“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2834 GROSSMAN STEEL & ALUMINUM CORP., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 18, 1978DECISIONBefore: CLEARY, Chairman; and BARNAKO,Commissioner.*BY THE COMMISSION:? A January 24, 1977 decision of Review CommissionJudge Seymour Fier is before the Commission for review pursuant to section12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651 etseq. (?the Act?). At issue is whether the Judge erred in finding (1) that theRespondent violated the general duty imposed upon employers by section 5(a)(1)of the Act, and (2) that the Respondent violated section 5(a)(2) of the Act[*] by failing to comply withtwo occupational safety standards.[?] Also in issue is theappropriateness of the $100 penalty assessed by the Judge for the Respondent?snoncompliance with a third safety standard, 29 C.F.R. ? 1910.157(d)(3)(i).??????????? TheJudge?s decision affirming the charges before us was directed for review byformer Commissioner Robert D. Moran on February 23, 1977, in a direction forreview that did not set forth specific issues. The Respondent filed a brief inresponse to that direction, raising the issues previously noted.[?] On January 6, 1978, theCommission issued an order pursuant to subparagraph D2 of the Commission?sPolicy Statement of December 1, 1976, published at 41 Fed. Reg. 53015, December3, 1976, affording Complainant the opportunity to file a brief in response tothe issues raised by the Respondent in its brief to the Commission. By letterdated January 24, 1978, Complainant indicated that he would not file a brief onreview in this case, but would rely instead on the Judge?s decision. Thismatter will therefore be decided without the benefit of additional argument.??????????? TheRespondent, Grossman Steel and Aluminum Corp., was engaged as an ironsubcontractor for the erection of stairways at a Veterans Administration (VA)hospital construction project in New York City when the site was inspected byan authorized representative of the Department of Labor. The Respondentemployed five employees at the site and was one of several contractors andsubcontractors working on the project. The construction project consisted of 10separate but attached sections, each designated by a letter, that covered anarea approximately 250\u2032 x 400\u2032 in size. The new construction was onthe grounds of the existing VA structure.??????????? Thesection 5(a)(1) general duty clause violation concerns the alleged exposure ofemployees to the dangers of falling material where no overhead protection wasprovided over two entrances to the structure, designated as ?B\/C? and ?E.?[?] Work was being performedabove the cited entrances by employees of various contractors not including theRespondent. The building was 9 stories tall above entrance B\/C and 4 storiestall over entrance E.??????????? JudgeFier affirmed the ? 5(a)(1) allegation, concluding that the hazard of fallingdebris and other materials, where overhead protection was lacking, wasrecognized throughout the industry. He further concluded that the Respondent?permitted its workers to enter the hazardous area by failing to takeaffirmative action.???????????? Wedisagree. We can find no support in the record for the finding that theRespondent?s employees entered the hazardous area.[**] To the contrary, therecord establishes that the employees did not, nor did they have any reason to,use entrances B\/C and E. Unrebutted testimony establishes that the Respondent?semployees were instructed not to use the cited entrances because they wereunsafe.[??] These employees were notworking in sections B, C or E of the building but rather were working in theArea K service building that had direct ground level access. If they had anyreason to enter other sections of the project, they could walk through fromArea K because walls were not yet in place. The unrebutted evidence set forthabove compels a finding that the Respondent?s employees were not exposed to thehazard of falling materials at the uncovered entrances.[??]??????????? Moreover,the entry of this finding and the reversal of the Judge?s contrary findingcompels a re-evaluation of the Judge?s ultimate conclusion that the Respondentviolated section 5(a)(1). In order to establish a violation of section 5(a)(1)the Secretary must prove:??????????? 1.That the employer failed to render its workplace ?free? of a hazard which was??????????? 2.?recognized,? and??????????? 3.causing or likely to cause death or serious physical harm to his employees.National Realty & Constr. Co., Inc. v.OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973).??????????? Implicitin the above elements is the necessity for establishing employee exposure tothe cited hazardous condition. In particular, we note that we cannot conclude,in the absence of a finding of employee exposure, that an employer has failedto provide a workplace free from a hazard that was ?causing or likely to causedeath or serious physical harm to his employees? (emphasis added). In this casethe Secretary failed to prove the existence of such a hazard. We conclude,therefore, that the Secretary has failed to prove a violation as alleged.??????????? Item1 of Citation No. 1, also affirmed by the Judge, alleges that the Respondentfailed to provide a fire alarm system at the site as required by the safetystandard published at 29 C.F.R. ?\u00a01926.150(e)(1). That standard providesthe following:?1926.150 Fire Protection.?(e) Fire alarm devices. (1) An alarm system,e.g., telephone system, siren, etc., shall be established by the employerwhereby employees on the site and the local fire department can be alerted foran emergency.???????????? TheRespondent did not provide an alarm within the structure. The Respondent?sChairman testified, however, that he had discussed an alarm system with anothercontractor at the site, Bethlehem Steel Corporation, when work was commenced.It was agreed that in the event of an emergency the horn on Bethlehem?shoisting equipment would be blown several times to distinguish this emergencysignal from the signal (a single blow) designating working hours. The recordfurther establishes that the Respondent?s employees could notify the hoistoperator within 5 or 10 seconds if an alarm was needed by walking or running tothe building perimeter nearest to the hoist. Alternatively, employees couldalso hand signal the hoist operator because, due to the lack of walls in thestructure, the hoist was within their sight.??????????? Asnoted previously, the construction site was next to an operating VA hospital.Although there was no means in the areas under construction for alerting thefire department, according to witnesses Grossman the hospital had ?its own firedepartment system.? At its closest point the project was approximately 100 feetfrom the hospital.??????????? Thecited standard requires that an alarm system be established so that employeesand the fire department can be alerted for emergencies. No specifications forthe system are given. All that is required is a system reasonably calculated to(1) notify employees that an emergency condition exists on the site, and (2)notify the fire department so that appropriate action can be taken. Section1926.150(e)(1) is accordingly a ?performance standard? that indicates thehazard to be protected against and the performance criteria for evaluating theadequacy of the employer?s abatement efforts. See e.g., Hughes Brothers,Inc., ? ? OSAHRC ??, 6 BNA OSHRC ??, 1978 CCH OSHD ?22,909 (No. 12523,1978). The examples listed in the standard are illustrative only. The employeris not limited to using these systems, so long as the method chosen achievesthe desired results.??????????? Wetherefore must determine whether the system provided by the Respondent,consisting of an on-site horn signal to alert employees and the use of thehospital?s fire department system, satisfied the performance ?1910.252(a)(2)(iv)(c). The cited standard sets forth the followingrequirements:? ?1910.252 Welding, cutting and brazing.(a)Installation and operation of oxygen-fuel gas systems for welding and cutting.(2)Cylinders and containers.(iv)Oxygen storage.(c)Oxygen cylinders in storage shall be separated from fuel-gas cylinders orcombustible materials (especially oil or grease), a minimum distance of 20 feetor by a noncombustible barrier at least 5 feet high having a fire-resistancerating of at least one-half hour.???????????? Duringhis inspection, the compliance officer observed one oxygen tank and oneacetylene tank standing upright and tied together in front of the Respondent?strailer. Neither hoses nor gauges were attached to the tanks. The complianceofficer testified that he was informed by the Respondent?s representative thatthe tanks were in storage and were fully charged. On the other hand, theRespondent?s Chairman testified that the tanks were not in storage, but wereready for use in that location. According to the witness, gauges and hoses wereremoved to avoid theft and were kept in the trailer. criteria noted above. Weconclude that it did. We note that, in affirming the alleged violation, JudgeFier did not consider the short period of time it would take employees to orallynotify the crane operator that in alarm was necessary, nor did he consider theproximity of the worksite to the hospital.[??] We further note thatthere is no evidence that an onsite electrical alarm system would have beenmore effective than the system provided by the Respondent.[***]??????????? Item4 of Citation No. 1 alleges that the Respondent failed to comply with therequirements of the safety standard published at 29 C.F.R.??????????? JudgeFier found that the tanks were not ?hooked up? and that there was no evidenceto show that they were not inactive and stored. Accordingly, he affirmed thealleged violation. We disagree.??????????? InUnited Engineers and Constructors, Inc., 75 OSAHRC 69\/A2, 3 BNA OSHC1313, 1974-75 CCH OSHD ?19,780 (No. 2414, 1975), appeal dismissed, No.75-1946 (3d Cir., September 17, 1975), the Commission affirmed the Judge?sconclusion that ?\u00a01910.252(a)(2)(iv)(c) was not violated because thecylinders were not in storage within the meaning of the standard. In that case,oxygen and acetylene cylinders, found together on the site, did not haveregulators and hoses attached but were located in an area where burning wouldbe done on an intermittent basis. The regulators and hoses were removed nightlyto prevent leaks. The facts in the instant case are essentially indistinguishableand United Engineers is therefore dispositive. The Respondent has successfullyrebutted the Secretary?s prima facie case and has established that the tankswere not in storage but rather were available for use in an area where weldingwas to be performed on an intermittent basis. The charge is vacated.??????????? Item3 of Citation No. 1 alleged a violation of the portable fire extinguishermaintenance standard published at 29 C.F.R. ? 1910.157(d)(3)(i). On review, theRespondent does not object to the Judge?s affirmance of the violation, but doestake exception to the Judge?s assessment of a $100 penalty. The Secretary didnot propose a penalty for this item.??????????? Theviolation concerns a portable fire extinguisher located in the Respondent?strailer that needed recharging.[???] The compliance officertestified that no penalty was proposed because the employer had provided anextinguisher, even though it was not fully charged, and had indicated that theproblem would be corrected immediately. In addition, the Respondent?s witnesstestified that the cited extinguisher had been newly purchased 7 or 8 monthsprior to the inspection.??????????? Atthe outset we note that the Commission has the authority to assess penalties inexcess of those proposed by the Secretary. Robert T. Winzinger, Inc.. 76OSAHRC 88\/D13, 4 BNA OSHC 1475, 1976-77 CCH OSHD ?20,929 (No. 6790, 1976), andcases cited therein. However, the penalty assessed for this violation appearsto be excessive. Although it was not fully charged, the extinguisher wasoperable. The Respondent had exhibited good faith in newly purchasing theextinguisher for use at the worksite. Under these circumstances, we agree withthe Secretary that no penalty is warranted.??????????? Itis therefore ORDERED that items 1 and 3 of Citation No. 1, and Citation No. 2are vacated. The $100 penalty assessed for item 4 of Citation No. 1 is vacated.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 18, 1978??????????? CommissionerCOTTINE took no part in the consideration or decision of this case for thereasons set forth in his separate opinion.SEPARATE OPINION??????????? Asa new member of the Commission, I must resolve the issue of my participation inpending cases. It is also necessary for me to set out the principles guiding mydecision on this important issue.??????????? Inthis case, Chairman Cleary and Commissioner Barnako reached a unanimousdecision on the merits before I received my commission on May 1, 1978. Adecision was already in preparation when I assumed office. I have concludedthat the wisest exercise of discretion is to decline to participate in thiscase even though a new Commission member has authority to participate inpending cases. It should be emphasized that by declining to participate Iexpress no opinion on the procedural or substantive issues in this case or onthe appropriateness of the accompanying order.Discretion of Commission Members??????????? Asa matter of law, it is not necessary for all Commission members to participatefor an agency to take official action. In Drath v. FTC, 239 F.2d 452(D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal TradeCommission issued a cease-and-desist order with only three of its five membersparticipating. The Court of Appeals rejected petitioner?s contention that the FTCcan act in its adjudicatory capacity only when all members participate, exceptwhen there is a vacancy. The court ruled that official action can be taken bythe majority of the requisite quorum. Also Frisher & Co. v. BakeliteCorp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v. FlotillProd. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of theOccupational Safety and Health Act, 29 U.S.C. ? 661(e), provides:Forthe purposes of carrying out its functions under this chapter, two members ofthe Commission shall constitute a quorum and official action can be taken onlyon the affirmative vote of at least two members.???????????? Thus,the unanimous decision already reached in this case satisfies the quorum andofficial action requirements of the Act and my participation is not necessaryfor the Commission to carry out its adjudicatory functions in this particularcase.??????????? However,it is also settled that a new member of an administrative agency mayparticipate in pending cases. For example, a new member of the CivilAeronautics Board who had not participated in previous proceedings was entitledto vote and break an existing tie where he had familiarized himself with therecord. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing UnitedAir Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[???]. In United thecourt indicated that, where a member voting with the majority without hearingoral argument ?had the record before him and the benefit of briefs?, there wasno abuse of discretion in his participation, 281 F.2d at 56. There are numerousother cases supporting this holding. The clearest statement of law is set forthin Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):Thedecisions of numerous courts and administrative agencies establish that, evenwithout agreement of the parties, a member of an administrative agency who didnot hear oral argument may nevertheless participate in the decision where hehas the benefit of the record before him. [footnotes omitted] \u00a0348 F.2d at 802.[???] See Au Yi Lau v. U.S.Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir.1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir.1976). Thus, a new member possesses the necessary authority to participate inall cases pending before the Commission on assuming office.??????????? Thougha new member may participate in all pending cases, particularly those involvingan impasse, the decision remains a matter of discretion since adjudicatorydecision may be upheld on a majority of a quorum. In FTC v. Flotill prod.,389 U.S. 179 (1967) rev?g 358 F.2d 224 (9th Cir. 1966), an FTC memberappointed to fill one of two vacancies, declined to participate because he hadnot heard the oral argument. Thus, three of the possible four Commissionersactually participated in the decision. As a result, the FTC issued acease-and-desist order based on the affirmative vote of only two members.Despite its obvious impact on the number of members constituting a majority,the Court did not review the exercise of discretion by the new member. Instead,the Court accepted the abstention at face value and upheld the action of thetwo members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5thCir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965).In addition, administrative decisions involving two or more abstentions havebeen upheld by reviewing courts without question or comment on the grounds forthese abstentions. All that was necessary to sustain the agency decision was amajority of the required quorum. E.G., Greater Boston Television Corp. v.FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S.923 (1971).Decision Not to Participate??????????? Idecline to participate in this case because a majority of the Commission hasreached agreement on the merits and my vote would have no effect on theoutcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako havereached a unanimous decision, my participation would delay the issuance ofdecisions and conflict with the goal of a prompt and efficient decision-makingprocess. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir.1975), citing 5 U.S.C. ? 555(b). Since abatement is stayed until the Commissionenters a final order, 29 U.S.C. ? 659(b), additional deliberations would delaythe control of hazardous working conditions in any case where the Commissionhas determined that a violation of the Act exists. That result would beinconsistent with the statutory purpose to assure so far as possible safe andhealthful working conditions for every working man and woman. 29 U.S.C. ?651(b).??????????? Iwill, however, participate fully in all cases in which previous Commissiondeliberations have resulted in a one-to-one deadlock. Decisions by an equallydivided Commission are without precedential value, e.g., Life SciencesProducts Co., 77 OSAHRC 200\/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCHOSHD ?22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir.Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission?sadministrative law judges. Moreover, these decisions also promote needlesslitigation in the U.S. Courts of Appeals to decide issues which should initiallybe determined by the Commission, because its members have specialized training,education, and experience in occupational safety and health. 29 U.S.C. ?661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; KeystoneRoofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution ofpending issues also promotes a more uniform application and development ofoccupational safety and health law. After reading the record, I willparticipate in the consideration and decision of these cases.Conclusion??????????? Mydecision not to participate in pending cases which have reached a unanimousdecision by my colleagues, but to participate in those cases with unresolvedissues, promotes the prompt adjudication of cases. It also assures the partiesand the public of the full benefit of Commission review. Both of these resultsare essential in deciding cases affecting the lives, health and safety ofAmerican workers, the operation of American business, and the effectiveadjudication of cases by the administrative law judges.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2834 GROSSMAN STEEL & ALUMINUM CORP., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 24, 1977Appearances:FrancisV. LaRuffa, Regional SolicitorUnitedStates Department of Labor1515Broadway, Room 3555NewYork, New York 10036Attorneyfor complainant by Helen E. Huyler, Esq., of Counsel\u00a0GrossmanSteel & Aluminum Corp.375Western HighwayTappan,New York 10983forRespondent by Warren J. Grossman, Esq., pro se?DECISION AND ORDERFier, Judge:PRELIMINARY STATEMENT??????????? Thisis a proceeding pursuant to section 659 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. ? 651, et seq., hereinafter called the Act), whereinrespondent contests the citation and penalty for four nonserious and oneserious violation. The citations dated June 17, 1976, were based on aninspection conducted April 13, 14, 15, 19, 20 and 21 of 1976. The citations andproposed penalties were issued pursuant to sections 9(a) and 10(a) of the Act.??????????? Inaccordance with section 10(c) of the Act, 29 U.S.C. 659(c) respondent, througha letter dated June 23, 1976, noted its timely contest of the citations andproposed penalties.??????????? Thecitations for the alleged nonserious violations sets forth the following:Citation No. 1 Item No. Standard Date by which alleged violation must be corrected Description of alleged violation 1 29 CFR 1926.150(e)(1) June 28, 1976 An alarm system was not established by the employer whereby employees on the site and the local fire department could be alerted in case of fire or other emergency. \u00a0 \u00a0 \u00a0 \u00a0 A penalty of $60.00 was proposed. \u00a0 2 29 CFR 1926.150(e)(2) June 28, 1976 \u00a0 The alarm code and reporting instructions were not conspicuously posted at phones and at employee entrances to the site. ? \u00a0 \u00a0 \u00a0 No penalty was proposed. \u00a0 3 29 CFR 1910.157(d)(3)(i) pg. 266 Immediately upon receipt of citation Failure to properly maintain the 1A:10BC rated fire extinguisher that was located in the office trailer which was in need of recharging. \u00a0 \u00a0 \u00a0 \u00a0 No penalty was proposed. \u00a0 4 29 CFR 1910.252(a)(2)(iv)(c) pg. 405 Immediately upon receipt of citation Failure to properly store oxygen cylinders and acetylene cylinder that were located outside of the office trailer. Said cylinders were stored together. \u00a0 \u00a0 \u00a0 \u00a0 A penalty of $55.00 was proposed. Citation No. 2?Serious Violation \u00a0 1 Public Law 910 596 Section 5(a)(1) General Duty Clause Immediately upon receipt of citation Exposure of employees to the dangers of falling material where inadequate or no overhead protection was provided over two designated entrances to Section B\/C and Section E. This is a recognized hazard in the construction industry. Employees were exposed through their normal duties in the course of their work in and about the structure. Overhead hazards were high in that materials were being transported from grade to upper levels by means of tower cranes located in the immediate areas of these main entrances. Should any material fall from these overhead floor levels, a resulting accident could be death or serious physical harm to employees. \u00a0 \u00a0 \u00a0 \u00a0 A penalty of $600.00 was proposed. \u00a0 \u00a0STANDARDS AS PROMULGATED29 CFR1926.150(e) Fire alarm devices.(1) Analarm system, e.g., telephone system, siren, etc., shall be established by theemployer whereby employees on the site and the local fire department can be alertedfor an emergency.?(2)The alarm code and reporting instructions shall be conspicuously posted atphones and at employee entrances.?29 CFR1910.157(d)(3)Maintenance. (i) At regular intervals, not more than 1 year apart, or whenspecifically indicated by an inspection, extinguishers shall be thoroughlyexamined and\/or recharged or repaired to insure operability and safety; orreplaced as needed.?29 CFR252(a)(2)(iv)(c)Oxygen cylinders in storage shall be separated from fuel-gas cylinders orcombustible materials (especially oil or grease), a minimum distance of 20 feetor by a noncombustible barrier at least 5 feet high having a fire-resistancerating of at least one-half hour.\u00a029U.S.C. 654(a)(1) which provides as follows:Sec.5(a) Each employer?(1) shall furnish to each of his employees employment and aplace of employment which are free from recognized hazards that are causing orlikely to cause death or serious physical harm to his employees.\u00a0ISSUES??????????? 1.Whether the respondent violated the Occupational Safety and Health Act asalleged.??????????? 2.Whether the respondent failed to comply with sections 29 CFR 1926.150(e)(1); 29CFR 1926.150(e)(2); 29 CFR 1910.157(d)(3)(i); 29 CFR 1910.252(a)(2)(iv)(c); ifso did it violate section 29 U.S.C. 654(a)(2) of the Act.??????????? 3.Whether the respondent violated 29 U.S.C. 654(a)(1).??????????? 4.If the respondent is found to have violated any or all of the above; whatpenalty or penalties if any should be assessed.EVIDENCE??????????? Therespondent is a corporation organized under the laws of the State of New York.It is engaged in construction business (Tr. 5).[****] The respondent assertsthat many of its materials are manufactured in other States. Its average numberof employees on any single day is about 40.??????????? JohnTomich, a compliance officer with the Occupational Safety and HealthAdministration of the U. S. Department of Labor, (hereinafter referred to asC.O.) visited the respondent? worksite on April 13, 14, 15, 19, 20 and 21 of1976 (Tr. 10). The construction site consisted of a multi-employer worksitewith approximately twelve prime contractors and numerous subcontractors (Tr.11). The location was at the Veterans Administration Hospital in the Bronx, NewYork. Additional buildings were being added to the existing hospital complex.At the time of inspection it is stated that structural steel and reinforcedconcrete construction was about 30 or 35 percent complete. There were about 10buildings with heights of from one to nine stories (Tr. 12).??????????? Duringthe course of the inspection the C.O. observed that there was no alarm systemin any of the structures as required by 29 CFR 1926.150(e)(1) (Tr. 13). Therespondent had five employees working in the area at the time (Tr. 14). Thehazard presented was a delay in summoning help in an emergency where timebecame a crucial factor in such instances as fire or injury. The C.O. thereuponrecommended the issuance of a citation for the violation thereof.??????????? TheC.O. next observed that there was no coding or alarm instructions posted at anyof the structures or floor levels. The C.O. thereupon recommended that acitation be issued for a violation of 29 CFR 1926.150(e)(2) (Tr. 15 17).??????????? Therespondent replied that an alarm system is not its responsibility. It furtherasserted that if an emergency did occur, the respondent could signal to anotheremployer on the site by attracting its attention, who in turn would sound awhistle or horn. It further alleges that since it is engaged in earlyconstruction on a worksite, by following the steel, it would be premature toinstall an alarm system (Tr. 53, 49, 45). The respondent asserts that it is notan electrical company and therefore is not responsible for the installation ofa system which is essentially electrical (Tr. 36).??????????? TheC.O. next observed that at the employer?s trailer and office there was a fireextinguisher with an inspection tag that was outdated. The hazard of thiscondition posed a danger to employees who might be exposed to a fire while inor near the trailer (Tr. 16). It was also alleged that the trailer itself wascombustible (Tr. 16). The C.O. thereupon issued a citation for a violation of29 CFR 1910.157(d)(3)(i). The respondent replied that the extinguisher waspurchased just prior to the time it came on the jobsite in October, 1975, someseven months before the inspection (Tr. 50). It alleges that while the tag mayindicate an expired date, the extinguisher would do its job (Tr. 50 51, 75).??????????? TheC.O. also observed in the close proximity to the trailer that two tanks, one ofoxygen and the other acetylene were standing together with no hoses connectedand posed a hazard. The C.O. recommended that a citation be issued for aviolation of 29 CFR 1910.252(a)(2)(iv)(c). The respondent replied that thetanks were not in storage but ready to be used (Tr. 57). It further states thatbecause of the thefts and other associated problems the connecting hose andgauges were kept in the trailer (Tr. 56 58). The respondent stated if the C.O.had come a day earlier he would have been the tanks being used (Tr. 50). TheC.O. testified that when he apprised the respondent of the violation the tankswere immediately separated (Tr. 17).??????????? TheC.O. next observed that there were two designated entrances where employeesegressed and ingressed. However, the C.O. determined that the workers wereexposed to the hazard of falling objects because there was no protective canopyat the ?E? entrance and insufficient coverage at the ?B\/C? entrance. The hazardwas said to be a recognized hazard in the industry and one which the respondentwas aware of (Tr. 18 20, 25). Upon the basis of the foregoing, the respondentwas cited for a violation of public law 95 596, section 5(a)(1). The Secretaryreferred to the New York State Industrial Code for construction part 23, as evidencethat the hazard is commonly known throughout the construction industry (Tr. 2526). The respondent did not object to this (Tr. 26). The respondent assertsthat it recognized the hazard and called the matter to the attention of thesafety manager of the project (Tr. 47). The respondent further indicated ittold the safety manager that if the matter was not corrected, a complaint wouldbe filed with the Veterans Administration (Tr. 48).OPINION??????????? Theissue of jurisdiction may be quickly disposed of by referring to the pleadingswhere the respondent does not deny that many of the materials used by it aremade outside of New York State. Further the respondent stated that it isengaged in approximately 20 to 40 different jobs at one time (Tr. 41). It is thusreasonable to conclude that the respondent is engaged in commerce crossingstate lines.??????????? Thecitation for failing to have an alarm system was issued to the respondent whenthe C.O. determined that none of the buildings under construction were soequipped. The respondent does not deny the non-existence of an alarm system.The thrust of its defense is that the whistle used by another employer fromoutside the structures was adequate. The explanation submitted that the craneoperator can see through the maze of construction to watch for any signal ofemergency is unrealistic. The respondent also asserts that since it is not inthe electrical business the responsibility for the installation of a system ismisdirected. This logic also fails when considered in the context that theresponsibility for the safety of its employees rests squarely on the employerto provide a safe place for them to work. The arguments for thenon-availability of an alarm system for respondent?s employees areunpersuasive. The respondent at no time filed a waiver for the application ofthe standard. Accordingly, the evidence shows that the respondent did violate29 CFR 1926.150(e)(1). In considering the imposition of a penalty, the factorsset forth in section 17(j) have been considered. In addition, the fact thatrespondent had 5 employees on the jobsite and that the inspection was routineand not as the result of an accident was also weighed. Under the circumstances,a penalty of $60.00 would not be inappropriate??????????? Thecompanion standard for which the respondent was cited is concerned with thefailure to have an alarm code and instructions at the entrances, and phonesthroughout the jobsite. The fact that the standard was not complied with hasnot been denied by the respondent. The necessity for the instructions isobvious if an alarm system is utilized. Having determined that there was noalarm system, it is also determined that there was no alarm code andinstructions. The determination of an appropriate penalty takes intoconsideration all of the factors noted above. Accordingly, since the gravity ofa violation for the standard 29 CFR 1926.150(e)(2) has been determined by theevidence to be low, the citation will be affirmed with no penalty.??????????? Thealleged violation of 29 CFR 1910.157(d)(3)(i) is concerned with an outdatedinspection stamp on a fire extinguished The facts are uncontroverted, theefficiency of the extinguisher becomes questionable. Although the respondentasserts it was purchased some seven or eight months previous, it cannot seek toabsolve itself from responsibility by its own carelessness. The necessity forrelying on a good fire extinguisher in time of emergency can hardly bequestioned. It should not be necessary to remind the respondent that a personusing a fire extinguisher in time of emergency may not get a second chance ifit fails the first time. The respondent?s defense in this regard is mostunpersuasive. In considering the assessment of a penalty all of the evidenceand testimony have been considered together with the criteria and factors setforth in section 17(j). Under the circumstances a penalty of $100.00 would notbe inappropriate.??????????? Thealleged violation of 29 CFR 1910.252(a)(2)(iv)(c) is concerned with the failureto separate fuel-gas or combustible materials. The facts are not controverted.The oxygen and acetylene cylinders were observed together next to therespondent?s trailer. The respondent asserts that the tanks were not in storagebut rather in active use. The evidence fails to support this contention. Therespondent commented that the tanks were in use the previous day (Tr. 52). Thetanks were not ?hooked up? at the time and there was no evidence to show thatthey were not inactive and stored. The relativity of the time factor in theusage of the tanks is a guestion of fact. The respondent corrected theviolation as soon as the C.O. pointed out the danger. A contributing factor tothe hazard was the close proximity of the tanks to the trailer and office. Thepossibility of a serious accident could easily have disastrous effects as aresult. The weight of evidence supports a finding that the standard wasviolated. The factors relative to determining the appropriate penalty have beenconsidered together with the facts showing that respondent immediately compliedby separating the cylinders.??????????? Apenalty of $55.00 as proposed, would not be inappropriate under thecircumstances.??????????? Thefinal matter for resolution is concerned with the alleged violation of publicLaw 91 596, General Duty Clause, Section 5(a)(1). The hazard complained of isthe absence of overhead protection for employees at the designated entrancesfrom falling debris and other materials. The evidence shows that the hazardexisted. The respondent testified that it too recognized the hazard (Tr. 4748). The Secretary introduced evidence to show that the hazard was recognizedthroughout the industry by referring to the New York State Industrial Code Rulefor construction, part 23 (Tr. 25). See also Secretary v. Mid-HudsonAutomatic Sprinkler Co., Inc., Docket No. 76-0576 (October 12, 1976); Secretaryv. John T. Brady and Co., Inc., Docket No. 76 2894; Secretary v. OtisElevator Co., Inc., Docket No. 76 3114. The respondent asserts that itcomplained of the hazard to the construction manager about ten days before theOSHA inspection in April, 1976. The respondent also states that it threatenedto take further action by writing a complaint to the Veterans Administration(Tr. 47, 48). However, the respondent did not reduce to writing its complaintabout the hazard (Tr. 69). The respondent was on the worksite since October,1975 (Tr. 50) some seven months previous to the OSHA inspection. The respondenttestified that it knew the absence of the overhead protection constituted ahazard. However, it still permitted its workers to enter the hazardous area byfailing to take affirmative action. The respondent testified that it hasapproximately 20 40 jobs going at one time and that it visited this jobsite atleast three times each week. Further, the respondent?s witness who is chairmanof the Board is also an attorney. It is difficult to perceive that moreaffirmative steps to abate the hazard could not have been pursued. Afterconsidering the evidence and testimony, there is a sufficient basis for findingthat the Secretary has carried its burden of proof that the respondent hereindid violate the general duty clause. The factors in fixing an appropriatepenalty have been considered in the light of the criteria of 17(j); the priorhistory; gravity of the hazard and good faith. Accordingly, a penalty of$200.00 would not be inappropriate.??????????? Allmotions not previously disposed of are herewith denied.FINDINGS OF FACT??????????? Thecredible evidence and the record as a whole establishes preponderant proof ofthe following facts:??????????? 1.Respondent, Grossman Steel and Aluminum Co., Inc., is engaged in theconstruction business. The materials used and effects on commerce establishesthat it is engaged in interstate commerce.??????????? 2.Respondent did not have an alarm system for fire and other emergencies at theworksite.??????????? 3.Respondent did not have reporting instructions and alarm code reduced towriting, posted at employee entrances and conspicuously posted at phones asrequired.??????????? 4.Respondent failed to have a fire extinguisher properly maintained and which wasin need of recharging.??????????? 5.Respondent failed to properly store oxygen and acetylene cylinders in closeproximity to its work trailer. The cylinders as stored posed a possibility ofexplosion or fire.??????????? 6.The danger of falling objects at or near the entrance to the subject worksitewas a recognized hazard likely to cause death or other serious injuries torespondent?s employees.??????????? 7.The absence of a protective canopy at the designated entrances to the worksiteto shield respondent?s employees from the inherent dangers within, were withinthe scope of respondent?s knowledge.??????????? 8.The use of a construction shield canopy and the hazards it seeks to prevent arecommon knowledge to the industry and to employers such as respondent.??????????? 9.The evidence is sufficient to show respondent?s failure to safeguard itsemployees by failing to provide construction shield canopies.??????????? 10.Respondent made no effort to prevent its employees from entering the area ofthe hazard.CONCLUSIONS OF LAW??????????? 1.The respondent is and was at all times herein, in a business affecting commercewithin the meaning of section 3 (5) of the Occupational Safety and Health Actof 1970.??????????? 2.The Occupational Safety and Health Review Commission has jurisdiction over thesubject matter and parties to this action.??????????? 3.Respondent violated 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR1926.150(e)(1) and (e)(2); 29 CFR 1910.157(d)(3)(i); 29 CFR1910.252(a)(2)(iv)(c). (a)(2)(iv)(c).??????????? 4.Respondent violated 29 U.S.C. 654(a)(1) by failing to furnish its employeesemployment in a place free from recognized hazards in a place likely to causedeath or serious physical harm to them.ORDER??????????? Uponthe basis of the foregoing findings of fact and conclusions of law, and uponthe entire record, it is hereby ORDERED that:??????????? Citationnumber one, items one, two, three and four are affirmed. A penalty of $60.00 isassessed for item one; no penalty is assessed for item two; a penalty of$100.00 is assessed for item three; a penalty of $55.00 is assessed for itemfour. ??????????? Citationnumber two is affirmed. A penalty of $200.00 is assessed.?SEYMOUR FIERJUDGE, OSHRCDated: January 24, ?977?New York, New York?[*] The relevantportions of the Act provide as follows:Sec. 5.(a) Eachemployer?(1) shall furnishto each of his employees employment and a place of employment which are freefrom recognized hazards that are causing or are likely to cause death orserious physical harm to his employees;(2) shall complywith occupational safety and health standards promulgated under this Act.[?] The standardsallegedly violated are 29 C.F.R ? 1926.150(e)(1), requiring that a fire alarmsystem be provided, and 29 C.F.R. ? 1926.252(a)(2)(iv)(c), requiring thatoxygen cylinders in storage be separated from fuel-gas cylinders.[?] Judge Fier alsoaffirmed an alleged violation of 29 C.F.R. ? 1926.150(e)(2) for failure to posta fire alarm code and reporting instructions. The Respondent did not object tothis affirmance in its brief to the Commission. Since no party has takenexception to this aspect of the Judge?s decision, it is not before us on reviewand will not be addressed. See Water Works Installation Corp., 76 OSAHRC61\/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD ?20,780 (No. 4136, 1976); Crane Co.,76 OSAHRC 37\/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD ?20,508 (No. 3336, 1976).[?] The letterdesignations indicate the sections of the building where the entrances werelocated.[**] Although we willnormally accept a Judge?s findings based on credibility determinations, thisrule need not be applied in this case since credibility is not involved. Theunrebutted testimony leads us inescapably to a conclusion contrary to thatreached by the Judge. Champlin Petroleum Co., 77 OSAHRC 137\/A2, 5 BNAOSHC 1601, 1977-78 CCH OSHD ?21,951 (No. 13081, 1977), appeal filed, No.77-2740 (5th Cir. Aug. 26, 1977).[??] The Respondent?ssupervisor at the site had complained to the construction manager at two safetymeetings about the lack of overhead protection. The Respondent had alsoinformed the construction manager that a written complaint would be filed withthe VA. A complaint had not been filed, however, by the time of the inspection10 days later.[??] CommissionerBarnako notes that he would reach the same conclusion by applying the test fordetermining whether employees are exposed to an alleged violation that is setforth in his opinion in Gilles & Cotting, Inc., 76 OSAHRC 30\/D9, 3BNA OSHC 2002, 1975-76 CCH OSHD ?20,448 (No. 504, 1976). Thus, he agrees withthe statement that the Judge?s finding that the Respondent?s employees in factentered the hazardous area has no support in the record. He would further find,however, that there is no evidence of record to establish a ?reasonablepredictability? that the Respondent?s employees would at any time be exposed tothe cited conditions.[??] The Judge?sreasoning in support of his affirmance is not persuasive. Judge Fier determinedthat it would be unrealistic to expect the crane operator to see through the?maze of construction to watch for any signal of emergency.? Assuming that thisconclusion has any basis in the record, it does not affect the result since thetestimony that the hoist operator could be personally contacted within 10seconds is uncontradicted.[***] In vacating thischarge, we rely in particular on the following testimony by Mr. Grossman toconclude that both employees and the fire department would be properlynotified:It was ourunderstanding that unlike using the horn to start and end work, that in case ofemergency, they would go on a multiple blowing of this horn.Now, we workednext to the hospital. The hospital has its own fire department system. It?svisible from the entire site and within the normal realms of notifying people,this alarm system would have done 40 times more than a squawk box.So, as far as wewere concerned for a five man crew working at the same time as the structuralpeople, this was not only an adequate alarm system, it was a terrific alarmsystem.Transcript,p. 53.[???] Judge Fierincorrectly stated that the charge concerned an outdated inspection stamp onthe extinguisher. Nevertheless, in affirming the charge the Judge did find thatthe fire extinguisher was not properly maintained and was in need ofrecharging.[???] A Commissionermay vote simply to avoid an impasse. Public Service Commission of State ofN.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v.United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring inresult).[???] The Courtdistinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied,sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958),because oral argument was statutorily required if a party requested it. 348F.2d 798, n. 14.[****]Denotes transcript page.”