Docket No. 445

THE MURPHY COMPANY

OSHRC Docket No. 445

Occupational Safety and Health Review Commission

March 22, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before us on an order issued by former Commissioner Burch directing review of a decision made by Judge Robert N. Burchmore. The Judge affirmed, in part, a notification of additional penalties issued under section 10(b) (29 U.S.C. 659(b)) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). He assessed an aggregate penalty of $300 for failure to abate. The Judge also affirmed a citation for failure to post the original citation and assessed a penalty of $50. Finally, Judge Burchmore concluded that two violations n2 had been abated in fact. But as to these two he also concluded that Respondent was again in violation of the same standards on reinspection. He therefore amended the notification for additional penalties and treated it as citation alleging two new non-serious violations. He assessed a penalty of $100 for one of the "new" violations (item 11) and no penalty for the other (item 5).

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n1 The section authorizes such notification in the event Complainant believes an employer has failed to abate a violation or violations within the period or periods prescribed by a final order of the Commission.

n2 According to item 5 and 11 of the original citation, Respondent violated 29 C.F.R. 1910.141(a)(1) in that a "[t]oilet and washbasin [were] not sanitary" and 29 C.F.R. 1910.265(c)(4)(ii) in that a "[p]ondwalk [had a] broken upturned plank on the walking surface."

[*2]

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The order directing review asked for submissions on the following issues:

(1) Whether the Judge could properly construe the secretary's notification of additional penalties as a new citation, and, if so, whether that alleged violation could be considered willful or repeated within the meaning of section 17(a) [29 U.S.C. 666(a)].

(2) Whether the proposed penalty of $500 for Respondent's failure to post the original citation herein is appropriate.

We have reviewed the record and have considered the issues raised in the direction for review. We find no error in the Judge's assessment of additional penalties for failure to abate nor do we find error in his affirmance of the posting violation and assessment of a $50 penalty. Moreover, the Judge correctly concluded that Respondent had abated violations of 29 C.F.R. 141(a)(1) and 29 C.F.R. 1910.265(c)(4)(ii) (see note 2 infra ). However, he erred in amending the notification to treat these two items as new violations.

On review both parties have indicated that the Judge's action of converting the notification into a new citation raises serious [*3] questions concerning procedural due process. We agree. The question tried was whether Respondent had abated violations alleged in the original citation. Respondent was not notified either by the notification for additional penalties, the complaint or any other paper filed prior to trial that it would also have to defend on the question of new violations. Accordingly, the issue was not tried and it would be unfair to find Respondent in violation it having been shown that Respondent had abated.

For the foregoing reasons the Judge's order is reversed to the extent it amends Complainant's notification and assesses a penalty of $100 for item 11, items 5 and 11 of the notification are vacated, and the Judge's order is affirmed in all other respects. It is so ORDERED.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, COMMISSIONER: concurring in part and dissenting in part: I agree with the majority that the Judge incorrectly amended and treated the notification of additional penalties for failure to abate as a new citation as to items 5 and 11. I dissent, however, from its conclusions that respondent had abated the violative conditions alleged as item 11, and from the action taken [*4] reducing from $500 to $50 the penalty for a failure to post the original citation.

Because of the paucity of stated facts and superficial discussion in the majority decision, I believe it useful to set a fuller background for both the majority decision and this opinion.

The Direction for Review indicated that if the parties wished to file exceptions to the Judge's decision they could do so. Both the Secretary of Labor and the respondent have filed briefs covering all major issues in the case, including one raised by respondent not included in the majority decision.

The respondent operates a wood veneer plant near Florence, Oregon. The respondent's operation consists of the plant itself, a truck shop, and a headquarters building.

On October 21, 1971, the plant was inspected under the Act. By a citation issued November 24, 1971, the Secretary of Labor charged the respondent with 18 non-serious violations of the safety and health standard published in 29 CFR, Part 1910. Proposed penalties totalling $208 were assessed for the violations. The citation and notice of proposed penalties were received by the respondent on December 1, 1971. The respondent did not contest either [*5] the citation or the proposed penalties and promptly paid the penalty amount of $208. The citation became a final order of the Commission by operation of law on December 21, 1971.

On December 27, 1971, the Secretary of Labor caused a reinspection to be made of the respondent's plant.

The parties stipulated the following concerning the December 27, 1971, reinspection:

5. On December 27, 1971, the Secretary of Labor caused a reinspection to be conducted of Respondent's facility. The reinspection on that date disclosed that Respondent had failed to abate the following items cited in Citation No. 1, dated November 24, 1971, for which abatement was required on or before December 21, 1971:

a. Item No. 4 of [November 24, citation]: Substandard housekeeping with tripping hazards, contrary to 29 CFR 1910.22(a).

b. Item No. 5 of [November 24 citation]: Washbasin in service room lavatory not kept clean and orderly and in a sanitary condition, contrary to 29 CFR 1910.141(a)(1) . . . . The washbasin had been cleaned by Respondent's manager on December 20, 1971, and by the mechanic on December 23, 1971.

c. Item No. 9 of [November 24 citation]: Existence of slipping conditions [*6] in work and walking areas through water on the floor, contrary to 29 CFR 1910.265(c)(3)(iv).

d. Item No. 11 of [November 24, citation]: Pondwalk had a broken upturned plank on the walking surface, contrary to 29 CFR 1910.265(c)(4)(ii).

e. Item No. 12 of [November 24 citation:] Handrail missing on exposed open stairway, contrary to 29 CFR 1910.24(h).

For the failure to correct the five items in the citation, additional penalties were proposed under section 17(d) of the Act. The additional penalties amounted to $3,065. They were computed as follows: $100 for each day that each of the five violations remaining unabated ($3,000 plus $65 representing a forfeiture of 50 percent abatement credit previously given on November 24, 1971, with the expectation that each of the five items would be abated within the prescribed time).

The employer was also cited for a failure to post the citation of November 24, 1971. A proposed penalty of $500 was assessed for this violation.

December 23, 1971, was the last regular work day for the respondent's employees before a Christmas holiday shutdown that lasted until January 3, 1972. During the period of the shutdown the only employees [*7] working were the office and administrative staff (five employees), the truck shop mechanic and three millwrights (maintenance mechanics) at the veneer plant maintenance shop. The plant was completely closed with no employees present on December 24, 25, and 26, 1971.

1. The Washbasin. The Judge found that the initial violation for a dirty washbasin was abated. He concluded, however, that the condition of a dirty washbasin observed during reinspection constituted a different and separate violation. He assessed no penalty for this violation and characterized it as de minimis.

2. The Pondwalk. Similarly, the Judge found that respondent installed new boards to replace most of those that had been broken and warped at the time of the first inspection, but he found that the pondwalk was subject to tidal action, jarring by boats, and the use of a barge mounted crane. From this he found that the Secretary had failed to prove that the respondent did not correct the initial violation. The Judge, however, concluded that a new violation had been proved because of the condition of the pondwalk. The planks were shown to be uneven with holes larger than a man's shoe in [*8] a walkway over water. The Judge assessed a penalty of $100 for this violation.,

3. The Penalties for Item Nos. 4, 9, and 12; failure to post the earlier citation. The Secretary's proposed penalty for items 4, 9, and 12 was $620, $615, and $610, respectively. The Judge considered the proposed penalties to be harsh and disproportionate to the circumstances of the case. He found the appropriate penalty for failure to correct each of the three violations to be $100. The Judge further found that the proposed penalty of $500 for the employer's failure to post the November 24, 1971, citation was inappropriate. He assessed a penalty of $50.

III

1. The Washbasin and the Pondwalk. The question to be answered here is whether the Judge has the discretion to amend a notification of failure to correct a particular violation so as to consider and treat the notification as a citation for a new violation. I agree with the majority that he does not. As respondent argues, to do as the judge has done with respect to items 5 and 11 results in the issuance of citations by the Judge contrary to the statutory provisions of section 9(a) of the Act. This section alone contains the authority [*9] for issuance of citations for violations of the Act, and it is specific in authorizing only the Secretary of Labor to do so. It further requires that citation be in writing, describing the violation with particularity, and fixing a time for abatement. None of these requirements are met when the Judge takes it upon himself to amend and treat as a new citation the notification of failure to correct. The Secretary must formulated and defend his own theory. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1268 (D.C. Cir. 1973).

The citation concerning the washbasin is abbreviated, saying "washbasin unsanitary." Nevertheless, the issue of whether the washbasin was kept clean within the meaning of the standard involved may be said to have been litigated in light of the stipulation of the parties concerning it. The washbasin had been cleaned by the respondent's manager on December 20, 1971, and by the mechanic on December 23, 1971. The plant, including the truck shop, was closed over the Christmas holidays. The washbasin was again used on the morning of December 27, 1971, and was not cleaned after use. December 27, 1971, was also the date of reinspection. [*10] Haphazard cleaning of sanitary facilities does not comply with the requirement of the standard to keep them clean and sanitary. Under the circumstances here, however, I would characterize the violation as de minimis.

The reasoning above concerning the notification for failure to correct item No. 5, the washbasin, applies to the Judge's treatment of the notification of failure to correct item No. 11, relating to the condition of the pondwalk, as a new citation. The stipulation reveals that the condition existing at the time of the original inspection was at least partially abated. The incompleteness of the abatement cannot be considered as a new violation.

The stipulation also notes that the pondwalk is subject to tidal action, jarring by boats, and the use of a barge mounted crane. n3 It is reasonable to expect abatement of the broken condition of the pondwalk to include more than merely replacing boards as they break due to the stresses placed upon them. A fair reading of the stipulation would lead to the logical inference that replacement would have to occur on a frequent basis. Although the standard merely requires that the walking surfaces "shall be evenly [*11] floored and kept in good repair," common sense dictates that under the conditions to which this pondwalk is subject, abatement required more than what respondent here has done. I would thus conclude that the issue of failure to abate was tried and that respondent has in fact failed to abate this violation.

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n3 Photographs of the pondwalk are attached as exhibits to the stipulation, but it is unclear whether they were taken at the time of the original inspection or at the reinspection.

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1. Minimum Penalties. A more complex question is the appropriate daily penalty for failure to abate a violation. Both the Judge and the majority have glossed over this problem by failing to address themselves to either this question or the question raised by respondent of the propriety of assessment of penalties for days when respondent's business is closed. The Secretary has instructed his compliance officers that a $100 minimum daily penalty shall be assessed for failure to correct a non-serious violation for which the original [*12] penalty was less than $100. There is no statutory authority for such position. Section 17(d) of the Act states that a civil penalty of "not more than $1,000" may be assessed for each day that the condition remains unabated, and section 17(j) provides that this Commission shall assess all civil penalties, ". . . giving due consideration to the appropriateness of the penalty with respect to the size of the business. . . the gravity of the violation, the good faith of the employer, and the history of previous violations." I am cognizant of the difficulties encountered by the Secretary in attempting to establish uniformity in the assessment of penalties. I am unpersuaded, as are my colleagues, that the proposal of an inflexible minimum of $100 per day for failure to abate non-serious violations for which the original penalty assessed was less than $100 is proper in all circumstances. A penalty for failure to correct a violation is not assessed under only subsection (d) of section 17, which alone might permit such a policy of general application. Section 17(j) must also be considered in the assessment of all civil penalties. The "good faith" factor looms particularly [*13] important here, n4 not because any lack of good faith has a punitive implication in this context, but rather because it involves what is necessary or appropriate in order to encourage compliance with the duty that the employer has failed to meet. n5

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n4 Alternatively, the failure to abate could be measured principally under the "history of previous violations" factor, with the history being affected by the failure. In National Realty & Constr. Co., Inc., No. 85 (September 6, 1972) rev'd on other grounds, sub nom. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973), the Commission held that the statutory factors of section 17(j) are not ". . . necessarily to be accorded equal weight in a given case, nor that a particular factor must be given the same weight under different factual situations."

n5 The Commission has considerable discretion in the assessment of penalties, and may consider any relevant factors bearing upon the assessment. Cf. Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973). This means either that section 17(j) is not exclusive as to the relevant factors that may be considered, or that the criteria under section 17(j) are to be read broadly enough to encompass all relevant factors.

[*14]

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The second question, as noted above, is the question of what penalty shall be assessed for those days when respondent's business is closed -- such as weekends, holidays, and for maintenance shutdowns.

Section 10 of the Act, in which proceedings for contesting citations, proposed penalties, and abatement periods are set out, is the only place in the Act in which "days" are qualified as "working days." The Commission Rules of Procedure, Rule 1, gives the following definition:

(k) "Day" means a calendar day.

(l) "Working day" means all days except Saturdays, Sundays, or Federal Holidays.

The qualification of "days" in section 10 and the omission of any qualification in section 17(d) leads us to conclude that a penalty may be assessed "for each [calendar] day" during which the violation continues. n6 Further, section 17(d) indicates that a penalty is assessable thereunder for each day during which the " failure or violation continues" (emphasis added). In other words, it is clear that the penalty thereunder is for the failure to abate rather than the exposure of employee per se. In some [*15] industrial settings, mitigation of a hazard would normally be expected on weekends or other holidays, as well as any other times when operations are shut down.

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n6 There may be many situations wherein abatement of a violation can be accomplished more easily on non-working days than on working days.

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But section 17(d) must be read with section 17(j), which relates to the assessment of all civil penalties under that section and which requires that due consideration be given to respondent's size, good faith, history of previous violations, and the gravity of the violation. It also should be noted that section 17(d) is permissive in its direction for the assessment of a penalty for a failure to correct a violation. Because it is permissive and because of the factors which must be considered under section 17(j), I do not consider it mandatory to assess a uniform penalty for each day of non-abatement.

The latter considerations are critical to the disposition of this case. The final order in this case bears a [*16] date of December 21, 1971. The last regular working day before the Christmas holidays was December 23, a Wednesday. The plant was completely closed with no employees present on December 24, 25, and 26. On December 27, the date of reinspection, the only employees working were the office and administrative staff (five employees), the truck shop mechanic and three millwrights (maintenance mechanics) at the veneer plant maintenance shop. Under these circumstances, the gravity was low. The violations were inherently minor, and the probability of exposure of employees was low (non-existent for the three days at Christmas). The size of the respondent is a constant factor, and I would accept the Secretary's assessment of it. Concerning good faith, as suggested above, n7 a failure to correct a hazard ordinarily suggests some deficiency. But this should be tempered here by the fact that the employer did make an effort, albeit incomplete and unsuccessful, to repair the pondwalk by installing new boards to replace most of those that had broken or warped. In addition, the Commission has enough discretion to give some weight to the fact that the Christmas holidays may have presented unusual [*17] abatement difficulties.

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n7 As indicated earlier, a failure to abate might be considered alternatively to affect substantially the application of the good faith factor or the history of the previous violation factor. I would treat the circumstances involved under the good faith factor.

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The Secretary has directed his compliance officer to assess a penalty of $500 for failure to post a citation as required by section 9(b) of the Act. The purpose of the posting requirement is to give notice to all employees of the alleged violations and, particularly, of the time allowed for abatement so that employees may participate in the hearing, contest the abatement period if they believe it unreasonable, or both. These are two important rights given to the employees under the Act and the posting of the citation serves to notify them of these rights. Section 17(i) of the Act provides that a civil penalty of up to $1,000 shall be assessed for failure to comply with the posting provisions of the Act. This assessment [*18] is subject to the provisions of section 17(j), as is the assessment of any civil penalty.

Here, there are circumstances militating against an assessment of the maximum penalty. None of the cited violations was contested and therefore there was no hearing to which the employees could have been a party. None of the cited violations was alleged to be serious. Thirty days were allowed for abatement. making it possible that an exposed employee might want to contest the reasonableness of this period had he known of it. The citation for failure to post was determined to be a non-serious violation. The citation was immediately posted on the date of the reinspection.

Nevertheless, in view of the obvious importance of the rights of employees affected by the employer's violation, I would assess a penalty in the amount of $100.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE, OSAHRC: By citation issued November 24, 1971, the Secretary charged The Murphy Company, respondent, with eighteen nonserious violations of the safety and health regulations contained in 29 CFR 1910. The alleged violations occurred at a veneer plant operated by respondent at Florence, Oregon, [*19] which was inspected by the Secretary on October 21, 1971. Respondent paid the proposed penalties (total $208) and did not contest the citation which therefor became the final order of this Commission by operation of section 10 of the Occupational Safety and Health Act of 1970.

On December 27, 1971, the Secretary reinspected the plant and on January 5, 1972, he issued a Notification of Failure to Correct five of the items in the original citation; additional penalties in the aggregate amount of $3065 were proposed. At the same time, a further citation was issued charging that respondent had failed to post the November 24 citation in the manner required by law; a penalty of $500 was proposed for that infraction. Timely notice of contest was filed and this commission thereby acquired jurisdiction in the premises; the proceeding was assigned to the undersigned judge for hearing and determination. In lieu of oral hearing, the parties filed a joint stipulation of the facts upon which they rely in support of their respective positions. Briefs and proposed conclusions have been received.

FINDINGS AND CONCLUSIONS

Respondent contends that, contrary to section 8(a) of the Act, [*20] the reinspection was not conducted in a reasonable manner and during regular working hours. It urges that the Notification of Failure to Correct should therefor be dismissed. The agreed facts are that the date fixed for abatement of the original violations was December 21, that the plant was shut down from December 23 January 3 during which period a skeleton force of nine employees were working in the office, truck shop and veneer plant (there were no employees present over the Christmas weekend, December 24, 25 and 26) and that the reinspection was made on Monday, December 27.

Section 8 expressly authorizes inspections to be made "during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner." An inspection on a Monday which followed a Christmas weekend and at which time there were employees present in all departments cannot be held to be unreasonable simply because the plant was not in operation and the majority of the employees were off duty. While it may be true that the employees generally were not affected by conditions existing during the shutdown, the regulations pertaining to safety and health must at such [*21] times continue in full force for the benefit of those employees who were affected. The absence of some of the employees cannot reasonably excuse the employer from complying with the regulations nor can it render the employer immune from inspection of its premises. Respondent's contention is rejected.

The parties stipulated generally that the reinspection showed that respondent had failed to abate the five items specified in the notification. On the other hand, the stipulation recites particular circumstances which, according to respondent, constitute actual abatement of two items. One such item (No. 5) was described in the original citation and in the complaint as "Toilet and washbasin not sanitary," citing 29 CFR 1910.141(a)(1). The stipulation as to this item contains no mention of the toilet, which must therefor be presumed to have been found in a sanitary condition on reinspection. The stipulation also recites that the washbasin was actually cleaned on December 20 and again on December 23. It then states that the washbasin was used on December 27 without cleaning after use and a photograph taken on that date shows it to be in a soiled condition. I conclude that the original [*22] violation was in fact abated and that the condition observed on reinspection constituted a different and separate violation. Since respondent was fully advised as to the facts upon which the Secretary's complaint was founded, it is fair to amend and treat the notification of failure to correct as a citation for a new violation, and it is so considered herein. However, the proposed penalty for failure to correct ($610) is inappropriate because there was an actual abatement of the original violation. Considering the criteria prescribed in section 17 of the Act for assessing an appropriate penalty, it is noted that, as stated, the soiled condition was limited to the washbasin; also, there is no evidence to show that a true health hazard existed rather that a simple offense against neatness. Under these circumstances, I find that the violation was de minimis and had no direct relationship to safety or health within the meaning of section 9(a) of the Act; no penalty is appropriate.

The other violation as to which there is evidence of abatement was No. 11, described in the citation and complaint as "Pondwalk has broken upturned plank on the walking surface," citing 29 CFR [*23] 1910.265(c)(4)(ii). Here the stipulation recites that, prior to the abatement date, respondent installed new boards to replace most of those that had been broken and warped at the time of the initial inspection. It was also agreed that the pondwalk was subject to tidal action, jarring by boats and the use of a barge mounted crane. The regulation requires that walkways shall be evenly floored and kept in good repair. I conclude from the facts recited that the Secretary has not proven failure to correct the original citation, but that a second violation has been proven and that the notification should be, and is, amended and treated as a new citation. The $610 proposed penalty is inappropriate because the original violation was at least partially abated. Considering the criteria of section 17, it is noted here that two of respondent's employees are required to use the walkway, one of them regularly, that the planks are shown in a photograph to have been uneven with holes larger than a man's shoe and that the walkway is over water of unknown depth. I find that the appropriate penalty for this second violation is $100.

It is stipulated that there was a failure to correct [*24] the remaining three violations:

No. 4 -- Substandard housekeeping with tripping hazards. 1910.22(a)

No. 9 -- Water on floor in work and walking area. 1910.265(c)(3)(iv)

No. 12 -- Handrail missing on exposed open stairway. 1910.24(h)

Respondent contends that the proposed penalties for these offenses are excessive. The disputed penalties are $620, $615 and $610, respectively, and they were proposed in conformity with the Compliance Operations Manual of the United States Department of Labor, Occupational Safety and Health Administration. By this manual, the Secretary requires among other things that a minimum penalty of $100 per day shall be proposed for each failure to correct any non-serious violation as to which the original penalty was less than $100. He also requires that a minimum penalty of $500 be proposed for failure to post a citation.

Section 17(c) provides that any employer cited for non-serious violation may be assessed up to $1,000 and section 17(d) provides that any employer who fails timely to correct a violation for which a citation has been issued may be assesed up to $1,000 per day while the failure continues. It is clear from these provisions [*25] that the Secretary has the authority to propose the penalties that he has proposed herein. On the other hand, section 17(j) grants to this Commission the authority to assess all penalties and requires that in so doing the Commission shall give due consideration to the gravity of the violation, the size and good faith of the employer and the history of previous violations. In this case, fair consideration of the 17(j) criteria compels the conclusion that the proposed penalties are inappropriate.

As stated, the original citation listed 18 violations with proposed penalties in the aggregate amount of $208. The individual penalties, as proposed by the Secretary, ranged from a minimum of $5 to a maximum of $25. For the violations of which failure to correct is alleged, the penalties amounted to a total of $75, ranging from $10 to $20. The employer corrected 15 of the violations within the abatement period.

This record shows no history of prior violations by the employer. The gravity of two of the uncorrected violations (No. 4 and 12) is illustrated by photographs. The photographs illustrating No. 4 display a general untidiness with some clutter and a few articles resting [*26] on the floor. The tripping hazard which they demonstrate is, in my opinion, of minimum gravity. The missing railing in No. 12 relates to a stair which is shown in the photograph to have the required railing on its most exposed side. The existence of the violation cannot be questioned, but its gravity is slight. As to No. 9, the standing water was on the opposite side of a banding machine from the operator's workstation. No employees are required to enter the area except that the mechanic goes in there once a week to grease the machine, and the operator goes there for the purpose of cleaning.

The Secretary's representatives considered these violations in such light that they issued the original citation more than thirty days after the inspection, and they allowed an additional thirty days to abate. Moreover, the reinspection was not conducted until a week after the abatement date. To now assess penalties of $100 per day for each violation from the abatement date to the reinspection date, as the Secretary proposes, would be harsh and unjust out of all proportion to the circumstances of the case. I find that the appropriate penalty for failure to correct each of the [*27] three violations is $100.

I further find that, on the facts stated, the proposed penalty of $500 for failure to post is inappropriate and that a penalty of $50 should be assessed.

The circumstances of the case call for comment by this Commission on the arbitrary proposing of a minimum penalty of $100 per day for every non-serious violation in the event of a technical failure to correct by the prescribed abatement date. We have already seen that such an arbitrary proposal results in this case in vastly excessive amounts. In other cases, the proposal might well be ridiculously out of line; consider, for example, an original citation for one, non-serious housekeeping violation such as a dirty washbasin, for which a small ($10) penalty was proposed and took effect without contest. Assume further that the violation was not corrected but the inspector did not get around for two weeks after the abatement date. The Secretary's manual requires a proposed penalty of $1400. Of course that penalty is subject to review by this Commission, but the review process involves the filing of notice, pleadings, hearing or conference and stipulation of facts and this Commission should take notice [*28] that that process necessarily entails expense which would itself be excessive even though the proposed penalty be set aside in its entirety. This means that the employer who receives such a penalty notice is faced with the necessity of weighing the excessiveness of the penalty against the cost of setting it aside. If the cost of defense exceeds, or approaches, the proposed penalty, the necessary result is unfair to the employer.

Section 17(d) permits a penalty of less than $100 per day for failure to correct. For the reasons stated above, it is not fair for the Secretary by arbitrary rule to refuse, under any and all circumstances, to propose such lower penalty. Any penalty thus arbitrarily proposed should not, therefor, be given any weight.

Premises considered, it is ORDERED that the Notification of Failure to Correct be, and it is hereby amended and treated as a citation with respect to items No. 5 and 11 of the original citation, that said notification, as amended, and the citation issued January 5, be and the same are hereby set aside, that penalties be and they are hereby assessed in the amount of $100 each for items No. 4, 9, 11 and 12 and in the amount of $50 [*29] for the January 5 citation and that this proceeding be and the same is hereby discontinued.