DIC-UNDERHILL, a Joint Venture

OSHRC Docket No. 10798

Occupational Safety and Health Review Commission

October 31, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

William J. Pastore, for the employer

International Union of Op. Eng. 14 & 15, for the employees

Metal Lathers Union, Local 46, for the employees

United Cement Masons 780, for the employees

Carpenters, Local 257, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Robert P. Weil is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Review is limited to the following issues: n1

(1) Whether the Administrative Law Judge erred in concluding that citations alleging noncompliance with the standards at 29 C.F.R. § §   1926.150(e)(2) and 1926.500(e)(1) that have become final orders by virtue of a settlement agreement do not prove the occurrence of prior violations and, therefore, cannot be used as evidence to support a finding that repeated violations occurred; n2

(2) Whether the violations alleged in citations 2 and 4 for noncompliance with the standards at 29 C.F.R.   [*2]   § §   1926.500(e)(1) and 1926.150(e)(2) were repeated violations; and

(3) Whether the trial judge committed reversible error in concluding that Respondent's employees were exposed to the hazards at issue in citation 2 (29 C.F.R. §   1926.500(e)(1)) and citation 9, items 1(d), 1(e), and 1(f) (29 C.F.R. §   1926.500(d)(1)). n3

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n1 After the judge had filed his decision with the Commission, the Respondent filed a petition for review of that decision.   In its petition, the Respondent took exception to the judge's disposition of the following citations and citation items: citation 1, items 4 and 6; citations 2, 7 and 8; and citation 9, item 1, subitems (c), (d), (e), (f), (g), (h) and (i).   Moreover, the Respondent in several instances, e.g., with respect to citation 2 and subitems (d), (e) and (f) of citation 9, item 1, set forth multiple exceptions to the judge's treatment of the alleged violations.   In response to this petition for review, Commissioner Barnako directed review on some of the issues raised in the Respondent's petition.   However, that direction for review was limited to citation 2 and subitems (d), (e) and (f) of citation 9, item 1.   In addition, it was further limited to the exposure issue raised by the Respondent with respect to each of these alleged violations.

Review was not directed on the remaining issues raised in the Respondent's petition.   When an order for review directs that the Commission consider some issues raised in a petition for review but is silent as to other issues raised in the petition, the petition is deemed denied as to those other issues.   See Commission Rule of Procedure 91(d), 29 C.F.R. §   2200.91(d).   Accordingly, the issues raised in the Respondent's petition that were not directed for review are not before us.

The Secretary of Labor also petitioned for Commission review, excepting to the judge's determinations that (1) a prior citation that became a final order by virtue of a settlement agreement did not prove that a prior violation had occurred and, hence, could not serve as the basis for finding that the Respondent's failure to comply with 29 C.F.R. § §   1926.500(e)(1) and 1926.150(e)(2) was repeated, and (2) the violations alleged in citations 2 and 4 were other than serious rather than repeated violations of the Act.   Chairman Cleary directed the case for review on these issues.

Any issue neither raised in a petition for review not directed for review by an individual member upon his own motion, see Commission Rule of Procedure 92(c), 44 Fed. Reg. 70,106 at 70,111 (1979), to be codified in 29 C.F.R. §   2200.92 [formerly Rule 91a(c), 29 C.F.R. §   2200.91a(c)], is not before the Commission on review.

n2 The cited standards provide, in pertinent part, as follows:

§   1926.150 Fire protection

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(e) Fire alarm devices.

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(2) The alarm code and reporting instructions shall be conspicuously posted at phones and at employee entrances.

§   1926.500 Guardrails, handrails, and covers.

* * *

(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below . . . .

n3 Section 1926.500(d)(1) provides, in pertinent part:

§   1926.500 Guardrails, handrails, and covers.

* * *

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . on all open sides. . . .

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The Respondent, Dic-Underhill, a Joint Venture, was the subcontractor for structural concrete work at a building under construction when an Occupational Safety and Health Administration ("OSHA") compliance officer made a routine inspection on four days between September 12 and September 19, 1974.   As a result of that inspection, the Secretary of Labor ("the Secretary") issued nine citations to the Respondent, each of which citations it contested. Three of those citations, in whole or in part, are before us on review.   Citation 2 alleged that the Respondent failed to comply with 29 C.F.R. §   1926.500(e)(1) in that flights of stairs from the eighth floor to the thirteenth floor of the building in question were not equipped with standard stair railings or standard handrails as specified in section 1926.500(e)(1).   In citation 4, the Secretary alleged noncompliance with 29 C.F.R. §   1926.150(e)(2) in that fire alarm codes and reporting instructions were not posted at the locations indicated in the cited standard.   Failure to comply with 29 C.F.R. §   1926.500(d)(1) was alleged in item 1 of citation 9.   Subitems [*4]   (d), (e) and (f) of that citation item described the alleged violations, respectively, as the failure to provide a midrail at the perimeter of the entire ninth floor, the failure to provide perimeter guarding on the entire tenth floor while employees were stripping forms, and the failure to provide a midrail on the Third Avenue side of the eleventh floor where two employees were grinding the ceiling.

The Secretary further asserted that the violations alleged in citations 2 and 4 were repeated violations within the meaning of section 17(a) of the Act. n4 The Secretary based the repeated characterization on citations previously issued to the Respondent for noncompliance with the same two standards at other worksites [hereafter "the prior citations"].   The Respondent contested the prior citations n5 but they were later settled, along with other citations, without litigation and on the stipulated agreement of the parties that the notices of contest be withdrawn, the alleged violations affirmed, and the proposed penalties paid.   The settlement agreement included the following paragraph [hereafter "the exculpatory clause"]:

Respondents' agreement to pay the proposed penalty, to take the [*5]   proposed action and the signing of this agreement are not admissions by respondents of any violation of the Act or of the truth of any of the allegations or conclusions set forth in the citations, the complaints or any other pleadings filed in this matter.   Furthermore, respondents' agreement to pay the proposed penalties in the assessed amount of $35,000, to take the proposed action, and the signing of this agreement shall not be construed either individually or collectively as admissions of fault or liability in any claim or proceeding which exists or may arise and be pursued by any person, agency or entity other than in any subsequent proceedings brought by the complainant before the Occupational Safety and Health Review Commission or its judges, it being understood and agreed that this agreement shall constitute a Final Order of the Commission and nothing contained in this agreement shall be construed in any way to limit the right of the complainant to utilize such Final Order pursuant to the provisions of the Occupational Safety and Health Act of 1970.

Administrative Law Judge David H. Harris entered an order approving the settlement agreement on August 13, 1974. n6 On September [*6]   12, 1974, his decision became a final order of the Commission by operation of law when no Commissioner directed its review.

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n4 Section 17(a), 29 U.S.C. §   666(a), provides:

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

n6 Underhill Construction Corp., 1974-75 CCH OSHD P18,449 (Nos. 4247 et al., 1974).

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The inspection that led to the issuance of the citations now on review began on that same date as the final order for the prior citations -- September 12, 1974.   After a hearing on the merits of the instant citations, Judge Weil affirmed, among others, citations 2 and 4, as other than serious violations of the Act, and items 1(d), 1(e), and 1(f) of citation 9 as serious violations.   [*7]   However, the judge rejected the Secretary's allegation that the violations described in citations 2 and 4 were repeated violations of the Act.   He determined that the settlement agreement did not establish the Respondent's prior noncompliance with the cited standards and held that the Secretary accordingly had failed to prove that the Respondent repeatedly violated the Act.

II.

In citation 2 the Secretary alleged a repeated, other than serious violation of the Act based on noncompliance with the standard at 29 C.F.R. §   1926.500(e)(1).   Because of the multi-step process of stair construction used at the worksite, stair handrails were customarily not installed until the basic stair construction had been completed on the two flights of stairs immediately above the stairway in question.   When the compliance officer inspected the site, the stairs between the 8th and 13th floors had been poured and set but railings had not been installed completely.   Although the compliance officer did not see any employees on these stairs, employees of the Respondent were working on the 13th, 14th, and 15th floors at the time of his inspection. Moreover, the Respondent's project supervisor testified [*8]   that, before the railings were installed, employees had occasion to be on the stairs to ascend and descend as well as to do finishing work on the stairs.

To prove that the violation was repeated within the meaning of section 17(a) of the Act, the Secretary introduced into evidence the settlement agreement between the Respondent and the Secretary that resulted in the affirmance of the prior citations for failure to comply with 29 C.F.R. §   1926.500(e)(1).

The Respondent contended before the judge that the stairs had railings except when employees worked on them and that the Secretary failed to prove employee exposure to a hazard because (a) the compliance officer saw no employee on the stairs, (b) employees on the upper floors who used the stairs before the inspection did so when stair railings were in place, and (c) employees would not have used the stairs until the railings were repl ced.

The Respondent also argued that the alleged violation was not repeated. In its brief before the judge, it urged him to require proof of employer "flaunting" of the Act before holding section 17(a) applicable.   It further contended that the Secretary failed to sustain his burden of proving that [*9]   the prior violations were sufficiently similar to the instant one to warrant a "repeated" classification of the instant violation.

The judge affirmed citation 2 as an other than serious violation.   He found that some of the Respondent's employees working on levels above the ninth floor had used the stairs between the 9th and 13th floors during the interval between stair construction and railing installation and that they were thus exposed to a fall hazard. He also found that the stairs "were available to and may have been used by other employees." However, because the prior citations alleging noncompliance with the same standard had been contested by the Respondent and settled by the parties through an agreement rather than by litigation, the judge was unwilling to conclude that, as a matter of law, the Respondent had failed previously to comply with the same standard.   Accordingly, he vacated the allegation that the Respondent's failure to comply with section 1926.500(e)(1) was a repeated violation of the Act.

In analyzing this issue, the judge raised sua sponte the common law principles of collateral estoppel and res judicata.   However, he deemed them inapplicable to   [*10]   these facts.   He relied upon United States v. International Building Corp., 345 U.S. 502 (1953), for the proposition that issues resolved by a stipulated settlement and affirmed by court order are not necessarily agreed to on the merits by the parties, but rather may be settled because of collateral considerations.   The judge also cited several Commission decisions, including York Metal Finishing Company, 74 OSAHRC 19/D02, 1 BNA OSHC 1655, 1973-74 CCH OSHD P17,633 (No. 245, 1974), in which the Commission refused to apply res judicata or collateral estoppel in failure to abate proceedings when there had been no litigation on the merits of the underlying citation.   With respect to the particular prior citations at issue in this case, the judge further concluded that the parties had not intended that the settlement agreement would have the effect of an "adjudication as to the validity of Dic-Underhill's acts." He so concluded on the basis of the exculpatory clause in the agreement, set forth supra. An indicated previously, both the Secretary and the Respondent took exception to the judge's handling of citation 2.

The Secretary argues on review that the judge erred in distinguishing [*11]   between citations that become final orders of the Commission following litigation of the issues and those that become final orders as a result of settlement agreements.   He contends that every final order of the Commission is an appropriate predicate for a "repeated" charge when the prior and instant citations are for noncompliance with the same standard.   The Secretary states that, before the 1974 inspection that led to the issuance of citation 2, there was a Commission final order against this Respondent affirming prior citations alleging violations of the same standard at issue in citation 2.   Therefore, according to the Secretary, the judge erred in holding that the instant violation was not repeated.

The Respondent argues on review that the judge erred in affirming the allegation in citation 2 that it failed to comply with 29 C.F.R. §   1926.500(e)(1).   It reiterates before us the contention previously made before the judge that the Secretary failed to prove employee exposure to a fall hazard.

III

We conclude that the Respondent's exception to the judge's decision on citation 2 is without merit.   We have examined the record and conclude that the judge properly considered the [*12]   evidence and the parties' arguments concerning the issue of employee exposure to the alleged violation.   Accordingly, we adopt the judge's findings and conclusion on that issue.   See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).   Inasmuch as the exposure issue is the only issue before us relating to the merits of citation 2, we affirm the judge's conclusion that the Respondent violated the Act by failing to comply with section 1926.500(e)(1).

Although we agree with the judge's determination that the violation at issue was not a repeated violation, our reasons for so concluding differ from the judge's.

  In Dun-Par Engineered Form Co., 80 OSHARC    , 8 BNA OSHC 1044, 1980 CCH OSHD P24,238 (No. 16062, 1980), we recently ruled on a similar issue.   In that case, an employer had not contested various   [*13]   citations, and they therefore had become final orders of the Commission by operation of law. n7 The Secretary subsequently issued a citation alleging a repeated violation of the Act for failure to comply with the same standard that had been cited in the prior uncontested citations.   In a hearing on a contest of the repeated charge, the employer sought to challenge the validity of the previously uncontested prior citations.   In response, we expressly rejected the employer's contentions and stated that, regardless of its reasons for not contesting citations, an employer may not later contest them in the context of a hearing on an allegedly repeated violation.   We reasoned as follows:

Dun-Par had the opportunity to contest the earlier citations, and its reasons for failure to do so are irrelevant in a contest of the repeated citation.   Moreover, insofar as Dun-Par may be seeking to re-open the validity of the prior citations, this argument amounts to a collateral attack on citations that have become final orders of the Commission.   Dun-Par declined to test the soundness of the prior citations when it elected not to contest them.   It cannot now contend they were erroneous after refusing [*14]   to timely challenge them.

8 BNA OSHC at 1051, 1980 CCH OSHD at p. 29,493.

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n7 See §   10(a) of the Act, 29 U.S.C. §   659(a).

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This reasoning applies with equal force in the case now under review.   Like Dun-Par, Dic-Underhill had its opportunity to contest the earlier citations and thereby "test . . . [their] soundness." Indeed Dic-Underhill did contest the citations, although it later decided to withdraw that contest. Accordingly, "[i]t cannot now contend they were erroneous" after entering into a settlement agreement that resulted in their affirmance.   Since Judge Harris' order approving the settlement agreement and affirming the citations was a Commission final order not subject to collateral attack in this proceeding, Judge Weil erred in concluding that the order did not establish the existence of prior violations.

Judge Weil's reliance on the exclupatory clause in the settlement agreement was misplaced.   As part of the settlement between this Respondent and the Secretary, the former withdrew its notices of contest.   [*15]   Further, the agreement stated that it:

shall constitute a Final Order of the Commission and nothing contained in this agreement shall be construed in any way to limit the right of the complainant to utilize such Final Order pursuant to the provisions of the Occupational Safety and Health Act of 1970.

Contrary to the judge's interpretation of the settlement agreement, its plain language makes clear that the Secretary and the Commission may use it in a subsequent proceeding under the Act as the basis of a finding of a section 17(a) "repeated" violation.

Nevertheless, we conclude that the violation described in citation 2 was not a repeated violation of the Act.   In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979), we held that "[a] violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. We further stated that "[t]he Secretary, in order to prove any violation to be repeated, must demonstrate that the earlier citation upon which he relies became [*16]   a final order of the Commission prior to the date of the alleged repeated violation" (emphasis added).   7 BNA OSHC at 1064, 1979 CCH OSHD at p. 28,172. Consistent with this requirement, the Commission has previously vacated the allegation that a violation was repeated because of the Secretary's failure to prove that the antecedent violation upon which he relied became a final order of the Commission prior to the date of the alleged violation then under review.   See, e.g., Otis Elevator Co., 80 OSAHRC    , 8 BNA OSHC 1019, 1980 CCH OSHD P24,236 (No. 14899, 1980), appeal withdrawn, No. 80-4070 (2nd Cir. May 13, 1980). n7A

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n7A Commissioner Barnako's views with respect to repeated violations are set forth in his separate opinion in Potlatch Corp., supra. He nevertheless agrees with his colleagues that the Secretary must prove that the antecedent violation upon which he relies became a final order of the Commission prior to the date of the violation alleged to be repeated. Otis Elevator Co., supra, 8 BNA OSHC at 1026 n.18, 1980 CCH OSHD at p. 29,486 n.18.

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In this case the record does not establish that there was a prior final order for a substantially similar violation.   The inspection took place on four days.   The first day of the inspection, September 12, 1974, was the day on which the judge's order approving the agreement settling the prior citations became a final order of the Commission.   The record does not establish on which of the four inspection days the compliance officer detected the violation alleged in citation 2.   Therefore, if the violation was detected on the first day, there was not at that time a prior Commission final order within the meaning of our Potlatch decision.   Accordingly, we conclude that the Secretary failed to prove that the violation was repeated within the meaning of section 17(a) of the Act. n8

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n8 Chairman Cleary joins in the Commission's holding that the Secretary failed to prove that the violation was repeated because he failed to prove the existence of a prior Commission final order. In view of this disposition, the Chairman concludes that it is not necessary to reach the issue of whether the judge's reasoning was erroneous.   Nevertheless, Chairman Cleary agrees with his colleagues that a repeated allegation may be based on a Commission final order resulting from approval of a settlement agreement.

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IV

In Citation 4 the Secretary alleged that the Respondent was in noncompliance with the standard at 29 C.F.R. §   1926.150(e)(2) for failing to post fire alarm instructions at phones and at employee entrances.   He further alleged that this noncompliance was a repeated violation of the Act.   As with citation 2, the Secretary based his allegation that the violation was repeated entirely on the final order of September 12, 1974, approving the parties' settlement agreement. For the same reasons he vacated the repeated characterization of citation 2, the judge also vacated the repeated characterization of citation 4.   Thus, the Secretary raises the same exceptions to the judge's decision with respect to citation 4 that he raises with respect to citation 2.   Again we reject the judge's reasoning based on a distinction between final orders entered in contested cases after a full hearing and final orders entered after the submission of a settlement agreement. n9

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n9 For the reasons stated in footnote 8, supra, although he agrees with his colleagues' reasoning, Chairman Cleary concludes that, in light of the Commission's disposition vacating the repeated characterization, comment on the judge's treatment of the issues in unnecessary.

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Nevertheless, as with citation 2, we affirm the judge's conclusion that citation 4 was not a repeated violation of the Act, but again our reasons differ.   The record establishes that the compliance officer first detected the Respondent's failure to comply with section 1926.150(e)(2) on September 12, 1974, the first day of his inspection. The violation continued unabated throughout the duration of the inspection. Accordingly, the prior citations upon which the Secretary relies did not become final orders of the Commission before the date of the violation now on review.   That the violation continued unabated throughout the inspection does not change the analysis because the citation was issued for a single, albeit continuing, violation.

V

In citation 9, items 1(d), 1(e), and 1(f), the Secretary alleged willful violations of the Act based on noncompliance with the standard at 29 C.F.R. §   1926.500(d)(1) on the ninth, tenth, and eleventh floors, respectively. n10

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n10 Judge Weil vacated the willful allegation with respect to each of the three items at issue.   He affirmed the items as serious violations of the Act.   However, the proper classification of the violations is not an issue before us on review.

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Item 1(d):

On the ninth floor at the time of the inspection, one of the Respondent's employees was working in an interior stairway and ceven were smoothing the ceiling finish.   To reach the ceiling the seven employees worked on a scaffold that elevated them approximately 24" above the floor. The scaffolding covered less than half of the floor area and extended to the perimeter. The Respondent's laborers who worked with its plasterers moved the planks and sawhorses that formed the sacaffold as the work progressed.

Around the perimeter of the ninth floor was a steel cable top-rail 42" above the floor level.   There was no mid-rail on this perimeter guarding. However, there was a poly-propylene rope around the perimeter of the scaffold approximately 42" above the scaffold. The drop from the edge of the ninth floor to the next adjacent level was 70'-80'.   Employees working on the ninth floor had access to the entire floor, including the perimeter.

In its brief before the judge, the Respondent contended that the Secretary had cited the wrong standard, that the scaffolding standard at 29 C.F.R. §   [*21]   1926.451(o)(7) n11 was more pertinent, and that it had complied with those scaffolding requirements.   More particularly, the Respondent contended that the only employees the compliance officer had seen on the ninth floor were working on the scaffold and that those employees were fully protected.   In its view the scaffold was provided in effect with both a toprail (the rope around the scaffold perimeter approximately 42" above the scaffold) and a midrail (the steel cable top-rail around the perimeter of the floor, which cable was approximately 42" above the floor but also approximately 18" above the scaffold).   Accordingly, the Respondent concluded, the Secretary did not prove employee exposure to a fall hazard regardless of the absence of a mid-rail around the floor perimeter. The Respondent contended that employees were neither actually exposed, nor was there a reasonable likelihood that they would be exposed, to a fall hazard.

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n11 The standard provides:

§   1926.451 Scaffolding.

* * *

(o) Horse scaffolds.

* * *

(7) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail, of 1 X 6 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.

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Item 1(e):

On the 10th floor at the time of the inspection, employees of the Respondent were removing forming uprights.   These uprights were located throughout the floor area to within two feet of the perimeter. The compliance officer testified that there was no perimeter protection on the 10th floor when he inspected it on September 16.   Moreover, none of the employees were wearing safety belts.   Employees had access to the entire floor area and the drop to the next adjacent level was 80'-90'.   Exhibit C-3, a photograph taken by the compliance officer, shows a wire top-rail around the 10th floor. The compliance officer did not state when he took that picture.

The Respondent contended before the judge that, inasmuch as exhibit C-3 shows a top-rail around the 10th floor, the compliance officer's testimony indicating that there was no perimeter protection was unreliable.   It further contended that, because the compliance officer did not see any employees near the perimeter, the Secretary had not proved employee exposure to a fall hazard.

Item 1(f):

On the 11th floor at the time of the inspection,   [*23]   two of the Respondent's employees were grinding concrete ceiling seams that extended to the building perimeter. Along one side of the floor there was no mid-rail guarding. The drop from this perimeter to the next adjacent level was 85'.   One of the Respondent's employees was 25' from the edge lacking mid-rail protection.   The other employee worked further from the edge. However, the ceiling seams extended to the building perimeter and, at that time, seams extending to the side without mid-rail protection were yet to be sanded.   The employees had with them, but were not wearing, safety belts.   They had access to the entire floor area.

The Respondent contended before the judge that, because neither employee was closer than 25' from the unguarded edge, the Secretary had not proved employee exposure to a fall hazard. It also contended that it did not have control of the area in question.

Judge's Decision:

The judge affirmed items 1(d), 1(e) and 1(f) as independent serious violations of the Act.   For each item he assessed a $1000 penalty.   With respect to item 1(d), the judge found that there was no mid-rail perimeter protection and that the employees had access to the perimeter [*24]   while setting up and moving the scaffold as well as when moving back and forth on the ninth floor. The judge rejected the Respondent's principal defenses relating to the asserted applicability of the scaffolding standard.   Judge Weil concluded that the gravamen of the citation concerned exposure of the employees to a fall hazard while they were working or walking on the floor rather than while they were working on the scaffolding.

In reference to item 1(e), the judge found there was no railing on the 10th floor when five or more of the Respondent's employees worked there during the compliance officer's inspection of that floor on September 16.   The judge found that pictorial exhibit C-3 was taken on September 17 - the day following the compliance officer's inspection of the 10th floor - and that exhibit C-3 therefore did not rebut the compliance officer's testimony that there was no perimeter protection.   In view of the employees' access to the unguarded perimeter, the judge found that they were exposed to a fall hazard as alleged by the Secretary.

The judge found, as to item 1(f), that the employees had access to the hazardous conditions presented by the absence of mid-rail guarding [*25]   around part of the 11th floor perimeter. He further found that the Respondent had created the hazardous condition by removing the general contractor's temporary wire railings and by directing its masons to do the finishing work before the general contractor replaced the mid-rails. The judge found that the Respondent retained local control over the 11th floor and had a continuing duty to its employees.

The Respondent renews the same arguments before us that it raised before the judge concerning the issue of employee exposure to the violations alleged in items 1(d), 1(e) and 1(f).   We have examined the record and conclude that the judge properly considered the evidence and the parties' arguments and correctly ruled on the issues before him for the reasons he assigned.   Accordingly, we adopt the judge's findings and conclusions relating to employee exposure to the conditions described in citation 9, items 1(d), 1(e) and 1(f). n12 See Gulf Oil Co., supra. Because there is no other issue before us relating to these items, the judge's affirmance of items 1(d), 1(e) and 1(f) of citation 9 as serious violations is affirmed.

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n12 Commissioner Barnako concludes that the Secretary failed to prove that employees were exposed to the hazard alleged in citation 9, item 1(d).   Accordingly, he would vacate that item.   In his view, the Secretary has the burden of proving employee exposure to an alleged violation of the Act, a burden that is met by showing "that employees either while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces, will be, are, or have been in a zone of danger." Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD P20,448 at p. 24,425 (No. 504, 1976).   Applying this test to the record evidence on item 1(d), Commissioner Barnako notes that the employees were not in danger while traversing the floor from the internal stairway to the scaffold. Although the scaffolding extended to the perimeter, the Secretary did not establish that employees would get on the scaffolding at the perimeter rather than at areas closer to the stairway. Furthermore, there is no evidence demonstrating how the scaffold was set up and moved and from where employees would work while performing these operations.   Commissioner Barnako therefore concludes that the Secretary did not establish a reasonable predictability that the Respondent's employees were or would be in the zone of danger.   See Stahr and Gregory Roofing Co., 79 OSHRC 2/B12, 7 BNA OSHC 1010, 1979 CCH OSHD P23,261 (No. 76-88, 1979) (concurring and dissenting), and Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978) (concurring and dissenting).

Commissioner Barnako agrees to affirm items 1(e) and 1(f) since the evidence that uprights to be removed were located within two feet of the unguarded perimeter (item 1(e)) and that concrete seams remaining to be ground extended to the inadequately guarded edge (item 1(f)) establishes that in both instances employees in the course of their assigned duties would enter the zone of danger.

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VI

Accordingly, the judge's decision and order are affirmed. n13 SO ORDERED.

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n13 Those portions of the decision and order that we have not reviewed are accorded the precedential value of an unreviewed judge's decision.   Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2nd Cir., May 17, 1976).

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CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, concurring in part and dissenting in part:

I concur with the Commission decision in all respects except that I would affirm citation 4, regarding fire alarm codes and reporting instructions, as a repeated violation.   In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979), we held that the Secretary establishes a prima facie repeated violation by showing that "at the time of the alleged repeated violation, there was a Commission final order against the [*28]   same employer for a substantially similar violation." 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. The majority acknowledges that the violation alleged in citation 4 continued after the date of the final order for previous violations of the same standard.   A violation exists and may be cited on any day until it is abated.   See Brown & Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1979 CCH OSHD P23,435 (No. 13685, 1979).   Thus, a repeated violation of the cited standard may be found here if the violation was substantially similar to the previous ones.   Potlatch Corp., supra. n1

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n1 The complaint alleged that the violation occurred "on September 12, 1974," and was a repeated violation.   However, at the hearing the compliance officer testified that the violation existed on each of the subsequent days of the inspection. No one could claim surprise that the continuing nature of the violation might affect whether the violation was found to be repeated, and the allegation of a repeated violation was squarely before the parties.   Thus, an amendment of the complaint to conform to the evidence is appropriate here.   See, e.g., Bill C. Carroll Co., 79 OSAHRC    , 7 BNA OSHC 1806, 1979 CCH OSHD P23,940 (No. 76-27488 1979).

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The terms of the cited standard, 29 C.F.R. §   1926.150(e)(2), are specific, n2 and the conditions described in the present and previous citations are virtually identical: fire alarm codes and reporting instructions were not conspicuously posted at employee entrances to a construction site. n3 On review, Dic-Underhill does not dispute the judge's finding that it failed to comply with that requirement.   Instead, it specifically relies on the judge's reasons for vacating the citation, which we have rejected as a matter of law.   Given the specific nature of the standard and the virtually identical circumstances of the previous and present violations, I conclude that Dic-Underhill could adduce no evidence to rebut the Secretary's prima facie showing of a repeated violation.   Therefore, no purpose would be served in remanding this case for additional evidence.   Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979).   I would affirm citation 4 as a repeated violation.   In addition, the Secretary has not specifically objected on review to the judge's penalty   [*30]   assessment for the repeated violation.   Accordingly, I concur with the majority in affirming the judge's assessment of $100. n4

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n2 See Lead opinion at note 2.

n3 The two previous citations were issued to Dic-Underhill as a result of inspections on or about July 25 and August 1, 1973, at its construction site at Starrett City, Brooklyn, New York.

n4 In addition, Dic-Underhill relies on the reasoning of an unreviewed judge's decision, Willamette Iron & Steel Co., 78 OSAHRC 14/C1, 1978 CCH OSHD P23,582 (No. 76-4274, 1978), in which the judge concluded that a violation should not be classified as repeated unless a penalty in excess of $1000 is appropriate.   Of course, unreviewed judges' decisions have no precedential value and are not binding on the Commission.   Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).   Furthermore, the judge's reasoning in Willamette is inconsistent with our decision in Potlatch Corp., supra.

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