BEALL CONSTRUCTION COMPANY

OSHRC Docket No. 557

Occupational Safety and Health Review Commission

February 21, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter arose upon citations for serious and non-serious violations and upon a notification for failure to abate previous violations all of which were issued by Complainant pursuant to the provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Complainant proposed an aggregate penalty assessment of $35,442. Thereafter, Judge Alan M. Wienman concluded that as to some of the allegations Respondent was in serious and non-serious violation of the Act and to such extent he affirmed Complainant's citations. He assessed an aggregate penalty of $1,572.50.

In making his assessments Judge Wienman made specific reference to Respondent's charge that Complainant was more interested in punishing than promoting industrial safety. He correctly noted that both parties were at fault. Respondent made repeated requests for extensions of an abatement period only to modify a materials hoist, but it never placed an order for modification equipment. Moreover, Respondent's devotion to safety is demonstrated on the record as being suspect [*2] whenever standards require the purchase of equipment. On the other hand we agree with the Judge that Complainant over-reacted to the situation. The penalties proposed herein greatly exceeded those proposed for like violations on a national basis. Nevertheless, Judge Wienman assessed the proposed penalties. Review was therefore directed. We have reviewed the record, and we adopt the Judge's decision to the extent that it consistent herewith. In so doing, we specifically adopt the Judge's disposition of the alleged violations, however, we do not agree with his reason n1 for vacating an allegation that Respondent violated 29 C.F.R. 1926.152(a)(1).

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n1 Judge Wienman vacated because Respondent had not been afforded an opportunity to accompany the Compliance Officer at the time he observed the alleged violation. Our subsequent decisions are dispositive of this issue. Chicago Bridge & Iron Company, BNA 1 O.S.H.R. 1086, CCH Employ. S & H. Guide para. 15, 416 (1973); Wright-Schuchart-Harbor Contractors, BNA 1 O.S.H.R. 1138, CCH Employ. S & H. Guide para. 15, 473 (1973); and Drake-Willamette Joint Ventures, BNA 1 O.S.H.R. 1181, CCH Employ. S & H. Guide para. 15, 655 (1973).

[*3]

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The standard requires that approved containers be used for the storage and handling of flammable and combustible liquids. Complainant's Compliance Officer observed three unapproved containers in the back of a pick-up truck parked near Respondent's worksite. The Compliance Officer did not inspect the cans to determine their contents. He merely assumed that they contained gasoline. Respondent's evidence was that it did not use the containers for either the storage or handling of gasoline, that two of the containers were empty, and that one container was half filled with a noncombustible fluid. We affirm Judge Wienman's vacation of this allegation for the reason that Complainant did not sustain his burden of proof. Armor Elevator Company, Inc.,

We now turn to the matter of the assessment of appropriate penalties. In this case the the factors of past history, good faith, and size run to all violations. Accordingly, out consideration of these three factors has application to all penalties assessed by our decision.

As is evident [*4] from the Judge's finding of mutual fault Respondent had received a prior citation. The earlier citation alleged eight non-serious violations of standards. It became a final order of the Commission by operation of section 10(a) of the Act. The record demonstrates that reinspection occurred because personnel of the Complainant's Omaha, Nebraska, area office believed Respondent had misused their services. Specifically, Respondent requested and received three extensions of an abatement date for the materials hoist violations on its representations that materials necessary for abatement were unavailable. n2 A Compliance Officer determined that Respondent had made only one inquiry concerning the needed supplies. He also determined that the supplies were available at the time he made his determination.

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n2 We would point out that the Omaha Area Director exceeded his authority by granting extensions after the first citation became a final order under section 10(a). The Commission alone has the power to modify its orders, and the authority for such extensions is given by section 10(c).

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Respondent had other conversations with the Omaha area office during the interval between inspections. During one such conversation Respondent indicated that it had a lighting problem and was having difficulty obtaining bulb guards. Respondent had not been cited for inadequate lighting nor for the failure to guard bulbs in the first citation. It indicated an awareness of the regulations requiring adequate lighting, and for bulb guarding; it knew that if it did not light it could be cited, and it knew that if it lighted and did not guard it could be cited. Respondent was of the impression that it was told to go ahead and light the workplace without guards. On reinspection Respondent was cited for both conditions.

The earlier violations had been abated by the time Complainant reinspected the workplace, however, new violations did exist. We have given due consideration to the unusual circumstances of this case. It is our considered opinion that on the facts Respondent should not be accorded a heavier penalty because of its prior history nor should the penalty be reduced on account of good faith. This [*6] is not to say that we find Respondent acted in bad faith; it is to say that the factors of prior history and good faith off-set each other. Accordingly, our assessments are made in accordance with the gravity of the violations as discussed hereinafter and in view of Respondent's size.

The evidence of record concerning Respondent's size is meager. Respondent was the general contractor for the erection of a federally funded project in Fremont, Nebraska. The project took 20 or more months to complete. While working on the Fremont project Respondent also had work in progress at many other locations. On these facts we conclude that Respondent is, at least, of medium size. We turn now to the gravity of the respective violations.

THE SERIOUS SCAFFOLDING VIOLATION

29 C.F.R. 1926.451(a)(1) & (i)(4) n3

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n3 The standards provides as follows:

(a) General requirements. (1) Scaffolds shall be erected in accordance with requirements of this section.

(i) (Swinging scaffolds)

(4) The roof irons or hooks shall be of mild steel or other equivalent material, or proper size and design, securely installed and anchored. Tiebacks of 3/4 inch manila rope, or the equivalent, shall serve as a secondary means of anchorage, installed at right angles to the face of the building, whenever possible, and secured to a structurally sound portion of the building.

[*7]

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On and for two or three days before January 18, 1972, Respondent's employees were washing down the exterior brick walls of a 12 story building which was being erected on the Fremont project. To this end they were employed on a swinging scaffold which was suspended from two outriggers located on the roof of the building. Wood beams were used for outriggers prior to a State inspection conducted on the 18th at which time steel I beams were substituted for the wood beams. Concrete blocks weighing about 500 pounds each were used to support the beams on their inboard ends. Tiebacks were not employed as a secondary means of anchorage. The scaffold had been operated to the 12th story.

Respondent was cited for a serious violation for failing to use tiebacks and for failing to use roof irons.

On these facts the gravity of the violation is moderate. The number of employees affected by the violation were low, and the period of exposure was relatively short. The concrete blocks reduced the likelihood of an accident, however, the scaffold could fall particularly during the time of use of the wooden [*8] outriggers. A fall from a height of 12 stories would almost certainly result in death. Under the circumstances a penalty of $300 is appropriate.

NON SERIOUS VIOLATIONS

HOUSEKEEPING - 29 C.F.R. 1926.25(a) & (b) n4

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n4 The standards provide as follows:

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept clean from work areas, passageways, and stairs, in and around buildings or other structures.

(b) Combustible scrap and debris shall be removed at regular intervals during the course of construction. Safe means shall be provided to facilitate such removal.

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Respondent was cited for a housekeeping violation in that it had allowed debris and construction materials to accumulate on three or four floors in the building. The debris and materials had accumulated to such extent that no passageways existed on the floors. Respondent admitted the violation. The record is silent concerning the number of employees exposed [*9] although it is admitted that some were exposed.

Complainant proposed a penalty of $212.50. We believe the proposal to be excessive. A tripping hazard is involved. In the event of an accident an injury might be as inconsequential as a bruise or as consequential as a concussion. On the other hand the conditions were observed on only three of four floors. Under the circumstances, we conclude that a penalty of $100 is appropriate.

FIRE PROTECTION PROGRAM

29 C.F.R. 1926.150(a)(1) n5

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n5 The standard provides:

The employer shall be responsible for the development of a fire protection program to be followed throughout all phases of the construction and demolition work, and he shall provide for the firefighting equipment as specified in this subpart. As fire hazards occur, there shall be no delay in providing the necessary equipment.

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Respondent was cited for having failed to develop a fire protection program. The evidence is clear that a program was not im effect although fire fighting equipment was provided. The [*10] equipment, however, is only effective if employees know of its existence and know when and how to use it. On the other hand, fire equipment when used by untrained employees can and does lead to injury. Moreover, a program is necessary to insure an orderly evacuation if that should prove necessary. Under the circumstances, we consider a penalty of $45 to be appropriate.

UNSECURED CYLINDERS - 29 C.F.R. 1926.350(a)(9) n6

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n6 The standard provides:

Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

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Respondent was cited for and admits that it did not secure compressed gas cylinders in an upright position on three floors of the building. The cylinders on one floor were connected to welding equipment and by inference were at least partly full. None of the unsecured cylinders were marked as being empty.

The primary hazard involved is that an unsecured compressed gas cylinders can [*11] become a high speed projectile in the workplace. The consequences of the hazard are self-evident.

On the other hand the evidence of record concerning the likelihood of an accident, number of employees exposed, and duration of exposure is meager. In the circumstances we think a penalty of $50 is appropriate and we note that complainant normally proposes penalties in the range of $30-$50 for this kind of violation.

LIGHT GUARDS - 29 C.F.R. 1926.401(j) n7

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n7 The standard provides:

Temporary lights shall be equipped with guards to prevent accidental contact with the bulb, except that guards are not required when the construction of the reflector is such that the bulb is deeply recessed.

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Respondent was cited for and does not deny that its temporary lights were not guarded. Moreover, respondent admitted that in the circumstances latherers using metal strips could be electrocuted as a result of the violation. The condition was of reltively long duration, but the evidence is thin as to the number of latherers [*12] exposed to the condition. Moreover, in view of respondent's failure to provide adequate lighting it is evident that the gravity of the failure to guard the violation is somewhat mitigated. Considering all factors we conclude that a penalty of $125 is appropriate.

For the reasons given, the Judge's decision is modified so as to be consistent herewith, his order is modified so as to assess an aggregate penalty of $620, and the decision and order as modified are affirmed. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This decision is in error for a number of reasons:

1. The penalty for the fire protection violation

Respondent was cited for failure to comply with the requirements of an occupational safety and health standard printed in 29 C.F.R. 1926.150(a)(1) pertaining to development of a fire protection program. The Secretary of Labor proposed a penalty of $42.50 for this infraction 29 U.S.C. 659(a). Had respondent not exercised his right to a hearing, $42.50 would have become the assessed penalty without further action. Id. The Commission, however, has penalized respondent by assessing a penalty in an amount it never would have had to pay but for the fact that [*13] it sought a hearing on the issue, a right guaranteed both by the Constitution and this statute 29 U.S.C. 659(c).

Reasons why penalty increases are improper have been set forth in a number of decisions. n8 As a fundamental proposition, however, it would seem to be quite clear that it violates the equal protection clause of the fourteenth amendment and the due process provisions of the fifth amendment when the threat of increased penalties falls solely on those who seek a just disposition of charges against them by asserting their right to a hearing, thus creating an irrational basis for selection of the class upon whom this burden falls and an irrational means of effectuating any valid legislative policy.

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n8 Secretary v. M.A. Swatek & Company, Secretary v. California Stevedore & Ballast Company, Secretary v. Tacoma Boatbuilding Company, Inc., Secretary v. Robbins Painting Service,

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2. The reasons for vacating the container charge

The Judge properly disposed of a charge that respondent violated the Act by not observing the provisions of 29 C.F.R. 1926.152(a)(1) relating to the type of containers in which gasoline and other flammable liquids must be stored. He ruled the citation invalid because respondent was not accorded its right to have a representative accompany the inspector 29 U.S.C. 657(e). The Commission reaches the same disposition on burden-of-proof grounds.

In each of the opinions of the Commission which has been cited in footnote 1, supra, I have pointed out a typical reason why Congress included this requirement in the Act. The Complainant's evidence consisted of a photograph of containers which were in the back of a truck parked near the construction site. The truck did not belong to respondent and apparently the same was true to the containers. Had a representative of respondent been present at the time the truck was inspected, these facts could have been quickly established and the expense of trying this issue could have been avoided.

One of the prime movers in [*15] enactment of this statute, has recently reaffirmed the mandatory nature of this walkaround provision. Senator Williams of New Jersey is quoted as follows:

For example, Under Secretary of Labor Silberman has publicly announced that the right of an employee representative to accompany a compliance officer during an inspection need not be included in a state plan. This is clearly a case of disregarding congressional intent. Congress viewed this right and other worker rights included in the bill as being essential to successful implementation. n9

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n9 Quotation from Sheldon W. Samuels, "State Rights or Worker Rights," July/August 1973 issue of Trial, a bi-monthly publication of the Association of Trial Lawyers of America. The author of this article also produces convincing proof for his conclusion that ". . . the 'walk-around' is a right and not an optional procedure to achieve a right."

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3. The scaffolding violation

The Commission decision agrees with the Judge that respondent has failed to comply [*16] with the requirements for the erection of scaffolds which are listed in 29 C.F.R. 1926.451(a)(1) & (i)(4). For reasons given in the opinion, the penalty is reduced to $300 from the $850 amount assessed by the Judge. However, the most that has been shown is that respondent employed a slightly different method of erecting scaffolds than that specified in the regulations. There is no evidence that the safety or health of any employee was ever endangered as a result thereof. The Commission's conclusion that "the scaffold could fall particularly during the time of use of wooden outriggers" is unsupported by the record.

The principal purpose of this law is not to set forth specifications for the erection of scaffolds but to provide safe and healthful conditions of employment. To prove a violation of this law, it is not enough to show that the details of a standard for scaffold-erection were not followed in all respects; it must also be shown that a condition was thereby created which was hazardous to respondent's employees.

4. The housekeeping charge

The handling of this charge demonstrates, at a minimum, a certain insincerity on behalf of the complainant. The regulation, [*17] 29 C.F.R. 1926.25(a) & (b), requires that debris be kept cleared from work areas "during the course of construction." This was a construction job and the conditions which complainant alleged to be a violation of this regulation were observed by his inspector on January 19th. The citation, however, did not issue until 27 days later. This demonstrates not only a failure to observe the reasonable promptness requirements of 29 U.S.C. 658(a), but it speaks rather clearly as to how complainant truly regarded this matter. Had he felt that the conditions his inspector observed were truly hazardous to employees working on this construction job, he would not have waited 27 days before proceeding to effect their abatement.

5. Light guards

The Commission decision has conceded that "the evidence is thin" as to the number of employees exposed to the respondent's failure to have guards around its temporary lights as required by the regulation published in 29 C.F.R. 1926.401(j). In my judgment, the record does not show that anyone was endangered by this infraction. It also shows that respondent erected these unguarded lights upon the recommendation of complainant's area director. [*18] Faced with the reality of being unable to get guards for his temporary lights, respondent was confronted with a dilemma: no lights or unguarded lights. He asked for complainant's guidance in this situation and was told it was more important to have lights. Respondent was also informed by complainant's area director that "this office would give [respondent] no trouble on that matter [lack of light guards]." The Commission's assessment of a $125 penalty under these circumstances is totally unjustified.

6. Unsecured cylinders

The Commission has found that respondent violated the Act by failing to comply with the regulation published in 29 C.F.R. 1926.350(a)(9) requiring that compressed gas cylinders be secured in an upright position. The evidence does not sustain this conclusion. The Judge specifically found that the cylinders were stored in a "vertical" position.

7. The enforcement action itself

There is considerable support for respondent's argument that this action was initiated as a result of animus by complainant's representatives. The Commission decision relates that "Complainant was more interested in punishing than promoting industrial safety." The Judge [*19] notes that the January 19, 1972, inspection was "provoked" because of respondent's repeated requests for extensions of an abatement period to modify a material hoist.

The complainant's proposal of a penalty of $31,744 for the alleged failure to abate a previously-cited infraction and the issuance and distribution of a U.S. Department of Labor news release announcing the same is extraordinary and deserving of comment.

Both the Judge and the Commission have found that abatement of the previously-cited infraction had occurred prior to the January inspection. Even one of complainant's own witnesses, a State of Nebraska job safety inspector, testified that on November 29, 1971, December 20, 1971, and January 18, 1972, he found that all shafts and openings were properly guarded.

I do not believe that the foregoing ought to be treated lightly. This Commission ought to stand steadfast against any misuse of the broad powers granted the complainant under this Act to initiate enforcement actions. This respondent has been put to considerable expense to defend against a charge which should never have been brought. There may also have been personal embarrassment and loss of [*20] business reputation as a consequence of complainant's publication of the unjustified charge, coupled with its unprecedented penalty proposal.

The Commission should not close its eyes to such abuses. Considerable extra-legal damage to businesses will result from such a policy. In my opinion, the respondent should be invited to submit a bill of costs for the fees of its attorneys and expert witnesses as well as all incidental expenses connected with its defense of this matter and the amount thereof should be assessed against complainant.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ) to review certain citations and proposed assessments of penalties thereon issued February 11, 1972, by the Secretary of Labor against the Respondent, Beall Construction Company, and also to review a proposed penalty of $31,744.00 for alleged failure to abate a violation of Occupational Safety Standard 1518.500(c)(1) as directed by a citation issued November 15, 1971.

The November 15, 1971, citation in question charged the Respondent with eight violations [*21] of the Act. Respondent did not contest this citation nor any penalties proposed for said violations, and the citation and proposed penalties subsequently became a final order of the Commission not subject to review by any court or agency under the provisions of Section 10(a) of the Act. Item 5 of this citation alleged that on November 5, 1971, at Respondent's job site at the Fremont Towers, Route 30 and Clarkson Street, Fremont, Nebraska, the wall openings to the elevator shaft were not properly guarded in violation of 29 C.F.R. 1518.500(c)(1) (now codified as 1926.500(c)(1)). An abatement date of November 17, 1971, was fixed for this violation. On January 19, 1971, the work site was re-inspected, and on February 11, 1972, Respondent was notified of the Complainant's charge that it had failed to correct or abate the violation and that as a result Complainant proposed a total additional penalty of $31,744.

On February 11, 1972, the Secretary also issued a citation alleging serious violation and a citation alleging non-serious violations of the Act at the same work-place:

Alleged serious violations were referenced to the following standards:

1. 29 C.F.R. 1926.451(i)(1) [*22] which requires the plat-forms of two-point suspension scaffolds (swinging scaffolds) to be securely fastened to the hangers by U bolts or other equivalent means;

2. 29 C.F.R. 1926.451(a)(1) and 29 C.F.R. 1926.45(i)(4) which require, in the erection of scaffolding, roof irons or hooks of mild steel, or other equivalent material, of proper size and design, securely installed and anchored, and tiebacks of 3/4 inch manila rope, or the equivalent, as a secondary means of anchorage;

3. 29 C.F.R. 1926.451(i)(11) which requires a guardrail, not less than 2 X 4 inches, or the equivalent, on all open sides and ends of scaffolds more than 6 feet above the ground or floor.

Alleged non-serious violations were referenced to the following standards:

1. 29 C.F.R. 1926.401(j)(1) which requires temporary lights to be equipped with guards to prevent accidental contact with bulbs.

2. 29 C.F.R. 1926.56(a) which requires illumination of construction area, ramps, runways, corridors, etc.

3. 29 C.F.R. 1926.150(a)(1) which requires the employer to develop a fire protection program to be followed throughout all phases of construction work.

4. 29 CFR 1926.150(c)(1)(i) which requires that [*23] travel distance to the nearest fire extinguisher shall not exceed 100 feet.

5. 29 C.F.R. 1926.150(c)(1)(iv) which requires that extinguishers and water drums, subject to freezing, shall be protected from freezing.

6. 29 C.F.R. 1926.25(a) and (b) which require that scrap lumber with protruding nails and other debris shall be kept cleared from work areas, passageways and stairs, and that combustible scrap and debris shall be removed at regular intervals.

7. 29 C.F.R. 1926.350(a)(9) which requires compressed gas cylinders to be secured in an upright position.

8. 29 C.F.R. 1926.450(a)(2) which prohibits the use of ladders with broken or missing rungs or steps, broken or split siderails, or other faulty or defective construction and requires that ladders be withdrawn from service immediately upon discovery of defects.

9. 29 C.F.R. 1926.25(c) which requires garbage or other waste to be disposed of at frequent and regular intervals.

10. 29 C.F.R. 1926.152(a)(1) which requires that only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids.

Respondent elected to contest all alleged violations set forth on the citations [*24] issued February 11, 1972, as well as the charge that it had failed to abate the elevator shaft violation.

The Secretary's Complaint was filed March 3, 1972, and the Respondent's Answer on March 15, 1972. On March 24, 1972, Respondent filed a "First Amended Answer." The cause was assigned to the undersigned Judge by an order of the Commission dated April 17, 1972, and upon appropriate notice, the hearing was held in Omaha, Nebraska, on June 28 and June 29, 1972.

THE ISSUES

The issues for decision include the question of whether the Respondent violated the various Occupational Safety and Health standards as alleged, and whether Respondent failed to abate the elevator shaft guarding violation. Also in issue is the amount of the penalties, if any, to be assessed for alleged violations.

Additional issues were raised by Respondent in a Motion to Dismiss, which challenged the constitutionality of the Occupational Safety and Health Act. Prior to the hearing, the undersigned Judge denied this Motion on the ground that the Commission did not have jurisdiction to pass on the constitutionality of the statute from which it derives its authority. The Respondent is entitled to [*25] have the constitutional questions determined by a court, but this Report and Decision is limited to the issues relating to compliance with safety standards.

SUMMARY AND DISCUSSION OF THE EVIDENCE

THE ELEVATOR SHAFT BARRICADES

Complainant tendered four witnesses who testified with respect to the elevator shaft issue. They included the 2 compliance officers, Uldis Sid Levalds and Oscar F. DiSilvestro, who inspected the job site; Warren Wright, the OSHA Area Director who computed the proposed penalties; and Stephen A. Barker, a State of Nebraska Safety Investigator who visited the job site on several occasions during the course of construction. The record contains not only the testimony of Levalds, Wright and DiSilvestro at the hearing, but also their depositions which were taken by Respondent on June 1, 1972, and introduced into evidence as Respondent's exhibits. Mr. DiSilvestro testified that he conducted the initial inspection of the Fremont Towers work site on November 5, 1971. At that time, some of the elevator shaft openings were not protected at all; some had a 2 X 4, and other had bailing wire stretched across the openings (Exhibit R-8, pages 11, 14). He informed [*26] Wenzel Hungate, the employer's representative, that the regulation required protection secured to a solid object to keep from being dislodged and showed him Regulation 1518.500(c)(1). At the re-inspection on January 19, 1972, Mr. DiSilvestro observed that the bailing wire had been removed, but the only new additions were some 4 X 8 plywood sheets resting against the face of the elevator shafts (Exhibit R-8, page 34).

Mr. DiSilvestro also testified that an elevator installer encountered on January 19 complained that the guarding method was such that he had to climb over the barricades in order to get in and out of the elevator shaft (Tr. 185). Mr. DiSilvestro took a number of photographs, but only 2 of the 20 pictures developed. All pictures of the elevator shaft barricades were blank (Tr. 193).

OSHA Compliance Officer Uldis Sid Levalds testified that he accompanied DiSilvestro on the January 19, 1972, inspection. He described the construction of the elevator shaft barricades, and stated: ". . . the material . . . appeared to be of adequate strength -- the thing I took issue about was the lack of securement from the third floor up . . . it appeared that all these barricades [*27] were leaned against the elevator shaft openings" (Tr. 19). On deposition Levalds stated that the entire shaft opening was covered by plywood when that was the material used, and that all the barricades were up at the time of the inspection.

Warren Wright testified that he was the Area Director, Occupational Safety and Health Administration in Omaha, Nebraska, and that he issued the citations and proposed penalties to the Respondent after reviewing the Compliance Officers' report of the January 19, 1972, inspection. He did not personally view the work site, but cited the Respondent for failure to abate the elevator shaft violation because the second inspection indicated the Compliance Officers found the same condition existing that was observed on November 5, 1971. It was therefore assumed that the condition existed without interruption, and a daily fine in the sum $750 was computed for 42 working days during the period from the first to the second inspection. Also, a 50% abatement factor for which the Respondent had been credited in November was entered back into the proposed penalty, making a total proposed penalty of $31,744 (Tr. 60).

Stephen A. Barker, witness for the Complainant, [*28] testified that he inspected the Fremont Towers construction project on several occasions for the State of Nebraska Department of Labor. On the occasion of an inspection on November 28, 1971, elevator shaft barricades consisted of numerous materials -- "it seemed that on each floor their guardrails consisted of what they could possibly find on that floor to make them out of" (Tr. 148). The condition of the elevator barricades would change from time to time during his inspections, and he recalled, to the best of his knowledge, that one barricade, on either the seventh, eighth or ninth floor, was not secured by wire on January 18, 1972. On October 28, 1971, Mr. Barker reported that all shafts and openings were not properly guarded. However, on November 29, 1971, December 20, 1971, and January 18, 1972, he found that all shafts and openings were properly guarded (Exhibits R-1, R-2, R-3).

Mr. Barker repeated his observations in answer to questions put by the Judge: ". . . On one floor there was just a piece of plywood leaning against a 2 X 4. This would have been on the January inspection. The November and the December inspections they were pretty well guarded" (Tr. 168). [*29]

Witnesses for the Respondent included officers and employees who testified that the elevator shaft barricades were constructed "immediately" after the November 5, 1971, inspection. Six carpenters were assigned to the job. The barricades were completed the following day and secured with No. 9 wire fastened to permanent walls at the end of the elevator shaft (Tr. 250). The barricades differed from floor to floor depending on the materials available on the particular floor (Tr. 252). The elevator installers did remove certain portions of the barricades in order to bring in the materials and work within the shaft.

Harry Edward Wolstencroft, an engineering department representative of Bituminous Insurance Company, testified that he inspected Fremont Towers on January 18, 1972, and recalled encountering State Inspector Barker on the project. Mr. Wolstencroft found all shaft openings were barricaded, and the barricades attached by No. 9 wire through a concrete block (Tr. 390).

John F. Gardiner, a witness for the Respondent who is employed by the O'Keefe Elevator Company, was the mechanic in charge of the elevator installation on the Fremont Towers project. He testified that when [*30] his work started on November 19 the elevator shafts were barricaded. He stated that all barricades were fastened, but he differed with earlier testimony that all had been wired at the end. On several floors a 2 X 4 was placed through a toothed block on each wall and wedged in place. When asked if this type of barricade was as strong as one which had been wired, he replied, "Well, they all supported myself and my helper because the only way we could get in and out was by climbing over them . . ." (Tr. 416).

Later, in order to install doorframes, he removed the barricades which were replaced after the frames were installed. All barricades were wired back in place (Tr. 418).

The foregoing is a summary of the highlights of the testimony relative to the elevator shaft barricades. By any standard of proof the Complainant has failed to meet its burden and establish a continuing violation with respect to elevator shaft guarding. All the witnesses agree that the Respondent had erected barricades of sufficient strength at the shaft opening on each floor. The OSHA Compliance Officers testified that the barricades were not properly secured on January 19, 1972, and it was therefore [*31] assumed that this situation had obtained without interruption since November 5, 1971, the date of the first inspection. This testimony, however, was contradicted not only by a number of witnesses who appeared for the Respondent, but also by the testimony of Complainant's own witness, Stephen A. Barker, the Nebraska State Inspector. He stated affirmatively that the barricades were "pretty well guarded" in November and December, but one barricade was not secured on the occasion of his inspection January 18, 1972. This testimony appears consistent with that of John F. Gardiner, the mechanic in charge of the elevator installation. It was his recollection that all barricades were secured although not necessarily wired into place. After installation of the doorframes, the elevator installers replaced the barricades and fastened them with wire.

The evidence would appear to preponderate in favor of the finding that there was one unsecured barricade in violation of 29 C.F.R. 1926.500(c)(1) on January 19, 1972. However, the Respondent is not charged with any new violation of the regulation on that date; rather, the charge is one of continuous failure to correct or abate, and [*32] the record is clear that the Respondent made a considerable effort to correct the elevator shaft situation subsequent to the November 5, 1971, inspection. The issue is not close, and no further discussion is necessary.

THE SERIOUS VIOLATIONS IN RE-SCAFFOLDING

The Complaint alleges that on January 19, 1971, the Respondent had a two-point suspension scaffold which violated certain safety standards, because (1) the platform was not securely fastened to its hangers by U bolts or other equivalent means; (2) the scaffold had no roof irons or hooks of mild steel or other equivalent material securely installed and anchored with tiebacks as a secondary means of anchorage; and (3) the scaffold guardrail was less than 2 X 4 inches or the equivalent.

In his deposition, introduced in evidence by Respondent, Hugh Fulton Beall, Vice President and Construction Superintendent at Fremont Towers, stated that it was probably true that the platform was not securely fastened to the hangers by U bolts or other equivalent means, but the scaffold in question had been inspected by State Safety Department Inspector Stephen Barker on January 18, 1972. Mr. Barker pointed out that the scaffold did [*33] not meet safety requirements, and the Respondent immediately took it out of service and began making modifications. The scaffold was not in service on January 19, 1972, the day of the OSHA inspection (Exhibit R-9, page 42). On the day prior to the inspection, men had worked on a platform not secured to hangers with U bolt (Exhibit R-9, page 43). It was also true that on the roof the scaffold was secured and supported by planks with concrete blocks and that there were no irons or hooks or other equivalent material to securely anchor the planks. The scaffold had probably been used a total of 3 or 4 days prior to the OSHA inspection (Exhibit R-9, page 44).

At the hearing, Hugh Fulton Beall testified that there were 2 X 4 cleats nailed to the side of the platform in lieu of U bolts, and he believed that these provided greater protection than U bolts, because the cleat arrangement gains stability in all directions (Tr. 270). He also testified that the top rail consisted of a 2 X 4 on top of which was placed a lighter weight piece of ripped down 2 X 4 as an arrangement to hang tools and brushes (Tr. 268). On cross examination, Mr. Beall admitted that the scaffold had no roof irons [*34] or hooks; that the arrangement on the roof was one of 10-inch I beams with 500 pound concrete blocks placed on the ends of the beams (Tr. 305, 306).

The Complainant introduced no photographs to clarify the construction of the guardrail or the manner in which the scaffold platform was fastened to the hangers, and the undersigned Judge is not persuaded that the proof establishes violations of either 29 C.F.R. 1926.451(i)(1) or 29 C.F.R. 1926.451(i)(11). Clearly established in the record, however, is the fact that the scaffold lacked both roof irons or hooks of steel or equivalent material and a secondary means of anchorage in the form of tiebacks of 3/4 inch manila rope or the equivalent. The existing arrangement described by Hugh Beall, that of merely placing weighted blocks on an I beam, cannot be accepted as adequate compliance with the Standard. When an employer substitutes a device which differs radically in structure and design from the approved safety measures set forth in the Regulation, the burden of proof shifts, and the employer necessarily has the responsibility of proving that the means or materials employed are the equivalent of those required by Regulations. [*35]

Mr. Beall's assertion that the concrete blocks provided sufficient and safe anchorage was not supported by any other testimony related either to expert engineering opinion or industry practices. It is also noted that Respondent modified the scaffold by installing tiebacks before placing it back in service (Tr. 313).

Another point raised somewhat obliquely by Mr. Beall's testimony was whether the scaffold was an "outrigger scaffold" or a "two-point suspension scaffold" as defined in the Regulations. The latter is defined in the Regulations at 29 C.F.R. 1926.452(34) as follows:

"A scaffold, the platform of which is supported by hangers (stirrups) at two points suspended from overhead supports so as to permit the raising or lowering of the platform to the desired working position by tackle or hoisting machines."

The definition fits the structure described in the evidence, and we find that the proof established a violation of 29 C.F.R. 1926.451(a)(1) and (i)(4) ("Citation Number 2 of 3 for Serious Violation").

A finding that the proof supports the said Citation No. 2 does not dispose of all the issues with respect to scaffolding. Paragraph 18 of the Complaint, as drawn, alleges [*36] that on January 19, 1971, the Respondent had a two-point suspension scaffold which was secured and supported with a plank which in turn was anchored by concrete blocks and, in addition, the said scaffold had no roof irons or hooks of mild steel or other equivalent material the proper size and the sides securely installed and anchored, and tiebacks were not provided as a secondary means of anchorage in violation of 29 C.F.R. 1926.451(a)(1) and (i)(4). The Complaint further alleged that two laborers were affected by this violation.

In answer, Respondent alleged -- and the proof established -- that the scaffold was not in use on January 19, 1972, but was being renovated at the time.

The variance between the pleadings and the proof raises a fine question. No laborers were affected by the violation on January 19, 1971, as alleged in paragraph 18 of the Complaint. However, statements made by Hugh Fulton Beall, in a deposition introduced in evidence by Respondent, clearly established that laborers were affected by the violation on January 18, 1971. The Complaint, of course, could have alleged the time element in more general terms, or, in the alternative, Complainant could [*37] have moved to amend the pleadings to conform to the proof at any time after Mr. Beall's deposition on June 1, 1972. The Respondent was in no way surprised, and the statutory requirements that the citation be issued with reasonable promptness (Section 9(a)) and within six months following occurrence of the violation (Section 9(c)) are met. A motion to amend would have been favorably received.

Nevertheless, no such motion graces the record, and the question remains: "Is failure to amend a Complaint to conform to the proof, fatal to the Complainant where the proof clearly establishes a violation of the Act?" This question is controlled by Rule 15(b) of the Federal Rules of Civil Procedure which states: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected [*38] to at the trial on the ground that it is not within the issues made by the pleadings, a court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

In the instant case, the Respondent did not object to the introduction of evidence establishing a violation of 29 C.F.R. 1926.451(a)(1) and (i)(4) on January 18, 1971. Rather, the Respondent offered as its own exhibit the deposition which established the violation. Under the mandate of Rule 15(b), the Complainant's failure to amend is not permitted to affect the result of the trial of this issue.

The above reasoning is not in conflict with the recently announced result in James D. Hodgson v. Ellison Electric, Unlike the Ellison Electric case, the Secretary in the instant case met his burden by showing that employees used the unsafe structure at a time when the structure did [*39] not conform to the standards cited.

The evidence also established that the scaffolding in question was used as high as the 12th story of the project. A fall from an unsafe scaffolding at such a height would most certainly create a "substantial probability of death or serious physical harm," and the violation must be deemed "serious" as that term is employed in Section 17(k) of the Act. Under the circumstances, a proposed penalty of $850 appears reasonable giving due consideration to the size of the employer's business, the gravity of the violation, the good faith of the employer and his history of previous violations.

NON-SERIOUS VIOLATIONS: LIGHTING

The testimony with respect to an alleged violation of Regulation 29 C.F.R. 1926.401(j)(1) which requires temporary lights to be equipped with guards to prevent accidental contact with bulbs was clear. Respondent was having some difficulty obtaining guards, and, according to the deposition of Hugh Fulton Beall, he discussed the problem with OSHA Area Director Warren Wright in a telephone conversation on January 11, 1972. Respondent never obtained sufficient guards (Exhibit R-9, page 9). However, Mr. Beall believed that [*40] he had obtained assurance from Mr. Wright that the OSHA office would "give them no more trouble about the matter" (Tr. 261). Admittedly, the Respondent did not apply for a variance, and no writing documents any agreement which would relieve Respondent from its duty of complying with 29 C.F.R. 1926.401(j)(1).

The testimony with respect to the inadequacy of the lighting in the stairwells -- in violation of 29 C.F.R. 1926.56(a) -- was equally clear.

Larry Hugh Beall, who accompanied the OSHA inspectors as the employer's representative on January 19, 1972, described the stairway lighting situation as rather poor in some location with lights at every third landing (Tr. 365). Mr. DiSilvestro's testimony was stronger in this regard as he recalled using a flashlight to negotiate the stairs (Tr. 186).

OSHA Area Director Warren Wright testified as to the methodology he employed in computing proposed penalties for "non-serious violations." For each citation item he first fixed an "unadjusted penalty," based on his estimate of the gravity of the violation. This penalty was then reduced by a factor of 5% for company size and 10% for company history. Respondent was given no percentage [*41] reduction for any "good faith" factor.

The undersigned Judge does not endorse the Department of Labor's formula approach to assessment of proposed penalties, nor necessarily agree to the weight assigned to the various reduction factors. However, a review of the penalties proposed for the various non-serious citation items herein reveals them to be reasonable in those instances where proof of violations is established by the evidence. No lengthy itemized discussion of proposed penalties for non-serious violations will be conducted in this Report and Decision. (There will be discussion, however, of Respondent's suggestion that all citations and penalties be dismissed in their entirety, because of the unreasonableness of the total penalty proposed by Complainant.)

To summarize, the proposed penalties for lighting violations, Non-serious Items (1) and (2), in the amounts of $212.50 and $127.50 appear reasonable and should be affirmed.

NON-SERIOUS VIOLATIONS: FIRE PROTECTION

A considerable amount of testimony was devoted to the citation items with respect to fire protection, i.e., the location of 55 gallon water drums, the amount of freezing in the drums, the dates when freezing [*42] occurred, etc. The Respondent, however, erected a defense which makes it unnecessary to make fine judgments about the water drums. According to the testimony of Hugh Fulton Beall and Robert Van Hyning, fire protection on January 19, 1972, consisted of water pressure provided to the fireline hoses. This testimony contrasted with that of the OSHA compliance officers who found no indication of water pressure on their inspection tour. With the evidence evenly balanced, it would not appear that any charges respecting the use of water drums as substitutes for fire extinguishers can be sustained, but the record does reveal a major flaw in the fire protection program. Larry Hugh Beall, third in command on the project, was not aware of the fact that water pressure was supplied to the firehoses on the day of the inspection. Accepting the testimony that the hoses were the means relied upon for fire protection on January 19, 1972, it follows that Respondent had a duty of conveying this information to all its employees. This would be a minimal requirement for an adequate fire protection program. The violation of Regulation 29 C.F.R. 1926.150(a)(1) is supported by a preponderance [*43] of the evidence, and the suggested penalty of $42.50 appears appropriate.

NON-SERIOUS VIOLATIONS: HOUSEKEEPING

Hugh Fulton Beall agreed that by his standards housekeeping was lax on three floors and the Respondent had been cited by Mr. Barker one day earlier for housekeeping violations. It is not disputed that debris had been allowed to accumulate in work areas in violation of Regulation 29 C.F.R. 1926.25(a) and (b). The frequency of industrial accidents from slips and falls is known, and the suggested penalty of $212.50 is justified.

NON-SERIOUS VIOLATIONS: GAS CYLINDERS

Testimony of Compliance Officers that they observed compressed gas cylinders containing oxygen and acetylene on the first, ninth and twelfth floors not secured in upright positions was not rebutted by Respondent. The Respondent suggests, however, that the proof with respect to a violation of Regulation 29 C.F.R. 1926.350(a)(9) fails because the evidence did not show that the cylinders contained gas, oxygen or any other substance. An excellent answer to this suggestion was given by the witness Levalds on cross examination: ". . . they were not marked 'empty', which is a standard practice on any construction [*44] job. I might also point out, whether they are full or empty seems to be of some concern. Acetylene cylinders are never totally empty. So they would still present a fire or explosion hazard whether full or empty in addition to the other problem of being knocked over" (Tr. 120). Complainant sustained its burden of proof, and the suggested penalty of $127.50 appears appropriate.

NON-SERIOUS VIOLATIONS: DEFECTIVE LADDER

The Citation Item charging a violation of Regulation 29 C.F.R. 1926.450(a)(2) described the alleged violation as relating to two broken rungs of a ladder in use on the ninth floor. The Compliance Officers testified that the ladder they observed had missing rungs, but the Respondent's witnesses challenged this observation, stating that the ladder in question was an eight foot stepladder with the legs entirely missing off the back side. It was used only to lean against the wall or some stable stationary support and used as a straight ladder. The steps, however, were secure and fully in place. This conflict in testimony again represents an unfortunate situation which would have been resolved by a photograph. Under the circumstances, the better ruling [*45] favors finding that the Complainant has failed to carry his burden, and the allegation of violation is not proven.

NON-SERIOUS VIOLATIONS: WASTE DISPOSAL

Testimony from the Compliance Officers indicated that portable toilets at the ground level and on the roof of the Fremont Towers project were full in violation of Regulations 29 C.F.R. 1926.25(c). Testimony introduced by Respondent established that a contract was in force with a commercial service company to clean the toilets on a weekly basis. This may or may not have been frequent enough in view of the number of men working on the project, and the testimony of the Compliance Officers carried a ring of veracity which cannot be dismissed lightly. It would appear that a technical violation of Regulation 29 C.F.R. 1926.25(c) has been established, but this matter comes within purview of the ruling announced by the Commission in the J.E. Chilton Millwork and Lumber Company case. In matters relating to toilet closets, clean restrooms, etc., relatively minor monetary penalties do little to effectuate the principal purpose of the Act, i.e., to obtain compliance with the Act to insure a safe and healthful work-place. In view of [*46] Respondent's contractual efforts to provide for frequent and regular disposal of waste, the Secretary's penalty proposals should be reduced to zero.

NON-SERIOUS VIOLATIONS: GASOLINE CONTAINERS

The evidence of record is scarcely sufficient to sustain a violation of Regulation 29 C.F.R. 1926.152(a)(1). Unapproved containers were observed by the Compliance Officers on a truck parked near the Fremont Towers project prior to their inspection trip, and Mr. DiSilvestro took a photograph of the truck and the containers. The truck, the proof established, was owned by Larry Hugh Beall. Ownership of the containers is less certain, but in no event can a citation be sustained, since no representative of the employer accompanied the Compliance Officers during this portion of the inspection. Section 8(e) of the Act makes it mandatory that a representative of the employer be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of the workplace. Any portion of an inspection conducted in the absence of an employer representative cannot be the basis for a citation or sustain penalties assessed therein.

THE UNREASONABLENESS OF [*47] THE TOTAL PENALTY

One further point raised by the Respondent merits serious consideration. After pointing out the severity of the proposed penalty in the instant case in his brief, counsel for the Respondent stated: "The unreasonableness of this total penalty indicates that the OSHA office was more interested in punishing the Respondent than in promoting industrial safety. We submit that this is so clear in this record that this case should be dismissed in its entirety."

Whatever the legal basis for this argument may be -- and no authorities are cited in support of the proposition -- the undersigned Judge nevertheless agrees that the proposed penalties were extraordinary and excessive in light of the evidence, and has therefore weighed and considered the proposition that the case be dismissed in its entirety as a matter of fair play. The Judge has reviewed the actions of both parties as revealed by the depositions and transcript, and found certain conclusions compelling: The Department of Labor "overreacted" in its response to what Mr. DiSilvestro referred to as "use" of the OSHA office. The irritant which provoked the January 19, 1972, inspection, it appears, was [*48] Respondent's repeated requests for extensions of an abatement period to modify a material hoist when it never in fact placed an order with a supplier for any modification equipment. This action by the employer did not, of course, justify the Department of Labor's extraordinary effort to penalize the Respondent for unrelated conditions. Nevertheless, the Respondent is far from blameless. The most cursory reading of the transcript reveals that the Company's devotion to employee safety was suspect whenever safety regulations required purchase of equipment as opposed to construction with materials on hand. Beall Construction Company was something less than a surprised and innocent victim of an arbitrary bureaucracy. This was an unfortunate dispute with negative lessons for both Complainant and Respondent, but we are not persuaded that the purposes of the Act are best served by dismissing all charges. Rather, promotion of a safe and healthy environment for employees dictates that penalties properly assessed in accord with proof of violation be affirmed.

FINDINGS OF FACT

1. As a result of an inspection made of the Fremont Towers project in Fremont, Nebraska, on November 5, 1971, [*49] Beall Construction Company, Respondent, was issued a Citation on November 15, 1971, including among other violations a Citation for failure to properly guard elevator shaft openings (Citation No. 2, Item No. 5) in violation of 29 C.F.R. 1518.500(c)(1) (now codified as Section 1926.500(c)(1)) with an abatement date of November 17, 1971.

2. On November 5 and 6, 1972, Respondent erected barricades for all elevator shaft openings at Fremont Towers. All barricades were of sufficient strength to withstand at least the minimum requirement of 200 lbs. top rail pressure with a minimum of deflection.

3. The violation of 29 C.F.R. 1518.500(c)(1) was abated on or before November 17, 1971, by construction and erection of the aforementioned barricades.

4. On January 19, 1972, a scaffold suspended from planks or beams projecting from the roof was observed at the 12th floor level of the Fremont Towers project. The parties differed as to the type of scaffold. The Compliance Officers classified it as a "two-point suspension scaffold" and Respondent's vice president referred to it as an "outrigger scaffold". On the basis of the evidence and the purpose for which the scaffold was [*50] being used, it properly comes within the definition of a two-point suspension scaffold under 29 C.F.R. 1926.452(b)(34) and the Regulations governing such scaffolds.

5. The two-point suspension scaffold was not fastened to the hangers or stirrups by U bolts but was secured by 2 X 4-inch wood cleats, and the evidence fails to establish a violation of 29 C.F.R. 1926.45(i)(1).

6. The two-point suspension scaffold was hung from, or supported by, two beams or planks from the roof. The beams were not fastened, other than having concrete blocks placed on 2 X 4 boards across the ends of the beams. It was admitted by Respondent's vice president that employees used the scaffold on January 18, 1972, and on three other days at a time when the scaffold was not hung or secured from the roof by roof irons or hooks of mild steel and no tiebacks were provided as a secondary means of anchorage in violation of 29 C.F.R. 1926(a)(1) and (i)(4).

7. The evidence was not clear with respect to the construction of the top guardrail of the scaffold and fails to establish a violation of 29 C.F.R. 1926.451(i)(11).

8. Temporary lights used on January 19, 1972, in lighting corridors at the Fremont [*51] Towers project were not properly guarded to prevent accidental contact by workmen in violation of 29 C.F.R. 1926.401(j)(1).

9. On January 19, 1972, there was inadequate lighting in the stairwells of the Fremont Tower Project in violation of 29 C.F.R. 1926.56(a).

10. The testimony of Compliance Officers and company representatives differed as to the type and extent of Respondent's fire protection program. It is Respondent's contention that fire protection was provided on January 19, 1972, by means of water pressure supplied to firehose lines; however, employees at the job site, including the Company representative who accompanied the Compliance Officers on the inspection, were not so informed. The evidence therefore does establish that Respondent had not developed an adequate fire protection program to be followed throughout all phases of the construction work in violation of 29 C.F.R. 1926.150(a)(1). The evidence fails to establish the use of 55 gallon water drums as a substitute for fire extinguishers on January 19, 1972, and, therefore, no violations of 29 C.F.R. 1926.150(c)(1)(i) or (c)(1)(iv) are proven.

11. Respondent admittedly had deficient housekeeping practices at [*52] its Fremont Towers worksite on January 19, 1972, allowing debris to accumulate in work areas in violation of 29 C.F.R. 1926.25(a) and (b).

12. Metal cylinders containing compressed gas or empty cylinders to be returned to the supplier were stored in a vertical position without being fastened or secured on January 19, 1972, in violation of 29 C.F.R. 1518.350(a)(9).

13. The evidence was conflicting with respect to the presence of a wood ladder with missing rungs and fails to establish a violation of 29 C.F.R. 1518.450(a)(2).

14. The evidence establishes the existence of full toilets at the Fremont Towers project on January 19, 1972, in violation of 29 C.F.R. 1926.25(c); however, the Respondent had contracted for regular disposal of waste, and the purposes of the Act would not be served by imposition of any penalty for this violation.

15. The evidence fails to establish any violation of 29 C.F.R. 1926.152(a)(1). Moreover, the evidence in this regard was derived from an inspection made in the absence of any company representative in violation of the mandate of Section 8(e) of the Act, and the citation charge and proposed penalty referenced to 29 C.F.R. 1926.152(a)(1) [*53] must be dismissed.

CONCLUSIONS OF LAW

1. While Beall Construction Company was engaged in the construction of Fremont Towers, it was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, hereinafter referred to as the Act. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein pursuant to Section 10(c) of the Act.

2. Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) imposed a duty on Respondent to comply with the safety and health regulations for construction promulgated by the Secretary of Labor pursuant to Section 6(a)(2) of the Act and published in 29 C.F.R. 1926, et seq.

3. The citation, proposed penalty, and notification of failure to correct violation and proposed additional penalty and all pleadings in this matter have been properly served or posted in compliance with the notice and service requirements of the Act, including Section 9, and the pertinent regulations promulgated thereunder.

4. Respondent was issued a Citation on November 15, 1971, for violation of 29 C.F.R. 1518.500(c)(1), now codified as 1926.500(c)(1) [*54] for failure to properly guard openings to the elevator shaft at Fremont Towers with an abatement date of November 17, 1971. Complainant has failed to prove, by a preponderance of the evidence, that Respondent did not correct or abate guarding of its elevator shaft by November 17, 1971.

5. Respondent violated Section 5(a)(2) of the Act on January 19, 1972, by its non-compliance with the following Occupational Safety and Health Regulations at the aforesaid work place, as follows:

(a) 29 C.F.R. 1926.401(j)(1) as described in Item 1, Citation 4 and Finding No. 8. A penalty of $212.50 is appropriate.

(b) 29 C.F.R. 1926.56(a) as described in Item 2, Citation 4 and Finding No. 9. A penalty of $127.50 is appropriate.

(c) 29 C.F.R. 1926.150(a)(1) as described in Item 3, Citation 4 and Finding 10. A penalty of $42.50 is appropriate.

(d) 29 C.F.R. 1926.25 and (b) as described in Item 6, Citation 4 and Finding 11. A penalty of $212.50 is appropriate.

(e) 29 C.F.R. 1518.350(a)(9) as described in Item 7, Citation 4 and Finding 12. A penalty of $127.50 is appropriate.

(f) 29 C.F.R. 1926.25(c) as described in Item 9, Citation 4 and Finding 14. It is appropriate that no monetary [*55] penalty be imposed for said violation.

6. The total proposed penalty for non-serious violations set forth in paragraph 5 above in the amount of $722.50 is found to be appropriate giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, the employer's previous history and its action to abate the conditions.

7. The evidence fails to establish non-compliance with respect to Items 4, 5, 8 and 10 of Citation 4, and proposed penalties for these alleged non-serious violations in the sum of $361.25 should be vacated.

8. In addition to the non-serious violations, Respondent was cited for serious violations of Section 5(a)(2) of the Act with respect to a two-point suspension scaffold. As stated in Finding No. 6, the evidence established a violation of 29 C.F.R. 1926.451(a)(1) and (i)(4) on January 18, 1972. This violation was serious in that there was substantial probability that death or serious injury could result from the condition. Under the circumstances, a proposed penalty of $850.00 for said serious violation is reasonable and appropriate giving due consideration to the size of the business of the employer, [*56] the gravity of the violation, the good faith of the employer, and the employer's previous history.

9. The evidence failed to establish non-compliance with respect to two additional citations for serious violation pertaining to the same scaffold, and the proposed penalties totalling $1700 for alleged violations of 29 C.F.R. 1926.451(i)(1) and 29 C.F.R. 1926.451(i)(11) should be vacated.

ORDER

Based on the above Findings of Fact and Conclusions of Law, it is ORDERED that:

1. The proposed penalty for failure to abate in the amount of $31,744 is vacated.

2. Items 1, 2, 3, 6, 7, and 9 of a Citation for non-serious violation issued Respondent on February 11, 1972, are hereby affirmed, and a total penalty of $722.50 is hereby assessed for said non-serious violations; Items 4, 5, 8 and 10 of the aforesaid Citation and the proposed penalties assessed thereon are hereby vacated.

3. A Citation for serious violation issued Respondent on February 11, 1972, alleging violation of 29 C.F.R. 1926.451(a)(1) and (i)(4) and a Proposed Penalty of $850 assessed thereon is hereby affirmed; Citations alleging serious violations of 29 C.F.R. 1926.451(i)(1) and 29 C.F.R. 1926.451(i)(11) [*57] and the proposed penalties assessed thereon are hereby vacated.