Docket No. 302

NIBCO OF COLORADO DIVISION, NIBCO, INC.

OSHRC Docket No. 302

Occupational Safety and Health Review Commission

June 10, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order and Chairman Moran's separate order directing review of a decision of Judge Donald K. Duvall. Judge Duvall affirmed six items and vacated five items of Complainant's citation charging non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") for violating regulations promulgated pursuant to the Act. He assessed penalties totalling $123.

Upon review of the entire record we find that the Judge erred in affirming those items of the citation which alleged violations of 29 C.F.R. 1910.310(m), 29 C.F.R. 1910.179(j)(2) and 29 C.F.R. 1910.133(a)(1). n1 The Judge's decision is adopted only to the extent it is consistent with this decision.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Review was also directed on the issue whether the citation was issued with reasonable promptness. The issue of reasonable promptness was not raised during the issue formulation stage of these proceedings. Accordingly, we do not consider it. Chicago Bridge and Iron Company,

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

UNINSULATED WIRES -- 29 C.F.R. 1910.310(m)

The evidence establishes that wires supplying 110 volt AC power to buttons which controlled the operating handle of a billet furnace had short lengths of insulation missing such that a conductor was exposed at two locations. It was Complainant's contention that employees were thereby exposed to an electrical shock, and the standard was violated for that reason. On this basis, the Judge affirmed. We reverse.

The standard requires that "[a]ll wiring shall be so installed that when completed the system will be free from short circuits and from grounds other than as provided in section 1910.314." The standard was adopted from the National Electric Code of the National Fire Protection Association, 70-1968. n2 The code contained some standards having application to the construction of electrical installations, others that apply to the maintenance of electrical installations, and yet others which apply to both construction and maintenance of such installations. According to its plain terms the standard cited in this case is from the first group. No [*3] other meaning can attach to the words "so installed that when completed." Accordingly, the installation must be free from short circuits and grounds upon completion of its construction, but the standard does not impose a requirement that the installation be maintained in such condition. Complainant does not contend, nor is there any evidence to indicate, that the electrical system in question contained a short circuit or unintended ground after the wiring was installed. Accordingly, we conclude that Complainant has failed to sustain his burden of proof. Armor Elevator Company, Inc., BNA 1 O.S.H.R. 1409, CCH Employ. S. & H. Guide para. 16, 958 (1973).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 36 F.R. 10714 (May 29, 1971).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

ROPE SLING -- 29 C.F.R. 1910.179(j)(2) n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 The standard, in pertinent part, provides:

(2) The following items shall be inspected for defects at intervals as . . . specifically indicated, including observation during operation for any defects which might appear between regular inspections. All deficiencies such as listed shall be carefully examined and determination made as to whether they constitute a safety hazard:

(v) Rope slings, including end connections, for excessive wear, broken wires, stretch, kinking, or twisting. Visual inspection daily; monthly inspection with signed report.

[*4]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent employed a wire rope sling as a choker to drag copper logs weighing up to 1,400 pounds following casting. Complainant's representative observed broken wires in two lays of the sling. He was of the opinion that the strength of each lay was thereby reduced and that employees might have their hands and fingers pierced by the broken wires. Complainant therefore alleged a violation of 29 C.F.R. 1910.179(j)(2).

According to its plain terms the standard requires that an employer (1) inspect his rope slings, (2) examine them for listed deficiencies and (3) make a determination as to whether they constitute a safety hazard. Complainant does not allege, nor is there evidence of record to establish, that Respondent failed to inspect, examine, or make a determination as required by the standard. At most, the record merely establishes the fact that Complainant made a subjective determination that a hazard existed. The terms of the standard allow a contrary determination of the same type by Respondent. What is shown, therefore, is that the parties have off-setting opinions concerning the presence [*5] of a hazard. Under the circumstances Complainant has not sustained his burden of proof. Armor Elevator Company, Inc., supra.

PROTECTIVE CLOTHING -- 29 C.F.R. 1910.132(a) n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The standard provides: Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

An employee of Respondent was engaged in stripping chrome from old tools by dipping them in a vat of muriatic acid. n5 He was not wearing a rubber apron to guard against the possibility that the acid would contact his skin. Accordingly, Complainant alleged a violation [*6] of the cited standard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Muriatic acid is a synonym of hydrochloric acid. Complainant issued the citation on the belief that the vat contained sulfuric acid. Hydrochloric acid and sulfuric acid are capable of producing burns upon contact with human skin. Sax, Dangerous Properties of Industrial Materials, Van Nostrand Reinhold Company, 1968, pp 2, 821, 1129.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The record shows that adequate protective clothing was available for the employee's use, but that Respondent did not require that it be used during the stripping operation. Respondent did require that rubber aprons be worn during a chrome plating operation involving this same vat of acid. Under these circumstances, we conclude that Respondent violated the standard. The fact that Respondent required the protective apron to be worn during the chrome plating operation establishes its knowledge of the hazard presented by the acid and its knowledge that personal protective measures should be employed. See Georgia-Pacific Corp., BNA 1 O.S.H.R. [*7] 1282, CCH Employ. S. & H. Guide para. 16, 458 (1973).

A penalty of $60 was proposed for the violation. A penalty of $20 was assessed because the Judge believed that muriatic acid was less hazardous than sulfuric acid. He concluded that the hazard was of lower gravity than as estimated by Complainant. We affirm.

As indicated infra at note 7, muriatic acid and sulfuric acid can cause burns upon contact. Sulphuric acid produces severe burns whereas the degree of burn produced by hydrochloric acid depends on its concentration. The evidence of record is that Respondent uses "a 20% baume muriatic acid." The baume scale is employed on a hydrometer and is useable to give an indication of specific gravity in degrees. n6 Accordingly, the evidence of record is meaningless concerning the concentration of the acid used by Respondent. It therefore does not lend itself to a finding of gravity under section 17(j) other than to a finding that burns of some degree could be produced. In the circumstances, the Judge's assessment should not be disturbed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Webster's Third New International Dictionary, 187 (1971).

[*8]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

EYE PROTECTION -- 29 C.F.R. 1910.133(a)(1) n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 The standard provides: Protective eye and face equipment shall be required where there is a reasonable possibility of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protection. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Judge held that Respondent was in violation of this standard with respect to two distinct fact situations. One involved the employee working with muriatic acid. This employee was wearing ordinary eyeglasses, but was otherwise not protected against the possibility that acid would get [*9] on his face and into his eyes. The other situation involved a number of machinists in Respondent's machine shop. These employees were wearing safety glasses. The nature of the alleged violation consisted of their failure to also wear side shields.

As to the employee working with muriatic acid, the record establishes that adequate eye and face protection (in the form of safety glasses and face shields) was provided by Respondent. This equipment was available within 20 feet of the employee's work station. Under these circumstances, we conclude that Respondent has fulfilled its responsibility to "make conveniently available" suitable protective equipment. CAM Industries, Inc.,

As to the machinists, Complainant's position is that side shields are required because chips from one machine could enter the eye of the operation of an adjacent machine. The evidence, however, shows that the machines are seven to ten feet apart and are equipped with deflectors to direct any chips downward. Chips fly only four feet away from the machine which generates them.

We hold that these facts do not establish a violation of the standard. The standard [*10] requires that protective equipment be provided when there is a reasonable possibility of injury that such equipment can prevent.

The record at most establishes a remote possibility that side shields will prevent eye injuries to Respondent's machinists.

OXYGEN HOSE -- 29 C.F.R. 1910.252(a)(5)(v)(f) n8

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 The standard provides: Hose showing leaks, burns, worn places, or other defects rendering it unfit for service shall be repaired or replaced.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We have examined the record and have considered the contentions raised by Complainant on review. We affirm the decision of the Judge.

Accordingly, it is ORDERED that the decision of the Judge is modified as follows:

1. that part of the citation alleging a violation of 29 C.F.R. 1910.179(j)(2) (item 2) and the penalty proposed therefor are vacated;

2. that part of the citation alleging a violation of 29 C.F.R. 1910.310(m) (item 5) and the penalty proposed therefor are vacated; and

3. that part of the citation alleging a violation of 29 C.F.R. 1910.133(a)(1) [*11] (item 6) and the penalty proposed therefor are vacated.

In all other respects the decision of the Judge is affirmed.

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

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

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with Commissioner Van Namee's disposition of the items of the citation under review except for the vacating of the citation alleging violation of the Act for failure to comply with the standards at 29 CFR § 1910.179(j)(2) and 29 CFR § 1910.133(a)(1).

I would affirm the Judge's finding that respondent had failed to comply with the standard at 29 CFR § 1910.179(j)(2) for the reasons given in his opinion and would also affirm the Judge's finding of a violation for failure to comply with the standard at 29 CFR § 1910.133(a)(1). n9

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 This standard is set out in Commissioner Van Namee's opinion, p. 4.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I concur with the finding of no violation of this standard as to respondent's machinists, but would affirm the citation as it relates to the employees [*12] using the muriatic acid vat.

The record shows that although eye and face protection was not used by employees, it was provided by the respondent. Commissioner Van Namee finds that this circumstance is sufficient to "conclude that respondent has fulfilled its responsibility," citing Cam Industries, Inc., No. 258 (March 3, 1974).

I dissented in that decision, as I must here, and for the same reasons. The standard requires that personal protective equipment be provided. The respondent did this. By providing the equipment, respondent necessarily acknowledges that a hazard exists. Moreover, I would take official notice of the fact that muriatic acid is capable of causing burns of eyes and skin. The standard's further requirement that "No unprotected person shall knowingly be subjected to a hazardous environmental condition" must be read to impose upon respondent an obligation to see that the provided personal protective equipment be used, or it is meaningless. It is too obvious to belabor that a standard must be read to give meaning to it as a whole. This reading is consistent with the Congressional purpose of making the employer ultimately responsible for compliance with [*13] the Act, even though employees are required by the Act to comply with the standards. S. Rep. 91-1281, 91st Cong. 2d Sess. 16(1970).

Here, it may be fairly inferred that reasonable supervision would not have resulted in the failure to employees to use protective equipment.

MORAN, CHAIRMAN, concurring in part and dissenting in part: I concur except for the finding that the Act has been violated because of failure to comply with the occupational safety and health standard found at 29 C.F.R. § 1910.132(a). I believe that standard (which is set out at footnote 4, supra ) is too vague to be enforced.

An occupational safety and health standard is developed and promulgated because of the existence or potential existence of a condition which is hazardous to the safety or health of workers. The purpose of such standard is to tell employers what they must do to eliminate, reduce, or prevent the hazardous condition. 29 U.S.C. § 652(8) provides that:

The term 'occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes reasonably necessary or appropriate to provide [*14] safe or healthful employment and places of employment.

To meet this definition it is essential that a standard, using clear and comprehensible language, identify the hazard and specify what must be done to prevent its occurrence. Secretary v. California Stevedoring Co.,

Section 1910.132(a) does not do this. It does not specify any "conditions" necessary or appropriate for achieving "safe or healthful employment" nor does it list any "practices, means, methods, operations, or processes" for accomplishing the same. It thus fails to meet the requirements of 29 U.S.C. § 652(8).

As stated in Secretary v. Modern Automotive Service, Inc., 27, 1974), this standard lacks specificity. The identity of a hazard and the requisite protective equipment are left to the subjective determination of the employer. Nothing in this regulation provides any ascertainable standard of conduct to guide the employer in that determination.

This decision thus results in the enforcement of a regulation that fails to inform an employer what he must do to comply therewith. This does not comport with due process requirements. [*15] Where regulations are subject to civil or criminal sanctions, parties against whom such regulations are enforced are entitled to receive fair warning of the conduct required or prohibited. Fleut v. Rosenberg, 302 F.2d 652 (9th Cir. 1962); Jorden v. DeGeorge, 341 U.S. 223 (1951). They are further entitled to be free from the arbitrary application of regulations which are capable of multiple interpretations. Bowie v. City of Columbia, 378 U.S. 347 (1964).

29 C.F.R. § 1910.132(a) falls short of the foregoing requirements. It should therefore be declared null and void due to vagueness.

[The Judge's decision referred to herein follows]

DUVALL, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter referred to as the "Act") to review a citation and proposed penalties issued by The Secretary of Labor (hereinafter referred to as "Complainant") pursuant to Sections 9(a), 10(a), and 17(c) of the Act. The citation for non-serious violation, issued on November 26, 1971, alleges that Nibco of Colorado Division (hereinafter referred to as "Respondent"), an employer engaged in the manufacture [*16] of plumbing fittings, violated 11 occupational safety and health standards promulgated pursuant to Section 6 of the Act. The cited standards relate to plant equipment and operations, including the condition or use of a wire rope sling, an overhead crane, a grinder wheel, electric lines to a billet loader, protective glasses and clothing in furnace, chrome plating and machinist operations, charging of dry chemical fire extinguisher, insulation on oxygen hose and grounding lead for arc welder. The citation was issued on the basis of an inspection by Complainant on November 9, 1971, of a workplace under Respondent's ownership, operation, and control located at LaJunta Airport, LaJunta, Colorado. The citation required various deadlines for abatement of these non-serious violations and a notification of proposed penalty, issued on November 26, 1971, proposed a total penalty of $252 for the alleged violations. By a letter filed with the Commission on December 15, 1971, Respondent contested the citation and notification of penalty issued on November 26, 1971. The parties subsequently filed a complaint and an answer in this matter.

Pursuant to Section 10(c) of the Act, this [*17] case was referred to the Commission on December 15, 1971, and assigned to the undersigned Judge for hearing in accordance with Section 12(e) of the Act. After due notice, a hearing in the case was held on May 2, 1972, at LaJunta, Colorado, with both parties appearing and represented by counsel. No affected employees nor any representative of such employees asserted party status before, at or subsequent to the hearing. At the hearing, Complainant's motion to delete Items No. 1 and 7 from the citation, the related penalties, and corresponding parts of the complaint, was granted by the Judge without objection by Respondent (Tr. 20).

This case arises under Section 5(a)(2) of the Act which provides that each employer (meaning a person engaged in a business affecting commerce who has employees) shall comply with the occupational safety and health standards promulgated under the Act. The standards cited in this case were promulgated under Section 6(a) of the Act by publication in the Federal Register of May 29, 1971 (36 F.R. 10466, et seq. ) and became effective on August 27, 1971, pursuant to the same authority.

The contested items of the citation, including the specific [*18] standards alleged violated, in pertinent part, the proposed penalties, and time allowed for abatement, are as follows:

Item 2. 29 CFR 1910.179(j)(2):

The following items shall be inspected for defects at intervals as defined in subparagraph (1)(ii) of this paragraph, or as specifically indicated, including observation during operation for any defects which might appear between regular inspections. All deficiencies such as listed shall be carefully examined and determination made as to whether they constitute a safety hazard:

(v) Rope slings including end-connections for excessive wear, broken wires, stretch, kinking, or twisting. Visual inspection daily; monthly inspection with signed report.

Alleged violation:

A five foot long wire rope sling used on a hoist above copper pouring area in the smelter casting room had two lays of a three-quarter inch wire rope over 75 percent broken and one lay of a three-quarter inch wire rope over 30 percent broken -- $18.00 -- within 24 hours of receipt of citation.

Item 3. 29 CFR 1910.179(b)(5)

Rated load marking. The rated load of the crane shall be plainly marked on each side of the crane, and if the crane has more than one hoisting [*19] unit, each hoist shall have its rated load marked on it or its load block and this marking shall be clearly legible from the ground or floor.

Alleged violation:

Parallel rail overhead crane used to lift wire rods and tubing in the mill extrusion area had no capacity labeling which was visible from the operator's position -- $9.00 -- within four days of receipt of citation.

Item 4. 29 CFR 1910.215(d)(3):

All contact surfaces of wheels, blotters, and flanges shall be flat and free of foreign matters.

Alleged violation:

Cut off wheel on floor-mounted grinder located above and to the immediate north edge of the copper pouring pit in the smelter casting area had an irregular cutting edge and sides caused by excessive wear -- $9.00 -- within four days of receipt of citation.

Item 5. 29 CFR 1910.310(m):

All wiring shall be so installed that when completed the system will be free from short circuits and from grounds other than as provided in Section 1910.314.

Alleged violation:

The 110-volt AC electric line supplying control voltage to the billet loader control buttons on the billet loader operating handle at the north part of the billet furnace had insulation [*20] missing for at least one-inch in each of two locations, with bare electrical conductor exposed -- $30.00 -- within 24 hours of receipt of citation.

Item 6. 29 CFR 1910.133(a)(1):

Protective eye and face equipment shall be required where there is reasonable probability of injury that can be prevented by such equipment. In such cases employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected persons shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operators present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

Alleged violation:

(a) Billet loader foreman was not wearing eye protection for intense infrared radiation at the billet furnace -- within 24 hours or receipt of citation;

(b) Operator of chrome plating area was not furnished with and was not wearing (1) side shields on protective spectacles, and (2) protective face shield -- within four days of receipt of citation;

(c) Eleven machinists working in the machine shop were not [*21] wearing safety side shields on their safety glasses -- within 24 hours of citation -- total penalty for this item $60.00.

Item 8. 29 CFR 1910.157(a)(1):

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

Alleged violation:

Dry chemical fire extinguisher No. 26P located in the smelter, billet casting area was under-charged by 85 pounds per square inch -- $15.00 -- within 72 hours of receipt of citation.

Item 9. 29 CFR 1910.132(a):

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

Alleged violation:

Operator of the chrome plating area was not provided [*22] with protective clothing -- $60.00 -- within 30 days of receipt of citation.

Item 10. 29 CFR 1910.252(a)(5):

(v) Hose and hose connections. (f) Hose showing leaks, burns, work places, or other defects rendering it unfit for service shall be repaired or replaced.

Alleged violation:

Oxygen hose on oxy-acetylene unit located in the maintenance area was badly cracked and had at least two cracks in the outer rubber coating extending to the underlying cord -- $9.00 -- within 4 days of receipt of citation.

Item 11. 29 CFR 1910.252(b)(4):

(ix)(c) Work and electrode lead cable should be frequently inspected for wear and damage. Cables with damaged insulation or exposed bare conductors shall be replaced. Joining links of work and electrode cables shall be done by the use of connecting means shall have insulation adequate for the service conditions.

Alleged violations:

Insulation on grounding lead for arc welder No. 5529 located in the maintenance area was missing at 2-inch long areas, exposing the underlying electrical conductor -- $6.00 -- within 24 hours of receipt of citation.

Apart from the constitutional issues reserved by the Respondent in its brief, the main issues [*23] to be resolved herein are: (1) whether the Respondent violated the occupational safety and health standards as alleged in Item Nos. 2 thru 6 and 8 thru 11 of the citation issued on November 26, 1971; and (2) whether the penalties proposed for said alleged violations are reasonable and appropriate under Section 17 of the Act.

FINDINGS OF FACT

The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

1. Respondent is an Indiana Corporation with its home office located in Elkhart, Indiana and a place of business (workplace) located at the LaJunta Airport, LaJunta, Colorado (Tr. 5, Citation).

2. As stipulated by the parties (Stipulation, Tr. 5-6):

(a) Respondent is an employer within the definition under the Occupational Safety and Health Act, and is in engaged in a business affecting commerce, and was at the time of the alleged violation;

(b) The Commission has jurisdiction of this matter;

(d) The Respondent has no history of previous violations under the Act;

(e) Respondent has an average [*24] daily number of employees of approximately 250;

(f) The citation and notice, and time and place of hearing, and other papers required by the Commission to be filed in this matter have been filed on the employee's bulletin board and the citation was also posted at each place of violation;

(g) The citation and notice of proposed penalty were properly served;

(h) There is no contest regarding the abatement dates contained in the original citation.

3. On November 9, 1971, Mr. Harry G. Hutton, a compliance officer with the United States Department of Labor, Occupational Safety and Health Administration, conducted an official inspection of Respondent's workplace located at LaJunta, Colorado (Tr. 9), accompanied by Respondent's personnel manager (Tr. 47).

4. Based on Mr. Hutton's report of inspection, on November 26, 1971, Complainant issued a citation for non-serious violation and notification of proposed penalty charging the Respondent with violation of 11 specific occupational safety and health standards under Section 5(a)(2) of the Occupational Safety and Health Act of 1970, at its LaJunta, Colorado workplace, with prescribed dates for correction of said alleged violations [*25] and proposed penalties as previously noted.

5. The wire rope sling specified in citation item 2 had a number of wires broken in various lays, with one particular lay having 75 percent of the wires broken and another lay with 30% of the wires broken (Tr. 9-10).

6. By inspector Hutton's measurement the wire rope was three-quarters of an inch in size and had 6 lays and was used to lift hot metal containers, hot metal ladles (Tr. 22).

7. A purchase order to replace the subject wire rope sling was placed on July 27, 1971 (Respondent's Exhibit R-1). Based on manufacturer's specifications, this rope sling had a capacity of 4.86 tons and a breaking strength of 15.8 tons; the maximum load for this sling at Respondent's workplace was 1,400 pounds. Sixty broken wire rope slings had been replaced by Respondent since 1966 and the lays in such slings are nearly always changed when they are broken (Tr. 54-56).

8. The cited crane was not marked as to its capacity (Tr. 11, 61).

9. The capacity of the cited crane is five tons and the rope slings used by the crane have a capacity limit of 4,000 pounds. Only the operator on each shift used the crane to move copper extrusions from place to [*26] place, without passing over any people working at all, and the crane operators were aware of the crane's capacity (Tr. 56-57).

10. The cited wheel on a floor mounted grinder, located above and to the north edge of the copper pouring pit in the smelter casting area, was worn on its edge and back bonding and was quite irregular (Tr. 11-12).

11. The cited wheel was used to grind the surface plate of copper samples taken from the furnace; it was not used to cut castings. The wheel was of fibre construction, and will wear down at slow rate, particularly where the copper sample is pushed into the face of the wheel in order to get a flat surface on the convex portion of the sample. The cited wheel had a slight curve and was usable for many more times. This particular type of wheel did not load up with copper or any foreign matter in its surface (Tr. 70-72; 79).

12. The electric lines supplying 110 volt AC control voltage to the control handles on the billet loader at the north part of the billet furnace had insulation missing in two locations, exposing the bare conductor (Tr. 12-13, 21).

13. Respondent's plant superintendent sent an electrician to replace the cited wires; [*27] no sample of the wires was retained and the superintendent was not sure whether any bare wire was exposed. There were four conductors within the cited wires, each individually insulated with an outer layer covering all of those, then a braided cord, and finally a rubber outer covering. There was no short circuit in these electric wires; if a wire was bare at the location cited (12-18 inches above operator handle), there would be a danger of injury from electrical shock if a person touched the bare wire, but such a person would have to mount a stool or ladder and actually touch such a bare spot in order to be so injured (Tr. 47-48, 72-74, 76-77, 78-79).

14. At the request of the personnel manager, Respondent's mill supervisor, Mr. Percy Montanez, in the presence of inspector Hutton, opened the billet furnace door by pushing the loading tongs. Mr. Montanez was not wearing tinted safety glasses at the time. There being three employees there, the loader, the unloader, and a press operator, Mr. Montanez opens the furnace door only 2 or 3 times a day, at which times he normally wears a pair of colored safety glasses with face shield which he keeps in his desk located about [*28] ten feet away. The furnace was at low flame, as is customary at 11:30 a.m., one hour before the lunch period, and Mr. Montanez was standing in front of the loading tongs when he opened the door, from which point a fire is visible within the furnace (Tr. 39-42).

15. Mr. Holwerda requested Mr. Montanez to open the furnace door in order to show the inspector the operation. At the time of the inspection there was no loading of the furnace going on and the billets in there would have stayed at the proper temperature for a while (Tr. 44-46, 49-50).

16. The operator in the chrome plating area was stripping chrome from old tools by dipping them in a vat of muriatic acid, not sulfuric acid. The operator was wearing glasses without safety side shields and no face shield, although the latter was available from the crib located next the the chrome plating area about 20 feet away. Muriatic acid used in the stripping process could have splashed on the operator (Tr. 50-51).

17. The chrome stripping and chrome plating processes are done in the same area by the same employee as and when needed (Tr. 51-52).

18. Eleven machinists in the machine shop operating various types of machines, including [*29] lathes and drill presses, were wearing standard safety glasses without side shields (Tr. 14-15).

19. The cited machines were probably 7 to 10 feet apart; all had shields and deflectors to direct the shavings on a generally downward direction to the floor, where the shavings or chips could be found as far as 4 feet from the originating machine and within 3 feet of the machine next to it. While each machinist is assigned to a particular machine, he does walk around and there is a possibility that chips from an adjacent machine could reach eye level (Tr. 58-59, 61-62, 64).

20. The desired pressure in the cited dry chemical fire extinguisher is 175 p.s.i.; such a fire extinguisher not fully charged presents a hazard in the event of fire (Tr. 15, 26).

21. Respondent's maintenance man, Augustus Gearhart, refilled the cited fire extinguisher the night before the inspection as it had been used the prior day. When the same extinguisher (P-26) was brought back to him after the inspection, the pressure gauge was in the low part of the white portion of the gauge. The gauge is calibrated at zero, 175, and 350 with the white portion of the gauge, being the acceptable range, taking [*30] up about 1/16 of the full dial, with 175 in the center of it. In refilling the fire extinguishers Mr. Gearhart normally checks for malfunctions and found no malfunction of extinguisher P-26; when the extinguisher was brought to him prior to the inspection, the gauge read zero and when the extinguisher was brought back to him after the inspection he brought the air pressure right up to 175 pounds. The white area on the gauge represented pressures between 170 to 180 (Tr. 32-39).

22. The employee in the chrome plating area was not wearing the standard rubber apron, ordinarily used when working with acids in order to avoid skin damage directly or through splashes on the clothing (Tr. 16, 25-26).

23. The operator in the chrome plating area was wearing his normal work clothes (cotton shirt and trousers), protective glasses, and probably rubber gloves. Face shields and aprons, including plastic aprons, were available from the crib located within 20 feet of the chrome plating area. The operator in question must have been aware of the availability of this protective equipment because all employees are instructed at the time of hiring and during the course of employment concerning [*31] the proper safety equipment and safety procedures and any employee who refuses to wear such equipment is no longer employed.

24. Muriatic acid (20% baume) is a diluted form of acid which only attacks chrome (Tr. 58).

25. An oxy-acetylene unit located in the maintenance shop on the west end of Respondent's building had an oxygen hose whose outer rubber insulation was cracked down to the innercord in at least two places; the hose had an outer rubber insulation, and underlying cord, and an innerlining of thin rubber. There was no evidence of an oxygen leak; the cited hose was not in use at the time of inspection, but had been in use (Tr. 16-17, 27-28).

26. The cited oxygen hose was cracked and worn but still useable. The innercord is tough and would take a sharp knife to cut; take a puncture or somebody running over the hose to make it lead; over a long period of time normal wear and tear probably would cause an oxygen hose to leak, say within nine months to a year, and this particular hose had been in use approximately 6 months (Tr. 66-69).

27. The work grounding lead on an arc welder had insulation missing at at least two locations with the underlying conductor [*32] exposed. Such a condition can cause a hazard of arcing from the contact of the grounding lead with any other conductor which could lead to eye injuries or shock, particularly under wet conditions. While this lead is commonly referred to as a ground lead, it is actually a work lead which completes the circuit for the welding itself (Tr. 17-19; 28-29).

28. At the time of inspection the 1968 National Electrical Code was in effect (Tr. 28).

29. The function of the grounding lead is to ground the equipment; the electrode-lead is the one for the actual work piece and is fully insulated, while the grounding lead is usually a bare clamp-on (Tr. 74-78).

30. As stipulated by the parties (Tr. 10-13), the formula used in computation of the proposed penalties for the alleged violations included an unadjusted amount based on the gravity of the alleged violation, no reduction for size of business, 20 percent reduction based on a safety program in good faith, 20 percent reduction for no previous history of violations under the Act, and a 50 percent reduction for assumed abatement of the violation within the period of time allowed for correction.

DISCUSSION

The evidence of record substantially [*33] establishes that Respondent is an employer within the meaning of Section 3(5) of the Act and that this case is properly within the jurisdiction of the Commission under Section 10(c) of the Act.

Respecting citation item 2 of the alleged violations, 29 CFR 1910.179(j)(2) requires the employer, on a daily visual inspection basis, to determine whether broken wires in rope slings constitute a safety hazard in the operation of an overhead crane. This standard does not make a sling with any broken wires a safety hazard per se, but requires the employer to inspect such a sling daily to determine whether its condition renders it a safety hazard. Inspector Hutton's unrebutted testimony establishes that 75% of one lay and 30% of another lay in a 6 lay wire rope were broken with consequent reduction in strength of the rope and increased hazard from wire ends to the hands of employees handling the rope sling, even with protective gloves. The credible testimony of Mr. Leon Miller, Respondent's plant manager, indicated that the cited rope sling with broken lays was covered by a purchase order for a new sling dated July 27, 1971, with a delivery date (stated on purchase order) of [*34] August 9, 1971 (Finding of Fact 7). It is unclear from this testimony, and not explained or even mentioned by either parties' counsel in their briefs, whether prior to the inspection date (November 9, 1971) Respondent had earmarked the cited rope sling for replacement, had simply placed a regular stock order generally, or had on or about August 9, 1971, installed a new sling the lays of which had thereafter broken. I conclude that the latter inference is the more reasonable to be drawn in context of the entire record, thus tending to reinforce Respondent's argument that it had not, as of November 9, 1971, deemed the cited wire rope to be a hazard.

The extent of wire breakage, compared with the stated load capacity and breaking point of the wire rope, does not appear to constitute a lifting strength hazard, even when the specific requirements of hoisting ropes (29 CFR Section 1910.179(h)(2)) are used for computation purposes. While the major thrust of the cited standard in relation to broken wires may well be the effect such condition has on lifting strength of the wire rope, the scope of "safety hazard" as used in the standard is not defined and, therefore, cannot be [*35] narrowly construed contrary or inconsistent with the spirit and broad preventive purposes of the Act. Thus, Complainant's contention that the prime safety factor here involved the exposed wire ends which constitute a hazard to employees handling the sling (Tr. 23-24) is not unreasonable. Apart from the argument in Respondent's brief that "past history of use of such slings without incident or injury from the broken wire strands would weigh heavily in the decision not to replace the sling when any hazard could be eliminated by use of gloves to stop minor skin puncture by wire ends" (Respondent's Brief, page 7), the only evidence of record respecting this safety factor is Inspector Hutton's unrebutted testimony that such a condition presents a hazard because broken wires can readily pierce fingers and hands, even through gloves (Tr. 10). Accordingly, I believe Complainant has sustained its burden of proof on this alleged violation.

Respecting citation item 3, 29 CFR Section 1910.179(b)(5) requires that every crane have its rated load plainly marked on each side and the evidence on this record clearly establishes that, notwithstanding its operator training and control program and [*36] procedures, the cited crane was not so marked (Finding of Fact 8).

Respecting citation item 4, 29 CFR Section 1910.215(d)(3) requires that wheels, such as the cited grinder wheel, have a contact surface which is flat and free of foreign matter. The alleged violation here is described as a "cut off wheel on floor mounted grinder" with "an irregular cutting edge and sides caused by excessive wear." The very description of the alleged violation, read in the light of Inspector Hutton's testimony that the cutting edge and sides of the cut-off wheel were used to cut copper castings (Tr. 11-12, 24), compared with Plant Manager Miller's testimony that the type of wheel cited was a disc grinder wheel, not a cut-off wheel, used to smooth the oxide on a button (sample) of copper down to bare metal for the purpose of a conductivity test to check the phosphorus content of the copper, and not to cut castings (Tr. 62-63), suggests confusion in the identity of the wheel being cited, conceded by Complainant in its brief (page 3). In addition to this basic confusion, the testimony of Mr. Miller and Plant Superintendent Morehead, who was personally familiar with the grinding process involving [*37] the cited wheel, substantially rebutted the thrust or intent of Inspector Hutton's testimony that the face of the wheel was so irregular and worn as to create a hazard of the fiber wheel flying apart (Tr. 59-60, 62-63).

While Mr. Morehead admitted that from time to time, as it wears out, little bits of abrasive and parts of the fiber bonding that hold it fly out from the cited wheel (Tr. 76), there was no foreign matter in the surface of the wheel since it does not "load up" with copper and is used for that very purpose (Tr. 79). In sum, I do not believe Complainant has sustained its burden of proving Respondent's alleged violation of the standard cited in item 4.

Respecting citation item 5, 29 CFR Section 1910.310(m) requires that wiring be so installed as to be free from short circuits and from grounds as provided in Section 1910.314. The uncontroverted testimony of Personnel Manager Holwerda (who accompanied Mr. Hutton on the inspection) (Tr. 47-48), and Mr. Moorehead (Tr. 73, 78) was that the cited wiring system did not have a short circuit. Complainant apparently construes the standard as prohibiting any wiring condition which creates a substantial risk of short [*38] circuit or unpermitted grounding and such a liberal construction is reasonable and consistent with the purposes of the Act. On this basis, Inspector Hutton testified that this standard was violated in that the wires carrying 110 volts AC current to the operating handles of the billet loader to the furnace were completely bare of insulation at two points, which condition could cause a short or injure an employee who might come in contact with the bare spots (Tr. 13, 21-22).

The testimony of Mr. Holwerda, who saw the condition of the wires on the inspection, is doubtful since his statement that the wire was not bare (Tr. 48) was weakened by his later statement that he could not say whether the bare wire was showing, although he did recall seeing that the outside cover of the wire was missing at a spot (Tr. 48). Mr. Morehead also could not say for sure whether the wire was bare at any point, although he had sent an electrician to replace the wire after the inspection (Tr. 72). Mr. Morehead also stated that the cited wire, consisting of four conductors, had just prior to replacement, been taped without resulting in a short (Tr. 72, 78); that while there was danger of electrical shock [*39] from bare wires, that danger was remote here because of the location of the cited wires, which required getting up on a stool or ladder in order to touch the portion of the wire cited (Tr. 73-74, 76). Complainant takes the position that bare wires carrying 110 volts in any location where those wires can be touched by an employee constitutes a hazard in violation of the cited standard (Complainant's Brief, page 4). I am inclined to agree, since such touching by an employee or other person could constitute a short circuit or grounding prohibited by the Act.

Respecting citation item 6(a) there is some conflict in the testimony as to what action Mr. Montanez actually took at Mr. Holwerda's request. Mr. Montanez states that he merely opened and closed the charging door of the furnace (Tr. 39-40), whereas Inspector Hutton asserts that, in addition, he removed one of the hot copper billets from the furnace and placed it into an extruding dye (Tr. 14, 41). In any event, the thrust of the alleged violation of 29 CFR Section 1910.133(a)(1) is that Mr. Montanez exposed himself to the intense infrared emanating from the furnace by opening the charging door without tinted eye protection [*40] (Tr. 14). The testimony that such action was not part of his normal duties, that he normally wore tinted eye protection when he had occasion (2 or 3 times a day) to open the charging door, and that such protective eye equipment was available in his desk just 10 feet away (Tr. 40-43) does not avoid the regulatory command that "employees shall use such protectors" whenever "there is a reasonable probability of injury that can be prevented by such equipment" and that "no unprotected person shall knowingly be subjected to a hazardous environmental condition."

Absent any showing of circumstances in the nature of entrapment, Respondent's responsibility under this cited standard should turn on whether there was a "reasonable probability of injury" here. Inspector Hutton testified that at the time Mr. Montanez opened the furnace door (11:30 a.m.), at a point where the fire was visible, the billet removal and extrusion process was in operation (Tr. 14), the latter corroborated by Mr. Holwerda (Tr. 49). Mr. Montanez stated that there was no billet loading going on at the time and that there was no "hot billet" there at all (Tr. 41). Other than testimony that the furnace was at [*41] low flame (since 11:00 a.m., one hour before lunch) (Tr. 41, 49-50), there is no evidence of record directly rebutting Inspector Hutton's testimony that the furnace fire emanated infrared rays warranting tinted eye protection (Tr. 14). According to Mr. Holwerda, the billets in the furnace remained at the proper temperature even at low flame (Tr. 49).

The record does not show whether the inspector himself, who may have looked at the fire, was wearing tinted protective glasses (Tr. 42), but all the other employees in the area did have such eye protection (Tr. 14). While Mr. Montanez stated that he was not going to look in the furnace himself, but was simply opening the charging door to show the inspector, as requested (Tr. 41), substantial evidence of record shows a reasonable probability of injury from the glare of the furnace fire which tinted eye protection would prevent. However, under all the circumstances I am disinclined to assess a monetary penalty for this monentary technical violation of the standard.

Respecting citation item 6(b), Complainant has the burden of proving that the operator performing the chrome stripping operation, involving dipping tools in muriatic acid, [*42] was exposed to a reasonable probability of injury that could be prevented by wearing protective eye and face equipment and/or that Respondent did not make conveniently available a type of suitable protector, if required. Mr. Holwerda was not qualified and did not testify as to the properties of muriatic acid which he would not want splashed on him even though he thought it was not strong enough to hurt him if it did. Mr. Leon Miller, Respondent's Plant Manager, testified that muriatic acid, which only attacks chrome plating, was 20% of an acid diluted in water; that he had no knowledge over the past 5 to 6 years of any accident or injury caused by exposure to this acid (Tr. 58). The fact that the operator wore rubber gloves in this operation (Tr. 47) tends to indicate that some protection of the eyes, a more sensitive organ, was needed to prevent possible injury from the muriatic acid, even though the injury might be less damaging than that from sulfuric acid.

In addition to a hazard, the record shows that the operator was not wearing protective glasses with side shields or face shield. Mr. Holwerda's statement that the operator wore glasses all the time did not clearly [*43] establish that the operator was wearing the suitable protective glasses with side shields or a face shield (Tr. 47). Mr. Holwerda's testimony did show that face shields were conveniently available for use by the operator (Tr. 47). Mr. Miller stated that while the chrome-plating area was a required area for safety equipment, side shields for safety glasses were not made available (Tr. 57-58). Accordingly, assessment of a reasonable penalty for this violation would seem proper.

Similarly, citation item 9, relating to protective clothing for the same operator in the chrome plating area (who performed both processes of chrome plating and chrome stripping), (Tr. 16, 25-26), may be affirmed on the basis of prior evidence adduced in reference to citation item 6(b) that there was a reasonable probability that muriatic acid would be injurious to the skin and Mr. Holwerda's testimony that although protective gloves and aprons were conveniently available, the operator here, working in a "required" area, wore no apron as protection against acid which might be splashed on his clothing and thus contact his skin (Tr. 47, 50, 57). Mr. Holwerda's distinction between the stripping and plating [*44] processes appears irrelevant in view of his testimony that the same employee performed both processes. However, the fact that the acid here involved was muriatic, which I infer from the record was less hazardous than sulfuric acid, the gravity of this violation is less serious and the proposed penalty should be reasonably reduced accordingly.

Respecting citation item 6(c), while the machines in question had a number of guards to avoid employee injury from flying metal chips and the machinists in question were equipped with safety glasses without side shields, the testimony of plant manager Miller tends to corroborate Inspector Hutton's report that there was a reasonable probability of injury from flying chips from adjacent machines which could be prevented by use of side shields, which Respondent did not make available with its safety glasses (Tr. 58).

The issue determinative of citation item 8 is whether the pressure gauge of the cited portable fire extinguisher was fully charged within the meaning of 29 CFR Section 1910.157(a)(1) on November 9, 1971. Inspector Hutton testified that based on his interpolation of the position of the pressure gauge needle relative to the [*45] zero and 175 p.s.i. calibrations on the face of the gauge the cited extinguisher was charged at 90 p.s.i. on November 9, 1971, whereas the indicated desired minimum pressure was 175 p.s.i. Maintenance man Gearhart, who refilled the cited extinguisher just before and just after the inspection and found it functioning properly, as part of his regular duties, testified that on November 9, 1971, the pressure gauge needle was on the low part of the white (safe) portion of the gauge, which portion he believed covered a range between 170 p.s.i. and 180 p.s.i. Mr. Gearhart further stated that while "they" prefer to have it right on 175 p.s.i. (in the center of the white portion of the gauge), so long as the needle is in the white portion the pressure is in safe range (Tr. 33).

Given the substantial variance between the testimony of Mr. Hutton and Mr. Gearhart as to the actual pressure indicated by the gauge at the time of inspection, I cannot conclude that Complainant has sustained his burden of proof. While the evidence did show that the pressure was less than 175 p.s.i., the desired minimum, to rule that any pressure less than 175 p.s.i. was in violation of this standard would [*46] tend to nullify the purpose of the gauge in showing a narrow white or safe range upon which an employer could and did reasonably rely and would also tend to impose an unnecessarily onerous maintenance burden on the employer.

The issue posed by citation item 10 is whether the cited oxy-acetylene hose showed "leaks, burns, worn places, or other defects rendering it unfit for service" within the meaning of 29 CFR Section 1910.252(a)(5)(v)(f). Based principally on Mr. Enteman's testimony, as supervisor of the welding department with 16 years experience in equipment of the cited type, I cannot find on the evidence of record that the cited oxygen hose was unfit for service. Complainant's argument that the outside layer being cracked to the cord increased the hazard of oxygen leak and fire because of faster deterioration of the innerlining when exposed to oxygen lacks persuasiveness in view of Mr. Enteman's opinion that the hose was still useable and safe after 6 months of use, that the outside of the hose would wear out before the inside, and that it would take more than normal wear and tear to cause a leak in such a hose in less than 9 months of use by Respondent. While the danger [*47] of fire from a leaking oxygen hose may be great, as stated by Mr. Hutton, Mr. Enteman indicated that Respondent had never had a fire from such a cause, although they had had a leak in a hose previously (Tr. 67).

The alleged violation in citation item 11 appears to relate to 29 CFR Section 1910.252(b)(4)(ix)(c), which requires that work and electrode lead cables with damaged insulation or exposed bare conductors be replaced. There was considerable confusion at the hearing as to which of the three lead cables pertinent to the welding unit (Tr. 74) was in issue. Respondent seems to be contending that the citation and the standard are unduly vague and ambiguous in that the citation referred to "insulation on grounding lead for arc welder #5529" whereas the cited standard related to "work and electrode cables" and it is standard industry practice under the National Electrical Code not to insulate equipment grounding leads, as distinguished from the work ground lead and the power-source lead (Tr. 74-75). Notwithstanding the definitional confusion (Mr. Hutton identified the cited lead as the "work grounding lead," as distinguished from the "grounding lead" for the unit itself [*48] which required no insulation (Tr. 17); Mr. Morehead defined the "grounding lead" as the equipment lead and the "electrode lead" as the work lead, i.e., the lead to the piece of metal being welded), reading the citation in light of 29 CFR Section 1910.252(b)(4)(ix)(c) (the only subpart of the cited standard relating to cable insulation) and the aforestated well-known standard industry practice, Complainant could not have reasonably concluded that the citation related to the equipment grounding lead (which requires no insulation). As between the two remaining leads, the cited standard's reference to "work and electrode" leads would seem to narrow the citation to the work lead since Mr. Morehead testified that the electrode lead was the work lead (Tr. 74). Under these circumstances I cannot find as a matter of law that the nature of this violation was described in the citation with insufficient particularity to comply with Section 9(a) of the Act or that it was so vague and ambiguous as to constitute insufficient notice of the violation.

As to the merits of the citation, Complainant adduced no evidence of record to rebut inspector Hutton's testimony that the work lead had [*49] insulation missing at two places, exposing the underlying conductor, a type of wear or damage which would appear to come within the purview of the cited standard. It is noted that Complainant's counsel posed no questions concerning this alleged violation at the hearing to Mr. Holwerda, who accompanied the inspector and who kept notes on everything Mr. Hutton pointed out (Tr. 44).

The opinion of Mr. F.C. Saacke, Chairman ANSI-Z 49.1 Committee, Safety in Welding and Cutting, in his letter of June 5, 1972, submitted by Respondent's Counsel by letter dated June 12, 1972, has, without objection, been received and considered in connection with citation item 11. However, even if "the present requirement to replace work (ground) cables with exposed bare conductors is an oversight" which may be soon corrected, I am bound by the standards existing on November 30, 1971, in deciding this case.

Respecting the penalties proposed for the above sustainable citation items, there is substantial evidence that, except for the proposed penalty in citation item 6, which proposed penalty should be reduced for reasons set forth above relating to item 6(a), the proposed penalties for citation items 2, [*50] 3, 5, 8, 10 and 11 are not inappropriate or unreasonable under Section 17 of the Act, considering the size of Respondent's business (250 employees on daily average), the gravity of the violations (non-serious), the Respondent's good faith (safety program) and history of violations under the Act (none) (Tr. 10).

Finally, respecting the constitutional arguments made by Complainant in its brief, I am constrained to comment briefly even though these issues are reserved. The penalties prescribed in the Act (Section 17) for both serious and non-serious violations are clearly civil and not criminal in nature. The Act also guarantees the right to a hearing in all contested cases (Section 10) and requires prompt and reasonable notice of all violations (Section 9). In my view, these procedural safeguards, among others, including the requirement that Commission proceedings comply with the Federal Rules of Civil Procedure and the Administrative Procedure Act, substantially satisfy the constitutional requirements of fairness and due process.

CONCLUSIONS OF LAW

1. Respondent is and, at all times material hereto, was an employer within the meaning of Section 3(5) of the Act, being [*51] engaged in a business affecting commerce who has employees.

2. Respondent is and, at all times material hereto, was subject to the requirements of the Act, including Section 5(a)(2), and the standards duly promulgated thereunder.

3. Pursuant to Section 6 of the Act, by publication in the Federal Register of May 29, 1971 (36 F.R. 10466, et seq. ), the Complainant duly promulgated the following occupational safety and health standards, set forth in the Code of Federal Regulations, Title 29, which became effective on August 29, 1971: 1910.179(j)(2); 1910.179(b)(5); 1910.215(d)(3); 1910.310(m); 1910.133(a)(1); 1910.157(a)(1); 1910.132(a); 1910.252(a)(5); 1910.252(b)(4).

4. The Commission has jurisdiction of the parties and the subject matter herein under the provisions of Section 10(c) of the Act.

5. The citation for non-serious violation, notification of proposed penalty, notice of contest and all pleadings in this matter were properly served or posted in accordance with the notice and service requirements of the Act, including Section 9, and the pertinent regulations duly promulgated thereunder, including Section 2200.7 of the Commission's Rules of Procedure [*52] (29 CFR Part 2200; 36 F.R. 17409, 17410, August 31, 1971).

6. Complainant has established by substantial evidence of record that on November 9, 1971, Respondent violated the occupational safety and health standards set forth at 29 CFR 1910.179(j)(2), 1910.179(b)(5), 1910.310(m), 1910.133(a)(1), 1910.132(a), and 1910.252(b)(4). Accordingly, items 2, 3, 5, 6, 9 and 11 of the citation should be affirmed.

7. Considering the provisions of Section 17(c) and (j) of the Act, the penalties proposed by Complainant, as modified below, are appropriate:

Citation item 2	18.00
Citation item 3	9.00
Citation item 5	30.00
Citation item 6	40.00
Citation item 9	20.00
Citation item 11	6.00

Accordingly, Respondent should be assessed a total penalty in the amount of $123.00.

8. Complainant has not established by substantial evidence of record that on November 9, 1971, Respondent violated the occupational safety and health standards set forth at 29 CFR Section 1910.215(d)(3), Section 1910.157(a)(1), and Section 1910.252(a)(5). Accordingly, items 4, 8, and 10 of the citation, and the corresponding proposed penalties of $9.00, $15.00, and $9.00, respectively, should be vacated. [*53]

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, good cause appearing, it is hereby ORDERED, that:

1. Complainant's citation for non-serious violation issued on November 26, 1971, be and hereby is affirmed with respect to citation items 2, 3, 5, 6, 9, and 11.

2. Complainant's notification of proposed penalty issued on November 26, 1971, be and hereby is affirmed with respect to citation items 2, 3, 5 and 11 in the amounts of $18.00, $9.00, $30.00, and $6.00, respectively, and modified with respect to citation items 6 and 9 in the amounts of $40.00 and $20.00, respectively, for a total assessment of civil penalties against the Respondent in the amount of $123.00.

3. Complainant's citation issued on November 26, 1971, with respect to citation items 4, 8, and 10, and the corresponding proposed penalties of $9.00, $15.00, and $9.00, respectively, contained in the notification of proposed penalty issued on November 26, 1971 be and hereby are vacated.