W. B. MEREDITH II, INC.

OSHRC Docket No. 810

Occupational Safety and Health Review Commission

June 7, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: On October 25, 1972, Judge Joseph L. Chalk issued his decision and order in the present case, vacating all contested items of a citation for non-serious violation and all items of a citation for serious violation.

On November 15, 1972, review of the decision and order was directed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

The Commission has reviewed the entire record in this case, including the exhibits and briefs of the parties. We adopt the Judge's decision to the extent that it is consistent with the following.

Respondent, a general contractor, was issued two citations on April 11, 1972. The first citation alleged three serious violations and the second citation alleged fourteen non-serious violations of the Act. Total penalties of $1,750 were proposed by the Secretary.

Review was directed on the general issue of whether the Judge had properly concluded that respondent was not in violation of the Act with respect to all contested items of both citations. In order to resolve this question, [*2] we must examine each item individually.

A. ALLEGED SERIOUS VIOLATIONS

Respondent was charged with failing to comply with 29 CFR 1926.401(i) by not preventing an electrical junction box from being accessible to unauthorized personnel. The Judge ruled that the Secretary failed to prove a violation with respect to this item. We agree for the reasons that he has assigned.

The other two items of the citation for alleged serious violation are related. Respondent was cited for non-compliance with 29 CFR 1926.500(b)(1) and (d)(1) by failing to provide standard railings around an elevator shaft and an open-sided floor more than six feet above ground level. For example, in the case of the elevator shaft, the work being done was "forming around the opening." The record indicates that railings were customarily in place except when actual work in the area would be impossible with the railings in position. There is no evidence that the railings were taken down for periods of time longer than that needed to complete work in the area. Under these circumstances, we agree with the Judge's vacating of these two items.

b. ALLEGED NON-SERIOUS VIOLATIONS

The citation for non-serious [*3] violation charged respondent with 14 non-serious violations. Items 7 and 14 were abandoned by the Secretary in his complaint. Items 1, 2, 3, 8, 12 and 13 were originally contested, but respondent subsequently moved to withdraw its notice of contest as to these items. The motion was granted, and we approve that action. This leaves only items 4, 5, 6, 9, 10 and 11 in dispute.

Items 9 and 10, listed separately in the citation, were consolidated by the Secretary in his complaint. The two items of the citation alleged a failure to comply with 29 CFR 1926.401(j)(3) [electrical extension cords constituted a tripping hazard] and 29 CFR 1926.402(a)(11) [electrical cords left in work area were exposed to damage]. The consolidated charge alleged that "work spaces and walkways were not kept clear of electrical extension cords so that hazards were created to employees," in contravention of 29 CFR 1926.401(j)(3). Items 9 and 10 were included with those items to which respondent moved to withdraw its notice of contest. Although originally granted by the Judge, the Judge later sua sponte reversed his earlier granting of the motion to withdraw, whereupon he vacated these items. [*4] The Judge concluded that the amendment by the Secretary was impermissible. We disagree. The law is clear and Commission precedent well-settled that administrative pleadings under the Act are liberally construed and very easily amended. See National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). Consequently, we reverse the Judge's vacating of this charge and grant respondent's motion to withdraw as to this item.

Item 4 alleged a failure to comply with 29 CFR 1926.252(a) in that an employee dropped materials more than 20 feet to the ground outside of a building without using an enclosed chute. We agree with the Judge's determination that there is insufficient evidence to establish a violation.

Item 5 alleged a failure to comply with 29 CFR 1926.252(c) in that scrap and waste material was not removed from the work area. Again, we agree with Judge Chalk that a violation has not been established with respect to this item.

Item 6 alleged a failure to comply with 29 CFR 1926.350(a)(9) in that compressed gas cylinders, which were not being hoisted or carried, were not secured in an upright position. Although the citation distinguished between [*5] cylinders inside the building and those in the parking lot, this differentiation was replaced by the general reference to "unsecured cylinders" in the complaint. Judge Chalk erroneously held that this was an impermissible amendment. See discussion of items 9 and 10 supra. The Judge further held that the empty cylinders in the parking lot were not covered by the standard and that there was no evidence of exposure with respect to the cylinders belonging to a subcontractor that were inside the building. A majority believes the Judge was in error in holding that the standard did not apply to empty cylinders, and therefore, the violation as to the cylinders in the parking lot is affirmed. Unsecured cylinders pose a tripping hazard cognizable under the standard. A majority of the Commission affirms the Judge's finding that there was insufficient proof of exposure and, therefore, no violation as to the cylinders inside of the building. n1

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n1 Consistent with the views expressed in J.E. Roupp & Co. and Denver Dry Wall Co., (consolidated Nos. 146 & 147) (April 15, 1974) (dissenting opinion), Commissioner Cleary believes that the burden of proving exposure has been wrongly allocated to the Secretary. In addition, Commissioner Cleary believes there is evidence of potential exposure. See Roupp, supra and Home Supply Co., No. 69 (March 28, 1974) (Cleary, Commissioner, concurring in part and dissenting in part). For the foregoing reasons, Commissioner Cleary would find a violation as to the indoor as well as outdoor cylinders.

[*6]

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Item 11 alleged a failure to comply with 29 CFR 1926.450(a)(2) in that defective ladders were in use on the worksite. The Judge vacated this item on the grounds that the Secretary failed to prove exposure of respondent's employees. A majority of the Commission agrees with the Judge's holding. n2

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n2 Commissioner Cleary believes that once the Secretary makes out a prima facie case by proving non-compliance with a standard, the burden shifts to respondent to present rebuttal evidence, including evidence of a lack of actual or potential exposure. See note 1, supra. For these reasons he would find a violation of this item.

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With respect to the penalties, section 17(j) of the Act provides that the Commission shall give due consideration to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations. Having considered these factors, we have determined [*7] that the $25 penalty proposed by the Secretary for item 6 is appropriate based on the weight that he assigned to the factors.

Accordingly, it is ORDERED that respondent's motion to withdraw its notice of contest as to items 1, 2, 3, 8, 9, 10, 12 and 13 of the citation for non-serious violation is granted. Items 1, 2, and 3 of the citation for serious violation and items 4, 5, and 11 of the citation for non-serious violation and the penalties proposed therefor are hereby vacated. Item 6 of the citation for non-serious violation is affirmed and a penalty of $25 for this item is hereby assessed.

[The Judge's decision referred to herein follows]

CHALK, JUDGE, OSAHRC: Respondent, a general contractor in the construction industry whose business affects the commerce of the United States, was duly charged in a Citation for Serious Violation (designated Number 1) with three alleged violations of the Occupational Safety and Health Act of 1970, and in a Citation (also designated Number 1) with fourteen alleged nonserious violations of said Act. Penalties for the three alleged serious violations and for four of the alleged nonserious violations in the aggregate of $1,750.00 were proposed [*8] by the Secretary. The two Citations, the proposed penalties, and the periods of abatement were all duly contested by Respondent.

The periods of abatement were not in issue at the hearing, however, for the evidence established that all alleged violations were satisfactorily corrected by the day following the day of the inspection. Also, item numbers 7 and 14 of Citation Number 1 for alleged nonserious violations were not at issue at the hearing, for they were omitted from the Complaint, and must therefore be considered abandoned by the Secretary (see Secretary of Labor v. Superior's Brand Meats, Inc., Docket No. 538, July 6, 1972). Finally, at the commencement of the hearing, Respondent moved to withdraw its Notice of Contest as to item numbers 1, 2, 3, 8, 9, 10, 12 and 13 of Citation Number 1 for alleged nonserious violations, none of which involved any proposed penalties. In this regard, item numbers 9 and 10 of this Citation were consolidated into one charge in the Secretary's Complaint alleging a violation of 29 CFR 1926.401(j)(3).

As the Secretary did not object to Respondent's motion to withdraw its contest as to the items enumerated, and said items had [*9] been abated with appropriate assurance of continuing compliance with the standards violated, I granted Respondent's motion at the hearing. Thus, these items, too, were not at issue at the hearing. Upon further study of this ruling, however, in light of the transcript and the standards in question, I herewith reverse my ruling on the motion as to item numbers 9 and 10, for the reasons that follow, and order those charges vacated.

Item 9 of the Citation in question, before amendment, alleged that two temporary electric extension cords were "left lying on the floor of work area and provided a tripping hazard," in violation of 29 CFR 1926.401(j)(3). Item 10 of the Citation in question, before amendment, alleged that seven such cords were "left lying in work area exposed to damage," in violation of 29 CFR 1926.402(a)(11). The consolidated charge alleged that "work spaces and walkways were not kept clear of electrical extension cord so that hazards were created to employees," in violation of 29 CFR 1926.401(j)(3). 29 CFR 1926.401(j)(3) applies to "heavy duty electric cords" used in connection with "temporary lights," whereas 29 CFR 1926.402(a)(11) does apply to temporary [*10] electric extension cords.

The change between the charge alleged in item 9 of the Citation in question and the charge alleged in the Complaint is patent, for the former alleged a tripping hazard whereas the latter, in accordance with the objective of 29 CFR 1926.401(j)(3), alleged hazards stemming from "damage[d]" heavy duty electric cords, obviously limited to electrical hazards such as shock, electrocution or perhaps fire. Neither of the two regulations in issue pertain in any way to tripping hazards.

On the other hand, were 29 CFR 1926.401(j)(3) applicable to extension cords, the amended charge might be declared legally sufficient as to the cords involved in item 10 of the Citation in question, for that regulation does require that heavy duty electric cords be kept clear of workspaces and walkways, as well as "other locations" where they would be exposed to damage. However, even a cursory examination of the regulation that controls extension cords, 29 CFR 1926.402(a)(11), reveals that it contains no such prohibition. Rather, it provides only that such cords shall be protected against accidental damage "as may be caused by traffic, sharp corners, or projections and pinching [*11] in doors or elsewhere." I believe that the reasoning applicable to the distinction between the two regulations is clear, for extension cords would be of little, if any, use to an employee if the employee were prohibited from running them through and into those areas in order to do what he was hired to do.

In sum, the Complaint amendment to item 9 of the Citation in question not only represented such a radical change from the basic charge as to deny the Secretary the right to further pursue the charge, but it operated to allege an act that was not in violation of the applicable regulation. In either respect, item 9, as amended, of this Citation must be vacated and Respondent's motion to withdraw its notice of contest thereto must be denied. The same result is required as to item 10, as amended, because that amendment, too, operated to allege an act that was not in violation of the applicable standard.

Inherent in my reasoning on amendments of this character is my belief in the concept, one not previously decided judicially, to the best of my knowledge, that such an amendment is impermissible because it radically changes or departs from the basic allegations in the Citation. [*12] n1 The same limitation, moreover, must be held to prevail over decisions rendered by judges. Permissible amendments to Citation charges, by way of the Complaint, a motion, or decision, on the other hand, must be limited either to those abandoning charges in the Citation, or to those that serve to clarify or correct charges in the Citation without converting them into different charges.

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n1 I note that Judge Harris posed the question of the legality of such an amendment in Secretary of Labor v. U.S. Homes, Inc., Sandler-Bilt Homes Division, Docket No. 367, September 25, 1972, but did not have to resolve it in that setting.

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Finally, in reaching my conclusions on the amendments here, I have not overlooked Rule 15 of the Federal Rules of Civil Procedure, which, if applicable, would seem to do violence to my views. That Rule pertains to practice where the complaint is the basic charge. It was not devised in contemplation of a Citation, literally a creature of the statute under which we function. Under [*13] that statute, certain basic due process rights enure to the benefit of an employer charged with a violation of the Act, none the least of which is his right to be served with a Citation, issued within six months of the date of the inspection, and his right to signify his contest of the Citation within fifteen working days after he receives it. To permit amendments, such as attempted here, which amount to the preference of new charges, thwarts the will of Congress and unlawfully deprives the employer of those rights to which he is entitled as a matter of law. In this regard, I perceive no real distinction between the issue decided in Manhattan General Equipment Company v. Commissioner of Internal Revenue and Collier Service Corporation v. Same, 297 US 129, 56 S. Ct. 397 (1936), and that considered here. In that decision, the Supreme Court held:

The power of an administrative office or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law, for no such power can be delegated by Congress, but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which [*14] does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity. Lynch v. Tilden Product Co., 265 U.S. 315, 320-322, 44 S. Ct. 488, 68 L. Ed. 1034; Miller v. United States, 294 U.S. 435, 439, 440, 55 S. Ct. 440, 79 L. Ed. 977, and cases cited. And not only must a regulation, in order to be valid, be consistent with the statute, but it must be reasonable. (Emphasis added).

In sum, the amendments sought to be made here are "out of harmony" with the Act, and cannot be accomplished except through the issuance of a new or amended Citation. Only in this way will the statutory procedures decreed by Congress be effectuated.

I

The charges at issue at the hearing as amended by the Complaint are as follows:

ALLEGED SERIOUS VIOLATIONS

29 CFR 1926.401(i), formerly 29 CFR 1518.401(i) -- Failure to "take every [precaution] to make the temporary 220-volt power supply junction [box] on the Colley Avenue side of the worksite inaccessible to unauthorized personnel."

29 CFR 1926.500(b)(1), formerly 29 CFR 1518.500(b)(1) -- Failure to provide a standard railing, as defined in 29 CFR 1926.500(f), "around an elevator shaft which was open on all [*15] four sides."

29 CFR 1926.500(d)(1), formerly 29 CFR 1518.500(d)(1) -- Failure to provide a standard railing, as defined in 29 CFR 1926.500(f), "on the side of a floor which was more than six feet above the ground level."

ALLEGED NONSERIOUS VIOLATIONS

Item #4, 29 CFR 1926.252(a), formerly, 29 CFR 1518.252(a) -- "An employee dropped materials more than 20 feet to the ground outside of the building without use of en enclosed chute."

Item #5, 29 CFR 1926.252(c), formerly 29 CFR 1518.252(c) -- "Scrap lumber, waste material and rubbish were not removed from the immediate work area as the work progressed."

Item #6, 29 CFR 1926.350(a)(9), formerly 29 CFR 1518.350(a)(9) -- "Compressed gas cylinders, which were not being hoisted or carried, were not secured in an upright position."

Item #11, 29 CFR 1926.450(a)(2), formerly 29 CFR 1518.450(a)(2) "Wooden ladders in use on the worksite had broken or missing rungs, split runners, and broken and split top steps."

The respective regulations in issue read as follows:

29 CFR 1926.401(i) -- Construction site. Every precaution shall be taken to make any necessary open wiring inaccessible to unauthorized personnel. Lighting on barricades, [*16] fences, or sidewalks coverings shall be encased in a metal raceway.

29 CFR 1926.500(b)(a) -- Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toe board or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

29 CFR 1926.500(d)(1) -- 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)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

29 CFR 1926.252(a) -- Whenever materials are dropped to any point lying outside the exterior walls of the building, an enclosed chute of wood, or equivalent material, shall be used.

29 CFR 926.252(c) -- All scrap lumber, waste material and rubbish [*17] shall be removed from the immediate work area as the work progresses.

29 CFR 1926.350(a)(9) -- 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.

29 CFR 1926.450(a)(2) -- The use of ladders with broken or missing rungs or steps, broken or split side rails, or other faulty or defective construction is prohibited. When ladders with such defects are discovered, they shall be immediately withdrawn from service. Inspection of metal ladders shall include checking for corrosion of interiors of open end hollow rungs.

II

The inspection of Respondent's worksite in Norfolk, Virginia, was conducted by a compliance officer, hereinafter referred to as inspector, on February 28, 1972, starting around 10:15 a.m. or 10:30 a.m. Respondent, a general construction contractor employing an average of one hundred employees and having an average dollar volume of business of approximately five and one-half million dollars, was in the process of constructing a five-story reinforced concrete frame building at the worksite for the United States Public Health Service. [*18] The number of Respondent's employees working daily at the site ranged from six to fifteen. Subcontractors were performing work at the jobsite at the time of the inspection. The inspector was accompanied on the inspection by Respondent's job supervisor. He was also accompanied during most of the inspection by another compliance officer, no longer employed by the Secretary, who took some of the pictures introduced into evidence. This second compliance officer did not appear as a witness at the hearing.

POWER SUPPLY JUNCTION BOX

In describing the 220-volt power supply junction box located on a pole outside the building being constructed, and the reasons for citing Respondent, the inspector first testified in terms of a tripping hazard resulting from the "maze" of wires hanging from it and then testified that it was "connected by naked wire, naturally, exposed," that it did not have any cover on it, and that it was readily accessible to unauthorized persons. When asked on cross-examination to clarify these statements, he first testified that the "naked wires" existed where the wires connected with the terminals, but then he admitted that the terminals could have been located inside [*19] the junction box, apparently completely shielded or protected by the box itself Later, still on cross-examination, he admitted that he was unable to say "at this time" whether or not the terminals were located on the outside of the box. He also stated that the box was a "fuse type" box, that he was informed that the fuses were removed at night, and that as the box had no door, unauthorized employees, or "a child" or "some intoxicated persons" could suffer harm by inserting a finger in the fuse socket, described by him as a "hot connection," at a time when the fuses were not in place. However, he was unable to say that anyone who testified that the box was of the circuit breaker type was in error. Finally, he admitted that he made no inquiry as to who was or was not authorized access to the junction box.

In testifying, the inspector appeared to rely entirely upon a photograph of the junction box admitted in evidence. His admission that the photograph was "too dark" to support his statements about the naked wires was eminently proper. In fact, one can not even determine from the photograph whether the junction box in question was of the fuse type or of the circuit breaker [*20] type.

Both the president of Respondent corporation and the job supervisor testified that the junction box was a circuit breaker type, not fuse type, approved by both the City of Norfolk electrical inspector and the Power Company, and that all employees on the job were authorized to use it whenever they had need of electrical power for their tools such as saws and drills. All terminal connections to the box were encased within the box itself, and the only exposed parts were circuit breaker switches that were described by the supervisor as being essentially no different than on and off switches found in homes and other buildings. The switches were made of bakelite and were in turn covered by a steel plate through which the end of the switch protruded. There was an outer cover or door that encased the switches themselves, but this cover or door was always removed during the day so that Respondent's and the subcontractors' employees would have ready access to the on and off switches when they had need of electrical power. Receptacles were located on the pole just below the box into which extension cords could be plugged.

While the objective of 29 CFR 1926.401(i) is somewhat [*21] obscure and perhaps open to question, particularly as it relates to the subject matter of the subpart itself dealing with grounding and bonding, the issue need not be resolved in this instance, for the charge, both in its original form and as amended, merely alleges in effect that Respondent violated the regulation simply by not making the junction box inaccessible to unauthorized personnel. As such act is not proscribed by the regulation, nor any other regulation to my knowledge, no violation is alleged as a matter of law. Accordingly, item number 1 of the Citation for Serious Violation, and the penalty proposed therefor, must be vacated.

Although not really germane, I note that the Secretary failed to prove that there were any employees of Respondent working on the jobsite who were not authorized access to the box. Also, after thoroughly studying this record, I must confess my puzzlement over the fact that the Secretary devoted much effort, albeit through the medium of vascillating testimony, toward trying to establish that the junction box was defective and dangerous, when these factors were not alleged in the charge.

FAILURE TO PROVIDE STANDARD RAILING

Because of the similarity [*22] of the two alleged violations, item numbers 2 and 3 of the Citation for Serious Violation will be considered together.

The inspector observed the absence of standard railings on the fourth floor level, both with regard to an open elevator shaft and "one section" of the outside edge of the building. Employees were in the area, but he did not know or ascertain what their work assignments were.

The supervisor testified that the standard railing around the elevator shaft had been taken down that morning because the carpenters were preparing to "form up around this opening." According to him, the operation was "in progress at the time of the inspection." One of Respondent's employees confirmed that he was working on the shaft at the time and that a standard railing had been there earlier that morning before the work started.

Although the supervisor was not present when a picture was taken of the opening at the edge of the building, he believed that the masons were preparing to put up a window sill wall because the picture shows that mortar boxes were there. He further testified that inspections were made every morning and night, and even during the workday to insure that [*23] guard railings are replaced after work in the area is completed. The railing had been there that morning. The employee who testified about the elevator shaft opening was present and in the picture that was taken of the opening at the edge of the building. He stated that at the time, the masons were preparing to start work and that a guard railing had been there prior to that time. The president of the company testified that the guard railings had to be taken down when work was in progress at both the elevator shaft and the edge of the building, otherwise the work being done would be impeded.

While there can be no question concerning the absence of the railings at these two openings at the time of the inspection, I conclude that it would be unreasonable to hold that their absence constituted a violation of the standards in question when it was clearly shown that they had to be removed in order to perform the work required. As the Secretary's evidence fails to rebut this fact or to establish that no one was working there at the time, items 2 and 3 of the Citation for Serious Violation and the penalties proposed therefor must be vacated (see Secretary of Labor v. [*24] Mohawk Manufacturing Corp., Docket No. 608, June 6, 1972).

DROPPING MATERIALS OVER SIDE OF BUILDING WITHOUT A CHUTE

The inspector testified that as he was driving his automobile on the street, approaching the jobsite, he observed an unidentified "worker" on the fourth or fifth floor pushing scrap metal, other materials and small blocks of cement over the side of the building with a board attached to a pole. The workman was not using a chute, as required by the standard. The inspector thereafter qualified his statements by admitting that he later saw a pile containing the identified objects into which the sweepings must have fallen, that what he did see was a lot of dust containing some solid objects, and that he was a block, or "maybe a couple of blocks" away and "around the corner" when he made the observation.

One of Respondent's employees who had been sweeping up dust and small rocks on the fourth floor near the edge of the building preparatory to erecting studs and bracing for the floor above, testified that he swept the debris toward the center of the floor and not over the side. He was using a broom and was so occupied sometime just prior to the beginning [*25] of the inspection.

As I pointed out in Secretary of Labor v. Sun Shipbuilding and Drydock Company, Docket Number 268, September 27, 1972,

The Secretary must support his allegations in any case with substantial evidence, that is with evidence that affords a substantial basis of fact from which a fact in issue can reasonably be inferred (Administrative Procedure Act, 5 USCA 556(d); NLRB v. Columbian Enameling and Stamping Company, 306 US 292, 59 S. Ct. 501, 83 L. Ed. 600 (1939); See Consolidated Edison Company v. NLRB, 305 US 197, 59 S. Ct. 206, 83 L. Ed. 126 (1938)). He may not support any part of his case on suspicion, conjecture, or speculation ( Troutman v. Mutual Life Insurance Co., 125 F2d 769 (6th Cir; 1942)).

Only conjecture could fill the gaps in the Secretary's case in this instance.

Not only did the alleged "worker" remain unidentified, but apparently no attempt was made to identify him, to locate the board attached to a pole that he allegedly used, or to locate the place in the building where the incident might have occurred, or to determine whether any other persons observed the occurrence. In fact, for ought this record shows, the occurrence [*26] could have been an accident which Respondent could not reasonably have foreseen, or it could have been an isolated occurrence by an intruder, or one of Respondent's employees or one of a subcontractor's employees strictly in contravention of Respondent's safety directives that were otherwise enforced, which, again, Respondent could not reasonably have foreseen.

The violation alleged in item 4 of Citation number 1 (nonserious violations), accordingly, is not supported by substantial evidence and must therefore be vacated, along with the penalty proposed therefor. ( Secretary of Labor v. Sun Shipbuilding and Drydock Co., supra; see Secretary of Labor v. Clements Paper co., Docket No. 419, June 21, 1972, and Secretary of Labor v. Ellison Electric, Docket No. 412, June 7, 1972).

FAILURE TO REMOVE SCRAP LUMBER, WASTE MATERIAL AND RUBBISH FROM WORK AREA

According to the inspector's testimony, he observed scrap lumber, waste material and "other rubbish lying about." He identified two photographs as depicting the conditions he observed, but on cross-examination, he admitted that the "debris" portrayed in one photograph was actually building materials. [*27] He was of the opinion that even building materials could be classified as "debris" and could constitute a violation of the standard.

Respondent's president, its supervisor and another employee testified that all the materials shown in the two photographs, other than some sawdust, were supplies that were being used by workmen at the time of the inspection. Some of this material was identified as usable four by fours, nails, drywall stud track, elevator track, elevator floors, platforms, and small bits and pieces of wood used as wedges. The sawdust is removed frequently as it accumulates.

As the standard in question applies only to scrap lumber, waste material, and rubbish, and the evidence clearly shows that no such material was involved, other than a small and apparently not unreasonable amount of sawdust which was not shown to have been there for any particular period of time, the Secretary has not met his required burden of proof. Accordingly, item number 5 of Citation Number 1 (nonserious violations) and the penalty proposed therefor must be vacated.

COMPRESSED GAS CYLINDER VIOLATION

The inspector testified that he observed some "unsecured compressed gas cylinders," [*28] one standing upright in the parking lot outside the building and two others lying down on the floor inside the building. He explained that "secured" means to lash them to an object in an upright position to prevent their falling over accidently, breaking the valve, and "tak[ing] off in whichever direction it might be aimed." He also explained that it made no difference if the cylinder were empty, for if it fell over, it could cause injury to a person's foot or body. He did not ascertain whether the cylinders were empty or otherwise, and he did not recall being informed that they were empty. Even those lying down still presented the "guided missile" hazard or the hazard to feet, in his opinion.

The supervisor testified that there were two cylinders in the parking lot area, that they were lying down on the median strip between the two parking lots, and that they were empty and were there for pickup by the supplier. According to this witness, the two inside the building were brought on the premises by a subcontractor and they apparently were still charged with gas.

Quite clearly to me, the standard in question does not apply to empty cylinders, even though they had previously contained [*29] compressed gas, for its objective is limited to avoid hazards incident to escaping gas or explosions. Hence, no violation of this standard occurred as to the cylinder or cylinders in the parking lot. For the reasons that follow this charge cannot be supported by the evidence relating to the two cylinders inside the building.

Faced with the evidence of cylinders both inside and outside the building, the Secretary chose to frame his allegation in the Citation around "Several compressed gas cylinders . . . left on the parking lot adjacent to the worksite . . ." (Emphasis added). In his Complaint, the Secretary omitted this allegation pertaining to the parking lot and substituted nothing as to situs in its place. Whether he intended to alter this allegation or not is of no consequence, for there was no error in the basic charge that could be the subject of an amendment at this stage of the proceeding. In short, my discussion infra regarding amendments in relation to items 9 and 10 of Citation Number 1 (nonserious violations) is controlling; hence the Secretary was estopped from broadening his Citation to include additional violations not included within his original [*30] charge, if that were his intent.

There is yet another reason why the evidence relating to the two cylinders in the building cannot be relied upon to support this alleged violation. As it is undisputed that these cylinders belonged to a subcontractor, the Secretary has failed to meet his burden of proving what length of time they had been there in that condition, whether Respondent was aware of or reasonably should have been aware of the condition, whether Respondent promulgated a directive to avoid the condition and enforced it, and whether any of Respondent's employees were subjected to the hazard created by the condition (see Secretary of Labor v. Sun Shipbuilding and Drydock Co., Secretary of Labor v. Clements Paper Co., and Secretary of Labor v. Ellison Electric, all supra ).

Item 6 of Citation Number 1 (nonserious violations) and the penalty proposed therefor will accordingly be vacated.

LADDER VIOLATIONS

The inspector testified that he observed a stepladder that had a split rail, a damaged step, and was otherwise unstable. The supervisor immediately ordered the man who was using it outside the building off of the ladder and had it removed [*31] from the premises. The inspector also found a second ladder in use that was in a similar condition. This ladder, too, was immediately removed from the premises by the supervisor. The inspector also found a third ladder in a similar condition of disrepair, but this ladder was cained to a post, "supposedly to preclude anyone from using it." The supervisor assured the inspector it would be removed from the premises to preclude anyone from using it.

The supervisor testified that he had the ladders removed from the premises in the inspector's presence and even ordered one of them immediately destroyed because it was in such "foul shape." All of the ladders in question belonged to subcontractors and two of the three were in use by subcontractors' employees. He informed the subcontractors to check all ladders and further informed them that he did not "want to see [such ladders] on the job any more."

As it is undisputed that the ladders in question belonged to subcontractors and that those in use were being used by subcontractors' employees, the Secretary has failed to meet his burden of proving the length of time the ladders had been on the jobsite, whether Respondent was aware of [*32] or reasonably should have been aware of the condition, whether Respondent had promulgated a directive against the use of such ladders and enforced it, whether this was or was not an isolated incident, and, most important of all, whether Respondent's employees or any of them were subjected to the hazard created by the ladders. Without these essential elements of proof, the alleged violation is not supported by substantial evidence (see Secretary of Labor v. Sun Shipbuilding and Drydock Company, Secretary of Labor v. Clements Paper Company, and Secretary of Labor v. Ellison Electric, all supra ). Accordingly, item number 11 of Citation Number 1 (nonserious violations) and the penalty proposed therefor will be vacated.

III

Before, during, and after the hearing of this cause, Respondent moved for a dismissal of the proceedings, claiming the Act to be unconstitutional because it is penal in nature but does not afford such protections as trial by jury, proof beyond a reasonable doubt, and "confrontation of witnesses." Alternatively, Respondent also attacks the integrity of the proceedings on the ground that the entire evidence in the case was obtained [*33] by an unreasonable search, no search warrant having been obtained by the Secretary prior to the inspection being made. I denied the motion before and during the hearing.

As Respondent withdrew its contest as to certain violations, and I am vacating the Citations as to all contested violations, there is no justiciable issue posed by the motion to be resolved at this time.

IV

Based upon the entire record, including the posthearing submissions of the parties, I find that substantial evidence supports the following:

FINDINGS OF FACT n2

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n2 There are no findings of fact relative to item number 1 of Citation Number 1 for Serious Violation in view of my conclusion of law that no violation was alleged.

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That Respondent is and was at all times pertinent to these proceedings an employer operating a business affecting the commerce of the United States, and was thus subject to the provisions of the Act.

That on February 28, 1972, a compliance officer of the Occupational Safety and Health Administration conducted [*34] an inspection of Respondent's workplace in Norfolk, Virginia.

That as a result of said inspection, Citation Number 1 For Serious Violation and Citation Number 1 (nonserious violations) and Notification of Proposed Penalty were issued against Respondent on April 11, 1972.

That Respondent filed a Notice of Contest on April 21, 1972.

That it was necessary for Respondent to remove the standard railings involved in item numbers 2 and 3 of Citation Number 1 for Serious Violation in order to perform work in those areas.

That Respondent did not drop materials more than twenty feet to the ground outside of the building without using an enclosed chute.

That Respondent did not fail to remove scrap lumber, waste material and rubbish from the immediate work area as the work progressed.

That Respondent did not fail to secure compressed gas cylinders in an upright position at times when they were not being hoisted or carried.

That Respondent did not use wooden ladders on the worksite that had broken or missing rungs, split runners, and broken and split top steps.

CONCLUSIONS OF LAW

That this Commission has jurisdiction over the cause of action.

That Respondent's motion to dismiss [*35] is mooted and requires no action.

That Complainant abandoned item numbers 7 and 14 of Citation No. 1 (nonserious violations) in his Complaint; hence, Respondent cannot be found to have violated 29 CFR 1926.401(a) and 29 CFR 1926.500(e)(i)(iv), as alleged in said Citation.

That Respondent's motion to withdraw its Notice of Contest as to item numbers 1, 2, 3, 8, 12, and 13 of Citation Number 1 (nonserious violations), as amended, is appropriate and should be granted.

That Respondent's motion to withdraw its Notice of Contest as to item numbers 9 and 10 of Citation Number 1 (nonserious violations), as amended, is inappropriate and should be denied.

That the Complaint amendment as to item number 9 of Citation Number 1 (nonserious violations) changed the nature of the charge and was unauthorized as a matter of law.

That the Complaint amendment as to item number 9 of Citation Number 1 (nonserious violations) otherwise operated to allege an act that was not a violation of the applicable regulation.

That the Complaint amendment as to item number 10 of Citation Number 1 (nonserious violations) operated to allege an act that was not a violation of the applicable regulation.

[*36] That no violation of any applicable regulation was alleged in item number 1 of Citation Number 1 for Serious Violation pertaining to the 220-volt power supply junction box.

That Respondent did not violate 29 CFR 1926.500(b)(1) by failing to provide a standard railing around an elevator shaft that was open on all four sides.

That Respondent did not violate 29 CFR 1926.500(d)(1) by failing to provide a standard railing on the side of a floor that was more than six feet above the ground level.

That Respondent did not violate 29 CFR 1926.252(a) by dropping materials more than twenty feet to the ground outside of the building without using an enclosed chute.

That 29 CFR 1926.350(a)(9) does not pertain to empty cylinders that formerly contained compressed gas; hence Respondent did not violate said regulation by failing to secure in an upright position compressed gas cylinders that were not being hoisted or carried.

That Respondent did not violate 29 CFR 1926.450(a)(2) by using wooden ladders on the worksite that had broken or missing rungs, split runners, and broken or split top steps.

Respondent's motion to withdraw its Notice of Contest as to item numbers 1, 2, 3, 8, 12 and 13 of [*37] Citation Number 1 (nonserious violations) is granted, but its motion to withdraw its Notice of Contest as to item numbers 9 and 10 of the same Citation is denied. Citation Number 1 (nonserious violations) with respect to item numbers 1, 2, 3, 8, 12 and 13 is affirmed Citation Number 1 (nonserious violations) with respect to item numbers 4, 5, 6, 7, 9, 10, 11, and 14, and the penalties proposed for item numbers 4, 5, 6, and 11 thereof are vacated. Citation Number 1 for Serious Violation, in its entirety, and the penalties proposed therefor are vacated.

It is so ORDERED.