“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 7869\t\t\t\t\t\t\t\t\t\tALPHA POSTER SERVICE, INC.\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBefore Barnako, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\tA decision of Review Commission Judge Ben D. Worcester, dated May 15, 1975, which\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tis attached hereto as Appendix A, is before the Commission for review pursuant to 29 U.S.C. \u00a7\t\t\t\t\t\t\t\t\t\t661(i). Review was directed on whether the Judge erred:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018(1) In concluding that respondent contested the citation in its notice of contest?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(2) In vacating items 6 and 14 of the [notification of additional proposed\t\t\t\t\t\t\t\t\t\tpenalties] for failure to abate previous violations?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(3) In vacating items 3, 4, and 5 of the citation for willful violation, and reducing\t\t\t\t\t\t\t\t\t\titems 1 and 2 of the citation for willful violation to nonserious violations?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(4) In the assessment of all penalties?\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe first directed issue is answered in the negative. As the Judge notes in his decision,\t\t\t\t\t\t\t\t\t\trespondent\u2019s notice of contest is somewhat ambiguous. Subsequent to the filing of its notice of\t\t\t\t\t\t\t\t\t\tcontest, however, respondent indicated that its intention had been to contest the alleged\t\t\t\t\t\t\t\t\t\tviolations. In Secretary v. Turnbull Millwork Company, OSAHRC Docket No. 7413, December\t\t\t\t\t\t\t\t\t\t15, 1975, a divided Commission held that it would permit amendment of notices of contest,\t\t\t\t\t\t\t\t\t\twhich by their words are limited solely to the penalty, to include a contest of the citation, if a\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tChairman Barnako does not agree to this attachment.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\trespondent subsequently indicates that he intended to also contest the citation when he filed his\t\t\t\t\t\t\t\t\t\tnotice of contest. That decision is dispositive of this issue.\t\t\t\t\t\t\t\t\t\tComplainant has not briefed the issue concerning the propriety of the Judge\u2019s vacation of\t\t\t\t\t\t\t\t\t\titem of the notification of additional proposed penalties for failure to abate previous violations.\t\t\t\t\t\t\t\t\t\tChairman Barnako and Commissioner Cleary consider this to be an abandonment of the\t\t\t\t\t\t\t\t\t\tassertion, which complainant made in his petition for review, that the Judge erred in vacating\t\t\t\t\t\t\t\t\t\tthat item. Consequently, they affirm the Judge on this issue. Commissioner Moran also affirms\t\t\t\t\t\t\t\t\t\tthe Judge on this issue because he agrees with the Judge\u2019s finding that complainant failed to\t\t\t\t\t\t\t\t\t\testablish that respondent\u2019s employees were exposed to the alleged hazard.\t\t\t\t\t\t\t\t\t\tItem 14 of the notification of additional proposed penalties for failure to abate previous\t\t\t\t\t\t\t\t\t\tviolations, pertains to the dispensing of Class I liquids into containers for which no provision had\t\t\t\t\t\t\t\t\t\tbeen made for electrically interconnecting the nozzle and container in contravention of 29 C.F.R.\t\t\t\t\t\t\t\t\t\t\u00a7 1910.106(e)(6)(ii). Item 4 of the citation for willful violation avers that respondent failed to\t\t\t\t\t\t\t\t\t\tcomply with 29 C.F.R. \u00a7 1910.106(e)(2)(iv)(d) in that flammable and combustible liquids were\t\t\t\t\t\t\t\t\t\tbeing transferred into containers without the use of safety cans or other approved methods. Item\t\t\t\t\t\t\t\t\t\t5 of this citation alleges noncompliance with 29 C.F.R. \u00a7 1910.106(e)(2)(iv)(a) in that flammable\t\t\t\t\t\t\t\t\t\tliquids were not kept in covered containers. The Judge vacated all three items because the labels\t\t\t\t\t\t\t\t\t\ton the containers in question were insufficient evidence of the type of liquids contained therein.\t\t\t\t\t\t\t\t\t\tChairman Barnako and Commissioner Cleary find that the Judge erred. In their view, it is\t\t\t\t\t\t\t\t\t\tpresumed that the label on a container accurately describes the contents. In the absence of\t\t\t\t\t\t\t\t\t\tsufficient contradictory evidence, such a presumption alone is enough to establish the contents of\t\t\t\t\t\t\t\t\t\tthe container. Fed. R. Evid. 301; see Secretary v. Western Waterproofing Company, 9 OSAHRC\t\t\t\t\t\t\t\t\t\t979, 988\u2013990 (1974) (Administrative Law Judge). Commissioner Moran agrees with the Judge\u2019s\t\t\t\t\t\t\t\t\t\tdecision.\t\t\t\t\t\t\t\t\t\tChairman Barnako finds, however, that items 4 and 5 were not willful violations as the\t\t\t\t\t\t\t\t\t\tevidence fails to establish that respondent either intentionally disregarded the standards or\t\t\t\t\t\t\t\t\t\tdemonstrated plain indifference to the Act. Secretary v. Graven Brothers and Company,\t\t\t\t\t\t\t\t\t\tOSAHRC Docket No. 2538, March 26, 1976. Since both items involve substantially the same\t\t\t\t\t\t\t\t\t\tviolative conduct and because the question of whether the alleged violations were serious was\t\t\t\t\t\t\t\t\t\tnot tried by the express or implied consent of the parties, he finds that the two items merge into\t\t\t\t\t\t\t\t\t\tone nonserious violation. See Secretary v. Environmental Utilities Corporation, OSAHRC\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tDocket No. 3141, February 6, 1976. Commissioner Cleary agrees with Chairman Barnako in this\t\t\t\t\t\t\t\t\t\trespect, but he would go further and hold that the nonserious violation is also willful because the\t\t\t\t\t\t\t\t\t\tcited items were identical to those in a citation issued in the previous month; i.e. March 1974.\t\t\t\t\t\t\t\t\t\tItem 3 of the citation for willful violation alleges that respondent violated 29 C.F.R.\t\t\t\t\t\t\t\t\t\t\u00a7\t\t\t\t\t\t1910.106(e)(2)(ii)(b)(2) in that the quantity of combustible liquids located outside of an inside\t\t\t\t\t\t\t\t\t\tstorage cabinet exceeded 120 gallons. The Judge vacated this item because complainant did not\t\t\t\t\t\t\t\t\t\tprove that the quantity of the liquid so stored exceeded 120 gallons. Chairman Barnako and\t\t\t\t\t\t\t\t\t\tCommissioner Cleary agree to vacate because the evidence does not indicate that the liquid\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tstored was a Class IB, IC, II, or III liquid. Commissioner Moran agrees with the Judge\u2019s\t\t\t\t\t\t\t\t\t\tfinding.\t\t\t\t\t\t\t\t\t\tAll Commission members agree with the Judge\u2019s finding as to items 1 and 2 of the\t\t\t\t\t\t\t\t\t\tcitation for willful violation. They also agree that the amounts of all penalties assessed by the\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tJudge are appropriate.\t\t\t\t\t\t\t\t\t\tChairman Barnako and Commissioner Cleary agree that a penalty of $45 is appropriate\t\t\t\t\t\t\t\t\t\tfor item 14 of the notification for failure to abate. Chairman Barnako finds that a penalty of $115\t\t\t\t\t\t\t\t\t\tis appropriate for items 4 and 5 of the citation for willful violation, and Commissioner Cleary\t\t\t\t\t\t\t\t\t\tagrees that a penalty of at least that amount should be assessed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAccordingly, item 14 of the notification for failure to abate is affirmed, items 4 and 5 of\t\t\t\t\t\t\t\t\t\tthe citation for willful violation are affirmed as one nonserious violation, and penalties of $45\t\t\t\t\t\t\t\t\t\tand $115 are assessed therefor, respectively. The remaining findings of the Judge are affirmed:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: NOV 30, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tThey also note that complainant has not briefed this issue.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tAll penalty determinations herein are based on consideration of the entire record in conjunction\t\t\t\t\t\t\t\t\t\twith the statutory criteria contained in 29 U.S.C. \u00a7 661(i).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 7869\t\t\t\t\t\t\t\t\t\tALPHA POSTER SERVICE, INC.\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAlan J. Davis, Esq., of Philadelphia, Pennsylvania\t\t\t\t\t\t\t\t\t\tfor the Secretary\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tLarrick B. Stapleton, Esq., of Philadelphia, Pennsylvania\t\t\t\t\t\t\t\t\t\tfor the Respondent\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBen D. Worcester, Judge, OSAHRC\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTHE CASE\t\t\t\t\t\t\t\t\t\tThis proceeding arises pursuant to a notice of contest filed by the respondent, Alpha\t\t\t\t\t\t\t\t\t\tPoster Service, Inc., under the provisions of section 10(c) of the Occupational Safety and Health\t\t\t\t\t\t\t\t\t\tAct of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. An\t\t\t\t\t\t\t\t\t\tinspection of Alpha Poster Service\u2019s place of business in the city of Philadelphia, Pennsylvania\t\t\t\t\t\t\t\t\t\ton February 20, 1974, by one of the Secretary\u2019s compliance officers resulted in the issuance of a\t\t\t\t\t\t\t\t\t\tcitation charging Alpha with 21 violations of the standards promulgated by the Secretary. This\t\t\t\t\t\t\t\t\t\tcitation became a final order not subject to review by operation of law since no timely notice of\t\t\t\t\t\t\t\t\t\tcontest was filed by Alpha.\t\t\t\t\t\t\t\t\t\tOn April 11, 1974, the Secretary conducted a second inspection at the same location.\t\t\t\t\t\t\t\t\t\tThis resulted in two new citations being issued on April 22, 1974. One alleged failure to abate\t\t\t\t\t\t\t\t\t\tsome of the original 21 violations, and one alleged that there were 5 willful violations. The\t\t\t\t\t\t\t\t\t\tSecretary, in its Notification of Proposed Penalty, recommended that Alpha be assessed penalties\t\t\t\t\t\t\t\t\t\tfor failure to correct violations as follows:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCitation No. 1\t\t\t\t\t\t\t\t\t\tItem #2\t\t\t\t\t\t135.00\t\t\t\t\t\t\t\t\t\tItem #3\t\t\t\t\t\t135.00\t\t\t\t\t\t\t\t\t\tItem #4\t\t\t\t\t\t135.00\t\t\t\t\t\t\t\t\t\tItem #5\t\t\t\t\t\t135.00\t\t\t\t\t\t\t\t\t\tItem #6\t\t\t\t\t\t450.00\t\t\t\t\t\t\t\t\t\tItem #8\t\t\t\t\t\t135.00\t\t\t\t\t\t\t\t\t\tItem #9\t\t\t\t\t\t450.00\t\t\t\t\t\t\t\t\t\tItem #14\t\t\t\t\t\t450.00\t\t\t\t\t\t\t\t\t\tItem #18\t\t\t\t\t\t135.00\t\t\t\t\t\t\t\t\t\tItem #19\t\t\t\t\t\t450.00\t\t\t\t\t\t\t\t\t\tItem #20\t\t\t\t\t\t450.00\t\t\t\t\t\t\t\t\t\tItem #21\t\t\t\t\t\t450.00\t\t\t\t\t\t\t\t\t\tTotal\t\t\t\t\t\t$3,510.00\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFor the alleged willful violations the Secretary recommended that the following penalties be\t\t\t\t\t\t\t\t\t\tassessed:\t\t\t\t\t\t\t\t\t\tItem No.\t\t\t\t\t\tProposed Penalty\t\t\t\t\t\t\t\t\t\tItem #1\t\t\t\t\t\t$310.00\t\t\t\t\t\t\t\t\t\tItem #2\t\t\t\t\t\t310.00\t\t\t\t\t\t\t\t\t\tItem #3\t\t\t\t\t\t405.00\t\t\t\t\t\t\t\t\t\tItem #4\t\t\t\t\t\t405.00\t\t\t\t\t\t\t\t\t\tItem #5\t\t\t\t\t\t405.00\t\t\t\t\t\t\t\t\t\tTotal\t\t\t\t\t\t$1835.00\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe total proposed penalty is $5,345.00.\t\t\t\t\t\t\t\t\t\tTHE FACTS\t\t\t\t\t\t\t\t\t\tThe respondent operates a small silk screen poster printing business at 1922 West\t\t\t\t\t\t\t\t\t\tBrandywine Street in the city of Philadelphia, Pennsylvania. The company has a total of 12\t\t\t\t\t\t\t\t\t\temployees and, as of March 31, 1973, had net assets of slightly more than $39,000. There was a\t\t\t\t\t\t\t\t\t\tnet profit of a little over $7,000 during its more recent tax year. The business is conducted in 3\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tbuildings in the 1900 block of West Brandywine Street. Two of the buildings are leased from a\t\t\t\t\t\t\t\t\t\tmember of the family who founded the business; the third building is leased from a non-related\t\t\t\t\t\t\t\t\t\tlandlord. In this building only the ground floor is occupied. The upper two floors are occupied by\t\t\t\t\t\t\t\t\t\ttenants of the owner of the building.\t\t\t\t\t\t\t\t\t\tTHE ISSUES\t\t\t\t\t\t\t\t\t\tThe Secretary averred in his complaint that the citation for failure to abate for willful\t\t\t\t\t\t\t\t\t\tviolations has become a final order on the basis of a contention that the respondent did not\t\t\t\t\t\t\t\t\t\tcontest the citations; that only the reasonableness of the penalties is in issue. Alpha denies this\t\t\t\t\t\t\t\t\t\tallegation.\t\t\t\t\t\t\t\t\t\tOn May 6, 1974, when the Notice of Proposed Penalty to which the citations were\t\t\t\t\t\t\t\t\t\tattached was received by Alpha, and before retaining counsel, Richard Golub, Alpha\u2019s chief\t\t\t\t\t\t\t\t\t\tofficial, dispatched the following letter to the Secretary.\t\t\t\t\t\t\t\t\t\t\u2018This letter constitutes notice of intention to contest your notification of penalties\t\t\t\t\t\t\t\t\t\tdated April 22, 1974 for the alleged violations of a willful nature in connection\t\t\t\t\t\t\t\t\t\twith the premises of Alpha Poster Service, Inc., such proposed penalties totaling\t\t\t\t\t\t\t\t\t\tthe sum of $5345.00.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018You have informed me that receipt of this notice initiates the appeal process and\t\t\t\t\t\t\t\t\t\tthat your people will send us the appropriate material necessary to continue the\t\t\t\t\t\t\t\t\t\tresolution of this matter.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is self-evident that this letter admits nothing and specifically mentions violations as\t\t\t\t\t\t\t\t\t\twell as penalties. In Secretary v. Philadelphia Coke Division, OSAHRC Docket No. 6448\u2013P\t\t\t\t\t\t\t\t\t\t(September 5, 1974), para. 18,572 CCH Employment Safety and Health Guide, a unanimous\t\t\t\t\t\t\t\t\t\tCommission concluded that a letter which said only:\t\t\t\t\t\t\t\t\t\t\u2018An extension of time to complete the necessary work for compliance is\t\t\t\t\t\t\t\t\t\trespectfully requested for the following items:\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\twas a notice of contest saying that\t\t\t\t\t\t\t\t\t\t\u2018The rule is that writings filed with complainant during this period (the 15-\t\t\t\t\t\t\t\t\t\tworking-day period prescribed in section 10(c)) are to be given a liberal\t\t\t\t\t\t\t\t\t\tinterpretation.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNo reference was made to violations, yet this document was held to be a notice of contest of all\t\t\t\t\t\t\t\t\t\tissues. Accordingly, I hold that Richard Golub\u2019s letter of May 6, 1974 was a timely notice of\t\t\t\t\t\t\t\t\t\tcontest of citation for failure to correct violations, not just the proposed penalties.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe same could be said for the citation for willful violations. However, there is a\t\t\t\t\t\t\t\t\t\tdistinction which must not be overlooked. The citation for alleged failure to correct relates to\t\t\t\t\t\t\t\t\t\tacts or omissions observed on February 20. No new citations were served. The citation for\t\t\t\t\t\t\t\t\t\twillful violation, on the other hand, alleges that there were 5 separate willful violations on April\t\t\t\t\t\t\t\t\t\t11, 1974. The citation was not issued until April 22, 1974. If the respondent\u2019s letter of May 6,\t\t\t\t\t\t\t\t\t\t1974 was a notice of contest, it was timely. For that reason the citation never became a final\t\t\t\t\t\t\t\t\t\torder leaving both the fact of violation and the penalty in issue. I so find.\t\t\t\t\t\t\t\t\t\tAt the conclusion of the hearing and after both parties had rested so much of citation\t\t\t\t\t\t\t\t\t\tnumber 1 dated April 22, 1974, which alleged the 5 alleged violations were willful was vacated\t\t\t\t\t\t\t\t\t\tsua sponte. Upon consideration of the record as a whole, I reaffirm this conclusion. The\t\t\t\t\t\t\t\t\t\tSecretary relies chiefly upon an assertion that Alpha has been previously cited for the same\t\t\t\t\t\t\t\t\t\talleged violations. This alone would not show that there was willfulness. There must be a\t\t\t\t\t\t\t\t\t\tconscious, intentional, deliberate, voluntary decision to disregard the statute and the regulations.\t\t\t\t\t\t\t\t\t\tSee F. X. Messina Construction Corporation v. Secretary of Labor, 505 F.2d 701, 702 (1st Cir.\t\t\t\t\t\t\t\t\t\t1974).\t\t\t\t\t\t\t\t\t\tCITATION FOR FAILURE TO ABATE\t\t\t\t\t\t\t\t\t\tThis citation was based upon allegations of violation contained in 12 separate items in a\t\t\t\t\t\t\t\t\t\tprevious citation dated March 7, 1974. The alleged violations were described as follows:\t\t\t\t\t\t\t\t\t\tItem No.\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t29 CFR 1910.23(b)(1)\t\t\t\t\t\tA wall opening in the following location, from which\t\t\t\t\t\t\t\t\t\tthere was a drop of more than four feet, was not guarded\t\t\t\t\t\t\t\t\t\tby one of the methods specified by this subparagraph:\t\t\t\t\t\t\t\t\t\ta)\t\t\t\t\t\tRear door opening of 2nd floor of 1919\t\t\t\t\t\t\t\t\t\tBrandywine Street.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t29 CFR 1910.23(d)(1)\t\t\t\t\t\tFlight of stairs, in the following location, was not\t\t\t\t\t\t\t\t\t\tequipped with standard railings, on the open sides, or\t\t\t\t\t\t\t\t\t\tstandard handrails on the enclosed sides:\t\t\t\t\t\t\t\t\t\ta) Front stairway from 2nd floor to 3rd floor of 1922 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t29 CFR 1910.23(a)(1)\t\t\t\t\t\tStairway floor opening, in the following location was\t\t\t\t\t\t\t\t\t\tnot guarded by standard railings on all open sides\t\t\t\t\t\t\t\t\t\t(except at the stairway entrance):\t\t\t\t\t\t\t\t\t\ta)\t\t\t\t\t\tRear stairway from 2nd to 3rd floors of 1922 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street\u2014an intermediate rail was not\t\t\t\t\t\t\t\t\t\tprovided\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t29 CFR 1910.24(f)\t\t\t\t\t\tFixed industrial stairs, in the following location, did not\t\t\t\t\t\t\t\t\t\thave nonslip finish on tread nosings:\t\t\t\t\t\t\t\t\t\ta)\t\t\t\t\t\tFront stairs from 2nd to 3rd floors of 1922\t\t\t\t\t\t\t\t\t\tBrandywine Street\u2014seupral tread noses were\t\t\t\t\t\t\t\t\t\tworn and slippery\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t29 CFR 1910.25(d)(1)(x)\t\t\t\t\t\tPortable wooden ladders, in the following location, were\t\t\t\t\t\t\t\t\t\tnoted to be defective and had not been withdrawn from\t\t\t\t\t\t\t\t\t\tservice and tagged or marked, \u2018Dangerous, Do Not\t\t\t\t\t\t\t\t\t\tUse\u2019:\t\t\t\t\t\t\t\t\t\ta)\t\t\t\t\t\tRear of 1920 Brandywine Street\u2014two portable\t\t\t\t\t\t\t\t\t\twooden ladders\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8\t\t\t\t\t\t29 CFR 1910.37(j)\t\t\t\t\t\tDifference in elevation at the following means of egress\t\t\t\t\t\t\t\t\t\twas not negotiated by stairs of ramp:\t\t\t\t\t\t\t\t\t\ta)\t\t\t\t\t\tExit from rear of 2nd floor at 1922 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street\u2014stairs or ramp not provided\t\t\t\t\t\t\t\t\t\tto ground level\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9\t\t\t\t\t\t29 CFR 1910.37(q)(1)\t\t\t\t\t\tExits, in the following location, were not marked by\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\treadily visible signs:\t\t\t\t\t\t\t\t\t\ta)\t\t\t\t\t\tAll exits in Buildings at 1919, 1920, and 1922\t\t\t\t\t\t\t\t\t\tW. Brandywine Street\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t14\t\t\t\t\t\t29 CFR 1910.106(e)(6)(ii)\t\t\t\t\t\tClass I liquids, in the following location, was dispensed\t\t\t\t\t\t\t\t\t\tinto containers for which no provision was made for\t\t\t\t\t\t\t\t\t\telectrically interconnecting the nozzle and the container:\t\t\t\t\t\t\t\t\t\ta)\t\t\t\t\t\tSolvent storage room on 1st floor of Building at\t\t\t\t\t\t\t\t\t\t1922 W. Brandywine Street\u2014xylene and lacquer\t\t\t\t\t\t\t\t\t\tthinner.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t18\t\t\t\t\t\t29 CFR 1910.219(e)(3)\t\t\t\t\t\tThe\t\t\t\t\t\tmechanical\t\t\t\t\t\tpower-transmission apparatus, belt\t\t\t\t\t\t\t\t\t\tdrive, of the following machinery, was not enclosed by\t\t\t\t\t\t\t\t\t\tguards:\t\t\t\t\t\t\t\t\t\ta) Paper cutter located on 1st floor of 1919 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t19\t\t\t\t\t\tNational\t\t\t\t\t\tElectric\t\t\t\t\t\tCode,\t\t\t\t\t\tLive parts of the following electrical equipment were\t\t\t\t\t\t\t\t\t\tNFPA 70\u201371, Art. 110\u2013\t\t\t\t\t\tnot guarded against accidental contact by approved\t\t\t\t\t\t\t\t\t\t17(a), as adopted by 29\t\t\t\t\t\tcabinets or other forms of approved enclosures, or by\t\t\t\t\t\t\t\t\t\tCFR 1910.309(a)\t\t\t\t\t\tany other method listed in this subparagraph:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\ta) Junction box on side of dryer on 2nd floor of 1919\t\t\t\t\t\t\t\t\t\tW.\t\t\t\t\t\tBrandywine\t\t\t\t\t\tStreet\u2014exposed\t\t\t\t\t\tconnections\t\t\t\t\t\t\t\t\t\tleading to conduit\t\t\t\t\t\t\t\t\t\tb) Light switch on wall of toilet room on 2nd floor of\t\t\t\t\t\t\t\t\t\t1919 W. Brandywine Street\t\t\t\t\t\t\t\t\t\tc) Bare wires on east wall of lounge area, first floor\t\t\t\t\t\t\t\t\t\tof 1920 W. Brandywine Street\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t20\t\t\t\t\t\tNational\t\t\t\t\t\tElectric\t\t\t\t\t\tCode,\t\t\t\t\t\tThe exposed noncurrent-carrying metal parts of the\t\t\t\t\t\t\t\t\t\tNFPA 70\u20131971, Art. 250\u2013\t\t\t\t\t\tfollowing cord and plug connected equipment, likely to\t\t\t\t\t\t\t\t\t\t45(d), as adopted by 29\t\t\t\t\t\tbecome energized, were not electrically grounded:\t\t\t\t\t\t\t\t\t\tCFR 1910.309(a)\t\t\t\t\t\ta) Water cooler on 2nd floor of 1919 W. Brandywine\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStreet\t\t\t\t\t\t\t\t\t\tb) Refrigerator in 1920 W. Brandywine Street\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNational\t\t\t\t\t\tElectric\t\t\t\t\t\tCode\t\t\t\t\t\tFlexible cords attached to the following equipment,\t\t\t\t\t\t\t\t\t\tNFPA 70\u20131971, Art. 400-\t\t\t\t\t\tcontained splice which was not of the approved type:\t\t\t\t\t\t\t\t\t\t5 as adopted by 29 CFR\t\t\t\t\t\ta) Extension cords from two fans, located on floor at\t\t\t\t\t\t\t\t\t\t1910.309(a)\t\t\t\t\t\trear of 1920 W. Brandywine Street\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tb) Cord from refrigerator at rear of 1920 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWillful Violations\t\t\t\t\t\t\t\t\t\tThe following allegations were related to items 1, 7, 11, 12 and 13 of the March 7\t\t\t\t\t\t\t\t\t\tcitation:\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t29 CFR 1910.22(a)(1)\t\t\t\t\t\tPlace of employment, in the following areas, was not\t\t\t\t\t\t\t\t\t\tkept clean and orderly, and in a sanitary condition:\t\t\t\t\t\t\t\t\t\ta) Stencil Cutting Room, 3rd floor of 1922 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street\u2014accumulation of paper\t\t\t\t\t\t\t\t\t\tb) Oil Tank Area at rear of 1st floor of 1922 W.\t\t\t\t\t\t\t\t\t\tBrandywine\t\t\t\t\t\tStreet\u2014wood\t\t\t\t\t\tand\t\t\t\t\t\tcardboard\t\t\t\t\t\t\t\t\t\taccumulation\t\t\t\t\t\t\t\t\t\t(Items 1(a) and (c) of March 7 citation)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t29 CFR 1910.36(d)(1)\t\t\t\t\t\tExits, in the following locations, were not maintained\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tfree from all obstructions or impediments to full instant\t\t\t\t\t\t\t\t\t\tuse:\t\t\t\t\t\t\t\t\t\ta) rear exit from 1st floor at 1922 W. Brandywine\t\t\t\t\t\t\t\t\t\tStreet\u2014obstructed by accumulation of trash\t\t\t\t\t\t\t\t\t\tb) west exit from 2nd floor at 1922 W. Brandywine\t\t\t\t\t\t\t\t\t\tStreet\u2014obstructed by accumulation of trash\t\t\t\t\t\t\t\t\t\t(Item 7(c) and (d) of March 7 citation)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t29 CFR\t\t\t\t\t\tThe quantity of combustible liquids located outside of\t\t\t\t\t\t\t\t\t\t1910.106(e)(2)(ii)(b)(2)\t\t\t\t\t\tan inside storage cabinet, in the following area,\t\t\t\t\t\t\t\t\t\texceeded 120 gallons:\t\t\t\t\t\t\t\t\t\ta) first floor of building at 1919 W. Brandywine\t\t\t\t\t\t\t\t\t\tStreet\t\t\t\t\t\t\t\t\t\t(Item 11 of March 7 citation)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t29 CFR\t\t\t\t\t\tFlammable\t\t\t\t\t\tand\t\t\t\t\t\tcombustible\t\t\t\t\t\tliquids\t\t\t\t\t\twere\t\t\t\t\t\tbeing\t\t\t\t\t\t\t\t\t\t1910.106(e)(2)(iv)(d)\t\t\t\t\t\ttransferred into containers without the use of safety\t\t\t\t\t\t\t\t\t\tcans or other approved methods, in the following\t\t\t\t\t\t\t\t\t\tlocation:\t\t\t\t\t\t\t\t\t\ta) Solvent Storage Room of building at 1922 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street\u2014xylene, lacquer thinner and\t\t\t\t\t\t\t\t\t\tmineral spirits\t\t\t\t\t\t\t\t\t\t(Item 12 of March 7 citation)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t29 CFR\t\t\t\t\t\tFlammable liquids, in the following locations, were not\t\t\t\t\t\t\t\t\t\t1910.106(e)(2)(iv)(a)\t\t\t\t\t\tkept in covered containers when not in use:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\ta) two Silk Screening Areas, 1st floor of 1920 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street\u2014xylene\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tb) Silk Screening Area, 2nd floor of 1919 W.\t\t\t\t\t\t\t\t\t\tBrandywine Street\u2014xylene\t\t\t\t\t\t\t\t\t\t(Item 13 of March 7 citation)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAlpha\u2019s chief officer, Richard Golub, did not dispute the allegation of fact in the\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tcitations. For that reason, the belated and unsolicited appearance of Area Director Sachkar for\t\t\t\t\t\t\t\t\t\tthe purpose of attacking Golub\u2019s credibility as a witness is of no significance. However, even\t\t\t\t\t\t\t\t\t\tthough Golub did not dispute the testimony of the Secretary\u2019s inspectors, Knox and Crenshaw, as\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Court: Did you call him [Sachkar].\t\t\t\t\t\t\t\t\t\tMr. Davis: No I didn\u2019t call him. [Tr. 249]\t\t\t\t\t\t\t\t\t\tMr. Sachkar: I came in here of my own volition\u2026[Tr. 250]\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tto what they observed with the naked eye, the evidence in behalf of the Secretary was of\t\t\t\t\t\t\t\t\t\tquestionable weight and probative value.\t\t\t\t\t\t\t\t\t\tThe Secretary, throughout the whole course of this proceeding from citation to trial, has\t\t\t\t\t\t\t\t\t\tappeared to be laboring under the misapprehension that accusation creates a presumption of guilt\t\t\t\t\t\t\t\t\t\tand that the allegations of a citation are presumed to establish a prima facie case which the\t\t\t\t\t\t\t\t\t\taccused employer must overcome. This is not the law. This burden of proof is upon the Secretary\t\t\t\t\t\t\t\t\t\t(Commission Rule 73(a)).\t\t\t\t\t\t\t\t\t\tThis case is another example of the Secretary\u2019s erroneous assumption that because the\t\t\t\t\t\t\t\t\t\tproceeding is governed by the Administrative Procedure Act he need not produce the best\t\t\t\t\t\t\t\t\t\tevidence. This is not so. The purpose of the APA was to free administrative hearings from the\t\t\t\t\t\t\t\t\t\tstrict rules of procedure and admissibility of evidence applicable in jury trials, but that does not\t\t\t\t\t\t\t\t\t\tmean that the burden of proof can be sustained without reliable, probative and relevant evidence.\t\t\t\t\t\t\t\t\t\tBefore the Administrative Procedure Act was enacted it was the rule in Federal\t\t\t\t\t\t\t\t\t\tAdministrative Proceedings that mere uncorroborated hearsay or rumor was not substantial\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tevidence. Hearsay may not be used as a basis for an order to support findings of an\t\t\t\t\t\t\t\t\t\tadministrative agency. Findings cannot be based upon hearsay alone. The declarant of proffered\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tadmissions against interest must be available for cross-examination.\t\t\t\t\t\t\t\t\t\tHearsay evidence is admissible in a hearing subject to the Administrative Procedure Act\t\t\t\t\t\t\t\t\t\tbut an Administrative Law Judge is empowered to exclude evidence which is not of the \u2018kind on\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\twhich responsible persons are accustomed to rely in serious affairs.\u2019 The ultimate test of\t\t\t\t\t\t\t\t\t\tadmissibility must be whether the proffered evidence is reliable, probative and relevant. Senator\t\t\t\t\t\t\t\t\t\tMcCarran explained on the floor of the Senate what this means. He said:\t\t\t\t\t\t\t\t\t\t\u2018You may go outside and get what would be secondary evidence, or hearsay; . . .\t\t\t\t\t\t\t\t\t\tbut when you write your decision it must be based upon probative evidence and\t\t\t\t\t\t\t\t\t\tnothing else. If in the formation of your decision you consider other than\t\t\t\t\t\t\t\t\t\tprobative evidence, your decision will be subject to being set aside by a court of\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\treview.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2 Consolidated Edison Co. v. N.L.R.B., 59 S.Ct. 206, 217 (1938).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3 Williamsport Oysters, Inc. v. Ewing, 174 F.2d 676, 691 (9th Cir. 1949).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4 Final Report of the Attorney General\u2019s Committee, page 50, Senate Document No. 8, 77th\t\t\t\t\t\t\t\t\t\tCong. 1st sess. 1941: NLRB v. Remington Rand, Inc., 94 F.2d 862 (2d Cir. 1938, cert. den. 304\t\t\t\t\t\t\t\t\t\tU.S. 576, 585 (1938).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5 Senate Document No. 248, 79th Cong., 2nd sess. 320 (1946).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe respondent admitted the violations as described in items 2, 3, 4, 5, 8, 9, 18, 19, 20\t\t\t\t\t\t\t\t\t\tand 21 of the citation for failure to abate. However, Golub said that the defective ladders\t\t\t\t\t\t\t\t\t\tdescribed in item 6 were in the building when they acquired it and that his employees neither\t\t\t\t\t\t\t\t\t\tneeded nor used them. Diligent inquiry by the Secretary\u2019s inspectors, Crenshaw and Knox,\t\t\t\t\t\t\t\t\t\twould have produced either a witness or other evidence which would have either verified this\t\t\t\t\t\t\t\t\t\tassertion or shown that it was false. Since the Secretary allowed this statement to stand\t\t\t\t\t\t\t\t\t\tunrebutted, the burden of proof was not met and item 6 must be vacated. Knox admitted that he\t\t\t\t\t\t\t\t\t\tdid not know whether the ladders were used.\t\t\t\t\t\t\t\t\t\tIn item 14, Alpha was charged with failing to electrically interconnect a nozzle to a\t\t\t\t\t\t\t\t\t\tcontainer where Class I liquids were being dispensed into containers. The liquids were said to be\t\t\t\t\t\t\t\t\t\txylene and lacquer thinner. Golub admitted that the containers were not grounded, however, the\t\t\t\t\t\t\t\t\t\tSecretary failed to adduce any proof that Class I liquids were present. Knox made no test of the\t\t\t\t\t\t\t\t\t\tcontents. He said that he relied upon labels on the cans and that one contained \u2018some type of\t\t\t\t\t\t\t\t\t\tcleaning solvent\u2019 and another contained \u2018some type of lacquer.\u2019 Mrs. Crenshaw, who testified\t\t\t\t\t\t\t\t\t\tthat she has a degree in chemistry, said she also relied solely upon labels, what she was told by a\t\t\t\t\t\t\t\t\t\tchemist from the suppliers of the liquids, and what she read in a reference book. It is elemental\t\t\t\t\t\t\t\t\t\tthat the components of any compound can be ascertained by chemical analysis. This was not\t\t\t\t\t\t\t\t\t\tdone. However, if either Knox or Crenshaw had produced the chemist from the supplier or one\t\t\t\t\t\t\t\t\t\tor more of Alpha\u2019s employees as a witness, it is possible that the identity of the liquids in the\t\t\t\t\t\t\t\t\t\tcontainers might have been established. If, after interrogation of these witnesses, it was not clear\t\t\t\t\t\t\t\t\t\tthat xylene or lacquer thinner was in the containers, samples should have been secured for\t\t\t\t\t\t\t\t\t\ttesting. Any individual with no more than a grammar school education could have done what\t\t\t\t\t\t\t\t\t\tKnox and Crenshaw did. They failed to identify the contents of the containers. Item 14 and the\t\t\t\t\t\t\t\t\t\tproposed penalty must be vacated.\t\t\t\t\t\t\t\t\t\tThe Secretary\u2019s witness, Allendorf, in contrast to the Secretary\u2019s other witnesses, was a\t\t\t\t\t\t\t\t\t\tvery helpful witness. He explained lucidly and in great detail the methods the Secretary requires\t\t\t\t\t\t\t\t\t\tin determining the amount of a proposed penalty. He also revealed that he very carefully\t\t\t\t\t\t\t\t\t\tconsidered the statutory mandate that the amount of penalty should be based upon size, gravity,\t\t\t\t\t\t\t\t\t\tgood faith and history. If it were not for the fact that the Secretary\u2019s procedures, which are\t\t\t\t\t\t\t\t\t\tbinding upon Allendorf, bring about inequities (such as a proposed penalty of only $135 for an\t\t\t\t\t\t\t\t\t\tunguarded belt on a piece of machinery and $450 for an improper splice on an electric cord), his\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\trecommendation would be accepted without question. It is not disputed that Alpha did nothing to\t\t\t\t\t\t\t\t\t\tabate the violations from February 20 until after the citation was served on March 7. Golub says\t\t\t\t\t\t\t\t\t\tthat all deficiencies were corrected by mid May pursuant to orders placed in mid March. This\t\t\t\t\t\t\t\t\t\testablishes failure to abate as a fact, but no proof was adduced to justify the imposition of\t\t\t\t\t\t\t\t\t\tpenalties as much as 10 times the usual penalty.\t\t\t\t\t\t\t\t\t\tThe respondent is not entitled to any special consideration for good faith, but when size\t\t\t\t\t\t\t\t\t\tand gravity are considered it is clear that a penalty of $45 each for items 2, 3, 4, 5, 8, 9, 18, 19,\t\t\t\t\t\t\t\t\t\t20 and 21 for $450 for failure to abate is appropriate.\t\t\t\t\t\t\t\t\t\tWillful Violations\t\t\t\t\t\t\t\t\t\tThe sole basis for compliance officer Knox\u2019s recommendation that a citation for willful\t\t\t\t\t\t\t\t\t\tviolation be issued was that Alpha had knowledge of the requirements of sections 1910.22(a)(1),\t\t\t\t\t\t\t\t\t\t1910.36(d)(1), 1910.106(e)(2)(ii)(b)(2), 1910.106(e)(2)(iv)(d) and 1910.106(e)(2)(iv)(a) from the\t\t\t\t\t\t\t\t\t\tcitations issued after the Crenshaw inspection on February 20. As had already been noted\t\t\t\t\t\t\t\t\t\t(Messina Construction Corporation v. Secretary, supra), mere knowledge is not enough to show\t\t\t\t\t\t\t\t\t\twillfulness. However, the 5 items remain in issue as simple allegations of a non-serious violation\t\t\t\t\t\t\t\t\t\tof the Act.\t\t\t\t\t\t\t\t\t\tGolub did not deny knowledge of the requirements of the OSHA standards. According to\t\t\t\t\t\t\t\t\t\thim, it took some time for him to arrange for carpenters and other craftsmen to correct some of\t\t\t\t\t\t\t\t\t\tthe violations. This is understandable, but it is also clear that until Golub received notice of the\t\t\t\t\t\t\t\t\t\tcitation for willful violation dated April 22, 1974, proposing a penalty of $3,510, he had done\t\t\t\t\t\t\t\t\t\tnothing. He attempted to justify his procrastination on a trash hauler\u2019s strike which had caused\t\t\t\t\t\t\t\t\t\tan unusually large accumulation of waste matter. It is quite plain that the prospect of paying a\t\t\t\t\t\t\t\t\t\tsubstantial penalty animated him much more rapidly than the hazards to his employees which\t\t\t\t\t\t\t\t\t\thad been called to his attention three weeks earlier.\t\t\t\t\t\t\t\t\t\tIt is common knowledge that the floors in this type of business cannot be kept free of\t\t\t\t\t\t\t\t\t\tdebris, but the photographs in evidence reveal that housekeeping was generally lax and untidy.\t\t\t\t\t\t\t\t\t\tFor example, how would the trash strike have prevented Alpha from lifting the wood and\t\t\t\t\t\t\t\t\t\tcardboard off the fuel tank? What would have prevented Alpha from moving the trash\t\t\t\t\t\t\t\t\t\tobstructing the exits? It could have been moved outside. Conceding that there was a strike and\t\t\t\t\t\t\t\t\t\tthat this would have violated city ordinances, it is extremely unlikely that the ordinance would be\t\t\t\t\t\t\t\t\t\tstrictly enforced under those circumstances. Even if it were enforced, the risk of being penalized\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tmonetarily for the commission of a misdemeanor is insignificant when compared to the value of\t\t\t\t\t\t\t\t\t\tthe lives and safety of employees or the lose of a business due to a fire. The evidence adduced in\t\t\t\t\t\t\t\t\t\tbehalf of the Secretary conclusively supports a finding and conclusion that Alpha violated the\t\t\t\t\t\t\t\t\t\tstandards as alleged in items 1 and 2 of the citation for willful violation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe other 3 items must be vacated. In item 3, an essential element of proof is that there\t\t\t\t\t\t\t\t\t\twere at least 120 gallons of liquid in the containers. On cross-examination Knox was asked:\t\t\t\t\t\t\t\t\t\t\u2018Q. Could it have been less than 120 gallons?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. Yes, it could have been less.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tQ. How do you know if it was more than 120 gallons?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA. No, I do not know.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWith regard to items 4 and 5, an essential element of proof is that there were flammable\t\t\t\t\t\t\t\t\t\tor combustible liquids in the containers. Considering Knox\u2019s testimony in its most favorable\t\t\t\t\t\t\t\t\t\tlight, he only knew what was printed or written upon the labels on the containers. He did not\t\t\t\t\t\t\t\t\t\tknow what was in them. His only attempt to identify them was by a question to an employee\t\t\t\t\t\t\t\t\t\twho used the liquid to clean silk screens. All she knew was that the liquid came from a storage\t\t\t\t\t\t\t\t\t\troom. In view of the fact that Golub did not take issue with these allegations when testifying, it\t\t\t\t\t\t\t\t\t\tmight be inferred that the particular liquids mentioned were present, but the burden of proof\t\t\t\t\t\t\t\t\t\trequires the moving party to adduce evidence which is reliable, probative and relevant. Mere\t\t\t\t\t\t\t\t\t\tuncorroborated hearsay is not substantial evidence. Consolidated Edison Company v. NLRB\t\t\t\t\t\t\t\t\t\t(supra). An administrative law decision \u2018must be based upon probative evidence and nothing\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\telse.\u2019 The Secretary has not adduced probative evidence to support the allegations of items 3, 4\t\t\t\t\t\t\t\t\t\tand 5 of the willful citation.\t\t\t\t\t\t\t\t\t\tHaving been impressed with the witness Allendorf\u2019s evaluation on the four elements to\t\t\t\t\t\t\t\t\t\tbe considered in determining a penalty specified by the Act, I accept his conclusion that the sum\t\t\t\t\t\t\t\t\t\tof $115 each for a non-serious violation as described in items 1 and 2 is appropriate.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tIt is accordingly hereby ordered that:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6 Senator McCarran, Senate Doc. No. 248, 79th Cong., 2d sess. 320 (1946).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1. Items 4 and 14 and the proposed penalties of $135 and $450 respectively for failure to\t\t\t\t\t\t\t\t\t\tcorrect violations be vacated.\t\t\t\t\t\t\t\t\t\t2. Items 2, 3, 4, 5, 8, 14, 18, 19, 20 and 21 of the citation dated April 22, 1974 for failure\t\t\t\t\t\t\t\t\t\tto correct violations be affirmed and that a penalty of $45.00 be assessed for each violation.\t\t\t\t\t\t\t\t\t\t3. Items 3, 4 and 5 of the citation for willful violation and the proposed penalties thereon\t\t\t\t\t\t\t\t\t\tof $450 each be vacated.\t\t\t\t\t\t\t\t\t\t4. So much of the citation of April 22, 1974, as describes items 1, and 2 thereof as willful\t\t\t\t\t\t\t\t\t\tbe vacated; that so much of the allegations of the complaint as allege a non-serious violation as\t\t\t\t\t\t\t\t\t\tdescribed in items 1 and 2 be affirmed; and that a penalty of $115 each be assessed for these\t\t\t\t\t\t\t\t\t\tviolations.\t\t\t\t\t\t\t\t\t\t5. That Alpha Poster Service, Inc. shall pay a total sum of $680 to the Secretary as a\t\t\t\t\t\t\t\t\t\tpenalty for the violations.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBEN D. WORCESTER\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t\t\t\t\t\t\t\tDated: MAY 15, 1975\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tHyattsville, Maryland\t\t\t”