Midwest Masonry Inc., and its successors

Plain-English summary

Midwest employees stocked bricks, a masonry saw, and other materials on a scaffold platform about 13 feet above the ground before midrails were installed. The judge affirmed the violation as serious and assessed $100, reasoning that the employees were only stocking the platform and Midwest believed that work was part of scaffold erection. The Commission held that a prior final order involving missing scaffold guardrails was substantially similar because both violations exposed employees to the same fall hazard and required the same abatement. It also found that the prior decision and the standard gave Midwest fair notice that guardrails were required before non-erection work began. The Commission reclassified the violation as repeated and assessed the Secretary's proposed $5,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(g)(4)(i)
• Outcome: Scaffold midrail violation reclassified from serious to repeated; penalty increased from $100 to $5,000.
• Key point: Repeat classification turns principally on substantially similar hazards, not minor differences in the employees' tasks when the same scaffold guarding and fall hazard are involved.

Full text (OSHRC public release)

SECRETARY OF LABOR,

              Comp lainant,

                     v.                            OSHRC D ocket No. 00-322

MID WES T MA SON RY, IN C.,

               Respon dent.




                                     DECISION

Before: RO GERS , Chairman; EISE NBRE Y, Comm issioner.
BY T HE C OMM ISSION :
The issues on re view are w hether Admin istrative Law Judge Sta nley M. Sch wartz
erred in: (1) reclassifying a scaffold midrail violation under the Occupational Safety and
Health Act of 1970 (“the Act”), 29 U.S.C. §§ 651-678, from repeated to serious; and (2)
reducing the penalty for that violation from the $5,000 proposed by the Secretary to $100.
We ho ld that th e judge erred fo r the fol lowing reason s.
FACTS
Midwest Masonry, Inc., was the bricklaying contractor for a construction project at
the University of Nebraska’s Kearney West Campus. It erected a scaffold a long the len gth
and width of the building it was co nstructing. The scaffold had two com pleted work
platforms, with a third one underway at the time of the inspection. The first one was about
6 feet 10 inches above the ground, and the second one was about 13 feet 4 inches above the
ground. Only the guarding for the second platform is at issue here.

                                                                  2001 OSHRC N O. 24

2

      Compliance Officer (“ CO”) D ean Craig of the Oc cupationa l Safety and H ealth

Administration (“OSHA ”) inspected the site on De cember 10, 199 9. Various materials --
including bundles of bricks, a masonry saw, a “mud” (mortar) board, and a pair of coveralls
-- had been placed on the second platform by Midwest employees. Midwest admits that
during the stocking operation those employees had worked at the perime ter without m idrail
protection.1 OSHA cited M idwest for failure to provide midrails as required by section
1926.451(g)(4)(i). 2 No employees w ere working on the platform at the time of the inspection.
On the one hand, no bricklaying had been done from the second platform; on the other hand,
the materials stocked on the second level were not used in the erection of the scaffolding.
Midwest’s President, D oug W indhorst, w as in the pro cess of brin ging additio nal railings to
the site.

1
The platform was constructed with cross bracing, which was attached to uprights every four
feet, and which intersected approximately 42 inches above the platform. That cross bracing
could not serve as a midrail under 29 C.F.R. § 1926.451(g)(4)(xv) because the crossing point
was not at the requisite height, between 20 inches and 30 inches above the work platform.
2
That section provides:
(g) Fall protection. (1) Each employee on a scaff old more than 10 feet (3.1 m) above
a lowe r level sh all be pro tected f rom fa lling to th at lowe r level. . . .
....
(4) . . . (i) Guardrail systems shall be installed along all open sides and ends of
platforms. Guard rail systems shall be insta lled before th e scaffold is released
for use by employees other than erection/dismantling crews.
(Empha sis added.) “Guard rail system means a vertical barrier, consisting of, but not limited
to, toprails, midra ils, and posts, ere cted to prev ent emplo yees from fa lling off a s caffold
platform or walkway to lower levels.” 29 C.F.R. § 1926.450(b). “When midrails are used,
they shall be installed at a height approximately midway between the top edge of the
guardrail system and the platf orm su rface.” 29 C.F .R. § 19 26.451 (g)(4)(iv ). See also 29
C.F.R. § 1926.451(g)(4)(ii) (top edge height of toprails on supported scaffolds placed in
service before January 1, 2000 were required to be between 36 inches and 45 inches above
platfor m surf ace).
 3

   The Secretary argues that this violation should be classified as repeated based on a

1997 final order for a prior sc affold gu ardrail violation by Midw est that was itself a repeated
violation. Administrative Law Judge Benjamin Loye had affirmed that violation under the
former 29 C.F.R. § 192 6.451(d)(10). 3 Midwest Masonry, Inc., 18 BNA OSHC 1431, 1997
CCH OSHD ¶ 31,404 (No. 96 -1462, 1997) (A LJ). The repeated v iolation there occurred at
another Midwest masonry construction project in Kearney, Nebraska. Midwest’s employees
had been working on the upper level of a scaffold, 13 feet 6 inches ab ove grou nd level,
without guardrails. Several of those e mployees were removing mortar from a tub and placing
it on mortar boards. A nother em ployee was using a m asonry saw to cut block. Windhorst was
presen t during that insp ection.
Judge Loye in his 1997 decision found that violation itself to be re peated, based on
a 1994 final order affirming a substantially similar violation by Midwest. He rejected
Midwest’s claim that the cited standard w as not app licable to the sc affold be cause scaf fold
assembly had not yet been completed. “In essence, Midwest contends that its scaffold was
not complete because n o guardra ils had been installed.” He noted that Midwest’s reasoning
would lead to the “absurd result” that the guardrail requirement would never apply until the
guardrails had been installed.
JUDGE’S DECISION
In the case on review, the judge affirmed the citation item insofar as it alleged a
violation of section 1926.451(g)(4)(i), because work other than erection work was done on
the second level of the scaf fold be fore m idrails w ere in pla ce. Ho weve r, he rejected the
Secretary’s argument that it was a repeated violation, and instead classified it as serious. The
judge ruled tha t the v iolat ion w as no t repeate d becaus e “no masonry work was being
performed. No brick was being cut or laid; Midwest’s employees were exposed only for the
brief periods it took them to stock the second level platform, an activity that they believed

3
At that time, the provision stated: “Guardra ils . . . approximately 42 inches high, with a
midrail . . . and toeboards, shall be installed at all open sides and ends on all scaffolds more
than 10 feet ab ove the groun d or flo or.”
 4

was part of the erection process.” He stated that he could not “find that the earlier violation
placed Midwest on notice that the Secretary’s interpretation of ‘erection’ would not include
stocking and enclosing scaffolding.” He further found that “Midwest believed, in good faith,
that its practices conformed to the requirements of the cited standard.” The judge concluded
that the cited violation was not substantially similar to the violation affirmed in 1997 and thus
not rep eated. H e classif ied it as se rious an d asses sed a re duced penalty o f $100 .
DISCUSSION
The merits of the violation are not on review. The only issues before us are the
classific ation an d pena lty.
A. Repeat Classification
“A violation is repeated under section 17(a) of the Act [29 U.S.C. § 666(a)], if, at the
time of the alleged repeated violation, there was a Commission final order against the same
emplo yer for a s ubstan tially similar violatio n.” Potlatch Corp., 7 BNA OSH C 1061, 1063,
1979 CCH OSH D ¶ 23,294, p. 28,171 (No. 16183, 1979). The Secretary may establish a
prima facie case that a violation is repeated by showing that the two violations were of the
same standard, or if they were n ot, that they otherwise wer e substa ntially simila r. Id.
(“substantially similar” test exp lained, with illustration that permitting use of unguarded
scaffold for two different pro jects -- such as construction w ork the first time, and replacing
light bulbs the second time -- could result in repeated violation under two entirely different
standards). See J. L. Foti Construction v. OSHRC, 687 F.2d 853, 857 (6th Cir. 1982)
(Commission’s test in Potlatch that repeated violation may be based on “substantially
similar” violations of different stand ards upheld as “reaso nable”). 4

4
See also John R. Jurgensen Co., 12 BNA OSHC 1889, 1893, 1986-87 CCH OSHD
¶ 27,641, pp. 35,968 -69 (No. 8 3-1224, 1 986) (failure to protect em ployees from cave-in
hazards under standard dealing w ith “unstable or soft” soil was su bstantially similar to failure
to protect em ployees from same haz ards unde r different sta ndard de aling with “hard or
compact” soil); Farmers Cooperative Grain and Supply Co., 10 BNA OSHC 2086, 2089,
1982 CCH OSHD ¶ 26,301, p. 33,263 (No. 79-1177, 19 82) (prior and subseq uent exposure
(contin ued...)
 5

    The language of the standard cited here is somewhat different from the one Midwest

violated in the 1997 case, but it is the successor standard to that one, and both standards
require midrails on scaffolds more than ten feet ab ove a lo wer lev el. See Final Rule: Safety
Standards for Scaffolds Used in the Construction Industry, 61 Fed. Reg. 46,026, 46,027
(1996). We need n ot decide here wh ether they are different standards. We will treat them as
differe nt for p urpose s of de ciding th is case.
“[T]he principal fac tor in determ ining wh ether a violatio n is repeated is whether the
two violations resulted in substantially similar hazards.” Amerisig Southeast, Inc., 17 BNA
OSHC 1659, 1 661, 19 95-97 CCH OSH D ¶ 31 ,081, p. 4 3,364 ( No. 93 -1429 , 1996) , aff’d
without published opinion, 117 F.3d 1433 (11th Cir. 1997). Here, the hazards created by the
prior and current violations are the same -- fall hazards from scaffolds due to lack of required
safety railings. See Superior Elec. Co., 17 BNA OSHC 1635, 1638, 1995-97 CCH OSHD
¶ 31,060, p. 43,323 (N o. 91-1597, 1996 ) (installing guardrails without midrails on w ork
platform resulted in sam e hazard a s installing no g uardrails at all), rev’d on other grounds
without published opinion, 124 F.3d 199 (6th C ir. 1997); Automatic Sprinkler Corp. of
America, 8 BNA OSHC 1384, 1389-90, 1980 CCH OSH D ¶ 24,495, p. 29,928 (No. 76-5089,
1980) (minor factual distinc tions do no t make sca ffold gua rdrail violations dissimilar -- same
hazards ex ist in all instan ces). Compare Monitor Constr. Co., 16 BNA OSHC 1589, 1594,
1993-95 CCH OSH D ¶ 30,338, p. 41,826 (No. 91-1807, 1994) (hidden h azard of f alling into
manhole when its cover breaks or shifts not substantially similar to obvious and routine
hazard of stum bling in to beam trough ).

4
(...continued)
of employees to fire and explosio n hazards due to exc essive grain dust accum ulations in
grain elevator were repeated violations, even though first violation was of general duty clause
and second violation was o f stand ard). Cf. GEM Industrial, Inc. 17 BNA OSH C 1861, 1866,
1995-97 CCH OSH D ¶ 31,197, p. 43,691 (No. 93-1122, 1996) (evidence regarding hazards
and means of abating prior Gen eral Duty Cla use violation too limited to conclude that it was
substantially similar to violation of standard requ iring ironworkers to use fall arrest syste m.)
 6

   “Under Potlatch, circumstances such as the geographical proximity of the violations,

the commo nality of superv isory control ov er the violative condit ion, and the time lapse
between the violations bear only on the size of the penalty to be assessed, not on the
‘repeated’ character of the infractions.” J. L. Foti, 687 F.2d at 857. “Factors such as the
employer’s attitude . . . were declared irrelevant, how ever, to the substantial similarity of the
past and present violations.” Bunge v. Sec’y of Labor, 638 F.2d 831, 83 7 (5th Cir. 1981).
Further, contrary to M idwest’s arg uments, the surround ing circumstances here are almost
indistinguish able from those at issue in 1997. Both cases involve missing safety railings on
brickmasons’ scaffolds, at the same approximate height. In both cases the exposure involved
laborers (“tenders”) w ho were doing w ork prepa ratory to the masons’ work. The required
abatement in the two cases -- installation o f a proper g uardrail -- is iden tical. The on ly
difference is that here the employees were placing a masonry saw, mud board, and other
materials on a platform, whereas in the prior case they were using a masonry saw, mud board,
and other materials on a platform. The hazards, however, are the same and we find, based on
the foregoing, that the current violation is substantially similar to the repeated violation
affirmed in 1997. Thus, we affirm the current violation as repeated.5
Midwest argues against the repeated classification on the ground that it lacked notice
that the cited conditions vio lated the stand ard. Midw est claims its lack of notice is
corroborated by the judge’s finding that “Midwest believed, in good faith, that its practices
conformed to the requirements of the cited standard.” To the extent that Midwest contends

5
Midwest argued in its cross-petition for review (that was untimely filed, since it was
received two days after the period fo r granting review expired (Rule 91(e) of the
Commission’s Rules of Procedure, 29 C.F.R. § 2200.91(e))) that the Secretary’s three-year
rule for citing a violation as repeated is discriminatory, because it measures from the final
order date or final abatement date, rather than the citation date. Mid west did not address that
argument in its review brief, however, even though the Commission’s briefing notice was
broadly worded. We therefore deem the argument abandoned by Midwest, and we need not
address it. See Ragnar Benson, Inc., 18 BNA OSHC 1937, 1938, 1999 CCH OSH D ¶ 31,932,
p. 47,371 (No. 97-1676, 1999) (“[t]he Commission need not review an issue abandoned by
a party”).
 7

it lacked fair notice of the cited requirement, the issue bears on the existence of the
underlying violatio n. See, e.g., Sec’y of Labor v. OSHRC (CF & I Steel C orp.), 941 F.2d
1051, 1058 (10th Cir. 1991) (resolution of whether violation occurred turns on whether
employer had fair notice of Secretary’s reas onable inte rpretation of cited standa rd); Brock
v. L. R. Willson & Sons, Inc., 773 F.2d 1377 , 1387 (D.C. Cir. 1985) (stan dard is enf orceable
where it is sufficient to p ut employer o n notice of proscribed conduct); National Industrial
Constructors, Inc. v. OSHRC, 583 F .2d 1048, 1054 (8th Cir. 1978) (same). However, the
underlying violation is not on review here.6 Once the underlying violation is established, the
employer’s alleged go od faith belief does not negate the classification of a violation as
repeated. See Jersey Steel Erectors, 16 BNA OSHC 1162, 1168, 1993-95 CCH OSHD
¶ 30,041, p. 41,221 (No. 9 0-130 7, 1993 ), aff’d without published opinion, 19 F.3d 643 (3d
Cir. 1994) (once existence of violation is establishe d, “an em ployer’s inadeq uate attemp ts
to comply are not relevant to w hether a violation was rep eated”). 7
To the extent that Midwest contends that it lacked fair notice of the “substantial
similarity” of the hazards, we find that its argument is without merit. Midwest fails to take
into account that the 1997 decision expressly adopted the Secretary’s po sition “that asse mbly
is complete, and the standard applicable o nce emp loyees begin working from the scaffol7-

6
In any event, as discussed below, we find that Midwest had fair notice of the cited
requirement from s everal s ources -- the stan dard, its p reamb le, and th e 1997 decisio n. Cf.,
e.g., Ed Taylor Constr. Co. v. OSHRC, 938 F.2d 1265 , 1272 (11th Cir. 1991) (“[w]hether or
not employers are in fact aware of each OSHA regulation and fully understand it, they are
charged with this knowledge and are responsible for compliance. . . . It is no defense that
they did not understand the reaso nable interpretation of a regulation .”)
7
Even if good fa ith were an appropriate consideration here, the judge did not provide a
factual basis for his conclusion with respect to good faith. Furthermore, we note that
Midwest’s asserted belief that stocking the scaffold “was a prerequisite to enclosing it, and
encl osin g it w as clearly a part of the e rection proc ess,” is belied by Ch ristensen’s af fidavit
acknowledging that Midwest stock ed the platform w ith mortar after enclosing the scaffold
with pl astic.
 8

ding.” Although Midwest takes great pains to distinguish between stocking brick and laying
brick, they are both “ work,” an d employee s perform ing either activ ity on the scaff old
platform without m idrails wou ld be expo sed to a fall h azard of o ver 13 fee t.8 The 1997
decision thus gave Midwest fair notice that guardrails must be installed before the sort of
work involv ed here begins .
In any event, the language of the cited stan dard clearly requires guardrails before the
“scaffold is released for use by employees other than erection/dismantling crews.” That
provision p uts employers on notice th at guardrails are required before any work other than
erection or disman tling is done. The Preamble to the standard clearly confirms that meaning.
In the case of supported scaffolds, installation [of the required guardrails] must
occur before employees are permitted to work from the scaffold. When an
employee is on a supp orted scaff old during the scaffold erection process, fall
protecti on is co vered b y final rule paragr aph (g) (2).
Final Rule: Safety Standards for Scaffolds Used in the Construction Industry, 61 Fed. Reg.
46,026 (1996) (empha ses added). 9 (The scaf fold here was a “supported scaffold.” See section
1926.450(b).)
For the reason s abov e, we f ind the v iolation repeate d.

8
The definition of a “scaffold” at 29 C.F.R. § 1926.450(b) does not distinguish between types
of work do ne on it. Ra ther, the defin ition provide s that a scaffold’s use is “for supporting
employees or materials, or both.” (E mphasis added .)
9
In addition , paragr aph (g) (2) prov ides tha t, even if an employer were still in the erection
process, which Midwest was not here, it would be required “to provide fall protection for
employees erecting or dismantling supported scaffolds where the installation and use of such
protection is feasible an d does no t create a grea ter hazard.” (T he judge f ound that f all
protection was feasible here. Midwest does not question that ruling, and has not suggested
that com pliance might h ave cre ated ha zards o f its ow n.)
 9

B. Penalty
Under the Act, the Commission must give “due consideration . . . to the
appropriateness of the penalty with respect to the size of the business of the employer being
charged, the gravity of the violation, the good faith of the employer, and the history of
previous violations.” 29 U.S.C. § 666(j). Midwest was a relatively small employer,
employing 20 to 30 p eople in winter and 30 to 50 the rest of the year. It had an aggravated
history of scaffold violations, however. The scaffold guardrail violation affirmed in 1997 was
itself a repeated violation. Also, ano ther repeated violation wa s affirmed in that 1997
decisio n for lac k of sa fe acce ss to a sc affold .
The gravity of the current violation is moderate, because the fall distance here was
about 13 feet 4 inches, and o nly the midrails were missing. Th ere was no testimony as to how
long the employees’ exposure continued. On the other hand, we agree with the Secretary that
no credit for good faith is due.
The Secretary proposed a penalty of $5,000. Given M idwest’s aggravated h istory of
scaffold guardrail violations, and the ineffectiveness of the $1,250 penalty it received in 1997
for a substantially similar violation, we find that a penalty of $5,000 is appro priate. See, e.g .,
Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130-31, 1993-95 CCH OSHD ¶ 30,621,
pp. 42,411-12 (No. 92-851, 1994) (fact that violations were repeated diminishes effect of
good s afety pro gram a nd low chanc e of ac cident).
 10

                                          ORDER
    Thus, we affirm as repeated Midwest’s violation of 29 C.F.R. § 1926.451(g)(4)(i), and

we ass ess a pe nalty of $ 5,000 f or that v iolation .
SO ORDERED.

                                                      /s/
                                                      Thomasina V . Rogers
                                                      Chairman




                                                      /s/
                                                      Ross Eisenbrey
                                                      Commissioner

Dated: September 7, 2001
 SECRETARY OF LABOR,
Comp lainant,

                        v.                                OSHRC DOCKET NO. 00-0322

MIDWEST MASONRY, and its successors,
Respon dent.

APPEARANCES:

   For the Co mplainant:
            Oscar L. Hampton, III, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri

   For the Re sponde nt:
            Dean G. Kratz, Esq., McG rath, North, Mullin and Kratz, PC, Omaha, Nebraska

Before: Administrative Law Judge: Stanley M. Schwartz

                                    DECISION AND ORDER

   This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Midwest Masonry, and its successors (Midwest), at all times relevant to this
action maintained a place of business at the University of Nebraska, Kearney West Campus,
Kearney, Nebraska, where it was engaged in bricklaying. Respondent admits it is an employer
engaged in a business affecting commerce and is subject to the requirements of the Act.
On December 10-15, 1999 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Midwest’s Kearney work site. As a result of that inspection, Midwest
was issued citations alleging violations of the Act together with proposed penalties. By filing a
timely notice of contestMidwest brought this proceedingbefore the Occupational Safetyand Health
Review Commission (Commission).
On May 25, 2000, a hearing was held in Omaha, Nebraska. The parties have submitted briefs
on the issues and this matter is ready for disposition.

                                         Alleged Violations
   Repeat citation 1, item 1 alleges:

29 CFR 1926.451(g)(4)(i): Midwest Masonry - Utilizing a scaffold without the use of a complete
guardrail system. The contractor was using cross braces for a top rail but the guarding system lacked
a mid rail.
 The cited standard provides:

    §1926.451(g) Fall protection. (i) Each employee on a scaffold more than 10 feet (3.1 m)
    above a lower level shall be protected from falling to that lower level.. . .
                                              ***
    (i) Guardrail systems shall be installed along all open sides and ends of platforms. Guardrail
    systems shall be installed before the scaffold is released for use by employees other than
    erection/dismantling crews.

Facts
OSHA Compliance Officer (CO ) Dean Craig testified that he arrived on Midwest’s Kearney
work site just before 11:30 a.m., December 10, 1999, at which time he observed and videotaped
Midwest’s scaffolding (Tr. 22, 32-33; Exh. C-1). Craig testified that the first level of the scaffold
was 6 feet, 10 inches above the ground (Tr. 42). An outrigger extended between the scaffolding and
the building being bricked (Tr. 41-42). The second scaffold level was 6 feet, 6 inches above the first
platform, 13 feet, 4 inches above the ground (Tr. 43). CO Craig testified that the second tier of the
scaffold was guarded with cross bracing that intersected approximately42 inches above the platform
(Tr. 48). Craig testified that, according to OSHA §1926.451(g)(4)(xv), cross bracing 42 inches high
could be substituted for the top rail of a guardrail system (Tr. 47). To comply with subparagraph
451(g)(4), however, a guardrail system must also include a midrail at 22 inches above the scaffold
platform (Tr. 48). Craig stated that there were no midrails on any of Midwest’s scaffolding (Tr. 49).

    Craig admitted that no one was laying brick on the scaffolding at the time of the OSHA

inspection; however, he concluded that Midwest employees had been working from the second level
of the scaffold. Craig based his conclusion on the presence of bundles of bricks on the second level
platform; he noted that the bands around some of the bundles had been broken (Tr. 34, 36). Craig
also observed a masonry saw, a mud board and a pair of coveralls on the second level (Tr. 35, 40,
44; Exh. C-1).
CO Craig testified that he interviewed Midwest employees including Martin Christensen,
who also provided a written statement (Tr. 26, 61, Exh. C-2). In his written statement, Christensen
stated that work on the first level of scaffolding began on the 5th or 6th of December (Exh. C-2, p. 1).
Christensen stated that on December 9, brick was laid from the outrigger above the first level (Exh.
C-2, p. 2). He indicated that once the brick had been laid up to the outrigger they began erection of
the second and third scaffold level(Exh. 2, p. 3). When CO Craig arrived on the job site on
December 10, they had finished the second level frames, planked the platform and stocked it, and
 were working on the third level planking (Exh. C-2, p. 4). It was Christensen’s contention that, in
the winter, during the erection process, platforms are stocked with bricks and equipment before work
begins, so the scaffolding can be encased in plastic and heated before the masons begin working.10
(Exh. C-2, p. 3, R-2; See also, testimony of Doug Windhorst, Tr. 225-27).
Christensen further maintained that no brick had been placed from the second level (Exh. C-
2, p. 4). The brick, mudboard, masonry saw and coveralls had been placed on the second level in
anticipation of its enclosure in plastic, which would limit access to the scaffold platform (Exh. C-2,
p.3). The plastic bands on the brick had been broken during their placement, by forklift, on the
second level platform (Exh. C-2, p. 3). However, Doug Windhorst, Midwest’s president, admitted
that employees stocking the second level platform worked at the perimeter (Tr. 234, 240).
Windhorst knew there were no midrails in place during this process (Tr. 223). According to
Windhorst, midrails were installed immediately following the inspection (Tr. 246).
Discussion
Erection. The central issue raised by Respondent is that the cited standard was not
applicable to its operation because the cited scaffold was still being erected and had not been
released for use by employees other than the erection crew.
Christensen was the only witness with first hand knowledge of the work being done on the site
at the time of the inspection, and this judge credits his statement to the effect that no brick was laid from
the second level. It had, nonetheless, been used by employees other than the erection crew, for purposes
unnecessary to the erection process. Though Respondent’s counsel argues that it was not necessary for
employees to access the second level to place the mud board, masonry saw and coverall there, the
videotape shows, and Doug Windhorst admitted at the hearing that Midwest’s crew worked at the
perimeter of the scaffolding stocking brick. Windhorst admits that brick is not used in the erection of
scaffolding (Tr. 233-34).
The Secretary takes the position that “erection” includes only those steps necessary to the
installation of structural members and guarding required by OSHA. The Complainant maintains that
stocking and enclosure of the scaffolding is not necessary to, and, therefore, not part of the erection
process. The Secretary’s interpretation of “erection” is neither clearly erroneous, nor inconsistent with
the regulation itself, and so must be accorded deference. See, Martin v. OSHRC (CF&I Steel Corp.),

10
Doug W indhorst, M idwest’s presid ent, conced ed that, in this case, the weather was warm enough that enclosure of
the second and third leve l scaffolds neve r became necessary (T r. 212, 24 2, 245).
111 S.Ct. 1171, 1179 (1991); Udall v. Tallman, 380 U.S. 1, at 16, 87 S.Ct. 792, at 801 (1965). Under
the Secretary’s definition of the term, enclosure of the scaffolding is an extra step; it is not part of the
erection process. Because Midwest allowed employees to use the incompletely guarded scaffolding
to perform work other than erection, i.e., stocking brick and tools, the cited standard was correctly
applied. The Secretary has established the cited violation.
Infeasibility. Though not specificallypleaded prior to the hearing, it is, in essence, Midwest’s
argument that it is infeasible to completely erect its scaffolding before the brick is loaded onto the
platforms. Windhorst and Christensen’s explanation of Midwest’s winter scaffold erection procedure
is lucid, as well as consistent with the physical evidence observed byCO Craig. It is clear that the brick
cannot be stocked after it is enclosed in plastic. This judge appreciates that Midwest anticipated
enclosing the second level, and so stocked it, though it later proved unnecessary to enclose that level.
What Midwest did not explain, was why midrails could not be installed on the otherwise complete
scaffolding prior to allowing employees to stock the second level. In its brief, Midwest argues that it
would have had to remove the midrails to load brick onto the second level scaffold (Brief of
Respondent, p. 30). Midwest did not raise this point either prior or during the hearing, and bases its
argument solely on the Complainant’s videotape of the scaffold. Midwest maintains that Complainant
failed to demonstrate how the bundles of brick could have been loaded onto the second level platform
with the midrails in place.
The Commission has held, however, that infeasibility is an affirmative defense. In Seibel
Modern Mfg & Welding Corp., 15 BNA OSHC 1218, 1991-93 CCH OSHD ¶29,442 (No. 88-821, 1991)
the Commission found any employer seeking to be excused from implementing a cited standard’s
abatement measure has the burden of establishing not only that the prescribed measure is infeasible, but
that alternative protective measures were used or that there were no feasible alternative measures. After
viewing Complainant’s videotape, this judge cannot conclude that the installation of midrails would
have prevented the stocking of bricks onto Midwest’s work platform. Moreover, Midwest failed to
introduce any evidence that alternative protective measures were taken to protect employees engaged
in unloading brick.
This judge commends Midwest for taking the extra step of enclosing its scaffolding during cold
weather. However, on this record I cannot conclude that it is infeasible to complete the guarding of the
otherwise completed scaffold prior to either its stocking and enclosure in plastic. Midwest failed to
carry its burden establishing the affirmative defense of infeasibility and the cited violation will be
affirmed.
Classification & Penalty
Repeat. CO Craig testified that the violation was cited as a “repeat” violation, because Midwest
was previously cited for a violation of an equivalent standard. As a result of OSHA inspection number

116003997, Midwest was cited for a violation of 29 CFR 1926.451(d)(10), which requires that

“Guardrails. . .approximately 42 inches high, with a midrail . . .and toeboards shall be installed at all
open sides and ends on all scaffolds more than 10 feet above the ground or floor.” That citation was
affirmed, and became a final order effective September 10, 1997. Midwest Masonry, Inc., 18 BNA
OSHC 1431, 1997 CCH OSHD ¶31,404 (No. 96-1462, 1997).
A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated
violation, there was a final order against the same employer for a substantially similar violation.
Potlatch Corporation, 7 BNA OSHC 1061, 1979 CCH OSHD ¶23,294 (16,183, 1979).11 The
Secretary has the burden of establishing that two violations are substantially similar. See, GEM
Industrial Inc., 17 BNA OSHC 1861, 1996 CCH OSHD ¶31,196 (No. 93-1122, 1996).
Respondent’s previous citation arose out of a September 19, 1996 inspection (Exh. J-1), and
involved four masons cutting block and moving mortar from mortar tubs to boards for approximately
30 minutes on an unguarded scaffold. That violation placed Midwest on notice of the need to take steps
to avoid similar occurrences. See, Caterpillar, Inc. v. Herman, 154 F.3d 400 (7th Cir. 1998). However,
in this case, no masonry work was being performed. No brick was being cut or laid; Midwest’s
employees were exposed only for the brief periods it took them to stock the second level platform, an
activity that they believed was part of the erection process. While I am constrained to uphold the
Secretary’s reasonable interpretation of the term “erection,” I cannot find that the earlier violation
placed Midwest on notice that the Secretary’s interpretation of “erection” would not include stocking
and enclosing scaffolding. The record establishes that Midwest believed, in good faith, that its practices
conformed to the requirements of the cited standard. The cited violation is not, therefore, substantially
similar, and not “repeated.”
Penalty. In determining the penalty the Commission is required to give due consideration to
the size of the employer, the gravity of the violation and the employer's good faith and history of
previous violations. Nacirema Operating Co., 1 BNA OSHC 1001, 1972 CCH OSHD ¶15,032 (No.

11
In order to ensure unifor mity, the Secre tary issues a “rep eat” citation o nly if a citation for a sub stantially similar
violation became a final order within the preceding three years (Field Inspection Reference Manua l CPL 2.1 03). At the
hearing, a May 19, 1995 final order affirmin g a violation o f §1926 .451(a)( 4) was foun d to fall outside the Secretar y’s
internal guidelines (Tr. 77). That violation is not considered here.
4, 1972). Midwest is a small employer. Craig testified that the penalty was adjusted based on the size
of the employer (Tr. 76-77). CO Craig gave no credit for history or for good faith because Midwest was
cited previously for a violation of a substantially similar violation. As discussed above, the cited
violation was not repeated; Midwest acted in good faith. The most recent violation for which Midwest
was cited took place more than three years prior to the 1999 inspection.
CO Craig testified that a fall from a height of 13 feet, 4 inches could result in serious injury,
ranging from broken bones up to and including death (Tr. 75). The violation is “serious,” in that an
accident, should it occur, could result in serious injury. However, the Secretary overstates the gravity
of the violation.
The gravity of the offense is the principle factor to be considered in determining an appropriate
penalty. Id. Factors to be considered in determining the gravity of a violation include: (1) the number
of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken
against injury, if any; and (4) the degree of probability of occurrence of injury. Kus-Tum Builders, Inc.
10 BNA OSHC 1049, 1981 CCH OSHD ¶25,738 (No. 76-2644, 1981). CO Craig stated that he rated
the gravity of the violation as high (Tr. 74). There is, however, no direct evidence of exposure in this
case; only three Midwest employees were on the site, one of whom drove the fork lift (Exh. 2, p. 2).
There is no evidence establishing the duration of the exposure. Because the employees were mainly
engaged in offloading the forklift, they would have been aware of their proximity to the edge of the
platform. The scaffold was partially guarded with cross bracing, which would have provided some
measure of protection. In Orion Construction, Inc. (Orion), 18 BNA OSHC 1867, 1999 CCH OSHD
¶31,896 (No. 98-2014, 1999), the Commission found that the gravity of a violation involves not only
the number of employees exposed and the duration of exposure, but the degree of probability of an
accident. In that case, the Commission found that the extremely low probability of an accident
occurring justified a penalty assessment of $100.00 per violation.
Here, as in Orion, the extremely low probability of an accident, coupled with the small size of
the employer and its good faith attempts to comply with OSHA standards justifies a low penalty;
$100.00 will be assessed.
ORDER

1. Citation 1, item 1, alleging violation of §1926.451(g)(4)(i) is AFFIRMED as a “serious”
   violation, and a penalty of $100.00 is ASSESSED.
   /s/
   Stanley M. Schwartz
   Judge, OSHRC
   Dated: September 11, 2000