“SECRETARY OF LABOR,Complainant.v.ED TAYLOR CONSTRUCTION CO.,Respondent.OSHRC Docket No. 88-2463\/*DECISION *\/Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:This case has been before the Commission previously following a remandby the United States Court of Appeals for the Eleventh Circuit.[[1]] Inits decision, the Eleventh Circuit affirmed two of the three citationitems at issue before it, but remanded the case for further proceedingswith respect to the third. That item (citation no. 1, item 2) alleges aserious violation of 29 C.F.R. ? 1926.20(b)(1) in that the Respondent,Ed Taylor Construction Company (\”Taylor\”), \”did not enforce and maintaina safety program which provided for frequent and regular inspections ofjobsites, materials and equipment [with such inspections to be] made bya competent person . . \” For the reasons stated herein, we conclude thatCommission Administrative Law Judge (\”ALJ\”) Paul L. Brady did not err infinding and concluding that Taylor failed to comply with the terms ofthe cited standard. We therefore uphold his decision to affirm thecontested citation item. However, we modify his assessed penalty of $200and assess a more appropriate penalty of $500 for this serious violation.\/*Factual Background*\/The citation at issue resulted from OSHA’s investigation of multiplefatalities at the Central Park office complex construction project inAtlanta, Georgia. This project involved the erection of a 20-storyoffice building and a multi-level parking garage. Taylor is a generalcontractor that normally limits its operations to the erecting ofcommercial structures, such as multi-story buildings. On this project,however, another general contractor had been given the contract forconstructing the office building and parking garage. Taylor’s separatecontract with the owner was a \”hardscape\” contract. Thus, it wasresponsible for the concrete landscaping work on the project, includingmost notably the construction of a large artificial lake or pond at the.bottom of the hill on which the of office complex was being built.Because Taylor had no prior experience under a \”hardscape\” contract, itdid almost all of its work on this project through subcontractors,keeping only a skeletal staff of approximately three of its ownemployees at the site. One of Taylor’s subcontracts was with J & RExcavation, Inc., which had responsibility for constructing a \”specialpurpose access shaft\” or \”manhole.\” The sole purpose of this shaft wasto provide access to a valve at the bottom of the shaft. This valve wasconnected to a pipe that linked the artificial, concrete-lined lake to astorm drainage system. When the valve was opened, it allowed the lake tobe drained so that the lake could be cleaned or repaired. Closing thevalve made it possible to fill the lake.The access shaft that J & R built was 24 feet deep and 4 feet indiameter. It had a single opening at the top that was 24 inches indiameter, but a manhole cover was placed over that opening, therebycreating a complete enclosure. Inside, the shaft was gravel-based,concrete-lined, and empty, except for the valve at the bottom and an\”access ladder\”‘ (apparently rungs attached to the concrete wall)leading down to the valve. Because the shaft was not connected to asewer or otherwise expected to contain liquids, the witnesses at thehearing consistently characterized it as a \”dry shaft\” as opposed to a\”sanitary manhole. [[2]]On this record, it appears likely that Taylor employees only entered themanhole on two occasions. The manhole was constructed by J & R inJanuary 1988. Since Taylor was responsible for overseeing this work,project manager Giannini was probably correct in speculating (in awritten witness statement given to OSHA) that project superintendentGarren had entered the manhole in January to assure himself that it wasbeing (or had been) constructed in accordance with the contractualspecifications.[[3]] Thereafter, it seems likely that the manholeremained closed from the time it was completed in January until Garrenand two other Taylor employees entered it on August 19, 1988 There is noevidence in this record to suggest otherwise.In the interim between these two entries, the work of Taylor and itssubcontractors under the \”hardscape\” contract was basically completed inMarch or April, when the contractors finished backfilling around themanhole. Taylor therefore removed its regular work crew from the projectsite. However, at that time, it was not possible for Taylor or anyoneelse to fill the lake, because the county had imposed significant wateruse restrictions in response to a drought. These restrictions werelifted in August 1988.Upon being notified of this fact, Taylor put together a special workcrew, consisting of three of its own supervisory employees and twotemporary \”day laborers,\” which returned to the Central Park worksite inearly or mid-August to finish the remaining work on the project.Specifically, the crew was instructed to examine, clean, and repair \”arather huge black liner\” that covered the bottom of the lake. It wasthen expected to take the steps necessary to fill the lake with water,including descending to the bottom of the manhole shaft to close thedrain valve and turning on a pump to activate the flow of the water.While there is no eyewitness account in this record of the eventsleading up to the worksite fatalities, it seems clear from the evidencethat was introduced that the accident occurred when assistant projectsuperintendent Geeslin was sent into the manhole to close the valve, sothat the lake could be filled. Geeslin’s autopsy report stronglysuggests that, while he was descending into the manhole, he lostconsciousness due to a lack of oxygen; fell from the access ladder; and,as a result, suffered a broken neck. According to their autopsy reports,the other two deceased employees, project superintendent Garren andlabor foreman Bohler, were then similarly overcome when they attemptedto rescue Geeslin.Subsequently, the medical examiner determined that all three of theseemployees had died as a result of their exposure to an oxygen-deficientatmosphere (\/i.e.\/, \”asphyxiation\” caused by a \”vitiated\” atmosphere).For the first two employees into the shaft, the examiner also listed asecond cause of death–\”immersion in water.\” Thus, the autopsy reportsdemonstrate that, at the time of the fatalities, there was anundetermined amount of mud and water at the bottom of the shaft. Wemight assume that these conditions played some role in the developmentof the oxygen-deficient atmosphere inside the manhole. However, thiswould only be speculation on our part. Neither party made any effort toestablish how the water and mud got into this \”dry shaft\” or how theoxygen-deficient atmosphere was created.\/*The Law of the Case*\/As a result of its investigation of this accident, OSHA issued, andTaylor later contested, a citation alleging three serious violations ofthe Act, each based on the circumstances surrounding the accident. OSHAfurther proposed penalties of $1000 for each of these allegedviolations. As indicated at the outset of this decision, two of thesecitation items are no longer before us because they have been affirmedby the United States Court of Appeals for the Eleventh Circuit.\/EdTaylor Constr. Co. v. OSHRC,\/ 938 F.2d 1265, 1272 (11th Cir. 1991). Thatdecision also resolved several of the factual and legal issues that hadpreviously been in dispute between the parties, and the court’sresolution of those issues is now binding on us as \”the law of thecase.\” \/See, e.g., American\/ \/Cyanamid Co.\/, 9 BNA OSHC 2052,1981 CCHOSHD ? 25,504 (No. 77-3752,1981); \/Stewart-Warner Corp\/. (\/I.B.E.W.,Local 1031\/), 8 BNA OSHC 1316,1980 CCH OSHD ? 24,472 (No. 78-5910-E,1980) (lead and concurring opinions).Citation no. 1, item 3, alleged a violation of 29 C.F.R. ?1926.21(b)(6)(i) in that employees at the Central Park worksite wererequired to enter into a \”confined space,\” as defined in ?1926.21(b)(6)(ii), even though they had not been instructed as to thehazards involved in confined space entry, the necessary precautions tobe taken, and the use of personal protective and emergency rescueequipment.[[4]] As noted by the Eleventh Circuit, Taylor did not contestthe allegation that it had failed to provide such instructions. 938 F.2dat 1268. That factual issue is therefore settled in these proceedings.In addition, the court’s affirmance of this item constitutes a bindinglegal conclusion that the manhole in question was a \”confined space\” asdefined by the Secretary, \/see supra\/ note 4, \/i.e.\/, it was a \”spacehaving a limited means of egress, which [was] subject to theaccumulation of toxic or flammable contaminants or [which had] an oxygendeficient atmosphere.\”More specifically, in affirming this citation item, the court reasonedas follows: (a) the manhole at issue was a \”confined space\” because itwas an \”open top space more than 4 feet in depth\” and such spaces areexpressly included within the standard’s coverage; (b) because themanhole fell within this category, the standard itself establishes thatit was subject to the accumulation of toxic contaminants or the creationof an oxygen-deficient atmosphere; and, implicitly, (c) independentproof of this fact by the Secretary was therefore not necessary. 938F.2d at 1272. Based on this reasoning, the court rejected Taylor’sprincipal defense to this citation item, \/i.e.\/, its claim that \”themanhole was not a ‘confined space’ because experienced contractors inthe Atlanta area did not recognize such a manhole as a space subject tothe accumulation of toxic contaminants or having an oxygen-deficientatmosphere.\” \/Id\/. In essence, the court held that, because of theexpress terms of the standard, it was \”irrelevant\” whether employers inTaylor’s industry would have recognized that this particular manhole wasone that was subject to the creation of a toxic, flammable, oroxygen-deficient atmosphere.In affirming the second of the three citation items before it, the courtemployed similar reasoning. Citation no. 1, item 1, alleged a violationof section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), in that Taylorfailed to adopt and implement a \”confined space entry procedure\” beforeits employees entered the manhole on August 19, 1988.[[5]] Specifically,the Secretary charged that Taylor did not test the atmosphere (for aircontaminants and oxygen deficiency) before permitting its employees toenter the manhole, did not have emergency rescue equipment available,and did not provide mechanical ventilation. Again, the Eleventh Circuitcorrectly noted that Taylor did not challenge the Secretary’s factualclaims, and these factual matters are therefore settled. 938 F.2d at1268. In addition, the court’s affirmance of this citation itemconstitutes a binding legal conclusion that the confined space entryhazard created by the employees’ entry into the shaft was a \”recognizedhazard\” within the meaning of section 5(a)(1).In defending against this charge, Taylor had sought to prove that thehazard at issue was not \”recognized\” by its industry. It defined itsindustry as those employers that are engaged in commercial constructionbut not utility work. It then elicited considerable testimony at thehearing to the effect that non-utility construction employers do not\”recognize\” the hazard created by \”dry shaft\” manholes. \/See id\/. Thecourt, however, held in essence that it could give no weight to thistestimony because of the Secretary’s adoption of the confined spaceentry hazard standard cited in item 3 and discussed above. \/See supra\/note 4. In the court’s view, this standard gave the entire constructionindustry constructive notice \”that any manhole, ‘sanitary’ or ‘dry,’that is twenty-four feet in depth and four feet in diameter is apotential hazard.\” \/Id\/. at 1272. Therefore, it reasoned, whetheremployers in Taylor’s industry actually recognized the hazard is\”irrelevant\” since the constructive knowledge provided by the standardrendered the hazard \”recognized\” as a matter of law. \/Id\/.The third contested citation item at issue before the court was thealleged violation of 29 C.F.R. ? 1926.20(b)(1) that is now before us onreview. The cited standard and its companion, which is incorporated byreference, provide as follows: ?*1926.20 General safety and health provisions.* (b) \/Accident prevention responsibilities\/. (1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part. (2) Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.The key term \”competent persons\” is defined, at 29 C.F.R. ? 1926.32(f),as follows: (f) \/Competent person\/ means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them. At the hearing, the OSHA compliance officer explained the basis of this allegation (citation no. 1, item 2), as follows: The employer didn’t have frequent and regular inspections which would have pointed out to them during the course of their inspections that they were going to have to enter a 24 vertical foot manhole that had been closed up, according to Mr. Giannini, since January. . . and held the possibility of having an oxygen deficient atmosphere or other problems. . . . . [A \”competent person\” within the meaning of the cited standard] who looked at [the] 24 vertical foot manhole with a 2 foot wide opening at the top that has been closed 8 months, as I was told it was closed, from January to mid-August, would have reason to believe that there definitely could be oxygen deficiency …. [That person would have tested the atmosphere]. They would have [thereby] determined that there was an oxygen deficiency and I assume that they would have taken some corrective measures. . . . . [W]ith regard to the manhole, they knew at least the day before that they would be entering, the day of the accident would be the last day on the job site. The frequent and regular inspection should have at least pointed out at that time that they were going to enter into the 24 foot manhole and that precautions would need to be taken.In fact, as the witness suggested, it is undisputed on this record thatTaylor knew, prior to August 19, 1988, that it would have to send anemployee into the manhole to close the valve so that the lake could befilled. Both company president O’Neill and project manager Gianniniacknowledged at the hearing that they were personally aware of thisnecessity prior to the fatal accident.In his decision in this case, Commission Judge Brady affirmed all threeof the citation items that have been described above. In its decision,the Eleventh Circuit formulated Judge Brady’s holding with respect tothis remaining citation item–citation no. 1, item 2–as follows: \”TheALJ found that while Taylor provided for regular inspections of theCentral Park site, the persons conducting the inspections were not’competent’.\” As discussed more fully in our Order on Remand of October18, 1991, the court set aside Judge Brady’s finding and remanded thecase to us for further proceedings with respect to item 2.Strictly speaking, the court’s mandate to us was limited to arequirement that we give \”consideration\” to Taylor’s previously-filedpetition for discretionary review (PDR) as it related to item 2. This wedid prior to issuing our Order on Remand, as we noted in the orderitself. Nevertheless, in our review of this case, we have also givenconsiderable weight to the guidance provided by the court in itsdiscussion of the merits of this citation item.As the following passage indicates, the Eleventh Circuit clearly viewedthe central unresolved issue with respect to item 2 to be a factual (orevidentiary) issue rather than a legal issue: At the hearing, OSHA presented uncontested testimony that none of the inspections identified the manhole in question as a potential hazard. That, however, was the only evidence that inspectors were incompetent. There was some evidence that the inspectors were well trained and fully competent. While the Secretary certainly presented sufficient evidence to permit the Review Commission to find that the inspectors were not \”competent\” within the meaning of the regulations, we could not so find as a matter of law ….938 F.2d at 1271. Consistent with the court’s view, we have fullyexamined the entire record, including the evidence identified by thecourt, to determine whether Judge Brady’s key finding–that theinspectors who conducted Taylor’s worksite inspections were not \”competent\”–is supported by the preponderance of the evidence. \/See id\/.at 1270 (distinguishing between Commission and appellate court review offactual findings). For the reasons stated herein, we conclude that therecord does support the judge’s finding, and we therefore reinstate thatfinding.[[6]]\/The Competence of Taylor’s Inspectors\/In resolving this issue, our starting point must be the Secretary’sdefinition of \”competent person,\” which we have quoted above. Inpertinent part, ? 1926.32(f) provides that a \”competent\” person is one\”who is capable of identifying existing and predictable hazards in thesurroundings or working conditions.\” Here, there can be no doubt thatthere was an \”existing … hazard\” at Taylor’s workplace within themeaning of this definition. The Eleventh Circuit’s decision establishes,as the law of the case, that Taylor’s three employees were exposed to aconfined space entry hazard when they entered the special purpose accessshaft at the Central Park office complex project, initially for thepurpose of closing the valve at the bottom of the shaft.The question therefore becomes whether that hazard was \”predictable.\”Again, the Eleventh Circuit’s decision clearly points to the properresolution of this issue. As indicated, the court expressly held thatthe hazard in question was a \”recognized hazard\” within the meaning ofsection 5(a)(1) of the Act. It also concluded that the \/entire\/construction industry, and not just utility contractors, had been givenconstructive notice of this hazard by the Secretary’s adoption of 29C.F.R. ? 1926.21(b)(6), the standard that requires constructioncontractors to train their employees in the recognition and avoidance ofsuch confined space entry hazards. \/See supra\/ note 4. However, thecourt stopped short of finding that the hazard was predictable.We must determine whether the hazard was predictable based on theevidentiary record. As indicated previously, both the company presidentand the project manager conceded at the hearing that they werepersonally aware, prior to August 19, 1988, that it would eventually benecessary to send a work crew back to the construction site to fill thelake and that, as part of this process, a Taylor employee would have toenter the manhole to shut the valve. In addition, project managerGiannini at least was aware that the manhole had not been opened sincecompletion of the concrete structure in January. Given this evidence,and combining it with the constructive notice provided by the OSHAstandards, we have no difficulty in finding and concluding that thehazard created by the employees’ entry into the 24-foot-deep manhole was\”predictable.\” As the compliance officer stated, in her unrebuttedopinion testimony, a \”competent person\” within the meaning of the citedstandard \”who looked at [the] 24 vertical foot manhole with a 2 footwide opening at the top that has been closed … from January tomid-August, would have reason to believe that there definitely could beoxygen deficiency.\”Turning again to the language of ? 1926.32(f), we must now determinewhether the persons responsible for conducting Taylor’s workplaceinspections at the Central Park construction project site–companypresident O’Neill, vice president and safety director Fleitz, projectmanager Giannini, and project superintendent Garren–were \”capable ofidentifying\” this \”existing and predictable\” confined space entryhazard. As the Secretary correctly points out in her review brief, thetestimony of Taylor’s own witnesses clearly establishes that they werenot. \/Cf. Capform, Inc.,\/ 13 BNA OSHC 2219, 2221-22, 1987-90 CCH OSHD ?28,503, p. 37,776 (No. 84-556, 1989), \/aff’d without published opinion\/,901 F.2d 1112 (5th Cir. 1990) (\”Capform itself appears convinced that[its jobsite superintendent] Pelletier was not a ‘competent person'[since it] relies on Pelletier’s testimony that he had never hadresponsibility for inspecting the condition of soil in excavations andargues that Pelletier ‘lacks . . . expertise in soils-related areas’.\”)(ellipsis in original).In particular, we rely upon the following testimony as support for ourfinding that Taylor’s workplace inspectors were not \”capable ofidentifying\” the confined space entry hazard presented by the specialpurpose access shaft. Company president O’Neill testified that Taylorhad had no prior experience with entering manholes like the one at issuein this case. He further testified that, to the best of his knowledge,no employee of Taylor had been aware prior to August 19 that the manholeat the Central Park worksite presented an asphyxiation hazard or anyother safety problem. More specifically, he asserted, nobody in thecompany had been aware of the presence of an oxygen-deficient atmospherein the manhole or was knowledgeable generally about confined spaces.Concerning his own personal knowledge, O’Neill claimed that he had beenunaware prior to August 19 that OSHA considered \”dry shaft\” manholes tobe confined spaces and that OSHA required atmospheric testing andprotective equipment when employees entered such shafts. He furtherstated that he had not even been aware that an oxygen deficiency couldbe discovered in a manhole by using an instrument to conduct atmospherictesting. The company president acknowledged his awareness of the hazardof methane gas in sewers, but stated that he had had no such concernabout the dry shaft at issue here. He testified that he had not noticedanything during his workplace inspections that gave him cause forconcern about the manhole, but he also admitted that he had probably noteven looked at the shaft since \”we were totally unaware of the confinedspace issue.\”Project manager Giannini’s testimony about his level of awareness priorto the accident is similar. He admitted that, during the course of hisexperience, he had become aware of the hazards associated with sanitarysewer manholes. Thus, he was aware of the possibility of aircontamination or reduced oxygen levels in \/some\/ manholes. However, hestrongly denied that he had had any awareness, prior to August 19, thatthere was a possibility that air contaminants could accumulate in theCentral Park manhole or that that particular manhole otherwise posed ahazard to employees. [[7]]The testimony outlined above compels the conclusion that the employeesdesignated by Taylor as its workplace safety inspectors on the CentralPark project were not \”capable of identifying\” the confined space entryhazard presented by the special purpose access shaft.[[8]] We thereforefind that those employees were not \”competent persons\” within themeaning of ? 1926.20(b)(2).In so finding, we expressly reject Taylor’s arguments on review. Taylorfirst contends that the Secretary’s evidentiary showing in this case isinadequate to sustain her burden of proving a violation of the citedstandard under \”clear Commission precedent.\” In support of this claim,the employer cites and discusses six unreviewed administrative law judgedecisions that, taken as a whole, stand for the following propositions:(a) the Secretary bears the burden of proving an alleged violation ofsection 1926.20(b) (1) & (2); (b) because these standards are directedto the soundness of an employer’s safety program and\/or its inspectionprogram, the Secretary must prove a deficiency or defect in theemployer’s safety or inspection program in order to establish aviolation; and (c) the Secretary’s burden is not met merely by showingthe occurrence of an accident or the existence of hazardous conditionsat a worksite because even the best safety program cannot insure againstsuch events.While we do not disagree with any of these basic principles, \/see R & RBuiIders, Inc\/., 15 BNA OSHC 1383, 1991 CCH OSHD ? 29,531 (No. 89-282,1991), we reject Taylor’s argument in this case for two reasons. First,it is well settled that, contrary to Taylor’s assertion, the cases ithas cited do not constitute precedent binding on the Commission, becausethey are all unreviewed judge’s decisions. \/E.g., Mosser Constr. Co\/, 15BNA OSHC 1408, 1411 n.3, 1992 CCH OSHD ? 29,546, p. 39,902 n.3 (No.89-1027, 1991). More importantly, the cases cited by Taylor are alldistinguishable from the case that is now on review.As the Secretary correctly points out in her review brief, the fatalflaw in Taylor’s reasoning is the employer’s claim that the allegedviolation at issue here is based solely \”on the existence of thesubstantive violations involving the manhole [\/i.e.\/, the two violationsalready affirmed by the court] and the accident itself\”: [S]eparate and apart from evidence that the manhole was not inspected and that an accident occurred, there is ample record evidence that respondent’s supervisory personnel who conducted the inspections did not know that dry manholes could be dangerous. Indeed, it was Taylor’s defense that neither it nor other contractors knew about the hazard. It is this admitted lack of knowledge on the part of respondent’s inspectors which proves that the inspectors were not \”competent persons\” within the meaning of the standard.We fully agree.Also without merit is Taylor’s contention that the citation item must bevacated because the evidence it introduced in its defense establishesthat it had adopted and implemented a workplace inspection program priorto the accident, as required under the cited standard, while \”the ALJ’sfinding [of noncompliance] is based solely on the fact that Taylor’sacknowledged comprehensive safety program did not address one particularhazard.\” There is indeed some basis for this claim. Thus, it isundisputed on this record that, as a general matter, Taylor had alreadyadopted and implemented an adequate safety program prior to August 19,1988, including a program of regular and frequent workplace inspections.Accordingly, we must emphasize that our holding in this case should notbe construed as a wholesale condemnation of Taylor’s safety program oras a broad ruling on the overall competency of Taylor’s safetyinspectors. [[9]] Instead, this case was tried, and it has been decided,on a far narrower theory.In summarizing her arguments on review, the Secretary alleged that\”Taylor violated 29 C.F.R. 1926.20(b)(1) because its inspection programas well as the competence of its inspectors did not extend to the hazardof asphyxiation in dry manholes, which was responsible for the deaths ofthree of respondent’s employees.\” We have agreed with this argument asit relates to the competence of the safety inspectors. Under the clearterms of section 1926.32(f), the fact that Taylor’s workplace safetyinspectors were not \”capable of identifying\” an \”existing andpredictable\” hazard at the Central Park worksite requires us to findthat they were not \”competent persons\” within the meaning of section1926.20(b)(2). The fact that they may have been well qualified toidentify other safety hazards at that workplace, or at other workplaces,does not preclude us from entering this finding. On the contrary,applying the Secretary’s standards as she has written them to the factsof this case neither requires us nor permits us to make a generalassessment of the qualifications of Taylor’s employees (in terms oftheir training and experience) to be safety inspectors. We accordinglyhave made no effort to perform such an evaluation.For the reasons stated, the judge’s finding that Taylor failed to complywith the competency requirement of section 1926.20(b)(2), asincorporated into the cited standard, section 1926.20(b)(1), is affirmed.\/Penalty Assessment\/The Secretary proposed a penalty of $1000 for the alleged seriousviolation of 29 C.F.R. ? 1926.20(b)(1). Although he did not state anybasis for his determination, other than a general reference to thestatutory criteria for penalty assessment, [[10]] Judge Brady assessed apenalty of only $200. We conclude, however, that that amount isinadequate in view of the gravity of the violation and the employer’slack of good faith, and we therefore assess a penalty of $500. Thegravity of this serious violation, see section 17(k) of the Act, 29U.S.C. ? 666(k), is clear. As the compliance officer credibly testified,if Taylor had provided a \”competent person\” to inspect the Central Parkoffice complex worksite, that inspector in all likelihood would haveforeseen that an employee was eventually going to be exposed to aconfined space entry hazard and would have taken the necessaryprecautions, including atmospheric testing and the providing of personalprotective and emergency rescue equipment, to insure that an injury didnot occur when the employee entered the manhole. Three whollypreventable workplace fatalities would thereby have been avoided. As forthe statutory \”good faith\” factor, we must balance the commendablemeasures Taylor has taken to establish a company-wide safety program,including a program of regular and frequent workplace inspections, withthe clearly inadequate measures taken to implement that program at theCentral Park worksite. On balance, we conclude that this statutorycriterion weighs against Taylor. The employer’s efforts to insure thesafety of its employees at this particular worksite were clearly deficient.\/Order\/Accordingly, we affirm citation no. 1, Item 2. We assess a penalty of$500 for this serious violation of the Act.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: June 18, 1992————————————————————————FOOTNOTES:[[1]] See Commission’s order on Remand (Oct. 18,1991).[[2]] The repeated references in the autopsy reports of the deceasedemployees to \”sewers\” and \”sewer shafts\” must be viewed, in light of therecord as a whole, as factual errors. The clear preponderance of theevidence establishes that this manhole was not a sewer shaft or in anyway connected to a sewer.[[3]] Both Giannini and Garren were long-time employees of Taylor.Project superintendent Garren was one of the three employees who died inthe accident at issue. He had been the highest-level supervisoryemployee at the worksite on a full-time basis, with authority over allof Taylor’s employees and subcontractors. He had also been the Tayloremployee who bore primary responsibility for onsite project safety atthe Central Park worksite. These duties included monitoring job safetyon a daily basis. Project manager Giannini, who also had been assignedsafety responsibilities on this project, was Garren’s supervisor.Giannini’s duties, however, were not restricted to this one project, andhis contact with the site was therefore limited to occasional visits,\”usually a couple of times a week.\”[[4]] The cited standard and its critical definition section provide, asfollows: *? 1926.21 Safety training and education. * *…….* (b) Employer responsibility– …… (6)(i) All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required…. (ii) For purposes of paragraph (b)(6)(i) of this section, \”confined or enclosed space\” means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. \/Confined or enclosed spaces include\/, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and \/open top spaces more than 4 feet in depth\/ such as pits, tubs, vaults, and vessels. (Emphasis added).[[5]] Section 5(a)(1), the Act’s \”general duty clause,\” requires eachemployer to \”furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees.\”[[6]] In her review brief, the Secretary correctly argues that ?1926.20(b)(2), the standard that is incorporated by reference into thecited standard, ? 1926.20(b)(1), has \”[t]wo basic aspects\”: First, the standard prescribes \/what\/ must be done, \/i.e\/., \”frequent and regular inspections of job sites, materials, and equipment.\” Second, the standard prescribes \/who\/ is to do it, \/i.e.\/, \”competent persons.\” (Emphasis in the original). Taylor, she argues, has not complied with either of then requirements. Our conclusion, \/infra\/, that Taylor violated the \”who\” requirement of ? 1926.20(b)(2) fully supports our affirmance of the citation item at issue. Accordingly, we need not reach the Secretary’s alternative argument that Taylor also violated the standard’s \”what\” requirement.[[7]] In view of this unrebutted testimony, we agree with Taylor’sargument on review that Judge Brady erred in finding that Giannini was\”aware of the possibility of air contaminants and reduced oxygen in \/themanhole\/\” (emphasis added). That finding is hereby set aside.[[8]] The fact that the three deceased employees were allsupervisors–indeed, as indicated \/supra\/ note 3, Garren was themanagement representative who had primary responsibility for safety atthis worksite–provides further support for our conclusion. That thesethree employees all entered the shaft without taking any precautionswhatsoever is strong circumstantial evidence that they were not \”capableof identifying\” the hazard to which they were exposing themselves.[[9]] During the hearing, Taylor attempted to introduce into evidenceseveral documents that had been identified as safety-related materialsdistributed by the company to its project superintendents. The judgerejected those documents as exhibits. Nevertheless, after reviewingthem, he noted for the record that Taylor had \”an extensive safetyprogram.\” Based on our review of the evidence, we agree with thisassessment.[[10]] Section 17(j) of the Act, 29 U.S.C. ? 666(j), provides that\”[t]he Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.\””