LAMINATING SERVICES

OSHRC Docket No. 2687

Occupational Safety and Health Review Commission

May 7, 1975

  [*1]  

Before MORAN, Chairman, and CLEARY, Commissioner

OPINION:

  BY THE COMMISSION: A decision of Review Commission Judge James D. Burroughs, dated August 28, 1973, is before the Commission for review pursuant to 29 U.S.C. §   661(i).   That decision held that a prior order of Review Commission Judge Herbert E. Bates granting extension of the abatement periods for two violations was viod.   Judge Burroughs also found that the respondent, in contravention of 29 U.S.C. §   659(b), failed to correct two violations specified in an uncontested citation within the period permitted for its correction. He assessed a penalty of $200.00 for each failure to correct.

Review was directed on whether the petition for modification of abatement dates which was allowed by Judge Bates was valid.   We answer that question in the negative for the reasons given by Judge Burroughs.

Having examined the entire record, the Commission affirms Judge Burroughs' disposition of the case.

Although Commissioner Cleary agrees that the amount of the additional penalty assessment is appropriate under the criteria specified in 29 U.S.C. §   666(d) and (i), he disagrees with the Judge Burroughs' conclusion that additional penalties [*2]   are determined on the basis of the number of working days that the violations remain unabated after the expiration of the abatement date.   For the reason expressed in his separate opinion in Secretary v. The Murphy Company, 7 OSAHRC 453, 455 (1974), Commissioner Cleary would hold that a penalty for failure to correct a violation may be assessed for each day that a violation is not abated.

[The Judge's decision rferred to herein follows]

BURROUGHS, JUDGE: 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. 1590 (hereinafter referred to as the Act) contesting a Notification of Failure To Correct Violation and of Proposed Additional Penalty issued to respondent by complainant on March 28, 1973, pursuant to Section 10(b) of the Act.

The Notification of Failure to Correct Violation and of Proposed Additional Penalty alleges that as a result of a reinspection by complainant on March 22, 1973, respondent failed to abate by March 16, 1973, violations of safety standards described in items 1 and 2 of a citation issued February 5, 1973.   The notification proposed the following additional penalties:   [*3]  

PROPOSED

PROPOSED

TOTAL

50 PERCENT

DAILY

ADDITIONAL

ITEM

ADJUSTMENT

ADDITIONAL

PENALTY

NO.

FACTOR

PENALTY

FOR FAILURE

TO ABATE

1

$40.00

$375.00

$415.00

2

40.00

375.00

415.00

 

On January 11, 1973, complainant conducted an inspection of a workplace under the ownership, operation and control of the respondent located at 4700 Robards Lane, Louisville, Kentucky.   A citation was issued on February 5, 1973, alleging that respondent violated Section 5(a)(2) of the Act by failing to comply with twenty-two (22) occupational safety and health standards promulgated pursuant to Section 6(a) of the Act.   Items 1 and 2 of the citation alleged violations of the safety standards published at 29 CFR 1910.212(a)(3)(iii) n1 and 29 CFR 1910.219(f)(3), respectively.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The citation and complaint refer to 29 CFR 1910.212(a)(3)(iii), whereas the correct standard is 29 CFR 1910.212(a)(3)(ii).   Complainant's motion to amend to refer to the correct standard was granted at the hearing.   Respondent was fully apprised of the facts surrounding the alleged violation and voiced no objection to the amendment.   Reference hereinafter will be to the correct standard.

  [*4]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The alleged violation of 29 CFR 1910.212(a)(3)(ii) was described in the citation as follows:

The point of operation of machines whose operation exposed employees to injury was not guarded (clipper, seal-master slitter, wood department; clipper, veneer dept.).

  The alleged violation of 29 CFR 1910.219(f)(3) was described as follows:

All sprocket wheels and chains less than seven feet from the floor were not guarded (coater, coating dept.; laminator, laminating dept., sealmaster slitter, wood dept.).

The citation specified that the violations were to be corrected without delay but not later than March 16, 1973.   A penalty of $40.00 was proposed for each of the alleged violations.

The citation was not contested and it became a final order of the Commission pursuant to Section 10(a) of the Act.   The respondent, by letter dated April 5, 1973, advised complainant of its intent to contest the additional penalties proposed for the failure to abate. The letter of April 5, 1973, also requested an extension of the abatement date for items 1, 2, 3 and 18 of the citation.   The Commission regarded [*5]   the letter of April 5, 1973, as a notice of contest and a petition for modification of the abatement periods.   Separate case files were established.   The petition for modification of the abatement periods was assigned docket number 2688-P.   On May 14, 1973, it was assigned to Judge Herbert E. Bates for a ruling.   The present case was assigned to this Judge on May 21, 1973, for purposes of conducting a hearing pursuant to Section 10(c) of the Act.

Complainant objected to the petition for modification of the abatement period for the reason that the request was not timely filed as required by Commission Rule 34.   The period for correction was not later than March 16, 1973, whereas the request for extension was made by letter dated April 5, 1973.   Despite complainant's objection, an Order was issued on May 21, 1973, granting the petition.   The Order stated:

Despite the Respondent's appropriate objection to the Petitioner's application because of its untimely filing, the application for an extension of time to April 30, 1973, within which to correct the violations charged in Items 1, 2, 3, and 18 of the Citations issued on February 5, 1973 is hereby granted.   It is ordered that the said [*6]   citation be and hereby is amended to reflect the above time extensions.

A hearing was held in this case in Louisville, Kentucky, on June 19, 1973. No additional parties desired to intervene in the   proceeding.   The effect of the Order entered in Docket No. 2688-P on this case was raised at the trial.   This Judge was unaware that the petition for modification of abatement pertained to any disputed items in this case until the matter was raised at the hearing on June 19, 1973.

ISSUED

The primary issue for determination is whether respondent failed to correct the non-serious violations of the standards published at 29 CFR 1910.212(a)(3)(ii) and 29 CFR 1910.219(f)(3) by the abatement date of March 16, 1973.   If respondent failed to correct the violations, a determination must be made as to the additional penalty, if any, which should be assessed for the failure to abate.

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 this proceeding.

1.   Respondent, Laminating Services, is a division of American Standard and primarily manufactures wood and vinyl [*7]   wall covering.   It employs approximately 50 persons at a plant located at 4700 Robards Lane, Louisville, Kentucky.   Some of the products manufactured by respondent are shipped outside the State of Kentucky.

2.   On January 11, 1973, complainant, through a duly authorized compliance officer, conducted an inspection of respondent's workplace located at 4700 Robards Lane, Louisville, Kentucky.   As a result of the inspection, a citation was issued to respondent on February 5, 1973, alleging that respondent violated Section 5(a)(2) of the Act by failing to comply with twenty-two (22) occupational safety and health standards.   (Ex. 1; Citation) The citation was received by respondent on February 7, 1973.

3.   The inspection of January 11, 1973, disclosed that the point of operation for a clipper and a slitter in the wood department   and a clipper in the veneer department were not guarded.   Four or five operators or operators' helpers were exposed to possible injury.   The violation described as item 1 of the citation, which involved 29 CFR 1910.212(a)(3)(ii), was based on these facts.   (Ex. 3).

4.   Several pieces of equipment, including a coater, a laminator and a slitter, which [*8]   were observed during the inspection had sprocket wheels and chains less than seven feet above the floor which were unguarded. (Exs. 6, 7) Approximately six to ten persons were exposed to the unguarded sprocket wheels and chains. The violation described as item 2 of the citation, which involved 29 CFR 1910.219(f)(3), was based on these facts.

5.   Items 1 and 2 of the citation of February 5, 1973, were to be corrected without delay but not later than March 16, 1973.

6.   The unguarded clippers exposed employees to the possibility of bruised hands.   The slitter exposed the hands of employees to bruises from the pressure rolls and cuts from the slitter blades.   No injuries were ever reported to respondent from the operation of the clippers or slitters while they were unguarded.

7.   Employees were exposed to a danger of their hands or clothing being caught in the unguarded chains and sprockets. No accidents were ever reported from the absence of guards for the chains and sprockets.

8.   Respondent experienced no serious injuries from its inception in 1955 to the time of the inspection conducted on January 11, 1973.

9.   An unadjusted penalty of $125.00 was proposed for each of the [*9]   alleged violations described as items 1 and 2 in the citation.   The gravity of the violations was determined to be moderate.   After adjustment factors, the final proposed penalties for items 1 and 2 were $40.00 each.   In determining final proposed penalties, credits of $40.00 were allowed for the abatement of items 1 and 2.

10.   Respondent accepted the findings of the citation without protest and paid the penalties proposed for the violations.   It proceeded to correct the violations set forth in the citation within the specified abatement periods.   (Ex. 1)

  11.   After the receipt of the citation, respondent's plant manager requested the assistance of a divisional engineer from its New Castle, Indiana plant to determine the kind of guards that would be necessary to correct items 1 and 2 of the citation and to devise a special guard for the clippers. (Ex. B) The engineer designed an approporiate guard for the clippers. (Ex. A)

12.   Subsequent to receiving the diagram for an appropriate guard for the clippers, respondent proceeded to obtain quotations from Triangle Sheet Metal, Louisville, Kentucky, for the necessary work to correct items 1 and 2 of the citation.   The quotation [*10]   was not received until March 16, 1973.   It had been requested some three weeks prior to that date.   (Ex. A)

13.   Triangle Sheet Metal quoted a price of $4,251.00 to fabricate and install the necessary guards to correct items 1 and 2 of the citation.   (Ex. A) Respondent's plant manager had no authority to approve such an expenditure and referred it to his superior.

14.   The quotation of Triangle Sheet Metal was regarded as excessive and respondent decided to seek a quotation from a different company.   The second quotation was approximately $1,300.00 and was accepted by respondent.   Items 1 and 2 were completely corrected by April 20, 1973.

15.   On March 21, 1973, the compliance officer, who conducted the inspection on January 11, 1973, was advised in a telephone conversation by respondent's plant manager that certain items set forth in the citation had not been corrected by March 16, 1973.

16.   A follow-up inspection was conducted of respondent's plant at 4700 Robards Lane on March 22, 1973.   The clipper and slitter in the wood department and the clipper in the veneer department were still unguarded. No changes had been made since the inspection of January 11, 1973.   (Exs. 4,   [*11]   5, 6)

17.   The reinspection also disclosed that there had been no change in the sprocket wheels and chains which had been observed as being unguarded during the inspection of January 11, 1973.   They were still unguarded. (Ex. 7)

18.   The proposed penalties for failure to abate were based upon the penalties determined for items 1 and 2 of the citation   issued February 5, 1973.   The unadjusted penalty of $125.00 was set as the daily penalty.

19.   Respondent's plant is closed on Saturdays and Sundays.   The numbers of days to apply the daily penalty was determined by excluding Saturday, Sunday and the day of inspection. The penalty was determined applicable for three days.   The $40.00 abatement credits previously allowed were added to the proposed penalties to arrive at a total proposed penalty of $415.00 for each item.

OPINION

Prior to reaching a determination on the merits of this case, it is necessary to determine what effect, if any, should be given to the order entered by Judge Bates on May 21, 1973.   The May 21, 1973, Order amended the citation issued February 5, 1973, to change the abatement dates of items 1 and 2 from March 16, 1973, to April 30, 1973.

This action [*12]   emanates from a reinspection conducted on March 22, 1973, and is based on abatement dates of March 16, 1973, which were specified in the citation for items 1 and 2.   Under the terms of the Order entered by Judge Bates, which amended the citation, the abatement dates for items 1 and 2 are April 30, 1973.   If abatement dates of April 30, 1973, are applicable, it is obvious that respondent can not be held accountable for its failure to correct as of March 22, 1973.

The citation issued February 5, 1973, was not contested by respondent.   Since no notice of contest was filed by respondent, it became a final order of the Commission on February 28, 1973, n2 by virtue of the provisions of Section 10(a) of the Act.   Accordingly, respondent was in violation of items 1 and 2 of the citation and was required to abate the hazards not later than March 16, 1973.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The citation was received on February 7, 1973, and respondent did not work on Saturdays or Sundays.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The employer who makes a good faith effort to correct a violation   [*13]   within the abatement period prescribed in the citation, but   finds he is unable to do so because of factors beyond his control, is afforded a measure of relief from a citation under Section 10(c) of the Act.   This section provides that he may file a petition with the Secretary for a modification of the time for abatement. The pertinent language of Section 10(c) states as follows:

Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation.

The petition, which is referred to as a Petition for Modification of Abatement, is passed upon by the Commission.

Under Section 10(a) of the Act, a citation which is not contested within fifteen (15) working days after receipt is "deemed a final order of the Commission and not subject to review by any court or agency." An order entered on a petition for modification of abatement filed pursuant to Section 10(c) has the legal effect [*14]   of a review of the citation after it has become a final order of the Commission, seemingly in contradiction of Section 10(a).   Although the Commission is an "agency" within the meaning of Section 10(a), n3 Section 10(c) of the Act grants an exception to the finality provided by Section 10(a).   The power to enlarge the abatement period is an exception to the prohibition against agency review of final orders of the Commission.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 See concurring opinion of Commissioner Burch in Secretary of Labor v. The Evening News Association,

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Section 10(c) of the Act does not specify when the petition for modification of abatement must be filed.   It merely provides the employer with an opportunity to seek relief from an abatement date which becomes unreasonable because of factors beyond his reasonable control.   The Commission has adopted rules to govern the time for filing of an employer's [*15]   petition for modification of the abatement period.   Commission Rule 34(a) provides as follows:

An employer may file with the Secretary a petition for modification of an   abatement period no later than the close of the next working day following the date on which abatement is required.

The petition must be filed no later than the close of the next working day following the date on which abatement is required by the citation.   Jurisdiction of the Commission is based on a timely filing of the petition.

The notice of failure to abate is a new claim against the employer, separate and apart from the citation upon which it rests.   Section 10(b) of the Act recognizes that there will be instances in which an employer will fail to correct a violation within the period specified for its correction in the citation.   It gives the Secretary the authority to propose a penalty to be assessed under Section 17 of the Act for failure to correct within a specified period of time.   In a contest arising under Section 10(b), the employer cannot attack the citation since it has become final and impervious to attack.   The employer's contest must be restricted to the issues raised by the notice [*16]   of failure to abate.

It seems clear that Congress intended that an employer would be diligent in seeking relief under Section 10(c) of the Act.   If such was not the case, there would have been little reason to grant the Secretary the additional authority under Section 10(b) to compel compliance.   Since an employer is prohibited from attacking the citation in a contest of a notice of failure to abate, it is clear that Congaress did not intend that a citation could be amended to change the abatement date after the issuance of a notice of failure to abate.

Generally speaking, there are two requisites for a valid judgment.   There must be jurisdiction over the subject matter and jurisdiction over the parties.   Jurisdiction over the subject matter means that the court must have jurisdiction or power to deal with the class of cases in which it renders judgment.   The notice contesting the proposed additional penalties for failure to abate was timely filed pursuant to Section 10(b) of the Act and the Commission's jurisdiction has been timely invoked as to that action.

  Commission Rule 34 required that the petition for modification of abatement be filed no later than March 19, 1973.   [*17]   n4 The request for modification was contained in a letter dated April 5, 1973, and was approximately three weeks past the required time for filing.   The jurisdiction of the Commission was not timely invoked with respect to the petition for modification of abatement. Since Commission Judges have no authority to extend jurisdiction of the Commission to cover matters beyond the scope of the authority granted by the Act or the Rules of Procedure of the Commission, Judge Bates did not have jurisdiction to rule on the merits of the petition.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 March 17, 1973 and March 18, 1973, fell on a Saturday and Sunday and were not work days.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Since Judge Bates did not have jurisdiction to rule on the merits of the petition for abatement, the order entered by him is null and void.   A void judgment is one which, from its inception, is and forever continues to be absolutely null and without legal efficacy.   It creates no binding obligation upon the parties.   Since it is legally ineffective, it has no force and validity in any subsequent [*18]   proceeding.

Rule 60(b)(4) of the Federal Rules of Civil Procedure permits relief from a final judgment where the judgment is void.   This Judge has no authority to formally set aside the Order entered in Docket No. 2688-P since that case has not been assigned to this Judge.   However, since the order is void, this Judge is not bound to give it any legal efficacy.   Accordingly, the order entered in Docket No. 2688-P is treated as legally ineffective in this proceeding.

Section 12(j) of the Act provides that the report of the hearing examiner n5 shall become the final order of the Commission within thirty days after the report is issued unless within the thirty day period a Commission member has directed that the report shall be reviewed by the Commission.   The Order issued by Judge Bates on May 21, 1973, was not directed for review by a Commission member and became a final order of the Commission.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Called Judges by the Commission.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

  Commission Judges have no authority to overrule motions granted or decisions [*19]   rendered by the Commission.   However the same prohibition does not attach to actions of Commission Judges simply because the Commission declines to review the Judge's decision.   The fact that the order or decision was not reviewed does not ipso facto mean that the Commission is in agreement with the rationale or position of the Judge.   Furthermore, the fact that a Judge's Order was not reviewed cannot cure a jurisdictional defect.

The Notification of Failure to Correct Violation and of Proposed Additional Penalty alleges that respondent failed to correct items 1 and 2 of the citation issued February 5, 1973.   Items 1 and 2 of the citation allege a violation of Section 5(a)(2) of the Acy by failure to comply with the safety standards published at 29 CFR 1910.212(a)(3)(ii) and 29 CFR 1910.219(f)(3).   Safety standard 29 CFR 1910.212(a)(3)(ii) provides as follows:

The point of operation of machines whose operation exposes an employee to injury, shall be guarded.   The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of [*20]   his body in the danger zone during the operating cycle.

The provisions of 29 CFR 1910.219(f)(3) are as follows:

All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform.   Where the drive extends over other machine or working areas, protection against falling shall be provided.   The subparagraph does not apply to manually operated sprockets.

The basic premise of this proceeding is that respondent is deemed in violation of the safety standards published at 29 CFR 1910.212(a)(3)(ii) and 29 CFR 1910.219(f)(3) which constitute items 1 and 2 of the citation issued February 5, 1973.   Since no notice of contest was filed by respondent with respect to the citation issued February 5, 1973, it became a final order of the Commission pursuant to Section 10(a) of the Act and is now not subject to review.   While the violation of items 1 and 2 of the citation are not subject to review complainant must prove that respondent was in violation of 29 CFR 1910.212(a)(3)(ii) and 29 CFR 1910.219(f)(3) at the time of reinspection on March 22, 1973,   and that the violations were identical to items 1 and 2 of the citation.

VIOLATIONS [*21]   AND FAILURE TO ABATE ARE ESTABLISHED

The evidence is undisputed that the point of operation for a clipper and slitter in the wood department and a clipper in the veneer department were unguarded. Four or five operators and helpers were exposed to possible injuries.   This condition existed at the time of the inspection conducted on January 11, 1973, and the reinspection conducted on March 22, 1973.   Respondent offered no evidence to refute these facts and does not contend that the violation was corrected until April 20, 1973.   Thus the violation of 29 CFR 1910.212(a)(3)(ii) and the failure to abate as of March 22, 1973, is established.

The evidence is also undisputed that several pieces of equipment, including a coater, a laminator and a slitter, had unguarded sprocket wheels and chains less than seven feet above the floor.   Approximately six to ten persons were exposed to this hazard. The facts surrounding this condition on the date of reinspection were identical to those on the date of the original inspection. No evidence was offered by respondent to dispute these facts.   The hazard presented by this condition was not corrected until April 20, 1973.   The violation of 29 CFR   [*22]   1910.219(f)(3) and the failure to abate as of March 22, 1973, is established.

ADDITIONAL 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 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.,   stated that in determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury.

The complainant based his additional proposed penalty of $415 on each of the failures to abate on the determinations that the alleged violations existed for three work days.   The abatement date was March 16, 1973.   The period from March 16, 1973, to March 22, 1973, the date of reinspection, included a Saturday and a Sunday.   Saturday, Sunday and the date of reinspection were excluded in determining the number of days for which a daily penalty should be assessed.   Saturday and Sunday were excluded since the respondent conducted no business operations on those days.

Section 17(d) of the Act provides that any employer who fails to correct a violation within the period permitted for its correction may be assessed a civil penalty of not more than $1000 for each day that the violation continues after the expiration of the abatement period.   [*24]   Thus it is clear that a daily penalty can be assessed by the Commission for each failure to correct a cited violation within the abatement period.

The exclusion of Saturday and Sunday in computing the number of days the failure to abate continued is approved.   Where an employer is closed for a specific day and is not engaged in business operations, the failure to abate still continues but no employees are exposed to any unsafe or unhealthful conditions.   Generally speaking, there must be some   exposure of employees to an unsafe working condition before an employer can be held in violation of a safety standard promulgated under the Act.   If an unsafe condition suddenly arises and the employer immediately closes his business because of that condition, he has taken action to assure that his employees are not exposed to any unsafe working condition and the objective of the Act has been achieved.   Under such circumstances the unsafe condition may still exist, but there is no employee exposure and it is clear that neither the complainant nor this Commission would hold that employer in violation of the Act.   It seems only fair and reasonable that for purposes of uniformity the [*25]   exposure factor should also apply in failure to abate cases.   An employer may also experience difficulty in having the condition corrected on a day that the business operation is closed and should not be punished for factors beyond his control.

In determining the additional penalty for failure to abate, the number of days not abated should begin the next day following the date specified in the citation and include all days the employer conducts business operations and end on the date of reinspection. The date of reinspection should be included as one of the days for failure to abate since employee exposure is the same on that date as any other working day.   Under this approach, a daily penalty should be assessed in this case for four (4) days instead of three (3) days as proposed in the notification.

The complainant has proposed an additional penalty of $125.00 per day for the failure to abate. This daily penalty is excessive when considered in light of the existing facts.   The past safety record of the company demonstrates that there was little probability of the occurrence of an injury to employees from the violations.   No injuries were ever reported from the unguarded equipment,   [*26]   even though the plant had been in operation since 1955.   While employees were exposed to the hazards of the unguarded equipment, it is clear that there was employee awareness of the dangers associated with the use of the equipment.

The delay in correcting the violations can be attributed in part to procrastination by Triangle Sheet Metal in submitting its quotation. Respondent took immediate steps to have its divisional engineer inspect the violations and determine appropriate   guards for the equipment.   An appropriate guard had to be designed for the clippers and the design had to be submitted to Triangle Sheet Metal as part of the required work.   The fact that the quotation of Triangle Sheet Metal was rejected does not tarnish the good faith efforts of respondent.   The ultimate cost of $1300.00 as compared to Triangle's bid of $4,251.00 clearly reflects that respondent had good cause to seek a bid from another firm.   It is also noted that respondent's plant manager voluntarily advised the complainant on March 21, 1973, that it had not been able to comply with the abatement dates.   The reinspection resulted from this admission by respondent.

While several employees were [*27]   exposed to hazards presented by the unguarded equipment, the degree of injury (if such did occur) which might be expected was minor.   The evidence reflects that a bruise or cut was the most likely occurrence in the event an employee suffered an injury from the violations of items 1 and 2 of the citation.

After due consideration of the criteria specified by Section 17(j) of the Act and with special emphasis on the gravity of the violation, it is concluded that a penalty of $40.00 per days is appropriate.

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.

ORDERED:

That the Notification of Failure to Correct Violation and of Proposed Additional Penalty is modified to reflect an assessment of a total additional penalty of $400.00, which penalty consists of $40.00 per day for four (4) days for each of the unabated items and an additional $40.00 for a previously allowed abatement credit for each of the items.