“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 14741, 14794, 14809, 15032 BAXTER ELECTRIC COMPANY, WENTZ PLUMBING AND HEATING, TRI SALES ASSOCIATES, H.H. ROBERTSON \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 \u00a0February18, 1977DECISION?Before BARNAKO, Chairman; MORAN and CLEARY,Commissioners.??????????? Thiscase is before the Commission pursuant to a suasponte order for review.1 The parties have filed no objections to theAdministrative Law Judge?s decision, either by way of petitions fordiscretionary review or response to the order for review. Accordingly, therehas been no appeal to the Commission, and no party has otherwise expresseddissatisfaction with the Administrative Law Judge?s decision.??????????? Inthese circumstances, the Commission declines to pass upon, modify or change theJudge?s decision in the absence of compelling public interest. Abbott-Sommer,Inc., 3 BNA OSHC 2032, 1975 76 CCH OSHD para.20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975 76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone RoofingCo., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order forreview in this case describes no compelling public interest issue.??????????? TheJudge?s decision is accorded the significance of an unreviewed Judge?sdecision. Leone Constr. Co., 3 BNA OSHC 1979, 1975 76 CCH OSHD para. 20,387 (No. 4090, 1976).?It is ORDERED that the decision be affirmed.?Dated: FEB 18, 1977?FOR THE COMMISSION:?William S. McLaughlinExecutive Secretary(SEAL)?MORAN, Commissioner, Concurring:??????????? Iwould affirm the Judge?s decision for the reasons set forth in his decisionwhich is attached hereto as Appendix A. For the reasons expressed in myseparate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC DocketNo. 14046, Dec. 20, 1976, I disagree with the majority?s view regarding thesignificance of decisions rendered by Review Commission Judges.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 14741, 14794, 14809, 15032 BAXTER ELECTRIC COMPANY, WENTZ PLUMBING AND HEATING, TRI SALES ASSOCIATES, H.H. ROBERTSON \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 \u00a0July 13, 1976?DECISION AND ORDERAPPEARANCES:RICHARD C. SCOTT, Esquire, United StatesDepartment of Labor, Office of the Solicitor, Kansas, City, Missouri For theComplainant\u00a0DEAN G. KRATZ, Esquire, McGrath, North,O?Malley, Kratz, Dwyer, O?Leary & Martin P. C., Omaha, Nebraska For theRespondents, Olson Construction Company, Wentz Plumbing and Heating, and H. H.Robertson Company\u00a0MR. WARD F. BAXTER, President, David A.Baxter and Sons, Inc., Omaha, Nebraska, For the Respondent, Baxter ElectricCompany\u00a0MR. LAWRENCE D. FELDHACKET, President, TriSales Associates, Ralston, Nebraska, For the Respondent, Tri Sales Associates?STATEMENT OF CASEVernon Riehl, Judge, OSHRC??????????? This isa proceeding pursuant to section 10 of the Occupational Safety and Health Actof 1970 contesting citations issued by the complainant against the respondentsunder the authority vested in the complainant by section 9(a) of that Act. Thecitations alleged that an inspection of a workplace under the operation andcontrol of the respondents revealed the existence of workplace conditions thatviolated section 5(a)(2) of the Act for the reason thatthese conditions failed to comply with certain occupational safety and healthstandards promulgated by the Secretary of Labor pursuant to section 6 thereof.??????????? TheCitations allege that the violations resulted from a failure to comply withstandards promulgated by publication in the Federal Register.??????????? Adescription of the alleged violations contained in said citation states:Secretary of Labor v. Olson ConstructionCompany? OSHRC Docket 14683? Citation Number 1, Nonserious Violation?Item 1, 29 CFR 1926.500(d)(2)?(North Side of Structure) Main accessrunway to the interior of the structure which was located 18 above the adjacentlevel had 89? of its east side unprotected by a guardrail and 366? of its westside lacking an intermediate railing.?Item 2, 29 CFR 1926.500(b)(8)?(a) (Interior of Structure) Two 7 1\/2?diameter floor holes, one located adjacent to the northwest and one locatedadjacent to the northeast east stairways on floors 1 through 6, were notprovided with required covers or guards.?(b) (Interior of Structure) Twenty-fourinch by 7 3\/4? floorholes located on east side ofeast mechanical shaft on floors 1 through 6 were not provided with requiredcover or guards.?Item 3, 29 CFR 1926.501(f)?(Interior of Structure) Three stairways,center, southeast and northwest, which ran from the basement to the sixth floorwere of the hollow pan tread design and were not filled with concrete or othermaterial.?? Citation Number 2, Serious Violation?Item 1, 29 CFR 1926.500(b)(1)?(Interior of Structure) The followingfloor openings lacked or were not provided with adequate guardrails: 1. The 40x 94? south elevator shaftwaylacked guardrails from the first through the sixth floors. 2. The northmechanical shaftway between the second and sixthfloors had guardrails rails built of 2 x 4?s which had uprights spaced 126?apart on two of its sides and 96? on the other two sides. 3. The southmechanical shaftway which measured 136?by 96? was not protected by a cover or guardrail on floors 3 through 6.?? Citation Number 3, Serious Violation?Item 1, 29 CFR 1926.500(c)(1)(i)?(a) (Interior of Structure) Southeaststairway was open on the exterior side. The opening measured 22 in width andwas present from the first through the sixth floors.?(b) (Basement Area) Wall opening locatedin the north side of the south mechanical room and south side of the northmechanical room measured 52? in height, 149? in length and 63? above adjacentlevel, was not guarded.?? Citation Number 4, Serious Violation?Item 1, 29 CFR 1926.28 and 1926.104(a)?(Exterior Steel Framework of Structure)Four employees were observed working at elevated heights ranging from 30 to 60without the required protection of lifelines, safety belts and lanyards.?? Citation Number 5, Serious Violation?Item 1, 29 CFR 1926.500(d)(1)?(a) (Interior of Structure) Two hundredand seventy feet of open-sided floor on east side and approximately 140 on thenorth and south sides of floors 1?3 which were in part finished (concretepoured) and worker noted performing task below, were not equipped with requiredtoeboards.?(b) (Interior of Structure) Floors 1through 4 which consisted of permanent metal decking and\/or poured concretewere not provided with adequate protection on its open sides.?(c) (Basement Area) Open-sided floors inthe north and south sides of the area adjacent to the mechanical rooms measured67? above the next level and were 207? in length and were not guarded.?Secretary of Labor v. Baxter ElectricCompany,? OSHRC Docket 14741? Citation Number 1, Nonserious Violation?Item 1, 29 CFR 1926.500(d)(2)?(North Side of Structure) Amin accessrunway to the interior of the structure which was located 18 above the adjacentlevel had 89? of its east side unprotected by a guardrail and 366? of its westside lacking an intermediate railing.?Item 2, 29 CFR 1926.501(f)?(Interior of Structure) Three stairways,center, southeast and northwest, which ran from the basement to the sixthe floor were of the hollow pan tread design and werenor filled with concrete or other material.?Item 3, 29 CFR 1926.500(b)(8)?(a) (Interior of Structure) Two 7 1\/2?diameter floor holes, one located adjacent to the northwest and one locatedadjacent to the northeast stairways on floors one through six, were notprovided with required covers or guards.?(b) (Interior of Structure) Twenty-fourinch by 7 3\/4? floor holes located on east side of east mechanical shaft onfloors one through six were not provided with required covers or guards.?Citation Number 2, Serious Violation?Item 1, 29 CFR 1926.500(b)(1)?(Interior of Structure) The followingfloor openings lacked or were nor provided with adequate guardrails: 1. Fortyfoot by 94? south elevator shaftwaylacked guardrails from the first through the sixth floors. 2. North mechanical shaftway between the second and sixth floors had guardrailsbuilt of 2 x 4?s which has uprights spaced 136? aparton two of its sides and 9 6 ? on the other two sides. 3. South mechanical shaftway which measured 13 6 ? by96? was not protected by a cover or guardrail on floors three through six.?Citation Number 3, Serious Violation?Item 1, 29 CFR 1926.500(d)(1)?(a) (Interior of Structure)Two-hundred-seventy feet of open-sided floor on east side and approximately 140on the north and south sides of floors one through three which were in partfinished (concrete poured) and worker noted performing task below, were notequipped with required toeboards.?(b) (Interior of Structure) Floors onethrough four which consisted of permanent metal decking and\/or poured concretewere not provided with adequate protection on its open sides.?Citation Number 4, Serious Violation?Item 1, 29 CFR 1926.500(c)(1)(i)?(Interior of Structure) Southeast stairwaywas open on the exterior side. The openings measured 22 in width and werepresent from the first through the sixth floors.?Secretary of Labor v. Wentz Plumbing andHeating? OSHRC Docket 14794? Citation Number 1, Nonserious Violation?Item 1, 29 CFR 1926.500(d)(2)?(North Side of Structure) Main accessrunway to the interior of the structure which was located 18 above the adjacentlevel had 89? of its east side unprotected by a guardrail and 366? of its westside lacking an intermediate railing.?Item 2, 29 CFR 1926.500(b)(8)?(a) (Interior of Structure, First ThroughSixth Floors) Two 7?1\/2 ?? diameter floor holes, one located adjacent to thenorthwest and one located adjacent to the northeast stairways on floors onethrough six, were not provided with required covers or guards.?(b) (Interior of Structure, First ThroughSixth Floors) Twenty-four inch by 7 3\/4? floor holes located on east side ofeach mechanical shaft on floors one through six were not provided with requiredcovers or guards.?Item 3, 29 CFR 1926.501(f) (Interior ofStructure)?Three stairways, center, southeast andnorthwest, which ran from the basement to the sixth floor were of the hollowpan tread design and were not filled with concrete or other material.?Citation Number 2, Serious Violation?Item 1, 29 CFR 1926.500(b)(1)?(Interior of Structure) The followingfloor openings lacked, or were not provided with, adequate guardrails: 1. A 40x 94? south elevator shaftwaylacked guardrails from the first through the sixth floors. 2. North mechanical shaftway, between the second and sixth floors, hadguardrails built of 2 x 4?s which had uprights spaced 136? apart on two of itssides and 96? on the other two sides. 3. South mechanical shaftway,which measured 136 ? by 96?, was not protected by acover or guardrail on floors three through six. 4. (North Basement Area,Mechanical Room) A 42?? diameter sump pit which measured 7 in depth (two feetof water in the bottom) was not provided with required guard or cover.?Citation Number 3, Serious Violation?Item 1, 29 CFR 1926.500(c)(1)(i)?(a) (Interior of Structure) Southeaststairway was open on the exterior side. The openings measured 22 in width andwere present from the first through the sixth floors.?(b) (Basement Area) Wall opening, locatedin the north side of the south mechanical room an south side of the northmechanical room measured 52? in height, 149? in length and 63? above adjacentlevel, was not guarded.?Citation Number 4, Serious Violation?Item 1, 29 CFR 1926.500(d)(1)?(a) (Basement Area) Open-sided floors inthe north and south sides of the area adjacent to the mechanical rooms measured67? above the next level and were 207? in length and were not guarded.?(b) (Interior of Structure) Two hundredand seventy feet of open-sided floor on east side and approximately 140 on thenorth and south sides of floors one through three which were in part finished(concrete poured) and worker noted performing task below, were not equippedwith required toeboards.?(c) (Interior of Structure) Floors onethrough four which consisted of permanent metal decking and\/or poured concretewere not provided with adequate protection on its open sides.?Secretary of Labor v. (Tri SalesAssociates? OSHRC Docket 14809? Citation Number 1, Nonserious Violation?Item 1, 29 CFR 1926.500(d)(2)?(North Side of Structure) Main accessrunway to the interior of the structure which was located 18 above the adjacentlevel had 89? of its east side unprotected by a guardrail and 366? of its westside lacking an intermediate railing.?Item 2, 29 CFR 1926.500(b)(8)?(a) (Interior of Structure, 1st?6th Floor)Seven and one-half inch diameter floor holes, one located adjacent to thenorthwest and one located adjacent to the northeast stairways on floors onethrough six were not provided with required covers or guards.?(b) (Interior of Structure, 1st?6th Floor)Twenty-four inch by seven and three-fourths inch floor holes located on eastside of east mechanical shaft on floors one through six were not provided withrequired covers or guards.?Item 3, 29 CFR 1926.501(f) (Interior ofStructure)?Three stairways, center, southeast andnorthwest, which ran from the basement to the sixth floor were of the hollowpan tread design and were not filled with concrete or other material.?Citation Number 2, Serious Violation?Item 1, 29 CFR 1926.500(b)(1)?(Interior of Structure) The followingfloor openings lacked or were not provided with adequate guardrails: 1. Southelevator shaftway, 40 x 94 ??, lacked guardrails fromthe first through the sixth floors. 2. North mechanical shaftwaybetween the second and sixth floor had guardrails built of two-by-fours whichhad uprights spaced 136? apart on two of its sides and96? on the other two sides. 3. South mechanical shaftwaywhich measured 136? by 96? was not protected by acover or guardrail on floors three through six.? Citation Number 3, Serious Violation?Item 1, 29 CFR 1926.500(d)(1)?(a) (Interior of Structure) Twohundred-seventy feet of open-sided floor on the east side and approximately 140on the north and south sides of floors one through three, which were in partfinished (concrete poured) and worker noted performing task below, were notequipped with required toeboards.?(b) (Interior of Structure) Floors onethrough four which consisted of permanent metal decking and\/or poured concretewere not provided with adequate protection on its open sides.?Citation Number 4, Serious Violation?Item 1, 29 CFR 1926.500(c)(1)(i)??(Interior of Structure) Southeast stairway wasopen on the exterior side. The openings measured 22 in width and were presentfrom the first through the sixth floor.? Secretary of Labor v. H. H. RobertsonCompany? OSHRC Docket 15032? Citation Number 1, Nonserious Violation?Item 1, 29 CFR 1926.500(d)(2)?(North Side of Structure) Main accessrunway to the interior of the structure which was located 18 above the adjacentlevel had 89? of its east side unprotected by a guardrail and 366? of its westside lacking an intermediate railing.?Item 2, 29 CFR 1926.500(b)(8)?(a) (Interior of Structure) Two 7?1\/2?diameter floor holes, one located adjacent to the northwest and one locatedadjacent to the northeast stairways on floors one through six were not providedwith required covers of guards.?(b) (Interior of Structure) Twenty-fourinch by seven and three-fourths inch floor holes located on east side of eastmechanical shaft on floors one through six were not provided with requiredcover or guards.? Citaion Number 2, SeriousViolation?Item 1, 29 CFR 1926.500(b)(1)?(Interior of Structure) The followingfloor openings lacked or were not provided with adequate guardrails: 1. Southelevator shaftway, 40 x 94 ??, lacked guardrails fromthe first through the sixth floors. 2. North mechanical shaftwaybetween the second and sixth floors had guardrails built of two-by-fours whichhad uprights spaced 136? apart on two of its sides and96? on the other two sides. 3. South mechanical shaftwaywhich measured 136? by 96? was not protected by acover or guardrail on floors three through six.? Citation Number 3, Serious Violation?Item 1, 29 CFR 1926.500(c)(1)(i)?(Interior of Building) Southeast stairwaywas open on the exterior side. The openings measured 22 in width and werepresent from the first through the sixth floors.?Citation Number 4, Serious Violation?Item 1, 29 CFR 1926.500(d)(1)?(a) (Interior of Structure) Twohundred-seventy feet of open-sided floor on the east side and approximately 140on the north and south sides of floors one through three, which were in partfinished (concrete poured) and worker noted performing task below, were notequipped with required toeboards.?(b) (Interior of Structure) Floors onethrough four, which consisted of permanent metal decking and\/or poured concretewere not provided with adequate protection on its open sides.???????????? Ahearing was held November 18, 19, 1975, in Lincoln, Nebraska.DISCUSSION??????????? Allof the cases arose out of a health and safety inspection of the constructionsite of the State Office Building in Lincoln, Nebraska. The respondent, OlsonConstruction Company, was the general contractor at the jobsite. The otherrespondents herein had limited functions: Wentz Plumbing and Heating, theplumbing; H. H. Robertson Company, the steel decking work; Baxter ElectricCompany, the electrical work, and Tri Sales Associates, the stud welding.??????????? Atthe time of the inspection at the worksite, the compliance officer observed arunway without standard guardrails which led into the interior of the structureon the north side. This runway was 18 feet above the adjacent level (T. 19).??????????? Hefound a floor opening located adjacent to the northwest stairway and a floorhole opening located adjacent to the northeast stairway on each floor, onethrough six. The holes were not barricaded or capped or protected in anyway,and they measured 7?1\/2 inches in diameter (T. 20). Further examination of theinterior of the structure revealed a floor hole opening, 24 inches by 7?3\/4inches, located on the east side of each mechanical shaftwayon floors one through six, which was also uncovered and unprotected (T. 22).??????????? Constructionhad progressed to the point where three stairways in the building werecompleted enough to provide accessibility. The stairways were located in thesoutheast corner, the northeast corner and the northwest corner. The stairswere of hollow-pan design, and were not filled, constituting a tripping hazard(T. 22). None of the stairways were barricaded, although one stairway had asign on it that said ?keep out? (T. 23).??????????? Theabove-described violations were cited by the compliance officer as nonseriousviolations due to the hazards involved.??????????? Afloor opening is one which is large enough to allow an employee to fall throughthe opening. In contrast, a floor hole opening is one which constitutes only atripping hazard. In all of the openings found, there was either no protectionor inadequate protection.??????????? Fromthe first through the sixth floor, the south elevator shaft was open. The shaftmeasured 40 feet in length by 9 feet 4 inches in width (T. 25). The northelevator shaft was protected (T. 26). The distance from the first floor openingto the level below was approximately 15 feet. The distance from the sixth floorwas 60 to 70 feet (T. 26).??????????? TheCompliance officer found that the north mechanical shaftwaybetween the second and sixth floor had guardrails built with 2 by 4?s; however,the uprights for the guardrails were spaced 13 feet 6 inches apart on two sidesand 9 feet 6 inches apart on the other two sides. The OSHA standard requires thatthey be spaced a distance no greater than 8 feet (T. 25). if these uprightswere spaced too far apart, they would not support the required two hundredpounds of lateral movement required by the standard. Moreover having such aguardrail, could give an employee a false sense of security (T. 27).??????????? Thecompliance officer found that the south mechanical shaftwayhad no protection whatsoever from the third to the sixth floor by either cover,barricade or guardrail (T. 26). These particular mechanical shaftwaysmeasured 13 feet 6 inches by 9 feet 6 inches (T. 26). If an employee fellthrough one of the holes from any of the floors, he would suffer death orserious physical harm (T. 29).??????????? Thecompliance officer also found exterior wall openings at each landing of thesoutheast stairway on each floor from the first through the sixth. These wallopenings were not equipped with guardrails (T. 30). The lack of guardrailsaggravated the tripping hazard caused by the hollow-pan stairways in that anemployee who tripped would not fall merely to the bottom of the stairs butprobably through the wall opening (T. 31).??????????? Thedistance such an employee could fall would vary from about 18 to 70 feet (T.31). The existence of a standard guardrail would have reduced the falling hazard(T. 31). If an employee fell through the open-sided wall from the first throughthe fourth floor, he would probably suffer serious physical harm such as brokenbones; but an employee falling from anything higher than the fourth floor wouldprobably suffer death (T. 32).??????????? Thecompliance officer stated that he observed four employees of the OlsonConstruction Company working at elevated heights ranging from 30 to 60 feetwithout safety belts or lanyards. There was no protection furnished such assafety nets, catch platforms, or temporary floors, except in some areas (T. 32,33). The employees who were working in the southwest area were exposed to thedanger of falling (T. 33, 34).??????????? Themanner of the installation of the steel cable as a guardrail in the instantcase constituted an increased hazard because of the potential for lateralmovement (T. 39). There was no midrail, and the wirewas only 30 inches high at the midpoint which in itself would almost constitutea tripping hazard (T. 39). An employee who fell would certainly suffer seriousphysical harm or death, even from the first floor (T. 39).??????????? Inthe basement area, the compliance officer found open-sided floors in the northand south sides of the area adjacent to the mechanical rooms which measured 6feet 7 inches to the lower adjacent level and these openings were not providedwith guards of any kind (T. 40). If an employee fell through these openings, hewould suffer only minor injuries, but this violation was included in theserious violations because of grouping (T. 42). The compliance officer alsofound wall openings located in the north side of the south mechanical room andthe south side of the north mechanical room, which were 6 feet 3 inches abovethe adjacent level. These openings were unguarded (T. 42, 43). Here again, anemployee would probably suffer only minor injuries from such a fall, but thisviolation was included as a serious violation because of grouping (T. 43).??????????? Thefacts establish that all the violations of the standards as alleged in thecitations existed in at least some degree.??????????? Weare confronted with the question of exposure or accessibility of employees tothese hazards.??????????? Respondent,in its brief, states that the inspection of the project on August 8, 1975 (T.13) was made because of a complaint filed against the employer. Respondent saidthe complaint was filed by Jerry Claycomb, jobsteward of the ironworkers union, who apparently had a grudge against Olsonbecause of Olson?s refusal to allow the ironworkers a coffee break (T. 181,234).??????????? Theevidence would indicate that there was some friction over the coffee break butwe do not feel it is a material factor in the instant case.??????????? Withsome minor exceptions, all the respondents on the project received exactly thesame citations. This is illustrated by the following: Violation Brief Description Olsen Wentz Robertson Tri-Sales Baxter Nonserious IV (1) Standard railing (runway) \u00a0 29 CFR 1926.500(d)(2) same same same same IV(2)(a) floor hole cover (N.W.) \u00a0 1952.500(b)(8) same same same same IV(2)(b) floor hole cover (east) \u00a0 1926.500(b)(8) same same same same IV(3) fill stairways w\/ concrete \u00a0 1926.501(f) same same same same Serious V(1) floor openings \u00a0 1926.500(b)(1) same same same same V(2)(a) \u00a0 wall openings \u00a0 1926.500(c)(1)(i) same same same same V(2)(b) openings (basement) \u00a0 1926.500(c)(1)(i) same same same same V(3) safety belts, etc. (25 ft.) \u00a0 1925.501(a) same same same same V(4)(a) toeboard for railing \u00a0 1926.500(d)(1) same V(3)(a) same same same V(4)(c) guardrails (basement) 1926.500(d)(1) same V(3)(a) \u00a0 same same same \u00a0??????????? It isrespondent?s contention that Compliance Officer Adams inspected the project,determined the violations, and then applied them to each and every contractorwhom he had been told was performing work on the project, without regard towhether any of the contractors? employees were or were not exposed to thehazard.??????????? Thishas been a most difficult case to decide. The difficulty being that there is inour mind very serious credibility gaps on both the part of the complainant?scase and that of the respondents. The evidence is very conflicting. Thecomplainant has a borderline case of both access and exposure. We are vacatinga number of citations partly because of lack of credibility on part of thecomplainant?s case and failure on part of the complainant to prove the casesagainst the respondents by a preponderance of credible testimony.??????????? Wewill not set out in detail all of the testimony listing the various credibilitygaps. However, we cite the following testimony as illustrative of some of theconflicts in the testimony which required us to make a decision as to whichtestimony was credible:Q. O. K. Now exactly where were theseemployees working in the building??A. (By the Compliance Officer) In thesouth, southwest area which was adjacent to the work sheds and all on thesoutheast corner of the building, I would say approximately 20, 30, maybe 15 to20 feet from the west wall.?Q. …do you know what they were doing??A. No.?Q. Do you know whose employees they were??A. These ones that I am referring to herewould be Olson employees. These are the ones that are on his??Q. How did you find out they were Olson?semployees??A. Through inquiry.?Q. Of whom??A. Of the employer as well as the employeerepresentatives who were with me.?Q. Did you have an Olson employerrepresentative with you??A. Yes.???????????? Lateron we have the following testimony from Mr. Nun:Q. (By Mr. Kratz) Mr. Nun, the work thatyour company was doing on this project was the exterior framework of thestructure, is that correct??A. It was the structural steel, yes, andthe precast.?Q. And the precast.?And I guess you said on the date of thisinspection this was being done in the southwest corner. Would that be thesouthwest quadrant of the project??A. Yes.?Q. And Olson did not have any employeesdoing the exterior steel framwork, did they??A. No, sir.???????????? Mr.Jerry Claycomb, employed by the Walt Brewer ConstructionCompany as an ironworker, testified as follows:Q. Are you a member of the Ironworkers?Craft Union??A. Yes.?Q. By whom were you employed on August 8,1975??A. Allied Steel.?Q. What was your job with Allied Steel??A. I was job steward.?(T. 172)\u00a0??????????? Therecord indicates that Allied Steel Erectors, who was the employer of Jerry Claycomb, apparently received no citation whatsoever forthis violation and Olson was incorrectly cited.OLSON CONSTRUCTION COMPANY, OSHRC DOCKET14683FINDINGS OF FACT??????????? 1.Olson Construction Company, is a corporation with a principal place of businessin Lincoln, Nebraska, where it was the general contractor on a constructionproject.???????????? 2. Atthe time of the inspection, respondent employed approximately 23 employees atthe work site.??????????? 3.Respondent?s worksite was inspected on August 8, 1975, by an authorizedrepresentative of the Secretary. As a result of this inspection, respondent wasissued a citation for other than serious violation, four citations for seriousviolations, and a notification of proposed penalties on August 19, 1975.Respondent timely filed a notice of contest to the aforesaid citations andnotification of proposed penalties pursuant to section 10(c) of the Act.??????????? 4.August 8, 1975, the access runway to the north side of the building worksite,which was more than 4 feet above the adjacent ground level, was not guardedwith a standard guardrailing exposing respondent?semployees to the hazard of falling from said runway.??????????? 5.The inspection of August 8, 1975, found three floor openings: one located byeach of the north stairways and one located on the east side of the eastmechanical shaft. They were not covered or otherwise guarded exposingrespondent?s employees to the hazard of stepping into said holes and tripping.??????????? 6. Onthe date of the inspection, the hollow-pan-type treads on three stairways werenot filled exposing respondent?s employees to the hazard of tripping.??????????? 7. OnAugust 8, 1975, inspection revealed that there were certain floor openings notguarded by a standard railing, toeboards or cover, to wit: 1) the 40 foot by 9foot 4 inch south elevator shaftway from the firstthrough the sixth floor, 2) the north mechanical shaftwaybetween the second and sixth floor, and 3) the south mechanical shaftway from the third through the sixth floor. All ofthese openings exposed respondent?s employees to falls from heights rangingfrom 12 feet to over 60 feet.??????????? 8.There was a substantial probability that, as a result of a fall from suchheight, one of respondent?s employees could suffer death or serious physicalharm. Respondent knew or could have known with the exercise of reasonablediligence of the presence of the violation.??????????? 9.The compliance officer?s inspection of August 8, 1975, revealed the existenceof wall openings for the southeast stairway which were not guarded with astandard guardrail from the first through the sixth floor, and, openingslocated in the north side of the south mechanical room and the south side ofthe north mechanical room, in the basement area, where there was a drop of morethan 4 feet. The bottom of the opening was less than 3 feet above the workingsurface. The height and placement of the opening in relation to the workingsurface was such that a standard guardrail would have effectively reduced thedanger of respondent?s employees falling through said wall openings (from 12 to60 feet).??????????? 10.There was a substantial probability that death or serious physical harm couldresult from a fall through the wall openings, and that respondent knew or couldhave known with the exercise of reasonable diligence of the presence of theviolation.??????????? 11.On the day of the inspection, a toeboard was notprovided for the perimeter guarding on the north, east, and south sides offloors one through three where falling materials could create a hazard toemployees working below exposing respondent?s employees to the hazard of beingstruck by dropped tools and materials.??????????? 12.On the day of the inspection, it was found that there was no standard guardrailprovided for floors 1 through four in the interior of the structure on its opensides, and open-sided floors in the basement area in the north and south sidesadjacent to the mechanical rooms. These open sides were more than 6 feet abovethe adjacent floor or ground level; thus, exposing respondent?s employees tothe hazard of falling from said open sides.??????????? 13.On the day of inspection, there existed a substantial probability that death orserious physical harm could result from falls through these open-sided floorsand respondent knew or could have known with the exercise of reasonablediligence of the presence of the violation.CONCLUSION OF LAW??????????? 1.Respondent is an employer within the meaning of section 3 of the OccupationalSafety and Health Act of 1970 and is subject to the jurisdiction of theOccupational Safety and Health Review Commission in this proceeding.??????????? 2.Respondent has violated section 5(a)(2) of the Occupational Safety and HealthAct of 1970 in that it failed to comply with the nonserious Occupational Safetyand Health Standard as set forth in citation 1, items 1, 2 and 3, (29 CFR1926.500(d)(2); (29 CFR 1926.500(b)(8), and 29 CFR 1926.501(f)).??????????? 3.Respondent has violated section 5(a)(2) of the Occupational Safety and HealthAct of 1970 in that failed to comply with 29 CFR 1926.500(b)(1), seriousviolation, as alleged in citation 2, item 1 of the serious violation.??????????? 4.Respondent has violated section 5(a)(2) of the Occupational Safety and HealthAct of 1970 in that it failed to comply with 29 CFR 1926.500(c)(1)(i) as set forth in citation number 3, item 1 of the seriousviolation.??????????? 5.Respondent has violated section 5(a)(2) of the Occupational Safety and HealthAct of 1970 in that it failed to comply with 29 CFR 1926.500(d)(1) as set forthin citation 5, item 1, of the serious violation. The violations alleged in thecitations for serious violations constitute serious violations within themeaning of section 17(k) of the Occupational Safety and Health Act of 1970.??????????? 6.The penalties proposed for the foregoing serious and nonserious violations wereappropriate with respect to the gravity of the violation, the size ofrespondent?s business, the good faith of the respondent, and respondent?shistory of previous violations.DECISION??????????? Basedon the above findings of fact and conclusions of law, it is hereby ORDEREDthat:??????????? 1.The citations and the penalties proposed for the nonserious violations areaffirmed (citation 1, items 1, 2 and 3).??????????? 2.Citation 2, item 1; citation 3, item 1 and citation 5, item 1 (seriousviolations) and their proposed penalties are affirmed.??????????? 3.Citation 4, item 1 and the proposed penalty therefor are vacatedBAXTER ELECTRIC COMPANY, OSHRC DOCKET14741DISCUSSION??????????? Thereis no credible evidence of record that any of the Baxter employees were exposedor had access, within the meaning of the standards, to any of the hazards atany of the places set forth in the serious and nonserious citations issued torespondent.FINDINGS OF FACT??????????? 1.Respondent, Baxter Electric Company, is a corporation located in Lincoln,Nebraska, and at the time of inspection was engaged as a subcontractor at aworksite at 14th and L Streets, Lincoln, Nebraska, where it was an electricalcontractor on a construction project.??????????? 2.Respondent employed approximately 23 employees at the aforesaid worksite.??????????? 3.Respondent is an employer within the meaning of the Act.??????????? 4. Asa result of an inspection, of the aforesaid worksite, by an OSHA complianceofficer on August 8, 1975, respondent was issued a citation for other thanserious violations, three citations for serious violations and a notificationof proposed penalties on August 25, 1975. On August 27, 1975, respondent timelyfiled with a representative of the Secretary a notice of intent to contest thecitations and the notification of proposed penalties therefor pursuant tosection 10(c) of the Act.??????????? 5.Jurisdiction of this proceeding is conferred upon the Commission by section10(c) of the Act.??????????? 6. OnAugust 8, 1975, the access runway to the north side of the building, which wasmore than four feet above the adjacent ground level, was not guarded with astandard guardrailing.??????????? 7. OnAugust 8, 1975, three floor hole openings, one located by each of the northstairways and one located on the east side of the east mechanical shaft, werenot covered or otherwise guarded.??????????? 8. OnAugust 8, 1975, the hollow-pan-type treads on three stairways were not filled.??????????? 9. OnAugust 8, 1975, certain floor openings were not guarded by a standard railingand toeboards or cover, to wit: 1) the 40 foot by 9 foot 4 inch south elevator shaftway from the first through the sixth floor, 2) thenorth mechanical shaftway between the second andsixth floor, and 3) the south mechanical shaftwayfrom the third through the sixth floor.??????????? 10.There is no credible evidence that any of respondent?s employees were exposedor had access to the foregoing hazards.??????????? 11.On August 8, 1975, the wall openings for the southeast stairway were notguarded with a standard guardrail from the first through the sixth floor wherethere was a drop of more than 4 feet, and the bottom of the opening was lessthan 3 feet above the working surface, and where the height and placement ofthe opening in relation to the working surface was such that a standard guardrailwould effectively reduce the danger of falling.??????????? 12.There was no credible evidence that any of respondent?s employees were exposedor had access to the hazards of the preceding paragraph.??????????? 13.On August 8, 1975, no toeboard was provided for theperimeter guarding on the north, east, and south sides of floors one throughthree where falling materials could create a hazard to employees working below.??????????? 14.On August 8, 1975, a standard guardrail was not provided for floors one throughfour in the interior of the structure on its open sides, which open sides weremore than 6 feet above the adjacent floor or ground level.??????????? 15.There is no credible evidence that any of respondent?s employees were eitherexposed or had access to the hazards as set forth in the two precedingparagraphs.CONCLUSIONS OF LAW??????????? 1.Respondent is an employer within the meaning of section 3 of the OccupationalSafety and Health Act of 1970 and is subject to the jurisdiction of theOccupational Safety and Health Review Commission in this proceeding.??????????? 2.The Secretary has failed to carry the burden of proof to show that therespondent has been in violation of the standards as set forth in the seriousand nonserious citations issued to respondent.DECISION??????????? Basedupon the above findings of fact and conclusions of law, it is hereby ORDEREDthat the citations and proposed penalties (serious and nonserious) are vacated.WENTZ PLUMBING AND HEATING, OSHRC DOCKET14794DISCUSSION??????????? Thereis no credible evidence of record that any of the Wentz employees were exposedor had access, within the meaning of the standards, to any of the hazards atany of the places set forth in the serious and nonserious citations issued torespondent.FINDINGS OF FACT??????????? 1.Respondent, Wentz Plumbing and Heating, is a corporation with a principal placeof business in Lincoln, Nebraska, and was engaged as a plumbing contractor on aconstruction project at 14th and L Streets, Lincoln, Nebraska.??????????? 2.Respondent employed approximately seven employees at its aforesaid worksite.??????????? 3.Respondent is an employer within the meaning of the Act.??????????? 4. Asa result of an inspection on August 8, 1975, by a compliance officer of OSHA,of the aforesaid worksite, respondent was issued a citation for other thanserious violations, three citations for serious violations, and notification ofproposed penalties on August 21, 1975. On September 2, 1975, respondent timelyfiled with a representative of the Secretary a notice of intent to contest thecitations and the notification of proposed penalties therefor pursuant tosection 10(c) of the Act.??????????? 5. OnAugust 8, 1975, the access runway to the north side of the building, which wasmore than 4 feet above the adjacent ground level, was not guarded with astandard guardrailing.??????????? 6. OnAugust 8, 1975, three floor hole openings, one located by each of the northstairways and one located on the east side of the east mechanical shaft, werenot covered or otherwise guarded.??????????? 7. OnAugust 8, 1975, the hollow-pan-type treads on three stairways were not filled.??????????? 8. OnAugust 8, 1975, certain floor openings were not guarded by a standard railingand toeboards or cover, to wit: 1) the 40 foot by 9 foot 4 inch south elevator shaftway from the first through the sixth floor, 2) thenorth mechanical shaftway between the second andsixth floor, and 3) the south mechanical shaftwayfrom the third through the sixth floor.??????????? 9.There is no credible evidence that any of respondent?s employees were exposedor had access to the foregoing hazards as set forth in the precedingparagraphs.??????????? 10.On August 8, 1975, the wall openings for the southeast stairway were notguarded with a standard guardrail from the first through the sixth floor andopenings located on the north side of the south mechanical room and the southside of the north mechanical room, in the basement area, where there was a dropof more than 4 feet and the bottom of the opening was less than 3 feet abovethe working surface, and where the height and placement of the opening inrelation to the working surface was such that a standard guardrail wouldeffectively reduce the danger of falling.??????????? 11.There was no credible evidence that any of respondent?s employees were exposedor had access to the hazards of the preceding paragraph.??????????? 12.On August 8, 1975, no toeboard was provided for theperimeter guarding on the north, east, and south sides of floors one throughthree where falling materials could create a hazard to employees working below.??????????? 13.On August 8, 1975, a standard guardrail was not provided for floors one throughfour in the interior of the structure on its open sides and open-sided floorsin the basement area in the north and south sides adjacent to the mechanicalrooms, which open sides were more than 6 feet above the adjacent floor orground level.??????????? 14.There is no credible evidence that any of respondent?s employees were eitherexposed or had access to the hazards as set forth in the two precedingparagraphs.CONCLUSIONS OF LAW??????????? 1.Respondent is an employer within the meaning of section 3 of the OccupationalSafety and Health Act of 1970 and is subject of the jurisdiction of theOccupational Safety and Health Review Commission in this proceeding.??????????? 2.The Secretary has failed to carry the burden of proof to show that therespondent has been in violation of the standards as set forth in the seriousand nonserious citations issued to respondent.DECISION??????????? Basedupon the above findings of fact and conclusions of law, it is hereby ORDEREDthat the citations and proposed penalties for serious and nonserious violationsare vacated.TRI SALES ASSOCIATES, OSHRC DOCKET 14809DISCUSSION??????????? Thereis no credible evidence of record that any of the Tri Sales Associatesemployees were exposed or had access, within the meaning of the standards, toany of the hazards in any of the places set forth in the serious and nonseriouscitations issued respondent.FINDINGS OF FACT??????????? 1.Respondent, Tri Sales Associates, is a corporation located in Ralston,Nebraska, and at the time of the inspection by the OSHA compliance officer wasengaged as a stud welding contractor on a construction project at 14th and LStreets, Lincoln, Nebraska.??????????? 2.Respondent employed approximately two employees at its aforesaid worksite.??????????? 3. Asa result of an inspection on August 8, 1975, by an authorized representative ofthe Secretary, of the aforesaid worksite, respondent was issued a citation forother than serious violations, three citations for serious violations, andnotification of proposed penalties on August 25, 1975. On September 9, 1975,respondent timely filed with a representative of the Secretary a notice ofintent to contest the citations and the notification of proposed penaltiestherefor pursuant to section 10(c) of the Act.??????????? 4.Jurisdiction of this proceeding is conferred upon the Commission by section10(c) of the Act.??????????? 5. OnAugust 8, 1975, the access runway to the north side of the building, which wasmore than 4 feet above the adjacent ground level, was not guarded with astandard guardrailing.??????????? 6. OnAugust 8, 1975, three floor hold openings, one located by each of the northstairways and one located on the east side of the east mechanical shaft, werenot covered or otherwise guarded.??????????? 7. OnAugust 8, 1975, the hollow-pan-type treads on three stairways were not filled.??????????? 8. OnAugust 8, 1975, certain floor openings were not guarded by a standard railingand toeboards or cover, to wit: 1) the 40 foot by 9 foot 4 inch south elevator shaftway from the first through the sixth floor, 2) thenorth mechanical shaftway between the second andsixth floor, and 3) the south mechanical shaftwayfrom the third through the sixth floor.??????????? 9.There is no credible evidence of record that any of the respondent?s employeeswere exposed or had access to the foregoing hazards as set forth in thepreceding paragraphs.??????????? 10.On August 8, 1975, no toeboard was provided for theperimeter guarding on the north, east, and sough sides of floors two and threewhere falling materials could create a hazard to employees working below.??????????? 11.On August 8, 1975, a standard guardrail was not provided for floors two andthree in the interior of the structure on its open sides, which sides were morethan 6 feet above the adjacent floor or ground level.??????????? 12.There is no credible evidence of record that any of respondent?s employees wereexposed or had access to the hazards as set forth in the preceding paragraphs.CONCLUSIONS OF LAW??????????? 1.Respondent is an employer within the meaning of section 3 of the OccupationalSafety and Health Act of 1970 and is subject to the jurisdiction of theOccupational Safety and Health Review Commission in this proceeding.?2. The Secretary has failed to carry the burden ofproof to show that the respondent has been in violation of standards as setforth in the serious and nonserious citations issued respondent.DECISION??????????? Basedupon the above findings of fact and conclusions of law, it is hereby ORDEREDthat the citations and proposed penalties (serious and nonserious) are vacated.H. H. ROBERTSON COMPANY, OSHRC DOCKET15032DISCUSSION??????????? Thereis no credible evidence of record of any H. H. Robertson employees were exposedor had access, within the meaning of the standards, to any of the hazards atany of the places set forth in the serious and nonserious citations issued torespondent.FINDINGS OF FACT??????????? 1.Respondent, H. H. Robertson Company, is a corporation located in Pittsburgh,Pennsylvania. At the date of inspection by a compliance officer of OSHA, it wasengaged as a steel decking contractor on a construction project at 14th and LStreets, Lincoln, Nebraska.??????????? 2.Respondent employed approximately five employees at its aforesaid worksite.??????????? 3.Respondent is an employer within the meaning of the Act.??????????? 4. Asa result of an inspection on August 8, 1975, by an authorized representative ofthe Secretary, of the aforesaid worksite, respondent was issued a citation forother than serious violations, three citations for serious violations andnotification of proposed penalties on August 26, 1975. On September 22, 1975,respondent timely filed with a representative of the Secretary a notice ofintent to contest the citations and the notification of proposed penaltiestherefor pursuant to section 10(c) of the Act. Jurisdiction of this proceedingis conferred upon the Commission by section 10(c) of the Act.??????????? 5. OnAugust 8, 1975, the access runway to the north side of the building, which wasmore than 4 feet above the adjacent ground level, was not guarded with astandard guardrailing.??????????? 6. OnAugust 8, 1975, three floor hole openings, one located by each of the northstairways and one located on the east side of the east mechanical shaft, werenot covered or otherwise guarded.??????????? 7. OnAugust 8, 1975, certain floor openings were not guarded by a standard railingand toeboards or cover, to wit: 1) the 40 foot by 9 foot 4 inch south elevator shaftway from the first through the sixth floor, 2) thenorth mechanical shaftway between the second andsixth floor, and 3) the south mechanical shaftwayfrom the third through the sixth floor.??????????? 8.There is no credible evidence that any of respondent?s employees were exposedor had access to the foregoing hazards as set forth in the precedingparagraphs.??????????? 9. OnAugust 8, 1975, the wall openings for the southeast stairway were not guardedwith a standard guardrail from the first through the sixth floor, where therewas a drop of more than 4 feet and the bottom of the opening was less than 3feet above the working surface, and where the height and placement of theopening in relation to the working surface was such that a standard guardrailwould effectively reduce the danger of falling.??????????? 10.There is no credible evidence that any of the respondent?s employees wereexposed or had access to the foregoing hazards as set forth in the precedingparagraphs.??????????? 11.On August 8, 1975, no toeboard was provided for theperimeter guarding on the north, east, and south sides of floors one throughthree where falling materials could create a hazard to employees working below.??????????? 12.On August 8, 1975, a standard guardrail was not provided for floors one throughfour in the interior of the structure on its open sides, which open sides weremore than 6 feet above the adjacent floor or ground level.??????????? 13.There is no credible evidence that any of respondent?s employees were exposedor had access to the hazards as set forth in the two preceding paragraphs.CONCLUSIONS OF LAW??????????? 1.Respondent is an employer within the meaning of section 3 of the OccupationalSafety and Health Act of 1970 and is subject to the jurisdiction of theOccupational Safety and Health Review Commission in this proceeding.??????????? 2.The Secretary has failed to carry the burden of proof to show that therespondent has been in violation of the standards as set forth in the seriousand nonserious citations issued to the respondent.DECISION??????????? Basedupon the above findings of fact and conclusions of law, it is hereby ORDEREDthat the citations and proposed penalties (serious and nonserious) are vacated.?Vernon RiehlJudge, OSHRCDate: July 13, 1976”