“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14516 TRUAX & HOVEY DRYWALL CORP., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June6, 1978DECISIONBefore CLEARY, Chairman: BARNAKO, Commissioner.BARNAKO, Commissioner:??????????? TheSecretary of Labor cited Respondent (Truax) for allegedly violating three OSHAconstruction safety standards dealing with scaffolds. The citation alleged asone item violations of 29 C.F.R. 1926.451(a)(13) (improper access),1926.451(a)(14) (planks extending too far over end supports), and1926.451(d)(10) (inadequate perimeter protection).[1] Administrative Law JudgeSeymour Fier found that Truax violated the standards as alleged, and assessed apenalty of $1000. We reduce the penalty to $650, but otherwise affirm his decision.??????????? Truaxwas a subcontractor on a construction site, responsible for the installation ofdrywall. This case arose following the accidental electrocution of one ofTruax?s employees.[2]At the time of the accident, the employee was installing drywall from a tubularwelded frame scaffold. The platform of the scaffold on which the employees wereworking[3] was thirteen feet high andwas located on a mezzanine approximately seven feet above the building?s firstfloor.??????????? Thescaffold stood in a corner of the mezzanine. The south side abutted a concreteblock wall, and the east side was several inches from the wall on which theemployees were erecting drywall. The framework of the scaffolding served asguardrails for the east and west sides. At the time of the accident, however,there was no guardrail on the north side, which was adjacent to the edge of themezzanine. When the scaffold was erected, it had been equipped with a guardrailon the north side, but the employees working on the scaffold had removed thisguardrail in order to ?lean out the side? while installing the drywall. Thescaffold was not equipped with any toeboards.??????????? Therewas no stairway leading from the floor to the mezzanine; the employees reachedthe mezzanine by climbing a stepladder. They then obtained access to theplatform by climbing the framework of the scaffolding.??????????? Onthe day following the accident an OSHA compliance officer measured the plankson the scaffold and found that they extended over their end supports by 14 to24 inches. One of the employees who had been working on the scaffold, WilliamTruax, Jr., testified that the planks were approximately 1 ? to 2 feet longerthan the scaffold supports, and that the configuration of the scaffold plankswhen the compliance officer measured them was approximately the same as whenthe scaffolding was being used the day before. There was also testimony byTruax employees and by a witness who helped give emergency assistance after theaccident that the planks were rearranged to facilitate removal of theelectrocuted worker.??????????? JudgeFier found that Truax violated all three of the cited scaffolding standards.Truax takes exception to his findings. It contends that it did provide anaccess ladder to the scaffold platform because the employees, after ascendingthe step ladder to the mezzanine, could then pull the stepladder up to thatlevel and use it to climb to the platform. As to the planks, Truax challengesthe relevance of the measurements made by the compliance officer because atleast some of the planks had been moved between the time the scaffold was usedand the time the measurements were made. Truax also contends that, for avariety of reasons, the testimony of Truax, Jr. concerning the planks isunreliable and should be discounted. Regarding the guardrails and toeboards,Truax concedes it failed to comply with the standard but argues that, becauseof the short time the scaffold was in use, and particularly because thescaffold was used for only a few minutes without a guardrail on the side adjacentto the edge of the mezzanine, the violations were ?so relatively insignificantthat they could be classified as excusable.???????????? Wereject these arguments. It is true, as Truax points out, that 1926.451(a)(13)requires only that a ladder be provided. That standard, however, must be readin conjunction with 1926.450(a)(1), which states that ?ladders described inthis shall be used to give safe access to all elevations.? (emphasis added).Thus, a requirement that ladders be used is implicit in1926.451(a)(13).[4] Ray Boyd Plaster &Tile, Inc., No. 76-814 ($03R 1978). Since the employees did not use aladder, and climbing the framework of the scaffold was not equivalent safeaccess,[5] we conclude that Truaxviolated 1926.451(a)(13).??????????? Withrespect to the question of how far the scaffold planks extended over theframework, the compliance officer?s measurements alone are not conclusivebecause some of the planks were moved between the time the scaffold was usedand the time the measurements were made. Truax, Jr., however, testified thatthe planks were in approximately the same position when the compliance officerconducted the inspection as when the scaffold was in use, the Judgespecifically credited his testimony, and Truax offers no persuasive reason whywe should, in this case, depart from our general policy of accepting a trialjudge?s credibility determination. See, e.g. CTM, Inc., 77 OSAHRC136\/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1976).Moreover, we note that the Judge?s finding is supported by photographs takenduring the inspection which show that two planks running east-west had aconsiderable overhang on the east side and could not have been in asignificantly different position when the scaffold was in use because theyalmost abutted the wall on the west side of the scaffold. Considering all theevidence of record, we conclude that Truax violated 1926.451(a)(14).??????????? Regardingthe alleged lack of adequate perimeter protection, it is undisputed that for atleast a short period of time, the scaffold was not equipped with any guardrailon the north side, and the scaffold was not equipped with toeboards during itsentire period of use. Accordingly, the scaffold did not comply with thestandard, and Truax does not argue otherwise.[6] Instead, Truax assertsthat the violation should be excused because of its minor nature.??????????? TheCommission has found some violations of standards to be so trifling that apenalty should not be assessed and abatement not be required. See, e.g. NationalRolling Mills, Inc., 76 OSAHRC 121\/D7, 4 BNA OSHC 1719, 1976-77 CCH OSHDpara. 21,114 (No. 7987, 1976); Rust Engineering Co., supra n. 4. In sucha case, the violation is said to be de minimis. In this case, however, we donot regard the hazard resulting from the lack of guardrails and toeboards onthe scaffold as trifling. It was possible for an employee to fall 20 feet to aconcrete floor as a result of the complete absence of perimeter guarding on thenorth side of the scaffold. Furthermore, even though that side was completelyunguarded for only a short time, at least one employee leaned over theunguarded side and could well have fallen. The lack of toeboards existed duringthe entire time the scaffold was in use and exposed the employees to thepossibility of being struck by falling material while climbing the framework ofthe scaffold. Accordingly, we reject Truax?s argument that the violation wasinsignificant or should be excused because of its brevity.??????????? Wealso conclude that the violation is properly classified as serious. Again, inarguing to the contrary, Truax stresses the relatively brief duration of theguardrail violation. It is, however, well-settled that a violation is seriousif the result of an accident would likely be death or serious harm, and that theprobability an accident will occur is irrelevant.[7] Here, any of the threeviolations could have led to an employee falling up to 20 feet to a concretefloor. Such a fall would probably have caused death or serious harm, and theviolation is therefore serious regardless of the duration of the violativeconditions. See Texaco, Inc., 77 OSAHRC 182\/D8, 5 BNA OSHC 1962, 1977-78CCH OSHD para. 22,246 (No. 13137, 1977).??????????? Truaxalso contends that the Secretary acted unconstitutionally by selectively andarbitrarily inspecting its worksite while failing to cite other contractors andsubcontractors who had employees on the same job. This contention is based onthe fact that the Secretary chose to investigate the circumstances of the fatalaccident rather than conduct a general inspection of the entire worksite. Weneed only note that such a choice is well within the Secretary?s enforcementdiscretion, and we therefore reject Truax?s argument that it was improper. See FlemingFoods of Nebraska, Inc., 77 OSAHRC 196\/C12, 6 BNA OSHC 1233, 1977-78 CCHOSHD para. $03R (No. 14484, 1977). Similarly, we conclude that the Judge didnot err in refusing to reopen the record to pursue the question of whether theSecretary had cited similar scaffolding violations as nonserious in the past. FlemingFoods of Nebraska, supra.??????????? Weagree with Truax?s argument, however, that the Judge improperly based hispenalty assessment in part on the fact that a fatality had occurred. Theaccident resulted from causes unconnected with the violations here at issue.See note, 2, supra. Having considered the gravity of the violations togetherwith Truax?s size, good faith, and absence of any prior history of violations,we conclude that a penalty of $650 is appropriate.??????????? Accordingly,the Judge?s decision is modified to assess a penalty of $650 and as so modifiedis affirmed.??????????? FOR THE COMMISSION:?RayH. Darling, Jr.ExecutiveSecretaryBY:Gloria W. WhiteActingExecutive SecretaryDATED:JUN 6, 1978\u00a0??????????? CommissionerCOTTINE took no part in the consideration or decision of this case for thereasons set forth in his separate opinion.SEPARATE OPINION??????????? Asa new member of the Commission, I must resolve the issue of my participation inpending cases. It is also necessary for me to set out the principles guiding mydecision on this important issue.??????????? Inthis case, Chairman Cleary and Commissioner Barnako reached a unanimousdecision on the merits before I received my commission on May 1, 1978. Adecision was already in preparation when I assumed office. I have concludedthat the wisest exercise of discretion is to decline to participate in thiscase even though a new Commission member has authority to participate inpending cases. It should be emphasized that by declining to participate I expressno opinion on the procedural or substantive issues in this case or on theappropriateness of the accompanying order.Discretion of Commission Members??????????? Asa matter of law, it is not necessary for all Commission members to participatefor an agency to take official action. In Drath v. FTC, 239 F.2d 452(D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal TradeCommission issued a cease-and-desist order with only three of its five membersparticipating. The Court of Appeals rejected petitioner?s contention that theFTC can act in its adjudicatory capacity only when all members participate,except when there is a vacancy. The court ruled that official action can betaken by the majority of the requisite quorum. Also Frisher & Co. v.Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v.Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f)of the Occupational Safety and Health Act, 29 U.S.C. ? 661(e), provides:Forthe purposes of carrying out its functions under this chapter, two members ofthe Commission shall constitute a quorum and official action can be taken onlyon the affirmative vote of at least two members.???????????? Thus,the unanimous decision already reached in this case satisfies the quorum andofficial action requirements of the Act and my participation is not necessaryfor the Commission to carry out its adjudicatory functions in this particularcase.??????????? However,it is also settled that a new member of an administrative agency mayparticipate in pending cases. For example, a new member of the CivilAeronautics Board who had not participated in previous proceedings was entitledto vote and break an existing tie where he had familiarized himself with therecord. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing UnitedAir Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[8]. In United thecourt indicated that, where a member voting with the majority without hearingoral argument ?had the record before him and the benefit of briefs?, there wasno abuse of discretion in his participation, 281 F.2d at 56. There are numerousother cases supporting this holding. The clearest statement of law is set forthin Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):Thedecisions of numerous courts and administrative agencies establish that, evenwithout agreement of the parties, a member of an administrative agency who didnot hear oral argument may nevertheless participate in the decision where hehas the benefit of the record before him. [footnotes omitted] \u00a0348 F.2d at 802.[9] See Au Yi Lau v. U.S.Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir.1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir.1976). Thus, a new member possesses the necessary authority to participate inall cases pending before the Commission on assuming office.??????????? Thougha new member may participate in all pending cases, particularly those involvingan impasse, the decision remains a matter of discretion since adjudicatorydecision may be upheld on a majority of a quorum. In FTC v. Flotill prod.,389 U.S. 179 (1967) rev?g 358 F.2d 224 (9th Cir. 1966), an FTC memberappointed to fill one of two vacancies, declined to participate because he hadnot heard the oral argument. Thus, three of the possible four Commissionersactually participated in the decision. As a result, the FTC issued acease-and-desist order based on the affirmative vote of only two members.Despite its obvious impact on the number of members constituting a majority,the Court did not review the exercise of discretion by the new member. Instead,the Court accepted the abstention at face value and upheld the action of thetwo members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5thCir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965).In addition, administrative decisions involving two or more abstentions havebeen upheld by reviewing courts without question or comment on the grounds forthese abstentions. All that was necessary to sustain the agency decision was amajority of the required quorum. E.G., Greater Boston Television Corp. v.FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S.923 (1971).Decision Not to Participate??????????? Idecline to participate in this case because a majority of the Commission hasreached agreement on the merits and my vote would have no effect on theoutcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako havereached a unanimous decision, my participation would delay the issuance ofdecisions and conflict with the goal of a prompt and efficient decision-makingprocess. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir.1975), citing 5 U.S.C. ? 555(b). Since abatement is stayed until the Commissionenters a final order, 29 U.S.C. ? 659(b), additional deliberations would delaythe control of hazardous working conditions in any case where the Commissionhas determined that a violation of the Act exists. That result would beinconsistent with the statutory purpose to assure so far as possible safe andhealthful working conditions for every working man and woman. 29 U.S.C. ?651(b).??????????? Iwill, however, participate fully in all cases in which previous Commissiondeliberations have resulted in a one-to-one deadlock. Decisions by an equallydivided Commission are without precedential value, e.g., Life SciencesProducts Co., 77 OSAHRC 200\/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCHOSHD ?22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir.Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission?sadministrative law judges. Moreover, these decisions also promote needless litigationin the U.S. Courts of Appeals to decide issues which should initially bedetermined by the Commission, because its members have specialized training,education, and experience in occupational safety and health. 29 U.S.C. ?661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; KeystoneRoofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution ofpending issues also promotes a more uniform application and development ofoccupational safety and health law. After reading the record, I willparticipate in the consideration and decision of these cases.Conclusion??????????? Mydecision not to participate in pending cases which have reached a unanimousdecision by my colleagues, but to participate in those cases with unresolvedissues, promotes the prompt adjudication of cases. It also assures the partiesand the public of the full benefit of Commission review. Both of these resultsare essential in deciding cases affecting the lives, health and safety ofAmerican workers, the operation of American business, and the effectiveadjudication of cases by the administrative law judges.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 14516& 14721 (CONSOLIDATED) TRUAX & HOVEY DRYWALL CORP., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 FINAL ORDER DATE: April 21, 1976Appearances:Francis V. LaRuffa, Regional SolicitorUnited States Department of Labor1515 Broadway, Room 3555New York, New York 10036Attorney for complainant by BarnettSilverstein, Esq.\u00a0Grasso, Rivizzigno & Woronov, Esps.647 South Warren StreetSyracuse, New York 13202Attorney for respondent by Howard J.Waronov, Esq.\u00a0Welch, Welch & Carr, Esqs.Camillus Professional Building5100 West Genesee Street, Box 175Syracuse, New York 13209Attorney for respondent by AnthonyAdorante, Esq.\u00a0DECISION AND ORDERFier, Judge:PRELIMINARY STATEMENT??????????? Thisis a proceeding pursuant to section 659 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. ? 651 et seq., hereinafter called the Act), wherein therespondents contest the citations and penalties for one serious violationagainst respondent Pearson Electric Company, Inc. (hereafter referred to asPearson), and two serious violations against Truax & Hovey Drywall Corp.(hereafter referred to as Truax). The citation against Pearson dated August 5,1975, was based on an inspection conducted from July 18th through August 4,1975. The citations against Truax, dated August 6, 1975, were based on aninspection conducted from July 18, 1975 through August 1, 1975. The citationsand proposed penalties were issued pursuant to sections 9(a) and 10(a) of theAct.??????????? Pursuantto section 10(c) of the Act, 29 U.S.C. ? 659(c) respondent Pearson through aletter dated August 27, 1975, noted its timely contest to the citation andproposed penalty. Truax through its attorney, on August 14, 1975, noted itstimely contest to the citations and penalties.??????????? OnNovember 11, 1975 the Secretary made a motion to have the above casesconsolidated for trial on the grounds that both cases have common questions oflaw and facts and the witnesses are the same for both cases. Accordingly, onNovember 18, 1975 an order was issued consolidating both cases for trial.??????????? Thecitation for alleged serious violation against Pearson sets forth thefollowing:Citations No. 1 Item No. Standard Description 1 NEC-NFPA 70?1971 Article 320?5(a) p. 70?124 as adopted by 29 CFR 1926.400(a) p. 22831, FR# 122, dated June 24, 1974 (A) Temporary 277 and 115 Volt A.C. conductors originating in electrical power distribution panel (located approximately 21 feet from north east corner of welding area) which ran along mezzanine and along west wall of welding area were not supported on noncombustible, nonabsorptive insulating material. The temporary conductors are being supported by pieces of electrical wire throughout their entire length. \u00a0 \u00a0 NEC-NFPA 70?1971 Article 320?9 p. 70?125 as adopted by 29 CFR 1926.400(a) p. 22831 FR# 122, dated June 24, 1974 \u00a0 (b) Temporary 277 and 115 Volt A.C. open conductors are not separated from contact with walls or partitions through which they pass by tubes or bushings of noncombustible, nonabsorptive insulating material. Conductors pass through wall on east side of power distribution room, along floor of mezzanine, and through concrete block wall, west of weld area. \u00a0 \u00a0 NEC-NFPA 70?1971 Article 320?10 p. 70?125 as adopted by 29 CFR 1926.400(a) p. 22831 FR# 122, dated June 24, 1974 \u00a0 (c) Temporary 277 and 115 Volt A.C. open conductors, running along floor of mezzanine and west wall of weld area, are not separated at least 2 inches from metallic conduit, or other conducting material (metal ceiling grid supports, metal scaffold frame, metal conduit) or from each other. ? \u00a0??????????? Theabove combined alleged violations constitute one serious violation, in thatthey exposed employees to accidental electric shock which could result in deathor serious physical harm.??????????? Apenalty of $600.00 was proposed.??????????? Standardas promulgated:29 CFR ? 1926.400 General requirements.(a) All electrical work, installation. andwire capacities shall be in accordance with the pertinent provisions of theNational Electrical Code, NFPA 70?1971; ANSI CI?1971 (Rev. of C1?1968), unlessotherwise provided by regulations of this part.\u00a0NEC-NFPA 70?1971:Article?320?5. Supports.(a) Conductors shall not be in contactwith any object other than their insulating supports. They shall be rigidlysupported on noncombustible, nonabsorptive insulating material as follows:(1) Under ordinary circumstances, supportsfor wiring over flat surfaces shall be not more than 4?1\/2 feet apart. Wherethe conductors are likely to be disturbed, the distance between supports shallbe shortened sufficiently to provide adequate support for conductors;(2) Conductors shall be supported within 6inches of a tap;(3) Conductors shall not be dead ended ata rosette, lampholder, or receptacle unless the last support is within 12inches of the device.\u00a0Article?320?9. Passing Through Walls andFloors. Open conductors shall be separated from contact with walls, floors,timbers or partitions through which they pass by tubes or bushings ofnoncombustible, nonabsorbative insulating material. Where the bushing isshorter than the hole, a waterproof sleeve of noninductive material shall beinserted in the hole and an insulating bushing slipped into the sleeve ateither end in such a manner as to keep the conductors absolutely out of contactwith the sleeve. Each conductor must be carried through a separate tube orsleeve.?Article?320?10. Separation from MetalWork. Open conductors shall be separated at least 2 inches from metallicconduit, piping, or other conducting material, and from any exposed lighting,power or signal conductor, or shall be separated therefrom by a continuous andfirmly fixed nonconductor additional to the insulation of the conductor. Whereany insulating tube is used, it shall be secured at the ends. Deviation fromthis requirement may, when necessary, be allowed by the authority enforcingthis Code.???????????? CitationNo. 1 against respondent Truax is identical with the above citation againstPearson. The penalty proposed against Truax for the above is $650.00.??????????? CitationNo. 2 against Truax for alleged serious violation sets forth the following: Item No. Standard Alleged violation 1 29 CFR 1926.451(a)(13), (14), (d)(10) (A) Access ladder or equivalent safe access was not provided to the platforms of the scaffold located on the mezzanine approximately 10 feet from northeast corner of weld area. ? (B) Planks of the scaffold (located on the mezzanine approximately 10 feet from Northeast corner of weld area) extend over their end supports more than 12 inches. ? (C) Guardrails and toe boards (or equivalent) are not installed at all open sides and ends of scaffold more than 10 feet above the floor. Scaffold located on the mezzanine approximately 10 feet from the northeast corner of weld area. \u00a0 \u00a0The above combined alleged violations constitute oneserious violation, in that they exposed employees to falls and falling objectsthat could result in death or serious physical harm.??????????? Apenalty of $650.00 was proposed.??????????? Standardas promulgated:29 CFR ? 1926.451(a) Scaffolding.(13) An access ladder or equivalentsafe access shall be provided.?(14) Scaffold planks shall extendover their end supports not less than 6 inches nor more than 12 inches.(d)(10) Tubular welded framescaffold guardrails made of lumber, not less than 2 x 4 inches (or othermaterial providing equivalent protection), and approximately 42 inches high,with a midrail of 1 x 6 inch lumber (or other material providing equivalentprotection), and toeboards, shall be installed at all open sides and ends onall scaffolds more than 10 feet above the ground or floor. Toeboards shall be aminimum of 4 inches in height. Wire mesh shall be installed in accordance withparagraph (a)(6) of this section.?29 CFR ? 1926.451(a)(6)Where persons are required to workor pass under the scaffold, scaffolds shall be provided with a screen betweenthe toeboard and the guardrail, extending along the entire opening, consistingof No. 18 gauge U.S. Standard wire 1\/2 inch mesh, or the equivalent.?ISSUES??????????? Thefollowing issues are pertinent to a disposition of this case.??????????? 1.Did either or both respondents violate section 5(a)(2) of the Act by failing tocomply with the standards published at 29 CFR ? 1926.400(a); NEC-NFPA 70?1971Article 320?5(a), 320?9, 320?10???????????? 2.Did the respondent Truax violate section 5(a)(2) of the Act by failing tocomply with the standards published at 29 CFR ? 1926.451(a)(13), 29 CFR ?1926.451(a)(14) and 29 CFR ?\u00a01926.451(d)(10)???????????? 3.What penalty, if any, should be assessed for any violations of the Act?STATEMENT OF THE EVIDENCE??????????? Therespondent Pearson, is a New York corporation with approximately 15 employees.Last year it had a net profit of $17,000 (Tr. 223)[???]. It is considered to bea medium sized business for its kind. The respondent Truax is also a New Yorkcorporation of medium size. It employs approximately 75 to 100 employees.??????????? Theinspection by the OSHA compliance officers (hereafter referred to as C.O.) wasoccasioned as a result of a fatal accident of an employee. The deceasedemployee of Truax was Grover Sweeting who was electrocuted while installingplaster board on July 17, 1975. At the time of the accident he was working on aplatform 18 to 20 feet above the floor (stipulation paragraph 8). WilliamTruax, Jr. testified that he and Sweeting were installing dry walls whenSweeting, on descending from a platform, stepped on some wires and shorted outthe power (Tr.39). The witness then stated that the electricians were told ofthe short circuited wires (Tr. 40). Upon informing the job superintendent,Truax and Sweeting took their afternoon coffee break (Tr. 40). Upon returningfrom the break, the job superintendent and a Pearson employee advised theworkers that the broken wires were fixed and cautioned them to be carefulbecause the wires were of a high voltage (Tr. 40). Shortly thereafter, whileusing a Black & Decker drywall screwdriver, Truax employee, Grover Sweetingwas electrocuted as he was working on the elevated scaffold platform.??????????? As aresult of this, the United States Department of Labor was duly notified and aninvestigation and inspection of the accident scene followed. The abovecitations were subsequently issued to the respondents. The testimony concerningthe electrical violations, issued to both respondents revealed that loose wirescarrying electricity were in close proximity of the subject scaffold (Tr. 60).The wires were lying loose on the floor and were observed being ?hung there bynails? (Tr. 77, 82, 144). Testimony also indicated that the shorted wire wasobserved by the Truax foreman who stated, ?I remember seeing the wire that hadshorted hanging on a nail? (Tr. 136). The wire in fact was wrapped around anail. The C.O. testified that on his inspection he saw that the light fixturein exhibit C?21 was not adequately suspended (Tr. 156). The C.O. also observedthat the 277 volt line and the 115 volt line were hung together, not adequatelyseparated, and connected to the electrical conductors and not the support (Exh.C?21; Tr. 156). In addition, the wires were observed in contact with grillworkand temporary grille structures, steel supports on the ceiling and in contactwith conduit (Tr. 152, Exhs. C?20, 21, 34, 42). The wires were also noted to becrossing over conduit (Exh. C?37). No tubing or other insulating material wasprovided for the wires to pass through walls or partitions (T. 111, Exh. C?31,43). The evidence also shows the two wires were tied together with a piece ofwire to a conduit and dropping down in contact with the grillwork (Exh. C?34,Tr. 158?159).??????????? Theevidence concerning the access to the platform by means of a ladder hasdisputed testimony. The C.O. at the time of his inspection, the day after theaccident, recommended that a citation be issued to Truax because the respondentdid not provide an access ladder or equivalent safe access to the platform. Therespondent?s employee, who was working on the platform, testified that he atfirst had a ladder to get up to the platform but did not use it. He testifiedthat,\u00a0A. There was two sections of scaffolding,I think and there was a half section on top that we climbed up. We went up bythe stepladder, crossed over the wall and got onto the scaffold and went up.?Q. And how did you go up the scaffold??A. Up the sides.?Q. Did you use a ladder??A. No, sir.?Q. No ladder. Okay. Then what happened?You had a break and went back to work? (Tr. 42).?On cross examination the same witnesstestified:Q. ?You used a ladder to get up to thescaffold after your lunch break?your coffee break, I mean??A. We used a ladder to get up to thecement block wall. (Tr. 85)???????????? ThePearson foreman testified that when he went to make the electrical repairsduring the coffee break, he obtained access to the mezzanine by use of a ladder?On the floor below the scaffold.? (Tr. 110). The evidence shows a ladderlocated at the side of the platform in exhibit photographs (Exhs. C?19, C?21)taken the day after the accident. The respondent Truax? employee furthertestified that a ladder device capable of reaching the top platform of thescaffold was not at the scaffold when the platform was first used. The crankladder was brought over only five or ten minutes before the accident (Tr. 62).??????????? Thematter of the planks of the scaffold is also in dispute. The C.O. measured theplanks and found that there was an overhang of the platform of 14 to 24 inches(Tr. 155). Respondent?s employee testified that the planks used on the scaffoldare usually ?approximately a foot and a half to two feet, usually longer, maybea foot longer than the scaffold itself so that they hang out a little on eachend? (Tr. 45). The respondent asserts that at the time medical assistance wasbeing administered to the employee on the scaffold, planks were rearranged andexchanged to facilitate removal of the worker (Tr. 204, 219).??????????? TheC.O. at the time of inspection, also cited the respondent for failure to haveguardrails and toeboards on all open sides of the scaffold. He testified,Q. ?Did you observe such toeboards andguardrails or midrails on the top platform of the scaffold??A. There were none there and I wasinformed by Mr. Truax that there were none there at the time of the accident.?Q. How about the mid or lower platform ofthe scaffold??A. Same thing.? (Tr. 156)???????????? Therespondent Truax? employee testified in substantial agreement that there was notoeboard (Tr. 49). He also stated that the guardrail on one side was removed topermit him to work (Tr. 52). There was also testimony from the First Aidwitness that when he was on the platform assisting the injured employee, therewas nothing directly behind him that he recalls (Tr. 127, 130).OPINION??????????? TheSecretary has cited the above respondents, Pearson and Truax, for identicalviolations of the standard 29 CFR ? 1926.400(a) specifically based on theNational Electrical Code of 1971. The respondent Truax employee upon discoveringthe break in the electrical wires notified the respondent Pearson and theSuperintendent on the job of the defect. At this point it is apparent thatTruax relied upon Pearson to provide a safe work area for its employees.Although Pearson states that the Truax employees were later told to be carefuland report any other electrical problems, this could not serve to relievePearson from complying with the standards. The evidence clearly shows that therespondent Pearson failed to comply with the standard NEC-NFPA 70?1971 Article320?5(a) as adapted by 29 CFR ? 1926.400(a). The photographs and testimony aspreviously mentioned support the observation of the C.O who recommended theissuance of the citation. The electrical lines were shown to be supported bypieces of electrical wire in violation of the standard.??????????? Thetemporary 277 and 115 Volt open conductors were similarly in violation of thestandard by failure to have them separated from contact with the walls throughwhich they passed. This was not only apparent from the testimony but also fromthe photographs in evidence.??????????? Theopen conductors are also observed in the photographs to be in contact withmetallic conduit, metal frames, and were not separated from each other. Thetestimony of the C.O. as to his observations at the time of inspection showsthat the practice of the wiring violations was not restricted to a singularcontact of the wires. It is significant that after the first incident of thewires shorting the lights, the respondent Pearson?s employees failed to, atthat time, provide the respondent Truax employees with a safe place for theworkers to perform their trades. The respondent Pearson asserts that itsforeman together with the general superintendent, warned the Truax employees ofthe dangers of electricity. The warning was ?I told them that when they wereworking in and around wires, if they found any that didn?t look safe, to notifymyself or one of the Pearson electric people on the site and we would have itrepaired? (Tr. 199). It is obvious from the foregoing that an open high voltageline in contact with another metallic surface gives little or no warning to theperson who touches it until it often is too late. It is reasonable to assumethat a worker who enters a construction area should be able to ply his trade ina safe environment free from hidden dangers.??????????? Theevidence is overwhelming that the respondent Pearson failed to comply with eachof the above standards for which it was cited. The respondent Truax on theother hand, did notify the Superintendent of the incident and permitted itsemployees to return to work after the coffee break on the assumption that itwas now safe to do so. The talk given by the Superintendent and the Pearsonforeman can easily be construed as an assurance by them that it was safe forthe Truax employees to return to the work area (Tr. 146). In addition, thestatement of Pearson that it would correct any obvious hazards if notifiedcannot relieve Pearson and shift responsibility for compliance over to Truax.Under the circumstances and particular facts of this case, the citation againstTruax for violation of the National Electrical Code must be vacated.??????????? Therespondent Pearson raises the argument that the Secretary has applied the wrongstandard of the National Electric Code. It states that the proper standardshould be Article 305 instead of Article 320 of the National Electric Code. TheReview Commission adapted the findings of Judge Goldstein in a similarsituation where the same defense was raised. The decision held;?It was undisputed that open wiring was incontact with equipment and with duct-work at the employer?s worksite, contraryto Article 320.5 of the National Electric Code. The employer argued, however,that Article 320.5 of the Code was inapplicable because the wiring wasinstalled in a building under construction and that the applicable provisionwas Article 305 entitled ?Temporary Wiring?.???????????? Nothingin Article 305 specifically modified the requirements of Article 320.5 forpermanent wiring to permit the type of wiring utilized by the employer, andunless specifically modified, all the requirements of the Code for permanentwiring apply to temporary installations.? Secretary of Labor v. AmelcoElectric. 4 OSAHRC 827 (1973) Docket #2462.???????????? Seealso Secretary of Labor v. Bertke Electric Co., Inc., 18 OSAHRC 840(1975) Docket No. 3409. In this case the Review Commission not only rejectedthe respondent?s theory as to temporary wiring but saw fit to raise theproposed penalty because of the hazard.??????????? Anotherargument raised by the respondent Pearson is that the 1975 National ElectricCode has a revised interpretation as against the 1971 National Electric Code.This argument also must be rejected. See Secretary of Labor v. BethlehemSteel Corp. ?? OSAHRC ?? (July 9, 1975), Docket No. 9968 (CCH 9968) in thisdecision, Judge Chodes resolved a similar allegation where; ?The employerproduced an interpretation of the standard from the ANSI committee whichdrafted it. * * *. While entitled to careful consideration, Judge Chodes ruledthe ANSI interpretation is not controlling because it is contrary to the plainlanguage of the standard.??????????? Thecitation against Truax for violations of 29 CFR ?? 1926.451(a)(13),1926.451(a)(14) and 1926.451(d)(10) are concerned with the scaffold used by theTruax employees. The testimony of William Truax, Jr., is worthy of greaterweight since he not only helped construct the scaffold but also used it. Thetestimony supported by that of the other evidence clearly indicates that theabove standard was violated. The access ladder or other safe means of gettingup to the top platform was not by the scaffold. The testimony of the witnessesand other evidence was sufficient to establish the absence of a safe means ofaccess to the scaffold platform. The testimony and evidence also demonstratedthat the planks used on the platform violated the standard by exceeding theamount of overhang permitted and created a hazard not only to the employees butalso to the rescue workers in their effort to reach the top platform. Theabsence of toeboards is clearly established. However, the presence ofguardrails has been disputed. Testimony of several of the witnesses lendssufficient credibility to show that the guardrails were not installed at allopen sides and ends of the scaffold as required by the standard. Accordingly,the evidence and testimony are sufficient to establish the violations of 29 CFR?? 1926.451(a)(13), 1926.451(a)(14) and 1926.451(d)(10) by the respondentTruax.??????????? Weare next concerned with the imposition of penalties. The Secretary proposed anunadjusted penalty of $1,000.00 against respondent Pearson. The unadjustedpenalty was then reduced to a proposed penalty of $600.00. After consideringall of the evidence and testimony, and the fact that a worker was electrocuted,together with the criteria set forth in section 17 of the Act, I am persuadedto conclude that a penalty of $1,000.00 would be appropriate under thecircumstances.??????????? Theimposition of a penalty against respondent Truax for violation of the standards29 CFR ?? 1926.451(a)(13), 1926.451(a)(14) and 1926.451(d)(10) has also beenweighed against the evidence, testimony and criteria of section 17 of the Act.After giving due consideration to all of the above, I find that an unadjustedpenalty of $1,000.00 should be assessed. The fact that an employee was killedwhile at work, requires that an appropriate aura of awareness be establishedfor compliance with the standards of the Act by the respondents. The gravity ofthe violations by Pearson and Truax justify the assessment of an unadjustedpenalty under the circumstances of this case.??????????? Anymotions and objections not previously disposed of are denied.FINDINGS OF FACT??????????? Thecredible evidence and the record as a whole establishes preponderant proof ofthe following specific findings of fact:??????????? 1.Respondent Pearson Electric Company, Inc., is a New York Corporation doingelectrical contract work in the construction business and employs approximately15 employees. Many of the materials used are manufactured outside the State ofNew York.??????????? 2.Respondent Truax and Hovey Drywall Corporation is a New York Corporation in thedrywall construction business and employs approximately 75 to 100 employees.Many of the materials used by it are manufactured outside the State of NewYork.??????????? 3.The evidence shows that respondent Pearson permitted temporary 277 and 115 voltopen conductors on the jobsite that were supported by pieces of electrical wireand hung on bent nails throughout in a loose manner.??????????? 4.The evidence shows that respondent Pearson permitted temporary 277 and 115 voltopen conductors which were not separated from contact with walls and passedthrough said walls without tubes of non-combustible, non-absorptive insulatingmaterial.??????????? 5.The evidence shows that respondent Pearson permitted temporary 277 and 115 voltopen conductors to run along the floors, walls, and ceiling in a loose manner,coming in contact with conduit, grillwork, steel supports on ceilings, and witheach other.??????????? 6.The evidence shows that respondent Truax notified the Superintendent andPearson?s foreman of the break in the wires prior to the afternoon coffee breakon July 17, 1975.??????????? 7.The evidence shows that respondent Truax relied upon the Superintendent andPearson?s foreman that the worksite was safe as far as any electrical hazardsfor its employees to return to work after the coffee break on July 17, 1975.??????????? 8.Respondent Truax did not know of the hidden hazard presented by the faultyelectrical wiring.??????????? 9.Respondent Truax did not provide safe access to the top platform of thescaffold on which its employees were working.??????????? 10.Respondent Truax used planks on its scaffold which extended more than 12 inchesover the end supports.11. Respondent Truax permitted its employees to use ascaffold that did not have toeboards and guardrails at all open ends of thescaffold.CONCLUSIONS OF LAW??????????? 1.The respondents Pearson Electric Company, Inc., and Truax and Hovey DrywallCorporation, were at all times herein engaged in a business affecting commercewithin the meaning of section 3 (5) of the Occupational Safety and Health Actof 1970.??????????? 2.The Occupational Safety and Health Review Commission has jurisdiction over the subjectmatter and parties to this action.??????????? 3.Respondent Pearson violated 29 U.S.C. 654(a)(2) by failing to comply with 29CFR ? 1926.400(a) in that all electrical work was not in accordance with theNational Electrical Codes, N.F.P.A. 70?1971, A.N.S.I. C1?1971 to wit: N.F.P.A.70?1971 Article 320?5; Article 320?9; Article 320?10.??????????? 4.Respondent Truax did not violate 29 CFR ? 1926.400(a) and in particular thepertinent provisions of the National Electrical Code, N.F.P.A. 70?1971,A.N.S.I. C1?1971 to wit: N.F.P.A. 70?1971 Article 320?5; Article 320?9 andArticle 320?10.??????????? 5.Respondent Truax violated 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR?? 1926.451(a)(13), 1926.451(a)(14) and 1926.451(d)(10).??????????? 6.All of the above violations are serious violations within the meaning of 29U.S.C. 666.ORDER??????????? Uponthe basis of the foregoing findings of fact and conclusions of law, and uponthe entire record, it is hereby ORDERED that;??????????? Pearsoncitation number one, item one, is affirmed. A penalty of $1,000.00 is assessed.?Truax citation number one, item one, is vacated.Citation number two, item one, is affirmed. A penalty of $1,000.00 is assessed.?SEYMOUR FIERJUDGE, OSAHRCDated: March 22, 1976?New York, New York\u00a0[1] The standardsprovide:1926.451(a)(13)An access ladder or equivalent safe access shall be provided.(a)(14)Scaffold planks shall extend over their end supports not less than 6 inches normore than 12 inches.(d)(10)Guardrails made of lumber, not less than 2 x 4 inches (or other material providingequivalent protection), and approximately 42 inches high, with a midrail of 1 x6 inch lumber (or other material providing equivalent protection), andtoeboards, shall be installed at all open sides and ends on all scaffolds morethan 10 feet above the ground or floor. Toeboards shall be a minimum of 4inches in height. Wire mesh shall be installed in accordance with paragraph(a)(6) of this section.[2] In addition tothe scaffolding violations here at issue, Truax was cited for severalelectrical violations relating to the circumstances of the fatal accident. TheJudge found that Truax did not commit these violations. No party has takenexception to this aspect of the Judge?s decision, and the alleged electricalviolations are therefore not before us for review.[3] The scaffold wasbuilt in two levels: the level on which the employees were working at the timeof the accident, and a lower level approximately six feet above the mezzanine.The Secretary argues in his brief that Truax violated the standard on bothlevels. The pleadings, however, did not refer to two levels, and the partiesstipulated to facts concerning only the upper level. Moreover, although thelower level was mentioned during the testimony, the vast bulk of the evidenceconcerned the upper level, and the Judge did not make specific findings withrespect to the lower level. Considering the entire record, we conclude that theparties, at the hearing, did not understand that the question of a violation onthe lower level was in issue, and we therefore do not address whether aviolation occurred on that level.[4] But see KennecottCopper Company, 76 OSAHRC 81\/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD para.20,860 (No. 5958, 1976), aff?d, No. 76-1735 (10th Cir., Dec. 23, 1977). InKennecott, a divided Commission held that 29 C.F.R. 1910.28(a)(12), a generalindustry standard worded identically to 1926.451(a)(13), did not impose a userequirement. The general industry standards, however, contain no counterpart to1926.450(a)(1), and Kennecott is therefore distinguishable from thiscase.Chairman Cleary would not rely onthe ?use? language in another standard. He would hold that a standard thatrequires an employer to ?provide? a safety device implicitly requires that thedevice be used. Kennecott Copper Co., supra, (Cleary dissenting); HillsdaleLumber & Manufacturing, Inc., 77 OSAHRC 54\/D2, 5 BNA OSHC 1281, 1977-78CCH OSHD para. 21,766 (No. 5815, 1977) (Cleary, dissenting).[5] In RustEngineering Co., 77 OSAHRC 37\/C8, 5 BNA OSHC 1183, 1977-78 CCH para. 21,693(No. 12200, 1977), employees climbed ladder-like rungs in the framework of ascaffold to gain access to the scaffold platform. Because the rungs deviatedfrom the requirements for ladder rungs established by the applicable standards,the Commission concluded that using them as a means of access violated thestandard. In Rust, however, the violation was found to be de minimis becausethe configuration of the rungs made the hazard trifling. In this case, the scaffoldframework does not contain rungs similar to those in Rust, and the violation istherefore not de minimis.[6] In particular,Truax does not contend that it was necessary for the employees to remove theguardrail to perform their work.[7] See, e.g. CaliforniaStevedore & Ballast Co., 73 OSAHRC 39\/B5, 1 BNA OSHC 1305, 1973-74 CCHOSHD para. 16,520 (No. 14, 1973), aff?d, 517 F.2d 986 (9th Cir. 1975).[8] A Commissionermay vote simply to avoid an impasse. Public Service Commission of State ofN.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v.United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring inresult).[9] The Courtdistinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied,sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958),because oral argument was statutorily required if a party requested it. 348F.2d 798, n. 14.[???] Transcriptreferences.”