LASTER AND FINGERET, INC.

OSHRC Docket No. 1715

Occupational Safety and Health Review Commission

February 4, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: The question involved in this matter is whether penalties should be assessed for eight admitted violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq; hereinafter "the Act"). n1 Complainant proposed an aggregate penalty of $2,180. Judge Henry K. Osterman, however, refused to assess penalties because in his view Respondent expended funds to abate a non-violative condition. For the reasons set forth, we assess penalties and therefore affirm his decision only to the extent it is consistent herewith.

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n1 This case originally was consolidated for hearing with Valente Contracting Corp., OSHRC Dkt. No. 1717, Alcap Electrical Corp., OSHRC Dkt. No. 1722, Grodsky Plumbing Co., OSHRC Dkt. No. 1727, and Delta Erection Co., OSHRC Dkt. No. 1757. My direction for review was limited to this case, in effect severing it from the others. Similarly, Chairman Moran directed review of the Alcap case. The remaining three cases have become final orders of the Commission pursuant to section 12(j) of the Act. 29 U.S.C. 661(c).

[*2]

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The relevant facts are undisputed. Respondent, a general contractor at a construction site in Westbury, New York, was cited for three serious and five non-serious violations. n2 Respondent quickly abated all alleged violations at a cost of approximately $9,000. The expenditure included $3,000 to correct an alleged perimeter guarding violation on the roof of the building under construction. The allegation had been made in combination with other allegations concerning unguarded floor perimeters. The complaint was later amended so as to delete the allegations relating to the roof. n3 Since the $3,000 thus "unnecessarily" expended by Respondent exceeded the total proposed penalty Judge Osterman concluded that Respondent could not equitably be required to pay a penalty.

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n2 The serious violations were based on 29 C.F.R. 1926.500(e)(1) (stair railings); 1926.500(b)(1) (floor openings); and 1926.500(d)(1) (perimeter guarding). The non-serious violations were based on 29 C.F.R. 1926.500(c)(1); 1926.500(d)(2); 1926.350(a)(9); 1926.450(a)(9); and 1926.23.

n3 The withdrawal apparently was based on the decision of an Administrative Law Judge holding that 29 C.F.R. 1926.500(d)(1) did not apply to roofs. Decisions so holding were subsequently reversed, See, e.g., S. D. Mullins, OSHRC Dkt. No. 364, BNA 1 O.S.H.C. 1364, CCH E.S.H.G. para. 16,803, petition for review filed No. 73-3705, 5th Cir., Nov. 14, 1973.

[*3]

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In view of the provisions of section 17(b) which mandate the assessment of civil penalties for serious violations, the judge's decision to the contrary was erroneous as a matter of law. Hodgdon Shingle & Shake Co., No. 1315, BNA 2 O.S.H.C. 1215, CCH E.S.H.G. para. 18,722 (Rev. Com'n., 1974). Moreover, we do not think an expenditure made to abate a hazardous condition becomes an "unnecessary" expenditure merely because the parties to a safety and health proceeding decide that a cited standard is inapplicable to the facts. Whatever their reason for making that decision, it does not in this case change the fact that an admitted hazardous condition existed. Abatement of the condition was necessary for the safety of persons affected thereby and we do not, therefore, consider the expenditure of funds for such abatement to be "unnecessary."

But such an expenditure may be highly relevant to the employer's good faith. In this case, the Respondent not only abated the one condition, it voluntarily abated all alleged violative conditions even though it was under no obligation to do so in view of the fact [*4] that it filed a notice of contest. For this reason, we believe Labor's proposed penalties for the serious violations were excessive. On the other hand, token penalties are inappropriate in view of the gravity of the violations. The lack of stair railings presented a falling hazard of 25 feet, the lack of perimeter guarding -- 42 feet, and the floor openings -- 45 feet. Having also considered Respondent's small size (it grossed $2,500,000 in 1972) and its lack of a previous history, we believe it should be assessed $200 per serious violation. Having considered the same factors of good faith, size, and history with respect to the non-serious violations and nothing the low gravity, we believe the proposed penalties aggregating $80 are appropriate.

Accordingly, the judge's order is modified to assess an aggregate penalty of $680 for the violations determined thereby and is affirmed as modified. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case.

I would arrive at the same penalty assessment as my colleague on the basis of the facts comprising the good faith of the employer that are recited in the lead opinion. [*5] I do not agree that the employer is a small business.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This decision simply represents the subjective opinion of two members of this Commission as to the amount of money the respondent should be assessed as a penalty. It is my view that because penalty assessment is a discretionary matter, the amount determined by the trial judge ought to stand unless there is an abuse of discretion. There was no such abuse here. Judge Osterman based his assessment on valid reasoning. The amount he decided upon did not exceed the amount of complainant's proposed penalty nor the statutory limits of the law. 29 U.S.C. 666.

In Beall Construction Company v. OSAHRC, 507 F.2d 1041 (8th Cir., 1974), the Court stated that:

The assessment of penalties . . . is not a factual finding but the exercise of a discretionary grant of power.

It makes no sense whatsoever to have two levels of government each giving their own view on such a subjective matter, particularly since the amount of penalty assessment in any individual case has never been shown to effect the ultimate objective of this Act. Judge Osterman's opinion on this matter is just as good as that [*6] of the members of this Commission.

The upper level of any adjudicatory system ought to confine itself to matters of law, not the substitution of its opinion for the opinion of the trial judge. The continued insistence of Commission members upon this type of exercise gives added support the view that due process under this Act would be preserved, decisions could be expedited, and a considerable saving in tax dollars achieved if the level of adjudication represented by the members of this Commission were eliminated.

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE: These are proceedings initiated pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq, (hereafter called the Act) to contest Citations and Notices of Proposed Penalties issued to each Respondent on October 27, 1972, by the Secretary of Labor pursuant to Secton 9(a) of the Act. By order of the Commission dated February 9, 1973, the above-captioned matters were consolidated for trial on March 13, 1973, in New York City.

Each of the five Respondent's were charged with three identical serious violations and four idential non-serious violations as [*7] follows:

Regulations -- Abatement date -- Proposed penalties n1

29 C.F.R. 1926.500(d)(1) -- [Failure to provide perimeter guarding on all opensided floors] -- 5 days -- $600.00.

29 CFR 1926.500(e)(1) -- [Failure to provide stair railings for stairways with more than 4 risers] -- 5 days -- $600.00.

29 CFR 1926.500(b)(1), [Failure to provide railings around floor openings] -- 5 days -- $600.00.

29 CFR 1926.500(c)(1), [Failure to provide five extinguishers] -- 5 days -- None.

29 CFR 1926.500(d)(2), [Failure to provide railings on two runways leading to 1st floor of building] -- 5 days -- $30.00.

29 CFR 1926.350(a)(9), [Failure to secure compressed gas cylingers in upright position] -- Immediately -- $40.00.

29 CFR 1926.450(a)(9), [Failure to provide ladder with side rails extending at least 3 feet above landing] -- 5 days -- None.

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n1 The proposed penalties for Laster and Fingeret, prime contractor, was fixed at $700.00 for each of the three serious violations as well as increased amounts for the non-serious violations. (See Findings of Fact infra )

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In addition, Laster and Fingeret, Docket #1715; Valente Contracting Corporation, Docket #1717; Grodsky Plumbing Co., Inc., Docket #1727; and Delta Erection Corporation, Docket #1757 where each charged with the non-serious violation of 29 CFR 1926.23 [failure to provide first-aid services, no penalty propsed]. Grodsky Plumbing Co., Inc., Docket #1727 was also charged with two other non-serious violations, 29 CFR 1926.451(a)(4) and 29 CFR 1926.451(a)(13) [failure to provide guarding at open sides of scaffold work platform and failure to provide safe access to the said scaffold work platform.]

Notices of Contest were timely filed by each of the Respondents. Thereafter Complaints and Answers were filed by the Secretary and each of the Respondents herein.

At the hearing it was stipulated by each party to the proceeding (a) that the violations charged in the Citations issued to each Respondent did in fact exist on October 20, 1972, the date of the inspection (2) that [with the exception of Alcap and Delta employees] employees of each Respondent were exposed to the hazards created by the violations (3) that all Respondents on [*9] the date of inspection were employers engaged in a business affecting commerce. n2

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n2 Alcap did not stipulate this item but did admit in its Answer that it is engaged in interstate commerce. Answer: (Answer Par. 6).

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It was also stipulated that paragraph 5 of each Complaint would be amended to omit all reference to the open-side roof of the building in question, and that this alleged violation of 29 CFR 1926.500(d)(1) would be limited to the first, second, and third floors of the building.

The issues raised by Respondents were (1) whether or not the three serious violations charged against each Respondent were in fact "serious" violations within the meaning of Section 17(k) of the Act (2) whether employees of Alcap Electrical Company and employees of the Delta Erection Corp., were, in fact, exposed to the hazards as charged by the Secretary (3) whether the penalties proposed for the alleged violations are appropriate and consistent with the standards established by Sections 17(b) and (j) of the Act for the assessment [*10] of proposed penalties.

On December 18, 1972, prior to hearing, Alcap Electrical Corp., filed a motion to dismiss the complaint for lack of jurisdiction on the ground that said complaint does not allege that the worksite was under the control of this Respondent, and the further ground that the Notice of Proposed Penalty was not issued by an authorized individual as required by Section 10 of the Act. n3 Alcap's motion also sought to require the Secretary to state with greater particularity the basis for the proposed penalties and, in addition, requested an extension of time to answer the Complaint. By Order dated February 22, 1973, additional time to answer was granted, the balance of Alcap's motion was denied without prejudice to Respondent's right to renew said Motion at the hearing to follow.

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n3 Section 10 provides that "the Secretary . . . should within a reasonable time . . . notify the employer by certified mail of the penalty."

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Alcap's motion to dismiss, insofar as it raises the question of worksite [*11] control by Alcap, is denied on the authority of Capitol Fire Protection Company, Docket No. 301, November 3, 1972, affirmed by Commission December 6, 1972. n4 Insofar as the motion relates to the issuance of the Notice of Proposed Penalty by the Area Director, rather than the Secretary of Labor, the motion is also denied. Section (2)(g) of the Act authorizes the Secretary of Labor to prescribe all rules and regulations deemed necessary to carry out his responsibilities under the Act. By regulations effective September 4, 1971, the Secretary delegated to the Area Director the power to determine the amount of any penalty proposed for violation of the standards in accordance with Section 17 of the Act (29 CFR 1903.15(b). Obviously, in view of the volume of inspections made and citations issued annually, the Secretary's delegation of this power is both reasonable and necessary for the functioning of his office. The remaining items of relief sought in Alcap's motion are now moot and need not be further considered here.

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n4 See also: Frohlick Crane Service, Docket #890, November 20, 1972; Jaffie Contracting Co., Inc., Docket #610, January 10, 1973; and Dixie Electric Inc., Docket #1345, January 18, 1973.

[*12]

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With respect to each to the violations charged, both serious and non-serious, Respondents, with two exceptions, have conceded that said violations existed at the time of inspection and that their respective employees were exposed to the hazards created by the violations. The two exceptions are Delta Erection Corporation and Alcap Electrical Corporation both of which, although conceding that violations existed, deny that their employees were exposed to the hazards thus created. The record, however, discloses that both Delta employees and Alcap employees were in fact exposed to some, if not all, of the hazards created by the violations alleged in the Citations.

Concerning Delta, the Compliance Officer, Mr. Leonard A. Cobb, testified that he observed employees of Delta cutting holes in the metal flooring on the second level of the building and that several other unguarded holes were observed in the area. Exhibit C-10 supports this testimony. Cobb also testified that in order to get to the second level Delta employees would have had to use a staircase which lacked handrails (Exh. C-4) and [*13] were exposed to those hazards which affected all employees entering or leaving the structure. Cobb's testimony regarding the exposure of Delta's men to the danger of falling off the edges of the building is less persuasive. He did not know whether their work required these employees to approach the outside perimeters of the building, and he estimated that the employees he observed were about 50 feet away from the perimeter.

On the question of liability under the Act this Commission has consistently taken the position that a subcontractor is liable, along with the general contractor, where employees of the former have been exposed to hazardous conditions not of their own creation, and for which the subcontractor has no contractual responsibility. It is moreover immaterial where, as here, the prime contractor has accepted sole responsibility for the alleged violations (see submission of Laster and Fingeret dated March 6, 1973 and Proposed Findings of Fact), Secretary of Labor v. Jaffie Contracting Co., Inc., Docket No. 160; Secretary of Labor v. Fireproof Products Co. Inc., Docket No. 674; Secretary of Labor v. Ellison Electric, Docket No. 412; Secretary of [*14] Labor v. Howard P. Foley Co., Docket No. 1615; Secretary of Labor v. Barnaby Concrete Corp., Docket No. 674. Where, however, the subcontractor's employees have not been exposed to a hazard created by the prime contractor no liability attaches to the former under the Act, Secretary of Labor v. C.N. Harrison Construction Co., Docket No. 413.

With respect to the penalties proposed by the Secretary of Labor the Respondents argue that the formula applied by the compliance officer and the area director insofar as it relates to the proposed penalties for the three serious violations in inconsistent with the provisions of Section 17(b) of the Act which provides for a penalty of "up to $1000.00 for each such violation." They correctly point out that under the formula established by the Secretary of Labor in his Compliance Operations Manual the penalty for a serious violation can never be less than $500.00 even though the Secretary in assessing each of the proposed penalties has given due consideration to the four elements outlined in Section 17(j) of the Act, whereas under the language of Section 17(b) a lesser amount could be assessed. I believe there is [*15] some merit to this argument.

I find that the Secretary's formula which does not permit a penalty of less than $500.00 for each serious violation lacks the flexibility contemplated by the statute; that it results in excessive penalties; and, as applied to the subcontractors herein, is not appropriate in the circumstances of this particular case. The sole remedy available to the subcontractor in the situation described above is to pull his men off the job and thereby risk future loss of business, boycott, or litigation. He cannot because of union restrictions correct violations outside of his particular field of operations. Conceding that the subcontractors involved here were technical violators it is nevertheless my view that "the penalty should fit the crime" and should not be determined by any hard and fast formula as promulgated in the manual referred to above.

With respect to Laster and Fingeret, the prime contractor, the record shows that this Respondent expended approximately $3,000.00 to correct the alleged violation relating to the roof of the building and that this alleged violation was subsequently withdrawn by the counsel for the Secretary. The funds thus expended unnecessarily [*16] by this Respondent exceeds by approximately $800.00 the total amount of the proposed penalties. In my opinion equity requires that in these circumstances this Respondent be relieved of the additional obligation to pay the penalties assessed, and that the Secretary should be required to refund to this Respondent any monies already received in payment of said penalties.

FINDINGS OF FACT

LASTER AND FINGERET, INC.

1. Respondent Laster and Fingeret, Inc. is, and at all material times was, a corporation organized and existing under the laws of the State of New York doing business in the construction trade as a general contractor. Respondent handles products which move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties [*17] are as follows:

Serious violations: -- Abatement dates -- Proposed penalties

29 CFR 1926.500(d)(1) -- 5 days -- $700.00

29 CFR 1926.500(e)(1) -- 5 days -- $700.00

29 CFR 1926.500(b)(1) -- 5 days -- $700.00

Nonserious violations:

29 CFR 1926.150(c)(1) -- 5 days -- None

29 CFR 1926.500(d)(2) -- 5 days -- $35.00

29 CFR 1926.350(a)(9) -- Immediately -- $45.00

29 CFR 1926.450(a)(9) -- 5 days -- None

29 CFR 1926.23 -- 5 days -- None

5. All of the said violations were abated on about October 27, 1972.

6. Subsequent to the issuance of the said Citations and prior to the hearing on March 13, 1973 Respondent expended approximately $3,000.00 to correct violations relating to the roof of the building under construction. Respondent has also paid to the Secretary of Labor the penalties proposed by the Secretary.

7. At the hearing counsel for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

8. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the building, existed on [*18] the date of inspection.

9. Respondent further conceded that its employees had been exposed to the hazards created by said violations.

10. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations.

11. In arriving at the proposed penalties for the non-serious violations the Secretary considered those elements which are outlined in Section 17(j) of the Act.

VALENTE CONTRACTING CORPORATION

1. Respondent Valente Contracting Corporation is, and at all material times was, a corporation organized and existing under the laws of the State of New York doing business as a cement contractor. Respondent handles products which move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed [*19] by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties are as follows:

Serious violations: -- Abatement dates -- Proposed penalties

29 CFR 1926.500(d)(1) -- 5 days -- $600.00

29 CFR 1926.500(e)(1) -- 5 days -- $600.00

29 CFR 1926.500(b)(1) -- 5 days -- $600.00

Non-serious violations:

29 CFR 1926.150(c)(1) -- 5 days -- None

29 CFR 1926.500(d)(2) -- 5 days -- $30.00

29 CFR 1926.350(a)(9) -- Immediately -- $40.00

29 CFR 1926.450(a)(9) -- 5 days -- None

29 CFR 1926.23 -- 5 days -- None

5. All of the said violations were abated on about October 27, 1972.

6. At the hearing counsel for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

7. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the building, existed on the date of inspection.

8. Respondent further conceded that its employees had been exposed to the [*20] hazards created by said violations.

9. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations. I find that because the formula applied by the Secretary of Labor lacks the flexibility contemplated by Section 17(b) of the Act the resulting penalties proposed for those three serious violations are excessive and insppropriate under the circumstances herein.

10. In arriving at the proposed penalties for the non-serious violations the Secretary considered those elements of which are outlined in Section 17(j) of the Act.

ALCAP ELECTRICAL CORPORATION

1. Respondent Alcap Electrical Corporation is, and at all material time was, a corporation organized and existing under the laws of the State of New York. Respondent does business as an electrical contractor and handles products which move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County [*21] Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties are as follows:

Serious violations: -- Abatement dates -- Proposed penalties

29 CFR 1926.500(d)(1) -- 5 days -- $600.00

29 CFR 1926.500(e)(1) -- 5 days -- $600.00

29 CFR 1926.500(b)(1) -- 5 days -- $600.00

Non-serious violations:

29 CFR 1926.150(c)(1) -- 5 days -- None

29 CFR 1926.500(d)(2) -- 5 days -- $30.00

29 CFR 1926.350(a)(9) -- Immediately -- $40.00

29 CFR 1926.450(a)(9) -- 5 days -- None

5. All of the said violations were abated on about October 27, 1972.

6. At the hearing counsel for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

7. Respondent has conceded on the record that all violations, with the exception of those relating to the roof [*22] of the building, existed on the date of inspection.

8. Respondent's employees were exposed to all of the hazards created by the violations which existed on October 20, 1972.

9. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations. I find that because the formula applied by the Secretary of Labor lacks the flexibility contemplated by Section 17(b) of the Act the resulting penalties proposed for those three serious violations are excessive and inappropriate under the circumstances herein.

10. In arriving at the proposed penalties for the nonserious violations the Secretary considered those elements of which are outlined in Section 17(j) of the Act.

GRODSKY PLUMBING COMPANY, INC.

1. Respondent, Grodsky Plumbing Company, Inc. is, and at all material time was, a corporation organized and existing under the laws of the State of New York doing business as a plumbing contractor. Respondent handles products which [*23] move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties are as follows:

Serious violations: -- Abatement dates -- Proposed penalties

29 CFR 1926.500(d)(1) -- 5 days -- $600.00

29 CFR 1926.500(e)(1) -- 5 days -- $600.00

29 CFR 1926.500(b)(1) -- 5 days, -- $600.00

Non-serious Violations:

29 CFR 1926.150(c)(1) -- 5 days -- None

29 CFR 1926.500(d)(2) -- 5 days -- $30.00

29 CFR 1926.350(a)(9) -- Immediately -- $40.00

29 CFR 1926.450(a)(9) -- 5 days -- None

29 CFR 1926.23 -- 5 days -- None

29 CFR 1926.451(a)(4) -- Immediately -- $35.00

29 CFR 1926.451(a)(13) -- Immediately -- None

5. All of the said violations were abated on about October 27, 1972.

6. At the hearing counsel for the Secretary of Labor [*24] withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

7. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the building, existed on the date of inspection.

8. Respondent further conceded that its employees had been exposed to the hazards created by said violations.

9. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations. I find that because the formula applied by the Secretary of Labor lacks the flexibility contemplated by Section 17(b) of the Act the resulting penalties proposed for those three serious violations are excessive and inappropriate under the circumstances herein.

10. In arriving at the proposed penalties for the nonserious violations the Secretary considered those elements of which are outlined in Section 17(j) of the Act.

DELTA ERECTION [*25] CORPORATION

1. Respondent, Delta Erection Corporation is, and at all material times was, a corporation organized and existing under the laws of the State of New York doing business as a steel erection contractor. Respondent handles products which move across state lines.

2. On or about October 20, 1972 Respondent was engaged in the construction of a building located on Old County Road in Westbury, Long Island, New York.

3. On or about October 20, 1972 and October 24, 1972 an inspection of the construction site was made by a compliance officer employed by the Secretary of Labor following which on October 27, 1972 certain Citations and a Notice of Proposed Penalties was issued to Respondent.

4. The alleged violations, abatement dates, and proposed penalties are as follows:

Serious violations: -- Abatement dates -- Proposed penalties

29 CFR 1926.500(d)(1) -- 5 days -- $600.00

29 CFR 1926.500(e)(1) -- 5 days -- $600.00

29 CFR 1926.500(b)(1) -- 5 days -- $600.00

Non-serious violations:

29 CFR 1926.150(c)(1) -- 5 days -- None

29 CFR 1926.500(d)(2) -- 5 days -- $30.00

29 CFR 1926.350(a)(9) -- Immediately -- $40.00

29 CFR 1926.450(a)(9) -- 5 days -- None

29 [*26] CFR 1926.23 -- 5 days -- None

5. All of the said violations were abated on about October 27, 1972.

6. At the hearing counsel for the Secretary of Labor withdrew all allegations of violations insofar as they related to the roof of the building and conceded that these particular violations had been improperly charged.

7. Respondent has conceded on the record that all violations, with the exception of those relating to the roof of the building, existed on the date of inspection.

8. This Respondent's employees were not exposed to Serious Violation No. 1 [29 CFR 1926.500(d)(1) -- lack of perimeter guarding] but were exposed to all of the other violations charged by the Secretary.

9. The formula applied by the Secretary of Labor in arriving at the proposed penalties for each of the three serious violations while giving due consideration to those items referred to in Section 17(j) of the Act, foreclosed the possibility of arriving at a penalty of less than $500.00 for each of these violations. I find that because the formula applied by the Secretary of Labor lacks the flexibility contemplated by Section 17(b) of the Act the resulting penalties proposed for the serious [*27] violations are excessive and inappropriate under the circumstances herein.

10. In arriving at the proposed penalties for the nonserious violations the Secretary considered those elements of which are outlined in Section 17(j) of the Act.

CONCLUSIONS OF LAW

LASTER AND FINGERET

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(d)(1); 29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9); 29 CFR 1926.450(a)(9) and 29 CFR 1926.23.

3. The first three violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

VALENTE CONTRACTING CORPORATION

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the [*28] Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(d)(1); 29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9); 29 CFR 1926.450(a)(9) and 29 CFR 1926.23.

3. The first three violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

ALCAP ELECTRICAL CORPORATION

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(d)(1); 29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9) and 29 CFR 1926.450(a)(9).

3. The first three violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the [*29] penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

GRODSKY PLUMBING COMPANY, INC.

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(d)(1); 29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9); 29 CFR 1926.450(a)(9) and 29 CFR 1926.23, 29 CFR 1926.451(a)(4) and 29 CFR 1926.451(a)(13).

3. The first three violations listed above are "serious" violations as defined by Section 17(k) of the Act.

5. In arriving at the penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

DELTA ERECTION CORPORATION

1. At all material times Respondent was an "employer" engaged in a business "affecting commerce" as those terms are defined by Section 3 of the Act.

2. On October 20, 1972 Respondent [*30] was in violation of the following Regulations issued by the Secretary of Labor:

29 CFR 1926.500(e)(1); 29 CFR 1926.500(b)(1); 29 CFR 1926.150(c)(1); 29 CFR 1926.500(d)(2); 29 CFR 1926.350(a)(9); 29 CFR 1926.450(a)(9) and 29 CFR 1926.23.

3. The first two violations listed above are "serious" violations as defined by Section 17(k) of the Act.

4. In arriving at the penalties proposed for all the said violations, due consideration was given by the Secretary to each of the criteria established by Section 17(j) of the Act.

ORDER

Pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 and 29 CFR 2200.66 it is ORDERED:

1. That all Motions to dismiss the Citations and Complaints made by counsel for Respondents are DENIED.

2. That all Citations, both serious and nonserious, issued against Laster and Fingeret, Valente Contracting Corporation, Alcap Electrical Corporation and Grodsky Plumbing Company be, and the same hereby, are AFFIRMED.

3. That all Citations, both serious and nonserious, issued against the Delta Erection Corporation with the exception of Serious Violation No. 1 [29 CFR 1926.500(d)(1)] be, and the same hereby are, AFFIRMED. Serious Violation [*31] No. 1 issued against this Respondent, and the penalty proposed for Serious Violation No. 1, are both VACATED.

4. That because Laster and Fingeret, Inc. has made an unnecessary expenditure of approximately $3,000.00 to correct alleged violations charged by the Secretary and subsequently withdrawn, this Respondent is relieved of the obligation to pay all penalties proposed by the Secretary of Labor. Said penalties, if already paid to the Secretary, shall be refunded to this Respondent.

5. Motions made by Respondents' counsel to vacate the penalties proposed by the Secretary for the three Serious Violations charged are granted to the following extent: The penalties proposed by the Secretary for each Serious Violation issued against Valente Contracting Corporation, Alcap Electrical Corporation, Grodsky Plumbing Company, Inc. and Delta Erection Corporation are, VACATED, and a penalty of two hundred dollars ($200.00) for each Serious Violation is assessed against each of these Respondents.

6. That the penalties proposed for each Non-Serious Violation issued against Valente Contracting Corporation, Alcap Electrical Corporation, Grodsky Plumbing Company, Inc., and Delta Erection [*32] Corporation be, and the same hereby are, AFFIRMED.