“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 7987 NATIONAL ROLLING MILLS CO., ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 21, 1976DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BARNAKO, Chairman:A decision of Administrative Law JudgeWilliam E. Brennan is before us for review pursuant to section 12(j) of theOccupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter?the Act?). The only substantive issue before us[1] is whether Judge Brennanerred in vacating item 20 of a nonserious citation, which alleged a violationof 29 C.F.R. 1910.22(c).[2] For the reasons below, wereverse the Judge, modify the item to de minimis, and affirm the item asmodified.The facts are these: Respondent is amanufacturer of steel products. In its cold mill building, a pit in the floorextending between the down ender and the high temper mill measuredapproximately 20 feet in length, 23 inches in width, and 7 feet in depth at thedeepest point. Inside the pit, a coil buggy ran electrically on tracks. Itsfunction was to stand coils of metal on end at the down ender, move the coilsfrom the down ender to the high temper mill, and mount the coils on a spindleat the temper mill. The coil buggy was operated from a control panel locatedaway from the edge of the pit. However, on each run of the coil buggy, it wasusually necessary for an employee to help guide the steel coil onto thespindle. To perform this job, it was necessary for the employee to step acrossthe pit. The coil car?s position in the pit was directly below the employee sothat the fall distance into the pit was no more than 3 feet. The complianceofficer observed that the area at the edge of the pit appeared to be slick withan oily substance.Respondent?s supervisor admitted that itwas contemplated that the pit would create a falling hazard. For this purpose,Respondent initially constructed a drawbridge across the pit. However, thedrawbridge proved unsatisfactory since it was frequently torn off by coilsrunning into it. After repairing it many times, Respondent abandoned the use ofthe drawbridge in 1971. Consequently, it installed steel guardrails around someportions of the pit. The area where employees stepped across admittedly wasneither guarded nor covered. However, Respondent installed ?all-grip plates,?which are steel plates imbedded with carbide, at the edges of the pit.Respondent also provided employees with nonskid oil resistant safety shoes atits own expense and enforced their use. When the coil buggy was not inoperation, coils of metal were ordinarily stored in the pit.The compliance officer testified that hewas told by three employees that they had fallen into the pit many times.However, Respondent?s records indicated that only one employee had fallen intothe pit in 1970 or 1971. The Judge resolved the conflict by finding that oneemployee had fallen into the pit. In so doing, he fairly weighed the evidence.We have said that in such circumstances, where a Judge?s finding is supportedby the evidence, we will not reweigh the evidence on review. OklandConstruction Co., No. 3395, BNA 3 OSHC 2023, CCH OSHD para. 20,441 (Feb.20, 1976).On these facts, Respondent was issued acitation which alleged a nonserious violation of 29 C.F.R. 1910.22(c) in thatRespondent failed to provide a cover or guardrails to protect employees fromthe hazard presented by a pit. A penalty of $150 was proposed.Judge Brennan vacated the citation on thebasis that there was a lack of substantial and probative evidence that the pitpresented any hazard to employees. He also granted Respondent?s request for anextension of the abatement period.[3]As a threshold matter, Respondentmaintains that the standard at 1910.22(c) is inapplicable to the citedcondition by virtue of 1910.21(a)(2).[4] Respondent?s argument isthat the definitional section at 1910.21(a)(2) excepts from the requirements ofthe subpart ?floor openings occupied by elevators, dumb waiters, conveyors,machinery, or containers.? Therefore, Respondent contends that the cited pit,[5] which contains the coilcar and tracks, is excepted from the requirements of the subpart, including1910.22(c). We find to the contrary. The clear intent of the exception is toexclude only those openings which are fully occupied by the listed items sothat there is no hazard of falling into the opening. The inclusion of elevatorsand dumbwaiters, which totally cover a floor opening, strongly indicates thatthe terms ?machinery? and ?conveyors? should be interpreted as encompassingonly those which completely occupy the opening. Respondent?s interpretation ofthe exception would permit a pit filled only partially with a machine to beunguarded even though it presents the same or a greater hazard as a totallyempty pit. We will not adopt such an unreasonable interpretation since it wouldbe inconsistent with the purposes of the Act. Brennan v. OSHRC (Gerosa,Inc.), 491 F.2d 1340 (2d Cir. 1974). Accordingly, we conclude that thecited standard at 1910.22(c) is applicable to the condition before us.Turning to the merits, we reverse theJudge?s vacation of the item. The Judge erred in imposing upon the Secretary aburden of showing the existence of a hazard. Section 1910.22(c) by its clearterms assumes the existence of a hazard with regard to open pits and thereforedoes not require that a hazard be proven by the Secretary before noncompliancewith its terms is established. Lee Way Motor Freight, Inc., 7 OSAHRC1128, BNA 1 OSHC 1689, CCH OSHD para. 17,693 (1974), aff?d 511 F.2d 864(10th Cir. 1975). Inasmuch as the evidence shows that the pit was not protectedby guardrails or a cover, a violation of 1910.22(c) was established.[6]We do not, however, find the violation tobe nonserious as alleged. A violation is properly characterized as de minimiswhere it has only a negligible relationship to safety and health and where itis thus inappropriate to require that the violation be abated or to assess apenalty. General Electric Co., 17 OSAHRC 49, BNA 3 OSHC 1031, CCH OSHDpara. 19,567 (1975), appeal docketed, No. 75?4116 (2d Cir., June 20,1975); Van Raalte Co., Inc., No. 5007, BNA 4 OSHC 1151, CCH OSHD para.29633 (April 19, 1976); Alfred S. Austin Construction Co., No. 4809, BNA4 OSHC 1166, CCH OSHD para. 20,650 (April 28, 1976). Such is the case here. Weconclude that the hazard here was, at most, trifling. Particularly persuasivein this regard are the brief periods of exposure, the short fall distance ofthree feet, and the precautions taken by Respondent in its installation ofall-grip plates and its enforcement of the use of nonskid shoes. In thesecircumstances, we conclude that the violation was of a de minimis nature anddoes not warrant a requirement of abatement or the imposition of any penalty.Accordingly, item 20 of the citation ismodified to de minimis and is affirmed as modified. It is so ORDERED.?FOR THE COMMISSION:William S. McLaughlinExecutive SecretaryDATE: SEP 21, 1976?MORAN, Commissioner, Concurring in Part, Dissenting inPart:I agree with the affirmance of item 4without a penalty assessment. In the body of his opinion the Judge clearlyindicates that a violation had been established. Thus, it is clear that hisvacation of the item in the decretory portion of his decision was aninadvertent mistake.I disagree, however, with the majority?sreversal of the Judge?s vacation of item 20. Judge Brennan was the trier of thefacts in this case and, after observing the demeanor of the witnesses,evaluating their credibility, and weighing the evidence, he vacated item 20 ofthe citation on the ground that complainant failed to establish that the pit inquestion posed a hazard to respondent?s employees.[7] He was eminently correctin so holding and his finding should be affirmed.The sole purpose of the OccupationalSafety and Health Act is to protect employees from injuries and illnessesresulting from their employment. 29 U.S.C. ? 654. It is therefore obvious thatwhen there is no occupational hazard to employees arising out of a citedcondition, there is no violation of the Act. The Commission has previouslyrecognized this sound principle in Secretary v. Straight Creek Constructors,7 OSAHRC 1158, 1162 (1974), where Commissioner Cleary was the author of thelead opinion.In this case, the evidence establishesthat respondent installed steel guardrails around almost the entire pit. At theunguarded areas, where employees were required to step across the pit,respondent installed steel plates embedded with carbide to prevent employeesfrom slipping. Respondent also provided employees with nonskid oil resistantsafety shoes at its own expense and enforced their use. No probative evidencewas presented at the hearing to show that any of respondent?s employees fellinto the pit since 1971 when these measures were instituted.[8]Under these circumstances, it is clearthat complainant failed to establish that the guardrails installed byrespondent inadequately ?protect[ed] personnel from the hazards of open pits,tanks, vats, ditches, etc.,? as required by the standard. Moreover, by findinga de minimis violation, Messrs. Barnako and Cleary have in effect acknowledgedthat the pit did not constitute a hazard.The Act provides that the Secretary ofLabor may issue ?a notice in lieu of a citation with respect to de minimisviolations? which are defined as ?violations which have no direct or immediaterelationship to safety or health.? 29 U.S.C. ? 658(a) (emphasis added). Thus,by finding a de minimis violation, the majority has in effect concluded thatthe pit in question did not constitute a hazard.[9] In such a situation,Congress has decreed that it is improper to issue a citation but that theSecretary may issue a notice in lieu thereof. Since the Commission does nothave the authority to issue a notice, it must vacate any citation that pertainsto a nonhazardous condition. See my dissenting opinions in Secretary v.Alfred S. Austin Construction Company, OSAHRC Docket No. 4809, April 28,1976, and Secretary v. Van Raalte Company, Inc., OSAHRC Docket No. 5007,April 19, 1976, where I have also discussed the impropriety of my colleagues?affirmance of so-called de minimis violations.?APPENDIXA\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 7987 NATIONAL ROLLING MILLS CO., ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 10, 1975DECISION AND ORDERAPPEARANCES:FOR THE SECRETARY OF LABOR Louis Weiner,Regional Solicitor Alan J. Davis, Esq. U.S. Department of Labor\u00a0FOR THE RESPONDENT Mr. Barney Bus ChiefIndustrial Engineer\u00a0Brennan, W.E.; A.L.J.This is an action arising under theprovisions of Section 10(c) of the Occupational Safety and Health Act of 1970,29 U.S.C. 659(c), (hereinafter the Act), to review certain Items of a Citationfor Nonserious Violations and certain penalties proposed thereon, issuedpursuant to Sections 9(a) and 10(a) of the Act, (29 U.S.C. 659(a) and (c)) onApril 18, 1974, by the Secretary of Labor through the Area Director of theOccupational Safety and Health Administration for Philadelphia, Pennsylvania,(hereinafter Complainant) to National Rolling Mills Company, of Malvern,Pennsylvania, (hereinafter Respondent).On April 15, 1974, an inspection was madeat Respondent?s mill located at 100 Morehall Road, Malvern, Pennsylvania, whereit is engaged in manufacturing steel products. As a result of this inspection,Respondent was issued a Citation for Nonserious Violations of Section 5(a)(2)of the Act, 29 U.S.C. 654(a)(2) consisting of 20 numbered Items together with aNotification of Proposed Penalties.Pursuant to Section 10(c) of the Act, 29U.S.C. 659(c), Respondent, through a letter from its Chief Industrial Engineer,gave notice of its intention to contest the following:?The violations alleged in Items numbered1(a) and (c); 3; 13; 14; 16; 17 and 20.?The penalties in the amounts indicatedproposed for Items numbered 1(a), (c) and (d)?$40; 3?$40; 4?$60; 14?$50; 17?$50and 20?$150.?This Notice of Contest additionallyrequested extension of abatement periods as follows:Item No. 1(d) from 5\/20\/74 to 6\/14\/74?Item No. 7 from 5\/20\/74 to 5\/31\/74?Item No. 20 from 5\/20\/74 to 90 daysfollowing the Commission?s final Order herein.[10]???????????? Afterthe filing of the Complaint and Answer herein, this case came on for trial atPhiladelphia pursuant to notice.Post-trial briefs were ultimately filed byboth parties by November 6, 1974.Having considered the entire recordherein, the testimony and demeanor of the witnesses, the exhibits,stipulations, representations and admissions of the parties, it is concludedthat the substantial evidence of record considered as a whole supports thefollowing findings of fact and conclusions of law.No affected employees or representativesthereof desired party status.At the outset of the trial, Complainantmoved to withdraw Items numbered 3, 13 and 14, which Motion was granted withoutobjection. (TR 4.)Complainant further moved to amend ItemNo. 16 to refer to only one fan at Respondent?s mill. This Motion was granted.(TR 4.) Respondent, appearing through its Chief Industrial Engineer, Mr. BarneyBus, not an attorney, then moved to withdraw its contest to this Item, asamended. This Motion was granted. (TR 5.)The following stipulations were agreedupon. At the time of the inspection, Respondent was a Division of the BundyCorporation. However, on April 12, 1974, it was incorporated itself in theState of Pennsylvania under the name National Rolling Mills Company. Itsprincipal office is located at 100 Morehall Road in Malvern, Pennsylvania.Respondent conceded that it is an employer engaged in a business affectingcommerce within the meaning of Sections 3 (5) and 3 (6) of the Act, 29 U.S.C.652(5) and (6). It does not dispute the jurisdiction of the Review Commission.It classifies itself as the smallest of the three steel fabricating companiesin the area with approximately 600 daily employees and total sales for 1973 of$45 million. It has no known history of prior violations of the Act and noinjuries were involved with this case.Complainant?s case was presented through twowitnesses, the inspecting Compliance Officer, Mr. Dillon and the Area Director,Mr. Sachkar. Respondent presented the testimony of its Chief Engineer, Mr.Martin, who accompanied Mr. Dillon on his inspection.? The Citation set forth the following relativeto this Item:\u00a0 Item No. Standard Description of Alleged Violation 1 29 CFR 1910.22(b)(1) \u00a0 Aisles and passageways, in the following locations, were not kept clear and in good repair with no obstructions across or in the aisles that could create a hazard: a) Electro-Galvanizing Department?skids of 55-gallon drums obstructing the aisle by galvanizing machine #1 ? c) Acoustical Building #1?skids, coils of steel and boxes of material obstructing the aisle ? d) Pickle House, Building #7?floor was in disrepair with holes, indentations and uneven surface ? \u00a0Abatement was called for ?Immediately uponreceipt of Citation? except for Item No. 1(d) with an abatement date of5\/20\/74. A $40 penalty was proposed.The Standard cited, provides:29 CFR 1910.22(b)(1)?(b)Aisles and passageways.(1) Where mechanical handling equipment isused, sufficient safe clearances shall be allowed for aisles, at loading docks,through doorways and wherever turns or passage must be made. Aisles andpassageways shall be kept clear and in good repairs, with no obstruction acrossor in aisles that could create a hazard.?Compliance Officer Dillon testified thaton the day of his inspection, April 15, 1974, he observed ?. . . skids of55-gallon drums sitting in what was an aisle immediately off the galvanizingline.? (TR 13.) The hazard presented, in his opinion, was impaired egress inthe event of an emergency. The Compliance Officer did not photograph thiscondition nor did he take any measurements.Respondent, some two months after theinspection, did take photographs of the locations involved in the variouscontested Items, to show the locations involved, not the conditions alleged tobe in violation of the Act. Some of these black and white photographs were admittedinto evidence as Complainant?s exhibits, others as Respondent?s exhibits.Respondent?s Chief Engineer, Mr. Martin,who accompanied Mr. Dillon on his inspection, testified that the area involvedin this Item was a storage area. He stated that one barrel was ?askew? becauseemployees were taking some material from it. (TR 74.) He further testified thatthe passageway was not completely blocked as it was his recollection that heand Mr. Dillon had to walk ?single-file? around this barrel.The location involved is depicted inExhibit R?8. Additionally, Mr. Martin testified that there existed two paths oftravel in this area, an aisle shown in Exhibit R?7 or between rolls of steelstock, as shown in Exhibits R?4 and R?5. (TR 74.) He further advised the ComplianceOfficer that, on the Monday of the inspection, the galvanizing line was not inoperation, and the obstruction in this aisle was not a normal condition. (TR13.)Upon this state of the evidence it isconcluded that the temporary, partial obstruction in this aisle did not createa hazard, within the intent of the cited Standard, even under the emergencyconditions envisioned by Mr. Dillon, because of the availability of alternateescape routes. Thus, Item 1(a) must be vacated.The second condition observed by Mr.Dillon, set forth in Item 1(c), was located in Respondent?s acousticalbuilding. He testified to observing a skid or pallet, upon which were stackedcardboard cartons containing metal ?grid work,? ?. . . sitting out in theaisle, and there were some coils of steel which were encroaching on the aisle.?(TR 14.) He admitted that the loaded pallet was on the right side of thisaisle, leaving approximately one half unobstructed. (TR 41?43.) The area inquestion, not the condition observed, is depicted in two of Respondent?sphotographs, Exhibits C?1 and C?2. The hazard here, in Mr. Dillon?s view was ?.. . impairment of egress in the event of an emergency.? (TR 17.)Mr. Martin testified that the aisle inquestion, which was not measured by the Compliance Officer (TR 36), was 12 feetwide. Two forklift trucks are used regularly and continuously in this area, toservice 15 production lines involving Respondent?s products. The usualprocedure followed is for a forklift truck to remove a loaded pallet, place itin the aisle, then to place an empty pallet in the vacant storage spot, and tothen immediately retrieve the loaded pallet and transport it to itsdestination. He readily admitted to having seen the loaded pallet in this aislebut stated that he had never seen such a condition at this location for longerthan 15 minutes at any time. This was so because this area is heavily traveledby Respondent?s forklift trucks servicing the various production lines, and anysuch condition would impede this traffic flow and hence production, and alsopossibly result in damage to finished products. (TR 76?81.) He further statedthat employees are instructed to keep this aisle clear at all times, and thecondition observed was unusual and temporary, perhaps occasioned by theforklift truck leaving the area to refuel.Upon this state of the record it isconcluded that the aisle in question was only partially obstructed, a temporarycondition, not usually pertaining at this location and contrary to companyinstructions. In my view, such a temporary condition is not within thecontemplation of the cited Standard and this Item must be vacated.The last condition observed by Mr. Dillonunder Item No. 1 of the Citation herein was the rough surface of an undefinedarea of flooring adjacent to the ?pickle?[11] line in Building No. 7.The surface of this concrete floor had been eroded by the dripping of the rustpreventative oil and, in Mr. Dillon?s view, presented ?… a tripping hazard topedestrian traffic and could present a hazard to industrial trucks travelingover that surface.? (TR 17.)The Respondent did not contest this Item,as far as the alleged violation was concerned, only the penalty. Mr. Martintestified to having advised Mr. Dillon, during the inspection, that as of thatdate, Respondent had already received quotations for the cost of repairing thissurface and had placed an order for this repair. (TR 82.) At the time of thetrial herein, this repair had been completed.Upon this evidence, no penalty isjustified. It is therefore concluded, that the proposed penalty of $40 basedupon Item No. 1, not proportionately allocated to the four sub-items thereof,must be vacated in its entirety.? Item No. Standard Description of Alleged Violation 4 29 CFR 1910.23(c)(2) \u00a0 Walkways, in the following location, four feet or more above adjacent floor\/ground level, were not guarded by standard railings: a) Electro Galvanizing Line #2, Steel walkways?intermediate rails not provided \u00a0 Abatement was ordered by 5\/20\/74 and a $60penalty was proposed.Respondent contested only the penalty. Mr.Dillon testified to having observed an unmeasured section of a metal catwalkwhich had no midrail although it did have a top rail. He stated that thiscatwalk was above a production line at a point where flat sheet steel was beingunrolled for galvanizing and the hazard was that an employee might fall ontothe moving steel sheets below and be carried into the rollers. (TR 18.)Respondent?s photograph, Exhibit C?3, shows the location involved.Mr. Martin testified that the catwalkinvolved was over 500 feet long and that on the day of the inspection, top andmid rails had been installed on both sides thereof except for the 40-footsection observed by Mr. Dillon. Pipe for the missing section of mid rail was atthe location for installation and construction thereof had not been completed.Further, that this catwalk is used only bymaintenance personnel on Mondays, on which day the production line below thecatwalk was shut down. (TR 85?87.)Upon this state of the evidence, it is myview that this condition at the worst constituted only a technical violation.The mid rail had been installed by the time of trial. (See Exhibits C?3, R?1,R?2). No penalty is justified and the proposed $60 penalty must be vacated.\u00a0 Item No. Standard Description of Alleged Violation 17 29 CFR 1910.252(b)(4)(vii) \u00a0 Electrode holder, not in use on the following welding equipment, was not so placed that accidental electrical contact cannot be made with persons or conducting objects: a) Construction Department??Hobart? AC-DC welding machine extending into the aisle \u00a0 Abatement was ordered ?Immediately uponreceipt of Citation? and a $50 penalty was proposed.The Standard cited provides:29 CFR 1910.252(b)(4)(vii)?(vii) Electrode holders. Electrode holderswhen not in use shall be so placed that they cannot make electrical contactwith persons, conducting objects, fuel or compressed gas tanks.?Mr. Dillon testified to observing an AC-DCHobart electrical welding machine in Respondent?s construction department uponwhich, ?. . . the electrode holder was facing towards the front of this machinepresenting a hazard of contact with anyone or any object passing where themachine was located.? (TR 21.) He voiced the opinion that the outward facingelectrode holder presented ?. . . the hazard of shock to someone who would bepassing by there or carrying a conducting object past there and came incontact.? (TR 23.) Respondent?s photos, Exhibits C?4 and C?5 depict this weldingmachine except for the outward facing electrode holder.The Compliance Officer observed no one inthis area. (TR 53.)Mr. Martin testified that the area inwhich this welder is located is a work station and that no aisle nor trafficpasses through it. Further, at the time of the inspection, the machine wasturned off, contained no electrode, and that there was no employee working atthis station. (TR 89?90.)Thus there is a complete failure of prooftending to establish any possibility of ?electrical contact,? by anyone oranything with this electric welder. This Item of the Citation and proposedpenalty must be vacated.\u00a0 Item No. Standard Description of Alleged Violation 20 29 CFR 1910.22(c) \u00a0 Covers and\/or guardrails were not provided to protect personnel against the hazards of open pits in the following location: a) Cold Mill, Building #8, between Downender and the Four High Temper Mill? pit where coils of steel are moved by means of a drive chain. \u00a0 \u00a0Abatement was ordered by 5\/20\/74 and a$150 penalty was proposed.The Standard cited provides:29 CFR 1910.22(c)?(c) Covers and guardrails.?Covers and\/or guardrails shall be providedto protect personnel from the hazards of open pits, tanks, vats, ditches, etc.?This Item involves a pit running fromequipment known as a ?down under? to a ?four high temper mill.? (TR 25.) Mr.Dillon testified that it is approximately 20 feet long, up to 7 feet deep ?atsome points? and 3 to 3 1\/2 feet wide (TR 28.) Along the bottom of this pitruns a piece of equipment known as a ?coil buggy? or ?coil car? which is usedto convey coils or rolls of steel to the temper mill where the coil is mountedon a spindle. The ?coil buggy? is operated electrically from a control panelnear the temper mill spindle. Each time a coil of steel is positioned by thecoil buggy for mounting on the spindle, it is frequently necessary for anemployee to step across this pit to guide the steel coil onto the spindle. Mr.Dillon did photograph this scene which photographs were admitted into evidenceas Exhibits C?6 through C?10. Along either side of this opening, very heavyguardrails or barriers are installed.Mr. Dillon found that the surface wherethe employee would step across the pit ?. . . appeared slick from some type ofa liquid oily substance.? (TR 29.)He testified that he asked three employeesworking at this location if ?. . . anyone ever fell in there, and they said onmany occasions they had fallen into there.? (TR 28.) Mr. Dillon believed this conditionpresented a falling hazard.Mr. Martin testified that the point wherean employee steps over the pit measures 23 inches (TR 104, Exhibit 20). On eachside of the edge of this pit, at this point, are installed ?all grip plates,?steel plates embedded with carbide producing a non-slip surface. (See ExhibitR?17.) Its employees are provided nonskid, oil resistant safety shoes atcompany expense. (TR 106.) Further, that when an employee does step across thispit to position a coil of steel, the coil car which conveyed the coil of steelto the spindle is below such an employee in the pit and thus, the distance fromthe nonskid plates to the coil car below is about 3 feet. (TR 104, ExhibitR?20.) In addition, normally coils of steel are stored on top of this pit, thuspreventing anyone from falling into this pit. (See Exhibits R?15, R?16, R?18,TR 105?106.)He further testified that he ismanagement?s representative on the company?s safety committee[12] and in this positionwould have knowledge of anyone falling into this pit. A search of Respondent?srecords was made upon the request of Mr. Bus, which revealed one employee hadfallen into this pit sometime in 1970 or 1971. Mr. Martin did not recallwhether this was a lost-time accident. (TR 119.)Mr. Martin further testified that whenthis pit was installed in 1968, some type of a drawbridge was installed at thepoint where employees step across to guide the steel coil onto the spindle.However, this drawbridge was constantly being torn off by the steel coils beingbrought into position. It had been repaired ?. . . many, many times.? (TR 108.)It was finally removed sometime in 1971 as non-feasible and a hindrance toproduction. The monskid plates and heavy guardrails were then installed.This evidence is in sharp conflict withthe hearsay evidence produced through Compliance Officer Dillon, that he hadbeen told by three unidentified employees that they had fallen into this pit?on many occasions.? (TR 28.)Such a conflict leads me to the conclusionthat there is a lack of substantial and probative evidence that an employeehazard at this location has been established by Complainant.[13] It is therefore concludedthat Complainant has not sustained the burden of proof as to this Item and it,as well as the proposed penalty based thereon, must be vacated.The evidence of record establishes thatall violative conditions, except for Item No. 20, were abated by the time oftrial (TR 117). As to Item No. 20, Respondent has petitioned the AssistantSecretary of Labor for a variance (see R., p. J?5). This record, in my view,supports the granting of Respondent?s requested extension of the abatement datefor Item No. 20 to 90 days after entry of the Commission?s Final Order herein.Based upon the foregoing findings andconclusions and pursuant to the provisions of Sections 10(c) and 12(j) of theAct, (29 U.S.C. 659(c) and 661(i)) it is hereby,ORDERED:1. That Items numbered 1(a) and 1(c) areVACATED.2. That the $40 penalty proposed for ItemNo. 1 is VACATED.3. That Item No. 4 and the $60 penaltyproposed thereon are VACATED.4. That Item No. 17 and the $50 penaltyproposed thereon are VACATED.5. That Item No. 20 and the $150 penaltyproposed thereon are VACATED.6. Respondent?s request for the extensionof the abatement date for Item No. 20 from 5\/20\/74 to 90 days after entry of aFinal Order herein, is GRANTED.\u00a0WILLIAM E. BRENNANJudge, OSAHRCDated: FEB 10, 1975Hyattsville, Maryland[1] The case was also directed forreview on whether Judge Brennan erred in vacating item 4, which alleged aviolation of 1910.23(c)(2). We conclude that the vacation was inadvertenterror. The Judge recognized in his discussion of the item that Respondent hadcontested only the penalty. On review, Respondent states that it is a matter ofrecord that it contested only the penalty in its notice of contest. However,Respondent argues that it thought that its contest would place in issue certainmatters of importance in determining whether a violation existed. We concludethat Respondent?s notice of contest evidences a clear intent to contest onlythe proposed penalty for item 4. Whereas Respondent specifically contested boththe citation and the proposed penalty for some items, for item 4 itspecifically contested only the proposed penalty. Further, in its brief beforethe Judge, Respondent reiterated that only the penalty was contested. Compare TurnbullMillwork Co., No. 7413, BNA 3 OSHC 1781, CCH OSHD para. 20,221 (1975).Respondent?s failure to contest the citation renders the citation final as amatter of law under section 10(a) of the Act.\u00a0[2] The standard at1910.22(c) requires that ?covers and\/or guardrails shall be provided to protectpersonnel from the hazards of open pits, tanks, vats, ditches, etc.?[3] Judge Brennanfound that, if a violation were established, a 90-day extension of the abatementdate was warranted on the record. Inasmuch as we affirm the item as a deminimis violation requiring no abatement, we need not pass on Respondent?srequest for an extension of the abatement period.\u00a0[4] The term ?flooropening? is defined in 1910.21(a)(2) as an opening measuring 12 inches or more inits least dimension, in any floor, platform, pavement, or yard, through whichpersons may fall; such as a hatchway, stair or ladder opening, pit, or largemanhole. Floor openings occupied by elevators, dumb waiters, conveyors,machinery, or containers are excluded from this subpart.\u00a0[5] Section1910.21(a)(2) characterizes a ?pit? as a type of floor opening.[6] We note by way ofan aside that Respondent?s supervisor, when testifying as part of Respondent?scase, stated that precautions were taken around the pit because it wascontemplated that pit would create a falling hazard.[7] See his decisionwhich is incorporated herein by reference and attached hereto as Appendix A.\u00a0[8] In their desireto prove that the pit presented a hazard to respondent?s employees, mycolleagues seem to completely forget that respondent did not replace apreviously used ?drawbridge? with the steel railings and nonskid plates until1971. The only probative evidence regarding falling accidents shows that anemployee fell into the pit ?sometime in 1970 or 1971.? This evidence iswoefully inadequate to establish that the pit, as now guarded, is hazardous inany way. The Judge most certainly recognized this in finding that there was ?alack of substantial and probative evidence that an employee hazard [existed] atthis location.?[9] Query:? If there is a hazard, how can a failure toorder abatement be justified? See footnote 3 of the majority opinion. On theother hand, if there is no hazard?how can a finding that the employer was inviolation of the Act be justified?[10] The uncontestedItems of this Citation and proposed penalties have become the Final Order ofthe Commission by operation of Section 10(a) of the Act, 29 U.S.C. 659(a), nonotice having been filed by any employee or representative thereof.[11] ?Pickling? is a process by whichscale is removed from steel by hydrochloric acid. After pickling, the steel istreated with some type of oil as a rust preventor.[12] This committeemeets approximately each month and is quite active. In the past two yearsRespondent has spent over $160,000 to bring its plant into compliance with theAct (TR 110).\u00a0[13] Hearsay evidence standing alonecannot support a finding. Consolidated Edison Co. v. NLRB; 305 U.S. 197, 230(1938). One wonders why the declarant employees are not produced by Complainantin this type of situation.”