J.L. Foti Construction Company

Plain-English summary

J.L. Foti Construction Company, a masonry contractor, used concrete blocks as part of the support for a scaffold at a wastewater-treatment-plant project. Following a Sixth Circuit decision, the Commission remanded the alleged violation of 29 C.F.R. § 1926.451(a)(2) to the administrative law judge for a factual finding on whether the scaffold's concrete-block support was stable. The appended judge's earlier decision had treated the standard as an absolute prohibition on concrete-block supports, affirmed that item, and assessed $180. That earlier decision also vacated a brick-buggy guarding item, affirmed an improperly aligned midrail item with a $50 penalty, vacated the missing-guardrail portion because employees were dismantling it to add another scaffold tier, and affirmed an OSHA-poster item.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.300(b)(2), 1926.451(a)(2), 1926.451(d)(10), and 1903.2(a)(1)
• Outcome: Concrete-block scaffold-support item remanded to the judge for a factual finding on stability.
• Key point: After the Sixth Circuit's ruling, use of concrete blocks required a factual inquiry into whether the scaffold support was unstable.

Full text (OSHRC public release)

Docket No. 83-1126

SECRETARY OF LABOR,

Complainant,

v.

J. L. FOTI CONSTRUCTION COMPANY,

Respondent.

OSHRC Docket No. 83-1126

DECISION

Before: BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:

This case is here on remand from the decision of the
United States Court of Appeals for the Sixth Circuit in J.L. Foti Construction Co. v.
OSHRC, No. 85-3013 (6th Cir. May 19, 1986)(unpublished decision). In accordance with that
decision, and with respect to the Secretary of Labor's allegation that J.L. Foti
Construction Company violated 29 C.F.R. � 1926.451(a)(2) by using concrete blocks to
support a scaffold, this case is remanded to Administrative Law Judge James D. Burroughs
"for a factual finding on the issue of the stability of the scaffold's [concrete
block] support." J.L. Foti, slip op. at 13.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: October 16, 1986

SECRETARY OF LABOR,

Complainant,

v.

J. L. FOTI CONSTRUCTION COMPANY, INC.,

Respondent.

OSHRC Docket No. 83-1126

APPEARANCES:

Gary A. Boncella, Esquire, Office of the Solicitor, U. S.

Department of Labor, Cleveland, Ohio, on behalf of complainant.

Louis H. Orkin, Esquire, Weiner, Orkin, Abbate & Suit Company,

L.P.A., Beachwood, Ohio, on behalf of respondent.

DECISION AND ORDER

Burroughs, Judge: Respondent, J. L. Foti Construction, Inc.
("Foti"), a masonry contractor, contests a serious and "other"
citations issued to it on October 13, 1983. The citations were issued as a result of an
inspection conducted by OSHA Compliance Officer Eugene E. Heard ("Heard") on
September 29, 1983, and October 4, 1983. The inspection was commenced after Heard received
a telephone call complaining that an unsafe scaffold, approximately 40 feet high, was in
danger of falling. The caller did not identify himself or the employer involved but did
identify the general area of the work location.

The serious citation alleges a violation of three separate items. Item one alleges that
the "West Brick Buggy" failed to comply with 29 C.F.R. � 1926.300(b)(2), which
requires that moving machine parts exposed to contact by employees be guarded. Item two
alleges that the scaffold at the west wall of the "Chem-Feed Building" failed to
comply with 29 C.F.R. � 1926.451(a)(2), which requires that no unstable objects be used
to support a scaffold. Item three alleges that the scaffold at the west wall of the
"Chem-Feed Building" failed to comply with 29 C.F.R. � 1926.451(d)(10), which
requires guardrails on all open sides of scaffolds more than ten feet above adjoining
ground or floor. A total penalty of $540 was proposed for the alleged violations.

The "other" citation alleged a violation of
two separate items. At the commencement of the hearing, counsel for the Secretary moved to
vacate item two, which alleged a violation of 29 C.F.R. � 1926.451(a)(2). The motion was
granted (Tr. 4-7). The remaining "other" item in contest involves the allegation
that Foti failed to post the required OSHA notice in violation of 29 C.F.R. �
1903.2(a)(1).

THE INSPECTION DID NOT VIOLATE FOTI'S CONSTITUTIONAL
RIGHTS TO PRIVACY, THE FOURTH AMENDMENT TO THE

U. S. CONSTITUTION OR ITS CIVIL RIGHTS

Foti argues that the inspection by Heard violated its constitutional rights to an
expectation of privacy, the Fourth Amendment to the United States Constitution and its
civil rights.  It is undisputed that an employer may insist upon a warrant before
entry is made upon its premises by an OSHA compliance officer.  Marshall v.
Barlow's, Inc ., 436 U. S. 307, 98 S. Ct. 1816 (1978).  At the same time, a search
conducted pursuant to a voluntarily obtained consent comes within an exception to the
general warrant requirement of the fourth amendment and is wholly valid. Schneckloth v.
Bustamonte, 412 U. S. 218, 93 S. Ct. 2041 (1973).  In this case, Foti's argument must
be rejected since there is no evidence that consent was not obtained from the general
contractor and no evidence that Foti's foreman at the site objected to the inspection.
  There has also been no showing that Foti, as a subcontractor, had a reasonable
expectancy of privacy at the site.

Heard arrived at the site around 2:30 p.m. on
September 29, 1983. Upon his arrival, he located the trailer of the general contractor,
Walbridge Aldinger, and presented his credentials to Mr. De Fauw, superintendent for the
general contractor. Heard explained the purpose of his visit and then proceeded to conduct
an inspection. During his walk around the site on September 29, 1983, Heard met Robert
Hill, Foti's bricklayer foreman at the site. He presented his credentials to Hill,
explained the purpose of his visit, and offered him an opportunity to accompany him on the
inspection (Tr. 12-15). According to Heard, neither De Fauw nor Hill objected to the
inspection (Tr. 15). Hill testified that he did not remember being invited to participate
in the inspection but did not deny he was given the opportunity (Tr. 130).

Hill acknowledged that Heard met him during the
inspection but had no recollection of Heard saying anything that would constitute an
opening conference (Tr. 129-130). He made no statements that disputed Heard's testimony
that De Fauw and Hill raised no objection to the inspection, and Foti does not argue that
permission to enter and inspect the site was denied by the job superintendent or Hill.
Foti does argue that Heard "at no time testified that he had consent to enter the
site."

Heard did not dispute Foti's assertion that express
permission was not obtained from Hill to conduct an inspection of the Foti work areas at
the site (Tr. 54). This does not mean that he did not have permission to be on the
construction site. Heard testified that upon arrival at the site, he presented his
credentials to De Fauw, explained why he was at the site and received a list of
subcontractors from De Fauw (Tr. 13). He further testified that no employee of the general
contractor or Foti objected to the inspection (Tr. 15). Since no objection was raised
against Heard conducting an inspection, there was at least an implied consent on the part
of the general contractor and Foti. Cooperation by the general contractor is reflected in
Hill's testimony that, when he observed Heard, he was walking with the job superintendent
and the carpenter steward (Tr. 129).

In administrative inspections, the courts have
adopted a standard of consent that is less stringent than that required for criminal
searches. In United States v. Thriftmart, Inc., 429 F.2d 1006, 1010 (9th Cir. 1970), the
court in ruling on the validity of an administrative inspection stated:

In conclusion, we hold that in the context of the exclusionary rule a warrantless
inspection search of business premises is reasonable when entry is gained not by force or
misrepresentation, but is, with knowledge of its purpose, afforded by manifestation of
assent.

A compliance officer does not have to inform the
employer of the right to refuse a warrantless inspection. Daniel International Corp., 81
OSAHRC 57/A2, 9 BNA OSHC 1980, 1981 CCH OSHD � 25,492 (No. 15690, 1981) rev'd on other
grounds, 683 F.2d 361 (11th Cir. 1982). Heard entered the site, identified himself to the
job superintendent, explained the purpose of his visit, asked for a list of subcontractors
and proceeded to conduct the inspection. When he encountered Hill on the site, he again
presented his credentials and explained the purpose of his visit. The failure to object,
at the least, constituted implied consent to the inspection. The consent need not be
express and the failure to object to a known search constitutes consent. There is no
evidence of intimidation, coercion or misrepresentation that would invalidate the consent
in this case. The failure of Hill to object to the inspection resulted in an implied
consent to the inspection; therefore, Barlow's, Inc., does not affect the validity of the
inspection.

Assuming arguendo that there was no implied consent
on the part of Hill, it would make no difference in the result. Foti had no expectation of
privacy. The restrictions upon searches and seizures were designed to protect against
official invasion of privacy and the security of property. Jones v. United States, 362 U.
S. 257, 80 S.Ct. 725 (1960). Since Foti seeks to challenge the legality of the inspection
(construed as an illegal search by Foti), it must establish that it was the victim of an
invasion of privacy. Elbel v. United States, 364 F.2d 127 (10th Cir. 1966). Since a joint
occupant assumes the risk of his co-occupant exposing their common private areas to such a
search, there is no reasonable expectation of privacy under such circumstances. United
States v. Sumlin, 567 F.2d 684 (6th Cir. 1977). The general contractor had authority over
the inspected premises. Foti was a subcontractor working under the general contractor. The
consent of the general contractor was voluntary and constituted valid consent to the
presence of the compliance officer where the work of Foti's employees could be viewed.

A general contractor may consent to the inspection of
a common work site where a subcontractor is working. Havens Steel Co., 78 OSAHRC 53/C11, 6
BNA OSHC 1740, 1978 CCH OSHD � 22,875 (No. 15538, 1978). The job superintendent for the
general contractor exercised control over the premises and his consent and participation
in the inspection with Heard was valid and binding against Foti. The inspection was
constitutionally permissible.

ALLEGED VIOLATION OF 29 C.F.R. � 1926.300(b)(2).

The Secretary alleged that Foti violated 29 C.F.R. � 1926.300(b)(2) [[1/]]
by failing to adequately guard a belt and pulley and chain and sprocket on a West Brick
Buggy used to carry and lift brick in the Chem-Feed building. The buggy has been used by
Foti since its inception in 1963 and is in wide use by masonry contractors in the
Cleveland area. The chain and sprocket was guarded on both sides except for a small area
at the top. The belt and pulley was unguarded but located in an area of the motor assembly
that provided some protection.

The standard requires guarding where the chain and sprocket and belt and pulley "are
exposed to contact by employees or otherwise create a hazard." Foti submits that the
Secretary has failed to meet the burden of proof imposed by the standard. It argues that
employees were not exposed to the partially guarded moving parts of the buggy and that no
hazard was created. The Secretary contends that the proximity of the hands to the moving
parts and the fact that the buggy can be operated with one hand establish exposure to a
hazard.

The left handle of the buggy is 14 inches from the
exposed upper chain and sprocket when the handle bar is in a neutral position. There is a
distance of 12 inches from the left handle to the pulley when the handle bar is in neutral
position. The right handle would be a greater distance from the moving parts. The
hydraulic control level is 11 inches from the chain and sprocket and 10 inches from the
belt and pulley. The Secretary argues that the closeness of the left hand to the moving
parts establishes a hazard, citing F. H. Lawson Co., 80 OSAHRC 19/A14, 8 BNA OSHC 1063,
1980 CCH OSHD � 24,277 (No. 12883, 1980), appeal dismissed, February 9, 1981 (6th Cir.,
No. 80-3277).

The Secretary makes much of the fact that the buggy
may be operated with one hand. In his view, this would leave one hand in an exposed
position. While the bar can be raised or lowered with one hand, it would have to be moved
with the left handle if the buggy is to be moved. The throttle is on the left handle. If
the left hand is used to raise or lower the bar, the right hand would be located too far
away to be exposed to the moving parts. The operator would have to deliberately place his
right hand in the moving parts in order to have his hand injured. The chain and sprocket
only turn when the buggy is moving. Release of the handle automatically stops the turn of
the chain and sprocket. The left hand would be on the handle at anytime the buggy is
moving. As a practical matter, it is doubtful the buggy would ever be operated with one
hand since it is steered by the handles. It would be awkward operating and trying to steer
with the left hand while a pallet of brick, approximately 3,500 pounds, is being moved by
the buggy.

The belt and pulley is operated when necessary to
maintain hydraulic pressure for the lift mechanism of the buggy. The location of the belt
and pulley within the motor assembly provides sufficient protection to the operator. In
order to reach the belt and pulley, there would have to be some deliberate attempt to do
so by the operator. The location prevents any reasonable accidental contact.

While not determinative of the issue, the past
operating record of the buggy shows that injuries have not been a problem. Hill testified
that he had approximately 20 years' experience with the buggy (Tr. 132). During this
period of time, he has known of no injuries resulting from the belt drive or sprocket and
chain (Tr. 134). John A. Fees, safety and education director for the Construction
Employer's Association, testified that he had been familiar with the buggy for
approximately 30 years and was unaware of anyone being injured while operating them (Tr.
157). J. L. Foti testified that he had used the same make of buggy since 1960 and was
aware of their history (Tr. 173). During the time his company has used the buggies, it has
had no injuries from their use. Foti was unaware of any injuries resulting from their use
by other contractors (Tr. 173- 174). The alleged violation is vacated.

ALLEGED VIOLATION OF 29 C.F.R. � 1926.451(a)(2)

The Secretary submits that Foti violated 29 C.F.R. � 1926.451(a)(2) [[2/]]
by using concrete blocks to anchor one end of the scaffold at the Chem-Feed building. The
southwestern leg of the scaffold located at the west wall of the building was supported by
a 2-x-10 inch board which rested on concrete blocks along the brick wall. The end of the
board extended beyond the legs of the scaffold and rested on an I-beam. The I- beam. The
I-beam rested on an interlocked stack of concrete block approximately six feet in height.
The I-beam ran at an angle to the concrete block and 2-x-10 board. The leg of the scaffold
farthest from the brick wall rested on the I-beam. This method of support was pursued by
employees of Foti because the end of the scaffold was within inches of an open excavation
and, in the event of a rain, there was fear the excavation wall would collapse.

Foti argues that there was nothing unstable about the
manner in which the scaffold was erected. It points out that Heard had no idea of the
load-bearing capacity of the concrete blocks and that he did not in any way test the
scaffold for stability. Heard testified that in his opinion the scaffold was unstable.
Foti disputes Heard's opinion and refers to witnesses on its behalf that concluded the
scaffold resting on the concrete blocks was stable. The standard prohibits the use of
concrete blocks; consequently, it is not necessary to weigh the differences of opinion
among the witnesses. In Constructora Maza, Inc., 77 OSAHRC 213/B9, 6 BNA OSHC 1208,
1977-78 CCH OSHD � 22,421 (No. 12434, 1977), the Commission rejected the argument that a
scaffold supported on concrete blocks was safe. The Commission noted a difference between
the gravity of a violation and the presence of the violative conditions. The Commission
concluded that 29 C.F.R. � 1926.451(a)(2) was mandatory and that concrete blocks are
specifically prohibited from being used to support scaffolds or planks. As in Constructora
Maza, Inc., there is no dispute over the fact that Foti's scaffold was supported by
concrete block. The violation is affirmed.

Foti argues that the "use of concrete block to
support a scaffold does not in and of itself establish a per se violation unless the block
is used in an unstable manner," relying on the rationale of Judge Cecil L. Cutler in
Foti Construction Co., Inc., 1977-78 CCH OSHD � 22,346 (Nos. 76-4429, 76- 5049), reviewed
by Commission on other issues, 86 OSAHRC 36/C10, 8 BNA OSHC 1281, 1980 CCH OSHD � 24,421
(1980). One of the issues in that case involved an alleged violation of 29 C.F.R. �
1926.451(a)(2) for using concrete blocks under planks upon which a scaffold was supported.
The facts disclosed that the planking rested on angle iron inserted three inches in the
wall. The angle iron was supported by concrete blocks. Judge Cutler determined that
"[t]he purpose of the concrete blocks was not for support but to take some of the
spring out of the angle iron." The specific finding by Judge Cutler that the concrete
blocks were not intended as support distinguishes that case from the present facts.

ALLEGED VIOLATION OF 29 C.F.R. � 1926.451(d)(10)

The Secretary alleged that Foti violated 29 C.F.R. � 1926.451(d)(10) [[3/]]
by failing to install guardrails on the southern end of the scaffold located on the west
side of the Chem-Feed building and for improperly locating the midrails where guardrails
were installed. There is no dispute over the fact that the guardrail at the southern end
of the scaffold was missing. The missing rail is clearly reflected in the photograph
introduced as exhibit 6. Foti claims that it was in the process of removing the guardrails
and had, just prior to the inspection, removed the guardrail at the south end.

Hill, in looking at a photograph of the scaffold,
acknowledged that three of Foti's employees were on the scaffold but testified that the
men were getting ready to leave the area because they had finished building the wall as
high as they could from that scaffold (Tr. 138-139). According to Hill, the end guardrail
had been removed in the dismantling process so that another tier of scaffold could be
erected (Tr. 140-141, 150). While Heard cited Foti for not having a guardrail on the end
of the scaffold, he testified that he did not know if the guardrails were being removed so
that another tier of scaffold could be erected (Tr. 100). There is no evidence to dispute
Hill's claim that the guardrails were being dismantled.

The scaffold was erected to be used in building the
brick wall. At the time of the inspection, there was no evidence of any brick on the south
end of the scaffold (none is reflected in exhibit 6). Heard testified that he observed
pallets of brick being loaded on the north end of the scaffold, but the location of the
brick was a good distance from the south end of the scaffold.[[4/]] One of the two
employees in the photograph introduced as exhibit 6 appears to have a piece of 2x4 in his
hand, which would be consistent with the testimony of Hill that they were dismantling the
guardrail at that end of the scaffold in order to erect another tier of scaffold. It is
clear from the photograph that they are not laying brick.

The evidence supports Foti's argument that the
employees were in the process of dismantling the guardrails at the time of the inspection.
It was necessary to remove the guardrails prior to erecting another tier of scaffold.
Where it is necessary to remove guardrails to perform specific work, the Commission has
held that the duty to comply with the guardrail requirement is suspended. cf. Setterlin
& Sons Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD � 20,682 (No. 7377,
1976); Dic-Underhill, A Joint Venture, 75 OSAHRC 35/F10, 2 BNA OSHC 1651, 1974- 75 CCH
OSHD � 19,328 (No. 2232, 1975). The alleged violation as to the absence of guardrails is
vacated.

The Secretary further alleged that the midrail was
improperly installed on the scaffold. The standard, 29 C.F.R. � 1926.451(d)(10), requires
guardrails to be approximately 42 inches high and that a midrail of 1-x-6-inch lumber (or
other material providing equivalent protection) be installed. A midrail was installed, but
it was not properly aligned. Exhibit 6 reflects that the top rail and midrail meet at the
third support bracket from the right. Foti argues that Heard at no time measured the
distance between the midrails and the floor of the scaffold and that his testimony that
"the midrails were not placed 'midway' between the top rail and the floor of the
scaffold was based not upon exact measurement but rather upon mere speculation from
ground-based observation."

The photograph of the scaffold, exhibit 6, clearly
reflects that it was unnecessary to measure the midrail to conclude that it was not placed
midway between the top rail and the floor. At the third post, the midrail is within one
board width of the top rail. Since 2-x-4-inch boards were used for guardrails and
midrails, it is clear that the top of the midrail at that point was only one 4- inch board
width below the guardrail. Hill testified that he was aware that the guardrails were to be
placed at a height of 42 inches and the midrail at 21 inches but added that "we don't
always hit through an ant's eyelash for 22 and 21" (Tr. 142). A midrail located one
4-inch board from the guardrail is positioned too far from the midpoint to conclude there
was compliance with the midrail requirement. A violation for improperly located midrails
has been established.

ALLEGED VIOLATION OF 29 C.F.R. � 1903.2(a)(1)

The Secretary alleges that Foti violated 29 C.F.R. � 1903.2(a)(1) [[5/]] by
failing to post a required OSHA notice informing employees of the protections and
obligations provided by the Act. The standard requires that the notice be posted at each
establishment. J. L. Foti, president of J. L. Foti Construction Company, Inc., testified
that he had a stack of the required OSHA notices at his office and that it was company
policy that all trailers sent to a jobsite have a number of things posted, including the
required notice (Tr. 183). Foti argues that Heard made only a cursory inspection to
determine whether the notice was posted and that his inspection was insufficient to
establish the absence of the notice.

During the course of his inspection, Heard stuck his head inside Foti's trailer at the
site on September 29, 1983, and October 4, 1983, and did not see an OSHA notice. He did
not enter the trailer since no one was present in the trailer. He conceded that he did not
inform Hill that there was no notice inside the trailer (Tr. 57-59). Foti argues that it
was physically impossible for Heard to ascertain that the notice posted. It is argued that
Heard had a view of only three walls of the interior of the trailer and it is suggested,
but not established by facts of record, that the notice could have been posted on the wall
which contained the door opening.

There is no evidence to conclude that Heard did not
have an adequate view of the interior of the trailer. The suggestion that he may not have
seen the wall which contained the door opening is speculation and not established fact.
More damaging to Foti's case is the fact that it offered no evidence to establish that the
notice was posted. Hill never stated that the notice was posted. He testified (Tr. 147):

Q. Does Foti have them [OSHA notices] around at
various places?

A. He has had them and I don't know that we didn't
have one. It isn't something I run in to look to see if I have it.

It is obvious that the notice did not carry a high
priority in Hill's job details. His testimony in no way disputes Heard's statement that
the notice was not posted. The violation had been established by the preponderance of the
evidence.

NATURE OF VIOLATIONS

The violations of 29 C.F.R. � 1926.451(a)(2) and 29 C.F.R. �
1926.451(d)(10) were classified as serious within the meaning of section 17(k) of the
Act.[[6/]] This section requires the following two findings be made prior to determining
that a violation constitutes a serious violation: (1) substantial probability that death
or serious physical harm could result from the violation, and (2) that the employer knew
or with the exercise of reasonable diligence could have known of the presence of the
violation. The evidence conclusively shows that Foti knew of the conditions.

The working platform of the scaffold was
approximately 14 feet in height, except at the southern end. There was a 6-foot excavation
at the southern end and employees on that end of the scaffold were exposed to a fall of
approximately 20 feet. A fall from these heights would certainly be expected to result in
death or serious physical harm. The violations were serious.

DETERMINATION OF PENALTIES

The last issue involves the determination of an appropriate penalty for the
violations. While the Secretary can propose a penalty, it is the Review Commission in all
contested cases that has the authority to assess civil penalties for violations of the
Act. The determination of an appropriate penalty is within the discretion of the Review
Commission. Long Manufacturing Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977); Western
Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978). In assessing penalties for
violations of the Act, section 17(j) (7) of the Act requires the Commission to consider
the size of the business of the employer, the gravity of the violation, the employer's
good faith, and the history of previous violations.

The scaffold was supported by concrete blocks. At the
time of the inspection, there were three employees on the scaffold. In the event the
scaffold had collapsed, the three employees would have fallen at least 14 feet. There was
a good possibility that the two employees on the end would have fallen into the excavated
area, a distance of approximately 20 feet. There is no doubt that Foti, in good faith,
believed the scaffold was stable. A penalty of $180 is assessed for the violation of 29
C.F.R. � 1926.451(a)(2).

The midrails on the scaffold were improperly
constructed, leaving an area large enough for employees to fall through in the event they
fell along the edge of the scaffold. Three employees were exposed to the hazardous
condition. The amount of time the employees were on the scaffold is unknown. A penalty of
$50 is assessed for the improperly aligned midrails.

FINDINGS OF FACT

1. J. L. Foti Construction Company, Inc. ("Foti"), is a masonry
   contractor that generally employs 25 or fewer persons (Tr. 178). It has been in business
   since 1963 (Tr. 169).

2. Foti was a subcontractor on the construction of a waste water treatment
   plant located in Willoughby, Ohio. It had the contract for the masonry work (Tr. 129,
   170).

3. On September 29, 1983, Safety Specialist Eugene E. Heard received a
   telephone call around 1:15 p.m. The caller advised him that unsafe scaffolding was being
   used at a construction site across from the Lost Nation Airport, Willoughby, Ohio.
   According to the caller, there was an imminent danger of someone falling 40 feet (Tr.
   9-10, 11, 53). The caller did not indicate which employers were at the site (Tr. 11,
   51-52).

4. Immediately after the call, Heard went to the Lost Nation Airport and
   looked around to find out what construction was being performed. He arrived at the airport
   around 2:30 p.m. (Tr. 12, 53). The work site consisted of a water treatment plant with
   various buildings and excavations (Tr. 12, 128-129).

5. Upon arriving at the site, Heard went to the general contractor's field
   office, identified himself to the general superintendent and indicated the purpose of his
   visit was to investigate the complaint concerning unsafe scaffolding (Tr. 13, 53). He
   received a list of contractors at the job from the job superintendent (Tr. 13).

6. Heard did not hold an opening conference with any employee of Foti at the
   time of his discussion with the job superintendent. As he proceeded with his inspection of
   the site on September 29, 1983, he met Robert Hill, Foti's foreman. He presented his
   credentials to Hill (Tr. 14, 54, 128), and offered Hill an opportunity to accompany him on
   the inspection[[8/]] (Tr. 15).

7. Heard had permission from the general contractor to conduct an inspection
   but did not have an express consent from any employee of Foti or any of the subcontractors
   (Tr. 54-55).

8. No one from the general contractor of Foti objected to the inspection (Tr.
   15).

9. Heard did not complete his inspection on September 29, 1983, and returned
   on October 4, 1983. He did not have sufficient time on September 29, 1983, to cover the
   complete site or talk to all the subcontractors (Tr. 15, 58, 59).

10. When Heard returned on October 4, 1983, he reported to the job
    superintendent for the general contractor (Tr. 60, 111, 113).

11. A closing conference was held by Heard with J.L. Foti, president of Foti
    Construction, by telephone on October 12, 1983 (Tr. 41-42, 97-98).

12. On September 29, 1983, and October 4, 1983, Heard stuck his head inside
    the Foti trailer at the site and did not see an OSHA notice informing employees of the
    protections and obligations provided for in the Act. He did not enter the trailer since no
    one was inside (Tr. 22, 40-41, 57- 59). Heard did not inform Hill that the OSHA poster was
    issuing (Tr. 57- 58).

13. Foti had a stack of OSHA notices at its office. Company policy requires
    that the notices be placed in any trailers sent to a work site (Tr. 182-183).

14. A scaffold was located on the west side of the Chem-Feed building (Ex. 5,
    6; Tr. 20, 30). It was used by Foti's bricklayers in building the brick wall at the west
    side of the building (Tr. 32, 38). Three employees were on the scaffold (Ex. 6; Tr.
    99-100, 138).

15. No guardrails were installed on the south end of the scaffold located on
    the west side of the Chem-Feed building. Guardrails and midrails along the side of the
    scaffold were composed of 2-inch by 4-inch boards. The guardrail and midrail were within
    one 2-x-4-inch board of each other at the third post from the south end of the scaffold
    (Ex. 6; Tr. 20, 40, 109-110).

16. Employees of Foti had been working off the scaffold platform. Three
    employees were on the scaffold at the time of the inspection (Ex. 6; Tr. 99-100).

17. Foti's policy is to have guardrails erected (Tr. 141-142). Foti's job
    foreman, Robert Hill, was aware that guardrails were to be erected at a height of 42
    inches and midrails were to be at 21 inches (Tr. 141-142).

18. The ground had been excavated for a depth of approximately six feet
    within inches of the southern end of the scaffold (Ex. 5, 6; Tr. 143, 145, 180).

19. Since the south end of the scaffold was within inches of the wall of the
    excavation, employees of Foti were concerned of an erosion or collapse of the wall in the
    event of a rain (Tr. 180).

20. In order to protect the southern end of the scaffold against a collapse,
    a stack of hollow concrete blocks, approximately six feet high, was placed in the
    excavation in an effort to provide support for the scaffold (Ex. 5, 6; Tr. 31, 94, 143,
    144-145, 180-181). The blocks were 8 inches by 16 inches (Tr. 142) and were resting on the
    concrete footing in the excavation (Tr. 142-143, 152). The blocks were not cemented but
    were stacked in an interlocking fashion (Ex. 5; Tr. 31-32, 98, 153).

21. An I-beam was placed under the southern leg of the scaffold away from the
    wall and run diagonally so that the other end rested on the stack of concrete blocks (Ex.
    5; Tr. 31).

22. The last two legs of the southern end of the scaffold along the wall
    rested on a 2-x-10-inch board which had been placed on concrete blocks under the legs. The
    end of the board rested on the I-beam on the 6-foot stack of concrete blocks (Ex. 5; Tr.
    85, 153).

23. The board on the concrete blocks and the I-beam were used in an effort to
    prevent the legs of the scaffold falling in the event the wall of the excavation collapsed
    (Tr. 144-145).

24. The working surface of the scaffold was approximately 14 feet above
    ground level except at the south end. As a result of the 6-foot excavation, the south end
    of the scaffold was approximately 20 feet above ground level (Ex. 5, 6; Tr. 32-33, 38,
    39).

25. Foti owned and used a specially manufactured buggy to transport brick at
    the construction site and elevate them to the scaffold (Ex. 1; Tr. 22, 61, 132). The chain
    and sprocket on the buggy was guarded on both sides except for a small area at the top.
    The belt and pulley was unguarded except by its location (Ex. 2-4; Tr. 25).

26. The belt and pulley and chain and sprocket were the same as when the
    buggies were purchased. No guarding of any kind was removed by Foti (Tr. 175-176).

27. The buggy has two handles connected by a bar so that when you lift or
    push down on one handle the other follows in the same manner. The left handle, as the
    operator faces the buggy, is the throttle. The throttle is similar to that on a
    motorcycle. The right handle is a dead handle. The buggy moves forward or backwards at
    walking speed by raising and lowering the handles (Ex. 1-4; Tr. 26, 29, 68, 134, 148-149).

28. In order to operate the buggy, the operator must raise or lower the
    handle bar. If the operator lets go of both handles, the buggy will automatically stop
    (Tr. 21).

29. The chain and sprocket turn only when the buggy is moving. It does not
    turn when the handle bar is in the neutral position (Tr. 29, 71). The belt and pulley
    operate when necessary to maintain hydraulic pressure for the lift mechanism (Tr. 29).

30. The buggy can be operated by one hand (Tr. 71-72).

31. A lever is located slightly below and toward the center of the handle bar
    (Ex. 3; Tr. 26, 28). The lever controls the hydraulic valves which in turn control the
    raising and lowering of the load upon the forks (Tr. 26).

32. Heard measured a distance of 14 inches from the lift handle bar to the
    chain and sprocket when the handle bar was in a neutral position, i.e., the handle bar was
    neither raised or lowered (Tr. 27). When the handle is in a raised position, there is a
    distance of 18 inches from the edge of the closest handle to the open sprocket and chain
    (Ex. A; Tr. 70).

33. Heard measured a distance of 12 inches from the left handle bar to the
    belt and pulley when the handle bar was in a neutral position (Tr. 27).

34. Heard measured a distance of 11 inches from the lever to the sprocket and
    chain drive. He measured a distance of 10 inches from the lever to the belt and pulley
    (Tr. 27).

35. The buggy is used primarily on concrete floors inside the interior of a
    building (Tr. 133-134, 172).

36. Foti has used the buggies since its inception in 1963. During this time,
    no injuries have resulted from the use of the buggies (Tr. 173- 174).

CONCLUSIONS OF LAW

1. Foti, at all times material hereto, was engaged in a business affecting
   commerce within the meaning of section 3(5) of the Act.

2. Foti, at all times material hereto, was subject to the requirements of the
   Act and the standards promulgated thereunder. The Commission has jurisdiction of the
   parties and of the subject matter herein.

3. Foti was not in violation of 29 C.F.R. � 1926.300(b)(2) since the moving
   parts of the West brick buggy were not exposed to contact by the operator and did not
   otherwise create a hazard.

4. Foti was in violation of 29 C.F.R. � 1926.451(3)(2) since concrete blocks
   were used to support the scaffold at the west wall of the Chem-Feed building; a penalty of
   $180 is assessed for the violation.

5. Foti was in violation of 29 C.F.R. � 1926.451(d)(10) for having
   improperly aligned midrails on the scaffold at the west wall of the Chem-Feed building. It
   was not in violation of the standard for having a missing guardrail since the rail had
   been removed as part of the dismantling process to erect another tier of scaffold. A
   penalty of $50 is assessed for the midrail violation.

6. Foti was in violation of 29 C.F.R. � 1903.2(a)(1) for failure to have the
   OSHA notice posted in its field office trailer at the construction site.

ORDER

Based upon the foregoing findings of fact and conclusions of law it is

ORDERED: 1. That item one of the serious citation and the penalty proposed
for the alleged violation issued to Foti on October 13, 1983, are vacated;

2. That item two of the serious citation issued to Foti on October 13, 1983,
   is affirmed and a penalty of $180 is assessed for the violation;

3. That item three of the serious citation Issued to Foti on October 13,
   1983, is vacated as to the guardrails and affirmed for improperly spaced midrails; a
   penalty of $50 is assessed for the midrail violation;

4. That item one of the "other" citation issued to Foti on October
   13, 1983, is affirmed; and

5. That item two of the "other" citation issued to Foti on October
   13, 1983, is vacated.

Dated this 4th day of October, 1984.

JAMES D. BURROUGHS

Judge

FOOTNOTES:

[[1/]] Section 1926.300(b)(2) of 29 C.F.R. provides:

Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or other
reciprocating, rotating or moving parts of equipment shall be guarded if such parts are
exposed to contact by employees or otherwise create a hazard. Guarding shall meet the
requirements as set forth in American National Standards Institute, B15.1-1953 (R1958),
Safety Code for Mechanical Power-Transmission Apparatus.

[[2/]] Section 1926.451(a)(2) C.F.R. provides:

The footing or anchorage for scaffolds shall be sound, rigid, and capable of carrying the
maximum intended load without settling or displacement. Unstable objects such as barrels,
boxes, loose brick, or concrete blocks, shall be not used to support scaffolds or planks.

[[3/]] Section 1926.451(d)(10) of 29 C.F.R. provides:

Guardrails made of lumber, not less than 2x4 inches (or other material providing
equivalent protection), and approximately 42 inches high, with a midrail of 1x6 inch
lumber (or other material providing equivalent protection), and toeboards, shall be
installed at all open sides and ends on all scaffolds more than 10 feet above the ground
or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed
in accordance with paragraph (a)(6) of this section.

[[4/]] The photograph introduced as exhibit 6 shows
an employee wearing a green shirt that is two scaffold lengths from the end. Heard
testified that the brick on the north end of the scaffold were 20 feet from the employee
wearing the green shirt (Tr. 104).

[[5/]] Section 29 C.F.R. � 1903.2(a)(1) provides:

Each employer shall post and keep posted a notice or notices to be furnished by the
Occupational Safety and Health Administration, U. S. Department of Labor, informing
employees of the protections and obligations provided for in the Act, and that for
assistance and information, including copies of the Act and of specific safety and health
standards, employees should contact the employer or the nearest office of the Department
of Labor. Such notice or notices shall be posted by the employer in each establishment in
a conspicuous place or places where notices to employees are customarily posted. Each
employer shall take steps to insure that such notices are not altered, defaced, or covered
by other material.

[[6/]] Section 17(k) of the Act states:

For purposes of this section, a serious violation shall be deemed to exist in a place of
employment if there is a substantial probability that death or serious physical harm could
result from a condition which exists, or from one or more practices, means, methods,
operations, or processes which have been adopted or are in use, in such place of
employment unless the employer did not, and could not with the exercise of reasonable
diligence, know of the presence of the violation.

[[7/]] Section 17(j) of the Act provides:

The Commission shall have authority to assess all civil penalties provided in this
section, giving 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.

[[8/]] Hill testified that he did not remember being
invited to walk around the site, but he did not deny that he might have been given the
opportunity (Tr. 130).