JERALD F. HUGHES, INC.

OSHRC Docket No. 5479

Occupational Safety and Health Review Commission

October 16, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge James D. Burroughs, dated September 4, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE: This proceeding arises 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). Respondent seeks review of a citation for serious violation and a citation for non-serious violation of section 5(a)(2) of the Act. Respondent also seeks review of the $500.00 penalty proposed for the alleged serious violation. No penalty was proposed for the non-serious violation.

The citations and notification of proposed penalties were issued on November 12, 1973, as the result of an inspection on November 2, 1973, of a workplace under the operation or control of the respondent and located at Columbia and Mound Streets, Marion, Ohio. Respondent was installing [*2] a sewer line at that location at the time of the inspection. The respondent, by letter dated November 21, 1973 and received on November 23, 1973, timely advised the complainant that it desired to contest the citations.

The citation for serious violation alleges that respondent violated section 5(a)(2) of the Act by its failure to comply with the safety standard published at 29 CFR 1926.652(e). The citation described the alleged violation as follows:

Failure to shore, slope, or otherwise support the sides of trenches at the trench for the sewer line just west of West Columbia and Mount Streets, Marion, Ohio.

The non-serious citation alleges that respondent failed to comply with the safety standard published at 29 CFR 1926.652(h). The alleged violation is described in the citation as follows:

Failure to provide an adequate means of exit, such as: a ladder or steps at the trench for the sewer line just west of West Columbia and Mount Streets, Marion, Ohio.

A complaint was filed on December 18, 1973. Paragraph VII of the complaint amended the citations pursuant to Commission Rule 33(a)(3). The standard allegedly violated in the serious citation was changed to 29 [*3] CFR 1926.652(c) and the description was amended as follows:

Failure to shore or otherwise support sides of trench in hard or compacted soil, including embankments, when trench is more than 5 feet in depth and 8 feet or more in length, or in lieu of shoring, sloping the sides of the trench above the 5 foot level to preclude collapse, such sloping not to be steeper than a 1-foot rise to each 1/2-foot horizontal.

Trench at West Columbia and Mound Streets, Marion, Ohio, in which respondent's employees were employed and working, was 16 feet in depth, 19 feet in length, 12 feet in width at the bottom, with its width at ground level being only 16 feet overall.

The non-serious violation was amended to describe the alleged violation of 29 CFR 1926.652(h) as follows:

Failure to provide an adequate means of exit, such as a ladder or steps, in a trench 4 feet deep or more, with such means of exit requiring no more than 25 feet of lateral travel. Respondent failed to provide any adequate means to exit, neither a ladder nor otherwise, in a trench 16 feet in depth and 19 feet in length and located at West Columbia and Mound Streets, Marion, Ohio.

Rule 15(a) of the Federal Rules of Civil Procedure [*4] permits a party to "amend his pleading once as a matter of course at any time before a responsive pleading is served." Commission Rule 33(a)(3) requires the complainant to set forth the reasons for amendment and to state with particularity the change sought whenever he seeks to amend the citation in his complaint. Complainant meticulously followed Commission Rule 33(a)(3) and the citations were properly amended in accordance with paragraph VII of the complaint.

A hearing was held in this matter on April 26, 1974, in Columbus, Ohio. No additional parties desired to intervene in the proceedings.

On June 12, 1974, a motion was filed by complainant to amend the pleadings to conform to the evidence. The motion seeks to add the following paragraph to the complaint:

In the alternative to the allegations of the standard and violation in Paragraph V(a)(1) herein, the Secretary of Labor alleges that on November 2, 1973, respondent violated the standard found at 29 CFR 1926.651(c), promulgated pursuant to Section 6 of the Act at 29 CFR 1910.12, in that the walls and faces of an excavation at Columbia and West Mound Streets, Marion, Ohio said excavation being 19 feet in length, [*5] 16 feet in depth, and having width dimensions of 12 feet at the bottom and 16 feet across the top, in which employees of respondent were exposed to danger from moving ground, failed to be guarded by respondent by a shoring system, sloping of the ground, or some other equivalent means, for which the sum of $800 should be assessed as a civil penalty for a serious violation of the aforesaid standard.

The motion also seeks to change the prayer as follows:

Wherefore, it is prayed that the Commission, after appropriate hearing, issue an order amending the citations as sought herein in Paragraph VII and in the alternative pleading set out in Paragraph VIII if the Commission finds that the excavation as alleged is not a trench within the meaning of 29 CFR 1926.653(n), affirming the said amended citations, and modifying the proposed penalty so as to assess respondent the sum of $800 n1 as a civil penalty for the serious violation.

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n1 The motion seeks an increase in the penalty from $500.00 to $800.00. Complainant's brief submits that the penalty should be increased to $800.00 for the reason that respondent should not be given any consideration for good faith. The disallowance of any reduction for good faith would only increase the penalty to $700.00.

[*6]

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JURISDICTION AND ISSUES

Respondent concedes that at all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein.

The following issues are pertinent to a disposition of this case:

1. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1926.652(c) or 29 CFR 1926.651(c) (in the alternative) and 29 CFR 1926.652(h)?

2. If a violation of 29 CFR 1926.652(c) is determined, should the violation be held to be a serious violation within the meaning of section 17(k) of the Act?

3. What penalty, if any, should be assessed for any violations of the Act?

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues in this case.

1. Respondent was incorporated in 1972. It is primarily engaged in excavation, grading, base paving and drainage operations. Substantially all of [*7] its business has come from the performance of contract and sub-contract work involving the construction and installation of sewer lines and related construction activities. (Par. 2, Stip.)

2. On November 2, 1973, the complainant, through a duly authorized compliance officer, conducted an inspection of respondent's workplace at West Columbia and Mound Streets, Marion, Ohio. Respondent was laying 78 inch sewer pipe at that location on a state highway project. Respondent was a subcontractor on the project.

3. Respondent was digging up the street to remove the old sewer line and installating a new one in its place. The old and new sewer lines consisted of 78 inch pipe.

4. The trench was 16 feet in depth and 19 feet in length. The width of the trench one foot from the bottom was 12 feet. It was 16 feet in width at the top. The slope of the trench was greater on the south side.

5. The trench was not shored or braced. No other type of protective device was being used in the trench at the time of the inspection. (Exs. 7, 8)

6. The consistency of the soil from which the trench was being dug was not uniform. The soil was loose and some cracking had occurred on the sides [*8] of the trench. The soil contained some sand and stones. (Exs. 2, 11)

7. The soil was not cohesive and did not adhere in large chunks as it was removed by the backhoe. It was usually in small pieces as it was being removed. (Ex. 14) The soil was of medium strength and contained some clay.

8. At a point approximately four feet from the bottom, soil had cracked away from the side. (Ex. 3) A two foot wide section of soil approximately four feet in length had cracked away from the side of the trench at the top southwest corner. (Ex. 13) The new pipe had already been laid at the point where the crack was located. (Ex. 13) There was also some soil give away on the cast edge of the trench near the backhoe. (Ex. 16) Soil had on previous occasions fallen into the trench.

9. Small puddles of water were in the bottom of the trench. (Exs. 1, 2, 3, 4, 5) The water had seeped into the trench from the old and new sewer pipe. (Exs. 4, 9, 10) The north, south and cast sides of the trench were damp.

10. An eight inch gas pipe was hanging loose on the northside of the trench. (Exs. 4, 5, 6, 7, 8, 11) A state inspector requested that respondent remove the pipe from the trench. [*9]

11. A backhoe was located approximately three feet from the edge of the east side of the trench. (Exs. 6, 7, 8, 12, 15, 16) Two trucks were located in the vicinity of the trench. One of the trucks was located approximately 30 feet from the trench. (Exs. 6, 8) The other truck was approximately 15 feet from the trench. (Exs. 6, 8, 14)

12. An employee was observed in the bottom of the trench taking a profile of the old sewer pipe to make certain that it was aligned with the new sewer pipe. A laborer was also observed in the trench during the inspection. (Ex. 9)

13. A trenching box was on the site and located east of and adjacent to the trench at the time of the inspection. (Ex. 9) The trench box was one foot wider than the pipe. (Exs. A, B, C)

14. The State required that the trench be 1-1/2 feet larger than the pipe on each side of the trench. Due to the size of the excavation, the trench box could not be used while respondent was excavating the trench.

15. The trenching box had been removed from the trench on the morning of the inspection in order to remove dirt that had fallen in the trench. The compliance officer appeared on the site immediately after [*10] the trench had been cleaned up and the gravel set.

16. Employees generally remained inside the new sewer pipe whenever the trenching box was not in the trench. (Exs. 3, 5)

17. Subsequent to the inspection, respondent placed the trenching box in the trench. (Exs. A, B, C)

18. A state inspector discussed shoring with respondent's superintendent at the time the sewer project was commenced. Another state inspector on at least two occasions discussed cave-ins occurring along the trenth with the respondent's superintendent.

19. One cave-in ran a distance of approximately twelve feet along the trench. It occurred at night.

20. The only means of exit from the trench was by climbing up the backfill. (Exs. 5, 6) There was a slope at the west end of the trench which had been backfilled. The backfill consisted of loose sand and gravel. The backfill material formed a slope of approximately 45 degrees from the bottom of the trench. (Ex. 5) The trench was being backfilled as the new pipe was being laid.

21. Complainant commenced with an unadjusted penalty of $1000.00 in computing the proposed penalty for the alleged trenching violation. (Ex. 17) The unadjusted penalty was reduced [*11] a total of 50-percent for good faith (20-percent), previous history (20-percent) and size (10-percent). (Ex. 17)

LAW AND OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. The standards, when properly promulgated under the provisions of the Act, have the force of law. Florida Peach Growers Assn. v. United States, 489 F.2d 120 (5th Cir. 1974)

Complainant alleges that respondent committed a serious violation of the standard promulgated at 29 CFR 1926.652(c) or, in the alternative, the standard promulgated at 29 CFR 1926.651(c). Complainant also alleges that respondent committed a non-serious violation of the standard published at 29 CFR 1926.652(h).

1. Alleged Violation of 29 CFR 1926.652(c)

Section 1926.652(c) of 29 CFR provides:

Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each [*12] 1/2-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

Complainant alleges that respondent failed to slope, shore or otherwise support the sides of a trench in hard or compacted soil in which employees were working. In the alternative, complainant seeks to amend the complaint to allege a violation of the standard published at 29 CFR 1926.651(c). Reliance on the amendment is essential in the event it is determined that an excavation rather than a trench was being dug by the respondent.

A trench is defined at 29 CFR 1926.653(n) as follows:

A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet.

The opening in the earth in which the sewer pipe was being installed contained a slight slope so that the top was 16 feet in width and the bottom was 12 feet in width. Respondent submits that if any width measurement is over 15 feet the excavation can not be considered a trench.

The definition is not explicit as to whether a trench can exceed 15 feet at any point of its width. [*13] The logical assumption is that the width measurement must be taken at the five foot level of the excavation in order to determine if it is a trench within the definition of 29 CFR 1926.653(n). This seems especially true in view of the fact that 29 CFR 1926.652(c) permits sloping of a trench above the 5-foot level as a safety measure rather than shoring or otherwise being supported. The adoption of respondent's logic would mean that a 12 feet trench would automatically become an excavation if the slope was greater than three feet. Since a three feet slope would be insufficient under the standard, the end result under respondent's argument would be that the sloping of a trench, even if not properly sloped, would be converted to an excavation and result in the application of a different standard. Such a result could only result in confusion as to the applicability of standards. A trench is not converted to an excavation for application of standards by some sloping at the top.

The width measurement of the opening was 12 feet at the one foot level. There is no indication of the width at the five foot level or at what point the slope of four feet commences. The opening [*14] was 16 feet in depth and it seems more likely that there was no more than a three feet slope between the one foot to five feet level. Accordingly, it is concluded that the opening was a trench and that a trench standard is applicable. n2 As respondent correctly notes, the standard for excavations (29 CFR 1926.651(c)) is generally the same as the trenching standard and the applicability of one standard or the other has no real bearing on the outcome as applied to the particular facts of this case.

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n2 In view of this determination, the motion to amend to conform to the evidence is rendered moot.

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The standard cited applies to hard or compact soil. Complainant states in his brief (pg. 9) that the compliance officer testified that the soil was hard and compact. The compliance officer did not so testify. Complainant's reference to the transcript shows that he testified that he advised respondent's superintendent that the respondent was in violation of the trenching requirements in regard to hard, compact soil. The [*15] compliance officer testified that the soil did not seem to be hard or compact.

The general condition of the soil as it was described by the compliance officer seems better described as being soft or unstable. He testified that the soil was loose and that some cracking had occurred on the sides of the trench. The cracking is also vividly reflected in the photographs introduced as exhibits 3, 5, 13 and 14. He further testified that the soil was not cohesive and did not adhere in large chunks as it was removed by the backhoe. It was usually in small pieces and tended to be loose as it was removed by the backhoe from the trench. There is also evidence that several cave-ins had occurred in the trenching operations.

The standard published at 29 CFR 1926.652(b) applies to trenches of unstable or soft material. It provides:

Sides of trenches in unstable or soft material, 5 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, (following paragraph (g) of this section).

The facts support the application of this standard rather than 29 CFR [*16] 1926.652(c) as alleged by complainant. Even though respondent was cited under 29 CFR 1926.652(c), it is concluded that the issue of whether respondent failed to comply with 29 CFR 1926.652(b) was tried by the consent of the parties. The underlying factual question to be decided was whether the trench was adequately sloped or shored. This issue was tried and respondent is not prejudiced by amendment of the pleadings to conform to the evidence presented at the hearing. As the Commission stated in Secretary of Labor v. Copelan Plumbing Company, Docket No. 867 (June 17, 1974):

There is overwhelming precedent in support of such amendments. In Brisk Waterproofing Co., Inc., No. 1046 (July 27, 1973), the Commission specifically endorsed this procedure. In Brisk we held that "[a]lthough we find respondent in violation of a different section of the Act than the Judge, the facts upon which the violation is based are identical." Amendment of pleadings to conform with evidence is expressly provided for in rule 15(b) of the Federal Rules of Civil Procedure and has been generally accepted as affording due process. See American Newspaper Pub. Ass'n v. N.L.R.B., 193 F.2d 782, [*17] 799 (7th Cir. 1951), cert. denied, 344 U.S. 812 (1952); Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 225 (1938).

The trench was 16 feet deep. Employees were observed in the trench during the inspection. The trench was not sloped, shored, sheeted, braced or otherwise supported by means of sufficient strength to protect employees as required by 29 CFR 1926.652(b). The violation has been established.

Respondent argues that it generally used a trench box n3 to protect employees but that it had been removed early on the morning of the inspection to remove some loose dirt from the trench. The fact remains that employees were observed working in the trench without any type of protection and were subjected to a possible cave-in. The standard is applicable to prevent such an occurrence.

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n3 The extent and manner of utilization of the trench box is open to some dispute. The width of the box did not allow its use at all times. The evidence clearly establishes this fact and respondent does not dispute it. Ryland Kemnerling, respondent's backhoe operator on the job, testified that the trench box was used "just once in awhile." Darrell Starcher, a laborer on the job, was asked how often the trench box was used and replied: "Oh, I don't know, Whenever they felt somebody was coming around."

[*18]

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Respondent's argument also presupposes that the trench box met the requirements of the standards. Section 1926.652(k) applies to trench boxes and provides as follows:

Portable trench boxes or sliding trench shields may be used for the protection of personnel in lieu of a shoring system or sloping. Where such trench boxes or shields are used, they shall be designed, constructed, and maintained in a manner which will provide protection equal to or greater than the sheeting or shoring required for the trench.

Since the trench box was not in issue, no evidence has been introduced to reflect that the trench box in use was "designed, constructed, and maintained in a manner which will provide protection equal to or greater than the sheeting or shoring required for the trench." There is no way to ascertain from the record whether equal protection was afforded employees even when the box was used.

Respondent also contends that there was only a brief entry into the trench by an employee to take a profile and that it should not be held in violation for such a brief entry. However, the evidence also establishes [*19] that other employees were observed in the trench. The compliance officer testified that three employees were observed in the trench and that one of them was taking a profile. The photograph introduced as exhibit 9 also clearly shows an employee in the trench. Darrell Starcher, a laborer, testified that he was in the trench on the day of the inspection laying pipe without the trench box or shoring being utilized.

Where an effective safety program is implemented by the employer, a brief and isolated violation of a standard by an employee does not necessarily constitute a violation of section 5(a)(2) of the Act by the employer. This presupposes that the violation is contrary to an employer's instructions and standards uniformly enforced and that the employer is without knowledge of the violation. See Secretary of Labor v. Standard Glass Company, Inc., 1 OSAHRC 594 (1972). This principle is inapplicable to the present facts since respondent's superintendent testified that he requested the employee take the profile. The employee was acting on instructions from the superintendent and not contrary to his wishes.

2. Alleged Violation of 29 CFR 1926.652(h)

Section [*20] 1926.652(h) of 29 CFR provides:

When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps shall be provided and located so as to require no more than 25 feet of lateral travel.

Complainant contends that respondent failed to provide adequate means of exit from the trench.

The evidence is undisputed that the only means of exit from the trench was by climbing up the backfill which formed a slope of approximately 45 degrees from the bottom. Respondent submits that this is an adequate means of exit and that it has complied with the requirement of the standard.

The standard does not state that a ladder or steps are the only means of compliance. Any manner of exit which is adequate will satisfy the standard. It does, however, state two specific means of compliance. If an employer chooses not to utilize steps or ladders, then it should be prepared to show that other means of exit are adequate.

The compliance officer testified that the backfill was loose and that he had to struggle in order to exit from the trench. Respondent's superintendent testified that the backfill was sloped approximately 45 degrees. The degree [*21] of slope and the fact that the soil was loose would make it difficult to exit from the trench. This conclusion was confirmed by the compliance officer. In view of these circumstances, it is concluded that the backfill did not provide an adequate means of exit. The phrase "adequate means of exit" is not deemed to have been complied with simply because an employee can struggle out of the trench. The violation has been established.

NATURE OF VIOLATION OF 29 CFR 1926.652(b)

Complainant contends that the violation of the trenching standards was a serious violation with the meaning of section 17(k) of the Act. This section provides as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Section 17(k) requires two findings prior to determining [*22] that a violation constitutes a serious violation. These are: (1) substantial probability that death or serious physical harm could result from the violation, and (2) that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation.

In Secretary of Labor v. Natkin and Company, 2 OSAHRC 1472 (1973), the Commission stated that the occurrence of an accident because of an existing hazard in violation of the Act need not be substantially probable in order for a violation to be serious. An accident must simply be possible. Serious and non-serious violations "are distinguished on the basis of the seriousness of injuries which experience has shown reasonable likely to occur." The probability of an accident occurring is deemed relevant to the gravity of the violation and is considered in the process of assessing an appropriate penalty. See, Secretary of Labor v. Emory H. Mixon,

The evidence is undisputed that respondent had actual knowledge of the presence of employees in the trench while it was not properly sloped, shored, braced, or otherwise supported. The employee taking the profile [*23] entered the trench at the specific instructions of respondent's superintendent. Respondent was also aware of the difficulty in using the trench box and should have, by the exercise of reasonable diligence, known of the exposure of other employees to the possibility of a cave-in. The issue must be resolved on the degree of probable injury.

The type of injury to sustain a violation of section 17(k) must be one that will cause death or serious physical harm. If the more likely consequence is something less than death or serious physical harm, the violation is not serious. There are no statistical guidelines which assist in formulating a reasonable judgment. An evaluation of the specific facts existing in each case must be made and judgment formed in light of the statutory definition.

The trench was 16 feet deep. In the event of a cave-in, there was a strong likelihood that the employee would have been covered by the moving earth. Such an occurrence could easily have resulted in death. It is common knowledge that cave-ins have on past occasions resulted in death in situations where the depth of the trench has not been as great as in this case. Accordingly, it is determined [*24] that the violation of 29 CFR 1926.652(b) was a serious violation.

PENALTY DETERMINATION

The Commission is required by section 17(j) of the Act to find and give "due consideration" to the size of the employer's business, the gravity of the violations, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. Secretary of Labor v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972). In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The principal factor to be considered is the gravity of the offense. 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. Secretary of Labor v. National Realty and Construction Company, Inc., 1 OSAHRC 731 (1972), reversed on another issue, 489 F.2d 1257 (D.C. Cir. 1973).

No penalty was proposed for the [*25] non-serious violation of 29 CFR 1926.652(h) and it is concluded that none is warranted. A penalty of $500.00 was initially proposed for the trenching violation. In his motion to amend and brief, complainant seeks to have the penalty raised to $800.00 by the disallowance of any reduction for good faith. After consideration of the factors specified by section 17(j), with emphasis on the gravity of the violation, it is concluded that a penalty of $500.00 is warranted.

The trench was being dug along an area that had in the past been dug to place the old sewer and gas lines. The soil was loose and there had been cave-ins along the line. While the cave-ins occurred at night this did not prevent one from occurring during the day. Two cracks in the soil were observed at the time of the inspection. The backhoe was being used within three feet of the trench and would undoubtedly have caused some vibrations. Trucks were also operated in close vicinity to the trench.

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 [*26] subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated section 5(a)(2) of the Act by its failure to comply with the standards published at 29 CFR 1926.652(b) and 29 CFR 1926.652(h).

4. The violation of 29 CFR 1926.652(b) was a serious violation within the meaning of section 17(j) of the Act.

5. A penalty of $500.00 is assessed for the serious violation of 29 CFR 1926.652(b). No penalty is warranted or assessed for the non-serious violation of 29 CFR 1926.652(h).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED:

(1) That the non-serious citation issued to respondent on November 12, 1973, is affirmed as amended by the complaint;

(2) That the serious citation issued to respondent on November 12, 1973, is affirmed as amended by the complaint and this decision to reflect a serious violation of 29 CFR 1926.652(b); and

(3) That the notification of proposed penalty issued respondent on November 12, 1973, is affirmed.