Ingram Plastering and Company, Inc.

Plain-English summary

Ingram Plastering employees performed exterior stucco work from scaffolding up to about 23 feet high. The judge found that work levels were not fully planked, no qualified competent person inspected the scaffold before shifts, employees did not consistently wear hard hats, and one employee lacked required fall protection at the 12-foot level. He rejected the company's lack-of-knowledge defense because management did not inspect the scaffold or adequately supervise the crew. He also rejected the hard-hat employee-misconduct defense because the rule was not effectively communicated, monitored, or enforced. The hard-hat and scaffold fall items were repeat based on prior final citations. All four items were affirmed, and proposed penalties totaling $15,800 were reduced to $10,800.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(b)(1), 1926.451(f)(3), 1926.100(a), and 1926.451(g)(1)(vii)
• Outcome: Two serious and two repeat violations affirmed; total penalties reduced to $10,800.
• Key point: Hiring another company to erect scaffolding does not eliminate the using employer's duty to inspect, supervise, and protect its own workers.

Full text (OSHRC public release)

                                          United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building - Room 2R90, 100 Alabama Street, SW
                                        Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 02-0173
Ingram Plastering and Company, Inc., EZ
Respondent.

Appearances:

Kathleen G. Henderson, Esq., Office of the Solicitor, U. S. Department of Labor, Birmingham, Alabama
For Complainant

Douglas W. Ingram, Esq., Birmingham, Alabama
For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER
       Ingram Plastering and Company, Inc. (IP), is a small contractor engaged in exterior stucco

and interior plastering work. On November 30, 2001, IP began work installing exterior stucco
around the roof eaves of the two-story BankPlus building in Jackson, Mississippi. Based on the
observation of the worksite by an Occupational Safety and Health Administration (OSHA)
discrimination inspector on November 30, 2001, a referral inspection was conducted by OSHA
compliance officer (CO) Colleen K. D. Darrell on December 4 and 7, 2001. As a result of this
inspection, IP was issued serious and repeat citations on January 8, 2002.1 IP timely filed a notice
of contest.
Citation 1, Item 1, alleges a serious violation of 29 C. F. R. § 1926.451(b)(1) for failing to
fully plank or deck all working levels of scaffolding; and Item 2 alleges a serious violation of 29

1
The Secretary’s motion to amend the citations to reflect the dates of the alleged violations to be November 30 and
December 7, 2001, and the height of the scaffolding to be 22-24 feet are granted (Tr. 9, 288). IP is not prejudiced
by the amendments. The parties do not dispute the dates of inspection and the height of scaffolding.
C. F. R. 1926.451(f)(3) for failing to have a competent person inspect the scaffolding for visible
defects before each work shift and after any occurrence which could affect the scaffold’s structural
integrity. The penalty for each serious violation is $1,400.00.
Citation 2, Item 1, alleges a repeat violation of 29 C. F. R. § 1926.100(a) for failing to protect
employees exposed to overhead hazards by wearing hard hats; and Item 2 alleges a repeat violation
of 29 C. F. R. § 1926.451(g)(1)(vii) for failing to provide fall protection for employees working on
scaffolding more than 10 feet above the ground. The total penalty for the repeat violations is
$13,000.00.
The case was designated for E-Z trial procedures under 29 C. F. R. § 2200.200, et seq. The
hearing was held on April 25-26, 2002, in Jackson, Mississippi. IP stipulates jurisdiction and
coverage. IP was represented by attorney Douglas W. Ingram, father of Martin and Roman Ingram,
president and vice-president respectively, of IP. Attorney Ingram has no capacity in IP.
IP denies that it violated the scaffolding standards because it lacked knowledge of the
violations. The scaffolding was erected by a subcontractor. IP asserts the affirmative defense of
unpreventable employee misconduct as to the hard hat violation.
For the following reasons, IP’s lack of knowledge and employee misconduct defenses are
rejected, the violations are affirmed, and a total penalty of $10,800.00 is assessed..
Background
IP is a small construction company specializing in stucco and plastering. Its office is in
Jackson, Mississippi, and it does business throughout the state. IP has been in business for 20 years
and was incorporated as Ingram Plastering and Company, Inc., in 1999 (Tr. 21). At the time of the
inspection, IP had a total of 9 employees, including Martin Ingram, the president; his brother Roman
Ingram, the vice-president and foreman; and his wife, Christine Ingram, the office manager. The
remaining employees are plasterers, called “mechanics” by IP, and laborers who assist the
mechanics.
In November, 2001, H & P Construction hired IP to install exterior stucco around the roof
eaves of the 2-story BankPlus building under construction in Jackson, Mississippi. The job involved
first, hanging an exterior fiberglass sheetrock, called dens glass, then applying styrofoam primace,

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which is a base coat adhesive, and installing styrofoam shapes, mesh, and an exterior insulation
finish system (Exhs. C-1, C-9; Tr. 25, 29).
IP rented scaffolding from Direct Scaffolding, who erected tower scaffolding up to the
cornice work and completely around the BankPlus building (Tr. 243). According to Chris Reichle,
manager and partner of Direct Scaffolding, the height of each scaffolding section was 6 feet 4 inches
for a total height of 22 feet 3 inches to 23 feet 3 inches (depending on the level of the ground)
(Tr. 259, 260). Direct Scaffolding finished erecting the scaffolding on Monday, November 26, 2001,
and turned it over to IP (Tr. 255). Reichle testified that the completed scaffolding was fully decked
and guardrailed at the top level (Tr. 255).
IP began work on Friday, November 30, 2001. When Roman Ingram arrived at 7:00 a.m.,
there were 6 employees on site: Martin Ingram; mechanics David Matthews, Todd Craft, and Robert
Davenport; and laborers Bruce Warren and Walter Mayberry (Tr. 27-29, 104, 279). Everyone was
unloading work materials from a delivery truck (Tr. 27). After a short time on site, Martin Ingram
left the jobsite, followed by Roman Ingram at approximately 7:30 – 7:45 a.m. Before he left, Roman
Ingram instructed the employees to finish unloading the truck and to start work (Tr. 280, 283). After
unloading the truck, the employees began installing the dens glass under the roof eaves (Exh. C-1).
When foreman Roman Ingram is not on site, no one is left in charge (Tr. 284).
Around 11:00 a.m. that same day, OSHA discrimination inspector Johnny O. McDowell was
driving by the BankPlus construction site while running errands. McDowell observed that
employees were working on scaffolding over 10 feet high without fall protection (Tr. 119). He
stopped his car at a service station across the street from the BankPlus building and took photographs
of the employees and the site for about 10 minutes (Exh. C-1, Photos 1, 2; Exh. C-9). After finishing
his errands, McDowell returned around 12:50 p.m. and took additional photographs for another 10
minutes (Exhs. C-1, C-9; Tr. 132). He returned to the OSHA office and made a safety referral
(Tr. 128).
On December 4, 2001, CO Darrell inspected the BankPlus worksite. She met with Barry
Cook, superintendent for the general contractor H & P Construction (Tr. 160). No one from IP was
at the worksite because they were waiting for supplies to be delivered. Cook telephoned Martin

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Ingram, who came to the site along with Keith Tisdale of Direct Scaffolding. CO Darrell held an
opening conference with them.
CO Darrell returned to the site on December 7, 2001, in order to interview IP employees who
were returning to work that day. IP employees were installing styrofoam shapes (Exh. C-1, Photo
4). Martin Ingram and other IP employees were dismantling scaffolding on the rear of the building
where they had finished the stucco work (Tr. 171). The contract between IP and Direct Scaffolding
provided that IP would dismantle the scaffolding after completing work on a section of the building
so that the bricklayers could begin their work (Tr. 110).
DISCUSSION
Alleged Violations
The Secretary has the burden of proving, by a preponderance of the evidence, a violation of
the standard. In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving:
(a) the applicability of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the violation (i. e., the employer
either knew, or with the exercise of reasonable diligence could have known, of the
violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
IP does not dispute the applicability of the construction standards to its work. Also, it is
undisputed that IP employees were exposed to the violative conditions.
Alleged Serious Violation of 29 C. F. R. § 1926.451(b)(1)
The citation alleges that IP failed to provide personal fall protection to employees who were
working on a single manufactured plankboard on a scaffold which was not guarded with standard
guardrails. Section 1926.451(b)(1) provides, in pertinent part:
(b) Scaffold platform construction. (1) Each platform on all working levels of
scaffolds shall be fully planked or decked between the front uprights and the
guardrail supports.

   According to CO Darrell, the violation is based on the conditions observed on November 30,

2001 (Exh. C-1, Photo 1; Exh. C-9, Photo 8). OSHA discrimination inspector McDowell observed

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an employee on the ground passing up dens glass panels to an employee on the first level of the
scaffold (6 feet 3 inches high), who in turn passed it up to an employee on the second level (12 feet
3 inches high), then up to an employee on the top level (Tr. 123). The employees were standing on
one plank or pic board which was 18 inches wide (Exh. C-9, Photo 8; Tr. 125, 169). The work levels
were not fully planked.
IP does not dispute that employees were standing on work levels that were not fully planked.
IP contends that it had no knowledge of the unsafe conditions of the scaffold because neither Martin
nor Roman Ingram was on the worksite on November 30, 2001, when employees were on the
scaffold.
Knowledge
The test for knowledge is whether “the employer either knew, or, with the exercise of
reasonable diligence, could have known of the presence of the violative condition.” Pride Oil Well
Service, 15 BNA OSHC 1809, 1814 (No. 87-692, 1992).
On November 30, 2001, when the Ingrams left the worksite, the employees were unloading
the delivery truck. Roman Ingram told them to start work after the truck was unloaded. Neither
Ingram was there when the employees began work on the scaffold. There is no evidence that either
Ingram looked at or examined the scaffolding before they left the worksite. IP lacked actual
knowledge that employees were working on scaffolding that was not fully planked.
An employer who lacks actual knowledge can nevertheless be charged with constructive
knowledge. Constructive knowledge involves the exercise of reasonable diligence by the employer.
“Reasonable diligence requires the formulation and implementation of adequate work rules and
training programs to ensure that work is safe, as well as adequate supervision of employees.” N & N
Contractors, Inc., 18 BNA OSHA 2121, 2123 (No. 96-0606, 2000), aff’d. 255 F.3d 122 (4th Cir.
2001). Reasonable diligence also requires that an employer “make a reasonable effort to anticipate
the particular hazards to which its employees may be exposed in the course of their scheduled work.”
Automatic Sprinkler Corporation of America, 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980). See
also Texas A. C. A., Inc.,17 BNA OSHC 1048, 1050 (No. 91-3467, 1995). Specifically, an employer
must “determine what hazards exist or may arise during the work” and “must then give specific and
appropriate instructions to prevent exposure to unsafe conditions.” Automatic Sprinkler at 1387.

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In essence, an employer is obligated to inspect the work area, anticipate hazards to which employees
may be exposed, and take measures to prevent the occurrence. Pride Oil Well Service, supra, at
1814.
With the exercise of reasonable diligence, IP could have discovered that the scaffolding had
only 1 plank instead of 2 planks, forcing employees to work on an 18 inch platform as much as 23
feet above the ground. IP failed to examine and inspect the scaffold prior to starting work and failed
to adequately supervise the employees while they were on the scaffold. IP failed to give specific,
appropriate instructions to its employees to prevent exposing them to the danger of falling from a
scaffold that was not fully planked. There is no showing that IP trained its employees to recognize
the hazard of working on a scaffold. IP’s safety program, which states that employees “be familiar
with standard scaffold equipment,” did not specifically address hazards involved in working on
scaffolding (Exh. C-2). Accordingly, IP should have known that the scaffolding was not fully
planked.
Therefore, the violation of 29 C. F. R. § 1926.451(b)(1) is affirmed.
Serious Classification
Under § 17(k) of the Occupational Safety and Health Act (Act), a serious violation exists if
there is a substantial probability that death or serious physical harm could result from the violative
condition and the employer knew or should have known, with the exercise of reasonable diligence,
of the presence of the unsafe condition. 29 U.S.C. § 666(k).
IP’s violation of § 1926.451(b)(1) is serious because an employee could have fallen from a
scaffold that was not fully planked. IP’s employees were working at heights of 6 to 22 feet above
the ground. A fall from that height would likely result in serious injury or death.
Alleged Serious Violation of 29 C. F. R. § 1926.451(f)(3)
The citation alleges that IP failed to have a scaffold, used by its employees, inspected by a
competent person. Section 1926.451(f)(3) provides:
(f) Use. (3) Scaffolds and scaffold components shall be inspected for visible defects
by a competent person before each work shift, and after any occurrence which could
affect a scaffold’s structural integrity.

Section 1926.450(b) defines a competent person:

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Competent person means one who is capable of identifying existing and predictable
hazards in the surroundings or working conditions which are unsanitary, hazardous,
or dangerous to employees, and who has authorization to take prompt corrective
measures to eliminate them.

       Although Direct Scaffolding erected the scaffolding and its competent person inspected it

before turning it over to IP on November 26, 2001, IP did not inspect the scaffolding on
November 30 and December 7, 2001, before employees began work on those days. The arrangement
between IP and Direct Scaffolding did not provide for scaffold inspections by Direct Scaffolding’s
competent person during IP’s work on it (Tr. 109).
At the time of the OSHA inspection, no one at IP was qualified as a competent person.2
Martin Ingram admits that no one from IP inspected the scaffolding after November 26, 2001
(Tr. 108, 220).
The violation of 29 C. F. R. § 1926.451(f)(3) is affirmed. Failure to have a competent person
inspect a scaffold daily is a serious violation. Serious injury or death is the likely result if an
employee falls because of defective scaffolding.
Alleged Repeat Violation of 29 C. F. R. § 1926.100(a)
The citation alleges that IP failed to have employees, who were exposed to overhead hazards,
wear hard hats while working on scaffolding passing materials from ground level to the top of the
scaffolding and while roofing work was being performed above them. Section 1926.100(a) provides:
Employees working in areas where there is a possible danger of head injury from
impact, or from falling or flying objects, or from electrical shock and burns, shall be
protected by protective helmets.

       Discrimination inspector McDowell saw IP employees on November 30, 2001, working

without hard hats and exposed to overhead hazards from materials passed up and used on the
scaffolding and from the roofers above them (Exh. C-1, Photo 1, Exh. C-9, Photos 8, 9; Tr. 120).
Also, CO Darrell observed IP employees installing styrofoam shapes on December 7, 2001, without
their hard hats (Tr. 226). Martin Ingram admitted that employees did not always wear their hard hats
(Tr. 112).

2
Since the inspection, all IP employees have taken a competent person course in scaffolding (Tr. 50).

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IP contends that employees cannot wear their hard hats when they are working under the
eaves because the hat will fall off. IP did not present any evidence that it was not possible to use a
chin strap on the hard hat. CO Darrell testified that a chin strap is effective in keeping a hard hat on
when bending over to work (Tr. 152). Also, the employees observed by McDowell were not
working under the eaves.
A violation of 29 C. F. R. § 1926.100(a) is established.

                      Unpreventable Employee Misconduct Defense
    IP asserts the affirmative defense of unpreventable employee misconduct because it had a

safety rule that employees should wear their hard hats.
In order to establish the affirmative defense of employee misconduct, an employer must
show:
(1) that it has established work rules designed to prevent the violation; (2) that it has
adequately communicated the rules to its employees; (3) that it has taken steps to
discover violations; and (4) that it has effectively enforced the rules when violations
have been discovered.

Nooter Construction Co., 16 BNA OSHC 1572, 1578 (No. 91-0237, 1994).
The employer must first show that it has established work rules designed to implement the
requirements of the standard. Wheeling-Pittsburgh Steel Corp., 16 BNA OSHC 1780, 1784 (No. 91-
2524, 1994). IP had a hard hat requirement, and this rule was reiterated at the Monday morning
safety meetings. However, there is nothing specifically addressing hard hats in IP’s written safety
program (Exh. C-2).
The second requirement to prove the affirmative defense is that an employer must show that
it has adequately communicated the rules to its employees. At the Monday morning meeting, IP did
tell employees to wear their hard hats. Employee Matthews stated that IP is “strict about the hard
hats” (Tr. 265). Nevertheless, employees did not always wear their hard hats. It was permissible for
them to take their hats off when working under the eaves. Also, such instruction was ineffective,
as evident by the failure of the 5 employees on site on November 30, 2001, to wear hard hats (Exhs.
C-1, C-9).

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Third, an employer must show that it has taken steps to discover violations. “Effective
implementation of a safety program requires ‘a diligent effort to discover and discourage violations
of safety rules by employees.’” Propellex Corp., 18 BNA OSHC 1677, 1682 (No. 96-0265, 1999).
It is clear that IP employees were not wearing their hard hats all the time and were disobeying the
hard hat rule. IP did not show that it made a diligent effort to discover violations of its hard hat rule.
Finally, the employer must effectively enforce the rules when violations have been
discovered. “To prove adequate enforcement of its safety rule, an employer must present evidence
of having a disciplinary program that was effectively administered when work rules violations
occurred.” GEM Industrial, Inc., 17 BNA OSHC 1861, 1863 (No. 93-1122, 1996). “Evidence of
verbal reprimands alone suggests an ineffective disciplinary system.” Precast Services, Inc., 17
BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d. without published opinion, 106 F.3d 401 (6th
Cir. 1997). In this case, employees were not disciplined for not wearing their hard hats (Tr. 275).
IP did not present any evidence of a formal discipline program consisting of increasingly harsher
discipline measures, such as verbal warnings, written warnings, work suspension, and termination.
Therefore, IP’s employee misconduct defense is rejected because it has not established that
it adequately communicated the hard hat rule, that it took steps to discover the violations, and that
it enforced the rule. The violation of 29 C. F. R. § 1926.100(a) is affirmed.
Repeat Classification
Under the Commission’s long-stated test, a repeat violation under § 17(a) of the Act, 29
U.S.C. § 666(a), occurs if the Secretary shows “a Commission final order against the same employer
for a substantially similar violation.” Potlatch Corporation, 7 BNA OSHC 1061, 1063 (No. 16183,
1979). The Secretary establishes substantial similarity “by showing that the prior and present
violations are for failure to comply with the same standard, at which point the burden shifts to the
employer to rebut that showing.” Monitor Construction Co., 16 BNA OSHC 1589, 1594 (No. 91-
1807, 1994).
The repeat classification is based on a citation issued to “Martin Ingram and its successors”
on February 7, 1997, for serious violation of § 1926.100(a) because employees were not wearing
hard hats at a job that used scaffolding in Jackson, Mississippi (Exh. C-8). The citation was not
contested and the penalty was paid. That citation became a final order. “Martin Ingram and its

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successors” was the predecessor company to Ingram Plastering and Company, Inc., which has been
in business in Jackson, Mississippi, since 1992 (Tr. 89). This prior citation was for violation of the
same standard under similar conditions as the instant case. IP does not dispute the similarity of the
violations. See Capform, Inc., 16 BNA OSHC 2040 (No. 91-1613, 1994), aff’d. 901 F.2d 1112 (5th
Cir. 1990) (employer found to have previously violated same standard is enough to characterize
current violation for failure to keep work area clear of debris as repeated); Stone Container Corp.,
14 BNA OSHC 1757, 1762 (No. 88-310, 1990) (citations involving the same standard and applied
to similar conditions of employee exposure to similar falls are repeat violations); and Hudson Wood
Recycling, Inc., 17 BNA OSHC 1635 (No. 91-1597, 1996) (prior violation for failure to have midrail
was substantially similar to current violation for failure to have guardrail in that both violations
involved same standard and dealt with same hazard of falling).
Thus, the violation of § 1926.100(a) is affirmed as repeat.
Alleged Repeat Violation of 29 C. F. R. § 1926.451(g)(1)(vii)
The citation alleges that IP did not provide personal fall protection for an employee who was
working on a single plank on the 12-foot level, without a guardrail. Section 1926.451(g)(1)(vii)
provides:
(g) Fall Protection. (1) 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.

   (vii) For all scaffolds not otherwise specified in paragraphs (g)(1)(i) through
   (g)(1)(vi) of this section, each employee shall be protected by the use of personal fall
   arrest systems or guardrail systems meeting the requirements of paragraph (g)(4) of
   this section.
   It is clear from the citation and the evidence that this violation is limited to conditions

observed by discrimination inspector McDowell on November 30, 2001. There is no dispute that
on November 30, 2001, an employee standing on a single, 18-inch pic board at the 12-foot level of
scaffolding was not protected by a guardrail or personal fall arrest system (Exh. C-1, Photo 1;
Exh. C-9; Tr. 119-120).
IP argues that it had no knowledge of the unsafe condition of the scaffold because neither
Martin nor Roman Ingram was on the worksite on November 30, 2001, when the employee was on
the scaffold.

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IP’s argument fails because it did not exercise reasonable diligence, which requires
formulation and implementation of adequate work rules and training programs, and adequate
supervision of employees to prevent exposure to hazards. Thus, IP should have known that its
employees were not protected from falling by use of personal fall arrest systems or guardrail systems
on the scaffolding.
The violation of 29 C. F. R. § 1926.451(g)(1)(vii) is affirmed.
Repeat Classification
The repeat classification is based on 2 citations. The first citation was issued to “Ingram
Plastering” on April 29, 1999, for a serious violation of § 1926.451(g)(1) for failing to have a
guardrail on scaffolding or personal fall protection for employees working on scaffolding that was
over 10 feet high on a job site in Canton, Mississippi (Exh. C-3). That citation became a final order
based on an order approving settlement (Exh. C-3).
The second citation was issued to “Martin Ingram, d/b/a Ingram Plastering,” on October 1,
1999, for a repeat violation of § 1926.451(g)(1)(vii) for failure to provide guardrails where
employees were working on approximately 19-inch wide scaffold walkboards and were exposed to
falls of approximately 12, 18, and 24 feet to the ground below on a job site in Puckett, Mississippi
(Exh. C-6). That citation became a final order based on an order approving settlement (Exh. C-6).
These prior citations were for violations of the same standard under similar conditions as the instant
case. IP does not dispute the similarity of the violations.
Thus, the violation of § 1926.451(g)(1)(vii) is affirmed as repeat.
Penalty Assessment for Citation Nos. 1 and 2
Section 17(j) of the Act requires that when assessing penalties, the Commission must give
“due consideration” to four criteria: (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the prior history of violations. 29 U.S.C.
§ 666(j). The Commission has wide discretion in penalty assessment. Kohler Co., 16 BNA OSHC
1769, 1776 (No. 88-237, 1994).
IP is a small corporation that had 9 employees at the time of the inspection; 7 employees were
involved in the BankPlus job. Because of its small size, a reduction in the proposed penalties is
appropriate.

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Generally, the gravity of the violation is the primary consideration in assessing penalties.
Trinity Industries, Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a particular
violation “depends upon such matters as the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood that any injury would result.” J. A.
Jones Construction Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).
As to serious violation of § 1926.451(b)(1), the gravity is low because 3 employees were
exposed on 1 day, November 30, 2001, while working on scaffolding that was not fully planked
when moving material up to the top of scaffolding. The duration of exposure was limited.
For serious violation of § 1926.451(f)(3), the gravity is low because even though a competent
person did not inspect the scaffolding on November 30 and December 7, 2001, defects in the
scaffolding (lack of full planking and guardrails) were limited to November 30, 2001.
Regarding repeat violation of § 1926.100(a), the gravity is moderate because 5 employees
on November 30 and December 7, 2001, were not wearing their hard hats all of the time.
For repeat violation of § 1926.451(g)(1)(vii), the gravity is low because only 1 employee was
exposed to a fall on 1 day, November 30, 2001.
IP did not exhibit good faith. IP was not fully cooperative throughout the investigation. CO
Darrell stated that Martin Ingram interrupted her interviews with the employees (Tr. 204). Martin
Ingram admitted that he did tell 1 employee not to give a written statement to OSHA (Tr. 62). In
addition, IP neglected to prevent the repeat of previous violations. Furthermore, IP did not have a
comprehensive safety program, as demonstrated by its 1 page written program (Exh. C-2). No credit
is given for good faith.
IP has a prior history of OSHA violations. IP was cited once for lack of hard hats and twice
for failure to have personal fall arrest systems or guardrail systems. No credit is given for good
history.
Based on these factors, a penalty of $900.00 is reasonable for Citation 1, Item 1; $900.00 is
reasonable for Citation 1, Item 2; $3,000.00 is reasonable for Citation 2, Item 1; and $6,000.00 is
reasonable for Citation 2, Item 2.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

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The preceding decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based on the preceding decision, it is ORDERED:
1. Citation 1, Item 1, alleging a serious violation of 29 C. F. R. § 1926.451(b)(1), is
affirmed and a penalty of $900.00 is assessed.
2. Citation 1, Item 2, alleging a serious violation of 29 C. F. R. § 1926.451(f)(3), is
affirmed and a penalty of $900.00 is assessed.
3. Citation 2, Item 1, alleging a repeat violation of 29 C. F. R. § 1926.100(a), is affirmed
and a penalty of $3,000.00 is assessed.

   4.      Citation 2, Item 2, alleging a repeat violation of 29 C. F. R. § 1926.451(g)(1)(vii), is

affirmed and a penalty of $6,000.00 is assessed.

                                                     /s/
                                           KEN S. WELSCH
                                           Judge

Date: May 31, 2002

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