“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9224 WHIRLPOOL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 11, 1979DECISIONBefore CLEARY, Chairman, BARNAKO and COTTINE,Commissioners.BARNAKO, Commissioner:??????????? The primaryissue in this case is whether Administrative Law Judge David H. Harris erred invacating a citation alleging Respondent Whirlpool Corporation violated ?5(a)(1)[1] of the Occupational Safetyand Health Act of 1970,[2] by maintaining an unsafewalking and working surface, because he concluded the Secretary failed to showthere are feasible steps Whirlpool could have taken to eliminate the hazard.For the reasons that follow, we reverse the decision of the judge and affirmthe citation. We set an abatement date of six months and assess a penalty of$600.??????????? Whirlpoolmanufactures appliances and related parts at its plant in Marion, Ohio. To movethe parts and partially-completed appliances through the manufacturing processand to store the parts and finished appliances, Whirlpool uses a system ofconveyers located above the production floor. To protect the productionemployees working below them from falling parts and appliances, Whirlpoolinstalled a guard screen at most points below the conveyers. The height of thescreen above the floor varies up to twenty feet. The screen is comprised ofthousands of angle-iron framed, four-by-eight foot panels of screen, boltedtogether along the sides. The panels are of three types: 16-gauge expandedsteel mesh, reinforced with one metal strap across the width at the midpoint ofthe length (less reinforced mesh); steel mesh of the same thickness but furtherreinforced with three steel straps, two feet apart, along the length (morereinforced mesh); and heavy duty wire.??????????? AlthoughWhirlpool designed the guard screen primarily to catch parts and appliances,Whirlpool?s employees must work upon the screen for fifteen to thirty man hoursper week to repair the screen and conveyers, remove fallen parts andappliances, and remove and replace paper used by Whirlpool on the screen tocatch oil and grease that drip from the parts. Whirlpool instructs theemployees to walk on the angleirons rather than on the screens, but on severaloccasions employees have slipped off the angle-irons and have broken throughthe screens. On most of these occasions, the employees fell only partiallythrough; they caught themselves on a supporting part of the conveyer system orthe guard screen system, or were caught on the still-intact portion of the screenitself. Nonetheless, one employee fell entirely through a screen to the floorsix feet below at that point. All of these incidents occurred on panels of the16-gauge steel mesh type.??????????? Theemployees reported the incidents, written accident reports were filed forWhirlpool?s safety records, and Whirlpool instructed the maintenance employeesto report and repair any damaged or defective portions of the screen. Whirlpooland been replacing the less reinforced mesh panels with those of the morereinforced mesh, as part of its program to improve the safety of the guardscreen by systematically replacing weaker panels with those of a heavier,stronger material. In late 1973, Whirlpool began installing panels of thenewest, strongest type, containing heavy duty wire screening. By early 1975,thirty-three percent of the panels were of heavy duty wire, forty-two percentwere of the more reinforced mesh, and twenty-five percent remained of the lessreinforced mesh.??????????? Inlate June, 1974, a maintenance employee who was walking on panels of one of thesteel mesh types fell to his death through an opening left between two panelsbecause the bolts were unfastened. This fatality prompted the Secretary toinspect Whirlpool?s plant. Thereafter the Secretary issued a serious citationto Whirlpool alleging it violated ? 5(a)(1) by failing to provide ?a safewalking and working surface on the screen under the conveyer.? The Secretarydid not refer to the fatality or give any more particular description of thecondition he considered made the screen unsafe. Immediate abatement wasrequired. Whirlpool contested the citation and proposed penalty.??????????? Atthe hearing the Secretary adduced evidence concerning the accident, but fromthe outset of his case he concentrated on showing the steel mesh types ofpanels were unsafe as a walking or working surface because they would notsupport the weight of a man. To specify the precise hazard and show Whirlpool?srecognition of it, the Secretary adduced testimony as follows. A civil engineerwith experience with suspended catwalk systems and knowledge of materials ofthe type involved here testified that the 16-gauge expanded steel mesh used inpanels having the same dimensions as Whirlpool?s would not adequately supportthe weight of a man. The compliance officer had given the same opinion when hewas asked to describe the hazard. Moreover, specifically in reference tophotographs showing panels of the mesh types, several of Whirlpool?smaintenance employees not only stated that they had broken through the meshscreen, but additionally testified that supervisors had instructed them to walkon the angle-irons rather than on the mesh screen, that defects in the meshwere discussed with supervisors, that one foreman saw an employee fall almostall the way through a mesh screen breaking under him, and that Whirlpool hadbeen replacing the two mesh types of screen with the newer wire type tostrengthen the screen throughout the plant. Whirlpool?s written safety reportsof the incidents of employees breaking through the screen were introduced intoevidence.??????????? Todispute this evidence, Whirlpool?s Director of Manufacturing Engineeringdescribed his tests of the three types of panels, and testified that all threetypes of screen adequately supported three to six hundred pounds when thisweight was suspended from it. He and a civil engineer with experience withguard screen systems in plants similar to Whirlpool?s testified that mesh guardscreens of the type in Whirlpool?s plant are in general use throughout theindustry. The engineer further stated that the industry views as sufficientlysafe the use of mesh panels of the type used by Whirlpool. These two witnessesand several of the maintenance employees who testified at the request either ofthe Secretary or Whirlpool all opined that the screen, including panels ofmesh, is sufficiently safe for maintenance work performed during as few hoursas fifteen to thirty man hours per week. They all emphasized, nonetheless, theneed to walk principally on the angle-irons, the occurrence of accidents on themesh screen, and Whirlpool?s continuing and systematic efforts to detectdamaged and defective screen and to repair or replace it with panels containingheavy duty wire.??????????? Althoughthe citation did not specify a method of abatement and required immediateabatement, evidence tending to show it would be feasible to abate the hazard byreplacing all mesh panels with heavy duty wire panels was adduced by Whirlpoolitself. Whirlpool?s Director of Manufacturing Engineering stated the following,in answer to a question asking him to describe Whirlpool?s history ofinstalling and replacing screen:Since I came to Marion, it seems we havecontinuously, we have replaced it, we have continuously tried to go to what weconsidered an improved type of guard screen from the standpoint ofmaintenance until we actually got what we call the new style. This not onlygives us our safety factor we require but also easier to maintain unless thereis damage due to falling parts. (Emphasis added). (Transcript at 513).\u00a0??????????? Whirlpool?sSuperintendent of Maintenance acknowledged that heavy duty wire is a heaviertype of material than the mesh, which, is why it has been used most recently inWhirlpool?s program of replacing the older types of panels. The same statementswere made by several of Whirlpool?s maintenance employees on questioning bothby the Secretary and by Whirlpool during the Secretary?s case, including theassertion of one employee, elicited by Whirlpool, that the wire panels are ?[o]nethousand percent better as far as I?m concerned.? (Transcript at 182).[3] Whirlpool had initiallycross-examined the compliance officer as to whether the heavy duty wirecomplied with ? 5(a)(1)?s requirements, and, while he was reluctant to assertunequivocally that it did, he opined that it would. He noted it could supportmore weight than the mesh, and that he had told Whirlpool he would not havecited it for violation of ? 5(a)(1) if all panels were of heavy duty wire.??????????? Thecompliance officer emphasized the citation had not specified a particularmethod of abatement, and did not want to endorse any one method at the hearing,because the choice of abatement method should be Whirlpool?s. Thus, whileeliciting testimony regarding Whirlpool?s use of heavy duty wire, the Secretaryalso presented evidence regarding use of ?-inch expanded metal grating forcatwalks in the areas where employees must perform maintenance. Whirlpooldisputed this and presented evidence that the added weight of the grating, inthe amounts needed to cover all areas, would require Whirlpool to redesign andreconstruct the plant to strengthen the footings, columns, and roof.??????????? JudgeHarris initially issued a decision in this case on July 14, 1975. In thatdecision, Judge Harris responded to an argument by Whirlpool that the citationand complaint were defective for lack of particularity. Although he stated thatthe description of the violation was terse, he concluded that Whirlpool wasaware of the issues raised by the citation and was not prejudiced by anyfailure of the Secretary to more fully define the violation. On the merits, thejudge concluded that Whirlpool?s industry did not recognize a hazard toemployees who work on 16-gauge expanded steel mesh panels. Nonetheless based onthe testimony of employees regarding accidents on mesh screening andWhirlpool?s instructions to them to walk on the angle-irons, the judgeconcluded that Whirlpool was itself aware of the hazard. Nevertheless the judgevacated the citation because he concluded the Secretary should have cited aparticular industry standard, 29 CFR 1910.28(a)(6), rather than ? 5(a)(1).??????????? In adecision dated March 25, 1977, the Commission disagreed with the judge?sdetermination that 29 CFR 1910.28(a)(6) was applicable and accordingly reversedhis decision. The case was remanded to the judge for findings of fact andconclusions of law with respect to the ? 5(a)(1) violation. Whirlpool Corp.,77 OSAHRC 36\/C11, 5 BNA OSHC 1173, 1977?78 CCH OSHD ?21,659 (No. 9224, 1977).??????????? Inhis decision on remand, the judge reiterated his earlier finding that Whirlpoolrecognized the hazard created by the use of mesh panels in its workplace. Hevacated the citation, however, because he found the Secretary failed to show afeasible method by which Whirlpool could abate the hazard. He noted thecompliance officer?s opinion that use of heavy duty wire would constitutecompliance with the Act, but did not find the use of heavy duty wire feasiblebecause the Secretary had made no tests of its strength and because thecompliance officer was ultimately not sure it would comply. Relying onWhirlpool?s evidence that the plant would not support the additional weight ofcatwalks or a floor constructed of the heavier expanded metal grating, he foundthese suggestions infeasible.??????????? Insupport of the judge?s vacation of the citation, Whirlpool argues that theSecretary failed to identify either in the citation, during discovery, or atthe hearing any hazard present at its worksite. Specifically Whirlpool notesthat in the citation the Secretary merely set forth that the guard screen wasan unsafe walking and working surface, but failed to identify the precisecondition making the guard screen unsafe. Whirlpool argues that the setting ofan immediate abatement date in the citation is inconsistent with a conclusionthe Secretary meant to focus on the type of screen as the hazard, and suggestshe viewed the hazard as the failure of the bolts between panels of screen.Whirlpool also argues that subsequently, during discovery and at the hearing,the Secretary refused to identify the hazard and at the hearing did notintroduce any evidence with respect to the specific hazard for which Whirlpoolhad been cited, relying instead upon proof of the general allegation that thescreen was unsafe. In essence, therefore, Whirlpool argues that 1) the citationlacked particularity, in violation of ? 9(a) of the Act, 29 U.S.C. ?\u00a0658(a)[4] and 2) at the hearing theSecretary failed to prove the existence of any hazard because of his failure toidentify the specific conditions constituting the hazard.??????????? Whirlpoolraised this argument previously when the case was before us, and our decisionimpliedly rejected its argument. We explicitly do so now.??????????? Section5(a)(1), which imposes a general duty on employers, is broadly worded andunlimited to any particular hazards or particular methods of abatement.However, when the Secretary cites an employer for violation of this section, hemust comply with ? 9(a) of the Act which requires that a citation ?shall describewith particularity the nature of the violation. . . .? (See footnote 4, supra).The purpose of the particularity requirement is to put the employer on noticeas to the nature of the alleged violation so that he can make an informedchoice on how to abate or whether to contest. See Del Monte Corp., 77OSAHRC 17\/D12, 4 BNA OSHC 2035, 1976?77 CCH OSHD ? 21,534 (No. 11865, 1977).??????????? Althoughthe employer was put on notice by the citation that its screen system wasunsafe, Whirlpool was not informed what conditions rendered the screen unsafe.Since the citation was issued following the death of an employee who fellthrough an opening between two panels because the bolts were unfastened,Whirlpool may well have believed it was this condition for which the citationwas issued and that it should direct its abatement toward fastening the bolts.In fact, however, the Secretary had issued the citation because he did notbelieve the screens themselves were of sufficient strength to support theemployees who were working upon them. The citation failed to specify this andaccordingly facially lacked particularity. However the Commission had held thatthe citation need not be declared void as a matter of law if the purposes ofthe particularity requirement are fulfilled in subsequent stages of theproceedings. Gannett Corp., 4 BNA OSHC 1383, 1976?77 CCH OSHD ?20,915(No. 6352, 1976). In this case any deficiency in the citation was cured duringthe hearing.??????????? Inreaching this result we note that the Secretary?s evidence at the hearing wasnot a model of precision in identifying the hazard. Although the Secretary didfocus early in his case in chief on showing the hazard was the use of the meshas a working surface, he devoted considerable attention to showing that one hazardcontributing to the fatal accident was the failure of the bolts between thepanels. Unfortunately, a foundation had been laid in the citation for his ownconfusion of focus and for Whirlpool?s possible misconception of his case, notonly by the omission of a reference to the mesh as the hazard, but by therequirement of immediate abatement, which most readily suggested abatement byreplacing the bolts rather than by replacing a substantial part of the guardscreen system. Nonetheless, we disagree with Whirlpool that the Secretaryultimately failed satisfactorily to identify the hazard. From the outset of hiscase, the Secretary established that the screen was unsafe because the panelsof 16-gauge expanded steel mesh would not adequately support the weight of theemployees. At no time did Whirlpool object to this evidence on the ground thatit was directed to an issue not raised by the pleadings. Moreover, as notedpreviously, Whirlpool presented evidence during its own case to dispute theSecretary?s evidence that the 16-gauge mesh created a hazard. Whirlpool did notask for a continuance to better prepare its defense, and has not asserted thatit suffered actual prejudice to its defense because of the lack of precision inthe description of the violation in the pleadings. It thus appears thatWhirlpool did actually receive fair notice the alleged hazard was theinadequacy of the mesh panels and that Whirlpool understood the relevance ofevidence on this issue throughout the hearing.[5] Accordingly, we find nobasis in Whirlpool?s arguments for vacation of the citation because thecitation did not set forth the alleged violation with particularity and becausethe Secretary failed to identify the hazard at the hearing.??????????? Inorder to establish a violation of ? 5(a)(1), the Secretary must prove that: (1)the employer failed to render its workplace ?free? of a hazard which was (2)?recognized? and (3) ?causing or likely to cause death or serious physicalharm.? In the past, we have required the Secretary to specify the particularsteps the employer should have taken to avoid the citation and to demonstratethe feasibility and likely utility of those measures. National Realty &Construction Co. v. OSHRC 489 F.2d 1257, 1265, 1268 (D.C. Cir. 1973). It isthis last requirement, regarding the feasibility of abatement methods, to whichthe parties have directed their attention on review.[6]??????????? TheSecretary contends the judge erred in finding the evidence failed to establishthe feasibility and likely utility of any particular steps to abate the hazard.The Secretary argues that the feasibility of panels of heavy duty wire to abatethe hazard was established. In support of his assertion, he notes thecompliance officer?s opinion that heavy duty wire would support more weight thanthe mesh, that heavy duty wire would comply with the requirements of the Act,and that, had it been used, the compliance officer would not have issued thecitation. The Secretary also points to evidence that Whirlpool itself hadchosen to abate the hazard created by the mesh by installing panels of heavyduty wire, and argues that its likely utility as a safe, or significantlysafer, walking surface was shown through testimony of Whirlpool?s employees andthe admission of Whirlpool?s management officials to the compliance officerduring the inspection that heavy duty wire is significantly stronger than themesh. A further showing of the likely utility of the heavy duty wire isunnecessary, in the Secretary?s view. Since the recognized hazard is the inadequatestrength of the mesh, the Secretary argues it is obvious that the abatement isinstallation of panels of a material strong enough to support the employees. Inany event, the Secretary asserts that even if he did not establish thefeasibility and likely utility of a means of abatement, this proof should notbe required. He reasons that National Realty & Construction Co. v. OSHRC,supra, was erroneously decided and has been erroneously applied by theCommission and asks that we now overrule that decision.??????????? Whirlpoolargues that the judge properly vacated the citation on the basis given by him:not only did the Secretary fail to show the feasibility of catwalks constructedof heavier metal grating, but he failed to show the feasibility of a guardscreen consisting entirely of heavy duty wire panels. Whirlpool notes the lackof tests and the compliance officer?s reluctance to endorse heavy duty wire andasserts that its program of replacing older panels with those of heavy dutywire was only undertaken as a way to replace panels, not because the older oneswere unsafe.??????????? Forthe reasons that follow we conclude that the record as a whole supports afinding that the feasibility and likely utility of an abatement method wasestablished. We do not reach the Secretary?s second argument that feasibilityand likely utility need not be demonstrated.??????????? Toestablish that abatement is feasible, the Secretary must formulate and defendhis own theory of what particular steps the employer should have taken to abatethe hazard. National Realty & Construction Co. v. OSAHRC, supra, at1268. Accordingly the Secretary cannot merely assert that he intends to leavethe choice of abatement to the employer. However once he establishes a means ofabatement can be implemented, it is sufficient if that method materiallyreduces, even though it may not eliminate, the hazard. Noble Drilling Corp.,?? OSAHRC ??, 6 BNA OSHC 2108, 1978 CCH OSHD ?23,157 (No. 15405, 1978).??????????? Inthe instant case, we conclude that heavy duty wire could have been utilized andthat it would have significantly reduced the hazard created by working on thescreens.[7] Although we agree with thejudge that the Compliance Officer?s testimony concerning heavy duty wirescreening was equivocal, we need not determine whether his testimony issufficient to carry the Secretary?s burden. In determining whether feasibilityhas been established we will look to the record as a whole.[8] Although Whirlpool arguesit replaced the mesh panels with heavy duty wire only as a way to replace damagedpanels, Whirlpool elicited testimony from its own witnesses including itsDirector of Manufacturing Engineering and the Superintendent of Maintenancethat the heavy duty wire satisfied the safety requirements for use inmaintenance operations. Additionally Whirlpool?s employees testified that, tostrengthen the screen system, heavy duty wire was used to replace the mesh whenemployees fell through, from which we conclude that Whirlpool used it forsafety reasons. Because Whirlpool systematically was replacing the mesh panelswith heavy duty wire throughout the plant, the feasibility of the heavy dutywire to eliminate the hazard and its likely utility in Whirlpool?s plant isapparent. We therefore find the use of heavy duty wire screening feasible, andreverse the judge insofar as he implicitly found it infeasible.??????????? Weturn now to the questions of setting a reasonable period of abatement andassessing an appropriate penalty. With respect to the first question, therecord shows that, at the time of the hearing in early 1975, whirlpool hadreplaced thirty-three percent of the mesh panels with heavy duty wire. Sincethe replacement program using heavy duty wire began in late 1974, it appearsthat Whirlpool had replaced thirty-three percent of the mesh panels over aperiod of approximately one year and a few months. Although Whirlpool wassubstituting the heavy duty wire panels for those of mesh so as to strengthenthe guard screen as a whole, the record shows that Whirlpool had been makingthe particular substitutions only as damage or defects were detected in themesh screens. The compliance officer, having seen a substantial portion of theguard screen system, opined that the complete substitution of heavy duty wirewould take six months. His testimony is uncontradicted. Based upon thecompliance officer?s judgment of the time needed for compliance and because weinfer from Whirlpool?s evidence that its replacement program had not beenproceeding as fast as it could have if Whirlpool were replacing more panelsthan only those that were damaged or defective, we set six months from theentry of our order here as the abatement period.??????????? Weassess a penalty of $600. Whirlpool?s good faith toward compliance with safetyrequirements is evidenced by its program to improve the safety of the guardscreen system, and the compliance officer?s testimony that Whirlpool correcteda number of earlier violations. Nevertheless, Whirlpool is a large employer,and the gravity of this violation is moderate to high. Not only does the recordshow Whirlpool employs 88 maintenance employees who are on the guard screen forup to 15 to 30 man hours per week, but the record shows that a number ofaccidents had already occurred involving a failure of the mesh screening.??????????? Accordingly,we reverse the judge, affirm the serious citation alleging a violation of ?5(a)(1), set an abatement period of six months from the entry of this order,and assess a penalty of $600. SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAY 11, 1979\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9224 WHIRLPOOL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINALORDER DATE: August 17, 1975?DECISIONAppearances:T. J. Pethia, Esq. W. S. Kloepfer,Associate Regional Solicitor1240 East Ninth StreetCleveland, Ohio 44199Attorneys for Complainant\u00a0Robert E. Mann, Esq. Seyfarth, Shaw,Fairweather & Geraldson111 West Jackson BoulevardChicago, Illinois 60604Attorneys for Respondent\u00a0Harris, Judge??????????? Complainant,by means of a citation issued on July 9, 1974 pursuant to Section 658 of theOccupational Safety and Health Act of 1970 (29 U.S.C. 651?678, hereinafter theAct), charged that the Whirlpool Corporation, (hereinafter respondent) was inviolation of Section 654(a)(1) of the Act which requires that each employer:shall furnish to each of his employeesemployment and a place of employment which are free from recognized hazardsthat are causing or are likely to cause death or serious physical harm to hisemployees.???????????? Theviolation, alleged to be a serious violation under the Act, is set out in thecitation as follows:Failure to provide a safe walking andworking surface on the screens under the conveyors.??????????? Thecitation required immediate correction of the alleged violation and aNotification of Proposed Penalty, issued on the same date pursuant to Section659(a), proposed a penalty of $600. The said citation and notice of proposedpenalty were timely contested by the respondent and the matter was tried, onthe issues raised, pursuant to Section 659(c).??????????? Respondentraises two arguments which, if effective, would operate as pleas in bar. I findno merit in either argument.??????????? As tothe first (Respondent?s Brief, p. 25), respondent maintains that the citationand the complaint are defective for want of particularity and do not meet therequirement of Section 658(a) as to the citation and 29 CFR 1903(b) as to thecomplaint. Certainly, the respondent was aware that a conveyor system was inuse at its installation at 1800 Marion Agosta Road in Marion, Ohio, and thatscreens had been installed under the said conveyors. That being so, althoughthe description of the violation which appears in the citation cannot bedescribed as verbose, the respondent is advised that its failure to provide asafe walking and working surface on the said screens is in violation of Section5(a)(1) of the Act (29 U.S.C. 654(a)(1)). Further, in addition to an exchangeof a list of prospective witnesses and summaries of their testimony pursuant tothe court?s order for discovery dated October 15, 1974, the respondent servedInterrogatories and a Request for Admissions and received answers thereon fromthe complainant. I do not find that respondent was in anywise prejudiced by theterse description of the violation which appears in the citation. On the contrary,I find that respondent was fully aware of the issues raised by the saidcitation. See, Secretary v. Dallas Hotel Company, 18 OSAHRC ?? (DocketNo. 5315, 1975). Were it necessary, respondent could have resorted to FederalRule of Civil Procedure 12(e) and moved for a more definite statement prior tofiling its answer herein.??????????? As tothe second argument, interposed by the respondent orally at the commencement oftrial (Tr. 12), the respondent maintains that the complainant did not issue thecitation herein with that ?reasonable promptness? required by Section 658(a) ofthe Act. The record demonstrates that an inspection of respondent?s premisestook place on July 1, 1974. It was during this inspection, occasioned in partby a report of a fatality at respondent?s said plant (Tr. 19), that thecompliance officer making the inspection noticed the screens which weresuspended under the conveyor system (Tr. 21?22). This officer reported to hisArea Director and was detailed to secure a sample of the screen (Tr. 25; 27;86). He returned to the plant on July 8, 1974 and secured the desired sample(Tr. 87; 104; 117). The citation was issued under the Area Director?s order onJuly 9, 1974, a lapse, in all, of 9 days from initial inspection to issuance. Ido not find that the Area Director, in this case, failed to act with reasonablepromptness, Secretary v. Chicago Bridge and Iron Company, 7th Circuit,April 22, 1975, No. 74?1214.??????????? However,for the reasons set out herein below, I am constrained to vacate the citation andthe Notification of Proposed Penalty issued to the respondent.??????????? Thefacts are, in the main, not disputed. Respondent, a Delaware corporation,maintains its principal office in Benton Harbor, Michigan. It is the largestproducer of household appliances, including clothes driers, air conditioners,refrigerators and oven appliances, and sells and distributes its manufacturedproducts throughout the United States. At its Marion, Ohio plant, the onewherein are located the screens in question, respondent daily employs some 1500persons (Tr. 145; 146?148). Overhead conveyors are used to move unfinishedparts from point to point within the plant and also to store parts and finishedproducts (Tr. 522). In order to protect employees working beneath these overheadconveyors from parts which may become dislodged in movement and fall therefrom,a guard screen, coextensive with the overhead conveyors and about 20 feet abovethe plant floor is suspended from the plant ceiling (Tr. 21; 122; 369; 485).The original guard screen, the installation of which was completed in 1960 or1961 (Tr. 459), consisted of 16-gauge expanded steel mesh in panels 4 feet by 8feet (Exhibit C?3) framed in angle iron which was either 1 inch by 1 inch by1\/8 inch or 1 1\/2 inch by 1 1\/2 inch by 1\/8 inch or 1 1\/4 inch by 1 1\/4 inch by1\/8 inch. The mesh was secured to the angle iron by welded metal clips atintervals of 15 or 20 inches (Tr. 159; 488?490; 493?494). These angle ironframes were bolted together on their 4-foot sides by means of three 3\/8-inchround bolts (Tr. 492?493). Some of the angle iron framed 4-foot by 8-foot meshpanels, are reinforced by a metal strap, 1 inch wide by 1\/8 inch in thickness,running across its center and fastened to the angle iron frame at the midpointof the 8-foot sides (Tr. 448). Some of these panels are reinforced by the sametype straps or 1\/8-inch by 1\/8-inch metal bars fastened at 2-foot intervals onthe 8-foot sides of the panels (Tr. 488). These panels are hung from theceiling of the plant in trapeze-type hangers made of welded angles of 2-inch by2-inch by 1\/4-inch or 4-inch by 4-inch by 3\/8-inch steel, affixed to thestructural steel of the building or in some places to the conveyor assembly(Tr. 488?489; 492).??????????? Beginningin November or December 1973, respondent commenced a program under which itbegan to replace the original mesh panels with panels constructed of heaviergauge metal mesh having spiral wire connections (Tr. 459).??????????? Atthe time of the inspection herein the guard screen covered 295,800 square feethung under 65,000 linear feet of conveyor and was suspended over about 36% ofthe total plant floor area (Tr. 435; 522). Some 25% of this screen guardconsisted of the original mesh panels having a center reinforcing strap, 42%consisted of the original mesh panels with reinforcing straps or bars on 2-footcenters and about 33% had been replaced by panels of the new type heavy wiremesh (Tr. 459; 452).??????????? Inaddition to its protective function, the guard screen served as a support forpaper which was placed thereon in order to catch oil or grease drippings fromparts which were in the process of completion and hanging on the movingoverhead conveyor (Tr. 179; 227; 256). This paper needed to be replaced aboutonce each month (Tr. 256).??????????? Themaintenance and repair of the overhead conveyor system, the maintenance andrepair of the guard screen, the removal of parts from the screen after they mayhave fallen from the conveyor and the placing and replacing of the paper tocatch oil and grease drippings, are included among the duties assigned tomaintenance employees (Tr. 155?156; 158; 173; 179; 209; 210; 212; 227; 252;256; 268?270; 280?281; 468?469). No evidence was introduced that employeesother than maintenance employees are required to go up on the guard screen inthe performance of their assigned duties.??????????? Therespondent maintains a force of 88-hourly maintenance personnel, 52 of whom areclassified as skilled (Tr. 457?458). The Superintendent of Maintenance andeleven maintenance workers appeared and gave testimony.[9] From their testimony itappears that during periods of high production, maintenance workers will be upon the guard screens in the performance of their duties for periods varyingfrom two hours each night (Tr. 279), to one hour each night (Tr. 228; 239), totwice a week for 1\/2 to one hour each time (Tr. 269) and an entire week inorder to replace the paper to catch drippings (Tr. 188). On average, theseemployees will spend from 15 to 30 man hours per week on the guard screen (Tr.458).??????????? It isnot disputed that the guard screen was intended to prevent objects, fallingfrom the overhead conveyor monorail, from striking employees working below (Tr.485), that it serves as a safety net and was neither designed nor intended as acatwalk or a working platform (Tr. 496?497; 502).??????????? Inaddition to the testimony of complainant?s expert that the guard screen wouldnot furnish adequate support to sustain the weight of a man working thereon(Tr. 309; 326) there is ample evidence to support a finding to the same effect.Maintenance employees were instructed to avoid stepping on the mesh proper andcautioned to place their feet on the angle iron frame supports whenever theywere required to work on the guard screen (Tr. 158?159; 174?175; 189; 199;205?206; 250?251; 273?274; 277; 474). Although the accident in which amaintenance employee fell through the guard screen and was killed, which was acausative factor in the inspection of July 1, 1974, was the only fatality inthe maintenance department in 20 years (Tr. 416), there is considerableevidence of maintenance employees slipping from the angle iron and having theirfeet go through the mesh screen (Tr. 62; 163; 176?177; 180; 181; 200; 219?220;230?231) and one incident in which the worker fell through to the floor below(Tr. 175).??????????? However,it must be borne in mind, that there is no evidence in the record which willsupport a finding that the guard screen, per se, is in any way a hazard orknown to be such in the industry in which the respondent is engaged. On thecontrary, there is credible evidence, which is not disputed, that the guardscreen in respondent?s plant is of the kind which is commonly used throughoutindustry generally (Tr. 483?485; 499; 521).??????????? Theproofs do, however, support a finding that the maintenance employees herein,when they are working on the guard screen as hereinbefore described, ?areengaged in work that cannot be done safely from the ground or from solidconstruction,?, see, 29 C.F.R. 1910.28(a)(1), (37 FR 22121, October 18, 1972).Furthermore, the evidence supports a finding that the respondent was aware thatthe work required of its maintenance personnel on the guard screen was fraughtwith danger, and, again using the language of the standard 29 C.F.R.1910.28(a)(1) supra, could not ?be done safely from solid construction.???????????? Thatmaintenance employees are employees who are covered by the Act is not open toquestion, Secretary v. Graysen Lumber Company, Inc., 3 OSAHRC 541(1973); Secretary v. Spencer Foods, Inc., 3 OSAHRC 348 (1973); Secretaryv. Pacific Gas & Electric Company, 16 OSAHRC 200 (1975).??????????? Thereis testimony by the compliance officer that there is no applicable standardwhich will apply to the circumstances of this case (Tr. 25?26; 80?85).Complainant in his brief (Br. p. 14) makes the same argument. I do not agree.??????????? Referenceherein has already been made to the standard at 29 C.F.R. 1910.28(a)(1). Thestandard at 29 C.F.R. 1910.21(f), under Subpart D, Definitions, provides:As used in ? 1910.28, unless the contextrequires otherwise, scaffolding terms shall have the meaning ascribed in thisparagraph.(37 FR 22107, October 18, 1972),?subsection 27 thereunder reads as follows:Scaffold. Any temporary elevated platformand its supporting structure used for supporting workmen or materials or both.(37 FR 22107, October 18, 1972).?The standard at 29 C.F.R. 1910.28(a)(1)provides:Scaffolds shall be furnished and erectedin accordance with this standard for persons engaged in work that cannot bedone safely from the ground or from solid construction, except that laddersused for such work shall conform to ? 1910.25 and ? 1910.26.(37 FR 22121, October 18, 1972).???????????? Thisstandard, at 29 C.F.R. 1910.28(p)(3)(ii), fixes minimum requirements forinterior hanging scaffolds and the planking to be used and it appears evidentthat the angle iron trapeze hangers supporting the framed mesh guard screensections, described herein above, could well have served as supports for thescaffold planking referred to therein, to wit:(ii) Planking 2 by 9 inches or 2 by 10inches, with maximum span 7 feet for heavy duty and 10 feet for light duty ormedium duty.(37 FR 22127, October 18, 1972)???????????? Asthe Occupational Safety and Health Review Commission in Secretary v. BethlehemSteel Corporation, OSAHRC Docket No. 2384, April 3, 1975, speaking of thestandard at 29 C.F.R. 1928.28(a)(1), said:By its terms, the cited standard mandatesthat work be performed from scaffolds when it cannot be safely performed fromthe ground or solid construction. It also mandates that scaffolds be erected inaccordance ?with this standard,? but it does not by its terms prescribeconstruction specifications for scaffolds. Accordingly, when cited alone it canonly require that work be performed from scaffolds if it is not safe to workfrom the ground or solid construction.?See also, Secretary v. Daniel Construction Company,10 OSAHRC 531 (1974).??????????? Ihold that the standard at 29 C.F.R. 1910.28(a)(1) is applicable and that thecharge under Section 654(a)(1) of the Act is not appropriate and I do not,therefore, reach the issue of whether the respondent herein, with actualknowledge of the existence of a hazard which was causing or likely to causedeath or serious physical harm, failed to take reasonable precautionary stepsto protect its employees from that hazard in violation of the said Section654(a)(1), Secretary v. Brisk Waterproofing Co., Inc., 3 OSAHRC 1132(1973); Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736(1974), Secretary v. California Stevedore and Ballast Company, 16 OSAHRC800 (1975).??????????? Goodcause therefore appearing and for the reasons expressed herein above, it isORDERED that the citation and Notice of Proposed Penalty issued to therespondent herein be and the same are hereby vacated.?DAVID H. HARRISJudge, OSAHRCDated: July 14, 1975Hyattsville, Maryland[1] 29 U.S.C. ?654(a)(1). The section provides that each employer ?. . . shall furnish to eachof his employees employment and a place of employment which are free fromrecognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.?[2] 29 U.S.C. ? 651et seq., hereinafter ?the Act.?[3] See alsoTranscript at 222?23 and 258?63, for additional supporting assertions elicitedby Whirlpool on its cross-examination of the Secretary?s witnesses.[4] 29 U.S.C. ?658(a) provides in pertinent part:Eachcitation shall be in writing and shall describe with particularity the natureof the violation, including a reference to the provision of the Act, standard,rule, regulation, or order alleged to have been violated.[5] See BarkerBrothers, Inc., 78 OSHRC 5\/E7, 6 BNA OSHC 1282, 1977?78 OSHD para. 22,488(No. 12964, 1978).[6] Whirlpool alsoargues there can be no finding the guard screen system was recognized as ahazard because the judge had found, in his earlier decision, that Whirlpool?sindustry did not recognize it as hazardous. We reject this argument. TheSecretary may show a hazard is recognized by proof either of recognition of thehazard within the employer?s industry or of actual recognition of the hazard bythe employer himself. United States Pipe and Foundry Company, 78 OSAHRC8\/D6, 6 BNA OSHC 1332, 1977?78 CCH OSHD para. 22,514 (No. 11739, 1978); H?30,Inc. 77 OSAHRC 156\/A2, 6 BNA OSHC 1715, 1977?78 CCH OSHD para. 22,050 (No.76?752, 1977). Here the latter proof exists. The judge properly determined thatthe hazard of working upon the mesh panels was recognized by Whirlpool as shownby its instructions for walking on the angle-irons, rather than on the mesh,and by the record of accidents on the mesh. Where the employer actuallyrecognizes the hazard, ? 5(a)(1) requires the implementation of any feasiblesteps to abate it, even if the employer?s industry does not also recognize thehazard.[7] We agree with thejudge that catwalks of ?-inch expanded metal grating would be infeasible.[8] See C. Kaufman,Inc., 78 OSHRC 3\/C1, 6 BNA OSHC 1295, 1977?78 CCH OSHD ? 22,481 (No. 14249,1978).[9] Nine maintenanceworkers, including their foreman, were called as witnesses by complainant. TheSuperintendent and two workers appeared at the instance of the respondent.”