Docket No. 403

EMORY H. MIXON

OSHRC Docket No. 403

Occupational Safety and Health Review Commission

December 11, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On September 14, 1972, Judge James D. Burroughs issued his decision and order in this case, modifying the Secretary's citation for serious violation by ruling that it constitutes a non-serious violation and by vacating the proposed $600 penalty.

On September 25, 1972, former Commissioner Alan F. Burch directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 661(i), hereinafter referred to as "the Act"), in order to determine whether the violation is serious within the meaning of section 17(k) of the Act.

The Commission has considered the entire record and adopts the Judge's decision insofar as it is consistent with the following.

Respondent was cited for a serious violation of 29 C.F.R. 1910.265(d)(1)(i)(a) for utilizing a tripping mechanism on a logging truck in such a manner as to position the operator on the unloading side of the truck, thus exposing him to the hazard of falling logs. The final stage of the unloading process involved attaching a chain to the tripping device and, from a maximum distance of approximately 30 feet, pulling the chain, thereby triggering the tripping mechanism, allowing the stakes securing the logs to swing to the ground, and releasing the logs.

Judge Burroughs states that there is "little dispute as to the consequences of a load of logs falling on a driver -- death or serious physical harm could result." However, Judge Burroughs has misinterpreted section 17(k) of the Act by requiring substantial probability that an accident occur as well as substantial probability that death or serious injury could result in order for a violation to be serious. The Commission has held that only the latter circumstance is relevant to the seriousness of a violation. The probability of an accident occurring (or of contracting a disease) is relevant to the gravity of the violation and is considered in the process of assessing an appropriate penalty. See, Secretary of Labor v. Baltz Brothers Packing Company Secretary of Labor v. Standard Glass and Supply Company, Secretary of Labor v. Crescent Wharf and Warehouse Company, Secretary of Labor v. Natkin and Company, Mechanical Contractors,

In the instant case the violation was properly cited as being a serious violation, within the meaning of section 17(k) of the Act. In view of the limited exposure to the violation and the remote likelihood of the occurrence of an accident, and in consideration of respondent's small size, considerable good faith and the absence of evidence regarding previous violations of safety and health regulations, we assess a penalty of $100.

It is ORDERED that the Judge's decision be modified in accordance with this opinion, that the citation for serious violation be affirmed and that respondent be assessed a penalty of $100.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in part: I concur that the record in this case establishes that the respondent violated section 5(a)(2) of the Act by virtue of his failure to comply with the occupational safety and health standard published as 29 C.F.R. 1910.265(d)(1)(i)(a). He admitted this much. However, I dissent from the discussion concerning the characterization of violations as being serious or nonserious pursuant to section 17(k) of the Act. In cases of this kind there isn't a dime's worth of difference between the two as I pointed out in the Portland Stevedoring, n1 California Stevedore, n2 and Tacoma Boatbuilding n3 cases. The Judge correctly decided this case and his decision should have become the final order of this Commission some 14 months ago.

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n1 Secretary of Labor v. Portland Stevedoring Co.,

n2 Secretary of Labor v. California Stevedore & Ballast Co.,

n3 Secretary of Labor v. Tacoma Boatbuilding Co., Inc.,

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The Judge's reasons for assessing no penalty were persuasive. The Commission gives no reason for disagreeing with that judgment. It merely substitutes its opinion that $100 is appropriate. If there is some justification for this change, it should be stated so that $100 penalty-assessment mistakes can be avoided in the future. However, if it is merely the substitution of one subjective judgment for another -- as I suspect it is -- that fact ought to be admitted as I doubt that Congress intended for there to be two levels of adjudication in this Act, each applying subjective criteria to penalty assessments.

[The Judge's decision referred to herein follows]

BURROUGHS, 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 for Serious violation issued by the Secretary of Labor (hereinafter referred to as the complainant) pursuant to Section 9(a) of the Act, and a proposed assessment of penalty in the amount of $600.00 upon such alleged violation pursuant to section 10(a) of the Act.

A Citation, alleging non-serious violations of two standards, and a Citation for Serious Violation, alleging a violation of 29 C.F.R. 1910.265(d)(1)(i)(a), were issued to respondent on December 17, 1971. On the same date, a Notification of Proposed Penalty was issued to respondent proposing a $600.00 penalty for the serious violation and no penalties for the two non-serious violations.

The respondent, within fifteen days of the receipt of the citations, notified the complainant that it wished to contest the Citation For Serious Violation and the proposed penalty of $600.00. The Citation for Serious Violation described the alleged violation of 29 C.F.R. 1910.265(d)(1)(i)(a) as follows:

Stake ("standard") tripping mechanism on logging truck constructed and used in a manner that allows the operator to be positioned on the unloading side while operating the tripping device.

The complainant advised the Occupational Safety and Health Review Commission of the notification of contest by respondent. The Commission assigned the case to this Judge for a hearing pursuant to the provisions of Section 10(c) of the Act. A hearing was held in Bishopville, South Carolina, on May 19, 1972. No additional parties desired to intervene in the case.

ISSUES

Respondent concedes that he did not meet the requirements of 29 C.F.R. 1910.265(d)(1)(i)(a) at the time of inspection (Tr. 95). This leaves for determination the questions of whether the violation was a serious violation and the amount of penalty that should be asserted.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving this proceeding.

Respondent, Emory H. Mixon, is a sole proprietor having a place of business and doing business at Bishopville, South Carolina, where he is engaged in logging operations (Tr. 6). Respondent has been in the logging business since 1938. He purchases the timber, cuts it with his own crew and then sells it on the market (Tr. 6). In some instances he cuts timber for a mill under a contract that pays so much to cut and deliver the logs (Tr. 7). Most of his work stems from timber purchase contracts. He also cuts pulpwood (Tr. 6). Respondent's principal customers are Miller Lumber Company, Camden Hardwood Corporation, Sonoco Products Company and South Carolina Industries (Tr. 11).

Respondent employs approximately ten full time employees as drivers, saw operators, loader operators and skidder operators. He also has a foreman (Tr. 7-8). Some of the employees perform more than one job. The work for the whole operation includes the use of chain saws, a hydraulic loader, skidders and trucks and trailers for hauling the logs (Tr. 8). The equipment is owned by the respondent (Tr. 8-9).

Normal operations involve the chain saw operator cutting down the trees and the skidder operator skidding the trees to a landing where other chain saw operators usually cut them into lengths (Tr. 9). The logs which are cut vary in length from 10 to 16 feet. Pulpwood logs which are not cut sometimes are as long as 50 to 60 feet (Tr. 33-34). The logs are then loaded onto a trailer by the use of a hydraulic loader. The loader is a crane-type machine that has a hydraulic grapple on the end of the boom. The operator maneuvers the grapple from a control stand. He opens the grapple, closes it on the log and swings it around to the trailer and releases it (Tr. 9).

Once the logs are loaded on the trailers, chains are placed around them for stability (Tr. 9). The chains are 30 feet long and are carried across the truck with the hydraulic loader (Tr. 10). The chains are usually placed somewhere in the middle of the load and the entire load is circled. The frame of the truck is not included so that, in effect, a bundle is made out of the logs (Tr. 46). Binders, approximately 24 to 30 inches in length, are placed on the chains and tightened by hand (Tr. 10). The binder is a clamping device that hooks into two links of the chain and acts in a manner to tighten the chain to hold the logs in a tight bundle to keep them from shifting (Tr. 46). The number of binders used depends upon the type of load and varies from two to four. Once the binders are secured, the truck is ready to go to the mill (Tr. 10).

Trailers used by respondent for hauling logs are of the two, three and four bolster type. Most of them are of the two bolster type (Tr. 18-19). The two bolster trailers are adjustable according to the length of logs that are hauled (Tr. 19-20). They have four standards that vary in length (Tr. 20).

The standards consist of two separate pieces. One is attached to the trailer permanently and the other is an extension (Tr. 25). The standards are extended into the upright position. Respondent usually uses metal pipes that fit into the standards for purposes of extensions (Tr. 42). The standards are usually extended to an approximate height of six feet (Tr. 20). They are eight feet apart (Tr. 48). The standards are hinged to swing at 180 degrees, i.e., from vertical all the way until they point to the ground (Tr. 44). There are two standards against each bunk of logs which must be tripped down in the unloading procedure (Tr. 25).

The standard is fastened vertically by taking the cable provided and wrapping it around the standard over a small projection provided for that purpose to assist in holding the standard upright. The cable is then fastened into a clamp which is then closed. The clamp pivots and is hooked into the clevis on the cable. It is then rotated in a circle until the cable is tight. A safety pin is inserted so that the clamp can not rotate back out of the position into which it has been placed (Tr. 44-45).

The tripping mechanism on the standards consist of several components, including a cable, a mounting bracket and the latch that releases the cable. It also contains a safety pin to prevent the mechanism from tripping until one is ready for it to trip (Tr. 22). Prior to the inspection by the compliance officer in this case, the standards on both sides of the trailers were equipped with tripping mechanisms. This was necessitated by the fact that at some mills the logs had to be unloaded on the left and at other mills they had to be unloaded on the right (Tr. 21, 26, 40-41).

When the trailer arrives at the mill it must be unloaded. The unloading process varies according to the mill to which the logs are hauled (Tr. 10). The unloading machines at the various mills differ in their operations. None of respondent's principal customers follow the exact procedure in unloading logs (Tr. 11).

The tripping mechanism on the standard is not used at South Carolina Industries. The unloading machine has a top clamp that unloads the trailer with one lift (Tr. 11). The unloader resembles a fork lift with a top clamp that holds the load on the forks (Tr. 39). In this instance the respondent's driver removes the binders and chains and walks away from the trailer while the logs are unloaded (Tr. 11). The tripping mechanism is also not used with the unloading of the pulpwood logs of 50 or 60 feet in length (Tr. 34).

Where the lift at the mill does not have a top clamp the tripping mechanism is used. In that case the lift operator goes into the side of the trailer with the forks underneath and the front of the lift against the logs. The respondent's driver then removes the binders and the chains. Sometimes the lift operator will hold the logs while the driver trips down the standards. Whether this procedure is followed depends upon the size of the lift. If the lift is large enough the operator will usually hold the logs with the lift while the standards are tripped down (Tr. 14).

Prior to the inspection by the compliance officer, the first step in the unloading procedure was to loosen the binders and remove the chains from the logs (Tr. 46-47). One of the chains was then used to trip the mechanism. The chains have a hook on them. The driver took the chain and went up to one standard and manually removed the safety pin and hooked the chain into the hole that is provided for it in the clamp or latch, which when released lets the cable fall around the standard (Tr. 23, 30, 47-48). At that point the driver was standing inside the end of the logs on the trailer (Tr. 48-49). After the chain was hooked into the clamp, the driver walked the length of the chain directly to the front or the rear of the truck and gave the chain a pull (Tr. 50). The cable was released and the standard swung down. The procedure was then repeated for the remaining standard or standards, depending upon the trailer (Tr. 51). There was no set procedure as to whether the driver tripped the rear or the front standard first (Tr. 29).

The chain used to attach to the tripping mechanism was approximately 30 feet in length (Tr. 26). When the driver tripped the mechanism he stood at the end of the chain and straight forward or straight behind the trailer at an angle of approximately 180 degrees from the tripping mechanism (Tr. 16, 26-27). Under normal conditions the size of the load determined the extent of the force necessary to trip the mechanism. The heavier the load the more pressure that was exerted on the standard. The chain had to be given a good pull to trip the mechanism. The mechanism could not be accidentally tripped by merely hooking the chain in it (Tr. 66). The mechanism was not easily tripped even when there was no load on the standard (Tr. 68). The purpose of using the chain was to get away from the logs when unloading (Tr. 67).

All of respondent's drivers are experienced. A new driver spends time with an experienced driver prior to unloading a load of logs by himself. The whole unloading procedure is explained and the new driver watches (Tr. 30). Safety is stressed even if the driver has some experience (Tr. 60). Under the procedure used prior to the inspection, instructions were given on how to operate the chain (Tr. 65). It was always emphasized that the driver was to stand in the front or rear of the truck the length of the chain before tripping the mechanism (Tr. 16, 26, 33, 65-66).

The tripping device in use prior to the compliance officer's inspection had been used since 1960. All of respondent's drivers had been instructed in how to use it. The tripping mechanism was used in unloading the logs which vary in size from 10 to 16 feet (Tr. 33). The drivers were under orders when tripping the mechanism to stand the full length of the chain either in the front or the rear of the trailer (Tr. 34). Under such a procedure the logs rolled to the side several feet from where the driver was standing in the front or the rear of the truck (Tr. 35-36). The respondent never had an employee injured by the tripping mechanisms during the approximately eleven years he used them (Ex. A; Tr. 35).

Robert B. Seegars, a truck driver for respondent, was killed on December 6, 1971 (Tr. 32). He was found dead on the log yard at Camden Hardwood Corporation. He was killed by falling logs (Tr. 33). There were no witnesses to the accident. He was found lying next to a logging truck with some logs on the ground beside him (Tr. 73-74). The tripping mechanism had nothing to do with his death. It had not been touched (Tr. 34).

Compliance Officer Donald Fitzwaler conducted an inspection of respondent's workplace on December 9, 1971 (Tr. 72, 74). He also went to investigate the fatality of Mr. Seegars (Tr. 74). During the inspection he determined that the tripping mechanisms did not conform to the safety standard as set forth at 29 C.F.R. 1910.265(d)(1)(i)(a) (Tr. 75). A Citation for Serious Violation was later issued on December 17, 1971 (Tr. 76). The compliance officer was of the opinion that the fact that the tripping mechanism was on the unloading side presented a serious potential of an accident occurring that would result in death or serious physical harm to the driver (Tr. 77).

The compliance officer believed there was nothing to require the driver to go 30 feet away. He also noted that the driver had to trip one standard at a time and go back up next to the load and hook on to the second standard after the first standard has been tripped. He was also of the opinion that there was nothing to preclude the individual from possibly tripping or falling and accidentally tripping the mechanism as he walked from the truck (Tr. 83). The area director concurred in the compliance officer's views in issuing the Citation for Serious Violation (Tr. 86).

The complainant proposed a penalty of $600.00 for the alleged serious violation. In arriving at the penalty of $600.00, the complainant started with an unadjusted penalty of $1,000.00 and allowed a 40 percent reduction. Respondent was allowed 10 percent reduction for good faith, a 20 percent reduction for previous history and a 10 percent reduction for size (Ex. 6; Tr. 79-80).

Respondent was unaware of the standard prescribed at 29 C.F.R. 1910.265(d)(1)(i)(a) at the time of the inspection. When informed of the standard he told the compliance officer that he would make the necessary corrections immediately (Tr. 81). The area director informed the respondent that if the tripping mechanism was in fact operated by the driver standing 30 feet from the tripping mechanism in the front or the rear of the trailer then it would be a safe procedure even though it was not in compliance with the standards (Tr. 88).

Since the compliance officer's inspection, one side of the trailers have been made permanent. The standards were welded up on one side and the tripping mechanism placed on that side so that it is on the opposite side of the load being tripped (Tr. 30-31). Some of the standards were made permanent on the driver's side and some on the opposite side (Tr. 31).

LAW AND OPINION

The primary question for determination must be resolved by an interpretation of Section 17(k) of the Act in relation to the facts of this case. Section 17(k) provides as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence know of the presence of the violation.

It is clear that under Section 17(k) the Commission must base an adjudication that a violation is a serious violation upon findings of fact which support "a substantial probability that death or serious physical harm could result" from the charged condition or practices. Mere proof of the violation, with nothing more, proves only a non-serious violation.

The phrase "Substantial probability that death or serious physical harm could result" construed in the context of this case is dependent upon two elements: (1) the likelihood or probability that an accident could occur as a result of the violation of 29 C.F.R. 1910.265(d)(1)(i)(a) and (2) the severity of the injury likely to result if an accident occurred. These two elements are mutually dependent. There would appear to be little dispute as to the consequences of a load of logs falling on a driver -- death or serious physical harm could result. Accordingly, the crux of this issue is whether there was a "substantial probability" that an accident would occur.

The key words in Section 17(k) of the Act are "substantial probability." This phrase obviously was intended to connote something more than whether an accident could result. The deciding factor is not whether there could be an accident but whether there is a "substantial probability" of an accident. A mere possibility or conjecture that an accident would occur is insufficient for purposes of substantiating a serious violation.

Congress qualified the word "probability" by adding the additional requirement that there be a "substantial" probability that death or serious physical harm could result prior to a condition or practice being classified as a serious violation. The word "substantial" was obviously intended to add certainty and objectivity to the word probability. It would seem logical that Congress sought to insure that Section 17(k) was invoked only where something more than merely probable was shown. How much more? This question must be resolved by more closely examining the word "substantial."

Ordinarily, in reading a statute one must give words of common usage their commonly-understood meaning unless it is clear from a reading of the statute that a different meaning was intended or unless such construction would defeat the manifest intent of the legislature. There is no indication in the Act or legislative history that Congress intended the words "substantial" and "probability" to be construed in any manner other than by their commonly understood meaning.

The word "substantial" is susceptible to different meanings according to the circumstances of its use. It is variously defined by the lexicographers as: actual, essential, something worthwhile, material, not illusive, real, being of moment, important, true. See Webster's Third New International Dictionary (1971) See also 83 C.J.S., Substantial, p 762; 40 Word and Phrases, p. 757. There may be other meanings which would give the word less substance than these, but it is believed that Congress had concepts similar to these in mind in choosing the word.

While many illustrations of the use of the word "substantial" may be found, considerable difficulty is experienced in attempting to lay down a rule of thumb fixing its exact meaning. It is an illusive word and not an exact term subject to a rule of thumb. Perhaps the most that can be said for the word is that any consideration of it must be examined in its relation and context, and its meaning gauged by all the surrounding circumstances. See Busch v. Service Plastics, Inc., 261 F. Supp. 136, 142 (N.D. Ohio 1966). Undoubtedly its use as an adjective modifying probability was intended to imply that there had to be more than a reasonable probability but not such a probability as to be equivalent to reasonable certainty.

The word "probability" is susceptible to exactitude more so than its modifier "substantial." It has been defined as meaning "the state, character, or quality of being probable; that which is probable; appearance of truth, likelihood; verisimilitude." 72 C.J.S., Probability, p. 968. Applying the rule of "noscitur a sociis" we find that the term "probable" implies more than a mere possibility and more than mere conjecture. "It connotes being so supported by evidence as to incline the mind to belief rather than disbelief, yet leaving room for doubt." 72 C.J.S., Probable, p. 969. "Probable" has been construed to be more than 50 percent of actual. Price v. Neyland, 320 F.2d 674, 678 (D.C. Cir. 1963). It has also been defined as meaning likely and has been held to be synonymous with "apparent." 72 C.J.S., Probable, p. 970.

It seems clear that the phrase "substantial probability" was intended to provide a reasonably definite objective standard by which one could understand and contemplate what conduct would be construed as a serious violation. It must be considered to have reference to those situations where there is a very real likelihood of an accident resulting in which an employee is likely to be killed or suffer serious physical harm. The likelihood of such an event occurring should not be a mere conjectural probability but one based on evidence. The circumstances of each case must be considered and the weight of evidence must point to such a result. The evidence must be sufficient to incline the mind to believe that death or serious physical harm will occur rather than disbelieving the occurrence of such a happening.

When the words "substantial probability" are construed within their proper context as applicable to the circumstances of this case, it is abundantly clear that the evidence does not reveal a "substantial probability" of death or serious physical harm but rather one of possibility. There was little likelihood of an accident occurring. The sequence of events in tripping the mechanism were not per se an unsafe procedure insofar as the respondent's drivers were concerned. The area director admitted that if respondent's procedure was dutily followed in every instance the drivers would have been reasonably safe (Tr. 88). Certainly if the mechanism was tripped 27 to 30 feet to the front or the rear of the trailer there would have been little danger to the drivers. The logs would have rolled to the side several feet from where they were standing.

The compliance officer testified that there was a "serious potential" of an accident occurring as a result of the tripping mechanism being on the unloading side (Tr. 77). Obviously, in any evaluation of the potentialities present as a result of the tripping of the mechanism by the chain on the unloading side, one has to admit that the possibility of an accident always exists. However, an event which is only possible can not be spoken of as probable, for the latter refers to those things or events which are likely to happen. Things which are possible may never happen, but those which are probable are those which do happen with such frequency or regularity as to become a matter of inference. An accident in this case was only remotely possible and not probable. The Act does not require that a procedure be made accident proof in order to prevent a finding of a serious violation.

The evidence reflects that respondent understood the exposure of his employees to a possible danger and was concerned with the safety of all his employees (Tr. 96). All of respondent's drivers were instructed in how to operate the tripping mechanism and were under instructions to stand the full length of the chain to the front or the rear of the trailer (Tr. 33-34). If instructions were followed, then the drivers should have been safe. The mechanism could not be accidentally tripped by merely hooking the chain in it (Tr. 66). Respondent's past history conclusively demonstrates the safeness of the procedure followed by the drivers. The procedure was used for approximately eleven years without an employee being injured as a result of the manner in which the mechanism was tripped (Ex. A; Tr. 35).

The evidence is clear that respondent stressed safety in his unloading operations. An experienced driver always spent time with a new driver prior to his unloading a trailer by himself (Tr. 30). It was always emphasized that the driver was to stand in the front or the rear of the trailer, at an angle of approximately 180 degrees to the standard being tripped, the length of the chain before tripping the mechanism (Tr. 16, 26, 33, 65-66). Complainant has introduced no evidence to reflect that respondent's drivers did not always follow the prescribed procedure. In fact, the evidence introduced tended to substantiate respondent's contention that the procedure was followed. One of respondent's drivers, B. W. Brannon, was called as a witness for complainant. He testified that in his two years of employment with respondent the drivers always used the chain in tripping the mechanism and stood to the front or rear of the trailer (Tr. 69). He also testified that the safety aspects of the tripping mechanism were discussed with him even though he was an experienced driver and familiar with the procedure (Tr. 60).

The compliance officer believed a serious violation was committed since there was nothing to require the driver to go to the end of the chain prior to pulling the mechanism (Tr. 83). The evidence is convincingly clear and, indeed, undisputed that respondent required his drivers to go to the end of the chain and stand at the front or rear of the trailer so that they would be safely away from the logs rolling off the truck. There is no evidence to indicate that respondent had any reason to foresee that his drivers would not follow this procedure. Certainly there is nothing to indicate that there was a "substantial probability" that the instructions would not be followed. After all, once the safety feature was stressed the drivers should have been aware of the hazard and that it was to their advantage to follow instructions. The compliance officer's position implies that the drivers would be more likely to not follow instructions even though they were obviously aware of the consequences. This reasoning is simply not plausible.

The compliance officer was also of the opinion that there was nothing to preclude the driver from tripping or falling and accidentally activating the mechanism as he walked from the trailer (Tr. 83). Undoubtedly this possibility existed, but the facts do not justify any conclusion that there was a "substantial probability" of such an event. The fact that the driver might have tripped does not automatically mean that he would have exerted sufficient pressure on the chain to activate the mechanism. In addition the possibilities of injury in such an event were minimized by the fact that in many instances the lift operator held the logs with the lift while the driver tripped down the standards (Tr. 14).

A careful evaluation of the evidence does not support complainant's assertion that the violation was a serious violation within the intendment of Section 17(k) of the Act. Complainant's position places primary emphasis on the consequences of an accident rather than on the probability that an accident would occur from the hazard. There was only a remote possibility of an accident occurring from the hazard. Since there was little likelihood of an accident taking place the violation must be classified as non-serious.

APPROPRIATENESS OF PENALTIES

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense.

The Commission in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., penalties do little to effectuate the objective of the Act, namely, to insure a safe and healthful workplace. The same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., Small monetary penalties were eliminated in both cases since the violations had been abated. After due consideration of the four criteria provided by Section 17(k) and applying the same rationale to the facts of this case, it is concluded that the assertion of a small penalty for the non-serious violation is not warranted.

The respondent agreed to correct the situation and the necessary changes were made immediately. The respondent was convincing in his testimony that he was vitally interested in the safety of all his employees, which included three sons. He was unaware of the standard prior to the inspection and had never seen a tripping mechanism that was activated from the opposite side prior to his investigating the matter as a result of the inspection (Tr. 96-97).

CONCLUSIONS OF LAW

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

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

3. The respondent violated 29 C.F.R. 1910.265(d)(1)(i)(a). The violation was of the non-serious type.

4. No penalty should be assessed against respondent as a result of the violation.

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

ORDERED:

1. That the respondent committed a non-serious violation of 29. C.F.R. 1910.265(d)(1)(i)(a) and

2. That the respondent is not liable for any penalty as a result of the violation.