“Docket No. 85-0601 \u00a0SECRETARY OF LABOR, Complainant, v. LEE ROY WESTBROOK CONSTRUCTION COMPANY, INC., Respondent.OSHRC Docket No. 85-0601DECISIONBefore:\u00a0 BUCKLEY, Chairman, and AREY,Commissioner. BY THE COMMISSION:The issue in this case is whether Lee RoyWestbrook Construction Company, Inc. (\”Westbrook\”), a concrete framingsubcontractor at a multi-employer construction site, violated 29 C.F.R. ?1926.500(b)(1)[[1\/]] by failing to guard or cover a floor opening even though the generalcontractor at the site had contractual responsibility for eliminating the hazard.\u00a0 Weconclude that Westbrook failed to establish the limited multi-employer worksite defenseavailable to some subcontractors who do not create or control hazards to which theiremployees are exposed.\u00a0 We therefore uphold the decision of Administrative Law JudgeE. Carter Botkin that found Westbrook in violation of the standard.Westbrook was working on the construction of aneleven-story office building in Dallas, Texas.\u00a0 Its job was to erect wooden forms tosupport metal \”pan\” containers into which concrete would be poured by thegeneral contractor, Connell Construction Company. After the poured concrete had hardened,Westbrook would remove the forms and pans, leaving the concrete in place.On April 17 and 18, 1985, one of the Secretary’scompliance officers, Jeffrey C. Rucker, inspected the jobsite.\u00a0 On April 17, Ruckerobserved unprotected floor openings on the building’s seventh floor.\u00a0 AlthoughWestbrook had been at work on the seventh floor erecting formwork in the days prior to theinspection, the compliance officer did not notice any employees on the seventh floor thatday.\u00a0 He informed the general contractor’s superintendent, however, that the openingsshould be \”taken care of\” before anyone was exposed to them.\u00a0 The generalcontractor had express responsibility under a written contract with Westbrook forproviding \”all guardrails, ladders and safety facilities to comply with OSHA.\”On April 18, when Rucker returned to the seventhfloor, he observed an unprotected elevator shaft opening and two Westbrook employees,Marco Rodrigues and Fermin Valle, exposed to the fall hazard it presented.\u00a0 Theoriginal floor opening had been 12 feet long and eight feet wide, but because woodenplanks had been placed across that opening, smaller openings of 36 inches by 26 inches hadbeen created within the larger opening.\u00a0 When the compliance officer observed them,the two Westbrook employees 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\/]]\u00a0 The feet of one of the employees, Rodrigues, straddled two of theplanks inside the larger opening; the other employee, Valle, was at the edge of the largeropening.\u00a0 If either employee had fallen through the opening, he could have sufferedserious physical injury from a thirteen foot fall to the debris-covered, concrete floorbelow.The entire floor opening could have been coveredby placing 4-inch, by 6-inch beams across the opening, laying heavy-duty plywood on thebeams, and nailing the plywood to the beams.\u00a0 The lumber needed to cover the openingwas readily available at the jobsite, and while the compliance officer was present at thesite of the unprotected seventh floor shaft opening, Westbrook employees began the work ofcovering it.\u00a0 The job took about 30 minutes to complete.After the inspection, Westbrook was issued a citation by the Secretary alleging thatWestbrook had violated section 1926.500(b)(1) by not guarding or covering the seventhfloor opening.[[3\/]]\u00a0 The Secretary alleged that the violation was serious andproposed a $400 penalty.Commission Judge Botkin affirmed the citationand assessed the proposed penalty.\u00a0 The judge concluded that the Secretary hadcarried his burden of proving that Westbrook had violated the cited standard and thatWestbrook had failed to carry its burden of proving the multi-employer construction siteaffirmative defense it had raised.\u00a0 See Anning-Johnson Co., 76 OSAHRC 54\/A2, 4BNA OSHC 1193, 1198, 1975-76 CCH OSHD ? 20,690, pp. 24,783-84 (No. 3694, 1976); GrossmanSteel & Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1189-90, 1975-76 CCHOSHD ? 20,691, pp. 24,791-92 (No. 12775, 1976).\u00a0 Although Judge Botkin found thatWestbrook had established that it did not create the cited hazard, he concluded thatWestbrook had failed to make out its affirmative defense because the evidence showed thatWestbrook \”possessed sufficient control over the violative condition so that it had arealistic means to rectify the condition in the manner contemplated by the [cited]standard.\”\u00a0 He further found that there was \”no degree of expertise. ..necessary to abate the hazard [by placing decking over the floor opening],\” thatWestbrook’s employees \”had to possess at least that level of carpentry skill toperform their work\” and that Westbrook’s employees had in fact \”commenced toabate the hazard (by decking) at the time of the inspection.\”The judge acknowledged that the generalcontractor had contractual responsibility to abate the hazardous condition, but found thatthere was nothing in the contract that precluded Westbrook from abating the cited hazard.\u00a0 He also found that there was no evidence Westbrook would have been prevented fromabating the hazard by any union jurisdictional factors.On review before us, Westbrook does not disputethe judge’s finding that the unguarded floor opening violated the cited standard.Westbrook defends against the violation by arguing that it has proven the multi-employerconstruction site affirmative defense.\u00a0 In order to establish that defense, Westbrookmust prove, by a preponderance of the evidence, that:1.\u00a0 It did not create the violativecondition; and2.\u00a0 It did not control the violativecondition such that it could not realistically have abated the condition in the mannerrequired by the standard; and3.\u00a0 (a) It made reasonable alternativeefforts to protect its employees from the violative condition; or(b) It did not have, and with the exercise of reasonable diligence could not 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; GrossmanSteel, 4 BNA OSHC at 1189-90, 1975-76 CCH OSHD at pp. 24,791-92.The first element of the defense is not indispute.\u00a0 Judge Botkin found, and the Secretary apparently concedes, that Westbrookdid not create the violative condition.\u00a0 The judge further found, however, thatWestbrook had failed to prove that it did not control the violative condition.\u00a0 Weagree with the judge’s reasoning and therefore affirm his holding that Westbrook hasfailed to establish its affirmative defense.\”Control is established when it is shownthat an employer possessed the expertise and personnel to abate a hazard.\”\u00a0 UnionBoiler Co., 83 OSAHRC 11\/C7, 11 BNA OSHC 1241, 1246, 1983-84 CCH OSHD ? 26,453at p. 33,607 (No. 79-232, 1983), aff’d mem., 732 F.2d 151 (4th Cir. 1984).\u00a0As Judge Botkin properly concluded, the task of decking over the floor openingsrequired only basic carpentry skills.\u00a0 That Westbrook’s employees possessed thoseskills is obvious–their principal job assignment was to erect and dismantle woodenformwork.\u00a0 Further, it was Westbrook’s own employees, including foreman JohnnyElizondo, who began to cover the floor opening in the presence of the compliance officer.\u00a0The material used to cover the opening, the 4-inch by 6-inch lumber that Westbrookwas using for struts along with a piece of plywood, was readily available at the jobsiteand was produced for use in abating the hazard within minutes after the compliance officerobserved Westbrook employees Rodrigues and Valle working over the unprotected flooropening.\u00a0 Since it possessed the expertise and personnel to abate the hazard,Westbrook has failed to establish its multi-employer construction site affirmativedefense, and the Secretary’s citation is affirmed.[[4\/]]\u00a0 See Dun-ParEngineered 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, butthere is an additional matter that we have decided to address, and that is the failure ofthe Secretary to cite the general contractor for violating the cited standard.\u00a0 Ourcases recognize that the general contractor on a construction site is \”well situatedto obtain abatement of hazards, either through its own resources or through itssupervisory role with respect to other contractors.\”\u00a0 Grossman Steel &Aluminum Corp., 4 BNA OSHC at 1188, 1975-76 CCH OSHD at p. 24,791.\u00a0 In this case,the general contractor, Connell Construction, was expressly bound by contract to\”provide and be responsible for all guardrails, ladders and safety facilities tocomply with OSHA.\”\u00a0 Thus, even though the OSHA inspector did not observe ConnellConstruction’s employees exposed to the unguarded floor opening, the Secretary could havecited Connell for the violation. Gil Haugan, 79 OSAHRC 107\/A2, 7 BNA OSHC 2004,1979 CCH OSHD ? 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 andnot Connell is consistent with OSHA’s current official enforcement guidelines for issuingcitations on multi-employer worksites.[[5\/]]\u00a0 The policy, in circumstances such asthose here, essentially requires OSHA’s compliance personnel to cite a subcontractor whoseemployees are exposed to conditions that violate the Secretary’s regulations, rather thana general contractor who is responsible for those conditions (by contract or by virtue ofits supervisory authority) but whose employees were not seen to be exposed.\u00a0 Only ifthe subcontractor has a valid defense to the citation does the policy permit theresponsible contractor to be cited.\u00a0 We acknowledge that policy-making is theprerogative and the responsibility of the Secretary and that the Commission is anadjudicative rather than a policy-making body.\u00a0 Nevertheless, in this instance, wewish to express our concern with the Secretary’s policy decision.\u00a0 We believe thatOSHA’s stated policy is at times unfair to subcontractors and could diminish employeesafety on construction sites by diffusing responsibility for abating hazards, and byfostering disrespect for the law and its enforcement.The policy produces manifest unfairness when it results in a subcontractor, such asWestbrook, being required to discharge functions that are the explicit contractualresponsibility of the general contractor.[[6\/]]\u00a0 Our decisions do not permitsubcontractors to ignore hazards to which their employees are exposed.\u00a0 But ourdecisions are also premised on the assumption that the primary responsibility forabatement of hazards will fall on the creating and controlling contractors, including inmany instances the general contractor.\u00a0 Indeed, in many situations, the mosteffective way a subcontractor can achieve abatement of a hazard is to complain to thegeneral contractor in the expectation that the general contractor will fulfill itsobligations.\u00a0 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 potential liability of generalcontractors \”under Commission precedent\” provides an incentive for them torespond to subcontractor complaints.\u00a0 However, a policy that permits generalcontractors to avoid responsibility simply because their own employees are not observed tobe exposed to a hazard diminishes this incentive.\u00a0 Also, holding multiplenon-creating and non-controlling subcontractors liable for abatement of a violation whenan uncited general contractor bears the contractual responsibility would be undulyburdensome and could lead to unnecessary litigation. Anning-Johnson Co. v. OSHRC,516 F.2d 1081, 1089-90 (7th Cir. 1975).\u00a0 We strongly urge the Secretary to reconsiderher current policy for issuing citations on multi-employer worksites.\u00a0 Moreover, wemust caution the Secretary that if there is no change in her policies the Commissionultimately may have to contemplate modification of the compliance guidelines set forth in Anning-Johnsonand Grossman Steel.We assess a penalty of $50.\u00a0 Only twoemployees were shown to be exposed to the hazard, and the exposure was relatively brief.Furthermore, as emphasized above, it was the contractual obligation of general contractorConnell, and not subcontractor Westbrook, to guard or cover the cited openings, andWestbrook’s vice-president testified that she had made repeated requests to the generalcontractor to carry out its obligation.[[7\/]]Accordingly, the Secretary’s citation alleging that Westbrook committed a seriousviolation of section 1926.500(b)(1) is affirmed, and a $50 penalty is assessed.FOR THE COMMISSIONRAY H. DARLING EXECUTIVE SECRETARYDATED: March 22, 1989 SECRETARY OF LABOR, Complainant, v. LEE ROY WESTBROOK CONSTRUCTION COMPANY, INC.,AND ITS SUCCESSORS, Respondent.OSHRC DOCKET NO. 85-0601DECISION AND ORDERAppearances:Robert A. Fitz, Esq., of Dallas, Texas for 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 Health Review Commission(\”the Commission\”) pursuant to Section 10 of the Occupational Safety and HealthAct of 1970, 29 U.S.C. 651 et seq. (\”the Act\”), contesting acitation issued by the Complainant, the Secretary of Labor (\”the Secretary\”), tothe Respondent, Lee Roy Westbrook Construction Company, Inc., and Its Successors(\”Westbrook\”), under authority vested in the Secretary by Section 9(a) of theAct.On April 17 and 18, 1985, an inspection was conducted of a workplace located at 3131 PearlStreet, Dallas, Texas, by Jeffrey C. Rucker (\”the CO\”), a compliance officerwith the Occupational Safety and Health Administration (\”OSHA\”).\u00a0 At thattime, a multi-story office building was in the process of being constructed by ConnellConstruction Co., Inc. (\”Connell\”), the general contractor.\u00a0 Westbrook wascontractually engaged by Connell as a subcontractor (concrete forming) to provide concreteformwork (furnishing and installing pans) in order that concrete floors could be poured.\u00a0 As a consequence of the inspection, OSHA issued a citation to Westbrook alleging aserious violation of Section 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, commencing this proceedingunder Section 10(c) of the Act.\u00a0 Although simplified proceedings were initially ineffect, a motion for the application of conventional rules was later granted.Subsequently, a complaint and answer were filed with the Commission.\u00a0 A hearing washeld in this matter on November 5, 1985, in Dallas, Texas.\u00a0 No affected employees orrepresentatives of affected employees participated in the proceeding.\u00a0 Westbrook hassubmitted proposed findings of fact and conclusions of law while both parties havesubmitted post-hearing briefs.\u00a0 The matter is now ripe for decision.ISSUEWhether Westbrook was in serious violation of 29CFR ?1926.500(b)(1),[[1]] and, if so, the appropriate penalty therefore. STIPULATIONSThe parties stipulated that (i) the correct nameof Westbrook is Lee Roy Westbrook Construction Company, Inc. (Tr. 11), (ii) Westbrook wasincorporated under the laws of Texas on November 7, 1983, but it did not begin doingbusiness as a corporate entity until January 1984 (Tr. 11-12), (iii) the registered officeof Westbrook is located at 2323 North Walton Walker Boulevard, Dallas, Texas (Tr. 12),(iv) Westbrook is an employer engaged in a business which affects commerce (Tr. 4-6, 12),(v) jurisdiction of this proceeding is conferred on the Commission by Section 10(c) of theAct (Tr. 4-6), (vi) Westbrook’s total number of employees during the calendar year (endingon 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 calendar year preceding thefiling of the citation and complaint in this case (Tr. 15-19), and (viii) the parties alsoagreed that certain documents could be received into evidence as exhibits.[[2]]ISSUEWhether Westbrook was in serious violation of 29CFR ?1926.500(b)(1), and, if so, the appropriate penalty therefore, if any. DISCUSSIONIt is well-settled that, in order to establish aprima facie case that an employer has violated Section 5(a)(2) of the Act,the Secretary must show that (i) the cited standard applies to the facts, (ii) there was afailure to comply with the cited standard, (iii) employees had access to the violativecondition, and (iv) the cited employer either knew or, with the exercise of reasonablediligence, could have known of the condition.The evidence reveals that the CO[[3]] returnedto the jobsite to continue the inspection at approximately 7:30 a.m. on April 18, 1985(Tr. 76).\u00a0 It is not disputed that, shortly thereafter, he observed three workers onthe seventh floor engaged in work activities at the location of a floor opening which wasnot guarded by a standard railing and toeboards or a cover.\u00a0 Actual measurements ofthe entire floor opening revealed an overall dimension of 12 x 8 feet.\u00a0 However,inside and slightly below the level of that floor opening were smaller floor openings(three),[[4]] each approximately 3 feet x 26 inches.\u00a0 Workers were engaged in workactivities at both the outside perimeter of the entire floor opening and straddlingsmaller openings inside thereof.[[5]] By measurement, it was 13 feet from the seventh tothe sixth floor (Tr. 77-78, 80-84, 87).[[6]]Clearly, the facts in the foregoing paragraphestablish that (i) the cited standard is applicable to the facts of this case, and (ii)there was a failure to comply with that standard.[[7]]\u00a0 Respondent does not urgeotherwise.However, it does contend that those workersexposed to the hazard were not its employees (Respondent’s brief, pages 3, 20-22).\u00a0 Ido not agree.\u00a0 Initially, it should be pointed out that Respondent primarily relieson the testimony of Frank G. Elizondo[[8]] (\”Elizondo\”), its generalsuperintendent, to establish its case on this issue.\u00a0 I did not find his testimony onthis issue to be persuasive. I find that other evidence of a convincing nature supports afinding that those three workers (exposed to the hazard of a fall) were Respondent’semployees.\u00a0 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, giving rise to the subjectcitation (Tr. 214, 222-223).\u00a0 On that date, the CO was accompanied on the inspectionby Jerry Don Cardwell (\”Cardwell\”), who worked as Connell’s general foreman onthis job (Tr. 76-77, 194-195).[[9]]According to the CO, Cardwell identified the three workers engaged in work activities atthe floor opening as Respondent’s employees (Tr. 76-77, 120, 125-126).[[10]]\u00a0 Inother testimony, the CO stated that (i) on request, two[[11]] of those workers identifiedthemselves by name, Marco Rodrigues[[12]] and Fermin Valle,[[13]] and stated theiremployer to be the Respondent, and (ii) those two workers wrote their names on the CO’sworksheet (Tr. 80-83, 93, 124, Exhibit R-4).\u00a0 Other evidence of record establishesthat both Rodrigues and Valle were employed by Respondent on April 17 and 18, 1985(Exhibits C-1-A through C-1-C).[[14]]\u00a0 Based on the foregoing evidence, I amconvinced that these were Respondent’s employees; to hold otherwise is tantamount tostating that the totality of this evidence amounts to nothing more than sheer coincidence.\u00a0 I find to the contrary. Moreover, compared to that evidence is Elizondo’s testimonythat (i) he definitely does not know the individual shown in the foreground of ExhibitC-13,[[15]] and (ii) that individual is not employed by Respondent (Tr. 206-207).\u00a0 Ineffect, this testimony by Elizondo creates the impression that his memory would permit himto recognize any of Respondent’s employees, ranging in total number from 30 to 100, in aperiod of time over six months earlier (Tr. 216).\u00a0 This should be compared with hisother testimony that he is unable to recall how many jobs that he was in charge ofsupervising (as job superintendent) at the very same time (Tr. 216-217).\u00a0 Verysimply, I do not find such testimony credible.\u00a0 There is no plausible basis for suchan inconsistency in memory.\u00a0 In fact, it has the related effect of raising doubtsabout other aspects of his testimony.\u00a0 Additionally, the CO’s testimony regarding hisconversation with Respondent’s foreman and Johnny Elizondo (\”J. Elizondo\”) atthe time of the inspection on April 18th went completely unchallenged (Tr. 120-125).[[16]]I also observe that Elizondo testified that thesubject floor openings, shown in specified photographic exhibits, were covered upapproximately 30 minutes after the CO took those photographs.\u00a0 He then stated thatConnell’s employees did that work.\u00a0 After admitting that he was not present when theopenings were covered, he was asked how he learned who had done that work.\u00a0 He didnot answer that question; significantly, his answer was completely unresponsive thereto(Tr. 213-214).\u00a0 Another situation which has a bearing on the credibility issue needsto be addressed at least in a general fashion.\u00a0 The CO’s testimony indicates that (i)the only subcontractor who did not appear at the opening conference on April 17th wasRespondent, (ii) he was told by W. J. Slovak[[17]] (\”Slovak\”), Connell’s jobsuperintendent, that Respondent’s employees left the site because OSHA arrived, and (iii)during his telephone conversation with Elizondo on April 18th, Elizondo stated that he hadRespondent’s employees pulled off the job because of the unguarded floor openings (Tr. 45,95-98, 100, 129-132).\u00a0 Also, see Exhibit R-4.\u00a0 The evidence shows that Slovakdelegated to Cardwell the task of notifying subcontractor foremen that their presence wasdesired by the CO for the opening conference (Tr. 170-171).[[18]]\u00a0 At the hearing,six months later, Cardwell could not recall if he talked with or contacted Respondent’srepresentatives on the date in question (April 17th) (Tr. 194-196).\u00a0 I can onlyconclude that his memory should have been fresher at the time of the investigation. \u00a0In his testimony, Elizondo denied that Respondent pulls employees off of jobs when OSHAarrives to inspect, stating that, at the time in question, the employees went to anotherjobsite to unload some tables and bring them to the job (Tr. 215-216).\u00a0 Under closescrutiny, this collective testimony simply does not support Respondent’s version of theevents.\u00a0 In order to credit Respondent’s version, one must conclude that (again), bycoincidence, Respondent’s employees were called away from the jobsite at the same timeCardwell was informing subcontractors about the opening conference.\u00a0 Moreover, whatcould motivate the CO to record in his report that Elizondo told him they (employees) wereremoved from the job because of the unguarded floor openings (unless it was said).[[19]]\u00a0He could not have possibly foreseen Elizondo’s testimony; so, it was not an attemptto cause Elizondo to make inconsistent statements.\u00a0 At this time, I should remarkthat I found the CO’s testimony to be direct and responsive. He made a favorableimpression as a witness.Finally, there are two other areas to bediscussed which relate to a finding on employee exposure.\u00a0 Elizondo testified that(i) material (lumber) is stacked on the sides and moved up (to another floor) in largequantities by the use of a crane,[[20]] and (ii) Respondent does not customarily raisesuch material (4×6’s) on an individual basis through floor openings such as depicted inthe photographic evidence (Tr. 210-211).\u00a0 Slovak agreed that, in most cases, suchmaterial is moved from floor-to-floor by using a crane and slings; however, he statedthat, in some cases, Respondent’s crews move them through the floor (Tr. 181, 189). \u00a0He was not asked why or under what circumstances this work would be performedmanually.\u00a0 Obviously, it might be done when time is of the essence[[21]] and thecrane is not immediately available.\u00a0 It only makes good sense that this type of thingtakes place on an occasional basis. Otherwise, a complete loss of man-hours could result.\u00a0The other area remaining to be discussed involves the subject of hard hats.\u00a0 Ahard hat was brought to the hearing by Elizondo.\u00a0 He identified it as an example ofhard hats furnished to all employees by Respondent, including its employees at the subjectjobsite.[[22]]\u00a0 He testified that those workers shown in Exhibits C-11, C-12 and C-13are not wearing one of Respondent’s safety hats (Tr. 207-209, 217).\u00a0 It goes withoutquestion that the red or orange-colored one is not the same (See Exhibit C-11.). \u00a0While the other two present a closer question, I do not believe they are the same as theone brought to the hearing (Compare Exhibits C-11 through C-13 with C-16 throughC-19.).\u00a0 The insignia on the front of one of those hats, while depicted at an angle,does not appear to be rectangular in shape (See Exhibit C-13.).\u00a0 Attempting toascertain why the hard hats are not the same, would simply lead to speculation.\u00a0Suffice it to state that, in this particular case, this evidence is not ofsufficient strength to overcome the credibility problems presented by other aspects ofElizondo’s testimony.I also find that proof of the requisiteknowledge has been established by the evidence.\u00a0 First, I note that the floor openingwas easily visible.\u00a0 Actual knowledge is not required if the violative condition is\”readily discoverable by sight or sound.\”\u00a0 Chicago & North WesternTransportation Co., 77 OSAHRC 30\/E4, 5 BNA OSHC 1121, 1977-78 CCH OSHD ? 21,608 (No.13071, 1977).\u00a0 The CO’S testimony discloses that (i) Respondent’s foreman was workingon the 7th floor, and (ii) he arrived very shortly after his presence was requested (Tr.120-122, 164).[[23]]\u00a0 The circumstances indicate that the foreman either knew or,with the exercise of reasonable diligence, could have known about the floor opening andemployee exposure to the fall hazard.\u00a0 See The Mountain States Telephoneand Telegraph Company, 623 F.2d 155 (10th Cir. 1980).In order to establish that a violation is of a serious character under the Act, theSecretary must establish that there is a substantial probability that death or seriousphysical harm could result from the violation.\u00a0 I can not find any basis for ameaningful dispute with the CO’s testimony and assessment of this situation (Tr. 87-90,151-152, 156-158, Exhibit R-4).\u00a0 I find that the violative condition was seriouswithin the meaning of Section 17(k) of the Act and Commission precedent thereunder.Respondent has also raised the affirmativedefense that, as a sub-contractor working at a multi-employer construction site, itneither created nor controlled the hazardous condition and it took reasonable effortsunder the circumstances to protect its employees from the hazardous condition(Respondent’s Answer, Respondent’s Brief at pages 3 and 23-33).[[24]]I find that Respondent did not create the hazardous condition on which the citation wasbased.\u00a0 There can be no genuine disagreement on this.\u00a0 As Respondent points out,the CO’s testimony is in accord therewith (Respondent’s Brief, page 26, Tr. 111). I alsofind that Connell had contractual responsibility for abatement of the hazardouscondition.[[25]]\u00a0 Very briefly, a close study of the language contained in thecontract supports such a finding (Exhibit C-3).[[26]]\u00a0 The Contract, as integrated,provides that the general contractor, Connell, has the responsibility for providingguardrails at the worksite which will comply with the requirements of OSHA.\u00a0 Surely,this covered the instant situation.\u00a0 Indeed, Slovak did not disagree with that ingeneral.\u00a0 However, he testified that it was Respondent’s responsibility to guardfloor openings (by decking or guardrails) on the floors on which it was performingconcrete form work (putting up struts, doing pan work, wrecking out).\u00a0 In substance,he said that it was totally impractical to install guardrails around those areas (flooropenings) when Respondent is doing that work.\u00a0 It simply does not give Respondent’sworkers sufficient space to perform their work (Tr. 173-178, 181, 184-185, 187-189, 191).\u00a0The overall gist of Slovak’s testimony is that Connell was responsible for guardingfloor openings unless Respondent’s work efforts prevented it.\u00a0 According to the CO,this is essentially what Slovak told him during the inspection (Tr. 104-106, 111-113,115).\u00a0 The CO further testified that Slovak represented to him that Respondent’sresponsibilities, as stated, arose out of the requirements of the Contract and otheragreements (Tr. 105-107).\u00a0 Yet, at the hearing, Slovak admitted that there had neverbeen an agreement with the Respondent that it would be responsible for guarding flooropenings on the floors where it was working (Tr. 178).\u00a0 Moreover, he also admittedthat it was possible to cover the subject floor openings (by decking, (Tr. 191).[[27]]\u00a0 Based on the total evidence, I find that Connell had the responsibility to abatethe hazardous condition.It remains to be resolved whether Respondentpossessed sufficient control over the violative condition so that it had a realistic meansto rectify the condition in the manner contemplated by the standard.\u00a0 I believe thatit did.\u00a0 Despite Connell having contractual responsibility for the hazardouscondition, I find nothing in the Contract which would preclude the Respondent from abatingthe hazard (providing that it otherwise has the capacity to do so).[[28]]\u00a0 Accordingto the CO, it is not unusual for such floor openings to be guarded (i) by laying woodenbeams across the openings (spaced every two feet), (ii) laying heavy-duty plywood on topof the beams, and (iii) nailing the plywood onto the beams (Tr. 90-92).\u00a0 Thisuncontroverted testimony appears logical.\u00a0 I find no reason to doubt it.\u00a0 Ineffect, this would meet the requirement of a floor cover by decking over theopenings.[[29]]\u00a0 There is absolutely no evidence in this case that Respondent wouldhave been prevented from abating the hazard due to union jurisdictional factors. Moreover,the task of decking over the floor openings would require only basic or general carpentryskills.\u00a0 Certainly, no degree of expertise was necessary to abate the hazard in thatmanner.\u00a0 Respondent’s employees had to possess at least that level of carpentry skillto perform their work (building forms, shoring, etc.).\u00a0 In fact, Respondent’sworkers, under the direction of J. Elizondo, commenced to abate the hazard (by decking) atthe time of the inspection on April 18, 1985 (Tr. 124-125, 147-150).[[30]]\u00a0 While theCO did not watch the entire abatement process, he estimated that it would not take longerthan 20 minutes to accomplish (Tr. 92-93, 147-149).\u00a0 Consequently, it is obviousthat, had it chosen to do so, Respondent could have met the terms of the standard andabated the hazard with a minimum of both time and effort.[[31]]\u00a0 I so find.The foregoing finding eliminates any (legal) necessity for going through the decisionalprocess to determine whether Respondent failed to take reasonable alternative measures toprotect its employees.[[32]]In light of the record and the statutory penaltycriteria set forth in ?17(j) of the Act, I conclude that a total penalty of $400.00 isboth reasonable and appropriate.FINDINGS OF FACTAll findings of fact relevant and necessary to adetermination of the contested issues have been found specially and appear above. SeeRule 52(a) of the Federal Rules of Civil Procedure.\u00a0 Proposed findings of fact orconclusions of law that are inconsistent with this decision are DENIED.CONCLUSIONS OF LAW1.\u00a0 At all times material hereto,Respondent was an employer within the meaning of Section 3(5) of the Act, engaged in abusiness affecting commerce, and having employees.2.\u00a0 The Commission has jurisdiction overthe parties and subject matter of the proceeding.3.\u00a0 Respondent was in serious violation of 29 CFR 1926.500(b)(1). ORDERUpon the basis of the foregoing findings offact, conclusions of law, and the entire record, it is ORDERED that:1.\u00a0 Item 1 of serious citation 1, alleginga serious violation of 29 CFR 1926.500(b)(1), is AFFIRMED, and a civil penalty of $400.00is ASSESSED.E. CARTER BOTKIN Administrative Law JudgeDate:\u00a0 August 8, 1986APPENDIX Citation1[[1]]29 CFR ?1926.500(b)(1):\u00a0 Floor opening(s) were not guarded by standard railings andtoeboards or covers as specified in paragraph (f) of this section:(a) Stairwell floor opening on 7th floormeasuring an overall dimension of 12′ x 8′ was not effectively guarded or covered asspecified in the OSHA standards.\u00a0 Included within the main opening were threeindividual openings measuring 3′ x 26\”, located between four sets of 4\” x6\” wood braces placed partially over the main opening.\u00a0 Employee(s) standingover the openings, picking up 4\” x 6\” lumber handed up from floor below wereexposed to serious falling hazard to debris covered concrete floor 13′ below. Located onsoutheast side of building, 3131 Pearl Street, Dallas, Texas. Standard1-29 CFR ?1926.500(b)(1)(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guardedby a standard railing and toeboards, or cover, as specified in paragraph (f) of thissection.\u00a0 In general, the railing shall be provided on all exposed sides, except atentrances to stairways.FOOTNOTES: [[1\/]] Section 1926.500(b)(1) provides:? 1926.500 Guardrails, handrails, and covers.(b) Guarding of floor openings and floor holes.\u00a0 (1) Floor openings shall beguarded by a standard railing and toeboards or cover, as specified in paragraph (f) ofthis section.\u00a0 In general, the railing shall be provided on all exposed sides, exceptat entrances to stairways.[[2\/]] The company did not need to leave theopening uncovered in order to move the struts from the sixth to the seventh floor.Westbrook normally moved its materials from one floor to another by crane.[[3\/]] General contractor Connell Constructionwas not similarly cited, apparently because the compliance officer did not see anyemployees of the general contractor exposed to the hazard and because he had been told bythe general contractor’s superintendent on April 17 that the general contractor did notthen have any of its employees working on the seventh floor.[[4\/]] Because we reject the defense on theground that Westbrook had control over the cited hazard and therefore could and shouldhave complied with the standard’s literal requirements, we need not determine whetherWestbrook took reasonable alternative measures to protect its employees.[[5\/]] OSHA Field Operations Manual, Ch. V, Sec.F, reprinted in BNA Occ. 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 subcontractorhas been cited and the general contractor, who bears contractual responsibility, has\”gotten off scot free.\”\u00a0 This has occurred in spite of the fact thattestimony reveals that Westbrook had repeatedly requested the general contractor to carryout its obligation.\u00a0 In our opinion, enforcement decisions such as this discouragecompliance by the contractor who may be, in many cases, the party best able toexpeditiously abate the hazard.[[7\/]] Unfortunately, her requests apparentlyhad little effect in improving the safety of the workplace.\u00a0 However, this does notdetract from Westbrook’s good faith efforts to attain safe working conditions.\u00a0[[1]] The text of the citation and the text ofthe standard are appended to this decision.[[2]] Those exhibits were introduced by theSecretary.\u00a0 They were identified 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 inthe transcript at pages 33-37.[[4]] These smaller openings can be seen inExhibits C-12, C-13 and C-14. [[5]] Illustration of the foregoing can be seenin Exhibits C-11, C-12, and C-13.[[6]] Exhibit C-14 is a photograph lookingthrough the floor opening on the seventh floor down to the sixth floor.\u00a0 On the sixthfloor, it shows, among other things, large and small boards, a portion of a steel pan andother debris.\u00a0 There were loose nails on the boards on the seventh floor (whereworkers stood) and there was a small crack in one board (Tr. 85-86, 92).[[7]] In fact, Rosalie Westbrook Davis(\”Davis\”), vice-president of Respondent, admitted that photographic evidence ofthe work situation revealed a hazard (Tr. 235-236).\u00a0 Her work background andjob-related responsibilities are set forth in the transcript at pages 224-225, 238-239 and245-246.[[8]] His qualifications can be found in thetranscript at pages 203-204 and 215.\u00a0 Among other duties, he is charged withresponsibility for safety by the Respondent.[[9]] Cardwell’s work background can be found atpages 194-195 and 201-202 of the transcript.[[10]] Although this testimony amounted tohearsay, it was not objected to by Respondent at the hearing.\u00a0 In fact, Respondenthad it repeated during its cross-examination of the CO (Tr. 125-126).\u00a0 Moreover,Cardwell so testified at the hearing (Tr. 196-197).[[11]] The CO did not talk with or identify theworker in the red or orange hard hat (Tr. 81, 128 and Exhibit C-11).[[12]] That individual was identified in thephotographic exhibits as wearing 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 be seen in the photographs marked Exhibits C-12 and C-13 (Tr. 82-84).[[14]] In its response to the Secretary’srequest for admissions and his motion to deem admitted, the Respondent stated that itspayroll records do not reflect a specific job site worked by an individual employee.\u00a0 It further stated that its supervisory employees could not state, with specificity,who worked on their respective crews on the date in question (Exhibit C-1-A throughC-1-C). Therefore, in effect, Respondent asserted that it was unaware of where (job site)Rodrigues and Valle were working on the subject dates.[[15]] This is the individual previouslyidentified as Marco Rodrigues (See footnote 12.).\u00a0 This is the only worker whose faceis shown in the photographic evidence (See Exhibits C-11, C-12 and C-13.).\u00a0 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) are brothers (Tr. 129).\u00a0 It had previously admitted that J.Elizondo was one of the employees on the date in question (Exhibits C-1-A through C-1-C).\u00a0Apparently, the foreman was quite close to the area since he appeared in a veryshort time after his presence was requested.\u00a0 Since his English was poor, he used J.Elizondo for purposes of dialogue with the CO.\u00a0 Among other things, J. Elizondostated that these were Respondent’s employees and agreed that they were exposed to a fallhazard through the floor opening (Tr. 120-125, 164, 258).\u00a0 At the end of the basicinvestigation both the CO and J. Elizondo spoke on the telephone to Elizondo (Tr.129-132).\u00a0 Also, see Exhibits R-4.[[17]] Slovak’s qualifications and workbackground can be found in the transcript at pages 169-170.[[18]] It would appear likely that Slovakreceived his information on this from Cardwell.[[19]] In some situations, that might be asatisfactory explanation.[[20]] The use of a crane is worked out withSlovak (Tr. 210).[[21]] In this case, a reasonable inference fromthe evidence indicates that Respondent’s workers had lost a day of work from this projecton April 17th.[[22]] Photographs were substituted in theevidence for the actual hard hat (See Exhibits C-16 through C-19.).\u00a0 The hard hat waswhite.\u00a0 It has a Texas flag on the front, having rectangular dimensions ofapproximately 2×4 inches, with \”Lee Roy Westbrook Construction Company\” printedin blue lettering thereon.\u00a0 The rear of the hard hat has an American flag depictedthereon.\u00a0 It has approximately the same dimensions (Tr. 207-209).[[23]] Additionally, Rodrigues told the CO thatthe foreman was aware of this situation (Exhibit R-4, pages 1 and 2).\u00a0 Whileordinarily an issue might be raised as to whether this type of evidence is admissible,Respondent introduced it into evidence (Tr. 94, 151).[[24]] Respondent has cited the SeventhCircuit’s decision in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975).\u00a0 The Court limited the application of its decision in that case to non-seriousviolations.\u00a0 However, Respondent’s principal reliance is centered on two landmarkdecisions issued by the Commission, Anning-Johnson Co.,(\”Anning-Johnson\”) 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ? 20,690(No. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp.(\”Grossman\”), 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ?20,691(No.12775, 1976), together with subsequent Commission decisions bearing on theissues raised therein.[[25]] The Secretary has not even bothered toargue this point in his Memorandum.[[26]] The contract is composed of Respondent’stwo-page bid entitled \”Proposal\” and the bilateral agreement between Connell andRespondent entitled \”SUBCONTRACT AGREEMENT\” (\”the Contract\”).\u00a0 Byvirtue of a provision of the Contract, the Proposal became merged into the Contract.\u00a0Among other things, the Contract provides that \”. . .The attached proposalshall become a part of this contact and if any provisions of the contracts are in conflictthis proposal shall supercede and shall be binding. . . .\” I note that almostidentical language was set forth in the Proposal.\u00a0 Surely, the parties intended forthe provisions of the Proposal to govern in case of a conflict or they would have usedsome other language than \”this proposal.\”\u00a0 A contract itself would hardlybe referred to as a proposal.[[27]] Surely, the Proposal language of\”safety facilities\” is broad enough to include covers over floor openings bydecking. Regardless thereof, the foregoing admission reveals that Connell could haveguarded this particular violative condition with a cover at that time.\u00a0 Based onSlovak’s own testimony, Connell’s obligation to guard had arisen.\u00a0 Thus, this findingneed not rest on testimony by Davis (of a hearsay nature) regarding conversations with BobSaunders, the project manager and Slovak’s supervisor (Tr. 230-235).[[28]] In fact, paragraph 27 of the Contractcontains the contractual machinery for resolving disputes between the Respondent andConnell.\u00a0 Significantly, in those matters that the parties cannot resolve amicably,this paragraph provides that the Respondent shall follow Connell’s written instructionsand later pursue its legal remedies.\u00a0 Therefore, this Contract contemplates thatRespondent may have to perform certain work for which Connell bears ultimateresponsibility. [[29]] Incidentally, I reject Respondent’scontention that abatement was taking place when the photographs were taken on April 18th(Respondent’s Brief, pages 11-12 and 29-30).\u00a0 Elizondo’s testimony is not of bedrockquality.\u00a0 Moreover, he was not there. Initially, he disclaims any knowledge and,thereafter, his testimony has, at best, a speculative quality (Tr. 210).\u00a0 Next,Respondent has misread the transcript.\u00a0 The CO’s statement resides on pages 154-156of the transcript.\u00a0 At the cited source (page 125), he was reporting on comments byJ. Elizondo and Cardwell.\u00a0 Those attributed to J. Elizondo are not helpful toRespondent; but those attributed to Cardwell could be so interpreted.\u00a0 However, Ifind Cardwell’s actual testimony to be more persuasive (Tr. 196-197). Apparently, he wasreferring to shoring as a support for the next floor (which the CO has referred to as\”partial decking\”) (Tr. 154-156).\u00a0 At any rate, I find the credibleevidence does not support Respondent’s contention.[[30]] Again, Respondent has misread the record(Respondent’s Brief, pages 11-12).[[31]] There is not one scintilla of evidence inthis record that this would have displeased the general contractor.[[32]] However, at least, one comment should bemade to illustrate yet another credibility problem related to Respondent’s case. WhileDavis testified at length about the number of times that she had complained to Connellofficials (Slovak and Saunders) in regard to guarding floor openings and the perimeter(much of this arose out of her testimony on the responsibility issue), she also statedthat this got the desired results (at times, after several requests) within three or fourdays (Tr. 230-235, 250).\u00a0 This only needs to be compared with the established factthat not one of these floor openings (on any floor) was guarded when this inspectioncommenced on April 17, 1985.\u00a0 Testimony regarding safety instructions (avoid openingsuntil guarded – Elizondo; and avoid openings unless using safety equipment – Davis) hasbeen fully considered (Tr. 212; 248).\u00a0 The fact is that none of the foregoing wasactually being done.\u00a0 At best, this can be interpreted to be a result of a lack ofeffective communication of safety rules and\/or a lack of enforcement of said rules.[[1]] The Secretary required abatement of thealleged violation by May 21, 1985, and a penalty of $400.00 was proposed.”