“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-662 PRESTRESSED SYSTEMS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 30, 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?78 (?the Act?). A decision of Administrative Law Judge John S. Patton isbefore the Commission pursuant to section 12(j) of the Act, 29 U.S.C. ? 661(i).??????????? Thecitation in Docket No. 76?662 alleged that Respondent, Prestressed Systems,Inc., had violated section 5(a)(2) of the Act by failing to comply with thestandard published at 29 C.F.R ? 1926.21(b)(2). This docket number wasconsolidated with Docket No. 16147, another case involving the same parties. Atthe hearing, Respondent stated that it was withdrawing its ?answer? and was notcontesting the citation at issue in Docket No. 76?662. The motion was grantedby Judge Patton, and the citation and $75 penalty proposed by the Secretarywere affirmed. The citations in Docket No. 16147 remained in dispute at the hearing.After the hearing, Judge Patton issued a decision in which he affirmed thecitations in Docket No. 16147 and noted Respondent?s withdrawal of its contestin Docket No. 76?662.??????????? Respondentfiled a petition for discretionary review listing both docket numbers. Thepetition for discretionary review alleged generally that the judge erred in hisfindings of fact and conclusions of law. The petition also stated thatRespondent would further elaborate on its arguments in its supporting brief.Both docket numbers were directed for review by former Commissioner Moran. Thedirection for review did not specify any issues to be considered by theCommission.??????????? Neitherparty has briefed any issues in Docket No. 76?662 nor has either party raisedany question about the Respondent?s withdrawal of its notice of contest. Wetherefore conclude that for this docket number the parties lack interest inhaving the case reviewed. We also conclude that the case involving this docketnumber is without any issue of compelling public interest. Therefore, we severDocket No. 76?662 from Docket No. 16147. In Docket No. 76?662, we affirm thejudge?s decision without review. Abbott-Sommer, Inc., 76 OSAHRC 21\/A2, 3BNA OSHC 2032, 1975?76 CCH OSHD ?20,428 (No. 9507, 1976); see Crane Co.,76 OSAHRC 37\/A2, 4 BNA OSHC 1015, 1975?76 CCH OSHD ?20,508 (No. 3336, 1976).The judge?s decision in Docket No. 76?662 retains the precedential value of anunreviewed judge?s decision. See Leone Construction Co., 76 osahrc 12\/E6, 3 BNA OSHC 1979, 1975?76 CCH OSHD ?20, 387(No. 4090, 1976), appeal withdrawn, No. 76?4070 (2d Cir. May 17, 1976).?SOORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUL 30, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 16147 & 76-662 PRESTRESSED SYSTEMS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: August 26, 1976DECISION AND ORDERAPPEARANCESKen Welsch, Esquire, and Thomas Brown,Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia,on behalf of complainant\u00a0Clair W. Langmaid,Esquire, General Counsel for Gable Industries, Atlanta, Georgia, and Mr. ElliotGoldstein, Safety Director of Prestressed Systems, Inc., Miami Springs,Florida, on behalf of respondent?STATEMENT OF THE CASEPatton, Judge:??????????? Thisis a consolidated proceeding pursuant to section 10 of the Occupational Safetyand Health Act of 1970 (29 U.S.C. ? 651, et seq., 84 Stat. 1950, hereinafterreferred to as the Act) contesting citations issued by the complainant againstthe respondent under the authority vested in complainant by section 9(a) of theAct.??????????? Citationsin case number 16147 allege that as a result of the inspection of a workplaceunder the ownership, operation and control of the respondent, located at aworksite known as the Omni Job, 350 Northeast 15th Street, Miami, Florida, therespondent has violated section 5(a)(2) of the Act by failing to comply withOccupational Safety and Health Standards 29 C.F.R. 1926.28(a), 29 C.F.R.1926.105(a), 29 C.F.R. 1926.451(a)(4), 29 C.F.R. 1926.700(a), 29 C.F.R.1926.701(a)(1), and 29 C.F.R. 1926.500(d)(1).??????????? Itwas alleged in case number 76?662, as a result of an inspection at saidworksite, that the respondent has violated section 5(a)(2) of the Act by failingto comply with Occupational Safety and Health Standard 29 C.F.R. 1926.21(b)(2).??????????? Atthe commencement of the hearing of these cases, the respondent stated that itwas withdrawing its answer as to case number 76?662 and was not contesting theissues in said case; therefore, the only disputed issues relate to theallegations of case number 16147.??????????? Hearingwas held in Miami, Florida, on March 30, 1976. Both parties appeared andpresented evidence and subsequent to said hearing have submitted briefs. Therewas no motion to intervene.LAW AND ISSUES OF THE CASE??????????? Itwas alleged that respondent violated standards 29 C.F.R. 1926.28(a) and 29C.F.R. 1926.105(a), in that respondent failed to provide protection toemployees by use of safety belts, safety nets, or the equivalent, while workingon top of an exterior concrete beam at the north side of area 4B of saidconstruction site, exposing employees to a fall hazard of approximately 60feet.??????????? Itwas alleged that respondent violated. standard 29 C.F.R. 1926.451(a)(4), inthat respondent failed to install guardrails and toeboards on all open sidesand ends of scaffold platforms more than ten feet above the floor level at the25-foot level of the hotel building and in the area between the existing JordanMarsh building and the parking garage on said construction site.??????????? Itwas alleged that respondent repeatedly violated ANSI A10.9?1970, Article6.2.1., as adopted by standard 29 C.F.R. 1926.700(a) and 29 C.F.R.1926.701(a)(1), at a worksite located at said construction project, in thatrespondent failed to provide formwork which was erected, supported, braced, andmaintained so that it would safely support all vertical and lateral loads whichmight be imposed on said forms at approximately the 60-foot level of ares 4B. It was also alleged that said standards wereviolated, in that additional support was not provided under the prestressedjoist with weakened 45 KIP hanger which was supporting the horizontal deckframework, thereby exposing employees installing the forms to fall injuryhazards.??????????? Itwas alleged that respondent repeatedly violated standard 29 C.F.R. 1926.500(d)(1)at said worksite, in that respondent failed to provide every open-sided flooror platform, six feet or more above adjacent or ground level, with standard guardrailing, or the equivalent, as specified in standard29 C.F.R. 1926.500(f)(1), such as at the opensidedperimeter of the 40-foot level of area 4B.??????????? Itwas alleged that respondent repeatedly violated standard 29 C.F.R.1926.500(d)(1), in that respondent failed to provide every open-sided floor orplatform, six feet or more above the adjacent floor or ground level, withstandard guardrailing, or the equivalent, asspecified in standard 29 C.F.R. 1926.500(f)(1), such as at the open-sided northperimeter of the 3C area, second floor of the J. C. Penney building, said sitebeing approximately 18 feet above the ground.??????????? Itwas alleged that all of said violations were serious.EVIDENCE AND EVALUATION OF THE CASE??????????? Theanswers of respondent admitted that respondent is a corporation having a placeof business and doing business in Miami, Florida, as a contractor engaged informing and prestressed joint installation. It was admitted that respondent isand, at all times material to this cause, has been an employer engaged in abusiness affecting interstate commerce within the meaning of the Act.??????????? As above-noted,it was alleged that respondent violated standards 29 C.F.R. 1928(a) and 29C.F.R. 1926.105(a) by failing to provide and require the use of personalprotective equipment, such as safety belts and safety nets. A penalty in theamount of $800 was proposed for this alleged violation.??????????? Mr.Francis L. Silverberg, compliance officer for the complainant, testified thatupon inspecting the premises on November 13, 1975, he observed an employee inthe hotel section walking on an unguarded, exposed beam at an approximately60-foot height in area 4B (Tr. 83). The employee walking on the beam was AlSuarez. Mr. Silverberg stated that Mr. Ray Dyer, vice-president in charge ofconstruction for respondent, Acknowledged that Mr.Suarez was an employee of the respondent. Said employee did not have a safetybelt tied off. Foreman Dwight Benson was just one level below Mr. Suarez, wherehe could easily observe said employee (Tr. 85). There was no safety net erected(Tr. 84). Mr. Dyer confirmed the fact that said employee did not have a safetybelt tied off, but stated this was a violation of instructions (Tr. 28). Hestated that the employee had a safety belt on, but it was not tied off (Tr. 28,29). He confirmed the fact that there was no net (Tr. 30). Mr. Dyer also confirmedthat the foreman was on the level below (Tr. 52).??????????? ForemanBenson was himself standing at the edge of an unguarded perimeter without atied off safety belt. Mr. Benson testified that he was installing joist at the65?foot level (Tr. 130). He stated that the reason he was not tied off wasbecause he was at the edge for only a very short period of time. He stated thatif he was near the edge of a building for any length of time, he would fasten asafety belt, but that he walked between the two scaffold frames, and there wasno danger of falling through the frames, so he felt it was unnecessary tofasten the end of the belt at that time. He was only going to be there a minute(Tr. 131).??????????? Mr.Silverberg also observed that Mr. Benson did not have on a tied off safety belt(Tr. 95). Mr. Silverberg observed Mr. Benson a second time at the east side ofthe 45-foot level of area 4B throwing slings down to the ground level. Heobserved said foreman for five minutes standing at the very edge of theperimeter which was not protected by guardrail, or the equivalent, and saidforeman did not have his safety belt tied off (Tr. 96, 97). Mr. Silverbergobserved a 12 foot high scaffold at the 25-foot level of the hotel building.This scaffold had no guardrail, and employees working on it were not tied off(Tr. 88). This was the first day of inspection (Tr. 87). On the second day ofinspection, he also observed employees on another scaffold that did not haveguardrails, and said employees were not tied off (Tr. 89).??????????? Mr.Benson testified that he had a safety belt on, although it was not tied off(Tr. 130). He testified that he was always instructed to fasten his safety belteach time he worked near the edge of the building, even in situations such asthe one in which the compliance officer observed him on the day of inspection(Tr. 130, 131). He stated that by not wearing the safety belt, he wasdisobeying instructions (Tr. 131).??????????? Mr.Sam MacDuffy, a foreman for the respondent, testifiedthat when he saw employees dismantling a scaffold improperly and reported it tosuperintendent Lake, superintendent Lake said, ?When you go back over there,you make sure those guys are hooked up and tell them I said ?Get hooked upwhile taking down the scaffold?? (Tr. 134).??????????? Mr.Lake testified that his instructions are that any time an employee works on theedge, he is to hook up his belt. He pointed out that if an employee simplywalks to the edge and drops something over and comes back, it would take longerto hook the belt than the time he would be there (Tr. 142, 143). He stated,however, that he never told a man not to tie off, even when walking to the edgefor just a second (Tr. 46). On the contrary, his instructions were that no manwas to walk to the edge without being hooked up on the edge (Tr. 146).??????????? Mr.Dyer testified that the employee walking on the beam did not have a safety belthooked up, but that he had been instructed to hook up (Tr. 28). Mr. Dyer alsoconfirmed that people were instructed at all times to tie off if setting joistat the corner of the building (Tr. 46). Mr. Dyer stated that he could not bethere on every occasion to observe every man all of the time, and that he wasnot aware that the man was working without tying off (Tr. 46).??????????? Therewas also substantial evidence to the effect that it was possible to tie off.Mr. Dyer testified, for instance, that the safest way would have been for theemployee to hook to the joist behind him each time and set the next one. As analternative method, the employee could walk on the scaffold board, which isbeside the beam at the same elevation (Tr. 47, 48). Said employee could be tiedoff at all times that other employees remain tied off (Tr. 53). He testifiedthat the safety belt is connected to a line six feet long (Tr. 53). It couldhave been attached to the beam behind the employee, which is usually four feetbehind where he is setting the next one (Tr. 53). If an employee wants to moveto the next beam or the next joist, he could move four or five feet (Tr. 83,54). An employee could tie off to the lifting hook and joist behind himself andthen move out to set the other one. We could tie off to the steel column with arope going along the top of the column of steel. He could have been walkingdown on a scaffold board and tied off to the scaffold plank, instead of walkingthe beam (Tr. 54). It was testified there was rope provided, but none was usedat this site because it was not necessary (Tr. 54).??????????? Onthe other hand, Mr. Thomas Callan, a carpenter employed by the respondent,testified that it is necessary to walk on joist and beams (Tr. 62, 63). Thebeams run in width from 16 to 24 inches (Tr. 63). There are places which haveextended stirrups to which they can tie off (Tr. 63). He testified that whenpossible, he does tie off (Tr. 63). He stated when he has to get a joist, it isaway from him, and he pulls it to him and has to walk several feet; and, insuch a situation, he could tie off, but it frightens him to hook up because heis hooking at the bottom of his feet and with thesafety belt hanging down, one could very well trip over it (Tr. 63, 64). Ropeshave been run from column to column providing something on which to hook (Tr.64). He testified that he is never in a situation where he is unable to tieoff, but at times he has not done so (Tr. 64). He is instructed to tie off atall times (Tr. 64). He has also seen other employees that were not tied off(Tr. 65, 66). This does not happen as often as once a day (Tr. 66).??????????? Therespondent testified that it has disciplined employees for such infractions ofrules. Mr. Dyer testified that a man was laid off because he did not tie offhis safety belt. Said employee attempted to sue the respondent, according tosaid witness. Mr. Dyer stated he has laid off people previously for infractionsof rules (Tr. 60).??????????? Itwas testified that the foreman is responsible for seeing to the wearing andusing of appropriate personal protective equipment (Tr. 127). Respondent has arather extensive safety program, holding safety meetings and giving theemployees written instructions requiring the wearing of belts.??????????? Notwithstandingevidence of disciplinary action taken and repeated instructions given regardingthe wearing of safety belts, the respondent does not appear to have adequatelyenforced the requirements that safety belts be worn. This is not an isolatedinstance in which an employee disobeyed respondent?s instructions. The employeewalking the beam was not wearing a safety belt. His foreman, Mr. Benson, was onthe level just below him at the time said employee was walking the beam, andMr. Benson did not have on a safety belt. There was a second occasion when thecompliance officer observed Mr. Benson on the edge of a high elevation whichhad no guardrail, and he was not tied off. Employees were observed working onscaffolds that did not have guardrails, and said employees were not tied off.This was seen in two different locations on two separate days.??????????? Asabove-noted, an employee of the respondent testified that although it ispossible to tie off at all times, he has not always done so, and that he hasobserved other employees working at elevations without tying off. It thereforeappears that violation of the company?s rules as to employees working at highelevations tying their safety belts was not infrequent. This case isdistinguishable from decisions holding that an unforeseen isolated occurrenceis not chargeable to a respondent. The responsibility is upon respondent ofrequiring that employees work under safe conditions and comply with thestandards. In view of the number of proven instances in which said standardswere not complied with, the respondent cannot escape responsibility for thedangerous condition in which its employees worked. A penalty in the amount of$850 is proposed. In view of the numerous instructions given employees, both inwriting and orally, and in view of disciplinary action taken in certaininstances, the respondent apparently did make an effort, although not asuccessful one, to enforce its rules; therefore, a penalty in the amount of$500 would be adequate.??????????? Itwas alleged that the respondent violated standard 29 C.F.R. 1926.451(a)(4) byfailing to guard open sides of scaffolds. A penalty in the amount of $235 wasproposed. It was alleged to be a repeat violation within the meaning of section17(a) of the Act. It was stipulated that a previous citation involving the samestandard had not been contested and Therefore, became a final order of theCommission by operation of law (Tr. 6).??????????? Mr.Silverberg testified that he observed a scaffold at a high elevation which hadno guardrails (Tr. 87, 88). The next morning he observed a similar scaffold inanother area without guardrails. One of said scaffolds was 12 feet high (Tr.87, 88, 89). Mr. Dyer admitted that the compliance officer called his attentionto a particular scaffolding that did not have aguardrail (Tr. 35). Mr. Dyer admitted that employees were working on thescaffolding at the time, and that there was no guardrail (Tr. 35).??????????? It isadmitted by the respondent in its brief that the evidence shows the requiredguardrails and toeboards were not in-place. It was testified that therespondent?s employees were improperly advised by the insurance inspector as tothe need for guardrails, and that when respondent learned of thismisinformation, it required employees on the scaffolding to tie off to the siderails with their safety belts (Tr. 36).??????????? Apparently,the respondent had not complied with the standard, and a violation occurred.The fact that the employees decided to follow the advice of the insurancerepresentative does not absolve the respondent of responsibility. It will benoted that the employer had previously failed to contest a citation resultingfrom an inspection of several months before in which scaffolding was notproperly guarded. A proposed penalty of $235 for a repeat violation is notunreasonable and should be affirmed.??????????? Itwas alleged that the respondent violated standard 29 C.F.R. 1926.500(d)(1) byfailing to guard an open-sided floor. This was alleged to be a repeatviolation, and a penalty in the amount of $1,700 was proposed.??????????? Asabove-stated, Mr. Benson was observed on two separate occasions standing on theedge of an unguarded perimeter and was not tied off. The second instance he wasobserved for five minutes throwing off slings. He was at an elevation ofapproximately 40 feet. In the previous citation, which was not contested, therewas an allegation of violation of said standard by similar conduct. It is notdisputed that guardrails were not installed. The respondent maintains, however,that its employees were instructed to wear safety belts. For the reasons setout above, this is not an adequate defense. The instances of violation of thesafety belt rule are so frequent that the respondent cannot be absolved fordisobedience of its instructions in this regard. Its employees were exposed inthe absence of guardrails, which are required by the standard. Standard 29C.F.R. 1926.500(d)(1) does not provide that guardrails should be erected onlyif the employees are not wearing safety belts. It is required that everyopen-sided floor or platform, six feet or more above adjacent floor or groundlevel, shall be guarded by standard railing, or the equivalent, except where thereis entrance to a ramp, stairway or fixed ladder. A penalty in the amount of$1,700 is proposed for this violation. A penalty in the amount of $800 would beappropriate.??????????? Itwas alleged that the respondent violated standard 29 C.F.R. 1926.500(d)(1) byfailing to guard perimeter scaffolding which was being dismantled.??????????? Mr.Thomas Callan testified that their instructions as to perimeter scaffoldingwere to pull them inside the building, loosen the screws, and dismantle them(Tr. 77). There were three carpenters and a couple of laborers on the floortaking apart the scaffolding. The carpenters were taking it down, and thelaborers were stacking it up. One of said employees was standing at the bottomwith his back toward the edge, about three or four feet from the edge. Therewere no guardrails or chains (Tr. 68, 69, 70). He lost his balance as they wereletting the scaffold down, he fell over backward and rolled off the building.He later died (Tr. 70). They were at the 20 to 25-foot level. The employeeswould get to three feet, two inches from the edge to pull the scaffold in (Tr.71). For two or three days they had been pulling the scaffolding down anddismantling it on the upper floor at the 45-foot level (Tr. 69, 70). Chains hadbeen used, but they were not in use at the time of inspection (Tr. 71).Laborers, in dismantling, were three to four feet from the edge (Tr. 72).??????????? Mr.Sam MacDuffy, one of respondent?s labor foremen,testified that just prior to the instance that gave rise to said citation, hehad advised the men performing the dismantling that they were doing itimproperly, and he informed Mr. Lake, job superintendent, of same. Hethereafter instructed them to use their safety belts (Tr. 133?136).??????????? Itwas the contention of the respondent that the responsibility for erectingguardrails after dismantling was that of the general contractor. In the brief,the position is taken that it would be impossible to perform the work with theguardrails in position. The evidence, however, does not substantiate this contention.No evidence is found, nor is any cited by respondent, to the effect that it wasimpossible to perform the work with the guardrails erected. It will be notedthat the testimony was that the work had continued for two or three days.Certainly, this gave sufficient time for the respondent to have ascertainedwhether it was being done properly or not. Safety belts were not being used,and there was no protection against an employee falling. An employee did fallwith tragic results. It is not sufficient to say that they had contracted forthe general contractor to perform said work. There is no indication that theycomplained that the general contractor had not done so, nor that it would havecaused any problem with the general contractor had they done so themselves.Responsibility for its own employees being in a safe condition is theresponsibility of the respondent, irrespective of a contract with the generalcontractor. A company cannot contract away its legal obligations under the Act.It is a repeat violation, and the requested penalty of $1,085 would appear tobe proper.??????????? Theabove instances cannot each be taken in isolation. There were a number ofinstances in which employees were working at high elevations without safetybelts. It will be noted that there were at least three instances in whichemployees were working at high elevations without the guards required under theAct. The respondent cannot claim ignorance of the law as an excuse for theseviolations. Only four months before, there had been a citation issued which wasnot contested, and which in the main involved the same type of violations asthose involved in the case at bar. The overall record of the respondent doesnot indicate safeguard of employees working at substantial heights.??????????? Itwas alleged that formwork erected by respondent was not adequately supported,braced, and maintained so that it would safely support all vertical and lateralloads. It was also alleged to be a repeat violation. Prestressed members weremanufactured and delivered to the job by the respondent (Tr. 16). It would allbe poured at one time, except for the columns (Tr. 17). The job on this sitewas to prepare the horizontal columns; another contractor was to prepare thevertical columns (Tr. 17). Soffit was described as a prestressed member whichtakes the place of a poured-in-place beam. It was testified by Mr. Dyer thatthey prestress the soffit beam member, which is the bottom of the beam, andthen set the prestressed joist on it and pour them together (Tr. 18).??????????? Thebeam carries the load of the joist and the total floor load. The joist carriesonly a portion of the load each time, and is spaced closer together (Tr. 18).Twenty-five KIPS is the number of tons of weight that the KIP hanger willcarry. This hanger is designed where there is an expansion joint. The slab inthe hanger is poured one way and the beams are poured the other way, so theyhave a separation of the building; and, when the building starts to move orwork, the slabs and beams do not crack (Tr. 19). The KIP hanger was made fromreinforced steel (Tr. 19). The bar extends out so that if concrete started tocrack, the steel bar would stop the concrete from cracking (Tr. 20). Verticalbars are the supports. Two bars carry the load of the prestressed member. Theylift the prestressed joist with a crane, and it is set in a concrete beam (Tr.20, 22, 23, 24). It is not welded (Tr. 24, 25). The joist hangs below the beam.They lay the beam out where the joist is set and hoist it with a crane and set itin place (Tr. 25). Generally, three or four employees are involved in theerection, not including the crane operator (Tr. 26). A man on a truck hooks itup and sends it to them. One employee is at each and of the joist (Tr. 26). Thejoist at the 60-foot level fell three or four feet (Tr. 37). In doing so, itcaused Mr. Benson to fall a distance of 17 or 18 feet (Tr. 37).??????????? Mr.Dyer stated that upon inspection, he found that there was a void below thevertical member (Tr. 39). Scaffolding beneath the beam was to support thesoffit beam (Tr. 46). The procedure was to loosen the screws, pull thescaffolding in a good clear distance away from the outside of the building, andthen dismantle it (Tr. 49). Instructions were to take it down as usual and pullthe perimeter scaffold into the building (Tr. 79).??????????? Mr.Silverberg stated that there was a concrete void directly under where thevertical bar comes down from the hanger plate to the top of the prestressedjoist (Tr. 92). At the time the joist fell, the employees were in the processof laying the plywood decking which lays on the hanglineswhich are attached to the joist (Tr. 94).??????????? Mr.Sam MacDuffy, foreman, testified that he had observedemployees dismantling the scaffold. He stated three men were near the perimeterof the building. He stated they were dismantling the scaffold improperly, andhe went to tell superintendent Lake, and the superintendent told him to makethem put on safety belts (Tr. 133, 134). He stated laborers and carpentersstopped him along the way, and it took him a while to get back (Tr. 134). Whenhe returned, he heard that a man had fallen (Tr. 135, 136). He stated that hisjob is to tell the superintendent, rather than the employees, if they are doingvertical member of the KIP responsibility is just to assign the employees wherethey are to work (Tr. 137).??????????? It isthe position of the complainant that what caused the fall was the weakened KIPhanger, and that the hanger was weakened because it was void in the joist, therebynot properly imbedding the vertical member of the KIP hanger. Mr. Dyer statedthat in his opinion, the vertical member had not been set into the concrete(Tr. 39).??????????? Standard29 C.F.R. 1926.701 states as follows:. . . Formwork and shoring shall bedesigned, erected, supported, braced, and maintained so that it will safelysupport all vertical and lateral loads that may be imposed upon it duringplacement of concrete.\u00a0??????????? Therespondent maintains that evidence does not establish the cause of the fall,and that to find the respondent in violation would be to adopt the doctrine ofres ipsa loquitur. In view of the above testimony,not only of the compliance officer, but also of the vise-president of thecompany, that the problem was that the vertical member was not properly set inconcrete, there is material evidence establishing a cause for the fall. Therespondent was the manufacturer of said vertical member, and apparently it wasnot manufactured in such a way as to support the lateral loads imposed upon it.The laying of plywood decking was a part of the operation of placement ofconcrete and standard 29 C.F.R. 1926.701 applies. Respondent, therefore, is inviolation of said standard.??????????? Therehad been a prior citation in which there had been a failure to provide formworkinsuring adequate support, bracing, etc. This citation was not contested. Adefect of this nature could have very tragic consequences. It is true that someerrors will creep into most types of construction. In view, however, of thefact that this is a repeat violation and the fact that the penalty proposed isonly $285, it does not appear that said penalty is excessive.FINDINGS OF FACT??????????? 1.Respondent is a corporation having a place of business and doing business inMiami, Florida, where it is a contractor engaged in forming and prestressedjoint installation. Respondent, at all times relevant to this cause, has beenengaged in business affecting interstate commerce within the meaning of theAct.??????????? 2. Onor about November 13?17, 1975, the respondent was engaged in construction atthe Omni construction project at 350 Northeast 15th Street, Miami, Florida.??????????? 3.During said period of time, an employee of respondent was permitted to work onan exterior beam at a 60-foot level, without wearing a safety belt or withoutthe erection of a safety net.??????????? 4.The foreman of said employee was working at a location from which said employeewas visible.??????????? 5.Said foreman, Mr. Benson, was on two occasions working close to the edge of anunguarded perimeter at a high elevation without a safety belt.??????????? 6.Employees worked on scaffolds which were unguarded, and said employees did nothave their safety belts tied off.??????????? 7.Employees, on prior occasions, had worked at unguarded high elevations withoutsafety belts.??????????? 8.The rules of respondent required its employees to wear safety belts whenworking at high elevation which were unguarded, and said employees had been soinstructed.??????????? 9.Some employees had been disciplined for violation of the rules with referenceto tying off of safety belts.??????????? 10. Respondentmaintained scaffolds at a high elevation at which its employees worked; saidscaffolds did not have guardrails or toeboards.??????????? 11.Respondent permitted its employees to work on open-sided floors which did nothave guardrails or toeboards.??????????? 12.Employees were permitted by the respondent to engage in dismantling a perimeterscaffold which was at a high elevation and had no perimeter guardrail orequivalent protection.??????????? 13.Respondent manufactured and erected a vertical beam which was not properly setin concrete and fell, causing an employee to fall to his death.CONCLUSIONS OF LAW??????????? 1.Respondent is engaged in a business affecting interstate commerce and is withinthe jurisdiction of the Occupational Safety and Health Act.??????????? 2.Respondent violated standards 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a) bypermitting its employees to work at high elevations without safety belts andsafety nets.??????????? 3.Respondent violated standard 29 C.F.R. 1926.451(a)(4) by failing to guard opensides of scaffolds with proper guardrails and toeboards; said violation was arepeat violation.??????????? 4.Respondent violated standard 29 C.F.R. 1926.500(d)(1) by failing to guard everyopen-sided floor with proper guardrails and toeboards.??????????? 5.Respondent violated standard 29 C.F.R. 1926.500(d)(1) by failing to guard anopen-sided floor at the time employees were engaged in dismantling perimeterscaffolding.??????????? 6.Respondent violated standards 29 C.F.R. 1926.700(a) and 29 C.F.R.1926.701(a)(1) by failing to provide formwork which was erected, supported,braced and maintained so that it would safely support all vertical and lateralloads.ORDER??????????? Respondentis in violation of standards 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a) byfailing to require its employees to tie off safety belts while at a highelevation and by failing to provide safety nets. A penalty in the amount of$500 is assessed for said violation. The proposed abatement date is affirmed.??????????? Respondentis in violation of standard 29 C.F.R. 1926.451(a)(4) by failing to guard opensides of scaffolds. This is a repeat violation. A penalty in the amount of $235is assessed for said violation. The proposed abatement date is affirmed.??????????? Respondentis in violation of standard 29 C.F.R. 1926.500(d)(1) by failing to guard theopen-sided floor on which its foreman was standing near the edge. This is arepeat violation. A penalty in the amount of $800 is assessed for saidviolation. The proposed abatement date is affirmed.??????????? Respondentis in violation of standard 29 C.F.R. 1926.500(d)(1) by failing to guard everyopen-sided floor while its employees were dismantling perimeter scaffolding.This is a repeat violation. A penalty in the amount of $1,085 is assessed forsaid violation. The proposed abatement date is affirmed.??????????? Respondentis in violation of standards 29 C.F.R. 1926.700(a) and 29 C.F.R. 1926.701(a)(1)by failing to provide formwork which is erected, supported, braced, andmaintained so that it would safely support all vertical and lateral loads. Apenalty in the amount of $285 is assessed for this violation. The proposedabatement date is affirmed.?Dated this 27th day of July 1976.?JOHN S. PATTONJudge”