White Electrical Construction Company

Plain-English summary

White electricians worked on an elevated Jacksonville transit line beside an active track carrying quiet, remotely operated trains. The foreman knew the unusual site and train-control procedures but gave only general warnings, provided no communication device to the remote crew, and used no barricade at the junction between construction and active service. An employee entered the active area and was struck and killed. Judge Stephen J. Simko, Jr. affirmed serious training, emergency-communication, and general-duty violations, finding that a physical barricade was feasible and necessary. He vacated the danger-sign allegation because that standard limits where signs may be used but does not itself require posting, and he vacated an inadequately proved safety-program item. Including an uncontested fall item, penalties totaled $10,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.50(e); 29 C.F.R. § 1926.200(b)(1); 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.20(b)(1).
• Outcome: Training, emergency communication, general-duty barricade, and uncontested fall items affirmed for $10,500 total; danger-sign and safety-program allegations vacated.
• Key point: General warnings are inadequate at a changing worksite beside silent moving trains; employers must provide site-specific instruction, emergency communication, and feasible physical controls against accidental entry.

Full text (OSHRC public release)

Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 98-1492
:
White Electrical Construction :
Company, :
Respondent. :

Appearances:

      Leslie John Rodriguez, Esquire                        Charles H. Morgan, Esquire
          Office of the Solicitor                           Kevin M. Ingham, Esquire
          U. S. Department of Labor                            Alston & Bird, L.L.P.
                   Atlanta, Georgia                                     Atlanta, Georgia
               For Complainant                                      For Respondent

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                       DECISION AND ORDER

      White Electrical Construction Company (White) is engaged in electrical construction

contracting. The Occupational Safety and Health Administration (OSHA) conducted an
inspection and investigation of respondent’s jobsite in Jacksonville, Florida, from March 16,
1998, through June 22, 1998. As a result of this inspection, respondent was issued two
citations. Respondent filed a timely notice contesting the citations and proposed penalties. A
hearing was held in Jacksonville, Florida, on February 4 and 5, 1999. At the hearing,
respondent withdrew its notice of contest relating to Citation No. 1, item 4, and the proposed
penalty of $1,750. The violation of 29 C.F.R. § 1926.501(b)(1) alleged in that item and the
proposed penalty of $1,750 are affirmed. The violations alleged in Citation No. 1, items 1, 2
and 3, and Citation No. 2, item 1, as well as the penalties proposed for these items, remain at
issue.
For the reasons that follow, Citation No. 1, item 1, is affirmed and a penalty of $3,500 is
assessed; Citation No. 1, item 2, is affirmed and a penalty of $1,750 is assessed; Citation No. 1,
item 3 -- the alleged violation of 29 C.F.R. § 1926.200(b)(1) is vacated; the violation of §
5(a)(1) of the Act is affirmed and a penalty of $3,500 is assessed; and Citation No. 2, item 1, is
vacated.
 Background

   In 1998, White was hired to complete certain electrical work on the Jacksonville

Automated Skyway Express (ASE), which is owned by the Jacksonville Transportation
Authority (JTA). Although much of the electrical work on the ASE had been completed by
electrical contractors other than respondent, White was hired by the general contractor,
Bombardier, to complete a "punch list" of items yet to be completed. Respondent’s work began
on March 9, 1998.
The ASE is a public transportation system consisting of trains running on a single guide
beam elevated approximately 24 feet above the ground. The remotely operated electric trains
run quietly and cannot be easily heard, given surrounding traffic and background noise. The
system consists of two lines, the Starter Line and the South Line. During the period March 9,
1998, through March 16, 1998, the Starter Line, or main line, was operational. Trains
providing customer service regularly ran on this line. The South Line was not operational and
still in the construction process. Respondent performed its work on the South Line. The South
Line connected to the main, or Starter Line, through a switch called the "Y-Junction." The Y-
Junction includes a "turnout beam" that can be activated to veer the trains from the Starter Line
to the South Line, or vice-versa, when the system is in full operation. During the period March
9, 1998, through March 16, 1998, this turnout beam was locked and deactivated since the South
Line was still under construction.
During the period March 9, 1998, through March 16, 1998, journeymen and apprentice
electricians hired by White from the union hall worked on the ASE electrical and
communication systems. These employees had no experience on the ASE. Tasks included
field modifications, making repairs and corrections pursuant to a punch list, and performing
various other tasks pursuant to verbal instructions from White’s job foreman, James LeClare.
On March 16, 1998, several employees of White were working at the end of the inactive
South Line near the Y-Junction. One employee, Daniel Schley, noticed another electrician,
Grady Austin, in the area of the Y-Junction immediately adjacent to the active Starter Line.
Schley yelled, without success, to warn Austin of the oncoming train. Austin was struck and
killed by the quiet and rapidly moving train.
 Discussion

   The Secretary has the burden of proving the violation:
   In order to establish a violation of an occupational safety or health standard, the
   Secretary has the burden of proving: (1) the applicability of the cited standard,
   (b) the employer’s noncompliance with the standard’s terms, (c) employee
   access to the violative conditions, and (d) the employer’s actual or constructive
   knowledge of the violation (i.e., the employer either knew or, with the exercise
   of reasonable diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

                                Citation No. 1, Item 1
                Alleged Serious Violation of 29 C.F.R. § 1926.21(b)(2)

   The Secretary in Citation No. 1, item 1, alleges that:
   The employer did not instruct each employee in the recognition and avoidance
   of unsafe condition(s) and the regulation(s) applicable to his work environment
   to control or eliminate any hazard(s) or other exposure to illness or injury:

           On or about March 16, 1998, employees were not instructed in
           the recognition and avoidance of unsafe conditions, and the
           procedures needed to ensure that the trains have been shut down
           or deactivated prior to any work being done on tracks and
           equipment on the Jacksonville Automated Skyway express,
           including the starter line.

   Section 1926.21(b)(2) 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.

   Respondent’s employees were provided the employee handbook and jobsite rules which

contain White’s safety policies and procedures. Some received these when they started work
during the week beginning on March 9, 1998. One employee received these on another job six
months before the start of this job. The safety policies and procedures related to electrical
hazards, excavations, fire protection, first aid, material handling and tools, welding and cutting,
ladders and scaffolds, and hazard communication (Exhs. R-1, R-2, R-10 & R-11).
Respondent’s safety program, used as a management tool, contained more detailed information,
but addressed the same hazards, policies and procedures. This program was not given to these
employees on this site. Nothing in the handbook, jobsite rules, or safety program addresses the
recognition or avoidance of unsafe conditions on this or any jobsite where there are the unique
hazards created by moving trains.
Employee testimony at the hearing is conflicting concerning the degree of instruction
given onsite by White’s supervisor, Jimmy LeClare, relating to the recognition and avoidance
of unsafe conditions. These employees were onsite approximately one week. The daily and
weekly meetings were primarily job-related discussions, and not safety instructional sessions.
Only general verbal safety warnings were given. While employees generally knew not to work
near the active track, they were never trained on how to avoid unsafe working conditions
unique to construction work on the elevated rail line immediately adjacent to an active rail line.
Mr. LeClare, White’s foreman, worked on this jobsite for Comstock Electrical as an
electrician and foreman from August 1996 until January 1998. White hired LeClare as its
foreman to complete change orders relating to work performed by its predecessor. While
working with Comstock, Mr. LeClare worked in all areas of the Automated Skyway Express
jobsite, including the Starter Line and South Line. He received training in procedures for
coordination of work and movement of trains during the testing and commissioning of the rail
transit system. He was, therefore, extremely familiar with the dynamics of this unusual and
ever-changing worksite.
The standard requires, in part, that instructions be given to each employee in the
recognition and avoidance of unsafe conditions. An employer has a continuing duty to instruct
employees as work conditions change. Mr. LeClare told employees to be careful and not to
go beyond the Y-Junction, the pivot point where the concrete barrier meets the metal section of
the railway. These general verbal instructions are insufficient to adequately inform employees
of the unique hazards on this site, and how to avoid specific unsafe conditions that arise when
the main line is operational and when certain systems are tested.
White’s foreman continued to give the same general instructions during tool box
meetings even when he knew the work varied day-to-day. During this one-week period, a
general contractor representative observed Mr. Schley and Mr. Austin, two White employees,
on the elevated track about 100 feet from the Y-Junction. He warned them the section was
"hot" or electrified and told them to get down. He and the two employees subsequently told
Mr. LeClare of the incident. White’s foreman, however, gave his employees no additional
instructions on recognizing or avoiding this or similar hazards. At the hearing, Mr. LeClare
admitted that after that incident on Thursday, March 12, 1998, he had no discussions with these
employees about the line beyond which they should not work.
Mr. LeClare testified that on March 16, 1998, two employees of the respondent were
working 15 or 20 feet from the Y-Junction which joined the South Line under construction and
the Starter Line where trains were in operation. He admitted there were no barricades, lookout
employees, warning tapes, or danger signs to warn employees of the proximity of operating
trains or restrict their entry into the immediate area of the active track. He further testified that
White did not instruct employees on the operating rules of the JTA as to the movement of trains
on the active track or regarding JTA’s restrictions to access to the Y-Junction. He further stated
that trains passed the Y-Junction more than three times in any nine-hour period, and White did
not establish a system for on-track safety by providing its employees information about time
intervals for trains running on the active track, including the area of the Y-Junction.
The Review Commission has consistently held that instructions must address matters
specific to the worksite about which a reasonably prudent employer would have instructed its
employees. CMC Electric, Inv., 18 BNA OSHC 1737 at 1738, 1999 CCH OSHD ¶ 31,817,
p. 46,743 (No. 96-169, 1999); Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2016,
1991-93 CCH OSHD ¶ 29,902, p. 40,810-11 (No. 90-2668, 1992). Respondent’s verbal
instructions were little more than general safety admonitions and insufficient to address the
specific hazards on this unique jobsite. White had a continuing duty to reinstruct employees as
changing conditions required. This reinstruction is not the equivalent of "enforcement of
policy" discussed and rejected by the Review Commission in Dravo Engineers and
Constructors, 11 BNA OSHC 2010, 1984-85 CCH OSHD ¶ 26,930 (No. 81-748, 1984). The
term "instruction" must be read to include and require reinstruction as needed to give it
substantive meaning. An employer subject to this standard may not give employees
instructions at the beginning of the job and then abdicate its duty to change its instructions or
reinstruct as changes in the working conditions occur. To merely restate prior general safety
instructions in an ever-changing work environment is an abdication of an employer’s
responsibility under this standard. Effective reinstruction is also required when, as in this case,
it is evident that employees do not understand either the nature of the hazard or the means to
avoid it.
 By requiring reinstruction, as needed, the standard is not rendered meaningless. An
employer is, thus, not relieved of its obligation to instruct by making a general statement to
employees about jobsite hazards and then relying on employee discretion and judgment to
recognize and avoid specific and often subtle hazards. See Superior Custom Cabinet Co., 18
BNA OSHC 1019, 1021 (No. 94-200, 1997), aff’d, 18 BNA OSHC 1513 (5th Cir. 1998).
The standard at 29 C.F.R. § 1926.21(b)(2) clearly applies. Through the actions of its
foreman, Mr. LeClare, White failed to adequately and effectively instruct its employees in the
recognition and avoidance of unsafe conditions at this jobsite. It knowingly allowed its
employees to work in the vicinity of an active track without adequate instruction. As a result of
respondent’s failure to properly instruct, its employees had access to hazardous working
conditions which could result in death or serious physical harm. On March 16, 1998, one
employee was, in fact, struck and killed by a train on the Starter Line in the area of the Y-
Junction.
The evidence clearly establishes that respondent violated 29 C.F.R. § 1926.21(b)(2).
This violation was serious in that there is a substantial probability that death or serious physical
harm could result from this condition.
 Citation No. 1, Item 2
Alleged Serious Violation of 29 C.F.R. § 1926.50(e)

     The Secretary in Citation No. 1, item 2, alleges that:
     Proper equipment for prompt transportation of injured person(s) to a physician
     or hospital or a communication system for contacting necessary ambulance
     service, was not provided:

            On or about March 16, 1998, jobsite, at the Y Junction, at Bay
            and Broad Streets, employees were not provided with a
            communication device for contacting emergency services or the
            Jacksonville Automated Skyway Express control center in the
            event of an emergency.

     Section 1926.50(e) provides:

     (e) Proper equipment for prompt transportation of the injured person to a
     physician or hospital, or a communication system for contacting necessary
     ambulance service, shall be provided.

     It is clear that the standard is applicable. This is a construction site. Employees were

working on a remote elevated rail line. It is undisputed that respondent provided no equipment
for prompt transportation of an injured person to a physician or hospital. Employees working
near the Y-Junction were several thousand feet from the San Marcos station which served as
respondent’s work staging area.
James LeClare, White’s foreman, admitted at the hearing that on March 16, 1998,
respondent did not provide employees working near the Y-Junction any radio or other method
of communication so they could contact him at the San Marcos station. Respondent argues that
employees had access to a telephone which was, in fact, used in response to the accident at the
Y-Junction on March 16, 1998. This phone was a cellular phone that belonged to the injured
employee. There is no evidence that prior to the incident, respondent gave this phone to the
employee or even knew the employee had his own cell phone. White is not relieved of its
responsibilities under this standard by arguing after-the-fact that the employee had his own
phone.
 Respondent also argues that these employees were not exposed to a hazard arising out
of the cited condition. This standard presumes that emergency conditions may arise on
construction sites. It allows employers to provide a means of prompt transportation or a means
of communication. Since employees worked in a remote inaccessible location, respondent
could not choose the transportation option. It failed to provide the alternative, a communication
device. An emergency condition arose on March 16, 1998, when one of respondent’s
employees was struck by a moving train. Employees were clearly exposed to emergency
conditions. Respondent failed to provide a prompt means of transportation or a communication
device for these employees. White knew these employees were working in this remote area
without such means of transportation or communication. Without these, death or serious
physical harm could result from the delay in obtaining medical assistance in an emergency.
Respondent violated 29 C.F.R. § 1926.50(e). This violation is serious.

                                 Citation No. 1, Item 3
               Alleged Serious Violation of 29 C.F.R. § 1926.200(b)(1)
                      or, In the Alternative, § 5(a)(1) of the Act

   The Secretary in Citation No. 1, item 3, alleges that:
   29 CFR 1926.200(b)(1): Danger signs were not used where an immediate
   hazard existed:

           On or about March 16, 1998, between the Jefferson station and
           the Central station, at the Y Junction, there were no signs
           between the south line and the starter line, where barricades had
           been erected prior to March 5, 1998, which would have instructed
           employees of the dangers of entering the active train lines.

OR IN THE ALTERNATIVE

   Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The
   employer did not furnish employment and a place of employment which were
   free from recognized hazards that were causing or likely to cause death or
   serious physical harm to employees in that employees were exposed to being
   struck by a moving train:



   On or about March 16, 1998, between the Jefferson station and the Central
   station, at the Y Junction, there were no barricades between the south line and

the starter line, which would have prevented employees from being exposed to
moving trains.

   Among other methods, one feasible and acceptable abatement method to correct
   this hazard would be to install barricades between the south line which was
   undergoing construction, and the starter line which had trains running on it.

   Section 1926.200(b)(1) provides: "(b) Danger signs. (1) Danger signs (see Figure G-

1) shall be used only where an immediate hazard exists."
The standard at 29 C.F.R. § 1926.200(b)(1) does not require the use of danger signs in
any given situation, but limits the use of such signs to conditions only where an immediate
hazard exists. This standard must be read within the context of 29 C.F.R. § 1926.200.
Subsection (b)(1) relates to the use of danger signs. Subsection (c)(1) relates to the use of
caution signs. Subsection (c)(1) provides: "(c) Caution signs. (1) Caution signs (see Figure
G-1) shall be used only to warn against potential hazards or to caution against unsafe practices."
These standards cannot be interpreted to require red "danger" signs wherever immediate
hazards exist and yellow "caution" signs wherever potential hazards exist, or to always be used
to caution against all unsafe practices on a jobsite. To do so would lead to an unintended result.
Signs would proliferate and lose their desired effectiveness due to overuse. The indiscriminate
use of such warning signs would lead to employees ignoring all warning signs resulting in an
overall decrease in jobsite safety.
A standard should be construed to give effect to the natural and plain meaning of its
words. Diamond Roofing v. OSHRC, 528 F.2d 645 (5th Cir. 1976).
In that case, the Fifth Circuit further stated:
If a violation of a regulation subjects private parties to criminal or civil
sanctions, a regulation cannot be construed to mean what an agency intended but
did not adequately express. Brennan v. Occupational Safety and Health Review
Commission, 5 Cir., 1973, supra; Meehan v. Macy, 1968 129 U.S. App. D.C.
217, 392 F.2d 822; 4 Davis, Administrative Law Treatise § 30.12. Cf. Cole v.
Young, 1956, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (ambiguity in
Executive Order is fault of government and is resolved against it). We recognize
that OSHA was enacted by Congress for the purpose stated by the respondents.
Nonetheless, the Secretary as enforcer of the Act has the responsibility to state
with ascertainable certainty what is meant by the standards he has promulgated.

   This standard is not applicable where, as here, no sign was posted. The standard’s clear

terms cannot be interpreted as a requirement to post a danger sign to warn employees of
dangers in the area. Having determined that the standard does not apply, there is no need to
discuss the other elements of the Secretary’s burden. The alleged violation of 29 C.F.R. §
1926.200(b)(1) is vacated.
In the alternative to an alleged violation of 29 C.F.R. § 1926.200(b)(1), in Citation No.
1, item 3, the Secretary alleged that respondent violated § 5(a)(1) of the Act by failing to install
barricades between the South Line and the Starter Line to prevent employees from being
exposed to moving trains. To establish a violation of § 5(a)(1), the Secretary must show that:
(1) a condition or activity in the employer’s workplace presented a hazard to employees; (2) the
cited employer or the employer’s industry recognized the hazard; (3) the hazard was likely to
cause death or serious physical harm; and (4) feasible means existed to eliminate or materially
reduce the hazard. Waldon Health Care Center, 16 BNA OSHC 1052, 1993 CCH OSHD ¶
30,021, p. 41,151 (Nos. 89-2804 & 89-3097, 1993) (consolidated).
Work in the proximity to quiet rapidly moving trains presented a clear hazard to
respondent’s employees. Respondent’s foreman, Mr. LeClare, testified that he recognized this
condition as an obvious hazard. He gave employees general instructions about not going
beyond the pivot point or Y-Junction of the main line and the South Line, but he allowed
employees to work 15 to 20 feet from that point. Mr. LeClare worked on this jobsite for White
for one month and its predecessor, Comstock, for eighteen months before the fatal incident on
March 16, 1998. He was familiar with the operation of the elevated trains, worked as an
electrician and foreman throughout this jobsite, and received training on the general
contractor’s procedures for work and coordination of train movement during testing and
commissioning (T and C) of the transit system. On previous occasions, he saw barricades
erected by the general contractor on the South Line. While the barricades were in place, Mr.
LeClare and his crew were working on both sides of the barricades performing electrical
installation on the South Line and work on the Starter Line under T and C control. During his
testimony, Mr. LeClare could not recall when the barricades were taken down, but he
understood that the reason for their removal was that the general contractor was moving its
recovery vehicle.
The location and nature of the work changed daily during the period March 9, 1998,
through March 16, 1998. Employees moved up and down a 3,000- to 4,000-foot section of the
South Line from the San Marcos Station to the Y-Junction. Employees worked on this job for
approximately one week as close as 15 to 20 feet from the Y-Junction with only general safety
instructions. Respondent stipulated at hearing there were no barricades, warning tapes, signs or
other means to alert employees. Such means and devices would have alerted these individuals
that they were approaching a very dangerous area of silently moving trains only a few feet from
their work. Respondent argued that there were definite boundaries of track where employees
were allowed to work. The area was not marked or blocked off in any manner. When
employees are engaged in their skilled electrical work, their attention must be focused on the
work at hand. Often employees are not fully aware of their immediate surroundings or the fact
that they have inadvertently wandered into a hazardous area. Respondent’s definite boundaries
were mental fences or barriers. These might serve to reduce the probability of intentional entry
into the hazardous area of the Y-Junction, but they do nothing to prevent accidental entry. See
Tobacco River Lumber Company, 3 BNA OSHC 1059 at 1064, 1974-75 CCH OSHD ¶ 19,565
at p. 23,357 (No. 1694, 1975). A physical limitation is needed at this location to prevent
intentional, inadvertent or accidental entry into the area of silent moving trains. It is essential
for an employer to take all actions necessary to protect its workers from reasonably foreseeable
hazards. Here a barricade would have been a feasible method to prevent employees from
entering this obviously hazardous area of the worksite. Barricades were previously used on this
site to restrict entry by workers into the dangerous location. Respondent offered no evidence to
even suggest erection of barricades would not be feasible. Certainly, the erection of a barricade
in this area is technologically and economically capable of being done. See National Realty &
Construction Co. v. OSHRC, 489 F.2d 1257 at 1268 (D.C. Cir. 1973). The Secretary has
shown that barricades would have eliminated or materially reduced the hazard of being struck
by moving trains. The hazard is serious. Respondent’s employees had access to the hazard and
could die or be seriously injured if struck by a moving train. A White employee died on March
16, 1998, when struck by one of these trains at the Y-Junction.
I find that respondent violated § 5(a)(1) of the Act by failing to assure barricades were
in place to protect its employees from the hazard of being struck by moving trains. This was a
serious hazard that was likely to cause death or serious physical harm. It was actually
recognized by respondent. Barricades were a feasible means to eliminate or materially reduce
the hazard.
 Citation No. 2, Item 1
Alleged "Other" Violation of 29 C.F.R. § 1926.20(b)(1)

   The Secretary in Citation No. 2, item 1, alleges that:
   A safety and health program was not initiated and maintained to provide
   compliance with the general safety and health provisions of the standard:

           a. At the worksite, a safety and health program had not been
           initiated and maintained which addressed the following basic
           elements:

   1. Program Reviewed Annually.

           a. Adequate commitment of resources.
           b. Safety rules and procedures incorporated into site operations.

   2. Assignment of Responsibility

           a. Employees adherence to safety rules.

   3. Identification and Control of Hazards.

           a. Action taken to address hazards.

   4. First Aid and Medical Assistance

           a. Emergency procedures and training, where necessary.

   Section 1926.20(b)(1) provides:

   (b) Accident prevention responsibilities. (1) It shall be the responsibility of the
   employer to initiate and maintain such programs as may be necessary to comply
   with this part.

   Complainant alleged in Citation No. 2, item 1, that respondent’s safety and health

program did not address four specific basic elements: annual program review, assignment of
responsibility, identification and control of hazards, and first aid and medical assistance.
At the hearing, however, Mr. Wilk, the OSHA compliance officer, gave only general
nonspecific testimony as to alleged deficiencies of respondent’s safety program. He stated
conclusions that the safety program did not address the work environment or types of resources;
that the tool box meetings discussed work to be done, along with some safety discussions; and
that there was not much enforcement of the safety program. No specific factual testimony was
produced by the Secretary to support these broad conclusions or to address the specific
deficiencies. Mere allegations in a citation are totally insufficient to establish deficiencies in
respondent’s program. A review of White’s safety program indicates a general approach to
safety. I cannot conclude, however, that respondent violated 29 C.F.R. § 1926.20(b)(1) based
on this review and the evidentiary record as it relates to this item. Citation No. 2, item 1, is
vacated.

                                         Penalties

   Under § 17(j) of the Act, in determining the appropriate penalty, the Commission must

give due consideration to the size of the employer’s business, the gravity of the violation, the
good faith of the employer, and the history of previous violations.
Respondent employs approximately 200 employees, but had only 8 workers on this site.
The violations found in Citation No. 1 were of high severity which could result in death or
serious physical harm. I find that respondent did not exhibit good faith when all elements of
the three violations are considered, that is, general safety instructions, no means of
communication on a remote site, and no barricades to prevent entry into a hazardous area. No
evidence was presented by the Secretary relating to a history of prior violations. Upon due
consideration of these factors, a penalty of $3,500 is appropriate for item 1 of Citation No. 1; a
penalty of $1,750 is appropriate for item 2 of Citation No. 1; and a penalty of $3,500 is
appropriate for item 3 of Citation No. 1.

                               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 ORDERED:
   1. Citation No. 1, item 1, is affirmed as a serious violation and a penalty of $3,500 is

assessed.
 2. Citation No. 1, item 2, is affirmed as a serious violation and a penalty of $1,750 is
assessed.
3. Citation No. 1, item 3: The alleged violation of 29 C.F.R. § 1926.200(b)(1) is
vacated. The violation of § 5(a)(1) of the Act is affirmed as a serious violation and a penalty of
$3,500 is assessed.
4. Citation No. 1, item 4, is affirmed as a serious violation and a penalty of $1,750 is
assessed.
5. Citation No. 2, item 1, is vacated.

                                                 STEPHEN J. SIMKO, JR.
                                                 Judge