ALLIED STRUCTURAL STEEL COMPANY

OSHRC Docket No. 1681

Occupational Safety and Health Review Commission

January 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On October 13, 1972, respondent was issued two citations alleging one serious and four other than serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"). Respondent contested the citation for a serious violation that alleged its non-compliance with the occupational safety and health standard published at 29 CFR 1926.105(a). As to the other than serious violations, respondent contested only that item alleging its failure to comply with the standard appearing at 29 CFR 1926.450(a)(1). In addition to contesting these two alleged violations, respondent contested their respective proposed penalties.

On May 30, 1973, Judge John S. Patton issued his decision and order in this case vacating the citation and proposed penalty for the alleged serious violation. Judge Patton affirmed the other than serious violation and assessed a $100 penalty instead of the $25 penalty proposed by the Secretary.

This case was directed for review by Chairman Moran pursuant to section 12(j) of the Act on [*2] July 3, 1973. The issue on direction for review was: "Whether the Judge can assess a penalty in an amount in excess of that proposed by the Secretary of Labor." In his brief on review the Secretary also maintained that the Judge erred in vacating the citation alleging respondent's non-compliance with the standard at 29 CFR 1926.105(a).

At the time of inspection, respondent was in the process of constructing a bridge across the Mississippi River at Vicksburg, Mississippi. About 75 or 80 people were employed on the project, including iron workers, laborers, painters, sandblasters, blasters, carpenters, cement finishers, and operating engineers. Several of these employees were working on the bridge superstructure approximately 80 feet above a concrete deck. Others were working below the deck which was 100 feet above the river.

On the date of the inspection, the compliance officer observed approximately eight employees working on the bridge without the protection of safety nets, scaffolds, catch platforms, safety belts, or other similar devices. n1 He also observed respondent's employees traveling between elevations on the bridge by sliding down diagonals and holding [*3] onto cables. Neither stairs nor ladders were used.

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n1 See note 2, infra.

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The standard at 29 CFR 1926.450(a)(1) requires the use of ladders to give safe access to all elevations in the absence of permanent or temporary stairways, ramps, or runways. After holding that respondent failed to comply with this standard, Judge Patton noted the ". . . substantial danger in the method employed by respondent's employees in ascending and descending." In view of the fact that respondent's employees were working at such high elevations, the Judge concluded that the $25 penalty was inappropriate. Accordingly, he assessed a $100 penalty. We specifically approve the action of the Judge in assessing a penalty in excess of that proposed by the Secretary.

The Commission, pursuant to section 17(j) of the Act, has the authority to assess all civil penalties provided for in the Act. The Secretary is given the authority, in section 10, to propose penalties to be assessed by the Commission. Once an employer contests a penalty [*4] proposed by the Secretary the Commission acts de novo in assessing a penalty. Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438, 441-442 (8th Cir. 1973).

In the performance of this statutory duty to assess penalties, the Commission has consistently recognized that a penalty it deems appropriate in a given factual situation may well exceed that proposed by the Secretary, See e.g., California Stevedore & Ballast Co., No. 14 (September 4, 1973), petition for review filed, No. 73-3103, 9th Cir., November 1, 1973; Lipsky & Resenthal, No. 690 (May 13, 1974); Dixie Electric, No. 1345 (November 14, 1973); Tacoma Boatbuilding Co., Inc., No. 6 (August 31, 1973); Dreher Pickle Co., No. 48 (February 13, 1973); Baltz Bros. Packing Co., No. 91 (February 8, 1973); Hidden Valley Corp., No. 11 (February 8, 1972).

The Commission's policy on assessment has received express judicial approval. In REA Express, Inc. v. Brennan & O.S.H.R.C., 495 F.2d 822 (2d Cir. 1974), the Court affirmed the Commission's assessment of a $1,000 penalty where the Secretary had proposed a penalty of $900. The Court stated: "We do not deem the fine [*5] excessive and, in any event, it does not constitute an abuse of discretion" 495 F.2d at 827.

Regarding the vacated citation for a serious violation, we hold that the Judge erred in his interpretation of the standard at 29 CFR 1926.105(a) n2 (hereinafter "105(a)"). Judge Patton relied on the Commission's decision in Drake-Williamette Joint Ventures, No. 117 (April 18, 1973) for the interpretation of 105(a). In vacating the citation, Judge Patton correctly applied the Commission's interpretation as set out in Drake-Williamette and stated:

Merely saying that safety nets must be provided when certain other things are impractical is not saying that the other things must be used. The cited standard requires only one thing, the use of safety nets and safety nets to be used only under the conditions set forth.

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n2 The standard at 29 CFR 1926.105(a) provides: Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

[*6]

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After the Judge's decision was issued, however, the Fifth Circuit in Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974), in a factual situation identical to Drake-Williamette and this case has held that the Commission's interpretation of 105(a) was incorrect. Rather, the Court held:

To reiterate, we hold that 29 C.F.R. 1926.105(a) must be read to require an employer to employ either a safety net or one of the other safety devices listed in the regulations, and hence that failure to use any of such devices is a proper predicate for the imposition of sanctions prescribed in the Occupational Safety & Health Act of 1970.

492 F.2d at 501.

Since the Secretary proved that none of the safety devices enumerated in 105(a) were used at respondent's worksite, we find that respondent's non-compliance with the standard was established. Moreover, inasmuch as respondent's employees were working far above a concrete deck and the water surface, we find that there was a substantial probability that death or serious physical harm could result from respondent's non-compliance. [*7] We also find that the Secretary established that the respondent through its supervisory personnel, knew of the presence of the violation. Accordingly, we find that the violation is a serious violation within the meaning of section 17(k) of the Act.

The Secretary proposed a $550 penalty for this serious violation. Considering the penalty assessment criteria in section 17(j) of the Act, we find that a $550 penalty is appropriate. Respondent employed approximately 80 employees. At least eight of these employees were exposed to a potentially fatal hazard. Consequently we deem the gravity of the violation to be extremely high. Respondent did, however, have a good safety training program and no history of previous violations.

Accordingly, it is ORDERED that:

(a) The citation alleging an other than serious violation for non-compliance with 29 CFR 1926.450g (a)(1) and the $100 penalty assessed therefor are affirmed.

(b) The Judge's vacation of the citation alleging a serious violation for failure to comply with 29 CFR 1926.105(a) is reversed.

(c) The citation alleging a serious violation for failure to comply with 29 CFR 1926.105(a) is affirmed and a $550 penalty is assessed [*8] therefor.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE. COMMISSIONER, concurring: I concur in my colleague's disposition. As to the penalty issue, I note that Respondent did not respond to the direction for review, and further note that Complainant specifically acquieces in the penalty increase. Under these circumstances, it appears that both parties are satisfied with the judge's disposition. It should therefore not be disturbed. Cf. Bouma Post Yards,

As to the alleged serious violation, this case arose in the Fifth Circuit and accordingly that Court's decisions are controlling in this case because they are the law of the Circuit. Eight of Respondent's employees were allegedly unprotected against falls contrary to 29 C.F.R. 1926.105(a). In view of Brennan v. OSHRC (Pearl Steel Erection Co. ) 488 F.2d 337 (1937), and Brennan v. OSHRC (Southern Contractors Service) 492 F.2d 498 (1974), and Brennan v. OSHRC (Verne-Woodrow Co.) 494 F.2d 1181 (1974), Complainant has sustained his burden of proof as to three employees, but arguably failed to prove a violation as to [*9] five other employees.

One employee was working on a scaffold, two were on a catwalk provided with guardrails, and two others were on pick boards which could be classified as a scaffold. These facts are sufficient to be within Pearl Steel, supra, and a violation should not be found. Three employees, however, were working on the structural steel framework of the bridge. They were not using any protective equipment. Accordingly, Respondent was in serious violation of the standard in the Fifth Circuit. Southern Contractors, supra, and Verne-Woodrow, supra. For that reason, I concur with my colleague's disposition.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The only issue upon which this case was directed for review is correctly stated in the lead opinion and it is error, in my judgment, to consider other issues without any opportunity for the parties to submit briefs thereon.

My views on the issue on review have been expressed in several opinions including Secretary v. Luther Marvin Robbins, 5 OSAHRC 719 (1973), Secretary v. California Stevedore and Ballast, 4 OSAHRC 642 (1973), and Secretary v. M.A. Swatek and Co., 2 OSAHRC 1276 (1973). I reaffirm [*10] those views here: it is improper for this tribunal to assess a penalty in any amount which exceeds the amount proposed by the Secretary of Labor.

Nor do I find that respondent's failure to respond to the direction for review can be rightfully interpreted as any indication that it is "satisfied" with the assessment of the penalty. I concurred with the disposition in the Bouma Post Yards case, supra, because of the facts of that case, but I warned against applying a blanket assumption of acquiescence in all situations.

The respondent contested the amount of the penalty proposed by the Secretary. That amount has now been substantially increased. Why should we assume that respondent has abandoned the contest just because it has not once again asserted its unhappiness with the penalty? It is strange indeed that an employer who was unhappy with a smaller penalty would be "satisfied" with a larger one. It is much more likely that respondent is hesitant to reassert its contest because the last time it did so its position got worse. Why should we expect it to do so again? Respondent has probably given up on a Commission that seems to have forgotten that Congress intended it [*11] to be an independent adjudicatory tribunal, 29 U.S.C. 651(b)(3), not the chief enforcer of the Act.

It is my guess that having been burned once when he filed a paper with this Commission in his effort to obtain relief, the respondent would decline steadfastly to file any further prayers for relief with this tribunal.

"Oh, well," said Mr. Hennessy, "we are as th' Lord made us."

"No." said Mr. Dooley, "lave us be fair. Lave us take some iv th' blame oursilves." n3

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n3 Finley Peter Dunne, Observations by Mr. Dooley [1902]. Reform Administration.

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[The Judge's decision referred to herein follows]

PATTON, JUDGE: This case is before the Occupational Safety and Health Review Commission on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus Allied Structural Steel Company, hereinafter referred to as respondent. The case was heard before the undersigned Judge on February 28, 1973, at Vicksburg, Mississippi. Mr. Ellis V. Cruse appeared [*12] as attorney for the complainant and Mr. Dennis L. Stoddard appeared as counsel for the respondent. It was alleged in the complaint that the respondent is in violation of section 5(a)(2) of the Occupational Safety and Health Act and Occupational Safety and Health standards 29 CFR 1926.105(a) and 29 CFR 1926.450(a)(1).

LAW AND ISSUES OF THE CASE

Standard 29 CFR 1926.105(a) provides as follows:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts are impractical.

Standard 29 CFR 1926.450(a)(1) provides as follows:

Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

It is the position of the complainant that respondent failed to provide safety nets or safety lines or safety belts for its employees working more than 25 feet above the ground or other surfaces and that ladders, scaffolds, catch platforms or temporary floors were impracticable. It is the position of the respondent that safety [*13] belts would have been practicable; that safety belts were provided the employees whether the employees at all times wore them or not; and that the employees were instructed to wear the safety belts. It is the position of the respondent that under these facts the respondent has not violated the Act. It is the further position of the respondent that said standard 29 CFR 1926.105(a) does not require the use of any device other than safety nets and that nets are required only in those instances in which said other devices are impractical. It is the position of the respondent that even if none of said safety devices were used, said standard relates only to the necessity of using nets when other devices could not be used and that since safety belts could have been used, the requirement to use nets under said section does not exist.

It is the complainant's position that ladders were not used at all required places and that standard 29 CFR 1926.450(a)(1) was, therefore, violated. It is the position of the respondent that ladders were available for the employees to use and the employees were instructed to use ladders and if ladders were not used, the respondent is not responsible [*14] for the failure of employees to use them.

FACTS OF THE CASE

It was testified by Mr. Carl T. Frazier, Compliance Officer of the complainant, that he attended Southern Methodist University, School of Engineering, completing four years of a five year course, but not securing a degree. He majored in civil engineering. He was employed by the Corps of Engineers, Nashville, Tennessee District as a Safety Engineer, and became a safety inspector. During war time construction he was district safety engineer for the Nashville Tennessee Corps. He subsequently worked for private industry, returned to Government as Department of Labor's construction safety specialist and has been with the Department of Labor since 1964. He now is a compliance officer, making inspections under the Occupational Safety and Health Act (TR 4, 5, 6). Mr. Frazier testified that on August 22, 1972, he inspected the construction project of the respondent in the building of the bridge across the Mississippi River at Vicksburg, Mississippi. About 75 or 80 people were employed, including iron workers, operating engineers, laborers, cement finishers, carpenters. General Manager Cooper of the respondent accompanied [*15] him on the inspection. The witness stated that two painters were at the top of a super structure over Pier W-1, about 80 feet above the deck. He stated the deck was about 100 feet above the water, and that six painters were working. Some were painting approximately 60 feet above the deck. There were two sandblasters below the deck working about 100 feet above the water. He stated there were no scaffolds, catch platforms or similar devices in use where said people were working. None of the employees were wearing safety belts. He expressed the opinion that there was a good possibility an employee might fall and that he would fall 80 or more feet to a cement concrete deck or possibly could fall 182 feet by missing the deck and going into the water. He expressed the opinion that safety belts would have been a practical protection against a fall (TR 8, 9, 10).

The witness further stated that a scaffold was in the process of being lowered to a level position. No ladders were available in the area. There was a ladder on the other side of the bridge. The employees reached the height at which they worked by climbing diagonally. He stated they were at an angle of 45 to 60 degrees. [*16] The men would slide on cables and would come down the diagonal. He stated that eight employees were affected by the alleged violation. He stated that two men were at the pier, one was at the top cord, the other was on a scaffold without a lanyard, or safety belt. He did not know whether the safety belts were available and simply were not worn (TR 16-19, 25, 26). He stated that it was practical for the employees to wear safety belts. Two men were beneath the bridge deck (TR 30). He stated that some were on the thick board on two steel cables painting. They were not wearing safety belts (TR 30). He stated that safety belts were not practicable without an independent cable for the life line which was not present at that time. He testified, however, that such could be provided (TR 33). The cable the pick board was resting on was about 7/8-inch cable which was sufficient for the weight required. There was quite a load on it. He testified there was an intention to keep it taunt enough of employees to work on. It was a substantial cable (TR 33). He testified that for a lanyard to be a life line, it has to be supported by a means independent of the support of the [*17] platform or scaffold on which the man is working (TR 34). He was of the opinion it was a great deal less likely to break than 3/4-inch rope because it was streached from pier to pier with the sag out. He stated you could easily overload a 7/8-inch line by tension. The witness stated that use of a life line and safety belts with people under the bridge would be practical (TR 37). Mr. Cooper agreed to run a separate cable for a life line (TR 37). Mr. Frazier testified that two more men were painting about sixty feet above the road deck. They were on the bridge members. They could have tied themselves off with the pipeline or safety belts (TR 38, 39).

Mr. John P. Conn, who had been employed by respondent on the bridge project as a carpenter, stated he also had served as union steward. He saw employees working without safety belts or safety lines although such belts were provided. The men involved in such activities were painters, iron workers and all other crafts (TR 75, 76). Mr. Cordell A. Cooper, superintendent ont he bridge job responsible for safety procedures as well as other duties, stated that safety belts were provided for all employees (TR 58). This was confirmed [*18] by the testimony of Mr. Conn (TR 74). Mr. Conn also stated that the employees were provided time to get safety equipment (Tr 78). Mr. Cooper testified that there were over 100 safety equipment (TR 78). Mr. Cooper testified that there were over 100 safety belts (TR 59). He testified that all eight men could have used safety belts, that it was practical. Mr. David G. Shelin testified that approximately 200 safety belts were provided and furhter testified the company had on the job, 24 nets, 35 feet by 85 feet in dimension (TR 70, 71). He stated that $11,000 had been spent for safety equipment, including safety belts, lanyards, hard nats, goggles, safety glasses, etc. (TR 71).

Both Mr. Cooper and Mr. Shelin testified that there were regular safety meetings held. Mr. Cooper stated that such meetings were held on Mondays, lasting five to twenty-five minutes, that safety material was presented and occasionally there was open discussion. There also were quarterly meetings and he insisted that men used safety equipment (TR 59, 60, 72). Mr. Shelin testified that material to be used was sent to superintendents of the company on a regular basis and the employees were requested [*19] to use this material, the superintendents being asked to advise the employees of proper safety precautions to be taken (TR 72).

Mr. Frazier testified that ladders were not in many instances, used, but ladders were available which the men could have secured (TR 46). Mr. Cooper testified that a spand was 425 feet long, that at each end of the spand there was a permanent ladder (TR 61, 62). The furtherest that an employee could get from a ladder was, therefore, 220 feet and generally they were closer (TR 62). The men were authorized to use the permanent ladders (TR 62, 63). He pointed out that a ladder was not practical to use from moveable scaffolds to the top cords but that safety belts could be used (TR 63). Safety belts could protect a man while moving from the scaffold to the top cord and this was done. He stated that employees used safety belts but he would not say that they used them 100 per cent of the time. There was a pretty good walkway at the top of the cord and a safety line could not be used at that point (TR 65). He stated that he had observed men sliding down the diagonals (TR 66). He remembered men not sliding down from the cables but holding on to the cable [*20] and stepping on to the hoist and then on to the scaffold but not sliding any great distance down the cable, sliding only five feet (TR 66). He stated that if an employee was moving he could not tie himself off when he got there but he could tie himself off by attaching this device to the structure or looping a safety line or lanyard around the member when he was working.

EVALUATION OF THE EVIDENCE

The evidence would appear to clearly establish that the respondent did not provide nets at all places where employees worked at an altitude in excess of 25 feet. It also is apparent that an employee falling from approximately 80 feet above the deck and 180 feet above the water would, in all likelihood, fall to his death. There would appear to be little question that employees in a number of instances did not have safety belts and none of the other required protective devices were provided. A careful reading, however, of standard 29 CFR 1926.105(a) establishes that the only thing required by said section is the requirement that safety nets be used. The first words of said subsection provide "Safety nets shall be provided" and no place in said section does it say that ladders, [*21] scaffolds, catch platforms, temporary floors, safety lines or safety belts shall be provided. Safety nets shall be provided where two situations occur, workmen are working more than 25 feet above ground or water and the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts are impracticable. It is not contested that the employees were working more than 25 feet above ground or water surface. The remaining question is whether the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts were impracticable. The testimony of all witnesses appears to establish that safety belts could have been worn, in all situations except when employees were walking across the catwalks. The catwalk was provided with a railing. This Judge is of the opinion that the catwalk would meet the definition of temporary floors and, therefore, all of the employees could, under all circumstances, have either used temporary floors or safety belts. In view of the fact that the catwalk had guardrails and the employees did not work outside the guardrails the evidence does not establish danger of fall in walking across same. Mr. Frazier, Mr. [*22] Cooper and Mr. Conn all testified to the fact that safety belts could have been used. Mr. Frazier and Mr. Conn testified that in some instances safety belts were not used although the respondent's witnesses testified that over 200 safety belts were provided and the employees had been instructed to use the belts. If the standard on which the complaint is based required the use of safety belts, it was the obligation of the respondent to require its employees to use these belts and it is not sufficient for the respondent to say that the belts were provided and the respondents were instructed to wear them and these instructions were not enforced. On the other hand, the decision can only be based on the standard set forth in the citation and in the complaint. No standard requiring the use of safety belts has been set forth in either the citation or the complaint. The fact that such a standard may exist does not entitle the complainant to a decision in its favor unless such standard is alleged. The purpose of pleadings is to put the parties on notice of the issues that must be met. If a standard is not alleged it cannot be considered. Merely saying that safety nets must [*23] be provided when certain other things are impractical is not saying that the other things must be used. The cited standard requires only one thing, the use of safety nets and safety nets to be used only under the conditions set forth. This section cannot be expanded nor can the language be read in to make it that safety belts shall be provided or ladders, scaffolds, safety belts, etc., shall be provided. The only words with the clause "shall be provided" are "safety nets." In the case of Drake-Williamette Joint Ventures,

The Complainant would have us construe the standard as requiring the provision and the use of safety nets or any of the other devices named in the standard when construction workplaces are more than 25 feet above ground. That is, the Complainant would have us rewrite his standard such that it might read as follows:

Safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts shall be provided and used when workplaces are more than 25 feet above the ground or water surfaces, or other surfaces.

We shall not follow his suggestion. [*24] n2

The language of the standard is clear and unambiguous. Accordingly, it requires what it says it requires. Safety nets are to be provided when construction workplaces are more than 25 feet above a surface and '. . . the use of ladders . . . or safety belts' is impractical.

Clearly, a violation of the standard can only be concluded on a record wherein the evidence shows (1) that it was impractical to use devices such as safety belts, (2) the construction workplace was 25 or more feet above ground or an other surface, and (3) safety nets were not provided.

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n2 It is apparent upon a review of 29 C.F.R. Part 1926 and from the Complainant's arguments in this case that there is a need for a general standard of the type suggested. Accordingly, the Complainant should use his authority under section 6(b) of the Act to fill the void.

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It is true that Mr. Frazier testified that at certain locations it would be necessary for another cable to have been placed for there to be something for them to tie safety belts [*25] onto. The evidence further shows, however, that this could have been done and that Mr. Cooper had stated to Mr. Frazier at the time of inspection that it would be done. It therefore cannot be said that safety belts were impractical.

In the opinion of the undersigned Judge, the alleged violation of standard 29 CFR 1926.105 cannot be sustained.

It would appear, however, that violation of standard 29 CFR 1926.450(a)(1) has been proven. The fact that some ladders were made available does not satisfy the requirement that ladders must be made available and used to enable people to go to any location in safety. Mr. Frazier testified that employees reached the height that they worked by climbing diagonally at 45 to 60 degree angles and that the men would slide on the cables. Mr. Cooper stated that he had seen men sliding down the diagonals but they only slid about five feet. They would hold on to the cable and then step on to the hoist and then on to the scaffold. The method used would not appear in either event to be as safe as the employee would have been in climbing a ladder.

The fact that ladders were provided that the employees could use does not free the respondent from responsibility [*26] for the fact that the employees were not using ladders in the way that the standard requires. It will be noted, as above stated, that Mr. Cooper testified that he had seen employees using other means of elevating themselves and coming down from the area in which they were working. This procedure was apparently not isolated. The respondent did not take adequate steps to stop this practice although having knowledge the standard was being violated. A company is required by the law to see that safe conditions are followed. It is not adequate to merely provide safety equipment and let the employee fail to use it. It would, therefore, appear that said standard has been violated by the respondent.

There would appear to be substantial danger in the method employed by respondent's employees in ascending and descending. The allegations of the complaint, however, allege only a non-serious violation and this Judge has no authority to hold that respondent has been guilty of a more substantial violation than that alleged. It would appear that under the circumstances of this case, a penalty of $25.00 is inadequate even for a non-serious violation. Giving due allowance for past [*27] history and good faith and considering the size of respondent and the gravity of the violation, a penalty in the amount of $100.00 would be proper. This Judge, therefore, makes the following findings of fact.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and doing business, among other places, at the I-20 Mississippi River Bridge, Vicksburg, Mississippi, and the portion of Louisiana immediately adjacent thereto, where respondent engaged at all times relevant to this cause in the construction and erection of a bridge across said river.

2. Respondent employed approximately 70 to 80 employees of various crafts working on said bridge.

3. On August 22, 1972, respondent did not provide safety nets at all places at which employees were working at an elevation of in excess of 25 feet above the ground or water. On August 22, 1972, at least eight employees were working at an elevation extending 80 feet above the deck and in excess of 180 feet above the Mississippi River.

4. The respondent provided in excess of 200 safety belts, but safety belts were not always worn.

5. Safety belts could have been worn at all times employees were at said elevation [*28] except when employees went across a temporary platform called a catwalk.

6. Said catwalk had a guardrail throughout its length.

7. At each end of the span, portable ladders were available which the employees could have availed themselves of.

8. Employees often climbed angles and slid down diagonals rather than use ladders.

9. The superintendent of the project had knowledge of the fact that ladders were not being used.

10. There was danger of employees failing and severely injuring themselves by not using the portable ladders.

CONCLUSIONS OF LAW

1. The respondent, in erecting said bridge across the Mississippi River, was engaged in construction affecting interstate commerce and said company is governed by the Act.

2. Standard 29 CFR 1926.105(a) only requires the erection of safety nets where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are impractical.

3. The respondent has not violated standard 29 CFR 1926.105(a).

4. The respondent is in violation of standard 29 CFR 1926.450(a)(1).

5. This Judge does not have the authority to find a serious violation if only a non-serious violation was alleged.

6. The violation [*29] of section 29 CFR 1926.450(a)(1) is, therefore, found to be a non-serious violation.

7. A penalty in the amount of $100.00 should be assessed for such violation.

ORDER

It is, therefore, Ordered that:

The citation alleging violation of standard 29 CFR 1926.105(a) be and the same hereby is dismissed.

The respondent be and hereby is found to be in violation of standard 29 CFR 1926.450(a)(1).

The penalty in the amount of $100.00 is assessed for violation of standard 29 CFR 1926.450(a)(1).

The abatement date as set in the citation alleging violation of standard 29 CFR 1926.450(a)(1) is approved.