Titanium Metals Corp. of America (Commission decision, January 24, 1980)

Read the official release (oshrc.gov)

Plain-English summary

Two painters were working from a two-point suspension scaffold on a forty foot building at the Titanium Metals plant in Henderson, Nevada. An employee phoned in a complaint, and on May 7, 1975 two compliance officers came out. They showed their credentials to the guards at the gate, were admitted, and were told to go to the administration building. On the way they saw the painters lowering the scaffold with one end about four feet higher than the other, and they photographed it. The opening conference followed at the administration building a hundred to two hundred feet away, and then the plant's safety director and industrial relations manager walked the inspection with them. Judge Erwin Stuller affirmed five willful citations and assessed one combined penalty of $10,000. The Commission affirmed in full.

The photographs stay in. Titanium Metals wanted everything seen before the opening conference suppressed, arguing that a valid inspection under section 8(a) requires consent or a warrant plus the employer's awareness of the inspector's presence, which can come only from presenting credentials to the owner, operator, or agent in charge. The Commission treats section 8(a) rights as coextensive with the Fourth Amendment, and no warrant is needed where the nature of the place defeats any expectation of privacy. The officers presented credentials to guards who had authority to admit visitors, went exactly where the guards sent them, and saw the scaffold in plain view along the way. As to anyone its own guards let in, the company had no expectation of privacy on the path between the gate and the front office. A footnote records that the inspection was warrantless, that Barlow's later held section 8(a) unconstitutional to the extent it authorized warrantless inspections without consent, and that the Commission does not apply the exclusionary rule to warrantless inspections conducted before Barlow's.

Denial of walkaround rights during that opening stretch also does not suppress anything. Evidence obtained in violation of section 8(e) is excluded only where the record shows prejudice to the preparation or presentation of the defense. Here the early evidence went only to employee use of the scaffold and access to the hazards, and every bit of it was corroborated by the painters' own testimony and by what the officers saw during the walkaround, with all those witnesses available for cross-examination.

The five conditions. The scaffold had no midrail and no toeboards, and its toprail was cracked and rotted. A hoisting mechanism would not wind or release properly, so the cable slipped and the platform hung askew. The suspension hooks were open hooks hanging from O-rings bolted to protruding I-beams, and one of the three U-bolt wire rope clips was installed backwards with the U against the load bearing part of the cable, which could weaken or break it. The scaffold was not lashed to the building: it hung three feet out and swung four feet farther before swinging back into the wall, a seven foot arc, and the painters had neither lashing loops nor spare rope. And the painters' lifelines were tied to the cracked toprail rather than to the structure, and at sixteen to eighteen feet were long enough that a man would reach the ground before the line caught, the scaffold being only twelve to fifteen feet up.

Three supervisors testified the scaffold was safe. The judge watched the witnesses and credited the two painters instead. The Commission defers to a credibility finding where the judge has fairly considered the whole record and adequately explained himself, and it adopted his findings.

Willfulness. The company argued it never had actual knowledge it was violating the standards, and leaned on the Third Circuit's Irey formulation requiring an obstinate refusal to comply. The Commission has declined to follow Irey. Its test is that, whatever the motive, willfulness is established by a conscious, intentional, deliberate decision, and may be shown by careless disregard of the Act's requirements or indifference to employee safety. The pattern here began with an uncontested February 1975 Nevada citation, issued under a state plan with standards identical to the federal ones and under section 1926.451, the same section cited here, for a foreman working on a scaffold with neither guardrails nor a belt. In the months that followed nobody learned what the scaffold standards actually require. The manager of industrial relations, who had primary responsibility for safety, knew that 451 was the scaffold section but not what it said. Supervisors knew scaffold standards existed and no more.

Then came the complaints: the swaying, the slipping cable, the bad toprail, nowhere secure to tie off. The company greased the hoist and put in a toprail. On May 2 one painter left his station to fetch the union representative because he still thought the scaffold unsafe. Two foremen went up, felt the cable slip, tapped the winch spool with a wrench, climbed down a ladder rather than lower the scaffold, and told the painters it was safe. On May 7 it was still swaying and still slipping. The Commission held that responding with repairs does not negate plain indifference when the employer repeatedly fails to diagnose and correct the conditions the standards actually address, and found the violations willful.

The $10,000 combined penalty was affirmed under section 17(j): a large corporation, high gravity, and no good faith.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(a)(8), (i)(4), (i)(8), (i)(9), (i)(11)
• Outcome: Affirmed. All five willful citations stand, with a combined penalty of $10,000.
• Key point: Conditions in plain view along the route an employer's own guards direct inspectors to take are lawfully observed, and repair attempts that never address what the standards require do not rebut plain indifference.

Full text (OSHRC public release)

Docket No. 14080

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.
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NORANDA ALUMINUM, INC.
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GENERAL MOTORS CORP., GM ASSEMBLY DIV.
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ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.
�

CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.
�

CCI, INC.
�

GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.
�

CHAPMAN CONSTRUCTION CO., INC.
�

GALLO MECHANICAL CONTRACTORS, INC.
�

SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.
�

ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
�

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
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BUNKOFF CONSTRUCTION CO., INC.
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GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.
�

GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.
�

COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.
�

BENTON FOUNDRY, INC.
�

MICHAEL CONSTRUCTION CO., INC.
�

WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.
�

ERSKINE-FRASER CO.
�

MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

STRIPE-A-ZONE, INC.
�

FORTE BROTHERS, INC.
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RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.
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VAMPCO METAL PRODUCTS, INC.
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LEONE INDUSTRIES, INC.
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ASARCO, INC.
�

DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.
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FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.
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BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.
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DONALD HARRIS, INC.
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A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.
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ELECTRICAL CONSTRUCTORS OF AMERICA, INC.
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DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)

ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY

NAVAJO FOREST PRODUCTS INDUSTRIES

METROPAK CONTAINERS CORPORATION

AUSTIN BUILDING COMPANY

BABCOCK AND WILCOX COMPANY

DARRAGH COMPANY

BABCOCK & WILCOX COMPANY

OTIS ELEVATOR COMPANY

R. ZOPPO COMPANY, INC.
�

LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.
�

HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.
�

INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.
�

GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.
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NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.
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CONTINENTAL GRAIN COMPANY

MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY

CAPITAL CITY EXCAVATING CO., INC.
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GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.
�

WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.
�

AUSTIN ROAD CO.
�

MAYHEW STEEL PRODUCTS, INC.
�

LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.
�

NATIONAL ROOFING CORPORATION

OSCO INDUSTRIES, INC.
�

HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.
�

PRESTRESSED SYSTEMS, INC.
�

TEXACO, INC.
�

GEORGIA HIGHWAY EXPRESS, INC.
�

RED LOBSTER INNS OF AMERICA, INC.
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SUNRISE PLASTERING CORP.
�

STONE & WEBSTER ENGINEERING CORPORATION

H.B. ZACHRY COMPANY (INTERNATIONAL)

NATIONAL INDUSTRIAL CONSTRUCTORS, INC.
�

BUSHWICK COMMISSION COMPANY, INC.
�

CIRCLE T DRILLING CO., INC.
�

J.L. FOTI CONSTRUCTION COMPANY, INC.
�

TEXACO, INC.
�

KENNETH P. THOMPSON CO., INC.
�

HENRY C. BECK COMPANY

HEATH & STICH, INC.
�

FARMERS EXPORT COMPANY

FOSTER AND KLEISER

TURNER WELDING & ERECTION CO., INC.
�

TRI-CITY CONSTRUCTION CO.
�

THE DURIRON COMPANY, INC.
�

SAMSON PAPER BAG CO., INC.
�

MEL JARVIS CONSTRUCTION COMPANY, Inc.
�

MIDWEST STEEL ERECTION, INC.
�

GEISLER GANZ CORPORATION

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

NATIONAL MANUFACTURING COMPANY

WALLACE ROOFING COMPANY

REYNOLDS METALS COMPANY, INC.
�

UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.
�

SUFFOLK COUNTY CONTRACTORS, INC.
�

NORANDA ALUMINUM, INC.
�

ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.

GENERAL ELECTRIC COMPANY

SERVICE SPECIALTY, INC.
�

ECCO HIGH FREQUENCY ELECTRIC CORP.
�

HENRY C. BECK COMPANY

REPUBLIC ROOFING CORPORATION

EASLEY ROOFING & SHEET METAL CO., INC.
�

MIDDLETOWN VOLKSWAGEN, INC.
�

RICHARD ROTHBARD, INC.
�

AUTOMATIC SPRINKLER CORPORATION OF AMERICA

PENNSUCO CEMENT AND AGGREGATES, INC.
�

AMFORGE DIVISION, ROCKWELL INTERNATIONAL

MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.
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GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION

GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION

EDGEWATER STEEL CORPORATION

INTERLAKE, INC.
�

PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.
�

UNITED STATES STEEL CORPORATION, DUQUESNE PLANT

KENT NOWLIN CONSTRUCTION CO., INC.
�

WANDER IRON WORKS, INC.
�

SITKIN SMELTING & REFINING, INC.
�

AMERICAN CYANAMID COMPANY

BETHLEHEM STEEL CORPORATION

J.L. FOTI CONSTRUCTION CO., INC.
�

WRIGHT AND LOPEZ, INC.
�

DELAWARE AND HUDSON RAILWAY CO.
�

O.E.C. CORPORATION

BROWN-McKEE, INC.
�

DUQUESNE LIGHT COMPANY; VECELLIO & GROGAN, INC.
�

REXCO INDUSTRIES, INC.
�

MASONRY CONTRACTORS, INC.
�

CARGILL, INC.
�

STEWART-WARNER CORPORATION

LOUISIANA PACIFIC CORP.; WEYERHAEUSER COMPANY; WEYERHAEUSER COMPANY; KONKOLVILLE LUMBER COMPANY; CONTINENTAL KITCHENS, INC.; BOISE CASCADE CORPORATION; NOBLECRAFT INDUSTRIES, INC.; DIAMOND INTERNATIONAL CORPORATION

REBCO STEEL CORPORATION

S & H RIGGERS & ERECTORS, INC.
�

FOREST PARK ROOFING COMPANY

LLOYD C. LOCKREM, INC.
�

ED JACKMAN PONTIAC-OLDS, INC.
�

CEMENT ASBESTOS PRODUCTS CO.
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HARSHAW CHEMICAL COMPANY

ARMSTRONG CORK COMPANY

DIAMOND ROOFING COMPANY, INC.
�

BROWN & ROOT, INC., POWER PLANT DIVISION

F. H. LAWSON COMPANY

WEYERHAEUSER COMPANY; KONKOLVILLE LUMBER COMPANY, INC.; CONTINENTAL KITCHENS, INC.; BOISE CASCADE CORPORATION; NOBLECRAFT INDUSTRIES, INC.; DIAMOND INTERNATIONAL CORPORATION; LOUISIANA-PACIFIC CORPORATION

CONNECTICUT AEROSOLS, INC.
�

BABCOCK & WILCOX COMPANY

AMOCO CHEMICALS CORPORATION

DUN-PAR ENGINEERED FORM COMPANY

OTIS ELEVATOR CO.
�

UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION

ACME FENCE & IRON CO., INC.
�

���
MATTSON CONSTRUCTION CO.

INTERNATIONAL HARVESTER CO.
�

COLONNADE CAFETERIA

GENERAL ELECTRIC COMPANY

H. B. ZACHRY COMPANY

TRI-CITY CONSTRUCTION CO.
�

WESTINGHOUSE BROADCASTING CO., INC., d/b/a WBZ TV GROUP W WESTINGHOUSE BROADCASTING

BETHLEHEM STEEL CORPORATION

TITANIUM METALS CORP. OF AMERICA

OSHRC Docket No. 14080

Occupational Safety and Health Review Commission

January 24, 1980

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[*1]
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Before: CLEARY, Chairman, BARNAKO and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Daniel W. Teehan, Regional Solicitor, USDOL

Kenneth R. Cass, Allegheny Ludlum Industries, Inc., for the employer

E. S. Suvoski, Jr., USWA Local 4856, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Judge Erwin Stuller is before the Commission pursuant to a direction for review issued by former Commissioner Moran under �
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12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651-678 [hereinafter "the Act"].
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The Judge affirmed five citations alleging willful violations of the Act for respondent's failure to comply with the following standards: 29 C.F.R. �
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1926.451(i)(11); 29 C.F.R. �
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1926.451(a)(8); 29 C.F.R. �
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1926.451(i)(4); 29 C.F.R. �
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1926.451(i)(9); 29 C.F.R. �
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1926.451(i)(8).
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He assessed one penalty of $10,000 for the five violations.
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The issues on review are whether the inspection satisfied the requirements of �
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8(a) and �
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8(e) of the Act, 29 U.S.C. �
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657(a) and (e), whether the violations were established, and whether they were willful.

Respondent is the nation's largest producer of titanium metal, which is used primarily in the [*2]
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aerospace and chemical industries.
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The alleged violations involved conditions on a two-point suspension scaffold that was being used by two of respondent's employees who were painting a forty-foot high building at respondent's Henderson, Nevada plant.

The Inspection

On May 7, 1975, two compliance officers arrived at respondent's plant after an employee complaint had been received by telephone.
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Upon arriving at the site, the compliance officers presented their credentials to respondent's guards, were admitted to the premises, and were directed to the administration building.
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On their way to the administration building, they witnessed two painters lowering a scaffold and observed that one end of the scaffold was approximately four feet higher than the other end.
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After photographing the painters on the scaffold, they proceeded to the administration building, located about 100-200 feet away.
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There they conducted an opening conference with Blake, the plant manager; Blackburn, the safety director; and Grover, the manager of industrial relations.
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Accompanied by Blackburn and Grover, the compliance officers conducted an inspection of the scaffold. The scaffold was then resting [*3]
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on the ground.

At the hearing, respondent contended that the photographs (exhibits C1-4 through C1-7, C1-9 through C1-13) taken before the opening conference were inadmissible in evidence.
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Respondent stated that it was not aware until the hearing that the compliance officers had observed and photographed the scaffold before the opening conference.
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It argued that the procedure followed by the compliance officers violates �
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8(a) and �
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8(e) of the Act, 29 U.S.C. �
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657(a) and (e).

The Judge rejected respondent's argument and held that the compliance officers' entry was within the scope of �
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8(a) n1 and �
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8(e). n2 He found that no "subterfuge" was involved in the compliance officers' presence at the scaffold inasmuch as they were following the guards' directions to the administration building.
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He concluded that suppressing the photographs would be tantamount to requiring that the inspectors ignore violations in plain view.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 �
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8(a) reads as follows:

INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING

Sec. 8(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized-

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace, or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

n2 �
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8(e) reads as follows:

INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING

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(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

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[*4]
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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

On review respondent argues that a valid inspection under �
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8(a) of the Act requires either consent or a warrant based on probable cause and the employer's awareness of the compliance officer's presence.
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Respondent asserts that such awareness can result only from presentation of credentials to the owner, operator, or agent in charge.
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Respondent maintains that these requirements were lacking with respect to the compliance officers' initial view of the scaffold and that the evidence obtained pursuant to that phase of the inspection should be suppressed.

Both the Commission and the courts of appeals have previously considered whether �
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8(a) requires the exclusion of evidence obtained prior to the presentation of credentials. In Western Waterproofing Co., Inc., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD P20,805 (No. 1087, 1976), rev'd on other grounds, 560 F.2d 947 (8th Cir. 1977), the Commission stated that any rights granted by �
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8(a) should be read as coextensive with those granted by the fourth amendment. n3

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - -
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                                  [*5]
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n3 It is undisputed that no warrant was obtained prior to the inspection of respondent's plant. We note that the Supreme Court has held that �
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8(a) of the Act is unconstitutional to the extent that it authorizes warrantless inspections without the employer's consent.
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The Commission has held, however, that the exclusionary rule does not apply to warrantless inspections conducted prior to the Supreme Court's Barlow's decision.
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Meadows Industries, Inc., 79 OSAHRC    , 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979).

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

In Environmental Utilities Corp., 77 OSAHRC 40/A2, 5 BNA OSHC 1195, 1977-78 CCH OSHD P21,709 (No. 5324, 1977), we held that a warrant was not required where conditions were observed on a worksite that abutted a public thoroughfare and was open to public view since the very nature of the jobsite precluded any expectation of privacy.
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See also Accu-Namics, Inc., v. OSAHRC & Dunlop, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976). The validity of a warrantless inspection was likewise upheld in Stephenson Enterprises, Inc.
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[*6]
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v. Marshall, 578 F.2d 1021 (5th Cir. 1978), where an employer, whose plant manager had accompanied the compliance officer on an inspection tour, was cited for violations of the sort that could be easily observed during a walk-through tour.
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Moreover, in Hartwell Excavating Company v. Dunlop, 537 F.2d 1071 (9th Cir. 1976), the court of appeals similarly found substantial compliance with �
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8(a) where the compliance officer presented his credentials to an employee and observed violations while attempting to locate the superintendent of the construction site.

Here, the compliance officers presented their credentials and were admitted to respondent's plant by its guards stationed at the main gate.
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The guards possessed authority to admit individuals to respondent's place of business.
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While proceeding to the administration building as specifically directed, the officers observed the scaffold in plain view.
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Clearly, respondent's plant layout and admission procedure indicate that, as to individuals admitted to its plant by its guards, respondent had no expectation of privacy along the route between the gate and the administration building.
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We therefore find that the actions
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[*7]
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of the compliance officers here comply with �
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8(a) of the Act and do not violate respondent's rights under the fourth amendment because respondent's guards allowed the compliance officers to enter; the compliance officers followed the instructions of the guards; and the scaffold was in plain view.

Respondent also argues that the denial of its walkaround rights during the initial portion of the inspection violated �
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8(e) of the Act, 29 U.S.C. �
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657(e).
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The Commission will not exclude evidence obtained during an inspection conducted in violation of �
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8(e) of the Act unless the record reveals that the Secretary's failure to comply with �
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8(e) caused respondent to suffer prejudice in the preparation of or presentation of its defense.
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Laclede Gas Company, 79 OSAHRC    , 7 BNA OSHC 1874, 1979 CCH OSHD P24,007 (No. 76-3241, 1979).

In the present case there has been no prejudice to the preparation or presentation of respondent's defense on the merits.
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See Able Contractors, Inc., 77 OSAHRC 184/A2, 5 BNA OSHC 1975, 1977-78 CCH OSHD P22,250 (No. 12931, 1977); Marshall v. Western Waterproofing Co., supra. The evidence from the initial portion of the inspection relates
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[*8]
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solely to employee use of the scaffold and employee access to the various hazards associated with the allegedly violative conditions.
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This evidence is corroborated both by the painters' testimony and by the compliance officer's observations during the walkaround after respondent's representatives were notified.
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These witnesses were available for cross-examination.
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Respondent's ability to defend on the merits, therefore, has not been impeded.
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We affirm the Judge's denial of respondent's motion to suppress the photographs taken prior to the walkaround.

The Citations

Compliance Officer Shipley testified concerning the allegedly violative conditions observed during his inspection on May 7th.
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He described what was alleged to be a violation of 29 C.F.R. �
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1926.451(i)(11) n4 in that the scaffold had neither midrails nor toeboards, and the toprail was cracked and rotted.
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Robinson and Lucero, the painters who worked on the scaffold, also testified that the toprail was damaged. The absence of toeboards and midrails is evident in complainant's photographic exhibits C1-14 and C1-15, and the damaged toprail is seen in exhibits C1-2 and C1-3.

• • • • • • • • • • • • • • • • • -Footnotes-
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                                  [*9]
                                  �

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n4 29 C.F.R. �
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1926.451(i)(11) reads as follows:

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1926.451 Scaffolding.

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(i) (Swinging scaffolds) two-point suspension.

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(11) Guardrails made of lumber, not less than 2 X 4 inches (or other materials providing equivalent protection), approximately 42 inches high, with a midrail, and toeboards, shall be installed at all open sides and ends of all scaffolds more than 10 feet above the ground or floor.
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Toeboards shall be a minimum of 4 inches in height.
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Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The compliance officer also testified that one of the scaffold's hoisting mechanisms would not wind or release properly.
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As a result, the cable slipped causing the scaffold to hang at uneven levels.
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Noncompliance with the standard at 29 C.F.R. �
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1926.451(a)(8) was alleged. n5 The painters testified that the cable had slipped on occasions prior to May 2nd.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n5 29 C.F.R. �
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1926.451(a)(8) reads as follows:

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1926.451 Scaffolding.

(a) General Requirements

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(8) Any scaffold including accessories such as braces, brackets, trusses, screw legs, ladders, etc., damaged or weakened from any cause shall be immediately repaired or replaced.

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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

A violation for failure to comply with 29 C.F.R. �
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1926.451(i)(4) was also alleged. n6 The scaffold was suspended by two cables, one at either end.
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An open hook was attached at the upper end of each cable by means of a loop formed in the cable. U-bolt wire rope clips secured the loop.
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Each hook hung from an O-ring that was bolted to an I-beam that protruded from the building.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n6 29 C.F.R. �
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1926.451(i)(4) reads in pertinent part as follows:

�
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1926.451 Scaffolding.

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(i) (Swinging scaffolds) two-point suspension.

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(4) The roof irons or hooks shall be of mild steel or other equivalent material, of proper size and design, securely installed and anchored.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The compliance officer believed that the hook could slip out of the ring as the scaffold swayed. According to the compliance officer, one of the three U-bolts on one support cable was installed backwards; the U portion of the bolt was installed against the load [*11]
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carrying part of the wire cable. He opined that this installation could weaken or break the wire cable, causing the scaffold to collapse.

During his initial inspection, the compliance officer also observed that the scaffold was not lashed to the structure, contrary to the requirements of 29 C.F.R. �
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1926.451(i)(9). n7 Robinson stated that he was not instructed to lash the scaffold. He also stated that respondent did not have the usual steel lashing loops attached to the scaffold. Both painters testified they had no extra rope with which to lash the scaffold to the structure.
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As to the amount of sway in the scaffold, Robinson testified that the scaffold was suspended three feet outward from the building and that it swayed an additional four feet away from the building.
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It would then swing back and hit the building.
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The total are of swing was seven feet.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n7 29 C.F.R. �
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1926.451(i)(9) reads as follows:

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1926.451 Scaffolding.

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(i) (Swinging scaffolds) two-point suspension.

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(9) Two-point suspension scaffolds shall be securely lashed to the building or structure to prevent them from swaying. . . .

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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Concerning the alleged violation of 29 C.F.R. �
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1926.451(i)(8), n8 the compliance officer testified that on both occasions when he observed the scaffold, the painters' lifelines were tied to the cracked toprail. The condition is depicted in complainant's photographic exibits C1-1, C1-8, and C1-11, and is contrary to the requirement of the standard that lifelines be attached to the structure from which a scaffold is suspended, not the scaffold itself.
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The compliance officer, who estimated the length of the lifelines to have been between 16-18 feet, testified that fall protection was not provided by lifelines of this length.
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He stated that the painters would have fallen to the ground even if they had been tied off because the scaffold was located only 12-15 feet above the ground.
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The painters testified that they received no instructions as to what the proper length of their lifelines should be or where to tie off.
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They estimated the length of their lifelines to be between 18-20 feet.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n8 29 C.F.R. �
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1926.451(i)(8) reads as follows:

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1926.451 Scaffolding.

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(i) (Swinging scaffolds) two-point suspension

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(8) On suspension scaffolds. . . [e]ach employee shall be protected by an approved safety life belt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold), or to securely rigged lines, which will safely suspend the employee in case of a fall.
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In order to keep the lifeline continuously attached, with a minimum of slack, to a fixed structure, the attachment point of the lifeline shall be appropriately changed as the work progresses.

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[*13]
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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Respondent's three witnesses, all supervisors or former supervisors, testified that the scaffold was safe.
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Mr. Fachini, the foreman who was in charge of the painters, and Coonan, the supervisor, went up on the scaffold on May 2nd to investigate the painters' complaints regarding the swinging of the scaffold. Fachini testified that the scaffold swayed slightly as it was being raised but no more than the normal amount.
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Fachini also stated that there was no slippage of the cable at his end of the scaffold. Coonan, who was at the other end of the scaffold, stated that he experienced a problem with the cable 12-15 feet from the ground.
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He remedied the condition by tapping the spool of the winch with a wrench.
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Fachini also testified that he had the loose railing repaired pursuant to Lucero's complaint and that this was the only complaint he had received regarding the scaffold.

The Judge affirmed each of the five citations based on the compliance officers' testimony, which he found to be corroborated by the photographs, and on the painters' testimony.
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Based on the Judge's observation of demeanor of
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[*14]
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the witnesses, he credited the testimony of the painters Robinson and Lucero over that of respondent's supervisors Fachini, Grover, and Coonan.

The Judge also found the following: one toprail had a deep long crack and rotted spots and was obviously inadequate to safeguard the employees; there was neither a midrail nor toeboards; the winding mechanism repeatedly malfunctioned; there were no provisions for attaching the lifelines to the structure; the hook could slip out of the O-ring, if the scaffold swayed; and the backwards installation of the U-bolt could bend and weaken the support cable. Based on the supervisors' inspection of the scaffold on May 2nd, the Judge further concluded that respondent knew or should have known of each of the violations.

On review respondent reiterates the arguments it raised before the Judge.
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It contends that the evidence does not establish the violations. n9 We note that a number of these arguments are based on the objections related to the Judge's detailed credibility findings.
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The Commission will defer to a Judge's credibility finding where the Judge has fairly considered the entire record and adequately explained his findings.
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C. Kaufman,
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Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978).
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See Evansville Materials, Inc., 77 OSAHRC 143/F1, 3 BNA OSHC 1741, 1975-76 CCH OSHD P20,187 (No. 3444, 1975).
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We find no error in the Judge's findings here and they are hereby adopted.
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Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n9 Respondent's arguments are as follows: the malfunctioning of the hoisting mechanism does not indicate it was damaged; the slant in the scaffold was due to one employee continuing to crank the hoist after the other employee stopped; the scaffold could have been lashed at both ends but it was the employee's decision not to lash the scaffold; the CO's opinion that the hook could slip out of the O-ring was not sufficient evidence to establish that the O-ring was not secure; the scaffold did not sway more than the normal amount.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

WILLFULNESS

The Judge found that respondent's actions were malicious and within the definition of willful under �
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17(a)
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[*16]
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of the Act. n10 In support of his willfulness finding, the Judge relied on respondent's prior knowledge of the scaffold's condition based on the employees' complaints, the managerial inspection, and a prior scaffold violation.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n10 �
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17(a) reads as follows:

Sec. 17(a) Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Respondent argues that willfulness cannot be found because it did not have actual knowledge that it was in violation of the cited standards.
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It further contends that its repairs subsequent to the employee complaints remove its action from the category of willfulness. In support of its contentions, respondent primarily cites to Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974), aff'd en banc, 519 F.2d 1215 (3d Cir. 1975), aff'd
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on other grounds, 430 U.S. 442 (1977), which held that willfulness necessarily involves an element of obstinate refusal by the employer to comply with the Act.

The Commission has declined to follow the test for willfulness enunciated in the Irey decision.
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Rather, the Commission has followed the test that regardless of venal motive, willfulness is established by a conscious, intentional, deliberate decision and may be characterized by a careless disregard of the requirements of the Act or an indifference to employee safety.
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See, e.g., P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979); Ford Motor Co., 77 OSAHRC 167/A2, 5 BNA OSHC 1765, 1977-78 CCH OSHD P22,106 (No. 13682, 1977); Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD P21,613 (No. 9339, 1977), aff'd, 595 F.2d 309 (5th Cir., 1979); Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD P21,550 (Nos. 9483, 9485 & 9522, 1977), aff'd, 593 F.2d 368 (10th Cir. 1979); Intercounty Construction Corp., 73 OSAHRC 59/E9, 1 BNA OSHC 1437, 1973-74 CCH OSHD P17,044 (No. 919, 1973), aff'd, 522 F.2d [*18]
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777 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976). Accord, Western Waterproofing Co. v. OSHRC, 576 F.2d 139 (8th Cir. 1978), cert. denied, 99 S.Ct. 452 (1978); United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975), F.X. Messina Construction Corp. v. OSHRC, 505 F.2d 701 (1st Cir. 1974).

Applying this test, we agree with the Judge that willfulness has been shown on the facts here.
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We find no merit in respondent's argument that it lacked actual knowledge that the scaffold, at the time of its use, violated any of the Act's provisions.
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In Georgia Electric Company, supra, the Commission found a willful violation where an employer, who had extensive opportunity to become aware of the applicable OSHA standards, demonstrated an indifference to employee safety and exhibited a pattern of blatantly ignoring the requirements of the Act.

Respondent's conduct similarly meets the requirements for finding a willful violation.
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Beginning with the citation issued to respondent by the State of Nevada in February, 1975, a pattern of intentional disregard of, or a plain indifference to, the Act is established.
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It is undisputed that the February [*19]
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citation involved a foreman who was working on a scaffold unprotected either by guardrails or by a safety belt.
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The citation was uncontested.
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The Nevada state plan had adopted standards identical to the Federal OSHA standards.
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The February violation involved �
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1926.451, the same section cited in the present case.

In the time between the February citation and the May inspection, respondent had ample opportunity to become familiar with the requirements of the scaffold standards and transmit this knowledge to its employees, but it did not do so.
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Michael Grover, respondent's manager of industrial relations, testified that he was primarily responsible for safety.
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As such, he stated that he had primary responsibility for knowing about state and federal safety regulations.
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Grover testified that he was aware both of the February citation and "that section 451 is the section on scaffolds." He, however, was unaware of the actual requirements of the standards.
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Although supervisor Coonan admitted he was also aware that there were OSHA standards relating to scaffolding, apparently neither he nor Fachini were aware of specific requirements.

In addition, prior to the inspection on May 7th,
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[*20]
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respondent received specific complaints from its employees concerning the cited scaffold, such as: the swaying, the slipping of the cable, the condition of the toprail, and the lack of a secure location where the painters could attach their lifelines. Pursuant to these complaints, respondent's millwright greased the hoisting mechanism and installed the toprail photographed in C1-2 and C1-3.

On May 2nd, Robinson, a painter working on the scaffold, left his work station to find the union representative to inspect the scaffold because he still believed it to be dangerously unsafe.
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Respondent's foremen, Fachini and Coonan, then inspected the scaffold. While raising the scaffold, the foremen experienced a slipping of the cable that they temporarily corrected by tapping the spool of the hoist.
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The foreman did not lower the scaffold. Rather, they used a ladder to descend to the ground.

Respondent further argues that its actions in response to the employees' complaints demonstrate that the violations were not willful. We reject this defense and find that respondent's attitude was one of plain indifference to the employees' safety regardless of its repair efforts.
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See Georgia
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[*21]
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Electric Company, supra. Despite the painters' repeated complaints concerning the swaying and slipping of the scaffold, respondent failed to diagnose and correct the conditions consistent with the requirements of the standards.
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The scaffold swayed and its cable continued to slip on May 7th after Fachini and Coonan ordered the hoisting mechanism greased, inspected the scaffold, and assured the painters that it was safe.

Respondent thus failed to detect and repair a number of obvious violations on the scaffold after several employee complaints and a company inspection during which the foreman experienced a slippage of the cable. The pattern of conduct, from February until the May 7 inspection, by respondent's management from its manager of industrial relations down to its supervisors establishes an intentional disregard of, or a plain indifference to, the scaffolding standards cited here.
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Accordingly, we find that the violations were willful.

We also affirm the Judge's penalty assessment of $10,000 as a combined assessment for the willful violations.
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Based upon the criteria enumerated in �
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17(j) of the Act, the penalty is appropriate.
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Respondent is a large corporation,
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[*22]
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the violation was one of high gravity, and respondent has not exhibited good faith.

Accordingly, the citation for a willful violation of the Act for failure to comply with 29 C.F.R. �
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1926.451 is affirmed and a penalty of $10,000 is hereby assessed.
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