DUN-PAR ENGINEERED FORM COMPANY

OSHRC Docket No. 16062

Occupational Safety and Health Review Commission

February 21, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

William L. Hess, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Vernon Riehl is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   In his decision, Judge Riehl found that respondent, Dun-Par Engineered Form Company ("Dun-Par"), was in repeated violation of the Act for noncompliance with the construction safety standard published at 29 C.F.R. §   1926.500(d)(1) n1 by failing to guard the perimeter of the second floor and roof level of a building under construction.   He assessed a penalty of $1600.

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n1 The standard 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, as specified in paragraph (f)(1)(i) of this section, on all open sides, . . . .

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The Commission majority affirms a repeat violation of the Act for failure to comply with the cited standard on the second floor level, vacates the judge's finding of a repeat violation on the roof level, and assesses a penalty of $800.   Chairman Cleary and Commissioner Cottine form the majority in concluding that Dun-Par was in repeated violation of the standard on the second floor level.   Commissioner Barnako would hold that Dun-Par was in violation of the standard at the second floor level, but would remand to determine if the violation is repeated. Commissioners Barnako and Cottine form the majority in concluding that the citation for violation of the standard at the roof level must be vacated, and that a penalty of $800 is appropriate for the violation at the second level.   Chairman Cleary would find a repeat violation on the roof level and assess a total penalty of $1600.

I

Dun-Par was engaged as a subcontractor in the construction of a two-story school building in Kansas City, Knasas, when the construction site was inspected by an OSHA compliance officer on November 18, 1975.   Dun-Par's work [*3]   on the building consisted of erecting and dismantling forms for the construction of the concrete floors. Dun-Par would erect upright four-by-fours equal in height to one story of the building and then construct an open horizontal gridwork of four-by-fours and four-by-sixes on top of the uprights and on top of the vertical concrete support columns previously poured.   When this was completed, Dun-Par's employees would place metal pans measuring thirty by thirty-six inches into the horizontal openings or "voids" in the gridwork. Prior to the insertion of pans, the horizontal structure consisted of an open gridwork or latticework, except for a few areas that were covered with plywood sheets.   Once this framework was constructed and the metal pans were in place, Dun-Par's employees would withdraw from that area of the structure and another subcontractor would pour concrete into the forms, thus creating a new level of the building.   After the concrete had cured satisfactorily, Dun-Par's employees would return, strip the forms, and begin erecting uprights from the new concrete surface to support the formwork for the next level.

At the time of the inspection the concrete had been poured [*4]   on the second floor. Employees of Dun-Par were erecting upright forms and beams on the second floor and building grid-like horizontal forms on top of the uprights to create the roof level of the building.   In areas where the horizontal gridwork had been completed, employees were placing metal pans into the rectangular openings of the gridwork. The pans had been carried to the roof by means of a conveyor elevator extending from the ground to one edge of the roof level.   The photographic evidence indicates that pans had been inserted in a large portion of the roof level gridwork, so that much of that level was a solid surface.   Although both the second and top levels of the structure had open sides, there were no standard railings or other types of perimeter guarding on either level.   The second floor was approximately twelve feet and the top level about twenty-four feet above the ground.

Dun-Par was charged with a repeated violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.500(d)(1) by exposing its employees working on the second floor and roof levels of the building to fall hazards of twelve and twenty-four feet resulting from the unguarded open sides [*5]   of the building.   A penalty of $1600 was proposed by the Secretary of Labor ("Secretary").

Dun-Par had been cited on four previous occasions for allegedly violating the same standard -- 29 C.F.R. §   1926.500(d)(1).   Two of the citations were issued approximately one and one-half years before the inspection that resulted in the citation at issue, and two were issued within nine months of that inspection. Dun-Par did not contest three of the prior citations and, although it contested the other, Dun-Par subsequently withdrew that notice of contest. All prior citations, therefore, became final orders of the Commission prior to the inspection here.   29 U.S.C. §   659(a).

Dun-Par's vice-president, Jeff Parks, testified that it is the custom in the industry for the general contractor to install the guardrails. n2 He admitted on cross-examination, however, that in cretain limited circumstances in the past, Dun-Par had installed guardrails and that the portion of the perimeter where the conveyor was located was the type of limited circumstance to which he was referring.   Parks testified that Dun-Par could not have erected guardrails because it had not allowed for their cost in accepting the [*6]   job, and, therefore had not procured the necessary materials.   He testified further that one of the first steps in constructing a floor or flat roof is to build a wooden beam bottom along the perimeter. The general contractor then has an obligation, according to Parks, to attach a guardrail to the beam bottom when it believes that this is feasible.

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n2 Mr. Parks used the term "handrails" throughout his testimony, but it is clear from the context of his testimony that he was referring to perimeter guardrails.

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Another reason for not installing guardrails, according to Parks, is that a spandrel beam was to be constructed beyond the perimeter of the second floor and the general contractor did not want to install guardrails until that beam was in place.   Parks testified, however, that the spandrel beam was to be installed by another subcontractor, and that, although it was possible to erect a spandrel beam with a guardrail in place, nine times out of ten the guardrail would have to be removed.

Dun-Par's president, John [*7]   Dunn, corroborated the testimony of Parks concerning the financial and practical aspect of installing the guardrails as well as the industry custom that the general contractor installs the guardrails. Dunn testified that the cost of the guardrails would have been approximately $4000 to $4500 per floor and that, although the material is reuseable, it was not practical for Dun-Par to install the guardrails. He did not testify, however, that Dun-Par lacked the ability to erect the guardrails. Mr. Dunn also testified that guardrails could not be erected because they would get in the way of steel being hoisted onto the building.   He testified that this is another reason why the general contractor did not install guardrails. When asked whether the steel could have been hoisted over the guardrail Dunn stated that he did not know because it was not part of his business.

Finally, although he did not observe Dun-Par's employees working near the edge of either level, the compliance officer testified that the work completed could only have been accomplished by employees working near the edge of the two levels.   Mr. Dunn testified that at least one of Dun-Par's employees worked at the perimeter [*8]   of the floor, receiving items carried from the ground to the floor by the conveyor.   Mr. Parks stated that Dun-Par's employees would sometimes leave a floor level by climbing over the side of the floor perimeter.

Dun-Par argued before Judge Riehl that: (1) the weight of authority is that section 1926.500(d)(1) does not apply to flat roofs, (2) the roof level was not complete at the time of the inspection and therefore could not be considered a floor or platform, (3) because it did not create or control the violative condition, made reasonable efforts to have the general contractor abate the hazard, and took alternative measures to protect its employees, it should not be held responsible for the violative condition (citing Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975)), (4) it was impractical and infeasible to install the guardrails and accomplish the work, (5) its employees were not exposed to a hazard, (6) the previous citations cannot be used as the basis for a repeated violation, and (7) the Secretary's characterization of the violation as serious is arbitrary, discriminatory, violative of due process and equal protection, and amounts to disparate treatment because [*9]   he has in the past classified as nonserious falls from heights that were the same as those involved here.

With respect to its contention that the general contractor is responsible for the violation Dun-Par pointed to its contract with the general contractor. Dun-Par argued that under that contract the general contractor had an express, or at least implied, obligation to provide perimeter guarding. Therefore, argued Dun-Par, it is the failure of the general contractor to carry out this responsibility that created the violation.   Moreover, Dun-Par argued that it took alternative good faith steps to protect its employees.   It argued that it had a good safety program, including classes and meetings on safety, that it had a good safety record, and that it permitted only athletic, agile employees to work on hazardous jobs.

Dun-Par's contention regarding the practicability and feasibility of erecting guardrails centered argound the nature of the work performed and the cost of providing the guardrails. Dun-Par argued that it did not include the cost in its contract bid and consequently in the contract because the general contractor provided the guardrails by industry custom.   It also [*10]   argued that to install perimeter guarding around the formwork would have impeded the progress of the work because Dun-Par's employees would have had to work around, through, and over the rails as the forms were erected.

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n3 Because the second floor level was complete at the time of inspection this argument pertains to the roof level only.

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Dun-Par also defended on the ground that its employees were not exposed to the fall hazard created by the lack of guardrails at the perimeter of the floor. It argued that its employees were not, at the time of inspection, observed working close to the perimeter.

Dun-Par also argued that the prior citations should not be used against it because in each of those cases: (1) it was the responsibility of the general contractor to supply the perimeter guarding either by "custom or contract," (2) the same arguments pertaining to the citation in issue also apply to the prior citations, and (3) the prior citations were not contested based on the advice of counsel that it would be impractical [*11]   to contest and the expense of litigation would far exceed the penalties assessed.   Dun-Par asserted that its failure to contest the citations was not intended to be an admission of violation of the Act.

The Secretary argued before Judge Riehl that the standard should apply to the roof level because the work on that level is the same as on the second floor level and Dun-Par's employees are not roofers. He argued that it would be an inconsistent application of the law if Dun-Par were required to provide perimeter guarding on the second level but not on the upper level, where the fall distance is greater, simply because Dun-Par called that level a roof. The Secretary argued further that the formwork for the roof level was a platform from which Dun-Par's employees were working.   The Secretary also argued that it was Dun-Par's responsibility to install the guardrails and that the company did not meet its burden of proving that it was economically infeasible to do so.

With regard to Dun-Par's argument that its employees were not, at the time of inspection, working near the perimeter and consequently were not exposed to the fall hazard, the Secretary pointed to the testimony of the compliance [*12]   officer, Mr. Baker.   He testified that the nature of the work performed clearly showed that Dun-Par's employees were exposed to the fall hazard.

III

Judge Riehl held that the cited standard applied to both the second floor and roof levels of the building.   He held the standard applicable to the roof level because Dun-Par's employees performed the same work on the roof level that they did on the second floor and thus were exposed to the identical hazard on both levels.   He also held that, in contrast to Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976), in which the court held section 1926.500(d)(1) inapplicable to work being performed by workers on a flat roof, the employees in the instant case were not roofers and that, unlike roofers, would expect the perimeter to be guarded.   The judge also found that the formwork for the roof level constituted a platform under the standard.

Judge Riehl held that Dun-Par had not established the multi-employer worksite defense first articulated in Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976), and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 [*13]   CCH OSHD P20,690 (No. 3694, 1976).   Moreover, he found that the facts of this case preclude the application of the Seventh Circuit's decision in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975). The judge found that Dun-Par had the sole responsibility for constructing the formwork and that its employees were exposed to a fall hazard. He found further that Dun-Par was aware that there was no perimeter protection on the second floor level.   Judge Riehl observed that the rule expressed by the Commission in Crossman Steel and Anning-Johnson is essentially that each employer is responsible for all violative conditions to which its employees have access.   However, an employer is not responsible for violative conditions which it does not create or control if the employer makes reasonable efforts to detect and abate such violations or takes other reasonable steps to protect its employees.   Applying that test to the facts here, Judge Riehl found that Dun-Par did not make any reasonable effort to have the general contractor abate the condition although it knew of the violation, nor did it take alternative steps to protect its employees, such as placing a cable around [*14]   the perimeter. He found that there was no evidence that Dun-Par alerted its employees to the danger presented by the lack of guardrails.

Judge Riehl also found that it was feasible for Dun-Par to install the guardrails after the perimeter beams were in place, and that the guardrails would not interfere with the work to be performed.   Moreover, the judge found that the fact that the general contractor installed a guardrail after the inspection indicated feasibility of compliance.   Judge Riehl found that the nature of the work accomplished near the edge of the floor and roof made it clear that Dun-Par's employees were exposed to the fall hazard created by the absence of guardrails. He found that there was a substantial probability that death or serious harm could result from a fall from either level, and that Dun-Par's supervisory personnel could have easily detected the absence of guardrails.

Judge Riehl noted that there were four prior citations against Dun-Par for failure to comply with the standard at section 1926.500(d)(1) and that they had become final orders of the Commission.   He found the violation repeated and assessed a penalty of $1600.   Review of the judge's decision [*15]   was directed by Commissioner Barnako on the issues raised by Dun-Par in its petition for discretionary review. n4

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n4 Former Commissioner Moran also directed review "for error."

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IV

On review Dun-Par reasserts the arguments it raised before the judge and also argues that the peanlty assessed by Judge Riehl is too severe.

The Secretary argues that the judge's decision should be affirmed.   Regarding the roof level the Secretary reasserts his argument that Dun-Par's employees are not roofers and that Diamond, Langer, and Central City Roofing n5 are distinguishable.

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n5 Diamond Roofing Co., supra; Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975); Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976).

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The Secretary contends that Judge Riehl [*16]   was correct in rejecting Dun-Par's defense of limited subcontractor liability.   The Secretary, however, does not entirely agree with the judge's reasoning.

The Secretary notes that both Dun-Par and the judge concentrated on whether Dun-Par took realistic measures to protect its employees such as attempting to have the general contractor abate the violation.   He argues that under Commission law this question need not be reached until the first element of the defense is a ablished.   He contends that the first element to be proved by Dun-Par is that it neither created nor controlled the cited condition.   He argues that Dun-Par has failed to meet this element in that it failed to show that it did not create the fall hazard. He further argues that the evidence shows Dun-Par created the hazard because it built the structure.

The Secretary argues that Dun-Par reasons backwards in arguing that the hazard was created by the general contractor because it did not fulfill its "duty" to erect guardrails. He notes that Dun-Par erected the floors and was the first contractor to place its employees on them.   The Secretary argues that Dun-Par thereby created the violative condition and exposed [*17]   its employees to it.   Moreover, the Secretary contends that Dun-Par failed to prove that it did not control the hazard such that it realistically could have complied with the standard.   The Secretary argues in this regard that an employer's statutory duty to protect the safety and health of its employees cannot be delegated by contract, citing Anning-Johnson, supra, 4 BNA OSHC at 1198 n. 13.   He argues further that Dun-Par had the physical capability and expertise to erect the guardrails. The Secretary thereby concludes that Dun-Par has failed to prove the first element of the defense.

Even if Dun-Par had established the first element of the defense, argues the Secretary, Dun-Par failed to prove the remaining elements of the defense.   Thus, the Secretary argues that Dun-Par did not prove either that its employees were protected by realistic measures taken as an alternative to literal compliance or that it did not have, and with the exercise of reasonable diligence could not have had, notice that the condition was hazardous. Further, the Secretary contends that there is no evidence that Dun-Par alerted its employees to the danger presented by the lack of guardrails.

Regarding [*18]   the issue of the "repeated" characterization, the Secretary contends that Dun-Par's assertions amount to an impermissible collateral attack on the Commission's orders that are ". . . not subject to review by any court or agency." 29 U.S.C. §   659(a).   Moreover, the Secretary argues that to accept Dun-Par's contention would limit the sanction for repeat violations to those employers who choose to contest citations, a result that would be contrary to the remedial purpose of the Act and contrary to Commission precedent where repeated violations have been found based on uncontested prior citations.

V

The Commission has held that section 1926.500(d)(1) does not apply to flat roofs. Central City Roofing Co., supra; White Plains Iron Works, Inc., 77 OSAHRC 205/A2, 6 BNA OSHC 1135, 1977-78 CCH OSHD P22,355 (No. 13384, 1977).   We find no reason to overrule or distinguish our precedent. n6 The argument that Central City Roofing should apply only when the employees involved are roofers is not persuasive.   The Commission in Central City Roofing agreed with the reasoning of the 5th Circuit in Diamond Roofing. The court's decision was based primarily on an interpretation [*19]   of the language of the standard.   The court held, essentially, that the term floor, as used in section 1926.500(d)(1), was not intended to include a roof. To distinguish between roofers and non-roofers would have no effect on this interpretation.   Morevoer, to hold that application of section 1926.500(d)(1) depends upon the trade of the exposed employee gives credence to the argument, advanced in Diamond Roofing, that roofers are aware of the danger and do not need protection.   This is contrary to the Commission's decisions in which we have refused to recognize experience in working under hazardous conditions as a substitute for physical protective measures.   E.g., Cornell & Co., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1919-20, 1976-77 CCH OSHD P21,532 (No. 9353, 1977).

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n6 We note that the Secretary does not urge that we overrule our holding in Central City Roofing, but argues that that decision should only by applied when the employees affected are roofers.

We disagree with our dissenting colleague's view that we have become "embroiled in abstract distinctions between the terms roof and floor." Adjudication necessarily involves an interpretation of the standard to be applied to the cited condition and the Commission has performed that adjudicatory responsibility here.

  [*20]  

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We therefore adhere to our precedent.   The citation alleging a failure to comply with the standard at section 1926.500(d)(1) as to the roof level of the building is vacated.

VI

In view of our disposition of the roof level violation, Dun-Par's remaining contentions are discussed only as they relate to the second floor level.

Dun-Par's argument that it would be too expensive for it to provide the required guardrails is without merit.   The Commission has held that an employer is not excused from complying with a standard's requirements solely because compliance is difficult or expensive.   Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830 at 1836, 1978 CCH OSHD P22,909 (No. 12523, 1978).   Dun-Par also argues that during the process of erecting forms for each level the installation of guardrails would be impractical, infeasible, and if installed would make it impossible to perform the work.   Dun-Par's argument in this regard concerns the "leading edge." However, the Secretary did not allege or contend that guardrails are required at the leading edge. Also, the second floor was complete at the [*21]   time of the inspection and therefore did not have a leading edge.

On the issue of Dun-Par's liability as a subcontractor, we cannot accept Dun-Par's argument.   Regardless of who had the contractual responsibility n7 for providing guardrails, Dun-Par itself created the hazard by participating in the erection of the opensided floor and leaving its edges unguarded.   Additionally, since Dun Par possessed the materials and skills required to build wooden forms, it surely had ability to erect the necessary guardrails. See Otis Elevator Co., 76 OSAHRC 57/E5, 4 BNA OSHC 1219, 1222, 1975-76 CCH OSHD P20,693 (No. 8468, 1976).   Accordingly, we reject Dun-Par's contention that it should not be held responsibile for the absence of guardrails.

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n7 We note that Dun-Par's reliance on the contractual responsibility of the general contractor is misplaced.   There is no record evidence to support this claim.   Furthermore, the contractual responsibility of another contractor to provide certain protection does not excuse an employer's permitting its employees to be exposed to a hazard. Central of Georgia RR Co. v. OSHRC, 576 F.2d 620 (5th Cir. 1978).

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Even if Dun-Par had not created or controlled the violative condition, its defense predicated on Grossman Steel and Anning-Johnson must fail because it did not make out the other elements of that defense.   As evidence that it made reasonable efforts to have the general contractor abate the hazard, Dun-Par cites the fact that the general contractor had stated to Dun-Par's vice president that it intended to put up guardrails after it erected the outside spandrel beam. There is no evidence, however, that Dun-Par requested that the general contractor put up perimeter guarding at an earlier stage of construction.   The general contractor merely informed Dun-Par of when it planned to put up side guarding and Dun-Par voiced no objection, even though it knew its employees would be working on the second level without perimeter protection.   Reliance on the general contractor under such circumstances does not establish the defense.

Dun-Par's argument that it made alternative good faith efforts to protect its employees in that it had a good safety program, including classes and meetings on safety, it had [*23]   a good safety record, and it permitted only athletic, agile employees to work on hazardous jobs is without merit.   These actions do not constitute specific alternative measures to protect employees from the hazard in question such as those contemplated by Grossman Steel & Aluminum Corp. and Anning-Johnson Co. As the Commission stated in Grossman Steel:

Simply because a subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees.   It can, for example, attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the area where the hazard exists if this alternative is practical, or in some instances provide an alternative means of protection against the hazard.

4 BNA OSHC at 1189. Cf. George A. Hormel and Co., 74 OSAHRC 67/A2, 2 BNA OSHC 1190, 1192-1975 CCH OSHD P18,685 (No. 1410, 1974).   None of these alternatives was employed here.   Hiring only athletic, agile employees to perform hazardous work is not a substitute for the physical protection measures called for by the standard.   Cornell & Co.,   [*24]   77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1020, 1976-1977 CCH OSHD P21,532 (No. 9353, 1977).

VII

Dun-Par was charged with a repeated violation of the Act in that four prior citations alleging a failure to comply with the standard at section 1926.500(d)(1) had become final orders of the Commission.   The test for whether a violation is repeated was set forth by the Commission in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979).   A violation is repeated ". . . if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. . . ." Id. at 7 BNA OSHC at 1063.

Substantial similarity must be established by the Secretary.   He may do so by showing that the prior and present violations are for violation of the same specific standard.   An employer may, however, rebut the Secretary's proof by showing that the prior violation, although alleging a violation of the same standard, was cited under dissimilar circumstances.

Each of the prior citations at issue alleged a failure to comply with exactly the same standard -- section 1926.500(d)(1).   The first prior citation,   [*25]   dated April 19, 1974, alleged a violation with respect to the roof deck of a building.   The second, dated April 29, 1974, alleged a violation with respect to the fourth floor of a building.   The third prior citation, dated March 28, 1975, alleged a violation as to the 1st, 2nd, 3rd, and 4th floors of a building.   The fourth, dated July 21, 1975, alleged a failure to comply with the standard on the roof level of a building.

We find that the previous citations alleging violations of the Act for failure to comply with the standard at section 1926.500(d)(1) with respect to a roof level are substantially dissimilar from the violation found here, which occurred on a non-roof level. n8 We find, however, that the citations dated April 29, 1974 and March 28, 1975, to the extent that they allege a failure to comply with the standard on levels other than a roof, meet the test enunciated above. n9 We conclude, therefore, that the record establishes two prior citations for substantially similar violations of the Act and that those citations have become final orders of the Commission.

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n8 Chairman Cleary does not agree.   Because he finds that the standard applies to the roof level, Chairman Cleary would find all of the previous citations substantially similar to the one at issue.

n9 Commissioner Barnako would not presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise.   Potlatch Corp., supra (concurring and dissenting opinion).   Instead he would look to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its workplace the condition alleged to constitute the repeated violation.   Where such notice is not apparent from the face of the citation, he would require the Secretary to prove substantial similarity.   Where such a showing has been made, he would permit an employer, by way of a fense, to show that it took good faith steps after the entry of a final order to prevent the recurrence of a substantially similar violation.

Applying these principles here, Commissioner Barnako finds that the past and present violations of the standard are substantially similar. One of the previous citations and the citation at issue are identical in that both allege failure to guard the open sides of floors in the manner prescribed by the standard.   Both citations address a single, specific hazard that exists in all situations where open-sided floors are not guarded, and both require an identical means of abatement.   Thus, he would conclude that the instant violation of this standard is substantially similar to the prior violation and that Dun-Par therefore was on notice by the prior citation that its safety precautions with respect to the open sides of the floor were inadequate.

Moreover, Dun-Par offered no evidence that, after the entry of the prior final order, it had taken affirmative steps to ensure that a similar violation did not occur in the future.   However, since this case was tried prior to the issuance of Potlatch, supra, Commissioner Barnako would afford Dun-Par an opportunity to present evidence as to this defense and therefore would remand to the judge for a hearing on the repeated issue.   See Triple "A" South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979) (concurring and dissenting opinion).   Stearns-Roger, Inc., 79 OSAHRC 94/A2    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979) (concurring opinion).

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We agree with the reasoning of the Secretary with respect to Dun-Par's defense.   Dun-Par's argument that a repeated violation should not be predicated on prior uncontested citations cannot prevail.   It is well established that repeated violations are based upon prior citations which have become final orders of the Commission.   George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD P21,774 (No. 13559, 1977), aff'd, 582 F.2d 834 (4th Cir. 1978). 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 its opportunity to test the soundness of the prior citations when it elected not to contest them.   It cannot now contend they were erroneous after refusing to timely challenge them.

We conclude, therefore, that the violation of the Act for failure to comply with [*27]   the standard at section 1926.500(d)(1) on the second floor level is repeated. n10

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n10 This case was tried and decided prior to our decision in Potlatch. Usually when there has been a significant intervening change in law between the hearing and our decision on review in a case, we will offer the affected party an opportunity to present additional evidence relevant to the newly established legal test or defense.   See, e.g. Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).   Chairman Cleary and Commissioner Cottine note, however, that of the two previous citations that have become final orders and are being used as a predicate for the repeat violation, one was, in part, for failure to guard the open sides of a floor. The other was for failure to protect the perimeter of a floor with a standard guardrail in that the guardrail was not equipped with an intermediate rail.   Both citations charged a violation of §   1926.500(d)(1).   Under these circumstances, Chairman Cleary and Commissioner Cottine conclude that Dun-Par could not offer evidence rebutting the Secretary's showing of substantial similarity, and that the defense in this case would therefore not have been tried and differently had Potlatch been issued before the hearing.   Therefore, they find that Dun-Par need not be offered another opportunity to litigate the "repeat" issue.   See FMC Corportation, 79 OSAHRC 41/D11, 7 BNA OSHC 1419 at 1422 n.8, 1979 CCH OSHD P23,631 (No. 12311, 1979).

Commissioner Barnako, however, would remand to enable Dun-Par to introduce evidence pertaining to the defense he enunciated in his separate opinion in Potlatch. Triple "A" South, supra. See n. 9 supra.

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VIII

We also reject Dun-Par's reasons for contending that the penalty is too severe.   Judge Riehl's finding that a fall from the second floor level could result in death or serious bodily injury and that Dun-Par knew or should have known of these conditions is supported by the record.   Dun-Par's argument that the Secretary has classified as nonserious falls from heights that were the same as those here and has therefore deprived Dun-Par of equal treatment is rejected.   The Commission's duty is to decide the case before it and not to rule on the correctness of the Secretary's actions in other cases.   Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1236, 1978 CCH OSHD P22,889 (No. 14484, 1977).   Nevertheless, re-evaluation of the penalty is necessary because the alleged violation at the roof level has been vacated and two prior citations involve some dissimilar circumstances.

In assessing the gravity of the violation was note that the violation is serious.   In examining Dun-Par's past history, we note that it has received four previous citations, two for substantially similar [*29]   violations.   We find that Dun-Par has exhibited some good faith by having a safety program that included meetings and instruction on safety and by having the general contractor abate the hazard after the citation was issued.   On balance, however, we find that Dun-Par's conduct showed disregard for the safety of its employees.   It knew of the standard's requirements, yet failed to take any precautions to protect its employees from the hazard it created.   Furthermore, it repeatedly violated the standard. n11 Finally, there is no evidence that Dun-Par is entitled to credit as a small employer.   We conclude, therefore, that a penalty of $800 is appropriate.

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n11 As stated in note 9, supra, Commissioner Barnako would permit Dun-Par a further opportunity to present evidence on the issue of whether the violation is properly classified as repeated. However, Commissioner Barnako agrees that a penalty of $800 is appropriate regardless of whether the violation is found to be repeated. The violation is a serious one, and Dun-Par has a history of previous violations of the Act.   Moreover, Dun-Par showed a disregard for the safety of its employees by failing to protect them against a condition that it knew to be in noncompliance with the standard.   Thus, an $800 penalty is appropriate when the gravity of the violation is considered along with Dun-Par's good faith and prior history.

  [*30]  

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Accordingly, Judge Riehl's finding of a repeat violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.500(d)(1) as to the second floor level is affirmed, his finding of a repeat violation as to the roof level is vacated, and a penalty of $800 is assessed.  

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Chairman, Concurring in part and Dissenting in part:

I concur with the majority opinion in this case which would find a violation of 29 C.F.R. §   1926.500(d)(1) on the second floor of the building under construction for the reasons assigned by the majority.   However, unlike the majority, I would also find a violation of the same standard in the construction of the level which would ultimately become the roof on the structure.   The facts of the case are that the same contractor's employees were working at various times on both levels of a two story school house under construction.   On both levels it was necessary for employees to be near the edge of the structure on which they were working, and the hazard to be perceived in both instances was the danger of falling.   At the first level,   [*31]   the majority would find a violation, but on the second, under idential circumstances, they would not.   Their conclusion is consistent with case law which concludes that because the second level in question would ultimately bear the designation of a roof, there is no coverage under this standard.

My concern is not the designation of the level as it will ultimately be when the project is completed, but the nature of the structure as it existed at the time of the inspection, and the hazard to be perceived at the time of the inspection. In both instances it is a working level supporting employees while engaged in their work and from which they were in some danger of falling.   I could distinguish this case, as the judge did, from Diamond Roofing Co., supra, by calling attention to the fact that these are not roofers. However, I do not believe a roofer becomes immunized from the danger of falling because of an ostensibly greater experience in working without guardrails. If this were true any employee consistently unprotected against hazards could be found less susceptible to the danger in question.   An equation derived from this would seem to be that the more an employee is   [*32]   exposed to a danger of injury or illness, the less protection is required.   I think this is fallacious reasoning.   Accordingly, I adhere to the view expressed in my dissent in Central City Roofing, 76 OSAHRC 61/A2, 4 BNA, OSHC 1287, 1976-77 CCH OSHD P20,762 (No. 8173, 1976) that a roof is a working surface during the construction phases and that the standard at section 1926.500(d)(1) is applicable in this situation.   That is not to say I would not accept some other form of protection which is also adequate.   But this case is a graphic illustration of the folly of becoming embroiled in an abstract distinction between the terms roof and floor. The practical aspects of the situation are that the same employees are protected by the standard while working on one level, but upon ascending to the next higher level, and doing exactly the same thing they are not.   If ever there were a distinction without a difference this is the case.

Because I would find a repeat violation as to the roof level as well as the second floor, I find the gravity of the violation considerably higher than does the majority and, therefore, would assess a [*33]   penalty of $1600.