John H. Quinlan, d/b/a Quinlan Enterprises

Plain-English summary

Quinlan Enterprises was erecting steel for a Georgia retail building when OSHA observed employees installing roof decking more than 36 feet above the ground without fall protection. The Commission affirmed the serious fall-protection item because the steel-erection rules did not displace the general rule for exterior falls, and Quinlan did not prove infeasibility or greater hazard. It also affirmed a serious crane item because the required fire extinguisher was missing from the cab, even if it had recently been stolen. A damaged crane load chart was affirmed as other than serious, and the failure to have the written hazard-communication program immediately available was affirmed as de minimis. Penalties of $2,500 and $400 were assessed for the two serious items, totaling $2,900.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.550(a)(14)(i), 1926.59(e)(4), 1926.105(a), and 1926.550(a)(2).
• Outcome: Affirmed. Four reviewed items were affirmed, with $2,900 in total penalties for the two serious violations.
• Key point: A roof deck is not itself fall protection for employees working at its unguarded perimeter, and an infeasibility defense requires proof that alternative protections were also infeasible.

Full text (OSHRC public release)

                                     UNITED STATES OF AMERICA
        OCCUPATIONAL           SAFETY      AND HEALTH REVIEW COMMISSION
                                      One Lafayette Centre
                                1120 20th Street, N.W. - 9th Floor
                                   Washington, DC 200364419




                                             ..

SECRETARY OF LABOR, ..

              Complainant,

              v.                                       OSHRC Docket No. 92-0756

JOHN H. QUINL4N, d/b/a
QUINW ENTERPRISES,

              Respondent.



                                           DECISION

Before: WEISBERG, Chairman; FOULKE and MONTOYA Commissioners.
BY THE COMMISSION:
At issue is whether the judge erred in affirming 4 items alleging that John H. Quinlan,
doing business as Quinlan Enterprises (“Quinlan”), failed to comply with various provisions
of the construction standards at a construction project in Savannah, Georgia. The items were
for Quit&n’s alleged failure to: (1) have a fire extinguisher available in the cab of its crane;
(2) have a written hazard communication program available; (3) provide fall protection for
its employees exposed to falls greater than 25 feet; and (4) post a rated load capacity chart
in the cab of the crane. For the reasons that follow, we affirm the judge’s decision.
I. Issues
A.
Citation no. 1, item 2 alleged a serious violation of 29 C.F.R. 8 1926.550(a)(l4)(i), a
standard for cranes and derricks. The standard requires that “[a]n accessible
. fire extinguisher
. . . shall be available at all operator stations or cabs of equipment.” It is undisputed that
Quinlan did not have a fire extinguisher in the cab of the crane it used that day at the
worksite. The compliance officer testified that Quinlan’s foreman, who had operated the

                                                                           1995 OSHRC No. 27
                                             2

crane earlier that day, told him that there had been one inside the cab the day before or the
night before but that it “must have been stolen.” The Secretary cited Quinlan for a serious
violation of the standard, and proposed a penalty of $750. The judge found a serious
violation of the standard but assessed a penalty of $400.
We find no reason to disturb the judge’s finding. There is no basis for Quinlan’s
claims that the foreman did not have an opportunity to purchase a fire extinguisher or that
it should have been given at least one full day to obtain one. The cranes and derricks
standard requires that “[a]ny deficiencies shall be repaired, or defective parts replaced,
before continued use.” 29 C.F.R. 5 1926.550(a)(5).’
B.
The judge’s affirmance of citation no. 2, item 1, as de minimis rather than as other-
than-serious presents us with no real issue to resolve. We have held that an employer cannot
seek review of a finding of a de minimis violation because it carries no penalty assessment
or abatement requirement and cannot be used in future proceedings as evidence of a history
of previous violations. Blocksom and Co., 11 BNA OSHC 1255, 1261 n.15, 1983-84 CCH
OSHD ll 26,452, p. 33,599 n.15 (No. 76-1897, 1983). See also Super Excavators Inc., 15 BNA

OSHC 1313, 1315, 1991-93 CCH OSHD lI 29,498, p. 39,803 (No. 89-2253, 1991).
C.
Citation no. 1, item 3, alleged a serious violation of 29 C.F.R. 5 1926.105(a). The
standard provides that “[slafety nets shall be provided when workplaces are more than 25
feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds,
catch platforms, temporary floors, safety lines, or safety belts is impractical.” At the time of
the inspection, Quinlan’s foreman Reynolds and employee Clifton were installing corrugated
roof decking on the top of the 36=foot, 4-inch high tower. The compliance officer saw
Reynolds walking along the edge of the tower laying roof deck. The employees were not

’ We also find no support for Quinlan’s claim that this violation as well as the hazard
communication and fall protection violations were caused by unpreventable employee
misconduct. Quinlan does not even suggest that it met the Commission’s requirements for
the unpreventable employee misconduct test for any of these citations. Instead, it offers
comments on the merits of the test itself, which we decline to consider.
3

provided with any fall protection. The judge affirmed a serious violation of the standard and
assessed the proposed penalty of $2,500.
We find no reason to disturb the judge’s finding. The record is clear that the
Secretary established all the elements of a prima facie case: applicability, noncompliance,
employee exposure, and knowledge, and that Quinlan failed to rebut that showing. Quinlan’s
claim that the steel erection standards apply rather than section 1926.105(a) is without merit.
The steel erection standards in Subpart R do not provide exclusive fall protection
requirements for employees engaged in steel erection. The general fall protection standards
for the construction industry apply to conditions not addressed by Subpart R. Section
1926.105(a) applies to the conditions cited in this case, the hazard of a fall from the
perimeter to the outside of the building. Peterson &OS. Steel Erection Co., 16 BNA OSHC
1196,1198,1993 CCH OSHD ll 30,052, p. 41,298 (No. 90.2304,1993), afd, 26 F.3d 573 (5th
Cir. 1994). The Secretary established a prima facie case of noncompliance with
section 1926.105(a) by showing that Quinlan’s employees were subject to falls of twenty-five
feet or more and none of the safety devices listed in the standard were utilized. American
BdgelLashcon, JX, 16 BNA OSHC 1867,1868,1994 CCH OSHD II 30,484, p. 42,105 (No.
91=633,1994),petition for reviewjYed, No. 94-1557 (D.C. Cir. Aug. 15,1994). Quinlan’s claim
that the roof deck the employees were working on was a form of fall protection is misplaced.
A roof is not a temporary floor and does not satisfy the requirements of section 1926.105(a).
See State Sheet Metal Co., 16 BNA OSHC 1155,1158, 1993 CCH OSHD lI 30,042, p. 41,224
(No. 90-2894, 1993). Employee exposure is clearly shown and is not disputed by Quinlan.
The involvement in the violation of Quinlan’s foreman Reynolds, Clifton’s supervisor,
establishes a prima facie showing of knowledge.2 Jersey Steel Erectors, 16 BNA OSHC 1162,

2 Quinlan argues that “[allthough Reynolds held the title of foreman, he had no supervisory
authority” and notes that the compliance officer “never asked Reynolds what he did.”
However, Mr. Quinlan testified that Reynolds was Mr. Clifton’s supervisor and that Reynolds
“was in charge.” An employee who has been delegated authority over other employees, even
if only temporarily, is considered to be a supervisor for the purposes of imputing knowledge
to an employer. Tampa Shipyards Inc., 15 BNA OSHC 1533, 1537, 1991-93 CCH OSHD
lI 29,617, p. 40,101 (No. 86360, 1992)(consolidated).
1164, 1993 CCH OSHD ll30,041, p. 41,216 (No. 90-1307, 1993), affd without published
opinion, 19 F.3d 643 (3d Cir. 1994).
Quinlan also failed to establish either the greater hazard or infeasibility affirmative
defenses to the section 1926.105(a) citation. To establish the greater hazard affirmative
defense, the employer must prove that: (1) the hazards caused by complying with the
standard are greater than those encountered by not complying, (2) alternative means of
protecting employees were either used or were not available, and (3) application for a
variance under section 6(d) of the Occupational Safety and Health Act of 1970 (“the Act”),
29 U.S.C. 8 655(d) would be inappropriate. Peterson Bras., 16 BNA OSHC at 1204, 1993
CCH OSHD at p. 41,304. We do not need to reach Quinlan’s argument that the hazards
caused by complying with the standard are greater than those presented by not complying
because it failed to establish that alternative means of fall protection could not be safely
implemented. “Before an employer elects to ignore the requirements of a standard because
it believes that compliance creates a greater hazard, the employer must explore all possrble
alternatives and is not limited to those methods of protection listed in the standard.” State
Sheet Metal Co., 16 BNA OSHC at 1159, 1993 CCH OSHD at p. 41,225 (emphasis in
original). Quinlan also failed to indicate why application for a variance would be
inappropriate.
An employer who raises the affirmative defense of infeasibility must prove that: (1)
literal compliance with the requirements of the standard was infeasible under the
circumstances and (2) either an alternative method of protection was used or no alternative
means of protection was feasible. In its brief, Quinlan focuses on the use of safety nets for
fall protection, and claims that it is not feasible to erect the nets.3 However, Quinlan also
has the burden of showing that alternative forms of protection were used or that no
alternative form of protection was feasible, just as it must do to prove the greater hazard
affirmative defense. State Sheet Metal Co., 16 BNA OSHC at 1161, 1993 CCH OSHD at p.

3 Under the terms of section 1926.105(a), nets are the least-preferred means of protecting
employees. If one of the other methods specified can be used, it should be used. State Sheet
Metal Co., 16 BNA OSHC at 1161, 1993 CCH OSHD at p. 41,227.
5

41,227. Here, as we noted above, Quinlan did not show that alternative forms of protection
would have been infeasible and thus fails to establish the defense.
D.
Citation no. 2, item 2, alleged an other-than-serious violation of 29 C.F.R.
9 1926.550(a)(2). The standard requires as follows:
8 1926.550 Cranes and derricks.
0a General requirements.
(2). Rated load capacities! and recommended operating speeds, special hazard
warnings, or instruction, shall be conspicuously posted on all equipment.
Instructions or warnings shall be visible to the operator while he is at his
control station.
A large portion of the load capacity chart inside the cabin of the crane was tom and missing.
In affirming the item, the judge found that the tom away portion contained information
essential to the operation of the crane, such as allowable loads on the jibs, the pressure load
conversion table, crane service, and recommended hoist tackle loads. The Secretary did not
propose a penalty for this alleged violation, and the judge did not assess one.
We agree with the Judge that a violation has been shown. The crane was in service
and integral portions of the chart were missing, including information necessary to determine
the crane’s rated load capacities.4 For example, one portion missing from the load capacity
chart was a table titled “Recommended Hoist Tackle” that detailed how much weight must
be deducted from the maximum allowable loads when using different types of hook blocks,
hooks and slings.
II. Order
Neither Quinlan nor the Secretary have asked us to disturb the judge’s penalty
assessments, and the record evidence relating to the four statutory penalty criteria (gravity,

4 The compliance officer testified that the missing “without outriggers” portion of the chart
was not necessary at the time of the inspection because the crane had its outriggers
extended. Quinlan misinterprets this testimony to mean that the crane operator did not
require any of the missing information, including allowable loads on the jibs, pressure load
conversion table, crane service, and recommended hoist tackle loads. This misinterpretation
was due to the fact that in the testimony, the term “chart” was used both for the “maximum
allowable loads” portion of the load capacity chart as well as for the entire chart.
6

size, good faith and past history) establishes that they are appropriate. See 6 17(j) of the Act,
29 U.S.C. 0 666(j). Accordingly, we affirm a serious violation of 29 C.F.R.
5 1926SSO(a)( 14)( i) with a penalty of $400, a de minimik violation of 29 C.F.R.
5 1926.59(e)(4), a serious violation of 29 C.F.R. 0 1926.105(a) with a penalty of $2,500, and
an other-than-serious violation of 29 C.F.R. 0 1926.550(a)(2) with no penalty assessed.

                                                 Stuart E. Weisberg
                                                 Chairman




                                                 Commissioner




                                                 Velma Montoya
                                                 Commissioner
                                   UNITED    STATES OF AMERICA
         OCCUPATIONAL          SAFETY AND HEALTH REVIEW COMMISSION
                                     One Lafayette Centre
                               1120 20th Street, N.W. - 9th Floor
                                  Washington, DC 20036-3419

SECRETARY OF LABOR,

             Complainant,

   v.                                             Docket No. 92-0756
                                        .
                                        .

JOHN H. Q-9 d/b/a ..
QUINIAN ENTERPRISES, ..

             Respondent.




                            NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
April 19.1995.
ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WEIO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH TEtE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 8 660.

                                                  FOR THE COMMISSION

April 19. 1995
Date
Executive Secretary
Docket No. 92-0756

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Jaylynn K. Fortney, Esq.
Regional Solicitor
Office of the Solicitor, U. S. DOL
Suite 339
1371 Peachtree St., N.E.
Atlanta, GA 30367

Frank L. Kollman, Esquire
Kollman & Sheehan, P. A.
Sun Life Building
20 South Charles Street
Baltimore, MD 21201

Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHLNGTON, DC 20006-1246

                                                                          FAX :
                                                                          COM (202) 6344008
                                                                          t=% (202) 6344008

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-0756
JOHN H. QUINL&N DBA QUINLAN ENTERPRI
Respondent.

                NOTICE OF DOCKETING
          OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Re art in the above referenced case was

docketed with the Commission on Marc ii 24, 1993. The decision of the Judge
will become a final order of the- Commission on April 23, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
April 13, P993 in or&r to ermit sufkrent time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
halng questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE CO

Date: March 24, 1993 ’
DOCKET NO. 92-0756
NOTICE IS GIVEN TO THE FOL-LOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Ms. Bobbye D. Spears
Re ‘onal Solicitor
O&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

Frank L. Kollman, Es uire
Kollman & Sheehan 9 . A.
Sun Life Building, Eighth Floor
20 South Charles Street
Baltimore, MD 21201

James D. Burroughs
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00106212426:04
UNITED STAES OF:AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N-E., SUITE 240
ATLANTA, GEORGIA 30309-3119

PHONE: t/FAX:
ax4 (404) 3474197 COM (404) 347-m 13
fTs po4~ 3474197 m-s (4434) 347-0113

                                                           ..
                                                .          ..

SECRETARY OF LABOR,

                 Complainant,

                 v.                                                OSHRC Docket No. 92-756

JOHN H. QUINLAN, d/b/a
QUINLAN ENTERPRISES,

                 Respondent.

APPEARANCES:

         Leslie J. Rodriguez, Esquire                              Frank L. Kollman, Esquire
             Office of the Solicitor                                   Kollman & Sheehan
             U. S. Department of Labor                                 Baltimore, Maryland
             Atlanta, Georgia                                                For Respondent
                     For Complainant

Before: Administrative Law Judge James D. Burroughs

                                     DECISION AND ORDER


         John H. Quinlan, d/b/a Quinlan Enterprises             (Quinlan),   a steel erector, contests a

serious citation alleging violations of (1) $ 1926.550(a)(9), for failure to barricade the rear
of a rotating superstructure of a crane, (2) 5 1926.550(a)(14)(i), for failure to have a fire
extinguisher available in the cab of the crane, (3) 6 1926.105(a), for failure to provide safety
nets for workers when exposed to falls greater than 25 feet, and (4) 8 1926.1053(b)(8), for
failure to secure a ladder in an area where it was likely to get displaced. Quinlan also
contests an “other” than serious citation which alleges violations of (1) 5 1926.59(e)(4), for
not having a written hazard communication program available, and (2) 8 1926.550(a)(2), for
failure to conspicuously post a rated loading capacities chart on the crane.
Quinlan is a sole proprietorship with its principal place of business in Claxton,
Georgia. It is owned by John H. Quinlan. He is engaged in steel erection and was so
engaged on October 3, 1991, at 220 Eisenhower Drive, Savannah, Georgia. He was
responsible for erecting the steel and, along with the general contractors and workers from
other trades, was constructing a Circuit City store (Tr. 9, 11-12, 28, 30, 42-43, 68-69, 91,
94-95, 111-l 12, 128-129).
While returning from lunch on October 3, 1991, Compliance Officer David Baker
observed employees working on the roof of a tower of the Circuit City store’ under
construction. The employees were approximately 36 feet high and were provided no fall
protection. Baker saw a crane lifting roof deck material to a person on the roof (Exh. C-6;
Tr. 18, 29, 60-61). After his observations, Baker informed his supervisor, who promptly
assigned him to conduct an inspection (Tr. 8, 17, 27). He arrived at the site around
2:35 p.m. (Tr. 8). He contacted Connie Turner, superintendent of the primary contractor
(Tr. 9). He held an opening conference with Mike Reynolds, who held himself out to be a
supervisor for Quinlan. Compliance Officer Baker advised Reynolds that he was there to
inspect Quinlan due to its lack of providing fall protection. There were two Quinlan
employees on the site: (1) Mike Reynolds and (2) Ken Clifton. Upon Baker’s request,
Reynolds ordered Clifton from the roof. Reynolds accompanied Baker on the walk-around
inspection.
Reynolds was a leadman or working foreman (Tr. 111). He had no authority to hire
or fire employees. John Quinlan was the only person who could hire or fire employees (Tr.
113) .

’ The site of the store is near where Baker resides.
The Inspection Was Consensual

   Quinlan contends that Baker exceeded the scope of his referral inspection.            Quinlan

suspects that the supervisor limited the inspection to fall protection and states that Reynolds
did not consent to a full inspection of the site. It is undisputed that Baker had authority to
inspect the site. He merely informed Reynolds the condition that led to the inspection. The
fact that he saw employees working on a roof tower was a basis for an inspection of the site
and was not a limitation on the inspection.
Quinlan does not pursue the issue with vigor. He makes the following statement in
his brief: “Reynolds apparently consented to the scope of the inspection as represented to
him by the Compliance Officer.” Quinlan recognizes that the evidence establishes that the
inspection was consensual. At the same time, a footnote to the statement insists that any
allegations beyond fall protection were outside the scope of Baker’s authorization.
Baker informed Reynolds why he was at the site. No objection was voiced by
Reynolds challenging the scope of the inspection. Reynolds accompanied Baker on the
walk-around inspection. He never objected or informed Baker that he had to obtain a
warrant. The inspection was consensual. See Adams Steel Erection, Inc., 13 BNA OSHC
1073, 1076, 1987 CCH OSHD lI 27,815 (No. 77-3804, 1987).

                                          The Allegations

                                          Burden of Proof


   In order to establish a violation of the standard, the Secretary has the burden to show

by a preponderance of the evidence that (1) the standard applies to the cited conditions,
(2) its terms were not met, (3) employees had access to the violative conditions, and (4) the
employer knew or could have known of the violative condition with the exercise of
reasonable diligence. Omet Corporation, 14 BNA OSHC 2134, 2135, 1991 CCH OSHD
ll 29,254 (No. 85-531, 1991).
Item 1 - Alleged Violation of (j 1926.55O(a)(9\

   The Secretary has charged Quinlan with a violation of 0 1926.550(a)(9) because the

rotating superstructure of the crane was not barricaded. The standard states:
(9) Accessible areas within the swing radius of the rear of the rotating
superstructure of the crane, either permanently or temporarily mounted, shall
be barricaded in such a manner as to prevent an employee from being struck
or crushed by the crane.

While the crane was in operation, the accessible area within the swing radius of the rear of
the rotating superstructure was not barricaded (Exh. C-2; Tr. 13,28). Quinlan requests that
the allegations be dismissed on the belief that the Secretary failed to prove employee
exposure.
Quinlan had two employees at the site. Reynolds was operating the crane, and
Clifton was on the roof unloading materials lifted by the crane (Tr. 29-30). The citation and
complaint make reference to employees as being exposed to the hazard. Quinlan has
construed this as referring to his employees. There was no employee of Quinlan exposed
to the hazard.
There were employees of other contractors on the site. Baker, having been unable
to show exposure to Quinlan employees, made reference to the fact that other employees
were at the site. These workers included masons and persons performing framing operations
inside the building. Baker saw the individuals pass the crane to bring materials inside the
building (Tr. 42-43).
Quinlan points out that neither the citation nor the complaint makes reference to the
fact that employees of other contractors were exposed to the hazard (Tr. 30-31). The
citation and complaint make reference to employees without stating whose employees were
exposed. Quinlan has construed the description as referring only to his employees. Quinlan
argues that there is no evidence to support the conclusion that any employee was exposed.
This argument is based on the fact that Baker assumed that the employees were employed
by other contractors. There is no merit to Quinlan’s argument. Under the circumstances,
Baker was correct in assuming that the individuals he observed were employees at the site.

                                              4

The employees would not be working at the site unless they were employed by one of the
contractors. It is highly unlikely they would trespass on the job and perform their services
for free.
Quinlan alleges that he has been prejudiced by the reference to employees of other
contractors since the citation and complaint never alleged that non-Quinlan employees were
exposed to the hazard. He opposes any amendment of the complaint to allege exposure of
employees of other contractors. Quinlan has not had an opportunity to interview employees
of other contractors which might have been exposed to the rotating superstructure.
The Secretary has simply made the allegation that the employees of the contractors
were exposed. The extent and nature of exposure have not been established. Baker did not
testify in terms of their distance from the rotating superstructure of the crane. The standard
speaks in terms of swing radius of the rear of the crane. Baker does not say that he
observed the employees within this area. The standard applies to “accessible areas within
the radius.” The testimony of Baker merely states that laborers “were passing by and near
the crane.” He does not state that they were passing the crane within the swing radius of
the rear (Tr. 42).
The evidence fails to establish how close the employees were to the crane. It is not
possible to make a determination as to whether “other employees” were within the
accessible area of the swing radius. The use of nebulous terminology fails to establish the
nature of the exposure. Compliance personnel should testify as to distance in terms of feet
or inches. The use of such words as Yn the vicinity of’ or “near” are inadequate to show
that an employee was within the accessible area of the swing radius. The issue of exposure
must be determined by the Commission on facts as developed by the Secretary. The facts
have not been sufficiently developed to make a proper determination.
The allegation is vacated.

                    Item 2 - Alleged Violation of 8 1926SSO(a)(14)(iJ


    The Secretary alleges that Quinlan failed to have a fire extinguisher available in the

cab of the crane. Section 1926550(a)(14)(i) provides as follows:

                                               5
     (14) Fuel tank filler pipe shall be located in such a position, or protected in
     such manner, as to not allow spill or overflow to run onto the engine, exhaust,
     or electrical equipment of any machine being fueled.

               (i) An accessible fire extinguisher of 5BC rating, or higher,
               shall be available at all operator stations or cabs of equipment.

     When Baker passed by the operator’s cab of the crane, he noticed that the load chart

was tom. He looked inside and noticed that the fire extinguisher holder was empty (Tr. 29,
45,48-49). Reynolds stated that there was not a fire extinguisher anywhere on the crane and
that the fire extinguisher had been stolen during the night.
Quinlan argues that the evidence presented is too confusing as to what the
compliance officer found. If there is any confusion, it exists only in the mind of Quinlan.
Baker was clear as to what he observed. Quinlan asserts that it is not clear whether the
compliance officer looked for the fire extinguisher or whether it was indeed in the crane.
John Quinlan stated that there is evidence that the fire extinguisher was stolen the night
before, and this made it impossible for Quinlan to be in compliance with the standard. He
asked that the citation be vacated because of this fact. The only evidence is the statement
by John Quinlan that the fire extinguisher was stolen.
The standard requires that an accessible fire extinguisher be available at the cab of
the crane. Quinlan contends that a fire extinguisher had been in the cab of the crane since
the job began (Tr. 124). John Quinlan states that he purchased the fire extinguisher and
personally placed it inside the cab (Tr. 124). He contends that the extinguisher had been
stolen the day before the inspection and had not been replaced by Reynolds (Tr. 45).
Quinlan states that Reynolds had the authority to purchase and replace the extinguisher.
The fire extinguisher was not in the cab. The bracket holding the fire extinguisher
was empty. Reynolds informed Baker that there was not an extinguisher on the crane and
that it had been stolen during the night. This is an assumption on the part of Reynolds.
Quinlan did not establish when the extinguisher was last observed by Reynolds. The
standard requires that a fire extinguisher “shall be available.” It was not made available to
Baker.
The allegation is affirmed.

                        Item 3 - Alleged Violation of d 1926.105(a)


      Quinlan    employees   were working    on the roof.     The height of the roof was

approximately 36 feet 4 inches above the ground. No form of protection was provided. The
Secretary alleges that Quinlan was in violation of 8 1926.105(a), which provides:
(a) Safety nets shall be provided when workplaces are more than 25 feet
above the ground or water surface, or other surfaces where the use of ladders,
scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
impractical.

The Secretary states that the standard was violated as a result of the following undisputed
facts: None of the safety devices listed in the standard were in use at the workplace; two
employees were exposed to falls from a height of more than 36 feet above the ground; such
a fall could result in serious injury; and Quinlan had knowledge of the violative condition
(Tr. 54, 56). Quinlan argues that (1) 0 1926.105(a) is preempted by 0 1926.750(b) of the
steel erection standards, (2) the roof was a temporary floor, (3) compliance was infeasible,
both technically and economically, and (4) compliance would have interfered with the work
being performed.
The two Quinlan employees were at the site laying corrugated decking on the roof
tower at a height of 36 feet 4 inches (Tr. 56). Baker did not see any catch platforms or
safety lines. He did not consider the decking to be a temporary floor. He observed that
Reynolds was wearing a safety belt, but the lanyard was hooked onto the belt and had tools
hung on it (Exh. C-7; Tr. 59-60). Reynolds and Clifton were not wearing any fall protection.
They exited the roof tower by a scaffold onto an I-beam, which they walked across to a
ladder. They descended the ladder to the ground.
Quinlan submits that 5 1926.105(a) is preempted by $ 1926.750(b) of the steel
erection standard since its work operation concerns steel erection. The hazard presented
by work on the roof involves the possibility of an exterior fall to the ground. In Bratton
Corp., 14 BNA OSHC 1893,199O CCH OSHD ll 29,152 (No. 83-132,1990), the Commission
rejected such a defense where the hazard involved an exterior fall. In so deciding, it
overruled previous Commission decisions. It stated (14 BNA OSHC at 1896):
We agree with the various appellate court decisions cited above that have
drawn a distinction between interior and exterior fall hazards and hold that
the steel erection standards in Subpart R do not preempt application of the
general construction standards to steel erection work “where general standards
provide meaningful protection to employees beyond the protection afforded
by the steel erection standards . . . .” wzlliams Enteprkes, Inc., 11 BNA
OSHC 1410,1416,1983-84 CCH OSHD Ti26,542 p. 33,877 (No. 790843,1983),
afjod in pertinent part, 744 F.2d 170 [ll OSHC 22411 (D. C. Cir. 1984).

Steel erection standards apply to interior falls and not to exterior falls. Since this case
involves exterior falls, the steel erection standards do not preclude a citation under
5 1926.105(a).
Quinlan seeks dismissal of the allegation based on the decisions of Judge James P.
O’Connell in Nilsen-Smith Roofing and Sheet Metal Co., 8 OSHC 1420, 1980 CCH OSHD
ll 24,242 (No. 77-2735, 1980), and Nil&on-SmithRoofing and Sheet Metal Co., 6 BNA OSHC
1435, 1978 CCH OSHD li 22,591 (No. 16142, 1978). In both cases, Judge O’Connell held
that 3 1926.105(a) does not apply where the employees in question were standing on a
partially completed metal deck, including roof deck. He found that the deck constituted a
temporary floor within the meaning of 8 1926.105(a). Quinlan submits that 8 1926.105(a)
is inapplicable to the facts of this case because the roof being installed by its employees
served as a “temporary floor.” Judge O’Connell vacated each citation primarily on the basis
that the area where the employees were installing metal decking served as a temporary floor,
rendering 8 1926.105(a) inapplicable. Nikon-Smith, supa. Subsequent to his decision in
those cases, Judge O’Connell’s opinions were rejected by the Commission.
In Diamond Roofing Co., Inc., 8 BNA OSHC 1080,1084,1980 CCH OSHD Ti24,274
(No. 76-3653, 1980) (“Diamond”), the Commission “rejected the argument that an
unguarded temporary floor from which employees are working is one of the alternative
safety devices contemplated by 3 1926.105(a) and that a violation . . . cannot be found if
employees are working from this type of surface.” The Commission held in Diamond that
“[i]f the unguarded perimeter of a temporary floor itself gives rise to a fall hazard, it would
be anomalous to conclude that the temporary floor constitutes an adequate method of fall
protection.” Id. See also Universal Roofing & Sheet Metal Co., Inc., 8 BNA OSHC 1453,
1980 CCH OSHD li 24,503 (No. 77-1756, 1980); Midwest Steel Erection, Inc., 8 BNA OSHC
1538, 1980 CCH OSHD ll24,525 (No. 76-3880, 1980).
The fifth circuit recently embraced the Commission’s reasoning on this issue in
Corbesco, Inc. v. Dole, 926 F.2d 422 [14 BNA OSHC 21161 (5th Cir. 1991) (“Corbesco”). In
Coibesco, the court wrestled with its previous decision on this issue in Brennan v. OS’RC,

488 F.2d 337 [l BNA OSHC 14291 (5th Cir. 1973) (“Brennan”). In Brennan, the court held
that the term “impractical,” as used in 0 1926.105(a), was not a precise enough term to put
an employer on notice that the use of a temporary floor cannot be considered an acceptable
substitute for the use of a safety net. Id. at 338.
The court in Corbesco did not dispute this finding in Brennan with regard to the
imprecise nature of the language in 0 1926.105(a). 926 F.2d at 428. The court did note that
since the Brennan decision, several Commission decisions have interpreted 8 1926.105(a) to
require the use of a safety net in situations where employees are working near the edge of
a flat roof that is more than 25 feet above ground; in those cases, the Commission held that
the roof cannot serve as a temporary floor and substitute for the use of a safety net. On the
basis of these decisions, the court concluded that the employer in Corbesco was faced with
a different situation than the employer that confronted Brennan because, although “the
wording of the regulation remains imprecise, the Commission has now elucidated its
meaning.” Once it was determined that the employer in Corbesco had notice of its duties
under 8 1926.105(a), the court went on to hold that “the purpose of the safety devices listed
in the regulation is to provide fall protection, and a roof cannot provide fall protection if
workers must operate along the perimeter.” Id. See also Brock v. Williams Enteps. of Ga.,
Inc., 832 F.2d 567 [13 BNA OSHC 14891 (11th Cir. 1987). The logic of this rationale cannot

be denied. The tower roof does not constitute a temporary floor for the purposes of
5 1926.105(a).
“[Tlhe Commission has frequently held that the regulation requires an employer to
furnish either a safety net or one of the other enumerated safety devices if its employees are
working near the perimeter of a flat roof more than twenty-five feet above the
ground . . . .” Corbesco Cop., 926 F.2d at 428 (5th Cir. 1991). Quinlan alleges technical
and economic infeasibility as an affirmative defense. Quinlan bears the burden to establish
infeasibility of complying with a specific standard. Cleveland Consolidated, Inc. v. OSHRC,

649 F.2d 1160,1165 (5th Cir. 1981); Ace Sheeting&Repair Co. v. OSHRC, 555 F.2d 439,441
(5th Cir. 1977). It contends that the evidence supports its position that nets could not be
erected on the job. In the event nets can be erected, Quinlan expresses the view that
employees would be exposed to greater hazards erecting them. It alludes to the fact that
it only took two hours to lay the deck but it would take 25 or more hours to erect the nets,
assuming it could be done.
James L. Willson testified as an expert witness for Quinlan. He indicated that it was
impossible to provide fall protection 100 percent of the time (Tr. 142). Willson expressed
the opinion that it was not practical or feasible to tie off while laying roof deck. The basis
for this opinion is that employees are, in essence, working from a platform. He argues that
cables on the floor will present a tripping hazard. He regards the deck as a secured floor
which makes it unnecessary to provide fall protection. In his opinion, it was not feasible to
erect nets at the Circuit City jobsite (Tr. 144). There would be more exposure erecting the
nets than there would be in installing the roof (Tr. 146). The point is made that it would
take approximately two hours to erect the roof deck (Tr. lOl), while it would take 25 hours
to erect nets (Tr. 146-147). Quinlan testified that safety nets could not be obtained in
Savannah (Tr. 132) and that the decking itself was a form of fall protection (Tr. 99, 130,
144) .
Willson conceded on cross-examination that it was possible to erect a scaffold around
the entire roof tower. He further conceded that it was possible to erect posts around the
four comers of the tower to which a perimeter cable could be attached and that he had seen
such perimeter cables around similar towers (Tr. 149.150,168-169). The Secretary’s rebuttal
expert, G. T. Breezley, testified that during installation of the roof deck, safety lines or safety

2 James L. Willson is vice-president of operations of L. R. Willson Co. He is in charge of field and safety
operations. L. R. Willson Co. is a large steel erector. James Willson has worked for more than thirty years
as a steel erector.

                                                10

belt systems have been seen on construction sites where brackets or welded brackets and
posts are installed close to, or on the outside of the beam. Cables are then installed all the
way around. Employees may tie off their lanyards to these cables and protect themselves
against falls (Tr. 160-161). Breezley further testified that it was practical to erect a scaffold
around the roof tower without any problems (Tr. 166). According to Breezley, the scaffold
reflected in Exhibits C-6 to C-10 could have been extended around the perimeter of the roof
tower. It would be a continuation of the deck surface from which guardrails on the outside
could readily be erected (Tr. 167, 170-171).
Quinlan’s argument as to technological infeasibility is rejected. Quinlan makes the
following statement concerning economic feasibility: “It costs . . . a mere 75 to 80 dollars
in time and materials to erect the roof deck, which protected the employees against falls.
It would cost $7,000 or more to erect nets, which is totally out of line with reasonable costs.
Adding to that the cost of testing, engineering studies, etc., there can be no other conclusion
than that nets are economically infeasible.”
In order to establish this defense, Quinlan “must demonstrate both that it is extremely
costly for [it] to comply with the Secretary’s order and that [it] cannot absorb this cost.”
Faultless Div., B&s & LaughZin Indus., Inc., 674 F.2d 1177, 1190 [10 BNA OSHC 14811 (7th

Cir. 1982). Quinlan has failed to meet that burden. It has failed to show how these costs
might detrimentally affect business and its inability to absorb the costs.
Quinlan sought to show that industry practice does not require safety nets under the
conditions observed by Compliance Officer Baker (Tr. 104, 132). The seventh circuit
specifically rejected this argument, stating that “industry practice should not be considered
when construing the regulation before us because the standard for employer conduct is quite
specific and essentially requires no such construction.” Faultless Division, supra, 674 F.2d
1187.
The allegation is affirmed.

                                               11
                   Item 4 - Alleged Violation of 5 1926.1053(b)(8)


   The 16.foot ladder used by Reynolds and Clifton to gain access to and from the roof

tower was unsecured and unbarricaded. Quinlan is charged with a violation of
0 1926.1053(b)(S), which provides:
(8) Ladders placed in any location where they can be displaced by workplace
activities or traffic, such as in passageways, doorways, or driveways, shall be
secured to prevent accidental displacement, or a barricade shall be used to
keep the activities or traffic away from the ladder.

   Quinlan does not argue that the ladder was not secured or barricaded.                 It places

emphasis on the words “workplace activities or traffic” and notes that there is no evidence
to establish that the area in which the ladder was located was an area of sufficient traffic
that mandated that the ladder had to be secured. The evidence established that it was not
necessary for any individual to come within 10 feet of the ladder, except Quinlan employees.
The ladder was protected from one direction by a leg supporting the roof tower.
The base of the ladder was at ground level. The top of the ladder was leaning
against the top I-beam. The location of the ladder was under the tower, which was the main
entrance into the store. The dimensions of the tower at ground level and the open space
at the front of the store were quite large. The front of the store was open space in which
the entrance and exit doors were to be installed (Exhs. C-6, C-11). The ladder was located
in an isolated comer of the tower structure which was protected on one side by two steel
beams containing cross bars (Exh. C-6). Reynolds and Clifton used the ladder. Baker
observed laborers passing through the area to gain access to the building (Tr. 67).
Workers were completing masonry and framing work in the vicinity of the ladder and
were carrying aluminum studs and drywall into the building (Tr. 67-69, 91-95). The
Secretary finds this fact sufficient to ebiablish that accidental displacement of the ladder was
a possibility, which she contends satisfies her burden of proof.
The ladder was in an isolated position. While laborers may have been seen entering
the building under the tower roof, it was a large area and there is no evidence that the
ladder could be accidentally displaced by workplace activities or traffic. The area was not

                                             12

constricted. The standard applies when a ladder is in a location that can be displaced by
work activities OI traffic. The location of the ladder has not been shown to be subject to
work activities or traffic. There is no indication that any employees approached within 10
feet of the ladder.
The allegation is vacated.

                                       Classification of Violations


     The Secretary submits that the violations were serious within the meaning of section

17(k) of the Act. In order to prove a serious violation, the Secretary must show that there
is a substantial probability that death or serious physical harm could result from the
condition in question. The Secretary need not prove that an accident is probable. It is
sufficient if an accident is possible and the probable result would be serious injury or death.
Brown & Root, Inc., Power Plant Division, 8 BNA OSHC 1055, 1980 CCH OSHD ll 24,275
(No. 76-3942, 1980). The Secretary must also establish that the employer knew or with the
exercise of reasonable diligence should have known of the existence of the violation. The
knowledge element is directed to the physical conditions which constitute a violation.
Southwestern Acoustics & Specialty, Inc., 5 BNA OSHC 1091, 1977-78 CCH OSHD ll 21,582

(No. 12174, 1977).
The failure to have a fire extinguisher in the cab, as required by the standard,
exposed the operator to burns and possible loss of control of the crane. This situation could
lead to fractures, concussions, or even death to workers exposed to the load.
The failure to provide safety nets exposed employees to a fall in excess of 36 feet.
A fall from this distance would result in death or serious physical injury. The ladder was 16
feet in height, and employees falling off would have suffered fractures, concussions, or even
death. The violations are determined to be serious under the Act.

                                                    13
                                          Citation No. 2

                                       “Other” Than Serious

                        Item 1 - Alleged Violation of 8 1926.59(e)(4)


    Quinlan had a hazard communication               program (Tr. 115). He failed to produce a

copy of the program during the inspection. Allegedly, it had been thrown away due to rain
damage (Tr. 71, 80). The Secretary asserts Quinlan was in violation of 5 1926.59(e)(4),
which provides:
(4) The employer shall make the written hazard communication program
available, upon request, to employees, their designated representatives, the
Assistant Secretary and the Director, in accordance with the requirements of
29 C.F.R. 1910.20(e).3

    Quinlan argues that no one was denied access to the written hazard communication

program. A copy was furnished to the compliance officer by Quinlan upon request
subsequent to the inspection. Quinlan argues the fact that a copy of the program not being
immediately available is not relevant. It states that the accidental destruction of the copy
made compliance impossible. Reynolds and Clifton had received hazard communication
training.
The standard requires the employer to have the written hazard communication
program available at the site. The program is provided for the convenience of the
employees and is of little value if it is located at an office. The standard provides that it will
be made available to a representative of the Assistant Secretary upon request. Reynolds was
unable to present a copy of the written hazard communication program at the time of the
inspection.

3 Section 1910.20(e)( 1) provides:

    (1) Whenever an employee or designated representative requests access to a record, the
    employer shall assure that access is provided in a reasonable time, place, and manner. If the
    employer cannot reasonably provide access to the record within fifteen (15) working days, the
    employer shall within the fifteen (15) working days apprise the employee or designated
    representative requesting the record of the reason for the delay and the earliest date when
    the record can be made available.

                                                   14
   This violation has been classified by the Secretary as “other” than serious. Under the

peculiar facts of this case, the violation is reclassified as de minimis. “A violation is properly
characterized as de minimis where it has only a negligible relationship to safety and health
where it is thus inappropriate to require that the violation be abated or to assess a penalty.”
Natiunal Rolling Mills Company, 4 BNA OSHC 1719,1976 CCH OSHD Y 21,114 (No. 7987,
1976). There is no dispute Quinlan had a written hazard communication program. The two
employees at the site had received hazard communication training. Reynolds was unable
to present a copy because his copy had been damaged by rain and destroyed. This was a
construction site and exposure to hazardous products was at a minimum.
The violation is affirmed as de minimis.

                    Item 2 - Alleged Violation of S 1926550(a)(2)


   The load capacity chart in the control operator’s cab was tom and portions of it were

missing (Exh. C-13; Tr. 52-53). The Secretary has charged Quinlan with a violation of
§ 1926.550(a)(2), which provides:
(2) Rated load capacities, and recommended operating speeds, special hazard
warnings, or instruction, shall be conspicuously posted on all equipment.
Instructions or warnings shall be visible to the operator while he is at his
control station.

   Quinlan contends the allegation should be vacated.        It argues:
   Simply put, the load chart was there. It was not pretty, but it was complete
   and sufficient for the tasks at hand. There is no requirement that the load
   chart be in pristine condition at all times.

   Employer knowledge        and employee exposure are based on the fact that leadman

Reynolds was the crane operator (Tr. 53). Quinlan seeks to rebut the nonserious citation
by arguing that the majority of the load chart contained the rated load capacity (Exh. R-l;
Tr. 80-81, 83). A comparison of the load chart observed by Baker, with the load chart
offered by Quinlan, discloses the portions partially damaged or missing, concerned allowable
loads on the jib, pressure load conversion table, crane service, and recommended hoist tackle

                                            15

loads (Exhs. C-13, R-l). The damaged and missing portions of the load chart were not
visible to the crane operator while he was at the control station.
The condition of the load chart is reflected in Exhibit C-13. The original load chart
is reflected in Exhibit R-1. The load chart was tom and portions of it were missing. The
chart was tom such as to remove instructions for allowable loads without outriggers on the
crane and damage to allowable loads on the jib. Almost all of the pressure load conversion
table was also tom away. The absence of instructions and other data, which were tom away,
placed the operator in an untenable position in the event the obliterated instructions were
necessary for operation of the crane.
The tom away portion of the load chart contains information which is essential to the
operation of the crane. The standard refers to load capacities, operating speeds, special
hazard warnings, and instructions. It specifies that instructions or warnings are to be visible
to the operator when he is at his control station. The load chart which was being utilized
did not fulfill these requirements.
The allegation is affirmed.

                 The Umxeventable          Employee Misconduct Defense
                                           Is Reiected


   Quinlan    argues    that   if any violations       of $5 1926.550(a)(14)(i),      1926.105(a),

1926.1053(b)(8), and 1926.59(e)(4) occurred, they were caused by employee misconduct and
he should not be held accountable for the negligence. He claims to have had a safety
program that included specific work rules which address these conditions. According to him,
a ladder was required to be secured, the fire extinguisher should have been replaced by
Reynolds, employees on the roof should have been wearing safety belts and lanyards, and
Quinlan had a written hazardous communication program.
This defense reflects a recognition that it would be unfair to penalize an employer
for conditions that were unpreventable. In order to establish the defense, an employer must
show (1) that it has established work rules designed to prevent the violation, (2) that it has
taken adequate steps to communicate the established work rules to its employees, (3) that

                                                16

it has taken steps to discover violations, and (4) that it effectively enforced the rules when
violations have been discovered. Jensen Construction Co., 7 BNA OSHC 1477, 1979 CCH

OSHD lI 23,664 (No. 76-1538, 1979). Employees must be properly trained and supervised
and made aware of the work rules to be enforced. The employer bears the burden of
proving its defense.
Since a determination has been made that a violation of 8 1926.550(a)(14)(i) and
8 1926.105(a) have been violated, the unpreventable employee misconduct defense must be
considered. Quinlan has a safety program. The program consists of “verbal”
communication with the men at job box meetings. John Quinlan testified, “We have certain
things that we will do and will not do.” He stated that it is a rule of his company that safety
belts and lanyards are to be worn at all times when employees are off the ground (Tr. 117).
He did not testify concerning a specific safety rule for fire extinguishers but indicated that
Reynolds should have been aware that he had the authority to obtain a new one. It is
difficult to ascertain whether Quinlan communicated these rules to his employees. Even if
he had such rules and communicated them to his employees, the program was lacking in
enforcement.
John Quinlan conducted safety inspections at the jobsite. He visited the jobs once
a week. The evidence is lacking in detail as to how effective enforcement is pursued by
Quinlan. There must be someone present on the job at all times to insure that safety is
followed. Reynolds and Clifton were the two Quinlan employees working on the site.
Reynolds was acting as the lea&an or foreman of the job. He was the person responsible
for committing the safety violations. A check of the site once a week by John Quinlan is
insufficient to insure that enforcement of safety rules is being carried out. An adequate
safety program must be able to discover violations and effectively enforce the established
safety rules of the employer.
The defense is rejected.

                                               17
                                Penalty Determination


   The Commission is the final arbiter of penalties in all contested cases. Secretary v.

OSMRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the

Act, in determining an appropriate penalty, the Commission is required to find and give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the history of previous violations. The
gravity of the violation is the principal factor to be considered.
Quinlan is a small employer in the steel erection business. It has been issued
citations in the past. Quinlan has displayed good faith. It has always been cooperative. At
the time of the inspection, it employed twelve people.
The violation of 5 1926.550(a)( 14)(i) was for short duration. Quinlan contends that
the violation resulted from the fire extinguisher being stolen from the cab of the crane. John
Quinlan stated that the fire extinguisher was stolen the night before the inspection. A
penalty of $400 is considered appropriate.
The violation of 8 1926.105(a) is considered quite severe. Reynolds and Clifton were
working at a height in excess of 36 feet without any type of fall protection. In carrying out
their job at that height, both employees were exposed to the perimeter of the roof. A fall
from that height would have probably resulted in their death or serious injury. A penalty
of $2,500 is considered appropriate.

                            FINDINGS OF FACT AND
                          AND CONCLUSIONS OF LAW


   The foregoing decision constitutes     the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                         ORDER


   Based on the foregoing decision, it is


                                            18
    ORDERED:      (1) That the violation of $8 1926.550(a)(9) and 1926.1053(b)(8) and

the penalties proposed for the violations are vacated;
(2) That the violation of 6 1926.550(a)(14)(i) is affirmed and a penalty
of $400 is assessed for the violation;
(3) That the violation of 9 1926.105(a) is affirmed and a penalty of
$2,500 is assessed for the violation;
(4) That the violation of 8 1926.59(e)(4) is affirmed as a de minim&
violation and no penalty is assessed; and
(5) That the violation of 0 1926.550(a)(2) is affirmed.

                                                J
                                                Judge

Date: March 18, 1993

                                           19