SECRETARY OF LABOR, Complainant, v. LEE ROY WESTBROOK CONSTRUCTION COMPANY, INC., Respondent. OSHRC Docket No. 85-0601 _DECISION_ Before: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION: The issue in this case is whether Lee Roy Westbrook Construction Company, Inc. ("Westbrook"), a concrete framing subcontractor at a multi-employer construction site, violated 29 C.F.R. § 1926.500(b)(1)[[1/]] by failing to guard or cover a floor opening even though the general contractor at the site had contractual responsibility for eliminating the hazard. We conclude that Westbrook failed to establish the limited multi-employer worksite defense available to some subcontractors who do not create or control hazards to which their employees are exposed. We therefore uphold the decision of Administrative Law Judge E. Carter Botkin that found Westbrook in violation of the standard. Westbrook was working on the construction of an eleven-story office building in Dallas, Texas. Its job was to erect wooden forms to support metal "pan" containers into which concrete would be poured by the general contractor, Connell Construction Company. After the poured concrete had hardened, Westbrook would remove the forms and pans, leaving the concrete in place. On April 17 and 18, 1985, one of the Secretary's compliance officers, Jeffrey C. Rucker, inspected the jobsite. On April 17, Rucker observed unprotected floor openings on the building's seventh floor. Although Westbrook had been at work on the seventh floor erecting formwork in the days prior to the inspection, the compliance officer did not notice any employees on the seventh floor that day. He informed the general contractor's superintendent, however, that the openings should be "taken care of" before anyone was exposed to them. The general contractor had express responsibility under a written contract with Westbrook for providing "all guardrails, ladders and safety facilities to comply with OSHA." On April 18, when Rucker returned to the seventh floor, he observed an unprotected elevator shaft opening and two Westbrook employees, Marco Rodrigues and Fermin Valle, exposed to the fall hazard it presented. The original floor opening had been 12 feet long and eight feet wide, but because wooden planks had been placed across that opening, smaller openings of 36 inches by 26 inches had been created within the larger opening. When the compliance officer observed them, the two Westbrook employees were pulling up 4-inch by 6-inch pieces of lumber ("struts") being fed to them through the floor openings by other workers on the sixth floor.[[2/]] The feet of one of the employees, Rodrigues, straddled two of the planks inside the larger opening; the other employee, Valle, was at the edge of the larger opening. If either employee had fallen through the opening, he could have suffered serious physical injury from a thirteen foot fall to the debris-covered, concrete floor below. The entire floor opening could have been covered by placing 4-inch, by 6-inch beams across the opening, laying heavy-duty plywood on the beams, and nailing the plywood to the beams. The lumber needed to cover the opening was readily available at the jobsite, and while the compliance officer was present at the site of the unprotected seventh floor shaft opening, Westbrook employees began the work of covering it. The job took about 30 minutes to complete. After the inspection, Westbrook was issued a citation by the Secretary alleging that Westbrook had violated section 1926.500(b)(1) by not guarding or covering the seventh floor opening.[[3/]] The Secretary alleged that the violation was serious and proposed a $400 penalty. Commission Judge Botkin affirmed the citation and assessed the proposed penalty. The judge concluded that the Secretary had carried his burden of proving that Westbrook had violated the cited standard and that Westbrook had failed to carry its burden of proving the multi-employer construction site affirmative defense it had raised. _See Anning-Johnson Co._, 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1198, 1975-76 CCH OSHD ¶ 20,690, pp. 24,783-84 (No. 3694, 1976); _Grossman Steel & Aluminum Corp_., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1189-90, 1975-76 CCH OSHD ¶ 20,691, pp. 24,791-92 (No. 12775, 1976). Although Judge Botkin found that Westbrook had established that it did not create the cited hazard, he concluded that Westbrook had failed to make out its affirmative defense because the evidence showed that Westbrook "possessed sufficient control over the violative condition so that it had a realistic means to rectify the condition in the manner contemplated by the [cited] standard." He further found that there was "no degree of expertise. . .necessary to abate the hazard [by placing decking over the floor opening]," that Westbrook's employees "had to possess at least that level of carpentry skill to perform their work" and that Westbrook's employees had in fact "commenced to abate the hazard (by decking) at the time of the inspection." The judge acknowledged that the general contractor had contractual responsibility to abate the hazardous condition, but found that there was nothing in the contract that precluded Westbrook from abating the cited hazard. He also found that there was no evidence Westbrook would have been prevented from abating the hazard by any union jurisdictional factors. On review before us, Westbrook does not dispute the judge's finding that the unguarded floor opening violated the cited standard. Westbrook defends against the violation by arguing that it has proven the multi-employer construction site affirmative defense. In order to establish that defense, Westbrook must prove, by a preponderance of the evidence, that: 1. It did not create the violative condition; and 2. It did not control the violative condition such that it could not realistically have abated the condition in the manner required by the standard; and 3. (a) It made reasonable alternative efforts to protect its employees from the violative condition; or (b) It did not have, and with the exercise of reasonable diligence could not have had, notice that the violative condition was hazardous. _See_ _Anning-Johnson_, 4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp. 24,783-84; _Grossman Steel_, 4 BNA OSHC at 1189-90, 1975-76 CCH OSHD at pp. 24,791-92. The first element of the defense is not in dispute. Judge Botkin found, and the Secretary apparently concedes, that Westbrook did not create the violative condition. The judge further found, however, that Westbrook had failed to prove that it did not control the violative condition. We agree with the judge's reasoning and therefore affirm his holding that Westbrook has failed to establish its affirmative defense. "Control is established when it is shown that an employer possessed the expertise and personnel to abate a hazard." _Union Boiler_ _Co_., 83 OSAHRC 11/C7, 11 BNA OSHC 1241, 1246, 1983-84 CCH OSHD ¶ 26,453 at p. 33,607 (No. 79-232, 1983), _aff'd_ _mem_., 732 F.2d 151 (4th Cir. 1984). As Judge Botkin properly concluded, the task of decking over the floor openings required only basic carpentry skills. That Westbrook's employees possessed those skills is obvious--their principal job assignment was to erect and dismantle wooden formwork. Further, it was Westbrook's own employees, including foreman Johnny Elizondo, who began to cover the floor opening in the presence of the compliance officer. The material used to cover the opening, the 4-inch by 6-inch lumber that Westbrook was using for struts along with a piece of plywood, was readily available at the jobsite and was produced for use in abating the hazard within minutes after the compliance officer observed Westbrook employees Rodrigues and Valle working over the unprotected floor opening. Since it possessed the expertise and personnel to abate the hazard, Westbrook has failed to establish its multi-employer construction site affirmative defense, and the Secretary's citation is affirmed.[[4/]] _See_ _Dun-Par Engineered Form Co_., 86 OSAHRC 40/A8, 12 BNA OSHC 1962, 1967, 1986-87 CCH OSHD ¶ 27,651, p. 36,033-3 (No. 82-928, 1986). This ruling resolves the issues before us, but there is an additional matter that we have decided to address, and that is the failure of the Secretary to cite the general contractor for violating the cited standard. Our cases recognize that the general contractor on a construction site is "well situated to obtain abatement of hazards, either through its own resources or through its supervisory role with respect to other contractors." _Grossman Steel & Aluminum Corp_., 4 BNA OSHC at 1188, 1975-76 CCH OSHD at p. 24,791. In this case, the general contractor, Connell Construction, was expressly bound by contract to "provide and be responsible for all guardrails, ladders and safety facilities to comply with OSHA." Thus, even though the OSHA inspector did not observe Connell Construction's employees exposed to the unguarded floor opening, the Secretary could have cited Connell for the violation. _Gil Haugan_, 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ¶ 24,105 (No. 76-1512, 1979); _Knutson Construction_ _Co_., 76 OSAHRC 131/F3, 4 BNA OSHC 1759, 1976-77 CCH OSHD ¶ 21,185 (No. 765, 1976), _aff'd_, 566 F.2d 596 (8th Cir. 1977). The Secretary's decision to cite Westbrook and not Connell is consistent with OSHA's current official enforcement guidelines for issuing citations on multi-employer worksites.[[5/]] The policy, in circumstances such as those here, essentially requires OSHA's compliance personnel to cite a subcontractor whose employees are exposed to conditions that violate the Secretary's regulations, rather than a general contractor who is responsible for those conditions (by contract or by virtue of its supervisory authority) but whose employees were not seen to be exposed. Only if the subcontractor has a valid defense to the citation does the policy permit the responsible contractor to be cited. We acknowledge that policy-making is the prerogative and the responsibility of the Secretary and that the Commission is an adjudicative rather than a policy-making body. Nevertheless, in this instance, we wish to express our concern with the Secretary's policy decision. We believe that OSHA's stated policy is at times unfair to subcontractors and could diminish employee safety on construction sites by diffusing responsibility for abating hazards, and by fostering disrespect for the law and its enforcement. The policy produces manifest unfairness when it results in a subcontractor, such as Westbrook, being required to discharge functions that are the explicit contractual responsibility of the general contractor.[[6/]] Our decisions do not permit subcontractors to ignore hazards to which their employees are exposed. But our decisions are also premised on the assumption that the primary responsibility for abatement of hazards will fall on the creating and controlling contractors, including in many instances the general contractor. Indeed, in many situations, the most effective way a subcontractor can achieve abatement of a hazard is to complain to the general contractor in the expectation that the general contractor will fulfill its obligations. _E.g., Lewis & Lambert Metal_ _Contractors_, 84 OSAHRC 45/A2, 12 BNA OSHC 1026, 1030, 1984-85 CCH OSHD ¶ 27,073, p. 34,899 (No. 80-5295-S, 1984). In _Lewis & Lambert_, we noted that the potential liability of general contractors "under Commission precedent" provides an incentive for them to respond to subcontractor complaints. However, a policy that permits general contractors to avoid responsibility simply because their own employees are not observed to be exposed to a hazard diminishes this incentive. Also, holding multiple non-creating and non-controlling subcontractors liable for abatement of a violation when an uncited general contractor bears the contractual responsibility would be unduly burdensome and could lead to unnecessary litigation. _Anning-Johnson Co. v. OSHRC_, 516 F.2d 1081, 1089-90 (7th Cir. 1975). We strongly urge the Secretary to reconsider her current policy for issuing citations on multi-employer worksites. Moreover, we must caution the Secretary that if there is no change in her policies the Commission ultimately may have to contemplate modification of the compliance guidelines set forth in _Anning-Johnson_ and _Grossman Steel_. We assess a penalty of $50. Only two employees were shown to be exposed to the hazard, and the exposure was relatively brief. Furthermore, as emphasized above, it was the contractual obligation of general contractor Connell, and not subcontractor Westbrook, to guard or cover the cited openings, and Westbrook's vice-president testified that she had made repeated requests to the general contractor to carry out its obligation.[[7/]] Accordingly, the Secretary's citation alleging that Westbrook committed a serious violation of section 1926.500(b)(1) is affirmed, and a $50 penalty is assessed. FOR THE COMMISSION RAY H. DARLING EXECUTIVE SECRETARY DATED: March 22, 1989 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. LEE ROY WESTBROOK CONSTRUCTION COMPANY, INC., AND ITS SUCCESSORS, Respondent. OSHRC DOCKET NO. 85-0601 _DECISION AND ORDER_ Appearances: Robert A. Fitz, Esq., of Dallas, Texas for the Complainant. John F. McCarthy, Jr., Esq., and Michaela E. Conway, Esq., of Dallas, Texas, for the Respondent. BOTKIN, Judge: This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 _et_ _seq_. ("the Act"), contesting a citation issued by the Complainant, the Secretary of Labor ("the Secretary"), to the Respondent, Lee Roy Westbrook Construction Company, Inc., and Its Successors ("Westbrook"), under authority vested in the Secretary by Section 9(a) of the Act. On April 17 and 18, 1985, an inspection was conducted of a workplace located at 3131 Pearl Street, Dallas, Texas, by Jeffrey C. Rucker ("the CO"), a compliance officer with the Occupational Safety and Health Administration ("OSHA"). At that time, a multi-story office building was in the process of being constructed by Connell Construction Co., Inc. ("Connell"), the general contractor. Westbrook was contractually engaged by Connell as a subcontractor (concrete forming) to provide concrete formwork (furnishing and installing pans) in order that concrete floors could be poured. As a consequence of the inspection, OSHA issued a citation to Westbrook alleging a serious violation of Section 5(a)(2) of the Act for which a penalty of $400.00 was sought. Westbrook timely filed a notice of contest on May 30, 1985, commencing this proceeding under Section 10(c) of the Act. Although simplified proceedings were initially in effect, a motion for the application of conventional rules was later granted. Subsequently, a complaint and answer were filed with the Commission. A hearing was held in this matter on November 5, 1985, in Dallas, Texas. No affected employees or representatives of affected employees participated in the proceeding. Westbrook has submitted proposed findings of fact and conclusions of law while both parties have submitted post-hearing briefs. The matter is now ripe for decision. _ISSUE_ Whether Westbrook was in serious violation of 29 CFR §1926.500(b)(1),[[1]] and, if so, the appropriate penalty therefore. _STIPULATIONS_ The parties stipulated that (i) the correct name of Westbrook is Lee Roy Westbrook Construction Company, Inc. (Tr. 11), (ii) Westbrook was incorporated under the laws of Texas on November 7, 1983, but it did not begin doing business as a corporate entity until January 1984 (Tr. 11-12), (iii) the registered office of Westbrook is located at 2323 North Walton Walker Boulevard, Dallas, Texas (Tr. 12), (iv) Westbrook is an employer engaged in a business which affects commerce (Tr. 4-6, 12), (v) jurisdiction of this proceeding is conferred on the Commission by Section 10(c) of the Act (Tr. 4-6), (vi) Westbrook's total number of employees during the calendar year (ending on December 31, 1984) preceding the inspection varied between 30 and 110 (Tr. 8-10), (vii) Westbrook had gross sales in the amount of $1,000,000 for the calendar year preceding the filing of the citation and complaint in this case (Tr. 15-19), and (viii) the parties also agreed that certain documents could be received into evidence as exhibits.[[2]] _ISSUE_ Whether Westbrook was in serious violation of 29 CFR §1926.500(b)(1), and, if so, the appropriate penalty therefore, if any. _DISCUSSION_ It is well-settled that, in order to establish a _prima_ _facie_ case that an employer has violated Section 5(a)(2) of the Act, the Secretary must show that (i) the cited standard applies to the facts, (ii) there was a failure to comply with the cited standard, (iii) employees had access to the violative condition, and (iv) the cited employer either knew or, with the exercise of reasonable diligence, could have known of the condition. The evidence reveals that the CO[[3]] returned to the jobsite to continue the inspection at approximately 7:30 a.m. on April 18, 1985 (Tr. 76). It is not disputed that, shortly thereafter, he observed three workers on the seventh floor engaged in work activities at the location of a floor opening which was not guarded by a standard railing and toeboards or a cover. Actual measurements of the entire floor opening revealed an overall dimension of 12 x 8 feet. However, inside and slightly below the level of that floor opening were smaller floor openings (three),[[4]] each approximately 3 feet x 26 inches. Workers were engaged in work activities at both the outside perimeter of the entire floor opening and straddling smaller openings inside thereof.[[5]] By measurement, it was 13 feet from the seventh to the sixth floor (Tr. 77-78, 80-84, 87).[[6]] Clearly, the facts in the foregoing paragraph establish that (i) the cited standard is applicable to the facts of this case, and (ii) there was a failure to comply with that standard.[[7]] Respondent does not urge otherwise. However, it does contend that those workers exposed to the hazard were not its employees (Respondent's brief, pages 3, 20-22). I do not agree. Initially, it should be pointed out that Respondent primarily relies on the testimony of Frank G. Elizondo[[8]] ("Elizondo"), its general superintendent, to establish its case on this issue. I did not find his testimony on this issue to be persuasive. I find that other evidence of a convincing nature supports a finding that those three workers (exposed to the hazard of a fall) were Respondent's employees. First, I note that Elizondo was not at the construction site at the time the CO conducted that part of the inspection on April 18, 1985, giving rise to the subject citation (Tr. 214, 222-223). On that date, the CO was accompanied on the inspection by Jerry Don Cardwell ("Cardwell"), who worked as Connell's general foreman on this job (Tr. 76-77, 194-195).[[9]] According to the CO, Cardwell identified the three workers engaged in work activities at the floor opening as Respondent's employees (Tr. 76-77, 120, 125-126).[[10]] In other testimony, the CO stated that (i) on request, two[[11]] of those workers identified themselves by name, Marco Rodrigues[[12]] and Fermin Valle,[[13]] and stated their employer to be the Respondent, and (ii) those two workers wrote their names on the CO's worksheet (Tr. 80-83, 93, 124, Exhibit R-4). Other evidence of record establishes that both Rodrigues and Valle were employed by Respondent on April 17 and 18, 1985 (Exhibits C-1-A through C-1-C).[[14]] Based on the foregoing evidence, I am convinced that these were Respondent's employees; to hold otherwise is tantamount to stating that the totality of this evidence amounts to nothing more than sheer coincidence. I find to the contrary. Moreover, compared to that evidence is Elizondo's testimony that (i) he definitely does not know the individual shown in the foreground of Exhibit C-13,[[15]] and (ii) that individual is not employed by Respondent (Tr. 206-207). In effect, this testimony by Elizondo creates the impression that his memory would permit him to recognize any of Respondent's employees, ranging in total number from 30 to 100, in a period of time over six months earlier (Tr. 216). This should be compared with his other testimony that he is unable to recall how many jobs that he was in charge of supervising (as job superintendent) at the very same time (Tr. 216-217). Very simply, I do not find such testimony credible. There is no plausible basis for such an inconsistency in memory. In fact, it has the related effect of raising doubts about other aspects of his testimony. Additionally, the CO's testimony regarding his conversation with Respondent's foreman and Johnny Elizondo ("J. Elizondo") at the time of the inspection on April 18th went completely unchallenged (Tr. 120-125).[[16]] I also observe that Elizondo testified that the subject floor openings, shown in specified photographic exhibits, were covered up approximately 30 minutes after the CO took those photographs. He then stated that Connell's employees did that work. After admitting that he was not present when the openings were covered, he was asked how he learned who had done that work. He did not answer that question; significantly, his answer was completely unresponsive thereto (Tr. 213-214). Another situation which has a bearing on the credibility issue needs to be addressed at least in a general fashion. The CO's testimony indicates that (i) the only subcontractor who did not appear at the opening conference on April 17th was Respondent, (ii) he was told by W. J. Slovak[[17]] ("Slovak"), Connell's job superintendent, that Respondent's employees left the site because OSHA arrived, and (iii) during his telephone conversation with Elizondo on April 18th, Elizondo stated that he had Respondent's employees pulled off the job because of the unguarded floor openings (Tr. 45, 95-98, 100, 129-132). Also, see Exhibit R-4. The evidence shows that Slovak delegated to Cardwell the task of notifying subcontractor foremen that their presence was desired by the CO for the opening conference (Tr. 170-171).[[18]] At the hearing, six months later, Cardwell could not recall if he talked with or contacted Respondent's representatives on the date in question (April 17th) (Tr. 194-196). I can only conclude that his memory should have been fresher at the time of the investigation. In his testimony, Elizondo denied that Respondent pulls employees off of jobs when OSHA arrives to inspect, stating that, at the time in question, the employees went to another jobsite to unload some tables and bring them to the job (Tr. 215-216). Under close scrutiny, this collective testimony simply does not support Respondent's version of the events. In order to credit Respondent's version, one must conclude that (again), by coincidence, Respondent's employees were called away from the jobsite at the same time Cardwell was informing subcontractors about the opening conference. Moreover, what could motivate the CO to record in his report that Elizondo told him they (employees) were removed from the job because of the unguarded floor openings (unless it was said).[[19]] He could not have possibly foreseen Elizondo's testimony; so, it was not an attempt to cause Elizondo to make inconsistent statements. At this time, I should remark that I found the CO's testimony to be direct and responsive. He made a favorable impression as a witness. Finally, there are two other areas to be discussed which relate to a finding on employee exposure. Elizondo testified that (i) material (lumber) is stacked on the sides and moved up (to another floor) in large quantities by the use of a crane,[[20]] and (ii) Respondent does not customarily raise such material (4x6's) on an individual basis through floor openings such as depicted in the photographic evidence (Tr. 210-211). Slovak agreed that, in most cases, such material is moved from floor-to-floor by using a crane and slings; however, he stated that, in some cases, Respondent's crews move them through the floor (Tr. 181, 189). He was not asked why or under what circumstances this work would be performed manually. Obviously, it might be done when time is of the essence[[21]] and the crane is not immediately available. It only makes good sense that this type of thing takes place on an occasional basis. Otherwise, a complete loss of man-hours could result. The other area remaining to be discussed involves the subject of hard hats. A hard hat was brought to the hearing by Elizondo. He identified it as an example of hard hats furnished to all employees by Respondent, including its employees at the subject jobsite.[[22]] He testified that those workers shown in Exhibits C-11, C-12 and C-13 are not wearing one of Respondent's safety hats (Tr. 207-209, 217). It goes without question that the red or orange-colored one is not the same (See Exhibit C-11.). While the other two present a closer question, I do not believe they are the same as the one brought to the hearing (Compare Exhibits C-11 through C-13 with C-16 through C-19.). The insignia on the front of one of those hats, while depicted at an angle, does not appear to be rectangular in shape (See Exhibit C-13.). Attempting to ascertain why the hard hats are not the same, would simply lead to speculation. Suffice it to state that, in this particular case, this evidence is not of sufficient strength to overcome the credibility problems presented by other aspects of Elizondo's testimony. I also find that proof of the requisite knowledge has been established by the evidence. First, I note that the floor opening was easily visible. Actual knowledge is not required if the violative condition is "readily discoverable by sight or sound." _Chicago & North_ _Western Transportation Co_., 77 OSAHRC 30/E4, 5 BNA OSHC 1121, 1977-78 CCH OSHD ¶ 21,608 (No. 13071, 1977). The CO'S testimony discloses that (i) Respondent's foreman was working on the 7th floor, and (ii) he arrived very shortly after his presence was requested (Tr. 120-122, 164).[[23]] The circumstances indicate that the foreman either knew or, with the exercise of reasonable diligence, could have known about the floor opening and employee exposure to the fall hazard. _See The Mountain_ _States Telephone and Telegraph Company_, 623 F.2d 155 (10th Cir. 1980). In order to establish that a violation is of a serious character under the Act, the Secretary must establish that there is a substantial probability that death or serious physical harm could result from the violation. I can not find any basis for a meaningful dispute with the CO's testimony and assessment of this situation (Tr. 87-90, 151-152, 156-158, Exhibit R-4). I find that the violative condition was serious within the meaning of Section 17(k) of the Act and Commission precedent thereunder. Respondent has also raised the affirmative defense that, as a sub-contractor working at a multi-employer construction site, it neither created nor controlled the hazardous condition and it took reasonable efforts under the circumstances to protect its employees from the hazardous condition (Respondent's Answer, Respondent's Brief at pages 3 and 23-33).[[24]] I find that Respondent did not create the hazardous condition on which the citation was based. There can be no genuine disagreement on this. As Respondent points out, the CO's testimony is in accord therewith (Respondent's Brief, page 26, Tr. 111). I also find that Connell had contractual responsibility for abatement of the hazardous condition.[[25]] Very briefly, a close study of the language contained in the contract supports such a finding (Exhibit C-3).[[26]] The Contract, as integrated, provides that the general contractor, Connell, has the responsibility for providing guardrails at the worksite which will comply with the requirements of OSHA. Surely, this covered the instant situation. Indeed, Slovak did not disagree with that in general. However, he testified that it was Respondent's responsibility to guard floor openings (by decking or guardrails) on the floors on which it was performing concrete form work (putting up struts, doing pan work, wrecking out). In substance, he said that it was totally impractical to install guardrails around those areas (floor openings) when Respondent is doing that work. It simply does not give Respondent's workers sufficient space to perform their work (Tr. 173-178, 181, 184-185, 187-189, 191). The overall gist of Slovak's testimony is that Connell was responsible for guarding floor openings unless Respondent's work efforts prevented it. According to the CO, this is essentially what Slovak told him during the inspection (Tr. 104-106, 111-113, 115). The CO further testified that Slovak represented to him that Respondent's responsibilities, as stated, arose out of the requirements of the Contract and other agreements (Tr. 105-107). Yet, at the hearing, Slovak admitted that there had never been an agreement with the Respondent that it would be responsible for guarding floor openings on the floors where it was working (Tr. 178). Moreover, he also admitted that it was possible to cover the subject floor openings (by decking, (Tr. 191).[[27]] Based on the total evidence, I find that Connell had the responsibility to abate the hazardous condition. It remains to be resolved whether Respondent possessed sufficient control over the violative condition so that it had a realistic means to rectify the condition in the manner contemplated by the standard. I believe that it did. Despite Connell having contractual responsibility for the hazardous condition, I find nothing in the Contract which would preclude the Respondent from abating the hazard (providing that it otherwise has the capacity to do so).[[28]] According to the CO, it is not unusual for such floor openings to be guarded (i) by laying wooden beams across the openings (spaced every two feet), (ii) laying heavy-duty plywood on top of the beams, and (iii) nailing the plywood onto the beams (Tr. 90-92). This uncontroverted testimony appears logical. I find no reason to doubt it. In effect, this would meet the requirement of a floor cover by decking over the openings.[[29]] There is absolutely no evidence in this case that Respondent would have been prevented from abating the hazard due to union jurisdictional factors. Moreover, the task of decking over the floor openings would require only basic or general carpentry skills. Certainly, no degree of expertise was necessary to abate the hazard in that manner. Respondent's employees had to possess at least that level of carpentry skill to perform their work (building forms, shoring, etc.). In fact, Respondent's workers, under the direction of J. Elizondo, commenced to abate the hazard (by decking) at the time of the inspection on April 18, 1985 (Tr. 124-125, 147-150).[[30]] While the CO did not watch the entire abatement process, he estimated that it would not take longer than 20 minutes to accomplish (Tr. 92-93, 147-149). Consequently, it is obvious that, had it chosen to do so, Respondent could have met the terms of the standard and abated the hazard with a minimum of both time and effort.[[31]] I so find. The foregoing finding eliminates any (legal) necessity for going through the decisional process to determine whether Respondent failed to take reasonable alternative measures to protect its employees.[[32]] In light of the record and the statutory penalty criteria set forth in §17(j) of the Act, I conclude that a total penalty of $400.00 is both reasonable and appropriate. _FINDINGS OF FACT_ All findings of fact relevant and necessary to a determination of the contested issues have been found specially and appear above. _See_ Rule 52(a) of the Federal Rules of Civil Procedure. Proposed findings of fact or conclusions of law that are inconsistent with this decision are DENIED. _CONCLUSIONS OF LAW_ 1. At all times material hereto, Respondent was an employer within the meaning of Section 3(5) of the Act, engaged in a business affecting commerce, and having employees. 2. The Commission has jurisdiction over the parties and subject matter of the proceeding. 3. Respondent was in serious violation of 29 CFR 1926.500(b)(1). _ORDER_ Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED that: 1. Item 1 of serious citation 1, alleging a serious violation of 29 CFR 1926.500(b)(1), is AFFIRMED, and a civil penalty of $400.00 is ASSESSED. E. CARTER BOTKIN Administrative Law Judge Date: August 8, 1986 _APPENDIX_ _Citation_ 1[[1]] 29 CFR §1926.500(b)(1): Floor opening(s) were not guarded by standard railings and toeboards or covers as specified in paragraph (f) of this section: (a) Stairwell floor opening on 7th floor measuring an overall dimension of 12' x 8' was not effectively guarded or covered as specified in the OSHA standards. Included within the main opening were three individual openings measuring 3' x 26", located between four sets of 4" x 6" wood braces placed partially over the main opening. Employee(s) standing over the openings, picking up 4" x 6" lumber handed up from floor below were exposed to serious falling hazard to debris covered concrete floor 13' below. Located on southeast side of building, 3131 Pearl Street, Dallas, Texas. _Standard_ 1-29 CFR §1926.500(b)(1) (b) _Guarding of floor openings and floor holes_. (1) Floor openings shall be guarded by a standard railing and toeboards, or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways. ------------------------------------------------------------------------ FOOTNOTES: [[1/]] Section 1926.500(b)(1) provides: § 1926.500 _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, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways. [[2/]] The company did not need to leave the opening uncovered in order to move the struts from the sixth to the seventh floor. Westbrook normally moved its materials from one floor to another by crane. [[3/]] General contractor Connell Construction was not similarly cited, apparently because the compliance officer did not see any employees of the general contractor exposed to the hazard and because he had been told by the general contractor's superintendent on April 17 that the general contractor did not then have any of its employees working on the seventh floor. [[4/]] Because we reject the defense on the ground that Westbrook had control over the cited hazard and therefore could and should have complied with the standard's literal requirements, we need not determine whether Westbrook took reasonable alternative measures to protect its employees. [[5/]] OSHA Field Operations Manual, Ch. V, Sec. F, reprinted in BNA Occ. Saf. & Hlth Rptr Reference File, pp. 77:2912-13, CCH Emp. Saf. & Hlth Guide, Vol. 3, ¶¶ 7968.245, 7968.250. [[6/]] In the case before us, the subcontractor has been cited and the general contractor, who bears contractual responsibility, has "gotten off scot free." This has occurred in spite of the fact that testimony reveals that Westbrook had repeatedly requested the general contractor to carry out its obligation. In our opinion, enforcement decisions such as this discourage compliance by the contractor who may be, in many cases, the party best able to expeditiously abate the hazard. [[7/]] Unfortunately, her requests apparently had little effect in improving the safety of the workplace. However, this does not detract from Westbrook's good faith efforts to attain safe working conditions. [[1]] The text of the citation and the text of the standard are appended to this decision. [[2]] Those exhibits were introduced by the Secretary. They were identified as C-1-A through C-1-C, C-2-A through C-2-G, and C-3 (Tr. 12-14, 20-24). [[3]] The CO's qualifications can be found in the transcript at pages 33-37. [[4]] These smaller openings can be seen in Exhibits C-12, C-13 and C-14. [[5]] Illustration of the foregoing can be seen in Exhibits C-11, C-12, and C-13. [[6]] Exhibit C-14 is a photograph looking through the floor opening on the seventh floor down to the sixth floor. On the sixth floor, it shows, among other things, large and small boards, a portion of a steel pan and other debris. There were loose nails on the boards on the seventh floor (where workers stood) and there was a small crack in one board (Tr. 85-86, 92). [[7]] In fact, Rosalie Westbrook Davis ("Davis"), vice-president of Respondent, admitted that photographic evidence of the work situation revealed a hazard (Tr. 235-236). Her work background and job-related responsibilities are set forth in the transcript at pages 224-225, 238-239 and 245-246. [[8]] His qualifications can be found in the transcript at pages 203-204 and 215. Among other duties, he is charged with responsibility for safety by the Respondent. [[9]] Cardwell's work background can be found at pages 194-195 and 201-202 of the transcript. [[10]] Although this testimony amounted to hearsay, it was not objected to by Respondent at the hearing. In fact, Respondent had it repeated during its cross-examination of the CO (Tr. 125-126). Moreover, Cardwell so testified at the hearing (Tr. 196-197). [[11]] The CO did not talk with or identify the worker in the red or orange hard hat (Tr. 81, 128 and Exhibit C-11). [[12]] That individual was identified in the photographic exhibits as wearing a blue and white shirt and a hard hat (Tr. 80-82, Exhibits C-11, C-12 and C-13). [[13]] Although his face is hidden from view, this individual can be seen in the photographs marked Exhibits C-12 and C-13 (Tr. 82-84). [[14]] In its response to the Secretary's request for admissions and his motion to deem admitted, the Respondent stated that its payroll records do not reflect a specific job site worked by an individual employee. It further stated that its supervisory employees could not state, with specificity, who worked on their respective crews on the date in question (Exhibit C-1-A through C-1-C). Therefore, in effect, Respondent asserted that it was unaware of where (job site) Rodrigues and Valle were working on the subject dates. [[15]] This is the individual previously identified as Marco Rodrigues (See footnote 12.). This is the only worker whose face is shown in the photographic evidence (See Exhibits C-11, C-12 and C-13.). Elizondo pointed out that the other worker's face can not be seen (Tr. 212-213, Exhibit C-13). [[16]] Respondent admitted that the Elizondo's (Johnny and Frank) are brothers (Tr. 129). It had previously admitted that J. Elizondo was one of the employees on the date in question (Exhibits C-1-A through C-1-C). Apparently, the foreman was quite close to the area since he appeared in a very short time after his presence was requested. Since his English was poor, he used J. Elizondo for purposes of dialogue with the CO. Among other things, J. Elizondo stated that these were Respondent's employees and agreed that they were exposed to a fall hazard through the floor opening (Tr. 120-125, 164, 258). At the end of the basic investigation both the CO and J. Elizondo spoke on the telephone to Elizondo (Tr. 129-132). Also, see Exhibits R-4. [[17]] Slovak's qualifications and work background can be found in the transcript at pages 169-170. [[18]] It would appear likely that Slovak received his information on this from Cardwell. [[19]] In some situations, that might be a satisfactory explanation. [[20]] The use of a crane is worked out with Slovak (Tr. 210). [[21]] In this case, a reasonable inference from the evidence indicates that Respondent's workers had lost a day of work from this project on April 17th. [[22]] Photographs were substituted in the evidence for the actual hard hat (See Exhibits C-16 through C-19.). The hard hat was white. It has a Texas flag on the front, having rectangular dimensions of approximately 2x4 inches, with "Lee Roy Westbrook Construction Company" printed in blue lettering thereon. The rear of the hard hat has an American flag depicted thereon. It has approximately the same dimensions (Tr. 207-209). [[23]] Additionally, Rodrigues told the CO that the foreman was aware of this situation (Exhibit R-4, pages 1 and 2). While ordinarily an issue might be raised as to whether this type of evidence is admissible, Respondent introduced it into evidence (Tr. 94, 151). [[24]] Respondent has cited the Seventh Circuit's decision in _Anning-Johnson Co. v. OSHRC_, 516 F.2d 1081 (7th Cir. 1975). The Court limited the application of its decision in that case to non-serious violations. However, Respondent's principal reliance is centered on two landmark decisions issued by the Commission, _Anning-Johnson Co_., ("Anning-Johnson") 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶ 20,690 (No. 3694 & 4409, 1976) and _Grossman Steel & Aluminum Corp_. ("Grossman"), 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ¶ 20,691(No.12775, 1976), together with subsequent Commission decisions bearing on the issues raised therein. [[25]] The Secretary has not even bothered to argue this point in his Memorandum. [[26]] The contract is composed of Respondent's two-page bid entitled "Proposal" and the bilateral agreement between Connell and Respondent entitled "SUBCONTRACT AGREEMENT" ("the Contract"). By virtue of a provision of the Contract, the Proposal became merged into the Contract. Among other things, the Contract provides that ". . .The attached proposal shall become a part of this contact and if any provisions of the contracts are in conflict this proposal shall supercede and shall be binding. . . ." I note that almost identical language was set forth in the Proposal. Surely, the parties intended for the provisions of the Proposal to govern in case of a conflict or they would have used some other language than "this proposal." A contract itself would hardly be referred to as a proposal. [[27]] Surely, the Proposal language of "safety facilities" is broad enough to include covers over floor openings by decking. Regardless thereof, the foregoing admission reveals that Connell could have guarded this particular violative condition with a cover at that time. Based on Slovak's own testimony, Connell's obligation to guard had arisen. Thus, this finding need not rest on testimony by Davis (of a hearsay nature) regarding conversations with Bob Saunders, the project manager and Slovak's supervisor (Tr. 230-235). [[28]] In fact, paragraph 27 of the Contract contains the contractual machinery for resolving disputes between the Respondent and Connell. Significantly, in those matters that the parties cannot resolve amicably, this paragraph provides that the Respondent shall follow Connell's written instructions and later pursue its legal remedies. Therefore, this Contract contemplates that Respondent may have to perform certain work for which Connell bears ultimate responsibility. [[29]] Incidentally, I reject Respondent's contention that abatement was taking place when the photographs were taken on April 18th (Respondent's Brief, pages 11-12 and 29-30). Elizondo's testimony is not of bedrock quality. Moreover, he was not there. Initially, he disclaims any knowledge and, thereafter, his testimony has, at best, a speculative quality (Tr. 210). Next, Respondent has misread the transcript. The CO's statement resides on pages 154-156 of the transcript. At the cited source (page 125), he was reporting on comments by J. Elizondo and Cardwell. Those attributed to J. Elizondo are not helpful to Respondent; but those attributed to Cardwell could be so interpreted. However, I find Cardwell's actual testimony to be more persuasive (Tr. 196-197). Apparently, he was referring to shoring as a support for the next floor (which the CO has referred to as "partial decking") (Tr. 154-156). At any rate, I find the credible evidence does not support Respondent's contention. [[30]] Again, Respondent has misread the record (Respondent's Brief, pages 11-12). [[31]] There is not one scintilla of evidence in this record that this would have displeased the general contractor. [[32]] However, at least, one comment should be made to illustrate yet another credibility problem related to Respondent's case. While Davis testified at length about the number of times that she had complained to Connell officials (Slovak and Saunders) in regard to guarding floor openings and the perimeter (much of this arose out of her testimony on the responsibility issue), she also stated that this got the desired results (at times, after several requests) within three or four days (Tr. 230-235, 250). This only needs to be compared with the established fact that not one of these floor openings (on any floor) was guarded when this inspection commenced on April 17, 1985. Testimony regarding safety instructions (avoid openings until guarded - Elizondo; and avoid openings unless using safety equipment - Davis) has been fully considered (Tr. 212; 248). The fact is that none of the foregoing was actually being done. At best, this can be interpreted to be a result of a lack of effective communication of safety rules and/or a lack of enforcement of said rules. [[1]] The Secretary required abatement of the alleged violation by May 21, 1985, and a penalty of $400.00 was proposed.