PACIFIC GAS & ELECTRIC COMPANY

OSHRC Docket No. 2821

Occupational Safety and Health Review Commission

March 20, 1975

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a report filed by Judge Robert N. Burchmore.   Complainant, alleging a single serious violation, contends that Pacific Gas & Electric Co. ("PG & E") failed to comply with occupational safety standards published at 29 C.F.R. 1926.955(a)(3) n1 and (a)(4). n2 Judge Burchmore vacated the citation and the proposed $600 penalty. For the reasons set forth below we reject the report and affirm the citations.

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n1 The standard provides:

Where poles or structures may be unsafe for climbing, they shall not be climbed until made safe by guying, bracing, or other adequate means.

n2 The standard provides:

Before installing or removing wires of cable, strains to which poles and structures will be subjected shall be considered and necessary action taken to prevent failure of supporting structures.

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The relevant facts are undisputed.   In July 1971, PG & E determined [*2]   that its wooden utility pole located at 2190 Old Almaden Road, San Jose, California, was in a rotted condition.   A work order issued for its replacement and on March 1, 1973, a crew led by subforeman Brighter undertook the job.   A new pole had been installed next to the rotten one.   The work to be done by Brighter's crew included transferring three primary conductors from the rotted pole to the new pole, replacing two secondary conductors by a duplex conductor and installing one new transformer in place of two old transformers. The old pole leaned noticeably from the perpendicular.   A head guy ran from   the pole to another pole located across the road, a PG & E down guy was located in the opposite direction, and a cable television down guy secured halfway up the pole ran parallel to the street.   Both down guys were slack.

Before initiating work Brighter held a tailboard conference at which he issued instructions that the rotted pole be tied up before it was climbed. He repeated the instruction to each of two experienced linemen, Kilmer and Gomez, whom he assigned to climb and work on the pole. Kilmer apparently climbed the pole because Brighter testified that he reissued [*3]   the instruction to Kilmer as he "was starting to go up the pole again." About 20 minutes later as Gomez started to ascend the pole Brighter instructed him not to forget to tie the pole up because, as Brighter said, "I don't think Kilmer did tie the pole up." Thereafter, Brighter remained on the ground passing tools up to Kilmer and Gomez.   He did not in any manner determine whether his instructions had been followed.   And nothing else was done to support the pole.

After working on the old pole for approximately an hour, the men had only one remaining primary conductor to transfer to the new pole. Mr. Brighter then issued an order that the last conductor not be transferred until the pole had been secured.   He then went to a truck to obtain more line.   While he was doing this the employees continued to disconnect the final conductor. The pole immediately snapped at the base and fell.   Both employees who had been working on it were killed.

As a threshold issue PG & E argues that it was only performing maintenance work and that in view of the provisions of 29 C.F.R. 1926.950(a) such work is not covered by the standards including those cited herein prescribed by Subpart V of the Construction [*4]   Safety Standards.   Paragraph 950(a), in pertinent part, provides as follows:

The . . . standards contained in this Subpart V shall apply to the construction of electric transmission and distribution lines and equipment.

(1) As used in this Subpart V the term "construction" includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing transmission and distribution lines and equipment.

  The Secretary argues that the provisions of 29 C.F.R. 1910.12(a) and (b) enlarge the scope of application of the work standards appearing in Subpart V so as to make them apply to alteration and repair work.   Alternatively, he argues that the work performed by PG & E was "alteration, conversion and improvement of existing transmission and distribution lines and equipment" within the meaning of 1926.950(a).

There is merit to the argument that maintenance work is not within the purview of Subpart V (29 C.F.R. 1910.5(c)).   However, the work performed in this case was "improvement" work since PG & E was replacing existing lines and transformers with equipment that reduced the number of lines and transformers [*5]   needed to perform the same job.   Accordingly, we find the work performed herein to be construction within the meaning of 1926.950(a) and the cited standards are therefore applicable.

On the facts, Judge Burchmore found no violation of 1926.955(a)(3).   Commenting that "the thing speaks for itself," he reasoned that the old pole could not have been unsafe for climbing since it supported both workmen for about an hour.   The standard, however, is written in precautionary terms.   It prohibits the climbing of poles which "may be unsafe" not just those which ultimately prove unsafe. There can be no doubt that on March 1, 1973, conditions indicated that the old pole may have been unsafe for climbing. It leaned noticeably from the vertical and two of the guys were slack.   Nor is there any doubt that Brighter knew the pole was unsafe for climbing. Nevertheless, with knowledge that his instructions had not been followed, he let Kilmer and Gomez ascend the pole. Paragraph 955(a)(3) was thereby violated.

Moreover, Kilmer and Gomez were allowed to work on the pole when it had not been supported.   And Brighter knew this to be the case otherwise there would have been no need for him to issue [*6]   the instruction that he did when he went to the truck.   Judge Burchmore concluded that these facts reflect a violation of Paragraph 955(a)(4).   However, he concluded that the citation should be vacated.   He reasoned that the reason action was not taken to secure the pole while the conductors were being removed was due to employee misconduct in direct violation of   Brighter's last given order.   In the circumstances, he concluded PG & E could do nothing more to prevent the violation.

We are not persuaded.   The fact is Brighter had given the instruction to secure the pole on a number of occasions.   He was well aware that the instruction had not been followed.   In these circumstances there can be no reason to believe that merely because the instruction was again repeated that it would now be obeyed.   Certainly, having Brighter's knowledge, PG & E could have done more to prevent the violation.   Paragraph 955(a)(4) was violated.

In the circumstances there can be no question that the violations of both paragraphs are serious.   As the facts clearly demonstrate, the most likely consequence of a failure of the unsupported pole was death or serious physical harm.   Moreover, PG & E [*7]   having Brighter's knowledge that the pole was unsupported, knew of the presence of the violation.   Martin Iron Works, Inc., Dkt. 1690, BNA 2 O.S.H.C.    , CCH E.S.H.G. para. 19,219 (R.C., January 17, 1975); Pecosteel-Arizona, Dkt. 1930, BNA 2 O.S.H.C. 1506, CCH E.S.H.G. para. 19,223 (R.C., January 22, 1975).

The Secretary proposed a penalty of $600 for the combined serious violation. Having considered the provisions of 29 U.S.C. 666(i), we find the proposed penalty appropriate.   The high gravity is substantiated by the unfortunate consequences of the violations.   PG & E's great size is undeniable; in 1972, PG & E had 25,000 employees, operating revenues of $1.35 billion, and total assets of approximately $5 billion.   PG & E's safety history has been average; six inspections have resulted in three uncontested non-serious citations.   On the other hand, PG & E has an outstanding safety program and its good faith is not questioned.

Accordingly, we reject the judge's report, affirm the serious citation, and assess a penalty of $600.   It is so ORDERED.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: This decision was properly decided by the Judge and his order should be affirmed.   [*8]  

The Judge correctly concluded that no violation had been established because of "[t]he fact that the men were able to work an hour and a half on the old pole without incident, and the   further fact that the pole snapped and broke when the last conductor was removed from it, [which] demonstrates at once that it was safe under paragraph (3) to climb the pole while it was still guyed and supported by the wires."

In reversing, my colleagues hold that the pole may have been unsafe for climbing because it leaned from the vertical and two of the guy wires were slack.   Moreover, they say Brighter knew the pole was unsafe. n3

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n3 This raises the question as to whether Brighter is being accused of knowingly ordering the linemen to climb an unsafe pole.

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If the evidence is considered, reversal on these grounds cannot be substantiated by a preponderance thereof.   Secretary v. Armor Elevator Co., 5 OSAHRC 260 (1973). The pole (50 feet in height buried 6 1/2 feet into the ground) was leaning "off center" anywhere   [*9]   from 0 to 5 feet. Understandably, no opinion was given that this alone would make it unsafe for climbing Nor was it unsafe because of slack in the guys. The lead opinion failed to consider the unrebutted testimony of Brighter indicating the guys did provide support for the pole. Furthermore, the record is noticeably void of evidence bearing on Brighter's alleged belief or knowledge that the pole was unsafe. n4

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n4 A more reasonable conclusion would be that Brighter as well as Kilmer and Gomez, each with many years of experience as linemen involved in this type of work, thought the pole was safe for climbing.

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Another reason why the Judge found no violation was that respondent had done all that could be reasonably expected of it in fulfilling its duty under this regulation.

Again, my colleagues disagree.   For what reasons this time?   They state that Brighter gave the instruction to secure the pole to Gomez and Kilmer a number of times, and from this they infer that he knew the instruction was not followed and that [*10]   the pole was therefore unsupported; and, they then conclude that respondent, having Brighter's knowledge, could have done more to prevent this infraction. n5

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n5 The absence of any enumeration of alternative preventive steps is noteworthy in this regard.

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The well-established rule of evidence in administrative hearings is that the proponent of the rule or order has the burden to   bring forth facts in proof thereof.   5 U.S.C. §   556; Davis, 2 Administrative Law Treatise, §   14.14 at 326 (1958).   That rule has been specifically incorporated into the Act under which this proceeding was conducted.   29 U.S.C. §   659(c).   In addition, our Rules of Procedure have placed the burden of proof in all proceedings commenced by the filing of notice of contest with complainant.   29 C.F.R. §   2200.73.

Part of that burden is to show that the employer knew of the existence of the alleged violation or could have known with the exercise of reasonable diligence.   Secretary v. The Mountain States Telephone & Telegraph Co.,   [*11]   2 OSAHRC 168 (1973). 29 U.S.C. §   666(j) provides that unless the employer has knowledge, no serious violation may exist. n6

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n6 The Ninth Circuit has recently ruled this knowledge requirement must also be proved to establish a nonserious violation.   Brennan v. Occupational Safety and Health Review Commission, 511 F.2d 1139 (9th Cir., 1975).

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There is nothing in the record here to show Brighter knew or should have known that his instruction to tie off was not being followed. n7 Knowledge cannot be imputed to the respondent simply by proving an unsafe condition existed or that the employees herein violated the Act.   As was stated in Brennan v. Occupational Safety and Health Review Commission, note 6 supra:

Nothing in the Act, however, makes an employer an insurer or guarantor of employee compliance therewith at all times.   The employer's duty . . . must be one that is achievable [cite omitted].   We fail to see wherein charging an employer with a . . . violation because of an . . . act of an employee, of which [*12]   the   employer had no knowledge and which was contrary to the employer's instruction, contributes to achievement of the cooperation sought by the Congress.   Fundamental fairness would require that one charged with . . . violation be shown to have caused, or at least to have knowingly acquiesced in, that violation . . . .   Not requiring [a showing of this requisite knowledge] would in effect make the employer strictly and absolutely liable for all violations and would render meaningless the statutory requirement for employee compliance, 29 U.S.C. §   654(b).

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n7 To the contrary, the testimony of Brighter indicates he did not know.

A.   I don't know whether he tied it up or not.

Q.   . . . You never saw the two poles tied together?

A.   That, I can't tell you, because there were three -- four hand lines up there . . . .   I can't tell you whether it was tied or not.

Q.   You did not know whether or not the two poles had been tied together?

A.   Well, I took it for granted he had tied it, because the rope -- a rope, they had it around the pole, the tag line.

Q.   Did you see at any time Kilmer or Gomez actually tie the two poles off?

A.   I know I seen [sic] them send the rope across and back again.   Whether he tied it, I don't know.

  [*13]  

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By finding the respondent in violation, the Commission is in effect making it an absolute insurer or guarantor.   The evidence clearly establishes it had no knowledge or reason to believe Gomes and Kilmer would disobey the company's accident prevention rules and Brighter's orders to tie the pole. Even his order to stop work (the removal of the last primary conductor which caused the snapping and felling of the pole resulting in their deaths) was ignored.   This willful disobedience, unknown to the respondent and contrary to all preventive measures taken herein, was not within its capability of prevention.

I am convinced the Judge properly found no violation and that the Commission is in error in overruling that finding.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE: By citation issued April 6, 1973, the Secretary of Labor charges that on March 1, 1973, the respondent committed a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq ) in that respondent failed to comply with the regulations provided in 29 C.F.R. 1926.955(a)(3)   [*14]   and (4). n1 A penalty in the amount of $600 is proposed pursuant to an amendment of the notification of proposed penalty which was allowed at the hearing.

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n1 The regulations provide in paragraph (3) that "Where poles or structures may be unsafe for climbing, they shall not be climbed until made safe by guying, bracing, or other adequate means." Paragraph (4) requires that "Before installing or removing wire or cable, strains to which poles and structures will be subjected shall be considered and necessary action taken to prevent failure of supporting structures."

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  Timely notice of contest was filed and the proceeding was assigned to the undersigned judge for hearing and determination.   A prehearing conference was held at San Francisco on August 16, 1973 and the hearing was held at San Francisco on September 7, 1973.   Briefs have been submitted by the parties.

A threshold issue is whether the cited regulations apply in this case, and that issue turns upon the question whether the work being done was "construction"   [*15]   within the meaning of the regulations. The facts are undisputed, that respondent was engaged in replacing a rotted, wooden pole on one of its electric lines with a new pole of the same type, and that the structure was being changed slightly by replacing the original, wooden crossarms with triangular shaped, metal crossarms which permitted the wire conductors to be spread apart so as to prevent their being blown together in a windstorm.   Also, some new type, duplex and triplex conductors were being used to replace spans of single conductors.

The cited regulations are contained in Subpart V of Part 1926, and Subpart V also contains a definition of construction, as follows, 1926.950(a)(1):

As used in this Subpart V the term "construction" includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing electric transmission and distribution lines and equipment.

Part 1926 was originally promulgated to provide standards for employers engaged in federal construction work. In adopting those standards pursuant to section 6 of the Occupational Safety and Health Act, the Secretary broadened the definition [*16]   of construction n2 by providing in 29 C.F.R. 1910.12:

(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.

(b) Definition. For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating.   See discussion of these terms in §   1926.13 of this title.

It is to be noted that the 1910.12 definition embraces "repair" and that it covers both new and existing structures.   However, both of the quoted definitions omit any reference to "maintenance." The definitions therefor require a decision in each case as to whether the work being done comes under the broad definition of construction (including alteration, conversion, improvement and repair) or whether it is   [*17]   mere maintenance.

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n2 Respondent urges that 1926.950(a)(1) takes precedence over 1910.12(b) as a definition, citing 1910.5(c)(1) which provides that a particular, specific standard shall prevail over a general one.   That argument by its terms is overcome by the fact that the 1910.12(b) standard was expressly prescribed to govern the adoption of the 1926 standards.

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In this case it is my opinion that the work was within the broadened definition of construction because it involved the replacing of a pole and therefor constituted the repair of the electric line.   Webster's Seventh New Collegiate Dictionary, G. & C. Merriam Company, 1969 edition, defines "repair" as "to restore by replacing a part or putting together what is torn or broken." Here respondent was replacing a part of the line, i.e. the rotted pole. In adopting this view, I am cognizant of respondent's argument that restore means "to put or bring back into existence or use," also citing Webster's.   As respondent points out, the electric utility system was [*18]   not out of service at the time the work was being done.   However, Webster's definition of "restore" also recognizes the sense "to bring back to a former, original or normal condition" and that is precisely what was being done here: replacing a rotted pole to bring the line back to a normal condition.   I conclude that the construction regulations apply.

Turning now to the merits of the case, it is undisputed that, on March 1, 1973, respondent assigned a crew consisting of subforeman Brighter, and linemen Chavez and Finley to transfer the overhead conductors from the rotted pole to a new pole which had been set adjacent to it several days beforehand.   The two poles were about three feet apart at the base, but due to an angle in the old pole they were from four to eight feet apart at the top.

  Brighter determined that the work could not be completed by a single crew so he placed a call for assistance.   Another crew, consisting of subforeman Gomez, lineman Kilmer and driver Burdick was assigned to the job.   Gomez and Kilmer were both journeyman linemen with 9 years and 5 years experience respectively.   Brighter had 15 years experience.   On arrival of the second crew, Brighter [*19]   held a "tailboard conference" with members of both crews at which he explained the work involved and cautioned the men to tie up the poles to prevent the rotted pole from falling.   It was decided that Gomez and Kilmer would climb the old pole while Chavez and Finley would climb the new one, with Brighter handling the ground work and Burdick operating the boom on his truck to assist in the transfer of the conductors.

At the tailboard meeting, Brighter gave instructions to Kilmer and Gomez, who were to climb and work on the rotted pole, to tie off the old pole to the new pole. Kilmer climbed the old pole first.   When he was starting to climb the pole, Brighter told him again, "Make sure you tie the pole up." Approximately 20 minutes after Kilmer ascended the rotted pole, Gomez started to climb it, at which time Brighter said, "Gomez don't forget to tie the pole up." The work progressed for approximately 40 to 70 minutes after Gomez climbed the old pole. During this time Brighter was standing at the base of the two poles passing up equipment and taking equipment down.   Brighter did not ascertain with certainty that the old pole had been tied off to the new pole. He had given Kilmer [*20]   a rope with which to tie the old pole off, and he observed Kilmer take the rope across to the new pole and bring it back once, ". . . but it was hanging down on one side.   I don't know whether he tied up or not." Then, an hour to an hour and a half after the work commenced, Brighter decided that the poles should be tied off at a lower level on the poles than he originally contemplated.   He told Gomez and Kilmer not to transfer the last of three conductors until he obtained a rope for that purpose, and started back to his truck to get a rope. However, Gomez acted contrary to instructions and continued to disconnect the last conductor; as this was done the pole broke at the base and fell, causing fatal injuries to Kilmer and Gomez.

  It is quite obvious from the above facts that there was a violation of paragraph (4) of the regulations, but not of paragraph (3).   That is to say the thing speaks for itself.   The fact that the men were able to work for an hour and a half on the old pole without incident, and the further fact that the pole snapped and broke when the last conductor was removed from it, demonstrates at once that it was safe under paragraph (3) to climb the pole [*21]   while it was still guyed and supported by the wires and, on the other hand, that the necessary action to prevent failure of the structure was not taken as required by paragraph (4) before removing the wires. The only substantial question presented is whether the respondent fulfilled its duty under the regulation so as to be excused from responsibility for the violation which was committed by the affected employees.

As already stated, respondent's authorized representative, Brighter, several times cautioned the men and specifically directed the tying off of the old pole. At the very last, he issued a direct order to hold up on the removal of the last wire so that he could go get rope and tie off the pole himself.   It was the disobedience of that order which was the immediate cause of the accident.   Furthermore, the requirements of the regulations are substantially repeated in a book of company safety rules from which excerpts were introduced in evidence.   The employees are instructed in those rules, receive copies of them, and are required to do their work in accordance therewith.   It is the position of respondent that it did all that could reasonably be required of it to see that [*22]   the regulations were complied with, and that it should not be held responsible for the violation which its experienced employees committed, a violation both of company rule and instruction as well as of the regulation. Respondent relies upon the decision of the Commission in Secretary of Labor v. Hansen Brothers Logging, CCH Employment Safety and Health Guide, P15,258.

The Secretary argues that Brighter, as the respondent's authorized representative, should have made certain that the pole was secured before permitting any work to be done on it; it is the position of the Secretary that company rule and safety program, reinforced by repeated instructions of the experienced   linemen on the job and in the process of doing the work, is not enough.   The Secretary envisions the case as analagous to Secretary of Labor v. John B. Kelly, CCH Employment and Safety Health Guide P16,369.

Both Hansen and Kelly involved the disregarding of instructions by the affected employees, and the principle difference lies in the fact that the employer was held responsible in Kelly but not in Hansen. The two cases thus represent divergent views of the employer's   [*23]   responsibility, to the point of virtual irreconcilability, and this is well illuminated by the dissenting opinion of Chairman Moran in Kelly. Since that time, Hansen has most recently been followed by the Commission in its decision in Secretary of Labor v. Arizona Public Service Co., CCH Employment Safety and Health Guide P15,131. n3 I conclude that it should be followed here.   Accordingly, I hold that on the facts of this case, respondent completely fulfilled its duty as an employer and that it is not responsible for the violation committed by the affected employees.   While it is true that Brighter, who was present at all times and in a position to observe, failed to make certain that the pole had been tied off, it is also true that he finally and timelily ordered the work stopped until he could personally tie off the pole. In my opinion, he and the company had a right to expect obedience of that direct and immediate order.   Disobedience of it was beyond the reasonable capability of respondent to prevent.   The citation should, under all the circumstances, be vacated.

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n3 The decision of the Commission on review, which cites Hansen as authority, has not yet been reported.   It is dated October 18, 1973.

  [*24]  

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One more matter requires comment in this decision.   The citation now before the Commission is an amended citation under section 5(a)(2); the original citation was for violation of the general duty clause of 5(a)(1).   The obvious reason for the amendment was the difficulty which the Secretary experienced in determining whether the work being done constituted construction within the meaning of the regulation. That difficulty is further demonstrated by copious references which the parties have made on brief to the rule-making record, consisting of transcripts of meetings of the Construction Safety Advisory Committee and of that committee's Subcommittee on Power   Transmission and Distribution.   That record is of virtually no help in ascertaining whether the replacement of a rotted pole was intended to be considered as construction work. But it makes abundantly clear the difficulty involved in attempting to ascertain whether a particular work project is construction or maintenance.   Moreover, the very existence of the difficulty renders the test an unsatisfactory one for determining the applicability [*25]   of regulations. It is scarcely workable for an employer and an employee to engage in a labored analysis of the difference between maintenance and repair, and of the particular job requirements before them, in order to ascertain what regulation govern their conduct.   It is no more workable for the Secretary to engage in such analysis in order to know what regulations to cite, or whether to cite the general duty clause.

In addition to the difficulty which the regulations create with respect to ascertaining applicability, it is to be noted that it really does not matter substantially whether a citation is drawn under the particular regulation cited herein, or whether it is drawn under the general duty clause.   This is so because both of them are in general terms calling for the application of judgment.   The cited regulation is couched in terms no more definite or precise, and calling just as much for the exercise of judgment, as the general duty clause.   The operative standard of the regulation is "necessary action" to prevent a failure; the general duty clause with similar breadth prescribes freedom from "recognized hazards." In either case the employer must exercise judgment as to [*26]   what in particular must be done to fulfill its duty; neither the regulation nor the general duty clause prescribes specific guidelines with particulars.   This being so, it is difficult to see what difference it would make to the employer whether the citation was drawn under the regulation or under the general duty clause; in either case the decision must be based on all the facts and circumstances of the particular situation, rather than upon compliance with certain, structural specifications.

In my opinion, the Secretary should be permitted and admonished in such cases to draw his citations in the alternative, alleging violation either of the regulation or of the general duty clause.   Beyond that, the Secretary should further be admonished   to eliminate such general regulations in favor of operating under the general duty clause until some clear and particular guideline is devised and promulgated which does add something to the general prescription of 5(a)(2).   This would avoid the necessity for line distinctions as to what constitutes "construction" and it would avoid the pretense that the regulation adds anything to the general duty clause.

It is ORDERED that the citation [*27]   and notification of proposed penalty, as amended, be and the same are hereby vacated and that this proceeding be and the same is hereby discontinued.