UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 5769
K & T STEEL CORPORATION,
February 24, 1976
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
The decision of administrative Law Judge Thomas J. Donegan was rendered on January 30, 1975. K & T Steel Corporation, the respondent employer, petitioned for review of the Judge’s decision by the full Commission. An order for review was issued by Commissioner Moran. Although the order for review does not refer to the petition, the issues described therein parallel closely to those raised by the petition. The decision discusses the issues as framed and argued by the petitioner. Essentially, the issues concern: (1) the application of a general machine-guarding standard to a hydraulic press brake and a plate rolling machine; (2) the validity of the standard in light of assertions of vagueness and unlawful adoption; and (3) an asserted impossibility defense.
Respondent’s manufacturing activities include structural and miscellaneous steel fabrication, reinforcing bar fabrication and tank fabrication. On November 7, 1973, respondent’s workplace was inspected by an OSHA compliance officer. As a result of this inspection two citations were issued. The first citation was not contested. The second citation alleged a violation that grouped together three alleged infractions of 29 CFR § 1910.212(a)(3)(ii) for failure to provide point-of-operation guarding on three separate machines:
The three machines are: (1) an HTC hydraulic press brake; (2) a plate rolling machine used to roll barrels and metal stock; and (3) a Mubea ironworker. Respondent admitted the violation as to the ironworker. Respondent timely contested the citation as to the remaining two machines and as to the proposed penalty of $550.
Judge Donegan held that 29 CFR § 1910.212(a)(3)(ii) was applicable to the machines involved and that respondent violated the standard by failing to provide point-of-operation guarding on the machines. In determining the appropriate penalty, the Judge found that the gravity of the violation was low due to the limited amount of time these machines were in operation each day. Considering the good faith of the respondent and the absence of prior injuries, he assessed a penalty of $150.
For the reasons that follow we affirm the decision of the Judge finding respondent in violation of the Act insofar as it is consistent with this opinion.
Respondent argues that the exclusion of press brakes and hydraulic power presses in 29 CFR § 1910.217(5) precludes the citation of such hydraulic press brakes under section 1910.212(a)(3)(ii). This argument was rejected by the Commission in Irvington Moore, No. 3116 (April 7, 1975) 16 OSAHRC 608. For the reasons expressed in that decision it also fails here.
Respondent in its brief before the Commission argues that 29 CFR § 1910.212(a)(3)(ii) was invalidly enacted. This issue was not raised at the hearing by respondent. In any event, we reject the contentions. Respondent relies upon the decision of Administrative Law Judge Garl Watkins in Western Steel Mfg. Co., No. 3528 (October 8, 1974) (Administrative Law Judge) review ordered, November 6, 1974, holding 29 CFR § 1910.212(a)(3)(ii) invalid because of the form of its enactment. We reject the contentions for the reasons stated in our decision in Diebold, Inc., Nos. 6767, 7721 & 9496 (January 22, 1976).
Respondent next argues that section 1910.212(a)(3)(ii) is unenforceably vague. We reject the argument. The performance required by the standard is clear enough. Diebold, Inc., supra.
It is undisputed that neither of these machines was equipped with any point-of-operation guards. Therefore, if the operation of these machines exposes an employee to injury, a violation of 29 CFR § 1910.212(a)(3)(ii) has occurred. Buckeye Industries, Inc., No. 8454 (December 22, 1975).
That the operation of both the press brake and the plate rolling machine exposed employees to injury is clear. The hazards to which the employees were exposed can best be identified by a description of the processes involved in the operation of each of these machines.
The press brake is used for bending sheet metal through the action of an upper die or ram descending until it has pressed the sheet metal inserted between the two dies by the employees into the desired form or shape. Up to 200 tons of pressure can be exerted by this machine. The operator testified that he stands approximately 18″ from the front of the machine and that his fingers come within 2″ from the bottom die during the cycle. An assistant stands one to two feet from the machine and his hands come as close as 1″ from the bottom die. A safety witness testified that if the fingers or hands of these employees remained in the area between the two dies as the ram descended, severe injuries in the nature of abrasions, contusions, amputations, and simple and compound fractures could result.
The plate rolling machine is used to form flat metal sheets into various sized cylindrical tanks. The rollers are eight inches in diameter and eight feet in length. They revolve at a speed of ten revolutions per minute during the operating cycle. The operator stands at arm’s length from the machine and feeds the plates into the rollers. His hands come as close as 6″ to the point of entry between the rollers. The safety expert testified that if the fingers or hands of the operator were to get caught between the rollers, severe crushing injuries and multiple fractures could occur.
In view of the above-described hazards to which employees are exposed during the operation of these machines, the failure of respondent to provide appropriate devices to guard against such hazards is a clear violation of § 1910.212(a)(3)(ii). Sheet Metal Specialty Co., No. 5022 (April 22, 1975) 17 OSAHRC 212.
As a final defense respondent argues that it cannot be penalized for non-compliance as it cannot possibly comply with this standard because there exist no appropriate guards with which to equip these machines.
The evidence clearly shows the feasibility of equipping respondent’s press brakes with various types of guarding devices. Respondent does not deny that its press brake could be equipped with such guards, but asserts that because it performs custom jobs rather than repetitive production work, such guards could not be conveniently used. Even if proved, the fact that it is less convenient to use point-of-operation guards during a work process does not meet the level of proof necessary to establish an impossibility of compliance defense. Sheet Metal Specialty Co., No. 5022 (April 22, 1975) 17 OSAHRC 212; Garrison & Associates, No. 4235 (April 22, 1975) 17 OSAHRC 188.
Neither has respondent established this defense as to the plate rolling machine. It argues that there are no existing guards that can prevent what the standard literally prohibits, i.e., the operator from having any part of his body in the danger zone during the operating cycle. Its evidence on this issue consisted of statements made by the president of the company that the machine was not sold with point-of-operation guards; that the manufacturer advised him that none were available; and that to the best of his knowledge other similar machines in the area were not equipped with any such guards.
This evidence also falls far short of preponderant. Something more than unsupported assertions that no appropriate guards are available is needed.
For these reasons the Judge’s decision finding respondent in violation of 29 CFR § 1910.212(a)(3)(ii) is affirmed.
In assessing a penalty the Judge found that the gravity of the violation was low due to the limited amount of time these machines were in operation each day and taking into consideration the good faith of the respondent and the lack of previous violations, he assessed a penalty of $150. Having examined the record in its entirety and having given the factors specified in section 17(j) of the Act their due consideration, we agree.
Accordingly, the citation for a serious violation of 29 CFR § 1910.212(a)(3)(ii) is affirmed and a penalty of $150 assessed. It is so ORDERED.
FOR THE COMMISSION:
William S. McLaughlin
DATED: FEB 24, 1976
MORAN, Commissioner, Dissenting:
For the reasons I stated in Secretary v. Irvington Moore, Division of U.S. Natural Resources, Inc., 16 OSAHRC 608, 612 (1975), and Secretary v. Gem-Top Mfg., Inc., 16 OSAHRC 591 (1975), the portion of the citation pertaining to the respondent’s HTC hydraulic press brake should be vacated because 29 C.F.R. § 1910.217 rather than 29 C.F.R. § 1910.212(a)(3)(ii) applies to press brakes.
Likewise, on the record in this case, a violation based upon noncompliance with § 1910.212(a)(3)(ii) cannot be established as to the unguarded plate rolling machine. That standard specifically requires that:
‘The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.’
The majority decision misplaces the burden of proof in this regard. The standard clearly requires the complainant to establish that there was an appropriate standard prescribing a particular guarding device or that one could be designed and constructed to provide the protection specified in § 1910.212(a)(3)(ii). The complainant failed to prove either.
Furthermore, despite what my colleagues say, the record clearly establishes that no guard could be used which would comply with this requirement. Respondent’s president testified that the manufacturer of the plate roller had informed him no such guards were available. In corroboration thereof, it was established that other companies in the area also were not using guards. Moreover, even though complainant’s witness, a state director of safety and fire prevention, enumerated various methods of guarding the plate roller, he also admitted that all of those particular methods would not prevent exposure of the operator’s body to the danger zone.
By affirming a violation when compliance is not possible, Messrs. Barnako and Cleary have ignored substantial Commission precedent. See Secretary v. Underhill Construction Corp., 15 OSAHRC 695 (1975); Secretary v. Universal Sheet Metal Corporation, 9 OSAHRC 742, 743 (1974); Secretary v. W. B. Meredith II, Inc., 9 OSAHRC 245, 246 (1974); Secretary v. J. H. Baxter and Company, 4 OSAHRC 496, 506 (1973). They have also penalized this respondent for failing to do the impossible.
The purpose of this law is not to penalize employers—but to reduce work accidents and injuries. As Dr. Morton Corn, Assistant Secretary of Labor for Occupational Safety and Health stated as he assumed that office on December 2, 1975:
‘Punitive measures alone will not bring about major changes in occupational safety and health in the U.S.’
Deputy Assistant Secretary of Labor Marshall L. Miller made a similar but more positive statement on January 27, 1976 when he said:
‘The best way to reduce hazards . . . is to educate people in the hazards involved and the necessary measures to avoid those hazards.’
What are the necessary measures to avoid the hazards which my colleagues have found in this case? They don’t say. So what has been accomplished for workplace safety as a result of these proceedings against this respondent? Not a thing.
In my opinion Messrs. Barnako and Cleary have, with this decision, contributed to the problems which have plagued the implementation of this Act and which Dr. Corn and his associates are apparently attempting to overcome. These were rather succinctly described by former Secretary of Labor John T. Dunlop when he said on August 7, 1975:
‘The present procedures are aimed at maximizing antagonisms.’
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 5769
K & T STEEL CORPORATION,
Final Date Order: March 03, 1975
DECISION AND ORDER
For the Complainant: Malcolm R. Trifon, Attorney Office of the Solicitor U. S. Department of Labor 450 Golden Gate Avenue, Box 36017 10404 Federal Building San Francisco, California 94102
For the Respondent: Robert M. Harwood, Attorney Benoit, Alexander & Harwood Twin Falls Bank & Trust Bldg. P. O. Box 366 Twin Falls, Idaho 83301
Donegan, Judge, OSAHRC:
This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.)
The Respondent had under its control and was operating a steel fabricating plant at Twin Falls, Idaho on November 7, 1973, when an OSHA compliance officer inspected this place of employment.
As a result of this inspection, a citation number 1 for alleged non-serious violations (6 items) and a citation number 2 for all alleged serious violation, involving three machines, were issued to the Respondent, on November 27, 1973, by the Complainant.
In a notification of proposed penalty issued to the Respondent on the same date, the Complainant proposed that no penalties be assessed for the alleged non-serious violations (6 items) of citation number 1 and that $500 be assessed for the serious violation alleged in citation number 2.
The Respondent timely contested that allegation that the hydraulic press brake (2) and the plate rolling machine (3) were in violation of the standard as charged in citation number 2 for a serious violation. The allegation in this citation that the Mubea Ironworker (1) violated this standard was not contested by the Respondent.
Citation number 2 for a serious violation alleges that the Respondent violated the Act by failing to comply with 29 CFR 1910.212(a)(3)(ii) as follows:
‘(1) A Mubea Ironworker, Serial #KBL 16
(2) One HTC hydraulic press brake, Serial #371462, located in the tank bay is not equipped with point of operation guards.
(3) A plate rolling machine, located in the tank bay, is not provided with a guard at the point of operation area between the two feed rolls; which would prevent employees’ hands from coming in contact with these rolls.
THE ABOVE THREE (3) INSTANCES OF FAILURE TO PROVIDE POINT OF OPERATION GUARDS, ANY ONE OF WHICH COULD ALONE BE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR CITATION AND PENALTY PURPOSES TO FROM THIS ONE ALLEGED SERIOUS VIOLATION.’
The standard which is alleged to have been violated in citation number 2 provides as follows:
‘29 CFR 1910.212(a)(3)(ii)
§ 1910.212 General requirements for all machines.
(a) Machine guarding.
(3) Point of operation guarding.
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger cone during the operating cycle.’
A complaint was filed on January 3, 1974. The complaint (paragraph IX) amends the description of the violation alleged in citation number 2 for the purpose of adding the phrase, “the operation of each of which exposed an employee to injury.” This amendment was allowed under Commission Rule 33(a)(3).
The Respondent answered the complaint with a letter dated January 14, 1974, signed by the President of the Respondent Corporation, which denied that the Act had been violated as alleged in the complaint.
The Complainant filed a motion on April 1, 1974 to amend the complaint. An Order denying this motion was issued by this Judge on April 16, 1974.
The Complainant filed a request for admissions on March 21, 1974. In a letter , dated April 17, 1974, the Respondent expressed agreement with all the requests for admissions except item no. 5. This item states that the penalty proposed for the non-contested violation involving the Mubea Ironworker was not contested. At the hearing the Complainant agreed that item no. 5 of the request for admissions was in error and that the proposed penalty concerning the Mubea Ironworker non-contested violation was in issue (T. 5–7).
No affected employees or representatives of affected employees requested leave to intervene or have elected to participate in this proceeding as a party.
The Complainant and the Respondent have submitted briefs in this case.
ISSUES AND FINDINGS
Before evidence was introduced at the hearing, the Respondent moved to dismiss the case, contending that the Act and regulations at issue violate the Fifth Amendment of the Constitution (T. 8–9, 246).
The Judge ruled on this motion, holding that he did not have jurisdiction to decide the issue of the constitutionality of the Act (T. 10–12, 247).
The Respondent also made motions at the hearing to dismiss on the grounds of the vagueness of the standard [29 CFR 1910.212(a)(3)(ii)] allegedly violated, and that the hydraulic press brake was an excluded machine under 29 CFR 1910.217(a)(5) (T. 9–12, 247—251). Rulings were reserved on these motions until this decision.
The Respondent’s contention, that the standard [29 CFR 1910.212(a)(3)(ii)] is unenforceable because of vagueness is concerned with point of operation guarding for all machines.
The standard prescribes that in the absence of applicable specific standards for guarding, which is the situation in this case, the guarding device shall be so designed and constructed as to prevent, in this case, the operators of the hydraulic press brake and the plate rolling machine from having any parts of their bodies in the danger zones of these machines during the operating cycle.
The standard gives fair warning of what is required in the way of guarding by stating that the purpose of guarding is to keep parts of the operator’s body out of the danger zone of the machine during the operating cycle.
The standard is not vague and unenforceable because it does not specify how the guarding shall be accomplished. It would be arbitrary and unreasonable to hold that the Secretary of Labor must specify the type of guarding that is required for the many different types of machines to which this standard is applicable.
It is concluded that this standard [29 CFR 1910.212(a)(3)(ii)] is not vague to the extent that it is unenforceable. The standard is clear as to safety factors involved and an employer is not placed in jeopardy of non-compliance when a good faith attempt is made to comply with the standard.
The Respondent’s contention is rejected that the hydraulic press brake is not in violation of the standard [29 CFR 1910.212(a)(3)(ii)] because it is an excluded machine under the requirements for guarding mechanical power presses [29 CFR 1910.217(a)(5)]. This exclusion is clearly limited to the requirements of this section (1910.217) and does not apply to the section (1910.212) concerned with point of operation guarding for all machines.
It is concluded that the standard [29 CFR 1910.212(a)(3)(ii)], which is alleged to have been violated, is applicable to the hydraulic press brake as well as the plate rolling machine.
It is concluded from the substantial credible evidence that the points of operation of the hydraulic press brake and the plate rolling machine are danger zones wherein the operators were exposed to injury during the operating cycle of the machines. The points of operation of these machines were not guarded in compliance with the standard alleged to have been violated (T. 17, 18, 49, 53, 66, 67, 79, 86, 92–94, 102, 113, 117–119, 128–130, 143, 146, 152, 156, 191, 218).
The evidence also sustains a finding that guarding can be applied to the hydraulic press brake and the plate rolling machine to prevent the operator from having any part of the body in the danger zones of the points of operation of these machines during the operating cycle (T. 175–244).
Based on the testimony, a finding is made that serious injuries in the form of crushed hands and fingers with possible resulting amputation could occur from the lack of guarding at the point of operation of the press brake if the hands or fingers of the operators should be placed inadvertently between the dies of the hydraulic press brake while the ram is descending. It is also found that the operator of the plate rolling mill could suffer similar injuries in the event his hands or clothing came in contact with the rollers of this machine. The procedures followed in operating these machines and a history of no accidents since they have been in operation at the Respondent’s plant, supports a conclusion that the probability of an accident occurring is small (T. 17, 18, 32, 46, 97, 120, 121, 138, 191–194, 218–219, 254, 256).
The proposed penalty of $500 for the serious violation involving the three machines:
1. Mubea Ironworker 2. hydraulic press brake; 3. plate rolling machine) has been contested and consequently it is necessary to determine whether this penalty is appropriate.
The three machines are not operated on an assembly line type of production. The plant is primarily engaged in the type of work which is performed in a job shop (T. 36, 252). The Respondent agreed with paragraphs six and seven of the Complainant’s ‘Requests For Admissions’ wherein it is stated that the hydraulic press brake and the plate rolling machine are operated by Respondent’s employees throughout a normal workday on a regular basis. There is no admission in this regard concerning the Mubea Ironworker.
The employee who has worked with the Mubea Ironworker, testified that a number of employees have access to and use this machine. He did not know if the machine is used every day (T. 168).
The testimony reflects that the hydraulic press brake was operated about an hour a day (T. 79, 81, 85). The regular operator is assisted by a helper (T. 102, 104).
The operator of the plate rolling machine operates this machine about an hour on an average day although sometimes it is operated two hours a day and very rarely is it operated three hours in a day (T. 132).
After weighing the available evidence concerning the factors which are relevant to a determination of the extent of employee exposure to the unguarded points of operation of these three machines, it is concluded that the gravity of the serious violation charged in the citation is not of a high order.
At the time of the inspection, the Respondent had 63 employees of which 40 to 50 work in the shop. The Company is in the middle class as to size when compared with steel fabricators in the Northwest (T. 15, 260).
The evidence reflects that the Respondent is concerned with safety and merits full credit for good faith (T. 21, 253, 255, 256, 258).
The Respondent has no history of previous violations under the Act (T. 21).
After considering the penalty criteria set forth in section 17(j) of the Act, it is determined that it is appropriate to assess a penalty of $150 for the serious violation involving the three machines named in citation number 2.
CONCLUSIONS OF LAW
1. The Respondent, K & T Steel Corporation, was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.
3. The Occupational Safety and Health Review Commission does not have the jurisdictional authority to rule on the issue of the constitutionality of the Act.
4. The place of employment maintained by the Respondent at Twin Falls, Idaho was inspected by an authorized employee of the Secretary of Labor on November 7, 1973 in accordance with the requirements of section 8 of the Act.
5. The Respondent was in violation of section 5(a)(2) of the Act on November 7, 1973. This violation occurred as a result of the hydraulic press brake and the plate rolling machine not being in compliance with 29 CFR 1910.212(a)(3)(ii), a regulation or standard promulgated by the Secretary of Labor as provided in section 6 of the Act.
6. This violation involving the hydraulic press brake and the plate rolling machine was of a serious nature within the meaning of section 17(k) of the Act.
7. The civil penalty of $150, which is assessed herein for the serious violation of citation number 2, is assessed pursuant to and as a result of giving due consideration to the criteria set forth in section 17(j) of the Act.
Based on the foregoing findings of fact and conclusions of law, it is ORDERED:
1. That citation number 2 for a serious violation be, and is hereby affirmed as it applies to the hydraulic press brake and the plate rolling machine.
2. That the proposed penalty of $550 for the serious violation alleged in citation number 2 for a serious violation be, and is hereby vacated.
3. That a civil penalty of $150 be, and is hereby assessed for the serious violation set forth in citation number 2.
THOMAS J. DONEGAN
Dated: January 30, 1975
 That standard reads:
§ 1910.212 General requirements for all machines.
(a) Machine guarding.
(3) Point of operation guarding.
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
 That standard reads:
§ 1910.217 Mechanical Power Presses.
(a) General Requirements.
(5) Excluded Machines. Press brakes, hydraulic and pneumatic power presses, bulldozers, hot bending and hot metal presses, forging presses and hammers, riveting machines and similar types of fastener applicators are excluded from the requirements of this section.
 For my own part, I adhere to the view stated in my dissenting opinion in Sante Fe Trail Transport. Co., No. 331 (December 18, 1973), rev’d 505 F.2d 869 (10th Cir. 1974), that the Commission has no power to declare a standard unenforceable by reason of vagueness.
 An assertion that compliance with a standard is impossible due to the nature of the work being done is, at most, an affirmative defense. Brennan v. O.S.H.R.C. & Underhill Constr. Co., 513 F.2d 1032 (2d Cir. 1975). An employer may of course seek a variance from a standard so long as a safety practice is adopted that provides equal protection for employees.
 The respondent also points to the failure of the Secretary’s safety witness to identify any existing guarding devices which prevent the operator from having any part of his body in the danger zone during the operating cycle.
Inasmuch as impossibility of compliance is at most, an affirmative defense, the Secretary does not have the burden of showing that the respondent is able to comply with a cited standard. Buckeye Industries, Inc., No. 8454 (December 22, 1975).
In any event, the Secretary’s witness did demonstrate various tripbar or release mechanisms with which the plate rolling machine could be equipped whereby the operator could cause the rollers to separate if any part of his body (or clothing) became lodged between the two rollers.
As respondent’s machine is not equipped with such a device we need not address the question of whether such release devices are sufficient guarding devices under section 1910.212(a)(3)(ii).
 It is my separate view that, even if the evidence conclusively established the present unavailability of such guards, which it clearly does not, the Secretary could make allowance for this in prescribing abatement requirements permitting the development of new safety devices. As the Second Circuit stated in Society of Plastics Industry, Inc. v. O.S.H.A., 509 F.2d 1301, (2d Cir. 1975), cert. denied 95 S.Ct. 1998 (1975):
In the area of safety, we wish to emphasize, the Secretary is not restricted by the status quo. He may raise standards which require improvements in existing technologies or which require the development of new technology, and he is not limited to issuing standards based solely on devices already fully developed.
509 F.2d at 1309 (citations omitted).
 The majority asserts that the machines here involved clearly ‘exposed employees to injury.’ They find a violation but do not point to anything which respondent can feasibly do to reduce that exposure. The record, however, shows that something must be going right, for Judge Donegan specifically found in his decision (which is attached hereto as Appendix A):
‘a history of no accidents since they have been in operation.’
 The Complainant received this letter although a copy was not in the record. Prior to the hearing, the Respondent was represented by William Koch, President of K&T Steel Corporation.
 See: Secretary v. Rea Express Co., 2 OSAHRC 959 (RC 1973); Secretary v. American Smelting and Refining Company, OSAHRC Docket No. 10 (August 17, 1973); American Smelting and Refining Company v. OSAHRC 501 F.2d 504 (8th Cir 1974).
 29 CFR 1910.217(a)(5) provides.
Excluded machines. Press brakes, hydraulic and pneumatic power presses, bulldozers, hot bending and hot metal presses, forging presses and hammers, riveting machines and similar types of fastener applicators are excluded from the requirements of this section.
 See: Secretary v. Consolidated Metal Products, a Division of Schott Industries, Inc., OSAHRC DOCKET No. 3620 (September 18, 1974).
 Section 17(j) provides:
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 of previous violations.