Jalco, Inc., and its successors

Plain-English summary

Jalco is a utility contractor that was installing a 42-inch water line in Edinburg, Texas. OSHA inspected the trench work and issued three excavation citations: the trench box did not extend 18 inches above the vertical trench wall, the trench floor was dug too far below the bottom of the box, and workers crossed an unprotected gap between two trench boxes. Jalco largely admitted the conditions but disputed how serious each was. The judge agreed all three standards were violated but found OSHA's compliance officer overstated the danger, in part because his own conduct on site did not match his testimony about an 80% cave-in risk. As a result the judge downgraded each item: the first to de minimis with no penalty, the second from serious to other-than-serious with no penalty, and the third from a repeat to an ordinary serious violation because OSHA did not prove the earlier 1998 citation involved substantially similar conditions. A $1,000 penalty was assessed on the third item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(b)(2), 29 C.F.R. § 1926.652(g)(2), 29 C.F.R. § 1926.652(a)(1)
• Outcome: All three violations affirmed but reclassified downward; item 1 to de minimis (no penalty), item 2 to other-than-serious (no penalty), item 3 from repeat to serious with a $1,000 penalty.
• Key point: To sustain a "repeat" classification in the Fifth Circuit the Secretary must show the prior violation involved substantially similar conditions and hazards, not merely the same standard.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 99-2294
JALCO, INC., and its successors,
Respondent.

APPEARANCES:

      For the Complainant:
              Danielle L. Jaberg, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas,

Texas

      For the Respondent:
              R. Michael Moore, Esq., Fulbright & Jaworski, L.L.P., Houston, Texas

Before: Administrative Law Judge: James H. Barkley

                                     DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Jalco, Inc., and its successors (Jalco), at all times relevant to this action maintained
a place of business at the intersection of Monmack & Monte Christo, Edinburg, Texas, where it was
installing a 42" water line. Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On October 20, 1999 the Occupational Safety and Health Administration (OSHA) conducted
an inspection of Jalco’s Edinburg work site. As a result of that inspection, Jalco was issued citations
alleging violations of the Act together with proposed penalties. By filing a timely notice of contest
Jalco brought this proceeding before the Occupational Safety and Health Review Commission
(Commission).

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    On September 19, 2000, a hearing was held in Corpus Christi, Texas. The parties have

submitted briefs on the issues and this matter is ready for disposition.
Alleged Violation of §1926.652(b)(2)
Serious citation 1, item 1 alleges:
29 CFR 1926.652(b)(2): Excavation with support or shield system did not extend at least 18 inches
above the top of the vertical side:

    At the jobsite, near the southwest corner of the intersection formed by Monte Christi Road and
    Monmack Street, Edinburg, TX. Employees worked in a 10 foot high x 20 foot long trench
    shield whose top edge was 24 inches below ground level. The employees were exposed to
    being struck by spalling from the vertical walls above the trench shield.

Facts
Antonio Fuentes, OSHA’s Compliance Officer (CO), testified that he conducted the inspection
of Jalco’s Edinburg work site on October 20, 1999 (Tr. 8). Fuentes testified that he initially observed
the arm of a tractor-excavator cutting a trench through a roadbed; he saw dump trucks being loaded
and driven off the job site (Tr. 9, 34, 77). The open trench was approximately 70 to 80 feet long, and
had vertical sides (Tr. 10, 102). There were trench boxes in place, and Jalco employees Antonio
Alvarez and Martine Garza were working within the trench boxes (Tr. 11, 23). Fuentes testified that
the first trench box was improperly placed, in that it was placed in the trench on an angle. Fuentes
measured the distance between the top of the low side of the trench box and ground level; the top of
the trench box was 24 inches below the road surface (Tr. 18, 21, 33; Exh. C-13, R-1C).
Wayde Wendell, Jalco’s project safety engineer (Tr. 23, 158-59) was aware of the cited
condition (Tr. 167). Wendell testified, however, that he did not believe that any trench protection was
required in this area (Tr. 177). Wendell stated that, in his capacity as the “competent person” on site,
he was responsible for conducting daily inspections of the trench (Tr. 160). Wendell testified that on
October 20, 1999 he performed a “thumb test” on the soil in the bottom of the trench (Tr. 162, 173).
At a location approximately 15 feet in front of the 18” water main, three feet from the bottom of the
trench, he found the soil to be Type A (Tr. 162, 175, 178). Wendell stated that he did not realize that
previously excavated soil was always Type B, and did not re-test soils that might have been previously
disturbed (Tr. 163). Wendell acknowledged that Jalco prepared a site safety plan for this job, and that
the site plan indicated the soil type in the area was Type B (Tr. 161; Exh. C-15). Wendell argued that
the testing utilized for the preparation of the site plan was done approximately four miles back on the

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eight mile waterline project, and was not representative of the soil encountered on October 20, 1999
(Tr. 173-74).
Fuentes testified that the spoil piles from the trench consisted of a loose dry silty loam; there
were no clumps of soil larger than his fist (Tr. 12, 31, 100). Though Fuentes did not detect any cracks
or fissures in the soil, or note any sloughing or crumbling of the trench wall (Tr. 12, 76, 85), he noted
that the soil in the area had been previously disturbed both to lay a road, and to install a pre-existing
water main, which ran at a 90Ε angle across the trench (Tr. 12, 34, 84; Exh. C-13, C-14).
Fuentes testified that, based on his observation of the soil, evidence that the soil had been
previously disturbed, and the presence of heavy equipment on the work site, he believed that the soil in
the trench was Type B (Tr. 12, 33). Fuentes asked Wade Wendell, Jalco’s project safety engineer (Tr.
23, 158-59), to collect a soil sample for him; he did not know where Wendell collected the sample (Tr.
13, 81). Wendell testified that he did not collect the sample himself; believed the sample came from a
spoil pile but could not say from what portion of the trench those spoils came (Tr. 165-66). Fuentes
sealed the soil sample and sent it to OSHA’s Salt Lake City lab (Tr. 13-14).
David Armitage analyzed the soil sample from the Jalco inspection (Tr. 117). Armitage
testified that he was unable to ascertain the compressive strength of the sample, as it crumbled when he
attempted to take a penetrometer reading (Tr. 157). Based on the soil’s plasticity and sieve test results,
however, Armitage was able to conclude that the sample consisted of Type B soil (Tr. 117-48).
Discussion
The cited standard provides:
Design of sloping and benching systems. The slopes and configurations of sloping and
benching systems shall be selected and constructed by the employer or his designee and shall
be in accordance with the requirements of . . .Option (2) Determination of slopes and
configurations using Appendices A and B. Maximum allowable slopes, and allowable
configurations for sloping and benching systems, shall be determined in accordance with the
conditions and requirements set forth in appendices A and B to this subpart.

   Jalco argues that the Secretary’s application of Appendix B is unreasonable where, as here, the

top of the trench box is located at ground level (Tr. 71; Brief for Jalco, Inc., at 6). Because the facts
establish that the top of Jalco’s trench box was positioned 24 inches below ground level on one side, its
argument is inapposite.
It is unnecessary to ascertain the soil type before deciding this item. Appendix B applies to all
excavations 20 feet or less in depth that have vertically sided lower portions, and which are supported

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or shielded. Appendix B requires that the support or shield systems extend at least 18 inches above the
top of the vertical portion. Unsupported trench walls extending above the top of the support or shield
systems must be cut back. The slope must be cut to and measured from 18 inches below the top
of the support system. The angle of repose for the upper slope of the excavation,
measured from 18 inches below the top of the support system to ground level must
equal 3/4:1 for Type A soil, and 1:1 for Type B soil.
All excavations 20 feet or less in depth which have vertically sided lower portions that
are supported or shielded shall have a maximum allowable slope of 3/4:1[1:1 or 1-
1/2:1 for Type A, B and C soils, respectively]. The support or shield system must
extend at least 18 inches above the top of the vertical side.

                          Support or shield system




           20’ Max.                                               18”Min.



                                                         Total height of vertical side

                      SUPPORTED OR SHIELDED VERTICALLY SIDED LOWER PORTION


   Jalco maintains that Appendix B can be applied only to trenches with both a

vertical lower portion and a sloped upper portion. Jalco maintains that because its
entire trench was vertical the standard is inapplicable. Jalco’s position is untenable
in this case, where the vertical side of the trench in question extended 24 inches
above the top of the trench box. This 24” cut constitutes the unsupported upper
portion of the trench. Under the circumstances cited in this case, this judge
cannot find that the Secretary’s application of the cited standard is unreasonable.
Neither the existence of the cited condition, nor employee exposure is
contested. The Secretary has, therefore, established a violation of §1926.652(b)(2).
Classification
The Secretary classified the cited violation as “serious;” a penalty of $900.00
was proposed.
Although CO Fuentes did not detect any cracks or fissures in the soil, or note any
sloughing or crumbling of the trench wall, he testified that soil could fall from the face of the

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excavation above the box, and strike employees in the trench (Tr. 26, 76, 85). The
employees could have suffered facial and/or dental injuries (Tr. 26). Alvarez and
Garza told Fuentes that they had been working in the trench for at least an hour to
an hour and a half (Tr. 26). Fuentes stated the probability of an accident was
“lesser,” that is, it was more likely than not that no accident would occur (Tr. 29-
30). Moreover, soil sloughing from the trench wall above the trench box could have
fallen into the opening between the trench wall and the trench box, rather than into
the trench (Tr. 33). Finally, employees in the trench were wearing hard hats (Exh.
C-1).
Under §17(k) of the Act, a violation is deemed “serious” if, in the event of an accident, the
cited condition would, in all likelihood, result in death or serious physical harm. The hazard in this
case consists of a remote possibility that workers in the trench, all wearing hard hats, could be struck
by spalling from the unguarded portion of the trench above the trench box. The CO himself admitted
that in the unlikely event of spalling, the workers would, at worst, suffer facial cuts and bruises or
chipped teeth. Clearly the cited violation does not meet the criteria for a “serious” classification.
A violation is de minimis when there is technical noncompliance with a standard, but the
departure bears such a negligible relationship to employee safety or health as to render inappropriate
the assessment of a penalty or the entry of an abatement order. Cleveland Consolidated, Inc., 13 BNA
OSHC 1114, 1987-90 CCH OSHD ¶27,829 (No. 84-696, 1987). In the Fifth Circuit, the Court
has held that a de minimis classification may be considered where no, or only minor injury will
result, or where the possibility of injury is remote. Phoenix Roofing, Inc., 874 F.2d 1027 (5th Cir
1989).
Jalco’s was a temporary work site, the work has since been completed and the
trench filled. An abatement order is inappropriate under the circumstances. In
addition, the CO significantly overstated the gravity of the violation in computing
the penalty. As noted, Fuentes did not detect any cracks or fissures in the soil, or note any
sloughing or crumbling of the trench wall. He believed that the possibility of soil falling into the
trench was remote. The chance of employees being injured by sloughing soil while wearing hard hats
is insignificant. This judge finds that the cited violation is appropriately classified as de minimis, and
no penalty assessed.
Alleged Violation of §1926.652(g)(2)

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    Serious citation 1, item 2 alleges:

29 CFR 1926.652(g)(2): Excavations of earth material to a level no greater than 2 feet (.61m) below
the bottom of a shield was + permitted (sic):

         1. At the jobsite, near the southwest corner of the intersection formed by Monte Christo
            Road and Monmack Street, Edinburg, TX. Employees worked inside an 8 foot tall x 32
            foot long trench shield that had been installed 4.4 feet above the trench floor.
            Employees were exposed to hazards associated with cave-ins.

Facts
CO Fuentes testified that he asked Alvarez and Garza to measure the bottom of the trench at the
point where they were working, and found that the trench was between 4.4 and 4.5 feet deeper than the
bottom of the trench box (Tr. 41-42; Exh. C-1, C-13). Wayde Wendell admitted that he knew of the
cited conditions at the time of the inspection (Tr. 168).
Fuentes testified that had the bottom portion of the trench walls collapsed, soil could slough
into the trench from under the trench box, pinning employees to the pipe they were working on (Tr.
46). Pressure from soil pinning the employees to the pipe could result in fractures of the lower
extremities and crushed blood vessels (Tr. 46). Fuentes testified that the likelihood of a cave-in is
much greater at 14 feet than at the surface, and that the likelihood of an accident was “greater,” in that
it was more likely than not that an accident would occur (Tr. 46-47, 50).
As noted above, Wayde Wendell testified that he performed a “thumb test” on the soil in the
bottom of the trench October 20, 1999 (Tr. 162, 173). At a location approximately 15 feet in front of
the 18” water main, three feet from the bottom of the trench, he found the soil to be Type A (Tr. 162,
175, 178).
Fuentes classified the soil in the bottom of the trench as Type B, based solely on the presence
of heavy equipment in the area earlier, before the trench was extended beyond the 18” water main (Tr.
92-97). Fuentes testified that the vibrations from the truck loosened the soil before the trench was
excavated (Tr. 97). Fuentes admitted, however, that he did not see any physical signs: fissuring,
splinter lines, or sloughage, which showed that vibrations from the truck traffic had affected the soil in
the area (Tr. 99). Fuentes testified that the 42" water line Jalco was installing was new, and that the
lower portions of the trench wall may very well have consisted of undisturbed soil (Tr. 89). According
to Fuentes, the trench walls below the trench box appeared smooth and dry, and he did not see any soil
sloughing into the trench (Tr. 80). Fuentes admitted that no injuries were reported on the Jalco work

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site, and that two employees were exposed for approximately an hour to an hour and a half without a
cave-in occurring (Tr. 48, 50).
Finally, this judge notes that although Fuentes testified that he believed Alvarez and Garza
were exposed to a serious hazard, and that in his opinion a cave-in was more likely to occur than not,
he did not mention this to the employees in the trench. Instead he asked the employees to read the
measurements on his leveling rod so that he might determine the size of the gap below the trench box
(Tr. 80).
Discussion
The cited standard provides:
Excavations of earth material to a level not greater than 2 feet (.61 m) below the bottom of a
shield shall be permitted, but only if the shield is designed to resist the forces calculated for the
full depth of the trench, and there are no indications while the trench is open of a possible loss
of soil from behind or below the bottom of the shield.

The evidence establishes, and Jalco admits that it failed to comply with the cited standard (Brief for
Jalco, Inc., p. 6). Jalco argues, however, that the Secretary overstated the gravity of the cited
condition. Jalco argues that the Secretary failed to establish that the cited conditions created a
substantial probability of death or serious physical harm, maintaining that the possibility of an injury
accident occurring was remote.
This judge agrees that the probability of an accident resulting from the cited violation was
overstated. This judge finds that the CO’s testimony was not credible in regard to the probability of a
cave-in occurring. Though the Secretary established that parts of the trench consisted of previously
disturbed Type B soil, she did not establish that the soil in the bottom of the trench was Type B. As
noted in the statement of facts under item 1, CO Fuentes admitted that the soil in the bottom of the
trench could have consisted of undisturbed soil, and that he did not know which part of the trench the
Type B soil in the spoil pile came from. Wayde Wendell’s manual test on the day of the inspection
established that the soil in the bottom of the trench was Type A. This judge is not convinced that the
vibrations from heavy equipment working on the road nearby affected the integrity of the soil at the
bottom of the trench walls. There were no physical signs that a cave-in was imminent; there was no
sloughing; the trench walls appeared smooth and dry though the trench had been open for an hour and
a half. During the inspection Fuentes did not act as though he was concerned about the possibility of a
cave-in.

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    It is well settled, however, that the substantial probability of death or serious physical harm

required by the Act does not refer to the probability that an accident will, in fact, result, but only that if
the accident were to occur, there would be a substantial probability that death or serious physical harm
would result. Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 1987-90 CCH OSHD ¶28,501
(No. 87-1238, 1989). Under Commission precedent, the implausibility of the CO’s cave-in scenario is
insufficient, in itself, to reduce the classification of the cited violation.
Nonetheless, because Fuentes’ testimony regarding the severity of the possible injuries was not
credible, this judge believes that the violation was erroneously classified as “serious.”
It is undisputed that a trench box was in use in the trench, though the trench was two to two and
a half feet too deep for the box. The standard allows the trench to be excavated two feet below the
bottom of the shield. It presumes that the two foot gap creates no hazard to employees in the trench.
Though the gap beneath the trench box in this case was two to two and a half feet deeper than that
allowed by the standard, constituting a technical violation, it is clear that the amount of soil that could
slough from behind and below the shield and flow into the trench would be insufficient to cause the
serious injuries, i.e., leg fractures, that CO Fuentes testified to.
The record contains no credible evidence of the type of injuries that might be sustained as a
result of the cited violation. Because the Secretary failed to prove, by a preponderance of the evidence,
that the cited condition could result in serious physical harm, the violation is re-classified as “other
than serious.” No penalty will be assessed.
Alleged Violation of §1926.652(a)(1)
Repeat citation 2, item 1 alleges:
29 CFR 1926.652(a)(1): Each employee in an excavation was not protected from cave-ins by an
adequate protective system designed in accordance with 29 CFR 1926.652(c). The employer had not
complied with the provisions of 29 CFR 1926.652(b)(1)(i) in that the excavation was sloped at an
angle steeper than one and one-half horizontal to one vertical (34 degrees measured from the
horizontal):

    At the jobsite, near the southwest corner of the intersection formed by Monte Christo Road and
    Monmack Street, Edinburg, TX. Employees installing a 42-inch treated water line traveled
    across an unprotected gap of 9.4 feet, 13 feet deep between two trench shields. The unprotected
    area had vertical walls. Employees were exposed to hazards associated with cave-ins.

JALCO, Inc., was previously cited for a violation of this Occupational Safety and Health Standard or
its equivalent Standard which was contained in OSHA Inspection #302097787 Citation #01, Item

002, issued on 08/11/98.

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Facts
Fuentes testified that there was a gap between two trench shields of
approximately 9.4 feet (Tr. 53; C-1, C-5). An 18” water main running across the
trench prevented Jalco from placing the trench boxes next to each other (Tr. 54;
Exh. C-1, C-2, C-4). Wayde Wendell testified that he was aware of the cited
conditions (Tr. 169). He deliberately placed the trench boxes on either side of the
water main, as he did not want to chance damaging the pipe and flooding the
excavation (169-70). Wendell believed that the unguarded portion of the trench
consisted of Type A soil, as noted above, he did not realize that previously excavated soil is
always classified as Type B (Tr. 163). Wendell had not planned on any men working in
the gap (Tr. 169-70). Both he and Fuentes, however, observed Alvarez and Garza
walking through the unprotected area to work and to collect their tools (Tr. 53, 59,
83).
Fuentes stated that the employees could have been completely entrapped in
the event of a cave-in (Tr. 57). Fuentes admitted that the employee exposure to the
violative condition was short, a few seconds at a time, totaling two or three minutes
(Tr. 63, 83). Nonetheless, he believed it was “very likely” that a cave-in would
eventually occur because the soil in that area had been previously disturbed where
the water main was installed (Tr. 57, 102). Specifically, Fuentes stated that the
chance of a cave-in was 80% (Tr. 64). A cave-in would likely result in serious
internal damage up to and including death (Tr. 58).
Discussion
Jalco admits that it was in violation of the cited standard (Brief for Jalco, Inc.,
p. 7). Jalco maintains, however, that the Secretary failed to show that the violation
was a “repeated.” Jalco maintains that the violation should have been classified as
de minimis, because, except for the soil immediately above and surrounding the
crossing water line, the soil in the trench was Type A.
Classification
Repeat. A violation is repeated under section 17(a) of the Act if, at the time of the alleged
repeated violation, there was a final order against the same employer for a substantially similar
violation. Potlatch Corporation, 7 BNA OSHC 1061, 1979 CCH OSHD ¶23,294 (16183, 1979). The

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Fifth Circuit, in which this case arises, has held that the Secretary has the burden of demonstrating the
substantial similarity of the conditions and hazards associated with the violations, even where, as here,
the prior and present citations are for failure to comply with the same standard. Bunge Corp. v.
Secretary of Labor (Bunge), 638 F.2d 831 (5th Cir.1981).
CO Fuentes testified that Jalco was cited for another violation of
§1926.652(a)(1) in 1998 (Tr. 60; Exh. C-7). The 1998 citation charged Jalco with
allowing employees to work in an excavation which was sloped at an angle steeper
than 1-1/2:1, and did not have an otherwise adequate protective system (Exh. C-7).
Fuentes testified that both citations involved a cave-in hazard (Tr. 60-61).
First, this judge notes that the Secretary, though arguing that the 1998 and 2000 citations are
substantially similar, failed to introduce any evidence, other than the bare citation, showing that the
conditions on the prior Jalco work site were similar to those cited here, as required under Bunge.
Without such evidence, this judge is unable to determine whether the occurrence of the second
violation demonstrates a need for greater than normal incentives to comply with the Act. See, Monitor
Construction Co., 16 BNA OSHC 1589, 1994 CCH OSHD ¶30,338 (No. 91-1807, 1994). Nothing in
the earlier citation suggests that Jalco used trench boxes in its excavations in 1998. The placement of
trench boxes in the Edinburg excavation would not only change the nature of the cave-in hazard, it
would constitute evidence of Jalco’s attempts to take steps to avoid similar occurrences.
This judge finds that, on this record, the Secretary has not shown, by a preponderance of the
evidence, that the 1998 and 2000 violations were substantially similar.
Serious. The violation is, however, “serious,” in that, if an accident were to occur, there would
be a substantial probability that death or serious physical harm would result. See, Whiting-Turner
Contracting Co., supra. It is clear that were an employee to walk through the unguarded portion of the
trench when a cave-in occurred, he could be buried, suffer internal injuries, and/or suffocate. The
probability of such an accident occurring is, however, relevant to the determination of an appropriate
penalty.
Penalty
In determining an appropriate penalty this judge must give due consideration to the size of the
employer, the gravity of the violation and the employer's good faith and history of previous violations.
The gravity of the offense is the principle factor to be considered. Nacirema Operating Co., 1 BNA
OSHC 1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972). The gravity of the violation is determined

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based on (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3)
the precautions taken against injury, if any; and (4) the degree of probability of occurrence of injury.
Kus-Tum Builders, Inc., 10 BNA OSHC 1049, 1981 CCH OSHD ¶25,738 (No. 76-2644, 1981).
Jalco is a medium sized employer, with more than 26 but less than 200 employees (Tr. 36, 51).
Fuentes testified that the Secretary did not give Jalco any credit for good faith because of the high-
gravity of the violation (Tr. 36-39, 51). Fuentes further testified that the Secretary erroneously failed
to provide Jalco with a 10% credit for prior history (Tr. 39, 51).
No work was going on in the cited portions of the excavation. Two employees were exposed to
the cited hazard for several seconds at a time, two or three minutes total, as they passed from one
trench box to the next, through the unguarded portion of the trench. The probability of an accident
occurring was lessened by Jalco’s use of trench boxes on either side of the area in question. However,
this judge notes that a cave-in hazard, as defined by the cited standard, remained. As is clearly set
forth in the standards, to minimize the danger of a cave-in, Type A soil must either be supported, or
sloped back at a 3/4:1 grade; unsupported Type B soil, like that around the preexisting waterline, must
be sloped back to a 1:1 angle of repose.
Nonetheless, the CO’s testimony that the gravity of the violation was high is not credible. Two
employees were exposed for only two or three minutes. Fuentes admitted that the unguarded sides of
the trench showed no signs of impending collapse. Though he testified at the hearing that there was an
80% chance of cave-in at the work site, Fuentes did not inform employees who walked thorough the
gap between the trench boxes that they did so at their peril. Given Fuentes’ behavior at the work site,
this judge cannot credit his testimony that he perceived a significant cave-in hazard.
Furthermore the CO unreasonably denied Jalco credit for good faith. Jalco took significant
safety precautions on the site; employees worked in the trench with the benefit of trench shields.
Finally, the Secretary admits that Jalco should have been given credit for prior history.
Taking into account the relevant factors, this judge finds that a penalty of $1,000.00 is deemed
appropriate for this item.
ORDER

1. Serious citation 1, item 1, alleging violation of §1926.652(b)(2) is AFFIRMED as a de minimis
   violation of the Act.
2. Serious citation 1, item 2, alleging violation of §1926.652(g)(2) is AFFIRMED as an “other
   than serious” violation of the Act, without penalty.

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   3. Repeat citation 2, item 1, alleging violation of §1926.652(1)(1) is AFFIRMED as a “serious”
      violation of the Act, and a penalty of $1,000.00 is ASSESSED.

                                           _________/s/_________
                                           James H. Barkley
                                           Judge, OSHRC
      

Dated: December 14, 2000

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