Docket No. 119

JASPER CONSTRUCTION, INC.

OSHRC Docket No. 119

Occupational Safety and Health Review Commission

August 1, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On July 25, 1972, Judge Harold A. Kennedy issued his recommended decision and order affirming the citation issued to respondent and the $500 penalty proposed therefor.

On August 14, 1972, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), former Commissioner Alan F. Burch directed that the Judge's decision be reviewed by the Commission.

The Commission has reviewed the entire record in this case. The Judge's proposed decision and order are adopted insofar as they are consistent with the following determination.

Respondent was cited on October 4, 1971, for an alleged "serious violation" of section 5(a)(1) of the Act, the so called general duty clause, which provides that each employer:

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

The citation alleges that an inspection of respondent's workplace at Science Building #2 in San Jose, California on September 2, 1971, revealed "inadequate guarding of 5 ft. X 20 ft. hole in roof." A penalty of $500 was proposed.

Evidence adduced at the hearing shows that the hole remained open for about one month. During this time, it was guarded solely by a concrete parapet wall approximately four feet in height which went about half way around the hole. On or about August 23, 1971, two of respondent's employees were directed by respondent's job superintendent to go to the roof and cover the hole as it was beginning to rain. These employees covered the hole with kraft or tar paper, placing pieces of two inch thick insulating material on the paper to hold it in place. This covering would not support the weight of an average man. Two days later a lather walking across the then hidden hazard fell through the hole to a floor about 30 feet below, sustaining severe injuries which required extended hospitalization.

On rendering his decision, the Judge affirmed the citation and proposed penalty of $500 noting that "Any employee working in the area of the hole after it was covered with light paper would have been particularly subject to the statutory risk."

The Secretary's representative computed the proposed penalty of $500 by reducing the initial $1,000 unadjusted penalty, the maximum allowable for serious violations of the Act (section 17(b)), by 20 percent because respondent had no history of previous violations; 20 percent for good faith and 10 percent for size. In computing the 10 percent reduction for the size of respondent's business the compliance officer considered only that respondent had 20 or less employees on the job. While affirming the $500 penalty proposed by the Secretary, Judge Kennedy specifically disassociated himself from the "mathematical formula" utilized by the Secretary in arriving at the amount of the proposed penalty. We are thus left to conjecture as to what role, if any, the Secretary's rationale for determining size of the business of the employer charged with the violation had in the Judge's thought processes in affirming the penalty proposed by the Secretary.

In determining the appropriate penalty to be assessed for a violation, the Commission is directed, in section 17(j) of the Act, to consider the size of respondent's business, the gravity of the violation, respondent's good faith, and history of previous violations.

The Secretary, in an attempt to achieve uniformity of proposed penalties, has devised a "formula," or guidelines, for use by compliance officers in the field. The Commission recognized the difficulties inherent in this task in Secretary of Labor v. Nacirema Operating Co., Inc., The Commission also recognizes that the statutory considerations are not necessarily to be given the same weight under different factual situations. Secretary of Labor v. National Realty and Construction Co., Inc.,

We believe that "size," as used in section 17(j) must be determined by gross dollar volume and the total number of persons employed. Both of these elements must be considered when determining size for purposes of assessing an appropriate penalty. n1

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n1 In certain cases the employer's overall financial condition may be considered also. Secretary of Labor v. Colonial Craft Reproductions, Inc.,

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In 1971, respondent grossed approximately $6.5 million. Respondent's president testified that at the time of the alleged violation; respondent "very likely" employed more than 100 persons. The compliance officer considered only the number of those on the job at the site of the alleged violation. This relates more properly to exposure of employees to the hazard -- an element of gravity, rather than to size of business.

Based on the above criteria concerning good faith, history and size we find the proposed penalty of $500 to be appropriate.

Accordingly, it is ORDERED that the citation for serious violation is affirmed and a penalty of $500 is assessed.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I concur in the result but see no need for the Commission to consider once again the complainant's formula for proposing penalties. It has been consistently discredited by this Commission, Secretary v. Nacirema Operating Company, Inc., Secretary v. Dreher Pickle Company,

When addressing itself to the issue of penalty determination, the Commission stated in the last cited case, supra:

When this issue is before the Commission, the Secretary and the employer are adverse parties. It would be contrary to the impartiality which the Commission is required to afford the parties, pursuant to section 10(c) of the Act, to permit the evidence and argument on monetary penalties of one adverse party to have any special status or be allowed any greater weight than that of other parties to the action.

In view of that correct statement of the law coupled with Judge Kennedy's specific rejection of complainant's formula, this decision's expression of interest in the Secretary's rationale for "determining" size of business is parenthetical.

There is a process available for obtaining further elaboration from a Judge on any matter he considered in arriving at his decision. It is a legitimate matter of interest. What one of the parties to a case considered in making a proposal to the Commission, however, is and should be of no interest whatsoever to this tribunal.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: Respondent Jasper Construction, Inc. of Santa Cruz, California was cited on October 4, 1971 by the Secretary of Labor for an alleged "serious violation" of the general duty clause of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq. ).

Section 5(a)(1), the general duty clause, provides that each employer:

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

Section 17(k) of the Act provides that:

. . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

The citation alleges that an inspection of Respondent's workplace at Science Building #2 in San Jose, California on September 2, 1971 revealed "inadequate guarding of 5 ft X 20 ft hole in roof." A proposed penalty of $500 was assessed for the alleged violation as indicated in the Secretary's notification dated October 15, 1971. By letter dated October 21, 1971 (filed with the Commission on October 26, 1971) Respondent advised that it was contesting the citation and the proposed penalty.

The Secretary's complaint, filed on November 1, 1971, alleges, among other things:

Respondent uses equipment, materials and supplies manufactured outside of the State of California and is engaged in the business affecting commerce within the meaning of Section 3(5) of the Act;

That Respondent violated Section 5(a)(1) of the Act "in that respondent caused and permitted employees to work on a roof which contained a 5 ft. X 20 ft. hole which was inadequately guarded;"

That the violation was a serious one within the meaning of Section 17(k) of the Act "in that there was a substantial probability that death or serious physical harm could result from the condition alleged to exist, or the practices, means, methods, operations or processes which are alleged to have been adopted or in use in the aforesaid place of employment, and respondent knew, or could with the exercise of reasonable diligence have known of the presence of the violation;" and

Approximately four employees were affected by the alleged violations, two being represented by Local Union 144 of the Wood, Wire and Metal Lathers International Union, San Jose, California and others being represented by Local 270 of the Laborers' International Union of North America, San Jose, California.

The complaint prays affirmation of the citation and the proposed penalty of $500.

Respondent's answer, filed on January 14, 1972, admits it is a California corporation engaged in construction but denies that it is a business that affects commerce or that it has violated the Act. Specifically, the answer alleges:

Respondent is and has always furnished each of its employees a safe place to work, however, respondent does not have authority to police subcontractor's personnel and force them to only remain in designated areas.

There was no substantial probability that the alleged violation could have caused death or serious harm since only a roof area was being protected from inclement weather in the areas where no work was taking place or was anticipating taking place in the immediate future.

The trial was held, following a pre-hearing conference, in San Jose, California on April 10, 1972. n1 Opportunity was given to the parties to present evidence, cross-examine witnesses and file proposed findings and briefs. No employee or employee representative sought to participate in the proceeding.

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n1 Respondent was represented by counsel at the prehearing conference, but he later withdrew (H.E. Ex. 15).

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A pre-hearing order issued herein approved the following stipulations:

1. Respondent Jasper Construction, Inc., is a California corporation maintaining its principal place of business at 2125 Ocean Street, Santa Cruz, California.

2. Respondent was and is engaged in the business of construction.

3. An inspection was made of respondent's operations at San Jose State College, San Jose, California on September 2, 1971 by W. E. Stock, an authorized representative of the Secretary of Labor.

4. A citation was issued to respondent on or about October 4, 1971, alleging a violation of the General Duty Clause of Section 5(a)(1) of the Act.

5. Notification of proposed penalty was sent to Jasper Construction on October 15, 1971, proposing a penalty in the amount of $500.00.

6. At least two of the crew working as laborers and two lathers working on the project at San Jose State were exposed to the hazard if there was one, as stated in the violation charged in Citation No. 1, issued on October 4, 1971.

7. Local 144 of the Wood, Wire and Metal Lathers International Union is the authorized employee representative for the lathers affected by the alleged violation.

8. Local 270, Laborer's International Union, is the authorized employee representative for laborers affected by the alleged violation.

9. Notice of Contest by Jasper Construction, Inc., was issued on November 1, 1971 and received November 2, 1971 by the Secretary of Labor.

At the hearing, three affidavits were introduced into evidence in lieu of testimony. According to the affidavit of the President of Engfer Iron Works of San Jose, California (Secy. Ex. 2):

Engfer Iron Works furnished some supplies to Jasper Construction Co., Inc. to be used in the construction of Science Building #2, 5th and San Salvador Streets, San Jose, California. Items furnished Jasper Construction Co., Inc. included aluminum safety treads for stairs and aluminum building expansion joints. Engfer Iron Works purchased these supplies from Collier Building Specialties of San Francisco; However, the treads were manufactured by The American Abrasive Metals Co., Irvington, New Jersey, and the aluminum expansion joints were manufactured by Metalinas Inc. of Oklahoma City, Oklahoma. The total cost of these supplies was approximately $3,500.00.

The sales manager of Montgomery Elevator Co., of San Jose, California states in his affidavit that (Secy. Ex. 1):

Montgomery Elevator Co. had a contract with Jasper Construction Co., Inc. for the furnishing of elevators in Science Building #2, 5th and San Salvador Streets, San Jose, California. This contract was in the approximate amount of $180,000.00.

I would estimate that 90 percent of the supplies and equipment furnished Jasper Construction Co., Inc. on this contract came from sources outside the State of California, primarily from Moline, Illinois.

The third affidavit, signed by an estimator employed by George H. Wilson, Inc., states (Secy. Ex. 3):

George H. Wilson, Inc. had a contract with Jasper Construction Co., Inc. for the mechanical work on Science Building #2, 5th and San Salvador Streets, San Jose, California. I did much of the purchasing of supplies and materials for this project. Many of the supplies purchased for this job were manufactured in states other than California. Among the items from out of state were:

1. Approximately $20,000.00 worth of brass from Water Saber Faucet Co., Chicago, Illinois.

2. Approximately $32,000.00 in glass pipe from Owens-Corning Co., Corning, New York.

3. Approximately $6,500.00 worth of aquariums from Aquarium Systems, Inc., Wickleffe, Ohio.

4. A $37,800.00 sterilizer from William Castle Co., Rochester, New York.

5. Approximately $14,000.00 worth of registers and mixing boxes from Waterloo, Iowa.

6. Approximately $12,000.00 worth of outlets from Waterloo, Iowa.

President Jasper asserted that Respondent has avoided doing any out of state business (Tr. 125). His testimony, however, indicates that Respondent does a very substantial contracting business. It grossed approximately $6.5 million in 1971 and has as many as 150 persons on its own payroll on occasion. Respondent's contract for the construction of Science Building #2 at San Jose State College alone involved nearly $7 million. Currently, Respondent is building a $3.5 million building at the University of California at Santa Cruz, a $1.3 million motel in the same city and a $8.5 million hotel in San Francisco (Tr. 115-117). It is thus apparent that Respondent is an "employer" and "a person engaged in a business affecting commerce who has employees" as defined in Section 3 of the Act. n2

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n2 See NLRB v. Cowell Portland Cement Co., 148 F. 2d 237 (9th Cir. 1945) cert den. 326 U.S. 735, where jurisdiction of the NLRB over a California cement manufacturer was predicated on the purchase of supplies that had been shipped into California. The Court considered it unimportant whether the manufacturer or its suppliers had brought the supplies into the state (242): "The transportation was commerce, regardless of whether it preceded or followed respondent's acquisition of title to the transported articles. Nor is it important that the volume of such commerce was relatively small" (footnotes omitted). See also Katzenbach v. McClung, 379 U.S. 294 (1964) involving application of the Civil Rights Act of 1964 to a restaurant that purchased $70,000 in food that came from outside of the state; and Denver Building and Construction Trades Council v. NLRB, 186 F. 2d 326 (DC Cir. 1959) (reversed on other grounds, 341 U.S. 675) where jurisdiction of the NLRB was upheld on the basis that the purchase of $56,000 in supplies, or 65% of all of its purchases, "affected" commerce.

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At the time of the Secretary's inspection, Respondent had nearly completed the construction of Science Building #2 on the campus of San Jose State College. The new building was actually a new wing added to an existing seven story building known as the Science Building #1. (There are two photographs in evidence of the buildings, the new wing appearing on the right in each picture, Secy. Exs. 4 and 5.) While the new wing was under construction, Respondent and the State of California negotiated a "change over" contract calling for the cutting of a hole in the roof and the several floors in the existing building so a vent shaft could be installed. The hole was the largest at the top or roof level where its dimensions were approximately 5 X 20 feet, and it narrowed as it descended to the ground floor so there was "somewhat of a ledge" or landing on each of the seven floors (Tr. 49). The hole was cut in the roof just to the left of the penthouse on the existing building (Secy. Exs. 4 and 8; Tr. 40). A concrete parapet wall approximately four feet in height went about half way around the hole (Secy. Ex. 9; Tr. 63, 109). Otherwise, there was no railing, no barracade, and no warning signs around the hole. n3 Respondent's employees were instructed to stay out of, and away from, the existing building. The work that Respondent was to perform on the existing building pursuant to the change over contract involved services primarily of three subcontractors: Engfer Iron Works, which cut the hole and installed metal work; Alta Roofing, which performed work on the roof, including the installation of flashing; and George H. Wilson, Inc., which constructed the vent shaft (Tr. 120; 131-133). The record does indicate, however, that Respondent utilized some of its own employees in performing the change over contract. See Tr. 120 (Jasper); also Tr. 136 ("I may have a couple of carpenters up there doing our phase of the work" -- Everett). Access to the roof of the existing building, and presumably any floor above the ground level, was restricted. Entry through the existing Science Building #1 itself required one to obtain permission and a key to a locked door #701 from the state inspector on the job, Lloyd Hickock, (Tr. 61-2, 135-7, 148-9). One could also gain access to the roof of the existing building by "going over the top" from the new wing, but it would be necessary to use a 15 foot ladder and climb over a wall and walk along a narrow walkway in front of the penthouse (Tr. 44, 61, 135, 149).

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n3 There were signs warning of "dangerous radiation" in the area of the seventh floor of the existing Science Building #1 (Tr. 154-5).

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The record shows that the hole remained open, at least in part, for approximately one month. On or about August 23, 1971, when the hole was open and the change order job was complete except for installation of the roof vent hood, two laborers in the employ of Respondent, Abraham Torres and William Gay, were directed by Respondent's job superintendent to go to the roof of the existing building and cover the hole as it was beginning to rain (Tr. 144; 23-5). Mr. Torres and Mr. Gay covered the hole with craft or tar paper. They placed pieces of insulating material of about two inches in thickness on the paper to hold it in place. In the early afternoon of August 25, 1971, Milton Munshower, a lather and an employee of Pacific Plastering, a subcontractor engaged by Respondent, fell through the hole in the roof to a floor about 30 feet below (Tr. 48). Mr. Munshower suffered injuries to his back, his right foot and other parts of his body for which he was hospitalized approximately one month.

The Secretary called Mr. Munshower, Mr. Torres, and Mr. Jasper as witnesses. Also appearing for the Secretary were three Department of Labor officials, William E. Stock, the compliance officer who investigated the accident; Donald T. Pickford, the San Francisco Area Director of the Occupational Safety and Health Administration (OSHA); and Gabriel Gillotti, who testified as an expert in construction. President Jasper and Job Suerintendent William H. Everret testified for the defense.

Mr. Jasper testified that he had no knowledge of the hole in the existing building before the accident. In order for Respondent to do any work, he said a key had to be obtained from State Inspector Hickock and the work scheduled (Tr. 122). As job superintendent on the San Jose project, Mr. Everret was responsible for supervising and coordinating the work of all the trades, including the work of subcontractors. Subcontractors or their employees would contact him about the change over job and he, if necessary, would consult with State Inspector Hickock. He stated that safety meetings and safety inspections were conducted regularly. Subcontractors and their employees attended the meetings, although Pacific Plastering was not always represented (Tr. 130-1). Mr. Everret testified that workers were frequently told to stay out of the existing building. Any persons on the roof of the existing building who were not given express permission to be there were "unauthorized personnel" in his view (Tr. 136).

Mr. Torres, a member of the Laborers' Local 270, testified that he had worked on the Science Building #2 project for about two years. He did not know of the hole or that work was even being performed on Science Building #1 until he and Employee Gay went on to the roof of the building to cover the hole. It is apparent that he and Mr. Gay got on to the roof by going "over the top" from the new wing, although he was not certain of the specific route that they had taken. He had never been on the roof of the existing building before and did recall that he had been told to stay in his own work area and out of the existing building.

The injured lather, Mr. Munshower, testified that he and another employee of Pacific Plastering went on to the roof of the existing building to get the dimensions of expansion joints (sectional squares) on the exterior of that building in order that the outer wall of the new wing could be finished to look like the exterior of the existing building. Such information was not available, he said, through his own foreman or from blue prints. Mr. Munshower, like Mr. Torres, got on to the roof by going over the top from the new building. He also stated that he did not know of the hole in the roof and was not warned about it. According to the witness, "I was just walking across the roof there, and the next thing I knew, I was on the -- I fell in the shaft" (Tr. 71). Mr. Munshower said that others were working on the roof on the day he fell and that a ladder was on the roof of the new wing, affording access to the roof of the existing building (Tr. 81).

Mr. Stock said he made an inspection for the Secretary of Labor approximately seven days after the accident, on September 2, 1971, in the company of the state inspector and Respondent's job superintendent. He took a photograph of the roof of the existing building showing the hole had been covered and enclosed by a railing (Secy. Ex. 9; Tr. 46).

Mr. Stock testified that he is a graduate industrial engineer, that he is a licensed contractor and has 15 years experience in industrial safety inspection for the State of California. He said he determined from his investigation that there was not a solid cover over the hole prior to or at the time of the accident and he, accordingly, recommended issuance of a citation charging a serious violation of section 5(a)(1) of the Occupational Safety and Health Act (Tr. 50-53). Mr. Stock said he returned to the construction site on April 28, 1972 and took additional photographs. These later photographs show the older building with the new wing completed, portions of the "over the top" access route to the roof of the old building, and the metal ventilating unit installed (Secy. Ex. 4-8; Tr. 38-46).

On cross examination Mr. Stock agreed that the concrete parapet wall on the roof served as a railing around part of the hole, but he did not agree that it provided adequate protection, even apart from the fact that it did not completely encircle the hole, because "the parapet wasn't that close to it" (Tr. 63). He also expressed the view that an open hole like the one cut in the existing building here would not be made safe by limiting employees access to it through use of a key to a locked door (Tr. 57, 62).

Mr. Stock's superior, Mr. Pickford, stated that he approved of his compliance officer's recommendation that a citation for a serious violation be issued. He proposed an unadjusted penalty of $1,000 against Respondent and an adjusted penalty of $500, giving 20% for good faith, 10% for size (there being under 20 employees on the job) and 20% for history (Secy. Ex. 11; Tr. 87-91).

Mr. Gillotti is an Assistant Regional Administrator for OSHA. He is a graduate civil engineer and has worked as a safety inspector for the State of California. In his expert opinion, the open hole in Science Building #1 was a recognized hazard likely to cause death and serious physical injury to employees (Tr. 96). The hazard, he stated, was one recognized in regulations issued by the Secretary of Labor (29 CFR 1518.500(b)(8)) now in effect, in safety orders issued by the Division of Industrial Safety of the State of California (Title 8, Article 19, Section 1632; Secy. Ex. 12) and in the standards promulgated by the American National Standards Institute (Para. 3.8 of ANS A12.1-1967, Secy. Ex. 13). Mr. Gillotti testified such authorities called for a railing or solid cover to protect employees from falling into the hole. It was his further view that the covering of the hole with light weight paper served to increase the hazard (Tr. 105-6). He pointed out on cross examination that the regulations and other authorities cited did not dictate how close to a hole a railing must be, but to afford protection it must be "within reasonable distance" (Tr. 107). In his opinion, the parapet wall on the roof of the existing building would not have provided sufficient protection even if it had completely enclosed the hole; he felt the locked door to the roof afforded "control" but insufficient protection (Tr. 110-113).

The fact that Witness Munshower fell through the 5' X 20' hole that had been cut in the roof and several floors of Science Building #1 under Respondent's direction and suffered significant injuries clearly demonstrates that there was a hazard "likely to cause death or serious physical harm . . ." It is apparent that Mr. Munshower could well have fallen the full seven floors to the ground. The peril involved in the hazardous condition that was created by Respondent in the existing building is so clear that it tends to infer the existence of a recognized hazard. The risk of very serious injury or death resulting from the unprotected seven-story hole, especially after it was covered with light paper, is obvious. That such a risk would be "recognized" in the construction trade also seems obvious. But it is unnecessary to base such finding only upon proof that Respondent brought about the existence of the hole and failed to safeguard it. n4 The expert opinion of Witness Gillotti and the authorities cited by him clearly establish that the 5' X 20' hole constituted a recognized hazard and that safety measures, either in the form of a railing (and toeboard) or a solid covering, were required to protect persons from falling into it. n5

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n4 The undersigned is not called upon to determine the State's role and responsibility in the premises.

n5 The California safety order cited by Mr. Gillotti was published on July 17, 1965 and provides in part that "a floor or roof opening through which a man or material might fall . . . shall be covered with planks or other secure covering of adequate strength to support any load that might be placed thereon, or it shall be fenced on all sides by a railing and toeboard." The order also requires that any cover used must be "secured in place" and labeled (Secy's Ex. 12). Paragraph 3.8 of the American National Standards Institute, Inc.'s Safety Requirements for Floor and Wall Openings, Railings, and Toeboards, originally approved as a USA Standard in March, 1967 and effective as an ANSI Standard since October, 1969, provides (Secy. Ex. 14): "Every floor hole into which persons can accidentally walk shall be guarded by either (1) a standard railing with standard toeboard on all exposed sides, or (2) a floor hole cover of standard strength and construction that should be hinged in place. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable standard railing."

The standard issued by the Secretary on the subject is very similar to the ANSI standard (29 CFR 1518.500(b)(8), 36 Fed. Reg. 7381).

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Respondent apparently does not dispute the fact that the unprotected hole seven floors deep presented a recognized hazard but seeks to defeat the Secretary's case on the merits (its jurisdictional argument was rejected, supra ) on two bases: (1) that workmen were afforded protection by a railing in the form of a parapet wall that rose four feet above the roof as a part of the outer walls of Science Building #1 and (2) there was restricted access to the roof of the building where the hole was located.

The Secretary's compliance officer as well as his expert witness provided an adequate answer to the first contention. Both Mr. Stock and Mr. Gillotti pointed out that the parapet wall only enclosed part of the hole (essentially only on two sides), and the wall was too far removed from the hole to prevent persons from falling into it.

Respondent pressed its second contention more seriously, but it is also unpersuasive. As Witness Gillotti pointed out, the locked door afforded "control" of access to the roof and the hole there, but it did not afford the required protection to workers who went through that door. And, of course, there was access to the roof of Science Building #1 "over the top" from the new wing. Mr. Munshower and his lather partner (Arthur Matts) were able to secure access by that route, and no doubt many other workers did too.

The roof as well as the several floors of Science Building #1 where the hole was cut was a "place of employment" for Respondent's employees that were engaged in the change over contract, and the Occupational Safety and Health Act imposed on Respondent a duty to protect them from the recognized hazard that existed there in the form of the unprotected hole. While Mr. Munshower's fall and resulting injury demonstrated a very substantial risk to persons on the roof of the existing building, it is not apparent to the undersigned that Mr. Munshower or his partner was in Respondenths "employment" or an "employee" of Respondent. Therefore, it is not found that Respondent breached a duty under the Act owed to Mr. Munshower and his partner. An employee of a sub-contractor presumably may also be shown to be an "employee" of a prime contractor and thus entitled to protection under the Act as to the latter, but the record here does not provide a basis for such a finding.

But whether Mr. Munshower and his partner or other employees of sub-contractors working on the roof in the area of the open hole during August 1971 were considered to be employees of Respondent or not, it is clear that Respondent did violate the general duty clause of the Act as there were persons in the hazardous area who were unquestionably its employees. Witness Torres and his partner, Bill Gay, were clearly employees of Respondent, and they were exposed and "affected" by the recognized hazard. The record indicates that there were other employees of Respondent working on the change over job; and presumably they were working in the exposed area and they would likewise be affected (Tr. 120, 136). Any employee working in the area of the hole after it was covered with light paper would have been particularly subject to the statutory risk.

The $500 penalty assessed appears to be reasonable and appropriate, particularly in view of the substantial likelihood that serious injury could have occurred. The factors of Respondent's size, good faith and history (there is no record of any previous violations) have also been taken into account, but the undersigned has not computed the penalty by application of a mathematical formula as the Secretary did. n6

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n6 Section 17(j) of the Act gives the Commission authority to assess civil penalties, "giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."

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Based upon the foregoing findings, and the whole record, the following conclusions of law are entered:

1. Jurisdiction of this proceeding is conferred by Section 10(c) of the Occupational Safety and Health Act of 1970.

2. Respondent is an "employer" and "a person engaged in business affecting commerce who has employees" within the meaning of Section 3(5) of the Act.

3. Respondent violated Section 5(a)(1) of the Act by failing adequately to protect its employees from the recognized hazard that arose by reason of cutting a hole in the roof and several stories of the Science Building #1 at San Jose State College and permitting it to remain open and unguarded either by a guard rail or by a proper cover and, thus, failed to furnish its employees with employment and a place of employment free from recognized hazards that could cause or likely cause death or serious physical harm to employees.

4. Such violation was a "serious violation" within the meaning of Section 17(k) of the Act as there was a substantial probability that death or serious physical harm could have resulted.

Upon the basis of the foregoing, it is ORDERED that the citation issued herein on October 4, 1971, and the proposed penalty assessed thereon be, and the same are, AFFIRMED.