“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4179 DERR CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 26, 1977DECISIONBefore: BARNAKO, Chairman; MORAN and CLEARY,Commissioners.MORAN, Commissioner:??????????? Adecision of Review Commission Judge John J. Morris, dated November 13, 1974, isbefore this Commission for review pursuant to 29 U.S.C. ? 661(i). That decision, which is attached hereto as Appendix A,held that respondent violated 29 U.S.C. ? 654(a)(2) by failing to comply withthe occupational safety standard codified at 29 C.F.R. ? 1926.28(a) and vacatedfive other alleged violations.??????????? Reviewof this case was directed on the following issues:??????????? 1.Was 29 C.F.R. ? 1926.28(a) properly promulgated particularly in view of thewording change made in December 1972???????????? 2. Ifthe current version of 29 C.F.R. ? 1926.28(a) was improperly promulgated, isthe original version thereof enforceable against the respondent???????????? 3. Isthe original version of 29 C.F.R. ? 1926.28(a) unenforceablyvague???????????? 4.Whether the Administrative Law Judge erred in finding that respondent was notin serious violation of the Act for failure to comply with the standard at 29C.F.R. ? 1926.752(j).??????????? 5.Whether the Administrative Law Judge erred in finding that respondent was notin violation of the Act for failure to comply with the standards at 29 C.F.R. ?1926.450(a)(9), 29 C.F.R. ? 1926.500(d)(1) and 29 C.F.R. ? 1926.550(a)(6).??????????? TheSecretary has withdrawn his exceptions to those portions of the Judge?sdecision vacating the alleged violations of sections 1926.500(d)(1) and1926.550(a)(6). Remaining in issue therefore are the alleged violations ofsections 1926.28(a), 1926.752(j), and 1926.450(a)(9). For the reasons set forthbelow, the Judge?s disposition of these citations is affirmed.[1]??????????? Respondent?sworksite was inspected by an authorized representative of the Secretary ofLabor on June 15, 1973. At the time of the inspection, respondent was engagedin the erection of the skeletal steel frame for a 31 story building in Denver,Colorado. The inspector observed one of respondent?s employees working on thetop edge of a stell girder on the 13th floor. Theemployee was not wearing a safety belt. Respondent was charged with a seriousviolation of section 1926.28(a) in that death or serious injury would result ifa fall should occur.??????????? Theabove-cited standard was initially promulgated on April 17, 1971, pursuant tosection 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. ?333. At that time, it was worded as follows:The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions and where this partindicates the need for using such equipment to reduce the hazards to theemployees.[2] (Emphasis added.)\u00a0??????????? As soworded, it was adopted by the Secretary of Labor on May 29, 1971, as anoccupational safety and health standard pursuant to his authority under 29U.S.C. ? 655(a)[3]to adopt any established Federal standard as an occupational safety and healthstandard for a period of two years from the effective date of the Act withoutregard to the procedural safeguards of the Administrative Procedure Act, 5U.S.C. ? 553. On December 16, 1972, the Secretary published a revision of theconstruction standards contained in Part 1926 of the Code of FederalRegulations. Administrative reasons were given as the purpose for the revision,and the failure to follow the rulemaking procedures provided in theAdministrative Procedure Act was justified on the basis that no substantivechanges were made in the standards contained therein.[4] The only change in section1926.28(a) was the substitution of the word ?or? for the word ?and.? Respondentwas cited under the amended version of the standard.??????????? Thequestion of whether the word change was properly promulgated has been thesource of disagreement within the Commission. The majority has taken theposition that there was no substantive change. Secretary v. SweetmanConstruction Company, OSAHRC Docket No. 3750, March 2, 1976; Secretaryv. Isseks Brothers, Incorporated, OSAHRC DocketNo. 6415, January 29, 1976; Secretary v. Island Steel & Welding, Ltd.,17 OSAHRC 143 (1975); Secretary v. EichleayCorporation, 15 OSAHRC 635 (1975); Secretary v. Carpenter Rigging andContracting Corporation, 15 OSAHRC 400 (1975). I have dissented in each ofthose decisions and concluded that the original version of the standardremained in effect because it was not repealed by the modified version whichwas improperly promulgated. See Secretary v. United States Steel Corporation,OSAHRC Docket No. 2975, November 14, 1974; 1A Sutherland StatutoryConstruction ? 23.24 (4th ed. C. Sands rev. 1972).??????????? Inthe instant case the propriety of the promulgation of the standard is mootbecause we all agree that the evidence is sufficient to establish a violationthereof regardless of whether the changed word is interpreted to mean thealternative or conjunctive. Another standard in Part 1926, 29 C.F.R. ?1926.105(a), requires the use of safety belts when work is performed at heightsin excess of 25 feet. Secretary v. Leon Marrano & Sons, Inc., 17OSAHRC 202 (1975) (concurring opinion). Furthermore, respondent?s employee wasobviously exposed to a hazardous condition by his failure to use a safety beltwhen performing work on the narrow surface of a girder at a height of 13stories. Under these circumstances, we also conclude that section 1926.28(a) isnot unenforceably vague as applied in this case. Secretaryv. General Bronze Architectural Products, 18 OSAHRC 224 (1975).??????????? Respondentwas charged with a serious violation of 29 C.F.R. ? 1926.752(j), in that:?The employer failed to assure that flooropenings were planked over or guarded at the 11th floor level. Employees wereexposed to a fall of 7 floors to temporary planking on the 3rd floor.????????????? Theevidence indicates that the floor opening referred to was an uncovered andunguarded elevator shafting on the 10th floor.[5] A generator had just beenmoved on to the floor through the opening and the general contractor, who wasresponsible for covering floor holes, had not yet replaced the coveringalthough he had been requested to ?keep them covered.???????????? TheJudge held that the evidence failed to establish employee exposure to thisalleged violation. He found that the testimony of the inspector on this matterwas a ?bare legal conclusion? and that his testimony that respondent?semployees were ?in that area? was so indefinite that it was ?of no probativevalue to establish exposure.? We agree with the Judge?s finding and hold thatthe evidence is insufficient to establish exposure under either an?accessibility? or ?actual exposure? rule. See Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20,1976.??????????? Respondentwas also charged with a nonserious violation of 29 C.F.R. ? 1926.450(a)(9),because:?Side rails of ladders did not extend 36inches above landings on 7, 8, 9, 10, and 11th floors.????????????? Withrespect to this charge and the unguarded floor opening charge discussed above,the record indicates that the general contractor at the site was responsiblefor furnishing and installing decking materials below the working floor,keeping floor holes on those floors covered, and providing conforming ladders.??????????? TheUnited States Court of Appeals for the Seventh Circuit has held thatsubcontractors working at a multi-employer construction site are not liableunder the Act[6]for nonserious violations of safety standards when the subcontractors neithercreated, caused, nor were otherwise responsible for the alleged violativeconditions. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir.1975). Finding that the respondent made a reasonable effort to have the ladderdeficiency corrected, we conclude that the Anning-Johnson holding isapplicable in the instant case and that vacation of the violation is required.[7]?Accordingly, the Judge?s decision is affirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryBY: Gloria W. WhiteActing Executive SecretaryDATED: APR 26, 1977?BARNAKO, Chairman, Concurring:??????????? Uponconsideration of the rationale employed by Commissioner Moran, which rationaledoes not in all respects accord with precedents established by a majority ofthe Commission, I find it necessary to state separately my reasons forconcurring in the disposition.Alleged Violation of 29 C.F.R. 1926.28(a)??????????? Althoughthe judge affirmed the citation alleging this violation, Respondent did notpetition for review of his decision or otherwise take exception thereto. Inaddition, it has not presented any argument to us on the issues directed forreview; rather, Respondent states that it has no interest in review.Complainant asks that we affirm the judge?s decision. In accordance with thewell-established Commission policy in such circumstances[8] I would affirm the judge?sdecision but without giving it precedential effect and without reaching thedirected issues. I therefore do not join in Commissioner Moran?s discussion.Alleged Violation of 29 C.F.R. 1926.752(j)??????????? Respondent?sevidence shows that the opening in question had been created for the purpose ofallowing Respondent to lift the generator to the floor above and that thisoperation had just been performed. The judge vacated on a finding that thegenerator could not otherwise have been moved. This finding is reasonable andshould not be disturbed. OklandConstruction Company, 76 OSAHRC 30\/F4, 3 OSHC 2023, 1975 76 OSHD para.20,441 (1976). Therefore vacation is proper in accordance with our rule thatcompliance with the terms of a standard is not required where it would precludeperformance of the work. E.g., WarnelCorporation, 76 OSAHRC 41\/C5, p.5, 4 OSHC 1034, 1035, 1975 76 OSHD para.20,576 at 24,599 (1976), and cases cited therein; Robert W. Setterlin & Sons Company, 76 OSAHRC 53\/D8, p. 9 10,4 OSHC 1214, 1217, 1975 76 OSHD para. 20,682 at 24,774 (1976).Alleged Violation of 29 C.F.R.1926.450(a)(9)??????????? CommissionerMoran?s discussion of this charge is contrary to our prior decisions in which amajority of the Commission expressly declined to follow the opinion of theSeventh Circuit. Anning-Johnson Company, 76 OSAHRC 54\/A2, 4 OSHC 1193,1975 76 OSHD para. 20,690 (1976); Grossman Steel and Aluminum Corporation,76 OSAHRC 54\/D9, 4 OSHC 1185, 1975 76 OSHD para. 20,691 (1976). We said that asubcontractor on a construction site may defend by showing that it madereasonable efforts to have the violative conditions corrected by theresponsible contractor or by the general contractor, or took other appropriatesteps to protect its employees from hazards to which they have access and whichit could reasonably be expected to detect.??????????? Therecord shows that Respondent notified the general contractor that the ladderswere not in compliance and specifically requested that the general contractorprovide ladders of the proper length so that their side rails would extendthirty six inches above landings. The violation was alleged with respect to oneladder out of many on the job site. In my view, Respondent?s actions to protectits employees are reasonable in the circumstances, particularly considering thenature of the alleged violation. Accordingly, I concur in the result. See DataElectric Company, No. 13122 (R.C., March 7, 1977) (concurring opinion); OtisElevator Company, 76 OSAHRC 57\/E7, p. 6, 4 OSHC 1219, 1221 22, 1975 76 OSHDpara. 20,693 at 24,798.?CLEARY, Commissioner, CONCURRING IN PART ANDDISSENTING IN PART:??????????? Iagree with the disposition concerning the alleged violation of the personalprotective equipment standard published at 29 CFR ? 1926.28 (a) for the reasonsassigned by the Chairman.??????????? Ialso concur with the vacation of the alleged violation of the ladder standardpublished at 29 CFR ? 1926.450(a)(9). Although the general contractor wascontractually responsible for compliance with the standard, respondent is asteel erection subcontractor, the employees of which were exposed to theviolative condition. A subcontractor cannot rely upon a contractual provisionto abrogate its responsibility for protecting its employees from exposure tothe hazards contemplated by a standard. See Circle Industries Corp., 4BNA OSHC 1724, 1976 77 CCH OSHD para. 21,119 (No.4356, 1976). When the Secretary proves that a subcontractor?s employees havebeen exposed to violative conditions that the subcontractor neither created norcontrolled, the subcontractor may defend itself by establishing that itprotected its employees by realistic measures taken as an alternative toliteral compliance with the standard. Anning-Johnson Co., 4 BNA OSHC1193, 1975 76 CCH OSHD para. 20,690 (Nos. 3694 &4409, 1976). What is realistic will vary according to the circumstances. Anning-JohnsonCo. at note 16. The ladder hazard here is of a low level of gravity,respondent had requested that the general contractor station ladders inconformity with the standard, and no other realistic alternative was available.Data Electric Co., Inc., 5 BNA OSHC 1077, 1977 78 CCH OSHD para. 21,593 (No. 13122, 1977). Accordingly, I agree thatrespondent has established a defense to the alleged violation.??????????? Idissent, however, to vacating the alleged violation of the standard publishedat 29 CFR ? 1926.752(j) requiring floor openings to be covered or guarded.Commissioner Moran errs in concluding that the Secretary failed to prove thatrespondent?s employees were actually exposed or had access to the unguardedelevator shaft. The Secretary need not prove actual exposure to a violativecondition in order to sustain his burden of proof. He is required to show onlythat employees had access to the violative condition. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975 76 CCH OSHD para. 20,448 (No. 504, 1976). The compliance officertestified that at least some of respondent?s 35 on-site employees were exposedto the shaft.[9]The evidence also shows that the ladders used to reach the floors above andbelow that in which the shaft was located were within a few feet of theunguarded shaft. In order to walk from one ladder to the other, it wasnecessary for employees to pass within a few feet of the shaft. Inasmuch asthis floor was immediately below that on which respondent?s employees wereinstalling metal sheeting on the day of inspection, it is reasonable to inferthat it would have been necessary for employees to use the ladders. I woulddraw this inference. Moreover, the compliance officer testified that during theinspection the foreman acting as respondent?s representative stated thatrespondent?s employees were in the area of the unguarded shaft. This statementwas an admission which was received without objection and was unrebutted. Thetestimony, therefore, has probative value. Morgan & Culpepper, Inc.,5 BNA OSHC 1123, 1977 78 CCH OSHD para. 21,605 (No.9850, 1977). Access to the violative condition has clearly been established onthe basis of this evidence. Gilles & Cotting,Inc., supra. Respondent has failed to rebut the evidence. See PublicImprovements, Inc., 4 BNA OSHC 1864, 1976 77 CCH OSHD para.21,326 (No. 1955, 1976). I would find that respondent?s employees were exposedto the violative condition.??????????? Ialso disagree with the Chairman?s assignment of reasons for vacating theviolation. First, the evidence does not show that respondent had lifted agenerator through the unguarded shaft just before the inspection so thatcompliance at the time of inspection was impossible. Respondent has the burdenof proving the defense of impossibility of compliance, as the cases cited bythe Chairman indicate. See also Brennan v. OSAHRC and Underhill ConstructionCo., 513 F.2d 1032 (2d Cir. 1972). The only evidence on this point consistsof the following testimony:Q: [by respondent?s president andrepresentative at hearing]: We had one situation, Bill, that?when we were citedas a matter of fact, where we?where I first met Mr. Kay [the complianceofficer] and that was where we had left a hole open and didn?t really give theGeneral Contractor sufficient advance notice to plank over the hole or to put aguardrail around the hole and that?s when we jumped that generator and changeshack out of the hole to the floor above and we did correct that situation??A: [by respondent?s site foreman]: Itseemed like it, it seemed like that, that they got the hand rail up aroundthere faster. (Tr. 39 40)?Q: [by the Judge]: I am not much of anIron Worker, what is that [i.e., raising foreman] designation??A: [by respondent?s president]: . . . inthe case of the raising gang foreman here, he had an additional responsibilityand that was to see that the General Contractor had his hand rails placedaround the vacated openings before he jumped out of the hole and has somematerial where he could cover up the hole as soon as we vacated the hole. Andin that particular case, of uncovered holes, and I was there when it happened,we had fallen down on our job there, and got out of that hole without havingany term [sic] there to cover it up and actually, it wasn?t our job to coverthat hole because we are only responsible under the terms of our contract tocover the working deck, but we had an obligation there, I believe to theGeneral Contractor to give him as much advance notice as we could and let himhave his people ready to cover the hole and put his hand rail on . . .[10] (Tr. 43 44)???????????? Inorder to find, as the Chairman does, that the lifting of the generator had?just been performed,? an inference is required.[11] On basis of the abovetestimony, however, I would infer that the operation of lifting the generatorhad been completed a sufficient time before inspection to permit the flooropening to be covered or guarded in compliance with the standard. Even if thetwo inferences are equally reasonable, I would reject the Chairman?s resultbecause respondent has the burden of proving that compliance was impossible onthe ground that it would have precluded performance of its work, and respondenthas failed to meet its burden.??????????? Recently,we stated that when it is impossible to comply literally with a standard, anemployer must take such reasonable alternative means as are available toprotect its employees. Taylor Building Associates, 5 BNA OSHC 1083,197778 CCH OSHD para. 21,592 (No. 3735, 1977) (leadopinion and Chairman Barnako?s concurring opinion).Respondent did not introduce any evidence that alternative means of protectionwere unavailable. It must follow perforce that respondent has also failed tosustain this burden.??????????? Finally,I observe that in my opinion OklandConstruction Company, supra, relied upon in the concurring opinion, iscited too broadly. Okland Constructionis not entirely clear as to its scope. I understand the decision to be nothingmore than a restatement of the Commission?s precedent of generally acceptingjudges? decisions based on credibility determinations. See EvansvilleMaterials, Inc., 3 BNA OSHC 1740, 1975 76 CCH OSHD para.20,187 (No. 3444, 1975). The Chairman?s reliance on the decision in this caseconflicts with the Administrative Procedure Act, 5 U.S.C. ? 551 et seq., whichprovides at section 8(a) that ?. . . the agency has all the powers which itwould have in making the initial decision except as it may limit the issues onnotice or by rule.? The initial decision is that rendered by an administrativelaw judge. While an agency must consider the judge?s decision and the evidenceof record upon which it is based, Cinderella Career and Finishing School,Inc. v. Federal Trade Commission, 425 F.2d 583, 588 (D.C. Cir. 1970), thefindings of the judge are merely part of the record and are not binding on theagency. OKC Corp. v. Federal Trade Commission, 455 F.2d 1159, 1162 (10thCir. 1972). An agency may under some circumstances overrule a judge?s findingbased on the credibility of witnesses observed by the judge. See FederalCommunications Commission v. Allentown Broadcasting Corp., 349 U.S. 358,364 (1955). The Chairman?s position not only rejects these wellestablished principles according an agency a broad scope of review inthe absence of limitation, but also applies a scope of review that isinconsistent with our own rules. See 29 CFR ? 2200.91a(b)(1); 41 Fed. Reg.53015 (1976).[12]\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4179 DERR CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: December 13, 1974APPEARANCES:William J. Kilberg,Solicitor of Labor T. A. Housh, Jr., RegionalSolicitor Henry C. Mahlman, Associate RegionalSolicitor Ronald G. Whiting, Trial Counsel of Denver, Colorado for theSecretary of Labor.\u00a0E. L. Derr, prose of Fort Worth, Texas for the respondent.?STATEMENT OF THE CASEJohn J. Morris, Judge, OSAHRC:??????????? Thisis a proceeding pursuant to 29 USC 659(c) for an adjudication under theOccupational Safety and Health Act of 1970, (29 USC 651, et seq, hereaftercalled the Act). Respondent is contesting certain citations issued bycomplainant under the authority vested in complainant by 29 USC 658.??????????? Thecitations allege that on June 15, 1973 complainant inspected a workplacedescribed as the erection of a 32 story bank building and located at 18th andCalifornia Streets (in Denver, Colorado).??????????? It isfurther alleged that on the basis of the inspection at the above workplacerespondent violated 29 USC 654(a)(2) of the Act by failing to comply withoccupational safety and health standards promulgated by complainant, pursuantto 29 USC 655. Abatement by various dates was proposed.??????????? Threecontested citations were issued on August 7, 1973 and it is alleged that thestandards violated were published in the Code of Federal Regulations ashereinafter noted.??????????? Thedescription of the violation alleged in citation number 1, item 1, states asfollows:The employer failed to assure that safetybelts were used by iron workers during final bolting up and plumbing up. Someemployees were working on outside of beams exposed to a direct fall of 13stories to ground below.???????????? Thecitation alleges that the standard violated is codified at 29 CFR 1926.28(a); acivil penalty of $550 is proposed.??????????? Theforegoing standard as promulgated by complainant provides as follows:? ? 1926.28 Personal protective equipment.?(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.???????????? As tocitation number 1, item 1:??????????? Respondentwas inspected on June 15, 1973 at a construction site which was a steelskeleton framed building under construction at 18th and California Avenues inDenver, Colorado (Tr. 8, 9). The compliance officer observed an employee ofrespondent at the top edge of the steel girder not wearing a belt with lanyardfastened to the building (Tr. 11). There was a potential fall of 13 stories(Tr. 11). The employee was an iron worker and the general superintendentidentified him as an employee of the respondent (Tr. 13; compl?s.ex?s. 1, 2, 3 show the employee on the steel girder; Tr. 12?14).??????????? Forthis alleged serious violation there was an unadjusted penalty of $1,000 (Tr.20, compl?s. ex. 7a). As noted by the complianceofficer if a fall occurred death or serious physical harm was likely (Tr. 21).In computing the final proposed penalty of $550 the compliance officer alloweda 20% credit each for good faith and history, 5% for size (more than 20employees) (Tr. 20?21).??????????? Thedescription of the violation alleged in citation number 2, item 1, states asfollows:The employer failed to assure that flooropenings were planked over or guarded at the 11th floor level. Employees wereexposed to a fall of 7 floors to temporary planking on the 3rd floor.???????????? Thecitation alleges that the standard violated is codified at 29 CFR 1926.752(j).A civil penalty of $550 was proposed.??????????? Theforegoing standard as promulgated by the Secretary provides as follows:? ? 1926.752 Bolting, riveting, fitting-up,and plumbing up.(j) All unused openings, in floors,temporary or permanent, shall be completely planked over or guarded inaccordance with Subpart M of this part.???????????? As tocitation 2, item 1:??????????? Onthe construction site was an open shaft-way involving a potential fall of 7stories (Tr. 15?16). The opening was not planked over nor were there anyguardrails (Tr. 16).??????????? Thecompliance officer indicated that the same fall hazard was involved from thefloor openings as from the steel girders (Tr. 22). Further he used the samemethods and adjustments to arrive at the proposed penalty as he had used inarriving at the proposed penalty of $550 in connection with citation number 1.??????????? Thedescription of the violation alleged in citation number 3, item 1, states asfollows:Side rails of ladders did not extend 36inches above landings on 7, 8, 9, 10 and 11th floors.???????????? Thecitation alleges that the standard violated is codified at 29 CFR 1926.450(a).A civil penalty of ?none? was proposed.??????????? Theforegoing standard provides as follows:? ? 1926.450 Ladders.?(a) General requirements.?(9) The side rails shall extend not lessthan 36 inches above the landing. When this is not practical, grab rails, whichprovide a secure grip for an employee moving to or from the point of access,shall be installed.???????????? As tocitation 3, item 1:??????????? Complainant?sevidence indicated that a ladder did not extend 36 inches above the landing(Tr. 22). Most of the ladders on the jobsite, however, were in compliance (Tr.23). There was no proposed penalty (Tr. 22) as the gravity was low (Tr. 22).Complainant?s exhibit 6 is a photograph taken looking upward on the ladder atlevel 10 showing its landing on the beam where there are no guardrails orplatforms (Tr. 17).??????????? Thedescription of the violation alleged in citation number 3, item 2, states asfollows:Standard guard rails were not provided onthe 7th floor ladder landing platform, nor were ladder landing platforms providedat the 8, 9, 10 and 11th floor levels.\u00a0The citation alleges that the standard violated iscodified at 29 CFR 1926.500(d)(1). A civil penalty of $35 was proposed.?The foregoing standard provides as follows:? ? 1926.500 Guardrails, handrails, andcovers.?(d) Guarding of open-sided floors,platforms, and runways. (1) Every opensided 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) (1) 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 standardtoe-board wherever, beneath the open sides, persons can pass, or there ismoving machinery, or there is equipment with which falling materials could createa hazard.???????????? Citation3, item 2 is illustrated by complainant?s exhibit 6 which is a photographlooking upward on the ladder showing the lack of a guardrails or platforms (Tr.17). Involved was a fall hazard of possible serious injury. The complianceofficer considered the gravity to be less than the gravity involved with thealleged serious violations. He further considered the frequency of theviolation and used the same adjustment factors as he had in connection with theserious violation resulting in a 45% adjustment together with an additional 50%abatement credit; the final proposed civil penalty was $35 (Tr. 23, 24).??????????? Thedescription of the violation alleged in citation number 3, item 3, states asfollows:Maintenance records showing dates andresults of inspections were not available for the two Pecocranes on the jobsite.\u00a0??????????? Thecitation alleges that the standard violated is codified at 29 CFR1926.550(a)(6). A civil penalty of ?none? was proposed.??????????? Theforegoing standard provides as follows:? ? 1926.550 Cranes and derricks.?(a) General requirements.?(6) A thorough, annual inspection of thehoisting machinery shall be made by a competent person, or by a government orprivate agency recognized by the U.S. Department of Labor. The employer shallmaintain a record of the dates and results of inspections for each hoistingmachine and piece of equipment.???????????? Citation3, item 3; involved are unavailable maintenance records. The compliance officerwas advised that the records were not available on the jobsite (Tr. 18);however, it was indicated that such records were available at the company mainoffice in Tyler, Texas (Tr. 18?19, 58). The crane involved is known as a Peco crane, which is a climbing tower crane used for steelerection (Tr. 19). This equipment was owned by respondent (Tr. 19). Thecompliance officer did not propose a monetary penalty. He considered that thegravity of the alleged violation was low (Tr. 24).??????????? Thedescription of the violation alleged in citation number 3, item 4, states asfollows:Iron workers were not using containers to store orcarry bolts. Iron workers were throwing bolts from the 11th to the 12th floor.??????????? Thecitation alleges that the standard violated is codified at 29 CFR1926.752(a)(1). A civil penalty of ?none? was proposed.??????????? Theforegoing standard as promulgated by the Secretary provides as follows:? ? 1926.752 Bolting, riveting, fitting-up,and plumbing-up.?(a) General requirements. (1) Containersshall be provided for storing or carrying rivets, bolts, and drift pins, andsecured against accidental displacement when aloft.???????????? Citation3, item 4: The compliance officer noted that iron workers were not usingcontainers to store or carry bolts and on one occasion he observed the throwingof a bolt from the 11th to the 12th floor (Tr. 19). The compliance officerdescribed this as an ?isolated incident? involving two employees. Other ironworkers were using containers (Tr. 20). The compliance officer recommended nopenalty on the basis that the hazard involved was a possibility of knocking offa bolt and striking someone passing beneath (Tr. 25).??????????? Inconnection with the serious as well as the non-serious violations thecompliance officer stated that all of respondent?s employees were exposed toall of the hazards (Tr. 27).??????????? Cross-examinationdeveloped in part that there had been no serious injuries on this particularjob (Tr. 28); further it was noted that safety belts were available at the jobsite(Tr. 32). Respondent has safety meetings and safety rules and all of thedescribed conditions had been abated (Tr. 33?34).RESPONDENT?S EVIDENCE??????????? Respondent?sevidence indicates that safety belts were issued and were supposed to be worn;further the employees had been instructed to wear them (Tr. 37). However, theemployees do not like to wear them and if all those who did not wear them weredischarged there would be times when they would not have any help available(Tr. 32, 37). The work deck was described as clean (Tr. 38). There was evidencethat the general contractor was responsible for the floors beneath thisrespondent (Tr. 39). Respondent?s letter of August 14, 1973 was offered andreceived in evidence (Tr. 40?41). The matters set forth in the letter indicatethat the floor openings are to be protected by the general contractor under theterms of his contract. Further, respondent noted that he was making everyeffort to make this a safe job and in connection with the citations directingthat certain precautions be taken by all company employees (Tr. 38).??????????? Inconnection with the failure to use safety belts respondent?s presidentinstructed the foreman at the closing conference and later that employeeswithout safety belts were to be fired (Tr. 35, 40?41, 46?47). Previouslyemployees had not been fired or disciplined (Tr. 47).??????????? Respondentholds weekly safety meetings (Tr. 51?52). Disciplining of employees dependsupon availability of help (Tr. 52?53). Respondent?s president indicated thatwhile the iron workers did not like to wear safety belts some progress had beenmade with them (Tr. 32, 56?57).??????????? Afterrespondent contested this enforcement action, and a complaint and an answerhaving been filed by the parties, the case came on for hearing in Denver,Colorado on January 28, 1974. No parties desired to intervene in theproceedings. Notice of the hearing was posted and served on the authorizedemployee representative (Tr. 5).STATEMENT OF JURISDICITION??????????? Respondentis a Texas Corporation having 35 employees and doing business in all of theseveral states west of the Mississippi river with the exception of Californiaand Arizona (Tr. 7, 48?49).??????????? Inview of the above it is apparent that the Occupational Safety and Health ReviewCommission has jurisdiction of the subject matter of this litigation.ISSUES PRESENTED??????????? 1.Can this Judge sua sponte raise the issue of employeeexposure???????????? 2.Does the responsibility to comply with safety regulations fall on the generalcontractor instead of respondent subcontractor as contended by respondent? (Tr.44)??????????? 3. Isrespondent relieved from liability because it bid this contract under theAmerican Institute of Steel construction standards, which places liability onthe general contractor to cover floor openings (Tr. 44, 49, 51).??????????? 4.What civil penalty, if any, is appropriate if a violation is established???????????? In anumber of decisions the Review Commission has clearly ruled that exposure torespondent?s employees is a necessary element to sustain a violation. Secretaryv. Hawkins Construction Company, 8 OSAHRC 569, (May 20, 1974); Secretaryv. City Wide Tuckpointing Company, OSAHRC Docket Number 247, (May 24,1973); Secretary v. Otis Elevator Company, OSAHRC Docket Number 688(October 8, 1974). In Secretary v. Sletten Construction Company, OSAHRCDocket Number 967 (October 3, 1974), the Review Commission held, in part,A violation cannot be affirmed unless theevidence establishes that some of respondent?s employees were exposed to thealleged hazard.\u00a0??????????? Inview of the Review Commission pronouncements it appears that a ReviewCommission Judge is obliged, sua sponte, to raise theissue of employee exposure.??????????? As tocitation number 1, item 1 the transcript shows exposure in that an employee ofrespondent was observed not wearing a belt (Tr. 11, 12). The employee wasidentified by respondent?s superintendent (Tr. 12?14). Citation number 1, item1 1 should be affirmed; no factual controversy was presented.??????????? As tocitation number 2, item 1: the transcript fails to indicate exposure.Respondent?s notice of contest as to this citation stated as follows:We had just jumped a generator weldingunit out of this opening and the general contractor had not covered theopening.???????????? Theabove admission does not constitute a sufficient showing of employee exposure.The task of moving a generator unit through the opening cannot be performedwith the floor opening covered. Citation number 2, item 1 should be vacated.??????????? Citationnumber 3, items 1, 2 and 3 fail to reflect employee exposure and the citationsand all proposed penalties therefor should be vacated.??????????? Citationnumber 3, item 4 (throwing of bolts) reflect employee exposure but the facts donot establish a violation of the standard. Two employees were not usingcontainers to carry or store bolts (Tr. 20). However, the standard requiresthat ?containers shall be provided . . ..? Failure to use does not establishthat the containers were not provided. Further it must be noted that other ironapparently had been provided with containers (Tr. 20). Citation number 3, item4 and the proposed penalty of ?none? should be vacated.??????????? Thetestimony of the compliance officer that Derrconstruction employees were involved or were exposed to all of the hazards (Tr.27) is a bare legal conclusion of no supporting evidentiary value; further thetestimony to the effect that respondent?s superintendent stated Derr employees were ?in that area? (Tr. 28) is of noprobative value to establish exposure.??????????? Oneof the contentions of respondent is that the responsibility for safetyregulations falls on the general contractor as he is the representative of theowner. The Congressional mandate does not recognize a delegation ofresponsibility from a sub-contractor to a general contractor or to any otherperson. Irrespective of a contractual relationship between contractor andsub-contractor the law is clear that an employer is responsible for the safetyof his own employees if those employees are exposed to the particular hazardthat falls within the purview of the standard violated. Secretary v. HoffmanElectric Company, OSAHRC Docket Number 2039 (May 1974).??????????? Respondent?scontention that it is the owner?s responsibility to cover floor openings (inaccordance with AISC code; Tr. 49) cannot be sustained. As noted above theobligation of an employer to protect his own employees cannot be delegated oravoided by industry standards.??????????? As tothe appropriateness of the penalty: it is the obligation of the ReviewCommission to consider the appropriateness of the penalty and to make anindependent analysis apart from the recommendations of the Secretary.??????????? Section17(j) of the Act (29 USC 661(i)) provides as follows:?The Commission shall have full authorityto assess all civil penalties provided in this section, giving dueconsideration to the appropriateness of the penalty with respect to the size ofthe business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of previous violations.????????????? Asnoted by the Review Commission in previous cases the statutory factors are notnecessarily to be accorded equal weight in a given case nor does the Commissiongive a particular factor the same weight under different factual situations. Secretaryv. Nacirema Operating Company, 1 OSAHRC 33; Secretary v. BroadviewConstruction Company, OSAHRC DOCKET NO. 124, Rev. Comn.,1973. Following the Review Commission criteria the most singularly importantelement is the gravity of the violation and in connection therewith thefollowing elements, among other must be considered: the number of employeesexposed to the risk of injury; the duration of the exposure; the precautionstaken against injury, if any; and the degree of the probability of anoccurrence of an injury. In connection with the alleged serious violationnumber 1 the employee was shown to be at the top edge of the steel girder (Tr.11). The duration of the exposure was not indicated. No precautions were takenby this employee against the risk of injury, however, safety belts wereavailable (Tr. 32). The degree of probability of an occurrence of an injury isnot indicated in the record although if an accident occurred the employeedescribed in serious citation number 1 would be subject to a 13 story fall tothe outside or a 20 foot fall to the inside of the building (Tr. 14). Such afall would involve death or serious physical injury. Considering all thestatutory criteria a penalty in the amount of $300 is warranted for citationnumber 1. All other citations and proposed penalties are to be vacated for thereasons heretofore stated.FINDINGS OF FACT??????????? 1.Respondent is a Texas corporation doing business in all states west of theMississippi River with the exception of California and Arizona (Tr. 7, 48?49).??????????? 2.Respondent is a contractor in the steel erection business having approximately35 employees (Tr. 7, 48).??????????? 3.The facts as to the alleged violation set forth in citation 1, item 1 are setforth in the uncontroverted statement of evidence which is adopted by referenceherein (Summary).??????????? 4.The record as to the alleged violation of citation 2, item 1 and citation 3,items 1, 2 and 3 fails to establish employee exposure. (Totality of record)??????????? 5.The facts relied on to establish a violation of citation 3, item 4 fail topresent a case within the purview of the standard. (Summary)CONCLUSIONS OF LAW??????????? 1.Respondent is and was at all times relevant to the issues herein, engaged in abusiness affecting commerce within the meaning of 29 USC 652 (Facts 1).??????????? 2.Respondent is and was at all times herein mentioned, an employer within themeaning of 29 USC 652(5) and subject to the provisions of the standardspromulgated under 29 USC 655 (Facts 1, 2).??????????? 3.Respondent violated 29 CFR 1926.28(a) and citation 1, item 1 should be affirmed.(Facts 3)??????????? 4.The proposed civil penalty of $550 for the violation established in thepreceding paragraph should be vacated and a penalty of $300 is assessed in lieuthereof.??????????? 5.Respondent did not violate 29 CFR 1926.752(j) and citation 2, item 1 should bevacated. (Facts 4)??????????? 6.The proposed civil penalty of $550 for the violation alleged in the precedingparagraph should be vacated.??????????? 7.Respondent did not violate 29 CFR 1926.450(a)(9); 29 CFR 1926.500(d)(1); or 29CFR 1926.550(a)(6) and citation 3, items 1, 2 and 3 should be vacated; furtherthe proposed civil penalties respectively of ?none?, $35, and ?none? should bevacated. (Facts 4)??????????? 8.Respondent did not violate 29 CFR 1926.752(a)(1) and citation number 1, item 4should be vacated; further the proposed civil penalty of ?none? should bevacated. (Facts 5)ORDER??????????? Basedon the foregoing findings of fact and conclusions of law it is hereby ADJUDGEDAND ORDERED:??????????? 1.Citation 1, item 1 for the alleged violation of 29 CFR 1926.28(a) is affirmed.??????????? 2.The proposed civil penalty of $550 for the violation established in thepreceding paragraph is vacated and a civil penalty of $300 is established inlieu thereof.??????????? 3.Citation 2, item 1 for the alleged violation of 29 CFR 1926.752(j) is vacated.??????????? 4.The proposed civil penalty of $550 for the violation alleged in the precedingparagraph is vacated.? Items \u00a0 \u00a0 Standards Allegedly Violated \u00a0 \u00a0 Proposed Penalty \u00a0 \u00a0 1 \u00a0 \u00a0 29 CFR 1926.450(a)(9) \u00a0 \u00a0 None \u00a0 \u00a0 2 \u00a0 \u00a0 29 CFR 1926.500(d)(1) \u00a0 \u00a0 $35 \u00a0 \u00a0 3 \u00a0 \u00a0 29 CFR 1926.550(a)(6) \u00a0 \u00a0 None \u00a0 \u00a0 4 \u00a0 \u00a0 29 CFR 1926.752(a)(1) \u00a0 \u00a0 None \u00a0 \u00a0 \u00a0Arevacated.\u00a0So ORDERED inthe City and County of Denver, Colorado.\u00a0John J. MorrisJudge, OSAHRCNovember 13, 1974\u00a0[1] No question hasbeen raised regarding the Judge?s vacation of the citation allegingnoncompliance with 29 C.F.R. ? 1926.752(a)(1). We affirm for the reasons givenby the Judge.\u00a0[2] 36 Fed. Reg. 7347(1971).\u00a0[3] 29 C.F.R. ?1910.12, 36 Fed. Reg. 10469 (1971). The standard, originally designated as 29C.F.R. ? 1518.28(a), was redesignated as 29 C.F.R. ? 1926.28(a) on December 30,1971. 36 Fed. Reg. 25232 (1971).\u00a0[4] 37 Fed. Reg.27503 (1972).[5] The pleadingswere amended at the hearing to conform to the evidence under Rule 15(b) of theFederal Rules of Civil Procedure.[6] The Occupational Safety and HealthAct of 1970, 84 Stat. 1590, 29 U.S.C. ? 651 et seq.\u00a0[7] I would also vacate this chargebecause the record fails to prove, by a preponderance of the evidence, actualexposure of respondent?s employees to the allegedly hazardous conditions.[8] E.g., General Motors Corp.,76 OSAHRC 149\/C9, 4 OSHC 1946, 1976 77 OSHD para. 21,420 (1976); John R.Davies & Son, 76 OSAHRC 48\/C13, 4 OSHC 1173, 1975 76 OSHD para. 20,634(1976); Abbott-Sommer, Inc., 76 OSAHRC 21\/A2, 3 OSHC 2032, 1975 76 OSHDpara. 20,428 (1976).[9] The majorityrejects this testimony as an unsupported legal conclusion having no probativevalue. I disagree with this assessment of opinion testimony on a matter notrequiring expert knowledge. Exposure is a term connoting factual as well aslegal meaning when drawn from the observations of a witness. See generallyMcCormick, Evidence ? 11 and ? 12 (2d ed. Cleary, et al. 1972). Thistestimony was given in the context of responding to a question of fact, notlaw. Testimony of such a nature is admissible under Fed. R. Ev. 701 and 704.See also the ?collective facts? rule.[10] As the Chairmanstated, Commissioner Moran?s reliance on the Seventh Circuit?s Anning-JohnsonCo., supra, is improper. The quoted testimony clearly indicates thatrespondent did not take all realistic alternative means to protect itsemployees as required by our Anning-Johnson Co., supra, decision. Itcould have and should have informed the general contractor of its intended useof the shaft prior to use.\u00a0[11] As this discussion indicates, boththe Judge and the Chairman failed to distinguish between two distinct periodsof time: the time during which the generator was being lifted through the shaftand the time of the inspection. Only after making this distinction can anaccurate analysis be made.\u00a0[12] Commission Rule 91a provides asfollows:? 2200.91a Review by the Commission.(b) Petitions for discretionary reviewshall be filed only upon one or more of the following grounds:(1) A finding of material fact is notsupported by a preponderance of the evidence.”