UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-662
PRESTRESSED SYSTEMS, INC.,
Respondent.

July 30, 1980

DECISION

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

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–78 (‘the Act’). A decision of Administrative Law Judge John S. Patton is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i).

The citation in Docket No. 76–662 alleged that Respondent, Prestressed Systems, Inc., had violated section 5(a)(2) of the Act by failing to comply with the standard published at 29 C.F.R § 1926.21(b)(2). This docket number was consolidated with Docket No. 16147, another case involving the same parties. At the hearing, Respondent stated that it was withdrawing its ‘answer’ and was not contesting the citation at issue in Docket No. 76–662. The motion was granted by Judge Patton, and the citation and $75 penalty proposed by the Secretary were affirmed. The citations in Docket No. 16147 remained in dispute at the hearing. After the hearing, Judge Patton issued a decision in which he affirmed the citations in Docket No. 16147 and noted Respondent’s withdrawal of its contest in Docket No. 76–662.

Respondent filed a petition for discretionary review listing both docket numbers. The petition for discretionary review alleged generally that the judge erred in his findings of fact and conclusions of law. The petition also stated that Respondent would further elaborate on its arguments in its supporting brief. Both docket numbers were directed for review by former Commissioner Moran. The direction for review did not specify any issues to be considered by the Commission.

Neither party has briefed any issues in Docket No. 76–662 nor has either party raised any question about the Respondent’s withdrawal of its notice of contest. We therefore conclude that for this docket number the parties lack interest in having the case reviewed. We also conclude that the case involving this docket number is without any issue of compelling public interest. Therefore, we sever Docket No. 76–662 from Docket No. 16147. In Docket No. 76–662, we affirm the judge’s decision without review. Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975–76 CCH OSHD ¶20,428 (No. 9507, 1976); see Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975–76 CCH OSHD ¶20,508 (No. 3336, 1976). The judge’s decision in Docket No. 76–662 retains the precedential value of an unreviewed judge’s decision. See Leone Construction Co., 76 osahrc 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶20, 387 (No. 4090, 1976), appeal withdrawn, No. 76–4070 (2d Cir. May 17, 1976).

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: JUL 30, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 16147 & 76-662
PRESTRESSED SYSTEMS, INC.,
Respondent.

FINAL ORDER DATE: August 26, 1976

DECISION AND ORDER

APPEARANCES

Ken Welsch, Esquire, and Thomas Brown, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant

Clair W. Langmaid, Esquire, General Counsel for Gable Industries, Atlanta, Georgia, and Mr. Elliot Goldstein, Safety Director of Prestressed Systems, Inc., Miami Springs, Florida, on behalf of respondent

STATEMENT OF THE CASE

Patton, Judge:

This is a consolidated proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., 84 Stat. 1950, hereinafter referred to as the Act) contesting citations issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.

Citations in case number 16147 allege that as a result of the inspection of a workplace under the ownership, operation and control of the respondent, located at a worksite known as the Omni Job, 350 Northeast 15th Street, Miami, Florida, the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health Standards 29 C.F.R. 1926.28(a), 29 C.F.R. 1926.105(a), 29 C.F.R. 1926.451(a)(4), 29 C.F.R. 1926.700(a), 29 C.F.R. 1926.701(a)(1), and 29 C.F.R. 1926.500(d)(1).

It was alleged in case number 76–662, as a result of an inspection at said worksite, that the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health Standard 29 C.F.R. 1926.21(b)(2).

At the commencement of the hearing of these cases, the respondent stated that it was withdrawing its answer as to case number 76–662 and was not contesting the issues in said case; therefore, the only disputed issues relate to the allegations of case number 16147.

Hearing was held in Miami, Florida, on March 30, 1976. Both parties appeared and presented evidence and subsequent to said hearing have submitted briefs. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

It was alleged that respondent violated standards 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a), in that respondent failed to provide protection to employees by use of safety belts, safety nets, or the equivalent, while working on top of an exterior concrete beam at the north side of area 4B of said construction site, exposing employees to a fall hazard of approximately 60 feet.

It was alleged that respondent violated. standard 29 C.F.R. 1926.451(a)(4), in that respondent failed to install guardrails and toeboards on all open sides and ends of scaffold platforms more than ten feet above the floor level at the 25-foot level of the hotel building and in the area between the existing Jordan Marsh building and the parking garage on said construction site.

It was alleged that respondent repeatedly violated ANSI A10.9–1970, Article 6.2.1., as adopted by standard 29 C.F.R. 1926.700(a) and 29 C.F.R. 1926.701(a)(1), at a worksite located at said construction project, in that respondent failed to provide formwork which was erected, supported, braced, and maintained so that it would safely support all vertical and lateral loads which might be imposed on said forms at approximately the 60-foot level of ares 4B. It was also alleged that said standards were violated, in that additional support was not provided under the prestressed joist with weakened 45 KIP hanger which was supporting the horizontal deck framework, thereby exposing employees installing the forms to fall injury hazards.

It was alleged that respondent repeatedly violated standard 29 C.F.R. 1926.500(d)(1) at said worksite, in that respondent failed to provide every open-sided floor or platform, six feet or more above adjacent or ground level, with standard guardrailing, or the equivalent, as specified in standard 29 C.F.R. 1926.500(f)(1), such as at the opensided perimeter of the 40-foot level of area 4B.

It was alleged that respondent repeatedly violated standard 29 C.F.R. 1926.500(d)(1), in that respondent failed to provide every open-sided floor or platform, six feet or more above the adjacent floor or ground level, with standard guardrailing, or the equivalent, as specified in standard 29 C.F.R. 1926.500(f)(1), such as at the open-sided north perimeter of the 3C area, second floor of the J. C. Penney building, said site being approximately 18 feet above the ground.

It was alleged that all of said violations were serious.

EVIDENCE AND EVALUATION OF THE CASE

The answers of respondent admitted that respondent is a corporation having a place of business and doing business in Miami, Florida, as a contractor engaged in forming and prestressed joint installation. It was admitted that respondent is and, at all times material to this cause, has been an employer engaged in a business affecting interstate commerce within the meaning of the Act.

As above-noted, it was alleged that respondent violated standards 29 C.F.R. 1928(a) and 29 C.F.R. 1926.105(a) by failing to provide and require the use of personal protective equipment, such as safety belts and safety nets. A penalty in the amount of $800 was proposed for this alleged violation.

Mr. Francis L. Silverberg, compliance officer for the complainant, testified that upon inspecting the premises on November 13, 1975, he observed an employee in the hotel section walking on an unguarded, exposed beam at an approximately 60-foot height in area 4B (Tr. 83). The employee walking on the beam was Al Suarez. Mr. Silverberg stated that Mr. Ray Dyer, vice-president in charge of construction for respondent, Acknowledged that Mr. Suarez was an employee of the respondent. Said employee did not have a safety belt tied off. Foreman Dwight Benson was just one level below Mr. Suarez, where he could easily observe said employee (Tr. 85). There was no safety net erected (Tr. 84). Mr. Dyer confirmed the fact that said employee did not have a safety belt tied off, but stated this was a violation of instructions (Tr. 28). He stated that the employee had a safety belt on, but it was not tied off (Tr. 28, 29). He confirmed the fact that there was no net (Tr. 30). Mr. Dyer also confirmed that the foreman was on the level below (Tr. 52).

Foreman Benson was himself standing at the edge of an unguarded perimeter without a tied off safety belt. Mr. Benson testified that he was installing joist at the 65—foot level (Tr. 130). He stated that the reason he was not tied off was because he was at the edge for only a very short period of time. He stated that if he was near the edge of a building for any length of time, he would fasten a safety belt, but that he walked between the two scaffold frames, and there was no danger of falling through the frames, so he felt it was unnecessary to fasten the end of the belt at that time. He was only going to be there a minute (Tr. 131).

Mr. Silverberg also observed that Mr. Benson did not have on a tied off safety belt (Tr. 95). Mr. Silverberg observed Mr. Benson a second time at the east side of the 45-foot level of area 4B throwing slings down to the ground level. He observed said foreman for five minutes standing at the very edge of the perimeter which was not protected by guardrail, or the equivalent, and said foreman did not have his safety belt tied off (Tr. 96, 97). Mr. Silverberg observed a 12 foot high scaffold at the 25-foot level of the hotel building. This scaffold had no guardrail, and employees working on it were not tied off (Tr. 88). This was the first day of inspection (Tr. 87). On the second day of inspection, he also observed employees on another scaffold that did not have guardrails, and said employees were not tied off (Tr. 89).

Mr. Benson testified that he had a safety belt on, although it was not tied off (Tr. 130). He testified that he was always instructed to fasten his safety belt each time he worked near the edge of the building, even in situations such as the one in which the compliance officer observed him on the day of inspection (Tr. 130, 131). He stated that by not wearing the safety belt, he was disobeying instructions (Tr. 131).

Mr. Sam MacDuffy, a foreman for the respondent, testified that when he saw employees dismantling a scaffold improperly and reported it to superintendent Lake, superintendent Lake said, ‘When you go back over there, you make sure those guys are hooked up and tell them I said ‘Get hooked up while taking down the scaffold’’ (Tr. 134).

Mr. Lake testified that his instructions are that any time an employee works on the edge, he is to hook up his belt. He pointed out that if an employee simply walks to the edge and drops something over and comes back, it would take longer to hook the belt than the time he would be there (Tr. 142, 143). He stated, however, that he never told a man not to tie off, even when walking to the edge for just a second (Tr. 46). On the contrary, his instructions were that no man was to walk to the edge without being hooked up on the edge (Tr. 146).

Mr. Dyer testified that the employee walking on the beam did not have a safety belt hooked up, but that he had been instructed to hook up (Tr. 28). Mr. Dyer also confirmed that people were instructed at all times to tie off if setting joist at the corner of the building (Tr. 46). Mr. Dyer stated that he could not be there on every occasion to observe every man all of the time, and that he was not aware that the man was working without tying off (Tr. 46).

There was also substantial evidence to the effect that it was possible to tie off. Mr. Dyer testified, for instance, that the safest way would have been for the employee to hook to the joist behind him each time and set the next one. As an alternative method, the employee could walk on the scaffold board, which is beside the beam at the same elevation (Tr. 47, 48). Said employee could be tied off at all times that other employees remain tied off (Tr. 53). He testified that the safety belt is connected to a line six feet long (Tr. 53). It could have been attached to the beam behind the employee, which is usually four feet behind where he is setting the next one (Tr. 53). If an employee wants to move to the next beam or the next joist, he could move four or five feet (Tr. 83, 54). An employee could tie off to the lifting hook and joist behind himself and then move out to set the other one. We could tie off to the steel column with a rope going along the top of the column of steel. He could have been walking down on a scaffold board and tied off to the scaffold plank, instead of walking the beam (Tr. 54). It was testified there was rope provided, but none was used at this site because it was not necessary (Tr. 54).

On the other hand, Mr. Thomas Callan, a carpenter employed by the respondent, testified that it is necessary to walk on joist and beams (Tr. 62, 63). The beams run in width from 16 to 24 inches (Tr. 63). There are places which have extended stirrups to which they can tie off (Tr. 63). He testified that when possible, he does tie off (Tr. 63). He stated when he has to get a joist, it is away from him, and he pulls it to him and has to walk several feet; and, in such a situation, he could tie off, but it frightens him to hook up because he is hooking at the bottom of his feet and with the safety belt hanging down, one could very well trip over it (Tr. 63, 64). Ropes have been run from column to column providing something on which to hook (Tr. 64). He testified that he is never in a situation where he is unable to tie off, but at times he has not done so (Tr. 64). He is instructed to tie off at all times (Tr. 64). He has also seen other employees that were not tied off (Tr. 65, 66). This does not happen as often as once a day (Tr. 66).

The respondent testified that it has disciplined employees for such infractions of rules. Mr. Dyer testified that a man was laid off because he did not tie off his safety belt. Said employee attempted to sue the respondent, according to said witness. Mr. Dyer stated he has laid off people previously for infractions of rules (Tr. 60).

It was testified that the foreman is responsible for seeing to the wearing and using of appropriate personal protective equipment (Tr. 127). Respondent has a rather extensive safety program, holding safety meetings and giving the employees written instructions requiring the wearing of belts.

Notwithstanding evidence of disciplinary action taken and repeated instructions given regarding the wearing of safety belts, the respondent does not appear to have adequately enforced the requirements that safety belts be worn. This is not an isolated instance in which an employee disobeyed respondent’s instructions. The employee walking the beam was not wearing a safety belt. His foreman, Mr. Benson, was on the level just below him at the time said employee was walking the beam, and Mr. Benson did not have on a safety belt. There was a second occasion when the compliance officer observed Mr. Benson on the edge of a high elevation which had no guardrail, and he was not tied off. Employees were observed working on scaffolds that did not have guardrails, and said employees were not tied off. This was seen in two different locations on two separate days.

As above-noted, an employee of the respondent testified that although it is possible to tie off at all times, he has not always done so, and that he has observed other employees working at elevations without tying off. It therefore appears that violation of the company’s rules as to employees working at high elevations tying their safety belts was not infrequent. This case is distinguishable from decisions holding that an unforeseen isolated occurrence is not chargeable to a respondent. The responsibility is upon respondent of requiring that employees work under safe conditions and comply with the standards. In view of the number of proven instances in which said standards were not complied with, the respondent cannot escape responsibility for the dangerous condition in which its employees worked. A penalty in the amount of $850 is proposed. In view of the numerous instructions given employees, both in writing and orally, and in view of disciplinary action taken in certain instances, the respondent apparently did make an effort, although not a successful one, to enforce its rules; therefore, a penalty in the amount of $500 would be adequate.

It was alleged that the respondent violated standard 29 C.F.R. 1926.451(a)(4) by failing to guard open sides of scaffolds. A penalty in the amount of $235 was proposed. It was alleged to be a repeat violation within the meaning of section 17(a) of the Act. It was stipulated that a previous citation involving the same standard had not been contested and Therefore, became a final order of the Commission by operation of law (Tr. 6).

Mr. Silverberg testified that he observed a scaffold at a high elevation which had no guardrails (Tr. 87, 88). The next morning he observed a similar scaffold in another area without guardrails. One of said scaffolds was 12 feet high (Tr. 87, 88, 89). Mr. Dyer admitted that the compliance officer called his attention to a particular scaffolding that did not have a guardrail (Tr. 35). Mr. Dyer admitted that employees were working on the scaffolding at the time, and that there was no guardrail (Tr. 35).

It is admitted by the respondent in its brief that the evidence shows the required guardrails and toeboards were not in-place. It was testified that the respondent’s employees were improperly advised by the insurance inspector as to the need for guardrails, and that when respondent learned of this misinformation, it required employees on the scaffolding to tie off to the side rails with their safety belts (Tr. 36).

Apparently, the respondent had not complied with the standard, and a violation occurred. The fact that the employees decided to follow the advice of the insurance representative does not absolve the respondent of responsibility. It will be noted that the employer had previously failed to contest a citation resulting from an inspection of several months before in which scaffolding was not properly guarded. A proposed penalty of $235 for a repeat violation is not unreasonable and should be affirmed.

It was alleged that the respondent violated standard 29 C.F.R. 1926.500(d)(1) by failing to guard an open-sided floor. This was alleged to be a repeat violation, and a penalty in the amount of $1,700 was proposed.

As above-stated, Mr. Benson was observed on two separate occasions standing on the edge of an unguarded perimeter and was not tied off. The second instance he was observed for five minutes throwing off slings. He was at an elevation of approximately 40 feet. In the previous citation, which was not contested, there was an allegation of violation of said standard by similar conduct. It is not disputed that guardrails were not installed. The respondent maintains, however, that its employees were instructed to wear safety belts. For the reasons set out above, this is not an adequate defense. The instances of violation of the safety belt rule are so frequent that the respondent cannot be absolved for disobedience of its instructions in this regard. Its employees were exposed in the absence of guardrails, which are required by the standard. Standard 29 C.F.R. 1926.500(d)(1) does not provide that guardrails should be erected only if the employees are not wearing safety belts. It is required that every open-sided floor or platform, six feet or more above adjacent floor or ground level, shall be guarded by standard railing, or the equivalent, except where there is entrance to a ramp, stairway or fixed ladder. A penalty in the amount of $1,700 is proposed for this violation. A penalty in the amount of $800 would be appropriate.

It was alleged that the respondent violated standard 29 C.F.R. 1926.500(d)(1) by failing to guard perimeter scaffolding which was being dismantled.

Mr. Thomas Callan testified that their instructions as to perimeter scaffolding were to pull them inside the building, loosen the screws, and dismantle them (Tr. 77). There were three carpenters and a couple of laborers on the floor taking apart the scaffolding. The carpenters were taking it down, and the laborers were stacking it up. One of said employees was standing at the bottom with his back toward the edge, about three or four feet from the edge. There were no guardrails or chains (Tr. 68, 69, 70). He lost his balance as they were letting the scaffold down, he fell over backward and rolled off the building. He later died (Tr. 70). They were at the 20 to 25-foot level. The employees would get to three feet, two inches from the edge to pull the scaffold in (Tr. 71). For two or three days they had been pulling the scaffolding down and dismantling it on the upper floor at the 45-foot level (Tr. 69, 70). Chains had been used, but they were not in use at the time of inspection (Tr. 71). Laborers, in dismantling, were three to four feet from the edge (Tr. 72).

Mr. Sam MacDuffy, one of respondent’s labor foremen, testified that just prior to the instance that gave rise to said citation, he had advised the men performing the dismantling that they were doing it improperly, and he informed Mr. Lake, job superintendent, of same. He thereafter instructed them to use their safety belts (Tr. 133–136).

It was the contention of the respondent that the responsibility for erecting guardrails after dismantling was that of the general contractor. In the brief, the position is taken that it would be impossible to perform the work with the guardrails in position. The evidence, however, does not substantiate this contention. No evidence is found, nor is any cited by respondent, to the effect that it was impossible to perform the work with the guardrails erected. It will be noted that the testimony was that the work had continued for two or three days. Certainly, this gave sufficient time for the respondent to have ascertained whether it was being done properly or not. Safety belts were not being used, and there was no protection against an employee falling. An employee did fall with tragic results. It is not sufficient to say that they had contracted for the general contractor to perform said work. There is no indication that they complained that the general contractor had not done so, nor that it would have caused any problem with the general contractor had they done so themselves. Responsibility for its own employees being in a safe condition is the responsibility of the respondent, irrespective of a contract with the general contractor. A company cannot contract away its legal obligations under the Act. It is a repeat violation, and the requested penalty of $1,085 would appear to be proper.

The above instances cannot each be taken in isolation. There were a number of instances in which employees were working at high elevations without safety belts. It will be noted that there were at least three instances in which employees were working at high elevations without the guards required under the Act. The respondent cannot claim ignorance of the law as an excuse for these violations. Only four months before, there had been a citation issued which was not contested, and which in the main involved the same type of violations as those involved in the case at bar. The overall record of the respondent does not indicate safeguard of employees working at substantial heights.

It was alleged that formwork erected by respondent was not adequately supported, braced, and maintained so that it would safely support all vertical and lateral loads. It was also alleged to be a repeat violation. Prestressed members were manufactured and delivered to the job by the respondent (Tr. 16). It would all be poured at one time, except for the columns (Tr. 17). The job on this site was to prepare the horizontal columns; another contractor was to prepare the vertical columns (Tr. 17). Soffit was described as a prestressed member which takes the place of a poured-in-place beam. It was testified by Mr. Dyer that they prestress the soffit beam member, which is the bottom of the beam, and then set the prestressed joist on it and pour them together (Tr. 18).

The beam carries the load of the joist and the total floor load. The joist carries only a portion of the load each time, and is spaced closer together (Tr. 18). Twenty-five KIPS is the number of tons of weight that the KIP hanger will carry. This hanger is designed where there is an expansion joint. The slab in the hanger is poured one way and the beams are poured the other way, so they have a separation of the building; and, when the building starts to move or work, the slabs and beams do not crack (Tr. 19). The KIP hanger was made from reinforced steel (Tr. 19). The bar extends out so that if concrete started to crack, the steel bar would stop the concrete from cracking (Tr. 20). Vertical bars are the supports. Two bars carry the load of the prestressed member. They lift the prestressed joist with a crane, and it is set in a concrete beam (Tr. 20, 22, 23, 24). It is not welded (Tr. 24, 25). The joist hangs below the beam. They lay the beam out where the joist is set and hoist it with a crane and set it in place (Tr. 25). Generally, three or four employees are involved in the erection, not including the crane operator (Tr. 26). A man on a truck hooks it up and sends it to them. One employee is at each and of the joist (Tr. 26). The joist at the 60-foot level fell three or four feet (Tr. 37). In doing so, it caused Mr. Benson to fall a distance of 17 or 18 feet (Tr. 37).

Mr. Dyer stated that upon inspection, he found that there was a void below the vertical member (Tr. 39). Scaffolding beneath the beam was to support the soffit beam (Tr. 46). The procedure was to loosen the screws, pull the scaffolding in a good clear distance away from the outside of the building, and then dismantle it (Tr. 49). Instructions were to take it down as usual and pull the perimeter scaffold into the building (Tr. 79).

Mr. Silverberg stated that there was a concrete void directly under where the vertical bar comes down from the hanger plate to the top of the prestressed joist (Tr. 92). At the time the joist fell, the employees were in the process of laying the plywood decking which lays on the hanglines which are attached to the joist (Tr. 94).

Mr. Sam MacDuffy, foreman, testified that he had observed employees dismantling the scaffold. He stated three men were near the perimeter of the building. He stated they were dismantling the scaffold improperly, and he went to tell superintendent Lake, and the superintendent told him to make them put on safety belts (Tr. 133, 134). He stated laborers and carpenters stopped him along the way, and it took him a while to get back (Tr. 134). When he returned, he heard that a man had fallen (Tr. 135, 136). He stated that his job is to tell the superintendent, rather than the employees, if they are doing vertical member of the KIP responsibility is just to assign the employees where they are to work (Tr. 137).

It is the position of the complainant that what caused the fall was the weakened KIP hanger, and that the hanger was weakened because it was void in the joist, thereby not properly imbedding the vertical member of the KIP hanger. Mr. Dyer stated that in his opinion, the vertical member had not been set into the concrete (Tr. 39).

Standard 29 C.F.R. 1926.701 states as follows:

. . . Formwork and shoring shall be designed, erected, supported, braced, and maintained so that it will safely support all vertical and lateral loads that may be imposed upon it during placement of concrete.

The respondent maintains that evidence does not establish the cause of the fall, and that to find the respondent in violation would be to adopt the doctrine of res ipsa loquitur. In view of the above testimony, not only of the compliance officer, but also of the vise-president of the company, that the problem was that the vertical member was not properly set in concrete, there is material evidence establishing a cause for the fall. The respondent was the manufacturer of said vertical member, and apparently it was not manufactured in such a way as to support the lateral loads imposed upon it. The laying of plywood decking was a part of the operation of placement of concrete and standard 29 C.F.R. 1926.701 applies. Respondent, therefore, is in violation of said standard.

There had been a prior citation in which there had been a failure to provide formwork insuring adequate support, bracing, etc. This citation was not contested. A defect of this nature could have very tragic consequences. It is true that some errors will creep into most types of construction. In view, however, of the fact that this is a repeat violation and the fact that the penalty proposed is only $285, it does not appear that said penalty is excessive.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and doing business in Miami, Florida, where it is a contractor engaged in forming and prestressed joint installation. Respondent, at all times relevant to this cause, has been engaged in business affecting interstate commerce within the meaning of the Act.

2. On or about November 13–17, 1975, the respondent was engaged in construction at the Omni construction project at 350 Northeast 15th Street, Miami, Florida.

3. During said period of time, an employee of respondent was permitted to work on an exterior beam at a 60-foot level, without wearing a safety belt or without the erection of a safety net.

4. The foreman of said employee was working at a location from which said employee was visible.

5. Said foreman, Mr. Benson, was on two occasions working close to the edge of an unguarded perimeter at a high elevation without a safety belt.

6. Employees worked on scaffolds which were unguarded, and said employees did not have their safety belts tied off.

7. Employees, on prior occasions, had worked at unguarded high elevations without safety belts.

8. The rules of respondent required its employees to wear safety belts when working at high elevation which were unguarded, and said employees had been so instructed.

9. Some employees had been disciplined for violation of the rules with reference to tying off of safety belts.

10. Respondent maintained scaffolds at a high elevation at which its employees worked; said scaffolds did not have guardrails or toeboards.

11. Respondent permitted its employees to work on open-sided floors which did not have guardrails or toeboards.

12. Employees were permitted by the respondent to engage in dismantling a perimeter scaffold which was at a high elevation and had no perimeter guardrail or equivalent protection.

13. Respondent manufactured and erected a vertical beam which was not properly set in concrete and fell, causing an employee to fall to his death.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. Respondent violated standards 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a) by permitting its employees to work at high elevations without safety belts and safety nets.

3. Respondent violated standard 29 C.F.R. 1926.451(a)(4) by failing to guard open sides of scaffolds with proper guardrails and toeboards; said violation was a repeat violation.

4. Respondent violated standard 29 C.F.R. 1926.500(d)(1) by failing to guard every open-sided floor with proper guardrails and toeboards.

5. Respondent violated standard 29 C.F.R. 1926.500(d)(1) by failing to guard an open-sided floor at the time employees were engaged in dismantling perimeter scaffolding.

6. Respondent violated standards 29 C.F.R. 1926.700(a) and 29 C.F.R. 1926.701(a)(1) by failing to provide formwork which was erected, supported, braced and maintained so that it would safely support all vertical and lateral loads.

ORDER

Respondent is in violation of standards 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a) by failing to require its employees to tie off safety belts while at a high elevation and by failing to provide safety nets. A penalty in the amount of $500 is assessed for said violation. The proposed abatement date is affirmed.

Respondent is in violation of standard 29 C.F.R. 1926.451(a)(4) by failing to guard open sides of scaffolds. This is a repeat violation. A penalty in the amount of $235 is assessed for said violation. The proposed abatement date is affirmed.

Respondent is in violation of standard 29 C.F.R. 1926.500(d)(1) by failing to guard the open-sided floor on which its foreman was standing near the edge. This is a repeat violation. A penalty in the amount of $800 is assessed for said violation. The proposed abatement date is affirmed.

Respondent is in violation of standard 29 C.F.R. 1926.500(d)(1) by failing to guard every open-sided floor while its employees were dismantling perimeter scaffolding. This is a repeat violation. A penalty in the amount of $1,085 is assessed for said violation. The proposed abatement date is affirmed.

Respondent is in violation of standards 29 C.F.R. 1926.700(a) and 29 C.F.R. 1926.701(a)(1) by failing to provide formwork which is erected, supported, braced, and maintained so that it would safely support all vertical and lateral loads. A penalty in the amount of $285 is assessed for this violation. The proposed abatement date is affirmed.

Dated this 27th day of July 1976.

JOHN S. PATTON

Judge