RON M. FIEGEN, INC.  

OSHRC Docket No. 916

Occupational Safety and Health Review Commission

July 8, 1974

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order and Chairman Moran's separate order directing review of a decision rendered by Judge John J. Morris.   We have reviewed the record, and for the reasons given hereinafter we affirm the Judge's decision to the extent that it is consistent herewith.

The Propriety of the Inspection

Throughout the entirety of these proceedings Respondent has argued that Complainant's citations should be vacated because his Compliance Officer did not comply with the requirements of section 8(a) n1 of   the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act").   The essence of Respondent's argument is that the Compliance Officer did not present his credentials to either Mr. Fiegen or one of his foremen prior to the inspection. On review, Chairman Moran asked whether Respondent had been prejudiced by the Compliance Officer's failure to afford Respondent an opportunity to accompany him on the inspection as provided for by section 8(e) of the Act.

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n1 Section 8(a) provides as follows:

In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable times any factory plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

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The relevant facts regarding these issues are as follows.   On April 20, 1972, Compliance Officer LaFournaise entered a construction site located at the Physical Education Center, South Dakota State University.   The site was under the control of W.A. Klinger, Inc., a subcontractor, and LaFournaise went directly to Klinger's [*3]   main office.   LaFournaise presented his credentials to Klinger's superintendent, Anderson, and explained the purpose for his visit.   Anderson's assistance was requested for the purpose of advising employer representatives of Klinger's four subcontractors of LaFournaise's presence and purpose.   Representatives of three of the subcontractors reported to Klinger's office, but no representative of Respondent herein made an appearance.   According to Anderson, his assistant, Skuodas, notified the three reporting subcontractors and had attempted to give notice to Respondent.

Thereafter, LaFournaise and Anderson made a walk-around inspection of Klinger's worksite. During the course of the inspection and while he was on the ground LaFournaise observed Respondent's employees on the temporary roof of a building being constructed on the site and on a scaffold suspended from the roof. The building was 65 feet high.   There was no stairway leading to the roof. Access could be had by climbing   the building's girders or by riding a headache ball. n2

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n2 Accroding to Anderson a "headache ball is a weight at the end of a crane line to run the line to the ground." Unsually, it is a spherical weight attached to a crane and is employed in demolition operations.

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Judge Morris declined to vacate the citations on a basis that Complainant had not complied with section 8 of the Act. We affirm.   As the Judge pointed out, the Compliance Officer was never actually on Respondent's "worksite;" rather, he was on Klinger's worksite. The conditions which Complainant believed violative of the Act's requirements were viewed from Klinger's worksite. Moreover, the Compliance Officer was unaware of any safe means of access to Respondent's workplace. He had a "Hobson's choice"; he could either climb the girders or ride the headache ball. Under the circumstances we conclude that the Compliance Officer's actions were reasonable and his investigation was legal.   The Compliance Officer's actions did not, in the circumstances of this case, prejudice any of Respondent's rights.

Safety Nets -- 29 C.F.R. 1926.105(a) n3

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n3 The standard provides:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

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As noted above Respondent's employees were working from a scaffold and on a temporary roof. Safety nets were not rigged.   Judge Morris concluded that it was not practical to rig life lines, and he affirmed a citation alleging a serious violation of 29   C.F.R. 1926.105 for that reason.   We reverse and vacate the citation.

This case is not distinguishable from Brennan v. OSAHRC and Pearl Steel Erection Company, 488 F.2d 337, (5th Cir. 1973).   Here as there Respondent's employees were working from a scaffold and on a temporary floor.   Accordingly, Complainant has failed to sustain his burden of proof.   See Drake-Willamette Joint Ventures, BNA 1 OSHR 1181, CCH Employ. S. & H. Guide para. 15, 655 (1973).

For the reasons given, the Judge's order is modified to vacate the citation for serious violation of 29 C.F.R. 1926.105 and its corresponding proposed penalty and as modified is affirmed.   It is so ORDERED.  

CONCURBY: CLEARY (In Part); MORAN (In Part)

DISSENTBY: CLEARY (In Part); MORAN (In Part)

DISSENT:

  CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with Commissioner Van Namee [*6]   with respect to the issue of complainant's compliance with section 8 of the Act.   I would emphasize both the lack of prejudice to respondent and the reasonableness of the compliance officer's course of conduct.

I respectfully dissent on the vacation of the citation for a serious violation of the standard at 29 CFR §   1926.105(a). n4 The hazard at which that standard is directed is clearly injury or death resulting from a fall.   The difficulty in application, as the court recognized in Brennan v. O.S.H.R.C. & J. W. Bounds, 488 F.2d 337 (5th Cir. 1973), lies in the proper   interpretation of the term "impractical." I would, however, distinguish the present case from the Bounds decision.   While it is true that both cases involve the use of a scaffold and temporary floor, the employee working on the scaffold in Bounds was at least protected by a handrail.   In the present case, the employees working on the scaffold were totally unprotected from the danger of falling.   The only stated purpose for that scaffolding was for the mounting of facing on the building.   Hence, the alternatives provided by respondent here were essentially ineffective.

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n4 The standard reads:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surface where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

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Subsequent to Bounds, violations have been found under this standard where none of the devices listed was used and evidence existed that the use of safety belts was practical.   Brennan v. O.S.H.R.C. & Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974), and Brennan v. O.S.H.R.C. & Verne - Woodrow Co., No. 73-3134 (5th Cir. 1974).   Consistent with these later decisions, it is anomalous both to the purpose of the Act as expressed in section 2(a) n5 and to the canon of liberal construction to remedial statutes for the Commission to construe this standard to allow literal compliance through a means providing ineffective protection from the hazard at which the standard is aimed.   Moveover, although the practicality of the use of safety lines was disputed,   [*8]   respondent's foreman testified that their use was required by at least oral instruction by the respondent.   The testimony indicates that requirement was largely if not totally ignored.   It may be inferred, however, that safety lines have been used since the inspection.

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n5. . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . .

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  I would agree with Judge Morris that a serious violation of section 5(a)(2) of the Act has been committed because of a failure to comply with 29 CFR 1926.105(a).

MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the vacation of the citation for noncompliance with 29 C.F.R. §   1926.105, but I would hold that all three citations were invalid because they were based upon an improper inspection at which the respondent was denied its statutory rights under 29 U.S.C. § §   657(a) and (e) and complainant did not observe his own regulations. Accordingly, I believe the Judge should be reversed and all charges [*9]   against this respondent dismissed.

29 U.S.C. §   658(a) authorizes complainant to issue citations only "upon inspection or investigation." There is no authority for the issuance of citations outside of this section.   The Act makes it clear that complainant cannot issue a valid citation under section 658(a) unless it is based upon an inspection or investigation conducted pursuant to section 657.   Section 657(a) authorizes him to enter and inspect a worksite in order to carry out the purposes of the Act only "upon presenting appropriate credentials to the owner, operator, or agent in charge." That section reads in full:

In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized,

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in   a reasonable manner, any such place of employment [*10]   and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee. [emphasis supplied]

Without such presentation of credentials, the complainant's representative has no authorization to conduct an inspection of the worksite. Secretary v. Alsea Lumber Co.,   Complainant's authority under this Act is limited by the clear language of the law.   He has no inherent authority to conduct inspections willy-nilly.   If Congress has so intended, it would not have included the provisions of section 657(a) which have been underscored above.

Section 657(a) is unambiguous.   Its language is clear and straightforward.   The condition precedent to the authorization to enter, inspect and investigate is "upon presenting appropriate credentials."

When interpreting the meaning of a statute it is improper, absent some ambiguity, to go beyond the plain meaning of the words to determine the legislative intent.   Ex Parte Collett, 337 U.S. 55, 61(1949); Jopek v. New York Central R. Co., 353 F.2d 778, 788 (3rd Cir. 1965). But even   [*11]   if we were to assume, arguendo, that the wording of section 657(a) is ambiguous, an examination of the relevant legislative history would not alter the conclusion indicated above.

Numerous bills containing many strongly conflicting viewpoints on the subject of reducing workplace hazards were proposed in the 91st Congress before S.2193 was finally enacted as the Occupational Safety and Health Act of 1970.   Their proponents, however, were unanimous in including a requirement that agents of the Secretary of Labor must present their credentials in order to gain authority to enter, inspect,   and investigate an employer's workplace. The same mandatory language that is today section 657(a) was included in all of the various bills which were proposed.   Legislative History of the Occupational Safety and Health Act of 1970, 529, 599, 629, 659, 679, 721, 1006, U.S. Government Printing Office, Washington, D.C. (June 1971).

The July 9, 1970, report of the House Committee on Education and Labor on H.R. 16785 stated that,

[I]t is necessary for federal and state personnel to have the right of entry. . . .   Thus, Section 9(a) authorized the Secretary, upon presentation of credentials.   [*12]     . . . to enter at reasonable times. . . . and inspect and investigate within reasonable limits.   Id., at 852. [emphasis supplied]

During the House debate on substituting H.R. 19200 for H.R. 16785, Congressman Steiger of Wisconsin, who was author of the earlier and coauthor of the latter House bill, responded to the following question on the authority of the Secretary of Labor to inspect and cite for violations:

Question.   As I interpret section 9(a) of H.R. 19200, until a federal inspector has presented his credentials, he lacks the authority to enter and inspect a business or workplace. . .   Is that correct? [emphasis supplied]

Answer.   It is. . . .   [U]ntil the inspector has presented his credentials, he is not empowered to enter a business or workplace. I might add that this is a feature common to both H.R. 19200 and H.R. 16785.   Id., at 1076.

The foregoing affirms beyond any doubt that Congress intended that the Secretary of Labor's inspection authority would be conditioned upon his compliance with section 657(a).

Furthermore, with the adoption of 29 C.F.R. §   1903.7(a) the Secretary of Labor imposed the same mandatory requirements upon his representatives by [*13]   regulation. That regulation provides, "At the   beginning of an inspection, [the] Compliance Safety and Health Officers shall present their credentials to the owner, operator or agent in charge. . ." [emphasis supplied].   In another part of the regulations which have been issued by the Secretary in implementation of this Act, the Secretary defines "shall" as meaning "mandatory." See 29 C.F.R. §   1926.32(p).

It is an oft-stated general rule that when an administrative agency has been granted the power by Congress to promulgate procedural regulations for the enforcement of a Federal statute, it must adhere scrupulously to those regulations. United States v. Wilbur, 427 F.2d 947 (9th Cir. 1970), cert. denied, 400 U.S. 945 (1970). To prevent indiscriminate enforcement of this Act, the violation of valid administrative regulations must be regarded as a violation of the statute itself.   Jeffries v. Olesen, 121 F. Supp. 463 (S.D. Cal. 1954). The law of these cases clearly mandates that any citation issued in violation of valid statutory or administrative requirements is null and void.

I am also constrained to point out the inconsistency of the complainant's position [*14]   which the Commission is today adopting.   On the other hand, he asks that his own failure to comply with a regulation promulgated under this Act be disregarded.   On the other hand he asks that a penalty be assessed against respondent for its failure to comply with other sections of those same regulations. I decline to adopt a position so patently inconsistent.

I conclude that since the inspector in this case did not comply with 29 U.S.C. §   657(a) or 29 C.F.R. §   1903.7(6) n6, he had no authority to either inspect or   cite this respondent.

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n6 It is immaterial in this case that the complainant's representative presented his credentials to Klinger, Inc., for this citation was not issued for Klinger's violations nor is there any evidence that Klinger was respondent's agent.   Klinger did not qualify as either "owner, operator, or agent in charge" of respondent's business.

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A similar conclusion is mandated by the requirements of 29 U.S.C. §   657(e).   Section 657(e) requires that "a representative of the employer [*15]   and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace. . ." There is no doubt in my mind that Congress intended section 657(e) to be construed as mandatory.   My reasons for so believing have been heretofore set forth in detail.   Secretary v. Chicago Bridge and Iron Co., Secretary v. Lipsky and Rosenthal, Inc.,

Although there are many valid reasons why Congress inserted sections 657(a) and (e) into the Act, from the practical point of view it would seem impossible to identify the firm by whom persons exposed to workplace hazards were employed -- or even if such persons were employees of anyone -- unless these two provisions of law are observed.   The evidence adduced by complainant that this respondent's employees were exposed to the hazards alleged in this citation was strictly hearsay -- as well it might be considering the way the inspection was conducted.   That proof of employee exposure is an essential element of any violation of this Act, see Secretary v.   [*16]     City Wide Tuckpointing Service Co.,

  The record in this case contains no evidence that complainant's representative attempted to contact respondent's offices which were located some 80 feet south of Klinger's, and put very little effort, if any, into contacting respondent's employees on the site to see if a representative of respondent or its employees could be found.   Without inquiring, the inspector of course would have no way of knowing if respondent had people at the office or if it were true, as he testified, that the employees were unavailable since they were working on top of the roof of the physical education building.   There was other evidence that at 2:30 in the afternoon, just as the inspection was beginning, all respondent's employees who had been on the roof came down to the ground for their regular afternoon coffee break.   The respondent's employees were easily available at that time.   Furthermore there was no "Hobson's choice" for the inspector here in reaching the roof where respondent had employees at work.   Surely complainant cannot discharge his responsibilities under this law if he does not provide his inspectors [*17]   with the means to reach all places where people are at work.

The record of this case is replete with sloppy investigatory work, failure to observe statutory and regulatory requirements for an inspection, and the circumvention of rights which the law has specifically granted to the employer and the employees of each firm cited under the Act.   Citations so founded should be quickly vacated. I would so hold.

[The Judge's decision referred to herein follows]

MORRIS, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter   called the Act) contesting certain Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.   The Citations allege that as a result of the inspection of a workplace under the ownership, operation, or control of Respondent, located at the construction site of the Physical Education Center of South Dakota State University at Brookings, South Dakota, the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary [*18]   of Labor pursuant to Section 6 thereof.

The Citations hereinafter enumerated were all issued on May 3, 1972, and they allege that the violations result from failure of Respondent to comply with certain standards promulgated by the Secretary by publication in the Federal Register and subsequently codified in the Code of Federal Regulations as hereinafter specifically set forth.   The inspection for which the citations were issued took place on April 26, 1972.

I.

The description of Citation No. 1 contained in the citation for serious violation states as follows:

Safety nets or equivalent protective equipment was not provided for employees working on outrigger scaffold and unguarded roof in excess of 25 feet above ground level on Physical Education Center building.

The Citation alleges a violation of sub paragaph "E" 29 CFR 1926.105 (formerly 29 CFR 1518.105 as adopted by 29 CFR 1910.12).

The standard as promulgated by the Secretary provides as follows:

  §   1926.105 Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors,   [*19]   safety lines, or safety belts are impractical.

(b) Where safety net protection is required by this part, operations shall not be undertaken until the net is in place and has been tested.

(c)(1) Nets shall extend 8 feet beyond the edge of the work surface where employees are exposed and shall be installed as close under the work surface as practical but in no case more than 25 feet below such work surface. Nets shall be hung with sufficient clearance to prevent user's contact with the surfaces or structures below.   Such clearances shall be determined by impact load testing.

(2) It is intended that only one level of nets be required for bridge construction.

[(c) Amended at 37 F.R. 3512, Feb. 17, 1972.]

(d) The mesh size of nets shall not exceed 6 inches by 6 inches.   All new nets shall meet accepted performance standards of 17,500 foot-pounds minimum impact resistance as determined and certified by the manufacturers, and shall bear a label of proof test.   Edge ropes shall provide a minimum breaking strength of 5,000 pounds.

[(d) Amended at 37 F.R. 3512, Feb. 17, 1972.]

(e) Forged steel safety hooks or shackles shall be used to fasten the net to its supports.

(f) Connections [*20]   between net panels shall develop the full strength of the net.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified of a proposed penalty by letter dated May 3, 1972, from Vernon A. Strahm, Area Director of the Billings, Montana area, Occupational Safety and Health Administration, U.S. Department of Labor; said Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $500.00.

II.

The description of the alleged violation contained in Citation No. 2 for serious violation states as follows:

  On Thursday, April 20, 1972, in Brookings, South Dakota, an employee was observed being lowered to the ground by a crane hook from roof level approximately 60 feet above ground level.   East side -- Physical Education Center.

The Citation alleges a violation of sub paragraph "N" 29 CFR 1910.180(h).

The standard as promulgated by the Secretary provides as follows:

29 CFR 1910.180 Crawler locomotive and truck cranes.

(h) Handling the load.

(v) No hoisting, lowering, swinging, or traveling shall be done while anyone is on the load or hook.

Pursuant to the enforcement procedure as set [*21]   forth in Section 10(a) of the Act, the Respondent was notified in the manner more specifically set forth in paragraph I hereof; the Area Director proposed to assess a penalty for the violation alleged in this paragraph in the amount of $500.00.

III.

The description of the alleged violation contained in Citation No. 3, Item 1, states as follows:

(1) U-bolts used to fasten wire rope did not conform to the requirements for the number and spacing of clips with regard to the size of the wire rope -- boom truck.

The Citation alleges that the standard violated was sub paragraph "H" 29 CFR 1926.251(c), (formerly 29 CFR 1518.251(c), as adopted by 29 CFR 1910.12).

The standard as promulgated by the Secretary provides as follows:

29 CFR 1926.251 Rigging equipment for material handling.

(c) Wire rope.

(5) When U-bolt wire rope clips are used to form eyes, Table H-20 shall be used to determine the number and spacing of clips.

  Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified as more specifically set forth in paragraph I hereof; the Area Director proposed to assess "no penalty" for the violation alleged in this paragraph.   [*22]  

IV.

The description of the alleged violation contained in Citation No. 3, Item 2, states as follows:

(1) Annual hoisting inspection records were not available for link belt truck crane -- located eastside of building.

(2) Crushed and rusted wire rope in use on boom truck -- east-side of building.

The Citation alleges that the standard violated was sub paragraph "N", 29 CFR 1926.550(a).

The standard as promulgated by the Secretary provides as follows:

29 CFR 1926.550 Cranes and derricks.

(a) General requirements (1) The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks.   Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded.   Attachments used with cranes shall not exceed the capacity, rating, or scope recommended by the manufacturer.

(6) A thorough, annual inspection of the hoisting machinery shall be made by a competent person, or by a government or private agency recognized by the U.S.   [*23]   Department of Labor.   The employer shall maintain a record of the dates and results of inspections for each hoistering machine and piece of equipment.

(7) Wire rope shall be taken out of service when any of the following conditions exist:

(ii) Wear of one-third the original diameter of outside individual wires.   Kinking, crushing, bird caging, or any other damage resulting in distortion of the rope structure.

  Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified as more specifically set forth in paragraph I hereof; the Area Director proposed to assess a penalty for the violations alleged in this paragraph in the amount of $25.00.

After Respondent contested this enforcement act, and a Complaint and Answer had been filed by the parties, the case came on for hearing at Sioux Falls, South Dakota, October 17, 1972.   No additional parties desired to intervene in the proceedings.

STATEMENT OF JURISDICTION

Respondent Ron M. Fiegen, Inc., hereinafter at times referred to as Fiegen, in its answer admitted the allegations in paragraph 3 of the Complaint, to the effect that Respondent is an employer within the meaning of the Act.   [*24]   The transcript further reflects that Respondent is incorporated under the laws of South Dakota as an iron and structural steel erector and operates within that State; merchandise and wares come to Respondent through the interstate commerce system, and the Respondent uses the facilities of interstate commerce (Tr. 5-6, Complaint; Respondent's Answer).

It accordingly follows that the undersigned Judge has jurisdiction to hear and determine this case upon assignment from the Occupational Safety and Health Review Commission.

THE EVIDENCE

In view of the many issues urged by Respondent, a full statement on the relevant evidence is deemed necessary:

  On April 20, 1972, Gordon F. LaFournaise, an employee of the Occupational Safety and Health Administration made a physical inspection of the premises (Tr. 9), which was a construction site at the Physical Education Center of South Dakota State University (Tr. 19).

Compliance Officer LaFournaise entered the jobsite and went to the main office where he presented his identification papers to job superintendent Anderson (Tr. 20, 133).   The Compliance Officer stated his purpose; he further requested that the various subcontractors [*25]   be contacted for an opening conference (Tr. 20).   No representative of Respondent was present at the opening conference (Tr. 23).   (A hearsay statement was made by a person sent by the superintendent to the effect that he could not contact any of Respondent's employees because they were on the roof, Tr. 25.)

Before the inspection the Compliance Officer did not contact Ron Fiegen, or his foremen, or any of Respondent's men (Tr. 91, 109).   In his walk around tour the Compliance Officer could not see any ladders going to the top of the buildings and did not attempt to get up there in order to find out if there were any foremen present.   There was no stairway available to get to the top of the building (Tr. 152).   He talked to one employee of Respondent who was operating a crane (Tr. 92).

Witness Anderson testified that he was the superintendent for W. A. Klinger (general contractor), and the Compliance Officer reported to him when he came on the construction site (Tr. 133).   The Respondent employed iron workers (Tr. 139); Anderson accompanied the Compliance Officer during the inspection (Tr. 141).   The Compliance Officer had not asked Anderson to sign any papers   signed by [*26]   Anderson (Tr. 145-146).   There were probably not more than four subcontractors on the job (Tr. 146).   There is a coffee break about 2:30 p.m. (Tr. 147).   The Compliance Officer might possibly have found the Respondent's employees on the ground at about 2:30 p.m., but not necessarily (Tr. 148).   The Fiegen construction shack was some 80 feet south of the main construction shack and possibly some of Fiegen's employees could have been found there (Tr. 149).   During the inspection, the Compliance Officer and the Superintendent did not walk to the Fiegen shack (Tr. 148-149).

Witness Anderson had been on the jobsite for about 20 months (Tr. 163).   Respondent had been on the jobsite five or six months before April, 1972 (Tr. 163-164).   In April, 1972, nine or ten of the Respondent's employees were on the job (Tr. 164).   The Respondent had the contract to put in the structural steel, the joists, etc.   When the metal roof was done, then the air handling units, ventilators and related equipment would be put on by the carpenters, electricians and plumbers (Tr. 164).   On April 20, the roof sheeting was almost finished (Tr. 165-166).

Superintendent Anderson, from Exhibit 2, recognized four individuals [*27]   as employees of Fiegen (Tr. 136), as the people on the roof (Tr. 140).   Ironworkers were allowed on the roof on the building, and only one employer on the job employed ironworkers (Tr. 138).

It was 65 feet from the roof of the building to ground level (Tr. 142, 153).   On April 20, 1972 there was no practical way to get to the top of the roof (Tr. 151).   It is common practice to ride a medicine ball to the top of the roof (Tr. 166).   Steelworkers normally climb girders (Tr. 167); to reach the roof; workmen could climb a girder or crossover from the concourse   (adjoining) roof (Tr. 166-167) otherwise there was no way to reach the roof (Tr. 15.).   The electricians and plumbers do not go up to the top of the roof until the roof is completed (Tr. 170).

During his inspection the Compliance Officer observed a man being lowered from the roof on the hook of a crane (Tr. 44).   The man being lowered on the crane hook was some 12 feet above the ground (Tr. 109, 120).

On the date of the inspection there were only two U-bolt wire rope clips on the boom truck; the standard calls for three (Tr. 46); involved is the slipping of a wire rope or possibly the cable cutting loose (Tr. 47).   [*28]   U-bolt clips are a method of fastening wire rope which form an eye (Tr. 48); this could involve injury of crushing, cable backlash, slapping an individual or material falling (Tr. 49).

An additional citation was given because there were no records of an annual inspection of the truck mounted link belt crane (Tr. 49).   In connection with the records, the Compliance Officer talked to the crane operator and was advised that the records were in the possession of Fiegen who was not on the jobsite at that time (Tr. 50, 93-94).   The name on the crane was "Ron Fiegen, Erector" (Tr. 164).

Complainant's Exhibit No. 1 is a photograph taken on the day of the inspection showing a winch truck and drum and rope (Tr. 29).   The wire rope on the boom truck was crushed and rusted (Tr. 54); and the drum cable was smashed (Tr. 54).   The hazard from rusted wire rope is that rust has a tendency to make the wire strands within the rope bind together so that consequently the wire rope will give (Tr. 55-56).   The Compliance Officer did not know the lifting capacity oft his type crane (Tr. 76).   In order for the line to break, it would have to be more tension on it than the   cable would stand (Tr.   [*29]   78).   While the cable had a crushed spot, or bird cage, the Compliance Officer had made no independent study as to what maximum weight that could be put on the cable and acknowledged he was not qualified to make a determination as to what it could lift or could not lift (Tr. 79).   The cable was flattened and you could see the core of the rope. The Compliance Officer had done some reading on the effect of rust on a steel cable from a manufacturer's handbook (Tr. 82).   All the rope on top of the drum was rusted (Tr. 109); about 6 to 10 feet (Tr. 110).   If the truck was left outside and got wet, it would rust in less than a weekend (Tr. 111).   Rust reduces the safety factor, but the biggest thing was the smashed rope in combination with the rust (Tr. 111).   The cable on the boom truck is 5/8 inch cable (Tr. 194-195); it is composed of 13 wires and 9 strands.   It will lift 15 tons, but could not because the truck itself did not weigh 15 tons (Tr. 195).   It would be necessary to have a counterweight (Tr. 195-196).   In the judgment of the Respondent's foreman, the maximum weight the boom could lift would be 2-1/2 tons (Tr. 197).   Complainant's Exhibit 3 is a photograph of the Fiegen boom [*30]   with the foreman in the picture.

The evidence indicated that, so far as the failure to furnish safety nets was concerned, death or serious injury would probably result in a fall (Tr. 34).   Five employees of the Respondent were exposed to falling off the roof (Tr. 34).   For the violation fo the standard of no safety nets [alleged with particularity in paragraph I] hereof, the unadjusted penalty was $1,000.00 (Tr. 38).   Credit was given for the good faith of the Respondent, its size, and a prior history of no violations under the Act for total credits of 50% (Tr. 39).   The final proposed penalty was $500.00 for the   lack of safety nets.

The Citation for alleged serious violation No. 2, regarding the lowering of an employee by a crane hook, is an alleged violation of the standard (Tr. 43); [the standard is set forth with particularity in paragraph II hereof].   In this situation falling is a danger which could also be due to a malfunction of the crane and from that height a man could be seriously injured or killed (Tr. 44).   A proposed penalty for this alleged violation was $500.00 which are arrived at in the same manner as the alleged violation for the failure to provide   [*31]   safety nets.

Citation No. 3 involved the U-bolts [set forth with particularity in paragraph III hereof] which involved a possibility of injury.   No penalty was proposed for this alleged violation (Tr. 49, 84).

The alleged violation of not providing annual inspection records, [as set forth with particularity in paragraph IV hereof], and the use of the crushed and wire rope [as set forth in said paragraph IV] involved a proposed penalty of $25.00 (Tr. 57).   The unadjusted penalty was $100.00 (Tr. 57-58); this was adjusted for good faith, size, and history and further a credit of 50% was allowed for abatement and the final adjusted penalty was $25.00 (Tr. 59).   As to these alleged violations, the entire penalty was assessed for the cable (Tr. 83-84), nothing was assessed for not having the annual inspection book in the cab (Tr. 84).

A good deal of Respondent's evidence has been incorporated in the foregoing statement of the evidence, but, at the risk of being repetitious, the undersigned will further review Respondent's evidence.

Charles Clark was the job foreman (Tr. 174).   Fiegen, Respondent's president, was not present on the date of the inspection (Tr. 174) and he came on the   [*32]   jobsite every two weeks (Tr. 189).

  Witness Clark rode the crane hook that day (Tr. 186) because he was in a hurry to get to the top (Tr. 191).   Such activity is prohibited by union rules and Fiegen company rules (Tr. 176) and Witness Clark knew this when he rode the ball (Tr. 182).   No sanction or penalties were imposed for riding the ball (Tr. 203).   The witness had never heard of anyone being called before the local for such activity (Tr. 203), and it was a common practice to ride the ball (Tr. 202).

While Fiegen maintained ropes and life lines on the job, the foreman wasn't wearing a life line because he was moving around; he did not wear a belt (Tr. 181).

Respondent has safety meetings every Monday (Tr. 175).

On the date of the inspection, the Respondent's men were on the ground about 2:30 p.m. (Tr. 178).   The Compliance Officer did not contact any of the Fiegen men (Tr. 178).

The crane is inspected once a week and when moving from job to job (Tr. 183).   The sheet metal workers, shown in Complainant's Exhibit 3, had access to the roof on April 20 (Tr. 184, 185).   On April 20, eight men were on the roof (Tr. 187).

Fiegen had instructed the witness foreman before [*33]   April 20 to have the men put on life lines or erect safety nets (Tr. 192).   Until the violation no one was using safety lines or life lines (Tr. 189).   Prior to April 20, no safety nets were erected for the people working on the structural steel (Tr. 191).

ISSUES RAISED BY RESPONDENT

The following issues were raised by the Respondent both by its pleadings, by oral motion and in its brief (Tr. 4-5, 170-173, 206-208); (Respondent's brief).

  As to certain Constitutional Issues:

The Occupational Safety and Health Act of 1970 violates the due process of law section of the 14th and 5th Amendments of the Constitution; the Act allows a search and seizure without a warrant as required by the 4th Amendment; the Act is penal is character and therefore Respondent is entitled to a jury trial requiring proof beyond a reasonable doubt under the 6th Amendment; further, the Act is an unlawful delegation of legislative and judicial powers to the Secretary of Labor to prescribe and enforce standards of alleged conduct.

The foregoing issues all test the constitutionality of the Occupational Safety and Health Act of 1970: The law is well established that an administrative body has no authority [*34]   to pass on the constitutionality of an Act which it is called upon to administer.   Engineers Public Service Company vs. SEC 78 U.S., App. D.C. 199, 138 F. 2nd 936, 952-953 (1943) dismissed as moot 332 U.S. 788, 68 S. Ct. 96, 92 L. Ed. 370. An administrative agency has the power to determine Constitutional applicability, but only the Courts have authority to take action which runs counter to the expressed will of the legislative body.   Davis, Administrative Law, Sec. 20.04.   It accordingly follows that the undersigned Judge has no authority to entertain the foregoing constitutional issues and they are denied for lack of jurisdiction.

A further issue raised by the Respondent is an issue that assumes (but does not admit) that the Act is constitutional.   Making that assumption Respondent urges that the Act should be strictly construed; therefore, under the Act before the investigator can commence his investigation of the job site or other area where work is being performed he must present his credentials to the "owner, operator, or agent in   charge," i.e., the subcontractor employer in the instant case.

Trial Counsel for the Complainant urges that the Compliance [*35]   Officer made a reasonable effort to contact the subcontractors and he therefore complied with the Act.

As seen by this Judge the issue presented is whether the Act requires that the Compliance officer is obliged to present his credentials to an employer subcontractor before commencing any investigation at a construction worksite.

Section 8(a) of the Act is the general legislative grant of authority to make inspections and it provides in part as follows:

Sec. 8(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator or agent in charge, is authorized to enter without delay and at all reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer and (2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such place of employment and all pertinent conditions,   [*36]   structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

In abbreviated form the Act reads:

The Secretary, upon presenting credentials to the owner, operator or agent in charge is authorized (1) to enter any construction site where work is performed by employee of an employer (2) to inspect and investigate.

It is significant that the Act contains no directive requiring the presentation of credentials to an "employer."

  It would have been relatively easy for the Congress to include as one of the persons to be presented with credentials to be the "employer." Congress was no doubt aware that there can be many "employers" in the form of subcontractors on a given construction site.

It is this Judge's ruling that Section 8(a) of the Act is the general legislative grant of authority for the Compliance Officer to enter a construction site and the Compliance Officer under Section 8(a) of the Act was not obliged to present his credentials to a subcontractor employer in order to enter such construction site. The Compliance Officer here had legally entered the worksite when he presented [*37]   his credentials to the general superintendent (Tr. 20, 133).   Once legally on the worksite he is not required to wear blinders and restrict his view to only the operations of the general contractor.   We further note that under the peculiar facts of this case the Compliance Officer was never on the Respondent's "worksite." There was no way to reach the roof (Tr. 151), no stairway (Tr. 152) nor scaffolding or any method to get there (Tr. 152).   To reach the roof a workman could climb a girder or some ladders off the adjoining roof (Tr. 166-167).   Until such time as the Compliance Officer entered the Respondent's workplace there was no requirement to show his credentials.

The issue urged by Respondent is denied.

Respondent further urges that assuming (but not admitting) that the Act is constitutional and further assuming that the Compliance Officer did properly contact the Respondent (both of which Respondent denies) Respondent should not be assessed a penalty for a number of reasons:

The initial reason advanced is that the Respondent conducted safety meetings and had certain rules of   conduct including instructions that no one should ever ride the "hook" of a crane; further,   [*38]   such conduct was against the Union rules.   The Respondent relies on the case of Department of Labor vs. Standard Glass Company, OSAHRC #259 in support of this proposition.   The cited case is unanimous Commission decision by Chairman Moran and it involves the failure to wear hard hats in a required area.   On the basis of the facts the Commission unanimously found that the Respondent did not violate the Act.   The Secretary's case in Standard Glass can best be quoted from Chairman Moran's opinion which reads in part as follows:

1.c. 2-3:

During the course of that inspection he [the Compliance Officer] observed two parked vehicles marked with the name Standard Glass Company within an area in which the wearing of protective helmets was required.   Two employees of the Respondent emerged from said vehicle (one of each of the two vehicles) without any type of protective head gear and engaged in a short conversation, also in the area where hard hats were required.   One walked back and forth across the said "hard hat" area, a distance of 75 to 100 feet. The two men reentered their vehicles and the Compliance Officer saw one drive away.   Their presence in this area lasted less than [*39]   five minutes.

Judge John S. Patton in Standard Glass further found that the practice was not common; it was company rule that hats be worn; hats were furnished; a reprimand could be expected if the hard hat rule was violated; Respondent made an effort to see that hard hats would be worn; Respondent did not have knowledge of the incident relied upon by the Secretary to establish the violation.   As seen by this Judge the opinion by Chairman Moran holds that an isolated brief violation of the standard contrary to the employers instructions and company rule and which was unknown to the employer does not constitute a   violation of the Act.   The situation in the instant case is neither brief nor isolated and involves what amounts to a persistent disregard of the duties prescribed by law.   As to the violation of the standard of failing to provide safety nets this violation cannot be considered a brief, nor isolated instance of a violation.   The record is clear that no safety nets or other devices for safety were in use.   As stated by the foreman "there were no safety nets working on the structural steel" (Tr. 191).   The foreman had been instructed before the date of the inspection [*40]   to have the men put on life lines, or erect safety nets (Tr. 192).   It is further apparent from the record that no safety nets existed for some time as the roof sheeting was close to being done (Tr. 165-166), the superintendent for the General Contractor stated that about 80% of the roofing deck had been completed on the date of the inspection (Tr. 169).   The violation as to the riding the crane hook and ball in this Judge's opinion falls into the same category as the lack of safety nets, namely, a persistent disregard of the standard in the instant case.   The Compliance Officer observed a man being lowered through the roof through a window opening riding on the hook of a crane (Tr. 44).   Witness Anderson acknowledged it was common practice to ride a medicine ball to the top of the roof (Tr. 165-166).   Respondent's foreman acknowledged he rode the ball on April 20 (Tr. 191) and according to him it was "common practice" (Tr. 202).   This "common practice" constitutes a persistent violation of the standard as promulgated [and set forth in paragraph II hereof.] For the reasons stated, the case of the Department of Labor vs. Standard Glass Company,   and this point is ruled against Respondent.

Respondent further urges that Respondent conducted safety meetings and the rules of conduct   were set for all employees, and because Respondent's President was not present on the jobsite, he did not know what was going on, and therefore should not be held responsible.   This argument seeks to ignore the direct Congressional mandate that each employer shall furnish a safe work place for his employees (Sec. 5(a)).   The duty to furnish a safe workplace rests upon the chief executive officer of any company as well as his foreman representatives on the jobsite.

This point is ruled against Respondent.

Respondent further urges that there is a failure of proof that the crushed and rusted wire rope is dangerous to an employee or fellow worker for the reason that there was no showing that the wires were frayed or broken and there was no showing that the boom truck was capable of lifting a weight great enough to cause the cable to break.   This issue is ruled against Respondent for the reason that the uncontroverted evidence shows that the wire rope on the boom truck was crushed and rusted (Tr. 54).   The hazard is that the strands within [*42]   the rope will bend together so that consequently the structure inside will give (Tr. 55).   Under tension this cuts down on the safety factor and the cable can break (Tr. 56).   When a cable will break is not a matter capable of direct measurement and in this Judge's opinion the Complainant is not obliged to establish at what point a cable will break.   The issue raised by Respondent is a matter that is to be resolved as a serious (Sec. 17k), or non serious violation (Sec. 17(c) of the Act).   Under the evidence this Judge finds a violation of the standard as set forth with particularity in paragraph IV (2), supra.

An additional issue raised by the Responent (Tr. 207-208) is that it was the foreman who rode the crane hook and since he is a part of "the management level"   and not an "employee" the Act is not applicable to him.   The Act recognizes no distinction between "management level" employees and "other" employees.   Section 5(a) of the Act provides:

Sec. 5(a) Each employer --

(1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his [*43]   employees;

(2) Shall comply with occupational safety and health standards promulgated under this Act.

(b) Each employee shall comply with Occupational Safety and Health Standards and all rules, regulations and orders issued pursuant to this Act which are applicable to his own actions and conduct.

This point is ruled against Respondent.

Citation Number 3, Item 2(a) alleges a violation of 29 CFR 1926.550(a) to the effect that the employer must, in part, "maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment." The Citation and standard is set forth with particularity in paragraph IV, supra. The only evidence in this transcript is that the required records were not available on the equipment.   The unobjected to hearsay declaration by the crane operator is that such records were in the possession of Respondent (Tr. 93).   The standard does not require the records to be on the equipment and the evidence in this case fails to establish a violation of 29 CFR 1926.550(a)(6); according said Citation should be vacated and likewise the proposed non-monetary penalty should be vacated. If the Secretary desires to require that the records [*44]   be with the equipment he should redraft the standard [29 CFR 1926.550(a)(6)] to include such a requirement.

The final issue urged by Respondent is that there is no showing that the Respondent had reason to believe   that the employees or foreman were violating the Act and to require Respondent to be responsible for the conduct of another would require Respondent to be an insurer.   This Judge's view as to this issue has been expressed above in considering the issue of the applicability of the Commission Decision of Standard Glass Company, Inc., OSAHRC #259.   Respondent's issue is denied.

EVIDENCE AS TO PROPOSED PENALTIES

Failure to provide safety nets exposed five employees of the Respondent to falling off the roof (Tr. 34).   Death or serious injury could result in such a fall (Tr. 34).   In view of the serious nature of this violation (Tr. 31) the unadjusted penalty is $1,000.00 (Tr. 38).   This was reduced a total of 50% for the good faith of the Respondent, its size, and prior history and this Judge finds this to be in a reasonable evaluation and assessment.   Accordingly the proposed penalty as assessed for violation of no safety nets as set forth in paragraph I,   [*45]   supra, should be affirmed.

The proposed penalty for the man being lowered on the hook of the crane is a serious violation (Tr. 43).   In this situation falling is a danger, also there could be a malfunction of the crane and from the height involved a man could be seriously injured or killed (Tr. 44).   The proposed penalty of $500 with the same credits as outlined for the previous serious violation is reasonable and proper and should be affirmed.   The foregoing allegedly serious violation constitute serious violations under Section 17(k) of the Act.

The alleged violation for the failure to have two U-bolts instead of three as the standard requires is an other than serious violation for which the Area Director proposed to assess "no penalty." This Judge finds that the standard as set forth with particularity in   paragraph II, supra, was violated in that there were only two U-bolt wire rope clips on the wire rope of the vehicle in question whereas the standard requires 3 (Tr. 46).   The proposal of a no monetary penalty is proper and should be affirmed.

The alleged violation and standards set forth in paragraph IV, supra, involving the annual inspection records   [*46]   and the crushed and rusted wire rope have been discussed above.   As to the first alleged violation of failing to have inspection records available the Complainant failed to establish a violation of the standard as promulgated and the Citation and proposed penalty should be vacated. In conjunction with this Citation Respondent was further cited with having crushed and rusted wire rope in use on the boom truck. This violation has been discussed above and the Citation and proposed penalty are proper and should be affirmed.   As to the Citation and standards set forth in paragraph IV the entire penalty was assessed for the cable (Tr. 83-84).   The penalty of $25 is reasonable and proper and the Citation and penalty should be affirmed.

FINDINGS OF FACT

1.   Respondent, Ron M. Fiegan, Inc. is now and was at all times herein mentioned incorporated under the laws of the State of South Dakota and engaged in business as an iron and structural steel erector purchasing merchandise and wares through the interstate commerce system and using the facilities of interstate commerce (Complaint, paragraph 3; Respondent's Answer paragraph 2; Tr. 5-6).

2.   On April 20, 1972 Respondent employed iron workers [*47]   (Tr. 139) on a construction worksite on the South Dakota State University Campus in Brookings,   South Dakota (Tr. 19; Complaint paragraph III, Respondent's Answer, paragraph 2).

3.   Employees of Respondent were working on a roof at said construction site (Tr. 163, 164, 187).

4.   There were no safety nets (Tr. 191).

5.   Five employees of Respondent were on the roof (Tr. 140) and exposed to falling off (Tr. 34, 140).

6.   It was 65 feet from the roof to ground level (Tr. 97-98, 142).

7.   It was not possible to tie off on top of the steel roof (Tr. 179) hence the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts were not practical.

8.   On the date of the inspection the roofing deck was 80% completed (Tr. 169).

9.   On April 20, 1972 the foreman of Respondent (Tr. 174) rode the ball of the crane (Tr. 191, 44, 45, 120, 141).

10.   Riding the ball was a common practice (Tr. 165-166; 202).

11.   On April 20, 1972 only two U-bolt rope clips on the wire rope of Respondent's truck (Tr. 46).

12.   On April 20, 1972 the annual inspection records of the hoisting machinery were not located with the hoisting machinery (Tr. 50).

13.   On April [*48]   20, 1972 the wire rope on the boom truck was crushed and rusted (Tr. 54).

CONCLUSIONS OF LAW

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 of the Occupational Safety and Health Act of 1970.

2.   The Respondent is and was at all times herein mentioned, an employer within the meaning of Section   3(5) of the Act and subject to its provisions under Section 4(a) and 5(a) of the Act and standards promulgated under Section 6.

3.   Respondent violated Section 5(a)(2) of the Act by reason of the violation of certain occupational safety and health standards, as hereinafter designated, and the proposed penalties listed thereafter are appropriate under the Act and, according, to giving due consideration to the size of the business of the Respondent, the gravity of the violation, Respondent's good faith, and prior history, said proposed penalties should be affirmed.

Standard violated

Proposed Civil Penalty

29 CFR 1926.105

$500

29 CFR 1910.180

$500

29 CFR 1926.251

None

29 CFR 1926.550(a)(7)(ii)

$25

 

4.   The alleged violation of 29 CFR 1926.550(a)(6) set forth in Citation [*49]   No. 3, Item 2(1), pertaining to inspection records [and set forth with particularity in paragraph IV hereof] was not established under the evidence in the record and said Citation should be vacated.

5.   No monetary penalty was attributed to the alleged violation set forth in the preceding paragraph, but any penalty thereon should be vacated.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED:

1.   Citation No. 1 for serious Violation [29 CFR 1926.105 as set forth with particularity in paragraph I of this decision] is affirmed.

2.   The proposed penalty of $500 for the violation found in the preceding paragraph is affirmed.

  3.   Citation No. 2 for Serious Violation [29 CFR 1910.180, as set forth with particularity in paragraph II of this decision] is affirmed.

4.   The proposed penalty of $500 for the violation found in the preceding paragraph is affirmed.

5.   Citation Number 3, Item 1 for an other than serious violation [29 CFR 1926.251(c)(5) as set forth with particularity in paragraph II of this decision] is affirmed.

6.   The proposal to access no monetary penalty for the violation found in the preceding paragraph is affirmed.   [*50]  

7.   Citation number 3, Item 2(1), pertaining to inspection records [29 CFR 1926.550(a)(6), as set forth with particularity in paragraph IV of this Decision] is vacated.

8.   Any penalty proposed for the alleged violation set forth in the preceding paragraph is vacated.

9.   Citation number 3, Item 2(2) [29 CFR 1926.550(7)(ii), as set forth with particularity in paragraph IV of this Decision] pertaining to the wire rope on the boom truck, is affirmed.

10.   The proposed penalty of $25 for the violation found in the preceding paragraph is affirmed.