Docket No. 442

BILTRITE FIXTURE CO., INC.

OSHRC Docket No. 442

Occupational Safety and Health Review Commission

May 3, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, Commissioner; This matter is before the Commission on my order directing review of a decision made by Judge David G. Oringer. By his decision and upon the admissions of Respondent, Judge Oringer concluded that Biltrite had failed to abate six non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The Judge also concluded that Complainant's proposed daily penalties totalling $2,465 were not "inordinate." However, in "balancing the equities" he determined that that portion of the penalties in excess of $750 should be suspended on the condition that Biltrite remain in compliance with the standards it had violated for a period of six months following the entry of a final order in this case. Under the terms of his order the full sum of $2,465 would immediately become due and payable should Respondent violate the conditions.

On review I requested submissions on the following questions: (1) whether the Commission has authority to issue an order of the type entered by the Judge herein, and (2) assuming existence of the authority, [*2] in such order consistent with the Act's purposes. n1 We have reviewed the record. For the reasons given hereinafter we reverse the Judge's order to the extent that it suspends penalties, and we assess an aggregate penalty of $750 against Biltrite for its failure to abate.

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n1 The dissenting opinion is directed to an issue which the parties have not raised, tried, or briefed at any stage of this proceeding. The issue was not raised by a direction for review.

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We need not decide the question of whether we have the statutory authority because we are convinced that an order suspending penalties will be inappropriate in the usual case. The situation contemplated by the Judge's decision is that a Respondent will either repeat a violation or continue to fail to abate the original violation. As regards a repeated violation Complainant has authority to issue a new citation under section 9(a) n2 and propose a penalty for a willful or repeated violation. n3 If on the other hand an employer continues the original [*3] violation, Complainant may either seek enforcement of our order in the appropriate court of appeals n4 or may issue a new notification for failure to abate and propose additional daily penalties. Since the Act contains provisions for dealing with the situation contemplated by the Judge's order we see no need in this case for creating an additional means for handling the situation.

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n2 29 U.S.C. 658(a).

n3 29 U.S.C. 666(a).

n4 29 U.S.C. 661(b).

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Indeed, it is difficult to conceive of a case wherein a suspension of a penalty will serve a useful purpose. On the other hand, were we to suspend a portion of a penalty found appropriate for a first violation and then reinstate the suspended portion upon the occurrence of a second violation, it could be said that the Act's purposes are not furthered. This is so because each violation will occur in its own factual context, and each situation should be examined accordingly.

We turn now to the matter of appropriate penalties in this case. The case arose in 1971 and is therefore [*4] one of the early cases under the enforcement provisions of the Act. The Judge's decision evidences this fact for it speaks in terms of Complainant's penalty proposals for failure to abate as if they were penalty assessments. As has been said, Complainant's authority is limited to the proposal of penalties; the Commission has sole authority to make penalty assessments in contested cases. Brennan v. Interstate Glass Company, 487 F.2d 438 (8th Cir. 1973).

It appears that Judge Oringer was of the opinion that a penalty of $750 was sufficient to accomplish the Act's purposes and used the device of suspension to achieve this result. In any event, we believe $750 to be appropriate.

Respondent has no prior history of violations. The violations herein occurred early in the Act's history at a time when many employers had no actual knowledge of its requirements nor of the requirements of Complainant's standards. Under the circumstances Respondent's failure to abate should be construed as negligence rather than as a conscious failure to comply. This conclusion is also supported by the fact that full correction of the non-serious violations involved was achieved on the [*5] day following reinspection. We do not, therefore, find Respondent's failure to have been made in bad faith. Biltrite's annual gross is $500,000 and it is therefore a relatively small employer. Finally, Complainant's original proposed penalties indicate that the violations (all of which were non-serious) were of relative low gravity.

Accordingly, the Judge's order is reversed. Respondent has failed to abate as alleged and a civil penalty of $750 is assessed for such failure. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Itis error for the Commission to assess any penalty in this case. The respondent did not violate 29 U.S.C. § 659(b) on any of the dates alleged because the reinspection was prematurely conducted.

The initial citation was issued on November 15, 1971, and provided for abatement of all violations on November 27, 1971. On the basis of a reinspection conducted on December 10, 1971, the respondent was notified that it had failed to correct the majority of the violations asserted in the original citation. This notice also advised the respondent that additional penalties had been proposed for each day that the violations remained unabated [*6] between November 27th and December 10th. The Judge found that the respondent had failed to abate the violations for 12 days during this period. This was error.

An employer cited for violating the Act has 15 working days after receipt of the notification of proposed penalty to contest the citation on which the penalty proposal is based. When, as here, the employer does not contest that citation, the citation does not become a final order of the Commission until the 15 working days have passed 29 U.S.C. § 659(a). Accordingly, the citation in this case could not become a final order, or be otherwise binding or enforceable against this respondent, at any date earlier than December 7, 1971.

The abatement period specified in a citation does not begin to run until the citation has become a final order of the Commission 29 U.S.C. § § 659(b) and 666(d). Any other interpretation would deny a cited employer the full 15 day period to decide whether or not to contest. The abatement period here was a period of at least 12 days. n5 That period was presumably established because it would take that much time to correct the cited conditions. Therefore, the respondent should have that [*7] much time to abate, beginning on the date the citation becomes binding and enforceable. December 20, 1971, was the respondent's legal deadline for abatement. Consequently, respondent was under no legal obligation to complete the abatement on December 10th, the date on which this failure to abate was alleged.

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n5 This has been computed in this case as the number of days between the date the citation was issued and the date specified therein for abatement. It is recognized, however, that it could well have been the difference between the abatement date specified on the citation and the date of inspection. Since either method of calculation would make the re-inspection premature, no further discussion of this issue will be undertaken in this case.

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It is noted that on November 2, 1971, the date of the first inspection, the inspector orally notified the respondent's assistant general manager that the abatement date would be November 27th. n6 That notification has no legal efficacy and does not alter the abatement date [*8] as computed above because an abatement date may not be established by an oral communication. A citation must be issued in writing, and the specification of an abatement date is an essential part of a citation. 29 U.S.C. § 658(a).

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n6 This indicates that the inspector believed that 25 days would be needed to accomplish abatement. See note 5, supra.

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The foregoing is based on rather clearly stated statutory provisions. The authority for this Commission to find a violation of the provision under which this respondent was cited is limited by the statute. We cannot find a failure to abate if the time allowed for abatement has not yet expired. Such a defense need not be specially pleaded. It is raised by the mere fact that the respondent denies the allegations in the citation. It's similar to charging a person on December 31, 1973, with violating a law scheduled to go into effect on January 1, 1974. A mere denial of guilt is sufficient to raise the inapplicability of the requirement on the date the [*9] charge was filed, notwithstanding the ipsedixitism contained in footnote, 1, supra.

[The Judge's decision referred to herein follows]

ORINGER, 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 a Citation issued by the-Complainant against the Respondent under the authority vested in Complainant by Section 9(a), of the Act. The Citation alleges that as the result of the reinspection made on December 10, 1971, of the workplace under the ownership, operation or control of the Respondent, located at 3500 Park Avenue, Bronx, New York, and described as follows, "Manufacturer of store fixtures," the Respondent was found to have failed to abate six of seven violations of the Secretary's standards for which he was previously issued a Citation, and Notification of Proposed Penalties in the amount of $81.25, which Citation and Notification of Proposed Penalty, Respondent failed to contest. Respondent offered no explanation for its failure to abate, other than that he had been on vacation and upon his return was unable to find the Citation which had been issued to [*10] him on November 15, 1971.

A Notification of Failure to Correct Violation and of Proposed Additional Penalty was issued on December 27, 1971, proposing an additional penalty of $2,465, for failure to abate the continued violations found in a follow-up inspection made on December 10, 1971.

On January 6, 1972, Respondent filed with the Secretary of Labor, a notification of its intent to contest the Notification of Failure to Correct Violation and of Proposed Additional Penalty in the amount of $2,465, issued December 27, 1971, and further, Respondent stated its intent not to contest the prior Citation and Proposed Penalty, issued November 15, 1971, which had become final by operation of law.

After Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing in New York City, on February 28, 1972, at 10:00 a.m.

The Citation, which was issued on November 15, 1972, alleges that the violations result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register on May 28, 1971, at 8:45 a.m. (Vol. 36, F.R. 105), and codified in 29 C.F.R. 1910. The description [*11] of the alleged violations contained on said Citation states:

(a) 29 C.F.R. 1910.316(a), in that improper extension cords were used for portable tools which did not provide grounding.

(b) 29 C.F.R. 1910.314(d)(4)(iii)(c), in that the following portable electric tools were ungrounded: 2 hand drills, 2 disc sanders, 1 belt sander, 1 jack hammer and 3 routers.

(d) 29 C.F.R. 1910.252(c)(4)(ii), in that no fireproof curtain was maintained for the welding area.

(e) 29 C.F.R. 1910.157(a)(5), in that the fire extinguishers were unmounted.

(f) 29 C.F.R. 1910.157(d)(3), in that the fire extinguishers were not checked or recharged as required.

(g) 29 C.F.R. 1910.22(a)(1), in that poor housekeeping of aisles and passageways was found.

The standard as promulgated by the Secretary provides as follows:

(a) 29 C.F.R. 1910.316(a) -- flexible cords and cables and their associated fittings shall be suitable for the condition of use and location . . .

(b) 29 C.F.R. 1910.314(d) -- Under any of the conditions of this subparagraph exposed, noncurrent-carrying metal parts of fixed equipment, [*12] which are liable to become energized, shall be grounded . . . (4)(iii)(c) -- Portable, hand held, motor operated tools, and appliances of the following types; drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws . . .

(c) 29 C.F.R. 1910.133(a) -- General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards . . .

(d) 29 C.F.R. 1910.252(c)(4)(ii) -- Fire curtains. For the protection of the operators of nearby equipment, fire-resistant curtains or suitable shields shall be set up around the machine and in such a manner that the operators movements are not hampered . . .

(e) 29 C.F.R. 1910.157(a)(5) -- Mounting of Extinguishers. Extinguishers shall [*13] be installed on the hangers or in the brackets supplied, mounted in cabinets, or set on shelves unless the extinguishers are of the wheeled typed . . .

(f) 29 C.F.R. 1910.157(d)(3) -- Maintenance. (i) At regular intervals, not more than 1 year apart, or when specifically indicated by an inspection, extinguishers shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed . . .

(g) 29 C.F.R. 1910.22(a)(1) -- Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition . . .

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated November 15, 1971, from Nicholas D'Archangel, Area Director of the New York area, Occupational Safety and Health Administration, U.S. Department of Labor, that in establishing the penalty of $81.25, he had set forth the agreed upon abatement date of November 27, 1971, and had taken into consideration the good faith and size of employer, the history of previous violations as well as the gravity of the violations as measured by the likelihood [*14] of an accident occurring therefrom, the severity of possible accident, and the extent to which the standard was violated.

As a result of a reinspection made on December 10, 1971, by an authorized representative of the Secretary, the latter alleged failure by Respondent to abate all but one of seven (7) violations, to wit, the one identified as Item (f) in the Citation, 29 C.F.R. 1910.157(d)(3), described as follows:

Maintenance. (i) At regular intervals, not more than on year apart, or when specifically indicated by an inspection, extinguishers shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed . . .

No other violations had been abated.

A further Citation dated December 27, 1971, was issued and, on even date, a Notification of Proposed Additional Penalties totaling $2,465, was mailed to the Respondent for failure to abate the alleged continued violations found during the reinvestigation of December 10, 1971.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at New York, New York, on February 28, 1972, at 10:00 a.m. [*15]

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citation, Notification of Proposed Penalty, Notification of Failure to Correct Violation and of Proposed Additional Penalty, Notice of Contest, pleadings representations and admissions of the parties, it is concluded that substantial evidence on the record considered as a whole, supports the following

FINDINGS OF FACT

1. The Respondent, Biltrite Fixture Company, Inc., is incorporated under the laws of the State of New York, with its principal place of business located in the Borough of the Bronx, City and State of New York (T-5).

2. The Respondent does an average gross business of approximately $500,000, and employs approximately fifty (50) workers (T-5).

3. Biltrite Fixture Co., Inc. receives and handles goods, such as refrigerators, freezers and other fixtures, which originate from or are received from out of state sources (T-5).

4. On November 2, 1971, a compliance officer of the Secretary of Labor made an inspection of the Respondent's workplace (T-11).

5. During his inspection the compliance officer discovered seven (7) alleged violations of the [*16] Act (T-12).

6. The violations were explained to Mr. Fuchs, the Respondent's representative, who was also advised that he would probably receive a Citation and Notification of Proposed Penalty. Mr. Fuchs agreed with the compliance officer on an abatement date of November 27, 1971 (T-12, 13).

7. On or about the 15th of November, 1971, a Citation was issued by the Complainant to the Respondent, alleging seven (7) violations of standards promulgated by the Secretary, pursuant to Section 10 of the Act (Citation, T-74, 75).

8. On or about the 15th of November, 1971, the Secretary issued to the Respondent a Notification of Proposed Penalty in the aggregate sum of $81.25 (Notification of Proposed Penalty, T-14, 21).

9. The Respondent did not contest the original Citation and Notification of Proposed Penalty within fifteen (15) days after receipt thereof (T-8, 9, 75, 76).

10. A reinspection was made on December 10, 1971, by an authorized representative of the Secretary who again spoke to Mr. Daniel Fuchs, general manager of the Respondent. Mr. Fuchs informed the said representative that he had not abated any of the violations previously found with the sole exception of [*17] the failure to recharge the fire extinguishers, identified as (f) in paragraph 7, above. Mr. Fuchs offered no explanation for the failure to abate, other than that he had been away on vacation and that when he had returned he could not find the Citation (T-22, 68).

11. That on December 11, 1971, all of the above violations were abated (T-74, 75).

12. As a result of the reinvestigation made on December 10, 1971, Respondent corporation was issued a further Citation on December 27, 1971, and on the same date a Notification of Failure to Correct Violation and Additional Penalty was mailed to Respondent proposing an additional penalty of $2,465, for failure to abate the continued violations found on the reinvestigation (T-74, 75).

13. The Respondent's failure to correct its failure to provide proper extension cords, and to ground tools, could reasonable be expected to result in severe electric shocks to employees; failure to provide face and eye protection and fireproof curtains in the welding area, in serious eye injury; and improper maintenance of fire extinguishers and poor housekeeping, in dangerous fire hazards and danger of tripping (T-56, 59).

14. The follow-up [*18] inspection to check upon abatement was assigned to the OSHA representative within a day or two after the abatement date of November 27, 1971, with instructions to him for preferential handling (T-31, 32). The follow-up inspection was made on December 10, 1971, twelve (12) days after the abatement date. In determining the amount of the proposed penalty, a uniform policy was followed by the Secretary, that is, the credit previously given for abatement was removed, and the Respondent was assessed a penalty equal to the unadjusted penalty originally assessed for each of the twelve days the previously cited violations continued after the prescribed abatement period (T-38, 41). Following this formula, total penalties were assessed at $2,465 (T-41).

15. The Respondent had conceded proper service of the two Citations and Notifications of Penalties involved in this matter. The Citations and notice of time and place of hearings were posted by Respondent on its premises in a place conspicuous to employees between its office and shop (T-6).

DISCUSSION

In the instant cause the Respondent's workplace was inspected initially after some difficulty in gaining access to the premises and, predicated [*19] upon such inspection, the Respondent was subsequently issued a Citation by the Secretary for seven (7) non-serious violations of standards promulgated pursuant to Section 6(a) of the Act. Simultaneously therewith, the Respondent was issued a notification of proposed penalties aggregating $81.25. The Respondent did not contest the Citation or proposed penalties and no objection being made by any employee representative, the Citation and the proposed assessment became a final order of the Commission, pursuant to Section 10(a) of the Act. During the original inspection on November 2, 1971, the violations were discussed by the Secretary's representative with Mr. Fuchs, the Respondent's representative, and an abatement date of November 27, 1971, was decided upon.

A reinspection was made on December 10, 1971, and the Respondent's representative, Mr. Fuchs, stated that he had not abated any of the violations except the failure to recharge the fire extinguishers, identified as item (f) in Findings of Fact #7. As a further penalty for failure to abate six (6) of the violations the Secretary proposed to assess penalties aggregating $2,465.

The Respondent admits failure to abate [*20] all violations other than recharging the fire extinguishers. The Respondent, however, alleges abatement of the violations on the day after the reinspection, to wit, on December 11, 1971, and no evidence being in the record to the contrary, the Judge accepts this contention as veritable.

The Judge takes note in passing that on Page 55 of the transcript, both witnesses for the Secretary, Mr. Caron and Mr. Murphy, testified in essence, that there were no standards that mandated the use of fire extinguishers or designated the number thereof, and that if there were none on the premises, Respondent would not have been cited. The Respondent argued, in view of the testimony of the Secretary's representatives, that it was inequitable and unjust to suffer two (2) violations when it would not suffer any such citation if it had no fire extinguishers at all. This would be a telling argument if the Secretary's representatives had been correct in their testimony. The Judge, however, takes judicial notice that 29 C.F.R. 1910.157(c) contains standards promulgated by the Secretary which delineate the number and type of fire extinguishers necessary in a workplace, and that those standards [*21] became effective on August 2, 1971.

The Respondent argues that the Secretary controls the amount of the penalty inasmuch as an earlier reinspection would result in a lesser penalty for failure to abate, and a later reinspection would result in a greater penalty. The Judge finds this argument of little merit. Whether or not a penalty should issue for failure to abate is wholly within the power of the Respondent! It is within its power and discretion to abate whatever violations exist. In the instant cause, the Respondent immediately abated after the reinspection and exposure to enlarged penalties. It could have avoided its exposure to enhanced penalties by timely abatement.

Congress, in enacting the legislation under which the standards were promulgated, stated its policy was "to assure so far as possible every working man and woman in the nation safe and healthful working conditions. . ." One of the main remedies was to provide for abatement of violations. This was the paramount concern of the Congress. In the vernacular of the street, "Abatement is the name of the game."

Mindful of the Respondent's reluctance to grant ingress to the Secretary's representative, and its slothful [*22] and careless attitude in proceeding to abatement, the Judge nevertheless is of the opinion that one must balance the equities and decide what will best advance the intent and spirit of the Act. In the instant cause, abatement took place on December 11, 1971. The violations that the Respondent failed to abate were other than serious. While the penalty proposed by the Secretary is not unreasonable and is within the purview of the Act, n1 the Judge is of the opinion that the purpose of the Act will be best effectuated by suspending the operation of that part of the penalty in excess of $750, on condition that in the event this decision becomes a final order of the Commission, the Respondent pay the penalty of $750, plus the original penalty of $81.25, within ten (10) days after receipt of the Commission's final order, and failure so to do, or in the event that the Respondent is found in violation of any of the same standards found violated in this cause, within six (6) months after the final order is received, then the entire penalty will be reinstated.

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n1 In Secretary of Labor v. General Meat Company, Inc.,

. . . We note that such action by the Commission is not to be construed as encouragement to employers to avoid voluntary compliance with the standards promulgated by the Secretary. Nor would such interpretation comport with the plain terms of the statute, for section 17(d) of the Act provides that:

"Any employer who fails to correct a violation for which a Citation has been issued under section 9(a) within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 10 initiated by the employer in good faith and not solely for delay or avoidance of penalties), may be assessed a civil penalty of not more than $1000 for each day during which said failure or violations continues."

Thus, an employer who misinterprets a citation without penalty and fails to correct the condition subjects himself to liability for the considerable penalty authorized to be imposed under section 17(d).

[*23]

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Based upon all of the foregoing, and the record in its entirety, the Judge makes the following:

CONCLUSIONS OF LAW

1. At all of the times herein mentioned, the Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act.

2. At all of the times herein mentioned, the Respondent was, and still is, subject to the provisions of the Occupational Safety and Health Act of 1970 (84 Stat. 1604, 29 U.S.C. 651 et seq. ), and the regulations promulgated thereunder including 29 C.F.R. Chapter XVII Part 1910, published on April 27, 1971, and effective on August 27, 1971.

3. The Respondent on November 2, 1971, was in violation of the following standards duly promulgated pursuant to section 6 of the Act:

(a) 29 C.F.R. 1910.316(a), in that improper extension cords were used for portable tools which did not provide grounding.

(b) 29 C.F.R. 1910.314(d)(4)(iii)(c) in that the following portable electric tools were ungrounded: 2 hand drills, 2 disc sanders, 1 belt sander, 1 jack hammer and 2 routers.

(d) 29 C.F.R. 1910.252(c)(4)(ii) in that no fire proof curtain was maintained for the welding area.

(e) 29 C.F.R. 1910.157(a)(5) in that the fire extinguishers were unmounted.

(f) 29 C.F.R. 1910.157(d)(3) in that the fire extinguishers were not checked or recharged as required.

(g) 29 C.F.R. 1910.22(a)(1) in that the poor housekeeping of aisles and passageways was found.

4. The determination that the aforegoing violations were of a non-serious nature and the penalty proposed therefor was not unreasonable.

5. The Respondent did not contest the Citation or notification of proposed penalties within 15 days after receipt, thereof and no objection having been received from any employee or employee representative in such period of time the original citation and assessment, as originally proposed, became a final order of the Commission by operation of law, pursuant to Section 10(a) of the Act.

6. The Respondent on reinspection made on December 10, 1971, was found to have failed to correct the following six violations found on November 2, 1971, and which were to have been abated by November 27, 1971:

(a) 29 C.F.R. 1910.316(a), [*25] in that improper extension cords were used for portable tools which did not provide grounding.

(b) 29 C.F.R. 1910.314(d)(4)(iii)(c) in that the following portable electric tools were ungrounded: 2 hand drills, 2 disc sanders, 1 belt sander, 1 jack hammer and 2 routers.

(d) 29 C.F.R. 1910.252(c)(4)(ii) in that no fireproof curtain was maintained for the welding area.

(e) 29 C.F.R. 1910.157(a)(5) in that the fire extinguishers were unmounted.

(g) 29 C.F.R. 1910.22(a)(1) in that poor housekeeping of aisles and passageways was found.

7. The reinvestigation to ascertain whether abatement had been achieved, was expeditiously assigned to an OSHA representative and the follow-up check made on December 10, 1971, was not an unreasonable length of time after the abatement date of November 27, 1971.

8. While the penalty of $2,465, proposed to be assessed herein by the Secretary for failure to abate for a period of twelve (12) days is not inordinate, the purpose and intent of the Act will be best effectuated by suspending the operation of that part of the penalty in excess of $750, [*26] on condition that in the event this decision becomes a final order of the Commission and no legal impediment remaining, the Respondent does the following:

(a) Pays a penalty of $750, for failure to abate plus $81.25, for the original penalties, within ten (10) days after the order becomes final, and

(b) The Respondent does not violate the same standards that he was found to have violated in the original Citation issued November 15, 1971, for a period of six (6) months after the order becomes final.

9. In the event that the Respondent violates either 8(a) or 8(b) above, then and in such case the residue of the penalty assessed for failure to abate, shall be reinstated as if not suspended.

Based upon the foregoing findings of fact, conclusions of laws and the entire record, having given due consideration to the size of the Respondent's business and its gross annual volume of only approximately $500,000, the hazards found in such business; the non-serious nature of the violations, and the presence or absence of good faith of the Respondent in abating the violations prior to the reinspection, and its history, and good cause appearing therefor, it is ORDERED THAT

1. The original [*27] Citation dated November 15, 1971, was affirmed by operation of law pursuant to section 10(a) of the Act.

2. The original penalties in the sum of $81.25, proposed to be assessed against the Respondent on November 15, 1971, was affirmed by operation of law pursuant to section 10(a) of the Act.

3. The Secretary's notification of Failure to Correct Violation and of proposed additional penalties in the aggregate sum of $2,465, is affirmed, however, that part of the penalty in excess of $750, is herewith suspended under the following conditions:

(a) In the event that this decision becomes a final order of the Commission, the Respondent shall forthwith transmit certified checks for $750, and for $81.25, to the Secretary, within ten (10) days after the final order is issued, and

(b) The Respondent does not violate the same standards that he was found to have violated in the Citation issued November 15, 1971, for a period of six (6) months after the order becomes final.

(c) In the event that the Respondent violates either 3(a) or 3(b) above, then and in such case the residue of the penalty assessed for failure to abate shall be reinstated as if the operation thereof was not [*28] suspended. SO ORDERED