OSHRC Docket No. 793

Occupational Safety and Health Review Commission

June 14, 1973

Before MORAN, Chairman; VAN NAMEE, Commissioner



VAN NAMEE, COMMISSIONER: On September 14, 1972, Judge Dern issued his decision affirming eight items and vacating three items in a citation for non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., hereinafter "the Act"). A civil penalty of $150 was assessed.

Thereafter, Complainant petitioned for review of the Judge's decision to vacate alleged violations of the standards prescribed by 29 C.F.R. 1910.132 (item 4 of the citation) and 29 C.F.R. 1910.219 (item 12 of the citation). Pursuant to the authority granted by section 12(j) of the Act, I directed review of the Judge's decision to affirm an alleged violation of 29 C.F.R. 1910.157(a) (item 2 of the citation).

We have reviewed the record including the decision and the briefs filed by the parties. For the reasons given hereinafter the decision of the Judge is affirmed to the extent that it is consistent herewith.

It was alleged by item 2 of the citation that Respondent violated 29 C.F.R. 1910.157(a) by not maintaining fire extinguishers in a fully charged operable condition. The standard is as follows:

1910.157 Portable Fire Extinguishers

(a) General requirements. (1) Operable condition. Portable extinguishers shall be maintained in a fully charged and operable condition, and kept in their designated places at all times when they are not being used.

The evidence of record is that Respondent, in addition to having portable extinguishers, provided twelve or more water barrels for fire fighting purposes. Complainant's compliance officer observed that the barrels contained only a few inches of water and some were without buckets. The violation was alleged as a result of the observation.

According to his brief on review, Complainant advises that item 2 should be vacated. He states that he now believes that the standard does not apply to water barrels. We agree that water barrels are not portable fire extinguishers. Accordingly, item 2 of the citation must be vacated.

We turn now to items 4 and 12 of the citation. According to item 4 Respondent allegedly violated 29 C.F.R. 1910.132 because its employees were not wearing foot (toe) protection when performing "foot hazardous tasks." The standard, in pertinent part, is as follows:

. . . personal protective equipment for . . . extremities . . . shall be provided used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment . . . encountered in a manner capable of causing injury or impairment in the function of any part of the body through . . . physical contact.

The only evidence of record upon which affirmance of item 4 could be predicated is the opinion evidence of the compliance officer. n1 It was his observation that Respondent's employees were handling heavy objects and his opinion that toe injuries were possible. On the other hand, it is uncontradicted on the record that Respondent's employees have not incurred such injuries since 1953. Accordingly, Judge Dern concluded correctly that Complainant had failed to prove his case. He failed to establish the existence of "hazards of processes or environment" in the workplace of such nature as to necessitate the use of toe protection.

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n1 The compliance officer's resume was introduced into evidence without objection. However, he was not offered as an expert witness.

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According to item 12 of the citation a violation of 29 C.F.R. 1910.219 existed because Respondent had not guarded exposed mechanical transmission apparatus. The evidence is that such apparatus was unguarded, but the only employees affected thereby are maintenance personnel while performing maintenance duties on the apparatus. According to the compliance officer Respondent should erect guard rails to thereby abate the alleged violations. n2 Were we to accept this proposition then we must necessarily conclude that maintenance operations could not be performed on the apparatus. We do not conceive the standard to be so broad. Accordingly, vacation is proper.

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n2 The compliance officer indicated that his real concern was that maintenance employees would perform their duties on the apparatus while it was being operated. He indicated that this concern could be alleviated if Respondent would abate by locking out the operation while maintenance duties were being performed.

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For the reasons given it is ORDERED that the Judge's order be, and the same is hereby, modified to vacate item 2 of the citation, and the order, as modified, be and the same is hereby affirmed.



MORAN, CHAIRMAN, concurring: I concur in the disposition of thiscase. In doing so, I also want to make it clear that the occupational safety and health standard published as 29 C.F.R. 1910.132 is vague and impossible to enforce.

Section 3(8) of the Act defines an occupational safety and health standard as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." n3

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n3 It is noted that the Secretary of Labor has recently employed a simplified version of this test in publishing a notice revoking an occupational safety and health standard. In 38 F.R. 9078, April 10, 1973, it is stated that the issue to be resolved is whether an existing standard "is reasonably necessary or appropriate in order to provide a safe and healthful place of employment." The standard there under consideration was revoked because it "is not necessary or appropriate for the safety or health of employees."

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The subject standard does not meet this test and is therefore not properly promulgated under this Act. What "practices, means, methods, operations or processes" does it require? Complainant's representatives in this case claims it means that certain employees must at certain times wear a certain type of shoes. At various times during he hearing these were referred to as "safety shoes," "appropriate safety shoes" and "proper safety shoes." At no place in the record of this case were any of these terms defined -- nor does the standard under consideration employ any of these terms.

To meet the requirements of this Act, an occupational safety and health standard must specify, as a minimum, exactly what the employer is required to do and the circumstances under which, or the time when, it is to be done. If the Secretary of Labor believes that it would serve the objectives of this Act for employees to wear shoes, he should say so plainly. The word "shoe," of course, includes a multitude of various types of foot coverings. If he wants to require a certain type of shoe, he should list such specifications.

In this case, the requirement is phrased in even broader language than the word "shoe." The terminology used is "personal protective equipment for . . . extremities." This is so broad as to be meaningless n4 and cannot be said to conform with the requirements of section 3(8) of the Act.

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n4 I also question whether shoes fall within the term "equipment."

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In addition, this standard does not tell the employer when this "equipment" is required. To answer by using the standard's own words: "whenever it is necessary by reason of hazards of processes or environment" is no answer at all. n5 To regard such language as an enforceable requirement is to open up this regulation to a thousand different interpretations. It is unlikely that any two representatives of the Secretary will interpret this terminology exactly. Not only is language which is susceptible to such varying interpretations unconstitutional, but it defeats the very purposes of the Occupational Safety and Health Act of 1970.

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n5 A parent who instructed his children to brush their teeth "when necessary" would likely find innumerable differences of opinion among parent and child on the meaning of the instruction. Standards like this may well have had their genesis with Shakespeare. See Coriolanus, Act II, Scene 3:

Bid them wash their faces. And keep their teeth clean.

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As was stated in Secretary of Labor v. The Mountain States Telephone & Telegraph Company,

A standard is developed because there is a workplace hazard which has been revealed through research or the experience resulting from many work situations. The standard is then promulgated for the purpose of telling employers what they must do to avoid that workplace hazard.

29 C.F.R. 1910.132 not only does not identify the workplace hazard it is designed to protect against but it does not tell the employer what he is supposed to do.

The requirements which this law imposes upon employers and employees must be stated clearly and precisely. This is no place for guessing games, tricky phraseology, or obfuscation.

When a standard makes an employer guess, gamble and grope to be in compliance, that standard (a) fails to serve the purposes of the Occupational Safety and Health Act, (b) does not fall within the definition of an occupational safety and health standard contained in the Act, and (c) is unconstitutionally vague.

[The Judge's decision referred to herein follows]

DERN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651, et seq. ) (referred to as the Act), to review a citation and notice of proposed penalty, issued by the Secretary of Labor (referred to as the complainant), pursuant to Section 9(a) and 10(a), respectively, of the Act.

On March 31, 1972, the complainant issued a citation alleging twelve specific violations of the standards promulgated under the Act, and a notice of proposed penalties, aggregating $300. On April 12, 1972, the petitioner issued an amended citation deleting item No. 8, as set forth in the original petition and a notice of proposed penalties, aggregating $265.00. The Grayson Lumber Company, Inc., (referred to as respondent) on April 17, 1972, filed a notice of contest, thus giving the Review Commission jurisdiction under Section 10(a).

The complainant filed a complaint on April 28, 1972, alleging as a result of an inspection of respondent's place of business in Birmingham, Alabama, on or about March 23, 1972, respondent had violated the following standards set out in 29 C.F.R. and asked that the proposed penalties, aggregating $265.00 be affirmed.

1. Open-sided, lumber-bin walk platforms were not equipped with any means of protective railing or protective device to prevent a person from falling. Standard violated: 1910.23(c). Penalty of $55.00, abatement date of April 28, 1972.

2. Extinguishers not maintained in a fully charged and operable condition. Standard violated: 1910.157(a). Proposed penalty: None. Abatement date: April 28, 1972.

3. Housekeeping in the storage, production, maintenance, launching and toilet areas was not conducted resulting in hazardous accumulations of material, parts, bottles, scrap, garbage, etc. Standard violated: 1910.22(a). Proposed penalty: None. Abatement date: April 28, 1972.

4. Mill employees and other working in foot hazardous tasks such as stacking lumber and manually handling heavy objects did not use safety shoes or other foot protection. Standard violated: 1910.132. Proposed penalty: $35.00. Abatement date: April 28, 1972.

5. The band resaw was not fully enclosed at the upper and lower wheels to prevent the escape of the saw blade. Standard violated: 1910.213(i)(1). Proposed penalty: None. Abatement date: April 28, 1972.

6. There was no means of preventing the operator's access to the infeed rolls of the resaw. Standard violated: 1910.213(i)(3). Proposed penalty: None. Abatement date: April 28, 1972.

7. Personnel operating cut-off saws and other exposed to eye injury were not wearing eye protection. Standards violated: 1910.132 and 1910.133. Proposed penalty: $45.00. Abatement date: April 28, 1972.

9. The moulder drive was being operated without a means of safeguarding personnel from the hazards of the belts and pulleys. Standards violated: 1910.219(d) and 1910.219(e). Proposed penalty: None. Abatement date: April 28, 1972.

10. Abandoned electrical machinery and equipment, located near the moulder, had not been disconnected and allowed open conductors to be accessible. Switch box covers were not installed. Standard violated: 1910.310(j)(1). Proposed penalty: $45.00. Abatement date: April 28, 1972.

11. There were temporary and potentially hazardous electrical installations at the concrete batch plant such as open and exposed conductors and switch boxes, broken electrical cord of the flexible and non-flexible type, unsecured sources of power which was being run through doorways and low, partially insulated suspended power lines were accessible to workers on the ground, platforms and vehicles. Standard violated: 1910.309. Proposed penalty: $50.00. Abatement date: April 28, 1972.

12. There was accessible and exposed mechanical power transmissions, such as belts and pulleys, shafts, gears, etc., at the mortar plant. Standard violated: 1910.219. Proposed penalty: $35.00. Abatement date: April 28, 1972.

The complainant asserted that the alleged violations came within the purview of the Act (Section 17(c)) and had a direct and immediate relationship to safety and health but were not of a serious nature.

After proper notice a hearing was held on July 27, 1972, in Birmingham, Alabama. No person or persons desired to intervene in the proceedings. Petitioner was represented by counsel and respondent by its president, Mr. J. M. Grayson, who is not an attorney.

The parties stipulated that the respondent is a corporation having a place of businesss and doing business, among other places at Birmingham, Alabama, where it is engaged in processing, wholesaling and retailing wood and wood products, and other materials used in the building trade; that the respondent employed approximately 330 employees; that the respondent's gross annual income for the past several years was in excess of $3,000,000; that it engaged in business affecting commerce and admitted the jurisdiction of the Review Commission (T. p. 7-9).

The parties further stipulated that the respondent did not contest and admitted items 5, 6 and 9 of the amended Citation No. 1 (paragraphs IV and VI of the complaint) for which no penalty had been proposed (T. p. 8).


Mr. James M. Grayson, called as a witness by the complainant testified that he had been president of respondent corporation for approximately nineteen years; that the respondent engaged in building supply business, with ready mix concrete, representing approximately 50 per cent of its sales; that respondent had five lumber storage sheds, one open face sheet rock storage shed, one large concrete floor metal building for storage of materials; one metal building for window and door storage and assembly, and a mill building where a moulder, resaw and ripsaw were in operation and a ready mix concrete plant with belt conveyor system with the entire operation embracing an area of approximately 13 acres.

Edward Y. Rew, Jr. testified that he had been employed by the Occupational Safety and Health Administration, U.S. Department of Labor, for approximately three years; that he visited respondent's plant on March 23, 1972, rather than March 13, 1972, talked with Mr. Grayson, examined records of respondent, inspected respondent's plant in company with Mr. Grayson and found open-sided lumber storage bins with platform 60 to 100 feet in length, 60 feet wide and approximately ten feet above ground level; that the platforms were not equipped with either protective railings or protective devices to prevent a person from falling; that the bins were used to store various types of wood, such as pieces utilized for rafters of buildings measuring two inches by 10 inches or 2 inches by 12 inches and 16 feet or 18 feet in length or floor joist exceeding 14 feet in length and weighing about 60 pounds. Mr. Rew, on the basis of these observations, recommended the issuance of a citation for violation of 29 C.F.R. 1910.23(c) (T. p. 17-26).

Witness Rew testified he further observed more than twelve barrels, variously located, reportedly used for fire extinguishing purposes, containing only a few inches of water and some without buckets. These observations resulted in recommendation of citation for violation of 29 C.F.R. 157(a) (T. p. 26).

Item three of the complaint involves an alleged violation of 29 C.F.R. 1910.22(a), housekeeping. The witness testified he observed accumulations of maintenance parts, soft drink bottles, scraps, and garbage in storage, production, maintenance, lunching and toilet areas (T. p. 30-31).

Witness Rew further testified he observed respondent's employee handling lumber, either rafter material or floor joist, handling motors and electrical components and cartons containing window and door units; that if the material, during the handling process, fell on an employee's foot, it would have caused a foot injury; that he observed no employee wearing safety shoes, and that Mr. Grayson advised the company did not require the wearing of such shoes (T. p. 32-36).

Mr. Rew further asserted that he observed personnel operating cut-off saws which had incomplete shielding or guarding; that there was danger to the operator's eyes and that no safety goggles or safety glasses were worn or provided for the employees (Tr. p. 37-39).

The witness next referred to his observations of "electrical machinery located in the mill or planer mill that had been removed from service," however, this equipment had been disconnected, but that the source of power which was protruding from a junction box or switch box without a cover was accessible to employees in this it was approximately five feet high and "the wires were stripped more than two inches to expose a live part." However, the witness further explained "I believe we got a bit confused when I was describing the disconnected machinery, allowing live electrical parts to be exposed so the machinery was not operable in that there was no source of power but the source of power or the hazardous electrical contact was exposed at the switch box or junction box at which it was disconnected." Thus resulted in citation for violation of 29 C.F.R. 1910.310(j)(1) (T. p. 40-42).

The witness continued his testimony that he observed open and exposed conductors of electricity, such as wire without insulation, open switch boxes, broken electrical cords, wire or power cable extending through doorways and hung partially insulated power lines accessible to employees "on the ground," all of which exposed employees to electrical shock from approximately "more than 110" volts (T. p. 42-46). This resulted in citation for violation of 29 C.F.R. 1910.309.

Witness Rew testified also regarding exposed belts, pulleys, gears on machinery in the mortar mix plant which resulted in recommendation of citation for violation of 29 C.F.R. 1910.219 (T. p. 46-52).

The witness Rew then explained how the amount of the proposed penalties was determined. He testified that on the basis of established policy he recommended a proposed penalty on six violations as follows:



Item 1



Item 4



Item 7



Item 10



Item 11



Item 12



The witness explained that the adjustments were made on the basis of giving credits to the respondent for good faith in recognition of hazardous condition, size of business and history of prior violations. The witness also asserted that respondent had no safety program.

Mr. Grayson testified that the company was inspected by two State of Alabama Safety Inspectors in 1972, prior to the inspection by Mr. Rew, that all items mentioned by these inspectors were corrected in full; that in regard to toe injuries, Item 4 of Citation, only one foot injury had occurred since 1953, due to an employee catching his foot, falling and fracturing an ankle; and that in regards to Item 10 of the Citation "there was no electricity at the switch . . . since the 'shut down' of the 'planning mill operations in 1966.'" He further explained the gears and pulleys referred to in Item 12 of the Citation were not in an operational area but were in an area where personnel worked only on such gears for maintenance or repair. Mr. Grayson also explained that he thought the company had a good safety record, that the company was self-insured; that regarding Item 1 of Citation, the company installed railings after receiving the citation, but he thought this caused more danger than not having a railing since the lumber is fork lifted to the bins and then employees place the lumber in the bins and with the railing may result in hand injuries; that in regards to Item 7, the company has installed signs that employees must wear goggles at each saw; that goggles tended to fog up in the summertime and that the wearing created a worse hazard; that he did not believe the company should be penalized, and that only minor faults were found.


It is the usual presumption that the law has been obeyed and that a person is innocent of wrong doing. The burden of proof is upon the complainant which means that if the evidence does not show that the charge is true, the finding must be that no violation occurred. However, a violation must be established by substantial evidence, not merely by conjecture or surmise.

The complainant has sustained the burden of proof necessary to establish violations alleged in Items 1, 2, 3, 7 and 11 of the Citation. The platforms at the lumber bins were at an elevation of approximately ten feet on which employees worked and a fall from this height could result in serious physical injury. The water barrels being used for fire extinguishing purposes did not contain adequate supply of water to be useful for the purpose intended. The observations of Compliance Officer Rew clearly shows that areas of complainant's plant, referred to as storage, production, maintenance, lunching and toilet, were not kept clear, orderly and in a sanitary condition. A housekeeping violation must then be found. There is a possibility of eye injuries in the operation of a cut-off saw where no vacuum equipment system is being utilized. The protection of a worker at his job is the intent of the Occupational Safety and Health Act of 1970, and regulations or standards implemented thereunder are designed to insure such purpose. The Standard 29 C.F.R. 1910.133 requires protective eye equipment "where there is a reasonable probability of injury that can be prevented by such equipment" and in the instant situation, goggles would insure that there would be no injury to the eyes. No such protection was afforded the employees.

The testimony of the Compliance Officer clearly indicates violation of Standard 1910.309 when he observed broken electrical cords being utilized and partially insulated suspended power lines where employees could come in contact with such lines.

The complainant has not sustained the burden of proof in Items 4, 10 and 12 of the Citation. With respect to Item 4, employees working without protective foot equipment, an alleged violation of 29 C.F.R. 1910.132, the Standard provides:

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head and extremities, protective clothing, respiratory devises, and protective shields and barriers, shall be provided, used and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

The key words within the Standard are ". . . necessary by reason of hazards of processes . . ." The work performed in the lumber yard has never been considered hazardous particularly where the employment involves the hand carrying of lumber. While it is possible for a piece of lumber, or for that matter whatever an employee is able to hand carry, to fall upon his feet and thereby causing injury, the experience in such operation as demonstrated by respondent's employees does not fall within the definition of hazardous employment as found in the heavy industries, metal manufacturing or foundries. Respondent rightfully contends that the lumber and building materials sold by it are not considered "heavy or dangerous materials." A violation cannot be considered on the basis of conjectures, or surmise.

It would appear from the wording of Item 10 of the Citation, that the charge should be dismissed. Item 10 begins with the words "abandoned electrical machinery and equipment." If the machinery is not in operation or in the operational process of the respondent's plant how can there be a violation? Apparently, the compliance officer was referring to switch boxes without covers so that employee might come in contact with exposed electrical wires and receive an electrical shock. This presupposed the electrical line leading to the switch box was energized. Apparently, the compliance officer assumed this to be true and there is no indication he verified this to be a fact. Mr. Grayson testified that the equipment had not been in use since 1966 and that there was no electricity going to the switch box. It is axiomatic that a violation cannot be sustained on the basis of suspicion, surmise or conjecture.

Item 12 of the Citation referred to exposed belts, pulleys, shafts and gears and the compliance officer testified to such findings. However, Mr. Grayson testified, and this was not contradicted by Mr. Rew, that the gear and pulleys were on a maintenance platform and not in an operational area, being accessible only to employees who perform maintenance and repair duties. Not being in the operational area of the plant, there is only remote possibility of an injury to respondent's employees and this is not contemplated within the Act. With regard to the proposed penalties for Items 1, 7 and 11 of the Amended Citation, the appropriateness of a penalty is the main factor for consideration. The evidence shows the respondent had no safety program for its employees, therefore, this must be weighed against the respondent. On this basis the penalties proposed for the three items mentioned appear to be reasonable and justified.


1. The respondent is now and was at all times relevant to the issues, an Alabama corporation engaged in the processing, wholesaling and the retailing of wood and wood products and other materials for use in the building trade.

2. Respondent is and at all times relevant hereto has been engaged in a business affecting commerce as provided within the Act.

3. The respondent on or about March 23, 1972, employed approximately 130 individuals and had a gross annual income in excess of $3,000,000.

4. Respondent has maintained open-sided lumber bins, walk platforms at a height of approximately ten feet, not equipped with protective railing, in violation of 29 C.F.R. 1910.23(c).

5. Respondent has maintained inadequately filled water barrels for use as fire extinguishers in violation of 29 C.F.R. 1910.157(a).

6. Respondent has maintained areas of its plant in an unclean and unsanitary condition in violation of 29 C.F.R. 1910.22(a).

7. Respondent's employees, while manually handling objects of various weights, were not engaging in hazardous processes and protective foot equipment is not necessary.

8. Items 5, 6 and 9 of Citation admitted by the respondent, have been established as the final order of the Commission and are not at issue.

9. Respondent's employees were operating cut-off saws without eye protection in violation 20 29 C.F.R. 1910.132 and 1910.133.

10. Respondent, in its mortar plant, maintains hazardous electrical installations in violation of 29 C.F.R. 1910.309.

11. Switch box covers, while not installed, were in areas of abandoned electrical machinery and the electrical lines to which the boxes were attached were not energized.

12. The belts, pulleys, shafts and gears of the mortar plant were not in an operational area and only accessible for maintenance and repairs.

13. Respondent has abated all violations except Item 4 of the Citation and complaint.


1. The respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of section 3(3) of the Occupational Safety and Health Act of 1970.

2. The respondent is, and was at all times material herein, an employer within the meaning of section 3(5) of the Act and subject to its provisions under sections 4(a) and 5(a) of the Act and Standards authorized by section 6.

3. All violations have been abated except Item 4 of the Citation.

4. Item 5, 6 and 9 of the Citation, paragraphs IV of the complaint, having been admitted are a final order of the Review Commission.

5. The complainant has sustained the burden of proof of items 1, 2, 3, 7 and 11 of the citation of the Complaint, alleging violations of 29 C.F.R. 1910.23(c); 1910.157(a); 1910.22(a); 1910.132; 1910.133; and 1910.309.

6. The complainant has not sustained the burden of proof that respondent's employees were working in a hazardous process so as to constitute a violation of 29 C.F.R. 1910.132.

7. The complainant has not sustained the burden of proof that the respondent maintains switch boxes, although uncovered, were attached to energized electrical lines so as to constitute a violation of 29 C.F.R. 1910.132.

8. The complainant has failed to sustain the burden of proof that respondent maintained exposed mechanical transmissions in an operational area, accessible to other than maintenance and repair purposes, in violation of 29 C.F.R. 1910.219.

9. The factors to be considered in assessing the penalties are: (1) history of previous violation (2) size of business (3) good faith of employer and (4) gravity of the violation.

10. The amount of proposed penalty on Items 1, 7 and 11 of $35.00, $45.00 and $50.00 respectively, is reasonable and proper.


Upon consideration of the record it is hereby ordered that:

1. Items 4, 10 and 12 of the citation of violations of 29 C.F.R. 1910.132, 1910.310(j)(1) and 1910.219, and the proposed penalties thereon of $35.00, $45.00 and $35.00 are hereby vacated.

2. The complainant's Citation of violations (Items 1, 2, 3, 7 and 11) of Sections 29 C.F.R. 1910.23(c), 1910.157(a), 1910.22(a), 1910.132, 1910.133 and 1910.309, and the respective proposed penalties aggregating $150.00 are affirmed.

3. The complainant's citation of violation, Items 5, 6 and 9, for which no penalty was proposed is affirmed.