Connelly Construction Corp.

Read the official release (oshrc.gov)

Plain-English summary

Connelly performed masonry work from multi-level scaffolding at a shopping mall construction site. The judge found serious violations for employees without hard hats, inadequate scaffold access, missing overhead screening above a building entrance, and unguarded stairways. The principal scaffold-guardrail item was willful because supervisors knew guardrails were required but delayed installation to meet the construction schedule and continued exposing employees after OSHA identified the hazard. A second guardrail instance involving a plankway was combined into that willful item. The separate scaffold uplift-pin item was vacated because OSHA did not prove that the forklift could lift the relevant scaffold frames. The proposed willful penalty was reduced from $56,000 to $25,000 based on abatement efforts, and total penalties of $29,500 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(d)(10), 1926.451(d)(6), 1926.100(a), 1926.451(a)(13), 1926.451(a)(6), and 1926.1052(c)(1)
• Outcome: Four serious items and a combined willful guardrail item were affirmed, one scaffold uplift item was vacated, and total penalties of $29,500 were assessed.
• Key point: Schedule pressure does not excuse knowingly using unguarded scaffolds, especially after OSHA points out the hazard.

Full text (OSHRC public release)

                            United States of America
      OCCUPATIONAL SAFEYN AND HEALTH REVIEW COMMISSION
                       1120 20th Street, N.W., Ninth Floor
                          Washington, DC 20036-34 I9



                                                                    Phone: (202) 606-5400
                                                                     Fax: (202) 6063050

SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NO. 95-1392
CONNELLY CONSTRUCI’ION CORP.,
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRATIVE IAW JUDGE’S DECISION
 The Administrative Law Judge’s Re ort in the above referenced case was

docketed with the Commission on July s 1996. The decision of the Judge
will become a final order of the Commiskon on August 2, 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 Secre on or before
July 23 1896 in order to ermit sufficient time for its review.T ee
Comm&sion Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mid, Esq.
Counsel for Regional Trial IAi ation
Office of the Solicitor, U.S. DOc
. Room S4004
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
havmg questions about review rrghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: July 3, 1996 Ray H. Darling, Jr. ’
Executive Secretary
DOCKET NO. 95-1392
NOTICE IS GIVEN TO THE FOLLOWING:

Deborah Pierce-Shields
Re ‘onal Solicitor
off ce of the Solicito:, U.S. DOL
14480 Gatewa Builhg
3535 Market Htreet
Philadelphia, PA 19104

James F. Sassaman, Director. of
Safety
GBCA
36 South 18th Street
P.O. Box 15959
Philadelphia, PA 19103

Robert A, Kom, Esq.
Kom & Cohn
Plymouth Meeting Executive Campus
620 West Germantown Pike
Suite 450
Plymouth Meeting, PA 19462

John H. Frye, III
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00123255150:03
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY'AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR
Complainant

          v.                                  Docket   Nr.   95-1392

CONNELLY CONSTRUCTION CORP.,
Respondent

Appearances

 Thomas S. Williamson,    Jr., Esq.    Robert A. Kern, Esq.
 Solicitor of Labor                          PlymoutkMeeting,      PA

 Deborah Pierce-Shields,    Esq.        James F. Sassaman
 Regional Solicitor                     General Building Contractors
                                                Association, Inc.
 John M. Strawn, Esq.                         For Respondent
 Attorney

U.S. Department of Labor
Philadelphia, PA
For Complainant

BEFORE: JOHN H FRYE, III, Judge, OSHRC

                                DECTSION AND ORDER

IL INTRODUCTION

    This case involves an action filed by the Secretary of Labor pursuant

to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. §§651-678, (the Act). Respondent, Connelly Construction Company, is

a corporation with its principal address at 1126 Upper State Road, .

Montgomeryville, PeIXLSylVania. At all times relevant to this matter it
maintained a worksite at the King of Prussia Mall in King of Prussia,

Pennsylvania, (the worksite).

  On June 8-29, 1995, Compliance        Safety and Health Officer George Boyd

of the Allentown area office of the Occupational Safety and Health

Administration (OSEA) conducted m inspection of the worksite. The

inspection revealed violations of regulations promulgated by the Secretary

at 29 C.F.R. §I926 pursuant to Section 5(a) (2) of the Act. As a result,

five serious, one willful, and one repeat citation were issued to Respondent

on August 21, 1995. Following Respondent's
timely notice of contest, the
.
complaint in this matter was filed on October 11, 1995. Trial of this case

took place on March 5, 1996, in Philadelphia. Jurisdiction over the subject

matter and the parties has been established. .
'.

  A.               rd of Proof

  To establish a violation       of any standard, Complainant must establish

by a preponderance of the evidence that the standard is applicable, that the

employer violated the standard, that at least one employee was exposed to or

had access to the resulting hazard, and that the employer knew of the.
I
hazard. Astra Pat -I 9 BNA OSHC 2126, 2129 (No. 780

6247, 1981); aff'& 681 F.2d 69 (1st Cir. 1982).

  B.      citation 2. Item 1,

  29 C.F.R. 91926.451(d) (10) provides:

  Guardrails made of lumber, not less than 2x4 inches (or other material
  providing equivalent protection), and approximately 42 inches high,
  with a midrail of 1x6 inch lumber (or other material providing
  equivalent protection) I and toe boards, shall be installed at all open
  sides and ends on all scaffolds more than 10 feet above the ground or
                                         2                                               .

floor. Toe boards shall be a minimum of 4 inches in height. Wire
mesh shall be installed in accordance with paragraph (a) (6) of this
section.

     This standard required guardrails on Respondent's scaffolding       on this

worksite. Respondent has conceded that violations existed on both the south

and east sides of the building (Tr. 136, 137, 138). Respondent disputes

the willful characterization of the violation.

     The Secretary contends that the citation is properly classified       as

willful for several reasons. First, Respondent's foreman, Richard O,Neill,

and job superintendent, John Pica, knew of the requirement for guardrails,

but did not supply them because they were being pushed to complete the job.

(Tr. 152, 180, 181). The Secretary believes'that this knowing disregard of

the fall hazard constitutes a willful violation.

     Second, after Mr. Boyd raised the issue on June 8, 1995, the Secretary

contends that Respondent allowed its employees to continue to work on

unguarded scaffolding. The Secretary urges that his videotape shows two

employees working on unguarded scaffolding on June 9, 1995 (GX 1 3:5O -

5:20). At trial, Mr. Pica testified that he brought midrails to the .

worksite on the afternoon of the eighth after being informed that OSHA

wanted them. He further testified that on Monday, the twelfth, he purchased

two-by-fours to be used as top rails and delivered those to the site. .

According to Mr. Pica, the installation of guardrails began on the eighth

and continued until the end of the job. The Secretary maintains that, even

if Mr. Pica's testimony is accepted, it is clear from the video tape that

work continued on the unguarded portions of the scaffolding, thus exposing

employees to the hazard on the ninth.
.

                                      3

The Secretary contends that the exposure of employees to the

significant fall hazards was pervasive and justifies a willful

classification. He argues that on the eighth, employees working on the east

side of the building were in close proximity to the unguarded, outside edge

of the scaffolding from the fifth and sixth frames (32% to 39 feet high) (GX

1 at 0:OO - 0:50, 2:30 - 3:30; Tr. 13, 16, 37). He further argues that on

the ninth, after having been advised by Mr. Boyd of the violation,

Respondent continued to expose its employees to the hazard. (GX 1 at 3~50 -

4:30; Tr. 27-28, 29-30, 37, 115) - .

     Respondent counters the Secretary's position with the following

arguments. First, Respondent attacks Mr. Boyd's credibility. (See

Respondent's brief, pp- 2-7.) Respondent's attack is not sufficient to call

Mr. Boy&s testimony into Serious question. Moreover, it appears aimed

principally at Mr. Boyd's testimony that he had previously advised Mr.

OrNeil of the need to guard scaffolding, and that this furnished 10% of the

basis for the willful classification of this violation. Mr. Boyd's

testimony sharply conflicts with Mr. O,Neill,s on this point, and the

latter's memory appears to be the more reliable. However, in his brief the

Secretary does not rely on this purported conversation to support the

willful classification, and I have not considered it.

     Second, Respondent points out that while Mr. Boyd found that Mr.

OrNeil knew of the need to guard the scaffolding, he questioned whether Mr.

OWeill understood the need to guard walkways connecting separate scaffolds.

Respondent maintains that this is inconsistent. If Mr. 0,Neill did not

appreciate the seriousness of the hazard in the second situation, it should

                                      4

be assumed that similarly, he did appreciate it in the first. However, Mr.

Boyd testified that Mr. OlNeill clearly knew that guarding was required for

the scaffolding, had installed it on the top level, and admitted that the

press of the construction schedule had prevented him from installing it

elsewhere. In contrast, Mr. Boyd testified that Mr. O*Neill did not seem to

appreciate the seriousness of the fall hazard associated with the short span

of planking connecting one scaffold structure to another. Rather than being

inconsistent, Mr. Boyd appears to have been sensitive to the state of Mr.

O'Neill's awareness of potential hazards. The differing classifications of

these two violations does not tend to mitigate the willful citation.

  Respondent   relies on Secretary v. Hartford Roofing Co., 17 OSHC 1361

(Rev. Coma 1995). Apparently, Respondent believes that this case parallels

Hartford in that Mr. O'Nei.11 was confused about the requirements for the

guarding of scaffolds. Respondent points to MT, Boyd's classification of

one citation as willful and one as serious and to the confusion in the
.
testimony concerning whether Mr. Boyd had in fact instructed Mr. OlNeill on

the fall protection requirements. The record does not support this

position. Mr. O'Neill testified that he was aware of the fall protection

requirements, but had not implemented them because of schedule

considerations. (Tr. 152.) Mr. Pica testified to the same effect. (Tr.

180-81.)

  Respondent apparently also takes the position that the schedule

considerations dictated by the general contractor frustrated its efforts to

prevent a violation, pointing to language in Hartford which indicates that a

violation should not be classified as willful in the face of an employer's

                                                                          .
                                        5

good faith efforts to prevent it. However, the press of work can never

properly be considered to excuse or mitigate a violation. The requirements

of the Act must not be subjected to the dictates of schedules. Otherwise, .

the purpose of the Act to assure safe workplaces would be undermined.

Secretary v. Somner Buildings, Inc., 17 OSHC 1117 (ALJ 1995)' relied on by

Respondent is not to the contrary. The fact that the press of work may have

inhibited the Sommer's foreman in complying with the standard was not

considered. There, the Sommer's interpretation of the standard, although .

unreasonable, was found to be insufficient, by itself, to support a willful

citation. . .

  Secretary v. Atlantic Battery Company,        16 OSHC 2131 (Rev. Comm. 1994)'

relied on by Respondent, similarly is distinguishable from the instant case.
.
In Atlantic Battery, the Commission found that the respondent had engaged in .

a good faith effort to bring its operations into compliance and had made

extensive changes in its procedures as a part of that effort prior to the

inspection. No such effort has been shown in this case.

  This hazard easily could have been abated.          Nothing more sophisticated

than securing two by fours to the scaffold frame was necessary. In

addition, only the actively used sections of scaffolding had to guarded.

Respondent's course of conduct of failing to guard the scaffolding because

the general contractor was rushing their work and continuing to expose its

employees to the fall hazard on June 9, 1995 after the inspector pointed out

the hazard constitutes an indifference to employee safety which the willful

designation was created to address and deter. Williams Enterprises, Inc.,

13 BNA OSHC 1249, 1256-59 (No. 85-355, 1987). It is not unlike that course

                                        6

of conduct found properly classified as a willful violation in Universal

Auto Radiator Manufacturing Company v. Marshall, 631 F.2d 20, 23, 8 OSHC

2026, 2028-29 (3d Cir. 1980). There, a manufacturer deliberately removed a

safety device from a power press because it slowed operations excessively

and proceeded to use a device which was specifically disapproved by the

standard. Here, Respondent proceeded to work from scaffolds which it knew

lacked required safety devices (guardrails) because of the press of the

construction schedule. The Commission found that a similar set of facts

involving unguarded scaffolding constituted a willful violation in Sal

Masonry Contractors, snc., 15 BNA 1609, 1613-1614 (Rev. Comm. 1992).

    The Secretary proposes a $56,000 penalty.        Presumably, this was

calculated in accord with the procedures set out in TI C.2.m. of the OSHA

Field Inspection *Reference Manual. (See Tr. 42.) Those procedures dictate

a $56,000 penalty for a high severity violation by an employer of 51-100

employees who is not entitled to any penalty reductions other than for size.

I find this amount to be excessive in these circumstances. Here, the

willful classification results principally from the fact that Respondent

continued to expose employees to the hazard after it was pointed out by Mr.

Boyd. However, Respondent did not ignore the hazard. Both Mr. O'Neill and

Mr. Pica took steps to abate it. The former testified that the guardrails

were being installed when Mr. Boyd arrived and that that process continued.

(Tr. 160-61.) The latter testified that he purchased and delivered material

to the worksite for this purpose. (Tr. 184.) "Abatement efforts subsequent

to the citation ... may be considered in evaluating a Respondent's good

faith for purposes of determining the penalty." Secretary of Labor v. Acme

                                       3

Fence & Sron Company, Inc., 7 BNA OSHC 2228 (Rev. Comm. 1980). Moreover,

neither Mr. OrNeil nor Mr. Pica questioned the requirement for guardrails,

nor did either illustrate an attitude of indifference toward it. I find

that a penalty of $25,000 is appropriate. .
Cf. Field Inspection Reference .

Manual, q C.2.m. (1) (AI4.

   C.

   29 C.F.R.    §1926.451(d)(6) provides:

   Where uplift may occur, panels shall be locked together vertically by             .
   pins or other equivalent suitable means.

   Mr. Boyd speculated that Respondent's forklift could place its prongs

either under the scaffold frame or planks. (Tr. at 46.) Because only the

top two scaffold frames were locked together, Mr. Boyd concluded that,

should this occur, there was nothing to give ‘substantial resistance" to the

lull and indicate to the operator that he was lifting the scaffold. (Tr. at

49.)

   This is insufficient to meet the Secretary's burden of persuasion.            '

Because the top two frames were locked together, the lull necessarily could

not accidentally lift less than these two frames should it make contact with

the scaffolding anywhere within them, and would lift three or more frames

should it make contact with the scaffolding anywhere below the top two

frames. In order to conclude that "uplift may occur,,' I must assume that

the lull had sufficient capacity to lift at least the weight of the top two

scaffold frames. No evidence was presented as to either the lifting * . .

capacity of the lull or the weight of the scaffold frames. Consequently the

Secretary did not demonstrate that uplift might have occurred at this

worksite. Citation 1, item 3, is vacated.

                                       8

D. Citation 1, Item 1.

  29 C.F.R. §1926.100(a) provides:

  Employees working in areas where there is a possible danger of head
  injury from impact, or from falling or flying objects, or from
  electrical shock and burns, shall be protected by protective helmets.

  mloyees      are required to wear hard hats where a hazard exists.       The

Secretary's video tape shows a number of employees working without hard hats

(GX 1 at 0:OO - 0:55). They are shown working on scaffold frames while

other employees are working above them (GX 1 at 0:40 - 0:55; 2:30 - 3~30).

Most importantly, employees walked under the scaffolding and beneath

sections with active work proceeding (Tr. 19, 21, 22). The employees were

obliged to use a building entrance beneath the scaffolding to obtain access

to the scaffold (GX 1 at 0:50 - 1:24; Tr. 167-69).

  Serious injuries would occur should tools or materials fall on

employees below. On June 8, 1995, the work on the fifth frame was 32% feet .

above employees using the entrance- Moreover, neither screening nor toe

boards were in place to minimize the chance of objects falling to the

entrance below (Tr. 55, 56). .

  Respondent's   position expressed in its brief is that proper

consideration of the factors set out in 5 17(j) of the Act would dictate

that the proposed $1,200 penalty be reduced. However, Respondent has

furnished no substantial reason in support of its position. Citation 1,
.
item 1, is affirmed and a $1,200 penalty assessed.

  E.    Citation 1, Item 2

  29 C.F.R. §1926.451(a) (13) provides that N [a]n access ladder or

equivalent safe access shall be provided?

                                     9

Respondent did not provide safe means of access to all levels of its

scaffolding at the worksite. On June 8, 1995, on the east side of the

building, employees had to walk under the scaffolding, enter the building,

walk up an unguarded stairway, and cross the unguarded scaffolding to reach
.
a ladder which would take them to the fifth frame where work was proceeding .

(Tr. 62-64). To reach the sixth frame they had to climb the exterior of the

scaffolding (GX 1 at 0:20 - 0:40; Tr. 17 1 . Respondent failed to ensure that

it had ladders or equivalent safe access sufficient to reach all of the

active working levels on its scaffolding

  The external     frame of the scaffolding, which was used in some

instances by employees, was not intended to act as a ladder (Tr. 64, 65).

The rungs are unevenly spaced, have increasingly narrow widths, and do not

extend the entire height of the scaffold frame (GX 1 at 3:25 - 3:30). such

a scaffold frame does not provide an equivalent or safe means of access and
.
thereby constitutes a serious violation.

  Respondent    notes that it did provide ladders, pointing            to Mr. Boyd's               .

testimony that there were several ladders on the worksite (Tr. at 61).

Relying on Borton, Inc., v. OSHRC, 734 F. 2d 508, 11 BNA OSHC 1921 (10th
.
Cir. 1984), Respondent argues that it need only provide ladders, and that

the standard does not require it to ensure their use. However, Mr. Boyd

made clear that the ladders or other means of safe access were not available

at all levels of the scaffold. (Tr. 62-63.) In order to satisfy the

standard, Respondent must at least provide ladders in places where they are

readily available for use by all employees working at all levels of the

scaffold. Siravo Contracting, Inc., 17 BNA OSHC 1013, 1015 (ALJ

                                           10

1994) . The fall hazard from the sixth level of the scaffolding was 39 feet.

Death is the probable result of such a fall. The Secretary established all

the elements of a serious violation. The citation is affirmed and a penalty

of $1,200 assessed.

  F.       citation 1, Item 3

  29 C.F.R. 91926.451(a) (6) provides:

  Where persons are required to work or pass under the scaffold, '
  scaffolds shall be provided with a screen between the toe board and
  the guardrail, extending along the entire opening, consisting of No.
  18 gauge U.S. Standard wire g-inch mesh, or the equivalent.

  Respondent    did not provide screening on the scaffolding above the

entrance on the east side of the building (Tr. 66, 67). Employees had to .

use this entrance to access the scaffolding on the east side of the building

(Tr. 69). Respondent created an obvious hazard by proceeding with the .

masonry work without screening the sections of scaffolding above this

entrance- Respondent did not deny that it failed to screen its scaffold

over the entrance. However, in its brief Respondent takes the position that

the Secretary failed to establish that Mr. OlNeill was #aware of the

violation. Clearly, ML O*Neill was aware that the entrance was located

under the scaffold and either knew or should have known that the screening

was absent. Moreover, the Secretary did establish that the lack of

screening was in plain view. (See Tr. 67.)

  Respondent was performing masonry work on the fifth and sixth frames

above the entrance on June 8, 1995 (GX 1 at I:20 - 1:24; Tr. 56). Bricks, '

hand tools or other objects could have fallen over 30 feet onto employees

below and caused serious injury (Tr. 67, 68). The Secretary established all

of the elements of a serious violation; a penalty of $900 is assessed.

                                       11

G. Citation 1, Uzem 4
.
29 C.F.R. §1926.1052(c) (1) provides:

    Stairrails and handrails.   The following requirements apply to all
    stairways as indicated:
           (I) Stairways having four or more risers or rising more than 30
          inches (76 cm), whichever is less, shall be equipped with:                         .
                 (i) At least one handrail; and
                 (ii) One stairrail system along each unprotected side or                        .
                 edge.                                                           .
    Note: When the top edge of a stairrail system also serves as a
    handrail, paragraph (c) (7) of this section applies.

    Respondent's   employees were obliged to use the stairway on June 8 on               .

the east side of the building to access its scaffolding (Tr. 19, 21, 22,

69) . The stairway had no guardrails or handrails. Some metal studs were in ' .

place but were not adjacent to each flight of stairs or landings to prevent .

a fall from the stairway (Tr. 132).

    Respondent was aware of its employees use of the stairway.      CSHO Boyd            .

and Mr. O'Neill witnessed one employee using the stairway on June 8, 1995.

Indeed, Mr. O'Neill testified that he and his employees used the stairway
.
(Tr. 167-69). .

    In its brief, Respondent points out that the cited standard states, at .

29 CFR § 1926.1052(c)(12), that -[g]uardrail system criteria are contained

in subpart M of [Part 19261." Respondent's reliance on 5 1926.1052(c)(12)

is misplaced. By its terms, that provision applies only to landings, not to
.

stairways.

    The fall hazard created by the lack of guardrails was from 12 to 18

feet depending on which flight or landing an employee fell from (Tr. 70).

Serious injuries, however, could result from such falls (Tr. 71) 0 The.

                                       12

Secretary has established all the elements of a serious violation; a penalty '

of $1,200 is assessed.

  H.       atats,on 1, 1-m     5

  As set forth in section B above, guardrails were required on

Respondent's scaffolding pursuant to 29 C.F.R. §1926,45l(d)(lO). An

unguarded plankway consisting of several adjacent but unsecured boards

connected two scaffold towers on the east side of the building on June 8,

1995 (Tr. 24, 71) - The plankway was located on the fifth scaffold f&me

(Tr. 72).

  As shown on the video tape, employees used the plankway to cross from

one tower to the other and performed work form it (GX 1 at 0:OO - 0:50; 2~30

• 3:30). The absence of guardrails on the plankway was an obvious hazard .

that Mr. O'Neill was aware of (Tr. 72, 73). Serious injuries could have

occurred from a fall to the ground 32% feet below (Tr. 74).

  The Secretary did not combine this item into Citation 2, item 1,

because he viewed it as constituting a separate hazard that may not have

been as apparent to Mr. O'Neill as the absence of guardrails along the

scaffolding itself (Tr. 72). Respondent admits to the violation, but

objects that this item involves the same standard and same abatement as

Citation 2, item 1. Respondent, relying on Secretary of Labor v. LA. Jones
.

Construction Company, 15 BNA OSHC 2201, 2207 (Rev. Comm. 1993), argues that

the two should be combined as a single serious violation. Respondent is

correct; this item is added as a separate instance to Citation 2, item 1. .

The willful classification of and penalty for Citation 2, item 1 remains

unchanged.

                                        13

III CONCLUSIONS OF m

  A.       Respondent is an employer engaged in a business   affecting

commerce within the meaning of section 3(S) of the Occupational Safety and

Health Act of 1970, as amended, 29 U.S.C. § 652(S) ("the Act").

  B.       Jurisdiction of this proceeding is conferred upon the
                                                                               .. .

Occupational Safety and Health Review Commission by section 10(c) of the

Act, 29 U.S.C. § 659(c).

Citation 1, Item 1.

  C.       Respondent was in serious violation of the standards set out at

29 CFR §§ 1926.100(a). A penalty of $1,200 is appropriate.

Citation 1, Item 2.

  D.       Respondent was in serious violation of the standard set out at

29 CFR 5 1926.451(a) (13). A penalty of $1,200 is appropriate.

Citation 1, Item 3.

  E.       Respondent was in serious violation of the standard   set out at

29 C.F.R. § 29 CFR 9 1926.451(a) (6). A penalty of $900 is appropriate.

Citation 1, Item 4. .. .

  F.       Respondent was in serious violation of the standard   set out at

29 C.F.R. § 29 CFR 9 1926.1052(c)(l). A penalty of $1,200 is appropriate.

Citation 1, Item 5; Citation 2, Item 1.

  G.       Respondent was in willful and serious violation   of the standard

set out at 29 C.F.R. § 29 CFR § 1926.451(d)(lO). A penalty of $25,000 is

appropriate.

Citation 3, Item 1.

                                     14

H. Respondent was not in violation of the standard set out at 29

C.F.R. S 1926.451(d)(6).

IV. ORDER

     A.      Citation 1, Items 1, 2, 3, and 4 are affirmed as serious

violations of the Act.

     B.      Citation 1, Item 5, and Citation 2, Item 1, are affirmed as

willful and serious violations of the Act.

     c.      A total civil penalty of $29,500 is assessed.




                                                 JOHN    FRYE, II I     .
                                                  udge I OS&C

Dated: j&-3t39& :
Washington, D-C.

                                       15