“\ufeff\t\tGREBB ELECTRIC COMPANY, OSHRC DOCKET NO. 3552\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Calibri; font-size:11pt; color:WindowText; } p { font-family:Calibri; font-size:11pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } table.style_TableGrid { } p.style_FootnoteText { line-height:1; font-size:10pt; } .style_FootnoteText span { } span.style_FootnoteTextChar { font-size:10pt; } .style_FootnoteTextChar span { } span.style_FootnoteReference { position:relative;font-size:0.58em; bottom: 1ex;} .style_FootnoteReference span { position:relative;font-size:0.58em; bottom: 1ex;} p.style_Header { line-height:1; } span.style_HeaderChar { } p.style_Footer { line-height:1; } span.style_FooterChar { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:96px;margin-top:96px;margin-bottom:96px;margin-right:96px;} div.basic { width:16.51cm;height:22.86cm;} 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\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\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\u00a0\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\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\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 Complainant,\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\u00a0\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 v.\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\tOSHRC DOCKET NO.\t\t\t\t\t\t\t\t\t3552\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\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\tGREBB ELECTRIC COMPANY,\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\u00a0\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 Respondent.\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\u00a0\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\u00a0\t\t\t\t\t\t\t\t\t\tSeptember 4, 1974\t\t\t\t\t\t\t\t\t\tBefore MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\tThis matter is before this Commission for review of a March 15, 1974, decision of Judge John A. Carlson pursuant to 29 U.S.C. \u00a7 661(i). At issue is whether the citation was issued with reasonable promptness as required by 29 U.S.C. \u00a7 658(a). We hold that the respondent waived consideration thereof at this level because that defense was not raised in the proceedings below.\t\t\t\t\t\tSecretary v. Chicago Bridge and Iron Company, OSAHRC Docket No. 744 (January 24, 1974). We therefore affirm the Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\tChairman Moran would vacate item 1 of the citation for the reasons set forth in his dissenting opinions in\t\t\t\t\t\tSecretary v. Plastering, Incorporated, OSAHRC Docket No. 1037 (May 3, 1974), and\t\t\t\t\t\tSecretary v. Advanced Air Conditioning, Inc., OSAHRC Docket No. 1036 (April 4, 1974).\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\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\u00a0\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\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\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 Complainant,\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\u00a0\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 v.\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\tOSHRC DOCKET NO. 3552\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\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\tGREBB ELECTRIC COMPANY,\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\u00a0\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 Respondent.\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\u00a0\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\u00a0\t\t\t\t\t\t\t\t\t\tMarch 15, 1974\t\t\t\t\t\t\t\t\t\tCARLSON, JUDGE OSAHRC:\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act), contesting a citation issued by the Complainant against the Respondent under authority vested in Complainant by Section 9(a) of the Act. The citation alleges that as the result of an inspection of a workplace under the ownership, operation or control of the Respondent, located at \u20189825 East Girard Avenue, Denver, Colorado\u2019 and described as follows: \u2018apartment house construction site,\u2019 Respondent was determined to have violated Sec. 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Sec. 6 thereof.\t\t\t\t\t\tSpecifically\t\t\t\t\t\tthe citation which was issued June 22, 1973 alleges that violation resulted from a failure to comply with certain standards promulgated by the Secretary and codified in 29 CFR Part 1926. Four separate items of violation were set forth.\t\t\t\t\t\t\t\t\t\tThe description of these alleged non-serious violations as contained in the citation is as follows:\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\t\t\t\t\t\t\tStandard Allegedly Violated\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\tDescription of Alleged Violation\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\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\t29 CFR 1926.252(c)\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\tEmployer did not assure the removal of scrap lumber and other debris from work areas as required as the work progressed.\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\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\t29 CFR 1926.500(d)(1)\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\tYour employees were observed using flights of stairs having four or more risers that were not provided with the required stair handrails.\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\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\t29 CFR 1926.501(c)\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\tYour employees were observed using flights of stairs that had protruding nails in the stair tread which created a tripping hazard.\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\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\t29 CFR 1926.500(d)(1)\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\tYour employees were observed working adjacent to open sided floors or platforms in excess of 6 feet above the ground or lower floor level which were not provided with the required standard\t\t\t\t\t\t\t\t\tguardrailing\t\t\t\t\t\t\t\t\ton the open sides of such floor or platform.\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\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\tThe citation called for correction of all alleged violations as of June 27, 1973.\t\t\t\t\t\t\t\t\t\tPursuant to the enforcement procedure set forth in Sec. 10(a) of the Act, Respondent was notified on June 22, 1973 that penalties of $30.00 each were proposed for Items 1 and 3, a penalty of $25.00 for item 4 and no penalty for item 2. $Respondent filed a timely notice of contest as to all violations and complaint and answer were thereafter duly filed by the respective parties.\t\t\t\t\t\t\t\t\t\tThe matter came regularly on for hearing at Denver, Colorado before the undersigned judge on November 9, 1973. No appearance was made by or on behalf of any affected employee. The authorized employees\u2019 representative did not receive appropriate notice of the hearing from\t\t\t\t\t\tRespondent\t\t\t\t\t\tbut such defect was duly corrected through the execution of a waiver filed by the business agent for the union local, which document is of record.\t\t\t\t\t\t\t\t\t\tSTANDARDS INVOLVED\t\t\t\t\t\t\t\t\t\tThe standards allegedly violated in connection with each of the items of the citation read as follows:\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\t\t\t\t\t\t\tItem\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\tStandard\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\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSec. 1926.252 Disposal of waste materials. (c) All scrap lumber, waste material, and rubbish shall be removed from the immediate work area as the work progresses.\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\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\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSec. 1926.500 Guardrails, handrails, and covers. (e) Stairway railing and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:\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\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\t3\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\tSec. 1926.501 Stairways. (c) All parts of stairways shall be free of hazardous projections, such as protruding nails.\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\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\t4\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\tSec. 1926.500 Guardrails, handrails, and covers. (d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above\t\t\t\t\t\t\t\t\tadjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard\t\t\t\t\t\t\t\t\ttoeboard\t\t\t\t\t\t\t\t\twherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.\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\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\tSUMMARY OF THE EVIDENCE\t\t\t\t\t\t\t\t\t\tThe sole witness testifying in this case was Complainant\u2019s compliance officer. On the morning of\t\t\t\t\t\tMay 10, 1973\t\t\t\t\t\the visited a construction site where approximately 50 buildings containing 450 apartment units were being built (Tr. 25\u201327, 51.) He first met with the project manager of the general contractor who in turn called in representatives of the various subcontractors on the job, at which time an opening conference was held. Some 20 subcontractors were engaged in the project. One Robert Holcomb, a foreman for\t\t\t\t\t\tGrebb\t\t\t\t\t\tElectric and its highest management representative at the site, was at the conference. The compliance officer was accompanied on his inspection by the project foreman for the general contractor and was accompanied by representatives of each of the subcontractors during the portions of the inspection which related to their\t\t\t\t\t\tparticular projects\t\t\t\t\t\t(Tr. 28\u201329, 46). Mr. Holcomb accompanied the compliance officer throughout the electrical portion of the inspection which took place about mid-way through the entire inspection. The witness understood that a total of seven\t\t\t\t\t\tGrebb\t\t\t\t\t\temployees were on the job, including Holcomb, but he was uncertain as to the number which he actually saw, indicating that it was perhaps 3 or 4. They were actually performing work while he observed them; were carrying tools of the electrical trade; and were indicated to be\t\t\t\t\t\tGrebb\t\t\t\t\t\temployees (Tr. 54\u201355, 91). No other electrical contractors were involved in the project (Tr. 31).\t\t\t\t\t\t\t\t\t\tRegarding the first item of alleged violation, four color photographs were introduced through the witness, each depicting rather massive amounts of lumber, boxes and other debris, all located on the ground outside of buildings (Compl\u2019s.\t\t\t\t\t\texs. 1\u2013A through 1\u2013D). No evidence was introduced showing that Respondent\u2019s employees worked in any of the exterior areas depicted. The witness did testify, however, that inside the structures where Respondent\u2019s employees were\t\t\t\t\t\tactually seen\t\t\t\t\t\tat work, areas were obstructed by similarly strewn debris, which exposed the employees to a danger of tripping and nail punctures (Tr. 84\u201387, 103\u2013104).\t\t\t\t\t\t\t\t\t\tRespecting items 2 and 3 of the citation alleging that Respondent\u2019s employees were \u2018observed using flights of stairs\u2019 which were not provided with standard handrails and which had protruding nails in the treads, creating tripping hazards, two additional photographs (Compl\u2019s.\t\t\t\t\t\texs. 2 & 3) were introduced. These showed stairways in what were obviously incomplete buildings of frame construction and verified the witness\u2019s accompanying testimony that the centers of the temporary 2 by 4 treads on the stairs were fixed by double headed framing nails which protruded approximately half an inch above the level of the treads; and that such stairs in fact, were not equipped with rails on the open side (Tr. 33, 35\u201336).\t\t\t\t\t\t\t\t\t\tRelative to the fourth item of alleged violation which indicated that employees were \u2018observed\u2019 working on open-sided floors or platforms more than 6 feet above ground level, a further photograph (Compl\u2019s. ex. 4) was introduced which again depicted a portion of the incomplete interior of a frame structured building. The photo does show what appears to be a platform extending from near the viewer toward second floor studding in the background. Affixed to the studding is what was identified by the witness and indeed appears in the photograph to be a length of electrical conduit and a junction box. There is no railing on the platform (Tr. 70\u201371). The witness was unable to give any definite information as to the dimensions of the platform nor was he able to give an opinion as to how close a worker would have to be to the edge of the platform in order to be in danger of a fall (Tr. 72\u201376).\t\t\t\t\t\t\t\t\t\tThe witness repeatedly acknowledged that with respect to items 2, 3 and 4 he at no time observed any of Respondent\u2019s employees using the stairs in question or upon the platform in question (Tr. 88); and that the language of the citation was inaccurate as to those items wherein it alleged that \u2018employees were observed\u2019 in the locations in question (Tr. 102). The compliance officer made it clear in his testimony that he believed that Respondent,\t\t\t\t\t\tGrebb\t\t\t\t\t\tElectric\u2019s employees, were exposed to the dangers which he believed to be presented by the stairs, because the stairways provided the only access to the second floors (Tr. 31, 103).\t\t\t\t\t\t\t\t\t\tThis witness further testified that superintendent Holcomb had told him that Respondent did obtain materials from outside the state of Colorado and that a specific conversation was held concerning Atlas Lighting Fixtures which were in cartons addressed from the state of California and that Respondent was using such fixtures (Tr. 92\u201393). It was stipulated that: \u2018The parties agree that\t\t\t\t\t\tGrebb\t\t\t\t\t\tElectric uses some materials in its business which were manufactured outside of Colorado\u2019 (Tr. 110).\t\t\t\t\t\t\t\t\t\tOPINION\t\t\t\t\t\t\t\t\t\tRespondent at the outset of the hearing moved for dismissal arguing that the Act imposes obligations and provides procedures which violate the Fifth, Sixth, Seventh, Ninth and Fourteenth Amendments to the Constitution of the United States. The multi-part motion was denied since the judges of this Commission have no authority to rule on issues which involve direct attacks upon the constitutionality of provisions of the Act.1\t\t\t\t\t\t\t\t\t\tAlso, Respondent\u2019s related (and untimely) request for a civil jury trial under the Seventh Amendment was rejected since clearly no civil proceeding under the Act would qualify as an action at common law.\t\t\t\t\t\t\t\t\t\tRespondent also argues generally that all conditions complained of were caused by the general contractor or persons other than\t\t\t\t\t\tGrebb\t\t\t\t\t\tElectric and that Respondent should hence be absolved from any liability. It is now well settled, however, that each employer in a workplace has the duty to make that place safe for his workers, irrespective of who created a violative condition which exposes those employees to the contemplated hazard.2\t\t\t\t\t\t\t\t\t\tAs to item 1 of the citation regarding alleged presence of scrap and debris in the work area the evidence establishes violation.3\t\t\t\t\t\tThe photographs presented in hopeful substantiation of this charge fail utterly to do so since the compliance officer ultimately acknowledged that the exterior areas shown were not within Respondent\u2019s work area (Tr. 99). However, there was direct, emphatic and unrebutted testimony that the compliance officer saw employees of Respondent moving or working in areas where such debris was present and offered a danger.\t\t\t\t\t\t\t\t\t\tWith respect to the three remaining items concerning use of stairs and platforms the question is plainly whether\t\t\t\t\t\tsufficient\t\t\t\t\t\tevidence was presented to show that Respondent\u2019s employees were exposed to the hazards envisioned in the cited standards. Complainant puts it succinctly in his brief:\t\t\t\t\t\t\t\t\t\tWhile he [the compliance officer] did not personally observe their exposure to other hazards, his assumptions of exposure were entirely reasonable.\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\tThis judge cannot agree. Circumstantial evidence, depending upon its quality, is perfectly competent to prove a charge. The record in this case, however, shows that the assumptions made to connect Respondent\u2019s employees to use of the stairs or platforms were far too speculative and conjectural to sustain the burden of proving employee exposure. Exposure, in common with every other element of violation, must be proved by Complainant.4\t\t\t\t\t\tIn this case Complainant was content to assume that since some wiring was at a second story level, employees used the uncompleted stairs to get there and used the platform as a work surface. There was no evidence as to when the stairs or platforms were put in or when the wiring was installed. From the photographs and\t\t\t\t\t\ttestimony\t\t\t\t\t\tit is perfectly apparent that second story areas of electrical work could have been reached by ladders, scaffolds or other means. Complainant has sought to sustain its burden of proof by the showing of a mere possibility. The violations cannot be sustained on such a basis and the citation must hence be vacated as to items 2, 3 and 4.\t\t\t\t\t\t\t\t\t\tThe compliance officer testified concerning the method used in deriving the penalties proposed by Complainant (Tr. 39\u201345). He used certain worksheets provided him by his superiors. As to item 1 involving housekeeping, the believed that the likelihood of injury from an inadequate clearance of debris was \u2018moderate\u2019 and he also felt that the severity of injury would fall within the medium range, since it could involve danger of a puncture wound from a nail. Considering seven employees to have been exposed to the danger presented by the debris an unadjusted proposed penalty of $120.00 was recorded which was reduced by 20% factor based upon the employer\u2019s good faith, a 10% factor based on its size and a 20% factor based on its prior history free of violations under the Act. These are the maximum adjustments permitted under Complainant\u2019s intra-agency guidelines. An additional 50% reduction was allowed as an \u2018abatement credit\u2019 in anticipation of abatement. The ultimate penalty proposed was hence $30.00 (Compl\u2019s.\t\t\t\t\t\tex\u2019s. 5 and 6).\t\t\t\t\t\t\t\t\t\tIn contested cases under the Act jurisdiction to assess monetary penalties resides exclusively with the Commission. Section 17(j) of the Act requires that consideration be given to the size of the business of the employer, the gravity of the violation, the employer\u2019s good faith and the history of previous violation. In\t\t\t\t\t\tSecretary of Labor v. Nacirema Operating Company, Inc.,\t\t\t\t\t\tOSAHRC Docket No. 4 the Commission held that the element of gravity should generally be accorded the greatest weight. Other cases have held that in determining gravity attention must be given to the number of employees exposed; the duration of exposure; the precautions taken against injury; and the degree of probability of recurrence of injury.\t\t\t\t\t\t\t\t\t\tThis judge has weighed the relevant factors as disclosed in the evidence in this case and concludes that a penalty of $30.00 for the violation of 29 CFR 1926.252(c) is reasonable and appropriate.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\tThe entire record herein supports the following findings of fact:\t\t\t\t\t\t\t\t\t\t1. That Respondent is a corporation engaged in electrical contracting in the state of Colorado and that it uses in its work materials which originate beyond the borders of Colorado.\t\t\t\t\t\t\t\t\t\t2. On May 10, 1973 Respondent was engaged as a subcontractor performing electrical work on a construction project in Denver, Colorado involving erection of apartment houses.\t\t\t\t\t\t\t\t\t\t3. On such date Respondent\u2019s worksite was inspected by a compliance officer employed by Complainant.\t\t\t\t\t\t\t\t\t\t4. At the time material hereto Respondent had approximately 7 employees on the job.\t\t\t\t\t\t\t\t\t\t5. Such employees were working in areas where there were accumulations of scrap lumber with protruding nails and other debris and that in moving through or about such areas Respondent\u2019s employees were exposed to a danger of tripping\t\t\t\t\t\tanf\t\t\t\t\t\tfalling; and puncture wounds from the nails.\t\t\t\t\t\t\t\t\t\t6. On May 10, 1973 certain electrical installations had been made by Respondent\u2019s employees and that certain of these had been installed above the\t\t\t\t\t\tfirst floor\t\t\t\t\t\tlevel in the frame apartment structures on the sites.\t\t\t\t\t\t\t\t\t\t7. The evidence showed that wooden stairways having more than 4 risers and having no standard railings on the open side were in place in some units; and that such stairways had nails protruding from the center of the temporary wooden treads.\t\t\t\t\t\t\t\t\t\t8. Platforms more than 6 feet above the ground not equipped with guard rails were constructed in some units at the time of inspection.\t\t\t\t\t\t\t\t\t\t9. The record contains no persuasive evidence\t\t\t\t\t\tsufficient\t\t\t\t\t\tto show that Respondent\u2019s employees used either such stairways or platforms in the performance of or incidental to the performance of their work.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. That Respondent\t\t\t\t\t\twas at all times\t\t\t\t\t\tmaterial hereto an employer engaged in a business affecting Commerce within the meaning of the Act and hence subject to the jurisdiction of this Commission.\t\t\t\t\t\t\t\t\t\t2. That the evidence establishes that Respondent violated 29 CFR 1926.252(c) as alleged in item 1 of the citation.\t\t\t\t\t\t\t\t\t\t3. That the evidence fails to establish that Respondent violated 29 CFR 1926.500(e)(1) as alleged in item 2 of the citation.\t\t\t\t\t\t\t\t\t\t4. That the evidence fails to establish that Respondent violated 29 CFR 1926.500(c) as alleged in item 3 of the citation.\t\t\t\t\t\t\t\t\t\t5. That the evidence fails to establish that Respondent violated 29 CFR 1926.500(d)(1) as alleged in item 4 of the citation.\t\t\t\t\t\t\t\t\t\t6. That a penalty of $30.00 is reasonable and appropriate in connection with item 1 of the citation.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tIn accordance with the foregoing it is hereby ORDERED:\t\t\t\t\t\t\t\t\t\t1. That item 1 of the citation is affirmed and that a penalty of $30.00 is assessed in connection therewith.\t\t\t\t\t\t\t\t\t\t2. That items 2, 3 and 4 of the citation are vacated together with such penalties as were proposed in connection therewith.\t\t\t\t\t\t\t\t\t\t\u00a0\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\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 \t\t\t\t\tPublic Utilities Commission of California v. United States, 335 U.S., 534, 78 S. Ct. 446 (1958);\t\t\t\t\t\tSecretary of Labor v. American Smelting and Refining Company\t\t\t\t\t\tOSAHRC Docket No. 10.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2 \t\t\t\t\tSee, for example,\t\t\t\t\t\tSecretary of Labor v. Charles S. Powell, OSAHRC Docket No. 1971;\t\t\t\t\t\tSecretary of Labor v.\t\t\t\t\t\tMeyerbank Electric Company, Inc., OSAHRC Docket No. 2011.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3 \t\t\t\t\tOne may wonder why the somewhat more general housekeeping regulation at 29 CFR 1926.25(a) was not cited but 1926.252(c) is regarded as applicable.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4 \t\t\t\t\tSecretary of Labor v.\t\t\t\t\t\tAsyland Oil, Inc., OSAHRC Docket No. 2179;\t\t\t\t\t\tSecretary of Labor v. Ellison Electric, OSAHRC Docket No. 412.\t\t\t”