“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9507 ABBOTT-SOMMER, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 17, 1976?DECISIONBEFORE BARNAKO,Chairman; MORAN and CLEARY, Commissioners.BY THECOMMISSION:Thedecision of Administrative Law Judge Thomas J. Donegan in this case, datedSeptember 4, 1975, is before the Commission pursuant to an order issued undersection 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?651 et seq. [hereinafter the ?Act?]. The decision vacated Item Number 1 ofCitation Number One alleging a failure by Abbott-Sommer, Inc., to providepotable water to its employees working on a flat roof. Items numbered 2 and 3alleging failure to require employees to wear head protection while hoistingbags of slag to the roof and failure to provide an enclosed trash chute, wereaffirmed. Citation Number Two alleging non-compliance with the guardingrequirements of safety standard 29 CFR ?\u00a01926.500(d)(1) was affirmed. JudgeDonegan also affirmed Citation Number 3 alleging non-compliance with safetystandard 29 CFR ? 1926.28(a) because an employee was working at the edge of theroof pulling bags of slag onto the roof without proper personal protectiveequipment. Civil penalties in the total amount of $925 were assessed for theviolations.Theorder for review was issued sua sponte by Commissioner Moran on the followingissues:(1)Was the occupational safety and health standard codified at 29 C.F.R. ? 1926.500(d)(1) applicable in this case?(2)Did the Judge properly follow the rule set forth in Underhill v. Brennan,513 F.2d 1032 (2d Cir., 1975) and properly apply the rule set forth in Anning-Johnsonv. OSAHRC, 516 F.2d 1081 (7th Cir., 1975) in deciding this case?Theparties have filed no exceptions to the Judge?s decision. Hence there is noappeal to the full Commission. Also, the parties have declined to brief theissues listed in the order for review issued sua sponte by Commissioner Moran.This being so, we decline to pass upon these issues or any other aspect of theJudge?s disposition in the absence of a compelling public interest. See Boring& Tunneling Co., of America, Inc., No. 5782, OSHD Para. 20,253, ?? OSHC?? (December 29, 1975). Accordingly, the Judge?s decision is affirmed.?So ORDERED.?FOR THECOMMISSION:?William S. McLaughlinExecutive SecretaryDATED: FEB 17,1976?MORAN,Commissioner, Concurring in Part, Dissenting in Part:Therefusal of the foregoing opinion to address the directed issues leavesunresolved the Commission?s position on two important issues which haverecently been resolved by Circuit Court decisions that conflict with theCommission?s action in this case.Employeesof respondent were engaged in laying tar paper on the flat roof of a buildingunder construction when its worksite was inspected. Because the perimeter ofthis roof was not enclosed with guardrails, respondent was charged with afailure to comply with the occupational safety standard codified at 29 C.F.R. ?1926.500(d)(1), which provides that:?Every opensidedfloor or platform 6 feet or more above adjacent floor or ground level shall beguarded by a standard railing, or the equivalent. . . .??InSecretary v. S. D. Mullins Company, Inc. & Diamond Roofing Company,4 OSAHRC 1415 (1973), appeal docketed, Nos. 73?3704 and 73?3705, 5th Cir.,November 14, 1973, the Commission ruled that the above-cited standard appliedto flat roofs, a decision from which I dissented. The Commission concluded thatthis standard was applicable to flat roofs because:?. . . a flat roofbeing constructed by employees and upon which they walk during the course oftheir work is a ?floor? rather than a roof to such employees.?\u00a0Thisposition has been reaffirmed by a divided Commission in Secretary v. Lance RoofingCompany, Inc., 6 OSAHRC 95 (1974), appeal docketed, No. 74?1343, 5th Cir.,February 8, 1974, and several other cases.Subsequently,however, in Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor &OSAHRC, 524 F.2d 1337 (7th Cir. 1975), the Circuit Court ruled that theinterpretation of section 1926.500(d)(1) advocated by the Secretary and adoptedby the Commission did not accord with normal usage and was unreasonable,particularly in view of that fact that 29 C.F.R. ?\u00a01926.451(u)(3),[1]the only regulation expressly requiring protection for roof edges, does notapply to flat roofs and even specifically exempts roofs having slopes of lessthan 4 inches in 12.[2]Thus,the question which should be resolved here is whether the Commission willadhere to its prior positions or whether it will adopt the view of the CircuitCourt. Cf. Textron, Inc., 196 NLRB No. 127, 80 LRRM 1099, reversed onother grounds in National Labor Relations Board v. Bell Aerospace,Division of Textron, Inc., 416 U. S. 267, 94 S. Ct. 1757 (1974).AsI state in my dissent in S. D. Mullins, supra, interpreting the term?floor? in the cited standard to mean ?roof? is contrary to common sense andfails to provide fair notice of what this standard requires. Accordingly, Ibelieve that the Commission should adopt the Circuit Court?s viewpoint on thisquestion.TheCommission?s failure to address this issue leaves our trial courts uncertain asto just what position is taken by the Commission. Likewise, the Commission?sfailure to consider the relevance of the Circuit Court?s opinion in Anning-JohnsonCompany v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975), for another allegedviolation in this case leaves unsettled the important question of subcontractorliability for safety infractions on multi-employer worksites.InAnning-Johnson it was held that subcontractors working on multi-employerconstruction sites were not liable for nonserious violations of standards towhich their employees were exposed, but which the subcontractors neithercreated nor were responsible for, pursuant to their contractual duties. This Anning-Johnsonrule conflicts with our rule that subcontractors may be cited for violations towhich their employees are exposed, notwithstanding the fact that violations arenonserious and were not created by, or the responsibility of, the citedsubcontractor?a position taken by this Commission in a number of cases.[3]Inthis case, respondent, who was a roofing subcontractor, was charged with anonserious violation of 29 C.F.R. 1926.252(a)[4]because there was no enclosed chute from the roof level to the ground fordisposing of debris and an employee of respondent was observed throwing debrisfrom the roof.Oneof the defenses that respondent posed to this charge was that responsibilityfor installing the chute rested with the general contractor and not respondent.[5]The Judge rejected this defense, giving the following reasons for his ruling:(1) no showing had been made that respondent?s status as a subcontractorprevented it from erecting the chute; (2) if the required protection is notprovided by the contractor, a subcontractor must provide it or stop work untilit is supplied; and (3) a subcontractor is not relieved of responsibility forcompliance with the Act by the contractor?s overall responsibility.Eachof the reasons given by the Judge for rejecting this defense is addressed inthe Circuit Court?s opinion in Anning-Johnson. First, the Court in Anning-Johnsondid not require that the cited subcontractors show that they were prevented fromcorrecting the alleged violations to escape liability for those violations. Infact, the subcontractors in that case stipulated that they were not prohibitedfrom abating the alleged violations. Secondly, the suggestion thatsubcontractors stop work until the required protection is provided by thegeneral contractors was characterized by the Anning-Johnson Court as anunrealistic and economically unfeasible solution. Lastly, the Court held that asubcontractor is, under some circumstances, relieved of liability for safetyinfractions to which his employees are exposed and, as noted above, definedthose circumstances. Accordingly, I find that the Judge should be reversed onthe basis of the Anning-Johnson decision.Forthe foregoing reasons, I would vacate Citation 2 and Item 3 of Citation 1.Sincethe Commission decision does not address any of the matters covered in JudgeDonegan?s decision, the same is attached hereto as Appendix A.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9507 ABBOTT-SOMMER, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0DECISION AND ORDERAPPEARANCES:For theComplainant: Francis V. LaRuffaRegionalSolicitorU.S. Departmentof Laborby: Louis D.DeBernardo, Attorney1515 BroadwayNew York, NewYork 10036\u00a0For theRespondent:David Neuwirth,Attorney250 West 57thStreetNew York, New York10019\u00a0Donegan,Judge:Thisis a proceeding pursuant to section 10(c) of the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to asthe Act).TheRespondent, Abbott-Sommer, Inc., a roofing contractor, had a place ofemployment at 319 Cumberland Avenue, Totowa, New Jersey when this worksite wasinspected on July 17 and 18, 1974 by a compliance officer (inspector) of theOccupational Safety and Health Administration, U.S. Department of Labor.Asa result of this inspection there were issued to the Respondent on August 1,1974 a citation number one for nonserious violations (3 items), a citationnumber two for a serious violation, a citation number three for a seriousviolation, and a notification of a total proposed penalty of $1,645 for all ofthe alleged violations.TheRespondent timely contested the three citations and the proposed penalties.Thecontested citations, proposed penalties and the standards allegedly violatedare as follows:Citation NumberOne (Nonserious)? Item Number 1 St. Joseph?s Home for the Aged, North wing roof, employees did not have any potable water supplied. \u00a0 Abatement Date: Immediately upon receipt of this citation. \u00a0 Proposed Penalty: $35 Standard cited: 29 CFR 1926.51(a)(1) ? ? 1926.51 Sanitation. ? (a) Potable water. (1) An adequate supply of potable water shall be provided in all places of employment \u00a0 Item Number 2 North wing, yard area. Employees hoisting bags of slag to the roof did not have any head protection to protect them from falling materials and debris. \u00a0 Abatement Date: Immediately upon receipt of this citation. \u00a0 Proposed Penalty: $105 Standard cited: 29 CFR 1926.100(a) ? ? 1926.100 Head Protection. ? (a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets. \u00a0 Item Number 3 ?North wing, 4th floor did not have an enclosed chute for the disposal of materials. Debris and materials were dropped more than approx. 40 feet to the ground below where a workmen was carrying a ladder.? \u00a0 Abatement Date: August 22, 1974 \u00a0 Proposed Penalty: $105 \u00a0 Standard cited: 29 CFR 1926.292(a)(sic) ? ? 1926.252 Disposal of Waste Materials. ? (a) Whenever materials are dropped more than 20 feet to any point lying outside the exterior walls of the building, an enclosed chute of wood, or equivalent material, shall be used. For the purpose of this paragraph, an enclosed chute is a slide, closed in on all sides, through which material is moved from a high place to a lower one. \u00a0 Citation Number Two (Serious) \u00a0 Item Number 1 ?St. Joseph?s Home for the Aged, 4th floor roof, North wing. Opensided floor did not have any perimeter protection whatsoever to protect the employee from falling more than approx. 40 feet to the ground below. ? Employees roofing the west wing 4th floor were working above and adjacent to the 14 parapet which enclosed the floor.? \u00a0 Abatement Date: Immediately upon receipt of this citation. \u00a0 Proposed Penalty: $700 \u00a0 Standard cited: 29 CFR 1926.500(d)(1) ? ? 1926.500 Guardrails, Handrails, and Covers. ? (d) Guarding of open-sided floors, platforms, and runways. (1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard. ? Citation Number Three (Serious) \u00a0 Item Number 1 ?St. Joseph Home for the Aged, north wing 4th floor roof. Employee holding on to the hoist support leaning from the edge of the openside of the roof, extending his right arm beyond normal reach to pull bags of slag on to the roof was not wearing personal protective equipment to prevent falling more than approx. 40 feet to the ground below.? \u00a0 Abatement Date: Immediately upon receipt of this citation. \u00a0 Proposed Penalty: $700 \u00a0 Standard cited: 29 CFR 1926.28(a) ? ? 1926.28 Personal Protective Equipment. ? (a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees. \u00a0TheRespondent?s answer does not deny the allegations of the complaint thatAbbott-Sommer, Inc. is a New York corporation that maintains an office andplace of business in New York City and engages in business activities affectingcommerce within the meaning of section 3 of the Act. At the opening of thehearing the Respondent admitted that the Commission has jurisdiction undersection 10(c) of the Act (T. 12?13).Noaffected employees or representatives of affected employees have appeared orhave elected to participate in this proceeding (T. 11?12).ISSUES AND FINDINGSAtthe time of the inspection the Respondent was engaged, as a subcontractor, ininstalling a roof on the fourth floor level of a building being constructed bya general contractor. More precisely, four employees of the Respondent werelaying tar paper under the supervision of a Mr. Boloscio, the Respondent?sforeman, as depicted in exhibit C?1, a photograph taken by the inspector whenhe was inspecting the work site on July 17, 1974.Inthis photograph Mr. Boloscio is standing with his back to the parapet at theedge of the roof while holding a piece of tar paper. One of the four employeesleaning over the edge of the roof at the far side of Mr. Boloscio is indicatedby the letter ?D? marked on exhibit C?1. The parapet (marked ?P? in exhibitC?1), around the perimeter of the wing of the roof appearing in exhibit C?1,was approximately 14 inches in height.TheRespondent?s employees were also engaged in hoisting bags of slag from theground to the roof and pulling the bags on to the roof from the hoist, asdepicted in exhibits C?4, C?5, and C?6.Thefour levels of the wing of the building where the Respondent?s employees wereworking at the time of the inspection appear in exhibits C?2, C?4, C?5, andpartially in C?3. The distance from the ground level to the parapet on the rooflevel was approximately 40 feet.Therewere six people employed by the Respondent at its temporary work site inTotowa, New Jersey when the inspection was made on July 17 and 18, 1974 (T. 20,95). Abbott-Sommer, Inc. is a successor corporation to Abbott Roofing and SheetMetal Works which had been in existence for approximately fifty years. RichardSchlessinger, the president of the Respondent, was also president of thepredecessor corporation, having succeeded his father in that position. TheRespondent is of medium size in comparison with other companies engaged insimilar activities, and the gross business for 1974 averaged approximatelythree million dollars (T. 148, 160).Theinspector testified that he did not give the Respondent any credit for goodfaith because abatement of the conditions cited was not implemented while hewas at the work site, and it was apparent to him that the Respondent did nothave a safety program. In evaluating good faith, he said he especially tookinto consideration the statements made by foreman Boloscio concerning thegeneral contractor?s responsibilities for the alleged violations and theemployee?s responsibility to supply potable water for their own use (T. 68,92?95).Thestatements Mr. Boloscio made to the inspector at the time of the inspection shouldbe considered in evaluating the Respondent?s good faith. On the other hand, thecredible testimony of Mr. Schlessinger requires that these statements,particularly concerning the potable water, not be accepted as the sole criteriain assessing the Respondent?s good faith. The evidence does not sustain afinding that the Respondent was devoid of good faith.TheRespondent had no history of previous violation of the Act (T.96).CitationNumber One (Nonserious)ItemNo. 1?Itis alleged that the Respondent did not supply any potable water for the fouremployees and foreman on the roof as pictured in exhibit C?1. The citedstandard requires that an adequate supply of potable water shall be provided inall places of employment.Whenthe inspector inquired concerning the availability of potable water, he wasinformed by Mr. Boloscio that it was the employees? responsibility to providetheir own drinking water. The inspector observed a thermos container on theroof where the employees were working, but testified that he would not saywhether the thermos belonged to the Respondent or an employee. The foreman hadinformed him that the employees brought their own drinking water in a containerto the work site.Althoughthe inspector did not ascertain the capacity of this thermos, he estimated itto be about one or two quarts, and said that it did not provide an adequatesupply of water for the employees working on the roof because the temperaturewas in the ?90?s? and the work was strenuous (T. 68?74, 92, 102). The inspectorwas aware of a five gallon water cooler in the general contractor?s shantywhich he said was not available to the employees at the work site (T. 103,108).Mr.Schlessinger, the president of Abbott-Sommer, Inc. testified that the drinkingwater in the general contractor?s shanty was available to the Respondent?semployees. He stated that the Respondent had also provided a thermos containerof a gallon capacity for the employees which was filled and refilled withdrinking water from the water cooler in the general contractor?s shanty (T.151?152, 160?161).Itis concluded that the substantial evidence of record does not sustain a findingthat the Respondent did not supply any potable water to the employees workingon the roof at the time of the inspection or that the amount of drinking watersupplied was not adequate. The cited standard was not violated as alleged inthis item of the citation.ItemNo. 2?Inthis item it is alleged that employees hoisting bags of slag to the roof in theyard area adjacent to the north wing of the building did not have any headprotection to protect them from falling materials and debris. The citedstandard [29 CFR 1926.100(a)] requires that employees be protected byprotective helmets when working in areas where there is a possible danger ofhead injury from falling objects.Twoof three employees of the Respondent in the area where bags of slag were beinghoisted from the ground to the roof were not wearing hard hats. The twoemployees who were not wearing hard hats were exposed to the hazard of the bagsof slag falling (T. 75?82, 108?110, 122; Exhibits C?4, C?5, C?6).Mr.Schlessinger testified that the Respondent?s employees at this work site weresupplied with hard hats and foreman Boloscio had been given four or five hardhats prior to going out on the job site about a week and a half prior to July17, 1974 (T. 152?153, 162).Itis concluded that the Respondent was in violation of the cited standard asalleged in the citation. The time for the abatement of this violation set forthin the citation was reasonable. The gravity[6]of this violation was not high and in applying the other criteria of section17(j)[7]of the Act it is determined that $50 is an appropriate penalty for thisviolation of the cited standard.ItemNo. 3?Itis alleged in the description of this violation that there was no enclosedchute from the 4th floor of the north wing of the building to the ground below,a distance of approximately 40 feet; and that debris and materials were droppedover the exterior wall of the building from the 4th floor roof to the groundbelow where a workman was carrying a ladder (Exhibit C?3). The standard 29 CFR1926.252(a)[8] alleged to have beenviolated requires that an enclosed chute be used whenever materials are droppedmore than 20 feet to any point lying outside the exterior walls of a building.Theinspector observed an employee throwing debris from the 4th floor roof to theground outside the exterior wall of the north wing of the building. At the timeof the inspection there was no enclosed chute at this location for the disposalof debris. The inspector identified this area of the ground as a passagewayleading into the north wing of the building which was used by workmen includingthe Respondent?s employees. A workman, wearing a yellow hard hat and carrying aladder, was walking in this ground area at the time the inspector observed thedebris being thrown over the side of the roof. The inspector did not determinewhether this workman was an employee of the Respondent (T. 36?68, 101, 153;Exhibits C?1, C?2, C?3).TheRespondent contends that the responsibility for installing the enclosed chuterested with the general contractor (J. R. Stevenson) and not with theRespondent who was a subcontractor. The general contractor did install anenclosed chute at this location subsequent to the inspection (T. 115?116, 120,123?129, 151).Itis concluded that the employees of the Respondent had access to the ground areaon which debris was thrown from the roof. This was used as a passageway ingaining access to the 4th floor roof area where these employees were workingand as a result they were exposed to the hazard of falling debris. Although itis not known whether the workman carrying the ladder in exhibit C?3 is anemployee of the Respondent, the Complainant need only show that the area of thehazard was accessible to employees of the Respondent or other employees at thework site[9].Thecontention of the Respondent that it is not responsible for the violation isrejected. There is no showing that its status as a subcontractor prevented itfrom erecting an enclosed chute for the disposal of debris. A subcontractor isnot relieved of responsibility for compliance with the Act by the contractor?soverall responsibility. If the required protection is not provided by thecontractor, then the subcontractor must provide it or stop work until it isprovided by the contractor.TheRespondent is found to be in violation of the standard as alleged in this item.The abatement period of the citation is reasonable. It is concluded that $75 isan appropriate penalty for this violation under the criteria of section 17(j)of the Act.CitationNumber Two (Serious)Itis alleged that the open-sided 4th floor roof on the north wing of the buildingdid not have any perimeter protection to prevent the employees who were roofingadjacent to the 14 inch high parapet of the roof from falling more than 40 feetto the ground below. The standard cited [29 CFR 1926.500(d)(1)] requires thatopen-sided floors, platforms, and runways be guarded as set forth in thestandard.Thisstandard is applicable to the fourth floor flat roof where four employees ofthe Respondent were laying tar paper at the time of the inspection[10].The14 inch high parapet, which is marked with a ?P? on exhibit C?1, was the onlyenclosure around the perimeter of the fourth floor roof level. One of theemployees was leaning over the edge of the roof while standing with one foot onthe parapet and one foot on the floor of the roof as indicated by the mark ?D?on exhibit C?1. Other employees were working with their backs within one footof the edge of the roof. The employees were not wearing safety belts or anyother type of personal protective equipment for the purpose of preventing themfrom accidentally falling off the edge of the roof to the ground, which wasapproximately 40 feet below. The 14 inch high parapet enclosing the perimeterof the roof did not afford any protection to the employees for the purpose ofpreventing accidental falls over the edge of the roof (T. 22?35, 119?120;Exhibits C?1, C?2, C?5).Mr.Schlessinger testified that there were rail sockets 5 or 6 feet inside the 14inch parapet enclosure which were intended for the purpose of installing afence after the work was completed (Exhibit C?1). He said the fence had notbeen installed at the time of the inspection because it was necessary to flashthe parapet walls and bring the roofing out along the perimeter (T. 153?154,163)Ifa fence had been installed at the location of these rail sockets, it would nothave protected the employees who were flashing the parapet walls and roofing inthe area between these rail sockets and the parapet. There is no showing inthis case that guarding of the perimeter of the fourth floor roof in compliancewith the cited standard would have created a greater hazard for the employeesworking on the roof or would have prevented them from continuing their roofingactivities.Itis concluded that the Respondent was in violation of the cited standard asalleged in the citation. This was a serious violation within the meaning ofsection 17(k) of the Act[11].The citation abatement time for this violation was reasonable. In applying thecriteria of section 17(j) of the Act, it is determined that $400 is anappropriate penalty for this violation.CitationNumber Three (Serious)Itis alleged that an employee was not wearing personal protective equipment toprevent him falling from the fourth floor roof to the ground while leaning overthe edge of the roof to pull bags of slag on to the roof (Exhibit C?6). Thecited standard [29 CFR 1926.28(a)] requires that employees wear appropriatepersonal protective equipment where there is an exposure to hazardousconditions. The employer is charged in the standard with the responsibility ofrequiring the employee to wear such equipment.Theemployee appearing in exhibit C?6 was exposed to the hazard of falling to theground below while leaning over the edge of the roof for the purpose of pullingthe bag of slag on to the roof. He was not wearing any protective equipment toprevent him from accidentally falling. The distance from the parapet, on whichthe left foot of the employee was resting, to the ground below wasapproximately 40 feet; and there was nothing which would have prevented thisemployee from falling to the ground if he had lost his left hand grasp on thevertical upright support of the hoist (T. 83?87, 91, 93, 110?113; Exhibit C?5,C?6).Thereis credible and substantial evidence in the record to support a finding thatthis employee could have been protected from an accidental fall to the groundif he had been wearing personal protective equipment in the form of a safetybelt with a lanyard about 6 feet long attached to the hoist structure or asecured post on the roof. This safety belt and lanyard would not create atripping hazard or interfere with stability of the hoist if that structure hadbeen adequately secured to the roof. The safety belt and lanyard would not haveprevented the employee from handling the bags of slag although it would haveslowed him down in his work performance (T. 134?144, 155?160, 163?164).Itis concluded that the Respondent was in violation of the cited standard, andthat this violation was of a serious nature as provided in section 17(k) of theAct. The citation abatement time for this violation was reasonable. Consideringthe criteria of section 17(j) of the Act, it is determined that $400 is anappropriate penalty for this violation.CONCLUSIONS OF LAW1.The Respondent, Abbott-Sommer, Inc., was at all times material to thisproceeding an employer engaged in business affecting interstate commerce withinthe meaning of section 3 of the Act.2.The Occupational Safety and Health Review Commission has jurisdiction over theparties and the subject matter of this proceeding as provided in section 10 ofthe Act.3.The place of employment maintained by the Respondent at Totowa, New Jersey wasinspected by an authorized employee of the Secretary of Labor on July 17 and18, 1974 in accordance with section 8 of the Act.4.The Respondent did not violate 29 CFR 1926.51(a)(1) as charged in item No. 1 ofcitation number one and consequently was not in violation of section 5(a)(2) ofthe Act in this instance.5.The Respondent was in violation of section 5(a)(2) of the Act as a result ofnot being in compliance with the following standards promulgated by theSecretary of Labor as charged in the citations issued to the Respondent onAugust 1, 1974:Citation NumberOne (Nonserious):ItemNo. 2?29 CFR 1926.100(a)ItemNo. 3?29 CFR 1926.252(a)\u00a0Citation NumberTwo (Serious):29CFR 1926.500(d)(1)\u00a0Citation NumberThree (Serious):29CFR 1926.28(a)\u00a06.Appropriate civil penalties pursuant to the provisions of section 17(j) of theAct are assessed as follows for these violations:Citation NumberOne:ItemNo. 2?$50??????????? Item No. 3?75?Citation NumberTwo?$400?Citation NumberThree?$400\u00a0ORDERBased on the foregoing findings of fact and conclusions oflaw, it is ORDER:1.That Item No. 1 of Citation Number One be, and is hereby vacated.2.That Items Nos. 2 and 3 of Citation Number One be, and are hereby affirmed.3.That Citations Numbered Two and Three be, and are hereby affirmed.4.That the penalty of $35 proposed for the violation alleged in Item No. 1 ofCitation Number One be, and is hereby vacated.5.That the penalties proposed for Items Nos. 2 and 3 of Citation Number One andfor Citations Number Two and Three be, and are hereby vacated; and that civilpenalties for these violations be and are hereby assessed as follows:Citation NumberOne:ItemNo. 2?$50ItemNo. 3?75?Citation NumberTwo?$400?Citation NumberThree?$400??Dated: September 4, 1975Seattle,WashingtonTHOMAS J. DONEGANJudge[1]That standard provides in pertinent part that:?A catch platformshall be installed below the working area of roofs more than 16 feet from theground to eaves with a slope greater than 4 inches in 12 inches without aparapet.?\u00a0[2]The roof in this case would also be exempt under 29 C.F.R. 1926.451(u)(3)because it had a parapet.[3]See, e.g., Secretary v. R. H. Bishop Co., 8 OSAHRC 930 (1974).\u00a0[4]This standard provides:?Whenever materialsare dropped more than 20 feet to any point lying outside the exterior walls ofthe building, an enclosed chute of wood, or equivalent material, shall be used.For the purpose of this paragraph, an enclosed chute is a slide, closed in onall sides, through which material is moved from a high place to a lower one.?\u00a0[5]Respondent also defended against this charge on the grounds that complainanthad failed to show that employees of respondent were exposed to the hazard offalling debris since the compliance officer had not determined if a workman heobserved in the area of the hazard was an employee of respondent. The Judgerejected this defense, noting that under the rule of Brennan v. OSAHRC andUnderhill Construction Corporation, 513 F.2d 1032 (2nd Cir. 1975),complainant need only show that the area of the hazard was accessible toemployees of the cited employer or those of other employers engaged in a commonundertaking?a showing that was made in this case. The ruling in Underhill,however, does not appear to be dispositive in this case. In Underhill, thecourt limited its holding to situations ?where . . . an employer is in controlof an area, and responsible for its maintenance.? Id. at 1038. Underhillemployed over 400 employees at the worksite inspected. Although it was asubcontractor, the court noted that ?it had considerable control over andresponsibility for the work areas at the building site.? Id. at 1033, n.1. Respondent in this case had only a handful of employees at the worksiteinspected. Moreover, the only evidence in the record on the issue ofresponsibility for installing a chute for debris indicates that the generalcontractor, and not respondent, was responsible therefor.[6]Examples of some of the factors that are considered in determining the degreeof gravity of the violation are: number of employees exposed to risk of injury;duration of employee exposure; precautions taken against injury, if any; and,degree of probability of occurrence of an injury.[7] Section 17(j)provides: ?The Commissionshall have authority to assess all civil penalties provided in this section,giving due consideration to the appropriateness of the penalty with respect tothe size of the business of the employer being charged, the gravity of theviolation, the good faith of the employer, and the history of previousviolations.?\u00a0[8]This standard was erroneously identified in item 2 of citation number one as 29CFR 1926.292(a). The complaint correctly identifies the standard as 29 CFR1926.252(a). There was no issue raised and there is no showing that theRespondent was misled or prejudiced by this error (T. 38).[9]See: Secretary v. Dic-Underhill, A Joint Venture, 7 OSAHRC 134 (RC1974), 513 F. 2d 1032 (2nd Cir. 1975).\u00a0[10]See: Secretary v. S.D. Mullins Company, Inc. and Diamond Roofing Company,Inc., 4 OSAHRC 1415 (RC 1973).[11]Section 17(k) provides:For purposes of thissection, serious violation shall be deemed to exist in a place of employment ifthere is a substantial probability that death or serious physical harm couldresult from a condition which exists, or from one or more practices, means,methods, operations, or processes which have been adopted or are in use, insuch place of employment unless the employer did not, and could not with theexercise of reasonable diligence, know of the presence of the violation.”