ALCAP ELECTRICAL CORP.

OSHRC Docket No. 1722

Occupational Safety and Health Review Commission

May 15, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Henry K. Osterman in an action brought under the Occupational Safety and Health Act of 1970, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision held respondent in violation of 29 U.S.C. 654(a)(2).

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n1 29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.

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At issue is whether a subcontractor can be held liable under the Act if its employees are exposed to hazards resulting from conditions it did not create or control. We have consistently answered that affirmatively. See Secretary v. City Wide Tuckpointing Service Co., Secretary v. Gilles and Cotting, Inc., Secretary v. Hawkins Construction Co.,

The Judge's decision is affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur.

The lead opinion has [*2] correctly stated the issue and reached the proper conclusion.

I must, however, disassociate myself from the lead opinion's reliance on City Wide Tuckpointing Service Co., No. 247 (May 23, 1973), Gilles & Cotting, Inc., No. 504 (October 9, 1973), and Hawkins Construction Co., No. 949 (May 20, 1974). All of these cases are inapposite.

In City Wide Tuckpointing the cited employer created and controlled the conditions alleged to be violative of the Act. In Gilles & Cotting, the cited employer was the general contractor and the condition alleged to be hazardous was created and controlled by the subcontractor. Similarly, in Hawkins Construction Co., the cited employer was the general contractor. The hazardous condition in that case was created by the general contractor. In all three cases, the citations were vacated on the grounds that employees of the cited employer were not exposed. Thus, each of these cases is clearly distinguishable on its facts from this case.

Although I agree with my colleague that a subcontractor can be found in violation of the Act if its employees are exposed to hazards resulting from conditions it did not create or control, [*3] I would rely on our decisions in R.H. Bishop Co., No. 637 (May 30, 1974), California Stevedore & Ballast Co., No. 1132 (May 28, 1974), cited and quoted in the lead opinion in Robert E. Lee Plumbers, Inc., No. 2431 (May 2, 1975). All of these cases are factually similar and raise the same issue.

As I stated in my concurrence in Robert E. Lee Plumbers, we cannot ignore employers who, while not having control over the dangerous area, choose to expose their employees to the hazard. Although this situation may result in the unfortunate choice of compliance with the Act by difficult means or risking citation for non-compliance, the clear purpose of the Act requires that employees be protected.

To provide a form of immunity from the Act's remedial measures to those employers who are not in control of a hazardous condition, is to weaken severely the very fabric of the Act. We cannot permit this to happen.

Robert E. Lee Plumbers, Inc., supra (concurring opinion).

Moreover, Gilles & Cotting and Hawkins Construction, cited in the lead opinion, although clearly distinguishable and not authority for the conclusion reached in this case, nevertheless compel the [*4] conclusion. I dissented in both of those cases and continue to adhere to the position expressed in those dissents. This case points up the inherent weakness of those decisions. Under those cases, the Secretary cannot enforce a citation against the employer who creates and controls a hazardous condition when his employees are not exposed. If a citation cannot be enforced against an employer who, though neither creating nor controlling the hazardous conditions, nevertheless has employees potentially exposed, then there may be occasions where there is no one who would be held accountable for hazardous conditions existing in a multiple employer workplace.

To foreclose such a possibility, I concur in the result reached here.

[The Judge's decision referred to herein follows]

OSTERMAN, Judge: These are proceedings initiated pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq., (hereafter called the Act) to contest Citations and Notices of Proposed Penalties issued to each Respondent on October 27, 1972, by the Secretary of Labor pursuant to Section 9(a) of the Act. By order of the Commission dated February 9, 1973, the above-captioned [*5] matters were consolidated for trial on March 13, 1973, in New York City.

Each of the five * Respondent's were charged with three identical serious violations and four identical non-serious violations as follows:

SERIOUS VIOLATIONS

Regulations -- Abatement Date -- Proposed Penalties n1

29 CFR 1926.500(d)(1) [Failure to provide perimeter guarding on all opensided floors] -- 5 days -- $600.00

Regulations -- Abatement Date -- Proposed Penalties

29 CFR 1926.500(e)(1) [Failure to provide stair railings for stairways with more than 4 risers] -- 5 days -- $600.00

29 CFR 1926.500(b)(1) [Failure to provide railings around floor openings] -- 5 days -- $600.00

NON-SERIOUS VIOLATIONS

Regulations -- Abatement Date -- Proposed Penalty

29 CFR 1926.500(c)(1) [Failure to provide fire extinguishers] -- 5 days -- none

29 CFR 1926.500(d)(2) [Failure to provide railings on two runways leading to 1st floor of building] -- 5 days -- $30.00

29 CFR 1926.350(a)(9) [Failure to secure compressed gas cylinders in upright position] -- Immediately -- $40.00

29 CFR 1926.450(a)(9) [Failure to provide ladder with side railings extending at least 3 feet above landing] -- 5 days -- none

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* Ed. Note: Valente Contracting Corp., Grodsky Plumbing Co., Inc. and Delta Erection Corp. became final on August 6, 1973. See 4 OSAHRC 148. Laster and Fingeret, Inc. was reviewed by the Commission and becames final February 4, 1975. See 15 OSAHRC 420.

n1 The proposed penalties for Laster and Fingeret, prime contractor, was fixed at $700.00 for each of the three serious violations as well as increased amounts for the non-serious violations. (See Findings of Fact infra. )

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In addition, Laster and Fingeret, Docket #1715; Valente Contracting Corporation, Docket #1717, Grodsky Plumbing Co., Inc., Docket #1727; and Delta Erection Corporation, Docket #1757 where each charged with the non-serious violation of 29 CFR 1926.23 [failure to provide first-aid services, no penalty proposed]. Grodsky Plumbing Co., Inc., Docket #1727 was also charged with two other non-serious violations, 29 CFR 451(a)(4) and 29 CFR 1926.451(a)(13) [failure to provide guarding at open sides of scaffold work platform and failure to provide [*7] safe access to the said scaffold work platform.] A penalty of $35.00 was proposed for the first of these violations and no penalty for the latter.

Notices of Contest were timely filed by each of the Respondent. Thereafter Complaints and Answer were filed by the Secretary and each of the Respondents herein.

At the hearing it was stipulated by each party to the proceeding (1) that the violations charged in the Citations issued to each Respondent did in fact exist on October 20, 1972, the date of the inspection (2) that [with the exception of Alcap and Delta employees] employees of each Respondent were exposed to the hazards created by the violation (3) that all Respondents on the date of inspection were employers engaged in a business affecting commerce. n2

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n2 Alcap did not stipulate this item but did admit in its Answer that it is engaged in interstate commerce. Answer: (Answer Par. 6).

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It was also stipulated that paragraph 5 of each Complaint would be amended to omit all reference to the open-sided roof of the [*8] building in question, and that this alleged violation of 29 CFR 1926.500(d)(1) would be limited to the first, second, and third floors of the building.

The issues raised by the Respondent's were (1) whether or not the three serious violations charged against each Respondent were in fact "serious" violations within the meaning of Section 17(k) of the Act (2) whether employees of Alcap Electrical Company and employees of the Delta Erection Corp., were, in fact, exposed to the hazards as charged by the Secretary (3) whether the penalties proposed for the alleged violations are appropriate and consistent with the standards established by Sections 17(b) and (j) of the Act for the assessment of proposed penalties.

On December 18, 1972, prior to hearing, Alcap Electrical Corp., filed a motion to dismiss the complaint for lack of jurisdiction on the ground that said complaint does not allege that the worksite was under the control of this Respondent, and the further ground that the Notice of Proposed Penalty was not issued by an authorized individual as required by Section 10 of the Act. n3 Alcap's motion also sought to require the Secretary to state with greater particularity the [*9] basis for the proposed penalties and, in addition, requested an extension of time to answer the Complaint. By Order dated February 22, 1973, additional time to answer was granted, the balance of Alcap's motion was denied without prejudice to Respondent's right to renew said Motion at the hearing to follow.

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n3 Section 10 provides that "the Secretary . . . should be within a reasonable time . . . notify the employer by certified mail of the penalty."

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Alcap's motion to dismiss, insofar as it raises the question of worksite control by Alcap, is denied on the authority of Capitol Fire Protection Company, Docket No. 301, November 3, 1972, affirmed by Commission December 6, 1972. n4 Insofar as the motion relates to the issuance of the Notice of Proposed Penalty by the Area Director, rather than the Secretary of Labor, the motion is also denied. Section (2)(g) of the Act authorizes the Secretary of Labor to prescribe all rules and regulations deemed necessary to carry out his responsibilities under the Act. By regulations [*10] effective September 4, 1971, the Secretary delegated to the Area Director the power to determine the amount of any penalty proposed for violation of the standards in accordance with Section 17 of the Act ((29 CFR 1903.15(b)). Obviously, in view of the volume of inspections made and citations issued annually, the Secretary's delegation of this power is both reasonable and necessary for the functioning of his office. The remaining items of relief sought in Alcap's motion are now moot and need not be further considered here.

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n4 See also: Frohlick Crane Service, Docket #890, November 20, 1972; Jaffie Contracting Co., Inc., Docket #610, January 10, 1973; and Dixie Electric Inc., Docket #1345, January 18, 1973.

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With respect to the violations charged, both serious and non-serious, Respondents, with two exceptions, have conceded that said violations existed at the time of inspection and that their respective employees were exposed to the hazards created by the violations. The two exceptions are Delta [*11] Erection Corporation and Alcap Electrical Corporation both of which, although conceding that violations existed, deny that their employees were exposed to the hazards thus created. The record however, discloses that both Delta employees and Alcap employees were in fact exposed to some, if not all, of the hazards created by the violations alleged in the Citations.

Concerning Delta, the Compliance Officer, Mr. Leonard A. Cobb, testified that he observed employees of Delta cutting holes in the metal flooring on the second level of the building and that several other unguarded holes were observed in the area. Exhibit C-10 supports this testimony. Cobb also testified that in order to get to the second level Delta employees would have had to use a staircase which lacked handrails (Exh. C-4) and were exposed to those hazards which affected all employees entering or leaving the structure. Cobb's testimony regarding the exposure of Delta's men to the danger of falling off the edges of the building is less persuasive. He did not know whether their work required these employees to approach the outside perimeters of the building, and he estimated that the employees he observed were about [*12] 50 feet away from the perimeter.

As to exposure by employees of Alcap, the evidence clearly shows that employees of this Respondent were permitted to work within the vicinity of unguarded floor openings in close proximity to gas tanks which had been left lying on their sides by Delta employees (Exh. C-7); that they used the unguarded stairways (Exh. C-9) and that they were exposed to those violations which affected employees entering or leaving the structure (Exh. C-3).

On the question of liability under the Act this Commission has consistently taken the position that a subcontractor is liable, along with the general contractor, where employees of the former have been exposed to hazardous conditions not of their own creation, and for which the subcontractor has no contractual responsibility. It is moreover immaterial where, as here, the prime contractor has accepted sole responsibility for the alleged violations (see submission of Laster and Fingeret dated March 6, 1973 and Proposed Findings of Fact), Secretary of Labor v. Jaffie Contracting Co. Inc., Docket No. 610; Secretary of Labor v. Fireproof Products Co. Inc., Docket No. 674; Secretary of Labor [*13] v. Ellison Electric, Docket No. 412; Secretary of Labor v. Howard P. Foley Co., Docket No. 1615; Secretary of Labor v. Barnaby Concrete Corp., Docket No. 674. Where, however, the subcontractor's employees have not been exposed to a hazard created by the prime contractor no liability attaches to the former under the Act. Secretary of Labor v. C.N. Harrison Construction Co., Docket No. 413.

With respect to the penalties proposed by the Secretary of Labor the Respondents argue that the formula applied by the compliance officer and the area director insofar as it relates to the proposed penalties for the three serious violations is inconsistent with the provisions of Section 17(b) of the Act which provides for a penalty of "up to $1000.00 for each such violation." They correctly point out that under the formula established by the Secretary of Labor in his Compliance Operations Manual the penalty for a serious violation can never be less than $500.00 even though the Secretary in assessing each of the proposed penalties has given due consideration to the four elements outlined in Section 17(j) of the Act, whereas under the language of Section 17(b) a lesser [*14] amount could be assessed. I believe there is some merit to this argument.

I find that the Secretary's formula which does not permit a penalty of less than $500.00 for each serious violation lacks the flexibility contemplated by the statute; that it results in excessive penalties; and, as applied to the subcontractors herein, is not appropriate in the circumstances of this particular case. The sole remedy available to a subcontractor in the situation described above is to pull his men off the job and thereby risk future loss of business, boycott, or litigation. He cannot because of union restictions correct violations outside of his particular field of operations. Conceding that the subcontractors involved here were technical violators it is nevertheless my view that "the penalty should fit the crime" and should not be determined by any hard and fact formula as promulgated in the manual referred to above.

With respect to Laster and Fingeret, the prime contractor, the record shows that this Respondent expended approximately $3,000.00 to correct the alleged violation relating to the roof of the building and that this alleged violation was subsequently withdrawn by the counsel [*15] for the Secretary. The funds thus expended unnecessarily by this Respondent exceeds by approximately $800.00 the total amount of the proposed penalties. In my opinion equity requires that in these circumstances this Respondent be relieved of the additional obligation to pay the penalties assessed, and that that the Secretary should be required to refund to this Respondent any monies already received in payment of said penalties.

FINDINGS OF FACT

Laster and Fingeret, Inc.

1. Respondent Laster and Fingeret, Inc. is, and at all material times was, a corporation organized and existing under the laws of the State of New York doing business in the construction trade as a general contractor. Respondent handles products which move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The [*16] alleged violations, abatement dates, and proposed penalties are as follows:

Serious Violation

Abatement Date

Proposed Penalty

29 CFR 1926.500(d)(1)

5 days

$700.00

29 CFR 1926.500(e)(1)

5 days

$700.00

29 CFR 1926.500(b)(1)

5 days

$700.00

Non-Serious Violations

29 CFR 1926.150(c)(1)

5 days

none

29 CFR 1926.500(d)(2)

5 days

$35.00

29 CFR 1926.350(a)(9)

Immediately

$45.00

29 CFR 1926.450(a)(9)

5 days

none

29 CFR 1926.23

5 days

none

5. All of the said violations were abated on about October 27, 1972.

6. Subsequent to the issuance of the said Citations and prior to the hearing on March 13, 1973 Respondent expended approximately $3,000.00 to correct violations relating to the roof of the building under construction. Respondent has also paid to the Secretary of Labor the penalties proposed by the Secretary.

7. At the hearing counsel for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

8. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the [*17] building, existed on the date of inspection.

9. Respondent further conceded that its employees had been exposed to the hazards created by said violations.

10. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations.

11. In arriving at the proposed penalties for the non-serious violations the Secretary considered those elements which are outlined in Section 17(j) of the Act.

Valente Contracting Corporation

1. Respondent Valente Contracting Corporation is, and at all material times was, a corporation organized and existing under the laws of the State of New York doing business as a cement contractor. Respondent handles products which move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made [*18] by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties are as follows:

Serious Violation

Abatement Dates

Proposed Penalties

29 CFR 1926.500(d)(1)

5 days

$600.00

29 CFR 1926.500(e)(1)

5 days

$600.00

29 CFR 1926.500(b)(1)

5 days

$600.00

Non-Serious Violations

29 CFR 1926.150(c)(1)

5 days

none

29 CFR 1926.500(d)(2)

5 days

$30.00

29 CFR 1926.350(a)(9)

Immediately

$40.00

29 CFR 1926.450(a)(9)

5 days

none

29 CFR 1926.23

5 days

none

5. All of the said violations were abated on about October 27, 1972.

6. At the hearing counsel for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

7. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the building, existed on the date of inspection.

8. Respondent further conceded that its employees had been exposed to the hazards [*19] created by said violations.

9. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations. I find that because the formula applied by the Secretary of Labor lacks the flexibility contemplated by Section 17(b) of the Act the resulting penalties proposed for those three serious violations are excessive and inappropriate under the circumstances herein.

10. In arriving at the proposed penalties for the non-serious violations the Secretary consideres those elements of which are outlined in Section 17(j) of the Act.

Alcap Electrical Corporation

1. Respondent Alcap Electrical Corporation is, and at all material time was, a corporation organized and existing under the laws of the State of New York. Respondent does business as an electrical contractor and handles products which move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, [*20] Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties are as follows:

Serious Violation

Abatement Dates

Proposed Penalties

29 CFR 1926.500(d)(1)

5 days

$600.00

29 CFR 1926.500(e)(1)

5 days

$600.00

29 CFR 1926.500(b)(1)

5 days

$600.00

Non-Serious Violations

29 CFR 1926.150(c)(1)

5 days

none

29 CFR 1926.500(d)(2)

5 days

$30.00

29 CFR 1926.350(a)(9)

Immediately

$40.00

29 CFR 1926.450(a)(9)

5 days

none

5. All of the said violations were abated on about October 27, 1972.

6. At the hearing counsel for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

7. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the building, existed on the date of [*21] inspection.

8. Respondent's employees were exposed to all of the hazards created by the violations which existed on October 20, 1972.

9. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations. I find that because the formula applied by the Secretary of Labor lacks the flexibility contemplated by Section 17(b) of the Act the resulting penalties proposed for those three serious violations are excessive and inappropriate under the circumstances herein.

10. In arriving at the proposed penalties for the non-serious violations the Secretary considered those elements of which are outlined in Section 17(j) of the Act.

Grodsky Plumbing Company, Inc.

1. Respondent, Grodsky Plumbing Company, Inc. is, and at all material time was, a corporation organized and existing under the laws of the State of New York doing business as a plumbing contractor. Respondent handles products which move across state lines.

2. On or about [*22] October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties are as follows:

Serious Violation

Abatement Dates

Proposed Penalties

29 CFR 1926.500(d)(1)

5 days

$600.00

29 CFR 1926.500(e)(1)

5 days

$600.00

29 CFR 1926.500(b)(1)

5 days

$600.00

Non-Serious Violations

29 CFR 1926.150(c)(1)

5 days

none

29 CFR 1926.500(d)(2)

5 days

$30.00

29 CFR 1926.350(a)(9)

Immediately

$40.00

29 CFR 1926.450(a)(9)

5 days

none

29 CFR 1926.23

5 days

none

29 CFR 1926.451(a)(4)

Immediately

$35.00

29 CFR 1926.451(a)(13)

Immediately

none

5. All of the said violations were abated on about October 27, 1972.

6. At the hearing counsel for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded [*23] that these particular violations had been improperly charged.

7. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the building, existed on the date of inspection.

8. Respondent further conceded that its employees had been exposed to the hazards created by said violations.

9. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations. I find that because the formula applied by the Secretary of Labor lacks the flexibility contemplated by Section 17(b) of the Act the resulting penalties proposed for those three serious violations are excessive and inappropriate under the circumstances herein.

10. In arriving at the proposed penalties for the non-serious violations and Secretary considered those elements of which are outlined in Section 17(j) of the Act.

Delta Erection Corporation

1. Respondent, Delta Erection Corporation is, and at all material times [*24] was, a corporation organized and existing under the laws of the State of New York doing business as a steel erection contractor. Respondent handles products which move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties are as follows:

Serious Violation

Abatement Dates

Proposed Penalties

29 CFR 1926.500(d)(1)

5 days

$600.00

29 CFR 1926.500(e)(1)

5 days

$600.00

29 CFR 1926.500(b)(1)

5 days

$600.00

Non-Serious Violations

29 CFR 1926.150(c)(1)

5 days

none

29 CFR 1926.500(d)(2)

5 days

$30.00

29 CFR 1926.350(a)(9)

Immediately

$40.00

29 CFR 1926.450(a)(9)

5 days

none

29 CFR 1926.23

5 days

none

5. All of the said violations were abated on about October 27, 1972.

6. At the hearing counsel [*25] for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

7. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the building, existed on the date of inspection.

8. This Respondent's employees were not exposed to Serious Violation No. 1 [29 CFR 1926.500(d)(1) -- lack of perimeter guarding] but were exposed to all of the other violations charged by the Secretary.

9. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations. I find that because the formula applied by the Secretary of Labor lacks the flexibility contemplated by Section 17(b) of the Act the resulting penalties proposed for the serious violations are excessive and inappropriate under the circumstances herein.

10. In arriving at the proposed penalties for the non-serious [*26] violations the Secretary considered those elements of which are outlined in Section 17(j) of the Act.

CONCLUSION OF LAW

Laster and Fingeret

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(d)(1); 29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9); 29 CFR 1926.450(a)(9) and 29 CFR 1926.23.

3. The first three violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

Valente Contracting Corporation

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 [*27] CFR 1926.500(d)(1); 29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9); 29 CFR 1926.450(a)(9) and 29 CFR 1926.23.

3. The first three violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the penalties proposed for all the said violations due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

Alcap Electrical Corporation

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(d)(1); 29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9) and 29 CFR 1926.450(a)(9).

3. The first three violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established [*28] by Section 17(j) of the Act.

Grodsky Plumbing Company, Inc.

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(d)(1); 29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(e)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9); 29 CFR 1926.450(a)(9) and 29 CFR 1926.23, 29 CFR 1926.451(a)(4) and 29 CFR 1926.451(a)(13).

3. The first three violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

Delta Erection Corporation

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); [*29] 29 CFR 1926.500(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9); 29 CFR 1926.450(a)(9) and 29 CFR 1926.23.

3. The first two violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

ORDER

Pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 and 29 CFR 2200.66 it is ORDERED:

1. That all Motions to dismiss the Citations and Complaints made by counsel for Respondents are DENIED.

2. That all Citations, both serious and non-serious, issued against Laster and Fingeret, Valente Contracting Corporation, Alcap Electrical Corporation and Grodsky Plumbing Company be, and the same hereby, are AFFIRMED.

3. That all Citations, both serious and non-serious, issued against the Delta Erection Corporation with the exception of Serious Violation No. 1 [29 CFR 1926.500(d)(1)] be, and the same hereby are, AFFIRMED. Serious Violation No. 1 issued against this Respondent, and the penalty proposed for Serious Violation No. 1, are both VACATED.

4. That because [*30] Laster and Fingeret, Inc. has made an unnecessary expenditure of approximately $3,000.00 to correct alleged violations charged by the Secretary and subsequently withdrawn, this Respondent is relieved of the obligation to pay all penalties proposed by the Secretary of Labor. Said penalties, if already paid to the Secretary, shall be refunded to this Respondent.

5. Motions made by Respondents' counsel to vacate the penalties proposed by the Secretary fot the three Serious Violations charged are granted to the following extent:

The penalties proposed by the Secretary for each Serious Violation issued against Valente Contracting Corporation, Alcap Electrical Corporation, Grodsky Plumbing Company, Inc. and Delta Erection Corporation are, VACATED, and a penalty of two hundred dollars (200.00) for each Serious Violation is assessed against each of these Respondents.

6. That the penalties proposed for each Non-Serious Violation issued against Valente Contracting Corporation, Alcap Electrical Corporation, Grodsky Plumbing Company, Inc. and Delta Erection Corporation be, and the same hereby are, AFFIRMED.