DICK CORPORATION

OSHRC Docket No. 16193

Occupational Safety and Health Review Commission

November 30, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall Harris, Reg. Sol., USDOL

C. Arthur Diamond, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Donald K. Duvall 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"). At issue is whether the judge erred in finding the Respondent, Dick Corporation ("Dick"), in violation of section 5(a)(2) of the Act for failure to comply with the occupational safety standards published at 29 C.F.R. 1926.451(d)(10) (Citation No. 2, item 1) and 29 C.F.R. 1926.302(b)(1) (Citation No. 1, item 4). n1

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n1 This case was directed for review by former Commissioner Moran. The direction for review did not specify issues to be considered by the Commission. The issues to be reviewed are those raised by Dick in its brief to the Commission taking exception to the judge's affirmance of the 1926.451(d)(10) and 1926.302(b)(1) charges. The Secretary of Labor did not file a brief before the Commission. Accordingly, neither party has taken exception to the judge's disposition of six other contested items. Because there is also no compelling public interest warranting Commission review of those items, they will not be considered on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). Those portions of the judge's decision and order relating to these unreviewed items are accorded the significance of an unreviewed judge's decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. 1976).

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I.

Alleged violation of 29 C.F.R. 1926.451(d)(10). n2

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n2 1926.451 Scaffolding.

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(d) Tubular welded frame scaffolds.

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(10) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

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A.

Dick Corporation, a general construction contractor, was engaged in construction at the Langley High School in Pittsburgh, Pennsylvania, when the worksite was inspected by two authorized representatives of the Secretary of Labor ("compliance officers"). The compliance officers observed a welded frame [*3] scaffold against the exterior north wall of the high school. The scaffold had one wooden plank at the 23-foot level. It is undisputed that the scaffold was not equipped with standard guardrails. Employees were not working on the scaffold at the time of the inspection. However, both compliance officers testified that they were informed during the inspection that an employee, Joseph Maruca, had worked on the scaffold two days prior to the inspection. They were further informed that the employee had used the scaffold to "chip out beam pockets" and that there had been no change in the condition of the scaffold in the interim, with the exception that there had been more planks in the working platform at the time the employee worked from it. n3

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n3 Photographic exhibits introduced by the Secretary clearly depict the condition of the scaffold at the time of the inspection. They also reveal that the "beam pockets" were medium-sized cavities in the side of the school wall.

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Compliance officer Weyrauch testified that an [*4] employee working on the unguarded scaffold would be exposed to the hazard of falling 23 feet onto rebars protruding from a retaining wall located below the scaffold. Compliance officer Romano testified that he observed the cited scaffold to be without guardrails, but with cross-bracing to the "rear" of the 23-foot-high planked surface and "scaffold bucks" on either "end." n4 He estimated that the scaffold bucks were approximately four feet above the scaffold. He testified that an employee working from the scaffold would be subject to a falling hazard and that a fall would cause death or serious physical injury.

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n4 Throughout this decision, we adopt the terminology used by the witnesses in describing the scaffold. The "rear" or "back" of the scaffold was the side away from the building wall. The "front" was the opposite side adjacent to the building wall. The "ends" were the remaining two sides of the rectangular scaffold framework. It is not clear that the witnesses were consistent in their use of the term "scaffold bucks." However, we adopt the Respondent's usage of the term to refer to the horizontal bars across the ends of the scaffold and above the planking.

[*5]

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Joseph Maruca, the employee identified in the testimony of the compliance officers, essentially corroborated their testimony. He testified that, although he had been working at ground level during the inspection, he had used the scaffold to chip beam pockets two days prior to the inspection. In particular, he had worked from the scaffold platform at the 23-foot level. At that time, the scaffold platform had contained 4 to 5 planks. It had been 8 feet long and 4-5 feet wide. There had been no guardrails on the scaffold at the time he worked from it. However, the scaffold cross-bracing had been behind him and a scaffold buck had been on either side of him. Both ends of the scaffold were equipped with a scaffold buck, a single horizontal bar across the end that Maruca estimated to be four or five feet above the scaffold platform. On cross-examination, Maruca acknowledged that these bars were intended to serve as reinforcement for the scaffold structure, not as a guardrail. However, in his opinion, they would prevent a fall. Maruca stated that he had used a pneumatic hammer to cut approximately [*6] four beam pockets into the wall and that each operation had taken 20 to 30 minutes to complete.

B.

Dick argued before the judge that the cited standard requires employers to provide guardrails or other "equivalent protection" and accordingly that the Secretary had the burden of proving that the scaffold frame, including the cross-bracing and the scaffold bucks, was not the equivalent of a standard railing. It argued that the Secretary failed to meet that burden and further that it had in fact proved that the cross-bracing and scaffold bucks provided protection from falling. It also argued that the cited standard is inapplicable because the sides and ends of the scaffold were not "open" within the meaning of the standard. Instead "[t]he platform was bordered on one side by the school wall, on the other side by cross-bracing of the scaffold, and each end was bordered by a 'buck' -- part of the scaffolding frame." Dick contended that the citation should be vacated for these reasons. Alternatively it argued that, even if the citation were affirmed, the proposed penalty of $600 should be reduced. It characterized this penalty as "excessive", particularly in view of the protection [*7] provided by the scaffold frame and the evidence of limited employee exposure.

In his decision and order, Judge Duvall rejected Dick's arguments, affirmed the citation and assessed the proposed penalty. He found that two days prior to the inspection Dick's employee Joseph Maruca had worked from a 23-foot-high scaffold that was not provided with standard guardrails, that Maruca was thereby exposed to the hazard of falling from the scaffold, and that death or serious physical harm would have been substantially probable if the employee had "fallen to the concrete or hard ground below." He held that Dick had not sustained the contentions raised in its post-hearing brief, supra, concluding that cross-braces "do not constitute acceptable substitutes for standard railings" because they are independently required under 29 C.F.R. 1926.451(d)(3) to keep the scaffold structure "plumb, square and rigid." He further found that "[e]ven on the wall side of the platform the employee was exposed to the falling hazard since there was substantial space between the platform and the wall which the use of outriggers may or may not have minimized or eliminated in this case." n5 He deemed a penalty [*8] of $600 "appropriate, taking into consideration all the factors specified in section 17(j) of the Act." n6 However, the judge did not otherwise specify the factors he took into consideration.

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n5 Employee Maruca testified that the outrigger held the scaffold "right up against the wall so you could get right to where you was [sic] going to work." This testimony was not controverted. Indeed there is no evidence of record indicating that there was a space between the scaffold and the wall through which an employee could fall. Accordingly, we reverse the judge's finding, supra, that Maruca was exposed to a falling hazard on the front or wall side of the scaffold.

n6 Section 17(j), 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.

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On review, Dick raises the same contentions it raised before the judge. Dick also contends that the judge erred in placing on it the burden of proving that the scaffold was not open-sided or open-ended and that the cross-bracing provided equivalent protection.

C.

Dick interprets section 1926.451(d)(10) as requiring employers either to equip their scaffolds with standard guardrails or to provide their employees with some form of equivalent protection. We do not agree. The cited standard requires that tubular welded frame scaffolds be equipped with a guardrail that is approximately 42 inches high, a midrail and toeboards. Under the clear terms of the standard, the "equivalent protection" language relied upon by Dick refers to the material used in constructing the required guardrail and midrail. See note 2 supra. Thus, the standard permits employers to construct guardrails (top rails) from materials that provide protection equivalent to that provided by 2 X 4 lumber and midrails from materials that provide protection equivalent to that provided by 1 X 6 lumber. Accordingly, we reject Dick's contention that the standard by its terms permits employers to [*10] use means of fall protection other than standard guardrails (toprail, midrail and toeboard).

We also reject Dick's contention that Judge Duvall erred in failing to place on the Secretary the burden of proving that it did not provide equivalent protection. We conclude that the burden of proving that the scaffold was equipped with guardrails and midrails constructed from "other material providing equivalent protection" falls on the employer asserting that it falls within this exception to the standard's general requirements. See Finnegan Construction Co., Inc., 78 OSAHRC 31/E3, 6 BNA OSHC 1496, 1978 CCH OSHD P22,675 (No. 14536, 1978). n7 The Secretary establishes a prima facie violation of 1926.451(d)(10) by proving that guardrails meeting the specifications of that standard are not provided on the open sides or ends of tubular welded frame scaffolds more than 10 feet above the ground or floor. The burden then shifts to the employer to prove that its scaffold falls within the "equivalent protection" exception. n8

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n7 In Finnegan the Commission noted the following:

We have consistently held . . . that when a standard contains an exception to its general requirement, the burden of proving that the exception applies lies with the party claiming the benefit of the exception. [citations omitted]

6 BNA OSHC at 1497, 1978 CCH OSHD at p. 27,371. In footnote 6 of that decision the Commission further noted that a standard may contain an exception "even though the word 'except' is not used." Id.

We interpret section 1926.451(d)(10) as containing a general requirement that tubular welded frame scaffolds be equipped with "[g]uardrails made of lumber, not less than 2 X 4 inches" and a "midrail of 1 X 6 inch lumber" and also containing an exception for scaffolds equipped with guardrails and midrails composed of "material providing equivalent protection." Accordingly, the holding in Finnegan is applicable here.

n8 Even if we were to accept Dick's interpretation of section 1926.451(d)(10), we would nevertheless agree with Judge Duvall that Dick did not establish its underlying factual assertion, that is, that the cross-bracing and scaffold bucks provided protection equivalent to that provided by a standard guardrail. A standard guardrail would prevent an employee from falling from the scaffold. In contrast, the cross-bracing and scaffold bucks would not prevent a fall. See discussion, infra.

[*11]

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Dick also contends that the cited standard does not apply to the scaffold in question because, as a result of the presence of the cross-bracing and the scaffold bucks, the back and the ends of the scaffold were not "open" within the meaning of 1926.451(d)(10). We recently responded to a similar contention in Western Waterproofing Company, Inc., 79 OSAHRC    , 7 BNA OSHC 1625, 1979 CCH OSHD P23,785 (No. 1087, August 14, 1979). In that case, the employer was cited for an alleged violation of 29 C.F.R. 1926.451(i)(11), a standard written in essentially identical language to that used in 1926.451(d)(10) but applicable to a different type of scaffolding. One of the employer's defenses was that "[t]he ends of the scaffold were not open within the meaning of the standard so as to require the erection of guardrails because the stirrup assemblies acted as guardrails in preventing employees from falling." n9 In response to this contention, we defined the terms "open sides and ends" as follows:

The sides and ends of a scaffold are open if the fall hazards addressed by the standard are present. [*12] See Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977); Western Waterproofing Co., 77 OSAHRC 179/B9, 5 BNA OSHC 1897, 1977-78 CCH OSHD P22,212 (No. 13538, 1977).

7 BNA OSHC at 1627, 1979 CCH OSHD at p. 28,861. n10 Applying that test to the facts of the case, we concluded that the employer was not required to erect guardrails on the ends of the scaffold in question because the stirrup assemblies would "prevent employees from falling from the ends."

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n9 We described the stirrup assemblies in question as follows:

[The stirrup assemblies] were at least one foot from each end of the scaffold. Each assembly was constructed of three metal bars arranged as a triangle the base of which extended the width of the scaffold. . . .

1926.451(d)(10), the same standard involved in the case now before us, because the scaffold was equipped with cross-bracing securing the vertical members of the scaffold. This contention was rejected on the ground that the cross-bracing would not prevent a fall.

[*13]

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The definition of "open sides and ends" quoted above is equally applicable to 1926.451(d)(10), the standard involved in the case now before us. See note 10 supra. Applying that definition to the facts of this case, we conclude that the back and the ends of Dick's scaffold were "open" within the meaning of 1926.451(d)(10). The judge's finding that Maruca was exposed to the hazard of falling from the back or ends of the scaffold is supported by a preponderance of the record evidence. With respect to both ends of the scaffold, the record establishes that the only obstacle to a fall was the presence of a scaffold buck, a single horizontal bar located four to five feet above the scaffold platform. Because of their height above the platform, these bucks did not even provide protection equivalent to that provided by a top rail, which under the standard must be "approximately 42 inches high." See note 2 supra. On the back of the scaffold, the only fall protection was provided by the diagonal scaffold cross-bracing. The record does not establish the exact height of the mid-point of this cross-bracing, [*14] that is, the point at which the two diagonal bars crossed. However, by comparing the relative heights of this mid-point and of the scaffold bucks, as depicted in the Secretary's photographic exhibits, it appears that the midpoint was no more than 2 to 3 feet above the scaffold platform. Both compliance officers testified that, in their opinion, Maruca was exposed to the hazard of falling from the scaffold. Their opinions are corroborated by the testimony as to the scaffold's configuration and by the photographic exhibits. Accordingly, we affirm the judge's finding that Maruca was exposed to the hazard of falling from the back or either end of the scaffold. Based on that finding, we further find and conclude that the back and the ends of the scaffold were "open" within the meaning of 1926.451(d)(10). n11 See M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979) (Review Commission enters findings based upon a preponderance of the evidence).

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n11 Dick correctly contends that the Secretary has the burden of proving that the sides or ends of a scaffold are open in order to establish a violation of 1926.451(d)(10). However, in view of our finding, supra, that the record establishes that the back and the ends of the scaffold in question were open, we need not reach Dick's contention that Judge Duvall erroneously placed on it the burden of proving that they were not open. The judge's error, if any, was harmless since the Secretary sustained his burden of proof.

See note 9 supra. The scaffold structure in that case would prevent a fall. Here it would not.

[*15]

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In sum, the record establishes that Dick's employee was exposed to the hazard of falling 23 feet from the open ends and back of a tubular welded frame scaffold that was not equipped with guardrails, midrails or toeboards. The record also supports the judge's finding that the probable result of such a fall would have been death or serious physical harm. Accordingly, we affirm the citation for serious violation of 1926.451(d)(10).

D.

A penalty in the amount of $600 was assessed by the judge for the serious violation of 1926.451(d)(10). The appropriateness of the penalty must be determined in light of the Respondent's size, good faith, and history of previous violations, and the gravity of the violation. See note 6 supra. Dick Corporation is a moderate to large construction firm with total sales for the year preceding the hearing of approximately $65,000,000. The average daily number of employees for the same year was 800. The record reveals no instances of prior violations of the Act. In the event of a fall from the cited scaffold the probable resultant injury would have been death or [*16] serious physical harm. The cross-bracing and bucks provided minimal protection. Weekly safety meetings were held at the site. On balance, we conclude that the assessed penalty of $600 is appropriate under 29 U.S.C. 666(i).

II

Alleged Violation of 29 C.F.R. 1926.302(b)(1). n12

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n12 The standard provides:

1926.302 Power-operated hand tools.

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(b) Pneumatic power tools (1) Pneumatic power tools shall be secured to the hose or whip by some positive means to prevent the tool from becoming accidentally disconnected.

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A.

Citation No. 1, item 4, alleged that Dick failed to comply with 1926.302(b)(1) in that

Safety clips or retainers were not securely installed or maintained on air hoses to pneumatic impact tools in the following location(s), to prevent attachments from being accidentally expelled:

(a) Air hoses to the Chipping hammer, with quick disconnect fittings, were not tied together from Gardner-Denver compressor to Chipping Hammer serial number 43275.

Compliance officers Weyrauch and [*17] Romano both testified that they observed an employee during the inspection using a pneumatic hammer (impact hammer) to chip out beam pockets. Item 4 relates to that hammer.

However, the testimony as to the gravamen of the violation is not clear. n13 When initially asked to explain the charge, compliance officer Weyrauch stated that "item 4 is that there was [sic] no safety clips on the hammer head itself and the hoses were not wired together." He later confused items 4 and 5 and also revised his initial testimony by stating "and 5 [sic] would be for all of the hose connections, those are air hoses and they could all become twisted off. They are just what they call quick disconnects so there should be retainers on each hose to keep any part of the pneumatic hammer from coming apart." n14 On cross-examination, Weyrauch was asked only two questions with respect to Item 4. The examination proceeded as follows:

Q . . . . Number 4, are you saying that the violation occurred along the hose.

A Yes, sir.

Q Where one hose was connected to another hose, there should have been a safety clip, is that your testimony? That is, what, number 4?

A Yes, sir.

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n13 In reviewing the record, it is first necessary to distinguish between those parts of the record that are relevant to item 4 and those that are relevant to item 5 of the citation. Item 5 relates to the same pneumatic hammer described in item 4. However, it is directed to the point of connection between the tool itself (the hammer) and the attachment (the "point" or "chisel", the instrument "that is doing the cutting or drilling"). The violation alleged in item 5 was Dick's failure to provide a device (a "tool retainer") that would prevent the attachment from being accidentally expelled.

The intermingling of items 4 and 5, which is evident throughout the record, begins with the citation. Item 4 contains an allegation, supra, that Dick failed to provide "retainers" and states that the purpose of the devices specified in the citation item was "to prevent attachments from being accidentally expelled." However, it is clear from the record as a whole that this language does not relate to the violation alleged as item 4 but rather to the violation alleged as item 5. Similarly, throughout the hearing, items 4 and 5 were discussed jointly. Indeed, most of the testimony concerning items 4 and 5 was directed to clarifying the charges in the citation. Finally, the judge's key finding of fact, infra, covers both items 4 and 5.

Accordingly, in our discussion herein, we have to the extent possible identified and separated out those parts of the record that are relevant to item 4.

n14 Weyrauch expanded on this testimony by indicating that there was a single hose affixed to the back end of the impact hammer. He did not describe the manner in which the hose was attached to the hammer. He indicated, however, that sections of this hose were connected by being twisted together and that the hoses were provided with "Chicago fittings", that is, holes through which a "retaining clip", e.g., a piece of wire, could be placed to prevent the sections of hose from twisting apart. Weyrauch testified that in the process of using the hammer "the hoses become twisted and it can become twisted apart."

[*19]

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Compliance officer Romano testified only briefly as to item 4. Aside from testifying that the tool was being used, his testimony on direct examination was limited to the following statements as to the nature of the charge and the hazard involved:

Number 4, okay -- number 4 would be the clips, the connections at the air hose are provided with little holes so that you can run clips or a wire through to keep them from coming apart. They are quick disconnect couplers . . . .

Okay. Number 4, if the lines aren't clipped together when they are under air pressure and they will come apart, they will whip and hit somebody and depending upon the air force, you would have an injury there . . . .

On cross-examination, Romano agreed with the statement of Dick's counsel that the alleged violation was "no clips . . . at the juncture of one hose to another hose."

In his post-hearing brief, the Secretary proposed the following conclusion of law:

Respondent violated the Safety and Health Standard in 29 CFR 1926.302(b)(1) by failing to install safety clips or retainers on the air hoses from the air compressor to [*20] the chipping hammer.

B.

Dick argued before the judge, in its post-hearing brief, that the citation should be vacated because the cited standard is not applicable to the cited conditions. It contended that the Secretary's allegation was that it violated 1926.302(b)(1) by failing to wire together the connections between the hoses supplying the impact hammer with air. It further contended that the cited standard applies only to the connection between the tool and the hose supplying it with air and not to the connections between sections of an air hose.

In his Decision and Order, Judge Duvall noted the defense raised by Dick. However, he did not directly respond to it. He entered the following finding of fact (number 5) with respect to items 4 and 5:

On November 20, 1975, respondent's employee James Turner operated a pneumatic hammer to chip out beam pockets in a brick wall without using safety clips or retainers to securely fasten the air hose and the chisel tool to the hammer (transcript cites and cites to exhibits omitted; emphasis added to that part of the finding relevant to item 4).

His discussion of item 4 was limited to the following statement:

In connection [*21] with the alleged violation of the standard concerned with safety clips on the air hose attached to the pneumatic hammer, I find the unrebutted testimony of the compliance officers to be sufficient evidence . . . to sustain this citation item (Finding of Fact 5, supra).

On review, Dick raises the same contention it raised before the judge.

C.

In Armor Elevator Co., Inc., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD P16,958 (Nos. 425 & 426, 1973), appeal dismissed, No. 73-2249 (6th Cir. 1973), the Commission held that the "preponderance of the evidence" test is applicable to Commission proceedings. Thus, findings by the judge or by the Commission are warranted if and only if they are supported by a preponderance of the evidence. See, e.g., M.J. Lee Construction Company, supra.

In the case now before us, we conclude that the judge's Finding of Fact 5, supra, to the extent it relates to item 4, is not supported by a preponderance of the evidence. The connection between the air hose and the impact hammer was only briefly mentioned in the testimony of compliance officer Weyrauch. See Part IIA, supra. Indeed the record does not even reveal [*22] the manner in which the hose was connected to the hammer. Moreover, the record as a whole establishes that the focus of the Secretary's case was on the connections between sections of the air hose. In particular, the citation, the testimony of compliance officer Weyrauch on cross-examination, all of the testimony of compliance officer Romano, and the Secretary's posthearing brief all indicated that the gravamen of the charge in item 4 was Dick's failure to securely fasten together sections of the air hose. Accordingly, we agree with Dick that the violation charged in item 4 was its failure to wire together the connections between the air hoses. We vacate that part of Finding of Fact 5 that states that Dick's employee operated a pneumatic hammer without using safety clips to securely fasten the air hose to the hammer.

We also agree with the Respondent that 1926.302(b)(1) does not apply to the condition cited. The cited standard clearly and unambiguously refers to the secure connection of a pneumatic power tool to the hose or whip to prevent accidental disconnecting of the tool. There is no indication within the standard that it applies to the connections between sections of [*23] the hose.

III

Order.

Accordingly, the citation alleging a serious violation of 29 C.F.R. 1926.451(d)(10) and the assessed penalty of $600 are affirmed. The citation item alleging a nonserious violation of 29 C.F.R. 1926.302(b)(1) is vacated unless, within ten days of the issuance of this decision, the Secretary requests an opportunity to submit a brief. n15

It is so ORDERED.

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n15 When a direction for review that does not specify the issues under review has been issued and the Commission is considering reversing any part of the judge's decision in response to an objection by the aggrieved party, the Commission's practice is to allow the opposing party an opportunity to brief the issue. This is consistent with subparagraph D2 of the Commission's Policy Statement of December 1, 1976, published at 41 Fed. Reg. 53015 (1976). Here, as in prior cases, we allow the Secretary an opportunity to file a brief by the issuance of a conditional order. E.g., Fabricraft, Inc., 79 OSAHRC    , 7 BNA OSHC 1540, 1543 n. 7, 1979 CCH OSHD P23,691 at p. 28,724 n. 7 (No. 76-1410, 1979).

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