Merchant's Masonry, Inc.

Plain-English summary

Merchant's Masonry employees worked on an unguarded 18-foot scaffold, and the company also used a forklift without a seatbelt or working horn and left it running with raised forks. The willful scaffold classification was not disputed on review, but the Commission raised its penalty from $500 to $7,500 because four employees were exposed, no fall precautions were used, the superintendent knowingly proceeded without guardrails, and the company had three earlier violations of the same rule. The Commission also reclassified the inoperative-horn item as serious because an employee struck by the forklift, its forks, or a pallet of bricks could suffer serious harm even though an accident was unlikely. It set forklift penalties of $250 for the horn, $250 for the missing seatbelt, and $400 for leaving the machine running with raised forks. The combined penalties increased to $8,400.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(d)(10), 1926.602(a)(2)(i), 1926.602(a)(9)(i), and 1926.602(c)(1)(vi).
• Outcome: Modified. The willful scaffold item and three forklift items remained affirmed, the horn item was reclassified as serious, and total penalties increased to $8,400.
• Key point: Serious classification asks whether serious harm would probably result if an accident occurred, while the separate penalty analysis considers how likely the accident was and what precautions existed.

Full text (OSHRC public release)

                                            UNITED   STATES Of AMERICA
                OCCUPAT IONAL SAFETY AND HEALTH REVIEW COMMISSION
                                            One Lafayette Centre
                                      1120 20th Street, N.W. - 9th Floor
                                         Washington, DC 20036-3419

PHONE .
COM (202) 6064100 zi (202) 6oC5050
FTs(202)6064100 FE (202) 6064050

                                                                 .
                                                                 .
                                                                 .
    SECRETARY              OF LABOR,                             .
                                                                 ..

                                Complainant,                     ..
                                                                 .
                                                                 .
                                                                  ..          OSHRC Docket No. 92-424
                      v.
                                                                 ..

    MERCHANT’S MASONRY, INC.,                                    ..
                                                                  ..
                                Respondent.                        ..
                                                                    ..
                                                                 .

                                                                 1




                                                     DECISION

    Before:      WEISBERG,        Chairman, FOULKE and MONTOYA, Commissioners.
    BY THE COMMISSION:
                Merchant’s    Masonry,     Inc. (“Merchant’s”)            was performing    masonry    work at a
    construction      site when the area director of the local Occupational                   Safety and Health
    Administration         (“OSHA”)    office in Baton Rouge, Louisiana, drove by the worksite and
    noticed employees working on the top level of an l&foot-high                     scaffold with no guardrails.
    The area director proceeded to his office, where he mentioned this situation to a supervisor,
    who dispatched          a compliance   officer to investigate.           As a result of an inspection        of the
    worksite, OSHA issued a citation alleging that Merchant’s had violated a number of OSHA
    safety standards.        After a hearing, Administrative             Law Judge Stanley M. Schwartz issued a
    decision finding that Merchant’s had violated the standards, assessing a total penalty of $700.
    The issues directed for review are whether the judge erred in finding that one of the items
    was not serious and whether the penalties he assessed for four of those violations were
     appropriate.

2

                             I. THE SCAFFOLD CITATION
    Because     the 18-foot-high scaffold on which four of Merchant’s          employees were

working was unguarded, the Secretary of Labor issued a citation alleging that Merchant’s
had committed a willful violation of 29 C.F.R. 5 1926.451(d)(10).1 1The judge affirmed the
violation as willful and assessed a penalty of $500.2
Section 17(j) of the Act provides that the Commission shall assess an appropriate
penalty for each violation, giving due consideration to the size of the employer, the gravity
of the violation, the good faith of the employer, and the employer’s history of previous
violations. 29 U.S.C. 8 666(j). These factors are not accorded equal weight; normally, the
most significant consideration in assessing a penalty is the gravity of the violation. L4. Jones-
Conm. Co., 15 BNA OSHC 2201, 2214, 1991-93 CCH OSHD Y29,964, p. 41,033 (No. 870
2059, 1993); Natkin & Co., 1 BNA OSHC 1204, 1205, 1971-73 CCH OSHD ll 15,679,
p. 20,968 (No. 401, 1973). Gravity includes a number of factors, including the number of
employees exposed to the hazard, the duration of their exposure, the precautions taken to
prevent injury, and the degree of probability that an injury would occur. &s-Turn Builders,
Inc., 10 BNA OSHC 1128,1132,1981 CCH OSHD li 25,738, p. 32,107 (No. 76-2644,198l);
Turner Co., 4 BNA OSHC 1554,1567,1976-77 CCH OSHD li 21,023 (NO. 3635,1976), r&d
on other grounds, 561 F.2d 82 (7th Cir. 1977).

‘That standard provides:

    8 1926.451     Scaffolding.

    idj kubular welded frame scaffokis. ...

    (;d>‘Guardrails made of lumber, not less than 2x4 inches (or other material
    providing equivalent protection), and approximately 42 inches high, with a
    midrail of lx6 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.

2The judge’s finding that the violation in question was willful is not on review.
 3

   Examining those factors here, we find that there were four employees exposed for

at least the amount of time that it took for the area director to reach his office and set the
wheels in motion for the inspection and for the compliance officer to arrive at the site.
Merchant’s had taken no precautions to prevent its employees from falling. Although the
likelihood of a fall may not have been high, there was substantial likelihood that there would
be a serious injury in the event of a fti from a height of 18 feet. On balance, then, we
consider this violation to be of moderate gravity.
The Secretary did not state the exact number of employees employed by Merchant’s.
The record indicates that Merchant’s had 9 employees at this site, but the company
apparently had other jobs going as well. Based on the information before us, we would
consider this to be a small company. We find it inappropriate here to allow any credit for
good faith or for previous history, because Merchant’s had been cited for three prior
violations of this same standard, and its superintendent on the site admitted that, although
he knew of the standard’s requirements, he elected to proceed without guardrails since his
normal scaffold supplier did not have any available, rather than to try to obtain railings from
another supplier or to build them. Under the circumstances, it appears that a penalty of
$7,500 is appropriate for this violation.3

%e Omniilms Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 5 3101 (1990),
amended section 17(a) of the Act, 29 U.S.C. 5 666(a), to provide that an employer may be
assessed a penalty of up to $70,000 for a willful or repeated violation “but not less than
$5,000 for each willful violation.” Because we find it appropriate to assess a penalty higher
than $5,000, we need not reach either the argument made by Merchant’s that the
amendment did not establish a mandatory minimum for the reason that the Commission has
the authority to assess no penalty for a violation that is not serious, so a willful violation that
is not serious could carry no penalty, or the Secretary’s argument that the Commission has
no authority to assess a penalty of less than $5,000 for any willful violation. We therefore
express no view on these issues, which were not directed for review. Under Rule 92(a) of
the Commission’s Rules of Procedure, 29 C.F.R. 9 2200.92(a), except in unusual
circumstances, the Commission will not decide issues that have not been directed for review.
NorthwoodStone &Aspha& Inc. 16 BNA OSHC 2097,2098 n.l,1994 CCH OSHD ll30,583,
p. 42,347 n.l (No. 91-3409, 1994). Commissioner Foulke notes that our finding that there
was a substantial likelihood of serious harm if an employee fell is an implicit finding that this
violation was willful-serious and that the amendment to section 17(a) establishing a statutory
(continued...)
 4

                            II. THE FORKLIFr      CITATIONS
   The compliance       officer observed three violations of OSHA standards        involving a

forklift that Merchant’s leased for use at this jobsite: the forklift had no seatbelt, its horn did
not work, and it was left running with its forks at waist height. The judge found that these
conditions violated the standards at 29 C.F.R. 30 1926.602(a)(2)(i)4, 1926.602(a)(9)(i)5, and
1926.602(c)( l)( w‘)6 respectively. The merits of these violations are not on review. The.

3(...continued)
minimum would apply where the Commission finds a penalty below that amount to be
appropriate.

dThat standard provides:

   8 1926.602 Material handling equipment.

    (a)    Earthmoving equipment; General (1)

   &Seat be&s.(i) Seat belts shall be provided on all equipment covered by this
   section and shall meet the requirements of the Society of Automotive
   Engineers. 53864969, Seat Belts for Construction Equipment. Seat belts for
   agricultural and light industrial tractors shall meet the seat belt requirements
   of Society of Automotive Engineers J333a-1970, Operator Protection for
   Agricultural and Light Industrial Tractors.

‘That standard provides:

   8 1926.602 Material handling equipment.

    (a)    Earthmoving equipment; General (1)

   ~!&udibZe alarms. (i) All bidirectional machines, such as rollers, compacters
   [sic], front-end loaders, bulldozers, and similar equipment, shall be equipped
   with a horn, distinguishable from the surrounding noise level, which shall be
   operated as needed when the machine is moving m either direction. The horn
   shall be maintained in an operative condition.

mat standard provides:

    0 1926.602 Material handling equipment.

                                                                                 (continued...)

5

questions before us involve the degree of the violation involving the lack of an operable horn
and the appropriateness of the penalties assessed by the judge for all three violations.
A. 29 C.F.R. 6 1926.602(a)(g)(i).
The Secretary alleged that the violation of section 1926.602(a)(g)(i) for not having
an operable horn on the forklift was serious. The compliance officer testified that, because
the horn did not work, the forklift could go around a blind comer and strike an employee
who could not be warned by the operator’s horn. The judge found that the Secretary had
failed to prove that the violation was serious because the worksite was open and was large
enough to go wide around the comers, and the forklift moved at no more than 5 miles per
hour.
A violation is serious under section 17(k) of the Act, 29 U.S.C. 6 666(k), if it creates
a substantial probability of death or serious physical harm. It is clear that the failure to use
a horn to warn employees of the forklift’s approach at 5 miles per hour is not likely to cause

6(...continued)
(c) Lifting and hauling equipment (other than equipment covered under Subpart
Nof thispart). (1) Industrial trucks shall meet the requirements of 8 1926.600
and the following:

    (vii ‘All industrial trucks in use shall meet the applicable requirements of
    design, construction, stability, inspection, testing, maintenance, and operation,
    as defined in American National Standards Institute B56.1.1969, Safety
    Standards for Powered Industrial Trucks.

The American National Standards Institute standard incorporated by reference provides in
pertinent part:

                                        SECIION    6

    OPERATING         SAFETY RULES AND PRACTICES


    . . . .
    E   l     When leaving a powered industrial truck unattended, load engaging
              means shall be fully lowered, controls shall be neutralized, power shut
              off, brakes set, key or connector plug removed. Block wheels if truck
              is parked on an incline.

6

an accident. However, the question is not whether an accident was a likely result of this
violation. The provision in section 17(k) that a violation is serious if there is a substantial
probability that death or serious physical harm could result does not mean that the occur-
rence of an accident must be a substantially probable result of the violative condition but,
rather, that a serious injury is the likely result should an accident occur. Super Excavators,
Inc., 15 BNA OSHC 1313, 1315, 1991 CCH OSHD ll 29,498, p. 39,804 (No. 89-2253, 1991);
Natkin, 1 BNA OSHC at 1205, 1971-73 CCH OSHD at pp. 20,967-68. Examining whether,
if an accident did occur, the likely result would be a serious injury, we find that an employee
who was struck by a pallet of bricks or by the extended forks, even at 5 miles per hour or
less, could suffer serious injury. Accordingly, we conclude that the judge erred in classi&ing
this violation as not serious. We find that this was a serious violation.
The Secretary proposed a penalty of $900 for this violation; the judge found that it
was not a serious violation and concluded that it was appropriate to assess no penalty.
Having found that the violation was serious, we must assess a penalty.
Assessing the gravity of the violation, we find that all employees on the worksite
except the forklift operator were exposed. Since Merchant’s had nine employees on the site,
eight employees were exposed. The duration of the exposure began when the walls of the
structure were built high enough that the employees and the forklift operator could not see’
each other around comers, and it lasted several days. The record does not indicate that
Merchant’s took other precautions to prevent an accident, although the likelihood of an
accident may be considered low because the low speed of the forklift could enable the
operator to avoid one. The record shows that Merchant’s had a history of violations of other
safety standards, but does not indicate that the company had previously been cited for a
violation of this standard. In terms of good faith, we note that, while the forklift came from
the rental company with a defective horn, Merchant’s does not appear to have made any
attempts to have the horn repaired or replaced. On balance, we consider a penalty of $250
to be appropriate.
B. 29 C.F.R. 6 1926.602(a)(2)(i).
The Secretary proposed a penalty of $1,200 for the violation of 29 C.F.R.
8 1926.602(a)(2)(‘)1 , involving the lack of a seatbelt on the forklift; the judge assessed a
penalty of $100. We deem $250 to be an appropriate penalty for this violation in light of
the statutory penalty factors below.
The potential hazard was that, if the forklift tipped, the operator could be thrown
from his seat and injured, perhaps even rolled on by the forklift. The only employee
exposed to the violation was the forklift operator, but the violation continued as long as the
forklift was being operated. Merchant’s took no other precautions to protect the operator
because it did not perceive this to be a hazard, and we consider the likelihood that an
accident would occur to be low. Again, Merchant’s was a small company with a history of
safety violations but no prior violations of this standard. Finally, it rented the forklift, which
came without a seatbelt.
C. 29 C.F.R. 6 1926.602(c)(l)(vi). .
The final item on review alleged that the forklift was left running with its forks at
waist height, a practice prohibited by the American National Standards Institute standard
incorporated by reference into 29 C.F.R. 8 1926.602(c)(l)(vi). The compliance officer
testied that the danger resulting Corn this violation was that, if the forklift accidentally was
hocked into gear and began moving without a driver, it could impale an employee. The
record indicates that the forklift was difficult to start and that it had been left running
because the operator feared that, if he turned it off, he might not be able to get it started
again. Merchant’s had already called the leasing company and was waiting for a mechanic
to arrive and repair the machine. The Secretary proposed a penalty of $1,200 for this item,
and the judge assessed a penalty of $100.
The evidence as to Merchant’s’ size and prior history is the same as for the other
items. As to good faith, we note that Merchant’s had called the leasing company and
requested that the defect be corrected, although it continued to operate the machine. We
consider the gravity here to be low because the only employee who was seen to be exposed
to this situation was the forklift operator himself, and the condition existed only
intermittently during that morning. Although Merchant’s did not take any alternative
precautions to prevent an accident, the likelihood that an accident would occur was low.
Here, we deem it appropriate to assess a penalty larger than that assessed for the
other forklift items because Merchant’s had more control over this situation. Even if it was
 8

necessary to leave the forklift running, the fork should have been lowered as required by the
standard. The combination of these conditions, both of which were within the control of the
Merchant’s employee operating the forklift, makes a larger penalty appropriate. On balance,
we find that a penalty of $400 is appropriate.

                                  III. CONCLUSION
     For the reasons above, we find that the judge erred in finding that the violation of

29 C.F.R. 3 1926.602(a)(9)( i) was not serious. We find that it was a serious violation and
assess a penalty of $250. We assess penalties of $250 for the violation of 29 C.F.R.
5 1926.602(a)(2)(i) and $400 for the violation of 29 C.F.R. 5 1926.602(c)(l)(vi). For the
willful violation of 29 C.F.R. 0 1926.451(d)(lO), we assess a penalty of $7,500.

                                                  Commissioner

Dated: December 30, 1994
Weisberg, Chairman, concurring:
I agree with what my colleagues decided in this case, namely that a penalty of $7500
is appropriate for the scaffold violation, that the judge erred in classifying the violation of
section 1926.602(a)(9)(1) (not having an operable horn on the forklift) as not serious, and
that penalties of $250, $250 and $400 are appropriate for the three forklift violations.
However, I take issue with what they failed to decide.
I would hold that the judge erred by assessing a penalty lower than $5000 for the
scaffold violation because it is a serious willful violation and the Omnibus Budget
Reconciliation Act of 1990, Pub L No. 101-508, 6 3101 (1990) clearly sets a minimum
penalty of $5,000 for such violations. The Budget Reconciliation Act multiplied sevenfold
the maximum penalties that could be assessed and amended section 17(a) to provide that
an employer may be assessed a penalty of up to $70,000 for a willful or repeated violation,
“but not less than $5,000 for each willful violation.” 29 USC 8 666(a).
In assessing a penalty of $500 for a willful violation, the judge failed to address or
even mention the issue of a $5,000 statutory minimum for a willful violation. The fact that
the Commission is assessing a penalty in excess of $5,000 does not obviate the need to
correct the judge’s error and omission. By not correcting the judge’s oversight and by
choosing to avoid the issue, my colleagues have compounded the judge’s error.
I am mindful of the need to exercise some judicial restraint and to not expend
resources deciding unnecessary issues. However, the judge’s action in assessing a penalty
less than the statutory minimum goes to the heart of this case and is of major importance
in the enforcement of the Act. This is an issue that was squarely raised by the Secretary and
argued by both the Secretary and Merchant’s in their briefs to the Commission and is clearly
encompassed in the directed issue of what penalty the Commission should assess for willful
citation 2, item 1. This is an important issue that the judge totally missed. This is not an
issue to save for a rainy day. Nor has the Commission decided so many issues this month
that this additional holding could be considered burdensome. In short, there is no good
reason for my colleagues choosing to duck this issue. In the 1990 Budget Reconciliation Act,
Congress set a minimum penaltvd of $5,000 for a willful violation. Whether or not my
 2

colleagues agree with Congress’ action, Congress has spoken and they have to take
cognizance of the fact that there is now a $5,000 minimum penalty for a willful violation.

                                               &at              tt* wnioaen4
                                             Stuart E. Weisberg

Dated: December 30, 1994 Chairman
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

PHONE
COM (202) 6os5100 EL (202) 6065050
~(202)606-5100 m@W-

                                                 ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
.
V. . Docket No. 92-0424

MERCHANT’S MASONRY, INC.,

                   Respondent.




                                  NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
December 30,1994. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED wHowIsHEs
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS m 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupationql Safety and Health Act of 1970, 29 U.S.C. 6 660.

        s




                                                         FOR THE COMMISSION

December 30, 1994 v

Date .Darling, Jr.
Executive Secretary
Docket No. 92-0424

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202

Steven E. Sanders, Esquire
GUM, Smith & Kaster, R.L.L.P.
Building One
5800 One Perkins Place Drive
Baton Rouge. LA 70808

Stanley M. Schwartz
Administrative Law Judge
Occupational Safety and Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242-0791
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200363419

                                                                            FAX:
                                                                            COM (202) 606-5050
                                                                            Frs (202) 6064050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-0424
MERCHANTS MASONRY, INC.
Respondent.

                 NOTICE OF DOCKETING
          OF ADMINISTRATIVE L4W JUDGES                     DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on June 1, 1993. The decision of the Judge
will become a final order of the Commission on July 1, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
June 21, 1993 in order to ermit sufficient time for its review. See
Commission Rule 9 1, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: June 1, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-0424

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
525 Griffin Square Bldg., Suite 501
Griffin & Youno Streets
Dallas, TX 75282

Keith Merchant
Merchang’s Masonry, Inc.
1002 Jason Drive
Denham Springs, LA 70726

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an cl3Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00108765918:06
 UNITED STATES OF WIEWA
OCCUPATIGNAL SAFETY AND HEALTH REVIEW CC)MMISSiON
RCOM 7811, FEDERAL BULDiNG
XN COMh’IERCE
DAiLAS, TEXAS 752423791

PHONE: FAX:
co? (214) 767-527: COM (214)X7-03%
F!-s 729-527: f=E 729-0350

                                                              ..

SECRETARY              OF LABOR,                              ..
                                                               ..
                      Complainant,                              ..
                                                                 ..
          v.                                                      ..     OSHRC DOCKET NO. 92-0424

MERCHANT’S               MASONRY, INC.,

                      Respondent.


APPEARANCES:

           Ernest A Burford, Esquire                  Keith R. Merchant
           Dallas, Texas                              Denham Springs, Louisiana
           For the Complainant                        For the Respondentgo se.

Before:          Administrative    Law Judge Stanley M. Schwartz

                                         DECISION AND ORDER

           This is a proceeding brought before the Occupational                    Safety and Health Review
Commission (“the Commission”)                  pursuant to section 10 of the Occupational        Safety and
Health Act of 1970, 29 U.S.C. 5 651 et seq. (“the Act”).
           The      Occupational     Safety     and Health        Administration     (“OSHA”)   inspected     a
construction         worksite in Baton Rouge, Louisiana,               where Respondent     was performing
masonry work, on October 16, 1991; as a result, Respondent                     was issued a serious citation
with six items and a willful citation with one item. Respondent contested both citations, and
a hearing was held on August 21, 1992.

2

                     Willful Citation 2 - 29 C.F.R. 5 1926.451(d)(lO)

    The subject standard provides as follows:                         .
    Guardrails made of lumber, not less than 2x4 inches (or other material
    providing equivalent protection), and approximately 42 inches high, with a
    midrail of lx6 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.
    The inspection in this case came about after the Baton Rouge OSHA area director

drove by the site on October 16 and obsewed employees on an unguarded scaffold; he
reported the condition to one of the supervisors in his office, who in turn assigned Greg
Honaker, an OSHA compliance officer, to inspect the site. Upon arriving at the site,
Honaker saw employees working on top of a scaffold about 18 feet high without any
protection, as depicted in G-2 and G-3. He discussed the condition with Scott Merchant,
the company’s jobsite superintendent, who promptly had the company’s scaffold builder put
another level of scaffolding on top of that already erected and a midrail across each section
on that level, as shown in G-4; in Honaker’s opinion, the single midrail across each section’s
cross bracing abated the hazard,
Honaker testified that when he asked why the scaffolding was unguarded, Merchant
told him the employees had only a few rows of bricks to lay and would not be up on the -
scaffold for long. Honaker also testified that when asked if he ever guarded scaffolds over
10 feet high, Merchant replied “sometimes we do and sometimes we don’t.” Upon returning
to his office and checking its history, Honaker learned the company had been cited pursuant
to the same standard three previous times, in 1987,1988 and 1989. He went back to the site
the next day to discuss the prior citations with Merchant, who told him he recalled them.
In addition to the foregoing, the Secretary presented at the hearing G-6, a copy of
the settlement agreement pertaining to the 1989 inspection, which, as Respondent itself
admits, involved a citation for lack of guardrails. The Secretary also presented G-7, a copy
of a default judgment issued in 1990 for the amount of $4,317.98 plus interest, and
Respondent does not dispute the Secretary’s assertion that G-7 relates to the 1987 and 1988
igqections and that both of those involved citations for lack of guardrails.
 3

    In defense of the citation, Respondent        contends that OSHA has a “vendetta” against

it. Respondent has, in fact, had several OSHA inspections. Besides those noted above, the
company was inspected a week before the subject inspection, which resulted in a hearing
before the undersigned on April 2, 1992. Moreover, Keith Merchant, Respondent’s
president, testified that one of his jobsites was inspected just prior to the subject hearing.
Nevertheless, as noted at the hearing, there is no evidence of any improprieties on the part
of OSHA in regard to its dealings with the company; accordingly, Respondent’s contention
is rejected.
Respondent next contends that OSHA’s enforcement of the guarding requirements
has been inconsistent. In support of this contention, Keith Merchant testified that the
OSHA representative who conducted the latest inspection advised the company that the
method approved by Honaker, which was in use at the site, did not comply with the
standard. However, even assuming arguendu that there have been some inconsistencies in
OSHA’s enforcement of the standard, it is undisputed Respondent’s employees were working
on top of the scaffold at the subject site without any protection.’ Respondent’s contention
is therefore rejected.
Respondent’s final contention is that the violation was not willful. In this regard,
Keith Merchant testified he had tried to have guardrails at the site but that the company-
from which he had rented the scaffolding had none available. He explained that the
company had given him the last of its guardrails for the job that was inspected a week
before the subject site, and that it was to have notified him when it had more guardrails
available.2 He also explained that his employees had been at the subject site for a week
or two at the time of the inspection, that they were protected by the cross bracing on the
lower levels, and that the guardrails installed on the top level were probably rebar.
Merchant further testified he has had his own business for ten years, and that his
employees always erect the scaffolding; most of them have been with him since the inception

‘1 note that OSHA has recently reopened its scaffolding rulemaking record, and that one of the areas to be
addressed is the use of cross bracing as fall protection. See 58 Fed Reg. 16,509,March 29,1993. Regardless,
as noted above, Respondent’s employees were working on the scaffold without any fall protection.

%kchant noted the guardrails were used on the other site, and that no citation was issued in that regard.
 4

of the company, which, in his view, operates safely and tries to meet OSHA requirements.
His job superintendents, including his brother, Scott Merchant, are aware of the scaffolding
requirements due to meetings he has held with them, and he visits sites to try to improve
safety but cannot be there all the time. Merchant said he had told all of his job
superintendents to guard scaffolds over 10 feet high, that the employees on top of the
scaffold should have had guardrails, and that he was unaware of the situation until after the
inspection. He also said the employees had probably been working about a foot Tom the
edge of the scaffold, which he acknowledged was dangerous, and that he would never
knowingly expose employees, particularly his own brother, to a hazard.
To establish a willful violation, the Secretary must show it “was committed voluntarily
with either an intentional disregard for the requirements of the Act or with plain indifference
to employee safety.” AL DeUovade, Inc., 13 BNA OSHC 1017,1019, 1986-87 CCH OSHD
lI 27,786, p. 36,339 (No. 83-1189, 1987). To demonstrate intentional disregard, there must
be evidence the employer was aware of the applicable standard and consciously disregarded
it. Williums Enter., Inc., 13 BNA OSHC 1249,1257,1986-87 CCH OSHD 7 27,893, p. 36,589
(No. 85-355, 1987). As wslliam further explains:
A willful violation is differentiated by a heightened awareness--of the illegality
of the conduct or conditions and by a state of mind--conscious disregard or
plain indifference.... It is therefore not enough for the Secretary simply to show
carelessness or lack of diligence in discovering or eliminating a violation.
Id. at 1256-57 and p. 36,589.
It is clear that both Keith and Scott Merchant were well aware of the scaffolding
guardrail requirements, particularly in light of company meetings in that regard and the
previous citations issued by OSHA. Despite this awareness, Scott Merchant allowed the
employees at the site to work on top of the scaffolding without any protection. Based on
the record, it can only be concluded that Merchant’s failure to comply with the standard was
a conscious disregard of the Act, and, consequently, a willful violation. This conclusion is
supported by a recent Commission decision which found a willful violation on similar facts.
See SalMasonty Contractors, Inc., 15 BNA OSHC 1609,1613-14,1992 CCH OSHD q 29,673,
pp. 40,209.11 (No. 8702007,1992). Moreover, as a supervisory employee, Scott Merchant’s
knowledge of the condition is imputable to Respondent. See, e.g., Clarence M Jones, 11
 5

BNA OSHC 1529, 1531, 1983 CCH OSHD ll 26,516 p. 33,749 (No. V-3676, 1983). This
citation is accordingly affirmed as a willful violation.
Turning to the assessment of an appropriate penalty, I note Respondent’s small size
and financial dZliculties, and Keith Merchant’s testimony that none of his employees has
ever fallen from a scaffold and that the only accident in the last three years resulted from
a worker dropping a block on his foot. I note also the violation’s apparently short duration,
and that the company has exhibited good faith by its prompt abatement of the condition and
other efforts to comply with the Act, including consulting with a State OSHA agency.
Finally, I note that Respondent is “offering the olive branch” to OSHA. It is hoped that
Respondent will contact OSHA, and that the agency will advise the company of what it views
as the proper means of complying with the standard. In any case, for the foregoing reasons
it is concluded that a penalty of $500.00 is appropriate for this citation.

                            Serious Citation 1 - Items 1, 2 and 3

    These items allege violations of 29 C.F.R. 83 1926.59(e)(l),               (g)(l) and (h) of the

Hazard Communication (“HAZCOM”) standard, which provide as follows:
192659(e)(l) - Employers shall develop, implement, and maintain at the
workplace, a written hazard communication program for their workplaces....
1926.59(g)(l) - Employers shall have a material safety data sheet for each
hazardous chemical which they use.
1926.59(h) - Employers shall provide employees with information and training
on hazardous chemicals in their work area at the time of their initial
assignment, and whenever a new hazard is introduced into their work area.
The basis of these citation items, pursuant to the language of the citations themselves
and Honaker’s testimony, was the company’s use of mortar mix and muriatic acid at the site
and its failure to comply with the foregoing provisions. It is undisputed the company had
not developed a written program or provided HAZCOM training at the time of the
inspection, and that it also did not have material safety data sheets (“MSDS’s”) for mortar
mix and muriatic acid.3 It is also undisputed that mortar mix, which can cause skin irritation

3B~ed on the testimony of Keith Merchant, the companyhas obtained MSDS’s for mortar mix and muriatic
acid since the inspection and has also complied with the written program and training aspects of the standard.
 6

and dermatitis, was used at the site. However, the record demonstrates that muriatic acid,
which can cause severe eye injuries and bums, was not used at the site, although it is used
at some of the company’s jobsites. The record further demonstrates the serious
characterization of these items was based on Honaker’s mistaken belief that muriatic acid
was, in fact, used at the site.
Although the foregoing establishes violations of the cited standards, the violations are
properly classified as nonserious. The only chemical in use at the site was mortar mix,.
which, as noted above, can cause skin irritation or dermatitis. In a recent decision, the
Commission held a HAZCOM violation to be nonserious because the Secretary failed to I
show that the skin rash which could have resulted from using the chemicals in that case
represented a substantial probability of death or serious harm. ARA Livirtg Centen of Texas,
Inc., 15 BNA OSHC 1417, 1418,1992 CCH OSHD lI 29,552, p. 39,957 (No. 8991894,1991).
These items are therefore affirmed as nonserious violations, and no penalties are assessed.

                             Serious Citation 1 - Items 4, 5 and 6

    These items allege violations of 29 C.F.R. 86 1926602(a)(2)(i),      (a)(9)(i) and (c)( l)(vi)

of the material handling equipment standard, which provide as follows:
1926.602(a)(2)(i) - Seat belts shall be provided on all equipment covered by
this section....
1926602(a)(9)(i) - All bidirectional machines ... shall be equipped with a hoti,
distinguishable from the surrounding noise level, which shall be operated as
needed when the machine is moving in either direction. The horn shall be
maintained in an operative condition.
1926602(c)(l)(vi) - All industrial trucks in use shall meet the applicable
requirements of design, construction, stability, inspection, testing, maintenance,
and operation, as defined in [ANSI] B56.1.1969, Safety Standards for Powered
Industrial Trucks.
The record shows that a bidirectional Koehring forklift which Respondent had rented
and was using to move materials at the site had no seat belt and an inoperable horn. The
record further shows that the forklift was left running and unattended with its forks elevated
about 45 inches during the lunch break. Honaker testified that all three of these conditions
were serious violations; the lack of a seat belt could have caused the operator to be thrown
 7

out and crushed by the forklift, its inoperable horn could have resulted in it striking an
employee, and its being left running and unattended could have resulted in its moving and
hitting an employee or a worker walking into the raised forks.
In regard to items 1 and 2, Respondent contends it was not responsible for the
missing seat belt and inoperable horn because it had leased the forklift and did not own it.
This contention is rejected; Commission precedent is well settled that an employer is
responsl’ble for hazardous conditions to which its employees are exposed, even if it did not
create the conditions.
Respondent next contends items 1 and 2 were not serious hazards because, as Keith
Merchant testified, the terrain was level, the forklift was only running at about 5 miles per
hour, and there would have been no sudden stops. This contention is unpersuasive in regard
to item 1, since it is apparent that load-handling equipment is susceptible to becoming
unbalanced, which, in this case, could have caused the operator to be thrown from the
forklift and seriously injured. However, Respondent’s contention is persuasive in regard to
item 2, since the lack of a horn on the slow-moving equipment, while violating the standard,
did not create a substantial probability of death or serious injury. Item 1 is affirmed as a
serious violation with a $100.00 penalty, and item 2 is affirmed as a nonserious violation with
no penalty.
In regard to item 3, Keith Merchant testified the forklift had been left idling because
it had not been running properly and would not start again if it was turned off; he also
testified that his company had already contacted the leasing establishment that day and was
waiting for its mechanic to arrive and repair the forklift. While this testimony explains the
condition, it does not rebut Honaker’s testimony about the serious nature of the violation.
Item 3 is affirmed as a serious violation with a $100.00 penalty.

                                 Conclusions of Law

   1.     Respondent,   Merchant’s   Masonry,   Inc., is engaged     in a business affecting

commerce and has employees within the meaning of section 3(5) of the Act. The
Commission has jurisdiction of the parties and of the subject matter of the proceeding.
 8

   2.   Respondent        was in serious violation of 29 C.F.R. 60 1926.602(a)(2)(i)            and

1926.602(c)(l)(vi).
3. Respondent was in nonserious violation of 29 C.F.R. 58 1926.59(e)(l),
192659(g)(l), 1926.59(h) and 1926.602(a)(9)(i).
4. Respondent was in willful violation of 29 C.F.R. 5 1926.451(d)(N)).

                                             Order

   On the basis of the foregoing Findings of Fact and Conclusions                     of Law, it is

ORDERED that:
1. Items 4 and 6 of citation number 1 are AFFIRMED as serious violations, and a
penalty of $100.00 is assessed for each of these items.
2. Items 1,2, 3 and 5 of citation number 1 are AFFIRMED as nonserious violations,
and no penalties are assessed for these items.
3. Item 1 of citation number 2 is AFFIRMED as a willful violation, and a penalty
of $500.00 is assessed.

                                                     Administrative Law Judge