APEX PAPER BOX COMPANY

OSHRC Docket No. 434

Occupational Safety and Health Review Commission

October 11, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On June 29, 1973, Review Commission Judge David G. Oringer issued a decision in this case holding that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) for failure to comply with 19 occupational safety and health standards promulgated under section 6 of the Act. He assessed a penalty of $731.25. Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

After reviewing the record in this case and the brief filed by complainant, the Commission finds that the Judge erred in sustaining a charge that respondent did not comply with the requirements of the occupational safety and health standard published as 29 CFR 1910.157(d)(1), (2) and (3)(iv) but that he ruled correctly when he found respondent in violation of all the other charges.

The cited standard is concerned with inspection and maintenance of fire extinguishers. n1 The citation alleged noncompliance therewith because of "Failure to inspect, maintain, and denote person performing service, by initials or signature, on portable fire extinguishares."

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n1 29 C.F.R. 1910.157(d)(1), (2) and (3)(iv) provide as follows:

(d) Inspection, maintenance, and hydrostatic tests -- (1) General. (i) The employer shall be responsible for such inspection, maintenance, and testing.

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The Judge found that the evidence of record in this case established that respondent failed to conduct inspections of portable fire extinguishers as required by the cited standards. This finding is based on a misapplication of two independent requirements of the regulation: (1) that extinguishers shall be inspected monthly, and (2) that they shall bear a tag to show the "maintenance or recharge date" and the initials or signature of the person who performs this service.

The Judge's conclusion that respondent failed to conduct monthly inspections was based on the fact that one fire extinguisher in respondent's plant had a tag which was dated and initialed over a year period to the date of the inspection n2 and that a check of other fire extinguishers "revealed" that monthly inspections had not been performed and that intervals between inspections were of a longer duration than one month. The evidence shows that the one tag had been signed by an outside concern which performed yearly maintenance checks and that the other fire extinguishares which were checked had tags which did not reveal that they had been inspected monthly. This evidence to the record does not support the Judge's conclusion that a violation has been established.

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n2 Complainant did not allege that the tag was not "durable" or "securely attached" as specified in 29 C.F.R. 1910.157(d)(3)(iv).

(ii) For details of conducting needed inspections, proper maintenance operations, and required tests, see NFPA No. 10A-1970, Maintenance and Use of Portable Fire Extinguishers.

(2) Inspection. (i) Extinguishers shall be inspected monthly, or at more frequent intervals when circumstances require, to insure they are in their designated places, to insure they have not been actuated or tampered with, and to detect any obvious physical damage, corrosion, or other impairements.

(ii) Any extinguishers showing defects shall be given a complete maintenance check.

(3) Maintenance. (iv) Each extinguisher shall have a durable tag securely attached to show the maintenance or recharge date and the initials or signature of the person who performs this service.

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All that was established by the evidence in this case is that no monthly inspections were recorded on the tag attached to the extinguisher but there is no such requirement in the cited standard.

Insofar as this case is concerned there are two separate requirements: (1) that inspections be performed on a monthly basis and (2) that a tag be duly attached to show the "maintenance or recharge" date. There is no requirement that there be a tag showing the date of the monthly inspection. The record indicates that respondent has met with both of these responsibilities. n3

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n3 Mr. Abe Greitzer who appeared for respondent made this point rather clearly when he stated "Those fire extinguishers were inspected by an outside cgmpany. Not a monthly inspection. It was a yearly service which we still maintain, the yearly service, but we have a monthly inspection that we perform ourselves."

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Complainant has the burden of proving that monthly inspections were not made. He cannot sustain that burden merely by showing that tags affixed to the extinguishers indicate inspections of longer duration. Nor would such a showing shift the burden of proof. See Secretary v. Collyer Associates, Inc.,

For the foregoing reasons, it is hereby ordered that the item of the citation alleging a violation of 29 CFR 1910.157(d)(1), (2) and (3)(iv), and the penalty of $25.00 assessed therefor be dismissed. In all other respects, the Judge's decision is affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I agree with the final disposition of this case for the following reasons. The standard in question, section 1910.157, is a national consensus standard adopted by the Secretary of Labor under section 6(a). The source of the standard is National Fire Protection Association (NFPA) standard 10A-1970, standard for the installation for portable fire extinguishers. See section 1910.165a. NFPA standard 10A-1970 concerning the maintenance and use of portable fire extinguishers is also relevant. See section 1910.157(d)(1)(ii). The latter standard makes a distinction between the "inspection" of a fire extinguisher and its "maintenance."

The term "inspection" is defined as follows:

"Inspection" is a "quick check" that an extinguisher is available and will operate. It is intended to give reasonable assurance that the extinguisher is fully charged and operable. This is done by seeing that it is in its designated place, that it has not been actuated or tampered with, and that there is no obvious physical damage or condition to prevent operation. Para. No. 1210.

The term "maintenance" is separately defined as follows:

Maintenance is a "thorough check" of the extinguisher. It is intended to give maximum assurance that an extinguisher will operate effectively and safely. It includes a thorough examination and any necessary repair, recharging or replacement. It will normally reveal the need for specific testing of an extinguisher. Para. 1310.

Under these circumstances, it is concluded that the "maintenance" to be shown under section 1910.157(d)(3)(iv) does not require the recording of inspections of the type described above on the tag required by its terms.

[The Judge's decision referred to herein follows]

ORINGER, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ), hereinafter called "the Act," in which the Respondent contested a Citation issued against it by the Complainant under the authority vested in the said Complainant by Section 9(a) of the Act. The Citation alleges that as the result of an inspection of a workplace under the ownership, operation or control of the Respondent, located at 5601 Walworth Avenue, Cleveland, Ohio, the Complainant ascertained that Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. As a result of the inspection, the Respondent, on January 11, 1972, was issued a Citation for nineteen (19) nonserious alleged violations, as follows:

Item number

Standard or regulation allegedly violated

 1.

29 CFR 1910.36(d)(1) & (2)

 2.

29 CFR 1910.157(d)(1)(2) & (3)(iv)

 3.

29 CFR 1910.314(d)(4)(iii)(d)

 4.

29 CFR 1910.314(d)(4)(iii)(c)

 5.

29 CFR 1910.157(a)(2) & (3)

 6.

29 CFR 1910.36(b)(2)(5)(6)

 7.

29 CFR 1910.36(b)(2)(4)(5)(6)

 8.

29 CFR 1910.314(d)(4)(iii)(c)

 9.

29 CFR 1910.22(a)

10.

29 CFR 1910.36(b)(5)

11.

29 CFR 1910.36(b)(2)(4)(5) & (6)

12.

29 CFR 1910.36(b)(2)(4)(5) & (6)

13.

29 CFR 1910.314(d)(4)(iii)(d)

14.

29 CFR 1910.178(g)(2)

15.

29 CFR 1910.178(g)(11)

16.

29 CFR 50-204.5

17.

29 CFR 1910.36(b)(1)(2)(5)(6)

18.

29 CFR 1904.2(a)

19.

29 CFR 1910.151(b)

The Citation, which was issued on January 11, 1972, alleges that the violations result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR 1910.36(d)(1)&(2), 29 CFR 1910.157(d)(1)(2)&(3)(iv), 29 CFR 1910.314(d)(4)(iii)(d), 29 CFR 1910.314(d)(4)(iii)(c), 29 CFR 1910.157(a)(2)&(3), 29 CFR 1910.36(b)(2)(5)(6), 29 CFR 1910.36(2)(4)(5)(6), 29 CFR 1910.314(d)(4)(iii)(c), 29 CFR 1910.22(a), 29 CFR 1910.36(b)(5), 29 CFR 1910.36(b)(2)(4)(5)&(6), 29 CFR 1910.36(b)(2)(4)(5)&(6), 29 CFR 1910.314(d)(4)(iii)(d), 29 CFR 1910.178(g)(2), 29 CFR 1910.178(g)(11), 41 CFR 50-204.5, 29 CFR 1910.36(b)(1)(2)(5)(6), 29 CFR 1904.2(a) and 29 CFR 1910.151(b).

A Notification of Proposed Penalty was issued on January 11, 1972. Pursuant to the provisions of Section 10(a) of the Act, the penalties set forth below were proposed by the Complainant, based on the above Citation:

Item no.

Proposed penalty

 1

 $37.50

 2

  56.25

 3

No Penalty

 4

No Penalty

 5

  56.25

 6

  37.50

 7

  75.00

 8

No Penalty

 9

No Penalty

10

  75.00

11

  75.00

12

  75.00

13

No Penalty

14

No Penalty

15

No Penalty

16

  75.00

17

  56.25

18

100.00 (unadjusted)

19

  56.25

Total for all Alleged Violations

$775.00

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

Item No. 1 -- 29 CFR 1910.36(d)(1)&(2) -- Failure to identify the purpose of and to maintain #10 self closing fire door in continuous proper operating condition.

Item No. 2 -- 29 CFR 1910.157(d)(1)(2)&(3)(iv) -- Failure to inspect, maintain, and denote person performing service, by initials or signature, or portable fire extinguishers.

The violations alleged in items No. 3 to No. 19, were uncontroverted.

The standards, as promulgated by the Secretary, provide as follows:

Item No. 1. -- 29 CFR 1910.36(d)(1)&(2) -- Maintenance. (1) Every required exit, way of approach thereto, and way of travel from the exit into the street or open space, shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency. (2) Every automatic sprinkler system, fire detection and alarm system, exit lighting, fire door, and other item of equipment, where provided, shall be continuously in proper operating condition.

Item No. 2. -- 29 CFR 1910.157(d)(1)(2)&(3)(iv) -- Inspection, maintenance, and hydrostatic tests -- (i) The owner or occupant of a property in which extinguishers are located shall be responsible for such inspection, maintenance, and testing. (2) Inspection. (i) Extinguishers shall be inspected monthly, or at more frequent intervals when circumstances require, to insure they are in their designated places, to insure they have not been actuated or tampered with, and to detect any obvious physical damage, corrosion, or other imapirments. (ii) Any extinguishers showing defects shall be given a complete maintenance check. (3) Maintenance. (i) At regular intervals, not more than 1 year apart, or when specifically indicated by an inspection, extinguishers shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed. (iv) Each extinguisher shall have a durable tag securely attached to show the maintenance or recharge date and the initials or signature of the person who performs this service.

Item No. 3. -- 29 CFR 1910.314(d)(4)(iii)(d) -- Equipment grounding -- (4) Equipment connected by cord and plug. Under any of the conditions of this subparagraph, exposed noncurrent carrying metal parts of cord and plug connected equipment, which are liable to become energized, shall be grounded: (iii) In other than residential occupancies, (d) Cord and plug connected appliances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal tanks.

Item No. 4. -- 29 CFR 1910.314(d)(4)(iii)(c) -- Portable, hand held, motor operated tools, and appliances of the following types; drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws.

Item No. 5. -- 29 CFR 1910.157(a)(2)&(3) -- (a) General requirements -- (2) Location. Extinguishers shall be conspicuously located where they will be readily accessible and immediately available in the event of fire. They shall be located along normal paths of travel. (3) Marking of location. Extinguishers shall not be obstructed or obscured from view. In large rooms, and in certain locations where visual obstruction cannot be completely avoided, means shall be provided to indicate the location and intended use of extinguishers conspicuously.

Item No. 6. -- 29 CFR 1910.36(b)(2)(5)(6) -- (b) Fundamental requirements. (2) Every building or structure shall be so constructed, arranged, equipped, maintained, and operated as to avoid undue danger to the lives and safety of its occupants from fire, smoke, fumes, or resulting panic during the period of time reasonably necessary for escape from the building or structure in case of fire or other emergency. (5) Every exit shall be clearly visible or the route to reach it shall be conspicuously indicated in such a manner that every occupant of every building or structure who is physically and mentally capable will readily know the direction of escape from any point, and each point, and each path of escape, in its entirety, shall be so arranged or marked that the way to a place of safety outside is unmistakable. Any doorway or passageway not constituting an exit or way to reach an exit, but of such a character as to be subject to being mistaken for an exit, shall be so arranged or marked as to minimize its possible confusion with an exit and the resultant danger of persons endeavoring to escape from fire finding themselves trapped in a dead-end space, such as a cellar or storeroom, from which there is no other way out. (6) In every building or structure equipped for artificial illumination, adequate and reliable illumination shall be provided for all exit facilities.

Item No. 7. -- 29 CFR 1910.36(b)(2)(4)(5)(6) -- Same as Item No. 6 with the addition of (4) which is as follows: (4) In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.

Item No. 8. -- 29 CFR 1910.314(d)(4)(iii)(c) -- Equipment grounding -- (4) Equipment connected by cord and plug. Under any of the conditions of this subparagraph, exposed noncurrent carrying metal parts of cord and plug connected equipment, which are liable to become energized, shall be grounded: (iii) In other than residential occupancies, (c) Portable, hand held, motor operated tools, and appliances of the following types; drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws.

Item No. 9. -- 29 CFR 1910.22(a) -- Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

Item No. 10. -- 29 CFR 1910.36(b)(5) -- Fundamental requirements. (5) Every exit shall be clearly visible or the route to reach it shall be conspicuously indicated in such a manner that every occupant of every building or structure who is physically and mentally capable will readily know the direction of escape from any point, and each point, and each path of escape, in its entirety, shall be so arranged or marked that the way to a place of safety outside is unmistakable. Any doorway or passageway not constituting an exit or way to reach an exit, but of such a character as to be subject to being mistaken for an exist, shall be so arranged or marked as to minimize its possible confusion with an exit and the resultant danger of persons endeavoring to escape from fire finding themselves trapped in a dead-end space, such as a cellar or storeroom, from which there is no other way out.

Item No. 11. -- 29 CFR 1910.36(b)(2)(4)(5)&(6) -- Same as Item No. 7.

Item No. 12. -- 29 CFR 1910.36(b)(2)(4)(5)&(6) -- Same as Item No. 7.

Item No. 13. -- 29 CFR 1910.314(d)(4)(iii)(d) -- Same as Item No. 3.

Item No. 14. -- 29 CFR 1910.178(g)(2) -- Changing and charging storage batteries. (1) Battery charging installations shall be located in areas designated for that purpose. (2) Facilities shall be provided for flushing and neutralizing spilled electrolyte, for fire protection, for protecting charging apparatus from damage by trucks, and for adequate ventilation for dispersal of fumes from gassing batteries.

Item No. 15. -- 29 CFR 1910.178(g)(11) -- Changing and charging storage batteries. (11) Precautions shall be taken to prevent open flames, sparks, or electric arcs in battery charging areas.

Item No. 16. -- 41 CFR 50-204.5 -- Machine guarding. (a) One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, twohand tripping devices, elontronic safety devices, etc. (b) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself. (c) Point of Operation Guarding. (1) Point of operation is the area on a machine where work is actually performed upon the material being processed. (2) Where existing standards prepared by organizations listed in 50-204.2 provide for point of operation guarding such standards shall prevail. Other types of machines for which there are no specific standards, and the operation exposes an employee to injury, the point of operation shall be guarded. The guarding device shall be so designed and constructed so as to prevent the operator from having any part of his body in the danger zone during the operating cycle. (3) Special handtools for placing and removing material shall be such as to permit easy handling of material without the operator placing a hand in the danger zone. Such tools shall not be in lieu of other guarding required by this section, but can only be used to supplement protection provided. (4) The following are some of the machines which usually require point of operation guarding: Guillotine cutters, Shears, Alligator shears, Power presses, Milling machines, Power saws, Jointers, Portable power tools and Forming rolls and calendars. (d) Revolving drums, barrels and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum or container cannot revolve unless the guard enclosure is in place. (e) When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall have openings no larger than one half (1/2) inch. (f) Machines designed for a fixed location shall be securely anchored to prevent walking or moving.

Item No. 17. -- 29 CFR 1910.36(b)(1)(2)(5)(6) -- Same as Item No. 6 with the addition of (1) which s as follows: (1)(b) Fundamental requirements. (1) Every building or structure, new or old, designed for human occupancy shall be provided with exits sufficient to permit the prompt escape of occupants in case of fire or other emergency. The design of exits and other safeguards shall be such that reliance for safety to life in case of fire or other emergency will not depend solely on any single safeguard; additional safeguards shall be provided for life safety in case any single safeguard is ineffective due to some human or mechanical failure.

Item No. 18. -- 29 CFR 1904.2(a) -- Log of occupational injuries and illnesses. (a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that extablishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

Item No. 19. -- 29 CFR 1910.151(b) -- Medical services and first aid. (b) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated January 11, 1972, from Kenneth Bowman, Area Director of the Cleveland, Ohio area, that the Occupational Safety and Health Administration of the U.S. Department of Labor proposed to assess a penalty for the violations alleged in the amount of $775.00.

On or about July 21, 1972, the Petitioner moved for a summary order dismissing the Respondent's Notice of Contest on the ground that the Respondent's Answer alleged no valid defense and that there was no genuine issue as to any material fact under the Act. In answer thereto, on August 18, 1972 the Respondent requested that the Complainant's motion for summary order dismissing the Respondent's Notice of Contest not be granted that the Respondent be granted a hearing on the Answer submitted which contested only two (2) items, to wit, items No. 1 and No. 2, of Citation No. 1. After correspondence and a telephone conversation between the Judge and the Respondent's representative, a letter dated September 8, 1972, was sent to the Judge, in which the Respondent related that he contests only the following two issues: Number 1 and Number 2, of Citation Number 1. As a result of the prior correspondence and the telephone conversation, the Judge denied Complainant's motion for summary order dismissing the Respondent's Notice of Contest, however limited the issues to be tried to those raised by the pleadings, to wit, items No. 1 and No. 2, of the Citation and the proposed penalties therefore, treating items No. 3 through No. 19 of the Citation and the penalties proposed therefore as if the Respondent withdrew his Notice of Contest as to those items, inasmuch as they were not controverted by the Respondent.

Thereafter, the case was heard on October 26, 1972, in Cleveland, Ohio.

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

FINDINGS OF FACT

1. The Respondent, Apex Paper Box Company, is an Ohio corporation, maintaining its principal office and manufacturing plant at 5601 Walworth Avenue, in Cleveland, Ohio (T. 7).

2. The Respondent is involved in the preparation, manufacture and fabrication of cardboard boxes and cartons for shipment, part of which travels outside the state of Ohio (T. 7&8).

3. At all times material herein, the premises and the contents therein were owned and controlled by the Respondent (T. 8).

4. The Petitioner's Compliance Officer made a walkaround inspection of the Respondent's place of business on December 28, 1971 (T. 16 & 17).

5. At the time of the inspection of the Respondent's workplace there were approximately 71 employees employed therein (T. 18).

6. On the date of inspection, the Petitioner's Compliance Officer inspected a self-closing fire door, which was a sliding door identified as Number 10 fire door, operated on a runner-type track by a pulley system, which Number 10 fire door was blocked by material that was stacked in close proximity to it and up against it, preventing it from closing (T. 18, 19, 20, 21, 45, 46).

7. A portable fire extinguisher on the Respondent's premises had a tag that revealed that it had last been inspected in June 1970. Inspection of other portable fire extinguishers revealed that monthly inspections had not been performed and that intervals between inspections were of a longer duration than one month (T. 21, 22, 23, 24, 25, 26).

8. Items 1 and 2 of the Citation as well as all other items thereof, were determined to be of a nature, "other than serious," by the Complainant's Compliance Officer (Citation).

9. The Judge finds that the penalties proposed, for items No. 1 and No. 2 of the Citation, were inappropriate.

10. As a result of a motion before the Judge and a reply thereto by the Respondent, the proof was limited to items No. 1 and No. 2 of the Citation; and items No. 3 through No. 19 of the Citation and the penalties proposed for those items are treated as if the Notice of Contest was withdrawn for the items Numbered 3 through 19, referred to previously herein.

DISCUSSION

The Respondent's Notice of Contest referred to all items and all penalties, however, his answer referred to only two items of the entire Citation, to wit, items No. 1 and No. 2, thereof. The Complainant moved to dismiss the Respondent's Answer and its Notice of Contest on the grounds that there was no question of law or fact presented. The Respondent responded to he motion after inquiry by the Judge, by only repeating the two items, to wit, No. 1 and No. 2, which he contested.

Inasmuch as the Respondent did not put in an answer that controverted items No. 3 through 19, of the Citation, nor the penalties proposed therefore, after a motion by the Complainant to dismiss the entire Answer of the Respondent and the Respondent's Answer thereto, and after a telephone conversation with the Respondent, followed by his letter, the Judge denied the motion of the Complainant to dismiss the Notice of Contest, however, granted it to the extent that it limited the proof to the two items contested and the penalties proposed therefore. Inasmuch as both parties agreed on the other seventeen items and the penalties proposed therefore, not being contested, they are affirmed.

Insofar as the two items that were contested are concerned, the proof of record clearly reflects that the fire door was blocked at the time of inspection and also that the fire extinguishers were not properly inspected.

The Judge finds that the evidence of record establishes the existence of violations insofar as items (1) and (2) of the Citation are concerned. The Respondent for reasons of his own, neither examined the Compliance Officer, nor presented any proof in controversion thereof.

Insofar as the penalties proposed for the two contested violations found proven, the Judge finds that they are inappropriate in the instant cause. The blocked fire door is easily remedied by not placing items thereabout, and viewing the case as a totality, the Judge is of the opinion that the appropriate penalty therefore is $25.00.

Insofar as the marking and inspection of the fire extinguishers are concerned, similarly, looking at the violation as part of the case as a totality, the Judge finds that a penalty of $25.00 is sufficient in the instant cause.

Accordingly, the Judge finds that the total penalties assessed in the instant cause amount in the aggregate to $731.25.

In passing, the Judge is of the opinion that all of the elements, as they were treated insofar as percentage reductions are concerned, insofar as the Secretary's criteria is utilized, were not inappropriate. However, when viewing the case as a totality, the penalties proposed for the two items in issue deserve the modifications rendered by the Judge herein. The gravity thereof seemed to be of such a nature that the appropriate penalties for a first time violation in the amount of $25.00, in each case, was appropriate. Insofar as items (3) through (19) are concerned, inasmuch as no defense was raised thereto, or to the penalties proposed therefore, the Judge finds no justiciable controversy before him and affirms the aforementioned items No. 3 through No. 19, and the penalties proposed therefore.

Based on the foregoing considerations, the Judge makes the following

CONCLUSIONS OF LAW

1. At all the times herein mentioned, the Respondent 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 was, on the date of the respective inspection at its worksite herein concerned, and at all other times mentioned herein, an employer subject to the Safety and Health Regulations, cited herein, which were duly promulgated by the Secretary of Labor.

3. The standards alleged to be violated in the Complainant's Citation and Complaint, were in full force and effect as regards the Respondent and its workplace on the day of the inspection at the worksite herein concerned.

4. The Respondent was, on December 28, 1971, in violation of that standard found at 29 CFR 1910.36(d)(1) & (2).

5. The Respondent was, on the aforementioned day of inspection, in violation of that standard found at 29 CFR 1910.157(d)(1)(2) & (3)(iv).

6. The Respondent did not contest violations alleged as items numbered (3) through (19), of the Citation, nor the penalties proposed therefore, and accordingly was in violation for the following standards:

Item number

Standard or regulation allegedly violated

 3.

29 CFR 1910.314(d)(4)(iii)(d)

 4.

29 CFR 1910.314(d)(4)(iii)(c)

 5.

29 CFR 1910.157(a)(2) & (3)

 6.

29 CFR 1910.36(b)(2)(5)(6)

 7.

29 CFR 1910.36(b)(2)(4)(5)(6)

 8.

29 CFR 1910.314(d)(4)(iii)(c)

 9.

29 CFR 1910.22(a)

10.

29 CFR 1910.36(b)(5)

11.

29 CFR 1910.36(b)(2)(4)(5) & (6)

12.

29 CFR 1910.36(b)(2)(4)(5) & (6)

13.

29 CFR 1910.314(d)(4)(iii)(d)

14.

29 CFR 1910.178(g)(2)

15.

29 CFR 1910.178(g)(11)

16.

41 CFR 50-204.5

17.

29 CFR 1910.36(b)(1)(2)(5)(6)

18.

29 CFR 1904.2(a)

19.

29 CFR 1910.151(b)

7. The penalties proposed for the alleged violations in items No. 3 through No. 19, were unopposed.

8. The penalties assessed herein for contested items No. 1 and No. 2 of the Citation are assessed as follows: Item No. 1, $25.00, Item No. 2, $25.00.

The total amount of penalties herein assessed, amounts in the aggregate to $731.25.

In view of the foregoing; having given due deliberation to the gravity of the violations contested, the size of the Respondent's business, the presence or absence of good faith on the part of the Respondent, and its history; and good cause appearing therefore, it is ORDERED, that

1. Items No. 1 and No. 2, of the Citation, alleging violations of those standards found at 29 CFR 1910.36(d)(1)&(2) and 29 CFR 1910.157(d)(1)(2)&(3)(iv), at the Respondent's workplace, on the day of the inspection, are hereby and herewith affirmed.

2. The penalties proposed by the Secretary for items No. 1 and No. 2, are herewith vacated, and in lieu thereof, penalties of $25.00 each are assessed for items No. 1 and No. 2.

3. Items No. 3 through No. 19, of the Citation alleging violations as follows: (3) 29 CFR 1910.314(d)(4)(iii)(d), (4) 29 CFR 1910.314(d)(4)(iii)(c), (5) 29 CFR 1910.157(a)(2)&(3), (6) 29 CFR 1910.36(b)(2)(5)(6), (7) 29 CFR 1910.36(b)(2)(4)(5)(6), (8) 29 CFR 1910.314(d)(4)(iii)(c), (9) 29 CFR 1910.22(a), (10) 29 CFR 1910.36(b)(5), (11) 29 CFR 1910.36(b)(4)(5)(6), (12) 29 CFR 1910.36(b)(2)(4)(5)(6), (13) 29 CFR 1910.314(d)(4)(iii)(d), (14) 29 CFR 1910.178(g)(2), (15) 29 CFR 1910.178(g)(11), (16) 41 CFR 50-204.5, (17) 29 CFR 1910.36(b)(1)(2)(5)(6), (18) 29 CFR 1904.2(a) and (19) 29 CFR 1910.151(b), are herewith affirmed.

4. the penalties proposed for items No. 3 through No. 19, are herewith affirmed.

The total penalties assessed herein, amount in the aggregate to $731.25. SO ORDERED.