Franklin E. Skepton

Plain-English summary

Franklin E. Skepton was the general contractor for a high-school addition in Pennsylvania. OSHA cited conditions including unguarded floor and wall openings, missing hard hats, unsafe compressed-gas handling, unprotected electrical equipment, unstable and unguarded scaffolds, improper gasoline containers, missing stair and ladder protections, and use of a stepladder's top step. The judge upheld the inspection warrant because the worksite was selected under neutral administrative criteria and rejected Skepton's evidentiary and jurisdictional objections. Skepton was also responsible for scaffold hazards affecting a subcontractor's employees because it had authority as the general contractor to require compliance. All serious and other-than-serious citation items were affirmed, with a total penalty of $13,200.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(b)(1); 29 C.F.R. § 1926.100(a); 29 C.F.R. § 1926.350(h); 29 C.F.R. § 1926.404(b)(1)(i); 29 C.F.R. § 1926.405(g)(2)(iv); 29 C.F.R. § 1926.451(a)(2); 29 C.F.R. § 1926.451(a)(4); 29 C.F.R. § 1926.500(c)(1); 29 C.F.R. § 1926.152(a)(1); 29 C.F.R. § 1926.1051(a); 29 C.F.R. § 1926.1052(c)(1); 29 C.F.R. § 1926.1053(b)(13).
• Outcome: Affirmed. All citation items were affirmed, with a total penalty of $13,200.
• Key point: A general contractor with authority to require compliance can be liable for visible scaffold hazards exposing a subcontractor's employees.

Full text (OSHRC public release)

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

SECRETARY OF LABOR
Complainant
V. OSHRC DOCKET
NO. 93-2353
l!WWKUN E. SKEPTON
Respondent.

                           NOTICE OF DOCKETING
                 OF ADMINISIlU~       MW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on February 10,1995. The decision of the Judge
will become a final order of the Commission on March 13, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
March 2, P995 in order to ermit sufficient time for its review. See
Commission Rule 91,29 &. .R. 2200.91.
AlI further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial IX ation
Office of the Solicitor, U.S. DOgL
Room S4004
200Constitution 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
hamg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

                                          /2”7”-~u&-

Date: February 10, 1995 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-2353
NOTICE IS GIVEN TO THE FOLLOWING:

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

Catherine Oliver Murphy
De uty Regional Solicitor
O&ce of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Btreet
Philadelphia, PA 19104

Franklin E. SkeDton, General
Contractor A z
Franklin E. Ske ton
RR #2 Box 128A
Pennsburg, PA 18073 9742

John H. Frye, III
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00123262917:03
 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. Docket 93-2353
FRANKLIN Eo SKEPTON,
Respondent.

APPEARANCES:
Richard T. Buchanan, Esquire Franklin E. Skepton
Office of the Solicitor Pennsburg, Pennsylvania
U.S. Department of Labor Pro Se
Philadelphia, Pennsylvania
For Complainant
BEFORE: Administrative Law Judge John H Frye, III,

                        Findincrs of Fact

Background
10 Respondent Franklin E. Skepton is a proprietorship
which was engaged in construction at a work place located at
Montgomery Avenue and Walt Road, Upper Perkiomen High School, Red
Hill, PA 18076. (Answer, p II; Tr. 382.)
20 In its business activities, respondent utilizes
tools, equipment, materials, goods and supplies which have
originated in whole or in part from locations outside the
Commonwealth of Pennsylvania. (Answer, 5 IV.)
 30 The work being performed at the workplace was an
addition to a high school. (Tr. 55; GX 27 at 15.)
40 Respondent was the general contractor at the
workplace. (GX 27 at 16.)
50 At all relevant times, respondent employed at
least thirty-one employees in its business activities, including
approximately four employees at the workplace. (Answer, f[III.)
The Inspection Warrant
60 Based on Respondent's previous refusal to permit
an inspection without a warrant,' on July 12, 1993, George J.
Tomchick, Allentown, Pennsylvania Area Director for the
Occupational Safety and Health Administration (OSHA), applied for
a warrant for inspection of the workplace from Magistrate Judge
Arnold Co Rapoport, United States District Court for the Eastern
District of Pennsylvania. (GX 1; Tr. 12, 16, 20.) The warrant
was issued that day.
70 The application for the warrant stated that the
workplace was selected for a comprehensive safety inspection
pursuant to the relevant administrative criteria set forth in
OSHA,s Scheduling System for Programmed Inspections, which was
attached to the application as Exhibit A. (GX 1, application at
¶IB3-w

'On July 24, 1990, an OSHA inspector assigned to the Allentown
Area Office attempted to conduct an inspection of respondent's
worksite at 539 School Road, Nazareth, Pennsylvania, but
respondent refused the inspection without a warrant. (GX 1'
application at 3 12; Tr. 325-26, 327, 355.)

                                  2

8 l On July 14, 1993, a United States Marshal
accompanying OSHA compliance officers George Boyd and Trudi
Ketchell served the warrant on Paul Skepton, respondent's foreman
at the workplace. After reviewing the warrant, Paul Skepton
permitted Mr. Boyd, Ms. Ketchell, and the two United States
Marshals accompanying them to proceed with the inspection of the
workplace. (Tr. 52-54.)

Respondent's Motion to Quash and/or Dismiss All Charaes
At the opening of the trial, Respondent filed a motion which
seeks the dismissal of all charges. In its entirety, the motion
states:
Respondent, Franklin E. Skepton, hereby moves to quash
all of the evidence because it was illegally obtained
and/or to dismiss all charges for the reason that all
evidence in support of the charges was illegally
obtained.
Attached to the motion is an unsigned page listing five
"Reasons for Motion to Quash and/or Dismiss All Charges.,' The
first of these is that OSHA based its application for a warrant
on nonexistent evidence. The second alleges that an anonymous
complaint received by OSHA with respect to this work site does
not exist,* The third alleges that the compliance officers
sought the warrant and were accompanied by armed U.S. Marshals
because of a personal vendetta against Mr. Skepton on account of

Mr. Skepton correctly cites Brock v. Brooks Woolen Company 782
F.2d 1066 (1st Cir. 1986) for the proposition that a warran't
issued on the basis of false or misleading information cannot
stand. However, that is not the case with respect to this
warrant.
3
his Jewish ancestry on the part of Messrs. Doherty and Tomchick
d
of OSHA. The fourth states that Messrs. Doherty and Tomchick
falsely accused MT. Skepton of threatening their physical well
being and that criminal charges brought against Mr. Skepton based
on this accusation were dismissed. The fifth states that the
armed Marshals were brought in I\ l l 0 solely to harass,
intimidate, and embarrass [Mr. Skepton] into violating [his]
constitutional rights."
In Marshall v. Barlow's, Inc,. 436 U.S. 307, 320-21, 98
SmCtm 1816, 1824-25 (1978)' the Supreme Court held:
For purposes of an administrative search
. probable cause justifying the issuance
Af"a warrant may be based on a showing
that Veasonable 1egislati;e'o;
administrative standards for conducting an
inspection are satisfied with respect
~o'a'particular [establishment].' A
warrant showing that a specific buiiAe;s has
been chosen for an OSHA search on the basis
of a general administrative plan for the
enforcement of the Act derived from neutral
sources l . would protect an employer's
l

                 Fourth Amendment rights.

In this case, the application for an inspection warrant [GX l]
sets forth in detail (39 3 through 9 and Exhibits A and B) the
neutral administrative criteria used in the selection of
respondent and the workplace for an inspection. Mr. Skepton has
not challenged this selection process, other than to express
\ l l l amazetment] at how the University of Tennessee comes up
with the Skepton name when I never went to any university 0 l 0 0
88

(Trm 327-32.)

                                       4

He has alleged that the warrant was obtained on the basis of
false representations:
The false swearing in the warrant application that the
inspection was being solely called because of a
computer selection: when in fact, the Department of
Labor received an alleged anonymous complaint letter,
the same letter had the post mark date erased and
insufficient postage.
(Respondent's brief, J[5; pp. 9-10.) The complaint to which he
refers was dated July 8, a Thursday, and was date-stamped by OSHA
as received on July 13, 1993, a Tuesday. (GX 2.) The warrant
application was sworn to and the warrant issued on Monday, July
12, 1993. (GX 1,) Whatever Mr. Skepton's concerns regarding the
legitimacy of the complaint letter may bef3 he has furnished no
reason to question the date-stamp on the complaint. The warrant
was properly issued on the basis of neutral administrative
criteria, not on the basis of a bogus complaint letter.' See

Skepton has pointed to an inconsistency between the

3Mrrn

testimony of Area Director Tomchick and that of Inspector Boyd.
The former testified that he did not see the complaint letter
until July 15 or 16 (Tr. 36)' while the latter testified that the
complaint letter and warrant were handed to him by the former on
July 13 (Tr. 180-81). Assuming that Mr. Boyd's recollection is
correct, no reason exists to believe that the complaint had been
received before the filing of the warrant application.
%r. Skepton alleges the Secretary fabricated an anonymous letter
complaining of unsafe work conditions at the workplace in order
to obtain the warrant. However, the warrant was not based on the
existence of such a complaint. Mr. Skepton also alleges that
OSHA Compliance Officer Tom Doherty and Area Director George
Tomchick have discriminated against him because of his Jewish
ancestry, but presented no evidence to support this allegation.
Mr. Skepton also claims that Mr. Doherty wrongly accused Mr.
Skepton of physically threatening Mr. Doherty in the past, and
that the armed U.S. Marshals who accompanied the compliance
officers were not needed and served only to harass and intimidate
Mr, Skepton. Respondent presented evidence 1. that a District
(continued...)
5
Matter of Trinitv Industries, InC,. 876 F.2d 1485, 14 BNA OSHC
1081 (11th Cir. 1989): Cf. Trinitv Industries, Inc., 15 BNA OSHC
1827 (Nos. 89-2168 and 89-2169, 1992). Respondent's motion to
quash is denied.
Respondent's Denial of Jurisdiction
In his brief, Mr. Skepton asserts that the Secretary has not
proved that he has jurisdiction in this case, nor has
jurisdiction been admitted by anyone authorized to act for
Respondent. (Brief, p. 11.) However, the answer to the
complaint filed on Mlfm Skepton's behalf admitted that he uses
tools, materials, goods, and supplies which have originated
outside the Commonwealth of Pennsylvania.5 This admission is
sufficient to establish jurisdiction.
Respondent's Defense to the Merits of the Citations
Mr. Skepton's defense to the merits of the citations is best
summed up by the following:
... I want to state for the record that all of the
citations alleging violations against Franklin E.

4
.m.continued)
(

Justice found Mr. Skepton not guilty of harassment of Mr. Doherty
in connection with an earlier inspection (RX l), and 2.
concerning Mr. Skepton's predisposition to avoid violence (Tr.
328). Mr. Tomchick personally spoke with Mr. Doherty and
reviewed the file of the previous inspection, Based on this, he
reasonably believed that the compliance officers needed
protection. (GX 1, application at 1 12; Tr. 19, 26, 30-31.) mm

Skepton's evidence does not defeat this conclusion, particularly
in light of the lack of support for his allegation that the OSHA
officials were prejudiced against him. Moreover, there is no
evidence that the marshals did more than serve the warrant and
accompany the inspectors.
?Phe answer was not amended by Mr. Skepton following his firing
of his attorney who had filed it,

                                6

Skepton certainly did not happen. There is not one
photograph that truly depicts any OSHA violation by
Skepton or any of his employees. The entire hearing
was conducted primarily with hearsay evidence by Mrm
George Boyd and his failure to produce any witnesses or
for that matter even his fellow compliance officer who
assisted in this investigation and illegedly taking
[sic] the photographs while Mr. Boyd took his notes?
(Respondent's brief, p. 8.)
Mr. Skepton consistently objected to the introduction of
photographs taken by Ms. Ketchell on the ground that she was not
present and therefore could not be examined with respect to them.
However, in each instance Mr. Boyd testified that he was standing
beside Ms. Ketchell when she took the picture being offered and
that the picture was an accurate representation of the condition
depicted? Thus, Mr. Skepton was not prejudiced by Ms.
Ketchell's absence.
In addition, Mr. Skepton presented the testimony of Joseph
Em Ritchey, a Pennsylvania insurance broker who handles Mr.
Skepton's worker's compensation insurance. (Tr. 164-80.) Mr.
Ritchey testified that Mr. Skepton has \... an enviable track

6Mrm Skepton also takes the position that he did not create, nor
were his employees exposed to, any violations which were revealed
by the inspection, citing D. Harris Mason- Contracting Vm Dole,
876 F.2d 343 (3rd Cir. 1989). (Brief, pp. 12-13.) The
discussion of the specific violations alleged by the Secretary
reveals that record does not support this assertion. Harris
Masonrv concerned application of the Commission's Anninq-Johnson
doctrine and is not applicable to the facts of this case.
7Mrm Skepton also pointed out that in the few pictures which he
took of the two compliance officers, Mr. Boyd always held the
camera and Ms. Ketchell the clipboard, rather than the other way
round, and asserted that this reflects adversely on Mr. Boyd's
credibility. (Tr. 273.) The fact that Mr. Boyd was photographed
with camera in hand does not discredit his testimony that Ms.
Ketchell took the pictures which were introduced in evidence.
7
record of safety specifically with worker's compensation 000'8
and has a \... continued commitment towards safety." (Tr. 165~
66.) Mr. Ritchey also commented on the adverse effect that OSHA
citations might have on a company's standing with insurers. The
evidence must be viewed in light of this defense and the fact
that no representative of Mr. Skepton consented to participate in
an opening conference or accompany Mr. Boyd on his inspection.
(Tr. 55-56.)
It is also worthy of note that Mr. Skepton did not attack
Mr. Boyd's calculation of the proposed penalty for any
violation.8 Mr. Boyd is an experienced compliance officer who
is familiar with the construction industry. (Tr. 41-44.)
Moreover, his specific penalty recommendations were reviewed by
his supervisor. In these circumstances, I have reviewed Mr.
Boyd's calculations and their underlying assumptions to determine
whether they might be sufficiently inaccurate as to call into
question any individual penalty proposed. I find no reason to
question his assumptions or calculations and accordingly have
affirmed the individual penalties proposed.

%r. Skepton did point out that Mr. Boyd's assumption that I&m
Skepton had 65 employees was too high. (Brief, p. 6: Tr. 1920
93.) However, the actual number (31) as revealed in the answer
would not entitle Mr. Skepton to a larger penalty reduction under
the provisions of the OSHA Field Operations Manual.

                            8

Citation 1, Item 1 -- Alleged Violation of 29 CFR 8
1926.500(b)(l) -- Failure to Guard Floor Openings
Section 1926.500(b)(l) states:
Floor openings shall be guarded by a standard railing
and toeboards 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.
A floor opening is defined at 29 C.FmR. 5 1926.502(b) as
[a]n opening measuring 12 inches or more in its least
dimension in any floor, roof, or platform through which
persons may fall.
On July 15, 1993, during the course of the inspection,
Mr. Boyd observed two workers, one an employee of respondent,
placing a section of duct into an unguarded shaft opening
measuring eighty by 100 inches, in the center of the roof of the
addition. The employee was wearing no fall protection and had to
bend over the opening to lower the duct into place, exposing
himself to a fall hazard of approximately 157 inches. (Tr. 59 -
63, 202, 203; GX 4.)
This condition, which could have resulted in serious
injuries, including compound fractures, concussion, severe
lacerations, or death, was in plain view. By virtue of his
frenetic activity at the site, Paul Skepton would have been aware
of it. (Tr. 64-65, 237-39.)
Mr. Skepton objects to the admission of Mr. Boyd's
testimony that one of the employees who were installing the duct

was one of his employees. Mr. Boyd's testimony was based on a
telephone conversation with that employee, Mr Bartman. Mr.
Skepton urges that Mr. Boyd's testimony on this point is hearsay

                             9

and should have been excluded. He points to the absence of a
photograph showing the employees installing the duct as casting
doubt on the veracity of Mr. Boyd's assertion that he observed
this event. (Respondent's brief, pp. 6-7.) However, the lack of
a photograph does not cast any serious doubt on Mr. Boyd's
credibility.
Mr. Bartman's statement to Mr. Boyd was a statement
made by MT. Skepton's employee concerning a matter within the
scope of his employment. Therefore, it falls within the scope of
Federal Rule of Evidence 801(d)(2) and is not hearsay. As such,
it was properly admitted. See Secretarv Vm Regina Construction
co s 15 BNIiOSHC 1044, 1047-48 (Rev. Com. 1991). However, the
l

question remains whether Mr. Bartman's statement is reliable.
Mr. Skepton expressed concern over the fact that Mr. Bartman was
not produced as a witness. (Tr. pp. 285-86.) Mr. Bartman's
statement concerns his activities in discharge of his duties as
an employee. Therefore, while Mr. Bartman had \... time to
realize his own self-interest [and] feel pressure from [his]
employer l l l " because he consented to be interviewed only by
telephone after the work day, his \... statement involves a
matter of [his] work about which it can be assumed [he] is well-
informed and not likely to speak carelessly l l 0’ I8 and Mr.
Skepton may be ~~... expected to have access to evidence which
explains or rebuts the matter asserted." Reaina Construction,
suDra. 15 BNA OSHC at 1048.

                                     10

However, Mr. Skepton testified over the Secretary%
objection that Mr. Bartman told him that he was not involved in
trying to install the duct in question. (Tr. p. 366.) Moreover,
Mr. Skepton testified that there was friction between him and his
employees on the one hand, and Oley Mechanical on the other
because the latter was not proceeding with its responsibilities
in an efficient manner. According to Mr. Skepton, his employees
would not have assisted Oley in performing its work. (Tr* PP.
333-36, 366-67.)
The Secretary regards Mr. Bartman's statement to Mr.
Boyd as more reliable than his statement to Mr. Skepton because
the latter occurred on an unspecified date months after the
inspection, while the former was contemporaneous with the
incident in question, and because of an employee's natural
tendency to protect himself from reprisal from his employer when
he has done something which could result in an OSHA citation.
Indeed, Mr. Bartman would not talk to Mr. Boyd at the workplace
for fear of losing his job. (Tr. 87.) Given Mr. Skepton's
virulent opposition to OSHA and his disagreements with Oley
Mechanical (Tr. 325-26, 333036), it would not be surprising if
Mr. Bartman were reluctant to tell Mr. Skepton that he assisted
an Oley employee in installing duct in the roof opening. Mr.
Bartman's statement to Mr. Boyd immediately following the walk
around inspection is entitled to greater weight than his
statement to Mr. Skepton months later.

                            11

In recommending a $3,000.00 penalty, Mr. Boyd took into
consideration the gravity of the alleged violation, respondent's
size, good faith, and history of prior violations. (Tr. 67.)
The Secretary has established a violation of Q 1926.500(b)(l) and
recommended an appropriate penalty.

         Citation 1, Item 2 -- Alleged Violation of 29 CFR Q
         1926,100(a) -- Failure to Wear Hard Hat
              On July 14, 1993, Mr. Boyd observed Paul Skepton

passing under a scaffold without wearing a hard hat, thus
exposing himself to the hazard of debris falling from the
scaffold, striking him on the head, and possibly causing
lacerations and/or concussions. (GX 5, 6; Tr. 70-78, 210.)
Mr. Boyd testified that there were people working on
the scaffold above the area where Paul Skepton passed without a
hard hat. (Tr. 74, 211-12; GX 19.) Mr. Skepton maintains that
there were no employees or activity on the scaffold above Paul
Skepton and that, therefore, no violation occurred. (Tr.332-33.)
The standard in question requires that \[e]mployees
working in areas where there is a possible danger of head injury
l l 0 from falling 000 objects l 0 0 shall be protected by protective
helmetsoJ8 (§ 1926.100(a), emphasis supplied.) Because the
standard protects against the possible danger of head injury from
falling objects, it is immaterial whether any workers were on the
scaffold when Paul Skepton passed under it. The existence of the
scaffold provides the possibility that someone may be on it and
cause an object to fall, or that, as pointed out by Mr. Boyd, the

                                           12

person passing under the scaffold may shake it, causing the same
result. (Tr. 210-11.)
In recommending a $1,200.00 penalty, Mr. Boyd took into
consideration the gravity of the alleged violation, respondent's
size, good faith, and history of prior violations. (Tr. 79-80.)
The Secretary has established a violation of 8 1926.100(a) and
recommended an appropriate penalty.

 Citation 1, Item 3 -- Alleged Violation of 29 CFR Q
 1926.350(h) -- Use of Broken Fuel Gas Pressure Regulator
      Section 1926.350(h) provides:
      Regulators and gauges. Oxygen and fuel gas pressure
      regulators, including their related gauges, shall be in
      proper working order while in use.
      On July 15, 1993, Mr. Boyd observed an Airco fuel gas

pressure regulator on a hose running from an acetylene tank
located on the second floor of the addition: the outer plastic
cover and the indicatdr needle of the regulator were missing.
(GX 7, GX 8, Tr. 80-83.) The hose from the acetylene tank, along
with another hose from an adjacent oxygen tank, were connected to
a cutting torch located on exterior scaffolding on the south end
near the southeast corner of the addition. (GX 9; Tr. 84-85.)
On July 16, Mr. Boyd ascertained on through the same
conversation with respondent's employee, John Bartman, discussed
in connection with item 1 that Mr. Bartman had used the acetylene
cutting torch located on the scaffolding to cut some metal that
was interfering with a woodworking project he was performing,
that this use occurred on July 15, 1993, and that the torch and

                           13

tanks belonged to Mr. Skepton.9 (Tr. 86-90, 224.) While he
offered no direct evidence concerning the ownership of the torch
and tanks, Mr. Skepton asserted that there is no evidence that
shows a violation on his part. (Tr. 226). Mr. Skepton
speculated that the cutting referred to by Mr. Bartman was
performed by Oley Mechanical in connection with their efforts to
install the HVAC system on the roof because he had finished the
woodworking necessary to install the roof. (Tr. 334-35.) For
the same reasons as those given for relying on Mr. Bartman's
statement to ML Boyd in connection with item 1, I find that Mr.
Bartman's statement to Mr. Boyd concerning the torch and tanks is
reliable.
Paul Skepton walked by the particular area where the
acetylene tank was located and thus was aware or reasonably
should have been aware of the condition of the regulator. (Tr0
90.) That condition exposed Mr. Bartman to the hazard of an
explosion which could cause severe burns. (Tr. 83-84, 91.) In
recommending a proposed $1,200.00 penalty for this item, Mr. Boyd
took into consideration the gravity of the alleged violation,
respondent's size, gocd faith, and history of prior violations.
(Tr. 91.) The Secretary has demonstrated a violation of Q
1926.350(h) and has recommended an appropriate penalty.

9Like Mr. Boyd's testimony discussed in connection with item 1,
MT. Skepton objected to this testimony on the grounds that it is
hearsay. However, it falls within the scope of Federal Rule of
Evidence 801(d)(2) and is not hearsay.
14
 Citation 1, Items 4a and 4b -- Alleged Violation of 29 CFR
5s 1926.404(b)(l)(i) and 1926.405(g)(2)(iv) -- Failure to
Use GFCI or Assured Equipment Grounding, and Failure to Use
Strain Relief Device, Respectively.

         Section 1926.404(b)(l)(i) states in pertinent part:
      The employer shall use either ground fault circuit
      interrupters as specified in paragraph (b)(l)(ii) of
      this section or an assured equipment grounding
      conductor program as specified in paragraph (b)(l)(iii)
      of this section to protect employees on construction
      sites. . . .
      Section 1926.405(g)(2)(iv) states:
      Strain relief. Flexible cords shall be connected to
      devices and fittings so that strain relief is provided
      which will prevent pull from being directly transmitted
      to joints or terminal screws.
      On July 15, 1993, Mr. Boyd observed on the roof of the

addition and existing structure a Milwaukee Sawzall and Makita
circular saw plugged into an outlet through an orange extension
cord that was not protected with a ground fault circuit
interrupter (GFCI). Respondent did not have an assured equipment
grounding program in use at the workplace. (Tr. 367-68.)
There were puddles of water on the roof at the time. (GX 10-11,
13-16; Tr. 92-99, 100-01.) ML Boyd also observed that the
strain relief of the orange extension cord attached to the Makita
circular saw had been pulled loose from the female end of the
cord, (GX 16; Tr. 104-06.)
When Mr. Boyd and Ms. Ketchell went out on the roof on
July 15, 1993, there were two employees standing at the location
where the two saws were. When Mr. Boyd and Ms. Ketchell
attempted to speak with the employees, the employees walked away.

(Tr. 309.) Mr. Boyd later ascertained that the two individuals
15
on the roof were respondent's employees John Bartman and Jeff
Williams, and that they had used the two saws on the roof on July
15, 1993. (Tr. 99; 309.) The above conditions were in plain
view. (Tr. 102.)
Mr. Skepton denied that his employees were using the
Sawzall or Makita saw on the roof on July 15, 1993. He indicated
that he \. . . believe[s) -- and I didn't see it so I can only
say I believe -- I believe that Oley Mechanical was altering
these roof curbs . . .I* (Tr. 334.) However, he was not with Mr.
Boyd on the roof. The latter testified that he heard wood being
cut on the roof while he was on the second floor, went up to the
roof, and observed the only two employees on the roof walking
away from the saws. (Tr. 308.) The box for the Sawzall had
%kepton Construction Co? written on it. (Tr. 310.) Mr.
Skepton testified that the box belonged to Paul Skepton, which
only corroborates Mr. Boyd's testimony that it was respondent's
employees who were using the saws on the roof. (Tr. 381.)
Indeed, Mr. Skepton failed to explain why an employee of Oley
Mechanical, a company with which he had so many difficulties at
the site, would be permitted to use his foreman's saw.
The lack of GFCI or an assured equipment grounding
program, and the damaged strain relief, exposed Mr. Bartman and
Mr. Williams to possible injuries of electrical shock, burns, or
death? (Tr. 102, 231-33.) A penalty of $3,000.00 for Item

%r. Skepton objected to Mr. Boyd's testimony apparently on the
basis that because the same potential injuries could be received
(continued...)
16
da, grouped with Item 4b, was proposed. In recommending the
$3,000.00 penalty, Mr. Boyd took into consideration the gravity
of the alleged violation, respondent's size, good faith, and
history of prior violations. (Tr. 109.) The Secretary has
demonstrated violations of 5 1926.350(h) and 1926.405(g)(2)(iv)
and has recommended an appropriate penalty.

 Citation 1, Item 5 -- Alleged Violation of 29 CFR 5
 1926.451(a)(2) -- Use of Unstable Materials to Support
 Scaffold
     Section 1926.451(a)(2) states:
     The footing or anchorage for scaffolds shall be sound,
     rigid, and capable of carrying the maximum intended
     load without settling or displacement. Unstable
     objects such as barrels, boxes, loose brick, or
     concrete blocks, shall not be used to support scaffolds
     or planks.
     On July 14, 1993, Mr. Boyd observed employees of

respondent's masonry subcontractor, Nestor Brothers, working on a
Hoist-o-Matic scaffold on the south side of the construction
area, Two legs of the scaffold were supported by scrap lumber
and concrete block, which was unstable and settling. The
scaffold was approximately twenty-six to twenty-eight feet in
height. These conditions were in plain view. (GX 17-18; Tr.
110-114, 116-117.) Mr. Skepton explained the reasons why this

10
( ,..continued)
as a result of these two different conditions, charging two
violations amounted to double jeopardy. (Tr. 106-07.) Mr.
Skepton was charged with permitting two separate and distinct
conditions, each of which violated a separate and distinct
standard, rather than being charged twice under the same standard
for the same condition. Thus, considerations of double jeopardy
are not presented.
17
condition existed and testified that it was "perfectly safe."
(Tr. 336-37.) This explanation ignores clear prohibition against
the use of concrete blocks to support scaffolds contained in the
standard. Nestor Brothers employees were exposed to the hazard
of falling on an unstable scaffold, and possible injuries of
abrasions, cuts and bruises, and minor fractures as a result.
(Tr. 114, 115-16.)
As general contractor, Mr. Skepton had the authority to
control the work performed by its subcontractor, Nestor Brothers,
and other subcontractors at the site. (Tr. 117-18; GX 27,)
Under the multi-employer worksite doctrine, a general contractor
is liable for the violations of a subcontractor where the general
contractor had the authority at the worksite to assure compliance
with safety standards, even if it did not create the hazard and
its own employees were not affected. See National Industrial
Constructors, Inc., 10 BNA OSHC 1081, 1089 (No. 76-4507, 1981);
Gil Haugan d/b/a Hauaan Construction Co., 7 BNA OSHC 2004, 2006
(Nos. 76-1512 and 76-1513, 1979) (general contractor liable for
subcontractor's scaffolding-related violations).
Mr. Boyd took into consideration the gravity of the
violation, respondent's size, good faith, and history of prior
violations, and recommended a $900.00 penalty. (Tr. 119-20.)
The Secretary has established a violation of 5 1926.451(a) (2) and
has recommended an appropriate penalty.

                            18

Citation 1, Item 6 -- Alleged Violation of 29 CFR 5
1926.451(a)(4) -- Failure to Install Guardrails and
Toeboards on Open Sides of Scaffoldll
On July 14, 1993, Mr. Boyd observed Nestor Brothers
employees working on the south end and west side of the addition
on a Hoist-o-Matic scaffold that was not fully guarded with
guardrails, exposing the employees to a fall hazard of
approximately twenty-six to twenty-eight feet. The scaffold
lacked guardrails in numerous locations. (GX 19: Tr. 121-26,
250-51, 259, 294, 313-14.)
In cross examining Mr. Boyd, Mr. Skepton took the
position that the scaffold was in the process of being raised to
a new level, and that the horizontal braces which also served as
guardrails had not been fully installed. (Tr. 251, 259-60.)
However, when cross examining Mr. Boyd with respect to another
item and on direct, he took the position that the masons had
completed their work at a location where Paul Skepton was
photographed passing under the scaffolding. (Tr. 205-06, 333.)
This is also on the west elevation where Mr. Boyd observed masons
working on unguarded scaffolding. (Tr. 73-74.) I find that the
Secretary has established that employees of the subcontractor,
Nestor Brothers, were exposed to a fall hazard from the
scaffolding as a result of the lack of guardrails. This
condition was readily apparent and could have resulted in a
fatality. (Tr. 126-27.)

'IThe Secretary moved to amend this item to allege, in the
alternative, a violation of 8 1926.451(a)(5). This motion is
denied as moot.

                             19

In recommending the proposed $3,000.00 penalty, Mr.
Boyd took into consideration the gravity of the alleged
violation, respondent's size, good faith, and history of prior
violations. (Tr. 127-28.) The Secretary has established a
violation of 5 1926.451(a)(4) and has recommended an appropriate
penalty.

 Citation 1, Item 7 -- Alleged Violation of 29 CFR §
 1926.500(c)(l) -- Failure to Guard a Wall 0pening.l'
        Section 1926.500(c)(l) states, in pertinent part:
        Wall openings, from which there is a drop of
        more than 4 feet, and the bottom of the
        opening is less than 3 feet above the working
        surface, shall be guarded as follows:
             (i) When the height and placement of the
        opening in relation to the working surface is
        such that either a standard rail or
        intermediate rail will effectively reduce the
        danger of falling, one or both shall be
        provided: . . .

Section 1926.502(o) a wall opening as
[a]n opening at least 30 inches high and 18 inches
wide, in any wall or partition, through which persons
may fall, such as a yard-arm doorway or chute opening.
On July 15, 1993, Mr. Boyd observed respondent's
employees and those of other employers at the workplace walking
past an unguarded wall opening on the south stairwell of the
addition. The wall opening measured approximately 116 inches
wide by 170 inches high, with an approximately twelve inch lip at
the bottom. From the outside, the bottom of the wall opening was

%he Secretary moved to amend this item to allege that the
employees were exposed to a nine foot, eight inch, fall hazard,
rather than a six foot, eight inch, hazard as stated in the
citation. This motion is granted.
20
approximately nine feet, eight inches above the ground. (GX 20-
21; Tr. 128-32, 132-33.) Employees were exposed to the hazard of
a fall which could have resulted in minor fractures, abrasions,
sprains, and strains.
In his cross examination of Mr. Boyd with regard to
this item, Mr. Skepton relied on a photograph of two large window
openings on the second floor west side of the building. This
photograph shows a step-down porch on the outside of a makeshift
guardrail on one of the openings. Mr. Skepton premised his
examination on the obvious fact that employees were only exposed
to a fall of about one foot. (RX 7: Tr. 263-67.) However, this
photograph does not depict the hazard shown in GX 20 and 21,
which show a window on the south side of the building.13 (Tr0
130.) It is not relevant to the violation charged.
In recommending a $900.00 penalty, Mr. Boyd took into
consideration the gravity of the alleged violation, respondent's
size, good faith, and history of prior violations. (Tr. 134-35.)
The Secretary has established that a violation of 5
1926.500(c)(l) occurred and has recommended an appropriate
penalty.

%oreover, the hazard shown by the Secretary's photographs is a
single opening which does not have a porch whose walls are brick,
while Mr. Skepton's photograph shows two wide openings each with
a step-down porch with brick walls.
21
 Citation 2, Item 1 -- Alleged Violation of 29 CFR 5
1926.152(a)(l) -- Failure to Use Approved Containers to
Store Gasoline.
Section 1926.152(a)(l) states, in pertinent part:
Only approved containers and portable tanks shall be
used for storage and handling of flammable and
combustible liquids.
To be approved by the National Fire Protection Association, cans
used for flammable liquids must have self-closing lids. (Tr0
135.)
Item 1 consists of two separate instances. In Instance
(a), the Secretary alleges that gasoline stored in a plastic five
and one-quarter gallon container on the west side of the addition
on July 14, 1993, did not have a self-closing lid. (GX 3, as
amended.14
) In Instance (b), the Secretary alleges that
gasoline stored in a red plastic two and one-half gallon
container in the storage trailer on July 16, 1993, did not have a
self-closing lid.
On July 14, 1993, Mr. Boyd observed Nestor Brothers
employee Ken Myers using a five-gallon orange colored can to
refuel the mortar mixer. The can did not have a self-closing
lid. These conditions were in plain view. Mr. Boyd testified
that he learned from Mr. Myers that the can contained gasoline
used to refuel the mixer. (Tr. 136-41, 305-06; GX 22.) The
testimony concerning Mr. Myer's statements was conditionally
admitted over Mr. Skepton's objection. Because Mr. Myers is not

I4 Citation 2, Item 1 was amended at the hearing to reflect a
date of July 14, 1993 rather than July 15, 1993. (Tr. 137-38.)
22
a Skepton employee, Mr. Boyd's testimony concerning his
statements does not fall within the scope of Rule 801(d)(2)(D) of
the Federal Rules of Evidence. Consequently, I reverse my ruling
admitting this testimony, and find that the admissible evidence
related to this instance falls short of establishing that a
violation occurred.
On July 16, 1993, Mr. Boyd observed a red plastic two
and one-half gallon container without a self-closing lid inside
the trailer on the west side of the addition. The container was
stored in the job trailer used by respondent% employeesfq5
including Paul Skepton. Also on July 16, Mr. Boyd observed an
employee of Mr. Skepton using a gasoline powered chop saw. Mr.

Boyd ascertained from Mr. Bartman later that evening that Mr.
Skepton's employees had used the container to refill the chop saw
with gasoline on several occasions. (Tr. 141-44.) I find that
the Secretary has demonstrated that Mr. Skepton violated
5 1926.152(a)(l), and has proposed an appropriate penalty of
$0.00.

%r Skepton objected to Mr. Boyd's identification of this
trailer as his based on his conversation with workers at the
site, pointing out that the trailer had no identifying markings
and that an employee of another contractor might be inclined to
misidentify the trailer as Skepton's in order to protect his
employer. (Tr. 285-86.) I consider this to be a remote
possibility. In any event, the identification of the trailer was
based on more than Mr. Boyd's conversation with workers on the
site.
23
 Citation 2, Item 2 -- Alleged Violation of 29 CFR 8
1926.1051(a) -- Failure to Provide Stairway or Ladder at
Point of Access with a Break in Elevation of 19 Inches or
More.
Section 1926,1051(a) states:
A stairway or ladder shall be provided at all personnel
points of access where there is a break in elevation of
19 inches (48 cm) or more, and no ramp, runway, sloped
embankment, or personnel hoist is provided.
On July 14, 1993, Mr. Boyd observed Paul Skepton climbing from a
window opening to the scaffold frame to the ground. In so doing,
he used the window opening as a personnel point of access. Mr.
Boyd did not observe anyone else so use the window opening.
There was a break in elevation from the bottom of the window
opening to the ground of approximately three feet, but no
stairway or ladder was provided. As a result, Paul Skepton was
exposed to a possible injury of a strain, bruise, or scrape as a
result of the conditions described in the preceding paragraph.
(GX 5; Tr. 146-49; 289-90.) I find that the Secretary has
demonstrated a violation of 8 1926.1051(a) and has proposed an
appropriate penalty of $0.00.

Citation 2, Item 3 -- Alleged Violation of 29 CFR 5
1926,1052(c)(l) -- Failure to Provide Stairway with a
Handrail or Stairrail.
      Section 1926,1052(c)(l) states:
     Stairways having four or more risers or rising more
     than 30 inches (76 cm), whichever is less, shall be
     equipped with: (i) At least one handrail: and (ii) One
     stairrail system along each unprotected side or edge.


                             24

On July 16, 1993, Mr. Boyd observed an employee of
respondent using a wooden five-riser stairway, which was
approximately three feet, eight inches wide and four feet high,
and which lacked a handrail or stairrail along either side. The
stairway provided access to the storage trailer at the workplace.
On July 15, Mr. Boyd observed Paul Skepton using the same
stairway. (GX 23-24: Tr. 149-53.) Mr. Skepton's employees were
exposed to a slipping or falling hazard as a result of the
conditions described in the preceding paragraph. I find that the
Secretary has demonstrated a violation of Q 1926.1052(c)(l) and
has proposed an appropriate penalty of $0.00.

 Citation 2, Item 4 -- Alleged Violation of 29 CFR 5
 1926,1053(b)(13) -- Use of Top of Stepladder as a Step.
        Section 1053(b)(13) states:   "The top or top step of a

stepladder shall not be used as a step." On July 15, 1993, Hr.
Boyd observed an employee of respondent use the top step of a six
foot step ladder while moving ceiling tiles at the direction of
Paul Skepton. Paul Skepton was present when the event occurred.
The employee was exposed to a hazard of a fall and a consequent
minor fracture, strain, and/or sprain. (Tr. 155-58, 301-02.)
Mr. Skepton challenged Mr. Boyd's identification of one
of the exposed employee as one of his by pointing out that Mr.
Boyd's testimony that the employee pictured in GX 25 was the same
employee pictured in GX 30 is incorrect. (Tr. 315, 317-19.) The
fact that GX 25 and GX 30 portray different employees does not
seriously question Mr. Boyd's credibility or the fact that an
25
employee was exposed to a fall by virtue of standing on the top

of the stepladder. Paul Skepton directed two employees to remove
ceiling tile from the area portrayed in GX 25. Even if they were
not Mr. Skepton's employees, the fact that Paul Skepton directed
the employees to do the work which resulted in the violation

makes Mr. Skepton liable for the ensuing safety violations. I
find that the Secretary has demonstrated that Respondent violated

5 1926,1053(b)(l3) and has proposed an appropriate penalty of
$0.00.

                     Conclusions of Law

      10   Respondent is an employer engaged in a business

affecting commerce within the meaning of section 3(5) of the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C.
5 652(5) ("the Act?').
20 Jurisdiction of this proceeding is conferred upon
the Occupational Safety and Health Review Commission by section
10(c) of the Act, 29 U.S.C. Q 659(c).
30 The inspection warrant issued by Magistrate Judge
Rapoport on July 12, 1993 was valid in all respects and based on

administrative probable cause.
40 The inspection warrant was properly semed on Paul
Skepton on July 14, 1993.
Citation 1, Item 1
50 Respondent was in serious violation of the
standard set out at 29 C.F.R. Q 1926.500(b)(l). The proposed

                             26

penalty of $3,000.00 for respondent's violation of 1926.500(b)(l)

was properly calculated in conformity with the requirements of
section 17(j) of the Act, 29 U.S.C. 5 666(j), and is affirmed.
Citation 1. Item 2
60 Respondent was in serious violation of the
standard set out at 29 C.F.R. 5 1926.100(a). The proposed
penalty of $1,200.00 for respondent's violation of § 1926.100(a)
was properly calculated in conformity with the requirements of
section 17(j) of the Act, 29 U.S.C. 8 666(j), and is affirmed.
Citation 1, Item 3
70 Respondent was in serious violation of the
standard set out at 29 C.F.R. 5 1926.350(h). The proposed '
penalty of $1,200.00 for respondent's violation of 1926.350(h)
was properly calculated in conformity with the requirements of
section 17(j) of the Act, 29 UbS.C. 5 666(j), and is affirmed.
Citation 1. Item 4a
80 Respondent was in serious violation of the
standard set out at 29 C.F.R. 5 1926.404(b)(l)(i).
Citation 1. Item 4b
90 Respondent was in serious violation of the
standard set out at 29 C.F.R. Q 1926.405(g)(2)(iv). The proposed
grouped penalty of $3,000.00 for respondent's violations of
1926.404(b)(l)(i) and 1926.405(g)(2)(k) was properly calculated
in conformity with the requirements of section 17(j) of the Act,
29 U.S.C. Q 666(j), and is affirmed.

                           27

Citation 1, Item 5

      10   l   Respondent was in serious violation of the

standard set out at 29 C.F.R. 5 1926.451(a)(2). The proposed
penalty of $900.00 for respondent's violation of 1926,451(a)(2)
was properly calculated in conformity with the requirements of
section 17(j) of the Act, 29 U.S.C. Q 666(j), and is affirmed 0
Citation 1, Item 6
110 Respondent was in serious violation of the
standard set out at 29 C.F.R. Q 1926.451(a)(4). The proposed
penalty of $3,000.00 for respondent's violation of >

1926.451(a)(4), was properly calculated in conformity with the
requirements of section 17(j) of the Act, 29 U.S.C. Q 666(j), and
is affirmed.
Citation 1, Item 7
12 l Respondent was in serious violation of the
standard set out at 29 C.F.R. Q 1926.500(c)(l). The proposed
penalty of $900.00 for respondent% violation of 1926.500(c)(l)
was properly calculated in conformity with the requirements of
section 17(j) of the Act, 29 U.S.C. Q 666(j), and is affirmed 0
Citation 2, Item 1
130 Respondent was in other-than-serious violation of
the standard set out at 29 C.F.R. fi1926.152(a)(l). The $0
proposed penalty for respondent's violations of 1926.152(a)(l)
was properly calculated in conformity with the requirements of
section 17(j) of the Act, 29 U.S.C. 5 666(j), and is affirmed 0

                               28

Citation 2, Item 2
14 l Respondent was in other-than-serious violation of
the standard set out at 29 C.F.R. Q 1926.1051(a). The $0
proposed penalty for respondent's violation of 1926,1051(a) was

properly calculated in conformity with the requirements of
section 17(j) of the Act, 29 U.S.C. 8 666(j), and is affirmed.
Citation 2, Item 3
15 l Respondent was in other-than-serious violation of
the standard set out at 29 C.F.R. § 1926.1052(c)(1). The $0

proposed penalty for respondent% violation of 1926,1052(c)(l)
was properly calculated in conformity.with the requirements of
section 17(j) of the Act, 29 U.S.C. 5 666(j), and is affirmed.
Citation 2, Item 4
16 0 Respondent was in other-than-serious violation of
the standard set out at 29 C.F.R. § 1926.1053(b)(13). The $0
proposed penalty for respondent's violation of 1926,1053(b)(13)
was properly calculated in conformity with the requirements of
section 17(j) of the Act,
1 29 U.S.C. § 666(j), and is affirmed.

                                ORDER
      1   l       All items of Citation 1 are affirmed as serious

violations of the Act.
2 l All items of Citation 2 are affirmed as other-
than-serious violations of the Act.

                                  29

30 A total civil penalty of $13,200 is assessed.
It is so ORDERED.

Dated:

                         30