“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tDOCKET NO. 16256\t\t\t\t\t\t\t\t\t\tDUTCHESS MECHANICAL\t\t\t\t\t\t\t\t\t\tCORPORATION\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t*\t\t\t\t\t\t\t\t\t\tBefore: CLEARY, Chairman; and BARNAKO, Commissioner.\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\tA decision of Review Commission Judge Seymour Fier is before the Commission for\t\t\t\t\t\t\t\t\t\treview pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C.\t\t\t\t\t\t\t\t\t\t\u00a7 651 et seq. [\u2018the Act\u2019]. At issue is whether the Judge erred in concluding that respondent is not\t\t\t\t\t\t\t\t\t\tliable for two non-serious violations of section 5(a)(2) of the Act because it neither created nor\t\t\t\t\t\t\t\t\t\tcontrolled the hazardous conditions.\t\t\t\t\t\t\t\t\t\tRespondent, Dutchess Mechanical Corporation, was the plumbing, heating and air\t\t\t\t\t\t\t\t\t\tconditioning subcontractor for the construction of a two story building in Palisades, New York.\t\t\t\t\t\t\t\t\t\tFollowing a general inspection of the worksite by an authorized representative of the Department\t\t\t\t\t\t\t\t\t\tof Labor (compliance officer), respondent was issued a citation alleging, among other things,\t\t\t\t\t\t\t\t\t\tnoncompliance\t\t\t\t\t\twith\t\t\t\t\t\tthe\t\t\t\t\t\toccupational\t\t\t\t\t\tsafety\t\t\t\t\t\tstandards\t\t\t\t\t\tcodified\t\t\t\t\t\tat\t\t\t\t\t\t29\t\t\t\t\t\tC.F.R.\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t\u00a7 1926.500(e)(1)(iii) (nonserious item 2) and 29 C.F.R. \u00a7 1926.500(b)(1) (nonserious item 1).\t\t\t\t\t\t\t\t\t\tThe alleged violations involved unguarded and inadequately guarded stairwell openings and\t\t\t\t\t\t\t\t\t\tstairways.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t*Commissioner COTTINE took no part in the consideration or decision of this case for the\t\t\t\t\t\t\t\t\t\treasons set forth in his separate opinion.\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tThis charge was amended at the hearing, specifically without objection from respondent, to\t\t\t\t\t\t\t\t\t\tallege noncompliance with \u00a7 1926.500(e)(1)(iv).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe Judge\u2019s decision vacating the charges was issued on June 24, 1976. Complainant\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tfiled, a petition for discretionary review, taking exception to the Judge\u2019s vacation of these items.\t\t\t\t\t\t\t\t\t\tOn October 21, 1977, the Commission issued an order pursuant to subparagraph D2 of the\t\t\t\t\t\t\t\t\t\tCommission\u2019s Policy Statement of December 1, 1976, published at 41 Fed. Reg. 53015,\t\t\t\t\t\t\t\t\t\tDecember 3, 1976, affording respondent the opportunity to file a brief in response to the issues\t\t\t\t\t\t\t\t\t\traised in complainant\u2019s petition. No brief was received. This matter will therefore be decided\t\t\t\t\t\t\t\t\t\twithout the benefit of additional argument.\t\t\t\t\t\t\t\t\t\tAt the hearing in this case, respondent stipulated to the existence of the hazardous\t\t\t\t\t\t\t\t\t\tconditions, indicating that only its liability for the conditions was being challenged. It is\t\t\t\t\t\t\t\t\t\tundisputed that respondent\u2019s employees used the cited stairways and were observed working 8\t\t\t\t\t\t\t\t\t\tfeet from one stairwell opening and 4 to 6 feet from the other.\t\t\t\t\t\t\t\t\t\tOn August 6, 1975, respondent sent a letter to the general contractor requesting that four\t\t\t\t\t\t\t\t\t\t\u2018apparent OSHA violations\u2019 be corrected. The letter was sent to confirm a telephone\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tconversation of the same date in which these violations were discussed. Respondent\u2019s letter\t\t\t\t\t\t\t\t\t\taddressed the following conditions:\t\t\t\t\t\t\t\t\t\t1. Stairwell: no guardrails\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. No planks on the stairtreads\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. No barrier protection in and around shafts\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4. Incomplete perimeter protection\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tThe citation originally charged five separate nonserious violations, including the two vacated\t\t\t\t\t\t\t\t\t\titems before us on review. One of the items was withdrawn by complainant and two were\t\t\t\t\t\t\t\t\t\taffirmed by the Judge. Inasmuch as neither party has taken issue with the Judge\u2019s disposition of\t\t\t\t\t\t\t\t\t\tthese items, the Commission will not review his actions.\t\t\t\t\t\tSee Water Works Installation Corp., 76\t\t\t\t\t\t\t\t\t\tOSAHRC 61\/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976).\t\t\t\t\t\t\t\t\t\tThat portion of the Judge\u2019s decision pertaining to these allegations is accorded the significance\t\t\t\t\t\t\t\t\t\tof an unreviewed Judge\u2019s decision.\t\t\t\t\t\tLeone Constr. Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979,\t\t\t\t\t\t\t\t\t\t1975-76 CCH OSHD para. 20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2nd Cir.,\t\t\t\t\t\t\t\t\t\tMay 17, 1976).\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tIn the letter respondent pointed out that both the general contractor and respondent are\t\t\t\t\t\t\t\t\t\tresponsible under the Act for any penalties resulting from OSHA violations.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tIn response to these communications, on August 27, 1975, respondent received a letter from the\t\t\t\t\t\t\t\t\t\tgeneral contractor indicating that conditions 2, 3 and 4 had been corrected, and that \u2018[g]uard rails\t\t\t\t\t\t\t\t\t\tare being installed around stairwells.\u2019 Also, prior to the inspection in this case respondent\u2019s\t\t\t\t\t\t\t\t\t\temployees were instructed not to work in the area of the violative conditions. Respondent\u2019s\t\t\t\t\t\t\t\t\t\tforeman testified that he was instructed by the general manager to remove the employees from\t\t\t\t\t\t\t\t\t\tthe site if rails were not installed. The inspection which resulted in the charges before us\t\t\t\t\t\t\t\t\t\toccurred approximately two days after these instructions were given to the foreman.\t\t\t\t\t\t\t\t\t\tJudge Fier vacated both items, relying on the Commission decision in\t\t\t\t\t\tAnning-Johnson\t\t\t\t\t\t\t\t\t\tCo., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 &\t\t\t\t\t\t\t\t\t\t4409, 1976). In\t\t\t\t\t\tAnning-Johnson,\t\t\t\t\t\tsupra, and in\t\t\t\t\t\tGrossman Steel and Aluminum Corporation, 76\t\t\t\t\t\t\t\t\t\tOSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976),\t\t\t\t\t\t\t\t\t\tthe Commission held that a subcontractor on a multi-employer worksite who neither created nor\t\t\t\t\t\t\t\t\t\tcontrolled the hazardous conditions to which its employees were exposed, and who knew or\t\t\t\t\t\t\t\t\t\treasonably should have known of the conditions, must take reasonable measures to protect its\t\t\t\t\t\t\t\t\t\temployees as an alternative to literal compliance. Suggested measures included attempting to\t\t\t\t\t\t\t\t\t\thave the general contractor or the responsible employer correct the conditions, instructing\t\t\t\t\t\t\t\t\t\temployees to avoid the hazard, or providing an alternative means of protection. An employer is\t\t\t\t\t\t\t\t\t\tobligated to do what is realistic under the circumstances to protect its employees.\t\t\t\t\t\tMayfair\t\t\t\t\t\t\t\t\t\tConstruction Co., 77 OSAHRC 178\/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD para.\t\t\t\t\t\t\t\t\t\t22,214 (No. 2171, 1977);\t\t\t\t\t\tAnning-Johnson Co.,\t\t\t\t\t\tsupra, at n. 16.\t\t\t\t\t\t\t\t\t\tIn his petition for discretionary review complainant argues that respondent did not take\t\t\t\t\t\t\t\t\t\treasonable steps to have the conditions abated or to protect its employees. Complainant points\t\t\t\t\t\t\t\t\t\tout that (1) respondent\u2019s letter only referred to one stairwell, whereas there are two unprotected\t\t\t\t\t\t\t\t\t\tstairwells and two unprotected stairways in issue; (2) in the three months that elapsed between\t\t\t\t\t\t\t\t\t\tthe letter and the inspection respondent did not follow up on its initial request to the general\t\t\t\t\t\t\t\t\t\tcontractor; and (3) respondent\u2019s instructions to its employees were inadequate, inasmuch as there\t\t\t\t\t\t\t\t\t\twas no evidence of enforcement and respondent\u2019s employees were actually exposed to the cited\t\t\t\t\t\t\t\t\t\tconditions.\t\t\t\t\t\t\t\t\t\tWe are not persuaded. Respondent\u2019s attempts to have the general contractor remedy\t\t\t\t\t\t\t\t\t\thazardous conditions on the worksite through both oral and written communications indicate a\t\t\t\t\t\t\t\t\t\tconcern for employee safety and health that is consonant with the goals of the Act. It was\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\treasonable for respondent to rely on the general contractor\u2019s assurance that rails were being\t\t\t\t\t\t\t\t\t\tinstalled since three of the four violations pointed out by respondent were immediately corrected.\t\t\t\t\t\t\t\t\t\tWe do not read respondent\u2019s letter in as restrictive a manner as does complainant. We interpret\t\t\t\t\t\t\t\t\t\tthe reference to \u2018stairwell: no guardrails\u2019 as encompassing both cited conditions before us.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s instructions to its employees to avoid the unguarded areas further demonstrate a\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tgenuine concern for its employees\u2019 safety.\t\t\t\t\t\t\t\t\t\tWe are satisfied that respondent has taken reasonable steps to protect its employees and\t\t\t\t\t\t\t\t\t\tthat the Judge properly vacated the items before us.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is ORDERED that the decision of the Administrative Law Judge is affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRay H. Darling, Jr.\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDated: JUN 27, 1978\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tWe also note that shortly before the inspection respondent\u2019s general manager went so far as to\t\t\t\t\t\t\t\t\t\tinform his foreman that the employees would have to be removed from the site if rails were not\t\t\t\t\t\t\t\t\t\tinstalled. In Anning-Johnson Co., supra, at n. 7, we stated that as a general rule we will not\t\t\t\t\t\t\t\t\t\trequire an employer to remove its employees from the site if the condition is not corrected.\t\t\t\t\t\t\t\t\t\tSimilarly, where, as here, the work being performed by employees necessarily exposes them to\t\t\t\t\t\t\t\t\t\tthe cited hazards, we cannot conclude that such exposure indicates that ineffectiveness of\t\t\t\t\t\t\t\t\t\tinstructions to avoid the hazards where possible. To hold otherwise would be tantamount to\t\t\t\t\t\t\t\t\t\trequiring that these employees be removed from the site.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCommissioner COTTINE, filing a separate opinion:\t\t\t\t\t\t\t\t\t\tAs a new member of the Commission, I must resolve the issue of my participation in\t\t\t\t\t\t\t\t\t\tpending cases. It is also necessary for me to set out the principles guiding my decision on this\t\t\t\t\t\t\t\t\t\timportant issue.\t\t\t\t\t\t\t\t\t\tIn this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision\t\t\t\t\t\t\t\t\t\ton the merits before I received by commission on May 1, 1978. A decision was already in\t\t\t\t\t\t\t\t\t\tpreparation when I assumed office. I have concluded that the wisest exercise of discretion is to\t\t\t\t\t\t\t\t\t\tdecline to participate in this case even though a new Commission member has authority to\t\t\t\t\t\t\t\t\t\tparticipate in pending cases. It should be emphasized that by declining to participate I express no\t\t\t\t\t\t\t\t\t\topinion on the procedural or substantive issues in this case or on the appropriateness of the\t\t\t\t\t\t\t\t\t\taccompanying order.\t\t\t\t\t\t\t\t\t\tDiscretion of Commission Members\t\t\t\t\t\t\t\t\t\tAs a matter of law, it is not necessary for all Commission members to participate for an\t\t\t\t\t\t\t\t\t\tagency to take official action. In\t\t\t\t\t\tDrath v. FTC, 239 F.2d 452 (D.C. Cir. 1956),\t\t\t\t\t\tcert. denied, 353\t\t\t\t\t\t\t\t\t\tU.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three\t\t\t\t\t\t\t\t\t\tof its five members participating. The Court of Appeals rejected petitioner\u2019s contention that the\t\t\t\t\t\t\t\t\t\tFTC can act in its adjudicatory capacity only when all members participate, except when there is\t\t\t\t\t\t\t\t\t\ta vacancy. The court ruled that official action can be taken by the majority of the requisite\t\t\t\t\t\t\t\t\t\tquorum. Also\t\t\t\t\t\tFrischer & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930), cited approvingly\t\t\t\t\t\t\t\t\t\tin\t\t\t\t\t\tFTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the\t\t\t\t\t\t\t\t\t\tOccupational Safety and Health Act, 29 U.S.C. \u00a7 661(e), provides:\t\t\t\t\t\t\t\t\t\tFor the purposes of carrying out its functions under this chapter, two members of\t\t\t\t\t\t\t\t\t\tthe Commission shall constitute a quorum and official action can be taken only on\t\t\t\t\t\t\t\t\t\tthe affirmative vote of at least two members.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThus, the unanimous decision already reached in this case satisfies the quorum and official\t\t\t\t\t\t\t\t\t\taction requirements of the Act and my participation is not necessary for the Commission to carry\t\t\t\t\t\t\t\t\t\tout its adjudicatory functions in this particular case.\t\t\t\t\t\t\t\t\t\tHowever, it is also settled that a new member of an administrative agency may\t\t\t\t\t\t\t\t\t\tparticipate in pending cases. For example, a new member of the Civil Aeronautics Board who\t\t\t\t\t\t\t\t\t\thad not participated in previous proceedings was entitled to vote and break an existing tie where\t\t\t\t\t\t\t\t\t\the had familiarized himself with the record.\t\t\t\t\t\tWestern Air Lines v. CAB, 351 F.2d 778 (D.C. Cir.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t1965), citing\t\t\t\t\t\tUnited Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). In United the court\t\t\t\t\t\t\t\t\t\tindicated that, where a member voting with the majority without hearing oral argument \u2018had the\t\t\t\t\t\t\t\t\t\trecord before him and the benefit of briefs\u2019, there was no abuse of discretion in his participation.\t\t\t\t\t\t\t\t\t\t281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of\t\t\t\t\t\t\t\t\t\tlaw is set forth in\t\t\t\t\t\tGearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):\t\t\t\t\t\t\t\t\t\tThe decisions of numerous courts and administrative agencies establish that, even\t\t\t\t\t\t\t\t\t\twithout agreement of the parties, a member of an administrative agency who did\t\t\t\t\t\t\t\t\t\tnot hear oral argument may nevertheless participate in the decision where he has\t\t\t\t\t\t\t\t\t\tthe benefit of the record before him. [footnotes omitted]\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\t348 F.2d at 802.\t\t\t\t\t\tSee Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036,\t\t\t\t\t\t\t\t\t\t1042 (D.C. Cir. 1977);\t\t\t\t\t\tArthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976).\t\t\t\t\t\t\t\t\t\tThus, a new member possesses the necessary authority to participate in all cases pending before\t\t\t\t\t\t\t\t\t\tthe Commission on assuming office.\t\t\t\t\t\t\t\t\t\tThough a new member may participate in all pending cases, particularly those involving\t\t\t\t\t\t\t\t\t\tan impasse, the decision remains a matter of discretion since adjudicatory decisions may be\t\t\t\t\t\t\t\t\t\tupheld on a majority of a quorum. In\t\t\t\t\t\tFTC v. Flotill Prod., 389 U.S. 179 (1967),\t\t\t\t\t\trev\u2019g\t\t\t\t\t\t358 F.2d\t\t\t\t\t\t\t\t\t\t224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to\t\t\t\t\t\t\t\t\t\tparticipate because he had not heard the oral argument. Thus, three of the possible four\t\t\t\t\t\t\t\t\t\tCommissioners actually participated in the decision. As a result, the FTC issued a cease-and-\t\t\t\t\t\t\t\t\t\tdesist order based on the affirmative vote of only two members. Despite its obvious impact on\t\t\t\t\t\t\t\t\t\tthe number of members constituting a majority, the Court did not review the exercise of\t\t\t\t\t\t\t\t\t\tdiscretion by the new member. Instead, the Court accepted the abstention at face value and\t\t\t\t\t\t\t\t\t\tupheld the action of the two members of the FTC.\t\t\t\t\t\tSee also LaPeyre v. FTC, 366 F.2d 117 (5th\t\t\t\t\t\t\t\t\t\tCir. 1966);\t\t\t\t\t\tAtlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition,\t\t\t\t\t\t\t\t\t\tadministrative decisions involving two or more abstentions have been upheld by reviewing\t\t\t\t\t\t\t\t\t\tcourts without question or comment on the grounds for these abstentions. All that was necessary\t\t\t\t\t\t\t\t\t\tto sustain the agency decision was a majority of the required quorum. E.g.,\t\t\t\t\t\tGreater Boston\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tA Commissioner may vote simply to avoid an impasse.\t\t\t\t\t\tPublic Service Commission of State of\t\t\t\t\t\t\t\t\t\tN.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974).\t\t\t\t\t\tSee generally Screws v. United States, 325\t\t\t\t\t\t\t\t\t\tU.S. 91, 134 (1945) (Rutledge, J., concurring in result).\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tThe Court distinguished\t\t\t\t\t\tWIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom.\t\t\t\t\t\t\t\t\t\tCrosley Broadcasting Corp. v. WIBC, Inc.,\t\t\t\t\t\t358 U.S. 920 (1958), because oral argument was\t\t\t\t\t\t\t\t\t\tstatutorily required if a party requested it. 348 F.2d 798, 802 n. 14.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tTelevision Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970),\t\t\t\t\t\tcert. denied, 403 U.S. 923\t\t\t\t\t\t\t\t\t\t(1971).\t\t\t\t\t\t\t\t\t\tDecision Not to Participate\t\t\t\t\t\t\t\t\t\tI decline to participate in this case because a majority of the Commission has reached\t\t\t\t\t\t\t\t\t\tagreement on the merits and my vote would have no effect on the outcome. Moreover, in cases\t\t\t\t\t\t\t\t\t\twhere Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my\t\t\t\t\t\t\t\t\t\tparticipation would delay the issuance of decisions and conflict with the goal of a prompt and\t\t\t\t\t\t\t\t\t\tefficient decision-making process.\t\t\t\t\t\tSee generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S.\t\t\t\t\t\t\t\t\t\t442, 97 S.Ct. 1261, 1272 (1977);\t\t\t\t\t\tKeystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d\t\t\t\t\t\t\t\t\t\tCir. 1976);\t\t\t\t\t\tNader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. \u00a7 555(b).\t\t\t\t\t\t\t\t\t\tSince abatement is stayed until the Commission enters a final order, 29 U.S.C. \u00a7 659(b),\t\t\t\t\t\t\t\t\t\tadditional deliberations would delay the control of hazardous working conditions in any case\t\t\t\t\t\t\t\t\t\twhere the Commission has determined that a violation of the Act exists. That result would be\t\t\t\t\t\t\t\t\t\tinconsistent with the statutory purpose to assure so far as possible safe and healthful working\t\t\t\t\t\t\t\t\t\tconditions for every working man and woman. 29 U.S.C. \u00a7 651(b).\t\t\t\t\t\t\t\t\t\tI will, however, participate fully in all cases in which previous Commission deliberations\t\t\t\t\t\t\t\t\t\thave resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without\t\t\t\t\t\t\t\t\t\tprecedential value, e.g.,\t\t\t\t\t\tLife Sciences Products Co., 77 OSAHRC 200\/A2 (microfiche), 6 BNA\t\t\t\t\t\t\t\t\t\tOSHC 1053, 1977-78 CCH OSHD \u00b622, 313 (No 14910, Nov. 11, 1977),\t\t\t\t\t\tappeal filed, No. 77-\t\t\t\t\t\t\t\t\t\t1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission\u2019s\t\t\t\t\t\t\t\t\t\tadministrative law judges. Moreover, these decisions also promote needless litigation in the U.S.\t\t\t\t\t\t\t\t\t\tCourts of Appeals to decide issues which should initially be determined by the Commission\t\t\t\t\t\t\t\t\t\tbecause its members have specialized training, education, and experience in occupational safety\t\t\t\t\t\t\t\t\t\tand health. 29 U.S.C. \u00a7 661(a).\t\t\t\t\t\tSee generally Atlas Roofing Co. v. OSHRC,\t\t\t\t\t\tsupra\t\t\t\t\t\tat 1264, 1272;\t\t\t\t\t\t\t\t\t\tKeystone Roofing Co., Inc. v. OSHRC,\t\t\t\t\t\tsupra\t\t\t\t\t\tat 963-964. Administrative resolution of pending\t\t\t\t\t\t\t\t\t\tissues also promotes a more uniform application and development of occupational safety and\t\t\t\t\t\t\t\t\t\thealth law. After reading the record, I will participate in the consideration and decision of these\t\t\t\t\t\t\t\t\t\tcases.\t\t\t\t\t\t\t\t\t\tConclusion\t\t\t\t\t\t\t\t\t\tMy decision not to participate in pending cases which have reached a unanimous decision\t\t\t\t\t\t\t\t\t\tby my colleagues, but to participate in those cases with unresolved issues, promotes the prompt\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tadjudication of cases. The full benefit of Commission review is also assured the parties and the\t\t\t\t\t\t\t\t\t\tpublic. Both of these results are essential to protecting the lives, health and safety of American\t\t\t\t\t\t\t\t\t\tworkers and the operation of American business while providing for the effective adjudication of\t\t\t\t\t\t\t\t\t\tcases by the administrative law judges.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tDOCKET NO. 16256\t\t\t\t\t\t\t\t\t\tDUTCHESS MECHANICAL\t\t\t\t\t\t\t\t\t\tCORPORATION\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tJune 24, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tFrancis V. LaRuffa, Regional Solicitor United States Department of Labor\t\t\t\t\t\t\t\t\t\t1515 Broadway, Room 3555\t\t\t\t\t\t\t\t\t\tNew York, New York 10036\t\t\t\t\t\t\t\t\t\tAttorney for complainant by Rudolph E. DeMeo, Esq.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tJerome L. Wohlstein, General Manager Dutchess Mechanical Corp.\t\t\t\t\t\t\t\t\t\t100 Front Street\t\t\t\t\t\t\t\t\t\tPatterson, New York 12563\t\t\t\t\t\t\t\t\t\tFor respondent\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFier, Judge:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPRELIMINARY STATEMENT\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970 (29 U.S.C. \u00a7 651 et seq., hereinafter called the Act), wherein respondent, contests the\t\t\t\t\t\t\t\t\t\tcitation and penalties for five nonserious violations. The citation dated December 2, 1975 was\t\t\t\t\t\t\t\t\t\tbased on an inspection conducted November 19, 1975. The citation and proposed penalties were\t\t\t\t\t\t\t\t\t\tissued pursuant to sections 9(a) and 10(a) of the Act.\t\t\t\t\t\t\t\t\t\tPursuant to section 10(e) of the Act (29 U.S.C. \u00a7 659(c)) respondent, through a letter\t\t\t\t\t\t\t\t\t\tdated December 12, 1975, noted its timely contest of the violations and proposed penalties.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe citation for the alleged nonserious violations set forth the following:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCitation No.\t\t\t\t\t\tItem No. Standard\t\t\t\t\t\tDescription\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t29 CFR 1926.500(b)(1)\t\t\t\t\t\tEmployees were working and walking in the vicinity of\t\t\t\t\t\t\t\t\t\tunguarded floor openings in the following areas:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. stairwell #1, second floor\t\t\t\t\t\t\t\t\t\tB. Stairwell #3, second floor\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFloor openings shall be guarded by a standard railing\t\t\t\t\t\t\t\t\t\tor a cover secured in place.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA penalty of $175.00 was proposed.\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t29 CFR\t\t\t\t\t\tEmployees were using the following stairs that had\t\t\t\t\t\t\t\t\t\tunguarded open sides:\t\t\t\t\t\t\t\t\t\t1926.500(e)(1)(iii)\t\t\t\t\t\t\t\t\t\tA. stairway #2, basement to second floor\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tB. Stairway #3, first floor to second floor\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tStairs shall have open sides guarded by a stair railing.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA penalty of $95.00 was proposed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t29 CFR 1926.28(a)\t\t\t\t\t\tEmployees were working in close proximity to beams\t\t\t\t\t\t\t\t\t\tfireproofed with mineral fiber substance and were not\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\twearing dust masks or respirators. Personal protective\t\t\t\t\t\t\t\t\t\tequipment shall be provided and worn where there is\t\t\t\t\t\t\t\t\t\tan exposure to hazardous conditions.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA penalty of $30.00 was proposed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t29 CFR 1926.350(a)(1)\t\t\t\t\t\tCompressed gas cylinders without valve caps in place\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\twere observed in basement and on first floor. Valve\t\t\t\t\t\t\t\t\t\tprotective caps shall be kept in place when cylinders\t\t\t\t\t\t\t\t\t\tare not in use.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNo penalty was proposed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t29 CFR 1926.350(a)(9)\t\t\t\t\t\tCompressed gas cylinders that were not secured against\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tupsetting were observed in basement and on first floor.\t\t\t\t\t\t\t\t\t\tCompressed gas cylinders shall be secured to a\t\t\t\t\t\t\t\t\t\tstationary object in an upright position.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNo penalty was proposed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tSecretary amended the complaint by changing citation No. 1, item 2, from 29 CFR\t\t\t\t\t\t\t\t\t\t1926.500(e)(1)(iii) to 29 CFR 1926.500(e)(1) iv. (See transcript pages 13 and 14).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tStandards as promulgated:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR \u00a7 1926.500 Guardrails, handrails, and covers.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(b) Guarding of floor openings and floor holes. (1) Floor openings shall be\t\t\t\t\t\t\t\t\t\tguarded by a standard railing and toeboards or cover, as specified in paragraph (f)\t\t\t\t\t\t\t\t\t\tof this section. In general, the railing shall be provided on all exposed sides,\t\t\t\t\t\t\t\t\t\texcept at entrances to stairways.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR \u00a7 1926.500\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(e) Stairway railings and guards. (1) Every flight of stairs having four or more\t\t\t\t\t\t\t\t\t\trisers shall be equipped with standard stair railings or standard handrails as\t\t\t\t\t\t\t\t\t\tspecified below, the width of the stair to be measured clear of all obstructions\t\t\t\t\t\t\t\t\t\texcept handrails:\t\t\t\t\t\t\t\t\t\t(iii) On stairways less than 44 inches wide having both sides open, one stair\t\t\t\t\t\t\t\t\t\trailing on each side.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(iv) On stairways more than 44 inches wide but less than 88 inches wide, one\t\t\t\t\t\t\t\t\t\thandrail on each enclosed side and one stair railing on each open side.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR \u00a7 1926.28 Personal protective equipment.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(a) The employer is responsible for requiring the wearing of appropriate personal\t\t\t\t\t\t\t\t\t\tprotective equipment in all operations where there is an exposure to hazardous\t\t\t\t\t\t\t\t\t\tconditions or where this part indicates the need for using such equipment to\t\t\t\t\t\t\t\t\t\treduce the hazards to the employees.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR \u00a7 1926.350 Gas welding and cutting.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(a) Transporting, moving and storing compressed gas cylinders. (1) Valve\t\t\t\t\t\t\t\t\t\tprotection caps shall be in place and secured.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR \u00a7 1926.350(a)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(9) Compressed gas cylinders shall be secured in an upright position at all times\t\t\t\t\t\t\t\t\t\texcept, if necessary, for short periods of time while cylinders are actually being\t\t\t\t\t\t\t\t\t\thoisted or carried.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSTIPULATIONS\t\t\t\t\t\t\t\t\t\tThe Secretary withdrew citation one, item three or the basis that the evidence is\t\t\t\t\t\t\t\t\t\tinsufficient to prove the violation.\t\t\t\t\t\t\t\t\t\tISSUES\t\t\t\t\t\t\t\t\t\t1. Whether the respondent violated the Occupational Safety and Health Act as alleged.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t2. Whether the respondent failed to comply with sections 29 CFR 1926.500(b)(1); 29\t\t\t\t\t\t\t\t\t\tCFR 1926.500(e)(1)(iv); 29 CFR 1926.350(a)(1); 29 CFR 1926.350(a)(9); if so, did they violate\t\t\t\t\t\t\t\t\t\tsection 29 U.S.C. 654(a) of the Act.\t\t\t\t\t\t\t\t\t\tSTATEMENT OF THE EVIDENCE\t\t\t\t\t\t\t\t\t\tThe respondent through its answer and by stipulation, admits that it is a corporation doing\t\t\t\t\t\t\t\t\t\tbusiness in the State of New York. Dutchess Mechanical Corporation (hereafter referred to as\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tDutchess)\t\t\t\t\t\tpurchases\t\t\t\t\t\tmaterial\t\t\t\t\t\tfrom\t\t\t\t\t\toutside\t\t\t\t\t\tthe\t\t\t\t\t\tState\t\t\t\t\t\tof\t\t\t\t\t\tNew\t\t\t\t\t\tYork\t\t\t\t\t\t(T.\t\t\t\t\t\t5).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\tDenotes transcript page.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tOn November 19, 1975, James Whitney, a compliance officer (hereafter referred to as\t\t\t\t\t\t\t\t\t\tC.O.) for the Department of Labor, made an inspection of a construction site in Palisades, New\t\t\t\t\t\t\t\t\t\tYork. At the site, the C.O. was met by the superintendent of the General Contractor and the\t\t\t\t\t\t\t\t\t\tmason contractor. The C.O. was told that the various trades were confined to specific areas,\t\t\t\t\t\t\t\t\t\tfloors (f)or rooms (T. 10). The C.O. was subsequently met by Mr. Wright a shop steward of the\t\t\t\t\t\t\t\t\t\trespondent, who introduced him to the respondent\u2019s foreman, Mr. Macur (T. 11). Mr. Macur\t\t\t\t\t\t\t\t\t\tstated he was foreman only of the sheet metal workers and that the respondent\u2019s plumbing\t\t\t\t\t\t\t\t\t\tforeman was on the floor below (T. 11). The C.O. noticed that when Mr. Wright first approached\t\t\t\t\t\t\t\t\t\thim, he was walking alongside of the number 3 stairwell opening. There was a single strand of\t\t\t\t\t\t\t\t\t\trope loosely supported by two by fours around the perimeter of the stairwell serving as a\t\t\t\t\t\t\t\t\t\tguardrail (T. 12). The respondent\u2019s sheet metal workers had free access to the area (T. 13). The\t\t\t\t\t\t\t\t\t\tC.O. testified that neither stairway number one or number three had toeboards or covers over the\t\t\t\t\t\t\t\t\t\topenings (T. 13).\t\t\t\t\t\t\t\t\t\tOn the second floor, the C.O. observed that stairwell number one was completely\t\t\t\t\t\t\t\t\t\tunguarded and stairwell number three was guarded only by the rope as previously described (T.\t\t\t\t\t\t\t\t\t\t15). Mr. Wright was observed using stairway number three. The stairs were open on both sides.\t\t\t\t\t\t\t\t\t\tOne side had no railings at all, and the other side had a loosely suspended rope (T. 16). The\t\t\t\t\t\t\t\t\t\thazards of a fall in both instances were outlined and the possibility of injury described (T. 17).\t\t\t\t\t\t\t\t\t\tSince item three was withdrawn at the hearing by the Secretary, this issue is now moot\t\t\t\t\t\t\t\t\t\tand will not be discussed (T. 5, 6).\t\t\t\t\t\t\t\t\t\tThe C.O. indicated that when he was in the work area of the first floor lavatory he asked\t\t\t\t\t\t\t\t\t\tfor the plumbing foreman (T. 23). Whereupon Mr. Nani introduced himself by name (T. 23).\t\t\t\t\t\t\t\t\t\tWhile descending stairway number two, the C.O. observed three compressed gas cylinders\t\t\t\t\t\t\t\t\t\twithout valve covers. In addition, one of the cylinders was not secured in the upright position (T.\t\t\t\t\t\t\t\t\t\t24). When the C.O. mentioned this to Mr. Nani, he immediately directed one of the plumbing\t\t\t\t\t\t\t\t\t\temployees to correct it (T. 24, 26). The C.O. observed Mr. Wright and two other employees\t\t\t\t\t\t\t\t\t\tusing stairwell No. 2 on two occasions at lunch time. The stairwell had a railing on the inside but\t\t\t\t\t\t\t\t\t\tthe outside was open and the block partition was not completed at the time (T. 27). Based on the\t\t\t\t\t\t\t\t\t\tforegoing, the C.O. submitted his written reports and recommendations for the issuance of the\t\t\t\t\t\t\t\t\t\tabove violations and proposed penalties (T. 29\u201332).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe respondent stated that he did not take issue with the facts or with the violations (T.\t\t\t\t\t\t\t\t\t\t17). Dutchess contends that the primary issue in this case is that of focusing responsibility on the\t\t\t\t\t\t\t\t\t\tproper party.\t\t\t\t\t\t\t\t\t\tOPINION\t\t\t\t\t\t\t\t\t\tThe Secretary has cited Dutchess for five nonserious violations, one of which was\t\t\t\t\t\t\t\t\t\twithdrawn by the Secretary (T.5, 6).\t\t\t\t\t\t\t\t\t\tThe respondent raises several issues of a procedural nature. It concedes that the violations\t\t\t\t\t\t\t\t\t\tdid occur and therefore the facts are not in issue (T. 17). Dutchess in its defense relies on the\t\t\t\t\t\t\t\t\t\tSeventh Circuit Court decision of\t\t\t\t\t\tAnning-Johnson Co. v. O.S.H.R.C. and Brennan, (516 F.2d\t\t\t\t\t\t\t\t\t\t1081 7th Circuit, 1975) Docket No. 3439; 7 OSAHRC 271; BNA 1 OSHC 3331; CCH \u00b617,296.\t\t\t\t\t\t\t\t\t\tIn this case the Court was confronted with the issue of:\t\t\t\t\t\t\t\t\t\t\u2018Whether subcontractors working at a multiemployer construction site can receive\t\t\t\t\t\t\t\t\t\tcitations and be held liable for penalties under the Occupational Safety and Health\t\t\t\t\t\t\t\t\t\tAct of 1970, 29 U.S.C. \u00a7 651 et seq. [OSHA], for non-serious violations of\t\t\t\t\t\t\t\t\t\tstandards promulgated by the Secretary of Labor to which their employees were\t\t\t\t\t\t\t\t\t\texposed, but which the subcontractors neither created nor were responsible for\t\t\t\t\t\t\t\t\t\tpursuant to their contractual duties.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe court resolved the question by holding that:\t\t\t\t\t\t\t\t\t\t\u2018subcontractors working at a multi-employer construction site could not receive\t\t\t\t\t\t\t\t\t\tcitations and could not be held liable for penalties under the Occupational Safety\t\t\t\t\t\t\t\t\t\tand Health Act of 1970 for nonserious violations of promulgated standards to\t\t\t\t\t\t\t\t\t\twhich their employees were exposed but which the subcontractors neither created\t\t\t\t\t\t\t\t\t\tnor were responsible for pursuant to their contractual duties.\u2019\t\t\t\t\t\t\t\t\t\tId\t\t\t\t\t\tat p.1081\t\t\t\t\t\t\t\t\t\tIn another case decided about the same time but in this Circuit;\t\t\t\t\t\tBrennan v. O.S.H.R.C.\t\t\t\t\t\t\t\t\t\tand Underhill Construction Corp., 513 F.2d 1032 (Second Circuit, 1975), the Court held:\t\t\t\t\t\t\t\t\t\t\u2018In a situation where an employer is in control of an area and responsible for its\t\t\t\t\t\t\t\t\t\tmaintenance, to prove a violation of the Occupational Safety and Health Act the\t\t\t\t\t\t\t\t\t\tSecretary of Labor need only show that a hazard has been committed and that the\t\t\t\t\t\t\t\t\t\tarea of the hazard was accessible to employees of the cited employer or those of\t\t\t\t\t\t\t\t\t\tother employers engaged in a common undertaking, despite contention that the\t\t\t\t\t\t\t\t\t\tAct can be violated only when a cited employer\u2019s own employees are shown to be\t\t\t\t\t\t\t\t\t\tdirectly exposed to a violation of a standard. Occupational Safety and Health Act\t\t\t\t\t\t\t\t\t\tof 1970, \u00a7\u00a7 2(b), (b)(1), 3(6), 5(a)(1,2), 8(f)(1); 13, 17(b, c, j), 29 U.S.C.A. \u00a7\u00a7\t\t\t\t\t\t\t\t\t\t651(b), (b)(1), 652(6), 654(a)(1, 2), 657(f)(1), 662, 66(b, c, j).\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSince the issuance of the above decisions, the Review Commission has set forth guide\t\t\t\t\t\t\t\t\t\tlines to be followed in cases involving subcontractors on a multi-employer work site. The\t\t\t\t\t\t\t\t\t\tCommission was also careful to point out that in setting forth the guidelines, the factual situation\t\t\t\t\t\t\t\t\t\tof each case must be considered regarding its applicability.\t\t\t\t\t\tSee Secretary v. Anning-Johnson\t\t\t\t\t\t\t\t\t\tCompany, Docket No. 3694 and 4409 \u2014\u2014 OSAHRC \u2014\u2014 (May 12, 1976).\t\t\t\t\t\t\t\t\t\tIn the instant case, the evidence shows that the standards cited above were violated.\t\t\t\t\t\t\t\t\t\tProcedural defenses were raised by the respondent concerning the failure to cite the particular\t\t\t\t\t\t\t\t\t\temployees for the violations instead of the employer. It is alleged that the employee knowingly\t\t\t\t\t\t\t\t\t\tviolated the standard by failing to follow company policy on safety. The respondent relies on:\t\t\t\t\t\t\t\t\t\t29 U.S.C. 654(b):\t\t\t\t\t\t\t\t\t\tEach employee shall comply with occupational safety and health standards and all\t\t\t\t\t\t\t\t\t\trules, regulations, and orders issued pursuant to this Act which are applicable to\t\t\t\t\t\t\t\t\t\this own actions and conduct.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWhile the evidence shows that in the instance of use of the open stairwell, by the\t\t\t\t\t\t\t\t\t\trespondent\u2019s employees during the lunch hour, was not incurred while actually working for the\t\t\t\t\t\t\t\t\t\trespondent at the time, nevertheless as long as the employee is on the worksite during the\t\t\t\t\t\t\t\t\t\tbusiness hours of the day there can be no question that the Act is applicable during that time. If\t\t\t\t\t\t\t\t\t\tthe evidence showed that an employee deliberately violated the Act, then the respondent could\t\t\t\t\t\t\t\t\t\tnot be held responsible in the absence of showing some responsibility for such violation on its\t\t\t\t\t\t\t\t\t\tpart. To permit the citation of an employer for a nonserious violation of the Occupational Safety\t\t\t\t\t\t\t\t\t\tand Health Act which results from deliberate employee misconduct, would subject an employer\t\t\t\t\t\t\t\t\t\tto a standard of strict liability under the special duty clause which was not the intent of Congress.\t\t\t\t\t\t\t\t\t\tBrennan v. Occupational Safety and Health Review Commission, 511 F.2d 1139, Ninth Court of\t\t\t\t\t\t\t\t\t\tAppeals (1975). In another case where the issue arose, the Third Circuit Court of Appeals said:\t\t\t\t\t\t\t\t\t\t\u2018With considerable misgivings, we conclude that Congress did not intend to\t\t\t\t\t\t\t\t\t\tconfer on the Secretary or the Commission the power to sanction employees.\t\t\t\t\t\t\t\t\t\tSections 2(b)(2) and 5(b) cannot be read apart from the detailed scheme of\t\t\t\t\t\t\t\t\t\tenforcement set out in Secs. 9, 10 and 17 of the Act. It seems clear that this\t\t\t\t\t\t\t\t\t\tenforcement scheme is directed only against employers. Sections 9(a) and 10(a)\t\t\t\t\t\t\t\t\t\tprovide for the issuance of citations and notifications of proposed penalties only\t\t\t\t\t\t\t\t\t\tto employers.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tAtlantic and Gulf Stevedores, Inc., et al v. O.S.A.H.R.C.\t\t\t\t\t\t\u2014\u2014 F.2d \u2014\u2014 No. 75\u20131584 (3rd C.A.)\t\t\t\t\t\t\t\t\t\tMarch 26, 1976.\t\t\t\t\t\t\t\t\t\tAs to the respondent\u2019s allegation concerning the walkaround inspection in the company\t\t\t\t\t\t\t\t\t\tof its representative (T. 36\u201337); the C.O. explained that since the work of the subcontractors\t\t\t\t\t\t\t\t\t\twere in specific areas it would have been cumbersome to have all of them on an inspection of\t\t\t\t\t\t\t\t\t\tareas where their trade was not involved (T\u201344). The consequence of this policy would require\t\t\t\t\t\t\t\t\t\tthat no citation should be issued to a respondent where he was willfully precluded from\t\t\t\t\t\t\t\t\t\tparticipating in the walk-around of the area where the violation arose. In the instant case, the\t\t\t\t\t\t\t\t\t\trespondent\u2019s representative was present when the violations applicable to it, were noted. See also\t\t\t\t\t\t\t\t\t\tChicago Bridge and Iron Company v. O.S.A.H.R.C. and Dunlop; \u2014\u2014 F.2d \u2014\u2014; No. 75\u20131163,\t\t\t\t\t\t\t\t\t\t(7th C.A.) May 10, 1976.\t\t\t\t\t\t\t\t\t\tThe respondent also raised a defense attempting to demonstrate that it should not be held\t\t\t\t\t\t\t\t\t\tresponsible for those nonserious violations which it neither created or was capable of correcting.\t\t\t\t\t\t\t\t\t\tA review of the recent decision of the Review Commission in:\t\t\t\t\t\tSecretary v. Anning-Johnson\t\t\t\t\t\t\t\t\t\tCompany, Docket No. 3694 and 4409 decided May 12, 1976 \u2014\u2014 OSAHRC \u2014\u2014: shows that\t\t\t\t\t\t\t\t\t\tspecific guidelines have been established for allocating responsibility in nonserious violations. In\t\t\t\t\t\t\t\t\t\tthe instant case, the respondent seeks to show that it attempted to correct the violations of item 1\t\t\t\t\t\t\t\t\t\tand 2 of the citation by calling the matters to the attention of the General Contractor (Exh. J\u20131).\t\t\t\t\t\t\t\t\t\tThis was further pursued by instructing the employees not to work in the areas of the two\t\t\t\t\t\t\t\t\t\tviolations (T. 62, 65, 66). The weight of evidence is such that one can only conclude that the\t\t\t\t\t\t\t\t\t\trespondent did not violate the standards, 29 CFR 1926.500(b)(1), or 29 CFR 1926.500(e)(1)IV.\t\t\t\t\t\t\t\t\t\tAccordingly, they must be vacated.\t\t\t\t\t\t\t\t\t\tAs for the remaining two violations, 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9),\t\t\t\t\t\t\t\t\t\tthe complainant has carried its burden of proof in showing that the respondent violated the two\t\t\t\t\t\t\t\t\t\tstandards. The evidence unlike the previous violations reveals that the violations were in the\t\t\t\t\t\t\t\t\t\tsphere of control of the respondent. Accordingly, they must be affirmed. The hazard was small in\t\t\t\t\t\t\t\t\t\tboth instances, therefore no penalty was proposed.\t\t\t\t\t\t\t\t\t\tAll motions and objections not previously disposed of are herewith denied.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\tThe credible evidence and the record as a whole establishes proof of the following facts:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1. Respondent, Dutchess Mechanical Corporation, is in the construction business. Many\t\t\t\t\t\t\t\t\t\tof the materials used by respondent cross state lines.\t\t\t\t\t\t\t\t\t\t2. The record shows that the violation set forth in the citation as item 3 was withdrawn by\t\t\t\t\t\t\t\t\t\tthe Secretary.\t\t\t\t\t\t\t\t\t\t3. The evidence shows that the respondent was not in the sphere of cause and or control\t\t\t\t\t\t\t\t\t\tof the violations set forth in the citation as items one and two concerning the stairwell, stairs and\t\t\t\t\t\t\t\t\t\tfloor openings.\t\t\t\t\t\t\t\t\t\t4. The evidence shows that the respondent was responsible for the compressed gas\t\t\t\t\t\t\t\t\t\tcylinders and it immediately corrected the violations.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS\t\t\t\t\t\t\t\t\t\t1. The respondent is and was at all times herein engaged in a business affecting\t\t\t\t\t\t\t\t\t\tcommerce within the meaning of section 3(5) of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970.\t\t\t\t\t\t\t\t\t\t2. The Occupational Safety and Health Review Commission has jurisdiction over the\t\t\t\t\t\t\t\t\t\tsubject matter and parties to this action.\t\t\t\t\t\t\t\t\t\t3. Respondent did not violate 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR\t\t\t\t\t\t\t\t\t\t1926.500(b)(1) and 29 CFR 1926.500(e)(1)IV.\t\t\t\t\t\t\t\t\t\t4. Respondent violated 29 U.S.C. 654(a)(2) by failing to comply with standards 29 CFR\t\t\t\t\t\t\t\t\t\t1926.350(a)(1) and 29 CFR 1926.350(a)(9).\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tUpon the basis of the foregoing findings of fact and conclusions of law, and upon the\t\t\t\t\t\t\t\t\t\tentire record, it is hereby\t\t\t\t\t\t\t\t\t\tORDERED that;\t\t\t\t\t\t\t\t\t\tCitation number one, items one, two and three are vacated. Items four and five are\t\t\t\t\t\t\t\t\t\taffirmed. No penalties are assessed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSEYMOUR FIER\t\t\t\t\t\t\t\t\t\tJUDGE, OSHRC\t\t\t\t\t\t\t\t\t\tDated: June 24, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNew York, New York\t\t\t”