“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5221 PIMA CONSTRUCTION COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August17, 1976?DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BARNAKO, Chairman:The issues presented in this case arewhether Administrative Law Judge Robert N. Burchmore erred in (1) affirming aserious citation alleging violation of 29 C.F.R. 1926.500(d)(1), (2) affirminga serious citation alleging violation of 29 C.F.R. 1926.752(j), and (3)affirming a serious citation alleging violation of 29 C.F.R. 1926.501(b).Having examined the record in its entirety, we find that the administrative lawjudge properly decided that the citations be affirmed, and we adopt thedecision of the judge as the decision of the Commission except as modifiedbelow.Serious citation for violation of 29C.F.R. 1926.500(d)(1):[1]Respondent was engaged as a subcontractorfor the steel erection of a nine-story building in Tucson, Arizona. The steelsuperstructure of the building was being erected in vertical segments, or bays.That is, Respondent erected the steel of one segment of the building from thefirst through the ninth floor, and then proceeded to erect another nine-storybay immediately adjacent to the previously completed bay. During the inspectionon September 18, 1973, the east perimeter of the second floor of one bay wasnot guarded with guardrails or any other type of perimeter protection. Theperimeter was to remain open for as many as four days until Respondentconstructed the next adjacent bay up to the second floor level. The secondfloor of the completed bay was in the process of being poured: some smallportions of the formwork had not yet been built, but formwork and reinforcingbars covered most of the floor of the bay, and concrete had been poured on allbut a 14-foot strip of floor along the east side. Respondent?s employees passedthrough the eastern portion of the second floor to reach the stairways locatedat the corners of the bay.Complainant cited Respondent for violationof 1926.500(d)(1), alleging that Respondent failed to guard an open-sided flooror platform with a standard railing or the equivalent as required by thestandard. Respondent contended in defense that it is unreasonable to apply 1926.500(d)(1)so as to require Respondent to install a standard railing on the edge of afloor which is temporary in that it is being constructed, and which will beextended beyond the present edge in the near future. Judge Burchmore found aviolation of 1926.500(d)(1) because he concluded that the formwork covered withreinforcing bars or concrete was a floor within the meaning of the citedstandard.We have examined the evidentiary record inlight of Respondent?s arguments that 1926.500(d)(1) does not apply to thefacts, and we conclude that the cited standard is inapplicable. 1926.500(d)(1)is in subpart M pertaining to guardrails for floors in general. It requiresthat a construction employer install a standard railing or the equivalent on?[e]very open-sided floor or platform 6 feet or more above [the] adjacent flooror ground level . . .? Nevertheless, in the subpart which specifically appliesto steel erection, Subpart R, the standard appearing at 1926.750(b)(1)(iii)sets forth specific requirements for guarding the open periphery of temporaryfloors:(iii) Floor periphery?safety railing. Asafety railing of ?-inch wire rope or equal shall be installed, approximately42 inches high, around the periphery of all Temporary-planked or metal-deckedfloors of tier buildings and other multifloored structures during structuralsteel assembly. (emphasis added).?The second floor herein existed ?duringstructural steel assembly,? and consisted of temporary plywood decking. Ittherefore was the ?temporary-planked? floor to which 1926.750(b)(1)(iii)refers. A part of the second floor had been poured, making that part permanent.The question is, then whether Respondent was required by 1926.500(d)(1) toinstall guardrails on any part of the periphery of the second floor because asubstantial part of it was a permanent floor We answered the question in thenegative in The Ashton Company, Inc., No. 5111, BNA 3 OSHC 1968, CCHOSHD para. 20,351 (R.C., January 26, 1976). Therein we vacated a citationalleging a violation of 1926.500(d)(1) since 1926.750(b)(1)(iii) applied wherethe floor was only partially poured with concrete and since the employer hadinstalled a wire rope around the periphery of the temporary floor before theinspection. Unlike The Ashton Company, Respondent herein had not installed awire rope along the east side of the existing temporary floor.Since 1926.500(d)(1) does not apply, butsince Respondent did not comply with the applicable standard, two issuesremain: (1) whether the noncompliance with the applicable, but not cited,standard was tried by the consent of the parties pursuant to Rule 15(b) of theFederal Rules of Civil Procedure[2] and, if so, (2) whetherthe citation and complaint may be amended to allege a violation of theapplicable standard in spite of the fact that Complainant never moved for suchrelief and neither party specifically raised the applicable standard. Regardingtrial by consent, to show that Respondent violated 1926.500(d)(1), Complainantestablished without dispute both that Respondent had failed to install astandard railing along the east side and that, as a consequence, it wasentirely open. The violation was therefore tried as a failure to guard the openeast side. The applicable standard, 1926.750(b)(1)(iii), requires a differentform of guarding, a wire rope instead of a standard railing. Nonetheless, aviolation of the applicable standard is established by the proof thatRespondent failed to install any form of guarding on the east side. Therefore,although the cited standard and the applicable standard require different formsof abatement, the Complainant?s burden in establishing a violation of eitherstandard is essentially the same in this case. The record shows, moreover, thatRespondent did install a wire rope along the exterior perimeters of the secondfloor, which conduct is the precise form of abatement required by theapplicable standard. Respondent did not contend that it guarded all open sideswith wire rope in order to comply with either the cited standard or anapplicable standard. Instead, Respondent argued that it was unnecessary toguard an open side which was located on the interior of a floor. Accordingly,if the applicable standard had been cited originally, Respondent could not havepresented any defenses different from defenses it did present to the citedstandard. From this we conclude that the parties tried the issue ofRespondent?s noncompliance with the applicable standard, and that there can beno prejudice by allowing amendment of the citation and complaint to allege aviolation of 1926.750(b)(1)(iii). See Kaiser Aluminum & Chemical Corp.,No. 3685 BNA 3 OSHC 1162, CCH OSHD para. 20,675 (R.C., May 3, 1976), and casescited therein.We turn now to the question of whetheramendment may be allowed where Complainant has not moved to amend and whereneither party raised the applicable standard. We held in Kaiser Aluminumthat Rule 15(b), by its plain terms, does permit amendment of the pleadings toconform to the evidence even though no party has moved to amend. Accordingly,we will amend the pleadings to allege a violation of 1926.750(b)(1)(iii).Nonetheless, to insure that the parties have fair notice and opportunity torespond where, as here, the Commission finds it appropriate to decide the caseon a theory which the parties did not specifically advance, we will, as we didin Kaiser Aluminum, stay the effective date of our order to allow the parties areasonable time in which to show good cause why the pleadings should not be soamended.Respondent urges on review that noperimeter guarding violation can be found in this case because Complainantfailed to establish that Respondent?s employees were exposed to a hazard fromthe open side. We disagree. It was undisputed that, regularly and in the normalcourse of carrying out their duties on upper floors, Respondent?s employees didpass through the eastern portion of the second floor on their way to thestairways at the east corners. It was further uncontroverted that Respondent?semployees were able to walk and did generally walk over reinforcing rods laidon temporary formwork. Therefore, Respondent?s employees were not preventedfrom walking along the open edge by the fact that the area along the edgeconsisted of rods placed on the formwork. In addition, the record reveals thatthe east stairways were located on narrow wings which protruded eastward beyondthe open side. To walk directly to the stairs after passing through the easternportion of the second floor, Respondent?s employees turned the unguarded cornerwhere the open side met the wing, or passed close to the corner. We haveheretofore held that proof that Respondent could reasonably have predicted thatits employees would be in a zone of danger is sufficient to establish exposure.Gilles & Cotting, Inc., No. 504, BNA 3 OSHC 2002, CCH OSHD para. 20,448(R.C., February 20, 1976). We conclude that access was established by the proofthat Respondent?s employees could approach the open side and did walk in theimmediate vicinity to use stairways as a matter of course in carrying out theirwork activities.Serious Citation for violation of 29C.F.R. 1926.752(j):[3]Complainant alleged that Respondentviolated 1926.752(j) in that Respondent failed to plank over completely orotherwise guard four unused floor openings in the northeast corner of thesecond floor. Judge Burchmore affirmed the citation on finding that the floorholes in question were uncovered and unguarded while they were not being usedfor any purpose that required that they be left open, and on finding thatRespondent?s employees were exposed. Respondent contends on review thatComplainant failed to prove that employees were exposed.The record reveals that there were flooropenings at, and around, the landings of the stairway at the northeast cornerof the second floor. Respondent?s employees testified that they regularly usedthe stairway. Respondent presented no testimony showing the contrary. Fromthis, it is apparent that Respondent?s employees not only had access to thearea of the hazard, but that they did walk by or over the floor holes.Accordingly, we agree with Judge Burchmore that Respondent?s employees wereexposed to the hazard in the course of their work on the site.Employer responsibility:Respondent contends that the twopreviously discussed citations and a third citation which alleges a seriousviolation of 29 C.F.R. 1926.501(b),[4] in that Respondent failedto install standard railings on stairways at the four corners and in the centerof the building, must be vacated since Respondent was not responsible forcorrecting the conditions. In this regard, Respondent avers that other contractorswere responsible because they either employed employees with the particularskills necessary to correct the hazards, had actually assumed the duty tocorrect such hazards, employed most or all of the employees actually working inthe area, or employed employees who were more endangered than Respondent?sbecause their employees were not trained to work around hazards occurringduring steel erection.The record reveals in this regard thatRespondent was one of several contractors on the site. As the contractor incharge of steel erection, Respondent employed steel erectors, welders, and studinstallers, whereas the general contractor employed carpenters and concretefinishers. As a part of its duties, Respondent did install a wire rope alongthe exterior edges of the second floor, but not along the east edge since itwas an interior side. Respondent installed all of the stairways, also as a partof its duties. The record is silent as to the identity of the contractor,whether Respondent or another contractor, who had assumed the duty to installstandard railings after Respondent installed the stairways. Respondentinstalled a wire rope on the sides of the west stairway prior to theinspection, but did not similarly guard the other stairways. As to the openfloor holes, the record shows that another contractor corrected the conditionafter Respondent received the citation for violation. Other contractors,including the one who corrected the condition, directed Respondent in liftingand positioning reinforcing rods on top of the floor holes on the variousfloors. Nonetheless, Respondent had assumed the duty to lift reinforcing rodsto the floors above ground, and it is undisputed that the holes were open whenRespondent lifted the rods onto them, thereby effectively preventing anyonefrom covering or guarding them.We have held that a citation will bevacated where Respondent did not create the hazardous condition, did notcontrol the abatement of it or have the expertise to abate it, and in addition,did take reasonable steps to prevent its own employees from being exposed. GrossmanSteel & Aluminum Corp., No. 12775 BNA 4 OSHC 1185, CCH OSHD para.20,691 (R.C., May 12, 1976); Anning-Johnson Company, Nos. 3694 &4409 BNA 4 OSHC 1193, CCH OSHD para. 20,690 (R.C., May 12, 1976). In thesedecisions, we stated that, among other things, an employer should attempt tohave the general contractor or other responsible contractor correct thecondition, or instruct his employees to avoid the area where the hazard exists,or, in some instances, provide an alternative means of protection against thehazard. We held additionally that the burden is on Respondent to show the abovematters in defense since, in general, an employer is responsible for theexposure of his own employees to a hazard.Applying these considerations to thequestion of Respondent?s responsibility for the installation of a wire rope onthe east side of the second floor, it is clear that Respondent failed toestablish this defense. Since Respondent did guard the other open sides of thesecond floor with wire rope, there is no question that Respondent had theexpertise to identify and correct the hazard presented by the remaining openside in the manner required by the applicable standard. Moreover, since Respondent?sduty was steel erection in that area, Respondent must be charged with havingcreated the hazard. It failed to completely carry out its duty by guarding allsides with wire rope. Accordingly, we find that Respondent was responsible forthe violation and, provided that the pleadings are amended to allege aviolation of 1926.750(b)(1)(iii) as provided herein, we will affirm thecitation as amended.Regarding the citation alleging failure toguard or cover open floor holes in the northeast corner of the second floor,Respondent has established that another contractor assumed responsibility forthe condition, and that other contractors had assumed the responsibility forpositioning rods on open floor holes. Nonetheless, Respondent?s duties in thearea containing the open floor holes show that Respondent?s specialty, steelerection, gave it the expertise to recognize the hazard and gave it extensivecontrol over the area. This is so because Respondent actually had assumed theduty to lift rods onto temporary floors during steel erection and because steelerection regularly involves work in and around temporary flooring in whichthere can be floor holes. We held in Otis Elevator Co., No. 8468 BNA 3OSHC 1219, CCH OSHD para. 20,693 (R.C., May 14, 1976), that the general rule isthat each employer is responsible for the safety of his own employees andtherefore he cannot ignore hazards of which he has special knowledge because ofhis expertise. Therein, we affirmed a citation for failure to install standard railingsat the openings of elevator shafts because Respondent?s specialty was theinstallation of elevators and Respondent thereby had joint control over thearea of the elevator shafts. In the case now before us, the extent ofRespondent?s control of the area containing open floor holes is essentially thesame as that of Otis Elevator Co. over the area of the elevator shafts.Accordingly, we find that Respondent herein was responsible for the violation.Moreover, even if Respondent had not had control of the area containing thefloor holes, Respondent must be held liable for the violation on the basis ofthe considerations set forth in Grossman and Anning-Johnson.Respondent had the ability to recognize the hazard but did not take reasonablesteps to protect employees. There is no proof that Respondent requested theresponsible contractor or the general contractor to have the conditioncorrected or assured that its employees avoided the area, or provided analternative protection against the hazard presented by the floor holes.As to the matter of installing perimeterguarding on certain stairways ways pursuant to 1926.501(b), since Respondentinstalled the stairways, it is established that Respondent controlled the areain which the hazardous condition was located and that the condition was one ofwhich Respondent could be expected to be particularly aware because of itsexpertise. This being so, Respondent had the expertise to assure that thecondition was corrected. As to actually installing standard railings,Respondent failed to prove that it had not assumed this duty, since theevidentiary record is silent on this point. Moreover, assuming that Respondentdid not have the duty to install standard railings, the fact that Respondentguarded one stairway with wire rope establishes that Respondent had theexpertise to recognize and to provide protection against the hazard. This factequally establishes that Respondent must be held responsible under our rulestated in Grossman and Anning-Johnson. Even if we did not findRespondent responsible because of its control of the area, Respondent isresponsible because it failed to provide alternative protection such as a wirerope. Additionally, there is no showing that Respondent requested theresponsible contractor to correct the condition. Respondent did not takesufficient steps to require that its employees avoid the hazard sinceRespondent directed its employees to use only the west stairway, but theemployees regularly used other unguarded stairways.We turn now to the assessment ofappropriate penalties. Respondent is medium in size as indicated by the factthat it employs from 15?100 employees and has an annual gross income of$950,000. The record reveals no history of previous violations. Good faith isevidenced by precautions against fall hazards taken by Respondent in areasother than those cited. The gravity of the violation of 1926.750(b)(1)(iii) waslow since few employees were exposed and the chance of a fall occurring wasslight. Similarly, the gravity of the violation of 1926.752(j) was low in thatthe record shows only that a few employees were exposed and that thereinforcement rods over the floor holes minimized the chance of a falloccurring. The gravity of the violation of 1926.501(b) is low to moderate sinceemployees used the stairs to reach the upper floors of the building and all butone lacked any perimeter protection. Accordingly, we conclude that penalties of$100, $100, and $300 should be assessed, as were recommended by JudgeBurchmore.Accordingly, the citations allegingviolations of 1926.752(j) and 1926.501(b) are affirmed, and the correspondingpenalties are assessed. The citation originally alleging a violation of1926.500(d)(1) is amended to allege a violation of 1926.750(b)(1)(iii), the citationis affirmed as amended, and the corresponding penalty is assessed, unlesswithin twenty (20) days from receipt of this decision either party shows goodcause why the pleadings should not be so amended. The judge?s report is adoptedto the extent that it is consistent herewith. It is so ORDERED.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATE: AUG 17, 1976CLEARY, Commissioner, CONCURRING:Although I agree with the disposition ofthe items at issue in this case, I dissociate myself from that portion of mycolleague?s opinion which concludes that the gravity of the ?1926.750(b)(1)(iii) violation is low because few employees were exposed to theunguarded perimeter. I disagree with this conclusion insofar as it derivessupport from that of Judge Burchmore regarding an appropriate penalty.Judge Burchmore limited his considerationof employee exposure to the hazard to respondent?s employees. He specificallyexcluded other employees from consideration although it was clear that employeesof the general contractor were exposed to the unguarded perimeter.As my colleague observes, respondent ischarged with creating the hazard. Although it ?had the expertise to identifyand correct the hazard presented by the remaining open side in the mannerrequired by the applicable standard,? respondent neglected to rectify thecondition. With this measure of control over the hazardous condition respondentis responsible for the hazards posed to other employees on the site as well asto its own employees. Consequently, it was error to ignore the exposure of thegeneral contractor?s employees in assessing an appropriate penalty.In Anning-Johnson Co., 4 BNA OSHC1193, 1975?76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, May 12, 1976) and GrossmanSteel & Aluminum Corp., 4 BNA OSHC 1185, 1975?76 CCH OSHD para. 20,691(No. 12775, May 12, 1976), a divided Commission held that it would follow theopinion of the U. S. Court of Appeals for the Second Circuit in Brennan v.O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032 (2d Cir. 1975).Specifically, we stated that an employer who creates or has control over ahazard will be held responsible for the dangers posed to either his employeesor to employees of another employer engaged in a common undertaking. Inasmuchas this respondent created and had control over the unguarded perimeter, it wasresponsible for hazards posed to employees of other employers present at thecommon jobsite. Under such circumstances it follows that, in assessing anappropriate penalty for respondent?s failure to guard the perimeter, theexposure of the general contractor?s employees as well as that of respondent?semployees should be considered.However, I concur in assessing a $100penalty for the ? 1926.750(b)(1)(iii) item. Respondent evinced good faith bytaking precautions against fall hazards in other locations. As to the unguardedeast perimeter, respondent had an honest but mistaken belief that guarding wasunnecessary. This fact, when considered in conjunction with the facts that respondentis of moderate size and has no history of previous violations, leads me toconclude that a $100 penalty is appropriate although the gravity of theviolation is higher than my colleague and the Judge suggest.\u00a0MORAN, Commissioner, Concurring in Part, Dissenting inPart:I agree with the majority?s disposition ofthis case only insofar as they affirm a citation for noncompliance with theoccupational safety standard codified at 29 C.F.R. ? 1926.501(b).The citation originally chargingrespondent with a violation of 29 C.F.R. ?\u00a01926.500(d)(1) should bevacated because complainant has failed to establish by a preponderance of theevidence that any or respondent?s employees were actually exposed to thealleged hazard. In Secretary v. Gilles & Cotting, Inc., OSAHRC DocketNo. 504, February 20, 1976,[5] I expressed in some lengthmy reasons for disagreeing with the adoption of a rule that an employer couldbe held liable under the Act on a mere showing that the employer?s employeesmight have access to a zone of danger created by a safety violation. For thereasons stated in that opinion, it is my view that complainant must proveactual exposure of a cited employer?s employees to establish a violation of theAct.In this case, although the evidenceestablishes that respondent?s employees did in fact traverse the easternportion of the second floor, there is no evidence to indicate how close theycame to the unguarded edge. The rather cavalier conclusion of my colleaguesthat the employees passed ?close? to the edge is mere speculation notsubstantiated by the record and which is contrary to Judge Burchmore?s findingthat ?the evidence does not show that [respondent?s employees] passed near theedge of the open side.? Since the Commission cannot decide cases based on merespeculation and conjecture,[6] 6the citation should bevacated.Additionally, I disagree with mycolleagues? sua sponte amendment of this charge from ?\u00a01926.500(d)(1) to ?1926.750(b)(1)(iii). In Secretary v. Warnel Corporation, OSAHRC Docket No.4537, March 31, 1976 (dissenting opinion), I pointed out that a citation is aunique creature of statute to which specific statutory requirements ofparticularity have been attached in 29 U.S.C. ? 658(a).[7] Contrary to the assertionof Messrs. Barnako and Cleary, it is not a civil pleading to which Rule 15 ofthe Federal Rules of Civil Procedure applies. The reason for the particularityrequirement of a citation is that it is from the citation that an employer mustdecide, within fifteen working days from the issuance thereof, whether or notto contest a charge. If the employer fails to so contest, the citation andproposed penalty become a final order of the Commission. 29 U.S.C. ? 659(a).Accordingly, it is blatantly unjust to require an employer to decide whether ornot to spend the time and money necessary to contest a charge when he cannoteven be certain that the charge for which he was originally cited will be theone he will ultimately have to defend against. It follows, a fortiori, that theunjustness of such a procedure is compounded further when the citation isamended sua sponte after the hearing, as is the case here.Messrs. Barnako and Cleary, exhibiting aslight recognition of the inherent unfairness of their decision, have decidedto affirm the charge as amended ?unless within twenty (20) days from receipt ofthe decision either party shows good cause why the pleadings should not beamended.? This meager attempt to rectify an already bad decision only makes itworse. The respondent was cited for these alleged violations nearly three yearsago and has already spent a great deal of time and money trying to receive afair and final adjudication of the charges. Nevertheless, because complainantcited respondent under the wrong standard, my colleagues would have respondentspend still more time and money in order to obtain the fair and finaladjudication to which it is entitled.Although I agree that the citationcharging respondent with a violation of 29 C.F.R. ?\u00a01926.501(b) should beaffirmed, I do so because respondent created the violative condition and itsemployees were exposed thereto. I completely disassociate myself from alldiscussion pertaining to the decisions in Secretary v. Grossman Steel &Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976, Secretaryv. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12,1976, and Secretary v. Otis Elevator Company, OSAHRC Docket No. 8468,May 14, 1976. As I pointed out in my separate opinions, those decisions byMessrs. Barnako and Cleary are veritable monuments to the art of bureaucraticobfuscation and add nothing but confusion and overlapping liability to thesupposedly orderly and judicious enforcement of the Act. Furthermore, theinstant case is a graphic illustration of my prediction in the GrossmanSteel decision that:?There is no assurance that in the futuremy colleagues will not improvise other requirements and apply themretroactively to cases at hand . . .?\u00a0In the instant case, the lead opinioncorrectly states that ?another contractor assumed responsibility for thecondition? alleged in the ? 1926.752(j) charge. As Judge Burchmore properlyfound, respondent?s employees had been ?instructed to use the stairs on thewest side of the building at some distance from the holes.? In the GrossmanSteel decision, my colleagues indicated that they would absolve an employerfrom liability if he were not responsible for an alleged hazardous conditionand had ?instruct[ed] its employees to avoid the area where the hazard exists.?Apparently, Messrs. Cleary and Barnako have now decided to disregard that rulein order to hold this employer liable.I would vacate the citation fornoncompliance with 29 C.F.R. ? 1926.752(j) because complainant has failed toestablish that respondent was responsible for the violation alleged therein.See Secretary v. Hayden Electric Services, Inc., OSAHRC Docket No. 4034,July 28, 1976 (dissenting opinion).In view of the repeated references in thisdecision to Judge Burchmore?s findings, his decision is attached hereto asAppendix A in order that his views may be fully known.\u00a0\u00a0\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5221 PIMA CONSTRUCTION COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: July 3, 1974?DECISION AND ORDERTheresa Kalinski and John M. Orben for theSecretary of Labor.William H. Boettcher and G. Mark Cord forthe respondent.\u00a0BURCHMORE, Judge:By citations issued September 27, 1973,the Secretary of Labor charges that respondent on September 18, 1973, committedfive serious violations and four non-serious violations of the OccupationalSafety and Health Act of 1970, 29 U.S.C. 651 et seq (The Act), in thatrespondent failed to comply with specified sections of the Safety and HealthRegulations for Construction, 29 C.F.R. 1926. A penalty of $700 was proposedfor each of the alleged serious violations, and penalties of $40 and $175 wereproposed for items one and three of the non-serious citation, respectively; thetotal of the proposed penalties is $3715.Timely notice of contest was filed and theproceeding was assigned to the undersigned judge for hearing and decision.Hearing was held at Tucson, Ariz., on April 3, 1974. Opportunity was affordedfor the filing of briefs on or before May 6, 1974, and a timely brief wasreceived from respondent. However, the brief on behalf of the Secretary was notmailed until May 7th, although no request was made nor cause shown for anextension of time. The rules of the Commission require that requests forextension of time be made in advance of the due date, 29 C.F.R. 2200.5, and Iconclude that, under the circumstances, the Secretary?s brief is untimely andshould not be received. It is therefor rejected, and the case will be decidedupon the record without prejudice.The parties stipulated that, on September18, 1973, the inspection date, respondent had employees working on theconstruction of the Pima County Courthouse building in Tucson, Ariz., thatrespondent?s employees regularly handle and work on goods, supplies andmaterials which originated and were manufactured outside the state of Arizona,and that respondent maintains labor agreements with various national labororganizations. Respondent is clearly an employer engaged in a businessaffecting commerce within the meaning of the Act.At the conclusion of the Secretary?spresentation of evidence, respondent moved to dismiss the citations on thegrounds that the Secretary had failed to prove a case. This motion was takenunder advisement because a disposition of it could not be made without analysisand evaluation of the evidence. Accordingly, respondent proceeded to presentits defense and both sides rested before the hearing ended. Upon fullconsideration of the motion it is hereby denied.On brief respondent requestsreconsideration of the granting of a motion by complainant to amend thecomplaint by changing the designation of the cited regulation from subparagraph(g) to subparagraph (j) of 29 C.F.R. 1926.752. While the change isunquestionably a material one, the citing of subparagraph (g) was plainly amere typographical error inasmuch as the correct subparagraph (j) was cited inthe citation. Moreover, the allegations of fact in the complaint correctlypertain to (j) and it cannot be doubted that respondent had notice from thecitation and the complaint as to what was intended to be charged. The issue wasfully tried and respondent did not request more time to prepare or presentadditional evidence, although opportunity to do so was given. The ruling istherefor reaffirmed.Coming now to the merits of the variouscitations, the evidence shows that on the inspection date respondent wasengaged in work at the construction site as steel erection subcontractor.Respondent had foremen on the job, with crews of steel erectors, welders andstud installers. There was no history of any previous violations by thisemployer, and its size is indicated by the fact that it employs between 15 and100 employees and does an annual volume of business in the amount of $950,000.Serious Citation No. 1The first citation alleges violation ofthe regulation contained in 29 C.F.R. 1926.500(d)(1), which requires that everyopen-sided floor or platform 6 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing. The complainant introducedphotographs (Exh. 1, 2, 3) showing that at the second floor level of thebuilding under construction there was no railing at all along the east side;the photographs also show employees of respondent passing through the area ontheir way to work stations elsewhere on the structure. The question presentedis whether the condition portrayed constitutes a real violation of thesubstance of the regulation, properly construed.The evidence shows two significantcircumstances pertaining to the involved second floor level. First, thestructure at that level consisted of a wood form for a permanent concretefloor; concrete had actually been poured over part of the area, while anotherpart was overlaid with rebar and awaited the pouring of concrete; there werealso small areas where the form itself was incomplete. Second, even when thepictured forms were finished and even after the pouring of concrete on theentire area, the second floor of the building would not then be completebecause only a portion of the building had been erected; additional baysremained to be erected to the east of the portion here involved. This would necessarilyentail further adjacent steel erection and the extending of the floor formsthereon. Actually, if a railing were erected on the east side of the structureshown in the pictures, the subsequent progress of construction would requireits removal to proceed, failing which the railing might constitute a hazardousbarrier to the necessary passage of men and materials.Respondent contends that under thecircumstances fairness requires a holding that the regulation was inapplicable.It argues that the existence of an open sided floor or platform form cannotreasonably be avoided in the process of completing this type of construction.Otherwise, it queries: Where and at what point in time must the railing beerected? Respondent also points to the fact that most of the people working inthe considered area were carpenters, employees of the general contractor,whereas respondent?s employees only passed through the area and actuallyperformed steel erection work in connection with which no railing was physicallypossible.In my opinion the regulation was clearlyapplicable even though it cannot be disputed that a railing along theunfinished, east side of the structure would eventually have to be removed asthe work progressed. ?Platform? is defined in section 502(e) as a ?workingspace for persons, elevated above the surrounding floor or ground, such as abalcony or platform for the operation of machinery and equipment.? It is plainfrom this that the phrase ?Floor or platform? embraces the kind of surface involvedin the forms here under consideration. And the clear intent of the regulationis to require a railing as soon as the forms are so far completed as toconstitute a working space for persons, which was the case here. Even though,as the record shows, such railing could remain in place for only a few days, oruntil the adjacent steel erection was in place, the regulation required that itbe installed and maintained until such time as the further progress of the workrequired its removal. The purpose of the Act, and of the regulations, is toprovide a safe working place and to prevent accidents; that purpose isdefinitely promoted by requiring the employer to erect a railing along the eastside of the considered structure for the period of time during which itactually constituted an open sided floor or platform.While it is clear that the regulation wasviolated in this case, it is also clear from the evidence that the exposure ofthe employees of this respondent was slight. There is testimony that they passedthrough the second floor level, but the evidence does not show that they passednear the edge of the open side. So far as they were concerned, it appears thatthe violation was more technical than substantial. Accordingly, I conclude thatthe gravity of the violation was slight and I find that, considering all of thestatutory criteria for the assessment of penalties, a penalty of $100 isappropriate in this case.Serious Citation No. 2Exhibits 4, 5 and 6 are photographsportraying open holes in the concrete forms at the second floor level, andcomplainant charged respondent with violation of section 752(j), whichprovides, under the heading ?Steel Erection?:(j) All unused openings in floors,temporary or permanent, shall be completely planked over or guarded inaccordance with subpart M of this part.?The evidence shows that the consideredopenings had actually been used to bring up rebar through them, but they werenot being so used at the time of the inspection and they were neither coverednor protected by the railing which subpart M allows. It must therefor beconcluded that a violation occurred as charged and the citation should beaffirmed. Here again, however, the evidence also shows that most of theemployees in the area were employees of the general contractor, for whom thisrespondent has no responsibility under this Act. There was very little exposureof respondent?s employees. They did not work in the area and they wereinstructed to use the stairs on the west side of the building at some distancefrom the holes. In view of the limited exposure, it is my opinion that thegravity of this violation was slight. Considering that fact, together with thesize, history and good faith of the employer, I find that a penalty of $100 isappropriate.Serious Citation No. 3The complainant charges violation ofsection 501(b) which requires railings on stairways. Photographic Exhibits No.7?10, inclusive, clearly depict several steel stairs with no guardrails orrailings. The evidence shows that they were actually used by respondent?semployees. Here the exposure is substantial as there was no elevator on thestructure and the employees were required to use the stairs to get to theirwork stations.Respondent on brief suggests that theproof does not show that the stairways were complete and in place, that theproof is ambiguous as to whether respondent?s employees were using thestairways on all four corners of the building, and that the center stairwayreached only to the second floor level. This argument is overcome by theevidence of the photographs, which show the stairs in place, with no railingsand with no guardrail to deter anyone from using them, and by the testimony ofthe inspecting officer that respondent?s employees used the stairs. It mattersnot whether the employees used all of the stairs; their exposure to the hazardresults from using one stair; manifestly it would be impossible for a man touse more than one stair at a time. The citation should be affirmed, but in myopinion a penalty of $700 is not warranted for a first offense of this kind.Considering the statutory criteria I find that a penalty of $300 isappropriate.Serious Citation No. 4Section 750(a)(2) provides as to steelerection that:(2) At no time shall there be more thanfour floors or 48 feet of unfinished bolting or welding above the foundation oruppermost permanently secured floor.?In complainant?s Exhibit 11, there isshown a column splice about five feet above ground level that is not welded,and the inspecting officer testified that there were none levels of steel aboveit. Exhibit 12 shows a welder working on a column splice and shows five levelsof steel above his position. Another photograph, Exhibit 13, shows a temporaryattachment of columns five feet above the third floor level. Finally, Exhibits14 and 15 portray unwelded column and beam attachments at level three. On thebasis of this evidence, the complainant charges serious violation of the citedregulation.Respondent contends that the procedurewhich it followed was necessary to align the columns and true up the structureprior to finished welding. However, respondent?s iron worker general foremantestified that ?The welding procedure called for us to go two floors above thecolumn splices and weld a moment connection, then drop down?.? All of theevidence confirms that description of the situation, namely that at least twofloors of steel above the finished welds were required; nowhere did respondentshow any necessity for exceeding the limit of four floors provided by theregulation. The inescapable conclusion from the record is that respondent fellbehind in its finished welding as the steel was erected, and that theregulatory limits of unfinished attachment were exceeded. While it is true thatthe columns were bolted as the structure went up, the bolting did notconstitute a finished attachment and the regulation calls for a permanentsecured floor with not more than four floors of unfinished bolting or weldingabove. In this case, the Secretary amended the original citation to extend theabatement date in order to afford time for respondent to bring the welding upto requirement. Abatement was completed without waiting for this proceeding tobe concluded.This citation goes to the heart ofrespondent?s work as a steel erector and occurred in the area of its primaryresponsibility to its employees. The violation is a serious one in that seriousinjury could probably result in the event of a structural failure caused by thecondition complained of. I conclude that the citation should be affirmed andthat the proposed penalty of $700 is appropriate.Serious Citation No. 5The complaint alleges a violation of 29C.F.R. 1926.750(b)(2), which provides as follows:(2) Where erection is being done by meansof a crane operating on the ground, a tight and substantial floor shall bemaintained within two stories or 25 feet, whichever is less, below and directlyunder that portion of each tier of beams on which bolting, riveting, welding,or painting is being done.?In this case the evidence shows that theerection was done by means of a crane operating on the ground. The Secretaryintroduced two photographs (Exh. 16 and 17) which showed employees ofrespondent working at level four and there being no tight floor within 25 feetthereunder. However, the evidence also shows that the men were not engaged inbolting or riveting or welding or painting; actually they were moving materialand handling lines before and after a welding procedure.Respondent contends that the regulationwas not violated since the specified work was not being done. A literal readingof the regulation supports that position. Moreover, if the Secretary hadintended to provide in the regulation for tight floors beneath work of any andall kinds, it would have been quite simple to have said so; we have noexplanation for the specific description of those operations beneath which afloor is required. In the absence of any clear basis for interpreting theregulation otherwise, there is no alternative to taking the words used in theirordinary, every day meaning. Accordingly, since no bolting, riveting, weldingor painting was being done, I conclude that the regulation did not apply. Thecitation must therefor be vacated.Non-serious Citation No. 6Item 1. It is provided in section451(a)(18) that no welding shall be performed on any staging suspended by meansof fiber or synthetic rope. Secretary?s Exhibit 18 shows one of respondent?semployees welding on a staging which the parties stipulated to have been suspendedby fiber rope. Respondent concedes on brief that a violation occurred and thecitation should therefor be affirmed. I find that the proposed penalty of $40is appropriate.Item 2. The violation alleged is of 29C.F.R. 550 which requires that ?An accessible fire extinguisher of 5BC rating,or higher, shall be available at all operator stations or cabs of equipment.?The inspecting officer testified that there was no extinguisher in the cab ofthe crane being operated by respondent. Respondent?s foreman testified thatthere was an extinguisher within 50 feet of the crane and respondent contendsthat this was ?accessible? within the meaning of the regulation. However, theregulation is more specific and requires that the extinguisher be accessible?at all operator stations or cabs?; in my opinion that means the extinguishermust be right at the station or cab, not 50 feet away. The citation shouldtherefor be affirmed. In view of the low gravity of the matter, I find that theproposed zero penalty is appropriate.Item 3. The inspecting officer found aloose cotter pin that was ready to fall out of the pin supporting the loadcarrying hook of the respondent?s crane. The Secretary therefor charged thatthe cotter pin was ?improperly applied? in violation of 29 C.F.R. 1926.550(b).Respondent does not deny the unsafe condition of the pin, but argues that theevidence has nothing to do with the manner in which the pin was ?applied?;rather that the pin was properly applied but subsequently became loose as the resultof some unknown event such as the pin striking another object and knocking itloose. Since the Secretary did not cite a regulation requiring the safemaintenance of the pin or equipment, and because there was no evidence that thepin was originally applied in an improper manner, the item must be vacated.Item 4. The inspecting officer requestedto see the records of daily and monthly inspection of the crane being used byrespondent, but no records were available at the worksite, contrary to section550(b)(2). Within an hour respondent had a daily report of inspection made outin writing, and available, but the monthly reports were kept at its Phoenixoffice and were not made available at the worksite until some later date. Theregulation was not, therefor, complied with and the citation must be affirmed.However, the Secretary proposed zero penalty for the violation and in view ofthe very low gravity of the offense, I find the assessment of no penalty to beappropriate.It is ORDERED that all citations, asamended, except for citation No. 5 and item 3 of citation No. 6, be and thesame are hereby affirmed, that citation No. 5 and item 3 of citation No. 6 beand the same are hereby vacated, that penalties be and the same are herebyassessed in the amounts of $100 each for citations No. 1 and 2, $300 forcitation No. 3, $700 for citation No. 4 and $40 for item 1 of citation No. 6;it is further ORDERED that this proceeding be and the same is herebydiscontinued.?Robert N. BurchmoreJudge OSAHRCJune 3, 1974[1] The standardstates:Every open-sided floor or platform 6 feetor more above adjacent floor or ground level shall be guarded by a standardrailing, or the equivalent, as specified in paragraph (f)(1) of this section,on all open sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboard wherever,beneath the open sides, persons can pass, or there is moving machinery, orthere is equipment with which falling materials could create a hazard.[2] Pursuant to 29C.F.R. 2200.2(b), this rule applies in the absence of a specific Commissionrule. In pertinent part, Rule 15(b) provides as follows:When issues not raised by the pleadingsare tried by express or implied consent of the parties, they shall be treatedin all respects as if they had been raised in the pleadings. Such amendment ofthe pleadings as may be necessary to cause them to conform to the evidence andto raise these issues may be made upon motion of any party at any time, evenafter judgment; but failure so to amend does not affect the result of the trialof these issues. . . .[3] The standardstates:All unused openings in floors, temporaryor permanent, shall be completely planked over or guarded in accordance with SubpartM of this part.\u00a0[4] The standardstates:Stairway railings and guardrails shallmeet the requirements of ? 1926.500(e) and (f).[5] See also mydissenting opinion in Secretary v. Harold Christiansen and Harold W.Christiansen, d\/b\/a Palmer Christiansen Company, OSAHRC Docket No. 3108,March 18, 1976.[6] Secretary v.Fort Worth Enterprises, Inc., 10 OSAHRC 280 (1974).\u00a0[7] That sectionprovides in pertinent part that:Each citation . . . shall describe withparticularity the nature of the violation, including a reference to theprovision of the . . . standard . . . alleged in have been violated. (Emphasisadded.)”