SUN OUTDOOR ADVERTISING, INC.

OSHRC Docket No. 13334

Occupational Safety and Health Review Commission

March 21, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Daniel Teehan, Regional Solicitor

Norman H. Kirshman and Stephen A. Mazurak, for the employer

Bryan Greenspun, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

This matter is before us by Commissioner Moran's order, pursuant to 29 U.S.C. 661(i) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"], to review Administrative Law Judge James A. Cronin's December 10, 1975 decision. Judge Cronin vacated a citation for "serious" violation of 29 CFR 1910.28(g)(9) n1 and affirmed a citation and $600 penalty for a "serious" violation of 29 CFR 1910.28(g)(5). n2 The order for review did not invite briefs on particular issues. Respondent filed a brief with the Commission excepting to the disposition of the 1910.28(g)(5) item. No brief has been filed by the Secretary, and the 1910.28(g)(9) item vacated by the Judge is not before us on review. It is, however, relevant to respondent's argument that if the 1910.28(g)(5) item is affirmed it should be found to be non-serious. For the reasons which follow we affirm the decision.

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n1 29 CFR 1910.28(g)(9) provides:

On suspension scaffolds designed for a working load of 500 pounds no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each workman shall be protected by a safety life belt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold), or to securely rigged lines, which will safely suspend the workman if case of a fall.

n2 29 CFR 1910.28(g)(5) provides:

Guardrails not less than 2 X 4 inches or the equivalent and not less than 36 inches or more than 42 inches high, with a mid-rail, when required, of 1 X 4-inch lumber or equivalent, and toeboards, shall be installed at all open sides on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(17) of this section.

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Respondent is engaged in the business of [*3] outdoor sign painting in Las Vegas, Nevada. On April 17, 1975, one of its worksites was investigated by an OSHA compliance officer. This resulted in the issuance of the aforementioned citations alleging the failure of an employee to use a safety belt and the failure to provide guardrails on a scaffold. Two of respondent's employees were painting a sign while standing on a two-point suspension scaffold which was 24 inches wide, 20 feet long and 20 feet above the ground. Employee Owens was not wearing a safety belt when the compliance officer inspected the worksite. Owens claimed that he had worn the belt earlier in the day but had forgotten to attach it after lunch because of his haste to paint as much of the sign as possible before it rained. He stated that his safety belt was unattached for only 15 minutes. Employee Leonardi was protected by a properly secured safety belt. The scaffold was not provided with guardrails, although it was more than 10 feet above the ground.

In vacating the citation for serious violation of 1910.28(g)(9) Judge Cronin found that the failure of respondent's employee to attach his safety belt was an isolated occurrence that respondent could not [*4] have prevented by the exercise of reasonable diligence. Owens was found to have normally worn a safety belt, which was only briefly unattached in the course of this job. The Judge found that respondent had repeatedly emphasized the importance of wearing safety belts, had conducted spot checks of employees in this regard, and had accomplished general compliance with the standard. There has been no exception to the Judge's disposition of this item. However, the facts upon which it is based are relevant to one of respondent's arguments on review concerning the violation of 1910.28(g)(5).

The Judge affirmed the violation of 1910.28(g)(5) and the proposed penalty of $600. Respondent, in its brief before the Judge, argued that the placing of guardrails along the open sides of the scaffold would create a greater hazard to employees, rather than diminishing the risk of injury. Judge Cronin ruled that, although respondent had proved that guardrails were inconvenient and impeded work, diminished safety to employees was not shown. The Judge considered the violation to be "serious," and affirmed the $600 penalty proposed by the Secretary.

In its brief before the Commission respondent [*5] contends that the alleged violation of 1910.28(g)(5) should be vacated because placing guardrails on the scaffold increases the risk of harm to its employees. It asserts that the preponderance of evidence offered at hearing established the increased risk and that the Commission decision in Industrial Steel Erectors, Inc., 1 BNA OSHC 1497, 1973-74 CCH OSHD para. 17,136 (No. 703, 1974) supports a result contrary to that reached by the Judge. Respondent also contends that any violation of 1910.28(g)(5) would be not "serious," because respondent had no knowledge that its employee would neglect to attach his safety belt and he was exposed to serious injury only as a result of this omission.

The "greater hazard" defense is an affirmative one. Industrial Steel Erectors, supra. In Russ Kaller, Inc., T/A Surfa Shield, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976), the Commission set out the prerequisites to application of the defense. First, hazards of complying must be shown to be greater than hazards of not complying. Lee Way Motor Freight, Inc., 3 BNA OSHC 1843, 1975-76 CCH OSHD para. 20,250 (No. 7674, 1975); Carpenter Rigging & Contracting [*6] Corp., 2 BNA OSHC 1544, 1548, 1974-75 CCH OSHD para. 19,252 (No. 1399, 1975). Second, alternative means of protecting employees must be unavailable. G.A. Hormel & Co., 2 BNA OSHC 1282, 1974-75 CCH OSHD para. 18,881 (No. 1410, 1974) (order on petition for reconsideration). Third, a variance application under section 6(d) of the Act must be inappropriate. G.A. Hormel & Co., 2 BNA OSHC 1190, 1974-75 CCH OSHD para. 18,685 (No. 1410, 1974). Respondent has proved none of these elements. As Judge Cronin correctly decided, respondent's allegations proved nothing more than inconvenience to the employees if guardrails were installed. It was never shown that the use of guardrails would create greater hazards than nonuse. The violation is, therefore, affirmed.

The other issue raised by respondent is the alleged "serious" nature of the violation of 1910.28(g)(5) for failure to provide guardrails to protect employees working on the scaffold. Respondent argues that employee Leonardi, who was wearing a safety belt, was not exposed to a hazard which could result in serious injury, and the Judge agreed. Owens, who did not wear a safety belt, was found to be exposed to serious [*7] harm in the event of a fall. Respondent contends that because Owens' neglect to wear a safety belt was found to be an isolated occurrence of which respondent was unaware it also had no knowledge of the serious nature of the guardrail violation.

Respondent's contention is without merit. Respondent knew of the presence of the violation, i.e. the absence of guardrails on the scaffold. Also, Judge Cronin correctly held that respondent is presumed to know that its work necessitated the use of the scaffold more than ten feet above the ground. Section 17(k) of the Act n3 requires knowledge only of the violation, not of its probable consequences. Owens was not protected by guardrails, and if he suffered an accident resulting from the lack of guardrails, the probable result would have been serious physical harm. A violation is "serious" if it makes possible an accident involving a substantial probability of death or serious physical harm. California Stevedore and Ballast Company v. O.S.H.R.C., 517 F.2d 986, 987-8 (9th Cir. 1975). The use of protection alternative to that required by the standard may reduce the gravity of the violation. See National Realty & Constr. [*8] Co., Inc., 1 BNA OSHC 1051, 1971-73 CCH OSHD para. 15,188 (No. 85, 1972). With respect to the cited standards in this case, however, the Judge is correct in stating that the two requirements, each of which is applicable to work performed on a suspension scaffold, provide supplementary, not duplicative, protection. The Judge's ruling that the violation is serious is affirmed.

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n3 Section 17(k) of the Act provides as follows:

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

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The $600 penalty assessed by the Judge is affirmed for the reasons he has set forth.

It is ORDERED that the citation [*9] for serious violation of 1910.28(g)(5) be affirmed and a $600 penalty be assessed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm Judge Cronin's decision vacating the citation for failure to comply with the occupational safety standard codified at 29 C.F.R. 1910.28(g)(9) for the reasons assigned in his decision which is attached hereto as Appendix A. I also agree with his affirmance of the remaining citation.

Judge Cronin correctly rejected respondent's "greater hazard" defense on the 29 C.F.R. 1910.28(g)(5) charge on the basis that respondent had failed to establish that compliance with the standard would diminish rather than enhance employee safety. I agree with the majority's adoption of that finding. I do not agree, however, with their interpretation of Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974). Under the Industrial Steel case, the only requirement for establishing this defense is a showing of greater hazardousness by complying with the cited standard. The additional requirements enumerated in the majority opinion are improper for the reasons I have previously stated in my dissenting opinions in Secretary v. Cinpl Packing Company, [*10] 14 OSAHRC 153 (1974), and Secretary v. George A. Hormel and Company, 11 OSAHRC 725 (1974).

The majority's discussion as to whether or not the violation of 29 C.F.R. 1910.28(g)(5) is "serious" is a meaningless academic exercise and, for the reasons expressed in my separate opinion in Secretary v. California Stevedore and Ballast Company, 4 OSAHRC 642, 647 (1973), I do not join in that exercise. Also see Secretary v. Candler-Rusche, Inc., OSAHRC Docket No. 4675, May 19, 1976 (dissenting opinion), and the cases cited therein.

Appendix A

DECISION AND ORDER

Norman S. Nayfach, Office of the Solicitor, U.S. Department of Labor, for Complainant

Norman H. Kirshman, for the Respondent

Bryan Greenspun, for Respondent

CRONIN, JUDGE, OSAHRC: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) involving an inspection by the Secretary of Labor of a respondent worksite on April 17, 1975. A citation alleging a "non-serious" violation of 29 C.F.R. 1910.26(c)(2)(vii), two citations alleging "serious" violations of 29 C.F.R. 1910.28(g)(5) and 29 C.F.R. 1910.28(g)(9), respectively, [*11] and a notification of proposed penalty, were issued to respondent by complainant on May 2, 1975. Respondent, by notice of contest filed May 16, 1975, contested only Citations Nos. 2 and 3, alleging the "serious" violations, and the proposed penalties of $600.00 each; therefore, Citation No. 1, and the $35.00 proposed penalty, became a final order of the Commission by operation of law.

The alleged violation in Citation No. 2 was described as follows:

Employer failed to equip two-point suspension scaffold being used by two employees approx. twenty (20) feet above the ground with guardrails not less than 2 X 4 inches or equivalent and not less than thirty (30) inches or forty-two (42) inches in height, with a mid-rail, when required of 1 X 4 inch-lumber or equivalent, and toeboards on all open sides.

Standard 1910.28(g)(5), as promulgated by the Secretary of Labor, provides:

Guardrails not less than 2 X 4 inches or the equivalent and not less than 36 inches or more than 42 inches high, with a mid-rail, when required, of 1 X 4-inch lumber or equivalent, and toe-boards, shall be installed at all open sides on all scaffolds more than 10 feet above the ground or floor. Toeboards [*12] shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(17) of this section.

The alleged violation in Citation No. 3 was described as follows:

Employer failed to ensure each workman was protected by a safety lifebelt attached to a lifeline while working on a two-point suspension scaffold approx. twenty (20) feet above the ground in that one of two workmen on the scaffold was not wearing a safety lifebelt.

Standard 1910.28(g)(9), as promulgated by the Secretary of Labor, provides:

On suspension scaffolds designed for a working load of 500 pounds no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each workman shall be protected by a safety lifebelt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold), or to securely rigged lines, which will safely suspend the workman in case of a fall.

The hearing in this matter took place at Las Vegas, Nevada, on September 10, 1975, and both complainant and respondent submitted posthearing briefs. [*13]

Jurisdiction and Issues

Respondent is engaged in the outdoor advertising business and admits that it has employees "regularly handling goods and/or materials and/or equipment in the State of Nevada originally produced and/or manufactured outside the State of Nevada and/or shipped to points in the State of Nevada from outside the State of Nevada" (Complainant's Request for Admission, No. 6 and response) n1. On these facts respondent is found to be an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act with jurisdiction conferred upon the Commission by operation of section 10(c) of the Act.

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n1 Although not introduced at the hearing, admissions filed in response to Requests for Admission served pursuant to Commission Rule 52 are considered self-executing and part of the hearing record.

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The issues to be resolved are:

1. Whether the respondent was in "serious" violation of 1910.28(g)(5) and 1910.28(g)(9) on April 17, 1975?

2. If the violations were committed, what [*14] penalties are appropriate?

Findings of Fact

Upon the credible evidence of record, the following facts are found. Any proposed findings of fact inconsistent with these findings are denied.

1. On April 17, 1975, respondent maintained a workplace at the north side of a lot adjoining 5188 S. Paradise Road in Las Vegas, Nevada.

2. At this worksite on April 17, 1975, respondent had two employees engaged in painting a billboard from a two-point suspension scaffold, 24 inches in width and 20 feet in length, not equipped with any guardrails, midrails and toe-boards at its open sides (Requests for Admission No. 14, Tr. 22, 65; Exhibits C-1-C-5). This scaffold was approximately 20 feet above the ground and the surface of the ground underneath the scaffold was "very rocky, lots of rocks and gravel" (Tr. 23, 27).

3. Employee Owens, at the time of inspection, and for a period of approximately 15 minutes prior thereto, was not protected by a safety lifebelt attached to a lifeline. He had been protected by an attached safety lifebelt for about 2 hours on the morning of April 17, 1975, but at one point he had descended from the scaffold, and upon returning to his work position, [*15] he forgot to wear his safety lifebelt (Tr. 80-83; Exhibits C-1-3).

4. Employee Leonardi was protected by a safety lifebelt attached to a lifeline while working on the scaffold on April 17, 1975 (Tr. 22, 80, 81, 86).

5. Employee Owens believed himself to be in charge of the work in progress because, in his words, he was "senior man"; he, however, had never been told that he had supervisory responsibility on that job or any other, and respondent and his co-worker, Mr. Leonardi, did not consider Mr. Owens to be in charge of the particular work project (Tr. 103, 114, 115, 127, 129, 130, 134, 135).

6. To reach the ladder from his work position for the purpose of descending from the scaffold, Employee Owens had to traverse almost the entire length of the scaffold from left to right, step around Mr. Leonardi with his back to the outer edge of the scaffold, and then descend the ladder (Tr. 23-25; Exhibits C-2, 3).

7. During the twelve-month period preceding April 17, 1975, respondent held monthly safety meetings. Attendance by employees was mandatory and at these meetings, employees' safety equipment (safety belts and lanyards) was inspected; safety films were shown, OSHA [*16] requirements were discussed, and use of safety belts was emphasized (Tr. 33, 44, 78, 135-138, 150-154).

According to Employee Owens:

"At these meetings, after the meeting we have been instructed time and time again never to go on a sign without a safety belt. That's the last order of business always" (Tr. 78).

8. The presence of guardrails on a two-point or "swing stage" scaffold causes employees working there some "difficulty" because of the angled inward slant which the scaffold assumes as it approaches the top of the billboard. As the scaffold is raised during the work in progress, the outer side, top rail becomes positioned in the small of the employee's back and tends to throw him off balance. The addition of guardrails on a two-point suspension scaffold also increases the weight of the scaffold. Sometimes the lifeline catches on the back of the guardrail of a two-point suspension scaffold which "scares" and results in a "shock" to an employee (Exhibit R-1, Tr. 94-100, 111-116).

9. There isn't sufficient evidence to establish that the use of standard guardrails on the two-point suspension scaffold under the conditions existing on April 17, 1975 would have resulted [*17] in a hazard greater than the falling hazard created by their complete absence.

10. The failure of Employee Owens, who was not serving in a supervisory capacity for respondent on April 17, 1975, to use a safety belt attached to a lifeline is considered an isolated incident of employee misconduct committed without respondent's knowledge. This failure by Mr. Owens was the result of inadvertence caused by his haste to complete as much of his assigned duties as he could before inclement weather halted the work.

11. Following an inspection by the State of Nevada in May 1974 of a respondent worksite a citation was issued to respondent for the failure of certain of its employees to wear safety belts attached to lifelines. As a result of this citation the respondent embarked on a safety program to assure the use by their employees of safety belts and lines (Tr. 136-138; 139-140, 150-153).

12. Between the May, 1974 inspection and April 16, 1975, there is no indication that any of its employees had failed to wear safety belts attached to lifelines while working off scaffolds (Tr. 153).

13. There is insufficient evidence that respondent knew, or with the exercise of reasonable diligence [*18] could have known, that Employee Owens would disregard respondent's standing orders and work on the billboard without an attached safety belt and lifeline.

14. Due to the absence of any guardrail on all open sides of a two-point suspension scaffold, and the lack of an attached safety belt and lifeline, on April 17, 1975, respondent's employee, Mr. Owens, was exposed to a falling hazard which in the event of a fall could have resulted in serious physical injury or death.

15. Due to the absence of any guardrails on a two-point suspension scaffold, respondent's employee, Mr. Leonardi, was exposed to a falling hazard. Due to the additional protection afforded by his attached safety belt and lifeline, a fall by Mr. Leonardi would not have resulted in serious physical injury or death.

Discussion

A "serious" violation of 29 C.F.R. 1910.28(g)(5) is found. No guardrails had been installed along the open sides of a two-point suspension scaffold operating 20 feet above ground level. The respondent is presumed to know that its work in progress necessitated use of a two-point suspension scaffold more than 10 feet above the ground and, therefore, is charged with the non-delegable [*19] responsibility of assuring that standard guardrails were installed before commencement of the work on April 17, 1975.

Respondent contends that it should not be held in violation of this standard because the safety of its employees would have been endangered by compliance with the standard, rather than protected, on the date of inspection. In my view the record fails to support this contention by a preponderance of evidence.

Respondent did establish that the presence of guard-rails may impede the work in progress when the scaffold nears the top of a billboard, and does cause employees some personal inconvenience. However, in order to be relieved of his obligation to comply with a standard under the principle enunciated by the Commission in the case of Secretary of Labor v. Industrial Steel Erectors, Docket No. 703, 6 OSAHRC 154 (1974), an employer must establish that compliance with a standard on the date in question would have diminished rather than enhanced the safety of his employees.

The general objective of the two standards involved in this case is identical -- to reduce hazards inherent in working on two-point suspension scaffolds at heights exceeding 10 feet. [*20] The safety belt and guardrail requirements, however, are intended to provide supplementary, not duplicative protection. For example, the standard anticipates the possible collapse of the scaffold by prescribing that lifelines are not to be attached to the scaffold. Obviously, guardrails would not provide any protection in the event of a scaffold collapse. On the other hand, requiring the installation of guardrails in addition to using safety belts represents an attempt to assure to employees falling protection in work situations where, for whatever reason, safety belts do not afford any protection. As the record indicates, an employee is not always able, because of the occasional need to leave his work position, to be constantly attached to his lifeline, and it is during this period that guardrails will afford him essential protection. Also, the presence of standard guardrails reduces the likelihood of falling off a scaffold in the first instance. The use of safety belts is primarily directed to restricting the length of the fall, thereby reducing the seriousness of any resulting injury, while guardrails are designed to prevent a worker from falling off a scaffold.

Clearly then, [*21] by not installing guardrails on all open sides of its two-point suspension scaffold, respondent exposed both employees to the hazard of falling off the scaffold.

In determining whether or not this violation is "serious" and presents a substantial probability that serious physical harm could result, we are limited to an examination of the particular circumstances of this case. Unquestionably, if Employee Owens had fallen off the scaffold on April 17, 1975, his fall could have resulted in serious physical harm and, as previously pointed out, respondent is presumed to know that guardrails were absent on ths scaffold; therefore, knowledge of the presence of that violation by respondent was established. The fact that respondent did not, and could not with the exercise of reasonable diligence, know that one of its employees was not wearing his safety belt in violation of 29 C.F.R. 1910.28(g)(9), does not preclude a finding of a "serious" violation of the guardrail standard. The test to be applied is whether respondent knew of the presence of the violation under consideration and not whether respondent knew or should have known of the presence of another violation.

Because I am [*22] persuaded that the record evidence establishes that the failure of Employee Owens to attach his safety lifebelt on April 17, 1975, was an "isolated" occurrence, unknown to the respondent, the citation for the alleged violation of 1910.28(g)(9) will be vacated. The evidence establishes that respondent has continually emphasized to its employees at safety meetings the importance of wearing safety belts and instructed them to use them whenever working on a sign; conducted periodic inspections of issued safety equipment, and instituted field checks to assure compliance and determine if employees were using safety belts (Tr. 78, 135-138). There also is an indication in the record that, since its inception in May of 1974, this safety program has been effective in accomplishing compliance with the safety belt standard. Furthermore, it appears that the incident of April 17, 1975, was the first time that Employee Owens had ever failed to utilize a safety belt when working on a sign (Tr. 101, 137, 153). On this record, therefore, we conclude that respondent was not in violation of 1910.28(g)(9) on April 17, 1975, because it was unaware that Employee Owens was not using his [*23] safety belt and respondent had been exercising reasonable diligence preceding that date to assure employee compliance with the safety belt requirement. See Secretary of Labor v. Ira Holliday Logging Company, Inc., Docket No. 237, 2 OSAHRC 1415 (1973).

The actions and knowledge of Employee Owens are not imputable to respondent for several reasons. He was not a foreman on the day in question, and, even if he had been, a respondent will not be held liable for the unauthorized acts of a foreman in a situation, like here, where only the foreman who created the hazard was exposed to it and there is no showing that the employer's affirmative action, or failure to act, contributed to the violation. See Secretary of Labor v. Dandy Masonry, Inc., Docket No. 10792 (1975).

All evidence relating to the four factors prescribed by section 17(j) of the Act (29 U.S.C. 666(i)) in assessing penalties, the size of respondent's business, gravity of the violation, the good faith of respondent, and its prior history of violations under the Act, have been considered.

Respondent is the second largest outdoor advertising concern in the State of Nevada with $700,000.00 to [*24] $800,000.00 gross business a year. Apparently, respondent has no prior history of violations under this Act, although in May, 1974, it was issued a citation for violation of a State of Nevada safety standard which has become a final order (Tr. 142). On this record there is nothing to indicate an absence of good faith on the part of the respondent. Despite the relatively brief duration of employee exposure to the "serious" hazard, the gravity of the violation relating to the absence of guardrails on April 17, 1975, was moderately high, thus requiring a penalty sufficient to assure respondent's future compliance. Based on the foregoing, we believe a penalty of $600.00 to be appropriate.

Conclusions of Law

1. The respondent is an employer engaged in a business affecting commerce within the meaning of 29 U.S.C. 652(5).

2. On April 17, 1975, respondent was in violation of 29 C.F.R. 1910.28(g)(5), and this violation was "serious" within the meaning of 29 U.S.C. 666(j).

3. A penalty of $600.00 for respondent's violation of 29 C.F.R. 1910.28(g)(5) is appropriate.

4. On April 17, 1975, respondent was not in violation of 29 C.F.R. 1910.28(g)(9).

ORDER

Based on [*25] the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:

1. A violation of 29 C.F.R. 1910.28(g)(5) is AFFIRMED and a penalty of $600.00 ASSESSED.

2. Citation No. 3 issued May 2, 1975, alleging a violation of 29 C.F.R. 1910.28(g)(9), and any proposed penalty based thereon, are hereby VACATED.

Dated: December 10, 1975

James A. Cronin, Jr., Judge, OSHRC