UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 76–2677
CHAPMAN CONSTRUCTION CO., INC.,
December 17, 1980
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
BY THE COMMISSION:
A decision of Administrative Law Judge Paul E. Dixon is before the Commission for review under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). In his decision, Judge Dixon concluded, among other things, that Respondent, Chapman Construction Co., Inc. (‘Chapman’), was not in violation of the grounding standard at 29 C.F.R. § 1926. 401(a)(1), but that Chapman had committed a serious violation when it failed to comply with the fall-protection standards at 29 C.F.R. § 1926.500(d)(1) and § 1926.501(b). The Secretary of Labor (‘the Secretary’) and Chapman filed petitions for discretionary review raising the following issues:
1. Whether the Administrative Law Judge erred in vacating the alleged repeated violation of 29 C.F.R. § 1926.401(a)(1) because the lack of continuity in the grounding circuit of Respondent’s Skil saw was a latent defect of which Respondent had no knowledge? [Secretary’s petition.]
2. Whether the Administrative Law Judge erred in affirming the alleged violations of 29 C.F.R. §§ 1926.500(d)(1) and 1926.501(b) as a combined serious violation? [Chapman’s petition.]
Chairman Cleary granted both petitions. We reverse the judge with respect to the alleged grounding violation and affirm the judge with respect to the combined serious violations.
The facts of the alleged repeated violation of the standard at 29 C.F.R. § 1926.401(a)(1) are not in dispute. Chapman was the carpentry contractor for the construction of a bank building in Lawton, Oklahoma. During an inspection of the worksite, a compliance officer observed a Black and Decker six-and-a-half-inch portable circular hand-held saw. The saw appeared to be in good condition. Record testimony indicates that it had been in use the day before the inspection. The compliance officer checked the saw with a continuity light tester, beginning the test at the third (ground) wire prong on the plug and then testing the case of the saw to determine whether the ground wire was effective. The tester showed that the saw was not grounded. An ungrounded electric saw can cause serious injuries, even death. At the hearing, Chapman stipulated that on August 16, 1974, it had received a citation for a violation of the same standard with respect to the same saw, that the citation had not been contested and the penalty had been paid.
Judge Dixon vacated the citation for an alleged violation of section 1926.401(a)(1). He found that the lack of grounding was a latent defect of which Chapman had no knowledge. He also concluded that to require employers to purchase testing equipment and train employees to use it would place an ‘onerous and unreasonable duty’ on employers.
On review, Chapman argues that knowledge is an element that must be proven by the Secretary and that the Secretary failed to carry his burden of proving that Chapman knew, or with reasonable diligence could have known, of the violative condition. It also maintains that reasonable diligence does not require the purchasing of testing equipment and the training of employees in its use.
Chapman presents another argument for the first time in its brief supporting its petition. Chapman points out that seven months after the inspection in this case, OSHA amended its standards concerning the grounding of portable electric equipment, including the standard at 29 C.F.R. § 1926.400(h). Section 1926.400(h), as amended, provides that employers must furnish ground-fault protection by either installing ground-fault circuit interrupters or instituting an assured equipment grounding conductor program. Chapman argues that since scheduled testing is a requirement added by the amendment and not specifically required by the standard before its amendment, an employer could not be required to make continuity tests until the amended standards became effective.
The Secretary argues in his brief on review that the judge erred by grafting onto the standard at issue an exception for latent defects. The Secretary does not interpret the cited standard to require continuity testing per se. Section 1926.401(a)(1) is a performance standard which only requires grounding and does not specifically require any measures, such as testing, to achieve that result. The Secretary also argues that to allow employees to be exposed to electrical hazards that could be avoided by a simple test using inexpensive equipment is contrary to the remedial purposes of the Act. Finally, the Secretary argues that ‘assuming arguendo that the Secretary’s interpretation of section 1926.401(a)(1) implicitly means that the standard contains a continuity testing requirement per se, the existence of the revised 29 C.F.R. § 1926.400(h) does not imply that the Secretary did not intend to require such testing under 29 C.F.R. § 1926.401(a)(1).’ He cites United States Steel Corp., 77 OSAHRC 192/B5, 5 BNA OSHC 2063, 1977–78 CCH OSHD ¶20, 614 (No. 15500, 1977), in support of his position.
Section 1926.401(a)(1) states in part that ‘The non-current carrying metal parts of portable . . . equipment shall be grounded.’ Inasmuch as it is undisputed that the saw in this case was not grounded, the standard was violated. Chapman maintains, however, that the record does not show that it knew, or with the exercise of reasonable diligence could have known of the lack of grounding and that, under the Commission decisions in Mountain States Telephone and Telegraph Co., 73 OSAHRC 1/A9, 1 BNA OSHC 1077, 1971–73 CCH OSHD ¶15,365 (No. 355, 1973); and Green Construction Co. and Massman Construction Co., A Joint Venture, 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976–77 CCH OSHD ¶ 21, 235 (No. 5356, 1976), this is fatal to the citation. We find, however, that with the exercise of reasonable diligence Chapman could have known of the lack of grounding. The compliance officer testified that he would always check portable tools of this sort with the continuity light, that most carpenters carry and use these testers because visual inspection would not disclose a lack of grounding, and that the testers cost about $1.79. In view of this, we find that the lack of grounding could have been discovered had Chapman exercised reasonable diligence.
Chapman’s argument that the Secretary’s amendment of 29 C.F.R. § 1926.400(h) signifies that section 1926.401(a)(1) was not intended to require continuity testing of electrical equipment is based on a misreading of the standard. Section 1926.401(a)(1) does not require continuity testing. Section 1926.401(a)(1) is a performance standard requiring only that equipment be grounded. Unlike the latest version of section 1926.400(h), it does not specify, nor does it require, that any particular measure (such as testing) be used to meet its performance criterion (grounding). Indeed, so long as its performance criterion is met, there can be no violation of section 1926.401(a)(1) even if the equipment is never tested. If, however, the performance criterion is not met—i.e., the equipment is not grounded—the question raised by the Commission precedents cited by Chapman is not whether the standard was violated, for the standard was violated when the equipment was not grounded. Instead, the question is whether knowledge under the Act has been shown. The answer to that question in turn depends upon actual knowledge of the violative condition or, if actual knowledge was not present, then upon whether the violative condition could have been known with the exercise of reasonable diligence. Our holding here that the lack of grounding of the saw could have been discovered with the exercise of reasonable diligence therefore does not rest upon section 1926.401(a)(1). Chapman’s argument that to find a violation here is to construe section 1926.401(a)(1) as a testing standard is therefore incorrect.
We now examine whether the violation was repeated. Chapman stipulated at the hearing that on August 16, 1974, it had been cited for a violation of the same standard with respect to the same saw. Chapman further stipulated that the prior citation had not been contested and that the penalty had been paid. The citation therefore became a Commission final order by operation of law before the inspection in this case. Section 10(a) of the Act, 29 U.S.C. § 659(a).
In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23, 294 (No. 16183, 1979), the Commission held that a violation is repeated under section 17(a) of the Act if at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. Under Potlatch the Secretary can establish substantial similarity by showing that the past and present violations arose from failures to comply with the same standard. Once the Secretary’s prima facie case has been established, the burden of rebutting that showing shifts to the employer. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1236, 1979 CCH OSHD ¶23,440 at p. 28,374 (No. 76–1480, 1979). Since Chapman has previously violated 29 C.F.R. § 1926.401(a)(1), we conclude that this violation is ‘repeated’.
This case was heard and the judge’s decision was issued before the Commission issued its decision in Potlatch. Under these circumstances, the Commission would normally afford Chapman an opportunity to present rebuttal evidence. Triple ‘A’ South, 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD ¶ 23, 555 (No. 15908, 1979). In the present case, however, the Secretary has presented a prima facie case of a repeated violation, the antecedent violation concerned a lack of grounding on the same saw, and the evidence of record indicates that Chapman could not rebut the Secretary’s case. See Belger Cartage Service, Inc., supra. Accordingly, we find a remand to be unnecessary. See J.L. Foti Const. Co., 80 OSAHRC ——, 8 BNA OSHC 1281, 1980 CCH OSHD ¶24,421 (No. 76–5049, 1980).
In item 1(a) of citation 3, the Secretary alleged that Chapman failed to comply with 29 C.F.R. § 1926.500(d)(1) in that guardrails were lacking at four locations: (a) the northwest stairwell landing platform from the first floor and the mezzanine, (b) the northwest stairwell landing above the second floor, (c) the east side of the northwest stairwell opening on the third floor, and (d) the east side of the northwest stairwell opening on the fourth floor. In item 1(b) of citation 3, the Secretary alleged that Chapman violated 29 C.F.R. § 1926.501(b) in that there were no stairrails on open-side stairs between the third and fourth floors of the northwest stairwell. The citation also stated ‘The combination of the two standards . . . allegedly violated constitute a serious violation.’ The Secretary proposed one $700 penalty for both items. Judge Dixon found that Chapman had violated the cited standards as alleged, affirmed the citation, and assessed a single penalty of $500.
Chapman does not dispute that the violations occurred, but argues only that they were not ‘serious’ within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j). It argues that inasmuch as the violations were alleged to be serious in combination and the judge made no finding that the violative conditions combined to create a serious condition, he should not have characterized the violations as serious. The Secretary maintains that ‘the record establishes each of the violations independently . . . and the substantial probability of death of serious physical harm resulting from either of the violations. . . .’ The Secretary therefore argues that the grouping of the violations could not and did not harm Chapman. We agree with the Secretary and consequently reject Chapman’s argument.
Accordingly, citation 4 for a violation of 29 C.F.R. § 1926.401(a)(1) is affirmed, the violation is found to be repeated, and a penalty of $140 is assessed. With respect to citation 3 (29 C.F.R. §§ 1926.500(d)(1) and 1926.501(b)), we affirm the judge’s finding that those violations were serious and assess a penalty of $500.
FOR THE COMMISSION:
RAY H. DARLING, JR.
DATED: DEC 17, 1980
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 76–2677
CHAPMAN CONSTRUCTION CO., INC.,
May 31, 1977
APPEARING ON BEHALF OF COMPLAINANT:
U. SIDNEY CORNELIUS, JR., ESQ., Office of the Solicitor, U. S. Department of Labor
555 Griffin Square Building, Dallas, Texas 75202
APPEARING ON BEHALF OF RESPONDENT:
MR. MIKE SENEY, PRESIDENT, Professional Safety, Inc., United Founders Tower
Suite 1518, Oklahoma City, Oklahoma 73112
Paul E. Dixon, Judge:
This is an action brought under section 10(c) of the Occupational Safety & Health Act of 1970, 29 USC 651, et seq. (hereinafter referred to as the Act), following an inspection on May 13 and 14, 1976, of respondent’s worksite at 500 City Center, Lawton, Oklahoma, where respondent was engaged in work as a prime contractor in carpentry.
Respondent was issued citations for alleged other-than-serious violations, for serious violations, and for repeated violation, along with notice of proposed penalties in the total amount of $1,540 on June 1, 1976.
On June 17, 1976, respondent filed with a representative of the Secretary a notification of intent to contest the citations, proposed penalties and abatement dates.
Thereafter, complainant filed his complaint on the 22nd day of July, 1976, with respondent filing its answer on the 28th day of July, 1976, bringing the case to issue.
Alleged other-than-serious violation of 29 CFR 1926.350(a)(1), item 1, states:
Valve protection caps were not in place on the following compressed gas cylinders: (a) the oxygen cylinder, and (b) the acetylene cylinder both of which were secured to the vertical, structural member at the southwest corner of the structure.
Alleged other-than-serious violation of 29 CFR 1926.350(j), item 2, states:
Oxygen cylinders were not separated from fuel-gas cylinders (acetylene) by 20 feet or by a noncombustible barrier at least 5 feet high, having a fire resistance rating of at least 1/2 hour as required in ANSI Z49.1; i.e., the oxygen and acetylene cylinders secured to the vertical, structural member at the southwest corner of the building.
Alleged other-than-serious violation of section 110–17(a) National Electrical Code, NFPA 70–1971 in accordance with 29 CFR 1926.400(a), item 3, states:
Electrical work and installations were not in accordance with pertinent provisions of the National Electrical Code, NFPA 70–1971; i.e., live parts of electrical equipment operating at 50 volts or more were not guarded in that there was no insulated disc cover on the electrical plug on the Skil saw, S/N E699947, located along the south side of the structure.
Alleged serious violation of 29 CFR 1926.28(a) and/or 29 CFR 1926.552(b)(2), item 1, states:
The employer failed to assure fall protection to its employees exposed to falls in excess of 6 feet in that:
(a) Employee was not wearing or utilizing appropriate personal protect equipment in an area where there was an exposure to hazardous conditions; i.e., the three employees observed on the American Tower material hoist loading platform at the roof level not utilizing a safety belt, lanyard, or life line while securing standard guard railing, and/or
(b) All entrances of the hoistway were not protected by substantial gates or bars to guard the full width of the landing entrance; i.e., the material hoist landing at the roof level.
Alleged serious violation of 29 CFR 1926.500(d)(1), item 1A, states:
The open-sided floor that was greater than 6 feet above the adjacent floor or ground level, did not have a standard railing or the equivalent on the open side; i.e., (a) the northwest stairwell landing platform between the first floor and the mezzanine, (b) The northwest stairwell landing above the second floor, (c) the inadequate railing on the east side of the northwest stairwell opening on the third floor, and (d) the inadequate railing on the east side of the northwest stairwell opening on the fourth floor.
Alleged serious violation of 29 CFR 1926.501(b), item 1B, states:
All stairways did not meet the requirements of 1926.500(e); i.e., no stairrail on opensided stairs between the third and fourth floors of the northwest stairwell.
Alleged repeated violation of 29 CFR 1926.401(a)(1), item 1, states:
The following cord and plug-connected electrical equipment was not grounded; i.e., the Black and Decker, 6 1/2’ portable circular saw, company #4 located on the south side of the building.
29 CFR 1926.350—Gas Welding and Cutting
(a) Transporting, moving and storing compressed gas cylinders
(1) Valve protection caps shall be in place and secured.
29 CFR 1926.350—Gas Welding and Cutting
(j) Additional rules
For additional details not covered in this subpart, applicable technical portions of American National Standards Institute Z49. 1–1967, Safety in Welding and Cutting, shall apply.
29 CFR 1926.400—General Requirements
(a) All electrical work, installation, and wire capacities shall be in accordance with the pertinent provisions of the National Electrical Code, NFPA 70–1971; ANSI C1–1971 (Rev. of C1–1968), unless otherwise provided by regulations of this 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 1926.552—Material Hoists, Personnel Hoists, and Elevators
(b) Material hoists
(2) All entrances of the hoistway shall be protected by substantial gates or bars which shall guard the full width of the landing entrance. All hoistway entrance bars and gates shall be painted with diagonal contrasting colors, such as black and yellow stripes.
29 CFR 1926.500—Guardrails, Handrails, and Covers
(d) Guarding of open-sided floors, platforms, and runways
(1) Every opensided 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)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.
(e) Stairway railings and guards
(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:
(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending;
(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side;
(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side;
(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side;
(v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width.
(2) Winding stairs shall be equipped with a handrail offset to prevent walking on all portions of the treads having width less than 6 inches.
(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, platform, runway, or ramp level. The top rail shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp. The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard. Minimum requirements 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 iof at least 2-inch by 4-inch stock; the intermediate rail shall be of at least 1-inch by 6-inch stock.
(ii) For pipe railings, posts and top and intermediate railings shall be at least 1 1/2 inches nominal diameter with posts spaced not more than 8 feet on centers.
(iii) For structural steel railings, posts and top and intermediate rails shall be of 2-inch by 2-inch by 3/8-inch angles or other metal shapes of equivalent bending strength, with posts spaced not more than 8 feet on centers.
(iv) The anchoring of posts and framing of members for railings of all types 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.
(v) Railings receiving heavy stresses from employees trucking or handling materials shall be provided additional strength by the use of heavier stock, closer spacing of posts, bracing, or by other means.
(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, platform, runway, or ramp level of approximately 42 inches;
(b) A strength to withstand at least the minimum requirement of 200 pounds top rail pressure with a minimum of deflection;
(c) Protection between top rail and floor, platform, runway, ramp, or stair treads, equivalent at least to that afforded by a standard intermediate rail;
(d) Elimination of overhang of rail ends unless such overhang does not constitute a hazard.
(2) A stair railing shall be of construction similar to a standard railing, but the vertical height shall be not more than 34 inches nor less than 30 inches from upper surface of top rail to surface of tread in line with face of riser at forward edge of tread.
(i) A standard toeboard shall be 4 inches minimum in vertical height from its top edge to the level of the floor, platform, runway, or ramp. It shall be securely fastened in place and have not more than 1/4-inch clearance above floor level. It may be made of any substantial material, either solid, or with openings not over 1 inch in greatest dimension.
(ii) Where material is piled to such height that a standard toeboard does not provide protection, paneling or screening from floor to intermediate rail or to top rail shall be provided.
(i) A standard handrail shall be of construction similar to a standard railing except that it is mounted on a wall or partition, and does not include an intermediate rail. It shall have a smooth surface along the top and both sides of the handrail. The handrail shall have an adequate handhold for any one grasping it to avoid falling. Ends of the handrail shall be constructed so as not to constitute a projection hazard.
(ii) The height of handrails shall be not more than 34 inches nor less than 30 inches from upper surface of handrail to surface of tread, in line with face of riser or to surface of ramp.
(iii) All handrails and railings shall be provided with a clearance of approximately 3 inches between the handrail or railing and any other object.
(5) Floor opening covers shall be of any material that meets the following strength requirements:
(i) Conduits, trenches, and manhole covers and their supports, when located in roadways, and vehicular aisles, shall be designed to carry a truck rear-axle load of at least 2 times the maximum intended load;
(ii) The floor opening cover shall be capable of supporting the maximum intended load and so installed as to prevent accidental displacement.
(6) Skylight openings that create a falling hazard shall be guarded with a standard railing, or covered in accordance with subparagraph (5)(ii) of this paragraph.
(7) Wall opening protection shall meet the following requirements:
(i) Barriers shall be of such construction and mounting that, when in place at the opening, the barrier is capable of withstanding a load of at least 200 pounds applied in any direction (except upward), with a minimum of deflection at any point on the top rail or corresponding member.
(ii) Screens shall be of such construction and mounting that they are capable of withstanding a load of at least 200 pounds applied horizontally at any point on the near side of the screen. They may be of solid construction, of grill work with openings not more than 8 inches long, or of slat work with openings not more than 4 inches wide with length unrestricted.’
29 CFR 1926.501—Stairways
(b) Stairway railings and guardrails shall meet the requirements of § 1926.500(e) and (f).
29 CFR 1926.401—Grounding and Bonding
(a) Portable and/or cord and plug-connected equipment
(1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.
It was stipulated that:
1. Jurisdiction of the proceeding was conferred upon the Occupational Safety & Health Review Commission by section 10(c) of the Act.
2. Respondent, Chapman Construction Co., Inc., is a corporation having a place of business and office at 432 F Street in Lawton, Oklahoma, where it is engaged in business as a construction contractor, and is, and at all times hereinafter mentioned was, an employer engaged in a business affecting commerce, who has employees within the meaning of section 3 (5) of the Act.
3. An inspection was conducted on the 13th and 14th days of May, 1976, by an authorized representative of the Department of Labor of a workplace under the operation and control of respondent located at 500 City Center in Lawton, Oklahoma; respondent was issued citations on June 1, 1976, pursuant to section 9(a) of the Act.
4. On August 1, 1974, the respondent was inspected by the Occupational Safety & Health Administration and subsequently received a citation on August 16, 1974, for a violation of 29 CFR 1926.401(a)(1), that being, that noncurrent carrying metal parts of portable and/or plug connected equipment were not grounded, i.e., a Black and Decker 6 1/2-inch portable saw #4.
5. Respondent did not contest the citation, paid the penalty, and it became a final order of the Commission.
Alleged Other-Than-Serious Violation—29 CFR 1926.350(a)(1)
Compliance Officer Bill Blackwell, during his inspection of a four-story bank building under construction at 500 City Center, Lawton, Oklahoma, where he was accompanied by respondent’s superintendent Byron Arthur, observed an acetylene and oxygen cylinder sitting side by side secured to a beam by heavy wire with the oxygen cylinder not having a valve protection cap.
The hazard perceived that should the cylinder be moved to a welding cart and dropped without valve protection, the cylinder would become a projectile.
Blackwell observed one or two of respondent’s employees in the area.
He observed a set of hoses and gaUges approximately 10 feet away, and was advised by Arthur that respondent was preparing to hook up the bottles.
In connection with alleged violation of 29 CFR 1926.350(j), wherein respondent was cited for not having the oxygen cylinder and the acetylene gas cylinder separated by 20 feet or a barrier wall, Blackwell agreed that they could not be hooked up if they were separated by 20 feet.
Blackwell was of the opinion that the cylinders were not being prepared to be hooked up, inasmuch as the cylinders are usually placed on a cart and moved to where the work is to be performed, whereas he found them storage strapped, secured to the I-beam, with no regulator or hoses attached and with a stack of lumber in between the cylinders and connections.
Respondent’s supervisor, Arthur, testified that he informed Blackwell that respondent was getting ready to hook up the oxygen and acetylene bottles for use.
The hoses and regulators are normally kept in the storage trailer and were brought in that morning to be used.
Alleged Other-Than-Serious Violation—29 CFR 1926.350(j)
The citation was issued on the basis of the acetylene and oxygen cylinders not being separated by a 20-foot distance or barrier wall, with the hazard perceived that in the event of a fire causing the cylinders to become over-heated, there were combustibles around such as wood and other types of material.
Blackwell felt that the hazard was minimal.
Alleged Other-Than-Serious Violation—29 CFR 1926.400(a)
Within 5 feet of the cylinders, Blackwell observed a Skil saw lying on the concrete floor and checked its plug connecting equipment, and while checking the third wire ground on the plug he noticed that the plug did not have an insulating washer to cover the two terminals.
He felt that the hazard was of the possibility of arcing, but that the violation was minimal. He obtained the name of the carpenter and learned that he had used the Skil saw the day before.
Alleged Repeat Violation—29 CFR 1926.401(a)(1)
Blackwell utilized a continuity light to check the third wire prong by testing back to the case of the equipment to see if the third wire ground was effective. He found that regarding the Black and Decker 6 1/2-inch portable circular handheld saw, company #4, the third wire ground was not continuous and effective.
The hazard presented was that of shock, and the effect upon an employee would be variable depending upon his state of health, with the extreme possibility of an employee being fatally injured.
Blackwell enumerated several sources of problems, such as the plug itself being defective or a defect in the cord from the plug leading to the equipment, which would require either replacement of the plug or the whole cord.
Blackwell felt that the lack of an insulation disc around the poles could occasion an arcing which would result in a painful burn but little damage, and he did not feel that an employee would even lose time.
The cord to the Skil saw looked in good shape to Blackwell and had a three-prong connection.
There was no way to visually determine that the continuity was not intact without using test lights, which run approximately $1.79, and which Blackwell felt most contractors use to test their equipment.
Arthur testified that he did not see any danger in plugging in a plug without an insulating disc although it could short across, but the employee would have to have a hold of the bare part of the plug in order to sustain injury.
In his 21 years in construction, he had never seen an injury for the lack of an insulation disc on the end of a plug.
Alleged Serious Violation—29 CFR 1926.23(a) And/Or 29 CFR 1926.552(b)(2)
As Blackwell and Compliance Officer Terrell were approaching the jobsite about 2:00 p.m. on May 13, 1976, Blackwell observed an employee at the roof level on the work platform or unloading platform for the material hoist who were joined by two other employees at the edge of the platform.
He perceived a hazard of the lack of guardrails and bars on the loading platform and on the ramp leading to the unloading ramp as a serious hazard, in that a man could fall approximately 50–60 feet from the roof onto either building debris or striking cross members of the hoist itself which was angle-iron, which would in Blackwell’s judgment result in a sure fatality.
Blackwell identified Exhibit C–1 which depicted the double hoist consisting of two material hoist platforms.
Blackwell identified complainant’s Exhibit C–2 as depicting an employee at roof level standing on the unloading platform without any type of personal protective equipment.
Blackwell noted that the second level of the hoistway had an unloading platform without standard rails on the open sides of the platform, which he defined as a toprail and a midrail.
With reference to 29 CFR 1926.552(b)(2), Blackwell noted that on Exhibit C–1 there was the lack of a hoistway guardbar or gate.
Blackwell demonstrated that on Exhibit C–2, where the employee was on the unloading platform for the material hoist, the hoist did not have a gate or guardbar.
Blackwell identified Exhibit C–3 as depicting the lack of a gate or guardbar at the hoistway entrance at the third floor level.
Blackwell observed respondent’s employees exposed to the conditions described, and felt that the method of abatement would be the installation of guardbars or gates at each unloading entrance to the material hoist.
As to personal protection, he felt that a method of abatement would be for the employee to use a safety belt and life line and tie off to some structure that would support 5,400 pounds.
Blackwell was not sure whether tying off to the structure of the hoist would do, but felt that there were items on the roof that the employee could possibly have tied off to.
Blackwell noted that there was a 6-foot parapet around the roof.
Blackwell was of the opinion that a life line could be attached to the roof structure with a 6-foot lanyard, and that the life line would have to be attached to a structure that would withstand a 5,400-pound thrust, although he did not make a determination if there was such a structure on the roof and really did not know if an employee could have complied with these regulations by hooking up a life line and lanyard. (T. 48)
Arthur advised Blackwell that the employee depicted in Exhibit C–2 was making adjustments or tightening up the east guardrail on the open side of the unloading platform.
The loading platform had a guardrail approximately 42 inches in height, but it was not a standard guardrail.
Blackwell made no determination as to whether it would withstand 200 pounds of pressure.
Blackwell noted that you could see the guardrail on the east side of the loading platform and that it was roughly the same height as the guardrail on the west platform where the employee was engaged in his work.
The deficiency was the absence of a midrail in Blackwell’s opinion, with the attendant hazard of falling. (T. 49)
Referring to Exhibit C–1, Blackwell indicated a mason’s platform below the entrance platform to the hoist. (T. 51)
In Blackwell’s opinion, the edges of the two platforms were perpendicular to each other, and if a man fell from where he was working at the hoist entrance platform at the northwest edge the employee would fall through the cross-bracing and over the side. (T. 54)
Alleged Serious Violation—29 CFR 1926.500(d)(1) and 29 CFR 1926.501(b)
Referring to alleged serious violation of 29 CFR 1926.500(d)(1), Blackwell noted that the northwest stairwell landing platform between the first floor and the mezzanine was unguarded, along with the northwest stairwell landing above the second floor.
The fall by an employee would be greater than 6 feet to the adjacent floor or ground level.
Blackwell noted under item 1A of citation 3 that there was no standard railing on the open side of the landing platform between the mezzanine and the first floor, and item 1B that there was no standard rail on the northwest stairwell landing above the second floor and inadequate railings on the east side of the stairwell on the third floor and inadequate railings on the east side of the stairwell opening on the fourth floor.
Blackwell, having shaken the guardrail on the fourth floor, found it to be flimsy. (T. 57)
The stairway was constructed so there was a solid wall to one side of the stairway.
While Blackwell did not measure the stairways, he testified that they were 80 inches wide.
The landing platform between the first floor and mezzanine was approximately 12–14 feet from the mezzanine, although Blackwell made no measurement. (T. 61)
From the second landing above the mezzanine, a fall would encompass what Blackwell estimated to be 8–10 feet, in addition to another 10–14 feet to the mezzanine floor.
There was a flooring above the landing approximately four-head high or 4 1/2 feet.
Blackwell observed no employees doing any work on the landings. (T. 62)
Arthur established that the distance between landings was 6 feet, and as to the employee on the fourth floor testified that the employee was installing a protective handrail.
On the stairwell the floor above came down to 44 inches above the landing where the upper floor sets on a beam.
Arthur was of the opinion that if someone would fall off the stairwell it would depend on how he fell, but he felt that the worst thing that could occur would be an ankle sprain.
Arthur conceded that if an employee would fall from the top of the stairway, it would be conceivable to fall more than 6 feet.
As the stairs cross in meeting the landing, the open position between the stairs that was unguarded ranges from 4 inches to 3 1/2 feet midway, a space large enough for an employee to fall through. (T. 77)
Referring to other-than-serious violations of 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(j); i.e. missing valve cap and oxygen and acetylene cylinders improperly stored, we are confronted with the conflict between the opinion evidence of the compliance officer that the tanks in question were stored versus that of the job foreman, who testified that the cylinders were being in the process of preparation for use.
We feel that the opinion evidence of the compliance officer is outweighed by the more credible evidence of the job foreman who had superior knowledge as to what was to be done, which is further supported by the observance of the valves and hoses being in close proximity to the cylinders, which equipment, according to Arthur, would ordinarily be locked up in the tool van if the equipment was not to be used.
It is felt, therefore, that this evidence is more supportive of Arthur’s version, and that the two other-than-serious violations should be vacated.
FINDINGS OF FACT
1. Respondent’s oxygen cylinder did not have a valve protection cap.
2. Respondent’s oxygen cylinder was sitting side-by-side secured to a beam by heavy wire next to an acetylene cylinder.
3. Gauges and hoses were in the near vicinity.
4. The oxygen and acetylene cylinders were being prepared for use.
CONCLUSION OF LAW
Respondent was not in other-than-serious violation of 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(j).
Regarding other-than-serious violation of 29 CFR 1926.400(a), there is no dispute that respondent’s Skil saw did not have an insulating disc on its plug.
However, both the compliance officer and respondent testified that the potential for injury was exceedingly minimal, in that an employee would almost have to take his hand from the insulated portion of the plug and touch the prongs. Arcing was discussed, but the compliance officer felt that any potential for harm would consist perhaps of a burn and would cause no lost time.
FINDINGS OF FACT
1. Respondent’s Skil saw, SN E699947, did not have an insulation disc at its plug.
2. The probability for physical harm was minimal.
CONCLUSION OF LAW
Respondent was in violation of 29 CFR 1926.400(a).
Respondent was further charged under 29 CFR 1926.401(a)(1) with a repeat violation for failure to have complete continuity in the ground phase of the three-pronged plug.
The plug and cord appeared normal and in good condition to the compliance officer, and it was only by use of an electrical testing device that he determined that there was lack of continuity.
Obviously, this was a latent defect of which respondent had no knowledge, and it is not felt that in a reading of the standard that employers would have to purchase the electrical test equipment and train their employees to run continuity checks. It is felt that this would place an onerous and unreasonable duty to force employers to seek out latent defects.
FINDINGS OF FACT
1. The ground phase of respondent’s Skil saw lacked continuity.
2. Such defect was not apparent, nor was respondent aware of the defect which was latent.
CONCLUSION OF LAW
So much of repeat violation of 29 CFR 1926.401(a)(1), as pertains to the ground phase of respondent’s Skil saw, is vacated.
Regarding alleged serious violation of 29 CFR 1926.28(a) and/or 29 CFR 1926.552(b)(2), one to three employees were observed utilizing a ramp leading to a material hoist at the roof level without benefit of utilizing safety belt, lanyard or life line while performing work on a railing.
Respondent argues that it would have to violate 29 CFR 1926.104 in order to use safety belts.
This argument cannot be accepted, and has been specifically rejected in Secretary v. Frank Briscoe Co., Inc., 76 OSAHRC 125/D7 (Docket 12136), BNA 4 OSHC 1706 (1976), CCH OSHD ¶19,949, 21,191 (1976).
While the compliance officer did not testify with an absolute degree of certainty as to a tie-off point on the roof, the hoist structure which carries the material to the roof was secure enough to support the weight of a man and afforded a feasible solution to the tying-off problem.
Therefore, complainant has carried his burden of proof as to serious violation of 29 CFR 1926.28(a).
FINDINGS OF FACT
1. Respondent had employees working on a material platform leading from the fourth floor level to the hoist; said employees were not wearing or utilizing appropriate personal protective equipment.
2. There was substantial probability that should the employees fall their fall would be either into the hoistway or to the ground below and would result in serious bodily harm or death.
CONCLUSION OF LAW
Respondent was in serious violation of 29 CFR 1926.28(a).
Violation of 29 CFR 1926.552(b)(2) was likewise established, in that the landing entrance of the hoistway was not protected by substantial gates or bars at the roof level and at the third floor level.
Respondent had employees working at the roof level, and there was presented the hazard of an employee falling through the hoistway from the platform leading from the roof to the hoistway, which fall would be a distance of approximately 50–60 feet and which would be productive of serious bodily harm or death.
FINDINGS OF FACT
1. The material hoistway did not have substantial gates or bars at its entrance at the roof level and at the third floor level.
2. Respondent’s employees were exposed and had access to the hazard of the unguarded hoistway entrance.
3. A fall through the hoistway would result in serious physical harm or death.
CONCLUSION OF LAW
Respondent was in serious violation of 29 CFR 1926.552(b)(2).
Respondent is of small size and it cannot be said that its safety program was a model of perfection, although respondent has a history of just one prior violation in its operations. However, the prime factor of penalty consideration under section 19(j) being that of gravity, it must be found that the gravity of the violation of 29 CFR 1926.28(a) and 29 CFR 1926.552(b)(2) was high moderate and there was strong probability that in the event of a mishap respondent’s employee would receive serious bodily harm if not death. It is felt that under the circumstances a penalty of $500 is appropriate.
Regarding alleged serious violations of 29 CFR 1926.500(d)(1) and 29 CFR 1926.501(b), it was uncontroverted that the northwest stairwell landing platform between the first floor and the mezzanine was unguarded. A fall from this level would result in an employee traveling some 12–14 feet to the ground floor, and should he fall from the upper level of the steps there would be an additional distance of 6 feet involved.
It was further established that there was no standard rail on the northwest stairwell landing above the second floor, inadequate railings on the east side of the stairwell on the third floor and inadequate guardrails on the east side of the stairwell opening on the fourth floor.
In addition, as the ascending and descending stairways intersected at midpoint, there was an unprotected opening of 3 1/2 feet, large enough for an employee to fall through to the next level.
Such a fall would be productive of serious bodily harm or conceivably, death.
The complainant has met and carried his burden of proof as to alleged violations of 29 CFR 1926.500(d)(1) and 29 CFR 1926.501(b).
FINDINGS OF FACT
1. The mezzanine landing, which was some 10–12 feet from ground level, was unguarded.
2. The northwest stairwell landing above the second floor was unguarded.
3. There was an inadequate makeshift railing on the east side of the northwest stairwell opening on the third floor.
4. There was an inadequate makeshift railing on the east side of the northwest stairwell opening on the fourth floor.
5. There was no stairrail on opensided stairs between the third and fourth floors of the northwest stairwell.
6. Employees utilize said stairwell and landings to go to and from their work and had both access and exposure to the described hazard.
CONCLUSION OF LAW
Respondent was in serious violation of 29 CFR 1926.500(d)(1) and 29 CFR 1926.501(b).
Considering the previous discussion on penalty which will not be repeated, the same rationale applies, and it is felt that a penalty of $500.00 is appropriate.
DECISION AND ORDER
1. Citation 1 for other-than-serious violation of 29 CFR 1926.350(a)(1), item 1, and 29 CFR 1926.350(j), item 2, is vacated.
2. Citation 1 for other-than-serious violation of 29 CFR 1926.400(a), item 3, is affirmed. No penalty is assessed.
3. Citation 2 for serious violation of 29 CFR 1926.28(a) and 29 CFR 1926.552(b)(2), item 1, is affirmed. A penalty of $500 is assessed.
4. Citation 3 for serious violation of 29 CFR 1926.500(d)(1), item 1A, and 29 CFR 1926.501(b), item 1B, is affirmed. A penalty of $500 is assessed.
5. Citation 4 for repeat violation of 29 CFR 1926.401(a)(1), item 1, is vacated.
Paul E. Dixon
DATE: May 31, 1977
 29 U.S.C. § 661(i).
 Section 1926.401(a)(1) states:
The non-current-carrying metal parts of portable and/or plug-connected equipment shall be grounded.
 Section 1926.500(d)(1) states in part:
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 . . . on all open sides . . . [t]he railing shall be provided with a standard toe-board . . ..
 Section 1926.501(b) states:
Stairwell railings and guardrails shall meet the requirements of § 1926.500(e) and (f).
 The amendment was proposed on April 7, 1975, 41 Fed. Reg. 55686 (1975), was adopted on December 21, 1976, and became effective on February 22, 1977. 41 Fed. Reg. 55703, 55704 (1977).
 29 U.S.C. § 666(a).
 Commissioner Barnako would not presume that a violation of the same standard fulfills the substantial similarity requirement and shifts the burden to the employer to prove otherwise. Potlatch Corp., supra (concurring and dissenting opinion). Instead, he would look to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its different workplaces the condition alleged to constitute the repeated violation. When such notice is not apparent from the face of the citation, he would require the Secretary to prove substantial similarity. See also Automatic Sprinkler Corp., 79 OSAHRC 102/B2, 7 BNA OSHC 1957, 1979 CCH OSHD ¶24,077 (No. 76–5271, 1979) (concurring and dissenting opinion). Commissioner Barnako finds substantial similarity between the present and antecedent violations because both concerned a lack of grounding on the same saw and noncompliance with the same standard.
In Commissioner Barnako’s view, an employer should be able to defend against an alleged repeated violation by demonstrating that it made good faith efforts after the entry of a final order to prevent the recurrence of a substantially similar violation. Since this case was tried prior to the issuance of Potlatch, supra, Chapman was not on notice as to the good faith efforts defense and such defense has not been established on the record as it currently exists. See Triple ‘A’ South, Inc., 79 OSAHRC 34/D6, 7 BNA OSHC 1352, 1979 CCH OSHD ¶ 23,555 (No. 15908, 1979). Therefore, he would enter a conditional order, affirming the citation as repeated, but would afford Chapman 10 days from the issuance of this decision to move that the case be reopened for the taking of additional evidence as to the steps Chapman took after the first citation became a final order to prevent occurrence of a substantially similar violation.
 Chapman argues that the evidence is insufficient to show that the violative conditions were serious because there is insufficient evidence to show that there was a ‘substantial probability that death or serious physical harm could result’ from the violative conditions. The judge relied upon the compliance officer’s testimony that falls of 10 feet from the unguarded or inadequately guarded locations ‘could’ cause ‘broken arms or [a broken] back’ and could be fatal. The judge also accepted the compliance officer’s view of the fall distances. Although the compliance officer did not expressly testify that the injuries he described were ‘substantially probable’, the totality of his testimony supports that conclusion.
 Section 17(j) of the Act, 29 U.S.C. § 666(i), states:
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.
 Chapman does not object on review to the amount of the penalty ($500) assessed by the judge for the violations of sections 1926.500(d)(1) and 1926.501(b).