SECRETARY OF LABOR,
Complainant,

v.

SKYLINE CRANE SERVICE, INC.,
Respondent.

OSHRC Docket No. 80-6032

ORDER VACATING DIRECTION FOR REVIEW

Before:  BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:

On August 23, 1982, Administrative Law Judge Benjamin G. Usher affirmed a multiple item citation that alleged that Skyline Crane Service failed to provide adequate fall protection for its employees engaged in structural steel erection on a project in Fairfax, Virginia.

The central issue on review is whether, at the time of the inspection in 1980, Skyline had fair notice that it was obligated to provide perimeter nets under the general construction industry standard at 29 C.F.R. 1926.105.   Skyline contends that it lacked such notice because the construction standards specifically applicable to steel erection under Subpart R of Part 1926 do not require such protection, and because the Secretary generally was not issuing citations to steel erection employers for lack of perimeter nets.

The Fourth Circuit, where this case arose, has held that Subpart R does not preempt the general standard requiring personal protective equipment to guard against hazards which are not covered by that subpart.  Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979).  Bristol did not, however, address whether the fall protection requirements in the steel erection standards preempt any obligation of steel erectors to provide perimeter nets under section 1926.105.  After the issuance of the citation here, there have been several decisions in other circuits that have elaborated upon the reasoning in Bristol and specifically concluded that steel erection standards do not preempt any requirement in section 1926.105 to use perimeter nets in circumstances similar to those here.[[1]]  The Secretary has also issued an instruction explicitly stating that during structural steel erection, perimeter fall protection, including perimeter nets, is required under section 1926.105.  The document directs OSHA field personnel to issue citations accordingly.  OSHA Instruction STD 3-3.1 (July 18, 1983), reprinted in 1 BNA OSH Rep. Ref. File 21: 9118 and in 1982-83 CCH Employ. S. & H. Guide New Developments 12,855.

In view of these developments in the case law and in the Secretary's enforcement policy, the issue of whether a steel erect on employer in the Fourth Circuit has fair notice of an obligation to provide perimeter nets for fall protection is in a completely different posture now than it was in 1980.  A decision on whether Skyline had notice of such a requirement when this case arose would not establish whether Skyline, or other steel erection employers, have notice of a need for perimeter nets under the current state of the law.  Since Skyline's construction project has been completed, abatement of the alleged fall hazards is not in controversy.   Under these circumstances, we conclude that review is no longer provident.  See Paschen/Morrison-Knudsen/Kenny, a Joint Venture, 86 OSAHRC _____, 12 BNA OSHC 1827, 1986 CCH OSHD 27,571 (No. 80-6448, 1986); P & Z Co., 82 OSAHRC 8/C8, 10 BNA OSHC 1427, 1982 CCH OSHD 25,937 (No. 76-431, 1982); A. C. & S., Inc., 76 OSAHRC 93/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD 20,955 (No. 2229, 1976).

Accordingly, the direction for review is vacated; the judge's decision is the final order of the Commission.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 16 1987


 

SECRETARY OF LABOR
Complainant

v.

SKYLINE CRANE SERVICE, INC.,
Respondent

OSHRC DOCKET NO. 80-6032

DECISION AND ORDER

Appearances:

Michael S. Berger, Esq.
Office of the Regional Solicitor

U. S. Department of Labor
Philadelphia, Pennsylvania

for the Complainant

James Brent Clarke, Jr., Esq.
Washington, D. C.

and

David R. Clarke, Esq.
Fairfax, Virginia

for the Respondent

Usher, Judge:

These proceedings were initiated by the Secretary of Labor, United States Department of Labor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. ("the Act").  The Secretary seeks affirmance of two Citations charging several "serious" and "other than serious" violations of Section 5(a)(2) of the Act and seeks further the assessment of a $780 penalty.[[1/]]

The Citations, resulting from an inspection of Respondent's worksite at Fairfax, Virginia, on July 31 through August 14, 1980, were issued on September 11, 1980.  Respondent filed a timely Notice of Contest; a Complaint and Answer were filed in accordance with the Commission's Rules of Procedure; and the issues were tried before me at Washington, D. C., on March 17 and 18 and April 27 and 28, 1981.  No employee or employee representative sought party status pursuant to Rule 20(a) of the Commission's Rules of Procedure (29 CFR 2200.20(a)).

The parties have fully briefed their positions.

The Issues.
The pleadings, evidence adduced by the parties, arguments of counsel, and their post-trial briefs have served to raise the following issues:  1) whether the safety standards cited by Complainant in Citation No. 1, viz., 29 CFR 1926.28(a), 29 CFR 1926.105(a) and 29 CFR 1926.105(c)(1), are applicable to Respondent, his business endeavors, and the activities of his employees at the time of the inspection; 2) whether Respondent was "selectively" cited for the violations alleged in Citation No. 1;  3) whether the aforementioned safety standards referred to in Citation No. 1 are unacceptably ambiguous and thus unenforceable;  4) if these safety standards are enforceable and applicable to Respondent, whether Respondent violated Section 5(a)(2) of the Act as charged in Citation No. 1 and the Complaint;  5) whether Respondent violated Section 5(a)(2) of the Act because of its failure to comply with the provisions of the safety standard codified at 29 CFR 1926.752(j), as also charged in Citation No. 1;  6) whether Respondent violated Section 5(a)(2) of the Act as charged in Citation No. 2;   7) if violative conduct on Respondent's part was proved, whether the violations set forth in Citation No. 1 are properly characterized as "serious" as defined in Section 17(k) of the Act;  and 8) if violations were proved, what penalties, if any, are appropriate.[[2/]]

The Citations issued by Complainant on September 11, 1980, read, in full, as follows:

(Citation No. 1 - "Serious"):

The violations described in this citation are alleged to have occurred on or about the day the inspection was made unless otherwise indicated within the description given below.

la
29 CFR 1926.28(a) and 1926.105(a):  Employee(s) were not protected against falls of more than 25 feet by the use of safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, safety belts, or other appropriate personal protective equipment:

(a) Fifth Floor, North End - Employees walking and working at edge, welding and carrying materials and were not protected from falling approximately sixty feet to the ground, on 7/31/80.

(b) Fifth Floor, South End, on 8/5/80.

1b

29 CFR 1926.105(c)(1):  Nets did not extend 8-feet beyond the edge of the work surface where employees were exposed:

(a) Fifth Floor - Employees walking and working at the edge, welding and carrying material, on 7/31/80.

2
29 CFR 1926.752(j):  All unused openings in floors, temporary or permanent, were not completely planked over or guarded by standard railings or equivalent:

(a) Second Floor - openings on East Side, 13-feet six-inches by three and a half feet and six feet by eight and a half feet; South Side, seventy five-feet by nineteen-feet and eight inches, exposing employees to a fall of approximately twenty five-feet, on 7/31/80.

(Citation No. 2 - "Other Than Serious"):

29 CFR 1926.352(d):  Suitable fire extinguishing equipment was not immediately available in the work area(s) where welding, cutting, or heating was being performed:

(a) First Floor, Wouth [sic] Side, - Employee using Lincoln Arc Welder, on 8/6/80.

Abatement of the conditions described in the Citations was ordered "immediately;" and penalties of $420 (for item 1a of Citation No. 1) and $360 (for item 2 of Citation No. 1) were proposed by Complainant.

The safety standards referred to in the Citations provide, in pertinent part:

29 CFR 1926.28 - Personal Protective Equipment

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

29 CFR 1926.105 - Safety Nets

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

(b) . . .

(c)(1) Nets shall extend 8 feet beyond the edge of the work surface where employees are exposed and shall be installed as close under the work as practical but in no case more than 25 feet below such work surface.  Nets shall be hung with sufficient clearance to prevent user's contact with the surfaces or structures below.  Such clearances shall be determined by impact load testing.

(2) . . .
29 CFR 1926.752 - Bolting, Riveting, Fitting-Up, and Plumbing-Up
* * *
(j) All unused openings in floors, temporary or permanent, shall be completely planked over or guarded in accordance with Subpart M of this part.

29 CFR 1926.352 - Fire Prevention
***
(d) Suitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use.

The safety standards codified at 29 CFR 1926.28(a) and 29 CFR 1926.105(a) and (c)(1) are included in Subparts C and E of the regulations and are commonly referred to as the "general construction standards."  Subpart R of the regulations (codified at 29 CFR 1926.750 through 1926.752) is specifically entitled "Steel Erection."   Subpart M (referred to in the standard codified at 29 CFR 1926.752(j)) is a "general construction" standard which requires guardrails, handrails and the covering of floor openings, stairways, etc.  All of Part 1926 (subparts A through Z) is entitled "Construction Industry Standards and Interpretations."[[3/]]

Applicability of the Standards
Respondent's counsel has argued at great length that the "general construction" standards codified at 29 CFR 1926.28(a) and 1926.105(a) and (c)(1) are not applicable in this instance -- do not apply to this Respondent, engaged in steel erection because "Respondent was not given fair notice that the perimeter net requirements [and personal protective requirements] apply to the steel erection of tiered structures."   He adduced evidence to support that contention, specifically the testimony of a State of Maryland Occupational Safety and Health ("OSHA") inspector and a former District of Columbia OSHA official who now consults for employers.  Their opinion testimony was not persuasive.  He cites further the opinions of two administrative law judges of this Commission who agree with him.  See Secretary of Labor v. L. R. Wilson and Sons Incorporated, OSHRC Docket No. 80-5866, CCH OSHD 25,842 (November 16, 1981) and Secretary of Labor v. Williams Enterprises, Inc., OSHRC Docket No. 81-0381, CCH OSHD 25,930 (January 20, 1982); but, see Secretary of Labor v. L. R. Wilson and Sons, Inc., OSHRC Docket No. 80-2760, 9 BNA OSHC 1936.  I disagree.

This Respondent is admittedly engaged in steel erection, and its employees were performing steel erection at the time the OSHA Compliance Officer ("CO") observed them.  The employees were working approximately sixty feet above ground level and were not protected by any means (at times) from falls from the perimeter that would have resulted in serious injury or, perhaps, death (see evaluation of the evidence, infra.).

From the record it clearly appears that the OSHA and its counsel (the Office of the Solicitor) are in a quandry about how to -- or, rather whether to -- require the protection of steel erection workers from injury or death.   See Transcript, pages 569 to 725 (and the exhibits mentioned therein).  I am not.

Fairfax, Virginia, the site of the alleged violative conduct, is within the jurisdiction of the United States Fourth Circuit Court of Appeals, and the ruling of that court in Bristol Steel and Iron Works, Inc., v. OSHRC, et al., 601 F.2d 717, 721, is the controlling law.  The logic of Bristol is clear:

The declared purpose of the Act is 'to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources * * *.' 29 U.S.C. 651(b).  Being remedial and preventative in nature, the Act must 'be construed liberally in favor of the workers whom it was designed to protect * * *.'  While the Act substantially contemplates specific safety standards promulgated by the secretary, * * *, its purposes are also effectuated by the general safety standards and the general duty clause which are designed to fill those interstices necessarily remaining after the promulgation of specific safety standards.
* * *
Infinite hypotheticals can be envisioned in which employees engaged in steel erection would be exposed to an unnecessary hazard not covered by a Subpart R specific safety standard.  The general safety standard dealing with personal protective equipment found in 29 C.F.R. 1926.28(a) complements the Subpart R specific standards dealing with steel erection by requiring 'the wearing of appropriate personal protective equipment [where there is a need] for using such equipment to reduce the hazards to the employees.'
***
We agree with the First and Ninth Circuits that the reasonable man test should not be limited to the custom and practice of the industry.  While the custom and practice of most industries will adequately protect employees from hazardous conditions, the inquiry must be broad enough to prevent an industry, which fails to take sufficient precautionary measures against hazardous conditions, from subverting the underlying purposes of the Act.   In determining whether Bristol violated 1926.28(a), the appropriate inquiry is whether under the circumstances a reasonably prudent employer familiar with steel erection would have protected against the hazard of falling by the means specified in the citation.   (Footnotes and citations omitted.)

Thus, the "general construction" standards are applicable in this instance "to assure . . . safe and healthful working conditions [for steel erectors] and to preserve our human resources."  Thus, Respondent did have "fair notice that the perimeter net requirement of 29 CFR 1926.105 applied to the steel erection of tiered structures."  The Court of Appeals gave such notice on June 25, 1979.

Selectivity for Prosecution.
Respondent's contention that the application by Complainant's agents of the "general" safety standards to the steel erection industry is not Nation-wide may have some validity in fact, but its argument that such conduct by Complainant invalidates the Citations issued here has no basis in the law.  Respondent has shown no impermissible motive in Complainant's selection of offending steel erectors, e.g., this Respondent.  Government agencies need not cite, apprehend or prosecute every violation of a law in order to validate their prosecution of a particular defendant or respondent.[[4/]]

Vagueness of Standards.
Respondent contends that the cited safety standards which require fall protection (personal protective equipment and safety nets) are "unenforceably vague," and its counsel has successfully argued that contention before two different administrative law judges in recent months.  I disagree.  The requirements of the three safety standards set forth in Citation No. 1 appear clear enough to apprise an employer -- whose employees are exposed to falling hazards -- what he is obliged to do to eliminate the hazards, or at least to reduce the risk.  The Commission and several courts of appeals have likewise not been confused regarding the requirements of the standards in question.  See, for example:  Secretary of Labor v. Vicon Corporation, CCH OSHD 25,749 (1981); Secretary of Labor v. Bristol Steel and Iron Works Inc., et al., 667 F.2d 1025 (6th Cir. 1981); Cleveland Consolidated, Inc. v. OSHRC, et al., 649 F.2d 1160 (5th Cir. 1981); Secretary of Labor v. Bethlehem Steel Corporation, OSHRC Docket No. 16067, 10 BNA OSHC 1264 (1980).

Summary of the Evidence.
The OSHA CO, Josephine Hopkins, visited the site of Respondent's construction activities at 8401 Arlington Boulevard, Fairfax, Virginia, on several days during the period from July to August 14, 1980.  She visually observed the employees' activities and spoke with them; she measured and photographed what she saw; consulted with Respondent's supervisory personnel; and at the conclusion of the investigation, she recommended the issuance of Citations which are contested here.

The CO observed Respondent's employees putting steel beams and plates in place and connecting, bolting and welding them.  The employees worked at the edges ("perimeter") of the building some 60 feet above the ground.[[5/]]  No perimeter safety nets were installed to prevent the employees' falling to the ground from their workplaces atop the fifth floor of the building, and the employees were not always tied off to safety lines attached to safety belts.

Respondent had erected safety cables around the perimeter of the building, and the steelworkers wore safety belts with lanyards attached.   Pat Goodwin, Respondent's foreman, testified that he reminded his employees to tie off to the lanyard when they worked at or near the edge of the building.  However, there is considerable doubt that it was always possible to do so, and the CO's testimony certainly supports the conclusion that the employees were not always protected from falls as they performed certain of the tasks on the roof top.  That testimony was confirmed by employee Michael Russell,[[6/]] foreman Goodwin, and Respondent's president.   Referring to the columns to which the employees' safety lanyards were to be tied, Russell said:

. . . one column here and one column there . . . say 25 or 30-foot distances, you can't tie off when you're in the middle because there is no place to put up cables to tie off to [and] you can hardly tie off with a six foot rope, all the time [when you're] laying deck, because you're constantly walking from the pile to the end and back . . . only in certain instances are you at the perimeter of the building . . . occasionally you would have to go out there [to the perimeter or edge of the roof] and mask the deck to get it in. With a six-foot rope you could not reach the spot.  (Tr. 519, 520.)

More specifically, in answer to Complainant's counsel's question: ". . . there are certain times when you were laying deck that you had to go to the perimeter . . . and during those certain occasions, on this job, you could not use your safety rope?"  Russell answered, "Yes" (Tr. p. 519, 520).  He also answered affirmatively the question:  "When you were working laying deck, were there times when you were on the perimeter of the building exposed to a fall of more than 25 feet?"  (Tr. 512).

The Respondent's president, Richard McSpadden,, likewise testified that the employees worked "at the perimeter" of the building connecting steel, bolting steel and laying the steel decking.  He admitted that they were "exposed to the perimeter" and "exposed at some times to falls in excess of 25 feet from the perimeter:"  He further admitted that it was hazardous for employees to weld, bolt and connect steel at or near the perimeter of the building's floors without fall protection (Tr. pp. 94-97).  Thus, the CO's testimony that she observed employees working, walking or standing at the very edge of decked floors or on the beams of undecked floors of the building was confirmed by Respondent's representatives and its employee, Russell.  One of the three employees whom the CO observed on August 5, 1980, welding at "the very edge" of the fifth floor, approximately 60 feet above the ground, was identified as McSpadden's son.  Not only was he not tied off to a safety line, but he was not even wearing a safety belt to use to tie off if there was a line.  According to the testimony of the CO, she was accompanied by the foreman Goodwin, at the time, and he then instructed employee McSpadden to go to the trailer to obtain a belt and lanyard.  The others were instructed by Goodwin to use their belts and lanyards (Tr. pp. 240-245).

The CO testified that she observed openings in the decked floor which were not planked over or guarded by a railing to prevent employees from falling through to the floor below.[[7/]]  Respondent's employees used this floor to gain access to higher and lower floors as they worked, according to the testimony, and they were thus exposed to the falling hazard presented (Tr. pp. 316, et seq.). Employee Russell likewise testified to the existence of the uncovered, unguarded floor openings and the employee access or exposure to the hazard which they presented (Tr. pp. 497-498, 512).

Complainant charged an "other than serious" violation of the safety standard codified at 29 CFR 1926.352(d) because fire extinguishing equipment was not immediately available in an area where welding was being performed by one of Respondent's employees.[[8/]]  The CO brought this fact to the foreman's attention as they observed that an extinguisher was not provided in the area, according to the CO's testimony, and the foreman (Goodwin) then went to the floor below to bring a fire extinguisher to the place where it might be needed.  The CO stated that she characterized the violation as "other than serious" because there was in fact no flammable or combustible material in the immediate area where the cutting, welding or burning was being performed, and thus she concluded that a substantial probability of resulting death or serious physical injury did not exist.

The CO testified that Goodwin was with her when she observed the absence of the fire extinguishing equipment; neither he nor any other witness controverted her testimony concerning that asserted fact.

Evaluation of the Evidence
The evidence adduced by Complainant leaves no doubt regarding the facts essential to a finding that Respondent allowed the conditions described by the CO to exist at the worksite it maintained at Fairfax, Virginia, on July 31 through August 14, 1980, viz.: 1) employees working more than 25 feet above the ground were not protected against falls by the use of safety nets, ladders, scaffolds, catch platforms, temporary floors, or (in some instances) by the use of safety belts or lanyards tied to safety lines; 2) no safety nets were installed beyond the edge (perimeter) of the work surfaces where employees were exposed to the hazard of falling 25 feet or more; 3) unused floor openings were not planked over, or otherwise covered, or guarded by railings; and 4) fire extinguishing equipment was not provided where welding was being performed by Respondent's employee.

The evidence adduced by Respondent through its president, foreman, and employee (Russell) failed to contradict Complainant's CO insofar as her testimony regarding what she observed is concerned.  She observed violations of the safety standards promulgated by Complainant.  The cited safety standards are applicable here; they are not unenforceably vague, and those standards were violated by Respondent in the manners and at the times and place asserted by Complainant's agent.

The CO opined that the violations set forth in Citation No. 1 are "serious" because a 60-foot fall by an employee from the top of the building (or a 12-foot fall through an unguarded floor opening) would result in death or serious physical harm.  I agree.

The Penalties.
The CO proposed that penalties totaling $780 be assessed for the violations set forth in Citation No. 1 (Items 1 and 2).  Using the $1,000 mandatory penalty for a serious violation (Section 17(b) of the Act), she considered the "gravity" of the violations and Respondent's "size", "good faith" and the history of its compliance with the Act's provisions, and she made adjustments accordingly (Tr. pp. 256-258).

I find no fault with her reasoning, and, giving due consideration to the factors set forth in Section 17(j) of the Act, the proposed penalties are appropriate and will be assessed.

FINDINGS OF FACT
A preponderance of the probative evidence of record, taken in its entirety, compels the following findings of fact:

1.  Respondent, a corporate entity, is engaged in the business of construction, specifically steel erection, in the Commonwealth of Virginia and in other states (e.g., in Tennessee and North Carolina)
2.  Goods and materials used by Respondent in its business activities are shipped in interstate commerce from extrastate sources.
3.  During the period July 31 to August 14, 1980, Complainant's agent conducted an inspection of the worksite maintained by Respondent at 8401 Arlington Boulevard, Fairfax, Virginia.
4.  At the time and place specified in Finding of Fact numbered 3, Respondent's employees worked more than 25 feet above the ground level and were not protected against the hazard of falling 25 feet or more by the use of safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, safety belts, or other appropriate protective equipment or installation.
5.  At the time and place specified in Finding of Fact numbered 3, safety nets did not extend eight feet beyond the edge of the work surface (perimeter of the building being constructed by Respondent) where Respondent's employees were exposed to the hazard of falling 25 feet or more.
6.  At the time and place specified in Finding of Fact numbered 3, unused openings in the floors of the building being constructed by Respondent were not fully planked over or guarded by railings to protect its exposed employees from falling hazards.
7.  At the time and place specified in Finding of Fact numbered 3, Respondent's employee engaged in a welding operation, and suitable fire extinguishing equipment was not immediately available in the work area.
8.  The conditions described in Findings of Fact numbered 4, 5 and 6 presented a substantial probability that death or serious physical harm could result to Respondent's employees, and Respondent knew of the presence of these conditions.
9.  The condition described in Finding of Fact numbered 7 did not present a substantial probability of resulting death or serious physical harm.

CONCLUSIONS OF LAW
1.  Jurisdiction of the parties and of the subject matter herein is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.
2.  At all times relevant hereto, Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and as such was subject to the requirements of Section 5(a)(2) of the Act.
3.  On or about July 31 and August 5, 1980, Respondent violated Section 5(a)(2) of the Act by its failure to comply with the safety standards promulgated by Complainant and codified at 29 CFR 1926.28(a) and 29 CFR 1926.105(a).
4.  On or about July 31, 1980, Respondent violated Section 5(a)(2) of the Act by its failure to comply with the safety standard promulgated by Complainant and codified at 29 CFR 1926.105(c)(1).
5.  On or about July 31, 1980, Respondent violated Section 5(a)(2) of the Act by its failure to comply with the safety standard promulgated by Complainant and codified at 29 CFR 1926.752(j).
6.  On or about August 6, 1980, Respondent violated Section 5(a)(2) of the Act by its failure to comply with the safety standard promulgated by Complainant and codified at 29 CFR 1926.352(d).
7.  The violations described in Conclusions of Law numbered 3, 4 and 5 are "serious" in nature; the violation described in Conclusion of Law numbered 6 are "other than serious" (Section 17(k) of the Act).

ORDER

Upon consideration of the foregoing findings and conclusions, it is hereby ORDERED that the Citations issued to Respondent by Complainant on September 11, 1980, are AFFIRMED, and penalties totaling $780 are ASSESSED.

BENJAMIN G. USHER
JUDGE, OSHRC
Dated:  August 23, 1982

New York, New York

[[1]] See, e.g., Brock v. L.R. Willson & Sons Inc., 773 F.2d 1377 (D.C. Cir. 1985); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804 (3d Cir. 1985); Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir. 1985).

[[1/]] Section 5(a)(2) of the Act requires:

Each employer
***
shall comply with occupational safety and health standards promulgated under this Act.

[[2/]] Section 17 of the Act provides, in pertinent part:

(a) ***

(b) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1,000 for each such violation.

(c) Any employer who has received a citation for a violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of regulations prescribed pursuant to this Act, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.
***
(j) The Commission shall have authority to assess all civil penalties provided in this section, 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.

(k) For purposes of this section, 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.

[[3/]] As opposed to the "General Industry Standards and Interpretations" which are codified at Part 1910 of the Code of Federal Regulations and the "Maritime Standards and Interpretations" codified at Part 1915 of the Code of Federal Regulations.

[[4/]] See, e.g., Lipper v. SEC, 547 F.2d 171 (2d Cir. 1976); U.S. v. Ness, 652 F.2d 890 (9th Cir. 1981); Oyler v. Boles, 368 U.S. 448.

[[5/]] Respondent's president, Richard McSpadden, confirmed that the five floors of the then-uncompleted building were approximately 12 feet apart.

[[6/]] Michael Russell is the son of a part-owner of Skyline Crane Service, Inc., Charles H. Russell.

[[7/]] In the Citation it is alleged that the floor openings were observed on the second floor, east side.  The CO testified that the floor in question might be termed the third floor, depending upon whether the ground floor was included as a "floor."  Nevertheless, she saw the openings, as did Goodwin who accompanied her.  Testimony (cross-examination) was adduced ad nauseam concerning whether the second or third floor was the scene of the violation.   Supposedly the purpose of this was to confuse the CO.  It did not. Or to make it appear that she was uncertain.  It did not.

[[8/]] Again, there was confusion among the parties regarding whether the fire extinguishing equipment was missing from the first or second floor of the building under construction.  The disagreement here resulted as before from a difference of opinion concerning whether the uncompleted " ground floor" should be considered as the first floor.  This matters little inasmuch as Respondent's foreman (Goodwin) was with the CO when she made mention of the absence of the required fire extinguisher during the inspection tour.  He was certainly not confused about the location of the violation, and, if the CO's description of the location was inaccurate, Respondent cannot be said to have been misled.