DANIEL CONSTRUCTION COMPANY

OSHRC Docket No. 16265

Occupational Safety and Health Review Commission

April 20, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Mary Z. Azzeo, Regional Solicitor, U.S. Department of Labor, Office of the Solicitor

Luis F. Antonetti, for the employer

Robert T. Thompson, for the employer

Gregory B. Tobin, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor ("the Secretary") issued citations to Daniel Construction Company ("Daniel") alleging various violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Administrative Law Judge David H. Harris issued a decision partly adverse to both parties. Their petitions for review were granted under section 12(j) of the Act, 29 U.S.C. 661(i). The primary issues before us are:

1. Whether the judge erred in vacating item 1 of citation 2, which alleged serious violations of 29 C.F.R. 1926.28(a) for failure to provide appropriate personal protective equipment to employees exposed to a falling hazard.

2. Whether the judge erred in affirming item 1 of citation 1, that alleged an other than serious violation of 29 C.F.R. 1926.102(a)(1) for failure to provide adequate eye protection for employees performing welding [*2] operations.

3. Whether the judge erred in affirming item 2 of citation 1, which alleged an other than serious violation of 29 C.F.R. 1910.219(d)(1) for failure to guard the pulley of an alligator shears.

4. Whether the judge erred in affirming item 1 of citation 3, that alleged a serious violation of 29 C.F.R. 1910.212(a)(3)(ii) for failure to guard the point of operation of two alligator shears.

We affirm the judge's decision in part and reverse it in part.

I

Daniel was engaged in the construction of a large pharmaceutical warehouse in Puerto Rico when two compliance officers visited the worksite. The compliance officers testified that they observed employees installing a railing on the perimeter of a flat roof. The roof was 26 feet 10 inches above the ground, except for an area on the northwest side that was 10 feet above a gable. The area of the roof was about 280 feet by 180 feet and, except for a 25 by 30 feet section, had been completed. At the time of the inspection the northwest, south, and extreme west perimeters of the roof were not protected by guardrails.

The compliance officers testified to five instances where employees were exposed to a falling hazard [*3] because they worked close to the unguarded edge of the roof and were not using protective equipment such as tied-off safety belts. This was alleged to violate section 1926.28(a). n1 In order to establish a violation of section 1926.28(a), the Secretary must prove, among other things, that "a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous conditions, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment." S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1263, 1979 CCH OSHD P23,480, p. 28,436 (No. 15855, 1979), rev'd, 659 F.2d 1273 (5th Cir. 1981). The judge concluded that in each instance section 1926.28(a) had not been violated. We reverse the judge and conclude that the Secretary has sustained his burden with respect to each of the employees involved. n2 We find that a reasonable person would have recognized the existence of an obvious fall hazard requiring the use of the identified form of personal protective equipment. See Stearns-Roger, Inc., 80 OSAHRC 103/A2, 8 BNA OSHC 2180, 2184, 1980 CCH OSHD P24,870, p. 30,667 (No. [*4] 78-819, 1980). In addition, all the observed employees were either actually exposed or had access to the cited fall hazards. See Brown & Root, Inc., 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1059-60, 1980 CCH OSHD P24,275, pp. 29,569-570 (No. 76-3942, 1979); Stahr and Gregory Roofing Co., 79 OSAHRC 2/B12, 7 BNA OSHC 1010, 1011-12, 1979 CCH OSHD P23,261, pp. 28,134-135 (No. 76-88, 1979); Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 2050-51, 1978 CCH OSHD P23,135, pp. 27,952-953 (No. 16057, 1978).

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n1 1926.28 Personal protective equipment.

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(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

n2 Chairman Rowland would vacate citation 2 because he believes the Secretary failed to satisfy his burden of proof for the reasons set forth in n.4. Mr. Rowland does not express a view at this time as to whether the burden of proof set forth in the Commission's S & H Riggers decision is the appropriate test for determining a violation of section 1926.28(a).

[*5]

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Both compliance officers testified that a welder and an assistant were erecting a railing close to the northwest edge of the roof. The employees had been provided and wore safety belts with lanyards, but they were not tied off. Photographic exhibits C-2C, C-2D, and C-2E show that the welder and his assistant were performing welding operations within 4 feet of the unprotected edge of the roof. The employees could have been protected by tying off the safety belt and lanyard to lifting lugs 4 feet from the edge of the roof. The judge held that the failure of the welder and his assistant to tie off was aberrant and could not have been anticipated by Daniel. We disagree. As we shall discuss in more detail below, the failures to wear or tie off safety belts in this case are too numerous to permit the conclusion that they were the result of unpreventable employee misconduct.

Compliance officer Santisteban also testified that two employees carrying 20 foot long steel rods to the welders were 36 inches from the unprotected edge of the roof. The employees came within 18 inches of the edge when they held [*6] the rods in place while the rods were welded. No safety line was in place. These employees also were wearing safety belts but were not hooked up. The judge found no violation, apparently because these employees were tied off on other occasions and therefore that their failure to do so on this occasion was unpreventable. The employees carrying the steel rods were exposed to an obvious fall hazard. While the inspection party was on the roof, ropes were brought up and strung parallel to the edge of the building enabling the employees to attach their safety lines to the rope. The Secretary established that tying off the lanyards attached to the employees' safety belts to a safety line would protect them from the hazard. That no safety line was provided by Daniel before the inspection for these employees to tie off to shows that the violation was caused by Daniel's omission, not that of the employees, and that Daniel had knowledge of the violative condition.

Compliance officer Maldonado also testified that he observed that Daniel's area superintendent was not wearing a safety belt or lanyard while installing a lifeline 4 feet from an unprotected edge of the roof. In addition, [*7] two employees assisting the superintendent were wearing safety belts and lanyards, but were not tied off and came within 4 feet of the edge of the roof. The judge concluded that the area superintendent and the two employees assisting him in installing the lifeline were not exposed to a falling hazard because they did not approach closer than 4 feet to the unprotected edge. We disagree. These employees had access to the unprotected edge and were exposed to the danger of falling. See Otis Elevator Co., 6 BNA OSHC at 2050, 1978 CCH OSHD at p. 27,952. The Secretary demonstrated that they would be protected from the hazard by wearing safety belts and using a lanyard to tie off to safety lugs located 4 feet from the edge of the roof.

Compliance officer Maldonado also testified that an employee leaned over an unprotected edge of the roof to grab the sling of a crane boom and was not using protective equipment. The judge concluded that the Secretary did not establish that the employee was a Daniel employee. We disagree. Compliance officer Maldonado testified that the project manager told him that "all the employees on the project belonged to Daniel Construction." This unrebutted [*8] testimony is sufficient to establish that the person leaning over the edge was a Daniel employee. n3

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n3 Furthermore, in response to Request for Admission No. 27, Daniel admitted that its employees were engaged in various construction activities on the roof area of the warehouse.

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We now consider whether Daniel established the defense of unpreventable employee misconduct. We have held that the employer must prove that the employee's action constituting noncompliance with a standard was a departure from a uniformly and effectively enforced workrule. See Daniel International Corp., Wansley Project, 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 2031, 1981 CCH OSHD P25,813, pp. 32,265-266 (No. 76-181, 1981); Stuttgart Machine Works, Inc., 81 OSAHRC 141/A2, 9 BNA OSHC 1366, 1368-69, 1981 CCH OSHD P25,216, pp. 31,141-142 (No. 77-3021, 1981). While Daniel had a safety rule requiring the use of safety belts when working in high places and had taken measures to communicate the rule to its employees, the rule had not been [*9] effectively implemented. First, Daniel's area superintendent engaged in violative conduct and was present on the roof while other violations occurred in plain sight. Accordingly, the supervisor's knowledge of the violations, both actual and constructive, is imputable to Daniel for the purpose of proving employer knowledge of the violations unless Daniel establishes that it took all necessary precautions to prevent the violations, including adequate instruction and supervision of its supervisor. See H.H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA OSHC 1042, 1047-48, 1981 CCH OSHD P25,712, p. 32,057 (No. 76-4765, 1981); Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1356, 1980 CCH OSHD P24,457, p. 29,859 (No. 76-3105, 1980); Daniel International Corp., Wansley Project, 9 BNA OSHC at 2030, 1981 CCH OSHD at p. 32,265; The Kansas Power & light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1204-06, 1977-78 CCH OSHD P21,696, pp. 26,057-59 (No. 11015, 1977). A supervisor was involved in the misconduct. This is strong evidence that Daniel's safety program was lax. See Daniel International, Wansley Project, 9 BNA OSHC at 2031, 1981 CCH OSHD at p. 25,813A; [*10] United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 2123, 1981 CCH OSHD P25,579, p. 31,907 (No. 78-6265, 1981), appeal docketed, No. 81-4342 (5th Cir. Aug. 26, 1981). The Commission has stated that where a supervisory employee is involved in the violation the proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to establish since it is the supervisor's duty to protect the safety of employees under his supervision. See Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978); Kansas Power & Light Co., 5 BNA OSHC at 1204-06, 1977-78 CCH OSHD pp. 26,057-59. Daniel has not established that the supervisor was himself adequately trained or supervised with regard to safety matters. See H.H. Hall Construction Co., 10 BNA OSHC at 1048, 1981 CCH OSHD at p. 32,057. Second, looking at the record as a whole, the instances of employees failing to tie off their lanyards are too numerous to permit a conclusion that Daniel's rule requiring the use of safety equipment was effectively enforced. See Daniel International Corp., Brown & Williamson Project, [*11] 80 OSAHRC 57/A2, 9 BNA OSHC 1980, 1983 n.9, 1981 CCH OSHD P25,492, p. 31,790 n.9 (No. 15690, 1981), citing Maryland Shipbuilding and Drydock Co., 75 OSAHRC 85/E9, 3 BNA OSHC 1585, 1586, 1975-76 CCH OSHD P20,063, p. 23,861 (No. 4503, 1975). Indeed, with respect to two employees, Daniel had not provided life lines to which employees could tie off. We therefore find that the defense was not established. n4

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n4 Chairman Rowland would vacate citation 2 largely for the factual reasons assigned by the judge. For those instances where employees were exposed to a fall hazard, he does not share the majority's view that the violations were so numerous that Daniel knew or with the exercise of reasonable diligence could have known of them. The employees carrying the rods were exposed to a hazard only when they stood near the edge holding the rods in place for the welder; another employee was briefly exposed as he leaned over the edge of the roof without a tied-off safety belt. Yet, the testimony demonstrates that Daniel fully expected its employees to tie off to the lugs when exposed to such a hazard. In this regard, Chairman Rowland does not consider it sufficient, as the majority does, to simply note the number of employees who were not tied off while exposed to fall hazards during the inspection. To intelligently determine whether Daniel could have known of the violations with the exercise of reasonable diligence, one must compare the number of employees who were not tied-off with the number who were tied off during the inspection and on other similar occasions; one must also consider Daniel's efforts to ensure that they did so. The judge found that "Daniel instructed its employees to tie off their safety belts at elevations of over 10 feet, that this rule was adhered to, that periodic inspections and reports thereon were made by supervisory personnel . . . and that [Daniel] instituted and conducted a good safety program." (Footnote omitted.) Daniel's project manager testified that "[w]hen I visited the roof, the men were always tied off." The welder and a rod carrier testified that they tied off to the lugs when they were close to the edge of the roof. Chairman Rowland would also point out that the proper inquiry here is whether the Secretary has shown knowledge of the violations by Daniel, and not whether Daniel has made out the unpreventable employee misconduct defense. See Daniel Construction Co., 81 OSAHRC 107/D2, 10 BNA OSHC 1254, 1257-8 n.3, 1981 CCH OSHD P25,840, p. 32,328 n.3 (No. 80-1244, 1981). Inasmuch as the Chairman is not convinced that the Secretary has shouldered his burden as to those few instances where employees were exposed to a fall hazard, he would not find a violation.

[*12]

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Finally, we conclude that the Secretary correctly characterized the violation as serious. Section 17(k) of the Act, 29 U.S.C. 666(j), states:

[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.

Both compliance officers testified that serious bodily harm could result from a 26 foot fall. As to knowledge, we conclude for the reasons stated above that Daniel knew or, with the exercise of reasonable diligence, could have known of the violative conditions. Accordingly, we conclude that Daniel committed a serious violation of section 1926.28(a).

II

Item 1 of citation 1, as amended in the complaint, alleged that Daniel committed an other than serious violation of section 1926.102(a)(1) by failing to provide [*13] a welder's assistant with appropriate eye protection equipment as specified in Tables E-1 and E-2 and required by sections 1926.102(a)(5) and (b)(1). Section 1926.102(a)(1) requires that employees be protected when exposed to potential eye or face injury. Section 1926.102(a)(5) requires the employer to use Table E-1, entitled "Eye and Face Protection Selection Guide," as a guide when selecting goggles or spectacles to protect the eyes and face. Section 1926.102(b)(1) states that Table E-2, entitled "Filter Lens Shade Numbers for Protection Against Radiant Energy," "shall be used as a guide for the selection of the proper shade numbers of filter lenses or plates used in welding." n5

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n5 1926.102 Eye and face protection.

(a) General. (1) Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.

* * *

(5) Table E-1 shall be used as a guide in the selection of face and eye protection for the hazards and operations noted.

* * *

(b) Protection against radiant energy -- (1) Selection of shade numbers for welding filter. Table E-2 shall be used as a guide for the selection of the proper shade numbers of filter lenses or plates used in welding. Shades more dense than those listed may be used to suit the individuals needs.

[*14]

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At the time of the inspection, a welder and his assistant were installing a railing along the edge of the roof of the warehouse. The welder used a 20 ampere welding machine with a 1/8 inch electrode to weld angle uprights onto steel rods that were 1/2 inch in diameter and 12 feet long. The welding operation consisted of two stages. During the first stage, called "tacking" or "spot welding," a temporary weld was used to hold the rod in place so that the second stage, a permanent weld, could be applied. During spot welding, the assistant held the rod in place for the welder. The assistant stood approximately 1 foot away from the welder and was instructed to look away from the spot being welded. After the spot weld was completed, the welder instructed the assistant to withdraw from the area while the permanent weld was made.

Daniel argues that lens shade number 10 is not required and not necessary to protect the eyes of the welder's assistant because he was not engaged in the actual welding operation. Further, it argues that the words of sections 1926.102(a)(5) and (b)(1) "shall be used as a guide" [*15] indicate that Tables E-1 and E-2 are merely advisory. The judge rejected these arguments, concluding that the welder's assistant was exposed to an operation that presented potential eye injury and that under Table E-2 a welding mask with a filter shade number 10 was required to prevent injury from radiation agents. The judge held that since the welder's assistant was not wearing lens shade number 10, Daniel failed to comply with section 1926.102(a)(1). For the following reasons, we affirm the judge.

There is no question here that the light radiation from the welding operation presented a potential for eye injury within the meaning of section 1926.102(a)(1). The primary issue here is whether the welder's assistant was protected from the radiation in accordance with the standard. The assistant welder was standing only one foot away from the welder. He was wearing safety glasses that had lens shade number 2.5, but lacked side shields. Two expert witnesses presented conflicting testimony as to whether a number 2.5 lens shade would protect the eyes of an employee while looking directly at the spot weld with the welding equipment set at 20 amps. However, Table E-2 makes clear that [*16] during shielded metal-arc welding using 1/8-inch diameter electrodes, filter lenses with at least shade number 10 are to be used. In addition, the Secretary's expert gave unrebutted testimony that if the assistant welder were to turn his head, the radiation could penetrate the corner of the assistant's eye because his spectacles lacked side shields. Table E-1 indicates that unless the welding operation presents a "limited hazard" -- and there is no claim or indication that this operation did -- spectacles of employees engaged in spot welding are to have side shields. We therefore conclude that the assistant was exposed to radiation agents and was inadequately protected from possible injury.

Daniel argues, however, that section 1926.102(a)(1) merely requires that eye protection be provided and does not specify which lens shade number is appropriate. We disagree. Section 1926.102, when read as a whole, apprises an employer of the proper lens shade to be used. Tables E-1 and E-2 of section 1926.102(a)(5) and (b)(1) inform Daniel of what section 1926.102(a)(1) requires for adequate protection. Daniel argues, however, that the tables are merely advisory. We reject that argument. [*17] We agree with Judge Harris that sections 1926.102(a)(5) and (b)(1) make it mandatory to refer to the tables to select the type of protector and the minimum shade of filter. n6 Sections 1926.102(a)(5) and 1926.102(b)(1) state that Tables E-1 and E-2 respectively "shall be used as a guide . . . ." The word "guide" signifies not that the tables are advisory, but that they will guide the employer to the appropriate equipment for listed operations. We also reject Daniel's argument that section 1926.102(a)(1) is inapplicable to welders' assistants. The standard applies by its terms to "employees" exposed to radiation hazards. It draws no distinction between welders and helpers. Accordingly, we affirm the judge's finding of an other than serious violation of section 1926.102(a)(1).

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n6 Chairman Rowland does not believe that sections 1926.102(a)(5) and (b)(1) make compliance with Tables E-1 and E-2 mandatory. He believes that in common usage the word "guide" signifies something less than a mandatory requirement. See Jim Walter Resources, Inc., 2 BNA MSHC 1489, 1981 CCH OSHC P25,759 (1981). Accordingly, the Chairman would remand for findings on whether Daniel provided protection for the eyes and face required under section 1910.102(a)(1).

[*18]

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III

Item 2 of citation 1 alleged an other than serious violation of section 1910.219(d)(1) for failure to guard the pulley of an alligator shears. n7 Item 1 of citation 3 alleged that Daniel committed a serious violation of section 1910.212(a)(3)(ii) for failure to guard the point of operation of two alligator shears. n8 Daniel argues on review, as it did before the judge, that these items should be vacated because the cited general industry standards may not be applied in the face of applicable specific construction standards in section 1926.300(b). n9 We agree.

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n7 1910.219 Mechanical power-transmission apparatus.

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(d) Pulleys -- (1) Guarding. Pulleys, any parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standards specified in paragraphs (m) and (o) of this section. Pulleys serving as balance wheels (e.g., punch presses) on which the point of contact between belt and pulley is more than six feet six inches (6 ft. 6 in.) from the floor or platform may be guarded with a disk covering the spokes.

n8 1910.212 General Requirements for all machines.

(a) Machine guarding.

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(3) Point of operation guarding.

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(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefore, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

n9 1926.300 General requirements.

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(b) Guarding. (1) When power operated tools are designed to accommodate guards, they shall be equipped with such guards when in use.

(2) Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or other reciprocating, rotating or moving parts of equipment shall be guarded if such parts are exposed to contact by employees or otherwise create a hazard. Guarding shall meet the requirements as set forth in American National Standards Institute, B15.1-1953 (R1958), Safety Code for Mechanical Power Transmission Apparatus.

[*19]

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Section 1910.12(a) states that Part 1926 applies to "every employee engaged in construction work." n10 It is undisputed that Daniel was engaged in construction work. Section 1910.5(c)(1) provides that a specifically applicable standard "shall prevail over any different general standard which might otherwise be applicable to the same condition. . . ." n11 We therefore look to Part 1926 to determine whether there are standards specifically applicable to the cited conditions. See Western Waterproofing, Inc., 79 OSAHRC 50/C13, 7 BNA OSHC 1499, 1501-2, 1979 CCH OSHD P23,692, p. 28,727 (No. 14523, 1979). n12

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n10 1910.12 Construction work.

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(a) Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

n11 1910.5 Scope and purpose.

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(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. For example, 1501.23(c)(3) of this title prescribes personal protective equipment for certain ship repairmen working in specified areas. Such a standard shall apply, and shall not be deemed modified nor superseded by any different general standard whose provisions might otherwise be applicable, to the ship repairmen working in the areas specified in 1915.23(c)(3).

n12 We note that Daniel was cited for violations of the general industry standard before the Secretary published Program Directive No. 200-88. The directive identified those general industry standards that the Secretary will apply to construction work. The list of the applicable standards has been published at 44 Fed. Reg. 8577 (1979).

[*20]

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As to the allegedly unguarded pulley, Daniel correctly argues that section 1926.300(b)(2) is specifically applicable. The standard requires that "pulleys . . . shall be guarded if such parts are exposed to contact by employees or otherwise create a hazard." Part 1926 also contains a section applicable to the points of operation of the two alligator shears. Section 1926.300(b)(1) requires that all power-operated tools designed to accommodate guards be equipped with such guards when in use. While this standard is not as stringent as section 1910.212(a)(3)(ii), it does specifically apply to the guarding of these machines.

In this regard, we do not share Judge Harris' view that section 1926.300(b) applies only to hand-held, hand- and power-operated tools described in Subpart I, which contains section 1926.300. Section 1926.300 is, as its title and location signify, generally applicable to all tools covered by Subpart I. While some of the requirements of Subpart I are expressly limited to hand-held tools, others are not. Compare sections 1926.303(c) and (d) ("bench mounted abrasive wheels") and [*21] section 1926.304(a) ("fixed power driven woodworking tools") with sections 1926.301 and 1926.302 (hand-held tools). If Subpart I were limited to hand-held tools, the narrow focus of these latter sections would be unnecessary. We therefore conclude that Daniel should not have been cited under sections 1910.219(d)(1) and 1910.212(a)(3)(ii). Inasmuch as neither party raises any other issue, we vacate item 2 of citation 1 and item 1 of citation 3. n13

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n13 Commissioner Cottine agrees that the construction machine guarding standards published at 29 C.F.R. 1926.300(b)(1) and (b)(2) are specifically applicable to the cited conditions and, therefore, take precedence over the cited general industry standards. However, in his view, the record establishes noncompliance with the applicable construction standards and the pleadings should be amended to conform to the evidence under Rule 15(b) of the Federal Rules of Civil Procedure. The record establishes that: (1) the cited general industry standards and the applicable construction standards contain the same requirements; (2) Daniel placed the applicability of the construction standards in issue; (3) all issues relevant to violations of the construction standards have been tried by the implied consent of the parties; (4) Daniel had a fair opportunity to defend against the merits of the amended charges; and (5) no additional evidence could have been offered if the case had been tried under the construction standards. Accordingly, under the terms of Fed. R. Civ. P. 15(b),

[d]espite "the failure of complainant to request an amendment," we have "no course but to amend the citation" . . . . Southwestern Bell Telephone Co., 78 OSAHRC [100/D8], 6 BNA OSHC 2130, 2133, 1978 CCH OSHD P23,187 at p. 28,033 (No. 14761, 1978).

The Rogers Manufacturing Co., 79 OSAHRC 67/E2, 7 BNA OSHC 1617, 1620, 1979 CCH OSHD P23,800 at p. 23,878 (No. 76-896, 1979). See Texaco Inc., 80 OSAHRC 68/A2, 8 BNA OSHC 1677, 1980 CCH OSHD P24,574 (No. 77-2014, 1980); Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979); Rodney E. Fossett, d/b/a Southern Lightweight Concrete Co., 79 OSAHRC 92/D2, 7 BNA OSHC 1915, 1979 CCH OSHD P23,989 (No. 76-3944, 1979); John & Roy Carlstrom, d/b/a Carlstrom Brothers Constr., 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD P23,155 (No. 13502, 1978).

[*22]

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IV

Daniel raises other contentions that prior cases have resolved adversely to it.

Daniel first contends that violations of the standards in 29 C.F.R. Part 1926 cannot be found because these standards were invalidly promulgated under the Contract Work Hours and Safety Standards Act, 40 U.S.C. 327-333 ("the Construction Safety Act"), n14 and thus were improperly adopted as established federal standards under section 6(a) of the Act. n15 Daniel does not contend that there was any deficiency in the procedure by which the Secretary adopted the Construction Safety Act standards under the Occupational Safety and Health Act.

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n14 Daniel argues that these standards were invalidly promulgated because the Secretary made them effective fewer then 30 days from their publication without an adequate statement of good cause as required by section 4(c) of the Administrative Procedure Act, 5 U.S.C. 553(d).

n15 Section 6 of the Act, 29 U.S.C. 655, contains procedures the Secretary must follow in promulgating standards under the Act. Within two years of the Act's effective date, the Secretary was authorized to summarily promulgate established federal standards and national consensus standards. Section 6(a) of the Act, 29 U.S.C. 655(a). An established federal standard is defined as a standard "established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act." Section 3(10) of the Act, 29 U.S.C. 652(10). The Secretary made the Construction Safety Act standards effective under the Act pursuant to his authority to adopt established federal standards. 29 C.F.R. 1910.11 and 1910.22.

[*23]

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The Commission will not entertain challenges to the standards in Part 1926 when such challenges question the procedures followed in the adoption of the standards under the Construction Safety Act. Daniel Construction Co., 81 OSAHRC 41/22, p BNA OSHC 1854, 1856, 1981 CCH OSHD P25,385, p. 31,623 (No. 12525, 1981), appeal docketed, No. 81-1714 (10th Cir. June 25, 1981). This recent holding was based on our decision in General Motors Corp., 81 OSAHRC 13/C10, 9 BNA OSHC 1331, 1981 CCH OSHD P25,202 (No. 79-4478, 1981), in which we held that we will not consider challenges to the validity of standards based on alleged procedural deficiencies in the manner in which the ancestor standards were adopted under other statutes.

Daniel raises three constitutional issues. First, it argues that section 1926.28(a) is unenforceably vague. The Commission has held section 1926.28(a) to be valid and enforceable when, as here, a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard [*24] warranting the use of personal protective equipment. S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1263, 1979 CCH OSHD P23,480, p. 28, 436 (No. 15855, 1979), rev'd, 659 F.2d 1273 (5th Cir. 1981).

Second, Daniel argues that it has been denied its seventh amendment right to a jury trial. The Supreme Court in Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977), ruled that employers do not have a right to a jury trial in our proceedings.

Third, Daniel argues that the judge erred in denying its motion to suppress the evidence obtained during the inspection on the ground that the inspection procedures set forth in section 8(a) of the Act, 29 U.S.C. 657(a), violate the fourth amendment of the United States Constitution. The Supreme Court has held that the Act's inspection procedure violates the fourth amendment to the extent that it authorizes warrantless inspections without consent. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). We have, however, held that "the fourth amendment principles announced in Barlow's . . . are without retroactive remedy." Meadows Industries, Inc., 79 OSAHRC 74/F2, 7 BNA OSHC 1709, 1712, 1919 CCH OSHD P23,847, [*25] p. 28,952 (No. 76-1463, 1979). Inasmuch as the inspection in this case, which was conducted on November 24, 1975, predates Barlow's, Daniel's request to suppress the evidence is rejected. See, e.g., Bomac Drilling, 81 OSAHRC 45/A2, 9 BNA OSHC 1681, 1699, 1981 CCH OSHD P25,563, p. 31,555 (Nos. 76-450 & 76-2131, 1981); Daniel International Corp., 80 OSAHRC 25/A2, 8 BNA OSHC 1142, 1147, 1980 CCH OSHD P24,326, p. 29,625 (No. 77-3121, 1980), aff'd in part, rev'd in part on other grounds, 656 F.2d 925 (4th Cir. 1981).

V

Section 17(j) of the Act, 29 C.F.R. 666(i), requires that the Commission, in determining an appropriate penalty, give due consideration to the following criteria: the size of the employee's business, the gravity of the violation, the good faith of the employer and the history of previous violations. Daniel is a large company, employing about 2,500 people; it has previously been found to have committed both serious and other than serious violations of the Act; and the instances of violations here demonstrate that the safety program was not adequately enforced.

With respect to the section 1926.28(a) violation, we conclude that it is likely that [*26] serious injury could result from eight employees' exposure to a 26 foot fall from the unprotected edge of the roof. The gravity of this violation taken in conjunction with the other factors, previously discussed, justifies assessment of the $800 penalty proposed by the Secretary of Labor.

We affirm the judge's assessment of a $40 penalty for Daniel's failure to comply with section 1926.102(a)(1). We conclude that the gravity of the violation is relatively low. Only one employee was briefly exposed to the hazard and his exposure was reduced by Daniel's policy of instructing welders to require that welder's assistants to turn their heads away from the spot welding operation and to withdraw from the area during the permanent welding operation. Moreover, Daniel demonstrated a good faith belief that a 2.5 lens shade was adequate.

Accordingly we affirm item 1 of citation 2 and assess a penalty of $800. We affirm item 1 of citation 1 and assess a penalty of $40. We vacate item 2 of citation 1 and item 1 of citation 3.

SO ORDERED.