“Docket No. 88-2012 SECRETARY OF LABOR.Complaint,v.LOOMIS CABINET COMPANY,Respondent.OSHRC DocketNo. 88-2012\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 DECISIONBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 The Secretary of Labor (\”the Secretary\”) through theOccupational safety and Health Administration (\”OSHA:) issued to Loomis CabinetCompany (\”Loomis\”) a notification of failure to abate numerous violations of theOccupational Safety and Health Act, 29 U.S.C. ?? 651-678 (\”the Act\”), as wellas citations for repeat and other-than-serious violations of the Act.[[1]]\u00a0 TheSecretary proposed penalties amounting to $43,900.\u00a0 Loomis stipulated to theexistence of the violations.\u00a0 However, Loomis contended that it was improperly citedbecause it was not an employer within the meaning of section 3(5) of the Act.[[2]] \u00a0At the hearing, Loomis claimed that the persons exposed to the violations were formeremployees of Loomis who had become partners in the Eastview Cabinet Company(\”Eastview\”), with which Loomis had a contractual relationship.[[3]] \u00a0Review Commission Administrative Law Judge Irving Sommer found that no partnership existedand that the alleged partners were Loomis employees and affirmed both the citations andthe proposed penalty.\u00a0 On review, Loomis renews the argument that the workers atissue were not employees of Loomis, and that the penalty assessed by the judge was notappropriate.\u00a0 We conclude that an employment relationship did in fact exist betweenLoomis and the workers at issue, and we affirm the assessed penalty.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0I. Background \u00a0\u00a0 On January 5, 1988, OSHA inspected the Loomis Cabinet workshop located in North Highlands, California.[[4]]\u00a0 On March 1, 1988, OSHA issued one citation alleging nine serious violations, and a second citation alleging nine other-than-serious violations, with abatement dates ranging from March 3 through March 31, 1988.\u00a0 These citations were not contested. \u00a0\u00a0 Loomis represents that on March 1, the day the citation was issued, its employees stopped working for Loomis by forming the Eastview Cabinet Company partnership, which later entered into a contract to manufacture cabinets exclusively for Loomis.[[5]]\u00a0 Michael Loomis, the sole owner of the Loomis Cabinet Company, testified that the\u00a0 partnership was formed so that Loomis and the workers \”could make more money\” and \”wouldn’t have to be held hostage by the [workmen’s compensation insurance] and the other restraints of government agencies.[[6]] \u00a0 The partnership contract, which was not formalized until September 1, 1988, provided that the members of Eastview would manufacture wood cabinets under the direction of Loomis Cabinet in exchange for 75 percent of the net profit from the cabinets’ sale.[[7]] \u00a0\u00a0\u00a0 On or about July 1, 1988, OSHA attempted a second inspection at Loomis’ place of business.\u00a0 At first Loomis objected and refused entry on the grounds that it had no employees and was therefore not subject to OSHA jurisdiction.\u00a0 However, it later consented to the inspection.\u00a0 Following the inspection, OSHA issued a Notification of Failure to Abate Alleged Violations, a citation for repeat violations, and a citation for an other-than-serious violation.\u00a0 Loomis contested the citations by letter, dated August 24, 1988, alleging that it was not an employer. \u00a0\u00a0\u00a0 On October 1, 1988, Loomis and Eastview further refined their agreement in a \”Management Services Contract and Contract to Provide Manufacturing Services.\”\u00a0 According to this agreement, Loomis conducts all contract negotiations with suppliers and customer, provides the designs and specifications for the cabinets, schedules the work with the customers, assists the Eastview Management Committee in supervision, manufacture, installation, and quality control, and performs all accounting, administrative, and financial services.\u00a0 Loomis also provides Eastview with tools, tool maintenance, the shop itself, and all materials and supplies. In return, 75 percent of Loomis’ profits go to Eastview, while the remaining 25 percent stays with Loomis.\u00a0 The profits destined for Eastview are then divided again among the partners, based according to the partners’ respective skill level, as determined by the Eastview Management Committee.[[8]] \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 II Judge’s Decision \u00a0\u00a0\u00a0 On August 16, 1989, the judge issued a decision affirming the citations in this case.\u00a0 Judge Sommer applied the \”economic realities test,\” first articulated and applied by the Commission in Griffin & Brand of McAllen, Inc., 6 BNA OSHC 1702, 1703, 1978 CCH OSHD 22,829, pp. 27,600-01 (No. 14801, 1978), and more recently in Van Buren-Madawaska Corp., 13 BNA OSHC 2157, 2158, 1989\u00a0 CCH OSHD \u00a0\u00a0\u00a0 28,504, P. 37,780 (No. 87-214, CONSOLIDATED, 1989).\u00a0 The judge found that the record establishes that \”there is no partnership among Eastview ‘partners’ nor between Loomis Cabinet Company and its employees,\” and that \”there existed an employer-employee relationship between Eastview and Loomis despite its partnership form.\”\u00a0 Accordingly, the judge held that OSHA did have jurisdiction over Loomis’ workplace.\u00a0 The judge noted that Loomis had \”essentially put all its eggs in one basket in arguing that OSHA was without jurisdiction\” because \”Loomis otherwise made minimal attempt[s] to demonstrate that it should prevail on the basis of any affirmative defenses.\”\u00a0 Judge Sommer also noted that \”[s]ince Loomis submitted little or no evidence, many of the violations must be affirmed on the basis of Loomis’ own admissions as outlined in the [s]tipulation…and the record evidence.\”\u00a0 The judge held that the record established that Loomis violated all the cited standards \”by a preponderance of the evidence.\” \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 III Discussion\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A. Whether the workers are employees of Loomis \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 i. \u00a0\u00a0 To determine whether an employment relationship exists, the Commission has applied an \”economic realities test.\”\u00a0 The test emphasizes the substance over the form of the relationship between the alleged employer and the workers.\u00a0 The Commission has considered a number of factors when making such a determination, including the following: \u00a0\u00a0\u00a0 1) Whom do the workers consider their employer? \u00a0\u00a0\u00a0 2) Who pays the workers’ wages? \u00a0\u00a0\u00a0 3) Who has the responsibility to control the workers? \u00a0\u00a0\u00a0 4) Does the alleged employer have the power to control the workers? \u00a0\u00a0\u00a0 5) Does the alleged employer have the power to fire, hire, or modify the employment condition of the workers: \u00a0\u00a0\u00a0 6) Does the workers’ ability to increase their income depend on efficiency rather than initiative, judgment, and foresight? \u00a0\u00a0\u00a0 7) How are the workers’ wages established? \u00a0\u00a0\u00a0 Van Buren-Madawaska, 13 BNA OSHC at 2158, 1989 CCH OSHD at p. 37,780 (quoting Griffin & Brand, BNA OSHC at 1703, 1978 CCH OSHD at pp. 27,600-01). The Secretary has directed our attention to Nationwide Mutual Insurance Co. v. Darden, 60 U.S.L.W. 4242, 4243 (U.S. March 24, 1992).\u00a0 In Darden, the Supreme Court held that the term \”employee,\” in a federal statute, should be interpreted under common law principles unless Congress clearly indicated otherwise.\u00a0 The Court quoted the following language from Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), discussing the common law interpretation of what constitutes an \”employee\” where the meaning of the term under the Copyright Act was issue: \u00a0\u00a0\u00a0 In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished.\u00a0 Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. 490 U.S. at 751-752 (footnotes omitted). \u00a0\u00a0\u00a0 We note that many of the factors in the Commission’s economic realities test appear in the Darden test as well.\u00a0 In deterring whether there is an employment relationship for purposes of the Act, the Commission has primarily relied upon its determination of \”who has control over the work environment such that abatement of hazards can be obtained.\” Van Buren-Madawaska, 13 BNA OSHC at 2159, 1989 CCH OSHD at p. 37,781 (quoting MLB Indus., 12 BNA OSHC 1525, 1527, 1984-85 CCH OSHD 27,408 at p. 35,510 (No. 83-231, 1985). In Darden, the Supreme Court primarily relies upon \”the hiring party’s right to control the manner and means by which the product is accomplished.\”\u00a0 Darden, 60 U.S.L.W. at 4243 (quoting Reid, 490 U.S. at 751).\u00a0 Thus, the inquiry central to both tests is the question of whether the alleged employer controls the workplace.[[9]] \u00a0\u00a0 Loomis argues that the responsibility of controlling the workers had passed to the workers themselves or to Mr. Do, the chief partner.\u00a0 However, as noted above, Loomis conducts all contract negotiations with suppliers and customers, provides the designs and specifications for the cabinets, and schedules the work with the customers.\u00a0 Loomis also controls pricing, choice of materials, and marketing. \u00a0 In addition, it provides accounting, administrative, and financial services. \u00a0 In contrast, the workers provided only their labor.\u00a0 Eastview did no advertising or soliciting, and made minimal effort to gain outside contracts. The Eastview partners worked exclusively for Loomis and were not allowed to work for other cabinet shops. \u00a0\u00a0 Moreover, Loomis exerted considerable control over the workshop with regard to abatement of hazardous conditions.\u00a0 Loomis owned all the equipment in the shop.\u00a0 Abatement of almost all the violations alleged in the citations would have involved either an adjustment to a machine owned by Loomis, the wearing of personal protective equipment to avoid a hazard on a machine owned by Loomis, or the modification of some other condition within Loomis’ control. \u00a0\u00a0 The evidence further demonstrated the involvement of Mr. Loomis in hiring and firing the workers.\u00a0 The testimony established that \”nine times out of ten,\” the partnership gets new people when the current workers bring in acquaintances.\u00a0 However, if the workers do not know anybody to fill a particular job position, they ask Mr. Loomis to put an ad in the paper.\u00a0 Mr. LOOMIS handles the phone calls and conducts \”a screening interview and…narrow[s] it down for them.\”\u00a0 After Mr. Loomis’ screening, the partners interview the potential workers themselves.\u00a0 Mr. Do testified that Mr. Loomis sometimes told him when to hire new people to complete a job.\u00a0 Mr. Loomis testified that he would tell Mr. Do. if something happened that warranted firing an employee. \u00a0\u00a0 Loomis retained the power to unilaterally change conditions in the workshop.\u00a0 Mr. Loomis testified that he purchased a new lacquer spray machine for the workers to use.\u00a0 Although the workers did not like using the machine because it slowed them down, Mr. Loomis stated that he told the workers that they had to use the machine to make their product more competitive.\u00a0 Mr. Loomis also purchased a wide belt sander.\u00a0 He testified that the employees did not argue over its use because \”it made everybody more one.\”\u00a0 In addition, Mr. Loomis recommended workloads and encouraged the workers to work more hours in order to meet production goals. \u00a0\u00a0 Also relevant in determining whether an employment relationship exists is the way in which the workers’ wages were established.\u00a0 Mr. Loomis devised the partner level system of payment, which was \”administered by his mother who is the bookkeeper for both Loomis and Eastview.\”[[10]]\u00a0 Mr. Loomis \”deducts all rent, insurance payments and then issues Eastview their allotment\” for distribution to the partners according to the partner level plan.\u00a0 Although it could be argued that Mr. Loomis merely administered a pay scheme set up by the partnership, the only change in the way the workers are paid under the partnership is that they now vote on each other’s increases. \u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ii. \u00a0\u00a0 Based on our consideration of these factors, we conclude that the workers in question were employees of Loomis, and not merely partners in a separate business entity that has an independent contractual relationship with Loomis.\u00a0 Loomis argues that it ceded to the partners of Eastview all the powers and responsibilities that made them employees of Loomis.\u00a0 However, we conclude that the record shows that Loomis controlled the cited workplace and the workers there.\u00a0 It is Loomis that conducted contract negotiations with suppliers and customer, provided the designs and specifications of the cabinets, scheduled the work with the customers, and controlled the pricing, choice of materials, and marketing.\u00a0 Loomis owned the workshop and all the equipment, and made unilateral decisions about the purchase of new equipment.\u00a0 Mr. Loomis participated in hiring and firing workers and drafted the partnership agreement. \u00a0 Loomis was also responsible for all accounting, administrative, and financial services.\u00a0 All of these factors, taken together, support our finding that the Loomis Cabinet Company was an employer within the meaning of the Act. \u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 B. Penalty \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 i. \u00a0\u00a0 In determining an appropriate penalty, in accordance with section 17(j) of the Act, 29 U.S.C. ? 666(j), we consider the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.\u00a0 Loomis’ size, the gravity of the violations, and its history of previous violations are not in dispute.\u00a0 Loomis is a small company, but it has been cited for repeated violations of the Act.\u00a0 Loomis failed to abate its violations of 15 standards, (see note 1, supra), including the failure to guard such equipment as power saws and belt sanders, and the workers’ failure to wear protective eye equipment.\u00a0 Its failure to abate these violations could result in serious bodily harm to the workers.\u00a0 At issue is whether Loomis exhibited good faith. \u00a0\u00a0\u00a0 Loomis argues that it believed in good faith that it was no longer subject to OSHA jurisdiction.\u00a0 Loomis also claims that OSHA’s penalty criteria does \”not take into account the legal, economic, and practical realities of [Loomis’] business.\”\u00a0 Loomis argues that the penalties themselves were not appropriate because the worker’s \”own experience, common sense, desire to avoid injury, and business judgment allowed them to determine ‘reasonably necessary or appropriate’ safety standards for themselves, as such are contemplated by… the Act.\”\u00a0 Loomis claims that it was improperly cited because its workers have \”15 years experience in the cabinet manufacture business\” and that \”Complainant’s inspectors had no such experience nor any appreciation or understanding of the economic and practical realities of the cabinet manufacture business\” and that the inspectors \”had no experience with the tools and equipment used in the business.\”\u00a0 Loomis further argues that its workers\” \”freedom of choice in these matters should be respected by OSHA.\” \u00a0\u00a0\u00a0 Loomis also argues that \”Complainant’s standards are not necessarily correct and fair just because they are Complainant’s standards are not necessarily correct and fair just because they are Complainant’s; Respondent and other reasonable experts can differ as to reasonable and proper standards for workplace safety in a production cabinet shop.\”\u00a0 Loomis claims that its ‘contempt’ was not for true workplace safety, but for the paternalistic, arrogant, and self-righteous approach which Complainant has taken in imposing its standards in this matter….\” \u00a0\u00a0\u00a0 The Secretary challenges Loomis’ good faith argument.\u00a0 The Secretary argues that \”[t]here is an obvious difference between a good faith belief that your operations are safe and a good faith belief that you have cleverly avoided the reach of the law by forming paper business entities.\”\u00a0 The Secretary further argues that Mr. Loomis did not exhibit good faith because he \”was very candid in expressing his contempt for the requirements for safety devices.\”\u00a0 The Secretary relies on Mr. Loomis’ testimony that if the employees wanted safety improvements made to the radial arm saw, he would make the employees pay for it.\u00a0 In addition, she notes that when Mr. Loomis was asked whether the workers have safety meetings, he replied, \”No, it’s dumb….\”\u00a0 The Secretary also points to Mr. Loomis’ testimony of safety practices among cabinet makers, which he described as follows: \u00a0\u00a0\u00a0 A. All the shops are set up exactly like mine.\u00a0 They hear the OSHA guy comes in, what happens, they stall the guy in the office and the foreman goes out there and tells everybody, put all of the guards on.\u00a0 And the guy comes out and inspects, he leaves, everybody rips everything off and sticks in a safe place so the next time he comes in.\u00a0 See, it’s a joke. \u00a0\u00a0\u00a0 Q. Is this primarily for the table saws? \u00a0\u00a0\u00a0 A. Yeah.\u00a0 Basically, the table saws.\u00a0 That’s the biggest thing.\u00a0 Maybe the safeties on the nail GU, but — \u00a0\u00a0\u00a0 Q. Okay. \u00a0\u00a0\u00a0 A. And they probably all reach for the bin where there’s, you know, underneath this dusty table somewhere where the safety glasses are.\u00a0 Everybody’s walking around with all this dust all over their lenses. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ii. \u00a0\u00a0 The test of good faith is an objective one. i.e. was the employer’s belief concerning a factual matter or concerning the interpretation of a standard reasonable under the circumstances.\u00a0 Mel Jarvis Constr. Co., Inc 10 BNA OSHC 1052, 1053 (No. 77-2100, 1981).\u00a0 Under these circumstances, we cannot say that Loomis’ beliefs regarding its duty to comply with the Act were reasonable.\u00a0 Its argument, that it did not need to comply with the standards because its workers were experienced, has no merit.\u00a0 \”[E]mployers are required to provide to all their employees, experienced and inexperienced alike, the protection that occupational safety and health standards are designed to accord to them.\”\u00a0 C. Kaufman Inc., 6 BNA OSHC 1295, 1299, 1977-78 CCH OSHD 22,481, p. 27,101 (No. 14249, 1978).\u00a0 Nor can Loomis choose not to follow the Secretary’s standards because it \”differ[s] as to reasonable and proper standards for workplace safety in a production cabinet shop.\”\u00a0 This contention only challenges the wisdom of the standards.\u00a0 It is well settled that the Commission lacks the power to invalidate a standard on such a ground.\u00a0 Van Raalte Co., Inc.,\u00a0 4 BNA OSHC 1151, 1152, 1975-76 CCH OSHD 20,633, p. 24,698 (No. 5007, 1976).\u00a0 As long as a standard is within the Secretary’s granted power, issued pursuant to proper procedure, and reasonable, we cannot question it except for unenforceable vagueness.\u00a0 E.g., The Budd Co., 1 BNA OSHC 1548, 1551, 1973-74 CCH OSHD 17,387, p. 21,916 (Nos. 199 & 215, 1974), aff’d on other grounds, 513 F.2d 201 (3d Cir. 1975).\u00a0 Loomis’ failure to abate the violations cited in March 1987 in the belief that the partnership agreement put it out of the reach of the Act also demonstrates something less than good faith.\u00a0 Our impression of Loomis’ attitude is reinforced by its arguments, criticizing, inter alia, the \”paternalistic, arrogant, and self-righteous approach which Complainant has taken in imposing its standards in this matter….\” \u00a0\u00a0\u00a0 We therefore conclude that Loomis’ size, its history of previous violations, the gravity of the violations and failures to abate at issue here, and its lack of good faith do not warrant any reduction in the $43,900 penalty proposed by the Secretary. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 IV. Order \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Accordingly, we find that the workers in question\u00a0 were employees of Loomis under the Act.\u00a0 We assess a penalty of $43,900 for the citations and instances of failure to abate set forth in note 1. supra. Edwin G. Foulke, Jr. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Chairman Donald G. Wiseman \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Commissioner Velma Montoya \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Commissioner Dated:\u00a0 May 20, 1992 \u00a0 IN THE MATTER OF: ELIZABETH DOLE \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 SECRETARY OF LABOR, Complainant, v. LOOMIS CABINET COMPANY, Respondent. Docket No. 88-2012 APPEARANCES: \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 LESLIE M. CAMPBELL, ESQUIRE \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 U.S. Department of Labor \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Office of the Solicitor \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 P.O. Box 3495 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 San Francisco, California\u00a0 94119-3495 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 For the Complainant, \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 DECISION AND ORDER SOMMER, JUDGE \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 PROCEDURAL BACKGROUND \u00a0\u00a0\u00a0\u00a0\u00a0 This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. section 651, et seq., :the Act\”) to review citations issued by the Secretary of Labor pursuant to section 9(a) of the Act, and the proposed assessment of penalties therein issued, pursuant to section 10(a) of the Act. \u00a0\u00a0\u00a0 This case involves citations resulting from a follow-up inspection of the Loomis Cabinet Company’s (hereinafter \”Loomis\”) business.\u00a0 Mr. Angel Diaz, an Occupational Safety and Health Administration Compliance Officer (hereinafter \”OSHCO\”) conducted the original inspection on January 6, 1988.\u00a0 Another OSHCO, Ms. Donna Karr, attempted to conduct a follow-up inspection in June, 1988, but was denied entrance on the basis of lack of jurisdiction. \u00a0\u00a0\u00a0 Loomis believed that OSHA was without jurisdiction because it had no employees due to a reorganization of its business.\u00a0 Before March, 1988 (the abatement date) Mr. Loomis, the sole proprietor of Loomis Cabinet Company had entered into a partnership agreement with his employees.\u00a0 The agreement was dated March 1, 1988, and formed a partnership, known as Eastview Cabinet Company (hereinafter \”Eastview\”).\u00a0 Thus, under this agreement , all prior Loomis employees became Eastview partners.\u00a0 (Ex. J-12, Stipulation No. 4).\u00a0 The U.S. Bankruptcy Court of the Eastern District of California confirmed the contractual agreement between Mr. Loomis and Eastview on August 8, 1988.\u00a0 (R-2, pg. 6).\u00a0 Before that confirmation however, on July 6, 1988, Ms. Karr returned with Mr.\u00a0 Diaz and a search warrant to conduct the follow-up inspection.\u00a0 (Testimony of Ms. Karr, Tr. 36). \u00a0\u00a0\u00a0 As a result of that follow-up inspection, Loomis was issued one citation for repeat violations and a Notification for Failure to Abate (hereinafter FTA), and a second citation for other than serious violations. REPEAT VIOLATIONS\u00a0 \u00a0\u00a0\u00a0 The complaint alleges concerning Citation No. 1, Item 1 that Loomis violated 29 CFR section 1910.22 (a) (1) in that places of employment were not kept clean, orderly, or in a sanitary condition.\u00a0 The secretary alleged that Loomis violated 1910.22 (a) (1) because the work area outside the back door of the shop in the Holz Trim Saw Area was cluttered with pieces of lumber, piles of excess lumber and saw dust, and loose electrical cords.\u00a0 A proposed penalty of $1,000 was assessed. \u00a0\u00a0\u00a0 The complaint alleges concerning Citation Number 1, Item 2(a) that Loomis violated 29 CFR 1910.305 (b) (2) in that pull boxes, junction boxes and fittings were not provided with covers approved for the purpose.\u00a0 The employees were allegedly exposed to a hazard of burns or smoke inhalation.\u00a0 A proposed penalty of $400 was assessed. OTHER THAN SERIOUS VIOLATION \u00a0\u00a0\u00a0 The complaint alleges concerning Citation Number 2, Item 1 that Loomis violated 29 CFR 1903.16(a) in that Loomis did not immediately post citations, or unedited copies thereof at the worksite in place readily observable by all affected employees.\u00a0 A proposed penalty of $500 was assessed. FAILURE TO ABATE \u00a0\u00a0 As a result of the original inspection on January 5, 1988, Loomis was issued two citations.\u00a0 Loomis did not contest these citations and thus they became final orders of the Commission.\u00a0 (Tr. 50; Ex. J-12, No. 3).\u00a0 The complaint alleged that Loomis failed to abate these citations by July 6, 1988, the date of the re-inspection. \u00a0 The previous citations contained 9 items each and alleged numerous violations as listed in the addendum of this decision.\u00a0 A total proposed additional penalty for these items of $42,000 was assessed. \u00a0\u00a0\u00a0 Loomis filed a timely notice of contest placing in issue the above noted citations.\u00a0 Pleadings were filed and there was some discovery.\u00a0 Respondent then filed a Motion for Dismissal of the Complaint or Severance of Jurisdictional Issue, and Change of Venue of\u00a0 hearing; both were denied as without legal justification and untimely, respectively.\u00a0 Respondent later filed a Petition for Discretionary Review, which the Commission construed as a Petition for Interlocutory Review and denied.\u00a0 A hearing was held on April 24, 1989, in San Francisco, California.\u00a0 Post-hearing briefs have been filed and considered. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 DECISION \u00a0\u00a0\u00a0 Loomis was engaged in the manufacture of wooden cabinets. \u00a0 Loomis maintains its principal place of business at 6915 30th Street, North Highlands, California 95660.\u00a0 The complaint alleged that Loomis employed approximately 13 employees in its business activities.\u00a0 Loomis admits that it utilizes goods, equipment and materials shipped from outside the State of California and is engaged in a business affecting commerce.\u00a0 However, Loomis challenges OSHA jurisdiction over its workplace because it claims to have no employees. \u00a0\u00a0\u00a0 In large part, Loomis does not contest the violations but objects to the amount of penalties and questions OSHA’s jurisdiction over its establishment. \u00a0 Loomis contends that OSHA is without jurisdiction because it formed a partnership agreement with its prior employees.\u00a0 The Secretary, on the other hand, argues that OSHA does have jurisdiction because Loomis is not really a partnership, but rather there exists an employer-employee relationship. \u00a0\u00a0\u00a0 In order to analyze the relationship which exists between Loomis and it’s employees it is necessary to look at the substance over the form of the relationship. \u00a0 In so doing, the Commission has created a test for determining the nature of the relationship between the employee and employer. \u00a0\u00a0\u00a0 Early on, the Commission applied the \”economic realities test\” to determine whether an employment relationship exists.\u00a0 Griffin & Brand of McAllen, Inc., 6 BNA OSHC 1702 (No. 14801, 1978).\u00a0 There is no single criterion that determines the existence of an employment relationship, rather the Commission pointed to seven factors which should be considered as a whole.\u00a0 Griffin, 6 BNA OSHC at 1703.\u00a0 The seven factors are as follows: \u00a0\u00a0\u00a0 (1) Whom do the workers consider their employer? \u00a0\u00a0\u00a0 (2) Who pays the workers’ wages? \u00a0\u00a0\u00a0 (3) Who has the responsibility to control the workers? \u00a0\u00a0\u00a0 (4) Does the alleged employer have the power to control the workers? \u00a0\u00a0\u00a0 (5) Does the alleged employer have the power to fire, hire or modify the employment condition of the workers? \u00a0\u00a0\u00a0 (6) Does the workers’ ability to increase their income depend on efficiency rather than initiative, judgment, and \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 foresight? \u00a0\u00a0\u00a0 (7) How are the workers’ wages established? \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Recently, the Commission again applied the economic realities test in Van Buren-Madawaska Corp., 13 BNA OSHC 2157 (Docket Nos. 87-214, 87-217, 87-450 through 459, 1989).\u00a0 The Van Buren-Madawaska decision offers further insight in applying the economic realities test. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (1) \u00a0\u00a0\u00a0\u00a0 Whom do the workers consider their employer? \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Mr. Han Do, a \”general partner\” with Eastview, was the only worker deposed before the hearing.\u00a0 Mr. Do stated at the deposition that Mr. Loomis was his supervisor before the partnership.\u00a0 This would indicate that Mr. Do no longer believed Mr. Loomis was his employer.\u00a0 Nevertheless, although there was some evidence that Mr. Do had increased supervisory duties after the formation of Eastview, his position essentially remained the same and more in the nature of an employee. \u00a0\u00a0\u00a0 The depositions of both Mr. Loomis and Mr. Do indicate that the Eastview partners still look to Mr. Loomis as their employer.\u00a0 For example, Mr. Do does not have the authority to actually fire an employee although he could recommend a firing.\u00a0 Mr. Do does not take any orders from customers, and only negotiates a price on small orders.\u00a0 (Depo. of Mr. Loomis, Ex. J-2(a), p. 36).\u00a0 Mr. Do and the other partners have set hours each day.\u00a0 The \”partners\” do not purchase any supplies, nor do they create their own designs.\u00a0 Even more telling is the exclusive nature of the relationship with Loomis.\u00a0 Eastview does not advertise for business; \u00a0 it’s sole customer is Loomis.\u00a0 )Depo. of Mr. Loomis, Ex. J-2(a) p. 38; Depo. of Mr. Do, Ex. J-2(b) p. 19).\u00a0 Both Mr. Do’s and Mr. Loomis’ depositions offer a clear picture of the relationship between Eastview and Loomis.\u00a0 Despite the employees’ new titles, and employer-employee relationship continue to exist between Eastview partner’s and Loomis. \u00a0\u00a0\u00a0 (2)\u00a0 Who pays the workers’ wages? \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The nature of the wage distribution indicates that Mr. Loomis continues to fulfill the role of employer.\u00a0 Eastview does not have its own secretary or bookkeeper; rather, the Eastview partners are paid by Loomis’ secretary and bookkeeper on an hourly basis.\u00a0 (Depo. of Mr. Loomis, Ex. J-2(a) P. 40).\u00a0 Although the partners are given a percentage of the profits, Mr. Loomis noted that if a partner is absent his wages will be reduced.\u00a0 (Depo. of Mr. Loomis, Ex. J-2(a) P. 35).\u00a0 Thus, Loomis continues to pay the worker’s wages. \u00a0\u00a0\u00a0 (3)\u00a0 Who has the responsibility to control the workers?\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The record evidence further indicates that Mr. Loomis continues to exercise control overthe workers.\u00a0 Mr. Do\u00a0\u00a0\u00a0\u00a0 cannot decide when the work will becompleted.\u00a0 Mr. Loomis controls all bookkeeping, wages, profit making, and managerialdecisions.\u00a0 (Depo. of Mr. Loomis, Ex. J-2(a) P. 18).\u00a0 Mr. Loomis controls theworkload and has required the employees to work more hours to meet the production goals.\u00a0 (Depo. of Mr. Loomis, Ex. J-2(a) P. 31).\u00a0 Loomis selects the tools, equipment,and materials the employees are to be using.\u00a0 Mr. Loomis controls all leasenegotiations and expansion decisions.\u00a0 (Depo. of Mr. Loomis, Ex. J-2(a) Pp. 54-55,66).\u00a0 Eastview uses Loomis’ designs exclusively.\u00a0 Despite the new partnership,Loomis continues to exercise considerable control over the partners.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (4)\u00a0 Doesthe alleged employer have the power to control the workers? \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Mr. Loomis plays a significant role in the hiring and firing of workers.\u00a0 Mr. Do didpoint out that he recommended a friend and brother to join the partnership which wasbrought before the partners.\u00a0 However, Mr. Loomis does all initial screening ofapplicants and determines whether or not a new worker is needed.\u00a0 (Depo. of Mr.Loomis, Ex. J-2(a) P. 47).\u00a0 Although Mr. Do has some supervisory duties, Mr. Loomiscontinues to exercise significant control over the workers.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (5) Does theAlleged employer have the power to hire, fire or modify the employment condition of theworkers?\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 On the basis of theevidence, this inquiry must be answered in the affirmative.\u00a0 Mr. Loomis can dockworker;s wages.\u00a0 (Depo. of Mr. Loomis, Ex. J-2(a) Pp. 35, 57).\u00a0 Mr. Loomisdetermines when new employees will be hired and conducts screening interviews. \u00a0(Depo. of Mr. Do, Ex. J-2(b) P. 23).\u00a0 Mr. Loomis will also recommend firing whennecessary.\u00a0 (Depo. of Mr. Loomis, Ex. J-29a0 P. 20).\u00a0 Although Mr. Loomisappears to have delegated these duties to the \”management committee,\” hecontinues to play a powerful role in final decisions of\u00a0 Eastview.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (6)\u00a0 Doesthe workers’ ability to increase their income depend on efficiency rather than initiative,judgment, and \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0foresight?\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In the case at hand,the workers are required to be efficient during their working hours, otherwise asupervisor will issue warnings.\u00a0 Although naturally the workers’ increasedproductivity will result in increased profits, the record evidence indicates that thepartners show little initiative and exercise little or no business judgement. \u00a0Additionally, Eastviews’ sole means of support is through its contract with Loomis. \u00a0Eastview is financially dependent on Loomis.\u00a0 Eastview does no advertising,soliciting and makes minimal effort to gain outside contracts.\u00a0 Eastview worksexclusively for Loomis and is not allowed to work for other cabinet shops.\u00a0 (Depo. ofMr. Loomis, Ex. J-2(a) P. 36).\u00a0 Under these circumstances, an employment relationshiprather than an independent contractor relationship exists.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 (7)\u00a0 How arethe workers’ wages established?\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The workers’ wagesare established by Mr. Loomis.\u00a0 Mr. Loomis determines how much the Eastview partnerswill receive.\u00a0 He deducts all rent, insurance payments and then issues Eastview theirallotment.\u00a0 The partner level system of payment was devised by Loomis and Eastview.\u00a0 (dep. of Mr. Loomis, Ex. J-2(a) Pp. 45-46).\u00a0 This extensive control over theworkers’ wages is further evidence of an employer-employee relationship.\u00a0\u00a0\u00a0\u00a0 Under the Occupational Safety and Health Act, an employer whoexercises that control also has a corresponding responsibility to control the workenvironment to assure the safety and health of the employees.\u00a0 VanBuren-Madasawka, 13 NBA OSHC at 2159.\u00a0 Ultimately, Mr. Loomis has control overthe workers.\u00a0 Since Mr. Loomis exercises a significant degree of control over theworkers it is incumbent that he also ensure a safe and healthful work environment.\u00a0 \u00a0\u00a0\u00a0 In this case the separate identity of Eastview and Loomis should bedisregarded because Mr. Loomis exercises control over the partners of Eastview and thusover their work environment.\u00a0 The commission stressed that \”Formaltechnicalities are not determinative, however, if they present a false image of theemployment relationship.\”\u00a0 Griffin, 6 BNA OSHC at 1703-1704.\u00a0 So itis in this case, equity should look to the substance and not the form of the partnershipin determining whether an employment relationship existed.\u00a0 On the basis of the abovenoted facts, If find there existed an employer-employee relationship between Eastview andLoomis despite its partnership form.\u00a0 Accordingly, OSHA has jurisdiction over Loomis’workplace.ALLEGED VIOLATIONS\u00a0\u00a0\u00a0 Loomis essentially put all its eggs in one basket in arguing thatOSHA was without jurisdiction.\u00a0 Loomis otherwise made minimal attempt to demonstratethat it should prevail on the basis of any affirmative defenses.\u00a0 Since Loomissubmitted little or no evidence, many of the violations must be affirmed on the basis ofLoomis’ own admissions as outlined in the Stipulation at exhibit J-12 and the recordevidence.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0DISCUSSIONREPEAT VIOLATIONS\u00a0\u00a0 Citation NO. 1, Item 1 Alleged Repeat Violation of 29CFR 1910.-22(a) (1).\u00a0\u00a0\u00a0 The Secretary cited Loomis for a repeat violation of section1910.22(a) (1) because the work area outside the back door of the shop in the Holz TrimSaw area was cluttered with pieces of lumber, piles of excess lumber and saw dust andloose electrical cords.\u00a0 A proposed penalty of $1,000 was assessed.\u00a0 Loomis doesnot contest that it’s employees were exposed to the cited condition, but objects to theseriousness of the hazard and the amount of the penalty.\u00a0 (Ex. J-12, Stipulation, No.25).\u00a0\u00a0\u00a0 The compliance officer testified that the hazard in this citation isthat of a worker falling off the pile of wood, possibly tripping, going into the planer orhitting his head on the metal table.\u00a0 (Testimony of Ms. Karr, Tr. 33-34).\u00a0 Thisviolation is depicted in a photograph taken by the compliance officer.\u00a0 (Ex. J-11(b).\u00a0 This condition does present a serious hazard.\u00a0 Loomis offered no evidence tothe contrary.\u00a0 Accordingly, the violation is established and the $1,000 penalty isaffirmed. \u00a0\u00a0\u00a0 Citation NO. 1, Item 1(a) Alleged Repeat Violation of 29 CFR1910.305(b) (2).\u00a0\u00a0\u00a0 It is alleged that Loomis did not have approved covers for pullboxes, junction boxes and fittings and thereby exposing its employees to a hazard of burnsor smoke inhalation.\u00a0 A proposed penalty of $400 was assessed.\u00a0 Again, Loomisdoes not contest the violation, but disputes the appropriateness of the penalty. \u00a0(Ex. J-12, Stipulation, No. 26).\u00a0 Because Loomis admits there was a violation and itis a repeat and the compliance officer followed the guidelines in the Federal OperationsManual correctly, the violation and $400 penalty must be affirmed. \u00a0 (Testimony ofMs. Karr, Tr. 34-35).OTHER THAN SERIOUS VIOLATIONS\u00a0\u00a0\u00a0 Citation NO. 2, Item 1 Alleged Other Than Serious Violation of 29CFR 1903.16(a).\u00a0\u00a0\u00a0 Citation Number 2, Item 1 alleges that Loomis violated 29 CFR1903.16(a) in that Loomis did not post the prior inspection’s citations, or uneditedcopies thereof at the worksite in places readily observable by all affected employees atthe time of the follow-up inspection.\u00a0 (Ex. J-12, Stipulation NO. 27).\u00a0 Aproposed penalty of $500 was assessed.\u00a0 Loomis contends that the poster had beenpreviously posted after the original inspection.\u00a0\u00a0\u00a0 Under 29 CFR 1903.16(b) each citation, or a copy thereof, shallremain posted until the violation has been abated or for 3 working days, whichever islater.\u00a0 Loomis readily admits that certain violations were not abated.\u00a0 Further,Mr. Loomis stated that he thought only some of the \”senior people\” were aware ofthe penalties.\u00a0 (Depo. of Mr. Loomis, Ex. J-12 (a) P. 10).\u00a0\u00a0\u00a0 Under 1903.16(a), the citation shall be posted, unedited, in aprominent place where it will be readily observable by all affected employees. \u00a0Since, Loomis did not comply with the posting requirements, the violation isaffirmed.\u00a0 Additionally, because the compliance officer calculated the penalty on thebasis of the Federal Operations Manual which provides that posting citations are $500, thepenalty is reasonable.\u00a0 (Testimony of Ms. Karr, Tr. 35).FAILURE TO ABATE VIOLATIONS\u00a0\u00a0\u00a0 Item Nos. 1-2(a) and 1-2(b) Alleged FTA Violation of 29 CFR1910.37(k) (2) and 1910.37(q) (a).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Loomis stipulated that it was aware the doorwas blocked in the condition as depicted in Exhibit Numbers 11 (a) through (e), and thatthe condition had not been corrected as required by the prior inspection.\u00a0 A proposedpenalty of $6,000 was assessed for these two grouped items.\u00a0 Loomis contends that thesix large bay doors are always open during business hours.\u00a0 Loomis questions whetherunmarked exit doors and the condition depicted in Exhibit Numbers J-11 (a) through (e)poses \”blocked exits\” so as to cause a serious hazard and whether the penalty isappropriate.\u00a0 (J-12, Stipulation Nos. 10, 11).\u00a0\u00a0\u00a0 Ms. Karr testified that one door was blocked with tires and cans.\u00a0 (Tr. 20; Ex. J-11 (a).\u00a0 Another door was blocked by wood in front of the doorand beside the door.\u00a0 (Testimony of Ms. Karr, Tr. 21; Ex. J-11 (b).\u00a0\u00a0 Yetanother door was blocked by poles and frames.\u00a0 (Testimony of Ms. Karr, Tr. 21; Ex.J-11(b)).\u00a0 Yet another door was blocked by poles and frames.\u00a0 (Testimony of Ms.Karr, Tr. 21; Ex. J-11(b)).\u00a0 Loomis’ argues that (1) the doors are always open duringbusiness hours, (2) the doors are wide enough to provide clear access, and (3) becausethey no longer operate in the same manner, the situation of poles and frames in front ofthe doors no longer exists.\u00a0 (testimony of Mr. Loomis, Tr. 70-71).\u00a0\u00a0\u00a0 Loomis’ arguments are not convincing.\u00a0 The photography’sclearly show that the exits were blocked.\u00a0 Although Loomis may have changed itsoperating procedures to eliminate blocked exits, it is undisputed that poles and frameswere barring clear access to the exits on the day of the re-inspection.\u00a0 Thissituation limited employee egress which presented hazardous condition sin an emergency.\u00a0 Also, because of the number of blocked exits which were all unmarked the conditionis serious.\u00a0 Accordingly, the Secretary has established a violation of this standard.\u00a0 This situation can be easily abated, yet Loomis continued to remain in opendefiance of the Act.\u00a0 Given the gravity of the violations and Loomis’ lack of goodfaith the $6,000 penalty is appropriate.\u00a0\u00a0\u00a0 Item No. 1-3 Alleged FTA, Violation of 29 CFR 1910.94 (c) (2).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Loomis stipulated to the fact that the sprayfinishing operation was not in compliance with ?? 201 through 206 of the \”Standardfor Spray Finishing Using Flammable and Combustible Materials,\” NFPA No. 33-1969.\u00a0 Loomis further admitted that there was nonmechanical ventilation in thespray-finishing operation and the cords in use were not explosion proof and that theworkers were using flammable materials in the spray finishing area.\u00a0 Loomis contendsthat the ventilation provided by 3 of the bay doors which are open at all times duringbusiness hours is sufficient.\u00a0 Again, Loomis contends that the condition is notserious and questions the appropriateness of the penalty.\u00a0 Loomis also asserted theaffirmative defense of feasibility.\u00a0 (ex. J-12, Stipulation No. 12).\u00a0\u00a0\u00a0 Ms. Karr observed that the spray finishing operation was open to thewhole shop while the surrounding machinery was in use which could provide an ignitionsource for the fumes.\u00a0 (Tr. 23; Ex. C-1 through C-3).\u00a0 Mr. Loomis testified thatthe natural ventilation of the building is sufficient to prevent fumes from spreading.\u00a0 (Tr. 75-78, Ex. R-3.\u00a0 Loomis’ evidence is not convincing.\u00a0 Additionally,Loomis submitted no evidence to support its affirmative defense of feasibility.\u00a0 TheSecretary has established a violation of the standard.\u00a0 Under these circumstances,the $6,000 penalty is appropriated.\u00a0\u00a0\u00a0 Item NO. 1-5 Alleged FTA, Violation of 29 CFR 1910.133(a) (1)\u00a0\u00a0\u00a0 Loomis does not dispute the fact that he did not require his workersto use protective eye equipment while working around wood working equipment and operatingstaple\/nail guns.\u00a0 Loomis contends that this is not a serious hazard and questionsthe appropriateness of the penalty.\u00a0 (Ex. J-12, Stipulation No. 13).\u00a0 This is aserious violation because there exists the possibility of eye injury or damage to theface.\u00a0 (Testimony of Ms. Karr, Tr. 27).\u00a0 Loomis submitted no convincing evidenceto the contrary.\u00a0 Thus, the Secretary has established a violation of the standard andthe corresponding $5,000 penalty is appropriate.\u00a0\u00a0\u00a0 Item No. 1-6 Alleged FTA, Violation of 29 CFR 1910.213(b) (3)\u00a0\u00a0\u00a0 Loomis does not dispute that the cited machines, the horizontal beltsander, the Sterling band saw, the Dewalt radial saw, the Delta Chop saw, and the Makitachop saw did not have magnetic switches to prevent them from automatically restarting uponrestoration of power after a power failure.\u00a0 Loomis contends that the Delta Chop sawand the Makita Chop saw have trigger switches and that the Rockwell table saw in fact hada magnetic switch.\u00a0 Loomis argues that the condition does not pose a serious hazard,and questions the appropriateness of the penalty.\u00a0 Ex. J-12, Stipulation No. 14).\u00a0\u00a0\u00a0 During the original inspection, Mr. Diaz tested all the machines formagnetic switches.\u00a0 He determined that the cited machines did not have magneticswitches.\u00a0 At the re-inspection, Mr. Diaz only tested a few of the machines todetermine whether Loomis had abated the hazard.\u00a0 The machines still did not havemagnetic switches.\u00a0 According to Mr. Diaz, he did not complete the testing becauseMr. Loomis had told him that he had not abated the hazard.\u00a0 (Tr. 52-53). \u00a0According to Mr. Loomis the Rockwell table saw was already equipped with a magneticswitch.\u00a0 (Tr. 83).\u00a0\u00a0\u00a0 The testimony of Mr. Diaz is credited.\u00a0 Mr. Diaz conductedtesting of each machine at the original inspection and determined that none of them hadmagnetic switches.\u00a0 Given Mr. Loomis’ failure to abate any of the hazardousconditions at his workplace and the lack of evidence submitted at the hearing regardingthe Rockwell Table saw, I find that the Rockwell Table saw did not have a magnetic switch.\u00a0 Accordingly, the Secretary has established a violation of the standard.\u00a0 Thelack of proper switches poses the hazard of a serious laceration when dealing with saws ofthis power.\u00a0 Under these circumstances, I find the $5,000 penalty is appropriate.\u00a0\u00a0\u00a0 Item NO. 1-7 Alleged FTA, Violation of 29 CFR 1910.213 (d) (1)\u00a0\u00a0\u00a0 Loomis admits that the table saws were not guarded as required bythe standard.\u00a0 Loomis asserts the greater hazard defense, questions the seriousnessof the hazard, and whether the penalty is appropriate.\u00a0 (Ex. J-12, Stipulation NO.15).\u00a0 The Secretary submitted three pages of guards which could be used with Loomis’equipment.\u00a0 (Ex. C-4).\u00a0 Mr. Diaz pointed out that unguarded saws create ahazardous condition in that fingers could be lacerated or amputated.\u00a0 (Tr. 58).\u00a0\u00a0\u00a0 Mr. Loomis stated that its safer to not use a guard because the\”guys just don’t like them on there\” as it creates a false sense of security andit impairs your vision of the blade.\u00a0 (Tr. 84-85).\u00a0 Mr. Loomis further pointedout that in a previous job at a mobile home factory guards were required and usedregularly.\u00a0 (tr. 84).\u00a0 Mr. Loomis’ testimony is not convincing; indeed he hasdiscredited his own testimony by pointing to the safety program of another workshop whichrequires that guards be used regularly.\u00a0 Accordingly, the Secretary has established aserious violation of the standard.\u00a0 Under the circumstances, the $6,000 penalty isappropriate.\u00a0\u00a0\u00a0 Item NO. 1-8(a) Alleged FTA, Violation of 29 CFR 1910.213(h) (1)\u00a0\u00a0\u00a0 Loomis admits that the radial saws in question did not have thesides of the lower exposed portion of the blade guarded to the full diameter of the bladeby a device that automatically adjusted itself to the thickness of the stock and remainedin contact with the material being cut.\u00a0 Loomis argues that the abatement of thishazard creates a greater hazard, questions the seriousness of the hazard, and whether thepenalty is appropriate.\u00a0 (Ex. J-12, Stipulation No. 16).\u00a0\u00a0\u00a0 Loomis submitted no additional evidence to support its argumentsunder this item.\u00a0 For the reasons stated above in FTA Item 1-7, the violation andpenalty must be affirmed.\u00a0\u00a0\u00a0 Item NO. 1-8(b) Alleged FTA, Violation of 29 CFR 1910.213(h) (4)\u00a0\u00a0\u00a0 Loomis stipulated that the Dewalt radial cutting head did not returnto the starting position automatically when released by the operation.\u00a0 Loomis merelyquestions the seriousness of the hazard, whether the abatement creates a greater hazardand whether the penalty is appropriate.\u00a0 (Ex. J-12, Stipulation No. 17).\u00a0 Mr.Diaz pointed out that this hazard is easily abated by installing a safety device on thesaw.\u00a0 Loomis submitted no evidence to support its position.\u00a0 Accordingly, theSecretary has established a violation of the standard.\u00a0 Since this condition isserious and is easily abated, the $6,000 penalty for the grouped items 8(a) and 8(b) areappropriate.\u00a0\u00a0\u00a0 Item NO. 2-1 Alleged FTA, Violation of 29 CFR 1903.2(a)(1)\u00a0\u00a0\u00a0 Loomis admitted that the OSHA notice was not posted at theworkplace,\u00a0 Loomis contends that the poster had been previously posted after theoriginal inspection.\u00a0 Loomis questions the appropriateness of the penalty.\u00a0 (Ex.J-12, Stipulation NO. 18).\u00a0\u00a0\u00a0 Loomis’ arguments are without merit.\u00a0 Under 29 CR 1903.2(a) (1)each employer shall post and keep posted a notice…informing employees of the protectionsand obligations provided for in the Act.\u00a0 Even though Loomis may have had a posterpreviously posted, he did not have one posted on the day of the re-inspection incontravention of the standard.\u00a0 Accordingly, the Secretary has established aviolation of the standard.\u00a0 Loomis was not assessed a penalty previously and Ms. Karrnoted that Loomis had been assessed the lowest possible penalty in this situation. \u00a0Since this is an other than serious violation and Loomis was already assessed the lowestpossible penalty, the penalty of $1,000 is appropriate.\u00a0\u00a0\u00a0 Item NO. 2-2 Alleged FTA, Violation of 29 CFR 1904.2(a)\u00a0\u00a0\u00a0 Loomis admits that the OSHA-200 log was not kept at the workplacefor the years 1985-1987.\u00a0 The parties agree that this is an other than seriousviolation.\u00a0 Loomis merely questions the validity of the penalty.\u00a0 (Ex. J-12,Stipulation NO. 19).\u00a0 For the same reasons as previously noted in the FTA 2-1 otherthan serious violation, the penalty of $1,000 is appropriate.\u00a0\u00a0 Item No. 2-3 Alleged FTA, Violation of 29 CFR 1910.141(a) (3) (i)\u00a0\u00a0\u00a0 Loomis admits that the men toilet facility was not clean and had notbeen kept clean as required by the prior inspection, Citation NO. 1, Item 3 issued March1, 1988 and that it is an other than serious hazard.\u00a0 Loomis disputes the amount ofthe penalty.\u00a0 (Ex. J-12, Stipulation No. 20).\u00a0 Again, for the same reasons aspreviously noted in the FTA 2-1 other than serious violation, the penalty of $1,000 isappropriate.\u00a0\u00a0\u00a0 Item No. 2-4 Alleged FTA, violation of 29 CFR 1910.213 (p) (4)\u00a0\u00a0\u00a0 The Secretary alleged that a horizontal belt sander did not have aguard provided at each nip point where a sanding belt ran onto a pulley to prevent theoperator’s hands or fingers from coming into contact with nip points.\u00a0 Mr. Loomisadmitted in his deposition that the belt sander did not have a guard.\u00a0 (Exhibit J-12,Pp. 90-91).\u00a0 The Secretary has established a violation of the standard and the $1,000penalty is reasonable.\u00a0\u00a0\u00a0 Item No. 2-5 Alleged FTA, Violation of 29 CFR 1910.242(b)\u00a0\u00a0\u00a0 Loomis admits that compressed air used for cleaning purposes was notreduced to less than 30 p.s.i.. Loomis contends that abatement is not feasible and thatthe penalty is not appropriate.\u00a0 (Ex. J-12, Stipulation No. 21).\u00a0 Mr. Loomisadmitted that his air hose operates at a minimum pressure of 90 p.s.i.. Loomis offered noevidence in support of its feasibility argument.\u00a0 Mr. Diaz recommended a\”reducer\” which could be applied to the hose in order to lower the pressure.\u00a0 This situation poses a threat of eye injuries or embolism where the skin might ripwith the pressure of the air hose.\u00a0 (Testimony of Mr. Diaz, Tr. 63).\u00a0 TheSecretary has established a violation not the standard.\u00a0 Under these circumstances,the $1,000 penalty is appropriate.\u00a0\u00a0\u00a0 Item No. 2-7 Alleged FTA, Violation of 29 CFR 1910.1200(f). (g)and (h).\u00a0\u00a0 \u00a0\u00a0\u00a0 Loomis admits that it did not develop or implement a written hazardcommunication program which at least describes how the criteria in 29 CFR 1910.1200(f) (g)and (h) would be met.\u00a0 Loomis admits that its workers were using chemicals such asWeldwood Contact Adhesive, and that there were the manufacturer’s warning labels on thecontainers.\u00a0 Loomis merely questions the appropriateness of the penalty.\u00a0 By itsown admission, Loomis has violated the standard.\u00a0 The $1,000 penalty is appropriateunder these circumstances.\u00a0\u00a0\u00a0 Item No. Alleged FTA, Violation of 29 CFR 1910.1200(g) (1)\u00a0\u00a0\u00a0 Loomis admits that it did not have a material safety data sheet(MSDS) for each hazardous chemical which was used in the workplace and that the workerswere using chemicals such as Weldwood Contact Adhesive.\u00a0 Loomis merely questions theamount of the penalty.\u00a0 (J-12, Stipulation NO. 23).\u00a0 This violation can easilybe abated, yet Loomis continued to defy the requirements of the Act.\u00a0 Accordingly,the $1,000 penalty is reasonable.\u00a0\u00a0\u00a0 Item No. 2-9 Alleged FTA, Violation of 29 CFR 1910.1200(h) (1)and (2).\u00a0\u00a0\u00a0 Loomis admits that it did not provide information and training asspecified under the standard on hazardous chemicals in their work area at the time oftheir initial assignment and whenever a new hazard is introduced in their work area.\u00a0 The parties agree that the workers were using chemicals such as Weldwood ContactAdhesive.\u00a0 Loomis merely questions the appropriateness of the penalty.\u00a0 (J-12,Stipulation No. 24).\u00a0 The Secretary has established a violation of the standard.\u00a0 Under these circumstances, the penalty of $1,000 is reasonable.\u00a0\u00a0\u00a0 In sum, I note that Mr. Loomis has taken a cavalier attitude towardthe safety of his workers on the job.\u00a0 This is evidenced by his unwillingness toabate the violations and his \”common sense\” approach to safety on the job.\u00a0 For example, Mr. Loomis stated \”there isn’t really any safety guy, you know.\u00a0 They would laugh at him and tell him to leave me alone.\”\u00a0 Further,\”It’s not for me to tell him how he should run his saw….And it’s not my duty to goout there and tell them.\”\u00a0 (Depo. of Mr. Loomis, Ex. J-29a), Pp. 64-65, 83).\u00a0 Loomis’ overall lack of concern for the safety of its employees and therequirements of the Act supports a strong showing of lack of good faith.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0FINDINGS OF FACT\u00a0\u00a0\u00a0 All findings of fact relevant and necessary to a determination ofthe contested issues have been found specifically and appear herein.\u00a0 See Rule 52(a)of the Federal Rules of Civil Procedure.\u00a0 Proposed Findings of Fact or Conclusions ofLaw inconsistent with this decision are denied.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CONCLUSIONS OF LAW\u00a0\u00a0\u00a0 1.\u00a0 The record establishes by a prepondance of the evidencethat there is no partnership among Eastview \”partners\” nor between LoomisCabinet Company and its employees, and that the relationship is one of employer (Loomis)and employees (Eastview), and that Loomis is subject to the jurisdiction of theOccupational Safety and Health Act of 1970 as an employer.\u00a0\u00a0\u00a0 2.\u00a0 The record establishes by a prepondance of the evidencethat Loomis Cabinet Company violated the following sections of the regulations:\u00a0\u00a0\u00a0 1.\u00a0 29 CFR ? 1910.22(a) (1)\u00a0\u00a0\u00a0 2.\u00a0 29 CFR ? 1910.305(b) (2)\u00a0\u00a0\u00a0 3.\u00a0 29 CFR ? 1903.16(a)Additionally, the respondent failed to abate violations of the following sections:\u00a0\u00a0\u00a0 4.\u00a0\u00a0 29 CFR ? 1910.37(k) (2) and 29 CFR ? 1910-37(q) (1)\u00a0\u00a0\u00a0 5.\u00a0\u00a0 29 CFR ? 1910.94(c) (2)\u00a0\u00a0\u00a0 6.\u00a0 29 CFR ? 1910.133(a) (1)\u00a0\u00a0\u00a0 7.\u00a0 29 CFR ? 1910.213(b) (3)\u00a0\u00a0\u00a0 8.\u00a0 29 CFR ? 1910.213(d) (1)\u00a0\u00a0\u00a0 9.\u00a0 29 CFR ? 1910.213(h) (1) and 29 CFR ? 1910.213(h) (4)\u00a0\u00a0\u00a0 10. 29 CFR ? 1903.2(a) (1)\u00a0\u00a0\u00a0 11. 29 CFR ? 1904.2(a)\u00a0\u00a0\u00a0 12. 29 CFR ? 1910.141(a)(3)(i)\u00a0\u00a0\u00a0 13. 29 CFR ? 1910.213(p) (4)\u00a0\u00a0\u00a0 14. 29 CFR ? 1910.242(b)\u00a0\u00a0\u00a0 15. 29 CFR ? 1910.1200(f), (g) and (h)\u00a0\u00a0\u00a0 16. 29 CFR ? 1910.1200(g) (1)\u00a0\u00a0\u00a0 17. 29 CFR ? 1910.1200(h) (1) and (2)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ORDERBased upon the Findings of Facts, Conclusions of Law, and the entire record, it ishereby ordered:\u00a0\u00a0\u00a0 1.\u00a0 Citation 1, item 1 is affirmed as a repeat violation of 29CFR ? 1910.22 (a) (1) with a penalty of $1,000.\u00a0\u00a0\u00a0 2.\u00a0 Citation 1, item 2(a) is affirmed as a repeat violation of29 CFR ? 1910.305(b) (2) with a penalty of $400.\u00a0\u00a0\u00a0 3.\u00a0 Citation 2, item 1 is affirmed as an other than seriousviolation of 29 CFR ? 1903.16(a) with a penalty of $500.\u00a0\u00a0\u00a0 4.\u00a0 FTA items 1-2(a) and 1-2(b) are affirmed as a violation of29 CFR ? 1910.37(k) (2) and ? 1910.37(q) (1) with a penalty of $6,000.\u00a0\u00a0\u00a0 5.\u00a0 FTA item 1-3 is affirmed as a violation of 29 CFR ?1910.-94(c) (2) with a penalty of $6,000.\u00a0\u00a0\u00a0 6.\u00a0 FTA item 1-5 is affirmed as a violation of 29 CFR ?1910.-133(a) (1) with a penalty of $5,000.\u00a0\u00a0\u00a0 7.\u00a0 FTA item 1-6 is affirmed as a violation of 29 CFR ?1910.-213(b) (3) with a penalty of $5,000.\u00a0\u00a0\u00a0 8.\u00a0 FTA item 1-7 is affirmed as a violation of 29 CFR ?1910.-213(d) (1) with a penalty of $6,000.\u00a0\u00a0\u00a0 9.\u00a0 FTA items 1-8(a) and 1-8(b) are affirmed as a violation of29 CFR ? 1910.213(h) (1) and ? 1910.213(h) (4) with a penalty or $6,000.\u00a0\u00a0\u00a0 10. FTA item 2-1 is affirmed as a violation of 29 CFR ?1903.-2(a)(1) with a penalty of $1,000.\u00a0\u00a0\u00a0 11. FTA item 2-2 is affirmed as a violation of 29 CFR ? 1904.-2(a)with a penalty of $1,000.\u00a0\u00a0\u00a0 12. FTA item 2-3 is affirmed as a violation of 29 CFR ?1910.-141(a) (3) (i) with a penalty of $1,000.\u00a0\u00a0\u00a0 13. FTA item 2-4 is affirmed as a violation of 29 CFR ?1910.-213(p)(4) with a penalty of $1,000.\u00a0\u00a0\u00a0 14. FTA item 2-5 is affirmed as a violation of 29 CFR ?1910.-242(b) with a penalty of $1,000.\u00a0\u00a0\u00a0 15. FTA item 2-7 is affirmed as a violation of 29 CFR ?1910.-1200(f), (g) and (h) with a penalty of $1,000.\u00a0\u00a0\u00a0 16. FTA item 2-8 is affirmed as a violation of 29 CFR ?1910.-1200(g) (1) with a penalty of $1,000.\u00a0\u00a0\u00a0 17. FTA item 2-9 is affirmed as a violation of 29 CFR ?1610.-1200(h) (1) and (2) with a penalty of $1,000.Irving Sommer\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Judge, OSHRCDATED: Sep 5, 1989\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Washington, D.C.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ADDENDUMFAILURE TO ABATE:\u00a0 CITATION ONEITEM ALLEGED VIOLATION2(a)\u00a0\u00a0\u00a0 29 CFR 1910.37(k) (2) in that means of egress were notcontinuously maintained free of obstructions or impediments to allow instant use in caseof fire or other emergency.\u00a0 Four exit doors remained blocked by materials impedingegress.2(b)\u00a0\u00a0\u00a0 29 CFR 1910.37(q) 91) in that four exit doors were not marked byreadily visible exit signs.\u00a0 Items 2(a) and 2(b) were grouped and a proposedadditional penalty of $6,000 was assessed for both.3\u00a0\u00a0\u00a0 29 CFR 1910.94(c) (2) in that spray finishing operations were stillnot located as provided in ?? 201 through 206 of the \”Standard for Spray FinishingUsing Flammable and Combustible Materials, NFPA No. 33-1969.\u00a0 Thus, creating thehazard of lack of adequate ventilation and the presence of non-explosive proof wiring.\u00a0 A proposed additional penalty of $6,000 was assessed.5\u00a0\u00a0\u00a0 29 CFR 1910.133(a) (1) in that protective eye equipment was notrequired where there was a reasonable probability of injury.\u00a0 Employees were notwearing eye protection while working around woodworking machinery and operatingstaple-nail gun.\u00a0 A proposed additional penalty of $5,000 was assessed.6\u00a0\u00a0\u00a0 29 CFR 1910.213(b) (3) in that provisions were not made to preventwoodworking machines from automatically restarting upon restoration of power after a powerfailure.\u00a0 The complaint alleged that the following 6 woodworking machines did nothave magnetic switches:(1)\u00a0\u00a0\u00a0 One Horizontal Belt Sander;(2)\u00a0\u00a0\u00a0 One Sterling Band Saw;(3)\u00a0\u00a0\u00a0 One Rockwell Table Saw;(4)\u00a0\u00a0\u00a0 One DeWalt Radial Saw;(5)\u00a0\u00a0\u00a0 One Delta Chop Saw; and(6)\u00a0\u00a0\u00a0 One Makita Chop Saw.A proposed additional penalty of $5,000 was assessed.7\u00a0\u00a0\u00a0 29 CFR 1910.213(d) (1) in that circular hand-fed cross cut tablesaws were not guarded by an automatically adjusting hood which completely enclosed thatportion of the saw above the table and the material being cut.\u00a0 The complaint allegedthat the following 3 cutting blades were not guarded:(1)\u00a0\u00a0\u00a0 One Delta Unisaw;(2)\u00a0\u00a0\u00a0 One Powermatic Saw; and(3)\u00a0\u00a0\u00a0 One Rockwell Saw.A proposed additional penalty of $6,000 was assessed.ITEM\u00a0\u00a0\u00a0\u00a0 ALLEGED VIOLATION8(a)\u00a0\u00a0\u00a0 29 CFR 1910.213(h) (1) in that the sides of the lower exposedportion of the blade of radial saws were not guarded to the full diameter of the blade bya device that automatically adjusts itself to the stock and remains in contact with thematerial being out.\u00a0 The complaint alleged that the following 3 woodworking saws hadunguarded lower blades:\u00a0\u00a0\u00a0 (1)\u00a0\u00a0\u00a0 One DeWalt Radial Saw;\u00a0\u00a0\u00a0 (2)\u00a0\u00a0\u00a0 One Delta Chop Saw; and\u00a0\u00a0\u00a0 (3)\u00a0\u00a0\u00a0 One Makita Chop Saw.8(b)\u00a0\u00a0\u00a0 29 CFR 1910.213(h) (4) in that the DeWalt Radial Saw were notinstalled so as to cause the cutting head to return gently to the starting station whenreleased by the operator.\u00a0 Items 8(a) and 8(b) were grouped and a proposed additionalpenalty of $6,000 was assessed.FAILURE TO ABATE: CITATION NUMBER TWO1\u00a0\u00a0\u00a0 29 CFR 1903.2(a)(1) in that there was yet no OSHA poster posted toinform employees of the rights and obligations provided for in the Act.\u00a0 A proposedadditional penalty of $1,000 was assessed.2\u00a0\u00a0\u00a0 29 CFR 1904.2(a) in that a log of all recordable occupationalinjuries and illnesses (OSHA form No. 200 or equivalent), was not maintained for the years1985 through the present.\u00a0 A proposed additional penalty of $1,000 was assessed.3\u00a0\u00a0\u00a0 29 CFR 1910.141(a) (3) (i) in that places of employment were notkept clean to the extent the nature of the work allowed. The men’s toilet facility was notclean or sanitary, and hand not been kept clean.\u00a0 A proposed additional penalty of$1,000 was assessed.4\u00a0\u00a0\u00a0 29 CFR 1910.213(p) (4) in that a horizontal belt sander did nothave a guard provided at each nip point where a sanding belt ran onto a pulley to preventthe operators hands or fingers from coming into contact with nip points.\u00a0 A proposedadditional penalty of $1,000 was assessed.5\u00a0\u00a0\u00a0 29 CFR 1910.242(b) in that compressed air used for cleaningpurposes was not reduced to less than 30 p.s.i. and employees were using these hoses toclean off their clothes.\u00a0 A proposed additional penalty of $1,000 was assessed.7\u00a0\u00a0\u00a0 29 CFR 1910.1200(e) (1) in that the employer had not developed orimplemented a written hazard communication program which at least described how thecriteria in 29 CFR 1910.-1200(f), (g), and (h) would be met.\u00a0 A proposed additionalpenalty of $1,000 was assessed.ITEM\u00a0\u00a0\u00a0 ALLEGED VIOLATION8\u00a0\u00a0\u00a0 29 CFR 1910.1200(g) (1) in that the employer still did not have amaterial safety data sheet (MSDA) for each hazardous chemical used including, but notlimited to Weldwood Contact Adhesive.\u00a0 A proposed additional penalty of $1,000 wasassessed.9\u00a0\u00a0\u00a0 29 CFR 1910.1200(h) in that the employees were still not beingprovided information and training as specified in 29 CFR 1910.1200(h) (1) and (2) onhazardous chemicals in their work area at the time of their initial assignment andwhenever a new hazard is introduced into their work area.\u00a0 A proposed additionalpenalty of $1,000 was assessed.FOOTNOTES:[[1]] The notification of failure to abate involved 15 standards: 1.) 29 C.F.R. ?1910.379k)(2) (obstructed exists); 2.) 29 C.F.R. ? 1910.37(q)(1) (unmarked exits);3.)C.F.R. ? 1910.94(c)(2) (failure to meet spray-finishing area requirements); 4.) 29 C.F.R.? 1910.133(a)(1) (failure to wear protective eye equipment); 5.) 29 C.F.R. ? 213(b)(3)(six power woodworking machines not provided with switches to prevent restarts uponrestoration of power after power failure); 6.) 29 C.F.R. ? 1910.213(d)(1) and (h)(1)(unguarded power saw); 7.) 29 C.F.R. ? 1910.213(h)(4)(power saw not provided withautomatic return);8.)29 C.F.R. ? 1903.2(a)(1) (failure to post OSHA notice); 9.) 29C.F.R. ? 1904.2(a) (failure to maintain a log of injuries\/illnesses); 10.) 29 C.F.R. ?1910.141(a)(3)9i) (unclean toilet facility); 11.) 29 C.F.R. ? 1910.213(p)(4) (unguardedbelt sander); 12.) 29 C.F.R. ? 1910.242(b) (compressed air in excess of 30 psi); 13.) 29C.F.R. ? 1910.1200(e)(1) (no hazard communication program); 14.) 29 C.F.R. ?1910.1200(g)(1) (no Material Data Sheet for adhesive); 15.) 29 C.F.R. ? 1910.1200(h)(training and information on hazardous chemicals not provided).The repeat citation alleged violations of 1.) 29 C.F.R. ? 1910.22(a)(1) (working areaof trim saw cluttered with debris) and 2.) 29 C.F.R. ? 1910.305(b)(2) (no cover forelectrical receptacle box).\u00a0 The other-than-serious citation alleged a violation of29 C.F.R. ? 1903.16(a) (failure to post citations of violations).[[2]] Section 3(5) of the Act defines \”employer\” as \”a person engaged ina business affecting commerce who has employees.\”\u00a0 Section 3(6) of the Actdefines \”employee\” as \”an employee of an employer who is employed in abusiness of his employer which affects commerce.\”[[3]] In its brief, Loomis states that in August, 1989, the Eastview entity wasreplaced by an entity known as the \”Empire Cabinet Company.\”\u00a0 Loomis claimsthat its business relationship with Empire is essentially the same as the Eastviewrelationship for purposes of this case.[[4]] This case arose during the period from 1987 to 1989 when California’sOccupational Safety and Health Administration (CAL-OSHA) was not in operation. Futureenforcement of the Act at Loomis would be left to CAL-OSHA.[[5]] Mr. Loomis testified that some of the workers, but not the partnership, do\”a little business on the side,\” but that the work could not be done on businesshours because Loomis has an exclusive contract with the partnership.[[6]] When Mr. Loomis was questioned about whether the partnership was formed to\”get out from under federal OSHA\”, he responded that it \”didn’t even enterinto any reason why we did it,\” although he did admit that the members were aware ofthe first OSHA inspection and that some of the senior people knew that penalties had beenassessed.[[7]] There is no documentary evidence detailing the nature of Eastview as it existedbefore September 1, 1988, the date an \”Amended Partnership Agreement for EastviewCabinet Company A California Partnership\” was executed.[[8]] The Amended Partnership Agreement reflects the cash contribution each partnermade in an amount proportional to his ownership interest. The total capital contributioncollected from all the partners amounted to $1000.[[9]] Although the Secretary brought Darden to our attention, neither partyhas briefed its applicability to the facts of this case.\u00a0 Without expressly finding Dardenapplicable, we conclude that the result would be the same under either test.[[10]] When questioned on how raises are given, Mr. Loomis testified as follows:\u00a0\u00a0\u00a0 Well, the contract’s up at the end of the year.\u00a0 See, if you, Iknow they’re going to try to dig into my 25 percent.\u00a0 So I’m going to have to guardagainst that.\u00a0 But the guys, you know, they probably will have to negotiate with me,which I.m not going to budge on.\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 But then they can negotiate with the rest of them about, becausebasically, what happens is that if there’s a guy that’s level two and he wants to be levelthree, the guys in four, five, six and seven got to give him some of their money. \u00a0And basically, they, they don’t know this, I’m not going to let them know, is that levelsone through four could really, they could gang up on the five’s, six’s and seven’s and outquote them and take a bunch of their money.\u00a0″