National Engineering & Contracting Company

Plain-English summary

National Engineering & Contracting was the general contractor on an Ohio
Department of Transportation soil-erosion project along a ravine in Lakewood,
Ohio. A 28-ton Grove crane overturned into the ravine on August 19, 1994,
injuring the operator, which prompted an OSHA inspection and two citations. The
Secretary withdrew several items before the hearing, leaving a training item, a
seat-belt item, and a defective-ladder item in the serious citation, plus a
willful citation blaming the crane's overturn on failure to extend outriggers,
failure to use cribbing, and failure to assess ground conditions.

Judge Paul L. Brady vacated the entire willful citation. The company's expert
showed the load was within the crane's on-rubber lifting capacity, the crane
was set on a level concrete-and-asphalt surface where the manufacturer did not
require cribbing, and the Secretary offered no expert proof that the ground was
foreseeably unstable. The training item was also vacated because the underlying
conditions were not found to be violations. Two items were affirmed as serious:
the operator habitually failed to wear the crane's seat belt while traveling and
the company had not communicated or enforced its own rule (§ 1926.95(a)),
and a warped, pitted portable ladder was left in service without being tagged or
removed (§ 1926.1053(b)(16)). The unpreventable-employee-misconduct defense on
the seat belt failed. Total penalty: $2,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2), § 1926.95(a), § 1926.1053(b)(16), § 1926.550(b)(2), § 1926.550(a)(1)
• Outcome: Willful crane citation (all items) and the training item vacated; seat-belt item affirmed serious $1,500; defective-ladder item affirmed serious $1,000; total $2,500
• Key point: A crane overturn is not automatically a willful violation; the Secretary must prove the specific setup breached the manufacturer's limits, but seat-belt and defective-equipment rules must still be communicated and enforced.

Full text (OSHRC public release)

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United States of America
OCCUPATIONAL SAFETY AND HEALXEI REVIkW COMMISSION
1120 20th Street, N-W., Ninth Floor
Washington, DC 20036-34 19

                                                                                     Phone:(202)606-5400
                                                                                      Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 95-0137
NATIONAL ENGINEERING & CONTRACTING
Respondent.

                         NOTICE OF DOCKETING
                  OF ADMINISTRATWE  LAW JUDGE’S                       DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed withtheCommission on April4,1996. The decision of the Judge
will become a final order of the Commissfon on May 6, 1996 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR ~DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
April 23, P996 in order to emit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti a tion
Office of the Solicitor, U.S. DO%
Room S4004 P
200 Constitution Avenue, N .W .
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rrghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: April 4, 1996 Ray H. Darling Jr.
Executive Secretary
DOCKET NO. 95-0137
NOTICE IS GIVEN TO THE FOLLOWING:

Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Kent W. Seifried, Es .
Poston, Seifried & SC
% loemer
500 Campbell Towers
403York Street
Newport, KY 41071

Paul L. Brady
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 240
1365 Peachtree Street, N-E.
Atlanta, GA 30309 3119

00103545562:OS
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMtSSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119

Phone: (404) 347-4 197 Fax: (404) 347-U 13

SECRETARY OF LABOR,
Complainant,
..
v. .. OSHRC Docket No. 95-137
.

NATTONAL ENGINEERING & CONTRACTING :
COMPANY, ..
Respondent. ..
..

APPEARANCES

        Janice L. Thompson, Esq.                                     Kent W. Seifkied, Esq.
                 Office of the Solicitor                                     Poston, Seitied & Schloemer
                 U. S. Department of Labor                                   Newport, Kentucky
                 Cleveland, Ohio                                                       For Respondent
                          For Complainant

Before: Administrative Law Judge Paul L. Brady

        National Engineering & Contracting Company (National Engineering) contests two citations

issued by the Secretary on December 21, 1994. The Secretary issued the citations following an
inspection conducted by Occupational Safety and Health Administration (OSHA) compliance officer
Frank Coffelt. Coffelt’s inspection took place at National Engineering’s worksite near the
intersection of Riverside Drive and Madison Avenue in Lakewood, Ohio. National Engineering
employee Edward Ruthsatz had been injured when a crane overturned on August 19,1994. This
accident prompted the OSHA inspection.
 National Engineering is a construction company whose headquarters are in Strongville, Ohio.
It was the general contractor under a contract with the Ohio Department of Transportation (ODOT)
for a project to prevent soil erosion. Riverside Drive in Lakewood (State Route 237) follows a
ravine that threatened parts of the road. National Engineering’s job was to remove 12 feet of
pavement and construct an erosion wall 1,928 feet long under the pavement to prevent future erosion
(Tr. 22,39,3 17). To build the support wall, National Engineering drilled caissons into which H-
beams were sunk (Tr. 468). While moving mats for a Spiradrill, which was used to drill caissons
at the edge of the ravine, a 2%ton Grove crane overturned (Tr. 3536,96).
Prior to the hearing, the Secretary withdrew Items 1,3,5,6, and 7 of Citation No. 1, and

instances 3,5, and 6 of Item 2 of Citation No. 1 (Tr. S-8). Subsequent to the hearing, the Secretary
withdrew the alternative alleging a violation of 29 C.F.R. 6 1926.550(b)(2) in Item lb of Citation
No. 2, leaving the alternative alleging a violation of 29 C.F.R. 6 192655O(a)( 1). Remaining at issue
are Items 2,4, and 8 of Citation No. 1, and Items la, lb, and lc of Citation No. 2.
Citation No. 1 .
Item 2: Alleged Serious Violation of 29 C.F.R. 6 1926.21 (bm
The Secretary alleges that National Engineering committed a serious violation of
6 1926.2 1(b)(2), which provides:
The employer shall instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work environment to control
or eliminate any hazards or other exposure to illness or injury.

    The Secretary cited National Engineering for three specific instances of alleged failure to

instruct employees in the recognition and avoidance of UIlsafe conditions: (1) the improper use of
outriggers, (2) the absence of matting, and (3) the location of the crane in proximity to the edge of
the ravine. As determined ~JZ$&National Engineering was not in violation of any standard due to
its decision not to use outriggers or matings. Nor did National Engineering violate any standard due
to its location of the crane.
At the hearing, the Secretary elicited testimony regarding National Engineering’s instructions
to its employees on hazardous conditions. Compliance officer Coffelt detemked through his

observations and employee interviews that (Tr. 355):

                                              2

[Tlhe employees were not instructed:how to avoid these conditions. They may have
been instructed of the tinditions ande certainly hcMrvto recognize the conditions.
There is a second prong to the &ndard which requires employees take action to
avoid the un&e conditions. I don’t believe that was accomplished in this case.

   Employee Edward Ruthsatz, who was operating the Grove crane when it overturned, testified

that he did not go through apprentice training to learn how to operate a crane, but learned “ljlust by
watching other people and working with other operators” (Tr. 484). Ruthsatz also testified regarding
National Engineering’s “safety meetings” (Tr. 520-52 1):
Q.: Now, did you ever attend safety meetings when on the site?

   Ruthsatz: If they had meetings, I attended them, yes.

   6.: And, was there a discussion or did they pass a sheet around? How was it done?

   Ruthsatz: The foreman generally brought a sheet of paper around.

   Q.: And you read the sheet?

   Ruthsatz: If you took the time to read it, yes. If it wasn’t about you, I normally didn’t. I
   signed it.

   Q.: Did the safety meetings ever cover site conditions at the erosion wall project?

   Ruthsatz: No.

   Q.: Were there ever any specific instructions for operators working in hazardous areas?

   Ruthsatz: Not on that job, no.

   Q.: Have you attended any training courses through the union or other organizations?

   Ruthsatz: On safety?

   Q.: On safetetyor crane operations.

   Ruthsatz: No.

   Q. Have you received any form of disciplinary action in terms of a safety rule violation in
   regard to the overturned crane?

Ruthsatz: No.

    Ruthsatz was shown a weekly safety meeting form which he had signed the Monday before

his accident (Exh. C-13; Tr. 522). The form contains safety tips for crane operators. When asked
ifthe exhibit refreshed his memory regarding the safety meeting, Ruthsatz responded, “This is not
a safety meeting. It was brought up to me in my pick-up truck at about quarter to 6:00 in the
morning because I started a 6:O0. Everybody else started at 7:00, but me and another laborer started
at 6:O0. I signed it and went to work” (Tr. 523).
While the evidence shows that National Engineering’s safety training was sparse, the
Secretary has failed to establish unsafe conditions as alleged. In the discussion of the willful
citation, jn#xz,it is concluded that National Engineering’s decision not to use outriggers or matting,
and to locate the crane where it did were not violations of the cited standards. Thus, it cannot be said
that National Engineering failed to instruct its employees in the recognition and avoidance of unsafe
conditions, when the conditions cited are not deemed unsafe.
The Secretary has failed to establish a violation of 29 C.F.R. 6 1926.21(b)(2).
Item 4: Alleged Serious Violation of 29 C.F.R. 6 1926.95(a)
The Secretary alleges that National Engineering committed a serious violation of
8 1926.95(a), which provides:
Protective equipment, including personal protective equipment for eyes, face, head,
and extremities, protective clothing, respiratory devices, and protective shields and
barriers, shall be provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a manner
capable of causing injury or impairment in the function of any part of the body
through absorption, inhalation or physical contact.

   The Secretary contends that National Engineering violated this standard because Ruthsatz

did not wear a seat belt while moving the Grove crane. The Secretary does not contend that the
crane operator was required to wear a seat belt while setting up for a pick. The operator is required
to wear a seat belt while traveling in the crane along a roadway. The Secretary specifies in the
citation that the seat belt in the Grove crane was “not worn during over-the-road traveling.”
 National Engineering’s safety manual contains a rule under “Motor Vehicles and Mechanized
Equipment,” which provides, “Buckle your sat belt before operating” (Exh. C-20, p. 20). National
Engineering’s policy was that “seat belts on the picker were to be worn if they were out in traffic and
they were driving like a vehicle” (Tr. 85).
The 28.ton Grove crane was equipped with a standard seat belt (Tr. 84). Ruthsatz admitted
that he never used the seat belt during any operation (Tr. 359,488). He stated that he had never been
told by National Engineering superintendent Michael Heam or anyone else with National
Engineering to wear a seat belt when traveling over the road (Tr. 487).
National Engineering argues that 29 C.F.R. 8 1926.95(a) does not encompass seat belts.
However, under the identical General Industry Standard, 6 1910.132(a), the Review Commission
has recognized “that seat belts are a form of protective equipment.” Ed ChefLogging, 9 BNA
OSHC 1883, 1888 (No. 77-2778, 198 1). The same reasoning applies here. Section 1926.95(a)
applies to seat belts.
National Engineering also argues that it had no knowledge that Ruthsatz was not wearing his
seat belt. While the Secretary does not contend that the Company had actual knowledge, he argues
that with the exercise of reasonable diligence National Engineering could have known of Ruthsatz’s
habitual failure to wear a seat belt. Superintendent Heam stated that, despite National Engineering’s
policy that seat belts be worn, “I don’t recall going up to see if Iputhsatz] did have one or he didn’t
have one, or was wearing it or not wearing it” (Tr. 85). Where a cited condition is “readily apparent
to anyone who looked,” employers have been found to have constructive knowledge. Hamilton
Fixture, 16 BNA OSHC 1073,109l (NO. 88-1720, 1993).

    National Engineering asserts the af&mative defense of unpreventable employee misconduct

with regard to this item. To establish the af&mative defense of unpreventable employee
misconduct, the employer must prove: “(1) that it has established work rules designed to prevent the
violation; (2) that it adequately communicated these rules to its employees; (3) that it has taken steps
to discover violations; and (4) that it has effectively enforced the rules when violations have been
discovered.” Nooter Construction Co., 16 BNA OSHC 1572, 1578 (No. 91-0237, 1994). While
National Engineering did have a work rule requiring its employees to wear safety belts, it did not
adequately communicate that rule to Ruthsatz, nor did it take steps to discover violations or enforce
the rule.
The Secretary has established that National Engineering violated 6 1926.95(a). That the
violation was serious is demonstrated by the severity of Ruthsatz’s injuries in this case.
Item 8: Alleged Serious Violation of 29 C.F.R. 6 1926.1053@)(16)
Section 1926.1053@( 16) provides:
Portable ladders with structural defects, such as, but not limited to, broken or missing
rungs, cleats, or steps, broken or split rails, corroded components, or other faulty or
defective components, shall either be immediately marked in a manner that readily
identifies them as defective, or be tagged with “Do Not Use” or similar language, and
shall be withdrawn from service until repaired.

     Coffelt observed National Engineering Superintendent John Karason use a 20-rung portable

aluminum ladder positioned against the ravine embankment (Exh. C-12; Tr. 363). The side rails of
the ladder were warped and several of the rungs were pitted and warped (Exhs. C-26, C-27; Tr. 364-
366) .
William Bunner, National Engineering’s safety director, stated that “if a ladder is defective,
our rule is to remove it from service” (Tr. 300). National Engineering argues that the aluminum
ladder at issue “had been removed from service and placed in an out-of-service area.” Coffelt
testified, however, that when he photographed the ladder as it appears in Exhibits C-26 and C-27,
“[i]t was laying flat on the concrete pad”(I’r. 441). There was nothing to indicate that the ladder had
been marked as defective, tagged, or removed from service..
National Engineering also implies that the ladder was only used on an emergency basis to
aid in the rescue of Ruthsatz. Nothing in the record supports this implication (Tr. 436-439).
The hazard created by National Engineering’s failure to remove the ladder was that the rungs
or the side rails could collapse, resulting in fractures and multiple injuries for the employee using
the ladder (Tr. 367). The violation was serious.
Citation No. 2
Item 1a: Alleged Willful Violation of 29 C.F.R. 6 1926.550@)(2),
or. Altemativelv. of 29 C.F.R. 6 1926.55O(aul~.
 The Secretary alleges that National Engineering willfully violated 29 C.F.R. 6
1926.550(b)(2), or, in the alternative 29 C.F.R. 6 1926.550(a)(l).* Section 1926.550(b)(2)
incorporates ANSI B30.5.1968, Section 5-3.2.3(I), which provides in pertinent part:

    Outriggers shall be used when the load to be handled at that particular radius exceeds
    the rated load without outriggers as given by the manufacturer for that crane.

    The Secretary charges that National Engineering failed to extend the outriggers and

stabilizers on the Grove crane. The outrigger pads were down but not extended (‘I?. 233,5 IO-511).
The day of the accident, Ruthsatz placed an outrigger pad 24 to 30 inches from the edge of the
remaining asphalt road surface along the ravine. The outrigger on the other side of the crane was
lined up with the concrete barriers used to close one lane of traffic. If fully extended, the outrigger
would have been in the lane of traffic (Exhs. C-7, C-l 8; Tr. 508-5 10).
The Grove crane has two capacity charts. One capacity chart is used for the operation of the
crane on outriggers, and the other is used for the operation of the crane on ‘Lbber,” or tires (Exh. C-
14). In a situation such as the one in the instant case, where the outriggers are down but not fully
extended, the rubber chart is used to calculate the crane’s lifting capacity (Tr. 155).
Ruthsatz’s operating radius was approximately 25 feet (Tr. 514,543). The boom length was
approximately 45 feet, and the angle was between 40 and 50 degrees (Tr. 5 11, 5 13). Robert
DeBenedictus, a crane and rigging safety consultant, testified for National Engineering (Tr. 131).
He calculated that the 280ton Grove crane operated at a 25.foot radius has a lifting capacity of 5,120
pounds without the outriggers extended (Tr. 148). The mats lifted by the crane were each 24 feet
long, 4 feet wide, and 10 inches thick. DeBenenictus viewed the mats and calculated their weight
to be approximately 4,000 pounds (Tr. 148-149). This is consistent with Ruthsatz’s estimate that

   1 Section 1926.550(b)(2) provides in pertinent part:

   All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design,
   inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968,
   Safety Code for Crawler, Locomotive and Truck Cranes.

                                                   7

the mats were between 2,000 and 5,000 pounds (Tr. 489).2 Adding the weight of the load block, the
weight of the ribbing, and any other apparatus on the machine, such as a stowed jib, DeBenedictus
calculated a total weight of 4,666 pounds (Tr. 149).
The weight of the mats was within the lifting capacity of the 28-ton Grove crane as given on
the rubber chart. The Secretary has failed to establish a violation of 29 C.F.R. 0 1926.550(b)(2).
In the alternative, the Secretary alleges that National Engineering violated 29 C.F.R. 0
192655O(a)( l), which provides in pertinent part:

     The employer shall comply with the manufacturer’s specifications and limitations
     applicable to the operation of any and all cranes and derricks.

     The Secretary has failed to show that National Engineering did not follow the manufacturer’s

specifications. He cites to a rule in National Engineering’s safety manual that states that outriggers
must be fully extended before lifting with cranes (Exh. C-20, pp. 11,12). But the operator’s manual
for the Grove crane, which contains the manufacturer’s specifications, states (Exh. C-21, p. 4-17):

     THE OUTRIGGERS MST BE FULLY EXTENDED AND SET BEFORE ANY
     OTHER OPERATION OF THE CRANE IS ATTEMPTED, UNLESS LIFTING ON
     THE RUBBER.

    National Engineering was lifting on the rubber in this case, and the pick was within the

crane’s lifting capacity. The alleged violation has not been established.
Item lb: Alleged Willful Violation of 29 C.F.R. 5 1926.55O<a)(l)
The Secretary charges that cribbing was not used to distribute the load where firm footing
was not supplied for the Grove crane along the ravine, in violation of 29 C.F.R. 8 1926.55O(a)( 1).
Coffelt testified that the crane was not set up on the concrete pavement (Tr. 383-384,433).
National Engineering used no timbers, cribbing, or other structural members under the Grove crane

      2 John DeLuca, National Engineering’s vice president general superintendent at the time of the accident,

testified that the weight of the mats varied %om two to three tons depending on the type of timber used and the
amount of dirt on them” (Tr. 275). DeBenedictus’s estimate of 4000 pounds is deemed the more credible one.
DeBenedictus actually measured the mats and based his weight calculations on these measurements, taking into
account the type of wood used.

                                                     8

(Tr. 380). Coffelt did not observe the crane as it was actually set up. He only viewed the area after
the crane had fallen into the ravine.
Ruthsatz testified that the crane “had all four wheels up on the black top” (Tr. 472). The
crane was 24 to 30 inches from the edge of the road surface (Tr. 509). Ruthsatz explained that “we
never used cribbing because we was on concrete asphalt” (Tr. 536). Ruthsatz’s statements regarding
the position of the crane on the asphalt is corroborated by Zane Scott, Ruthsatz’s assistant, who was
present when the crane was set up (Tr. 472): “[we had all four wheels up on the black top. . . and
we had the [outrigger] pad down approximately about a foot and a half from the culvert.” They
testified the concrete was 8 to 9 inches thick with a reinforced base; the asphalt overlaying the
concrete was 4 to 6 inches thick (Tr. 120,542).
The manufacturer’s capacity chart for the Grove crane contains “Notes to Lifting Capacities,”
which states in part (Exh. C-14):
The crane shall be leveled on a firm supporting surface. Depending on the nature of the
supporting surface, it may be necessary to have the structural supports of sufficient strength
under the outrigger floats or tires to spread the load to a larger bearing surface.

   The operator’s manual states, “Use adequate cribbing under outrigger floats to distribute

weight over a greater area. Check frequently for settling” (Exh. C-21, p. 2-14).
Nothing in the manufacturer’s specifications requires that cribbing be used in the
circumstances of the present case. Ruthsatz set the crane on a level, hard surface. The Secretary has
failed to establish that National Engineering violated 29 C.F.R. $ 1926.55O(a)( 1).
Item lc: Alleged Willful Violation of 29 C.F.R. 5 1926.550(b)<2jYor,
in the alternative. of 29 C.F.R. 6 1926.55O(a-x1)
The Secretary alleges that National Engineering violated 29 C.F.R. 5 1926.550(b)(2), or, in
the alternative, 29 C.F.R. 6 1926.550(a)(l), by failing to adequately assess the ground conditions
before the crane was used to move the timber mati. The Secretary cites ANSI standard 6 5-l. 11.1(d)
of B30.5.1968, as incorporated by 29 C.F.R. 0 1926.550(b)(2):
The effectiveness of these preceding stability factors will be influenced by such
additional factors as freely suspended loads, track, wind or ground conditions,
condition and inflation of rubber tires, boom lengths, proper operating speeds for
 existing conditions, and, in general, careful and competent operation. All of these
shall be taken into account by the user.

     DeBenedictus concluded that the crane fell into the ravine because of loss of ground support

(Tr. 210-211).
The Secretary contends that this loss of ground support was foreseeable, given the conditions
known about the area in which National Engineering was drilling. These conditions, as cited by the
Secretary, include: The worksite was a soil erosion project to buttress a road that threatened to slide
into a ravine; 12 feet of the road had been removed to excavate the trenck 35 to 40 feet Tom where
Ruthsatz set up the crane; National Engineering had drilled into an existing sewer line the preceding
month (Tr. 333-336); there were six manholes in the area (Exh. C-4; Tr. 24,320); and the week
before the accident there had been “heavy” rain3
DeBenedictus testified that Tom his observation of the accident site, he determined that the
soil conditions provided proper ground support for the crane (Tr. 159). DeBenedictus did not believe
that the crane operator or the work crew could have anticipated the loss of ground support (Tr. 160).
The Secretary offered no expert testimony explaining why the conditions he cited necessarily
lead to a conclusion that the area where Ruthsatz set up was unstable. The crane was set up on a
level concrete and asphalt Surface. The fact that there were manholes in the area or an old sewer line
40 feet away do not mandate a conclusion that the ground beneath the roadway was unstable. The
only expert who testified at the hearing stated that he would not have done “anything different than
this operator on this crew” (Tr. 160).
The Secretary has failed to establish that National Engineering did not adequately assess the
stability of the ground, under either 29 C.F.R. 0 1926.550(b)(2) or 550(a)(l).
Penaltv Determination
The Commission is the final arbiter of penalties in all contested cases. Under section 17(j)
of the Act, in determinin g the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good

     3 Coffelt testified that he contacted the National Weather Service and learned that on August 13,1994,

six days before the accident, the rainfall “was in excess of three inches” (Tr. 385).

                                                    10

faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.
National Engineering employed approximately 500 employees (Tr. 358). It had a history of
previous violations (Tr. 357). There was no evidence of bad faith on National Engineering’s part.
It is determined that $2,500.00 is an appropriate penalty. Item 4 of Citation No. 1 concerns
National Engineering’s failure to ensure that its crane operator was wearing a seat belt while moving
the crane. The gravity of this offense is high. A penalty of $1,500.00 is assessed. The gravity of
Item 8 of Citation No. 1 is moderate. A penalty of $l,OOO.OO
is assessed.

                  FINDINGS OF FACT AND CONCLUSIONS OF LAW
    The foregoing decision constitutes the findings of.fact and conclusions of law in accordance

with Federal Rule of Civil Procedure 52(a).

                                           ORDER
   Based upon the foregoing decision, it is hereby ORDERED that:
    1.     Item 2 of Citation No. 1, alleging a violation of 29 C.F.R. $ 1926(b)(2), is vacated

and no penalty is assessed;
2. Item 4 of Citation No. 1, alleging a violation of 29 C.F.R. 8 1926.95(a), is afkned
and a penalty in the amount of $1,500.00 is hereby assessed;
3. Item 8 of Citation No. 1, alleging a violation of 29 C.F.R. 0 1926.1053(b)( 16), is
affirmed and a penalty in the amount of $1 ,OOO.OO
is hereby assessed;
4. Items la and lc of Citation No. 2, alleging violations of 29 C.F.R. 9 1926.550(b)(2),
or, in the alternative, of 29 C.F.R. 6 1926.55O(a)( l), are hereby vacated and no penalty is assessed;
5. Item lb of Citation No. 2, alleging a violation of 29 C.F.R. 5 1926.550(a)(l), is
vacated and no penalty is assessed.

                                                        ISI PAUL L. BRADY
                                           PAUL L. BRADY
                                           Judge

Date: March 25,1996

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