“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 8096\t\t\t\t\t\t\t\t\t\tUNDERHILL CONSTRUCTION CORP.,\t\t\t\t\t\t\t\t\t\tIndividually, and DIC CONCRETE CORP.,\t\t\t\t\t\t\t\t\t\tindividually and trading as DC_UNDERHILL,\t\t\t\t\t\t\t\t\t\ta joint venture,\t\t\t\t\t\t\t\t\t\tRespondents.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA May 12, 1975, decision of Review Commission Judge David G. Oringer is before this\t\t\t\t\t\t\t\t\t\tCommission for review pursuant to 29 U.S.C. \u00a7 661(i). That decision, which is attached hereto as\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tAppendix A, disposed of three citations which alleged that respondent had violated 29 U.S.C.\t\t\t\t\t\t\t\t\t\t\u00a7 654(a)(2) by failing to comply with five occupational safety and health standards. For the rea-\t\t\t\t\t\t\t\t\t\tsons that follow, the Commission affirms in part and reverses in part.\t\t\t\t\t\t\t\t\t\tSerious Citation Number 1, as amended by the complaint, alleges one serious violation in\t\t\t\t\t\t\t\t\t\tthat two of respondent’s employees were not wearing properly secured safety belts in contraven-\t\t\t\t\t\t\t\t\t\ttion of 29 C.F.R. \u00a7\u00a7 1926.28(a) and 1926.104 while working near an elevator shaft which was\t\t\t\t\t\t\t\t\t\tnot guarded as required by 29 C.F.R. \u00a7 1926.500(c)(1)(i). The Judge found respondent in viola-\t\t\t\t\t\t\t\t\t\ttion of sections 1926.28(a) and 1926.104(a), but vacated the portion of the citation pertaining to\t\t\t\t\t\t\t\t\t\tsection 1926.500(c)(1)(i). He assessed a $800 penalty therefor.\t\t\t\t\t\t\t\t\t\tThe Commission affirms the Judge’s decision except insofar as it affirms a violation of 29\t\t\t\t\t\t\t\t\t\tC.F.R. \u00a7 1926.104(a) and assesses a penalty in excess of $400. Chairman Barnako and Commis-\t\t\t\t\t\t\t\t\t\tsioner Cleary agree with the reasoning of the Judge in finding a violation of 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t1926.28(a). Also see Secretary v. Okland Construction Company, OSAHRC Docket No. 3395,\t\t\t\t\t\t\t\t\t\tFebruary 20, 1976, and the cases cited therein. They also agree with the Judge’s vacation of the\t\t\t\t\t\t\t\t\t\tportion of the citation pertaining to 29 C.F.R. \u00a7 1926.500(c)(1)(i). Commissioner Moran would\t\t\t\t\t\t\t\t\t\tvacate the alleged violation of section 1926.28(a) on the grounds that the citation merely repeat-\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tChairman Barnako does not agree to this attachment.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\ted the indefinite language of the standard and, therefore, did not \u2018describe with particularity the\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tnature of the violation\u2019 as required by 29 U.S.C. \u00a7 658(a). However, Commissioner Moran\t\t\t\t\t\t\t\t\t\twould affirm a violation for noncompliance with 29 C.F.R. \u00a7 1926.500(c)(1) in that the evi-\t\t\t\t\t\t\t\t\t\tdence, as summarized by the Judge’s decision, clearly establishes a violation of that standard.\t\t\t\t\t\t\t\t\t\tChairman Barnako and Commissioner Moran join in reversing the Judge’s finding that re-\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tspondent violated 29 C.F.R. \u00a7 1926.104(a). That standard provides that:\t\t\t\t\t\t\t\t\t\t\u2018Lifelines, safety belts, and lanyards shall be used only for employee safeguard-\t\t\t\t\t\t\t\t\t\ting. Any lifeline, safety belt or lanyard actually subjected to in-service loading, as\t\t\t\t\t\t\t\t\t\tdistinguished from static load testing, shall be immediately removed from service\t\t\t\t\t\t\t\t\t\tand shall not be used again for employee safeguarding.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt does not require the use of the protective equipment enumerated therein at any time. Com-\t\t\t\t\t\t\t\t\t\tplainant has not alleged, nor does the evidence establish, that respondent used this equipment for\t\t\t\t\t\t\t\t\t\tother than employee safeguarding or failed to comply with the second provision in the standard.\t\t\t\t\t\t\t\t\t\tAccordingly, there is no violation thereof.\t\t\t\t\t\t\t\t\t\tConsidering those factors listed in 29 U.S.C. \u00a7 666(i), the Commission assesses a $400\t\t\t\t\t\t\t\t\t\tpenalty for Serious Citation Number 1. The Commission concludes that a reduction in penalty is\t\t\t\t\t\t\t\t\t\twarranted because of its determination that only one standard was violated and because the grav-\t\t\t\t\t\t\t\t\t\tity of the situation does not warrant the higher penalty. Only two employees were exposed to the\t\t\t\t\t\t\t\t\t\thazard and there was not a high probability of a fall in view of the type of work they were per-\t\t\t\t\t\t\t\t\t\tforming.\t\t\t\t\t\t\t\t\t\tSerious Citation Number 2 alleged that respondent failed to comply with 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t1926.552(b)(2) in that \u2018[t]he entrances of a material hoistway [were] not protected by substantial\t\t\t\t\t\t\t\t\t\tgates or bars.\u2019 Chairman Barnako and Commissioner Moran also join in vacating this citation\t\t\t\t\t\t\t\t\t\tbecause the evidence does not establish the requisite degree of endangerment of respondent’s\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\temployees to the alleged hazard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tThe citation failed to allege what type of personal protective equipment should have been used\t\t\t\t\t\t\t\t\t\tand simply stated that:\t\t\t\t\t\t\t\t\t\t\u2018Two employees were not wearing appropriate personal protective equipment\t\t\t\t\t\t\t\t\t\twhen grouting sills along the edge of an unguarded elevator shaft wall opening.\u2019\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tCommissioner Cleary dissents from this conclusion. In his view, what was actually tried was\t\t\t\t\t\t\t\t\t\twhether or not section 1926.104(b) rather than (a) was violated. The complaint alleged a viola-\t\t\t\t\t\t\t\t\t\ttion of section 1926.104 (no subsection was mentioned) for a failure to wear appropriate person-\t\t\t\t\t\t\t\t\t\tal protective equipment. Section 1926.104(b) provides that lifelines shall be secured above the\t\t\t\t\t\t\t\t\t\tpoint of operation to an anchorage or structural member capable of supporting a minimum dead\t\t\t\t\t\t\t\t\t\tweight of 5,400 pounds. Judge Oringer expressly found that the employees could have been pro-\t\t\t\t\t\t\t\t\t\ttected by safety belts and lanyards secured to the elevator bucks, permanent securing for the ele-\t\t\t\t\t\t\t\t\t\tvator doors anchored in concrete. The personal equipment is required by section 1926.28(a).\t\t\t\t\t\t\t\t\t\tHow it is worn or secured is addressed in section 1926.104(b).\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tCommissioner Cleary dissents. He would affirm the Judge’s decision: (1) for the reasons stated\t\t\t\t\t\t\t\t\t\ton pages 22 and 23 of the Judge’s decision; (2) he believes that Commissioner Moran’s reliance\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe facts indicate that two of the respondent’s employees were working on the 20th floor\t\t\t\t\t\t\t\t\t\tof a building worksite grouting sills adjacent to an elevator shaft. The hoist, which was located\t\t\t\t\t\t\t\t\t\talong the outside edge of the building, opened onto this floor. Although it was unguarded at the\t\t\t\t\t\t\t\t\t\ttime of the inspection, a guard was immediately available which would have provided adequate\t\t\t\t\t\t\t\t\t\tprotection if it had been in the proper position. Respondent’s employees were observed no closer\t\t\t\t\t\t\t\t\t\tto the hoist than 40 feet, and their work did not require them to work within close proximity\t\t\t\t\t\t\t\t\t\tthereto.\t\t\t\t\t\t\t\t\t\tChairman Barnako finds that the facts fail to establish a \u2018reasonable predictability\u2019 that\t\t\t\t\t\t\t\t\t\trespondent’s employees would have been, were, or had been in the zone of danger\t\t\t\t\t\t\t\t\t\t(mt,be,d070796) required by Secretary v. Gilles and Cotting, Inc., OSAHRC Docket No. 504,\t\t\t\t\t\t\t\t\t\tFebruary 20, citation for reasons stated in Moran agrees with this conclusion, he continues to ad-\t\t\t\t\t\t\t\t\t\there to his position that complainant must establish actual exposure of a cited employer’s em-\t\t\t\t\t\t\t\t\t\tployees for the reasons stated in his dissenting opinion in Gilles and Cotting.\t\t\t\t\t\t\t\t\t\tAll Commission members agree with the Judge’s disposition of the nonserious citation\t\t\t\t\t\t\t\t\t\tfor reasons stated in his decision.\t\t\t\t\t\t\t\t\t\tAccordingly, the Judge’s decision is affirmed except insofar as it affirmed violations of\t\t\t\t\t\t\t\t\t\t29 C.F.R. \u00a7\u00a7 1926.104(a) and 1926.552(b)(2) and assessed a penalty of $800 for Serious Citation\t\t\t\t\t\t\t\t\t\tNumber 1. The portion of Serious Citation Number 1 alleging a violation of 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t1926.104(a) is vacated and a penalty of $400 is assessed for that citation. Serious Citation Num-\t\t\t\t\t\t\t\t\t\tber 2 and the $500 penalty assessed therefor are also vacated. The remaining findings of the\t\t\t\t\t\t\t\t\t\tJudge are affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: OCT 6, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tupon a lack of actual exposure lacks precedential support (See Gilles & Cotting, supra.); and (3)\t\t\t\t\t\t\t\t\t\the believes that the Chairman’s reading of Gilles & Cotting is unduly narrow for the reasons set\t\t\t\t\t\t\t\t\t\tforth in the concurring opinion to that decision.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 11553\t\t\t\t\t\t\t\t\t\tUNDERHILL CONSTRUCTION CORP.,\t\t\t\t\t\t\t\t\t\tIndividually, and DIC CONCRETE CORP.,\t\t\t\t\t\t\t\t\t\tindividually and trading as DC_UNDERHILL,\t\t\t\t\t\t\t\t\t\ta joint venture,\t\t\t\t\t\t\t\t\t\tRespondents.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tFor the Complainant: Francis V. LaRuffa, Regional Solicitor\t\t\t\t\t\t\t\t\t\tLouis D. DeBernardo, Attorney\t\t\t\t\t\t\t\t\t\tU. S. Department of Labor\t\t\t\t\t\t\t\t\t\tOffice of the Solicitor\t\t\t\t\t\t\t\t\t\t1515 Broadway, Room 3555\t\t\t\t\t\t\t\t\t\tNew York, New York 10036\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFor the Respondent: Sachs, Montgomery, Molineaux & Pastore, Esqs.\t\t\t\t\t\t\t\t\t\t437 Madison Avenue\t\t\t\t\t\t\t\t\t\tNew York, New York 10022\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDavid G. Oringer, Judge: This is a proceeding under section 10(c) of the Occupational\t\t\t\t\t\t\t\t\t\tSafety & Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as \u2018the Act\u2019) to re-\t\t\t\t\t\t\t\t\t\tview citations alleging two serious violations and one non-serious violation issued by the Secre-\t\t\t\t\t\t\t\t\t\ttary of Labor (hereinafter referred to as \u2018complainant\u2019), to the employer pursuant to section 9(a)\t\t\t\t\t\t\t\t\t\tof the Act, and a proposed assessment of penalties thereon issued in the aggregate sum of\t\t\t\t\t\t\t\t\t\t$1,800.00, pursuant to section 10(a) of the Act, all documents being served on or about April 29,\t\t\t\t\t\t\t\t\t\t1974.\t\t\t\t\t\t\t\t\t\tThe citations alleged that as a result of an inspection of the employer’s workplace on\t\t\t\t\t\t\t\t\t\tApril 18, 1974, the employer (hereinafter referred to as \u2018respondent\u2019) at a workplace under its\t\t\t\t\t\t\t\t\t\townership, operation and\/or control, violated each of two standards in serious manner, and one\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tstandard in non-serious manner, which standards were duly promulgated pursuant to the Act.\t\t\t\t\t\t\t\t\t\tThe standards allegedly violated by the respondent, read as follows:\t\t\t\t\t\t\t\t\t\tCitation\t\t\t\t\t\t\t\t\t\t1.\t\t\t\t\t\t29 C.F.R. 1926.28(a)\t\t\t\t\t\t\t\t\t\t(a) The employer is responsible for requiring the wearing\t\t\t\t\t\t\t\t\t\tof appropriate personal protective equipment in all opera-\t\t\t\t\t\t\t\t\t\ttions where there is an exposure to hazardous conditions or\t\t\t\t\t\t\t\t\t\twhere this part indicates the need for using such equipment\t\t\t\t\t\t\t\t\t\tto reduce the hazards to the employees.\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1926.500(c)\t\t\t\t\t\t\t\t\t\t(c) Guarding of wall openings. (??) Wall openings, from\t\t\t\t\t\t\t\t\t\twhich there is a drop of more than 4 feet, and the bottom of\t\t\t\t\t\t\t\t\t\tthe opening is less than 3 feet above the working surface,\t\t\t\t\t\t\t\t\t\tshall be guarded as follows:\t\t\t\t\t\t\t\t\t\t(i) When the height placement of the opening in re-\t\t\t\t\t\t\t\t\t\tlation to the working surface is such that either a standard\t\t\t\t\t\t\t\t\t\trail or intermediate rail will effectively reduce the danger\t\t\t\t\t\t\t\t\t\tof falling, one or both shall be provided;\t\t\t\t\t\t\t\t\t\tCitation\t\t\t\t\t\t\t\t\t\t2. 29 C.F.R. 1926.552(b)(2)\t\t\t\t\t\t\t\t\t\tSerious Violation\t\t\t\t\t\t\t\t\t\t(2) All entrances of the hoistways shall be protected by\t\t\t\t\t\t\t\t\t\tsubstantial gates or bars which shall guard the full width of\t\t\t\t\t\t\t\t\t\tthe landing entrance. All hoistway entrance bars and gates\t\t\t\t\t\t\t\t\t\tshall be painted with diagonal contrasting colors, such as\t\t\t\t\t\t\t\t\t\tblack and yellow stripes.\t\t\t\t\t\t\t\t\t\t1. 29 C.F.R. 1926.100(a)\t\t\t\t\t\t\t\t\t\tNon-Serious Violation\t\t\t\t\t\t\t\t\t\t(a) Employees working in areas where there is a possibly\t\t\t\t\t\t\t\t\t\tdanger of head injury from impact, or from falling or flying\t\t\t\t\t\t\t\t\t\tobjects, or from electrical shock and burns, shall be pro-\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\ttected by protective helmets.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA notification of proposed penalty was issued to the respondent by the complainant on\t\t\t\t\t\t\t\t\t\teven date, to wit, on or about April 29, 1974, proposing penalties of $800.00 for each of the seri-\t\t\t\t\t\t\t\t\t\tous violations and $200.00 for the one non-serious violation, comprising total aggregate penal-\t\t\t\t\t\t\t\t\t\tties of $1,800.00. The violations, as alleged by the complainant, are described as follows:\t\t\t\t\t\t\t\t\t\tCitation No. 1 for Serious Violation\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStandard, regulation or\t\t\t\t\t\tDescription of alleged violation\t\t\t\t\t\t\t\t\t\tsection of the Act\t\t\t\t\t\t\t\t\t\tTwo employees were not wearing\t\t\t\t\t\t\t\t\t\tallegedly violated\t\t\t\t\t\t\t\t\t\tappropriate\t\t\t\t\t\tpersonal\t\t\t\t\t\tprotective\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tequipment when grouting sills along\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tthe edge of an unguarded elevator\t\t\t\t\t\t\t\t\t\tshaft wall opening. Location: 20th\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tfloor open elevator shaft area.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1. 29 C.F.R. 1926.28(a)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCitation for Non-Serious Violation\t\t\t\t\t\t\t\t\t\tStandard, regulation\t\t\t\t\t\tDescription of alleged violation\t\t\t\t\t\t\t\t\t\tor section of the Act\t\t\t\t\t\tTwo employees working in an area\t\t\t\t\t\t\t\t\t\tallegedly violated\t\t\t\t\t\twhere there was possible danger of\t\t\t\t\t\t\t\t\t\t1.\t\t\t\t\t\t29 C.F.R. 1926.100(a) (page 27512)\t\t\t\t\t\thead injury from falling or flying ob-\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tjects were not protected by protec-\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\ttive helmets. Location: 20th floor\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\talong elevator shaft opening.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn its complaint, the complainant coupled that standard found at 29 C.F.R. 1926.104 to-\t\t\t\t\t\t\t\t\t\tgether with the standard found at 29 C.F.R. 1926.28(a). In a preliminary motion immediately\t\t\t\t\t\t\t\t\t\tprior to the trial of the action, the respondent moved to strike that portion of the complaint,\t\t\t\t\t\t\t\t\t\twhich motion was denied by the undersigned, inasmuch as pleadings may be liberally amended\t\t\t\t\t\t\t\t\t\tand there was no showing of prejudice by the respondent. In addition thereto, in the event there\t\t\t\t\t\t\t\t\t\twas a plea of surprise, this tribunal offered an adjournment to the respondent, which offer was\t\t\t\t\t\t\t\t\t\tnot accepted.\t\t\t\t\t\t\t\t\t\tA timely notice of contest was served upon the complainant by the respondent on or\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tabout May 20, 1974, contesting the citations as well as the penalties proposed therefor. Thereaf-\t\t\t\t\t\t\t\t\t\tter, a complaint was served by the complainant upon the respondent and an answer was filed by\t\t\t\t\t\t\t\t\t\tthe respondent with the complainant.\t\t\t\t\t\t\t\t\t\tSubsequent thereto the case was assigned to the undersigned for trial and disposition\t\t\t\t\t\t\t\t\t\tthereof. The case was set for hearing pursuant to notice, and \u2018Order and Instructions to Partici-\t\t\t\t\t\t\t\t\t\tpants’ was sent to all parties. The case was set down for trial for Friday, August 30, 1974, at\t\t\t\t\t\t\t\t\t\tRoom 3800, 1515 Broadway, New York, New York. Response was made to the Judge’s Order\t\t\t\t\t\t\t\t\t\tand Instructions and the case was tried pursuant to the aforementioned notice. After trial, the par-\t\t\t\t\t\t\t\t\t\tties were given time in which to submit briefs, proposed findings of fact, and conclusions of law.\t\t\t\t\t\t\t\t\t\tHaving heard the testimony and observed the demeanor of the witnesses and having con-\t\t\t\t\t\t\t\t\t\tsidered the same, together with the citations, notification of proposed penalty, notice of contest,\t\t\t\t\t\t\t\t\t\tpleadings, motions, representations, stipulations and admissions of the parties, it is concluded\t\t\t\t\t\t\t\t\t\tthat substantial evidence, on the record considered as a whole, supports the following\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1. The respondents Underhill Corporation and Dic Concrete Corporation are New York\t\t\t\t\t\t\t\t\t\tcorporations with principle offices located in Bayside, New York and Elmont, New York, re-\t\t\t\t\t\t\t\t\t\tspectively. The respondents traded as Dic-Underhill, a Joint Venture, with its offices in Bayside,\t\t\t\t\t\t\t\t\t\tNew York, and is qualified to do business in the State of New York (Tr. pp. 4, 5).\t\t\t\t\t\t\t\t\t\t2. The respondent regularly uses cement imported from Norway, cranes manufactured in\t\t\t\t\t\t\t\t\t\tWisconsin and Trucks manufactured in Detroit, Michigan, in its business (Tr. p. 5).\t\t\t\t\t\t\t\t\t\t3. During the year 1973, the respondent had a net worth in excess of one million dollars\t\t\t\t\t\t\t\t\t\tand employed more than 1,000 employees daily (Tr. p. 5).\t\t\t\t\t\t\t\t\t\t4. The respondent was duly served with the citations and notification of proposed penalty\t\t\t\t\t\t\t\t\t\tthat are the subject of this proceeding and the respondent filed a timely notice of contest (Tr. p.\t\t\t\t\t\t\t\t\t\t6).\t\t\t\t\t\t\t\t\t\t5. The notice of hearing and the citations were posted by the respondent (Tr. p. 10).\t\t\t\t\t\t\t\t\t\t6. The job site was a 29-story high rise apartment building which occupied the block\t\t\t\t\t\t\t\t\t\tfrom 54th Street to 55th Street and had approximately 20,000 sq. ft. per floor (Tr. p. 27).\t\t\t\t\t\t\t\t\t\t7. Prior to the commencement of the inspection, the complainant’s representative, a Mr.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tRichardson, went to the office of the General Contractor, Shapiro Construction Co., and identi-\t\t\t\t\t\t\t\t\t\tfied himself by showing his credentials to the employer representative of the general contractor.\t\t\t\t\t\t\t\t\t\tThe government representative asked the representative of the general contractor to contact all of\t\t\t\t\t\t\t\t\t\tthe subcontractors. The representative of the general contractor contacted as many of the subcon-\t\t\t\t\t\t\t\t\t\ttractors’ representatives as it was possible to do. He went out on the worksite and was able to lo-\t\t\t\t\t\t\t\t\t\tcate three or four contractors’ representatives. The only representatives who went on the walk\t\t\t\t\t\t\t\t\t\taround inspection were employees of the general contractor and of the carpeting subcontractor,\t\t\t\t\t\t\t\t\t\tPrince Carpentry (Tr. pp. 27, 28).\t\t\t\t\t\t\t\t\t\t8. The general contractor had a list of all the subcontractors on the worksite, one of which\t\t\t\t\t\t\t\t\t\twas the instant respondent, Dic-Underhill, a Joint Venture. The complainant’s representative\t\t\t\t\t\t\t\t\t\tasked to speak to someone representing the respondent, Dic-Underhill. There was no such repre-\t\t\t\t\t\t\t\t\t\tsentative available at the worksite at the time, as the general contractor’s representative could not\t\t\t\t\t\t\t\t\t\tfind the foreman (Tr. pp. 28, 29, 32, 40).\t\t\t\t\t\t\t\t\t\t9. The complainant’s representative found two employees, Mr. Luigi Mattola and Mr.\t\t\t\t\t\t\t\t\t\tBenjamin Gambino, who professed to be employees of the respondent. The next day, the com-\t\t\t\t\t\t\t\t\t\tpliance officer spoke to the respondent’s foreman, Mr. Bonovalta, who advised the Secretary’s\t\t\t\t\t\t\t\t\t\trepresentative that Mattola and Gambino were employees of the respondent and under his super-\t\t\t\t\t\t\t\t\t\tvision. In addition thereto, the foreman verified that his company was working on the 20th floor\t\t\t\t\t\t\t\t\t\twhere the aforesaid Mattola and Gambino were working on the day of the inspection herein con-\t\t\t\t\t\t\t\t\t\tcerned (Tr. pp. 32, 33, 38, 39, 40).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t10. The Secretary’s representative, the compliance officer, spent one hour in the office of\t\t\t\t\t\t\t\t\t\tthe general contractor prior to the inspection, awaiting representatives of all subcontractors to\t\t\t\t\t\t\t\t\t\tjoin him on the walk around inspection (Tr. p. 42).\t\t\t\t\t\t\t\t\t\t11. On the day of the inspection herein concerned, Messrs. Mattola and Gambino were\t\t\t\t\t\t\t\t\t\temployees of the respondent (Tr. p. 52a).\t\t\t\t\t\t\t\t\t\t12. On the day of the inspection herein concerned, the respondent’s foreman, Mr. Bono-\t\t\t\t\t\t\t\t\t\tvalta, was working at another job during the time that the inspection took place (Tr. p. 53).\t\t\t\t\t\t\t\t\t\t13. The foreman stated at the closing conference that the two men on the 20th floor,\t\t\t\t\t\t\t\t\t\tGambino and Mattola, were the respondent’s employees and that they were supposed to be work-\t\t\t\t\t\t\t\t\t\ting on the 20th floor on the day that the inspection took place (Tr. pp. 53, 54).\t\t\t\t\t\t\t\t\t\t14. During the time of the inspection herein concerned, the respondent had two employ-\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tees grouting the sills at the edge of the 20th floor adjacent to the elevator shaft (Tr. p. 55).\t\t\t\t\t\t\t\t\t\t15. The elevator shaft was approximately 31 feet long and 8 feet wide. The bucks or\t\t\t\t\t\t\t\t\t\tframing for the doorways were already completed, however, there were no doors as yet installed\t\t\t\t\t\t\t\t\t\t(Tr. pp. 64, 65).\t\t\t\t\t\t\t\t\t\t16. One employee of the respondent, Mr. Gambino, was working at the edge of the eleva-\t\t\t\t\t\t\t\t\t\ttor shaft spreading cement on the floor and smoothing it. The sill was about a foot wide and the\t\t\t\t\t\t\t\t\t\televator shaft was approximately 180 feet from the ground. Mr. Gambino had his head and\t\t\t\t\t\t\t\t\t\tshoulder partially into the shaft and Mr. Mattola was standing two or three or four feet from the\t\t\t\t\t\t\t\t\t\tshaft, behind Mr. Gambino, at the time of the inspection (Tr. pp. 65, 66).\t\t\t\t\t\t\t\t\t\t17. Mr. Gambino’s head went into the shaft for about an inch (Tr. 134, 135).\t\t\t\t\t\t\t\t\t\t18. The Secretary’s representative, Mr. Richardson, heard something come down the shaft\t\t\t\t\t\t\t\t\t\tthat sounded like small concrete pieces and saw something come down that looked like a gray\t\t\t\t\t\t\t\t\t\tblur that he believed to be a chunk of concrete (Tr. p. 136).\t\t\t\t\t\t\t\t\t\t19. At the time the respondent’s employee, Gambino, was grouting at the edge of the ele-\t\t\t\t\t\t\t\t\t\tvator shaft and the other employee, Mottola, was approximately 3 or 4 feet behind him, neither\t\t\t\t\t\t\t\t\t\temployee was wearing any kind of personal protective equipment such as safety belts or lan-\t\t\t\t\t\t\t\t\t\tiards,(sic,be,d070896) nor were there any guard rails or any other type of protection against fall-\t\t\t\t\t\t\t\t\t\ting, at the edge of the elevator shaft on the 20th floor (Tr. pp. 67, 68, 71).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t20. The two aforesaid employees of the respondent on the 20th floor were not wearing\t\t\t\t\t\t\t\t\t\thelmets or any other type of head protection at the time they were grouting (Tr. p. 67).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t21. There were guard rails on the 20th floor that were laying on the ground which were\t\t\t\t\t\t\t\t\t\tmade of metal dry wall studs that were put together so as to compose a top rail, mid rail and toe-\t\t\t\t\t\t\t\t\t\tboard. The guard rails were taken down by the respondent’s employees before they began to pour\t\t\t\t\t\t\t\t\t\tthe grout or the finished concrete, because they could not have performed the work while the\t\t\t\t\t\t\t\t\t\tguard rail was up. The guard rail had to be taken down in one piece as it was secured with rivets\t\t\t\t\t\t\t\t\t\t(Tr. pp. 71, 72).\t\t\t\t\t\t\t\t\t\t22. The respondent’s employees would not have been able to grout the sill if they left the\t\t\t\t\t\t\t\t\t\tguard rail up (Tr. p. 72). Guard rails could have been constructed so that the toeboard could be\t\t\t\t\t\t\t\t\t\tremoved. If the latter type of guard rail with a removable toeboard was used, no citation for this\t\t\t\t\t\t\t\t\t\titem would have been issued (Tr. pp. 72, 73).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t23. If a guard rail had been used which contained a top rail and intermediate rail, the\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\twork could have gone on as long as the toeboard was removed and this would have effectively\t\t\t\t\t\t\t\t\t\treduced the danger of falling to the two employees (Tr. pp. 73, 74, 75).\t\t\t\t\t\t\t\t\t\t24. As an alternative, the employees could have been protected by safety belts and lan-\t\t\t\t\t\t\t\t\t\tiards secured to the elevator bucks (Tr. p. 76).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t25. There was a material hoist on the outside of the building on the exterior attached to\t\t\t\t\t\t\t\t\t\tthe wall which had an opening on each floor. On each floor, the hoistway was provided with pro-\t\t\t\t\t\t\t\t\t\ttection bars which could be placed in a vertical position so an employee could walk into the shaft\t\t\t\t\t\t\t\t\t\ton to the material car, or it could be placed horizontally for protection against falling into the\t\t\t\t\t\t\t\t\t\thoistway by reaching up and pulling it down (Tr. pp. 79\u201384).\t\t\t\t\t\t\t\t\t\t26. The closest distance of either of the respondent’s employees to the material hoist shaft\t\t\t\t\t\t\t\t\t\twas 40 feet (Tr. 85).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t27. At the elevator shaft way, there was a danger of the employees falling into the shaft,\t\t\t\t\t\t\t\t\t\tand at the material hoistway, with the bar vertical, there was a danger of the employees falling\t\t\t\t\t\t\t\t\t\tinto the material hoistway shaft.\t\t\t\t\t\t\t\t\t\t28. In the event either of the respondent’s employees fell into the material hoist shaft way,\t\t\t\t\t\t\t\t\t\tthere was probability of death. The respondent could have known of the hazards by just simple\t\t\t\t\t\t\t\t\t\tobservation of the material hoistway and could have seen the failure to have any type of guards\t\t\t\t\t\t\t\t\t\t(Tr. pp. 92, 93, 94).\t\t\t\t\t\t\t\t\t\t29. The fall at either the elevator shaft way or the material hoistway would have been up\t\t\t\t\t\t\t\t\t\tto 20 floors or approximately 180 feet (Tr. pp. 93, 94).\t\t\t\t\t\t\t\t\t\t30. There was a possibility that the respondent’s employees sometime during the working\t\t\t\t\t\t\t\t\t\thours could have gone to the material hoist shaft for various reasons, e.g., to use the material\t\t\t\t\t\t\t\t\t\thoist, or look down the shaft, or go for a cigarette. There was a possibility that inasmuch as there\t\t\t\t\t\t\t\t\t\twas access to the shaft, the employees could go to the shaft and possibly fall into it (Tr. p. 82).\t\t\t\t\t\t\t\t\t\t31. If Mr. Mattola, the respondent’s employee, walked approximately 10 feet, he would\t\t\t\t\t\t\t\t\t\thave been underneath a floor opening where plumbers were working (Tr. p. 142).\t\t\t\t\t\t\t\t\t\t32. The complainant’s representatives took into account the elements mandated by 17(j)\t\t\t\t\t\t\t\t\t\tof the Act in arriving at the penalties proposed in the notification of proposed penalty (Tr. pp.\t\t\t\t\t\t\t\t\t\t94\u2013115, 153\u2013156).\t\t\t\t\t\t\t\t\t\tOPINION\t\t\t\t\t\t\t\t\t\tThe respondent argued during the trial and in his brief that the inspection was invalid and\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tvoid inasmuch as the respondent was not given an opportunity to accompany the inspector dur-\t\t\t\t\t\t\t\t\t\ting his inspection. The facts surrounding the inspection were simple. The inspector went to the\t\t\t\t\t\t\t\t\t\toffice of the general contractor, exhibited his credentials and advised the general contractor that\t\t\t\t\t\t\t\t\t\the was upon the premises for the purposes of making a walk around inspection of the construc-\t\t\t\t\t\t\t\t\t\ttion site and job. He asked the general contractor to get all of the foremen of all of the subcon-\t\t\t\t\t\t\t\t\t\ttractors, as well as himself, to go on the walk around. The foremen for this respondent were not\t\t\t\t\t\t\t\t\t\tavailable and, as the testimony revealed, were working on another larger project for the respond-\t\t\t\t\t\t\t\t\t\tent at the time that this inspection took place. The inspector, during his walk around, saw two\t\t\t\t\t\t\t\t\t\tmen working on the 20th floor and was advised by the general contractor’s representative that\t\t\t\t\t\t\t\t\t\tthey were Dic-Underhill employees, because they belonged on the 20th floor. The inspector\t\t\t\t\t\t\t\t\t\tspoke to both of the respondent’s employees, a Mr. Gambino and a Mr. Mattola, who stated that\t\t\t\t\t\t\t\t\t\tthey were employed by Dic-Underhill. Subsequent thereto, on the next day, a foreman of the re-\t\t\t\t\t\t\t\t\t\tspondent, Mr. Bonovalta, stated that his men were supposed to be working on the 20th floor on\t\t\t\t\t\t\t\t\t\tthe date and time of the inspection herein concerned, and that a Mr. Gambino and a Mr. Mattola\t\t\t\t\t\t\t\t\t\tboth were employees of the respondent.\t\t\t\t\t\t\t\t\t\tThe respondent argues that inasmuch as Mr. Bonovalta and the inspector did not ever\t\t\t\t\t\t\t\t\t\tcome face to face with the aforesaid Messrs. Gambino and Mattola at the same time, there is no\t\t\t\t\t\t\t\t\t\tproof that the two men alleging to be Gambino and Mattola were, in fact, those individuals and\t\t\t\t\t\t\t\t\t\temployees of the respondent. This tribunal finds this argument of little merit. Certainly, the pre-\t\t\t\t\t\t\t\t\t\tponderance of the uncontroverted credible evidence of record demonstrates that Gambino and\t\t\t\t\t\t\t\t\t\tMattola were employees of the respondent. There can be no stronger circumstantial evidence\t\t\t\t\t\t\t\t\t\tthan appears in the case at bar. The inspector remained in the office of the general contractor for\t\t\t\t\t\t\t\t\t\ta full hour during which time the General contractor attempted to get the foremen of all the sub-\t\t\t\t\t\t\t\t\t\tcontractors. This respondent had no foreman upon the site at the time. The respondent argues,\t\t\t\t\t\t\t\t\t\tinasmuch as there was no representative of management on the walk around, that the inspection,\t\t\t\t\t\t\t\t\t\tat least insofar as it was concerned, was invalid. This tribunal finds this argument similarly with-\t\t\t\t\t\t\t\t\t\tout merit.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA majority of the Commission has decided that accompaniment required in section 8(e)\t\t\t\t\t\t\t\t\t\tof the Act is directory rather than mandatory and, therefore, this tribunal is constrained to follow\t\t\t\t\t\t\t\t\t\tthat decision. See Secretary v. Wright-Schuchart-Harbor Contractors, 2 OSAHRC 528, February\t\t\t\t\t\t\t\t\t\t15, 1973.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAssuming arguendo, however, that the mandate in 8(e) of the Act wherein the word\t\t\t\t\t\t\t\t\t\t\u2018shall\u2019 is used was mandatory rather than directory, this tribunal still is of the opinion that the\t\t\t\t\t\t\t\t\t\tcomplainant substantially complied with the 8(e) mandate. The compliance and health officer or\t\t\t\t\t\t\t\t\t\tLabor Department inspector who represents the Secretary during an inspection or an investiga-\t\t\t\t\t\t\t\t\t\ttion of the respondent’s premises cannot, in my opinion, personally refuse a walk around to any\t\t\t\t\t\t\t\t\t\trepresentative of management who wishes to accompany him. However, the respondent, if he\t\t\t\t\t\t\t\t\t\twishes to avail himself of this right, must have a foreman available upon the work site to accom-\t\t\t\t\t\t\t\t\t\tpany the inspector when he makes his inspection. Any other holding would result, particularly on\t\t\t\t\t\t\t\t\t\ta construction site, in the general foreman telling the subcontractors’ foremen to hide so that their\t\t\t\t\t\t\t\t\t\temployees could not be inspected. The Act, as well as accompaniment, also mandates inspection\t\t\t\t\t\t\t\t\t\twithout notice. When an inspector visits a construction work site without notice, he cannot bear\t\t\t\t\t\t\t\t\t\tthe additional burden of hunting down subcontractors’ foremen, wherever they may be, if they\t\t\t\t\t\t\t\t\t\tare not available upon the premises. In going to the general contractor, disclosing his credentials,\t\t\t\t\t\t\t\t\t\tdisclosing his identity and purpose, and requesting the general contractor to contact all of the\t\t\t\t\t\t\t\t\t\tsubcontractors’ foremen upon the job, and spending an hour waiting for the group to assemble, in\t\t\t\t\t\t\t\t\t\tmy opinion, is substantial compliance with the mandate of the Act. To ask the Secretary to do\t\t\t\t\t\t\t\t\t\tmore than that which his representative did in the instant cause would be to saddle him with an\t\t\t\t\t\t\t\t\t\tintolerable burden in effectuating the unequivocal mandate of the Congress, to wit, to reduce the\t\t\t\t\t\t\t\t\t\tindustrial holocaust which had endured for so long, until this Act was passed, and to diminish\t\t\t\t\t\t\t\t\t\tindustrial injury and death attendant to employment.\t\t\t\t\t\t\t\t\t\tThe respondent also moved to strike a paragraph of the complaint that added an addition-\t\t\t\t\t\t\t\t\t\tal item of 29 CFR 1926.104 to that item of the citation alleging a violation of 29 CFR\t\t\t\t\t\t\t\t\t\t1926.28(a). The respondent argues that this section could not be added in the manner performed\t\t\t\t\t\t\t\t\t\tand, accordingly, that the standard found at 29 CFR 1926.28(a) should be VACATED.\t\t\t\t\t\t\t\t\t\tAt the commencement of the trial the respondent moved to strike that section of the com-\t\t\t\t\t\t\t\t\t\tplaint amending the citation to add a violation of 29 CFR 1926.104 to that item alleging a viola-\t\t\t\t\t\t\t\t\t\ttion of 29 CFR 1926.28(a). The amendment in the complaint did not conform to Rule 33(a)(3) of\t\t\t\t\t\t\t\t\t\tthis Commission’s Rules, however the majority of the Commission, as late as April 2, 1975,\t\t\t\t\t\t\t\t\t\truled that such amendments are proper and cite Brennan v. OSAHRC and Bill Echols Trucking,\t\t\t\t\t\t\t\t\t\t487 Fed. 2d, 230, and National Realty & Construction Co., Inc. v. OSAHRC, 489 Fed. 2d, 1257,\t\t\t\t\t\t\t\t\t\tas precedent therefor. (See Secretary v. Mid-Plains Construction Co., OSAHRC Docket No.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t4584, April 2, 1975.) Such motion of the respondent, therefore, must be DENIED.\t\t\t\t\t\t\t\t\t\tIn any case, the respondent, if pleading surprise, was offered an opportunity for an ad-\t\t\t\t\t\t\t\t\t\tjournment prior thereto during the commencement of the trial and refused. Further, the respond-\t\t\t\t\t\t\t\t\t\tent was asked whether he could adduce proof of prejudice and adduced no such proof.\t\t\t\t\t\t\t\t\t\tAt the conclusion of the complainant’s case, and at the conclusion of the entire trial, the\t\t\t\t\t\t\t\t\t\trespondent moved to dismiss the citation, notification of proposed penalty and complaint on the\t\t\t\t\t\t\t\t\t\tgrounds that the complainant had not proven a prima facie case, which motion is DENIED. At\t\t\t\t\t\t\t\t\t\tthe end of the whole case, the respondent moved that the citation, notification of proposed penal-\t\t\t\t\t\t\t\t\t\tty and complaint be dismissed on the grounds that the complainant had not proven his case by a\t\t\t\t\t\t\t\t\t\tpreponderance of credible evidence of record and that motion, reserved at the time, is herewith\t\t\t\t\t\t\t\t\t\tDENIED.\t\t\t\t\t\t\t\t\t\tInsofar as the alleged violation is concerned, located at the elevator shaft, the Secretary\t\t\t\t\t\t\t\t\t\tpleaded alternatively. The complainant alleged in his complaint that the respondent violated that\t\t\t\t\t\t\t\t\t\tstandard found at 29 CFR 1926.28(a) coupled with that standard found at 104(a) of the same se-\t\t\t\t\t\t\t\t\t\tries. In addition thereto, he pleaded alternatively that the respondent violated that standard found\t\t\t\t\t\t\t\t\t\tat 29 CFR 1926.500(c)(1)(i), all involving the identical hazard, to wit, the employee Gambino\t\t\t\t\t\t\t\t\t\tgrouting a sill at the edge of the elevator shaft opening and the employee Mattola working some\t\t\t\t\t\t\t\t\t\tthree or four feet behind him. The hazard to be abated under either of the standards cited was\t\t\t\t\t\t\t\t\t\tidentical, to wit, the possibility of falling up to 20 floors or 180 feet through the elevator shaft\t\t\t\t\t\t\t\t\t\topening which is, in actuality, a wall opening. In my opinion, because of the three standards in-\t\t\t\t\t\t\t\t\t\tvolved, this respondent had alternative means of abating the hazard. He could have utilized a\t\t\t\t\t\t\t\t\t\tguard rail by the wall opening with a removable toeboard. If this equipment was used, the com-\t\t\t\t\t\t\t\t\t\tplainant’s representative testified that he would not have cited him for a violation. Again, in the\t\t\t\t\t\t\t\t\t\tevent that it was impossible to perform the job if utilizing the type of guard rail that had been\t\t\t\t\t\t\t\t\t\tavailable in this case, to wit, wherein the toeboard was not removable, then and in such case, the\t\t\t\t\t\t\t\t\t\trespondent had the option to abate the hazard by using personal protective equipment such as a\t\t\t\t\t\t\t\t\t\tsafety belt and lanyard on at least the employee, Gambino.\t\t\t\t\t\t\t\t\t\tIt would be unfair, however, to find the respondent in violation of all of the standards in-\t\t\t\t\t\t\t\t\t\tvolved inasmuch as it would give him violations that would affect his history and good faith in\t\t\t\t\t\t\t\t\t\tfuturo and would allow a repeated violation to be alleged for any of the standards violated. Ac-\t\t\t\t\t\t\t\t\t\tcordingly, this tribunal finds a violation of that standard found at 29 CFR 1926.28(a) coupled\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\twith 104(a) to exist.\t\t\t\t\t\t\t\t\t\tThe respondent argues that it was impossible to perform the grouting at the edge of the\t\t\t\t\t\t\t\t\t\televator shaft with the guard rails in place. The testimony adduced revealed that it would have\t\t\t\t\t\t\t\t\t\tbeen impossible to perform the grouting with the guard rail in place that was available, to wit,\t\t\t\t\t\t\t\t\t\tone made of studs without a removable toeboard. The Commission has held that impossibility of\t\t\t\t\t\t\t\t\t\tperformance is a viable defense and in a case involving alleged violations of 29 CFR\t\t\t\t\t\t\t\t\t\t1926.500(b)(1) and (d)(1) involving an elevator shaft and an allegation of failing to provide\t\t\t\t\t\t\t\t\t\tstandard railings at such shaft, such defense of impossibility of performance was upheld.\t\t\t\t\t\t\t\t\t\t(Secretary v. W. B. Meredith II, Inc., 9 OSAHRC 245.) While the latter decision was a unani-\t\t\t\t\t\t\t\t\t\tmous decision of the Commission, the proof adduced in the instant cause may well have been\t\t\t\t\t\t\t\t\t\tdifferent, inasmuch as the compliance officer testified that in the event a guard rail was used with\t\t\t\t\t\t\t\t\t\ta removable toeboard, then, and in such case, the work could have been performed once the toe-\t\t\t\t\t\t\t\t\t\tboard was removed. However, bearing in mind the precedential value of Secretary v. W. B. Mer-\t\t\t\t\t\t\t\t\t\tedith II, Inc., supra, this tribunal finds that in the alternative, a violation of that standard found at\t\t\t\t\t\t\t\t\t\t29 CFR 1926.28(a), coupled with 104(a), existed in this case, because certainly the use of safety\t\t\t\t\t\t\t\t\t\tbelts and laniards was an alternative method to abate the hazard existing in the instant cause, to\t\t\t\t\t\t\t\t\t\twit, that of falling 20 floors or up to 180 feet, a fall that could and would have resulted in death\t\t\t\t\t\t\t\t\t\tor serious physical harm. The respondent argues that the standard found at 28(a) is void and un-\t\t\t\t\t\t\t\t\t\tenforceable. Any such doubt in the mind of this tribunal has been resolved by the majority opin-\t\t\t\t\t\t\t\t\t\tion of the Commission in Secretary v. Hoffman Construction Company, OSAHRC Docket No.\t\t\t\t\t\t\t\t\t\t644, (January 31, 1975); Secretary v. Carpenter Rigging and Contracting Corporation, OSAHRC\t\t\t\t\t\t\t\t\t\tDocket No. 1399, (February 4, 1975), Secretary v. Eichleay Corp., OSAHRC Docket No. 2610\t\t\t\t\t\t\t\t\t\t(February 20, 1975); Secretary v. Dic-Underhill, a Joint Venture, Docket No. 2232, (February\t\t\t\t\t\t\t\t\t\t21, 1975). The latter decision involved the instant respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as the alleged violation of that standard found at 29 CFR 1926.552(b)(2) is con-\t\t\t\t\t\t\t\t\t\tcerned, the two employees of the respondent never were observed nearer than 40 feet from the\t\t\t\t\t\t\t\t\t\tmaterial hoist shaft and, accordingly, the respondent argues that they, therefore, were not truly\t\t\t\t\t\t\t\t\t\texposed to the hazard Evidence of record indicates that the bars on all floors were open from\t\t\t\t\t\t\t\t\t\taround 9:30 a.m. until noontime, some two and one-half hours. An imminent danger notice was\t\t\t\t\t\t\t\t\t\tposted around 12:40, which would make three hours of unguarded material hoist ways. In any\t\t\t\t\t\t\t\t\t\tcase, insofar as the 20th floor is concerned, the compliance officer’s uncontroverted testimony on\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tpage 162 shows that on that floor the material hoistway guard was in a vertical position and,\t\t\t\t\t\t\t\t\t\ttherefore, the hoistway was unguarded for at least two and one-half hours (Tr. p. 162). Insofar as\t\t\t\t\t\t\t\t\t\texposure is concerned, the United States Court of Appeals for the 2d Circuit stated that subpara-\t\t\t\t\t\t\t\t\t\tgraph 2 of 29 USC 654(a) requires employers to comply with occupational safety and health\t\t\t\t\t\t\t\t\t\tstandards promulgated under the Act. The Court stated that to prove a violation of OSHA, the\t\t\t\t\t\t\t\t\t\tSecretary of Labor need only show that a hazard existed and that the area of the hazard was ac-\t\t\t\t\t\t\t\t\t\tcessible to the employees of the cited employer or those of other employers engaged in a com-\t\t\t\t\t\t\t\t\t\tmon undertaking. This decision referred to a situation that was created by the respondent em-\t\t\t\t\t\t\t\t\t\tployer. In my opinion, however, the second Circuit would hold that the Secretary need only show\t\t\t\t\t\t\t\t\t\tthe existence of a hazard and the accessibility of employees of a cited employer to the hazard.\t\t\t\t\t\t\t\t\t\t(Secretary of Labor v. Occupational Safety and Health Review Commission and Underhill Con-\t\t\t\t\t\t\t\t\t\tstruction Corporation, Underhill Construction and Dic Concrete Corporation, individually, and\t\t\t\t\t\t\t\t\t\tas participants in a Joint Venture known as Dic-Underhill, Joint Venture, petitioners, 357, 417,\t\t\t\t\t\t\t\t\t\tMarch 10, 1975, Docket No. 74\u20131579, 74\u20131568.In the opinion of this tribunal, inasmuch as this\t\t\t\t\t\t\t\t\t\tcase arose in the 2d Circuit, the law of the case must follow the decisions of that Circuit.\t\t\t\t\t\t\t\t\t\tThe record indicates that two employees of the respondent were working on the 20th\t\t\t\t\t\t\t\t\t\tfloor of the building for at least two and on-half hours on the date of the inspection, during which\t\t\t\t\t\t\t\t\t\ttime the material hoist was unguarded, inasmuch as the material hoist bar was vertical rather than\t\t\t\t\t\t\t\t\t\thorizontal. While a violation thus was committed, in that respondent’s employees had access to\t\t\t\t\t\t\t\t\t\tthe area of the material hoist and, therefore, were potentially exposed thereto, the gravity was not\t\t\t\t\t\t\t\t\t\tnearly as serious as that of the prior violation discussed herein inasmuch as the employees were\t\t\t\t\t\t\t\t\t\tworking no nearer than 40 feet from the material hoist shaftway. The uncontroverted testimony\t\t\t\t\t\t\t\t\t\tof the complainant’s representative was that there was a possibility that the respondent’s employ-\t\t\t\t\t\t\t\t\t\tees sometime during working hours could have gone to the material hoist shaft for various rea-\t\t\t\t\t\t\t\t\t\tsons, e. g., to use the material hoist or look down the shaft or go there to smoke a cigarette. He\t\t\t\t\t\t\t\t\t\ttestified that inasmuch as there was access to the shaft, there was always a possibility that the\t\t\t\t\t\t\t\t\t\temployees could go to the shaft and possibly fall into it. This was sufficient access upon which\t\t\t\t\t\t\t\t\t\tto predicate a violation of the standard in issue, given the Second Circuit’s decision in Secretary\t\t\t\t\t\t\t\t\t\tv. Di-Underhill, supra.(See Secretary of Labor v. Air Conditioning Electrical Systems, Inc.,\t\t\t\t\t\t\t\t\t\tDocket No. 8055, mailed to the parties on April 2, 1975, and which will be filed with the Com-\t\t\t\t\t\t\t\t\t\tmission on April 22, 1975.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tInasmuch as the alleged violation of that standard found at 29 CFR 1926.100(a) is con-\t\t\t\t\t\t\t\t\t\tcerned, the standard requires that those employees working in areas where there is possible dan-\t\t\t\t\t\t\t\t\t\tger of head injury from impact, or from falling or flying objects, or from electrical shock and\t\t\t\t\t\t\t\t\t\tburns are to be protected by protective helmets. Testimony adduced in this case was that in the\t\t\t\t\t\t\t\t\t\tevent Mattola walked ten feet from where he was standing, he would have been under a floor\t\t\t\t\t\t\t\t\t\thole and in danger of being struck on the head by falling or flying items. In my opinion, this tes-\t\t\t\t\t\t\t\t\t\ttimony, uncontroverted by the respondent, constitutes sufficient evidence upon which to predi-\t\t\t\t\t\t\t\t\t\tcate a violation of the standard at issue. The evidence insofar as Gambino is concerned reflects\t\t\t\t\t\t\t\t\t\tlittle more than a technical violation insofar as his entrance into the shaftway is concerned. One\t\t\t\t\t\t\t\t\t\tinch of head entrance left little of his head in danger and certainly the helmet would not have\t\t\t\t\t\t\t\t\t\tprotected his shoulders from injury. However, in the event that Gambino finished his grouting, or\t\t\t\t\t\t\t\t\t\tgot up for some other reason and walked some 14 or 15 feet, he also would have been under a\t\t\t\t\t\t\t\t\t\tfloor hole in the floor above and would have been in danger of falling or flying objects. In my\t\t\t\t\t\t\t\t\t\topinion, while the possibility of injury, insofar as failure to wear a hard hat was concerned, was\t\t\t\t\t\t\t\t\t\tnot great, a violation was proven. An employer must do more than issue hard hats. An employer\t\t\t\t\t\t\t\t\t\thas the primary responsibility to see to it that its employees wear the hats or are disciplined\t\t\t\t\t\t\t\t\t\ttherefor. In the instant cause, while one employee had his hat on the floor with him, the other one\t\t\t\t\t\t\t\t\t\twas allowed to ascend to the 20th floor without even taking his hard hat with him. The Act does\t\t\t\t\t\t\t\t\t\tnot provide for punishment of employees, but this has not been shown to be so idiosyncratic an\t\t\t\t\t\t\t\t\t\tact that the employer may be excused from not requiring obedience to the standard. There is no\t\t\t\t\t\t\t\t\t\tevidence in the record that shows that this was an isolated act, or that any precautions whatsoev-\t\t\t\t\t\t\t\t\t\ter were taken by the employer to see to it that men wore hard hats in hard hat areas.\t\t\t\t\t\t\t\t\t\tInsofar as the penalties are concerned, the complainant has proposed penalties of $800.00\t\t\t\t\t\t\t\t\t\tfor each of the serious violations. In the opinion of this tribunal they are not of equal gravity and\t\t\t\t\t\t\t\t\t\tthey do not require equal penalties. Considering all of the elements of 17(j) of the Act, in my\t\t\t\t\t\t\t\t\t\topinion, the proposed penalty of $800.00 for the violation, alleged and found proven, of that\t\t\t\t\t\t\t\t\t\tstandard found at 29 CFR 1926.28(a), coupled with 104(a), is appropriate in the premises. The\t\t\t\t\t\t\t\t\t\tpenalty proposed, however, for violation of that standard found at 29 CFR 1926.552(b)(2) is of a\t\t\t\t\t\t\t\t\t\tlesser gravity than the violation previously discussed and a penalty of $500.00 is appropriate.\t\t\t\t\t\t\t\t\t\tInsofar as the alleged violation of 29 CFR 1926.100(a) found proven herein is concerned, the\t\t\t\t\t\t\t\t\t\tpenalty proposed in the amount of $200.00 is excessive, given the gravity and possibility of an\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\taccident disclosed in the proof of record. Accordingly, considering all the elements of 17(j) of\t\t\t\t\t\t\t\t\t\tthe Act, this tribunal finds a penalty of $100.00 appropriate in the premises.\t\t\t\t\t\t\t\t\t\tIt may be noted in passing that Counsel argued during the trial that violations that are not\t\t\t\t\t\t\t\t\t\tcontested by a respondent and become final orders of the Commission without a trial thereon,\t\t\t\t\t\t\t\t\t\tshould not be weighed in arriving at a penalty, without the respondent being allowed to put in\t\t\t\t\t\t\t\t\t\tproof concerning such uncontested final orders. In my opinion, this argument is of little merit.\t\t\t\t\t\t\t\t\t\tThe Act gives a respondent every chance to defend any allegation of violation and to have the\t\t\t\t\t\t\t\t\t\tSecretary relitigate each allegation of violation that becomes a final order of the Commission\t\t\t\t\t\t\t\t\t\twithout any contest whatsoever would create endless litigation and would destroy the efforts of\t\t\t\t\t\t\t\t\t\tthe complainant to enhance the furtherance of the Act and fulfill the intent of Congress. In the\t\t\t\t\t\t\t\t\t\tinstant cause, however, the complainant has not furnished this tribunal with any record of any\t\t\t\t\t\t\t\t\t\tallegations of violation that have become final orders without trial, so that this question is moot\t\t\t\t\t\t\t\t\t\tin the case at bar. Notice, however, is taken of cases that have become final orders after trial and\t\t\t\t\t\t\t\t\t\tare of record as such with the Commission.\t\t\t\t\t\t\t\t\t\tBased on the foregoing considerations, the Judge makes the following\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. At all times herein mentioned, this respondent was engaged in a business affecting\t\t\t\t\t\t\t\t\t\tcommerce, within the meaning of section 3 (5) of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970. The respondent was, on the date of the inspection at his workplace herein concerned, and\t\t\t\t\t\t\t\t\t\tat all of the times mentioned herein, an employee subject to the safety and health regulations\t\t\t\t\t\t\t\t\t\tpromulgated by the Secretary of Labor and referred to in the citation and complaint herein.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. The respondent, on the day of the inspection herein concerned, was in serious violation\t\t\t\t\t\t\t\t\t\tof that standard found at 29 CFR 1926.28(a), coupled with that standard found at 29 CFR\t\t\t\t\t\t\t\t\t\t1926.104(a).\t\t\t\t\t\t\t\t\t\t3. The respondent was in serious violation of that standard found at 29 CFR\t\t\t\t\t\t\t\t\t\t1926.552(b)(2).\t\t\t\t\t\t\t\t\t\t4. The respondent, on the day of the inspection herein concerned was in non-serious vio-\t\t\t\t\t\t\t\t\t\tlation of that standard found at 29 CFR 1926.100(a).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5. The penalty of $800.00, proposed for the alleged serious violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 CFR 1926.28(a), coupled with that standard found at 29 CFR 1926.104(a), found\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tproven herein, is appropriate in the premises herein.\t\t\t\t\t\t\t\t\t\t6. The penalty of $800.00, proposed for the serious violation of that standard found at 29\t\t\t\t\t\t\t\t\t\tCFR 1926.552(b), found herein, is inappropriate and must be modified so that a penalty of\t\t\t\t\t\t\t\t\t\t$500.00 is assessed therefor.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7. The penalty of $200.00 proposed for the alleged non-serious violation of 29 CFR\t\t\t\t\t\t\t\t\t\t1926.100(a), found proven herein, is inappropriate in the instant premises, and must be modified\t\t\t\t\t\t\t\t\t\tso that a penalty of $100.00 is assessed therefor.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn view of the foregoing, good cause appearing therefor, it is ORDERED that:\t\t\t\t\t\t\t\t\t\t1. The serious violation, alleged in the complaint, to wit, of that standard found at 29\t\t\t\t\t\t\t\t\t\tCFR 1926.28(a), coupled with that standard found at 29 CFR 1926.104(a) and the penalty pro-\t\t\t\t\t\t\t\t\t\tposed therefor in the sum of $800.00, are herewith AFFIRMED.\t\t\t\t\t\t\t\t\t\t2. The serious violation of that standard found at 29 CFR 1926.500(c)(1)(i), pleaded in\t\t\t\t\t\t\t\t\t\tthe alternative, is herewith VACATED.\t\t\t\t\t\t\t\t\t\t3. The serious violation alleged in the complaint, to wit, of that standard found at 29 CFR\t\t\t\t\t\t\t\t\t\t1926.522(b) is herewith AFFIRMED.\t\t\t\t\t\t\t\t\t\t4. The penalty in the sum of $800.00 proposed for the serious violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 CFR 1926.552(b), above AFFIRMED, is modified, and a penalty of $500.00 is AS-\t\t\t\t\t\t\t\t\t\tSESSED therefor.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5. The non-serious violation alleged in the complaint, to wit, of that standard found at 29\t\t\t\t\t\t\t\t\t\tCFR 1926.100(a) is herewith AFFIRMED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6. The penalty proposed, in the sum of $200.00, for non-serious violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 CFR 1926.100(a), is herewith MODIFIED, and a penalty in the sum of $100.00 is\t\t\t\t\t\t\t\t\t\tASSESSED therefor.\t\t\t\t\t\t\t\t\t\tSO ORDERED.\t\t\t\t\t\t\t\t\t\tDAVID G. ORINGER,\t\t\t\t\t\t\t\t\t\tJUDGE, OSAHRC\t\t\t\t\t\t\t\t\t\tDated: May 12, 1975\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t”