“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?2677 CHAPMAN CONSTRUCTION CO., INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 17, 1980DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Paul E. Dixon is before the Commission forreview under section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ??\u00a0651?678 (?the Act?). In his decision,Judge Dixon concluded, among other things, that Respondent, ChapmanConstruction Co., Inc. (?Chapman?), was not in violation of the groundingstandard at 29 C.F.R. ? 1926. 401(a)(1),[2] but that Chapman hadcommitted a serious violation when it failed to comply with the fall-protectionstandards at 29 C.F.R. ? 1926.500(d)(1)[3] and ?\u00a01926.501(b).[4] The Secretary of Labor(?the Secretary?) and Chapman filed petitions for discretionary review raisingthe following issues:??????????? 1.Whether the Administrative Law Judge erred in vacating the alleged repeatedviolation of 29 C.F.R. ? 1926.401(a)(1) because the lack of continuity in thegrounding circuit of Respondent?s Skil saw was a latent defect of whichRespondent had no knowledge? [Secretary?s petition.]??????????? 2.Whether the Administrative Law Judge erred in affirming the alleged violationsof 29 C.F.R. ?? 1926.500(d)(1) and 1926.501(b) as a combined serious violation?[Chapman?s petition.]??????????? ChairmanCleary granted both petitions. We reverse the judge with respect to the allegedgrounding violation and affirm the judge with respect to the combined seriousviolations.IA??????????? Thefacts of the alleged repeated violation of the standard at 29 C.F.R. ?1926.401(a)(1) are not in dispute. Chapman was the carpentry contractor for theconstruction of a bank building in Lawton, Oklahoma. During an inspection ofthe worksite, a compliance officer observed a Black and Deckersix-and-a-half-inch portable circular hand-held saw. The saw appeared to be ingood condition. Record testimony indicates that it had been in use the daybefore the inspection. The compliance officer checked the saw with a continuitylight tester, beginning the test at the third (ground) wire prong on the plugand then testing the case of the saw to determine whether the ground wire waseffective. The tester showed that the saw was not grounded. An ungroundedelectric saw can cause serious injuries, even death. At the hearing, Chapmanstipulated that on August 16, 1974, it had received a citation for a violationof the same standard with respect to the same saw, that the citation had notbeen contested and the penalty had been paid.B??????????? JudgeDixon vacated the citation for an alleged violation of section 1926.401(a)(1).He found that the lack of grounding was a latent defect of which Chapman had noknowledge. He also concluded that to require employers to purchase testingequipment and train employees to use it would place an ?onerous andunreasonable duty? on employers.??????????? Onreview, Chapman argues that knowledge is an element that must be proven by theSecretary and that the Secretary failed to carry his burden of proving thatChapman knew, or with reasonable diligence could have known, of the violativecondition. It also maintains that reasonable diligence does not require thepurchasing of testing equipment and the training of employees in its use.??????????? Chapmanpresents another argument for the first time in its brief supporting itspetition. Chapman points out that seven months after the inspection in thiscase, OSHA amended its standards concerning the grounding of portable electricequipment, including the standard at 29 C.F.R. ? 1926.400(h). Section1926.400(h), as amended, provides that employers must furnish ground-faultprotection by either installing ground-fault circuit interrupters orinstituting an assured equipment grounding conductor program.[5] Chapman argues that sincescheduled testing is a requirement added by the amendment and not specificallyrequired by the standard before its amendment, an employer could not berequired to make continuity tests until the amended standards became effective.??????????? TheSecretary argues in his brief on review that the judge erred by grafting ontothe standard at issue an exception for latent defects. The Secretary does notinterpret the cited standard to require continuity testing per se. Section1926.401(a)(1) is a performance standard which only requires grounding and doesnot specifically require any measures, such as testing, to achieve that result.The Secretary also argues that to allow employees to be exposed to electrical hazardsthat could be avoided by a simple test using inexpensive equipment is contraryto the remedial purposes of the Act. Finally, the Secretary argues that?assuming arguendo that the Secretary?s interpretation of section1926.401(a)(1) implicitly means that the standard contains a continuity testingrequirement per se, the existence of the revised 29 C.F.R. ? 1926.400(h) doesnot imply that the Secretary did not intend to require such testing under 29C.F.R. ?\u00a01926.401(a)(1).? He cites United States Steel Corp., 77OSAHRC 192\/B5, 5 BNA OSHC 2063, 1977?78 CCH OSHD ?20, 614 (No. 15500, 1977), insupport of his position.C??????????? Section1926.401(a)(1) states in part that ?The non-current carrying metal parts ofportable . . . equipment shall be grounded.? Inasmuch as it is undisputed thatthe saw in this case was not grounded, the standard was violated. Chapmanmaintains, however, that the record does not show that it knew, or with theexercise of reasonable diligence could have known of the lack of grounding and that,under the Commission decisions in Mountain States Telephone and TelegraphCo., 73 OSAHRC 1\/A9, 1 BNA OSHC 1077, 1971?73 CCH OSHD ?15,365 (No. 355,1973); and Green Construction Co. and Massman Construction Co., A JointVenture, 76 OSAHRC 134\/D9, 4 BNA OSHC 1808, 1976?77 CCH OSHD ? 21, 235 (No.5356, 1976), this is fatal to the citation. We find, however, that with theexercise of reasonable diligence Chapman could have known of the lack ofgrounding. The compliance officer testified that he would always check portabletools of this sort with the continuity light, that most carpenters carry anduse these testers because visual inspection would not disclose a lack ofgrounding, and that the testers cost about $1.79. In view of this, we find thatthe lack of grounding could have been discovered had Chapman exercisedreasonable diligence.??????????? Chapman?sargument that the Secretary?s amendment of 29 C.F.R. ? 1926.400(h) signifiesthat section 1926.401(a)(1) was not intended to require continuity testing ofelectrical equipment is based on a misreading of the standard. Section1926.401(a)(1) does not require continuity testing. Section 1926.401(a)(1) is aperformance standard requiring only that equipment be grounded. Unlike thelatest version of section 1926.400(h), it does not specify, nor does itrequire, that any particular measure (such as testing) be used to meet itsperformance criterion (grounding). Indeed, so long as its performance criterionis met, there can be no violation of section 1926.401(a)(1) even if theequipment is never tested. If, however, the performance criterion is notmet?i.e., the equipment is not grounded?the question raised by the Commissionprecedents cited by Chapman is not whether the standard was violated, for thestandard was violated when the equipment was not grounded. Instead, thequestion is whether knowledge under the Act has been shown. The answer to thatquestion in turn depends upon actual knowledge of the violative condition or,if actual knowledge was not present, then upon whether the violative conditioncould have been known with the exercise of reasonable diligence. Our holdinghere that the lack of grounding of the saw could have been discovered with theexercise of reasonable diligence therefore does not rest upon section1926.401(a)(1). Chapman?s argument that to find a violation here is to construesection 1926.401(a)(1) as a testing standard is therefore incorrect.D??????????? Wenow examine whether the violation was repeated. Chapman stipulated at thehearing that on August 16, 1974, it had been cited for a violation of the samestandard with respect to the same saw. Chapman further stipulated that theprior citation had not been contested and that the penalty had been paid. Thecitation therefore became a Commission final order by operation of law beforethe inspection in this case. Section 10(a) of the Act, 29 U.S.C. ? 659(a).??????????? In PotlatchCorp., 79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ? 23, 294 (No. 16183,1979), the Commission held that a violation is repeated under section 17(a) ofthe Act[6] if at the time of thealleged repeated violation, there was a Commission final order against the sameemployer for a substantially similar violation. Under Potlatch theSecretary can establish substantial similarity by showing that the past andpresent violations arose from failures to comply with the same standard. Oncethe Secretary?s prima facie case has been established, the burden of rebuttingthat showing shifts to the employer. Belger Cartage Service, Inc., 79OSAHRC 16\/B14, 7 BNA OSHC 1233, 1236, 1979 CCH OSHD ?23,440 at p. 28,374 (No.76?1480, 1979). Since Chapman has previously violated 29 C.F.R. ?1926.401(a)(1), we conclude that this violation is ?repeated?.??????????? Thiscase was heard and the judge?s decision was issued before the Commission issuedits decision in Potlatch. Under these circumstances, the Commission wouldnormally afford Chapman an opportunity to present rebuttal evidence. Triple?A? South, 79 OSAHRC 34\/D6, 7 BNA OSHC 1352, 1979 CCH OSHD ? 23, 555 (No.15908, 1979). In the present case, however, the Secretary has presented a primafacie case of a repeated violation, the antecedent violation concerned a lackof grounding on the same saw, and the evidence of record indicates that Chapmancould not rebut the Secretary?s case. See Belger Cartage Service, Inc.,supra. Accordingly, we find a remand to be unnecessary.[7] See J.L. Foti Const. Co.,80 OSAHRC ??, 8 BNA OSHC 1281, 1980 CCH OSHD ?24,421 (No. 76?5049, 1980).II??????????? Initem 1(a) of citation 3, the Secretary alleged that Chapman failed to complywith 29 C.F.R. ? 1926.500(d)(1) in that guardrails were lacking at fourlocations: (a) the northwest stairwell landing platform from the first floorand the mezzanine, (b) the northwest stairwell landing above the second floor,(c) the east side of the northwest stairwell opening on the third floor, and(d) the east side of the northwest stairwell opening on the fourth floor. Initem 1(b) of citation 3, the Secretary alleged that Chapman violated 29 C.F.R.? 1926.501(b) in that there were no stairrails on open-side stairs between thethird and fourth floors of the northwest stairwell. The citation also stated?The combination of the two standards . . . allegedly violated constitute aserious violation.? The Secretary proposed one $700 penalty for both items.Judge Dixon found that Chapman had violated the cited standards as alleged,affirmed the citation, and assessed a single penalty of $500.??????????? Chapmandoes not dispute that the violations occurred, but argues only that they werenot ?serious? within the meaning of section 17(k) of the Act, 29 U.S.C. ?666(j). It argues that inasmuch as the violations were alleged to be serious incombination and the judge made no finding that the violative conditionscombined to create a serious condition, he should not have characterized theviolations as serious. The Secretary maintains that ?the record establisheseach of the violations independently . . . and the substantial probability ofdeath of serious physical harm resulting from either of the violations. . . .?[8] The Secretary thereforeargues that the grouping of the violations could not and did not harm Chapman.We agree with the Secretary and consequently reject Chapman?s argument.III??????????? Afterconsidering the penalty factors set forth in section 17(j) of the Act,[9] we adopt the $140 penaltyproposed by the Secretary for the repeated violation of section 1926.401(a)(1).[10]??????????? Accordingly,citation 4 for a violation of 29 C.F.R. ? 1926.401(a)(1) is affirmed, theviolation is found to be repeated, and a penalty of $140 is assessed. Withrespect to citation 3 (29 C.F.R. ?? 1926.500(d)(1) and 1926.501(b)), we affirmthe judge?s finding that those violations were serious and assess a penalty of$500.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: DEC 17, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?2677 CHAPMAN CONSTRUCTION CO., INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 May 31, 1977APPEARING ON BEHALF OF COMPLAINANT:\u00a0U. SIDNEY CORNELIUS, JR., ESQ., Office ofthe Solicitor, U. S. Department of Labor555 Griffin Square Building, Dallas, Texas75202\u00a0APPEARING ON BEHALF OF RESPONDENT:\u00a0MR. MIKE SENEY, PRESIDENT, ProfessionalSafety, Inc., United Founders TowerSuite 1518, Oklahoma City, Oklahoma 73112\u00a0Paul E. Dixon, Judge:??????????? Thisis an action brought under section 10(c) of the Occupational Safety &Health Act of 1970, 29 USC 651, et seq. (hereinafter referred to as the Act),following an inspection on May 13 and 14, 1976, of respondent?s worksite at 500City Center, Lawton, Oklahoma, where respondent was engaged in work as a primecontractor in carpentry.??????????? Respondentwas issued citations for alleged other-than-serious violations, for seriousviolations, and for repeated violation, along with notice of proposed penaltiesin the total amount of $1,540 on June 1, 1976.??????????? OnJune 17, 1976, respondent filed with a representative of the Secretary anotification of intent to contest the citations, proposed penalties andabatement dates.??????????? Thereafter,complainant filed his complaint on the 22nd day of July, 1976, with respondentfiling its answer on the 28th day of July, 1976, bringing the case to issue.THE CITATIONS??????????? Citation1??????????? Allegedother-than-serious violation of 29 CFR 1926.350(a)(1), item 1, states:Valve protectioncaps were not in place on the following compressed gas cylinders: (a) theoxygen cylinder, and (b) the acetylene cylinder both of which were secured tothe vertical, structural member at the southwest corner of the structure.???????????? Allegedother-than-serious violation of 29 CFR 1926.350(j), item 2, states:Oxygen cylinders were not separated fromfuel-gas cylinders (acetylene) by 20 feet or by a noncombustible barrier atleast 5 feet high, having a fire resistance rating of at least 1\/2 hour asrequired in ANSI Z49.1; i.e., the oxygen and acetylene cylinders secured to thevertical, structural member at the southwest corner of the building.???????????? Allegedother-than-serious violation of section 110?17(a) National Electrical Code,NFPA 70?1971 in accordance with 29 CFR 1926.400(a), item 3, states:Electrical work and installations were notin accordance with pertinent provisions of the National Electrical Code, NFPA70?1971; i.e., live parts of electrical equipment operating at 50 volts or morewere not guarded in that there was no insulated disc cover on the electricalplug on the Skil saw, S\/N E699947, located along the south side of thestructure.???????????? Citation2??????????? Allegedserious violation of 29 CFR 1926.28(a) and\/or 29 CFR 1926.552(b)(2), item 1,states:The employer failed to assure fallprotection to its employees exposed to falls in excess of 6 feet in that:?(a) Employee was not wearing or utilizingappropriate personal protect equipment in an area where there was an exposureto hazardous conditions; i.e., the three employees observed on the AmericanTower material hoist loading platform at the roof level not utilizing a safetybelt, lanyard, or life line while securing standard guard railing, and\/or?(b) All entrances of the hoistway were notprotected by substantial gates or bars to guard the full width of the landingentrance; i.e., the material hoist landing at the roof level.\u00a0??????????? Citation3??????????? Allegedserious violation of 29 CFR 1926.500(d)(1), item 1A, states:The open-sided floor that was greater than6 feet above the adjacent floor or ground level, did not have a standardrailing or the equivalent on the open side; i.e., (a) the northwest stairwelllanding platform between the first floor and the mezzanine, (b) The northweststairwell landing above the second floor, (c) the inadequate railing on theeast side of the northwest stairwell opening on the third floor, and (d) theinadequate railing on the east side of the northwest stairwell opening on thefourth floor.???????????? Allegedserious violation of 29 CFR 1926.501(b), item 1B, states:All stairways did not meet therequirements of 1926.500(e); i.e., no stairrail on opensided stairs between thethird and fourth floors of the northwest stairwell.\u00a0??????????? Citation4??????????? Allegedrepeated violation of 29 CFR 1926.401(a)(1), item 1, states:The following cord and plug-connectedelectrical equipment was not grounded; i.e., the Black and Decker, 6 1\/2?portable circular saw, company #4 located on the south side of the building.?THE STANDARDS29 CFR 1926.350?Gas Welding and Cutting(a) Transporting, moving and storingcompressed gas cylinders(1) Valve protection caps shall be inplace and secured.\u00a029 CFR 1926.350?Gas Welding and Cutting(j) Additional rulesFor additional details not covered in thissubpart, applicable technical portions of American National Standards InstituteZ49. 1?1967, Safety in Welding and Cutting, shall apply.?29 CFR 1926.400?General Requirements(a) All electrical work, installation, andwire capacities shall be in accordance with the pertinent provisions of theNational Electrical Code, NFPA 70?1971; ANSI C1?1971 (Rev. of C1?1968), unlessotherwise provided by regulations of this part.\u00a029 CFR 1926.28?Personal ProtectiveEquipment(a) The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards to theemployees.\u00a029 CFR 1926.552?Material Hoists, PersonnelHoists, and Elevators(b) Material hoists(2) All entrances of the hoistway shall beprotected by substantial gates or bars which shall guard the full width of thelanding entrance. All hoistway entrance bars and gates shall be painted withdiagonal contrasting colors, such as black and yellow stripes.\u00a029 CFR 1926.500?Guardrails, Handrails, andCovers(d) Guarding of open-sided floors,platforms, and runways(1) Every opensided floor or platform 6feet or more above adjacent floor or ground level shall be guarded by astandard railing, or the equivalent, as specified in paragraph (f)(i) of thissection, on all open sides, except where there is entrance to a ramp, stairway,or fixed ladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials could create ahazard.(e) Stairway railings and guards(1) Every flight of stairs having four ormore risers shall be equipped with standard stair railings or standardhandrails as specified below, the width of the stair to be measured clear ofall 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 least one stair railing on the 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.(2) Winding stairs shall be equipped witha handrail offset to prevent walking on all portions of the treads having widthless than 6 inches.?(f) Standard specifications(1) A standard railing shall consist oftop rail, intermediate rail, toeboard, and posts, and shall have a verticalheight of approximately 42 inches from upper surface of top rail to floor,platform, runway, or ramp level. The top rail shall be smooth-surfacedthroughout the length of the railing. The intermediate rail shall be halfwaybetween the top rail and the floor, platform, runway, or ramp. The ends of therails shall not overhang the terminal posts except where such overhang does notconstitute a projection hazard. Minimum requirements for standard railingsunder various types of construction are specified in the following paragraphs:(i) For wood railings, the posts shall beof at least 2-inch by 4-inch stock spaced not to exceed 8 feet; the top railshall be iof at least 2-inch by 4-inch stock; the intermediate rail shall be ofat least 1-inch by 6-inch stock.(ii) For pipe railings, posts and top andintermediate railings shall be at least 1 1\/2 inches nominal diameter with postsspaced not more than 8 feet on centers.(iii) For structural steel railings, postsand top and intermediate rails shall be of 2-inch by 2-inch by 3\/8-inch anglesor other metal shapes of equivalent bending strength, with posts spaced notmore than 8 feet on centers.(iv) The anchoring of posts and framing ofmembers for railings of all types shall be of such construction that thecompleted structure shall be capable of withstanding a load of at least 200pounds applied in any direction at any point on the top rail, with a minimum ofdeflection.(v) Railings receiving heavy stresses fromemployees trucking or handling materials shall be provided additional strengthby the use of heavier stock, closer spacing of posts, bracing, or by othermeans.(vi) Other types, sizes, and arrangementsof railing construction are acceptable, provided they meet the followingconditions:(a) A smooth-surfaced top rail at a heightabove floor, platform, runway, or ramp level of approximately 42 inches;(b) A strength to withstand at least theminimum requirement of 200 pounds top rail pressure with a minimum ofdeflection;(c) Protection between top rail and floor,platform, runway, ramp, or stair treads, equivalent at least to that affordedby a standard intermediate rail;(d) Elimination of overhang of rail endsunless such overhang does not constitute a hazard.?(2) A stair railing shall be ofconstruction similar to a standard railing, but the vertical height shall benot more than 34 inches nor less than 30 inches from upper surface of top railto surface of tread in line with face of riser at forward edge of tread.(3) (i) A standard toeboard shall be 4 inchesminimum in vertical height from its top edge to the level of the floor,platform, runway, or ramp. It shall be securely fastened in place and have notmore than 1\/4-inch clearance above floor level. It may be made of anysubstantial material, either solid, or with openings not over 1 inch ingreatest dimension.(ii) Where material is piled to suchheight that a standard toeboard does not provide protection, paneling orscreening from floor to intermediate rail or to top rail shall be provided.(4)(i) A standard handrail shall be ofconstruction similar to a standard railing except that it is mounted on a wallor partition, and does not include an intermediate rail. It shall have a smoothsurface along the top and both sides of the handrail. The handrail shall havean adequate handhold for any one grasping it to avoid falling. Ends of thehandrail shall be constructed so as not to constitute a projection hazard.(ii) The height of handrails shall be notmore than 34 inches nor less than 30 inches from upper surface of handrail tosurface of tread, in line with face of riser or to surface of ramp.(iii) All handrails and railings shall beprovided with a clearance of approximately 3 inches between the handrail orrailing and any other object.(5) Floor opening covers shall be of anymaterial that meets the following strength requirements:(i) Conduits, trenches, and manhole coversand their supports, when located in roadways, and vehicular aisles, shall bedesigned to carry a truck rear-axle load of at least 2 times the maximumintended load;?(ii)The floor opening cover shall be capable of supporting the maximum intendedload and so installed as to prevent accidental displacement.\u00a0(6) Skylight openings that create afalling hazard shall be guarded with a standard railing, or covered inaccordance with subparagraph (5)(ii) of this paragraph.\u00a0(7) Wall opening protection shall meet thefollowing requirements:\u00a0(i) Barriers shall be of such constructionand mounting that, when in place at the opening, the barrier is capable ofwithstanding a load of at least 200 pounds applied in any direction (exceptupward), with a minimum of deflection at any point on the top rail orcorresponding member.(ii) Screens shall be of such constructionand mounting that they are capable of withstanding a load of at least 200pounds applied horizontally at any point on the near side of the screen. Theymay be of solid construction, of grill work with openings not more than 8inches long, or of slat work with openings not more than 4 inches wide withlength unrestricted.?\u00a029 CFR 1926.501?Stairways(b) Stairway railings and guardrails shallmeet the requirements of ? 1926.500(e) and (f).\u00a029 CFR 1926.401?Grounding and Bonding(a) Portable and\/or cord andplug-connected equipment(1) The noncurrent-carrying metal parts ofportable and\/or plug-connected equipment shall be grounded.?STIPULATIONS??????????? Itwas stipulated that:??????????? 1.Jurisdiction of the proceeding was conferred upon the Occupational Safety &Health Review Commission by section 10(c) of the Act.??????????? 2.Respondent, Chapman Construction Co., Inc., is a corporation having a place ofbusiness and office at 432 F Street in Lawton, Oklahoma, where it is engaged inbusiness as a construction contractor, and is, and at all times hereinaftermentioned was, an employer engaged in a business affecting commerce, who hasemployees within the meaning of section 3 (5) of the Act.??????????? 3. Aninspection was conducted on the 13th and 14th days of May, 1976, by anauthorized representative of the Department of Labor of a workplace under theoperation and control of respondent located at 500 City Center in Lawton,Oklahoma; respondent was issued citations on June 1, 1976, pursuant to section9(a) of the Act.??????????? 4. OnAugust 1, 1974, the respondent was inspected by the Occupational Safety &Health Administration and subsequently received a citation on August 16, 1974,for a violation of 29 CFR 1926.401(a)(1), that being, that noncurrent carryingmetal parts of portable and\/or plug connected equipment were not grounded,i.e., a Black and Decker 6 1\/2-inch portable saw #4.??????????? 5.Respondent did not contest the citation, paid the penalty, and it became afinal order of the Commission.THE EVIDENCE??????????? AllegedOther-Than-Serious Violation?29 CFR 1926.350(a)(1)??????????? ComplianceOfficer Bill Blackwell, during his inspection of a four-story bank buildingunder construction at 500 City Center, Lawton, Oklahoma, where he wasaccompanied by respondent?s superintendent Byron Arthur, observed an acetyleneand oxygen cylinder sitting side by side secured to a beam by heavy wire withthe oxygen cylinder not having a valve protection cap.??????????? Thehazard perceived that should the cylinder be moved to a welding cart anddropped without valve protection, the cylinder would become a projectile.??????????? Blackwellobserved one or two of respondent?s employees in the area.??????????? Heobserved a set of hoses and gaUges approximately 10 feet away, and was advisedby Arthur that respondent was preparing to hook up the bottles.??????????? Inconnection with alleged violation of 29 CFR 1926.350(j), wherein respondent wascited for not having the oxygen cylinder and the acetylene gas cylinderseparated by 20 feet or a barrier wall, Blackwell agreed that they could not behooked up if they were separated by 20 feet.??????????? Blackwellwas of the opinion that the cylinders were not being prepared to be hooked up,inasmuch as the cylinders are usually placed on a cart and moved to where thework is to be performed, whereas he found them storage strapped, secured to theI-beam, with no regulator or hoses attached and with a stack of lumber inbetween the cylinders and connections.??????????? Respondent?ssupervisor, Arthur, testified that he informed Blackwell that respondent wasgetting ready to hook up the oxygen and acetylene bottles for use.??????????? Thehoses and regulators are normally kept in the storage trailer and were broughtin that morning to be used.??????????? AllegedOther-Than-Serious Violation?29 CFR 1926.350(j)??????????? Thecitation was issued on the basis of the acetylene and oxygen cylinders notbeing separated by a 20-foot distance or barrier wall, with the hazardperceived that in the event of a fire causing the cylinders to becomeover-heated, there were combustibles around such as wood and other types ofmaterial.??????????? Blackwellfelt that the hazard was minimal.??????????? AllegedOther-Than-Serious Violation?29 CFR 1926.400(a)??????????? Within5 feet of the cylinders, Blackwell observed a Skil saw lying on the concretefloor and checked its plug connecting equipment, and while checking the thirdwire ground on the plug he noticed that the plug did not have an insulatingwasher to cover the two terminals.??????????? Hefelt that the hazard was of the possibility of arcing, but that the violationwas minimal. He obtained the name of the carpenter and learned that he had usedthe Skil saw the day before.??????????? AllegedRepeat Violation?29 CFR 1926.401(a)(1)??????????? Blackwellutilized a continuity light to check the third wire prong by testing back tothe case of the equipment to see if the third wire ground was effective. Hefound that regarding the Black and Decker 6 1\/2-inch portable circular handheldsaw, company #4, the third wire ground was not continuous and effective.??????????? Thehazard presented was that of shock, and the effect upon an employee would bevariable depending upon his state of health, with the extreme possibility of anemployee being fatally injured.??????????? Blackwellenumerated several sources of problems, such as the plug itself being defectiveor a defect in the cord from the plug leading to the equipment, which wouldrequire either replacement of the plug or the whole cord.??????????? Blackwellfelt that the lack of an insulation disc around the poles could occasion anarcing which would result in a painful burn but little damage, and he did notfeel that an employee would even lose time.??????????? Thecord to the Skil saw looked in good shape to Blackwell and had a three-prongconnection.??????????? Therewas no way to visually determine that the continuity was not intact withoutusing test lights, which run approximately $1.79, and which Blackwell felt mostcontractors use to test their equipment.??????????? Arthurtestified that he did not see any danger in plugging in a plug without aninsulating disc although it could short across, but the employee would have tohave a hold of the bare part of the plug in order to sustain injury.??????????? Inhis 21 years in construction, he had never seen an injury for the lack of aninsulation disc on the end of a plug.??????????? AllegedSerious Violation?29 CFR 1926.23(a) And\/Or 29 CFR 1926.552(b)(2)??????????? AsBlackwell and Compliance Officer Terrell were approaching the jobsite about2:00 p.m. on May 13, 1976, Blackwell observed an employee at the roof level onthe work platform or unloading platform for the material hoist who were joinedby two other employees at the edge of the platform.??????????? Heperceived a hazard of the lack of guardrails and bars on the loading platformand on the ramp leading to the unloading ramp as a serious hazard, in that aman could fall approximately 50?60 feet from the roof onto either buildingdebris or striking cross members of the hoist itself which was angle-iron,which would in Blackwell?s judgment result in a sure fatality.??????????? Blackwellidentified Exhibit C?1 which depicted the double hoist consisting of twomaterial hoist platforms.??????????? Blackwellidentified complainant?s Exhibit C?2 as depicting an employee at roof levelstanding on the unloading platform without any type of personal protectiveequipment.??????????? Blackwellnoted that the second level of the hoistway had an unloading platform withoutstandard rails on the open sides of the platform, which he defined as a toprailand a midrail.??????????? Withreference to 29 CFR 1926.552(b)(2), Blackwell noted that on Exhibit C?1 therewas the lack of a hoistway guardbar or gate.??????????? Blackwelldemonstrated that on Exhibit C?2, where the employee was on the unloadingplatform for the material hoist, the hoist did not have a gate or guardbar.??????????? Blackwellidentified Exhibit C?3 as depicting the lack of a gate or guardbar at thehoistway entrance at the third floor level.??????????? Blackwellobserved respondent?s employees exposed to the conditions described, and feltthat the method of abatement would be the installation of guardbars or gates ateach unloading entrance to the material hoist.??????????? As topersonal protection, he felt that a method of abatement would be for theemployee to use a safety belt and life line and tie off to some structure thatwould support 5,400 pounds.??????????? Blackwellwas not sure whether tying off to the structure of the hoist would do, but feltthat there were items on the roof that the employee could possibly have tiedoff to.??????????? Blackwellnoted that there was a 6-foot parapet around the roof.??????????? Blackwellwas of the opinion that a life line could be attached to the roof structurewith a 6-foot lanyard, and that the life line would have to be attached to astructure that would withstand a 5,400-pound thrust, although he did not make adetermination if there was such a structure on the roof and really did not knowif an employee could have complied with these regulations by hooking up a lifeline and lanyard. (T. 48)??????????? Arthuradvised Blackwell that the employee depicted in Exhibit C?2 was makingadjustments or tightening up the east guardrail on the open side of theunloading platform.??????????? Theloading platform had a guardrail approximately 42 inches in height, but it wasnot a standard guardrail.??????????? Blackwellmade no determination as to whether it would withstand 200 pounds of pressure.??????????? Blackwellnoted that you could see the guardrail on the east side of the loading platformand that it was roughly the same height as the guardrail on the west platformwhere the employee was engaged in his work.??????????? Thedeficiency was the absence of a midrail in Blackwell?s opinion, with theattendant hazard of falling. (T. 49)??????????? Referringto Exhibit C?1, Blackwell indicated a mason?s platform below the entranceplatform to the hoist. (T. 51)??????????? InBlackwell?s opinion, the edges of the two platforms were perpendicular to eachother, and if a man fell from where he was working at the hoist entranceplatform at the northwest edge the employee would fall through thecross-bracing and over the side. (T. 54)??????????? AllegedSerious Violation?29 CFR 1926.500(d)(1) and 29 CFR 1926.501(b)??????????? Referringto alleged serious violation of 29 CFR 1926.500(d)(1), Blackwell noted that thenorthwest stairwell landing platform between the first floor and the mezzaninewas unguarded, along with the northwest stairwell landing above the secondfloor.??????????? Thefall by an employee would be greater than 6 feet to the adjacent floor orground level.??????????? Blackwellnoted under item 1A of citation 3 that there was no standard railing on theopen side of the landing platform between the mezzanine and the first floor,and item 1B that there was no standard rail on the northwest stairwell landingabove the second floor and inadequate railings on the east side of thestairwell on the third floor and inadequate railings on the east side of thestairwell opening on the fourth floor.??????????? Blackwell,having shaken the guardrail on the fourth floor, found it to be flimsy. (T. 57)??????????? Thestairway was constructed so there was a solid wall to one side of the stairway.??????????? WhileBlackwell did not measure the stairways, he testified that they were 80 incheswide.??????????? Thelanding platform between the first floor and mezzanine was approximately 12?14feet from the mezzanine, although Blackwell made no measurement. (T. 61)??????????? Fromthe second landing above the mezzanine, a fall would encompass what Blackwellestimated to be 8?10 feet, in addition to another 10?14 feet to the mezzaninefloor.??????????? Therewas a flooring above the landing approximately four-head high or 4 1\/2 feet.??????????? Blackwellobserved no employees doing any work on the landings. (T. 62)??????????? Arthurestablished that the distance between landings was 6 feet, and as to theemployee on the fourth floor testified that the employee was installing aprotective handrail.??????????? Onthe stairwell the floor above came down to 44 inches above the landing wherethe upper floor sets on a beam.??????????? Arthurwas of the opinion that if someone would fall off the stairwell it would dependon how he fell, but he felt that the worst thing that could occur would be an anklesprain.??????????? Arthurconceded that if an employee would fall from the top of the stairway, it wouldbe conceivable to fall more than 6 feet.??????????? Asthe stairs cross in meeting the landing, the open position between the stairsthat was unguarded ranges from 4 inches to 3 1\/2 feet midway, a space largeenough for an employee to fall through. (T. 77)DISCUSSION??????????? Referringto other-than-serious violations of 29 CFR 1926.350(a)(1) and 29 CFR1926.350(j); i.e. missing valve cap and oxygen and acetylene cylinders improperlystored, we are confronted with the conflict between the opinion evidence of thecompliance officer that the tanks in question were stored versus that of thejob foreman, who testified that the cylinders were being in the process ofpreparation for use.??????????? Wefeel that the opinion evidence of the compliance officer is outweighed by themore credible evidence of the job foreman who had superior knowledge as to whatwas to be done, which is further supported by the observance of the valves andhoses being in close proximity to the cylinders, which equipment, according toArthur, would ordinarily be locked up in the tool van if the equipment was notto be used.??????????? It isfelt, therefore, that this evidence is more supportive of Arthur?s version, andthat the two other-than-serious violations should be vacated.FINDINGS OF FACT??????????? 1.Respondent?s oxygen cylinder did not have a valve protection cap.??????????? 2.Respondent?s oxygen cylinder was sitting side-by-side secured to a beam byheavy wire next to an acetylene cylinder.??????????? 3. Gaugesand hoses were in the near vicinity.??????????? 4.The oxygen and acetylene cylinders were being prepared for use.CONCLUSION OF LAW??????????? Respondentwas not in other-than-serious violation of 29 CFR 1926.350(a)(1) and 29 CFR1926.350(j).DISCUSSION?continued??????????? Regardingother-than-serious violation of 29 CFR 1926.400(a), there is no dispute thatrespondent?s Skil saw did not have an insulating disc on its plug.??????????? However,both the compliance officer and respondent testified that the potential forinjury was exceedingly minimal, in that an employee would almost have to takehis hand from the insulated portion of the plug and touch the prongs. Arcingwas discussed, but the compliance officer felt that any potential for harmwould consist perhaps of a burn and would cause no lost time.FINDINGS OF FACT??????????? 1.Respondent?s Skil saw, SN E699947, did not have an insulation disc at its plug.??????????? 2.The probability for physical harm was minimal.CONCLUSION OF LAW??????????? Respondentwas in violation of 29 CFR 1926.400(a).DISCUSSION?continued??????????? Respondentwas further charged under 29 CFR 1926.401(a)(1) with a repeat violation forfailure to have complete continuity in the ground phase of the three-prongedplug.??????????? Theplug and cord appeared normal and in good condition to the compliance officer,and it was only by use of an electrical testing device that he determined thatthere was lack of continuity.??????????? Obviously,this was a latent defect of which respondent had no knowledge, and it is notfelt that in a reading of the standard that employers would have to purchasethe electrical test equipment and train their employees to run continuitychecks. It is felt that this would place an onerous and unreasonable duty toforce employers to seek out latent defects.FINDINGS OF FACT??????????? 1.The ground phase of respondent?s Skil saw lacked continuity.??????????? 2.Such defect was not apparent, nor was respondent aware of the defect which waslatent.CONCLUSION OF LAW??????????? Somuch of repeat violation of 29 CFR 1926.401(a)(1), as pertains to the groundphase of respondent?s Skil saw, is vacated.DISCUSSION?continued??????????? Regardingalleged serious violation of 29 CFR 1926.28(a) and\/or 29 CFR 1926.552(b)(2),one to three employees were observed utilizing a ramp leading to a materialhoist at the roof level without benefit of utilizing safety belt, lanyard orlife line while performing work on a railing.??????????? Respondentargues that it would have to violate 29 CFR 1926.104 in order to use safetybelts.??????????? Thisargument cannot be accepted, and has been specifically rejected in Secretary v.Frank Briscoe Co., Inc., 76 OSAHRC 125\/D7 (Docket 12136), BNA 4 OSHC1706 (1976), CCH OSHD ?19,949, 21,191 (1976).??????????? Whilethe compliance officer did not testify with an absolute degree of certainty asto a tie-off point on the roof, the hoist structure which carries the materialto the roof was secure enough to support the weight of a man and afforded afeasible solution to the tying-off problem.??????????? Therefore,complainant has carried his burden of proof as to serious violation of 29 CFR1926.28(a).FINDINGS OF FACT??????????? 1.Respondent had employees working on a material platform leading from the fourthfloor level to the hoist; said employees were not wearing or utilizingappropriate personal protective equipment.??????????? 2.There was substantial probability that should the employees fall their fallwould be either into the hoistway or to the ground below and would result inserious bodily harm or death.CONCLUSION OF LAW??????????? Respondentwas in serious violation of 29 CFR 1926.28(a).DISCUSSION?continued??????????? Violationof 29 CFR 1926.552(b)(2) was likewise established, in that the landing entranceof the hoistway was not protected by substantial gates or bars at the rooflevel and at the third floor level.??????????? Respondenthad employees working at the roof level, and there was presented the hazard ofan employee falling through the hoistway from the platform leading from theroof to the hoistway, which fall would be a distance of approximately 50?60feet and which would be productive of serious bodily harm or death.FINDINGS OF FACT??????????? 1.The material hoistway did not have substantial gates or bars at its entrance atthe roof level and at the third floor level.??????????? 2.Respondent?s employees were exposed and had access to the hazard of theunguarded hoistway entrance.??????????? 3. Afall through the hoistway would result in serious physical harm or death.CONCLUSION OF LAW??????????? Respondentwas in serious violation of 29 CFR 1926.552(b)(2).PENALTY??????????? Respondentis of small size and it cannot be said that its safety program was a model ofperfection, although respondent has a history of just one prior violation inits operations. However, the prime factor of penalty consideration undersection 19(j) being that of gravity, it must be found that the gravity of theviolation of 29 CFR 1926.28(a) and 29 CFR 1926.552(b)(2) was high moderate andthere was strong probability that in the event of a mishap respondent?semployee would receive serious bodily harm if not death. It is felt that underthe circumstances a penalty of $500 is appropriate.DISCUSSION?continued??????????? Regardingalleged serious violations of 29 CFR 1926.500(d)(1) and 29 CFR 1926.501(b), itwas uncontroverted that the northwest stairwell landing platform between thefirst floor and the mezzanine was unguarded. A fall from this level wouldresult in an employee traveling some 12?14 feet to the ground floor, and shouldhe fall from the upper level of the steps there would be an additional distanceof 6 feet involved.??????????? Itwas further established that there was no standard rail on the northweststairwell landing above the second floor, inadequate railings on the east sideof the stairwell on the third floor and inadequate guardrails on the east sideof the stairwell opening on the fourth floor.??????????? Inaddition, as the ascending and descending stairways intersected at midpoint,there was an unprotected opening of 3 1\/2 feet, large enough for an employee tofall through to the next level.??????????? Sucha fall would be productive of serious bodily harm or conceivably, death.??????????? Thecomplainant has met and carried his burden of proof as to alleged violations of29 CFR 1926.500(d)(1) and 29 CFR 1926.501(b).FINDINGS OF FACT??????????? 1.The mezzanine landing, which was some 10?12 feet from ground level, was unguarded.??????????? 2.The northwest stairwell landing above the second floor was unguarded.??????????? 3.There was an inadequate makeshift railing on the east side of the northweststairwell opening on the third floor.??????????? 4.There was an inadequate makeshift railing on the east side of the northweststairwell opening on the fourth floor.??????????? 5.There was no stairrail on opensided stairs between the third and fourth floorsof the northwest stairwell.??????????? 6.Employees utilize said stairwell and landings to go to and from their work andhad both access and exposure to the described hazard.CONCLUSION OF LAW??????????? Respondentwas in serious violation of 29 CFR 1926.500(d)(1) and 29 CFR 1926.501(b).PENALTY??????????? Consideringthe previous discussion on penalty which will not be repeated, the same rationaleapplies, and it is felt that a penalty of $500.00 is appropriate.DECISION AND ORDER??????????? 1.Citation 1 for other-than-serious violation of 29 CFR 1926.350(a)(1), item 1,and 29 CFR 1926.350(j), item 2, is vacated.??????????? 2.Citation 1 for other-than-serious violation of 29 CFR 1926.400(a), item 3, isaffirmed. No penalty is assessed.??????????? 3.Citation 2 for serious violation of 29 CFR 1926.28(a) and 29 CFR1926.552(b)(2), item 1, is affirmed. A penalty of $500 is assessed.??????????? 4.Citation 3 for serious violation of 29 CFR 1926.500(d)(1), item 1A, and 29 CFR1926.501(b), item 1B, is affirmed. A penalty of $500 is assessed.??????????? 5.Citation 4 for repeat violation of 29 CFR 1926.401(a)(1), item 1, is vacated.?Paul E. DixonJudge, OSHRCDATE: May 31, 1977[1] 29 U.S.C. ?661(i).[2] Section1926.401(a)(1) states:Thenon-current-carrying metal parts of portable and\/or plug-connected equipmentshall be grounded.[3] Section1926.500(d)(1) states in part:Everyopen-sided floor or platform 6 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing, or the equivalent . . . on allopen sides . . . [t]he railing shall be provided with a standard toe-board . …[4] Section1926.501(b) states:Stairwellrailings and guardrails shall meet the requirements of ? 1926.500(e) and (f).[5] The amendment wasproposed on April 7, 1975, 41 Fed. Reg. 55686 (1975), was adopted on December21, 1976, and became effective on February 22, 1977. 41 Fed. Reg. 55703, 55704(1977).[6] 29 U.S.C. ?666(a).[7] CommissionerBarnako would not presume that a violation of the same standard fulfills thesubstantial similarity requirement and shifts the burden to the employer toprove otherwise. Potlatch Corp., supra (concurring and dissentingopinion). Instead, he would look to whether the second violation is of such anature that the employer, as a result of the notice provided by the firstcitation, should have taken steps to eliminate from its different workplacesthe condition alleged to constitute the repeated violation. When such notice isnot apparent from the face of the citation, he would require the Secretary toprove substantial similarity. See also Automatic Sprinkler Corp., 79OSAHRC 102\/B2, 7 BNA OSHC 1957, 1979 CCH OSHD ?24,077 (No. 76?5271, 1979)(concurring and dissenting opinion). Commissioner Barnako finds substantialsimilarity between the present and antecedent violations because both concerneda lack of grounding on the same saw and noncompliance with the same standard.In Commissioner Barnako?s view, anemployer should be able to defend against an alleged repeated violation bydemonstrating that it made good faith efforts after the entry of a final orderto prevent the recurrence of a substantially similar violation. Since this casewas tried prior to the issuance of Potlatch, supra, Chapman was not on noticeas to the good faith efforts defense and such defense has not been establishedon the record as it currently exists. See Triple ?A? South, Inc., 79OSAHRC 34\/D6, 7 BNA OSHC 1352, 1979 CCH OSHD ? 23,555 (No. 15908, 1979).Therefore, he would enter a conditional order, affirming the citation asrepeated, but would afford Chapman 10 days from the issuance of this decisionto move that the case be reopened for the taking of additional evidence as tothe steps Chapman took after the first citation became a final order to preventoccurrence of a substantially similar violation.[8] Chapman arguesthat the evidence is insufficient to show that the violative conditions wereserious because there is insufficient evidence to show that there was a?substantial probability that death or serious physical harm could result? fromthe violative conditions. The judge relied upon the compliance officer?stestimony that falls of 10 feet from the unguarded or inadequately guardedlocations ?could? cause ?broken arms or [a broken] back? and could be fatal.The judge also accepted the compliance officer?s view of the fall distances.Although the compliance officer did not expressly testify that the injuries hedescribed were ?substantially probable?, the totality of his testimony supportsthat conclusion.[9] Section 17(j) ofthe Act, 29 U.S.C. ? 666(i), states:The Commissionshall have authority to assess all civil penalties provided in this section,giving due consideration to the appropriateness of the penalty with respect tothe size of the business of the employer being charged, the gravity of theviolation, the good faith of the employer, and the history of previousviolations.[10] Chapman does notobject on review to the amount of the penalty ($500) assessed by the judge forthe violations of sections 1926.500(d)(1) and 1926.501(b).”