UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 76-0088
STAHR AND GREGORY ROOFING CO., INC.,
January 4, 1979
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
BY THE COMMISSION:
A decision of Administrative Law Judge Harold A. Kennedy is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [‘the Act’]. In his decision, Judge Kennedy affirmed two nonserious violations of the Act for failure to comply with the standards at 29 C.F.R. § 1926.450(a)(9) and 29 C.F.R. § 1926.500(b)(1). No penalty was assessed for the former violation. A penalty of $30 was assessed for the latter. The Judge also affirmed a serious violation for failure to comply with the standard at 29 C.F.R. § 1926.500(d)(1) with respect to the perimeter of the second floor. A penalty of $50 was assessed for the serious violation.
Neither party filed a petition for discretionary review of the Judge’s decision. On December 22, 1976, former Commissioner Moran directed that the case be reviewed by the Commission ‘for error.’ The Secretary of Labor did not file a brief on review. Respondent asked the Commission to consider on review the same arguments that it urged before the Judge.
Stahr and Gregory was the roofing contractor on a two-story service and office building at a power plant under construction in Cason, Texas. Most of the facts are not in dispute. Respondent’s nine or ten employees on the jobsite climbed up to the roof three times a day on each of the three or four days they were at the inspected worksite. They reached the roof by ascending two ladders. The first was a wooden ladder extending from the ground level to the second floor on the outside of the building. After stepping off the ladder at the edge of the second floor, which was about 4 feet above ground, the employees walked toward the interior of the structure past an unguarded floor opening to the second ladder.
The employees stepped off the first ladder to their left. The edge of the second floor was completely unguarded for some distance in that direction. Immediately to the right of the first ladder was a vertical steel beam. The floor opening extended toward the center of the building directly behind the vertical beam. A second vertical beam was located at the far end of the opening, directly behind the first vertical beam when the two beams are viewed from the outside edge of the second floor. Thus, the floor opening was about 2 feet to the employees’ right as they stepped off the ladder onto the second floor. When following the normal route to or from the roof, the employees were closest to both hazards when stepping on or off the first ladder.
Between the two vertical beams on the second floor referred to above, an unknown person had strung a sagging rope at a height of about 35 inches along the side of the floor opening closest to the path respondent’s employees used. The ladder of another subcontractor had been placed in a vertical position near the innermost end of the floor opening. It is unknown how long the ladder either had been or would be so positioned. The compliance officer agreed with respondent’s witnesses that the rope and ladder would serve as a warning to workers of the floor opening. Respondent’s foreman, Melvin King, testified that respondent did not warn its employees about the hole, but that everyone knew it was there.
The second ladder was a permanently-affixed metal ladder that ran from the second floor to the roof through a 3 foot by 3 foot ‘scuttle hole’ in the roof. The side rails of the second ladder extended only 3 or 4 inches above the roof level. No grab rails were provided. The flat roof was approximately 24 feet above ground.
The general contractor was responsible for erecting guardrails on the jobsite and provided both of the ladders used by respondent’s employees. Respondent knew about the cited conditions, but did not request the general contractor to correct any of them. Although respondent normally warns its employees about the edges of buildings and unguarded floor openings, no such warnings were given on this jobsite.
Judge Kennedy found that respondent’s employees had been exposed to all three noncompliant conditions. We agree with the Judge that the facts support the Judge’s finding that respondent’s employees had access to the hazards presented by the lack of sufficient siderail extension on the upper ladder, the open second floor perimeter, and the unguarded floor opening. The test to be applied here is whether respondent’s employees were shown to have had access to the hazards presented by the violative conditions. Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD para. 20,448 (No. 504, 1976).
The test is met with respect to each of the hazardous conditions cited here. Respondent had nine or ten employees at the worksite for a period of three or four days. The employees climbed to the roof three times daily. There was no perimeter protection in the area where respondent’s employees got on and off the lower ladder at the edge of the second floor. The employees passed within 2 to 8 feet of the floor opening while proceeding between the upper and lower ladders. When coming down from the roof, it would be necessary for some of any group of employees to wait at an area close to both hazards while individuals started down the lower ladder. Moreover, the hazards presented by the unguarded perimeter near the ladder and the inadequately protected floor opening were located such that for the employees to avoid one hazard, they would likely approach closer to the other. The upper ladder was the only means used by the employees to go between the second floor and their place of work on the roof. Although the exposure of each of respondent’s employees to individual cited hazards may have been relatively brief when viewed singly, clearly access to the hazards has been established. In any event, brevity of exposure does not negate the finding of a violation. American Bechtel, Inc., 77 OSAHRC 214/A2, 6 BNA OSHC 1246, 1977–78 CCH OSHD para. 22,466 (No. 11340, 1977). Rather, duration of exposure is a factor to be considered in determining the gravity of the violation for the purpose of penalty assessment. Id.
The Judge then addressed the issue of respondent’s liability in terms of the defense afforded construction subcontractors by the Commission decisions in Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975–76 CCH OSHD para. 20,691 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD para. 20,690 (No. 4409, 1976), which were issued by the Commission two days before the hearing in this case. The Judge found that Stahr and Gregory had knowledge of the hazardous conditions in question but did not create or control them. The Judge also found, in agreement with respondent’s contentions, that it did not have the means to install guardrails because of union jurisdictional rules and lack of training and equipment, and that respondent was unable to construct and install handrails or grabrails on the metal ladder because it was a permanent, structural feature of the building. In addition, the Judge found that safety belts and lifelines were unrealistic as a means of protection while employees were getting on or off the ladder at the edge of the second floor.
Judge Kennedy noted that the general contractor was contractually responsible for guardrails. The Judge also observed, however, that Stahr and Gregory made no attempt to have the general contractor correct any of the cited conditions. In addition, the Judge found that respondent did not instruct its employees to avoid the cited hazards. Accordingly, he affirmed the three citations.
We agree that the Judge properly concluded that respondent has failed to establish the defense made available to construction subcontractors by the Commission decisions in Anning-Johnson, supra and Grossman Steel, supra. We recognize that respondent neither created the violative conditions nor was capable of abating them in the manner contemplated by the cited standards. Nevertheless, it was incumbent upon respondent to take those alternative measures that were available to protect its employees. J. H. MacKay Electric Company and U. S. Engineering Company, —— OSAHRC ——, 6 BNA OSHC 1947, 1978 CCH OSHD para. 23,026 (Nos. 16110 & 16111, 1978). In this case the record shows that respondent made no attempt to implement alternative methods of employee protection. Respondent argues that complaining to the general contractor would have been of little value. This contention is unpersuasive. Each of the cited conditions presented a fall hazard of about 14 feet. Consequently, merely complaining to the general contractor would have been presumptively inadequate, in any event, because of the seriousness of the hazards confronting respondent’s employees and because of respondent’s failure to demonstrate that other means of employee protection were unavailable. J. H. MacKay, supra, n. 6. Therefore, respondent’s asserted defense must fail. See, e.g., Ray Boyd Plaster and Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD para. 22,794 (No. 76–814, 1978).
Finally, the Judge properly took into consideration respondent’s safety program and the brief exposure of respondent’s employees when he assessed the proposed penalty of $30 for the nonserious violation and reduced the penalty for the serious violation from the $500 proposed to $50. No penalty was proposed for the ladder violation and none was assessed. Having considered the penalty assessment criteria set forth at section 17(j) of the Act, we find the Judge’s assessment of penalties to be appropriate.
Accordingly, the Judge’s decision is affirmed.
FOR THE COMMISSION:
RAY H. DARLING, JR.
DATED: JAN 4, 1979
BARNAKO, Commissioner; concurring in part and dissenting in part:
I agree with the majority opinion that Stahr and Gregory (S & G) violated the standard at 1926.450(a)(9) by using, without grab rails, the metal ladder with side rails that only extended 3 or 4 inches above the roof landing. I would, however, vacate the 1926.500(b)(1) allegation with respect to the inadequately-guarded floor opening and the 1926.500(d)(1) allegation with respect to the unguarded, open-sided floor.
I would vacate the alleged violation of 1926.500(b)(1) because the record does not establish that S & G’s employees were exposed to the hazard. See Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD para. 20,448 (No. 504, 1976). As indicated in the majority opinion, the floor opening involved was on the second floor level and was partially, although inadequately, guarded by a length of rope that sagged to a height of 35 inches; an aluminum ladder, pitched between the floor and a ceiling beam, was positioned in front of the rope. The evidence established that the only time the employees were on the second floor level was to gain access to the roof. S & G’s employees traveled from the ground to the second floor by using a wooden ladder placed against the exterior edge of the open-sided second floor. The employees had to step off the left side of the ladder onto the second floor because the right side of the ladder was lashed to a vertical steel beam at the second floor level for stability. The relevant floor opening was located diagonally behind the right side of the wooden ladder. Once on the second floor, the employees had to walk diagonally to their left in order to reach the metal ladder which lead to their ultimate destination on the roof. The inadequately-guarded floor opening was, therefore, located in the opposite direction of the path that the employees had to take to get to the metal ladder. To return to the ground level, the employees would reverse their previously indicated steps and approach the wooden ladder from the side that was not lashed to the steel beam, the side of the ladder furthest from the inadequately-guarded floor opening.
In my view, the zone of danger for employees is much nearer to the edge of an opening when some perimeter protection is provided than when none is present. See Frank C. Gibson, 78 OSAHRC 32/E7, 6 BNA OSHC 1557, 1978 CCH OSHD para. 22,686 (No. 13925, 1978). This is true here since the sagging rope and aluminum ladder served as a warning to the employees of the floor opening. As the evidence above indicates, the S & G employees were not shown to have entered or to have reason to enter the danger zone created by the inadequately-guarded floor opening. Moreover, it is pure speculation to suggest, as the majority does, that the employees loitered around the floor opening while massed on the second floor waiting to get down the wooden ladder. Therefore, because the record does not establish that employees entered or had reason to enter the danger zone created by the inadequately-guarded floor opening, the Secretary has not established a violation. See my separate opinion in Otis Elevator Co., 78 OSAHRC ___/___, 6 BNA OSHC 2048, 2052–53, 1978 CCH OSHD para. ___ (No. 16057, Oct. 13, 1978).
I would also vacate the alleged 1926.500(d)(1) unguarded, opensided floor allegation. Although the guardrail was absent from the entire length of the second floor, the record does not establish any exposure to a fall hazard except at the area immediately adjacent to the ladder and then exposure was present only briefly when the employees alighted from or stepped onto the ladder. Although the majority apparently agrees with this finding, they nevertheless find a violation without addressing S & G’s main contention advanced at the hearing, that a guardrail provides no protection to employees while they are alighting from or stepping onto the ladder since the railing must be removed during that time to permit access to the floor or ladder.
Common sense dictates that guardrails cannot be in place immediately adjacent to the ladder when employees are getting on or off the ladder. Only if guardrails are absent at this point can employees reach the ladder or floor without having to risk a fall by climbing over or crawling under the guardrails, and of course, if guardrails are absent they can not serve any safety function. Because exposure was limited to the area immediately adjacent to the ladder and because the guardrails must be removed at the only point in time when employees were exposed to the hazard, I would vacate the citation.
I would further note, however, that the cited standard is inapplicable to the hazard to which the compliance officer stated the citation was addressed. The compliance officer testified that guardrails were needed as a device which employees could hold while getting on and off the ladder. He stated, ‘Well, any time you use a ladder on the outside perimeter of a building there is always a probability of falling and you got to make sure you catch hold of the ladder.’ The standard at 1926.500(d)(1) is not addressed to this hazard. Indeed even though the compliance officer recommended guardrails for this hazard, he also stated, in relation to another citation, that side rails extending not less than 36 inches above the landing, as required by 1926.450(a)(9), would provide protection against falls for employees who were getting on or off a ladder. I agree. Moreover, the testimony and exhibit SX–7 establish that the wooden ladder had side rails extending 36 inches above the landing. Therefore the evidence establishes that S & G had provided protection for the hazard to which the compliance officer stated the citation was addressed.
 The cited standard, 29 C.F.R. § 1926.450(a)(9), states:
§ 1926.450 Ladders
(a) General requirements
(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.
 The cited standard, 29 C.F.R. § 1926.500(b)(1), states in relevant part:
§ 1925.500 Guardrails, handrails, and covers.
(b) Guarding of floor openings and floor holes.
(1) Floor openings shall be guarded by a standard railing and toeboards or cover . . . In general, the railing shall be provided on all exposed sides . . .
 The cited standard, 29 C.F.R. § 1926.500(d)(1), states in relevant part:
§ 1926.500 Guardrails, handrails, and covers.
(d) Guarding of open-sided floors, platforms, and runways.
(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder . . ..
 The serious citation alleged a failure to provide perimeter guarding in accordance with the standard at 29 C.F.R. § 1926.500(d)(1) with respect to the second floor and the roof. Judge Kennedy found that the cited standard was not applicable to the roof based on the Commission decision in Central City Roofing Co., Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976–77 CCH OSHD para 20,761 (No. 8173, 1976). Inasmuch as the disposition of the Judge is not adverse to respondent regarding the issue of the applicability of the cited standard to the flat roof here, and the issue is not one of compelling public interest, we will not address it. See Union Camp Corp., 77 OSAHRC 166/A2, 5 BNA OSHC 1799, 1977–78 CCH OSHD para. 22,103 (No. 12203, 1977). The Judge, however, did not include any reference to the roof citation in his Order. Accordingly, the portion of the serious citation alleging a violation of the Act for failure to guard the perimeter of the roof is hereby vacated.
 Judge Kennedy in his decision states that the record does not suggest that any significant hazard is presented by the lack of adequate handrails on the metal ladder and that the Secretary could have cited the condition as de minimis. The Judge also states that respondent’s employees need not, and did not, go close enough to the floor opening to be in any danger of falling. These remarks, standing alone, could be interpreted to indicate a finding of lack of exposure to the cited conditions. The remarks are made in the context of the Judge’s discussion of penalty assessment. The Judge, however, also specifically finds exposure of respondent’s employees to each of the violative conditions. Therefore, in light of his decision as a whole, we interpret the above language as a finding of low gravity with respect to the ladder and floor opening violations.
 In Gilles & Cotting, I set forth the test I would apply to establish employee exposure. I stated that exposure need not be based on actual exposure but could also be based upon a rule of access grounded upon reasonable predictability that employees will be, are, or have been in a zone of danger. Absent an admission by the respondent, however, I stated that I would require the Secretary to establish access by evidentiary facts.
 See transcript at page 27.