MAYFAIR CONSTRUCTION COMPANY

OSHRC Docket No. 2171

Occupational Safety and Health Review Commission

September 26, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Kent Lawrence, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On February 27, 1975, Administrative Law Judge Louis J. Rubin issued his decision in this case, finding respondent Mayfair Construction Company in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. The Judge affirmed in part item 3, and affirmed in their entirety items 4, 5, 6, 7, 8, 9, and 12 of a citation alleging an other than "serious" violation. Penalties of $30 were assessed for items 6, 7, 8 and 9; no penalties were assessed for the remaining items. This case is before us on former Commissioner Moran's review order of March 18, 1975, issued in connection with this case and fifteen other consolidated cases. n1 We affirm and reverse in part.

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n1 Judge Rubin ordered the cases consolidated. Under an order in A.C. & S., Inc., 4 BNA OSHC 1529, 1976-77 CCH OSHD para. 20,995 (Nos. 2097 etc., 1976) most of the cases have become final orders of the Commission. Pursuant to Commission Rule 10, 29 CFR S 2200.10, this case is hereby severed for decisional purposes.

[*2]

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Mayfair Construction Company performed concrete construction work at the Sears Tower construction site in Chicago. Illinois. As a result of an inspection of the site, which lasted from August 28, 1972 to September 11, 1972, respondent received a 13-item citation. Eight of these items remain in issue here.

Reasonable Promptness

Mayfair argues that the citation must be vacated on "reasonable promptness" grounds. It notes that the citation was not issued until four months after the site was inspected, and that a draft citation prepared by the compliance officer who conducted the inspection was before the Acting Area Director for about a month before it was finally issued. Before Judge Rubin, the Secretary noted the administrative burden that was presented by the coordination and issuance of citations resulting from the Sears Tower inspection. n2

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n2 Thirty seven companies were issued citations encompassing 350 items alleging non-serious violations and two citations alleging serious violations. More than 80 occupational safety and health standards were cited.

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Judge Rubin held that the citations were validly issued even under the test set forth in Chicago Bridge & Iron Co., 74 OSAHRC 3/E10, 1 BNA OSHC 1485, 1973-74 CCH OSHD para. 17,187 (No. 744, 1974), rev'd, 514 F.2d 1082 (7th Cir. 1975). After these cases were heard by the Judge, we issued our decision in Coughlan Construction Co., Inc., 75 OSAHRC 87/F6, 3 BNA OSHC 1636, 1975-76 CCH OSHD para. 20,106 (Nos. 5303 & 5304, 1975). There the Commission rejected its previous Chicago Bridge & Iron rule and hald that a citation issued without reasonable promptness may be vacated if an employer is prejudiced by the delay. In our order in A.C.&S., Inc., 4 BNA OSHC 1529, 1532 n.1, 1976-77 CCH OSHD para. 20,995 (Nos. 2097 etc., 1976), we brought our Coughlan holding to Mayfair's attention and requested it to state whether it desired a remand. Mayfair has, however, requested that the case be decided in its present posture. We therefore note the absence of any evidence of prejudice, n3 and that the evidence clearly demonstrates that the citation was issued with the promptness that the circumstances [*4] reasonably permitted. (see J.D. at 17-19). Inasmuch as respondent has been accorded a fair opportunity to litigate both these points, we reject respondent's "reasonable promptness" defense without extending an opportunity to present further evidence on the matter. Compare Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436, 1439, 1976-77 CCH OSHD para. 20,886 (Nos. 6804 & 6805, 1976).

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n3 In response to claims of prejudice by two other employers, Judge Rubin stated the following:

Allegations of prejudice arising from the delay in issuing the citations are made by Diesel Construction and A.C. and S. The former claims that it could suffer monetary damages. The latter, that the four-to-five month interval between the inspection and issuance of the last citations necessarily had a dulling effect upon Brickman's ability to recall the specifics of the investigation. Diesel Construction's reference to possible monetary damages relates to the temporary wiring violation. The record lacks concrete evidence to support this claim by Diesel Construction or any other respondent. The claim raised by A.C. and S. pertains to a matter of proof rather than prejudice. . . . It must be also noted that the defense of prejudice as it relates to the issue of reasonable promptness requires a demonstration of prejudice due to the delay. The degree of prejudice would be expected to be similar to that required by the defense of laches. "The prejudice normally contemplated in applying laches stems from such factors as loss of evidence and unavailability of witnesses which diminish the defendant's chances of success." Pete v. U.M.W., 352 F.Supp. at 1299 (D.C.C. 1973), citing Powell v. Zukert, 366 F.2d 634, 638 (D.C. Cir. 1966). Respondents' claims of prejudice do not meet this test.

J.D. at 19-20. See also Craig D. Lawrenz & Associates, Inc., 77 OSAHRC 60/D8, 4 BNA OSHC 1464, 1976-77 CCH OSHD para. 20,910 (No. 5540, 1976), and Long Manufacturing Co. v. O.S.H.R.C., No. 76-1518 (8th Cir., May 12, 1977).

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Effective Date Issue

Mayfair argues that because it entered into and began performance of its contract before the effective date provided in Subpart X of Part 1926, the construction industry standards in Part 1926 were not applicable to its work. The argument lacks merit. The effective date provision in Subpart X applies only to the operation of Part 1926 under the Construction Safety Act, n4 and has no application under the Occupational Safety and Health Act. Under OSHA, the effective date provision for the construction industry standards is found at 29 CFR 1910.17. See generally, Underhill Construction Corp., 75 OSAHRC 32/B8, 2 BNA OSHC 1556, 1974-75 CCH OSHD para. 19,276 (No. 1307, 1975), aff'd, 526 F.2d 53 (2d Cir. 1975); cf. Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD para. 20,503 (No. 5064, 1976), aff'd per curiam, No. 76-1365 (8th Cir., January 25, 1977).

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n4 40 U.S.C. 327 et seq., formally known as the Contract Work Hours and Safety Standards Act of 1969.

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Items Three and Five, Temporary Electrical Wiring and Unguarded Light Bulbs

1.

Judge Rubin affirmed that part of item three which concerned Article 305-2(c) of the National Electrical Code, NFPA 70-1971, ANSI C1-1971, as incorporated by reference in 29 CFR 1926.400(a). n5 That provision requires that temporary electrical power lines run as open conductors be fastened at ceiling height every 10 feet. Item five, also affirmed by Judge Rubin, concerned 29 CFR 1926.401(j)(1), which generally requires that "[t]emporary lights shall be equipped with quards to prevent accidental contact with the bulb . . . ." We affirm in part and reverse in part Judge Rubin's dispositions of these items.

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n5 Judge Rubin vacated those parts of item three dealing with NEC Articles 320-5 and 320-6(a). These actions are not before us here and we do not pass upon them.

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A network of temporary wiring provided power and light to most floors of the Sears [*7] Tower. The network consisted of about 200,000 feet of temporary wiring from which were suspended 4,000 to 5,000 light bulbs; a typical floor would have well over a thousand feet of such wiring with 90 bulbs and several power receptacles.

As originally installed by the electrical contractor, the temporary wiring was suspended from short pieces of wires at ceiling height every ten feet. Light bulbs were not guarded except in the stairways. As work progressed on the floors, however, various contractors would cut the suspension wires and sometimes the power lines themselves if they found the wiring to be in the way of work they performed at ceiling height. Thus, it was not unusual for temporary wiring to be supported at intervals greater than ten feet, to sag as low as five feet above the floor, and for cut wires to hang down to the floor. The compliance officer testified that about forty to fifty percent of the floors had about one to three low hanging wires. The electrical contractor repeatedly asked members of many trades not to cut wires or wire supports, and requested that it be contacted by contractors who wished to have wires relocated.

The evidence suggests only four areas [*8] or circumstances that might support the Judge's disposition: n6 the forty-third and sixtieth floors, the area on one of the lower floors where the concrete for a bank vault was poured, n7 and areas where Mayfair employees were encasing electrical conduit in concrete.

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n6 The respondent urges that the generalized, unspecific testimony by the compliance officer that Mayfair employees were affected because the conditions were pervasive should not be relied upon to support any affirmance of items three and five. Under the circumstances of this case, we must agree. See Weyerhaeuser Company, 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1981, 1976-77 CCH OSHD para. 21,465 (Nos. 1231 & 1758, 1977), pet. for review filed, No. 77-1611, 9th Cir., March 11, 1977.

n7 The floor on which this "vault area" was located was not specifically identified by the compliance officer, but the parties seem to have well understood its location.

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On the forty-third floor, Mayfair employees were engaged in work activities on an elevated landing. [*9] See the discussion of items seven, eight, and nine, infra. Above a walkway near this landing an unguarded bulb hung low. On the sixtieth floor, Mayfair employees were engaged in pouring, leveling, and smoothing the poured concrete floor. During this operation Mayfair employees used to smooth and level the concrete both a "bull float" (a flat panel made of magnesium or aluminum measuring three to four feet long and one foot wide, and having a handle at least 12 feet long) and pieces of wood sometimes as long as 15 to 16 feet. n8 The compliance officer testified, and the Judge found, that the light bulbs were not protected from contact with this equipment, and thus employees were exposed to the hazards of cuts from broken shards of glass, electrocution from live exposed filaments and wires, burns, fire, and darkened work areas.

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n8 The use of these tools and the frequent proximity of Mayfair employees to the unguarded lightbulsb results in our finding that these violations cannot be considered de minimis. Compare Illinois Bell Telephone Co., No. 2097 (   ).

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In the vault area, Mayfair employees were working within two feet of an unguarded bulb. Finally, Mayfair's Project Superintendent testified that Mayfair employees worked at ceiling height, and probably above the level of the temporary wiring and bulbs, while encasing electrical conduit in concrete.

It is our view, as it was in Illinois Bell Telephone Co., No. 2097 (9/26/77), that the evidence supporting item three is generally insufficient to satisfy the Secretary's burden of proof. We find insufficient evidence linking Mayfair employees to any of the potential hazards created by failure to fasten the temporary wiring at ceiling height every ten feet. Accordingly, item three is vacated.

Item five, however, stands on a different footing. There is clearly preponderant evidence showing that Mayfair employees were or would be exposed to the hazards associated with the unguarded lights on the forty-third and sixtieth floors, in the vault area, and during the encasement of the conduit. Respondent contends, however, that the item must be vacated because "Mayfair did not install the temporary lighting . . . and had no responsibilities [*11] regarding the guarding of the bulbs in said system." Respondent's Post Hearing Brief at 27.

2.

In Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHD 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976), we examined fully the application of section 5(a)(2) to the construction industry. The Commission comprehensively reconsidered and modified its policy and precedent in the light of the Seventh Circuit's decision in Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), and its growing experience with multiple-employer construction site cases. The decisions of the Second and Fourth Circuits in Brennan v. O.S.H.R.C. and Underhill Construction Company., 513 F.2d 1032 (2d Cir. 1975), and Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974) were also instrumental in the modification of policy.

The Commission held that a construction subcontractor whose own employees were either exposed or had access to a non-complying condition has not violated section 5(a)(2) of the Act if (1) he neither created the condition nor controlled [*12] it in the sense that he could not realistically correct the cited condition in the manner contemplated by the applicable standard; and (2) he protected his own employees with realistic measures taken as an alternative to literal compliance with the applicable standard, or he had neither actual nor constructive knowledge n9 that the violative condition was hazardous. In other words, we have required that a non-creating, non-controlling subcontractor having employees exposed to a hazard protect his employees from the hazard. What steps must be taken depends upon what is realistic under the circumstances. n10 A different holding would literally allow an employer to leave his employees at least temporarily in a hazardous situation that a standard is designed to prevent (cf. Kelley Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD para. 20,925 (No. 7102, 1976)), and, as noted in Grossman Steel, would ignore the ability of subcontractors to do at least something to protect their employees in most situations.

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n9 On the views of the members concerning the matter of employer knowledge, see generally, Data Electric Co., 77 OSAHRC 28/C14, 5 BNA OSHC 1077, 1977-78 CCH SOHD para. 21,593 (No. 13122, 1977) (lead and concurring opinions).

n10 For recent decision applying these principles, see Anatasi Brothers Corp., 5 BNA OSHC 1634, 1977-78 CCH OSHD para. 21,966 (No. 76-061, 1977); Paramount Plumbing & Heating Co., 77 OSAHRC 79/D14, 5 BNA OSHC 1469, 1977-78 CCH OSHD para. 21,820 (No. 12652, 1977). The Commission has issued decisions in at least twenty five cases dealing with multiple-employer issues.

[*13]

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We also indicated that both a general contractor, and a construction subcontractor who either creates or controls a violative condition, are required under section 5(a)(2) to comply fully with the standards or to assure that they are complied with. See, e.g. Jackson Construction Co., 77 OSAHRC 137/C14, 5 BNA OSHC 1608, 1977-78 CCH OSHD para. 21,981 (No. 13843, 1977).

We do not understand the opinion of the Seventh Circuit to foreclose our comprehensive examination of multiple-employer construction problems in light of our everyday experience, particularly that gained subsequent to the court's opinion. We have sought to make our solution responsive to the realities of safety and health in the construction industry. n11 See Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1263-1264 (4th Cir. 1974); cf. Gray v. Powell, 314 U.S. 402 (1941), and N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 130-131 (1944). We decline to read the court's narrowly couched opinion n12 as freezing interpretation of the duties of an "employer" for purpose of section 6(a)(2) when subsequent [*14] experience shows that a different approach is more consonant with the statutory purpose. This action is consistent with the Commission's primary adjudicatory role under the Act. See Brennan v. O.S.H.R.C. and Republic Creosoting Co., 501 F.2d 1196, 1199 (7th Cir. 1974); Southern Railway Co. v. O.S.H.R.C., 539 F.2d 335 (4th Cir.), cert. denied, 97 U.S. 525 (1976); Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); Brennan v. O.S.H.R.C. and Ron M. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975). Cf. I.T.O. Corporation of New England v. O.S.H.R.C., 540 F.2d 543 (1st Cir. 1976).

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n11 For a discussion of some of the realities of the construction industry, see Joel A. Forkosch, "OSHA Problems in the Construction Industry, Part One", Proceedings of the ABA National Institute on Occupational Safety and Health Law, 185, 205-206 (1976).

n12 We are cognizant of the narrow scope of the question decided by the court: the permissibility of the Commission's previous rule that imposed absolute liability resulting from employee exposure, regardless of whether the cited construction contractor on a multiple-employer construction site was realistically in a position to comply with occupational safety and health standards in the manner the standards contemplated. See 516 F.2d at 1086. The court was not presented with and therefore did not pass upon, the limited and different rules we subsequently fashioned in our decisions in Anning-Johnson and Grossman Steel. We think, there, that despite the breadth with which its language may be read, the court's opinion was primarily a criticism of the Commission decision in the case before it.

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3.

We now apply our precedent to the facts of this case. n13

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n13 In A.C.&S., Inc., note 1 supra, we offered respondent an opportunity to request a remand to the Administrative Law Judge so that additional evidence establishing its actions, and lack of expertise with respect to the ability to ascertain the hazardous nature of the alleged violations could be introduced, and called its attention to our decisions in Anning-Johnson and Grossman Steel which require an employer to establish these elements as part of its case-in-chief. On review, however, respondent indicated that it wishes to rest its position on the record before the Commission.

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Because Mayfair did not create the condition alleged in item five, we consider whether it controlled the conditions, i.e. whether it realistically had the means to rectify them in the manner contemplated by the standard. On balance, we conclude that the question must be answered [*16] in the negative, because we consider it unrealistic, in light of the low gravity of the hazard, to expect Mayfair to have provided and installed bulb guards on the exposed bulbs. This would create a redundancy in abatement that would cause disruption and confusion on the site. n14

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n14 See 516 F.2d at 1089. See also the Commission's power to order "appropriate relief." 29 U.S.C. 659(c).

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Nevertheless, the unguarded light bulbs presented obvious hazards to respondent's employees, especially those bulbs that were low hanging. Compare A.A. Will Sand & Gravel Corp., 76 OSAHRC 81/G2, 4 BNA OSHC 1442, 1976-77 CCH OSHD para. 20,864 (No. 5139, 1976). In addition, there is no evidence that respondent made any attempt to give notice of the hazards to the electrical subcontractor or general contractor, even though the record indicates that the electrical subcontractor was generally receptive in responding to complaints. Item five is accordingly affirmed.

Items Four and Six, Extension Cord Insulation

Item [*17] four of the citation alleged that the plug of an electrical cord connected to Mayfair's vibrator machine used for concrete-finishing work on the sixtieth floor was missing an insulating cover between its terminal screws, contrary to NEC Article 410-52(d), incorporated by reference in 29 CFR 1926.400(a). Item six concerned the same cord and alleged that, contrary to 29 CFR 1926.402(a)(10), the cable was worn and frayed at the point where it met the attachment plug. That the condition of the cord did not meet the standards is not disputed by respondent. Instead, respondent maintains that evidence is insufficient because the cord was not in use or "plugged in" at the time of the inspection. Judge Rubin rejected this argument, concluding that it was enough that the vibrator machine was available for use. We agree. Harold Christiansen, et al., 76 OSAHRC 39/D10, 4 BNA OSHC 1020, 1975-76 CCH OSHD para. 20,517 (No. 3108, 1976); Huber, Hunt, Nichols & Blount Bros., 76 OSAHRC 71/A2, 4 BNA OSHC 1406, 1976-77 CCH OSHD para. 20,837 (No. 6007, 1976); Morris Enterprises, Inc., 77 OSAHRC 44/F8, 5 BNA OSHC 1248, 1977-78 CCH OSHD para. 21,717 (No. 12283, 1977). The Judge's disposition [*18] of items four and six is accordingly affirmed.

Items Seven, Eight, and Nine -- Portable Ladder

Items seven, eight, and nine relate to a ladder on the forty-third floor. On August 31, 1972, compliance officer Brickman observed a portable ladder set up against a landing platform seven to eight feet above the floor. Contrary to 29 CFR 1926.450(a)(9), (10), and (b)(12), the ladder extended less than 36 inches above the landing, was not tied, blocked or otherwise secured to prevent displacement, and its cleats were more than 12 inches apart. The primary question before us is whether the persons seen using the ladder at the time of inspection were Mayfair employees. n15 Judge Rubin found that they were.

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n15 Because our disposition is predicated on a finding of actual exposure, it is unnecessary to discuss whether the evidence was also sufficient to show access under Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976), on remand from 504 F.2d 1255 (4th Cir. 1974).

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Before the inspection of the Sears Tower site began, Mayfair's Project Superintendent signed the following form authorization: n16

The following named individuals are authorized by me to act for my company as employer representatives for the purposes of making a compliance inspection of the construction of the Sears Tower . . . in accordance with PL 91-596.

One of the two designated persons was Brian Langley, an employee of Diesel Construction Company, the general contractor. During the inspection of the forty-third floor, the compliance officer observed two persons using the ladder in question. He testified, over respondent's objection, that Mr. Langley identified the employees as Mayfair's. The employees were apparently stripping concrete forms, work which Mayfair, as a concrete contractor, would have its employees perform.

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n16 Respondent does not argue that this authorization was ineffective.

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In his decision Judge Rubin considered the statements made by Mr. Langley to the compliance officer. [*20] He also considered that in respondent's daily force report for the day in question, there were no entries indicating that work was performed on the forty-third floor by Mayfair employees, although there was an entry for the forty-fourth floor. Mayfair's Project Superintendent testified that it was nevertheless possible for Mayfair employees to have done some work on the forty-third floor landing platform and that the work activities observed on the landing platforms is the type performed by respondent. The Judge held that the lack of an entry regarding the forty-third floor in the daily force report "does not rebut the identification made by Langley, employer representative on the inspection" and that this identification "is buttressed by the type of work in which the men were engaged." J.D. at 132-133.

Under Fed. R. Evid 801(d)(2)(D) n17 the statements of this agent that were related by the compliance officer are not hearsay (compare Paramount Plumbing & Heating Co., Inc., 77 OSAHRC 79/D14, 5 BNA OSHC 1459, 1461, 1977-78 CCH OSHD para. 21,820 (No. 12652, 1977)). We have several times found statements of this kind to have probative value, especially where as in this case they [*21] are corroborated by other evidence. See e.g., A.J. McNulty & Co., Inc., 76 OSAHRC 46/D2, 4 BNA OSHC 1097, 1099 n.5, 1975-76 CCH OSHD para. 20,600 (No. 2295, 1976); cf. Weyerhaeuser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1974-75, 1976-77 CCH OSHD para. 21,465 (Nos. 1231 & 1758, 1977), pet. for review filed, No. 77-1611, 9th Cir. March 11, 1977. We also find that the Judge's finding reflects the preponderance of the evidence, and we adopt it as our own.

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n17 We apply the Rules retroactively here under the guidelines noted in Truland-Elliot, A Joint Venture, 4 BNA OSHC 1455, 1457, n.8, 1976-77 CCH OSHD para. 20,908 (No. 11259, 1976).

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Mayfair argues additionally that the items should be vacated because it did not control the ladder in question or create its violative conditions. It points principally to its lack of ownership of the ladder.

A lack of ownership alone does not amount to a lack of control. Cf. Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1009, 1975-76 CCH OSHD [*22] para. 20,503 (No. 5064, 1976), aff'd per curiam, No. 76-1365 (8th Cir., January 25, 1977). It is clear that respondent did not create the violative condition. We inquire, therefore, whether respondent had realistic means to rectify the conditions in the manner contemplated by the cited standards in 1926.450(a) and (b).

With respect to items seven (the extension less than 36 inches above the landing) and nine (cleats more than twelve inches apart), we find that the record reflects a lack of control. Because abatement of these conditions would have required that the ladder be structurally altered, it is unrealistic to expect Mayfair to have performed the alterations.

The same cannot be said, however, of item eight, i.e. the lack of any means to prevent accidental displacement of the ladder. We have examined the photograph depicting the ladder in question. In view of the probable ease with which the wooden ladder could have been tied or blocked, and the employment by Mayfair of carpenters, we are not persuaded that respondent lacked the realistic means to rectify the condition. Moreover, even if respondent did lack control, there is no evidence that respondent could not [*23] have recognized this condition as hazardous or taken alternative measures to protect its employees, such as requesting corrective action from the general contractor, or the contractor that had created these conditions. We accordingly affirm item eight.

As to item nine (the cleats), we are persuaded from our examination of the photograph of the ladder that the cleats were not spaced far enough apart to appear hazardous to respondent as a reasonably diligent employer. Thus, we vacate item nine.

Item seven (extension of ladder less than 36 inches above landing) must however be affirmed. Even though respondent did not control the violative condition at issue, the complete lack of any extended ladder rails presented a patent hazard. Moreover, respondent does not allege that it took alternative protective measures, such as bringing the condition to the attention of the general contractor or the subcontractor who created this condition. Compare Derr Construction Co., 77 OSAHRC 67/A2, 5 BNA OSHC 1333, 1335-1336, 1977-78 CCH OSHD para. 21,792 (No. 4179, 1977) (opinions of Chairman Barnako and Commissioner Cleary).

Item Twelve, Unguarded Open-sided Floors

Judge Rubin found [*24] that on the sixtieth floor n18 Mayfair employees working at the edge of the building were not accorded the guardrail protection required by 29 CFR 1926.500(d)(1). Respondent does not dispute that there were no standard top railings or midrails, and does not take issue with the Judge's finding of actual exposure of Mayfair employees. Mayfair does, however, rely heavily on the presence of steel cables on the perimeter. The standard cited, and other pertinent provisions of 1926.500, read as follows:

1926.500 Guardrails, handrails, and covers.

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(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides . . . .

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(f) Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor . . . . The intermediate rail shall be halfway between the top rail and the floor . . . . Minimum requirements [*25] for standard railings under various types of construction are specified in the following paragraphs:

(i) for wood railings, the posts shall be of at least 2-inch by 4-inch stock spaced not to exceed 8 feet; the top-rail shall be of at least 2-inch by 4-inch stock; the intermediate rail shall be of at least 1-inch by 6-inch stock.

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(iv) The anchoring of posts and framing of members for railings of all types [see 1926.500(f)(1)(ii) and (iii), omitted here] shall be of such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection.

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(vi) Other types, sizes, and arrangements of railing construction are acceptable, provided they meet the following conditions:

(a) A smooth-surfaced top rail at a height above floor . . . level of approximately 42 inches;

(b) A strength to withstand at least the minimum requirements of 200 pounds top rail pressure with a minimum of deflection;

(c) Protection between top rail and floor . . . equivalent at least to that afforded by a standard intermediate rail;

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n18 Neither the citation nor the complaint specified any particular location where the violation was alleged to have occurred. Judge Rubin found a violation only as to the sixtieth floor. Inasmuch as complainant has not excepted to this narrow finding, we review the Judge's finding solely with reference to the sixtieth floor.

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As a reading of the standard makes clear, open-sided floors must be guarded with either standard guardrails or their "equivalent." n19 The elements of equivalence pertinent here are found in subdivisions (b) and (c) of paragraph (f)(1)(vi). We have examined the evidence in the light of the pertinent provisions of paragraph (f)(1)(vi), and conclude that the cables used on the sixtieth floor do not meet their requirements.

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n19 See Warnel Corporation, 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1035, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976) (physical barrier required; safety belts not "equivalent"); Dic-Underhill, A Joint Venture, 77 OSAHRC 46/A2, 5 BNA OSHC 1271, 1273 n.4, 1977-78 CCH OSHD para. 21,721 (No. 9561, 1977) (single, slack manila rope not "equivalent"). Cf. Dorey Electric Co., 74 OSAHRC 61/E2 at 237, 2 BNA OSHC 3133, 1973-74 CCH OSHD para. 18,338 (No. 4598, 1974) (Administrative Law Judge), aff'd per curiam, 553 F.2d 357 (4th Cir. 1977) (employer failed to prove unavailability of equivalent means).

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At the hearing, it was the theory of the Secretary that the cable arrangement was inadequate in two respects: (1) that the cables could be more than minimally deflected under 200 pounds of pressure; and (2) there was no second cable serving as the equivalent of a midrail. n20

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n20 There is no allegation that the top cables were not the proper height off the floor, or that they would have completely failed under 200 pounds of pressure. Indeed, the top cables were about 40 inches off the floor, and the compliance officer testified that the cables would not have failed completely under 200 pounds of pressure. (Tr. XVI, 7-8).

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Compliance officer Brickman testified that the cables on the sixtieth floor had enough slack to reach from the point on the columns where they were hung to the perimeter of the building, a distance of about 18 to 24 inches. Mayfair's Project Superintendent testified that the cables had about three to five inches of [*28] slack and were not taut. Judge Rubin apparently credited the testimony of the compliance officer, rather than Mayfair's Project Superintendent. He found that the cables were not secured against movement, and that they were only single calbes protecting the perimeter.

To the extent that the Judge's finding on slackness reflects his view of the credibility of the witnesses, we have no reason in this case to disturb it. See e.g., CTM, Inc., 77 OSAHRC 136/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1977). Similarly, we uphold the Judge's finding that there was on the sixtieth floor no intermediate wire rope serving the function of a standard intermediate rail. Although the issue is not free of doubt, the record, viewed in the light of the Judge's credibility evaluation, does not warrant reversal here. Inasmuch as the cables could be more than minimally deflected and were not used with a second cable serving as a mid-rail, the cables cannot be said to be the equivalent of a standard guardrail.

Finally, we find no indication in the record that respondent falls within our decisions governing multiple-employer construction sites. There is no basis [*29] to find here that Mayfair could not have taken realistic steps to comply with the standard or limit the access of its employees to the perimeter until the condition was corrected by another employer who created or controlled it. Mayfair's general policy, which was not followed in this case, contemplated that Mayfair employees would also contact the general contractor so that the condition would be remedied. In any event, it does not appear that the state of the perimeter guarding could not have been recognized as hazardous, and we note that respondent took no alternative protective measures. Accordingly, item twelve is affirmed.

In view of the low gravity of the violations here, the good faith of the respondent, lack of history of previous violations, and the other circumstances of this case, we find that the assessment of penalties would not be appropriate.

Accordingly, it is ordered that items 4, 5, 6, 7, 8, and 12 are affirmed, and that items 3 and 9 are vacated. No penalties are assessed.

So ORDERED.