David Neiss, d/b/a Neiss Engineering Company

Read the official release (oshrc.gov)

Plain-English summary

Neiss Engineering was cited for 12 nonserious conditions at a concrete apartment-building project, including ladder defects, unguarded floor openings and platforms, housekeeping, unsecured gas cylinders, and other guarding issues. The judge affirmed the violations and adjusted the proposed penalties, including increasing three fall-protection penalties from $40 to $120 each. The Commission found that those three conditions had low gravity because the record did not show a high probability of injury, substantial exposure time, or many exposed employees. It also considered the company's small size, cooperative attitude, and good abatement record. The Commission reduced the three increased penalties back to $40 each and otherwise affirmed the judge's decision, resulting in total penalties of $180.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1903.2; 29 C.F.R. § 1926.450(a)(2); 29 C.F.R. § 1926.450(a)(7); 29 C.F.R. § 1926.450(a)(9); 29 C.F.R. § 1926.450(b)(12); 29 C.F.R. § 1926.500(b)(2); 29 C.F.R. § 1926.25; 29 C.F.R. § 1926.350(a)(9); 29 C.F.R. § 1926.500(d)(1); 29 C.F.R. § 1926.500(b)(1); 29 C.F.R. § 1926.300(b)(2); 29 C.F.R. § 1926.500(e)(1)
• Outcome: All cited items were affirmed, but three fall-hazard penalties were reduced from $120 to $40 each, leaving total penalties of $180.
• Key point: Low gravity and limited exposure supported the Secretary's original $40 penalties for the three railing violations.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 2911

DAVID NEISS, D/B/A NEISS
ENGINEERING COMPANY,

���������������������������������������������
Respondent.

May 19, 1976

�

DECISION

BEFORE
BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN,
Commissioner:

A decision of Review Commission Judge John J. Morris dated
April 9, 1974, is before this Commission for review pursuant to 29 U.S.C. �
661(i). That decision, which is attached hereto as Appendix A, is affirmed
except insofar as it assessed a penalty of more than $40.00 for each of the
violations set forth in Items 6, 9, and 10 of the citation.

����������� The respondent is a relatively small
company which employs less than 20 employees. Although respondent had been
cited for violations on one prior occasion, it has demonstrated a cooperative
attitude and good abatement record. Items 6, 9, and 10 all involve a failure to
protect against fall hazards with standard railings. In determining his penalty
proposal, the complainant considered the gravity of each violation to be low.
We agree with this determination as the record fails to establish that there
was a height probability of the occurrence of injury to any of the respondent�s
employees or that a significant number of its employees were exposed to the
hazards for a substantial period of time. Considering these facts in
conjunction with the criteria enumerated in 29 U.S.C. � 661(i), we find that a
$40.00 penalty, as proposed by the complainant, is appropriate for each of the
aforementioned items.

Accordingly, the Judge�s decision is modified by substituting
a penalty of $40.00 for each of the penalties assessed by the Judge as to Items
6, 9, and 10 of the citation and, as so modified, the Judge�s decision is
affirmed.

FOR
THE COMMISSION:

�

William S. McLaughlin

Executive Secretary

Gloria W. White

Acting Executive Secretary

Dated:
May 19, 1976

BARNAKO,
Chairman, Concurring:

I concur with my colleague�s decision in this case.

The Secretary proposed a penalty of $40 each for items 6, 9,
and 10 of the citation. Judge Morris recommended an assessment of $120 for each
of these items. In recommending the assessment he relied on the Commission�s
decision in Dixie Electric, Inc. , 5 OSAHRC 201, BNA 1 OSHC 1418, CCH
O.S.H.D. para. 16,889 (1973). This matter is distinguishable.

In Dixie Electric , the Commission concluded that a $40
proposed penalty for failure to guard an open-sided floor was inadequate and
assessed a $200 penalty for the violation. The basis for that decision was a
finding that the gravity of the violation was relatively high and that
consequently a substantial penalty was necessary. Among other things, the
record in Dixie Electric indicated that a number of employees worked between 6
and 24 inches from the edge of an unguarded floor. The probability of a fall
was high.

In the instant case, however, the record is very different.
Respondent stipulated that its employees were exposed to the hazards involved,
but the record does not contain evidence indicating the likelihood of an
accident occurring or showing high gravity in any other manner. Accordingly,
the reason for assessing a substantial penalty in Dixie Electric is not
applicable to this case.

In addition, as my colleague points out, Respondent is a
relatively small company and has demonstrated a cooperative attitude.

�

CLEARY,
Commissioner, DISSENTING:

I dissent to the majority�s action modifying the
Administrative Law Judge�s decision. I would affirm his decision without
modification.

Commissioner Moran on his own motion directed this case for
review on the following issues:

(1) Does the record establish that employees of respondent
were exposed to the hazards created by the existence of the conditions alleged
by complainant to constitute a violation of 29 U.S.C. � 654(a)(2)?

(2) Did the Judge exceed the Commission�s authority by
assessing penalties in excess of the amount respondent would have had to pay,
had he not exercised his right to a hearing on complainant�s charges of
non-compliance with �� 1926.500(b)(1), 1926.500(b)(2) and 1926.500(d)(1) of
volume 29 of the Code of Federal Regulations?

As in Star Circle Wall Systems, Inc. , No. 3271, BNA 4
OSHC 1011, CCH OSHD para. 20,502 (1976), the Secretary has filed a brief that
does not take issue with the Judge�s disposition of the issues on review and
respondent has filed no brief. In Star Circle, the Commission said:

This
is significant because the order for review involves only matters decided
adversely to respondent. Also, exposure issues are the subject of several
pending Commission decisions that have been fully briefed. Under these
circumstances, we decline to rule upon the issues that have been raised sua
sponte.

That decision is controlling here, and accordingly I would
affirm the Administrative Law Judge�s decision.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 2911

DAVID NEISS, D/B/A NEISS
ENGINEERING COMPANY,

���������������������������������������������
Respondent.

FINAL
ORDER DATE: May 9, 1974

APPENDIX
A

DECISION AND ORDER

Appearances:

William J. Kilberg,
Solicitor of Labor T.A. Housh, Jr., Regional Solicitor Henry C. Mahlman,
Associate Regional Solicitor James H. Barkely, Trial Counsel of Denver,
Colorado for the Secretary of Labor.

Erick K. Furedy, Trial
Counsel of Denver, Colorado for the Respondent.

STATEMENT OF THE CASE

John
J. Morris, Judge, OSAHRC

This is a proceeding pursuant to Section 10 of the Occupational
Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act)
contesting certain Citations issued by the Complainant against the Respondent
under the authority vested in Complainant by Section 9(a) of that Act.

The Citations allege that Complainant inspected a workplace
under the ownership, operation or control of Respondent located at 50 Adams
Street, Denver, Colorado, and described as a concrete pier and platform
apartment building with curtain walls of precast concrete.

It is further alleged that at the above workplace, Respondent
violated Section 5(a)(2) of the Act by failing to comply with occupational
safety and health standards promulgated by Complainant pursuant to Section 6
thereof.

The contested Citation was issued on April 25, 1973, as the
result of an inspection on April 16, 1973, and it is alleged that the standards
violated were duly published in the Federal Register and subsequently
recodified in the Code of Federal Regulations as hereinafter noted. Abatement
was proposed as hereafter noted. Citation Number 2 alleges as follows:

Item Number

Standard or Regulation Allegedly Violated

Abatement Date

Description of Alleged Violation

Proposed Penalty

1

29 CFR 1903.2

May
4, 1973

The employer did fail to post the notice to
employees furnished by the Labor Dept. informing them of their rights under
the Act.

$50

2

29 CFR 1926.450(a)(2)

Upon receipt of
Citation

The ladder leading from the 2nd floor balcony to
the 3rd floor balcony on the outside had a branch knot defect in the side
rail.

$40

3

29 CFR 1926.450(a)(7)

Upon receipt of
Citation

The ladder leading from the 2nd floor balcony to
the 3rd floor balcony was not used on a pitch that was one-quarter of the
working length.

$40

4

29 CFR 1926.450(a)(9)

Upon receipt of Citation

The employer did fail to extend the side rails
of 5 ladders 36 inches above the landings.

$40

5

29 CFR 1926.450(b)(12)

Upon receipt of Citation

The job made ladders did not have the cleats
secured with 3�10d common wire nails or other fasteners of equivalent
strength.

$40

6

29 CFR 1926.500(b)(2)

May 4, 1973

Ladderway floor openings and platforms were not
guarded by standard railings and toeboards on all exposed sides except at
entrance to ladder openings.

$40

7

29 CFR 1926.25

May 4, 1973

Employer failed during the course of
construction to keep the work areas, passageways and stairs cleared of scrap
lumber with protruding nails and other debris.

$40

8

29 CFR 1926.350(a)(9)

Upon receipt of Citation

Employer did fail to secure compressed gas
cylinders in an upright position on the ground in front of the building.

None

9

29 CFR 1926.500(d)(1)

May 4, 1973

The open-sided floors more than 6 ft. above the
ground level were not guarded by standard railings on the 1st, 2nd and 3rd floors.

$40

10

29 CFR 1926.500(b)(1)

May 4, 1973

Floor openings were not guarded by standard
railings or covered as required on the 2nd and 3rd floors on the exposed
sides.

$40

11

29 CFR 1926.300(b)(2)

May 4, 1973

The belts of the compressor in the storage room
were not guarded from exposure to contact by employees.

None

12

29 CFR 1926.500(e)(1)

May 4, 1973

The stairs leading to the basement were not
equipped with standard stair railings or standard handrails.

None

All of the heretofore cited standards are set forth with
particularity in the Appendix of this decision.

After Respondent contested this enforcement action, and a
Complaint and an Answer having been filed by the parties, the case came on for
hearing in Denver, Colorado, on August 28, 1973. The transcript fails to
reflect whether the notice of the hearing was posted so a post-trial notice and
order was duly posted. No persons objected or desired to intervene in the
proceedings.

STATEMENT OF JURISDICTION

The parties have stipulated that the Occupational Safety and
Health Review Commission has jurisdiction (Tr. 4, 5, 8). Respondent does
business in the State of Colorado, uses the facilities of interstate commerce
including the U.S. mail system and telephone services (Tr. 7). Respondent further
has employees who were exposed to the hazards involved in this litigation (Tr.
6). Accordingly, the Occupational Safety and Health Review Commission has
jurisdiction of the subject matter of this litigation.

STATEMENT OF APPLICABLE LAW PERTAINING TO PENALTIES

The violations in this case are alleged non-serious
violations, wherein the proposed penalties do not exceed $50. The Review
Commission has, in past decisions, asserted that no monetary penalties for
non-serious violations should be assessed where the situation involves small,
low-level gravity violations. The rationale for these decisions is that the
assessment of a penalty in such circumstances does little to effectuate the
purposes of the Act. Secretary of Labor vs. General Meat Company , OSAHRC
Docket Number 250, et seq.

On the other hand, in the case of Secretary of Labor vs.
Hydroswift , OSAHRC Docket Number 591, et seq., the Review Commission held
that the assessment of small monetary penalties for non-serious violations
having a level of gravity other than low does effectuate the purposes of the
Act. Penalties serve to remind employers that their primary responsibility
under the Act is adherence to its protective mechanisms. Failure to impose
penalties relating to violations with high levels of gravity serves only to
restrain the Act�s effective operation and hinder its functions to reduce the
hazards of the workplace for all employees. See Secretary of Labor vs.
Osborn Apparel Manufacturing Company , OSAHRC Dockets Number 1868 and 1869.

A further line of case law is set forth in Secretary of
Labor vs. Dixie Electric, Incorporated , OSAHRC Docket Number 1345 (November
14, 1973). In Dixie Electric , the Review Commission held that the degree
of probability of injury was relatively high where Respondent�s employees were
exposed to the unguarded edge of an open-sided floor. Accordingly, the Review
Commission raised the $35 penalty of the trial judge to $200.

ISSUES PRESENTED

The initial legal issue presented by the parties is whether
or not a general contractor is responsible for conditions not created by him
and outside of his control (Tr. 6�7; Resp. Post-trial Brief).

The second issue presented is what penalty, if any, should be
assessed for the various violations involved herein (Tr. 6; Resp. Posttrial
Brief).

The third issue urged by Respondent is that he is entitled to
a lower category as to employees endangered by having the number reduced to his
own employees and each of the subcontractors assessed on the basis of their own
employees (Resp. Post-trial Brief).

STATEMENT OF THE EVIDENCE

Respondent admits that the violations alleged in the
Citation, Items 1 through 12, existed (Resp. Ex. A, Post-trial Brief; Tr. 5,
6).

As to the initial legal issue of responsibility of the
general contractor for conditions not created by him or outside of his control,
Respondent admits that some of his employees were exposed to the hazards
involved (Tr. 6, 47). According to the Compliance Officer, Respondent had
thirteen employees at the jobsite, located on the second, third and fourth
floors (Tr. 44, 45�48). Respondent�s evidence shows that he is engaged
primarily as a general contractor in the engineering and developing business
(Tr. 66, 78). His contract with the subcontractors states that the
subcontractors will comply with safety regulations (Tr. 67). His testimony
indicated that he had four employees of a total of 25 people on the jobsite
(Tr. 48, 49, 67�68). The main thrust of Respondent�s defense is that he has no
control over the subcontractors (Tr. 69�71, 85�86) or tradespeople (Tr. 77).
Further, several of the violations were caused by subcontractors (Tr. 45).

The Occupational Safety and Health Act of 1970 imposes
liability on an employer who has employees exposed to the involved hazards. The
parties herein stipulated that the Respondent did have some exposed employees
(Tr. 6, 47), and the uncontroverted evidence is that Respondent had employees
on the jobsite, notwithstanding that the estimates of the number of employees
varied between the Compliance Officer and the Respondent (Tr. 44, 47, 48,
67�68, 71). Having established exposure to his employees, it follows that
Respondent general contractor is responsible. It is not a defense to the
general contractor to establish that the condition in violation of the standard
was not created by him if the above factors are established. Further,
Respondent�s view that the conditions are �outside of his control� (Tr. 6�7)
seeks to ignore the contractual relationship between the general contractor and
the subcontractor (Tr. 67). The facts establish responsibility on the part of
the general contractor.

The third issue urged by Respondent is that Respondent should
be entitled to a lower category as to employees endangered by having the number
reduced to his own employees and each of the subcontractors assessed for their
employees. This view urged by Respondent is in no way contemplated within the
statutory structure of the Act. The liability of the general contractor has
been established if the circumstances in this case have been established as
enumerated above.

Respondent admits the existence of a state of facts
establishing each of the violations (Tr. 5�6; Resp. Ex. A, Post-trial Brief);
accordingly, it follows that each of the alleged violations should be affirmed.

Item 1 of the Citation is an alleged violation of the
standard regarding failure to post notice to employees informing them of their
rights under the Act. The proposed penalty was $50 (Tr. 39�40), dictated by the
compliance manual, and there were no adjustment factors considered (Tr. 40).
Respondent stipulated that this penalty was reasonable (Tr. 4, 5�6; Resp. Ex.
A, Post-trial Brief). Respondent defensively offers evidence and stipulations
that the poster was removed by unknown persons (Tr. 5�6, 68). It had been hung
by Respondent and his superintendent; he did not know when it had been removed,
but there had been vandalism on the jobsite (Tr. 69). The stipulation of the
parties is not necessarily binding on a Review Commission Judge, and the
stipulation that the proposed $50 penalty is reasonable is rejected.
Complainant�s compliance manual proposing a flat penalty of $50 for failure to
post constitutes an arbitrary determination contrary to the Act. Penalties
should be proposed and assessed on a fair and consistent basis, and they must
be arrived at by considering the criteria specified in Section 17(j) of the
Act. The evidence indicates that the employer did post the necessary OSHA form
but that it was removed by vandals. Respondent should not be held responsible
for the act of a third party in these circumstances. In view of the arbitrary
assessment, Respondent�s evidence of posting, and because of the relatively
remote effect of 29 CFR 1903.2 on the health and safety of employees, the
proposed civil penalty of $50 for Item 1 of the Citation should be vacated. A
penalty of �none� should be assessed.

In arriving at the adjusted penalty for Items 2 through 12,
Complainant considered the likelihood of injury, severity, and extent to which
the standards were allegedly violated and the number of employees exposed (Tr.
65; Compl. Ex. 1). The Compliance Officer did not allow a credit for good faith
because of prior inspections (Tr. 11) involving violations of a serious nature
(Tr. 11). Full credit was allowed for Respondent�s size (Tr. 11). As to
history, Respondent was given a 10% credit and nothing for good faith; this
evaluation was made on the basis of a single prior Citation involving similar
violations (Tr. 11, 42, 43, 53; Compl. Ex. 1). A 50% credit for abatement was
allowed (Tr. 11). The total credits of 20% as outlined above were considered as
to each of the hereinafter discussed violations (Tr. 11, 16).

If a Respondent has a prior history of violation, the
Compliance Officer reduces the prior history credit by half (Tr. 53). While
there were 105 alleged violations on the previous jobsite (Tr. 41), Respondent
corrected the violations (Tr. 43). In the instant case and at the time of the
initial inspection (Tr. 63), he was cooperative (Tr. 62), and he talked with the
subcontractors with the Compliance Officer, advising them of the items that had
to be corrected (Tr. 51). It is this Judge�s view that the Compliance Officer
failed, in effect, to give sufficient consideration to the good faith of
Respondent in that he deducted a percentage of the good faith credit as well as
a portion of the credit for history for a single prior Citation (Tr. 53). This
error permeates the various items of the Citation.

Item 2 of the Citation alleges that the ladder leading from
the second floor balcony to the third floor balcony (and used to gain access to
work above) had a branch-knot defect on the side rail (Citation; Tr. 9�10, 45,
54; Compl. Ex. 2). 29 CFR 1926.450(a)(2) prohibits the use of ladders with
faulty or defective construction. As to this violation, the Compliance Officer
considered the probability and severity of injury to be high to moderate. A
person might fall two stories if the ladder were to break (Tr. 9�10, 14�15).
The defective ladder was less than 15% of the ladders on the jobsite (Tr.
9�10). After considering the credits as outlined above, an adjusted penalty of
$40 was proposed.

The placement of this defective ladder across open space and
the possibility of a two-story fall (Tr. 9�10) place this factual situation within
the category of Hydroswift , cited supra . However, the proposed
civil penalty of $40 is excessive and should be vacated, and a penalty of $30
assessed in lieu thereof.

Item 3 of the Citation involves a ladder that was not used on
a pitch that was one-quarter of its working length (Citation; Tr. 14�15). An
adjusted penalty of $40 was proposed. If the ladder were to break, a person
would fall and require treatment from a doctor (Tr. 15). The violation here
indicates a low-level gravity situation within the doctrine of General Meat
Company , cited supra , and the proposed penalty of $40 should be
vacated.

Item 4 of the Citation involves side rails for a ladder that
did not extend 36 inches above the railing (Tr. 16). The Compliance Officer
considered that there was a low probability of severe injury (Tr. 16). Five
ladders (over 50% of those on the jobsite) were not so extended (Tr. 16�17).
The Compliance Officer recommended an adjusted penalty of $40 (Tr. 16�17).
Complainant�s Exhibit 3 depicts the violation in Item 4 of the Citation (Tr.
22, 26; Compl. Ex. 3). In view of the foregoing facts, the violation set forth
in Item 4 is controlled by the doctrine set forth in General Meat Company,
cited supra, and the proposed penalty of $40 should be vacated.

�

Item 5
of the Citation involves ladders made on the job that did not have cleats
secured with 3�10d wire nails or other fasteners of equivalent strength (Tr.
17). The Compliance Officer considered the probability of injury to be low. He
further believed, however, that if the cleats were to pull out, a person would
fall and require a doctor�s treatment (Tr. 17). There was no showing by the
Complainant that the job-made ladders were unsafe by virtue of not being
provided with the fasteners as provided in the standard. Lack of proof of such
a detail would indicate that the situation involves the doctrine of General
Meat Company , cited supra , and the proposed $40 penalty should be
vacated.

Item 6 of the Citation involves certain unguarded floor
openings and platforms and a violation of 29 CFR 1926.500(b)(2). Complainant�s
Exhibits 7, 8, and 9 depict floor openings (including the third floor) without
railings or covers (Tr. 23�24, 26, 28, 32; Compl. Ex. 8). The violation herein
falls within the Review Commission�s decisions as expressed in Secretary of
Labor vs. Dixie Electric, Incorporated , OSAHRC Docket Number 1345 (November
14, 1973). A penalty of $40 was proposed (Complaint; Notification of Proposed
Penalty). On the basis of Dixie Electric , cited supra , a civil penalty
of $120 is appropriate for the penalty of the violation of 29 CFR
1926.500(b)(2) in the circumstances herein.

Item 7 of the Citation involves a housekeeping violation,
alleging that Respondent failed to keep the work areas, passageways and stairs
clear of scrap lumber and other debris (Tr. 18). [Complainant�s Exhibits 4, 6
and 7 show the conditions alleged (Tr. 22�23, 26, 28, 31, 32).] The Compliance
Officer considered the likelihood of injury to be moderate and that a doctor
would be required if an injury did occur (Tr. 18). The severity was rated as
being low to moderate (Tr. 18). The extent to which the standard was violated
was considered high, as there were five different locations involved (Tr.
18�19).

It is this Judge�s belief that the factual situation in Item
7 involves relatively high gravity. From the photographic evidence it appears
that if a person were to fall, he could be injured by striking any of the
protruding nails or, in the alternative, he could step on any of the nails
which are clearly visible in the photographs. Accordingly, this situation is
ruled within the doctrine of Hydroswift , cited supra . However,
the penalty of $40 is excessive, and a penalty of $30 should be assessed in
lieu thereof.

Item 8 involves a failure to secure compressed gas cylinders
(Citation; Compl. Ex. 10; Tr. 26, 28). Complainant�s Exhibit 9 shows the
unsecured cylinders (Tr. 24, 28). There was a proposed civil penalty of �none�
(Tr. 60; Compl. Ex. 1). This proposed penalty is proper and should be affirmed.

Item 9 of the Citation involves a failure to guard with
standard railings the open-sided floors which were more than six feet above
ground level (Tr. 19, 24�29, 60�61; Compl. Ex. 11). On cross-examination, the
Compliance Officer admitted that he had not seen anyone going close to the edge
(Tr. 60�61); however, in view of the stipulation heretofore discussed that some
of Respondent�s employees were exposed, a violation is established. This
condition existed on three floors, and a person falling would no doubt be
injured; hence, the case falls within the doctrine of Dixie Electric ,
cited supra . The $40 civil penalty proposed is inadequate, and a penalty
of $120 should be assessed.

Item 10 of the Citation involves floor openings that were not
guarded by standard railings or covered at the second and third floor levels on
the exposed sides (Citation; Tr. 24). The reasoning of Dixie Electric ,
cited supra , is likewise applicable here. The proposed penalty of $40 is
inadequate, and a penalty of $120 should be assessed.

Item 11 of the Citation involves unguarded belts of a
compressor (Citation; Tr. 26�27, 28; Compl. Ex. 13). The compressor was not in
use but was available in the storage area (Tr. 35). The Compliance Officer
recommended an unjusted penalty of �none� (Tr. 60; Compl. Ex. 1). The proposed
penalty was properly evaluated, and the proposed penalty of �none� should be
affirmed.

Item 12 of the Citation involves stairs leading to the
basement which were not equipped with standard railings or hand rails
(Citation; Tr. 20). Complainant considered the various factors outlined above
in arriving at an adjusted penalty of �none� (Tr. 60; Compl. Ex 1). This
proposed penalty is proper, and the proposed penalty of �none� should be
affirmed.

FINDINGS OF FACT

1. Respondent is an individual doing business in the State of
   Colorado, using the facilities of interstate commerce (Tr. 7).

2. Respondent has employees who were exposed to the hazards
   involved in this litigation (Tr. 6).

3. Respondent admits that the violations existed in Items 1
   through 12 of Citation Number 2 (Resp. Ex. A, Post-Trial Brief; Tr. 5, 6).

4. The poster mentioned in Item 1 of the Citation was removed
   by unknown persons after it had been put up by Respondent and his
   superintendent (Tr. 5�6, 68, 69).

5. There had previously been some vandalism at the jobsite
   (Tr. 69).

6. In arriving at the adjusted penalties for the hereinafter
   enumerated violations, Complainant considered the likelihood of injury, the
   severity thereof, the extent to which the standard was violated, and the number
   of employees exposed (Tr. 65; Compl. Ex. 1).

7. In connection with Respondent�s history, the Compliance
   Officer gave a credit of 10% and nothing for good faith; this evaluation was
   based on a single prior Citation involving similar violations (Tr. 11, 42, 43,
   53; Compl. Ex. 1).

8. Item 2 of the Citation involved the use of a ladder with a
   branch knot defect on the side rail (Citation: Tr. 9�10, 45, 54; Compl. Ex. 2).

9. In connection with the violation mentioned in the
   preceding paragraph, a person might fall two stories if the ladder were to
   break (Tr. 9�10)

10. Item 3 of the Citation involved a ladder that was not
    used on a pitch that was one-quarter of its working length (Tr. 14�15).

11. If the ladder mentioned in the preceding paragraph were
    to break, a parson would fall and require treatment from a doctor (Tr. 15).

12. Item 4 of the citation involved side rails for a ladder
    that did not extend 36 inches above the railing (Tr. 16).

13. The violation mentioned in the preceding paragraph
    involved a low probability of severe injury (Tr. 16).

14. Item 5 of the Citation involved ladders that did not have
    cleats secured with three 10�d nails or other fasteners of equivalent strength
    (Tr. 17).

15. The violation mentioned in the preceding paragraph
    involved a low probability of injury (Tr. 17).

����������� 16. In connection with the violation
stated in Item 5 of the Citation, the evidence failed to establish that the
job-made ladders were unsafe (Totality of Record).

17. Item 6 of the Citation involved unguarded floor openings
    and platforms without railings or covers as high as the third floor (Tr. 23�24,
    26, 28, 32; Compl. Ex. 7, 8, 9).

�

18. Item 7 of the Citation involved a failure to keep work
    areas, passageways and stairs clear of scrap lumber and other debris (Tr. 18,
    22�23, 26, 28, 31, 32; Compl. Ex. 4, 6, 7).

19. With regard to the violation mentioned in the preceding
    paragraph, if a person were to fall, he could be injured by striking any of the
    protruding nails or he could step on them (Compl. Ex. 4, 6, 7).

20. Item 8 of the Citation involved a failure to secure
    compressed gas cylinders (Citation; Tr. 26, 28; Compl. Ex. 9, 10).

21. For the violation mentioned in the preceding paragraph,
    there was a proposed civil penalty of �none� (Tr. 60; Compl. Ex. 1).

22. Item 9 of the Citation involved a failure to guard with
    standard railings the open-sided floors more than six feet above ground level
    (Tr. 19, 60�61; Compl. Ex. 11).

23. Item 10 of the Citation involved unguarded floor openings
    at the second and third floor levels on the exposed side (Citation; Tr. 24).

24. Item 11 of the Citation involved unguarded belts of a
    compressor (Citation; Tr. 26�27, 28,; Compl. Ex. 13).

25. For the violation mentioned in the preceding paragraph,
    there was a proposed civil penalty of �none� (Tr. 60; Compl. Ex. 1).

26. Item 12 of the Citation involved stairs leading to the
    basement that were not equipped with standard railings or handrails (Citation;
    Tr. 20).

27. For the violation mentioned in the preceding paragraph, there
    was a proposed adjusted penalty of �none� (Tr. 60; Compl. Ex. 1).

CONCLUSIONS OF LAW

1. Respondent is, and was at all times relevant to the issues
   herein, engaged in a business affecting commerce within the meaning to Section
   3(3) of the Occupational Safety and Health Act of 1970 (Facts, 1).

2. Respondent is, and was at all times herein mentioned, an
   employer within the meaning of Section 3 (5) of the Act, subject to the
   provisions of Section 4(a) and 5(a) of the Act and the standards promulgated
   under Section 6 thereof (Facts, 1, 2).

3. Respondent violated the hereinafter enumerated standards:

Item 1
29 CFR 1903.2;

Item 2
29 CFR 1926.450(a)(2);

Item 3
29 CFR 1926.450(a)(7);

Item 4
29 CFR 1926.450(a)(9);

Item 5
29 CFR 1926.450(b)(12);

Item 6
29 CFR 1926.500(b)(2);

Item 7
29 CFR 1926.25;

Item 8
29 CFR 1926.350(a)(9);

Item 9
29 CFR 1926.500(d)(1);

Item
10 29 CFR 1926.500(b)(1);

Item
11 29 CFR 1926.300(b)(2);

Item
12 29 CFR 1926.500(e)(1);

(Facts,
3).

4. The proposed civil penalty of $50 for the violation of 29
   CFR 1903.2 should be vacated, and a proposed civil penalty of �none� should be
   assessed therefor (Facts, 4, 5).

5. The proposed civil penalty of $40 for the violation of 29
   CFR 1926.450(a)(2) should be vacated, and a civil penalty of $30 assessed in lieu
   thereof (Facts, 6, 7, 8, 9).

6. The proposed civil penalty of $40 for the violation of 29
   CFR 1926.450(a)(7) should be vacated, and a penalty of �none� should be
   assessed in lieu thereof (Facts, 10, 11).

7. The proposed civil penalty of $40 for the violation of 29
   CFR 1926.450(a)(9) should be vacated, and a civil penalty of �none� assessed in
   lieu thereof (Facts, 12, 13).

8. The proposed civil penalty of $40 for the violation of 29
   CFR 1926.450(b)(12) should be vacated, and a penalty of �none� assessed in lieu
   thereof (Facts, 14, 15, 16).

9. The proposed civil penalty of $40 for
   the violation of 29 CFR 1926.500(b)(2) should be vacated, and a civil penalty
   of $120 should be assessed in lieu thereof (Facts, 17).

10. The proposed civil penalty of $40 for the violation of 29
    CFR 1926.25 should be vacated, and a penalty of $30 should be assessed in lieu
    thereof (Facts, 18, 19).

11. The proposed civil penalty of �none� for the violation of
    29 CFR 1926.350(a)(9) is proper and should be affirmed (Facts, 20, 21).

12. The proposed civil penalty of $40 for the violation of 29
    CFR 1926.500(d)(1) should be vacated, and a penalty of $120 should be assessed
    in lieu thereof (Facts, 22).

13. The proposed civil penalty of $40 for the violation of 29
    CFR 1926.500(b)(1) should be vacated, and a civil penalty of $120 should be
    assessed in lieu thereof (Facts, 23).

14. The proposed penalty of �none� for the violation of 29
    CFR 1926.300(b)(2) is proper and should be affirmed (Facts, 24, 25).

15. The proposed civil penalty of �none� for the violation of
    29 CFR 1926.500(e)(1) is proper and should be affirmed (Facts, 26, 27).

ORDER

Based on the foregoing findings of fact and conclusions of
law, it is hereby ORDERED and ADJUDGED:

1. Citation Number 2, Items 1 through 12, for the alleged
   violation of the hereinafter enumerated standards:

29 CFR
1903.2;

29 CFR
1926.450(a)(2);

29 CFR
1926.450(a)(7);

29 CFR
1926.450(a)(9);

29 CFR
1926.450(b)(12);

29 CFR
1926.500(b)(2);

29 CFR
1926.25;

29 CFR
1926.350(a)(9);

29 CFR
1926.500(d)(1);

29 CFR
1926.500(b)(1);

29 CFR
1926.300(b)(2);

29 CFR
1926.500(e)(1);

is
affirmed.

2. The proposed civil penalty of $50 for the violation of 29
   CFR 1903.2, as set forth in Item 1, is vacated, and a penalty of �none� is
   assessed in lieu thereof.

����������� 3. The proposed civil penalty of $40
for the violation of 29 CFR 1926.450(a)(2), as set forth in Item 2, is vacated,
and a penalty of $30 assessed in lieu thereof.

4. The proposed civil penalty of $40 for the violation of 29
   CFR 1926.450(a)(7), as set forth in Item 3, is vacated, and a penalty of �none�
   is assessed in lieu thereof.

5. The proposed penalty of $40 for the violation of 29 CFR
   1926.450(a)(9), as set forth in Item 4, is vacated, and a penalty of �none� is
   assessed in lieu thereof.

6. The proposed civil penalty of $40 for the violation of 29
   CFR 1626.450(b)(12), as set forth in Item 5, is vacated, and a penalty of
   �none� is assessed in lieu thereof.

7. The proposed civil penalty of $40 for the violation of 29
   CFR 1926.500(b)(2), as set forth in Item 6, is vacated, and a penalty of $120
   is assessed in lieu thereof.

8. The proposed civil penalty of $40 for the violation of 29
   CFR 1926.25, as set forth in Item 7, is vacated, and a penalty of $30 is
   assessed in lieu thereof.

9. The proposed civil penalty of �none� for the violation of
   29 CFR 1926.350(a)(9), as set forth in Item 8, is proper and is affirmed.

10. The proposed civil penalty of $40 for the violation of 29
    CFR 1926.500(d)(1), as set forth in Item 9, is vacated, and a penalty of $120
    is assessed in lieu thereof.

11. The proposed penalty of $40 for the violation of 29 CFR
    1926.500(b)(1), as set forth in Item 10, is vacated, and a civil penalty of
    $120 is assessed in lieu thereof.

12. The proposed civil penalty of �none� for the violation of
    29 CFR 1926.300(b)(2), as set forth in Item 11, is proper and is affirmed.

13. The proposed civil penalty of �none� for the violation of
    29 CFR 1926.500(e)(1), as set forth in Item 12, is proper and is affirmed.

So
ORDERED in the City and County of Denver, Colorado.

�

John J.
Morris

Judge,
OSAHRC

April
3, 1974

APPENDIX

Citation
Number 2

Item
Number 1:

� 1903.2 Posting of notice; availability of Act, regulations
and applicable standards. (a) Each employer shall post and keep posted a notice
or notices, to be furnished by the Occupational Safety and Health
Administration, U.S. Department of Labor, informing employees of the
protections and obligations provided for in the Act, and that for assistance
and information, including copies of the Act and of specific safety and health standards,
employees should contact the employer or the nearest office of the Department
of Labor. Such notice or notices shall be posted by the employer in each
establishment in a conspicuous place or places where notices to employees are
customarily posted. Each employer shall take steps to insure that such notices
are not altered, defaced, or covered by other material.

Item
Number 2:

� 1926.450 Ladders. (a) General requirements. (2) The use of
ladders with broken or missing rungs or steps, broken or split side rails, or
other faulty or defective construction is prohibited. When ladders with such
defects are discovered, they shall be immediately withdrawn from service.
Inspection of metal ladders shall include checking for corrosion of interiors
of open end hollow rungs.

Item
Number 3:

� 1926.450 Ladders. (a) General requirements. (7) Portable
ladders shall be used at such a pitch that the horizontal distance from the top
support to the foot of the ladder is about one-quarter of the working length of
the ladder (the length along the ladder between the foot and the top support).
Ladders shall not be used in a horizontal position as platforms, runways, or
scaffolds.

Item
Number 4:

� 1926.450 Ladders. (a) General requirements. (9) The side
rails shall extend not less than 36 inches above the landing. When this is not
practical, grab rails, which provide a secure grip for an employee moving to or
from the point of access, shall be installed.

Item
Number 5:

� 1926.450 Ladders. (b) Job-made ladders. (12) Cleats shall
be inset into the edges of the side rails one-half inch, or filler blocks shall
be used on the rails between the cleats. The cleats shall be secured to each
rail with three 10d common wire nails or other fasteners of equivalent
strength. Cleats shall be uniformly spaced, 12 inches top-to-top.

Item
Number 6:

Subpart M�Floor and Wall Openings, and Stairways.

�
1926.500 Guardrails, handrails, and covers. (b) Guarding of floor openings and
floor holes. (2) Ladderway floor openings or platforms shall be guarded by
standard railings with standard toe boards on all exposed sides, except at
entrance to openings, with the passage through the railing either provided with
a swinging gate or so offset that a person cannot walk directly into the
opening.

Item
Number 7:

� 1926.25 Housekeeping. (a) During the course of
construction, alteration, or repairs, form and scrap lumber with protruding
nails, and all other debris, shall be kept cleared from work areas,
passageways, and stairs, in and around buildings or other structures. (b)
Combustible scrap and debris shall be removed at regular intervals during the
course of construction. Safe means shall be provided to facilitate such
removal. (c) Containers shall be provided for the collection and separation of
waste, trash, oily and used rags, and other refuse. Containers used for garbage
and other oily, flammable, or hazardous wastes, such as caustics, acids,
harmful dusts, etc., shall be equipped with covers. Garbage and other waste
shall be disposed of at frequent and regular intervals.

Item
Number 8:

� 1926.350 Gas welding and cutting. (a) Transporting, moving,
and storing compressed gas cylinders. (9) Compressed gas cylinders shall be
secured in an upright position at all times except, if necessary, for short
periods of time while cylinders are actually being hoisted or carried.

Item
Number 9:

� 1926.500 Guardrails, handrails, and covers. (d) Guarding of
open-sided floors, platforms, and runways. (1) Every open-sided floor or
platform 6 feet or more above adjacent floor or ground level shall be guarded
by a standard railing, or the equivalent, as specified in paragraph (f)(i) of
this section, on all open sides, except where there is entrance to a ramp,
stairway, or fixed ladder. The railing shall be provided with a standard toe
board wherever, beneath the open sides, persons can pass, or there is moving
machinery, or there is equipment with which falling materials could create a
hazard.

Item
Number 10:

� 1926.500 Guardrails, handrails, and covers. (b) Guarding of
floor openings and floor holes. (1) Floor openings shall be guarded by a
standard railing and toe boards or cover, as specified in paragraph (f) of this
section. In general, the railing shall be provided on all exposed sides, except
at entrances to stairways.

Item
Number 11:

Subpart I�Tools�Hand and Power.

�
1926.300 General requirements. (b) Guarding. (2) Belts, gears, shafts, pulleys,
sprockets, spindles, drums, fly wheels, chains or other reciprocating,
rotating, or moving parts of equipment shall be guarded if such parts are
exposed to contact by employees or otherwise create a hazard. Guarding shall
meet the requirements as set forth in American National Standards Institutes,
B15.1�1953 (R1958), Safety Code of Mechanical Power-Transmission Apparatus.

Item
Number 12:

� 1926.500 Guardrails, handrails, and covers. (e) Stairway
railings and guards. (1) Every flight of stairs having four or more risers
shall be equipped with standard stair railings or standard handrails as
specified below, the width of the stair to be measured clear of all
obstructions except handrails.