“SECRETARY OF LABOR,Complainant,v.NOVAK & COMPANY, INC.,Respondent.OSHRC Docket No. 80-2946-SDECISIONBefore: ROWLAND, Chairman; CLEARY andBUCKLEY,[[*]] Commissioner.BY THE COMMISSION:Following an April, 1980 inspection, theSecretary cited Novak & Company for an alleged violation of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651-678, because Novak employees were exposed totwo unguarded floor holes.\u00a0 The questions before the Commission are whether theSecretary established that the open floor holes presented a hazard to Novak employees andwhether Novak failed to take reasonable measures to protect its employees and the allegedhazard.\u00a0 For the following reasons, we affirm Judge David G. Oringer’s decision tovacate the citation.INovak was a plumbing subcontractor at a New YorkCity worksite.\u00a0 During an OSHA inspection, the compliance officer saw two of Novak’semployees walk within three feet of the unguarded floor holes.\u00a0 According to thecompliance officer, the Novak employees were required to walk past these floor openings ontheir way to the stairs which they used in order to reach the basement of the buildingwhere they were working.\u00a0 If an employer were to fall into the floor holes, he woulddrop seven feet from the first level to the basement.Testimony established that the floor holes werethe general contractor’s responsibility and that as a union plumbing subcontractor, Novakwould not be allowed to erect standard railings or move lumber to cover the floor holes.\u00a0 The standard practice at the workplace when a subcontractor saw an unsafe conditionthat it did not control was for the subcontractor to inform the general contractor of thecondition.\u00a0 While Novak had complained to the general contractor about manyconditions at the site, it had never complained specifically about the uncovered floorholes.Testimony differed as to how long the floorholes were uncovered.\u00a0 The compliance officer testified that he had been told by thegeneral contractor’s superintendent that the floor holes had been uncovered for two weeks.\u00a0 However, Ronald Novak, the Vice-President of Novak and Company, testified that thefloor holes had been covered when he was at the worksite approximately ten days before theinspection.\u00a0 The Secretary presented no evidence as to whether Novak’s foreman, orother supervisory employees, were aware of the open floor holes.The Secretary now argues that Novak should haveadvised the general contractor that the floor holes were guarded or, if the conditionremained unchanged, have remove its employees from the hazardous area.\u00a0 Because theNovak employees were exposed to the unguarded floor holes, the Secretary cited Novak forviolating 29 C.F.R. ? 1926.550(b)(1).[[1]]IITo prove any violation of the Act, the Secretarymust establish that the employer knew or, with reasonable diligence, could have known ofthe violative condition.\u00a0 Prestressed Systems Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864,1981 CCH OSHD ? 25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42\/A2, 9 BNAOSHC 1772, 1981 CCH OSHD ? 25,345 (No. 13732, 1981).\u00a0 In this case, the Secretaryhas not presented sufficient evidence to establish that Novak knew of the open floorholes.The Secretary did not establish that any ofNovak’s supervisory employees knew of the unguarded floor holes.\u00a0 Therefore,knowledge must be base upon a showing that Novak could have known of the violativecondition with the exercise of reasonable diligence.\u00a0 The compliance officer’stestimony established that the floor holes were open at the time of the inspection andthat Novak employees were exposed to the openings.[[2]]\u00a0 The Secretary also presentedhearsay testimony that the floor holes had been unguarded for about two weeks.\u00a0 Thistestimony was in conflict with that of Novak’s Vice-President who said that the floorholes had been covered when he visited the worksite ten days before the inspection.\u00a0 Even assuming, however, that the floor holes were open for two weeks, there is noevidence that Novak employees were exposed to the unguarded floor openings for those twoweeks.Novak presented testimony that the worksite wasconstantly changing and that the route which Novak employees would use to get to theirwork areas changed from day to day and even from hour to hour.\u00a0 For example, on theday of the inspection, Novak employees had to walk around lumber and reinforcing rods inorder to get to their work areas.\u00a0 This circuitous route brought them near theuncovered floor openings.\u00a0 The Secretary admits that if the lumber and rods had notbeen there, the Novak employees would have had no reason to pass by the floor openings.The critical point is that the Secretary neverestablished how long Novak employees had used a route which took them by the flooropenings.\u00a0 The record indicated that Novak was a conscientious employer whocomplained to the general contractor when its employees were exposed to unsafe conditions.[[3]]\u00a0 Given the concern Novak has shown its employees in the past and the testimonythat conditions at the worksite and the routes Novak employees would use were constantlychanging, it is more likely than not that the particular route used by Novak on the day ofthe inspection was merely temporary.\u00a0 There is no evidence to indicate that Novakemployees were exposed to the floor holes for an amount of time which could have madecomplaints to the general contractor feasible.\u00a0 There is certainly no evidence toestablish that Novak employees were exposed to the open floor holes for ten days or twoweeks as the Secretary seems to assume.Since the Secretary has not established how longNovak employees had passed by the open floor holes, we cannot say, on this record, thatNovak knew or, with reasonable diligence, could have known of the hazard.Therefore, for the foregoing reasons we affirmthat the judge’s vacation of the citation.FOR THE COMMISSIONRAY H. DARLINGEXECUTIVE SECRETARYDATED: JAN 31 1984\u00a0The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[*]] Commissioner Buckley took no part in the decision of this case.\u00a0 Although a new Commissioner possesses the legal authority to participate in pendingcases, participation is discretionary and is not required for the agency to take officialaction.\u00a0 Perini Corp., 78 OSAHRC 43\/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD ?22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine’s separate opinion).\u00a0 See? 12(f) of the Act, 29 U.S.C. ? 661(e).\u00a0 Chairman Rowland and Commissioner Clearyreached agreement on the disposition of this case prior to the assumption of office ofCommissioner Buckley.\u00a0 Participation by Commissioner Buckley would therefore have noeffect on the outcome of the case and would delay the issuance of the decision.\u00a0 Accordingly, in the interests of efficient decision-making, Commissioner Buckleyelects not to participate in this case.[[1]] 29 C.F.R. ? 1926.500(b)(1) requires(b) Guarding of floor openings and floor holes.(1) Floor openings shall be guarded by a standard railing and toeboards or cover, asspecified in paragraph (f) of this section.\u00a0 In general, the railing shall beprovided on all exposed sides, except at entrances to stairways.[[2]] Because the citation is being vacated onother grounds, Chairman Rowland does not reach the issue of whether Novak employees wereexposed to the unguarded floor holes where employees were observed walking within threefeet of the openings.[[3]] The citation presently before theCommission is the only alleged serious violation for which Novak was cited.\u00a0\u00a0”