning of section17(a) of the Act.[8]In support of the motion, the Respondent contended that the Complainant hadfailed to sustain the burden which it had assumed in the complaint of showingsimilarities of fact, import, and character to the worksite conditions andpractices present on March 26, 1973 at the Port of Portland Airportconstruction worksite (T. 148?157).??????????? ExhibitC?7 is a copy of a citation issued to the Respondent on April 18, 1973 as a resultof an inspection of the Respondent?s construction worksite at the Port ofPortland Airport on March 27, 1973. The citation states that the Respondent wasengaged in masonry work on a building at this worksite, and in item number 4alleges that the Respondent violated 1926.250(b)(5) in that ?cement blocks werestored on scaffolding approximately 18 feet above ground level on north side ofbuilding; employees working below.? The parties stipulated at the hearing thatthis alleged violation was affirmed and became a final order of the Commission[9] (T. 99?105).??????????? Inthe absence of evidence to the contrary, in the form of an affirmative defense;it is concluded that the Complainant made a sufficient showing of similaritiesin the violations of March 26, 1973 and May 28, 1975 to sustain a finding thatthe violation on May 28, 1975 was a repeated violation of 29 CFR 1926.250(b)(5)within the meaning of section 17(a) of the Act.??????????? Pursuantto the provisions of section 17(j) of the Act,[10] an appropriate civilpenalty for this repeated nonserious violation is $50.CONCLUSIONS OF LAW??????????? 1.The Respondent, Smith Masonry Contractors, Inc., was at all times material tothis proceeding an employer engaged in business affecting interstate commercewithin the meaning of section 3 of the Act.??????????? 2.The Occupational Safety and Health Review Commission has jurisdiction over theparties and the subject matter of this proceeding as provided in section 10 ofthe Act.??????????? 3.The place of employment maintained by the Respondent at the National FishHatchery, Warm Springs, Indian Reservation, Oregon was inspected by anauthorized employee of the Secretary??????????? 4.The Respondent did not violate 29 CFR 1926.450(a)(10) as alleged in citationnumber one and in the complaint, and therefore was not in violation of section5(a)(2) of the Act in this instance.??????????? 5.The Respondent did not violate 29 CFR 1926.451(a)(13) as alleged in citationnumber two and in the complaint, and therefore was not in violation of section5(a)(2) of the Act in this instance.??????????? 6.The Respondent did not violate 29 CFR 1926.451(a)(4) as alleged in citationnumber three and in the complaint, and therefore was not in violation ofsection 5(a)(2) of the Act in this instance.??????????? 7.The Respondent was not in compliance with 29 CFR 1926.250(b)(5) as alleged incitation number four and in the complaint, and thereby violated section 5(a)(2)of the Act.??????????? 8.The violation of 29 CFR 1926.250(b)(5) was a repeated nonserious violationwithin the meaning of sections 17(a) and 17(c) of the Act. In accordance withthe provisions of section 17(j) of the Act, an appropriate civil penalty forthis violation is $50.ORDER??????????? Basedon the foregoing findings of fact and conclusions of law, it is ORDERED:??????????? 1.That citation number one issued to the Respondent on June 9, 1975 be, and ishereby vacated.??????????? 2.That citation number two issued to the Respondent on June 9, 1975 be, and ishereby vacated.??????????? 3.That citation number three issued to the Respondent on June 9, 1975 be, and ishereby vacated.??????????? 4.That citation number four issued to the Respondent on June 9, 1975 be, and ishereby affirmed.??????????? 5.That the notification of proposed penalties issued to the Respondent on June 9,1975 be, and is hereby vacated.??????????? 6.That a civil penalty of $50 be, and is hereby assessed for the repeatednonserious violation of citation number four.THOMAS J. DONEGANJudgeDATED:May 19, 1976?Seattle,Washington\u00a0[1] The Judge alsovacated citations that alleged a failure to comply with the standards at?\u00a01926.450(a)(10) and ? 1926.451(a)(13), and affirmed a citation forfailure to comply with ?\u00a01926.250(b)(5). Neither party excepted to theJudge?s disposition of these citations, and they are not before us on review.[2] ? 1926.451Scaffolding.(a)General requirements.(4)Guardrails and toeboards shall be installed on all open sides and ends ofplatforms more than 10 feet above the ground or floor, except needle beamscaffolds and floats (see paragraph (p) and (w) of this section). Scaffolds 4feet to 10 feet in height, having a minimum horizontal dimension in eitherdirection of less than 45 inches, shall have standard guardrails installed onall open sides and ends of the platform.[3] FormerCommissioner Moran also issued a direction for review which specified no issues.[4] At the hearing,counsel for the Secretary stated that the citation was based on conditions asthey existed on the day of the inspection and that there was no allegation that? 1926.451(a)(4) was violated before that day.[5] Mortar boards areobjects that hold the mortar before its application on the bricks.[6] When theRespondent objected to the inspector?s testimony concerning the condition anduse of the scaffolding on May 23, 1975, the Complainant reaffirmed the date ofthe alleged violations as set forth in the citations and complaint, andasserted that the violations occurred on May 28, 1975, the date of theinspection, and not on any other date (T. 91?93).[7] Examples of someof the factors that are considered in determining the degree of gravity of theviolation are; number of employees exposed to risk of injury; duration ofemployee exposure; precautions taken against injury, if any; and degree ofprobability of occurrence of an injury.[8] Section 17(a)provides: ?Any employer who willfully or repeatedly violates the requirementsof section 5 of this Act, any standard, rule, or order promulgated pursuant tosection 6 of this Act, or regulations prescribed pursuant to this Act, may beassessed a civil penalty of not more than $10,000 for each violation.?[9] See Secretaryv. Smith Masonry Contractors, Inc., 6 OSAHRC 385 (1974).[10] Section 17(j)provides: ?The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to the appropriateness ofthe penalty with respect to the size of the business of the employer beingcharged, the gravity of the violation, the good faith of the employer, and thehistory of previous violations.?”