Docket No. 2446

ALLSTATE TRAILER SALES, INC.

OSHRC Docket No. 2446

Occupational Safety and Health Review Commission

May 12, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On April 30, 1974, Judge Henry C. Winters issued his decision in this case in which he vacated one citation for serious violation and one item of a citation for non-serious violation with their corresponding proposed penalties, affirmed the ten remaining items of the citation for non-serious violation, and assessed a penalty of $175. On May 30, 1974, the review of the Judge's decision before the full Commission was directed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., [hereinafter "the Act"].

Allstate Trailer Sales, the respondent, manufactures recrational vehicles at its plant in Seattle, Washington. The installation was inspected by a Department of Labor compliance officer on February 21, 1973. As the result of the inspection, the Secretary of Labor, the complainant, issued one citation alleging a serious violation and a second citation alleging eleven non-serious violations as well as a notification of proposed penalties.

In both its notice of contest and its answer to the Secretary's complaint, respondent clearly contested [*2] only the proposed penalties and not the underlying citations. A pre-trial conference was held on August 8, 1973, and the hearing was held on September 4, 1973.

At both the pre-trial conference and the hearing, respondent's president, acting as pro se counsel, made references to objecting to the abatement dates and to the characterization of the saw guarding violation as serious rather than non-serious. In a letter, deemed its post-hearing brief, respondent has abandoned any possible contention with regard to the abatement period, but continues to urge that "none of the alleged violations constitutes a serious violation." This issue was not raised in the notice of contest and it is outside the time permitted by section 10(a) for notices of contest. For the reasons set forth, infra, it is a final order, and as such, is unreviewable by this Commission.

Judge Winters held that he did not lack the authority "to consider the validity of the citation merely because the respondent in its notice of contest complains only of the penalty." The Judge erred. The Judge declined to follow the United States Court of Appeals for the Fifth Circuit, in Brennan v. O.S.H.R.C. [*3] & Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973) in its interpretation of section 10(a) of the Act. In that case, the Court considered the notice of contest to go only to the penalties because respondent there had, in its letter contesting the penalties, "noted that corrective action had been taken after receipt of the citation, and thus, in effect, conceded the existence of the violation . . . ." Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., supra at 233. We note that the same concession is made by respondent in this case.

In Florida East Coast Properties, Inc., No. 2354 (February 5, 1974), a divided Commission held that if, "within the 15-working day limit prescribed by section 10(a)," a respondent contests only the amount of the proposed penalty, the Commission does not acquire the authority to consider the underlying citation since it automatically becomes a final order and "not subject to review by any court or agency." n1 Our position on section 10(a) of the Act is based upon the Fifth Circuit's decision in Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., supra. Florida East Coast was decided more than two months before Judge Winters' [*4] decision in this case, but for unexplained reasons, the Judge did not follow the Commission's interpretation of section 10(a) of the Act. Our precedent is of course controlling.

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n1 Section 10(a) of the Act, 29 U.S.C. § 659(a).

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The decision of Judge Winters, insofar as it considers the merits of the underlying citations, is therefore reversed. The citations, including the abatement dates and the characterization of the violation, have become final orders of this Commission by operation of law and as such, are not reviewable.

We turn now to the appropriateness of the penalties proposed by the Secretary. By final order, respondent has been found in serious violation of the Act for its failure to comply with the standard at 29 CFR § 1910.213(c)(1) and (h)(1). n2 The Secretary proposed that respondent be assessed a penalty of $650 for the violation. Having vacated the citation, Judge Winters vacated the penalty. We must now consider the matter de novo. Brennan v. O.S.H.R.C. & Interstate Glass Co., [*5] 487 F.2d 438, 441 (8th Cir. 1973).

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n2 The standards provide as follows:

§ 1910.213 Woodworking machinery requirements.

(c) Hand-fed ripsaws. (1) Each circular hand-fed ripsaw shall be guarded by a hood which shall completely enclose that portion of the saw above the table and that portion of the saw above the material being cut. The hood and mounting shall be arranged so that the hood will automatically adjust itself to the thickness of and remain in contact with the material being cut but it shall not offer any considerable resistance to insertion of material to saw or to passage of the material being sawed. The hood shall be made of adequate strength to resist blows and strains incidental to reasonable operation, adjusting and handling, and shall be so designed as to protect the operator from flying splinters and broken saw teeth. It shall be made of material that is soft enough so that it will be unlikely to cause tooth breakage. The material should not shatter when broken, should be nonexplosive, and should be no more flammable than wood. The hood shall be so mounted as to insure that its operation will be positive, reliable, and in true alignment with the saw; and the mounting shall be adequate in strength to resist any reasonable side thrust or other force tending to throw it out of line.

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.

[*6]

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In determining the appropriateness of the proposed penalties in a case where only the penalties are contested, it is proper to consider the nature and factual circumstances of the underlying violation. Florida East Coast Properties, Inc., supra. We have reviewed the record before us, being mindful of the section 17(j) penalty factors, n3 and find the following:

(1) Respondent employs approximately 35 persons; (2) one or more employees used the unguarded ripsaws and radial arm saws in non-compliance with 29 CFR § 1910.213(c)(1) and § 1910.213(h)(1), and those who used the equipment were experienced and qualified; (3) respondent appears genuinely concerned with protecting the health and safety of its employees; it has established an employee safety committee, and it has been most cooperative throughout the proceedings; (4) the violation is such that, should an injury occur, death or serious physical harm could result; and (5) respondent has been previously cited by the Secretary of Labor.

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n3 Section 17(j) of the Act, 29 U.S.C. § 666(i), provides as follows:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

[*7]

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Upon due consideration of these findings, we accord more weight to respondent's good faith than did the Secretary. We agree with his determination of the weight given the other statutory factors. Accordingly, we find a penalty of $500 to be appropriate.

By operation of law, the Secretary's 11 item citation for non-serious violation, alleging respondent's non-compliance with 11 different standards, has become a final order of the Commission. A total penalty of $420 was proposed by the Secretary for these non-serious violations. Judge Winters reduced the penalty for items 2 and 3 n4 of the citation, vacated the penalty for item 11 n5 and affirmed the remaining proposed penalties totalling $175.

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n4 Items 2 and 3:

Respondent has been found in non-serious violation of the Act for its failure to comply with the standards at 29 CFR § 1904.2 and 5(a) that provide, in pertinent part, as follows:

§ 1904.2 Log of occupational injuries and illnesses. (a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment . . . for this purpose, Occupational Safety and Health OSHA Form 100 or any private equivalent may be used . . .

§ 1404.5 Annual Summary (a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment. Each annual summary shall be based on the information contained in the log of occupational injuries and illnesses for the particular establishment. Form OSHA No. 102 shall be used for this purpose, and shall be completed in the form and detail as provided in the instructions contained therein.

n5 Item 11:

Respondent has been found in non-serious violation of the Act for its failure to comply with the standard at 29 CFR § 1910.133(a)(1) that provides as follows:

§ 1910.133 Eye and face protection. (a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation or a combination of these hazards.

[*8]

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As to items 2 and 3, while we do not agree with the Judge's comments concerning the "technical nature of the violations," after giving due consideration to the nature of the violations, recordkeeping, we agree that a reduction in the proposed penalties appears warranted. Therefore, we affirm the Judge's reduction for the penalties from the $100 proposed by the Secretary to $25 for each item.

As to item 11, we accept the $95 penalty proposed by the Secretary as appropriate, adopting the weight that he has assigned to the section 17(j) penalty factors.

Accordingly, it is ORDERED that the decision of Judge Henry C. Winters, as it applies to the underlying citations, be reversed; it is further ORDERED that a penalty of $500 be assessed for respondent's serious violation and a total penalty of $270 be assessed for respondent's non-serious violations of the Act.

[The Judge's decision referred to herein follows]

WINTERS, JUDGE: This is an action brought by the Secretary of Labor under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) to affirm two citations, issued [*9] March 2, 1973, one alleging two serious violations and the other alleging 11 non-serious violations, and to affirm proposed penalties totalling $1,070.00.

The citations were issued as a result of an inspection made February 21, 1973 of a worksite in Seattle, Washington where Respondent was engaged in the business of manufacturing and distributing recreational vehicles.

Citation for Serious Violation Number 1 alleges the following violations:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR 1910.213(c)(1) -- Failure to guard hand fed saws in mill area by a hood which completely encloses that portion of the saw above the table. -- April 13, 1973

29 CFR 1910.213(h)(1) -- Failure to provide a guard for radial arm saws which guards the sides of the lower exposed portion of the blade to the full diameter of the blade. -- April 13, 1973

THE ABOVE TWO INSTANCES OF FAILURE TO GUARD SAW BLADES, ANY ONE OF WHICH COULD ALONE BE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR CITATION AND PENALTY PURPOSES TO FORM THIS ONE ALLEGED SERIOUS VIOLATION.

Citation Number 1 alleges the following violations: [*10]

Item No. -- Standard or regulation allegedly violated -- Description of alleged violation February 21, 1973 -- Date on which alleged violation must be corrected

1 -- 29 CFR 1903.2(a) -- Failure to post official poster to inform employees of protections and obligations. -- Immediately upon receipt of this Citation.

2 -- 29 CFR 1904.2 -- Failure to maintain a log of Occupational Injuries and Illnesses on OSHA Form No. 100. -- Immediately upon receipt of this Citation.

3 -- 29 CFR 1904.5(a) -- Failure to compile an Annual Summary of Occupational Injuries and Illnesses on OSHA Form 102. -- Immediately upon receipt of this Citation

4 -- 29 CFR 1910.213(c)(2) -- Failure to provide hand-fed circular ripsaws with a spreader to prevent material from squeezing the saw or being thrown back on the operator. -- April 13, 1973

5 -- 29 CFR 1910.213(c)(3) -- Failure to provide hand-fed circular ripsaws with nonkickback fingers or dogs. -- April 13, 1973

6 -- 29 CFR 1910.213(h)(4) -- Failure to install radial arm saws so as to cause the cutting head to return to the starting position when released by the operator.

7 -- 29 CFR 1910.219(d)(1) -- Failure to guard pulleys located less [*11] than 7 feet above the floor on the self-feed ripsaw and drill press. -- March 23, 1973

8 -- 29 CFR 1910.215(a)(2) -- Failure to provide a guard for grinding wheels which covers the spindle end, nut and flange projection. -- April 13, 1973

9 -- 29 CFR 1910.215(a)(4) -- Failure to keep grinder work rests adjusted to a maximum 1/8" from the wheel. -- Immediately upon receipt of this Citation.

10 -- 29 CFR 1910.309(a) -- Failure to ground portable grinder and drill in welding area in accordance with article 259-59 of the National Electrical Code-1971. -- Immediately upon receipt of this Citation.

11 -- 29 CFR 1910.133(a)(1) -- Failure to provide eye protection where machines or operations present the hazard of flying objects. -- April 13, 1973

By Notification of Proposed Penalty, issued March 2, 1973, the Secretary proposes the following penalties:

Citation for Serious Violation No. 1	$650.00
Citation Number 1
Item No. 1		50.00
2		100.00
3		100.00
4		0
5		0
6		0
7		30.00
8		45.00
9		0
10		0
11		95.00

By letter dated March 16, 1973 Respondent filed its notice of contest, stating in part:

Acknowledge receipt of your letter dated March [*12] 2, 1973 (CSHO #Q8964) (OSHA-1 #22-73) of alleged violations.

You are hereby advised we are contesting the proposed penalty associated with the citation . . . .

In the Complaint, filed April 2, 1973, the Secretary seeks to have affirmed: (1) the alleged serious violations and corresponding proposed penalties and (2) the violations alleged at Item Nos. 1, 2, 3, 7, 8 and 11 of Citation Number 1 and corresponding proposed penalties.

In his letter of May 8, 1973, which was accepted by this Commission as Respondent's answer, Respondent's president, on behalf of Respondent, requested a "hearing concerning the proposed penalty."

A prehearing conference was held before this Judge at Seattle, Washington on August 8, 1973. The case was heard before this Judge on September 8, 1973 at Seattle, Washington.

DISCUSSION

The alleged serious violation(s).

There are fundamental defects in the citation for serious violations. That citation is defective because the language used is unclear and ambiguous and because it is an attempt to make one alleged violation out of several.

The language is unclear and ambiguous because the Respondent cannot tell from reading the citation how many [*13] saws it is charged with failure to guard, and, if more than one, the location of each. The first paragraph under the heading "Description of alleged violation" refers to the failure to guard hand fed rip "saws," indicating more than one such rip saw was not guarded, but not indicating how many. The next paragraph refers to a failure to provide a guard for radial arm "saws," indicating that more than one such radial arm saw as not guarded, but not indicating how many. The uncertainty is compounded because the language in capital letters which follows the allegations of violation starts out by referring to the "above two instances of failure to guard saw blades." If rip saws and radial arm saws were not guarded, it must have been considered that there were more than two instances of failure to guard saw blades. The total effect is one of confusion. The Complaint repeats the vague and indefinite charges in paragraphs III, IX and XI thereof. Under the charges as presently worded, the Respondent would not know precisely what is expected of it in order to abate the violation or violations and Respondent's employees would not know to what extent they may or may not be [*14] protected.

The Judge is compelled to the conclusion that the citation for serious violation does not describe with particularity the nature of the alleged offense as required by Section 9(a) of the Act, nor has the Respondent been properly advised of the matters of fact asserted as required by Section 5 of the Administrative Procedure Act (5 U.S.C. 554). Compliance with these statutory proscriptions by the Secretary of Labor is a mandatory condition precedent to the imposition of enforcement sanctions upon a respondent. Failure of the Secretary of Labor to so comply is prejudical to the respondent's constitutional right not be deprived of liberty or property without due process of law. No action or inaction on the part of this Respondent, appearing without representation by an attorney at law, can be construed as a waiver of such right. The Respondent's president has stated several times that the Respondent was not contesting the violations. While this action may relieve the Secretary of the necessity of proving the basic violations, it does not, in the opinion of this Judge, deprive this Commission of jurisdiction to decide matters of public interest in connection with the [*15] citation and alleged violations nor to protect the rights of employees or of Respondent.

There is another basic defect in the citation for serious violation. The Secretary of Labor does not have the power to decide that several serious violations be penalized as one. n1 Section 17(b) of the Act provides that an employer who has received a citation shall be assessed a civil penalty of up to $1000 for each such violation. Due process requires that all persons be treated equally and impartially under the law. Here the Secretary has lumped together for penalty purposes what is considered to be five violations. It was disclosed for the first time at the hearing that the Secretary's area director and compliance officer consider that there were two rip saws and three radial arm saws involved in the one charged serious violation; and that each of the five instances of failure to guard a saw was considered to qualify in and of itself as a separate serious violation but was intentionally not so charged.

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n1 This Judge confesses not to understand under what circumstances the following provisions of Section 6(e) of the Act could constitutionally apply:

(e) Whenever the Secretary . . . grants any exemption . . . compromises, mitigates, or settles any penalty assessed under this Act, he shall include a statement of the reasons for such action, which shall be published in the Federal Register.

In any event, there has been no attempt here to act under this section.

[*16]

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In arriving at a proposed penalty in this case, the Secretary's area director used the same formula and started out with the same unadjusted penalty of $1,000, as he would have done if there had been but one unguarded saw, and as he does in any other case where one serious violation allegedly occurred and one was charged. It is common knowledge that in other cases where several serious violations allegedly occurred and were charged, the Secretary's area director starts out with an unadjusted penalty of $1,000 for each separately alleged violation. If there were five separately alleged serious violations, he would start his computations with an unadjusted proposed penalty of $1,000 for each violation or a total of $5,000. n2

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n2 For some unexplained reason, the Secretary's area director, in proposing penalties for alleged serious violations, assigns the same relative gravity to all separately charged serious violations, without regard to actual relative gravity.

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The practices followed by the Secretary's area director in this case are unfair and discriminatory to Respondent's employees as compared to employees of other employers not afforded the favorable treatment here accorded Respondent; and to other employers charged separately with each alleged serious violation. This Respondent is called upon to defend against a possible maximum penalty of $1,000 for a total of five separate violations; whereas other employers under substantially the same circumstances may be called upon to defend against a possible maximum penalty of $5,000. Moreover, Section 17(c) makes the imposition of a penalty mandatory for each serious violation. When two or more violations are combined for penalty purposes, there is no assurance that this statutory requirement has been followed.

The question then arises as to what can be done at this stage of the proceeding to remove the inequities, one aspect of which is unfavorable to the Respondent (vagueness of the charge) and the other aspect of which is favorable to the Respondent (combining five violations into one). It would be unfair to Respondent to permit the citation to [*18] be amended at this late date to charge five separate serious violations. Such an amendment would violate the proscriptions of Section 9(a) of the Act which requires that a citation state with particularity the nature of the alleged violation, and of Section 5 of the Administrative Procedure Act, which requires that the respondent be advised of the matters of fact and law asserted. Moreover, such a drastic change by adding additional charges would in effect constitute a new citation or citations. Section 9(a) of the Act prohibits the issuance of a citation after six months following the occurrence of any violation.

The only reasonable action for this Commission to take would be to vacate the citation for serious violation. The Secretary could then cause another inspection of Respondent's plant to be made immediately. If the proper guards are installed on all saws then the objectives of the Act have been accomplished. If the proper guards are not installed, a new citation or citations may be issued in proper form and substantial penalties would be in order.

This Judge does not agree with the Secretary's position that this Commission lacks jurisidction to consider the validity [*19] of the citation merely because the Respondent in its notice of contest complains only of the penalty. This Judge cannot believe that the Court of Appeals for the Fifth Circuit, by its decision in Brennan v. O.S.H.R.C. and Bill Echols Trucking Co., 487 F.2d 230 (November 13, 1973), intended to establish broad precedent when as the Court pointed out in its decision the difficulty of its task had been magnified by the paucity of the written argument presented to the Court. This Judge believes that had both sides of the issues been fully briefed in the Bill Echols case the Court would not have made the following statement (487 F.2d 230, 234):

The Act provides that a failure to notify the Secretary within 15 days of intent to contest the citation or proposed penalty will render such citation or penalty "a final order of the Commission and not subject to review by any court or agency." (Emphasis supplied.)

This Judge respectfully asserts that the Court of Appeals for the Fifth Circuit erred in using the conjunction "or" when the pertinent provision of the act uses the conjunction "and." Section 10(a) of the Act actually provides:

If . . . the employer fails to [*20] notify the Secretary that he intends to contest the citation or proposed assessment of penalty, . . . the citation and the assessment as proposed shall be deemed a final order of the Commission and not subject to review by any court or agency. (Emphasis supplied.)

In the opinion of this Judge, it is significant that the above statute uses the conjunction "and" and refers to the citation and proposed penalty as "a final order" and not as "final orders." It is this Judge's conviction that Congress did not separate the finality of the citation from the finality of the penalty assessment. The citation and penalty assessment are merged into one order so that there is but one order to become final.

This Judge concludes from a reading of the Act, particularly Section 10 thereof, that Congress intended that if an employer contests either the citation or the proposed assessment of a penalty, the employer is entitled to a hearing at which, subject to reasonable rules of procedure, all relevant matters are at issue, including the validity of the alleged violation and the appropriateness of the proposed penalty. Section 10(c) of the Act provides that if an employer notifies the [*21] Secretary that he intended to contest a citation or notification of proposed penalty, the Secretary shall advise the Commission and the Commission shall afford an opportunity for a hearing; and that the Commission shall thereafter issue an order affirming, modifying or vacating the citation or proposed penalty, or "directing other appropriate relief." The Act does not limit the issues of the hearing to the scope of the notice of content but rather puts the whole matter before this Commission with a broad power to direct other appropriate relief. It is evident that Congress delegated to this Commission plenary adjudicatory power to hear and decide all enforcement matters arising out of the issuance of a citation.

Under the Secretary's interpretation of this statute, if an employer contests the proposed penalty but does not specifically state that he is contesting the citation, and a hearing is held, the following rather strange consequences would result:

1) The Respondent would be precluded from asserting that the reason he should not have a penalty assessed against him is because he did not violate the Act; and

2) This Commission, although holding a hearing to consider [*22] the facts and circumstances surrounding an alleged violation, would be prevented by its own final order (an order which it did not issue and over which it at no time had any control) from vacating or modifying a citation which it considered to be erroneous.

This Judge cannot believe Congress intended such consequences.

When one considers that the citation and notification of proposed penalty are not required to be issued simultaneously and it is only the notification of proposed penalty that starts the fifteen working day period within which a notice of contest must be made, and when one considers that the abatement date is automatically postponed when a good faith notice of contest is made, the conclusion is even more evident that a notice of contest does not have to mention specifically that the citation is contested in order to put the validity of the citation as an issue before this Commission. This is not to say that a Respondent may not admit the validity of a citation either by making an explicit admission in a notice of contest, or by way of a pleading or in testimony, thereby eliminating the necessity of proving the allegations of a citation.

In this Judge's opinion, [*23] Congress intended that the notice of contest be the vehicle by which an employer would exercise the right conferred on him by the Administrative Procedure Act to have the opportunity for a hearing; n3 and Congress did not intend that the notice of contest be a responsive pleading in the sense that an employer must, within a period as short as fifteen days, decide precisely what his objection or his defense would be. If it were the intent of Congress in Section 10 of the Act that an employer by the particular language be used in a notice of contest would thereby make an irrevocable decision limiting the issues of the proceeding and the jurisdictional power of this Commission, such provision of the Act would, in this Judge's opinion, contravene the guarantee of the Fifth Amendment of the U.S. Constitution that a person shall not be deprived of liberty or property without due process of law.

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n3 See 5 U.S.C. 554, 556, and 557. The fact that a hearing is required does not imply that oral testimony is necessary with respect to uncontroverted factual matters.

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This Commission has jurisdiction in this case to vacate the citation despite the fact that the Respondent has not asked for this relief.

The standards involved in the alleged serious violations were promulgated in May 1971 but were not effective until February 15, 1972. Although the unguarded machinery was present during a prior OSHA inspection conducted in September 1971, there is no evidence that the Respondent was advised that the inspector considered that violations would exist if the guards were not installed prior to February 15, 1972. In the opinion of this Judge, it would have been consistent with the objectives of the Act to so advise the Respondent so as to afford the employer the opportunity to protect the employees in the interim and incidentally to avoid subsequent charges against the Respondent.

The alleged nonserious violations.

The record justifies the affirmance of Item Numbers 1 to 10, inclusive. Combining more than one alleged violation in a single item number such as at Item Number 7 and 10 is undesirable but not fatal to the validity of the citation.

Based upon the criteria of Section 17(j) of the Act, [*25] the penalties proposed for the violations alleged at Item Numbers 1, 7 and 8 are appropriate; but the penalties proposed for Item Numbers 2 and 3 are not appropriate. Considering particularly the somewhat technical nature of the violations alleged at Item Numbers 2 and 3 and the relatively small size of Respondent's business, a penalty of $25.00 for each such violation is appropriate.

Item Number 11 should be vacated because it does not describe with particularity the nature of the offense. This item number, and the corresponding part of the Complaint allege:

Failure to provide eye protection where machines or operations present the hazard of flying objects.

Neither the employees nor the employer could know from reading the citation what "machines or operations" the Secretary's area director had in mind when the citation was issued. The employer could not know what it is expected to do to abate the alleged violations. The employees could not know to what extent they are being protected by Item Number 11 of the citation. This item number is violative of the proscriptions of Section 9(a) of the Act and of Section 5 of the Administrative Procedure Act (5 U.S.C. 554) [*26] and should be vacated.

The compliance officer described what he had in mind when he noted the violation at Item 11 as follows:

I observed power saws being used, the operators of which had no eye protection. I observed a man using a power drill with what was called a spade attachment. There were flying chips from wood. There was no eye protection made available at the grinder.

What the area director had in mind when he issued the citation can only be left to speculation. The Secretary should order an immediate reinspection. If the area director believes a violation exists a new citation should be issued describing with particularity the nature of the offense. Item Number 11 should be vacated.

FINDINGS

In consideration of the entire record, and of the briefs submitted by the parties, the Judge finds that the Commission has jurisdiction of the parties of the subject matter of this action; that Citation for Serious Violation Number 1 should be vacated; that Item Number 11 of Citation Number 1 should be vacated and that in all other respects Citation Number 1 should be affirmed; and that, considering the criteria of Section 17(j) of the Act, no penalties should be imposed [*27] for Item Numbers 4, 5, 6, 9 and 10 of Citation Number 1, and the following penalties should be imposed for Item Numbers 1, 2, 3, 7 and 8 of Citation Number 1:

1	$50.00
2	$25.00
3	$25.00
7	$30.00
8	$45.00

ORDER

In view of the findings made herein, it is ORDERED:

1) That Citation for Serious Violation Number 1, issued March 2, 1973, be and it is hereby vacated;

2) That Item Number 11 of Citation Number 1, issued March 2, 1973, be and it is hereby vacated;

3) That Item Numbers 1 to 10, inclusive, of Citation Number 1, issued March 2, 1973, be and they are hereby affirmed; and

4) That the following civil penalties be and they are hereby imposed upon Respondent for the violations alleged in Item Numbers 1 to 10, inclusive, of Citation Number 1:

1	$50.00
2	$25.00
3	$25.00
4	0
5	0
6	0
7	$30.00
8	$45.00
9	0
10	0