J.K. BUTLER BUILDERS, INC.

OSHRC Docket No. 12354

Occupational Safety and Health Review Commission

February 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

F. Peter Herff, II, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The issue before us is whether the Administrative Law Judge erred in vacating a citation for a serious violation of 29 CFR 1926.700(b)(1) n1 for an alleged failure to provide safety belts or equivalent devices for employees placing and tying reinforcing rods more than six feet above the ground. Upon review of the record, we disagree with the Judge's conclusion that the employee conduct was an unpreventable isolated occurrence, and therefore reverse his action.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The section reads as follows:

29 CFR 1926.700 General provisions.

* * *

(b) Reinforcing steel (1) Employees working more than 6 feet above any adjacent working surfaces, placing and tying reinforcing steel in walls, piers, columns, etc., shall be provided with a safety belt, or equivalent device, in accordance with subpart E of this part.

- - - - - - - - - - - - - - [*2] - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent was the general contractor for the construction of a building addition in San Antonio, Texas in early 1975. On January 22, 1975, an Occupational Safety and Health Administration compliance officer, while driving by the jobsite, by chance observed employees of respondent working on an unguarded I-beam 26 feet above ground. An inspection immediately followed resulting in the issuance of the citation before us.

On January 22, 1975, the day of the inspection, respondent's employees were tying rebar for the lower beam of the second story where scaffolding or other personal protective equipment was not necessary. The job foreman, realizing the need for scaffolding before the workmen could safely proceed to a higher level, contacted the employer for instructions. The employer told the foreman to secure immediately the needed scaffolding. On leaving the jobsite to obtain the scaffolding, the foreman instructed the employees to continue working in his absence. He left no instructions not to proceed to the upper unguarded I-beam. Upon completing their work on the lower level, the workmen proceeded to the upper unguarded [*3] I-beam. Respondent's supervisory officials, however, had frequently warned its employees to "avoid unsafe areas" and on at least one previous occasion, the foreman had told unspecified employees to leave another unguarded beam.

The Secretary of Labor argues that the activity of the employees on the upper unguarded I-beam was reasonably foreseeable because the employer's foreman could, or should, have recognized the possibility that during his absence the employees would continue tying off rebar, even on the upper beam.

On the other hand, the employer points to the fact that the foreman had told the employees involved not to work in any "unsafe area," and that this included work on beams above the second floor, without installation of scaffolding equipment with safety rails. The employer also argues that it discharged the employees in question after this incident. n2 From these circumstances, the employer asserts that it has done everything possible to avoid the cited hazard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Respondent would have us conclude that these employees were discharged for having violated safety rules. The record contradicts this assertion. The only evidence of record on this issue is the testimony of respondent's president that the employees

". . . were transferred to another job. And I believe either one of them quit or was laid off, and the other man, we didn't have anything for him to do. He was more of a steel man than a carpenter, so we laid him off." (Tr-89).

Thus, we also disagree with the Judge's use of this testimony to support his finding that the employees were working contrary to instructions. (J.D.-8 n.5).

[*4]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

This case turns on the application of the so-called "isolated occurrence" principle that is a corollary to the rule that the employer has a duty to accomplish what is preventable in the way of job safety and health. See National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973).

The existence of an isolated occurrence is something to be raised as an affirmative defense requiring that the employer prove that the actions constituting noncompliance with the standard were: (a) unknown to the employer and (b) contrary to both the employer's instructions and a company work rule that the company had uniformly enforced. Weatherhead Co., No. 8862 BNA 4 OSHC 1296, CCH 1976-77 OSHD para. 20,784 (1976), and cases cited therein. Whether anu employer has met its duty to comply by the issuance of a work rule depends on whether the employees received adequate training and instructions designed to prevent the violation. Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1017-18 (7th Cir. 1975), Utilities Line Construction Co., No. 4105, 4 OSHC 1681, 1684, CCH 1976-77 OSHD para. [*5] 21,098 at p. 25,400 (1976).

Respondent's warning to employees to avoid "unsafe areas" strikes us as too general to be an effective work rule. See Ames Crane & Rental Service, Inc. v. Dunlop, 532 F.2d 123 (8th Cir. 1976); Brennan v. Butler Lime & Cement Co., supra; and Utilities Line Constr. Co., supra. A review of applicable case law leads us to define a work rule as an employer directive that requires or proscribes certain conduct, and that is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood. Respondent's statements to the effect that employees should be careful are by contrast mere hortatory self-serving statements. This conclusion is reinforced by considering the warning in light of the ambiguous and apparently conflicting direction by the foreman to the employees to continue working in his absence. We also consider it significant that the employees involved were not engaged in a frolic of their own but rather were literally complying with the foreman's instruction. We therefore hold that the affirmative defense of an isolated occurrence has not been proved and that the violation [*6] was preventable.

Having reversed the Judge's action concerning the citation we now exercise our discretion to consider the matter of a penalty assessment rather than remanding it to the Administrative Law Judge. See Accu-Namics, Inc. v. O.S.H.R.C., 515 F.2d 828 (5th Cir. 1975). We first address the question of whether the violation was "serious" within the meaning of section 17(k) of the Act. We conclude that it was "serious." There was an obvious hazard of serious physical harm or death that could result from a fall of about 26 feet and the employer either knew or should have known of the hazard. Its foreman on a previous occasion had admonished employees for similar conduct of working on an unguarded I-beam. We are nevertheless impressed by the substantial good faith n3 of the employer, and reduce the penalty proposed by the Secretary from $500 to $300.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 See 29 U.S.C. 666(i).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, it is ORDERED that the decision of the Administrative Law Judge vacating the citation be set aside and the [*7] citation affirmed. A penalty of $300 is assessed.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, Concurring:

I concur. Clearly, the instructions given to employees in this case were inadequate. The foreman's instructions to employees was to continue work even though the foreman knew fall protection equipment was required. It was left to the employees to determine at their peril whether the work was unsafe.

I do not join in my colleague's resurrection of the so called "isolated occurrence" defense. The issue instead is one of preventability as it has evolved in our decisions and those made by various reviewing courts. See Green Constr. Co. and Massman Constr. Co., No. 5356, BNA 4 OSHC 1808, CCH OSHD para. 21,235 (1976) (Barnako, Chairman, Concurring); and the cases cited therein. Similarly, it is unnecessary to establish a comprehensive definition of a "work rule." The issue is not whether an employer's instructions conformed to a specific definition of a "work rule" but rather it is whether the employer's overall conduct was such that a violation could not have been prevented.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Kennedy vacated the citation charging respondent with failing to comply [*8] with the occupational safety standard codified at 29 C.F.R. 1926.700(b)(1) on the ground that the hazardous conduct was a result of an isolated incident of employee misconduct, which was contrary to respondent's instructions. Although I agree with Chairman Barnako that the issue is best framed in terms of "preventability" and "employer knowledge" rather than "siolated occurrence," n4 I nevertheless agree with the Judge's vacation of the citation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 See my discussion of this issue in Secretary v. Ocean Electric Corp., OSAHRC Docket No. 5811, November 21, 1975, where I pointed out that the use of the term "siolated occurrence" is used as a mere pretext for shifting the burden of proof to the respondent rather than placing it on complainant where it belongs.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As the lead opinion indicates, respondent's foreman recognized that it would be necessary to utilize safety equipment in working on the upper beam. He advised respondent's building superintendent of this fact in a telephone conversation. During the conversation, [*9] the building superintendent authorized the foreman to procure safety railings for scaffolding that was located at the workside. n5 More importantly, respondent's president had previously told the foreman not to work on the beams unless scaffolding was used. There was no doubt in the foreman's mind that scaffolding was to be erected before proceeding with the work on the upper level. Unfortunately, the record is silent as to why the foreman did not give specific instructions to the employees to this effect before he left to obtain the railings. However, there is evidence that the foreman had previously been reliable in passing on safety information to the employees under his supervision. In this regard, respondent's building superintendent testified as follows:

"Q. And you know he [the foreman] passes you word on?

It's proven such in the past. Is that correct?

A. Yes."

Furthermore, the superintendent testified quite positively that the employees had prior knowledge of a prohibition against work on the beams. He stated that:

"They have been told not to go up on those beams. In fact, I believe a day or two before, Mr. Butler had told some to get down, that that wasn't safe." [*10]

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 It is undisputed that scaffolding qualifies as an "equivalent device" under 29 C.F.R. 1926.700(b)(1).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In order to establish a violation of the Act, complainant must prove that the respondent had actual or constructive knowledge of the existence of the violation. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975). Under the above-described circumstances, the requisite knowledge has clearly not been established unless knowledge is imputed to respondent on the basis of the foreman's failure to provide more specific instructions to the employees before departing from the worksite to secure the railings.

In somewhat similar circumstances, the imputation theory was rejected in Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976). The Commission has also found it appropriate to reject that theory. See Secretary v. Engineers Construction, OSAHRC Docket No. 3551, September 29, 1975, and the cases cited therein. Those decisions correctly [*11] interpret the law and apply it properly to the facts therein. Moreover, they require rejection of the imputation theory in this case.

The foreman recognized the hazard involved in working at the upper level and obtained respondent's permission to procure the required equipment. In view of the foreman's past reliability in keeping his subordinates fully advised on safety matters, respondent could not be expected to foresee that, after initiating appropriate corrective action, he would leave the worksite without specifically instructing the employees not to work on the upper level until the scaffolding was in place. Why he did this is unexplained. Maybe he felt that the employees already knew that this shouldn't be done. The testimony of the building superintendent tends to justify such a belief. Regardless, however, there was no reason for respondent to expect that the foreman would not specifically warn the employees not to work on the uppet level during his obsence, and the foreman's failure to do so should not be imputed to respondent.

Since this decision does not cover all of the matters covered in Judge Kennedy's decision, his decision is attached hereto as Appendix A. [*12]

Appendix A

DECISION AND ORDER

William E. Everheart, for the Secretary

F. Peter Herff II, for the Respondent

HAROLD A. KENNEDY, Judge: On the morning of January 22, 1975, Daniel J. Stahly, a United States Department of Labor Compliance Officer, was driving on a San Antonio street when he noticed a workman "inching his way along an I-beam on a building under construction" (Tr. 20). n1 He stopped his car and, after taking a picture of the scene, made an inspection. As a result of the inspection, the Secretary of Labor on January 23, 1975, issued two citations charging violation of the Occupational Safety and Health Act of 1970. The first citation, designated Citation No. 1 Non-Serious, contains four "items" or charges alleging Respondent violated the Act by failing to comply with four occupational safety and health standards, n2 as follows:

Item

No.

Standard Cited

Description

1

29 CFR 1926.50(f)

Failure to conspicuously post telephone

numbers of physicians and hospitals

at the job site.

2

29 CFR 1926.450(a)

Failure to provide employees with

(1)

proper means of access from one work

level to another:

a. There was no ladder on the job

site that could reach to the second

floor, nor had stairs been installed.

3

29 CFR 1926.500(b)

Failure to provide a standard railing

(1)

and toeboard or cover to guard floor

opening:

a. The elevator shaft on the

second floor was neither covered nor

guarded with a guardrail, exposing

workers to a 14 foot fall.

b. The stairway shaft opening on

the second floor was neither covered

nor guarded with a guardrail, exposing

workers to a 14 foot fall.

4

29 CFR 1926.500(d)

Failure to provide standard railings

(1)

and toeboards or the equivalent on

open-sided floors more than six feet

above ground level at the following

location.

a. The second floor did not have

a guardrail on the north and east sides.

[*13]

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Mr. J. K. Butler, President of Respondent, described the building under construction as a "small two-story addition" to the "brown Dental Supply" building (Tr. 14).

n2 Section 5(a)(2) provides that each covered employer "shall comply with occupational safety and health standards promulgated under this Act."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The cited standards provide as follows:

1926.50 Medical services and first aid. * * *

(f) The telephone numbers of the physicians, hospitals, or ambulances shall be conspicuously posted.

1926.450 Ladders

(a) General requirements. (1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

1926.500 Guardrails, handrails, and covers.

* * *

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on [*14] all exposed sides, except at entrances to stairways.

* * *

(d) Guarding of open-sided floors, platforms, and ranways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) 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 failing materials could create a hazard.

The other citation, designated Citation No. 2 Serious, alleges noncompliance with 29 CFR 1926.700(b)(1) in the following language:

Failure to provide safety belt or equivalent device for employees working more than six (6) feet above any adjacent working surfaces while placing and tying reinforcing steel in walls piers, columns, etc.:

a. Tying rebar to roof level I beam 26 feet above ground.

Summary: A workman was sitting on the I beam at the southeast corner of the building and while exposed to a 26 foot fall was not tied off or otherwise protected. A fall from [*15] this height to the paved surface below could reasonably be expected to cause death or serious physical injury.

The cited standard provides:

1926.700 General provisions. * * *

(b) Reinforcing steel. (1) Employees working more than 6 feet above any adjacent working surfaces, placing and tying reinforcing steel in walls, piers, columns, etc., shall be provided with a safety belt, or equivalent device, in accordance with Subpart E of this part.

The citations prescribed abatement of the alleged violations "one day upon receipt of this citation." The Secretary proposed penalties as follows:

Non-Serious Item No. 1

$ 0

Non-Serious Item No. 2

35.00

Non-Serious Item No. 3

40.00

Non-Serious Item No. 4

35.00

Citation No. 2 Serious

500.00

$610.00

Respondent timely contested the citations and proposed penalties. After pleadings were filed, the case came on for hearing in San Antonio, Texas, on April 23, 1975. The Secretary called J. K. Butler, President of Respondent, OSHA Compliance Officer Stahly, and the San Antonio OSHA Area Director, Herbert Kurtz. Respondent recalled Mr. Butler to testify for it, along with three other officials: Superintendent Billie Joe [*16] Walden, Foreman Roy Patteson, and Vice President Fred C. Harris. Respondent's employees are not organized, and none appeared to participate in the hearing.

Jurisdiction

The complaint alleges that Respondent is a corporation engaged in construction and that it is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act. Respondent's answer does not plead specifically to these allegations. Denying Commission jurisdiction over it, Respondent "demands strict proof of same." Respondent does not refer to the jurisdictional issue in its brief and, presumably, no longer contests on this issue. The record does show that Respondent has built a number of commercial buildings, using "all types of construction materials" some of which "like air conditioners and things like that" originate out of state. Its annual gross volume of business is "around a million" dollars. It utilizes subcontractors as well as its own employees in its construction business. Respondent employed five to seven carpenter employees at the time of the inspection. At the time of the hearing, it employed 10 or 12 carpenters (see Tr. 11-13). On these facts, it is found [*17] that Respondent is an employer within the meaning of the Act, and that the Commission has jurisdiction over the subject matter and the parties. See Perez v. United States, 402 U.S. 146 (1971), and cases cited therein. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Quoting from Perez at 152:

"In United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, the decision sustaining an Act of Congress which prohibited the employment of workers in the production of goods 'for interstate commerce' at other than prescribed wages and hours, a class of activities was held properly regulated by Congress without proof that the particular intrastate activity against which a sanction was laid had an effect on commerce. * * *"

See also J.A. Walder, Inc., 2 OSAHRC 881 (1973) and Brand Electric Co. and Pattillo Construction Co., 2 OSAHRC 38 (1972).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The serious charge will be considered first.

Serious Citation

The record indicates that the subcontractor responsible for erecting the steel work on the addition under construction, [*18] General Supply Company, had stopped working a day or so before the inspection due to the lack of a stairway which was scheduled to arrive at the worksite a day or so later (Tr. 65-7, 87-8). Respondent's own employees were "just more or less marking time" on the day of the inspection (Tr. 67). According to Respondent's Building Superintendent Walden, it was determined that it would be appropriate for Respondent's own employees to stand on the roofs of two adjacent buildings and tie rebar on the lower beams at the second floor level -- at a level about 14 feet above the ground (Tr. 25). See Tr. 67-9, 71, 73, 76. Respondent's supervising officials indicated that the men were not to work in any "unsafe area" (Tr. 69); this included work on the beams above the second floor, without installation of scaffolding equipped with hand safety rails. See Tr. 69-78 -- Walden; 81-2 -- Patteson; 87-9 -- Butler. Early in the morning of January 22, 1975, before the inspection had begun, Mr. Walden had advised Foreman Patteson (who had telephoned Mr. Walden) to obtain safety railings for the scaffolding (Tr. 15-16; 77-8; 81). Mr. Patteson had picked up the safety equipment and had returned to [*19] the worksite just as Compliance Officer Stahly arrived to conduct the inspection (Tr. 20, 39-40, 54, 57; 71, 80).

As noted at the outset, Inspector Stahly testified that he saw an employee of Respondent atop a beam (at the third or roof level) of Respondent's worksite prior to the start of the inspection and took a picture (C 5, Tr. 20, 39, 53, 80). There were, he said, two employees, identified as Lindblom and Delao, on the second Floor (referred to as the "first" floor by the inspector, Tr. 23, 24) at the beginning of the inspection. The floor had an opening for an elevator and another for a stairway. An eight-foot stepladder stood on the second floor, and a scaffold stood in position on the ground level. The floor openings (C 2), the scaffold (C 3), and the stepladder (C 3-5) appear in photographs taken by the inspector. Pictures taken during the inspection show a worker sitting on top of the beam at the third level and an employee standing on the stepladder reaching up to the third level (Tr. 20-32; C 3-5). The men used the scaffold, with no hand safety rails, in getting onto the second floor and the roofs of the adjacent buildings (Tr. 23-5, 43; 73-5).

Mr. Stahly testified [*20] that no protection was needed on the second floor on the two sides that abutted the existing buildings (Tr. 27). He expressed the view, however, that 1926.700(b)(1) required Respondent's workmen to use a safety belt, lanyard, or a scaffold (an "equivalent device") in tying rebar at the third level as it was more than six feet above any adjacent working surface. In Mr. Stahly's opinion, Respondent violated the cited standard because neither of the workmen was protected by appropriate equipment while working on the beams on the upper level (Tr. 28-32, 42-3, 54; C 3, C 4, and C 5).

In its brief, the Secretary contends that the evidence shows that one of Respondent's employees was working at the third level, 26 feet above the ground, without the protection prescribed by the cited standard. Such evidence shows, moreover, according to the Secretary, a "serious" violation of the Act. n4 Respondent, on the other hand, states in its brief (p. 4) that:

There was evidence that two men were seen in one isolated instance tying reinforcing steel without benefit of safety belts as alleged but the evidence elicited from witnesses for the government did not conclusively show that such men were [*21] in fact performing assigned tasks without benefit of safety belts.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Section 17(k) provides that "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."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Careful review of the record and applicable law persuade me to conclude that Respondent cannot be held on this charge because it is apparent that both Lindblom and Delao were working above the second floor level on their own volition and contrary to instructions. n5 The serious citation was based on "individual employee choices of conduct" unknown to the Respondent, and it cannot survive even as a non-serious charge. See Brennan v. OSAHRC (Alsea Lumber Co.) 511 [*22] F.2d 1139 (9th Cir. 1975). There was only an "isolated brief violation of a standard by an employee" but not one by the employer. See Standard Glass Co., Inc., 1 OSAHRC 594 (1972).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Both workmen were terminated by Respondent after the inspection (Tr. 89).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Non-Serious Item No. 1

Compliance Officer Stahly testified that telephone numbers for a number of suppliers and subcontractors were readily available at Respondent's jobsite but that no emergency numbers for a physician, hospital, or ambulance were posted as required by 1926.50(f) (Tr. 21-22). The testimony was not rebutted, and Non-Serious Item No. 1 was thus established.

Non-Serious Item No. 2

As indicated above in discussing the serious charge, the record establishes that two of Respondent's employees, Lindblom and Delao, were at work on the second floor of the building under construction at a level about 14 feet above the ground. There was an eight-foot stepladder standing on the second floor, but it was not suitable for use in gaining [*23] access to the second floor, n6 The men had gained access to the second floor level by using the scaffold shown in C 1. See Tr. 14-15; 22-5, 32, 43, 46; 67-9, 71, 73-4; 81-2.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Building Superintendent Walden indicated there was an "extension" ladder on the job, but he was not certain where it was being used on the day of the inspection (Tr. 73).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The scaffold did not constitute a "suitable" ramp or runway as used in 1926.450(a)(1). The two workmen had been directed to work on rebar while standing on the roofs of the abutting buildings, so Respondent is chargeable with knowledge that the scaffold would be used to gain access to the second level.

Non-Serious Item No. 3

Section 1926.500(b)(1) requires that floor openings be guarded by a standard railing and toeboard or a cover. At the time of the inspection, there were two unguarded openings, one for an elevator and one for a stairway. The record indicates that two of Respondent's employees, Lindblom and Delao, were close enough at least for a brief period, [*24] to be exposed to falling through either one or both of the openings to the ground level 14 feet below (C 2; Tr. 25-7, 32, 42-51, 58). The record also indicates that Respondent's management should have known that the workmen might be on the second floor level near the openings (Tr. 73-7; 82, 88). The allegations of Item No. 3 were sustained.

Non-Serious Item No. 4

Section 1926.500(d)(1) requires each open-sided floor and platform six feet or more above an adjacent floor or ground level to be guarded by a standard guard fail or "the equivalent," except where there is an entrance to a ramp, stairway or fixed ladder. With respect to the charge involving this standard, Respondent states in its brief (p. 3):

* * * Admittedly, no guardrails or toeboards were installed at the time of the inspection as no work had begun in areas allegedly in violation of the Act.

The Secretary's inspector conceded that no guard rail was required on two sides of the second floor (Tr. 27). The Secretary states in its brief (p. 6) that "two open sides of the 14 foot high second floor of the aforesaid workplace were not guarded at all" and "two of respondent's employees were exposed to this unguarded [*25] opensided floor" (citing Tr. 27-8 and C 3; see also 51-3). The record bears out the Secretary's contention. And here again the record indicates that Respondent's management could have anticipated some exposure of an employee to one of the open sides (Tr. 73-7; 82; 88). Item No. 4 was sustained.

Penalties

Non-Serious Items 1, 2, 3, and 4 were established by the record, and consideration must be given to whether any penalty is justified. The Secretary proposed penalties of 0, $35, $40, and $35 for these items. Inspector Stahly testified that these amounts were arrived at by starting with an unadjusted figure for each item, taking into account the severity or "gravity," and then subtracting therefrom credits given for "good faith" (20%), "history" (20%), and "size" (10%). See Tr. 33-37, 41-52, 55. n7 While a proposed penalty is only advisory (Dreher Pickle Company, 2 OSAHRC 497 (1973), the amounts proposed by the Secretary in the instant matter are appropriate under the Act. Respondent has not been cited before. Its good faith has not been impeached (see, in addition to Inspector Stahly's testimony, Tr. 13; 67-71, 75-8; 81-2; 83-86; 87-9). The record indicates that [*26] Respondent is a relatively small business (Tr. 11-13). The gravity of Items 2, 3, and 4 was low because of the limited exposure.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 Section 17(j) provides: "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."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

CONCLUSIONS OF LAW

Based on the foregoing, and the whole record, the following conclusions of law are entered:

1. Respondent is now, and at all times mentioned herein, an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter;

2. The Secretary established that Respondent violated Section 5(a)(2) of the Act by failing to comply with 29 CFR 1926.50(f); 1926.450(a)(1); 1926.500(b)(1); and 1926.500(d)(1);

3. The Secretary [*27] did not establish that Respondent failed to comply with 29 CFR 1926.700(b)(1); and

4. The Secretary did not establish that Respondent violated the Act in a "serious" manner.

ORDER

Based on the foregoing, and the whole record, it is ORDERED that:

1. Tiems 1, 2, 3, and 4 of Citation No. 1 Non-Serious issued against Respondent on January 23, 1975, and the penalties proposed therefor, are AFFIRMED, and

2. Citation No. 2 Serious, issued against Respondent on January 23, 1975, and the penalty proposed therefor, are VACATED.

Dated: August 14, 1975

Harold A. Kennedy, Judge, OSAHRC