D. FORTUNATO, INC.

OSHRC Docket No. 76-3103

Occupational Safety and Health Review Commission

August 16, 1979

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

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

Robert A. Flanagan, Project Super., D. Fortunato Inc., for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

The Respondent, D. Fortunato, Inc. ("Fortunato"), allegedly violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"), while engaged in construction of a parking garage at New York City's La Guardia Airport. Fortunato, the general contractor for the construction project, was issued one citation alleging four nonserious violations and three citations alleging serious violations of various occupational safety and health standards for construction. Administrative Law Judge Seymour Fier issued a decision affirming items 1 and 2 and vacating item 4 of citation 1, affirming a modified citation 2 and affirming citations 3 and 4. Item 3 of citation 1 was not contested and therefore was not before the judge. The judge's decision is before this Commission by a general direction for review issued under 29 U.S.C. 661(i). Only Fortunato has filed exceptions to [*2] parts of the judge's decision. n1

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n1 The Secretary has not taken exception to the portions of the judge's decision vacating item 4 of citation 1 and modifying citation 2 by vacating one alleged instance of violation of the cited standard. Since there is no compelling public interest warranting further Commission review, those portions of the judge's decision will not be considered on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

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I

The Serious Citations

A. Alleged Violation of 29 CFR 1926.500(f)(1)(iv)

Citation 2 alleges that Fortunato violated 1926.500(f)(1)(iv) n2 by failing to provide anchor posts and guardrails capable of withstanding a load of 200 pounds applied in any direction on the top rail with a minimum of deflection. The record establishes that there was a 15-1/2 by 12-foot stairwell opening located in the northeast corner of the roof. The stairs had not yet been installed and, therefore, a 24-foot fall [*3] through the opening was possible. The stairwell was guarded by a 1/4-inch cable that deflected from a height of 42 inches to a height of 29 inches when depressed by the compliance officer. The record also establishes that there was an 8 by 28-foot floor opening on the west side of the roof. The distance to the floor below was 10 feet. This opening was guarded by a 1/4-inch cable that deflected to the floor when the compliance officer pushed down on it. One of the vertical posts to which the cable was attached was pulled up from the floor when the cable was deflected.

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n2 The standard reads as follows:

1926.500 Guardrails, handrails, and covers.

* * *

(f) Standard specifications.

(1) . . . Minimum requirements for standard railings . . . are specified in the following paragraphs:

* * *

(iv) The anchoring of posts and framing of members for railings of all types shall be of such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection.

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The judge affirmed a serious violation of 1926.500(f)(1)(iv) on the basis of these facts. n3 He found that employees of Fortunato were in proximity to the openings. He further found that the perimeter guarding "was inadequate and possibly dangerous to any unsuspecting worker" because of the extent to which the cables could be deflected. With respect to the assessment of an appropriate penalty, the judge noted that one allegation of the citation had been vacated. Despite that fact he assessed the $800 proposed penalty because of the gravity of the violation.

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n3 Allegation C of this citation was dismissed by the judge at the hearing upon the motion of the Respondent. The Secretary did not object to the motion because he had presented no evidence to support this allegation. See note 1, supra.

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Fortunato contends that the Secretary did not prove that its employees were exposed to the hazard because the compliance officer did not have [*5] personal knowledge of whether the workers on the roof were employed by the Respondent. In support of this contention Fortunato asserts that its shop steward and safety officer, Sciortino, contradicted the compliance officer's testimony that Sciortino identified the workers during the inspection as being employees of the Respondent. We reject these contentions for the following reasons. The testimony of the compliance officer that the employees he observed on the roof were employed by Fortunato was corroborated by his testimony that these employees were performing the types of work that the Respondent performed at the worksite. Specifically, the employees were installing rebars, working on a layout for a wall, and carrying materials. The compliance officer testified that he observed a total of 18 to 20 employees working on the roof, passing as close as two feet from the stairwell openings. Moreover, the compliance officer's testimony was not directly contradicted by Sciortino. At no time did Sciortino deny that he made the admission to the compliance officer or testify that Fortunato had no employees on the roof. Sciortino's testimony was directed solely to the identity of two [*6] workers adjacent to the stairwell openings. Because the judge's finding of exposure is supported by a prepondenrance of the evidence, we affirm that finding. n4 See M.J. Lee Construction Co., 1979 OSAHRC    , 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979); cf., Armor Elevator Company, Inc., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD P16,958 (Nos. 425 & 426, 1973), appeal dismissed, No. 75-4028 (2d Cir. 1975) (Secretary has the burden of proving an alleged violation by a preponderance of the evidence).

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n4 We note that the citation would be proper even if the employees exposed to the hazard were those of Fortunato's subcontractors rather than its own employees. Fortunato was the general contractor on the worksite. The Commission has held that a general contractor on a multi-employer construction site may be liable even if only its subcontractors' employees are exposed to the hazardous condition. See Knutson Construction Co., 76 OSAHRC 131/F3, 4 BNA OSHC 1759, 1976-77 CCH OSHD P21,185 (No. 765, 1976), aff'd, 566 F.2d 596 (8th Cir. 1977). In this case, Fortunato could have detected and abated the violative conditions in the exercise of its supervisory responsibilities. Under these circumstances, the Commission has held that it is reasonable to impose liability upon a general contractor for violations that create a hazard to its subcontractors' employees. Id.

[*7]

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Fortunato also argues that it should not be held responsible for the violative conditions because it did not create them and was not aware of them. We reject this contention on the ground that Fortunato did not prove its factual assertions. n4a Hahn, the carpenter foreman, stated that he and two other carpenters constructed the guarding around the openings. Both Hahn and Sciortino testified generally that they were unaware of any problems with the guarding until the inspection. However, neither this testimony nor any other evidence establishes that the guardrails as originally erected by Fortunato complied with the requirements of the standard or that there was any change in conditions after the guardrails were installed. Furthermore, there is no evidence supporting Fortunato's assertion that employees of other contractors tampered with the guardrail and thereby created the violation. Consequently, we find the Respondent to be in serious violation of 1926.500(f)(1)(iv), inasmuch as Fortunato's employees were exposed to the inadequately guarded openings and a fall of 10 or 24 feet could result [*8] in serious injury or death.

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n4a Fortunato appears to be raising the defense enunciated in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976). Fortunato was not only the general contractor on the worksite but also erected the guardrails and was responsible for maintaining them. Therefore, this defense is not available to Fortunato because it controlled the hazardous condition.

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However, because one allegation of this citation has been vacated, we reduce to $550 the penalty of $800 proposed by the Secretary and assessed by the judge.

B. Alleged Violation of 29 CFR 1926.500(b)(1)

The Secretary alleged that Fortunato violated 1926.500(b)(1) n5 by failing to guard a 16 X 12 foot floor opening. The compliance officer observed one of the Respondent's employees standing on a 4 X 4 that extended over the floor opening, which was located 30 feet above a solid surface. The employee was installing a platform over the floor opening so that other employees could [*9] later work from the platform while pouring concrete into an adjacent wall. It is undisputed that there was no perimeter guarding around the opening. Both Hahn and Sciortino testified that guardrails had previously been in place but had been removed because they would interfere with pouring the concrete. Fortunato's argument in its post-hearing memoranda and its brief on review is unclear. However, it appears to be arguing that an employer cannot be found in violation of a standard when it is in the process of achieving compliance with the standard. n6 The judge rejected this contention. He stated that there was "no evidence that the perimeter guarding was up" and that the Respondent should have at least provided alternative protection to its employees. n7 The judge found that the violation was serious because, if an employee fell thirty feet, serious injury or death could have "easily resulted." He assessed a penalty of $800.

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n5 The standard reads in pertinent part:

1926.500 Guardrails, handrails, and covers.

* * *

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. . . .

n6 Fortunato correctly contends that the platform would have served as a "cover," one of the two alternative methods of complying with the standard. See n. 5, supra.

n7 The judge's reasoning is unclear. However, to the extent it can be construed as a finding that guardrails had not previously been in place or that they were not removed in preparation for the pouring of concrete, we reverse that finding on the basis of the unrebutted testimony of Hahn and Sciortino, supra.

[*10]

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We reject the Respondent's contention but for different reasons. In Floyd S. Pike Electrical Contractors, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD P21,584 (No. 12398, 1977), aff'd, 576 F.2d 72 (5th Cir. 1978), the Commission held that a standard is applicable and is violated when employees engaged in work that will effectuate compliance with the standard are needlessly exposed to the hazard to which the standard is directed. In this case, the record establishes that guardrails around the perimeter of the opening had been removed prior to the inspection. Moreover, the record contains no contradiction of the compliance officer's testimony that the planks used to cover the floor opening could have been safely installed by sliding the planks under the guardrails. Clearly, Fortunato could have complied with the standard while performing its work. n8 Consequently, we affirm a violation of 1926.500(b)(1), and conclude that it is serious for the reason assigned by the judge. We also affirm the judge's assessment of an $800 penalty. We find the penalty appropriate in view of the [*11] gravity of the violation.

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n8 Fortunato also argues in effect that it was necessary to remove the guardrails in order to pour the concrete. However, once the platform was finished, the guardrails would no longer have been necessary and could have been removed.

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C. Alleged Violation of 29 CFR 1926.500(d)(1)

Citation 4 alleged that Fortunato violated 1926.500(d)(1) n9 because employees could fall to the ground through 12-foot gaps in the perimeter guarding on the second and third floors near the material loading area. Fortunato defended against this allegation on the ground that employees were prevented from falling through the 12-foot openings because employees who did step through the openings would step onto a platform with guardrails.

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n9 The standard reads in pertinent part:

1926.500 Guardrails, handrails, and covers.

* * *

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. . . .

[*12]

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The judge affirmed a serious violation of 1926.500(d)(1), finding that Fortunato failed to provide suitable guarding on the second and third floors adjacent to the material loading platform. He rejected Fortunato's defense, which he characterized as a contention that the openings in the guardrails were not 12 feet wide. The judge stated that the falling hazard posed a threat of serious injury to Fortunato's employees, but reduced the penalty to $250 because of the partial guarding.

Fortunato correctly argues on review that the judge misconstrued its defense. Fortuunato concedes in its brief that the openings in the guardrails were 12 feet wide. However, Fortunato asserts that the platform was adequately guarded and was adjacent to the openings. Accordingly, it argues that perimeter guarding between the floor and the platform was not needed to protect the employees.

We reject Fortunato's contention with respect to the third floor. The compliance officer testified that there was a loading platform adjacent to the second floor, but that there was not a platform on every floor. Neither Hahn nor [*13] Sciortino refuted this evidence. Hahn testified that he knew there was a platform at the second floor level, but did not recall if there was one at the third floor level. Sciortino testified that he believed the platform was on the third floor but that he was not certain. He indicated that it could have been on the second floor. Sciortino's testimony does not establish that there was a platform on the third floor. Rather, it supports the inference that there was only one platform, located on the second floor, as indicated by the compliance officer. Based on the preponderance of the evidence, see Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1954, 1978 CCH OSHD P23,033 at p. 27,481 (No. 16162, 1978), we find that the evidence supports the conclusion that there was only one platform and that it was located on the second floor. Because the evidence shows that there was no platform on the third floor and an employee could fall 30 feet to the ground through the 12-foot gap in the perimeter guarding on that floor, we affirm a serious violation of 1926.500(d)(1). However, we find a violation of 1926.500(d)(1) only with respect to the third floor. n10

[*14]

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n10 It is undisputed that the opening on the second floor was adjacent to an adequately guarded platform. However, whether the platform afforded protection to employees working on the second floor depends upon the size of the platform. There was conflicting testimony concerning the dimensions of the platform and the judge failed to recognize the existence of the conflicting testimony. He also gave no reasons for his implicit determination that the compliance officer's testimony on the dimensions of the platform was more credible than that of the Respondent's witnesses. This is not a situation where the Commission can make the necessary findings without the assistance of the judge. Compare C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978) with Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978). However, it is unnecessary to resolve this conflict inasmuch as the citation is affirmed with respect to the unguarded perimeter on the third floor.

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Furthermore, we affirm the judge's reduction of the proposed penalty to assess a penalty of $250 but for different reasons. The judge concluded that a penalty of $250 was appropriate because the standard was violated with respect to two floors but Fortunato provided partial protection on both floors. We conclude that a penalty of $250 is appropriate because the standard was violated on only one floor but no protection was provided against a fall through the 12-foot gap in the perimeter guarding on that floor.

II

The Nonserious Citation

A. Alleged Violation of 29 C.F.R. 1926.25(b)

Item 1 of Citation 1 alleged that combustible scrap and debris found near the "Helix entrance" to the garage and around the "shanties" were not removed at regular intervals in violation of 1926.25(b). n11 The compliance officer testified that he observed two 55-gallon drum containers overflowing with garbage, such as coffee cups, wrappers, and food. The drums were located near a coffee wagon. He further testified that employees complained to him that containers near the tool shed were full and that debris was scattered over the floor of the sheds. The [*16] compliance officer observed Fortunato's employees pass near the coffee wagon as they went to the tool sheds to obtain or return tools.

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n11 The standard reads as follows:

1926.25 Housekeeping.

* * *

(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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The judge affirmed a nonserious violation of 1926.25(b). He concluded that Fortunato was in violation of the standard because it was clear from the overflowing containers that "an insufficient number of receptacles" was provided to contain the garbage, even though the trash was regularly collected. He found that there was garbage around the coffee truck and the tool sheds and that these conditions created both a fire and a health hazard. The judge assessed no penalty due to the low gravity of the violation.

Fortunato argues that it was in compliance with 1926.25(b) because it removed the garbage "at regular intervals" within the meaning of the [*17] standard. n12 However, we do not reach this contention because we conclude that the cited standard is not applicable to the conditions cited by the Secretary and found by the judge. Section 1926.25(b) is one paragraph of the general housekeeping standard applicable to the construction industry. The purpose of 1926.25 is to prevent fire, health, and tripping hazards caused by the accumulation of different types of debris on construction sites. Each paragraph deals with specific hazards caused by particular types of debris. Paragraph (a) of 1926.25 n13 is concerned with tripping hazards caused by scrap lumber and debris generated by construction work. The areas within a construction site identified in paragraph (a) of 1926.25 are areas where employees walk and work. Therefore, if debris is present a tripping hazard exists. Paragraph (b) is directed to fire hazards caused by the accumulation of combustible debris generated from construction activities, e.g., scrap lumber and packing crates. Paragraph (c) n14 pertains to the elimination of fire and health hazards caused by the accumulation of garbage and debris. In this case, the compliance officer stated in response to [*18] the judge's questioning that the type of debris he observed was garbage, such as good, wrappers, and paper cups, not debris generated by construction. Accordingly, 1926.25(c), rather than 1926.25(b), is applicable to these conditions.

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n12 Fortunato also contends that there was no evidence establishing the presence of debris around "the Helix entrance" and "the shanties", and that the violation affirmed by the judge therefore varied from the violation alleged in the citation. However, the compliance officer testified that the coffee wagon was located near the Helix entrance and the tool sheds, and that garbage was strewn on the ground near the coffee wagon. Also, Fortunato's employees complained to the compliance officer that there was debris on the floor of the tool sheds, which were the "shanties" referred to in the citation. We conclude that the record supports the citation's allegation and therefore we reject Fortunato's contention.

n13 The standard reads as follows:

1926.25 Housekeeping.

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

n14 The standard reads as follows:

1926.25 Housekeeping.

* * *

(c) Containers shall be provided for the collection and separation of waste, trash, oily and used rags, and other refuse. Containers used for garbage and other oily, flammable, or hazardous wastes, such as caustics, acids, harmful dusts, etc. shall be equipped with covers. Garbage and other waste shall be disposed of at frequent and regular intervals.

[*19]

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If an alleged violation of a standard other than that cited by the Secretary has been tried by the express or implied consent of the parties, the Commission must amend the pleadings to conform to the evidence under Rule 15(b) of the Federal Rules of Civil Procedure. n15 McLean-Behm Steel Erectors, Inc., 78 OSAHRC    , 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978); John & Roy Carlstrom, d/b/a Carlstrom Brothers Construction, 78 OSAHRC    , 6 BNA OSHC 2101, 1978 CCH OSHD P23,155 (No. 13502, 1978).

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n15 That Rule reads in pertinent part:

Rule 15. Amended and Supplemental Pleadings.

* * *

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by the 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. . . .

[*20]

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Fortunato did not object to the introduction of any evidence relevant to the factual issue of whether "[g]arbage and other waste [was] disposed of at frequent and regular intervals." Section 1926.25(c). In fact, it affirmatively introduced evidence on the nature of the fire hazard, the type of refuse involved, and the frequency of the garbage removal. n16 The relevant provisions of paragraphs (b) and (c) establish essentially the same requirements for different types of debris. Therefore, it is apparent that the defenses that could be asserted against an alleged violation of either paragraph are the same. Under these circumstances, we conclude that Fortunato would not have tried the issue any differently if an alleged violation of 1926.25(c) had been cited initially. We therefore conclude that Fortunato would not be prejudiced by an amendment to 1925.25(c) and impliedly consented to trial of an alleged violation of that standard. See McLean-Behm Steel Erectors, Inc., supra. Accordingly, we amend the citation and the complaint to allege a violation of 1926.25(c).

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n16 The Commission has relied upon a party's introduction of evidence relating to an unpleaded issue as a factor in finding implied consent to the trial of that issue, see, e.g., McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD P21,972 (No. 12618, 1977); Kaiser Aluminum & Chemical Corp., 76 OSAHRC 52/C10, 4 BNA OSHC 1162, 1975-76 CCH OSHD P20,675 (No. 3685, 1976), aff'd on reconsideration, 77 OSAHRC 39/E8, 5 BNA OSHC 1180, 1977-78 CCH OSHD P21,692 (1977), and as a factor in finding that a party would not be prejudiced by the amendment. See, e.g., Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD P20,576 (No. 4537, 1976).

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Through the introduction of bills from its trash collector and the testimony of its shop steward and safety officer, Sciortino, Fortunato established that it removed the garbage daily. However, under the circumstances daily removal was inadequate to meet the requirements of the standard. Removal of garbage at "frequent and regular [*22] intervals" requires removal as often as is necessary to prevent garbage from overflowing. Since this requirement was not met, we conclude that Fortunato violated 1926.25(c).

However, the violation is not properly characterized as a nonserious violation. Fortunato's failure to comply with the requirements of the standard did not pose a direct or immediate hazard to safety or health. See 9(a) of the Act, 29 U.S.C. 658(a). We reject the judge's finding that there was a health hazard because that issue was not tried by the parties. n17 With respect to the fire hazard, the judge relied primarily upon the compliance officer's testimony that the garbage was combustible. However, the evidence shows that there were containers for the garbage, albeit an insufficient number to adequately contain the amount of garbage generated by the employees, and that the containers were emptied daily at the end of the work day. The record further establishes that employees often emptied the containers when they became full before the end of the day. This evidence concerning the daily removal of garbage indicates that the overflow conditions did not exist for a sufficient period of time to [*23] create a significiant fire hazard. Consequently, the violation had a negligible relationship to safety or health because the probability of a fire was remote. Accordingly, we affirm a violation of 1926.25(c) but only as a de minimis violation.

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n17 Fortunato did not have an opportunity to rebut the Secretary's evidence on the alleged health hazard because the Secretary's objection to Fortunato's cross-examination of the compliance officer concerning the health hazard was sustained. Therefore, we find that Fortunato did not have a fair opportunity to defend against the characterization of the violation based on an alleged health hazard. Clearly, Fortunato would be prejudiced by an amendment to include the issue of the alleged health hazard. Consequently, we hold that there was no implied consent to the trial of the health hazard issue under Fed. R. Civ. P. 15(b). See McLean-Behm Steel Erectors, Inc., supra.

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B. Alleged Violation of 29 CFR 1926.150(e)(1)

The Secretary alleged that Fortunato [*24] violated 1926.150(e)(1) n18 by not providing a fire alarm system at the garage construction site. The parking garage was being built in two sections, one of which was completed at the time of inspection. A chain-link fence with a 44 to 48-inch wide gate separated the two sections of the garage. Sciortino testified that the employees could "walk through" the fence in some places while in other places there was no fence at all. The compliance officer testified that he did not know whether the gate was unlocked at the time of his initial inspection. It was undisputed that there was no alarm system in the uncompleted section of the garage. It was also undisputed that the completed section, which was in use, had an operable fire alarm system that included audible alarm bells in the garage and an alarm that rang at fire department headquarters at the airport. There was at least one fire alarm on every floor and on the ground level in this section of the garage. However, the specific location of each fire alarm was unclear. In addition, on some floors in the completed section there were telephones with a direct connection to the fire department. There was also a public telephone [*25] near the gate at the entrance to the worksite.

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n18 The standard reads as follows:

1926.150 Fire Protection.

* * *

(e) Fire alarm devices. (1) An alarm system, e.g., telephone system, siren, etc., shall be established by the employer whereby employees on the site and the local fire department can be alerted for an emergency.

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The judge affirmed a nonserious violation of 1926.150(e)(1), rejecting Fortunato's contention that the alarm system in the completed section of the garage served the entire worksite. The judge found that the permanent alarm system was not accessible to the worksite, relying on "uncertainty" in the testimony concerning the location of the alarms and the "vague" testimony concerning whether the gate in the chain link fence was unlocked. The judge also relied on testimony introduced by Fortunato relating to two incidents where Fortunato notified employees by means of whistles and shouting to evacuate the worksite. The judge concluded that this evidence was contrary to Fortunato's [*26] assertion that the alarm system served the entire worksite.

On review, Fortunato reiterates its contention that the alarm system in the completed section of the garage adequately serviced and was accessible to the worksite. We agree with this contention. In Grossman Steel & Aluminum Corp., 78 OSAHRC 85/A2, 6 BNA OSHC 2020, 1978 CCH OSHD P23,097 (No. 76-2834, 1978), the Commission held that 1926.150(e)(1) requires only that an employer have an alarm system reasonably calculated to notify both employees and the fire department so that an area can be evacuated and appropriate action can be taken in the event of an emergency. In Grossman, the Commission held the requirements of the standard were satisfied by an alarm system consisting of an on-site horn signal to alert employees and reliance upon the fire department of a hospital located approximately 100 feet from the construction site.

In this case, Fortunato relied upon a combination of two methods for its fire alarm system. First, Fortunato effectively used whistles and shouting to notify employees and evacuate the garage when relatively minor hazards were encountered. This is demonstrated by its use of this system [*27] to evacuate the garage in ten minutes on one occasion involving a bomb threat and on another occasion involving a trash fire. Second, Fortunato relied upon the availability of the fire alarm system in the completed section of the garage to notify the fire department and employees. We reject the judge's reasons for finding that the alarm system does not meet the requirements of the standard. Sciortino's testimony that the sections of the garage were "only separated by this fence that you could walk through and in some places, we don't even have a fence" was not refuted by the compliance officer. Indeed, the compliance officer admitted that he did not know whether the gate on the ground level was unlocked during his initial inspection and, during his follow-up inspection, he observed that the gate was unlocked. Furthermore, there were alarms or telephones reasonably close to all work areas. In fact, the compliance officer and the Respondent's expert witness estimated that there was a ground level alarm between 110 and 200 feet from Fortunato's trailers. In addition, there was at least one fire alarm on each floor, at least one telephone directly connected to the fire department [*28] on the ground level in the completed section of the garage, and a public telephone near the entrance to the worksite. The testimony establishing the presence of these alarms and telephones is neither ambiguous nor contradicted and it is sufficient to establish the existence of a system meeting the requirements of the standard. Therefore, it is immaterial that the record is unclear as to the number and location of other telephones and alarms in addition to those described above.

It is also immaterial that Fortunato did not use these alarms or telephones on the two occasions involving the bomb threat and the trash fire. The Secretary did not challenge the assertion of Fortunato's witnesses that the alarms were not activated because it was not necessary to notify the fire department on those occasions and evacuation of the work area could be and was rapidly accomplished by means of whistling and shouting to employees. No evidence was offered to show that Fortunato would not use the electrical alarms in a situation where shouting, whistling and reliance upon its own fire-fighting equipment would be an inadequate response to the hazard.

Based on the present record, we conclude that [*29] the alarm system in the completed section of the garage was sufficiently proximate and accessible to employees working in the uncompleted section of the garage to satisfy the standard's criteria as set out in Grossman. n19 However, the hearing in this case and the opportunity to file briefs with the Commission predated the issuance of our decision in Grossman. Therefore, the Secretary has not had an opportunity to argue the application of the principles enunciated in that decision to the facts of this case. Accordingly, this item of the citation is vacated unless the Secretary, within ten days of the issuance of our decision, requests an opportunity to submit a brief on this issue.

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n19 We need not reach Fortunato's contention that the use of whistles and shouting would in itself be sufficient to prevent andy hazard to employees since we find that the alarm system complies with the requirements of the standard. However, we note that the use of whistles alone would not meet the standard's requirement that there be a means to notify the fire department. Also, in some circumstances whistles and shouting may be inadequate to notify employees with sufficient speed to avoid injury.

[*30]

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III

Accordingly, it is ORDERED that the citations for serious violations of 1926.500(f)(1)(iv), 1926.500(b)(1), and 1926.500(d)(1) as modified are affirmed, and penalties of $500, $800, and $250, respectively, are assessed. Item 1 of citation 1 is affirmed as amended to a de minimis violation of 1926.25(c). Item 2 of citation 1, alleging a violation of 1926.150(e)(1), is vacated unless, within ten days of the issuance of our decision, the Secretary of Labor requests the opportunity to submit a brief seeking reconsideration of our decision and order with respect to that item.

It is so ORDERED.

CONCURBY: CLEARY; BARNAKO (In Part)

CONCUR:

CLEARY, Chairman, CONCURRING:

I concur in the result in this case.

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner; concurring in part and dissenting in part:

I concur with the Commission majority, for the reasons stated in Commissioner Cottine's opinion, that Fortunato violated the standards at 1926.500(f)(1)(iv), 1926.500(b)(1) and 1926.500(d)(1), and that Fortunato's alleged violation of 1926.150(e)(1) should be conditionally vacated.

I also agree with the majority that [*31] the Secretary's cited 1926.25(b) allegation is inapplicable but I dissent from the majority's action in amending, on its own motion, the 1926.25(b) allegation to 1926.25(c) and then affirming that allegation as a de minimis violation. This case was tried on the basis that 1926.25(b) was the applicable standard. Although Fortunato raised a question at the hearing about the possible inapplicability of 1926.25(b), the Secretary objected to Fortunato's attempt to cross-examine the compliance officer about the possible applicability of a different standard. In sustaining the Secretary's objection, the judge stated:

We are only interested in the matters before me. The matter before [me] is pertaining to section 29 C.F.R. 1926.25(b).

By amending to 1926.25(c) at this stage of the case without having been asked to by either party, the Commission majority finds Fortunato in violation of a standard whose applicability was, as outlined above, impliedly rejected by the Secretary at the hearing. In McLean-Beam Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978) (dissenting opinion), appeal filed, No. 79-1073 (5th Cir., [*32] Jan. 9, 1979), I stated that a respondent cannot impliedly consent to the trial of an issue where it is not clear that an opposing party is actually attempting to raise another charge. The Secretary's express statement that D. Fortunato was cited under 1926.25(b) and that any other standard is not relevant, makes clear that he was not attempting to litigate whether Fortunato violated 1926.25(c). In such circumstances, I would follow my dissenting opinion in McLean-Behm Steel Erectors and would not amend. See also Southwestern Bell, 78 OSHRC 100/D8, 6 BNA 2130, 1978 CCH OSHD P21,150 (No. 14761, 1978). Since I agree with my colleagues that the originally cited standard is inapplicable, I would vacate the 1926.25(b) allegation.