OIL SALES & PROCESSING CORPORATION
OSHRC Docket No. 12139
Occupational Safety and Health Review Commission
April 20, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Peter M. Frank, for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an unreviewed [*2] Judge's decision. Leone Constr, Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
Francis V. LaRuffa, Regional Solicitor and Jack R. Fisher, for Secretary of Labor
Peter M. Frank, for Respondent
James P. O'Connell, Judge.
STATEMENT OF THE CASE
This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act") contesting two citations issued by complainant against respondent under the authority vested in the Secretary of Labor by Section 9(a) of the Act. The citations allege that as a result of an inspection of a place of employment located at One Ingham Avenue, Bayonne, [*3] New Jersey, on December 31, 1974, the respondent 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 thereof.
The citations, one for serious violations containing two items, the other for nonserious violations having six contested items, and a notification of proposed penalty were issued on January 9, 1975. Respondent on January 29, 1975 contested the above and the penalties proposed thereon totaling $1,665.00.
The items, standards, and the proposed penalties contested are as follows:
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Citation no. 1 (serious) |
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|
|
|
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Item No. |
Standard Involved |
Proposed Penalty |
|
1. |
29 CFR 1915.42(a)(1) |
$ 900 |
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2. |
29 CFR 1915.42(a)(3) |
|
|
|
|
|
|
Citation no. 1 (nonserious) |
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|
|
|
|
1. |
29 CFR 1915.84(c)(1) |
$ 225 |
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2. |
29 CFR 1915.84(c)(4) |
225 |
|
4. |
29 CFR 1910.252(a)(2)(iv)(c) |
45 |
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5. |
29 CFR 1910.252(a)(2)(ii)(b) |
45 |
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10. |
29 CFR 1910.25(d)(1)(x) |
45 |
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19. |
29 CFR 1910.22(a)(1) |
180 |
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|
Total |
$1,665 |
At the commencement of the hearing certain motions were made by the respective parties. Complainant moved to amend the penalty proposed for item 19 above from $180 [*4] to $80. Respondent having no objection, the motion was granted and the penalty proposed for item 19 was amended to $80 (Tr. 8). Respondent's motion was to withdraw its contest to items 4, 5, 10 and 19 of the citation for nonserious violations and to the penalties proposed therefore and as amended. The Secretary having no objection, the motion was granted (Tr. 11). As a consequence of such motions, only the first two items of each citation, and their proposed penalties, remained in issue (Tr. 11).
An informal pre-hearing conference was held on April 10, 1975 at which the parties attended. Formal hearings were held at New York City on May 22 and May 30, 1975. No affected employee or authorized employee representative appeared or participated in the proceeding (Tr. 5-6). Complainant's direct case consisted of the testimony of Thomas P. Marrinan, an OSHA compliance officer, and four (4) photographic exhibits (C-1 through C-4). His case on rebuttal was additional testimony from chief engineer, John Wagner, an employee of respondent. Respondent's case consisted of the testimony of the aforementioned, John Wagner and of Noble Darrow, port engineer. The parties were afforded but [*5] waived the opportunity of submitting post-hearing briefs and memorandum.
STIPULATIONS
1. Respondent's name is Oil Sales & Processing Corporation. It is incorporated within the State of New Jersey and its principal office is located at One Ingham Avenue, Bayonne, New Jersey.
2. Respondent is an employer, and was and is engaged in a business affecting commerce within the meaning of section 3(3) and 3(5) of the Act.
3. Respondent is a contractor for ship repair and tank cleaning. Its size is small as compared to that of a similar business in the same industry and in the same geographic area. The average daily number of employees is 25.
4. No employees were injured at the time of the alleged violations.
JURISDICTION AND ISSUES
Jurisdiction of this action and of the respondent is admitted. Abatement is not an issue before the Judge. The issues for determination are: (1) whether respondent violated the four contested standards as alleged by complainant; (2) are the alleged serious violations of a serious nature as contemplated by section 17(k) of the Act; and (3) if respondent committed the alleged violations what penalties are appropriate therefore. In conjunction [*6] with the above respondent raises the key issue as to whether an employee-employer relationship existed between the welder Hernandez and the respondent company (Tr. 187, 208).
OPINION AND FINDINGS OF FACT
There is no dispute to the facts that on New Year's Eve, December 31, 1974, commencing at about 9:00 a.m., Thomas Marrinan, an OSHA compliance officer, conducted an inspection at respondent's places of employment located at One Ingham Avenue, Bayonne, New Jersey, and at the adjacent Howard Street pier where a motorship, the M/S "Tallsman Island", [hereinafter referred to as the "Tallsman"], was tied starboard side to the dock (Tr. 13, 35). The evidence is also uncontested that when Marrinan first arrived at the workplace he contacted Nathan Berman, respondent's general manager, who designated John Wagner as respondent's representative to accompany Marrinan on the walk-around inspection (Tr. 14, 121). Wagner was employed by respondent as chief engineer of the boiler room on the Ingham Avenue facilities located on what has also been called respondent's Second Street pier or "cleaning pier" (Tr. 15, 121, 125, 126). Wagner, also identified as respondent's yard foreman, was directed [*7] by Berman to accompany the compliance officer on the walk-around inspection (Tr. 14, 121). Wagner did so on the "cleaning pier" only.
I find that by virtue of said designation, coupled with his position as yard foreman, that Wagner was the employer's representative during this inspection (Tr. 17). In Secretary v. Global Importers, Inc., 1 OSAHRC 890-891 (1972), it has been held:
"The statements made by respondent's officials as related by the compliance officer are admissions and do not fall in the category of hearsay. See, Grayson V. Williams, 256 F. 2d 61 (10th Cir. 1958); Martin V. Savage-Truck Lines, Inc., 121 F. Supp. 417 (D.D.C. 1954)."
After the inspection of the cleaning pier facility was completed Marrinan went thereafter to the Howard Street pier where respondent had three employees working aboard the "Tallsman" (Tr. 15). However, during the inspection at the cleaning pier and prior to going to the Howard Street pier, Wagner had introduced to Marrinan and identified a welder, Raphael Hermandez, as one of respondent's employees working on the ship (Tr. 18-20, 122). Marrinan accompanied Hermandez from the cleaning pier to the vessel on the Howard Street pier [*8] (Tr. 21). The distance between piers was approximately 300 yards (Tr. 32). At that time it was approximately 11:30 a.m. (Tr. 20). Wagner remained at the cleaning pier area.
Before discussing the individual contested items, it is necessary to resolve the threshold issue raised by respondent as to whether an employee-employer relationship existed between Hermandez and respondent. From the above stated findings and from the record as a whole, I am persuaded, and do find, that Hermandez was in fact an employee of the respondent. The preponderance of the probative evidence is that Wagner, respondent's yard foreman, identified Hermandez as one of respondent's employees employed aboard the Tallsman. Marrinan has testified to that fact. I accept such testimony as the true fact and reject Wagner's denial that he ever made such a statement (Tr. 181-182). I also note that respondent's witness Darrow testified that on the inspection date he knew Hermandez, that he supervised his work aboard the Tallsman and that on that date Hermandez was employed by respondent (Tr. 139-140, 156). I find that not only was Hermandez such an employee but that the compliance officer had every right to [*9] rely upon the statements made by respondent's employee representative. In the concurring opinion of the Review Commission in Secretary v. Metro Mechanical, Inc., 19 OSAHRC (Docket No. 3518, July 7, 1975), it is stated:
"The compliance officer testified that respondent's job foreman identified the person on the scaffold as an employee of respondent. Whether viewed as within the admission exception to the hearsay rule or as nonhearsay, this testimony constitutes credible evidence which must be accorded probative weight" (Citing three authorities on the law of evidence).
It has also been held by an unamious Review Commission that an employment relationship may be reasonably inferred to exist between a respondent and the employee in question on the facts of the case, i.e., shipyard was a single employer worksite and respondent exercised control over the affected employee. Secretary v. Murphy Pacific Marine Salvage Company, 15 OSAHRC 1 (1975). I am persuaded that the reliable and probative evidence reflects that respondent through its supervisors exercised control over Hermandez. It is also noted that at the time Hermandez was identified to Marrinan as one [*10] of respondent's employees, that he was upon respondent's premises at the cleaning pier obtaining working materials identified as welding electrodes (Tr. 20).
In making the above findings, I specifically reject respondent's argument that Wagner had no authority over the workplace at the Howard Street pier. Such argument is irrelevant to the question of the admission made by Wagner as respondent's representative and as a supervisor. The compliance officer had every right to rely and did rely upon the identification and admission made by Wagner that Hermandez was one of respondent's employees working aboard the Tallsman. It must be noted that there is no evidence of record to support any finding that Hermandez was an independent contractor on the inspection date.
Having resolved the threshold issue in favor of complainant, I now proceed to the contested violations. I shall consider both items of each citation together in my discussion and included therein shall be findings of fact as applicable to the individual items of each citation.
Concerning first the citation for serious violations, the allegations in the two items of the citation and the standards allegedly violated are [*11] described as follows:
Item no. 1 (citation no. 1 - serious)
Standard: 29 CFR 1915.42(a)(1) - proposed penalty $900.00 n1
Alleged violation: M/S Tallsman Island. 14' portable straight wooden ladder which provided employee with the only means of access to the vessel from the Howard Pier facility. Side rails were broken and split, ladder was open on both sides to the pier and/or river below.
The standard provides:
§ 1915.42 Ladders.
(a) General requirements. (1) The use of ladders with broken or missing rungs or steps, broken or split side rails, or other faulty or defective construction is prohibited. When ladders with such defects are discovered, they shall be immediately withdrawn from service. Inspection of metal ladders shall include checking for corrosion of interiors of open end, hollow rungs.
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n1 A single penalty was proposed for both item 1 and 2.
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Item no. 2 (citation no. 1 - serious)
Standard: 29 CFR 1915.42(a)(3)
Alleged violation: Welder ascending and decending the ladder carrying [*12] a bucket containing welding rods. Ladder was set in a horizontal position and sagged with employees weight. Side rails of the ladder extended approximately 12" above the upper landing surface of the weather deck. Top rung was not recessed into the side rail and was loose, side rail broken and the ladder was not properly lashed and displaced approximately 18 inches.
The standard states:
§ 1915.42 Ladders.
(a) General requirements.
(3) Portable ladders shall be lashed, blocked or otherwise secured to prevent their being displaced. The side rails of ladders used for access to any level shall extend not less than 36 inches above that level. When this is not practical, grab rails which will provide a secure grip for an employee moving to or from the point of access shall be installed.
The evidence in support of the violations of the above cited standards consists of the testimony of Marrinan and three photographs of the ladder in question which he took during his inspection. The photographs are exhibits C-1, C-2 and C-3. Exhibit C-1 depicts the employee Hermandez, in an upright or walking position, ascending a straight wooden ladder leading to the weather deck of the Tallsman. [*13] The employee was carrying a canister of electrodes in his right hand and a tool in his left hand. Exhibit C-2 is a photograph of the top portion of the ladder taken from the weather deck of the vessel looking downwards towards the pier. It clearly shows that the right hand or near side of the ladder has (1) a broken side rail; (2) a top rung not recessed into a (missing) side rail; and (3) does not extend over the landing surface to the same extent as the left side rail. Respondent's witness Darrow, the supervisor of respondent's employees aboard the ship, admits that there is no wood (rail) surrounding the top rung (Tr. 165). He further admits that he knew about these conditions, that the ladder was the only means of access to the ship (Tr. 161), and that he used the ladder himself four or five times daily (Tr. 152, 159-160). The ladder was in use for at least two days, contrary to the mandate of the standard requiring its withdrawal immediately from service. The standard cited in item 1 prohibits the use of ladders with broken or split side rails or other faulty or defective construction. I find that the physical condition of the ladder depicted on Exhibits C-1 and C-2 is [*14] so defective and faulty so as to be in violation of the standard cited in item 1.
The standard cited in item 2 requires the side rails of a ladder used for access to any level of a vessel to extend "not less than 36 inches above that level." I find that the right side of the ladder in violation of the standard extended only 12 inches above the landing surface and that the left side extended only 24 inches above the deck level of the ship (Exh. C-2, Tr. 30).
The same ladder is shown on Exhibit C-3 except that it is a view of the lower portion, or the portion which extends from the pier upward to a point midway to the ship's side. Such picture was taken from the dock looking towards the ladder. This exhibit reveals that the left lower portion of the ladder is not lashed or blocked and has been repaired by affixing a wooden strip alongside the left side rail extending from the foot of the ladder upward to about the sixth rung (Tr. 136-137, 144). There is also shown on the photograph where a manila line is wrapped around the eighth rung from the bottom which rung is also shown on Exhibits C-1 and C-2. I accept the testimony of the compliance officer that this manila line was the [*15] only line used to secure the ladder at the deck level and that such line was slack, admittedly not taut (Tr. 164-165), and was inadequate to prevent the ladder from being displaced. Marrinan testified that when he stepped on the ladder it shifted three inches and that from the deck level he tested the ladder further with his foot and it shifted 18 inches (Tr. 28). I conclude and find that the single manila line affixed to the aforementioned eighth rung of the ladder did not constitute a proper and sufficient lashing so as to secure the ladder and prevent its being displaced. There is present in the record a preponderance of the credible evidence supporting a violation of the standard cited in item no. 2 above.
Having found that both violations of the cited standards existed, the question as to whether respondent had knowledge of such violations is academic. Darrow was the supervisor of respondent's employees aboard the Tallsman. They were "my men" - they performed their work under his direction - and Darrow's boss was Nathan Berman, the aforementioned general manager of the respondent's company (Tr. 70, 136-137, 156-157). Darrow knew about the condition of the ladder since [*16] it was he who repaired it. He was the one who positioned it and has verified that he himself used the ladder four to five times a day for at least two days. Such actions and knowledge on the part of this supervisor is imputed knowledge of the existence of the dangerous conditions on the part of the respondent's company. Secretary v. Ocean Electric Company, Docket No. 5811 (November 20, 1975).
There can be little dispute also that respondent's employees were exposed to the hazardous conditions which existed on the ladder in question. Hernandez was observed using the ladder by the compliance officer. Darrow testified that he used the ladder for the two day period that it was in position. The ladder was the only means of access to the Tallsman from the pier. On December 31, 1974, four employees, including Hernandez, were working aboard the vessel (Tr. 139). Consequently, respondent's entire work force was exposed to the violative conditions approximately four or five times a day over a two day period. I find the above to be uncontroverted facts evidencing a high employee exposure and likelihood of an accident occurring so as to conclude that the gravity of the violations [*17] was high.
I also find that the ladder in question at the time of the inspection was at a 60 degree angle to the vessel (Tr. 104, 152). The ladder had an overall length of 14 feet and the distance from the weather deck of the ship in a direct line to the concrete pier apron was approximately 8 feet. From the pier apron to the water below was approximately another 5 feet (Tr. 26). It is undisputed that the vessel's starboard hull was not immediately flush with the pier apron - there being a space of approximately 2 feet between the outer edge of the pier and the side of the ship (Tr. 26). Had an employee fallen from the top portion of the ladder nearest to the weather deck he would fall either 8 feet onto the concrete pier or 13 feet into the cold water in the area between the ship and the pier (Tr. 148). The hazards involved in such a fall consisted, at the least, of exposure of the employee to cold water and, at the most serious, to a crushing of the worker between the ship and the pier and/or drowning. I am convinced that in the event an employee fell from the ladder to the pier apron and/or from the pier into the water, or directly from the ladder to the water, that there [*18] was a substantial probability that death or serious physical harm could result from such a fall. I therefore find that the violations of the two cited standards are serious violations. California Stevedore and Ballast Co. v. O.S.A.H.R.C., 517 F. 2d 986 (9th Cir. 1975).
Considering the statutory criteria of Section 17(j) of the Act, I am convinced and do determine that a total penalty of $900.00 for the serious violation of both standards in the citation is appropriate and should be assessed. I find that the gravity of the violation is high, that little consideration can be afforded to respondent for good faith in view of the fact that its own supervisor created the conditions and exposed all of its employees to such conditions, and that it had a positive history of prior violation of the Act. n2
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n2 Prior to the inspection herein, ten items of nonserious violations were issued on July 9, 1973, were contested and then withdrawn, and became final by order of the Review Commission, Docket no. 3850, on November 16, 1973.
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Concerning the citation for nonserious violations, the allegations in the two contested items of the citation and the standards allegedly violated are described as follows:
Citation no. 1 (nonserious)
Item no. 1:
Standard: 29 CFR 1915.84(c)(1) - proposed penalty: $225.00
Alleged violation: M/S Tallsman Island-Howard Pier. At least one 30 inch coast guard approved life ring with an attached 90' line was not maintained on the pier in the vicinity of the vessel being worked where an employee was exposed to water hazards.
The standard reads:
§ 1915.84 Lifesaving equipment.
(c) Life rings and ladders. (1) At least three 30 inch Coast Guard approved life rings with lines attached shall be kept in easily visible and readily accessible places aboard each vessel afloat on which work is being performed. Life rings shall be located, one forward, one aft, and one on the gangway, except on vessels under 200 feet in length, in which case one at the gangway will be sufficient.
Item no. 2:
Standard: 29 CFR 1915.84(c)(4) - proposed penalty: $225.00
Alleged violation: M/S Tallsman Island-Howard Pier. A rescue ladder either portable or fixed and of sufficient [*20] (length) which could reach to the surface of the water from the top of the pier apron was not provided in the vicinity of the vessel being worked.
The standard provides:
§ 1915.84 Lifesaving equipment.
(c) Life rings and ladders.
(4) In the vicinity of each vessel afloat in which work is being performed there shall be at least one portable or permanent ladder of sufficient length to assist employees to reach safety in the event that they fall into the water.
Complainant's evidence in support of the above alleged violations consists solely of the testimony of the compliance officer. This witness, in substance, stated that, during his inspection in the vicinity of the vessel, while on the pier and while aboard the ship he did not observe any life saving equipment such as a life ring or a ladder which could be used to assist any employee who might fall into the water (Tr. 33). He stated positively that there were no life rings aboard the vessel (Tr. 33). His inspection however, was limited to the area of the weather or main deck and he did not go into the ship's superstructure (Tr. 34). The record is clear that Marrinan did not ascend to nor make an inspection of the bridge [*21] deck of the vessel depicted on Exhibit C-4 (designated by a red arrow). Marrinan further testified that he did not observe any rescue ladder on the pier nor on the starboard side of the vessel on the weather deck (Tr. 35). It should be noted here that the Tallsman was identified as being approximately 150 feet in length (Tr. 39, 56). There being no other evidence of record to the contrary, such fact when considered in conjunction with the standard cited in Item No. 1, requires that only one life ring be located on the vessel.
In rebuttal to the above testimony, respondent's witness Darrow, testified that he personally placed and saw life rings and rescue ladders on the vessel. He stated that a life ring and rescue ladder, in accordance with Coast Guard regulations, were located on the starboard of the ship on the bridge deck under the life boat (Tr. 146-147). The ladder was identified as a Jacob's ladder which could be unraveled by a line. This line could be pulled from the weather deck. The life ring and ladder were located 10 feet south or aft of the access ladder and 6 to 7 feet above the weather deck (Tr. 170). The steel Jacob's ladder was identified as hanging over the [*22] bottom of the bridge deck and was of sufficient length to reach the water (Tr. 171). Thus, when unraveled it would be in the water 10 feet away from the area of the access ladder. It was emphasized by Darrow that he had such personal knowledge of the life rings and rescue ladders because they were necessary to be aboard the vessel for a Coast Guard examination (Tr. 171). Respondent also contends that the straight ladder discussed heretofore would also satisfy the requirement of the standard.
A review of the above testimony of the two witnesses establishes to my satisfaction that greater credibility on this issue must be given to the testimony of Darrow. He was responsible for the work being done on the vessel, he had to comply with Coast Guard regulations, and he had personal knowledge of the location and types of life saving equipment that were on the ship at the time of the OSHA inspection. Since Marrinan did not visit the bridge deck there is no credible testimony of record to refute the persuasive evidence presented by respondent on this issue. I therefore find that there was on the ship at least one life ring and one permanent ladder of sufficient length to reach the water [*23] in the event an employee should fall from the access ladder. I also find that the location of equipment on the bridge deck, at a distance 10 feet aft and 6 feet above the area of the access ladder, is such presence so as to be in substantial compliance with the standard requiring that the rescue equipment be readily accessible and in the vicinity of the vessel.
In Secretary v. Blackie's Boat Yard, Inc., 1 OSAHRC 82, (1972), which case also dealt with the standard cited as 29 CFR 1915.84(c)(4), it was held that the meaning of the word "vicinity" was a relative term and does not express a definite distance; its meaning depends upon the contents in which it is used. In that case a ladder within 30 feet of the vessel was held to be within its "vicinity". Also, in Secretary v. Gulf Stevedore Corporation, 20 OSAHRC (Docket No. 12534-October 10, 1975), it was held that the word "vicinity" signifies nearness to an object and that a life ring on the vessel would be in the vicinity of the vessel. I adopt such interpretations and find them applicable herein.
Accordingly, I find that the complainant has failed to sustain his burden of proof by a preponderance of the [*24] credible evidence that, in fact, on the date of the inspection herein that respondent committed the above described violations. The two items of the citation and the proposed penalties assessed for each item should be vacated.
CONCLUSIONS OF LAW
1. Respondent, at all times pertinent to this proceeding, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.
2. Respondent was subject to the requirements of the Act, including Section 5(a)(2), and the occupational safety and health standard promulgated thereunder. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein.
3. Respondent on December 31, 1974, was in violation of the standards codified as 29 CFR 1915.42(a)(1) and 29 CFR 1915.42(a)(3) as set forth in items no. 1 and no. 2 of citation no. 1 for serious violations, and such items and the assessment of a penalty of $900.00 for such violations should be affirmed.
4. Respondent on December 31, 1974, was not in violation of the standards codified as 29 CFR § 1915.84(c)(1) and 29 CFR § 1915.84(c)(4) as alleged in items no. 1 and no. 2 of citation no. 1 for nonserious [*25] violations, and such items and the $225.00 penalties proposed individually therefor should be vacated.
5. On December 31, 1974, respondent violated the occupational safety and health standards set forth in items numbered 4 ($45.00), 5 ($45.00), 10 ($45.00) and 19 ($80.00) of citation no. 1 for nonserious violations and such items and the individual penalties, as amended, set forth in parenthesis next to each of the above items should be affirmed.
ORDER
Based on the foregoing Opinion and Findings of Fact, Conclusions of Law, and upon the entire record of this proceeding, it is ORDERED that:
1. Items no. 1 and no. 2 of citation no. 1 herein charging serious violations of 29 CFR § § 1915.42(a)(1) and 1915.42(a)(3) and the single $900.00 penalty proposed for such violations are hereby affirmed.
2. Item no. 1 and no. 2 of citation no. 1 charging nonserious violations of 29 CFR § § 1915.84(c)(1) and 1915.84(c)(4) and the $225.00 penalty proposed for each item are hereby vacated.
3. Complainant's motion to amend and reduce the $180.00 penalty proposed for item no. 19 of citation no. 1 for nonserious violations to the sum of $80.00 is granted. The said penalty is hereby amended. [*26]
4. Respondent's motion to withdraw its notice of contest to items no. 4 ($45.00), 5 ($45.00), 10 ($45.00) and 19 ($80.00) of citation no. 1 for nonserious violations and to the individual proposed penalties assessed or as amended is granted. Such items and the individual proposed penalties assessed and as amended, in the total sum of $215.00, are affirmed.
Issued at: New York, New York
File Date: February 24, 1976
JAMES P. O'CONNELL, JUDGE, OSAHRC