McDEVITT AND STREET COMPANY
OSHRC Docket No. 319
Occupational Safety and Health Review Commission
May 1, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission on the order of former Commissioner Burch and the separate order of Chairman Moran directing review of a decision of Judge John S. Patton. Judge Patton modified Complainant's citation for a serious violation of the standard prescribed at 29 C.F.R. 1926.552(b)(5)(ii) n1 to a non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). He assessed a penalty of $200.
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n1 29 C.F.R. 1926.552(b)(5)(ii) provides:
When a hoist tower is not enclosed, the hoist platform or car shall be totally enclosed (caged) on all sides for the full height between the floor and the overhead protective covering with 1/2-inch mesh of No. 14 U.S. gauge wire or equivalent. The hoist platform enclosure shall include the required gates for loading and unloading. A 6-foot high enclosure shall be provided on the unused sides of the hoist tower to ground level.
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Review was directed on the issue of whether the violation of 29 C.F.R. 1926.552(b)(5)(ii) constituted a serious violation of the Act and what was an appropriate penalty therefor. n2 We have reviewed the entire record. We conclude the Judge erred in modifying Complainant's citation to that of a non-serious one under the circumstances of this case. Accordingly, his decision is adopted only to the extent it is consistent herewith.
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n2 Review was also directed on the issue of whether the citation was issued with reasonable promptness. The issue was not raised during the issue formulation stage of these proceedings. Accordingly, we do not consider it. Chicago Bridge and Iron Company, In addition Respondent admits to a non-serious violation of the cited standard and argues on review that the Judge's decision should be affirmed.
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The relevant facts are as follows: [*3] Respondent was the general contractor on a construction project in Petersburg, Virginia. Complainant conducted an inspection of the worksite on November 5, 1971. The inspection was precipitated by a report of a fatal accident at the worksite on the previous day. An employee of a subcontractor had fallen to his death while loading the platform of a material hoist. The platform was located at the first floor level of a building under construction at the time of the fatal accident. This location was 12-14 feet above the ground.
During the inspection, Complainant's representative observed one of Respondent's employees removing a wheelbarrow containing cement from the same material hoist platform. At that time it was again located at the first floor level of the building. The hoist platform contained two wheelbarrows laden with cement and the employee was observed stepping over one set of wheelbarrow handles to reach the second wheelbarrow. He then pushed the wheelbarrow into the building.
The hoist tower was not enclosed at the time of inspection. The hoist platform had no enclosure on the side nearest the building, i.e., the unloading side. This side was 40 inches from the [*4] building itself. There was also no enclosure on the side of the hoist platform farthest from the building, i.e., the loading side. The remaining two sides had some protection which was approximately waist high to an employee located on the platform. No overhead protection was provided.
The material hoist had been used on the worksite prior to the inspection in the condition described above. Respondent's superintendent had authority over the material hoist and was aware of its condition.
On these facts, Respondent concedes it was in violation of the provisions of 29 C.F.R. 1926.552(b)(5)(ii). However, it contends that the violation was not serious within the meaning of the Act. n3
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n3 Section 17(k) provides: "For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
[*5]
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Judge Patton agreed. He reasoned that if the failure to have the required enclosures enhanced the possibility of a fall, the violation would be a serious one since a fall from 14 feet could be fatal. He then concluded the possibility of a fall was not materially enhanced by the lack of the gate enclosures since they would have been open during loading and unloading of the hoist platform. n4 He also concluded that the partial side protection reduced the likelihood of a person falling off the platform. Consequently, he modified the Complainant's citation to non-serious.
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n4 The Judge apparently overlooked the fact that the side farthest from the building (loading side) was completely unenclosed during the unloading operation at the first floor level. This side of the hoist platform did not have to be open during the unloading operation and should have been enclosed in accordance with the plain terms of the standard. Consequently, even under the Judge's interpretation of section 17(k) of the Act the absence of an enclosure on this side materially enhanced the possibility of a fall.
[*6]
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Subsequent to the Judge's decision the Commission has in a number of cases held that a serious violation is established if there is a possibility of an accident which, if it occurs, creates a substantial probability that death or serious injury will result. Emory H. Mixon, Portland Stevedoring Co., Standard Glass and Supply Company, Crescent Wharf and Warehouse Company, Natkin and Company, Mechanical Contractors,
Upon the evidence of record it is clear that the violation was serious within the meaning of section 17(k) of the Act. The possibility of an accident from the lack [*7] of proper enclosures is apparent. The Judge, as noted above, found that given an accidental fall, the result could have been fatal. Indeed a fall from the same height on the previous day resulted in just such a fatality.
Respondent also contends that it did not know and could not with the exercise of reasonable diligence have known of the presence of the violation. We disagree.
Respondent's superintendent, as noted above, had actual knowledge of the violative condition. Under the circumstances of this case and in view of the superintendent's authority over the worksite and the material hoist in question, his knowledge of the presence of the violation may be imputed to the Respondent. Accordingly, we conclude that the Respondent knew or should have known of the violation.
We turn now to the assessment of an appropriate penalty. Respondent had only one employee on the hoist platform on the date of the inspection. He was exposed to the violative conditions but apparently his exposure was of relatively short duration. In addition the partial enclosures on two sides of the hoist platform reduced the likelihood of an accident. However, the side opposite the building [*8] was completely unenclosed and a fall from the subject elevation could result in serious injury or death. On balance we conclude the gravity of the violation is moderate.
We also note that Respondent's business is large. In 1970, it employed an average of 1,000 construction workers and had an annual gross income of approximately $50,000,000. Respondent has no history of previous violations. There is no evidence from which we could conclude that Respondent acted or did not act with a lack of good faith. In the circumstances, we conclude that the penalty of $200 assessed by the trial Judge is appropriate.
For the reasons stated above, the Judge's order is modified to find a serious violation of 29 C.F.R. 1926.552(b)(5)(ii) and as modified is affirmed. It is so ORDERED.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case by Commissioner Van Namee but have an additional comment concerning the "reasonable promptness" issue. This issue was raised for the first time in the direction for review. It was not raised before or during the hearing, and the issue is not something jurisdictional to be raised at any stage of the proceedings or considered [*9] by the Commission even though it is not raised by the parties. See the majority opinion subscribed by Commissioner Van Namee and Chairman Moran in Chicago Bridge & Iron Co., No. 744 (January 24, 1974). n5 It is now well settled that under these circumstances the issue should not be examined; e.g., Morrison-Knudsen Co., & Assoc., No. 692 (March 28, 1974); Advance Air Conditioning, No. 1036 (April 4, 1974).
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n5 My views concerning the application of the term "reasonable promptness" are consonant insofar as the disposition of this case is concerned. For my full views on this subject, see Chicago Bridge & Iron Co., supra (dissenting opinion).
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DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: In this case there was a 33-day delay between inspection and citation. As noted supra, one employee died in this case as the result of a failure to observe the safety standards. Despite this, complainant waited over a month after learning of this hazard before citing the employer. It stould be noted that [*10] no correction of a hazardous condition need be made until after a citation is issued.
Why would the Secretary of Labor delay the citation for a month or more -- Knowing that one employee had already died from the hazard and that others were working each day under the same conditions? Why would he delay this long knowing this and also knowing that Congress wanted no more than 72 hours to expire between inspection and citation? Was it because he knew that this Commission would overlook the same? Regrettably, questions of this nature will never be answered until such time as this Commission forces the Secretary of Labor as well as the employers, to comply with the clear language of the law.
I cannot agree with the disposition in this case for the reasons stated above and those given in Secretary v. Silver Skillet Food Products Co., Secretary v. Advance Air Conditioning, Inc.,
[The Judge's decision referred to herein follows]
PATTON, JUDGE, OSAHRC: This case is before John S. Patton, the undersigned judge on the complaint of James D. Hodgson, Secretary of Labor, United [*11] States Department of Labor, hereinafter referred to as plaintiff against McDevitt & Street Company, hereinafter referred to as respondent, alleging that respondent has violated sections 5(a)(2) of the Occupational Safety and Health Act of 1970 (80 Stat 1604; 29 U.S.C. 651, et seq. ), hereinafter called the Act and Occupational Safety and Health Standards 29 C.F.R. 1518.552(b) (5), as adopted by 29 C.F.R. 1910.12. It is alleged that a serious violation occurred in that on or about November 5, 1971, respondent failed to totally enclose and to provide overhead covering for and to provide access gates on a material hoist platform on which employees were engaged in unloading materials. The respondent concedes that said law and standards were violated, but denies allegations that the violation is a serious violation within the meaning of the Act.
Citation was issued by the Department of Labor alleging said violation and a penalty in the amount of $650 was proposed. The respondent filed a notice of contest of said citation, whereupon the aforesaid complaint was filed by the plaintiff. Hearing was held before John S. Patton, Judge, in Richmond, Virginia, on June 1, 1972. Mr. James [*12] M. Conlin, Jr., appeared as attorney for petitioner and Mr. Richard A. Vinroot represented the respondent. There was no motion to intervene by the representative of the employees. All parties were accorded the right to present evidence and orally argue the case. The parties were accorded the right to file written briefs and briefs have been received by said parties.
LAW AND ISSUES OF THE CASE
Occupational Safety and Health Standard 29 C.F.R. 1518.552(b)(5) as adopted by 29 C.F.R. 1910.12 provides as follows:
Hoist towers may be used with or without an enclosure on all sides. However, whichever alternative is chosen, the following applicable conditions shall be met:
(i) When a hoist tower is enclosed, it shall be enclosed on all sides for its entire height with a screen enclosure of 1/2-inch mesh, No. 18 U.S. gauge wire or equivalent, except for landing access.
(ii) When a hoist tower is not enclosed, the hoist platform or car shall be totally enclosed (caged) on all sides for the full height between the floor and the overhead protective covering with 1/2-inch mesh of No. 14 U.S. gauge wire or equivalent. The hoist platform enclosure shall include the required gates [*13] for loading and unloading. A 6-foot high enclosure shall be provided on the unused sides of the hoist tower at ground level.
The respondent concedes the standard was violated but takes the position that the violation was a non-serious violation rather than a serious violation and that the penalty is, therefore, excessive.
EVIDENCE OF THE CASE
The respondent admits that it is a corporation authorized to do business in the Commonwealth of Virginia with an office and principal place of business at Charlotte, North Carolina, where it is engaged in the business of general construction contracting. It was further stipulated that the respondent's employees have been and do regularly order, receive, handle and work on materials and supplies received directly from points located outside the Commonwealth of Virginia, and by reason of said activities, respondent is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act and is subject to the jurisdiction of the Commission, that on August 1, 1970, to on or about April 14, 1972, respondent was a general contractor for a project in Petersburg, Virginia, for the Brown and Williamson Tobacco [*14] Company at a work site referred to as the Perry Street Addition. It was stipulated that in the course of its business operations in the past year respondent has employed an average of 1,000 construction employees and has an annual dollar volume of business of approximately $50,000,000.
Mr. David W. Meadows testified at the hearing that he has been, for two and one-half years, an employee of Natkin and Company, a subcontractor on the Perry Street project in Petersburg, Virginia. On November 4, 1971, he was working on the material hoist, with a man named Lee Robinson. He stated the hoist was not totally enclosed and was located on the first level of the construction which was 12 to 14 feet above the ground. While on the project, Mr. Robinson, who was not an employee of the respondent, fell from the platform. The witness stated he did not see Mr. Robinson fall, but did see him on the ground. Mr. Robinson died later that day. He stated that the window level was approximately 20 feet off the ground. An employee would get to the window level on a ramp and go from the window to the platform of the hoist. He stated that he (the witness) was, at the time of the accident, working [*15] on the platform of the hoist. Mr. Robinson at the time he fell was handing the witness pipe. He stated the pipe overlaps beyond the hoist, which is the reason the hoist was not flush with the building. He stated that if they had enclosed the entire hoist with screen they could not have put the pipe on it.
Mr. L. C. Ewing, Jr., the Area Director for the respondent, stated that the hoist needs to be enclosed so neither people nor material would fall. He stated that it was also required that there be overhead protection because workmen from above could drop something striking a workman on the hoist. The evidence shows that the building was a four-story building with a basement, making five levels. Mr. James Whitson, Compliance Officer for the respondent testified that Mr. Robinson was not an employee of respondent, but of another subcontractor. He stated there was a mesh screen about waist high on the sides of the hoist but at the time of inspection there was no screen or rail on the side nearest the building. The hoist was about 40 inches from the building, the tower itself went up the side of the building and there was a platform that ran up and down the side of the [*16] tower. The hoist was in use at the time he made his inspection. He saw wheelbarrows being loaded with cement and taken from ground level to the floors of the building. The hoist tower ran all the way to the top. He saw wheelbarrows of concrete removed from the platform into the building. This was at the first level at least 14 feet high. A man would come out the window and walk around on the tower. There were two wheelbarrows on the hoist platform; a man would walk over to one set of handles of the wheelbarrow and push the wheelbarrow inside the building. There was no rail on the outside of the material hoist platform, that is the side furthest from the window. The furthest point from the tower, there was a mesh screen about waist high, near the side of the tower there was a 4 by 4 lathe to the hoist platform railing system, running horizontally. None of the protective devices were above waist high. There was no overhead protection. He was talking to Mr. Lydell the job superintendent at the time he saw this operation. He advised Mr. Lydell that it was very dangerous and Mr. Lydell promised to have it corrected. Mr. Lydell advised him it was a McDevitt & Street employee [*17] that was on the platform. The witness did not observe anyone riding on the platform while the platform was in motion that day. The accident had occurred on the 4th day of November and the inspection was made on the 5th. Cleates had been nailed to the ramp after the accident as an interim measure, the board was secured from flipping. He did not complain about the board to the management, but about the guard. He stated there is no guard on the end and that it was dangerous in walking; that a removable rail which the respondent did have but was not in place needed to be there. The witness stated at first he was not certain that it was a material hoist or working platform within the definition of the terms in the standard and it was only subsequently that it was determined it would fall under the classification of material hoist. He stated that it was decided by his office that the respondent needed a complete enclosure, but that this decision was not made until two months later. The platform was about six and one-half feet square. The hoist tower was about two feet square and was not enclosed. The rail, even if in place, would not, according to the witness have complied [*18] with the standard. He pointed out that the standard required 42-inch high protection and an intermediate rail at the toe board. He said these requirements were not complied with. He did feel that if the guard had been in place, it would have materially reduced the hazard. He did not, at the time of inspection, tell the company what the standard required, he just suggested that they put the guard rail up. He stated the wheelbarrows could have been pushed under the rail and then the employee could have stepped over or under it had the rail been up. He felt the danger resulted in the fact that the material back and forth could fall down on people below without any top protection or a person could fall off without the side guard rails as required by the standards. The guard rail was not attached apparently because it impeded movement of the wheelbarrows. He felt that even if the bar had been up it would have been a serious violation.
Mr. William Lydell stated that he was job superintendent of Brown and Williamson Tobacco Company project, Petersburg, Virginia. Mr. Lydell stated that respondent was the primary contractor on the project. He said that Natkin Construction [*19] Company was the plumbing contractor. According to the witness, Natkin operated the hoist on a regular basis. He stated that he saw the man who had fallen lying on the ground between the hoist and the building. The man fell on November 4, 1971, respondent was not using the hoist on that occasion. He testified the hoist had a little bar across the top which was not on then because it was harder to load wheelbarrows and get them on and take them off. When the inspection took place, the witness instructed that the bar be put on. He stated no other suggestions were made about the hoist at this time. The compliance officer did not complain about the plywood ramp. The compliance officer came in the morning and left in the afternoon. The hoist continued to be used from the time he got there and the time he left. Three men were engaged in working with the hoist. One was on the ground loading wheelbarrows and putting them on platforms and two were upstairs, taking them off. The man on the ground used the switch that brought the hoist up. The height of the hoist was 14 feet. The man on the ground was not directly under it. No employees were in the area other than said three employees. [*20] The project consisted of four stories, including roof and basement. The rail was attached to the hoist most of the time and taken off when wheelbarrows were rolled. The witness testified that a crane had been used on the job and had not been gone from the project long, so they had not used the hoist for a very long time at the time of inspection. He stated Natkin did not frequently use the rail, their material was too long and would not fit with the rail up. He stated the hoist was located as far from the building as it was because it was necessary to do so to get all of the extended material out.
EVALUATION OF THE EVIDENCE
The fact that a violation occurred is not contested. It is the contention, however, of the respondent, that the violation is not a serious violation and it is insisted that I should so find. The evidence does not establish that there was any work on the platform in question, other than the loading and unloading of material from the platform. There is no evidence that anyone rode the platform from the ground to the elevated point. Material was placed on the platform on the ground and the material was removed from the platform once it had reached [*21] the desired level. Apparently, this was the only purpose for which the platform was used. It is apparent that it would not be possible to load and unload through a gate unless the gate was open. It was suggested by one of the witnesses for the plaintiff that had a rail been affixed across the exit from the platform to the building, the person transporting material across the ramp to the building could have rolled the wheelbarrow under the rail and stepped over the rail. This would more nearly complied with the law, but I have serious doubts that this would have increased the safety of the operation. It would seem that there would be more danger to the workmen in stepping over an obstacle such as a rail than there would be in walking across the platform and back, with no rail present. These facts may raise serious question as to the practicability of the standard in the facts of this case.
I am of the opinion, however, that I do not have the authority to pass upon the wisdom or practicability of a standard. Congress has created a procedure known as a request for a variance which would be the proper procedure to reform a standard or to secure an exemption from a standard. [*22] This procedure requires the complaining party to petition the Secretary of Labor and puts within the jurisdiction of the Secretary of Labor the determination of whether or not there should be a variance from the standard. The Review Commission does not enter into this procedure. For me to pass upon the wisdom or the practicability of a standard would be for me to usurp the authority given by Congress to the Secretary of Labor. Considerable debate in the Congressional history of the Act revolved around the question of separation of powers between the judicial arm of the Safety and Health Act and the enforcement arm. It was determined that the Review Commission should be a completely separate entity completely divorced from the Department of Labor and not a part of the Department of Labor. I, therefore, cannot usurp the authority of the Secretary of Labor and "second guess" him as to the wisdom and practicability of the standards created by the Department of Labor. I, therefore, am of the opinion that the facts of this case require a holding that the respondent has violated the standard and is, therefore, in violation of the Occupational Safety and Health Act.
It does not necessarily [*23] follow that I am required to find that the violation was a serious violation as that term is used in the Act. If the facts establish that compliance with the standard would not materially increase the safety of the employees, a serious violation has not occurred. It would have been practical for the respondent to have had an overhead protection, but the evidence is to the effect that such protection was not provided. This is definitely a violation of the Act. The evidence does not establish, however, that the type of objects which might have fallen on the employees would have caused serious injury nor is the probability of such an occurrence thoroughly explored upon the record. I am of the opinion that the danger from overhead is not adequately set forth to justify a finding that the failure to provide overhead protection meets the definition of a serious hazard. It may or may not constitute a serious hazard but the burden of proof which rests upon the plaintiff has not been carried in this regard.
It will also be noted that other sides of the platform were enclosed by a screen mesh which was only waist high. The standard requires enclosure top to bottom. A waist-high [*24] screen mesh, therefore, was not compliance with the standard. I am, however, of the opinion that the likelihood of a waist-high screen not stopping an employee from falling is small. I, therefore, am of the opinion that failure to enclose top to bottom is not a serious violation as said term is used in the statute.
The principal argument of the plaintiff deals with the possibility of a fall from the platform and the failure to have proper guard rail or gate protection. It is true that the evidence shows that a man did fall from the platform to his death when the platform was only 14 feet high. The evidence establishes that this man was not an employee of the respondent and it is not insisted that the absence of a gate was the cause of his fall. The only thing that the fall proves is that a fall from 14 feet could be fatal. If the failure to have the required gate or rail substantially enhances the possibility of such a fall, it would indeed be a serious violation as the result of the fall can be fatal. I am of the opinion, however, that the evidence does not substantiate the contention that the possibility of a fall is materially enhanced by the absence of a gate. It is apparent [*25] that material cannot be moved on and off the platform with something in the way of the progress of the person moving the material. If a gate or guard rail was on the platform, it would be necessary for it to be opened when persons were going on and off the ramp with material. The evidence establishes that the employees were only on the platform when material was being moved on and off the platform. Therefore at all times employees were on the platform the required safeguards would have to have been open and could not, under these circumstances have accorded any protection to the employee. If the furnishing of a gate would have enhanced the safety of the employees, a serious violation has not occurred. It would appear to be equally safe or perhaps safer for a person to walk straight across the ramp without any gate impeding his progress than to walk on to the ramp, have to stop and open a gate and then go through the gate, all of which would prolong his period of time at the elevated position on the ramp and would enhance the likelihood of his fall. I am, therefore, of the opinion that a serious violation has not been proven. As hereinabove stated, the respondent could [*26] and should have had an overhead protection for his employees and this did create some hazard from falling objects and, therefore the standard has been violated. Also as previously stated, the standard does require that a gate protection exist and the failure of the respondent to provide same does constitute a violation of the standard as does the failure to have the screen mesh sides go top to bottom of an enclosure. While I can and should weigh the danger created by this violation in determining the amount of the penalty and whether or not a serious violation has occurred, I cannot, as above stated, weigh the practicability of the standard in determining that it applies to this case.
I, therefore, am of the opinion that a violation has occurred and that a penalty in the amount of $200 would be appropriate. I, therefore, make the following findings of fact.
FINDINGS OF FACT
1. Respondent McDevitt & Street Company is a corporation authorized to do business in the State of Virginia with its principal office and place of business in Charlotte, North Carolina, where it is engaged in business as a general construction contractor.
2. At all times relevant to this cause [*27] respondent has been engaged in construction work in several states and was engaged in a business affecting commerce as that term is defined by the Act.
3. Respondent, on or about November 5, 1971, at its project at Perry Street Addition, for Brown & Williamson Tobacco Corporation, Petersburg, Virginia, failed to totally enclose and provide overhead covering for and to provide access gates on a material hoist platform on which employees were engaged in unloading materials.
4. Said material hoist platform was only used for loading and unloading of materials and employees were on said platform only while actually loading and unloading materials.
5. An employee of another employer on the job site did fall from said platform and was killed.
6. The fall from said platform is not established by the evidence to have been a result of the failure to provide either overhead covering or access gates on said material hoist platform.
7. The risk to the safety of the employees on said platform, would not have been materially reduced by placing higher sides or access gates on said platform.
8. There was danger of falling objects from above striking employees on said platform.
CONCLUSIONS [*28] OF LAW
1. Respondent, was on November 5, 1971, and at all other times relevant to this cause engaged in a business affecting commerce and, therefore, the Occupational Safety and Health Act applies to the respondent and the Occupational Safety and Health Review Commission has jurisdiction of this cause.
2. Respondent by failing to have an access gate on said platform, failing to have overhead protection on said platform and failing to completely enclose same top to bottom violated section 5(a)(2) of the Occupational Safety and Health Act and Occupational Safety and Health standard 29 C.F.R. 1518.552(b)(5) as adopted by 29 C.F.R. 1910.12.
3. Said violation was not a serious violation as defined by the Act and standards.
ORDER
It is ordered that respondent, McDevitt & Street Company is in violation of section 5(a)(2) of the Occupational Safety and Health Act, and Occupational Safety and Health Standard 29 C.F.R. 1518.552(b)(5) as adopted by 29 C.F.R. 1910.12.
The abatement date as set forth in the citation is sustained.
The respondent is assessed a penalty for said violation in the amount of $200.