” SECRETARY OF LABOR,Complainant,v.LEE ROY WESTBROOK CONSTRUCTION COMPANY, INC.,Respondent.OSHRC Docket No. 85-0601_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The issue in this case is whether Lee Roy Westbrook ConstructionCompany, Inc. (\”Westbrook\”), a concrete framing subcontractor at amulti-employer construction site, violated 29 C.F.R. ?1926.500(b)(1)[[1\/]] by failing to guard or cover a floor opening eventhough the general contractor at the site had contractual responsibilityfor eliminating the hazard. We conclude that Westbrook failed toestablish the limited multi-employer worksite defense available to somesubcontractors who do not create or control hazards to which theiremployees are exposed. We therefore uphold the decision ofAdministrative Law Judge E. Carter Botkin that found Westbrook inviolation of the standard.Westbrook was working on the construction of an eleven-story officebuilding in Dallas, Texas. Its job was to erect wooden forms to supportmetal \”pan\” containers into which concrete would be poured by thegeneral contractor, Connell Construction Company. After the pouredconcrete had hardened, Westbrook would remove the forms and pans,leaving the concrete in place.On April 17 and 18, 1985, one of the Secretary’s compliance officers,Jeffrey C. Rucker, inspected the jobsite. On April 17, Rucker observedunprotected floor openings on the building’s seventh floor. AlthoughWestbrook had been at work on the seventh floor erecting formwork in thedays prior to the inspection, the compliance officer did not notice anyemployees on the seventh floor that day. He informed the generalcontractor’s superintendent, however, that the openings should be \”takencare of\” before anyone was exposed to them. The general contractor hadexpress responsibility under a written contract with Westbrook forproviding \”all guardrails, ladders and safety facilities to comply withOSHA.\”On April 18, when Rucker returned to the seventh floor, he observed anunprotected elevator shaft opening and two Westbrook employees, MarcoRodrigues and Fermin Valle, exposed to the fall hazard it presented. The original floor opening had been 12 feet long and eight feet wide,but because wooden planks had been placed across that opening, smalleropenings of 36 inches by 26 inches had been created within the largeropening. When the compliance officer observed them, the two Westbrookemployees were pulling up 4-inch by 6-inch pieces of lumber (\”struts\”)being fed to them through the floor openings by other workers on thesixth floor.[[2\/]] The feet of one of the employees, Rodrigues,straddled two of the planks inside the larger opening; the otheremployee, Valle, was at the edge of the larger opening. If eitheremployee had fallen through the opening, he could have suffered seriousphysical injury from a thirteen foot fall to the debris-covered,concrete floor below.The entire floor opening could have been covered by placing 4-inch, by6-inch beams across the opening, laying heavy-duty plywood on the beams,and nailing the plywood to the beams. The lumber needed to cover theopening was readily available at the jobsite, and while the complianceofficer was present at the site of the unprotected seventh floor shaftopening, Westbrook employees began the work of covering it. The jobtook about 30 minutes to complete.After the inspection, Westbrook was issued a citation by the Secretaryalleging that Westbrook had violated section 1926.500(b)(1) by notguarding or covering the seventh floor opening.[[3\/]] The Secretaryalleged that the violation was serious and proposed a $400 penalty.Commission Judge Botkin affirmed the citation and assessed the proposedpenalty. The judge concluded that the Secretary had carried his burdenof proving that Westbrook had violated the cited standard and thatWestbrook had failed to carry its burden of proving the multi-employerconstruction site affirmative defense it had raised. _SeeAnning-Johnson Co._, 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1198, 1975-76 CCHOSHD ? 20,690, pp. 24,783-84 (No. 3694, 1976); _Grossman Steel &Aluminum Corp_., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1189-90, 1975-76 CCHOSHD ? 20,691, pp. 24,791-92 (No. 12775, 1976). Although Judge Botkinfound that Westbrook had established that it did not create the citedhazard, he concluded that Westbrook had failed to make out itsaffirmative defense because the evidence showed that Westbrook\”possessed sufficient control over the violative condition so that ithad a realistic means to rectify the condition in the mannercontemplated by the [cited] standard.\” He further found that there was\”no degree of expertise. . .necessary to abate the hazard [by placingdecking over the floor opening],\” that Westbrook’s employees \”had topossess at least that level of carpentry skill to perform their work\”and that Westbrook’s employees had in fact \”commenced to abate thehazard (by decking) at the time of the inspection.\”The judge acknowledged that the general contractor had contractualresponsibility to abate the hazardous condition, but found that therewas nothing in the contract that precluded Westbrook from abating thecited hazard. He also found that there was no evidence Westbrook wouldhave been prevented from abating the hazard by any union jurisdictionalfactors.On review before us, Westbrook does not dispute the judge’s finding thatthe unguarded floor opening violated the cited standard. Westbrookdefends against the violation by arguing that it has proven themulti-employer construction site affirmative defense. In order toestablish that defense, Westbrook must prove, by a preponderance of theevidence, that:1. It did not create the violative condition; and2. It did not control the violative condition such that it could notrealistically have abated the condition in the manner required by thestandard; and3. (a) It made reasonable alternative efforts to protect its employeesfrom the violative condition; or(b) It did not have, and with the exercise of reasonable diligence couldnot have had, notice that the violative condition was hazardous._See_ _Anning-Johnson_, 4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp.24,783-84; _Grossman Steel_, 4 BNA OSHC at 1189-90, 1975-76 CCH OSHD atpp. 24,791-92.The first element of the defense is not in dispute. Judge Botkin found,and the Secretary apparently concedes, that Westbrook did not create theviolative condition. The judge further found, however, that Westbrookhad failed to prove that it did not control the violative condition. Weagree with the judge’s reasoning and therefore affirm his holding thatWestbrook has failed to establish its affirmative defense.\”Control is established when it is shown that an employer possessed theexpertise and personnel to abate a hazard.\” _Union Boiler_ _Co_., 83OSAHRC 11\/C7, 11 BNA OSHC 1241, 1246, 1983-84 CCH OSHD ? 26,453 at p.33,607 (No. 79-232, 1983), _aff’d_ _mem_., 732 F.2d 151 (4th Cir. 1984). As Judge Botkin properly concluded, the task of decking over the flooropenings required only basic carpentry skills. That Westbrook’semployees possessed those skills is obvious–their principal jobassignment was to erect and dismantle wooden formwork. Further, it wasWestbrook’s own employees, including foreman Johnny Elizondo, who beganto cover the floor opening in the presence of the compliance officer. The material used to cover the opening, the 4-inch by 6-inch lumberthat Westbrook was using for struts along with a piece of plywood, wasreadily available at the jobsite and was produced for use in abating thehazard within minutes after the compliance officer observed Westbrookemployees Rodrigues and Valle working over the unprotected flooropening. Since it possessed the expertise and personnel to abate thehazard, Westbrook has failed to establish its multi-employerconstruction site affirmative defense, and the Secretary’s citation isaffirmed.[[4\/]] _See_ _Dun-Par Engineered Form Co_., 86 OSAHRC 40\/A8,12 BNA OSHC 1962, 1967, 1986-87 CCH OSHD ? 27,651, p. 36,033-3 (No.82-928, 1986).This ruling resolves the issues before us, but there is an additionalmatter that we have decided to address, and that is the failure of theSecretary to cite the general contractor for violating the citedstandard. Our cases recognize that the general contractor on aconstruction site is \”well situated to obtain abatement of hazards,either through its own resources or through its supervisory role withrespect to other contractors.\” _Grossman Steel & Aluminum Corp_., 4 BNAOSHC at 1188, 1975-76 CCH OSHD at p. 24,791. In this case, the generalcontractor, Connell Construction, was expressly bound by contract to\”provide and be responsible for all guardrails, ladders and safetyfacilities to comply with OSHA.\” Thus, even though the OSHA inspectordid not observe Connell Construction’s employees exposed to theunguarded floor opening, the Secretary could have cited Connell for theviolation. _Gil Haugan_, 79 OSAHRC 107\/A2, 7 BNA OSHC 2004, 1979 CCHOSHD ? 24,105 (No. 76-1512, 1979); _Knutson Construction_ _Co_., 76OSAHRC 131\/F3, 4 BNA OSHC 1759, 1976-77 CCH OSHD ? 21,185 (No. 765,1976), _aff’d_, 566 F.2d 596 (8th Cir. 1977).The Secretary’s decision to cite Westbrook and not Connell is consistentwith OSHA’s current official enforcement guidelines for issuingcitations on multi-employer worksites.[[5\/]] The policy, incircumstances such as those here, essentially requires OSHA’s compliancepersonnel to cite a subcontractor whose employees are exposed toconditions that violate the Secretary’s regulations, rather than ageneral contractor who is responsible for those conditions (by contractor by virtue of its supervisory authority) but whose employees were notseen to be exposed. Only if the subcontractor has a valid defense tothe citation does the policy permit the responsible contractor to becited. We acknowledge that policy-making is the prerogative and theresponsibility of the Secretary and that the Commission is anadjudicative rather than a policy-making body. Nevertheless, in thisinstance, we wish to express our concern with the Secretary’s policydecision. We believe that OSHA’s stated policy is at times unfair tosubcontractors and could diminish employee safety on construction sitesby diffusing responsibility for abating hazards, and by fosteringdisrespect for the law and its enforcement.The policy produces manifest unfairness when it results in asubcontractor, such as Westbrook, being required to discharge functionsthat are the explicit contractual responsibility of the generalcontractor.[[6\/]] Our decisions do not permit subcontractors to ignorehazards to which their employees are exposed. But our decisions arealso premised on the assumption that the primary responsibility forabatement of hazards will fall on the creating and controllingcontractors, including in many instances the general contractor. Indeed, in many situations, the most effective way a subcontractor canachieve abatement of a hazard is to complain to the general contractorin the expectation that the general contractor will fulfill itsobligations. _E.g., Lewis & Lambert Metal_ _Contractors_, 84 OSAHRC45\/A2, 12 BNA OSHC 1026, 1030, 1984-85 CCH OSHD ? 27,073, p. 34,899 (No.80-5295-S, 1984). In _Lewis & Lambert_, we noted that the potentialliability of general contractors \”under Commission precedent\” providesan incentive for them to respond to subcontractor complaints. However,a policy that permits general contractors to avoid responsibility simplybecause their own employees are not observed to be exposed to a hazarddiminishes this incentive. Also, holding multiple non-creating andnon-controlling subcontractors liable for abatement of a violation whenan uncited general contractor bears the contractual responsibility wouldbe unduly burdensome and could lead to unnecessary litigation._Anning-Johnson Co. v. OSHRC_, 516 F.2d 1081, 1089-90 (7th Cir. 1975). We strongly urge the Secretary to reconsider her current policy forissuing citations on multi-employer worksites. Moreover, we mustcaution the Secretary that if there is no change in her policies theCommission ultimately may have to contemplate modification of thecompliance guidelines set forth in _Anning-Johnson_ and _Grossman Steel_.We assess a penalty of $50. Only two employees were shown to be exposedto the hazard, and the exposure was relatively brief. Furthermore, asemphasized above, it was the contractual obligation of generalcontractor Connell, and not subcontractor Westbrook, to guard or coverthe cited openings, and Westbrook’s vice-president testified that shehad made repeated requests to the general contractor to carry out itsobligation.[[7\/]]Accordingly, the Secretary’s citation alleging that Westbrook committeda serious violation of section 1926.500(b)(1) is affirmed, and a $50penalty is assessed.FOR THE COMMISSIONRAY H. DARLINGEXECUTIVE SECRETARYDATED: March 22, 1989————————————————————————SECRETARY OF LABOR,Complainant,v.LEE ROY WESTBROOK CONSTRUCTION COMPANY, INC., AND ITS SUCCESSORS,Respondent.OSHRC DOCKET NO. 85-0601_DECISION AND ORDER_Appearances:Robert A. Fitz, Esq., of Dallas, Texasfor the Complainant.John F. McCarthy, Jr., Esq., andMichaela E. Conway, Esq., of Dallas, Texas,for the Respondent.BOTKIN, Judge:This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”the Commission\”) pursuant to Section 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651 _et_ _seq_.(\”the Act\”), contesting a citation issued by the Complainant, theSecretary of Labor (\”the Secretary\”), to the Respondent, Lee RoyWestbrook Construction Company, Inc., and Its Successors (\”Westbrook\”),under authority vested in the Secretary by Section 9(a) of the Act.On April 17 and 18, 1985, an inspection was conducted of a workplacelocated at 3131 Pearl Street, Dallas, Texas, by Jeffrey C. Rucker (\”theCO\”), a compliance officer with the Occupational Safety and HealthAdministration (\”OSHA\”). At that time, a multi-story office buildingwas in the process of being constructed by Connell Construction Co.,Inc. (\”Connell\”), the general contractor. Westbrook was contractuallyengaged by Connell as a subcontractor (concrete forming) to provideconcrete formwork (furnishing and installing pans) in order thatconcrete floors could be poured. As a consequence of the inspection,OSHA issued a citation to Westbrook alleging a serious violation ofSection 5(a)(2) of the Act for which a penalty of $400.00 was sought.Westbrook timely filed a notice of contest on May 30, 1985, commencingthis proceeding under Section 10(c) of the Act. Although simplifiedproceedings were initially in effect, a motion for the application ofconventional rules was later granted. Subsequently, a complaint andanswer were filed with the Commission. A hearing was held in thismatter on November 5, 1985, in Dallas, Texas. No affected employees orrepresentatives of affected employees participated in the proceeding. Westbrook has submitted proposed findings of fact and conclusions of lawwhile both parties have submitted post-hearing briefs. The matter isnow ripe for decision._ISSUE_Whether Westbrook was in serious violation of 29 CFR?1926.500(b)(1),[[1]] and, if so, the appropriate penalty therefore._STIPULATIONS_The parties stipulated that (i) the correct name of Westbrook is Lee RoyWestbrook Construction Company, Inc. (Tr. 11), (ii) Westbrook wasincorporated under the laws of Texas on November 7, 1983, but it did notbegin doing business as a corporate entity until January 1984 (Tr.11-12), (iii) the registered office of Westbrook is located at 2323North Walton Walker Boulevard, Dallas, Texas (Tr. 12), (iv) Westbrook isan employer engaged in a business which affects commerce (Tr. 4-6, 12),(v) jurisdiction of this proceeding is conferred on the Commission bySection 10(c) of the Act (Tr. 4-6), (vi) Westbrook’s total number ofemployees during the calendar year (ending on December 31, 1984)preceding the inspection varied between 30 and 110 (Tr. 8-10), (vii)Westbrook had gross sales in the amount of $1,000,000 for the calendaryear preceding the filing of the citation and complaint in this case(Tr. 15-19), and (viii) the parties also agreed that certain documentscould be received into evidence as exhibits.[[2]]_ISSUE_Whether Westbrook was in serious violation of 29 CFR ?1926.500(b)(1),and, if so, the appropriate penalty therefore, if any._DISCUSSION_It is well-settled that, in order to establish a _prima_ _facie_ casethat an employer has violated Section 5(a)(2) of the Act, the Secretarymust show that (i) the cited standard applies to the facts, (ii) therewas a failure to comply with the cited standard, (iii) employees hadaccess to the violative condition, and (iv) the cited employer eitherknew or, with the exercise of reasonable diligence, could have known ofthe condition.The evidence reveals that the CO[[3]] returned to the jobsite tocontinue the inspection at approximately 7:30 a.m. on April 18, 1985(Tr. 76). It is not disputed that, shortly thereafter, he observedthree workers on the seventh floor engaged in work activities at thelocation of a floor opening which was not guarded by a standard railingand toeboards or a cover. Actual measurements of the entire flooropening revealed an overall dimension of 12 x 8 feet. However, insideand slightly below the level of that floor opening were smaller flooropenings (three),[[4]] each approximately 3 feet x 26 inches. Workerswere engaged in work activities at both the outside perimeter of theentire floor opening and straddling smaller openings insidethereof.[[5]] By measurement, it was 13 feet from the seventh to thesixth floor (Tr. 77-78, 80-84, 87).[[6]]Clearly, the facts in the foregoing paragraph establish that (i) thecited standard is applicable to the facts of this case, and (ii) therewas a failure to comply with that standard.[[7]] Respondent does noturge otherwise.However, it does contend that those workers exposed to the hazard werenot its employees (Respondent’s brief, pages 3, 20-22). I do notagree. Initially, it should be pointed out that Respondent primarilyrelies on the testimony of Frank G. Elizondo[[8]] (\”Elizondo\”), itsgeneral superintendent, to establish its case on this issue. I did notfind his testimony on this issue to be persuasive. I find that otherevidence of a convincing nature supports a finding that those threeworkers (exposed to the hazard of a fall) were Respondent’s employees. First, I note that Elizondo was not at the construction site at the timethe CO conducted that part of the inspection on April 18, 1985, givingrise to the subject citation (Tr. 214, 222-223). On that date, the COwas accompanied on the inspection by Jerry Don Cardwell (\”Cardwell\”),who worked as Connell’s general foreman on this job (Tr. 76-77,194-195).[[9]]According to the CO, Cardwell identified the three workers engaged inwork activities at the floor opening as Respondent’s employees (Tr.76-77, 120, 125-126).[[10]] In other testimony, the CO stated that (i)on request, two[[11]] of those workers identified themselves by name,Marco Rodrigues[[12]] and Fermin Valle,[[13]] and stated their employerto be the Respondent, and (ii) those two workers wrote their names onthe CO’s worksheet (Tr. 80-83, 93, 124, Exhibit R-4). Other evidence ofrecord establishes that both Rodrigues and Valle were employed byRespondent on April 17 and 18, 1985 (Exhibits C-1-A throughC-1-C).[[14]] Based on the foregoing evidence, I am convinced thatthese were Respondent’s employees; to hold otherwise is tantamount tostating that the totality of this evidence amounts to nothing more thansheer coincidence. I find to the contrary. Moreover, compared to thatevidence is Elizondo’s testimony that (i) he definitely does not knowthe individual shown in the foreground of Exhibit C-13,[[15]] and (ii)that individual is not employed by Respondent (Tr. 206-207). In effect,this testimony by Elizondo creates the impression that his memory wouldpermit him to recognize any of Respondent’s employees, ranging in totalnumber from 30 to 100, in a period of time over six months earlier (Tr.216). This should be compared with his other testimony that he isunable to recall how many jobs that he was in charge of supervising (asjob superintendent) at the very same time (Tr. 216-217). Very simply, Ido not find such testimony credible. There is no plausible basis forsuch an inconsistency in memory. In fact, it has the related effect ofraising doubts about other aspects of his testimony. Additionally, theCO’s testimony regarding his conversation with Respondent’s foreman andJohnny Elizondo (\”J. Elizondo\”) at the time of the inspection on April18th went completely unchallenged (Tr. 120-125).[[16]]I also observe that Elizondo testified that the subject floor openings,shown in specified photographic exhibits, were covered up approximately30 minutes after the CO took those photographs. He then stated thatConnell’s employees did that work. After admitting that he was notpresent when the openings were covered, he was asked how he learned whohad done that work. He did not answer that question; significantly, hisanswer was completely unresponsive thereto (Tr. 213-214). Anothersituation which has a bearing on the credibility issue needs to beaddressed at least in a general fashion. The CO’s testimony indicatesthat (i) the only subcontractor who did not appear at the openingconference on April 17th was Respondent, (ii) he was told by W. J.Slovak[[17]] (\”Slovak\”), Connell’s job superintendent, that Respondent’semployees left the site because OSHA arrived, and (iii) during histelephone conversation with Elizondo on April 18th, Elizondo stated thathe had Respondent’s employees pulled off the job because of theunguarded floor openings (Tr. 45, 95-98, 100, 129-132). Also, seeExhibit R-4. The evidence shows that Slovak delegated to Cardwell thetask of notifying subcontractor foremen that their presence was desiredby the CO for the opening conference (Tr. 170-171).[[18]] At thehearing, six months later, Cardwell could not recall if he talked withor contacted Respondent’s representatives on the date in question (April17th) (Tr. 194-196). I can only conclude that his memory should havebeen fresher at the time of the investigation. In his testimony,Elizondo denied that Respondent pulls employees off of jobs when OSHAarrives to inspect, stating that, at the time in question, the employeeswent to another jobsite to unload some tables and bring them to the job(Tr. 215-216). Under close scrutiny, this collective testimony simplydoes not support Respondent’s version of the events. In order to creditRespondent’s version, one must conclude that (again), by coincidence,Respondent’s employees were called away from the jobsite at the sametime Cardwell was informing subcontractors about the openingconference. Moreover, what could motivate the CO to record in hisreport that Elizondo told him they (employees) were removed from the jobbecause of the unguarded floor openings (unless it was said).[[19]] Hecould not have possibly foreseen Elizondo’s testimony; so, it was not anattempt to cause Elizondo to make inconsistent statements. At thistime, I should remark that I found the CO’s testimony to be direct andresponsive. He made a favorable impression as a witness.Finally, there are two other areas to be discussed which relate to afinding on employee exposure. Elizondo testified that (i) material(lumber) is stacked on the sides and moved up (to another floor) inlarge quantities by the use of a crane,[[20]] and (ii) Respondent doesnot customarily raise such material (4×6’s) on an individual basisthrough floor openings such as depicted in the photographic evidence(Tr. 210-211). Slovak agreed that, in most cases, such material ismoved from floor-to-floor by using a crane and slings; however, hestated that, in some cases, Respondent’s crews move them through thefloor (Tr. 181, 189). He was not asked why or under what circumstancesthis work would be performed manually. Obviously, it might be done whentime is of the essence[[21]] and the crane is not immediatelyavailable. It only makes good sense that this type of thing takes placeon an occasional basis. Otherwise, a complete loss of man-hours couldresult. The other area remaining to be discussed involves the subjectof hard hats. A hard hat was brought to the hearing by Elizondo. Heidentified it as an example of hard hats furnished to all employees byRespondent, including its employees at the subject jobsite.[[22]] Hetestified that those workers shown in Exhibits C-11, C-12 and C-13 arenot wearing one of Respondent’s safety hats (Tr. 207-209, 217). It goeswithout question that the red or orange-colored one is not the same (SeeExhibit C-11.). While the other two present a closer question, I donot believe they are the same as the one brought to the hearing (CompareExhibits C-11 through C-13 with C-16 through C-19.). The insignia onthe front of one of those hats, while depicted at an angle, does notappear to be rectangular in shape (See Exhibit C-13.). Attempting toascertain why the hard hats are not the same, would simply lead tospeculation. Suffice it to state that, in this particular case, thisevidence is not of sufficient strength to overcome the credibilityproblems presented by other aspects of Elizondo’s testimony.I also find that proof of the requisite knowledge has been establishedby the evidence. First, I note that the floor opening was easilyvisible. Actual knowledge is not required if the violative condition is\”readily discoverable by sight or sound.\” _Chicago & North_ _WesternTransportation Co_., 77 OSAHRC 30\/E4, 5 BNA OSHC 1121, 1977-78 CCH OSHD? 21,608 (No. 13071, 1977). The CO’S testimony discloses that (i)Respondent’s foreman was working on the 7th floor, and (ii) he arrivedvery shortly after his presence was requested (Tr. 120-122, 164).[[23]] The circumstances indicate that the foreman either knew or, with theexercise of reasonable diligence, could have known about the flooropening and employee exposure to the fall hazard. _See The Mountain__States Telephone and Telegraph Company_, 623 F.2d 155 (10th Cir. 1980).In order to establish that a violation is of a serious character underthe Act, the Secretary must establish that there is a substantialprobability that death or serious physical harm could result from theviolation. I can not find any basis for a meaningful dispute with theCO’s testimony and assessment of this situation (Tr. 87-90, 151-152,156-158, Exhibit R-4). I find that the violative condition was seriouswithin the meaning of Section 17(k) of the Act and Commission precedentthereunder.Respondent has also raised the affirmative defense that, as asub-contractor working at a multi-employer construction site, it neithercreated nor controlled the hazardous condition and it took reasonableefforts under the circumstances to protect its employees from thehazardous condition (Respondent’s Answer, Respondent’s Brief at pages 3and 23-33).[[24]]I find that Respondent did not create the hazardous condition on whichthe citation was based. There can be no genuine disagreement on this. As Respondent points out, the CO’s testimony is in accord therewith(Respondent’s Brief, page 26, Tr. 111). I also find that Connell hadcontractual responsibility for abatement of the hazardouscondition.[[25]] Very briefly, a close study of the language containedin the contract supports such a finding (Exhibit C-3).[[26]] TheContract, as integrated, provides that the general contractor, Connell,has the responsibility for providing guardrails at the worksite whichwill comply with the requirements of OSHA. Surely, this covered theinstant situation. Indeed, Slovak did not disagree with that ingeneral. However, he testified that it was Respondent’s responsibilityto guard floor openings (by decking or guardrails) on the floors onwhich it was performing concrete form work (putting up struts, doing panwork, wrecking out). In substance, he said that it was totallyimpractical to install guardrails around those areas (floor openings)when Respondent is doing that work. It simply does not giveRespondent’s workers sufficient space to perform their work (Tr.173-178, 181, 184-185, 187-189, 191). The overall gist of Slovak’stestimony is that Connell was responsible for guarding floor openingsunless Respondent’s work efforts prevented it. According to the CO,this is essentially what Slovak told him during the inspection (Tr.104-106, 111-113, 115). The CO further testified that Slovakrepresented to him that Respondent’s responsibilities, as stated, aroseout of the requirements of the Contract and other agreements (Tr.105-107). Yet, at the hearing, Slovak admitted that there had neverbeen an agreement with the Respondent that it would be responsible forguarding floor openings on the floors where it was working (Tr. 178). Moreover, he also admitted that it was possible to cover the subjectfloor openings (by decking, (Tr. 191).[[27]] Based on the totalevidence, I find that Connell had the responsibility to abate thehazardous condition.It remains to be resolved whether Respondent possessed sufficientcontrol over the violative condition so that it had a realistic means torectify the condition in the manner contemplated by the standard. Ibelieve that it did. Despite Connell having contractual responsibilityfor the hazardous condition, I find nothing in the Contract which wouldpreclude the Respondent from abating the hazard (providing that itotherwise has the capacity to do so).[[28]] According to the CO, it isnot unusual for such floor openings to be guarded (i) by laying woodenbeams across the openings (spaced every two feet), (ii) layingheavy-duty plywood on top of the beams, and (iii) nailing the plywoodonto the beams (Tr. 90-92). This uncontroverted testimony appearslogical. I find no reason to doubt it. In effect, this would meet therequirement of a floor cover by decking over the openings.[[29]] Thereis absolutely no evidence in this case that Respondent would have beenprevented from abating the hazard due to union jurisdictional factors.Moreover, the task of decking over the floor openings would require onlybasic or general carpentry skills. Certainly, no degree of expertisewas necessary to abate the hazard in that manner. Respondent’semployees had to possess at least that level of carpentry skill toperform their work (building forms, shoring, etc.). In fact,Respondent’s workers, under the direction of J. Elizondo, commenced toabate the hazard (by decking) at the time of the inspection on April 18,1985 (Tr. 124-125, 147-150).[[30]] While the CO did not watch theentire abatement process, he estimated that it would not take longerthan 20 minutes to accomplish (Tr. 92-93, 147-149). Consequently, it isobvious that, had it chosen to do so, Respondent could have met theterms of the standard and abated the hazard with a minimum of both timeand effort.[[31]] I so find.The foregoing finding eliminates any (legal) necessity for going throughthe decisional process to determine whether Respondent failed to takereasonable alternative measures to protect its employees.[[32]]In light of the record and the statutory penalty criteria set forth in?17(j) of the Act, I conclude that a total penalty of $400.00 is bothreasonable and appropriate._FINDINGS OF FACT_All findings of fact relevant and necessary to a determination of thecontested issues have been found specially and appear above. _See_ Rule52(a) of the Federal Rules of Civil Procedure. Proposed findings offact or conclusions of law that are inconsistent with this decision areDENIED._CONCLUSIONS OF LAW_1. At all times material hereto, Respondent was an employer within themeaning of Section 3(5) of the Act, engaged in a business affectingcommerce, and having employees.2. The Commission has jurisdiction over the parties and subject matterof the proceeding.3. Respondent was in serious violation of 29 CFR 1926.500(b)(1)._ORDER_Upon the basis of the foregoing findings of fact, conclusions of law,and the entire record, it is ORDERED that:1. Item 1 of serious citation 1, alleging a serious violation of 29 CFR1926.500(b)(1), is AFFIRMED, and a civil penalty of $400.00 is ASSESSED.E. CARTER BOTKINAdministrative Law JudgeDate: August 8, 1986_APPENDIX__Citation_1[[1]]29 CFR ?1926.500(b)(1): Floor opening(s) were not guarded by standardrailings and toeboards or covers as specified in paragraph (f) of thissection:(a) Stairwell floor opening on 7th floor measuring an overall dimensionof 12′ x 8′ was not effectively guarded or covered as specified in theOSHA standards. Included within the main opening were three individualopenings measuring 3′ x 26\”, located between four sets of 4\” x 6\” woodbraces placed partially over the main opening. Employee(s) standingover the openings, picking up 4\” x 6\” lumber handed up from floor belowwere exposed to serious falling hazard to debris covered concrete floor13′ below. Located on southeast side of building, 3131 Pearl Street,Dallas, Texas._Standard_1-29 CFR ?1926.500(b)(1)(b) _Guarding of floor openings and floor holes_. (1) Floor openingsshall be guarded by a standard railing and toeboards, or cover, asspecified in paragraph (f) of this section. In general, the railingshall be provided on all exposed sides, except at entrances to stairways.————————————————————————FOOTNOTES:[[1\/]] Section 1926.500(b)(1) provides:? 1926.500 _Guardrails, handrails, and covers_.(b) _Guarding of floor openings and floor holes_. (1) Floor openingsshall be guarded by a standard railing and toeboards or cover, asspecified in paragraph (f) of this section. In general, the railingshall be provided on all exposed sides, except at entrances to stairways.[[2\/]] The company did not need to leave the opening uncovered in orderto move the struts from the sixth to the seventh floor. Westbrooknormally moved its materials from one floor to another by crane.[[3\/]] General contractor Connell Construction was not similarly cited,apparently because the compliance officer did not see any employees ofthe general contractor exposed to the hazard and because he had beentold by the general contractor’s superintendent on April 17 that thegeneral contractor did not then have any of its employees working on theseventh floor.[[4\/]] Because we reject the defense on the ground that Westbrook hadcontrol over the cited hazard and therefore could and should havecomplied with the standard’s literal requirements, we need not determinewhether Westbrook took reasonable alternative measures to protect itsemployees.[[5\/]] OSHA Field Operations Manual, Ch. V, Sec. F, reprinted in BNAOcc. Saf. & Hlth Rptr Reference File, pp. 77:2912-13, CCH Emp. Saf. &Hlth Guide, Vol. 3, ?? 7968.245, 7968.250.[[6\/]] In the case before us, the subcontractor has been cited and thegeneral contractor, who bears contractual responsibility, has \”gottenoff scot free.\” This has occurred in spite of the fact that testimonyreveals that Westbrook had repeatedly requested the general contractorto carry out its obligation. In our opinion, enforcement decisions suchas this discourage compliance by the contractor who may be, in manycases, the party best able to expeditiously abate the hazard.[[7\/]] Unfortunately, her requests apparently had little effect inimproving the safety of the workplace. However, this does not detractfrom Westbrook’s good faith efforts to attain safe working conditions. [[1]] The text of the citation and the text of the standard are appendedto this decision.[[2]] Those exhibits were introduced by the Secretary. They wereidentified as C-1-A through C-1-C, C-2-A through C-2-G, and C-3 (Tr.12-14, 20-24).[[3]] The CO’s qualifications can be found in the transcript at pages 33-37.[[4]] These smaller openings can be seen in Exhibits C-12, C-13 and C-14.[[5]] Illustration of the foregoing can be seen in Exhibits C-11, C-12,and C-13.[[6]] Exhibit C-14 is a photograph looking through the floor opening onthe seventh floor down to the sixth floor. On the sixth floor, itshows, among other things, large and small boards, a portion of a steelpan and other debris. There were loose nails on the boards on theseventh floor (where workers stood) and there was a small crack in oneboard (Tr. 85-86, 92).[[7]] In fact, Rosalie Westbrook Davis (\”Davis\”), vice-president ofRespondent, admitted that photographic evidence of the work situationrevealed a hazard (Tr. 235-236). Her work background and job-relatedresponsibilities are set forth in the transcript at pages 224-225,238-239 and 245-246.[[8]] His qualifications can be found in the transcript at pages 203-204and 215. Among other duties, he is charged with responsibility forsafety by the Respondent.[[9]] Cardwell’s work background can be found at pages 194-195 and201-202 of the transcript.[[10]] Although this testimony amounted to hearsay, it was not objectedto by Respondent at the hearing. In fact, Respondent had it repeatedduring its cross-examination of the CO (Tr. 125-126). Moreover,Cardwell so testified at the hearing (Tr. 196-197).[[11]] The CO did not talk with or identify the worker in the red ororange hard hat (Tr. 81, 128 and Exhibit C-11).[[12]] That individual was identified in the photographic exhibits aswearing a blue and white shirt and a hard hat (Tr. 80-82, Exhibits C-11,C-12 and C-13).[[13]] Although his face is hidden from view, this individual can beseen in the photographs marked Exhibits C-12 and C-13 (Tr. 82-84).[[14]] In its response to the Secretary’s request for admissions and hismotion to deem admitted, the Respondent stated that its payroll recordsdo not reflect a specific job site worked by an individual employee. It further stated that its supervisory employees could not state, withspecificity, who worked on their respective crews on the date inquestion (Exhibit C-1-A through C-1-C). Therefore, in effect, Respondentasserted that it was unaware of where (job site) Rodrigues and Vallewere working on the subject dates.[[15]] This is the individual previously identified as Marco Rodrigues(See footnote 12.). This is the only worker whose face is shown in thephotographic evidence (See Exhibits C-11, C-12 and C-13.). Elizondopointed out that the other worker’s face can not be seen (Tr. 212-213,Exhibit C-13).[[16]] Respondent admitted that the Elizondo’s (Johnny and Frank) arebrothers (Tr. 129). It had previously admitted that J. Elizondo was oneof the employees on the date in question (Exhibits C-1-A through C-1-C). Apparently, the foreman was quite close to the area since he appearedin a very short time after his presence was requested. Since hisEnglish was poor, he used J. Elizondo for purposes of dialogue with theCO. Among other things, J. Elizondo stated that these were Respondent’semployees and agreed that they were exposed to a fall hazard through thefloor opening (Tr. 120-125, 164, 258). At the end of the basicinvestigation both the CO and J. Elizondo spoke on the telephone toElizondo (Tr. 129-132). Also, see Exhibits R-4.[[17]] Slovak’s qualifications and work background can be found in thetranscript at pages 169-170.[[18]] It would appear likely that Slovak received his information onthis from Cardwell.[[19]] In some situations, that might be a satisfactory explanation.[[20]] The use of a crane is worked out with Slovak (Tr. 210).[[21]] In this case, a reasonable inference from the evidence indicatesthat Respondent’s workers had lost a day of work from this project onApril 17th.[[22]] Photographs were substituted in the evidence for the actual hardhat (See Exhibits C-16 through C-19.). The hard hat was white. It hasa Texas flag on the front, having rectangular dimensions ofapproximately 2×4 inches, with \”Lee Roy Westbrook Construction Company\”printed in blue lettering thereon. The rear of the hard hat has anAmerican flag depicted thereon. It has approximately the samedimensions (Tr. 207-209).[[23]] Additionally, Rodrigues told the CO that the foreman was aware ofthis situation (Exhibit R-4, pages 1 and 2). While ordinarily an issuemight be raised as to whether this type of evidence is admissible,Respondent introduced it into evidence (Tr. 94, 151).[[24]] Respondent has cited the Seventh Circuit’s decision in_Anning-Johnson Co. v. OSHRC_, 516 F.2d 1081 (7th Cir. 1975). TheCourt limited the application of its decision in that case tonon-serious violations. However, Respondent’s principal reliance iscentered on two landmark decisions issued by the Commission,_Anning-Johnson Co_., (\”Anning-Johnson\”) 76 OSAHRC 54\/A2, 4 BNA OSHC1193, 1975-76 CCH OSHD ? 20,690 (No. 3694 & 4409, 1976) and _GrossmanSteel & Aluminum Corp_. (\”Grossman\”), 76 OSAHRC 54\/D9, 4 BNA OSHC 1185,1975-76 CCH OSHD ? 20,691(No.12775, 1976), together with subsequentCommission decisions bearing on the issues raised therein.[[25]] The Secretary has not even bothered to argue this point in hisMemorandum.[[26]] The contract is composed of Respondent’s two-page bid entitled\”Proposal\” and the bilateral agreement between Connell and Respondententitled \”SUBCONTRACT AGREEMENT\” (\”the Contract\”). By virtue of aprovision of the Contract, the Proposal became merged into the Contract. Among other things, the Contract provides that \”. . .The attachedproposal shall become a part of this contact and if any provisions ofthe contracts are in conflict this proposal shall supercede and shall bebinding. . . .\” I note that almost identical language was set forth inthe Proposal. Surely, the parties intended for the provisions of theProposal to govern in case of a conflict or they would have used someother language than \”this proposal.\” A contract itself would hardly bereferred to as a proposal.[[27]] Surely, the Proposal language of \”safety facilities\” is broadenough to include covers over floor openings by decking. Regardlessthereof, the foregoing admission reveals that Connell could have guardedthis particular violative condition with a cover at that time. Based onSlovak’s own testimony, Connell’s obligation to guard had arisen. Thus,this finding need not rest on testimony by Davis (of a hearsay nature)regarding conversations with Bob Saunders, the project manager andSlovak’s supervisor (Tr. 230-235).[[28]] In fact, paragraph 27 of the Contract contains the contractualmachinery for resolving disputes between the Respondent and Connell. Significantly, in those matters that the parties cannot resolveamicably, this paragraph provides that the Respondent shall followConnell’s written instructions and later pursue its legal remedies. Therefore, this Contract contemplates that Respondent may have toperform certain work for which Connell bears ultimate responsibility.[[29]] Incidentally, I reject Respondent’s contention that abatement wastaking place when the photographs were taken on April 18th (Respondent’sBrief, pages 11-12 and 29-30). Elizondo’s testimony is not of bedrockquality. Moreover, he was not there. Initially, he disclaims anyknowledge and, thereafter, his testimony has, at best, a speculativequality (Tr. 210). Next, Respondent has misread the transcript. TheCO’s statement resides on pages 154-156 of the transcript. At the citedsource (page 125), he was reporting on comments by J. Elizondo andCardwell. Those attributed to J. Elizondo are not helpful toRespondent; but those attributed to Cardwell could be so interpreted. However, I find Cardwell’s actual testimony to be more persuasive (Tr.196-197). Apparently, he was referring to shoring as a support for thenext floor (which the CO has referred to as \”partial decking\”) (Tr.154-156). At any rate, I find the credible evidence does not supportRespondent’s contention.[[30]] Again, Respondent has misread the record (Respondent’s Brief,pages 11-12).[[31]] There is not one scintilla of evidence in this record that thiswould have displeased the general contractor.[[32]] However, at least, one comment should be made to illustrate yetanother credibility problem related to Respondent’s case. While Davistestified at length about the number of times that she had complained toConnell officials (Slovak and Saunders) in regard to guarding flooropenings and the perimeter (much of this arose out of her testimony onthe responsibility issue), she also stated that this got the desiredresults (at times, after several requests) within three or four days(Tr. 230-235, 250). This only needs to be compared with the establishedfact that not one of these floor openings (on any floor) was guardedwhen this inspection commenced on April 17, 1985. Testimony regardingsafety instructions (avoid openings until guarded – Elizondo; and avoidopenings unless using safety equipment – Davis) has been fullyconsidered (Tr. 212; 248). The fact is that none of the foregoing wasactually being done. At best, this can be interpreted to be a result ofa lack of effective communication of safety rules and\/or a lack ofenforcement of said rules.[[1]] The Secretary required abatement of the alleged violation by May21, 1985, and a penalty of $400.00 was proposed.”