Docket No. 603

KIT MANUFACTURING COMPANY

OSHRC Docket No. 603

Occupational Safety and Health Review Commission

March 14, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with former Commissioner Burch's order directing review of a decision of Judge Garl Watkins. The judge vacated a notification of additional penalties in the amount of $2,900 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), on the basis that the Secretary of Labor (Secretary) failed to establish the presence of a hazard. We agree.

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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.

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Respondent was initially cited on January 4, 1972, for failure to comply, inter alia, with the standard published at 29 C.F.R. 1910.133(a)(1) n2 in that employees operating and working near saws and routers were not wearing [*2] eye protection. The citation required abatement by January 10, 1972. Respondent did not contest the citation. Accordingly, it became a final order of the Commission by operation of section 10(a) of the Act. On February 8, the Secretary reinspected and subsequently issued the instant notification of additional penalties for failure to abate the alleged violation of 1910.133(a)(1).

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n2 29 C.F.R. 1910.133(a)(1) provides in relevant part:

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Judge Watkins found that the Secretary could not establish a prima facie violation of 29 C.F.R. 1910.133(a)(1) by merely proving that employees were operating or working in the vicinity of saws or routers. Rather, he found that the Secretary must establish a hazard ( i.e., [*3] particles in the air) which creates a reasonable probability of injury that could be prevented by the wearing of eye protective equipment. The judge concluded that the Secretary had failed to establish such a hazard.

The Secretary argues in its brief on review that Judge Watkins erred in considering whether the record evidence established a de novo violation at the time of the reinspection. The Secretary bases his argument on the doctrine of collateral estoppel; i.e., that a final Commission order resulting from a respondent's failure to contest the initial citation conclusively determines that the conditions existing in Respondent's workplace constitute violations of the Act. We disagree. In York Metal Finishing Company, Franklin Lumber Company, [*4] 1077, CCH E.S.H.G. para. 18,206 (Rev. Com'n., 1974), we held that in a failure to abate case the Secretary's failure to prove that the alleged violative condition was in fact violative at the time of the reinspection was sufficient grounds for vacating the failure to abate citation.

In the instant case, we believe Judge Watkins has correctly found that the Secretary failed to establish the presence of a hazard at the time of the reinspection. As noted in the Judge's decision, Ken Spangler, Respondent's production manager, testified that the base on the routers prevented debris from being ejected in any direction other than down. n3 We affirm Judge Watkins' conclusion that these facts will not support a violation of the standard. Nibco, Inc., Nibco of Colorado Division,

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n3 Although the initial citation dealt with employees operating and working near saws and routers, evidence adduced by the Secretary in support of the failure to abate citation was limited to three employees using routers. In this regard, we note that Respondent established that it had instituted a mandatory eye protection program for all saw operators, which included the provision of eye protective equipment.

[*5]

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

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I must respectfully dissent from the decision of my colleagues. I would affirm the Notification of Failure to Correct Violation issued in this case.

In York Metal Finishing Co., No. 245 (April 9, 1974), this Commission held that in cases where a notification of additional penalties for failure to abate is based on an earlier citation that has become the final order of this Commission by operation of law, (section 10(a) of the Act) the Secretary of Labor will have established his prima facie case by showing: (1) The original citation is a final order; and (2) the condition or hazard found upon reinspection is identical to the one originally cited. In those cases where the citation became a final order because respondent did not file a notice of contest (section 10(a)) the York decision states that respondent may rebut the Secretary's prima facie case by a showing of actual abatement or by establishing that the original condition was, in fact, non-violative [*6] of the Act.

The issue of proof of employee exposure in failure to abate cases based on section 10(a) final orders, was discussed in Arvin Millwork Co., No. 587 (July 1, 1974). In Arvin, I restated our position that the elements of the Secretary's prima facie case, set out in York, may be rebutted. I accepted respondent's position that the affirmative defense of abatement of a hazardous condition may be established by proof of prevention of employee exposure. Commissioner Van Namee specifically did not concur in this part of my Arvin opinion. In an apparent step away from our York position, Commissioner Van Namee concluded that:

Complainant has the burden of establishing all elements of his allegation of failure to abate, including the requisite employee exposure (emphasis added) (footnote omitted).

The third case in this line of cases is Franklin Lumber Co., Inc., No. 900 (July 8, 1974). The majority relies on this case for the principle that:

. . . [I]n a failure to abate case, the Secretary's failure to prove that the alleged violative condition was in fact violative at the time of respection was sufficient grounds for vacating the failure [*7] to abate citation.

I do not read Franklin so as to place the additional burden on the Secretary to prove the condition violative. The third paragraph of the Franklin decision restates the holding of the York decision: A respondent may defend in a failure to abate proceeding on the ground that the condition originally cited was in fact non-violative of the Act at the time of the original inspection or at the reinspection. n4 In Franklin, the Secretary established: (1) That the citation was the final order of the Commission; and (2) that the condition, there an unconfined outside sawdust pile, was the same. The Secretary established his prima facie case as discussed in York. Respondent, however, successfully rebutted the Secretary's case.

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n4 The exact text of the third paragraph of the decision in Franklin Lumber Co., Inc., No. 900 (July 8, 1974), reads as follows:

A Respondent may defend in a failure to abate proceeding on the ground that the condition for which it was originally cited was in fact nonviolative of the Act at the time of the original inspection or at the reinspection. Such a defense is cognizable where the original citation has become a final order of the Commission by operation of law. We have previously stated that to hold differently would subject an employer to daily penalties for failure to abate a condition that may not actually violate the Act. York Metal Finishing Company,

[*8]

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At the hearing in Franklin, respondent established that the sawdust pile was two hundred feet from the nearest building, was not in an area where people regularly passed, was partially bordered by swampy ground and was on a weekly basis completely removed by local farmers to be used in hog parlors and chicken litters. Moreover, respondent established that because of the above facts the chances for uncontrolled fire or explosion, the hazards contemplated by the standard, were non-existent. As I read the Franklin decision, respondent has carried its burden of going forward with proof necessary to rebut the Secretary's prima facie case. Of course, respondent's defense in Franklin had to be weighed in light of the whole record which included testimony not only by respondent but also the Secretary. In my view the majority decision in this case results in a complete and unwarranted reversal of the principles first enunciated in the York decision.

The Notification of Failure to Correct issued to respondent in this case should be affirmed. The Secretary has established his prima [*9] facie case. The underlying citation is the final order of this Commission. In addition, the Secretary has established conditions identical to those contained in the original citation. Contrary to my colleagues' characterization of the Secretary's evidence, expressed in footnote 3 of the majority opinion, unrebutted testimony established that employees in respondent's Recreation Vehicle Building No. 1 were working with saws without benefit of eye protection after the abatement date. Testimony of respondent's former employee established that plumbers worked with saws and did not wear eye protection. In addition, other employees, during the time between the issuance of the original citation, January 4, 1972, and the date of reinspection, February 8, 1972, used saws and skill saws without eye protection.

The respondent has failed to carry its burden of going forward with proof to establish that the conditions underlying the original citation were non-violative at the time of the original inspection or reinspection, or that the hazardous condition has been abated. Respondent's Recreational Vehicle Production Manager testified that employees working with routers without eye protection, [*10] were in no danger of eye injury. The nature of the operation being performed by these employees caused sawdust and wood chips to be directed townward away from their eyes. Assuming the production manager's statement to be correct, there is no evidence to rebut the testimony of respondent's former employee that during the interim between the inspection and reinspection other employees used saws and skill saws without eye protection. Respondent has failed to establish that their activity was non-violative. Thus, the Secretary's prima facie case has not been rebutted.

The record does establish that respondent misunderstood the applicability of the original citation. Respondent's assertions that it thought the eye protection violations were limited to the Mobile Home Division are accepted as true and should properly be considered in assessing a penalty for the failure to abate. They do not, however, rebut the Secretary's prima facie case. The original citation by its terms describes respondent's workplace as "four buildings covering 160,000 square feet." Clearly, respondent should have realized that all items of the original citation applied to all parts of the four buildings. [*11]

Finally, the record restablishes that for the most part respondent did make available proper eye protection, although in many instances it was not used by employees. This, however, does not establish compliance with 29 CFR § 1910.133(a)(1). My interpretation of the requirements of that standard, n5 has been fully explained in Cam Industries, Inc., No. 258 (March 3, 1973) (Cleary, Commissioner, concurring in part and dissenting in part). I continue to adhere to that position.

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n5 The text of 29 CFR § 1910.133(a)(1) is set out at note 2 of the majority opinion.

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[The Judge's decision referred to herein follows]

WATKINS, JUDGE: Respondent Kit Manufacturing Company, a mobile home and recreational vehicle manufacturer of Caldwell, Idaho, defends against a charge of failure to abate a minor violation and a proposed additional penalty of $2900.00 for 29 days of continuing violation of Personal Protective Equipment standards adopted under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq.

Respondent [*12] contends there is no proof of failure to abate the violation. Other defenses are pleaded, and evidence was introduced and arguments advanced to support them.

It is unnecessary to consider additional defenses, however, since Respondent is entitled to prevail because there is a complete failure of proof.

The original Citation was issued January 4, 1972, as a result of an inspection on December 1, 1971. It contained 11 items, none alleged to be of a serious nature. Item 9 alleged violation of 29 CFR 1910.133(a)(1) and stated:

Employees working around saws and router machine not wearing eye protection. Machines emit wood chips and sawdust.

The date on which the alleged violation was required to be corrected was January 10, 1972.

Kit did not contest any of the items and accordingly the allegation of the Citation became the final order of the Commission under Section 10(a) of the Act.

The standard alleged to have been violated is 29 CFR 1910.133(a)(1) and provides:

Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available [*13] a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

Hearing was at Boise, Idaho, on August 4, 1972. There was full compliance with Rules of Procedure regarding notice to additional parties and none appeared.

Although Respondent is one corporate entity -- it is national in scope with its home office in Long Beach, California -- it operates what are in effect two separate divisions at its Caldwell, Idaho location, in three buildings devoted to manufacturing. Two of the buildings are recreational vehicle "plants" and in the third are manufactured mobile homes.

At the December 1 inspection the first building devoted to manufacturing recreational vehicles (RV 1) drew the first attention of Roy Mann, the Compliance Officer. In that building he saw "approximately" six or seven people using saws or routers and who were not wearing protective glasses or goggles. Of these, [*14] two were using routers -- the others using saws. Other employees were working on walking near enough to sawdust in the air that Mann "thought" they should be wearing eye protection. In all there were about twenty people in that building he believed to be so exposed.

Mann was indefinite about the exposure. He described no saw as to type, location, kind, size, details of operation, material sawed, length of use, amount and kind of emission or any other particular. He said two girls were using routers but did not say on what they were working or where they were located in the building. His only description of the actual hazard -- the sawdust from the saws -- was that it was "flying in the air and they had no protection, eye protection." He testified the condition was about the same in the other two buildings.

It might be noted in passing that this testimony is at variance with other evidence, and inferences to be drawn from it. This is immaterial in view of the decision reached and the basis for it. It is the only evidence of any condition which needed "abatement" or "correction."

Mann next returned to the plant on February 8. His only testimony regarding failure to [*15] abate or correct is:

Q Did you find any violations in building No. 1 of the recreational vehicle division that had not been abated?

A There were three girls without eye protection using routers. Machines.

Q Now these, you say there were three employees who you saw. What were they doing when you saw them?

A I don't know whether they are window frames, door frames or what, but they were using portable router machines.

Q And they did not have eye protection?

A They did not have eye protection.

The only other evidence which might tend to show a failure to abate or correct was the testimony of Joseph Mintz, who worked three years as a plumber in Kit's mobile home division before he terminated July 19, 1972. This is not the building where Mann said he saw three women using portable router machines on February 8.

Mintz testified that everyday -- or just about everyday -- he sawed black pipe (plastic). Many days he also sawed blocks at another saw "back in the mill." The record does not show of what material the "blocks" were made. At one point he said he spent two to three hours everyday sawing and at another that the length of time would depend on the needs of the [*16] particular job he was doing.

At times Mintz saw people using saws in the building in which he worked, as well as in RV 1, without eye protection. He also observed saws being used by workmen wearing eye protection. He saw routers being used without eye protection.

At one time Mintz was told by a foreman or lead man that eye protective equipment was being made available to the employees. He believed it to be a matter of his discretion whether he wore it. He was sure he could have "checked out" a pair of glasses at any time. He specifically did not identify this time as to the period between January 4, and February 8, 1972.

Mintz did not testify about the number, type, size, or location of the saws; except that some were in the "other building," and at one point he mentioned a skill saw and routers. He did not say what material was being sawed or how much of it, how long the saws were used, or anything about flying particles or sawdust in the air. It would actually take a little "stretching" of his testimony to draw an inference that he was talking about power saws.

Both Counsel attempted to get Mintz to relate his testimony to the period from January 4 to February 8, 1972. [*17] The best that can be said of the result is that from Mintz' testimony some inference may be drawn that from January to July 19, 1972, when he terminated, he used some type of saw in some location to cut plastic pipe just about everyday. The kind, size, type of the pipe and saw, the location except as to building and whether the saw was guarded are unknown. Most days during this period he cut some type of blocks on another saw. He frequently observed other employees using saws in the building in which he worked as well as in RV 1, again without testifying as to the kind, type, size, location or guarding of the saws. He saw routers and a skill saw used during this period. Mintz and some of the other employees were not wearing eye protective equipment at these times.

Mintz also testified he had never worn glasses or other eye protection. There were five or six men on his crew, and only the foreman or lead man wore glasses. The other men did work similar to his.

Certainly most important to this decision is the fact there is no evidence in the record, that after January 10, 1972, was there anything in the air at any part of any plant of Respondent that would endanger [*18] the eyes of one not wearing eye protective equipment. This would include sawdust, wood particles, metal particles, plastic or anything else.

There are two bits of general evidence in the record about the operation of a router -- specifically the kind in Respondent's plant. In Mann's testimony about the December 1, 1971 inspection, is the following on page 29 of the transcript:

Q And this woman was using a router without eye protection?

A Yes.

Q And what, in your mind, made you think that she needed eye protection?

Or way would someone need eye protection when they were using a router?

A For the dust, sawdust, chips that fly.

The other general evidence regarding the routers used at Respondent's plant is from Ken Spangler, Production Manager of the recreational vehicle division. On page 118 and 119 of the transcript he testified as follows:

Q Could you briefly describe what this piece of equipment is or consists of, the router, wood router?

A Well, it is a small electric tool, it has a half horsepower motor in it, it has handles on both sides that is usually run on a flat table or at, in our particular operation it is run usually at knee level and the cabinets are routed [*19] out on the floor, the holes, the doorways, drawers, drawer holes, this type of thing are routed out. The cabinets are normally laying on their back on the floor. The router is used to make openings. We overlay the cabinets with a total piece of paneling then we cut out the center portion for the doorways.

Q Now does this piece of equipment emit any kind of debris of any sort?

A Not outward or upward. It all goes down right with the paneling, from the bottom side. The router bit is on the bottom side of the guide.

Q What prevents the debris from going any direction other than down?

A Well you have a base, a router base it is called, that rides on your paneling, your router bit is below that, and then your router is, of course, enclosed at the top.

Testimony of Mann and Mintz has been considered in some detail not because any material fact is established by this testimony, but rather because it is the evidence most favorable to the Secretary's case. There is no need to weigh it against conflicting testimony. Even considering it in that light and drawing and construing all inferences most favorably to the Secretary, there has been a complete failure of proof.

At [*20] this point it might be well to direct our scrutiny to what is meant by "abatement" and "correction" and try to point up what Respondent was required to do. Since this may depend to some extent upon what was adjudicated by Respondent's default in failing to contest the Citation originally, we should also try to determine the effect of that adjudication.

The Act itself seems to use "abate" and "correct," as well as "abatement" and "correction" interchangeably and as intended to mean the same thing.

Section 9(a) refers to a reasonable time for "abatement of the violation." Section 10(b) refers to a situation where the Secretary has reason to believe that the employer has failed to "correct" the violation. Section 10(c) contains the word "abatement" four times; once regarding an unreasonable time for "abatement," once referring to a situation where "abatement" has not been completed and twice about "abatement" requirements of a citation.

The Act also appears to use the terms in their usual, ordinary sense. Both Webster and Random House Dictionaries include within the definition of "abate": "'to make less in amount, degree, force, etc.' in law 'to put a stop to'; end; quash."

In [*21] the same sources correct definitions include "make right; change from wrong to right" and also "to make conform with a standard" and "to cure, remove."

When Respondent defaulted by failing to contest the Citation it would seem the following were adjudicated:

1. In the language of Item 9 of the Citation "Employees (were) working around saws and router machine not wearing eye protection. Machines emit wood chips and sawdust."

2. There was a violation of 29 CFR 1910.133(a)(1).

3. This could have been a violation only because Respondent did not "require" protective eye and face equipment ". . . where there is a reasonable probability of injury that can be prevented by such equipment." Included within that general requirement impliedly it could have been adjudged that eye protection was not provided ". . . where machines or operations present the hazard of flying objects, . . . ." It may possibly have been decided -- but also within the first general definition -- that Respondent subjects "unprotected" persons to "a hazardous environmental condition."

The facts adjudicated by default, and the violation of the standard and of the Act, which Respondent cannot now contravert, [*22] were found to exist on December 1, 1971; not before -- not after.

What then must be proved to show failure to abate? This presents some interesting problems. This is not a building with a platform or stairway or scaffold where the absence of a handrail is the violation; nor is it a specific fixed machine where a guard required by a standard would abate the violation; nor is it a specific saw sufficiently described as to type, kind, size, guards, or absence of them, and material used, and resulting emissions, to show that the violation could be abated by a guard or by eye protective equipment.

The Secretary retains the burden of proof, and there is nothing requiring Respondent to "meet," or "go forward," with the evidence. The language of the standard is general -- and only about a condition or thing in the air that would "probably" injure eyes. It seems clear there must be proof that a condition meeting that same general standard still exists at any later time when failure to abate is claimed. Thus in this case, where it was adjudicated Respondent did not "require" the equipment on December 1, 1971, there must be proof of a continuance of the same condition requiring the equipment; [*23] in this case facts showing "a reasonable probability of injury that can be prevented." With the general requirement proved, the condition might be shown by evidence that "Machines or operations present the hazard of flying objects" or that there existed within Respondent's plant "a hazardous environmental condition." Whatever the requirement of proof, it is far beyond anything in the record of this case.

It is sufficient for this decision to hold that the Secretary is required to prove that any time he claims there has been no abatement, a condition exists "where there is a reasonable probability of injury that can be prevented by" eye protective equipment. This could be a situation "where machines or operations present the hazard of flying objects" or even conceivably evidence of "a hazardous environmental condition." There is not one word of evidence of any such condition in any plant of the Respondent after December 1, 1971.

It is also clear that this hazard, the amount, degree, severity, are matters for the decision of the trier of the fact based on evidence of what in fact was a Respondent's plant following the abatement deadline of January 10, 1972. For the purpose [*24] of discussion, let us suppose instead it is a matter on which opinion evidence may be received to assist the fact finder in reaching his conclusion; and further, that Mann's testimony regarding a router machine was in fact expert evidence that the use of such a machine created "a reasonable probability in injury" or "the hazard of flying objects."

On this basis the opinion evidence is rejected as contrary to the facts. If it is intended to be factual evidence it is too vague and indefinite to prove anything.

Based on all the evidence most favorable to his case, the Secretary has failed to meet his burden of proof. His Complaint therefore must be dismissed, his Notification of Failure to Correct the Violation and Proposed Additional Penalty must be vacated, and the proposed additional penalty vacated.

Perhaps the major difficulty here is that the entire case was tried on the theory that the violation was failure to provide eye protection equipment to employees operating or working near saws or router machines. This is not the violation with which we are concerned. Rather it is the failure to provide such equipment ". . . where there is a reasonable probability of injury [*25] that can be prevented by such equipment."

This erroneous impression is borne out by the Secretary's approach to the case in his brief. The heading on that portion going to the heart of the case is: "RESPONDENT'S FAILURE TO REQUIRE AND ASSURE THE USE OF EYE PROTECTION EQUIPMENT BY EMPLOYEES OPERATING OR WORKING NEAR SAWS OR ROUTER MACHINES CONSTITUTED A VIOLATION OF THE ABATEMENT REQUIREMENTS OF ITEM 9 OF CITATION NO. 1." Again this is not the violation at issue. It may be necessary as a practical matter to prove that employees without eye protection used saws -- and continued to use them -- in order to show dangerous atmospheric conditions and flying objects. It would also have to be proved that there were employees near enough to be injured.

The basic thrust of evidence strong enough to prove this second violation, would still have to be toward the dangerous condition itself and the "reasonable probability of an injury that can be prevented by such equipment." Instead there was evidence that three employees without glasses used routers in an undisclosed manner. There the evidence stopped -- and it was not enough.

Based upon the entire record in this case the [*26] undersigned makes the following:

FINDINGS OF FACT

The Respondent, Kit Manufacturing Company, is a corporation maintaining a place of business and employment on Airport Road near Caldwell, Idaho, consisting of a number of buildings. In two of them Respondent's recreational vehicle division manufactures its products, and in one its mobile home division manufactures its products. About 125 people are employed in each of the three buildings.

Respondent at all times pertinent to this action was engaged in the use of materials, machinery, and other goods brought directly or indirectly into the State of Idaho from points outside.

III

On December 1, 1971, a Compliance Officer of the Secretary conducted an inspection and investigation of Respondent's facilities as a result of which a Citation was issued to Kit containing 11 items constituting 11 alleged violations of the Occupational Safety and Health Act of 1970, 19 U.S.C. 651 et. seq. Item number 9 alleged the violation of 29 CFR 1910.133(a)(1) and stated: "Employees working around saws and router machine not wearing eye protection. Machines emit wood chips and sawdust." January 10, 1972, was stated as the date [*27] on which this violation was to be abated or corrected and no monetary penalty was requested for this alleged violation.

Respondent did not contest the Citation or any of its items.

On Februarty 8, 1972, the Compliance Officer, Roy Mann, conducted a reinspection of Respondent's plant, as a result of which the Secretary on February 23, 1972, issued his Notification of Failure to Correct Violation and Proposed Additional Penalty to the Respondent. In this document there was reference to a failure to abate Item 9 of the Citation issued January 4, 1972, and an additional penalty in the amount of $2900.00 was requested.

There is no evidence or reasonable inference from evidence that inside or outside Respondent's entire plant hear Caldwell, Idaho, at any time after December 1, 1971, was there a condition dangerous to the eyes of any person, consisting of flying objects, sawdust or wood or other particles, or other substances in the air; where any employee of Respondent might have been exposed thereto, and where:

A. There was a reasonable probability that injury could be prevented by eye protective equipment, or

B. There was a hazardous environmental condition, or

C. Flying [*28] objects were a hazard to any person.

The Secretary has failed to meet his burden of proving a failure by Respondent to abate the violation of the Occupational Safety and Health Act of 1970; embodied in Item 9 of the Citation issued to the Respondent on January 4, 1972. Specifically there was no failure to abate a violation of 29 CFR 1910.133(a)(1).

Based upon the foregoing, and upon all facts admitted, stipulated or proved by substantial uncontraverted credible evidence, the undersigned now makes the following:

CONCLUSIONS OF LAW

Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970 supra. The Commission has jurisdiction of the parties and the subject matter of this action.

Citation Number 1 and particularly Item 9 thereof issued to Respondent January 4, 1972, alleging violation of 29 CFR 1910.133(a)(1) was not contested and was therefore deemed the final order of the Commission by reason of Section 10(a) of the Occupational Safety and Health Act of 1970.

III

Kit Manufacturing Company did not fail to abate its violation of Item 9 of the Citation and of 29 [*29] CFR 1910.133(a)(1).

The Complaint of the Secretary should be dismissed. The Notification of Failure to Correct the Violation and Proposed Additional Penalty should be vacated, and the proposed additional penalty in the amount of $2900.00 should be vacated.

ORDER

Based upon the foregoing it is hereby ORDERED,

That the Complaint of the Secretary herein be and the same hereby is DISMISSED.

It is further ORDERED,

That the Notification of Failure to Correct Violation and Proposed Additional Penalty issued by the Secretary to the Respondent on February 23, 1972, be and the same is VACATED.

It is further ORDERED,

That the proposed additional penalty in the amount of $2900.00 be and the same hereby is VACATED.