Docket No. 133

H-E LOWDERMILK COMPANY

OSHRC Docket No. 133

Occupational Safety and Health Review Commission

April 16, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On August 2, 1972, Judge Harold A. Kennedy issued his decision and order in this case, vacating four items and affirming two items of the Secretary's citation and vacating all proposed penalties.

On August 22, 1972, it was directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as "the Act"), in order to interpret the language of two of the cited safety and health regulations for construction.

The Commission has reviewed the briefs filed by the parties and has considered the entire record. We adopt the Judge's decision insofar as it is consistent with the following.

The citation was issued following the inspection of respondent's workplace, a highway construction project. Before the inspection, respondent's foreman was killed when a truck backed over him. Item no. 1 of the citation alleged a violation of the Act by failure to comply with the standard at 29 CFR § 1518.601(b)(4) (now 29 CFR § 1926.601(b)(4)), n1 which states:

(4) [*2] No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:

(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or:

(ii) The vehicle is backed up only when an observer signals that it is safe to do so.

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n1 Respondent was cited for failure to comply with the standard at 29 CFR Part 1518, which has been redesignated 29 CFR Part 1926. The standards concerned will be hereinafter referred to by their current designation.

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It is undisputed that respondent used trucks with an obstructed rear view without reverse signal alarms. Therefore, respondent would be in violation if its trucks were backed up without a proper observer signalling that it was safe.

Respondent maintains that it complied with the standard by designating its bulldozer operators as observers to oversee the safe backing of the trucks. The bulldozer operators' primary job was to spread fill dumped by trucks. It is unclear from the record whether all or some of the operators were designated [*3] as observers. Respondent further contents that its method of compliance is safer than having an observer stationed on the ground, and points to the fatal accident as proof of its contention. In that accident, respondent's foreman, who was standing on the ground, was run over by a truck after he directed its driver to back up.

The Secretary maintains that the respondent must provide an observer who is free to function in that capacity whenever a need arises, and argues that the fatal accident demonstrates that the respondent's assertedly well-established procedure of using bulldozer operators as observers is not always followed. The compliance officer testified that at the time of his inspection, he observed respondent's trucks backing up while the bulldozer operators were operating their equipment, and thus were not free to observe and direct the drivers. The evidence with respect to the accident supports respondent's contention that observers on the ground may, indeed, be in peril. Even assuming that this might be so, the testimony of the inspector demonstrates that respondent's procedure is not such as to be in compliance with the cited standard, inasmuch as bulldozer [*4] operators, engaged primarily in filling, are not always available to observe and signal drivers. This is the critical point. Observers free to signal must be provided whenever trucks back without an audible signal, although this need not be the full-time duty of the observer. The respondent's failure in this regard renders it in violation of the standard.

In assessing a penalty, we note that the gravity of the violation is high, and that respondent's business is large, with about 100 employees. On the other hand, there is no serious question of respondent's good faith, as evidenced by its on-going safety program and cooperation in abating the violations. Respondent has no history of previous violations. Accordingly, a penalty of $100 is considered appropriate.

The second issue under review involves item no. 3, an alleged failure to comply with the standard at 29 CFR § 1926.900(k)(3). n2 That item was not contested in the respondent's notice of contest. At hearing, upon realizing that a $65 penalty had been proposed n3 the respondent contested the alleged violation and proposed penalty. According to the provisions of section 10(a) of the Act, an employer has fifteen [*5] working days subsequent to receipt of notice of any penalty proposed to be assessed within which to contest the citation or proposed penalty. Respondent's notice of contest with respect to item no. 3, was made orally at hearing immediately after clarification of the notice of proposed penalty. This situation is unusual, and may be characterized as sui generis. We consider the notice of contest to be valid and timely filed under the circumstances, i.e., promptly upon a clear notice of the proposed penalty. No party challenged the validity of the contest on this issue.

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n2 Section 1926.900(k)(3) reads reads as follows:

§ 1926.900 General provisions.

(k) Due precautions shall be taken to prevent accidental discharge of electric blasting caps from current induced by radar, radio transmitters, lightning, adjacent powerlines, dust storms, or other sources of extraneous electricity. These precautions shall include:

(3)(i) The prominent display of adequate signs, warning against the use of mobile radio transmitters, on all roads within 1,000 feet of blasting operations . . . (Emphasis added).

n3 The notification of proposed penalty, although timely, was imprecise, as it appears that the total penalty applies only to item no. 1.

[*6]

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The standard at issue in item no. 3 requires the prominent display of signs warning against the use of radio transmitters within 1,000 feet of "blasting operations." The testimony suggests that this is one of several requirements intended to prevent the accidental discharge of electric blasting caps after the caps are wired to the explosives. The evidence establishes that although respondent was loading dynamite charges preparatory to blasting, the caps were not yet connected to the explosives. We construe "blasting operations" within the meaning of 29 CFR § 1926.900(k)(3) to begin with the wiring of the caps. Warning signs are required by the standard only during blasting operations. Having concluded that respondent was not conducting blasting operations at the time of the inspection, it necessarily follows that it had not failed to comply with the standard. Because of an absence of evidence showing a failure to comply with this standard, item no. 3 was properly vacated.

Item no. 5, n4 however, involves a more serious hazard, a failure to comply with 29 CFR § 1926.350(a)(9), which requires [*7] that compressed gas cylinders be stored securely in an upright position. Respondent had a number of cylinders at the worksite. They were not secured, and most were lying flat on the ground or leaning at an angle against a trailer. They thus were susceptible to physical damage which could cause gas to escape, turning the damaged cylinder into a high speed projectile in the workplace. In view of respondent's size, history, and good faith as previously discussed, and the gravity of this violation, the Secretary's proposed penalty of $40 is appropriate.

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n4 In his Order, Judge Kennedy affirmed item nos. 4 and 5. The parties have noted that this constitutes a typographical error, item nos. 5 and 6 actually having been affirmed by the Judge.

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It is ORDERED that the Judge's decision be modified in accordance with this opinion, that item no. 1 be reinstated, and that respondent be assessed a total penalty of $140.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Judge Kennedy correctly decided all the issues in this case with [*8] a thoughtful, considerate and complete decision. It has taken the Commission 20 months to review that decision. Parturient montes, nascetur ridiculus mus. n5

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n5 Horace, Ars Poetica.

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[The Judge's decision referred to herein follows]

KENNEDY, JUDGE OSAHRC: On October 8, 1971 the Secretary of Labor issued a citation charging H-E Lowdermilk Company with violating the Occupational Safety and Health Act of 1970 (29 U.S.C. 651) by failing to comply with six specific construction safety and health standards promulgated by him under that Act at a workplace located at Bakersville, Loveland Valley, Colorado. The citation called for all six alleged violations to be abated by November 8, 1971. By a notice dated October 14, 1971, the Secretary advised Respondent that a penalty of $280 was being assessed. n1

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n1 The notification of proposed penalty indicates that a penalty was being assessed as to only one alleged violation (Item 1, HE Ex. 2). At the hearing, however, the compliance officer who made the inspection of Respondent's workplace testified that a penalty was proposed for each of the six items and that the total of all the penalties was $280 (Tr. 22-30, Secy's Ex. 1).

[*9]

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Respondent H-E Lowdermilk Company by letter dated October 28, 1971, filed with the Review Commission on November 1, 1971, indicated its intention to contest the citation and the proposed penalty. n2.

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n2 Respondent's letter did not contest one charge (Item No. 3), but it was opened up to contest at the hearing because of the lack of notice as to the proposed penalties assessed (Tr. 28).

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The Secretary filed his complaint on November 11, 1971, and Respondent's answer was thereafter filed, with permission of the undersigned, on February 4, 1972. After due notice, the hearing was held on April 25, 1972 in Denver, Colorado. A copy of the notice of hearing was sent to three Employee Representatives: Teamsters Local Union No. 13 (Denver), Laborers Local Union No. 720 (Denver) and Operating Engineers Local Union No. 9 (Denver); but none of these labor organizations appeared at the hearing or otherwise participated in the proceeding. Counsel [*10] for the Secretary and Respondent appeared at the hearing and thereafter filed proposed findings and/or briefs. The undersigned, having carefully considered the proposed findings and briefs and the entire record, makes the following:

FINDINGS OF FACTS

I. Jurisdiction

The complaint alleges, and the answer admits, that Hoyle Lowdermilk, Inc. and Elbert Lowdermilk, Inc. are two corporations licensed in the State of Colorado and doing business as H-E Lowdermilk Company. The complaint lists both corporations as Respondents, and the record shows that they do business, at least insofar as this case is concerned, as a partnership (Tr. 3). "Respondent" will be used herein to refer to such partnership. Both corporations have an office at Englewood, Colorado where they are engaged in general engineering and construction business.

The complaint alleges, and Respondent admits, that it is an "employer" within the meaning of the Act; also that materials and supplies are regularly received from outside of the State of Colorado and that Respondent's employees regularly handle and work on goods shipped or received in commerce. Respondent also admits the allegation in the complaint [*11] that Respondent employs "approximately one hundred employees in connection with highway construction project 170-3 (65-223), located near Bakersville, Colorado, in the Loveland Valley west of Silver Plume, Colorado." Respondent's Secretary-Treasurer testified that on October 1, 1971, the day of the inspection, Respondent had 113 employees working on the project (Tr. 70). Respondent's answer also admits that all of its employees on the project were represented by Teamsters Local No. 13, Operating Engineers Local No. 9 or Laborers Local No. 720.

The same official testified that "H-E Lowdermilk Company was organized from our corporations in 1957"; that "we are heavy highway contractors who specialize in rock excavation"; and "we work in a five state area" (Tr. 58).

Based on these undisputed facts, the undersigned finds that there is jurisdiction over the subject matter and the parties.

II. The Evidence and Findings on the Charges

The Secretary's Compliance Officer, Raleigh M. Kay, who has had approximately eight years of experience in safety and health inspection with the District of Columbia and the United States Department of Labor, testified for the Secretary. Two [*12] of Respondent's officials, Richard J. DeLaCastro and Daniel L. Handy, Secretary-Treasurer and Project Superintendent, respectively, testified for the Respondent. Mr. Kay inspected Respondent's workplace on October 1, 1971, at which time he met Mr. Handy. Mr. Handy did not accompany Mr. Kay during the inspection, but a representative of the Employer was appointed to do so.

The record shows that Respondent has been involved in the construction of Interstate Highway 70 through the State of Colorado. Respondent's project superintendent described the portion of the highway project that Respondent was working on at the time of Mr. Kay's inspection as follows (Tr. 58):

This project was making an interstate roadway from Bakersville to Loveland Basin which would consist of an east and westbound lane, one overpass over a valley there, and the surfacing of the road would be paved with a guard rail. And, the westbound lane is all new alignment, coming through rock cuts. The eastbound lane is made out of the excavation and filled over swampy areas.

The worksite was in "rough country" and "just about as high as you can get" in the Rocky Mountains (Tr. 95).

Although a fatal [*13] accident occurred at the worksite a few days before Mr. Kay's visit, the Secretary acknowledges that Respondent has a good safety program (Tr. 44-46). It has been Respondent's practice to issue safety equipment, give safety instructions, including first-aid training, and hold regular safety meetings. Respondent has received awards for its safety record (Tr. 59-63; Resp's Exs. 1-5). In assessing penalties for the alleged violations, the Secretary gave Respondent the maximum allowance available under his administrative guidelines for "good faith" (20%) and "history" (20%). An additional allowance (50%) was given because Respondent had "corrected" each of the alleged violations prior to the abatement date prescribed by the Secretary.

The Secretary assessed proposed penalties for each of the alleged violations as follows (Secretary's Ex. 1):

1. (Back-up observer)	$100
2. (Stair railing)	25
3. (Blasting Signs)	65
4. (Headlight)	25
5. (Cylinders)	40
6. (Material by steps)	25

	$280

Item No. 1 -- Paragraph IV of the complaint, following the language used in Item 1 of the citation, alleges that:

On October 1, 1971, respondent was found to have no reverse signal [*14] alarm or observer on vehicles with an obstructed rear view, in violation of 29 C.F.R. 1518.601(b)(4).

The cited standard reads:

(4) No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:

(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or:

(ii) The vehicle is backed up only when an observer signals that it is safe to do so.

Respondent employed large Euclid dump trucks, known as "Eucs," and bulldozers, known as "cats," in building the fill on the highway project. Respondent has developed a standard procedure utilizing these vehicles in constructing a fill. The Eucs would haul excavated material or dirt to the fill and dump it. The cat, which stays in the dump area, would then spread the material out so the proper level could be reached (Tr. 87). The Eucs have side mirrors but no rear view mirrors. At the time of the inspection, the Eucs had no reverse signal or alarm. Prior to the Secretary's inspection, Respondent's procedure was to use the cat operator as an "observer." The cat operator would remain seated on his machine and direct, by signals, where the Euc operators should dump their [*15] loads.

The standard does not indicate where an "observer" should be or what specifically he is required to do. The Secretary maintains that an observer cannot be required to do anything but observe. Respondent contends that its cat operator can, and does, act as an observer, and this procedure satisfies the requirements of the standard. Both sides point to the death of Respondent's grade foreman, John H. Ainsworth, on September 29, 1971 as proof that its own position is the correct one.

Mr. Ainsworth, an experienced employee, was in charge of the fill area. On the day of the accident he was on foot near the fill and was undertaking to direct the unloading of the Eucs. According to an accident report received in evidence by stipulation (Secy's Ex. 3):

Euc skinner pulled into fill area. Honked his horn at him and he waved back. Euc skinner turned and was backing in to dump and in the meantime foreman got behind Euc and skinner could not see him in his mirror and backed over him.

The undersigned is constrained to find on the evidence that Respondent did not prove that the standard was violated. The standard requires that where the vehicle has no prescribed reverse [*16] signal there must be an observer to signal when it is safe for the vehicle to back up. The standard does not require the observer be on foot or be on a vehicle. It does not forbid the observer from doing other things. To be sure, an employee may be given other duties so that he could not function as an observer. But the important thing under the standard is that a person be able to observe when observing is called for -- i.e., when the vehicle is backing up. The evidence does not establish that Respondent failed to comply with 1518.601(b)(4) on October 4, 1971 as alleged. Further, as Respondent points out, a walking observer on the fill is not as safe as an observer who sits on a heavy piece of equipment.

Item No. 2: Paragraph V of the complaint alleges that:

On October 1, 1971, no railings were provided on stairs to a trailer, in violation of 29 C.F.R. 1518.501(b) and 1518.500(e)(f).

The cited standards read as follows:

§ 1518.501 Stairways

(b) Stairway railings and guardrails shall meet the requirements of § 1518.500(e) and (f).

§ 1518.500 Guardrails, handrails, and covers.

(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers [*17] shall be equipped with standard stair railings or standard handrails as specified . . .

(f) Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts and shall have a vertical height of approximately 42 inches . . .

Respondent had several trailers on the project. Compliance Officer Kay recalled observing one large van type trailer with a stairway with four or more steps and no railing. Some snow fell while he was inspecting Respondent's workplace and he felt that there should be a railing because of the slippery condition. He placed the particular trailer referred to "on the east end of the office trailer," but he did not make note of the unit number or take a picture of it. His recollection was that the steps were at the rear of the trailer where there were large doors. He believed that the steps were made of wood (Tr. 17-18; 32-35).

Mr. DeLaCastro was not certain whether the trailer referred to by the compliance officer had a railing. He said that there is a four or five-step stairway to the trailers, but the steps have ridges or treads on them and are made of steel deck plate (Tr. 68). Mr. Handy, on the [*18] other hand, said that he knew the trailer that Mr. Kay had referred to, and it definitely had a rail on the right side of the steps as one of the doors swings around to it. He conceded there could have been another trailer at the worksite without a rail (Tr. 98-99).

In the Judge's view, the evidence on this charge is not convincing enough to establish a violation. The burden of proof is upon the Secretary to establish by probative evidence that the standard had been violated. The evidence is vague as to which trailer was involved, the material used in constructing the steps and whether a railing was, in fact, in place or not.

Item No. 3: This item was not originally contested so neither the complaint nor the answer contained an allegation as to it. The charge was put in issue with consent of the parties at the hearings (Tr. 28). Item 3 of the citation alleges violation of 29 C.F.R. 1518.900(3) in the following words:

No warning signs for blasting operation.

29 C.F.R. 1518.900(k)(3) reads:

(k) Due precautions shall be taken to prevent accidental discharge of electric blasting caps from current induced by radar, radio transmitters, lightning, adjacent powerlines, dust storms, [*19] or other sources of extraneous electricity. These precautions shall include:

(3) The posting of signs warning against the use of mobile radio transmitters on all roads within 1,000 feet of the blasting operations. Signs shall have 4-inch white letters on a red background, with the words, "Blasting Area-Radio Transmitting Prohibited."

Mr. Kay said that he observed holes 50 to 75 feet from the road being loaded with dynamite while he was at Respondent's worksite. He indicated he left before the caps were wired and the actual shot was made so he was not aware of whether the warning signs were properly in place at the time of the blast or not. He was aware that Respondent had warning signs. He appeared to agree that the risk of an automobile radio transmitter actually setting off a blasting cap was not great, but he definitely agreed that there is no hazard unless the safety ends have been removed and the caps wired in (Tr. 46-50).

Mr. DeLacastro pointed out that the warning signs must be moved about as blasting operations are performed at different places. However, he indicated the signs were put out only when actually required to do so in order to avoid confusing [*20] motorists. n3

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n3 "We always are reminded by the agency that we shouldn't have them out if we are not actually engaged in work at that time because of the motoring public getting confused with the signs and then won't heed any of them" (Tr. 66).

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Mr. Handy appeared to concede that the drill foreman should have had the signs up when Mr. Kay was there, but it was his understanding that there was no danger of accidental detonation unless a radio transmitter was within five or six feet of the cap. And, according to Mr. Handy, there is no risk at all of detonation unless the caps have been wired in place (Tr. 95-98; 100-1).

It is apparent that the standard is not violated unless "blasting operations" includes the loading phase. The Secretary argues that loading of the dynamite should be included as a part of the blasting operation. This would be an entirely reasonable interpretation except for the fact that the evidence here shows that there was no real risk of detonation at the time of Mr. Kay's inspection, [*21] notwithstanding the fact that holes were being loaded. In fact, his inspection apparently served to remind Respondent to put out the warning signs so the standard would not be violated.

Item No. 4: Paragraph VI of the complaint alleges that:

On October 1, 1971, a "Euclid" vehicle had a broken headlight, in violation of 29 C.F.R. 1518.601(b)(2).

The cited standard provides in part:

(2)(i) Whenever visibility conditions warrant additional light, all vehicles, or combinations of vehicles, in use shall be equipped with at least two headlights and two taillights in operable condition.

Compliance Officer Kay said that he observed that one of 13 Eucs on the job had a broken headlight. The weather at the worksite varied during his inspection; it was clear at times, hazy on occasion, and then there were snow showers. He said, however, that there was no need of additional light during the time he observed the Euc with the broken headlight (Tr. 19, 35-6, & 51).

Superintendent Handy pointed out that the Eucs operated only in the daytime, and any broken headlight would be repaired at night by one of Respondent's mechanics. However, if a hazy or foggy day required the use of a headlight, [*22] "we would immediately pull it out and fix it" (Tr. 92-4; 98; 101-3).

From the above facts, it is clear that no violation was established. The standard, by its terms, requires working headlights only when vehicles are in use and only when visibility conditions warrant additional light. The Euc with a broken light was seen only by Mr. Kay when there was adequate light. There is no evidence that the Euc was ever used when additional light was needed. The undersigned rejects the Secretary's contention that headlights must be maintained at all times regardless of visibility or use.

Item No. 5: Paragraph VII of the complaint alleges:

On October 1, 1971, compressed gas cylinders were not secured in an upright position, in violation of 29 C.F.R. 1518.350(a)(9).

The cited standard reads as follows:

(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

Mr. Kay stated that he observed five compressed gas cylinders, outside near a storage trailer, that were not secured in an upright position as the standard requires. Some were lying flat, [*23] some at an angle and "I believe one was standing upright." He thought cylinders in such positions were dangerous as they could fall over and damage the head, causing them to "flop around or to take off like a rocket." He also expressed the view that a chemical reaction could occur if the cylinder were to lie flat, but he seemed uncertain of this on cross-examination (Tr. 19-20; 30; 36-41; 51-3).

Mr. DeLaCastro noted that the cylinders are tall, narrow and wobbly, and there is a danger of detonation if they fall over. He pointed out that it had been Respondent's practice to have the cylinders lying down because it was believed to be the safest way to store them. He agreed that they could be chained in an upright position and made secure. He pointed out, however, that the cylinders are secure in an upright position only if they remain locked in place with a chain, and that welders using them may not always lock them back in place (Tr. 66-7; 69; 70-2; 77-8).

The undersigned is not persuaded that Respondent's procedure of storing compressed gas cylinders in a horizontal position is better or safer than the one prescribed by the Secretary's standard. The Secretary's standard [*24] was presumably promulgated by the proper procedure, and Respondent was bound to observe it.

Item No. 6: Paragraph VIII of the complaint alleges:

On October 1, 1971, material was placed in front of stairs to a trailer, in violation of 29 C.F.R. 1518.250(a)(3).

The cited standard reads as follows:

(3) Aisles and passageways shall be kept clear to provide for the free and safe movement of material handling equipment or employees. Such areas shall be kept in good repair.

Mr. Kay said that he observed "some material in front of the steps that could cause a tripping hazard to employees going in and out of the trailer." He said this alleged violation also involved the trailer just east of the office trailer. He identified the material as metal teeth or gear "in a pile of pieces" approximately six inches in length and two inches square or larger. He testified that it covered "the whole front of the stairway." One could turn left at the bottom of the steps and miss the debris, but coming down directly one would have to step over the pile (Tr. 20-1; 31; 42-4).

Superintendent Handy said that teeth "were piled up by one of the stairs to the trailer" at the time of Mr. Kay's inspection. [*25] He explained that the teeth were worn out and placed near the stairs only temporarily until they could be sent "into the yard." There was no aisle or passageway as such, "just a trail" to the steps of the trailer (Tr. 94-5).

Respondent contends that there was no violation of the cited standard as there were no "aisles or passageways" to any of the trailers that had been set up in the rough country where Respondent's worksite was located. The undersigned is of the view that the trail, at least as it ends or begins at the steps of the trailer, was a "passageway" within the meaning of the standard. Neither the fact that stairs were outside nor the fact that the ground was rough, so that employees had to be careful anyway, does not render the standard inapplicable.

CONCLUSIONS

As has been indicated, the undersigned finds that there had been no violation of the standards appearing at 29 C.F.R. 1518.601(b)(4); 501(b); 500(e) or 500(f); 900(k)(3); or 601(b)(2) as alleged in Items 1, 2, 3 and 4 of the citation. Of course, no penalty is appropriate where no violation has been established. The penalties assessed for violating 29 C.F.R. 1518.350(a)(9) and 29 C.F.R. 1518.250(a)(3) [*26] as charged in Items 5 and 6 must be given consideration, however. It is noted that the amount of the penalties proposed for each of these violations is relatively insignificant ($40 and $25). The undersigned has concluded, however, that no penalty may be properly assessed under the Act for either of these violations. Section 10(a) provides in part:

If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 . . .

The Secretary inspected Respondent's workplace on October 1, 1971 and thereafter issued his citation on October 8, 1971. Respondent received no notice of any proposed penalty as to Items 5 or 6 (or for any other Item of the citation other than No. 1) until the hearing on April 25, 1972, which was more than six months after the inspection and issuance of the citation. The Respondent was not notified of any penalties proposed for Items 5 and 6 "within a reasonable time" in this Judge's view and, accordingly, he declines to affirm [*27] the Secretary's proposed penalties therefor.

Based on the foregoing, and the whole record, the following conclusions of law are entered:

1. Respondent is, and at all times relevant herein, an "employer" and a person engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. Jurisdiction is conferred by section 10(c) of the Act.

3. The record does not establish that Respondent violated the safety and health standards appearing at 29 C.F.R. 1518.601(b)(4); 501(b), 500(e) or 500(f); 900(k)(3); or 601(b)(2).

4. The record establishes that Respondent violated the standards set forth at 29 C.F.R. 1518.350(a)(9) and 29 C.F.R. 250(a)(3) and, thus, Section 5(a)(2) of the Act.

5. No penalty may be assessed with respect to the violations referred to in paragraph 4 hereof as Respondent was not notified of any proposed penalty as to them "within a reasonable time" after the Secretary's inspection or investigation.

ORDER

Based on the foregoing, it is ORDERED that Items 1, 2, 3 and 4 of the citation issued herein on October 8, 1971, and the proposed penalties with respect to all six Items of said citation be, and [*28] the same are, VACATED. It is FURTHER ORDERED that Items 4 and 5 of said citation be, and the same are, AFFIRMED.