SOUTHEAST CONTRACTORS, INC.
OSHRC Docket No. 1445
Occupational Safety and Health Review Commission
May 8, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On June 26, 1973, Judge Paul L. Brady issued his decision and order in this case, vacating the Secretary's citation for serious violation and proposed penalty of $600.
On July 17, 1973, the Commission directed that the decision and order of the Judge be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq. (1973), hereinafter referred to as "the Act").
The Commission has reviewed the entire record in this case. We adopt the Judge's decision and order only to the extent that it is consistent with the following.
Respondent, a paving subcontractor, was hired by a prime contractor to pave a portion of highway under construction near Montgomery, Alabama. Respondent then contracted with the Bill Echols Trucking Co., (hereinafter referred to as "Echols") to haul hot asphalt from the asphalt plant to respondent's worksite.
On August 11, 1972, one of Echols' trucks was making a routine delivery for respondent. Upon arriving at the job site from the asphalt plant it was customary to back up the dump trailer to a spreader,- [*2] where the asphalt was dumped. On this day, however, a stalled truck in the roadway required backing up an additional 1,500 to 2,000 feet to the spreader.
Upon backing to a point about 30 to 50 feet from the stalled truck, the dump trailer stopped while one of respondent's employees, along with the driver of the stalled truck, who was employed by Echols, removed a cable that was blocking the roadbed. This work was done at the direction of respondent's foreman. Immediately thereafter, the driver of the stalled vehicle and respondent's foreman directed the dump trailer to continue backing up.
As the dump trailer was backing up it was flagged back by the driver of the stalled truck to a point just past his truck. He stopped signalling when the moving vehicle was clear of the stalled truck. At about 25 to 30 feet past the stalled truck and about 10 feet from where the driver of the stalled truck had discontinued signalling, the dump trailer ran over respondent's employee who had earlier assisted in removing the cable. Respondent's employee was fatally injured.
I.
The standard in question, 29 CFR § 1926.601(b)(4), reads as follows:
(4) No employer shall use any motor [*3] vehicle equipment having an obstructed view to the rear unless:
(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or;
(ii) The vehicle is backed up only when an observer signals that it is safe to do so.
Respondent contends that the sounding of the truck's air horn as the truck was being backed up complied with paragraph 4(i) of the standard. We disagree. Paragraph 4(i) of the standard specifically requires a reverse signal alarm. In its brief, the respondent concedes that one of the purposes of a reverse signal alarm is to reveal the direction of travel of the vehicle. An ordinary truck horn does not reveal the direction of travel. It may indicate either forward or backward motion, or other reason for alarm. Consequently, the mere sounding of an ordinary horn is insufficient under the terms of the standard to put workers on notice that a vehicle is about to back up.
At the hearing and in the subsequent briefs of the parties the issue has been raised as to whether there is a requirement under the standard that the reverse signal alarm be automatic. n1 Although we believe that such a requirement would be an invaluable safeguard [*4] against the inadvertance of a truck driver, we do not find any language in the standard as presently written that would require an automatic alarm.
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n1 An automatic alarm is one which does not need any action on the part of the driver to activate. The alarm sounds automatically when the truck is placed in reverse gear or begins to travel in reverse.
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The standard imposes an affirmative duty on an employer who "uses" motor vehicle equipment with an obstructed rear view to have either a reverse signal alarm n2 or a competent flagman.
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n2 Much of the hearing and subsequent briefs of the parties has been concerned with exactly what type of reverse signal alarm is required under the standard. We do not reach that issue.
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Under the particular facts in this case, this duty fell not only on Echols, who operated the trucks, n3 but also on respondent who was [*5] working under a contractual arrangement with Echols for the hauling of asphalt.
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n3 Echols was cited under this standard also.
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The Secretary of Labor's application of the standard implicitly contemplates that the "use" of any motor vehicle equipment subject to the standard would include the unloading of that equipment. The standard permits an alternative interpretation that would more narrowly define the term "use" as operation of the equipment. We accept the Secretary's interpretation. The word "use" is not synonymous with "operation." In the context of this standard, we believe that it takes on the broader meaning of "apply to one's service." n4
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n4 This broader meaning of "use" is frequently found in other areas of law, e.g., insurance law. Cf. Maryland Cas. Ins. Co. v. Marshbank, 226 F.2d 637 (3d Cir. 1955).
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We additionally [*6] note that the intent of the standard is to assure the safety of pedestrian workers when the driver of the vehicle is unable to see clearly his course of travel. To require the operator of a delivering vehicle to send another employee to the worksite for the sole purpose of directing the driver when the truck is unequipped with a reverse signal alarm, would put an onerous burden on the operator of the delivering vehicle. We do not believe that such a burden was intended by the drafters of the standard. Further, the employees of the "accepting" employer are, in all but the most unusual circumstances, the workers that the standard is designed to protect.
For the foregoing reasons, we find that respondent was "using" the truck within the meaning of the standard and is in violation of the Act for failure to comply with the standard.
Respondent argues that the standard does not require that there be a separate observer for each employer at the jobsite. We agree. The requirement of the standard is net if there is at least one "observer" whose function is to signal the vehicle back during the entirety of the backing operation. The observer must have a clear view of the rear of the [*7] vehicle during backing.
Upon the facts previously stated, it is clear that another Echols' employee had acted as an observer for only a short distance; once the moving vehicle was past his location that he had stopped signaling; and that the truck continued to back up, running over respondent's employee and fatally injuring him. Thus, it is clear that the truck was backing up without an observer as required by the standard. It is clear from the record that a "reverse signal alarm" was not used. Accordingly, the standard was violated.
II.
We now turn to the assessment of the penalty. Although we have concluded that the respondent did not comply with the requirement of a reverse signal alarm or the alternative use of an observer to signal the vehicle being backed up, the driver of the truck did blow his horn with great frequency and the sound of the horn was well above the surrounding noise level, including the sound of the truck. In addition, the evidence indicates that the truck was backing at about one and one-half miles an hour. These circumstances, coupled with the exposure of very few employees, suggest a low probability of harm. Finally, there is no history [*8] of previous violations and there is nothing to suggest a lack of good faith upon the part of the respondent. A penalty in the amount of $100 is appropriate.
Accordingly, it is ORDERED that the citation for serious violation is affirmed and a penalty of $100 is assessed therefor.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: Judge Brady correctly decided this case and his decision should be affirmed.
After hearing the witnesses and observing their demeanor, something the Commission has not had an opportunity to do, the Judge reached the factual determination that the dump trailer was being backed up at the time of the accident pursuant to the direction of an observer and that it was safe to do so. That is all that is required by the standard, since it is written in the alternative: an alarm or an observer.
The standard does not require that an observer continuously signal the operator of a backing vehicle that the way remains clear. The Commission erroneously disregards the clear language of the standard and, in effect, rewrites the standard in order to enable them to sustain a violation under the facts presented at the hearing. Of course, only the Secretary [*9] of Labor -- not this Commission -- has the authority to promulgate occupational safety standards. 29 U.S.C. § 655.
The Commission's conclusion that the blowing of the air horn did not satisfy the standard's signal alarm alternative is also erroneous. The air horn was manually blown continuously from the time the driver began to back the vehicle until the respondent's employee was hit. After the accident, automatic backup horns were installed on the trucks used by the Echols Company. The tractor driver testified that his air horn was considerably louder than these backup horns, and his testimony was corroborated by an expert witness. The complainant's inspector, whose investigation initiated the charges in this case, testified at the hearing that the blowing of the air horn would have sufficed if it had been automatically activated when the tractor was placed in reverse gear. The Commission is here ignoring that position since "we do not find any language in the standard as presently written that would require an automatic alarm."
The purpose of this standard is obvious: to alert workers to the presence of a backing vehicle. n5 It would seem manifest that the loudest horn would [*10] best serve that purpose irrespective of the manner of activation. The Commission has previously held that compliance with a standard is not required when an employer uses another safety measure which is safer than the one set out in the standard. Secretary v. Industrial Steel Erectors, Inc., That rule would seem to be applicable in the instant case to show compliance with the "alarm" alternative to the standard.
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n5 Note is taken of the fact that, in the opinion of the driver of the stalled truck, and death of respondent's employee resulted from suicide rather than by accident.
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The Commission also errs in holding that the standard placed the duty for compliance therewith on the respondent.
The respondent is an employer for jurisdictional purposes as it regularly hires employees on a continuing basis. However, this does not necessarily mean that the respondent is in violation of 29 U.S.C. § 654(a)(2) for every failure to comply with a safety standard which [*11] occurs within its worksite. Secretary v. Gilles & Cotting, Inc., For example, an employer cannot be held in violation of that subsection if his employees are not affected by noncompliance with a standard. Secretary v. City Wide Tuckpointing Service Co., Similarly, there can be no violation of the Act by a respondent for failure to comply with a standard which charges some other employer with the duty of implementing the standard.
The standard at issue here provides that "[n]o employer shall use any motor vehicle equipment having an obstructed view to the rear unless" he complies with one of two specified conditions. (Emphasis added.) Considering the general rule of agency that an employer is normally responsible for the acts of his employees that are performed within the scope of their employment, n6 it is fair to assume that an employee's use of a vehicle in a manner prohibited by the standard equates to such use by his employer. Another pertinent general rule is that a contractor is not responsible for the acts of his subcontractors or their employees. n7 Therefore, [*12] the critical question is whether the tractor driver was an employee of the respondent or his subcontractor.
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n6 Restatement (Second) of Agency § 219 (1957).
n7 57 C.J.S. Master & Servant § 584 (1948).
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Although we have recognized that employment relationships are not to be construed according to technical concepts of the common law, we have indicated that the authorities for this proposition do not mean that the Secretary can create an employment relationship where none exists in fact. Secretary v. Gilles & Cotting, Inc., supra. The Secretary is not free to change the normal business relationship of various parties unless Congress has indicated that he may do so. Secretary v. James E. Roberts Company, aff'd on Commission review, April 16, 1974. n8 Our previous holdings establish that the Act itself does not create an employment relationship where there is none in fact. See, e.g., Secretary v. Dore Wrecking Company, [*13] January 24, 1974. It follows, a fortiori, that when a term regarding such a relationship is used in a standard it cannot be expanded beyond its plain meaning. Thus, the ordinary meaning of the word "employee" must be utilized to determine if the tractor driver was an employee of the respondent. See Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Company, 404 U.S. 157 (1971).
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n8 In a well-reasoned decision in that case which involved a factual situation very close to that existing in the instant case, the Judge held that a crane operator was not the employee of the general contractor. The Judge's reasoning there is applicable here.
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Control over the worker is an important consideration in ascertaining an employment relationship. Secretary v. Gilles & Cotting, Inc., supra. However, it is the right of control, not the exercise of control, that is governing. n9 Another significant factor to be considered is whether there is an agreement between the parties. Other important [*14] indicators of an employer-employee relationship are the source of the worker's pay, the authority empowered to discharge the worker, the beliefs of the parties concerning the existing relationship, and the length of time for which a person is employed. n10
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n9 See, e.g., annotation in 17 A.L.R. 2d 1388, 1394 (1951).
n10 57 C.J.S., supra note 7, § 563; Restatement (Second) of Agency § 220 (1957).
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In this case, the respondent provided a superintendent who exercised overall supervision at the worksite. Within the project area, employees of the respondent directed Echols' drivers as to where they were to discharge their loads. However, the mere fact that an employee performs work that is pointed out to him by a person who entered an agreement with his employer does not make him that person's employee. More than that is required to establish an employer-employee relationship. Standard Oil Company v. Anderson, 212 U.S. 215 (1909); Discoll v. Towle, 181 Mass. 416, 63 N.E. 922 (1902).
The tractor [*15] driver considered himself to be an Echols' employee. He had been employed by Echols for nine years. His work agreement was with Echols, not with the respondent. He was paid by Echols and was subject to its supervision. Each morning he reported to Echols for dispatch to the worksite before proceeding thereto. These facts establish that the driver was an Echols' employee.
Accordingly, I submit that the Judge properly found no violation in this instance and that the Commission is in error in reversing that finding.
[The Judge's decision referred to herein follows]
BRADY, JUDGE, OSAHRC: This proceeding is brought pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. The citation which was issued August 24, 1972, alleges that as the result of an inspection of the Respondent's workplace at Interstate Highway -- 65, Montgomery, Alabama, Respondent violated Section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated [*16] by the Secretary pursuant to Section 6 thereof. A notice of proposed penalty was issued with the citation.
The Secretary alleges that on or about August 11, 1972, Respondent violated the standards codified at 29 CFR 601(b)(4) and 29 CFR 1903.2.
On December 6, 1972, a pre-hearing conference was held. The hearing of the cause was held on March 15, 1973, in Montgomery, Alabama, and no additional parties sought to intervene in the proceeding.
ISSUES
The issues to be determined in this proceeding relate to whether the aforementioned standards have been violated. If the violations occurred, the question arises as to whether one violation was of a serious nature under the criterion of Section 17(k) of the Act. If Respondent is adjudged in violation of the standard as alleged, a determination must be made as to whether the penalty proposed is appropriate.
The Respondent also raises jurisdictional issues based upon the following:
1. That the Act is in violation of the United States Constitution.
2. That the cited standard has no application to Respondent because the contract to perform the work which gave rise to the citation herein was executed prior to the effective [*17] date of the standard, and was specifically declared exempt by the Secretary.
Respondent contends that the Act violates the due process clause of the Fifth Amendment, and denies the right to trial by jury as provided by the Sixth Amendment.
It must be held that the Commission lacks the jurisdiction to determine the constitutional questions, however the applicability of the cited standards must be resolved before deciding the case herein on the merits.
Pursuant to Part 1518 -- Safety and Health Regulations for Construction, (36 F.R. 7340, April 17, 1971) and promulgated under authority of the Construction Safety Act, (40 USC 327) Respondent contends the cited standards are of no force and effect. It is stated therein that;
The rules are applied only to new construction contracts which are advertised on or after the seventh day following publication of this document in the Federal Register. In the case of negotiated construction contracts, the rules shall be effective as to new contracts of this nature for which negotiations are commenced on or after ten days following publication of this document in the Federal Register.
The testimony of Mr. Burt Bogart reveals that the Respondent's [*18] contract to perform the duties which gave rise to the issuance of the citation was dated December 4, 1970. (Tr. 159) It is therefore maintained that the Commission has no jurisdiction under these rules and that Respondent is exempt from any enforcement thereof.
The position taken by Respondent cannot be sustained in view of the subsequent rules issued by the Secretary and adopted as standards under the Act. Section 4(b)(2) of the Act specifically states that the standards adopted from other Acts "shall be deemed to be Occupational Safety and Health standards issued under this Act, as well as under such other Acts."
On April 27, 1971 the Secretary signed the rules which set forth a new Part 1910 which included National Consensus Standards and Established Federal Standards. Section 1910.12 states:
CONSTRUCTION WORK
(a) Adoption and Extension of Established Safety and Health Standards for Construction. The Standards prescribed by Part 1518 of this title and in effect on April 28, 1971, are adopted as Occupational Safety or Health Standards under Section 6(a) of the Act and shall apply according to the provisions thereof, to every employment and place of employment of [*19] every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed by this paragraph.
Although Section 1910.12 did not specifically revoke the prior rule, it clearly provided the authority whereby those employers such as the respondent herein are subject to the standards in question without limited applicability. Further, a republished Part 1910-(37 F.R. 22102, 22105, October 18, 1972) clarified the provisions and effective dates of the regulations contained therein.
Based upon the foregoing, Respondent's contract date does not cause it to be exempt from the Occupational Safety and Health Standards in effect on or about August 11, 1972, the time the alleged violations were committed herein.
THE ALLEGED VIOLATION OF 1926.601(b)(4)
This regulation states as follows:
No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:
1. The vehicle has a reverse signal alarm audible above the surrounding noise level or:
2. The vehicle is backed up only when an observer signals that it [*20] is safe to do so.
The alleged violation is described in the citation as "Failure to guard employee against hazard of working around truck without reverse signal alarm or observer to signal truck it is safe to travel in reverse gear."
Complainant's witness Bobby James Williamson testified that he was employed by the Bill Echols Trucking Co. and that he drove a dump trailer which is approximately 30-33 feet in length (Tr. 19, 20). On August 11, 1972, he was hauling asphalt for the Respondent on a job at Interstate 65, Montgomery, Alabama (Tr. 21). Upon arriving at the job site from the Asphalt plant it was the procedure to back the trailer up to a spreader where the asphalt was dumped, and the spreader placed the asphalt on the road surface (Tr. 27).
On the aforesaid date, while he was making his second trip of the day it was necessary for him to enter the roadbed at turn-out #1 instead of turn-out #2 (joint Ex. No. 1). This was caused by a truck being stuck in turn-out #2 and required backing up an additional 1,500 to 2,000 feet to the spreader (Tr. 45). Upon backing to a point about 30 to 50 feet from the truck in turn-out #2 he stopped while Respondent's employee Record, and [*21] Echols employee Green removed a cable which was blocking the roadbed. This work was done at the direction of Respondent's foreman, Clark, who along with Green told the witness to commence proceeding backward (Tr. 49).
Larry Green, the driver of the other vehicle, flagged him back passed the stalled vehicle as he was blowing his air horns which are mounted on the cab (Tr. 33, 34). At approximately 25 to 30 feet past the stalled truck of Mr. Green, and while looking in his rear mirrors Mr. Williamson testified that he "felt a lump" and noticed in his right mirror that Mr. Clark, who was sitting in his pick-up truck had put both of his hands in the windshield of his truck indicating something was wrong. He therefore stopped and learned his trailer had run over Mr. Record (Tr. 35). He testified that he had backed his truck up approximately ten feet after Mr. Green discontinued signaling him before Mr. Record was struck by the wheels on the right side (Tr. 50).
Respondent's witness Larry Green testified that upon removing the cable Mr. Record went around in front of the truck and walked along side of it on the right in the same direction it was backing, as he remained on [*22] the left side signaling Williamson back. He stated that he could see that the roadbed was clear, and he knew the air horn was blowing, which continued until the time of the accident (Tr. 172-175). Green further testified that the truck had passed him about 15-20 feet before the accident occurred (Tr. 186).
Mr. Williamson further testified that usually while backing, at the distance of about 100 to 150 feet a flagman was present who directed the drivers to the spreader (Tr. 54). At the time of the accident he was backing at a speed of about 1 to 1 1/2 miles per hour (Tr. 66).
The record discloses that in the operation of the tractor-trailer vehicles used on the jobsite there was an obstructed view to the rear (Tr. 145, 181). Also, that the vehicles were operated without reverse signal alarms (Tr. 61, 62). Testimony of the Compliance Officer indicated that the purpose of the reverse alarm is to reveal the direction of travel of a vehicle, and also to provide a signal as to the proximity of the vehicle (Tr. 132). Respondent provided some evidence in an effort to show that the sound level of the air horns which were in use on the jobsite exceeded the sound level of back [*23] up horns (Tr. 193-198).
In determining whether section 1926.601(b)(4) of the regulations has been violated in this case as alleged, the primary question is whether the vehicle was backed up after an observer had signaled that it was safe to do so. It should be noted that the regulation involved does not indicate where an observer should stand or that an observer should be regularly scheduled (Tr. 136).
The Compliance Officer, Carl T. Frazier testified that the regulation does not set forth the distance required for a back signal, only that a signal is required when it is safe to do so (Tr. 131). He indicated that such signals are required in an "area where there is a hazard of exposure" (Tr. 124).
The testimony showed that there was no flag man from the turn-outs up to a point of about 150 feet from the spreader. It was stated that the reason for this was that "there was not anything up there." "It was just open space," in reference to the distance beyond that point (Tr. 41). Also it was pointed out that the road surface over which the trucks were backed to the spreader contained a "binder", a sticky substance which is difficult to walk on and is generally avoided (T. 26, 168-69). [*24]
Testimony revealed that Respondent's employees normally work in the immediate area of the spreader, except the foreman. Mr. Record was a strong man whose job was to line up the spreader operator so that the asphalt was laid properly on the roadbed. His work position was on the left side of the road, near the spreader and clearly visible in the left mirror on the cab (Tr. 51-55).
The evidence in this record does not support the allegation that Respondent failed to guard the employee against the hazard of working around a truck in violation of the aforementioned standard. The evidence shows that the vehicle in question was backed up pursuant to a signal that it was safe to do so. Mr. Green pointed that he observed it was safe for backing up before he began to signal (Tr. 173, 181). Also, it is clear that the deceased, Calvin Record, was aware of the backing vehicle prior to the time he was struck, and did walk along side the truck at a pace faster than the truck was traveling (Tr. 173). The evidence does not show that Respondent failed to guard Mr. Record or any other employee against the hazard of working around a truck in violation of the standard as alleged.
ALLEGED [*25] VIOLATION OF 29 CFR 1903.2
The regulation states in part:
(a) Each employer shall post and keep posted a notice or notices to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and for assistance and information . . . Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted . . .
(b) . . . Where employers are engaged in activities which are physically dispersed . . . the notice or notices required by this section shall be posted at the location to which employees report each day . . .
The alleged violation is described in the citation as "failure to comply with posting requirements."
The Compliance Officer testified that on August 17 he was unable to locate the place for the posting of notices by Respondent (Tr. 100, 101). Approximately ten days later he again inquired about the bulletin board and the posting of notices. The foreman, Mr. Clark, informed him that he presumed notices were posted on the bulletin board but he did not know where such [*26] board was located. The same answer was received from Mr. Owens the general superintendent (Tr. 95, 104).
The foregoing undisputed testimony adequately establishes Respondent's failure to comply with the posting requirements as set forth above.
FINDINGS OF FACT
1. Southeast Contractors, Inc., is a corporation having a place of business at 4301 Powell Avenue, Birmingham, Alabama.
2. On August 11, 1972, Respondent was engaged in the construction of Interstate Highway 65, Montgomery Alabama.
3. On August 17, 1972, an authorized representative of the Secretary conducted an inspection of the above worksite at Highway 65, Montgomery Alabama. As a result of the inspection, on August 24, 1972, a citation, and a citation for serious violation was issued, with a notice of proposed penalty.
4. In the process of laying asphalt upon the road bed it was necessary for the tractor-trailers to ordinarily back up approximately 1,500 to 2,000 feet to the spreader. The vehicles had an obstructed view to the rear, and were operated without a "reverse signal alarm."
5. At a distance of approximately 150 feet from the spreader a flagman ordinarily directed the vehicle operators to the spreader. [*27]
6. The balance of the backing distance was in an open or clear area, over a surface which contained a "binder," which is a sticky substance difficult to walk on.
7. Respondent's employees on the jobsite generally worked in the immediate vicinity of the spreader.
8. At the time of the accident herein the vehicle was being backed up pursuant to the direction of an observer that it was safe to do so.
9. On August 17, 1972, and August 28, 1972, Respondent did not have a place for posting notices at its establishment or at the location to which the employees reported each day.
CONCLUSIONS OF LAW
1. Southeast Contractors Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce 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 subject matter herein, pursuant to Section 10(c) of the Act.
2. Respondent is and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a) of the Act.
3. Respondent was not in violation of the standard at 29 CFR 1926.601(b)(4), on or [*28] about August 11, 1972, as charged in the citation for serious violation.
4. Respondent was in violation of the standard at 29 CFR 1903.2 on or about August 11, 1972, as charged in the citation.
5. Respondent failed to comply with the regulation set forth above thereby violating Section 5(a)(2) of the Act.
Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is
ORDERED
1. That citation for serious violation Number 1 and proposed penalty issued for violation of 29 CFR 1926.601(b)(4) is hereby vacated.
2. That citation Number 1 issued for violation of 29 CFR 1903.2 is affirmed.