UNDERHILL CONSTRUCTION CORP. & DIC CONCRETE CORP., d/b/a DIC-UNDERHILL, A JOINT VENTURE

OSHRC Docket No. 2232

Occupational Safety and Health Review Commission

February 21, 1975

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

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On October 10, 1973, Judge Joseph Chodes issued his decision in this case, affirming the Secretary of Labor's citation for serious violation and assessing a penalty of $700.

On November 9, 1973, the Commission directed that the decision and order of the Judge be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   651 et seq., hereinafter referred to as "the Act").

Respondents are construction contractors engaged in a joint venture.   On February 5, 1973, both respondents were issued a single citation that alleged a serious violation of section 5(a)(2) of the Act for failing to comply with the standards appearing at 29 CFR §   1926.500(d)(1) and 29 CFR §   1926.28(a).   A penalty of $700 was proposed by the Secretary of Labor.

The standard at 29 CFR §   1926.500(d)(1) requires that opensided floors, platforms, and runways six feet or more above an adjacent floor or ground level be guarded by a standard railing. In his decision, Judge Chodes held that respondents did not fail to comply with this standard because the evidence showed   [*2]   that the employees could not have performed their work with the railings in place.

The standard at 29 CFR §   1926.28(a) requires the use of appropriate personal protective equirement where there is exposure to hazardous conditions.   Judge Chodes held that respondents failed to comply with this standard by not providing its employees with safety belts and lanyards while working on the ninth floor of a building under construction.

Review was directed on the issues of whether respondent failed to comply with 29 CFR §   1926.500(d)(1) and whether the   standard at 29 CFR §   1926.28(a) is a valid occupational safety and health standard.

With regard to the alleged failure to comply with 29 CFR §   1926.500(d)(1), we conclude that W. B. Meredith, II, No. 810 (October 24, 1972), aff'd by the Commission, (June 7, 1974), is controlling.   Meredith holds that there is no violation of the railing standard when the railings much be removed in order to perform work.

As to the alleged failure to comply with 29 CFR §   1926.28(a), the Commission's recent decisions in Hoffman Constr. Co., No 644 (January 31, 1975); Carpenter Rigging & Contracting Constr. Co., No. 1399 (February [*3]   4, 1975) and Eichleay Corp., No. 2610 (February 20, 1975) are controlling.   In these cases, a majority of the Commission held that the standard at 29 CFR §   1926.28(a) is a valid and enforceable occupational safety and health standard.

Thus, we conclude that the Judge correctly disposed of all material issues in this case.   We further specifically adopt the Judge's penalty assessment.

Accordingly, it is ORDERED that the Judge's decision and order be affirmed and that respondents be assessed a penalty of $700.  

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

  MORAN, CHAIRMAN, concurring in part and dissenting in part: The citation in this case resulted from an investigation by complainant that was made following a fatal accident that occurred on December 28, 1972, at a construction site in Far Rockaway, New York.   On the day of the fatal accident, two of respondent's employees were engaged in stacking plywood sheets and placing them in a sling while working at the edge of the ninth floor of a building under construction.   After slinging these loads, the workers would signal a crane operator who hoisted these stacks of plywood sheets up to the 11th floor As one of these loads was being [*4]   hoisted, it slid in the direction of one of the employees who had failed to move behind the load after it was hooked. While trying to avoid being hit by the load, the employee stepped off the edge of the building and fell nine stories to his death.   There were no perimeter guardrails on the ninth floor, and the employees were not wearing safety belts or other protective equipment.   Respondent was subsequently issued a citation   alleging violations of 29 C.F.R. §   1926.500(d)(1) and 29 C.F.R. §   1926.28(a).

While I concur with the Commission's affirmance of the Judge's decision that noncompliance with the standard at §   1926.500(d)(1) did not constitute a violation of the Act since the hoisting operation could not have been performed with the peripheral guarding in place, I must disagree with the affirmance of the portion of his decision that finds respondent in violation under the §   1926.28(a) charge as the result of a failure to provide the two employees with personal protective equipment.

I do so because I believe that 29 C.F.R. §   1926.28(a) failed to adequately inform respondent that safety belts are required to be worn for a hoisting operation.

The standard provides:   [*5]  

The employer is responsible for requiring the wearing of appropriate protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.   (Emphasis added.) n1

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n1 On December 16, 1972, shortly before the accident that was the basis of the citation in this case, complainant published revisions of §   1926.28(a) and other construction standards.   In this revision, and "and" in §   1926.28(a) (underlined in the text above) was change to "or." This change does not appear in any earlier publication of regulations in the Federal Register.   Complainant stated that the purpose of this revision was to correct typographical and clerical errors in the text of the standards.   He stated further that since the revision did not make substantive changes in the standards, it was not necessary to provide notice of proposed rulemaking, opportunity for public participation therein, nor any delay in effective date (37 Fed. Reg. 27503, 1972).

The revision of §   1926.28(a), however, is clearly substantive.   With the use of the conjunctive "and," a violation could be established only upon proof of both (1) an exposure to a hazardous condition requiring the use of personal protective equipment, and (2) the failure to use this equipment when its use is required in other parts of §   1926 in order to reduce the hazard. When "or" is used, proof of either one or the other would be sufficient to establish a violation.   Thus, under the pre-December 16, 1972, version of the standard, no violation could be established unless a specific item of protective equipment was not used when a subpart of 1926 required its use.   In addition, the complainant would have to demonstrate that there was an exposure to a hazardous condition when it was not being used.   In the later version, only failure to have "appropriate" personal protective equipment where there is an exposure to a hazardous condition has to be shown.

As the change made by the December 16, 1972, publication is a substantive one, the new regulation has not been validly promulgated, since the procedures set out in 29 U.S.C. §   655(b) for the promulgation, modification, or revocation of a standard were not followed.   This section requires notice of a proposed rule and affords opportunity for public comment and hearing.   Since the subsequent publication is invalid, the pre-December 16, 1972, version which uses the conjunctive "and" remains in effect.

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  One subpart of the standard, §   1926.104, et seq., is concerned with safety belts but its terms relate only to the capability requirements of such equipment if used.   Nothing else in that standard indicates when and under what circumstances safety belts must be worn.

Safety belts were available for use by employees at the worksite.   However, two employees of respondent, both of whom had long experience in construction work, testified that they had never seen safety belts worn by workers engaged in a hoisting operation.   The proper procedure to avoid accidents, and one in which employees are instructed, they testified, is to move behind the load once it is hooked. The fatality occurred because these instructions were not followed.

It was the opinion of the two employee witnesses that use of safety belts would not promote safety for the hoisting operation.   They testified that the use of safety belts and lanyards in this operation would increase the risk of death or injury because of the danger that the crane line would catch the safety line or that the lines would become tangled and perhaps [*7]   be tripped over by co-workers.   There was also testimony that their use would not permit the freedom of movement necessary to perform this task, and that in any event, the length of the line that would be necessary because of the place the men were working and the work being performed, would be so long it would cause severe injuries in stopping a fall.

Complainant's inspectors offered various solutions to the dilemmas posed by the use of safety belts. There was a suggestion that a cable could be placed around the perimeter of the floor above the level of the load being hoisted and that a safety belt and lanyard could be hooked to the cable. This would permit the worker, it was contended, to move freely along the cable and the length of the line would be short enough so that a   worker could not fall more than two feet. Respondent argued that installing such a cable would expose employees to a greater hazard for a longer period than the hoisting operation, and in any event, would not obviate the problem of the safety lines becoming entangled nor eliminate the risk of the lines being snagged by a load.

Without indicating any opinion as to the merit of the inspector's suggestion,   [*8]   I cannot conclude that the standard's broad wording gave respondent adequate notice that this device was the appropriate protective equipment he was required to install for a hoisting operation.   The testimony of respondent's employees indicates not only that use of such a device was not common practice in the industry, but that in their long experience, they had never seen safety belts used by workers assisting in hoisting. Moreover, the feasibility of the suggested means of compliance is, to say the least, not obvious.   Thus, the standard, read in the light of common understanding and practice, is not sufficiently definite to be enforceable against respondent.

[The Judge's decision referred to herein follows]

CHODES, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC et seq., hereafter called the Act), in which the Respondent is conesting a Citation issued by the Complainant against the Respondents under the authority vested in Complainant by Section 9(a) of the Act.   The Citation states that as the result of the inspection of a workplace under the ownership, operation or control of the Respondents, located at Beach [*9]   9th Street, Seagirt Boulevard, Far Rockaway, New York, the Respondent is alleged to have violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on February 5, 1973, alleges that the violation resulted from a failure to comply with certain of the standards promulgated by the Secretary by publication in the Federal Register and cofified in 29 CFR Part 1926.   The standards prescribed by Part 1926 were adopted as standards   under the Occupational Safety and Health Act at 29 CFR 1910.12.

Specifically, the Respondents were charged with serious violation of the standards set forth at 29 CFR 1926.500(d)(1) which provides:

(d) Guarding of open-sided floors platforms, and runways. (1) 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, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.   The railing shall be provided with a standard toe-board wherever,   [*10]   beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

and 29 CFR 1926.28(a) which provides:

Personal protective equipment. (a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondents were notified by letter dated February 5, 1973, from J. Epps, Area Director of the Garden City, New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty for the alleged serious violation in the amount of $700.

After Respondents contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at New York, New York, on July 6, 1973.

STIPULATIONS

1.   The Respondent, Underhill Construction Corp., is a New York corporation with its principal office located in Bayside, New York.

2.   The Respondent,   [*11]   Dic Concrete Corp., is a New York corporation with its principal office located in Elmont, New York.

3.   The Respondents traded as Dic-Underhill, a Joint Venture, with an office in Bayside, New York.

  4.   Respondents regularly use cement imported from Norway, nails imported from Japan, cranes manufactured in Wisconsin, trucks manufactured in Detroit, Michigan, and gasoline produced outside the State of New York.

5.   In the year 1972 the Respondents had a net worth in excess of two million dollars.

6.   During 1973 the Respondents had a daily average of more than a thousand employees.

7.   The Respondents were served with the Citation and Notification of Proposed Penalty which are the subject of this proceeding and the Citation was posted within three days after receipt.

8.   On December 28, 1972, Francesca Bacarella, an employee of the Respondents fell from the ninth floor of the Roy Reuther Houses at the workplace referred to under the heading "Statement of the Case" to the ground level.

MOTIONS

1.   Prior to the hearing, the Complainant's motion to amend the Complaint by adding allegations that the Respondent violated 29 CFR 1926.104 and 29 CFR 1926.105(a) was denied [*12]   in an order dated June 20, 1973.   The Complainant's brief on this point, mailed on August 24, 1973, has been noted, but in the opinion of the undersigned, no change is indicated in the order of June 20, 1973.

2.   The Complainant also made a motion after the hearing to amend the Complaint to conform to the proof at the hearing that the alleged violation involved in this case took place on December 28, 1972.   This motion is granted.

SUMMARY OF EVIDENCE

On December 28, 1972, at the Roy Reuther Housing Project, the workplace involved therein, there were two of the Respondent's employees, Frank Bacarella and Stanley Michaels, working on the ninth floor slinging up a load of sheets of plywood (4 feet by 8 feet) to the eleventh floor. To accomplish this the employees had to put the sheets of plywood together at the edge of the building, wrap two slings (each 25 feet of 1/2 inch cable)   around the load of plywood and signal the operator of the crane who would tighten up on the sling and take the load to the floor above where the plywood was needed to get ready for another pouring of cement.   Frank Bacarella signalled the crane man to take the load up, the load began to tighten [*13]   and slide out at an angle and twist toward him.   In trying to avoid the load, Mr. Bacarella, who was in front of the load, walked off the edge of the building and fell nine stories to the ground, a distance of about 72 feet. There was no permeter guarding on the ninth floor and Mr. Bacarella was not wearing a safety belt or other protective equipment, although safety belts were available in the tool room.

Nicholas Venezia, the Respondent's general labor foreman testified that when Mr. Bacarella attached the slings to the load of plywood he would be a couple of feet off the edge of the building.   He would then have to pull up the loose cable extension from the crane and hook it on the load. He then signals the crane operator to take up the slack and when the slack is out, his job is done and he then "belongs behind the load" to guide the load out while the crane takes it and lands it on a floor above.   The workers are instructed to get behind the load once it's hooked. n1 The entire operation of hoisting the load takes only two or three minutes.   When the accident happened Mr. Bacarella was in the wrong spot because "he didn't belong on the edge."

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n1 However, Stanley Michaels, the employee who was working with Bacarella when he fell, stated that going to about two feet from the edge of the floor to signal the operator of the crane was a normal part of his job.

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In addition to Mr. Bacarella and Mr. Michaels there were about nine employees of the Respondents on the ninth floor working under a foreman.   In the course of their work the men would have to go all over the floor (about 50 feet by 100 feet,) including the edge of the floor to strip, clean and stack forms.

Mr. Venezia testified that he couldn't see how the job of getting the loads of plywood sheets to the upper floors could be accomplished if there was perimeter guarding in place.   The stacks of plywood which extended beyond the floor edges make it impossible to have guarding at the edge and there was also the   possibility that the guarding would be hooked as the crane was lifting the load out.   To move the load it would be necessary to remove any perimeter protection that was set up.   Mr. Michaels also testified that to do [*15]   the work of lifting the load to the floor above, any perimeter protection would have to be removed.

Mr. Venezia and Mr. Michaels were also of the view that the use of safety belts with lanyards would be in the way of the worker.   The worker would not be able to tie off on an outside column as it was too near the edge. If he tied off on an inside column he would have to have a 25-foot line and if he fell off, he would be torn in half.   Also, there was the danger of the lines getting tangled and being tripped over by co-workers.   However, Mr. Venezia stated that some type of harness with a safety belt which would prevent falling more than five or ten feet would be alright.

Ernest C. Wilson, the Compliance Officer of the Occupational Safety and Health Administration, Department of Labor, who inspected the worksite, testified that appropriate personal protective equipment for a worker at the edge of the ninth floor signalling to a crane man was a safety belt and lanyard. A cable could be placed around the perimeter of the structure above the level that the plywood sheets are stacked, tied to the top of a column (shown on Exhibit C-1) at whatever height desired, and the safety belt [*16]   or lanyard could be hooked to the cable. This would permit the worker to move freely and maneuver along the cable with an overhang of about two feet and if he fell he would not fall more than two feet.

Mr. Wilson also testified that perimeter protection could be provided and remain in place when there was no hoisting taking place, but the protection would have to be removed, possibly on a hinge, during the time that material was being hoisted.   To attach loops on the load of plywood which extends over the floor's edge could not be performed where there is peripheral protection, so that other safety measures would have to be taken.

Peter Richardson, also a Compliance Officer, testified that life lines could be used at the floor's edge by clamping the life lines to two outside columns, at a point high enough so it would not catch the load as it is going out.   The lanyard which is attached to the safety belt is then hooked onto the lifeline.   A lifeline could   also be attached to an inside column but this would restrict his movements.

Mr. Wilson recommended that the alleged violation be considered serious because serious bodily harm or death could occur if an employee fell [*17]   from the ninth floor. The Respondent knew of the alleged violation because a supervisor could see from the ground floor that there was no peripheral guarding. Mr. Wilson recommended an unadjusted penalty of $1,000.   The guidelines under which proposed penalties are assessed permitted a maximum allowance of 20 percent for the Respondent's good faith.   The allowance recommended was 10 percent because, while the Respondent did follow safety rules, such as requiring its employees to wear hard hats, the Respondent knew of the standards concerning the need for guarding and was then contesting such a case.   No allowance was made for the size of the Respondent because it had more than a hundred employees.   A 20 percent allowance was made for history of previous violations because there was no record in the Long Island area office of any safety violations by the Respondent.   Thus the penalty proposed was $1000 less 30% or $700.

DISCUSSION

On December 28, 1972, there were approximately eleven of the Respondent's employees working on the ninth floor of a building that was a part of a housing project.   Although the floor was opensided, there was no perimeter guarding and none of the employees [*18]   were wearing any personal protective equipment, such as safety belts. About nine of the employees were working all over the floor, including the edge, stripping, cleaning and stacking forms.   Two of the employees were working at the edge of the floor guiding a crane operator in slinging up stacks of plywood sheets to the eleventh floor.

The issue of whether the nine employees who were not engaged in slinging the stacks of plywood were exposed to any hazard in violation of the pertinent standards is not before the Judge because the Citation issued in this case is limited to two employees engaged in assisting with the aid of a crane, in transporting plywood forms from the ninth to the eleventh floor. Whether the Respondents were in violation of 29 CFR   1926.500(d)(1) insofar as the two employees engaged in guiding the crane in the slinging of loads to the upper floor is questionable because the evidence indicates that the work could not have been performed with peripheral guarding in place.

In the case of Secretary of Labor v. W. B. Meridith II.,   the following which appears to be apropos in the instant case:

While there can be no question concerning the absence of the railings at these two openings at the time of the inspection, I conclude that it would be unreasonable to hold that their absence constituted a violation of the standards in question when it was clearly shown that they had to be removed in order to perform the work required.

The case of Secretary of Labor v. Tishman Realty & Construction Co., Inc.,   The citation was affirmed, but the evidence showed that on the date of inspection the boom was not in use so that perimeter protection could have been in place to protect employees exposed to the hazard. On December 8, 1972, the date the violation is alleged to have occurred there was actual hoisting of loads which could not be accomplished if peripheral guarding was in place.

Even though the Respondents were not in violation of 29 CFR 1926.500(d)(1)   [*20]   insofar as the two employees who were hoisting stacks of plywood sheets are concerned, the Respondents were, in the opinion of the undersigned, in violation of 29 CFR 1926.28(a) for failure to provide the two employees with personal protective equipment, such as safety belts. The evidence establishes that the work was inherently dangerous in that is had to be performed very close to the outside edge of the floor. There is testimony from two of the Respondents' employees that the use of safety belts would be impractical, restrictive and dangerous.   On the other hand, two of the Complainant's Compliance Officers testified that use of protective equipment was feasible and that there were several ways in which this could be done, including the clamping of life lines between columns and hooking on the lanyard to which the safety belt is attached.

  Solving problems relating to the type and manner of utilizing personal protective equipment is the responsibility of the employer where there are reasonably attainable solutions.   This is necessary if the purpose of the Act as declared in section 2(b) "to assure so far as possible every working man and woman in the Nation safe and [*21]   healthful working conditions" is to be achieved.   Respondents argue that to provide personal protective equipment would take much longer and expose employees to danger for a longer period than the performance of the job of hoisting the loads, which takes only a few minutes.   This argument is not persuasive in the light of the tragic accident which took place during the few minutes that the hoisting was taking place.   It may well be that a longer time would be required to devise and set up a method for utilizing safety belts than the time needed to perform the task at hand, but certainly this is a price which must be paid to ensure a safe workplace. There is no evidence that setting up the means for utilizing safety belts would be hazardous as suggested by the Respondents' brief.

Respondent argues that 29 CFR 1926.28(a) is unenforceable as a standard because it is a general provision which requires a specific standard to make it effective and in support of its position cites Secretary of Labor v. Edward M. Ream, Secretary of Labor v. Vaughn Roofing Co.,

The Ream case, decided by Judge Gold, certainly appears to sustain Respondents'   [*22]   position since Judge Gold specifically stated that the standard set forth at 29 CFR 1926.28(a) "is a general provision which is adjunctive in nature" and that standing-alone it has had no effect as a standard.   However, the decision is under review by the Commission and does not at this time have the force of a binding precedent.   Similarly, Judge Kennedy, in the Vaughn case stated that the language of 29 CFR 1926.28(a) was "so broad as to be meaningless." But, here again, the decision was called for review by the Commission.

In Secretary of Labor v. Grayson Lumber Co., Inc.,

. . . personal protective equipment for . . . extremities . . . shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment . . . encountered in a   manner capable of causing injury or impairment in the function of any part of the body through . . . physical contact.

The Respondent was charged with permitting its employees to perform "foot hazardous tasks" without wearing foot (toe) protection.   [*23]   The majority opinion of the Commission sustained the vacating of this item of the citation on the ground that the Secretary had failed to prove that "hazards of processes or environment" in the workplace of such a nature as to necessitate the use of toe protection.   However, Chairman Moran, in a concurring opinion, was emphatically of the opinion that the terminology of the standard, to wit "personal protective equipment for . . . extremities" was so broad as to be meaningless.   The conclusion to be drawn from this case is that a majority of the Commission does not view language in a standard that requires "personal protective equipment" to protect against hazardous conditions as unenforceable.

In Secretary of Labor v. Continental Heller Corporation   While the question of whether the standard was so vague as to be unenforceable was not discussed, Judge Cronin's decision became the final order of the Commission on July 20, 1973.

The weight of authority appears to be that 29 CFR 1926.28(a) is not so general or vague as to be unenforceable [*24]   if the facts establish a situation where protective equipment is necessary to avoid exposure to hazardous conditions.

With respect to the proposed penalty of $700, the undersigned is in general agreement with the criteria and rationale of the Compliance Officer in arriving at his recommended figure, except that in considering the factor of previous history, the area taken into consideration, namely, the geographic limits of the Long Island area office, is too restrictive.   The criteria for a serious violation as defined in Section 17(k) of the Act are met in that there was a substantial probability that death or serious physical harm could result from the working conditions shown to exist, and the Respondents, through their general labor foreman Mr. Venezia, knew of the presence of the violation.   On balance,   the proposed penalty is considered to be not inappropriate.

FINDINGS OF FACT

On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, substantial evidence supports the following findings [*25]   of fact:

1.   Paragraph 1 through 8 of the Stipulations are incorporated herein as findings of fact.

2.   On February 5, 1973, the Complainant issued to the Respondents a Citation for serious violation of the standards set forth at 29 CFR 1926.500(d)(1) and 29 CFR 1926.28(a), for failure to provide peripheral protection and the wearing of appropriate personal protective equipment on the ninth floor zone one of the Roy Reuther Houses at the workplace referred to above under the heading "Statement of the Case."

3.   On February 5, 1973, the Respondents were notified by the Complainant of a proposed penalty of $700 for the serious violation of the standards referred to in paragraph (2) above.

4.   On February 13, 1973, the Respondents filed with the Complainant a notice of its intention to contest the Citation and proposed penalty referred to in paragraphs (2)(3) above.

5.   On December 28, 1972, two of the Respondents' employees were near the edge of the ninth floor at the workplace referred to in paragraph (2) above stacking sheets of plywood and, with the aid of a crane, hoisting the stacks to the eleventh floor.

6.   The employees referred to in paragraph (5) above were working without [*26]   personal protective equipment.

7.   The work the two employees referred to in paragraph (5) above were doing exposed them to hazardous conditions requiring personal protective equipment, such as safety belts, to reduce the hazards to the the employees.

8.   The Respondents knew, or with the exercise of reasonable diligence could have known, of the presence of the facts recited   in paragraphs (5), (6) and (7) above, which constituted a serious violation of 29 CFR 1926.28(a).

9.   Giving due consideration to the size of the Respondents' business, the gravity of the violation, the good faith of the Respondents and the history of previous violations, the appropriate penalty for serious violation of 29 CFR 1926.28(a) is $700.

CONCLUSIONS OF LAW

1.   The Respondents at all times material hereto were engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2.   The Respondents at all times material hereto were subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3.   Respondents [*27]   violated the Occupational Safety and Health standard set forth at 29 CFR 1926.28(a) and is assessed a penalty of $700.

ORDER

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

1.   The Citation issued on February 5, 1973, for serious violation of 29 CFR 1926.28(a) and the penalty proposed by the Complainant of $700 are affirmed.