Keating Building Corporation

Plain-English summary

Keating was the general contractor for a hotel and parking-garage expansion where part of the garage collapsed during a concrete pour, killing four employees and injuring twenty-one. OSHA cited Keating under the cast-in-place concrete formwork standard and proposed a $7,000 penalty. Although the judge accepted that the concrete slabs supporting shores and reshores could fall within the standard's definition of formwork, she found that OSHA did not prove Keating knew or should have known the slabs were distressed by deficient steel reinforcement. The judge credited Keating's superintendent over a subcontractor foreman who claimed to have reported cracks, and found that Keating reasonably relied on an independent inspection firm and city inspectors to check the reinforcement. The citation and proposed penalty were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.703(a)(1)
• Outcome: The serious citation and proposed $7,000 penalty were vacated.
• Key point: A general contractor was not charged with constructive knowledge of hidden reinforcement deficiencies after arranging independent and city inspections and receiving no warning that visible cracks indicated structural distress.

Full text (OSHRC public release)

             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR,

              Complainant,

                     v.                               OSHR C Docket No. 04-0774

KEATING BUILDING CORPORATION.

               Respondent.

APPEARANCES:

Suzanne Demitrio, Esq. F. Warren Jacoby, Esq.
William G. Stanton, Esq. Joshua Wall, Esq.
U.S. Department of Labor Cozen O’Connor
New Y ork, NY 10014 Philadelphia, PA 19103-2921
For the D epartment of Labor For the E mployer

BEFORE: Covette Rooney
Administrative Law Judge

                             DECISION AND ORDER

Background and P rocedural History 1

   1
     In its Post-Hearing Brief, Keating sought to append several documents that were not

introduced at the hearing. The Secretary has moved to strike these exhibits. Two of these
documents (Exhibits 4 and 5) are e-mail messages which should have been introduced at the
hearing are not part of the record and, under Commission Rule 90(a), 29 C.F.R. §2200.90(a),
cannot be considered. Accordingly, these two documents are rejected. The other document is the
Joint Pre-Hearing Statement from a companion case to this matter, Fabi Construction, Inc., No.
04-0776. This document is part of the official file in a case currently before the Commission and
I take judicial notice of it.
This case is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §
§ 651-678 (“the Act”), to review (1) a citation issued by the Secretary of Labor (“the
Secretary”) and (2) a proposed assessment of penalty therefor.
During the Fall of 2001, Respondent Keating Building Corporation (“Keating”) was
the manager/general contractor on a large construction project involving the expansion of the
Tropicana Hotel and Casino in Atlantic City, New Jersey (“the Project”). The Project
consisted of a 20-floor hotel tower, ten levels of parking, and several levels of retail and
entertainment establishments below the parking garage (Tr. Tr. 33, 52). The parking garage
was built in levels designated P1 through P10 (Tr. 33). Keating contracted Fabi Construction,
Inc. to provide the labor, materials, and equipment for performing the concrete construction
work. Fabi was also responsible for all decisions regarding shoring at the site (Tr. 62-63, 461­
462, 618-619).
Keating retained Site Blauvelt Engineers (“Site Blauvelt”) as an independent agency
to perform on-site testing of the concrete and inspection for the proper placement of the steel
reinforcement prior to the pouring of the concrete (Tr. 57, 579, 657). Before concrete could
be poured at any level, the reinforcing steel had to also be inspected by Atlantic City Building
Inspectors (Tr. 30, 580, 621-623, 643).
On October 30, 2003 the parking garage partially collapsed along Column Line 1
during a concrete pour on the eighth level of the structure (level P8)(Tr. 162-163, 523). As
a result of the collapse, four employees were killed and twenty-one were injured (Tr. 11, Ex.
K-2).
Construction Methods
The project was constructed using a “filigree system” which consists of 2 ¼ inch
thick pre-cast concrete slabs that are erected on shoring (Tr. 34). In filigree construction
(1) the filigree panels are set in place, (2) reinforcing steel is placed on the filigree panels,
and (3) concrete is poured over the reinforcing steel and filigree panels (Tr. 34-36).

                                            2
   Three types of shoring were used. A system manufactured by Peri Company was

primarily used underneath the 30-inch deep by 8-foot wide beams.. Another type of
shoring, manufactured by the Aluma Company, was used underneath eight 10-inch
concrete slabs. A final type of shoring was a scaffold system manufactured by the Waco
Company, and was used on Column Line 1, underneath the 16-inch deep by 3-foot, 10½
inches-wide beams (Tr. 34-35).
Fabi used three levels of shoring in the garage. After a slab was poured, Fabi would
lay out the slab and start to build the columns the first day after the pour. On the second
day, Fabi would finish building the columns. Fabi would install the shoring on the third
day, and set the filigree on the fourth day. Rebar would be installed on the fifth and sixth
day after the pour and on the seventh day, Fabi would pour concrete on the next level (Tr.
35-36).
On the third day after the pour, Fabi would “crack the shores.” This entailed
loosening the shoring under the most recently poured slab to allow the slab to deflect and
assume its own weight. The shores would then be retightened. These shores would remain
in place until there were three levels shoring above that level. At that time, the shoring
would be removed and recycled (Tr. 36-37). Adjustable single post shores, made of
galvanized steel, were also used to replace the removed shores and to serve as reshores
when Fabi wanted to recycle shoring for use on an upper level (Tr. 36-37).

The Collapse and Subsequent OSHA Investigation
As noted, the parking garage suffered a partial collapse on October 30, 2003. The
collapse occurred while concrete was being poured on the eighth level of the structure.
The collapsed area extended from Column Line 1 to Column Line 4, and from Column
Line B.9 to Column Line E.7. Upon learning of the incident, OSHA sent a response team
to the site which included, inter alia, compliance officer Eric Reinhardt and Mohammad
Ayub, a licensed engineer, holding a Masters Degree in Civil Engineering with a major in

                                          3

structural engineering (Tr. 192). The compliance officers questioned employees at the site
and Mr. Ayub inspected the debris of the collapse at the so-called “boneyard.” The
boneyard was an area near the site where the debris from the collapse was shipped and
stored (Tr. 166, 227).
As a result of the ensuing OSHA investigation, Keating was issued one citation
alleging a serious violation of the Occupational Safety and Health Act (“the Act”) for
failure to comply with 29 C.F.R. §1926.703(a)(1)2 on the grounds that “[t]he formwork
which was used to support level P-8 was not maintained so that it would be capable of
supporting the imposed loads without failure, on or about 10/30/03.” A penalty of $7000
was proposed for the alleged violation.

Discussion
A. The Nature of the Alleged Violation
The first matter to be resolved is a definition of the nature of the violation cited by
the Secretary. The Secretary’s explanation of the cited hazard can most charitably be
described as evolutionary, starting from its ancestral form, as contained in the citation,
and reaching its zenith at the hearing, where it appeared in its final form, bearing as much
resemblance to its precursor as modern humans to their knuckle-walking ancestors.
The specific problems the Secretary had with the support system that led to the
citation was set forth in the Secretary’s Inspection Narrative (OSHA-1A) and inspection
Worksheet (OSHA-1B), both of which, as here, are routinely provided to cited employer’s

   2
     The standard provides:

§1926.703 Requirements for cast-in-place concrete.
(a) General requirements for formwork.
(1) Formwork shall be designed, fabricated, erected, supported, braced and maintained so that it
will be capable of supporting without failure all vertical and lateral loads that may reasonably be
anticipated to be applied to the formwork. Formwork which is designed, fabricated, erected,
supported, braced and maintained in conformance with the Appendix to this section will be
deemed to meet the requirements of this paragraph.

                                             4

during discovery. According to OSHA-1A:
Initial information revealed that Fabi Concrete Construction was in the
process of pouring P-8 of the garage between column line 4 and column line
1. It was learned from the investigation that while the pour was occurring
there was one floor of shoring and one floor of re-shore only, which may not
have provided enough support. It was also learned from physical evidence
and interviews that the reinforcing steel in the column floor connection and
the floor to shear wall connection was not developed per ACI 318-95
requirements.

(Ex. K2, p. 19).
The OSHA-1B similarly focused on the adequacy of the shores and reshores:
Employees were exposed to the hazards of a garage collapse, due to the lack
of properly supporting the formwork with reshoring. The required amount of
re-shoring was not in place at the time level P-8 was being poured. The
structural engineer of record for this job, DeSimone Consulting Engineers,
P.L.L.C., required that when supporting formwork, 1 level of shores and 3
levels of re-shores was to be used. . . . In the garage construction a decision
was made to only use 2 levels of reshoring. However, interviews of
employees and observations by OSHA compliance officers and OSHA
engineers from the National Office have revealed that not only was P4 not
re-shored at all, but level P5 had practically no reshores either. . . .

   A pour was being conducted on level P-8 on 10/30/03 and level P-7 was
   shored to support Level P-8. Level P-6 was re-shored to support level P-7
   and to help distribute the weight of the pour on P-8. Level P-5 shoring had
   been taken down which could not help support P-6. Level P-4 was
   completely stripped of re-shoring. The hazard with only having one floor of
   re-shoring is that the floor cannot support the construction loads placed on
   them.

(Exhibit K2, p. 25).
On April 4, 2004, Mohammad Ayub, an engineer in the Office of Engineering
Services, issued the official OSHA report of the collapse. Ayub reported serious
deficiencies in the placement of the rebars and wire mesh that was to reinforce the
concrete slabs. Ayub also found that the presence of cracks in the concrete was indicative

                                          5

that the slabs were in distress. The report observed that subcontractor Fabi failed to re-
shore an adequate number of floors, as required by the project specification, at the time
concrete was being cast on level P8. Given that the cracks were noticed around the exterior
columns, the report concluded that the fewer levels of reshores were highly detrimental to
the integrity of the structure. (Report at p. 2). The report placed responsibility for the
collapse on Fabi, Site Blauvelt Engineers and other sub-contractors. Ayub’s report did not
implicate Keating in the collapse.
As the case moved toward the hearing, however, the Secretary’s theory of the case
began to produce the rumblings of change. During discovery, the Secretary produced the
“Cagely Report.” This report, prepared by Cagely & Associates, analyzed the collapse3 and
noted that there were serious deficiencies in the steel reinforcement. The report also
opined that cracks that developed in the cement should have “raised a red flag.” However,
it blamed these problems on Fabi Construction Co. and several of its subcontractors. As
with the Ayub report, Cagely never implicated Keating in these failures. Regarding the
lack of adequate shoring, however, the report stated that the “physical evidence and the
testimony of some workers seems to indicate that there was only one level of shores and
one level of reshores in the area of the collapse.” (Emphasis added).
On the grounds that the “Cagely Report” did not implicate in the failures that might
have led to the collapse and, therefore, was prejudicial, Keating, on April 14, 2005 a

   3
     At the hearing, the Secretary sought to have James Cagely testify on industry practice in

the cast in place concrete construction industry when faced with cracked concrete. However,
during Voire Dire, it became apparent that for over a decade, Cagely’s experience as an expert
had been in dealing with specific technical design or deficiency issues and not with industry
practice (Tr. 497, 499). In fact, the last time Cagely could remember actually being personally
responsible for contract administration on a project in New Jersey was a job in the early to mid
1980s. Based on Cagely’s lack of any recent actual hands on involvement in an active concrete
project, the undersigned refused to allow James Cagely to testify as to current industry custom
and practice (Tr. 519).

                                             6

Motion in limine and a Daubert motion to strike the report 4 . At the same time, Keating
also filed a Motion for Summary Judgment (“Motion”). In that motion, Keating noted that
the Secretary’s investigative file was silent about any alleged structural distress (Motion at
6). Keating also observed that, in his report, Mr. Ayub stated that in the absence of any
design and construction defects that would lead an employer to suspect that the area of
collapse was structurally distressed, two levels of shoring would suffice to support the load
and would meet OSHA standards (M otion at 5). Keating pointed out that the Secretary
placed fault for causing or failing to detect deficiencies in the steel reinforcement on other
subcontractors (Motion at 6), but that neither the Ayub report nor any other evidence
suggested that Keating knew or should have known of the structural deficiencies (Motion
at 14).
On April 28, just over a month before the hearing, the Secretary, in her response to
the Motion in limine, clearly stated for the first time, that she intended to present evidence
that “the garage was distressed, including evidence that rebar was incorrectly placed or left
off altogether, and evidence that numerous people working on the garage saw cracks
which had formed in a distinctive pattern around the columns.” (Response pp. 2-3) In
addition, on April 29, as part of its Opposition to the Motion for Summary Judgment 5 , the
Secretary submitted an affidavit from James Cagely where Cagely stated, also for the first
time, that Keating knew or should have known about the cracks in the concrete and
contacted the structural engineer of record to determine its severity.
The Secretary’s response to the Motion in limine introduced a new universe of
factual issues which were barely hinted at in the citation or the OSHA A-1 or B-1. In my

      4
    Moreover, since not relevant to Keating, respondent never sought to depose Cagely or

engage in any discovery based on the report.

      5
     Allegations that Keating should have known of the “structural distress” were also

contained in the Secretary’s response to Keating’s Motion for Summary Judgment. (Response at
p. 4, 6-7)

                                            7

Notice of Hearing, Scheduling Order and Special Notices, this Judge required the parties
to provide “a concise statement of those issues of fact which remain to be litigated.” In
footnote 1 of that Order, I clearly stated that “a mere restatement of the general elements to
be proven will be deemed to be insufficient.”
Nonetheless, in the parties’ Joint Prehearing Statement, dated ten days before the
hearing, in the section entitled “Statement of Issues of Fact Which Remain To Be
Litigated,” the Secretary listed, in its entirety:
1. Keating knew, or with reasonable diligence could have known, the
slabs in the parking garage were distressed.
2. Keating knew, or with reasonable diligence could have known, that
only one level of shoring and two levels of reshoring were in place in the
parking garage on October 30, 2003.
3. Keating knew, or with reasonable diligence could have known, that the
shoring in place in the parking garage on October 30, 2003 was not adequate
to support the anticipated load.

   In this Judge’s view, these responses to my Pre-Hearing Order were seriously

deficient. Despite my explicit warning the Secretary did little more than state the factual
issues in terms of the general elements to be proved. Moreover, even though she presented
new factual allegations not mentioned in the citation or OSHA A-1 or B-1, nowhere did
the Secretary mention why the slabs were allegedly in distress or on what basis Keating
knew or should have known of that distress. Also, nowhere did the Secretary tie-in the
distressed state of the slabs with the alleged deficiency in the shoring which still
constituted the gravamen of the violation.
Finally, at the hearing, the Secretary totally abandoned her allegations regarding the
deficiencies in the shoring6 (Tr. 14-17, 177, 233-240) and, though still claiming a violation

   6
     Indeed, in the Joint Pre-Hearing Statement the Secretary stipulated that
    For purposes of this litigation, the Secretary will not dispute that floors P-7, P-6, and P-5
    were full shored and/or reshored immediately before and at the time of the collapse.

(Joint Pre-Hearing Statement, p. 11, Section IV, paragraph 4).

                                               8

of the cited standard, admitted that her theory of the case had been revised (Tr. 608).
Instead, she now alleged only that the slabs were distressed and that Keating knew or
should have known of that distress because it was aware of serious cracks that allegedly
developed in the concrete slabs and that it should have consulted an engineer before
allowing construction to continue (Tr. 176-177). 7
B. Does the Standard Apply to the Alleged Violation as Finally Defined by the
Secretary?
The Secretary attempts to maintain the integrity of the citation by contending that the

   7
     Keating objected vehemently to this change of theories, arguing that to introduce a new

theory for the first time at the hearing denied it due process. (Tr. 174-186) Respondent argued
that it was denied lack of notice, and was prevented from full and fair discovery, formulation of a
defense, and meaningful cross-examination. (Respondent’s Brief at 27). Keating’s arguments
have substantial merit. The fundamental elements of due procedural due process are notice and
an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950); Yellow Freight Syst., Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). These notions of
due process have been incorporated in the Administrative Procedure Act, which states that
“[p]ersons entitled to notice of an agency hearing shall be timely informed of . . . the matters of
fact and law asserted.” 5 U.S.C. §554(b). To satisfy these due process requirements, an
administrative agency must give the party charged a clear statement of the theory on which the
agency will proceed with the case. Yellow Freight Syst., Inc. , 954 F.2d at 357. Moreover, “an
agency may not change theories in midstream without giving respondents reasonable notice of
the change. Id. (quoting Rodale Press, Inc. V. FTC, 407 F.2d 1252, 1256 (D.C. 1968).

These basic principles of due process have been incorporated in the OSH Act. Thus, the Act
requires that a citation “describe with particularity the nature of the violation.. . . .” 29 U.S.C.
§658(a) (emphasis added)..To meet this requirement, the citation “must be drafted with sufficient
particularity to inform the employer of what he did wrong, i.e. to apprise reasonably the employer
of the issues in controversy.” Alden Leeds Inc. v. OSHRC., 298 F.3d 256, 261 (3d Cir.
2000)(quoting Brock v. Dow Chemical, 801 F.2d 926, 930 (7th Cir. 1986)) The Commission has
recognized that citations are frequently inartfully drawn by nonlegal personnel and, therefore, are
not to be as tightly construed as other pleadings, such as a grand jury indictment. Babcock and
Wilcox Co., v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980). Nonetheless, the citation must be
give fair notice to the employer so that it understands the charge being made and has an adequate
opportunity to present a defense. Id.

However, given the ultimate disposition of the case, I do not find it necessary to determine
whether, as a matter of law, the citation should be vacated on due process grounds.

                                              9

slabs themselves were part of the “formwork”within the meaning of the cited standard, and
that the insufficiencies in the steel reinforcement of those slabs, rendered them incapable of
supporting the weight of the slabs being poured on the upper levels in violation of the
standard.
Keating argues that the standard cannot be reasonably interpreted to apply to the
slabs. In its view, “formwork” is the temporary support for the pour-in-place concrete until
such time as the concrete has gained sufficient strength to support itself (Keating Opening
Brief at 54, Keating Reply Brief at 5). It points out that “formwork” is defined at
§1926.700(b)(2) as “the total system of support for freshly placed or partially cured
concrete, including the mold or sheeting (form) that is in contact with the concrete as well
as all supporting members including shores, reshores, hardware, braces and related
hardware.” Keating notes that each of the items listed in the definition are temporary
structures. The slabs, on the other hand, are permanent structures. Moreover, Keating
observes that, at §1926.700(b)(5), slabs are included in the definition of precast concrete 8 .
Since slabs are one of the items that “formwork” is intended to support, it cannot be
reasonably be interpreted to be part of the formwork. (Keating Reply Brief at 5).
The Commission must defer to the Secretary’s interpretation of a standard if that
interpretation is reasonable. Martin v. OSHRC (C.F.&I Steel Corp.), 499 U.S. 144 (1991).
An interpretation is reasonable if it sensibly conforms to the purpose and wording of the
regulation, taking into account whether the Secretary has consistently applied the
interpretation embodied in the citation, the adequacy of notice to the parties9 , and the

   8
   The standard states:

Precast concrete means concrete members (such as walls, panels, slabs, columns, and beams)
which have been formed, cast, and cured prior to final placement in a structure.
9
Notice as to the meaning of the standard should not be confused with whether the
citation gave Keating notice of the nature of the violation. Thus, whether Keating was provided
adequate notice that it was being cited for flaws in the steel reinforcement of the slabs is a
consideration independent from whether the standard can be interpreted as including slabs as

                                            10

quality of the Secretary’s elaboration of pertinent policy considerations. Superior Masonry
Builders, Inc., 20 BNA OSHC 1182, 1184 n.2 (No. 96-1043, 2003).
While I am sympathetic to Keating’s objection to the Secretary’s strained
interpretation of the standard, I cannot conclude that the Secretary’s interpretation is
unreasonable. Keating properly argues that “formwork” is usually thought of as temporary
structures. However, the definition as set forth by the Secretary broadly defines the term as
the “total system of support for freshly placed or partially cured concrete.” While the
definition goes on to list structures that are generally temporary in nature, there is nothing
in the definition to suggest that the list is exclusive or limited to temporary structures.
Moreover, it is not disputed that the purpose of the shores and reshores is to distribute the
weight of the slab being poured onto the slabs below. Unless these slabs are able to absorb
the weight distributed by the shores and reshores, the entire system of support will fail.
Here, the slabs at levels P5-P710 which were shored or reshored were supporting the freshly
poured concrete at level P8. Unless these slabs were capable of supporting the anticipated
loads which they were required to bear, the capacity of the shores and reshores and other
more traditional “formwork” were not relevant. Thus, the slabs, which ultimately had to
bear the weight of the freshly poured concrete on level P8 were part of the overall support
system and the Secretary could reasonably consider them “formwork.” Accordingly, I
conclude that the Secretary’s interpretation reasonably conforms to the purpose and
wording of the standard and that the Commission must defer to that interpretation.

   C. Whether Keating Knew or Should Have Known of the Deficiencies in the Steel

Reinforcement?

“formwork.”
10
In the Joint Pre-Hearing Statement, the Secretary withdrew the original allegation that
there were only two levels of shoring/reshoring. (Joint Pre-Hearing Statement, p. 11, Section IV,
paragraph 4).

                                            11
   At the hearing, through the testimony and report of Mr. Ayub, the Secretary adduced

evidence that missing or improperly placed steel rebars and reinforcing mesh put the slabs
in distress. This is not seriously disputed by Keating. What Keating vehemently disputes,
however, is whether it knew or could have known of these deficiencies and, therefore,
whether it could properly be charged with a violation of the Act.
To establish any violation, the Secretary must establish that the employer knew or,
with the exercise of reasonable diligence, could have known of the violative condition.
American Wrecking Corp. v. Secretary, 351 F.3d 1254, 1261 (DC Cir. 2003). On a multi-
employer worksite, where the general contractor (i.e. Keating) has contractual
responsibility for the site, but may lack the technical expertise to identify any particular
hazard, the issue is whether it could reasonably be expected to prevent or detect and abate
the violation due to its supervisory authority and control over the worksite. Centex-Rooney
Construction Co., 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994).
The Secretary established that cracks developed in the concrete at levels P5-P7 prior
to the concrete pour on level P8. What was not established with any certainty, however,
was whether the cracks along the One Line were a warning that the slabs were not properly
reinforced. Hugh McCarron, who was Fabi Corp’s superintendent at the time of the
accident (Tr. 69), testified that he observed cracks at level P4 or P5 along the One Line
Column which stretched 12 inches in the east-west direction and 48 inches, north to south.
(Tr. 38). McCarron also observed similar cracks all along the One Line at levels P6 and P7.
(Tr. 40) These cracks were visible to anybody walking through the area (Tr. 42). However,
McCarron was not alarmed by these cracks and considered them to be a natural
consequence of the inch to inch and a half deflection in the slabs (Tr. 43-44). Moreover,
McCarron noted that the cracks weren’t changing but rather were constant (Tr. 44).
McCarron, who had his son, brother, and brother-in-law working at the site, testified that he

                                           12

would not have allowed work to continue if he had concerns about the cracks along the One
Line.11
Mr. Ayub testified, not only that the steel reinforcement was deficient, but also that
the cracks were a warning of those deficiencies. Mr. Ayub agreed that cracking is a normal
occurrence in concrete due to shrinkage as the material sets (Tr. 196). Here, however, Ayub
opined that the nature of the cracking constituted a warning that the slabs were in distress
(Tr. 242-243). He stated that, through employee interviews, he learned that the cracks
existed at nearly every column at all levels at the beam column joint on the One Line. Some
of the cracks were as wide as 1/4 inch, and went across the column and ran diagonally up to
the edge of the beam. Moreover, he noted that some employees reported that the cracks
went through the entire depth of the slab. Because the cracks were located at the beam
column joint and ran through the depth of the slabs, he concluded that the slab may already
have begun to rotate. Since the loads must run from the slab to the beam and from the beam
to the column, he concluded that these serious cracks definitively demonstrated that the slab
was in distress (Tr. 244). Nonetheless, Ayub could not conclude that the distressed slabs
were the proximate cause of the collapse (Tr. 205).
I find it unnecessary to decide whether the preponderance of the evidence
established that the slabs at levels P5-P7 were distressed to such a degree that they were
unable to support the anticipated load from the concrete pour on level P8. Assuming
arguendo, that the evidence did establish that the slabs were distressed, the Secretary failed
to demonstrate that Keating knew, or with the exercise of reasonable diligence could have
known of the condition.

      11
     In contrast, McCarron was concerned about cracks that developed near the elevator

along the north/south column line, west of the One Line. These cracks were about half an inch
wide and in some walls that seemed to be supporting the filigree slab. McCarron reported these
cracks to the his superiors. As a result, changes were made to the rebars, and the cracking
diminished. (Tr. 61) This area was not involved in the collapse.

                                             13
    To establish that Keating had at least constructive knowledge of the distressed

condition of the slabs, the Secretary relied on the testimony of John Campano who was a
foreman for Fabi at the Tropicana project. According to Campo, he observed “ominous”
cracks along the inside of the column along the One Line on every floor (Tr. 94-95). He
also testified that the cracks extended down to the filigree tub at every column he observed
(Tr. 95-96). The cracks were in plain view and ranged from 3/16 to 1/4 inch wide (Tr. 98,
137). Campo testified that he told “everybody who would listen...making sure that
everybody knew...Everybody who walked by” about the cracks so that they could not later
deny that they were told (Tr. 99). Also, of critical importance, Campo testified that he
brought the cracks to the attention of Keating Field Superintendent Ken Lang 12 , who
replied that there were cracks all over the building, chuckled and walked away (Tr. 98,
126).
However, on cross-examination, Keating produced a copy of the transcript of the
OSHA interview with Campano, conducted shortly after the collapse. In this interview,
Campano stated that:
I believe that I called Kenny Lyon [sic] one day, but I cannot swear to it. I
wish I could remember exactly, but I thought I told Kenny about the cracks .
And I got the ‘this job has a lot of cracks everywhere around here,’ and I
think that’s the answer I got. But if you ask me to swear on a Bible I
couldn’t.

(Tr. 136, Ex. K-22, p. 109).
Campano’s assertion at the hearing that he told Ken Lang about the cracks was
disputed by Lang who denied that Campano ever told him about the cracks (Tr. 666). He
testified that he never observed cracks along Column Line 1 and that nobody reported the
cracks to him prior to the collapse (Tr. 665-667).

    12
     Among his duties as field superintendent, Lang had to coordinate the efforts of the

various building trades and schedule inspections of the decks prior to the pouring of the concrete.
(Tr. 655)

                                             14
   Lang’s testimony was supported by the testimony of Raymond Apice, the Keating

employee who was responsible for overall field planning and coordination of contractors at
the project. According to Apice, as part of his job, workers come to him with problems and
concerns (Tr. 626). Yet, he specifically denied ever having been told of the cracks by
Campano (Tr. 626) or any other employee (Tr. 620). He further testified that he never
observed any cracks or other signs of distress that caused him concern and had no reason to
know or believe that any of the structural members of the project were under distress at the
time of the collapse (Tr. 620, 628). Had someone brought that matter to his attention, Apice
testified that he would have notified the structural engineer, as he did when he was notified
of the cracks around the elevator (Tr. 621-623, See footnote 11, supra).
The Secretary sought to support Campano’s assertions through the testimony of
Mohammad Ayub. Ayub testified that when he first wrote his report, he believed that
Keating did not know of the distressed condition of the slabs (Tr. 271-272). He changed his
view, however, after learning that Campano told Keating about the cracks (Tr. 272-273).
However, he admitted that he could not remember interviewing Campano after the incident,
but learned of his assertions from third parties and from reading Campano’s interview13 (Tr.
283-284, 416). Ayub couldn’t identify the source of this information with certainty, but
believed he heard about Campano’s assertions from the OSHA compliance officer shortly
before the citation was issued (Tr. 284). He never spoke to Campano directly to satisfy
himself about the veracity of what he was told (Tr. 284), and admitted that there was
nothing in his personal notes to indicate that Campano ever told anyone at Keating about
the cracks (Tr. 408-409). Ayub also agreed that, at the hearing involving Fabi, 14 he testified
that he was unaware that Keating had any knowledge about the cracks (Tr. 415), and that he

   13
     Although the transcription of the interview lists Mr. Ayub as having been present, he

had no recollection of being part of the proceeding. (Tr. 282, Ex. K-22, p.11)
14
The Fabi hearing were conducted from May 17-June 3, 2005.

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first learned about the allegations involving Keating’s knowledge at that hearing (Tr. 416).
Furthermore, he admitted that the only basis for concluding that Campano told Keating
about the cracks was that he was told by someone at OSHA, and by Campano’s interview
statements he read the night before this hearing (Tr. 416). As noted, however, in that
statement Campano explicitly stated that he couldn’t “swear on a Bible” that he told Lang
about the cracks.
Having heard the conflicting testimony of Kenny Lang and John Campano and
observed their demeanor I credit the testimony of Kenny Lang. The certainty in Campano’s
assertion that he told Ken Lang about the cracks is at odds with statements made prior to
the hearing. When pressed on these discrepencies, Campano became defensive and
argumentative and his testimony increasingly equivocal (See e.g. Tr. 117-118, 120, 129­
130, 132-135, 140-141). In contrast, Lang’s demeanor was calm, certain and consistent.
Moreover, I find that neither the testimony of Ayub nor the affidavit of Cagely to support
Campano’s testimony. The timing of both Ayub’s “conversation” and Cagely’s late issued
affidavit (which concluded that Keating should have known of the cracks and contacted the
structural engineer) are highly suspect, especially since both are inconsistent with the
contents of their earlier reports which essentially exonerated Keating. Indeed, by his own
admission, Ayub’s “conversation” came only the night before the hearing, after the
Secretary developed a new theory of the case that depended on Lang having been told of
the cracks. Moreover, Ayub’s inability to recall being present at the interview of Campo
after the collapse, even though his name appears on the transcript, places in question the
reliability of his later “conversation.” (See Footnote 13, supra.)
That, however, does not end the matter. As the general contractor, Keating may still
be liable under the Act if it failed to adequately exercise its supervisory authority and
control over the worksite. Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (No. 92­
0851, 1994); Blount International Ltd., 15 BNA OSHC 1897, 1899 (No. 89-1394, 1992).
Thus, even if it was not aware of the distressed condition of the slabs, it may still be liable

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under the Act if it just sat back and assumed that Fabi and the other subcontractors were
operating in a safe manner.
The evidence establishes that Keating met its duty and took all reasonable measures
to ensure that Fabi and the other subcontractors were operating in a safe manner. It is
undisputed that Keating hired a firm named Site Blauvelt Engineers as an independent
inspection agency to perform on-site testing of the concrete and inspection of the steel
reinforcement15 (Joint Pre-Hearing Statement, p. 11, Section IV, paragraph 3). Moreover,
Atlantic City inspectors would come to the site and inspect the steel reinforcement on each
level before the next level could be poured (Tr. 57, 580, 622-623, 643, 657). When
inspecting the reinforcing steel, the Atlantic City inspectors would review the structural and
shop drawings and would walk the deck to observe the steel placement (Tr. 643, 670). Lang
was always present for the city inspectors and Apice would be present on occassion (Tr.
643-644). The city inspectors never raised any concerns regarding steel placement (Tr.
644).
I find that by hiring an independent inspection company to insure the adequacy of
the steel reinforcement and by relying on the Atlantic City inspectors to act as a back-up
check on the adequacy of the work of its subcontractors, Keating acted reasonably and
properly exercised its supervisory authority and control over the worksite.
Accordingly, I find that the Secretary failed to establish by a preponderance of the
evidence that Keating was told about the cracks in the concrete or that, with the exercise of
reasonable diligence knew or should have known of the distressed state of the concrete
slabs.

Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination

     15
          Site Blauvelt was cited by the Secretary for its failures to properly inspect. (Tr. 580)

                                                   17

of the contested issues have been found specially and appear in the decision above. See Rule
52(a) of the Federal Rules of Civil Procedure.

                              ORDER

  For the reasons stated above, the citation issued to Keating Building Corporation

alleging a serious violation of 29 C.F.R. §1926.703(a)(1) and the proposed penalty are
VACATED.

                                             /s/
                                                   Covette Rooney
                                                   Judge, OSHRC

Dated:January 9, 2006 Washington, D.C.

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