BROADVIEW CONSTRUCTION CO.

OSHRC Docket No. 124

Occupational Safety and Health Review Commission

January 10, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On March 15, 1972, Judge John S. Patton issued his recommended decision and order in the instant case affirming the Secretary's citation for serious violation but reducing the amount of the proposed penalty. Thereafter, on March 27, I directed that the report of the Judge be reviewed by the Commission in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the rulings of the Judge and finds no prejudicial error therein. The Commission has also reviewed the entire record in the case and has considered the briefs, arguments and exceptions of the parties. The Commission adopts the Judge's recommenced decision and order only to the extent that it is consistent with the following.

On September 28, 1971, respondent was cited for a serious violation of section 5(a)(1) of the Act -- the so-called general duty clase. The citation, as amended by the complaint, alleges that on or about August 30, 1971, respondent failed to furnish his employees employment and a place of employment free from recognized hazards causing or likely to cause death or serious physical harm. Specifically, it is alleged that six employees were lifted on a forklift to a height of approximately 26 feet without the use of a safety platform firmly secured to the lifting forks and without means available to them to shut off the power. A penalty in the amount of $700 was proposed by the Secretary.

A timely notice of contest was filed by the respondent and the matter proceeded to hearing before Judge Patton who affirmed the citation but reduced the penalty from $700, as proposed by the Secretary, to $500 because of what he concluded were mitigating circumstances.

We agree with the Judge's decision on the citation. The issues on review are whether the reduction of the Secretary's proposed penalty was appropriate under all the circumstances of the case, and, if not, what penalty is appropriate.

A review of the record reveals that a forklift, operated by the respondent's foreman, was being used to hoist 25 sheets of 31 foot length metal roofing material and 6 employees to a roof some 24 feet above the ground. Two of the employees testified that all six employees were either sitting, squatting or kneeling while several of them held on to the uprights and to each other in order to maintain their balance. No means were available to them to shut off the power. When the men and materials reached a height of approximately 26 feet the foreman operator attempted to move the forklift forward. At this point, the forklift toppled over and the men and materials were thrown to the ground, with consequent severe injuries to each of the employees. At the time, ladders were available to the employees and a "personnel basket" or platform for use on the forklift was on the site.

That the respondent recognized the hazard involved in this operation is evidenced by its contention that the employees had been instructed in the past not to ride the lift without the "personnel basket", and that to do so was against "company policy". However, several employees testified that they had never received any instructions not to ride the forklift.

Respondent admits the facts of the accident; that it is ". . . an error to ride that equipment."; and that its ". . . employees plain flat goofed." Respondent's president stated: "We admit that the only thing that would have prevented that accident was myself or Mr. Butcher [respondent's supervisor] being there or [the foreman] saying 'No, I think you are making a mistake.'" These admissions convince us that respondent had no effective rule or policy against employees riding loaded forklifts. n1

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n1 We note that the Secretary's Safety and Health Regulations for Construction, 29 C.F.R. 1926 (as adopted from 29 C.F.R. 1518), at 1926.552(a), require that the towers of personnel hoists be anchored to the structure and cars be permanently enclosed on all sides and the top. Under these regulations, forklifts are not an acceptable means for hoisting personnel in construction work, even with a personnel platform.

It is not alleged, nor do we find, that respondent violated these standards which were not in effect at the time of the accident. The standards do, however, constitute guidelines as to the procedure a prudent and experienced contractor would consider safe for hoisting personnel to a roof.

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In view of these circumstances, we find no justification for mitigation of the proposed penalty.

In addition to finding no justification for mitigation of the Secretary's proposed penalty of $700, the Commission feels compelled in this case to consider the appropriateness of the Secretary's proposed penalty.

Section 17(j) of the Act (29 U.S.C.A. 666(i)) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. [Emphasis supplied.]

The record shows that the Secretary in arriving at the proposed penalty of $700, considered three of the four factors set forth above. The proposed penalty was reached by taking the maximum unadjusted penalty of $1000 and reducing it in accordance with weighted credit allowed for the several factors considered.

We do not find that these factors are necessarily to be accorded equal weight in a given case, nor do we find that a particular factor must be given the same weight under different factual situations. Secretary of Labor v. Nacirema Operating Company, Secretary of Labor v. Hidden Valley Corporation of Virginia, Secretary of Labor v. J.E. Chilton Millwork & Lumber Co. Inc.,

The Commission finds no reason to disagree with the Secretary's use of guidelines to assist his agents in determining the amount of the penalty proposed herein, however, we are of the opinion that the gravity of the violation in this case must be considered as the controlling factor in reaching an appropriate penalty. The Commission may, in other cases, consider the lack of good faith, the history of previous violations, or any combination of the statutory factors as being so controlling as to require the assessment of a different penalty under section 17(b) of the Act, regardless of the allowances given by the Secretary in his proposed penalty.

In the instant case, the record fails to reveal what, if any, consideration was given by the Secretary to the gravity of the violation. In determining the gravity of a serious violation, several elements must be considered: (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. n2

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n2 The Commission is aware that within the context of a given case other elements may enter into determination of the gravity of a violation. The elements set forth herein are not intended to be exclusive.

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The severity of the likely injury must be measured by experience and expertise. Because of the facts herein, namely that the forklift was being used to perform two functions at the same time -- hoisting material plus personnel to a height of 26 feet before traveling forward -- we conclude that the degree of injury reasonably likely to result from falling from this height and under these circumstances ranges from severe to death, either as a result of the fall or from being hit by, or pinned under, the load itself, thereby establishing the violation as serious.

On this occasion, seven employees were exposed to the hazard, including respondent's foreman who was operating the forklift. While the record does not disclose whether the foreman was hurt, he was nevertheless exposed to the hazard.

The record also shows that basic precautions were ignored, even as to the failure to secure the roofing material to the forklift.

The final element of gravity to be considered is the degree of probability of injury occurring to employees riding a load of material on a forklift. Respondent admits that this is a recognized hazard. Respondent's own expert witness, the forklift manufacturer's representative, testified that, ". . . its just reasonable to assume" that personnel should not be lifted without a personnel platform. The obvious conclusion to be drawn from this and similar testimony is that to do otherwise results in substantial probability that injury will occur. (See footnote 1, supra. )

Weighing all of these factors, we conclude that in this case the gravity of the violation must be, and is, the controlling factor. In view of the extremity of such gravity we find that the Secretary's proposed penalty is low. The Commission, therefore, finds itself compelled, because of the gravity of the violation herein, to impose upon the respondent the maximum penalty. Accordingly, the Commission assesses a penalty of $1,000.

IT IS HEREBY ORDERED, that the Secretary's citation for serious violation is affirmed and a penalty of $1,000 is assessed against the respondent.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This decision is based on the premise that the Judge's decision, holding respondent in violation of Section 5(a)(1) of the Act, was entirely proper and that the sole issue on review is the appropriateness of the penalty assessment. I cannot agree. In my opinion, this record is insufficient to establish a violation of the Act.

Section 10(c) of the Act provides that after respondent has been afforded an opportunity for a hearing, "The Commission shall thereafter issue an order based on findings of fact . . ." (emphasis added). n3

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n3 An additional, but similar requirement is set forth in Section 557(c) of the Administrative Procedure Act, which states:

All decisions . . . shall include a statement of . . . findings and conclusions . . . on all the material issues of fact, law, or discretion presented on the record . . . (emphasis added).

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Respondent is charged with having violated Section 5(a)(1) of the Act in that he failed to furnish employment "free from recognized hazards . . . causing death or serious physical harm to his employees."

To comply with the requirement that the Commission base its decision on findings of fact, there are two such findings that are essential before a violation of Section 5(a)(1) can be established:

(1) The conditions cited were hazards likely to cause death or serious physical harm to respondent's employees.

(2) The conditions were recognized as such.

Since these criteria are so separate and distinct from each other, they cannot be combined into one finding of fact. They find their support in different types of evidence. For example: The use of BqCO[3] in a factory may cause serious harm to employees who are allergic to "q". A medical doctor could give such testimony. But do employers (or people) generally recognize that such use will produce such results? This is a different matter. It involves the state of knowledge. It is not a matter for expert testimony.

This case is deficient because there is no finding as to the state of knowledge regarding the conditions constituting the hazard. Judge Patton's decision is based upon findings of fact which establish only the existence of a situation which resulted in serious physical harm to employees. Nowhere does the Judge make a finding as to whether or not the same was recognized as a hazard. The Commission's decision does not cure this defect and, indeed, the evidence produced by complainant appears to have overlooked this element.

Epagogic law is not the basis for the position taken here. It is both sensible and reasonable that alleged violations of this section of the Act must require proof of the existence of both a hazardous condition and general knowledge that such condition is a hazard. An analysis of decisions of this Commission would show a number of cases where one member regarded certain conditions to be hazardous and another did not. Differences of opinion are normal and exist the world over. Our legal system, however, cannot be founded on individual opinions. Laws must be objective, not subjective. Judge A might think it a hazard for employees to work before 6:00 a.m. and Judge B might think it hazardous to require employees to work above the third floor of a building. People differ on what is or is not a hazard. It was for precisely this reason that this section of the Act requires proof of general recognition of a condition as a hazard before a violation can be established.

Admittedly, the facts of this case are tragic and arouse the conscience of those in a position to penalize respondent for the dangerous actions of its agents. Nevertheless, our duty is to apply the law to the facts which were adduced at the hearing. I, therefore, cannot join in a decision which ignores the mandate of Section 10(c) by reaching a conclusion unsupported by relevant findings of fact.

[The Judge's decision referred to herein follows]

PATTON, JUDGE, OSAHRC: This case is before the undersigned Hearing Examiner on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, hereinafter referred to as plaintiff, against the Broadview Seed Company, doing business as Broadview Construction Company, respondent, alleging that respondent has violated Section 5(a)(1) of the Occupational Safety and Health Act of 1970. It is alleged that a serious violation occurred in that on or about August 30, 1971, employees were lifted by means of a forklift without the use of a safety platform firmly secured to the forklift and that no means were available to the men being lifted whereby they could shut off the power from the truck to the forks of the machine. It was alleged that the forklift turned over and that six men who were on the forklift fell and were seriously injured.

Citation was issued by the Department of Labor alleging said violation and a penalty in the amount of $700.00 was proposed. The respondent filed a Notice of Contest to said Citation whereupon the aforesaid complaint was filed by the plaintiff. Hearing was held before John S. Patton, the undersigned Hearing Examiner in Lubbock, Texas, on February 15, 1972. Mr. James E. White and Mr. Scott H. Strickler represented the plaintiff at said hearing and Mr. W. M. Wright, President of respondent, and Mr. John Butcher, Superintendent of respondent appeared as representatives for the respondent. There was no motion to intervene by the employees or by any representative of the employees. All parties were accorded the right to present evidence and orally argue the case. The parties were notified that they had the prerogative to file briefs, but the representatives of both parties stated upon the record that they did not desire to file briefs.

LAW AND ISSUES OF THE CASE

Section 5(a)(1) of the Occupational Safety and Health Act of 1970 provides as follows:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

The standards promulgated by the Secretary of Labor under said Act did not become effective until September of 1971, and the alleged violation occurred on August 30, 1971. Said standards cannot be given an ex post facto effect, and the plaintiff does not contend that said standards have been violated in this case.

Plaintiff does contend, however, that a serious hazard which probably would result in death or serious injury was created and that respondent was therefore in violation of Section 5(a)(1) of the Act. Said section was in full force and effect at the time of the accident.

The issues for determination are whether the respondent caused the employees to work in an unsafe manner by said employees being elevated on a forklift while a load of materials was on the forklift and while the forklift did not have the proper safety devices to prevent said employees from falling from the forklift. It is further an issue in this case as to whether the respondent had a device on the forklift permitting the control of the forklift by the persons thereon, and if such device did not exist, whether the failure to have same on the forklift was dangerous to the lives and personal safety of the employees. Another issue in this case is whether the condition existing on August 30, 1971, created a substantial possibility of causing serious injury to the employees. In the event it is found that a violation has occurred, the issue arises as to whether a penalty should be assessed against the respondent, and if so, in what amount.

EVIDENCE IN THE CASE

A number of the facts in the case are not in dispute. It is admitted that on August 30, 1971, six employees of the respondent rode said forklift while 25 sheets of metal roofing material were on the forklift. It is admitted that at the time they rode said forklift, there was no safety device on same to prevent it from turning over and no guard rail to prevent the employees from falling from said forklift. It is further conceded that there was no device on the forklift to regulate the forklift although company executives testified that there is such a device on the forklift at this time. It is admitted that on said date six employees fell from the forklift while it was raised to a height of about 26 feet approximately two feet above the roof of the building, and all of said employees suffered substantial injuries.

The testimony of Mr. Butcher, superintendent of the respondent, is to the effect that the employees were instructed not to ride the forklift while material was being lifted on it, and not to ride the forklift except when a safety platform was affixed to the forklift. It was further testified by Mr. Butcher that safe and adequate ladders were provided by means of which the employees could have reached the desired level without the necessity of the employees riding the forklift.

At the time of said accident, Mr. Billy Eugene Cline, a foreman in the employ of the respondent, was supervising said employees. There is substantial conflict of evidence as to whether Mr. Cline directed said employees to ride the forklift on said occasion. Mr. Cline testified that he did not instruct the employees to ride the forklift, but that he did operate the forklift as they rode to the desired height. Mr. Billy Fairly, one of the employees who fell from the forklift testified that as far as he could remember, Mr. Cline did not order him to get on the forklift. On the other hand, Mr. Ray Wilson, who also fell from the forklift, stated that on said occasion, Mr., Cline said, "You all get on and I'll take you up." Mr. Richard Roemisch testified that Mr. Cline instructed the employees to get on the forklift. Mr. Willie Scott also testified that he got on the forklift at the instruction of Mr. Cline. It was testified that Mr. Cline as foreman had the authority to direct the employees in their work.

Said employees testified the following injuries occurred: Mr. Wilson stated that he fractured two vertebrae, that his left heel was broken, his right foot and right leg were fractured.

Mr. Fairly stated he suffered a dislocated left elbow, that his right elbow was splintered, and he suffered a fractured right foot.

Mr. Roemisch testified that he suffered a compressed fracture of the sixth lumbar vertebra.

Mr. Scott testified that he suffered a fractured pelvis and fractured hip.

All employees who fell suffered injuries.

Mr. Butcher testified that he had given specific instructions that the forklift was not to be riden under such circumstances. Several employees substantiated Mr. Butcher in this testimony, one employee stating that on a prior occasion, he was reprimanded by Mr. Butcher in very strong language because he engaged in such conduct. Mr. Butcher testified that he was very much aware of the fact that such action would be unsafe, that the strips of material could cause the forklift to become unbalanced and cause it to topple. He stated that an employee should not ride a forklift without the proper platform, and under no circumstances should an employee ride a forklift at the same time material was being lifted.

Mr. Herbert Kurtz, Safety Engineer and Compliance Officer with the United States Department of Labor, testified that he has a degree in agricultural engineering and has considerable study in civil engineering, and that he has twelve years of experience with the U.S. Army Corps of Engineers in and around construction and hydraulic engineering. Mr. Kurtz testified, as did Mr. Butcher, that to ride a forklift while materials were being lifted was strictly contraindicated insofar as safety is concerned.

Mr. Jerry Cuthbirt testified that he is employed by the company, that he would classify the tools and equipment including the forklift as very good, that the forklift was one of the best he had ever worked with, that the company had never failed to supply him with adequate ladders or other equipment for the safe conduct of his work. He stated that he had used the forklift with the personnel carrier and that he did not, in any way, feel the forklift was unsafe if the personnel carrier was used. Mr. George Rhoden also testified that he works for the respondent and that the equipment is the best. He stated that it was common knowledge that the men should not use the forklift without the personnel platform. He stated that having worked for other companies, he was of the opinion the respondent "had safety on its mind." He testified that he had never been requested to do anything which he personally felt was unsafe. Mr. John Tull testified that he is employed by Lifto, Incorporated, which company sold the forklift to the respondent. He testified that the forklift is the best and the safest that could be secured. He further testified that people should not be lifted on the forklift without a platform. Mr. Butcher testified that he always emphasized safety and that he had emphasized to the employees that they should not ride the forklift without a personnel carrier. He stated the forklift was the first one that had turned over.

Mr. Howard Stroud also testified as to the emphasis on safety by the company, although he stated that there was no formalized safety program.

EVALUATION OF EVIDENCE

It is undisputed that six of the respondent's employees rode a forklift on August 30, 1971, under unsafe circumstances, and as a result of such action, said employees suffered very serious injuries. It is conceded by all parties that it is unsafe to ride a forklift without a personnel carrier, and further, that it is unsafe to ride a forklift while materials are being lifted thereon. The respondent testified, however, that it was not the desires of management that its employees should engage in such activities, but testified that the employees were instructed that they should not engage in such activities. One of the employees stated that Mr. Butcher had on a previous occasion reprimanded him in language that he did not care to repeat in a courtroom. The Hearing Lxaminer credits this testimony of the respondent and is of the opinion that top management of the respondent did not intend for its employees to ride the forklift without a personnel platform or to ride it while material was being lifted. The Hearing Examiner is of the further opinion that adequate means were available whereby the employees could have reached the desired elevation without the necessity of riding the forklift.

If the accident had been caused entirely by the violation of orders by the employees, and had management at any level had no participation in this action, the Hearing Examiner would be of the opinion that the respondent could not be held responsible for the action of its employees or for the unfortunate results flowing therefrom. The matter is complicated, however, by the fact that Mr. Billy Cline, a foreman in the employ of the respondent, was responsible in large measure for the action of said employees. The Hearing Examiner is of the opinion that Mr. Cline was a supervisor authorized to speak for management. Apparently, Mr. Cline did not hire or fire employees, but he was designated by the company to direct the employees in the work in which they were engaged, including the method whereby said work was performed. While Mr. Cline denies that he instructed the employees to ride the forklift, several of said employees creditably testified that he did issue said instructions. The Hearing Examiner is of the opinion that such instructions were given by Mr. Cline and so finds. Furthermore, even if such instructions had not been given, it is noted that Mr. Cline operated the forklift and lifted the employees in the air thereby making himself a party to said action. The Hearing Examiner is of the opinion that Mr. Cline's responsibility exists, in view of his participation regardless of whether said instructions were given. The respondent is not responsible for an employee disobeying instructions of management, but the respondent is responsible for the actions and instructions of its supervisors. Mr. Cline, at the time of said accident, was, as a supervisor of the company, acting as management and his actions are the responsibility of management. The Hearing Examiner is therefore of the opinion that the actions of the employees in this case, which were unsafe, are as a result of instructions of management and management cannot be absolved from responsibility for said actions.

In the case of James D. Hodgson, Secretary of Labor, v. Nacirema Operating Company, Inc., guard attached as required by the standards. When the forklift was used without said guard, the company, notwithstanding said instructions, was found in violation of the act because of "neglect to exercise proper supervision." In the case at bar, the position of the plaintiff is even stronger because, although top management issued instructions which would have prevented said violation had they been followed, the supervisor in direct charge of the operation was a party to said violation and instructed the employees to ride the forklift.

Section 5(a)(1) of the act provides that a violation occurs if the employees are not furnished a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to the employees.

It is necessary before a violation may be found to have occurred to find such a hazard existed and, unlike an alleged violation of specific standards, to find that the hazard was "recognized." The action of riding said forklift is admitted by almost all witnesses for respondent, as well as plaintiff, to be a hazardous action which, not only was likely to result in serious injury, but which did result in serious injury. Management of the respondent testified it knew such a ride was very dangerous and the respondent's foreman knew the action was taking place, and was primarily responsible for it taking place. Therefore, the hazard was "recognized" as required by said section of the statute.

As herein above set forth, the Hearing Examiner is of the opinion that the actions of the employees and said foreman in this case were contrary to the wishes of top management of the company. The Hearing Examiner is of the opinion that this constitutes some mitigation, and should be considered in determining the proper penalty in this case.

Mr. Robert B. Sammons, Area Director of the Lubbock Area Office of the plaintiff, testified that in setting the amount of the penalty the plaintiff started at the $1,000.00 maximum and gave reductions based on various factors. He stated that no reduction was given for good faith because in their opinion, respondent did not have an effective safety program. Plaintiff allowed ten per cent reduction because of the small size of the respondent and twenty per cent reduction due to the fact that respondent had no prior history of violations.

The Review Commission in the case of Hodgson v. Nacirema Operating Company, Inc., supra, refused to agree to the rigid formula of the Department of Labor in setting a penalty, but held that each case must be viewed separately to evaluate all the facts of the case. In said case the Commission said "no matter how desirable uniform treatment of violations may be, the achievement of a just result in each case is the standard by which our deliberations must be guided."

While the Hearing Examiner does not feel that the respondent can be excused from the results of the unfortunate actions of its supervisor, the Hearing Examiner is of the opinion that there is some mitigation as the record indicates that the actions of employees ran contra to the wishes and instructions of top management. Under these circumstances, while the Hearing Examiner is of the opinion that the company's actions do constitute a serious violation as said term is defined in the citation, the penalty should be reduced from $700.00 to $500.00.

FINDINGS OF FACT

1. Respondent is a corporation engaged in the business of construction, and its activities affect Interstate Commerce.

2. On August 30, 1971, at the workplace of respondent in Lubbock, Texas, six employees of respondent suffered serious injury in a fall from a 26-foot height from a forklift of respondent.

3. At the time of said accident, said employees were riding said forklift without a personnel platform or adequate guard rail and 25 sheets of metal roofing material were being lifted at the same time.

4. Said employees fell as a result of said forklift toppling over.

5. At the time of said accident, there were no means available to the men being lifted whereby they could shut off the power from the truck to the forks of the machine.

6. The superintendent of respondent before the date of said accident had given instructions that employees should not ride said forklift without a personnel platform attached and should not ride said forklift while materials were being lifted on it.

7. Mr. Billy Cline at the time of said accident was the foreman of respondent with supervisory authority to direct said employees in the performance of their work.

8. At the time of said accident, the said Billy Cline instructed the said employees of respondent to ride said forklift and the said Mr. Cline was himself operating said forklift.

9. The riding of said forklift under said circumstances created a danger of death or serious injury to said employees, and they were injured because of said danger.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting Interstate Commerce, and is covered by the provisions of the Occupational Safety and Health Act.

2. The Occupational Safety and Health Review Commission has jurisdiction of this case.

3. Mr. Billy Cline was on August 30, 1971, at the time of said accident, a supervisor of respondent and respondent was bound by and responsible for his actions.

4. The action of Mr. Cline in instructing said employees to ride said forklift without a personnel platform firmly attached, and with materials on same, and his action in operating said forklift with said employees on same without a personnel platform attached and with materials on same created a condition likely to cause death or serious physical harm to employees, and therefore constituted a violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970.

5. Said violation constituted a serious violation as said term is defined in said Act.

6. The conduct of top management of respondent in having a policy that said forklift should not be ridden without a personnel platform and should not be ridden when materials were being lifted on it and the issuance of instructions to that effect constitute some mitigation of the actions of respondent.

7. A penalty of $500.00 should be assessed against respondent.

ORDER

It is therefore ordered by the Hearing Examiner that:

1. The plaintiff's citation charging a violation of Section 5(a)(4) of the Occupational Safety and Health Act of 1970 be and the same hereby is affirmed.

2. The respondent be and hereby is ordered to pay a penalty in the amount of $500.00.