BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION: A decision of Review Commission Judge Alan M. Wienman,

dated August 6, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

Having examined the record in its entirety, the Commission finds that the Judge properly


decided the case and adopts his decision which is attached hereto as Appendix A. Accordingly,

the Judge’s decision is hereby affirmed.


William S. McLaughlin

Executive Secretary

DATED: OCT 20, 1976

1 Chairman Barnako does not agree to this attachment.



BARNAKO, Chairman, concurring:

I concur in the disposition only insofar as the Judge’s order is affirmed. The party aggrieved by

the Judge’s decision, the Secretary of Labor, does not seek review of that decision. I therefore do

not reach the merits of the case, for there is neither party interest nor compelling public interest,

Abbott-Sommer, Inc., Docket No. 9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (Feb. 17,

1976); Singer Furniture Co., Docket No. 7134, BNA 3 OSHC 2079, CCH OSHD para. 20,481

(Mar. 5, 1976).




I dissent.

Administrative Law Judge Wienman vacated eight nonserious violations and proposed

penalties totaling $145 because the Secretary of Labor had not proved that any of the employees

of respondent were actually exposed to the cited hazards. My colleagues affirm his action.

Commissioner Moran concludes that the Judge’s decision is correct. This is in the face of

Commission precedent soundly rejecting the theory of actual exposure. Gilles & Cotting, Inc.,

CCH OSHD para. 20,448, 3 BNA OSHC 2002 (No. 504, 1976).

Chairman Barnako concurs in Commissioner Moran’s disposition finding neither party

interest nor compelling interest in the issue involved. I respectfully submit that the Chairman

also errs. The employer that prevailed before the Judge filled no brief. The Secretary in a letter to

the Commission dated November 4, 1974, noted that he did not petition for review by the

Commission and that the case is before us upon an order for review issued upon my own motion.

Nevertheless the Secretary did enclose an eleven-page brief filed in another case on the exposure

issue. In his view the facts did not warrant briefing. Although the Secretary’s presentation lacks

vigor, it is fair to say that he objects to the application of an actual exposure test.

Accordingly, I would remand the case for further proceedings consistent with Gilles &

Cotting, supra. See also Brennan v. O.S.H.R.C. and Underhill Constr. Corp., 513 F.2d 1032 (2d

Cir. 1975) as adopted by the Commission in Beatty Equipment Leasing, Inc., 1975–76 CCH

OSHD para. 20,694, 4 BNA OSHC 1211 (No. 3901, 1976), petition for review docketed, No.

76–2497, 9th Cir., July 7, 1976.











Office of the Solicitor,

U. S. Department of Labor,

Dallas, Texas, for the

Secretary of Labor

MR. JACK CRAIN, President,

Crain Electric, Inc.,

7667 East 46th Place,

Tulsa, Oklahoma, for the


Hearing held June 11, 1974, at Tulsa, Oklahoma,

Judge Alan M. Wienman presiding.




Alan M. Wienman, Judge, OSAHRC:

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of

1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued by the

complainant against respondent under the authority vested in complainant by section 9(a) of that

Act. The citation alleges on the basis of an inspection, November 14, 1973, of a workplace

located at Public Service Company Riverside Power Station, Jenks, Oklahoma, that the

respondent violated the Act by failing to comply with certain occupational safety and health

standards promulgated by the Secretary of Labor.

The citation issued December 13, 1973, alleged multiple nonserious violations of the Act

grouped under eight item headings, and the respondent elected to contest all parts of the citation.

The citation set forth the alleged violations in the following form:

Item number Standard, regulation or section of the Act Description of alleged violation

allegedly violated

1 29 CFR 1926.400(a) as adopted by 29 Live parts of electrical equipment

CFR 1910.12 were not guarded by approved

cabinets or other forms of

enclosures to prevent accidental

contact as required by National

Electrical Code, Article 110–17(a);

i.e., (a) light bulbs missing at the

following locations: west side of

boiler at 4th floor, southeast corner

of boiler on 3rd floor, 2nd floor

turbine area and 3 bulbs missing

on the 2nd floor turbine mezzanine

area (b) receptacle without cover

in the water treating area on the

2nd floor and (c) nonmetallic



Item number Standard, regulation or section of the Act Description of alleged violation

allegedly violated

sheathed cable cut exposing wiring

on the southeast corner of the third


2 29 CFR 1926.400(a) as adopted by 29 Where subject to physical damage,

CFR 1910.12 conductors were not protected by

conduit, pipe, guard strips, or other

means as required by National

Electrical Code, Article 336–6;

i.e., nonmetallic sheathed cable to

field office.

3 29 CFR 1926.400(a) as adopted by 29 Cables of one or more conductors

CFR 1910.12 for direct burial in the earth were

not of a type approved for the

purpose and use as required by

National Electrical Code, Article

310–6; i.e., cable at supply trailer.

4 29 CFR 1926.401(a)(1) as adopted by 29 The noncurrent-carrying metal

CFR 1910.12 parts of portable and/or plug

connected equipment were not

grounded; i.e., (a) 3 light guards on

south side of 2nd floor turbine area

(b) light guard in the 2nd floor

water treating area and (c) light

guard in 1st floor rest room.

5 29 CFR 1926.402(a)(8) as adopted by 29 Cables passing through work areas

CFR 1910.12 were not covered or elevated to

protect them from damage which

would create a hazard to

employees; i.e., (a) cable lying on



Item number Standard, regulation or section of the Act Description of alleged violation

allegedly violated

ground in traffic area on the north

side of the boiler (b) nonmetallic

sheathed cable run through mud

and water on south side of boiler

(c) nonmetallic sheathed cable

lying on ground across road near

cooling tower area.

6 29 CFR 1926.500(b)(1) as adopted by 29 Floor openings were not guarded

CFR 1910.12 by a standard railing and toeboards

or cover; i.e., (a) north side of 10th

floor boiler building (b) east side

of 10th floor (c) northwest corner

of 3rd floor.

7 29 CFR 1926.500(b)(8) as adopted by 29 Floor holes into which persons can

CFR 1910.12 accidentally walk were not

guarded by a standard railing and

toeboards or cover; i.e., (a) north

side of 10th floor (b) south side of

10th floor and (c) southwest corner

of 4th floor (d) west side of the 1st


8 29 CFR 1926.500(d)(1) as adopted by 29 Open-sided floor or platform 6 feet

CFR 1910.12 or more above the adjacent floor or

ground level was not guarded by a

standard railing or the equivalent;

i.e., 2nd floor turbine mezzanine


Respondent was also notified by letter dated December 13, 1973, that the complainant



proposed to assess penalties for the alleged violations in the following amounts:

Item No. Proposed


1 $35

2 None

3 None

4 $35

5 $25

6 $25

7 $25

8 None

The total proposed penalty for all alleged violations was $145.

After respondent contested the enforcement action, and Complaint and Answer were filed

by the purties, the case came on for hearing at Tulsa, Oklahoma, on June 11, 1974.


No jurisdictional questions are in issue, the parties having pleaded facts sufficient to

establish that the respondent is subject to the Act, and that the Commission has jurisdiction of the

parties and the subject matter. The chief issues for decision are whether the respondent violated

the safety regulations as alleged in the citation and complaint and, if so, what penalties, if any,

are appropriate.


OSHA Compliance Officer, John B. Miles, testified he inspected the Jenks Power Station

construction project November 14, 1973, subsequent to an employee complaint relating to

another subcontractor on the project (T. 7). The work site was a multi-story boiler and power

station south of Jenks, Oklahoma, where some fifteen contractors were conducting various

operations on the inspection date (T. 8). According to respondent’s president, Jack Crain, the

mammoth project was a $100,000,000 job with as many as 800 men working on it at the peak of

construction (T. 117).

Mr. Miles first conducted an opening conference with representatives of all contractors

present. A walk-around inspection of the entire site occupied three days (T. 44).



Mr. Miles observed and photographed various conditions he believed to be violations of

safety regulations as described in the citation issued to respondent. The first five citation items

related to the installation of temporary electrical equipment. The Compliance Officer believed

that respondent was the only contractor responsible for temporary wiring at the site (T. 14).

Citation Items 6, 7 and 8 related to hazardous floor openings and holes or unguarded floors in

areas where Miles believed respondent’s employees might be working. With respect to all

hazardous conditions, however, the Compliance Officer candidly testified that he observed none

of respondent’s employees in the immediate area of the hazard at the time of the inspection (T.

14, 19, 21, 25, 29, 39, 46, 56, 63, 99). Miles also testified that respondent had eight employees

on the site (T. 81), but he did not know the exact assignment of these employees (T. 97) or the

areas in which they were working (T. 99–100).

The Compliance Officer explained that it was extremely difficult to determine the

exposure of employees to hazardous conditions because the employees would vacate each floor

as the inspection party made its rounds (T. 101–102).

Miles testified that he assumed respondent’s employees necessarily visited certain areas

of the job site in order to service the temporary wiring, but the record contains no evidence that

any employee of respondent was in fact exposed to a designated noncompliant condition at any

given time.

In view of the absence of proof with respect to employee exposure it is unnecessary to

examine the evidence relative to the alleged violations in greater detail. The Review Commission

has clearly enunciated the rule that a respondent cannot be held liable for a violation of a safety

standard where none of its own employees are subject to the noncompliant condition. Secretary

of Labor vs. Hawkins Construction Co., OSAHRC Docket No. 949. In that decision the

Commission took pains to state that ‘. . . the intent of the Act is to place responsibility for

maintaining safe working conditions upon those employers who have endangered employees, not

upon those who may merely own or to some extent control the location of the place of

employment of others.’

More recently the Commission upheld vacation of a citation alleging violation by a

subcontractor because none of the subcontractor’s employees were exposed to the dangerous

conditions even though the subcontractor had created the hazard. Secretary of Labor v. Martin

Iron Works, Inc., OSAHRC Docket No. 606.



The cited decisions control, and the citation herein must also be vacated.


Having held a hearing and considered the entire record herein, it is concluded that the

substantial evidence is the record considered as a whole supports the following Findings of Fact:

1. Respondent, Crain Electric, Inc., at all times involved in this case had a workplace at

the Public Service Company Riverside Power Station, Jenks, Oklahoma, where it was engaged in

supplying certain electrical work in the construction of a power plant.

2. Respondent at all times mentioned herein was an employer in a business which affects

interstate commerce.

3. During a three day period commencing November 14, 1973, duly authorized

representatives of the Secretary of Labor conducted an occupational safety inspection of the

aforementioned workplace where they observed certain conditions which appeared to violate

safety regulations promulgated by the Secretary. However, in no instance was an employee of

the respondent exposed to the hazardous conditions created by the apparent violations.


1. At all times material hereto, respondent was an employer engaged in a business

affecting commerce within the meaning of section 3 (5) of the Act. The Occupational Safety and

Health Review Commission has jurisdiction of the parties and the subject matter herein.

2. On November 14, 1973, respondent was not in violation of the Act or any safety

regulation enumerated in the citation issued to respondent on December 13, 1973.


Based on the above Findings of Fact and Conclusions of how is is ORDERED that the

citation issued to respondent December 13, 1973, and the penalties thereon are hereby vacated.

Alan M. Wienman


Date: AUG 6, 1974