“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 3344\t\t\t\t\t\t\t\t\t\tUNDERHILL CONSTRUCTION CORP.,\t\t\t\t\t\t\t\t\t\tIndividually and DIC CONCRETE,\t\t\t\t\t\t\t\t\t\tIndividually, Trading as DIC-UNDERHILL, A\t\t\t\t\t\t\t\t\t\tJOINT VENTURE\t\t\t\t\t\t\t\t\t\tRespondents.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\tCLEARY, Commissioner:\t\t\t\t\t\t\t\t\t\tOn July 8, 1974, Judge David G. Oringer issued a decision affirming citations issued to\t\t\t\t\t\t\t\t\t\tthe respondent for one serious and five nonserious violations of the Occupational Safety and\t\t\t\t\t\t\t\t\t\tHealth Act of 1970, 29 U.S.C. \u00a7 651 et seq. [hereinafter referred to as \u2018the Act\u2019]. A sixth alleged\t\t\t\t\t\t\t\t\t\tnonserious violation was found to have merged with the serious violation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe decision of the Judge was directed for review before the Commission by\t\t\t\t\t\t\t\t\t\tCommissioner Moran pursuant to section 12(j) of the Act on August 7, 1974. The order for\t\t\t\t\t\t\t\t\t\treview was issued sua sponte on the following issues:\t\t\t\t\t\t\t\t\t\t(1) Was there sufficient evidence to justify the Judge\u2019s conclusions of law?\t\t\t\t\t\t\t\t\t\t(2) Does the pending case, involving the same parties (OSAHRC Docket No.\t\t\t\t\t\t\t\t\t\t1307) and involving an alleged noncompliance with the same occupational safety\t\t\t\t\t\t\t\t\t\tand health standard, constitute a bar to this case or have any effect thereon?\t\t\t\t\t\t\t\t\t\t(3) Do the provisions of 29 C.F.R. \u00a7 1926.1050 render the standards inapplicable\t\t\t\t\t\t\t\t\t\tin this case?\t\t\t\t\t\t\t\t\t\tHaving reviewed the record in this case, we affirm the decision of the Judge.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDic Concrete Corporation and Underhill Construction Corporation, are corporations\t\t\t\t\t\t\t\t\t\torganized under the laws of the State of New York doing business as Dic-Underhill, a Joint\t\t\t\t\t\t\t\t\t\tVenture [hereinafter \u2018respondent\u2019]. During the period from May 4, 1973 through May 8, 1973,\t\t\t\t\t\t\t\t\t\tan inspection was conducted at a construction site at 25th Street and FDR Drive in New York,\t\t\t\t\t\t\t\t\t\tNew York. Respondent was engaged in erecting the concrete superstructure for several high-rise\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tbuildings and a garage at that site. As a result of the inspection, two citations were issued. A\t\t\t\t\t\t\t\t\t\tcitation alleging a serious violation of the Act for failure to comply with the standard at 29 CFR\t\t\t\t\t\t\t\t\t\t\u00a7 1926.500(d)(1) was issued on May 8, 1973. A second citation alleging six nonserious\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tviolations and a notification of proposed penalty were issued to respondent on May 18, 1973.\t\t\t\t\t\t\t\t\t\tI.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOn June 8, 1973, respondent filed its notice of contest in this case. Judge Oringer found\t\t\t\t\t\t\t\t\t\tthat only the six items of the nonserious citation and the proposed penalties for those six items\t\t\t\t\t\t\t\t\t\twere put in issue by the notice of contest. The serious citation and the attendant \u00a7 1,000 proposed\t\t\t\t\t\t\t\t\t\tpenalty were held to have become final orders by operation of section 10(a) of the Act. It is\t\t\t\t\t\t\t\t\t\trespondent\u2019s position that the notice of contest also placed in issue the serious citation of May 8,\t\t\t\t\t\t\t\t\t\t1973, and the penalty therefor.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWe agree with the Judge\u2019s disposition of this issue. It is well settled that matters not\t\t\t\t\t\t\t\t\t\tcontested within 15 working days of receipt of the citation become final orders as a matter of\t\t\t\t\t\t\t\t\t\tlaw. Section 10(a) of the Act; Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 487 F.2d 230\t\t\t\t\t\t\t\t\t\t(5th Cir. 1973); Florida East Coast Properties, Inc., No. 2354 (February 5, 1974), 6 OSAHRC\t\t\t\t\t\t\t\t\t\t404, BNA 1 OSHC 1532, CCH 1973\u201374 OSHD para. 17,272. Construed in a manner most\t\t\t\t\t\t\t\t\t\tfavorable to respondent, the notice of contest in this case is express and unequivocal in\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tcontesting only the citation of May 18, 1973, and the penalties proposed for that citation.\t\t\t\t\t\t\t\t\t\tHence, the citation of May 8, 1973, had become a final order under the terms of section 10(a) of\t\t\t\t\t\t\t\t\t\tthe Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tA penalty of $1,000 was proposed for the alleged serious violation. The six alleged nonserious\t\t\t\t\t\t\t\t\t\tviolations and respective proposed penalties were as follows:\t\t\t\t\t\t\t\t\t\tItem\t\t\t\t\t\tStandard allegedly violated\t\t\t\t\t\tProposed Penalty\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t29 CFR \u00a7 1926,100(a)\t\t\t\t\t\t$210\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t29 CFR \u00a7 1926.25(a)\t\t\t\t\t\t65\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t29 CFR \u00a7 1926.500(d)(1)\t\t\t\t\t\t210\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t29 CFR \u00a7 1926.24\t\t\t\t\t\t90\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t29 CFR \u00a7 1926.252(a)\t\t\t\t\t\t160\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t29 CFR \u00a7 1926. 45 0(a)(10)\t\t\t\t\t\t210\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tThe only notice of contest reads as follows:\t\t\t\t\t\t\t\t\t\tReference is made to the Citation dated May 18, 1973, issued with respect to the\t\t\t\t\t\t\t\t\t\tabove project consisting of six items and the Notification of Proposed Penalty\t\t\t\t\t\t\t\t\t\twith respect to the foregoing.\t\t\t\t\t\t\t\t\t\tYou are hereby notified in behalf of Underhill Construction Corp. and Dic-\t\t\t\t\t\t\t\t\t\tUnderhill, A Joint Venture that we hereby contest all items of said Citation and\t\t\t\t\t\t\t\t\t\tthe proposed penalties with respect thereto.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMoreover, there is no factual basis that respondent was mislead either by the fact that\t\t\t\t\t\t\t\t\t\tboth citations alleged noncompliance with the standard at 29 CFR \u00a7 1926.500(d)(1), or by the\t\t\t\t\t\t\t\t\t\tfact that a single notification of proposed penalty accompanied only the nonserious citation. Cf.\t\t\t\t\t\t\t\t\t\tAtlantic Marine, Inc. v. O.S.H.R.C., 524 F.2d 476 (5th Cir. 1975). Respondent was already in\t\t\t\t\t\t\t\t\t\tpossession of the citation of May 8 when the notification of proposed penalties and citation of\t\t\t\t\t\t\t\t\t\tMay 18 were served. The alleged failures to comply with the standard at 29 CFR \u00a7\t\t\t\t\t\t\t\t\t\t1926.500(d)(1) contained in the two citations specifically referred to different locations. The\t\t\t\t\t\t\t\t\t\tlisting of proposed penalties also expressly differentiates between the earlier serious violation\t\t\t\t\t\t\t\t\t\tand the nonserious violations. Respondent used precise language in its notice of contest that\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\treferenced only the latter citation and the penalties proposed therefor. We, therefore, find no\t\t\t\t\t\t\t\t\t\tevidence of prejudice to respondent with respect to the filing of its notice of contest.\t\t\t\t\t\t\t\t\t\tII.\t\t\t\t\t\t\t\t\t\tRespondent further asserts several broad arguments that all citations and penalties should\t\t\t\t\t\t\t\t\t\tbe vacated. We consider these arguments only to the extent that they are applicable to the\t\t\t\t\t\t\t\t\t\tcitation alleging nonserious violations.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFirst, it is argued that because respondent began negotiation on the contract before April\t\t\t\t\t\t\t\t\t\t21, 1971, for the particular job involved in this case, the exemption found at 29 CFR \u00a7\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\t1926.1050 is applicable. Respondent would construe the exemption as placing work resulting\t\t\t\t\t\t\t\t\t\tfrom the contracts described in the standard outside the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis argument has previously been rejected by the Commission and by the Second\t\t\t\t\t\t\t\t\t\tCircuit in Underhill Construction Co. v. O.S.H.R.C., 526 F.2d 53 (2d Cir. 1975); and by one\t\t\t\t\t\t\t\t\t\tdistrict court in United States v. J. M. Rosa Construction Co., Inc., Civil Action No. B\u2013637 (D.\t\t\t\t\t\t\t\t\t\tConn., April 2, 1973), BNA 1 OSHC 1188, CCH 1971\u201373 OSHD para. 15,643. We reject the\t\t\t\t\t\t\t\t\t\targument here for the reasons stated in Underhill and Rosa.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tThere also is no contention that the issuance of the citations and notification of proposed\t\t\t\t\t\t\t\t\t\tpenalties did not comply with the appropriate regulations of the Secretary. See Atlantic Marine,\t\t\t\t\t\t\t\t\t\tInc. v. O.S.H.R.C., supra.\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tThe standard at 29 CFR \u00a7 1926.1050 reads as follows:\t\t\t\t\t\t\t\t\t\tExcept where different effective dates are specifically provided in [\u00a7\u00a7 1926.1051\t\t\t\t\t\t\t\t\t\tand 1518.1051, respectively] the safety and health standards published in Subpart\t\t\t\t\t\t\t\t\t\tC through U of this part shall become effective on April 24, 1971, for all Federal\t\t\t\t\t\t\t\t\t\tand federally assisted advertised contracts subject thereto which are advertised\t\t\t\t\t\t\t\t\t\tafter that date and on April 27, 1971, for all such negotiated contracts for which\t\t\t\t\t\t\t\t\t\tnegotiations begin after that date.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSecond, the Judge found item 3 of the \u2018nonserious\u2019 citation to have merged with the\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tserious citation. Although the specific holding of merger is not disputed on review, respondent\t\t\t\t\t\t\t\t\t\targues generally against the propriety of any citation in this case involving the standard at 29\t\t\t\t\t\t\t\t\t\tCFR \u00a7 1926.500(d)(1). We consider it appropriate to address these arguments in the context of\t\t\t\t\t\t\t\t\t\t\u2018nonserious\u2019 item 3.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRespondent urges that citation in this case, alleging a violation of the standard at 29 CFR\t\t\t\t\t\t\t\t\t\t\u00a7 1926.500(d)(1), is improper because it had previously been cited for noncompliance with the\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tsame standard at this worksite. The 1972 citation had been contested by respondent. As\t\t\t\t\t\t\t\t\t\tauthority for its position in this case, respondent argues that section 10(b) of the Act precludes\t\t\t\t\t\t\t\t\t\tfurther citation at the same project until a final order has issued in the earlier case.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWe disagree. Respondent\u2019s argument ignores the fact that the conditions cited in the\t\t\t\t\t\t\t\t\t\tpresent case are different from those in the earlier citation. Acceptance of respondent\u2019s argument\t\t\t\t\t\t\t\t\t\twould set an artificial limit of a single inspection per workplace, regardless of the size of the\t\t\t\t\t\t\t\t\t\tworkplace. The result would derogate from the statutory protection of workers particularly\t\t\t\t\t\t\t\t\t\twhere, as here, the size of the project is great and the hazards are transitory. There is no\t\t\t\t\t\t\t\t\t\tinfringement upon respondent\u2019s rights because section 10(b) of the Act provides for tolling the\t\t\t\t\t\t\t\t\t\tabatement period where a timely notice of contest is filed \u2018. . . in good faith and not solely for\t\t\t\t\t\t\t\t\t\tdelay or avoidance of penalties.\u2019 Respondent\u2019s claim of harassment is without merit on the facts\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\tof this case.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as it applies to nonserious item 3 alleging noncompliance with the standard at 29\t\t\t\t\t\t\t\t\t\tCFR \u00a7 1926.500(d)(1), we reject respondents argument that the cited standard does not apply to\t\t\t\t\t\t\t\t\t\tconcrete construction. Dic-Underhill, A Joint Venture, No. 3725 (July 24, 1974) (Administrative\t\t\t\t\t\t\t\t\t\tLaw Judge), aff\u2019d by the Commission, October 16, 1975, 20 OSAHRC 534, BNA 4 OSHD\t\t\t\t\t\t\t\t\t\t1051, CCH 1975\u201376 OSHD para. 20,067.\t\t\t\t\t\t\t\t\t\tIII.\t\t\t\t\t\t\t\t\t\tThe final issue on review is whether the evidence of record established the violation of\t\t\t\t\t\t\t\t\t\tthe Act found by the Judge. Having reviewed the entire record, in this respect, we affirm the\t\t\t\t\t\t\t\t\t\tdecision of the Judge with respect to each violation found and the penalties assessed. We\t\t\t\t\t\t\t\t\t\tspecifically adopt the findings of fact and the reasoning applied by Judge Oringer.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tItem 3 of the citation issued May 18, 1973, alleged a failure to comply with the standard at 29\t\t\t\t\t\t\t\t\t\tCFR \u00a7 1926.500(d)(1) with respect to conditions on the roof of building F and one side of the\t\t\t\t\t\t\t\t\t\tthird floor in building D.\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tThe 1972 citation referred only to conditions in building C.\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\tThe inspection and citations in this case followed the 1972 inspection and citation by nearly a\t\t\t\t\t\t\t\t\t\tyear.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSo ORDERED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: OCT 18, 1976\t\t\t\t\t\t\t\t\t\tBARNAKO, Chairman, Concurring:\t\t\t\t\t\t\t\t\t\tI concur in affirming the Judge\u2019s decision for the reasons stated by Commissioner Cleary.\t\t\t\t\t\t\t\t\t\tI do not, however, join in the discussion regarding the propriety of Respondent having been cited\t\t\t\t\t\t\t\t\t\tfor allegedly violating 29 C.F.R. \u00a7 1926.500(d)(1) while it was contesting before the\t\t\t\t\t\t\t\t\t\tCommission a prior citation for a violation of the same standard at the same worksite.\t\t\t\t\t\t\t\t\t\tRespondent defended against the first citation on the ground that the standard, which requires\t\t\t\t\t\t\t\t\t\tguardrails around the perimeters of open-sided floors, does not apply to employees engaged in\t\t\t\t\t\t\t\t\t\tconcrete construction because of the applicability of a more specific standard. Respondent\t\t\t\t\t\t\t\t\t\tcontends that requiring it to erect guardrails at all locations of the jobsite except those\t\t\t\t\t\t\t\t\t\tspecifically mentioned in the first citation, while the validity of its defense is being litigated\t\t\t\t\t\t\t\t\t\tbefore the Commission, is contrary to 29 U.S.C. 659(b), which provides that the abatement date\t\t\t\t\t\t\t\t\t\tspecified in a citation is tolled during a good faith contest of the citation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe issue raised is a significant one. As Commissioner Cleary points out, however, the\t\t\t\t\t\t\t\t\t\tnonserious citation for violation of \u00a7 1926.500(d)(1) was vacated by the Judge on grounds which\t\t\t\t\t\t\t\t\t\tare not before us. Additionally, the serious citation has become a final order by operation of law.\t\t\t\t\t\t\t\t\t\tAccordingly, resolution of Respondent\u2019s argument concerning the propriety of these citations is\t\t\t\t\t\t\t\t\t\tnot necessary for the disposition of this case, and I express no opinion regarding it.\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Dissenting:\t\t\t\t\t\t\t\t\t\tFor the reasons expressed in my dissenting opinion in Secretary v. Underhill\t\t\t\t\t\t\t\t\t\tConstruction Corporation, 15 OSAHRC 366 (1975), the construction standards cited in the\t\t\t\t\t\t\t\t\t\tinstant citations were not applicable to the respondent by virtue of the exemption contained in 29\t\t\t\t\t\t\t\t\t\t8\t\t\t\t\t\t\t\t\t\tC.F.R. \u00a7 1926.1050 because the contract on which respondent was working at the time of the\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8\t\t\t\t\t\t\t\t\t\tSection 1926.1050 provides\t\t\t\t\t\t\t\t\t\tExcept where different effective dates are specifically provided in \u00a7 1926.1051,\t\t\t\t\t\t\t\t\t\tthe safety and health standards published in Subparts C through U of this part\t\t\t\t\t\t\t\t\t\tshall become effective on April 24, 1971, for all Federal and federally assisted\t\t\t\t\t\t\t\t\t\tadvertised contracts subject thereto which are advertised after that date and on\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\talleged violations was executed before April 21, 1971. In that opinion, I also explain why the\t\t\t\t\t\t\t\t\t\tfinality provision in 29 U.S.C. \u00a7 659(a) is not applicable in such a situation. Accordingly, both\t\t\t\t\t\t\t\t\t\tcitations should be vacated in their entirety.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMy colleagues rely on Underhill Construction Corporation v. OSAHRC, 526 F.2d 53 (2d\t\t\t\t\t\t\t\t\t\tCir. 1975) and United States v. J.M. Rosa Construction Co., No. B\u2013637 (D. Conn., April 2,\t\t\t\t\t\t\t\t\t\t1973), to reject respondent\u2019s exemption argument. In Secretary v. Underhill Construction\t\t\t\t\t\t\t\t\t\tCorporation, supra, I traced the regulatory history of 29 C.F.R. \u00a7 1926.1050, explained why the\t\t\t\t\t\t\t\t\t\texemption therein was extended to cover all construction contracts when the scope of the\t\t\t\t\t\t\t\t\t\tapplicability of the 29 C.F.R. Part 1926 construction standards was expanded to include all\t\t\t\t\t\t\t\t\t\tconstruction, and pointed out why the Commission should not rely on the Rosa decision. There is\t\t\t\t\t\t\t\t\t\tno need to repeat what I have said in Underhill, However, I am constrained to register my\t\t\t\t\t\t\t\t\t\tdisagreement with the majority\u2019s reliance on the Circuit Court opinion in Underhill Construction\t\t\t\t\t\t\t\t\t\tCorporation v. OSAHRC, supra.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSubsequent to adopting 29 C.F.R. Part 1926 as occupational safety standards for all\t\t\t\t\t\t\t\t\t\tconstruction, the Secretary of Labor attempted to clarify what portions of Part 1926 had in fact\t\t\t\t\t\t\t\t\t\tbeen adopted. Thus, on February 17, 1972, an additional paragraph was published in the Federal\t\t\t\t\t\t\t\t\t\tRegister, \u00a7 1910.12(c) entitled \u2018Construction Safety Act Distinguished.\u2019 37 Fed. Reg. 3513\t\t\t\t\t\t\t\t\t\t(1972). That paragraph provides in pertinent part:\t\t\t\t\t\t\t\t\t\t\u2018This section adopts as occupational safety and health standards under section 6 of\t\t\t\t\t\t\t\t\t\tthe Act the standards which are prescribed in Part 1926 of this chapter. Thus, the\t\t\t\t\t\t\t\t\t\tstandards (substantive rules) published in Subpart C and the following subparts of\t\t\t\t\t\t\t\t\t\tPart 1926 of this chapter are applied. This section does not incorporate Subparts A\t\t\t\t\t\t\t\t\t\tand B of Part 1926 of this chapter. Subparts A and B have pertinence only to the\t\t\t\t\t\t\t\t\t\tapplication of section 107 of the Contract Work Hours and Safety Standards Act\t\t\t\t\t\t\t\t\t\t(the Construction Safety Act) . . ..\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIf the Secretary had intended to exclude 29 C.F.R. Subpart X, which contains section\t\t\t\t\t\t\t\t\t\t1926.1050, it is only logical that he would have so stated specifically as he did in regard to\t\t\t\t\t\t\t\t\t\tSubparts A and B. To the contrary, however, he stated that \u2018Subpart C and the following subparts\t\t\t\t\t\t\t\t\t\t. . . applied.\u2019 Since the Secretary very carefully and specifically excluded two subparts, it should\t\t\t\t\t\t\t\t\t\tnot be implied that others were also excluded. See Diamond Roofing Co. v. OSAHRC, 528 F.2d\t\t\t\t\t\t\t\t\t\t645, 648 (5th Cir. 1976).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNevertheless, the Second Circuit takes the position in Underhill that, although not\t\t\t\t\t\t\t\t\t\tspecifically excluded in \u00a7 1910.12(c), \u00a7 1926.1050 is excluded by implication. The Court\t\t\t\t\t\t\t\t\t\tconcluded that since \u00a7 1926.1050 does not require \u2018conditions, or the adoption or use of one or\t\t\t\t\t\t\t\t\t\tmore practices, means, methods, operations, or processes, reasonably necessary or appropriate to\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tApril 27, 1971, for all such negotiated contracts for which negotiations begin after\t\t\t\t\t\t\t\t\t\tthat date.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tprovide safe or healthful employment and places of employment\u2019 it does not qualify as an\t\t\t\t\t\t\t\t\t\toccupational safety and health standard as defined in 29 U.S.C. \u00a7 652(8) and therefore, could not\t\t\t\t\t\t\t\t\t\thave been adopted as an established federal standard. 526 F.2d at 57.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Court\u2019s syllogism overlooks the essence of the legislative authority delegated to the\t\t\t\t\t\t\t\t\t\tSecretary under the Act. Whether by adopting national concensus or established Federal\t\t\t\t\t\t\t\t\t\t9\t\t\t\t\t\t\t\t\t\tstandards or by promulgating original occupational safety and health standards under 29 U.S.C.\t\t\t\t\t\t\t\t\t\t\u00a7 655(b), the Secretary must carry out the mandate to assure a safe and healthful workplace. If,\t\t\t\t\t\t\t\t\t\tas the Second Circuit suggests, each and every one of the resultant regulations must conform to\t\t\t\t\t\t\t\t\t\tthe definition provided in 29 U.S.C. \u00a7 652(8), then every corollary provision, such as those found\t\t\t\t\t\t\t\t\t\tin 29 C.F.R. \u00a7 1910 Subparts A and B, would have to be decreed null and void. None of the\t\t\t\t\t\t\t\t\t\tsections in those subparts deal in any way with the specific work practices specified in 29 U.S.C.\t\t\t\t\t\t\t\t\t\t10\t\t\t\t\t\t\t\t\t\t\u00a7 652(8).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tObviously, the Secretary\u2019s authority is not so limited. The grant of regulatory authority\t\t\t\t\t\t\t\t\t\tover a particular subject inexorably carries with it the authority to devise ancillary regulations to\t\t\t\t\t\t\t\t\t\teffectuate that purpose. An effective date provision, such as is contained in \u00a7 1926.1050, is as\t\t\t\t\t\t\t\t\t\t11\t\t\t\t\t\t\t\t\t\tendemic to the regulation of safety and health as any construction practice requirement.\t\t\t\t\t\t11 As it\t\t\t\t\t\t\t\t\t\tis clearly within the Secretary\u2019s power to promulgate new effective date provisions for emerging\t\t\t\t\t\t\t\t\t\tsafety and health standards, so to was it within his power to adopt the effective date provisions\t\t\t\t\t\t\t\t\t\tfor established federal standards when promulgating them as occupational safety and health\t\t\t\t\t\t\t\t\t\tstandards.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn concluding that 29 C.F.R. \u00a7 1926.1050 exclusion did not apply to the adopted\t\t\t\t\t\t\t\t\t\tconstruction standards, the Second Circuit relied on certain effective date provisions contained in\t\t\t\t\t\t\t\t\t\t12\t\t\t\t\t\t13\t\t\t\t\t\t\t\t\t\tthe preamble to 29 C.F.R. Part 1910 (36 Fed. Reg. 10466 (1971))\t\t\t\t\t\tand in 29 C.F.R. \u00a7 1910.17.\t\t\t\t\t\t\t\t\t\tThere is absolutely nothing in those provisions that is inconsistent with the adoption of the\t\t\t\t\t\t\t\t\t\tsection 1926.1050 exemptions. In my opinion, it is clear that the provisions relied on by the\t\t\t\t\t\t\t\t\t\tCourt establish effective dates only where contracts were not advertised on or before April 24,\t\t\t\t\t\t\t\t\t\t1971, or where negotiations had not begun on or before April 27, 1971. There are valid reasons\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9\t\t\t\t\t\t\t\t\t\tThe Secretary\u2019s authority to adopt national consensus or established federal standards pursuant\t\t\t\t\t\t\t\t\t\tto 29 U.S.C. \u00a7 655(a) was limited to the period of two years following the effective date of the\t\t\t\t\t\t\t\t\t\tAct.\t\t\t\t\t\t\t\t\t\t10\t\t\t\t\t\t\t\t\t\tIt is somewhat curious that the Court in Underhill would, on the one hand, question the\t\t\t\t\t\t\t\t\t\tSecretary\u2019s authority to adopt an effective date provision and then on the other, uphold the\t\t\t\t\t\t\t\t\t\tgeneral effective date provisions of \u00a7 1910.17.526 F.2d at 58.\t\t\t\t\t\t\t\t\t\t11\t\t\t\t\t\t\t\t\t\tSee Mourning v. Family Publications Service, Inc., 411 U.S. 356 (1973); 29 U.S.C. \u00a7\u00a7\t\t\t\t\t\t\t\t\t\t651(b)(3) and 655(g).\t\t\t\t\t\t\t\t\t\t12\t\t\t\t\t\t\t\t\t\t526 F.2d at 57.\t\t\t\t\t\t\t\t\t\t13\t\t\t\t\t\t\t\t\t\t526 F.2d at 58.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tfor exempting construction contracts advertised or negotiated before those dates rather than\t\t\t\t\t\t\t\t\t\tsimply prescribing delayed effective dates as was done for other activities.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCompliance with safety and health regulations on construction jobs add considerably to\t\t\t\t\t\t\t\t\t\tthe already high costs, and the hazards associated therewith are not continuing because they are\t\t\t\t\t\t\t\t\t\teliminated upon completion of the project. The Secretary properly balanced these factors in\t\t\t\t\t\t\t\t\t\tdetermining that the exemption was necessary because employers already committed to\t\t\t\t\t\t\t\t\t\tconstruction contracts on the effective date of the new safety regulations would have had to\t\t\t\t\t\t\t\t\t\tabsorb the increased costs of compliance which were impossible to anticipate at the time their\t\t\t\t\t\t\t\t\t\tbids were submitted. That rationale for the exemption is as sound today as it was in 1971.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe holding of the Circuit Court in Underhill means that even contractors on Federal and\t\t\t\t\t\t\t\t\t\tfederally assisted projects who were initially exempted from the construction standards in Part\t\t\t\t\t\t\t\t\t\t1926 were divested of that exemption by the subsequent promulgation of Part 1910. Such an ex\t\t\t\t\t\t\t\t\t\tpost facto withdrawal of the exemption is as unjust as it is illogical.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn view of the majority\u2019s reliance on Judge Oringer\u2019s decision, the same is attached\t\t\t\t\t\t\t\t\t\thereto as Appendix A.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 3344\t\t\t\t\t\t\t\t\t\tUNDERHILL CONSTRUCTION CORP.,\t\t\t\t\t\tFINAL ORDER DATE: August 7, 1974\t\t\t\t\t\t\t\t\t\tIndividually and DIC CONCRETE,\t\t\t\t\t\t\t\t\t\tIndividually, Trading as DIC-UNDERHILL, A\t\t\t\t\t\t\t\t\t\tJOINT VENTURE\t\t\t\t\t\t\t\t\t\tRespondents.\t\t\t\t\t\t\t\t\t\tAppearances:\t\t\t\t\t\t\t\t\t\tFor the Secretary of Labor\t\t\t\t\t\t\t\t\t\tRegional Solicitor\t\t\t\t\t\t\t\t\t\tU. S. Department of Labor\t\t\t\t\t\t\t\t\t\t1515 Broadway, Rm. 3555\t\t\t\t\t\t\t\t\t\tNew York, New York 10036\t\t\t\t\t\t\t\t\t\tLouis D. DiBernardo, Esq.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFor the Respondent\t\t\t\t\t\t\t\t\t\tWilliam J. Pastore, Esq.\t\t\t\t\t\t\t\t\t\tNorton, Sacks, Molineaux & Pastore, Esqs.\t\t\t\t\t\t\t\t\t\t230 Park Avenue\t\t\t\t\t\t\t\t\t\tNew York, New York 10017\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\tDavid G. Oringer, Judge: This is a proceeding under Section 10(c) of the Occupational Safety\t\t\t\t\t\t\t\t\t\tand Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as \u2018The Act\u2019) to review\t\t\t\t\t\t\t\t\t\tcitations issued by the Secretary of Labor (hereinafter referred to as \u2018Complainant\u2019), pursuant to\t\t\t\t\t\t\t\t\t\tSection 9(a), and a proposed assessment of penalties thereon issued, pursuant to Section 10(a) of\t\t\t\t\t\t\t\t\t\tthe Act. The citation issued on or about May 8, 1973 was for a serious violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 C.F.R. 1926.500(d)(1). The citation issued on May 18, 1973, alleges that as a result\t\t\t\t\t\t\t\t\t\tof an inspection of the respondent\u2019s work place on May 4, 1973, the said respondent violated in a\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tnon-serious manner, six of the Secretary\u2019s standards duly promulgated pursuant to Section 6 of\t\t\t\t\t\t\t\t\t\tthe Act. The standards allegedly violated by the respondent, read as follows:\t\t\t\t\t\t\t\t\t\tSerious Violation\t\t\t\t\t\t\t\t\t\tItem No. 1\t\t\t\t\t\t29 C.F.R. 1926.500(d)(1)\t\t\t\t\t\t(d) Guarding of open-sided floors, platforms, and\t\t\t\t\t\t\t\t\t\trunways. (1) Every open-sided floor or platform\t\t\t\t\t\t\t\t\t\t6 feet or more above adjacent floor or ground\t\t\t\t\t\t\t\t\t\tlevel shall be guarded by a standard railing, or\t\t\t\t\t\t\t\t\t\tthe equivalent, as specified in paragraph (f)(1) of\t\t\t\t\t\t\t\t\t\tthis section, on all open sides, except where there\t\t\t\t\t\t\t\t\t\tis entrance to a ramp, stairway, or fixed ladder.\t\t\t\t\t\t\t\t\t\tThe railing shall be provided with a standard\t\t\t\t\t\t\t\t\t\ttoeboard wherever, beneath the open sides,\t\t\t\t\t\t\t\t\t\tpersons can pass, or there is moving machinery,\t\t\t\t\t\t\t\t\t\tor\t\t\t\t\t\tthere\t\t\t\t\t\tis\t\t\t\t\t\tequipment\t\t\t\t\t\twith\t\t\t\t\t\twhich\t\t\t\t\t\tfalling\t\t\t\t\t\t\t\t\t\tmaterials could create a hazard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNon-serious violations\t\t\t\t\t\t\t\t\t\tItem No. 1\t\t\t\t\t\t29 C.F.R. 1926.100(a)\t\t\t\t\t\tHead Protection.\t\t\t\t\t\t\t\t\t\t(a) Employees working in areas where there is a\t\t\t\t\t\t\t\t\t\tpossible danger of head injury from impact, or from\t\t\t\t\t\t\t\t\t\tfalling or flying objects, or from electrical shock and\t\t\t\t\t\t\t\t\t\tburns, shall be protected by protective helmets.\t\t\t\t\t\t\t\t\t\tItem No. 2\t\t\t\t\t\t29 C.F.R. 1926.25(a)\t\t\t\t\t\tHousekeeping\t\t\t\t\t\t\t\t\t\t(a) During the course of construction, alteration, or\t\t\t\t\t\t\t\t\t\trepairs, form and scrap lumber with protruding nails,\t\t\t\t\t\t\t\t\t\tand all other debris, shall be kept cleared from work\t\t\t\t\t\t\t\t\t\tareas, passageways, and stairs, in and around\t\t\t\t\t\t\t\t\t\tbuildings or other structures.\t\t\t\t\t\t\t\t\t\tItem No. 3\t\t\t\t\t\t29 C.F.R. 1926.500(d)(1)\t\t\t\t\t\tSee above.\t\t\t\t\t\t\t\t\t\tItem No. 4\t\t\t\t\t\t29 C.F.R. 1926.24\t\t\t\t\t\tFire Protection and prevention.\t\t\t\t\t\t\t\t\t\tThe\t\t\t\t\t\temployer\t\t\t\t\t\tshall\t\t\t\t\t\tbe\t\t\t\t\t\tresponsible\t\t\t\t\t\tfor\t\t\t\t\t\tthe\t\t\t\t\t\t\t\t\t\tdevelopment and maintenance of an effective fire\t\t\t\t\t\t\t\t\t\tprotection and prevention program at the job site\t\t\t\t\t\t\t\t\t\tthroughout all phases of the construction, repair,\t\t\t\t\t\t\t\t\t\talteration, or demolition work. The employer shall\t\t\t\t\t\t\t\t\t\tensure the availability of the fire protection and\t\t\t\t\t\t\t\t\t\tsuppression equipment required by Subpart F of this\t\t\t\t\t\t\t\t\t\tpart.\t\t\t\t\t\t\t\t\t\tItem No. 5\t\t\t\t\t\t29 C.F.R. 1926.252(a)\t\t\t\t\t\tDisposal of waste materials.\t\t\t\t\t\t\t\t\t\t(a) Whenever materials are dropped more than 20\t\t\t\t\t\t\t\t\t\tfeet to any point lying outside the exterior walls of\t\t\t\t\t\t\t\t\t\tthe building, an\t\t\t\t\t\tenclosed chute of\t\t\t\t\t\twood, or\t\t\t\t\t\t\t\t\t\tequivalent material, shall be used. For the purpose of\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tthis paragraph, an enclosed chute is a slide, closed in\t\t\t\t\t\t\t\t\t\ton all sides, through which material is moved from a\t\t\t\t\t\t\t\t\t\thigh place to a lower one.\t\t\t\t\t\t\t\t\t\tItem No. 6\t\t\t\t\t\t29 C.F.R. 1926.450(a)(10)\t\t\t\t\t\tLadders.\t\t\t\t\t\t\t\t\t\t(a)(10) Portable ladders in use shall be tied, blocked,\t\t\t\t\t\t\t\t\t\tor\t\t\t\t\t\totherwise\t\t\t\t\t\tsecured\t\t\t\t\t\tto\t\t\t\t\t\tprevent\t\t\t\t\t\ttheir\t\t\t\t\t\tbeing\t\t\t\t\t\t\t\t\t\tdisplaced.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe serious violation, as alleged by the complainant, is described as follows:\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1926.500(d)(1)\t\t\t\t\t\tGuarding\t\t\t\t\t\tof\t\t\t\t\t\topen-sided\t\t\t\t\t\tfloors,\t\t\t\t\t\tplatforms,\t\t\t\t\t\tand\t\t\t\t\t\t\t\t\t\tPage 27543\t\t\t\t\t\trunways. (d)(1) Failure to provide every open-sided\t\t\t\t\t\t\t\t\t\tAs adopted by 29 C.F.R. 1910.12\t\t\t\t\t\tfloor or platform 6 ft. or more above adjacent floor or\t\t\t\t\t\t\t\t\t\tground level guarding by a standard railing or the\t\t\t\t\t\t\t\t\t\tequivalent as specified in paragraph (f)(i) of this\t\t\t\t\t\t\t\t\t\tsection. On all open sides except where there is\t\t\t\t\t\t\t\t\t\tentrance to a ramp stairway or fixed ladder. The\t\t\t\t\t\t\t\t\t\trailing shall be provided with a standard toeboard\t\t\t\t\t\t\t\t\t\twherever beneath the open sides persons can pass\t\t\t\t\t\t\t\t\t\tlocation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe non-serious violations, as alleged by the complainant are described as follows:\t\t\t\t\t\t\t\t\t\tItem No. 1\t\t\t\t\t\t29 C.F.R. 1926.100(a)\t\t\t\t\t\tFailure to protect employer working in areas where\t\t\t\t\t\t\t\t\t\tpage 27512 as adopted\t\t\t\t\t\tthere is possible danger of head injury from impact\t\t\t\t\t\t\t\t\t\tby 29 C.F.R. 1910.12\t\t\t\t\t\tor from falling or flying objects by protective\t\t\t\t\t\t\t\t\t\thelmets.\t\t\t\t\t\t\t\t\t\tLocation:\t\t\t\t\t\t\t\t\t\ta. Bldg. \u2018D\u2019 East Area 12 men 3rd fl.\t\t\t\t\t\t\t\t\t\tb. Bldg. \u2018D\u2019 West area 6th fl 10 men\t\t\t\t\t\t\t\t\t\tc. Yard area 2 men\t\t\t\t\t\t\t\t\t\tItem No. 2\t\t\t\t\t\t29 C.F.R. 1926.25(a) page\t\t\t\t\t\tFailure during the course of construction to clear\t\t\t\t\t\t\t\t\t\t27509 as adopted by 29\t\t\t\t\t\tform & scrap lumber with protruding nails and all\t\t\t\t\t\t\t\t\t\tC.F.R. 1910.12\t\t\t\t\t\tother debris from work areas, passageways, and\t\t\t\t\t\t\t\t\t\tstairs, in and around buildings or other structures.\t\t\t\t\t\t\t\t\t\tLocation:\t\t\t\t\t\t\t\t\t\ta. Roof Bldg \u2018F\u2019\t\t\t\t\t\t\t\t\t\tb. Bulkhead top fl Bldg. \u2018F\u2019\t\t\t\t\t\t\t\t\t\tc. Yard area of site\t\t\t\t\t\t\t\t\t\tItem No. 3\t\t\t\t\t\t29\t\t\t\t\t\tC.F.R.\t\t\t\t\t\t1926.500(d)(1)\t\t\t\t\t\tFailure to provide every open-sided floor or platform\t\t\t\t\t\t\t\t\t\tpage 27543 as adopted by\t\t\t\t\t\t6 ft. or more above adjacent floor or ground level\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1910.12\t\t\t\t\t\tguarding by a standard railing or the equivalent as\t\t\t\t\t\t\t\t\t\tspecified in paragraph (f)(1) of this section on all\t\t\t\t\t\t\t\t\t\topen sides except where there is entrance to a ramp,\t\t\t\t\t\t\t\t\t\tstairway or fixed ladder. The railing shall be\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tprovided with a standard toeboard wherever beneath\t\t\t\t\t\t\t\t\t\tthe open sides persons can pass.\t\t\t\t\t\t\t\t\t\tLocation:\t\t\t\t\t\t\t\t\t\ta. Bldg. \u2018F\u2019 Roof top floor\t\t\t\t\t\t\t\t\t\tb. Bldg. \u2018D\u2019 3rd fl e. side\t\t\t\t\t\t\t\t\t\tItem No. 4\t\t\t\t\t\t29\t\t\t\t\t\tC.F.R.\t\t\t\t\t\t1926.24\t\t\t\t\t\tpage\t\t\t\t\t\tFailure to develop and maintain a effective fire\t\t\t\t\t\t\t\t\t\t27509 as adopted by 29\t\t\t\t\t\tprotection and prevention program at the job site\t\t\t\t\t\t\t\t\t\tC.F.R. 1910.12\t\t\t\t\t\tthroughout all phases of the construction. The\t\t\t\t\t\t\t\t\t\temployer did not ensure the availability of the fire\t\t\t\t\t\t\t\t\t\tprotection above the 21st floor of Bldg \u2018F\u2019 (no\t\t\t\t\t\t\t\t\t\tstandpipe or other equipment was provided).\t\t\t\t\t\t\t\t\t\tItem No. 5\t\t\t\t\t\t29 C.F.R. 1926.252(a) page\t\t\t\t\t\tFailure to provide an enclosed chute of wood or the\t\t\t\t\t\t\t\t\t\t27509 as adopted by 29\t\t\t\t\t\tequivalent when materials were dropped from the\t\t\t\t\t\t\t\t\t\tC.F.R. 1910.12\t\t\t\t\t\t4th floor to a container lying outside. The exterior of\t\t\t\t\t\t\t\t\t\tthe building Bldg. \u2018D\u2019 east side.\t\t\t\t\t\t\t\t\t\tItem No. 6\t\t\t\t\t\t29 C.F.R. 1926.450(a)(10)\t\t\t\t\t\tFailure to secure a ladder, by being tied or blocked\t\t\t\t\t\t\t\t\t\tpage 27534 as adopted by\t\t\t\t\t\tor otherwise secured to prevent displacement.\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1910.12\t\t\t\t\t\tLocation: Bldg \u2018F\u2019 32nd fl roof to bulkhead.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA Notification of Proposed Penalty was issued to the respondent by the complainant, on\t\t\t\t\t\t\t\t\t\tMay 18, 1973, proposing penalties of $1,000 for the serious violation; $210 for Item No. 1 of the\t\t\t\t\t\t\t\t\t\tnon-serious violations; $65 for Item No. 2 of the non-serious violations; $210 for Item No. 3 of\t\t\t\t\t\t\t\t\t\tthe non-serious violations; $90 for Item No. 4 of the non-serious violations; $160 for Item No. 5\t\t\t\t\t\t\t\t\t\tof the non-serious violations; $210 for Item No. 6 of the non-serious violations. Total proposed\t\t\t\t\t\t\t\t\t\tpenalties for all of the alleged violations described above, amounted in the aggregate, to $1,945.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn a letter dated June 8, 1973, the respondent filed a Notice of Contest with the\t\t\t\t\t\t\t\t\t\tcomplainant, contesting the citation dated May 18, 1973, and the six items thereon, as well as the\t\t\t\t\t\t\t\t\t\tproposed penalties with respect to those items. The Notice of Contest is wholly silent as to the\t\t\t\t\t\t\t\t\t\tserious citation issued May 8, 1973, and the penalty of $1,000 proposed therefor. The Notice of\t\t\t\t\t\t\t\t\t\tContest was received by the Occupational Safety and Health Review Commission on or about\t\t\t\t\t\t\t\t\t\tJune 28, 1973, pursuant to section 10(c) of the Act and the case was assigned to the undersigned\t\t\t\t\t\t\t\t\t\ton August 22, 1973, for a hearing pursuant to section 12(e) of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPursuant to notice, the hearing was held on October 18, 1973, in New York City.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tHaving heard the testimony and observed the demeanor of the witnesses, and having\t\t\t\t\t\t\t\t\t\tconsidered the same, together with the citations, Notification of Proposed Penalty, Notice of\t\t\t\t\t\t\t\t\t\tContest, pleadings, representations, stipulations and admissions of the parties, it is concluded that\t\t\t\t\t\t\t\t\t\tsubstantial evidence, on the record considered as a whole, supports the following\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1. Respondent, Underhill Construction Corporation, is a New York corporation with its\t\t\t\t\t\t\t\t\t\tprincipal office located in Bayside, New York, and the respondent, Dic Concrete Corporation, is\t\t\t\t\t\t\t\t\t\ta New York corporation with its principal office located in Elmont, New York. The respondents\t\t\t\t\t\t\t\t\t\ttraded as Dic Underhill, a joint venture, with its office in Bayside, New York (Tr. p. 5).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. The respondent regularly uses substantial quantities of cement imported from Norway,\t\t\t\t\t\t\t\t\t\tcranes manufactured in Wisconsin, and trucks manufactured in Detroit, Michigan (Tr. pp. 5, 6).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. In the year 1972 the respondents had a net worth of $2 million and employed a daily\t\t\t\t\t\t\t\t\t\taverage of more than 1,000 employees (Tr. p. 6).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4. There was proper service of the citations and notification of proposed penalties by the\t\t\t\t\t\t\t\t\t\tcomplainant upon the respondent (Tr. p. 6).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5. The citations were posted at the job site within three days after receipt thereof (Tr. p.\t\t\t\t\t\t\t\t\t\t6).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6. The job site in question is located at 25th Street and FDR Drive and is the same job site\t\t\t\t\t\t\t\t\t\tthat was the subject of a prior citation which was contested and bore the number Docket No.\t\t\t\t\t\t\t\t\t\t1307 (Tr. p 6).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7. The respondent entered into a contract for the work done at this job site located at 25th\t\t\t\t\t\t\t\t\t\tStreet and FDR Drive, New York, New York, prior to April 21, 1971 (Tr. p. 7).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8. Citation No. 1 dated May 8, 1973, which alleged a serious violation of 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.500(d)(1), was hand-delivered to the respondent on May 8, 1973, and a Notification of\t\t\t\t\t\t\t\t\t\tProposed Penalty was served on May 18, 1973, which proposed to assess a penalty of $1,000 for\t\t\t\t\t\t\t\t\t\tthat serious violation. The respondent did not contest the serious violation nor the penalty\t\t\t\t\t\t\t\t\t\tproposed therefor and it became a Final Order of the Commission by operation of law pursuant\t\t\t\t\t\t\t\t\t\tto section 10(a) of the Act, and is not subject to review by any court or agency. (See Citation No.\t\t\t\t\t\t\t\t\t\t1 for serious violation dated May 8, 1973, Notification of Proposed Penalty filed May 18, 1973,\t\t\t\t\t\t\t\t\t\tNotice of Contest dated June 8, 1973, and section 10(a) of the Act.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9. From the sixth floor of the building in question at the time of the inspection herein\t\t\t\t\t\t\t\t\t\tconcerned, some of the employees working on the sixth floor from the ground were not wearing\t\t\t\t\t\t\t\t\t\tprotective helmets where potential hazards existed (Tr. p. 176\u2013181). The same condition existed\t\t\t\t\t\t\t\t\t\tin Building D, in the east erea, the fourth floor, and the yard area (Tr. pp. 55\u201368).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t10. The respondent issued hard hats to its employees (Tr. pp. 179\u2013181).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11. There was scrap and debris including many kinds of wood with protruding nails\t\t\t\t\t\t\t\t\t\tscattered on the work site where it constituted a hazard to employees working in the area and\t\t\t\t\t\t\t\t\t\tthere were respondent\u2019s employees exposed thereto (Tr. pp. 72\u201381, 181\u2013191).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t12. The alleged violation of 29 C.F.R. 1926.500(d)(1) cited in Item No. 3 as a non-\t\t\t\t\t\t\t\t\t\tserious violation merged with the serious violation that was issued on May 8, 1973, as a result of\t\t\t\t\t\t\t\t\t\tthe same inspection. Inasmuch as the aforesaid allegation of violation merged with the original\t\t\t\t\t\t\t\t\t\tserious violation of this standard, the penalties proposed for this item as a non-serious violation\t\t\t\t\t\t\t\t\t\tmust fall.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t13. On the day of the inspection herein in question, employees of the respondent working\t\t\t\t\t\t\t\t\t\ton the 32nd floor were exposed to fire hazards inasmuch as there was no fire protection on that\t\t\t\t\t\t\t\t\t\tfloor nor anywhere above the 21st floor of Building No. F (Tr. pp. 103\u2013117, and 171\u2013176).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t14. At the work site in question on the day of the inspection herein concerned,\t\t\t\t\t\t\t\t\t\trespondent\u2019s employees were exposed to a situation where debris was dumped over the side in\t\t\t\t\t\t\t\t\t\texcess of 20 feet below which was a potential hazard to those employees of the respondent\t\t\t\t\t\t\t\t\t\texposed thereto. Employees using the passageway utilized by Buildings C, A and D, were\t\t\t\t\t\t\t\t\t\texposed thereto (Tr. pp. 119\u2013137, 166\u2013171).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t15. At the work site in question there were exterior walls under construction, which walls\t\t\t\t\t\t\t\t\t\tconstituted \u2018exterior walls\u2019 within the purview of the standard in question (see exhibits C\u20131\t\t\t\t\t\t\t\t\t\tthrough 6).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t16. On the 32nd floor of the work site in question on the day of the inspection herein\t\t\t\t\t\t\t\t\t\tconcerned, the respondent\u2019s employees were exposed to hazards of an unsecured ladder (Tr.\t\t\t\t\t\t\t\t\t\t137\u2013141, 159\u2013165).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t17. The penalty of $1000 proposed for the serious violation of that standard found at 29\t\t\t\t\t\t\t\t\t\tC.F.R. 1926.500(d)(1) was affirmed by operation of the law inasmuch as the respondent did not\t\t\t\t\t\t\t\t\t\tfile a Notice of Contest concerning that ?? or the penalty proposed therefor.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t18. Inasmuch as the alleged violation of that standard found at 29 C.F.R. 1926.500(d)(1)\t\t\t\t\t\t\t\t\t\tis a non-serious violation, and Item No. 3 of the non-serious violations merged, in my opinion,\t\t\t\t\t\t\t\t\t\twith the serious violation of 29 C.F.R. 1926.500(d)(1), the penalty of $210 proposed for the non-\t\t\t\t\t\t\t\t\t\tserious violation of that standard is inappropriate and must fall.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t19. The penalty proposed for Item 1 of the Citation for Non-serious Violations is\t\t\t\t\t\t\t\t\t\tinappropriate in the instant cause and must be modified.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t20. The penalty proposed for Item 2 of the Citation for Non-serious Violations was\t\t\t\t\t\t\t\t\t\tcomputed pursuant to section 17(j) of the Act and met all of the criteria therefor and accordingly\t\t\t\t\t\t\t\t\t\tis appropriate.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t21. The penalty proposed for Item 4 of the Citation for Non-serious Violations was\t\t\t\t\t\t\t\t\t\tcomputed in accordance with section 17(j) of the Act and is appropriate.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t22. The penalty proposed for Item 5 of the Citation for Non-serious Violations was\t\t\t\t\t\t\t\t\t\tproperly computed in accordance with those elements specified in section 17(j) of the Act and\t\t\t\t\t\t\t\t\t\tthus is appropriate.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t23. The penalty proposed for Item 6 of the Citation for Non-serious Violations is\t\t\t\t\t\t\t\t\t\tinappropriate in the instant case and must be modified.\t\t\t\t\t\t\t\t\t\tDISCUSSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis case began with the issuance of the citation by the complainant to the respondent on\t\t\t\t\t\t\t\t\t\tMay 8, 1973, alleging a serious violation of that standard found at 29 C.F.R. 1926.500(d)(1).\t\t\t\t\t\t\t\t\t\tThis was hand-delivered to the respondent on May 8, 1973. Subsequent thereto, on May 18,\t\t\t\t\t\t\t\t\t\t1973, the complainant issued to the respondent a citation alleging six non-serious violations of\t\t\t\t\t\t\t\t\t\tthe standards, including, Inter Alia, another violation of 29 C.F.R. 1926.500(d)(1), herein alleged\t\t\t\t\t\t\t\t\t\tto be non-serious. As far as can be seen both citations arose out of the same inspection, which\t\t\t\t\t\t\t\t\t\ttook place apparently between May 4 and May 8, 1973. Thereafter, on or about May 18, 1973,\t\t\t\t\t\t\t\t\t\tthe respondent was issued a Notification of Proposed Penalty proposing a penalty of $1000 for\t\t\t\t\t\t\t\t\t\tthe May 8 citation alleging a serious violation of 29 C.F.R. 1926.500(d)(1), and various penalties\t\t\t\t\t\t\t\t\t\taggregating $945 for the six non-serious violations alleged in the citation dated May 18, 1973.\t\t\t\t\t\t\t\t\t\tItem No. 3 of the latter citation alleged that the respondent violated 29 C.F.R. 1926.500(d)(1) as\t\t\t\t\t\t\t\t\t\ta non-serious violation and a penalty of $210 was proposed for such violation. On June 8, 1973,\t\t\t\t\t\t\t\t\t\ta Notice of Contest was filed by the respondent that reads as follows:\t\t\t\t\t\t\t\t\t\t\u2018Gentlemen:\t\t\t\t\t\t\t\t\t\tReference is made to the citation dated May 18, 1973 issued with respect to the\t\t\t\t\t\t\t\t\t\tabove project consisting of six items and the Notification of Proposed Penalty\t\t\t\t\t\t\t\t\t\twith respect to the foregoing.\t\t\t\t\t\t\t\t\t\t\u2018You are hereby notified in behalf of Underhill Construction Corp. and Cic-\t\t\t\t\t\t\t\t\t\tUnderhill, a Joint Venture that we hereby contest all items of said citation and the\t\t\t\t\t\t\t\t\t\tproposed penalties with respect thereto.\t\t\t\t\t\t\t\t\t\tVery truly yours,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\/s\/ Bernard Jereski\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is patently obvious that this Notice of Contest only put in issue and only contested the\t\t\t\t\t\t\t\t\t\tcitation issued on May 18, 1973, containing six items and the penalties proposed therefor. No\t\t\t\t\t\t\t\t\t\tother Notice of Contest was filed concerning this case and the citation alleging a serious\t\t\t\t\t\t\t\t\t\tviolation of that standard found at 29 C.F.R. 1926.500(d)(1) became a final order of the\t\t\t\t\t\t\t\t\t\tCommission after 15 days had passed, which cannot be opened by any court or agency.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSubsequent thereto the Secretary issued a complaint, again alleging a violation of 29\t\t\t\t\t\t\t\t\t\tC.F.R. 1926.500(d)(1) as a serious violation, and then alleged all of the other six non-serious\t\t\t\t\t\t\t\t\t\tviolations and proposed penalties, including $1000 for the serious violation of 1926.500(d)(1),\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tdespite the fact that this already had become a final order. Thereafter, the respondent put in an\t\t\t\t\t\t\t\t\t\tanswer denying the violation of 29 C.F.R. 1926.500(d)(1) as a serious violation and the penalty\t\t\t\t\t\t\t\t\t\tof $1000 proposed therefor. The case was tried, and this issue was tried. Now it comes before\t\t\t\t\t\t\t\t\t\tthis tribunal for decision. Both parties have extensively briefed the question concerning the\t\t\t\t\t\t\t\t\t\tviability of that standard found at 29 C.F.R. 1926.500(d)(1). It is my opinion that the question of\t\t\t\t\t\t\t\t\t\tthe violation of that standard insofar as a serious violation is concerned is moot inasmuch as it\t\t\t\t\t\t\t\t\t\twas never contested. Whether this was done by inadvertent error or by deliberate act the result is\t\t\t\t\t\t\t\t\t\tthe same. The Secretary does not have the power to extend the time for a respondent to file a\t\t\t\t\t\t\t\t\t\tNotice of Contest nor does this tribunal. Congress stated, in section 10(a) of the Act,\t\t\t\t\t\t\t\t\t\t\u2018If, after an inspection or investigation, the Secretary issues a citation under\t\t\t\t\t\t\t\t\t\tsection 9(a), he shall, within a reasonable time after the termination of such\t\t\t\t\t\t\t\t\t\tinspection or investigation, notify the employer by certified mail of the penalty, if\t\t\t\t\t\t\t\t\t\tany, proposed to be assessed under section 17 and that the employer has fifteen\t\t\t\t\t\t\t\t\t\tworking days within which to notify the Secretary that he wishes to contest the\t\t\t\t\t\t\t\t\t\tcitation or proposed assessment of penalty. If, within fifteen working days from\t\t\t\t\t\t\t\t\t\tthe receipt of the notice issued by the Secretary the employer fails to notify the\t\t\t\t\t\t\t\t\t\tSecretary that he intends to contest the citation or proposed assessment of penalty,\t\t\t\t\t\t\t\t\t\tand no notice is filed by any employee or representative of employees under\t\t\t\t\t\t\t\t\t\tsubsection (c) within such time, the citation and the assessment, as proposed, shall\t\t\t\t\t\t\t\t\t\tbe deemed a final order of the Commission and not subject to review by any\t\t\t\t\t\t\t\t\t\tCourt or agency.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThere is no question that anything not contested and not within the scope of the contest is\t\t\t\t\t\t\t\t\t\tdeemed uncontested. Respondent specifically related the items that he contested and the\t\t\t\t\t\t\t\t\t\tpenalties attendant thereto. In my opinion, once jurisdiction lapses and the 15 days are over, and\t\t\t\t\t\t\t\t\t\tan item is not contested, there is no way that the Secretary or the Commission may usurp\t\t\t\t\t\t\t\t\t\tjurisdiction. Accordingly, the citation for serious violation alleging violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 C.F.R. 1926.500(d)(1) became a final order of the Commission, together with the\t\t\t\t\t\t\t\t\t\tpenalty of $1000 proposed therefor, by operation of law as soon as 15 days passed after issuance\t\t\t\t\t\t\t\t\t\tof the Notification of Proposed Penalty.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Secretary in Item 3 of the Citation for Non-serious Violations alleged violation of the\t\t\t\t\t\t\t\t\t\tsame standard in a non-serious manner, resulting from the same inspection. As a matter of\t\t\t\t\t\t\t\t\t\tgeneral policy, the Secretary has instructed his representatives that all instances of the same\t\t\t\t\t\t\t\t\t\tviolations of a single standard which are disclosed during an inspection of a single establishment\t\t\t\t\t\t\t\t\t\tshall constitute one alleged violation. (See Compliance Operations Manual, Chapter X, Section\t\t\t\t\t\t\t\t\t\tB1A).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe only recognized exception to the establishment of this principle is where in the area\t\t\t\t\t\t\t\t\t\tdirector\u2019s judgment a single citation will not be sufficient to cover a flagrant situation involving\t\t\t\t\t\t\t\t\t\tnumerous instances of the same violation. (See Compliance Operations Manual, Chapter X,\t\t\t\t\t\t\t\t\t\tSection B1B).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn my opinion, the record in this case does not indicate flagrant violations that would\t\t\t\t\t\t\t\t\t\texcuse a deviation from the Secretary\u2019s own Compliance Manual. Further, considering the\t\t\t\t\t\t\t\t\t\tviolation involved herein, the manner it occurred, the penalty that became a final order, and all of\t\t\t\t\t\t\t\t\t\tthe Res Gestae Circumstances concerning and surrounding this violation, I find that the non-\t\t\t\t\t\t\t\t\t\tserious violation of that standard found at 29 C.F.R. 1926.500(d)(1) merged with the serious\t\t\t\t\t\t\t\t\t\tviolation of 29 C.F.R. 1926.500(d)(1) and as a result the separate allegation of violation must\t\t\t\t\t\t\t\t\t\tfall, together with the penalty in the sum of $210 which was proposed therefor.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as each and every other violation alleged in the citation and complaint, I find that\t\t\t\t\t\t\t\t\t\tthe Secretary sustained his burden of proof thereof. The respondent produced no witnesses and\t\t\t\t\t\t\t\t\t\tdid not seriously injure the testimony of the complainant\u2019s compliance officer during cross-\t\t\t\t\t\t\t\t\t\texamination.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as the violation of that standard found at 29 C.F.R. 1926.100(a) is concerned,\t\t\t\t\t\t\t\t\t\trespondent argues that the men were kneeling and it was likely that a protective helmet would\t\t\t\t\t\t\t\t\t\tfall off the head of the worker unless his chin strap is utilized and that the Secretary\u2019s standards\t\t\t\t\t\t\t\t\t\tdo not require chin straps attached to helmets. He further argues that there is no evidence that the\t\t\t\t\t\t\t\t\t\tuse of a chin strap does not create a greater hazard to the wearer than failure to wear such helmet.\t\t\t\t\t\t\t\t\t\tIn my opinion this argument is not of substance. The complainant proved its prima facie case in\t\t\t\t\t\t\t\t\t\tthat the respondent\u2019s employees were exposed to hazards by failing to wear helmets. If the\t\t\t\t\t\t\t\t\t\trespondent had an affirmative defense, that due to the type of work they were engaged in the\t\t\t\t\t\t\t\t\t\thelmet would fall off and the chin straps were necessary which were not called for by the\t\t\t\t\t\t\t\t\t\tstandard, or argued that the requirement of wearing helmets would be more dangerous than not\t\t\t\t\t\t\t\t\t\twearing them, that would be an affirmative defense to be pleaded and proven, neither of which\t\t\t\t\t\t\t\t\t\twas done. I find that the Secretary proved a prima facie case of violation by uncontroverted\t\t\t\t\t\t\t\t\t\tevidence and there is no rebuttal whatsoever.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as the alleged non-serious violation of C.F.R. 1926.25(a) is concerned, the\t\t\t\t\t\t\t\t\t\trespondent complains that no pictures were taken of this condition. I find that the compliance\t\t\t\t\t\t\t\t\t\tofficer\u2019s testimony is sufficient to prove a prima facie case in this regard. It was up to the\t\t\t\t\t\t\t\t\t\trespondent to rebut this testimony with contrary testimony if he were able so to do. However,\t\t\t\t\t\t\t\t\t\tthis does not appear in the record. The compliance officer\u2019s testimony is uncontroverted, and in\t\t\t\t\t\t\t\t\t\tmy opinion, he stood up well under cross-examination, and I find his testimony credible on the\t\t\t\t\t\t\t\t\t\tissues. The respondent further complains that the compliance officer did not give any testimony\t\t\t\t\t\t\t\t\t\tas to who caused the condition and to how long it had existed. I find that who caused it is not the\t\t\t\t\t\t\t\t\t\tcorpus delicti of the violation. The important facet is that the respondent\u2019s employees were\t\t\t\t\t\t\t\t\t\texposed to the hazard. I find sufficient testimony to show exposure and potential exposure to this\t\t\t\t\t\t\t\t\t\thazard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as the alleged non-serious violation of 29 C.F.R. 1926.24 is concerned, the\t\t\t\t\t\t\t\t\t\temployees of the respondent, at least on the 32nd floor, were exposed to fire and there was not\t\t\t\t\t\t\t\t\t\tavailable in the area of the work site wherein respondent\u2019s employees were working, fire\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tprotection or suppression equipment required by Subpart F. Insofar as this violation is\t\t\t\t\t\t\t\t\t\tconcerned, the complainant sustained his prima facie case and there is no evidence to the\t\t\t\t\t\t\t\t\t\tcontrary extant; therefore, the violation is proven.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as the alleged non-serious violation of that standard found at 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.252(a) is concerned, this tribunal finds that the Secretary sustained his prima facie case and\t\t\t\t\t\t\t\t\t\tthere is no evidence to the contrary adduced in the record. In my opinion, the walls of this\t\t\t\t\t\t\t\t\t\tbuilding when viewed on the pictures, show that they constitute exterior walls to the extent\t\t\t\t\t\t\t\t\t\trequired by the standard. I find sufficient employee exposure and potential exposure so as to\t\t\t\t\t\t\t\t\t\tconstitute a violation herein.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as the alleged non-serious violation of 29 C.F.R. 1926.450(a)(10) is concerned I\t\t\t\t\t\t\t\t\t\tfind that the complainant sustained the burden of proof of this violation. The compliance officer\t\t\t\t\t\t\t\t\t\ttestified on examination and cross-examination that this ladder was not affixed. He testified that\t\t\t\t\t\t\t\t\t\tit was not tied or otherwise secured to prevent displacement. On cross-examination when cross-\t\t\t\t\t\t\t\t\t\texamined as to whether or not it could be nailed, he stated several times that it was not nailed.\t\t\t\t\t\t\t\t\t\tThe respondent argues that this knowledge was only gained by observation. The respondent\t\t\t\t\t\t\t\t\t\tcould have controverted the testimony by producing a witness if it believed to the contrary. This\t\t\t\t\t\t\t\t\t\tit did not do. The sole testimony in the record is that of the compliance officer and I find it\t\t\t\t\t\t\t\t\t\tcredible on this issue, and accordingly, the violation was proven.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSome comment must be made concerning the failure of the men to wearing protective\t\t\t\t\t\t\t\t\t\thelmets. Final responsibility for such safety factors remains with the employer and the latter has\t\t\t\t\t\t\t\t\t\ta duty to see to it that its employees wear the helmets and to discipline the men for failure so to\t\t\t\t\t\t\t\t\t\tdo.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMuch of the argument in the case is whether or not that standard found at 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.500(d)(1) is or is not applicable to concrete construction work. In my opinion the standard\t\t\t\t\t\t\t\t\t\tis applicable. However, any pronunciation by this tribunal on this issue, in this case, constitutes\t\t\t\t\t\t\t\t\t\tOBITER DICTA in view of my rulings concerning the allegations of violation of that standard,\t\t\t\t\t\t\t\t\t\tfound above. The respondent quotes as precedential on the question of whether or not concrete\t\t\t\t\t\t\t\t\t\tconstruction comes within the purview of this standard, Judge Chalk\u2019s decision in Secretary of\t\t\t\t\t\t\t\t\t\tLabor v. Underhill Construction Company, Docket No. 1307, which is still on review. I\t\t\t\t\t\t\t\t\t\trespectfully disagree with the opinion of my learned brother in this case. On this point Judge\t\t\t\t\t\t\t\t\t\tChodes\u2019 opinion in the Secretary of Labor v. Underhill Construction Corporation, Docket No.\t\t\t\t\t\t\t\t\t\t2081, and Judge Ditore\u2019s decision in Secretary of Labor v. Diesel Construction Co., while not\t\t\t\t\t\t\t\t\t\texactly alike in viewpoint, are more in line with my opinion on this issue. The United States\t\t\t\t\t\t\t\t\t\tDistrict Court for the District of Connecticut in the United States of America v. J. M. Rosa\t\t\t\t\t\t\t\t\t\tConstruction, Inc. also is of the opinion that Judge Ditore\u2019s decision in Secretary of Labor v.\t\t\t\t\t\t\t\t\t\tDiesel Construction Co. was precedential. However, for the reasons discussed above, the issue\t\t\t\t\t\t\t\t\t\thas not reached me and any pronouncement on this issue by this tribunal in the case at bar is pure\t\t\t\t\t\t\t\t\t\tDICTA.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as the penalties are concerned, the penalty for the alleged serious violation of 29\t\t\t\t\t\t\t\t\t\tC.F.R. 1926.500(d)(1) proposed to be assessed in the sum of $1,000 became a Final Order for\t\t\t\t\t\t\t\t\t\treasons previously expressed and, therefore, it is the penalty for that violation. Insofar as the\t\t\t\t\t\t\t\t\t\tpenalty for proven violation of 29 C.F.R. 1926.100(a) is concerned, I find that the proposed\t\t\t\t\t\t\t\t\t\tpenalty of $210 should be modified to $150 taking into consideration all of the elements of 17(j)\t\t\t\t\t\t\t\t\t\tof the Act. Insofar as the proposed penalty for non-serious violation of that standard 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.25(a) proposed to be assessed in the sum of $65, I find that to be appropriate and in\t\t\t\t\t\t\t\t\t\taccordance with section 17(j) of the Act. Insofar as the penalty is concerned for the alleged\t\t\t\t\t\t\t\t\t\tviolation of 29 C.F.R. 1926.500(d)(1) alleged as non-serious violation, for reasons previously\t\t\t\t\t\t\t\t\t\tstated, that penalty is herewith VACATED. As far as the penalty is concerned for Item No. 4 of\t\t\t\t\t\t\t\t\t\tthe citation for non-serious violation, to wit, that standard found at 29 C.F.R. 1926.24 is\t\t\t\t\t\t\t\t\t\tconcerned, the penalty proposed in the sum of $90 is appropriate and in accordance with the\t\t\t\t\t\t\t\t\t\telements mandated by Congress in section 17(j) of the Act. Insofar as the penalty is concerned\t\t\t\t\t\t\t\t\t\tfor Item 5 of the non-serious violations, to wit, of that standard found at 29 C.F.R. 1926.252(a),\t\t\t\t\t\t\t\t\t\tin my opinion the penalty is appropriate, given all of the elements of 17(j) of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tInsofar as the penalty for violation of Item 6 of the citation for non-serious violation, to\t\t\t\t\t\t\t\t\t\twit, of that standard found at 29 C.F.R. 1926.450(a)(10) is concerned, I find it excessive. The\t\t\t\t\t\t\t\t\t\tchances of occurrence of an accident appear minimal. Considering all the elements mandated in\t\t\t\t\t\t\t\t\t\tsection 17(j) of the Act, I find a penalty of $100 appropriate therefor.\t\t\t\t\t\t\t\t\t\tBased on all of the foregoing considerations, the Judge makes the following\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1) At all the times herein mentioned, this respondent was engaged in a business affecting\t\t\t\t\t\t\t\t\t\tcommerce, within the meaning of section 3 (5) of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2) The respondent was, on the dates of the inspection in its work place herein concerned,\t\t\t\t\t\t\t\t\t\tand at all times mentioned herein, an employer subject to the safety and health regulations\t\t\t\t\t\t\t\t\t\tpromulgated by the Secretary of Labor and referred to in the citation and complaint herein.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3) The respondent did not contest the allegation of serious violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 C.F.R. 1926.500(d)(1) issued on May 8, 1973, nor the penalty proposed in the sum\t\t\t\t\t\t\t\t\t\tof $1,000 therefor, and that citation and Notification of Proposed Penalty became a final order of\t\t\t\t\t\t\t\t\t\tthe Commission by operation of law.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4) The allegation of violation of that standard found at 29 C.F.R. 1926.500(d)(1), as a\t\t\t\t\t\t\t\t\t\tnon-serious violation in this cause, merged with the allegation of serious violation and must be\t\t\t\t\t\t\t\t\t\tVACATED, as well as the penalty proposed therefor, in the sum of $210.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5) The respondent, on the day of the inspections herein concerned, was in non-serious\t\t\t\t\t\t\t\t\t\tviolation of those standards found at 29 C.F.R. 1926.100(a); 29 C.F.R. 1926.25(a); 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.24; and 29 C.F.R. 1926.450(a)(10).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6) The penalty proposed for Item 1 of the citation for non-serious violations, in the\t\t\t\t\t\t\t\t\t\tamount of $210, was inappropriate and is herewith modified so as to assess a penalty therefor, in\t\t\t\t\t\t\t\t\t\tthe sum of $150, in consonance with those elements mandated in section 17(j) of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7) The penalty proposed for Item 2 of the citation for non-serious violations, to wit, the\t\t\t\t\t\t\t\t\t\talleged violation of 29 C.F.R. 1926.25(a) found proven, in the sum of $65 is herewith\t\t\t\t\t\t\t\t\t\tAFFIRMED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8) The penalty proposed for Item 3 of the citation for non-serious violations must be\t\t\t\t\t\t\t\t\t\tVACATED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9) The penalty proposed for Item 4 of the citation, to wit, the alleged violation of 29\t\t\t\t\t\t\t\t\t\tC.F.R. 1926.24, found proven, in the sum of $90, is appropriate and in conformity with the\t\t\t\t\t\t\t\t\t\telements found in section 17(j) of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t10) The penalty proposed for Item 5 of the citation, to wit, is appropriate and in\t\t\t\t\t\t\t\t\t\taccordance with section 17(j) of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11) The penalty proposed for Item 6 of the citation in the sum of $210 is found to be\t\t\t\t\t\t\t\t\t\tinappropriate and is herewith modified to the sum of $150.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn view of the foregoing, good cause appearing therefor, it is ORDERED that:\t\t\t\t\t\t\t\t\t\t1. Item 1 of the Citation for Serious Violation alleging a violation of 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.500(d)(1) was affirmed by operation of law and the penalty of $1000 proposed therefor was\t\t\t\t\t\t\t\t\t\tsimilarly AFFIRMED by operation of law.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. Item 3 of the Citation for Non-serious Violations, alleging a non-serious violation of\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1926.500(d)(1) merged with the aforesaid serious violation of 29 C.F.R.\t\t\t\t\t\t\t\t\t\t1926.500(d)(1) and the penalty of $210 proposed for the non-serious violation of that standard is\t\t\t\t\t\t\t\t\t\therewith VACATED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. Item 1 of the Citation for Non-serious Violations, alleging violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 C.F.R. 1926.100(a) is herewith AFFIRMED, and the proposed penalty in the sum of\t\t\t\t\t\t\t\t\t\t$210 is herewith MODIFIED to the sum of $150, and as so modified is herewith ASSESSED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4. Item 2 of the Citation for Non-serious Violation, alleging a violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 C.F.R. 1926.25(a), is herewith AFFIRMED, and the penalty proposed therefor in the\t\t\t\t\t\t\t\t\t\tsum of $65, is herewith similarly AFFIRMED.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5. Item 4 of the Citation for Non-serious Violation, alleging a violation of that standard\t\t\t\t\t\t\t\t\t\tfound at 29 C.F.R. 1926.24 is herewith AFFIRMED, and the penalty of $90 proposed therefor, is\t\t\t\t\t\t\t\t\t\tsimilarly AFFIRMED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6. Item 5 of the Citation for Non-serious Violation, alleging a violation of that standard\t\t\t\t\t\t\t\t\t\tfound 29 C.F.R. 1926.252(a) is herewith AFFIRMED and the penalty in the sum of $160\t\t\t\t\t\t\t\t\t\tproposed therefor is similarly AFFIRMED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7. Item 6 of the Citation for Non-serious Violation, alleging a non-serious violation of\t\t\t\t\t\t\t\t\t\tthat standard found at 29 C.F.R. 1926.450(a)(10) is herewith AFFIRMED and the penalty\t\t\t\t\t\t\t\t\t\tproposed therefor in the sum of $210 is herewith MODIFIED to a penalty of $100, which latter\t\t\t\t\t\t\t\t\t\tpenalty is herewith ASSESSED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSO ORDERED\t\t\t\t\t\t\t\t\t\tDavid G. Oringer\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t\t\t\t\t\t\t\tDated: July 6, 1974\t\t\t”