PARAMOUNT PLUMBING & HEATING CO.

OSHRC Docket No. 12652

Occupational Safety and Health Review Commission

May 11, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

George Nadler, President, Paramount Plumbing & Heating Company, Inc., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

In this case, Judge Ben D. Worcester vacated a citation alleging that Respondent committed nonserious violations of 29 C.F.R. 1926.500(d)(1), n1 1926.450(a)(9), n2 and 1926.150(c)(1)(iv). n3 The issues on review are 1) whether Judge Worcester erred in vacating the alleged violations on the grounds that Respondent lacked both control over and responsibility for the maintenance of the area concerned and was not contractually responsible for providing the subject protection; 2) if so, does the evidence of record establish that Respondent violated the cited standards; and 3) whether the Judge erred in denying Complainant's motion to amend the characterization of the Section 1926.500(d)(1) charge from nonserious to serious. n4 For the reasons that follow, we find that the Judge erred in vacating the citation on the basis that Respondent did not control and was not responsible for the violative [*2] conditions. We find that the evidence establishes violations of Section 1926.450(a)(9) and Section 1926.150(c)(1)(iv), but that Complainant failed to prove that Respondent violated Section 1926.500(d)(1). Accordingly, we need not decide whether it was error to deny the motion to amend the characterization of the alleged violation of Section 1926.500(d)(1).

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n1 Section 1926.500(d)(1) states:

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.

n2 Section 1926.450(a) states in pertinent part:

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. . . . (9) The side rails shall extend not less than 36 inches above the landing. . . .

n3 Section 1926.150(c)(1)(iv) states:

One or more fire extinguishers, rated not less than 2A, shall be provided on each floor. In multistory buildings, at least one fire extinguisher shall be located adjacent to stairway.

n4 Judge Worcester rendered his decision in the form of oral findings of fact and conclusions of law at the close of the hearing and before the parties were afforded an opportunity to submit proposed findings and conclusions. This procedure is contrary to the Administrative Procedure Act, which requires that parties be afforded the opportunity to submit proposed findings and conclusions before a decision is rendered. 5 U.S.C. 557(c)(1). The parties, however, have not objected to the procedure followed by the Judge, and his error can therefore be said to be harmless in this case. We stress, however, that the Administrative Procedure Act is applicable to our proceedings and that compliance with its requirements is expected. See P & Z Co., No. 14822, BNA 4 OSHC 1252, CCH OSHD para. 20,728 (1976).

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Respondent was engaged as a plumbing subcontractor on the site of a high rise construction project in New York City when the site was inspected by Complainant's compliance safety and health officer (CSHO) on February 26 and 27, 1975. As a result of the inspection Respondent was issued the citation here at issue.

Alleged Violation of Section 1926.500(d)(1)

Item one of the citation alleged a violation of the standard for lack of proper guardrails on open-sided floors. The citation identified the locations as "1-top deck, 29th floor, all sides except northwest wing. Guarding had inadequate bracing. 2-7th floor, north side (inner corner), no guarding."

The union steward, Marannicio, represented the employees during the "walkaround" n5 with the CSHO. Respondent's foreman chose not to accompany them as he was busy with other matters. Instead, the foreman instructed Marannicio to inform him of any violations found by the CSHO.

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n5 Section 8(e) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 657(e) provides in pertinent part:

Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection.

29 C.F.R. 1903.8(a) implements this statutory requirement.

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The CSHO testified that he observed two Paramount employees working in the middle of the 29th floor approximately 15 to 20 feet from the edge. He further testified that Marannicio told him Paramount's employees would be working at all areas on the floor and that this was their usual work. The CSHO stated that the perimeter guarding was improperly braced and swayed in the wind. He also testified that on the seventh floor he observed two Paramount employees drinking coffee eight feet from an unguarded edge.

During the hearing, the Judge, questioning whether the citation included floors two through seven, concluded that the language in the citation "2-7th floor" was too ambiguous and denied Respondent due process. Accordingly, he vacated this portion of item one even though Respondent acknowledged that it interpreted "2-7th floor" to include the second and seventh floors.

As for the 29th floor, the Judge ruled that Respondent was not contractually responsible for the installation of perimeter guarding. He also found that the Secretary failed to sustain his burden of proof because he based his case [*5] upon "uncorroborated hearsay" and the "unsubstantiated opinion of the compliance officer."

On review the Secretary argues that the Judge erred in vacating the portion of item one relating to the seventh floor since Respondent understood that the seventh floor was included in the citation. The Secretary argues further that, regarding the 29th floor, the evidence shows that Respondent's employees were exposed to the hazard of falling and therefore the Judge erred in vacating this portion of item one.

In order to support a citation, the Secretary must establish that Respondent's employees had access to the zone or zones of danger created by the hazardous conditions. A. Munder & Sons, Inc., 76 OSAHRC 106/A2, BNA 4 OSHC 1593, CCH OSHD para. 21,000 (1976); Gilles & Cotting, Inc., No. 504, BNA 3 OSHC 2002, CCH OSHD para. 20,448 (1976).

Regarding the 29th floor, the Secretary established that two of Respondent's employees were 15 to 20 feet from the edge. However, as we stated in Gilles & Cotting, Inc., supra, access is established by showing that the employees, either while in the course of their normal work assignments, their personal comfort activities while on the job, [*6] their routes of approach to and departure from the work areas, may reasonably be expected to come into a zone of danger. Accordingly, proof that two employees were within a certain proximity to conditions presenting a falling hazard does not in itself establish access. A. Munder & Sons, Inc., supra; Public Improvements, Inc., No. 1955, BNA 4 OSHC 1864, CCH OSHD para. 21,326 (1976). The only other evidence concerning access is the CSHO's testimony on what Marannicio told him. Marannicio was not authorized to act as Respondent's representative. He was merely told to report on the results of the inspection. That testimony, then, was hearsay since it was a statement made by a nonmanagement employee. Compare A.J. McNulty & Co., 76 OSAHRC 46/D2, BNA 4 OSHC 1097, 1099 nn. 4, 5, CCH OSHD para. 20,600 (1976). We have previously held that uncorroborated hearsay testimony is insufficient to establish a violation. California Rotogravure Co., 15 OSAHRC 261, BNA 2 OSHC 1515, CCH OSHD para. 19,240 (1975), aff'd. No. 75-1743, 9th Cir., Jan. 25, 1977; B & K Paving Co., 11 OSAHRC 444, BNA 2 OSHC 1173, CCH OSHD para. 18,570 (1974). Accordingly, Complainant failed to prove [*7] Respondent's employees had access to the inadequately guarded perimeter of the 29th floor. Thus, the Judge properly vacated item one with regard to the 29th floor.

Regarding the seventh floor, the Judge erred in vacating this part of item one on the grounds that the language in the citation was ambiguous and denied Respondent due process. The citation contained the words "7th floor" and Respondent admitted it had notice that this floor was at issue.

Nevertheless, a violation of Section 1926.500(d)(1) has not been proven. The only evidence concerning access was the CSHO's testimony that two of Respondent's employees were standing eight feet from the perimeter. However, there is no evidence that the employees were even working on the floor or that any work would require them to move to the perimeter. In these circumstances the Secretary has not met his burden of proving employee access to the hazard presented by the unguarded perimeter. A. Munder & Sons, Inc., supra; see Hayden Electric Services, Inc., No. 4034, BNA 4 OSHC 1494, CCH OSHD para. 20,939 (1976); Dic-Underhill, a Joint Venture, 76 OSAHRC 41/A2, BNA 4 OSHC 1051, CCH OSHD para. 20,563 (1976).

Alleged [*8] Violations of Section 1926.450(a)(9) and Section 1926.150(c)(1)(iv)

Item two charged that a ladder had side rails which did not extend more than 36 inches above the top deck landing. Item three alleged that fire extinguishers were not present on the 29th floor. The CSHO testified that he observed Respondent's employees using the ladder referred to in item two and that it provided the only access to the 29th floor. The CSHO was unable to ascertain which of the subcontractors was responsible for maintaining the ladder and fire extinguishers. Therefore, he cited the general contractor and each subcontractor that had employees exposed to the violative conditions, a total of 12 subcontractors including Respondent.

The Judge vacated these two items on the grounds that Respondent "did not have any control over the area where such alleged violations occurred nor was responsibility for its maintenance or contractually responsible for providing the protection alleged to be insufficient, is not accounted for hazards created by employers having such responsibility."

In Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (1976) and Anning-Johnson [*9] Co., 76 OSAHRC 54/A2, BNA 4 OSHC 1193, CCH OSHD para. 20,690 (1976) we modified our rule with respect to subcontractor liability on a multi-employer construction site. We held that a subcontractor whose employees are exposed to violative conditions of which the subcontractor has knowledge may, under certain limited conditions, be absolved from liability. Initially, the subcontractor must show that it did not create or control the violative circumstances. Thereupon, the subcontractor can avoid liability if it is able to show that it lacked the expertise or ability to abate the violative condition(s), or that it took reasonable steps to protect its employees from the hazardous conditions.

Here, there is no evidence establishing either of these defenses. Accordingly, we reverse and find violations of items two and three of the citation. Nonetheless, since this case was tried prior to our decisions in Grossman and Anning-Johnson, supra, we will afford Respondent an opportunity to present any additional evidence it may have bearing on this matter. Otherwise, and having considered the penalty factors of Section 17(k) of the Act, we adopt the Secretary's proposed penalties [*10] of $25 for the violation of Section 1926.450(a)(9) and $25 for the violation of Section 1926.150(c)(1)(iv).

Accordingly, the Judge's decision insofar as he vacates item one is affirmed. We reverse and find violations of items two and three unless, within ten (10) days of the date of receipt of this decision, Respondent requests in writing a further hearing. In such event, the order is withdrawn as to items two and three and the case remanded for further proceedings consistent with this decision. It is so ORDERED.

Order Correcting Transcript

The parties are notified that so much of the transcript of this proceeding as pertains to my decision read into the record at the hearing (Tr. 79-84) should be corrected to read as follows:

JUDGE WORCESTER: Let the record show that the hearing is reconvening at one thirty, the parties being present and this is a decision.

United States of America Occupational Safety and Health Review Commission, Secretary of Labor against Paramount Plumbing and Heating Corporation, respondent. Appearing in behalf of the Secretary, Jack Fisher, Esq., of New York, New York and for the respondent, George Nadler, President, Pro Se, for Respondent. This proceeding [*11] arises pursuant to a notice of contest filed by respondent under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. 651, et. seq.), hereinafter called the Act.

On March 11, 1975, a citation was issued alleging that respondent had violated section 5(a)(2) of the Act, and three separate standards promulgated pursuant to the authority vested in the Secretary by section 6 of the Act, which have been published in Title 29 of the Code of Federal Regulations, the three being section 1926.500(d)(1) for which a penalty of two hundred fifty dollars was proposed; failure to comply with ection 1926.450(a)(9) for which a penalty of twenty five dollars was proposed and third, failure to comply with section 1926.150(c)(1)(IV), with a proposed penalty of twenty five dollars.

The first item involves alleged failure to provide perimeter guarding on the 29th floor of a building under construction at 300 Mercer Street, New York, New York, which was inspected by a representative of the complainant on February 26, 1975. The evidence reveals that the respondents herein was the plumbing or piping contractor and engaged in installing plumbing [*12] in this building as a subcontractor. It is not disputed, in fact, it is stipulated that the respondent is an employer engaged in commerce within the meaning of the Act and is subject to its provisions.

Upon the consideration of the record as a whole including testimony which has been received here today, I make the following findgs of fact: One, that although the complainant, through the acquisition of additional facts acquired after the inspection, but before the issuance of the citation on March 11, 1975, two months before the notice of hearing and more than three months before trial, failed and neglected to promptly and diligently take appropriate action to put the respondent on notice that the complainant would move to amend the citation and Complaint by alleging in item one that there was a serious violation of section 1926.500(d)(1) instead of a non-serious violation. Two, the complainant failed and neglected to make a clear and plain statement of the facts in which item one of the citation and paragraph V(a) of the Complaint in that so much of this citation as pertains to the contention, first stated at trial, that there were violations on floors, two, three, four, five, [*13] six and seven, was and is considered to be sufficient grounds for vacating so much of item one as pertains to floors, two, three, four, five, six and seven. Three, the complainant has not sustained the burden of proof that respondent's employees were not protected by a standard railing of any equivalent on the 29th floor as alleged in the Complaints.

The evidence for the Secretary including uncorroborated hearsay shows only that two of the respondent's employees were installing plumbing components on the 29th floor, that there was in fact a railing, which, in the unsubstantiated opinion of the Compliance Officer, was unstable and that the concrete contractor, Dic-Underhill whose employees were also on the 29th floor, were contracturally responsible for supplying carpenters to erect and maintain perimeter guarding, and that respondent is a plumbing subcontractor employing no carpenters and having no contractural responsibility for perimeter guarding. Four, the evidence does not show the respondent had contractural responsibility for the ladder providing access from the 28th to the 29th level or for the fire extinguishers. Five, there was no proof that respondent was in control [*14] of any portion of the job site on February 26, 1975. Six, there was no proof that the respondent has a responsibility for providing a means of access between floors or supplying fire extinguishers. Seven, all trades having employees on the 29th floor including the general contractor were cited for failure to supply fire extinguishers.

Conclusions of law: One, the complainant has failed to sustain the burden of proof that the respondent violated 29 C.F.R. 1926.500(d)(1) as alleged in citation number one and paragraph V(a) of the Complaint. Two, the respondent, a subcontractor charged with three non-serious violations of the Act and sections 1926.500(d)(1), 1926.450(a)(9) and 1926.150(c)(1)(IV), Title 29 of the Code of Federal Regulations, not having either control over the area where such alleged violations occurred or responsibility for its maintenance or contracturally responsible for providing the protection alleged to be insufficient, is not accountable for hazards created by employers having such responsibility.

It is, therefore, hereby ordered that the citation and proposed penalty of three hundred dollars be vacated and this proceeding be dismissed.

CONCURBY: MORAN (In Part); CLEARY [*15] (In Part)

DISSENTBY: MORAN (In Part); CLEARY (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Although I agree with the lead opinion's conclusion that complainant failed to establish the requisite employee endangerment to the hazards alleged in the 29 C.F.R. 1926.500(d)(1) charge, I do so on the basis that the evidence fails to establish that any of respondent's employees were actually exposed to those hazards. Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion). However, vacation of that charge and the remaining two as well is warranted because, as Judge Worcester properly concluded, the evidence fails to establish that respondent was responsible for any of the alleged violative conditions. See Secretary v. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975).

In the Anning-Johnson case, the United States Court of Appeals for the Seventh Circuit held "that the Act does not allow the Secretary to issue citations to . . . subcontractors" for conditions which they did not create or cause or for which they did not otherwise have responsibility. 516 F.2d at 1086 and 1091. As the Court properly [*16] observed:

"The Act is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards."

516 F.2d at 1088. In this connection the Court stated:

"We fail to see how requiring several different employers to [correct alleged violations] fulfills the purposes of the Act any more effectively than requiring only one employer to do so."

516 F.2d at 1089. Adherence to the Court's holding in Anning-Johnson would avoid the ridiculous result in this case of charging the general contractor and 12 subcontractors with the same alleged violations.

Finally, I must once again disagree with the majority's shifting of the burden of proof to the employer to establish that he was not responsible for the alleged violative conditions. See my dissenting opinions in Secretary v. Grossman Steel & Aluminum Corp., OSAHRC Docket No. 12775, May 12, 1976, and Secretary v. Anning-Johnson Company, OSAHRC Docket No. 3694, May 12, 1976, for a more detailed expression of my views on that matter as well as upon the many other weaknesses in the Barnako - Cleary rules on subcontractor liability.

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN [*17] PART:

I concur with the Chairman's disposition of the allegations concerning the standards at 29 CFR 1926.450(a)(9) (ladders) and 1926.150(c)(1)(iv) (fire extinguishers). I dissent, however, from the majority's n6 vacation of that part of the citation that alleges a failure to comply with the open floor guarding standard, 29 CFR 1926.500(d)(1). I disagree specifically with the conclusion expressed in the Chairman's opinion that the compliance officer's unrebutted testimony concerning statements made to him by union steward Marannicio n7 during the "walkaround" is uncorroborated hearsay and therefore not sufficiently reliable to sustain the Secretary's burden of proving that respondent's employees had access to the inadequately guarded perimeter of the 29th floor and the unguarded perimeter of the 7th floor.

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n6 Commissioner Moran's concurring opinion relies on positions expressly rejected by the Commission. Access to a hazard, not actual exposure, is an element of the Secretary's case. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1976-77 CCH OSHD para. 20,448 (No. 504, 1976). An employer whose employees are exposed to hazardous conditions need not have created nor controlled the conditions to be responsible for such exposure. Anning-Johnson Co., 4 BNA OSHC 1193, 1976-77 CCH OSHD para. 20,690 (No. 3694 & 4409, 1976).

n7 There is nothing in our precedent or in the Act itself that prohibits the use of an otherwise nonmanagement employee as an employer's representative during a walkaround.

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Upon his arrival at the worksite on February 26, 1975, the compliance officer presented his credentials to respondent's foreman, the official of highest authority on the site, and advised the foreman of his right to accompany the officer during the walkaround. The foreman told the compliance officer that he (the foreman) would be unable to represent respondent on the walkaround because of other pressing work. He informed the compliance officer, however, that Marannicio would accompany the officer on the inspection and would relate any conditions that the officer alleged to be hazardous. n8

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n8 The Chairman's statement that Marannicio was instructed by the foreman to report conditions alleged to be hazardous may be misleading. The evidence of record merely indicates that the foreman told the compliance officer that Marannicio would make such a report. The scope of Marannicio's authority is not otherwise indicated. What is relevant, however, is Marannicio's apparent authority, which is discussed infra.

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During the inspection, the compliance officer observed two of respondent's employees working on the 29th floor within 15 or 20 feet of the inadequately guarded floor's edge. Marannicio identified these employees as respondent's and informed the compliance officer that the employees would be working over the entire floor installing pipes. The compliance officer also observed two of respondent's employees drinking coffee while standing approximately eight feet from an unguarded edge of the 7th floor. Marannicio also identified these employees as respondent's and stated that they would be working on all areas of the floor. n9 At the conclusion of the walkaround, which took several hours and extended into the next day, the compliance officer returned to respondent's site foreman for the closing conference to inform him of what was discovered. The foreman verified that his men were working on the 7th and 29th floors, but denied responsibility for the installation of guard railings.

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n9 The Chairman's statement that there is no evidence that the employees observed on the seventh floor were working on the floor in erroneous. These employees identified themselves to the compliance officer as Paul De Maieo and Manny Bayno. At the closing conference, respondent's foreman stated that these men were working on the seventh floor at the time of the inspection (Tr. 33-35).

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As respondent's official of highest authority at the site, the foreman was authorized to represent respondent during the walkaround. He chose not to do so. His statement to the compliance officer that Marannicio would accompany the compliance officer and inform him (the foreman) of hazardous conditions indicates that he did not intend to rely exclusively on information related by the compliance officer at the closing conference. Indeed, the closing conference was conducted only after the foreman had spoken with Marannicio.

In this situation, I would hold that Marannicio's statements were not hearsay. The statements were admissions made by respondent's representative. Fed. Rules Evid. Rule 801(d)(2). Even if the statements were hearsay, they would come within the exceptions for present sense impressions, Fed. Rules Evid. Rule 803(1), or the "catch-all" for trustworthy statements, Fed. Rules Evid. Rule 803 (24). At no time was it made clear to the compliance officer that the foreman believed that representation of his employer on the walkaround was unnecessary or unimportant. See [*21] generally Western Waterproofing Co., Inc., 4 BNA OSHC 1310, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976). Indeed, despite the fact that the compliance officer was obligated to inform the foreman at a closing conference of what was discovered during the inspection, the foreman's unqualified statement that Marannicio would convey to the foreman conditions alleged to be hazardous reasonably would have appeared to the compliance officer as a statement that the foreman was seeking to exercise his right to assure representation of his employer without abandoning his work by authorizing Marannicio to act in the foreman's place as respondent's representative. Marannicio's conduct during both days of the inspection did not indicate differently; nor did the foreman's conduct at the closing conference alter the impression.

The compliance officer relied on Marannicio's statements. Rather than spending additional hours observing the work patterns of respondent's employees in order to ascertain how near the perimeter of the two floors work would take them, the compliance officer accepted the accuracy of Marannicio's representation of the work patterns. An employer's right to be represented [*22] during a "walkaround" is for the purpose of aiding the inspection. Section 8(e) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 657(e). Reliance on statements made by employer representatives during the walkaround may aid a compliance officer in obtaining information otherwise unobtainable or obtainable only after lengthy investigation. If a compliance officer could not rely on such statements, the Secretary's already taxed resources would be burdened even further, reducing his ability to dicover and obtain speedy abatement of hazardous conditions. This inspection lasted two days even after reliance was placed on Marannicio's statements. It was not disputed that the conditions created a serious hazard. n10 To hold that the statements were unreliable for decisional purposes is to permit respondent to derive the benefit of having a representative on the walkaround while denying the Secretary the benefit of information obtained from the representative.

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n10 The citation alleged a nonserious violation. The unrebutted testimony of the compliance officer that there is a substantial probability that a fall from the 7th or 29th floor of a high-rise building would result in serious bodily injury or death merely states the obvious. The Secretary moved to amend the citation to conform to the evidence pursuant to Fed. R. Civ. P. 15(b), made applicably by Commission Rule 2(b). The Judge denied the motion. The motion should have been granted. Respondent would not be prejudiced thereby. General Electric Company, 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), reversed on other grounds, 540 F.2d 67 (2d Cir. 1976).

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