OSHRC Docket No. 221

Occupational Safety and Health Review Commission

January 18, 1973


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



  VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order to direct review of a decision and order rendered by Judge John J. Larkin.   Following a hearing, Judge Larkin affirmed the Complainant's citation which alleged that Respondent was in serious violation of the occupational safety standard prescribed by 29 C.F.R. 1518.500(d)(1) (subsequently redesignated 29 C.F.R. 1926.500(d)(1) and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq.; hereinafter "the Act").   Judge Larkin also concluded that a civil penalty of $750 should be assessed against Respondent for its violation.

I directed review in this case because in my view the substantial evidence on the record considered as a whole would support a conclusion that this Respondent was in willful violation n1 of the Act's requirements.

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n1 A party in willful or repeated violation of the Act's requirements may be assessed a civil penalty of up to $10,000 as provided for by section 17(a).

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We have reviewed the record, the Judge's decision, and the brief filed by the Secretary of Labor n2 hereinafter, "the Secretary").   For the reasons given hereinafter we conclude that the Commission is without authority to find an employer in willful violation of the Act's requirement when the Secretary has not   charged the employer with such violation, and the issue is not tried by the parties.   Accordingly, we affirm the Judge's decision and order to the extent that it does not conflict with this decision and order.

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n2 Although afforded an equal opportunity to brief the issues on review, Respondent did not choose to file a brief.

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The facts of the case are as follows:

During the fall of 1971, Respondent was erecting a six story building on the campus of Alcorn A & M College in Lorman, Mississippi.   Upon being informed that one of Respondent's employees had suffered a fatal injury on the job site the Secretary, by his safety and health compliance officer, Frazier, made an accident investigation at the job site.   This investigation was made on October 4 and 5, 1971.

While making the investigation Frazier noted that Respondent was pouring concrete in the construction of the fifth floor of the building.   He observed that the floor was open-sided and unguarded contrary to the requirements of 29 C.F.R. 1518.500(d)(1). n3 Notwithstanding this observation, the Secretary failed to issue a citation for an alleged violation.

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n3 The safety standard provides, in pertinent part, as follows: "Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section. . . .   As pertinent, paragraph (f)(i) defines a standard railing to include a 2 X 4 inch guard rail located 42 inches above the floor and a midrail.

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Rather, Frazier discussed the matter with Respondent's general superintendent, Taylor, and advised him of a method whereby the hazard could be abated.   Taylor agreed to abate the hazard in accordance with the advice given.   Thereafter, Taylor contacted the Respondent's president, Mr. A. L. Parman, who testified at the hearing as follows:

  "Q.   Now there has been some testimony here in regard to the discussion between Mr. Frazier and Mr. Taylor as to perhaps a more substantial protective device here in the form of a steel cable.   To what extent were you familiar with that and to what extent did you not take action?

A.   Mr. Taylor discussed this with me after Mr. Frazier's visit to him.   We looked at the situation, read the regulations, keeping in mind all the time that regardless of what we looked at, we were looking after the safety of the men."

Frazier reinspected the job site on November 10, 1971, and observed Respondent's employees working on the sixth floor of the building.   He found that Respondent had not abated the hazard. In particular, he observed some of Respondent's employees working at an unguarded open-sided edge of the floor where the drop to the next level (ground) was sixty feet. n4 Upon being questioned by Frazier, Respondent's general superintendent said that the hazard   had not been abated because Respondent did not want to spend the money it would take to abate the hazard.

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n4 Respondent had erected a fiber rope barrier at another portion of the floor's outside edge. The drop to the next lower level at this edge was ten feet. The compliance officer characterized this method of guarding as a "sarcastic approach" since in his view it could not provide the protection required by the standard.

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On these facts there can be no doubt that Respondent was in serious violation of the standard prescribed by 29 C.F.R. 1518.500(d)(1) and of section 5(a)(2) of the Act.   The sixth floor was open-sided and unguarded by a standard railing or equivalent.   Respondent admitted that an employee's ". . . chances of being killed are real good . . ." if he falls from the floor. Finally, Respondent had actual knowledge of the regulation   and of the existence of the violation, but it refused to comply simply because it did not want to spend the money.

Respondent's conduct was of such character   as to be willful in the civil sense.   That is, it was intentional, knowing or voluntary as distinguished from accidental, and it may be characterized as conduct marked by careless disregard.   United States v. Illinois Cent. R. Co., 303 U.S. 239, 243, 58 S. Ct. 533, 535, 82 L. Ed. 773 (1938); Hodgson v. Hyatt, 318 F. Supp. 390, 392 (N.D. Fla. 1970). Accordingly, as said above, we might have affirmed a citation for willful violation. However, such citation is not before us because the Secretary, although possessed of the facts, did not choose to allege a willful violation and does not consent to an amendment of the citation.   Absent such consent we are without authority of our own to amend the charge.   We reach this conclusion as a result of our review of the terms of the Act in the light of its legislative history and upon our understanding of the role this Commission is to fulfill in the enforcement scheme established by the Act.

Turning now to the provisions of the Act there can be no doubt as to the intendment of Congress.   Clearly, and contrary to the usual administrative scheme of law enforcement, Congress divided enforcement functions between separate and independent agencies of the Federal Government.   This Commission was established to perform civil adjudicatory functions to therapy implement the congressional purpose expressed in section 2(b)(3) of the Act.   It is empowered through sections 10, 12, and 17 of the Act to hold hearings, render decisions affirming, modifying or vacating citations or proposed penalties or directing other appropriate relief, and to assess civil penalties.   On the other hand, the Commission is not empowered to conduct safety and health   compliance inspections, issue citations when a belief is formed that a violation exists in a place of employment, propose penalties, and prosecute employers believed to be in violation of the Act's requirements.   Those functions are vested in the Secretary by section 8, 9, 10 and 14 of the Act.   Consequently, under the plain terms of the Act civil enforcement responsibilities are split between two separate and independent agencies of the Federal Government.   The Secretary performs the investigatory and prosecutorial aspects of the civil enforcement function.   The Commission, on the other hand, performs the adjudicatory portion of the enforcement function.

Although the Commission is empowered only to perform functions of a judicial character it was not constituted as a court under Article 3 of the Constitution.   Rather, the Commission was established as an administrative agency or legislative court within the Executive Department of the Federal Government.   The question thus presented is whether the Commission in the discharge of its statutory responsibilities should perform as a court within the traditional sense n5 or as an agency. n6

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n5 It is well established, at least in the area of criminal law, that constitutional courts will not interfere with the freedom of discretion in a prosecutor to both initiate and control the course of his prosecution.   That is, it is the function of the prosecutor, in his sole discretion, to decide when and under what circumstances a violation will be charged, and the exact nature of the charge.   United States v. Thompson, 251 U.S. 407 (1920); United States v. Cox, 342, F. 2d 167, 171 (5th Cir. 1965); Goldberg v. Hoffman, 225 F. 2d 463 (7th Cir. 1955). Of course, prosecutions before this Commission are with respect to alleged violations that are civil in nature.   Nevertheless, the cited authorities would have been persuasive had the Commission been constituted as an Article 3 court.

n6 It has been suggested that as an agency we may also increase the character of an alleged violation as was thought at the time the direction for review in this case was issued.   However, see International Union Radio and Machine Workers, AFL-CIO v. N.L.R.B., 289 F. 2d 757 (D.C. Cir. 1960).


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  It is our view that the Congress intended that we act in the traditional sense.   It was aware of the impact that the Act would have on the business community and concerned about providing assurances to that community that fairness and due process be fully served. n7 To obtain that end the individual members expressed their desire that there be a separation of the enforcement powers along the traditional lines of the Federal system. n8

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n7 Staff of the Senate Subcommittee on Labor, 92nd Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, pgs. 464, 470 (Senator Javits), 1147 (Senator Williams) (Comm. Print 1971).

n8 id. at pgs. 991 (Rep. Steiger of Wisconsin), 1015 (Rep. Eshlemann), 1016, 1068 (Rep. Erlenborn), 1024 (Rep. Hathaway).

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As said above, n9 traditional courts do not and cannot supervise the prosecutor by dictating the charges that he must bring before them.   Were they to do so they would violate fundamental concepts of fairness in that such action would nullify the principle of the impartiality of the courts.   Similarly, if we were to find a greater violation in kind than that alleged by the Secretary we of necessity diminish our own impartiality. Under such conditions we would be in the position of supervising the Secretary in his discretionary role of prosecutor.

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n9 See note 5.

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We do not think that this was the kind of fairness the Congress intended.   It is for these reasons that we believe ourselves without authority, absent the consent of the Secretary, to find a violation of a degree higher   than that charged by the Secretary.   Accordingly, in this case, we must affirm the citation for serious violation.

We turn now to the matter of an appropriate penalty to be assessed in the circumstances of this case.   As noted above, employees were exposed to the hazard of unguarded, open-sided floors for a period of over a month.   The employees were working at the outer peripheral edges of the floor at least at the time of the second inspection. Consequently, the probability of the occurrence of an injury was increased.   The potential seriousness of injury in the event of occurrence was death.   Consequently, the gravity of the violation is high.   Moreover, the record in this case makes it abundantly clear that Respondent acted without good faith.   Under these circumstances we conclude that Respondent should be assessed a civil penalty of $1,000.

Accordingly, it is ORDERED that the Secretary's citation for serious violation of the Act's requirements be and the same is hereby affirmed and that Respondent be assessed a penalty in the sum of $1,000 for such violation.  




  BURCH, COMMISSIONER, concurring in part and dissenting in part: I disagree with the affirming of the citation for serious violation.

This Commission has the unquestioned statutory authority to "assess all civil penalties" as provided in section 17(j) of the Act.   This authority may not be exercised in a vacuum, and I am of the opinion that the Commission has not only a right but an obligation to review the citation with regard to the seriousness of the violation.  

Section 10(c) of the Act states, in relevant part:

The Commission shall [after hearing] issue an order, based   on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief . . . .

This section gives the Commission the authority to review both the citation and the proposed penalty.   The authority to change an alleged violation from other-than-serious to serious, or to find it willful or repeated is part of the power to modify the citation or to direct "other appropriate relief." The Secretary argues that "modify" means "moderate" or "make less extreme," citing Webster's Seventh Collegiate Dictionary.   I prefer the definition of "modify" contained in Black's Law Dictionary, rev'd 4th, "to alter, to change," to "enlarge, extend, limit, reduce." n10

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n10 See, Jarman v. Collins-Hill Lumber & Coal Co., 286 N.W. 526, 528 (1939); McGoldrick Lumber Co. v. Benewah County, 35 P.2d 659, 662 (1934); Johnson v. Three Rays Properties #2, Inc., 158 S.2d 924, 926 (D. Ct. App. Fla. 1964).

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The Secretary contends that changing a citation from serious to willful ". . . would result in an amendment of the charge to the detriment of the Commission's impartiality." The majority agrees, stating, ". . . if we were to find a greater violation in kind than that alleged by the Secretary we of necessity diminish our own impartiality."

I can conceive of no way that we can diminish our impartiality more than by refusing to see willful violations where supported by substantial evidence or, similarly, to find serious violations where non-serious are alleged.   In my opinion, we make light of the purposes of the Act and do little to justify our place in the statutory scheme if we permit ourselves to be shorn of jurisdiction by a citation often written by a hurried or harried compliance officer not in possession of all of the facts, or by a complaint drawn up by a regional attorney   for the Secretary before the adducement of material facts at the hearing.

Moreover, the majority interpretation sharply curtails the right afforded by Congressional mandate to affected employees or their authorized representatives of an opportunity to participate in proceedings before the Commission as parties.   Certainly, circumstances will arise in which employees expect to adduce evidence showing that employers' violations were different in degree than that alleged by the Secretary or that violations were willful or repeated in nature.   A hearing is intended to afford opportunity for the adducement of all evidence affecting an alleged violation.   To subscribe to the interpretation set forth by the majority would mean that evidence tending to show a violation different in degree from that alleged would be excluded as irrelevant.

The essence of impartiality in administrative law is that where substantial evidence supports a conclusion, to so conclude.   The fact that the original charging party was either unaware of all the circumstances bearing on an issue, or was inaccurate in setting forth some essential element of a case is no reason to fail to act appropriately once evidence is spread on the record.

In support of its position that the Commission may not "increase the character of an alleged violation," the majority has cited International Union of Electrical, Radio and Machine Workers, AFL-CIO v.   N.L.R.B., 289 F.2d 757 (D.C. Cir. 1960). This opinion holds that the Board may not amend the complaint of the General Counsel without his consent.   The case is plainly inapposite.   The complaint of the General Counsel of the Board is in no way analogous to the Secretary's citation.   If any analogy exists, it is between the citation and the charge filed by the charging party -- which is,   of course, no more a pleading than the citation in cases arising under this Act.

When the majority says, ". . . if we were to find a greater violation in kind than that alleged by the Secretary we of necessity diminish our own impartiality" it is in effect relinquishing to the Secretary its authority under section 17(j) -- authority granted by Congress exclusively to the Commission.

The Commission has the primary, exclusive jurisdiction to determine the facts on ". . . substantial evidence on the record considered as a whole . . . ." Section 11(a).   Upon these facts, as determined by the Commission, the legal conclusion as to whether a violation exists and, if so, what penalty shall be assessed by the Commission must be based.

Thus, my fellow Commissioners have not only "interpreted"   this body's jurisdiction away, they have rewritten the statute.   A pleading, especially the citation, is not "substantial evidence." To agree with the Secretary that the Commission is bound by whatever the Secretary's representatives place on a citation is to permit the Secretary to arrogate to himself by a stroke of the pen the Commission's authority to assess penalties under section 17.

Nor can I agree with the majority that Congress intended the Commission to act as a "traditional court" rather than as an agency.

There is nothing in the legislative history of the Act to support such a conclusion.   Indeed, there is much to the contrary.   Senate amendment No. 1061, introduced by Senator Javits, was enacted, substantially unchanged, as sections 10, 11, and 12 of the Act.   In his discussion of this amendment, Senator Javits said:

It creates a review commission which will deal with all complaints referred to it by the Secretary and which will have   the same type of authority that the Federal Trade Commission exercises. . . .   It is the traditional Federal Trade Commission type of procedure.

Legislative History of the Occupational Safety and Health Act of 1970, Committee Print, Government Printing Office, 1971, p. 462, hereinafter "Leg. Hist."

Senator Javits defined the proposed commission as an ". . . autonomous body with tenure and quasi-judicial power," n11 and also said, "The analogies between the qualifications of members and the authority of the Commission, and so forth, would be with the Federal Trade Commission." Leg. Hist., p. 465.

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n11 "Quasi-judicial" is defined in Black's Law Dictionary, rev'd 4th, as:

A term applied to the action, discretion, etc., of public administrative officers, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.

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Congressman Steiger, speaking on the House Conference Report, said that the Committee bill contained provisions for ". . . the establishment of an independent occupational safety and health appeals commission to handle administrative adjudications." Leg. Hist., p. 1212.

Accordingly, I am unpersuaded by the unsupported assertion that the Commission is intended to perform as a "traditional court" and not as an agency.   I agree with the majority that Congress ". . . was aware of the impact that the Act would have on the business community and concerned about providing assurances to that community that fairness and due process be fully served." The fairness of this Commission must extend to those working persons whom the Act is designed to protect.   I do not believe that we are fair to them where   we fail to fulfill our obligation to review the record as a whole and to make findings based upon that record.

Any question concerning due process is laid to rest by the opportunity given the parties to respond to the issue as presented by the direction for review.   Respondent submitted nothing.   Had the submissions of the parties raised material questions of fact or credibility which would render inappropriate a final disposition on the record, the Commission could have ordered remand for the adducement of additional evidence.   No such questions were raised by the parties.   The invitation afforded the parties both the right of argument and an opportunity to adduce additional   evidence.   Since no genuine or material issue of fact was raised in response to the invitation, no additional hearing was ordered.   It is clear that due process requires no more.   Persian Gulf Outward Freight Conference v. Federal Maritime Commission, 375 F.2d 335, 340-341 (D.C. Cir. 1967); Producers Livestock Marketing Ass'n. v. U.S., 241 F.2d 192, 196 (10th Cir. 1957), aff'd., 356 U.S. 282 (1958); Outward Continental N.P.F. Conf. v. Federal Maritime Commission, 385 F.2d 981, 983, 984 (D.C. Cir. 1967).

As the court stated in Rodale Press, Inc. v. F.T.C., 407 F.2d 1252, (D.C. Cir. 1968):

Hence is is well settled that an agency may not change theories in midstream without giving respondents reasonable notice of the change . . .   The evil at which the statute strikes is not remedied by observing that the outcome would perhaps or even likely have been the same.   It is the opportunity to present argument under the new theory of violation which must be supplied.

407 F.2d at 1256-1257, emphasis in original.

Plainly, had the Trade Commission afforded respondents "the opportunity to present argument," all   rights would have been preserved and, presumably, the Commission's order would have been enforced.   The case was remanded for just that purpose.   It is precisely that opportunity that has been afforded the parties by this Commission in this case.

The majority is persuaded by the Secretary's attempt to analogize his function under the Act and the function of a prosecutor under criminal statutes.

Surely, it is enough to mention that this analogy fails to distinguish the marked difference between criminal and civil statutes and the requirements for their administration.   Although sections 17(e) and 17(f) of the Act are clearly criminal in nature, the balance of the Act, and specifically the enforcement provisions, are civil in nature.   Indeed, in Lance Roofing Company, Inc., et al. v. Hodgson, et al., 343 F.Supp. 685, (N.D. Ga., 1972), the Secretary submitted a brief in which a large portion of his argument was devoted to establishing the proposition that ". . . the provisions of the Act . . . are civil and not criminal in nature."

The court stated in Helvering v. Mitchell, 303 U.S. 391, 402 (1938):

That Congress provided a distinctly civil procedure for the collection [of a penalty] indicates clearly that it intended a civil, not a criminal sanction.   Civil procedure is incompatible with the accepted rules and guarantees governing criminal prosecutions.

I agree with the majority that: "Respondent's conduct was of such character as to be willful in the civil sense." I see no reason not to find what even my fellow members admit is on the record before them.   I find it disturbing that this Commission cannot bring itself to "find" what it sees.   However, as I do not find the penalty assessed by the majority to be inappropriate I concur in that.

  [The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C., et seq. (referred to as the Act) to review a "Citation for Serious Violation" and "Notification of Proposed Penalty" in the amount of $750.00 issued by the Secretary of Labor (referred to as the Secretary) pursuant to Section 9(a) and 10(a), respectively, of the Act.   The hearing was held on March 6, 1972, at Jackson, Mississippi.

Respondent was incorporated as a Mississippi corporation in 1954 (Tr. 58).   It is engaged as a general contractor primarily in the construction of commercial buildings, churches, schools, courtrooms, and dormitories (Tr. 40).   Respondent does work outside the State of Mississippi (Tr. 43), and is an "employer" affecting interstate commerce.

Respondent, during the past five years, has done a gross business of approximately two million dollars per year (Tr. 41).   During the period in issue, it was employing approximately 40 employees in all of its projects (Tr. 19).

The construction site herein involved consisted of erection of a six-floor building in the Alcorn A & M Campus, Lorman, Mississippi (Tr. 9, 45 through 48, T. Exhs. 1 through 4 and 6 through 8).

On or about October 3, 1971, respondent had an injury on this worksite resulting in the death of an employee.   The Secretary's Compliance Officer, on October 4 or 5, 1971, made a preliminary investigation as a result of that fatality. At that time, the respondent was pouring concrete in the erection of the fifth floor of the building with no boundary protection.   The Compliance Officer discussed the installation of a protective   boundary with the respondent's job superintendent (Tr. 9 & 10).   The Compliance Officer also discussed with his   supervisor the use of a wire rope in lieu of a guard rail and advised the job superintendent this would be adequate.   The superintendent agreed to install the protective wire rope (Tr. 9, 10, 21, & 22).

The Compliance Officer returned on November 10, 1971, to conduct a complete inspection of the site.   At that time, the sixth floor of the facility was being poured and only a portion of the perimeter contained a 3/8-inch fiber rope. The Compliance Officer questioned the job superintendent as to why the steel rope had not been installed around the entire perimeter.   The job superintendent stated he had discussed the installation of the cable with the president of the corporation and was advised that its installation was too costly in view of the bid price on the project (Tr. 10 & 11).   As the manila rope was approximately three feet from the edge, respondent's president considered it adequate protection (Tr. 61).

During the second inspection, the Compliance Officer observed approximately ten employees spreading and finishing concrete near the edge of the sixth-floor level with no boundary protection provided.   This area was approximately sixty feet above ground level (Tr. 10, 11,   15, 37; T. Exh. 2).   At that time respondent was pouring concrete by pumping machine although normal procedure was by bucket raised from ground level by crane operator (Tr. 49, 52 & 66).   The danger to workmen would have existed if the crane operator would have been careless when pouring by bucket or a workman lost his balance and fell over the edge (Tr. 65, 66 & 73).   If a workman fell from the sixth floor, he would have probably been killed or seriously injured (Tr. 78).   The crane operator used to raise the concrete   bucket was the same operator involved in the fatal accident.   The fatal accident resulted when the crane operator, in unloading materials swung the boom in the wrong direction striking a power line and a laborer was electrocuted (Tr. 73, 74, & 75).

As a result of the inspection, on November 11, 1971, the Secretary issued a citation for serious violation citing standard 1518.500(d)(1), and describing the alleged violation as "Workers were exposed to unguarded open-sided floor, approximately 60 feet above ground.   Thirteen workers were exposed to the hazard. This condition noted on November 10, 1971." The citation specified correction by November 10, 1971.   Within five days of the issuance of the citation, respondent had erected the post and wood railings in conformance with the requirements in the standard (Tr. 60 & 61).   On November 11, 1971, the Secretary proposed a penalty for the alleged serious violation in the amount of $750.00.

Respondent receives 27 per cent credit on its Mississippi Workmen's Compensation Insurance which represents the maximum credit allowable based upon safety record (Tr. 58).   The October 1971 fatality was the first fatality respondent had had since its existence.   (Tr. 32).


Respondent contests the Secretary's allegation that it committed a serious violation under the Act, and the amount of the civil penalty, if any, that should be assessed.

Section 5(a)(2) provides that each employer shall comply with Occupational Safety and Health Standards promulgated under the Act.

Section 17(b), as pertinent, provides that any employer   who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.00.

Section 17(j) as pertinent, provides that the Commission shall have authority to assess all civil penalties giving due consideration to the appropriateness of the penalty with respect to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.

Section 17(k), as pertinent, provides that a serious violation shall be deemed to exist if there is a ". . . substantial probability that death or serious physical harm could result from a condition which exists . . ." or is in use in a place of employment, unless the employer did not and could not with the existence of reasonable diligence, know of the violation.

Respondent's testimony was limited to its President who was not at the work site at the time of inspection. Respondent's superintendent did not appear and testify.   Respondent contends that its workmen exposure was limited to an area where the fall was approximately ten feet. Respondent's contention is disproved by actual photographs taken by the Compliance Officer during the inspection.

Respondent admits that had a workman fallen from the sixth floor of the project, there was substantial probability that death or serious physical harm could have resulted.   Respondent was aware of the situation as its superintendent was informally placed on notice during the October preliminary inspection and the situation was discussed by the superintendent with respondent's president.   The evidence shows that approximately ten employees were subjected to the hazard of an unguarded area with a possible fall of 50 to 60 feet. The Examiner must conclude that the condition must   be classified as a serious violation under the provisions of the Act.

This conclusion leaves for consideration the appropriateness of the penalty.   Subjecting ten employees to an area where one or more could have fallen 50 to 60 feet reflects the gravity of the violation and the Examiner, in determining the appropriateness of the penalty has weighed very heavily against respondent in considering this criterion.

The Compliance Officer during the inspection of the fatal fatality in October 1971, discussed with respondent's superintendent that boundary protection must be provided.   The superintendent discussed the requirement with respondent's president, and adequate protection was not provided until after the November 1971 inspection. The October 1971 fatality involved the same crane operator responsible for lifting the concrete materials for pouring the floors involved in the situation at hand.   The Examiner must conclude, under such circumstances, that the respondent had not shown good faith.

The October 1971 fatality was the first experienced by the respondent since its inception in 1954.   Respondent was receiving the maximum credit for reduction of its workmen's compensation premium under Mississippi law.   The Examiner has given recognition to respondent's safety history.

The respondent has grossed approximately $2,000,000.00 each year during the past five years.   Although there is some dispute about the number of employees, apparently it employed approximately 40 employees.   Although the record contains no comparative data, the Examiner concludes that respondent is of small to medium size, and that payment of a penalty as provided   under the Act would not create an undue financial hardship.

Considering all of the foregoing factors, the Examiner concludes that a penalty of $750.00 is reasonable under the circumstances.

   Hence, in concluding that the $750.00 is appropriate, the Examiner has given no weight to the method used by the Secretary.


Respondent committed a serious violation under the Act by failing to conform with the provisions of 29 C.F.R. 1518.500(d)(1), and a penalty in the amount of $750.00 is appropriate taking into consideration the size of respondent's business, the gravity of the violation, good faith and history of previous violations.


That the Secretary's Citation for Serious Violation is affirmed and a penalty of $750.00 be assessed against the respondent.