When Close is Enough: Horseshoes, Hand Grenades and OSHA Repeat Violations; Secretary of Labor v. Midwest Masonry Inc., 19 OSHC (BNA) 1540, Sept. 7, 2001

Date: Feb 01, 2003

Under the Occupational Safety and Health Act, penalties may be assessed for other than serious, serious and willful violations. In addition, severe penalties up to $70,000 are authorized for repeat violations. Therefore, it is important for employers to understand what it means to repeatedly violate the act.

Through interpretation letters, OSHA states that its inspectors may cite employers for repeat violations if the alleged violation is identical or "substantially similar" to an earlier violation. Although employers clearly understand that repeat violations carry higher penalties, the definition of a "substantially similar" violation is not clear when comparing two alleged violations. A recent case, Secretary of Labor v. Midwest Masonry Inc., sheds some light on the subject. The general rule is that employers may find themselves backing a repeat violation if compliance efforts do not address the underlying hazard.

The Case

In 1999, Midwest Masonry Inc. was the bricklaying contractor for a construction project on the University of Nebraska's Kearney West Campus. In order for Midwest to complete its work, it had to build a scaffold along the entire length and the width of the building it was helping to construct. On the date of the inspection, the scaffold had two completed work platforms with one under construction. The first completed level was 6 feet 10 inches from the ground, while the second level was 13 feet 4 inches" above the ground. When the OSHA compliance officer inspected the second-level platform, he saw a mortarboard, a pair of coveralls, a masonry saw and bundles of bricks. Midwest employees had placed all those items on the work platform. At the time of the inspection, it did not have guardrails.

OSHA cited the company for a violation of 29 CFR Part 1926.451 for failing to install appropriate guardrails. The standard requires that "guardrail systems shall be installed along all open sides and ends of platforms. Guardrail systems shall be installed before the scaffold is released for use by employees other than erection/dismantling crews." In its defense, Midwest pointed to the fact that no employees were working on the platform while the OSHA compliance officer conducted his inspection but admitted that its employees worked at the perimeter of the platform in stocking the materials. In addition, employees had not begun their bricklaying work. Other employees simply had placed the materials on the platform in preparation of work.

The secretary of labor, however, argued that the violation should have been classified as "repeated" based on a 1997 final order for a scaffold guardrail violation by Midwest. "The agency argued that the 1997 violation was substantially similar, which had been issued after the compliance safety and health officer observed employees working on the upper level of a scaffold without guardrails. In that case, employees had been removing mortar from a tub and placing it on a mortarboard while another employee was cutting block with a masonry saw.

The Decision

While the Administrative Law Judge (ALJ) did find a violation of the OSHA standard, he rejected the secretary of labor's contention that it was a repeat violation. The ALJ found one fact to be extremely important: The Midwest employees had not begun their masonry work. The employees were "exposed" to the potential fall hazard for a brief moment while they brought materials to the second-level platform.

Midwest argued that because the scaffold had to be enclosed in plastic, the materials had to be brought to the second level before the scaffold erection process was complete. The ALJ concluded the company was not on notice that "the Secretary's interpretation of 'erection' would include stocking and enclosing the scaffolding." He lowered the classification to "serious," reducing the fine to $100. In addition, he concluded that Midwest believed, in good faith, that it was conforming to the OSHA standard.

OSHRC's Interpretation

The Secretary of Labor appealed the ALJ's decision to the Occupational Safety and Health Review Commission (OSHRC). The OSHRC stated that to establish a prima facie case when alleging a "repeat violation," the Secretary of Labor must show that the two violations in question were of the same or substantially similar standard. The OSHRC illustrated its interpretation of a "substantially similar" set of circumstances with several examples. For instance, "permitting use of unguarded scaffolds for two different projects, such as construction work the first time and replacing light bulbs the second time, could result in repeated violation under two entirely different standards." An earlier OSHRC decision found that a failure to protect employees from cave-in hazards under the standard dealing with "unstable or soft" soil was substantially similar to failure to protect employees from the same hazards under a different standard dealing with "hard or compact" soil. The final example was the case involving prior and subsequent exposure of employees to fire and explosion hazards because of excessive grain dust accumulations in a grain elevator, even though the first citation alleged a violation of the General Duty Clause violation, while the second violation was cited against a specific standard.

The OSHRC concluded that the main factor in determining whether a violation is repeated is whether the two violations dealt with "substantially similar" hazards. With Midwest, the OSHRC found that the hazards created by the 1997 and current alleged violations were the same - fall hazards from scaffolding as a result of missing safety railings. In fact, the OSHRC believed the two situations were virtually identical. Both involved missing railings, brick masons' scaffolds, similar heights, similar work (preparing for the masons' work), and similar methods to abate the hazard (installing the guardrail). The only difference the OSHRC found, and it gave the difference little weight, was that the 1997 violation involved employees using the masonry saw, mud board and other materials. The current violation simply involved employees placing those items on the work platform.

Midwest unsuccessfully argued that the 1997 violation did not place it on notice, a claim it thought was supported by the ALJ's finding that the company believed in good faith that it was complying with the OSHA standard. The OSHRC refused to address the argument, finding that since the underlying violation was not at issue, the employer's "alleged" good faith was irrelevant when determining whether a compliance officer should classify a violation as repeated.

As for the lack of notice argument, the OSHRC disagreed. It found that the 1997 violation did in fact give notice to the company. "Although Midwest takes great pains to distinguish between stocking brick and laying brick, they are both 'work,' and employees performing either activity on the scaffold platform without midrails would be exposed to a fall hazard of over 13 feet. The 1997 decision thus gave Midwest fair notice that guardrails must be installed before the sort of work involved here begins." The OSHRC further found that the language of the standard requires guardrails before the employer opens the scaffold for use by employees not involved with the erection/dismantling process. The OSHRC asserted that the standard's language puts all employers on notice of the requirement that before "any" work other than erection or dismantling is done, guardrails are required.


The OSHRC's decision upheld OSHA's interpretation of what constitutes a repeat violation. Employers will be liable for repeat violations if the current violation deals with a hazard that is substantially similar to a past violation and is a final order of the OSHRC. In addition, OSHA as a matter of policy, only looks back three years, but could go back further, as nothing in the statute suggests a time limit for repeat violations.

Employers, therefore, must be on guard, and take steps to make sure that once a hazard is addressed, complacency and inattention do not cause old habits to slip into current practices. The costs can be very large.

For further information about this article, please contactDavid G. Sarvadi at 202-434-4249or by e-mail at sarvadi@khlaw.com.