EMPIRE ART PRODUCTS COMPANY, INC.

OSHRC Docket No. 640

Occupational Safety and Health Review Commission

October 10, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN CHAIRMAN: A decision of Review Commission Judge William E. Brennan dated March 7, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i). The decision held that respondent had violated section 17(d) of the Occupational Safety and Health Act of 1970 n1 (29 U.S.C. 666(d)) because it had failed to correct certain previously-established violations of 29 U.S.C. 654(a)(2) within the period provided for their correction. A total penalty of $3,250 was assessed.

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n1 29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act.

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The original violations (which this decision held to have been uncorrected) were established when respondent did not contest a citation under the procedures prescribed in 29 U.S.C. 659(c). Consequently, that citation and the notification of proposed penalty based thereon became a final order of the Commission pursuant to 659(a).

After reviewing the record in this case and [*2] the briefs of the parties, the Commission finds that the judge's decision with respect to the violations was correct and the same is hereby affirmed. However, we find that the penalty assessment was inappropriate and modify it was follows.

The uncontested citation was dated December 22, 1971, and asserted a violation of 654(a)(2) for failure to comply with various occupational safety and health standards in 11 relatively minor respects. The total penalty was $89.25 or an average of approximately $8.11 per infraction. The abatement date specified on the citation for each of the infractions was January 24, 1972. Respondent paid the penalty and took steps to correct the infractions by the date prescribed.

On February 10, 1972, complainant reinspected respondent's workplace and as a result thereof initiated a new enforcement action (the one under review herein) alleging that respondent had failed to abate items 1, 2, 8 and 9 in the original citation within the time therein prescribed. Complainant proposed penalties of $1,300 for each of the four allegedly unabated items for a total of $5,200.

The decision below correctly holds that the infractions specified in items [*3] 1 and 2 had not been abated on February 10, that complainant failed to establish the nonabatement of item 9 and that there had been a partial abatement (50%) of the infraction specified in item 8. The judge found that the $1,300 proposed penalty for each of the uncorrected infractions was "not inappropriate," and assessed a penalty of $1,300 for item 1, $1,300 for item 2, and $650 for item 8.

We have said that once an employer has chosen to contest a penalty proposal there is not further purpose in according any standing to the proposed penalty, for the issue of what penalty is appropriate, if any, is then within the sole jurisdiction of the Commission. Secretary of Labor v. Dreher Pickle Company, 2 OSAHRC 497 (1973).

The judge noted in his decision that pursuant to "standard instructions" from complainant its penalty proposal is based upon a "minimum" of "$100 per working day for each day a violation remained uncorrected." Neither the Act nor this Commission recognizes any such arbitrary approach to the assessment of penalties. Secretary v. Patelos Industries, Ltd., The requirements of 666(i) which apply to "all civil penalties," [*4] authorized by the Act are diametrically opposed to any pre-ordained minimum amount. This Commission long ago rejected that kind of approach to penalty-setting and clearly stated that "the achievement of a just result in each case is the standard by which our deliberations must be guided." Secretary of Labor v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972).

In this case, the original penalties for each of the items now at issue were established by complainant. The respondent did not contest them. They were as follows:

Item 1

$5.63

Item 2

20.62

Item 8

3.75

Obviously complainant believed item 2 to be a much more severe offense than item 8 since the penalty was 5 times greater. Now, without any attempt to explain whether he was right or wrong the first time, he proposes identical penalties for each of them.

We believe complainant was right the first time and wrong the second time. Logic and justice as well as good sense requires that the penalty assessed for failure to correct an admitted violation must bear a reasonable relationship to the amount of the penalty which was assessed for the existence of the violation in the first place. This [*5] case provides an excellent example of absonance: For a 13-day failure to correct a violation carrying only a $3.75 penalty, the proposed penalty is $1,300. It is also $1,300 for the same 13-day failure to correct an offense 5 times worse. The Commission cannot and will not condone such a disparate result.

The respondent in this case is a very small business (net worth $110,000 and only 17 employees). It had made good faith attempts to comply with the abatement requirements set forth in the original citation. There is an unexplained passage of 13 working days between the abatement date set in the original citation and the date that complainant conducted his reinspection. The employer has no history of prior violations under the Act, except those violations which are the foundation of this case and which complainant felt to be of such low gravity that he proposed penalties ranging from a low of $3.75 to a high of $20.62.

Considering the foregoing and weighing the criteria set forth in 666(i), we think that a just result in this particular case requires that the penalty assessed should be an amount in the range of about 13 times the original penalty for those items not corrected [*6] at all. We accept the judge's determination that the item 8 infraction was 50% abated and accordingly assess a penalty of $25.00 therefor. On the remaining items we assess penalties as follows:

Item 1

$75.00

Item 2

275.00

Accordingly, the penalties assessed by the judge are hereby vacated and a penalty in the total amount of $375.00 is hereby assessed.

CONCURBY: CLEARY; VAN NAMEE

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case. The inflexible $100 per day penalty for failure to abate non-serious violations for which the original penalty was less than $100 has been reviewed in Murphy Company, No. 445 (March 22, 1974) (Concurring opinion). I noted in that opinion that proper assessment of a civil penalty for failure to correct a violation requires consideration of section 17(j) as well as section 17(d) of the Act. There could have been no such consideration of the size of respondent's business, its good faith, past history, or the gravity of the violations when the net result is the imposition of uniform penalties for violations of inherently different nature.

In this case the total of $375.00, when considered in light of the [*7] elements of both sections 17(d) and (j) is fair.

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition and in my colleagues' statements concerning the arbitrary method Complainant employs to propose penalties in failure to abate cases. The penalty assessed by this decision is appropriate considering the factors specified in 29 U.S.C. 666(i) and particularly in view of Respondent's good faith and the relatively low level of gravity involved on the facts.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the Act), to review a Notification of Failure to Correct Violation and of Proposed Additional Penalty issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(b) of the Act.

On February 24, 1972, the Secretary through the New York City Area Director of the Occupational Safety and Health Administration, issued to Empire Art Products Company Inc., 88-50 76th Avenue, Glendale, Queens, New York (hereinafter Respondent) a Notification of Failure to Correct four of eleven items [*8] of a Non-Serious Citation previously issued to Respondent on December 22, 1971, which Citation had become the final order of the Occupational Safety and Health Review Commission (hereinafter Commission) by operation of Section 10(a) of the Act upon the failure of Respondent to contest said Citation.

In the February 24th Notification, the Secretary proposed an additional penalty of $1,300.00 on each of the four unabated items, totalling $5,200.00.

The four items of the original Citation allegedly not abated are set forth therein as follows:

Item No. 1 -- 29 C.F.R. 1910.314(d)(4)(iii)(c)

Unguarded (Ungrounded) n1 portable hand drill

Item No. 2 -- 29 C.F.R. 1910.314(d)(1)(iv)

Ungrounded electric belt (sander), n2 industrial vacuum cleaner, drill press and time clock.

Item No. 8 -- 29 C.F.R. 1910.37(q)(1) n3

Exit and exitway not marked by readily visible sign.

Item No. 9 -- 29 C.F.R. 1910.242(b)

Compressed air pressure in 6 locations exceeds 30 lbs. p.s.i. (air used for cleaning) (R.p.1).

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n1 The typographical error in Item No. 1 and para. IV(a) of the Complaint herein was corrected, without objection, at the hearing by changing the word "Unguarded "to" Ungrounded" Tr. pp. 7, 8.

n2 Item No. 2 of the Original Citation and para. IV(b) of the Complaint herein were amended at the hearing, without objection, to add the word "sander" inadvertently omitted. Tr. pp. 82, 83.

n3 Paragraph IV(h) of the Complaint herein was amended, over objection, to change the subparagraph designation therein from 1910.37(d)(1) to 1910.37(q)(1). Tr. pp. 149-153.

[*9]

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The original Citation set forth the location of the workplace involved, under the ownership, operation or control of Respondent, as 88-50 76 Avenue, Glendale, New York, and an abatement date of January 24, 1972, as to all Items (R.p.1).

Pursuant to Section 10(c) of the Act, the Respondent, through a letter from its counsel dated March 6, 1972, gave notice of its intention to contest the Notification of Failure to Correct Violation and the Proposed Additional Penalty (R.p.3).

This case was thereafter referred to the Commission for hearing pursuant to Section 10(c) of the Act, notice thereof being given to the parties of record on March 15, 1972 (R.p.5).

On March 20, 1972, the Secretary filed his Complaint herein which was followed by Respondent's answer thereto, filed on March 31, 1972 (T.pp. 7, 10).

This case was assigned to the writer on March 31, 1972, notice thereof being given to the parties of record the same date (R.p.11).

The hearing herein was held as originally scheduled in New York City on June 1, 1972.

After granting the Secretary's request for an extension of time within which [*10] to file proposed finding, conclusions and briefs, said documents were filed by the Secretary on August 21, 1972, and after granting additional time to Respondent upon its request, without objection, said documents were filed by Respondent on October 4, 1972 (R.pp. H-21, H-25).

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial evidence or record considered as a whole supports the following findings of fact and conclusions of law.

As a result of an inspection of Respondent's place of business on December 7, 1971, by Mr. Lancelott Blair, a New York State Department of Labor Inspector on loan to and acting on behalf of the Secretary, a Citation for Non-Serious Violation containing eleven items was issued to Respondent on December 22, 1971, alleging failure to comply with eleven Occupational Safety and Health Standards promulgated pursuant to Section 6 of the Act. All alleged violations were to be abated by January 24, 1972. A Notification of Proposed Penalty in the total amount of $89.25 was also issued to Respondent on December 22, [*11] 1971, based upon the Citation.

Neither this Citation nor the penalty proposed were contested by Respondent and by the operation of Section 10(a) of the Act these became the final order of the Commission (Tr. 4). The Respondent paid the original penalty. (Tr. 7).

A reinspection of Respondent's place of business was conducted on February 10, 1972, by the same Inspector who made the original inspection, as a result of which it is alleged Respondent had failed to abate four of the eleven conditions noted in the original Citation, resulting in additional proposed penalties in the total amount of $5,200.00.

The four Standards allegedly not abated upon the reinspection on February 10, 1972, as cited in the original Citation, read as follows:

Item No. 1 -- 29 C.F.R. 1910.314(d)(4)(iii)(c)

(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:

(c) Portable, hand held, motor operated tools, and appliances of the following types; drills, hedge clippers, lawn mowers, wetscrubbers, sanders and saws, and

Item [*12] No. 2 -- 29 C.F.R. 1910.314(d)(1)(iv)

(d) Equipment grounding -- (1) Fixed equipment -- general. Under any of ths conditions of this subparagraph exposed, noncurrent-carrying metal parts of fixed equipment, which are liable to become energized, shall be grounded:

(iv) Where equipment is located within reach of a person standing on the ground;

Item No. 8 -- 29 C.F.R. 1910.37(q)(1)

(q) Exit marking. (1) Exits shall be marked by a readily visible sign. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants.

Item No. 9 -- 29 C.F.R. 1910.242(b)

(b) Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.

No affected employee or authorized representative thereof expressed any desire to participate as a party herein.

The following matters were stipulated to by the Secretary and Respondent:

Service of the original Citation and the lack of any contest thereto. Proper service of the documents involved in this case and posting thereof [*13] in accordance with the Commission's rules. That Respondent is a New York corporation having its principal office located at 88-50 76th Avenue, Glendale, New York. That Respondent engages in a business which affects commerce.

No persons were injured at the time and place of the alleged violation. Respondent owns the equipment and machinery, the use of which is referred to in the Citation. Respondent is a small company compared to other companies engaged in a similar business with a net worth of $110,000.00 as of March 31, 1972. It employs an average number of 17 employees and has no history of previous violations. The "Citation" and notice of the time and place of the hearing held herein were posted at Respondent's time clock at which all employees "punch" in (Tr. pp. 4-6).

The Respondent is involved in the business of assembling decorative picture frames, clocks, and other decorating supplies, and in importing gift items from Italy. It purchases some materials from outside the State of New York (Tr. 284, 285).

This Respondent, at all times relevant herein, was engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

As to Item No. [*14] 1:

Inspector Blair, on his second inspection of Respondent's work place on February 10, 1972, found that the portable electric hand drill, located on a workbench in the assembly area of Respondent's premises, referred to in Item No. 1 of the original Citation, was still not grounded. It was connected to a short, three wire extension cord, then by an adaptor to a short two wire extension cord, then through another adaptor into the electrical wall outlet. This type of connection, with the intervening two wire cord, made grounding of this item of equipment impossible as it could be grounded only by the use of a three wire connecting cord. This drill had exposed metal parts which could become energized if its internal workings malfunctioned.

Mr. Henry Uffner, Respondent's Vice-President, readily admitted to having accompanied Mr. Blair on the initial inspection on December 7, 1972, and that he discussed each of the conditions pointed out by Mr. Blair with him. During both inspections, Mr. Blair advised Mr. Uffner what was necessary to correct the conditions observed (Tr. 79). Mr. Uffner also testified that upon receipt of the original Citation, he gave it to Respondent's [*15] assembly foreman, a Mr. Peace, ". . . and asked him to eliminate all possible violations . . ." while he was in Europe ". . . performing a business trip" (Tr. 201). Mr. Uffner further admitted that neither he nor Mr. Peace are electricians. Mr. Peace purchased 3 "adaptors" from a local hardware store, (Exs. R-2, R-7) and installed one on the electrical connection of the hand drill. This connection was ineffectual as the "pig-tail" grounding wire of the adaptor was not connected to the electrical outlet box as was necessary to properly ground the adaptor. However, even if the adaptor had been properly connected, the drill was still not properly grounded because of the intervening short two wire cord (Tr. 67-69). Mr. Uffner thought that the use of the adaptor cured the violation, considering them "appropriate" (Tr.212).

The substantial and creditable evidence of record establishes Respondent's failure to correct the violation set forth as Item No. 1 of the original Citation as of the day of the second inspection, february 10, 1972.

As to Item No. 2:

The situation in relation to the electrical belt sander, vacuum cleaner, drill press and time clock, on the date of Mr. Blair's [*16] reinspection, is essentially similar to the portable electric hand drill. Each of these items of equipment was connected to the electric source through a two wire cord, thus making the grounding of these items impossible (unless a third independent wire was connected from the frames of these items to a ground, which condition was not existent on either inspection). This equipment could have been grounded by utilizing an appropriate 3 wire cord, properly installed by a qualified electrician, to connect them to the electrical source (Tr. 76-81, 89). The electric sander's two wire cord, had a three pronged plug attached thereto, then through an adaptor into the electric source. The installation of the three pronged plug to the two wire cord was especially unfortunate as such a condition might lead someone to believe that this item of equipment was properly grounded, when in fact, it was not. The drill press, vacuum cleaner and time clock were all attached to the electric source by two wire cords. All of the items of equipment mentioned in Item No. 2 of the original Citation had exposed metal parts which could become energized by a malfunction and were located on the first [*17] floor of Respondent's workplace in or near the assembly area.

Mr. Uffner testified that he agreed with Inspector Blair's conclusion on the second inspection, February 10, 1972, that the above items were not yet grounded, ascribing the reason therefore to the "inefficiency" of Respondent's assembly foreman, Mr. Peace. After this reinspection, Mr. Uffner did call an electrician, who, according to Mr. Uffner's testimony replaced the two wire cords on the four instant items of equipment, with three wire cord (Tr. 220; Ex. R-8).

The substantial and creditable evidence of record establishes Respondent's failure to correct the violation set forth as Item No. 2 of the original Citation as of the day of the reinspection, February 10, 1972.

As to Item No. 8:

During his original inspection, Mr. Blair noted the absence of any exit sign over one exitway in the front portion of respondent's workplace, leading outside, which could be used by employees in the assembly area or by visitors, (hereinafter employees exit). Over another exitway, also in the front of Respondent's workplace, leading outside, near the office he observed an illuminated exit sign box the glass of which normally reading [*18] "Exit" had been broken so that the letters were illegible, (hereinafter office exit).

Upon his reinspection of February 10, 1972, Mr. Blair found that Respondent had installed a non-illuminated but phosphorescent or reflecting type exit sign over the employee exit but saw no change in the broken exit sign over the office exit nor any exit sign whatever at this location (Tr. 38-40; 143-145, 154-156).

Mr. Uffner testified that on the date of the reinspection, February 10, 1972, that Respondent had purchased a phosphorescent exit sign and it was installed over the broken exit light box over the office exit, because the exit glass, which he had ordered, had not been delivered (Tr. 248-253). In support of this contention Respondent introduced into evidence a photograph of this exit sign, which was taken upon his counsel's suggestion sometime after February 10th (Ex. R-10). I find that this exhibit; R-10, does not establish the condition existent at this location on February 10, 1972. Furthermore, although Mr. Uffner stated that "We have all employees witness this" (Tr. p. 252) i.e., that the exit sign was present on the date of the reinspection, Respondent called no one [*19] to substantiate Mr. Uffner's claim, which is in direct conflict with Mr. Blair's observation on February 10th.

It is therefore concluded that Respondent's claim as to the presence of the exit sign over the office exit on February 10, 1972, is not supported by reliable and creditable evidence, and that Respondent failed to abate the absence of an exit sign at this location as of February 10, 1972. It is further concluded that Respondent had corrected the absence of an exit sign over the other front (employee's) exitway on the date of reinspection by installing an exit sign observed by the inspecting official, Mr. Blair.

The Secretary argues in its proposed findings and conclusions (R.p.H.-21 at pp. 5, 8), although he does not appear to press this claim, that Respondent had not abated Item No. 8 of the original Citation because ". . . the front and rear exit doors were not illuminated so as to comply with the requisites of the Regulation, despite attempts to do so (R-38)." n4

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n4 The Secretary's counsel, and the inspecting officer made it very clear during the hearing that only the two front exitways of respondent's workplace were involved in Item No. 8 of the original Citation (Tr. 38-40, 151-156, 254-256, 260).

[*20]

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There is no merit in this contention because the Regulation requiring "suitable" illumination of exit signs 29 C.F.R. 1910.37(q)(6) was not cited as being violated in the original Citation and cannot be used as a basis for a failure to correct a violation. Respondent was originally charged with failing to have exitways "not marked by readily visible sign," a violation of the Regulation set forth at 29 C.F.R. 1910.37(q)(1), (original Citation Item No. 8). To now charge Respondent with a failure to abate the original violation because its exit signs "were not illuminated," violates Respondent's rights to adequate notice and due process.

As to Item No. 9

During the original inspection on December 7, 1971, officer Blair found Respondent, at six locations on the first floor of the instant workplace, using compressed air for cleaning purposes, which in his opinion exceeded 30 p.s.i.

Upon his reinspection on February 10, 1972, he noted that the compressed air nozzles at the 6 locations had been changed, but was unable to detect any marking on the new nozzles giving the nozzle velocity so he "tested [*21] the pressure" of said nozzles by directing the air stream therefrom on the back of his hand, which led him to the opinion, ". . . that the pressure was still above 30 pounds" (Tr. pp. 22-26, at 25).

The conflict in the evidence as to the identity of the new nozzles found at Respondent's workplace on February 10, 1972, need not be resolved on this record, as I conclude that the Secretary has not established by substantial and reliable evidence that Respondent had failed to abate the condition set forth in Item No. 9 of the original Citation in that on the day of the reinspection, "Compressed air pressure in 6 locations exceeds 30(lbs.) p.s.i. (air used for cleaning)" (R.p.1).

This conclusion is based on the type of "test" utilized during the reinspection to support the compliance officer's opinion that the compressed air in use exceeded 30 p.s.i. This "test," directing the compressed air onto the back of his hand, does not yield sufficiently objective or reliable results to support his good faith opinion, nor to support the allegation that the air pressure felt exceeded 30 p.s.i. n5 (Compare Equity Supply Co. Docket No. 180, Commission decision dated January 16, 1973).

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n5 Although Mr. Blair testified that he had checked air pressure in this manner several times previously, he had never confirmed his conclusions thereafter with an air pressure gauge of any description (Tr. 23, 24). The Secretary may wish to give consideration to supplying his compliance officers with appropriate air pressure gauges in the future.

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Mr. John Murphy, the Assistant Area Director, testified as to how the proposed additional penalty for failure to abate the four alleged violations was computed. Pursuant to standard instructions from the Secretary a minimum penalty of $100.00 per working day for each day a violation remained uncorrected was proposed for each of the four alleged violations. The abatement date of January 24, 1972, was set forth in the original Citation and the reinspection was conducted 13 working days later, on February 10, 1972. Thus each alleged failure to abate resulted in an additional proposed penalty of $1,300.00, the four alleged failures to abate totalling an additional proposed [*23] penalty of $5,200.00 (Tr. 166-169).

Respondent takes the position that the additional proposed penalty is not consistent with the Act and argues that because the original four conditions were labeled non-serious, which resulted in very low penalties (ranging from $3.75 to $22.50 per Item), the additional proposed penalty amounts to the imposition of an "ex post facto" law (Brief p. 10) and is excessively high (Tr. pp. 176-186, Resp. Brief Point III).

I find no merit in Respondent's contentions, which are based upon the erroneous assumption that there is no distinction between the original violation and the failure to abate said violation, the latter being just the 13 day continuation of the former. To give credence to Respondent's position would result in annulling Section 10(b) of the Act, and would make Section 17(d) thereof totally meaningless and superfluous.

Congress has declared, through the provisions of Sections 10(b) and 17(d) of the Act, that the failure to correct a violation, within the period set forth in a Citation after said Citation has become the final order of the Commission, is a distinct, separate and very serious violation in and of itself, being subject to [*24] additional penalties which may be as high as $1,000.00 for each day said failure to correct the violation continues.

Neither a reading of the clear provisions of the Act, logic nor any cited precedent support Respondent's contentions and they are therefore rejected.

Section 17(d) of the Act provides as follows:

(d) Any employer who fails to correct a violation for which a citation has been issued under section 9(a) within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 10 initiated by the employer in good faith and not solely for delay or avoidance of penalties), may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continues.

Section 17(j) of the Act also provides as follows:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history [*25] of previous violations.

The evidence of record reveals that this Respondent is a relatively small business enterprise having a net worth of $110,000.00 as of March 31, 1972, with an average number of 17 employees. It has no history of previous violations and no employees were injured as a result of the failure to abate the conditions herein found to have been unabated on February 10, 1972.

As to the two violations which were not abated, Items numbered 1 and 2 of the original Citation, these involved various items of electrical equipment, all not grounded, which thereby possessed the potentiality of shocking any user, including the time clock, utilized by all employees. Because of this potential danger, it is concluded that the gravity of these conditions, primarily because all employees were exposed to one, and some employees to all the others, is in the middle range.

As to the one violation which was only partially abated, Item No. 8 of the original Citation, the evidence does show that one exit sign condition was corrected, one was not. I conclude the gravity of this condition to be in the low range, primarily because of the availability of three exitways from Respondent's [*26] workplace, two of which were marked with exit signs, and the relatively small number of employees who would have to use these exits in case of need.

As to Respondent's good faith the record establishes that it had abated seven of the eleven original conditions by February 10, 1972. It further reveals that some attempt, albeit unsuccessful, was made to correct the remaining four conditions. On this evidence, Respondent must be credited with its attempts to comply with the Act.

Weighing the above factors against the nature of the violations herein found to have existed at Respondent's workplace on February 10, 1972, which Congress had declared to be a serious state of affairs through Sections 10(b) and 17(d) of the Act, it is concluded that the proposed additional penalty of $1,300.00 for each of Items numbered 1 and 2 is not inappropriate. As to Item No. 8, 50 per cent of the original violation had been corrected upon reinspection and an additional penalty as to this Item of $650.00 is appropriate.

No failure to have abated Item No. 9 of the original Citation having been established by the substantial evidence, no additional penalty may be assessed as to this Item. [*27]

At all times involved in this case, Respondent herein furnished employment to its employees at its workplace located at 88-50 76th Avenue, Glendale, Queens, New York. The Act is applicable to such employment within the meaning of Section 4(a) of the Act and the Commission has jurisdiction of the parties and the subject matter herein.

All arguments and proposals of both parties hereto have been individually considered and weighed, and those not adopted have been rejected as not supported by the substantial evidence of record considered as a whole or not supported in law.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Section 10(c) and 12(j) of the Act, it is hereby ORDERED:

1. That due to this Respondent's failure to correct or abate violations of Section 5(a)(2) of the Act, as set forth and identified as Items numbered 1, 2, and part of number 8 in the original Citation issued herein dated December 22, 1971, which Citation has become the final order of Commission by operation of Section 10(a) of the Act, the Respondent, pursuant to Section 17(d) and (j) of the Act is hereby assessed a civil penalty in the following amounts:

Item No. 1

$1,300.00

Item No. 2

$1,300.00

Item No. 8

$ 650.00

[*28] totaling $3,250.00.

2. That the proposed additional Penalty of $650.00 as to part of Item No. 8 and of $1,300.00 as to Item No. 9, for failure to abate those violations as set forth and identified in the original Citation, are hereby vacated as the Secretary has not established by the substantial evidence of record that said violations were not abated or corrected as alleged.