DIC-UNDERHILL, A JOINT VENTURE

OSHRC Docket No. 13019

Occupational Safety and Health Review Commission

April 8, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

William J. Pastore, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On November 25, 1975, Administrative Law Judge Seymour Fier issued a decision holding that respondent, Dic-Underhill, a joint venture, violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"] by failing to comply with 29 CFR 1926.500(d)(1). Judge Fier also found that the violation was "willful" within the meaning of section 17(a) of the Act, and he assessed a penalty of $10,000. Pursuant to section 12(j) of the Act, on December 23, 1975, I granted respondent's petition for discretionary review of the Judge's decision. The primary issue raised by the petition was stated to be "[w]hether the Administrative Law Judge erred in concluding that respondent willfully violated section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1926.500(d)(1)?" On December 24, 1975, Chairman Barnako also directed review of the Judge's decision and requested submissions on the following [*2] questions:

1. Whether the trial Judge committed reversible error in concluding that Respondent committed a willful violation of 29 C.F.R. 1926.500(d)(1) in the particular circumstances of this case?

2. If so, was the issue of whether Respondent committed a repeat violation of 29 C.F.R. 1926.500(d)(1) tried by the express or implied consent of the parties?

3. Assuming arguendo an affirmative answer to question number 2, does the evidence of record establish a repeat violation of the subject standard under the circumstances of this case?

4. Whether the trial Judge's assessment of a $10,000 penalty is inappropriately high under the circumstances of this case?

We affirm the Judge's decision. n1

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n1 On December 5, 1975, Commissioner Moran issued a direction for review to ensure that the Judge's decision would be published in its entirety by private publishing houses. We vacate the direction. Francisco Tower Service, BNA 3 OSHC 1952, CCH 1975-76 OSHD para. 20,147 (No. 4845, 1976).

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On March 13, 1975, respondent [*3] maintained a workplace, and employed about 80 persons at the World Trade Center construction site in New York City, where it was engaged in constructing concrete forms and pouring concrete. At two assessible locations on this site, open-sided floors more than six feet above the adjacent ground levels lacked guardrails. This was contrary to 29 CFR 1926.500(d)(1). n2 Judge Fier found that respondent violated the Act in the manner alleged by the citation. Respondent has offered no reason or argument indicating that the Judge's finding of noncompliance was in error. n3 Our independent examination of the record confirms the existence of violative conditions to which Dic-Underhill employees either had access or to which they were actually exposed. We therefore affirm Judge Fier's finding that Dic-Underhill violated section 5(a)(2) of the Act.

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n2 These violative conditions existed even though Dic-Underhill knew that an OSHA compliance officer had appeared on the site the previous day. On March 12, 1975, a compliance officer appeared at the site and conducted an opening conference with respondent's project superintendent, Mr. Donald DePaola. Before the inspection party could inspect respondent's primary work areas, rain began to fall. It was agreed that the inspection would resume the next day.

n3 Also, with one unimportant exception (see note 4, infra), Dic-Underhill has not offered any argument in support of its objection that the Judge erred in his finding of "willfulness" and his assessment of a $10,000 penalty. On review, respondent has not filed a brief or other submission specifying the nature of Judge Fier's alleged errors or citing any portion of the record that would support contrary findings. Respondent has filed only a short, uninformative petition for discretionary review. This lack of precision in the presentation and preservation of objections to a decision of an Administrative Law Judge is no longer permitted. On January 3, 1977, Commission Rule 91a (29 CFR 2200.91a) became effective. 41 Fed. Reg. 53015 (December 3, 1976). Paragraph (c) of the Rule requires that each factual issue for which review of a Judge's decision is sought "be supported by citations to the record . . . and by citations to statutes, regulations, or principle authorities relied upon." We consider Dic-Underhill's virtual abandonment of its petition to be significant, but we do not, and need not, rest our disposition on this point.

[*4]

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Judge Fier also found that these violations of section 5(a)(2) were "willful" within the meaning of section 17(a) of the Act. He noted that respondent has a long history of similar violations of the Act; knows of the requirements of the law, specifically 1926.500(d)(1); and that respondent was indifferent to and disregarded the requirements of the standard. The evidence on this matter clearly preponderates in favor of the Judge's finding. n4

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n4 Dic-Underhill objects that Judge Fier improperly relied upon Judge Chodes' decision in another case involving allegations that respondent willfully failed to comply with 1926.500(d)(1). In that case, Judge Chodes' affirmed a citation for a willful violation, but before his decision became a final order, it was directed for review under section 12(j) of the Act. Thus, Judge Fier incorrectly stated that Judge Chodes' decision represented a final Commission order. We think that the error was at best harmless. The issuance of the citation in that case placed respondent on notice, if previous citations had not, of the requirements of the law; whether it eventually became a final order of the Commission would not except in unusual circumstances, alter this fact. Also, the Commission has recently affirmed Judge Chodes' decision. Dic-Underhill, A Joint Venture, No. 9561 (     , 1977).

[*5]

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At the hearing, it was shown that there are outstanding 11 final orders of this Commission against respondent for failures to comply with this same standard, that the Second Circuit had affirmed a Review Commission decision finding that respondent had failed to comply with this standard, and that a fatality had resulted from one of these violations. In addition, respondent's supervisory employees at the World Trade Center site knew of the requirements of the standard. Respondent, through these same supervisory employees also knew that guardrails were lacking in the places cited. Indeed, respondent, through its lather foremen, knew that a crew of its lathers were actually exposed to the dangers of a fall. Under these circumstances, there can be little or no doubt that respondent "willfully" violated section 5(a)(2) of the Act because respondent knew of the requirements of the law, but displayed plain indifference to them. n5 Intercounty Construction Co. v. O.S.H.R.C., 522 F.2d 777 (4th Cir. 1975), cert. denied, 96 S.Ct. 854 (1976). n6

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n5 In his brief on review, the Secretary contends that he pleaded a repeated violation only in the alternative. He states that if the Commission finds a "willful" violation, it need not reach the "repeated" question. We therefore do not reach the question of whether respondent also "repeatedly" violated the Act.

n6 Before the Judge, respondent relied heavily on the strict test of willfulness stated by the Third Circuit in Frank Irey, Jr., Inc. v. O.S.H.R.C., 519 F.2d 1200 (3d Cir. 1975), cert. granted on another point, 96 S.Ct. 1458 (1976). We have respectfully declined, however, to follow the view of the Third Circuit, and have relied instead on the views of other Courts of Appeals. See Kent Nowlin Construction, Inc., Nos. 9483, etc. (February 15, 1977).

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We now consider respondent's objection to the Judge's assessment of $10,000 penalty, the maximum permissible under section 17(a). Section 17(j) requires that the Commission give due consideration to the appropriateness of a penalty with respect to the size of the business of the [*7] employer, the gravity of the violation, the employer's good faith, and his history of previous violations. These considerations point to affirmance of Judge Fier's assessment.

With respect to the size of Dic-Underhill's business, Dic-Underhill is one of the largest construction firms in the New York City metropolitan area. It has simultaneously undertaken scores of construction projects. Its large size was also conceded by respondent before Judge Fier.

With respect to gravity, considering the number of employees affected, the locations of the violations, their duration, the absence of any credible alternative precautions against injury, the high probability that one of the employees, particularly the lathers, could have fallen off the edge, and the probably severe consequences of such a fall (Tacoma Boatbuilding Co., Inc., 4 OSAHRC 607, 609 & n.6, 1 OSHC 1309, 1311 & n.6, CCH 1973-74 OSHD para. 16,538 (No. 6, 1973)), we find the gravity to be high.

We further find that the element of good faith was not present here. Respondent's evident lack of concern for the safety of its employees and its reluctance to undertake a serious effort to comply with patently applicable safety [*8] standards are persuasive here, even in view of the fact that respondent immediately abated the violations. See Dreher Pickle Company, 2 OSAHRC 497, BNA 1 OSHC 1132, CCH 1971-73 OSHD para. 15,470 (No. 48, 1973).

Respondent's history of previous violations is long. In addition to the final orders adduced at the hearing, we note in connection with respondent's history of previous violations, the following Commission decisions affirming citations for guardrail violations issued to respondent before the instant citation: n7 Dic-Underhill, A Joint Venture, BNA 4 OSHC 1051, CCH 1975-76 OSHD para. 20,563 (No. 3257, 1976); Dic-Underhill, A Joint Venture, BNA 4 OSHC 1489, CCH 1976-77 OSHD para. 20,918 (No. 3042, 1976) (noting previous violations); Dic-Underhill, A Joint Venture, BNA 4 OSHC 1146, CCH 1975-76 OSHD para. 20,631 (No. 2516, 1976); Dic-Underhill, A Joint Venture, BNA 4 OSHC 1766, CCH 1976-77 OSHD para. 21,232 (No. 3344, 1976); Dic-Underhill, A Joint Venture, 20 OSAHRC 534, BNA 3 OSHC 1621, CCH 1975-76 OSHD para. 20,067 (No. 3725, 1975); Dic-Underhill, A Joint Venture, 7 OSAHRC 134, BNA 1 OSHC 1577, CCH 1973-74 OSHD para. 17,384 (No. 2081, 1974), [*9] aff'd 513 F.2d 1032 (2d Cir. 1975). Underhill Construction Corporation, one of the Dic-Underhill joint venturers, also has been cited for guardrail violations. Underhill Construction Corp., 15 OSAHRC 366, BNA 2 OSHC 1556, CCH 1974-75 OSHD para. 19,276 (No. 1307, 1975), aff'd 526 F.2d 53 (2d Cir. 1975); Underhill Construction Corp., CCH 1974-75 OSHD para. 18,449 (Nos. 4247 etc., 1974) (settlement agreement for 17 cases), petitions for review dismissed, No. 74-1662, 2d Cir., September 20, 1974).

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n7 On the Commission's duty to consider such a history in connection with a penalty designed to secure compliance with its orders and the Act, see, in addition to the statutory factor contained in section 17(j), J.P. Stevens & Co., Inc. v. N.L.R.B., 441 F.2d 514, 519 (5th Cir., 1971) and Textile Workers Union, AFL-CIO v. N.L.R.B., 475 F.2d 973, 976 (D.C. Cir. 1973).

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Accordingly, it is ORDERED that the Judge's decision is AFFIRMED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation [*10] charging respondent with violating 29 U.S.C. 654(a)(2) for allegedly failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.500(d)(1) should be vacated because complainant has failed to establish that respondent's employees were actually exposed to the alleged violated condition. As I explained at some length in my dissenting opinion in Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976, a mere showing of employee "access" to a hazardous condition is not sufficient to establish a violation under the Act. A showing of actual exposure is necessary.

In this case, the citation was issued for respondent's alleged failure to install guardrails on open-sided floors at two different locations. At the first area, variously referred to as either the northeast area or trailer area, the sole evidence regarding employee exposure was the testimony of complainant's safety inspector that several of respondent's employees were approximately 10 feet from the edge of the unguarded floor. At the second area, referred to as both the south side and southeast area, the safety inspector testified that he saw five employees of respondent [*11] who were, in his estimation, somewhere between three and six feet from the edge of the floor.

This lone testimony unsupported by any specific measurements, by photographs, or by corroborating testimony is inadequate to establish that respondent's employees were actually exposed to the hazards of the unguarded floor. By the safety inspector's own testimony, the employees closest to the edge may have been as much as six feet away therefrom. Without more substantial evidence, the Commission cannot find that they were any closer, for the Commission cannot decide cases on mere speculation and conjecture. Secretary v. Fort Worth Enterprises, Inc., 10 OSAHRC 280, 284 (1974).

Additionally, the majority's vacation of the direction for review previously filed in this case is illegal and void. Secretary v. Francisco Tower Service, OSAHRC Docket No. 4845, February 6, 1976 (dissenting opinion). Accordingly, their failure to consider the Judge's findings as to the remaining citation for noncompliance with 29 C.F.R. 1926.150(c)(1)(iv) precludes the enforcement of that citation as a final order of the Commission. Fieldcrest Mills, Inc. v. OSAHRC, 545 F.2d 1384 (4th Cir. 1976). [*12] See also Secretary v. Mobile Component Distributors, Inc., OSAHRC Docket No. 12648, July 29, 1976 (dissenting opinion); Secretary v. Francisco Tower Service, supra.

In view of the majority's reliance in part on Judge Fier's decision, his decision is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Louis D. DeBernardo, for complainant

William J. Pastore, for respondent

Fier, Judge.

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), wherein respondent contests the citations and penalties of a nonserious violation and also a willful violation. The citations issued were based upon an inspection conducted March 13, 1975 by compliance officer, Peter Richardson. The citations and proposed penalties were issued on March 26, 1975 pursuant to sections 9(a) and 10(a) of the Act.

Pursuant to section 10(c) of the Act, 29 U.S.C. 659(c), respondent, through a letter dated April 14, 1975, noted its timely contest of the citations and proposed penalties. [*13] The respondent is alleged to have violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof (29 U.S.C. 655).

The citation for the alleged nonserious violation sets forth the following:

Abatement

Standard

Description of Alleged Violation

Date

29 CFR 1926.150

Fire extinguishers rated not less

Immediately on

(c)(1)(iv)

than 2A or 55 gallon drums of

receipt of this

water with 2 fire pails were not

citation

provided on each floor adjacent

to each stairway and ladderway.

Location: Employees exposed 1st

floor. n1

A penalty of $235.00 was proposed.

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n1 Standard as promulgated:

"One or more fire extinguishers, rated not less than 2A, shall be provided on each floor. In multistory buildings, at least one fire extinguisher shall be located adjacent to stairway.

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The citation for the alleged willful violation sets forth the following:

Abatement

Standard

Description of Alleged Violation

Date

29 CFR 1926.500

Open sided floors were not guarded

Immediately on

(d)(1)

by a standard railing or the

receipt of this

equivalent as specified in para-

citation

graph (f)(i) of this section.

Location: 1) Plaza Area, North

east corner, next to Dick-Underhill

trailer complex. No guarding exposed

to lower level. 2) South east founda-

tion wall exposed to backfill

excavation, Plaza level. n2

[*14]

A penalty of $10,000 was proposed.

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n2 Standard as promulgated:

"(d) Guarding of open-sided floors, platforms, and runways. (1) Every open sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."

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ISSUES

1. The respondent questions whether 29 CFR 1926.150(c)(1)(iv) was violated since the worksite was located in an open area?

2. The respondent denies that 29 CFR 1926.500(d)(1) was violated on March 13, 1975. Further, that if a violation is established, then the prior record is insufficient to formulate the basis for a willful violation in this case?

3. If the respondent is shown [*15] to have violated any of the standards as alleged, what penalty, if any, is appropriate?

STATEMENT OF THE EVIDENCE

The respondent admitted items 9 through 13 as true in the plaintiff's request for admissions. Items 9 through 13 establish the use by respondent, of various materials and equipment manufactured outside of New York State (Tr. 5). *

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* Reference key: Tr. refers to pages of minutes of hearing.

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On March 13, 1975 the compliance officer inspected the respondent's jobsite at the World Trade Center in New York City (Tr. 19). The testimony shows that approximately 80 of respondent's employees were working at the jobsite (Tr. 21). During the walk around inspection, the compliance officer observed that there were no fire extinguishers or other fire fighting equipment adjacent to the stairway at the first floor location (Tr. 22-24). In addition, open sided floors were not guarded at the Plaza area, north east corner, next to the Dic-Underhill trailer complex and, at the south east foundation wall exposed [*16] to backfill excavation (Tr. 74-77). As a result of the inspection, two citations as noted above were issued. The compliance officer upon consultation with his supervisor, determined that the prior history of the respondent warranted the issuance of a willful violation for the more serious violation. The facts are essentially as alleged. The employees of the respondent were observed within a reasonable proximity to the alleged violation in both instances (Tr.45, 67). The testimony of the compliance officer that no fire-extinguishers were adjacent to the stairs was uncontroverted by any of the witnesses (Tr. 58). The existence of open sided floors without perimeter guarding was testified to by the compliance officer and supported by the evidence (Tr. 73-77; Exh; C-1, C-2). Five employees of the respondent were observed working at the edge of the south east foundation wall. The wall did not have perimeter guarding and the workers were exposed to a fall of approximately 20 feet (Tr. 81). The testimony shows that the edge of the wall had been poured several months prior to the date of inspection.

OPINION

We are concerned here with one nonserious and one willful violation. [*17] The evidence has shown that the respondent was working on the first floor at the time of the inspection. The standard allegedly violated is concerned with assuring the safety of workers on a construction site. The testimony has shown that the structural level synonymously called the first floor or plaza level (Tr. 24). The facts are clear that there were no fire extinguishers or a fire barrel from the observations of the compliance officer at the time of inspection on the plaza level (Tr. 26). This was confirmed by the testimony of respondent's assistant superintendent (Tr. 63). The hazard to the approximately 20 workers on the plaza level was primarily from the floor below where fuel and other materials were stored. Since the plaza level is not confined, and is open, it is evident that the degree of danger to the workers is not as great as on the lower level (Tr. 27-28). The danger of fire on the plaza level however, was present because lumber was stored there (Tr. 29). In addition, the testimony has shown that a fire did occur at the jobsite earlier in the month destroying one of the trailers (Tr. 120-121). It is thus apparent that while the respondent asserts the exposure [*18] to danger was minimal, the necessity for compliance with the standard is recognized. The testimony and other evidence have failed to show any basis for not complying with the standard. Under the circumstances, the respondent violated 29 CFR 1926.150(c)(i)(iv). The proposed penalty of $235.00 is assessed after considering all of the statutory factors of section 17(j) of the Act.

The respondent was also charged with a willful violation of the Act. Specifically, the standard allegedly violated is 29 CFR 1926.500(d)(i). The record shows that the same respondent has been charged with violating this standard on numerous occasions in the past (Tr. 94). Respondent contends that while the standard violated was the same in many instances the circumstances were not (Tr. 106). He asserts that the types of construction were not similar and as such the violations must also be viewed in a different perspective (Tr. 107). Respondent also explains that in the instant case the period of exposure was for only a brief duration (Brief pp. 7). The evidence as to the existence of the violation is not contested and in effect the respondent has presented a plea for mitigating circumstances in an [*19] effort to reduce the proposed penalty (Brief pp. 14).

In searching the record, the evidence shows that the respondent has been working on this project for some period of time and that it has much experience in this type of work. The record shows that there are in excess of 10 final orders for prior violations of the Act by this respondent. The record includes a violation of 29 CFR 1926.500(d)(1) which involved the death of a worker (Tr. 141). While the respondent asserts that it is one of the largest construction companies in this area, this cannot form the basis for excusing the long history of violations. Only recently a decision of the Review Commission affirmed a finding against the same respondent for a willful violation of the same standard. -- OSAHRC -- Docket No. 9561 (1975). The courts have also spoken on the "willful violation" interpretation. The Circuit Court quoting the Supreme Court stated:

"[W]e are persuaded that it [willfully] means purposely or obstinately and is designed to describe the attitude of a [person], who, having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements. United States v. Illinois [*20] Central Railroad, 303 U.S. 239, 243 (1938).

We conclude that when Sec. 666 penalizes an employer who willfully violates the requirements of Sec. 654, Congress intended to punish the conduct of one who "intentionally disregards the statute or is plainly indifferent to its requirements," or, to punish the conduct of one who knew that his actions might violate the law. Coleman v. Jiffy June Farms, supra.

That the company, when it violated the prescribed standard after a warning from OSHA, acted with indifference to the law and knew that it was violating a safety standard is also clear. The company's conduct here properly is characterized as willful within the meaning of 29 U.S.C. Sec. 666(a). Having determined that the Commission has correctly defined the word "willful" as used in the statute and that and that the conduct of the company comes within that definition on the facts in this case, we affirm the decision of the Commission."

Intercounty Construction Co. v. Occupational Safety and Health Review Comm. -- F2 -- #74-1172 7/24/75 (4th CA). There is no doubt that the evidence in this case indicates that the respondent has "willfully" violated the Act.

On the basis [*21] of the foregoing and having considered the entire record in conjunction with the criteria of section 17(j) of the Act, the proposed penalty of $10,000 is not unreasonable.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact:

1. Respondent Dic-Underhill, a joint venture, is in the construction business and receives, handles and uses goods from states other than New York, and is an employer within the meaning of the Act.

2. On March 13, 1975 respondent's jobsite at the World Trade Center was inspected by compliance officer Peter Richardson of the Occupational Safety and Health Administration.

3. The evidence of record shows that a citation was issued to the respondent on March 26, 1975 for failing to maintain fire extinguishing equipment as required by 29 CFR 1926.150(c)(1)(iv) of the Act.

4. The evidence of record shows that respondent did not have the fire extinguishing equipment present as required.

5. The evidence of record shows that the respondent's jobsite had open sided floors which were not guarded as required by 29 CFR 1926.500(d)(1) of the Act.

6. The evidence of record [*22] shows that the respondent has a long history of similar violations of the Act, and had knowledge of this fact.

7. The evidence of record shows that the respondent's employees were exposed to the hazards created by the respondent's indifference and disregard of the standards.

8. In all of the above findings, the criterion set forth in section 17(j) of the Act were considered.

CONCLUSIONS OF LAW

1. The respondent is and was at all times herein engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent was in violation of i9 U.S.C. 654(a)(2) by failing to comply with 29 CFR 1926.150(c)(1)(iv) of the standard. Citation 1, item no. 1, is affirmed. A penalty of $235.00 is assessed.

4. Respondent willfully violated 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR 1926.500(d)(1) of the standard. Citation 2, item no. 1, is affirmed. A penalty of $10,000 is assessed.

SO ORDERED:

SEYMOUR FIER, [*23] JUDGE, OSAHRC

Dated: November 25, 1975, New York, New York