“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2911 DAVID NEISS, D\/B\/A NEISS ENGINEERING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 19, 1976?DECISIONBEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.MORAN,Commissioner:A decision of Review Commission Judge John J. Morris datedApril 9, 1974, is before this Commission for review pursuant to 29 U.S.C. ?661(i). That decision, which is attached hereto as Appendix A, is affirmedexcept insofar as it assessed a penalty of more than $40.00 for each of theviolations set forth in Items 6, 9, and 10 of the citation.??????????? The respondent is a relatively smallcompany which employs less than 20 employees. Although respondent had beencited for violations on one prior occasion, it has demonstrated a cooperativeattitude and good abatement record. Items 6, 9, and 10 all involve a failure toprotect against fall hazards with standard railings. In determining his penaltyproposal, the complainant considered the gravity of each violation to be low.We agree with this determination as the record fails to establish that therewas a height probability of the occurrence of injury to any of the respondent?semployees or that a significant number of its employees were exposed to thehazards for a substantial period of time. Considering these facts inconjunction with the criteria enumerated in 29 U.S.C. ? 661(i), we find that a$40.00 penalty, as proposed by the complainant, is appropriate for each of theaforementioned items.Accordingly, the Judge?s decision is modified by substitutinga penalty of $40.00 for each of the penalties assessed by the Judge as to Items6, 9, and 10 of the citation and, as so modified, the Judge?s decision isaffirmed.FORTHE COMMISSION:?William S. McLaughlinExecutive SecretaryGloria W. WhiteActing Executive SecretaryDated:May 19, 1976\u00a0BARNAKO,Chairman, Concurring:I concur with my colleague?s decision in this case.The Secretary proposed a penalty of $40 each for items 6, 9,and 10 of the citation. Judge Morris recommended an assessment of $120 for eachof these items. In recommending the assessment he relied on the Commission?sdecision in Dixie Electric, Inc., 5 OSAHRC 201, BNA 1 OSHC 1418, CCHO.S.H.D. para. 16,889 (1973). This matter is distinguishable.In Dixie Electric, the Commission concluded that a $40proposed penalty for failure to guard an open-sided floor was inadequate andassessed a $200 penalty for the violation. The basis for that decision was afinding that the gravity of the violation was relatively high and thatconsequently a substantial penalty was necessary. Among other things, therecord in Dixie Electric indicated that a number of employees worked between 6and 24 inches from the edge of an unguarded floor. The probability of a fallwas high.In the instant case, however, the record is very different.Respondent stipulated that its employees were exposed to the hazards involved,but the record does not contain evidence indicating the likelihood of anaccident occurring or showing high gravity in any other manner. Accordingly,the reason for assessing a substantial penalty in Dixie Electric is notapplicable to this case.In addition, as my colleague points out, Respondent is arelatively small company and has demonstrated a cooperative attitude.?CLEARY,Commissioner, DISSENTING:I dissent to the majority?s action modifying theAdministrative Law Judge?s decision. I would affirm his decision withoutmodification.Commissioner Moran on his own motion directed this case forreview on the following issues:(1) Does the record establish that employees of respondentwere exposed to the hazards created by the existence of the conditions allegedby complainant to constitute a violation of 29 U.S.C. ? 654(a)(2)?(2) Did the Judge exceed the Commission?s authority byassessing penalties in excess of the amount respondent would have had to pay,had he not exercised his right to a hearing on complainant?s charges ofnon-compliance with ?? 1926.500(b)(1), 1926.500(b)(2) and 1926.500(d)(1) ofvolume 29 of the Code of Federal Regulations?As in Star Circle Wall Systems, Inc., No. 3271, BNA 4OSHC 1011, CCH OSHD para. 20,502 (1976), the Secretary has filed a brief thatdoes not take issue with the Judge?s disposition of the issues on review andrespondent has filed no brief. In Star Circle, the Commission said:Thisis significant because the order for review involves only matters decidedadversely to respondent. Also, exposure issues are the subject of severalpending Commission decisions that have been fully briefed. Under thesecircumstances, we decline to rule upon the issues that have been raised suasponte.That decision is controlling here, and accordingly I wouldaffirm the Administrative Law Judge?s decision.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2911 DAVID NEISS, D\/B\/A NEISS ENGINEERING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINALORDER DATE: May 9, 1974APPENDIXADECISION AND ORDERAppearances:William J. Kilberg,Solicitor of Labor T.A. Housh, Jr., Regional Solicitor Henry C. Mahlman,Associate Regional Solicitor James H. Barkely, Trial Counsel of Denver,Colorado for the Secretary of Labor.\u00a0Erick K. Furedy, TrialCounsel of Denver, Colorado for the Respondent.\u00a0STATEMENT OF THE CASEJohnJ. Morris, Judge, OSAHRCThis is a proceeding pursuant to Section 10 of the OccupationalSafety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act)contesting certain Citations issued by the Complainant against the Respondentunder the authority vested in Complainant by Section 9(a) of that Act.The Citations allege that Complainant inspected a workplaceunder the ownership, operation or control of Respondent located at 50 AdamsStreet, Denver, Colorado, and described as a concrete pier and platformapartment building with curtain walls of precast concrete.It is further alleged that at the above workplace, Respondentviolated Section 5(a)(2) of the Act by failing to comply with occupationalsafety and health standards promulgated by Complainant pursuant to Section 6thereof.The contested Citation was issued on April 25, 1973, as theresult of an inspection on April 16, 1973, and it is alleged that the standardsviolated were duly published in the Federal Register and subsequentlyrecodified in the Code of Federal Regulations as hereinafter noted. Abatementwas proposed as hereafter noted. Citation Number 2 alleges as follows: Item Number Standard or Regulation Allegedly Violated Abatement Date Description of Alleged Violation Proposed Penalty 1 29 CFR 1903.2 May 4, 1973 The employer did fail to post the notice to employees furnished by the Labor Dept. informing them of their rights under the Act. \u00a0 $50 2 29 CFR 1926.450(a)(2) Upon receipt of Citation The ladder leading from the 2nd floor balcony to the 3rd floor balcony on the outside had a branch knot defect in the side rail. \u00a0 $40 3 29 CFR 1926.450(a)(7) Upon receipt of Citation The ladder leading from the 2nd floor balcony to the 3rd floor balcony was not used on a pitch that was one-quarter of the working length. \u00a0 $40 4 29 CFR 1926.450(a)(9) Upon receipt of Citation \u00a0 The employer did fail to extend the side rails of 5 ladders 36 inches above the landings. \u00a0 $40 \u00a0 5 29 CFR 1926.450(b)(12) Upon receipt of Citation \u00a0 The job made ladders did not have the cleats secured with 3?10d common wire nails or other fasteners of equivalent strength. \u00a0 $40 6 29 CFR 1926.500(b)(2) May 4, 1973 \u00a0 Ladderway floor openings and platforms were not guarded by standard railings and toeboards on all exposed sides except at entrance to ladder openings. \u00a0 $40 7 29 CFR 1926.25 May 4, 1973 \u00a0 Employer failed during the course of construction to keep the work areas, passageways and stairs cleared of scrap lumber with protruding nails and other debris. \u00a0 $40 8 29 CFR 1926.350(a)(9) Upon receipt of Citation \u00a0 Employer did fail to secure compressed gas cylinders in an upright position on the ground in front of the building. \u00a0 None 9 29 CFR 1926.500(d)(1) May 4, 1973 \u00a0 The open-sided floors more than 6 ft. above the ground level were not guarded by standard railings on the 1st, 2nd and 3rd floors. \u00a0 $40 10 29 CFR 1926.500(b)(1) May 4, 1973 \u00a0 Floor openings were not guarded by standard railings or covered as required on the 2nd and 3rd floors on the exposed sides. \u00a0 $40 11 29 CFR 1926.300(b)(2) May 4, 1973 \u00a0 The belts of the compressor in the storage room were not guarded from exposure to contact by employees. \u00a0 None 12 29 CFR 1926.500(e)(1) May 4, 1973 \u00a0 \u00a0 The stairs leading to the basement were not equipped with standard stair railings or standard handrails. \u00a0 None \u00a0\u00a0All of the heretofore cited standards are set forth withparticularity in the Appendix of this decision.After Respondent contested this enforcement action, and aComplaint and an Answer having been filed by the parties, the case came on forhearing in Denver, Colorado, on August 28, 1973. The transcript fails toreflect whether the notice of the hearing was posted so a post-trial notice andorder was duly posted. No persons objected or desired to intervene in theproceedings.STATEMENT OF JURISDICTIONThe parties have stipulated that the Occupational Safety andHealth Review Commission has jurisdiction (Tr. 4, 5, 8). Respondent doesbusiness in the State of Colorado, uses the facilities of interstate commerceincluding the U.S. mail system and telephone services (Tr. 7). Respondent furtherhas employees who were exposed to the hazards involved in this litigation (Tr.6). Accordingly, the Occupational Safety and Health Review Commission hasjurisdiction of the subject matter of this litigation.STATEMENT OF APPLICABLE LAW PERTAINING TO PENALTIESThe violations in this case are alleged non-seriousviolations, wherein the proposed penalties do not exceed $50. The ReviewCommission has, in past decisions, asserted that no monetary penalties fornon-serious violations should be assessed where the situation involves small,low-level gravity violations. The rationale for these decisions is that theassessment of a penalty in such circumstances does little to effectuate thepurposes of the Act. Secretary of Labor vs. General Meat Company, OSAHRCDocket Number 250, et seq.On the other hand, in the case of Secretary of Labor vs.Hydroswift, OSAHRC Docket Number 591, et seq., the Review Commission heldthat the assessment of small monetary penalties for non-serious violationshaving a level of gravity other than low does effectuate the purposes of theAct. Penalties serve to remind employers that their primary responsibilityunder the Act is adherence to its protective mechanisms. Failure to imposepenalties relating to violations with high levels of gravity serves only torestrain the Act?s effective operation and hinder its functions to reduce thehazards of the workplace for all employees. See Secretary of Labor vs.Osborn Apparel Manufacturing Company, OSAHRC Dockets Number 1868 and 1869.A further line of case law is set forth in Secretary ofLabor vs. Dixie Electric, Incorporated, OSAHRC Docket Number 1345 (November14, 1973). In Dixie Electric, the Review Commission held that the degreeof probability of injury was relatively high where Respondent?s employees wereexposed to the unguarded edge of an open-sided floor. Accordingly, the ReviewCommission raised the $35 penalty of the trial judge to $200.ISSUES PRESENTEDThe initial legal issue presented by the parties is whetheror not a general contractor is responsible for conditions not created by himand outside of his control (Tr. 6?7; Resp. Post-trial Brief).The second issue presented is what penalty, if any, should beassessed for the various violations involved herein (Tr. 6; Resp. PosttrialBrief).The third issue urged by Respondent is that he is entitled toa lower category as to employees endangered by having the number reduced to hisown employees and each of the subcontractors assessed on the basis of their ownemployees (Resp. Post-trial Brief).STATEMENT OF THE EVIDENCERespondent admits that the violations alleged in theCitation, Items 1 through 12, existed (Resp. Ex. A, Post-trial Brief; Tr. 5,6).As to the initial legal issue of responsibility of thegeneral contractor for conditions not created by him or outside of his control,Respondent admits that some of his employees were exposed to the hazardsinvolved (Tr. 6, 47). According to the Compliance Officer, Respondent hadthirteen employees at the jobsite, located on the second, third and fourthfloors (Tr. 44, 45?48). Respondent?s evidence shows that he is engagedprimarily as a general contractor in the engineering and developing business(Tr. 66, 78). His contract with the subcontractors states that thesubcontractors will comply with safety regulations (Tr. 67). His testimonyindicated that he had four employees of a total of 25 people on the jobsite(Tr. 48, 49, 67?68). The main thrust of Respondent?s defense is that he has nocontrol over the subcontractors (Tr. 69?71, 85?86) or tradespeople (Tr. 77).Further, several of the violations were caused by subcontractors (Tr. 45).The Occupational Safety and Health Act of 1970 imposesliability on an employer who has employees exposed to the involved hazards. Theparties herein stipulated that the Respondent did have some exposed employees(Tr. 6, 47), and the uncontroverted evidence is that Respondent had employeeson the jobsite, notwithstanding that the estimates of the number of employeesvaried between the Compliance Officer and the Respondent (Tr. 44, 47, 48,67?68, 71). Having established exposure to his employees, it follows thatRespondent general contractor is responsible. It is not a defense to thegeneral contractor to establish that the condition in violation of the standardwas not created by him if the above factors are established. Further,Respondent?s view that the conditions are ?outside of his control? (Tr. 6?7)seeks to ignore the contractual relationship between the general contractor andthe subcontractor (Tr. 67). The facts establish responsibility on the part ofthe general contractor.The third issue urged by Respondent is that Respondent shouldbe entitled to a lower category as to employees endangered by having the numberreduced to his own employees and each of the subcontractors assessed for theiremployees. This view urged by Respondent is in no way contemplated within thestatutory structure of the Act. The liability of the general contractor hasbeen established if the circumstances in this case have been established asenumerated above.Respondent admits the existence of a state of factsestablishing each of the violations (Tr. 5?6; Resp. Ex. A, Post-trial Brief);accordingly, it follows that each of the alleged violations should be affirmed.Item 1 of the Citation is an alleged violation of thestandard regarding failure to post notice to employees informing them of theirrights under the Act. The proposed penalty was $50 (Tr. 39?40), dictated by thecompliance manual, and there were no adjustment factors considered (Tr. 40).Respondent stipulated that this penalty was reasonable (Tr. 4, 5?6; Resp. Ex.A, Post-trial Brief). Respondent defensively offers evidence and stipulationsthat the poster was removed by unknown persons (Tr. 5?6, 68). It had been hungby Respondent and his superintendent; he did not know when it had been removed,but there had been vandalism on the jobsite (Tr. 69). The stipulation of theparties is not necessarily binding on a Review Commission Judge, and thestipulation that the proposed $50 penalty is reasonable is rejected.Complainant?s compliance manual proposing a flat penalty of $50 for failure topost constitutes an arbitrary determination contrary to the Act. Penaltiesshould be proposed and assessed on a fair and consistent basis, and they mustbe arrived at by considering the criteria specified in Section 17(j) of theAct. The evidence indicates that the employer did post the necessary OSHA formbut that it was removed by vandals. Respondent should not be held responsiblefor the act of a third party in these circumstances. In view of the arbitraryassessment, Respondent?s evidence of posting, and because of the relativelyremote effect of 29 CFR 1903.2 on the health and safety of employees, theproposed civil penalty of $50 for Item 1 of the Citation should be vacated. Apenalty of ?none? should be assessed.In arriving at the adjusted penalty for Items 2 through 12,Complainant considered the likelihood of injury, severity, and extent to whichthe standards were allegedly violated and the number of employees exposed (Tr.65; Compl. Ex. 1). The Compliance Officer did not allow a credit for good faithbecause of prior inspections (Tr. 11) involving violations of a serious nature(Tr. 11). Full credit was allowed for Respondent?s size (Tr. 11). As tohistory, Respondent was given a 10% credit and nothing for good faith; thisevaluation was made on the basis of a single prior Citation involving similarviolations (Tr. 11, 42, 43, 53; Compl. Ex. 1). A 50% credit for abatement wasallowed (Tr. 11). The total credits of 20% as outlined above were considered asto each of the hereinafter discussed violations (Tr. 11, 16).If a Respondent has a prior history of violation, theCompliance Officer reduces the prior history credit by half (Tr. 53). Whilethere were 105 alleged violations on the previous jobsite (Tr. 41), Respondentcorrected the violations (Tr. 43). In the instant case and at the time of theinitial inspection (Tr. 63), he was cooperative (Tr. 62), and he talked with thesubcontractors with the Compliance Officer, advising them of the items that hadto be corrected (Tr. 51). It is this Judge?s view that the Compliance Officerfailed, in effect, to give sufficient consideration to the good faith ofRespondent in that he deducted a percentage of the good faith credit as well asa portion of the credit for history for a single prior Citation (Tr. 53). Thiserror permeates the various items of the Citation.Item 2 of the Citation alleges that the ladder leading fromthe second floor balcony to the third floor balcony (and used to gain access towork above) had a branch-knot defect on the side rail (Citation; Tr. 9?10, 45,54; Compl. Ex. 2). 29 CFR 1926.450(a)(2) prohibits the use of ladders withfaulty or defective construction. As to this violation, the Compliance Officerconsidered the probability and severity of injury to be high to moderate. Aperson might fall two stories if the ladder were to break (Tr. 9?10, 14?15).The defective ladder was less than 15% of the ladders on the jobsite (Tr.9?10). After considering the credits as outlined above, an adjusted penalty of$40 was proposed.The placement of this defective ladder across open space andthe possibility of a two-story fall (Tr. 9?10) place this factual situation withinthe category of Hydroswift, cited supra. However, the proposedcivil penalty of $40 is excessive and should be vacated, and a penalty of $30assessed in lieu thereof.Item 3 of the Citation involves a ladder that was not used ona pitch that was one-quarter of its working length (Citation; Tr. 14?15). Anadjusted penalty of $40 was proposed. If the ladder were to break, a personwould fall and require treatment from a doctor (Tr. 15). The violation hereindicates a low-level gravity situation within the doctrine of General MeatCompany, cited supra, and the proposed penalty of $40 should bevacated.Item 4 of the Citation involves side rails for a ladder thatdid not extend 36 inches above the railing (Tr. 16). The Compliance Officerconsidered that there was a low probability of severe injury (Tr. 16). Fiveladders (over 50% of those on the jobsite) were not so extended (Tr. 16?17).The Compliance Officer recommended an adjusted penalty of $40 (Tr. 16?17).Complainant?s Exhibit 3 depicts the violation in Item 4 of the Citation (Tr.22, 26; Compl. Ex. 3). In view of the foregoing facts, the violation set forthin Item 4 is controlled by the doctrine set forth in General Meat Company,cited supra, and the proposed penalty of $40 should be vacated.?Item 5of the Citation involves ladders made on the job that did not have cleatssecured with 3?10d wire nails or other fasteners of equivalent strength (Tr.17). The Compliance Officer considered the probability of injury to be low. Hefurther believed, however, that if the cleats were to pull out, a person wouldfall and require a doctor?s treatment (Tr. 17). There was no showing by theComplainant that the job-made ladders were unsafe by virtue of not beingprovided with the fasteners as provided in the standard. Lack of proof of sucha detail would indicate that the situation involves the doctrine of GeneralMeat Company, cited supra, and the proposed $40 penalty should bevacated.Item 6 of the Citation involves certain unguarded flooropenings and platforms and a violation of 29 CFR 1926.500(b)(2). Complainant?sExhibits 7, 8, and 9 depict floor openings (including the third floor) withoutrailings or covers (Tr. 23?24, 26, 28, 32; Compl. Ex. 8). The violation hereinfalls within the Review Commission?s decisions as expressed in Secretary ofLabor vs. Dixie Electric, Incorporated, OSAHRC Docket Number 1345 (November14, 1973). A penalty of $40 was proposed (Complaint; Notification of ProposedPenalty). On the basis of Dixie Electric, cited supra, a civil penaltyof $120 is appropriate for the penalty of the violation of 29 CFR1926.500(b)(2) in the circumstances herein.Item 7 of the Citation involves a housekeeping violation,alleging that Respondent failed to keep the work areas, passageways and stairsclear of scrap lumber and other debris (Tr. 18). [Complainant?s Exhibits 4, 6and 7 show the conditions alleged (Tr. 22?23, 26, 28, 31, 32).] The ComplianceOfficer considered the likelihood of injury to be moderate and that a doctorwould be required if an injury did occur (Tr. 18). The severity was rated asbeing low to moderate (Tr. 18). The extent to which the standard was violatedwas considered high, as there were five different locations involved (Tr.18?19).It is this Judge?s belief that the factual situation in Item7 involves relatively high gravity. From the photographic evidence it appearsthat if a person were to fall, he could be injured by striking any of theprotruding nails or, in the alternative, he could step on any of the nailswhich are clearly visible in the photographs. Accordingly, this situation isruled within the doctrine of Hydroswift, cited supra. However,the penalty of $40 is excessive, and a penalty of $30 should be assessed inlieu thereof.Item 8 involves a failure to secure compressed gas cylinders(Citation; Compl. Ex. 10; Tr. 26, 28). Complainant?s Exhibit 9 shows theunsecured cylinders (Tr. 24, 28). There was a proposed civil penalty of ?none?(Tr. 60; Compl. Ex. 1). This proposed penalty is proper and should be affirmed.Item 9 of the Citation involves a failure to guard withstandard railings the open-sided floors which were more than six feet aboveground level (Tr. 19, 24?29, 60?61; Compl. Ex. 11). On cross-examination, theCompliance Officer admitted that he had not seen anyone going close to the edge(Tr. 60?61); however, in view of the stipulation heretofore discussed that someof Respondent?s employees were exposed, a violation is established. Thiscondition existed on three floors, and a person falling would no doubt beinjured; hence, the case falls within the doctrine of Dixie Electric,cited supra. The $40 civil penalty proposed is inadequate, and a penaltyof $120 should be assessed.Item 10 of the Citation involves floor openings that were notguarded by standard railings or covered at the second and third floor levels onthe exposed sides (Citation; Tr. 24). The reasoning of Dixie Electric,cited supra, is likewise applicable here. The proposed penalty of $40 isinadequate, and a penalty of $120 should be assessed.Item 11 of the Citation involves unguarded belts of acompressor (Citation; Tr. 26?27, 28; Compl. Ex. 13). The compressor was not inuse but was available in the storage area (Tr. 35). The Compliance Officerrecommended an unjusted penalty of ?none? (Tr. 60; Compl. Ex. 1). The proposedpenalty was properly evaluated, and the proposed penalty of ?none? should beaffirmed.Item 12 of the Citation involves stairs leading to thebasement which were not equipped with standard railings or hand rails(Citation; Tr. 20). Complainant considered the various factors outlined abovein arriving at an adjusted penalty of ?none? (Tr. 60; Compl. Ex 1). Thisproposed penalty is proper, and the proposed penalty of ?none? should beaffirmed.FINDINGS OF FACT1. Respondent is an individual doing business in the State ofColorado, using the facilities of interstate commerce (Tr. 7).2. Respondent has employees who were exposed to the hazardsinvolved in this litigation (Tr. 6).3. Respondent admits that the violations existed in Items 1through 12 of Citation Number 2 (Resp. Ex. A, Post-Trial Brief; Tr. 5, 6).4. The poster mentioned in Item 1 of the Citation was removedby unknown persons after it had been put up by Respondent and hissuperintendent (Tr. 5?6, 68, 69).5. There had previously been some vandalism at the jobsite(Tr. 69).6. In arriving at the adjusted penalties for the hereinafterenumerated violations, Complainant considered the likelihood of injury, theseverity thereof, the extent to which the standard was violated, and the numberof employees exposed (Tr. 65; Compl. Ex. 1).7. In connection with Respondent?s history, the ComplianceOfficer gave a credit of 10% and nothing for good faith; this evaluation wasbased on a single prior Citation involving similar violations (Tr. 11, 42, 43,53; Compl. Ex. 1).8. Item 2 of the Citation involved the use of a ladder with abranch knot defect on the side rail (Citation: Tr. 9?10, 45, 54; Compl. Ex. 2).9. In connection with the violation mentioned in thepreceding paragraph, a person might fall two stories if the ladder were tobreak (Tr. 9?10)10. Item 3 of the Citation involved a ladder that was notused on a pitch that was one-quarter of its working length (Tr. 14?15).11. If the ladder mentioned in the preceding paragraph wereto break, a parson would fall and require treatment from a doctor (Tr. 15).12. Item 4 of the citation involved side rails for a ladderthat did not extend 36 inches above the railing (Tr. 16).13. The violation mentioned in the preceding paragraphinvolved a low probability of severe injury (Tr. 16).14. Item 5 of the Citation involved ladders that did not havecleats secured with three 10?d nails or other fasteners of equivalent strength(Tr. 17).15. The violation mentioned in the preceding paragraphinvolved a low probability of injury (Tr. 17).??????????? 16. In connection with the violationstated in Item 5 of the Citation, the evidence failed to establish that thejob-made ladders were unsafe (Totality of Record).17. Item 6 of the Citation involved unguarded floor openingsand platforms without railings or covers as high as the third floor (Tr. 23?24,26, 28, 32; Compl. Ex. 7, 8, 9).?18. Item 7 of the Citation involved a failure to keep workareas, passageways and stairs clear of scrap lumber and other debris (Tr. 18,22?23, 26, 28, 31, 32; Compl. Ex. 4, 6, 7).19. With regard to the violation mentioned in the precedingparagraph, if a person were to fall, he could be injured by striking any of theprotruding nails or he could step on them (Compl. Ex. 4, 6, 7).20. Item 8 of the Citation involved a failure to securecompressed gas cylinders (Citation; Tr. 26, 28; Compl. Ex. 9, 10).21. For the violation mentioned in the preceding paragraph,there was a proposed civil penalty of ?none? (Tr. 60; Compl. Ex. 1).22. Item 9 of the Citation involved a failure to guard withstandard railings the open-sided floors more than six feet above ground level(Tr. 19, 60?61; Compl. Ex. 11).23. Item 10 of the Citation involved unguarded floor openingsat the second and third floor levels on the exposed side (Citation; Tr. 24).24. Item 11 of the Citation involved unguarded belts of acompressor (Citation; Tr. 26?27, 28,; Compl. Ex. 13).25. For the violation mentioned in the preceding paragraph,there was a proposed civil penalty of ?none? (Tr. 60; Compl. Ex. 1).26. Item 12 of the Citation involved stairs leading to thebasement that were not equipped with standard railings or handrails (Citation;Tr. 20).27. For the violation mentioned in the preceding paragraph, therewas a proposed adjusted penalty of ?none? (Tr. 60; Compl. Ex. 1).CONCLUSIONS OF LAW1. Respondent is, and was at all times relevant to the issuesherein, engaged in a business affecting commerce within the meaning to Section3(3) of the Occupational Safety and Health Act of 1970 (Facts, 1).2. Respondent is, and was at all times herein mentioned, anemployer within the meaning of Section 3 (5) of the Act, subject to theprovisions of Section 4(a) and 5(a) of the Act and the standards promulgatedunder Section 6 thereof (Facts, 1, 2).3. Respondent violated the hereinafter enumerated standards:Item 129 CFR 1903.2;Item 229 CFR 1926.450(a)(2);Item 329 CFR 1926.450(a)(7);Item 429 CFR 1926.450(a)(9);Item 529 CFR 1926.450(b)(12);Item 629 CFR 1926.500(b)(2);Item 729 CFR 1926.25;Item 829 CFR 1926.350(a)(9);Item 929 CFR 1926.500(d)(1);Item10 29 CFR 1926.500(b)(1);Item11 29 CFR 1926.300(b)(2);Item12 29 CFR 1926.500(e)(1);(Facts,3).4. The proposed civil penalty of $50 for the violation of 29CFR 1903.2 should be vacated, and a proposed civil penalty of ?none? should beassessed therefor (Facts, 4, 5).5. The proposed civil penalty of $40 for the violation of 29CFR 1926.450(a)(2) should be vacated, and a civil penalty of $30 assessed in lieuthereof (Facts, 6, 7, 8, 9).6. The proposed civil penalty of $40 for the violation of 29CFR 1926.450(a)(7) should be vacated, and a penalty of ?none? should beassessed in lieu thereof (Facts, 10, 11).7. The proposed civil penalty of $40 for the violation of 29CFR 1926.450(a)(9) should be vacated, and a civil penalty of ?none? assessed inlieu thereof (Facts, 12, 13).8. The proposed civil penalty of $40 for the violation of 29CFR 1926.450(b)(12) should be vacated, and a penalty of ?none? assessed in lieuthereof (Facts, 14, 15, 16).9. The proposed civil penalty of $40 forthe violation of 29 CFR 1926.500(b)(2) should be vacated, and a civil penaltyof $120 should be assessed in lieu thereof (Facts, 17).10. The proposed civil penalty of $40 for the violation of 29CFR 1926.25 should be vacated, and a penalty of $30 should be assessed in lieuthereof (Facts, 18, 19).11. The proposed civil penalty of ?none? for the violation of29 CFR 1926.350(a)(9) is proper and should be affirmed (Facts, 20, 21).12. The proposed civil penalty of $40 for the violation of 29CFR 1926.500(d)(1) should be vacated, and a penalty of $120 should be assessedin lieu thereof (Facts, 22).13. The proposed civil penalty of $40 for the violation of 29CFR 1926.500(b)(1) should be vacated, and a civil penalty of $120 should beassessed in lieu thereof (Facts, 23).14. The proposed penalty of ?none? for the violation of 29CFR 1926.300(b)(2) is proper and should be affirmed (Facts, 24, 25).15. The proposed civil penalty of ?none? for the violation of29 CFR 1926.500(e)(1) is proper and should be affirmed (Facts, 26, 27).ORDERBased on the foregoing findings of fact and conclusions oflaw, it is hereby ORDERED and ADJUDGED:1. Citation Number 2, Items 1 through 12, for the allegedviolation of the hereinafter enumerated standards:29 CFR1903.2;29 CFR1926.450(a)(2);29 CFR1926.450(a)(7);29 CFR1926.450(a)(9);29 CFR1926.450(b)(12);29 CFR1926.500(b)(2);29 CFR1926.25;29 CFR1926.350(a)(9);29 CFR1926.500(d)(1);29 CFR1926.500(b)(1);29 CFR1926.300(b)(2);29 CFR1926.500(e)(1);isaffirmed.2. The proposed civil penalty of $50 for the violation of 29CFR 1903.2, as set forth in Item 1, is vacated, and a penalty of ?none? isassessed in lieu thereof.??????????? 3. The proposed civil penalty of $40for the violation of 29 CFR 1926.450(a)(2), as set forth in Item 2, is vacated,and a penalty of $30 assessed in lieu thereof.4. The proposed civil penalty of $40 for the violation of 29CFR 1926.450(a)(7), as set forth in Item 3, is vacated, and a penalty of ?none?is assessed in lieu thereof.5. The proposed penalty of $40 for the violation of 29 CFR1926.450(a)(9), as set forth in Item 4, is vacated, and a penalty of ?none? isassessed in lieu thereof.6. The proposed civil penalty of $40 for the violation of 29CFR 1626.450(b)(12), as set forth in Item 5, is vacated, and a penalty of?none? is assessed in lieu thereof.7. The proposed civil penalty of $40 for the violation of 29CFR 1926.500(b)(2), as set forth in Item 6, is vacated, and a penalty of $120is assessed in lieu thereof.8. The proposed civil penalty of $40 for the violation of 29CFR 1926.25, as set forth in Item 7, is vacated, and a penalty of $30 isassessed in lieu thereof.9. The proposed civil penalty of ?none? for the violation of29 CFR 1926.350(a)(9), as set forth in Item 8, is proper and is affirmed.10. The proposed civil penalty of $40 for the violation of 29CFR 1926.500(d)(1), as set forth in Item 9, is vacated, and a penalty of $120is assessed in lieu thereof.11. The proposed penalty of $40 for the violation of 29 CFR1926.500(b)(1), as set forth in Item 10, is vacated, and a civil penalty of$120 is assessed in lieu thereof.12. The proposed civil penalty of ?none? for the violation of29 CFR 1926.300(b)(2), as set forth in Item 11, is proper and is affirmed.13. The proposed civil penalty of ?none? for the violation of29 CFR 1926.500(e)(1), as set forth in Item 12, is proper and is affirmed.\u00a0SoORDERED in the City and County of Denver, Colorado.?John J.MorrisJudge,OSAHRCApril3, 1974APPENDIXCitationNumber 2ItemNumber 1:? 1903.2 Posting of notice; availability of Act, regulationsand applicable standards. (a) Each employer shall post and keep posted a noticeor notices, to be furnished by the Occupational Safety and HealthAdministration, U.S. Department of Labor, informing employees of theprotections and obligations provided for in the Act, and that for assistanceand information, including copies of the Act and of specific safety and health standards,employees should contact the employer or the nearest office of the Departmentof Labor. Such notice or notices shall be posted by the employer in eachestablishment in a conspicuous place or places where notices to employees arecustomarily posted. Each employer shall take steps to insure that such noticesare not altered, defaced, or covered by other material.ItemNumber 2:? 1926.450 Ladders. (a) General requirements. (2) The use ofladders with broken or missing rungs or steps, broken or split side rails, orother faulty or defective construction is prohibited. When ladders with suchdefects are discovered, they shall be immediately withdrawn from service.Inspection of metal ladders shall include checking for corrosion of interiorsof open end hollow rungs.ItemNumber 3:? 1926.450 Ladders. (a) General requirements. (7) Portableladders shall be used at such a pitch that the horizontal distance from the topsupport to the foot of the ladder is about one-quarter of the working length ofthe ladder (the length along the ladder between the foot and the top support).Ladders shall not be used in a horizontal position as platforms, runways, orscaffolds.ItemNumber 4:? 1926.450 Ladders. (a) General requirements. (9) The siderails shall extend not less than 36 inches above the landing. When this is notpractical, grab rails, which provide a secure grip for an employee moving to orfrom the point of access, shall be installed.ItemNumber 5:? 1926.450 Ladders. (b) Job-made ladders. (12) Cleats shallbe inset into the edges of the side rails one-half inch, or filler blocks shallbe used on the rails between the cleats. The cleats shall be secured to eachrail with three 10d common wire nails or other fasteners of equivalentstrength. Cleats shall be uniformly spaced, 12 inches top-to-top.ItemNumber 6:Subpart M?Floor and Wall Openings, and Stairways.?1926.500 Guardrails, handrails, and covers. (b) Guarding of floor openings andfloor holes. (2) Ladderway floor openings or platforms shall be guarded bystandard railings with standard toe boards on all exposed sides, except atentrance to openings, with the passage through the railing either provided witha swinging gate or so offset that a person cannot walk directly into theopening.ItemNumber 7:? 1926.25 Housekeeping. (a) During the course ofconstruction, alteration, or repairs, form and scrap lumber with protrudingnails, and all other debris, shall be kept cleared from work areas,passageways, and stairs, in and around buildings or other structures. (b)Combustible scrap and debris shall be removed at regular intervals during thecourse of construction. Safe means shall be provided to facilitate suchremoval. (c) Containers shall be provided for the collection and separation ofwaste, trash, oily and used rags, and other refuse. Containers used for garbageand other oily, flammable, or hazardous wastes, such as caustics, acids,harmful dusts, etc., shall be equipped with covers. Garbage and other wasteshall be disposed of at frequent and regular intervals.ItemNumber 8:? 1926.350 Gas welding and cutting. (a) Transporting, moving,and storing compressed gas cylinders. (9) Compressed gas cylinders shall besecured in an upright position at all times except, if necessary, for shortperiods of time while cylinders are actually being hoisted or carried.ItemNumber 9:? 1926.500 Guardrails, handrails, and covers. (d) Guarding ofopen-sided floors, platforms, and runways. (1) Every open-sided floor orplatform 6 feet or more above adjacent floor or ground level shall be guardedby a standard railing, or the equivalent, as specified in paragraph (f)(i) ofthis section, on all open sides, except where there is entrance to a ramp,stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials could create ahazard.ItemNumber 10:? 1926.500 Guardrails, handrails, and covers. (b) Guarding offloor openings and floor holes. (1) Floor openings shall be guarded by astandard railing and toe boards or cover, as specified in paragraph (f) of thissection. In general, the railing shall be provided on all exposed sides, exceptat entrances to stairways.ItemNumber 11:Subpart I?Tools?Hand and Power.?1926.300 General requirements. (b) Guarding. (2) Belts, gears, shafts, pulleys,sprockets, spindles, drums, fly wheels, chains or other reciprocating,rotating, or moving parts of equipment shall be guarded if such parts areexposed to contact by employees or otherwise create a hazard. Guarding shallmeet the requirements as set forth in American National Standards Institutes,B15.1?1953 (R1958), Safety Code of Mechanical Power-Transmission Apparatus.ItemNumber 12:? 1926.500 Guardrails, handrails, and covers. (e) Stairwayrailings and guards. (1) Every flight of stairs having four or more risersshall be equipped with standard stair railings or standard handrails asspecified below, the width of the stair to be measured clear of allobstructions except handrails.”