Docket No. 920

GENCO, INC.

OSHRC Docket No. 920

Occupational Safety and Health Review Commission

October 12, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision issued by Judge Harold A. Kennedy vacating Complainant's citation charging 13 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"). The Judge concluded that vacation was appropriate since the Secretary, through his authorized agents, had failed to comply with the provisions of section 8(a) of the Act n1 by conducting an inspection prior to presenting the proper credentials to the owner, operator, or agent in charge of Respondent's worksite.

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n1 This section provides, in pertinent part, as follows:

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

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

(2) to inspect and investigate . . . any such place of employment . . .

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The issues on review were (1) whether section 8(a) is jurisdictional requiring that the citation be vacated; (2) if section 8(a) is not jurisdictional, whether the evidence obtained prior to the presentation of credentials should be suppressed on the basis of an unauthorized inspection or illegal search of Respondent's workplace; and (3) whether the Judge committed reversible error by declining to make findings from which the question of waiver could be determined.

In response to this direction for review, Complainant submitted a document styled "Notice of Withdrawal" in which he stated that he was withdrawing the citation and penalty proposed. In the circumstances of this case, however, Complainant has no power unilaterally to withdraw the citation.

Both section 12(g) of the Act and Commission Rule 2(b) (29 CFR 2200.2(b)) provide that in the absence of a specific Commission rule, proceedings before the Commission shall be in accordance with the Federal Rules of Civil Procedure. Since we have adopted no rule regarding the withdrawal of a citation, the provisions of Federal Rule 41(a)(2) n2 have particular application.

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n2 In pertinent part the Rule is as follows: ". . . an action shall not be dismissed at the [complainant's] instance save upon the order of the court and upon such terms and conditions as the court deems proper . . .".

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Respondent has been put to the expense of a trial and has incurred the costs usually incident thereto. It was only after review was directed that Complainant decided he should withdraw. In his "Notice of Withdrawal" (which we treat as a motion to withdraw) he expressly concedes violations by his compliance officer of his own regulations. He states that equity would be served by vacation. We agree.

In the circumstances we do not reach the issues on review. The interests of Justice are best served by vacating the citation with prejudice.

Accordingly, it is ORDERED that the citation be and the same is hereby vacated with prejudice.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting Citation No. 1 issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The citation, which contains 13 charges called "Items," alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Honolulu International Airport, the Respondent has violated Section 5(a)(2) of the Act n1 by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

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n1 Section 5a(2) provides that each employer subject to the Act "shall comply with occupational safety and health standards promulgated under this Act."

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The citation was issued on April 27, 1972. By letter dated April 28, 1972, the Acting Area Director of the Department of Labor's Honolulu Office of the Occupational Safety and Health Administration (OSHA) advised Respondent that the Secretary proposed penalties for each of the alleged violations except for one item (No. 10). The table below sets forth a description of each alleged violation, the prescribed abatement date and the penalty proposed for each item.

			Proposed
Item			Abatement	Proposed
No.	Standard Cited n2	Description	Date	Penalty
1.	29 CFR	a. Rockwell table saw,	4-28-72	$35.
	1926.304(f)	9 in., Serial No. 9PA-
		56C4D481, saw blade
		unguarded, in saw
		yard area.
		b. Rockwell radial saw,
		18 in., Serial No.
		69111829, saw blade
		unguarded, no anti-
		kick back device, in
		saw yard area. n3

2.	29 CFR	Rockwell radial saw,	4-21-72	$35.
	1926.402(a)(10)	Serial No. 56C34T-
		14F, power cord
		cracked and
		deteriorating,
		exposing wiring, in
		saw yard area.

3.	29 CFR	Employee performing	4-17-72	35.
	1926.28(a)	ripping ping operation
		on Rockwell radial
		saw, Serial No.
		69111829, not wearing
		eye protection, in saw
		yard area.

4.	29 CFR	Employee descending	4-17-72	35.
	1926.21(b)(2)	single cleated 12 ft.
		ladder in stairway
		manner facing
		forward, carrying skill
		saw and hand saw in
		one hand (first deck to
		lower level in saw yard
		area). n4
5.	29 CFR	No guard railings	4-19-72	$175.
	1926.500(d)(1)	around outside
		perimeter of first
		deck, total area
		approximately 600
		lineal feet.
6.	29 CFR	Unguarded floor	4-17-72	70.
	1926.500(b)(1)	openings
		approximately 6' X
		36' X 10' in depth,
		three separate areas
		on first deck.
7.	29 CFR	One each, oxygen and	4-17-72	35.
	1926.350(a)(9)	acetylene cylinders
		(full) standing upright
		and not secured to
		prevent falling,
		outside job site office.
8.	29 CFR	Scrap wood and waste	4-21-72	35.
	1926.25(a)	materials scattered
		about working areas,
		lower deck, saw yard.
9.	29 CFR	Mobile scaffold 6 ft.	4-18-72	35.
	1926.451(e)(4)	from ground level not
		provided with
		platform or guard
		rails (used by
		employee for cement
		grinding operation,
		lower level).
10.	29 CFR	Extension power	4-18-72	None
	1926.402(a)(5)	supply cord spliced
		and taped together
		(used by employee
		operating portable
		grinder on lower
		deck).
11.	29 CFR	"No Smoking or Open	4-18-72	35.
	1926.151(a)(3)	Flame" signs not
		posted in gasoline
		storage area.

12.	29 CFR	No fire extinguishers	4-17-72	$35.
	1926.152(d)(2)	or fire fighting
		equipment available
		within 75 ft. of
		gasoline storage area.
13.	29 CFR	No side or middle	4-21-72	70.
	1926.450(b)(9)	rails installed on
		double cleat ladders
		used by employees for
		access and exit from
		work areas (three
		locations near center
		of area). n5

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n2 Inasmuch as this matter is being disposed of on a procedural ground, it is unnecessary to set forth the various standards referred to in the citation.

n3 By a document designated "Amendment to Complaint," filed on June 5, 1972 (J 8), the Secretary sought to revise the allegations with respect to Item No. 1 by charging violation of 29 CFR 1926.304(f) and ANSI standard 01.1-1961 Safety Code for Woodworking Machinery adopted at 29 CFR 1910.12 as follows:

(A) the blade of a 9-inch Rockwell table saw, Serial No. 9PA-56C4D481 was unguarded by a hood, as required for such saw by Sec. 4.1.2(a) of the aforesaid ANSI Code; and (B)(1) the blade of an 18-inch Rockwell radial saw, which was used for ripping, Serial No. 69111829, was unguarded by a hood and a side guard, as required by Sec. 4.1.9(a) of the aforesaid ANSI Code; and (2) said radial saw was not provided with nonkickback fingers or dogs, as required by Sec. 4.1.9(c) of the aforesaid ANSI Code.

At the hearing the citation was amended to reflect that the 18-inch saw was a DeWalt rather than a Rockwell saw (Tr. 56).

n4 The Secretary withdrew its charges with respect to 29 CFR 1926.21(b)(2) and 29 CFR 1926.450(b)(9). See Paragraphs XI and XX of complaint (J 7, Tr. 13).

n5 See Footnote 4, supra.

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Respondent's principal defense, n6 first asserted in its letter of contest dated May 19, 1972, filed with the Secretary on May 19, 1972 and with the Review Commission on May 22, 1972, is that the Secretary's investigation was "null and void" as the inspector did not present credentials to an appropriate official of Respondent, did not explain the nature, purpose and scope of the inspection and did not afford an opportunity for a representative of the employer or of the employees to accompany the inspector during his inspection. The defense is reiterated in Respondent's answer, in two written motions it filed (J 10, J 11) and at the hearing (Tr. 138-44).

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n6 As indicated under "Jurisdiction -- The Business of Respondent, infra, Respondent challenges only the penalties proposed as to Items 1, 3, 5, 6, 10 and 11. It disputes the illegality asserted by the Secretary, as well as the penalties proposed, as to Items 2, 7, 8, 9 and 12.

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After complaint and answer were filed, the case came on for hearing at Honolulu, Hawaii on January 4 and 5, 1973. The Secretary called Thomas Crandall, who inspected Respondent's workplace on April 17, 1972. Respondent called George Kagami, Respondent's Vice President of Operations and General Superintendent, and Charles Schulz, Respondent's Carpenter Foreman. Counsel for the Secretary has submitted proposed findings, conclusions and order, along with a brief. Mr. Samuel L. Mokuahi of the Roofers Union, Local 221, Honolulu, Hawaii, entered an appearance (J 13) but did not actually attend the hearing. No employees and no employee representative appeared at the hearing to participate in the proceedings.

FINDINGS OF FACT

A. JURISDICTION -- THE BUSINESS OF RESPONDENT

1. It is established by the pleadings (J 7 and J 10) that Respondent is an Hawaiian corporation with its principal office at 105 Puuhale Road, Honolulu, Hawaii; that on April 17, 1972, the day of the Secretary's inspection, it was engaged in the construction of facilities at the Honolulu International Airport; and that it was, and is, engaged in a business affecting commerce. See also Tr. 14.

2. The record indicates that Respondent is one of 51 subsidiaries of Amelico Corporation, a holding corporation with gross revenues of over $90 million in 1971 and assets of over $42 million as of September 1, 1971. Respondent accounts for five to ten percent of the revenue of Amelico Corporation. It was stipulated that at the time of the inspection Respondent had approximately $3 1/2 million in construction contracts, which had grown to $25 million at the time of the hearing. Normally Respondent has 100-150 persons on its payroll in "the Island area." At the time of the inspection there were approximately 60 employees at the airport job site (Tr. 95-9).

3. Based on these undisputed facts it is found that Respondent is an "employer" engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

4. Certain other matters were established by agreement, including the following:

a. That the number of employees affected by the alleged violations were as pleaded in paragraph 23 (XXIII) of the complaint (ranging from one to 40, Tr. 16);

b. That the allegations of fact contained in Items 1, 3, 5, 6, 10 and 11 of the citation are true and involve violations of law as alleged (Tr. 18-37); and

c. That the facts alleged in Items 2, 7, 8, 9 and 12 are true to the extent that they are pleaded (Id.).

Respondent has denied, however, that the facts pleaded in Items 2, 7, 8, 9 and 12 were all of the relevant facts bearing on the issues involved in such items, and it specifically denies that there was any violation of law as alleged in Items 2, 7, 8, 9 and 12. Respondent also questions the constitutionality of the statutory scheme whereby the Secretary may propose any penalty under the Act and, in addition, specifically argues that the amounts proposed by the Secretary are in fact excessive (Id.).

5. The parties also stipulated that Respondent has no prior "history" under the Act, and that 20% was an appropriate allowance to be given for this factor in determining the propriety of any penalty that may be imposed. It was also agreed that 10% was an appropriate allowance for "good faith" (Tr. 95-6). The parties did not agree on any percentage for "size" but did reach a stipulation as to the number of employees and certain other information bearing on the issue (which is set forth in Finding of Fact No. 2, supra ). n7 These stipulated matters can only be relevant, however, in the event the merits of the case should be reached. Respondent's challenge to the inspection procedure followed by the Compliance Officer must first be considered.

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n7 Section 17(j) provides that "the Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."

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B. THE INSPECTION PROCEDURE

6. There is no significant conflict in the testimony adduced on the inspection procedure followed by the Secretary's compliance office in inspecting Respondent's workplace at the Honolulu International Airport on April 17, 1972. Mr. Crandall, the Secretary's Compliance Officer, as well as Respondent's defense witnesses, Vice President-General Superintendent Kagami and Carpenter Foreman Schulz, testified on the issue (Crandall -- Tr. 41-9, 109-28, 135-7; Kagami -- Tr. 174-7, 242-72A; Schulz -- Tr. 274-5, 299-301).

7. Mr. Crandall said he came to Respondent's workplace shortly after lunch. He described the area as a three-story or three-deck structure where framing, concrete pouring and steel erection were in process. The work area was boarded or fenced off "with 4 X 8 sheets of plywood" (Tr. 43).

8. On entering the worksite he noticed an "apparent violation" involving an unguarded saw. He took a photograph of it and spoke to the operator-employee about it and the failure to be using any eye protection. The employee gave his name to Mr. Crandall and referred the latter to his craft steward or supervisor believed to be on an upper deck. Mr. Crandall said he proceeded to a higher deck but not before talking to several other employees and taking several more photographs. Thereafter he said he presented his credentials to Foreman Schulz "who seemed to be the Overseer" (Tr. 45), but the latter simply referred him to the office of Vice President Kagami on the "lower level" of the jobsite (Tr. 125). En route to Mr. Kagami's office he reported that he "came across several other apparent violations, which I documented and took several photographs and interviewed several employees" (Tr. 47).

9. When he arrived at the jobsite office Mr. Kagami was involved in a meeting attended by the general contractor and subcontractors. According to Mr. Crandall, he discussed each "apparent violation," the abatement dates, and even offered to re-walk the inspection and point out each item. He said he also told Mr. Kagami that he had taken photographs and talked to some of Respondent's employees. He described the meeting "really . . . a combination of a closing and opening conference" (Tr. 47). On cross-examination, Mr. Crandall forthrightly admitted that he did not follow the procedures rescribed for conducting an OSHA investigation (Tr. 115-18).

10. Mr. Kagami recalled Mr. Crandall's 15 minute (Tr. 250) inspection visit during a business meeting in his office, but he did not remember any discussion of abatement times, being told of any photographs, of any discussion with any of Respondent's employees or of any offer to re-walk the inspection route as Mr. Crandall had testified. On the contrary, his recollection was that no opportunity was given management or employees to participate in the inspection. n8 He recalled seeing Mr. Crandall's business card but not his credentials. According to Mr. Kagami, there was no indication given that a citation would issue or that any penalty would be sought. He said he did indicate that he would correct any existing violation.

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n8 Mr. Kagami was asked on cross-examination how he would have been of any assistance during the inspection had he been present during the walk-around. While indicating that his presence might not have mattered in every instance, he thought his participation could have been beneficial. See Tr. 253-272A.

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11. Mr. Schulz testified that on the day of the inspection Mr. Crandall simply inquired of him if he were in charge. He told him he was not and showed him where he could find Vice President Kagami. He continued with his work and never saw him again (Tr. 274-5, 299-301).

C. DISCUSSION

12. Section 8(a) and (e) of the Occupational Safety and Health Act of 1970 read as follows:

Sec. 8.(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

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

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

(e) Subject to regulations issued by the Secretary, z representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

13. The Secretary has implemented these provisions of the statute by regulations. See 29 CFR 1903.3, 1903.7 and 1903.8; also Chapter V of the Secretary's Compliance Operations Manual, especially Parts D, E and F.

14. The Commission has recently held that an employer cannot rely on the Secretary's failure to comply with Section 8(e) of the Act. Chicago Bridge & Iron Company, Docket 224, January 19, 1973; Wright-Schuchart Harbor Contractors, Docket 559, February 15, 1973; and Drake-Williamette Joint Ventures, Docket 117, April 18, 1973. The Commission has not held, however, that the Secretary may obtain enforcement of a citation based on an investigation conducted without the knowledge and consent of the employer or without "appropriate credentials" being presented to an appropriate official of the employer. In the opinion of the undersigned, Section 8(a) presents a different question than that presented in the cited cases, and that it must be determined in this case adverse to the Secretary. n9

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n9 And see Alsea Lumber Company, Docket 1228, April 4, 1973.

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15. The wording of the statute makes it clear that Congress intended to empower the Secretary to act only by means of an "authorized" inspection, requiring at the outset the presentation of "appropriate credentials to the owner, operator or agent in charge." The statute does not give the Secretary authority to make inspections without complying with Section 8(a), and he is empowered to issue a citation under Section 9(a) of the Act only "upon inspection and investigation." Since the Secretary did not follow the inspection procedure required by Section 8(a) of the Act (and his own regulations), there is no legal basis for issuing the citation or proposing any penalties relating to it.

16. If the statute should be considered unclear and resort to legislative history appropriate (see, for example, United States v. McKesson & Robbins, 351 U.S. 305(1956)), the Secretary's cause would not be aided and the result would be the same. The Congressional Record, in reporting the debate in the House on H.R. 16785 -- the bill sponsored by Congressmen Steiger and Sikes as a substitute for H.R. 19200, Mr. Steiger's original bill -- records the following for November 24, 1970:

Mr. GALIFIANAKIS. Mr. Chairman, I rise in support of H.R. 19200, the Occupational Safety and Health Act.

But I think there are some provisions of H.R. 19200 which need clarification. Unless the intent of these provisions is explained for the record, I fear that we may lose some of the effectiveness of this bill.

Mr. Chairman, I asked the gentleman from Wisconsin (Mr. Steiger), who is the author of this bill, several pertinent questions and I included these questions and answers as a part of my remarks. Following are the questions along with the answers:

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

Answer. It is. Section 9(a) provides in part that: ". . . the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized -- (1) to enter without delay and at reasonable times . . . and (2) to question . . . and to inspect and investigate . . . So until the inspector has presented his credentials, he is not empowered to enter a business or workplace. I might add that this is a feature common to both H.R. 19200 and H.R. 16785.

Question. And the inspector not only must present those credentials, but he must present them to the owner, operator, or agent in charge, Is that not correct?

Answer. It is. n10

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n10 Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, P.L. 91-596), June 1971 Committee Print, pp. 1075-6 The wording of the introductory clauses in Section 9(a) of H.R. 16785 and H.R. 19200, the inspection sections in both bills, were identical to Section 8(a) of the Act as finally enacted ( Legislative History, supra, pp. 735-7, 782). The wording of Section 9(a)(1) of H.R. 16785 was similar to Section 8(a)(1) of the Act except it referred simply to "any workplace," and the bill did not provide for entry "without delay." Section 9(a)(1) of H.R. 19200 was identical to Section 8(a)(1) of the Act as passed. Section 9(a)(2) of H.R. 16785 was identical to Section 8(a)(2) except the former did not provide for questioning of the persons identified "privately." Section 9(a)(2) of H.R. 19200 was similar in effect to Section 8(a)(2) of the Act as passed, but Mr. Steiger's bill was worded somewhat differently ( Legislative History, supra, pp. 735-6, 782).

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17. Mr. Steiger responded to Mr. Galifianakis' inquiry, addressing himself primarily to the question of who may be considered the agent in charge. But he began his response by stating ( Legislative History, supra, p. 1076):

Mr. Chairman, section 9(a) of the bill provides that in carrying out the purposes of the act, the Secretary is authorized to enter and inspect a factory "upon presenting appropriate credentials to the owner, operator, or agent in charge."

And he pointed out that ( Id. at p. 1077):

I would add that in carrying out inspection duties under this act, the Secretary, of course, would have to act in accordance with applicable constitutional protections.

The House Committee Report on H.R. 16785 (H. Rept. 91-1291 dated July 9, 1970) recited that:

Thus Section 9(a) authorizes the Secretary, upon presenting appropriate credentials, to enter at reasonable times the premises of any workplace where work is performed to which this Act applies, and to inspect, and investigate within reasonable limits all pertinent conditions and also to question owners, operators, agents or employees. ( Legislative History, supra, p. 852).

18. Likewise, the Senate Committee Report on S. 2193, as amended (S. Rept. 91-1282 dated October 6, 1970), recited in relevant part that:

Section 8(a) therefore authorizes the Secretary or his representative, upon presenting appropriate credentials, to enter at reasonable times the premises of any place of employment covered by this Act, to inspect and investigate within reasonable limits all pertinent conditions, and also to privately question owners, operators, agents or employees. ( Legislative history, supra, p. 151.) n11

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n11 Senator Williams originally introduced S. 2193 for himself and others on May 16, 1969 ( Legislative History, supra p. 1). The introductory clause of the inspection section, Section 5(a), of the original bill was the same as it appears in Section 8(a) of the Act. Subparagraphs (1) and (2) of the inspection section were similar to Section 8(a)(1) and (2) of the Act but did not provide for entry "without delay" and did not provide for questioning of an employee "privately" or questioning of any employer, owner, operator or agent at all ( Legislative History, supra, p. 11).

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19. The cases indicate, furthermore, that if the Secretary does not obtain the consent of the owner of the business or an appropriate representative, he must follow the procedure prescribed for conducting an inspection; otherwise the evidence obtained may not be used, consistent with the Fourth Amendment, to impose any sanction. See Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S. 541 (1967); and Colonnade Corp. v. United States, 397 U.S. 72 (1970). n12 See also Mapp v. Ohio, 367 U.S. 643 (1961); Stoner v. California, 376 U.S. 483 (1964); Davis, Administrative Law Treatise (1958) Sec. 3.05 (esp. in 1970 Supplement).

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n12 The San Francisco housing code, involved in Camara v. Municipal Court, supra, provided for entry upon presentation of proper credentials. Even so, the Supreme Court ruled that Camara could properly refuse entry by an inspector making a routine investigation without a warrant.

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20. It is clear from the record that the Secretary's representative conducted his inspection of Respondent's workplace without knowledge of, and thus, the consent of, anyone in authority for Respondent. The Secretary's representative had not presented appropriate credentials to an appropriate official when he undertook to inspect and investigate Respondent's place of employment and all pertinent conditions, including the "structures, machines, apparatus, devices, equipment, and materials therein. . . ." When he did identify himself to Mr. Kagami and explained the purpose of his visit, the Secretary's investigation was over. n13

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n13 There is an apparent conflict of testimony between the compliance officer and Mr. Kagami as to the offer to rewalk the inspection; also whether credentials were actually presented (Tr. 48-9; 176; 243-7). The compliance officer expressly stated that he did present his credentials to a saw operator and to Mr. Schulz (Tr. 46, 109, 125). These conflicts are not significant and need not be resolved as the Secretary's citation and notification of proposed penalty were issued without an authorized inspection ever being carried out in any event.

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21. The measure of the inspector's authority must be found in the statute. It is apparent from an examination of the Act that the Secretary's inspecting officer did not in fact have authority to begin to inspect and develop evidence upon which the Secretary could rely in enforcing the Act until the inspection had been concluded. Thus, the Secretary's citation and notification of proposed penalty were not based upon, or the result of, an authorized inspection or investigation.

CONCLUSIONS OF LAW

1. Respondent is, now and at all times material herein, an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter.

2. On April 17, 1972, an inspection was made of Respondent's workplace at the Honolulu International Airport by a representative of the Secretary.

3. Such inspection was not an authorized one as it was not conducted in accord with Section 8(a) of the Act.

4. There was no legal basis for issuance of the Secretary's Citation No. 1 dated April 27, 1972 against Respondent or the related notification of proposed penalty.

ORDER

Based on the foregoing findings of fact, conclusions of law and the entire record, it is ORDERED that Citation No. 1 dated April 27, 1972, and the related Notification of Proposed Penalty issued to Respondent be, and the same are, vacated.