“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 76?3444 & 76?3674 \u00a0 BETHLEHEM STEEL CORPORATION, and LOCAL 33, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 \u00a0February 25, 1981DECISIONBefore:CLEARY, Chairman, and COTTINE Commissioner*BYTHE COMMISSION:??????????? Twodecisions of Administrative Law Judge Benjamin Usher are before the Commissionfor review under section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?).[1] In these decisions, JudgeUsher concluded that Bethlehem Steel Corporation (?Bethlehem?) violated severalshipbuilding safety standards published in 29 C.F.R. Part 1916. The first case,Docket No. 76?3444, involves nine citations arising from an inspection of a265,000 ton supertanker at a graving dock in Bethlehem?s Sparrows PointShipyard in Maryland. The second case, Docket No. 76?3674, concerns threecitations arising from a follow-up inspection of the same supertanker at a wetdock in the same shipyard. In both decisions, the judge concluded thatBethlehem committed a serious violation of the Act by failing to comply withthe scaffolding standard at 29 C.F.R. ? 1916.41(a)(5).[2] He assessed a penalty of$1,000 in each case. The judge also concluded that Bethlehem failed to complywith five other standards in 29 C.F.R. Part 1916. The judge rejected, however,the Secretary of Labor?s (?the Secretary?) characterization of these violationsas repeated. He found that some of these alleged repeated violations wereserious and others were other than serious; he assessed penalties totaling$7,300 for these violations. Both Bethlehem and the Secretary petitioned forreview of Judge Usher?s decisions. Chairman Cleary granted both petitions forreview. The direction for review was limited to the following issues:??????????? (1)Whether 29 C.F.R. ? 1916.41(a)(5) applies to the alleged violative conditions???????????? (2)If so, does the evidence establish that respondent violated the standard???????????? (3)Whether the judge erroneously characterized the violations that were cited asrepeated violations?I??????????? Theeight items at issue in both citation 2 in Docket No. 76?3444 and citation 1 inDocket No. 76?3674 allege that, contrary to 29 C.F.R. ? 1916.41(a)(5),Bethlehem failed to maintain, at various places on the supertanker, scaffoldstaging in a safe condition because there were gaps between the staging andbulkheads. At the hearing, the compliance officer testified that according tohis measurements the gaps in the scaffold staging ranged from twelve inches totwenty-four inches in width depending on the location. He testified that thefall distances from the scaffolds ranged from seven to fifty feet, and that thegaps in the staging presented a falling hazard that could cause serious bodilyinjury. Bethlehem offered rebuttal testimony contradicting several of thecompliance officer?s measurements, but the judge found the testimony was ?notconvincing.? The judge held that Bethlehem was in serious violation of theshipbuilding standard at section 1916.41(a)(5) assessed a penalty of $1,000 ineach case. The judge concluded that each cited scaffold was not ?safe? withinthe meaning of the standard because there were gaps exposing employees to fall hazards.??????????? Onreview, Bethlehem contends that section 1916.41(a)(5) is inapplicable. Itargues that the standard mentions only ?broken, burned or otherwise defective?scaffolds and does not require that scaffolding be flush against the bulkhead.Bethlehem argues the maxim expressio unius est exclusio alterius[3] is applicable here andthat the omission in section 1916.41(a)(5) of a clause requiring planking flushto a wall indicates the drafter?s intent not to include such a requirement inthe standard. Bethlehem notes that the steel erection standard at 29 C.F.R. ?\u00a01926.750(b)(1)(i)requires full planking on derricks and erection floors.[4]??????????? Inresponse, the Secretary argues that the standard is applicable and that thegaps violated the requirement in section 1916.41(a)(5) to maintain scaffoldingin a safe condition. The Secretary asserts that Bethlehem?s contention that thestandard applies only to ?broken, burned or otherwise defective? staging is toonarrow a construction of the standard and would render the first sentence ofthe standard redundant with the second. The Secretary contends that such aninterpretation is contrary to the settled principle that standards are to beliberally construed to provide maximum protection to employees.??????????? Weconclude that the standard is inapplicable. The first sentence of section1916.41(a)(5) imposes a duty to maintain scaffolds in a safe condition. Thesecond sentence requires employees to replace any burned, broken or defectivecomponent of a scaffold. Although the first sentence of the standard used thefirst sentence of the standard uses the when read as a whole indicates that itwas intended to address the structural soundness and integrity of the scaffold.We therefore do not read the word ?safe? in the standard as imposing anyspecific requirement with respect to the permissible distance between abulkhead and scaffold planking. Accordingly, we reverse that part of thejudge?s decision that concludes that Bethlehem was in serious violation of theAct for failure to comply with section 1916.41(a)(5),[5] and vacate items 1(a)through (h) of citation 2 in Docket No. 76?3444 and citation 1 in Docket No.76?3674.II??????????? Onreview the Secretary argues that the judge erred in not characterizing otherviolations as repeated within the meaning of section 17(a) of the Act, 29U.S.C. ? 666(a). In both cases it was stipulated that each of the allegedrepeated violations had been preceded by at least one final order citingBethlehem for a violation of the same specific standard. There were twoprevious final orders for violating section 1916.43(c),[6] which requires guardrailson platforms more than five feet above a solid surface; four previous finalorders for violating section 1916.41(i)(1),[7] which requires guardrailson scaffolds more than five feet above a solid surface; one previous finalorder for violating section 1916.41(i)(5),[8] which requires toeboardson scaffolds; three previous final orders for violating section 1916.43(a),[9] which requires covers onmanholes and other small openings; and two previous final orders for violatingsection 1916.51(a),[10] which requires themaintenance of good housekeeping conditions. All of the previous violationsoccurred within a three-year period at Bethlehem?s Sparrows Point Shipyard andeach one had become a final order of the Commission prior to the date of therelated alleged repeated violation.??????????? Thejudge concluded that the violations at issue were not repeated. He relied uponthe interpretation of ?repeatedly? in BethlehemSteel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976). There, the Third Circuitheld that to find a repeated violation of the Act the record must show that theemployer demonstrated a ?flaunting? disregard for the Act by, among otherthings, committing at least two previous violations.??????????? Onreview, the Secretary argues that ?the ?nature and extent? of the violations atissue in the instant cases, when viewed in the context of [Bethlehem?s] ?barelytolerable? past history and lack of good faith, clearly compel a classificationof the violations as ?repeated? even if the unduly restrictive ?flaunting? testis applied.? Bethlehem maintains that its conduct did not demonstrate a?flaunting? of the Act. Bethlehem argues that it was cited for ?a relativehandful of violations,? given the dimensions of the vessel, the ever-changingconditions on the vessel and the broad scope of the inspections. Bethlehem alsoasserts that it cannot be found to have ?flaunted? the Act because for manyyears it has had a safety program that it constantly monitored.??????????? In Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNAOSHC 1061, 1979 CCH OSHD ? 23, 294 (No. 16183, 1979), the Commission thoroughlyre-examined its precedent on the issue of repeated violations in light of theposition taken by the Third Circuit as well as those taken by the Fourth andNinth Circuits in George HymanConstruction Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978), and Todd Shipyards Corp. v. Secretary of Labor,566 F.2d 1327 (9th Cir. 1977). The Commission respectfully declined to followthe Third Circuit?s interpretation. We held that a violation is repeated if, atthe time of the alleged repeated violation, there was a Commission final orderagainst the same employer for a substantially similar violation. Potlatch Corp., 7 BNA OSHC at 1063, 1979CCH OSHD ? 23,294 at p. 28,171. The Commission also held in Potlatch that the Secretary mayestablish substantial similarity by showing that the past and presentviolations are for failures to comply with the same standard. The employer mayrebut this by proving that the factual circumstances of the present violationare so different from the past violations that the situations cannot be viewedas substantially similar. Potlatch Corp.,7 BNA OSHC at 1063, 1979 CCH OSHD ? 23,294 at p. 28,171. See also Bethlehem Steel Corp., 80 OSAHRC 37\/A2, 8 BNA OSHC 1309,1980 CCH OSHD ?24,412 (No. 76?1481, 1980). In this case, the Secretaryestablished substantial similarity through Bethlehem?s stipulation, notedabove, that it had not contested prior citations for failure to comply with thesame standards at issue here. Moreover, the record shows that the present andantecedent violations were substantially similar. The Secretary submitted intoevidence copies of the uncontested citations. The descriptions of the allegedviolations in these citations demonstrate that the present and antecedentviolations of the same standards concerned substantially similar conditions andhazards.[11]We therefore find that the violations were repeated.[12]III??????????? Wenow turn to the assessment of penalties for the ten repeated violations. InDocket No. 76?3444, the Secretary initially proposed a penalty of $2,000 foreach citation involving twenty-nine violations of the standards at sections1916.43(c), 1916.41(i)(1), 1916.41(i)(5) and 1916.43(a). For the citationinvolving fifteen violations of the standard at section 1916.51(a), theSecretary proposed a penalty of $400. In Docket No. 76?3674, the Secretaryinitially proposed a penalty of $4,000 for each citation involving nineviolations of the standards at sections 1916.43(c), 1916.41(i)(1) and1916.41(i)(5); he proposed a penalty of $500 for each citation involving twoviolations of the standards at sections 1916.51(a) and 1916.43(a).??????????? Althoughwe held in Potlatch that anemployer?s flouting of the Act is not a factor in determining whether aviolation is repeated, we noted that the employer?s attitude is considered whendetermining the good faith of the employer under section 17(j).[13] Other factors that bearon the employer?s good faith efforts to comply with the Act are the commonalityof supervisory control over the violative conditions, the geographicalproximity of the violations, the time lapse between violations, and the numberof prior violations. See Potlatch Corp.,7 BNA OSHC at 1064, 1979 CCH OSHD ?23,294 at p. 28,172.??????????? As togood faith, Bethlehem argues extensively that it has an effective safetyprogram, that Bethlehem has always cooperated with the Occupational Safety andHealth Administration (?OSHA?), and that Bethlehem has corrected safety problemswhen brought to its attention. In addition, Bethlehem argues that the number ofalleged violations of the five standards were few given the numerousopportunities for possible violations on a supertanker. The Secretary arguesthat the testimony of the union president demonstrates that Bethlehem was awareof most of the violations at issue before the inspection. The union presidenttestified that the union requested OSHA to conduct an inspection becauseBethlehem had failed to abate the hazards even after a joint team of union andcompany safety representatives observed them. The Secretary also relies on thejudge?s conclusion that, in view of the system of supervision employed byBethlehem (assignment of a supervisor to a small work crew working in a limitedarea with daily viewing of the assigned work area by the supervisor), thesupervisors must have been aware of the violative conditions.??????????? JudgeUsher concluded that Bethlehem?s good faith ?leaves much to be desired.?Although the judge found some merit to Bethlehem?s argument that the number ofalleged violations were few given the size of the vessel, he also stated thatBethlehem?s foremen and supervisors were not adequately convinced of the needto promote employee safety and health. He regarded Bethlehem?s safety programas a ?paper program that needs desperately to be communicated and effectuated.?The judge also noted that the history of prior violations demonstrated ?acompliance posture which can be described as barely tolerable.? The judge foundthe gravity of all alleged repeated violations to be ?relatively substantial.?He found Bethlehem employed approximately 4,000 people at its Sparrows PointShipyard. We accept Judge Usher?s findings.??????????? Takingall of the above into consideration, we assess the following penalties: ??????????? DocketNo. 76?3444??????????? Citation4, item 1. Bethlehem violated section 1916.43(c) at eight locations by nothaving guardrails on platforms on which employees were exposed to fallinghazards. The judge rejected as unproven Bethlehem?s allegation that the citedrailings were removed by unauthorized persons without supervisory knowledge.There were two previous final orders for violating this same standard. TheSecretary proposed a $2,000 penalty. The judge concluded that the violation wasserious and assessed a $1,000 penalty. We modify the judge?s decision andconclude that Bethlehem committed a repeated, serious violation and assess a$2,000 penalty.??????????? Citation5, item 1. Bethlehem violated the standard at section 1916. 41(i)(1) by failingto provide guardrails on scaffolds at nine locations. The judge rejectedBethlehem?s allegation that the railings were removed by unauthorized personswithout supervisory knowledge. There were four previous final orders forviolating this same standard. The Secretary proposed a $2,000 penalty. Thejudge concluded the violation was serious and assessed a $1,000 penalty. Wemodify the judge?s decision and conclude that Bethlehem committed a repeated,serious violation and assess a $2,000 penalty.??????????? Citation6, item 1. Bethlehem violated section 1916.41(i)(5) by failing to providetoeboards on scaffolds at five locations. Bethlehem contends that its policy ofremoving tools and scrap from staging, and not permitting employees to workbeneath other employees, reduced the hazard. The judge rejected this argument,however, because he found that Bethlehem?s policy was ineffective as to theseinstances, that it was not strictly adhered to, and that Bethlehem?s safetyprogram ?amounts to a paper program.? We agree with the judge?s view forpurposes of setting a penalty. There was one previous final order for violatingthis standard. The Secretary proposed a $2,000 penalty. The judge concluded theviolation was serious and assessed a $1,000 penalty. We modify the judge?sdecision and conclude that Bethlehem committed a repeated, serious violationand assess a $1,000 penalty.??????????? Citation7, item 1. Bethlehem violated section 1916.43(a) by failing to cover manholesand other small openings at seven locations. There were three previous finalorders for violating this standard. The Secretary proposed a $2,000 penalty.The judge concluded the violation was serious and assessed a $1,000 penalty. Wemodify the judge?s decision and conclude that Bethlehem committed a repeated,serious violation and assess a $1,500 penalty.??????????? Citation8, item 1. Bethlehem violated section 1916.51(a) by failing to maintain goodhousekeeping conditions at fifteen locations. There were two previous finalorders for violating this standard. The Secretary proposed a $400 penalty. Thejudge concluded that the violation was other than serious and assessed a $400penalty. We modify the judge?s decision and conclude that Bethlehem committed arepeated, other than serious violation but affirm his assessment of a $400penalty.??????????? DocketNo. 76?3674??????????? Citation2, item 1. Bethlehem violated section 1916.41(i)(1) by failing to provideguardrails on four scaffolds more than five feet above a solid surface. Therewere two previous final orders for violating this same standard. The Secretaryproposed a $4,000 penalty. The judge concluded that the violation was seriousand assessed a $1,000 penalty. We modify the judge?s decision and conclude thatBethlehem committed a repeated, serious violation and assess a $2,000 penalty.??????????? Citation2, item 2. Bethlehem violated section 1916.43(c) at three locations by nothaving guardrails on platforms on which employees were exposed to fallinghazards. There were two previous final orders for violating this standard. TheSecretary proposed a $4,000 penalty. The judge concluded the violation wasserious and assessed a $1,000 penalty. We modify the judge?s decision andconclude that Bethlehem committed a repeated, serious violation and assess a$1,500 penalty.??????????? Citation2, item 3. Bethlehem violated section 1916.41(i)(5) by failing to providetoeboards on scaffolds at two locations. There was one previous final order forviolating this same standard. The Secretary proposed a $4,000 penalty. Thejudge concluded that the violation was neither serious nor repeated andassessed a $500 penalty because ?there was no direct testimony or valuableopinion evidence regarding the seriousness of the potential hazard.? We modifythe judge?s decision and conclude that Bethlehem committed a repeated, otherthan serious violation and assess a $600 penalty.??????????? Citation2, item 4. Bethlehem violated section 1916.51(a) by failing to maintain goodhousekeeping conditions at one location. There were two previous final ordersfor violating of this same standard. The Secretary proposed a $500 penalty. Thejudge concluded that the violation was other than serious and assess a $200penalty. We modify the judge?s decision and conclude that Bethlehem committed arepeated, other than serious violation and assess a $400 penalty.??????????? Citation2, item 5. Bethlehem violated section 1916.43(a) by failing to cover an openingin a walking surface. There were three previous final orders for violating thisstandard. The Secretary proposed a $500 penalty. The judge concluded that theviolation was other than serious and assessed a $200 penalty. We modify thejudge?s decision and conclude that Bethlehem committed a repeated, other thanserious violation and assess a $200 penalty.??????????? Accordingly,we vacate items 1(a) through (h) of citation 2 in Docket No. 76?3444 andcitation 1 in Docket No. 76?3674 alleging serious violations of section1916.41(a)(5). We modify the judge?s decision and characterize as repeated theviolations of the standards at sections 1916.43(c), 1916.41(i)(1), 1916.41(i)(5),1916.43(a), and 1916.51(a). We assess a total penalty of $11,600 for theseviolations.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: FEB 25, 1981\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?3444 \u00a0 BETHLEHEM STEEL CORPORATION, and LOCAL 33, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 January 9, 1978DECISION AND ORDERAPPEARANCES:Howard K. Agran, Esq. Office of theRegional Solicitor U. S. Department of Labor Philadelphia, Pennsylvania forComplainant\u00a0Murray N. Shelton, Jr., Esq. LaborAttorney Bethlehem Steel Corporation Bethlehem, Pennsylvania for Respondent\u00a0Mr. Murphy ThorntonPresident, Local 33I.U.M.S.W.A.Baltimore, Marylandfor affected Employees\u00a0USHER, Judge:??????????? Thisis a proceeding initiated by the Secretary of Labor, United States Departmentof Labor, pursuant to Section 10(c) of the Occupational Safety and Health Actof 1970 (29 U.S.C. 651, et seq., hereinafter referred to as the Act) seeking affirmanceby the Commission of nine Citations which charge six ?non-serious? violations,two ?serious? violations and six ?repeated? violations of Sections 5(a)(1) and5(a)(2) of the Act, and seeking further to have the Commission assess penaltiesfor these alleged violations totaling $11,200.[14]??????????? TheCitations resulted from an inspection of a work site maintained by Respondentaboard a 265,000 ton supertanker (?Hull 4645?) which was being constructed in agraving dock at Respondent?s Sparrows Point (Maryland) Shipyard. The inspectionby Complainant?s agents, Compliance Safety and Health Officers (?CSHOs?) fromthe Baltimore office of the Occupational Safety and Health Administration(?OSHA?) was initiated as the result of a complaint by the union (Local 33, I.U.M.S.W.A.).It commenced on June 28 and was concluded on July 9, 1976. Eight days ofinspection were involved. Officials of Respondent?s safety department andseveral union representatives accompanied the CSHOs during the physicalinspection of the workplace.??????????? Respondentfiled a timely Notice of Contest which placed in issue all of the Citations aswell as Complainant?s Notification of Proposed Penalties. A Complaint andAnswer followed pursuant to the Commission?s Rules of Procedure.??????????? Theissues were tried before me at Baltimore, Maryland, on January 24, 25, 26, 27and February 1 and 2, 1977.??????????? Theaffected employees? representative (?the Union?) elected party status throughits Executive Secretary, James C. Harmon, on January 21, 1977, and evidence wasadduced at the trial by Complainant, Respondent and the Union.??????????? Complainantand Respondent have submitted Post Trial Briefs. The Union has not.The Issues??????????? Thepleadings, evidence adduced by the parties, arguments of counsel and the briefssubmitted subsequent to the trial have served to raise the following issues:??????????? 1.Whether evidence adduced by the Union should be stricken.??????????? 2.Whether Complainant?s Motion to Amend Citation No. 1 (and related portions ofthe Complaint) to allege violation of an additional safety standard(alternatively to that set forth in Citation No. 1, Item 1) should be granted.??????????? 3.Whether Respondent committed any or all of the violations alleged byComplainant;??????????? a.Whether the acts and omissions of Respondent, which are asserted as violativeof the provisions of the Act, were ?isolated incidents . . . considering thedimensions of the ship, the number of employees working on it and their variedchanging activities and the consequent number of potential violations;???????????? b.Whether lack of knowledge of the alleged violative conditions by Respondent?ssupervisory personnel precludes a finding of violation;??????????? c.Whether employee failure to abide by safety rules promulgated by Respondentabsolves Respondent.??????????? 4. IfRespondent has violated the Act in any or all of the instances charged byComplainant, whether the violations are properly classified as ?repeated,??serious? or ?other than serious,? as defined in Section 17 of the Act.??????????? 5. IfRespondent has violated the Act in any or all of the instances charged byComplainant, what penalty or penalties are appropriate when due considerationis given to the size of Respondent?s business, the gravity of the violations,Respondent?s good faith attitude (or lack thereof) regarding the safety and healthof its employees, and the history of Respondent?s compliance or non-compliancewith the provisions of the Act.??????????? EvidenceAdduced by Affected Employees? Representative??????????? Respondenthas moved to strike ?all testimony adduced by [the Union]? and argues that itshould ?not be considered in the deliberations covering this case.? Itsargument rests on the theory that Section 10(c) of the Act ?limits employeecontests to the reasonableness of the period of time which is fixed in thecitation for abatement [and] not only did [the Union] not charge a failure ofabatement, in fact abatement was effected shortly after the issuance of theCitation in each and every item covered by the Citation.? Section 10(c) of theAct provides, in pertinent part:If an employer notifies the Secretary thathe intends to contest a citation issued under section 9(a) or notificationissued under subsection (a) or (b) of this section, or if, within fifteenworking days of the issuance of a citation under section 9(a), any employee orrepresentative of employees files a notice with the Secretary alleging that theperiod of time fixed in the citation for the abatement of the violation isunreasonable, the Secretary shall immediately advise the Commission of suchnotification, and the Commission shall afford an opportunity for a hearing . …The rules of procedure prescribed by theCommission shall provide affected employees or representatives of affectedemployees an opportunity to participateas parties to hearings under this subsection. (Emphasis added.)\u00a0??????????? Thus,the Congressional intent is clearly set forth in the Act. That provision of thelaw, taken in conjunction with the legislative history, leaves no doubt thataffected employees shall be given an opportunity to participate fully as partiesin any action brought pursuant to ?this subsection? (Section 10(c)) whetherinitiated by ?an employer? or ?any affected employee or representatives ofaffected employees.???????????? Respondentcites Secretary of Labor v. OCAW (MobilOil Corporation), OSHRC Docket No. 562, 1 BNA OSHC 1104; Secretary of Labor v. UAW Local 588 (FordMotor Company), OSHRC Docket No. 2786, 4 BNA OSHC 1243; and Secretary of Labor v. U. S. SteelCorporation, OSHRC Docket Nos. 2975, 4349, 4684, 14999, 4 BNA OSHC 2001, insupport of its position. Those decisions stand for entirely differentpropositions. None are apropos here.??????????? Inthis instance the Union?s participation as a party was full and complete. Itwas, indeed, helpful to the trier of fact and was clearly within the intent of Congressas expressed in no uncertain terms in Section 10(c) of the Act.[15]??????????? Respondent?smotion to strike evidence adduced by the Union is denied.??????????? Amendmentof Citation and Complaint??????????? InCitation No. 1, Item 1, Complainant has set forth an allegation of violation ofSection 5(a)(2) of the Act because of noncompliance with the safety standardcodified at 29 CFR 1910.24(h). That regulation provides:Standard railings shall be provided on theopen sides of all exposed stairways and stair platforms. Handrails shall beprovided on at least one side of closed stairways, preferably on the right sidedescending. Stair railings and handrails shall be installed in accordance withthe provisions of ? 1910.23.?At the conclusion of the presentation of Respondent?scase, Complainant moved to amend that charge to assert ?in the alternative, apossible violation of 29 CFR 1910.23(d)(1)? (Tr. 900). That safety standardrequires that:Every flight of stairs having four or morerisers shall be equipped with standard stair railings or standard handrails asspecified in subdivisions (i) through (v) of this subparagraph, the width ofthe stair to be measured clear of all obstructions except handrails:(i) On stairways less than 44 inches widehaving both sides enclosed, at least one handrail, preferably on the right sidedescending.?(ii) On stairways less than 44 inches widehaving one side open, at lease one stair railing on open side.?(iii) On stairways less than 44 incheswide having both sides open, one stair railing on each side.?(iv) On stairways more than 44 inches widebut less than 88 inches wide, one handrail on each enclosed side and one stairrailing on each open side.?(v) On stairways 88 or more inches wide,one handrail on each enclosed side, one stair railing on each open side, andone intermediate stair railing located approximately midway of the width.???????????? Respondenturges that the standard codified at 29 CFR 1910.24(h) is a ?specificationstandard which sets forth the requirements for designing and constructingstairs . . . the stairs were under construction and, therefore, the Standardwas met . . . because the railings were to be installed on the stairs accordingto schedule, just as the Standard requires.???????????? Althoughnot specifically so stated by Complainant?s counsel, the motion to amend isseemingly grounded on Rule 15(b), Federal Rules of Civil Procedure (CommissionRule 2(b)). However, the record indicates that Respondent did not expressly orimpliedly consent to trial of the issues raised by the regulation appearing at29 CFR 1910.23(d)(1).??????????? It issignificant that Complainant did not seek to amend until the conclusion ofRespondent?s case in chief on February 1, 1977, more than six months after theissuance of the citation and almost five months after Respondent asserted inits Answer that the wrong standard had been cited.[16] Deliberately or not,Complainant misled Respondent during all of that period when trial preparationwas continuing. Prejudice to Respondent under such circumstances is evident.[17]??????????? Complainant?smotion to amend is denied.??????????? Discussionand Evaluation of Evidence of Alleged Violations??????????? CitationNo. 1, Items 1(a), 1(b) and 1(c)??????????? Complainanthas charged violations because of the lack of a standard railing on the opensides of exposed stairways at three different locations in the ?deck house? ofthe ship. The CSHO testified that he observed these conditions, and Respondenthas not sought to rebut that testimony. Respondent argues, however, that thecited standard (1910.24(h)) ?is a specification standard which sets forth therequirements for designing and constructing stairs… the stairs were underconstruction . . . the railings were to be installed on the stairs according toschedule . . . and, therefore, the Standard was met.???????????? TheCSHO stated that he observed Respondent?s employees using the unguarded stairs.??????????? Assumingthe correctness of Respondent?s argument that the standard in question is aspecification standard, its logical intent is to require that its provisions bemet before the stairs are put into use by employees. Thus, the employees? useof the unfinished stairs constituted the obvious hazard sought to be avoided,and a violation of the regulation occurred.??????????? CitationNo. 1, Item 2??????????? Respondentis charged with a violation of Section 5(a)(2) of the Act because of itsalleged failure to comply with the safety standard codified at 29 CFR1916.64(a) which requires that chain falls shall be clearly marked to indicatetheir capacities.??????????? TheCSHO observed two of Respondent?s employees using an unmarked chain fall innumber 6 wing tank at the time of his inspection. Respondent has not rebuttedthe CSHO?s assertion, but rather has argued that ?there were hundreds of chainfalls on Hull 4645 [and] . . . it must be concluded that the one instancecited… was an isolated instance and was outside the clear and longestablished policy . . . to mark chain falls.???????????? Theviolation was established. The fact that it may have been an isolated instancehas limited merit.??????????? CitationNo. 1, Items 3(a), 3(b), 3(c) and 3(d)??????????? Respondentis charged with violating the Act because of its failure to comply with theprovisions of the safety standard codified at 29 CFR 1916.64(c) which requires,inter alia, that the upper hooks of chain falls be ?moused or otherwise securedagainst coming free of [their] support[s].? The CSHO testified that he observed14 different ?unmoused? chain falls in four general areas on the ship.Employees of Respondent were working directly beneath or otherwise near thechain falls in question.??????????? Respondenthas not denied the basic factual assertions regarding these alleged violations,but rather, has asserted that the chain falls ?were otherwise secured bypositioning the supporting members so that the load was vertical or nearly so.?Respondent?s witnesses testified that the positioning of the load upon thechain falls rendered the possibility of an accident ?highly unlikely.? Thatassertion was not seriously rebutted by the testimony adduced by Complainant orthe Union. The violations were not proved.??????????? CitationNo. 1, Item 4??????????? Complainanthas charged that Respondent used scaffolding as a point of attachment forlifting devices, viz., chain falls at two locations on the ship. The safetystandard in question provides:Scaffolding shall not be used as a pointof attachment for lifting devices, such as tackles, chain falls, and pull-liftsunless the scaffolding is specifically designed for that purpose (29 CFR1916.64(d)).???????????? TheCSHO testified that he saw four one-ton chain falls suspended from scaffolds or?staging boards? and observed Respondent?s employees working with or under thelifting devices. Respondent?s witnesses disputed the assertion that theplanking to which the chain falls were attached was scaffolding, andComplainant?s witness was unable to allay that doubt. Except for the assertedfact that one laborer was observed walking (or working) on one of the stagingboards in question, Complainant was not able to rebut Respondent?s assertionthat the boards were specifically designed to support the lifting devices andwere not employee walkways or work stations. The asserted violation was notproved.??????????? CitationNo. 1, Item 5??????????? Thesafety standard set forth at 29 CFR 1961.41(h)(3) requires:Platform planking shall project beyond thesupporting members at either end by at least 6 inches but in no case shallproject more than 12 inches unless the planks are fastened to the supportingmembers.???????????? Complainanthas charged that ?employees were permitted to use staging . . . on which theplanking extended four feet beyond the supporting member and was not secured.?The CSHO testified that he observed one of Respondent?s employees working onplanking not constructed in accordance with the cited standard. Respondent?sSupervisor of Safety (at the Sparrows Point Yard) accompanied the CSHO on theinspection tour, and he denied having seen the employee on the planking inquestion. Furthermore, according to Respondent?s witness, a railing was inplace to prevent employee access to the ?extended area? and aweight-displacement factor would preclude overturning or tipping the planking.Thus, Respondent urges that no hazard was presented. I disagree. Weighing thecredibility of the witnesses, I have concluded that a violation was proved, ahazard existed, and an employee was exposed.??????????? However,Respondent?s argument that ?the 4? overhang was not a normal practice, it wasan isolated incident? does have merit.??????????? CitationNo. 1, Item 6??????????? Complainanthas charged that ?[t]he exposed noncurrent-carrying metal parts of a temporarylight . . . were not grounded? contrary to the requirements of the safetystandard codified at 29 CFR 1916.52(c). That standard provides:[e]xposednon-current-carrying metal parts of temporary lights furnished by the employershall be grounded either through a third wire in the cable containing thecircuit conductors or through a separate wire which is grounded at the sourceof the current. Grounding shall be in accordance with the requirements of ?\u00a01916.72(b).?Complainant?s witness observed a temporary quartzlight the ground wire of which was disconnected or ?hanging loose.? He assumedfrom that observation that the light was not grounded, but, as explained byRespondent?s Supervisor of Safety, the light was in fact grounded ?by means ofthe metal base [of the light] . . . bolted to the ship?s structure [which] isgrounded.???????????? Perhapsthe grounding in this instance was not accomplished in strict accordance withthe requirements of the standard or standards in question, but it appears thatno hazard resulted. Thus, the violation, if any, would be de minimis.??????????? CitationNo. 2, Items 1(a) through 1(h)??????????? InItems 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), and 1(h) of Citation No. 2Complainant has charged ?serious? violations of the safety standard whichprovides that:[s]caffolds shall be maintained in a safeand secure condition. Any component of the scaffold which is broken, burned orotherwise defective shall be replaced. (29 CFR 1916.41(a)(5)).?Specifically, it is charged that ?[e]mployees werepermitted to use staging that was not being maintained in a safe condition inthat the staging was not fully planked . . .? at eight different locations.??????????? Item1(a) contains the allegation that there was a one-foot opening between theplanking and the bulkhead in the engine room of the ship. The CSHO testifiedregarding his observation of the condition and identified employees who workedon the staging. A 12?1\/2 foot fall awaited the employee who stepped off the endof the planks, according to Complainant?s witness.??????????? Item1(b) involves staging at the fore peak tank bulkhead 128 where, according tothe CSHO, there was a 20-inch gap. A 20-foot fall was described as the hazardfor employees who misstepped. The exposed employees were identified.??????????? Item1(c) involves staging at the No. 7 starboard wing tank bulkhead 66 where a17-inch opening between the planks and the bulkhead was observed byComplainant?s agent. The possibility of a 35-foot fall to the next lower levelwas described, and the employee observed working at the location wasidentified.??????????? Atframe 106 in the No. 2 starboard wing tank the CSHO saw a 19-inch opening,12?1\/2 feet long, between the staging boards and the bulkhead (Item 1(d)). Thehazard, a 29-foot fall to the area below, was described, and Respondent?semployee working at the scene was identified.??????????? Complainantasserted (as Item 1(e), Citation No. 2) that there was a 2-foot opening betweenthe staging and a handrail at frame 95 in the starboard wing tank. The CSHOtestified that he observed the condition, observed an employee working at thatlocation, and noted that if an employee fell from the staging, he would fallapproximately nine feet to the surface below.??????????? Atframe 114 in the No. 1 port wing tank, the CSHO observed a 15-inch openingbetween staging and the web bulkhead. That condition is charged as a violationin Item 1(f) of Citation No. 2. A seven-foot fall could have been sustained bythe employee, Charles Richardson, who worked at that location on July 2, 1976,according to the testimony.??????????? A15-inch opening was observed between the staging and bulkhead 82 in the No. 5wing tank (as charged in Item 1(g)), according to the testimony, and a 16-footfall could have occurred. Respondent?s employee Song Sosa was seen working atthat location.??????????? InItem 1(h), Citation No. 2, Complainant has charged a violation because of a19-inch gap between the staging boards and the bulkhead in the No. 6 starboardwing tank at bulkhead 74. One of Respondent?s employees was observed working atthat location, and a fall of 23 feet to the deck below was described as thehazard presented.??????????? Thetestimony of Complainant?s agent regarding the allegedly unsafe, insecure anddefective scaffolding was supported in part by the testimony of Respondent?semployees, but, more noticeably, it was not materially contradicted by anywitness.??????????? Respondentargues that there is no evidence that any of the planks were ?broken, burned orotherwise defective.? Thus, Respondent argues ?that the cited [s]tandard is notapplicable to the situation involved . . ..? The described conditions did, inmy opinion, render the scaffolds unsafe and insecure. The missing planks, thegaps and holes did, in fact, present falling hazards, and employees wereexposed to those hazards.??????????? Theargument adduced by Respondent: ?there was [sic] over 2,900,000 board feet ofstaging [on the ship] and the eight items under Citation 2 were the only itemsfor which the Respondent was cited for allegedly defective planking,? hasmerit. These conditions may well have been ?isolated instances? as Respondentclaims. They were, nevertheless, noncompliant with the requirements of thestandard and thus, violative of the Act.??????????? Thetestimony of Respondent?s witness that ?there was no drop from the staging?(with respect to the conditions described in Items 1(b), 1(c), 1(d) and 1(e) ofCitation No. 2) is not convincing in light of all the testimony to thecontrary.??????????? Theargument put forth by Respondent?s witnesses that the staging is deliberatelyarranged to allow gaps for the passing of material through them is likewiseunconvincing. The proposition that the standard in question allows for gapsbetween the scaffold and the bulkhead is rejected as unsound.??????????? CitationNo. 3, Items 1(a) through 1(h)??????????? Complainanthas charged eight ?serious? violations of Section 5(a)(1) of the Act (theso-called ?general duty? clause)[18] because of the exposureof employees to allegedly faulty electrical cables and similar electricalhazards.??????????? Thegeneral duty clause of the Act prohibits ?recognized hazards that are causingor are likely to cause death or serious physical harm to employees.? Toestablish a ?serious? violation Complainant must prove ?a substantialprobability that death or serious physical harm could result . . . unless[Respondent] did not, and could not with the exercise of reasonable diligence,know of the presence of the violation.? (Section 17(k) of the Act; 29 U.S.C.666(k).) See National Realty andConstruction Company, Inc. v. OSHRC, et al, 489 F.2d 1257 (D.C. Cir.,1973); Secretary of Labor v. MarquetteCement Manufacturing Company, OSHRC Docket No. 4725, ?? F.2d ??, CCH OSHDpara. 22,099 (2d Cir. August 29, 1977).??????????? Respondenturges that ?the employee exposure was unforeseeable and not according toinstructions [and] there has been a program in effect for many years at theYard for repairing and maintaining electrical cable.? It is further argued thatComplainant has failed to prove ?that a hazard existed? as the result of thepresence of the faulty cables.??????????? InItem 1(a) of Citation No. 3 it is charged that the door of a 440-volttransformer box (located on the port side aft of the Main deck) was found open.Complainant failed to prove how the transformer box came to be open, who leftit open or how long it had been open. Respondent?s argument that it ?could havebeen opened as recently as five minutes earlier? (before being found in thatcondition by the CSHO) is well taken. Knowledge of the violation by Respondenthas not been proved.??????????? Items1(b) through 1(h) of Citation No. 3 contain asserted violations of Section5(a)(1) of the Act because of the presence of 220-and 440-volt cables whichwere observed laying on the Main deck. The cables were, according toComplainant?s witnesses, ?frayed,? ?deteriorated? and had ?poorly insulated?splices. The testimony establishing these conditions and verifying employeeexposure was entirely credible.??????????? Thatthe faulty cables constituted a recognized hazard can hardly be questioned.?The potential for injury is indicated on the record . . . and, or course, bycommon sense . . . [i]t scarcely requires expertise in the industry torecognize [that exposed or partially exposed current-carrying electrical wires]. . . is hazardous.? Secretary of Laborv. Marquette Cement Manufacturing Company, supra. Furthermore, as was truein Marquette (supra), specificstandards prohibit the existence of these very conditions in the constructionindustry (e.g., see 29 CFR 1926.402(a)(5), 1926.402(a)(7) and 1926.402(a)(10)).??????????? Respondent?sasserted defense that ?Complainant has failed to describe and demonstrate thefeasibility and likely utility of the particular measures or steps [that]should have [been] taken to avoid the Citation . . . ?is without merit. Theobvious answer is more frequent inspection and repair of the cables. The CSHOtestified to that.??????????? Finally,the assertion that the employees may have caused the violation?or could haveavoided it?is answered by the Circuit Court in Marquette, supra: ?Even if ahazard is partially caused by an employee?s own conduct, the employer isresponsible if he could have prevented it.???????????? CitationNo. 4, Items 1(a) through 1(h)??????????? Eight?repeat? [sic] violations of Section 5(a)(2) of the Act are charged in CitationNo. 4 because of Respondent?s alleged noncompliance with the safety standardcodified at 29 CFR 1916.43(c). The cited standard reads:When employees are exposed to unguardededges of decks, platforms, flats, and similar flat surfaces, more than 5 feetabove a solid surface, the edges shall be guarded by adequate guardrailsmeeting the requirements of ? 1916.41(i)(1) and (2), unless the nature of thework in progress or the physical conditions prohibit the use or installation ofsuch guardrails; . . ..?29 CFR 1926.41(i) requires (in pertinentpart):(1) Scaffolding, staging, runways, orworking platforms which are supported or suspended more than 5 feet above asolid surface, or at any distance above the water, shall be provided with arailing which has a top rail whose upper surface is from 42 to 45 inches abovethe upper surface of the staging, platform, or runway and a midrail locatedhalfway between the upper rail and the staging, platform, or runway.?(2) Rails shall be of 2 x 4 inch lumber,flat bar or pipe. When used with rigid supports, taut wire or fiber rope ofadequate strength may be used. If the distance between supports is more than 8feet, rails shall be equivalent in strength to 2 x 4 inch lumber. Rails shallbe firmly secured. Where exposed to hot work or chemicals, fiber rope railsshall not be used.???????????? Complainanthas asserted that employees were required to work or walk on unguarded elevatedcatwalks, decks, webs and platforms at eight different locations on Hull 4645.The employees observed by the CSHO in such positions on June 30, July 1, July2, July 6 and July 7, 1976, were identified by Complainant?s witness. Histestimony was corroborated in several respects by the testimony of Respondent?semployees.??????????? Respondentagain attempts to trivialize the alleged violations by pointing out that ?[o]fthe 2.9 million board feet of staging [on Hull 4645] the only allegedviolations were the eight items listed in Citation No. 4.? While certainly nota valid defense, that observation may have merit.??????????? Respondentattempted to establish as fact the opinion of several of its witnesses thatrailings were removed by unauthorized persons (employees) without supervisoryknowledge. The assertions were not proven.??????????? Itwas established, however, that in some instances employees had ?received safetycontacts? (seemingly a mild reprimand or vague warning) because of working onstaging without railings.??????????? Accordingto Respondent?s witnesses the use of safety belts is ?required where needed,?and they are ?available.? One instance of an employee being ?knocked off?because of his failure to use a safety belt was recalled by one of Respondent?switnesses.??????????? Theevidence supports the charges set forth in Citation No. 4. The falling hazards(potential drops of from 10 to 30 feet to surfaces below) were described.??????????? CitationNo. 5, Items 1(a) through 1(i)??????????? Repeatedviolations at nine different locations were charged because of Respondent?sfailure to comply with the requirements of the safety standard codified at 29CFR 1916.41(i)(1).??????????? Thatstandard provides:Scaffolding, staging, runways, or workingplatforms which are supported or suspended more than 5 feet above a solidsurface, or at any distance above the water, shall be provided with a railingwhich has a top rail whose upper surface is from 42 to 45 inches above theupper surface of the staging, platform, or runway and a midrail located halfwaybetween the upper rail and the staging platform, or runway.???????????? Thetestimony of Complainant?s agent and Respondent?s employees served to verifythe allegations set forth in the citation. Ten or more employees who worked orwalked upon unguarded staging in late June, 1976, were identified.??????????? Respondentagain asserted and attempted to establish the defenses raised as to theviolations charged in Citation No. 4, viz., the 2.9 million board feet ofstaging and only nine alleged violations; the company policy regarding theerection of guardrails where needed; the ?possible? removal of guardrails byunknown employees without the knowledge of supervisory personnel; the yard?ssafety belt practice; and alleged employee misconduct which caused the assertedviolations. None of these defenses was established; however the ?misconduct?assertion deserves discussion.??????????? It issufficiently well settled to state as a general proposition:?. . . If an employee is negligent orcreates a violation of a safety standard, that does not necessarily prevent theemployer from being held responsible for the violation. [Citations omitted.]True, an employer is not an insurer under the Act. But an employer isresponsible if it knew or, with the exercise of reasonable diligence, shouldhave known of the existence of a serious violation.??SeeSecretary of Labor v. Butler Lime and Cement Company, et al.,520 F.2d 1011 (7 Cir. 1975) and cases cited therein. The question of thisRespondent?s knowledge, its exercise of reasonable diligence and thus itsresponsibility is treated hereinafter.??????????? CitationNo. 6, Items 1(a) through 1(e)??????????? Respondentis charged with repeated violations of the Act because of its alleged failureto comply with the safety standard codified at 29 CFR 1916.41(i)(5) whichrequires that toeboards be provided on scaffolds and other elevated workingplatforms when they are necessary to prevent materials and tools from fallingon employees below.??????????? Therecord establishes without contradiction that prices of flatbar, stagingbrackets, nuts and bolts and scrap material were observed on suspended or elevatedstaging. Employees were either working or walking upon these surfaces at thetime, and coincidentally other employees were exposed to the hazard of theseobjects falling as they worked below the staging.??????????? Respondentargues that toeboards are required by the standard only ?when necessary? toprevent tools and materials from falling on men below. That, of course, istrue. The argument that Complainant failed to establish employee exposure isnot supported by the record. That Complainant?s witness ?did not know of anyaccident which occurred as the result of tools or materials falling offstaging? is impertinent. The obvious intent of the Act is to prevent the firstaccident. Evidence of a prior accident may serve to prove a hazardouscondition, but the fact that no accidents (at a particular work site) areattributable to a given condition, practice or procedure proves nothing.??????????? The?unnecessary? argument is carried a step further when Respondent seeks toestablish the existence of a ?Corporate-wide policy on removing scrap and toolsfrom staging? and its efforts to enforce that policy. Respondent?s safetypolicy is addressed elsewhere in this opinion, but it should suffice to observehere that the policy was ineffective at least in those instances cited byComplainant.??????????? Respondent?s?policy? of not allowing its employees to work under other employees waslikewise not strictly adhered to, according to the evidence, despite thealleged stopping of work in progress in some such situations.??????????? Theassertion by Respondent that the 10 to 40-pound pieces of flatbar and brackets weretoo heavy to fall or be knocked from the staging lacks merit.??????????? Therecord supports Complainant?s charge that the missing toeboards were necessaryand thus establishes the violations set forth in Citation No. 6.??????????? CitationNo. 7, Items 1(a) through 1(g) ??????????? Thesafety standard codified at 29 CFR 1916.43(a) provides:When employees are working in the vicinityof flush manholes and other small openings of comparable size in the deck andother working surfaces, such openings shall be suitable covered or guarded to aheight of not less that 30 inches, except where the use of such guards is madeimpracticable by the work actually in progress.???????????? Complainanthas charged seven repeated violations of this standard at separate locations onthe ship. He has identified employees whom his agent observed working ?near,??next to? or ?adjacent to? the unguarded openings. The testimony of the CSHOwas corroborated by employee statements in several instances.??????????? Respondentagain raises the ?isolated instance? defense and asserts that there are?thousands of construction holes on board Hull 4645 [and only] seven . . .construction holes . . . [were] cited.? While that argument may have somelimited merit, it does not alter the facts as proven by Complainant.??????????? Theassertion by Respondent that employee exposure was not proven is ill-founded.??????????? Respondentcontends that ?penetrations are made in the deck daily [and] it could verylikely be that supervision was not made aware of the particular holes.? Whilesuch an argument may have mitigating value as a defense, it does not serve tonegate the charge that the violations existed as the time of the OSHAinspection. Respondent?s knowledge and its duty to know are discussed below.??????????? CitationNo. 8, Items 1(a) through 1(o)??????????? Thesafety standard appearing at 29 CFR 1916.51(a) reads:Good housekeeping conditions shall bemaintained at all times. Adequate aisles and passageways shall be maintained inall work areas. All staging platforms, ramps, stairways, walkways, aisles, andpassageways on vessels or drydocks shall be kept clear of all tools, materials,and equipment except that which is in use, and all debris such as welding rodtips, bolts, nuts, and similar material. Hose and electric conductors shall beelevated over or placed under the walkway or working surfaces or covered byadequate crossover planks.???????????? Fifteeninstances of violation of the quoted standard are charged because ?[e]mployeeswere assigned . . . to work . . . where they were subjected to tripping andfalling hazards by reason of excessive accumulations of pipe, electric andwelding cables, oxygen\/acetyline houses, compressed air hoses, ventilationtubing and scrap.? Specific employees who ?were working in,? ?had to passthrough? or ?had to walk? in these cluttered areas were identified. Thetestimony of the CSHO and several employees established the charge, andphotographic evidence corroborated that testimony.??????????? Respondentseeks to defend against these charges by asserting, ?each employee in the yardis specifically responsible for keeping his or her own work area clean.? Therecord establishes employer knowledge of the conditions. Respondent?ssupervisory personnel could hardly claim a lack of knowledge in view of theword descriptions of the areas in question and the photographic evidence. Thusemployee responsibility, in itself, is not the answer (Secretary of Labor v. Butler Lime and Cement Company, et al., supra.).??????????? Theargument that Complainant?s position is unrealistic inasmuch as it ?would meanhundreds of walkways [and that] . . . would not be possible or practical?misses the point. The regulation requires that only ?adequate? aisles,passageways and work areas be free from unnecessary accumulations of tools,materials and equipment. The asserted violation goes to that end result, andComplainant does not seek more here than the standard requires.??????????? Respondentcorrectly points out that some (but not all) of the material and equipmentwhich cluttered the areas in question was in use at the time of the inspection.It is that which was not in use that Complainant seeks to have removed.??????????? Respondentrejects the suggestion that it could use ?trees? and overhead hooks to elevatehoses and electrical conductors. In some instances perhaps such devices wouldbe impractical or be obstacles to the operation of overhead cranes, asRespondent asserts, but the infeasibility of such means of eliminating trippinghazards in all areas was not shown. Likewise, Respondent has not shown theimpossibility of covering hoses and electrical cables by means of crossoverplanks or molded treadles of some type.??????????? CitationNo. 9, Items 1(a), 1(b) and 1(c)??????????? Respondentis charged with permitting employees to use ?ladders with side rails that didnot extend 36 inches above the landing? at three separate locations. The safetystandard in question provides, in pertinent part:The sides rails of ladders used for accessto any level shall extend not less than 36 inches above that level. When thisis not practical, grab rails which will provide a secure grip for an employeemoving to or from the point of access shall be installed. (29 CFR1916.42(a)(3).)?The cited violations are characterized as ?repeat?[sic].??????????? Therecord establishes the allegation that in the three locations described therewere in use ladders without side rails extending 36 inches above the accesslevels. However, the unrebutted evidence adduced by Respondent established thatthere was in each instance a ?grab rail? of one sort or another which provideda secure grip for an employee who moved to or from the point of access.Complainant?s witnesses questioned the adequacy of the pipes and other materialwhich provided the grip, but their testimony did not serve as seriousrefutation of Respondent?s position.??????????? Noevidence was adduced by either party regarding the practicability of extendingthe side rails on the ladders.??????????? Complainantdid not prove a violation of the safety standard set forth at 29 CFR1916.42(a)(3).Employer Knowledge of HazardousConditions; Employee Misconduct; Isolated Instances??????????? It isnow well settled that employer knowledge or scienter[19] is an essential elementof ?serious? as well as non-serious violations.[20] Complainant has theburden of proving that Respondent, through its supervisory personnel, knew orshould have known of the violative conditions to which its employees wereexposed.[21]In the absence of proof of actual knowledge, constructive knowledge by theemployer may be shown through evidence of the absence of an adequate safetyprogram or by a showing that an adequate safety program was inadequatelyenforced.[22]??????????? If,as Respondent contends, ?many of the alleged violations . .. existed withoutsupervisory knowledge or control,? then its safety program must be scrutinizedto determine whether that lack of knowledge is attributable to a failure on thepart of supervisory personnel to use due diligence to detect safety violations.According to the evidence elicited by Respondent on cross examination of anemployee, a supervisor might supervise ?anywhere from 10 to 25 hourly employees. . . located in one general area.? Such an ?area? was described as being ?10times the size of [an average-size courtroom] . . ..?[23] On that basis, it isdifficult to conclude that the employer?s representatives would not be aware ofsuch obvious condition as missing guardrails, staging planks and toeboards oruncovered floor openings, strewn cables and hoses and the like.??????????? Inassessing the employer?s knowledge of the violations, or lack thereof, itsgeneral safety program, the implementation and administration of that program,and the ?feasible precautionary steps [taken] to prevent the hazard[s]? must beconsidered.??????????? Thetestimony of Respondent?s Corporate Safety Engineer is entirely credible. Therecan be little doubt from the record that Respondent has demonstrated a realconcern for the safety and health of its employees. Whether that corporateconcern has found viability at Respondent?s Sparrows Point Shipyard isquestionable. The considerable testimony adduced by (and from) the hourlyemployees leaves doubt concerning the adequacy of the safety program at theshipyard and the communication of that program?s objectives to the hourlyemployees. See Secretary of Labor v.Enfield?s Tree Service, Inc., OSHRC Docket No. 9118, CCH OSHD para. 21,607.Respondent seemingly would place much of the blame upon the employees and theirrepresentatives (the Union). The Union and its members decline to accept anyresponsibility for wrong-doing and charge that ?management? is lax.??????????? Ifind as a matter of fact that the management at Respondent?s Sparrows PointShipyard has done little beyond mouthing Respondent?s general safety program.Its safety supervisor, foremen, superintendents, and supervisors spokegarrulously of the safety programs at the shipyard. Their testimony was noticeablypat. It was contradicted in many respects by the patent facts and in almostevery respect by the employees? accounts.??????????? Testimonyby Respondent?s witnesses concerning the distribution of safety manuals andtheir assertions regarding safety conferences with employees (?safety audits?and ?employee-supervisory contacts?) was soundly discredited by employeetestimony. These safety measures were shown to be, at best, ?too little, toolate.???????????? Respondent?ssafety program, as described in this record, amounts to a paper program thatneeds desperately to be communicated and effectuated at the Sparrows Point worksite.??????????? Respondentclearly failed in its attempt to prove a ?lack of supervisory knowledge orcontrol? of the hazardous conditions. Thus the ?isolated instance? assertionmust fall as an unproved defense.[24]??????????? Violations??Serious,??Other-than Serious?, ?Repeated???????????? Theviolations charged in Citation No. 1 (Items 1(a), 1(b) 1(c), 2 and 5) arecharacterized by Complainant as ?non-serious? violations because of the absenceof a substantial probability that death or serious physical harm could resultin the event of an accident caused by the described conditions (Section 17(c),17(k) of the Act). The proof substantiates that charge.??????????? CitationsNos. 2 and 3 (Items 1(a) through 1(h) of Citation No. 2 and Items 1(b) through1(h) of Citation No. 3) contain charges of ?serious? violations of the Act.According to the record the conditions described in those charges did present asubstantial probability of death or serious physical harm in the event of anaccident. Thus, the ?serious? nature of the violations has been established.??????????? Forty-four?repeated? violations are asserted in Citations Nos. 4, 5, 6, 7 and 8.??????????? Complainanthas cited two previous violations of 29 CFR 1916.43(c), four previousviolations of 29 CFR 1916.41(i)(1), one previous violation of 29 CFR1916.41(i)(5), three previous violations of 29 CFR 1916.43(a) and two previousviolations of 29 CFR 1916.51(a).[25]On this basis, theviolations charged here (in Citations Nos. 4, 5, 6, 7 and 8) are characterizedas ?repeated.?[26]??????????? TheReview Commission and the Courts of Appeals have expressed confusinglydifferent interpretations of the word ?repeatedly? as used in Section 17(a) ofthe Act. The appraisal of the Congressional intent is best described by theThird Circuit in Bethlehem SteelCorporation v. OSHRC, et al, 540 F.2d 157 (1976):??????????? Thefollowing discussion of ? 666(a) by the Commission in an earlier case setsforth what we believe to be an appropriate starting point for the developmentof a workable definition of ?repeatedly?:?As a starting point, it should beobserved that the size of a penalty that can be imposed for a ?repeated?violation is ten times that for a singular ?serious? violation. Hence, it isobvious that Congress intended to deal with a more flagrant type of conductthan just a single serious violation. Cf. Frank Irey, Jr., Inc. v. OSHRC, . . .which discusses ?willful? violations of the Act. These are grouped with?repeated? violations as being the most severe in the hierarchy of civilpenalties. The term ?repeated? is therefore read to mean happening more thanonce in a manner which flaunts the requirements of the Act. With a test ofwhether the requirements of the Act are being flaunted it cannot be saidabstractly just how many places of employment or conditions of employmentshould be considered. Each case must be decided upon its own merits and turnupon the nature and extent of the violations involved.? (Footnote omitted.)???????????? Thus,as the Circuit Court correctly observed, the Review Commission had previously(in Secretary of Labor v. GeneralElectric Company, OSHRC Docket No. 2739, CCH OSHD para. 19,567 (1975))agreed that ?it is obvious that Congress intended [in describing a ?repeated?violation] to deal with a more flagrant type of conduct . . . which flaunts therequirements of the Act.?[27]??????????? It ismost significant that both the Commission and the Circuit Court agreed thateach case must be decided upon its own merits and turn upon the nature andextent of the violations involved.[28] Thus, considering the?merits? of this case, the ?nature and extent of the violations involved? and?the degree of care of [this] employer in [its] efforts to prevent violations ofthe type involved,? I find as a matter of fact and law that the violationslisted in Citations Nos. 4, 5, 6, 7 and 8 were not ?repeated? violations withinthe meaning of Section 17(a) of the Act.??????????? The?nature and extent? of the violations charged and, indeed, the ?degree of careof the employer? must be measured by all of the facts adduced. It issignificant, as Respondent argues, that ?[o]f the 2.9 million board feet ofstaging (Tr. 555), the only alleged violations were eight items listed inCitation No. 4,? ?the nine items in question [in Citation No. 5]? and themissing toeboards at five locations as described in Citation No. 6. Likewise,?[o]f the thousands of construction holes on board Hull 4645 (Tr. 199, 617,810)? only seven were found to be unguarded or uncovered. The 15 ?housekeeping?violations charged in Citation No. 8 do not evidence a ?nature and extent . . .which flaunts the requirements of the Act? (Secretaryof Labor v. General Electric Company, supra).??????????? Theviolations listed in Citations Nos. 4, 5, 6, 7 and 8 have been characterized byComplainant as ?repeat? [sic], but no determination regarding the ?serious? or?other-than-serious? nature of these conditions has been made.??????????? As toeach instance describe in Citations Nos. 4, 5, 6 and 7 the evidencesubstantiates a finding of serious violation. The employees exposed to thefalling hazards which formed the bases for Citations Nos. 4 and 5 doubtlesswould have sustained serious physical harm or death in the event of anaccident. The surfaces below to which employees might have fallen were 7 to 49feet from where employees worked. The tools and material described in CitationNo. 6 weighed (by Respondent?s estimates) from 15 to 45 pounds. Had these itemsbeen kicked from the unguarded staging, resulting serious physical harm ordeath certainly could have resulted. Likewise, a fall into or through theunguarded openings described in Citation No. 7 would more than likely havecaused serious physical harm.??????????? Thebreaches of the ?housekeeping? standard set forth in Citation No. 8 could havecaused injury to employees?in the event of a tripping or falling hazard?but thelikely result of such an accident cannot be considered to be serious physicalharm or death. Those violations can best be described as ?other-than-serious.???????????? Penalties??????????? Complainanthas recommended that the following penalties be assessed: Citation No. \u00a0 Item \u00a0 Proposed Penalty \u00a0 1 \u00a0 1 \u00a0 $ 90 \u00a0 \u00a0 \u00a0 2 \u00a0 0 \u00a0 \u00a0 \u00a0 3 \u00a0 75 \u00a0 \u00a0 4 \u00a0 75 \u00a0 \u00a0 \u00a0 5 \u00a0 100 \u00a0 \u00a0 \u00a0 6 \u00a0 60 \u00a0 2 \u00a0 1 \u00a0 1,000 \u00a0 3 \u00a0 1 \u00a0 1,000 \u00a0 4 \u00a0 1 \u00a0 2,000 \u00a0 5 \u00a0 1 \u00a0 2,000 \u00a0 6 \u00a0 1 \u00a0 2,000 \u00a0 7 \u00a0 1 \u00a0 2,000 \u00a0 8 \u00a0 1 \u00a0 400 \u00a0 9 \u00a0 1 \u00a0 400 \u00a0 \u00a0 \u00a0 Total \u00a0 $11,200 \u00a0 \u00a0??????????? Thepenalty proposals set forth for the ?nonserious? violations described inCitations Nos. 1 and 8 are well founded and, according to the evidence, were calculatedwith due regard for the criteria set forth in Sections 17(c) and 17(j) of theAct.??????????? Section17(b) of the Act mandates a penalty of not more than $1,000 for each seriousviolation, and the assessment of penalties shall be made with due considerationfor the size of Respondent?s business, its good faith and the history of itsprevious violations.??????????? Respondentis the Nation?s second largest steel producer. The size of its businesswarrants no favorable financial consideration in the assessment of penalties.??????????? Therecord in these proceedings clearly establishes the fact that the ?good faith?of Respondent (insofar as its Sparrows Point Shipyard is concerned) leaves muchto be desired if the employees there are to be assured safe and healthfulworking conditions. The parent firm doubtless encourages a ?good faith?attitude toward the safety and health of its employees; however, the recorddemonstrates much needs to be done to convince the bottom-line foremen andsupervisors at this facility of the importance of this goal and the seriousintent of management.??????????? Therecorded history of violations at the Sparrows Point Shipyard for the periodNovember, 1973 to June, 1975, reveals a compliance posture which can bedescribed as barely tolerable. (See Joint Stipulation No. 1.) Respondent canhardly claim a penalty consideration on the basis of its history.??????????? Thegravity (danger or threat) of the violations described in Citations Nos. 2through 7 is relatively substantial. Each condition posed a threat of seriousinjury, perhaps death. The likelihood of such an accidental injury by reason ofthe violative conditions was exacerbated by the number of occurrences. In all60 separate instances of violation are described in Citations Nos. 2, 3, 4, 5,6, 7 and 8.??????????? Givingdue consideration to all the criteria set forth in Section 17 of the Act, a$1,000 penalty for the violations described in Citations Nos. 2 through 7 isnot inappropriate.FINDINGS OF FACT??????????? A preponderanceof the probative evidence of record, taken in its entirety, compels thefollowing findings of fact:??????????? 1.Respondent, Bethlehem Steel Corporation, is a Delaware corporation which ownsand operates a shipyard at Sparrows Point, Maryland.??????????? 2.Respondent employs employees in the business of steel manufacture, steelerection, shipbuilding and ship repair which is carried on throughout theNation with the use of goods, materials and equipment from extrastate sources.??????????? 3.Respondent, one of the largest independent steel manufacturing firms in theUnited States, employs approximately 100,000 employees and grosses in excess of$2 billion annually.??????????? 4.During June and July 1976, Respondent maintained its principal office atBethlehem, Pennsylvania and was engaged in shipbuilding operations at a worksite at Sparrows Point, Maryland.??????????? 5.During June and July 1976, Respondent employed approximately 4,000 employees atthe aforementioned work site.??????????? 6.Respondent?s compliance status since enactment of the Act compares favorablywith other employers in the steel industry, but the record discloses numerousviolations; its ?good faith? attitude regarding the safety and health of itsemployees at Sparrows Point can be questioned.??????????? 7. Onor about June 24, 1976, Respondent?s employees were exposed to the hazard offalling from staging which was not maintained in a safe condition.??????????? 8. Onor about June 24, 1976, Respondent?s employees were exposed to the hazard ofelectrocution or burning as the result of having to work with equipment poweredwith exposed electrical parts, worn and frayed electrical cables and cableswith poorly insulated splices.??????????? 9. Onor about June 24, 1976, Respondent?s employees were required to work onelevated decks, platforms, staging and similar surfaces the edges of which wereunguarded, and they were thus exposed to failing hazards.??????????? 10.On or about June 24, 1976, Respondent?s employees were required to work belowsuspended staging which was not equipped with toeboards to prevent tools andmaterials thereon from being kicked or knocked to the areas below; and theemployees were thus in danger of being struck by such falling objects.??????????? 11.On or about June 24, 1976, Respondent?s employees were required to work nearunguarded or uncovered manholes and similar openings and were thus exposed tofalling hazards.??????????? 12.On or about June 24, 1976, Respondent?s employees were exposed to tripping andfalling hazards because of an excessive accumulation of pipe, tubing, anddebris in work areas and passageways at the work site.??????????? 13.On or about June 24, 1976, Respondent?s employees were:??????????? a.permitted to use stairways which were not equipped with railings;??????????? b.permitted to use a chain fall which was not marked as to its capacity; and??????????? c.permitted to use scaffolding, the planking of which extended four feet beyondthe supporting member.CONCLUSIONS OF LAW??????????? 1.Jurisdiction of the parties and of the subject matter herein is conferred uponthe Occupational Safety and Health Review Commission by Section 10(c) of theAct.??????????? 2. Atall times relevant hereto, Respondent was an employer engaged in businessaffecting commerce within the meaning of Section 3(5) of the Act and as suchwas subject to the requirements of Sections 5(a)(1) and 5(a)(2) of the Act.??????????? 3. Onor about June 24, 1976, Respondent violated the provisions of Section 5(a)(1)of the Act; and it violated Section 5(a)(2) of the Act by failing to complywith the safety standards codified at 29 CFR 1910.24(h), 1916.64(a),1916.41(h)(3), 1916.41(a)(5), 1916.43(c), 1916.41(i)(1), 1916.41(i)(5),1916.43(a), and 1916.51(a) as charged by Complainant in Citations Nos. 1, 2, 3,4, 5, 6, 7 and 8 (dated July 23, 1976).??????????? 4.The violations charged by Complainant in Citation No. 1 (Items 1, 2 and 5) andin Citation No. 8 were ?other than serious? as defined in Section 17 of theAct.??????????? 5. Theviolations charged by Complainant in Citations Nos. 2, 3, 4, 5, 6 and 7 were?serious? as defined in Section 17 of the Act.??????????? 6.The violation charged by Complainant in Item 6 of Citation No. 1 was deminimis.??????????? 7.None of the violations charged by Complainant in the citations issued on July23, 1976, was ?repeated? as defined in Section 17 of the Act.??????????? 8.The penalties assessed herein for the aforesaid violations were computed withdue consideration of the criteria set forth in Section 17 of the Act and are asfollows: Citation No. \u00a0 Item \u00a0 Penalty \u00a0 1 \u00a0 1 \u00a0 $ 90 \u00a0 \u00a0 2 \u00a0 0 \u00a0 \u00a0 5 \u00a0 100 \u00a0 2 \u00a0 1(a) through 1(h) \u00a0 1,000 \u00a0 3 \u00a0 1(b) through 1(h) \u00a0 1,000 \u00a0 4 \u00a0 1(a) through 1(h) \u00a0 1,000 \u00a0 5 \u00a0 1(a) through 1(i) \u00a0 1,000 \u00a0 6 \u00a0 1(a) through 1(e) \u00a0 1,000 \u00a0 7 \u00a0 1(a) through 1(g) \u00a0 1,000 \u00a0 8 \u00a0 1(a) through 1(o) \u00a0 400 \u00a0 \u00a0 Total Penalties \u00a0 $6,590 \u00a0 \u00a0ORDER??????????? Uponconsideration of the aforegoing findings and conclusions, it is hereby ORDEREDthat??????????? CitationNo. 1 (Items 1, 2 and 5), Citation No. 2 (Items 1(a) through 1(h)), CitationNo. 3, (Items 1(b) through 1(h)), Citation No. 4, (Items 1(a) through 1(h)),Citation No. 5, (Items 1(a) through 1(i)), Citation No. 6, (Items 1(a) through1(e)), Citation No. 7, (Items 1(a) through 1(g)), and Citation No. 8 (Items1(a) through 1(o)) all issued to Respondent by Complainant on July 23, 1976,are AFFIRMED as ?serious? or ?other than serious violations;? Citation No. 1,(Item 6) is AFFIRMED as a ?de minimis? violation; and Citation No. 1 (Items3(a), 3(b), 3(c) and 3(d), 4(a) and 4(b)), Citation No. 3 (Item 1(a)) andCitation No. 9 (Items 1(a), 1(b) and 1(c)), issued to Respondent by Complainanton July 23, 1976, are VACATED; and a total penalty of $6,590 is ASSESSED.?BENJAMIN G. USHERJudge, OSHRCDated: January 9, 1978?Hyattsville, Maryland \u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?3674 \u00a0 BETHLEHEM STEEL CORPORATION, and LOCAL 33, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 January 11, 1978DECISION AND ORDERAPPEARANCES:Howard K. Agran, Esq. Office of the RegionalSolicitor U. S. Department of Labor Philadelphia, Pennsylvania for Complainant.\u00a0Murray N. Shelton, Jr., Esq. LaborAttorney Bethlehem Steel Corporation Bethlehem, Pennsylvania for Respondent\u00a0Mr. Murphy ThrontonPresident, Local 33I.U.M.S.W.A.Baltimore, Marylandfor Affected Employees\u00a0USHER, Judge:??????????? Thisis a proceeding initiated by the Secretary of Labor, United States Departmentof Labor, pursuant to Section 10(c) of the Occupational Safety and Health Actof 1970 (29 U.S.C. 651, et seq., hereinafter referred to as the Act) seekingaffirmance by the Commission of three Citations which charge three?non-serious? violations, one ?serious? violation and 12 ?repeated? violationsof Section 5(a)(2) of the Act, and seeking further to have the Commissionassess penalties for these alleged violations totaling $14,325.??????????? TheCitations resulted from an inspection of a work site maintained by Respondentaboard a 265,000 ton supertanker (?Hull 4645?) which was being constructed in a?wet dock? at Respondent?s Sparrows Point (Maryland) Shipyard. The inspectionby Complainant?s agents, Compliance Safety and Health Officers (?CSHOs?) fromthe Baltimore office of the Occupational Safety and Health Administration(?OSHA?), was initiated to determine whether abatement of previously citedhazards had been accomplished.[29] The inspection wascommenced on August 3 and concluded on August 6, 1976. Officials ofRespondent?s safety department and several union representatives accompaniedthe CSHOs during the physical inspection of the workplace.??????????? Respondentfiled a timely Notice of Contest which placed in issue all of the Citations aswell as Complainant?s Notification of Proposed Penalties. A Complaint andAnswer followed pursuant to the Commission?s Rules of Procedure.??????????? Theissues were tried before me at Baltimore, Maryland, on February 14, 15 and 17,1977.??????????? Theaffected employees? representative (?The Union?) elected party status throughits Executive Secretary, James C. Harmon, on January 21, 1977, and evidence wasadduced at the trial by Complainant, Respondent and the Union.??????????? Complainantand Respondent have submitted Post Trial Briefs. The Union has not.The IssuesThe pleadings, evidence adduced by the parties,arguments of counsel and the briefs submitted subsequent to the trial haveserved to raise the following issues.[30]??????????? 1.Whether evidence adduced by the Union should be stricken.??????????? 2.Whether Respondent committed any or all of the violations alleged byComplainant;??????????? a.whether the acts and omissions of Respondent, which are asserted as violativeof the provisions of the Act, were ?isolated incidents . . . considering thedimensions of the ship, the number of employees working on it and their variedand changing activities and the consequent number of potential violations;???????????? b.whether lack of knowledge of the alleged violative conditions by Respondent?ssupervisory personnel precludes a finding of violation;??????????? c.whether the employees? alleged failure to abide by safety rules promulgated byRespondent absolves Respondent.??????????? 3. IfRespondent has violated the Act in any or all of the instances charged byComplainant, whether the violations are properly classified as ?repeated,??serious? or ?other than serious,? as defined in Section 17 of the Act.??????????? 4. IfRespondent has violated the Act in any or all of the instances charged byComplainant, what penalty or penalties are appropriate when due considerationis given to the size of Respondent?s business, the gravity of the violations,Respondent?s good faith attitude regarding the safety and health of itsemployees, and the history of Respondent?s compliance or noncompliance with theprovisions of the Act.Evidence Adduced by Affected Employees?Representative??????????? Respondenthas moved to strike ?all testimony adduced by [the Union] and argues that itshould ?not be considered in the deliberations covering this case.? Itsargument rests on the theory that Section 10(c) of the Act ?limits employeecontests to the reasonableness of the period of time which is fixed in thecitation for abatement [and] not only did [the Union] not charge a failure ofabatement, in fact abatement was effected shortly after the issuance of theCitation in each and every item covered by the Citation.???????????? Section10(c) of the Act provides, in pertinent part:If an employer notifies the Secretary thathe intends to contest a citation issued under section 9(a) or notificationissued under subsection (a) or (b) of this section, or if, within fifteenworking days of the issuance of a citation under section 9(a), any employee orrepresentative of employees files a notice with the Secretary alleging that theperiod of time fixed in the citation for the abatement of the violation isunreasonable, the Secretary shall immediately advise the Commission of suchnotification, and the Commission shall afford an opportunity for a hearing . …??????????? Therules of procedure prescribed by the Commission shall provide affectedemployees or representatives of affected employees an opportunity to participate as parties to hearings underthis subsection. (Emphasis added.)??????????? TheCongressional intent is clearly set forth in the Act. That provision of thelaw, taken in conjunction with the legislative history, leaves no doubt thataffected employees shall be given an opportunity to participate as parties inany action brought pursuant to ?this subsection? (Section 10(c)) whetherinitiated by an employer, affected employees or by a representative of affectedemployees.??????????? Respondentcites Secretary of Labor v. OCAW (MobilOil Corporation), OSHRC Docket No. 562, 1 BNA OSHC 1104; Secretary of Labor v. UAW Local 588 (FordMotor Company), OSHRC Docket No. 2786, 4 BNA OSHC 1243; and Secretary of Labor v. U. S. SteelCorporation, OSHRC Docket Nos. 2975, 4349, 4684, 14999, 4 BNA OSHC 2001 insupport of its position. Those decisions stand for entirely differentpropositions. None are apropos here.??????????? Inthis instance the Union?s participation as a party was full and complete. Itwas, indeed, helpful to the trier of fact and was clearly within the intent ofCongress as expressed in no uncertain terms in Section 10(c) of the Act.[31]??????????? Respondent?smotion to strike evidence adduced by the Union is denied.Discussion and Evaluation of the Evidence??????????? CitationNo. 1??????????? Thecited standard (codified at 29 CFR 1916.41(a)(5)) requires the maintenance ofscaffolds ?in a safe and secure condition,? and it is alleged that scaffoldingin the #3 starboard wing tank was not fully planked so that it abutted thebulkhead. According to the evidence, there was an 18-inch gap which allowed fora 50-foot fall by a welder and an electrician who were observed working on thescaffold.??????????? Respondent?sevidence does not serve to rebut the factual assertions made by Complainant.Rather, Respondent argues that the standard in question does not require thatscaffolding abut the bulkhead. Respondent argues that it is impossible tocomply with the standard because of the need for an access area through whichto pass necessary materials. Respondent further asserts that it would create a greaterhazard to cut the staging boards to allow such access. These defenses are notsupported by the evidence adduced. The ?impossibility of performance? and?greater hazard? defenses must be affirmatively proven by Respondent. (Dorey Electric Company v. OSHRC, 553F.2d 357 (4 Cir. 1977)). Its burden has not been met.??????????? Thestandard requires the maintenance of scaffolds in a ?safe… condition.?Scaffolds with 18-inch gaps or openings into which an employee might step (andfall 50-odd feet) are not ?safe.???????????? Respondent?sargument that the one scaffold violation cited represents an ?isolatedinstance? inasmuch as there are ?many millions of board feet of staging? on theship may have merit, but it does not excuse the violation or otherwiseeliminate the hazard as charged.??????????? CitationNo. 2, Items 1(a), 1(b), 1(c) and 1(d)??????????? Complainanthas charged four violations of the safety regulation codified at 29 CFR1916.41(i)(1) which requires the guarding (by standard guardrail) of suspendedscaffolds, staging, runways and working platforms.??????????? Thefour locations described in the citation were in the forward fuel oil tank andthe port fuel oil tank. In two locations, according to the evidence, employeesworking on the unguarded staging were exposed to 60-foot falls. One of theunguarded scaffolds was 23 feet above the next lower surface, and the fourthplatform (staging) presented a 6-to-10 foot falling hazard, according to thetestimony of Complainant?s witnesses. Complainant asserts that two of thesuspended working surfaces were totally unguarded while the others (describedin Items 1(b) and 1(d)) were equipped with inadequate railings.??????????? Respondentargues that it has a policy of providing proper railings for all workingsurfaces suspended five or more feet above solid surfaces, and that in the four?isolated instances? cited by Complainant the railings had either been removed?to permit . . . employees to complete their job? or ?for materials to bepassed to employees working on the job.? It is also suggested, though not proven,that the guardrails were removed by unauthorized employees ?contrary toestablished yard policy.???????????? Respondenthas also put forth the ?supposition that the handrailing [in one instance]could have been removed shortly before the inspection without supervisoryknowledge.???????????? Inaddition to the ?isolated instance? defense, Respondent argues that employerknowledge (through its supervisory personnel) has not been proven in eachinstance.??????????? Basically,Respondent has not locations identified, and their by Complainant that thesuspended platforms or scaffolds lacked guardrails, but rather has denied thatthe platforms were working surfaces and contends that, therefore, employeeswere not exposed to falling hazards.??????????? Complainant?sproof established the violations. Employees were observed working in each ofthe four locations identified, and their exposure to the falling hazards hasbeen shown.??????????? CitationNo. 2, Items 2(a), 2(b) and 2(c)??????????? Respondentis charged with having allowed its employees to be exposed to falling hazardsby reason of their working on unguarded flats or platforms which were 13 to 60feet above the next lower surface. The CSHO testified that he observed fournamed employees working under such hazardous conditions in the forward fuel oiltank and in the #7 center tank of the ship on August 3, 1976. In one instance,the unguarded working surface was only five feet wide.??????????? Respondentargues that there was evidence that guardrails had been installed at the threelocations in question, but had been removed (perhaps ?rather recently?) beforethe inspection. Respondent has reasserted its contention regarding thecompany?s policy that employees are not allowed to work on unguarded raisedplatforms and denies supervisory knowledge of the cited conditions. Finally,Respondent contends that these instances of violation of the standard (29 CFR1916.43(c)) are ?isolated instances? because ?only three alleged violationswere cited out of the infinite number of possibilities . . ..???????????? Significantly,Complainant?s assertion that the cited conditions existed at the time of theinspection has not been refuted. While there may well be merit to the somewhatextenuating circumstances pleaded by Respondent, the violations have beenproved.??????????? CitationNo. 2, Items 3(a) and 3(b)??????????? Thesafety standard codified at 29 CFR 1916.41(i)(5) requires:When necessary, to prevent tools andmaterials from falling on men below, toeboards of not less than 1 x 4 inchlumber shall be provided.???????????? Respondentemphasizes ?when necessary? and argues 1) employees ?are not required to workunderneath each other,? and 2) employees working on such surfaces areinstructed to remove scrap material and tools. Complainant?s charge that at twolocations aboard Hull 4645 employees were in fact observed working belowstaging on which there were pieces of discarded flat bar and scrap isunrefuted. The staging was not equipped with toeboards and the hazard has beenestablished. The wearing of hardhats (an additional defense asserted byRespondent) may reduce that hazard, but the elimination of the hazard can beeffected only by compliance with the cited standard.??????????? Respondent?spractice of requiring employees to remove tools and scrap material fromoverhead scaffolds and platforms is creditable. Nevertheless, that practice wasnot followed at the described locations on the day in question, and employeeswere observed working ?underneath each other? while materials remained on theoverhead surfaces. The use of toe-boards was, therefore, ?necessary.???????????? Respondentargues at length that ?further hazards would be created by requiring thetoeboarding of all staging . . . because toeboard would be piled on the stagingwhile installation was taking place . . ..? The ?greater hazard? defense is anaffirmative one (Dorey Electric Companyv. OSHRC, supra.), and Respondent did not meet its burden of proof. Theaccumulation of ?huge bundles? of toeboards in work areas clearly need notoccur. The erection of toeboards as required by the standard, while perhaps aninconvenience, can certainly be accomplished in a safe manner as is presumablythe erection of the staging itself.??????????? CitationNo. 2, Item 4??????????? Complainanthas charged a ?housekeeping? violation because of the accumulation of ?scrapmaterial, piping and staging boards? in a work area or passageway in theforward fuel oil tank. A welder employed by Respondent testified that he wasrequired to work in the mist of the rubble which, according to the witness, hadbeen allowed to remain in place for more than a week.??????????? Respondentdefends by asserting that the accumulation of scrap pipe resulted from ?wilfull[sic] damage? by employees who cut usable pipe and pilled it where it was foundby the CSHO. That assertion, while not effectively contradicted, was likewisenot proven to a certainty.??????????? Respondentdenies supervisory knowledge of the existing condition, but that assertion iseffectively countered by the testimony of the employee who stated that hissupervisor did in fact have knowledge.??????????? Likewise,Respondent?s argument that the area was not a work area or passageway isadequately rebutted by employee testimony.??????????? Theargument that the described condition was an ?isolated instance? does, however,merit consideration.??????????? CitationNo. 2, Item 5??????????? TheCSHO testified that he observed an employee walking within several feet of apartially unguarded opening in violation of the safety standard codified at 29CFR 1916.43(a). The hazard, an eight-foot fall through the hold, was described.??????????? Respondent?switness testified that the opening was ?partially guarded,? an obviousadmission that it was partially unguarded as charged. The plant safety engineerfurther testified that there was ample room to pass the opening without fallinginto it. In other words, an employee need not walk into the hole. These assertionsdo not effectively deny the violation or the existence of the hazard.??????????? Thefact that Respondent does have an affirmative policy of covering constructionholes is not disputed. Likewise, its argument that only one of ?thousands ofconstruction holes? aboard Hull 4645 was found uncovered is entitled toconsideration. Those facts do not, of course, eliminate the violation on the?isolated instance? theory as Respondent contends.??????????? CitationNo. 2, Item 6??????????? Thesafety standard codified at 29 CFR 1916.42(a)(3) requires, in pertinent part,that:[p]ortable ladders shall be lashed,blocked or otherwise secured to prevent their being displaced . . .\u00a0??????????? TheCSHO testified that one of Respondent?s electricians used a ladder in theforward fuel oil tank on Hull 4645, and he ?thinks [it] became displaced, [andhe] had to jump clear over it.?[32] The witness continued(seemingly) to speculate that the ladder was lashed on only one side.??????????? TheCSHO?s testimony is contradicted by one of Respondent?s safety engineers, RichardBruce Hibler, Mr. Hibler was present at the time the CSHO inspected the ladderin question, and he ?saw that it was [properly] lashed.? His testimony is quitepositive. Compared with that of the CSHO (as to the condition of this ladder),it is considerably more credible.??????????? Complainanthas failed to prove the charged violation.??????????? CitationNo. 3, Items 1(a), 1(b) and 1(c)??????????? Thesafety standard codified at 29 CFR 1916.36(b)(4) requires that ?welding cablesin poor repair not be used.? The unrefuted testimony of Respondent?s Supervisorof Safety and that of its Temporary Light Department Supervisor establishedthat the cables referred to in Items 1(b) and 1(c) were not welding cables.They were electrical cables being used to power a ventilation fan and other electricalequipment. Respondent argues that the cited standard is inapplicable. It is.??????????? Complainanthas not sought to amend the Citation. Respondent was prejudiced by havingprepared to defend a charge brought under a safety standard which has differentrequirements than that dealing with electrical power cables.??????????? Accordingto the testimony the cable described in Item 1(a) of Citation No. 3 was in facta welding cable. The CSHO and two of Respondent?s employees testified regardingthe ?poor repair? of the cable. Bare conductors were exposed, and the cablearcked to the metal deck when an employee stepped upon it.??????????? Respondent?sassertion that the defect was ?not obvious? to supervisory personnel is notpersuasive. An improved inspection system would doubtless disclose all suchhazardous conditions.??????????? Respondentargues that ?of the 150,000 feet of welding cable on Hull 4645 only one defectwas found.? That argument is entitled to considerable weight. The maintenancepolicy for the repair of welding cable would appear to be relatively effective.??????????? EmployerKnowledge of Hazardous Conditions; Employee Misconduct; Isolated Instances??????????? It isnow well settled that employer knowledge is an essential element of a?non-serious? violation as well as a ?serious? violation.[33] Complainant has theburden of proving that Respondent through its supervisory personnel knew orshould have known of the violative conditions to which its employees wereexposed.[34]In the absence of proof of actual knowledge, constructive knowledge by the employermay be shown by evidence of the lack of an adequate safety program or by ashowing that an adequate safety program is inadequately enforced.[35]??????????? If,as Respondent contends, ?many of the alleged violations . .. existed withoutsupervisory knowledge or control,? its safety program must be scrutinized todetermine whether that fact is attributable to a failure on the part ofsupervisory personnel to use due diligence to detect safety violations.According to the evidence elicited from Respondent?s Safety Engineer, RichardBruce Hibler, on cross examination, a supervisory employee supervises eight toten hourly employees. He sees each employee and his working conditions abouttwice each day.[36]From that testimony it is difficult to conclude that the employer?srepresentatives would not be aware of such obvious conditions as missingguardrails, staging planks, and toeboards, or uncovered floor openings, strewncables and hoses, and the like. The witness stated that the supervisor ?shouldand he probably would know . . . where the man is working, what the locationlooks like.???????????? Inassessing the employer?s knowledge of the violations, or lack thereof, itsgeneral safety program, the implementation and effectuation of that program,and the feasible precautionary steps taken to prevent the hazards must beconsidered.??????????? Whileit might be inferred from the record as a whole that this corporate Respondentdoes in fact have a genuine concern for the safety and health of its employees,there is clearly a doubt whether that corporate concern has found viability atthe Sparrows Point Shipyard. The considerable testimony adduced by (and from)the hourly employees creates such a doubt. Respondent has attempted to placemuch of the blame for unsafe conditions upon the employees and theirrepresentative (the Union). The Union and its members have refuted Respondent?sassertion in that regard. (See Secretaryof Labor v. Butler Lime and Cement Company, supra, at 1017).??????????? Ifind as a matter of fact that the management at Sparrows Point has not done allthat is possible to effect the corporate safety program. Its witnessestestified at length regarding safety at the shipyard. That testimony resembledrote. It was contradicted in some respects by the patent facts adduced byComplainant and in almost every respect by the employees? testimony.??????????? Thetestimony of Respondent?s witnesses concerning the distribution of safetymanuals to employees and the testimony relating to safety conferences withemployees (?safety audits? and ?employee-supervisory contacts?) was discreditedin large measure.??????????? Accordingto the record evidence, Respondent?s safety program is basically a paperprogram. Proper implementation and effectuation at Sparrows Point are needed.??????????? Respondenthas failed to prove a ?lack of supervisory knowledge or control? of thehazardous conditions, and the ?isolated instance? defense must fall when allthe facts are weighed.??????????? Violations??Serious,??Other-than Serious,? ?Repeated???????????? Theviolation charged in Citation No. 3 (Item 1(a)) was asserted as a ?non-serious?violation because it presented no substantial probability of resulting death orserious physical harm in the event of an accident caused by the describedconditions (Sections 17(c), 17(k) of the Act). The proof substantiates thatcharge.??????????? CitationNo. 1 contains a charge of ?serious? violation of the Act. According to therecord the condition described in that charge did present a substantialprobability of death or serious physical harm in the event of an accident. Thusthe ?serious? nature of the violation has been established.??????????? Elevenviolations are asserted in Citation No. 2 (excepting Item 6(a)). Complainanthas cited two or more previous violations of each of the Safety standards setforth in Citation No. 2, viz., 29 CFR 1916.41(i)(1), 1916.41(i)(5), 1916.43(a),1916.43(c), 1916.51(a).[37] Thus, the violationscharged in Citation No. 2 are characterized by Complainant as ?repeated.?[38]??????????? TheReview Commission and the Courts of Appeals have expressed confusinglydifferent interpretations of the word ?repeatedly? as used in the Act. Oneappraisal of the Congressional intent is set forth by the Third Circuit in Bethlehem Steel Corporation v. OSHRC, etal, 540 F.2d 157 (1976):The following discussion of ? 666(a) bythe Commission in an earlier case sets forth what we believe to be anappropriate starting point for the development of a workable definition of?repeatedly?:?As a starting point, it should be observedthat the size of a penalty that can be imposed for a ?repeated? violation isten times that for a singular ?serious? violation. Hence, it is obvious thatCongress intended to deal with a more flagrant type of conduct than just asingle serious violation. Cf. Frank Irey,Jr., Inc. v. OSHRC, . . . which discusses ?willful? violations of the Act.These are grouped with ?repeated? violations as being the most severe in thehierarchy of civil penalties. The term ?repeated? is therefore read to meanhappening more than once in a manner which flaunts the requirements of the Act.With a test of whether the requirement of the Act are being flaunted it cannotbe said abstractly just how many places of employment or conditions ofemployment should be considered. Each case must be decided upon its own meritsand turn upon the nature and extent of the violations involved. (Footnoteomitted.)???????????? Thus,as the Circuit Court correctly observed, the Review Commission had previously(in Secretary of Labor v. GeneralElectric Company, OSHRC Docket No. 2739, CCH OSHD para. 19,567 (1975))agreed that ?it is obvious that Congress intended [in describing a ?repeated?violation] to deal with a more flagrant type of conduct . . . which flaunts therequirements of the Act.?[39]??????????? Asrecently as October 25, 1977, the Review Commission failed to agree as to themeaning of ?repeatedly.? Commissioner Barnako would evaluate Respondent?s goodfaith; Chairman Cleary presumably would not (Secretary of Labor v. Seattle Stevedore Co., OSHRC Docket Nos.9114, CCH OSHD para. 22,277).??????????? It ismost significant that the Commission and the Circuit Court have agreed thateach case must be decided upon its own merits and turn upon the nature andextent of the violations involved.[40] Considering the ?merits?of this case, the ?nature and extent of the violations involved? and ?the degreeof care of [this] employer in [its] efforts to prevent violations of the typeinvolved,? I find as a matter of fact and law that the violations listed inCitation No. 2 were not ?repeated? violations within the meaning of Section17(a) of the Act.??????????? The?nature and extent? of the violations charged and, indeed, the ?degree of caseof the employer? must be measured in light of all the facts adduced. It issignificant, as Respondent argues, that ?[i]n view of the numerousopportunities for possible violations that are inherent in the construction ofa ship . . . the relative handful of alleged violations actually cited by theComplainant do not constitute constant or frequent violations . . ..? The 13violations proved here do not evidence a ?nature and extent . . . which flauntsthe requirements of the Act? (Secretaryof Labor v. General Electric Company, supra).??????????? Theviolations listed in Citation No. 2 have been characterized by Complainant as?repeated,? but no determination regarding the ?serious? or ?other-than-serious?nature of these conditions has been made.??????????? Eachof the conditions described in Items 1(a) though 1(d) and in Items 2(a) through2(c) presented the hazard of a fall from scaffolding, staging or other raisedor suspended surfaces. In three of the instances falls from 60-foot heights tohard surfaces below might have occurred; from one of the locations an employeecould have fallen in excess of 20 feet; two of the unguarded platforms weredescribed as 13 feet above the next lower surface; and one staging area was sixto ten feet high. In the event of a fall from any of these locations seriousphysical harm would likely result. A fall from a height of 60 feet would mostlikely result in serious physical harm, if not in death.??????????? Theevidence regarding the conditions described in Items 3(a) and 3(b) isconsiderably vague insofar as the size, shape and weight of the scrap material(flatbar) is concerned. Likewise, the distances between the workmen below andthe loose objects above were only roughly estimated. There was thus no directtestimony or valuable opinion evidence regarding the seriousness of thepotential hazard, i.e., whether serious physical harm was or was not asubstantially probable result. The violations should, therefore, be classifiedas ?other-than-serious.???????????? The?housekeeping? violation set forth as Item 4 of Citation No. 2 was likewise notdescribed with sufficient particularity to allow for an accurate determinationas to the seriousness of the hazard presented. It will be considered as an?other-than-serious? violation.??????????? Accordingto the testimony the partially covered manhole described in Item 5 of CitationNo. 2 presented a hazard of falling eight feet to the next solid surface below.The Commission has held that a ?seven to nine-foot? fall presents the?possibility? but not a ?substantial probability? of resulting death or seriousphysical harm.[41]Giving Respondent the benefit of that precedent (while recognizing arguablycontrary conclusion), the violation will be characterized as?other-than-serious.?Penalties??????????? Complainanthas recommended that the following penalties be assessed: Citation No. \u00a0 Item \u00a0 Proposed Penalty \u00a0 1 \u00a0 1 \u00a0 $ 1,000 \u00a0 2 \u00a0 1 \u00a0 4,000 \u00a0 \u00a0 \u00a0 2 \u00a0 4,000 \u00a0 \u00a0 \u00a0 3 \u00a0 4,000 \u00a0 \u00a0 \u00a0 4 \u00a0 500 \u00a0 \u00a0 \u00a0 5 \u00a0 500 \u00a0 \u00a0 \u00a0 6 \u00a0 250 \u00a0 3 \u00a0 1 \u00a0 75 \u00a0 \u00a0 \u00a0 TOTAL $14,325 \u00a0??????????? Thepenalty proposal set forth for the ?serious? violation described in CitationNo. 1 is well founded and, according to the evidence, was calculated with dueregard for the criteria set forth in Sections 17(b) and 17(j) of the Act.??????????? Section17(b) of the Act mandates a penalty of not more than $1,000 for each seriousviolation, and the assessment of penalties shall be made with due considerationfor the size of Respondent?s business, its good faith and the history of itsprevious violations.??????????? Respondentis the Nation?s second largest steel producer. The size of its businesswarrants no favorable financial consideration in the assessment of penalties.??????????? Therecord in these proceedings clearly establishes that the ?good faith? ofRespondent (insofar as its Sparrows Point Shipyard is concerned) leaves much tobe desired if the employees there are to be assured safe and healthful workingconditions. The parent firm doubtless encourages a ?good faith? attitude towardthe safety and health of its employees; however, the record demonstrates muchneed to be done to convince its bottom-line foremen and supervisors at thisfacility of the goal and intent of management.??????????? Therecorded history of violations at the Sparrows Point Shipyard for the periodNovember 1973 to June 1975, reveals a compliance posture which can best bedescribed as average. Respondent can hardly claim a penalty consideration onthe basis of its history of compliance.??????????? Thegravity (danger or threat) of the violations described in Citation No. 2, Items1 and 2, is relatively substantial. Those conditions posed a threat of seriousinjury, perhaps death. The likelihood of such an accidental injury by reason ofthe violative conditions was exacerbated by the number of occurrences. Theconditions described in Citation No. 2, Items 3, 4 and 5 were ?non-serious? andthe gravity (exposure of employees) was less evident.??????????? Givingdue consideration to all the criteria set forth in Section 17 of the Act, a$1,000 penalty is assessed for Citation No. 1 and for Items 1 and 2 of CitationNo. 2. A $500 penalty is assessed for Item 3, Citation No. 2; and a $200penalty is assessed for Item 4 and 5, Citation No. 2. No penalty is assessedfor Citation No. 3.FINDINGS OF FACT??????????? Apreponderance of the probative evidence of record, taken in its entirety,compels the following findings of fact:??????????? 1.Respondent, Bethlehem Steel Corporation, is a Delaware corporation which ownsand operates a shipyard at Sparrows Point, Maryland.??????????? 2.Respondent employs employees in the business of steel manufacture, steelerection, shipbuilding and ship repair which is carried on throughout theNation with the use of goods, materials and equipment from extrastate sources.??????????? 3.Respondent, one of the largest independent steel manufacturing firms in theUnited States, employs approximately 100,000 employees and grosses in excess of$2 billion annually.??????????? 4.During August 1976, Respondent maintained its principal office at Bethlehem,Pennsylvania and was engaged in shipbuilding operations at a work site atSparrows Point, Maryland.??????????? 5.During August 1976, Respondent employed approximately 4,000 employees at theaforementioned work site.??????????? 6.Respondent?s compliance status since enactment of the Act compares favorablywith other employers in the steel industry, but the record discloses numerousviolations; its ?good faith? attitude regarding the safety and health of itsemployees at the Sparrows Point Shipyard can be questioned.??????????? 7. Onor about August 3, 1976, Respondent?s employees were exposed to the hazard offalling from scaffolds which were not maintained in a safe condition.??????????? 8. Onor about August 3, 1976, Respondent?s employees were required to work on elevateddecks, platforms, staging and similar surfaces the edges of which wereunguarded, and they were thus exposed to falling hazards.??????????? 9. Onor about August 3, 1976, Respondent?s employees were required to work belowsuspended staging which was not equipped with toeboards to prevent tools andmaterials thereon from being kicked or knocked to the areas below, and theemployees were thus in danger of being struck by such objects.??????????? 10.On or about August 3, 1976, one of Respondent?s employees was required to worknear a partially unguarded or uncovered manhole and was thus exposed to afalling hazard.??????????? 11.On or about August 3, 1976, Respondent?s employees were exposed to tripping andfalling hazards because of an excessive accumulation of pipe, staging boardsand scrap material in work areas or passageways at the work site.??????????? 12.On or about August 3, 1976, Respondent?s employees were exposed to the hazardof burning as the result of having to work near a welding cable with partiallyexposed current conductors.CONCLUSIONS OF LAW??????????? 1.Jurisdiction of the parties and of the subject matter herein is conferred uponthe Occupational Safety and Health Review Commission by Section 10(c) of theAct.??????????? 2. Atall times relevant hereto, Respondent was an employer engaged in businessaffecting commerce within the meaning of Section 3 (5) of the Act and as suchwas subject to the requirements of Section and 5(a)(2) of the Act.??????????? 3. Onor about August 3, 1976, Respondent violated the provisions of Section 5(a)(2)of the Act by failing to comply with the safety standards codified at 29 CFR1916.36(b)(4), 1916.41(a)(5), 1916.41(i)(1), 1916.41(i)(5), 1916.43(a),1916.43(c) and 1916.51(a) as charged by Complainant in Citation No. 1 (Item 1),Citation No. 2 (Items 1(a), 1(b), 1(c), 1(d), 2(a), 2(b), 2(c), 3(a), 3(b),4(a) and 5(a)) and Citation No. 3 (Item 1(a)) all dated August 12, 1976.??????????? 4.The violation charged by Complainant in Citation No. 1 was ?serious,? asdefined in Section 17 of the Act.??????????? 5.The violations charged by Complainant in Citation No. 2, Items 1 and 2, were?serious? as defined in Section 17 of the Act.??????????? 6.The violations charged by Complainant in Citation No. 2, Items 3, 4 and 5 andin Citation No. 3 were ?other than serious,? as defined in Section 17 of theAct.??????????? 6.None of the violations charged by Complainant in the Citations issued on August12, 1976, was ?repeated? as defined in Section 17 of the Act.??????????? 7.The penalties assessed herein for the aforesaid violations were computed withdue consideration of the criteria set forth in Section 17 of the Act and are asfollows: Citation No. \u00a0 Item \u00a0 Penalty \u00a0 1 \u00a0 1 \u00a0 $1,000 \u00a0 2 \u00a0 1(a) through 1(d) \u00a0 1,000 \u00a0 \u00a0 2(a) through 2(c) \u00a0 1,000 \u00a0 \u00a0 3(a) through 3(b) \u00a0 500 \u00a0 \u00a0 4(a) \u00a0 200 \u00a0 \u00a0 5(a) \u00a0 200 \u00a0 3 \u00a0 1(a) \u00a0 none \u00a0 \u00a0 TOTAL \u00a0 $3,900 \u00a0 \u00a0ORDER??????????? Uponconsideration of the aforegoing findings and conclusions, it is hereby ORDEREDthat??????????? CitationNo. 1 (Item 1), Citation No. 2 (Items 1(a) through 1(d), 2(a) through 2(c),3(a) and 3(b), 4(a) and 5(a)) and Citation No. 3 (Item 1(a)) all issued to Respondentby Complainant on August 12, 1976, are AFFIRMED. Citation No. 2, (Item 6), andCitation No. 3 (Items 1(b) and 1(c)) issued to Respondent by Complainant onAugust 12, 1976, are VACATED; and a total penalty of $3,900 is ASSESSED.?BENJAMIN G. USHERJudge, OSHRCDated: January 11, 1978?Hyattsville, Maryland* CommissionerBarnako did not participate in this decision.[1] Inasmuch as thesetwo cases present the same questions of law, arise out of similar facts, andstem from an inspection and follow-up inspection of the same supertanker, weconsolidate the cases for review under Commission Rule 9, 29 C.F.R. ? 2200.9.[2] Section1916.41(a)(5) states:?1916.41 Scaffolds or staging.(a)General requirements.(5)Scaffolds shall be maintained in a safe and secure condition. Any component ofthe scaffold which is broken, burned or otherwise defective shall be replaced.[3] A maxim ofstatutory construction meaning that the expression of one thing is theexclusion of another. BLACK?S LAWDICTIONARY 521 (5th ed. 1979).[4] Section1926.750(b)(1)(i) states:?1926.750 Flooring requirements.(b)Temporary flooring?skeleton steel construction in tiered buildings. (1)(i) Thederrick or erection floor shall be solidly planked or decked over its entiresurface except for access openings. Planking or decking of equivalent strength,shall be of proper thickness to carry the working load. Planking shall be notless than 2 inches thick full size undressed, and shall be laid tight andsecured to prevent movement.[5] The record doesnot support an amendment of the pleadings under Rule 15 of the Federal Rules ofCivil Procedure. Neither party has made a motion under Fed. R. Civ. P. 15(a) toallege a violation of another standard and the record does not demonstrate thata violation of another standard has been tried by the express or impliedconsent of the parties under Fed. R. Civ. P. 15(b).[6] Section1916.43(c) states:?1916.43 Guarding of deck openings and edges.(c)When employees are exposed to unguarded edges of decks, platforms, flats, andsimilar flat surfaces, more than 5 feet above a solid surface, the edges shallbe guarded by adequate guardrails meeting the requirements of ? 1916.41(i)(1)and (2), unless the nature of the work in progress or the physical conditionsprohibit the use or installation of such guardrails.[7] Section1916.41(i)(1) states:?1916.41 Scaffolds or staging.(i)Backrails and toeboards. (1) Scaffolding, staging, runways, or workingplatforms which are supported or suspended more than 5 feet above a solidsurface, or at any distance above the water, shall be provided with a railingwhich has a top rail whose upper surface is from 42 to 45 inches above theupper surface of the staging, platform, or runway and a midrail located halfwaybetween the upper rail and the staging, platform, or runway.[8] Section1916.41(i)(5) states:?1916.41 Scaffolds or staging.(i)Backrails and toeboards.(5)When necessary, to prevent tools and materials from falling on men below,toeboards of not less than 1 x 4 inch lumber shall be provided.[9] Section1916.43(a) states:?1916.43 Guarding of deck openings and edges.(a)When employees are working in the vicinity of flush manholes and other smallopenings of comparable size in the deck and other working surfaces, suchopenings shall be suitably covered or guarded to a height of not less than 30inches, except where the use of such guards is made impracticable by the work actuallyin progress.[10] Section1916.51(a) states:?1916.51 Housekeeping.(a)Good housekeeping conditions shall be maintained at all times. Adequate aislesand passageways shall be maintained in all work areas. All staging platforms,ramps, stairways, walkways, aisles, and passageways on vessels or drydocksshall be kept clear of all tools, materials, and equipment except that which isin use, and all debris such as welding rod tips, bolts, nuts, and similarmaterial. Hose and electric conductors shall be elevated over or placed underthe walkway or working surfaces or covered by adequate crossover planks.[11] Even though thiscase was heard and decided by the judge before our decision in Potlatch, we conclude that Bethlehem?sdefenses would not have been tried differently had Potlatch been issued before the hearing. Therefore we do not offerBethlehem an opportunity for a remand with respect to the repeated violations.See, e.g., Truland-Elliot, 77 OSAHRC163\/A7, 4 BNA OSHC 1455, 1976?77 CCH OSHD ? 20,908 (No. 11259, 1976).[12] The Third Circuitnoted in Babcock & Wilcox Co. v.OSHRC, 622 F.2d 1160 (3d Cir. 1980), that under the Act, an employer mayseek review in one of three circuits: the circuit in which the violationoccurred; the circuit in which the employer?s principal office is located; andin the District of Columbia Circuit. 29 U.S.C. ? 660(a). The Secretary may seekreview in the circuit in which the violation occurred or in which the employerhas its principal office. 29 U.S.C. ?\u00a0660(b). Inasmuch as Bethlehem?sprincipal office is located in the Third Circuit, Bethlehem may well appeal ourcharacterization of violations as repeated to the Third Circuit, which adopteda different definition of ?repeatedly? in BethlehemSteel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976). On the other hand, if wedecided this case adversely to the Secretary, we would expect him to appeal tothe Fourth circuit?the circuit in which the violations occurred?because thatcircuit has adopted a definition of ?repeatedly? that is congruent with that inour Potlatch decision. See George Hyman Constr. Co. v. OSHRC,582 F.2d 834 (4th Cir. 1978); Potlatch,7 BNA OSHC at 1064, 1979 CCH OSHD ?23,294 at p. 28,171.In Raybestos Friction Materials Co., 80 OSAHRC ??, 9 BNA OSHC 1141,1980 CCH OSHD ? 24,910 (No. 80?8793, 1980), we noted that the Commission, as anagency with national jurisdiction, may find it difficult to apply the law of asingle circuit where venue for an appeal would lie in several circuits. We aremindful of the Third Circuit?s definition of ?repeatedly.? In view of ourdilemma here, however, we will, as in Raybestos,follow our own precedent.[13] Section 17(j), 29U.S.C. ? 666(i), provides:TheCommission shall have authority to assess all civil penalties provided in thissection, giving due respect to the size of the business of the employer beingcharged, the gravity of the violation, the good faith of the employer, andhistory of previous violations.[14] Nine Citationswere issued. Citation No. 1 lists 12 instances of alleged violative conductwhich are characterized as ?other than serious.? These alleged violations aregrouped as nine items. Citations Nos. 2 and 3 enumerate 16 instances ofviolative conduct which Complainant asserts as ?serious? violations. They aregrouped as Items 1(a) through 1(h) in Citation No. 2 and as Items 1(a) through1(h) in Citation No. 3. Citations Nos. 4, 5, 6, 7, 8, and 9 list 47 acts oromissions which Complainant alleges as ?repeated? violations.In all, 75 separate violations arecharged.[15] See also Commission Rule 20(a); 29 CFR2200.20(a).[16] Inasmuch as anamendment of the citation is tantamount to the issuance of a new citation, theamendment is barred by the six-month limitation set forth in Section 9(c) ofthe Act.[17] If ?prejudice . .. to preparation of the opposing party?s case? is involved, the amendment isnot proper without ?a continuance? of the trial (Secretary of Labor v. All-State Industries, Inc., OSHRC Docket No. 15522,CCH OSHD para. 22,174, September 20, 1977). Considering Complainant?sdereliction in this instance and his clear duty to seek an early resolution ofthe issues raised in proceedings under the Act, he can hardly espouse delay bycontinuance.[18] Section 5(a)(1)(29 U.S.C. 654(a)(1)):Eachemployer shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing or arelikely to cause death or serious physical harm to his employees.[19] ?. . . previousknowledge of a state of facts which it was [its] duty to guard against, and[its] omission to do which has led to the [violation] complained of.? (Blacks Law Dictionary, Fourth RevisedEdition, 1968.)[20] See, e.g., Secretary of Labor v. RockwellInternational, et al., 540 F2d 1283 (6 Cir. 1976); Secretary of Labor v. OSHRC (Hendrix), 511 F2d 1139 (9th Cir.1975).[21] National Realty and Construction Company v.OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).[22] Secretary of Labor v. Butler Lime and CementCompany, supra; Ames Crane and RentalService, Inc. v. Secretary of Labor, et al., 532 F.2d 123 (8 Cir. 1976).[23] See Tr. 477, 478;but, see Respondent?s witness? testimony that a supervisor has ?an average [of]between 10 and 15? hourly employees to direct (Tr. 835).[24] Respondentasserts as a defense ?that the inspection of Hull 4645 came as an afterthoughtfollowing an inspection of Hull 4644 that revealed no violation.? I fail toperceive the merit in that contention.[25] Respondent hasbeen cited for violation of 29 CFR 1916.51(a) on three prior occasions, butonly two of the earlier citations, have become final orders of the ReviewCommission.[26] Section 17(a) ofthe Act provides that[a]nyemployer who willfully or repeatedly violates the requirements of section 5 ofthis Act, any standard, rule, or order promulgated pursuant to section 6 ofthis Act, or regulations prescribed pursuant to this Act, may be assessed acivil penalty of not more than $10,000 for each violation. (29 U.S.C. 666(a).)[27] Cf. Secretary of Labor v. Bethlehem SteelCorporation, OSHRC Docket No. 8392, CCH OSHD para. 19,996 (1975). There theCommission concluded that a second violation can constitute a ?repeated?violation regardless of the ?particular state of the employer?s mind.?[28] 15??????????? Oras the Court observed:Themere occurrence of a violation of a standard or regulation more than twice doesnot constitute that flaunting necessary to be found before a penalty can beassessed under ? 666(a). What acts constitute flaunting of the requirements ofthe Act must be determined, in the first instance, by the Secretary and theCommission . . .. Among the factors the Commission should consider whendetermining whether a course of conduct is flaunting the requirements of theAct are the number, proximity in time, nature and extent of violations, theirfactual and legal relatedness, the degree of care of the employer in hisefforts to prevent violations of the type involved, and the nature of theduties, standards, or regulations violated.[29] A related case(OSHRC Docket No. 76?3444) resulted from a June 28?July 9, 1976, inspection ofthe same ship which was then being constructed in the ?graving dock? at theSparrows Point Shipyard.[30] The record madein OSHRC Docket No. 76?3444, as well as the briefs filed therein have, by stipulationof the parties, been incorporated in this case and made a part hereof.[31] See also Commission Rule 20(a); 29 CFR2200.20(a).[32] The record doesnot disclose clearly whether the CSHO witnessed the occurrence or learned of itthrough hearsay. It is likewise not clear when the incident happened.Without objection, Complainant?scounsel asked the witness: ?. . . what do you think happened when [theemployee] used it?? The witness replied: ?The ladder became displaced.?[33] See, e.g., Secretary of Labor v. RockwellInternational, 540 F.2d 1283 (6 Cir. 1976); Secretary of Labor v. OSHRC (Hendrix), 511 F.2d 1139 (9th Cir.1975).[34] National Realty and Construction Company v.OSHRC, 489 F.2d 1257 (D. C. Cir. 1973).[35] Secretary of Labor v. Butler Lime and CementCompany, 520 F.2d 1011 (7 Cir., 1975); Secretaryof Labor v. Ames Crane and Rental Service, Inc., 532 F.2d 123 (8 Cir.1976).[36] See Tr. 380.[37] The citationsissued on prior occasions resulted from inspections on other hulls; but allprevious violations occurred at the Sparrows Point Shipyard.[38] Section 17(a) ofthe Act provides that[a]nyemployer who willfully or repeatedly violates the requirements of section 5 ofthis Act, any standard, rule, or order promulgated pursuant to section 6 ofthis Act, or regulations prescribed pursuant to this Act, may be assessed acivil penalty of not more than $10,000 for each violation. (29 U.S.C. 666(a).)[39] Cf. Secretary of Labor v. Bethlehem SteelCorporation, OSHRC Docket No. 8392, CCH OSHD para. 19,996 (1975). There theCommission concluded that a second violation can constitute a ?repeated?violation regardless of the ?particular state of the employer?s mind.?[40] Or as the Courtobserved:Themere occurrence of a violation of a standard or regulation more than twice doesnot constitute that flaunting necessary to be found before a penalty can beassessed under ? 666(a). What acts constitute flaunting of the requirements ofthe Act must be determined, in the first instance, by the Secretary and theCommission . . .. Among the factors the Commission should consider whendetermining whether a course of conduct is flaunting the requirements of theAct are the number, proximity in time, nature and extent of violations, theirfactual and legal relatedness, the degree of care of the employer in hisefforts to prevent violations of the type involved, and the nature of theduties, standards, or regulations violated. BethlehemSteel Corporation v. OSHRC, et al., (supra at 162).[41] See Secretary of Labor v. TacomaBoatbuilding Company, Inc., OSHRC Docket No. 6, 1 BNA OSHC 1309 (1973).”