“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 1858 & 1860 ? A. MUNDER & SON, INC., AND ROBERT CATINO, INC. \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BARNAKO, Chairman:The issue in these consolidated cases iswhether the employees of Respondents A. Munder and Son, Inc. (Munder) andRobert Catino, Inc. (Catino) were exposed to the hazards presented byconditions which failed to conform to the requirements of Complainant?s (Labor)occupational safety and health standards. The facts are these.Munder and Catino were subcontractors on abuilding construction site in New York City. When this site was inspected byLabor, Munder, a sheet metal contractor, was engaged in installing steeldecking onto the building frame. Its employees on the 10th floor were engagedin welding operations; on the 11th through 13th floors they were sorting andspreading loose decking. They were not observed working any closer than 10 feetfrom the edge of the building but would have to move to the perimeter tocomplete their work. The decking on the ninth floor had been completed but theemployees were on that floor cleaning it and moving their welding equipment tothe upper floors through a stairway located approximately 100 feet from thenearest building perimeter. There is no evidence that the work being performedby Munder?s employees on this floor would bring them any closer to the edge.The 9th and 10th floors were equipped with ?-inch cables as perimeterprotection but the 11th through 13th floors were completely unguarded.In going to their work floors, Munder?semployees would climb stairways located approximately 30 feet from a 10-by10-foot opening in which the scaffolding for a concrete hoist was beinginstalled by another subcontractor. This opening was neither guarded norcovered in any way. While climbing the stairs the employees would at times resteither on the stairs or on the fifth, sixth, seventh, or eighth floors but atno times were observed resting closer than 20 feet from the opening.Catino was a carpentry subcontractorresponsible for guarding hazardous areas, including the installation ofguardrails around elevator shaft openings and handrails on the stairways,except that the general contractor was responsible for guarding the hoistopening. On the fourth floor Catino?s employees were prefabricating barricadesat a bench located about 50 feet from the hoist opening. They would theninstall the barricades at an elevator shaft opening 20 feet from the hoistopening. This work did not require them to come any closer to the hoistopening, and they were experienced employees aware of its location. Theinspector conceded that they would not be working in or around the hoistopening.Lastly, two compressed gas cylinders, oneoxygen and one acetylene, were lying unsecured on their sides and without valveprotection caps. Labor?s inspector testified that if a valve is broken oropened as a result of these conditions the cylinder could explode or become a?torpedo? through the building. These cylinders were located near the mainentrance to the building and employees of both Munder and Catino were observedpassing within 10 feet of them. The cylinders were not the property of eitherMunder or Catino and their employees did not handle the cylinders; theconditions were corrected during the inspection by the general contractor.On these facts Munder and Catino werecited for alleged violations of the Occupational Safety and Health Act of 1970[1] for failing to comply with29 C.F.R. ? 1926.500(b)(1)[2] as to the hoist opening onthe fourth floor (Catino) and on the fifth through eighth floors (Munder) and29 C.F.R. ? 1926.350(a)(1) and (a)(9) as to the gas cylinders.[3] Munder was also cited forfailing to comply with 29 C.F.R. ? 1926.750(b)(1)(iii) as to the 10th through13th floors and 29 C.F.R. ?\u00a01926.500(d)(1) as to the ninth floor.[4]There is no dispute that the conditionsexisting failed to comply with the cited standards and Administrative Law JudgeJames D. Burroughs in his decision so concluded. He further concluded thatemployees of both Munder and Catino were exposed to the hazards created by thegas cylinders, and he recommended affirmance of the citations alleging thoseviolations. As to the shaft opening and unguarded perimeter allegations he heldthat Labor had failed to prove employee exposure, and he would vacate. For thereasons given below we adopt his decision with the exception of the ?1926.750(b)(1)(iii) charge.Subsequent to Judge Burrough?s decision hereinwe held that our rule of employee exposure would be a practical rule of accessbased on reasonable predictability. Gilles & Cotting, Inc., No. 504,BNA 3 OSHC 2002, CCH OSHD para. 20,448 (OSHRC, Feb. 20, 1976). Labor must provethat employees have been, are, or will be in zones of danger during eithertheir assigned working duties, their personal comfort activities while on thejobsite, or their movement along normal routes of ingress to and egress fromtheir assigned workplaces. And the zone or zones of danger will be definedaccording to the type of hazards presented in each case. That is, Labor mustshow the nature of the hazard and the areas on the jobsite where employeeswould be required or likely to go and further show a coincidence or overlappingof the two.In this case there are two different kindsof hazards. The unguarded or inadequately guarded floor perimeters and hoistopening constitute static hazards such that for an employee to fall he wouldhave to come to the edge of the floor or opening. On the other hand, the gascylinders present a dynamic hazard capable of coming to the employee because acylinder could explode or move through the work area of its own volition. Thezone of danger would obviously comprise the area through which a cylinder couldreasonably be expected to cause injury.The facts show that employees of bothMunder and Catino came in close proximity to the gas cylinders during thenormal course of their activities on the site. It is reasonably predictablethat the dynamic hazard presented by either an explosion or projectile wouldpenetrate their areas of ingress and egress and Judge Burroughs properly soheld. Bechtel Power Corporation, No. 5064, BNA 4 OSHC, 1005, CCH OSHDpara. 20,503 (OSHRC, Mar. 11, 1976); The Budd Company, 7 OSAHRC 160, 164n.7, BNA 1 OSHC 1548, 1551 n.7, CCH OSHD para. 17,387 at 21,915 n.7 (1974), aff?d,513 F.2d 201 (3d Cir. 1975). Since Labor has here shown coincidence of the zoneof danger and the employees? work area, we will affirm the citations allegingviolation of 29 C.F.R. ? 1926.350(a)(1) and (a)(9).We reach a similar conclusion with respectto Munder?s employees on the 10th through 13th floors. There the employees wereengaged in securing the decking, were 10 feet from the unguarded perimeters,and would have to move to the perimeters to complete their work. In thesecircumstances it is reasonable to define the employees? work area to includethe unguarded perimeters and the falling hazard thereby presented. See UnderhillConstruction Corporation, No. 2516, BNA 4 OSHC 1146, CCH OSHD para. 20,631(OSHRC, April 19, 1976). Since again the work area coincides with the hazard,we find Munder in violation of 29 C.F.R. ? 1926.750(b)(1) (iii).[5]The situation is different as to the lowerfloors. The work being performed by Munder?s employees on the ninth floorconsisted of cleaning and moving equipment through a stairway located no closerthan 100 feet from the inadequately guarded perimeter, and Labor presented noevidence that the employees in the course of their work would come any closerto the edge. Similarly, Munder?s employees were using stairways no less than 30feet from the hoist opening; the best the inspector could say is that theymight wander to the opening. In both instances Labor?s proofs failed to showcorrespondence of a hazard with work areas. Lastly, Catino?s employees werebarricading an elevator shaft 20 feet from the hoist opening. Labor did notshow that their work area included the hoist opening, and the inspectorconceded that it did not. Therefore we will vacate the citations alleging the ?1926.500(b)(1) and (d)(1) violations.We turn now to assessment of appropriatepenalties. Judge Burroughs would assess no penalties for the gas cylinderviolations, and we adopt his decision for the reasons he assigns.Munder?s violation of ?1926.750(b)(1)(iii) on the 10th floor consists of using ?-inch rather than?-inch wire rope as perimeter guarding. Moreover, on this floor weldingoperations were in progress whereas on the higher floors decking was stillbeing sorted and spread. It may well be that similar ?-inch wire rope waseventually to have been installed on the 11th through 13th floors as well.[6] In this regard, we notethat Labor considered Munder?s safety program to be very good and its attitudecooperative. We conclude, as did Labor, that Munder has acted in good faith inthis matter. Lastly, the parties stipulated that Munder is of small sizerelative to other sheet metal contractors in the New York City area, and whileit had previously been inspected, the record does not show any prior violationsof the Act. On balance, we conclude that no penalty is appropriate for thisviolation.Accordingly, in Docket No. 1858, we affirmthe citations alleging violations of 29 C.F.R. ?? 1926.350(a)(1),1926.350(a)(9), and 1926.750(b)(1)(iii), unless, within ten days of the receiptof this decision, Respondent Munder requests an opportunity to presentadditional evidence regarding the defense discussed in footnote 5. In DocketNo. 1860, the citations for violation of 29 C.F.R. ?? 1926.350(a)(1) and1926.350(a)(9) are affirmed, unless within ten days of the receipt of thisdecision, Respondent Catino requests a similar opportunity. All other citationsare vacated, and no penalties are assessed. It is so ORDERED.?FOR THECOMMISSION:William S. McLaughlinExecutive SecretaryDATE: AUG 17, 1976?CLEARY, Commissioner, CONCURRING:I concur in the disposition of the itemsat issue in these consolidated cases. I do not, however, adopt the method bywhich the Chairman determines whether employees were exposed to hazardousconditions.??????????? In myconcurring opinion in Gilles & Cotting, Inc., 3 BNA OSHC 2002,1975-76 CCH OSHD para. 20,448 (No. 504, February 20, 1976), I stated that:There is nothing talismanic about . . .the term ?zone of danger? as used by the lead opinion. The test that is reallyapplied may be more precisely stated in terms of the risks to employees thatmay be reasonably anticipated when a standard is breached (footnote omitted).\u00a0Thus, I disassociate myself from thoseportions of the lead opinion wherein my colleague mechanically applies a ?zoneof danger? test to determine whether there was employee exposure to the citednoncomplying conditions.In addition, I disagree with the Chairmaninsofar as he would further complicate any test of employee exposure byintroducing the concept of ?static? or ?dynamic? hazards. This conceptunnecessarily introduces analytical complications into an already overly rigid?zone of danger? approach. In examining questions of employee exposure tononcomplying conditions, it is enough that we identify the nature of the hazardagainst which a standard is directed and then consider the ?risks to employeesthat may be reasonably anticipated when . . . [the] standard is breached.? Gilles& Cotting, Inc., supra (concurring opinion). I find this flexibleapproach more practicable.Although I disagree with the Chairman?sapproach, I nevertheless concur in his findings regarding employee exposure tothe noncomplying conditions at issue in these cases.?MORAN, Commissioner, Concurring in Part, Dissenting inPart:All citations should be vacated in thiscase because the evidence fails to establish that respondents were responsiblefor the alleged violative conditions or that their employees were actuallyexposed thereto. Consequently, I agree that the ? 1926.500(b)(1) and (d)(1)charges against Munder and the ? 1926.500(b)(1) charges against Catino must bevacated because of complainant?s failure to establish either actual orpotential employee exposure. The reasons why the remaining charges should alsobe vacated was expressed in my dissenting opinion in Secretary v. Gilles& Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976. Brieflystated, these charges cannot be affirmed because the complainant must proveactual exposure of an employer?s employees to the alleged hazardous conditionsin order to establish a violation of the Act.The majority?s reversal of the Judge?svacation of the ? 1926.750(b)(1)(iii) charge against Munder is improper becausecomplainant failed to prove actual exposure of Munder?s employees to thealleged hazard.As I predicted in the Gilles &Cotting case, ?the nebulousness of the [Barnako-Cleary access rule] willresult in undesirable imprecision in applying it.? The validity of thatprediction is shown in this case in my colleagues? inability to agree on whatthe rule means. Furthermore, the evidence is insufficient under both ChairmanBarnako?s ?reasonable predictability? rule and Commissioner Cleary?s?reasonable anticipat[ion]? rule (if those criteria have any meaning).Though it is true that the work ofsecuring decking would require Munder?s employees to move to the perimeter ofthe floors, the record does not indicate that the employees inevitably would beexposed to a falling hazard.[7] To the contrary, it ismore reasonable to conclude from the evidence that wire ropes would have beeninstalled by the time the employees came within close proximity to the edge. AsMunder?s assistant treasurer stated:?The only point I wanted to make was that theperimeter protection around that building was the responsibility of the generalcontractor, who had been providing the perimeter protection right along. Theonly point that I can see in this whole thing is the fact that when theperimeter protection was put into place, at [what] point did it becomenecessary to have it there? Our men from what Mr. Richardson [the inspector]said were not working close to the edge of the building, therefore, I can?t seea reason for the citation since the men were not in any particular danger, andthe floor was still in a temporary nature. The perimeter protection had justnot been put into place as yet, you know when he made his inspection.?Judge Burrought recognized the validity ofthese remarks in his decision, which is attached hereto as Appendix A, byconcluding that:There was no evidence presented to reflectthat any work was done closer than 10 feet to the perimeter. The complianceofficer assumed that work probably would progress to a point where employeeswould be in danger. However, it is just as reasonable to assume that the ? inchwire cable would be placed in conformity with the standard whenever theemployees became exposed to the danger of a fall. The Commission must decidecases on facts and not assumptions. The facts do not support the conclusion thatthe exposure of Munder?s employees to the hazard created by the absence of ofthe ?-inch wire cable was realistic. Since there was no realistic exposurethere can be no violation.\u00a0Moreover, even if it were certain that theemployees eventually would have worked near the edges of the floors lackingproper guarding I find it unjustifiable and I find it unjustifiable andcounterproductive to base liability on employees? future exposure. In Secretaryv. Gilles & Cotting, Inc., supra, I outlined what I submit as a muchmore rationale approach as follows:?In my view, the rule established in thiscase will result in punishing many innocent employers. This would be precludedunder an actual exposure rule without significantly impeding the correctivepurposes of the Act. After employers are advised of unsafe conditions byinspections, they can be expected to voluntarily correct those conditionsbefore their employees are actually exposed thereto. This is consistent withcongressional recognition of the fact that the purposes of the Act can best beachieved by voluntary means.? (Footnotes omitted.)\u00a0Finally, the ? 1926.750(b)(1) chargeagainst Munder and the ? 1926.350(a)(1) and (9) charges against both employersshould be vacated on the basis of the holding in Anning-Johnson Company v.OSAHRC, 516 F.2d 1081 (7th Cir. 1975), that employers are not liable underthe Act for conditions which they did not create, cause, or otherwise haveresponsibility for. As Judge Burroughs noted in his decision, ?[t]here is noevidence to show that Munder had any responsibility for providing ?-inch wirerope around the periphery of the temporary floor.? As for the ? 1925.350charges, Chairman Barnako concedes in footnote 5 of his opinion that ?neitherMunder nor Catino created or was responsible for correction of the gas cylinderviolations.? Accordingly, vacation of these charges is required by the SeventhCircuit?s Anning-Johnson decision.[8]APPENDIXA\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 1858 & 1860 ? A. MUNDER & SON, INC., AND ROBERT CATINO, INC. \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: June 21, 1973DECISION AND ORDERAPPEARANCES:Robert Catino, President, for respondentRobert Catino, Inc.\u00a0George Surline, Assistant Treasurer, forrespondent A. Munder & Son, Inc.\u00a0Louis De Bernardo, Esquire, New York, NewYork, for complainant?STATEMENT OF CASEThis is a consolidated proceeding underSection 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651et seq., 84 Stat. 1390 (hereinafter referred to as the Act) to review acitation issued to A. Munder & Son, Inc., on November 21, 1972, and acitation issued to Robert Catino, Inc. on November 27, 1972, by the Secretaryof Labor (hereinafter referred to as the complainant) pursuant to Section 9(a)of the Act. The penalties of $230.00 proposed against A. Munder & Son, Inc.and the penalties of $150.00 proposed against Robert Catino, Inc. are alsocontested by the respondents.On the basis of an inspection on October30, 1972, of a multistory office building under construction and located at theBankers Trust Plaza, Greenwich and Liberty Streets, New York City, it isalleged that respondents, who were subcontractors on the job, violated section5(a)(2) of the Act by failing to comply with certain specified safetystandards.A citation was issued to A. Munder &Son, Inc. (hereinafter sometimes referred to as Munder) on November 21, 1972,alleging a failure to comply with five (5) safety standards. The citationdescribed the alleged non-serious violations as follows: Item No. Standard Allegedly Violated Description 1 29 CFR 1926.750(b)(1)(iii) \u00a0 Failure to provide a safety railing of 1\/2 inch wire rope or equal installed around the periphery of all temporary metal decked floors of Tick Buildings during structural steel assembly. Location: (a) 10th floor was provided 1\/4 inch aircraft wire rope. (b) 11th floor not provided. (c) 12th floor not provided. (d) 13th floor not provided. \u00a0 2 29 CFR 1926.500(d)(1) \u00a0 Failure to provide a midrail and toeboard or the equivalent guarding around the perimeter of a open sided floor. Location: 9th Floor all sides perimeter was guarded by a top guard equivalent consisting of a 1\/4 inch aircraft wire rope only. \u00a0 3 29 CFR 1926.350(a)(1) \u00a0 Failure to provide (2) Oxygen compressed gas cylinders with valve protection caps. Location: 1st floor N.E. Area \u00a0 4 29 CFR 1926.350(a)(9) \u00a0 Failure to properly secure (2) Oxygen compressed gas cylinders in a upright position. Location: 1st floor N.E. Area. \u00a0 5 29 CFR 1926.500(a)(1)[9] \u00a0 Failure to provide a floor opening by a standard railing and toe board on all exposed sides. Location: open concrete Hoist Shaft. Middle of building. ? 5th floor 10 x 10 opening. ? 6th floor 10 x 10 opening. ? 7th floor 10 x 10 opening. ? 8th floor 10 x 10 opening. \u00a0 A notification of proposed penalty wasalso issued on November 21, 1972, proposing the following penalties for thealleged violations:? Item No. Alleged Violation Proposed Penalty 1 29 CFR 1926.750(b)(1)(iii) $135.00 \u00a0 2 29 CFR 1926.500(d)(1) \u00a0 40.00 3 29 CFR 1926.350(a)(1) \u00a0 None 4 29 CFR 1926.350(a)(9) \u00a0 25.00 5 29 CFR 1926.500(b)(1) 30.00 \u00a0 \u00a0A citation was issued to Robert Catino,Inc. (hereinafter sometimes referred to as Catino) on November 27, 1972,alleging a failure to comply with three (3) safety standards. The citationdescribed the alleged non-serious violations as follows: Item No. Standard Allegedly Violated Description 1 29 CFR 1926.500(b)(1) Failure to provide standard guarding of floor openings by a standard railing and toe board on all exposed sides. Location: Middle area of building on the following floors along the proposed concrete hoist shaft. (a) 1st floor 10 x 10 opening ? (b) 2nd floor 10 x 10 opening ? (c) 3rd floor 10 x 10 opening ? (d) 4th floor 10 x 10 opening ? (e) 5th floor 10 x 10 opening ? (f) 6th floor 10 x 10 opening ? (g) 7th floor 10 x 10 opening ? (h) 8th floor 10 x 10 opening and the following ? (i) 2nd floor North Side 7 x 10 ? (j) 1st floor North East Area 10 North side of opening exposed \u00a0 2 29 CFR 1926.350(a)(1) Failure to provide two oxygen compressed GH5 cylinders with valve protection caps. ? Location: 1st floor Northeast Area. \u00a0 3 29 CFR 1926.350(a)(9) Failure to secure two oxygen compressed gas cylinders in a upright position. ? Location: 1st floor Northeast Area. \u00a0 \u00a0The notification of proposed penaltyissued on the same date as the citation proposed a penalty of $125.00 for thealleged violation of 29 CFR 1926.500(b)(1). A penalty of $25.00 was proposedfor the alleged violation of 29 CFR 1926.350(a)(9).Timely notices of contests were filed bythe respondents. The complainant advised the Occupational Safety and HealthReview Commission of the notices of contest and the Commission assumedjurisdiction of the cases. On March 9, 1973, the Commission grantedcomplainant?s motion to consolidate the cases for hearing. On March 12, 1973,the cases were assigned to this Judge for purposes of conducting a hearingpursuant to Section 10(c) of the Act.A hearing was held in these consolidatedcases in New York City on April 4, 1973. No additional parties desired tointervene in the proceedings.??????????? Priorto evidence being presented complainant moved to delete all sub-parts of itemNo. 1 of the citation, with the exception of sub-part (d), issued to respondentCatino. The motion was granted (Tr. 4) and item No. 1 was amended to read asfollows:Failure to provide standard guarding offloor openings by a standard railing and toe board on all exposed sides.Location: Middle area of building on the following floors along the proposedconcrete hoist shaft.(d) 4th floor 10 x 10 opening.\u00a0ISSUESThe primary issues for determinationpertain to whether respondents Munder and Catino committed violations ofsection 5(a)(2) of the Act by failing to comply with the safety standards ashereinafter indicated for each respondent.A Munder & Son, Inc.?1. 29 CFR 1926.750(b)(1)(iii)?2. 29 CFR 1926.500(d)(1)?3. 29 CFR 1926.350(a)(1)?4. 29 CFR 1926.350(a)(9)?5. 29 CFR 1926.500(b)(1)?Robert Catino, Inc.?1. 29 CFR 1926.500(b)(1)?2. 29 CFR 1926.350(a)(1)?3. 29 CFR 1926.350(a)(9)?In the event either respondent committedany of the violations as alleged, a determination must be made as to theappropriate penalty or penalties, if any, to be assessed for the violations.FINDINGS OF FACTThe evidence of record has been carefullyconsidered and evaluated in its entirety. The facts hereinafter set forth arespecifically determined in resolving the proceeding.1. On October 30, 1972, the complainant,through a duly authorized compliance officer, conducted an inspection of aconstruction project at Bankers Trust Plaza, Greenwich and Liberty Streets, NewYork, New York. (Tr. 8) A. Munder & Son, Inc. and Robert Catino, Inc. weresubcontractors on the job. The general contractor was Fisher-WashingtonBuilding Corporation. (Tr. 9)2. A. Munder & Son, Inc. is a New YorkCorporation with its principal place of business located at 2810 38th Avenue,Long Island, New York. It is an employer affecting commerce within the meaningof the Act and employees an average daily number of approximately 80 persons.(Tr. 5)3. Munder had a net worth of approximately$1,000,000 in 1972 and is a small sheet metal contractor in relation to othersheet metal contractors in the New York City area. (Tr. 5)4. Robert Catino, Inc. is a New Yorkcorporation with its principal office located at 136 E. 55th St., New York, NewYork. It is an employer affecting commerce within the meaning of the Act andhas an average daily employment of approximately 20 to 25 persons. (Tr. 5?6)5. Catino is a carpentry contractor and issmall as compared to other like contractors in the New York City Area. (Tr. 6)It was responsible for installing barricades around the elevator shafts andplacing hand rails on the stairways. (Tr. 32)6. At the time of the inspection, Munderhad approximately 29 persons employed at the jobsite. (Tr. 23) Catino had fouremployees on the worksite at the time of inspection. (Tr. 37)7. The tenth floor contained loose steeldecking which was ready to be tacked. Approximately 12 employees of Munder werespreading and sorting out the steel decking and setting up to weld. A safetyrailing of 1\/4 inch wide wire cable was installed around the periphery of thetenth floor. (Tr. 10?11, 45)8. The eleventh floor contained steeldecking which had not been completely tacked down. Employees of Munder wereworking on the floor. There was no type of safety railing around the peripheryof the eleventh floor. (Tr. 12?13, 53?54)9. Employees of Munder were also workingon the twelfth and thirteenth floors of the building sorting out steel decking.There was no type of safety railing around the periphery of the twelfth andthirteenth floors. (Tr. 13?15, 53?54)10. No employees of Munder were observedworking closer than 10 feet to the perimeter of the 10th, 11th, 12th or 13thfloors of the building. The employees were working within the interior of thebuilding. (Tr. 24?25, 49?50, 60) No employees of Munder were in immediatedanger at the time of inspection. (Tr. 50)11. The ninth floor had steel deckingwhich was tacked down. There was a 1\/4-inch cable around the periphery of theninth floor. There was no midrail or toeboard on the ninth floor. Employees ofMunder were on the ninth floor. They were moving welding machinery andequipment to the upper floors. (Tr. 16?17, 55)12. The first nine floors of the buildingwere permanent floors. The 10th floor and upward were temporary floors. (Tr.17, 45, 54)13. The work of Munder on the ninth floorhad been completed and no employees were exposed to the perimeter of the ninthfloor. The equipment being moved off the ninth floor was done by use of thestairway. (Tr. 64?65) The stairway was at no point closer than 100 feet to theperimeter of the building. (Tr. 65)14. A concrete hoist shaft opening ofapproximately 10 x 10 was located in he middle of the building and extendedfrom the first floor to the eighth floor. A scaffold was being erected in theopening. There was no type of guard around the shaft on the 4th, 5th, 6th, 7th,or 8th floors. (Tr. 19?20, 32?33) Each floor was approximately 10 high. Therewas no type of protection provided to break the impact in the event someonefell. (Tr. 20, 33)15. Employees of Munder were not workingon the 5th, 6th, 7th or 8th floors. The elevator contractors were on strike andemployees had to walk up the stairways. Employees of Munder were using thestairways and would at times rest on the 5th, 6th, 7th or 8th floors. Thestairway was approximately 30 feet from the concrete hoist shaft. (Tr. 21, 44,62?63) No employees were observed resting closer than 20 feet to the hoistshaft. (Tr. 64)16. The contractual responsibility forproviding protection around the concrete hoist shaft was that of the generalcontractor. (Tr. 66, 70)17. Two compressed gas cylinders, oneoxygen and one acetylene, were located in the northeast corner of the firstfloor. The cylinders were lying on their sides and were unsecured. There wereno caps over the valve of the cylinders. (Tr. 17?19, 34?35) The cylinders werenear the main entrance of the building. Employees of Munder and Catino wereobserved passing within approximately ten feet of the cylinders. (Tr. 18,34?35, 41?42, 57)18. The gas cylinders were not owned byMunder or Catino. (Tr. 43, 56) The employees of Catino and Munder did nothandle the gas cylinders. (Tr. 41, 52)19. An unadjusted penalty of $100.00 wasproposed against Munder by complainant for the alleged violation of 29 CFR1926.350(a)(9). The gravity was considered to be low. (Tr. 28) In arriving atthe unadjusted penalty, complainant considered the alleged violation inconjunction with the alleged violation of 29 CFR 1926.350(a)(1) for which nopenalty was proposed. (Tr. 27?28)20. In determining the proposed penaltyagainst Munder, complainant allowed a 20 percent reduction for good faith, a 20percent reduction for history and 5 percent for size. (Tr. 22?23, 25, 27?30) Afurther reduction of 50-percent was allowed for abatement. (Tr. 28)21. Munder has a good safety program andwas cooperative during the inspection. (Tr. 23)22. Two employees of Catino were workingon the fourth floor. They were placing barricades around the elevator shaft.The elevator shaft was approximately 20 feet from the concrete hoist shaft.(Tr. 31, 34, 57?58) The work of the employees of Catino never took them anycloser than 20 feet to the hoist shaft. (Tr. 70?72)23. The employees of Catino working on thefourth floor were experienced in working around openings and knew what theywere doing. (Tr. 60, 74) They had been installing barricades around openingsfor 20 years. They were aware of their distance from the concrete hoist shaft.(Tr. 74)24. The barricades which employees ofCatino were placing around the elevator shaft on the fourth floor were prefabricatedapproximately 50 feet from the hoist shaft and carried to the elevator shaft.They were installed within a few minutes. (Tr. 71?73)25. An unadjusted penalty of $100 wasproposed against Catino by complainant for the alleged violation of 29 CFR2926.350(a)(9). The gravity of the violation was considered to be low. (Tr. 40)In arriving at the unadjusted penalty, complainant considered the allegedviolation in conjunction with the alleged violation of 29 CFR 1926.350(a)(1)for which no penalty was proposed. (Tr. 40)26. In determining the proposed penaltyagainst Catino, complainant allowed a 20-percent reduction for good faith, a20-percent reduction for history and 10-percent for size. (Tr. 36?37, 39) Anabatement credit of 50-percent was also allowed Catino on the penalty proposedagainst it. (Tr. 39?41)LAW AND OPINIONComplainant alleges that respondentsviolated Section 5(a)(2) of the Act by failing to comply with safety standardspromulgated under the Act. Section 5(a)(2) of the Act provides that eachemployer shall comply with occupational safety and health standards promulgatedunder the Act. A determination must be made as to whether respondents violatedthe standards cited in the citations issued to them.Alleged violations committed by Munder??????????? 1. 29CFR 1926.750(b)(1)(iii)Section 1926.750(b)(1)(iii) of 29 CFRprovides as follows:Floor periphery?safety railing. A safetyrailing of 1\/2-inch wire rope or equal shall be installed, approximately 42inches high, around the periphery of all temporary-planked or temporarymetal-decked floors of tier buildings and other multifloored structures duringstructural steel assembly.?The evidence is undisputed that the 10th,11th, 12th, and 13th floors were temporary metal-decked floors and that asafety railing of 1\/2 inch wire rope or equal was not installed around theperiphery of those floors. A violation of the standard appears to beestablished. However, the resolution of this issue is not so simple. Theramifications of determining a violation against Munder extend beyond the merefact that the specifications of 29 CFR 1926.750(b)(1)(iii) were not fulfilled.The avowed purpose of the Act is toprovide safe and healthful working conditions for employees. A duty is createdbetween the employer and his employees to achieve this stated objective.Generally, each employer is responsible for the working conditions of hisemployees and for assuring compliance with standards applicable to the actionsand conduct of his employees. The crux of any violation is whether there hasbeen employee exposure to an unsafe working condition rather than the fact thatspecifications of a standard have not been followed. If no employees hadventured to work on the 10th, 11th, 12th or 13th floors, the specifications of29 CFR 1926.750(b)(1)(iii) would still have been unsatisfied, but there wouldhave been no employee exposure. There could have been no employee injurywithout exposure to the hazard for which the standard was promulgated. Sincethe primary objective of the standards is to protect employees, that objectivewould have been achieved by employer restraint on the actions of his employees.Where employees of different employers are working inthe same establishment, such as in this case, difficult matters of judgment areinvolved. One must ascertain who created the hazard and whose employees wereexposed to the unsafe working conditions. An employer who does not create thehazard may nevertheless be in violation of the standard if he knew orreasonably should have known of the hazard before permitting his employees towork in the hazardous area where they are exposed to the dangers for which thestandard was promulgated. The employer creating the hazard may also be inviolation if his actions and conduct endangered an employee, whether his own orthose of another employer.There is no evidence to show that Munder had anyresponsibility for providing the 1\/2 inch wire rope around the periphery of thetemporary floors. Thus, insofar as Munder is concerned, the pertinent issue iswhether Munder?s employees were exposed to the hazard presented by the standardwhich it allegedly violated. There is no dispute over the fact that Munder wasaware of the absence of the 1\/2 inch wire rope. It contends, however, that theemployees were not in any danger and were not exposed to the hazard for whichthe standard was promulgated to prevent?namely, falling off the edge of thebuilding. (Tr. 69)Employees of Munder were working on the10th, 11th, 12th and 13th floors of the building. They were working within theinterior of the building and none were closer than 10 feet to the perimeter ofthe various floors. The complainant appears to take the position that the merepresence of employees of Munder on the floors without the 1\/2 inch wire cablewas per se a violation of the standard by Munder. (Tr. 76?77) Such aninterpretation is neither reasonable nor fair.Is a whole floor automatically hazardousto all employees on it by virtue of the absence of a 1\/2 inch wire cable aroundthe periphery? This question must be answered in the negative. There isevidence that the floors were approximately 200 x 300 in dimensions. (Tr. 65)Obviously, there were many areas where employees could work on the floorswithout any danger of being exposed to a possible fall over the perimeter ofthe floors. It is unrealistic to conclude that employees of Munder were exposedto a possible fall over the edges of the floors simply because they wereperforming work on the floors without the 1\/2 inch wire cable around the periphery.Where a condition or hazard was not created by a particular employer, theremust be substantial evidence to reflect a reasonable connection between theviolation and actual exposure of that employer?s employees to the condition forwhich the standard was promulgated to remedy.What constitutes actual exposure to anunsafe working condition? This question can not be resolved without firstascertaining the hazard or unsafe working conditions for which the standardseeks to eliminate. Once this fact is determined, whether there is actualexposure is dependent upon the facts and reasonable judgment. The judgmentbeing exercised must be fair, impartial and aimed at promoting the objectivesof the Act. The safety of the employees should be paramount.Munder did not create the hazard and willnot be held in violation of the standard unless its employees were exposed oraffected by the hazard. The absence of the 1\/2 inch wire cable exposed anyoneworking in close proximity to the perimeter of the floors to a possible fall.The pertinent question is how close must one be working to the perimeter to bein danger of falling over the edge of the floor. The answer to this questionmust necessarily vary according to the circumstances of each case (e.g. type ofwork being performed and closeness to the edge) and definitive limits aredifficult to determine. The proven facts of this case are convincing that aworking distance of 10 feet from the perimeter of the floors did not endangerthe safety of any employee.The danger forseen by the complianceofficer was more illusory than real. Anyone accidentally falling 10 feet fromthe perimeter of a floor is in no real danger of falling over the edge. Indeed,the compliance officer admitted that the employees were in no real danger atthe time he observed them. (Tr. 50) The exposure of Munder?s employees was tooremote to conclude that Munder was in violation of the standard. A buffer zoneof 10 feet was sufficient to protect the employees. Employees use to working atconsiderable heights can be expected to exercise reasonable care in theexecution of their assigned duties.There was no evidence presented to reflectthat any work was done closer than 10 feet to the perimeter. The complianceofficer assumed that work probably would progress to a point where employeeswould be in danger. However, it is just as reasonable to assume that the 1\/2inch wire cable would be placed in conformity with the standard whenever theemployees became exposed to the danger of a fall. The Commission must decidecases on facts and not assumptions. The facts do not support the conclusionthat the exposure of Munder?s employees to the hazard created by the absence ofthe 1\/2-inch wire cable was realistic. Since there was no realistic exposurethere can be no violation.2. 29 CFR 1926.500(d)(1)Section 1926.500(d)(1) of 29 CFR providesas follows:Every open-sided floor or platform 6 feetor more above adjacent floor or ground level shall be guarded by a standardrailing, 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 fixedladder. The railing shall be provided with a standard toeboard wherever,beneath the open sides persons can pass, or there is moving machinery, or thereis equipment with which falling materials could create a hazard.?The evidence is undisputed that the 9thfloor had no toeboard or intermediate railing as specified in paragraph (f)(1)of the section. However, this does not per se imply that Munder is in violationof the standard. There is no evidence to indicate that Munder was charged withthe responsibility of insuring that the 9th floor contained a toeboard andintermediate rail around the perimeter. Munder must be judged on the basis ofwhether its employees were exposed or affected by the hazards resulting fromthe absence of the intermediate rail and toeboard.It is apparent that the requirements forintermediate rails and toeboards around open-sided floors is to protectemployees from accidental falls over the edge of the floors and to preventtools or equipment from being accidentally shoved over the side and crating ahazard for any employees working below. The evidence does not reflect thatMunder?s employees were exposed to either of these hazards. Munder had finishedits work on the 9th floor and was in the process of moving equipment from the9th floor to the upper floors by use of the stairway. The stairway was locatedapproximately 100 feet from the perimeter of the floor. The compliance officeradmitted that the employees were working inside the building and were notexposed to the perimeter. (Tr. 64?65)The fact that a prime contractor oranother subcontractor may have violated a standard does not automaticallyjustify a determination of the same violation against other employers workingin the same establishment. There may be instances where such a determination isjustified (e.g. erecting and using of unsafe scaffolding by prime contractorwhich is later used by a subcontractor), but the determination must be based onproven facts. If the facts do not reflect actual exposure of employees to thehazard or hazards for which the standard was promulgated, then a violation willnot be sustained. The objective of the act is to protect employees from unsafeworking conditions. This objective contemplates realistic unsafe conditionswhich relate directly to the work being accomplished by the employees.The complainant seeks to sustain itsburden on this issue by simply proving that employees of Munder were on the 9thfloor. In view of the type of hazards for which the standard seeks to prevent,the evidence is insufficient. There is no evidence to reflect how closeemployees were to the perimeter. The compliance officer admitted that theemployees were working inside the interior of the 9th floor and not exposed tothe perimeter. No evidence was introduced by complainant to justify anydetermination that any employees of Munder working on the 9th floor were indanger or exposed to any actual harm.Alleged Violations Committed by Munder andCatino1. 29 CFR 1926.350(a)(1)Section 1926.350(a)(1) of 29 CFR providesas follows:Valve protection caps shall be in placeand secured.?The evidence is undisputed that two gascylinders located in the northeast corner of the first floor had no valveprotection caps in place and secured. The cylinders were near the main entranceto the building.??Thegas cylinders were not owned by Munder or Catino and its employees did not useor handle them. Since they had no responsibility for care of the cylinders, thepertinent issue is whether their employees were exposed to the hazard emanatingfrom the condition of the cylinders. There is no dispute over the fact thatMunder and Catino knew of the violation of the standard.The primary hazard presented by theabsence of the valve caps was the possibility that something could fall on orstrike the valves and cause an explosion. (Tr. 27) Employees of Munder andCatino were observed within 10 feet of the gas cylinders. This was well withina harmful range in the event one of the cylinders exploded. While the chancesof such an event actually occurring were extremely remote, the possibilitynevertheless existed. A distance of 10 feet would not have been sufficient tohave assured the safety of employees of Munder and Catino in the event of anexplosion. The hazard presented here is quite unlike that presented by thealleged violation of 29 CFR 1926.750(b)(1)(iii) where a distance of 10 feet wasdetermined to afford sufficient safety to the employees. In the event one ofthe cylinders exploded, fragments would have been hurled several feet. Underthe circumstances the potential hazard necessitates a greater protective rangefor employees. Employees were exposed to a hazard for which the standard waspromulgated to prevent.2. 29 CFR 1926.350(a)(9)Section 1926.350(a)(9) of 29 CFR providesas follows:Compressed gas cylinders shall be securedin an spright position at all times except, if necessary, for short periods oftime while cylinders are actually being hoisted or carried.?The evidence is undisputed that the twogas cylinders were unsecured and were lying on their sides. Since Catino andMunder did not have responsibility for care of the cylinders, a determinationmust be made as to whether their employees were exposed to the dangers forwhich the standard was promulgated. There is no dispute over the fact thatCatino and Munder were aware of the violation of the standard and that theiremployees approached within 10 feet of the cylinders.If one of the cylinders had been struck onthe valve with an object, a possibility existed that the cylinder could havebecome a projectile similar to a torpedo. (Tr. 27) Anyone in the immediatevicinity in such an eventuality would have been in danger. Since the exposurewas to the possibility of a projected object, a distance of 10 feet was notsufficient to assure the safety of the employees. Munder and Catinosufficiently exposed their employees to the hazard to conclude that they werein violation of the standard.3. 29 CFR 1926.500(b)(1)The citation and complaint in the Mundercase allege a violation of 29 CFR 1926.500(a)(1), whereas the citation andcomplaint in the Catino case refers to an alleged violation of 29 CFR 1926.500(b)(1).There is no 29 CFR 1926.500(a)(1). The description in the citation andcomplaint in Munder make it clear that reference was intended to be to 29 CFR1926.500(b)(1). The alleged exposure of both respondents were to an openconcrete hoist shaft. The citation issued to Munder described the violationwith sufficient particularity to advise Munder that the violation consisted ofthe absence of a standard railing and toeboard around the concrete hoist shafton the 5th, 6th, 7th and 8th floors of the building. The inadvertent referencesto 29 CFR 1926.500(a)(1) did not mislead Munder. The evidence presented tosubstantiate the violation was also consistent with a violation of 29 CFR1926.500(b)(1). Since Munder was fully apprised of the facts surrounding thealleged violation, the Commission is not prevented from considering anddeciding the facts as pertaining to the correct subsection. See AmericanNewspaper Publishers Association v. NLRB, 193 F.2d 782, 799?800 (7th Cir.1951), aff?d. 345 U.S. 100 (1953), wherein the court stated:* * * The failure to specify in thecomplaint the correct subsection of the Act did not require the Board todismiss this charge without a consideration as to the sufficiency of the proof.Where, as here, the complaint clearly describes an action which is alleged toconstitute an unfair labor practice but fails to allege which subsection of theAct has been violated or alleges the wrong subsection, such failure or mistake,if it does not mislead the parties charged, does not prevent the Board fromconsidering and deciding the charge so presented.?Section 1926.500(b)(1) of 29 CFR providesas follows:Floor openingsshall be guarded by a standard railing and toe boards or cover, as specified inparagraph (f) of this section. In general, the railing shall be provided on allexposed sides, except at entrances to stairways.?A concrete hoist shaft approximately 10 x10 was located in the middle of the building. There was no type of railing ortoeboard around the concrete shaft on the 4th, 5th, 6th, 7th and 8th floors andno type of protection to soften the impact in the event someone fell. Munderand Catino did not have the responsibility for providing railings and toeboardsaround the hoist shaft. They did have a responsibility not to expose theiremployees to the hazards created by the absence of the railings and toeboards.The reasoning of the complainant in citingMunder for a violation of this standard is difficult to comprehend. Itsemployees were not working on the 5th, 6th, 7th and 8th floors. There was nodirect exposure to the hazards associated with the absence of the railings andtoeboards around the concrete hoist shaft. Employees were simply using thestairways, which were in conformity with the safety standards, on these floorsto ascend to their working areas. The elevator contractors were on strike andthe employees had no other available avenues of gaining access to the workingareas. The stairway was approximately 30 feet from the concrete hoist shaft.Since the employees occasionally stopped on these floors to rest, complainantconsiders they were exposed to a possible fall into the hoist shaft. Such logicstretches the imagination beyond reasonable limits.The evidence is undisputed that Munder?semployees had no assigned duties on the 5th, 6th, 7th or 8th floors. It seemsreasonable that Munder was justified in concluding that the concrete hoistshaft on these floors offered no danger to its employees. The duties of theemployees only required them to ascend the stairway on these floors to get totheir work areas. They did not have to work on these floors.??????????? Complainant?s logic seems to presume that theemployees, while resting on these floors, would intentionally orunintentionally expose themselves to the danger of the unguarded concrete hoistshaft. The important criteria is whether the duties assigned to the employee bythe employer exposed him to an unsafe working condition. The employer can notbe judged guilty of a violation on the basis of an irresponsible act of anemployee which he did not know of or could not reasonably anticipate. If anemployee decides to expose himself to a hazard which is outside the scope ofhis assigned duties there is little an employer can do until after the eventhas occurred.There is no evidence to support thecomplainant?s fear that employees would expose themselves to the unguardedhoist shaft. No employees were observed any closer than 20 feet to the hoistshaft as they ascended the stairway. Such exposure, when coupled with the factthat they had no assigned duties on the floors, was too remote to be realistic.Two employees of Catino were placingbarricades around the elevator shaft on the 4th floor. The elevator shaft wasapproximately 20 feet from the concrete hoist shaft. The employees had noassigned duties any closer than 20 feet to the concrete hoist shaft and wereaware of their distance from the shaft.A 20 foot zone is more than sufficientprotection to prevent an employee from falling over an unguarded shaft. This isespecially true for employees experienced in working around openings. The twoemployees of Catino were experienced in placing barricades around openings andhad been doing that type of work for approximately 20 years. A distance of 20feet from an unguarded opening presents no hazard to employees whose jobs for20 years have been to place barricades around openings. The exposure ofCatino?s employees on the fourth floor was too remote to warrant any conclusionthat it violated the cited standard.APPROPRIATENESS OFPENALTIESOnce a notice of contest is served, theauthority to assess civil penalties under the Act resides exclusively with theCommission. The Commission, in Section 10(c) of the Act, is charged withaffirming, modifying or vacating citations issued by the Secretary underSection 9(a) and notifications issued and penalties proposed by the Secretaryunder Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, isexpressly required to find and give ?due consideration? to the size of theemployer?s business, the gravity of the violation, the good faith of theemployer and the history of previous violations in determining the assessmentof an appropriate penalty. See Secretary of Labor v. Nacirema OperatingCompany, Inc., OSHRC Docket No. 4.In Nacirema the Commission statedthat the four criteria to be considered in assessing penalties cannot always begiven equal weight. It indicated that the principal factor to be considered inassessing an appropriate penalty for a violation is the gravity of the offense.In Secretary of Labor v. National Realty and Construction Company, Inc.,OSHRC Docket No. 85, the Commission stated that in determining the gravity of aviolation, several elements must be considered, including but not necessarilylimited to the following: (1) the number of employees exposed to the risk ofinjury; (2) the duration of the exposure; (3) the precautions taken againstinjury, if any; and (4) the degree of probability of occurrence of an injury.The Commission in Secretary of Labor v.J. E. Chilton Millwork and Lumber Company, Inc., OSHRC Docket No.123, indicated that relatively minor monetary penalties do little to effectuatethe objective of the Act, namely, to insure a safe and healthful workplace. Thesame rationale was applied by the Commission in Secretary of Labor v.General Meat Company, Inc., OSHRC Docket No. 250. Small monetary penaltieswere eliminated in both cases since the violations had been abated. However,this rationale was directed toward relatively minor violations of the Act whichwould be better described as de minimis. The Commission recognized that therewould be instances where a small penalty would be justified. Whether smallmonetary penalties are justified must be determined by the relationship betweenthe non-serious violation involved and the corresponding degree of gravity. Secretaryof Labor v. Hydroswift Corporation, OSHRC Docket No. 591.Munder and Catino have been determined tohave violated 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9). No penaltieswere proposed by complainant for the violations of 29 CFR 1926.350(a)(1).Penalties of $25.00 were proposed for the violations of 29 CFR 1926.350(a)(9).The $25.00 penalties were determined by complainant due to the combination ofthe two violations [29 CFR 1926.350(a)(1) and (a)(9)] rather than the singleviolation of 29 CFR 1926.350(a)(9). (Tr. 28, 40) The compliance officerbelieved the $25.00 penalties for the violations of 29 CFR 1926.350(a)(9) werejustified because of the combination of the two items. The use of this approachis unjustified in determining a penalty for a single violation.Where violations are separately stated ina citation, each violation must stand on its own insofar as the determinationof a penalty is concerned. It is inappropriate to combine separate violationsonly for purposes of determining a penalty and conclude that the gravity of twoor more violations warrant proposing a penalty for one of them. Section 17(j)of the Act speaks in terms of ?the gravity of the violation?. The criteria ofSection 17(j) must be applied to each separate violation contained in thecitation and the penalties determined according to the factors specified inSection 17(j).After consideration of the four criteriaprovided by Section 17(j) and applying the rationale of the Commission in J.E. Chilton Millwork and Lumber Company, Inc., supra, and General MeatCompany, Inc., supra, for each separate violation, it is concluded that thegravity of the violations do not warrant the assessing of any penalties. Thegravity of the violations must be construed to be extremely low. Theprobabilities of the valves being hit by an object and causing an explosion orsetting the cylinders in motion as a torpedo were highly remote. The employeeswere not handling or using the cylinders. Any exposure would have been verybrief since they were merely walking by the cylinders. The probability of anoccurrence of an injury was remote.Consideration has also been given toarriving at some consistency and uniformity in assessing penalties. In Secretaryof Labor v. G. C. Colyer & Co., Inc., OSHRC Docket No. 573, thecomplainant did not consider violation of 29 CFR 1926.350(a)(9) of such agravity to warrant a penalty and no penalty was assessed by the Commission. Thefacts surrounding the violation in that case were similar to the circumstancessurrounding the violation of 29 CFR 1926.350(a)(9) in these cases.CONCLUSIONS OF LAW1. The respondents were at all timesmaterial hereto engaged in a business affecting commerce within the meaning ofSection 3 (5) of the Act.2. The respondents were at all timesmaterial hereto subject to the requirements of the Act and the standardspromulgated thereunder.3. Munder and Catino violated Section5(a)(2) of the Act by committing non-serious violations of safety standardspublished at 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9).4. Munder and Catino did not commitnon-serious violations of the safety standard published at 29 CFR1926.500(b)(1).5. Munder did not commit non-seriousviolations of the safety standards published at 29 CFR 1926.750(b)(1)(iii) and29 CFR 1926.500(d)(1).6. No penalties are appropriate for theviolations of safety standards 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9).ORDERUpon the basis of the foregoing findingsof fact and conclusions of law, it isORDERED:1. That items 3 and 4 of the citationissued to Munder on November 21, 1972, which pertained to alleged violations of29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9), are affirmed and that theremaining items of the citation are vacated;2. That items 2 and 3 of the citationissued to Catino on November 27, 1972, which pertained to alleged violations of29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9), are affirmed and that theremaining item of the citation is vacated; and3. That the notifications of proposedpenalties issued to Munder and Catino on November 21, 1972, and November 27,1972, respectively, are vacated.?Dated this 22 day of May, 1973.?JAMES D. BURROUGHSJudge\u00a0Copiessent by certified mail to:?FrancisV. LaRuffaRegionalSolicitor1515Broadway, Rm. 3555NewYork, New York 10036?FredMunderAMunder and Son, Inc.28?10Thirty-eighth AvenueLongIsland City, New York 11101?RobertCatino, PresidentRobertCatino, Inc.136East 55th StreetNewYork, New York 10022?[1] 29 U.S.C. 651 etseq. hereinafter ?the Act.?\u00a0[2] This standardrequires in pertinent part that ?[f]loor openings shall be guarded by astandard railing and toe boards or cover. . ..? A ?floor opening? is defined at29 C.F.R. ? 1926.502(b) as ?[a]n opening measuring 12 inches or more in itsleast dimension in any floor, roof, or platform through which persons mayfall.?\u00a0[3] These standardsrequire respectively that ?[v]alve protection caps shall be in place andsecured? and that cylinders ?shall be secured in an upright position at alltimes except, if necessary, for short periods of time while cylinders areactually being hoisted or carried.?[4] 29 C.F.R. ?1926.750(b)(1)(iii) requires that ?[a] safety railing of ?-inch wire rope orequal shall be installed, approximately 42 inches high, around the periphery ofall temporary-planked or temporary metal-decked floors of tier buildings andother multifloored structures during structural steel assembly.? 29 C.F.R. ?1926.500(d)(1) provides in pertinent part that ?[e]very opensided floor orplatform 6 feet or more above adjacent floor or ground level shall be guardedby a standard railing . . . on all open sides . . ..? The first standard islimited to steel erection whereas the second applies generally.[5] The record showsthat neither Munder nor Catino created or was responsible for correction of thegas cylinder violations, and Munder argued before the Judge that perimeterprotection was the responsibility of the general contractor. We have said thatin circumstances of this kind the duty of the subcontractor is to exertreasonable efforts to have violative conditions corrected by the responsiblecontractor or by the general contractor, or to take other appropriate steps toprotect its employees from hazards to which they have access and which it couldreasonably be expected to detect. We further said that the burden is on theemployer to show that it has discharged this duty. Grossman Steel &Aluminum Corp., No. 12775 (OSHRC, May 12, 1976); Anning-Johnson Co.,Nos. 3694 & 4409 (OSHRC, May 12, 1976).\u00a0NeitherRespondent has shown that it took any steps to have the violations corrected orto otherwise protect its employees. Under the circumstances of this case,however, we will afford the Respondents an additional opportunity to presentevidence to establish this defense.[6] We note Munder?sargument that the general contractor had been providing perimeter protection ona continual basis. See note 5 supra. Indeed, the record shows that allfloors below the 11th floor were equipped with perimeter guarding in the formof a ?-inch cable.[7] ChairmanBarnako?s reliance on Secretary v. Underhill Construction Company,OSAHRC Docket No. 2516, April 19, 1976, for applying the access rule ismisplaced since the majority therein found that employees working four feetfrom the edge of an unguarded floor were actually exposed to a falling hazard.[8] For discussion ofthe unfairness and impropriety of the Barnako-Cleary rule on subcontractorliability, see my separate opinions in Secretary v. Truland-Elliot,OSAHRC Docket No. 11259, July 21, 1976; Secretary v. Otis Elevator Company,OSAHRC Docket No. 8468, May 14, 1976; Secretary v. Grossman Steel &Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976; Secretaryv. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12,1976.[9] There is no 29 CFR1926.500(a)(1). The description of the violation indicates that reference wasintended to be to 29 CFR 1926.500(b)(1), and for purposes of this decisionreference will be to 29 CFR 1926.500(b)(1).”