“Docket No. 88-2463 SECRETARY OF LABOR, Complainant. v. ED TAYLOR CONSTRUCTION CO., Respondent.OSHRC Docket No. 88-2463DECISION Before: FOULKE, Chairman; WISEMAN and MONTOYA,Commissioners. BY THE COMMISSION:This case has been before the Commission previouslyfollowing a remand by the United States Court of Appeals for the Eleventh Circuit.[[1]] Inits decision, the Eleventh Circuit affirmed two of the three citation items at issuebefore it, but remanded the case for further proceedings with respect to the third. Thatitem (citation no. 1, item 2) alleges a serious violation of 29 C.F.R. ? 1926.20(b)(1) inthat the Respondent, Ed Taylor Construction Company (\”Taylor\”), \”did notenforce and maintain a safety program which provided for frequent and regular inspectionsof jobsites, materials and equipment [with such inspections to be] made by a competentperson . . \” For the reasons stated herein, we conclude that CommissionAdministrative Law Judge (\”ALJ\”) Paul L. Brady did not err in finding andconcluding that Taylor failed to comply with the terms of the cited standard. We thereforeuphold his decision to affirm the contested citation item. However, we modify his assessedpenalty of $200 and assess a more appropriate penalty of $500 for this serious violation.Factual BackgroundThe citation at issue resulted from OSHA’sinvestigation of multiple fatalities at the Central Park office complex constructionproject in Atlanta, Georgia. This project involved the erection of a 20-story officebuilding and a multi-level parking garage. Taylor is a general contractor that normallylimits its operations to the erecting of commercial structures, such as multi-storybuildings. On this project, however, another general contractor had been given thecontract for constructing the office building and parking garage. Taylor’s separatecontract with the owner was a \”hardscape\” contract. Thus, it was responsible forthe concrete landscaping work on the project, including most notably the construction of alarge artificial lake or pond at the. bottom of the hill on which the of office complexwas being built.Because Taylor had no prior experience under a\”hardscape\” contract, it did almost all of its work on this project throughsubcontractors, keeping only a skeletal staff of approximately three of its own employeesat the site. One of Taylor’s subcontracts was with J & R Excavation, Inc., which hadresponsibility for constructing a \”special purpose access shaft\” or\”manhole.\” The sole purpose of this shaft was to provide access to a valve atthe bottom of the shaft. This valve was connected to a pipe that linked the artificial,concrete-lined lake to a storm drainage system. When the valve was opened, it allowed thelake to be drained so that the lake could be cleaned or repaired. Closing the valve madeit possible to fill the lake.The access shaft that J & R built was 24 feetdeep and 4 feet in diameter. It had a single opening at the top that was 24 inches indiameter, but a manhole cover was placed over that opening, thereby creating a completeenclosure. Inside, the shaft was gravel-based, concrete-lined, and empty, except for thevalve at the bottom and an \”access ladder\”‘ (apparently rungs attached to theconcrete wall) leading down to the valve. Because the shaft was not connected to a seweror otherwise expected to contain liquids, the witnesses at the hearing consistentlycharacterized it as a \”dry shaft\” as opposed to a \”sanitary manhole. [[2]] On this record, it appears likely that Tayloremployees only entered the manhole on two occasions. The manhole was constructed by J& R in January 1988. Since Taylor was responsible for overseeing this work, projectmanager Giannini was probably correct in speculating (in a written witness statement givento OSHA) that project superintendent Garren had entered the manhole in January to assurehimself that it was being (or had been) constructed in accordance with the contractualspecifications.[[3]] Thereafter, it seems likely that the manhole remained closed from thetime it was completed in January until Garren and two other Taylor employees entered it onAugust 19, 1988 There is no evidence in this record to suggest otherwise.In the interim between these two entries, the work ofTaylor and its subcontractors under the \”hardscape\” contract was basicallycompleted in March or April, when the contractors finished backfilling around the manhole.Taylor therefore removed its regular work crew from the project site. However, at thattime, it was not possible for Taylor or anyone else to fill the lake, because the countyhad imposed significant water use restrictions in response to a drought. Theserestrictions were lifted in August 1988.Upon being notified of this fact, Taylor put togethera special work crew, consisting of three of its own supervisory employees and twotemporary \”day laborers,\” which returned to the Central Park worksite in earlyor mid-August to finish the remaining work on the project. Specifically, the crew wasinstructed to examine, clean, and repair \”a rather huge black liner\” thatcovered the bottom of the lake. It was then expected to take the steps necessary to fillthe lake with water, including descending to the bottom of the manhole shaft to close thedrain valve and turning on a pump to activate the flow of the water.While there is no eyewitness account in this recordof the events leading up to the worksite fatalities, it seems clear from the evidence thatwas introduced that the accident occurred when assistant project superintendent Geeslinwas sent into the manhole to close the valve, so that the lake could be filled. Geeslin’sautopsy report strongly suggests that, while he was descending into the manhole, he lostconsciousness due to a lack of oxygen; fell from the access ladder; and, as a result,suffered a broken neck. According to their autopsy reports, the other two deceasedemployees, project superintendent Garren and labor foreman Bohler, were then similarlyovercome when they attempted to rescue Geeslin.Subsequently, the medical examiner determined thatall three of these employees had died as a result of their exposure to an oxygen-deficientatmosphere (i.e., \”asphyxiation\” caused by a \”vitiated\”atmosphere). For the first two employees into the shaft, the examiner also listed a secondcause of death–\”immersion in water.\” Thus, the autopsy reports demonstratethat, at the time of the fatalities, there was an undetermined amount of mud and water atthe bottom of the shaft. We might assume that these conditions played some role in thedevelopment of the oxygen-deficient atmosphere inside the manhole. However, this wouldonly be speculation on our part. Neither party made any effort to establish how the waterand mud got into this \”dry shaft\” or how the oxygen-deficient atmosphere wascreated.The Law of the CaseAs a result of its investigation of this accident,OSHA issued, and Taylor later contested, a citation alleging three serious violations ofthe Act, each based on the circumstances surrounding the accident. OSHA further proposedpenalties of $1000 for each of these alleged violations. As indicated at the outset ofthis decision, two of these citation items are no longer before us because they have beenaffirmed by the United States Court of Appeals for the Eleventh Circuit. Ed TaylorConstr. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991). That decision alsoresolved several of the factual and legal issues that had previously been in disputebetween the parties, and the court’s resolution of those issues is now binding on us as\”the law of the case.\” See, e.g., American Cyanamid Co., 9 BNAOSHC 2052,1981 CCH OSHD ? 25,504 (No. 77-3752,1981); Stewart-Warner Corp. (I.B.E.W.,Local 1031), 8 BNA OSHC 1316,1980 CCH OSHD ? 24,472 (No. 78-5910-E, 1980) (lead andconcurring opinions).Citation no. 1, item 3, alleged a violation of 29C.F.R. ? 1926.21(b)(6)(i) in that employees at the Central Park worksite were required toenter into a \”confined space,\” as defined in ? 1926.21(b)(6)(ii), even thoughthey had not been instructed as to the hazards involved in confined space entry, thenecessary precautions to be taken, and the use of personal protective and emergency rescueequipment.[[4]] As noted by the Eleventh Circuit, Taylor did not contest the allegationthat it had failed to provide such instructions. 938 F.2d at 1268. That factual issue istherefore settled in these proceedings. In addition, the court’s affirmance of this itemconstitutes a binding legal conclusion that the manhole in question was a \”confinedspace\” as defined by the Secretary, see supra note 4, i.e., it wasa \”space having a limited means of egress, which [was] subject to the accumulation oftoxic or flammable contaminants or [which had] an oxygen deficient atmosphere.\”More specifically, in affirming this citation item,the court reasoned as follows: (a) the manhole at issue was a \”confined space\”because it was an \”open top space more than 4 feet in depth\” and such spaces areexpressly included within the standard’s coverage; (b) because the manhole fell withinthis category, the standard itself establishes that it was subject to the accumulation oftoxic contaminants or the creation of an oxygen-deficient atmosphere; and, implicitly, (c)independent proof of this fact by the Secretary was therefore not necessary. 938 F.2d at1272. Based on this reasoning, the court rejected Taylor’s principal defense to thiscitation item, i.e., its claim that \”the manhole was not a ‘confined space’because experienced contractors in the Atlanta area did not recognize such a manhole as aspace subject to the accumulation of toxic contaminants or having an oxygen-deficientatmosphere.\” Id. In essence, the court held that, because of the expressterms of the standard, it was \”irrelevant\” whether employers in Taylor’sindustry would have recognized that this particular manhole was one that was subject tothe creation of a toxic, flammable, or oxygen-deficient atmosphere.In affirming the second of the three citation itemsbefore it, the court employed similar reasoning. Citation no. 1, item 1, alleged aviolation of section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), in that Taylor failed toadopt and implement a \”confined space entry procedure\” before its employeesentered the manhole on August 19, 1988.[[5]] Specifically, the Secretary charged thatTaylor did not test the atmosphere (for air contaminants and oxygen deficiency) beforepermitting its employees to enter the manhole, did not have emergency rescue equipmentavailable, and did not provide mechanical ventilation. Again, the Eleventh Circuitcorrectly noted that Taylor did not challenge the Secretary’s factual claims, and thesefactual matters are therefore settled. 938 F.2d at 1268. In addition, the court’saffirmance of this citation item constitutes a binding legal conclusion that the confinedspace entry hazard created by the employees’ entry into the shaft was a \”recognizedhazard\” within the meaning of section 5(a)(1).In defending against this charge, Taylor had soughtto prove that the hazard at issue was not \”recognized\” by its industry. Itdefined its industry as those employers that are engaged in commercial construction butnot utility work. It then elicited considerable testimony at the hearing to the effectthat non-utility construction employers do not \”recognize\” the hazard created by\”dry shaft\” manholes. See id. The court, however, held in essence thatit could give no weight to this testimony because of the Secretary’s adoption of theconfined space entry hazard standard cited in item 3 and discussed above. See supranote 4. In the court’s view, this standard gave the entire construction industryconstructive notice \”that any manhole, ‘sanitary’ or ‘dry,’ that is twenty-four feetin depth and four feet in diameter is a potential hazard.\” Id. at 1272.Therefore, it reasoned, whether employers in Taylor’s industry actually recognized thehazard is \”irrelevant\” since the constructive knowledge provided by the standardrendered the hazard \”recognized\” as a matter of law. Id.The third contested citation item at issue before thecourt was the alleged violation of 29 C.F.R. ? 1926.20(b)(1) that is now before us onreview. The cited standard and its companion, which is incorporated by reference, provideas follows: ? 1926.20 General safety and health provisions. (b) Accident prevention responsibilities. (1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part. (2) Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.The key term \”competent persons\” isdefined, at 29 C.F.R. ? 1926.32(f), as follows: (f) Competent person means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them. At the hearing, the OSHA compliance officer explained the basis of this allegation (citation no. 1, item 2), as follows: The employer didn’t have frequent and regular inspections which would have pointed out to them during the course of their inspections that they were going to have to enter a 24 vertical foot manhole that had been closed up, according to Mr. Giannini, since January. . . and held the possibility of having an oxygen deficient atmosphere or other problems. . . . . [A \”competent person\” within the meaning of the cited standard] who looked at [the] 24 vertical foot manhole with a 2 foot wide opening at the top that has been closed 8 months, as I was told it was closed, from January to mid-August, would have reason to believe that there definitely could be oxygen deficiency …. [That person would have tested the atmosphere]. They would have [thereby] determined that there was an oxygen deficiency and I assume that they would have taken some corrective measures. . . . . [W]ith regard to the manhole, they knew at least the day before that they would be entering, the day of the accident would be the last day on the job site. The frequent and regular inspection should have at least pointed out at that time that they were going to enter into the 24 foot manhole and that precautions would need to be taken.In fact, as the witness suggested, it is undisputedon this record that Taylor knew, prior to August 19, 1988, that it would have to send anemployee into the manhole to close the valve so that the lake could be filled. Bothcompany president O’Neill and project manager Giannini acknowledged at the hearing thatthey were personally aware of this necessity prior to the fatal accident.In his decision in this case, Commission Judge Bradyaffirmed all three of the citation items that have been described above. In its decision,the Eleventh Circuit formulated Judge Brady’s holding with respect to this remainingcitation item–citation no. 1, item 2–as follows: \”The ALJ found that while Taylorprovided for regular inspections of the Central Park site, the persons conducting theinspections were not ‘competent’.\” As discussed more fully in our Order on Remand ofOctober 18, 1991, the court set aside Judge Brady’s finding and remanded the case to usfor further proceedings with respect to item 2.Strictly speaking, the court’s mandate to us waslimited to a requirement that we give \”consideration\” to Taylor’spreviously-filed petition for discretionary review (PDR) as it related to item 2. This wedid prior to issuing our Order on Remand, as we noted in the order itself. Nevertheless,in our review of this case, we have also given considerable weight to the guidanceprovided by the court in its discussion of the merits of this citation item.As the following passage indicates, the EleventhCircuit clearly viewed the central unresolved issue with respect to item 2 to be a factual(or evidentiary) issue rather than a legal issue: At the hearing, OSHA presented uncontested testimony that none of the inspections identified the manhole in question as a potential hazard. That, however, was the only evidence that inspectors were incompetent. There was some evidence that the inspectors were well trained and fully competent. While the Secretary certainly presented sufficient evidence to permit the Review Commission to find that the inspectors were not \”competent\” within the meaning of the regulations, we could not so find as a matter of law ….938 F.2d at 1271. Consistent with the court’s view,we have fully examined the entire record, including the evidence identified by the court,to determine whether Judge Brady’s key finding–that the inspectors who conducted Taylor’sworksite inspections were not \” competent\”–is supported by the preponderance ofthe evidence. See id. at 1270 (distinguishing between Commission and appellatecourt review of factual findings). For the reasons stated herein, we conclude that therecord does support the judge’s finding, and we therefore reinstate that finding.[[6]]The Competence of Taylor’sInspectorsIn resolving this issue, our starting point must bethe Secretary’s definition of \”competent person,\” which we have quoted above. Inpertinent part, ? 1926.32(f) provides that a \”competent\” person is one\”who is capable of identifying existing and predictable hazards in the surroundingsor working conditions.\” Here, there can be no doubt that there was an \”existing… hazard\” at Taylor’s workplace within the meaning of this definition. The EleventhCircuit’s decision establishes, as the law of the case, that Taylor’s three employees wereexposed to a confined space entry hazard when they entered the special purpose accessshaft at the Central Park office complex project, initially for the purpose of closing thevalve at the bottom of the shaft.The question therefore becomes whether that hazardwas \”predictable.\” Again, the Eleventh Circuit’s decision clearly points to theproper resolution of this issue. As indicated, the court expressly held that the hazard inquestion was a \”recognized hazard\” within the meaning of section 5(a)(1) of theAct. It also concluded that the entire construction industry, and not justutility contractors, had been given constructive notice of this hazard by the Secretary’sadoption of 29 C.F.R. ? 1926.21(b)(6), the standard that requires constructioncontractors to train their employees in the recognition and avoidance of such confinedspace entry hazards. See supra note 4. However, the court stopped short offinding that the hazard was predictable.We must determine whether the hazard was predictablebased on the evidentiary record. As indicated previously, both the company president andthe project manager conceded at the hearing that they were personally aware, prior toAugust 19, 1988, that it would eventually be necessary to send a work crew back to theconstruction site to fill the lake and that, as part of this process, a Taylor employeewould have to enter the manhole to shut the valve. In addition, project manager Gianniniat least was aware that the manhole had not been opened since completion of the concretestructure in January. Given this evidence, and combining it with the constructive noticeprovided by the OSHA standards, we have no difficulty in finding and concluding that thehazard created by the employees’ entry into the 24-foot-deep manhole was\”predictable.\” As the compliance officer stated, in her unrebutted opiniontestimony, a \”competent person\” within the meaning of the cited standard\”who looked at [the] 24 vertical foot manhole with a 2 foot wide opening at the topthat has been closed … from January to mid-August, would have reason to believe thatthere definitely could be oxygen deficiency.\”Turning again to the language of ? 1926.32(f), wemust now determine whether the persons responsible for conducting Taylor’s workplaceinspections at the Central Park construction project site–company president O’Neill, vicepresident and safety director Fleitz, project manager Giannini, and project superintendentGarren–were \”capable of identifying\” this \”existing and predictable\”confined space entry hazard. As the Secretary correctly points out in her review brief,the testimony of Taylor’s own witnesses clearly establishes that they were not. Cf.Capform, Inc., 13 BNA OSHC 2219, 2221-22, 1987-90 CCH OSHD ? 28,503, p. 37,776 (No.84-556, 1989), aff’d without published opinion, 901 F.2d 1112 (5th Cir. 1990)(\”Capform itself appears convinced that [its jobsite superintendent] Pelletier wasnot a ‘competent person’ [since it] relies on Pelletier’s testimony that he had never hadresponsibility for inspecting the condition of soil in excavations and argues thatPelletier ‘lacks . . . expertise in soils-related areas’.\”) (ellipsis in original).In particular, we rely upon the following testimonyas support for our finding that Taylor’s workplace inspectors were not \”capable ofidentifying\” the confined space entry hazard presented by the special purpose accessshaft. Company president O’Neill testified that Taylor had had no prior experience withentering manholes like the one at issue in this case. He further testified that, to thebest of his knowledge, no employee of Taylor had been aware prior to August 19 that themanhole at the Central Park worksite presented an asphyxiation hazard or any other safetyproblem. More specifically, he asserted, nobody in the company had been aware of thepresence of an oxygen-deficient atmosphere in the manhole or was knowledgeable generallyabout confined spaces.Concerning his own personal knowledge, O’Neillclaimed that he had been unaware prior to August 19 that OSHA considered \”dryshaft\” manholes to be confined spaces and that OSHA required atmospheric testing andprotective equipment when employees entered such shafts. He further stated that he had noteven been aware that an oxygen deficiency could be discovered in a manhole by using aninstrument to conduct atmospheric testing. The company president acknowledged hisawareness of the hazard of methane gas in sewers, but stated that he had had no suchconcern about the dry shaft at issue here. He testified that he had not noticed anythingduring his workplace inspections that gave him cause for concern about the manhole, but healso admitted that he had probably not even looked at the shaft since \”we weretotally unaware of the confined space issue.\”Project manager Giannini’s testimony about his levelof awareness prior to the accident is similar. He admitted that, during the course of hisexperience, he had become aware of the hazards associated with sanitary sewer manholes.Thus, he was aware of the possibility of air contamination or reduced oxygen levels in somemanholes. However, he strongly denied that he had had any awareness, prior to August 19,that there was a possibility that air contaminants could accumulate in the Central Parkmanhole or that that particular manhole otherwise posed a hazard to employees. [[7]] The testimony outlined above compels the conclusionthat the employees designated by Taylor as its workplace safety inspectors on the CentralPark project were not \”capable of identifying\” the confined space entry hazardpresented by the special purpose access shaft.[[8]] We therefore find that those employeeswere not \”competent persons\” within the meaning of ? 1926.20(b)(2).In so finding, we expressly reject Taylor’s argumentson review. Taylor first contends that the Secretary’s evidentiary showing in this case isinadequate to sustain her burden of proving a violation of the cited standard under\”clear Commission precedent.\” In support of this claim, the employer cites anddiscusses six unreviewed administrative law judge decisions that, taken as a whole, standfor the following propositions: (a) the Secretary bears the burden of proving an allegedviolation of section 1926.20(b) (1) & (2); (b) because these standards are directed tothe soundness of an employer’s safety program and\/or its inspection program, the Secretarymust prove a deficiency or defect in the employer’s safety or inspection program in orderto establish a violation; and (c) the Secretary’s burden is not met merely by showing theoccurrence of an accident or the existence of hazardous conditions at a worksite becauseeven the best safety program cannot insure against such events.While we do not disagree with any of these basicprinciples, see R & R BuiIders, Inc., 15 BNA OSHC 1383, 1991 CCH OSHD ?29,531 (No. 89-282, 1991), we reject Taylor’s argument in this case for two reasons.First, it is well settled that, contrary to Taylor’s assertion, the cases it has cited donot constitute precedent binding on the Commission, because they are all unreviewedjudge’s decisions. E.g., Mosser Constr. Co, 15 BNA OSHC 1408, 1411 n.3, 1992 CCHOSHD ? 29,546, p. 39,902 n.3 (No. 89-1027, 1991). More importantly, the cases cited byTaylor are all distinguishable from the case that is now on review.As the Secretary correctly points out in her reviewbrief, the fatal flaw in Taylor’s reasoning is the employer’s claim that the allegedviolation at issue here is based solely \”on the existence of the substantiveviolations involving the manhole [i.e., the two violations already affirmed bythe court] and the accident itself\”: [S]eparate and apart from evidence that the manhole was not inspected and that an accident occurred, there is ample record evidence that respondent’s supervisory personnel who conducted the inspections did not know that dry manholes could be dangerous. Indeed, it was Taylor’s defense that neither it nor other contractors knew about the hazard. It is this admitted lack of knowledge on the part of respondent’s inspectors which proves that the inspectors were not \”competent persons\” within the meaning of the standard. We fully agree.Also without merit is Taylor’s contention that thecitation item must be vacated because the evidence it introduced in its defenseestablishes that it had adopted and implemented a workplace inspection program prior tothe accident, as required under the cited standard, while \”the ALJ’s finding [ofnoncompliance] is based solely on the fact that Taylor’s acknowledged comprehensive safetyprogram did not address one particular hazard.\” There is indeed some basis for thisclaim. Thus, it is undisputed on this record that, as a general matter, Taylor had alreadyadopted and implemented an adequate safety program prior to August 19, 1988, including aprogram of regular and frequent workplace inspections. Accordingly, we must emphasize thatour holding in this case should not be construed as a wholesale condemnation of Taylor’ssafety program or as a broad ruling on the overall competency of Taylor’s safetyinspectors. [[9]] Instead, this case was tried, and it has been decided, on a far narrowertheory.In summarizing her arguments on review, the Secretaryalleged that \”Taylor violated 29 C.F.R. 1926.20(b)(1) because its inspection programas well as the competence of its inspectors did not extend to the hazard of asphyxiationin dry manholes, which was responsible for the deaths of three of respondent’semployees.\” We have agreed with this argument as it relates to the competence of thesafety inspectors. Under the clear terms of section 1926.32(f), the fact that Taylor’sworkplace safety inspectors were not \”capable of identifying\” an \”existingand predictable\” hazard at the Central Park worksite requires us to find that theywere not \”competent persons\” within the meaning of section 1926.20(b)(2). Thefact that they may have been well qualified to identify other safety hazards at thatworkplace, or at other workplaces, does not preclude us from entering this finding. On thecontrary, applying the Secretary’s standards as she has written them to the facts of thiscase neither requires us nor permits us to make a general assessment of the qualificationsof Taylor’s employees (in terms of their training and experience) to be safety inspectors.We accordingly have made no effort to perform such an evaluation.For the reasons stated, the judge’s finding thatTaylor failed to comply with the competency requirement of section 1926.20(b)(2), asincorporated into the cited standard, section 1926.20(b)(1), is affirmed.Penalty AssessmentThe Secretary proposed a penalty of $1000 for thealleged serious violation of 29 C.F.R. ? 1926.20(b)(1). Although he did not state anybasis for his determination, other than a general reference to the statutory criteria forpenalty assessment, [[10]] Judge Brady assessed a penalty of only $200. We conclude,however, that that amount is inadequate in view of the gravity of the violation and theemployer’s lack of good faith, and we therefore assess a penalty of $500. The gravity ofthis serious violation, see section 17(k) of the Act, 29 U.S.C. ? 666(k), is clear. Asthe compliance officer credibly testified, if Taylor had provided a \”competentperson\” to inspect the Central Park office complex worksite, that inspector in alllikelihood would have foreseen that an employee was eventually going to be exposed to aconfined space entry hazard and would have taken the necessary precautions, includingatmospheric testing and the providing of personal protective and emergency rescueequipment, to insure that an injury did not occur when the employee entered the manhole.Three wholly preventable workplace fatalities would thereby have been avoided. As for thestatutory \”good faith\” factor, we must balance the commendable measures Taylorhas taken to establish a company-wide safety program, including a program of regular andfrequent workplace inspections, with the clearly inadequate measures taken to implementthat program at the Central Park worksite. On balance, we conclude that this statutorycriterion\u00a0 weighs against Taylor. The employer’s efforts to insure the safety of itsemployees at this particular worksite were clearly deficient.OrderAccordingly, we affirm citation no. 1, Item 2. Weassess a penalty of $500 for this serious violation of the Act.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: June 18, 1992FOOTNOTES: [[1]] See Commission’s order on Remand (Oct.18,1991).[[2]] The repeated references in the autopsy reportsof the deceased employees to \”sewers\” and \”sewer shafts\” must beviewed, in light of the record as a whole, as factual errors. The clear preponderance ofthe evidence establishes that this manhole was not a sewer shaft or in any way connectedto a sewer.[[3]] Both Giannini and Garren were long-timeemployees of Taylor. Project superintendent Garren was one of the three employees who diedin the accident at issue. He had been the highest-level supervisory employee at theworksite on a full-time basis, with authority over all of Taylor’s employees andsubcontractors. He had also been the Taylor employee who bore primary responsibility foronsite project safety at the Central Park worksite. These duties included monitoring jobsafety on a daily basis. Project manager Giannini, who also had been assigned safetyresponsibilities on this project, was Garren’s supervisor. Giannini’s duties, however,were not restricted to this one project, and his contact with the site was thereforelimited to occasional visits, \”usually a couple of times a week.\”[[4]] The cited standard and its critical definitionsection provide, as follows: ? 1926.21 Safety training and education. ……. (b) Employer responsibility– …… (6)(i) All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required…. (ii) For purposes of paragraph (b)(6)(i) of this section, \”confined or enclosed space\” means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or enclosed spaces include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs, vaults, and vessels. (Emphasis added).[[5]] Section 5(a)(1), the Act’s \”general dutyclause,\” requires each employer to \”furnish to each of his employees employmentand a place of employment which are free from recognized hazards that are causing or arelikely to cause death or serious physical harm to his employees.\”[[6]] In her review brief, the Secretary correctlyargues that ? 1926.20(b)(2), the standard that is incorporated by reference into thecited standard, ? 1926.20(b)(1), has \”[t]wo basic aspects\”: First, the standard prescribes what must be done, i.e., \”frequent and regular inspections of job sites, materials, and equipment.\” Second, the standard prescribes who is to do it, i.e., \”competent persons.\” (Emphasis in the original). Taylor, she argues, has not complied with either of then requirements. Our conclusion, infra, that Taylor violated the \”who\” requirement of ? 1926.20(b)(2) fully supports our affirmance of the citation item at issue. Accordingly, we need not reach the Secretary’s alternative argument that Taylor also violated the standard’s \”what\” requirement. [[7]] In view of this unrebutted testimony, we agreewith Taylor’s argument on review that Judge Brady erred in finding that Giannini was\”aware of the possibility of air contaminants and reduced oxygen in the manhole\”(emphasis added). That finding is hereby set aside.[[8]] The fact that the three deceased employees wereall supervisors–indeed, as indicated supra note 3, Garren was the managementrepresentative who had primary responsibility for safety at this worksite–providesfurther support for our conclusion. That these three employees all entered the shaftwithout taking any precautions whatsoever is strong circumstantial evidence that they werenot \”capable of identifying\” the hazard to which they were exposing themselves.[[9]] During the hearing, Taylor attempted tointroduce into evidence several documents that had been identified as safety-relatedmaterials distributed by the company to its project superintendents. The judge rejectedthose documents as exhibits. Nevertheless, after reviewing them, he noted for the recordthat Taylor had \”an extensive safety program.\” Based on our review of theevidence, we agree with this assessment.[[10]] Section 17(j) of the Act, 29 U.S.C. ? 666(j),provides that \”[t]he Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to the appropriateness of the penaltywith respect to the size of the business of the employer being charged, the gravity of theviolation, the good faith of the employer, and the history of previous violations.\””