Docket No. 860

HERSMAN CONSTRUCTION COMPANY

OSHRC Docket No. 860

Occupational Safety and Health Review Commission

October 23, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision by Judge James D. Burroughs. Judge Burroughs concluded that Respondent had committed three non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) by violating standards promulgated under the Act. The Judge assessed penalties totalling $115 and held that Respondent was not liable for additional penalties for an alleged failure to abate certain items within the period of time prescribed for correction.

We have reviewed the record and find no prejudicial error in the Judge's decision.

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed in all respects.

[The Judge's decision referred to herein follows]

BURROUGHS, 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., 84 Stat. 1590 (hereinafter referred to as the Act) to review two Citations issued by the Secretary of Labor (hereinafter referred to as the complainant), pursuant to Section 9(a) of the Act, and proposed assessment of penalties, pursuant to Section 10(a) of the Act, in the aggregate amount of $265.00. An additional penalty of $1,785.00 proposed by the complainant under Section 10(b) of the Act for failure to correct violations set forth in one of the Citations is also contested by the respondent.

Citation Number 1 was issued to the respondent on April 12, 1972, alleging that it had committed five (5) non-serious violations of safety standards promulgated pursuant to Section 6(a) of the Act. The Citation alleged violations and a Notification of Proposed Penalty issued on the same date proposed penalties as indicated:

Standard or Regulation Allegedly	Amount of Penalty
Violated	Proposed
1. 29 CFR 1926.105(a)	$35.00
2. 29 CFR 1926.500(d)(1)	25.00
3. 29 CFR 1926.500(d)(1) and	25.00
(e)(1)
4. 29 CFR 1926.252(b)	25.00
5. 29 CFR 1926.252(a)	25.00

The Citation contained the date of April 12, 1972, as the date the violations were to be corrected.

On April 21, 1972, a Notification of Failure To Correct Violation and of Proposed Additional Penalty was issued to respondent alleging that a reinspection had been conducted on April 18, 1972, and that the violations set forth in the Citation of April 12, 1972, had not been corrected. An additional penalty of $1,785.00 was proposed for the failure to abate. The additional penalty was computed as follows:

		Proposed	Proposed Total
	50 Percent	Daily	Additional
Alleged Violation	Adjustment	Additional	Penalty For
	Factor	Penalty	Failure to Abate
1. 29 CFR 1926.105(a)	$35.00	$450.00	$485.00
2. 29 CFR 1926.500	25.00	300.00	325.00
(d)(1)
3. 29 CFR 1926.500	25.00	300.00	325.00
(d)(1) and (e)(1)
4. 29 CFR 1926.252	25.00	300.00	325.00
(b)
5. 29 CFR 1926.252(a)	25.00	300.00	325.00

Citation Number 2 was issued to respondent on April 21, 1972. The Citation alleged violations and a Notification of Proposed Penalty issued on the same date proposed penalties as follows:

Alleged Violations	Proposed Penalties
1. 29 CFR 1903.16	None
2. 29 CFR 1926.500(b)(1)	$65.00
3. 29 CFR 1926.25(a)	65.00

By letter dated April 27, 1972, respondent timely notified the complainant that it wished to contest the two Citations and all proposed penalties, including the penalties proposed for the alleged failure to correct the alleged violations set forth in Citation Number 1. The complainant advised the Occupational Safety and Health Review Commission of the Notice of Contest filed by respondent.

Citation Number 1 described the five (5) alleged non-serious violations as follows:

1. 29 CFR 1926.105(a)

Failure to assure use of safety belts by all employees exposed to falls on uppermost level of building under construction. Employees were performing column and beam framework operations without guarded work platforms, safety nets, or catch platforms in use, on 6th level.

2. 29 CFR 1926.500(d)(1)

Failure to provide complete open sided floor protection on 2nd level and 4th level.

3. 29 CFR 1926.500(d)(1) and (e)(1)

Failure to provide guarding on north stairway landings, all levels.

4. 29 CFR 1926.252(b)

Failure to provide barricades at ground level to prevent personnel from passing into building center courtyard area while debris handling is occurring above.

5. 29 CFR 1926.252(a)

Failure to have enclosed trash chute to dispose of waste materials from upper levels.

Citation number 2 described the three (3) alleged non-serious violations as follows:

1. 29 CFR 1903.16

Failure to post citation, dated April 12, 1972, at work site.

2. 29 CFR 1926.500(b)(1)

Failure to provide safe floor cover access from stairway to seventh floor level forming area.

3. 29 CFR 1926.25(a)

Failure to keep stairs cleared of debris and materials.

The Commission assigned the case to this Judge on June 28, 1972, for purposes of conducting a hearing pursuant to Section 10(c) of the act. The hearing was held in Miami, Florida, on July 31, 1972. No additional parties desired to intervene in the proceeding.

ISSUES

The primary issues for determination pertain to whether respondent committed non-serious violations of the following standards:

1. 29 CFR 1926.105(a)

2. 29 CFR 1926.500(d)(1)

3. 29 CFR 1926.500(d)(1) and (e)(1)

4. 29 CFR 1926.252(b)

5. 29 CFR 1926.252(a)

6. 29 CFR 1903.16

7. 29 CFR 1926.500(b)(1)

8. 29 CFR 1926.25(a)

If any violations occurred, a determination must be made as to the appropriate penalties, if any, to be asserted for the violations. In addition a determination must be made as to whether the penalties proposed for the failure to correct the alleged violations in Citation No. 1 should be imposed.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving this proceeding.

Respondent is a corporation having a business and doing business at 9020 Southwest 77th Avenue, Miami, Florida (Complaint and Answer). It it and has been engaged in the business of general and subcontracting of construction projects (Tr. 165).

Its business has been devoted mainly to projects consisting of high rise buildings (Tr. 166).

On April 10, 1972, the complainant, through one of his authorized compliance officers, conducted an inspection of respondent's workplace at Catalonia Street, Coral Gables, Florida (Tr. 40, 43, 167). Respondent was a subcontractor on the construction of a seven floor office building (Tr. 42, 44, 166, 179). Its job was to prepare the temporary forms for the concrete and pour the concrete (Tr. 166, 181). The building had an open courtyard in the center (Tr. 48).

Employees of respondent were working on the sixth level constructing framework for the concrete columns and piers of the building (Tr. 44-45). One employee was working at the top corner perimeter of the building without a safety belt (Ex. 1; Tr. 44-45, 47, 89, 149). There were no platforms or safety nets in use to prevent his hitting the ground in the event of a fall (Tr. 44, 47-48). Employees were provided with safety belts and they had been instructed to wear them (Tr. 91-92, 184-185). The respondent enforces its policy of requiring safety belts (Tr. 221). The superintendent was unaware of any employee not wearing his safety belt where it was required (Tr. 185).

Employees were engaged in clean-up operations on the second level and stockpiling of stripped materials on the fourth level. The stripped material had served as forms for the concrete until it was set up. Perimeter guardrails were missing on both levels at points where employees were exposed (Tr. 48, 52, 95-96, 98, 190). The west perimeter of the second level closets to where respondent's employees were cleaning up did not have guardrails (Tr. 52, 95). A double chain railing was being used as a perimeter guardrail on some of the levels (Ex. 4; Tr. 48, 69).

Prefabricated steel stairways were being used in the building. The north stairway had railings for the steps but the landings had no guardrails or other temporary protection (Ex. 2; Tr. 53-55, 195). The unprotected landings were approximately 44 inches in width (Tr. 55).

Some debris, trash and stockpiled materials were in the courtyard (Tr. 55). Most of the material in the courtyard was stockpiled form-work (Tr. 110). No debris or trash was dropped into the courtyard while the compliance officer was conducting the inspection (Tr. 109-110, 114-116). No materials had previously been dropped from the upper levels into the courtyard or to the outside of the building (Tr. 202, 204). No barrier had been erected on the first level to prevent workers from walking unimpeded into the courtyard (Tr. 55).

No trash chute was in use at the time of inspection (Tr. 56,222). Trash had been piled on the different floor levels where a trash chute was to be erected (Tr. 201, 223).

After the inspection a closing conference was held with respondent's superintendent, Floyd W. Byrd. The alleged violations were discussed with Byrd (Tr. 59-60). The compliance officer orally informed Byrd that correction of the alleged violations discovered on April 10, 1972, were to be made by April 12, 1972 (Tr. 60, 134-135). No written notification of any alleged violations was given to Byrd at the the closing conference (Tr. 135). The superintendent indicated that he thought they could be corrected by that date (Tr. 60).

The Citation resulting from the inspection of April 10, 1972, was forwarded by certified mail, The letter was signed for on April 17, 1972, by Burkell Hersman, the father of respondent's president (Ex. 7; Tr. 120, 167-168, 176-177). The notice of the certified letter was received earlier but the letter was not actually picked up at the post office until late afternoon of April 17, 1972. The notice of the letter was sent to the apartment of respondent's president. The respondent's president received the letter on April 18, 1972 (Tr. 121-122, 167, 169, 175, 177). The notice of certified mail did not indicate the contents of the letter. Respondent was not aware of its contents until advised by the compliance offficer that it had been mailed. After conversing with the compliance officer, the respondent's president contacted his father and had the letter brought to him immediately (Tr. 167-169).

A penalty of $35.00 was proposed by complainant for the alleged violation of 29 CFR 1926.105(a). The gravity of the violation, based on the probability, severity and extent of the violation, was determined to be in the intermediate range and the unadjusted penalty was set at $150.00 (Ex. 7; Tr. 76-77). Respondent was allowed a 20 percent reduction for previous history, a 20 percent reduction for good faith and a 10 percent reduction for size. This reduced the penalty to $75.00. A further reduction of 50 percent was allowed for abatement. This reduced the proposed penalty to $37.50 and it was rounded off to the nearest $5.00 to arrive at the proposed penalty of $35.00 (Ex. 7; Tr. 78-79).

A penalty of $25.00 each was proposed for the remaining violations. The proposed penalties were determined in the same manner as the proposed penalty for the alleged violation of 29 CFR 1926.105(a) except that the unadjusted penalty for each of the remaining violations was set at $100.00 (Ex. 7; Tr. 83).

On April 18, 1972, the compliance officer conducted a follow-up inspection at respondent's worksite (Tr. 61).

The Citation describing the alleged violations from the inspection of April 10, 1972, had not been posted at the time of the second inspection (Tr. 61, 122-123, 145, 150). The Citation was posted after the compliance officer brought the matter to the attention of respondent's president at the time of the April 18, 1972, inspection (Tr. 169, 171, 205).

At the time of the second inspection, work had progressed to a further degree at the top working level, but conditions were generally the same as they were on the first inspection (Tr. 63).

There was no trash chute and no barricades to prevent employees from going into the courtyard at random (Tr. 63, 71). An employee was stock-piling some formwork in the courtyard (Ex. 5; Tr. 71). The stairway landings were unguarded. Employees were on the top perimeter without safety belts (Tr. 63). Perimeter railings were missing on the fourth level (Ex. 4; Tr. 69-70).

The stairways contained some scrap material consisting of broken 2 X 4's and other similar items (Tr. 130, 212). Respondent's general procedure is to try to keep all stairways clear. They are cleaned daily (Tr. 212). The stairways were not impassable at the time of the inspection (Tr. 130, 212).

On the top level a large opening existed in front of the stairway landing. The remainder of the stairway landing was to be placed in the opening (Ex. 3; 207-208). The stairway was being used by employees as an accessway to their various working areas on the top level (Tr. 65-66, 126). The opening was not guarded by any kind of railing, toeboards or cover (Ex. 3).

A penalty of $65.00 each was proposed for the alleged violations of 29 CFR 1926.500(b)(1) and 29 CFR 1926.25(a) which were included in the Citation issued on April 21, 1972. The gravity of the violations, based on the probability, severity and extent of the violations, were determined to be in the intermediate range and the unadjusted penalty for each violation was set at $150.00. A 10 percent reduction was allowed for size which reduced the proposed penalties to $135.00 each. No reduction was allowed for good faith or previous history because of the previous Citation that had been issued (Ex. 8, Tr. 85). A 50 percent reduction was allowed for abatement and the remaining amounts of $67.50 were rounded off to the nearest $5.00 to arrive at the proposed penalties of $65.00 (Tr. 86).

The additional penalties for failure to abate were determined by taking the three working days after the specified date of inspection and multiplying them times the unadjusted penalty determined for each violation. Only working days were considered in figuring the penalties for failure to abate. The 50 percent deducted for abatement credit was then added to the amount for each penalty to arrive at the total additional penalty for failure to abate (Tr. 81-82, 134-135, 152).

LAW AND OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with Occupational Safety and Health standards promulgated under the Act. The complainant has issued two citations, dated April 12, 1972, and April 21, 1972 alleging that respondent committed either separate violations of standards promulgated under the Act.

A. CITATION DATED APRIL 12, 1972

1. Alleged Violation of 29 CFR 1926.105(a)

Section 1926.105(a) of 29 CFR provides as follows:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are impractical.

The Citation of April 12, 1972, alleges that respondent "failed to assure use of safety belts by all employees exposed to falls on uppermost level of building under construction." However, the Citation was amended by paragraph IV A of the complaint to allege "that respondent failed to provide safety nets for its employees performing column and beam framework operations on the 6th level of the aforesaid building."

The standard under discussion requires that complainant establish (1) that the workplace was more than 25 feet off the ground and (2) that the use of ladders, scaffolds, safety lines, or safety belts were impractical. Complainant has failed to carry his burden on this issue.

Respondent had provided safety belts for its employees and had instructed them to wear the belts (Tr. 184-185). The compliance officer testified that he found no evidence to dispute these facts (Tr. 94-95). Respondent's superintendent believed that safety belts were the best means of fall protection for respondent's employees (Tr. 185). The evidence supports this conclusion of the superintendent.

The compliance officer admitted in his testimony that the use of safety belts was practical. He also testified that he would not have raised this alleged violation if the employee had been wearing a safety belt (Tr. 45, 90-91). Since safety belts were practical, section 1926.105(a) of 29 CFR is not applicable. The wording of the standard makes the use of a safety net a last alternative for the respondent. In other words, if safety belts are practical they should be used in preference to a safety net.

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

Section 1926.500(d)(1) of 29 CFR provides as follows:

Guarding of open-sided floors, platforms, and runways. (1) Every opensided 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.

The Citation and complaint allege that respondent failed to provide complete open-sided floor protection on the second and fourth levels of the building.

The evidence clearly establishes a violation of this standard. Perimeter guardrails were missing on the second and fourth levels at points where employees were exposed to a fall hazard (Tr. 48, 52). There is no dispute over the fact that the height of the second and fourth levels was in excess of six feet from the ground so as to make the standard applicable to the facts of this case. The evidence does not support the allegations raised by respondent that no guardrails were in place because stripping operations were in progress. In addition to the fact that the compliance officer did not observe any such stripping operations, it is also noted that the same violation existed on the second inspection conducted on April 18, 1972. It seems unlikely that stripping operations would have proceeded in the same area for that length of time. Furthermore, the employees were engaged in cleaning up and stockpiling of stripped materials which would indicate that the stripping operations in the area of the violation had been completed.

3. Alleged Violation of 29 CFR 1926.500(d)(1) and (e)(1)

Sections 1926.500(d)(1) and (e)(1) of 29 CFR provides as follows:

(d) Guarding of open-sided floors, platforms, and runways. (1) Every opensided 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.

(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails;

The Citation and Complaint allege that respondent failed to provide guarding on the north stairway landings at all levels of the building.

The evidence clearly establishes that prefabricated steel stairways were being used in the building. The north stairway had railings for the steps but the landings or stair plaforms had no guardrails or other temporary support as required by 29 CFR 1926.500(d)(1). The evidence does not establish the height between the floors but it can be safety assumed that the distance between the floors was in excess of the six feet required by the standard.

Section 1926.500(e)(1) relates primarily to stairway railings rather than protection for a stair platform which is defined by 29 CFR 1926.502(h) as an extended step or landing breaking a continuous run of stairs. There has been no allegation of missing handrails or stairrailing. The evidence reflects that the steps on the north stairway had railings. Accordingly, the evidence fails to support a violation of 29 CFR 1926.500(e)(1).

4. Alleged Violation of 29 CFR 1926.252(b)

Section 1926.252(b) of 29 CFR provides as follows:

When debris is dropped through holes in the floor without the use of chutes, the area onto which the material is dropped shall be completely enclosed with barricades not less than 42 inches high and not less than 6 feet back from the projected edge of the opening above. Signs warning of the hazard of falling materials shall be posted at each level. Removal shall not be permitted in this lower area until debris handling ceases above.

The Citation and Complaint allege that respondent failed to provide barricades at ground level to prevent personnel from passing into the center courtyard while debris handling was occurring above.

It is undisputed that there was no barrier on the first level to prevent employees from passing into the courtyard (Tr. 55, 215-216). However, the evidence of record and the inapplicability of the standard cited make it clear that respondent did not commit a violation of 29 CFR 1926.252(b).

The standard required barricades when debris is dropped through holes in the floor without the use of chutes. The evidence is clear that chutes were not in use until after the second inspection. The key phrase insofar as applicability of the standard is concerned is "holes in the floor." It is generally accepted that a floor hole is an opening measuring less than 12 inches in any floor, roof or platform through which materials may fall. See definition of "floor hole" at 29 CFR 1926.502(a). The alleged violation charged by complainant relates to employees throwing trash, debris and materials from the various levels into the courtyard. The floor does not extend over the courtyard. Anything being thrown from the various levels into the courtyard would be from the interior of the building to the outside of the building. No floor holes are involved unless one interprets a courtyard to be a floor hole. Since the building would have exterior walls on the courtyard side, and the courtyard is several feet in diameter, the general meaning of "floor hold" simply would not be appropriate.

The evidence also fails to support the allegation that materials, trash or debris were being dropped from the various levels into the courtyard. During the inspection the compliance officer noticed debris, trash and stockpiled materials in the courtyard (Tr. 55). He did not observe any trash, debris or materials being thrown into the courtyard while on the scene conducting the inspection (Tr. 110, 114-116, 143). He assumed that the materials, debris and trash had been thrown from the various levels into the courtyard since he understood the superintendent to indicate that a spotter was used when trash was brought down (Tr. 145-147).

It is clear that the assumption made by the compliance officer was erroneous. The superintendent testified that it was respondent's policy not to throw anything off of any building and that he did not intend to imply that respondent's employees had thrown the trash, debris and materials into the courtyard (Tr. 202, 204). The superintendent explained that his reference to the use of a spotter was in situations where a crane was being used or stripping operations were being conducted. The spotter was used during stripping operations since it was possible that some of the stripped material could fall into the courtyard (Tr. 203).

5. Alleged Violation of 29 CFR 1926.252(a)

Section 1926.252(a) of 29 CFR provides as follows:

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.

The Citation and complaint allege that respondent failed to use an enclosed trash chute whenever waste materials were dropped from the upper levels to any point lying outside the exterior walls of the building.

It is undisputed that no trash chute was being used at the time of either inspection (Tr. 56, 222). There is, however, no evidence to indicate that materials were dropped to any point lying outside the exterior walls of the building. The compliance officer did not observe any materials being dropped during his inspections (Tr. 110, 114-116). The superintendent testified that trash was stockpiled on the various levels where a trash chute was to be erected (Tr. 200-201, 223). He further testified that no materials were ever thrown off the building (Tr. 202). A chute was subsequently installed to dispose of the trash (Tr. 201-202).

The standard requires the use of a trash chute whenever materials are dropped to any point lying outside the exterior walls of the building. The burden of proof to establish this prerequisite to the applicability of the standard is upon complainant. Since the evidence does not show that any materials were dropped outside the exterior walls of the building without the use of a trash chute the complainant has failed to meet his burden. The fact that debris, trash and materials were stored in the courtyard does not prove that they were dropped outside the exterior walls of the building. They could have easily been carried to that location without any hazard to employees.

B. CITATION DATED APRIL 21, 1972

1. Alleged Violation of 29 CFR 1903.16

The provisions of section 1903.16 of 29 CFR pertinent to this issue are as follows:

Upon receipt of any citation under the Act, the employer shall immediately post such citation, or a copy thereof, unedited, at or near each place an alleged violation referred to in the citation occurred, except as provided below.

The Citation of April 21, 1972, and Complaint allege that the Citation of April 12, 1972, was not posted at the work site.

The Citation issued April 12, 1972, was forwarded by certified mail. Sometime subsequent to the Citation being mailed, respondent's president received a notice from the post office to pick up a certified letter (Tr. 167). He was unaware of the contents of the letter (Tr. 169). Since he was not in the vicinity of the post office during hours it was open, he asked his father to pick up the letter (Tr. 167-168, 177). His father picked up the letter on April 17, 1972 (Ex. 7; Tr. 120, 168-169, 176).

On April 18, 1972, the compliance officer, at the time of the second inspection, asked about the Citation (Tr. 167). Respondent's president was unaware of any Citation until the compliance officer mentioned it to him. The superintendent who accompanied the compliance officer on the inspection had advised the president of the inspection but had not informed him that a Citation was to be issued (Tr. 227). The president immediately telephoned his father to bring over the certified letter and it was delivered within half an hour. The Citation was then immediately posted (Tr. 168-169, 171, 205).

As a result of a misunderstanding between the compliance officer and the respondent's superintendent, the respondent's president was unaware of the Citation and did not receive it until April 18, 1972. The superintendent apparently interpreted the things pointed out by the Compliance officer as suggestions rather than violations (Tr. 182-183). The respondent's president, upon learning of the Citation, took immediate steps to have the certified letter delivered to him and the Citation was immediately posted. The evidence is convincing that respondent's president was unaware that respondent was being issued a Citation and that the delay in picking up the certified letter was not due to any intention on the part of respondent to subvert the provisions of 29 CFR 1903.16. Accordingly, it is concluded that respondent has substantially complied with the provisions of 29 CFR 1903.16.

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

Section 1926.500(b)(1) of 29 CFR provides as follows:

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. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

The Citation and Complaint allege that respondent failed to provide safe floor cover access from the stairway to the seventh floor level forming area.

The evidence conclusively supports a violation of 29 CFR 1926.500(b)(1). A large opening existed on the top working level where the remainder of the stairway landing was to be placed (Tr. 207-208). The opening was not guarded by any kind of railing, toeboards or cover (Ex. 3). Respondent's employees were working on the top level and were exposed to the hazard presented by the opening (Tr. 66).

3. Alleged Violation of 29 CFR 1926.25(a)

Section 1926.25(a) of 29 CFR provides as follows:

During the course of construction, alteration, or repairs, 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.

The Complaint and Citation allege that respendent failed to keep the stairs cleared of debris and materials.

The compliance officer testified on direct that he "felt they [stairways] were quite cluttered with trash and debris" (Tr. 67-68). He further testified that the debris consisted of scrap material, broken two-by-fours and similar debris (Tr. 130). The locations or the quantity of the scrap material or debris is not indicated in the evidence of record. The compliance officer admitted that the amount of trash and debris was not sufficient to render the stairways impassible (Tr. 130-131). The stairways shown in the photographs reflected as exhibits 2 and 4 do not reflect the scrap material and debris to which the compliance officer refers. The respondent's superintendent testified that it is respondent's policy to keep the stairways clean and that there was no excessive debris on the stairways on April 18, 1972 (Tr. 212).

The evidence is clear that respondent has substantially complied with the requirements of 29 CFR 1926.25(a). The complainant has not been specific in detailing the extent of the alleged violation and the evidence does not indicate that the debris that was present caused any hazard to employees.

C. ADDITIONAL PENALTIES FOR FAILURE TO CORRECT ALLEGED VIOLATIONS IN CITATION OF APRIL 12, 1972

Complainant contends that respondent failed to correct the violations set forth in the Citation of April 12, 1972, and proposed additional penalties of $1,785.00 for failure to abate. Additional penalties for failure to abate, if applicable, can only be asserted for the violations determined by the Commission. The evidence supports only the allegations that there were two violations of 29 CFR 1926.500(d)(1) contained in the Citation of April 12, 1972. These violations had not been corrected as of the second inspection of April 18, 1972.

Complainant contends that penalties for failure to abate must be imposed on any violations determined by the Commission since corrections were not made by April 12, 1972. He asserts that the additional penalties are applicable even though a notice of contest was filed within 15 working days of the receipt of the Citation of April 12, 1972 (Tr. 30-32). Complainant's position on this issue is quite surprising since it is contrary to the plain wording of the Act, the Regulations and his own guidelines issued in the Compliance Operations Manual.

The Citation issued on April 12, 1972, contained five violations. The Citation notes that the compliance officer orally informed the respondent's superintendent during the inspection of April 10, 1972, that corrections were to be made by April 12, 1972. (The inspection was on Monday and corrections were to be made by Wednesday (Tr. 60).) Thus respondent was orally given two days to make the corrections.

The Citation was sent by certified mail and was signed for at the post office on April 17, 1972. The letter which gave notice of intent to contest the citation was dated April 27, 1972. It was stamped as being received on May 1, 1972, by the Department of Labor's Fort Lauderdale office. Section 10(a) of the Act gives the employer "fifteen working days from the receipt of the notice [Citation] issued by the Secretary" to notify the Secretary that he wishes to contest the Citation. The record is clear that the notice of contest was timely filed within fifteen working days from the receipt of the Citation.

Section 10(b) of the Act specifically provides that the period permitted for correction does not "begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section [Section 10] initiated by the employer in good faith and not solely for delay or avoidance of penalties." The provisions of Section 10(b) have been incorporated into the complainant's Regulations at 29 CFR 1903.18. The import of Section 10(b) is that once a notice of contest is timely filed in good faith the period for correction does not commence to run until entry of a final order by the Commission.

There has been no contention by complainant that respondent failed to initiate the review of this case in good faith or that it was done solely for delay purposes or avoidance of penalties. The evidence reflects good faith on the part of the respondent. Respondent has two days from the entry of a final order in this case to make the corrections for the two violations of 29 CFR 1926.500(d)(1). Accordingly, there can be no additional penalties imposed for the violations of 29 CFR 1926.500(d)(1) at this stage of the violations. If respondent fails to make the necessary corrections after a final order is entered and two days have lapsed, then complainant would be justified in asserting additional penalties.

Guidelines issued by the complainant support the above determination. The Compliance Operations Manual released January 4, 1972, correctly applies the Act to the situation presented in this case. Section 0.2.d. (page V-27) of Chapter V of the Operations Manual Provides as follows:

If a notice of contest is filed by an employer respecting an alleged violation, no followup should be scheduled as to that violation. However, if the abatement date is shorter than the 15 working day period for the filing of a notice of contest, a followup inspection should be scheduled after the abatement date, if a notice of contest has not been filed by that time. If a notice of contest is thereafter filed in a timely manner, notice of failure to abate and proposed penalties should not be issued, and if any were issued, they would be nullified (emphasis added).

The Citation of April 12, 1972, in setting a date of April 12, 1972, for correction of the alleged violations contains the following footnote:

Compliance Officer advised Mr. William Bird [Byrd] during the inspection that violations were to be corrected as of this date.

This procedure raises serious questions concerning the complainant's ability to follow his own guidelines.

Section 9(a) of the Act assures each employer that he will receive a written Citation which will set forth a specified correction date. The Act says nothing about an oral date being specified for correction by a compliance officer prior to the issuance of a Citation. A correction date of April 12, 1972, which was the same date of the Citation is unrealistic. The employer is being told he should have corrected the violation prior to receiving the written notice assurred him by Section 9(a) of the Act that a violation existed.

In this case there is evidence that the compliance officer and respondent's superintendent were not fully communicating with each other during the inspection of April 10, 1972. A written notification as specified by Section 9(a) of the Act avoids any such misunderstanding. However, in this case the corrections were specified to be made five days prior to the Citation being picked up at the post office. Such procedure appears grossly unfair to employers who are acting in good faith and fail to take corrective action due to misunderstanding with the compliance officer at the closing conference. The complainant appears to recognize the unfairness in such a procedure but apparently chose not to follow his own established procedure.

The guidelines established in the Compliance Operations Manual released January 4, 1971, indicate that the compliance officer in this case exceeded his authority by orally advising the respondent of a correction date. Section I of Chapter V of the Manual (Page V-23) provides, in part, as follows:

I. Closing Conference-Employer

1. Upon completion of an inspection, the CSHO shall confer with the owner, operator, or employer representative, and advise him of all conditions and practices disclosed by the inspection which may constitute safety and health violations. He should also indicate, where possible, the applicable section or sections of the standards which may have been violated.

2. Discussing Citations and Penalties

a. The CSHO shall advise the employer that citations may be issued with respect to some or all of the conditions or practices noted, and that monetary penalties may be proposed with respect to each citation. The employer should also be informed that citations will fix a reasonable time for abatement of the alleged violation(s) (emphasis added).

b. While the CSHO should encourage employers to eliminate any and all hazards as promptly as possible, he shall not at any time commit the Department, or give any impression of committing the Department, as to what enforcement action will be taken with respect to any apparent violation disclosed by the inspection. Thus, the CSHO shall make no statement which could be construed as committing the Department to issuing or not issuing a citation with respect to an apparent violation. Nor shall the CSHO make any statement which might appear to commit the Department with respect to such matters as the nature or category of any apparent violation for which a citation may be issued, the length of the period which will fixed for abatement or the amount of any penalty which may be proposed (emphasis added).

It is also noted that when an abatement period is short, the Compliance Operations Manual indicates that the abatement date should be stated in terms of a number of days when it is uncertain when the employer will receive the Citation. Section F.l.b. of Chapter X (Page X-8) of the Manual states:

The abatement period should be the shortest interval within which the employer can reasonably be expected to correct the violation. Normally, an abatement date shall be set forth in the citation as a specific date, not a number of days. However, when the abatement period is very short (i.e., five working days or less), and when it is uncertain when the employer will receive the citation, the abatement period shall be stated in terms of a number of days from receipt of the citation (emphasis added).

Thus had complainant followed his own guidelines the respondent would have had two days from the date of receipt to make the corrections. Under such circumstances the correction date would have been subsequent to April 18, 1972, and no additional penalties would have been applicable even if a notice of contest had not been filed.

APPROPRIATENESS OF PENALTIES

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating Citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense.

The Commission in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., insure a safe and healthful workplace. The same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., Small monetary penalties were eliminated in both cases since the violations had been abated. However, this rationale was directed toward relatively minor violations of the Act which would be better described as de minimis. The Commission recognized that there would be instances where a small penalty would be justified. Whether small monetary penalties are justified must be determined by the relationship between the nonserious violation involved and the corresponding degree of gravity. Secretary of Labor v. Hydroswift Corporation,

The evidence supports only three violations in this case. There are two separate violations of 29 CFR 1926.500(d)(1). The complainant proposed a penalty of $25.00 for each of these violations. A penalty of $65.00 was proposed by complainant for the violation of 29 CFR 1926.500(b)(1).

After due consideration of the four criteria provided by Section 17(j) and applying the rationale of the Commission in J.E. Chilton Millwork and Lumber Company, Inc., supra, and General Meat Company, Inc., supra, it is concluded that the penalties proposed by the complainant for the three violations are fair and appropriate for the facts of this case. The level of gravity for each of the violations mandates that a penalty be assessed for each of the violations.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent committed two separate non-serious violations of 29 CFR 1926.500(d)(1) and a non-serious violation of 29 CFR 1926.500(b)(1).

4. Respondent did not violate the standards set forth at 29 CFR 1926.105(a), 29 CFR 1926.500(e)(1), 29 CFR 1926.252(b), 29 CFR 1926.252(a), 29 CFR 1903.16 and 29 CFR 1926.25(a).

5. Penalties of $25.00 each are warranted for the two violations of 29 CFR 1926.500(d)(1). A penalty of $65.00 is warranted for the violation of 29 CFR 1926.500(b)(1).

6. The additional penalties of $1,785.00 proposed for failure to correct the alleged violations set forth in the Citation issued April 12, 1972, are not applicable.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED:

(1) That the respondent committed two non-serious violations of 29 CFR 1926.500(d)(1) and a non-serious violation of 29 CFR 1926.500(b)(1);

(2) That penalties of $25.00 each are assessed for the two violations of 29 CFR 1926.500(d)(1);

(3) That a penalty of $65.00 is assessed for the violation of 29 CFR 1926.500(b)(1);

(4) That respondent did not commit violations of the standards set forth at 29 CFR 1926.105(a), 29 CFR 1926.500(e)(1), 29 CFR 1926.252(b), 29 CFR 1926.252(a), 29 CFR 1903.16 and 29 CFR 1926.25(a); and

(5) That respondent is not liable for the additional penalties of $1,785.00 proposed for failure to correct the alleged violations set forth in the Citation issued April 12, 1972.