Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 3344

UNDERHILL CONSTRUCTION CORP.,

Individually and DIC CONCRETE,

Individually, Trading as DIC-UNDERHILL, A

JOINT VENTURE

Respondents.

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

On July 8, 1974, Judge David G. Oringer issued a decision affirming citations issued to

the respondent for one serious and five nonserious violations of the Occupational Safety and

Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter referred to as ‘the Act’]. A sixth alleged

nonserious violation was found to have merged with the serious violation.

The decision of the Judge was directed for review before the Commission by

Commissioner Moran pursuant to section 12(j) of the Act on August 7, 1974. The order for

review was issued sua sponte on the following issues:

(1) Was there sufficient evidence to justify the Judge’s conclusions of law?

(2) Does the pending case, involving the same parties (OSAHRC Docket No.

1307) and involving an alleged noncompliance with the same occupational safety

and health standard, constitute a bar to this case or have any effect thereon?

(3) Do the provisions of 29 C.F.R. § 1926.1050 render the standards inapplicable

in this case?

Having reviewed the record in this case, we affirm the decision of the Judge.

Dic Concrete Corporation and Underhill Construction Corporation, are corporations

organized under the laws of the State of New York doing business as Dic-Underhill, a Joint

Venture [hereinafter ‘respondent’]. During the period from May 4, 1973 through May 8, 1973,

an inspection was conducted at a construction site at 25th Street and FDR Drive in New York,

New York. Respondent was engaged in erecting the concrete superstructure for several high-rise

buildings and a garage at that site. As a result of the inspection, two citations were issued. A

citation alleging a serious violation of the Act for failure to comply with the standard at 29 CFR

§ 1926.500(d)(1) was issued on May 8, 1973. A second citation alleging six nonserious

violations and a notification of proposed penalty were issued to respondent on May 18, 1973.

On June 8, 1973, respondent filed its notice of contest in this case. Judge Oringer found

that only the six items of the nonserious citation and the proposed penalties for those six items

were put in issue by the notice of contest. The serious citation and the attendant § 1,000 proposed

penalty were held to have become final orders by operation of section 10(a) of the Act. It is

respondent’s position that the notice of contest also placed in issue the serious citation of May 8,

1973, and the penalty therefor.

We agree with the Judge’s disposition of this issue. It is well settled that matters not

contested within 15 working days of receipt of the citation become final orders as a matter of

law. Section 10(a) of the Act; Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 487 F.2d 230

(5th Cir. 1973); Florida East Coast Properties, Inc., No. 2354 (February 5, 1974), 6 OSAHRC

404, BNA 1 OSHC 1532, CCH 1973–74 OSHD para. 17,272. Construed in a manner most

favorable to respondent, the notice of contest in this case is express and unequivocal in

contesting only the citation of May 18, 1973, and the penalties proposed for that citation.

Hence, the citation of May 8, 1973, had become a final order under the terms of section 10(a) of

the Act.

A penalty of $1,000 was proposed for the alleged serious violation. The six alleged nonserious

violations and respective proposed penalties were as follows:

Item Standard allegedly violated Proposed Penalty

1 29 CFR § 1926,100(a) $210

2 29 CFR § 1926.25(a) 65

3 29 CFR § 1926.500(d)(1) 210

4 29 CFR § 1926.24 90

5 29 CFR § 1926.252(a) 160

6 29 CFR § 1926. 45 0(a)(10) 210

The only notice of contest reads as follows:

Reference is made to the Citation dated May 18, 1973, issued with respect to the

above project consisting of six items and the Notification of Proposed Penalty

with respect to the foregoing.

You are hereby notified in behalf of Underhill Construction Corp. and Dic-

Underhill, A Joint Venture that we hereby contest all items of said Citation and

the proposed penalties with respect thereto.

Moreover, there is no factual basis that respondent was mislead either by the fact that

both citations alleged noncompliance with the standard at 29 CFR § 1926.500(d)(1), or by the

fact that a single notification of proposed penalty accompanied only the nonserious citation. Cf.

Atlantic Marine, Inc. v. O.S.H.R.C., 524 F.2d 476 (5th Cir. 1975). Respondent was already in

possession of the citation of May 8 when the notification of proposed penalties and citation of

May 18 were served. The alleged failures to comply with the standard at 29 CFR §

1926.500(d)(1) contained in the two citations specifically referred to different locations. The

listing of proposed penalties also expressly differentiates between the earlier serious violation

and the nonserious violations. Respondent used precise language in its notice of contest that

referenced only the latter citation and the penalties proposed therefor. We, therefore, find no

evidence of prejudice to respondent with respect to the filing of its notice of contest.

II.

Respondent further asserts several broad arguments that all citations and penalties should

be vacated. We consider these arguments only to the extent that they are applicable to the

citation alleging nonserious violations.

First, it is argued that because respondent began negotiation on the contract before April

21, 1971, for the particular job involved in this case, the exemption found at 29 CFR §

1926.1050 is applicable. Respondent would construe the exemption as placing work resulting

from the contracts described in the standard outside the Act.

This argument has previously been rejected by the Commission and by the Second

Circuit in Underhill Construction Co. v. O.S.H.R.C., 526 F.2d 53 (2d Cir. 1975); and by one

district court in United States v. J. M. Rosa Construction Co., Inc., Civil Action No. B–637 (D.

Conn., April 2, 1973), BNA 1 OSHC 1188, CCH 1971–73 OSHD para. 15,643. We reject the

argument here for the reasons stated in Underhill and Rosa.

There also is no contention that the issuance of the citations and notification of proposed

penalties did not comply with the appropriate regulations of the Secretary. See Atlantic Marine,

Inc. v. O.S.H.R.C., supra.

The standard at 29 CFR § 1926.1050 reads as follows:

Except where different effective dates are specifically provided in [§§ 1926.1051

and 1518.1051, respectively] the safety and health standards published in Subpart

C through U of this part shall become effective on April 24, 1971, for all Federal

and federally assisted advertised contracts subject thereto which are advertised

after that date and on April 27, 1971, for all such negotiated contracts for which

negotiations begin after that date.

Second, the Judge found item 3 of the ‘nonserious’ citation to have merged with the

serious citation. Although the specific holding of merger is not disputed on review, respondent

argues generally against the propriety of any citation in this case involving the standard at 29

CFR § 1926.500(d)(1). We consider it appropriate to address these arguments in the context of

‘nonserious’ item 3.

Respondent urges that citation in this case, alleging a violation of the standard at 29 CFR

§ 1926.500(d)(1), is improper because it had previously been cited for noncompliance with the

same standard at this worksite. The 1972 citation had been contested by respondent. As

authority for its position in this case, respondent argues that section 10(b) of the Act precludes

further citation at the same project until a final order has issued in the earlier case.

We disagree. Respondent’s argument ignores the fact that the conditions cited in the

present case are different from those in the earlier citation. Acceptance of respondent’s argument

would set an artificial limit of a single inspection per workplace, regardless of the size of the

workplace. The result would derogate from the statutory protection of workers particularly

where, as here, the size of the project is great and the hazards are transitory. There is no

infringement upon respondent’s rights because section 10(b) of the Act provides for tolling the

abatement period where a timely notice of contest is filed ‘. . . in good faith and not solely for

delay or avoidance of penalties.’ Respondent’s claim of harassment is without merit on the facts

of this case.

Insofar as it applies to nonserious item 3 alleging noncompliance with the standard at 29

CFR § 1926.500(d)(1), we reject respondents argument that the cited standard does not apply to

concrete construction. Dic-Underhill, A Joint Venture, No. 3725 (July 24, 1974) (Administrative

Law Judge), aff’d by the Commission, October 16, 1975, 20 OSAHRC 534, BNA 4 OSHD

1051, CCH 1975–76 OSHD para. 20,067.

III.

The final issue on review is whether the evidence of record established the violation of

the Act found by the Judge. Having reviewed the entire record, in this respect, we affirm the

decision of the Judge with respect to each violation found and the penalties assessed. We

specifically adopt the findings of fact and the reasoning applied by Judge Oringer.

Item 3 of the citation issued May 18, 1973, alleged a failure to comply with the standard at 29

CFR § 1926.500(d)(1) with respect to conditions on the roof of building F and one side of the

third floor in building D.

The 1972 citation referred only to conditions in building C.

The inspection and citations in this case followed the 1972 inspection and citation by nearly a

year.

So ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: OCT 18, 1976

BARNAKO, Chairman, Concurring:

I concur in affirming the Judge’s decision for the reasons stated by Commissioner Cleary.

I do not, however, join in the discussion regarding the propriety of Respondent having been cited

for allegedly violating 29 C.F.R. § 1926.500(d)(1) while it was contesting before the

Commission a prior citation for a violation of the same standard at the same worksite.

Respondent defended against the first citation on the ground that the standard, which requires

guardrails around the perimeters of open-sided floors, does not apply to employees engaged in

concrete construction because of the applicability of a more specific standard. Respondent

contends that requiring it to erect guardrails at all locations of the jobsite except those

specifically mentioned in the first citation, while the validity of its defense is being litigated

before the Commission, is contrary to 29 U.S.C. 659(b), which provides that the abatement date

specified in a citation is tolled during a good faith contest of the citation.

The issue raised is a significant one. As Commissioner Cleary points out, however, the

nonserious citation for violation of § 1926.500(d)(1) was vacated by the Judge on grounds which

are not before us. Additionally, the serious citation has become a final order by operation of law.

Accordingly, resolution of Respondent’s argument concerning the propriety of these citations is

not necessary for the disposition of this case, and I express no opinion regarding it.

MORAN, Commissioner, Dissenting:

For the reasons expressed in my dissenting opinion in Secretary v. Underhill

Construction Corporation, 15 OSAHRC 366 (1975), the construction standards cited in the

instant citations were not applicable to the respondent by virtue of the exemption contained in 29

C.F.R. § 1926.1050 because the contract on which respondent was working at the time of the

Section 1926.1050 provides

Except where different effective dates are specifically provided in § 1926.1051,

the safety and health standards published in Subparts C through U of this part

shall become effective on April 24, 1971, for all Federal and federally assisted

advertised contracts subject thereto which are advertised after that date and on

alleged violations was executed before April 21, 1971. In that opinion, I also explain why the

finality provision in 29 U.S.C. § 659(a) is not applicable in such a situation. Accordingly, both

citations should be vacated in their entirety.

My colleagues rely on Underhill Construction Corporation v. OSAHRC, 526 F.2d 53 (2d

Cir. 1975) and United States v. J.M. Rosa Construction Co., No. B–637 (D. Conn., April 2,

1973), to reject respondent’s exemption argument. In Secretary v. Underhill Construction

Corporation, supra, I traced the regulatory history of 29 C.F.R. § 1926.1050, explained why the

exemption therein was extended to cover all construction contracts when the scope of the

applicability of the 29 C.F.R. Part 1926 construction standards was expanded to include all

construction, and pointed out why the Commission should not rely on the Rosa decision. There is

no need to repeat what I have said in Underhill, However, I am constrained to register my

disagreement with the majority’s reliance on the Circuit Court opinion in Underhill Construction

Corporation v. OSAHRC, supra.

Subsequent to adopting 29 C.F.R. Part 1926 as occupational safety standards for all

construction, the Secretary of Labor attempted to clarify what portions of Part 1926 had in fact

been adopted. Thus, on February 17, 1972, an additional paragraph was published in the Federal

(1972). That paragraph provides in pertinent part:

‘This section adopts as occupational safety and health standards under section 6 of

the Act the standards which are prescribed in Part 1926 of this chapter. Thus, the

standards (substantive rules) published in Subpart C and the following subparts of

Part 1926 of this chapter are applied. This section does not incorporate Subparts A

and B of Part 1926 of this chapter. Subparts A and B have pertinence only to the

application of section 107 of the Contract Work Hours and Safety Standards Act

(the Construction Safety Act) . . ..’

If the Secretary had intended to exclude 29 C.F.R. Subpart X, which contains section

1926.1050, it is only logical that he would have so stated specifically as he did in regard to

Subparts A and B. To the contrary, however, he stated that ‘Subpart C and the following subparts

. . . applied.’ Since the Secretary very carefully and specifically excluded two subparts, it should

not be implied that others were also excluded. See Diamond Roofing Co. v. OSAHRC, 528 F.2d

645, 648 (5th Cir. 1976).

Nevertheless, the Second Circuit takes the position in Underhill that, although not

specifically excluded in § 1910.12(c), § 1926.1050 is excluded by implication. The Court

concluded that since § 1926.1050 does not require ‘conditions, or the adoption or use of one or

more practices, means, methods, operations, or processes, reasonably necessary or appropriate to

April 27, 1971, for all such negotiated contracts for which negotiations begin after

that date.

provide safe or healthful employment and places of employment’ it does not qualify as an

occupational safety and health standard as defined in 29 U.S.C. § 652(8) and therefore, could not

have been adopted as an established federal standard. 526 F.2d at 57.

The Court’s syllogism overlooks the essence of the legislative authority delegated to the

Secretary under the Act. Whether by adopting national concensus or established Federal

standards or by promulgating original occupational safety and health standards under 29 U.S.C.

§ 655(b), the Secretary must carry out the mandate to assure a safe and healthful workplace. If,

as the Second Circuit suggests, each and every one of the resultant regulations must conform to

the definition provided in 29 U.S.C. § 652(8), then every corollary provision, such as those found

in 29 C.F.R. § 1910 Subparts A and B, would have to be decreed null and void. None of the

sections in those subparts deal in any way with the specific work practices specified in 29 U.S.C.

§ 652(8).

Obviously, the Secretary’s authority is not so limited. The grant of regulatory authority

over a particular subject inexorably carries with it the authority to devise ancillary regulations to

effectuate that purpose. An effective date provision, such as is contained in § 1926.1050, is as

endemic to the regulation of safety and health as any construction practice requirement. 11 As it

is clearly within the Secretary’s power to promulgate new effective date provisions for emerging

safety and health standards, so to was it within his power to adopt the effective date provisions

for established federal standards when promulgating them as occupational safety and health

standards.

In concluding that 29 C.F.R. § 1926.1050 exclusion did not apply to the adopted

construction standards, the Second Circuit relied on certain effective date provisions contained in

12 13

the preamble to 29 C.F.R. Part 1910 (36 Fed. Reg. 10466 (1971)) and in 29 C.F.R. § 1910.17.

There is absolutely nothing in those provisions that is inconsistent with the adoption of the

section 1926.1050 exemptions. In my opinion, it is clear that the provisions relied on by the

Court establish effective dates only where contracts were not advertised on or before April 24,

1971, or where negotiations had not begun on or before April 27, 1971. There are valid reasons

The Secretary’s authority to adopt national consensus or established federal standards pursuant

to 29 U.S.C. § 655(a) was limited to the period of two years following the effective date of the

Act.

It is somewhat curious that the Court in Underhill would, on the one hand, question the

Secretary’s authority to adopt an effective date provision and then on the other, uphold the

general effective date provisions of § 1910.17.526 F.2d at 58.

See Mourning v. Family Publications Service, Inc., 411 U.S. 356 (1973); 29 U.S.C. §§

651(b)(3) and 655(g).

526 F.2d at 57.

526 F.2d at 58.

for exempting construction contracts advertised or negotiated before those dates rather than

simply prescribing delayed effective dates as was done for other activities.

Compliance with safety and health regulations on construction jobs add considerably to

the already high costs, and the hazards associated therewith are not continuing because they are

eliminated upon completion of the project. The Secretary properly balanced these factors in

determining that the exemption was necessary because employers already committed to

construction contracts on the effective date of the new safety regulations would have had to

absorb the increased costs of compliance which were impossible to anticipate at the time their

bids were submitted. That rationale for the exemption is as sound today as it was in 1971.

The holding of the Circuit Court in Underhill means that even contractors on Federal and

federally assisted projects who were initially exempted from the construction standards in Part

1926 were divested of that exemption by the subsequent promulgation of Part 1910. Such an ex

post facto withdrawal of the exemption is as unjust as it is illogical.

In view of the majority’s reliance on Judge Oringer’s decision, the same is attached

hereto as Appendix A.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 3344

UNDERHILL CONSTRUCTION CORP., FINAL ORDER DATE: August 7, 1974

Individually and DIC CONCRETE,

Individually, Trading as DIC-UNDERHILL, A

JOINT VENTURE

Respondents.

Appearances:

For the Secretary of Labor

Regional Solicitor

U. S. Department of Labor

1515 Broadway, Rm. 3555

New York, New York 10036

Louis D. DiBernardo, Esq.

For the Respondent

William J. Pastore, Esq.

Norton, Sacks, Molineaux & Pastore, Esqs.

230 Park Avenue

New York, New York 10017

DECISION AND ORDER

David G. Oringer, Judge: This is a proceeding under Section 10(c) of the Occupational Safety

and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as ‘The Act’) to review

citations issued by the Secretary of Labor (hereinafter referred to as ‘Complainant’), pursuant to

Section 9(a), and a proposed assessment of penalties thereon issued, pursuant to Section 10(a) of

the Act. The citation issued on or about May 8, 1973 was for a serious violation of that standard

found at 29 C.F.R. 1926.500(d)(1). The citation issued on May 18, 1973, alleges that as a result

of an inspection of the respondent’s work place on May 4, 1973, the said respondent violated in a

non-serious manner, six of the Secretary’s standards duly promulgated pursuant to Section 6 of

the Act. The standards allegedly violated by the respondent, read as follows:

Serious Violation

Item No. 1 29 C.F.R. 1926.500(d)(1) (d) Guarding of open-sided floors, platforms, and

runways. (1) Every open-sided floor or platform

6 feet or more above adjacent floor or ground

level shall be guarded by a standard railing, or

the equivalent, as specified in paragraph (f)(1) 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.

Non-serious violations

Item No. 1 29 C.F.R. 1926.100(a) Head Protection.

(a) Employees working in areas where there is a

possible danger of head injury from impact, or from

falling or flying objects, or from electrical shock and

burns, shall be protected by protective helmets.

Item No. 2 29 C.F.R. 1926.25(a) Housekeeping

(a) 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.

Item No. 3 29 C.F.R. 1926.500(d)(1) See above.

Item No. 4 29 C.F.R. 1926.24 Fire Protection and prevention.

The employer shall be responsible for the

development and maintenance of an effective fire

protection and prevention program at the job site

throughout all phases of the construction, repair,

alteration, or demolition work. The employer shall

ensure the availability of the fire protection and

suppression equipment required by Subpart F of this

part.

Item No. 5 29 C.F.R. 1926.252(a) Disposal of waste materials.

(a) Whenever materials are dropped more than 20

feet to any point lying outside the exterior walls of

the building, an enclosed chute of wood, or

equivalent material, shall be used. For the purpose of

this paragraph, an enclosed chute is a slide, closed in

on all sides, through which material is moved from a

high place to a lower one.

Item No. 6 29 C.F.R. 1926.450(a)(10) Ladders.

(a)(10) Portable ladders in use shall be tied, blocked,

or otherwise secured to prevent their being

displaced.

The serious violation, as alleged by the complainant, is described as follows:

29 C.F.R. 1926.500(d)(1) Guarding of open-sided floors, platforms, and

Page 27543 runways. (d)(1) Failure to provide every open-sided

As adopted by 29 C.F.R. 1910.12 floor or platform 6 ft. or more above adjacent floor or

ground level guarding 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

location.

The non-serious violations, as alleged by the complainant are described as follows:

Item No. 1 29 C.F.R. 1926.100(a) Failure to protect employer working in areas where

page 27512 as adopted there is possible danger of head injury from impact

by 29 C.F.R. 1910.12 or from falling or flying objects by protective

helmets.

Location:

a. Bldg. ‘D’ East Area 12 men 3rd fl.

b. Bldg. ‘D’ West area 6th fl 10 men

c. Yard area 2 men

Item No. 2 29 C.F.R. 1926.25(a) page Failure during the course of construction to clear

27509 as adopted by 29 form & scrap lumber with protruding nails and all

C.F.R. 1910.12 other debris from work areas, passageways, and

stairs, in and around buildings or other structures.

Location:

a. Roof Bldg ‘F’

b. Bulkhead top fl Bldg. ‘F’

c. Yard area of site

Item No. 3 29 C.F.R. 1926.500(d)(1) Failure to provide every open-sided floor or platform

page 27543 as adopted by 6 ft. or more above adjacent floor or ground level

29 C.F.R. 1910.12 guarding by a standard railing or the equivalent as

specified in paragraph (f)(1) 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.

Location:

a. Bldg. ‘F’ Roof top floor

b. Bldg. ‘D’ 3rd fl e. side

Item No. 4 29 C.F.R. 1926.24 page Failure to develop and maintain a effective fire

27509 as adopted by 29 protection and prevention program at the job site

C.F.R. 1910.12 throughout all phases of the construction. The

employer did not ensure the availability of the fire

protection above the 21st floor of Bldg ‘F’ (no

standpipe or other equipment was provided).

Item No. 5 29 C.F.R. 1926.252(a) page Failure to provide an enclosed chute of wood or the

27509 as adopted by 29 equivalent when materials were dropped from the

C.F.R. 1910.12 4th floor to a container lying outside. The exterior of

the building Bldg. ‘D’ east side.

Item No. 6 29 C.F.R. 1926.450(a)(10) Failure to secure a ladder, by being tied or blocked

page 27534 as adopted by or otherwise secured to prevent displacement.

29 C.F.R. 1910.12 Location: Bldg ‘F’ 32nd fl roof to bulkhead.

A Notification of Proposed Penalty was issued to the respondent by the complainant, on

May 18, 1973, proposing penalties of $1,000 for the serious violation; $210 for Item No. 1 of the

non-serious violations; $65 for Item No. 2 of the non-serious violations; $210 for Item No. 3 of

the non-serious violations; $90 for Item No. 4 of the non-serious violations; $160 for Item No. 5

of the non-serious violations; $210 for Item No. 6 of the non-serious violations. Total proposed

penalties for all of the alleged violations described above, amounted in the aggregate, to $1,945.

In a letter dated June 8, 1973, the respondent filed a Notice of Contest with the

complainant, contesting the citation dated May 18, 1973, and the six items thereon, as well as the

proposed penalties with respect to those items. The Notice of Contest is wholly silent as to the

serious citation issued May 8, 1973, and the penalty of $1,000 proposed therefor. The Notice of

Contest was received by the Occupational Safety and Health Review Commission on or about

June 28, 1973, pursuant to section 10(c) of the Act and the case was assigned to the undersigned

on August 22, 1973, for a hearing pursuant to section 12(e) of the Act.

Pursuant to notice, the hearing was held on October 18, 1973, in New York City.

Having heard the testimony and observed the demeanor of the witnesses, and having

considered the same, together with the citations, Notification of Proposed Penalty, Notice of

Contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that

substantial evidence, on the record considered as a whole, supports the following

FINDINGS OF FACT

1. Respondent, Underhill Construction Corporation, is a New York corporation with its

principal office located in Bayside, New York, and the respondent, Dic Concrete Corporation, is

a New York corporation with its principal office located in Elmont, New York. The respondents

traded as Dic Underhill, a joint venture, with its office in Bayside, New York (Tr. p. 5).

2. The respondent regularly uses substantial quantities of cement imported from Norway,

cranes manufactured in Wisconsin, and trucks manufactured in Detroit, Michigan (Tr. pp. 5, 6).

3. In the year 1972 the respondents had a net worth of $2 million and employed a daily

average of more than 1,000 employees (Tr. p. 6).

4. There was proper service of the citations and notification of proposed penalties by the

complainant upon the respondent (Tr. p. 6).

5. The citations were posted at the job site within three days after receipt thereof (Tr. p.

6).

6. The job site in question is located at 25th Street and FDR Drive and is the same job site

that was the subject of a prior citation which was contested and bore the number Docket No.

1307 (Tr. p 6).

7. The respondent entered into a contract for the work done at this job site located at 25th

Street and FDR Drive, New York, New York, prior to April 21, 1971 (Tr. p. 7).

8. Citation No. 1 dated May 8, 1973, which alleged a serious violation of 29 C.F.R.

1926.500(d)(1), was hand-delivered to the respondent on May 8, 1973, and a Notification of

Proposed Penalty was served on May 18, 1973, which proposed to assess a penalty of $1,000 for

that serious violation. The respondent did not contest the serious violation nor the penalty

proposed therefor and it became a Final Order of the Commission by operation of law pursuant

to section 10(a) of the Act, and is not subject to review by any court or agency. (See Citation No.

1 for serious violation dated May 8, 1973, Notification of Proposed Penalty filed May 18, 1973,

Notice of Contest dated June 8, 1973, and section 10(a) of the Act.)

9. From the sixth floor of the building in question at the time of the inspection herein

concerned, some of the employees working on the sixth floor from the ground were not wearing

protective helmets where potential hazards existed (Tr. p. 176–181). The same condition existed

in Building D, in the east erea, the fourth floor, and the yard area (Tr. pp. 55–68).

10. The respondent issued hard hats to its employees (Tr. pp. 179–181).

11. There was scrap and debris including many kinds of wood with protruding nails

scattered on the work site where it constituted a hazard to employees working in the area and

there were respondent’s employees exposed thereto (Tr. pp. 72–81, 181–191).

12. The alleged violation of 29 C.F.R. 1926.500(d)(1) cited in Item No. 3 as a non-

serious violation merged with the serious violation that was issued on May 8, 1973, as a result of

the same inspection. Inasmuch as the aforesaid allegation of violation merged with the original

serious violation of this standard, the penalties proposed for this item as a non-serious violation

must fall.

13. On the day of the inspection herein in question, employees of the respondent working

on the 32nd floor were exposed to fire hazards inasmuch as there was no fire protection on that

floor nor anywhere above the 21st floor of Building No. F (Tr. pp. 103–117, and 171–176).

14. At the work site in question on the day of the inspection herein concerned,

respondent’s employees were exposed to a situation where debris was dumped over the side in

excess of 20 feet below which was a potential hazard to those employees of the respondent

exposed thereto. Employees using the passageway utilized by Buildings C, A and D, were

exposed thereto (Tr. pp. 119–137, 166–171).

15. At the work site in question there were exterior walls under construction, which walls

constituted ‘exterior walls’ within the purview of the standard in question (see exhibits C–1

through 6).

16. On the 32nd floor of the work site in question on the day of the inspection herein

concerned, the respondent’s employees were exposed to hazards of an unsecured ladder (Tr.

137–141, 159–165).

17. The penalty of $1000 proposed for the serious violation of that standard found at 29

C.F.R. 1926.500(d)(1) was affirmed by operation of the law inasmuch as the respondent did not

file a Notice of Contest concerning that ?? or the penalty proposed therefor.

18. Inasmuch as the alleged violation of that standard found at 29 C.F.R. 1926.500(d)(1)

is a non-serious violation, and Item No. 3 of the non-serious violations merged, in my opinion,

with the serious violation of 29 C.F.R. 1926.500(d)(1), the penalty of $210 proposed for the non-

serious violation of that standard is inappropriate and must fall.

19. The penalty proposed for Item 1 of the Citation for Non-serious Violations is

inappropriate in the instant cause and must be modified.

20. The penalty proposed for Item 2 of the Citation for Non-serious Violations was

computed pursuant to section 17(j) of the Act and met all of the criteria therefor and accordingly

is appropriate.

21. The penalty proposed for Item 4 of the Citation for Non-serious Violations was

computed in accordance with section 17(j) of the Act and is appropriate.

22. The penalty proposed for Item 5 of the Citation for Non-serious Violations was

properly computed in accordance with those elements specified in section 17(j) of the Act and

thus is appropriate.

23. The penalty proposed for Item 6 of the Citation for Non-serious Violations is

inappropriate in the instant case and must be modified.

DISCUSSION

This case began with the issuance of the citation by the complainant to the respondent on

May 8, 1973, alleging a serious violation of that standard found at 29 C.F.R. 1926.500(d)(1).

This was hand-delivered to the respondent on May 8, 1973. Subsequent thereto, on May 18,

1973, the complainant issued to the respondent a citation alleging six non-serious violations of

the standards, including, Inter Alia, another violation of 29 C.F.R. 1926.500(d)(1), herein alleged

to be non-serious. As far as can be seen both citations arose out of the same inspection, which

took place apparently between May 4 and May 8, 1973. Thereafter, on or about May 18, 1973,

the respondent was issued a Notification of Proposed Penalty proposing a penalty of $1000 for

the May 8 citation alleging a serious violation of 29 C.F.R. 1926.500(d)(1), and various penalties

aggregating $945 for the six non-serious violations alleged in the citation dated May 18, 1973.

Item No. 3 of the latter citation alleged that the respondent violated 29 C.F.R. 1926.500(d)(1) as

a non-serious violation and a penalty of $210 was proposed for such violation. On June 8, 1973,

a Notice of Contest was filed by the respondent that reads as follows:

‘Gentlemen:

Reference is made to the citation dated May 18, 1973 issued with respect to the

above project consisting of six items and the Notification of Proposed Penalty

with respect to the foregoing.

‘You are hereby notified in behalf of Underhill Construction Corp. and Cic-

Underhill, a Joint Venture that we hereby contest all items of said citation and the

proposed penalties with respect thereto.

Very truly yours,

/s/ Bernard Jereski’

It is patently obvious that this Notice of Contest only put in issue and only contested the

citation issued on May 18, 1973, containing six items and the penalties proposed therefor. No

other Notice of Contest was filed concerning this case and the citation alleging a serious

violation of that standard found at 29 C.F.R. 1926.500(d)(1) became a final order of the

Commission after 15 days had passed, which cannot be opened by any court or agency.

Subsequent thereto the Secretary issued a complaint, again alleging a violation of 29

C.F.R. 1926.500(d)(1) as a serious violation, and then alleged all of the other six non-serious

violations and proposed penalties, including $1000 for the serious violation of 1926.500(d)(1),

despite the fact that this already had become a final order. Thereafter, the respondent put in an

answer denying the violation of 29 C.F.R. 1926.500(d)(1) as a serious violation and the penalty

of $1000 proposed therefor. The case was tried, and this issue was tried. Now it comes before

this tribunal for decision. Both parties have extensively briefed the question concerning the

viability of that standard found at 29 C.F.R. 1926.500(d)(1). It is my opinion that the question of

the violation of that standard insofar as a serious violation is concerned is moot inasmuch as it

was never contested. Whether this was done by inadvertent error or by deliberate act the result is

the same. The Secretary does not have the power to extend the time for a respondent to file a

Notice of Contest nor does this tribunal. Congress stated, in section 10(a) of the Act,

‘If, after an inspection or investigation, the Secretary issues a citation under

section 9(a), he shall, within a reasonable time after the termination of such

inspection or investigation, notify the employer by certified mail of the penalty, if

any, proposed to be assessed under section 17 and that the employer has fifteen

working days within which to notify the Secretary that he wishes to contest the

citation or proposed assessment of penalty. If, within fifteen working days from

the receipt of the notice issued by the Secretary the employer fails to notify the

Secretary that he intends to contest the citation or proposed assessment of penalty,

and no notice is filed by any employee or representative of employees under

subsection (c) within such time, the citation and the assessment, as proposed, shall

be deemed a final order of the Commission and not subject to review by any

Court or agency.’

There is no question that anything not contested and not within the scope of the contest is

deemed uncontested. Respondent specifically related the items that he contested and the

penalties attendant thereto. In my opinion, once jurisdiction lapses and the 15 days are over, and

an item is not contested, there is no way that the Secretary or the Commission may usurp

jurisdiction. Accordingly, the citation for serious violation alleging violation of that standard

found at 29 C.F.R. 1926.500(d)(1) became a final order of the Commission, together with the

penalty of $1000 proposed therefor, by operation of law as soon as 15 days passed after issuance

of the Notification of Proposed Penalty.

The Secretary in Item 3 of the Citation for Non-serious Violations alleged violation of the

same standard in a non-serious manner, resulting from the same inspection. As a matter of

general policy, the Secretary has instructed his representatives that all instances of the same

violations of a single standard which are disclosed during an inspection of a single establishment

shall constitute one alleged violation. (See Compliance Operations Manual, Chapter X, Section

B1A).

The only recognized exception to the establishment of this principle is where in the area

director’s judgment a single citation will not be sufficient to cover a flagrant situation involving

numerous instances of the same violation. (See Compliance Operations Manual, Chapter X,

Section B1B).

In my opinion, the record in this case does not indicate flagrant violations that would

excuse a deviation from the Secretary’s own Compliance Manual. Further, considering the

violation involved herein, the manner it occurred, the penalty that became a final order, and all of

the Res Gestae Circumstances concerning and surrounding this violation, I find that the non-

serious violation of that standard found at 29 C.F.R. 1926.500(d)(1) merged with the serious

violation of 29 C.F.R. 1926.500(d)(1) and as a result the separate allegation of violation must

fall, together with the penalty in the sum of $210 which was proposed therefor.

Insofar as each and every other violation alleged in the citation and complaint, I find that

the Secretary sustained his burden of proof thereof. The respondent produced no witnesses and

did not seriously injure the testimony of the complainant’s compliance officer during cross-

examination.

Insofar as the violation of that standard found at 29 C.F.R. 1926.100(a) is concerned,

respondent argues that the men were kneeling and it was likely that a protective helmet would

fall off the head of the worker unless his chin strap is utilized and that the Secretary’s standards

do not require chin straps attached to helmets. He further argues that there is no evidence that the

use of a chin strap does not create a greater hazard to the wearer than failure to wear such helmet.

In my opinion this argument is not of substance. The complainant proved its prima facie case in

that the respondent’s employees were exposed to hazards by failing to wear helmets. If the

respondent had an affirmative defense, that due to the type of work they were engaged in the

helmet would fall off and the chin straps were necessary which were not called for by the

standard, or argued that the requirement of wearing helmets would be more dangerous than not

wearing them, that would be an affirmative defense to be pleaded and proven, neither of which

was done. I find that the Secretary proved a prima facie case of violation by uncontroverted

evidence and there is no rebuttal whatsoever.

Insofar as the alleged non-serious violation of C.F.R. 1926.25(a) is concerned, the

respondent complains that no pictures were taken of this condition. I find that the compliance

officer’s testimony is sufficient to prove a prima facie case in this regard. It was up to the

respondent to rebut this testimony with contrary testimony if he were able so to do. However,

this does not appear in the record. The compliance officer’s testimony is uncontroverted, and in

my opinion, he stood up well under cross-examination, and I find his testimony credible on the

issues. The respondent further complains that the compliance officer did not give any testimony

as to who caused the condition and to how long it had existed. I find that who caused it is not the

corpus delicti of the violation. The important facet is that the respondent’s employees were

exposed to the hazard. I find sufficient testimony to show exposure and potential exposure to this

hazard.

Insofar as the alleged non-serious violation of 29 C.F.R. 1926.24 is concerned, the

employees of the respondent, at least on the 32nd floor, were exposed to fire and there was not

available in the area of the work site wherein respondent’s employees were working, fire

protection or suppression equipment required by Subpart F. Insofar as this violation is

concerned, the complainant sustained his prima facie case and there is no evidence to the

contrary extant; therefore, the violation is proven.

Insofar as the alleged non-serious violation of that standard found at 29 C.F.R.

1926.252(a) is concerned, this tribunal finds that the Secretary sustained his prima facie case and

there is no evidence to the contrary adduced in the record. In my opinion, the walls of this

building when viewed on the pictures, show that they constitute exterior walls to the extent

required by the standard. I find sufficient employee exposure and potential exposure so as to

constitute a violation herein.

Insofar as the alleged non-serious violation of 29 C.F.R. 1926.450(a)(10) is concerned I

find that the complainant sustained the burden of proof of this violation. The compliance officer

testified on examination and cross-examination that this ladder was not affixed. He testified that

it was not tied or otherwise secured to prevent displacement. On cross-examination when cross-

examined as to whether or not it could be nailed, he stated several times that it was not nailed.

The respondent argues that this knowledge was only gained by observation. The respondent

could have controverted the testimony by producing a witness if it believed to the contrary. This

it did not do. The sole testimony in the record is that of the compliance officer and I find it

credible on this issue, and accordingly, the violation was proven.

Some comment must be made concerning the failure of the men to wearing protective

helmets. Final responsibility for such safety factors remains with the employer and the latter has

a duty to see to it that its employees wear the helmets and to discipline the men for failure so to

do.

Much of the argument in the case is whether or not that standard found at 29 C.F.R.

1926.500(d)(1) is or is not applicable to concrete construction work. In my opinion the standard

is applicable. However, any pronunciation by this tribunal on this issue, in this case, constitutes

OBITER DICTA in view of my rulings concerning the allegations of violation of that standard,

found above. The respondent quotes as precedential on the question of whether or not concrete

construction comes within the purview of this standard, Judge Chalk’s decision in Secretary of

Labor v. Underhill Construction Company, Docket No. 1307, which is still on review. I

respectfully disagree with the opinion of my learned brother in this case. On this point Judge

Chodes’ opinion in the Secretary of Labor v. Underhill Construction Corporation, Docket No.

2081, and Judge Ditore’s decision in Secretary of Labor v. Diesel Construction Co., while not

exactly alike in viewpoint, are more in line with my opinion on this issue. The United States

District Court for the District of Connecticut in the United States of America v. J. M. Rosa

Construction, Inc. also is of the opinion that Judge Ditore’s decision in Secretary of Labor v.

Diesel Construction Co. was precedential. However, for the reasons discussed above, the issue

has not reached me and any pronouncement on this issue by this tribunal in the case at bar is pure

DICTA.

Insofar as the penalties are concerned, the penalty for the alleged serious violation of 29

C.F.R. 1926.500(d)(1) proposed to be assessed in the sum of $1,000 became a Final Order for

reasons previously expressed and, therefore, it is the penalty for that violation. Insofar as the

penalty for proven violation of 29 C.F.R. 1926.100(a) is concerned, I find that the proposed

penalty of $210 should be modified to $150 taking into consideration all of the elements of 17(j)

of the Act. Insofar as the proposed penalty for non-serious violation of that standard 29 C.F.R.

1926.25(a) proposed to be assessed in the sum of $65, I find that to be appropriate and in

accordance with section 17(j) of the Act. Insofar as the penalty is concerned for the alleged

violation of 29 C.F.R. 1926.500(d)(1) alleged as non-serious violation, for reasons previously

stated, that penalty is herewith VACATED. As far as the penalty is concerned for Item No. 4 of

the citation for non-serious violation, to wit, that standard found at 29 C.F.R. 1926.24 is

concerned, the penalty proposed in the sum of $90 is appropriate and in accordance with the

elements mandated by Congress in section 17(j) of the Act. Insofar as the penalty is concerned

for Item 5 of the non-serious violations, to wit, of that standard found at 29 C.F.R. 1926.252(a),

in my opinion the penalty is appropriate, given all of the elements of 17(j) of the Act.

Insofar as the penalty for violation of Item 6 of the citation for non-serious violation, to

wit, of that standard found at 29 C.F.R. 1926.450(a)(10) is concerned, I find it excessive. The

chances of occurrence of an accident appear minimal. Considering all the elements mandated in

section 17(j) of the Act, I find a penalty of $100 appropriate therefor.

Based on all of the foregoing considerations, the Judge makes the following

CONCLUSIONS OF LAW

1) At all the times herein mentioned, this respondent was engaged in a business affecting

commerce, within the meaning of section 3 (5) of the Occupational Safety and Health Act of

1970.

2) The respondent was, on the dates of the inspection in its work place herein concerned,

and at all times mentioned herein, an employer subject to the safety and health regulations

promulgated by the Secretary of Labor and referred to in the citation and complaint herein.

3) The respondent did not contest the allegation of serious violation of that standard

found at 29 C.F.R. 1926.500(d)(1) issued on May 8, 1973, nor the penalty proposed in the sum

of $1,000 therefor, and that citation and Notification of Proposed Penalty became a final order of

the Commission by operation of law.

4) The allegation of violation of that standard found at 29 C.F.R. 1926.500(d)(1), as a

non-serious violation in this cause, merged with the allegation of serious violation and must be

VACATED, as well as the penalty proposed therefor, in the sum of $210.

5) The respondent, on the day of the inspections herein concerned, was in non-serious

violation of those standards found at 29 C.F.R. 1926.100(a); 29 C.F.R. 1926.25(a); 29 C.F.R.

1926.24; and 29 C.F.R. 1926.450(a)(10).

6) The penalty proposed for Item 1 of the citation for non-serious violations, in the

amount of $210, was inappropriate and is herewith modified so as to assess a penalty therefor, in

the sum of $150, in consonance with those elements mandated in section 17(j) of the Act.

7) The penalty proposed for Item 2 of the citation for non-serious violations, to wit, the

alleged violation of 29 C.F.R. 1926.25(a) found proven, in the sum of $65 is herewith

AFFIRMED.

8) The penalty proposed for Item 3 of the citation for non-serious violations must be

VACATED.

9) The penalty proposed for Item 4 of the citation, to wit, the alleged violation of 29

C.F.R. 1926.24, found proven, in the sum of $90, is appropriate and in conformity with the

elements found in section 17(j) of the Act.

10) The penalty proposed for Item 5 of the citation, to wit, is appropriate and in

accordance with section 17(j) of the Act.

11) The penalty proposed for Item 6 of the citation in the sum of $210 is found to be

inappropriate and is herewith modified to the sum of $150.

In view of the foregoing, good cause appearing therefor, it is ORDERED that:

1. Item 1 of the Citation for Serious Violation alleging a violation of 29 C.F.R.

1926.500(d)(1) was affirmed by operation of law and the penalty of $1000 proposed therefor was

similarly AFFIRMED by operation of law.

2. Item 3 of the Citation for Non-serious Violations, alleging a non-serious violation of

29 C.F.R. 1926.500(d)(1) merged with the aforesaid serious violation of 29 C.F.R.

1926.500(d)(1) and the penalty of $210 proposed for the non-serious violation of that standard is

herewith VACATED.

3. Item 1 of the Citation for Non-serious Violations, alleging violation of that standard

found at 29 C.F.R. 1926.100(a) is herewith AFFIRMED, and the proposed penalty in the sum of

$210 is herewith MODIFIED to the sum of $150, and as so modified is herewith ASSESSED.

4. Item 2 of the Citation for Non-serious Violation, alleging a violation of that standard

found at 29 C.F.R. 1926.25(a), is herewith AFFIRMED, and the penalty proposed therefor in the

sum of $65, is herewith similarly AFFIRMED.

5. Item 4 of the Citation for Non-serious Violation, alleging a violation of that standard

found at 29 C.F.R. 1926.24 is herewith AFFIRMED, and the penalty of $90 proposed therefor, is

similarly AFFIRMED.

6. Item 5 of the Citation for Non-serious Violation, alleging a violation of that standard

found 29 C.F.R. 1926.252(a) is herewith AFFIRMED and the penalty in the sum of $160

proposed therefor is similarly AFFIRMED.

7. Item 6 of the Citation for Non-serious Violation, alleging a non-serious violation of

that standard found at 29 C.F.R. 1926.450(a)(10) is herewith AFFIRMED and the penalty

proposed therefor in the sum of $210 is herewith MODIFIED to a penalty of $100, which latter

penalty is herewith ASSESSED.

SO ORDERED

David G. Oringer

Judge, OSAHRC

Dated: July 6, 1974