“SECRETARY OF LABOR,Complainant,v.NORTH BERRY CONCRETE CORPORATION,Respondent.OSHRC Docket No. 86-0163_DECISION_Before: BUCKLEY, Chairman; AREY, Commissioner.BY THE COMMISSION:At issue is whether the judge erred in vacating a citation item alleginga serious violation of the construction standard previously published at29 C.F.R. ? 1926.700(b)(2).[[1\/]] Specifically, the item charged thatNorth Berry Concrete Corporation had exposed its employees to the dangerof falling and becoming impaled on reinforcing steel bars (\”rebars\”)during concrete construction. The major issue is whether the standardapplies to employees who were not at their work stations, but werewalking to and from them. For the reasons that follow, we reverse thejudge’s decision, find a serious violation and assess a $100 penalty.North Berry was the concrete subcontractor for a 68-story building underconstruction at 146 West 57th Street, New York, New York. Its employeeswalked near a floor opening that was about six feet across (thoughirregularly shaped) on the 61st floor. About ten vertical rebars,arranged in a semicircle, rose about three feet from the concrete 60thfloor, below the floor opening. Two OSHA inspectors testified that anemployee could have fallen on a rebar if he fell through the opening.The rebars, which had been installed by North Berry, were not coveredwith plywood or otherwise protected to prevent impalement. North Berry’semployees had no assigned jobs near the floor opening. However, theypassed it to reach a central stairway which was their only access towork stations on higher floors.The judge concluded that the standard does not cover employees _in__transit_ because it applies only to \”work\” above rebars. However, theCommission has held that the standard covers employees traveling to andfrom their work stations. _Gelco Builders, Inc._, 77 OSAHRC 203\/B14, 6BNA OSHC 1104, 1977-78 CCH OSHD ? 22,353 (No. 14505, 1977). We adhere tothe reasoning of _Gelco_. There, the employees were exposed to animpalement hazard when they climbed an access ladder above rebars. Thecommission stated:[W]e conclude that the use of the ladder constituted \”work\” within themeaning of Section 1926.700(b)(2). In our opinion, \”work\” includes thenecessary activity of gaining access to the work station. . . .6 BNA OSHC at 1106, 1977-78 CCH OSHD at p. 26,941 (footnote and casecitations omitted). _Cf_. _Gilles & Cotting, Inc._, 76 OSAHRC 30\/D9, 3BNA OSHC 2002, 2003, 1975-76 CCH OSHD ? 20,448, p. 24,425 (No. 504,1976) (Secretary may establish employee access to a hazard by showingthat employees while in the course of \”their normal means ofingress-egress to their assigned workplaces, will be, are or have beenin a zone of danger\”).North Berry attempts to distinguish _Gelco_ on the grounds that thedecision was narrowly limited to the use of a ladder, and that theemployees’ travel there was more precarious. However, _Gelco’s_reasoning applies here because, as noted above, it indicated that \”work\”under the standard includes \”the necessary activity of gaining access tothe work station\” generally. The opinion does not distinguish betweenmethods of travel, and we see no reason to make such a distinction._See_ _also_ _J.M. Martinac Shipbuilding, Inc._, 76 OSAHRC 46\/A2, 6 BNAOSHC 1645, 1978 CCH OSHD ? 22,792 (No. 14767, 1978) (standard requiringguarding if deck openings and edges during shipbuilding to protectemployees \”working around open hatches\” applies to employees merelyclimbing in and out of hatch and walking close to it), _aff’d_, 614 F.2d776 (9th Cir. 1980) (unpubl.).North Berry also argues that even if the standard reasonably may beapplied here, the pleadings did not inform it that this particularcitation was directed at employees who merely walked by the opening.Thus, it argues that it was unable to defend itself properly.We disagree. The Secretary’s answers to North Berry’s interrogatoriesprovided notice that employees \”passing\” the floor opening was the basisof the citation.[[2\/]] Also, inspector Richardson made clear at thehearing that the basis for the citation was employee exposure whilewalking to and from work stations past the opening. North Berry’scounsel did not object at any time to the introduction of evidenceconcerning employees walking past the opening. North Berry had adequatenotice that the citation was based on employees walking past the opening.Thus, the standard properly may be applied in this case. To establish aviolation, the Secretary also must show that the standard’s terms wereviolated, that an employee had access to the hazards, and that theemployer know or with the exercise of reasonable diligence could haveknown of the violative conditions. _E.g._, _Dun-Par Engineered FormCo._, 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD ? 27,651, p. 36,033 (No.82-928, 1986).To resolve whether the standard’s terms were violated, we must determinewhether North Berry’s employees were working (as defined herein) \”above\”the rebars.[[3\/]] The judge essentially found that employees were not\”above\” the rebars for two reasons. First, he found that no hazard wasproven because \”there was sufficient room for the employees (1-2 feet ormore) to walk along the 61st floor . . . without being in a zone ofdanger.\” Second, he found the evidence insufficient that an employeewould be impaled on a rebar if he fell through the opening. We disagreewith these findings.As to the first finding, the walking surface was at least 10 feet widein that area. However, the testimony indicates that North Berryemployees routinely walked within one to two feet of the floor openingwhen they went to work, went for coffee, went for lunch, and wenthome.[[4\/]] Thus, employees walked close enough to the floor openingthat they could have fallen through. See, e.g., Dun-Par, 12 BNA OSHC at1965-66, 1986-87 CCH OSHD at pp. 36,033-34 (employee who came within twoto three feet from unguarded edge of upper floor during his assignedwork was exposed to fall). _See_ _also_ _Brennan v. UnderhillConstruction Corp._, 513 F.2d 1032, 1039 (2d Cir. 1975) (to establishaccess to hazard, inspector need not see employee teetering on edge offloor).[[5\/]]As to the judge’s second finding, he dismissed as conjecture inspectorRichardson’s testimony about the chances of an employee being impaled.However, inspector Toale gave testimony that there was a 75 to 80percent chance that an employee would hit a rebar if he fell. Thatestimate was not rebutted. The rebars were almost directly below theopening, as a photograph in evidence illustrates.[[6\/]]Access to a hazard exists if it is reasonably predictable that employeeswill be, are, or have been in a zone of danger in the course of theirduties. In _Gilles & Cotting, Inc._, _supra_, we defined the course ofemployees’ duties as including their assigned working duties, theirpersonal comfort activities while on the job, or their normal means ofingress-egress to their assigned work places. _See also_, _Clement FoodCo._, 84 OSAHRC 26\/A2, 11 BNA OSHC 2120, 2123, 1984-85 CCH OSHD ?26,972, p. 34,633 (No. 80-607, 1984); _Carpenter Contracting Corp._, 84OSAHRC 22\/B10, 11 BNA OSHC 2027, 2029, 1984-85 CCH OSHD ? 26,950, p.34,563 (No. 81-838, 1984). As stated above, North Berry employeesroutinely walked within one to two feet of the floor opening in thecourse of their duties, and thereby were \”above\” the rebars, whichpresented a hazard of impalement. We find, therefore, that the employeeshad access to the hazard of impalement.The next question is whether North Berry had the requisite knowledge ofthe violative conditions. Its foreman, like its other employees, had topass the floor opening several times daily. The violative conditionswere in plain view. An OSHA inspector testified without contradictionthat the impalement hazard was where the foreman \”has to see it.\” Thatinspector also estimated that the condition had existed for at least aweek, because the pouring of concrete had proceeded to the 67th floor(six stories above the floor opening) by the time of the inspection.This testimony shows that North Berry, through its foreman, knew, orwith the exercise of reasonable diligence could have known, of thehazardous exposure. _See_ _Dun-Par_, 12 BNA OSHC at 1965-66 and n. 2,1986-87 CCH OSHD at pp. 36,033-34 and n. 2.[[7\/]]Thus, the Secretary has proven all the elements of a violation. Theremaining issues are whether the violation was serious, as alleged, andwhether the Secretary’s proposed penalty was appropriate. We concludethat the violation was serious under 29 U.S.C. ? 666(k). InspectorRichardson testified without contradiction that an employee could havebeen killed if he fell on the rebars. Thus, death or serious physicalharm likely could have resulted from the impalement hazard.The Secretary proposed a $630 penalty. We disagree. Penalties are totake into consideration the employer’s degree of good faith, as well asthe gravity of the violation, the employer’s size and its history ofviolations. 29 U.S.C. ? 666(j). On the one hand, the violation couldhave caused death or serious physical harm. Also, North Berry was alarge employer, with over 100 employees, and it had previous violationsof other construction standards on record.On the other hand, so far as the record shows, this was a unique andtransient violation on a fast-changing high-rise construction site, andwas not flagrant.[[8\/]] There is no evidence that the foremanconsciously realized the extent of the impalement hazards. Althoughthere was some danger that employees could fall onto the unprotectedrebars while walking past the floor opening, the relatively wideten-foot corridor alongside the opening made such a fall relativelyunlikely. Also, North Berry’s president testified without contradictionthat it had an active safety program, including a weekly job safetyprogram for its employees. On balance, a penalty of $100 is appropriate.Thus, the citation item for violation of the former ? 1926.700(b)(2) isaffirmed, and a penalty of $100 is assessed. In all other respects, thejudge’s decision is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: 27 FEB 1989————————————————————————WILLIAM E. BROCK, SECRETARY OF LABOR,United States Department of LaborCompIainant,v.NORTH BERRY CONCRETE CORPORATIONRespondent.OSHRC DOCKET NO. 86-0163APPEARANCES:BARNETT SILVERSTEIN, EsquireU.S. Department of LaborOffice of the SolicitorNew York, New YorkFor the ComplainantMcDONOUGH MARCUS COHN & TRETTER, P.C.By JUDAH D. GREENBLATT, EsquireFor the Respondent_DECISION AND ORDER_SOMMER, JUDGE:This is a proceeding under section 10(c) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651, _et_ _seq_. (hereinafter sometimesreferred to as \”the Act\”), to review citations issued by the Secretaryof Labor (hereinafter sometimes referred to as \”Complainant\”), pursuantto section 9(a) of the Act, and the proposed assessment of penaltiestherein issued, pursuant to section 10(a) of the Act.On December 18, 1985, respondent was issued serious citation No. 1alleging violations of 29 C.F.R. ? 1926.28(a) (Amended to include 29C.F.R. ? 1926.105(a)), 29 C.F.R. ? 1926.700(b)(2), 29 C.F.R. ?1926.304(d), 29 C.F.R. ? 1926.401(f) and 29 C.F.R. ? 1926.500(b)(7). Therespondent was also issued repeat citation No. 2 alleging a violation of29 C.F.R. ? 1926.100(a) and other than serious citation No. 3 allegingviolations of 29 C.F.R. ? 1926.450(a)(9) and 29 C.F.R. ? 1926.500(b)(8).Penalties of $2,790 were proposed for the serious violations and $1,080- for the repeat violation. A hearing was held in New York, New York.All parties were represented by Counsel. Counsel for the respondentfiled a post-hearing brief. No jurisdictional issues are in dispute, theparties having pleaded sufficient facts to establish the respondent issubject to the Act and the Commission has jurisdiction of the partiesand of the subject matter._Background_North Berry Concrete Corporation is a corporation organized under thelaws of the State of New York with an office and place of business inBrooklyn, New York. The corporation is engaged in the constructionbusiness as a contractor doing reinforced concrete work and similarconstruction assignments. The corporation was a subcontractor doingconcrete work at 146 West 57th Street, New York, New York where abuilding was being constructed and where the violations alleged hereinoccurred._Discussion__Alleged violation of 29 C.F.R. ? 1926.28(a) and\/or 29 C.F.R. ?1926.105(a) — item 1 of serious citation No. 1_.Citation item 1 alleges that North Berry violated section1926.28(a)[[1]] and\/or 1926.105(a)[[2]] in that an employee was notwearing a safety belt and\/or safety nets were not provided where theworkplace was more than 25 feet above the ground The compliance officerstestified that during the inspection they observed one of North Berry’semployees working near the unguarded edge of the building on the 67thfloor; a distance of approximately 700 feet above the ground.Mr. Toale, one of the compliance officers estimates the distance theemployee was working from the edge as 1 to 1? feet. The employee was notwearing a safety belt nor were there safety nets in this area. Thecompliance officers indicated that while there was perimeter guardingaround the building edges, in the area directly behind where theemployee was working attempting to straighten out a bent rebar there wasnone to prevent a fall. They found that there was a hazard present thatthe employee working near the edge without any protection could fall 67stories to his death or with serious consequences.To establish a violation of the Act, the Secretary must prove, amongother things, that the employer either knew or could, with the exerciseof reasonable diligence, have known of the presence of the violativeconditions. _Daniel International Corp., Wansley Project_, 81 OSAHRC71\/D6, 9 BNA OSHC 2027, 1981 CCH OSHD ? 25,813 (No. 76-181, 1981).The facts amply demonstrate that the employee was exposed to the hazardof a fall from 67 stories warranting the need for and use of safetybelts. The record further reveals that at least one of the respondent’sforemen (Bonecore)[[3]] knew or could with the exercise of reasonablediligence have known of this hazardous condition since he was standingon the desk near the compliance officers and observed or should haveobserved his employee working in plain view near the roof edge withoutprotective equipment. The knowledge of the supervisor is imputed toNorth Berry, who is responsible for the violation herein. Accordingly,the Secretary established a prima facie showing of respondent’sknowledge of the existence of the hazard to its employee and theviolation of the standard. The record further shows that the respondentfailed to produce any evidence which would rebut this showing. CitationNo. 1, item No. 1, alleging a violation of 29 C.F.R. ? 1926.29(a) isaffirmed. A penalty of $500 for the violation is consistent with thecriteria set forth in section 17(j) of the Act under the circumstancesof this case._Alleged violation of 29 C.F.R. ? 1926.700(b)(2) — item 2 of seriouscitation No. 1_.Citation item 2 alleges that North Berry violated section1926.700(b)(2)[[4\/]] in that employees were exposed to the hazard offalling one floor through an opening and onto unprotected steel rebarswhile walking past the opening on the way to their jobs.Compliance Officer Richardson testified that in order for the employeesof North Berry to get to the work stations on the 65-67th floors of thebuilding, they would board a hoist which took them to the 61st floor,and from there they crossed over to a ladder or staircase where theywalked up. However, in leaving the hoist they allegedly walked within1-2 feet of a 6′ x 6′ floor opening exposing themselves to a possiblefall on vertical steel rebars below which were unprotected.The evidence of record fails to establish the presence of a hazard orthat the respondent had actual or constructive knowledge of itsexistence. The respondent had no reason to question the plain meaning ofthe standard which enjoins employees from _working_ above verticallyprotruding steel bars which have not been protected. The employees citedfor this alleged violation were walking by the opening. An agency isbound by what its regulation plainly means, not what is intended. _See__Diamond Roofing Co._, 528 F.2d 645 (5th Cir. 1976).The hazard present is the possibility of a fall upon the unprotectedsteel rebars. However, the compliance officer made no measurements norcould accurately state if a fall occurred whether it would be onto arebar since the distance from the edge to where the rebars were belowwas undetermined. His conjecture that one falling would be impaled on arebar is insufficient to prove a violation. The proof cannot be based onspeculation, nor presumed. _See_ _Ellison Electric_, 1 OSAHRC 247, 1 BNAOSHC 3034, 1971-73 CCH OSHD ? 15,133 (No. 412, 1972); _EdisonLampworks_, 7 BNA OSHC 1818, 1979 CCH OSHD ? 23,913 (No. 76-484, 1979).Additionally both the testimony and photograph reveal that there wassufficient room for the employees (1-2 feet or more) to walk along the61st floor to the other staircase or ladder without being in a zone ofdanger. They were sufficiently distant from the opening that justwalking by could by no stretch of the imagination be called a hazard.The evidence is totally insufficient to sustain the Secretary’s burdenof proof that a hazard was present, or the respondent was aware of it.Item No. 2 alleging a violation of 29 C.F.R. ? 1926.700(b)(2) is vacated._Alleged violation of 29 C.F.R. ? 1926.304(d)5 item No. 3 of seriouscitation No. 1_.Citation item 3 alleges that North Berry violated 29 C.F.R. ?1926.304(d) because the lower guard had not automatically returned tothe covering position when not functioning. The compliance officertestified he saw one man an the first floor of the building using acircular saw to cut a 4 x 4 resting across his knee; the guard on thesaw was not functioning and not protecting the lower blade as required;this created a hazard in that the employee could have cut his leg. Thecompliance officer states he could not ascertain the name of theemployee but was told at the closing conference by Mr. Roscigno that theman using the saw was an employee of North Berry. The respondent ineffect questions whether the evidence is sufficient to show that a NorthBerry employee was operating the saw. I agree there is a question as toidentity. Firstly, this occurred on the first floor while admittedly theevidence shows all employees of North Berry were working on the65th-67th floors; additionally, Mr. Roscigno who allegedly said it was aNorth employee a few days after the incident did not furnish saidemployee’s name and did not actually see this man while at work.Moreover, respondent has denied that Roscigno is a foreman. In short,the evidence as to the identity of this man is scanty and his employmentby North Berry conjectural. Additionally, the defect in the saw was notone readily apparent and there is no evidence that North Berry actuallyknew that the violative condition was present or should have known itexisted with reasonable diligence. Accordingly, the citation forviolation of 29 C.F.R. ? 1926.304(d) is vacated._Alleged violation of 29 C.F.R. ? 1926.401(f)[[6]] — item No. 4 ofserious citation No. 1_.Citation item 4 alleges that an employee was using a drill whose powerwas being supplied through an extension cord absent a grounding plugwhich created a hazard of electrical shock to the user. The testimony ofthe two compliance officers as to where the fault was located differed.Richardson testified that a prong on the extension cord plug was brokenoff at the end where it connected to the tool while compliance officerToale testified the plug was defective at the end connected to thesocket. Another problem concerning this alleged violation is thatneither compliance officer gave any evidence nor indicated they soughtto ascertain how long this condition had existed. Since such vitalinformation is missing from the record, there is a serious question asto whether the respondent had knowledge of the violative condition.Considering the discrepancies in testimony as to location of the hazard,and no proof whether the respondent had actual or constructive notice ofthe alleged violation, the Secretary has not sustained his burden ofproof as to the existence of a violation. Accordingly, item No. 4alleging a violation of 29 C.F.R. ? 1926.401(f) is vacated._Alleged violation of 29 C.F.R. ? 1926.500(b)(7)[[7]] — item 5 ofserious citation No. 1_.Citation item 4 alleges a violation of 1926.500(b)(7) because of afailure by respondent to guard floor openings on both the 65th and 66thfloor of the building. The compliance officer testified that employeesworking in these areas passed within a foot of the unguarded openingsand could fall therein causing serious injuries. The respondent’spresident Martinelli testified these openings were necessary so thatmaterials could be passed through while the job was in progress, andthat this is safer than passing the materials on the outside perimeterof the building. The unproven and self supporting statement of therespondent president that it is safer to proceed with allowing theopening hazards to exist is unacceptable herein. The unguarded openingsare an obvious hazard which the respondent knew existed and nothing wasdone to ameliorate the violative condition. Even if his statement thatthe opening is used to pass material raises the defense of impossibilityof performance, such defense can be entertained if the employer shows 1)compliance with the standard would prevent performance of the workactivity and 2) alternative means of employee protection are notavailable. _M.J. Lee Construction Co._,79 OSAHRC 12 A\/2, 7 BNA OSHC1140, 1979 CCH OSHD ? 23,330 (No. 15094, 1979). Neither element has beensubstantiated. Accordingly, the existent unguarded floor openings are aviolation of the standard, and the citation is affirmed. The penaltyassessed of $560 is reasonable and appropriate under section 17(j) ofthe Act._Alleged violation of 29 C.F.R. ? 1926.100(a)[[8]]–item No. 1 of repeatcitation No. 2_.This citation alleges that North Berry failed to comply with thestandard at 29 C.F.R. ? 1926.100(a) in that employees were not requiredto wear hard hats while working in an area where they were exposed tohead injury from impact. The compliance officers observed five NorthBerry workmen on their knees doing finishing work (smoothing outconcrete) while another activity was going on above them, i.e., a cranewas swinging a bucket full of concrete to another job going on and thethe bucket was about 5′ above the men as it passed. The men were indanger of being hit by the bucket if they suddenly stood up for anyreason or if in some way the bucket accidentally swayed or becamedetached due to any irregularity. Two foremen were present, one of whomwas wearing a hard hat. One of North Berry’s arguments is that hard hatsare purchased and made available to the men but they cannot require ormake them put them on since any penalty may sought to impose would causeunion difficulties, etc. This response is untenable. The standardrequires that employees be provided hats and made to use them wherethere is possibility of head injury exists. _See_ _Franklin R. Lacy,(Acqua View Apartments)_, 81 OSAHRC 7 A\/2, 9 BNA OSHC 1253, 1254, 1981CCH OSHD ? 25,171, p. 31,073 (No. 3701, 1981). The respondent cannotabrogate his responsibility under the Act by shifting the responsibilityto his employees as to whether there will be compliance. The contentionof North Berry that merely making the hard hats available constitutescompliance is rejected. Accordingly, I conclude that North Berryviolated the standard at 29 C.F.R. ? 1926.100(a).The record further demonstrates that the respondent was previously citedfor similar violations of 29 C.F.R. ? 1926.100(a) on two occasions forwhich final orders of the Commission were issued. Accordingly, thisviolation was correctly issued as a repeat violation. _See_ _PotlatchCorp._, 79 OSAHRC 6 A\/2, 7 BNA 1061, 1063, 1979 CCH OSHD ? 23,294, p.28,171 (No. 16183, 1979). The penalty assessed of $1,080 — isappropriate under the criteria set forth in 17(j) of the act._Alleged violation of 29 C.F.R. ? 1926.450(a)(9)[[9]] — item No. 1 -other than serious citation No. 3_.The Secretary alleges that the respondent violated the standard at ?1926.450(a)(9) in that the ladder extending from the 66th to the 67thfloor of the building being contracted had side rails which did notextend more than 36 inches above the landing. The compliance officerduring his inspection personally observed employees using this ladder toascend to the other floor with the violative condition present. Hetestified that the employees and the foremen used this ladder to get tothe worksite. The respondent presented no evidence that disputes thisfinding except stating it was an isolated incident. This defense lacksmerit. The ladder was being used by the foremen who were well aware ofits condition. Moreover, the respondent has not met its burden ofproving this affirmative defense. The employer failed to establish thatit had a work rule which addressed the cited violative condition or thatit effectively communicated or enforced the rules. Accordingly, thecitation for violation of 29 C.F.R. ? 1926.450(a)(9) is affirmed. Nopenalty is assessed._Alleged violation of 29 C.F.R. ? 1926.500(b)(8)[[10]]–item No.2–other than serious citation No. 3_.The respondent was cited for an other than serious violation of 29C.F.R. ? 1926.500(b)(8) for failure to guard floor holes on the 62nd,65th and 66th floors by a standard railing and toeboard or by a floorhole cover. The compliance officer observed numerous floor holes on thefloors listed in the area where respondent’s employees were working. Theholes represented a tripping hazard for the men and the complianceofficer stated that they should be provided with floor hole covers. Therespondent offered no evidence to contradict the obvious violation otherthan they were not responsible for the 62nd floor problem. However, thecompliance officer identified men working on the 62nd as well as the65th and 66th floors as employees of respondent who were subject to thetripping and failing hazard. Accordingly, this violation is affirmed. Nopenalty is assessed._FINDINGS OF FACT AND CONCLUSIONS OF LAW_The findings of fact and conclusions of law in this opinion areincorporated herein in accordance with Rule 52 of the Federal Rules ofCivil Procedure.[[11]]_ORDER_1 – The allegation of a serious violation of the standard set forth at29 C.F.R. ? 1926.28(a) is affirmed and a penalty of $500 is assessedtherefor.2 – The allegations of serious violations of the standards set forth at29 C.F.R. ? 1926.700(b)(2), 29 C.F.R. ? 1926.304(d) and 29 C.F.R. ?1926.401(f) are vacated.3 – The allegation of a serious violation of the standard set forth at29 C.F.R. ? 1926.500(b)(7) is affirmed and a penalty of $560 is assessedtherefor.4 – The allegation of a repeat violation of the standard set forth at 29C.F.R. ? 1926.100(a) is affirmed and a penalty of $1,080 is assessed.5 – The allegations of other than serious violations of the standardsset forth at 29 C.F.R. ? 1926.450(a)(9) and 29 C.F.R. ? 1926.500(b)(8)are affirmed with no penalty assessed.SO ORDERED.IRVING SOMMERJudgeDATED: February 6, 1987Washington, D.C.FOOTNOTES:[[1\/]] That standard provided:_Subpart 0 — Concrete, Concrete Forms, and Shoring_1926 700 _General provisions_.* * *(b) _Reinforcing steel_.* * *(2) Employees shall not be permitted to work above vertically protrudingreinforcing steel unless it has been protected to eliminate the hazardof impalement.Since this alleged violation occurred, the standard was amended as partof a general revision of the Subpart Q standards. 53 Fed. Reg. 22643(June 16, 1988). The revised version of the cited standard is nowpublished at 29 C.F.R. ? 1926.701(b).[[2\/]]North Berry asked the Secretary to [\”s]tate the name of eachemployee . . . alleged to have violated the standard . . . .\” TheSecretary responded in part, \”all employees passing to and frompersonnel hoist.\” That hoist carried employees as high as the 61stfloor. Employees had to pass the floor opening between that point andtheir work stations on higher floors.[[3\/]] It is undisputed that the rebars were not protected to preventimpalement, and that North Berry permitted the employees to walk wherethey did.[[4\/]] There is no question that the employees who walked by the openingincluded a large number of North Berry employees. One OSHA inspectortestified that at least 50 of North Berry’s employees would pass by thefloor opening. He identified them as North Berry employees because theywere doing carpentry work and North Berry \”really was the only one upthere doing carpentry.\” The other OSHA inspector testified that NorthBerry’s foreman identified the employees walking by the opening as itsown, and that only North Berry employees were working above the 61st floor.North Berry’s president testified that if a previous witness had statedthat employees walked within a foot of the opening, \”I think he waswrong.\” However, the president did not explain the basis for hisopinion, and was not present during the inspection. Even if, as thepresident said, the employees were not within one foot of the opening,they were close enough to be endangered.[[5\/]] There was a guardrail across part of the floor opening, but itwas clearly inadequate. One OSHA inspector testified that it \”wasn’t anygood\” because it was \”bent, broken\” and \”[i]t couldn’t really hold up ifa guy fell against it.\” Also, he testified that there was no guardingalong a portion of the floor opening past which employees walked. Therewas no contrary evidence.[[6\/]] North Berry cites a Commission case which held that employees arenot working \”above\” rebars if they work \”on the same level as and nextto the rebars.\” _Berglund-Cherne General Contractors_, 82 OSAHRC 25\/D9,10 BNA OSHC 1644, 1646, 1982 CCH OSHD ? 26,039, p. 32,696 (No. 79-4347,1982), _aff’d_, No. 82-1768 (10th Cir. October 24, 1983)(unpubl.).However, here the employees were not on the same level as the rebars.This employer violated the terms of the standard.[[7\/]] The judge stated that there was Insufficient evidence that NorthBerry had actual or constructive knowledge of the violation. Thatfinding, however, was based on his ruling that the standard did not giveNorth Berry fair notice that it applies to employees merely walkingabove rebars. We have rejected that ruling above. The judge did notaddress whether North Berry knew or with the exercise of reasonablediligence could have known of the violative conditions.[[8\/]] The testimony, noted above, indicating that the constructioncould advance several stories in a week illustrates the rapid pace ofchange that characterizes high-rise construction.[[1]] The standard provides:? 1926.28 _Personal protective equipment_a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.[[2]] The standard provides:? 1926.105 _Safety nets_a) Safety nets shall be provided when workplaces more than 25 feet abovethe ground or water surface or other surfaces where the use of ladders,scaffolds, catch platforms, temporary floors, safety lines, or safetybelts is impractical.[[3]] The compliance officers testified that two individuals, Bonecoreand Roscigno identified themselves as foremen and accompanied themduring the course of the inspection. Joseph Martinelli, the president ofNorth Berry admitted Bonecare is a foreman; he stated Roscigno was not aforeman, but \”it’s quite possible\” that he worked for North Berry.[[4\/]] The standard provides:? 1926.700(b) _Reinforcing steel_* * *(2) Employees shall not be permitted to work above vertically protrudingsteel unless it has been protected to eliminate the hazard of impalement.[[5]] The standard provides:? 1926.304 _Woodworking tools_* * *(d) _Guarding_. All portable, power driven circular saws shall beequipped with guards above and below the base plate or shoe . . . . Whenthe tool is withdrawn from the work, the lower guard shall automaticallyand instantly return to the covering position.[[6]] The standard provides:? 1926.401 _Grounding and bonding_* * *(f) _Extension cords_. Extension cords used with portable electric toolsshall be of the three-wire type.[[7]] The standard provides:? 1926.500(b) _Guarding of floor openings and floor holes___* * *(7) Temporary floor openings shall have standard railings.[[8]] The standard provides:? 1926.100 _Head Protection_a) Employees Working in areas where there is a possible danger of headinjury from impact, or from falling or flying objects, or fromelectrical shock and burns shall be protected by protective helmets.[[9]] The standard provides:? 1926.450 _Ladders_(a)(9) The side rails shall extend not less than 36 inches above thelanding. When this is not practical, grab rails, which provide a securegrip for an employee moving to or from the point of access, shall beinstalled.[[10]] The standard provides:? 1926.500 _Guardrails, handrails, and covers_(b)(8) Floor holes, into which persons can accidentally walk, shall beguarded by either a standard railing with standard toeboard on allexposed sides, or a floor hole cover of standard strength andconstruction that is secured against accidental displacement. While thecover is not in place, the floor hole shall be protected by a standardrailing.[[11]] Rule 52. _Findings by Court_a) _Effect_. In all actions tried upon the facts without a jury . . .the courts shall find the facts specially and state separately itsconclusions of law therein, . . . . If an opinion or memorandum ofdecision is filed, it will be sufficient _if the findings of fact andconclusions of law appear therein_ (Emphasis supplied)”