Peterson Construction Co.

Plain-English summary

A carpenter loosened a sheet of second-floor plywood decking to remove column formwork, leaving an opening and an unstable walking surface 21 feet above the lower level. When he stepped on the loose sheet, it lifted and he fell through the opening onto reinforcing steel, causing serious injuries. The judge found that supervisors knew the decking had been loosened but did not require it to be secured or provide fall protection. The employee-misconduct defense failed because Peterson did not prove specific rules addressing unsecured decking, effective communication, or actual enforcement. The judge affirmed the walking-surface item and amended the second item from the unprotected-edge standard to the more directly applicable floor-hole standard. Penalties of $4,000 and $1,000 were assessed, reducing the proposed total from $11,200 to $5,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(a)(2); originally 29 C.F.R. § 1926.501(b)(1), amended to 29 C.F.R. § 1926.501(b)(4)
• Outcome: Both serious items were affirmed as amended, with penalties totaling $5,000.
• Key point: A loose sheet left as part of a walking surface can violate structural-integrity requirements, while an interior opening is governed by the floor-hole provision rather than the unprotected-edge provision.

Full text (OSHRC public release)

                                     United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW 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. 954275
PETERSON CONSTRUCTION CO.
Respondent.

                         NOTICE OF DOCKETING
                  OF ADMINISTRATIVE LAW JUDGE’S DECISION

 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on September 12, 1996. The decision of the Judge
will become a final order of the Commission on October 15, 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 DISCRETION “?-..RY
REVIEW.
Any such petition should be received b the Executive Secretary on or before
October 2, 1996 in order to ermit sufl?icient time for its review. See
Commission Rule 91, 29 C.8 .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. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: September 12, 1996
DOCKET NO. 95-1275
NOTICE IS GIVEN TO THE FOLLOWING:

Benjamin T. Chinni
Associate Regional Solicitor, USDOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Robert J. Honigford, Esq.
Gei er & Honigford
211 %forth Elizabeth
Lima, OH 45801

Ken S. Welsch
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00122088628 : 05
 United States of America
OCCUPATIONAL SAFETY AND HEXLTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119

Phone: (404) 347-4 197 Fax: (404) 347-0113

SECRETARY OF LABOR,
Complainant,
.
.
v. .. OSHRC Docket No. 95-1275
.

PETERSON CONSTRUCTION COMPANY,
Respondent.

APPEARANCES:

         Heather Joys, Esquire                                        Robert J. Honigford, Esquire
            U. S. Department of Labor                                    Geiger & Honigford
            Office of the Solicitor                                      Lima, Ohio
            Cleveland, Ohio                                                  For Respondent
                For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                        DECISION AND ORDER

         On June 15, 1995, Peterson Construction Company (Peterson), a general contractor, was

constructing a waste water treatment plant in Fremont, Ohio, when an employee fell 21 feet and was
seriously injured. The Occupational Safety and Health Administration (OSHA) conducted an
accident investigation. As a result of the investigation, OSHA issued a serious citation to Peterson
on July 13, 1995. OSHA alleges that Peterson violated the fall protection standards at 29 C.F.R.
#1926.501(a)(2) and 1926.501(b)(l). OSHA proposed penalties of $5,600 for each violation.
Peterson timely contested the violations and proposed penalties (Tr. 5). Peterson admits that it is
an employer engaged in a business affecting commerce within the meaning of §3(5) of the
Occupational Safety and Health Act (Act) (Tr. 4-5).

                                       The Accident

   Construction on the waste water treatment plant started in September 1994. Peterson was

responsible for, among other things, all carpentry work necessary for the construction of concrete
decking and columns (Tr. 12, 130). Peterson employed approximately twenty-three employees to
do the carpentry work (Tr. 129). By June 1995, the foundation, the concrete floor, and the columns
supporting the second floor were completed (Tr. 49,149). The plywood decking for the second floor
was erected in preparation of the concrete pour (Tr. 22-23). The steel framework supporting the
second floor decking consisted of stringers or steel “I” beams which were spaced 4 to 5 feet apart
and ran the length of the floor, and “SpanAlls” joists which were spaced 2 feet apart and ran f?om
stringer to stringer (Exhs. C-l, R-3; Tr. 22,13 1-32). The second floor decking consisting of 3/4-&h
plywood was secured to the SpanAlls by drilling holes in the decking and tying the plywood to the
Span-Alls (Tr. 120).
On June 15, 1995, Gary Greene and Greg Mullins, carpenters, were assigned by their
foreman, Ned Bartley, to strip the formwork from columns C-l and C-3 and to construct wooden
boxes to extend the height of the columns. The formwork used to form the columns on the first
floor was approximately 16 inches short of the second floor, requiring additional formwork to be
built on top of the columns (Tr. 12, 14,23, 155).
Work started at 7 a.m. (Tr. 162). Greene, working on the second floor, unsecured a piece
of 2- by 8-foot plywood decking adjacent to column C-l. Rebar used in the column was protruding
through the second floor (Exh. R-l ; Tr. 21022,170). Greene moved the piece of decking back from
the rebar (column C-l), leaving an opening of approximately 12 to 14 inches (Tr. 2 1, 12 1, 167). At
the same time, Mullins, working from a scaffold erected below the second floor, unbolted the
formwork around column C-l. After the formwork was unbolted, Greene pulled it up through the
opening he had created at column C-l. He stacked the formwork for later use on the second floor
(Tr. 22).
 Next, Greene sawed the wooden pieces for the box at a location approximately 10 to 15 feet
from column C-l (Tr. 23, 16 1). After cutting the pieces, Greene proceeded back to column C-l to
hand them to Mullins, who was tied offon the scaffold beneath the second floor (Tr. 94). Greene
was not tied off (Tr. 15). As Greene reached the area where he had pulled the piece of decking away
from column C-l, his feet apparently landed on the edge of the loose decking (Tr. 13). According
to Bartley, the foreman, who was working 15 feet north of Greene, it appeared that the piece of
loose decking came up sliding Greene through the opening (Tr. 153,169). The opening was at least
12 to 14 inches by 2 feet’. Greene fell 21 feet to the lower level onto two 20,inch rebar which
partially penetrated his back. The rebar was cut off at the site, and Greene was taken to the hospital
for treatment. It was lo:30 a.m. Greene described his injuries as puncture wounds caused by the
rebar, six broken ribs, broken back bones, and a collapsed lung (Exh. C-3; Tr. 16). Greene has not
returned to work and is receiving workers’ compensation (Tr.11).
Based on an anonymous telephone call, OSHA Compliance Officer Gattis initiated an
investigation of the accident (Exh. C-2). He arrived at the worksite approximately two hours after
the accident (Tr. 52). He was told by Peterson’s project officer and safety director that the worksite
had not been changed (Tr. 52). However, Gatis’ understanding that three sheets of plywood decking
were loosened by Greene was in error (Exh. R-2; Tr. 53). The testimony of Bartley and Alan
Stechschulte, superintendent, shows that the additional plywood decking was removed after the
accident. Torches on the second floor were used to cut off the rebar so Greene could be moved (Tr.
138,145, 161, 167). Therefore, the court finds that prior to the accident only one piece of plywood
decking was loosened and moved approximately 12 to 14 inches from column C-l.

    1

     The measurement of the opening is based on the size of plywood decking in the area of column C-l, as

described by Bartley who was at the site immediately after the accident (Tr. 167, 170; see also Exh. C-l).

                                                 3

Discussion

   Peterson disputes the alleged violations of the OSHA safety standards. In order to establish

a violation of a safety standard, the Secretary must show by a preponderance of the evidence that
(1) the cited standard applies to the alleged condition; (2) the terms of the standard were not’
complied with; (3) employees were exposed to or had access to the violative condition; and (4) the
employer knew or could have known of the violative condition with the exercise of reasonable
diligence. Seibel Modern Manufacturing & Welding, Corp., 15 BNA OSHC 12 18, 1221-22,
1991-93 CCH OSHD 7 29,442, pa 39,678 (No. 88-821, 1991).

                     Item 1 - Alleged Violation of 6 1926.501 (a)(2)

   Peterson was cited for a violation of $1926.501 (a)(2) which requires that:
          The employer shall determine if the walking/working surfaces on
          which its employees are to work have the strength and structural
          integrity to support employees safely. Employees shall be allowed to
          work on those stiaces only when the surfaces have the requisite
          strength and structural integrity.

   The citation issued to Peterson alleges that:

           On or about June 15, 1995, an employee and his co-worker were
           exposed to injury by their employer while they had worked on the
           second floor of the building under construction, adjacent to a
           unprotected floor edge on a working surface of l/4” plywood decking
           that his employer had not determined had the strength and structural
           integrity to safely support the employee and his co-worker while they
           were working on it.

   The standard imposes an obligation on employers to inspect and make a determination as to

the strength and structural integrity of the walking/working surfaces in the workplace. The record
establishes without dispute that the second floor decking at column C-l was a working/walking
surface; employees including Greene were working on the second floor decking; and Peterson knew
or should have known that a piece of plywood decking was loosened and unsecured.
A walking/working surface is defined at $1926.500(b) as any surface on which employees

walk or work including floors and formwork. By leaving the unsecured piece of plywood decking
on the floor at column C-l, it remained part of the walking/working surface. It was Bartley, the
foreman, who instructed Greene and Mullins to strip the column forms and build the box over
column C-1 (Tr. 150, 174). To complete the job, Bartley knew or should have known that a piece
of decking at column C-l was loosened and unsecured (Tr. 155). While Greene and Mullins were
performing their job, Bartley was working 15 feet away on the second floor. He was aware the
piece of decking remained as part of the deck surface (Tr. 27,102,153,161).
Further, Alan Stechschulte, Peterson’s superintendent, agreed that Greene had to pull back
the decking approximately a foot from around the column in order to pull the formwork (Tr. 121).
Stechschulte was working approximately 75 feet from Greene at the time of the accident. He
testified that prior to the accident, he also was in the area where Greene and Mullins were working
and was aware of their job. He had directed Bartley to have Greene and Mullins strip the column
and build the boxes (Tr. 127-128). Therefore, Peterson’s knowledge of the condition and employee
exposure are established.
The issue in dispute is whether the plywood decking had the “requisite strength and structural
integrity” as required by the standard (Resp’s. Written Closing Argument, pgs. 2-3). Peterson argues
that the plywood used for the decking was 314inch thick and not l/4 inch as alleged in the citation.
Compliance Officer Gattis testified he based the 1/4-&h finding in the citation on what he was told
by Jim Deam, Peterson’s safety director who accompanied him during the inspection (Tr. 62).
However, the Secretary does not now dispute that the plywood was 3/4 inch thick. The alleged
violation of 5 1926.50 1(a)(2) was not based on the thickness of the plywood but on the lack of
stability of the plywood after it .was unsecured. Therefore, the citation is amended ma sponte to .
show the plywood thickness as 314 inch. Peterson is not prejudiced by this amendment.
Gafiis agrees that 3/4-inch plywood decking was strong enough to support employees as long
as it was secured (Tr. 66). However, the piece of plywood decking which was moved back to strip
formwork from the column was not secured. The piece of decking merely laid on the Span-Alls

                                             5

without being otherwise secured. The Span-Alls were spaced 2 feet apart. By not ensuring that the
piece of decking was secured, its structural integrity was not maintained. It was no longer suitable
as a walking/working surface. It could easily move, slide, lift up, or otherwise become unstable.
Structural integrity requires that the walking/working surface remain unimpaired and sound. By
failing to have the piece of decking refastened while continuing to work, its structural integrity was
diminished.
Peterson violated the standard when it failed to ensure that the decking upon which Greene
was walking/working at the time of the accident had the structural integrity to support him. Peterson
allowed him to work on an unstable surface. The piece of decking was not secured. It was
incapable of supporting Greene’s weight and tipped up when he stood on it (Tr. 13,59). Peterson
presented no evidence that it took measures to determine whether the piece of decking on which
Greene was working was stable and secure (Tr. 155,166). Greene was not instructed to secure the
decking or take measures to ensure he was not working on an unstable surface. Bartley was aware
at all times what Greene and Mullins were doing (Tr. 155). He was working 15 feet from Greene
at the time of the accident (Tr. 153). Bartley gave no specific instruction on how to do the job (Tr.
161,171-72, 174).
Accordingly, a violation of $1926.50 1(a)(2) is established.

                      Item 2 - Alleged Violation of 41926.501(b)(l)

   Section 1926.501@( 1) provides:

           Unprotected sides and edges. Each employee on a walking/working
           surface (horizontal and vertical surface) with an unprotected side or
           edge which is 6 feet (1.8 m) or more above a lower level shall be
           protected from falling by the use of guardrail systems, safety net
           systems, or personal fall arrest systems.

   OSHA’s citation alleges that:

           On or about June 15, 1995 the employer did not protect his
       l




           employees working adjacent to a floor edge on the second floor, f?om
           a fall of 21’ to the first floor level of the building under construction.

The Secretary alleges that Peterson violated the standard when it allowed Greene to work
near the exposed edge at column C-l without any fall protection system in place. The record
establishes that at the time of the accident Greene was not tied off or otherwise protected by a
personal fall arrest system. According to Bartley, the foreman, he did not require Greene to have
fall protection while doing this job. The opening at column C-l when the piece of decking was
moved back was 12 to 14 inches wide by 2 feet long. The opening was not protected by a guardrail
system or safety net system (Tr. 14-15,57-58).
The issue disputed by Peterson is whether the opening created an unprotected edge as
contemplated by the standard (Resp’s. Closing Argument, pg. 5). Peterson notes that there were
guardrails at all floor sides or edges on the second floor. The floor opening in dispute was at an
interior column, column C-l. The opening was caused when the plywood decking was moved away
from the column. Peterson does not dispute that there was no fall arrest system, guardrail, safety net,
or fall protection at the opening at column C-l.
“Unprotected sides and edges” are defined at $ 1926.500(b) as “any side or edge (except at
entrances to points of access) of a walking-working surface, e.g., floor, roof, ramp, or runway where
there is no wall or guardrail system at least 39 inches (1.0 m) high.” The Secretary argues that
moving the piece of decking created a floor edge. However, the court finds that the opening is more
appropriately considered a floor hole. A hole is defined at $ 1926.500(b) as “a gap or void 2 inches
(5. lcm) or more in its least dimension, in a floor, roof, or other walking-working surface.” The
opening at issue was at an interior column and not at the edge or side of the second floor decking.
The opening was “in” the second floor. Therefore, as a floor hole, the standard at 5 1926.501(b)(4)
is applicable. Section 1926.50 1(b)(4) requires: .
Each employee on walking-working surfaces should be protected from falling
through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by
personal fall arrest system, covers, or guardrail system erected around such holes.

   The court, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, amends ma sponte

the citation to allege a violation of 8 1926.501 (b)(4). Peterson is not prejudiced by this amendment.

                                               7

Sections 1926.501 (b)( 1) and 1926*501(b)(4) are related standards. The two standards address the
same hazard and require the same forms of fall protection to protect employees. There is no
substantive differences in the wording of the two standards. The opening through which Greene fell
was the issue tried. The Review Commission has permitted such amendments ma sponte by-the
court. See Morrison-Km&on Co./Yonhzrs Contract, 16 BNA OSHC 1105, 1993 CCH OSHD
7 30,484 (No. 88-572, 1993), and A. L. Bamgarten Construction, Inc., 1994 CCH OSHD 7 30,554,
p. 42,272 (No. 92-1022, 1994). Peterson was well aware throughout the proceedings that the
Secretary was alleging the lack of fall protection at the area where Greene fell at column C-l. The
amendment by the court merely substitutes a standard that more directly applies to the cited
condition, a floor hole.
As discussed, the record establishes that the hole at column C-l was 12 to 14 inches wide
by 2 feet long. The employee working in the area was not protected from a fall in any way, and
Peterson knew or should have known of the unprotected hole.
Accordingly, a violation of $ 1926.50 1(b)(4) is established.

                               Emplovee Misconduct Defense

    If a violation of    a standard is found, Peterson appears to argue that it was due to

unpreventable employee misconduct (Resp’s. Written Closing Argument, pg. 6). Peterson ftiled
to properly plead employee misconduct as a defense. However, the Secretary does not oppose
raising the defense at this stage of the proceedings. The Secretary’s recognition that the defense may
have been tried is shown by his brief on the issue (Secretary’s Posthearing Brief, pgs. 11-13).
Pursuant to Rule 15(b), Federal Rules of Civil Procedure, the Commission has recognized that an
unpled issue may be tried with the express or implied consent of the parties. Therefore, the court
amends the pleadings to show that Peterson alleges an employee misconduct defense.
To prove employee misconduct, Peterson must show that (1) it has established work rules
designed to prevent the violation; (2) it has adequately communicated the rules to its employees; (3)
it has taken steps to discover violations; and (4) it has effectively enforced the rules when violations
have been discovered. Nooter Construction Co., 16 BNA OSHC 1572,1578, 1994 CCH OSHD
7 30,345 p. 41,841 (No. 91-0237, 1994); Mosser Construction Co., 15 BNA OSHC 1408, 1414,
1991 CCH OSHD T[29,546, p. 39,905 (No 89-1027, 1991).
An essential element of the defense is a showing that the employer has established a work
rule designed to prevent the violation. Pride Oil Well Serv., 15 BNA OSHC 1809, 1810, 1991-93
CCH OSHD 7 29,807, p. 40,585 (No. 87-692, 1992). Other than Gattis’ testimony that Peterson’s
safety program and employee training in fall protection was adequate, there was no evidence of
specific safety rules. A copy of Peterson’s safety program and rules applicable to its worksite were
not made part of the record. Further, even if its fall protection program were adequate, there was no
evidence regarding any safety rules on securing plywood decking. The argument that Peterson had
a work rule that employees tie off is not a defense to a citation alleging failure to maintain the
structural integrity of the decking. Power Plant Div., Brown & Root, Inc., 10 BNA OSHC 1837,
1840,1982 CCH OSHD 7 26,159 (No. 77-2553,1982). Also, with regard to fall protection, Bartley
testified he did not require Greene to wear fall protection while constructing the box over column
C-1 (Tr. 172, 174). Therefore, Peterson cannot assert that Greene violated its fall protection safety
rule. Further, the record fails to establish that the safety rules were communicated to Greene.
Greene testified that he had worked a “few times” on this job without being tied off and was not
disciplined (Tr. 15).
Adequate enforcement is also a critical element of the employee misconduct defense. An
employer may show a progressive disciplinary plan consisting of increasingly harsh measures taken
against employees who violate the work rule. See Asplundh Tree Expert Company, 7 BNA OSHC
2074,198O CCH OSHD 7 24,147 (No. 16162,1979). However, to prove that its disciplinary system
is more than a “paper” program, an employer must show evidence of having actually administered
the discipline outlined in its policy and procedures. E.G. Connecticut Light & Pwr. Company,
13 BNA OSHC 2214, 1987-90 CCH OSHD 7 28,508 (No. 85-1118, 1989) (evidence of verbal
reprimands alone suggest an ineffective disciplinary system); Pace Cons@. Corp., 14 BNA OSHC
2216, 1991-93 CCH OSHD 7 29,333 (No. 86-758, 1991).
The record ftils to establish that Peterson has an effective enforcement program. Other than
describing its reprimand procedure consisting of verbal warnings, written warnings, and days off
(Tr. 152), there is no evidence as to Peterson’s enforcement. Greene testified he worked a few times

                                              9

on the project without being tied off, and he was not disciplined (Tr. 15-16). On the day of the
accident, no one instructed Greene to tie off or use fall protection (Tr. 16). Also, Stechschulte and
Bartley acknowledged never reprimanding any employees on this job (Tr. 153).
Therefore, without evidence of adequate safety rules that were communicated and enforced,
employee misconduct has not been shown.

                                   Serious Classification

    The violations were cited as serious. A violation is serious under section 17(k) of the Act

if “an accident is possible and there is substantial probability that death or serious physical harm -
could result from the accident.” Consolidated Freight-ways Corp., 15 BNA OSHC 13 17, 1324,
1991-93 CCH OSHD 7 29,500, p. 39,813 (No. 86-351, 1991). The Secretary must show that if an
accident occurred, exposure to the hazards addressed by the standards are likely to cause death or
serious injury.
The unsecured piece of decking created an unstable work surface. Greene fell 21 feet and
suffered serious injuries when the decking lifted up. Therefore, a serious violation of
$1926.501(a)(2) is established. Also, when the piece of decking was pulled back from column C-l,
an unprotected floor hole was opened. Stepping into such a hole without fall protection could cause
serious injury or death. Thus, a serious violation of 5 1926.501 (b)(4) is established.

                                   Penaltv Determination

    The Commission is the final arbiter of penalties in all contested cases. Under $17(j) of the

Act, in determinin g an appropriate penalty, the Commission is required to consider the size of the
employer’s business, history of previous violations, the employer’s good faith, and the gravity of the
violation. The gravity of the violation is the principal factor to be considered.
Peterson employs approximately 150 employees and was given 20 percent credit for size by
OSHA (Tr. 54). There were twenty-three employees at the worksite. Peterson was not given credit
for history and good faith because of receiving previous serious citations and due to the high gravity
of the violations cited (Exh. C-4; Tr. 54-56). The court concludes that size and history were properly
considered. However, 10 percent credit is appropriate for good faith based on the compliance

                                              10

officer’s findings that Peterson’s safety program was adequate and employees received fall
protection training and equipment. Gattis did not find any deficiencies in Peterson’s written fall
protection program (Tr. 104). Also, Peterson was cooperative during OSHA’s accident investigation
(Tr. 62’78, 82, 104).
The gravity of walking/working on an unsecured deck is high. One employee was working
on the unsecured piece of decking 21 feet above the lower level. By leaving the piece of decking
unsecured and as part of the flooring, there was a false sense of stability. However, it is found that
only one employee (Greene) was exposed to the hazard. Mullins, as alleged in the citation, was not
shown to be exposed. Therefore, the court assesses a penalty of $4,000 for violation of
$1926.501(a)(2).
With regard to the unguarded floor hole, the court finds the gravity to be moderate because
the probability of an employee falling through the floor hole was low. The employee was exposed
for less than 45 minutes. Further, the employee was the one who unsecured the piece of decking
from the column. He should have been aware of the unprotected hole. It was visible and next to
protruding rebar. The real hazard was not the unprotected floor hole but the unsecured piece of
decking. Therefore, the court assesses a penalty of $1,000 for violation of 5 1926.501 (b)(4).

                                   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:
        1. Citation No. 1, item 1, alleging a serious violation of $1926.50 1(a)(2), is affirmed and a
penalty of $4,000 is assessed.




                                                  11

2. Citation No. 1, item 2, alleging a serious violation of 5 1926.501(b)(4), is affirmed and a
penalty of $1,000 assessed.

                                          Judge

Date: September 3, 1996