“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3028 RINGLAND-JOHNSON, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 16, 1976?DECISION?BEFORE BARNAKO, Chairman; MORAN andCLEARY, Commissioners.BARNAKO, Chairman:AFebruary 27, 1974, report of Administrative Law Judge Alan M. Weinman is beforethis Commission for review pursuant to section 12(j) of the Occupational Safetyand Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter ?the Act?). JudgeWeinman would vacate a serious citation which alleged a violation of section5(a)(1) of the Act, and item 2 of a nonserious citation which alleged aviolation of 29 C.F.R. 1926.500(d)(1). He would affirm item 1 of the nonseriouscitation which alleged a violation of 29 C.F.R. 1926.451(a)(13) and wouldassess a penalty of $40. For the reasons set forth herein, we adopt JudgeWeinman?s recommendation as to item 1 but conclude that he erred inrecommending that the serious citation and item 2 of the nonserious citation bevacated.[1]Thefacts are these: Respondent was engaged in construction work on a circularconcrete structure or bin which measured approximately 45 feet in diameter.Inside the bin, five men were observed pouring pumped-in concrete into formswhile standing on 2 x 10 planks. The planks were laid as a wood grid across atubular welded scaffold frame which served as a temporary work surface. Theplanks were laid sufficiently far apart from each other to result in gaps 30 to40 inches wide, through which employees could fall to the ground level 19??feet below. When work was completed at one form, the employees would move theplanks to the area close to the next form.Aten-foot-long runway consisting of two 2 x 10 planks ran between a scaffoldplatform outside of the bin and the grid on which employees were working insidethe bin. The runway was not equipped with guardrails and was 19?? feet abovethe ground. The runway provided the most direct and convenient route betweenthe grid inside the bin and the scaffold outside the bin. The hose throughwhich the concrete was being pumped ran alongside the runway.Thescaffold inside the bin was not provided with a ladder. Employees used thehorizontal support rungs on the ends of the scaffold frame as a means ofascending and descending in the bin. The support rungs were spaced at varyingintervals, ranging from 17 to 27 inches. Some of the rungs were only 6 incheswide.Onthese facts, Respondent was issued a serious citation alleging a violation ofthe general duty clause[2]on the basis that the wood grid system on which employees were workingconstituted a recognized hazard causing or likely to cause death or seriousphysical harm. The nonserious citation alleged violations of the special dutyclause[3]in that the runway was not equipped with guardrails contrary to 29 C.F.R.1926.500(d)(1) and in that a ladder or its equivalent was not provided on thescaffold inside the bin contrary to 29 C.F.R. 1926.451(a)(13).ALLEGEDVIOLATION OF SECTION 5(a)(1)JudgeWeinman found that the conditions as alleged in the serious citation existed:that is, that employees were exposed to falls of 19?? feet due to unguarded anduncovered gaps in the wood grid on which they were working. He further foundthat the condition constituted a recognized hazard likely to cause death orserious physical injury. Nevertheless, he would vacate the citation since heagreed with Respondent?s contention that a specific standard, 29 C.F.R.1926.500(b)(1), applied.[4]This standard is codified in Subpart M of Part 1926, and the Subpart isentitled ?Floor and Wall Openings, and Stairways.? Subparagraph 500(b)(1)provides in pertinent part that ?floor openings shall be guarded by a standardrailing and toeboards or cover.? A floor opening is defined at 29 C.F.R. 1926.502(b)as ?an opening measuring 12 inches or more in its least dimension in any floor,roof or platform through which persons may fall.? A platform is defined in 29C.F.R. 1926.502(e) as ?a working space for persons, elevated above thesurrounding floor or ground, such as a balcony or platform for the operation ofmachinery and equipment.? The Judge concluded from these definitions that thegrid on which the employees were working was a platform and therefore that thegaps between the planks were floor openings, subject to the requirements of1926.500(b)(1).TheJudge determined correctly that the grid was ?a working space for persons . ..? such as a ?. . . platform? but we do not agree that subparagraph 500(b)(1)applies. Rather what is involved here is the working surface of a scaffold,specifically, the working surface of a tubular welded scaffold. And a scaffoldis defined at 29 C.F.R. 1926.452(b)(27) asAny temporaryelevated platform and its supporting structure used for supporting workmen ormaterials or both.?Asis evident from the facts the entire structure was portable and moved accordingto the needs of the job. Thus it was a temporary elevated platform within themeaning of the term ?scaffold? and not a platform having the degree ofpermanency suggested by the words ?operation of machinery and equipment? byparagraph 502(e).Sincewe determine that the structure is a scaffold within the meaning ofsubparagraph 452(b)(27), the question is whether any of the scaffoldingstandards of 29 C.F.R. 1926.451 apply. ?Ifthey do not, then, the general duty section applies[5]so long as Complainant has proven its application.Tubularwelded scaffolds in the Construction Industry are regulated by 29 C.F.R.1926.451(d) and subparagraph (8) of paragraph (d) provides that ?maximumpermissible spans or planking shall be in conformity with paragraph (a)(10)? ofsection 451. The grid constitutes the planking. Paragraph (a)(10) provides thatplanking shall be of scaffold grades or equivalent and it and paragraph (a)(11)prescribes the maximum permissible spans for various size planks such as 2 x10s for different loading conditions and lumber types. Paragraph (a)(12)provides that planks shall be overlapped by 12 inches or secured from movement.Obviously, overlapping applies to the plank ends; 2 x 10 planks cannot beoverlapped by 12 inches. Insofar as we are able to determine the Secretary hasnot promulgated a standard that requires tight planking of the platform portionof a tubular welded scaffold. In this regard we note that tight planking isrequired for ?manually propelled mobile scaffolds? (29 C.F.R. 1926.451(e)(4)),?outrigger scaffolds? (29 C.F.R. 1926.451(g)(4)), ?two point suspensionscaffolds? (29 C.F.R. 1926.451(i)(10)(ii), and the like.Inasmuchas we find that neither 1926.500(b)(1) nor any other standard applies to theconditions here,[6] we conclude that section 5(a)(1)of the Act applies.[7] Judge Weinman found thatthe conditions as alleged in the serious citations existed. Regarding theexistence of feasible measures that would have reduced the existence of thehazard, the compliance officer testified that Respondent would not have beenissued a citation if the planks had been laid so that the spaces were not largeenough for an employee to fall through. Consequently, we find that Respondentwas in violation of the general duty clause based on the facts as found by theJudge.Weturn now to the assessment of an appropriate penalty. Respondent is of moderatesize, employing between 65 and 200 employees. It does not have a prior historyunder the Act and its good faith was not questioned. However, the gravity ofthe violation was high. Five men were exposed to falls while working on boardswhich were laid approximately 30 to 40 inches from each other. On balance, weconclude that a penalty of $500 is appropriate and will serve the purposes ofthe Act.ALLEGEDNONSERIOUS VIOLATION OF 29 C.F.R. 1926.500(d)(1)Respondentwas cited for a nonserious violation of 1926.500(d)(1) in that a runway was notequipped with guardrails of any kind. Judge Weinman would vacate this item ofthe citation on the basis that 1926.500(d)(2) applies to runways.[8]In this regard, he denied the Secretary?s motion, made during the course of thehearing, to amend the citation and complaint to allege the applicable standard.However, he acknowledged that Respondent would not be prejudiced by the amendment.Onreview, the Secretary urges that the Judge?s denial of its motion to amend wasan abuse of discretion since even the Judge found Respondent would not beprejudiced by an amendment. Respondent contends that the motion was untimely inthat the Secretary?s failure to notice the mistake in the cited standard priorto the time of the hearing was unjustified.Weconclude that the Judge erred in refusing to permit an amendment. The citationand complaint both contained descriptions of the alleged violation whichapprised Respondent of the condition which was the subject of the citation. Thecitation of the incorrect standard was shown to be due to inadvertence ratherthan any attempt to mislead Respondent. In such circumstances, leave to amendshould be freely given. See Rule 15(a) of the Federal Rules of Civil Procedure.Therefore, we reject the Judge?s recommendation and grant the Secretary?smotion to amend the citation and complaint to allege a violation of1926.500(d)(2).Thepreponderant evidence establishes that Respondent was in violation of1926.500(d)(2). It was undisputed that the runway lacked guardrails. We haverecently stated that exposure to hazard is to be determined by a rule ofaccess. Gilles & Cotting, Inc., No. 504, BNA 3 OSHC 2002, CCH OSHCpara. 20,448 (Feb. 20, 1926). In this case, five employees were working inclose proximity to the runway. The runway provided the most convenient anddirect passage between the wood grid inside the bin and the scaffold outsidethe bin. On the basis of these facts, we find that access has been established.In any event, Respondent?s job superintendent admitted to the complianceofficer during the inspection that employees used the runway.[9]Accordingly, we find a violation of 1926.500(d)(2).Weturn now to the assessment of an appropriate penalty for the violation.Respondent is of moderate size, has no prior history, and its good faith hasnot been questioned. The gravity of the violation is moderately high. Therunway was entirely unguarded and was located 19?? feet above ground level. Onbalance, we conclude that a penalty of $65 is appropriate and will serve thepurposes of the Act.ALLEGEDNONSERIOUS VIOLATION OF 29 C.F.R. 1926.451(a)(13)Respondentwas cited for a nonserious violation of 1926.451(a)(13)[10]in that the scaffold was not provided with an access ladder or its equivalent.Judge Weinman would affirm this violation, finding that the horizontal supportrungs on the ends of the scaffold frames did not provide means of accessequivalent to that provided by a ladder. He would assess a penalty of $40.Onreview, Respondent urges primarily that the scaffold framework did provide anequivalent means of access.[11]We determine that, contrary to Respondent?s contention, the Judge?s findingthat the support rungs did not provide an equivalent means of access to thescaffold is supported by preponderant evidence. Accordingly, we will notdisturb the finding. Particularly persuasive in this regard is the unrebuttedtestimony that the rungs were spaced at varying intervals and some were onlysix inches wide. Consequently, we adopt the Judge?s recommendation thatRespondent was in violation of 1926.451(a)(13) and that a penalty of $40 beassessed.Accordingly,we find that Respondent was in violation of section 5(a)(1) of the Act andassess a $500 penalty therefor. We further find that Respondent was innonserious violation of 29 C.F.R. 1926.500(d)(2) and 29 C.F.R. 1926.451(a)(13)and assess penalties of $65 and $40 respectively. It is so ORDERED.?FOR THE COMMISSION:?William S.McLaughlinExecutiveSecretaryDATE: JUN 16,1976?MORAN,Commissioner, Concurring in Part, Dissenting in Part:Thedisposition[12] ordered in JudgeWienman?s decision is correct and should be affirmed.[13]Accordingly, I concur with the Commission?s affirmance of a nonseriousviolation of 29 C.F.R. ? 1926.451(a)(13). I disagree, however, with theCommission?s action on the remaining charges.Mycolleagues err in finding that respondent violated 29 U.S.C. ? 654(a)(1).Although they correctly conclude that no specific standards apply to thealleged violation, they incorrectly hold that the testimony of complainant?sinspector established ?the existence of feasible measures that would havereduced the existence of the hazard.? The majority states that the inspectortestified that respondent would not have been cited if planking ?had been laidso that the spaces were not large enough for an employee to fall through.? Thisis wholly inaccurate. The inspector testified only that a serious citation wouldnot have issued if a man could not have fallen through the holes, he saidnothing about planking, nor did he indicate that a citation for a nonseriousviolation would not have been issued in that instance.InNational Realty and Construction Company, Inc. v. OSAHRC 409 F.2d 1257,1268 (D.C. Cir. 1973) the Court specifically held that?[T]he Secretarymust be constrained to specify the particular steps a cited employee shouldhave taken to avoid citation, and to demonstrate the feasibility and likely utilityof those measures.?Complainantherein has simply not met this burden, and Messrs. and Cleary are actingcontrary to the following admonition in National Realty by applying their owntheory to perfect complainant?s case:?Only by requiringthe Secretary, at the hearing, to formulate and defend his own theory of what acited defendant should have done can the Commission and the courts assureeven-handed enforcement of the general duty clause.??489 F.2d at 1268.?Thissame majority recognized the efficacy of the National Realty ruling vis-a-visthe Court?s concern that employers should have of the means for compliance in Secretaryv. Ace Sheeting & Repair Company OSAHRC Docket No. 5284, December 31,1975. By discovering ? measures? in the instant case, however, the Commissionmajority digressed therefrom by subscribing to the deus ex machina theory ofevidence.Ialso take exception to the majority?s affirmance of the citation for nonseriousviolation of 29 C.F.R. ? 1926.500(d)(2). The citation pertaining to this itemalleged that:?A two-plank(2\u2033? x 10\u2033? wide runway connecting a scaffold platform and anelevated wooden grid, 19 feet, 6 inches above ground level, was not equippedwith guardrails.?\u00a0Mycolleagues affirm the citation by determining that employee access to theunguarded runway is established because (1) it provided the most convenient anddirect passage between the wood grid inside the bin and the scaffold outsidethe bin, and, (2) the contradictory evidence presented by respondent?s superintendentwas not credible. I disagree with that determination.Myreasons for rejecting the Barnako-Cleary crystal ball ?access? rule in favor ofa rule that requires complainant to establish actual employee exposure arefully set forth in Secretary v. Gilles & Cotting, Inc., OSAHRCDocket No. 504, February 20, 1976 (dissenting opinion). Since the evidence inthis case does not establish that any of respondent?s employees were actuallyexposed to the unguarded runway, the citation should be vacated. In addition,however, I am constrained to comment on my colleagues? methodology in arrivingat their credibility determination.[14]Themajority first states that respondent?s superintendent admitted to theinspector during the inspection that employees used the runway. In order tomaintain public confidence in the Commission?s fairness in considering theevidence, they state at footnote 9 that:?Although the jobsuperintendent contradicted this statement at the hearing by testifying that hedid not recall any employee using the runway, Judge Weinman questioned thesuperintendent?s testimony at the hearing as generally incredible. Wewill not disturb a Judge?s credibility determination.? (Emphasis supplied.)?WhatMessrs. Barnako and Cleary have done in this instance, however, is tocharacterize specific testimony given in regard to the 29 U.S.C. ? 654(a)(1)violation as omnipresent in the record. This is both unfair and false. JudgeWienman, whose decision is attached hereto as Appendix A, did not find thesuperintendent?s testimony ?generally incredible,? but instead found that itwas not credible with respect to the size of the floor openings which were thesubject of the general duty clause violation. The Judge made no finding offacts regarding the 29 C.F.R. ?\u00a01926.500(d)(2) charge. Nevertheless, mycolleagues discern no distinction in their haste to convict and disregard thosebasic evidentiary considerations which most adjudicators adhere to asfundamental to due process.Accordingly,I do not join in the majority?s affirmance of the above-mentioned chargesbecause to do so would be to adopt rulings which are not supported in law orfact.?APPENDIX A\u00a0UNITED STATES OF AMERICA\u00a0OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3028 RINGLAND-JOHNSON, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 27, 1974?DECISION AND ORDER?APPEARANCES:STEPHEN REYNOLDS, Esquire, UnitedStates Department of Labor, Office of the Solicitor, Kansas City, Missouri forthe Secretary of Labor\u00a0I. JOHN ROSSI, Esquire, P. O. Box631, Des Moines, Iowa, for the Respondent?STATEMENTOF THE CASEAlan M. Wienman,Judge, OSAHRC:This is a proceeding pursuant to Section 10 of theOccupational Safety and Health Act of 1970 (29 USC 651 et seq., hereaftercalled the Act) contesting Citations issued by the Complainant against theRespondent under the authority vested in Complainant by Section 9(a) of thatAct. One Citation for Serious Violation alleges on the basis of an inspectionof a workplace under the ownership, operation or control of Respondent locatedat Clinton, Iowa that the Respondent violated Section 5(a)(1), the General DutyClause of the Act. A second Citation is for Other Than Serious Violations andalleges that the Respondent violated the Act by failing to comply with certainOccupational Safety and Health Standards promulgated by the Secretary pursuantto Section 6 thereof. Both Citations were issued May 2, 1973.TheCitation for Serious Violation sets forth the alleged violation in thefollowing form: Standard or regulation allegedly violated \u00a0 Date on which alleged violation must be corrected Description of alleged violation \u00a0 Public Law 91?596, Section 5(a)(1), General Duty Clause of the Act \u00a0 Immediately Upon Receipt Of This Citation. \u00a0 (Building #217.) A wooden grid system supported by tubular welded frame scaffolds at a height of 19 1\/2 feet had openings large enough for employees to fall through. A total of five men were working from this grid (concrete was being placed in tubular forms). At a given time, four men together would be handling and\/or holding a line from a concrete pump. \u00a0 \u00a0Thealleged violation in this citation was cited from the ?Occupational Safety& Health Act of 1970? Public Law 91?596, dated December 29, 1970.TheCitation for Other Than Serious Violations sets forth the alleged violations inthe following form: Item number Standard of regulation allegedly violated Date on which alleged violation must be corrected Description of alleged violation \u00a0 1 29 CFR 1926.451(a)(13), page 27535, Column 3 Immediately Upon Receipt Of This Citation \u00a0 (Building #217.) Two ironworkers had to climb on scaffold frames to reach their work areas. The scaffold frames were six feet and six inches high per frame and were built three frames high. No access ladder was provided for the men, and the six foot and six inch scaffold frames do not provide equivalent safe access because of their design. \u00a0 2 29 CFR 1926.500(d)(1), page 27543, Column 3 Immediately Upon Receipt Of This Citation \u00a0 (Building #217.) A two-plank (2\u2033 x 10\u2033 wide) runway connecting a scaffold platform and an elevated wooden grid, 19 feet, 6 inches above ground level, was not equipped with guardrails. \u00a0 \u00a0Thealleged violations in this citation were cited from the Federal Register, datedDecember 16, 1972, Volume 37, Number 243, Part II, Regulations forConstruction.Thestandard codified as 29 CFR 1926.451(a)(13) provides as follows:1926.451Scaffolding.(a) GeneralRequirements . . .(13) An accessladder or equivalent safe access shall be provided.?\u00a0Thestandard codified as 29 CFR 1926.500(d)(1) provides as follows:?(d)Guarding of open-sided floors, platforms and runways. (1) Every open-sidedfloor or platform 6 feet or more above adjacent floor or ground level shall beguarded by a standard railing, or the equivalent, as specified in paragraph(f)(1) of this section, on all open sides, except where there is entrance to aramp, stairway, or fixed ladder. The railing shall be provided with toe-boardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials could create a hazard.??Pursuant to enforcement procedures set forth in Section10(a) of the Act, Respondent was notified by letter dated May 2, 1973 fromWarren Wright, Area Director, Occupational Safety and Health Administration,U.S. Department of Labor that he proposed to assess a penalty of $500.00 forthe alleged serious violation, penalties of $40.00 and $65.00, respectively,for Item 1 and Item 2 of the Citation for Other Than Serious Violations.Respondent filed a timely Notice of Contest in which itcontested all Citation items and Proposed Penalties. After Complaint and Answerhad been filed by the parties, the case came on for hearing at Davenport, Iowaon September 5, 1973.THE ISSUESThe initial issues framed by the pleadings are whetherRespondent violated the Act as alleged in the Citations issued May 2, 1973,and, if so, what penalties, if any, are appropriate therefor.Additional issues were raised at the close ofComplainant?s case when Respondent made several Motions for dismissal whichwere taken under advisement. In substance, Respondent?s Motions urged:(a) That theentire matter be dismissed because the Citations failed to state the date thealleged violations occurred;?(b) That Item 2of the Citation for Other Than Serious Violation be dismissed because theallegation of a violation of 29 CFR 1926.500(d)(1) in Paragraph IV(a) of theComplaint refers to employees being exposed to an allegedly dangerous conditionwhile the Citation does not refer to employee exposure;?(c) That theallegation of a violation of the General Duty Clause, Section 5(a)(1) of theAct, be dismissed because there was a specific job safety standard applicableto the conditions described in the Citation for Serious Violation;?(d) That Item 2of the Citation for Other Than Serious Violation be dismissed because thestandard cited, 29 CFR 1926.500(d)(1), was acknowledged to be an incorrectreference by Complainant; (Respondent further moved that Complainant?s Motionto Amend the Citation and substitute a reference to 29 CFR 1926.500(d)(2) inplace of 29 CFR 1926.500(d)(1) be denied.)?*3 (e) That Item1 of the Citation for Other Than Serious Violation be dismissed because thecited regulation, 29 CFR 1926.451(a)(13), is unenforceably vague.?In his Brief Counsel for Respondent raised additionalissues relating to?(1) The conductof the inspection insofar as it resulted from the Compliance Officer visitingthe worksite area for the purpose of inspecting another employer pursuant to anemployee complaint;?(2) Thepropriety and legal affect of Paragraph VII of the Complaint which warned thatthe description of the violations had been slightly changed and attempted toamend the Citation to conform to the allegations of the Complaint ?insofar asthe Citation may be inconsistent with . . . this Complaint.??SUMMARY OF THE EVIDENCE AND DISCUSSIONThe InspectionUldis Sid Levalds, OSHA Compliance Officer, testified heinspected Respondent?s construction site at 1250 Beaver Channel Parkway,Clinton, Iowa on April 12, 1973 (T. 8). Levalds had come to the area because ofa complaint filed by an employees? union of Clinton Corn Products (T. 29), andhe found some construction work going on within the food company plant (T. 44).Levalds was accompanied by a representative from Clinton Corn Products who ledhim to a field office shanty where he met Duane Lord, identified as asuperintendent with Ringland-Johnson, Inc. Levalds presented his credentials toLord, explained the purpose of the visit as a general type inspection and askedLoad to show him his work areas. They then proceeded to look at two circularconcrete structures that constituted Respondent?s work areas (T. 9).Respondent urges the proposition that since the originalinspection of Clinton Corn Products was initiated by an employee complaintpursuant to Section 8(f)(1) of the Act, the Compliance Officer?s activities hadto be confined to the special Section 8(f)(1) inspection. The basic premise ofthis argument is that Section 8(f)(1) serves to limit the Secretary?sinspection activities. This argument was considered and rejected by theCommission in the case of Secretary of Labor v. Aluminum Coil Anodyzing Corp.,OSAHRC Docket No. 829. In that Decision Commissioner Van Namee pointed out thatwhile Section 8(f)(1) imposes a specific duty upon the Complainant to conduct a?special inspection? when certain specific conditions precedent are met,Section 8(f)(1) imposes no limitation upon the Secretary?s broad authorizationto make inspections and investigations as empowered by Section 8(a). ?Accordingto the plain terms of this section, the only limitations on his authority arethat inspections be ?within reasonable limits? and made ?during regular workinghours and at other reasonable times.??That the Compliance Officer was in the vicinity ofRespondent?s worksite as a result of a Section 8(f)(1) employee complaintrelated to another employer is happenstance. Absent a showing that theSecretary has violated the conditions of Section 8(a), Respondent is withoutbasis for objecting to the inspection.The CitationsThe Citations issued subsequent to Mr. Levalds?inspection bore the date they were issued, May 2, 1973, but in describing thealleged violations did not specify the date of the inspection. Respondentcontends that the absence of an inspection or occurrence date on a Citationconstitutes a failure to comply with the provisions of Section 9(a) of the Actwhich requires that ?each Citation shall be in writing and shall describe withparticularity the nature of the violation, including a reference to theprovision of the Act, standard, rule, regulation, or order alleged to have beenviolated.?We agree with Respondent?the Citations herein did notcomply with provisions of the Act?but are constrained to deny relief on thisground. The reasons for both agreeing with Respondent and ruling adversely tohis position warrant amplification.First, the Secretary?s practice of issuing citationswithout specifying an inspection or occurrence date is to be condemned. Twoseparate sections of the Act emphasize the importance Congress placed on thetime interval between inspection and citation. Section 9(c) provides that ?Nocitation may be issued . . . after the expiration of six months following theoccurrence of any violation.? Section 9(c) is a statute of limitations, Secretaryof Labor v. Chicago Bridge and Iron Company, OSAHRC Docket No. 744. Acitation issued in violation of Section 9(c) is clearly illegal, but aRespondent cannot ascertain from the face of the citation whether it has been servedwith a valid instrument under the present OSHA practices.Section 9(a) of the Act directs the Secretary to issuecitations ?with reasonable promptness.? The Commission has construed thissection to apply to the time period for performing the ministerial tasksinvolved in issuing a citation after Complainant has determined that aviolation has occurred. Chicago Bridge and Iron, supra, fixes a comparativelybrief period for this function.An argument might be constructed that it is unnecessaryfor Complainant to specify the inspection date on a citation because theemployer earlier was given notice of and an opportunity to participate in theinspection under the terms of Section 8(e).[15]The difficulty with this reasoning is the decision in another skirmishinvolving the Secretary of Labor v. Chicago Bridge and Iron, OSAHRC Docket No.244, wherein it was ruled that the language of Section 8(e) is directory only.Conceivably an inspection of an employer?s work area may be conducted withouthis knowledge, and much mischief will follow if the Secretary is laterpermitted to issue a citation which does not inform the Respondent of theinspection date.[16]We are persuaded that the Citation in the instant casefailed to comply with the Section 9(a) requirement that ?Each citation . . .shall describe with particularity the nature of the violation,? andRespondent?s proper remedy was a timely motion to vacate. It would appear,however, that under the guidelines enunciated in Secretary of Labor v. ChicagoBridge and Iron, OSAHRC Docket No. 744, issues relating to the validity of thecitation should be raised early in the proceedings, i.e., in the Notice ofContest or in the employer?s Answer. The Respondent herein did not raise theissue until after the close of Complainant?s case at the hearing?long after ithad been informed of the occurrence date by allegations in the Complaint andtestimony of the Compliance Officer. The motion was not timely made and must bedenied.The Complaint and Amendment IssuesAs noted, the Complaint filed June 8, 1973, alleged thesafety violations charged in the Citations occurred April 12, 1973. TheComplaint paragraphs setting forth the violations generally followed the descriptionson the Citations but not in h?cverba. Paragraph IV(a)(1), referenced to Item 1 of the Citation for Other ThanSerious Violation, was more economical in its language than the Citationdescription. Paragraph IV(a)(2), referenced to Item 2 of the Citation for OtherThan Serious Violation, was larger than the Citation description, adding anallegation that four laborers and one carpenter had been exposed to theviolation.Paragraph VII of the Complaint acknowledged that thedescriptive portions of the Citation had been altered slightly and assertedthat the Citation ?are hereby amended to conform to the allegations of theComplaint.?Respondent contends the changes in the Complaintdeprived it of due process and contravened Commission Rule 2200.33(a)(3) whichstates:(3) Where theSecretary in his Complaint seeks to amend his citation or proposed penalty, heshall set forth the reasons for amendment and shall state with particularitythe change sought.\u00a0We do not agree with Respondent that the Complaintviolates Commission Rules of Procedure. We note that Rule 2200.33(a)(2)requires the Secretary to set forth ?with particularity? matters which need notbe stated in the citation:(2) Thecomplaint shall set forth all alleged violations and proposed penalties whichare contested, stating with particularity:?(i) The basisfor jurisdiction;?(ii) The time,location, place and circumstances of each such alleged violation; and?(iii) Theconsiderations upon which the period for abatement and the proposed penalty oneach such alleged violation is based.\u00a0Quite obviously Rule 2200.33(a)(2) requires theSecretary to allege additional facts in the Complaint which do not appear onthe Citation, but such allegations are not an ?amendment? of the Citation withinthe meaning of Rule 2200.33(a)(3). For instance, a fuller description of the?circumstances? of the alleged violation does not constitute an amendment ofthe citation as long as the substance of the charge is not changed. Thus it isproper for the Complaint to set forth the number of employees exposed to anallegedly unsafe condition although this circumstance is not detailed on theCitation. ?Amendment? is employed in Rule 2200.33(a)(3) within the frame of apleading amendment. In this sense, amendment is the correction of an error. Hardinv. Boyd, 5 S. Ct. 771, 773, 113 U.S. 756; Shroyer v. Pittenger, 67N.E. 475, 477, 31 Ind. App 158, citing Anderson, Law Dict.; Black,Law Dict.Whenever the Secretary seeks to correct error in thecitation or proposed penalty, Rule 2200.33(a)(3) applies, and he must set forththe reasons for the amendment and state with particularity the change sought.When, as in the instant case, there is no attempt to correct the citation orproposed penalty, the language employed in Paragraph VII of the Complaint isunnecessary. When the Complaint does seek to correct error appearing on theCitation, such language is futile because it fails to satisfy Rule2200.33(a)(3). (See Secretary of Labor v. Martin Iron Works, Inc.,Docket No. 1690, wherein Judge Cronin condemned similar language in a Complaintwhich sought to make major corrections in a Citation.)In the instant case there was a bona fide attempt tocorrect an error in the Citation later in the proceedings. During theCompliance Officer?s testimony it came to light that he intended to chargeRespondent with a violation of regulation 29 CFR 1926.500(d)(2) but entered1926.500(d)(1) on the penalty assessment sheet. (T. 20) The incorrect referencewas repeated in Item 2 of the Citation for Other Than Serious Violation andParagraph IV(a)(2) of the Complaint. The Secretary thereupon moved to amend theCitation and Complaint.Under the circumstances we feel the motion should bedenied. The customary test for such a proposed amendment is whether theRespondent was surprised or prejudiced in its efforts to prepare its defense,i.e., whether there was adequate notice of the nature of the charge. In allprobability there was little prejudice or surprise herein in view of thedetailed description of the violation of the Citation. Nevertheless it would bepoor practice to permit substitution of an entirely new charge midway in a hearingfor no more cause than the Secretary?s neglect to check a citation reference.We are mindful of the huge volume of inspections conducted by OSHA officialsand the pressures under which their staffs work in order to issue citationswithin the time limits prescribed by the Act. It would be remarkable if asubstantial number of errors were not made in documents prepared under thesecircumstances. But the Secretary?s failure to detect erroneous references incontested citations prior to the hearing is neither remarkable nor excusable.The Citation herein was issued on May 2, 1973, the Complaint was filed June 8,1973 and hearing was held September 5, 1973. Time enough to catch the error,and reason enough to deny the amendment. Item 2 of the Citation for Other ThanSerious Violation and the $65.00 penalty proposed thereon will be vacated.Citation for Serious Violation: The General Duty ClauseThe Citation for Serious Violation, alleging a violationof Section 5(a)(1) of the Act (the ?General Duty Clause?) was related to theconditions portrayed in the photographic exhibit G?4. Mr. Levalds testified heobserved and photographed five of Respondent?s employees standing on some gridwork consisting of pieces of lumber placed on top of the Safway scaffold framesat a height of 19 feet 6 inches. The men were pouring concrete into circularforms or columns. There were numerous openings in the grid work, 30 to 40inches in size, through which a man could fall. (T. 21?23)Levalds? testimony as to the size and location of theopenings appeared adequately confirmed by the photographic exhibit, althoughRespondent?s witness Lord maintained there were no openings large enough for aman to fall through ?where the men was working . . . in my opinion.? (T. 66,74) The undersigned Judge Frankly found Lord?s testimony incredible (T. 80) andwould resolve the factual issues in Complainant?s favor. The evidenceestablished the existence of the conditions described on the Citation, butraised a more difficult legal question, namely, was a citation for violation ofthe General Duty Clause inappropriate because a specific safety regulation wasapplicable to the condition charged.The law is clear that where anyoccupational safety and health standard has been promulgated under the authorityof Section 6 of the Act, which regulates a specific type of conduct, theComplainant must cite all alleged failures to comply with such conduct underthat particular standard rather than the general duty clause. Secretary ofLabor v. Sun Shipbuilding and Drydock Company, OSAHRC Docket No. 161.?At the close of Complainant?s case Respondent moved fordismissal of the General Duty Clause charge on the ground that if there was aviolation, it should have been cited under a specific regulation?either 1926.500(b)(8)or 1910.28(a)(5) or 1910.23(a). And, in its Brief submitted subsequent toreview of the Transcript, Respondent suggested that perhaps 1926.500(b)(1) and1926.500(c)(1) are more appropriate if there is a violation.After careful review of the evidence and the above-citedsafety regulations, the undersigned Judge is persuaded that the Respondentshould have been charged with a serious violation of the safety regulationcodified as 29 CFR 1926.500(b)(1). The standards which appear under Subpart M?Floorand Wall Openings, and Stairways?provide:1926.500Guardrails, handrails and covers.?(a) Generalprovision. This subpart shall apply to temporary or emergency conditions wherethere is danger of employees or materials falling through floor, roof or wallopenings, or from stairways or runways.?(b) Guarding offloor openings and floor holes. (1) Floor openings shall be guarded by astandard railing and toeboards or cover, as specified in paragraph (f) of thissection. In general, the railing shall be provided on all exposed sides, exceptat entrances to stairways.?1926.502.Definitions applicable to this subpart.?(b) ?Flooropening??An opening measuring 12 inches or more in its least dimension in anyfloor, roof, or platform through which persons may fall.?Compliance Officer Levalds testified that the gridstructure constituted a work platform in his opinion but stated that Respondentwas not cited under 1926.500 ?because of some legal decision made previous tothis.? (T. 40?41) If there is any legal impediment to citing Respondent for notcovering or guarding floor openings (as defined in 1926.502(b) under theprovisions of 1926.500(b)(1)) we are not so advised by any authority submittedin Complainant?s Brief. Complainant did point out that 1926.500(b)(8) wasinapplicable because it dealt with ?floor holes??openings measuring less than12 inches?but maintained a determined silence as to 1926.500(b)(1).In complete fairness to Complainant it should be notedthat his discussion of the issue concluded by suggesting a remedial procedureif it be found that some specific standard rather than Section 5(a)(1) wasapplicable to the conditions, namely that Complainant be permitted to amend theComplaint to conform to the evidence and allege violation of the applicablestandard. It is suggested that Secretary of Labor v. Brisk WaterproofingCo., Inc. OSAHRC Docket No. 1046, is authority for such a procedure.We do not agree. Although the Brisk Waterproofingcase parallels the instant proceedings in most major aspects, there is onesignificant difference. The Respondent therein did not deny the substantialallegations of the Citation and the Complaint but defended upon the narrowground that its acts did not constitute ?a recognized hazard.? In the instant caseRespondent denied every allegation relating to the Citation for SeriousViolation and defended most vigorously. Whether Respondent could have erectedadditional defenses had it been cited for a specific violation of 29 CFR1926.500(b)(1) no one can say, but it was neither charged with thatresponsibility nor given that opportunity. Rule 15(b) of the Federal Rules ofProcedure may perhaps sanction amendment on more liberal terms than indicatedin Brisk Waterproofing, but we are not prepared to extend those terms to aproceeding where the Secretary pleaded and tried a case with seemingly studiedignorance of the applicable standard. Complainant?s conditional request forleave to amend and plead a specific Section 5(a)(2) violation will be denied.Citation Item Number 1: 29 CFR 1926.451(a)(13)Compliance Officer Levalds testified that he and Mr.Lord ascended a wooden ladder to reach the top of a circular concrete wall.Inside the wall structure were some Safety tubular welded metal framescaffolds, each 6 feet 6 inches in height. Three scaffold sections wereconnected for a total height of 19 1\/2 feet. Levalds observed two men workingat the bottom of the concrete structure and asked Lord if the scaffolds wereused by the men to gain access to their work area. Lord answered in theaffirmative (T. 10). The men were identified by Lord as his employees (T. 11).Levalds did not actually observe any men climbing ordescending the scaffold frames, but he repeated his testimony that Lordindicated Respondent?s employees use the frames as a means of access to theirwork areas (T. 45?46).In his testimony Lord corroborated the fact that theRespondent?s employees use the scaffold as a means of access to get to thebottom of the tank. (T. 65, 73)Levalds also testified that he observed no other meansof access to the work area and that the configuration of the scaffold framesdid not come close to a ladder requirement in his opinion. The horizontalspacings in the end frames were irregular. The first one measured 27 inches,the second 22, and the third 17 (T. 10). Levalds also stated that studs forcross bracing interfered with climbing action conducted on the horizontalmembers and the least width was only six inches (T. 10).Both Lord and Mr. Larry B. Johnson, Respondent?sPresident, testified they had climbed the Safway scaffolds and believed theywere safe. (T. 68, 85) Johnson stated that he had never had any difficulty nordid he ever see anyone fall or experience any difficulty and that the practicehad been going on for many years (T. 85). However, in cross-examination heconceded that Safway manufactured a ladder for their scaffolds and thatRespondent did not have one present at the jobsite (T. 88).At the close of Complainant?s case Respondent moved fordismissal of the allegations of Citation Item Number 1 on the ground that 29CFR 1926.451(a)(3) was too vague and indefinite to be enforceable, not givingfair notice of the type of access which is forbidden. This motion will bedenied. The regulation is question has been frequently cited during the briefhistory of the Act. On two separate occasions violations of 29 CFR1926.451(a)(13) have been affirmed in cases reviewed by the Commission. See Secretaryof Labor v. Kehm Construction Company, Inc. (OSAHRC Docket Nos. 1209 and1438), and Secretary of Labor v. Brisk Waterproofing Company, Inc.,(OSAHRC Docket No. 1046). The later case is especially interesting since theCommission reversed a decision that Respondent had violated General Duty Clauseand found the Respondent in violation of 29 CFR 1926.451(a)(13). A $600.00penalty was assessed for the violation.In its brief Respondent raises a number of objections tothe language of the regulation, which provides:1926.451Scaffolding.?(a) Generalrequirements. (1) Scaffolds shall be erected in accordance with requirements ofthis section.?(13) An accessladder or equivalent safe access shall be provided.?Among other grounds it is urged that one must resort toother sections of the regulations in order to ascertain the meaning of ?accessladder? and that the phrase ?equivalent safe access? provides no guide for theRespondent to ascertain the proscribed conduct.We are not persuaded that either ?ladder? or?equivalent? are such ambiguous terms that Respondent would not be guided byapplying the ordinary definitions. Webster?s Third New International Dictionary(1965) defines ?ladder? as follows:?1. a. usu.portable structure for use of climbing up or down that consists commonly of twoparallel side pieces of wood, metal, or rope, joined at short intervals by aseries of cross pieces that serve as rest for the feet.??The same dictionary also defines ?equivalent? as ?corresponding orvirtually identical, esp. in effect or function.?Respondent argues that the scaffolding structure itselfconstituted a ?fixed? ladder within the meaning of regulation 29 CFR1926.450(a)(5) and notes the reference to National Standards Institute,A14.3?1956, Safety Code for Fixed Ladders, in that regulation.We note that the Cited ANSI publication contains thefollowing definitions of ?equivalent? and ?ladder?:1.6 Equivalent.The word ?equivalent? in this code shall be interpreted to mean alternativedesigns or features which will provide equal degree of safety.?2.1 Ladder. A ladderis an appliance usually consisting of two side rails joined at regularintervals by cross pieces called steps, runs, or cleats, on which a person maystep in ascending or descending.?The structure used by Respondent?s employees as a meansof access did not have side rails joined at short and regular intervals by itscross pieces. It constituted a climbing hazard, a fact evidently recognized bythe manufacturer who fabricated a specific ladder for this type of scaffolding.A wide range of penalties has been assessed in other cases for violation of thecited regulation, from zero to $600.00. The $40.00 penalty proposed by theComplainant appears appropriate in view of the hazard of a fall from heights upto 19 1\/2 feet and should be affirmed.In affirming the Citation and proposed penalty we aremindful of Respondent?s argument that Chapter X(c)(1) of the ComplianceOperations Manual, a publication promulgated by the Secretary as a guidelinefor implementing the Act, is said to bar Compliance Officers for citingemployers for violation not actually observed. This statement is not accurate.The Compliance Manual section cited makes actual observance a general rulesubject to exceptions. In the instant case employee exposure was admitted, andthe Compliance Officer would have shirked his duty had he elected to ignore theviolation.FINDINGS OF FACT1. The Respondent, Ringland-Johnson, Inc., a corporationwith its principal office at 1523 S. Bluff Blvd., Clinton, Iowa, was at alltimes material hereto engaged in the business of general contracting.2. On April 12, 1973 a number of Respondent?s employeeswere engaged in the construction of three circular concrete bins at a worksiteat 1250 Channel Parkway, Clinton, Iowa. On said date Uldis Sid Levalds, OSHA ComplianceOfficer, conducted an inspection of the premises.3. As a result of the aforesaid inspection Respondentwas issued one Citation for Other Than Serious Violation alleging violations ofthe safety standards codified as 29 CFR 1926.451(a)(13) and 29 CFR1926.500(d)(1) and one Citation for Serious Violation alleging a violation ofSection 5(a)(1) of the Act.4. The evidence with respect to the alleged violationsrevealed:(a) On April 12, 1973 Respondent?s employees were usingvariously spaced horizontal support rungs on the ends of tubular, welded metalscaffold frames as a means of obtaining access to their work areas. The spacingbetween the ground and the first support is 27 inches; between the firstsupport and the second, 22 inches; and between the second support and thethird, 17 inches.?(b) The evidencefailed to establish any violation of safety regulation 29 CFR 1926.500(d)(1),the Compliance Officer testifying that the standard reference appearing on theCitation and the Complaint was inadvertent and incorrect. Complainant moved toamend the Citation and Complaint by substituting a reference to regulation 29CFR 1926.500(d)(2) during the hearing, which Motion was opposed by Respondent.The undersigned Judge took the Motion under advisement.(c) On April 12, 1973 five of Respondent?s employeeswere working on a grid work platform consisting of pieces of lumber laid on topof tubular welded metal scaffold frames at a height of 19 feet 6 inches. Therewere numerous openings in the platform, 30 to 40 inches in size, through whicha man could fall. At the conclusion of Complainant?s case Respondent moved todismiss the Citation for Serious Violation on the ground that a Citation forviolation of Section 5(a)(1) of the Act, the general duty clause, wasinappropriate because a specific safety regulation was applicable to theconditions. The undersigned Judge took the Motion under advisement.CONCLUSIONS OF LAW1. At all times material hereto, the Respondent was anemployer engaged in a business affecting commerce within the meaning of Section3 (5) of the Act. The Occupational Safety and Health Review Commission hasjurisdiction of the parties and the subject matter herein.2. On April 12, 1973 Respondent violated Section 5(a)(2)of the Act by its non-compliance with safety regulation 29 CFR 1926.451(a)(13)as described in Item 1 of the Citation for Other Than Serious Violation. Apenalty of $40.00 is appropriate for said violation.3. On April 12, 1973 Respondent was not in violation ofsafety regulation 29 CFR 1926.500(d)(1) as alleged in Item 2 of the Citationfor Other than Serious Violation. The Motion to Amend Item 2 was not timelymade and should be denied.4. On April 12, 1973 the safety regulation codified as29 CFR 1926.500(b)(1) was applicable to the conditions described in theCitation for Serious Violation. The Motion to Vacate and Dismiss the Citationfor Serious Violation should be granted, and Complainant?s request for leave toamend said Citation should be denied.ORDERBased on the above Findings of Fact and Conclusions ofLaw it is ORDERED that:1. Item 1 of the Citation for Other Than SeriousViolation issued Respondent May 2, 1973 and the penalty proposed thereon arehereby affirmed.2. Item 2 of the Citation for Other Than Serious Violationissued Respondent May 2, 1973 and the penalty proposed thereon are herebyvacated.3. The Citation for Serious Violation issued RespondentMay 2, 1973 alleging a violation of Section 5(a)(1) of the Act, and the penaltyproposed thereon, are hereby vacated.?Alan M. WienmanJudge, OSAHRCDATE: FEB 27, 1974\u00a0[1]As a threshold matter, Respondent raised at the hearing and argues on reviewthat the citations are void since they lacked the particularity required bysection 9(a) of the Act in that they failed to state the date of theinspection. Judge Weinman, although finding that the citations did lack particularity,rejected Respondent?s argument on the basis that it was not timely raised. Wehold that in this case the failure of the Secretary to specify an inspectiondate in the citations did not render the citations fatally defective. We havestated that the purpose of the particularity requirement is to insure thatRespondent is placed on notice regarding the alleged violation and that we canlook at some circumstances surrounding the citation in order to determinewhether notice has been given. B. W. Harrison Lumber Co., Inc., No. 2200(April 14, 1976). Here, Respondent had notice of the date of the subjectinspection since its representative accompanied the compliance officer on theinspection and the evidence does not indicate that more than one inspectionoccurred during the same period of time. Further, the complaint included thedate of inspection, thereby formally putting Respondent on notice of the dateof inspection, prior to the hearing.\u00a0[2]29 U.S.C 654(a)(1).\u00a0[3]29 U.S.C. 654(a)(2).[4]In its posthearing brief, the Secretary, while reasserting that section 5(a)(1)of the Act applies to the situation, moved in the alternative for leave toamend its citation and complaint to allege a violation of section 5(a)(2) ofthe Act if a specific standard were found to be applicable. Judge Weinmandenied the motion based on a lack of consent to the amendment by theRespondent. Because we find that the cited provision of the Act was applicable,we need not reach the issue of whether leave to amend should have been granted.[5]Brisk Waterproofing Company, Inc., 3 OSAHRC 1132, BNA 1 OSHC 1263, CCHOSHD para. 16,345 (1973).\u00a0[6]On review Respondent also argues that 29 C.F.R. 1926.500(b)(8),1910.28(a)(8)(1) and 1910.28(a)(8)(2) apply to the grid or platform involvedhere. As discussed we do not find Subpart M of Part 1926 applicable. The1910.28(a) standards are general industry standards for scaffolds, and what wehave said above concerning tight planking for tubular welded scaffolds used inthe construction industry also applies to the general industry standards. See29 C.F.R. 1910.28(d)(10) and 28(a)(9). In any event 28(a)(8) is clearlyinapplicable since it deals with the stress grade of lumber used inscaffolding.\u00a0[7]See note 5 infra.[8]The standard at 1926.500(d)(1) requires in pertinent part that ?everyopen-sided floor or platform 6 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing, or the equivalent. . .? Thestandard at 1926.500(d)(2) requires in pertinent part that ?runways shall beguarded by a standard railing, or the equivalent. . . ?[9]Although the job superintendent contradicted this statement at the hearing bytestifying that he did not recall any employee using the runway, Judge Weinmanquestioned the superintendent?s testimony at the hearing as generallyincredible. We will not disturb a Judge?s credibility determination. NortheastStevedoring Co., Inc., 13 OSAHRC 105, BNA 2 OSHC 1332, CCH OSHD para.19,001 (1974).\u00a0[10]The standard at 1926.451(a)(13) requires that, for scaffolds, ?an access ladderor equivalent safe access shall be provided.?\u00a0[11]On review, Respondent also reasserts its argument that the cited standard isunenforceably vague because of the lack of guidelines regarding therequirements for a ladder or its equivalent. We reject this argument for thereasons assigned by Judge Weinman: that, considering common and industryunderstanding, the words ?ladder? and ?equivalent? are not ambiguous and fairlyapprise employers of the conduct required of them.[12]Judge Wienman decided this case in accordance with the mandate of 29 U.S.C. ?659(c) which incorporates by reference the Administrative Procedure Act (APA)provisions relating to administrative adjudications, 5 U.S.C. ?? 554?557. TheAPA specifies that, after a hearing has been held, the presiding hearingofficer ?shall initially decide the case . . . that decision then becomes the decisionof the agency without further proceedings unless there is . . . review onmotion of the agency within time provided by rule,? 5 U.S.C. ? 557, emphasissupplied. Messrs. Barnako and Cleary, however, take a side-shot at the Judge?sdecision by referring to it in a demeaning and wholly out-of-place manner. Theyrefer, for example, to ?Judge Wienman?s recommendation? and, at other places,use such phrases as ?Judge Wienman would vacate? and ?he would affirm.? Neveronce do they accord the Judge the courtesy of labelling his disposition by itsproper legal name: decision. I completely disassociate myself from theirerroneous and patronizing references to Judge Wienman?s decision and deplorethe inclusion in decisions of this Commission of such shabby treatment of aJudge who?as Messrs. Barnako and Cleary well know?cannot respond.\u00a0[13]While I agree with the Judge?s vacation of the citation for serious violation,I do not join in his determination that respondent should have been cited underthe occupational safety and health standard set forth at 29 C.F.R. ?1926.500(b)(1) in lieu of 29 U.S.C. ? 654(a)(1), the so-called general dutyclause.[14]Furthermore, I do not agree with my colleagues? views regarding the amendmentof citations. For an expression of my view on this matter, see Secretary v.Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissentingopinion).[15](e) Subject to regulations issued by the Secretary, a representative of theemployer and a representative authority by his employees shall be given anopportunity to accompany the Secretary or his authorized representative duringthe physical inspection of any workplace under subsection (a) for the purposeof aiding such inspection. Where there is no authorized employeerepresentative, the Secretary or his authorized representative shall consultwith a reasonable number of employees concerning matters of health and safetyin the workplace.\u00a0[16]How does the employer ascertain the conditions existing at a time unknown inorder to determine whether to contest the citation? Worse yet, assume twoseparate inspections of a jobsite, one of which was conducted without an employer?sknowledge and resulted in the issuance of a citation. The employer would bepositively misled as to the operative facts. This sort of speculation is notentirely fanciful in cases of large construction projects involving numeroussubcontractors with overlapping work areas.”