STRAIGHT CREEK CONSTRUCTORS
OSHRC Docket No. 378
Occupational Safety and Health Review Commission
April 23, 1974
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
CLEARY, COMMISSIONER: On September 27, 1972, Commission Judge Donald K. Duvall issued his initial decision and order in this case vacating two items of a citation issued to respondent and affirming a third item.
On October 16, 1972, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), former Commissioner Alan F. Burch directed that the case be reviewed by the Commission.
The Commission has examined the entire record and based thereon adopts the Judge's initial decision insofar as it is consistent with the following determination.
The respondent's worksite at Straight Creek Tunnel, Clear Creek County, Colorado, was duly inspected by a compliance officer on or about November 30, 1971. As a result of this inspection a citation alleging three violations of the Act was issued to respondent on December 10, 1971. Respondent timely filed a notice of contest as to the three alleged violations.
Specifically, the citation alleged non-compliance with the following Safety and Health Regulations for Construction: [*2]
Item 1. 29 C.F.R. 1518.800(a)(1)
(Redesignated 29 C.F.R. 1926.800(a)(2))
Safe means of access shall be provided and maintained to all working places.
Item 2. 29 C.F.R. 800(k)(4)
(Redesignated 29 C.F.R. 1926.800(k)(4))
Cab windows shall be of safety glass, or equivalent, in good condition, and shall be kept clean.
Item 3. 29 C.F.R. 1518.351(e)
(Redesignated 29 C.F.R. 1926.351(e))
Shielding. Whenever practicable, all arc welding and cutting operations shall be shielded by noncombustible or flameproof screens which will protect employees and other persons working in the vicinity from the direct rays of the arc.
Item 1 alleges that the respondent violated section 5(a)(2) of the Act by failing to comply with the standard at 29 C.F.R. 1518.800(a)(2);
A safe means of access was not provided at a point about 1,300 feet inside the Straight Creek Tunnel, in that a ramp designed for the use of vehicular traffic did not have a separate walkway for employee pedestrians.
The walkway area which employees were forced to use presented tripping hazards along railroad tracks to tunnel heading.
The Administrative Law Judge properly recognized that in order to [*3] prevail on the question of whether the ramp provided safe access the complainant must show that the ramp as operated and controlled by the respondent was unsafe. The citation and complaint did not squarely raise this issue, but asserted that safe means of access were not provided in that a separate walkway had not been provided for employee pedestrians. Nevertheless, in our view fair notice of the critical issue was afforded, and the issue was litigated. National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). n1 The express mention of the pedestrian walkway put in issue the alternatives pursued by the respondent in seeking to conform to the standard, as well as a prescribed method of abatement.
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n1 In National Realty, the Court observed that: "So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue." 489 F.2d at 1264.
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The alleged unsafe earthen [*4] ramp was approximately 1,300 feet west of the tunnel entrance, was about 80 feet in length, 16 feet in width, and led from the floor level of the tunnel up to the "bench" level, a height of approximately 20 feet. This ramp was centered in the tunnel and had about 6 feet of clearance from each wall of the tunnel.
Between each outside tunnel wall and the side of a second ramp further within the tunnel, a smaller tunnel or "drift" was being dug into which tracks were laid for railroad car type transportation of shoring materials and concrete. Thus, the bed or floor of the tunnel was simultaneously being dug at two depths, the bench level at the face and the floor level some 800 feet behind the face.
The testimony of the compliance officer demonstrates that the thrust of his objection to the construction and operation of the ramp centered around the lack of a separate walkway for pedestrians. Although the respondent immediately constructed such a walkway, it subsequently argued that the walkway was not safer than its prior operation of the ramp. The respondent asserted that the reduction in the width of the ramp due to the walkway increased the possibility of vehicles falling into [*5] the drifts. It further asserted that the walkway gave the employees a "false sense of security" which led to employees congregating on the walkway. Finally, it asserted that 2" X 4" wood railings would afford no protection to a pedestrian on the walkway if a heavy construction vehicle went out of control. Such a position reduces itself to arguing that sidewalks along a street afford no additional protection for pedestrians. It seems to us that a clear delineation of areas for vehicular and pedestrian traffic provides an element of safety for pedestrians.
The respondent conceded that it "recognized the potential hazard of having vehicles and people using the same ramp and sought to avoid this by keeping people off the ramp whenever a vehicle was on it." n2 The respondent took the following steps to accomplish this objective;
[A]memorandum was posted on bulletin boards, disseminated to supervisors and read to all employees at their safety meetings; all vehicles were denied access to the ramp for 20 minutes at each shift change;
A man was stationed at the bottom of the ramp to direct the trucks in turning around. Before they started to back up, a backup alarm rang [*6] . . . [T]here were also all sorts of lights on the back and front of the trucks.
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n2 Respondent's brief, page 5.
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While these procedures may at first glance appear to be comprehensive, the conditions at the site of the ramp warrant discussion. The evidence demonstrates that lighting was poor; considerably high noise levels were encountered; the ground was damp or wet and muddy; vehicles using the ramp were large in comparison with the ramp size; and the ramp was concededly too narrow for the use to which it was put. Finally, the evidence indicates that respondent's procedures failed to prevent pedestrian employees from using the ramp at the same time as vehicular traffic.
Ultimate responsibility for compliance with 29 C.F.R. 1926.800(a)(2) rests with the employer. In the instant case it is clear that the respondent recognized the potential hazard of using the narrow ramp for simultaneous pedestrian and vehicular traffic and it had taken some steps to prevent such an occurrence. If such procedures had been stringently [*7] enforced the ramp would have been "a safe means of access." Nor were alternative procedures, such as that specified in the citation, used. Accordingly, it is found that the ramp was not "a safe means of access," and the standard was violated.
The second part of item 1 of the citation, supra, concerns itself with the conditions along railroad-type tracks leading into the drift tunnels on either side of the ramp. It is undisputed that employees were working in each of these drifts and the evidence demonstrates that employees reached this worksite by walking along or inbetween the tracks. The compliance officer pointed out that boards laid between the tracks were uneven, splintered and in a generally dangerous condition for walking. The respondent answered that the boards were solely for catching concrete spillage from the railroad cars. However, the respondent's officials testified that they had knowledge that employees used the tracks as walkways having no other access to their work area. At least one official testified that he had seen employees entering the drift tunnels walking between the tracks and that he took no preventive actions. Such inaction by a responsible [*8] official constitutes an acquiescence in the engagement by employees in an unsafe practice. Accordingly, we conclude that the conditions of the walkway between the tracks constituted an unsafe access.
The evidence establishes that a penalty of $150 is appropriate for item no. 1.
We find the Judge's conclusion in affirming item 2 of the citation to be in error. There is ample evidence of record that although the cab window of a hydrocrane was cracked that the crack in no way impeded the operator's vision and that it presented no other hazard.
The Judge's decision is affirmed. There is sufficient evidence of record to support the Judge's dismissal of item 3.
Accordingly, it is ORDERED that:
Item No. 1 of the citation is affirmed and a penalty of $150 is hereby assessed.
Item Nos. 2 and 3 of the citation are dismissed.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the Commission's disposition of items 2 and 3 of the citation at issue. I dissent, however, from the reversal of Judge Duvall's determination that item 1 of the citation should be vacated. I would affirm the Judge's decision [*9] as to that item for both the reasons given therein and those set forth below.
The Commission's finding on this count bears little or no relationship to the charge. Respondent was not charged with an all-embracing offense of keeping an unsafe ramp. It was alleged that the ramp was unsafe specifically because of its failure to include "a separate walkway for employee pedestrians." The Commission decision treats this charge as if it is unimportant and proceeds to find that the respondent violated its own ex post facto charge of using the ramp in an unsafe manner. Recognizing that the "citation and complaint did not squarely raise this issue," it justifies this action by asserting that "fair notice of [this] issue was afforded, and the issue was litigated." My review of the record indicates that the issue was not litigated.
Neither the charge against this respondent nor the standard itself is concerned with "use." The standard calls upon the employer to "provide" and "maintain" a "safe means of access" to all working places. This employer constructed a ramp for this purpose. The Commission found no fault with either the ramp itself or its maintenance. Quite the contrary, the [*10] decision states that the ramp "would have been a safe means of access" had various pedestrian control measures for "use" of the ramp been better administered. Furthermore, this conclusion is pure conjecture. The complainant's only witness, the inspector who originated the citation, never observed any of the respondent's vehicles using the ramp, nor did any other witness give an opinion as to the adequacy of the respondent's safety precautions which had been formulated from observation of the simultaneous use of the ramp by vehicles and pedestrians before construction of the walkway. n2
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n2 I also note that the Commission relies in part on the poor lighting in the tunnel. This is contrary to the following testimony of the complainant's inspector:
"I didn't say the lighting was poor. I said it was limited. It was adequate so far as our standards were concerned."
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I have previously commented upon the Commission's tendency to find a respondent in violation of the Act for something with which it was not [*11] charged and which was not supported by evidence in the record. Secretary v. National Realty and Construction Company, Inc., A similar point was made by the Court of Appeals when it revested the Commission's decision in this same case: n3
The Commission sought to cure these deficiencies [in the record] sua sponte by speculating about what National Realty could have done to upgrade its safety program. These suggestions . . . came too late in the proceedings. An employer if unfairly deprived of an opportunity to cross-examine or to present rebuttal evidence and testimony when it learns the exact nature of its alleged violation only after the hearing . . . . [T]he Secretary has considerable scope before and during a hearing to alter his pleadings and legal theories. But the Commission cannot make these alterations itself . . . .
Only by requiring the Secretary, at the hearing, to formulate and defend his own theory of what a cited defendant should have done can the Commission and the courts assure even-handed enforcement . . . .
[Emphasis supplied by the court]
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n3 National Realty and Construction Company, Inc. v. OSAHRC et al., 489 F. 2d 1257, 1267-1268 (D.C. Cir. 1973).
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The sad thing about these ex post facto charges and convictions is that the respondent bases his defense on the citation's allegations about the necessity of a "separate walkway" and is then told after the hearing is over that he lost the case because he didn't defend against the procedures for "use" of the ramp. A sort of "heads I win, tails you lose" proposition which, in my opinion, has no place in our judicial system.
Quite aside from the above, the record in this case is replete with evidence that this ramp was a safe place of access. For example, the Judge found that
The Colorado Bureau of Mines regularly inspects Respondent's tunnel job, including the ramp . . . and raised no objection respecting said ramp.
Additionally, the Commission's decision has not told the respondent what he should do to provide his employees with a safer workplace. The Commission held in Secretary v. Tilo Company, Inc., [*13] 1973, that a standard must specifically tell an employer what he must do to comply therewith. The Court of Appeals held similarly in the National Realty case, supra:
. . . the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures.
In this case, the standard does not do this, nor does the citation or anything else in the record. Initially, the inspector suggested that a stairway be built, but the evidence shows that this was impractical because it would close off access for equipment that was needed for the work being performed in the drift. After the inspector was advised of this, the respondent was told that the construction of a walkway was required. The construction of the walkway reduced by four feet the width of the ramp for vehicular traffic. This significantly increased the possibility that a backing vehicle would go off the ramp and injure the driver and personnel working in the drift. Therefore, the construction of the walkway created a greater hazard than had formerly existed. The Act does not require an employer [*14] to do something that increases the danger of his employees being injured. Secretary v. Industrial Steel Erectors, Inc.,
Accordingly, I submit that the Judge properly found no violation in this instance and that the Commission is in error in overruling that finding.
[The Judge's decision referred to herein follows]
DUVALL, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter referred to as the "Act") to review a citation and proposed penalties issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to Sections 9(a), 10(a), and 17(c) of the Act. Complainant alleges that Straight Creek Constructors, a joint venture of Gibbons and Reed Construction Company, Salt Lake City; Kemper Construction Company, San Francisco, California; Western Paving Company, Denver, Colorado; Al Johnson Construction Company, Minneapolis, Minnesota, (hereinafter referred to as "Respondent"), an employer engaged in the construction of a highway tunnel, violated occupational safety and health standards promulgated pursuant to Section 6 of [*15] the Act, namely, 29 C.F.R. Section 1518.800(a)(1) and (2), and (k)(4), and 29 C.F.R. Section 1518.351(e), all as adopted by 29 C.F.R. 1910.12, on the basis of an inspection conducted on November 30, 1971, at a worksite under Respondent's ownership, operation, or control located at Straight Creek Tunnel, Clear Creek County, Colorado.
Item 1 of the citation alleges that 29 C.F.R. Section 1518.800(a)(1) and (2) was violated in that a safe means of access was not provided at a point about 1,300 feet inside the Straight Creek Tunnel, to wit, a ramp designated for the use of vehicular traffic did not have a separate walkway for employee pedestrians; and a walkway area which employees were forced to use presented tripping hazards along railroad tracks leading to the tunnel head.
29 C.F.R. Section 1518.800(k)(4) was alleged to have been violated in that the cab windshield of hydrocrane 12.008 was cracked, thereby obstructing the vision of the operator. 29 C.F.R. Section 1518.351(e) was alleged violated in that employees working in the east end of the tunnel were not protected from the direct rays of the welding arc. The prescribed abatement date for all alleged violations was [*16] December 15, 1971. A notification of proposed penalty issued on December 10, 1971, proposed the following penalties: Citation Item No. 1 -- $150.00; Item No. 2 -- $15.00; Item No. 3 -- $15.00.
Respondent's notice of contest respecting the citation and proposed penalty was filed with the Commission on January 5, 1972, and in due course the case was referred to the undersigned Judge for hearing in accordance with Section 12(e) of the Act. After due notice, a hearing was held in this case on April 24, 1972, at Denver, Colorado, with both parties appearing and represented by counsel. No affected employees, nor any representative of such employees asserted party status before, at or subsequent to the hearing.
The cited safety and health regulations provide as follows:
Section 1518.800 Tunnels and shafts.
(1) The specific requirements of this Subpart S, Tunnels, Shafts, Caissons, Coffer-dams, and Compressed Air, shall be complied with as well as the applicable provisions of all other parts of this part.
(2) Safe means of access shall be provided and maintained to all working places.
(4) Cab windows shall be of safety glass, or equivalent, [*17] in good condition, and shall be kept clean.
Section 1518.351 Fire prevention
(e) When the welding, cutting, or heating operation is such that normal fire prevention precautions are not sufficient, additional personnel shall be assigned to guard against fire while the actual welding, cutting, or heating operation is being performed, and for a sufficient period of time after completion of the work to insure that no possibility of fire exists. Such personnel shall be instructed as to the specific anticipated fire hazards and how the fire fighting equipment provided is to be used. The foregoing safety and health regulations for construction were duly promulgated by publication in the Federal Register, Volume 6, No. 75, pages 7369, 7393-7394, of April 17, 1971.
Section 1518.354 Arc welding and cutting.
(e) Shielding. Whenever practicable, all arc welding and cutting operations shall be shielded by noncombustible or flameproof screens which will protect employees and other persons working in the vicinity from the direct rays of the arc.
Section 9(a) of the Act provides in pertinent part that when the Secretary of Labor or his authorized representative believes that an employer [*18] has violated any standard or regulation promulgated pursuant to the Act "he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the Act, standard, rule, regulation, or order alleged to have been violated . . . ."
Section 10(a) of the Act provides in pertinent part that the Secretary shall give the employer appropriate notice within a reasonable time of the penalty, if any, proposed to be assessed under Section 17 of the Act.
Section 17 of the Act provides in pertinent part as follows:
(c) Any employer who has received a citation for a violation of the requirements of Section 5 of this Act, of any standard, rule, or order promulgated pursuant to Section 6 of this Act, or of regulations prescribed pursuant to this Act, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.
(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of [*19] 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.
The main issues to be resolved herein are (1) whether Respondent violated the standards set forth at 29 C.F.R. Section 1518.800(a)(1) and (2) and (k)(4) and 29 C.F.R. Section 1518.351(e) (construed to mean Section 1518.354(e), as hereinafter explained), all as adopted by 29 C.F.R. 1910.12; and (2) whether the proposed penalties for the aforesaid alleged violations are proper and appropriate under the provisions of Section 17 of the Act.
FINDINGS OF FACT
The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:
1. Respondent is a joint venture of four corporations, namely, Gibbons & Reed Construction Company, Kemper Construction Company, Western Paving Company, & Al Johnson Construction Company, with a place of business located at Straight Creek Tunnel, Clear Creek County, Colorado, where it is engaged in the construction of a highway tunnel (Complaint, Item 6 of Commission's Case File; Stipulation, Tr. 11, 4).
2. Respondent [*20] regularly receives in commerce goods, materials and supplies which have originated outside the State of Colorado and Respondent's employees regularly handle and work on goods or materials that have been shipped or received in such commerce (Tr. 12).
3. Respondent employs approximately 650 employees on a daily basis (Stipulation, Tr. 11).
4. Respondent had ownership, control or operation of the equipment and machinery in the Straight Creek Tunnel (Stipulation, Tr. 11).
5. The citation, notice of proposed penalty, notice of hearing and all pleadings have been properly served on the parties or posted at the job-site (Tr. 11, 4).
6. Affected employees of Respondent are represented by Carpenters Local Union 1396, Laborers Union Local No. 720, Operating Engineers Local No. 9, Teamsters Union Local No. 13, Ironworkers Local No. 24, Sheet Metal Workers Local No. 9, Millrights Local No. 2834, Pipefitters Local No. 208, Plumbers Local No. 3, and Electricians Union No. 68.
7. On November 30, 1971, Mr. Raleigh M. Kay, an occupational safety and health compliance officer with the U.S. Department of Labor, conducted an official inspection of Respondent's worksite located at Straight Creek [*21] Tunnel, Clear Creek County, Colorado (Tr. 15). He was accompanied by Respondent's safety officer and a union shop steward (Tr. 25).
8. Based on the foregoing inspection, on December 10, 1971, Complainant issued a citation and notification of proposed penalty for alleged non-serious violation of the following standards under the Occupational Safety and Health Act of 1970, at Straight Creek Tunnel, with a prescribed date for correction of said alleged violations and proposed penalties as shown:
29 C.F.R. Sec. 1518.800(a)(1) & (2), as adopted by 29 C.F.R. 1910.12 -- A safe means of access was not provided at a point about 1300 feet inside the Straight Creek Tunnel, in that a ramp designed for the use of vehicular traffic did not have a separate walkway for employee pedestrians.
The walkway area which employees were forced to use presented tripping hazards along railroad tracks leading to tunnel heading. December 15, 1971 -- $150.00.
29 C.F.R. Sec. 1518.800(k)(4), as adopted by 29 C.F.R. Sec. 1910.12 -- The cab windshield of Hydrocrane 12.008 was cracked, thereby obstructing the vision of the operator. December 15, 1971 -- $15.00.
29 C.F.R. [*22] Sec. 1518.351(e), as adopted by 29 C.F.R. 1912.12 -- Employees working the east end of tunnel were not protected from the direct rays of the welding arc. December 15, 1971 -- $15.00.
9. The citation for violation and notification of proposed penalty issued by Complainant on December 10, 1971, were contested by Respondent on December 21, 1971, and filed with Commission on January 5, 1972 (Commission File, Docket No. 378, Item 3).
10. On November 30, 1971, an earth and crushed rock ramp approximately 16 feet wide, 80 feet long, and 15 feet high was used by Complainant's pedestrian employees, vehicles, and equipment, including 20 ton loaders, cranes and drilling machines, as the sole means of access between the floor or excavated level and the upper or bench level at a point approximately 1300 feet within the Straight Creek Tunnel, about midway between the east portal (entrance) and the face of the tunnel (Tr. 16, 32). As shown in Respondent's Exhibit R-1, a working drift (side tunnel) approximately 8 feet wide and 8 feet high was located on each side of the ramp. Men work in these drifts preparatory to and during the concrete pouring process, which had not been completed. [*23] The ramp itself consisted of hard earth and ground rock with a muddy surface. Throughout the tunnel the ground was flakey and faulty (Tr. 72), wet and muddy (Tr. 99-100). It is considered a bad ground tunnel due to unstable material, including the rock which breaks up easily and is interspersed with seams of even poorer material that disintegrates and almost turns into a form of mud or sand upon exposure to air (Tr. 105). The tunnel is approximately 40 feet wide by 40 feet high, with the working face approximately 1900 feet west of the east portal. It has been under construction for four years as part of the interstate highway system through Loveland Pass in the Rocky Mountains (Tr. 62, 106).
11. Lighting in the vicinity of the cited ramp was limited, and there was considerable noise caused by working machinery, vehicles, and the air ventilation system (Tr. 17), but a person standing at the top of the ramp could look down and tell whether any vehicles were coming up (Tr. 97).
12. The vehicles using the cited ramp were rather large in comparison with the size and width of the ramp, requiring the vehicle driver to attain a certain speed to go up the ramp and close attention [*24] to where he was going when using the ramp (Tr. 17-18).
13. Compliance Officer Kay, with 25 years experience in the construction field, 3-1/2 years as a construction safety inspector with the District of Columbia, including highway and sewer tunnel experience, testified, in effect, that the cited ramp did not provide safe access to the working face of the tunnel on the date of inspection because it unduly exposed the pedestrian employees using the ramp to the hazards of the vehicular traffic, particularly under the prevailing conditions of limited visibility and noise, the largeness of the construction vehicles using the ramp compared with size and width of the ramp, and the fact that there were no signs at the ramp warning employees about the vehicular traffic (Tr. 16-18).
14. On November 27, 1971, an employee of Jelco, Incorporated, an electrical subcontractor of Respondent, was killed as the result of being run over by a concrete truck while it was backing up the ramp in question. The alleged violations for which Respondent is presently cited were reported by Compliance Officer Kay in the course of his investigation of the aforesaid accident. Mr. Kay's testimony [*25] respecting this fatality was objected to by Respondent's counsel on the grounds of hearsay and new evidence for which no foundation had been laid. The objection was overruled on the ground of relevancy, on condition that Respondent's counsel be afforded an opportunity to rebut said testimony (Tr. 39-49).
15. During his inspection Compliance Officer Kay suggested to Respondent that a separate walkway for pedestrians be constructed on the subject ramp (Tr. 54), which was done (Respondent's Exhibit Nos. R-3 & 4) after Mr. Kay's initial suggestion that a stairway be built over the side drifts (Tr. 25) was deemed impractical by Respondent because it would have obstructed access to the drifts which were still being used by vehicles and equipment preparatory to concrete work (Tr. 66, 71-72).
16. Because of the size and complexity of this tunnel job, the drifts were done simultaneously with other excavation, concrete pouring, etc., so that 8 or 10 different operations were occurring simultaneously in the tunnel (Tr. 64). The drifts could have been drilled one at a time, consecutively rather than simultaneously, but that would not have been normal or desirable because economics [*26] and time practically require that work progress on two or three headings at a time (Tr. 102-104).
17. A memorandum, issued by Respondent on November 15, 1971, instructs employees not to use the ramp under any circumstances while vehicular traffic is moving up or down it and shuts down all vehicular traffic 10 minutes before and 10 minutes after each shift change (Respondent's Exhibit R-2). This memorandum signed by Respondent's safety engineer, Mr. R. J. Littleton, was put on bulletin boards, given to each shifter (foreman) to read to his people at toolbox meetings, and disseminated to all superintendents and walkers on the job (Tr. 73). Watching out for heavy equipment and staying out of its way was stressed repeatedly at every meeting; also that pedestrian employees should move over to the side and stand still upon the approach of heavy equipment (Tr. 113-114). Still, it was possible for a pedestrian to be starting down the ramp at the same time a vehicle is starting up (Tr. 91), in which case the pedestrian would get as far to one side as he could (Tr. 116).
18. The procedure prescribed for vehicles using the ramp is as follows: Before backing up the ramp vehicles are turned [*27] around under the directions of a man assigned to this duty and honk their horns three times. Front and rear lights illuminate the backing vehicle and a back-up alarm sounds every quarter turn of the steering wheel (Tr. 97-98).
19. Mr. Richard J. Littleton, Respondent's underground safety engineer, with over 3-1/2 years experience as such, plus about 8 years as a military flying safety officer, testified that the safety aspects of the ramp had been thoroughly studied by Respondent at the time of construction and it had been concluded that since the drifts on either side of the ramp required access for both personnel and heavy vehicular traffic, and in view of the faulty ground and the traffic in heavy vehicles it was decided to give the vehicular traffic as wide a ramp as possible, protecting pedestrians by banning their use of the ramp during any vehicular traffic and closing down all vehicular traffic for 20 minutes during each shift change. Respondent believed that access would be safer under this procedure since it would keep pedestrians off the ramp during traffic periods and allow maximum leeway for the heavy trucks (20 tons) to avoid the danger of falling in or [*28] onto the north drift where people were moving in and out (Tr. 72-73). Even so, the ramp was too narrow for what it was used for (Tr. 72). Construction of the separate walkway four feet wide along the south side of the ramp reduced the width of the ramp for vehicular traffic by four feet, tending to push such traffic to the north side (Tr. 76).
20. The separate walkway or catwalk was constructed of wood and metal and affixed to the framework of the south drift and to the ground (Tr. 100-101). While vehicle drivers would do their best to avoid striking the catwalk, if it happened the railing of the catwalk would provide little or no protection against a loader, one of the heavy vehicles used (Tr. 92, 112).
21. Mr. James Wagner, Respondent's employee who often drove loaders and other vehicles up and down the ramp, testified that before the catwalk was installed vehicle drivers had no problem staying in the middle of the ramp and pedestrians stayed away from the ramp when they heard equipment coming; but after the catwalk was installed it was very difficult to back down, especially at the lower part of the ramp where there was less support to hold the earth in place [*29] and sloughing off which the vehicle wheels tended to slide into, and pedestrians tended to congregate on the catwalk and were less concerned with the vehicular traffic, believing themselves to be protected from it (Tr. 111-113, 115-116).
22. The Colorado Bureau of Mines regularly inspects Respondent's tunnel job, including the ramp as shown in Respondent's Exhibit R-1, and raised no objection respecting said ramp (Tr. 77-78).
23. Part two of alleged violation item 1 was described by Compliance Officer Kay as deteriorated or broken boards between the railroad tracks going to and near the working face of the tunnel at bench level which constituted a tripping hazard to Respondent's employees who used the tracks as a walkway and means of access to the working face (Tr. 18).
24. The boards in question were wet and were located in a rocky wet area of considerable leakage (Tr. 18-19, 99). They were replaced the day following the inspection (Tr. 86-87).
25. The trains using said tracks shuttled back and forth between the face and another ramp near the face where they were filled with concrete. According to Mr. Littleton the boards between the tracks were intended to catch cement [*30] dropping from the railroad cars and to facilitate vehicle crossing of the tracks and were not meant to be walked on when equipment was operating (Tr. 77, 96-97).
26. Mr. Littleton testified that Respondent's employees walk along the side of said railroad tracks, there being 3-1/2 feet on each side of the railroad tracks in the drift, for access to these working face areas, although he also stated that he had seen employees walking on the boards between the tracks (Tr. 92-93; 98-99).
29 C.F.R. Sec. 1518.800(k)(4)
27. On November 30, 1971, Compliance Officer Kay observed and reported a yellow hydrocrane in use which had a substantial, radiating crack in the lower left corner (driver's side), of the cab windshield covering one-third to one-half of its area and obstructing the driver's vision to the lower left hand side (Tr. 19-20).
28. Mr. Kay testified that under tunnel conditions and considering the number of things a crane driver must watch out for, including overhead lines, pedestrians, other vehicles, and workers, any obstruction of a vehicle operator's visibility at any angle is a hazard and that the radiating crack in the subject crane windshield limited the driver's [*31] visibility so that he possibly could not have seen a worker bending over at the lower left hand side of the driver (Tr. 27).
29. A purchase request for glass to replace the cracked crane windshield was issued by Respondent on October 2, 1971 (Respondent's Exhibit R-5) and a purchase order for the same item was made on October 5, 1971 (Respondent's Exhibit R-6) and the said glass was actually replaced on or about December 3, 1971, the delay being due to the glass being out of stock (Tr. 78-80, 117).
30. Mr. James Wagner, Respondent's employee and one of three operators of the hydro-crane at the time of inspection, testified that on November 30, 1971 the windshield glass of the crane had two hairline cracks running from the lower left hand corner partly across the windshield (Tr. 109).
31. Mr. Wagner further testified that the cracks did not impair his vision at all in driving the crane because he could hardly see them; that water spattering on the windshield would impair his vision ten times more; that when the glass was replaced after the inspection he wondered why they were doing it since the glass was not that bad; and that the glass had been cracked a week or so [*32] and none of the three operators had complained about it because it was not that bad (Tr. 109, 118).
32. Mr. Wagner also testified that under the bylaws of his union he has the right to refuse to use or operate any unsafe equipment and that Respondent has never given him any trouble or hassle about getting repairs of equipment he has deemed unsafe or where a safety factor is involved (Tr. 110).
29 C.F.R. Sec. 1518.351(e)
33. On November 30, 1971, Compliance Officer Kay observed and reported a welding arc in use about 100 feet east of the face of the tunnel on a scaffold about 4-5 feet high above the bench level, the rays of the arc were shielded on the west side only (toward the face), leaving employees working south and east of the welding area unprotected (Tr. 20-22).
34. Mr. Kay stated that he could see the arc rays when he started up the ramp located about 600 feet east of the face and that he passed within 20 feet of the arc on the south side. While he did not look at the arc as he passed on the south side he did not recall whether or not there was something shielding the rays on that side (Tr. 51-53).
35. Mr. Littleton testified, supported by a drawing prepared by Respondent's [*33] engineering department (Respondent's Exhibit R-7), that the welding arc was located on a welder's bench about 3 feet above the second upper level which was about 17 feet above the tunnel floor, close to the south wall of the tunnel; that the arc rays were shielded on three sides: by a concrete bulkhead on the west, a 4 X 8 3/4-inch plywood board on the north, and the south wall of the tunnel to the south; and that workers on the ramp (upper) level immediately north of the plywood shield in the concrete off-load area could not see the arc rays; nor could workers on the trains going back and forth under the elevated welder's area at floor level have seen such rays until they were about 80 feet out east of the welder area, and that workers at the ramp nearest the east portal could only see a reflection, not the direct arc (Tr. 80-86).
36. There was an area underneath the scaffold supporting the welder's bench from which someone looking up could see the direct rays of the arc (Tr. 93-94).
37. Mr. James Wagner, who was also acting as a train motorman in the south drift at the time of the inspection, testified that he noticed the welder's arc rays only when he was well out [*34] east of the Y in the track, and then it was the glow rather than the flash of the arc which did not hurt his eyes. Mr. Wagner also stated that he had never heard any of the 18 men on the train crews complain about getting flash-off from the welder (Tr. 119-121).
38. Complainant had an established safety policy and program supervised by two qualified safety people, which includes weekly safety meetings of workers, formulation and enforcement of safe working practices and safety notices. Complainant's accident severity rate is under the national average (Tr. 70, 86, 95, 113-114).
39. The proposed total penalty of $180.00 for the three cited alleged violations was based on consideration of the gravity of the alleged violations, the good faith and size of Complainant and the history of the company under the Act (Tr. 55-58).
40. Respondent has had no previous violations under the Act (Stipulation, Tr. 11).
41. Respondent and Complainant stipulated that the abatement dates set forth in the citation were reasonable (Tr. 58).
It is well established by the evidence of record that the Commission has jurisdiction of this matter under Section 10(c) of the Act by virtue of [*35] Respondent's contest of Complainant's citation issued on December 10, 1971 (Findings of Fact 8 and 9). It is further established that Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act (Findings of Fact 2 and 3).
Respecting both parts of the safe access issue (Citation Item 1, 29 C.F.R. Sec. 1518.800(a)(1)&(2)), Complainant has not established by substantial evidence its allegation that on November 30, 1971, Respondent was in violation of the cited occupational safety and health standard by failing to provide a safe means of access in that (1) a ramp designed for vehicular traffic did not have a separate walkway for employee pedestrians and (2) a walkway area along railroad tracks leading to the tunnel heading presented tripping hazards.
On the ramp issue, the record establishes that even at its full width of 16 feet the ramp, from a safety standpoint, was narrower than it should have been compared with the size of the heavy vehicles which used it under the tunnel circumstances of limited visibility, noise, and bad ground conditions (Findings of Fact 10, 12, 19). To justify its contention that the ramp, to be safe, required [*36] a separate walkway reducing by four feet the width of the ramp for vehicular traffic, in addition to or in lieu of Respondent's ramp safety policy and procedures prohibiting pedestrians on the ramp during vehicular use and prohibiting vehicles on the ramp for 20 minutes during shift changes, Complainant has shown that the latter safety policy and procedures did not absolutely prevent Respondent's pedestrian employees from using the ramp at the same time vehicles were on it, thus exposing themselves to substantial risk of injury.
The evidence of record shows that notwithstanding Respondent's ramp safety policy and procedures, pedestrian employees could and did at times get caught on the ramp when vehicles came down or up it at which times the procedures directed the pedestrian to get as far as he could to one side and remain still until the vehicle passed (Findings of Fact 17-18); that within 15 days after Respondent issued its written memorandum banning pedestrian use of the ramp "under any circumstances" while vehicular traffic is moving up or down it and shutting down "all vehicular traffic" 10 minutes before and after each shift change, an employee was run over by a [*37] truck backing up the ramp (Finding of Fact 14); and that there were no signs at the ramp warning employees about the vehicular traffic (Finding of Fact 13).
To prevail on the question of whether the ramp provided safe access on November 30, 1971, Complainant must show that the ramp as operated and controlled by Respondent on that date was unsafe, and not just that there were other safer ways of operating said ramp under all the circumstances. Thus, whether or not the separate walkway installed by Respondent at Complainant's suggestion after November 30, 1971, made the ramp access safer is a question upon which reasonable men and even experts might disagree. The evidence of record in this case, including particularly the testimony relating to the bad ground, and limited visibility conditions, the size and weight of the vehicles compared with the narrowness of the ramp, the limited protection afforded by the separate walkway, and the increased and less careful pedestrian use of the walkway notwithstanding Respondent's safety memorandum of November 15, 1971, leads me to conclude that, on balance, the separate walkway did not make the ramp safer. But even if it did make [*38] the ramp safer, for example, by requiring the vehicle drivers to be more careful to avoid striking the walkway on the south side of the ramp, that would not necessarily prove that the ramp without the walkway was unsafe as operated and controlled by Respondent on November 30, 1971.
Apart from the testimony relating to the dubious advantages of the separate walkway, there is little or no substantial evidence to support Complainant's allegation that the ramp, as operated and controlled by Respondent, was unsafe on November 30, 1971. Testimony that there were no pedestrian warning signs at the ramp and that there were some times when pedestrians, unavoidably, inadvertently or otherwise, were on the ramp while vehicles were using it (Finding of Fact 17), when weighed against the quality and extent of Respondent's safety program and the inherently dangerous or difficult conditions and practical situations inevitably involved in tunneling, does not establish that the ramp was not a safe means of access as operated and controlled by Respondent. In lieu of warning signs at the ramp Respondent issued a written memorandum setting forth the policy and procedures for safety of pedestrians [*39] and vehicles on the ramp which was posted on bulletin boards, read by each shifter to the employees he supervised at weekly safety meetings, and disseminated to all superintendents and walkers on the job (Tr. 73). Employee Wagner testified that watching out for heavy equipment was stressed repeatedly at every weekly meeting (Finding of Fact 17). New employees were not only briefed by the safety department on all safety policies but were required to sign these policies (Tr. 71).
While the record establishes that Respondent's ramp safety policy was put in writing and broadly disseminated it is not clear that it was enforced as strictly as in the case of the handling of explosives, for example, where it was insisted that everyone follow the policy (Tr. 68). Mr. Littleton testified that he was in the tunnel almost daily enforcing safety policies, presumably including the ramp safety policy, but the record is silent as to what specific enforcement actions, if any, were taken with respect to the ramp. Mr. Wagner's testimony suggests that the repeated thrust of the ramp safety program was to urge the employees to watch out for and avoid the heavy equipment (move over to the [*40] side and stand still (rather than to enforce strictly the the prohibition of staying off the ramp "under any circumstances" while vehicular traffic was moving on it. At the same time, Mr. Wagner testified that before the separate walkway was installed the men stayed completely away from the ramp unless they had to use it and then only when they heard no equipment coming (Tr. 112).
The fact that a pedestrian was killed by a truck backing up the ramp 7 days after Respondent's issuance of its ramp safety memorandum (Finding of Fact 14) may or may not show that the ramp as operated and controlled by Respondent at that time constituted an unsafe means of access, depending upon the relevant specific circumstances of that accident, not shown on this record. Thus, there is no explanation or verification of the circumstances of deceased's presence on the ramp at the same time as the truck was backing up, apparently in violation of Respondent's ramp safety policy. Such an isolated, unexplained occurrence, standing alone or in conjunction with any other evidence on this record certainly does not establish that the ramp as operated and controlled by Respondent was unsafe or that Respondent [*41] condoned violations of its ramp safety program or had a practice of lax enforcement which might lead to a finding of unsafe means of access.
As stated in a recent decision affirmed by the Commission:
All the Secretary of Labor has proved is that an accident occurred. This is insufficient to carry the burden of proof imposed upon him. A citation is issued to force correction of an unsafe or unhealthful working condition. If the cause of the accident has not been determined, then what is the employer to correct? It seems obvious that the petitioner must show what caused the accident and that une cause was a violation of the standard cited. The fact that an accident occurred is not in itself proof of a violation. Secretary of Labor v. Koppers Company, Incorporated,
Similarly, Respondent's failure to place warning signs at the ramp reiterating the ban against pedestrians on the ramp during vehicular traffic, cannot reasonably be deemed an omission of such serious gravity and effect, given reasonable enforcement of its ramp safety policy and procedures, as to render the ramp an unsafe means of access. However, in [*42] view of the danger inherent in tunnel operations, especially "bad ground" tunnels involving heavy vehicle traffic, Respondent would seem to have an extra duty of care to maximize the effectiveness of its protective procedures and placement of the aforesaid signs probably would have helped make Respondent's ramp safety policy and procedures even more effective than they were.
Respondent's rejection of Complainant's alternative suggestions that pedestrian stairs be erected over the drift south of the ramp and that only one drift be worked at a time so as to facilitate such stair construction around the ramp on grounds of impracticability, feasibility and economic factors, respectively, cannot be deemed an unreasonable position, all factors considered, including the size and complexity of the tunnel project and the comparative increments of risk/safety involved.
In sum, it appears from this record that Complainant has not sustained his burden of proof respecting the first paragraph of the Citation Item 1 relating to safe access.
Respecting the second paragraph of Citation Item Number 1, relating to tripping hazards along railroad tracks, unrebutted testimony of Mr. Littleton [*43] indicated that Respondent did not encourage or even intend much less force its employees to use the railroad tracks approaching the tunnel face as a walkway access to the face. While admitting that he had seen employees walking between the tracks, Mr. Littleton stated that the purpose of the boards between the tracks was to catch concrete drippings from the railroad cars shuttling to and from the face and to facilitate crossing of the tracks by vehicles (Findings of Fact 25-26).
While there is substantial evidence of record showing that some of the boards between the tracks in question were broken and were replaced the day following the inspection, that the surrounding ground was wet, muddy and rocky, and that Respondent's employees did at times walk on the boards, presumably because it was a somewhat smoother walkway for access to the face, the evidence does not establish that said boarded tracks, which were used by moving trains, constituted a walkway means of access which Respondent required or authorized its employees to use, as alleged in the citation. Inspector Kay's testimony that there was not room between the tracks and the wall of the tunnel for employees to walk (Tr. [*44] 18-19) appears to be substantially rebutted by the testimony of Mr. Littleton that there was 3-1/2 feet on each side of the tracks within the south drift (Finding of Fact 26) and by the drawing of the railroad tracks at the tunnel face (Respondent's Exhibit 7) showing ample means of access to the face other than by means of the railroad tracks.
It is possible that notwithstanding its stated policy of not intending the railroad tracks to be used by pedestrian employees as a means of access Respondent could be shown to condone such a practice to the extent that the condition of the hydrocrane cab windshield, the mitted means of pedestrian access, which, if unsafe, would be in violation of the cited standard. But that type of situation is not demonstrated by the present record.
Accordingly, finding both paragraphs of Citation Item number 1 unsustained by substantial evidence of record, I believe the penalty proposed for these alleged violations should be vacated.
With respect to Citation Item number 2, relating to the condition of the hydro-crane cab windshield, the allegation was in effect, that the cited standard was violated in that the cab windshield was not in good [*45] condition by reason of cracks that obstructed the operator's vision. Mr. Wagner, one of three operators of the crane at the time of inspection testified that the hairline cracks running from the lower left corner of the windshield did not impair his vision at all, nor had the other operators complained about the condition even though it had existed for sometime (Findings of Fact 30-31). Inspector Kay testified that the cracks were substantial, radiating over one-third to one-half of the windshield from the lower left corner (Finding of Fact 27), a condition not rebutted by Mr. Wagner's drawing of the cracked windshield (Respondent's Exhibit 8).
In Kay's opinion, such cracks, particularly under tunnel conditions, obstructed the operator's vision (Finding of Fact 28). The fact that a purchase order for a cab windshield to replace the subject windshield was placed by Respondent on October 5, 1971, over a month before the inspection date indicates that some authorized employee of Respondent, other than Mr. Wagner, must have also considered the windshield to be in a condition warranting replacement. The fact that the windshield was not actually replaced until several days [*46] after the inspection appears to be happenstance, mainly due to delay in getting the windshield in stock (Finding of Fact 29).
The fact that the operators of the crane did not consider the windshield unsafe, while a relevant factor, cannot be determinative of the question of whether the windshield was in good condition, as required by the cited standard. Under the tunnel conditions, including limited visibility, noise, and "bad ground," established in this case the requirement of good condition when applied to a crane cab windshield must reasonably mean more than mere serviceability based on the subjective opinion of the crane operator. It is arguable, of course, that by placing a replacement purchase order Respondent was merely anticipating an indefinite future need when the cracks might become worse and require immediate replacement. But that argument has not been made nor would the present record appear to sustain it even if asserted.
On balance and in the circumstances, Complainant has sustained its burden of proof respecting this alleged violation. The fact that Complainant had previous to the inspection taken affirmative action to have the windshield replaced may be weighed [*47] in assessing the penalty for this violation, taking into consideration the gravity of the violation, Respondent's size as an enterprise, good faith in maintaining a safety program and history of violations under the Act. As to the gravity of the violation, the record is unclear as to the number of employees exposed to risk of injury by reason of the condition of the cab windshield. But it may reasonably be assumed that the number of employees exposed was substantial since the crane was operated on a three shift basis (Tr. 118). While there is no evidence that Respondent was careless or negligent in anticipating or processing the purchase order, the fact remains that employees were exposed to the cracked windshield for a period of almost two months from the date of the purchase order (Finding of Fact 29). While there were no apparent precautions taken against injury by reason of the condition of the windshield, the degree of probability of occurrence of such injury appears no more than average, even under tunnel conditions.
Taking into consideration such other relevant factors as Respondent's relatively large size (a joint venture of some 650 daily employees), its good [*48] faith safety program, and no previous history under the Act (Findings of Fact 38-39), I would conclude that the proposed penalty is not unreasonable.
Respecting Citation Item number 3, the alleged welding arc violation, the evidence of record clearly establishes that Complainant has failed to sustain its burden of proving that employees working in the east end of the tunnel were not protected from the direct rays of the welding arc. It should be noted at the outset that, as pinpointed by Respondent at the hearing (Tr. 125-126) and never explained or corrected by Complainant, the standard cited (29 C.F.R. Sec. 1518.351(e)) deals with fire prevention and the standard which apparently should have been cited was 29 C.F.R. Sec. 1518.354(e), relating to shielding of the welding arc rays. Since the evidence submitted by both parties appear to relate to the latter standard, I have, in effect, construed such submissions as an acceptable stipulation by the parties that the latter standard is properly the standard in issue under Citation Item number 3, without procedural detriment to either party.
On the merits, I am satisfied that Mr. Littleton's testimony that the employees [*49] and other persons working in the vicinity were effectively shielded, insofar as practicable, from the direct rays of the welding arc in question, corroborated by the drawing of the pertinent area of the tunnel (Respondent's Exhibit 7), substantially rebuts Inspector Kay's testimony that the arc rays were shielded only on the west side, leaving employees to the south and east unprotected (Findings of Fact 33-35). While it was admitted that someone looking up from underneath the scaffold supporting the welder's bench could see the direct rays of the arc, Mr. Wagner testified that neither he nor 17 other members of the crews of the trains which operated under said scaffold had ever seen more than the glow or reflection of the welding arc rays, which did not hurt their eyes (Findings of Fact 35-37).
Complainant's proof of Respondent's alleged violation of Citation Item 3 being insufficient, the proposed penalty for this violation should be vacated.
CONCLUSIONS OF LAW
1. Respondent is and, at all times material hereto, was an employer within the meaning of Section 3(5) of the Act, being engaged in a business affecting commerce who has employees.
2. Respondent is and, at all times [*50] material hereto, was subject to the requirements of the Act, including Section 5(a)(2), and the standards duly promulgated thereunder.
3. Pursuant to Section 6 of the Act, by publication of 29 C.F.R. 1910.12 in the Federal Register of May 29, 1971 (36 F.R. 10469), the Complainant duly adopted as occupational safety and health standards 29 C.F.R. Sections 1518.800(a)(1)&(2), 1518.800(k)(4), 1518.351(e), and 1518.354(e), which standards became effective on August 29, 1971.
4. The Commission has jurisdiction of the parties and the subject matter herein under the provisions of Section 10(c) of the Act.
5. The citation for non-serious violation, notification of proposed penalty, notice of contest and all pleadings in this matter were properly served or posted in accordance with the notice and service requirements of the Act, including Section 9, and the pertinent regulations duly promulgated thereunder, including Section 2200.7 of the Commission's Rules of Procedure (29 C.F.R. Part 2200; 36 F.R. 17409, 17410, August 31, 1971).
6. Complainant has not established by substantial evidence of record that on November 30, 1971, Respondent violated the occupational safety standard [*51] set forth at 29 C.F.R. Section 1518.800(a)(1)&(2) as adopted by 29 C.F.R. Section 1910.12, by (1) not providing a safe means of access at a point about 1300 feet inside the Straight Creek Tunnel, in that a ramp designed for the use of vehicular traffic did not have a separate walkway for employee pedestrians; and (2) by not providing a safe means of access within said tunnel, in that the walkway area which employees were forced to use presented tripping hazards along railroad tracks leading to tunnel heading.
7. Accordingly, the alleged violation of the aforecited standard, being Item number 1 of the citation, and the proposed penalty of $150.00 relating thereto, are not proper under law and should be vacated.
8. Complainant has established by substantial evidence of record that on November 30, 1971, Respondent violated the occupational safety and health standard set forth at 29 C.F.R. 1518.800(k)(4), as adopted by 29 C.F.R. Section 1910.12, in that the cab windshield of Hydrocrane 12.008 was cracked, thereby obstructing the vision of the operator.
9. Based on Conclusion of Law 8, Item number 2 of the citation herein, together with the proposed penalty of $15.00 relating [*52] thereto, being not unreasonable and consistent with the provisions of Section 17(c) and (j) of the Act, should be affirmed.
10. Complainant has not established by substantial evidence of record that on November 30, 1971, Respondent violated occupational safety and health standard 29 C.F.R. Section 1518.351(e) or Section 1518.354(e), as adopted by 29 C.F.R. 1910.12, in that employees in the east end of the tunnel were not protected from the direct rays of the welding arc.
11. Based on Conclusion of Law 10, Item number 3 of the citation herein, and the proposed penalty of $15.00 relating thereto, are not proper and should be vacated.
Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, good cause appearing, it is hereby ORDERED, that:
1. Complainant's citation for non-serious violation and notification of proposed penalty of $150.00 issued on December 10, 1971, for alleged violation of occupational safety and health standard 29 C.F.R. Section 1518.800(a)(1)&(2), as adopted by 29 C.F.R. Section 1910.12, be, and hereby are, vacated.
2. Complainant's citation for non-serious violation and notification of proposed penalty of $15.00 issued [*53] on December 10, 1971, for violation of occupational safety and health standard 29 C.F.R. Section 1518.800(k)(4), as adopted by 29 C.F.R. Sec. 1910.12, be, and hereby are, affirmed.
3. Complainant's citation for non-serious violation and notification of proposed penalty of $15.00 issued on December 10, 1971, for alleged violation of occupational safety and health standard 29 C.F.R. Section 1518.351(e) (1518.354(e)), as adopted by 29 C.F.R. Section 1910.12, be, and hereby are, vacated.