Docket No. 306

KESLER AND SONS CONSTRUCTION COMPANY

OSHRC Docket No. 306

Occupational Safety and Health Review Commission

July 8, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Donald K. Duvall, dated December 29, 1972, is before the Commission for review pursuant to 29 U.S.C. § 661(i). That decision, to the extent that it assesses additional penalties for failure to abate a violation of 29 U.S.C. § 654(a)(2), is hereby reversed.

On November 4, 1971, a representative of complainant pursuant to the provisions 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), inspected a worksite where respondent had employees engaged in sewer construction. As a result of this inspection a citation was issued to respondent on November 15, 1971, for alleged noncompliance with certain occupational safety and health standards. The citation provided that all such conditions be abated "immediately."

On November 30, 1971, complainant's representative reinspected the sewer construction project and found the same conditions to exist. Pursuant to 29 U.S.C. § 659(b) complainant then issued to respondent a notification of proposed additional penalties in the amount of [*2] $1,339.00, allegedly because of its failure to abate in accordance with the terms of the November 15th citation.

It is our view that the reinspection of November 30th was premature and that the notification of proposed additional penalties for failure to correct the violations cited on November 15th was therefore invalid.

29 U.S.C. § 659(a) provides that once an employer has received an initial notice of proposed penalties for violations alleged in a citation, that employer has fifteen working-days within which to notify the Secretary of Labor that he wishes to contest the citation. In order to preserve this statutory right to the 15 working-day period, no abatement may be required and no reinspection may be conducted for the purpose of enforcing such abatement during this period. To hold otherwise would be to allow the Secretary of Labor to abrogate a right Congress extended to employers by statute.

In the instant case respondent could not have been required to abate the cited conditions until December 7th, the 15th working day after receipt of the November 15th citation.

Before the termination of the 15 working-day period (at which time, if uncontested, a citation [*3] becomes a final order of the Commission: 29 U.S.C. § 659(a)) that citation is no more than an accusation. The "violations" therein are only allegations of noncompliance, and Congress clearly intended them as such. n1 It would be unreasonable to require an employer to expend time, money, and labor to make changes in his workplace in order to "correct" conditions which may or may not be in compliance with the regulations. Until such time as the conditions can be deemed violations under the law by virtue of being a final order of the Commission, an employer cannot be compelled to institute corrective procedures. Any requirement to do so, any reinspection within that time, and any additional penalties arising therefrom are without force and effect.

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n1 29 U.S.C. § 658(a) speaks of a citation as being an "alleged" violation. Further, this concept is established time and again in the legislative history of the Act. See e.g. Subcommittee on Labor of the Committee on Labor and Public Welfare, United States Senate, Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, P.L. 91-596), 92d Cong., 1st Sess. 298, 425, 1223 (1971).

[*4]

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It may appear that this ruling establishes a "grace" period which in certain instances may not comport with the requirement of 29 U.S.C. § 658(a) that a citation "fix a reasonable time for abatement." Indeed, we are well aware that there may be conditions where the magnitude of the danger warrants immediate correction. However, the Act provides for just such circumstances by affording the Secretary the opportunity for immediate relief in imminent danger situations. See 29 U.S.C: § 662.

Were we to require corrective measures to be taken prior to the termination of the 15 working-day period, we would seriously prejudice the employer who takes the entire period and ultimately decides not to contest the citation. By exercising his statutory right to use the full 15 working-days to consider his response to the action against him, he would thereby subject himself to penalties of up to $1,000.00 a day for every day he has not abated beyond the deadline stated in the citation. On the other hand, had he filed notice of contest immediately upon receipt of the citation, the running of the abatement period [*5] would be suspended until the entering of a final order of the Commission. 29 U.S.C. § 659(a). n2 Of course, if the abatement period is to be established as "immediately," as in the citation at issue here, there could be situations where it would be physically impossible for an employer to avoid a failure-to-abate situation even if the filed a notice of contest on the same day he received the citation.

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n2 29 U.S.C. § 659(b) states in pertinent part:

If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings initiated by the employer in good faith and not solely for delay or avoidance of penalties) . . . (emphasis supplied)

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The obvious result of a rule contrary to that set forth herein would be the filing of notices of contest solely for the purposes of forestalling [*6] the abatement period and protecting the respondent's statutory right to its full 15 working-day period for deciding whether or not to contest the enforcement action. This outcome would unnecessarily clutter the docket of this Commission and impede the administration of the Act.

Consequently, we find that a failure-to-abate action will not lie prior to the establishment of an abatement date pursuant to an order of this Commission.

In all other respects, the decision of the Judge is affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I respectfully dissent. The majority opinion in this case reflects a strained construction of the Act that is plainly inconsistent with the Act's express Congressional purpose of assuring "so far as possible every working man and woman in the Nation safe and healthful working conditions."

The majority has advanced the position that in issuing a citation the Secretary may not set an abatement date shorter than the 15 working-day period in which an employer can contest the citation and abatement date set by the Secretary. Furthermore, the majority opinion prohibits the Secretary from issuing notices of failure to correct a violation within [*7] the same 15 working-day period.

Section 9(a) of the Act specifically provides that the citation "shall fix a reasonable time for the abatement of the violation." Section 10(b) of the Act expressly provides for the issuance of notices of failure to correct a violation. These two sections are not limited in any way by the words of the Act itself. The majority, however, now reads into these sections an implied limitation emanating from the notice of contest provision of section 10(a). The majority concludes that to preserve this right of contest, no abatement may be required and no reinspection may be conducted during the 15 working-day period.

This conclusion is based on two related premises. The first is that a citation is nothing more than an accusation or allegation that an employer has violated the Act. The second is that because the citation does not become a final order of the Commission until the end of the 15 working-day period, it is not an effective order until that time. If the basic purpose of the Act is to be served, the word "citation" must be read in a different context.

The word "citation" is a technical word having a specific meaning. The cases [*8] overwhelmingly hold that the word "citation" means a command or order to the person to whom it is addressed. For example, one court defined citation in this way:

A citation is a writ issued out of a court of competent jurisdiction, commanding the person therein named to appear on the day named and do something therein mentioned, or to show cause why he should not.

Johns v. Phoenix Nat'l Bank, 6 Ariz. 290, 56 P. 725, 726 (1899). See also 14 C.J.S. Citation 1125 (1939). This ordinary meaning should be applied under section 9(a) of the Act.

The text of section 10(a) expressly indicates that when a citation is not timely contested, it becomes a " final order" of the Commission. The use of the adjective "final" further suggests that a citation itself at an earlier stage is also an order, albeit a preliminary order. Consequently, when an employer receives a citation he is commanded to comply with its terms, including any requirement for abatement, regardless of the time prescribed for abatement. If the citation (preliminary order) is not contested within the statutory 15 working-day period, then the citation and its abatement requirement would become [*9] a final order under section 10(a).

The majority has given three reasons why the Secretary should not be permitted to order abatement within 15 working-days. The first reason is that it would be unreasonable to expect an employer to spend time, money, and labor to correct conditions that may or may not be in violation. This contention is totally without merit. If an employer believes that he has not violated the Act, he can file promptly a notice of contest that will toll the abatement period. The second reason, that permitting abatement dates short of 15 working-days might encourage the filing of notices of contest solely to toll abatement, also lacks merit. Under the scheme of the Act, attempts to forestall abatement by filing a spurious notice of contest or petition for modification of abatement is, regrettably, always possible. The express terms of section 10 recognize this, and seek to deal with situations where contests are filed only for delay.

The majority's final reason is that by permitting abatement dates of less than 15 working-days, it would prejudice the employer who takes the entire period and who ultimately decides not to contest, in that he would be subject [*10] to $1,000 per day between the abatement date and end of the 15 working-days. The need of an employer to have the full 15 working-days to decide on a contest under these circumstances must be balanced against the unlimited power of the Secretary to order immediate abatement under section 9(a). The Act does not expressly strike the balance. However, considering the remedial purpose of the Act it would seem appropriate to require a more prompt decision by the employer on whether to contest the citation n3 or to abate in accordance with its terms. When faced with competing considerations of an inconvenience to employers and a continued risk of injury and illness to employees, the purpose of the Act suggests that the protection of the employees is paramount. Referring to the Fair Labor Standards Act, n4 the Fourth Circuit stated in Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209, 213 (4th Cir. 1967): "Remedial social legislation of this nature is to be construed liberally in favor of the workers whom it was designed to protect."

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n3 Ironically, the same majority concluded in Chicago Bridge & Iron Co., No. 744 (January 23, 1974), that the Secretary must issue a citation within three working-days following his investigation, except under extraordinary circumstances. The rationale behind this decision was that it would encourage prompt abatement. Nevertheless, the same majority now holds that even though the citation must be issued within three working-days to promote abatement, the abatement may not be ordered for another 15 working-days. This paradoxical 'hurry-up and wait" procedure could hardly have been intended by Congress.

n4 29 U.S.C. § 201 et seq.

[*11]

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The majority seeks to blunt the harsh effects of its "grace period" for abating hazards by calling attention to the fact that the Secretary has recourse under section 13 of the Act to the Federal district courts for injunctive relief in "imminent danger" situations. This argument, however, ignores the realities in obtaining temporary restraining orders from the Federal district courts; assumes the requisite manpower resources of the Secretary to do so (not to speak of the burden on the courts); and is irrelevant to the vast number of situations where an abatement period of less than 15 working-days is warranted but there is not imminent danger. n5

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n5 In Eastern Assoc. Coal Corp. v. Interior Bd. of Mine Oper. Appeals, 491 F.2d 277, 278 (4th Cir. 1974), the Fourth Circuit defined an "imminent danger" under the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 814(a), in the following way:

[A]n imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal operations were permitted to proceed in the area before the dangerous condition is eliminated. (Emphasis in original.)

[*12]

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Notwithstanding my view that the majority opinion is erroneous, I do not believe that the Commission should base its decision in this case on a legal theory on which the parties did not have an opportunity to be heard. The issue of the validity of a reinspection with 15 working-days was not raised by either party; it was not raised at the hearing; it was not raised in the direction for review; and it was not briefed. To decide the case on this issue, therefore, violates procedural due process and the notice requirement of the Administrative Procedure Act, 5 U.S.C. § 554(c). As the District of Columbia Circuit noted in National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973): "It is patently unfair for an agency to decide a case on a legal theory or set of facts which was not presented at the hearing." Id. at 1267 n. 40, citing Bendix v. F.T.C., 450 F.2d 534, 542 (6th Cir. 1971); Rodale Press, Inc. v. F.T.C., 407 F.2d 1252 (D.C. Cir. 1968). Thus, this issue is not properly before the Commission.

[The Judge's decision referred to herein follows] [*13]

DUVALL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting a notification of failure to abate violations (alleged in an earlier citation not contested by Respondent) and a second citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) and 10(b) of the Act. The first citation, incorporated by reference in the notification of failure to abate, alleges that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Oakley, Utah and described as a sewerage construction job, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication in the Federal Register on May 29, 1971, (36 F.R. 10469), and codified in 29 CFR Part 1518 as adopted by 29 CFR Section 1910.12.

The cited standards as promulgated by the Secretary of Labor, the description of the alleged violations, and the time for abatement [*14] of same contained in said citation and the pertinent proposed penalties contained in the notification of proposed penalty, both issued by Complainant to Respondent on November 12, 1971, state as follows:

Item 1. 29 CFR 1518.652(b): Sides of trenches in unstable or soft material, 4 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See tables P-1, P-2.

Alleged violation: At the sewerage construction job locations in Oakley were two men involved in a trench box in which the soil was not cut back to the required angle of repose. -- Immediately -- $30.00.

Item 2. 29 CFR 1518.51(a)(1): An adequate supply of potable water shall be provided in all places of employment.

Alleged violation: At Oakley Sewerage Construction job drinking water was not provided at two work locations. -- Immediately -- $6.00 (including penalty for item 3).

Item 3. 29 CFR 1518.51(c)(2): Under temporary field conditions provisions shall be made to assure not less than 1 toilet facility is available.

Alleged violation: At Oakley Sewerage Construction job toilet facilities were not [*15] provided -- Immediately -- Penalty included with item 2.

Item 4. 29 CFR 1518.200(g)(1): Construction areas shall be posted with legible traffic signs at points of hazard.

Alleged violation: At Oakley Sewerage Construction job warning signs were not provided. -- Immediately -- $3.00.

Item 5. 29 CFR 1518.50(f): The telephone numbers of the doctors, hospitals and ambulances shall be conspicuously posted. Alleged violation: At Oakley Sewerage Construction job the telephone numbers of the doctors, hospitals, and ambulances were not posted. -- Immediately -- $3.00.

Item 6. 29 CFR 1910.132: (a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. (b) Employee-owned equipment. [*16] Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

Alleged violation: At Oakley Construction job foot protection was not provided (at least 4 men). -- Immediately -- $3.00.

Item 7. 29 CFR 1903.2: (2) 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. Each employer shall take steps or insure that such notices are not altered, defaced or covered by other material.

Alleged violation: At Oakley job the OSHA poster was not posted. -- Immediately -- $30.00

Based upon reinspection of Respondent's workplace [*17] on November 30, 1971, Complainant issued to Respondent on December 3, 1971, notification of failure to correct violation and of proposed additional penalty. Relating to items in the first citation, this notification proposed the following total additional penalties for failure to abate:

Item 1. -- $1,030.00

Item 2. -- $103.00

Item 4. -- $103.00

Item 6. -- $103.00

Grand total additional proposed penalties -- $1,339.00.

The second citation, which was issued on December 3, 1971, alleges as Item 1 violation of the Act by reason of Respondent's alleged failure to comply with standard 29 CFR 1903.16, promulgated by the Secretary by publication in the Federal Register on September 4, 1971 (36 F.R. 17850). The cited standard, description of alleged violation, and date for correction as contained in the citation and the proposed penalty contained in the notification of proposed penalty issued on December 3, 1971, state as follows:

Item 1. 29 CFR 1903.16: (a) Upon receipt of any citation under the Act, the employer shall immediately post such citation, or a copy thereof, unedited, at or near each place an alleged violation referred to in the citation occurred, except as [*18] provided below. Where, because of the nature of the employer's operations, it is not practicable to post the citation at or near each place of alleged violation, such citation shall be posted, unedited, in a prominent place where it will be readily observable by all affected employees. For example, where employers are engaged in activities which are physically dispersed, the citation may be posted at the location to which employees report each day. Where employees do not primarily work at or report to a single location, the citation may be posted at the location from which the employees operate to carry out their activities. The employer shall take steps to insure that the citation is not altered, defaced, or covered by other material. Notices of de minimus violations need not be posted. (b) Each citation, or copy thereof, shall remain posted until the violation has been abated, or for three working days, whichever is later. . .

Alleged Violation: Citation Number 1 issued on November 12, 1971, and received by Company on November 15, 1971, was not posted at the time of our reinspection on November 30, 1971. -- Immediately -- $45.00.

By its Notice of Contest filed with the Commission [*19] on December 17, 1971, Respondent contested only the notification of failure to correct violation and of proposed additional penalty issued on December 3, 1971, and the second citation and notification of proposed penalties issued on the same date. [The first citation and notification of proposed penalty issued on November 12, 1971, must be deemed a final order of the Commission pursuant to Section 10(a) of the Act.] After Respondent contested this enforcement action, a complaint and answer were filed by the parties and a hearing in the case was held before the undersigned Judge at Salt Lake City, Utah on April 27, 1972.

Thereafter, on November 17, 1972, the Judge issued to the parties a notice to show cause why Complainant's notification of failure to correct violation and of proposed additional penalty, issued November 12, 1971, insofar as it relates to Part 1518 of Title 29, Code of Federal Regulations, should not be dismissed for lack of Commission jurisdiction over the subject matter. This question of jurisdiction, while not raised specifically at the hearing, was based on evidence of record that the workplace conditions cited herein as alleged violations of the [*20] Act relate to a sewerage system construction project which Respondent bid on in February 1971, following advertisement for bids by the Town of Oakley, Utah, on a federally assisted contract basis (Tr. 147-149, 206, Respondent's Exhibit R-1). In light of these facts, the safety and health regulations for construction (29 CFR Part 1518; 36 F.R. 7340, April 17, 1971), adopted as occupational safety and health standards under Section 6 of the Act (29 CFR 1910.12; 36 F.R. 10469, May 29, 1971), appeared to the Judge to be inapplicable to the subject project by reason of the following provision stated in the preamble of 29 CFR Part 1518:

The rules are applied only to new construction contracts which are advertised on or after the seventh day following publication of this document in the Federal Register.

Similarly, 29 CFR 1518.1050 Effective dates (general), provides in pertinent part that ". . . the safety and health standards published in Subparts C through U of this part shall become effective on April 24, 1971. . ."

The sole issues to be decided herein are: (1) Whether the Commission has jurisdiction over those items of Citation Number one relating to the occupational safety and [*21] health standards for construction (29 CFR Part 1518, now Part 1926); (2) If so, whether four of the violations alleged in citation number one, as to which a final order of the Commission has run, continued and were uncorrected on November 30, 1971 (the reinspection date); (3) If so, whether the proposed additional penalties for failure to abate said violations were reasonable and appropriate pursuant to Section 17 of the Act; (4) Whether item 1 of Citation number two, issued on December 3, 1971, constitutes a violation of the cited standard; and (5) If so, whether the notification of proposed penalty issued on December 3, 1971, was reasonable and appropriate under Section 17 of the Act.

DISCUSSION

Respecting the jurisdiction issue, Complainant's brief in response to the notice to show cause contends that 29 CFR 1910.12 adopted only the substantive provisions of the Contract Work Hours and Safety Standards Act (the so-called Construction Safety Act) and not the provisions restricting its applicability. In support of this contention, reference is made to the provision in 29 CFR 1910.12 stating that the adopted construction standards "shall apply, according to the provisions [*22] thereof, to every employment and place of employment of every employee engaged in construction work" (Emphasis added). Respondent further contends that this interpretation is reinforced by the recent republication of the occupational safety and health standards, wherein a new subparagraph (c) has been added to 29 CFR 1910.12 (37 F.R. 22104, October 18, 1972), which emphasizes that the substantive standards published in Part 1926 (formerly 1518) under the Act establish duties for employers which are not dependent for their application upon any contractual relationship with the Federal Government or upon any form of Federal financial assistance, to-wit:

(c) Construction Safety Act distinguished. This section adopts an occupational safety and health standards under section 6 of the Act the standards which are prescribed in Part 1926 of this chapter. Thus, the standards (substantive rules) published in Subpart C and the following subparts of Part 1926 of this chapter are applied. This section does not incorporate Subparts A and B of Part 1926 of this chapter. Subparts A and B have pertinence only to the application of section 107 of the Contract Work Hours and [*23] Safety Standards Act (the Construction Safety Act). For example, the interpretation of the term "subcontractor" in paragraph (c) of § 1926.13 of this chapter is significant in discerning the coverage of the Construction Safety Act and duties thereunder. However, the term "subcontractor" has no significance in the application of the Act, which was enacted under the Commerce Clause and which establishes duties for "employers" which are not dependent for their application upon any contractual relationship with the Federal Government or upon any form of Federal financial assistance.

Complainant might also argue that the definition of occupational safety and health standard in Section 3(8) of the Act as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment", means that a standard, to be adopted, must be directly related to employee safety, i.e., a substantive rule of safety.

In view of the purpose and policy of the Act, as stated in Section 2(b), "to assure so far as possible every working man and woman in the [*24] Nation safe and healthful working conditions and to preserve our human resources", it may be assumed that Congress intended the Act to have the broadest applicability to the fullest extent of its terms, reasonably interpreted and applied. Accordingly, Complainant stresses that under the provisions of 29 CFR 1910.12 (quoted above) the adopted construction standards apply to "every employer . . . engaged in construction work." The argument is that since 29 CFR 1910.11 describes the scope and purpose of 1910.12 as adoption and extension of the applicability of established Federal standards in effect on April 28, 1971, adoption of the construction standards was intended not to carry with it the limitation of applicability respecting advertised Federal and federally assisted contracts.

In order words, even employers under contracts to which the established Federal construction standards in effect on April 28, 1971, did not apply (including this Respondent) are subject to such standards, as adopted, if they are covered by the Occupational Safety and Health Act. Now and on the critical inspection dates of November 4 and 30, 1971, Respondent was clearly an employer with [*25] employees engaged in construction work affecting interstate commerce within the purview of the Act (Tr. 173-176), and therefore, covered by the Act (Sections 3, 5). Complainant's position is that Respondent, being covered by the Act and the pertinent standards having been in effect since August 27, 1971, Respondent was subject to the occupational safety and health standards for construction on November 4 and 30, 1971, the dates its worksite was inspected by Complainant as the basis for the later issued citations.

On the other hand, Respondent might argue that 29 CFR 1910.12 provides that only those standards prescribed by Part 1518 which were in effect on April 28, 1971, are adopted as occupational safety and health standards under the Act and that since Respondent's federally assisted contract was bid prior to April 24, 1971, and, therefore, by specific provision of Part 1518, not subject to the standards contained therein, said standards were not in effect on April 28, 1971, with respect to this Respondent and, consequently, the adopted standards were not applicable to Respondent on the dates material in this case. This argument raises a number of questions of interpretation, [*26] such as whether "in effect" relates to the objective promulgation of Part 1518 generally or the subjective applicability of Part 1518 to this particular Respondent or class of employers. But examination of such interpretive questions appears unnecessary upon consideration below of other provisions contained in Part 1910 (preamble).

Respondent might also argue that under Section 1910.12 the adopted construction standards apply "according to the provisions thereof", referring to the "standards prescribed by Part 1518" and that part, as previously noted, both in its preamble and in Section 1518.1050, specifically provides that the construction standards are to be applied "only to new construction contracts which are advertised on or after . . . April 24, 1971." The preamble of Part 1518 also contains the following explanatory statement: "The time lag in the procurement process, together with the time periods specified, are considered sufficient to afford affected persons reasonable time to take such action as may be necessary to comply with the rules." 29 CFR Part 1518; 36 F.R. 7340 (April 17, 1971). It might be argued that the thrust of this statement, with particular reference [*27] to "the time periods specified" confers upon Respondent's special class of employers (i.e., those with construction contracts advertised before April 24, 1972) a vested right or privilege (namely, excemption from the adopted Construction Safety Act standards) upon which Respondent was entitled to rely.

But closer examination of other relevant provisions in Part 1910 appear to nullify the validity of the foregoing arguments assertable by Respondent. In its preamble, 29 CFR Part 1910 (36 F.R. 10466, May 29, 1971) provides that "The established Federal standards are operative occupational safety and health standards in effect on April 28, 1971, and established by the Department of Labor pursuant to section 107 of the Contract Work Hours and Safety Standards Act, as amended (40 U.S.C. 333)," among other statutes. This Part 1910 further provides in pertinent part as follows:

The effective date of the established Federal standards is also delayed for 90 days, but only for employers and employments not subject to any of the statutes listed in the preceding paragraph. The purpose of the delay is to insure that affected employers and employees would be informed of the existance [*28] of the standards and of their terms, and to give such employers and employees an opportunity to familiarize themselves with the requirements of the standards before their application. (Emphasis added).

The Contract Work Hours and Safety Standards Act (so called Construction Safety Act) is one of the statutes listed in the preceding paragraph referred to above. The question is whether Respondent was an employer "subject to" that statute at the material time within the meaning of Part 1910.29 CFR 1518.11(b) provides that "To be covered by section 107 of the Contract Work Hours and Safety Standards Act, a contract must be one which (1) is entered into under a statute that is subject to Reorganization Plan No. 14 of 1950 (64 Stat. 1267); and (2) is for 'construction, alteration, and/or repair, including painting and decorating.'" Since the Contract Work Hours and Safety Standards Act (the statute covering the cited construction contract) is under Reorganization Plan No. 14 (29 CFR 1518.12) and the contract is for construction of a sewerage system Respondent here would seem to be "subject to" the Construction Safety Act within the meaning of Part 1910.

But Part 1910 (preamble) [*29] further provides as follows:

However, for established federal standard which correspond to occupational safety and health standards (1) promulgated under any of the statutes listed in the preceding paragraph and (2) applicable to any employer and any employment by virtue of any of such statutes, no delay in effective date is provided with respect to such employer and employment. In the case of employers and employments subject to standards issued under such statutes, familiarity already exists.

It may reasonably be inferred from these provisions that "subject to" the statute is intended to mean that the statute is applicable to the contract or employer. In the case at bar, the statute specifically provided that it was applicable only to new construction contracts advertised on or after April 24, 1971, and thus was not applicable to Respondent. Accordingly, it is reasonable to conclude that for Respondent, as for other employers falling within the class not subject to any of the statutes listed in Part 1910 (preamble), August 27, 1971 (90 days after promulgation) is the effective date of the construction standards adopted as occupational safety and health standards by operation [*30] of 29 CFR 1910.12. It should be noted that Part 1910 recognizes only two categories of employers and employments in providing for the effective date of the adopted construction standards: (1) those employers or employments subject to any of the statutes listed therein (including the Contract Work Hours and Safety Standards Act) and (2) those not subject to any of said statutes.

The only provision in Part 1910 (preamble) for additional delay in effective date states as follows:

An additional delay in effective date until February 15, 1972, is provided and codified in the new Part 1910 in sections within Subparts G, H, I, L, N, O, P, R, and S in situations where additional time is considered necessary to adjust to the new standards.

Under the subheading "Effective date", Part 1910 (preamble) provides as follows:

The occupational safety and health standards in new Part 1910 shall become effective on August 27, 1971, except: (1) Where additional delays in effective date are specifically provided, and (2) with respect to any employment and place of employment which, on a date before August 27, 1971, is or becomes subject to any safety and health standard prescribed in 29 [*31] CFR Parts 505, 1501, 1502, 1503, 1504, 1516, or 1518, or in 41 CFR Part 50-204, any corresponding occupational safety and health standard in Subpart B of this Part 1910, or in Subpart D through S which are from 41 CFR 50-204, shall also become effective, and shall be applicable to such employment and place of employment, on such earlier date. For example, whenever a standard promulgated under the Contract Work Hours and Safety Standards Act and contained in 29 CFR Part 1518 is applicable to an employment and places of employment by virtue of the performance of a construction contract on a date before August 27, 1971, the corresponding standard prescribed by § 1910.12 of new Part 1910 shall also become effective on the same date with respect to such employment and places of employment. However, this effective date provision shall not be deemed to relieve any employer of any duty under section 5(a)(1) of the Act to furnish to each of his employees employment and a place of employment which are free from recognizing hazards that are causing or likely to cause death or serious physical harm to his employees, or to relieve the Secretary of Labor of his responsibilities and authority [*32] under section 13 of the Act to initiate enforcement proceedings to counteract imminent dangers, where any employer breaches such duty under section 5(a)(1).

The provision for "additional delay" contained in (1) above is deemed to refer only to the additional delay in effective date specifically defined in the preceding paragraph and not to additional delay in effective date by reason of the advertised bid cut-off date provision in the Construction Safety Act. This interpretation is reinforced by the fact that the only other exception to the August 27, 1971, effective date provision provided in Part 1910 (preamble) is when the adopted construction standard has an effective date earlier than August 27, 1971. Actually, the advertised bid date limitation is not a delay in effective date but a complete exclusion of the particular contract from the specific construction standards adopted. The subsequent provision in Part 1910 (preamble) asserting, in effect, the applicability of Section 5(a)(1) of the Act even in cases of delayed effective date of the specific standards is also consistent with this interpretation, since it may relate to the additional delay situations [*33] specified in Part 1910, namely, sections in Subparts, G, H, I, L, N, O, P, R, and S.

To the contrary, Respondent might argue that the effective date provision in Part 1910 (36 F.R. 10466, May 29, 1971) provides that "the occupational safety and health standards in new Part 1910 shall become effective on August 27, 1971, except: (1) Where additional delays in effective date are specifically provided. . ." The immediately preceding paragraph in Part 1910 stated that "An additional delay in effective date until February 15, 1972, is provided and codified in the new Part 1910 in sections within Subparts G, H, I, L, N, O, P, R, and S in situations where additional time is necessary to adjust to the new standards." But "additional delays" might also refer to the limitation of applicability of the construction standards in those Federal or federally assisted contracts advertised on or after April 24, 1971, as specifically provided in Part 1518.

Such an interpretation would be consistent with the provisions of Section 1910.12, which, having adopted only those standards prescribed by Part 1518 in effect on April 28, 1971, could not make effective as occupational safety and [*34] health standards this special class of advertised bid contracts which by specific provision in the Construction Safety Act, were specifically excluded, by negative inference, from the applicability of such standards. Presumably, the purpose of limiting the applicability or effectiveness of the standards for this special class of contract was to provide adequate notice of the standards to employer-contractors before they bid on government construction contracts. Since such preferential treatment for this special class of contracts was obviously intended by Part 1518 when it was promulgated on April 17, 1971, notwithstanding the previous extended period of time which the construction industry had to become familiar with the standards, it is difficult to justify, absent a specific provision in Part 1910, abandonment of such a basic provision of limited applicability just a little over a month later, on May 29, 1971, when Part 1910 was published.

Indeed, by its own terms, the legislative purpose of Part 1910 was "to establish, as rapidly as possible . . ., standards with which industries are generally familiar, and on whose adoption interested and affected persons have already had an [*35] opportunity to express their views." 29 CFR 1910.1. Industry's familiarity with the construction standards necessarily included awareness of their limited applicability respecting advertised government contracts. Nor is there any pertinent intrinsic difference between a Federal or federally assisted construction contract and a non-government construction contract which would render the advertised contract limitation inapt or inappropriate when applied to non-government construction contracts. Since the apparent purpose of the limitation is to protect contractors bidding on construction projects, what's sauce for the goose would seem to be equally valid and desirable sauce for the gander. If the adopted standards are intended to follow the established Federal standards when the latter prescribe an earlier effective date (as prescribed in Part 1910) it is arguable that they should also follow the established Federal standards which have a specifically provided later effective date that is reasonable and consistent with the Act.

The argument that such a limitation is inconsistent with the stated purpose of Section 1910.11 to "extend" the applicability of the established [*36] Federal standards is only partially valid, since the effect of Section 1910.12 was to extend the construction standards to all construction work; the limitation applies only to contracts not advertised on or after April 24, 1971, and even these contracts, effective August 27, 1971, are subject to the provisions of Section 5(a)(1) of the Act, as prescribed in the preamble to Part 1910 (36 F.R. 10466, May 29, 1971).

It should be noted that in the republished Part 1910 (37 F.R. 22102, 22105, October 18, 1972) the preamble is shortened and the effective date provisions are included in a new Section 1910.17, minus the reference to Section 5(a)(1). While the republished Part 1910 (promulgated on October 18, 1972, almost a year after Respondent was inspected) may be cited to clarify the intent of provisions of the original Part 1910 (assuming that the provision, as claimed therein, does not make any substantive changes in the standards), it is the language and provisions of the original Part 1910, and reasonable reference to be drawn therefrom, which were in effect at the time of Respondent's alleged violations of the cited standards.

Notwithstanding the foregoing appealing [*37] arguments on Respondent's behalf, the overriding factor is that the clear, unequivocal and unqualified provision in the preamble of Part 1910 requires that the effective date of the Act for employers and employments subject to the Construction Safety Act (or other statutes listed) is May 29, 1971 (date of publication of occupational safety and health standards) and for employers and employments not subject to that Act is August 27, 1971 (90 days after promulgation). Since Respondent must necessarily fall in one of these categories (probably the latter), the adopted construction standards are applicable to it no later than August 27, 1971, over two months prior to the dates of inspection (November 4 and 30, 1971) upon which Complainant's citations of alleged violations are based. I would therefore deny the motion to dismiss for lack of jurisdiction of the subject matter upon good cause shown.

This conclusion is consistent with the latest amendment of 29 CFR 1910.11, published in 37 F.R., No. 236 on December 7, 1972, which reads in pertinent part as follows:

(b) It bears emphasis that only standards (i.e., substantive rules) relating to safety or health are adopted by any incorporations [*38] by reference of standards prescribed elsewhere in this chapter or this title. Other materials contained in the referenced parties are not adopted. . . Similarly, the incorporation by reference of Part 1926 in sec. 1910.12 is not intended to include references to interpretative rules having relevance to the application of the Construction Safety Act, but having no relevance to the application to the Occupational Safety and Health Act.

With respect to citation number one, item 1 (trench angle of repose). Complainant's contention is that with or without the trench box the cited trench was in violation of 29 Section 1518.652(b) on November 30, 1971, by reason of an improper angle of repose (Tr. 26-27). While there is some conflict in the evidence as to the stability and nature of the soil in which the trench was dug, consideration of the relevant testimony of inspector Gonzales (Tr. 37, 48, 61, 72-73, 76-78), area director Hines (Tr. 88, 101-102), engineer Adams (Tr. 128-129), president Dene Kesler (Tr. 145, 154, 162, 172, 175), superintendent Panting (Tr. 187), and backhoe operator Carlson (Tr. 197) indicates that in terms of Table P-1, incorporated in cited standard, [*39] the soil was average to compacted, thus requiring no more than a 1:1 (45 degree) sloping of the trench sides. In view of the presence of moisture (hydrostatic pressure) and the nature of soil conditions, a 1:1 slope seems most consistent with the standard (the contract specifications (p. 3.1.3) required a 1/2:1 minimum slope. Respondent's Exhibit 1). The testimony, corroborated by photographs of the trenching job (Complainant's Exhibits C-1 through C-3), show that this required angle of repose was lacking on November 4, 1971, assuming as shown by the evidence a trench 10 feet deep, 6 feet wide at the 6 foot level, 7 feet wide at the top (ground surface) using a trench box 6 feet deep and 4 feet wide.

The evidence respecting the trench situation on November 30, 1971, is not so clear. While the trenching job inspected on this date was the continuation of the same job and in the same general area as that inspected on November 4, it was some distance south of the worksite previously inspected and involved a power pole (Tr. 38, 81). By Mr. Gonzales' measurements, the trench was 10 feet deep, 6 feet wide at the 6 foot (from the base) level and an estimated 7 feet wide [*40] at the 10 feet or surface level (Tr. 82). Mr. Gonzales further stated that the sides of the trench were "almost vertical" (Tr. 79). Mr. Hines testified that the "off-shore" side of the trench (presumably the left side as shown on the trench photos taken on November 30, Complainant's Exhibits C-4, 5 and 6) was virtually vertical and the other (right) side was cut back some, but had a lot of over-burden or excavated material on it (Tr. 90-91). Indeed, Mr. Hines stated that he was concerned with the vertical side and not with the angle of repose of the right side (Tr. 91). Photo C-5 appears to confirm that part of the left side of the trench was lacking any substantial angle of repose. Mr. Adams' unrebutted testimony was that the trench sides had a slope of about 10 degrees (Tr. 128) and were "pretty vertical" (Tr. 133), although he did state that one side might be knocked down a little because the trench box usually had to be slid into place (Tr. 133).

Mr. Kesler testified that on a 1:1 basis the slope on a trench 4 feet deep (from the top of the trench box) should be a trench width at the surface of 4 feet on each side plus the width of the trench box (4 feet), or a total of [*41] 12 feet (Tr. 158). Mr. Kesler stressed that regardless of the slope angle, particularly where, as here, there is a difference in elevation between the trench sides, it was Complainant's practice to allow an additional foot and a half between the box and the sides of the trench in order to allow for material from the sides which inevitably trends to roll down (Tr. 159). Even so, and allowing for any photographic margin of distortion, photo C-5 clearly shows that at least part of the left side of the trench was lacking the requisite angle of repose, with or without the trench box. However, Mr. Kesler alleged that the box was askew and not in line with the pipeline as shown in photo C-5 and that this unfairly obscured or distorted the actual or proper angle of repose (Tr. 171). Mr. Kesler estimated that there was approximately 6 feet on the right hand side (Tr. 158), which when added to the width of the box (4 feet) and the extra foot between the box side and the left wall totals 11 feet, which appears credible when compared with the forefront of the trench shown in photo C-5. But such a width does not characterize the entire trench shown, is one foot short of the angle [*42] of repose required with the box, and 3 feet short of the angle of repose required without the box even on a 1/2:1 basis, which was the status of the trench when inspected on November 30.

While not raised by the parties, a procedural question concerning the propriety of issuance of a failure to abate notification respecting this item 1 violation requires some discussion. Full reading of the pertinent evidential record suggests that whereas Respondent has been cited for failure to abate with respect to item 1 it could and possibly should have been cited for a repeated violation. Evidence of record indicates that the item 1 violation alleged in the citation number one issued November 12, 1971, was substantially corrected on or about November 4, 1971 (Tr. 58-59, 150, 156) and that the item 1 violation on November 4 (for alleged insufficient angle of repose of one section of trench) and the alleged violation on November 30 (for alleged insufficient angle of repose of another section of a continuation of the same trench) should be treated as "two transactions" (Tr. 99) or separate (repeated) violations of the same standard.

Complainant's Compliance Operations Manual (OSHA-2006, p. VIII-8 [*43] January 1972), which is the guideline provided by the Occupational Safety and Health Administration to assure effective and uniform implementation of the Act, states that "a repeated violation differs from a failure to abate in that repeated violations exist where the employer has abated an earlier violation and, upon later inspection, is found to have violated the same standard." The distinction is significant in that Section 17 of the Act prescribes stiffer penalties for repeated violations (Section 17(a)) than for failure to abate violations, (Section 17(d)). Whether or not that difference in penalties would affect or change the additional penalty proposed for item 1 in the first citation herein, if the notification of failure to correct violation and of proposed additional penalty issued on December 3, 1971, for the reasons set forth above, appears inappropriate and improper insofar as the item 1 violation in citation number one is concerned, then the additional proposed penalty as to that item cannot be sustained legally under the Act.

While Complainant is bound to apply its own published rules and regulations consistently in enforcing the Act, due process does not [*44] require such a slavish devotion to technicality as to preclude Complainant from exercising reasonable judgmental latitude in issuing its citations and notifications in appropriate specific factual situations. It is arguable, of course, that only a citation for repeat violation will lie in this type of trenching project since, perforce, the sides of the trench are filled and eliminated soon after each section of pipe is laid. Technically, therefore, in this series of repeat (not continuing) violations, each being corrected within a short time (not necessarily within the time allowed for abatement). But such a technical view, would require Complainant in all such cases to cite the employer for repeated violations and to propose the related heavier penalties (up to $10,000 for each violation) which would likely lead to some harsh, even unconscionable results. It also appears that a notification of failure to abate is proper where the alleged violation was not corrected within the abatement time allowed (immediately in this case). Here, the evidence is ambiguous as to whether the alleged insufficient angle of repose observed on November 4, 1971, was fully corrected [*45] that same date (Tr. 58-60).

There is no affirmative evidence showing exactly what the angle of repose of both sides of the cited trench was as it progressed southward during the continuing period of time prior to the November 30 inspection, although the inference Complainant would have us draw from the record evidence of inadequate angle of repose in the trench on November 4 and 30 is that Respondent failed to abate within the time allowed (other than temporarily, if at all) the insufficient angle of repose observed on November 4 with respect to this same trench (albeit another part of it) on the same sewer pipe project, in the same general area with about the same soil conditions (Tr. 10, 73, 81).

In these circumstances, absent any pertinent procedural objection or substantial rebuttal by Respondent of the inferred angle of repose of the trench sides during the period intervening between November 4, and 30, and bearing in mind the broad purpose of the Act to provide safe and healthful working conditions, I am constrained to consider the notification of failure to correct violation and of additional proposed penalty not improper as to item 1 of citation number one as a matter of [*46] law and substantially supported by the facts of record and the reasonable inferences to be drawn therefrom.

Respecting citation item 2 (potable water), the record establishes that Respondent did not have an adequate supply of potable water at its Oakley worksite on November 4 or November 30 (Tr. 32, 38, 68, 92, 129, 150, 182). It appears that this citation item was never taken seriously by Respondent because it was considered that water was not desired by the employees, was available at a gas station 800-1000 feet away and was impractical due to daytime temperatures which ranged up to 35 degrees (Tr. 207, 193, 195, 150, 68-69). While a cooler for water was brought to the worksite sometime after November 4, it was not used consistently (Tr. 129). The cited standard, while subject to reasonable interpretation, requires potable water at the place of employment without reference to the desires of the employees, the availability of water elsewhere, or the weather. Even assuming freezing temperatures during the day at that time of year, as to which there is a conflict in the evidence, placement of the water in an insulated thermos in the shed on the job would seem, as suggested [*47] by Complainant's counsel, to overcome the impracticality argument (Tr. 182, 195).

Respecting citation item 4 (traffic signs), the evidence establishes that Respondent's worksite paralleled a dirt road and that, in fact, the trench cut into 6 inches of the road, with excavated material covering part of the rest of the road, at least on November 4, 1971, on which date no traffic signs were posted on either end of the construction site. On November 30, 1971, a stand-mounted flasher was posted on the side of the road just north of the worksite (Complainant's Exhibit C-7; Tr. 32-33, 38-40, 75). There was testimony that a 2-foot square sign which said "men working" was tilted on its side and resting against a barricade at some undetermined time (Tr. 129, 130, 132). There was also credible testimony that two "men working" signs were brought to and posted at each end of the worksite within one week after November 4 and that the road was shut down to vehicular traffic (Tr. 151, 164). This was a local town road with three houses at one end which were reachable by another road during the day, and at night the worksite road, cleared every night, was used (Tr. 164-165).

There [*48] is considerable conflict in the evidence respecting this item. Whereas inspector Gonzales testified that on November 30 there was but one standmounted flasher (without writing) by the roadside at the northern approach to the worksite (Tr. 39, 75), superintendent Panting stated that on November 30 there were 6 standmounted flashers, with caution printed on the bottom boards, placed along the trench and during the day one of these was placed at one end of the street to close it down (Tr. 183-184). The record suggests that the caution flasher signs did not meet the requirements of the cited standard (Tr. 39), but that public utility signs (4X4 on a big stand) would suffice pending specific clarification from Washington (Tr. 186). Between November 4 and November 30, two "men working" signs were brought and presumably posted (Tr. 151), but one of these may have fallen over (Tr. 130) or been left in the truck (Tr. 133).

While traffic signs and caution signs appear to be separate requirements under the standards (compare Section 1518.200(c) and (g)), Complainant has not clearly established what signs were required to meet the cited standard. Placement of the caution signs along the trench, [*49] as alleged by Mr. Panting and/or placement of "men working" signs at both ends of the worksite might constitute a sufficient posting of "legible traffic signs at points of hazard." But photo C-8, taken reasonably close to the south end of the worksite on November 30 shows no caution, "men working", or traffic sign in place. On balance, there is substantial evidence that Respondent did not fully correct this item 4 violation within the prescribed period of abatement.

Respecting citation item 6 (foot protection), the testimony of inspector Gonzales (Tr. 33, 40, 67, 75-76) and Mr. Adams (Tr. 131), establishes that at least one employee who worked in the trench lacked steel-typed protective shoes on November 4 and November 30, 1971. Mr. Kesler stated that protective shoes were purchased on November 30 or December 30, 1971; that notwithstanding the November 12, 1971, citation he had not ordered additional protective shoes because his two pipelayers already had such shoes and Mr. Adams, as backup pipelayer, was not in the trench consistently (Tr. 151-152, 168-169). Complainant has sustained its burden of proof as to this item, and all factors considered, the proposed additional [*50] penalty of $103 does not appear inappropriate.

Respecting item 1 of citation number two (posting citation number one), the testimony of inspector Gonzales (Tr. 41-42), Mr. Hines (Tr. 93), Mr. Adams (Tr. 130), and Mr. Kesler (Tr. 152-153, 163-164) establishes that on November 30, 1971, citation number one was not posted at or near Respondent's Oakley worksite. Mr. Kesler did testify that this citation was posted in Respondent's warehouse at 2339 South 3270 West in Salt Lake City, where most of Respondent's employees come at least once a week, with the exception of those on the cited worksite who live in Heber City (Tr. 153). Respondent's counsel contends that the cited project is a moving project, unlike a fixed building, suggesting that it was not practicable to post the citation near the place of alleged violation, as provided in 29 CFR Section 1903.16.

Nevertheless, the evidence shows that there was a shed at or in the vicinity of Respondent's workplace in which other government notices were posted (Tr. 41). Whether or not all employees at the worksite went to this shed, the record does not show that it was impracticable to post the citation there, where the alleged [*51] violations occurred and readily observable by all affected employees. The fact that Respondent posted the citation at its warehouse general office, apparently because it was unaware that it had to be posted at a particular project (Tr. 208), may be considered a mitigating factor in assessing the civil penalty for this violation of the cited standard, which penalty I would reduce to $20.00.

Respecting the appropriateness of the proposed penalties, Respondent's counsel urges that consideration be given to the fact that Respondent is a small business ($65,000 net income for 1970; one pipelaying crew of 6-9 employees), that, in Respondent's opinion, the cited standards are not clear and should be reasonably applied; inadequate notice of them was given to Respondent; and the two OSHA inspections were too brief to fairly represent conditions at Respondent's worksite over the 6-8 month period required to complete the trenching project there.

The record shows that, in accordance with its established internal procedures, Complainant computed the initial proposed penalties (totaling $75.00) set forth in the notification issued on November 12, 1971, on the basis of consideration of Respondent's [*52] history of violations under the Act (none at that time-maximum credit), size (less than 20 employees-maximum credit), and good faith (partial safety program -- 10% credit), and abatement (then assumed -- 50% credit) (Tr. 113-117). The record further shows that in computing the additional penalty for failure to correct, as shown in the notification issued on December 3, 1971, Complainant reduced each of the aforestated credits to zero and considered the severity/gravity of each item to arrive at a proposed daily additional penalty which was multiplied by the number of working days (10) beyond the citation deadline for correction, plus the 50% adjustment factor (abatement credit), which resulted in a total additional proposed penalty of $1,339.00 (Tr. 118-123).

Taking into consideration Respondent's efforts to correct some violations, particularly citation items 1 and 4, prior to November 30, 1971, and Respondent's small size relative to similar firms in the same industry, I would modify the additional proposed penalty so as to reduce it to a total of $1,005.00. For similar reasons, I would reduce the proposed penalty for citation number two, item no. 1, issued on December [*53] 3, 1971, to $20.00. This would result in assessment of total penalties in the amount of $1,100.00, including the $75.00 total penalty proposed in connection with citation number one, which has been deemed a final order of the Commission and not subject to review by any court or agency.

FINDINGS OF FACT

The record herein as a whole contains reliable, probative, and substantial evidence to support the following findings of fact:

1. Respondent is a Utah Corporation, having its principal place of business located at 2359 South 3270 West, Salt Lake City, Utah (Tr. 173, Answer, page 1).

2. Respondent is a construction company concerned primarily with the installation of water or sewer lines and sprinkling systems. Respondent employs one pipeline crew and considers itself small in size for the industry, having a net worth in 1970 of approximately $65,000.00 (Tr. 174).

3. Respondent does engage in out-of-state projects and utilizes pipe manufactured in the Midwest and thus is engaged in interstate commerce (Tr. 176, Answer, paragrah 3).

4. The contract for the Oakley Sewerage Construction project was bid by Respondent in February 1971, signed in June 1971, with notification [*54] to proceed received by Respondent September 1, 1971 (Tr. 148-149).

5. Mr. Carlos Gonzales, a Compliance Officer with the Occupational Safety and Health Administration, United States Department of Labor, made an official inspection of Respondent's workplace, being a sewer construction job outside of Oakley, Utah, on November 4, 1971, and again on November 30, 1971, being accompanied on the reinspection date by Mr. Charles F. Hines, Area Director of the Occupational Safety and Health Administration at Salt Lake City, Utah.

6. On the basis of Mr. Gonzales' inspection on November 4, 1971, Complainant issued to the Respondent a citation and notification of proposed penalty both dated November 12, 1971, which citation and notification of proposed penalty were not contested by the Respondent within fifteen working days from the receipt by the Respondent of the notice issued by the Secretary (Respondent's notice of contest dated December 13, 1971, filed with the Commission on December 17, 1971, Item 3, Commission's file).

7. On the basis of the reinspection by Mr. Gonzales and Mr. Hines on November 30, 1971, Complainant issued to Respondent on December 3, 1971, a notification [*55] of failure to correct violation and of proposed additional penalty, and citation number two and notification of proposed penalty also issued December 3, 1971, which citation and notifications were first contested by the Respondent by letter dated December 13, 1971, and filed with the Commission on December 17, 1971 (Notification of failure to correct violation and of proposed additional penalty, Notice of contest dated December 13, 1971).

8. The affected employees of Respondent, who have no authorized representative, have not asserted party status in this proceeding (Complaint, Tr. 3-4).

9. On November 30, 1971, as its worksite at Oakley, Utah, Respondent operated or controlled a trench in which it way laying sewer pipe, which trench at or near its then southern-most point was approximately 10 feet deep, 6 feet wide at a height of 6 feet, and about 7 feet wide at ground surface with considerable excavated material piled on its west side and an angle of repose of about 10 degrees on part of its east side. The soil in which the trench was dug consisted of granular material, rock, sand, and pebbles with considerable moisture, fairly hard and stable at the top of the trench, but [*56] becoming less stable in the lower portion of the trench. A trench box 6 feet deep and 4 feet wide was in the trench part of November 30, 1971, being customarily used by Respondent on this job except when intersecting gas lines or power poles, as here, precluded use of the trench box for short periods of time (Tr. 37, 128, 154-155, 185; Complainant's Exhibits C-4, 5 and 6).

10. On November 4, 1971, at its worksite at Oakley, Utah, Respondent operated or controlled a trench, of which the trench in Finding of Fact 9 above was a southward extension, whose insufficient angle of repose on its sides at or near its then southern-most point was at least partially corrected to the satisfaction of OSHA inspector Carlos Gonzales on the same date (Tr. 58-59; Complainant's Exhibits C-1, 2 and 3).

11. On November 4 and 30, 1971, and, with the exception of at least one day between those dates, there was no drinking water at Respondent's worksite (Tr. 32, 38, 68, 92, 129, 150, 182).

12. On November 4, 1971, there was no traffic sign posted at either end of Respondent's worksite (Tr. 33). The following week Respondent posted two "men working" signs at the worksite and on November [*57] 30, 1971, 6 "caution" flasher signs were placed along the trench at the worksite, including one at the north end of the worksite on the roadside (Tr. 151, 165, 183-184, Complainant's Exhibit C-8). There were no men working, caution or traffic signs at the south end of the worksite on November 30, 1971 (Tr. 38-40, Complainant's Exhibit C-8).

13. A backup pipelayer, one of Respondent's employees, worked in the cited trench on or about November 4 through November 30, 1971, although not consistently, without wearing steel toe protective shoes, which were not furnished to him during that time, thus exposing him to the hazards of trench conditions, including water, falling rocks and debris (Tr. 33, 40, 67, 75-76, 131).

14. On November 30, 1971, citation number one, issued on November 12, 1971, was posted at Respondent's general office warehouse in Salt Lake City, but not at or in the vicinity of Respondent's Oakley worksite where the cited violations of occupational safety and health standards occurred and where two other government notices were posted (Tr. 41-42, 93, 130, 152-153, 163-164).

15. In computing the proposed total additional penalty for failure to abate and [*58] the proposed penalty contained in the notification of failure to correct violation and of proposed additional penalty issued on December 3, 1971, and the notification of proposed penalty issued on December 3, 1971, respectively, Complainant considered the gravity of the alleged violations, Respondent's good faith and history under the Act, and the size of Respondent's business (Tr. 118-123; Complaint, page 7).

CONCLUSIONS OF LAW

1. Respondent is and, at all times material hereto, was an employer within the meaning of Section 3(5) of the Act, being engaged in a business affecting commerce with employees.

2. Respondent is and, at all times material hereto, was subject to the requirements of the Act, including Section 5(a)(2), and the standards duly promulgated thereunder.

3. Pursuant to Section 6 of the Act, by publication of 29 CFR Section 1910.12 in the Federal Register of May 29, 1971 (36 F.R. 10469, et seq. ), Complainant duly adopted and promulgated the following occupational safety and health standards, set forth in the Code of Federal Regulations, Title 29 (36 F.R. 7340, et seq. ), which became effective on or about August 27, 1971: Sections 1518.652(b); 1518.51(a)(1); [*59] 1518.51(c)(2); 1518.200(g)(1); 1518.50(f).

Also pursuant to Section 5 of the Act, by publication in the Federal Register of September 4, 1971 (36 F.R. 1780 et seq. ), Complainant duly promulgated the occupational safety and health standards set forth at 29 CFR Sections 1903.2 and 1903.16, which became effective on or about October 4, 1971.

4. The Commission has jurisdiction of the parties and the subject matter herein under the provisions of Section 10(c) of the Act.

5. Citation number one, issued by Complainant to Respondent on November 12, 1971, and containing seven items of occupational safety and health standards allegedly violated, and the related notification of proposed penalty issued by Complainant to Respondent on the same date, and containing a total proposed penalty of $75.00, being uncontested by Respondent within the prescribed statutory period, are to be deemed a final order of the Commission pursuant to Section 10 of the Act.

6. Citation number two, issued by Complainant to Respondent on December 3, 1971, and containing one item of occupational safety and health standards allegedly violated; the related notification of proposed penalty in the total [*60] amount of $45.00, issued by Complainant to Respondent on the same date; the notification of failure to correct four of the items of standard violations alleged in citation number one and proposed additional penalty therefor, issued by Complainant to Respondent on the same date; and Respondent's notice of contest to this citation and notifications are deemed to have been properly served or posted in accordance with the notice and service requirements of the Act, including Section 9 thereof, and the pertinent regulations duly promulgated thereunder, including Section 2200.7 of the Commission's Rules of Procedure (29 CFR Part 2200; 36 F.R. 17409, 17410, August 31, 1971).

7. During the period November 4 through November 30, 1971, Respondent violated the occupational safety and health standard set forth at 29 CFR Sections 1518.652(b), 1518.51(a)(1), 1518.200(g)(1), and 1910.132. Accordingly, the notification of failure to correct violation and of proposed additional penalty, issued on December 3, 1971, should be affirmed with the grand total additional penalty modified to $1,005.00, consistent with the provisions of Section 17(j) of the Act.

8. On November 30, 1971, Respondent [*61] violated the occupational safety and health regulation set forth at 29 CFR Section 1903.16. Accordingly, citation number two and the related notification of proposed penalty, both issued on December 3, 1971, should be affirmed with the total penalty modified to $20.00, consistent with the provisions of Section 17(j) of the Act.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, good cause appearing, it is hereby ORDERED, that:

1. Complainant's notification of failure to correct violation and of proposed additional penalty, issued to Respondent on December 3, 1971, be and hereby is affirmed, with the modification that the grand total additional penalty for failure to abate is assessed at $1,005.00.

2. Complainant's citation number two and notification of proposed penalty, both issued to Respondent on December 3, 1971, be and hereby are affirmed, with the modification that the total penalty is assessed at $20.00.