“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 673 JULIUS NASSO CONCRETE CORP., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 29, 1974Van Namee,Commissioner:??????????? This matter is before the Commissionon my order directing review of a decision made by Judge David G. Oringer.? The judge concluded that Respondent was inserious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C.651 et. seq.) for having failed to guard the open sides of floors,contrary to the requirements of 29 C.F.R. 1926.500(d)(1).[1]He assessed a penalty of $500.? However,he vacated a portion of the citation on the basis that the 17thfloor being the highest level of a building under construction was a roof andtherefore was outside the scope of the standard.??????????? We have reviewed the record andaffirm except to the extent that the judge vacated the portion of the citationrelating to the 17th floor.?As to that portion, we reverse and remand.? ??????????? Subsequent to his decision herein weconcluded that 29 C.F.R. 1926.500(d)(1)[2]apples to all flat roofs.? S.D.Mullins Co. and Diamond Roofing ?OSHRC Docket Nos. 364 and 459, BNA 1 OSHC1364, CCH Employ. S. & H. Guide para. 16,803 (Rev. Com?n., 1973).? Accordingly, it was error to vacate thatportion of the citation which related to the 17th floor.? ??????????? Unfortunately, we are unable to concludethis case.? Judge Oringer did not reachthe factual issues since he resolved the case as a matter of law. ?The evidence regarding the 17thfloor is in direct conflict.?Complainant?s witnesses testified that plywood decking had been carriedto 75 per cent of the floor?s outside perimeter.? If his testimony is to be believed, thenRespondent?s employees were exposed to the unguarded perimeter.? On the other hand, Respondent?s witnessestestified that the decking was only in the center are of the floor and noneextended to the perimeter.? It thereforeappears that the issue must be resolved on a credibility finding, and that is amatter for the trial judge to decide.? ??????????? Accordingly, the judge?s order isaffirmed except to the extent that it vacates the citation for violation of 29C.F.R. 1926.500(d)(1).? To such an extentthis matter is remanded for such further proceedings as are necessary andconsistent with this decision.MORAN, Chairman,dissenting:??????????? This case arises out of allegationsthat employees of respondent were exposed to safety hazards while they wereengaged in the construction of a building on February 15, 1972.? By my calculations that?s almost two andone-hale years ago! Presumably the building is now complete and the employeesare no longer at work there.? To remandat this point is, in my opinion, worthless.?The record in this case has been sitting around a long time.? Errors or deficiencies on job-safetydecisions ought to be identified and attended to in a timely fashion.? The very nature of the problems which thislaw was enacted to solve seems to me to require that this Commission act ondisputed issues as expeditiously as possible.?To remand at this point will surely mean that it will be more than threeyears after the inspection before this tribunal can resolve the rather simplequestions which arose as a result thereof.??????????? In my opinion, we have a completerecord before us and can quickly resolve the issues in dispute without thisbelated remand.??????????? The Judge bases his decision simplyon the fact that certain open-sided floors of the building were absent theperimeter protection specified in the safety regulations.? We have held consistently that it is notenough to establish that the Act gas been violated.? There must be evidence that employees of theRespondent have been exposed to a hazard as a result of noncompliance with theregulations Secretary v. Hawkins Construction Company, OSAHRC Docket No.949 [1 OSHC 1761] (May 20, 1974); Seretary v. Gilles and Cotting, OSAHRCDocket No. 504 [1 OSHC 1388] (October 9,1973); Secretary v. City WideTuckpointing Service, OSAHRC Docket No. 247[1 OSHC 1232] (May 24, 1973).??????????? Evidence that respondent hademployees working on a 14,00 square foot surface with open sides and was 13 ormore stories about the ground does not show that those employees were exposedto the hazard of falling over the side of the building.? Nor does the mere existence of severalunguarded openings in the said surface prove that employees were exposed to thedanger of falling through those openings.??????????? There must be proof of employee exposure to hazard.? It must be clear and convincing.? And the burden of proving is upon thecomplainant.? Secretary v. EllisonElectric, 1 OSAHRC 547, 553 [1 OSHC 3034] (1972).??????????? It?s clear to me from an examinationof the record that this case that complainant has not sustained its burden ofproof as indicated above. I therefor would dismiss the citation at this pointwithout the need for further action on remand.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 673 JULIUS NASSO CONCRETE CORP., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 23, 1973Oringer,Judge:? This is a proceeding undersection 10(c0 of the Occupational Safety and Health Act of 1970, 29 U.S.C. etseq. (hereinafter referred to as ?the Act?) to review Citations issued by theSecretary of Labor (hereinafter referred to as ?Complainant?) pursuant tosection 9(a), and a proposed assessment of penalties thereon issued pursuant tosection 10(a) of the Act.??????????? The Citations issued on February 29,1972, and Compliant filed on March 31, 1972, alleges that Julius Nasso ConcreteCorp., the employer (hereinafter referred to as ?Respondent?), on or aboutFebruary 15, 1972, at a workplace under its ownership, operation and control,violated two occupational safety and health standards promulgated pursuant tosection 6 of the Act, which were deemed ?Serious? by Complainant and which readas follows:\u00a0Citation No. 129 C.F.R.1926.500(d)(1)-(d) Guarding of open-sided floors, platforms and runways.? (1) Every open-sided flor or platform 6 feetor more above adjacent floor or ground level shall be guarded by a standardrailing, 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 fixedladder.? The railing shall be providedwith a standard tow-board wherever, beneath the open sides, persons can pass,or there is moving machinery, or there is equipment with which fallingmaterials could create a hazard.\u00a0Citation No. 229 C.F.R. 1926.500(b)(1)-(b)Guarding of floor openings and floor holes.?(10 Floor openings shall be guarded by a standard railing and toe boardsor cover, as specified in paragraph (f) of this section.? In general, the railing shall be provided onall exposed sides, except at entrances to stairways.\u00a0??????????? Theviolations as alleged by the Complainant are described as follows:Citation No. 1 29 CFR Sec.1926.500(d)(1) as adopted by 29 CFR sec. 1910.Failure to guardopen-sided floors, with a standard railing-(see (f)(i) of the sec.) orequivalent- 13th-17th floors.\u00a0Citation No. 229 CFR Sec.1925.500(b)(1) ad adopted by 29 CFR Sec. 1910.Failure to guardfloor openings (4 open shafts on the 13th floor) with a standardrailing-see sec (f)(i) of this sec.)and toe boards to cover.\u00a0??????????? Notification of Proposed Penaltieswere issued by the Complainant, on even date,, to wit, February 29, 1972,proposing to assess a penalty of $700 for each of the alleged seriousviolations described above, aggregating total penalties of $1400.? Respondent filed notice of intention tocontest Citations and proposed penalties with Complainant on March 22,1972.??????????? This cause was referred to theOccupational Safety and Health Review Commission for hearing pursuant tosection 10(c) of the Act on June 23, 1972, the undersigned was appointed, andthe within case was assigned to him for hearing pursuant to section 12(e) ofthe Act.??????????? Pursuant to notice, the hearing washeld on July 13 and July 19, 1972 in New York, New York.??????????? Having heard the testimony andobserved the demeanor of the witnesses, and having considered the same,together with the Citations, Notification of Proposed Penalties, Notice ofContest, pleadings, representations, stipulations and admissions of theparties, it is concluded that substantial evidence, on the record considered asa whole, supports the followingFINDINGSOF FACT??????????? 1.?The Respondent, Julius Nasso Concrete Corporation, is a New YorkCorporation engaged in performing concrete work, with its principal officelocated at 142 East 39th Street, New York, New York.? The Respondent was engaged in a business thatwas affecting commerce at the time of the violation (T. 3 & 4).??????????? 2.?At the time of the inspections of the premises of the Respondent?sworksite, the Respondent employed approximately one hundred and two (102)employees at the job site (t. 31).??????????? 3.?The Respondent?s net worth for the year in which the violation tookplace as $4,000,000 (T. 4).??????????? 4.?The prior Citation for a serious violation of 29 CFR 1926.500(b)(1),referred to by the Complainant, during the trial of this action, may not beconsidered in assessing the penalty or in weighing the evidence, in any manner,inasmuch as the Notification of Proposed Penalty was never served upon theRespondent, and therefore did not give the Respondent an opportunity to file aNotice of Contest.? All it amounted towas an incomplete allegation which was never completed nor prosecuted (t. 149,150, 151, 152, 153).??????????? 5.?As a result of inspections conducted at the Respondent?s worksite onFebruary 14 and 15, 1972, the Respondent was issued two (2) Citations forserious violations and in addition thereto received Notification of ProposedPenalties of $700 for each violation, aggregating? $1,400 in total penalties (Citations andNotification of Proposed Penalty) (Complaint and Answer).??????????? 6.?On February 15, 1972, the 17th floor of the job site inquestion herein was not guarded by a standard railing insofar as the open-sidedfloor was concerned, however that constituted the roof of the building.? The Respondent had approximately twenty (20)carpenters and laborers working on that floor (T. 17 & 18).??????????? 7.?On February 15, 1972, the 16th floor of the Respondent?s jobsite had an open-sided floor not guarded by standard railings or any othermeans.? Seven (7) employees of theRespondent were working thereon (T. 18 & 19).??????????? 8.?On February 15, 1972, the 16ht floor of the Respondent?s job site was anopen-sided floor not guarded by standard railings.? The Respondent had two (2) or three (3)workers on that floor (T. 20, 21, 58, 59).??????????? 9.?On February 15, 1972, the 14th floor of the Respondent?sjobsite herein in question did not have its open sides guarded by a standardrailing.? There were approximatelyfifteen (15) employees of the Respondent working on this flor on February 15,1972.??????????? 10.?On February 15, 1972, the Respondent had approximately two (2) employeeson the 13th floor exposed to unguarded open shaftways and theopen-sided floor that was not guarded by standard railings (T.? 22 & 23).??????????? 11.?On the 15th floor, the respondent had canvas around the edgeof the floor for about 75% of the area on February 15, 1972 (T. 110, 113).??????????? 12.?On February 15, 1972, the Respondent had a little better than half thefloor protected by canvas in order to maintain the heat on the floor (T. 79,114, 115).??????????? 13.?There is a substantial probability that death or serious physical harmcould result from a lack of perimeter protection and in particular from thelack of standard railing at the perimeter of an open-sided floor, particularlyat the height of the 13th floor and above, as well as from open andunguarded shaftways or floor holes at a height of 13 floors (T. 25).??????????? 14.?On the 15th day of February, 1972, there were two (2)employees of the Respondent working on the 13th floor of theworksite, which floor had four (4) open shaftways which were floor openingsthat had no cover, nor were they protected by a standard railing with a toeboard (T. 23 & 24).??????????? 15.?The Respondent could have, with reasonable diligence, know of theexistence of the lack of standard railings at the perimeters of theiropen-sided floors and of the floor openings that lacked covers or standardrailings and toe boards (T. 27, 28, 29).??????????? 16.?The penalties proposed to be assessed to the Respondent by theComplainant were inappropriate in the instant case.DISCUSSION??????????? The testimony clearly reveals thatinsofar as the 16th floor is concerned, the Respondent violated thestandard found at 29 CFR 1926.500(d)(1), in that it had no perimeter protectionon that floor.? Insofar as the flor thatwas 75% to 80% surrounded by canvas, while it did not measure up to thestandard, at least 75% of the floor had a lesser chance of exposure that hadthere been nothing at all,?Unquestionably the canvases put around the floor were not for safetypurposes but for keeping the heat in, nevertheless, were of some value andbetter than a total exposure, however, approximately 25% of this floor wasexposed with no perimeter defense at all, an taking the Respondent?stestimony., approximately 50% of the 14th floor.? Insofar as the 17th floor wasconcerned, this in fact, was the roof of the building.? In the case of Secretary of Labor v.Hawkins Construction Company, OSAHRC Docket Nos. 503 and 598, Judge Weinmanheld that the omission of the term ?roof? in the standard herein in question,disclosed a specific intent of the framers of a standard to exclude roofs fromthe scope of such standard.? Iagree.? It is an ancient axiom of the lawthat ambiguities in a document are held against the writer thereof.? The decision of Judge Weinman became a finalorder of the Commission on March 1, 1973.?There are other conflicting decisions on this point, however, this Judgeagrees with the holding in the above referred to and accordingly, insofar asthe 17th floor is concerned, the Secretary failed to sustain theburden of proof of violation inasmuch as this was a roof and was not includedin such a standard.? ??????????? Insofar as the 13th flooris concerned, the Judge is of the opinion that the most credible testimonyconcerning employees on that floor was that of the Compliance Officer.? The Respondent vehemently argues that theOSHA Form 1A is a self-serving declaration.?If that is so, any report kept in the ordinary course of business wouldbe similarly self-serving.? This documentwas not introduced to prove the verity of the allegations of the violation, butto show what the Compliance Officer found on the date in question.? In my opinion while the Compliance Officerwas not as properly prepared as a witness should be in a case containing theseriousness of this one, nevertheless, I found his testimony to be credible,insofar as the number of employees located on the 13th floor on the15th of February 1972.??????????? Insofar as the penalties areconcerned, I find that those penalties proposed to be assessed against thisRespondent are inappropriate.? Insofar asfailure to guard the perimeters are concerned, there is an inference that theSecretary considered prior Citations that never became effective because of hiserror, in arriving at a penalty of $700.?In addition thereto, having found that the 17th floor was nota violation, and that the canvas lowered the exposure on most of the one floorand part of another, an appropriate penalty would be $500.? Insofar as the penalty for the unguardedshaftways or floor openings are concerned, similarly it is my opinion that apenalty of $500 is appropriate, given all the circumstances found herein.? The Judge finds, however, that even if theonly violation of 29 CFR 1926.500(d)(1) found proven, ws that of the 16thfloor, which appears clear and unequivocal in this record, then, and in suchcase, the penalty herewith assessed at $500 would be moderate and appropriatein the premises.? Based on the foregoingconsiderations, the Judge makes the followingCONCLUSIONSOF LAW??????????? 1.?At all times herein mentioned, the Respondent was engaged a businessaffecting commerce within the meaning of section 3(5) of the OccupationalSafety and Health Act of 1970.??????????? 2.?The Respondent was, on the date of the inspection at its worksite hereinconcerned, and at all other times mentioned herein, an employer subject to thesafety and health regulations promulgated by the Secretary of Labor.? ??????????? 3.?The Respondent did not violate that standard found at 29 CFR1926.500(d)(1) insofar as the 17th floor of the worksite isconcerned, as this floor constitutes the roof and does not come within thepurview of the aforementioned standard.??????????? 4.?On the day of the inspection herein concerned, the Respondent violated29 CFR 1925.500(d)(1), insofar as floors thirteen to sixteen are concerned,however, the exposure on the 14th and 15th floors waslimited, as a result of the canvas utilized.??????????? 5.?On the day of the inspection the Respondent violated 29 CFR 1926.500(b)(1),in that certain of its employees were exposed to open shaftways thatconstituted floor holes, on the 13th floor.? ??????????? 6.?The violations of 29 CFR 1926.500(d)(1) and 29 CFR 1926.500(b)(1), are?serious? violations within the purview of the Act.??????????? 7. ?The penalties proposed in the instant casewere inappropriate and are modified to $500 for each violation, totaling in theaggregate, penalties of $1,000.??????????? In view of the foregoing; having duedeliberation to the gravity of the violations, the size of Respondent?sbusiness, the presence or absence of good faith of the Respondent, and itshistory; and good cause appearing therefore, it isORDERED that??????????? 1.?The citation alleging violation of 29 CFR 1926.500(d)(1) is affirmedinsofar as the 16th, 15th, 14th and 13thfloors are concerned.??????????? 2.?The Citation for that standard found at 29 CFR 1926.500(b)(1) isconcerned is hereby affirmed.??????????? 3.?The Citation for serious violation insofar as that standard found at 29CFR 1926.500(b)(1) is concerned is hereby affirmed.??????????? 4.?The penalties proposed for serious violation of the standards abovereferenced to are herewith modified as follows:??????????? (a) The penalty, assessed for theviolation of those parts of Citation No. 1 that were affirmed, is herebyassessed at $500.??????????? (b) The penalty assessed inviolation of Citation No. 2, is herewith assessed at $500.??????????? The total penalties, assessed in theaggregate, amount to $1,000.??????????? So Ordered.\u00a0[1] The judge also found Respondent in serious violationof 29 C.F.R. 1926.500(b)(1) for having failed to guard open shaftways.? He assessed $500.? Review was not directed on this issue, andthe judge?s findings were based on the credibility fo the witnesses. Accordingly,we affirm.\u00a0[2] The standard provides in pertinent part as follows:Every open-sided floor or platform 6 feet or moreabove adjacent floor or ground level shall be guarded by a standard railing orthe equivalent?open on all sides?.”