Docket No. 494

ANGEL CONSTRUCTION CO., INC.

OSHRC Docket No. 494

Occupational Safety and Health Review Commission

May 6, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On September 25, 1972, Judge James D. Burroughs issued his decision and order in this case. In that decision, the Judge found eight non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as "the Act"), vacated penalties on three of these items, and dismissed two additional alleged non-serious violations.

Review by the Commission of that decision was directed by former Commissioner Alan F. Burch on October 25, 1972, pursuant to section 12(j) of the Act. The issue expressly directed for review was the appropriateness of the vacation of the three penalties. This discussion is limited to this issue and others briefed by the parties in response to the invitation of the Commission.

The Commission has reviewed the entire record. Judge Burroughs' decision and order is adopted insofar as it is consistent with this determination.

At the outset, we must answer two jurisdictional contentions. First, respondent argues that the direction for review is untimely, having been issued 34 days after the date [*2] appearing on the Judge's decision. Therefore, respondent contends that the Judge's decision had already become a final order of the Commission by virtue of section 12(j) of the Act. The Commission, in Gurney Industries, Inc., No. 722 (October 17, 1973), held that the critical date is that date on which the decision is received by the Commission. This is the date of the Judge's "report" within the meaning of section 12(j). Here, Judge Burroughs' decision and order was received by the Commission on September 25, 1972. Accordingly, the direction for review was timely issued on October 25, 1972.

The second jurisdictional question concerns the argument of the Secretary of Labor that the Judge did not have the authority to modify or vacate the proposed penalties because the parties had stipulated as to their reasonableness. We do not agree. The Commission has broad discretion in assessing penalties in accordance with the statutory mandate of section 17(j). This discretion is directed to application of the criteria set out in section 17(j) to the facts of the case. Determination of an appropriate penalty is a legal conclusion resulting from this application of section [*3] 17(j) criteria to the relevant facts. Although the proceedings may be simplified by stipulation of the parties as to relevant facts, it is well settled that a stipulation is not binding with respect to any legal conclusion to be drawn therefrom, e.g., Sanford's Estate v. C.I.R., 308 U.S. 39 (1939). We conclude that the legal issue of the appropriate penalties for the three items set out below is properly before us.

Respondent was the prime contractor at a multiple building construction site. The three standards, by item number, and the violative conditions for which the penalties are at issue are described as follows:

(1) 29 CFR § 1926.25(a) and (b). Considerable scrap and debris were present on three floors of one building. The material littering the ground level resulted from the recent removal of concrete forms. The debris on the other two levels was not cleared to provide passageways free of tripping hazards. A penalty of $50 was proposed.

(2) 29 CFR § 1926.450(a)(2), (6), and (10). Three ladders had split rungs or protruding nails. A fourth was standing without the base being properly secured. The proposed penalty was $50.

(6) 29 CFR § 1926.500(e)(1). [*4] Each of two buildings contained two or three sets of stairways. The stairways were enclosed on one side. Two sets had no railings. Two other sets had improperly secured guardrails or missing handrails. A $35 penalty was proposed for this violation.

The Judge vacated each of these penalties, citing J.E. Chilton Millwork and Lumber Co., Inc., No. 123 (May 15, 1972) and General Meat Co., Inc., No. 250 (June 20, 1972) for the rationale that minor monetary penalties do little to effectuate the purpose of the Act.

Subsequent to Chilton and General Meat Co., the Commission emphasized in Hydroswift Corporation, No. 591 (October 27, 1972), that the Chilton and General Meat Co. policy hinges upon the gravity of the violation being low. Here, the Judge, without comment, apparently concluded that the gravity of these three items was of a sufficiently low level as to warrant vacation of the proposed penalties.

The violations will be examined individually in light of the criteria of section 17(j) of the Act. Consideration of the factors to be considered in assessing gravity, as presented in National Realty and Constr. Co., Inc., No. 85 (September 6, 1972), [*5] suggests that items (1) and (2) had a low level of gravity. Although respondent employed approximately 25 to 50 persons on the worksite, exposure, actual and potential, of these employees is limited as to the first two items. The violation alleged as item (1) resulted solely from conditions in one of the buildings and was limited primarily to two floors. The area of the worst debris, the ground level, was offlimits to all but cleanup personnel. This debris resulted from a recent "wreckout" or tearing down, of concrete forms and removal of supports. Respondent had already assigned several employees full time to the cleanup job.

Although we may infer exposure with respect to the four ladders violative of the standard in item (2), no evidence was introduced to indicate their recent use. Moreover, respondent immediately ordered the destruction of the defective ladders.

We find the gravity of item (6) to be somewhat higher. Railings were missing or improper on four to six stairways. Each stairway consisted of several flights of about nine risers each. There was no evidence of limited use or access. It is reasonable to infer that employees using the stairs are commonly [*6] encumbered with materials or tools. Under these circumstances, the probability of a fall, although relatively low, is not insignificant.

Evidence of respondent's good faith is found in the immediate destruction of the ladders. Testimony also indicated that the housekeeping conditions were not characteristic of respondent's workplace and indeed, respondent was subsequently commended for housekeeping during a subsequent inspection.

The parties stipulated that respondent had no history of previous violations and that its net worth for the prior year was $519,000. The Secretary gave respondent maximum credit for size and history in calculating the proposed penalties.

On consideration of the foregoing factors, with emphasis on the factor of gravity, a penalty of $35, as proposed, for the violation of the Act by failure to comply with the standard set out in item (6) is assessed. No penalty is assessed for the violations by failure to comply with the standards set out in items (1) and (2).

Therefore, it is ORDERED that the Judge's decision and order be modified in accordance herewith.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in [*7] part: I only agree with so much of this opinion as affirms Judge Burroughs. That should have happened in 1972.

After stating that "There was no evidence of limited use of access" this opinion proceeds to infer facts which prompt the opinion writers, apparently because of the drastic gravity implicit in the situation which they felt the Judge ignored, to assess the enormous penalty of $35.00. n1

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n1 Although judicial or official notice cannot be taken of the decline in the value of the dollar since 1972, I am constrained to point out that, stated in 1972 dollars, this amounts to a penalty of approximately $30.92.

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In my judgment this improperly assumes that a respondent is guilty until proven innocent. It is the complainant's duty to prove access, not the respondent's to disprove it. 29 C.F.R. § 2200.34.

The impressive result of this tortured reasoning is that after 19 months the Judge's decision has been adopted but a $35.00 penalty has been added. Although I have carefully read all 5 pages of this opinion, [*8] I fail to see how the result is worth the delay in achieving it.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter referred to as the Act), to review a Citation issued by the Secretary of Labor (hereinafter referred to as the complainant) pursuant to Section 9(a) of the Act, and a proposed assessment of penalties in the amount of $555.00 upon such alleged violations pursuant to Section 10(a) of the Act.

A Citation was issued to the respondent on January 24, 1972, alleging that it had committed 10 non-serious violations of safety standards promulgated pursuant to Section 6(a) of the Act. The Citation alleged violations and proposed penalties as indicated:

Standard or Regulation	Amount of Penalty
Allegedly violated	Proposed
1. 29 CFR 1926.25(a), (b)	$50.00
2. 29 CFR 1926.450(a)(2), (6), (10)	50.00
3. 29 CFR 1926.451(a)(4), (12)	105.00
4. 29 CFR 1926.152(a)(1)	35.00
5. 29 CFR 1926.152(d)(2)	None
6. 29 CFR 1926.500(e)(1)	35.00
7. 29 CFR 1926.500(b)(8)	140.00
8. 29 CFR 1926.552(b)(1)(i), (2), (4)	70.00
9. 29 CFR 1926.100(a), (b)	None
10. 29 CFR 1926.552(c)(5), (7)	70.00

[*9]

Respondent timely notified the complainant that it proposed to contest the alleged violations set forth in the Citation and the proposed assessment of penalties. The complaint was filed by the complainant on February 16, 1972. The respondent conceded in its answer that it was properly cited for violations of 29 CFR 1926.152(a)(1) and 29 CFR 1926.152(d)(2). It also acknowledged at the hearing that these two violations were not contested (Tr. 33). During the course of the hearing, respondent further conceded a violation 29 CFR 1926.450(a)(2), (6) and (10) (Tr. 146). The respondent acknowledged at the hearing that it did not contest the reasonableness of the penalties in the event violations are determined against it (Tr. 35-36).

The complainant advised the Occupational Safety and Health Review Commission of the notification of contest by respondent. The Commission assigned the case to this Judge for hearing pursuant to the provisions of Section 10(c) of the Act. A hearing was held in Memphis, Tennessee on May 11, 1972. No additional parties desired to intervene in the proceeding.

ISSUES

A determination must be made as to whether there were non-serious violations [*10] of the following standards:

1. 29 CFR 1926.25(a), (b)

2. 29 CFR 1926.451(a)(4), (12)

3. 29 CFR 1926.500(e)(1)

4. 29 CFR 1926.500(b)(8)

5. 29 CFR 1926.552(b)(1)(i), (2), (4)

6. 29 CFR 1926.100(a), (b)

7. 29 CFR 1926.552(c)(5), (7)

In addition to resolving what violations, if any, occurred, a determination must be made as to the appropriate penalties to be asserted for any violations.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving this proceeding.

Respondent, Angel Construction Company, Inc., is a Tennessee Corporation with an office at 505 S. Perkins, Memphis, Tennessee. It is engaged in the business of commercial construction. At all times pertinent to this proceeding respondent maintained a work site and place of employment at 2600 Nonconnah Blvd. Memphis, Tennessee (Complaint and Answer). Respondent was the prime contractor in the construction of an office building complex at that address (Tr. 17). The office complex was divided up into different areas. The center of the complex was a one level hexagon shaped building. Buildings [*11] "A" and "C", n1 which are three story buildings, connect up to the center of the complex (Tr. 17-18).

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n1 The reference to "D" building in the Citation is erroneous. The compliance officer actually viewed "C" building and inadvertently referred to it as "D" building in the Citation. (Tr. 17, 25-26) Buildings "B" and "D" were not involved in the issues for determination (Tr. 131).

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Respondent, in the course of its business operations, regularly orders and receives building materials and goods produced and furnished by suppliers outside the State of Tennessee. Its employees regularly handle or otherwise work on goods which have been transmitted, shipped, delivered and sold in commerce to points outside the State of Tennessee. Respondent regularly enters into and performs contracts outside the State of Tennessee (Complaint and Answer).

On January 13, 1972 complainant, through two of his authorized compliance officers, conducted an inspection of the 2600 Nonconnah Blvd. site (Tr. 12-13). Upon arrival at the [*12] worksite, the compliance officers identified themselves to Eddie Koker, respondents job site superintendent, and explained the inspection procedure (Tr. 13). Six or seven subcontractors were also represented at the opening conference. The compliance officers were accompanied on the inspection by Koker, James Stanford, who was the union representative, and a representative of one of the subcontractors (Tr. 14, 16). Representatives of the other sub-contractors participated in the inspection wherever their operations were involved (Tr. 16).

As a result of the inspection on January 13, 1972, a Citation was issued to respondent on January 24, 1972. The Citation alleged a violation of 10 safety standards (Citation). The alleged violations resulted from visual observations made by the compliance officers during their inspection (Record as a whole).

1. Alleged Violation of 29 CFR 1926.25(a) and (b).

Scattered throughout the work area of building "C" were boards, nails, wire, concrete forms, scrap, wood-work, broken ladders and miscellaneous debris (Tr. 16-17). The ground level was covered and, more particularly, the second level was so covered with debris that there were [*13] no passageways unless one carefully selected his way by stepping over debris (Tr. 19-20). The debris was not piled or stacked in any pattern but was simply scattered throughout the area (Tr. 20). Ground level debris consisted primarily of concrete forms, wire used in concrete work, reinforcing bars and short pieces of plank (Tr. 53). The ground level debris resulted from a wreckout (tearing down of forms and removal of supports) of a pan job on the ceiling which occurred a couple of days prior to inspection (Tr. 36, 38, 53, 95, 101, 122). No employees of respondent, except the clean-up crew, were allowed to go into the wrecked-out area of building "C" until it was cleaned up (Tr. 145, 158). The debris on the other levels of building "C" was different. It consisted primarily of working materials, such as electrical materials and planks. The second and third levels contained none of the tear down material from the wreckout (Tr. 53).

Respondent's usual procedure in disposing of debris was to sweep it up and haul it off in two trucks owned by it (Tr. 91-92). The carpenter helpers were instructed to clean up around their area (Tr. 120-121). The trucks came by the site four or [*14] five times a week. Each truck had a driver, and laborers were assigned by the superintendent to assist the driver in loading the debris (Tr. 92, 109-110). Where respondent believed debris caused a safety hazard it added additional persons to the clean-up operation (Tr. 106). Whenever the truck was not available to haul the debris away it was usually stacked in a pile until the truck had an opportunity to pick it up (Tr. 132) The truck had been at the job site the day prior to the inspection (Tr. 133).

2. Alleged violation of 29 CFR 1926.451(a)(4) and (12)

A scaffold had been constructed inside "A" building near the entrance to the West end of the building. The scaffold was approximately 8' in height. It contained no guardrails or toeboards. In addition, the boards on the scaffold did not overlap a minimum of twelve inches. The boards were not secured in any manner (Tr. 60-61, 77). No one was using the scaffold at the time of the inspection (Tr. 77). The compliance officer did not inquire if respondent's employees used the scaffold (Tr. 78). The scaffold did not belong to respondent (Tr. 89, 103, 115, 146, 149, 159). Its employees did not use the scaffold (Tr. [*15] 147, 149).

3. Alleged Violation of 29 CFR 1926.500(e)(1)

Building "C" had three sets of stairways leading from the ground level to the second and third levels. One set of stairs was located on the outside of the building and the remaining two sets were inside the building (Tr. 18, 22-23). One of the inside set of stairs was located on the West side of the building and the remaining inside set was located east of the elevator shaft, which was in the center (Tr. 23, 42). The stairs consisted of four flights of risers extending approximately 24 feet from the ground level to the third level of the building (Tr. 18, 42). There were approximately 9 risers in each flight of stairs (Tr. 24, 62). The width of the steps was approximately 47 1/2 or 48 inches (Tr. 23). One side of the inside stairways was enclosed (Tr. 43). One of the inside stairways had an outside handrail consisting of a piece of wood that ran from ground level to the third level. There was no mid or intermediate rail and no handrail on the inside of the stairs (Tr. 23, 43). The other inside stairway was without any kind of handrail (Tr. 43).

Buildings "A" and "C" are almost identical (Tr. 18, 63). The stairway [*16] systems are the same (Tr. 63). There were no handrails on the inside stairway in the West end of building "A" (Tr. 61-62). The inside stairway on the East end contained a guardrail but it was not properly secured. One end of the guardrail had been knocked off and had not been replaced (Tr. 61). The guardrail in the East end contained a mid or intermediate rail (Tr. 62).

4. Alleged Violation of 29 CFR 1926.500(b)(8)

The opening for the elevator in "C" building was in the center of the building. The opening extended approximately 6 or 7 feet below ground level (Tr. 24). The shaft had a permanent concrete wall on one side so that only three sides needed protection (Tr. 25). The shaft was approximately 8' X 9' or 8' X 10' (Tr. 26). The ground and second levels were completely open and contained no kind of barrier (Tr. 27, 52, 54). The third level had a wood railing barricade approximately 42 inches high enclosing the three sides of the elevator shaft (Tr. 25, 52-54). The barricade on the third level contained no mid or intermediate rail or toeboard (Tr. 25, 54).

Respondent was in the process of commencing masonry work in the elevator shaft of Building "C" (Tr. [*17] 150). The guard rail had been removed on the second level for purposes of completing masonry work in the shaft (Tr. 151). At the time of the inspection, no one was working in the shaft (Tr. 27, 45).

The opening for the elevator in "A" building was in the center of the building and was in substantially the same arrangement as that in Building "C" (Tr. 63). All the walls were up around the elevator shaft in Building A. Only the elevator door openings were not enclosed (Tr. 63, 153). There was no rail or barricade at the second level (Tr. 64). Timber had been placed across the opening on the second level but, at the time of inspection, it had been removed (Tr. 153). There was a top rail in front of the elevator on the third level. It contained no mid or intermediate rail or toeboard (Tr. 64).

5. Alleged Violation of 29 CFR 1926.552(b)(1)(i)(2) and (4)

The material or buck hoist being used by respondent on the outside of "A" building had no overhead protection for the operator. No operating rules for the hoist had been posted (Tr. 64-66, 78). The statement "No Riders Allowed" was also not posted on the car frame or in a conspicuous location (Tr. 82). The hoist was [*18] located on the North side of "A" Building. It ran up the outside of the building and was lifted by a cable (Tr. 65, 78). There were openings in the exterior wall of the building at the various levels through which materials were unloaded (Tr. 65-66). The access to the hoist at the second and third levels contained no gates or guard barriers of any kind (Tr. 64, 66).

An employee was assigned to full time duty of operating the hoist (79-80, 98, 101, 104). The hoist was for transporting materials. Respondent's employees had absolute instructions to stay off the hoist. Prior to moving the hoist, the operator undertook to insure that everyone was clear of it and that no one attempted to ride it (Tr. 98, 101, 104). The operator did not ride the hoist. It was controlled from the ground (Tr. 100).

6. Alleged Violation of 29 CFR 1926.100(a) and (b)

Respondent concedes that two of its employees were wearing bump hats which were not in accordance with 29 CFR 1926.100(a) and (b) (Tr. 67). The bump hats are lighter than the required protective helmets (Tr. 154). The two employees wearing the bump hats were immediately instructed to obtain proper helmets (Tr. 80-81). Instructions [*19] had previously been given to all employees to wear the proper helmets (Tr. 154). Only a few of respondent's employees ever attempted to wear bump hats. Respondent discouraged such conduct whenever it noticed they were being worn (Tr. 108). The remaining employees of respondent working at the site, which totaled approximately 13, were wearing the proper helmet (Tr. 154).

The respondent had taken action to see that its employees were supplied with the requisite helmets. Each employee generally purchased his own helmet. The union agreement specified that each employee would furnish his own equipment (Tr. 107, 113). The respondent made the helmets available at cost. In the event an employee did not have the money, the helmets were made available on whatever terms were necessary (Tr. 81, 107). Proper protective helmets were also made available at the worksite to insure that employees wore them (Tr. 108).

7. Alleged violation of 29 CFR 1926.552(c)(5) and (7)

An elevator was being installed in the shaft in building "A" (Tr. 68, 71, 74). The floor of the elevator was being used as a platform to work from in placing the controls inside (Tr. 70, 74). Two men were working [*20] inside the elevator shaft at the third level on the base of the elevator without any personal protection to prevent them from falling into the shaft. The bottom of the shaft was approximately 30 feet below (Tr. 68-69, 75, 81-82). There was approximately a two foot opening around the elevator that one could fall through. There was no framework around the elevator and the floor or base of the elevator had no guard rails or anything to enclose it (Tr. 69-70). There was also no top or any type of overhead protection provided for the personnel on the elevator base (Tr. 70-71).

The Dover Elevator Company was the elevator subcontractor. The two men working on the elevator were employees of the subcontractor (Tr. 104, 155). Respondent's employees were not working on the elevator and none of its employees ever rode it (Tr. 90-91, 104, 155). The compliance officer did not inquire as to who was installing the elevator (Tr. 72, 82).

LAW AND OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. There are seven alleged violations remaining to be resolved in this proceeding.

1. [*21] Alleged violation of 29 CFR 1926.25(a) and (b).

Section 1926.25(a) and (b) of 29 CFR provides as follows:

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

(b) Combustible scrap and debris shall be removed at regular intervals during the course of construction. Safe means shall be provided to facilitate such removal.

The complainant alleged that the respondent maintained poor housekeeping throughout the worksite. It is contended that the debris consisted of boards, materials, loose wire, concrete scrap forms, broken ladders, reinforcing bars and scrap metal.

The Citation indicates that poor housekeeping existed throughout the worksite. This would imply that the condition existed in both buildings "A" and "C." However, the evidence of the complainant was directed toward the condition as it existed in Building "C." No evidence was introduced into the record by the complainant to show the state of debris which existed in building "A." The respondent did introduce a considerable amount of testimony [*22] through its job superintendent, Eddie Koker, as to the condition of building "A." He testified that building "A" was in a clean state and that in his opinion there was nothing existing in the building which was dangerous to employees (Tr. 120). He indicated that materials were stacked for use in building "A" and that on the North end of the building there was a pile of debris which had been cleaned from the floor (Tr. 122, 132, 135). There were no concrete forms in building "A." (Tr. 126). Any scraps in building "A" were out of the working area or passageway where employees were traveling (Tr. 123-125). Accordingly, any violation of 29 CFR 1926.25(a) and (b) which is determined must be sustained on the condition as it existed in building "C."

There is no dispute that the housekeeping in building "C" was very poor. The compliance officer's testimony in this regard is supported by testimony of James Stanford, one of respondent's carpenters, and the respondent's job superintendent, Eddie Koker. They both admitted that the building was quite dirty with debris (Tr. 92-93, 137). Stanford testified that building "C" was dirtier than usual and that it could have been cleaned [*23] a little better (Tr. 93-94).

The respondent introduced evidence to show that the debris resulted from a wreckout of a pan job on the ceiling which had occurred a couple of days prior to the inspection (Tr. 36, 38, 53, 95, 101, 122). The evidence, however, does not indicate that the wreckout was responsible for the debris on the second and third levels. The compliance officer admitted that the debris on the second and third levels. The compliance officer admitted that the debris on the ground level apparently resulted from a wreckout (Tr. 36), but testified that the debris on the second and third levels contained none of the tear down materials from the wreckout (Tr. 53). The debris on the second and third levels presented a different type of housekeeping problem (Tr. 38).

The compliance officer's testimony is convincingly clear that the second level was so covered with debris that there was no passageways unless one carefully selected his path by stepping over the debris (Tr. 19-20). The testimony of respondent's witnesses does not contradict the compliance officer's observation. Accordingly, it is concluded that there was a violation of 29 CFR 1926.25(a) and (b). [*24]

2. Alleged violation 29 CFR 1926.451(a)(4) and (12)

Section 1926.451(a)(4) and (12) provides as follows: (a) General requirements.

(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than six feet above the ground or floor, except needle beam scaffolds and floats. Scaffolds 4 feet to 6 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

(12) All planking or platforms shall be overlapped (minimum 12 inches), or secured from movement.

Complainant alleged that a scaffold was erected without a guardrail or toeboard and that the planks were not secured and did not overlap a minimum of 12 inches.

The evidence is clear that the scaffold in question does not meet the requirements of 29 CFR 1926.451 (a)(4) and (12). However, the complainant has not proved that respondent constructed the scaffold or that any of its employees used it. The compliance officer testified that no one was working on the scaffold at the time of his inspection (Tr. 77). He further testified that he did not inquire if respondent's employees [*25] used the scaffold (Tr. 78), since Koker indicated that the scaffold belonged to the respondent (Tr. 77).

The evidence is clear that there was a misunderstanding between the compliance officer and Koker at the time the question as to who owned the scaffold was asked. The most reasonable assumption is that Koker indicated the scaffold to be respondent's in a broad sense since respondent was the prime contractor. The testimony of Sidney Levine, respondent's general manager, Koker, and Stanford are quite clear that the scaffolding was not owned by the respondent (Tr. 89, 103, 115, 146, 149, 159). The evidence is also clear that respondent's employees did not use the scaffold in question (Tr. 147, 149). No one was using the scaffold at the time of the inspection (Tr. 77) and the compliance officer did not know if respondent's employees used the scaffold (Tr. 78).

The inescapable conclusion of the evidence of record is that the evidence does not support the allegation that the violation was that of the respondent. The Act creates a duty between the employer and his employees. There has been no showing that the respondent created the condition or exposed any of its employees [*26] to this violation. Complainant has failed to carry his burden on this issue. Accordingly, there has been no violation of 29 CFR 1926.451(a)(4) and (12).

3. Alleged Violation of 29 CFR 1926.500(e)(1).

Section 1926.500(e)(1) of 29 CFR provides as follows:

(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, the width of the stair to be measured clear of all obstructions except handrails:

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side;

The complainant alleged that the stairways leading to the upper levels in "A" and "C" buildings n2 did not have standard railings or handrailings.

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n2 The Citation referred to "D" building. Wherever "C" is used herein the original reference was to "D". See note 1 supra.

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The stairways in buildings "A" and "C" had approximately 9 risers in each flight [*27] of stairs. The width of the steps was approximately 47 1/2 to 48 inches (Tr. 23, 62). Each of the buildings contained two sets of stairways inside the building. The stairways were enclosed on one side. One of the stairways in building "C" had no kind of railings (Tr. 43) and there was no type of railing on the stairway in the West end of Building "A" (Tr. 61-62). The other stairway in building "C" had an improper handrail. It contained no mid or intermediate rail and no railing on the inside of the stairway (Tr. 23, 43). The stairway on the East end of building "A" contained a guardrail which was improperly secured.

The testimony of the compliance officer is uncontroverted. His testimony is also supported by Stanford who testified that he put handrails on the stairs after the inspection (Tr. 86). Accordingly, the evidence is convincingly clear that there was a violation of 29 CFR 1926.500(e)(1).

4. Alleged Violation of 29 CFR 1926.500(b)(8)

Section 1926.500(b)(8) of 29 CFR provides as follows:

(8) Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole [*28] cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing.

The complainant alleged that the 8' X 10' floor opening for the elevator on the second and third levels of buildings "A" and "C" were not barricaded or covered and that no toeboards were provided.

The evidence conclusively supports the determination that respondent violated 29 CFR 1926.500(b)(8). Building "C" had a permanent concrete wall on one side and was open on the other three sides. The ground and second levels to the elevator shaft of building "C" were completely open and contained no kind of barrier (Tr. 27, 62). The opening at ground level extended approximately 6 or 7 feet below ground level (Tr. 24). There was a barricade on the third level of building "C" which consisted of a wood railing approximately 42 inches high. It contained no mid or intermediate rail or toeboard (Tr. 25, 54).

All of the walls were up around the elevator shaft in building "A." Only the elevator door openings were not enclosed. The elevator opening in building "A" contained no rail or barricade at [*29] the second level (Tr. 64). There was a top rail in front of the elevator on the third level, but it contained no mid or intermediate rail or toeboard (Tr. 64). The observations of the compliance officers were buttressed by the testimony of Stanford who indicated that some of the elevator openings were unprotected (Tr. 86).

Respondent offered evidence to show that the handrail on the second level of building "C" had been removed for purposes of completing masonry work in the elevator shaft (Tr. 151). It contends that it is impossible to do the masonry work in the shaft when the required railings have been placed around the opening. In view of the numerous other violations of 29 CFR 1926.500(b)(8) which are supported by the evidence, it is not necessary to resolve this question.

5. Alleged Violations of 29 CFR 1926.552(b)(1)(i), (2), and (4).

Section 1926.552(b)(1)(i), (2), and (4) of 29 CFR provides as follows:

(b) Material hoists. (1)(i) Operating rules shall be established and posted at the operator's station of the hoist. Such rule shall include signal system and allowable line speed for various loads. Rules and notices shall be posted on the car frame or crosshead [*30] in a conspicuous location, including the statement "No Riders Allowed."

(2) All entrances of the hoistways shall be protected by substantial gates or bars which shall guard the full width of the landing entrance. All hoistway entrance bars and gates shall be painted with diagonal contrasting colors, such as black and yellow stripes.

(4) The operator's station of a hoisting machine shall be provided with overhead protection equivalent to tight planking not less than two inches thick. The support for the overhead protection shall be of equal strength.

The complainant alleged that the material hoist did not have operating rules posted, that there were no gates or bars provided at stations and that the operators did not have adequate overhead protection.

The evidence is clear that there was a violation of 29 CFR 1926.552(b)(1)(i), (2) and (4). The compliance officer's testimony is undisputed in regard to there being no operating rules posted and that the unloading area for the various levels for the hoist was not protected by gates or barriers and that the operator had no overhead protection (Tr. 64-66, 78). Respondent does not seek to persuade that it was in full compliance [*31] with 29 CFR 1926.552(b)(1)(i), (2) and (4). It contends that its employees were not exposed to any unsafe working conditions as a result of the hoist. Emphasis is attached to the fact that an employee was assigned the full time duty of operating the hoist and that employees had specific instructions to stay off of the hoist (Tr. 79-80, 98, 101, 104).

The fact that employees were instructed to stay off the hoist does not minimize the violation. Indeed, respondent would have been in violation of 29 CFR 1926.552(b)(1)(ii), which prohibits riders except for inspection and maintenance personnel, if employees had been allowed to ride the hoist. The requirement for posting of operating rules is also not waived by the fact that one person only is assigned to operate the hoist. Occasions might arise where someone other than that person would have to operate the hoist.

Even if one person is assigned to operate the hoist, overhead protection must be provided the operator. Respondent introduced no evidence to refute the compliance officer's testimony that there was no overhead protection for the operator.

6. Alleged Violation of 29 CFR 1926.100(a) and (b) Section 1926.100(a) [*32] and (b) of 29 CFR provides as follow:

(a) Employees working in areas where there is a danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

(b) Helmets for the protection of employees against impact and penetration of falling and flying objects shall meet the specifications contained in American National Standards Institute, Z89. 1-1969, Safety Requirements for Industrial Head Protection.

The complainant alleged that two employees were wearing improper head protection while performing their construction work.

Respondent concedes that two of its employees were not wearing helmets as required by 29 CFR 1926.100(a) and (b) (Tr. 67). Emphasis is placed on the fact that it took necessary action to assure that its employees had the proper protective helmets available for use on their jobs. Instructions had been given to all employees to wear the proper helmets (Tr. 154). Respondent also indicated that only a few of its employees ever attempted to wear bump hats and that such use, whenever discovered, was discouraged (Tr. 108).

The evidence is clear that the complainant has met its burden [*33] on this issue. The respondent admits that the proper protective helmets were not being worn by two of its employees on the day of the inspection. While the record does indicate that respondent had instructed its employees to wear proper helmets and that it discouraged the use of bump hats whenever it noticed they were worn, there is insufficient evidence to indicate that the wearing of the bump hats by the two employees was an isolated incident. The implication from the testimony of Levine is that other employees had in the past worn bump hats (Tr. 108). There is no indication as to what action, if any, the respondent took against employees who did not wear the proper protective helmet. The record also does not show what effort was made by the respondent to assure that the proper helmets would be worn in the work area. For these reasons, it is believed that the rationale of the Commission in the case of Secretary of Labor v. Standard Glass Company, Inc.,

In Standard Glass Company, Inc., supra, the Commission upheld a decision of the Judge that the employer was not in violation of 29 CFR [*34] 1518.100(a) n3 where the evidence showed only one occasion on which employees did not wear hard hats. The violation lasted for approximately five minutes. The evidence established that the company enforced its rule of wearing proper protective equipment, that it furnished the proper helmets to all employees who went into the construction area, that it instructed its employees to wear hats in the area and that employees who violated the instructions could expect a reprimand. The record further established that respondent had made an earnest effort to assure that the hard hats would be worn and that it had no knowledge of the violation which occurred. The criteria on which the Commission relied in finding no violation in Standard Glass Company, Inc., supra, has not been sufficiently established in this case to justify a determination for respondent.

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n3 Redesignated 29 CFR 1926.100(a) at 37 F.R. 3512, February 17, 1972.

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7. Alleged violation of 29 CFR 1926.552(c)(5) and (7)

Section 1926.552(c)(5) and (7) of [*35] 29 CFR provides as follows:

(5) Cars shall be permanently enclosed on all sides and the top, except sides used for entrance and exit, which have car gates or doors.

(7) Overhead protective covering of 2-inch planking, 3/4-inch plywood or other solid material of equivalent strength shall be provided on the top of every personnel hoist.

Complainant alleged that two employees were riding the personnel elevator which did not have overhead protection and that the platform was not enclosed as required.

The evidence reflects that an elevator was being installed in the shaft of building "A." Two men were working inside the elevator shaft at the third level. They were using the floor or the base of the elevator as a platform to work from in placing controls inside the elevator. There was no framework around the elevator floor and no overhead protection.

The evidence is clear that the elevator had not been completely installed in the shaft. The cited standard would appear to apply primarily to elevators which have been completely installed. There is, however, no reason to resolve the applicability of the standard to an elevator which is in the process of being installed. [*36] The evidence conclusively indicates that the elevator was being installed by the Dover Elevator Company, and that the two men working on the elevator were its employees (Tr. 104, 155).

The compliance officer testified that Koker acknowledged to him that the elevator belonged to the respondent (Tr. 71). He further testified that he did not inquire as to who was installing the elevator (Tr. 72). He assumed that the employees working on the elevator were those of the respondent since Koker had indicated that the elevator belonged to respondent (Tr. 75).

It is apparent that Koker and the compliance officer were not properly communicating to each other. It is obvious that Koker was referring to respondent's responsibility for the overall project when he indicated that the elevator belonged to the respondent. The compliance officer was aware that the respondent was in the business of commercial construction. Since the respondent is not in the business of installing elevators, it should have occurred to the compliance officer that the employees might not have been those of the respondent.

The Act creates a duty between the employer and his employees. There has been no [*37] showing that the respondent created the condition or exposed any of its employees to the violation. The only employees working on the elevator, as established by credible evidence, were those of Dover Elevator Company, a subcontractor. The fact that Dover Elevator Company may have exposed its employees to a violation can not be imputed to the respondent. Accordingly, it is concluded that respondent did not violate 29 CFR 1926.552(c)(5) and (7).

APPROPRIATENESS OF PENALTIES

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema [*38] Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense.

The Commission in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., The same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., Small monetary penalties were eliminated in both cases since the violations had been abated.

After due consideration of the four criteria provided by Section 17(j) and applying the rationale of the Commission in J.E. Chilton Millwork and Lumber Company, Inc., supra, and General Meat Company, Inc., supra, it is concluded that penalties for the violations found herein are warranted as hereinafter indicated.

1. 29 CFR 1926.25(a) and (b)

The complainant [*39] proposed a penalty of $50.00 for this violation. On the basis of the rationale in J.E. Chilton Millwork and Lumber Company, Inc., supra, no penalty is assessed for this violation. Stanford testified that while the job was dirtier than usual the past housekeeping of respondent had been excellent (Tr. 94). On the follow-up inspection the compliance officer commended respondent for excellent housekeeping (Tr. 38). Thus the indications are that the housekeeping that was maintained on the day of inspection was a deviation from respondent's usual practice and that that prompt remedial action was taken to correct the situation.

2. 29 CFR 1926.450(a)(2), (6) and (10)

The respondent conceded a violation of this standard at the hearing. The complainant proposed a penalty of $50 for this violation. On the basis of the rationale in J.E. Chilton Millwork and Lumber Company, Inc., supra, no penalty is asserted for this violation. The Compliance Officer stated that at the time of the inspection the job superintendent ordered the ladders destroyed (Tr. 22) and Stanford testified that he immediately started tearing up and rebuilding the ladders (Tr. 85). Thus, prompt action [*40] was taken to correct the violation.

3. 29 CFR 1926.152(a)(1)

The respondent admitted this violation in its Answer. The complainant proposed a penalty of $35 for this violation. The record does not show whether the violation had been abated. For this reason, it is believed that the penalty of $35 is proper.

4. 29 CFR 1926.152(d)(2)

The respondent admitted this violation in its answer. No penalty was proposed by complainant and under the circumstances it is concluded that no penalty is warranted.

5. 29 CFR 1926.500(e)(1)

The complainant proposed a penalty of $35 for this violation. Stanford indicated in his testimony that after the inspection he was required to put up hand rails and that he did so. (Tr. 85-86). Since the violation has been abated, the small monetary penalty is not justified. See Secretary of Labor v. J.E. Chilton Millwork and Lumber Co., Inc.,

6. 29 CFR 1926.500(b)(8)

The complainant proposed a penalty of $140.00 for this violation. The record is unclear as to when or whether the violation has been abated. In addition the absence of some type of barrier on the second levels of buildings "A" and "C" and an improper [*41] barricade on the third level of building "C" exposed employees to a potentially hazardous condition. Accordingly, it is concluded that the proposed penalty of $140.00 is proper.

7. 29 CFR 1926.552(b)(1)(i)(2) and (4)

The complainant proposed a penalty of $70.00 for this violation. The record does not indicate that the violation has been abated. For this reason it is concluded that the penalty is justified.

8. 29 CFR 1926.100(a) and (b)

No penalty was proposed for this violation and, under the circumstances, it is concluded that none should be asserted.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

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

3. The respondent committed non-serious violations of the following standards and appropriate penalties are asserted as indicated:

Standard Violated	Penalty Applicable
1. 29 CFR 1926.25(a) and (b)	None
2. 29 CFR 1926.450(a)(2), (6) and (10)	None
3. 29 CFR 1926.152(a)(1)	35.00
4. 29 CFR 1926.152(d)(2)	None
5. 29 CFR 1926.500(e)(1)	None
6. 29 CFR 1926.500(b)(8)	140.00
7. 29 CFR 1926.552(b)(1)(i), (2) and (4)	70.00
8. 29 CFR 1926.100(a) and (b)	None

[*42]

4. The respondent did not commit a violation of 29 CFR 1926.451(a)(4) and (12) and 29 CFR 1926.552(c)(5) and (7).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED:

1. That the respondent was not in violation of 29 CFR 1926.451(a)(4) and (12) and 29 CFR 1926.552(c)(5) and (7) and, accordingly, is not liable for the penalties proposed by complainant for these alleged violations; and

2. That the respondent did commit non-serious violations of the following standards and is liable for penalties as indicated:

Standard Violated	Penalty
1. 29 CFR 1926.25(a) and (b)	None
2. 29 CFR 1926.450(a)(2), (6) and (10)	None
3. 29 CFR 1926.152(a)(1)	35.00
4. 29 CFR 1926.152(d)(2)	None
5. 29 CFR 1926.500(e)(1)	None
6. 29 CFR 1926.500(b)(8)	140.00
7. 29 CFR 1926.552(b)(1)(i), (2) and (4)	70.00
8. 29 CFR 1926.100(a) and (b)	None