CHAMBERLAIN MANUFACTURING CORPORATION

OSHRC Docket No. 241

Occupational Safety and Health Review Commission

January 7, 1975

[*1]

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

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order and Chairman Moran's separate order directing review of a decision rendered by Judge David G. Oringer. Judge Oringer affirmed nine and vacated three alleged non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The Judge assessed an aggregate civil penalty of $1,292.50.

We have reviewed the entire record and find no error in the Judge's disposition.

Accordingly it is ORDERED that the Judge's decision be and the same is hereby affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case. I am in agreement with the amount of the penalties assessed, but I am constrained to comment on the Judge's method of penalty assessment. In assessing penalties, it is necessary to consider the factors set out in section 17(j) n1 of the Act and the Judge has considered these factors. He took official notice of the fact that penalties proposed for similar violations in other regions were smaller than those proposed [*2] in the instant case and, as a result, he reduced the Secretary's proposed penalty of $1,822.50 and assessed a penalty of $1,292.50 to achieve "national consistency."

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n1 Section 17(j) reads as follows:

The Commission shall have the authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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The Act does not, however, either implicity or explicity, require national uniformity of the dollar amount assessed as a penalty. On the contrary, the four statutory considerations of section 17(j) of the Act may compel disparity in different cases involving similar violations because of the individualized nature of size, good faith, and history of a particular employer. The gravity of the same violation may vary in different cases, also. No matter how desirable uniformity or [*3] "national consistency" might be theoretically, n2 the statutory criteria of section 17(j) of the Act as applied to the facts of an individual case may render unattainable the goal of "national consistency" as to the precise dollar amount of a penalty. To hold otherwise could result in "national consistency" at the expense of an objective consideration of the section 17(j) criteria.

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n2 The difficulties attendant to establishing procedures for the assessment of penalties to achieve national consistency are many. See Morton v. Delta Mining Co., 495 F.2d 38 (3d Cir. 1974).

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I approve of the effort of the Judge to establish national consistency in assessing penalties. To that end, I believe that we have now decided enough cases to have established at least some guidelines as to a range of penalties for certain common violations. n3

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n3 In order for the public and the Commission to derive the most benefit from precedent where the Commission's discretionary power to assess penalties has been exercised, a statement of general policy by the full Commission on a range of penalties for common violations would be useful. These guidelines as to a range of penalties should not be rigid guidelines of the kind that would suffer from the defects described in Nacirema Operating Co., No. 4 (February 7, 1972).

[*4]

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Upon a careful review of the Judge's decision, I agree with the considerations given to the gravity of the violations, size of respondent's business, and prior history of violation. Greater weight should be given, however, to good faith, a "broad tent." Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438, at 442 n.19 (8th Cir. 1973). The evidence of record demonstrates that the respondent initiated means to correct and prevent hazardous situations at its worksite and carried on a comprehensive accident's preventive program. The evidence further demonstrates that the respondent's safety program contributed to a decrease in the frequency of accidents. These actions can only be construed as a good faith effort on the part of the employer to assure his employees a safe and healthful workplace. In view of these findings, I agree that the Judge's assessment of a penalty in the total amount of $1,292.50 should be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: It has taken the Commission more than a year and a half to conclude that the Judge correctly decided this case. [*5] Such a delay is wrong and unnecessary, and it could explain the Commission's reluctance to take corrective action when there are unwarranted delays in the proceedings below.

Congress made it clear that, in the absence of exceptional circumstances, each citation would be issued within 72 hours after detection of a violation by an inspector. Since the record in this case reflects a delay more than five times greater than Congress allowed and fails to show any exceptional circumstances, I would vacate the citations for the reasons I expressed in Secretary v. Plastering, Incorporated, 8 OSAHRC 150 (1974), and Secretary v. Advanced Air Conditioning, Inc., 7 OSAHRC 736 (1974).

Furthermore, the Commission errs in holding that the respondent violated 29 U.S.C. 654(a)(2) by failing to comply with 29 C.F.R. 1910.179(1)(3)(iii)(a) which requires the discarding of crane hooks "with cracks or having more than 15 percent in excess of normal throat opening or more than 10 degrees twist from the plane of the unbent hook." The citation averred that this standard was violated because one of the respondent's hoists was equipped with a defective and distorted hook.

The government inspector [*6] testified that he "eyeballed" the hook to determine that it was defective rather than making any actual measurements. He visually observed a "slight twist" in the hook but rendered no opinion on the degree of the twist. In regard to the throat opening, he testified as follows:

. . . This hook appeared to be a Size 24 hook. And on a Size 24 hook your throat clearance is one and one-eighth inch (Emphasis added).

He also stated that the 15% allowable deviation for such a normal throat opening would be about one-sixth of an inch. He concluded that the deviation was excessive because he could detect the distortion with his naked eye and a one-sixth of an inch distortion "wouldn't even be recognizable by the naked eye." In his opinion, there was about a 30% distortion. When related to the normal opening, this equates to about one-third of an inch.

The only other evidence concerning the condition of the hook was the testimony of the respondent's safety manager. Based on his 18 years of safety experience, he expressed the opinion that the hook "was perfectly safe to use."

There is no evidence that the hook was cracked or that the twist therein exceeded 10 degrees. [*7] Therefore, the complainant's case depends on whether the evidence establishes that the throat opening was excessive.

The validity of an "eyeball" estimate to establish a violation that hinges on something as minuscule as one-sixth of an inch is highly questionable. However, considering the doubtful validity of such an estimate along with the inspector's uncertainty as to the size of the hook, it is abundantly clear that the complainant has not established the violation by a preponderance of the evidence as required. See Secretary v. Armor Elevator Company 5 OSAHRC 260 (1973).

Finally, I disagree with the assertion in the concurring opinion that the statutory criteria in 29 U.S.C. 666(i) "may compel disparity in different cases involving similar violations." Parity in penalties is usually not established by assessing mathematically identical penalties in cases involving the same violations. The assessment of identical penalties on that basis may in itself create disparate penalties. See Policies and Standards for Sentencing Formulated by the District of Columbia Sentencing Institute, 1960, 27 F.R.D. 389, 390-391 (1961). Just penalties are assessed by tailoring [*8] penalty assessments to fit the facts in each individual case. This requires due consideration of all the pertinent facts and circumstances therein which are seldom exactly the same in any two cases. See Secretary v. Eastwind, Inc., 11 OSAHRC 433 (1974) (dissenting opinion).

[The Judge's decision referred to herein follows]

ORINGER, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citations allege that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at East Fourth & Esther Street, Waterloo, Iowa, and described as follows: "manufacture of refrigerator shelves, also projectile & warheads for government," the Respondent has 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 Respondent, on November 1, 1971, was issued five Citations for [*9] twelve non-serious items. Subsequent thereto and prior to the trial of the action, the Secretary rescinded No. 6 of the Citation and the penalty proposed therefore. At the time of the trial the Respondent stipulated that the violation alleged in Item 7, and the penalty proposed therefore, were proper, and did not contest that item or the penalty proposed therefore. The Respondent, at the time of trial, contested Items 1, 2, and 4, of Citation No. 1, Item No. 5, of Citation No. 2, and Item No. 12, of Citation No. 5. It did not contest the existence of the violations alleged in Items 3, 8, 9, 10 and 11. The Respondent contested the penalties in Items numbered 1 through 5, and in Items numbered 8 through 12, all inclusive. The alleged violations which the Respondent contested are listed below:

Citation No. 1 -- Item #1 -- 1910.179(m)(1)(ii) -- 1910.179(m)(1)(ii)

Item #2 -- 1910.179(L)(3)(iii)(a)

Item #4 -- 1910.324(e)(2)(ii)

Citation No. 2 -- Item #5 -- 1910.242(b) -- 1910.242(b)

Citation No. 5 -- Item #12 -- 1910.22(a)(1)

The Citations, which were issued on November 1, 1971, allege that the violations contested by the Respondent result from a failure to comply [*10] with standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR 1910.179(m)(1)(ii), 29 CFR 190.179(L)(3)(iii)(a), 29 CFR 1910.324(e)(2)(ii), 29 CFR 1910.242(b) and 29 CFR 1910.22(a)(1).

The descriptions of the alleged violations contested by the Respondent, contained in the said Citations, state as follows:

Citation No. 1 -- Item #1 -- Steel stores North of Bldg. U. Cable on hoist shows a number of broken and frayed outside wires.

Bldg. K. #229 Cleaning Tank. Cable on hoist shows a number of broken and frayed outside wires.

Item #2 -- Dept. D-13. Defective and distorted hook on hoist over cleaning tank.

Item #4 -- Outside East of Shipping & Receiving. Conduit passing from pump room to outside not equipped with a seal.

Citation No. 2 -- Item #5 -- Maintenance Shop. Air pressure on hose used for cleaning measured over 30 lbs. per square inch.

Area E-13. Air pressure on hose used for cleaning measured over 30 lbs. per square inch.

Citation No. 5 -- Item #12 -- Carpenter shop #107 Radial Saw. Poor housekeeping in saw area. Accumulated sawdust varied in depth of one of two feet.

The Citation, which was issued on November 1, 1971, [*11] alleges that the violation results from a failure to comply with a standard promulgated by the Secretary by publication in the Federal Register, and codified in 29 CFR 1910.

The standards allegedly violated, and contested by the Respondent read as follows:

29 CFR 1910.179(m) Rope inspection --

(1) Running ropes. A thorough inspection of all ropes shall be made at least once a month and a full written, dated, and signed report of rope condition kept on file where readily available to appointed personnel. Any deterioration, resulting in appreciable loss of original strength, such as described below, shall be carefully noted and determination made as to whether further use of the rope would constitute a safety hazard:

(ii) A number of broken outside wires and the degree of distribution or concentration of such broken wires.

29 CFR 1910.179(L) Maintenance

(3) Adjustments and repairs

(iii) Repairs or replacements shall be provided promptly as needed for safe operation. The following are examples:

(a) Crane hooks showing defects described in paragraph (j)(2)(iv) of this section shall be discarded. Repairs by welding or reshaping are not generally recommended. If such [*12] repairs are attempted they shall only be done under competent supervision and the hook shall be tested to the load requirements of paragraph (k)(2) of this section before further use.

29 CFR 1910.324(e) Sealing and drainage. Seals are provided in conduit and cable systems to prevent the passage of gases, vapors or flames from one portion of the electrical installation to another through the conduit. Such communication through Type MI cable is inherently prevented by construction of the cable, but sealing compound is used in cable termination fittings to exclude moisture and other fluids from the cable insulation, and shall be of a type approved for the conditions of use. Seals in conduit and cable systems shall conform to:

(2) Class I, Division 2. In Class I, Division 2 locations, seals shall be located as provided in this subparagraph.

(ii) In each conduit run passing from the Class I, Division 2 hazardous area into a nonhazardous area. The sealing fitting may be located on either side of the boundary of such hazardous area, but shall be so designed and installed that any gases or vapors which may enter the conduit system, within the Division 2 hazardous area, will not enter [*13] or be communicated to the conduit beyond the seal. Rigid conduit shall be used between the seal fitting and the point at which the conduit leaves the hazardous area, and a threaded connection shall be used at the sealing fitting. There shall be no union, coupling, box or fitting in the conduit between the sealing fitting and the point at which the conduit leaves the hazardous area.

29 CFR 1910.242 Hand and portable powered tools and equipment, general.

(b) Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.

29 CFR 1910.25(a) Housekeeping.

(1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

A Notification of Proposed Penalty was issued on November 1, 1971. An amended Notification of Proposed Penalty was issued on November 10, 1971, setting forth the penalties proposed, and wherein the Secretary rescinded the penalty for Item #6 of the Citation. By separate letter the Secretary rescinded Item #6 of the Citation.

Pursuant to the [*14] provisions of Section 10(a) of the Act, the penalties set forth below were proposed by the Complainant, based on the above Citations, and the Respondent was notified thereof by letter dated November 1, 1971, from Mr. Warren Wright, Area Director, of the Omaha, Nebraska area, Occupational Safety and Health Administration, U.S. Department of Labor, of proposed penalties for the violations alleged in the total amount of $1,687.50.

At the time of trial, the Respondent withdrew his contest to Item #7, of Citation No. 3, as well as the penalty proposed therefore.

The Respondent, at the trial of the action, in addition to contesting five (5) items of the Citations, as aforesaid, also contested the following penalties:

Citation Number

Item Number

Proposed Penalty

1

 1

$270.00

1

 2

270.00

1

 3

 90.00

1

 4

 90.00

2

 5

270.00

4

 8

180.00

4

 9

 90.00

4

10

135.00

4

11

180.00

5

12

112.50

The Respondent served notice of intention to contest the Citations and proposed penalties in a letter, dated November 23, 1971. This cause was referred to the Occupational Safety and Health Review Commission pursuant to Section 10(c) of the Act on February 11, 1972. [*15]

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Kansas City, Missouri, on April 17, 1972.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citations, Notification of Proposed Penalties, notice of contest, pleadings, representations and admissions of the parties, it is concluded that substantial evidence on the record considered as a whole supports the following

FINDINGS OF FACT

1. The Respondent, Chamberlain Manufacturing Corporation, is an Iowa Corporation with its principal office located at 845 Larch Avenue, Elmhurst, Illinois. The Respondent has installations in more than one State of the Union. At the time of the inspection conducted on October 13, 14 and 15, 1971, the average number of employees at the Respondent's Waterloo Division, was 625 (Complainant's Exhibit #1).

2. The Respondent at it's Waterloo plant, is engaged in the manufacture of ammunition metal parts for the Department of Defense, shelving for the appliance industry, and the fabrication and assembly of aluminum ladders (Complainant's [*16] Exhibit #1).

3. Prior to trial the Secretary rescinded Item #6 of Citation No. 2, and the penalty proposed therefore (See Commission Document #6, which is a letter to the Respondent from the Area Director Mr. Warren Wright).

4. The Respondent admits the violation as alleged in Citation No. 3, Item #7 and does not contest the proposed penalty in the amount of $337.50, therefore (T-8, Complainant's Exhibit #1, Page 2).

5. That portion of the Respondent's worksite, located on the North side of Building U, had an overhead hoist, the cable of which had over ten broken strands (T-15). In Building K, the Respondent had another hoist, the cable of which had more than ten broken strands (T-17). Prior to the inspection of the Respondent's worksite by employees of the Secretary, the Respondent did not make monthly inspections of all ropes and did not keep written, dated and signed reports of rope conditions on file (T-108, 109).

6. The Respondent at his worksite, at the time of the inspection, in Department D-13, had a hoist hook that was visibly distorted more than 15% at the throat, and has a slight twist, both of which were visible to the naked eye on inspection (T-18, [*17] 19, 20, 21).

7. The Respondent's pump that was outside East of the Shipping and Receiving Building was equipped with a seal that was not discovered at the time of inspection, however was in the equipment, which seal rendered it impossible for vapors to pass through the conduit to a point of ignition (T-102, 110, 111, 114, 115).

8. In the maintenance shop on the Respondent's worksite, air pressure was being used for cleaning purpose without being reduced to less than 30 p.s.i. (T-27, 28, 30). In Department E-13, on the Respondent's premises, a compressed air hose was being used for cleaning purposes, without the pressure being reduced to less than 30 p.s.i. (T-28, 29, 30).

9. The Complainant failed to sustain the burden of proof that there was poor housekeeping in the saw area in Carpenter Shop 107, and that the area complained of was not kept clean and orderly and in a sanitary condition (T-40, 41, 65, 66, 106, 107).

10. Complainant's compliance officer considered the alleged violations herein at issue, in his judgment, to be other than serious (Citation).

11. In assessing the penalties for the violations alleged, the Secretary's representative should have given the Respondent [*18] 10% credit for good faith (T-120, 121, 122, 123, 124, 125, 126, 127). Accordingly, and for other reasons as well, the penalties proposed by the Complainant for the violations alleged in the Citations were inappropriate in the instant cause.

DISCUSSION

In the instant cause the Judge is of the opinion that the compliance officer's testimony concerning the more than ten broken wires on each of the ropes or cables involved herein was veritable, and that a violation of the applicable standard was proven. Similarly, the Judge is of the opinion that the compliance officer possessed sufficient expertise to be able to recognize a distorted hook that had a throat opening larger than that allowed by the standard, and twisted as well. In the opinion of the Judge, the Secretary sustained his burden of proof insofar as these items were concerned, and the testimony of the Respondent to the contrary was not convincing.

Insofar as Item #4 of Citation No. 1 is concerned, the Judge fully credits the testimony of the Respondent and that of his counsel, who stated in open court, although not under oath, that on his visit to the pump, he found an inside seal. The Judge further credits [*19] the testimony of the Respondent's witness that this sufficiently met the criteria of the standard and, accordingly, this item of the Citation must be vacated.

Insofar as Item #5 of Citation No. 2 is concerned, the Judge is of the opinion that the Secretary sustained his burden of proof insofar as each of the hoses used for cleaning was concerned, in that the air pressure in each hose was in excess of thirty pounds per square inch, and the Judge credits the ability of the compliance officer to so determine, and finds these violations proven.

Insofar as Item #12 of Citation No. 5, in which the Secretary alleged poor housekeeping in the saw area, the Judge is of the opinion that the Secretary failed to sustain the burden of proof, insofar as this item is concerned. The sawdust was contained in a compartment built for that purpose and it had a sprinkler system in use. This does not seem to violate the prescription contained in 29 CFR 1910.22(a)(1) which relates that all places of employment shall be kept clean and orderly and in a sanitary condition. The Judge is of the opinion that the Complainant failed to sustain the burden of proof that the area in question was either [*20] unclean, disorderly or unsanitary. Accordingly, this item of the Citation must be vacated.

The Judge notes in passing that one aspect of the contest did not receive attention. While the notice of contest has an opening paragraph that seemed to be all inclusive, the Respondent thereafter specifically took exception to three items of the Citation, rather than the five contested upon the trial. The Judge however, takes the first paragraph to be all inclusive and therefore finds that the other two items were also contested by the Respondent. The first paragraph states, in pertinent part, ". . . we take exception to and hereby contest the Citations and/or proposed penalties issued to and imposed upon us per your notice dated November 1, 1971, which was delivered by way of certified U.S. Mail and received on November 4, 1971, resulting from an inspection of our workplace . . . ." Thereafter the Respondent specifically took exception to Citation No. 1, Item #1, Citation No. 2, Item #5, Citation No. 5, Item #12, and never mentioned taking specific exception to Citation No. 1, Items #2 and #4, and, in the third paragraph, the Respondent specifically took exception and contested the penalties [*21] for Citation No. 1, Items 1, 2, 3 and 4; Citation No. 2, Item #5; and Citation No. 3, Item #7. At the time of trial he withdrew his contest to Item #7, however contested in addition to those previously numbered, the penalties proposed for Items 8, 9, 10, 11 and 12.

Inasmuch as a Respondent by statute has only fifteen days to file a notice of contest, this may have put in question those Citations contested, that were not specifically listed, and those penalties contested, not specifically listed. However, a reading of the first opening paragraph appears to be all inclusive and the Judge finds that the subsequent paragraphs specifying the Citations and the penalties do not vitiate or limit the all inclusive contest contained in the first paragraph of the letter.

Insofar as the penalties are concerned, the Judge is of the opinion that this Respondent should have received 10% for good faith, despite some prior violations under the Walsh-Healy Act. Certainly the Respondent was aware of the Act, had hired safety people, and, in the opinion of the Judge, attempted to comply with the Act. Further, despite the fact that the Respondent contested some of the citations, he abated [*22] the alleged violations within that period given him by the Secretary to abate, despite the fact that his notice of contest tolled such abatement date.

The Judge is aware of the fact that this was a high hazard plant and considering all of the hazards, the walkaround inspection disclosed no serious violations, and when weighing the fact that there were fifty ropes, there were only two ropes with broken strands in excess of ten, on each. In view of the totality of the situation, the Judge is of the opinion that in this case giving the Respondent 10% for good faith would not be inordinate. Further, the Judge takes judicial notice that at the time that the inspection took place and the Citation issued, in other regions in the country, the penalties proposed for similar offenses were, in the main, smaller. While the Judge is not of the opinion that the penalties proposed by the Secretary's representatives in this region were inordinate, nevertheless comparability, uniformity and national consistency should be striven for, insofar as assessment of penalties is concerned.

Considering the gravity of the violations, the size of the Company, the good faith, the prior history, the comparable [*23] penalties meted out for similar violations in other areas, the Judge is of the opinion that the penalties should be fixed as follows:

Citation No. 1 - Item

#1-$150.00

#2-150.00

#3- 75.00

Citation No. 2- Item

#5-100.00

Citation No. 4- Item

#8-140.00

#9- 75.00

#10-125.00

#11-140.00

Insofar as Item #7 is concerned, this was not contested, and the penalty proposed, in the amount of $337.50, appears appropriate and in consonance with the purposes with the Act. Insofar as that penalty proposed for Citation No. 1, Item #4, and Citation No. 5, Item #12, both of which violations were not found and in which the Citations are being vacated, those penalties are similarly being vacated. The total penalties herewith assessed amount in the aggregate to $1292.50.

In the opinion of the Judge the 10% proposed by the Secretary for prior history was proper and appropriate in the premises.

The Judge is of the opinion that the Walsh-Healy Act prior history was properly considered in the case at bar.

Based on the foregoing considerations, the Judge makes the following

CONCLUSIONS OF LAW

1. At all the times herein mentioned, the Respondent was, and still is, engaged in a [*24] business affecting commerce, within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent was, on the dates of the respective inspections at its worksite herein concerned, and at all other times mentioned herein, an employer subject to the safety and health regulations promulgated as 29 CFR Part 1910, by the Secretary of Labor.

3. Pursuant to Section 6(a) of the Occupational Safety and Health Act, the Secretary of Labor on April 27, 1971, adopted 29 CFR Part 1910, to become effective generally on August 27, 1971. The standards alleged to be violated in Complainant's Citations and Complaint were therefore in full force and effect as regard the Respondent and its workplaces on the days of the respective inspectations at worksite herein concerned.

4. The Respondent was, between the 13th day of October 1971, and the close of the 15th day of October 1971, in violation of that standard found at 29 CFR 1910.179(m)(1)(ii), in that two hoist cables each had a number of broken and frayed outside strands or wires in excess of ten.

5. The Respondent was, on the aforementioned days of inspection, in violation of that standard found at [*25] 29 CFR 1910.179(1)(3)(iii)(a), in that it had a defective and distorted hook on a hoist.

6. The Respondent, during the inspection concerned herein, was in violation of that standard found at 29 CFR 1910.315(n)(4), in that there were three electrical box covers missing from a power saw.

7. The Respondent, during the inspection concerned herein, was in violation of that standard found at 29 CFR 1910.242(b) in that air pressure hoses in two areas of the Respondent's worksite, which were being used for cleaning purposes, had in excess of 30 pounds per square inch of pressure.

8. The Respondent, at the time of the inspection herein concerned, was in violation of that standard found at 29 CFR 1910.151(c).

9. The Respondent, at the time of the inspection herein concerned, was in violation of that standard found at 29 CFR 1910.30(a)(2).

10. The Respondent, at the time of the inspection herein concerned, was in violation of that standard found at 29 CFR 1910.37(q)(1).

11. The Respondent, at the time of the inspection herein concerned, was in violation of that standard found at 29 CFR 1910.23(d)(1).

12. The Respondent, at the time of the inspection herein concerned, was in violation [*26] of that standard found at 29 CFR 1910.133(a)(1).

13. The Complainant failed to sustain the burden of proof that the Respondent was in violation of that standard found at 29 CFR 1910.324(e)(2)(ii), and numbered Item #4, on Citation No. 1.

14. The Respondent was not in violation of that standard found at 29 CFR 1910.310(j)(1) found on Citation No. 2, numbered Item #6, inasmuch as the Secretary's representative rescinded that item of the Citation.

15. The Complainant failed to sustain the burden of proof that this Respondent was in violation of that standard found at 29 CFR 1910.22(a)(1).

16. The aforesaid violations of 29 CFR Part 1910 found proven, or conceded by the Respondent, had a direct and immediate relationship to safety and health, but did not constitute "serious" violations within the meaning and purview of the Act.

The penalty proposed for each violation of 29 CFR Part 1910, found herein, in each case, except Item #7, was inappropriate.

18. The penalties assessed herein for the alleged violations found proven by the Judge, or conceded by the Respondent, are as follows:

Citation No. 1-Item #1-$150.00

Citation No. 1-Item #2- 150.00

Citation No. 1-Item [*27] #3- 75.00

Citation No. 2-Item #5- 100.00

Citation No. 3-Item #7- 337.50

Citation No. 4-Item #8- 140.00

Citation No. 4-Item #9- 75.00

Citation No. 4-Item #10- 125.00

Citation No. 4-Item #11- 140.00

The total amount of penalties herein assessed amounts in the aggregate to $1292.50.

In view of the foregoing; having given due deliberation to the gravity of the violations, the size of the Respondent's business, the good faith of the Respondent, and its history; and good cause appearing therefore, it is

ORDERED, that

1. Those parts of the Citations issued and amended, alleging violations of those standards found at 29 CFR 1910.324(e)(2)(ii), 29 CFR 1910.310(j)(1), and 29 CFR 1910.22(a)(1) at the Respondent's workplace, at the time in question herein, are hereby and herewith vacated.

2. Those items of the Citations numbered 1, 2, 3, 5, 7, 8, 9, 10, and 11, alleging violations of the following standards: (1) 29 CFR 1910.179(m)(1)(ii), (2) 29 CFR 1910.179(L)(3)(iii)(a), (3) 29 CFR 1910.315(n)(4), (5) 29 CFR 1910.242(b), (7) 29 CFR 1910.151(c), (8) 29 CFR 1910.30(a)(2), (9) 29 CFR 1910.37(q)(1), (10) 29 CFR 1910.23(d)(1), (11) 29 CFR 1910.133(a)(1), are hereby and herewith [*28] affirmed.

3. The penalties proposed by the Secretary for the violations affirmed, above, are herewith and hereby vacated, and, in lieu thereof, the following penalties are herewith assessed:

Citation No. 1-Item #1-$150.00

Citation No. 1-Item #2- 150.00

Citation No. 1-Item #3- 75.00

Citation No. 2-Item #5- 100.00

Citation No. 3-Item #7- 337.50

Citation No. 4-Item #8- 140.00

Citation No. 4-Item #9- 75.00

Citation No. 4-Item #10-125.00

Citation No. 4-Item #11-140.00

The total penalties assessed herein, amount in the aggregate to $1292.50.