“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-0982 BROWN-McKEE, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 18, 1980DECISIONBEFORE CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Henry F. Martin, Jr. is before theCommission for review pursuant to section 12(j), 29 U.S.C. ? 661(i), of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?).Judge Martin affirmed a nonserious citation alleging Respondent?s (?Brown-McKee?)noncompliance with 29 C.F.R. ? 1926.450(a)(10),[1] a serious citationalleging Brown-McKee?s noncompliance with 29 C.F.R. ? 1926.28(a),[2] and another seriouscitation alleging Brown-McKee?s noncompliance with 29 C.F.R. ??\u00a01926.500(b)(1),1926.500(b)(2), and 1926.500(b)(3).[3] He assessed a totalpenalty of $330. For the reasons that follow, we affirm the judge?s decision asmodified herein.??????????? UnsecuredLadder?29 C.F.R. ? 1926.450(a)(10)??????????? Brown-McKeewas engaged in constructing a two-story addition immediately adjacent andconnected to a three-story feed processing plant. The worksite was inspected bythe Secretary?s compliance officer. At the beginning of the walkaroundinspection the compliance officer observed two of Brown-McKee?s employees onthe roof of the addition. The compliance officer was being accompanied on theinspection by Mr. Bill Conklin, Brown-McKee?s project superintendent. The twomen proceeded to the roof of the exisitng building and then climbed down aladder to the roof of the addition. Mr. Conklin was first to climb down theladder. When he did, the compliance officer noticed that the ladder was nottied or secured. The compliance officer had someone hold the ladder before hedescended. This unsecured ladder became the basis of a citation alleging anonserious violation of the Act.??????????? Brown-McKeeargued before the judge that the Secretary failed to prove a violation of theAct for failure to comply with section 1926.450(a)(10). The company argued thatthere was no evidence that anyone other than the compliance officer and theproject superintendent used the ladder. Therefore, contended Brown-McKee, it isas reasonable to assume that the ladder had been placed on the roof for useonly after being secured as it is to assume that it had been used by employeesin its unsecured condition. The Secretary argued before Judge Martin that theexposure of the project superintendent on the walkaround inspection wassufficient to prove noncompliance with the standard. Judge Martin found thatthe ladder was not secured as required by section 1926.450(a)(10). He thereforefound Brown-McKee in nonserious violation of the Act.??????????? Onreview, Brown-McKee reiterates the arguments it made before Judge Martin, andalso contends that the judge?s findings and conclusions are not supported bythe evidence. We conclude that Brown-McKee violated the Act for failing tocomply with the standard as alleged.??????????? TheCommission has held that a violation cannot be based on the exposure of anemployer?s walkaround representative during the inspection. Bechtel PowerCo., 79 OSAHRC 34\/A2, 7 BNA OSHC 1361, 1365 n. 7, 1979 CCH OSHD ? 23,575 atp. 28,576 n. 7 (No. 13832, 1979). Therefore, the judge?s finding of noncompliancewith section 1926.450(a)(10), to the extent it is based on the exposure of Mr.Conklin during the walkaround inspection, is set aside. We conclude, however,that the citation should be affirmed based on the access to the hazard of otherBrown-McKee employees.??????????? TheSecretary need not prove that employees are actually exposed to a violativecondition in order to prove a violation of the Act. Proof that employees hadaccess to the hazard is sufficient. Otis Elevator Co., 78 OSAHRC 88\/E5,6 BNA OSHC 2048, 1978 CCH OSHD ?\u00a023,135 (No. 16057, 1978); Gilles &Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 1975?76 CCH OSHD ? 20,448(No. 504, 1976). Access is established if it shown that defective equipment isavailable for the use of employees. Bechtel Power Corp., supra, 7 BNAOSHC at 1366, 1979 CCH OSHD at p. 28,577.??????????? TheSecretary has established that the unsecured ladder was available for use byBrown-McKee?s employees in this case. The compliance officer and Mr. Conklin,by using the ladder at issue, reached an area where Brown-McKee?s employeeswere working. Thus, the evidence demonstrates that the ladder was positioned onthe jobsite between the area where Brown-McKee?s employees were working and apath of egress from that area. Brown-McKee did not present evidence thatanother means of egress was more readily available to its employees or that anysteps were taken to prevent the use of the ladder until it was secured.Accordingly, Brown-McKee has not rebutted the Secretary?s prima facie case thatit violated the Act for failure to comply with the standard at 29 C.F.R. ?1926.450(a)(10).[4]??????????? SafetyBelts and Lifeline?29 C.F.R. ? 1926.28(a)??????????? Whenhe reached the roof of the addition, the compliance officer observed anemployee of Brown-McKee bending over the edge of the roof. The employee waspulling some material up to the roof level. Another employee would normallyassist in hoisting the material, but it appears that no one was assisting theemployee being observed at the time of the inspection. The distance from theroof to the ground was approximately fifty-four feet. Immediately in front ofthe employee hoisting the material to the roof was a metal bar that extendedtwo feet horizontally out of the wall of the original building. The bar wasstrong enough to support a man?s weight. Completely surrounding the roof of theaddition was a metal parapet approximately twenty inches high. There were noguardrails around the roof?s perimeter and Brown-McKee?s employees were notprotected by the use of personal protective equipment. Brown-McKee?s projectsuperintendent was aware that the employees had been working at the edge of theroof. In the opinion of the compliance officer, a safety belt and lifelinewould have protected the employees working at the edge of the roof from thefall hazard. A citation was issued alleging a serious violation of the Act forBrown-McKee?s failure to provide safety belts and a lifeline.??????????? Brown-McKeeargued before Judge Martin that under the circumstances the Secretary failed toprove that its employees were exposed to hazardous conditions requiring the useof personal protective equipment.[5] The particularcircumstances on which the company relied were that (1) the materials beinglifted to the roof by the employees were light, (2) the employees were workingon a flat surface, (3) the employee pulling the materials up was directlybehind a steel bar that was securely attached to the original building andwhich could support a person?s weight, and (4) the roof was surrounded by atwenty-inch-high parapet, which protected the employee hoisting the materialsbecause he was working on his knees. Brown-McKee argued further that, if therewas a violation, it was not serious because the exposure of employees to thehazard was brief. This latter argument was based on the testimony ofBrown-McKee?s project superintendent that the work being performed was usuallyaccomplished with a crane that was temporarily out of service on the day of theinspection.??????????? TheSecretary argued before the judge that Brown-McKee failed to comply withsection 1926.28(a) because its employees were working near the perimeter of theroof without any protection from the hazard of a fifty-four foot fall.Regarding Brown-McKee?s contention that the steel bar protruding from theoriginal building immediately in front of the one employee helped render thesituation non-hazardous, the Secretary argued simply that the standard requiresthe wearing of personal protective equipment under such circumstances.According to the Secretary, the steel bar did not eliminate the hazard becauseit was only two feet long and did not meet the minimum requirements for a guardrail.Finally, the Secretary argued that the fact a crane was normally used to hoistmaterials provides no defense. The Secretary pointed to the testimony ofBrown-McKee?s McKee?s Director of Safety and Personnel that another crane couldhave been rented to accomplish the work being done by the employees.Brown-McKee, however, preferred to use its own crane, apparently because areplacement crane would have cost $150 per hour. The Secretary argued thatwhere, as here, there is the possibility of serious injury or death, such anexpense is justifiable.??????????? JudgeMartin found that Brown-McKee violated the Act by failing to comply withsection 1926.28(a) in that its employees on the roof were exposed to a fall offifty-four feet and were not protected by the use of safety belts andlifelines. He found that Brown-McKee?s superintendent was aware of thesituation and that a fall of this distance would result in death or seriousinjury. Accordingly, he found that the violation was serious as alleged.??????????? Onreview, Brown-McKee makes the same arguments it made before the judge. We agreewith the judge that Brown-McKee committed a serious violation of the Act byfailing to comply with the cited standard.??????????? Inorder to prove noncompliance with section 1926.28(a), the Secretary mustdemonstrate either that there is exposure to hazardous conditions or that thereis another standard in Part 1926 indicating the need for personal protectiveequipment. S & H Riggers and Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNAOSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979), appeal filed, No.79?2358 (5th Cir. June 7, 1979). In order to make out his prima facie caseunder the former test, the Secretary must prove employee exposure to ahazardous condition requiring the use of personal protective equipment and mustidentify the appropriate form of personal protective equipment to eliminate thehazard. S & H Riggers and Erectors, Inc., supra, 7 BNA OSHC at 1266,1979 CCH OSHD at p. 28,439. The test of whether a hazardous condition existswithin the meaning of section 1926.28(a). . . is whether a reasonable personfamiliar with the factual circumstances surrounding the allegedly hazardouscondition, including any facts unique to a particular industry, would recognizea hazard warranting the use of personal protective equipment.? S & H Riggers and Erectors Inc.,supra, 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436 (footnote and citationsomitted).???????????? TheSecretary sustained his burden of proof in this case. The record establishesemployee exposure to an obvious fall hazard, thereby requiring the use ofpersonal protective equipment. See, e.g., Hurlock Roofing Co., 79 OSAHRC93\/A2, 7 BNA OSHC 1867, 1871, 1979 CCH OSHD ? 24,006 at p. 29,147 (No. 14907,1979). The citation clearly refers to safety belts and lifelines as theappropriate means of protection. Moreover, the compliance officer testifiedwithout contradiction that a safety belt and lifeline would be the appropriatemethod of abatement.[6]??????????? Wealso find that the noncompliance with section 1926.28(a) is a seriousviolation. Brown-McKee?s contention that the exposure of its employees wasbrief is simply not relevant to whether the violation was serious. We have heldthat whether a violation is serious depends on the probability that death orserious harm will result from an accident, and not on the probability that anaccident will occur. Niagara Mohawk Power Corp., 79 OSAHRC 36\/A2, 7 BNAOSHC 1447, 1450, 1979 CCH OSHD ? 23,670 at p. 28,703 (No. 76?2414, 1979).[7] The record supports thejudge?s finding that the violation is serious. The violation could haveresulted in a fall of fifty-four feet, a fall that would obviously cause deathor serious harm.[8]??????????? UnguardedFloor Openings?29 C.F.R. ?? 1926.500(b)(1), (b)(2), and (b)(3)??????????? TheSecretary alleged that Brown-McKee violated the Act by failing to guard threefloor openings. Judge Martin concluded that Brown-McKee failed to comply withthe three cited standards as alleged, and found that the three violations ?whencombined? resulted in a serious violation. On review, Brown-McKee argues thatthe judge erred, raising the same arguments concerning the violations and theircharacterization as ?serious? as it made to the judge. We have carefullyreviewed the record. Judge Martin has adequately recounted the facts pertainingto the alleged violations. His findings and conclusions, with the exception ofthose concerning the serious classification of the violation, are supported bythe record and are consistent with Commission precedent. Consequently, we adoptthe judge?s decision insofar as he determined that Brown-McKee violated the Actby failing to comply with the three cited standards. Gulf Oil Co., 77OSAHRC 216\/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ? 22,737 (No. 14281, 1977). Theremainder of our discussion will concern only the classification of theviolations.??????????? Thecompliance officer testified that a fall of twenty-four feet to a concretefloor would result from a fall through the floor opening alleged in the section1926.500(b)(1) violation. He testified that such a fall could result in deathor serious physical injury, such as a broken back, broken neck, or fracturedskull. With respect to the alleged violation involving section 1926.500(b)(2),the compliance officer testified that a fall through the opening would beapproximately twelve to fourteen feet to a steel platform and that a fracture,broken neck, or death could result. Finally, the compliance officer testifiedthat the fall distance involved in the failure to comply with section1926.500(b)((3) was approximately fourteen to fifteen feet to a steel platform,and that the injuries resulting from such a fall could include broken bones, abroken neck, and a fractured skull.??????????? Brown-McKeeargued before the judge that none of the alleged violations are serious becausethe probability of an accident occurring was low. Brown-McKee bases thisargument on the facts that (1) its workforce on the job was small, (2) all ofits employees were made aware of the floor openings through weekly meetings,instruction, or personal observation, and (3) all employees were also awarethat the openings ?had to be uncovered in order to reasonably expedite thework.? Brown-McKee also argued that the alleged violation involving section1926.500(b)(2) should be nonserious because the fall hazard was to a platformmidway between the first and second floors and because of the size of theopening (twenty-nine inches by thirty inches).??????????? Althoughthe Secretary alleged that the three violations were serious when combined,[9] he argued before the judgethat each alleged violation was in itself serious because of the substantialprobability of death or serious physical injury should an accident haveoccurred at any of the three locations.??????????? JudgeMartin specifically found that the two violations involving sections1926.500(b)(1) and (b)(2) were serious. He did not make a similar finding withrespect to the violation involving section 1926.500(b)(3), but he found thatthe gravity of that violation was low because it would be unlikely for a personto stumble or fall into the opening. He concluded, however, that when the threeviolations involving sections 1926.500(b)(1), (b)(2), and (b)(3) were combined,a serious violation existed.??????????? Asdiscussed above in relation to the failure to comply with section 1926.28(a),whether a violation is serious does not depend on the probability of anaccident occurring, but on the probable consequences of an accident. NiagaraMohawk Power Corp., supra. Applying that test here, we conclude that allthree violations were serious. As the judge found, it is likely that accidentsresulting from the violations involving sections 1926.500(b)(1) and (b)(2)would have been serious in nature. Moreover, the hazard involved in the failureto comply with section 1926.500(b)(3) was a fourteen to fifteen foot fall to asteel platform. The record demonstrates that such a fall would likely result indeath or serious physical injury. Accordingly, that violation is also properlyclassified as serious.[10]??????????? Thejudge assessed penalties of $30 for the violation involving noncompliance withsection 1926.450(a)(10), $200 for the violation involving noncompliance withsection 1926.28(a), and $100 for the combined violation involving noncompliancewith sections 1926.500(b)(1), (b)(2), and (b)(3). He weighed the factors listedin section 17(j) of the Act, 29 U.S.C. ? 661(i), including the gravity of theviolations. We find no reason to disturb his assessments.??????????? Accordingly,the citations alleging serious violations of the Act for failure to comply withthe standards at 29 C.F.R. ? 1926.28(a) and 29 C.F.R. ?? 1926.500(b)(1),(b)(2), and (b)(3) are affirmed. The citation alleging a nonserious violationof the Act for noncompliance with the standard at 29 C.F.R. ? 1926.450(a)(10)is affirmed. Penalties totaling $330 are assessed. SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 18, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-0982 BROWN-McKEE, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 6, 1977Appearances:U. Sidney Cornelius, Jr., Esq. Dallas,Texas Attorney for the complainant\u00a0Warlick Carr, Esq. Lubbock, Texas Attorneyfor the respondent?DECISION AND ORDERMARTIN, Judge:??????????? Thisis a proceeding brought by the Secretary of Labor, U. S. Department of Labor,pursuant to the provisions of section 10(c) of the Occupational Safety andHealth Act of 1970 (29 U.S.C. ? 651, et seq.), hereinafter referred to as theAct. Respondent seeks review of three citations issued by complainant onFebruary 13, 1976, wherein respondent was charged with one nonserious violationand two serious violations. Respondent has also contested the penaltiesproposed in the notification of proposed penalty which was issued on February13, 1976.??????????? Theaforementioned citations and notification of proposed penalty were issued as aresult of an inspection of a work place under the operation and control ofrespondent on February 5, 1976. On the day of the inspection respondent hademployees engaged in building an addition to an existing feed mill buildinglocated on Moorman Road, in Comanche, Texas.??????????? Incitation No. 1, which alleged a nonserious violation, respondent was chargedwith having a portable ladder in use outside of the second floor roof which wasnot tied, blocked, or otherwise secured to prevent displacement, in violationof section 29 CFR 1926.450(a)(10). This standard reads as follows:Portable ladders in use shall be tied,blocked, or otherwise secured to prevent their being displaced.???????????? Initem 1a of citation No. 2, which was described as a serious violation,respondent was charged with having a floor opening in the northeast corner ofthe material bin on the second floor which was not guarded to prevent employeesworking in the area from falling 24 feet to a lower floor level in violation ofsection 29 CFR 1926.500(b)(1). This standard reads as follows:Floor openings shall be guarded by astandard railing and toeboards or cover, as specified in paragraph (f) of thissection. In general, the railing shall be provided on all exposed sides, exceptat entrances to stairways.???????????? Initem 1b of citation No. 2 respondent was charged with having a ladderway flooropening located at the southeast corner of the second floor mixer area whichwas not guarded to prevent employees working in the area from walking orbacking into the opening and falling 24 feet to a lower floor level inviolation of section 29 CFR 1926.500(b)(2). This standard reads as follows:Ladderway floor openings or platformsshall be guarded by standard railings with standard toeboards on all exposedsides, except at entrance to opening, with the passage through the railingeither provided with a swinging gate or so offset that a person cannot walkdirectly into the opening.???????????? Initem 1c of the aforementioned citation respondent was charged with having ahatchway opening located next to material bins on the second floor of the mixerarea which was not guarded to prevent employees from falling through twoopenings to the bottom of the bin, some 15 feet in depth, in violation ofsection 29 CFR 1926.500(b)(3). This standard provides as follows:Hatchways and chute floor openings shallbe guarded by one of the following: (i) Hinged covers of standard strength andconstruction and a standard railing with only one exposed side. When theopening is not in use, the cover shall be closed or the exposed side shall beguarded at both top and intermediate positions by removable standard railings;(ii) A removable standard railing with toe board on not more than two sides ofthe opening and fixed standard railings with toeboards on all other exposedsides. The removable railing shall be kept in place when the opening is not inuse and should preferably be hinged or otherwise mounted so as to beconveniently replaceable.?In citation No. 3, also described as a seriousviolation, respondent was charged with a failure to require employees to wearprotective equipment; i.e., safety belts and lifelines, while working on theedge of the roof of the material mixer room 54 feet above the ground where theinstallation of standard guardrails was not feasible in violation of 29 CFR1926.28(a). This standard reads as follows:The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions or where this part indicatesthe need for using such equipment to reduce the hazards to the employees.???????????? Respondent,through its director of personnel and safety, filed a timely notice of contestwith complainant?s area director, advising of its desire to contest thecitations as well as the penalties proposed in connection therewith. Followingthe filing of a formal complaint which was answered by respondent?s attorney,this matter was scheduled for hearing in Lubbock, Texas, on July 8, 1976.Complainant was represented by U. Sidney Cornelius, Jr., Esq., RegionalSolicitor?s office, Dallas, Texas, and respondent was represented by WarlickCarr, Esq., of the firm of key, Carr, Evans & Fouts, of Lubbock, Texas. Noadditional parties desired to intervene or to participate in this proceeding.??????????? Theissues to be resolved in this proceeding are whether respondent committedviolations of sections 29 CFR 1926.450(a)(10), 29 CFR 1926.500(b)(1) 29 CFR1926.500(b)(2), 29 CFR 1926.500(b)(3), and 29 CFR 1926.28(a); whetherrespondent committed serious violations of the Act as alleged in citations 2 and3; and whether the penalties proposed by complainant with respect to theaforementioned violations are appropriate.??????????? Respondent,in its answer to complainant?s request for admissions, admitted that it was anemployer within the meaning of section 3(5) of the Act and also admitted thatthis Commission has jurisdiction over the parties and subject matter herein.??????????? Thenonserious violation (citation No. 1) alleged to have been committed byrespondent concerned a portable ladder located between the upper level and thesecond floor level which said ladder was not tied, blocked, or otherwisesecured to prevent movement. The compliance officer, Mr. Scoggins, testifiedthat respondent?s project superintendent, Mr. Conklin, went down the ladder inhis presence. As a matter of fact the compliance officer also descended theladder after having someone hold it for him. After this matter was brought torespondent?s attention the ladder was secured by wiring it to a railing. Thisoccurred prior to the compliance officer?s departure from the immediate area.Mr. Scoggins pointed out the possibility of an unsecured ladder moving orsliding which could result in an employee falling and breaking an arm or leg orcausing other injury. Accordingly, it is found that respondent?s aforementionedportable ladder was not properly secured on February 5, 1976, and that aviolation of section 29 CFR 1926.450(a)(10) was established.??????????? Incitation No. 3, alleging a serious violation, respondent was charged with thefailure to require its employees to wear protective equipment, that is, safetybelts and lifelines, while working on the edge of the roof of the mixer room,54 feet above the ground, where the installation of a standard guardrail wasnot feasible. The compliance officer observed two of respondent?s employees onthe second story roof, hoisting materials from the ground (see exhibits C3 andC4). He advised that the employees were not secured in any way by safety beltsor lifelines, or guards of any kind to prevent them from falling. Respondent?ssuperintendent was aware of the fact that some of his men were pullingmaterials (such as piping) up on the roof by means of a rope. When questionedas to why this was being done, Mr. Conklin replied that materials were usuallybrought by crane but that the crane had broken down three days previously andhad been sent to Brownwood for repairs. (See exhibit R7) He stated that thatwas the only day on which the duct piping was pulled up by rope.??????????? Mr. Shumsky,respondent?s director of safety, advised that the rental of another crane wouldhave cost $150.00 per hour. It appears from Mr. Conklin?s testimony that thesteel beam shown in exhibits C3 and R1 would adequately support the weight of aman. Respondent offered no testimony as to why the employee next to the edge ofthe roof (Mr. Brooks) wasn?t protected by a belt or a line attached to thesteel beam. It is obvious from the evidence that a fall from a height of 54feet would result in serious injury or possibly death. Accordingly, it is foundthat two of respondent?s employees were working on the edge of the second floorroof without personal protective equipment and that a violation of section 29CFR 1926.28(a) was established.??????????? Theother citation for an alleged serious violation (citation No. 2) deals with thefailure of the respondent to adequately guard by standard railings andtoeboards, or covers, certain floor openings (item 1a) and ladder way flooropenings (item 1b). It was also alleged that a hatchway floor opening (item 1c)was not guarded by covers or standard railings. The citation and complaintalleged that a combination of these three items constituted a serious violationin that there was a substantial probability of death or serious injury in theevent of an accidental fall.??????????? Mr. Scogginstestified that he and Mr. Conklin measured the floor opening and found it to beapproximately 23 x 80 inches.[11] The floor opening was onthe second floor of the mixer area and according to the evidence was unguardedand only partially covered. Mr. Scoggins observed two of respondent?s employeesnear the opening and approximately eight employees in the general area wherethey would have to pass close to the floor opening to gain access to theladderway. Respondent?s foreman, Mr. Horton, stated to the compliance officerthat the opening had been in the same condition for some time prior to theinspection. The opening was covered over with plywood as soon as the conditionwas brought to respondent?s attention. Mr. Scoggins described the hazard as aserious one because of the possibility of a 24 foot fall to a concrete floor,which might result in a broken neck, fractured skull, or even death.??????????? Mr.Scoggins testified that the ladderway floor opening (see exhibits C2) was notguarded to keep a person from walking directly into it. The opening wasmeasured and found to be approximately 29 x 30 inches. Approximately 14 feetbelow the aforementioned opening was a steel platform. Respondent?s foreman,Mr. Horton, advised Mr. Scoggins that this unguarded opening had existed forapproximately one month (Tr. 26). Mr. Conklin told Mr. Scoggins that theladderway opening would be guarded by a permanent railing in the near future.Respondent?s exhibit R4 shows the temporary plywood cover which was placed overthe opening at the time of the inspection. Mr. Scoggins testified that thehazard involved here would be the possibility of an employee falling or backinginto the opening and causing a fracture, broken neck, or even death.??????????? Relativeto the hatchway or chute opening on the second floor of the mixer area, Mr.Scoggins testified that it was not guarded as required by the standard. Mr.Conklin testified that he had never required a cover for this opening becausehe did not consider it necessary. He stated as follows:Well, to be frank with you I didn?tconsider that opening dangerous. It would be hard to fall into. You?d nearlyhave to climb into it or intentionally crawl into it. With all the people onthe project and myself being aware of it, I just?maybe I was wrong in myjudgment but I didn?t consider that a dangerous opening.???????????? Respondent?sprincipal contention with reference to the large floor opening or hoistwayopening was that during the course of construction the installation of the dustcollector system made it necessary for the employees to pass materials, such asduct pipings and connections, up through the various openings between thefloors and that the work couldn?t proceed without the removal of the covers.Admittedly, there was a steel plate over the center of the opening (exhibitC1), and according to Mr. Conklin, plywood was used to cover the opening whenit was not in use. Exhibit R3 shows the opening covered with plywood after thematter was brought to respondent?s attention. Relative to the ladderway openingrespondent stated that it was necessary for employees to talk to each otherthrough the opening while the various pieces of duct work were being fittedtogether and properly aligned.??????????? Aftera careful consideration of all the evidence in the record including thetestimony of respondent?s supervisor, Mr. Conklin, and the testimony of thecompliance officer, Mr. Scoggins, it is concluded that sections 29 CFR1926.500(b)(1) and 29 CFR 1926.500(b)(2) were violated in that the hoistwayopening and the ladderway opening were left unguarded or uncovered for variousperiods of time and on the date of the inspection respondent?s employees weresubject to serious falling hazards because of the aforesaid unguarded openings.While it may have been more convenient for employees to pass materials throughthe openings rather than carry them up the stairs,[12] it is apparent that theemployees were not supervised closely enough to make certain that the openingswere guarded or covered at all times while not actually being used to hoistmaterials. Exhibit R4 shows the ladderway opening which was covered as theresult of the compliance officer?s investigation. This plywood coveringafforded adequate protection to the employees and at the same time permittedthe workers to communicate with one another between the floors.Relative to the hatchway or chute opening on thesecond floor near the material bins, it was pointed out by respondent that aneight inch toeboard goes around the opening to the bins and that on one side aperson would encounter a solid barrier three to four feet high. While a personmight stumble or fall in the opening it would be unlikely because of a heavybar which runs down the center of the opening. Exhibit R2 shows the plywoodcovering which was placed over the opening to the bins to protect theemployees. In view of all of the evidence presented it is concluded that aviolation of section 29 CFR 1926.500(b)(3) was established; however, theundersigned Judge would rate the gravity of this violation as low when comparedwith the hoistway floor opening.??????????? Afterweighing all of the testimony presented by the parties and analyzing thephotographs and drawings received at the hearing, it is concluded that theproposed penalties are excessive and should be reduced with the exception ofthe portable ladder violation where a penalty of $30.00 was proposed.Considering such factors as the gravity of the violation, respondent?s size,good faith, and history of previous violations, the penalty for the failure of respondentto protect its employees against falls from the roof should be reduced to$200.00. The evidence reflects that this hazardous situation existed only a dayor so while the crane was being repaired. Only two employees were subject tothe hazard of falling; however, the injury would be serious in case of anaccident.??????????? Regardingthe failure of respondent to adequately safeguard the hoistway opening, theladderway opening, and the hatchway or chute opening, it is concluded that a$100.00 penalty would be appropriate under the circumstances, giving dueconsideration to respondent?s good faith, size, history of previous violations,as well as the gravity of the aforementioned infractions.FINDINGS AND CONCLUSIONS??????????? Basedupon the record as a whole the following findings and conclusions are made:??????????? 1.That respondent at all times material hereto was engaged in a businessaffecting commerce within the meaning of section 3(5) of the Act.??????????? 2.That respondent was at all times material hereto subject to the requirements ofthe Act and standards promulgated thereunder and this Commission hasjurisdiction over the parties and subject matter herein.??????????? 3.That respondent, a corporation engaged in contracting and engineering work, wason February 5, 1976, engaged in building an addition to a feed mill buildinglocated on Moorman Road, in Comanche, Texas, where it had some 12 to 14employees on the worksite.??????????? 4.That on the date of the inspection respondent had a portable ladder for the useof its employees located outside of the second floor roof which said ladder wasnot tied, blocked, or otherwise secured to prevent movement, and as a resultthereof respondent violated the provisions of section 29 CFR 1926.450(a)(10)and a reasonable and appropriate penalty therefor is $30,00.??????????? 5.That on the date of the inspection respondent had two employees working nearthe edge of the roof of the material mixer room, approximately 54 feet above gRoundlevel, and said employees were not wearing safety belts or lifelines and werenot protected by any other protective equipment to guard against a fallinghazard and as a result thereof respondent violated the provisions of section 29CFR 1926.28(a).??????????? 6.That the foregoing violation was a serious violation which might result indeath or serious physical harm within the meaning of section 17(k) of the Actand a reasonable and appropriate penalty therefor is $200.00.??????????? 7.That on the date of the inspection respondent had employees performing theirconstruction duties on the second floor in the mixer area where they were inclose proximity to a floor opening or hoistway opening which was not guarded bystandard railings or fully protected by means of a cover, thereby violatingsection 29 CFR 1926.500(b)(1); that in the same area respondent had a ladderwayopening which was not guarded by standard railings to protect its employeesfrom a falling hazard and that said condition violated section 29 CFR1926.500(b)(2); and that respondent also had employees in the same area wherethey were near a hatchway or chute opening at the top of a minor ingredientsbin, which said hatchway or chute opening was not guarded by standard guardrails or an appropriate cover to protect the employees from a falling hazardand therefore constituted a violation of section 29 CFR 1926.500(b)(3).??????????? 8.That the violations referred to in the foregoing paragraph when combinedresulted in a serious violation which might result in death or serious physicalinjury within the meaning of section 17(k) of the Act and a reasonable and appropriatepenalty therefor is $100.00.ORDER??????????? Basedupon the foregoing findings and conclusions and upon the entire record it isORDERED that:??????????? 1.Citation No. 1, alleging a nonserious violation, be and the same is herebyaffirmed and a penalty of $30.00 is assessed.??????????? 2.Citations 2 and 3 be and the same are hereby affirmed and penalties in thetotal amount of $300.00 are assessed.??????????? 3.This proceeding be and the same is hereby terminated.HENRY F. MARTIN, JR.JUDGEDATED: January 6, 1977?Dallas, Texas[1] ? 1926.450Ladders.(a)General requirements.(10)Portable ladders in use shall be tied, blocked, or otherwise secured to preventtheir being displaced.[2] ? 1926.28(a)Personal protective equipment(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[3] ? 1926.500Guardrails, handrails, and covers.(b)Guarding of floor openings and floor holes. (1) Floor openings shall be guardedby a standard railing and toeboards or cover, as specified in paragraph (f) ofthis section. In general, the railing shall be provided on all exposed sides,except at entrances to stairways.(2)Ladderway floor openings or platforms shall be guarded by standard railingswith standard toeboards on all exposed sides, except at entrance to opening,with the passage through the railing either provided with a swinging gate or sooffset that a person cannot walk directly into the opening.(3)Hatchways and chute floor openings shall be guarded by one of the following:(i)Hinged covers of standard strength and construction and a standard railing withonly one exposed side. When the opening is not in use, the cover shall beclosed or the exposed side shall be guarded at both top and intermediatepositions by removable standard railings;(ii)A removable standard railing with toe board on not more than two sides of theopening and fixed standard railings with toeboards on all other exposed sides.The removable railing shall be kept in place when the opening is not in use andshould preferably be hinged or otherwise mounted so as to be convenientlyreplaceable.[4] CommissionerBarnako does not agree that the Secretary proved that Brown-McKee?s employeeshad access to the unsecured ladder. In his opinion, access is only establishedif the Secretary shows it is reasonably predictable that employees will be,are, or have been in a zone of danger. Otis Elevator Co., supra(concurring and dissenting opinion). Absent an admission by an employer, theSecretary must prove access by evidentiary facts.Commissioner Barnako would findthat the Secretary failed to meet that burden here. The Secretary showed onlythat the ladder was located on Brown-McKee?s worksite. There is no evidencethat Brown-McKee?s employees had used the ladder prior to the inspection.Moreover, because the Secretary failed to show that the ladder provided themost convenient access between the work stations of any of Brown-McKee?semployees and any other location on the worksite to which those employees wererequired to travel, the Secretary failed to show that the use of the ladder wasreasonably predictable.Because the Secretary failed toprove that Brown-McKee?s employees had access to the unsecured ladder,Commissioner Barnako would vacate the citation alleging noncompliance with 29C.F.R. ? 1926.450(a)(10).[5] Brown-McKee alsoimplied that ? 1926.451(u) applies to roofs to the exclusion of all otherstandards. We note that the Secretary cited Brown-McKee for noncompliance with? 1926.28(a) for the fall hazard to employees working near the edge of a flatroof. The fall hazard to which ?\u00a01926.451(u) is directed is the hazardarising from the pitch of a sloped roof?a hazard not present here. We thereforereject Brown-McKee?s implied contention based on the application of ?1926.451(u). See John?s Roofing & Sheet Metal Co., 78 OSAHRC 57\/E8,6 BNA OSHC 1792, 1978 CCH OSHD ? 22,857 (No. 76?1140, 1978), and cases citedtherein.[6] CommissionerBarnako disagrees with the elements of the Secretary?s burden of proof assignedby the majority. S & H Riggers and Erectors, Inc., supra (concurringopinion). Commissioner Barnako would require that the Secretary prove that (1)Brown-McKee?s employees were exposed to a hazard that a reasonable personfamiliar with the employer?s industry would recognize as requiring the use ofpersonal protective equipment, (2) a feasible means of protecting against thecited hazard exists, and (3) reference to other standards in Part 1926indicates the need for using the personal protective equipment which theSecretary asserts Brown-McKee?s employees should have used. CommissionerBarnako agrees with the majority that the Secretary has established exposure toan obvious fall hazard. Moreover, 29 C.F.R. ?\u00a01926.104 places employers onnotice that lifelines, lanyards, and safety belts are an appropriate means ofprotecting employees against fall hazards. Thus, the second criterion set forthabove is satisfied. However, Commissioner Barnako finds that the Secretary didnot prove that the Brown-McKee employees observed on the roof by the complianceofficer feasibly could have used safety belts and lifelines. Accordingly, onthe existing record, Commissioner Barnako would find that the evidence fails toestablish that Brown-McKee violated the standard.This case, however, was triedbefore the first decision in which Commissioner Barnako stated that he wouldplace the burden of proving feasibility under ? 1926.28(a) on the Secretary. FrankBriscoe Co., 76 OSAHRC 129\/A2, 4 BNA OSHC 1729, 1976?77 CCH OSHD ?21,161(No. 7792, 1976). Accordingly, Commissioner Barnako would remand the case tothe administrative law judge in order to afford the Secretary the opportunityto present evidence regarding the feasibility of using safety belts.[7] Moreover, we notethat the Commission has held that the fact exposure to a violative condition isbrief is not a defense to the violation. George J. Igel & Co., 78OSAHRC 44\/C2, 6 BNA OSHC 1642, 1645, 1978 CCH OSHD ? 22,769 at p. 27,486 (No.76?1087, 1978).[8] The Commission wasconsistently held that employer knowledge is an element of a serious violation.See Niagara Mohawk Power Corp., supra; Environmental Utilities Corp., 77 OSAHRC40\/A2, 5 BNA OSHC 1195, 1977?78 CCH OSHD ?21, 709 (No. 5324, 1977). Themajority does not reach the question of employer knowledge in this case,however, because Brown-McKee has not argued, either before the judge or theCommission, that the violation should not be found to be serious because itlacked knowledge of the violative condition. See Beaird-Poulan, A Divisionof Emerson Electric Co., 79 OSAHRC 21\/D11, 7 BNA OSHC 1225, 1979 CCH OSHD?23,493 (No. 12600, 1979), and cases cited therein.Commissioner Barnako believes thatemployer knowledge must be addressed here since Brown-McKee has argued that theviolation was not serious and proof of employer knowledge is an element of theSecretary?s proof of a serious violation. He would find that Brown-McKee?sknowledge of the violation has been established through the testimony ofBrown-McKee?s project superintendent, who stated that he knew the employeeswere hoisting materials to the roof. Because the superintendent knew that theemployees would have to work near the edge of the roof to hoist the materials,he could have known that the employees would be exposed to a fall hazard had heexercised reasonable diligence. Southwestern Bell Tel. Co., 79 OSAHRC4\/G4, 7 BNA OSHC 1058, 1979 CCH OSHD ?23,278 (No. 15841, 1979).[9] Additionally, thecompliance officer testified that the combination of the three separateviolations resulted in a serious violation.[10] For the reasonstated in note 8 supra, the majority concludes that the question of employerknowledge of the violative conditions is not before the Commission.Commissioner Barnako would reachthe issue of Brown-McKee?s knowledge of the violative conditions becauseBrown-McKee has specifically argued that the violation is not properlyclassified as serious. See note 8 supra. Commissioner Barnako would find thatthe record establishes Brown-McKee?s knowledge of the unguarded floor openings.Brown-McKee?s foreman told the compliance officer he knew of the unguardedopenings alleged to be in violation of ?? 1926.500(b)(1) and (b)(2).Furthermore, Brown-McKee?s project superintendent testified that he knew of theunguarded opening alleged to be in violation of ? 1926.500(b)(3). Judge Martinalso found that Brown-McKee did not supervise its employees closely enough toassure that the openings were guarded or covered when not in use. CommissionerBarnako finds that the record supports Judge Martin?s finding.[11] A ?floor opening?is defined in 29 CFR 1926.502(b) as follows: ?An opening measuring 12 inches ormore in its least dimension in any floor, roof, or platform through whichpersons may fall.?[12] Exhibit R6 showsthe location of a stairway in relation to the hoistway opening and ladderway.”