EARLY-MASSMAN

OSHRC Docket No. 15721

Occupational Safety and Health Review Commission

July 17, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Kenneth Hellman, Reg. Sol., USDOL

Laurence Schor, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge David H. Harris issued on August 30, 1976, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. 651 et seq. Judge Harris concluded that Early-Massman committed a serious violation of section 5(a)(2) of the Act by failing to comply with 29 CFR 1926.700(b)(2). n1 The judge also determined that, contrary to the allegation of the Secretary of Labor (the Secretary), the violation was not repeated within the meaning of section 17(a) of the Act. n2

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n1 The standard provides:

Subpart Q - Concrete, Concrete Forms, and Shoring

1926.700 General provisions.

* * *

(b) Reinforcing steel.

* * *

(2) Employees shall not be permitted to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement.

n2 Section 17(a) of the Act, 29 U.S.C. 666(a) states:

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 violations.

[*2]

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Review was directed by Commissioner Barnako on the following issues raised respectively by the respondent and the Secretary in their petitions for discretionary review: whether the judge erred in concluding that the respondent committed a serious violation by permitting its employees to work above reinforcing rods that offered no protection against impalement, and whether he erred in determining that the violation was not repeated. n3 We affirm the judge's conclusion that the respondent seriously violated the Act by not complying with 29 CFR 1926.700(b)(2), but we reverse his determination that the violation was not repeated.

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n3 Former Commissioner Moran directed review of the judge's decision "for error."

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Facts

As a result of an inspection of the respondent's worksite at 15th and I Streets, N.W., in Washington, D.C., by a compliance officer from the Occupational Safety and Health Administration (OSHA) conducted on September 11, [*3] 1975, the Secretary issued two citations to the respondent on October 17, 1975. At issue here is only Citation No. 2, n4 which alleged a violation of the Act for noncompliance with 29 CFR 1926.700(b)(2) as follows:

Employer permitted an employee to work above vertically protruding reinforcing rod that had not been protected to eliminate the hazard of impalement.

The Secretary's Complaint amended the citation to include at the end of the statement quoted above: "at the deck pad opening, Eye Street between 15th and Vermont Avenue, N.W."

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n4 The respondent, in its notice of contest, challenged both citations and the penalties proposed therefor. In its Answer to the Secretary's Complaint, however, it admitted having committed all the violations alleged in Citation No. 1, and it expressed its intent at the outset of the hearing to contest only the violation alleged in Citation No. 2.

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The Notice of Proposed Penalty issued on the same date as Citation No. 2 characterized the violation as serious and repeated. A penalty [*4] of $1,800 was proposed, and immediate abatement was ordered.

The basis for the characterization of the violation as repeated was a citation issued on June 7, 1974, for a serious violation of the Act abserved during an inspection on May 22, 1974. That prior citation alleged noncompliance with the same standard at the same worksite at issue in this case. In its response to the Secretary's Request for Admissions, Early-Massman admitted that it had been issued such a citation, that it did not contest it, and that the citation became a final order of the Commission prior to September 11, 1975. n5

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n5 By operation of law, section 10(a) of the Act, 29 U.S.C. 659(a), a citation not contested by an employer becomes a final order.

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The respondent was a general contractor for the construction of a subway station. The compliance officer noticed during his inspection on September 11, 1975, that an employee of the respondent was standing near the edge of an unguarded temporary wooden deck while lowering an air compressor hose [*5] to another employee who was working on a concrete pad, referred to as a "dome relief," approximately 14 1/2 feet below the top of the deck. The hose was to be used to clean off the concrete pad. Three rows of roughly parallel reinforcing steel rods, called "rebar," about four feet high protruded vertically from the concrete pad; the rebar was not covered, padded, or otherwise "protected." The row closest to the worker on the deck was almost directly under and parallel to the deck's edge, while the next row was about two feet four inches from the first row. The third row was about eight inches beyond the second row, and the bars in each row were six to eight inches apart and ran the length of the concrete pad. The employee standing on the wooden deck was not wearing a safety belt.

At the hearing, one of the respondent's shop stewards, who was responsible for enforcing safety rules among laborers, testified that at the respondent's safety meetings employees were instructed to wear safety belts when working in a position four feet or more above a lower level. The shop steward went on to state that he heard at different times the instructions given to employees about not working [*6] over unprotected rebar and that the laborers working on each concrete pouring job were instructed to wear safety belts when working over rebar that lacked protection.

The respondent's foreman who supervised laborers testified that the workers were given instructions at the respondent's weekly safety meetings to wear safety belts when working at a height of four feet or more. He further stated that employees received instructions that they should not work over unprotected rebar. The respondent's Safety Superintendent stated that he was the person who instructed employees at the weekly safety meetings and that he told them to use a safety rail or safety belt when working over unprotected rebar.

The compliance officer who inspected the respondent's worksite testified that death or serious physical harm could have resulted from a fall from the deck onto the rebar.

Judge's Decision

On the basis of the testimony noted above, Judge Harris concluded that the respondent "permitted" its employees to work over the unprotected vertical steel rods in violation of 29 CFR 1926.700(b)(2). He found that the respondent instructed its employees to wear a properly tied-off safety belt when [*7] working above unprotected rebar, and he further determined that those instructions did not include any prohibition against performing work over unprotected rebar. He considered the permission to work over unprotected rebar implied from such instructions to clearly conflict with the language of the standard, which specifically requires protective devices to be placed over the rebar before employees are allowed to work above the rebar. Based on the compliance officer's statement as to the consequences of a 10-foot fall onto protruding rebar as well as on "common sense," the judge determined that the violation was serious.

After applying the criteria for a repeated violation set forth in Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), Judge Harris found that the violation was not repeated since the respondent had failed to comply with the standard only once before and the record did not demonstrate a "flagrant and reckless disregard" of the Act on the respondent's part.

Respondent's Contentions

The respondent chose not to file a brief on review but instead submitted a letter in which it states that it will rely on the brief accompanying its petition for discretionary [*8] review with regard to the judge's determination that a serious violation occurred. The letter cites the decision of the United States Court of Appeals for the Third Circuit in Bethlehem Steel Corp. v. OSHRC, supra, and the brief on review of the respondent in George Hyman Constr. Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD P21,774 (No. 13559, 1977), enforced sub nom. George Hyman Constr. Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978), as support for affirming the judge's conclusion that the violation was not repeated.

The respondent argued that the judge's determination that a serious violation was committed is "clearly erroneous" and not based on "substantial evidence" given the record established at the hearing. In addition, the respondent denied the validity of the judge's conclusion that its "practice" was to "permit" employees to work over unprotected rebar, given the fact that the respondent instructed its employees to use safety belts when working over such exposed rebar. n6 Early-Massman also asserted that no evidence of record supports the determination that it violated the standard at issue. Furthermore, the respondent challenged the [*9] validity of the judge's findings that the rebar had been set in place for two or three days and that "there was no other way to pass the compressor hose to the man below." Early-Massman claimed that the rebar was installed on the day of the inspection and that it did all that it could to protect its employees for the short time during which the rebar was exposed. In response to the judge's finding that only one method of passing the hose existed, the respondent asserted that if Judge Harris had made the appropriate inquiries, he would have learned of several alternative methods of lowering the hose not involving exposure to the hazard.

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n6 In its post-hearing Proposed Findings of Fact and Conclusions of Law, the respondent asserted that the alleged violation was an isolated incident involving one employee who had violated the respondent's specific orders to use a safety belt when working over unprotected rebar.

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The respondent seeks reversal of the judge's decision that a serious violation was committed and of the [*10] penalty he assessed or, in the alternative, the reopening of the record to allow the introduction of evidence relating to the judge's allegedly unsupported findings.

Secretary's Contentions

The Secretary filed a brief on review in which he states that he will rely, in general, on his post-hearing brief to the judge and, with respect to the repeated nature of the violation, on his supplemental memorandum filed in George Hyman Constr. Co., supra. In his brief on review, he supplements his post-hearing brief to the judge and recommends imposition of the $1,800 penalty that he originally proposed. He asserts that Judge Harris correctly interpreted the standard as not allowing employees wearing safety belts to work over unprotected rebar, so that the respondent was properly considered to have not complied with the standard even though it instructed its employees to wear safety belts when working above exposed reinforcing steel. The Secretary argues that in many circumstances an employee is not protected from potential impalement just by wearing a safety belt with a six-foot lanyard. He also claims that the respondent could have protected the rebar with 2 X 4 pieces of wood. [*11]

The Secretary further contends in his brief on review that even if the standard is interpreted as permitting employees wearing safety belts to work over uncovered rebar, Early-Massman did not comply with the standard due to its failure to uniformly and effectively enforce its own safety rules. The Secretary asserts that reopening the record for evidence on certain facts, as the respondent requests, is unwarranted.

In his supplemental memorandum submitted to the Commission for its consideration in deciding George Hyman Constr. Co., supra, the Secretary urged that the rationale for determining when a violation is repeated as set forth in Bethlehem Steel Corp. v. OSHRC, supra, be disregarded since that case requires at least two prior violations and the employer's "flouting" of the Act in order to have a basis for a "repeated" determination.

Wether A Violation Occurred

According to the testimony of the respondent's shop steward, foreman, and Safety Sueprintendent (pp. 5-6 supra), the employees of Early-Massman were instructed to wear safety belts when working at a height of four feet or more. The respondent argued that such a work rule precluded a finding [*12] of a violation in this case where the wooden deck was about ten feet above the top of the rebar. The issue of whether the wearing of a properly tied-off safety belt constitutes a valid defense to a citation alleging noncompliance with 29 CFR 1926.700(b)(2) has not previously been addressed by the full Commission. We hold that Judge Harris correctly concluded that wearing a tied-off safety belt is not compliance with the cited standard.

The standard at issue must be read in conjunction with the provision that immediately precedes it:

1926.700 General provisions.

* * *

(b) Reinforcing steel. (1) Employees working more than 6 feet above any adjacent working surfaces, placing and tying reinforcing steel in walls, piers, columns, etc., shall be provided with a safety belt, or equivalent device, in accordance with Subpart E of this part.

(2) Employees shall not be permitted to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement.

The plain meaning of the language used in the two subsections above indicates that the Secretary has chosen to require two different types of protective measures in two distinct, [*13] albeit interrelated, situations. Subsection (1) mandates fall protection in the form of safety belts or their equivalent for employees who are engaged in the installation of rebar, while subsection (2) is directed at the hazard of being impaled upon rebar that has already been installed, as in the instant case. The Secretary could have mandated, but chose not to require, that employees working above installed rebar wear safety belts as the specific means of protection against impalement. n7 It is not the Commission's function to determine the wisdom of the standard. Van Raalte Company, Inc., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD P20,633 (No. 5007, 1976). An employee using a safety belt tied off so as to prevent a fall of greater than 6 feet (see 29 CFR 1926.104(d)) could, as Judge Harris noted in his decision, fall less than that distance and still be impaled where unprotected rebar protrudes from below to within 6 feet of the working surface. Furthermore, if an employee's body extends beyond the point of safety belt attachment, an impalement injury could occur if unprotected rebar was within striking distance of any part of the fallen employee's [*14] body. Accordingly, we conclude that the use of tied-off safety belts is not compliance with 29 CFR 1926.700(b)(2).

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n7 We note that the requirement imposed by the cited standard, protective covering on rebar, is independent of and in addition to applicable fall protection requirements imposed by other standards. See Granite-Groves, A Joint Venture, 77 OSAHRC 28/B12, 5 BNA OSHC 1100, 1977-78 CCH OSHD P21,594 (No. 10677, 1977).

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Assuming arguendo that the use of safety belts by the respondent's employees would have been a means of compliance with 29 CFR 1926.700(b)(2), we further conclude that the respondent has not proven its asserted affirmative defense of unpreventable employee misconduct with respect to the failure of the employee working over the rebar to use a safety belt. In order to establish this affirmative defense, we have held that the employer must prove that the employee's conduct constituting noncompliance with a standard was a departure from a work rule which the employer had uniformly [*15] and effectively enforced, and that the employer possessed neither actual nor constructive knowledge of the departure. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976).

The respondent failed to demonstrate that its safety program was uniformly and effectively enforced. The employee exposed to the impalement hazard testified that he was aware of the instructions to use a safety belt but did not follow them since he did not intend to be there for long. He further testified that, although Early-Massman did conduct weekly safety meetings, he didn't think that the respondent checked absences. He also stated that he had missed safety meetings and was never threatened with disciplinary action for doing so. He went on to state that he knew of no employee who was ever disciplined for violating safety rules. Thus, were we to reach this question we would conclude that this particular affirmative defense was never established by Early-Massman.

For the reasons presented above, we affirm the citation alleging lack of compliance with 29 CFR 1926.700(b)(2).

Whether The Violation Was Serious

The judge correctly noted in [*16] his decision that Citation No. 2 did not, on its face, allege that the violation was serious. The judge, however, did not state that the Notification of Proposed Penalty issued on the same date as the Citation and referring to Citation No. 2, expressly characterized the violation as "serious" (as well as "repeated"). In his complaint, the Secretary did not specifically allege that the violation was serious. At the hearing, the Secretary's representative stated: "Your Honor, I would like to point out the Complainant is alleging repeated violations with respect to Citation Two rather than a serious." (Transcript of Hearing at 8) As the judge noted in his decision, the compliance officer testified that death or serious physical harm could result from a fall from the deck onto the rebar, and no objection to his testimony was raised by the respondent. In its petition for discretionary review and accompanying brief, the respondent did not specifically challenge the judge's determination that the violation was serious, although it did argue that the judge erred in finding that the respondent "committed a serious violation of the OSHA standard at 29 CFR 1926.700(b)(2)."

Despite some [*17] ambiguity evidenced by the facts above concerning the status of the Secretary's allegation that the violation was serious, the Commission adopts the judge's finding that the record shows that the characterization of the violation as serious was tried by the parties, and we affirm the judge's conclusion based on the record that the violation was serious.

Whether The Violation Was Repeated

The Commission held in Potlatch Corp., 79 OSAHRC    /   , 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979), that "[a] violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." In a case such as the instant one, in which the Secretary alleges a repeat violation of section 5(a)(2) of the Act, according to Potlatch Corp., the Secretary can make a prima facie showing of substantial similarity by establishing that the previous and present violations resulted from noncompliance with the same standard. This prima facie showing may be rebutted by evidence of disparate conditions and hazards associated with the violations of the same standard. [*18]

In Potlatch Corp., the Commission declined to follow Bethlehem Steel Corp. v. OSHRC, supa, and held that an employer's flagrant disregard or "flouting" of the Act has no bearing on whether a certain violation is repeated. The Commission will, however, review such evidence in considering what penalty to assess. Similarly, "commonality of supervisory control over the violative condition, the geographical proximity of the violations, the time lapse between the violations, and the number of prior violations" are not concerns applicable in determining whether a particular violation is repeated, but will be considered in assessing a penalty. Potlatch Corp., supra.

In concluding in Potlatch Corp. that a violation can be found to be repeated even though the respondent had violated the Act only once previously, we expressly rejected the "more than twice" concept applied in Bethlehem Steel Corp. v. OSHRC, supra, and relied upon by the judge in this case.

In the instant case, it was stipulated that a citation was issued to the respondent on June 7, 1974, for a serious violation of the Act based on failure to comply with 29 CFR 1926.700(b)(2), the same [*19] standard involved in this case, and that that citation became a final order of the Commission before September 11, 1975, the date of the inspection giving rise to the citation at issue in the instant case. Thus, the requirement that the Secretary demonstrate that there is a final order against the same employer for a substantially similar violation has been met.

Given the specificity of the standard not complied with in both instances, the similar language in the two citations describing the violations, n8 the fact that the respondent received adequate notice of the standard's requirements by virtue of the finality of the prior citation for exposing employees to the same hazard at the same worksite, and the absence of evidence that the violations were dissimilar, n9 we find that the 1974 and 1975 violations were substantially similar. n10 Accordingly, we conclude that the 1975 violation was repeated within the meaning of section 17(a) of the Act.

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n8 The citation issued on June 7, 1974, described the violation as follows:

Emplotees were permitted to work above vertically protruding reinforcing steel while such reinforcing steel was not protected to eliminate the hazard of impalement.

See p. 3 supra for the langauge in the citation issued on October 17, 1975.

n9 The record suggests that there were different project managers and different safety superintendents in charge at the times of the two violations. Proof of different supervisory control is, however, relevant only for penalty calculation according to Potlatch Corp.

n10 Since on the facts of this case Early-Massman could not have rebutted by showing that the conditions and hazards associated with the 1975 violation are disparate from those associated with the 1974 violation, no remand order is necessary. See Belger Cartage Service, Inc., 79 OSAHRC    /   , 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979).

[*20]

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Penalty Assessment

As indicated above, the reliance that the judge and the respondent placed on Bethlehem Steel Corp. v. OSHRC, supra, is now misplaced in light of Potlatch Corp. Although not a factor in determining whether a violation is repeated or not, the fact that the respondent did not demonstrate a flagrant and reckless disregard of the Act can be considered in setting the appropriate penalty according to Potlatch Corp. Since the Secretary did not seek to prove that the same supervisor was in charge at the time of both violations, the record is unclear on that point. Of value in determining the penalty are the considerations mentioned in Potlatch Corp. applied to the instant case: the violations occurred at the same worksite; they were committed about 14 months apart; and there was only one previous instance of noncompliance with the same standard as is at issue here. After additionally considering the criteria listed in section 17(j) of the Act, 29 U.S.C. 666(i), n11 (the respondent had about 168 employees in 1976 and billings of over $12,000,000 for 1974 and over [*21] $3,400,000 for 1975; serious harm could result from a fall upon the rebar; the respondent apparently lacked good faith in disregarding the hazard for which it had been cited earlier, despite its safety program and its cooperation during the inspection; and the respondent had a relatively good safety record), we assess a penalty of $1,200.

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n11 The section provides:

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

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Accordingly, it is ORDERED that the judge's decision concluding that the respondent committed a serious violation of section 5(a)(2) of the Act by failing to comply with 29 CFR 1926.700(b)(2) is affirmed. The judge's determination that the violation was not repeated is reversed, and the citation for a repeated violation is affirmed. [*22] A penalty of $1,200 is assessed therefor.

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, concurring in part and dissenting in part:

I concur in finding that Early-Massman violated 29 C.F.R. 1926.700(b)(2) for the reasons given by Chairman Cleary. For the reasons stated below I agree with the majority that the violation is properly classified as repeated. A would not reach the question whether the violation should be further categorized as serious in nature, and therefore dissent from that aspect of the majority's disposition.

The test I apply in determining whether a violation is repeated is stated in my separate opinion in Potlatch Corp., 79 SAHRC    , 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979). Under that test, the Secretary establishes a prima facie case that a violation is repected by showing that it is substantially similar to a prior violation, reflected in a final order of the Commission, committed by the same employer. The employer can then defend against the repeated characterization of the violation by showing that it took good faith steps after the first violation to prevent the recurrence of substantially similar violations.

The [*23] standard at issue here is limited to a particular hazard: falling onto unprotected rebar. This and the fact that the description of the violation in the earlier citation is virtually identical to that of the present one establishes that the violations are substantially similar. n1 I therefore conclude that the Secretary established a prima facie case.

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n1 Unlike my colleagues, however, I would not presume that a violation of the same standard an employer violated previously is substantially similar to the earlier violation. Where substantial similarity is not apparent from the nature of the standard, I would require the Secretary to present further evidence to establish this element. Potlatch Corp., supra.

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Because this case was tried before the decision in Potlatch issued, I would normally offer the respondent an opportunity to present further evidence relevant to the defense I announced in Potlatch. See Triple "A" South, Inc., 79 OSAHRC    , 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, [*24] 1979) (separate opinion). Here, however, Early-Massman has asserted that it attempted to protect its employees by requiring them to wear safety belts when working over unprotected rebar. As safety belts are not a permitted means of compliance, Early-Massman, as a matter of law, did not act to prevent the recurrence of substantially similar violations after receiving the first citation. Since the record establishes the precautions Early-Massman took, and since those precautions were inadequate, it is not necessary to offer Early-Massman a further opportunity to present evidence on the point. I therefore conclude that the existing record establishes a repeated violation, and I agree that a $1200 penalty is appropriate for the reasons given by Chairman Clearly.

Because he did not find the violation to be repeated, the Judge was required to determine whether the violation was serious or nonserious in order to classify the violation for penalty assessment purposes. n2 However, since the Commission has found on review that the violation was repeated as alleged, thus classifying the violation for penalty assessment purposes, n3 and since the Secretary did not seek to have the violation [*25] also classified as serious, it is unnecessary for the Commission to determine whether the violation is serious or nonserious. I would simply affirm the citation for repeated violation.

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n2 See, e.g. Toler Excavating Co., 75 OSAHRC 76/C8, 3 BNA OSHC 1420, 1975-76 CCH OSHD P19,875 (No. 2637, 1975). Although Toler and the other cases that the judge cited dealt with situations in which willful violations were alleged and the evidence established violations but not willfulness, the same rationale applies to situations in which a violation is alleged to be repeated but the repeated element is not proven.

n3 Different classifications of violations carry different penalty consequences. A penalty of up to $10,000 may be assessed for a willful or repeated violation. 29 U.S.C. 666(a). A serious violation carries a mandatory penalty of up to $1000. 29 U.S.C. 666(b). A violation "specifically determined not to be of a serious nature," that is, a nonserious violation, is subject to a discretionary penalty of up to $1000. 29 U.S.C. 666(c).

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