THE VERNE-WOODROW COMPANY
OSHRC Docket No. 1607
Occupational Safety and Health Review Commission
July 13, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On March 26, 1973, Review Commission Judge James D. Burroughs issued a decision in this case. Thereafter, On April 3, 1973, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.
DISSENTBY: CLEARY
DISSENT:
CLEARY, COMMISSIONER, dissenting: I disagree.
Former Commissioner Burch ordered review of this case in order to determine whether evidence of record supports the citation for a serious violation of 29 CFR 1926.105(a). That Safety and Health Regulation for Construction reads as follows:
(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
Judge Burroughs found, and the record demonstrates, ". . . that four of respondent's employees were installing cross bracing between roof trusses at a height in excess of 25 feet above the ground. There were no scaffolds, catch platforms or temporary floors in use to afford protection against a fall. None of the employees wore safety lines or lanyards." In addition, it is undisputed that a safety net was not provided.
However, Judge Burroughs vacated the citation, which action has been affirmed by my colleagues, because there was no showing that it was impractical to use ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts. Despite the undisputed failure to utilize any of the safety devices included in the standard, the Judge held that proof of impracticality of the aforementioned safety equipment is a prerequisite to a violation for failure to utilize either a safety net or any of the alternative safety devices.
"[I]n construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light of the prime purpose of the egislation is to be employed." St. Marys Sewer Pipe Company v. Director of U.S. Bureau of Mines, 262 F.2d 378, 381 (3rd Cir. 1959) and authority cited therein. The intent of the standard n1 is that less complex and frequently more readily available safety equipment such as ladders, scaffolds, catch platforms, temporary floors, safety lines and safety belts be utilized where practical and that nets be provided when the other devices are not used because of their impracticality. The majority's interpretation renders the standard a nullity in contravention of both its intent and of the appropriate method of construction. See, St. Marys Sewer Pipe Company, supra. Whether safety belts, ladders, scaffolds, catch platforms, temporary floors and safety lines are impractical for use in respondent's work is irrelevant. The evidence demonstrates conclusively that none of these items were utilized by respondent. In the absence of these devices and a safety net, the violation is established.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 A standard promulgated pursuant to the Act has the force and effect of law. See, e.g. Lilly v. Grand Truck Western R. Co., 317 U.S. 481, 488 (1943), 1 Davis, Administrative Law Treatise, section 203 (1958).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Secretary of Labor is authorized by section 6 of the Act to promulgate occupational safety and health standards. The Secretary's interpretation of the standard is consistent with my interpretation as stated, supra. Administrative interpretation by an enforcement agency or by the agency which has oversight of a problem is controlling unless clearly erroneous and is entitled to great deference by a reviewing judicial body. n2 See, Udall v. Tallman, 380 U.S. 1, 16-17 (1965); Griggs v. Duke Power Co., 401 U.S. 8, 10 (1970).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 This well recognized legal principle which is applicable to reviewing courts is, at least by analogy, applicable to the quasi-judicial or administrative review by the Commission. Thus, we are obligated to defer to the Secretary with respect to the interpretation of standards promulgated by him.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I would vacate the Judge's decision and affirm the Secretary's citation for serious violation and proposed penalty.
[The Judge's decision referred to herein follows.]
BURROUGHS, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1390, (hereinafter referred to as the Act) to review two citations and a citation for serious violation issued by the Secretary of Labor hereinafter referred to as the complainant), pursuant to Section 9(a) of the Act, and the assessment of penalties in the aggregate amount of $620 proposed pursuant to Section 10(a) of the Act.
On the basis of an inspection on September 14, 1972, of the workplace under the ownership, operation, or control of the respondent located at Hamilton, Alabama, it is alleged that respondent violated Section 5(a)(2) of the Act by failing to comply with certain specified safety standards. A citation was issued to respondent on September 19, 1972, alleging a failure to comply with five (5) safety standards. The citation described the alleged non-serious violations as follows:
1. 29 CFR 1926.550(a)(14)(i)
Failure to provide fire extinguishers on crane.
2. 29 CFR 1926.550(a)(4)
Failure to post hand signals for cranes on project.
3. 29 CFR 1926.550(a)(6)
Failure to have record of annual inspection by competent persons of hoisting equipment and machines.
4. 29 CFR 1926.601(b)(8)
Failure to provide seat and safety belts on equipment transporting employees.
5. 29 CFR 1903.2
Failure to comply with posting requirements.
No penalties were proposed for any of the alleged nonserious violations set forth in the citation issued September 19, 1972.
A citation for serious violation was also issued to respondent on September 19, 1972, as a result of the inspection of September 14, 1972. The citation for serious violation alleged a violation of the safety standard published at 29 CFR 1926.105(a). The alleged violation was described as follows:
Failure to provide employees working in excess of 25 feet above ground or concrete floor (of pit) with safety nets, ladders, scaffolds, catch platforms, temporary floors or safety belts and safety lines to safeguard employees against falling.
A notification of proposed penalty issued on September 19, 1972, proposed a penalty of $500 for the alleged serious violation.
A second inspection of respondent's workplace located at Hamilton, Alabama, was conducted on September 28, 1972. As a result of the inspection, another citation was issued to respondent on October 6, 1972, alleging a non-serious violation of 29 CFR 1926.450(a)(1). The violation was described as follows:
Failure to provide ladders for access to all elevations where there are no stairway (permanent or temporary) or suitable ramps or runways provided.
A notification of proposed penalty was issued on October 6, 1972, proposing a penalty of $120.00 for the non-serious violation of 29 CFR 1926.450(a)(1).
As a consequence of the inspection of September 28, 1972, a citation for serious violation was also issued on October 6, 1972, alleging that respondent failed to correct the serious violation of 29 CFR 1926.105(a) set forth in the citation for serious violation issued September 19, 1972. A notification of failure to correct violation and of proposed additional penalty was issued on October 6, 1972, proposing an additional penalty of $1,000 for the failure to abate. The citation for serious violation and notification of additional penalty were subsequently withdrawn since respondent contested the citation for serious violation issued September 19, 1972, within fifteen (15) working days as provided by Section 10(a) of the Act (Tr. 6-7, 30).
By letter dated October 10, 1972, respondent timely notified the complainant that it wished to contest the citations issued September 19, 1972, and October 6, 1972, and the citation for serious violation issued September 19, 1972. The complainant advised the Occupational Safety and Health Review Commission of the notice of contest filed by respondent. The case was subsequently assigned to this judge for purposes of conducting a hearing pursuant to Section 10(c) of the Act. The hearing was held in Florence, Alabama, on February 21, 1973. No additional parties desired to intervene in the proceeding.
ISSUES
The primary issues for determination pertain to whether respondent committed violations of Section 5(a)(2) of the Act by failing to comply with the following safety standards:
1. 29 CFR 1926.550(a)(14)(i)
2. 29 CFR 1926.550(a)(4)
3. 29 CFR 1926.550(a)(6)
4. 29 CFR 1926.601(b)(8)
5. 29 CFR 1903.2
6. 29 CFR 1926.450(a)(1)
7. 29 CFR 1926.105(a)
If a violation of 29 CFR 1926.105(a) occurred, a further determination must be made as to whether the violation was a serious violation within the purview of Section 17(k) of the Act. If any violations occurred, a determination must be made as to the appropriate penalties, if any, to be asserted for the violations.
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the proceeding.
1. Respondent is engaged in the steel erection and crane rental business (Tr. 11). Its main office is located in Nashville, Tennessee (Tr. 10).
2. Respondent at all times pertinent to this proceeding has been an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act. Jurisdiction of the Commission has been admitted (Tr. 7).
3. On September 14, 1972, the complainant, through one of his authorized compliance officers, conducted an inspection of respondent's workplace located at Hamilton, Alabama (Tr. 10). Respondent was erecting a steel framework at the inspected workplace and employed approximately nineteen (19) people at the site (Ex. 1; Tr. 11).
4. On September 14, 1972, four employees of respondent were standing or sitting on steel beams and installing cross-bracing between roof trusses. They were approximately 28 feet above ground level and were working over a concrete pit which extended approximately 8 feet below ground level (Ex. 1; Tr. 13-15).
5. None of the employees installing the cross-bracing between the roof trusses wore safety lines or lanyards. There were no scaffolds, safety nets, catch platforms or temporary floors being used to protect the employees (Ex. 1; Tr. 14-15).
6. A safety net was not the only practical way of protecting the employees. A ladder, scaffold, catch platform or safety belts would have been practical in providing protection to the employees (Tr. 32-33, 51-52).
7. Respondent's employees were using a crane in connection with the erection of the steel framework. There was no fire extinguisher available at the operator's station. A fire extinguisher was also not available in or near the cab of the equipment (Tr. 16).
8. There were no hand signals to the crane operators posted anywhere on the crane or at the jobsite (Tr. 16-17).
9. A record of the dates and results of inspections for each hoisting machine and piece of equipment was not maintained by respondent at the jobsite. Respondent's representative on the walk around was unaware of any annual inspection being made of the equipment (Tr. 17).
10. Two employees of respondent were riding on a forklift which had no safety belts to secure them. One of the employees was operating the forklift and the other was a passenger (Tr. 17-18).
11. The OSHA poster informing employees of the protections and obligations provided for in the Act was not posted anywhere on the jobsite at the time of the inspection on September 14, 1972 (Tr. 18).
12. On September 28, 1972, the complainant, through one of his authorized compliance officers, conducted a second inspection of respondent's workplace located at Hamilton, Alabama (Tr. 18-19).
13. On the date of the second inspection, no permanent or temporary stairways, suitable ramps or runways were provided to give access to all elevations. The employees were also not using a ladder in gaining access to the working level. They were pulling themselves up the steel beams to the next level in a manner similar to that employed by electrical linemen (Tr. 20, 49).
14. A penalty of $120.00 was proposed by complainant for the alleged non-serious violation of 29 CFR 1926.450(a)(1). The gravity of the violation was determined to be sufficient to require hospitalization in the event of an accident and the unadjusted penalty set at $300.00. A 10% reduction was allowed for good faith and an additional 10% was allowed for size. The adjusted penalty of $240.00 was further reduced to $120.00 by allowance of a 50% abatement credit (Ex. 2; Tr. 21-24).
LAW AND OPINION
Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. Complainant alleges that respondent violated Section 5(a)(2) of the Act by failing to comply with seven (7) separate standards promulgated under the Act. Two separate citations and a citation for serious violation were issued respondent.
A. Citation issued September 19, 1972.
1. Alleged violation of 29 CFR 1926.550(a)(14)(i) Section 1926.550(a)(14)(i) of 29 CFR provides as follows:
An accessible fire extinguisher of 5BC rating, or higher, shall be available at all operator stations or cabs of equipment.
Complainant alleges that respondent failed to provide fire extinguishers on the crane.
The compliance officer testified that respondent's employees were using a crane in connection with the erection of the steel framework and that no fire extinguisher was available at the operators station or in the cab. In addition the crane operator indicated to the compliance officer that he was unaware of the existence of a fire extinguisher (Tr. 16). The respondent introduced no evidence on this issue and indicated that it did not dispute the facts established by complainant (Tr. 54). Thus the violation is established.
2. Alleged violation of 29 CFR 1926.550(a)(4) Section 1926.550(a)(4) of 29 CFR provides as follows:
Hand signals to crane and derrick operators shall be those prescribed by the applicable ANSI standard for the type of crane in use. An illustration of the signals shall be posted at the job site.
The citation and complaint allege that respondent failed to post hand signals for cranes used on the jobsite.
The compliance officer testified that he looked for an illustration of the hand signals but found none posted anywhere on the job site (Tr. 16-17). Respondent introduced no evidence to show that hand signals were posted. Its owner indicated that there was no disagreement with the facts presented by complainant on this issue (Tr. 54). Accordingly, the violation is established.
3. Alleged violation of 29 CFR 1926.550(a)(6) Section 1926.550(a)(6) of 29 CFR provides as follows:
A thorough, annual inspection of the hoisting machinery shall be made by a competent person, or by a government or private agency recognized by the U.S. Department of Labor. The employer shall maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment.
The citation and complaint allege that respondent failed to have a record of annual inspection by a competent person of hoisting equipment and machines. Respondent contends that it did not have a place of business in Hamilton, Alabama, and that the record of annual inspection did not have to be kept at the workplace (Tr. 41).
The evidence is undisputed that there was no record of annual inspections for each hoisting machine and piece of equipment maintained at the jobsite. The compliance officer testified that he did not see any such record and that respondent's representastive stated that he was unaware of any such inspection (Tr. 17). These facts are undisputed. Since respondent is not charged with not having an annual inspection but only of not having a record of it, the crux of this issue is whether the record of annual inspection must be kept at the workplace. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Complainant's proof was directed toward establishing that the record did not exist at the workplace. He did not attempt to prove no such record existed at some other place. Since the burden of proof is upon complainant, it can not be assumed that the record did not actually exist at some other location.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The standard requires that the employer maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment. It does not specifically state where the record must be maintained. However, when the standard is read in conjunction with Sections 4(a) and 5(a)(2) of the Act and the objectives of the standard, it is clear that the record must be maintained at the workplace.
Respondent is charged with a violation of Section 5(a)(2) by failing to comply with the published standard. Section 4(a) of the Act specifically states that the Act, which includes Section 5(a)(2), shall apply with respect to employment performed in a workplace in a State. If the Act and published standards are applicable to the workplace, then it seems reasonable that the record of inspections should be maintained at the workplace. A fair analysis of the objectives of the standard supports such a determination.
Enforcement of the standard would be extremely difficult if the record of inspection were permitted to be kept at some point distant from the actual workplace where the machinery was being used. Assuming arguendo that the required record had been maintained in Nashville, the complainant would have been put to considerable expense to determine if the record actually existed since the inspection of the workplace was in Hamilton, Alabama. More importantly, the employees at the workplace had no ready reference on the site to indicate the condition of the equipment which they were operating. The safety and health of employees could be easily compromised under such a procedure.
4. Alleged violation of 29 CFR 1926.601(b)(8). Section 1926.601(b)(8) of 29 CFR provides as follows:
Vehicles used to transport employees shall have seats firmly secured and adequate for the number of employees to be carried.
The citation and complaint allege that respondent failed to provide seat and safety belts on equipment transporting employees.
The evidence is undisputed that two employees of respondent were riding on a forklift which had no safety belts to secure them. One of the employees was operating the forklift and the other was a passenger (Tr. 17-18). Respondent contends that the standard cited has no applicability to forklifts (Tr. 48).
Section 1926.601(a) of 29 CFR states that coverage of the section is limited to motor vehicles that operate within an off-highway jobsite, not open to public traffic. Is a forklift a motor vehicle as that term is generally used? The Dictionary of Terms used in the Safety Profession (December 1971 edition) published by the American Society of Safety Engineers defines motor vehicle as follows:
Any mechanically or electrically powered device (except one moved by human power), not operating on rails, upon which or by which any person or property may be transported upon a land highway. The load on a motor vehicle or trailer attached to it, is considered part of the vehicle. Tractors and motorized machinery are included while self-propelled in transit or used for transportation. Also included are motor scooters and motorized bicycles.
Under the definition a motor vehicle is an electrically or mechanically powered device by which any person or property may be transported upon a land highway. A forklift would not generally be considered for use to transport persons or property upon a land highway.
The standard cited has applicability to vehicles used to transport employees. A forklift is not designed to transport employees and is generally not recognized as being used for this purpose. In fact, 29 CFR 1910.178(m)(3) states that unauthorized personnel shall not be permitted to ride on them. There is no evidence to indicate that the forklift had been altered in any manner so that it was to be used to transport employees. The fact that one person might have been seen riding as a passenger on the forklift does not automatically convert the forklift to a vehicle used to transport employees. There is no evidence to indicate that respondent's employees were regularly transported by the forklift. The detection of one employee riding as a passenger appears to have been an isolated occurrence rather than normal procedure. The facts are insufficient to warrant a determination that there was a violation of 29 CFR 1910.601(b)(8).
5. Alleged violation of 29 CFR 1903.2. Section 1903.2 of 29 CFR provides as follows:
Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted.
The citation and complaint allege that respondent failed to comply with posting requirements.
The complainant must establish two factors to sustain a violation of 29 CFR 1903.2. These factors are: (1) the required notice or notices were furnished to the employer, and (2) the notice or notices were not posted by the employer. The standard plainly refers to notice or notices "to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor."
The evidence merely establishes that the respondent did not have an OSHA poster on the jobsite (Tr. 18). There has been no evidence presented to show that the poster had ever been furnished to the respondent. Since the burden of proof is upon complainant, it is not necessary for respondent to affirmatively offer proof to establish that he had never been furnished the poster. Complainant does not make a prima facie case by the mere showing that there was no poster posted in a conspicuous place. Accordingly, the complainant has failed to carry his burden of proof on this issue.
B. Citation for serious violation issued September 19, 1972. Alleged violation of 29 CFR 1926.105(a) Section 1926.105(a) of 29 CFR provides as follows:
Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are impractical.
The citation for serious violation and complaint allege that respondent failed to provide employees working in excess of 25 feet above the ground or concrete floor of a pit with safety nets, ladders, scaffolds, catch platforms, temporary floors or safety belts and safety lines to protect employees against falling hazards.
The evidence conclusively establishes that four of respondent's employees were installing cross-bracing between roof trusses at a height in excess of 25 feet above the ground (Ex. 1; Tr. 13-15). There were no scaffolds, safety nets, catch platforms or temporary floors in use to afford protection against a fall. None of the employees wore safety lines or lanyards (Ex. 1; Tr. 14-15).
The standard under discussion requires that complainant establish (1) that the workplace was more than 25 feet off the ground and (2) that the use of ladders, scaffolds, safety lines, temporary floors, or safety belts were impractical. Complainant has failed to carry his burden on this issue since he has not established that the use of ladders, scaffolds, safety lines, temporary floors or safety belts were impractical.
The compliance officer admitted that a ladder, scaffold, catch platform or safety belts would have been a practical method in providing protection for the employees (Tr. 51-52). Complainant suggests that the standard be liberally construed to construe a violation whenever a safety net or other means of protection such as ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are not being utilized for the protection of the employees (Tr. 52-53). Such a construction would be contrary to the plain wording of the standard. The expressed intent of the standard is that the use of a safety net is to be the last alternative for the respondent. In other words, if the other enumerated methods of protection are practical they should be used in preference to a safety net. Since complainant's own inspecting officer testified that the other enumerated methods of providing protection were not impractical, the issue must be decided for respondent.
C. Citation issued October 6, 1972. Alleged Violation of 29 CFR 1926.450(a)(1). Section 1926.450(a)(1) of 29 CFR provides as follows:
Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.
The citation and complaint allege that respondent failed to provide ladders for access to all elevations where there were no stairways or suitable ramps or runways provided.
There were no permanent or temporary stairways or suitable ramps or runways provided to give safe access to all elevations on the date of the second inspection. The employees were pulling themselves up the steel beams to the next level in a manner similar to that employed by electrical limemen. No ladders were being used to gain access to the next level (Tr. 20, 49). There is no evidence of record to dispute these facts. Accordingly, the violation is established.
APPROPRIATENESS OF PENALTIES
Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc.,
In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense. In Secretary of Labor v. National Realty and Construction Company, Inc.,
The Commission in Secretary of Labor v. J. E. Chilton Millwork and Lumber Company, Inc., penalties do little to effectuate the objective of the Act, namely, to insure a safe and healthful workplace. The same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., Small monetary penalties were eliminated in both cases since the violations had been abated. However, this rationale was directed toward relatively minor violations of the Act which would be better described as de minimis. The Commission recognized that there would be instances where a small penalty would be justified. Whether small monetary penalties are justified must be determined by the relationship between the non-serious violation involved and the corresponding degree of gravity. Secretary of Labor v. Hydroswift Corporation,
The complainant proposed no penalties for the violations of 29 CFR 1926.550(a)(14)(i), 29 CFR 1926.550(a)(4) and 29 CFR 1926.550(a)(6). After due consideration of the four criteria provided by section 17(j) of the Act and applying the rationale of the Commission in J.E. Chilton Millwork and Lumber Company, Inc., supra, and General Meat Company, Inc., supra, it is concluded that the gravity of the violations are extremely low and that no penalties are warranted.
A penalty of $120.00 was proposed by complainant for the violation of 29 CFR 1926.450(a)(1). The gravity of the violation was sufficient to justify the proposed penalty of $120.00. In the event of an accident, there was a good chance that hospitalization would have been required. The reduction allowed by complainant for good faith and size was fair and reasonable. No reduction was justified for past history since respondent had previously violated safety standards promulgated under the Act.
CONCLUSIONS OF LAW
1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.
2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.
3. Respondent violated Section 5(a)(2) of the Act by committing non-serious violations of the standards published at 29 CFR 1926.550(a)(14)(i), 29 CFR 1926.550(a)(4), 29 CFR 1926.550(a)(6) and 29 CFR 1926.450(a)(1).
4. Respondent did not commit violations of the standards published at 29 CFR 1926.601(b)(8), 29 CFR 1903.2, or 29 CFR 1926.105(a).
5. A penalty of $120.00 is warranted for the violation of 29 CFR 1926.450(a)(1). No penalties are justified for the remaining violations.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is
ORDERED:
(1) That items 1, 2 and 3 of the citation issued September 19, 1972, are affirmed;
(2) That items 4 and 5 of the citation issued on September 19, 1972, are vacated;
(3) That the citation for serious violation and notification of proposed penalty issued on September 19, 1972, are vacated; and
(4) That the citation and notification of proposed penalty issued on October 6, 1972, are affirmed.