UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-2834
GROSSMAN STEEL & ALUMINUM CORP.,
Respondent.

October 18, 1978

DECISION

Before: CLEARY, Chairman; and BARNAKO, Commissioner.*

BY THE COMMISSION: A January 24, 1977 decision of Review Commission Judge Seymour Fier is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (‘the Act’). At issue is whether the Judge erred in finding (1) that the Respondent violated the general duty imposed upon employers by section 5(a)(1) of the Act, and (2) that the Respondent violated section 5(a)(2) of the Act[*] by failing to comply with two occupational safety standards.[†] Also in issue is the appropriateness of the $100 penalty assessed by the Judge for the Respondent’s noncompliance with a third safety standard, 29 C.F.R. § 1910.157(d)(3)(i).

The Judge’s decision affirming the charges before us was directed for review by former Commissioner Robert D. Moran on February 23, 1977, in a direction for review that did not set forth specific issues. The Respondent filed a brief in response to that direction, raising the issues previously noted.[‡] On January 6, 1978, the Commission issued an order pursuant to subparagraph D2 of the Commission’s Policy Statement of December 1, 1976, published at 41 Fed. Reg. 53015, December 3, 1976, affording Complainant the opportunity to file a brief in response to the issues raised by the Respondent in its brief to the Commission. By letter dated January 24, 1978, Complainant indicated that he would not file a brief on review in this case, but would rely instead on the Judge’s decision. This matter will therefore be decided without the benefit of additional argument.

The Respondent, Grossman Steel and Aluminum Corp., was engaged as an iron subcontractor for the erection of stairways at a Veterans Administration (VA) hospital construction project in New York City when the site was inspected by an authorized representative of the Department of Labor. The Respondent employed five employees at the site and was one of several contractors and subcontractors working on the project. The construction project consisted of 10 separate but attached sections, each designated by a letter, that covered an area approximately 250′ x 400′ in size. The new construction was on the grounds of the existing VA structure.

The section 5(a)(1) general duty clause violation concerns the alleged exposure of employees to the dangers of falling material where no overhead protection was provided over two entrances to the structure, designated as ‘B/C’ and ‘E.’[§] Work was being performed above the cited entrances by employees of various contractors not including the Respondent. The building was 9 stories tall above entrance B/C and 4 stories tall over entrance E.

Judge Fier affirmed the § 5(a)(1) allegation, concluding that the hazard of falling debris and other materials, where overhead protection was lacking, was recognized throughout the industry. He further concluded that the Respondent ‘permitted its workers to enter the hazardous area by failing to take affirmative action.’

We disagree. We can find no support in the record for the finding that the Respondent’s employees entered the hazardous area.[**] To the contrary, the record establishes that the employees did not, nor did they have any reason to, use entrances B/C and E. Unrebutted testimony establishes that the Respondent’s employees were instructed not to use the cited entrances because they were unsafe.[††] These employees were not working in sections B, C or E of the building but rather were working in the Area K service building that had direct ground level access. If they had any reason to enter other sections of the project, they could walk through from Area K because walls were not yet in place. The unrebutted evidence set forth above compels a finding that the Respondent’s employees were not exposed to the hazard of falling materials at the uncovered entrances.[‡‡]

Moreover, the entry of this finding and the reversal of the Judge’s contrary finding compels a re-evaluation of the Judge’s ultimate conclusion that the Respondent violated section 5(a)(1). In order to establish a violation of section 5(a)(1) the Secretary must prove:

1. That the employer failed to render its workplace ‘free’ of a hazard which was

2. ‘recognized,’ and

3. causing or likely to cause death or serious physical harm to his employees.

National Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973).

Implicit in the above elements is the necessity for establishing employee exposure to the cited hazardous condition. In particular, we note that we cannot conclude, in the absence of a finding of employee exposure, that an employer has failed to provide a workplace free from a hazard that was ‘causing or likely to cause death or serious physical harm to his employees’ (emphasis added). In this case the Secretary failed to prove the existence of such a hazard. We conclude, therefore, that the Secretary has failed to prove a violation as alleged.

Item 1 of Citation No. 1, also affirmed by the Judge, alleges that the Respondent failed to provide a fire alarm system at the site as required by the safety standard published at 29 C.F.R. § 1926.150(e)(1). That standard provides the following:

§ 1926.150 Fire Protection.

(e) Fire alarm devices. (1) An alarm system, e.g., telephone system, siren, etc., shall be established by the employer whereby employees on the site and the local fire department can be alerted for an emergency.

The Respondent did not provide an alarm within the structure. The Respondent’s Chairman testified, however, that he had discussed an alarm system with another contractor at the site, Bethlehem Steel Corporation, when work was commenced. It was agreed that in the event of an emergency the horn on Bethlehem’s hoisting equipment would be blown several times to distinguish this emergency signal from the signal (a single blow) designating working hours. The record further establishes that the Respondent’s employees could notify the hoist operator within 5 or 10 seconds if an alarm was needed by walking or running to the building perimeter nearest to the hoist. Alternatively, employees could also hand signal the hoist operator because, due to the lack of walls in the structure, the hoist was within their sight.

As noted previously, the construction site was next to an operating VA hospital. Although there was no means in the areas under construction for alerting the fire department, according to witnesses Grossman the hospital had ‘its own fire department system.’ At its closest point the project was approximately 100 feet from the hospital.

The cited standard requires that an alarm system be established so that employees and the fire department can be alerted for emergencies. No specifications for the system are given. All that is required is a system reasonably calculated to (1) notify employees that an emergency condition exists on the site, and (2) notify the fire department so that appropriate action can be taken. Section 1926.150(e)(1) is accordingly a ‘performance standard’ that indicates the hazard to be protected against and the performance criteria for evaluating the adequacy of the employer’s abatement efforts. See e.g., Hughes Brothers, Inc., — — OSAHRC ——, 6 BNA OSHRC ——, 1978 CCH OSHD ¶22,909 (No. 12523, 1978). The examples listed in the standard are illustrative only. The employer is not limited to using these systems, so long as the method chosen achieves the desired results.

We therefore must determine whether the system provided by the Respondent, consisting of an on-site horn signal to alert employees and the use of the hospital’s fire department system, satisfied the performance § 1910.252(a)(2)(iv)(c). The cited standard sets forth the following requirements:

§ 1910.252 Welding, cutting and brazing.

(a) Installation and operation of oxygen-fuel gas systems for welding and cutting.

(2) Cylinders and containers.

(iv) Oxygen storage.

(c) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour.

During his inspection, the compliance officer observed one oxygen tank and one acetylene tank standing upright and tied together in front of the Respondent’s trailer. Neither hoses nor gauges were attached to the tanks. The compliance officer testified that he was informed by the Respondent’s representative that the tanks were in storage and were fully charged. On the other hand, the Respondent’s Chairman testified that the tanks were not in storage, but were ready for use in that location. According to the witness, gauges and hoses were removed to avoid theft and were kept in the trailer. criteria noted above. We conclude that it did. We note that, in affirming the alleged violation, Judge Fier did not consider the short period of time it would take employees to orally notify the crane operator that in alarm was necessary, nor did he consider the proximity of the worksite to the hospital.[§§] We further note that there is no evidence that an onsite electrical alarm system would have been more effective than the system provided by the Respondent.[***]

Item 4 of Citation No. 1 alleges that the Respondent failed to comply with the requirements of the safety standard published at 29 C.F.R.

Judge Fier found that the tanks were not ‘hooked up’ and that there was no evidence to show that they were not inactive and stored. Accordingly, he affirmed the alleged violation. We disagree.

In United Engineers and Constructors, Inc., 75 OSAHRC 69/A2, 3 BNA OSHC 1313, 1974-75 CCH OSHD ¶19,780 (No. 2414, 1975), appeal dismissed, No. 75-1946 (3d Cir., September 17, 1975), the Commission affirmed the Judge’s conclusion that § 1910.252(a)(2)(iv)(c) was not violated because the cylinders were not in storage within the meaning of the standard. In that case, oxygen and acetylene cylinders, found together on the site, did not have regulators and hoses attached but were located in an area where burning would be done on an intermittent basis. The regulators and hoses were removed nightly to prevent leaks. The facts in the instant case are essentially indistinguishable and United Engineers is therefore dispositive. The Respondent has successfully rebutted the Secretary’s prima facie case and has established that the tanks were not in storage but rather were available for use in an area where welding was to be performed on an intermittent basis. The charge is vacated.

Item 3 of Citation No. 1 alleged a violation of the portable fire extinguisher maintenance standard published at 29 C.F.R. § 1910.157(d)(3)(i). On review, the Respondent does not object to the Judge’s affirmance of the violation, but does take exception to the Judge’s assessment of a $100 penalty. The Secretary did not propose a penalty for this item.

The violation concerns a portable fire extinguisher located in the Respondent’s trailer that needed recharging.[†††] The compliance officer testified that no penalty was proposed because the employer had provided an extinguisher, even though it was not fully charged, and had indicated that the problem would be corrected immediately. In addition, the Respondent’s witness testified that the cited extinguisher had been newly purchased 7 or 8 months prior to the inspection.

At the outset we note that the Commission has the authority to assess penalties in excess of those proposed by the Secretary. Robert T. Winzinger, Inc.. 76 OSAHRC 88/D13, 4 BNA OSHC 1475, 1976-77 CCH OSHD ¶20,929 (No. 6790, 1976), and cases cited therein. However, the penalty assessed for this violation appears to be excessive. Although it was not fully charged, the extinguisher was operable. The Respondent had exhibited good faith in newly purchasing the extinguisher for use at the worksite. Under these circumstances, we agree with the Secretary that no penalty is warranted.

It is therefore ORDERED that items 1 and 3 of Citation No. 1, and Citation No. 2 are vacated. The $100 penalty assessed for item 4 of Citation No. 1 is vacated.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: OCT 18, 1978

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner’s contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frisher & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. § 661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[‡‡‡]. In United the court indicated that, where a member voting with the majority without hearing oral argument ‘had the record before him and the benefit of briefs’, there was no abuse of discretion in his participation, 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

348 F.2d at 802.[§§§] See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decision may be upheld on a majority of a quorum. In FTC v. Flotill prod., 389 U.S. 179 (1967) rev’g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies, declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. E.G., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. § 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. § 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. § 651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission’s administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission, because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. § 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. It also assures the parties and the public of the full benefit of Commission review. Both of these results are essential in deciding cases affecting the lives, health and safety of American workers, the operation of American business, and the effective adjudication of cases by the administrative law judges.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-2834
GROSSMAN STEEL & ALUMINUM CORP.,
Respondent.

January 24, 1977

Appearances:

Francis V. LaRuffa, Regional Solicitor

United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant by Helen E. Huyler, Esq., of Counsel

Grossman Steel & Aluminum Corp.

375 Western Highway

Tappan, New York 10983

for Respondent by Warren J. Grossman, Esq., pro se

DECISION AND ORDER

Fier, Judge:

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., hereinafter called the Act), wherein respondent contests the citation and penalty for four nonserious and one serious violation. The citations dated June 17, 1976, were based on an inspection conducted April 13, 14, 15, 19, 20 and 21 of 1976. The citations and proposed penalties were issued pursuant to sections 9(a) and 10(a) of the Act.

In accordance with section 10(c) of the Act, 29 U.S.C. 659(c) respondent, through a letter dated June 23, 1976, noted its timely contest of the citations and proposed penalties.

The citations for the alleged nonserious violations sets forth the following:

Citation No. 1

Item No.	Standard	Date by which alleged violation must be corrected	Description of alleged violation
1	29 CFR 1926.150(e)(1)	June 28, 1976	An alarm system was not established by the employer whereby employees on the site and the local fire department could be alerted in case of fire or other emergency.
			A penalty of $60.00 was proposed.
2	29 CFR 1926.150(e)(2)	June 28, 1976	The alarm code and reporting instructions were not conspicuously posted at phones and at employee entrances to the site.
			No penalty was proposed.
3	29 CFR 1910.157(d)(3)(i) pg. 266	Immediately upon receipt of citation	Failure to properly maintain the 1A:10BC rated fire extinguisher that was located in the office trailer which was in need of recharging.
			No penalty was proposed.
4	29 CFR 1910.252(a)(2)(iv)(c) pg. 405	Immediately upon receipt of citation	Failure to properly store oxygen cylinders and acetylene cylinder that were located outside of the office trailer. Said cylinders were stored together.
			A penalty of $55.00 was proposed.
Citation No. 2—Serious Violation
1	Public Law 910 596 Section 5(a)(1) General Duty Clause	Immediately upon receipt of citation	Exposure of employees to the dangers of falling material where inadequate or no overhead protection was provided over two designated entrances to Section B/C and Section E. This is a recognized hazard in the construction industry. Employees were exposed through their normal duties in the course of their work in and about the structure. Overhead hazards were high in that materials were being transported from grade to upper levels by means of tower cranes located in the immediate areas of these main entrances. Should any material fall from these overhead floor levels, a resulting accident could be death or serious physical harm to employees.
			A penalty of $600.00 was proposed.

STANDARDS AS PROMULGATED

29 CFR 1926.150(e) Fire alarm devices.

(1) An alarm system, e.g., telephone system, siren, etc., shall be established by the employer whereby employees on the site and the local fire department can be alerted for an emergency.

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

29 CFR 1910.157(d)

(3) Maintenance. (i) At regular intervals, not more than 1 year apart, or when specifically indicated by an inspection, extinguishers shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed.

29 CFR 252(a)(2)(iv)

29 U.S.C. 654(a)(1) which provides as follows:

Sec. 5(a) Each employer—(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.

ISSUES

1. Whether the respondent violated the Occupational Safety and Health Act as alleged.

2. Whether the respondent failed to comply with sections 29 CFR 1926.150(e)(1); 29 CFR 1926.150(e)(2); 29 CFR 1910.157(d)(3)(i); 29 CFR 1910.252(a)(2)(iv)(c); if so did it violate section 29 U.S.C. 654(a)(2) of the Act.

3. Whether the respondent violated 29 U.S.C. 654(a)(1).

4. If the respondent is found to have violated any or all of the above; what penalty or penalties if any should be assessed.

EVIDENCE

The respondent is a corporation organized under the laws of the State of New York. It is engaged in construction business (Tr. 5).[****] The respondent asserts that many of its materials are manufactured in other States. Its average number of employees on any single day is about 40.

John Tomich, a compliance officer with the Occupational Safety and Health Administration of the U. S. Department of Labor, (hereinafter referred to as C.O.) visited the respondent’ worksite on April 13, 14, 15, 19, 20 and 21 of 1976 (Tr. 10). The construction site consisted of a multi-employer worksite with approximately twelve prime contractors and numerous subcontractors (Tr. 11). The location was at the Veterans Administration Hospital in the Bronx, New York. Additional buildings were being added to the existing hospital complex. At the time of inspection it is stated that structural steel and reinforced concrete construction was about 30 or 35 percent complete. There were about 10 buildings with heights of from one to nine stories (Tr. 12).

During the course of the inspection the C.O. observed that there was no alarm system in any of the structures as required by 29 CFR 1926.150(e)(1) (Tr. 13). The respondent had five employees working in the area at the time (Tr. 14). The hazard presented was a delay in summoning help in an emergency where time became a crucial factor in such instances as fire or injury. The C.O. thereupon recommended the issuance of a citation for the violation thereof.

The C.O. next observed that there was no coding or alarm instructions posted at any of the structures or floor levels. The C.O. thereupon recommended that a citation be issued for a violation of 29 CFR 1926.150(e)(2) (Tr. 15 17).

The respondent replied that an alarm system is not its responsibility. It further asserted that if an emergency did occur, the respondent could signal to another employer on the site by attracting its attention, who in turn would sound a whistle or horn. It further alleges that since it is engaged in early construction on a worksite, by following the steel, it would be premature to install an alarm system (Tr. 53, 49, 45). The respondent asserts that it is not an electrical company and therefore is not responsible for the installation of a system which is essentially electrical (Tr. 36).

The C.O. next observed that at the employer’s trailer and office there was a fire extinguisher with an inspection tag that was outdated. The hazard of this condition posed a danger to employees who might be exposed to a fire while in or near the trailer (Tr. 16). It was also alleged that the trailer itself was combustible (Tr. 16). The C.O. thereupon issued a citation for a violation of 29 CFR 1910.157(d)(3)(i). The respondent replied that the extinguisher was purchased just prior to the time it came on the jobsite in October, 1975, some seven months before the inspection (Tr. 50). It alleges that while the tag may indicate an expired date, the extinguisher would do its job (Tr. 50 51, 75).

The C.O. also observed in the close proximity to the trailer that two tanks, one of oxygen and the other acetylene were standing together with no hoses connected and posed a hazard. The C.O. recommended that a citation be issued for a violation of 29 CFR 1910.252(a)(2)(iv)(c). The respondent replied that the tanks were not in storage but ready to be used (Tr. 57). It further states that because of the thefts and other associated problems the connecting hose and gauges were kept in the trailer (Tr. 56 58). The respondent stated if the C.O. had come a day earlier he would have been the tanks being used (Tr. 50). The C.O. testified that when he apprised the respondent of the violation the tanks were immediately separated (Tr. 17).

The C.O. next observed that there were two designated entrances where employees egressed and ingressed. However, the C.O. determined that the workers were exposed to the hazard of falling objects because there was no protective canopy at the ‘E’ entrance and insufficient coverage at the ‘B/C’ entrance. The hazard was said to be a recognized hazard in the industry and one which the respondent was aware of (Tr. 18 20, 25). Upon the basis of the foregoing, the respondent was cited for a violation of public law 95 596, section 5(a)(1). The Secretary referred to the New York State Industrial Code for construction part 23, as evidence that the hazard is commonly known throughout the construction industry (Tr. 25 26). The respondent did not object to this (Tr. 26). The respondent asserts that it recognized the hazard and called the matter to the attention of the safety manager of the project (Tr. 47). The respondent further indicated it told the safety manager that if the matter was not corrected, a complaint would be filed with the Veterans Administration (Tr. 48).

OPINION

The issue of jurisdiction may be quickly disposed of by referring to the pleadings where the respondent does not deny that many of the materials used by it are made outside of New York State. Further the respondent stated that it is engaged in approximately 20 to 40 different jobs at one time (Tr. 41). It is thus reasonable to conclude that the respondent is engaged in commerce crossing state lines.

The citation for failing to have an alarm system was issued to the respondent when the C.O. determined that none of the buildings under construction were so equipped. The respondent does not deny the non-existence of an alarm system. The thrust of its defense is that the whistle used by another employer from outside the structures was adequate. The explanation submitted that the crane operator can see through the maze of construction to watch for any signal of emergency is unrealistic. The respondent also asserts that since it is not in the electrical business the responsibility for the installation of a system is misdirected. This logic also fails when considered in the context that the responsibility for the safety of its employees rests squarely on the employer to provide a safe place for them to work. The arguments for the non-availability of an alarm system for respondent’s employees are unpersuasive. The respondent at no time filed a waiver for the application of the standard. Accordingly, the evidence shows that the respondent did violate 29 CFR 1926.150(e)(1). In considering the imposition of a penalty, the factors set forth in section 17(j) have been considered. In addition, the fact that respondent had 5 employees on the jobsite and that the inspection was routine and not as the result of an accident was also weighed. Under the circumstances, a penalty of $60.00 would not be inappropriate

The companion standard for which the respondent was cited is concerned with the failure to have an alarm code and instructions at the entrances, and phones throughout the jobsite. The fact that the standard was not complied with has not been denied by the respondent. The necessity for the instructions is obvious if an alarm system is utilized. Having determined that there was no alarm system, it is also determined that there was no alarm code and instructions. The determination of an appropriate penalty takes into consideration all of the factors noted above. Accordingly, since the gravity of a violation for the standard 29 CFR 1926.150(e)(2) has been determined by the evidence to be low, the citation will be affirmed with no penalty.

The alleged violation of 29 CFR 1910.157(d)(3)(i) is concerned with an outdated inspection stamp on a fire extinguished The facts are uncontroverted, the efficiency of the extinguisher becomes questionable. Although the respondent asserts it was purchased some seven or eight months previous, it cannot seek to absolve itself from responsibility by its own carelessness. The necessity for relying on a good fire extinguisher in time of emergency can hardly be questioned. It should not be necessary to remind the respondent that a person using a fire extinguisher in time of emergency may not get a second chance if it fails the first time. The respondent’s defense in this regard is most unpersuasive. In considering the assessment of a penalty all of the evidence and testimony have been considered together with the criteria and factors set forth in section 17(j). Under the circumstances a penalty of $100.00 would not be inappropriate.

The alleged violation of 29 CFR 1910.252(a)(2)(iv)(c) is concerned with the failure to separate fuel-gas or combustible materials. The facts are not controverted. The oxygen and acetylene cylinders were observed together next to the respondent’s trailer. The respondent asserts that the tanks were not in storage but rather in active use. The evidence fails to support this contention. The respondent commented that the tanks were in use the previous day (Tr. 52). The tanks were not ‘hooked up’ at the time and there was no evidence to show that they were not inactive and stored. The relativity of the time factor in the usage of the tanks is a guestion of fact. The respondent corrected the violation as soon as the C.O. pointed out the danger. A contributing factor to the hazard was the close proximity of the tanks to the trailer and office. The possibility of a serious accident could easily have disastrous effects as a result. The weight of evidence supports a finding that the standard was violated. The factors relative to determining the appropriate penalty have been considered together with the facts showing that respondent immediately complied by separating the cylinders.

A penalty of $55.00 as proposed, would not be inappropriate under the circumstances.

The final matter for resolution is concerned with the alleged violation of public Law 91 596, General Duty Clause, Section 5(a)(1). The hazard complained of is the absence of overhead protection for employees at the designated entrances from falling debris and other materials. The evidence shows that the hazard existed. The respondent testified that it too recognized the hazard (Tr. 47 48). The Secretary introduced evidence to show that the hazard was recognized throughout the industry by referring to the New York State Industrial Code Rule for construction, part 23 (Tr. 25). See also Secretary v. Mid-Hudson Automatic Sprinkler Co., Inc., Docket No. 76-0576 (October 12, 1976); Secretary v. John T. Brady and Co., Inc., Docket No. 76 2894; Secretary v. Otis Elevator Co., Inc., Docket No. 76 3114. The respondent asserts that it complained of the hazard to the construction manager about ten days before the OSHA inspection in April, 1976. The respondent also states that it threatened to take further action by writing a complaint to the Veterans Administration (Tr. 47, 48). However, the respondent did not reduce to writing its complaint about the hazard (Tr. 69). The respondent was on the worksite since October, 1975 (Tr. 50) some seven months previous to the OSHA inspection. The respondent testified that it knew the absence of the overhead protection constituted a hazard. However, it still permitted its workers to enter the hazardous area by failing to take affirmative action. The respondent testified that it has approximately 20 40 jobs going at one time and that it visited this jobsite at least three times each week. Further, the respondent’s witness who is chairman of the Board is also an attorney. It is difficult to perceive that more affirmative steps to abate the hazard could not have been pursued. After considering the evidence and testimony, there is a sufficient basis for finding that the Secretary has carried its burden of proof that the respondent herein did violate the general duty clause. The factors in fixing an appropriate penalty have been considered in the light of the criteria of 17(j); the prior history; gravity of the hazard and good faith. Accordingly, a penalty of $200.00 would not be inappropriate.

All motions not previously disposed of are herewith denied.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following facts:

1. Respondent, Grossman Steel and Aluminum Co., Inc., is engaged in the construction business. The materials used and effects on commerce establishes that it is engaged in interstate commerce.

2. Respondent did not have an alarm system for fire and other emergencies at the worksite.

3. Respondent did not have reporting instructions and alarm code reduced to writing, posted at employee entrances and conspicuously posted at phones as required.

4. Respondent failed to have a fire extinguisher properly maintained and which was in need of recharging.

5. Respondent failed to properly store oxygen and acetylene cylinders in close proximity to its work trailer. The cylinders as stored posed a possibility of explosion or fire.

6. The danger of falling objects at or near the entrance to the subject worksite was a recognized hazard likely to cause death or other serious injuries to respondent’s employees.

7. The absence of a protective canopy at the designated entrances to the worksite to shield respondent’s employees from the inherent dangers within, were within the scope of respondent’s knowledge.

8. The use of a construction shield canopy and the hazards it seeks to prevent are common knowledge to the industry and to employers such as respondent.

9. The evidence is sufficient to show respondent’s failure to safeguard its employees by failing to provide construction shield canopies.

10. Respondent made no effort to prevent its employees from entering the area of the hazard.

CONCLUSIONS OF LAW

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

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent violated 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR 1926.150(e)(1) and (e)(2); 29 CFR 1910.157(d)(3)(i); 29 CFR 1910.252(a)(2)(iv)(c). (a)(2)(iv)(c).

4. Respondent violated 29 U.S.C. 654(a)(1) by failing to furnish its employees employment in a place free from recognized hazards in a place likely to cause death or serious physical harm to them.

ORDER

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

Citation number one, items one, two, three and four are affirmed. A penalty of $60.00 is assessed for item one; no penalty is assessed for item two; a penalty of $100.00 is assessed for item three; a penalty of $55.00 is assessed for item four.

Citation number two is affirmed. A penalty of $200.00 is assessed.

SEYMOUR FIER

JUDGE, OSHRC

Dated: January 24, §977

New York, New York

[*] The relevant portions of the Act provide as follows:

Sec. 5.(a) Each employer—

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

[†] The standards allegedly violated are 29 C.F.R § 1926.150(e)(1), requiring that a fire alarm system be provided, and 29 C.F.R. § 1926.252(a)(2)(iv)(c), requiring that oxygen cylinders in storage be separated from fuel-gas cylinders.

[‡] Judge Fier also affirmed an alleged violation of 29 C.F.R. § 1926.150(e)(2) for failure to post a fire alarm code and reporting instructions. The Respondent did not object to this affirmance in its brief to the Commission. Since no party has taken exception to this aspect of the Judge’s decision, it is not before us on review and will not be addressed. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD ¶20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD ¶20,508 (No. 3336, 1976).

[§] The letter designations indicate the sections of the building where the entrances were located.

[**] Although we will normally accept a Judge’s findings based on credibility determinations, this rule need not be applied in this case since credibility is not involved. The unrebutted testimony leads us inescapably to a conclusion contrary to that reached by the Judge. Champlin Petroleum Co., 77 OSAHRC 137/A2, 5 BNA OSHC 1601, 1977-78 CCH OSHD ¶21,951 (No. 13081, 1977), appeal filed, No. 77-2740 (5th Cir. Aug. 26, 1977).

[††] The Respondent’s supervisor at the site had complained to the construction manager at two safety meetings about the lack of overhead protection. The Respondent had also informed the construction manager that a written complaint would be filed with the VA. A complaint had not been filed, however, by the time of the inspection 10 days later.

[‡‡] Commissioner Barnako notes that he would reach the same conclusion by applying the test for determining whether employees are exposed to an alleged violation that is set forth in his opinion in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD ¶20,448 (No. 504, 1976). Thus, he agrees with the statement that the Judge’s finding that the Respondent’s employees in fact entered the hazardous area has no support in the record. He would further find, however, that there is no evidence of record to establish a ‘reasonable predictability’ that the Respondent’s employees would at any time be exposed to the cited conditions.

[§§] The Judge’s reasoning in support of his affirmance is not persuasive. Judge Fier determined that it would be unrealistic to expect the crane operator to see through the ‘maze of construction to watch for any signal of emergency.’ Assuming that this conclusion has any basis in the record, it does not affect the result since the testimony that the hoist operator could be personally contacted within 10 seconds is uncontradicted.

[***] In vacating this charge, we rely in particular on the following testimony by Mr. Grossman to conclude that both employees and the fire department would be properly notified:

It was our understanding that unlike using the horn to start and end work, that in case of emergency, they would go on a multiple blowing of this horn.

Now, we worked next to the hospital. The hospital has its own fire department system. It’s visible from the entire site and within the normal realms of notifying people, this alarm system would have done 40 times more than a squawk box.

So, as far as we were concerned for a five man crew working at the same time as the structural people, this was not only an adequate alarm system, it was a terrific alarm system.

Transcript, p. 53.

[†††] Judge Fier incorrectly stated that the charge concerned an outdated inspection stamp on the extinguisher. Nevertheless, in affirming the charge the Judge did find that the fire extinguisher was not properly maintained and was in need of recharging.

[‡‡‡] A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

[§§§] The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, n. 14.

[****] Denotes transcript page.