“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3257 DIC-UNDERHILL, A JOINT VENTURE, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 31, 1976?DECISIONBefore BARNAKO,Chairman; MORAN and CLEARY, Commissioners.CLEARY,Commissioner:Thedecision of Administrative Law Judge Jerome C. Ditore, rendered March 11, 1974,is before the Commission pursuant to section 12(j) of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ? 651 et seq. [hereinafter ?the Act?]. Therespondent employer petitioned for review, and orders for review were issuedconcerning essentially the issue of perimeter guarding. The case has beenbriefed by both parties.OnApril 11, 1973, respondent, a joint venture, was engaged in the construction ofan apartment building in New York City. On that date, respondent?s worksite wasinspected by an OSHA compliance officer. As a result of this inspection, acitation was issued alleging four violations of occupational safety and healthstandards promulgated by the Secretary of Labor pursuant to section 6 of theAct.Respondentcontested only the first two items of this citation. Item #1 alleged aviolation of 29 CFR ? 1926.500(d)(1)[1]for failing to guard open-sided floors on the first, second, and third floorlevels of the building under construction. At the hearing the Secretarywithdrew the alleged violation of this standard in regards to the third floorlevel. Item #2 alleged a violation of 29 CFR ? 1926.25(a)[2]for failure to keep the work area clear of scrap lumber and other debris.Therecord in this case was established solely by the testimony of the complianceofficer. Respondent presented no witnesses nor any other evidence in itsbehalf, limiting its participation in the hearing to cross-examination of theSecretary?s witness.TheJudge affirmed the citation for violation of 29 CFR ? 1926.25(a). We havereviewed the entire record, and conclude that his determination on this issuewas correct. We therefore adopt his findings and conclusions with respectthereto and affirm the finding of a violation of 29 CFR ? 1926.25(a). As to thecitation for violation of 29 CFR ? 1926.500(d)(1), however, the Judge foundthat a violation existed on only the second floor level of construction. Hevacated that part of the citation that charged a violation on the first floorlevel.Forthe reasons that follow, we hold that the Judge erred in vacating that part ofthe citation charging a violation of 29 CFR ? 1926.500(d)(1) at the first floorlevel. We find that respondent was in violation of that standard at both thefirst and second levels of the construction site in issue. The Judge?s decisionis therefore modified insofar as it is necessary to reflect our holding in thisregard.Asa preliminary matter, we must answer respondent?s argument that the standard at29 CFR ? 1926.500(d)(1) is not applicable to the work being performed byrespondent at the time of the inspection in this case. Respondent, as concretesubcontractor, was responsible for the performance of the concrete work on theproject, which work included the building of forms, the pouring of concrete,and the stripping of these forms for each floor of the building and the columnssupporting these floors.Brieflystated, respondent?s argument is as follows: Structural concrete constructionactivity is specifically covered in Subpart Q of 29 CFR Part 1926 and thespecific standards contained therein; Subpart Q does not require perimeterprotection; therefore, the general standard requiring perimeter protectionfound in Subpart M at 29 CFR ? 1926.500(d)(1) does not apply.Theidentical argument was made by this respondent and rejected by the Commissionin Dic-Underhill, No. 3725 (October 16, 1975). As we did in that case,we herein adopt Judge Ditore?s resolution of this issue and hold that 29 CFR ?1926.500(d)(1) is applicable to the structural concrete construction workengaged in by respondent.Turningto the alleged violation of 29 CFR ? 1926.500(d)(1) on the first floor level,we find the following unrefuted facts: The open-sided floor on this level wasunguarded; the drop from this opensided floor to ground level was greater thansix feet; two of respondent?s employees were operating a power saw on this levelapproximately ten feet from the edge of the open-sided floor.Basedon these facts, there can be no doubt that respondent was in violation of thestandard in view of the holding in Brennan v. O.S.H.R.C. and UnderhillConstr. Co., 513 F.2d 1032 (2d Cir. 1975). In that case the Court held thatwhere an employer is in control of an area and responsible for its maintenance,to prove a violation of the Act the Secretary ?need only show that a hazard hasbeen committed and that the area of the hazard was accessible to the employeesof the cited employer . . .? 513 F.2d at 1038. The existence of a hazard isestablished by the fact that the standard was not complied with, i.e., therewere no guardrails on this open-sided floor which was more than six feet above groundlevel.Thatrespondent was in control of this area at the time of this violation is notdisputed. Also exposure of respondent?s employees to this hazardous conditionis clearly established by the fact that two employees were working on thislevel ten feet from the unguarded edge. See, Underhill Constr. Co., supra,513 F.2d at 1039.TheJudge?s finding that these two employees were not exposed to this hazard is,therefore, hereby expressly overruled. We add parenthetically that the standarddoes not rigidly require the use of standard railings. An equivalent form ofstructural protection is expressly contemplated by its terms. Warnel Corp.,No. 4537 (March 31, 1976). Moreover, the employer may pursue the use ofadditional forms of equivalent protection for its employees under the varianceprocedure provided in section 6(d) of the Act.Eachof the violations charged in the citation were classified as not ?serious? forpenalty purposes. The Judge gave due consideration to the factors specified insection 17(j) of the Act in determining an appropriate penalty. The violationof 29 CFR ? 1926.25(a) was found to be of average gravity and a penalty of $45was assessed. We affirm that assessment. The violation of 29 CFR ?1926.500(d)(1) was found to be more grave. We agree, and affirm the Judge?spenalty assessment of $200 for the violation.It is soORDERED.?FOR THECOMMISSION:William S.McLaughlinExecutiveSecretaryDATED: MAR 31,1976?MORAN,Commissioner, Dissenting:Withthis decision, the Commission promulgates a new rule under which citedemployers will henceforth be presumed guilty until they can prove themselvesinnocent. Commissioner Cleary has long maintained that when an inspector citesan employer because the requirements of some safety standard are not beingobserved, the establishment of that fact is sufficient to convict the citedemployer unless he can prove that no employee could be hurt as a result of thatnoncompliance. See e.g., Secretary v. Bechtel Corporation, 12 OSAHRC774, 778 (1974); Secretary v. W. B. Meredith II, Inc., 9 OSAHRC 245, 248n.2 (1974); Secretary v. J. E. Roupp & Company, 7 OSAHRC 919, 926(1974).Untilthis decision none of the Judges and no other member of this Commission hasagreed with such a radical departure from the presumption-of-innocence doctrinethat has been part of the very foundation of American jurisprudence for 200years. Now, however, Mr. Barnako has joined hands with Mr. Cleary in a maneuverto shift the burden of proof from the Secretary of Labor to the cited employer.It appears as a single sentence in their decision in this case:?The existence of ahazard is established by the fact that the standard was not complied with . …?\u00a0Heretofore,the existence of a hazard had to be proved by evidence which established thatan employee of a cited employer was exposed to danger as a result ofnoncompliance with the cited standard. see, e.g., Secretary v. Otis ElevatorCo., 12 OSAHRC 127 (1974); Secretary v. Sletten Construction Co., 12OSAHRC 40 (1974); Secretary v. Hawkins Construction Co., 8 OSAHRC 569(1974). This new Barnako-Cleary rule will allow the Secretary of Labor to issuemore citations for it will no longer be necessary for inspectors to collectevidence showing that one or more employees could be injured because ofnoncompliance with a standard?or even that there were any employees at the jobsite. The cited employer must prove such things as a defense. If he is unableto do so, the violation will be established.Inote that this shift in the burden of proof is not only contrary to Americanjurisprudence, but it is inconsistent with the purposes of this Act. The verypurpose for the enactment of Federal job safety legislation was the reductionin work injuries and diseases. If no injury to employees can result fromnoncompliance with an occupational safety and health standard, then to issuecitations in such cases is a waste of the time and resources which Congress?andthe American taxpayers?have provided for accident-reduction (as distinguishedfrom citation-issuance).Boththe Administrative Procedure Act (APA) and the Commission?s Rules of Procedurealso are contrary to this Barnako-Cleary presumption-of-guilt rule. Congressprovided in the Act that job-safety hearings shall be in accordance with theAPA. 29 U.S.C. ? 659(c). The APA specifies that:.. . the proponent of a[n] . . . order has the burden of proof.? 5 U.S.C. ?556(d).TheSecretary of Labor, of course, is the proponent in all cases before thisCommission since he seeks an order upholding his citation and penaltyproposals.Rule73(a) of the Commission?s Rules provides that?In all proceedingscommenced by the filing of a notice of contest, the burden of proof shall restwith the Secretary [of Labor].? 29 C.F.R. ? 2200.73(a).?Both of theforegoing requirements, however, have been disregarded by Messrs. Barnako andCleary.Itis my opinion that Judge Ditore correctly decided this case and his decision(which I herein incorporate by reference and attach hereto as Appendix A)should be affirmed in its entirety.[3]I therefore disagree with the Commission?s reversal of his holding that therewas no failure to comply with the requirements of 29 C.F.R. ? 1926.500(d)(1) onthe first floor of the building.Inmy dissenting opinion in Secretary v. Gilles & Cotting, Inc., OSAHRCDocket No. 504, February 20, 1976, I discussed at length the reasons foradhering to prior Commission precedent requiring complainant to show actualemployee exposure. Although I will not repeat those reasons here, I will saythat I am in full agreement with Judge Ditore?s application of that rule in hisdecision in this case.Mycolleagues correctly note that the only evidence of employee exposure on thefirst floor was that two employees were operating a power saw about ten feetfrom the edge. The Judge considered this evidence and reasoned as follows:?Whenis an employee exposed to any given hazard is always a difficult question, andcannot be determined with any degree of precision. There are no devices or instrumentswhich will indicate that an employee ten or more feet from a hazard is exposedto that hazard. An employee working at the edge or within two to five feet ofan unguarded open-sided floor would no doubt be exposed to that hazard. Butwhat is the outermost distance limits beyond which exposure no longer exists?To this Judge, there is no rigid standard or formula by which exposures tohazards can be determined. Each case must be decided on its own facts andcircumstances.?Some of thefactors to be considered in determining exposure are:1.The distance from the hazard to an employee?s work area;2.the work being performed by the employee;3.the number of employees working in the area;4.the housekeeping conditions, if any, in the work and hazard area; and5.the activities and movements required by an employee in the performance of hiswork.\u00a0Inthe instant case, the only evidence presented is that two employees ofRespondent were operating a power saw an estimated distance of ten feet from anunguarded open-sided floor. There is no evidence that the work of theseemployees required them to move any appreciable distance from their power sawto the hazard, or that the pathway to their work or supplies would bring themcloser to the edge of the floor, or that the very nature of their work wouldexpose them to the hazard. The evidence was insufficient to establish that poorhousekeeping conditions would cause them to work or move closer to the hazard.?Under the facts and circumstances of thiscase, this Judge cannot find that these two employees were exposed to thehazard of an unguarded open-sided floor on the plaza first floor level.?JudgeDitore?s decision is not only more manifestly just and reasonable than that ofmy colleagues, but it is also consistent with American jurisprudence, thepurposes of the Act, the Commission?s Rules of Procedure and the AdministrativeProcedure Act.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3257 DIC-UNDERHILL, A JOINT VENTURE, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: April 10, 1974\u00a0APPEARANCES:Francis V. LaRuffa, RegionalSolicitor U. S. Department of Labor 1515 Broadway, New York, New York Attorneyfor Complainant By: Louis D. DeBernardo, Esq. of Counsel\u00a0Norton, Sachs, Molineaux &Pastore 230 Park Avenue, New York, New York Attorneys for Respondent By:William J. Pastore, Esq. of Counsel?DECISIONAND ORDER?Ditore, J.PRELIMINARYSTATEMENTThisis a proceeding pursuant to Section 10 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), contesting aCitation issued by the Complainant against the Respondent under the authorityvested in the Complainant by Section 9(a) of the Act.TheCitation alleged that as a result of the inspection of a workplace under theownership, operation and control of the Respondent, located at 300 East 56thStreet, New York, New York, and described as a construction site, theRespondent violated Section 5(a)(2) of the Act by failing to comply withcertain occupational safety and health standards promulgated by the Secretaryof Labor pursuant to Section 6 thereof.TheCitation,[4]issued May 9, 1973, alleged that the violations resulted from Respondent?sfailure to comply with standards promulgated by the Secretary by publication inthe Federal Register on December 16, 1972 (37 F.R. 27543 and 27509), andcodified in 29 CFR 1926.500(d)(1) and 1926.25(a).Thedescriptions in the Citation of the above standard violations, and thestandards as promulgated by the Secretary are as follows:? Item 1 ofCitation 29 CFR 1926.500(d)(1)??Failure to guard every open-sided floor orplatform 6 feet or more above adjacent floor or ground level by a standardrailing at the following locations:(a) 1st, 2nd and 3rdfloors on 55th Street side of building.?(b) 1st and 2ndfloors on 56th Street side of building.??Standard??(d) Guarding of open-sided floors, platforms,and runways. (1) Every open-sided floor or platform 6 feet or more aboveadjacent floor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(i) of this section, on all opensides, except where there is entrance to a ramp, stairway, or fixed ladder. Therailing shall be provided with a standard toe board wherever, beneath the opensides, persons can pass, or there is moving machinery, or there is equipmentwith which falling materials could create a hazard.?? Item 2 of Citation?29 CFR 1926.25(a)?Failure to keep allwork areas cleared of scrap lumber with protruding nails, forms and otherdebris during the course of construction.?Standard?(a) During thecourse of construction, alteration, or repairs, form and scrap lumber withprotruding nails, and all other debris, shall be kept cleared from work areas,passageways and stairs, in and around buildings or other structures.??Pursuantto the enforcement procedure set forth in Section 10(a) of the Act, theRespondent was notified by letter dated May 9, 1973, from Nicholas A.DiArchangel, Area Director of the New York City area, that the OccupationalSafety and Health Administration, U. S. Department of Labor, proposed to assessa $210.00 penalty for the violation alleged in Item 1 of the Citation, and a$115.00 penalty for the violation alleged in Item 2 of the Citation.Afterthe proper pleadings were filed, a hearing was held on September 7, 1973, atNew York, New York.ISSUES1.Whether 29 CFR 1926.500(a)(1) applies to Respondent?s workplace.2.If the standard applies, whether Respondent was in violation of the standard.3.If Respondent was in violation, whether the proposed penalty for the violationis reasonable.4.Whether Respondent violated 29 CFR 1926.25(a).5.If Respondent violated the standard, whether the proposed penalty for thisviolation is reasonable.STATEMENTOF THE EVIDENCEAtthe hearing, the parties stipulated that: the Respondent Underhill ConstructionCorporation was a New York corporation with a place of business at 212?02 41stAvenue, Bayside, New York; the Respondent Dic Concrete Corporation was a NewYork corporation with a place of business at 820 Elmont Road, Elmont, New York;Respondents trade as Dic-Underhill a Joint Venture, with a place of business at212?02 41st Avenue, Bayside, New York; Respondents used cranes, trucks andmails which were manufactured outside the State of New York, and concrete whichwas manufactured in Norway; Respondents employed a daily average of employeesin excess of one thousand; and Respondent Dic-Underhill was contesting onlyItems 1 and 2 of the Citation, and the respective penalties proposed for theseitems. (T. 8?9)[5]COMPLAINANT?SCASEOnApril 11, 1973, Daniel Marra, a Compliance Officer for the Occupational Safetyand Health Administration, inspected Respondent?s worksite located at 300 East56th Street, New York, New York. He was accompanied on his inspection byRespondent?s foreman, a Mr. Garfalo. (T. 10?11, 14, 16)a.The WorksiteTheworksite was an apartment building, located between 55th and 56th Streets, andFirst and Second Avenues, New York, New York, in its first stages ofconstruction. (T. 18, 19)Thebuilding was of concrete construction with a foundation. Work had progressed tothe second floor of the structure. (T. 18) The first level above ground levelwas the plaza-first floor level. (See Exh. C?1, T. 2a; T. 24?25)b.Officer Marra?s Observations on April 11, 1973?1. 29 CFR 1926.500(a)(1)?OfficerMarra observed that the open-sided floor of the plaza-first floor area wascompletely unguarded. The drop from the open-sided floor on this level to theground level was about 10 or 12 feet. (T. 20, 21) Exhibit C?1, a photographtaken by Officer Marra on April 11, 1973, depicts the plaza area in theforegound, and the first and second levels in the background. (T. 24, 26)Officer Marra further observed two of Respondent?s employees operating a powersaw on the plaza area about ten feet from an unguarded open-sided floor on the56th Street side of the building. (T. 30, 31, 35, 37, 90, 91)Onthe second floor, Officer Marra observed that: the open-sided floor wascompletely unguarded; about fifty of Respondent?s employees were working onthis level pouring concrete; the drop from the second floor to ground level onthe 56th Street side was about 22 feet, and from the 55th Street side about 10to 12 feet; and none of Respondent?s employees were wearing any safetyequipment. (T. 19, 21, 22, 23, 24, 27, 28, 29, 30, 38, 39, 40?45, 47; Exhs.C?1, C?2)OfficerMarra stated that Respondent?s employees, after his inspection on April 11,1973, were removed from the job site, and did not return to work until the morningof April 13, 1973, when perimeter guards had been installed. (T. 51?53) Duringthat period of time, no employee of Respondent was exposed to the hazard ofunguarded open-sided floors. (T. 51, 102?103)Theviolation of 29 CFR 1926.500(d)(1) was deemed serious in that an accident dueto the violation would probably result in serious or fatal injury to anemployee. (T. 62) Based on the gravity of the violation an unadjusted penaltyof $420.00 was set which was reduced by a 50% abatement credit to a proposedpenalty of $210.00. (T. 62) No credit was given for size as Respondent employedin excess of 99 employees at the worksite. (T. 61) No credit was given for goodfaith and prior history as Respondent had been cited for similar violations onprior occasions at different worksites. (T. 60, 61?62)2.29 CFR 1926.25(a)?HousekeepingOfficerMarra during his walk-around on the plaza-first floor level, observed lumber,some with nails, and debris strewn all over this area. He found no clear aislespace, and had ?to pick? his way through the lumber and debris to avoidtripping or stumbling. This housekeeping condition existed during OfficerMarra?s three day inspection. (T. 48 49, 50; Exh. C?1, Plaza area)OfficerMarra further stated that Respondent?s employees had to cross this plaza areato reach the second floor (T. 51); and that two of Respondent?scarpenter-employees had to walk through the debris and lumber to reach thepower saw they were working on the plaza level. (T. 58)Thehazard involved tripping over debris and lumber. (T. 63) An unadjusted penaltyof $320.00 based on the gravity of the violation was reduced 50% for abatementto a proposed penalty of $215.00. No credit was given for size, prior historyor good faith. (T. 63)RESPONDENT?SCASERespondentpresented no witnesses nor any other evidence on its behalf, but rested at theend of Complainant?s case. (T. 103?104)Respondent?scross-examination of Complainant?s witness was directed exclusively to the housekeepingviolation, and to the number, if any, and locations of Respondent?s employeeson the plaza-first floor level. (T. 69?92)Respondentin its post-hearing brief, raises a legal defense based on the inapplicabilityof standard 29 CFR 1926.500(d)(1) to the work it was performing at the job siteon April 11, 1973. (Brief, pp. 3?7)OPINIONRespondentwas cited for a violation of 29 CFR 1926.500(d)(1). This standard aspromulgated provides in pertinent part as follows:?(1) Everyopen-sided floor or platform 6 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing, or the equivalent, as specifiedin paragraph (f)(i) of this section, on all open sides, except where there isentrance to a ramp, stairway, or fixed ladder. . . .??The descriptionof this violation in the Citation (item 1) states:?Failure to guardevery open-sided floor or platform 6 feet or more above adjacent floor orground level by a standard railing at the following locations.a) 1st, 2nd and 3rdfloor on 55th Street side of building.[6]?b) 1st and 2ndfloors on 56th Street side of building.\u00a0Theevidence, unrefuted, establishes that the open-sided first and second floors onthe 55th and 56th Street sides of the building were completely unguarded; andthat the drop to ground level was greater than six feet. The evidence furtherestablishes that on April 11, 1973, Respondent had a large number of employeeson the second floor exposed to this hazard, and had two employees on theplaza?first floor area about ten feet from an unguarded open-sided floor on the56th Street side.Respondentdoes not refute the above facts but raises the legal defense that 29 CFR1926.500(d)(1) is not applicable to the work it was performing at the job site.(Brief, pp. 3?7) If Respondent?s legal contention is correct, the Citation andproposed penalty for a violation of 29 CFR 1926.500(d)(1) must be vacated.Itis Respondent?s position that it was engaged in structural concreteconstruction work; and that this work is specifically covered by Subpart Q of29 CFR Part 1926 and the specific standards therein. Therefore the generalstandard 29 CFR 1926.500(d)(1) found in Subpart M is not applicable. (Brief pp.3?7)Respondentstates that Subpart Q sets forth standards which are applicable to allequipment and materials used in concrete construction work, and provides astandard to protect concrete construction employees placing and tyingreinforcing steel. Respondent reasons that since Subpart Q provides protectionfor some concrete construction employees working at heights (29 CFR1926.700(b)) but not for protection against unguarded floor perimeters, itfollows that no safety protection in the form of perimeter guarding was deemednecessary. Therefore Subpart Q required no perimeter protection for employeeswho were performing, as were Respondent?s employees, concrete forming andstripping work. (Brief, pp. 3?7)Complainantreplies that Subpart Q does not have a specific standard for perimeterguarding. Therefore the rule of 29 CFR 1910.5(c)(2) requires that generalstandard 29 CFR 1926.500(d)(1) for perimeter guarding must apply.(Complainant?s Brief, Point II)Respondentcounters in its supplementary brief that Complainant?s argument must fallbecause 29 CFR 1926.500(d)(1) is a general standard which must give way tospecific standard, 29 CFR 1926.701(a). Further 29 CFR 1910.5(c)(2) is notcontrolling because that section requires that ?none? of the specific standardsapply whereas Subpart Q does have ?some? specific provision for perimeterprotection. (Supp. Brief, pp. 1?3)29CFR 1910.5(c)(2) provides:?. . ., any standardshall apply according to its terms to any employment and place of employment inany industry, even though particular standards are prescribed for the industry,as in Subpart B [Section 1910.12(a) Construction] or Subpart R of this part[special industries], to the extent that none of such particular standardsapplies. To illustrate, the general standard regarding noise exposure inSection 1910.95 applies to employments and places of employment in pulp, paperand paper board mills covered by Section 1910.261.??Itis clear from the above section that the safety and health standards found in29 CFR part 1926 are particular standards applicable to the construction industryas a whole. There are occasions when these specific standards do not cover orgive protection to construction employees engaged in certain specialties ofwork. Where these instances occur other specific standards are set forth tocover the work being performing. To illustrate, 29 CFR 1926.500(d)(1) dealingwith perimeter floor guarding in the construction industry does not affordprotection to concrete construction employees working 6 or more feet above anyadjacent working surface, placing and typing reinforcing steel in walls, piers,columns, etc. To protect the employees working in this specialty, 29 CFR1926.700(b)(i) requires that these employees use safety belts or equivalentdevices. In steel construction work where there is temporary flooring in askeleton steel building, a special type of perimeter guarding is required (29CFR 1926.750(b)(iii)).Thesespecialty safety standards promulgated to protect a class of constructionemployees, not otherwise protected, do not by inference, logic or context,defeat the application of other specific construction standards to protectconstruction workers not engaged in a specialty category of construction work.29CFR 1926.500(d)(1) applies to Respondent. Its employees, performing concreteconstruction work on the second floor of the building were not protected fromthe hazard of unguarded open-sided floors. (See also Secretary of Labor v.James L. Brussa, Masonry, OSAHRC Docket No. 725).Respondentfurther contends in Point III of its brief (pp. 8?9), that Complainant failedto establish that perimeter guards could be installed on the second floor, andif installed, that Respondent could perform its concrete pouring work.Itis not Complainant?s burden to establish that perimeter guards could not beinstalled, or that such guards would prevent Respondent?s work fromprogressing. This is a defense available to Respondent which it neither offerednor established at the hearing.Therecord reflects that Respondent?s employees left their worksite on the secondfloor some time after Officer Marra?s inspection on April 11, 1973. Theseemployees returned to their work on the morning of April 13, 1973, after theperimeter guard violation was corrected. The inference is clear. Not only wereperimeter guards installed but their installation did not prevent Respondentwith continuing its work on the second floor.Thequestion remains whether Respondent?s two employees on the plaza-first floorlevel were exposed to an unguarded open-sided floor hazard.OfficerMarra stated that he observed two of Respondent?s employees operating a powersaw on this level about ten feet from an unguarded open-sided floor.Respondentcontends that its two employees were no closer to the edge than ten feet, andthat there was no evidence which indicated their work would bring them closerto the edge. Therefore, Complainant failed to establish that these twoemployees were exposed to any hazard. (Brief pp. 7?8)Whenis an employee exposed to any given hazard is always a difficult question, andcannot be determined with any degree of precision. There are no devices orinstruments which will indicate that an employee ten or more feet from a hazardis exposed to that hazard. An employee working at the edge or within two tofive feet of an unguarded open-sided floor would no doubt be exposed to thathazard. But what is the outermost distance limits beyond which exposure nolonger exists? To this Judge, there is no rigid standard or formula by whichexposures to hazards can be determined. Each case must be decided on its ownfacts and circumstances.Some of thefactors to be considered in determining exposure are:1.The distance from the hazard to an employee?s work area;2.the work being performed by the employee;3.the number of employees working in the area;4.the housekeeping conditions, if any, in the work and hazard area; and5.the activities and movements required by an employee in the performance of hiswork.Inthe instant case, the only evidence presented is that two employees ofRespondent were operating a power saw an estimated distance of ten feet from anunguarded open-sided floor. There is no evidence that the work of theseemployees required them to move any appreciable distance from their power sawto the hazard, or that the pathway to their work or supplies would bring themcloser to the edge of the floor, or that the very nature of their work wouldexpose them to the hazard. The evidence was insufficient to establish that poorhousekeeping conditions would cause them to walk or move closer to the hazard.Underthe facts and circumstances of this case, this Judge cannot find that these twoemployees were exposed to the hazard of an unguarded open-sided floor on theplaza-first floor level.Respondentwas in violation of 29 CFR 1926.500(d)(1) in that it exposed its employees onthe second floor of the construction site to the hazard of unguarded open-sidedfloors.Complainantclassified this violation as nonserious and proposed a penalty of $210.00. Thegravity of the violation is high. An accident to an employee because of theviolation would probably result in a serious or fatal injury. Complainant?sdenial of credit for prior history and good faith on the ground that Respondenthad prior contested but unresolved similar violations, is rejected. To permitsuch consideration to enter into the determination of a penalty would, inessence, penalize a Respondent for seeking in good faith to challenge prior butunresolved, ?? to final order, charges of similar violations. Based on thegravity of the violation, Respondent?s size, prior history and good faith, apenalty of $200.00 is assessed.29CFR 1926.25(a)?HousekeepingTheevidence established that lumber (some with nails) and debris (unspecified) wasscattered and strewn in such quantity over the plaza-first floor level thatOfficer Marra in his inspection, had to proceed with caution to avoid trippingor stumbling. Officer Marra?s unrefuted testimony establishes that Respondent?semployees had to use the plaza area to reach the second floor of the building.Therewas no evidence that Respondent?s employees could reach the second floor bymeans other than crossing the plaza area.AlthoughRespondent?s employees left the job site on April 11, 1973, the poorhousekeeping conditions remained when they returned on April 13, 1973.29CFR 1926.25(a) requires that all form and scrap lumber with protruding nails,and all other debris be kept clear from work areas, passageways, and stairs inand around buildings or other structures. Respondent was in violation of thisstandard.Thehazard was the possibility of an employee tripping over the lumber and debrison his way to his work area. In view of the number of Respondent?s employees,about 50, using this plaza area to reach their second floor worksite, the lackof any precautions taken against this hazard, and an average probability of aninjury occurring, the gravity of the violation is deemed to be about average.Complainant proposes a penalty of $115.00 which includes a 50% credit forabatement. No credit was given for size. No credit was given for good faith andprior history on the grounds, stated previously, that there were outstandingbut contested and unresolved prior citations for similar violations. No creditis here given for size. Credit is given for good faith and prior history forthe reasons stated above in determining the penalty for the violation of 29 CFR1926.500(d)(1). The proposed penalty of $115.00 is reduced to $45.00 to reflectcredits for good faith and no prior history.FINDINGS OF FACTThecredible evidence, and the record as a whole established substantial proof ofthe following specific findings of fact.1.Respondent Underhill Construction Corporation, is a New York Corporation with aplace of business at 212?02 41st Avenue, Bayside, New York. (T. 8)2.Respondent Dic Concrete Corporation, is a New York Corporation with a place ofbusiness at 820 Elmont Road, Elmont, New York. (T. 8)3.Respondent trade as Dic-Underhill, a Joint Venture, and maintain a place ofbusiness at 212?02 41st Avenue, Bayside, New York. (T. 8)4.Respondents use trucks, cranes, nails and concrete manufactured outside theState of New York. (T. 8?9)5.Respondents employ in excess of one thousand employees on a daily average. (T.8)6.On May 9, 1973, Respondent was issued a Citation for four nonseriousviolations, and a Notification of Proposed Penalty for each of the violations.The violations allegedly existed at Respondent?s workplace, an apartmentconstruction site at 300 East 56th Street, New York, New York, on April 11,1973. (Citation and Notification)7.Respondent timely contested items 1 and 2 of the Citation which allegeviolations of 29 CFR 1926.500(d)(1), and 29 CFR 1926.25(a), and the penaltiesproposed for these violations. (T. 9)TheWorksite8.On April 11, 1973, Respondent?s worksite was an apartment building in its firststages of construction. (T. 18, 19)9.The building structure being erected was on concrete construction with afoundation, a plaza-first floor level, and a second floor at the stage ofhaving a concrete floor poured. (T. 8, 24?25; Exhs. C?1, C?2)Standard29 CFR 1926.500(d)(1)?Open-sided floor protection10.The open-sided floors on the plaza-first floor level and on the second floorlevel were completely unguarded. (T. 20, 21, 22; Exh. C?2)11.The drop from the open-sided floor on the plaza-first floor level to groundlevel was greater than six feet. The drop from the open-sided floor on thesecond floor level to ground level varied from ten to twelve feet on the 55thStreet side to twenty-two feet on the 56th Street side. (T. 21?22)12.Standard 29 CFR 1926.500(d)(1) requires all open-sided floors six or more feetabove an adjacent level to be guarded as prescribed by the standard.Respondent?semployees at the Worksite13.Respondent had two employees operating a power saw on the plaza-first floorlevel. These employees were about ten feet from an unguarded open-sided flooron the 56th Street side of the plaza-first floor level. (T. 30, 31, 35, 37, 90,91)14.Respondent had close to fifty employees working on the second floor levelpouring concrete. A number of these employees were working close to the edge ofthe unguarded open-sided floor on this level. (T. 19, 21?24, 27?30, 38, 39,40?45, 47; Exhs. C?1, C?2)15.On April 11, 1973, after the Compliance Officer?s inspection, Respondentremoved its employees from the worksite. These employees returned to work onthe morning of April 13, 1973, after the open-sided floors were properlyguarded. (T. 51, 102?103)16.The employees working on the second floor of the construction site on April 11,1973, were exposed to the hazard of falling from the unguarded open-sided flooron this level to ground level, a distance from ten to twenty-two feet. If suchan accident occurred, an employee probably would have suffered a serious orfatal injury.17.The two employees operating a power saw about ten feet from an unguardedopen-sided floor on the plaza-first floor level, on April 11, 1973, were not bydistance, nature of their work, or other factors exposed to this hazard. (See,Opinion)Standard29 CFR 1926.25(a)?Housekeeping conditions.18.The plaza-first floor level was strewn with lumber (some with nails) and otherdebris to an extent and in such quantity that it was necessary for anyone usingthis area to proceed cautiously to avoid tripping or stumbling. There were noclear passageways or aisle space on this level. (T. 48, 49, 50; Exh. C?1)19.The evidence, unrefuted, established that Respondent?s employees working on theplaza-first floor level, and the second floor level had to traverse the plazaarea to reach their worksites. (T. 51, 58)20.The hazard to these employees from the poor housekeeping conditions was thepossibility of tripping over lumber and debris, with probable injury in case ofa fall.21.Respondent presented no evidence on its own behalf at the hearing, and restedat the conclusion of the Complainant?s case. (T. 103?104)22.Based on the statutory factors set forth in Section 17(j) of the Act, a penaltyof $200.00, is assessed for the violation of 29 CFR 1926.500(d)(1), and apenalty of $45.00 for the violation of 29 CFR 1926.25(a). (See, Opinion)CONCLUSIONS OF LAM1.The Respondent Dic-Underhill, a Joint Venture, is, and at all times relevantherein, was engaged in a business affecting commerce within the meaning ofSection 3(5) of the Occupational Safety and Health Act of 1970.2. The Occupational Safety and Health Review Commission hasjurisdiction over the parties and subject matter of this action.3.Standard 29 CFR 1926.500(d)(1) of Subpart M of the Construction standardsapplied to Respondent and its employees at Respondent?s workplace on April 11,1973.4.Respondent, on April 11, 1973, was in violation of 29 CFR 1926.500(d)(1), onthe second floor level of the construction site.5.Based on the statutory factors set forth in Section 17(j) of the Act, a penaltyof $200.00 is assessed.6.Respondent, on April 11, and April 13, 1973, was in violation of 29 CFR1926.25(a) on the plaza level of the construction site.7.The proposed penalty of $115.00 for the violation of 29 CFR 1926.25(a) is notaccepted as reasonable. Based on the statutory factors of Section 17(j) of theAct, a $45.00 penalty is assessed.ORDERDuedeliberation having been had on the whole record, it is herebyORDEREDthat the Citation (item 1) issued on May 9, 1973, for a violation of 29 CFR1926.500(d)(1) is modified to reflect a violation of this standard only on thesecond floor level of the worksite, and as modified, is affirmed, it is furtherORDEREDthat a penalty of $200.00 is assessed for the violation of 29 CFR1926.500(d)(1), it is furtherORDEREDthat the Citation (item 2) issued May 9, 1973, for a violation of 29 CFR1926.25(a), is affirmed, it is furtherORDEREDthat the proposed penalty of $115.00 for the violation of 29 CFR 1926.25(a) isvacated, and a $45.00 penalty assessed.?JEROME C. DITOREJUDGE, OSAHRCDated: March 11,1974New York, NewYork[1] That standard reads:? 1926.500 Guardrails, handrails, and covers.(d) Guarding of open-sided floors, platforms, andrunways.(1) Every open-sided floor or platform 6 feet or moreabove adjacent floor or ground level shall be guarded by a standard railing, orthe equivalent, as specified in paragraph (f)(i) of this section, on all opensides, except where there is entrance to a ramp, stairway, or fixed ladder. Therailing shall be provided with a standard toe-board wherever, beneath the opensides, persons can pass, or there is moving machinery, or there is equipment withwhich falling materials could create a hazard.\u00a0[2] That standard reads:? 1926.25 Housekeeping.(a) During the course of construction, alteration, orrepairs, form and scrap lumber with protruding nails, and all other debris,shall be kept cleared from work areas, passageways, and stairs, in and aroundbuildings or other structures.[3] Eighteen months ago I proposed (by circulation of aproposed decision to both of the other members of the Commission) that thiscase should be disposed of by a simple affirmance of the Judge?s decisionwithout comment. Since the Judge affirmed the violation because of theconditions on the second floor, his holding as to the first floor isinsignificant. The complainant proposed a penalty of $210.00, the Judgeassessed a $200.00 penalty, and the Commission has affirmed the Judge?s penaltyassessment. The violation should have been affirmed long ago because therespondent could not be required to abate the conditions until the Commissionissues a final order. 29 U.S.C. ? 659(b). At this late date, the work on thebuilding in issue has undoubtedly been completed.[4] The Citation alleged four violations, itemized 1 to4. Respondent contested only item 1 and item 2 and the proposed penalties forthese items. The remaining two violations and the penalties proposed are nothere in issue. (T. 9)[5] Reference key: T. refers to pages of minutes ofhearing transcript.[6] Complainant at the opening of the hearing amendedthis description by deleting reference to 3rd floor from paragraph (a). (T.6?7)”