Ringland-Johnson, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Ringland-Johnson employees poured concrete while standing on planks laid across a scaffold inside a circular concrete structure. Gaps between the planks were 30 to 40 inches wide, and employees could fall 19.5 feet; an elevated runway also lacked guardrails, and the scaffold had no ladder or equivalent access. The Commission held that no specific standard required tight planking on this type of scaffold, so the general duty clause applied to the grid hazard. It also allowed the Secretary to correct the runway standard from section 1926.500(d)(1) to section 1926.500(d)(2), finding that the employer had notice of the condition and was not prejudiced. The Commission affirmed all three violations and assessed penalties totaling $605.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.500(d)(2); 29 C.F.R. § 1926.451(a)(13)
• Outcome: A serious general-duty violation and two nonserious scaffold violations were affirmed, with penalties of $500, $65, and $40.
• Key point: The general duty clause covered the wide plank gaps because no specific scaffold standard addressed that condition, while the cited runway standard could be corrected without prejudice.

Full text (OSHRC public release)

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EN-US
X-NONE
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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

������������������������ v.

OSHRC DOCKET NO. 3028

RINGLAND-JOHNSON, INC.,

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

June 16, 1976

�

DECISION

�

BEFORE BARNAKO, Chairman; MORAN and
CLEARY, Commissioners.

BARNAKO, Chairman:

A
February 27, 1974, report of Administrative Law Judge Alan M. Weinman is before
this Commission for review pursuant to section 12(j) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter �the Act�). Judge
Weinman would vacate a serious citation which alleged a violation of section
5(a)(1) of the Act, and item 2 of a nonserious citation which alleged a
violation of 29 C.F.R. 1926.500(d)(1). He would affirm item 1 of the nonserious
citation which alleged a violation of 29 C.F.R. 1926.451(a)(13) and would
assess a penalty of $40. For the reasons set forth herein, we adopt Judge
Weinman�s recommendation as to item 1 but conclude that he erred in
recommending that the serious citation and item 2 of the nonserious citation be
vacated. [1]

The
facts are these: Respondent was engaged in construction work on a circular
concrete structure or bin which measured approximately 45 feet in diameter.
Inside the bin, five men were observed pouring pumped-in concrete into forms
while standing on 2 x 10 planks. The planks were laid as a wood grid across a
tubular welded scaffold frame which served as a temporary work surface. The
planks were laid sufficiently far apart from each other to result in gaps 30 to
40 inches wide, through which employees could fall to the ground level 19��
feet below. When work was completed at one form, the employees would move the
planks to the area close to the next form.

A
ten-foot-long runway consisting of two 2 x 10 planks ran between a scaffold
platform outside of the bin and the grid on which employees were working inside
the bin. The runway was not equipped with guardrails and was 19�� feet above
the ground. The runway provided the most direct and convenient route between
the grid inside the bin and the scaffold outside the bin. The hose through
which the concrete was being pumped ran alongside the runway.

The
scaffold inside the bin was not provided with a ladder. Employees used the
horizontal support rungs on the ends of the scaffold frame as a means of
ascending and descending in the bin. The support rungs were spaced at varying
intervals, ranging from 17 to 27 inches. Some of the rungs were only 6 inches
wide.

On
these facts, Respondent was issued a serious citation alleging a violation of
the general duty clause [2]
on the basis that the wood grid system on which employees were working
constituted a recognized hazard causing or likely to cause death or serious
physical harm. The nonserious citation alleged violations of the special duty
clause [3]
in that the runway was not equipped with guardrails contrary to 29 C.F.R.
1926.500(d)(1) and in that a ladder or its equivalent was not provided on the
scaffold inside the bin contrary to 29 C.F.R. 1926.451(a)(13).

ALLEGED
VIOLATION OF SECTION 5(a)(1)

Judge
Weinman found that the conditions as alleged in the serious citation existed:
that is, that employees were exposed to falls of 19�� feet due to unguarded and
uncovered gaps in the wood grid on which they were working. He further found
that the condition constituted a recognized hazard likely to cause death or
serious physical injury. Nevertheless, he would vacate the citation since he
agreed with Respondent�s contention that a specific standard, 29 C.F.R.
1926.500(b)(1), applied. [4]
This standard is codified in Subpart M of Part 1926, and the Subpart is
entitled �Floor and Wall Openings, and Stairways.� Subparagraph 500(b)(1)
provides in pertinent part that �floor openings shall be guarded by a standard
railing and toeboards or cover.� A floor opening is defined at 29 C.F.R. 1926.502(b)
as �an opening measuring 12 inches or more in its least dimension in any floor,
roof or platform through which persons may fall.� A platform is defined in 29
C.F.R. 1926.502(e) as �a working space for persons, elevated above the
surrounding floor or ground, such as a balcony or platform for the operation of
machinery and equipment.� The Judge concluded from these definitions that the
grid on which the employees were working was a platform and therefore that the
gaps between the planks were floor openings, subject to the requirements of
1926.500(b)(1).

The
Judge determined correctly that the grid was �a working space for persons . .
.� such as a �. . . platform� but we do not agree that subparagraph 500(b)(1)
applies. Rather what is involved here is the working surface of a scaffold,
specifically, the working surface of a tubular welded scaffold. And a scaffold
is defined at 29 C.F.R. 1926.452(b)(27) as

Any temporary
elevated platform and its supporting structure used for supporting workmen or
materials or both.

�

As
is evident from the facts the entire structure was portable and moved according
to the needs of the job. Thus it was a temporary elevated platform within the
meaning of the term �scaffold� and not a platform having the degree of
permanency suggested by the words �operation of machinery and equipment� by
paragraph 502(e).

Since
we determine that the structure is a scaffold within the meaning of
subparagraph 452(b)(27), the question is whether any of the scaffolding
standards of 29 C.F.R. 1926.451 apply. � If
they do not, then, the general duty section applies [5]
so long as Complainant has proven its application.

Tubular
welded scaffolds in the Construction Industry are regulated by 29 C.F.R.
1926.451(d) and subparagraph (8) of paragraph (d) provides that �maximum
permissible spans or planking shall be in conformity with paragraph (a)(10)� of
section 451. The grid constitutes the planking. Paragraph (a)(10) provides that
planking shall be of scaffold grades or equivalent and it and paragraph (a)(11)
prescribes the maximum permissible spans for various size planks such as 2 x
10s for different loading conditions and lumber types. Paragraph (a)(12)
provides that planks shall be overlapped by 12 inches or secured from movement.
Obviously, overlapping applies to the plank ends; 2 x 10 planks cannot be
overlapped by 12 inches. Insofar as we are able to determine the Secretary has
not promulgated a standard that requires tight planking of the platform portion
of a tubular welded scaffold. In this regard we note that tight planking is
required for �manually propelled mobile scaffolds� (29 C.F.R. 1926.451(e)(4)),
�outrigger scaffolds� (29 C.F.R. 1926.451(g)(4)), �two point suspension
scaffolds� (29 C.F.R. 1926.451(i)(10)(ii), and the like.

Inasmuch
as we find that neither 1926.500(b)(1) nor any other standard applies to the
conditions here, [6] we conclude that section 5(a)(1)
of the Act applies. [7] Judge Weinman found that
the conditions as alleged in the serious citations existed. Regarding the
existence of feasible measures that would have reduced the existence of the
hazard, the compliance officer testified that Respondent would not have been
issued a citation if the planks had been laid so that the spaces were not large
enough for an employee to fall through. Consequently, we find that Respondent
was in violation of the general duty clause based on the facts as found by the
Judge.

We
turn now to the assessment of an appropriate penalty. Respondent is of moderate
size, employing between 65 and 200 employees. It does not have a prior history
under the Act and its good faith was not questioned. However, the gravity of
the violation was high. Five men were exposed to falls while working on boards
which were laid approximately 30 to 40 inches from each other. On balance, we
conclude that a penalty of $500 is appropriate and will serve the purposes of
the Act.

ALLEGED
NONSERIOUS VIOLATION OF 29 C.F.R. 1926.500(d)(1)

Respondent
was cited for a nonserious violation of 1926.500(d)(1) in that a runway was not
equipped with guardrails of any kind. Judge Weinman would vacate this item of
the citation on the basis that 1926.500(d)(2) applies to runways. [8]
In this regard, he denied the Secretary�s motion, made during the course of the
hearing, to amend the citation and complaint to allege the applicable standard.
However, he acknowledged that Respondent would not be prejudiced by the amendment.

On
review, the Secretary urges that the Judge�s denial of its motion to amend was
an abuse of discretion since even the Judge found Respondent would not be
prejudiced by an amendment. Respondent contends that the motion was untimely in
that the Secretary�s failure to notice the mistake in the cited standard prior
to the time of the hearing was unjustified.

We
conclude that the Judge erred in refusing to permit an amendment. The citation
and complaint both contained descriptions of the alleged violation which
apprised Respondent of the condition which was the subject of the citation. The
citation of the incorrect standard was shown to be due to inadvertence rather
than any attempt to mislead Respondent. In such circumstances, leave to amend
should be freely given. See Rule 15(a) of the Federal Rules of Civil Procedure.
Therefore, we reject the Judge�s recommendation and grant the Secretary�s
motion to amend the citation and complaint to allege a violation of
1926.500(d)(2).

The
preponderant evidence establishes that Respondent was in violation of
1926.500(d)(2). It was undisputed that the runway lacked guardrails. We have
recently stated that exposure to hazard is to be determined by a rule of
access. Gilles & Cotting, Inc ., No. 504, BNA 3 OSHC 2002, CCH OSHC
para. 20,448 (Feb. 20, 1926). In this case, five employees were working in
close proximity to the runway. The runway provided the most convenient and
direct passage between the wood grid inside the bin and the scaffold outside
the bin. On the basis of these facts, we find that access has been established.
In any event, Respondent�s job superintendent admitted to the compliance
officer during the inspection that employees used the runway. [9]
Accordingly, we find a violation of 1926.500(d)(2).

We
turn now to the assessment of an appropriate penalty for the violation.
Respondent is of moderate size, has no prior history, and its good faith has
not been questioned. The gravity of the violation is moderately high. The
runway was entirely unguarded and was located 19�� feet above ground level. On
balance, we conclude that a penalty of $65 is appropriate and will serve the
purposes of the Act.

ALLEGED
NONSERIOUS VIOLATION OF 29 C.F.R. 1926.451(a)(13)

Respondent
was cited for a nonserious violation of 1926.451(a)(13) [10]
in that the scaffold was not provided with an access ladder or its equivalent.
Judge Weinman would affirm this violation, finding that the horizontal support
rungs on the ends of the scaffold frames did not provide means of access
equivalent to that provided by a ladder. He would assess a penalty of $40.

On
review, Respondent urges primarily that the scaffold framework did provide an
equivalent means of access. [11]
We determine that, contrary to Respondent�s contention, the Judge�s finding
that the support rungs did not provide an equivalent means of access to the
scaffold is supported by preponderant evidence. Accordingly, we will not
disturb the finding. Particularly persuasive in this regard is the unrebutted
testimony that the rungs were spaced at varying intervals and some were only
six inches wide. Consequently, we adopt the Judge�s recommendation that
Respondent was in violation of 1926.451(a)(13) and that a penalty of $40 be
assessed.

Accordingly,
we find that Respondent was in violation of section 5(a)(1) of the Act and
assess a $500 penalty therefor. We further find that Respondent was in
nonserious violation of 29 C.F.R. 1926.500(d)(2) and 29 C.F.R. 1926.451(a)(13)
and assess penalties of $65 and $40 respectively. It is so ORDERED.

�

FOR THE COMMISSION:

�

William S.
McLaughlin

Executive
Secretary

DATE: JUN 16,
1976

�

MORAN,
Commissioner, Concurring in Part, Dissenting in Part:

The
disposition [12] ordered in Judge
Wienman�s decision is correct and should be affirmed. [13]
Accordingly, I concur with the Commission�s affirmance of a nonserious
violation of 29 C.F.R. � 1926.451(a)(13). I disagree, however, with the
Commission�s action on the remaining charges.

My
colleagues err in finding that respondent violated 29 U.S.C. � 654(a)(1).
Although they correctly conclude that no specific standards apply to the
alleged violation, they incorrectly hold that the testimony of complainant�s
inspector established �the existence of feasible measures that would have
reduced the existence of the hazard.� The majority states that the inspector
testified that respondent would not have been cited if planking �had been laid
so that the spaces were not large enough for an employee to fall through.� This
is wholly inaccurate. The inspector testified only that a serious citation would
not have issued if a man could not have fallen through the holes, he said
nothing about planking, nor did he indicate that a citation for a nonserious
violation would not have been issued in that instance.

In
National Realty and Construction Company, Inc. v. OSAHRC 409 F.2d 1257,
1268 (D.C. Cir. 1973) the Court specifically held that

�[T]he Secretary
must be constrained to specify the particular steps a cited employee should
have taken to avoid citation, and to demonstrate the feasibility and likely utility
of those measures.�

Complainant
herein has simply not met this burden, and Messrs. and Cleary are acting
contrary to the following admonition in National Realty by applying their own
theory to perfect complainant�s case:

�Only by requiring
the Secretary, at the hearing, to formulate and defend his own theory of what a
cited defendant should have done can the Commission and the courts assure
even-handed enforcement of the general duty clause.�

�

489 F.2d at 1268.

�

This
same majority recognized the efficacy of the National Realty ruling vis-a-vis
the Court�s concern that employers should have of the means for compliance in Secretary
v. Ace Sheeting & Repair Company OSAHRC Docket No. 5284, December 31,
1975. By discovering � measures� in the instant case, however, the Commission
majority digressed therefrom by subscribing to the deus ex machina theory of
evidence.

I
also take exception to the majority�s affirmance of the citation for nonserious
violation of 29 C.F.R. � 1926.500(d)(2). The citation pertaining to this item
alleged that:

�A two-plank
(2″� x 10″� wide runway connecting a scaffold platform and an
elevated wooden grid, 19 feet, 6 inches above ground level, was not equipped
with guardrails.�

My
colleagues affirm the citation by determining that employee access to the
unguarded runway is established because (1) it provided the most convenient and
direct passage between the wood grid inside the bin and the scaffold outside
the bin, and, (2) the contradictory evidence presented by respondent�s superintendent
was not credible. I disagree with that determination.

My
reasons for rejecting the Barnako-Cleary crystal ball �access� rule in favor of
a rule that requires complainant to establish actual employee exposure are
fully set forth in Secretary v. Gilles & Cotting, Inc ., OSAHRC
Docket No. 504, February 20, 1976 (dissenting opinion). Since the evidence in
this case does not establish that any of respondent�s employees were actually
exposed to the unguarded runway, the citation should be vacated. In addition,
however, I am constrained to comment on my colleagues� methodology in arriving
at their credibility determination. [14]

The
majority first states that respondent�s superintendent admitted to the
inspector during the inspection that employees used the runway. In order to
maintain public confidence in the Commission�s fairness in considering the
evidence, they state at footnote 9 that:

�Although the job
superintendent contradicted this statement at the hearing by testifying that he
did not recall any employee using the runway, Judge Weinman questioned the
superintendent�s testimony at the hearing as generally incredible . We
will not disturb a Judge�s credibility determination.� (Emphasis supplied.)

�

What
Messrs. Barnako and Cleary have done in this instance, however, is to
characterize specific testimony given in regard to the 29 U.S.C. � 654(a)(1)
violation as omnipresent in the record. This is both unfair and false. Judge
Wienman, whose decision is attached hereto as Appendix A, did not find the
superintendent�s testimony �generally incredible,� but instead found that it
was not credible with respect to the size of the floor openings which were the
subject of the general duty clause violation. The Judge made no finding of
facts regarding the 29 C.F.R. � 1926.500(d)(2) charge. Nevertheless, my
colleagues discern no distinction in their haste to convict and disregard those
basic evidentiary considerations which most adjudicators adhere to as
fundamental to due process.

Accordingly,
I do not join in the majority�s affirmance of the above-mentioned charges
because to do so would be to adopt rulings which are not supported in law or
fact.

�

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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

������������������������ v.

OSHRC DOCKET NO. 3028

RINGLAND-JOHNSON, INC.,

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

February 27, 1974

�

DECISION AND ORDER

�

APPEARANCES:

STEPHEN REYNOLDS, Esquire, United
States Department of Labor, Office of the Solicitor, Kansas City, Missouri for
the Secretary of Labor

I. JOHN ROSSI, Esquire, P. O. Box
631, Des Moines, Iowa, for the Respondent

�

STATEMENT
OF THE CASE

Alan M. Wienman,
Judge, OSAHRC:

This is a proceeding pursuant to Section 10 of the
Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter
called the Act) contesting Citations issued by the Complainant against the
Respondent under the authority vested in Complainant by Section 9(a) of that
Act. One Citation for Serious Violation alleges on the basis of an inspection
of a workplace under the ownership, operation or control of Respondent located
at Clinton, Iowa that the Respondent violated Section 5(a)(1), the General Duty
Clause of the Act. A second Citation is for Other Than Serious Violations and
alleges that the Respondent violated the Act by failing to comply with certain
Occupational Safety and Health Standards promulgated by the Secretary pursuant
to Section 6 thereof. Both Citations were issued May 2, 1973.

The
Citation for Serious Violation sets forth the alleged violation in the
following form:

Standard or
regulation allegedly violated

Date on which
alleged violation must be corrected

Description of
alleged violation

Public Law 91�596, Section 5(a)(1), General Duty Clause of
the Act

Immediately Upon Receipt Of This Citation.

(Building #217.) A wooden grid system supported by tubular
welded frame scaffolds at a height of 19 1/2 feet had openings large enough
for employees to fall through. A total of five men were working from this
grid (concrete was being placed in tubular forms). At a given time, four men
together would be handling and/or holding a line from a concrete pump.

The
alleged violation in this citation was cited from the �Occupational Safety
& Health Act of 1970� Public Law 91�596, dated December 29, 1970.

The
Citation for Other Than Serious Violations sets forth the alleged violations in
the following form:

Item
number

Standard
of regulation allegedly violated

Date on which
alleged violation must be corrected

Description of
alleged violation

1

29 CFR 1926.451(a)(13), page
27535, Column 3

Immediately Upon Receipt Of This Citation

(Building #217.) Two ironworkers had to climb on scaffold
frames to reach their work areas. The scaffold frames were six feet and six
inches high per frame and were built three frames high. No access ladder was
provided for the men, and the six foot and six inch scaffold frames do not
provide equivalent safe access because of their design.

2

29 CFR 1926.500(d)(1), page
27543, Column 3

Immediately Upon Receipt Of This Citation

(Building #217.) A two-plank (2″ x 10″ wide)
runway connecting a scaffold platform and an elevated wooden grid, 19 feet, 6
inches above ground level, was not equipped with guardrails.

The
alleged violations in this citation were cited from the Federal Register, dated
December 16, 1972, Volume 37, Number 243, Part II, Regulations for
Construction.

The
standard codified as 29 CFR 1926.451(a)(13) provides as follows:

1926.451
Scaffolding.

(a) General
Requirements . . .

(13) An access
ladder or equivalent safe access shall be provided.�

The
standard codified as 29 CFR 1926.500(d)(1) provides as follows:

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

�

Pursuant to enforcement procedures set forth in Section
10(a) of the Act, Respondent was notified by letter dated May 2, 1973 from
Warren Wright, Area Director, Occupational Safety and Health Administration,
U.S. Department of Labor that he proposed to assess a penalty of $500.00 for
the alleged serious violation, penalties of $40.00 and $65.00, respectively,
for Item 1 and Item 2 of the Citation for Other Than Serious Violations.

Respondent filed a timely Notice of Contest in which it
contested all Citation items and Proposed Penalties. After Complaint and Answer
had been filed by the parties, the case came on for hearing at Davenport, Iowa
on September 5, 1973.

THE ISSUES

The initial issues framed by the pleadings are whether
Respondent violated the Act as alleged in the Citations issued May 2, 1973,
and, if so, what penalties, if any, are appropriate therefor.

Additional issues were raised at the close of
Complainant�s case when Respondent made several Motions for dismissal which
were taken under advisement. In substance, Respondent�s Motions urged:

(a) That the
entire matter be dismissed because the Citations failed to state the date the
alleged violations occurred;

�

(b) That Item 2
of the Citation for Other Than Serious Violation be dismissed because the
allegation of a violation of 29 CFR 1926.500(d)(1) in Paragraph IV(a) of the
Complaint refers to employees being exposed to an allegedly dangerous condition
while the Citation does not refer to employee exposure;

�

(c) That the
allegation of a violation of the General Duty Clause, Section 5(a)(1) of the
Act, be dismissed because there was a specific job safety standard applicable
to the conditions described in the Citation for Serious Violation;

�

(d) That Item 2
of the Citation for Other Than Serious Violation be dismissed because the
standard cited, 29 CFR 1926.500(d)(1), was acknowledged to be an incorrect
reference by Complainant; (Respondent further moved that Complainant�s Motion
to Amend the Citation and substitute a reference to 29 CFR 1926.500(d)(2) in
place of 29 CFR 1926.500(d)(1) be denied.)

�

*3 (e) That Item
1 of the Citation for Other Than Serious Violation be dismissed because the
cited regulation, 29 CFR 1926.451(a)(13), is unenforceably vague.

�

In his Brief Counsel for Respondent raised additional
issues relating to�

(1) The conduct
of the inspection insofar as it resulted from the Compliance Officer visiting
the worksite area for the purpose of inspecting another employer pursuant to an
employee complaint;

�

(2) The
propriety and legal affect of Paragraph VII of the Complaint which warned that
the description of the violations had been slightly changed and attempted to
amend the Citation to conform to the allegations of the Complaint �insofar as
the Citation may be inconsistent with . . . this Complaint.�

�

SUMMARY OF THE EVIDENCE AND DISCUSSION

The Inspection

Uldis Sid Levalds, OSHA Compliance Officer, testified he
inspected Respondent�s construction site at 1250 Beaver Channel Parkway,
Clinton, Iowa on April 12, 1973 (T. 8). Levalds had come to the area because of
a complaint filed by an employees� union of Clinton Corn Products (T. 29), and
he found some construction work going on within the food company plant (T. 44).
Levalds was accompanied by a representative from Clinton Corn Products who led
him to a field office shanty where he met Duane Lord, identified as a
superintendent with Ringland-Johnson, Inc. Levalds presented his credentials to
Lord, explained the purpose of the visit as a general type inspection and asked
Load to show him his work areas. They then proceeded to look at two circular
concrete structures that constituted Respondent�s work areas (T. 9).

Respondent urges the proposition that since the original
inspection of Clinton Corn Products was initiated by an employee complaint
pursuant to Section 8(f)(1) of the Act, the Compliance Officer�s activities had
to be confined to the special Section 8(f)(1) inspection. The basic premise of
this argument is that Section 8(f)(1) serves to limit the Secretary�s
inspection activities. This argument was considered and rejected by the
Commission in the case of Secretary of Labor v. Aluminum Coil Anodyzing Corp.,
OSAHRC Docket No. 829. In that Decision Commissioner Van Namee pointed out that
while Section 8(f)(1) imposes a specific duty upon the Complainant to conduct a
�special inspection� when certain specific conditions precedent are met,
Section 8(f)(1) imposes no limitation upon the Secretary�s broad authorization
to make inspections and investigations as empowered by Section 8(a). �According
to the plain terms of this section, the only limitations on his authority are
that inspections be �within reasonable limits� and made �during regular working
hours and at other reasonable times.��

That the Compliance Officer was in the vicinity of
Respondent�s worksite as a result of a Section 8(f)(1) employee complaint
related to another employer is happenstance. Absent a showing that the
Secretary has violated the conditions of Section 8(a), Respondent is without
basis for objecting to the inspection.

The Citations

The Citations issued subsequent to Mr. Levalds�
inspection bore the date they were issued, May 2, 1973, but in describing the
alleged violations did not specify the date of the inspection. Respondent
contends that the absence of an inspection or occurrence date on a Citation
constitutes a failure to comply with the provisions of Section 9(a) of the Act
which requires that �each Citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the
provision of the Act, standard, rule, regulation, or order alleged to have been
violated.�

We agree with Respondent�the Citations herein did not
comply with provisions of the Act�but are constrained to deny relief on this
ground. The reasons for both agreeing with Respondent and ruling adversely to
his position warrant amplification.

First, the Secretary�s practice of issuing citations
without specifying an inspection or occurrence date is to be condemned. Two
separate sections of the Act emphasize the importance Congress placed on the
time interval between inspection and citation. Section 9(c) provides that �No
citation may be issued . . . after the expiration of six months following the
occurrence of any violation.� Section 9(c) is a statute of limitations, Secretary
of Labor v. Chicago Bridge and Iron Company , OSAHRC Docket No. 744. A
citation issued in violation of Section 9(c) is clearly illegal, but a
Respondent cannot ascertain from the face of the citation whether it has been served
with a valid instrument under the present OSHA practices.

Section 9(a) of the Act directs the Secretary to issue
citations �with reasonable promptness.� The Commission has construed this
section to apply to the time period for performing the ministerial tasks
involved in issuing a citation after Complainant has determined that a
violation has occurred. Chicago Bridge and Iron, supra, fixes a comparatively
brief period for this function.

An argument might be constructed that it is unnecessary
for Complainant to specify the inspection date on a citation because the
employer earlier was given notice of and an opportunity to participate in the
inspection under the terms of Section 8(e). [15]
The difficulty with this reasoning is the decision in another skirmish
involving the Secretary of Labor v. Chicago Bridge and Iron, OSAHRC Docket No.
244, wherein it was ruled that the language of Section 8(e) is directory only.
Conceivably an inspection of an employer�s work area may be conducted without
his knowledge, and much mischief will follow if the Secretary is later
permitted to issue a citation which does not inform the Respondent of the
inspection date. [16]

We are persuaded that the Citation in the instant case
failed to comply with the Section 9(a) requirement that �Each citation . . .
shall describe with particularity the nature of the violation,� and
Respondent�s proper remedy was a timely motion to vacate. It would appear,
however, that under the guidelines enunciated in Secretary of Labor v. Chicago
Bridge and Iron, OSAHRC Docket No. 744, issues relating to the validity of the
citation should be raised early in the proceedings, i.e., in the Notice of
Contest or in the employer�s Answer. The Respondent herein did not raise the
issue until after the close of Complainant�s case at the hearing�long after it
had been informed of the occurrence date by allegations in the Complaint and
testimony of the Compliance Officer. The motion was not timely made and must be
denied.

The Complaint and Amendment Issues

As noted, the Complaint filed June 8, 1973, alleged the
safety violations charged in the Citations occurred April 12, 1973. The
Complaint paragraphs setting forth the violations generally followed the descriptions
on the Citations but not in h � c
verba. Paragraph IV(a)(1), referenced to Item 1 of the Citation for Other Than
Serious Violation, was more economical in its language than the Citation
description. Paragraph IV(a)(2), referenced to Item 2 of the Citation for Other
Than Serious Violation, was larger than the Citation description, adding an
allegation that four laborers and one carpenter had been exposed to the
violation.

Paragraph VII of the Complaint acknowledged that the
descriptive portions of the Citation had been altered slightly and asserted
that the Citation �are hereby amended to conform to the allegations of the
Complaint.�

Respondent contends the changes in the Complaint
deprived it of due process and contravened Commission Rule 2200.33(a)(3) which
states:

(3) Where the
Secretary in his Complaint seeks to amend his citation or proposed penalty, he
shall set forth the reasons for amendment and shall state with particularity
the change sought.

We do not agree with Respondent that the Complaint
violates Commission Rules of Procedure. We note that Rule 2200.33(a)(2)
requires the Secretary to set forth �with particularity� matters which need not
be stated in the citation:

(2) The
complaint shall set forth all alleged violations and proposed penalties which
are contested, stating with particularity:

�

(i) The basis
for jurisdiction;

�

(ii) The time,
location, place and circumstances of each such alleged violation; and

�

(iii) The
considerations upon which the period for abatement and the proposed penalty on
each such alleged violation is based.

Quite obviously Rule 2200.33(a)(2) requires the
Secretary to allege additional facts in the Complaint which do not appear on
the Citation, but such allegations are not an �amendment� of the Citation within
the meaning of Rule 2200.33(a)(3). For instance, a fuller description of the
�circumstances� of the alleged violation does not constitute an amendment of
the citation as long as the substance of the charge is not changed. Thus it is
proper for the Complaint to set forth the number of employees exposed to an
allegedly unsafe condition although this circumstance is not detailed on the
Citation. �Amendment� is employed in Rule 2200.33(a)(3) within the frame of a
pleading amendment. In this sense, amendment is the correction of an error. Hardin
v. Boyd , 5 S. Ct. 771, 773, 113 U.S. 756; Shroyer v. Pittenger , 67
N.E. 475, 477, 31 Ind. App 158, citing Anderson, Law Dict .; Black ,
Law Dict .

Whenever the Secretary seeks to correct error in the
citation or proposed penalty, Rule 2200.33(a)(3) applies, and he must set forth
the reasons for the amendment and state with particularity the change sought.
When, as in the instant case, there is no attempt to correct the citation or
proposed penalty, the language employed in Paragraph VII of the Complaint is
unnecessary. When the Complaint does seek to correct error appearing on the
Citation, such language is futile because it fails to satisfy Rule
2200.33(a)(3). (See Secretary of Labor v. Martin Iron Works, Inc. ,
Docket No. 1690, wherein Judge Cronin condemned similar language in a Complaint
which sought to make major corrections in a Citation.)

In the instant case there was a bona fide attempt to
correct an error in the Citation later in the proceedings. During the
Compliance Officer�s testimony it came to light that he intended to charge
Respondent with a violation of regulation 29 CFR 1926.500(d)(2) but entered
1926.500(d)(1) on the penalty assessment sheet. (T. 20) The incorrect reference
was repeated in Item 2 of the Citation for Other Than Serious Violation and
Paragraph IV(a)(2) of the Complaint. The Secretary thereupon moved to amend the
Citation and Complaint.

Under the circumstances we feel the motion should be
denied. The customary test for such a proposed amendment is whether the
Respondent was surprised or prejudiced in its efforts to prepare its defense,
i.e., whether there was adequate notice of the nature of the charge. In all
probability there was little prejudice or surprise herein in view of the
detailed description of the violation of the Citation. Nevertheless it would be
poor practice to permit substitution of an entirely new charge midway in a hearing
for no more cause than the Secretary�s neglect to check a citation reference.
We are mindful of the huge volume of inspections conducted by OSHA officials
and the pressures under which their staffs work in order to issue citations
within the time limits prescribed by the Act. It would be remarkable if a
substantial number of errors were not made in documents prepared under these
circumstances. But the Secretary�s failure to detect erroneous references in
contested citations prior to the hearing is neither remarkable nor excusable.
The Citation herein was issued on May 2, 1973, the Complaint was filed June 8,
1973 and hearing was held September 5, 1973. Time enough to catch the error,
and reason enough to deny the amendment. Item 2 of the Citation for Other Than
Serious Violation and the $65.00 penalty proposed thereon will be vacated.

Citation for Serious Violation: The General Duty Clause

The Citation for Serious Violation, alleging a violation
of Section 5(a)(1) of the Act (the �General Duty Clause�) was related to the
conditions portrayed in the photographic exhibit G�4. Mr. Levalds testified he
observed and photographed five of Respondent�s employees standing on some grid
work consisting of pieces of lumber placed on top of the Safway scaffold frames
at a height of 19 feet 6 inches. The men were pouring concrete into circular
forms or columns. There were numerous openings in the grid work, 30 to 40
inches in size, through which a man could fall. (T. 21�23)

Levalds� testimony as to the size and location of the
openings appeared adequately confirmed by the photographic exhibit, although
Respondent�s witness Lord maintained there were no openings large enough for a
man to fall through �where the men was working . . . in my opinion.� (T. 66,
74) The undersigned Judge Frankly found Lord�s testimony incredible (T. 80) and
would resolve the factual issues in Complainant�s favor. The evidence
established the existence of the conditions described on the Citation, but
raised a more difficult legal question, namely, was a citation for violation of
the General Duty Clause inappropriate because a specific safety regulation was
applicable to the condition charged.

The law is clear that

where any
occupational safety and health standard has been promulgated under the authority
of Section 6 of the Act, which regulates a specific type of conduct, the
Complainant must cite all alleged failures to comply with such conduct under
that particular standard rather than the general duty clause. Secretary of
Labor v. Sun Shipbuilding and Drydock Company , OSAHRC Docket No. 161.

�

At the close of Complainant�s case Respondent moved for
dismissal of the General Duty Clause charge on the ground that if there was a
violation, it should have been cited under a specific regulation�either 1926.500(b)(8)
or 1910.28(a)(5) or 1910.23(a). And, in its Brief submitted subsequent to
review of the Transcript, Respondent suggested that perhaps 1926.500(b)(1) and
1926.500(c)(1) are more appropriate if there is a violation.

After careful review of the evidence and the above-cited
safety regulations, the undersigned Judge is persuaded that the Respondent
should have been charged with a serious violation of the safety regulation
codified as 29 CFR 1926.500(b)(1). The standards which appear under Subpart M�Floor
and Wall Openings, and Stairways�provide:

1926.500
Guardrails, handrails and covers.

�

(a) General
provision. This subpart shall apply to temporary or emergency conditions where
there is danger of employees or materials falling through floor, roof or wall
openings, or from stairways or runways.

�

(b) Guarding of
floor openings and floor holes. (1) 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.

�

1926.502.
Definitions applicable to this subpart.

�

(b) �Floor
opening��An opening measuring 12 inches or more in its least dimension in any
floor, roof, or platform through which persons may fall.

�

Compliance Officer Levalds testified that the grid
structure constituted a work platform in his opinion but stated that Respondent
was not cited under 1926.500 �because of some legal decision made previous to
this.� (T. 40�41) If there is any legal impediment to citing Respondent for not
covering or guarding floor openings (as defined in 1926.502(b) under the
provisions of 1926.500(b)(1)) we are not so advised by any authority submitted
in Complainant�s Brief. Complainant did point out that 1926.500(b)(8) was
inapplicable because it dealt with �floor holes��openings measuring less than
12 inches�but maintained a determined silence as to 1926.500(b)(1).

In complete fairness to Complainant it should be noted
that his discussion of the issue concluded by suggesting a remedial procedure
if it be found that some specific standard rather than Section 5(a)(1) was
applicable to the conditions, namely that Complainant be permitted to amend the
Complaint to conform to the evidence and allege violation of the applicable
standard. It is suggested that Secretary of Labor v. Brisk Waterproofing
Co., Inc . OSAHRC Docket No. 1046, is authority for such a procedure.

We do not agree. Although the Brisk Waterproofing
case parallels the instant proceedings in most major aspects, there is one
significant difference. The Respondent therein did not deny the substantial
allegations of the Citation and the Complaint but defended upon the narrow
ground that its acts did not constitute �a recognized hazard.� In the instant case
Respondent denied every allegation relating to the Citation for Serious
Violation and defended most vigorously. Whether Respondent could have erected
additional defenses had it been cited for a specific violation of 29 CFR
1926.500(b)(1) no one can say, but it was neither charged with that
responsibility nor given that opportunity. Rule 15(b) of the Federal Rules of
Procedure may perhaps sanction amendment on more liberal terms than indicated
in Brisk Waterproofing, but we are not prepared to extend those terms to a
proceeding where the Secretary pleaded and tried a case with seemingly studied
ignorance of the applicable standard. Complainant�s conditional request for
leave to amend and plead a specific Section 5(a)(2) violation will be denied.

Citation Item Number 1: 29 CFR 1926.451(a)(13)

Compliance Officer Levalds testified that he and Mr.
Lord ascended a wooden ladder to reach the top of a circular concrete wall.
Inside the wall structure were some Safety tubular welded metal frame
scaffolds, each 6 feet 6 inches in height. Three scaffold sections were
connected for a total height of 19 1/2 feet. Levalds observed two men working
at the bottom of the concrete structure and asked Lord if the scaffolds were
used by the men to gain access to their work area. Lord answered in the
affirmative (T. 10). The men were identified by Lord as his employees (T. 11).

Levalds did not actually observe any men climbing or
descending the scaffold frames, but he repeated his testimony that Lord
indicated Respondent�s employees use the frames as a means of access to their
work areas (T. 45�46).

In his testimony Lord corroborated the fact that the
Respondent�s employees use the scaffold as a means of access to get to the
bottom of the tank. (T. 65, 73)

Levalds also testified that he observed no other means
of access to the work area and that the configuration of the scaffold frames
did not come close to a ladder requirement in his opinion. The horizontal
spacings in the end frames were irregular. The first one measured 27 inches,
the second 22, and the third 17 (T. 10). Levalds also stated that studs for
cross bracing interfered with climbing action conducted on the horizontal
members and the least width was only six inches (T. 10).

Both Lord and Mr. Larry B. Johnson, Respondent�s
President, testified they had climbed the Safway scaffolds and believed they
were safe. (T. 68, 85) Johnson stated that he had never had any difficulty nor
did he ever see anyone fall or experience any difficulty and that the practice
had been going on for many years (T. 85). However, in cross-examination he
conceded that Safway manufactured a ladder for their scaffolds and that
Respondent did not have one present at the jobsite (T. 88).

At the close of Complainant�s case Respondent moved for
dismissal of the allegations of Citation Item Number 1 on the ground that 29
CFR 1926.451(a)(3) was too vague and indefinite to be enforceable, not giving
fair notice of the type of access which is forbidden. This motion will be
denied. The regulation is question has been frequently cited during the brief
history of the Act. On two separate occasions violations of 29 CFR
1926.451(a)(13) have been affirmed in cases reviewed by the Commission. See Secretary
of Labor v. Kehm Construction Company , Inc. (OSAHRC Docket Nos. 1209 and
1438), and Secretary of Labor v. Brisk Waterproofing Company, Inc .,
(OSAHRC Docket No. 1046). The later case is especially interesting since the
Commission reversed a decision that Respondent had violated General Duty Clause
and found the Respondent in violation of 29 CFR 1926.451(a)(13). A $600.00
penalty was assessed for the violation.

In its brief Respondent raises a number of objections to
the language of the regulation, which provides:

1926.451
Scaffolding.

�

(a) General
requirements. (1) Scaffolds shall be erected in accordance with requirements of
this section.

�

(13) An access
ladder or equivalent safe access shall be provided.

�

Among other grounds it is urged that one must resort to
other sections of the regulations in order to ascertain the meaning of �access
ladder� and that the phrase �equivalent safe access� provides no guide for the
Respondent to ascertain the proscribed conduct.

We are not persuaded that either �ladder� or
�equivalent� are such ambiguous terms that Respondent would not be guided by
applying the ordinary definitions. Webster�s Third New International Dictionary
(1965) defines �ladder� as follows:

�1. a. usu.
portable structure for use of climbing up or down that consists commonly of two
parallel side pieces of wood, metal, or rope, joined at short intervals by a
series of cross pieces that serve as rest for the feet.�

�

The same dictionary also defines �equivalent� as �corresponding or
virtually identical, esp. in effect or function.�

Respondent argues that the scaffolding structure itself
constituted a �fixed� ladder within the meaning of regulation 29 CFR
1926.450(a)(5) and notes the reference to National Standards Institute,
A14.3�1956, Safety Code for Fixed Ladders, in that regulation.

We note that the Cited ANSI publication contains the
following definitions of �equivalent� and �ladder�:

1.6 Equivalent.
The word �equivalent� in this code shall be interpreted to mean alternative
designs or features which will provide equal degree of safety.

�

2.1 Ladder. A ladder
is an appliance usually consisting of two side rails joined at regular
intervals by cross pieces called steps, runs, or cleats, on which a person may
step in ascending or descending.

�

The structure used by Respondent�s employees as a means
of access did not have side rails joined at short and regular intervals by its
cross pieces. It constituted a climbing hazard, a fact evidently recognized by
the manufacturer who fabricated a specific ladder for this type of scaffolding.
A wide range of penalties has been assessed in other cases for violation of the
cited regulation, from zero to $600.00. The $40.00 penalty proposed by the
Complainant appears appropriate in view of the hazard of a fall from heights up
to 19 1/2 feet and should be affirmed.

In affirming the Citation and proposed penalty we are
mindful of Respondent�s argument that Chapter X(c)(1) of the Compliance
Operations Manual, a publication promulgated by the Secretary as a guideline
for implementing the Act, is said to bar Compliance Officers for citing
employers for violation not actually observed. This statement is not accurate.
The Compliance Manual section cited makes actual observance a general rule
subject to exceptions. In the instant case employee exposure was admitted, and
the Compliance Officer would have shirked his duty had he elected to ignore the
violation.

FINDINGS OF FACT

1. The Respondent, Ringland-Johnson, Inc., a corporation
   with its principal office at 1523 S. Bluff Blvd., Clinton, Iowa, was at all
   times material hereto engaged in the business of general contracting.

2. On April 12, 1973 a number of Respondent�s employees
   were engaged in the construction of three circular concrete bins at a worksite
   at 1250 Channel Parkway, Clinton, Iowa. On said date Uldis Sid Levalds, OSHA Compliance
   Officer, conducted an inspection of the premises.

3. As a result of the aforesaid inspection Respondent
   was issued one Citation for Other Than Serious Violation alleging violations of
   the safety standards codified as 29 CFR 1926.451(a)(13) and 29 CFR
   1926.500(d)(1) and one Citation for Serious Violation alleging a violation of
   Section 5(a)(1) of the Act.

4. The evidence with respect to the alleged violations
   revealed:

(a) On April 12, 1973 Respondent�s employees were using
variously spaced horizontal support rungs on the ends of tubular, welded metal
scaffold frames as a means of obtaining access to their work areas. The spacing
between the ground and the first support is 27 inches; between the first
support and the second, 22 inches; and between the second support and the
third, 17 inches.

� (b) The evidence
failed to establish any violation of safety regulation 29 CFR 1926.500(d)(1),
the Compliance Officer testifying that the standard reference appearing on the
Citation and the Complaint was inadvertent and incorrect. Complainant moved to
amend the Citation and Complaint by substituting a reference to regulation 29
CFR 1926.500(d)(2) during the hearing, which Motion was opposed by Respondent.
The undersigned Judge took the Motion under advisement.

(c) On April 12, 1973 five of Respondent�s employees
were working on a grid work platform consisting of pieces of lumber laid on top
of tubular welded metal scaffold frames at a height of 19 feet 6 inches. There
were numerous openings in the platform, 30 to 40 inches in size, through which
a man could fall. At the conclusion of Complainant�s case Respondent moved to
dismiss the Citation for Serious Violation on the ground that a Citation for
violation of Section 5(a)(1) of the Act, the general duty clause, was
inappropriate because a specific safety regulation was applicable to the
conditions. The undersigned Judge took the Motion under advisement.

CONCLUSIONS OF LAW

1. At all times material hereto, the Respondent was an
   employer engaged in a business affecting commerce within the meaning of Section
   3 (5) of the Act. The Occupational Safety and Health Review Commission has
   jurisdiction of the parties and the subject matter herein.

2. On April 12, 1973 Respondent violated Section 5(a)(2)
   of the Act by its non-compliance with safety regulation 29 CFR 1926.451(a)(13)
   as described in Item 1 of the Citation for Other Than Serious Violation. A
   penalty of $40.00 is appropriate for said violation.

3. On April 12, 1973 Respondent was not in violation of
   safety regulation 29 CFR 1926.500(d)(1) as alleged in Item 2 of the Citation
   for Other than Serious Violation. The Motion to Amend Item 2 was not timely
   made and should be denied.

4. On April 12, 1973 the safety regulation codified as
   29 CFR 1926.500(b)(1) was applicable to the conditions described in the
   Citation for Serious Violation. The Motion to Vacate and Dismiss the Citation
   for Serious Violation should be granted, and Complainant�s request for leave to
   amend said Citation should be denied.

ORDER

Based on the above Findings of Fact and Conclusions of
Law it is ORDERED that:

1. Item 1 of the Citation for Other Than Serious
   Violation issued Respondent May 2, 1973 and the penalty proposed thereon are
   hereby affirmed.

2. Item 2 of the Citation for Other Than Serious Violation
   issued Respondent May 2, 1973 and the penalty proposed thereon are hereby
   vacated.

3. The Citation for Serious Violation issued Respondent
   May 2, 1973 alleging a violation of Section 5(a)(1) of the Act, and the penalty
   proposed thereon, are hereby vacated.

�

Alan M. Wienman

Judge, OSAHRC

DATE: FEB 27, 1974

[1]
As a threshold matter, Respondent raised at the hearing and argues on review
that the citations are void since they lacked the particularity required by
section 9(a) of the Act in that they failed to state the date of the
inspection. Judge Weinman, although finding that the citations did lack particularity,
rejected Respondent�s argument on the basis that it was not timely raised. We
hold that in this case the failure of the Secretary to specify an inspection
date in the citations did not render the citations fatally defective. We have
stated that the purpose of the particularity requirement is to insure that
Respondent is placed on notice regarding the alleged violation and that we can
look at some circumstances surrounding the citation in order to determine
whether notice has been given. B. W. Harrison Lumber Co., Inc ., No. 2200
(April 14, 1976). Here, Respondent had notice of the date of the subject
inspection since its representative accompanied the compliance officer on the
inspection and the evidence does not indicate that more than one inspection
occurred during the same period of time. Further, the complaint included the
date of inspection, thereby formally putting Respondent on notice of the date
of inspection, prior to the hearing.

[2]
29 U.S.C 654(a)(1).

[3]
29 U.S.C. 654(a)(2).

[4]
In its posthearing brief, the Secretary, while reasserting that section 5(a)(1)
of the Act applies to the situation, moved in the alternative for leave to
amend its citation and complaint to allege a violation of section 5(a)(2) of
the Act if a specific standard were found to be applicable. Judge Weinman
denied the motion based on a lack of consent to the amendment by the
Respondent. Because we find that the cited provision of the Act was applicable,
we need not reach the issue of whether leave to amend should have been granted.

[5]
Brisk Waterproofing Company, Inc., 3 OSAHRC 1132, BNA 1 OSHC 1263, CCH
OSHD para. 16,345 (1973).

[6]
On review Respondent also argues that 29 C.F.R. 1926.500(b)(8),
1910.28(a)(8)(1) and 1910.28(a)(8)(2) apply to the grid or platform involved
here. As discussed we do not find Subpart M of Part 1926 applicable. The
1910.28(a) standards are general industry standards for scaffolds, and what we
have said above concerning tight planking for tubular welded scaffolds used in
the construction industry also applies to the general industry standards. See
29 C.F.R. 1910.28(d)(10) and 28(a)(9). In any event 28(a)(8) is clearly
inapplicable since it deals with the stress grade of lumber used in
scaffolding.

[7]
See note 5 infra.

[8]
The standard at 1926.500(d)(1) requires in pertinent part that �every
open-sided floor or platform 6 feet or more above adjacent floor or ground
level shall be guarded by a standard railing, or the equivalent. . .� The
standard at 1926.500(d)(2) requires in pertinent part that �runways shall be
guarded by a standard railing, or the equivalent. . . �

[9]
Although the job superintendent contradicted this statement at the hearing by
testifying that he did not recall any employee using the runway, Judge Weinman
questioned the superintendent�s testimony at the hearing as generally
incredible. We will not disturb a Judge�s credibility determination. Northeast
Stevedoring Co., Inc. , 13 OSAHRC 105, BNA 2 OSHC 1332, CCH OSHD para.
19,001 (1974).

[10]
The standard at 1926.451(a)(13) requires that, for scaffolds, �an access ladder
or equivalent safe access shall be provided.�

[11]
On review, Respondent also reasserts its argument that the cited standard is
unenforceably vague because of the lack of guidelines regarding the
requirements for a ladder or its equivalent. We reject this argument for the
reasons assigned by Judge Weinman: that, considering common and industry
understanding, the words �ladder� and �equivalent� are not ambiguous and fairly
apprise employers of the conduct required of them.

[12]
Judge Wienman decided this case in accordance with the mandate of 29 U.S.C. �
659(c) which incorporates by reference the Administrative Procedure Act (APA)
provisions relating to administrative adjudications, 5 U.S.C. �� 554�557. The
APA specifies that, after a hearing has been held, the presiding hearing
officer �shall initially decide the case . . . that decision then becomes the decision
of the agency without further proceedings unless there is . . . review on
motion of the agency within time provided by rule,� 5 U.S.C. � 557, emphasis
supplied. Messrs. Barnako and Cleary, however, take a side-shot at the Judge�s
decision by referring to it in a demeaning and wholly out-of-place manner. They
refer, for example, to �Judge Wienman�s recommendation� and, at other places,
use such phrases as �Judge Wienman would vacate� and �he would affirm.� Never
once do they accord the Judge the courtesy of labelling his disposition by its
proper legal name: decision. I completely disassociate myself from their
erroneous and patronizing references to Judge Wienman�s decision and deplore
the inclusion in decisions of this Commission of such shabby treatment of a
Judge who�as Messrs. Barnako and Cleary well know�cannot respond.

[13]
While I agree with the Judge�s vacation of the citation for serious violation,
I do not join in his determination that respondent should have been cited under
the occupational safety and health standard set forth at 29 C.F.R. �
1926.500(b)(1) in lieu of 29 U.S.C. � 654(a)(1), the so-called general duty
clause.

[14]
Furthermore, I do not agree with my colleagues� views regarding the amendment
of citations. For an expression of my view on this matter, see Secretary v.
Warnel Corporation , OSAHRC Docket No. 4537, March 31, 1976 (dissenting
opinion).

[15]
(e) Subject to regulations issued by the Secretary, a representative of the
employer and a representative authority by his employees shall be given an
opportunity to accompany the Secretary or his authorized representative during
the physical inspection of any workplace under subsection (a) for the purpose
of aiding such inspection. Where there is no authorized employee
representative, the Secretary or his authorized representative shall consult
with a reasonable number of employees concerning matters of health and safety
in the workplace.

[16]
How does the employer ascertain the conditions existing at a time unknown in
order to determine whether to contest the citation? Worse yet, assume two
separate inspections of a jobsite, one of which was conducted without an employer�s
knowledge and resulted in the issuance of a citation. The employer would be
positively misled as to the operative facts. This sort of speculation is not
entirely fanciful in cases of large construction projects involving numerous
subcontractors with overlapping work areas.