MARINO DEVELOPMENT CORPORATION
OSHRC Docket No. 1040
Occupational Safety and Health Review Commission
October 9, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge Henry K. Osterman dated February 15, 1973 is before the Commission for review pursuant to the provisions of 29 U.S.C. § 661(i).
Judge Osterman found the respondent violated an occupational safety and health standard set out at 29 C.F.R. § 1926.652(b) in that there had been a failure to shore, sheet or brace the sides of a trench more than five feet in depth located in unstable soil. He rejected the $500 penalty proposed by the complainant and assessed a penalty of $700.
For the reasons which follow we reverse the Judge as to the penalty, but affirm his opinion in all other respects.
In discussing the question of penalties Judge Osterman notes that the compliance officer testified that a 20% allowance was granted for good faith in accordance with the formula approach to penalties followed by the Secretary of Labor. He felt that since the good faith allowance was based only on the cooperativeness of the respondent during the investigation it should not be allowed.
We have previously commented that in assessing penalties a Judge should make an independent [*2] evaluation of the factors set out in 29 U.S.C. § 666(i). n1 We have also said that the factors need not be given equal weight in arriving at a penalty determination. n2 It does not appear that these factors were considered by the Judge who seemed only concerned with the allowance for good faith.
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n1 Secetary v. Dreher Pickle Co., 2 OSAHRC 497 (1973).
n2. Secretary v. Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972).
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Evidence of good faith can be shown by conduct of the respondent either before or after the time of the alleged violation. The phrase good faith is not capable of precise definition but must be ascertained from the facts in each case. On the facts in this case we feel the Judge erred in not giving some weight to the cooperation given the compliance officer by the respondent after the accident, particularly as it is the only credible evidence of record bearing on the existence of or lack of good faith.
Considering the small size of the business, the fact that only one employee was exposed [*3] to the hazard for a short period of time, the existence of some evidence of good faith and the lack of any history of previous violation, we feel that $500 is an appropriate penalty.
ORDERED that the finding of a violation be affirmed and a penalty of $500 be assessed.
CONCURBY: CLEARY (In Part)
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with the majority only insofar as they affirm the Judge's finding that respondent failed to comply with 29 CFR § 1926.652(b). The majority, however, reverses the Judge's assessment of a $700 penalty for this violation and reduces the penalty to $500. I cannot concur with this reassessment. On the facts of this case, I would affirm the Judge's assessment.
Respondent, in its brief on review, n3 raises two issues that the majority does not consider. Because of the nature of these issues, they must be dealt with before the factual basis for the penalty assessment can be examined.
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n3 The Secretary declined to submit a brief on review to this Commission, choosing instead to rely on his trial brief which did not address itself to the two issues to be discussed below.
[*4]
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Respondent's first argument is that the assessment of civil penalties by the Commission pursuant to section 17(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as "the Act") is an unconstitutional denial of due process. Respondent contends that the penalties are in fact criminal in nature and, therefore, respondent was denied basic constitutional safeguards such as trial by jury.
The Occupational Safety and Health Review Commission is a quasi judicial administrative agency. It is a settled principle of law that administrative agencies do not posses the power to determine the constitutionality of the statutes they administer. Public Utilities Comm'n. of Cal. v. United States, 355 U.S. 534, 539-40 (1958; Panitz v. District of Columbia, 112 F.2d 39 (D.C. Cir. 1940); Divesco Roofing & Insulation Co., No 345 (August 13, 1973) (Cleary, Commissioner, Concurring). Thus, the Commission has no power to resolve the respondent's constitutional challenge. Jurisdiction to resolve such constitutional issues rests with [*5] the circuit court of appeals following a petition for review under section 11(a) of the Act.
Respondent also argues that the Commission has no power to assess penalties higher than those proposed by the Secretary. There is both judicial and Commission precedent supporting the Commission's power to assess penalties which exceed those proposed by the Secretary. REA Express, Inc. v. Brennan & O.S.H.R.C., 495 F.2d 822 (2d Cir. 1974); Wetmore & Parman, Inc., No. 221 (January 18, 1973).
I am aware of the language in Dale M. Madden Constr., Inc. v. Hodgson & O.S.H.R.C., No. 72-1874 (9th Cir. July 29, 1974), reh. denied, October 1, 1974, that the Commission may not assess penalties in excess of those proposed by the Secretary. n4 The question before the court in Madden, however, was whether the Secretary could compromise penalties assessed by the Commission. Moreover, the court in Madden relied on the Commission's decision in Wetmore & Parman, Inc., supra. Yet in Wetmore & Parman we held only that we could not find a violation greater in kind than that alleged by the Secretary. In fact, in Wetmore & Parman, we assessed a penalty which exceeded [*6] the penalty proposed by the Secretary. Thus, in light of the above, it is clear that the Commission has the authority to assess penalties higher than those proposed by the Secretary.
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n4 On October 1, 1974, the Ninth Circuit issued an order deleting this language from its Opinion in Madden.
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The Secretary, under section 10(a) of the Act is charged with the duty to propose penalties to be assessed by the Commission. Once a proposed penalty is contested by the employer the Secretary's proposed penalty becomes merely advisory to the Commission. n5 The Commission must assess a penalty de novo giving due consideration to the penalty assessment factors n6 in section 17(j). This de novo assessment cannot be limited by the Secretary's proposed penalty without the Commission abdicating its statutory responsibility to consider all the penalty assessment criteria of section 17(j). Thus, as in this case, if the Judge finds that the Secretary misapplied the penalty assessment criteria, he must be free [*7] to reject the Secretary's proposed penalty and assess a higher or lower penalty accordingly.
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n5 See Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973) for an excellent discussion of the roles of the Secretary and the Commission in penalty determination once an employer contests a proposed penalty.
n6 These factors include the size of the employer's business, the gravity of the violation, the employer's good faith and the history of previous violations.
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As the majority notes, the term good faith is not capable of precise definition but must be ascertained from the facts in a particular case. At the hearing the compliance officer testified that a 20 percent allowance for good faith was made based upon respondent's cooperation in supplying information after the inspection. In rejecting this allowance, Judge Osterman held that this cooperation after the event, standing alone, n7 is not sufficient to support a finding of good faith. The majority explicitly rejects the Judge's conclusion [*8] noting that respondent's cooperation was the only evidence bearing on the existence of or lack of good faith.
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n7 Although the compliance officer testified that the sole reason for the allowance was respondent's cooperation, the area director testified that, on the question of good faith, the fact that respondent had a "safety man" was considered in granting the allowance.
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After examining the Judge's decision and the testimony in this case, I cannot concur with the majority's conclusion that respondent's cooperation was the only credible evidence bearing on the question of good faith. Rather, I find ample evidence on the record of a lack of good faith on the part of respondent.
The inspection by the Secretary in this case was precipitated by a trench cave-in that caused the death of one of respondent's employees. The deceased employee was respondent's foreman in charge of safety. The fact that respondent's safety officer was working in a trench that was in obvious non-compliance with 29 CFR § 1926.652(b) [*9] is a good indication of the ineffectiveness of respondent's safety program. The presence or absence of an effective safety program bears directly on the good faith of an employer. In fact, in rejecting the Secretary's allowance for good faith Judge Osterman noted:
Moreover, from the circumstances which led to his death, it would appear that the deceased was not entirely qualified to serve in the capacity of "safety man." This reduction in penalty should be disallowed.
The mere fact that an employer's safety officer was unaware of an obvious hazard is enough to cast doubt on his capacity to serve as a safety officer. When, however, this inability to perceive an obvious danger is coupled with activity by that safety officer which compounds the hazard, there is little doubt as to his inability to serve as a safety officer. Respondent's safety officer was pounding on a pipe with a sledge hammer while in the trench. Respondent's expert testified that such pounding could create a "sonic shock" capable of causing a cave-in. While the Judge correctly rejected respondent's contention that the "sonic shock" caused a cave-in in hard and compact soil, respondent's "sonic shock" theory [*10] indicates that the hazard of a trench in unstable and soft material was compounded by the safety officer's hammering. Such careless activity by a person charged with safety on the jobsite indicates that respondent's safety program was token and ineffectual.
Thus, considering the circumstances of the accident, I see no reason to disturb the Judge's disallowance of a reduction for good faith and his assessment of a $700 penalty in this case.
[The Judge's decision deferred to herein follows]
OSTERMAN, JUDGE: This is a proceeding initiated by the Marino Development Corporation, Respondent herein, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter called the Act) to contest a Citation for a Serious Violation dated June 1, 1972, and a Notice of Proposed Penalty of even date issued by the Secretary of Labor to the Respondent pursuant to Section 9(a) of the Act.
The regulation allegedly violated, the abatement date, and the proposed penalty is as follows:
Serious violation -- Abatement Date -- Penalty
29 CFR 1926.652(b) as adopted by 29 CFR 1910.12 as amended [Failure to shore, sheet, brace, slope, etc. the sides [*11] of a trench in unstable material 5 feet or more in depth to protect employees] -- Immediate -- $500.00
On June 15, 1972, Respondent timely filed a Notice of Contest directed against both the alleged violation and the proposed penalty. A Complaint and Answer were filed on July 3d and July 10th, respectively. Hearing was held in Boston, Massachusetts on November 3, 1972. Oral and documentary evidence was received from both parties to the proceeding.
Employee representatives did not appear and were not represented at the hearing. Trial briefs were filed by both parties subsequent to the hearing.
ISSUES
The Regulation involved provides, in effect, that the sides of a trench more than 5 feet in depth, if located in unstable soil, must be shored, sheeted, braced, sloped, or otherwise supported by means sufficiently strong in order to protect employees working in the trench.
It was stipulated inter alia by the parties that the Respondent is an "employer" engaged in a business "affecting commerce" within the meaning of Section 3(5) of the Act, n1 that the latest gross annual income from Respondent's business was $75,000.00, and that the average daily number of employees for Respondent [*12] for the current year is four (Joint Exh. No. 1). The parties also stipulated that on May 16, 1972, the sides of the trench in question were not shored, sheeted, braced, or otherwise supported (Tr. 12, 99-100).
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n1 Respondent's Answer denied that he was an "employer" engaged in a business "affecting commerce" within the meaning of the Act. This defense was withdrawn by stipulation.
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The Respondent, however, contends (1) that the trench in question was not more than 5 feet in depth and (2) that the soil in which the trench was dug was not "unstable" soil.
DISCUSSION
The Secretary produced five witnesses, three of whom were called to the scene of the trench in question on May 16th immediately after receiving reports of a fatality resulting from the collapse of the wall of the trench. The fourth witness, the compliance officer, made an inspection later that day and the fifth witness was called to justify the penalty proposed by the compliance officer who issued the Citation to Respondent.
Police Sergeant [*13] Turcotte arrived at the scene approximately 25 minutes after receiving a call (Tr. 18). He observed a trench leading into a catch basin and proceeded to take photographs of the excavated area and the body of the deceased lying at the bottom thereof (Tr. 5, C-1 through C-6). He testified that the trench where the collapse occurred was approximately 7 feet in depth (Tr. 9, 14-15); that the width at the top of the trench at that point was approximately 6 feet and that the width at the bottom of the trench was about 3 feet (Tr. 13).
Sergeant Turcotte also testified that the fireman shown standing in the trench in Exhibit C-1 is known to him to be 5 feet 8 inches tall (Tr. 8, 9) and that he is standing in the trench on a shelf or ledge at a level which was above the level of the victim's body (Tr. 9, 14). This witness also testified that during the 30 minutes he was present at the scene he observed dirt falling into the hole from the side walls of the trench (Tr. 15); that the elongated portion of the trench leading into the catch-basin was approximately 5 feet deep (Tr. 22, 23) and that he had been cautioned not to approach the edge of the excavation because pieces of dirt had fallen [*14] in from the edges (Tr. 29).
David W. Brown, the fireman pictured in Exhibits C-1 and C-6 testified that he responded to a call to the scene of the cave-in at about 11 a.m. on May 16th and that he observed the deceased in the bottom of the trench with his head just visible (Tr. 32). While he was down in the hole a second cave-in occurred and he was thrown out of the hole by fellow-workers (Tr. 32). He also testified that his height is 5 feet 8 inches and that he is the individual pictured in Exhibit C-1 wearing a coat with markings EFO and the number 12 on the back (Tr. 33). He stated that in Exhibit C-1 he is standing in the trench but on a level higher than the one on which the victim is resting (Tr. 33, 34, 43-44). He estimated that the depth of the trench was "six feet or better" and the width 5-1/2 to 6 feet (Tr. 33, 35, 55). He also observed movement in the soil about 1-1/2 feet below the top of the trench and a trickle of water coming through the soil most of it from the wall of the trench (Tr. 47-8). The movement of the soil started with a crack with small particles breaking away and then larger chunks (Tr. 34-5).
Brown stated also that while he was present [*15] a back hoe machine was used to widen the trench in order to permit the removal of the body (Tr. 36, 52). The photograph Exhibit C-5 shows that top of the catch basin after it was widened. The witness described the soil in the trench as gravel, small rocks, wet, sandy, clay (Tr. 37) and very loose (Tr. 40).
On cross-examination Brown stated that he did not observe the first cave-in but that he believed the second cave-in occurred on the side opposite to the cave-in which had buried the deceased (Tr. 38); that the other person shown in Exhibit C-1 is about 5 feet 7 inches in height. While he was in the hole Brown helped to clear some of the soil away from the body as shown by the markings on Exh. C-1, removing about one foot of soil from around the lower portion of the victim's body (Tr. 43, 64). Brown stated also that the elongated portion of the trench was shallower than the catch-basin; and that the sides of the catch-basin were not sloped to an angle of repose (Tr. 61-62).
Brown's testimony also indicated that a drainpipe passed through the catch-basin; that a portion of the victim's body was about one foot below the center of the drain pipe (Tr. 65-66) and that it was his [*16] guess that the said pipe was located about 5 feet below the surface of the ground (Tr. 70).
Police Officer Philip Pierce arrived at the scene of the accident shortly after 11 A.M. and observed the deceased at the bottom with only one side of his head visible. He noted that the side of the trench nearest the body was "straight up and down" -- the opposite side appeared partially rounded (Tr. 80).
Officer Pierce also observed that the soil in the trench was of a "gravel type" and that it was wet. He was present when the second cave-in occurred and saw the side of the trench nearest the body of the deceased fall in and bury him again completely (Tr. 81).
Pierce estimated that the depth of the trench from the leg of the deceased as shown in Exh. C-3 to the top of the trench was 7 feet (Tr. 82-83). That day or the next Officer Pierce filed an accident report (Tr. 84). His description of the trench in question in that report coincides in all material aspects with his testimony (Exh. C-7).
Morgan S. Childs, Jr., the compliance officer, arrived at the scene at about 3:30 p.m. the afternoon of the accident (Tr. 93). At that time the excavation for the catch-basin, where [*17] the fatality occurred, had been filled in (Tr. 96). Childs took three measurements of the elongated portion of the trench and found that the depth varied from 61 to 66 inches (Tr. 98-99, Exh. C-5). The width of the trench at the bottom varied from 24 to 26 inches and the width at the surface level varied from 32 to 36 inches (Tr. 99). Childs also testified that the soil he observed in the trench consisted of gravel, sand and a clay mixture (Tr. 100). He did not observe anyone working in the area or in the trench at the time his inspection was made (Tr. 95, 118).
Mr. Childs also testified that he arrived at the proposed penalty by considering the gravity of the offense, the probability of an accident, the exposure of personnel, and the good faith of the employer (Exh. C-8). He indicated that he had allowed a 20 deduction from the maximum penalty for "good faith" because the Respondent had cooperated in giving him information (Tr. 108) although Respondent did not in fact have a formal training program in safety (Tr. 109).
It was stipulated that John W. Fiatrone, Mr. Childs' supervisor would testify in support of Mr. Childs' method of assessing the proposed penalty (Tr. 128). [*18]
Respondent's two principal witnesses were Howard E. Briggs, a back-hoe operator under contract to the Respondent, who was on the scene and bigging the trench at the time of the accident, and Robert C. Libbey a licensed engineer and qualified soil expert who in the past has also been employed by Respondent (Tr. 211) and who was hired by Respondent to test the soil in the area after the fatality occurred (Tr. 238).
Briggs testified that he was operating a back-hoe in the elongated portion of the trench at the time of the accident about 25-30 feet from the deceased (Tr. 141, 183) that he considered the soil in the trench to be hard packed (Tr. 152, 176, 180, 191); that just prior to the cave-in, the deceased was standing in the catch-basin and hammering on a sledge-hammer trying to tighten down the head of the hammer (Tr. 162, 163). He also testified that the deceased was 6 feet or 6 feet 1 inches tall (Tr. 205).
At one point in his testimony Briggs suggested that the deceased was hammering on the head of the sledge hammer while standing on the drain pipe and resting the butt end of the sledge on the pipe (Tr. 162, 163, 165). However, in answer to the court's question the [*19] witness admitted that he did not know whether the deceased was standing on the drain pipe, that he never saw the pipe (Tr. 195), and that the deceased was standing on the dirt "as far as I could tell" (Tr. 195). Again on re-direct Briggs stated that he could not swear that the deceased was standing on the drain pipe and that he did not know the size of the pipe (Tr. 200).
This witness also stated that the width of the catch basin prior to the first cave-in was between 5 and 6 feet and about 5 feet deep (Tr. 195, 196) sloping down to a bottom width of about 2 feet, an angle of repose sufficient in his opinion to prevent movement of the earth from the sides to the bottom (Tr. 195, 196). He also stated on direct that no part of the elongated portion of the trench was as deep as the major excavation in the area of the drainpipe (Tr. 158). This witness also signed a statement after the accident which was mailed to the Department of Labor by his attorney (Tr. 175, Exhibit C-9).
Robert C. Libbey the engineer and soil expert who testified for Respondent stated that on May 24th, eight days after the fatality occurred, and after the original excavations had been covered over, he dug a [*20] test hole downhill from the drain pipe in question and about 6 feet from the site of the original trench (Tr. 213-214). He did not make a laboratory analysis of the soils found in the test hole but reached his conclusions as to the nature of the soil by visual observation and feel (Tr. 234-5).
It was this witness' conclusion, based upon his examination of the areas close to where the trench had been dug, that the soil in the trench was clay (Tr. 210), hard packed (Tr. 216) and more stable than "compacted angular gravel" referred to in Table P-1 annexed to 29 CFR 1926.652(b)(Tr. 218-219). The witness also stated that except for solid rock the material he found in his test hole was more stable than all other materials mentioned in Table P-1 which require a 90 degrees angle of repose (Tr. 218-220).
In response to a hypothetical question put to the witness by Respondent's counsel Libby replied that the cave-in which killed the deceased on May 16th had been caused, not by the instability of the soil, but by a "sonic shock" resulting from the hammering on the drainpipe done by the deceased while standing in the excavation (Tr. 220-222).
In determining the weight and credence [*21] to be accorded the testimony of a witness where, as here, material facts are in dispute, some of the factors to be considered are the relationship, if any, between the witness and the Respondent, the witness' opportunity for visual observation, the demeanor of the witness, and the resonableness of his testimony. Here, in addition to the oral testimony of several live witnesses, we have the additional aid provided by six photographs taken within minutes after the occurrence of the event which prompted the investigation by the Secretary of Labor.
Three witnesses produced by the Secretary -- two police officers and a fireman -- who arrived at the scene within 30 minutes after the fatal cave-in testified that the catch-basin dug by Respondent was between 6 and 7 feet deep (Tr. 9, 14-15, 33, 35, 55, 82-83); that the uncollapsed side of the catch basin was vertical (Tr. 61-62, 80); and that the soil appeared crumbly, wet, and unstable (Tr. 15, 37, 40, 47-48, 80). Indeed, a second cave-in occurred shortly after the fatal cave-in covering the body of the decreased a second time (Tr. 29, 32, 81).
To contradict the testimony of these witnesses we have the testimony of the back-hoe operator, [*22] a contractor still employed by the Respondent, who stated that the depth of the elongated section of the trench varied as it sloped toward the catch basin (Tr. 159) but conceded that the catch-basin at the end of the elongated portion of the trench was deeper than any part of the elongated section. n2
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n2 The compliance officer, the only witness to take measurements, testified that hours later, after the catch-basin had been filled in, the elongated portion of the trench was 61 to 66 inches in depth (Tr. 98-99, Exh. C-5).
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We have in addition the testimony fo Respondent's soil expert, also at times employed by Respondent, who did not observe the trench where the accident occurred, but who after digging a test hole offered the opinion that the soil in the general area of the trench was hard-packed clay (Tr. 210, 216) n3 almost as stable as solid rock -- and more stable than compacted angular gravel (Tr. 218).
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n3 A note which accompanies table P-1 in 29 CFR 1910.652 provides that clay, silt, loam, or non-porous soils require shoring and bracing.
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The photos taken by Police Sergeant Turcotte (Exh. C-1 through C-6) and particularly Exhibits C-1 and C-6 which show two fireman, both about 5' 8" tall, standing on an intermediate level in the catch-basin provide a graphic illustration of both the dimensions of the catch-basin immediately after the cave-in and the character of the soil in the excavation.
I have no difficulty in determining that the preponderance of the credible evidence points to the conclusion that the trench where the cave-in occurred was more than 5 feet in depth; that the trench was dug in unstable soil consisting of a mixture of gravel, sand, and clay; that there was ground water in the adjacent area which was observed by witnesses to be coming through the sides of the catch-basin; and that the angle of repose of the sides of this excavation, if any, was not adequate to protect employees working inside the excavation in view of the characteristics of the soil.
They theory advanced by Respondent's soil expert that the fatal cave-in was caused by "sonic shock" resulting when the deceased allegedly hammered on the drain pipe, and [*24] not because of the instability of the soil, is highly speculative. This theory is especially tenuous since there is no hard evidence to support the implication that the deceased was hammering on the drain pipe. Briggs testified that he could not swear that the deceased was standing on the drain pipe with the handle of the sledge resting on the pipe (Tr. 195, 200) and could not hear any hammer blows (Tr. 200). I consider this theory to be entitled to little, if any, weight in determining the cause of the cave-in.
With respect to the penalty proposed by the Secretary, the compliance officer testified that Respondent had no formal training program and that the deceased was in charge of overall safety (Tr. 109). He also testified that a 20% allowance was granted Respondent for "good faith" because Respondent's officers were cooperative in supplying information during his investigation (Tr. 108).
In my opinion cooperation in supplying information after the event, when standing alone, is not sufficient to support a finding of "good faith," cf: Secretary v. Hidden Valley Corporation of Virginia Docket No. 11, Decision of the Commission dated February 8, 1972. Moreover, [*25] from the circumstances which led to his death, it would appear that the deceased was not entirely qualified to serve in the capacity of "safety man." This reduction in penalty should be disallowed.
FINDINGS OF FACT
1. The Marino Development Corporation, the Respondent herein, is a Massachusetts Corporation with its principal place of business at 1 Davis Square, Somerville, Massachusetts.
2. Respondent in the course of its business activities regularly orders, receives and handles products which move across state lines.
3. At all material times the personnel and the equipment used by Respondent were under the control of the Respondent.
4. The latest gross annual income from Respondent's business was $75,000.00. The average daily number of employees during the current year is four.
5. On May 16, 1972 Respondent was engaged in the construction of a trench or excavation in the vicinity of Black Brook Road, South Easton, Massachusetts.
6. The trench in question was in excess of 5 feet in depth and the soil in which the trench was dug was soft and unstable.
7. The sides of the said trench were not shored, sheeted, braced, or otherwise supported by means of sufficient [*26] strength to protect employees working in the trench, nor were the sides of said trench sloped to an angle of repose sufficient to insure against a cave-in as required by 29 CFR 1926.652(b) as adopted by 29 CFR 1910.12 as amended.
8. On May 16, 1972 one side of said trench collapsed killing Respondent's employee who was working therein. Shortly thereafter the other side of the trench also collapsed.
9. On June 1st 1972, after an inspection of the site of the trench on May 16, 1972, a compliance officer employed by the Complainant issued a Citation for a Serious Violation of the Act. The Citation required immediate abatement of the violation. A penalty of $500.00 was proposed.
10. The calculations made by Complainant in arriving at the proposed penalty of $500.00 included a 20% allowance for "good faith" on the part of the Respondent. Such an allowance was improper and must be disallowed.
CONCLUSIONS OF LAW
1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Occupational Safety and Health Act of 1970 (29 USC § 651 et seq. ) and was subject to the Safety and Health Regulations [*27] issued by the U.S. Secretary of Labor pursuant to that Act.
2. On May 16, 1972 Respondent was in violation of the Regulations issued by the Secretary of Labor by failing to comply with the provisions of 29 CFR 1926.652(b) as adopted by 29 CFR 1910.12 as amended.
3. Respondent's violation was a "Serious Violation" as defined by Section 17(k) of the Act.
4. The penalty of $500.00 proposed by the Complaint for the said violation is improper under Section 17(j) of the Act. The Respondent is not entitled to a reduction in penalty on the basis of "good faith."
ORDER
Pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 and 29 CFR 2200.66 it is ORDERED:
1. That the Citation for Serious Violation issued on June 1, 1972 by Complainant against the Respondent be, and it hereby is, AFFIRMED.
2. That the penalty of $500.00 proposed by Complainant be, and the same hereby is, VACATED.
3. That a penalty of $700.00 be and the same hereby is, assessed against this Respondent.