J.M. ROOFING COMPANY

OSHRC Docket No. 1759

Occupational Safety and Health Review Commission

December 24, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: A decision of Administrative Law Judge Paul L. Brady, dated July 18, 1973, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

In October, 1972, the J.M. Roofing Company, a roofing contractor, was engaged in roofing construction work in New Berlin, Wisconsin.

On October 11, 1972, a U.S. Labor Department inspector conducted an inspection of the company's workplace. As a result of the inspection, on November 6, 1972, the company was issued a citation alleging two other than serious violations of standards promulgated pursuant to the Act and a notice of proposed penalty. n1 Violations of standards are a breach of the statutory duty prescribed in section 5(a)(2) of the Act.

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n1 The citation specified that the company violated: (1) 29 CFR 1904.8 in that respondent failed to notify the nearest OSHA office of a fatal accident; and (2) 29 CFR 1926.550(a)(15)(i) in that the company failed, where a crane was being operated near high tension lines, to provide a minimum clearance of 10 feet between the power lines and any part of the crane. A penalty of $200 was proposed for item 1, and one of $225 was proposed for item 2.

[*2]

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The company filed a timely notice of contest. A hearing was held on April 19, 1973, in Milwaukee, Wisconsin, before Administrative Law Judge Paul L. Brady. At the hearing the parties stipulated in effect that the company no longer contested the reporting violation, or the penalties for either the reporting violation or the crane violation. In short, the parties wished to try only the singular issue of whether the company violated 29 CFR 1926.550(a)(15)(i) by failing to have a crane operated at a minimum clearance of 10 feet from an electrical power line.

There was conflicting testimony at the hearing concerning the directions given by the company's foreman in the operation of the crane. The Judge, however, found that the company's foreman had actual knowledge of the moving of the crane to the area where the crane had to operate very close to the electrical power line. In the the process of lowering equipment between the building and the power line the crane cable struck the power line and an employee of the company was electrocuted. The Judge observed that the foreman made no reasonable [*3] effort to eliminate the dangerous condition in spite of his knowledge. He increased the penalty for the violation from $225 to $500.

Subsequently, the Secretary petitioned for discretionary review of the Judge's decision alleging that the Judge erred in not approving the stipulated penalty for the crane violation and increasing the penalty therefor. Thereafter, review of the Judge's decision was directed on the issue whether the Commission has the authority to increase the amount of a penalty in excess of that proposed by the Secretary. n2 The Commission invited the parties to file briefs on this issue and any other issues in the case.

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n2 This issue should not be examined in the abstract but in light of the facts of this case. Brennan v. O.S.H.R.C. & Santa Fe Transport Co., No. 74-1049 (10th Cir. 1974).

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Respondent has filed no brief with the full Commission. The Secretary has filed a brief, however, in which he reverses the position taken in his petition for discretionary review, and asks that we affirm [*4] the Judge's decision increasing the penalty. He now declines to brief the issue of whether the Commission can pierce the stipulation of the parties on the penalty, and chooses to rely upon the Commission's general power to raise penalties proposed by the Secretary. n3

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n3 The Commission has consistently recognized that the penalties that it finds appropriate may well exceed those proposed by the Secretary of Labor. Chicago Bridge & Iron Co., No. 609 (November 20, 1974), and cases cited therein.

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Whether the stipulation should be pierced is the critical issue. In Thorlief Larsen, No. 370 (October 11, 1974), the lead opinion holds the the Commission will refrain from making its own assessment of penalty when the amount of the penalty to which all of the parties have stipulated is not "repugnant to the purposes and policies of the Act."

The test of repugnancy is consonant with section 5(b) of the Administrative Procedure Act which permits an agency to refuse to accept an agreement of the parties when [*5] the agreement is not consistent with the "public interest." 5 U.S.C. section 554(c).

Civil penalties that may be assessed under the Act are remedial rather than punitive in nature. Frank Irey, Jr., Inc. v. O.S.H.R.C. & Brennan, No. 73-1765 (3d Cir. Nov. 4, 1974). Their obvious purpose is to bring about present and future compliance with the Act's requirements. The price of wrongdoing should be less attractive than that of compliance. When a settlement or stipulation will not likely promote compliance with the law, an agency is justified in concluding that the settlement or stipulation would not be in the public interest. Attorney General's Manual on the APA, pp. 49-50 (1947).

In this case, the Secretary's proposed penalty of $225 was arrived at after consideration of the statutory factors listed in section 17(j) of the Act. There was an allowance of a 50 percent abatement credit even though the company had corrected the situation because he rented crane was no longer at the workplace. But for the 50 percent abatement credit, the penalty found appropriate by the Judge and that proposed by the Secretary are not far apart. Although an appropriate credit for timely [*6] abatement is certainly consonant with the remedial nature of a civil penalty and seems within the umbrella of "good faith," it is something to be applied when it bears a real and substantial relationship to the facts of the case. Cf. Morton v. Delta Mining, Inc., 495 F.2d 38 (3d Cir. March 20, 1974). In this case an abatement credit is not necessary for inducing present compliance. Therefore, the penalty reflecting the abatement credit and contained in the stipulation can hardly be said to be consistent with the application of the statutory penalty factors. Use of a rigid 50-percent abatement credit would be repugnant to the purposes of the Act, and could well result in a casuistic approach to compliance with its requirements.

We accept the weight that the Judge has assigned to the statutory factors in assessing the penalty. Accordingly his assessment is affirmed.

CONCURBY: VAN NAMEE; MORAN (In Part)

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I find Judge Brady's disposition for the reasons assigned by him to be proper, and I therefore concur in the disposition. I would add that I agree in principle with Commissioner Cleary's statements concerning the abatement [*7] credit.

I, of course, do not find the question of whether the stipulation should be pierced to be critical. Thorlief Larsen & Sons, Inc., Dkt. 370, BNA 2 O.S.H.C. 1256, CCH E.S.H.G. para. 18, 826 (October 11, 1974, dissenting opinion). I would point out, however, that it is of no moment in this case because the parties superseded the stipulation by presenting evidence in the penalty issue. See Bogart v. United States, 169 F.2d 210 (10th. Cir. 1948) and cases cited at footnote 3 therein.

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with affirming the Judge's decision except insofar as it assesses a penalty in excess of $225.00 for the respondent's failure to comply with 29 C.F.R. 1926.550(a)(15)(i).

It is wrong for the Commission to assess a penalty greater than that proposed by the Secretary of Labor for a number of reasons. When the Commission raises a penalty, its action is not only violative of the equal protection and due process provisions of the Constitution, but also exceeds the authority bestowed on the Commission by Congress. Additionally, as a matter of practice, it is a poor policy because of [*8] the "chilling effect" it has on employers who desire to exercise their right to contest alleged violations. n4 Since I have discussed these points in many prior cases, n5 I will not repeat the rationale that I expressed in those cases. Because of facts peculiar to this case, however, the Commission's affirmance of an increased penalty is particularly repugnant.

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n4 If the employer does not contest the Secretary's citation or penalty proposal, both become final, and the penalty cannot be increased thereafter. Dale M. Madden Construction, Inc., v. Hodgson, 502 F.2d 278 (9th Cir. 1974); 29 U.S.C. 659(a).

n5 See e.g., Secretary v. Chicago Bridge & Iron Co., 13 OSAHRC 355 (1974); Secretary v. Lipsky & Rosenthal, Inc., 8 OSAHRC 375 (1974); Secretary v. Painting Unlimited, Inc., 7 OSAHRC 257 (1974); Secretary v. California Stevedore & Ballast Co., 4 OSAHRC 642 (1973); Secretary v. Tacoma Boatbuilding Co., 4 OSAHRC 607 (1973); Secretary v. M.A. Swatek and Co., 2 OSAHRC 1276 (1973).

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Although [*9] the parties stipulated at the hearing that the appropriateness of the Secretary's penalty proposal was not in issue, the Judge waited until after the hearing to reject the stipulation when he did so by increasing the penalty that had been agreed upon by the parties. Since the respondent proceeded on the basis that the question of penalty assessment was not in issue at the hearing, the Commission will never know whether the respondent may have desired to present additional evidence relevant to that issue if it had known that the Judge intended to consider the question. One principal purpose for pleadings and stipulations is to narrow the issues for disposition. Under the circumstances present in this case, I believe that the parties had a right to assume that their stipulation would preclude any further consideration of the appropriateness of the penalty. The result ordered by the Judge caught the parties by surprise and was patently unfair.

I believe that my colleagues have lost sight of the fact that this Commission is not the traditional type of agency which makes and enforces rules and adjudicates disputes involving those rules. See Brennan v. Gilles & Cotting, [*10] Inc., 504 F.2d 1225 (4th Cir. 1974); Dale M. Madden Construction, Inc. v. Hodgson, supra. In Secretary v. Wetmore & Parman, Inc., 2 OSAHRC 288 (1973), the Commission took a bold step in the right direction by recognizing that it should function as a court because the Act provides for the Secretary of Labor to be the enforcer of its provisions and limits the role of the Commission to adjudicatory functions. That position has been approved in the Gilles & Cotting and Madden cases and in several other appellate decisions. See, e.g., Frank Irey, Jr., Inc. v. OSAHRC,    F.2d    (3d Cir. 1974); Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869 (10th Cir. 1974) n6. In the case sub judice, the Commission is again taking a step backward from Wetmore & Parman.

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n6 Footnote 2 of the lead opinion relies on the Santa Fe Trail case for the proposition that the issue of increasing penalties "should not be examined in the abstract but in the light of the facts of this case." The issue in Santa Fe Trail was the vagueness of a standard, and the Court was referring to the rule that the vagueness of a regulation must be determined "'in light of conduct to which [the regulation] is applied.'" That rule has absolutely nothing to do with the validity of penalty increases.

[*11]

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The lead opinion's reliance on 5 U.S.C. 554(c) and the 1947 publication by the Attorney General is misplaced. n7 5 U.S.C. 554(c) obviously applies to agencies that have prosecutorial responsibilities, that is, the Secretary of Labor in occupational safety and health proceedings. It is also clear to me that the Attorney General in publishing his Manual in 1947 did not contemplate a scheme of administrative enforcement where the adjudicatory function would be performed by a tribunal that is entirely independent of the enforcement agency. This conclusion is supported by the following explanation of the definition of "agency" on page 9 of the Manual:

This definition was adopted in recognition of the fact . . . that these agencies . . . are further subdivided into constituent units which may have all the attributes of an agency insofar as rule making and adjudication are concerned. (Emphasis added.)

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n7 It should also be noted that the matter quoted from Secretary v. Thorleif Larsen & Son, Inc., 12 OSAHRC 313 (1974) does not represent a Commission holding. Although I concurred in the result in the Larsen case, I expressly disagreed with the rationale contained in the lead opinion. The remaining Commission member dissented in that case.

[*12]

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The Commission justifies the increased penalty on the basis that the respondent should not have been allowed an abatement credit because early abatement of the hazard obviated the necessity for inducing corrective action. Such a rule can only encourage employers to delay correcting hazardous conditions until they receive an official penalty notice by certified mail. See 29 U.S.C. 659(a). Otherwise, they may lose any abatement credit that was allowed in computing the penalty proposal. Clearly, this does not effectuate the purposes of the Act.

The concurring opinion, citing Bogart v. United States, 169 F.2d 210 (10th Cir. 1948), finds that the stipulation was rescinded by the presentation of evidence on the penalty issue. When, as here, a respondent contests whether there has been a violation, proof of the violation always inherently includes evidence of the gravity of the violation, a factor which must be considered in assessing penalties under the Act. 29 U.S.C. 666(i). Therefore, application of the rescission theory would preclude employers from relying on a penalty settlement when [*13] they contest a citation. Furthermore, by presenting evidence on the penalty issue, the complainant was doing what the Commission has required him to do when the parties agree to a penalty. Secretary v. Thorleif Larsen and Son, Inc. 12 OSAHRC 313 (1973). Since the complainant complied with the Commission's direction in this case, that compliance is now used to abrogate the stipulated penalty. The Bogart case holds that a stipulation may be abandoned by the inconsistent conduct of one party thereto which is acquiesced in by the other party. I find no such conduct or acquiescence in this case, and it is unjust to infer it from the presentation of evidence that pertains to the appropriateness of the penalty.

As a natural incident of his enforcement authority, the Secretary has plenary power to settle cases and that power extends to the compromise of penalties even after the Commission has decided a case. Dale M. Madden Construction, Inc. v. Hodgson, supra. In the instant case, the stipulation constitutes a settlement of the penalties between the parties, and the Commission has no authority to disturb the settlement. Moreover, the Secretary can and should [*14] enforce no penalty in excess of that specified in the agreement.

[The Judge's decision referred to herein follows]

BRADY, JUDGE: This proceeding is brought pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. The citation which was issued November 6, 1972, alleges that as the result of an inspection of Respondent's work place located at 2370 South 170th Street, New Berlin, Wisconsin, Respondent violated Section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to Section 9(a) of the Act. The citation which was issued November 6, 1972, alleges that as the result of an inspection of Respondent's work place located at 2370 South 170th Street, New Berlin, Wisconsin, Respondent violated Section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to Section 6 thereof. A notice or proposed penalty was issued with [*15] the citation.

The Secretary alleges that on September 21, 1972, Respondent violated the standards codified at 29 CFR 1904.8 and 29 CFR 1926.550(a)(15)(i). The hearing was held at Milwaukee, Wisconsin on April 19, 1973, and no additional parties sought to intervene.

J.M. Roofing Inc., is a corporation with an office and place of business located at 21625 Doral Road, Waukesha, Wisconsin, and engaged in the business of roofing construction. At the hearing Respondent withdrew its contest of the alleged violation of the standard codified at 29 CFR 1904.8, and the penalty proposed for each violation.

The issues to be determined in this proceeding relate to whether the Respondent violated the standard at 29 CFR 1926.550(a)(15)(i) as alleged, and whether the proposed penalties are appropriate. The standard provides as follows:

(15) Except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in [*16] accordance with the following:

(i) For lines rated 50 KV., minimum clearance between the lines and any part of the crane or load shall be 10 feet;

In the Citation the alleged violation is described as follows: 29 CFR 1926.550(a)(15)(i)

Employer failed to provide that power lines rated 50 KV or below, minimum clearance between the lines and any part of the crane or load shall be ten feet.

The Respondent admits that on September 21, 1972, its employee Gary Fournier was electrocuted at the aforementioned workplace. The accident occurred while Fournier was handling and guiding a gravel spreader which was being lowered to the ground by a crane. The gravel spreader was being lowered by the crane between the north wall of a building and electric power lines, which ran parallel to the wall (Tr. 2).

Mr. Larry Reickhoff, the crane operator, testified that on September 21, 1972, he was in the employ of the Allied Crane Service, and was instructed to work for J. M. Roofing on said date. Upon arriving at the worksite he was instructed by Mr. Frank Mosher, the foreman, where to set up his machine in order to lift gravel to a building roof (Tr. 7, 8). The gravel was located on the ground [*17] to the west of the crane and therefore the load was swung from the west in a southerly direction to the roof. Power lines were observed to the left of the crane, but none were to the west (Tr. 10).

The loading of the gravel on the roof was completed about 4 or 4:15 p.m. The witness testified that he was preparing to "fold the machine up," when Gary Fournier asked him to bring down some equipment owned by J. M. Roofing which was too heavy to lift down otherwise (Tr. 12). In bringing down the first piece of equipment he was stopped, and after Mosher and Fournier conferred, he was directed to come down the north side of the building in order to be near the truck when it came. At this point the witness stated that he "mentioned the wires again to him," in reference to Gary Fournier who was directing him from the ground. The North wall was about ten to fifteen feet from the power lines (Tr. 13, 14).

Mr. Reickhoff testified that after lowering the first piece of equipment he went back up and Frank Mosher hooked up the gravel spreader and directed him to go to the North end by the wall, and signaled to start coming down as Fournier began directing him from the ground. When [*18] the spreader was low enough, Fournier grasped the line and started backward over a pile of dirt, while looking up at the power line. The witness stated that he looked up to see an arc extend between the power line and the cable of the crane, which was about one to two feet, as Gary fell to the ground (Tr. 15, 16, 44).

The witness testified that there was no insulation or barriers to protect against contact with the power lines, nor were there any signs the line had been grounded. Further, the crane remained in the same position until after five-thrity that evening when the power company permitted it to be moved (Tr. 17, 39).

Mr. Paul Yopps, a lineman for the Wisconsin Electric Power Company, arrived at the worksite at approximately 5:00 p.m. for the purpose of making measurements (Tr. 48). He testified that a burn mark was observed on a live power line, which was closest of three lines, near the building wall (Tr. 50). This line was not grounded, and carried 4800 volts. Also, just south of the line was a boom truck with an extended cable containing a burn mark (Tr. 52). The distance from the south face line to the crane cable was approximately eight feet, on a parallel [*19] plane, and the burn marks resulted from actual contact. The distance from the line to the building was approximately eleven feet (Tr. 54, 55).

Mr. Stephen Jashinsky, a roofer employed by Respondent, testified that at the time and place in question he saw the power line and crane cable come in contact, causing a blue light and a buzzing sound (Tr. 61).

Mr. Frank Mosher testified that he was the foreman on the jobsite and that he instructed the crane operator what he was to do, and the direction he wanted the crane swung (Tr. 78, 80). He continually observed the operator performing as instructed (Tr. 81). He also revealed that upon completion of lifting the gravel, he directed that the J.M. equipment should be lowered in the same direction as the gravel had been lifted. He indicated that after he hooked on the first piece of equipment on the roof, Fournier disagreed with him and wanted the equipment moved to a northerly location. It was at this point that he told Fournier that "if the crane operator is willing, I don't care," however he maintained that he did not give any instructions to move it to the north (Tr. 84, 85).

He subsequently hooked on a second piece of equipment [*20] and motioned for it to be taken away (Tr. 87).

On cross-examination the witness disclosed that he saw the first piece of Respondent's equipment moved off to the North, prior to hooking up equipment the second time, which gave rise to the fatal accident (Tr. 95, 96).

On the basis of the evidence it must be concluded that the standard was violated as alleged. Larry Reickhoff the crane operator, testified he saw an arc of about one to two feet between the cable and the power line. Steven Jashinsky, an employee on the scene, stated that he saw the cable and power line contact which caused a "buzzing sound." Paul Yopps, an employee of the Wisconsin Electric Power Company pointed out that the power line carried 4800 volts and that burn marks on the cable and power line resulted from actual contact, also, the line was not grounded or insulated.

It is Respondent's contention that the instructions of the foreman had been disregarded by its employee and the crane operator, by moving the company equipment in the northerly direction. However upon becoming aware of the first move to the north, he took no action to terminate such activity, but actually hooked up the equipment for [*21] the second move.

The evidence establishes that the crane cable came in contact with the energized power line in violation of the standard. The employer is charged under the Act with the responsibility of providing a safe workplace for his employees. The foreman on the jobsite herein who admittedly had supervision of the crane operation was placed in a position to represent the employer in this instance. He therefore had the authority and responsibility to accomplish the job in a safe manner. The evidence is undisputed that he directed the operation, and he knew that his employee and the crane operator were exposed to the hazard of the crane contacting the electric power lines, but took no effective steps to prevent such occurrence. The failure on the part of the foreman to act under the circumstances must necessarily be imputed to the Respondent.

APPROPRIATENESS OF PENALTIES

The authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, under Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a), and notifications issued and penalties proposed by the Secretary [*22] under Section 10(a) and 10(b).

In determining the appropriate penalty the Commission under Section 17(j) of the Act is expressly required to give "due consideration" to the size of the employer's business, the gravity of the violation, good faith of the employer, and history of previous violations, in determining the assessment of an appropriate penalty.

Mr. Phil Vankuiken, Compliance Safety and Health Officer for the Department of Labor testified that the penalty for violation of the standard at 29 CFR 1904.8, item one of the citation, is set at $200.00 (Tr. 74) He testified that in determining the proposed penalty for the alleged violation of the standard at 29 CFR 1926.550(a)(15)(i), the above factors were considered. Commencing with an amount of $1,000, the maximum amount authorized under the Act, a 50% abatement was allowed, and a 20% credit allowed for good faith, 5% for size, and 20% for previous history. In addition the gravity of the situation was considered in arriving at the proposed penalty of $225.00. Mr. Vankuiken stated the "probability that an electrocution or severe shock could occur, working in that area is great," and that he would determine the gravity [*23] of the violation to be great (Tr. 75).

In Nacirema Operating Company, Inc., OSHRC Doket No. 4 the Commission pointed out that the four criteria provided under Section 7(j) cannot always be given equal weight, however, it was indicated that the principal factor to be considered is the gravity of the offense. The Commission held in National Realty and Construction Co., Inc.,

Weighing all the foregoing factors in light of the circumstances, the proposed penalty of $225.00 cannot be sustained. A penalty of $500.00 is appropriate and reasonable considering the facts of this case. The foreman was fully aware that the crane was being operated in a very confined area near the power lines, and although with this knowledge he made no reasonable effort to eliminate this dangerous condition which was within his direct control.

Based upon the facts presented in this [*24] case the violation would appear to be of a serious nature in a manner consistent with the provision of section 17(k) of the Act. It has been held however, that the Commission in discharging its statutory responsibilities, and maintaining its impartial role, does not have the authority to find a violation of a higher degree than that charged by Secretary ( Wetmore & Parman, Inc. Docket No. 221).

FINDINGS OF FACT

1. J.M. Roofing Inc. is a corporation having a place of business at 21725 Doral Road, Waukesha, Wisconsin.

2. On September 21, 1972, Respondent was engaged in constructing the roof of a building located at 2370 South 170th Street, New Berlin, Wisconsin.

3. As part of the roof construction on September 21, 1972, it was necessary that a crane be utilized for the lifting of gravel and equipment. The use and operation of said crane was under the supervision of Respondent's foreman at the jobsite.

4. During the time of the roofing activities as aforesaid there were electric power lines running parallel to the north wall of the building each carrying 4800 volts. The closest line to the building was approximately eleven feet, and was not deenergized, grounded, nor equipped [*25] with insulating barriers.

5. At the conclusion of lifting gravel to the roof, the crane operator was instructed to lower certain equipment of Respondent to the ground. In the process of lowering such equipment between the building and the power lines, the crane cable came in contact with a power line causing the electrocution of an employee.

6. Respondent's foreman hooked up the equipment to be lowered from the roof, and had actual knowledge of the movement of the crane to the hazardous area between the north wall of the building and the power line.

7. On October 11, 1972, an authorized representative of the Secretary conducted an inspection of the above worksite. As a result of the inspection, on November 6, 1972, a citation was issued, with notice of proposed penalty.

8. At the hearing Respondent withdrew its contest of the alleged violation of the standard at 29 CFR 1904.8.

9. The proposed penalties were determined in accordance with the administrative guidelines of the Secretary. The penalty proposed for violation of item number one of the citation in the amount of $200.00 is found to be reasonable and appropriate. The penalty proposed for violation of [*26] item number two is found to be unreasonable, and a penalty of $500.00 is deemed appropriate.

CONCLUSIONS OF LAW

1. J.M. Roofing Inc., at all times pertinent hereto was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a) of the Act.

3. Respondent was in violation of the standard at 29 CFR 1904.8 on September 21, 1972, as charged in the citation, and a penalty of $200.00 is assessed for such violation.

4. Respondent was in violation of the standard at 29 CFR 1926.550(a)(15)(1) on September 21, 1972, as charged in the citation, and a penalty of $500.00 is assessed for such violation.

5. Respondent failed to comply with the regulations set forth above, thereby violating Section 5(a)(2) of the Act.

Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is ORDERED

1. That the [*27] citation and proposed penalty issued for violation of 29 CFR 1904.8 is affirmed and a penalty of $200.00 is assessed.

2. That the citation issued for violation of 29 CFR 1926.550(a)(15)(i) is affirmed. The proposed penalty is hereby modified and a penalty in the amount of $500.00 is assessed.