NATIONAL STEEL & SHIPBUILDING CO., a corporation

OSHRC Docket No. 14265

Occupational Safety and Health Review Commission

January 26, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Counsel for Regional Lititgation, Office of the Solicitor, USDOL

John M. Orban, Assoc., Reg. Sol., USDOL

Bruce E. Allen, 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 [*2]   an unreviewed 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.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I would vacate the two items contained in Citation 1.   The 29 C.F.R. §   1916.23(c)(3)(ii) charge should be vacated because the evidence does not establish that respondent's employee was actually exposed to free silica as alleged.   Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion).   In view of the prevailing wind conditions and the location of the abrasive wheel, the evidence fails to establish that the employee's failure to wear the respirator, which had been provided to him, subjected him to the danger of inhaling the contaminent.   The 29 C.F.R. §   1916.31(b)(1) charge should be vacated because the evidence fails to establish that respondent possessed the requisite knowledge of the alleged violative condition.   Brennan v. OSAHRC and Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975).

With respect to Citation 2, I would affirm only a nonserious violation.   Although the evidence establishes that respondent failed to comply [*3]   with 29 C.F.R. §   1916.51(a), there is nothing to indicate that respondent's conduct constituted a "flaunting of the requirements of the Act" so as to justify the affirmance of a repeated violation.   See Bethlehem Steel Corporation v. OSAHRC, 540 F.2d 157 (3d Cir. 1976).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.   Since my colleagues do not address any of the matters covered in Judge Kennedy's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Albert Escobedo, for the secretary

Bruce E. Allen, for the respondent

Harold A. Kennedy, Judge, OSAHRC: Following an inspection on June 25 and 26, 1975, of the "U.S.S. Roanoke," which was tied up at Finger Pier in the Respondent Employer's shipyard in San Diego, California, the Complainant Secretary on July 1, 1975, issued two citations alleging violation of the Occupational [*4]   Safety and Health Act of 1970.   One citation, designated "Citation No. 1 Non-serious," contained two "items" and alleged that Respondent n1 violated the Act by failing to comply with the safety standard appearing at 29 C.F.R. 1926.23(c)(3)(ii) and at 29 C.F.R. 1916.31(b)(1). n2 The citation alleged violations in the following language:

Item No. 1:

Failure to provide filter type respirator for abrasive blaster working in open air, using silica free abrasive. At location of starboard quarter - 2nd deck on June 25, 1975.

Item No. 2:

Failure to provide either general mechanical or local exhaust ventilation in 10 foot X of foot X 8 foot 6 inch confined space, known as fan room, on June 26, 1975.

The standard appearing at 29 C.F.R. 1916.23(c)(3)(ii) provides:

(c) Abrasive blasting * * *

(3) Personal protective equipment * * *

(ii) Abrasive blasters working in the open shall be protected as indicated in subdivision (i) of this subparagraph except that when synthetic abrasives containing less than one percent free silica are used, filter type respirators approved by the Bureau of Mines for exposure to lead dusts may be used in accordance with §   1916.82(a) and (d).   [*5]  

The standard appearing at 29 C.F.R. 1916.31(b)(1) provides:

(b) Welding, cutting and heating in confined spaces. (1) Except as provided in paragraphs (b)(3) and (c)(2) of this section, either general mechanical or local exhaust ventilation meeting the requirements of paragraph (a) of this section shall be provided whenever welding, cutting or heating is performed in a confined space.

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n1 Respondent is sometimes referred to as "NASSCO."

n2 Section 5(a)(2) provides that each covered employer "shall comply with occupational safety and health standards promulgated under this Act."

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The other citation, designated "Citation No. 2 Repeat," alleged a repeated violation of 29 C.F.R. 1916.51(a) in the following language:

Failure to maintain good housekeeping conditions at all times in location on the 35 foot flat, fire room, catwalk access to boiler on June 25, 1975.

The cited standard provides:

(a) Good housekeeping conditions shall be maintained at all times.   Adequate aisles and passageways shall be maintained in [*6]   all work areas.   All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or dry-docks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material.   Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks.

A penalty of $200 was proposed for the "repeat" citation.   No penalty was proposed for non-serious Item No. 1, and a $35 penalty was proposed for non-serious Item No. 2.   Respondent timely contested both the non-serious and the "repeat" citations.

Following the filing of the pleadings, the case came on for trial in San Diego, California, on October 31, 1975.   The investigating compliance officer, Richard A. Sundstedt, testified for the Secretary. Three employee witnesses testified for the Respondent Employer: Elwood G. Johnson, a sheet metal foreman; Ben L. Magness, a machinist lead man; and Frank R. Darling, Respondent's Safety Manager who accompanied the Secretary's compliance officer during the walk-around insepction.   The representative of one of eight craft unions [*7]   in Respondent's shipyard, Mrs. Virginia Cobb, Business Representative of the International Machinists Union, appeared at the hearing but did not participate in the trial.

Jurisdiction -- The Business of Respondent

Paragraph I of the amended complaint alleges that Respondent is an "employer which has employees engaged in a business affecting commerce within the meaning of Section 3(3), (5) and (6) of the Act." It also alleges that Respondent is engaged in the business of shipbuilding, ship repair and related employment as defined in 29 C.F.R. 1916.   According to the amended complaint, Respondent's employees use substantial quantities of products manufactured outside of the State of California; ships constructed or repaired at its workplace go to points outside of California; and collective bargaining agreements are maintained with national and international agents.   Respondent's answer admits these allegations.   The record also indicates that Respondent usually has six or seven vessels under construction.   In addition, it has a "rather heavy repair schedule" to perform.   Respondent employs approximately 5,400 employees who work at a number of trades -- as sheet metal workers,   [*8]   welders, electricians, carpenters, etc.   See Tr. 146-48.   Such facts establish without question that Respondent is engaged in a business affecting commerce and is an "employer" within the meaning of the Act.

The Inspection

Respondent raises a procedural question with respect to the Secretary's inspection. This issue will be dealt with first.

Compliance Officer Sunstedt testified that his inspection of Respondent's workplace was prompted by a telephonic complaint of Mrs. Cobb, Business Representative of the International Machinists Union.   He believed her complaint involved a threat of physical harm but not one of imminent danger.   In the early afternoon of June 25, 1975, he went to Respondent's shipyard, presented his credentials and went to the safety office to see Respondent's safety manager, Mr. Darling.   Mr. Sundstedt first indicated to Mr. Darling the "areas of concern" (Tr. 76) that prompted Mrs. Cobb's complaint, but she related them herself when she arrived.   Mr. Darling and Mrs. Cobb then accompanied Mr. Sunstedt on his inspection. Mrs. Cobb completed a written "complaint" on June 25, such report making reference to two ships "AOR/Roanoke," "walkways blocked. . .   [*9]   . workers w/o proper face/breathing protection. . . . painting in lower level ship w/o ventilation" and to the "general duty clause." A copy of the complaint was not delivered to Respondent until the following morning.   See RX 2; Sundstedt -- Tr. 12, 14, 34-49, 74-9, 84-6; Darling -- Tr. 136-38, 163.

In its notice of contest Respondent stated that it "contests the validity of the inspection June 25th and June 26th, 1975, and contests all resultant items cited." Respondent concedes, however, that it did not raise any issue of "procedural irregularity" in its answer but contends it was expressly or impliedly tried.   The Secretary disagrees.

Section 8(f)(1) provides:

(f)(1) Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger.   Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided [*10]   the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section.   If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists.   If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.

Respondent argues that the Secretary's failure to deliver a copy of Mrs. Cobb's complaint before the inspection began "breaches the procedural requirements set forth in the Act, and therefore voids any subsequent alleged violations found as a result of the tainted inspection" (Resp's Opening Br., p. 10).

Respondent's argument is not persuasive.   Careful review of the [*11]   record persuades me to conclude that there was substantial compliance with the Act and that Respondent waived any rights afforded by the cited section and related regulations of the Secretary. n3 It is apparent that Respondent was furnished essentially all of the information called for under the statute, including the identity of the employee representative who made the complaint.   The record indicates that Respondent's representative had an understanding of the nature of the complaint made.   There is, morever, nothing in the record to indicate that Respondent ever requested a copy of the written complaint.

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n3 See 29 C.F.R. 1903.11(a).

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Respondent's argument assumes that the Secretary can act only when an employee or his representative has described an alleged violation with "reasonable particularity." I do not so read the statute.   In any event, Respondent has not shown that it was prejudiced in any way by the delay in receiving a copy of the complaint.   Under such circumstances, it would certainly be inappropriate [*12]   to "invoke the extreme sanction of vacating a citation." n4

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n4 See Accu-Namics, Inc., 515 F.2d 828 (5th Cir. 1975). The following comment of the Court, while addressed to another provision of section 8, is pertinent here:

"* * * Here, Accu-Namics contends that its constitutional right to procedural due process has been infringed.   But it would have us adopt an exclusionary rule which would exclude all evidence obtained illegally, no matter how minor or technical the governmental violation.   This we refuse to do.   The manifest purpose of the Act, to assure safe and healthful working conditions, militates against such a result.   * * *"

See also Pratt & Whitney Aircraft 15 OSAHRC 189, 208-9 (1975) and 16 OSAHRC 345, 368-9 (1975)

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The "No Respirator" Charge

Inspector Sundstedt testified that he observed an employee engaged in "sandblasting" against the hull of the "Roanoke" for a period of two to five minutes. The employee stood on a scaffolding as shown in Secretary's Exhibit 1 and Respondent's Exhibit [*13]   1.   Mr. Sundstedt said that employee wore a hard hat and a plastic shield but no respirator. The Secretary concedes that the employee was using a silica free abrasive. See Tr. 12-18, 49-59, 79-80, 86-88.

Safety Manager Darling testified that on the day of the inspection he observed intermittent blasting, involving about for sequences, each being about one minute apart.   He stated that the blasting was down and away from the employee.   Mr. Darling also said that on that day, there was a 10-knot wind coming from a direction that carried the material away from the employee.   According to Mr. Darling, there was no hazardous material involved in the blasting. There was, he said, a mechanical respirator available which should have been worn, according to the Respondent's "sand blast department policy" (Tr. 169).   Even so, Mr. Darling thought the situation presented no hazard to the employee (Tr. 138-46, 164-71).

The only real controversy between the parties on this issue is the proper interpretation of §   1916.23(c)(3)(ii).

That subsection and the preceding one read as follows:

(3) Personal protective equipment.

(i) Abrasive blasters working in enclosed spaces shall be protected [*14]   by hoods and air fed respirators or by air helmets of a positive pressure type in accordance with the requirements of §   1916.82(a).

(ii) Abrasive blasters working in the open shall be protected as indicated in subdivision (i) of this subparagraph except that when synthetic abrasives containing less than one percent free silica are used, filter type respirators approved by the Bureau of Mines for exposure to lead dusts may be used in accordance with §   1916.82(a) and (d).

Respondent contends that the cited standard (subparagraph (ii)) gives the employer the option of not requiring a respirator if a synthetic abrasive of less than one percent free silica is being used.   It argues that the Secretary is interpreting "may" as "shall" and points to §   1916.82(d)(1) as specifically requiring the use of air line or filter respirators only when there is an "unsafe concentration of particulate contaminants." n5

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n5 Section §   1916.82(d)(1) provides:

"(d) Protection against particulate contaminants not immediately dangerous to life. (1) When employees are exposed to unsafe concentrations of particulate contaminants, such as dusts and fumes, mists and fogs or combinations of solids and liquids, they shall be protected by either air line or filter respirators, except as otherwise provided in the regulations of this part."

  [*15]  

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Respondent's contention is not persuasive.   Section 1916.23(c)(3)(i) requires an abrasive blaster to use an air fed respirator or an air helmet when working in an enclosed place.   It is apparent from reading subparagraph (ii) of the cited standard that blasters must use the same protection when working in the open with one exception: an approved filter type of respirator will suffice if a synthetic abrasive of less than one percent free silica is being used.   The standard, thus, permits the use of a filter type respirator, affording less protection than an air fed respirator or air helmet, when there is a lesser hazard presented.

It is thus evident that the cited standard required the wearing of respirator equipment.   The record establishes the blasting employee was not wearing a respirator and, thus, a violation, albeit one of relatively low exposure and gravity.

The "No Exhaust" Charge

It is not disputed that one of Respondent's employees, a welder named Impela, was observed on the second day of the inspection welding in a confined space -- i.e., in the vent or fan room which was said to be   [*16]   about "ten by sixteen by eight" (feet presumably, Tr. 19) -- without an exhaust system contrary to 29 C.F.R. 1916.31(b)(1).   Two other employees were working outside of the room.   A hatch door opened into the room, and there were register openings in the room that afforded some ventilation. Secretary's Exhibit 2 shows the room as seen from the open hatch door after a ventilation system had been installed. Respondent contends that it should not be held liable for the violation as it involved isolated employee conduct unknown to it.

Inspector Sundstedt testified that he observed the welding for "a minute or so" (Tr. 81), but that an employee reported that the welding had gone on for about 10 minutes. It was ascertained that a ventilating system had been ordered, but it had not been installed before the welding had begun.   Sheet Metal Foreman Johnson installed the system during the inspection without delay.   Mr. Johnson thought that there had been no more than five minutes of welding ("about two oven rods," Tr. 103), but he agreed that the room should have had ventilation. He explained that the ventilating system had been requested of another foreman, a Mr. Mills, but that a fitter [*17]   named Unpingo had undertaken to get the welding started on his own.   Mr. Johnson testified that both the welder and the fitter worked under his supervision and that he gave them both a "good talking to" (Tr. 100, 102) for acting contrary to instructions -- i.e., for doing the welding without ventilation. See Tr. 18-22, 60-63, 81, 88 (Sunstedt); Tr. 96-103, 106-114 (Johnson).

The violation was established.   Brennan v. OSAHRC and Alsea Lumber Company, 511 F.2d 1139, (9th Cir. 1975), a case in which the Court held that the Secretary must show that the employer, even in a "non-serious" case, "at least. . . . knowingly acquiesed in" the violation, appears, at first blush, to require dismissal of this charge.   Careful examination of Alsea, however, indicates that the case suggests a different result.   The Court distinguished (footnote 5) cases predicated on an employee's disregard of instructions from those which involve the "failure to provide guardrails, safety equipment, instructions or the like. . . ." Proof of such failure in the latter cases, said the Court, establishes "a prima facie case of an employer's knowledge of its own acts of omission."   [*18]   Here the violation involved an act of omission on the part of the Respondent Employer and not just the disobedience on the part of employees: Respondent failed to provide the safety equipment mandated by the standard.   Respondent was on notice that an exhaust would be needed for welding in the confined space, and it was incumbent upon Respondent not to permit any welding in the area before the system was installed.

As for the violation being an isolated occurrence, the Commission has held that such a defense must be raised and established by the Respondent as an affirmative defense.   Respondent failed to do so. n6

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n6 Such defense contemplates that the employer has strictly enforced a safety rule, and that it could not have anticipated that it would be disregarded by an employee.   See The Leone Construction Co., Docket 4090, dated February 10, 1976; Maryland Shipbuilding & Drydock Company, Docket 4503, dated October 9, 1975; Murphy Pacific Marine Salvage Company, 15 OSAHRC 1 (1975); Mississippi Valley Erection Company, 5 OSAHRC 483 (1973), Standard Glass Co., 1 OSAHRC 594 (1972).

  [*19]  

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The Housekeeping Charge

This charge relates to certain items which Inspector Sundstedt observed on a catwalk that afforded access to and from the starboard boiler on the "Roanoke." The catwalk was said to be 26 inches wide and 11 feet above the floor level.   Mr. Sundstedt mentioned the following items: a large wooden crate or box; pieces of planking; two steam drum fasteners, referred to as strong backs; a rope; and two or more pieces of copper tubing.   Such items were, he said, located near the steam drumhead and were positioned in a manner that would cause one to stumble and fall.   He stated that he was in the area for approximately 35 minutes, but he observed no work being performed there except for some brazing by two employees below the catwalk. Compliance Officer Sundstedt understood that the items had been there for a week, and that none of the material was being used by the two shipfitters whom he said were working nearby in the forward starboard quarter (Tr. 25, 65).   The compliance officer presented four pictures relevant to the charge taken at the time of the inspection. See SXs 3,   [*20]   4, 5, 6; Tr. 22-33, 64-73, 81-4, 88-90.

Machinist Foreman Magness testified that there were three boilers on the "Roanoke," and that he and two others had been working on them for a priod prior to the time of the inspection. During such period, Mr. Magness and his crew would each morning take off of a boiler strong backs, also called dogging devices, in order to get to the steam drumhead. n7 The strong backs would be put back on each afternoon at the end of the work shift.   On the day of the inspection, insulation men, who are called "laggers" and in the employ of subcontractors, were in the process of installing insulation around the drumhead on the starboard side, a two-day job according to Mr. Magness.   Mr. Magness stated that the box had been on the catwalk "one to two days" (Tr. 122) and was there for the purpose of keeping the boiler parts together.   The box and the strong backs were relatively heavy, the former weighing about 150 pounds and the latter 15-20 pounds each.   The planking referred to, Mr. Magness said, was there to provide a temporary access to the steam drumhead. Foreman Magness stated that he had placed the strong backs and the box on the temporary scaffolding,   [*21]   but they had been removed to the catwalk by others, presumably by the fitters who were extending a catwalk. Mr. Magness was unable to explain the source of the copper tubing.   He said he had stepped onto the box himself, but he had seen no fitters on the catwalk. See Tr. 115-135.

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n7 A boiler has two drums, a water or mud drum and a steam drum (Tr. 125).   There are four strong backs on each boiler, but there were only two, taken off of one end of a boiler, on the catwalk (Tr. 127).

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The evidence of record establishes non-compliance with the cited standard and, thus, section 5(a)(2) of the Act.   The crate resting on the catwalk did not present a particular hazard as it was covered with a flat top and was heavy enough that it would not likely move.   On the other hand, there were other items, particularly the pieces of copper tubing which were not shown to be in use, that did present a safety hazard to employees.   The violation was one of low gravity, however, as the evidence did not establish any significant employee [*22]   exposure.

There is no dispute about the fact that a citation charging Respondent with violation of 29 C.F.R. 1916.51(a) for "debris, welding leads and other miscellaneous trash" on the "Golden Dolphin" on July 31, 1974, became final due to Respondent's timely failure to contest it.   See Paras. II, III and IV of the amended complaint and Para. I of Respondent's answer.   Thus, the violation found herein was a "repeated" violation since a second violation of a standard by an employer is to be so classified under recent decisions of the Commission.   See Dobson Brothers Construction Company, Docket 3847, decided February 18, 1975, and cases cited therein.   It is true that there is no evidence of "flaunting," but, as the Secretary points out in his brief, such element, referred to in General Electric Company, 16 OSAHRC 272 (1975), has been "dispelled." See Bethlehem Steel Corporation, Docket No. 8392, decided September 17, 1975.

Penalties

Respondent is a large employer, and there is evidence that Respondent has a "history of [a] previous violation." n8 On the other hand, the gravity of each violation established was low.   Moreover, Respondent's good faith has not been [*23]   challenged.   Nor could it be as Respondent has a good safety program.   See Tr. 148-62 (Darling); RXs 5, 6, 7, 9, 10; also Tr. 103-5 (Johnson).

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n8 Section 17(j) of the Act provides that all civil penalties are to take into account the gravity of the violation and the employer's size, good faith and history of previous violations.

Section 17(a) provides that "any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation."

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Having considered the statutory criteria of the Act, the following penalties are assessed:

Non-serious Item No. 1

0

Non-serious Item No. 2

$35

Repeated Citation

$100

 

The penalty assessed for the repeated violation is less than the amount urged by the Secretary. The Commission has pointed out that Section 17(a) of the Act allows "wide discretion for dealing   [*24]   with repetitive violations that may vary greatly as to the remedy needed to achieve compliance." Bethlehem Steel Corporation, supra. The repeated violation found here does not warrant a penalty as large as the one proposed.

CONCLUSIONS OF LAW

Based on the foregoing, and the whole record, the following conclusions of law are entered:

1.   Respondent is now, and at all times relevant herein, an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter.

2.   Respondent violated Section 5(a)(2) of the Act by failing to comply with 29 C.F.R. 1916.23(c)(3)(ii), 1916.31(b)(1) and 1916.51(a).

3.   Respondent's failure to comply with 29 C.F.R. 1916.51(a) involved a repeated violation of the Act.

ORDER

Based on the foregoing, and the whole record, it is ORDERED that:

1.   Item No. 1 and Item No. 2 of Citation No. 1 Non-serious issued on July 1, 1975, and the proposed penalties proposed therefor (zero and $35, respectively), be AFFIRMED; and

2.   Citation No. 2 Repeat issued on July 1, 1975, and the penalty proposed therefor as modified (changed from $200 to $100)   [*25]   be AFFIRMED.

Harold A. Kennedy, Judge, OSAHRC

Dated: March 29, 1976