“Docket No. 89-0095 SECRETARY OF LABOR,CompIainant,v.DOVER ELEVATOR COMPANY,Respondent.OSHRC DOCKET NO.\u00a0\u00a0 89-0095ORDER This matter is before the Commission on a Direction for Reviewentered by Commissioner Donald G. Wiseman on July 9, 1990. The parties have now filed aStipulation and Settlement Agreement. Having reviewed the record, and based upon the representationsappearing in the Stipulation and Settlement Agreement, we conclude that this case raisesno matters warranting further review by the Commission. The terms of the Stipulation andSettlement Agreement do not appear to be contrary to the Occupational Safety and HealthAct and are in compliance with the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement intothis order. This is the final order of the Commission in this case. See 29 U.S.C. ??659(c), 660(a) and (b).Edwin G. Foulke, Jr.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ChairmanDonald G. Wiseman\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerDated: June 5, 1991LYNN MARTIN, SECRETARY OF LABOR,Complainant,v.DOVER ELEVATOR COMPANY,Respondent.OSHRC Docket No. 89-0095STIPULATION AND SETTLEMENT AGREEMENTIn full settlement and disposition of the issues in this proceeding, it is herebystipulated and agreed by and between the Complainant, Secretary of Labor, and theRespondent, Dover Elevator Company, that:1.\u00a0 This case is before the Commission upon respondent’s contest of Citation 1,Items 1, 2, 3 and 4 which alleged serious violations of 29 CFR 1926, 21(b) (2), 29 CFR1926.28(a), 29 CFR 1926.450(a) (10) and 29 CFR 1926.500(b) (1) along with a proposedpenalty of $2,700.\u00a0 Serious Citation 1, Item 1, was dismissed by the Commission’sAdministrative Law Judge but Items 2, 3, and 4 were affirmed with penalties of $630.00,$720.00 respectively. (Decision and Order, May 15, 1990.2.\u00a0 The Secretary hereby withdraws Serious Citation 1, Item 2 and Serious Citation1, Item 4 for violations of 29 CFR 1926,28(a) and 29 CFR 1926.500(b) (1) and the proposedrelated penalty.3.\u00a0 Respondent hereby withdraws its Notice of Contest to Serious Citation 1, Item3 for violation of 29 CFR 1926.\u00a0 450(a) (10) and to the notification of proposedpenalty and agrees that the violation has been abated.4.\u00a0 Respondent agrees to pay the sum of $720.00 in full settlement of SeriousCitation 1, Item 3.5.\u00a0 The parties have entered into this stipulated settlement solely to avoidprotracted and expensive litigation.\u00a0 This settlement is not to be construed as anadmission of fault or liability of any violation of the Occupational Safety and Health Actor regulations or standards promulgated thereunder of any other law, regulation orstandard.\u00a0 The parties have entered into this stipulated settlement with the intentand on the basis that is related solely to the disposition of this case and isdeterminative of issues in this case only.\u00a0 It shall not be binding in any subsequentactions, proceedings or events consistent with the terms of this agreement and it in noway affects any rights, defenses, or remedies which may be available in the future toRespondent or any other party.6.\u00a0 Respondent certifies that a copy of this Stipulation and Settlement Agreementwas posted at the workplace on the 15th day of May 1991, in accordance with Rules 7and 100 of the Commission’s Rules of Procedure.\u00a0 There are no authorizedrepresentatives of affected employees and no employee has elected party status.7.\u00a0 Complainant and Respondent will bear their own litigation costs and expenses.FOR THE SECRETARY:Antony F. Gil (Date)Attorney for theSecretary of\u00a0 LaborU.S. Department of LaborOffice of the SolicitorFOR RESPONDENT:W. Scott Railton (Date)Attorney for Respondent(Dover Elevator Co.)Reed, Smith Shawand McClaySECRETARY OF LABOR,Complainant,v.DOVER ELEVATOR COMPANY,Respondent.APPEARANCES:William G. Staton, Esquire, Office of the Solicitor, U.S. Department of Labor, NewYork, New York, on behalf of complainant.W. Scott Railton, Esquire, and Lawrence Brett, Esquire, Reed, Smith, Shaw and McClay,Washington, D.C., on behalf of respondent.DECISION AND ORDERSALYERS, Judge:\u00a0\u00a0\u00a0 On November 2, 1988, Compliance Officer George Boydof the Occupational Safety and Health Administration was conducting an inspection of awork site at Ann and Court Streets in Morristown, New Jersey.\u00a0 About 9:00 a.m., Boydentered the first floor of a five-story building undergoing renovation and observed aworker standing on a ladder which was resting on a work platform inside an open elevatorshaft.\u00a0 The distance from the platform to the bottom of the shaft was 40 feet (Tr.11).\u00a0 As Boyd approached the ladder, he noted openings in the floor of the platformand that the ladder was not secured at the top or cleated at the bottom.\u00a0 Heconcluded this circumstance placed the worker at risk and asked the worker to step downfrom the ladder, at which time Boyd identified himself and presented his credentials as anOSHA Inspector (Tr. 12-13).\u00a0 The observed worker was Ernest Woods, respondent’smechanic-in-charge (foreman), who was working at the time with respondent’s mechanic,Michael Riley, in the placement of a horizontal beam at the second floor level to supportanother work platform in the open shaft and to provide overhead protection from fallingobjects.After descending from the ladder, Woods was engaged by Boyd in a discussion concerningthe floor openings and the ladder when he observed and photographed Riley standing in thepartially opened doorway on the second floor of the elevator shaft without benefit of anyfall protection (Ex. C-1; Tr. 25-26).\u00a0 Boyd inquired of Woods and Riley whether theyhad received safety training from respondent and was advised they had not (Tr. 32).Following Boyd’s inspection, respondent was issued serious citation one consisting ofthe following items:129 CFR 1926.21(b) (2):\u00a0\u00a0\u00a0 The employer did not instruct each employee inthe recognition and avoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposure to illness orinjury;(a)\u00a0\u00a0\u00a0\u00a0 Construction site – Ann Street & Court Street,Morristown, NJ – Employee was not trained in the recognition and avoidance of unsafeconditions to eliminate any hazard and other exposure to injury, i.e., working at the edgeof elevator shaft without wearing a safety belt and working at the edge of floor openings.229 CFR 1926.28(a):[[1]] Appropriate personal protective equipment was not worn byemployee(s) in all operations where there was exposure to hazardous conditions:(2)\u00a0\u00a0\u00a0\u00a0 Second floor, north side of building – Elevator shaft -Employee – Employee was observed working at the edge of the second floor elevator shaftwho had been issued a safety belt but was not required to wear the safety belt.\u00a0 Employee was exposed to a fall of 12 feet 8 inches to a wooden deck with flooropenings.329 CFR 1926.450(a)(10): Portable ladders in use were not tied, blocked, or otherwisesecured to prevent their being displaced:(a)\u00a0\u00a0\u00a0 First Floor, north side – Elevator shaft-Employee was observedworking from a wooden 24 ft. extension ladder that was not tied off or had the feetblocked.Ladder was placed beside a 12 inch x 14 inch floor opening, exposing employee to a 40ft. fall to a concrete floor below.429 CFR 1926.500(b)(1): Floor opening(s) were not quarded by standard railings andtoeboards or covers as specified in paragraph (f) of this section:(a) First floor, north side – Elevator shaft-Employee was working from a 24 ft.extension ladder that was not tied off, with unguarded floor opening on either side ofladder.\u00a0 Openings were 13 inches x 19 inches and 12 inches x 14 inches, exposingemployee to a 40 foot fall to a concrete floor.Respondent contends that the manner in which Boyd conducted his inspection violatedrespondent’s Fourth Amendment rights and prejudiced respondent’s opportunity to gatherevidence to support its defense.\u00a0 This argument is premised on respondent’sassertions that Boyd \”was illegally on the premises\” and did not providerespondent an opportunity to participate in the Secretary’s inspection[[2]]\u00a0 (Resp.’sbrief p. 2).It is clear in the Act that the Secretary is invested with the right to make reasonableinspections of work sites.\u00a0 Section 8(a) of the Act (29 U.S.C. 651, et seq.)provides:Sec. 8.(a)\u00a0 In order to carry out the purposes of this Act, the Secretary, uponpresenting appropriate credentials to the owner, operator, or agent in charge, isauthorized–(1) to enter without delay and at reasonable times any factory, plant, establishment,construction site, or other area, workplace or environment where work is performed by anemployee of an employer; and(2) to inspect and investigate during regular working hours and at other reasonable times,and within reasonable limits an din a reasonable manner, any such place of employment andall pertinent conditions, structures, machines, apparatus, devices, equipment, andmaterials therein, and to question privately any such employer, owner, operator, agent oremployee.Under the terms of the statute, the only prerequisite to conducting an inspection at awork site is the presentation of \”appropriate credentials.\”\u00a0 In this case,there is no dispute that Boyd presented his credentials to respondent’smechanic-in-charge, Ernest Woods, immediately upon Woods’ descent from the ladder (Tr. 75,195-198).\u00a0 At the time, Boyd was wearing a hard hat with the OSHA decal displayedthereon which further identified him as an agency inspector (Tr. 74-75).\u00a0 It is alsoundisputed that woods was aware of Boyd’s intent to inspect and made no attempt toexercise Fourth Amendment rights by refusing go permit Boyd to make an inspection (Tr. 94,154-154).\u00a0 It further appears that respondent had no policy in this regard (Tr. 197).\u00a0 Under these circumstances, it is concluded that Boyd’s inspection was conductedwith respondent’s consent and did not, therefore, impinge upon respondent’s constitutionalrights.\u00a0 Kropp Forge Co., 657 F2 d 119 (7th Cir. 1981); Lake Butler ApparelCo., 519 F.2d 84 (5th Cir. 1975); Poughkeepsie Yacht Club, Inc., 79 OSAHRC77\/D4, 7 BNA OSHC 1725, 1979 CCH OSHD ? 23,888 (No. 76-4026, 1979).It is also evident that Compliance Officer Boyd did not circumvent the requirements ofsection 8(e) of the Act which provides: (e) Subject to regulations issued by theSecretary, a representative of the employer and a representative authorized by hisemployees shall be given an opportunity to accompany the Secretary or his authorizedrepresentative during the physical inspection of any workplace under subsection (a) forthe purpose of aiding such inspection.\u00a0\u00a0 Where there is no authorized employeerepresentative, the Secretary or his authorized representative shall consult with areasonable number of employees concerning matters of health and safety in the workplace.Respondent’s mechanic-in-charge, Ernest Woods, was in the presence of ComplianceOfficer Boyd throughout the inspection process.\u00a0 Woods was present when Boyd made thephotographs received in evidence as exhibits C-1 through C-5 and took measurements of theholes in the work platform using a steel tape (Tr. 139-140).\u00a0 He was also advised byBoyd of the circumstances at the work site which Boyd considered to be violations ofstandards.\u00a0 There is nothing in the record to reflect that Boyd restricted Woods’participation in the inspection nor is there any evidence to support respondent’s claimthat it was prejudiced in the preparation of its defense as a result of Boyd’s conduct ofthe Secretary’s inspection.\u00a0 Without such a showing, respondent’s argument falls ofits own weight.\u00a0 S & H Riggers & Erectors, Inc., 80 OSAHRC 27\/A2, 8BNA OSHC 1174, 1977-78 CCH OSHD ? 21,672 (Nos. 76-1104 & 76-1739, 1977): PullmanPower Products, 80 OSAHRC 77\/B11, 8 BNA OSHC 1930, 1980 CCH OSHD ? 24,4989, 1980).THE 29 C.F.R. ? 1926.21(b) (2) CHARGEThis standard provides:(2) The employer shall instruct each employee in the recognition and avoidance ofunsafe conditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness of injury.The Secretary bases this charge primarily on statements allegedly made by Woods andRiley to Compliance Officer Boyd to the effect that they had received no safety trainingfrom the respondent.\u00a0 Boyd’s testimony on this point is as follows (Tr. 32-33):A.\u00a0 We were on the first floor.\u00a0 We were now on the actual floor itself.\u00a0 We were out of the elevator shaft.\u00a0 Both Dover employees were standing withinfour feet of each other.I had first asked the foreman if he had received any training as far as fall protectionor the requirement of wearing safety belts and how to properly build a deck, and so forth.And, his response as far as the training goes was that he had not received any trainingfrom the Company, but h e had been in the business for quite some time and that he hadreceived his training through this experience that the had obtained through working in theindustry.I then turned my head and looked toward Mr. Riley and asked him if he had received anyking of safety training as as as wearing safety belts and so forth.\u00a0 Mr. Riley said,\”No,\” he had not.Apparently, Boyd made no further attempt to determine the extent to which respondenttrained employees in the recognition and avoidance of hazards on the work site.\u00a0 Inparticular, he did not inquire concerning the existence of a written safety program orwhether respondent conducted regular safety meetings with its employees.At the hearing, respondent offered into evidence its Safety Handbook (Ex. R-1) which isdistributed to each employee.\u00a0 Woods testified we carries this manual to each jobsitefor ready reference (Tr. 105).\u00a0 This booklet was prepared by the elevator industryand is based upon the experience of field personnel and the research of safetyspecialists.\u00a0 It deals in a comprehensive fashion with all major hazards which may beencountered on a work site and specifically included the requirement to use safety beltsand lanyards to protect against fall hazards above ten feet (Ex. R-1, p. 11 and 12); theneed to cover floor openings (ex. R-1, p. 28-29).\u00a0 The manual provides material foruse at respondent’s safety meetings which are conducted each Friday by themechanic-in-charge (Tr. 164).\u00a0 Both Woods and Riley testified they were familiar withthe contents of the safety manual and tried to follow the rules (tr. 104-105, 225-226).\u00a0 It also appears that both employees had received safety training prior to theSecretary’s inspection.\u00a0 Woods has been an elevator mechanic for 25 years and hasreceived \”on the job training\” and safety courses throughout his employment (Tr.104).\u00a0 He attended a training session provided by respondent \”a few monthsback\” (before the inspection) which included the proper use of safety belts and theneed to provide proper planking in open shafts to protect against falls and fallingobjects (Tr. 107-109).\u00a0 Riley received and passed training on elevator safety issuesduring a three-year period while enrolled in the National Elevator Industry EducationalProgram (Tr. 214).\u00a0 This entailed the completion of safety \”modules\” andthe taking of tests on safety matters as a prerequisite to being certified as a mechanic(Tr. 215).\u00a0 Riley received regular on-the-job training from respondent and attended aone-day safety session provided by respondent a few months before the Secretary’sinspection (Tr. 175-176, 180-181, 217).It further appears that respondent utilizes an inspection program of its work sites toinsure its work rules are followed.\u00a0 Regular inspections are conducted by supervisorypersonnel each week (Tr. 106-107, 166-168), and respondent uses a disciplinary system inthe event infractions of work rules are disclosed (Tr. 228-230).It is concluded that the Secretary has failed to establish by the weight of theevidence that respondent violated the provisions of 29 C.F.R. ? 1926.21(b) (2) and thisitem will be vacated.The 29 C.F.R. ? 1926.28(a) CHARGEThis standard provides:The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor this part indicates the need for using such equipment to reduce the hazards to theemployees.The Secretary’s charge with respect to this item is based upon the observation ofCompliance Officer Boyd together with a photograph (Ex. C-1) depicting respondent’semployee Riley standing in an opening on the second floor of the building at a height of12 feet, 2 inches, above the first floor platform (Tr. 26).\u00a0 It is undisputed thatRiley was not wearing a safety belt at the time.Just prior to Boyd’s appearance on the scene, Woods and Riley had been engaged in theplacement of a timber through a hole in the wall of the elevator shaft at the second floorlevel.\u00a0 Riley was working behind this wall in guiding the timber through the hole.\u00a0 He was within \”four to five feet\” from the shaft opening (Tr. 236) whileperforming this work.\u00a0 The evidence is in dispute concerning why Riley was directlyin the opening at the time Boyd took his picture.\u00a0 Boyd claims he was talking toWoods on the first floor platform when he \”looked upward and saw an employee standingin the west doorway of the elevator shaft on the second floor\”\u00a0 (Tr. 25-26).\u00a0 Both woods and Riley claim that Boyd asked Riley to come to the shaft opening sothat Boyd could take his picture (Tr. 134-136, 223) and thereby \”entrapped\”Riley into posing for a picture which the Secretary now uses as evidence to support aclaim of violation.The Secretary’s charge, however, is not predicated solely on the photographic evidence.\u00a0 The record discloses that Riley had been working in close proximity to the openshaft while placing the timber through the shaft wall.\u00a0 This activity exposed him toa potential fall hazard even before the compliance officer arrived upon the scene.\u00a0 Since the opening was not quarded by railings, Riley was exposed to this hazard andshould have been wearing a safety belt and lanyard as required by the company’s rules (Ex.R-1 p. 11) and the cited standard.The 29 C.F.R. 1926.450(a) (10) CHARGEIt is undisputed that Woods was working on a ladder which was not tied off at the topor cleated at the bottom.\u00a0 The ladder in question was new and had been delivered tothe work site without \”non-skid feet\” which are rubber treads normally attachedto the bottom of the ladder to prevent displacement while in use (Tr. 173).Woods testified that he placed the top of this 12-foot ladder against the shaft wallwith the bottom resting on the plywood platform about 4 feet back from the wall (Tr.121-122).\u00a0 The floor upon which the ladder was placed was \”plyscore\” whichis a construction grade unfinished plywood with a rough surface (Tr. 123).\u00a0 Beforeuse, Woods mounted the ladder to see if it was secure and found that it did not slide (Tr.121-122).\u00a0 He, therefore, considered it to be safe for use (Tr. 124).Respondent argues that the terms of the standard which require that portable laddersshall be tied and blocked also provide\u00a0 \”or otherwise secured to prevent theirbeing displaced.\”\u00a0 Respondent contends that the ‘ply score\” surface of theplatform effectively prevented the bottom of the ladder from sliding and, therefore,satisfied the \”otherwise secured\” provision of the standard.\u00a0 Woodstestified, however, that he had been specifically instructed by respondent’ssuperintendent that ladders \”would have to be cleated at the bottom\” (tr. 173)if they were not equipped with non-skid foot (Tr. 173).\u00a0 This procedure was notfollowed in this case.\u00a0 As a result, the ladder in question, which was neither tiedoff at the top or cleated at the bottom to prevent displacement, was no \”otherwisesecured.\”\u00a0 This circumstance constitutes a breach of the cited standard.THE 29 C.F.R. ? 1926.500(b) (1) CHARGEThe cited standard requires that floor openings be guarded by either standard railingsor a cover to protect employees from falls.\u00a0 The term \”floor opening\” isdefined at 1926.502(b) as \”an opening measuring 12 inches or more in its leastdimension in any floor, roof or platform through which persons may fall.\”The presence of openings in the platform covering the shaft at the first floor is notdisputed and the circumstances are depicted in exhibits C-2 through C-5.\u00a0 ComplianceOfficer Boyd measured these openings and determined that three of them were 19 by 13inches in dimension (Tr. 14).\u00a0 These openings were located in close proximity to theladder being used by Woods at the time of and prior to the inspection (Ex. C-2).\u00a0 Infact, the ladder was within two feet of the openings (Tr. 147).\u00a0 Boyd noted that theplanks surrounding the openings were not secured (Tr. 15) and he was able to move them byexerting pressure with his foot (Tr. 88-89).\u00a0 He concluded this condition would causethe planks to displace in the event of a fall and increase the potential for a 40-footplunge to the bottom of the shaft.Respondent argues in its posthearing brief that this citation should be vacated sincethe exposed employees were in the process of installing the required protection at thetime they were observed by the compliance officer.\u00a0 The evidence reflects that Woodsand Riley arrived at the site at 7:00 a.m. and began to install the deck over the shaft atthe first floor level.\u00a0 This was accomplished by placing four-by-six timbers throughholes in the shaft wall.\u00a0 Two-by-ten planks were laid crosswise over the timbers andplywood was then placed on top of the planks to complete the deck (Tr. 169-170).\u00a0 However, the deck in this case was not completely covered before Woods and Rileyembarked upon the task of placing overhead protection in the shaft at the second floorlevel at approximately 9:00 a.m.Respondent contends that its employees were confronted at the time of inspection withthe potential of being struck by objects, i.e., nuts, tools, etc., dropped orkicked into the shaft by employees of other subcontractors working at higher levels aroundthe shaft.\u00a0 Woods testified his usual procedure was to partially cover the deck,erect the overhead protection and then complete the partial deck by fully planking it over(Tr. 148).\u00a0 He was unable to satisfactorily explain why the deck could not be fullycovered before using it to install the overhead protection.\u00a0 In response to aquestion in this regard, he indicated that completing the deck would be\”time-consuming\”\u00a0 (Tr. 151).\u00a0 However, this explanation conflicts withthe fact that he was able to cover the holes \”almost immediately\” after thecompliance officer called this situation to his attention by simply covering the openingswith two sheets of plywood (Tr. 183-184).This court has considered Flour Engineering & Constructors, Inc., 77 OSAHRC109\/F7, 5 BNA OSHC 1803, 1976-77 CCH OSHD ? 20,972 (No. 76-77, 1976);\u00a0 CarsonsHeating & Ventilating Co., 74 OSAHRC 29\/F2, 2 BNA OSHC 3021, 1973-74 CCH OSHD ?17,680 (No. 2977, 1974), cited by respondent in support of its position that a citation isimproper if issued at at time when the exposed employees were engaged in the installationof the protection required by the cited standard.\u00a0 It is noted that these cases areunreviewed ALJ decisions and have not precedential value.\u00a0 Leone Construction Co.,76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD ? 20,387 (No. 4090, 1976).\u00a0 Inany event, the facts of the instant case support a conclusion that Woods’ failure to coverthe openings in the platform to protect against a potential 40-foot fall before using thisplatform to install overhead protection was a gross misapplication of priorities and aviolation of the cited standard.The foregoing constitute the findings of fact in accordance with Rule 52 of the FederalRules of Civil Procedure.CONCLUSIONS OF LAW1.\u00a0\u00a0\u00a0 Respondent is an employer engated in an industry affectingcommerce.\u00a0 The Review Commission has jurisdiction of the parties and subject matterin this cause.2.\u00a0\u00a0\u00a0 The conduct of the Secretary’s compliance officer in this case didnot contravene the provisions of sections 8(a) and 8(e) of the Acot and respondent was notprejudiced by the manner in which the inspection was conducted.3.\u00a0\u00a0\u00a0 Respondent did not violate 29 C.F.R. ? 1926.21(b)(2).4.\u00a0\u00a0\u00a0 Respondent violated 29 C.F.R. ? 1926.28(a) by its failure torequire its employee Michael Riley to wear at a safetybelt and lanyard while working in close proximity to a wall opening 12 feet, 2 inches,above a partially covered dock.5.\u00a0\u00a0\u00a0 Respondent violated 29 C.F.R. ? 1926.450(a)(1) by its failure totie, block or otherwise secure a ladder in use at the first floor level on a deck coveringthe elevator shaft.6.\u00a0\u00a0\u00a0 Respondent violated 29 C.F.R. ? 1926.500(b)(1) by its failure toguard floor openings in a deck covering an elevator shaft thereby exposing employees to a40-foot fall.7.\u00a0\u00a0\u00a0 The penalties proposed by the Secretary are appropriate under thecircumstances of this case.ORDERIt is ORDERED:1.\u00a0\u00a0\u00a0 Serious Citation 1, Item 1, is vacated.2.\u00a0\u00a0\u00a0 Serious Citation 1, Item 2, is affirmed with a civil penalty of$630.00 assessed.3.\u00a0\u00a0\u00a0 Serious Citation 1, Item 3, is affirmed with a civil penalty of$720.00 assessed.4.\u00a0\u00a0\u00a0 Serious Citation 1, Item 4, is affirmed with a civil penalty of$720.00 assessed.Dated this 4th day of June, 1990.________________________EDWIN G. SALYERSJudgeFOOTNOTES:[[1]] In Her complaint, the Secretary alleged, in the alternative, a violation of1926.105(a) (failure to provide safety nets).\u00a0 However, this alternative was notpursued by the Secretary during the hearing nor is it addressed in the Secretary’sposthearing brief.[[2]] It is noted that respondent did not raise this defense in its answer to theSecretary’s complaint (See Ex. J-13).\u00a0″