“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14899 OTIS ELEVATOR CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 19, 1980DECISIONBEFORE CLEARY, Chairman, BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thisis a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678(?the Act?). A decision of Administrative Law Judge Edward V. Alfieri is beforethe Commission for review under section 12(j) of the Act, 29 U.S.C. ? 661(i).Judge Alfieri concluded that Otis Elevator Co., Respondent, committed twononserious violations of the Act by failing to comply with 29 C.F.R. ??1926.100(a) (Citation No. 1, Item No. 1) and 1926.50(d)(1) (Citation No. 1,Item No. 5 as amended sua sponte by the judge in his decision). He assessedpenalties of $70 and $55, respectively. The judge vacated the three remainingitems in Citation No. 1. In addition, the judge affirmed Citation No. 2 to theextent that it alleged a serious violation based on noncompliance with section1926.28(a), but he vacated that portion of the citation characterizing theviolation as repeated. He assessed a penalty of $800.??????????? Weaffirm the judge?s disposition of Citation No. 1, Item No. 1 and Item No. 5 asamended. We also affirm the judge?s disposition of Citation No. 2. However, ourreasons for concluding that the violation alleged in Citation No. 2 was notrepeated differ from those enunciated by the judge.I??????????? OnJuly 21, 1975,[1]two compliance officers, Tomich and Appleman, from the Occupational Safety andHealth Administration [OSHA] inspected a multi-employer worksite in Tarrytown,New York where a pumping station was under construction. The pump houseconsisted of one ground level and two basement levels. At the time of theinspection, the building had progressed to a point where the walls were up, theroof was on, and the exterior work had been completed. However, much of thework on the structure?s interior was not yet finished. As a result of theinspection, Respondent was issued two citations. Citation No. 1 alleged fivenonserious violations. In Item Nos. 1 and 5, the Secretary allegednoncompliance with sections 1926.100(a) and 1926.50(d)(2), respectively.Proposed penalties were $70 and $55, respectively. Citation No. 2 alleged arepeat serious violation for failure to comply with section 1926.28(a). A penaltyof $3,200 was proposed for Citation No. 2.??????????? Respondentfiled a notice of contest challenging all six alleged violations. In responseto the Secretary?s complaint, Respondent filed its answer which generallydenied the alleged violations and also presented an ?affirmative defense? toeach item in Citation No. 1 except Item No. 1.??????????? Atthe beginning of the hearing, the Secretary moved to withdraw Item Nos. 2 and 3in Citation No. 1 as well as their respective proposed penalties. Judge Alfierigranted the motion.??????????? Followingthe issuance of the judge?s decision the Secretary filed a petition fordiscretionary review in which he takes exception to the judge?s determinationthat the serious violation based on noncompliance with section 1926.28(a) wasnot repeated. Commissioner Barnako directed review on the issue raised in theSecretary?s petition for review. Former Commissioner Moran directed review forerror to determine whether the judge?s findings and conclusions were justifiedby the record. The Secretary then submitted a letter stating that, in lieu offiling a brief on review, he relies on the arguments presented in his petitionfor review. Respondent subsequently filed a letter stating that, instead ofsubmitting a brief on review, it relies on the issues and law presented in itspost-hearing brief[2]and the judge?s decision. Accordingly, the following are before us on review:Citation No. 1, Item No. 1 and Item No. 5 as amended, and Citation No. 2.[3]II??????????? Respondenthad two employees at the worksite?a foreman, Lomiento, and his helper, Seipel.On the morning of the inspection, Lomiento and Seipel were lowering an elevatorcylinder from the top floor, or grade level, of the pumpint station to thelower of the two basement levels. The cylinder was approximately 21 feet longand weighed 1,400 pounds. The two employees attached the cylinder to a chainfall, a hoist device belonging to Respondent. The employees then lowered thecylinder one flight down the stairway to the intermediate landing. During theafternoon, Lomiento and Seipel hand carried elevator equipment and parts fromthe general contractor?s shanties or trailers, where the equipment had beentemporarily stored, into the pumping station building. They placed the materialon each of the three levels at or near the floor?s shaftway opening, with thegrade level receiving most of the material.??????????? Thecompliance officers held an opening conference with the general contractor andthen proceeded with their inspection while accompanied by the generalcontractor?s superintendent.??????????? A.Citation No. 1, Item No. 1??????????? ItemNo. 1 in Citation No. 1 alleged that Respondent failed to comply with section1926.100(a)[4]in that:Employees observed working in areas ofthis job site where there was a possible danger of head injury from impact, orfrom falling or flying objects, electrical shock and burns, and were notprotected by hard hats.???????????? Tomichand Appleman were the only two witnesses presented by the Secretary at thehearing.[5] Tomich testified that,while looking for the general contractor?s trailer upon arrival at the worksitethe morning of July 21, they saw as yet unidentified personnel not wearing hardhats. When they started their inspection following an opening conference withthe general contractor, they observed two workers who were not wearing hardhats entering and leaving the pumping station. The general contractor?ssuperintendent, who accompanied the compliance officers during theirinspection, told them that those employees worked for Respondent, and hesummoned foreman Lomiento. An opening conference with Lomiento was then held,at which time Lomiento told the compliance officers that their hard hats werein the ?job truck,? which was at the jobsite.??????????? Afterlunch, the compliance officers entered the pumping station where they sawoverhead electrical work being done, which involved dropped pendants. Tomichnoted that the temporary lighting was sometimes low, thus presenting the hazardthat an employee could suffer injury by striking his head.??????????? Theysaw that, at grade level, a four-or five-foot wide walkway formed the perimeterof a stairway opening approximately 20 feet by 20 feet. The opening was in thecenter of the floor. The walkway they observed was obstructed with materials,including wood debris with protruding nails. Inasmuch as Respondent?s twoemployees were working at the next lowest level while lowering the elevatorcylinder down the stairway that morning, Tomich contended that the employeeswere exposed to the hazard of head injury from material being kicked or knockedover the edge of the walkway. Tomich further noted that materials and toolswere stored in the stairwell that led from the grade level to the two lowerlevels. Tomich stated that, because of the absence of a toeboard, Respondent?semployees working below were exposed to the hazard of head injury from objectsfalling from the stairwell.??????????? Bothof Respondent?s witnesses, Lomiento and Seipel, denied seeing or meeting withthe compliance officers on the morning of July 21. Both witnesses also deniedthe allegation that they were working in the building that morning withoutwearing hard hats.??????????? Inthat part of his decision immediately preceding his discussion of each allegedviolation Judge Alfieri stated that, given the conflicting testimony of thewitnesses for the two parties, the question of witness credibility wasparamount in disposing of this case. The judge said that he ?carefullyscrutinized? the evidence. He further noted that, in making his credibilitydeterminations, he considered the demeanor of the witnesses and their interestin the outcome of the trial.??????????? Withregard to this particular item, the judge expressly credited the testimony ofthe compliance officers. He noted that their testimony established thatRespondent?s employees were not wearing hard hats during the morning of theinspection as charged. He stated that the Secretary further proved thatRespondent?s employees, in going in and out of the building during the courseof their work, would have occasion to pass through an area with low-hangingtemporary lighting, thus being exposed to the hazard of head injury. Consistentwith the Secretary?s evidence, the judge also found that Respondent?s employeeswere exposed to the hazard of head injuries from falling materials and debriswhile they were working at the first and second lower levels.??????????? JudgeAlfieri noted that, in accordance with Gilles & Cotting, Inc., 76OSAHRC 30\/D9, 3 BNA OSHC 2002, 1975?76 CCH OSHD ?20,448 (No. 504, 1976), and PublicImprovements, Inc., 76 OSAHRC 140\/E8, 4 BNA OSHC 1864, 1976?77 CCH OSHD ?21,326 (No. 1955, 1976), the Secretary need not show actual employee exposure,but rather he must prove only that Respondent?s employees have access to thehazard at issue and can reasonably be expected to come into danger, consideringsuch factors as the nature of the work performed, the activities and movementsrequired by the work, and the routes of approach to and departure from workareas. The judge thus concluded that the Secretary sustained his burden ofproof and assessed that $70 penalty proposed by the Secretary.??????????? Onreview, Respondent relies upon the same contention raised before the judge,arguing only that the citation item and penalty should be vacated because theSecretary failed to sustain his burden of proof by a preponderance of theevidence. We reject Respondent?s factual contention and affirm the judge. Thejudge clearly set forth his analysis of the evidence. We conclude that heproperly considered the evidence of record and the arguments of both parties.??????????? ??It is the policy of the Commission toordinarily accept an Administrative Law Judge?s evaluation of the credibilityof witnesses, . . . for it is the Judge who has lived with the case, heard thewitnesses, and observed their demeanor.? C. Kaufman, Inc., 78 OSAHRC3\/C1 at C7?8, 6 BNA OSHC 1295 at 1297, 1977?78 CCH OSHD ? 22,481 at p. 27,099(No. 1429, 1978). We accept Judge Alfieri?s finding that the Secretary?switnesses gave the more credible testimony. C. Kaufman, Inc., supra. Wetherefore adopt the judge?s factual determinations and conclusions of law, andwe affirm Item No. 1 in Citation No. 1. See Gulf Oil Co., 77 OSAHRC216\/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ?22, 737 (No. 14281, 1977). Due to thelow gravity of this violation, we agree with the judge that a penalty of $70 isappropriate.??????????? B.Citation No. 1, Item No. 5??????????? InItem No. 5 of Citation No. 1, the Secretary alleged that Respondent did notcomply with section 1926.50(d)(2),[6] charging it with:Failure to provide first aid kit andsupplies approved by a consulting physician for the type work and exposuresthat this job presents. The said supplies shall be checked at least weekly oneach job site.???????????? Inits answer, Respondent raised what it characterized as the ?affirmativedefense? that either Lomiento or Seipel ?had and carried with him a first-aidkit and supplies approved by a consulting physician? for their type of work.??????????? Tomichtestified at the hearing that, in response to his request at the openingconference for production of the requisite first-aid kit, Lomiento told himthat he did not have one on the job or in his truck and that he relied mainlyon the general contractor?s first-aid kit. Tomich further testified that, incalculating a penalty for the violation, he considered that the worksite was ina remote area of Tarrytown, therefore lacking proximity to the local hospital.??????????? Lomientotestified that he did not have a first-aid kit on the morning of July 21, buthe knew that Seipel had one in his car. He stated that he had been issued afirst-aid kit, but that he had lost it. On cross-examination, Lomientotestified that he told Tomich that Seipel had a first-aid kit.[7] Both of Respondent?semployees testified that their personal safety equipment was carried in theirtrucks or cars because Respondent did not maintain a work shanty at the smalljobsite.??????????? Inhis post-hearing Memorandum of Law, the Secretary argued that Respondent failedto comply with section 1926.50(d)(2), which, according to the Secretary,requires that an approved first-aid kit must be kept on every job. He statedthat the testimony indicated that Respondent?s employees maintained so such kitat the jobsite.??????????? Inhis decision, Judge Alfieri sua sponte amended the citation item, pursuant toFed. R. Civ. P. 15(b), to allege noncompliance with what he considered to bethe more applicable standard, section 1926.50(d)(1).[8] He explained thatRespondent came prepared to and did present relevant defenses to the allegedabsence of a first-aid kit. The judge noted that the underlying facts uponwhich the alleged violation is based are the same, just as the ultimate issueis the same. He thus concluded that alleged noncompliance with section1926.50(d)(1) was tried by implied consent. The judge stated that, in theabsence of a showing of prejudice, the pleadings were thereby amended to allegenoncompliance with section 1926.50(d)(1).??????????? JudgeAlfieri expressly found the Secretary?s evidence to be more credible thanRespondent?s. He stated that the Secretary established that Respondent did nothave a first-aid kit available on the jobsite and thereby did not comply withsection 1926.50(d)(1). He assessed the proposed penalty of $55.??????????? AgainRespondent?s contention on review is the same as that argued before the judge,i.e., the citation and penalty should be vacated because the Secretary did notmeet his burden of proof by a preponderance of the evidence.[9] We reject Respondent?sfactual argument and affirm the judge. The judge clearly set forth hisevaluation of the evidence and analysis. We conclude that he properlyconsidered the evidence of record and the contentions of both parties. Weaccept the judge?s finding that the testimony of the Secretary?s witnesses wasmore credible than that of Respondent?s witnesses. C. Kaufman, Inc., supra. Wetherefore adopt Judge Alfieri?s factual determinations and conclusions of law.We affirm Citation No. 1, Item No. 5 as amended. See Gulf Oil Co.,supra. We consider the $55 penalty assessed by the judge to be appropriategiven the low gravity of the violation.III??????????? Citation No. 2 alleged thatRespondent failed to comply with section 1926.28(a)[10] in that:Employee observed working in the gradelevel elevator shaft and not wearing a safety belt or other equivalentprotection. The shaft opening at the next lower basement level was not fullyplanked over. A minimum drop of 16 feet would result.?The employer is responsible for requiring thewearing of appropriate personal protective equipment in all hazardousconditions.???????????? Tomichtestified at the hearing that early in the afternoon on the inspection date,while he was on the grade level a few feet from the shaftway, he saw Lomientoin the elevator shaft. Tomich stated that Lomiento was not wearing a safetybelt or other protective gear and that he was standing on what Tomich believedwas a structural member, such as structural iron or a plank. There were no doorbucks installed, nor was there any protection on the face of the elevatorshaft. According to Tomich, Lomiento told him that he was working on the cablesand that the safety belt issued to him by Respondent was at his home ratherthan at the worksite. Tomich testified that Lomiento told him that neither henor his helper would continue to work without their safety belts and thatLomiento then did stop working in the shaft. Tomich also stated that theelevator shaft opening at the grade level was not planked over, and that, atthe next lower level, about 70% of the shaft opening was covered by plankingthat was not tightly laid. The distance between each of the three levels wasabout 16 feet.??????????? Tomichstated that the openings at the grade level and first basement level shouldhave been fully planked over to prevent an object or person from fallingthrough to a lower level. He concluded that Lomiento was exposed to a fall ofapproximately 16 feet from the grade level to the first basement?s floor or afall of about 30 feet from the grade level, through the inadequately plankedfirst basement?s floor, to the second basement?s floor. Tomich characterizedthe violation as serious because death or serious physical harm could resultfrom a fall.??????????? Atthe hearing, both Lomiento and Seipel denied that they had entered the elevatorshaftway on the inspection date. Furthermore, Seipel testified that he hadworked with Lomiento all that day and never observed him in the shaftway. Bothwitnesses stated, however, that they observed the condition of the shaftway atboth the grade and first basement levels while they were working near theshaftway earlier that day. Lomiento testified that the shaftway at each floorlevel was planked over except for no more than 10 inches on each side, throughwhich the guiderails came.[11] He said that the generalcontractor had laid the planking some days before the inspection date. Lomientotestified that he had a safety belt or lanyard supplied by Respondent in histruck on the day of the inspection. He denied telling Tomich that his safetybelt was at home. Lomiento testified that he received safety equipment, alongwith instructions and literature on safety, from Respondent free of charge.??????????? Seipeltestified that the shaftway at the grade level and the first basement level hadbeen almost entirely planked, with 4 feet by 8 feet plywood panels placed overthe planking. He stated that an open space of about 10 inches was on the rightand left sides of the shaftway where the guiderails came up. Seipel testifiedthat he had a safety belt issued by Respondent in his car on the inspectiondate.??????????? Afterconsidering the demeanor of all the witnesses and their interest in the case?soutcome,[12]Judge Alfieri concluded that the Secretary?s witnesses gave the more credibleand persuasive testimony. The judge found that the evidence demonstrated thefollowing facts: Lomiento and Seipel did not have safety belts or equivalentprotective equipment at the jobsite; Lomiento was in the elevator shaft withoutwearing any safety gear; and the elevator shaft was not fully protected.??????????? Respondentcontends on review that the Secretary failed to prove by a preponderance of theevidence that it did not comply with section 1926.28(a).??????????? Weaccept Judge Alfieri?s determination that the Secretary?s witnesses gave themore credible testimony. C. Kaufman, Inc., supra. We therefore adopt hisfinding that Lomiento was in the partially unprotected elevator shaft withoutwearing any safety equipment. In determining if a ?hazardous condition? undersection 1926.28(a) exists, the critical question is whether a reasonable personfamiliar with the factual circumstances surrounding the allegedly hazardouscondition, including facts unique to a specific industry, would recognize ahazard warranting the use of personal protective equipment. Industry custom andpractice is relevant but not conclusive. S & H Riggers and Erectors, Inc.,79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979), appealfiled, No. 79?2358 (5th Cir. June 7, 1979). The judge?s affirmance of thiscitation is consistent with our holding in S & H Riggers, supra.[13] No evidence specificallyrelating to industry custom was offered at the hearing. Based on the testimonyof the witnesses, we conclude that a reasonable person would recognize thatworking in the elevator shaft at issue, which was only partially protected,posed the hazard of falling 16 to 30 feet, thereby warranting the wearing of asafety belt or equivalent protection.??????????? Thecitation and complaint alleged that the violation was serious under section17(k) of the Act, 29 U.S.C. ? 666(j).[14] Tomich testified that theviolation should be characterized as serious because an employee could sufferdeath or serious physical harm as a result of a fall of 16 to 30 feet down theelevator shaftway.??????????? JudgeAlfieri concluded that Respondent?s noncompliance with section 1926.28(a) was aserious violation based in part on Tomich?s testimony. The judge determinedthat Respondent knew or should have known of the hazardous condition in theelevator shaftway because of the nature of the work performed by Respondent?semployees. The judge noted that Respondent issued safety belts to itsemployees, but inadequately enforced its safety program to assure that safetybelts are worn when the circumstances so warrant.??????????? ?We agree with the judge that the violation wasserious for the reasons he gave. In addition:There can be little doubt that the hazardof a fall is a hazard well known in the construction industry and that safetybelts are commonly provided and attached to structures or secured lifelines asprotection against this hazard.PPG Industries, Inc.,77 OSAHRC 196\/E5 at Ell n. 10, 6 BNA OSHC 1050 at 1052 n. 10, 1977?78 CCH OSHD?22,344 at p. 26,930 n. 10 (No. 15426, 1977), petition denied, No.77?2608 (3d Cir. September 11, 1978), quoting Hoffman Construction Co.,75 OSAHRC 31\/E12 at F1, 2 BNA OSHC 1523 at 1525, 1974?75 CCH OSHD ?19,275 at p.23,052 (No. 644, 4975), rev?d on other grounds sub nom. Hoffman ConstructionCo. v. OSHRC, 546 F.2d 281 (9th Cir. 1976).??????????? ?Repeat?Characterization??????????? Thecitation and complaint further alleged that the violation was repeated undersection 17(a) of the Act, 29 U.S.C. ? 666(a).[15] At the hearing, theparties stipulated that a number of citations were issued to Respondent fornoncompliance with section 1926.28(a).[16] No copies of thesecitations were offered into evidence. In response to the Secretary?s request atthe hearing, the judge gave the Secretary permission to submit more particularinformation about some of the citations to which the parties had stipulated.The Secretary subsequently filed an explanatory letter, which became part ofthe record.??????????? JudgeAlfieri concluded that this serious violation was not repeated. He set forththe two elements that he considered necessary in order for a violation to bedeemed repeated: 1) the Secretary must establish that Respondent had previouslyfailed to comply with the same standard and that those violations became finalorders, and 2) the record must show, in accordance with Bethlehem SteelCorp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), that the violation wascommitted in a way that ?flaunts? the Act?s requirements.??????????? Withregard to the first element, the judge noted that the record established thatRespondent had failed to comply with section 1926.28(a) on five previousoccasions. He stated that some of the violations became final orders before theinspection in this case, while others became final orders after the inspectionbut before the hearing on this case. Based on those violations that he believedbecame final orders before the inspection here, the judge determined that thefirst test had been met.??????????? However,Judge Alfieri concluded that the second test had not been met. He quoted thatportion of General Electric Co., 75 OSAHRC 50\/A2, 3 BNA OSHC 1031,1974?75 CCH OSHD ?19,567 (No. 2739, 1975), in which the Commission stated that,in determining if an employer has ?flaunted? the Act?s requirements, each casemust be decided on its own merits with emphasis given to the nature and extentof the violation. In determining whether flaunting occurred, the judgeconsidered the size of Respondent, the safety equipment it supplies to itsemployees, its safety program in general, and the size of the crews working atits jobsites. He concluded that, on the basis of this case?s record, noflaunting by Respondent was shown, and therefore the violation was notrepeated.??????????? TheSecretary argues on review the judge erred in not concluding that Respondent?snoncompliance with section 1926.28(a) was a repeated violation. The Secretarystates that the record established that the violation in this case involvedconditions similar to those in the five earlier violations, i.e., each of theseviolations resulted from Respondent?s failure to require its employees to usesafety belts or equivalent protection when working inside unprotected elevatorshafts. The Secretary further notes that each violation involved the samegeneral hazard, i.e., a fall down the elevator shaft to a lower level. TheSecretary expresses his disagreement with the court in Bethlehem Steel Corp.v. OSHRC, supra, and urges the Commission to reject that decision.??????????? In PotlatchCorp., 79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ? 23, 294 (No. 16183,1979), we held that ?(a) violation is repeated under section 17(a) of the Actif, at the time of the alleged repeated violation, there was a Commission finalorder against the same employer for a substantially similar violation.?[17] Under Potlatch Corp.,in a case such as the instant one in which the Secretary alleges a repeatviolation due to noncompliance with a specific occupational safety or healthstandard, the Secretary can make a prima facie showing of substantialsimilarity by establishing that the previous and present violations resultedfrom noncompliance with the same standard. This prima facie showing may berebutted by evidence of disparate conditions and hazards associated with theviolations of the same standard.??????????? Afterexamining the evidence in this case, we conclude that the violation is notrepeated because the Secretary failed to prove that any of the six citations towhich the parties stipulated at the hearing had become final orders by July 21,1975, the date of the alleged repeated violation.[18]??????????? Wetherefore affirm Citation No. 2 insofar as it alleges a serious violation ofthe Act based on noncompliance with section 1926.28(a). We assess a penalty of$800 in view of the gravity of the violation.IV??????????? Accordingly,it is ORDERED that Item No. 1 of Citation No. 1 is affirmed; as amended, ItemNo. 5 of Citation No. 1 is also affirmed. We assess penalties of $70 and $55,respectively. We affirm Citation No. 2 to the extent that it alleges a seriousviolation, and we assess a penalty of $800.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 19, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14899 OTIS ELEVATOR CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 7, 1977Appearances:Francis v. Laruffa, Regional SolicitorUnited States Department of Labor1515 Broadway, Room 3555New York, New York 10036Attorney for complainant by Stephen D.Dubnoff, Esq., of counsel\u00a0Commette Quencer & Annunziato60 East 42nd StreetNew York New York 10017Attorney for respondent by Emil R.Annunziato, Esq., of counsel?DECISION AND ORDERAlfieri, Judge:??????????? Thiscase presented difficult questions of law and fact. Able counsel representedboth parties.STATEMENT OF THE CASE??????????? Thiscase arises under section 10(c) of the Occupational Safety and Health Act (29U.S.C. 651, et seq.) involving a nonserious citation and a repeat seriouscitation resulting from a July 21, 1975[19] inspection conducted bythe Secretary of Labor (complainant) at the Otis Elevator?s (respondent)workplace, the construction site of a pumping station, Tarrytown, New York.??????????? Thecitations were issued August 18, 1975 and were timely contested by respondent.??????????? Citationnumber 1, nonserious, alleged respondent violated five named standards relatingto the use of personal protective equipment, posting, removal of guardrails andavailability of an approved first aid kit. Respondent?s affirmative defensestates that the railing was removed in order to allow equipment to be broughtto the workplace.[20]??????????? Seriousrepeat citation number 2 alleged respondent violated the standard relating tothe use of safety belts or the equivalent. Respondent?s answer contained noaffirmative defenses to this charge. The allegation was denied.??????????? Atthe hearing, held in New York City, New York, the complainant moved to vacatethe alleged posting violations, items numbered 2 and 3 of citation number 1 andfurther moved to amend both citations by deleting July 22, 1975 as aninspection date. Both motions, unopposed, were granted.??????????? Theparties stipulated that the respondent, the largest elevator manufacturingcompany in the United States, is engaged in a business that affects commerce,it employs 12,000 people. Two employees were at the subject worksite.??????????? Itwas further stipulated that respondent has been previously in violation of 29CFR 1926.28(a) in Commission cases numbered 1184, 16178, 15427 and one otherinstance not contested by the respondent.[21]??????????? Thestandards allegedly violated and the descriptions of the alleged violationsremaining in issue follow.Citation number 1?nonserious? Item number 1?The standard 29 CFR 1926.100(a), entitledHead Protection, requires that:(a) Employees working in areas where thereis a possible danger of head injury from impact, or from falling or flyingobjects, or from electrical shock and burns, shall be protected by protectivehelmets.???????????? Theviolation reads:Employees served working in areas of thisjob site where there was a possible danger of head injury from impact, or fromfalling or flying objects, electrical shock and burns, were not protected byhard hats.???????????? Theproposed penalty is $70.00 and immediate abatement was required.??????????? Itemnumber 4??????????? Thestandard 29 CFR 1926.500(e)(1)(ii) relating to stairway railings and guardsrequires that:(1) Every flight of stairs having four ormore risers shall be equipped with standard stair railings or standardhandrails as specified below, the width of the stair to be measured clear ofall obstructions except handrails.(ii) On stairways less than 44 inches widehaving one side open, at least one stair railing on the open side;\u00a0??????????? Theviolative condition is described as:Failure to replace the removable standardstair railings on the main stairway on grade level leading to the firstbasement level. This stairway is the primary means used by all trades to get tothe lower levels. Every flight of stairs having four or more risers shall beequipped with standard stair railings at all times.???????????? Theabatement was to be immediately taken care of and a penalty of $160.00 isproposed.??????????? Itemnumber 5??????????? Therespondent is charged with:?Failure to provide first aid kit andsupplies approved by a consulting physician for the type work and exposuresthat this job presents. The said supplies shall be checked at least weekly oneach job site.????????????? It isalleged that such failure is in violation of 29 CFR 1926.50(d)(2) whichrequires that:(2) The first-aid kit shall consist ofmaterials approved by the consulting physician in a weatherproof container withindividual sealed packages for each type of item. The contents of the first-aidkit shall be checked by the employer before being sent out on each job and atleast weekly on each job to ensure that the expended items are replaced.???????????? Theabatement date was August 26, 1976 and a penalty of $55.00 is proposed.??????????? Citationnumber 2?repeat serious??????????? Thecited standard 29 CFR 1926.28(a) relating to personal protective equipmentreads:(a) The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards to theemployees.?The alleged violation is described asfollows:\u00a0Employee observed working in the gradelevel elevator shaft and not wearing a safety belt or other equivalentprotection. The shaft opening at the next lower basement level was not fullyplanked over. A minimum drop of 16 feet would result.???????????? Immediateabatement was required and the penalty proposed is $3,200.00.ISSUES??????????? 1.Whether respondent violated the standard 29 CFR 1926.28(a) and if so is it arepeat violation.??????????? 2.Whether respondent violated the standards 29 CFR 1926.100(a), 29 CFR1926.500(e)(1)(ii) and 29 CFR 1926.50(d)(2).??????????? 3. Ifthe respondent did violate any of the standards what penalties, if any, areappropriate.SUMMARY OF THE EVIDENCE??????????? Complainant?scase??????????? TheSecretary produced two witnesses, John Tomich and Nathan Appleman, complianceofficers employed by the Occupational Safety and Health Administration.[22] Tomich testified thatwith his co-worker he arrived at the jobsite on July 21, 1975 between 9:15 and9:30 a.m. (Tr. 35). While looking for the general contractor?s trailer theyobserved personnel around the jobsite not wearing hard hats. No identificationof the personnel was obtained at this time (Tr. 11). An opening conference washeld in the general contractor?s tractor?s trailer (Tr. 12). trailer (Tr. 12).superintendent for the general contractor, the compliance officers commencedtheir inspection of the jobsite. At this time they noted personnel entering andleaving the pumping station not wearing hard hats. The superintendent for thegeneral contractor acknowledged that the employees so noted worked for Otis, atwhich time the ?foreman?, identified as James Lomiento, was summoned (Tr. 13).After conferring with Lomiento and announcing to him that they were conductingan OSHA inspection, an opening conference was held with the Otis employees inthe general contractor?s trailer (Tr. 14). Tomich testified that he was told byLomiento that the hard hats were in their job truck which was at the jobsite(Tr. 15). Tomich further testified that he questioned Lomiento with respect toa first-aid kit and was advised that Lomiento did not have one and relied onthe first-aid equipment of the general contractor (Tr. 19).??????????? Atthis time the inspection terminated for a lunch break. In the afternoon thecompliance officers continued with their inspection and entered the pumpingstation itself. Tomich observed in the interior of the building that overheadelectrical work was being done with temporary dropped pendants and ?thetemporary lighting is sometimes low . . .? (Tr. 16). A worker could strike hishead and according to Tomich be injured. At the grade level a four or five footpassageway was a perimeter walkway around a 20 by 20 foot opening in the centerof the floor. The walkway was obstructed by materials and wood debris withprotruding nails. Tomich expressed the view that falling debris and othermaterials could hit a man working below (Tr. 17). Respondent?s material was atthe level below (Tr. 17, 19).??????????? Uponentering, Tomich also noted a stairwell leading from the ground or first floorto the two sub-level floors. The stairwell at the ground level did not have astandard railing. Tomich further testified that he noted what purported to beelevator equipment on the stairway itself. Tomich further stated that at theintermediate platform, which was one landing down, the railing had also beenremoved. The superintendent for the general contractor claimed the railings hadbeen removed by Otis employees to enable them to bring materials into thebuilding (Tr. 21, 22). At this time, which was about 1:40 p.m., Tomich soughtout Lomiento. He testified that he found him in the grade level elevator shaftpurportedly working on cables and not wearing a safety belt or other protectiveequipment (Tr. 22, 23, 25). Tomich testified that he was told by Lomiento thathis safety belt was at home (Tr. 25). Tomich further testified that he examinedthe elevator shaftway which was not completely planked over at the grade levelopening or at the first basement level, a drop of 16 feet (Tr. 26, 27). At theconclusion of the day no conference was held with the employees of Otis.??????????? Thefollowing day, July 22, Tomich testified, sometime around 9 o?clock in themorning, he was proceeding to the Tarrytown Railroad Station to pick up hisco-worker, at which time he noted Lomiento in his car driving to the worksite.Tomich alleged that Lomiento was unaware of his presence in the area. They didnot converse (Tr. 52). At the conclusion of the inspection on July 22nd, therewas no closing conference with Otis. Tomich alleged that Otis employees hadleft the jobsite during the day and it was impossible to hold a closingconference (Tr. 52).??????????? Relativeto the failure to wear hard hats the compliance officer foresaw the hazard ofhead injuries from low hanging temporary lighting and falling tools and debris.With regard to the absence of the guardrail the potential hazard was trippingover debris and falling down the stairwell 8 or 9 feet to an intermediate leveland further to a lower level. The remoteness of the area was considered inreference to the lack of a first aid kit.??????????? Inarriving at the proposed penalties for items numbered 1, 4 and 5 of thenonserious citation the compliance officer considered the likelihood, extentand severity of the potential injuries. Ten percent credit was given for sizeand ten percent for good faith. Because of prior citations and violations underthe Act, no credit was given for history.??????????? Directinghis testimony to the serious citation, the use of safety belts or theequivalent, Tomich considered the gravity of the violation to be very high andforesaw the resulting accident as causing death or serious physical harm.Giving consideration to size and good faith, a credit of 20% was allowed?nonefor history?a penalty of $800.00 was arrived at. However, according to Tomich,this was considered to be a second repeat violation. Therefore the penalty wasmultiplied by 4 and the final proposed penalty of $3,200.00 was arrived at.??????????? Respondent?scase??????????? Otisproduced two witnesses, James Lomiento, an elevator mechanic employed by Otisfor 19 years (Tr. 53) and Robert Seipel, construction helper employed by Otisfor 6 1\/2 years (Tr. 79). The testimony of both witnesses was substantiallysimilar. In the morning of July 21st they were advised by the superintendentfor the general contractor that on OSHA inspection was imminent (Tr. 64). At notime during that morning did they see or were they confronted by OSHAcompliance officers. During the noon break, at about 12:15, while eating theirlunch at a spot approximately 100 feet from the building, they were confrontedby two men, whom they later learned to be Tomich and Appleman, who asked fordirections to the general contractor?s trailer (Tr. 61).??????????? Duringthe morning of July 21st the two employees were involved in moving an elevatorcylinder from its storage location into the building and eventually to thesecond sub-basement. This cylinder was approximately 21 feet long and weighed1,400 pounds. Once the cylinder had been moved from its storage spot to theentrance to the building by equipment of the general contractor, it was the jobof the two Otis employees to lower the cylinder into its resting place in thesecond sub-basement. While the building contained a crane or hoist, it wasinoperative because electricity had not as yet been furnished to the building(Tr. 68). Therefore, it was necessary to use Otis equipment consisting of achain fall (Tr. 59). The cylinder was hooked to the chain fall and then moveddown the first stairway to the intermediate landing. This stairway was soconstructed so that the right side was against the building wall and the leftside was open, with a temporary wooden railing. The witnesses testified that atno time did they remove this railing (Tr. 69, 84). According to Lomiento at theintermediate landing it was physically impossible to swing this twenty-one footlong cylinder around so it was necessary to temporarily remove the railing atthe landing and lower the cylinder to the next floor. Since the floors wereapproximately 16 feet apart and the cylinder was 21 feet in length, once it hadbeen landed, the top end extended over the intermediate landing (Tr. 60, 62). Atthis time the Otis employees broke for lunch.??????????? Afterlunch the Otis employees were requested by the general contractor to remove theremaining elevator equipment and parts which were temporarily stored in variousshanties or trailers of the general contractor. For the remainder of theafternoon Lomiento and Seipel hand carried this equipment into the building,storing it at the various levels or near the openings into the shaftway (Tr.71, 87, 88). Lomiento and Seipel deny entering the elevator shaftway on July21st. Lomiento stated on direct and cross-examination that at no time duringthe work day of July 21st was he in the elevator shaftway. Seipel stated thathe was working with Lomiento all day and never observed him in the shaftway(Tr. 72, 88).??????????? Lomientotestified that flooring had been laid in the shaftway some days before July21st by the general contractor. This consisted of placing planking and thenplywood sheets in the shaftways to make a floor. The only openings wereapproximately 10 inches wide and located on the right and left sides of theshaftway. The witnesses testified that as they loaded or stored the materialduring the afternoon of July 21st they were close enough to note the shaftwaysand the fact that they were as previously described, that is, completelyfloored with only two 10-inch openings, one on either side (Tr. 64, 65, 88,89).??????????? Bothwitnesses denied seeing or talking to the compliance officers in the morningand specifically disputed having a pre-inspection conference in the generalcontractor?s trailer (Tr. 62, 86). Both witnesses denied working in thebuilding without hard hats (Tr. 86). Lomiento admitted that in the afternoonwhile he was talking to the compliance officers he removed his hard hat inorder to mop his brow. The temperature on July 21st was in excess of 90o (Tr.72, 73).??????????? Lomientotestified that his first-aid kit had been lost but he knew that his co-worker,Seipel, had one in his work truck (Tr. 72). On cross-examination he said hetold Tomich he had a first aid kit and later testified he told Tomich Seipelhad the kit (Tr. 77). Since this was a small jobsite, Otis did not maintain awork shanty. Both employees testified that all of their work equipment,including hard hats, safety belts and lanyards and other tools, were carried intheir vehicles (Tr. 58, 59).??????????? Seipeltestified that at the end of the work day on July 21st he inquired of Tomich asto whether or not the compliance officers had found any violations against Otisand the answer was in the negative (Tr. 92).??????????? Lomientotestified that on July 22nd at about 7:30 approximately a fifth of a mile fromthe jobsite and adjacent to the railroad station while stopped in his car, hewas approached by Tomich who was coming out of the jobsite and given a warning.Both Otis witnesses testified that they were at the jobsite for the entire dayof July 22nd and had talked to Tomich at some time during that day (Tr. 66, 67,92, 93).DISCUSSION??????????? Weare confronted with a record replete with conflicting testimony of opposingwitnesses. Thus paramount in this case is the question of credibility and thereliability of the witnesses who testified and the weight which should be givento the testimony of each witness.??????????? Theevidence has been carefully scrutinized. The demeanor of the witnesses and theinterest they may have in the result of the trial have been considered inweighing their evidence and in determining how far, or to what extent, if atall, it is worthy of credit.??????????? Section5(a)(2) of the Act (29 U.S.C. 654(a)(2)), commonly referred to as the ?specialduty clause? obligates an employer to comply with the occupational safety andhealth standards promulgated under the Act. The Administrative Procedure Act, 5U.S.C. 556(d) puts the onus of proving alleged violations of the OccupationalSafety and Health Act upon the complainant.??????????? Citationnumber 1, item number 1??????????? Thecomplainant alleged that respondent?s employees were observed without hard hatsworking in an area where they could possibly sustain head injuries. Respondent deniesit.??????????? Icredit the testimony of complainant?s compliance officers. That evidencedemonstrates that the respondent?s employees, Lomiento and Seipel were notwearing their hard hats during the forenoon as charged.??????????? Complainant?sevidence further demonstrated that respondent?s employees, in the course oftheir work, when going in and out of the building would have occasion to passthrough the area that had low overhead temporary lighting and thus be exposedto head injuries. Further respondent?s employees were working at the first andsecond lower levels where they were exposed to head injuries from fallingmaterials and debris.??????????? Complainantneed not prove that employees actually have been exposed prior to or during theinspection. He need only show they have access to the hazards in question andmay reasonably be expected to come into danger considering such factors as thenature of the work to be performed, activities and movements required duringthe work, and routes of approach to and departure from work areas. Secretaryv. Gilles and Cotting, Inc., No. 504 (February 20, 1976); Secretary v.Public Improvements, Inc., No. 1955 (November 23, 1976). Complainant hassustained the burden of proof.??????????? Citationnumber 1, item number 4??????????? Withrespect to the alleged failure to replace the removable stair railings inviolation of 29 CFR 1926.500(e)(1)(ii) respondent denies removing it.??????????? Respondentreadily admits, however, that it did remove the railing from the intermediatestairway landing[23]and urges the defense that it was not possible for its employees to lower alarge cylinder to the second sub-basement. Impossibility is a valid defense. Secretaryv. Loden & Co. 14 OSAHRC 667, 671 (1974).??????????? Insupport of this defense respondent?s witnesses, experienced elevatorconstruction workers, gave clear, credible, convincing and persuasivetestimony. Their testimony was unrebutted. Thus the record shows that the workcould not be accomplished with the railing in place at the landing. It is nowwell established by Commission rulings that non-compliance with therequirements of an occupational safety and health standard is justified whennecessary to do the work. Secretary v. Setterlin and Sons, No. 7377 (May11, 1976); Secretary v. W. B. Meredith II, Inc., 9 OSAHRC 245 (1974).??????????? Thereremains for disposition, however, whether the respondent?s employees removedthe section of the railing from the side of the stairway which leads down tothe landing area. I am persuaded that they did not.??????????? Thereis no evidence to show that if the railing was in place at the time it wouldhave interfered with the lowering of the cylinder to the sub-basement. If itwould have interfered then it is logical to assume that respondent would haveadmitted removing the railing and included its action in its defense ofimpossibility of performance. It does not appear from the evidence thatrespondent would have any other reason to take that railing down since theother material the respondent?s employees brought into the building from thegeneral contractor?s shanty were small enough to be hand carried down thestairs. Clearly that did not require the removal of the stair rail in question.??????????? Furthermorerespondent?s evidence that at the time an ironworker was preparing the sectionof the stairway in question for the installation of permanent railings wasunrebutted. Lending credence to that testimony is the evidence that the generalcontractor immediately had the railings installed. Considered within thatframework it is reasonable to conclude that the general contractor?s statementmade to compliance officer Tomich referred only to the railings removed fromthe landing area?a fact readily admitted by respondent. Complainant has failedto sustain the burden of proof.??????????? Citationnumber 1, item number 5??????????? Therespondent is charged with violating 29 CFR 1926.50(d)(2) which relates to thecontents of and packaging of medical supplies for a first-aid kit; the type ofcontainer needed for a first-aid kit and the periodic inspection of the kit by theemployer.??????????? Thecomplainant?s evidence, which was more credible than respondent?s showed thatrespondent did not have a first-aid kit available on the jobsite. Its prooftherefore established a violation not of 29 CFR 1926.50(d)(2) as charged butrather 29 CFR 1926.50(d)(1) which reads:First-aid supplies approved by theconsulting physician shall be easily accessible when required.???????????? Complainantdid not ask that, pursuant to Federal Rules of Civil Procedure, 15(b)[24], the pleadings be amendedto conform to the evidence and respondent did not move to dismiss. Respondenthowever came prepared to and did give relevant defenses to the alleged absenceof a first-aid kit. Furthermore the underlying facts upon which the violationis alleged are the same and the ultimate issue is the same. From the foregoingit is concluded that an alleged violation of 29 CFR 1926.50(d)(1) by respondentwas tried by implied consent.??????????? Rule15(b) of the Federal Rules of Civil Procedure permits the adjudicator to amendthe pleadings to conform to the evidence on its own motion. Not only does anadjudicative agency have the right to amend the pleadings on its own motion, ithas an affirmative duty to consider issues raised by the evidence, even if notspecifically pleaded. American Boiler Mfrs. Ass?n v. N.L.R.B., 366 F.2d815, 821 (8th Cir. 1966); Michigan Consol. Gas Co. v. F.P.C., 283 F.2d204, 224 (D.C. Cir. 1960); Underwriters Salvage Co. v. Davis & ShawFurn. Co., 198 F.2d 450, 453 (10th Cir. 1952).??????????? Accordingly,in the absence of any prejudice from such an amendment the pleadings are deemedto conform to the evidence.[25]??????????? Thereremains for consideration the proposed penalties for items numbered 1 and 5 ofcitation number 1. Pursuant to section 17(j) of the Act (29 U.S.C. 666(i)), theCommission is obliged to find and give ?due consideration? to the size of theemployer?s business, the gravity of the violation, the good faith of theemployer and the history of previous violations in arriving at a suitablepenalty. Secretary v. Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972).??????????? Afterdue consideration of the said four criteria it is determined that the proposedpenalties for items numbered 1 and 5 are suitable.??????????? It isappropriate to note that the respondent emphatically denied that it advised thecompliance officer that it was relying on a first-aid kit available to it inthe general contractor?s trailer.??????????? Thus,that factor is not to be considered in determining the appropriateness of thepenalty for item number 5.??????????? Citationnumber 2?repeat serious??????????? Thecomplainant?s evidence is that the respondent?s employee, Lomiento was observedworking in an unprotected elevator shaft without wearing a safety belt orequivalent protection. Lomiento denies being in the shaft or that the shaft wasunprotected. He claims that he did have a safety belt on the jobsite and deniestelling the compliance officer it was at home. His fellow employee, Seipel,supports this testimony but admits not being with Lomiento at all times duringthe day.??????????? Elsewherein this opinion I enumerated the various factors to be weighed in assessingcredibility of testimony. Giving consideration to those factors and the mannerof respondent?s witnesses while testifying, which raised doubts and created theimpression they were giving the wrong coloring to material facts I concludethat the complainant?s witnesses, on this issue, gave the more credible andpersuasive testimony.??????????? Accordingly,I find the evidence demonstrates that respondent?s employees did not havesafety belts or the equivalent at the jobsite; that the employee Lomiento wasin the elevator shaft without safety equipment and that the shaft was not fullyprotected.???? ??????????? Weconsider next the classification of the violation as ?repeat serious?. It ischallenged by respondent?s answer.??????????? Inorder for a respondent to be found to have committed a repeat violation twotests must be met. First it must be shown that the respondent had previouslyviolated the same standard and that such violation had been established by afinal order or operation of law.[26] Secretary v. LuckyStores, Inc., 4 OSAHRC 725 (1974); Secretary v. Southwest Paving, Inc.,13 OSAHRC 464 (1974); Secretary v. Karsten Equipment Co., 14 OSAHRC 23(1974); Secretary v. George A. Odien, Inc., 14 OSAHRC 23 (1974). Herethe record shows that the respondent has been on five prior occasions inviolation of 29 CFR ? 1926.28(a), the standard in issue. Some of the violationsbecame final orders prior to the inspection in this case and others subsequentto the inspection but prior to the hearing herein. From this past history it isclear that respondent has a record of prior violations of the standard thatripened into final orders before the subject inspection.??????????? Secondly,the record must also establish the violations were committed in a manner whichflaunts the requirements of the Act if it is to be validly termed a violationthat was done ?repeatedly? within the Congressional intendment. BethlehemSteel v. OSAHRC 540 F.2d 157 (3rd Cir.) 1976; Secretary v. GeneralElectric, 17 OSAHRC 49 (1975); c.f. Frank Irey, Jr., v. OSAHRC, 519F.2d 1200 (3rd Cir. 1974); Cert. Granted, on other grounds, 98 S.ct.1458 (1976).??????????? TheReview Commission in the General Electric case noted that in determiningwhether the Act has been ?flaunted?, ?Each case must be decided upon its ownmerits and turn upon the nature and extent of the violations involved.? 17OSAHRC 49, 65 66 (1975). The circuit Court of Appeals in the Bethlehemcase citing the Commission?s ruling in the General Electric case with approval,augmented the factors the Commission should consider when determining whether acourse of conduct is flaunting the requirements of the Act.??????????? Therespondent is the largest company in the industry. It supplies its employeeswith safety equipment and has a safety program for its 12,000 employees. Manyof its employees work in small crews at jobsites.??????????? Ihave considered all of the pertinent factors for determining whether therespondent?s course of conduct flaunts the requirements of the Act.??????????? Althoughthe respondent has violated the standard in question more than once, I amunable to conclude on the basis of this record that it was committed ?in amanner which flaunts the requirements of the Act?. See Bethlehem Steeland General Electric cases (supra). Thus, respondent will not be foundto have ?repeatedly? violated the standard within the meaning of Section 17(a)of the Act (29 U.S.C. 666(a)).??????????? Thereremains for disposition the respondent?s challenge to citation numbered 2 beingclassified as ?serious? violation.??????????? Underthe Occupational Safety and Health Act of 1970[27] a serious violationexists if there is a ?substantial probability? that a death or serious injurycould result unless the employer did not, and could not, with the exercise ofreasonable diligence know the hazard was present.??????????? Herethe respondent?s employees were exposed to the hazards of falling from 16 to 30feet. The likelihood of injury is high and death or serious injury couldresult.??????????? Relativeto the element of knowledge of the existence of the hazardous condition thereis compelling evidence to hold that the respondent had knowledge of thecondition. The very nature of the work performed by respondent?s employeesencompasses hazardous conditions. Although safety equipment was provided byrespondent the fact that its employee Lomiento reported for work without hissafety belt demonstrates a lesser degree of effort by respondent to enforce itssafety program than circumstances warrant. Complainant has established that theviolation of 29 CFR 1926.28(a) under the circumstances here constitutes aserious violation as contemplated by the Act.??????????? Wecome now to the appropriateness of the penalty for violating 29 CFR ?1926.28(a). Complainant has found that respondent is in good faith, has a goodsafety program and was cooperative.[28] Considering its size andgood faith 20% credit was allowed reducing the $1,000 unadjusted penalty to$800.00. The proposed penalty of $3,200 was predicated on this being a secondrepeat violation using the formula of 4 times the adjusted amount. In view ofthe finding that this is not a repeat violation the penalty proposed must bereduced to $800.00.??????????? Inassessing what I consider to be an appropriate penalty for this violation, Ihave applied the criteria set forth in section 17(j) of the Act (29 U.S.C.666(i)) and the fact that the complaint erroneously considered the violation tobe a ?repeat? with the meaning of the Act.??????????? Inconclusion, based on the credible evidence, I find that the complainant?scompliance officer did have an opening conference with respondent as alleged. Ifurther find that whether or not the representatives of the parties had anearly morning conversation on July 22, 1976, bears only on the question ofcredibility?a factor resolved in favor of the complainant.??????????? Havingheard the testimony and observed the demeanor of the witnesses, and havingconsidered the same, together with the citations, notification of proposedpenalty, notice of contest, pleadings, representations, stipulations andadmissions of the parties, it is concluded that the preponderance of evidence,on the entire record, supports the following:FINDINGS OF FACT??????????? 1.That respondent?s employees were observed during the forenoon of July 21, 1975working at the jobsite without wearing hard hats.??????????? 2.That the said employees in the course of their work would have occasion to bein areas on the grade level and the first and second lower levels where theywould be exposed to head injuries.??????????? 3.That the respondent did remove the guardrail at the landing and that it was notpossible for its employees to do the work with the rail in place.??????????? 4.That the respondent did not remove the railing along the open side of thestairway?as distinguished from the landing to which it leads.??????????? 5.That the respondent did not have a first-aid kit at the jobsite which would beeasily accessible when required.??????????? 6.That respondent?s employee Lomiento was in the elevator shaft and at that timewas not wearing a safety belt or the equivalent.??????????? 7.That the elevator shaft within which Lomiento was working was not fullyprotected.??????????? 8.That respondent?s employee did not have a safety belt or the equivalent at thejobsite.??????????? 9.That the complainant?s compliance officers did in fact hold an opening conferencewith respondent?s employee Lomiento.??????????? 10.That complainant?s compliance officer Tomich and respondent?s employee Lomientodid not have a conversation at the railroad station during the morning of July22, 1975.CONCLUSIONS OF LAW??????????? 1.The respondent was at all times material hereto subject to the requirements ofthe Act and the standards promulgated thereunder. The Commission hasjurisdiction of the parties and of the subject matter herein.[No 2 in original]??????????? 3.That on July 21, 1975, the respondent was in violation of section 5(a)(2) ofthe Act (29 U.S.C. 654(a) by failing to comply with 29 CFR 1926.100(a).??????????? 4.That complainant has not established that on July 21, 1975 respondent was inviolation of 29 CFR 1926.500(e)(1)(ii).??????????? 5.That on July 21, 1975 respondent was in violation of section 5(a)(2) of the Act(29 U.S.C. 654(a)) by failing to comply with 29 CFR 1926.50(d)(1).??????????? 6.That respondent on July 21, 1975 was in violation of section 5(a)(2) of the Actby failing to comply with 29 CFR 1926.28(a).??????????? 7.That the violation of 29 CFR 1926.28(a) was a serious violation within themeaning of section 17(j) of the Act (29 U.S.C. 666(1)).??????????? 8.That the respondent did not ?flaunt? the Act in violating 29 CFR 1926.28(a) andthat such violation was not repeatedly done within the meaning of section 17(a)of the Act (29 U.S.C. 666(a)). Appropriate penalty is $800.00.ORDER??????????? Citationnumber 1, items numbered 2, 3 and 4 and their proposed penalties are vacatedand items numbered 1 and 5 thereof are affirmed.??????????? Citationnumber 2, as modified by deleting the word ?repeat? is affirmed.??????????? Thefollowing penalties are assessed:Citation number 1?Item number 1 $70.00Item number 5 $55.00?Citation number 2Item number 1 $800.00The total penalty assessed is $925.00.??EDWARD V. ALFIERIJUDGE, OSHRCDated: February 7, 1977?New York, New York\u00a0\u00a0\u00a0[1] Both citationsstate that the inspection was conducted on July 21?22, 1975. At the hearing,the Secretary moved to amend the two citations to provide that the inspectiontook place only on July 21. The judge granted the motion.[2] In itspost-hearing brief, Respondent presented only the general argument that theSecretary failed to sustain his burden of proof by a preponderance of theevidence with regard to all the citation items before the judge at the hearing.Respondent stated that the witnesses for the Secretary and for Respondent wereequally credible. Respondent argued that, as a result of their irreconcilableconflicting statements, none of the alleged violations could be established bya preponderance of the evidence.[3] The Secretary,the party aggrieved by the judge?s vacation of Item No. 4 in Citation No. 1,has not filed any exceptions on review to that part of the judge?s decision andorder. Finding no compelling public interest that would warrant Commissionreview of the judge?s decision to vacate Item No. 4, we will not now considerthe judge?s disposition of that issue. Water Works Installation Corp.,76 OSAHRC 61\/B8, 4 BNA OSHC 1339, 1976?77 CCH OSHD ?20, 780 (No. 4136, 1976); Abbott-Sommer,Inc., 76 OSAHRC 21\/A2, 3 BNA OSHC 2032, 1975?76 CCH OSHD ?20,428 (No. 9507,1976). Such unreviewed dispositions are not precedent binding on the Commission.Leone Construction Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975?76 CCHOSHD ?20,387 (No. 4090, 1976), appeal withdrawn, No. 76?4070 (2d Cir.May 17, 1976).[4] The sectionprovides:Subpart E?PersonalProtective and Life Saving Equipment? 1926.100 Headprotection.(a) Employeesworking in areas where there is a possible danger of head injury from impact,or from falling or flying objects, or from electrical shock and burns, shall beprotected by protective helmets.[5] Tomich testifiedfirst, giving his answers in considerable detail. When he was subsequentlycalled to testify, Appleman stated that his answers would be the same asTomich?s.[6] The section readsas follows:SubpartD?Occupational Health and Environmental Controls? 1926.50 Medicalservices and first aid.(d) . . . (2) Thefirst-aid kit shall consist of materials approved by the consulting physicianin a weatherproof container with individual sealed packages for each type ofitem. The contents of the first-aid kit shall be checked by the employer beforebeing sent out on each job and at least weekly on each job to ensure that theexpended items are replaced.[7] On redirectexamination, Tomich testified that Lomiento did tell him that a first-aid kitwas available in his co-worker?s car.[8] The sectionprovides:SubpartD?Occupational Health and Environmental Controls? 1926.50 Medicalservices and first aid.(d)(1) First-aidsupplies approved by the consulting physician shall be easily accessible whenrequired.[9] We note thatRespondent does not challenge the amendment.[10] The section readsas follows:Subpart C?GeneralSafety and Health Provisions? 1926.28 Personalprotective equipment.(a) The employeris responsible for requiring the wearing of appropriate personal protectiveequipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce thehazards to the employees.[11] Lomiento statedthat it was impossible to place the planking up to the wall because theguiderails were already installed.[12] The judge notedin his discussion of this particular citation that the demeanor of Respondent?switnesses while testifying ?raised doubts and created the impression they weregiving the wrong coloring to material facts . . ..?[13] In S. & HRiggers and Erectors, Inc., supra, Commissioner Barnako stated that hewould require the Secretary to prove the feasibility of the personal protectiveequipment which the Secretary recommends to be used. This position reiteratesthe Secretary?s burden of proof as set forth and adopted by a majority of theCommission in Frank Briscoe, Inc., 76 OSAHRC 129\/A2, 4 BNA OSHC 1729,1976?77 CCH OSHD ?21,162 (No. 7792, 1976). In the instant case, the record doesnot contain any evidence concerning the feasibility of safety belts. However,since this case was tried before S & H Riggers and Frank Briscoe,the Secretary was unaware of his burden of proof to establish feasibility.Accordingly, Commissioner Barnako would remand this case to the judge to permitthe introduction of evidence concerning the feasibility of safety belts.[14] The sectionprovides:For purposes ofthis section, a serious violation shall be deemed to exist in a place ofemployment if there is a substantial probability that death or serious physicalharm could result from a condition which exists, or from one or more practices,means, methods, operations, or processes which have been adopted or are in use,in such place of employment unless the employer did not, and could not with theexercise of reasonable diligence, know of the presence of the violation.[15] The section readsas follows:Any employer whowillfully or repeatedly violates the requirements of section 5 of this Act, anystandard, rule, or order promulgated pursuant to section 6 of this Act, orregulations prescribed pursuant to this Act, may be assessed a civil penalty ofnot more than $10,000 for each violation.[16] The partiesstipulated to these citations:1)OSHRC Docket No. 1184;2)OSHRC Docket No. 16178;3)OSHRC Docket No. 15427;4)Inspection No. R6891 No. 57;5)Inspection conducted August 1974; and6)Inspection conducted July 1, 1975.[17] In PotlatchCorp., we declined to follow Bethlehem Steel Corp. v. OSHRC, supra,and held that an employer?s ?flaunting,? or flagrant disregard, of the Act hasno bearing on whether a certain violation is repeated. The Commission will,however, review such evidence in considering what penalty to assess.[18] Docket No. 1184became a final order on November 19, 197. Docket No. 16178 became a final orderon April 2, 1976. Docket No. 15427 became a final order in December 1975. Withregard to the August 1974 inspection, the citation is irrelevant because it wasvacated by an administrative law judge and not reviewed by the Commission.Thecitation and penalty resulting from the July 1, 1975 inspection also did notbecome a final order until after the date of the inspection in this case. TheSecretary did not provide the date that Respondent received the citation andnotice of proposed penalty. Under section 10(a) of the Act, Respondent has 15working days after receipt of the notice of proposed penalty within which tocontest the violation. Even if Respondent could have received the citation andnotice of proposed penalty on the same day as the inspection, Tuesday, July 1,1975, the citation would not have become a final order until 2 days afterMonday, July 21, 1975, taking into account the July 4 holiday.Withregard to Inspection No. R6891, No. 57, the Secretary supplied the date ofOctober 31, 1973, but he did not explain the significance of the date, i.e.,whether that was the inspection date or the final order date. The Secretarypresented no further evidence regarding that inspection.Havingdecided this issue on the basis of final order dates, we need not reach thequestion of whether the earlier and later violations were substantiallysimilar.CommissionerBarnako?s views with respect to repeated violations are set forth in hisseparate opinion in Potlatch Corp., supra, (concurring in part anddissenting in part). In the event that the Secretary were to establish thefeasibility of safety belts on remand, see note 13, supra, Commissioner Barnakonotes that he agrees with his colleagues that the violation is not repeatedsince the Secretary failed to establish that any prior citations for asubstantially similar violation had become final orders by the date of thealleged repeated violation herein.[19] Amended by motiondeleting reference to July 22, 1975 (Tr. 9).[20] Affirmativedefenses were raised to the posting violations. However complainant?s motion tovacate the violations was granted.[21] See J 4.[22] Applemantestified that his testimony would be substantially the same as Tomich?s (Tr.130).[23] Subsection (i) of29 CFR 1926.500?DEFINITIONS reads:(i)?Stairs, stairways??A series of steps leading from one level or floor toanother, or leading to platforms, pits, boiler rooms, crossovers, or aroundmachinery, tanks, and other equipment that are used more or less continuouslyor routinely by employees or only occasionally by specific individuals. Forthe purpose of this subpart, a series of steps and landings having three ormore rises constitutes stairs or stairway. (Emphasis added)[24] The Federal Rulesof Civil Procedure govern Commission proceedings. See section 12(g) of the Actand Rule 2(b) of the Commission?s Rules of Procedure. Rule 15(b), in pertinentpart, provides:Whenissues not raised by the pleadings are tried by express or implied consent ofthe parties, they shall be treated in all respects as if they had been raisedin the pleadings. Such an amendment of the pleadings as may be necessary tocause them to conform to the evidence and to raise these issues may be madeupon motion of any party at any time, even after judgment; but failure to soamend does not affect result of the trial of these issues. . . .[25] Rule 72 of theCommission?s Rules of Procedure provides in part that ?(h)earings before theCommission and its Judges shall be in accordance with ? 554 of Title 5 U.S.C. .. .? (the Administrative Procedure Act) Under the APA, an agency may find thatthe respondent?s conduct violates a different provision of law than thatspecified in the complaint as long as the underlying facts have been alleged inthe complaint and the shift in legal theory does not prejudice respondent.[26] Section 10(a)Act; 29 U.S.C. 659(a).[27] Section 17(k) (29U.S.C. 666(j)).[28] Tr. 29.”