Fabi Construction, Inc., and Pro Management Group

Plain-English summary

Four parking-garage levels collapsed during concrete placement at an Atlantic City project, killing four employees and injuring 21. The judge found serious general duty violations because reinforcing mesh did not follow the approved shop drawings and longitudinal steel was installed contrary to recognized industry practice without consulting the structural engineer. A third reinforcing-steel instance was vacated because OSHA did not prove the contractor should have recognized the omitted bottom steel as hazardous. The shoring-plan item was vacated, but violations for removing support before proper concrete-strength testing and for using a formwork system unable to support anticipated loads were affirmed as serious. The judge rejected a willful classification and assessed total penalties of $21,000; the Commission later reviewed this case.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1926.703(a)(2), 1926.703(e)(1), 1926.703(a)(1)
• Outcome: Reinforcing-steel instances were partly affirmed, the shoring-plan item was vacated, and two formwork items were affirmed as serious, for total penalties of $21,000.
• Key point: A concrete contractor had to stop and consult the structural engineer when drawings could not be followed or required work contrary to recognized industry practice.

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. OSHRC Docket No. 04-0776
FABI CONSTRUCTION, INC., and
PRO MANAGEMENT GROUP,
Respondents.

APPEARANCES:

           William G. Stanton, Esq.                                   Joseph P. Paranac, Jr., Esq.
           Suzanne Demitrio, Esq.                                     Joseph F. Lagrotteria, Esq.
           U.S. Department of Labor                                   St. John & Wayne, L.L.C.
           New York, New York                                         Newark, New Jersey
           For the Complainant.                                       For the Respondent.

BEFORE: Covette Rooney
Administrative Law Judge

                                DECISION AND ORDER

   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) two citations issued by the Secretary of Labor (“the Secretary”) and (2) a
proposed assessment of penalty therefor.
A hearing was held in Philadelphia, Pennsylvania, from May 17 through June 2, 2005. The
parties have filed both opening and reply briefs, and this case is now ready for disposition.
Background
During the fall of 2001, Keating Building Corporation (“Keating”) was the prime contractor
for a large construction project involving the expansion of the Tropicana Hotel and Casino in
Atlantic City, New Jersey (“the Project”). (Tr. 126). The Project consisted of a 20-floor hotel tower,
ten levels of parking, and three levels of retail and entertainment establishments below the parking
garage. (Joint Pretrial Statement (“JPS”), p.14, Ex. C-54). The parking garage was built in levels
designated P1 through P10. (JPS, p. 14, Ex. C-54). Keating contracted with Fabi Construction, Inc.
(“Fabi”) and its management company, Pro Management Group1 to be the subcontractor responsible
for concrete placement on the project. Fabi was required to provide labor, materials and equipment
for performing the concrete work, including the building components such as foundations, shear
walls, columns, beams and slabs. (Tr. 11-12). Fabi, in turn, subcontracted with several companies
to assist it in fulfilling its contractual obligations. Specifically, Fabi retained Mid-State Filigree
Systems, Inc., to furnish precast barrier walls and beam and slab products, including shoring
drawings, erection shop drawings, piece drawings and perimeter edge forms. Fabi also retained
Forrest Consultants to prepare steel reinforcement shop drawings which detailed the steel welded-
wire reinforcement, or mesh. Fabi additionally retained Mitchell Bar Placement, Inc., to install the
steel reinforcement bars and mesh. Mitchell placed all reinforcing steel on levels except P4-P6. (JPS,
p.15, Tr. 188, 494-95). On level P5, and possibly on level P4, ironworkers on Fabi’s payroll and
under its supervision placed the reinforcing steel and mesh along Column Line 1. (Tr. 188, 494-95).
Penn Jersey Building Materials, Inc., was retained to furnish the cast-in-place concrete materials for
the Project. Finally, Peri Formwork and Scaffolding prepared shoring drawings and rented or sold
Peri Formwork products to Fabi. (JPS, p. 15).
The garage and tower consisted of continuous reinforced concrete slabs that spanned the
wide, reinforced concrete beams or walls, creating floors. The beams were supported by reinforced
concrete columns. (Tr. 66-67). These beams and slabs were constructed using the “Filigree

   1
      The record reveals that Fabi and Pro Management are owned by Frank Zappone, who is

also the President and sole officer, stockholder and director of both companies. Both companies
share the same address and the same clerical staff that performs administrative functions for both
companies. Moreover, the main function of Pro Management is the managing of Fabi. (Tr. 74-77,
774-77). Indeed, while McCarron stated at the hearing that at the time of the accident he was an
employee of Pro Management (Tr. 74-77), during the inspection he identified himself to the
compliance officer as superintendent of Fabi. (Tr. 1305) On this basis, the Secretary asserts that
the companies should be treated as a single entity. I note that neither Fabi nor Pro Management
has adduced evidence to the contrary and that neither has not objected to being considered a
single entity. Accordingly, for purposes of this matter, Fabi and Pro Management are considered
to be a single entity. Trinity Indus., Inc., 9 BNA OSHC 1515, 1516-17 (No. 77-3909, 1981).

                                              2

Wideslab” method of construction. The filigree system consists of precast slabs and beams that serve
as permanent formwork for the cast-in-place concrete poured on site. The filigree system comprises
about 15 percent of the concrete on the site, with the rest being poured on site. (Tr. 66-67). As the
filigree precast components were brought to the site, they were placed on top of shoring used to
temporarily support the filigree slabs and beams. (Tr. 55, 104-06). After the filigree components
were set on the shoring, reinforcement bars (“rebar”) and mesh were put on top of the filigree precast
concrete in anticipation of concrete being cast on top of the rebar and mesh.(Tr. 212-13).
Industry practice requires that steel reinforcement be placed in accordance with shop
drawings which have been approved by the structural engineer. (Tr. 98, 129, 1642, 1692, 1696-98).
These shop drawings are made from structural drawings prepared by engineers and provided to the
architect. (Tr. 19, 129). Shop drawings for the Project were prepared by MFS, Southwest and Forrest.
(Tr. 13, 718-19). At each level, after the steel reinforcement was laid and before the rest of the
concrete was poured, inspections were conducted by Site-Blauvelt, who checked to ensure that the
steel reinforcement was placed in conformance with the shop drawings. (Tr. 1459-60, 1469-71).
Also, prior to the final pour, Atlantic City inspectors reviewed the site to ensure compliance with the
shop drawings and municipal codes. (Tr. 511-12, 734, 1383-84, 1460).
On October 30, 2003, Respondent’s employees were pouring concrete on level P8 in the
parking garage when levels P4 through P7 collapsed. (Tr. 177, 1475). The collapse occurred along
the westernmost edge of the parking garage along Column Line 1 (Tr. 11-12) and extended east from
Column Line 1 to Column Line 4 and south from the shear wall to Column F-6. (Tr. 1534-39, Ex.
R-19, slides 2, 4, 5). As a result of the accident, four employees were killed and 21 injured. (Tr. 12).
Following an inspection and investigation, OSHA issued two citations. Citation 1 contained
five items, two of which were withdrawn by the Secretary prior to the hearing. (JPS, p.15).
Remaining is Item 1, alleging a violation of the General Duty Clause on the grounds that Fabi failed
to place reinforcing steel as required by industry custom and practice; Item 2, alleging a violation
of 29 C.F.R. § 1926.703(a)(2) for not having shoring plans available at the site for levels P3 to P8;
and Item 5, alleging a violation of 29 C.F.R. § 1926.703(e)(1) on the grounds that Fabi failed to test
the concrete before removing shoring. Citation 2 alleges that Fabi willfully failed to comply with 29

                                               3

C.F.R. § 1926.703(a)(1) because it did not ensure that the formwork supporting level P8 was capable
of supporting all actual and anticipated loads.
Citation 1, Item 1: Serious Violation of Section 5(a)(1)
Citation 1, Item 1 alleges a serious violation of section 5(a)(1)2 of the Act, the “General Duty
Clause.” According to the citation, employees were exposed to the recognized hazard of a collapse
because reinforcing steel was not placed in accordance with industry standards and the structural
and/or shop drawings. The Secretary alleges that Fabi failed to properly install three types of
reinforcing steel: the top steel or mesh, the longitudinal steel, and the bottom steel.
To establish a violation of the General Duty Clause, the Secretary must prove that (1) there
was an activity or condition in the employer’s workplace that constituted a hazard to employees; (2)
either the cited employer or its industry recognized that the condition or activity was hazardous; (3)
the hazard was causing or likely to cause death or serious physical harm; and (4) there were feasible
means to either eliminate or materially reduce the hazard. E.g. Well Solutions Inc., 17 BNA OSHC
1212, 1213 (No. 91-340, 1995); Industrial Glass, 15 BNA OSHC 1594, 1597 (No. 88-348, 1992).
Applicability of the General Duty Clause
The General Duty Clause is applicable only where no specific standard applies to the cited
condition. New York State Elec. & Gas Corp., 17 BNA OSHC 1129, 1130 (No. 91-2897, 1995), aff’d
in pert. part 88 F.3d 98 (2d Cir. 1996); Sun Shipbuilding & Drydock Co., 1 BNA OSHC 1381-82
(No. 161, 1973). However, a citation under section 5(a)(1) will not be vacated where the hazards
presented are interrelated and not entirely covered by any single standard, or where a specific
standard does not address the particular hazard for which the employer has been cited. Ted
Wilkerson, Inc., 9 BNA OSHC 2012, 2015 (No. 13390, 1981).
Fabi argues that the General Duty Clause was not applicable because the standard at 29
C.F.R. § 1926.703(d)(1) applies to the cited hazard. That standard provides that “Reinforcing steel

   2
    The General Duty Clause states that each employer:
   (1) shall furnish to each of his employees employment and a place of employment which
   are free from recognized hazards that are causing or are likely to cause death or serious
   physical harm to his employees;


                                              4

for walls, piers, columns, and similar vertical structures shall be adequately supported to prevent
overturning and to prevent collapse.” (Emphasis added). (Fabi Brief at 15-16).
The Secretary counters that the plain language of the standard addresses rebar placed in
“vertical structures” such as “walls, piers, columns,” while Citation 1, Item 1 addresses steel
placement in the horizontal plane of the concrete floor slabs. Moreover, the Secretary points out that
the hazard addressed by the standard is different than that addressed by the citation. While the
citation is concerned with a collapse of the concrete structure, the legislative history of the standard
makes it clear that the hazard addressed by the standard is the possibility of a collapse of the
reinforcing steel. (Secretary Reply Brief at 11). 53 Fed. Reg. 22612, 22633 (June 16, 1988).
I agree with the Secretary. By its plain words, the standard applies only to “vertical
structures,” while the instant citation involves the horizontal support placed in the slabs. Clearly,
they apply to different conditions. Furthermore, the legislative history of the standard supports the
Secretary’s assertion that the hazard addressed by the standard was not the potential collapse of the
structure, but the collapse of the vertical supports. Id. Accordingly, I hold that there were no
specifically applicable standards and that the General Duty Clause applies to the hazard cited by the
Secretary.
The Recognized Hazard
The recognized hazard as alleged by the Secretary has two parts. First, the Secretary asserts
that it is a recognized hazard for a contractor not to follow the shop drawings 3 provided to it by the
structural engineer and/or detailer. It is not disputed that “shop drawings” are typically used by
contractors in the field when performing the actual construction work. (Tr.128-29, 593). Moreover,
the contractor is expected to follow the shop drawings and may not deviate from them unless
expressly directed to do so by the structural engineer. (Tr. 96-98, 527, 593, 1132, 1814). It is not
disputed that a contractor’s deviation from those drawings, without the permission of the structural

   3
     The citation also alleged that the contractor’s failure to follow the structural drawings

constituted a recognized hazard. The evidence, however, overwhelmingly demonstrates that,
under industry practice, contractors are expected to follow the shop drawings which are prepared
by the structural engineer or detailer from the structural drawings. (McCarron, Tr. 98, Ayub, Tr.
1131-34, Cagley, Tr. 1349-50, Guedelhoefer, Tr. 1642, 1692, 1696-98, 1814).

                                               5

engineer, constitutes a recognized hazard that could lead to structural failure and, therefore, expose
employees to death or serious physical harm. It is also not disputed that the only feasible abatement
method is to install the reinforcing steel in conformance with the drawings in the first instance.
Second, the Secretary alleges that it is a recognized hazard for an employer to install
reinforcing steel in a manner that contravenes industry custom and practice. This hazard would only
be manifested where the structural and/or shop drawings call for the contractor to install the
reinforcing steel in a manner it knows to be contrary to industry custom and practice.
The parties differ over a contractor’s duty when it has reason to believe that the shop
drawings are in error. According to the Secretary, where the contractor believes the shop drawings
are in error it must not proceed. Rather, under such circumstances a contractor has the duty to bring
its concerns to the structural engineer. If the structural engineer confirms the details as set forth in
the drawings, the contractor has fulfilled its duty and must comply with the shop drawings. (Cagley,
Tr. 600-03, 612, 665, Ayub, Tr. 1138-40). On the other hand, Fabi contends that as long as the
contractor makes sure that it has interpreted the shop drawings correctly, it has no further duty to
question the propriety of the drawings and must follow the drawings. (Guedelhoefer, Tr. 1814).
Although Fabi’s expert, Otto Guedelhoefer, who had more recent experience in actual
concrete construction work than the Secretary’s experts James Cagley and Mohammed Ayub,
testified that industry custom and practice requires the contractor to always follow the shop
drawings, I find that industry practice requires a contractor to consult the structural engineer when
that contractor knows or has reason to know that the drawings are or may be in error. (Tr. 598-600,
603, 1131-34). While the contractor may lack the engineering expertise to overrule or ignore the
shop drawings, to hold that he must slavishly follow them ignores the fact that the contractor has
practical experience in the field and is in a position to know when the shop drawings are contrary
to generally accepted practice. The shop drawings may be unclear and confusing, or the detailer who
prepared them may have made a mistake. Under such circumstances, to conclude that industry
practice requires the contractor to follow the shop drawings without first contacting the structural
engineer is an invitation to disaster and clearly contrary to the intent of the General Duty Clause.
Moreover, the evidence demonstrates that Fabi had occasion to contact the structural engineer
and request revisions. Allen Zappone, Fabi’s owner, testified that there was an instance where the

                                               6

drawings created the possibility that the slab could disengage and fall onto employees below. To
avoid this, he requested and received revisions that changed the location of the beams and installed
a “crash wall.” (Tr. 801-02). Clearly, then, industry custom and practice recognizes the contractor’s
right and obligation to contact the structural engineer when it has reason to believe that the shop
drawings are in error or are otherwise in need of revision.
Accordingly, the Secretary has demonstrated by a preponderance of the evidence that it is a
recognized hazard in the concrete construction industry for a contractor to deviate from the shop
drawings, or to follow those drawings when it knows or has reason to know that they call for
construction methods contrary to industry custom and practice, without first contacting the structural
engineer to ensure that those drawings are not erroneous.
Instance (a): The Mesh (Top Steel)
The top steel placed over the filigree panels were composed of two types of steel mesh. Shop
drawings indicate that S9 mesh was to be placed from Column B-9 to Column E, and that the S21
mesh was to be placed from Column E to Column F-6. (Ex. C-24).4 It is undisputed that this steel
mesh was not embedded into the columns or hooked over dowels near the shear wall. The evidence
demonstrates that, in many areas, it was not possible to place it into the columns because of the
presence of the precast crash wall. In those instances, the mesh was placed as far into the concrete
as possible. In those areas, the mesh either butted up to the dowels or was embedded 2-4 inches.
(Fiorentino, Tr. 510, DeStefano, Tr. 722, Ayub, Tr. 898-99, Guedelhoefer, Tr. 1790-91).
Robert Rodriguez, an ironworker for Mitchell Rebar, who was installing the mesh, testified
that he was concerned that the mesh abutted but was not hooked over the dowels and that he brought
his concerns to the attention of his foreman, Frank DeStefano. Although DeStefano told Rodriguez
that the installation was correct, Rodriguez remained concerned because he had never seen mesh
installed in that manner. Rodriguez continued to raise his concerns. The night before the collapse,
after being rebuffed for a third time, Rodriguez hooked several sheets of mesh over the dowels to

   4
     S9 mesh is 8 feet wide and 15 to 16 inches long, with bars spaced every 12 inches and

cross wires running into the mesh at each end. S21 mesh is 7 feet wide, rather than 8 feet, and
does not have a cross wire at the end. (Tr. 889-91).

                                              7

demonstrate that such an installation was possible. The next morning, after the collapse, the sheets
he installed were the only ones still hanging from the dowels. (Tr. 693-96).
According to the Secretary, this failure to adequately embed the mesh into the columns and
shear wall, or to place the mesh over the vertical dowels, compromised the integrity of the beam-
column joints and exposed employees to the hazard of a partial or full collapse of the structure.
(Ayub, Tr. 903-04, 927-28). The Secretary asserts that the mesh should have been embedded 8 to
9 inches into the wall. (Ayub, Tr. 899). She argues that the failure to embed the mesh or hook it over
the dowels was contrary to the shop drawings, which called for the steel to be embedded into the
columns or shear wall. (Ayub, Tr. 895-96).
On the other hand, Fabi contends that the shop drawings did not call for the mesh to be
embedded into the columns. (Guedelhoefer, Tr. 1582-85, 1591-92, 1683-85, 1693-94). Fabi asserts
that the purpose of the mesh was not to secure the beam to the column but rather to reinforce the
juncture between the beam and the slab. (Guedelhoefer, Tr. 1583, 1687). Therefore, there would be
no need for the mesh to be embedded into the column. (Guedelhoefer, Tr. 1687).
The preponderance of the evidence establishes that the shop drawings called for the mesh
reinforcement to be embedded into the columns. Frank DeStefano testified that the shop drawings
prepared by Forrest Consultants for levels P5 through P9 called for the mesh to be brought to the
edge of the building. (Tr. 722, Ex. C-24). However, DeStefano testified that it was not possible to
take the mesh to the edge of the building because of the presence of the crash wall, which extended
down the entirety of Column Line 1 and prevented the mesh from being embedded more than 4
inches. (Tr. 722-24, Ex. C-105, p. 9 of 118). DeStefano’s reading of the drawings was supported by
Ayub. (Tr. 895-96, Ex. C-105, p. 9 of 118). In contrast, Guedelhoefer’s testimony that the shop
drawings did not call for mesh embedment was based on shop drawings prepared by Mid-State
Filigree. (Tr. 1684-85, Ex. R-2). However, the record reveals that Exhibit R-2 was not intended to
constitute the shop drawings for the placement of the mesh reinforcement. Hugh McCarron testified
that Mid-State Filigree did not provide the top steel and that Exhibit R-2 was not intended to show
the reinforcing mesh. (Tr. 350-51). Indeed, an examination of Exhibit R-2 clearly reveals that it was
never intended to be used as the shop drawing for mesh installation. In both section 1 and section
6 of the drawing, where the top steel is indicated, the drawing clearly states “Top steel as req’d . (By

                                               8

others).” These “others” are the Forrest Consultants shop drawings, specifically, Exhibit C-24,
which, as previously noted, required that the mesh be taken to the edge of the building.
While the shop drawings called for the mesh to be either fully embedded into the columns
or hooked over the dowels, the evidence is undisputed that, except for the mesh sheets placed by
Rodriguez, the mesh was only partially embedded or abutted against the dowels. Fabi contends that
a violation of the General Duty Clause did not occur because the placement of the crash wall made
full embedment impossible. While the Secretary does not dispute that full embedment was not
possible, Fabi’s defense misses the point. Although the “recognized hazard” was the failure to
properly embed or otherwise secure the mesh as required by the shop drawings, the Secretary does
not claim that abatement could only have been achieved by fully embedding the mesh. Rather, the
Secretary asserts that abatement could have been accomplished by Fabi contacting the structural
engineer and pointing out its inability to conform to the shop drawings.
I agree. It is undisputed that the failure to follow the shop drawings constitutes a recognized
hazard. Where it is not possible to follow those drawings, the contractor can either (1) do the best
it can, or (2) bring the difficulty to the attention of the structural engineer. By definition, the first
option requires the contractor to take it upon itself to deviate from the shop drawings, an action that
all parties agree constitutes a recognized hazard. Thus, the only feasible option is for the contractor
to stop work and contact the structural engineer for further instructions. Here, it is undisputed that
Fabi chose the first option. By doing so, it exposed its employees to a recognized hazard.
That the peculiarities of this construction might have made it unnecessary to embed the mesh
into the columns because, as Guedelhoefer stated, the purpose of the mesh was to tie the beams to
the slab, not the beam to the column, does not mandate a different result. The shop drawings plainly
called for mesh embedment and, as Fabi points out in regard to the longitudinal and bottom steel,
infra, it lacked the authority to take it upon itself to ignore those drawings. If Fabi knew that
embedment was unnecessary or impossible to achieve, yet required by the drawings, industry
practice clearly called for it to halt the installation and seek guidance from the structural engineer.
For the foregoing reasons, Item 1, Instance (a) of Serious Citation 1 is affirmed as a serious
violation.

                                               9

Instance (b): Longitudinal Steel
The approved shop drawings called for the placement of longitudinal bars or rebars along
Column Line 1. The evidence is undisputed that none of the bars passed through the column cores.
(Fiorentino, Tr. 502, 505, Rodriguez, Tr. 702-03). Both Cagley and Guedelhoefer testified that it was
contrary to industry custom and practice for at least some of the rebars to pass through the columns.
(Cagley, Tr. 602-03; Guedelhoefer, Tr. 1811-12). Moreover, Guedelhoefer testified that the failure
of the rebars to pass through the columns violated the structural integrity requirements of the ACI
(American Concrete Institute) industry code. (Tr. 1686-90). Fabi Superintendent Hugh McCarron
testified that he was generally familiar with the ACI code and was usually provided with sections
of the code relevant to the work he was performing. (Tr. 87-88).
The preponderance of the evidence establishes that the approved shop drawings did not call
for these rebars to pass through the columns. (Cagley, Tr. 659-661,5 Guedelhoefer, Tr. 1639, 1688).
Moreover, the narrow 12- inch columns effectively prevented the rebars from being placed within
the column core. (Rodriguez, Tr. 703, 707-09, Guedelhoefer, Tr. 1706).
The Secretary does not seriously dispute that the shop drawings did not call for the
longitudinal rebars to pass through the columns and concedes that, due to the small size of the
columns, it was not possible to do so. However, she asserts that because it was contrary to industry
custom and practice to install the longitudinal rebars without at least some of them passing through
the columns, Fabi should have stopped work and consulted with the structural engineer. Fabi does
not dispute that the rebars should have passed through the columns, but asserts that it fulfilled its
duty by complying with the shop drawings.
Unlike the mesh, the evidence here demonstrates that Fabi was in compliance with the shop
drawings. The problem, however, is that Fabi knew or should have known that it was contrary to
industry custom and practice to install the longitudinal steel without having some of them pass

   5
     In her brief, the Secretary asserts that Cagley testified the shop drawings called for the

rebars to pass through the columns. (Tr. 601-03). However, an examination of that testimony at
best demonstrates uncertainty. According to Cagley, “they’re graphically depicted as going across
the area where the column is. It’s not very specific as to whether they go through the column or
adjacent to the column.” Elsewhere, however, Cagley more definitively agreed the shop drawings
did not show the rebars passing through the columns. (e.g., Tr. 659-61).

                                             10

through the column. Fabi is an experienced concrete contractor. While not qualified to take it upon
itself to violate the shop drawings, it was sufficiently experienced to know that those drawings
required it to perform its duties in a manner that violated industry custom and practice and
compromised the structural integrity of the building. Fabi would have the Commission conclude that
it satisfied the General Duty Clause, and freed the workplace of a recognized hazard, by slavishly
adhering to the shop drawings, regardless of whether it knew or should have known that those
drawings compromised the structural integrity of the project. As noted supra, such a holding would
be contrary to the General Duty Clause. Accordingly, I conclude that by not stopping to consult the
structural engineer to ensure that the shop drawings were either properly drawn or interpreted, Fabi
failed to free the workplace of the recognized hazard posed by performing construction in a manner
that violated industry custom and practice.6
On the basis of the record, Item 1, Instance (b) of Serious Citation 1 is affirmed as a serious
violation.

   6
     Fabi cites to a line of cases for the proposition that when a cited hazard falls within the

expertise of a specialist, “an employer is justified in relying upon the specialist to protect against
hazards related to the specialist’s expertise so long as the reliance is reasonable and the employer
has no reason to foresee that the work will be performed unsafely. Sasser Elec. and Mfg. Co., 11
BNA OSHC 2133, 2136 (No. 82-178, 1984). See also City Oil Well Serv. Co., 12 BNA OSHC
1249, 1250 (No. 81-1797, 1985); Cities Serv. Oil Co., 4 BNA OSHC 1514, 1518 (No. 4648,
1976), aff’d 577 F.2d 126 (10th Cir. 1978). Thus, Fabi argues that it properly relied (1) on the
structural engineer to properly prepare the shop drawings, and (2) on Site-Blauvelt and the
Atlantic City inspectors whose job was to inspect to ensure that the steel reinforcement was
properly placed. Fabi’s reliance is misplaced. The line of cases cited by Fabi involves situations
where an employer hires another party to perform work because it lacks the expertise or ability to
perform that work itself. Even in those situations, however, the employer may still be responsible
where it has reason to foresee that the work is being performed in an unsafe manner. Sasser Elec.
and Mfg. Co., 11 BNA OSHC at 2136; Cities Serv. Oil Co., 4 BNA OSHC at 1518. Here, Fabi’s
reliance on the shop drawings was not reasonable where it knew those drawings were contrary to
industry custom and practice. Similarly, knowing the shop drawings were contrary to industry
custom and practice, it was irresponsible to place the duty to uncover the errors on third parties.
An employer has no right under the Act to gamble with employee safety. I would also note that
the record shows that the purpose of the Site-Blauvelt inspections was to ensure that installation
complied with the shop drawings. (Ayub Report, Ex. C-105, p. 17 of 118). Thus, Fabi could not
reasonably rely on Site-Blauvelt to uncover errors where its base of reference itself was in error.

                                             11

Instance (c): Bottom Steel
The Secretary asserts that Fabi violated industry custom and practice by not installing B49
bottom reinforcing steel bars7 along Column Line 1 for the floor slabs.
The evidence establishes that the structural drawings called for the installation of B49 bottom
steel, but that the bottom steel was omitted from the approved shop drawings for levels P4 through
P8. (Tr. 145-46, 357-59, 659-61,1000-04, Exs. C-11, R-4, R-5, R-6).8 Ayub testified that the shop
drawings showed B49 bottom steel for level P3 but did not show it for levels P4 through P8. He had
no explanation for the shop drawings not showing the bottom steel for those levels. (Tr. 1874-75).
Guedelhoefer suggested the B49 bars were part of the filigree panels provided by Mid-State Filigree
and were therefore not shown by the detailer. (Tr. 1591-92). This was disputed by Ayub, who noted
that all rebars were provided by the contractor and not by Midstate Filigree. (Tr. 1591-92).
I find that the Secretary failed to establish by a preponderance of the evidence that the failure
to include bottom steel in the shop drawings presented a hazard of sufficient notoriety that Fabi
should have stopped work to check the correctness of those drawings with the structural engineer.
Whether he was correct or not, Guedelhoefer’s theory that the bars were included in the filigree
panels posited a plausible theory regarding why Fabi might have concluded that the shop drawings
were not in error. Moreover, while the evidence regarding industry recognition of the hazard posed
by failing to pass the longitudinal steel through the column core was overwhelming, evidence
regarding industry recognition of the failure to include bottom steel was equivocal. Thus, while all
the experts agreed that the longitudinal bars needed to pass through the columns, there was a dispute
among the experts regarding whether the bottom bars depicted in the structural drawings would have
added to the stability of the structure. Ayub testified that the failure to include bottom steel created
a serious construction flaw which could lead to collapse. ( Tr. 1003-04) On the other hand,
Guedelhoefer noted that the bottom bars depicted on the structural drawings were too short to have

   7
     “B49 bottom reinforcing steel bars” refers to bottom steel bars of number 4 size that are

to be placed 9 inches apart. (Tr. 998-99, 1002).
8
Guedelhoefer testified that the structural drawings were unclear and that while the bars
were shown in some of the drawings, they were omitted in others. (Tr. 1691-93)

                                              12

any structural value. (Tr. 1691-93). Moreover, Cagley testified only that it was “typical” that bottom
steel goes 6 inches into the support. (Tr. 611-12).
On this record, I find that the Secretary failed to establish by a preponderance of the evidence
that Fabi knew or should have known that the failure to install bottom rebars was contrary to industry
custom and practice such that it should have stopped work to consult with the structural engineer.
Accordingly, Item 1, Instance (c) of Serious Citation 1 is vacated.
Citation 1, Item 2: Serious Violation of 29 C.F.R. § 1926.703(a)(2)
The Secretary alleges that Fabi failed to comply with 29 C.F.R. § 1926.703(a)(2) by not
having shoring plans available at the site for levels P3 to P8. The cited standard provides that:
Drawings or plans, including all revisions for the jack layout, formwork (including
shoring equipment), working decks, and scaffolds, shall be available at the jobsite.
To establish a violation of a specific standard, the Secretary has the burden of proving: (a)
the applicability of the cited standard, (b) the employer’s noncompliance with the standard’s terms,
(c) employee access to the violative conditions, and (d) the employer’s actual or constructive
knowledge of the violation. (i.e., the employer either knew, or with the exercise of reasonable
diligence could have known, of the violative conditions.). Atlantic Battery Co., 16 BNA OSHC
2131, 2138 (No. 90-1747, 1994).
The Secretary asserts that Fabi failed to produce any drawings specifically showing the
shoring plans for levels P3 to P8. In particular, she notes that, despite producing an extensive set of
Peri shoring plans that were used for levels P2 and below, Fabi failed to produce any plans
specifically applicable to levels P3 to P8. (Ex. R-1). Moreover, she argues that although McCarron
testified that he made drawings by hand for levels P3 to P8 (Tr. 231), those drawings were not
produced in discovery or during the hearing.
The Secretary also argues that while the shoring plans set forth in Exhibit R-1 showed only
Peri equipment, Fabi also used shoring manufactured by Waco and Aluma. (Tr. 105-06). The
Secretary also points out that Foreman James Cincotti, who supervised employees engaged in
shoring operations, testified that he never saw a shoring plan. (Tr. 762). Finally, the Secretary asserts
that, while testimony established that the same shoring plan may be used for multiple levels if those
levels are “typical” (Cagley, Tr. 632), levels P3 to P8 were not identical to level P2. The Secretary

                                               13

observes that, unlike level P2, levels P3 to P8 had a 48-foot slab along Column Line 1. (Tr. 1297).
Furthermore, on level P2 and below, there was an additional horizontal beam along Column Line
2 that was narrower than its counterpart on levels P3 to P8.
Contrary to the Secretary’s assertions, a review of Exhibit R-1, pp. 134-142, reveals that the
shoring plan specifically applied to levels P3 to P8. Although labeled as applicable to P2, the legend
box, which gave applicable floor elevations, noted that the plan was to be repeated for each of the
upper levels. (Tr. 1717). Indeed, Guedelhoefer testified that this type of shoring plan was customary
in the industry and did not create any hazard. (Tr. 1717-18, 1723). These plans were kept in the Fabi
field trailer and copies were available to employees erecting the shoring. (Tr. 257). While those plans
applied to Peri shoring, McCarron testified that he gave workers marked-up drawings to show the
spacing of the Waco and Aluma shores. (Tr. 331-39, 342). Although copies of these marked-up plans
were not provided during these proceedings, other evidence supports McCarron’s assertion that they
were available at the site. In particular, Cincotti testified that he received marked-up shoring plans
from McCarron. (Tr. 768-69). I note that this testimony is inconsistent with Cincotti’s earlier
testimony that he never saw a shoring plan. (Tr. 762). Moreover, he also testified that he was
specifically directed by McCarron where to place the shoring and that McCarron even placed chalk
marks to indicate its placement. (Tr. 768-69) Thus, regardless of whether he actually received a
written plan, these explicit instructions may well have made it unnecessary for Cincotti to actually
receive a copy of the shoring plans.9 Finally, both McCarron and Guedelhoefer testified that the Peri
drawings contained notations for “other” brands of shoring and, therefore, were part of the plans.
(McCarron, Tr. 375, Guedelhoefer, Tr. 1802).
Finally, I find unpersuasive the Secretary’s argument that differences in levels P3 to P8 from
level P2 made the shoring plan set forth in Exhibit R-1 inapplicable to these upper levels. The
Secretary failed to adduce evidence to establish that these differences rendered the plans set forth in
Exhibit R-1 inapplicable to levels P3 to P8.10 What the preponderance of the evidence does establish

   9
       I note that the standard only requires that the shoring plans be available.
   10
      I find it particularly relevant that the Secretary has not cited Fabi for any deficiencies in

the shoring for levels P3 to P9, even though OSHA was able to substantially recreate the shoring
plan during its investigation of the collapse. (Ex. R-19, slides 106-109).

                                               14

is that levels P2 and higher had a common ceiling height of 10 feet and a typical configuration
requiring a shoring plan that did not change. (Tr. 262, 328-29, 334-35). Furthermore, both McCarron
and Cincotti testified that McCarron provided marked-up plans for the upper levels and that these
plans were used to place shoring. (Tr. 331-39, 342 768-69).
Accordingly, I find that the Secretary failed to establish by a preponderance of the evidence
that Fabi violated 29 C.F.R. § 1926.703(a)(2). Item 2 of Serious Citation 1 is therefore vacated.
Citation 1, Item 5: Serious Violation of 29 C.F.R. § 1926.703(e)(1)
The Secretary alleges that Fabi failed to comply with 29 C.F.R. §1926.703(e)(1) which states
that:
Forms and shores (except those used for slabs on grade and slip forms) shall not be
removed until the employer determines that the concrete has gained sufficient
strength to support its weight and superimposed loads. Such determination shall be
based on compliance with one of the following: (i) The plans and specifications
stipulate conditions for removal of forms and shores, and such conditions have been
followed, or (ii) The concrete has been properly tested with an appropriate ASTM
standard test method designed to indicate the concrete compressive strength, and the
test results indicate that the concrete has gained sufficient strength to support its
weight and superimposed loads.
There is no dispute that plans and specification did not stipulate conditions for the removal
of forms and shores. Rather, the contract between Fabi and Keating merely paraphrased the OSHA
standard and required that “Forms, shores, or reshores shall be removed only after the concrete has
rendered sufficient strength to carry the dead weight of the concrete plus all applicable construction
and external loads without causing damage, overstress, or excessive or permanent deflection.” (Ex.
C-44, p. 9 ¶E). Therefore, the Secretary asserts that Fabi violated the requirement that the concrete
pass a compressive strength test before the shores could be removed as required by paragraph (ii)
of the standard. Specifically, the Secretary contends that the standard required Fabi to test the
strength of the concrete prior to “cracking” the shores. “Cracking” the shores is a process whereby
the shores are loosened and lowered a few inches to enable the slab to deflect downward and assume
its “natural” position. After a few hours, the shores are retightened and the slab supported in its new
position. These “reshores” remain in place until the shoring system is ready to be removed. (Tr.
1030-31, 1433-37, 1554). The evidence establishes Fabi did not test the compressive strength of the
concrete until seven days after the pour, prior to the final removal of the shores. (Tr. 218, 1439-40,

                                              15

1724-25, Ex. R-11). However, the shores on levels P5 to P7 were generally cracked on the fourth
or fifth day after the concrete was poured. (Tr. 1428, 1558). (Secretary Brief at 38-41).
Fabi takes the position that the standard does not apply to “cracking” the shores, but only to
the final removal of the shores. It argues that the “cracking” of shores is not addressed by the
standard because “cracking” shores and removing shores are two independent operations. Fabi points
out that McCarron testified that when “cracking” shores, the entire shore, including the shore head,
its continuous aluminum beam support, and its braces, remained in place. As a result, the shore
frames are still supported as if they are holding the wet load of concrete. (Tr. 1435). Therefore,
according to Fabi, the Secretary’s attempt to apply the standard is at odds with the undisputed facts
and plain language of the standard itself. (Fabi Brief at 55).
Finally, Fabi points out that it conducted tests of the concrete before finally removing the
shores and that those tests demonstrated the concrete exceeded the minimum requirements for shore
removal. (Tr. 1440-57, 1725, Ex. R-11). Thus, it argues it was in compliance with the standard.
The Commission must defer to the Secretary’s interpretation of an ambiguous 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 parties, and the 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).
I find that the Secretary’s interpretation is reasonable and conforms to the purpose and
wording of the standard. Accordingly, the Commission must defer to the Secretary’s interpretation.
While Fabi correctly cites McCarron’s testimony for the proposition that when the shores are
“cracked” they remain in place as if they were still holding the wet cement, it overstates the case by
implying that, when cracked, they continue to bear the load of the wet concrete. However, it is clear
from McCarron’s testimony that he was stating only that they were not moved from their location
and remained in place for when they would be retightened and become reshores. The critical point
is that during the “cracking” operation, the shore heads are lowered and are no longer supporting the
slab. Whether “cracked” or permanently taken down, if the shores are lowered prematurely the slab

                                             16

can fail. As Ayub testified, “the slab does not know that the shores have been cracked 2 inches or
it has been removed.” (Tr. 1201).
Guedelhoefer testified that if the slab collapsed, it would be caught by the lowered shore head,
thus preventing a collapse and protecting employees. (Tr. 1728-29) This, Fabi argues, demonstrates
that the standard cannot be read to apply to the “cracking” of shores. However, Ayub testified that the
shores are not designed for the type of impact that would occur in the event of a failure and that “once
the shore begins to fail then there’s no end to it.” (Tr. 1285). Further, even if the slab fell a few inches,
the shores could buckle, chunks of concrete could strike employees below, and employees on the
collapsed slab would fall. (Tr. 1285). I find that regardless of which expert is correct, the pertinent
point is that whether the shores are “cracked” or permanently removed, a failure of the slab is possible
unless the contractor tests the concrete to ensure that it is capable of supporting its own weight.
Accordingly, I find that the Secretary’s interpretation is consistent with the purpose of the standard.
Finally, I note that section 1926.703(e)(2) states that:
Reshoring shall not be removed until the concrete being supported has attained
adequate strength to support its weight and all loads in place upon it.
Where, as here, the same equipment is used for both shoring and reshoring, Fabi’s
interpretation of the cited standard would render section 1926.703(e)(2) redundant because the
removal of the reshores would be considered the first time the shoring is removed and therefore
covered under section 1926.703(e)(1). Thus, there would be no purpose to section 1926.703(e)(2).
I conclude, therefore, that the Secretary’s interpretation of the cited standard is both reasonable and
consistent with the regulatory scheme set forth in section 1926.703(e).
I also find the violation to be serious. Under section 17(k) of the Act, 29 U.S.C. § 666(k), a
violation is serious “if there is a substantial probability that death or serious physical harm could
result.” That provision does not mean that the occurrence of an accident must be a substantially
probable result of the violative condition, but, rather, that a serious injury is the likely result should
an accident occur. Miniature Nut and Screw Corp., 17 BNA OSHC 1557, 1558 (No. 93-2535, 1996).
Guedelhoefer’s opinion was that the loosened shores would catch any collapsing slab and protect any
employees below. That opinion, however, overlooks the fact that even a collapse of the slabs caught
by the shore heads could result in employees on the slab being subjected to injuries from falls as well

                                                 17

as injuries from falling or moving equipment. Moreover, even if the slabs might be caught by the
shore heads, I am swayed by Ayub’s concern that there also is a likelihood of a complete or partial
collapse of the slab, which would drop employees standing upon it as well as fall onto employees
below. The degree of the collapse would largely depend upon the strength of the slab, and, without
testing, the strength of the slab is unknown.
Based on the foregoing, Item 5 of Serious Citation 1 is affirmed as a serious violation.
Citation 2, Item 1: Willful Violation of 29 C.F.R. § 1926.703(a)(1)
Finally, the Secretary alleges Fabi willfully failed to adequately support level P8, as required
by 29 C.F.R. § 1926.703(a)(1),11 making the formwork incapable of supporting the loads imposed by
level P8. The Secretary argues that the failure to properly place reinforcing steel, as set forth in
Citation 1, Item 1, resulted in the slabs being in distress. As a result, those slabs which were intended
to support the weight of level P8 were incapable of supporting the reasonably anticipated load.
The Secretary further contends that Fabi knew or should have known of the distressed
condition because of warnings provided by several employees regarding an unusual pattern of cracks
that developed in the slabs, in conjunction with its knowledge that it failed to properly install the
reinforcing steel. Moreover, the Secretary asserts that the violation was willful because Fabi ignored
warning signs the floor slabs were in distress and placed its employees at risk by proceeding to pour
concrete before qualified individuals had evaluated the conditions. (Secretary Brief at pp. 17-28)
Fabi contends it did not violate the standard. It first argues that the standard does not apply
as it applies only to temporary structures. Because the slabs are permanent structures, they cannot be
formwork and, therefore, are not covered by the standard. It also argues that even if the standard does
apply, this item must be vacated because it lacked knowledge of the violation. Fabi contends that the

     11
          The cited standard provides as follows:

     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.

                                               18

steel reinforcement was placed in conformance with the shop drawings and that, in any event, the
cracks in the slabs that developed were typical of shrinkage cracks and did not provide any warning
that the slabs were in distress. Fabi next argues that a violation of the standard cannot stand because
abatement was not feasible. It contends that the record demonstrates that there was no way to
calculate the number of shore levels needed to adequately support level P8. (Fabi Brief at 36-42).
Finally, Fabi argues that, even if the standard was violated, the violation was not willful. Fabi urges
that it fulfilled its obligation by reporting the cracks to the General Contractor and that it lacked a
“heightened awareness” that there was a violation. (Fabi Brief at 43-50).
Applicability of the standard
“Formwork” is defined at section 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.” The Secretary asserts that because the weight of the slab being poured is distributed by
the shoring to the slabs below, those slabs must be part considered part of the total system of support
covered by the standard.
Fabi asserts that under industry custom and practice, the definition of “formwork” includes
only temporary structures. It points out that ACI SP4, entitled Formwork for Concrete, defines
“formwork” as a “temporary structure that supports its own weight and that of the freshly placed
concrete as well as construction line loads including materials, equipment and workmen.”
(Guedelhoefer, Tr. 1740-41, Ex. R-17, pp. 57-58, 71-72, Appendix 13).
As noted supra, the Commission must defer to the Secretary’s interpretation of an ambiguous
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 parties, and the 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 Fabi’s objection to the Secretary’s strained interpretation of the
standard, I cannot conclude that her interpretation is unreasonable. Fabi properly argues that

                                              19

“formwork” is usually thought of as temporary structures. However, the definition as set out 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. Thus, like a chain that is no stronger than its weakest link,
if those slabs are incapable of supporting the anticipated weight of the load, the capacity of the
shoring is irrelevant. So viewed, it is reasonable to consider the slabs as part of the formwork when
they are being used to support the weight of the upper levels. 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 to P7, 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.
Did Fabi have knowledge of the violation?
To establish a violation of a standard, the Secretary must establish by a preponderance of the
evidence that the employer knew, or with the exercise of reasonable diligence should have known,
of the violation. American Wrecking Corp. v. Secretary, 351 F.3d 1254, 1261 (D.C. Cir. 2003).
There is no dispute that the anticipated load on level P8 was 175 pounds per square foot,
which consisted of 125 pounds per square foot for the wet concrete and an additional 50 pounds per
square foot for the weight of the people and equipment on the deck. (Ayub, Tr. 1046-47). While the
shoring system was designed to support that load, (Guedelhoefer, Tr. 1753-54), the collapse
demonstrates that, in practice, something went wrong and the entire system of support was not
capable of supporting the load. (Ayub, Tr. 1195-96).12 Here, the issue of knowledge depends on

     12
        I note that, in its brief, Fabi cites to Tr. 1195-96 as support for its assertion that Ayub

testified that the shoring was capable of supporting the loads. However, my reading of the
transcript shows the opposite:
Q And wasn’t the shoring in place as of the time of the collapse more than capable of
supporting those imposed loads?
A It was not, because those shores were placed on the slab which was already distressed.

                                               20

whether the pattern of cracks that formed in the concrete put Fabi on notice that the slabs were in
distress and that the “total system of support” was incapable of supporting the anticipated loads.
It is not disputed that it is common for shrinkage cracks to develop in newly-cured concrete.
These cracks are expected and are not a matter of concern. (Campano, Tr. 437, Cagley, Tr. 625-27,
676-77).13 However, several employees testified they observed cracks developing along Column Line
1 that were of a pattern and size that raised concerns regarding the stability of the slabs. (Brooks, Tr.
405-08, Campano, Tr. 427-35, Roberts, Tr. 469-75, 747-48). For example, John Campano, a Fabi
carpenter, testified that one crack was wide enough to insert a credit card (Tr. 446) and that others
went all the way through the concrete and were as much as 1/8 inch wide. (Tr. 432). Some of these
employees communicated their concerns to Hugh McCarron (McCarron, Tr. 239-240, Campano, Tr.
435-36, Roberts, Tr. 475, Cincotti, Tr. 765-66).
McCarron examined the cracks to determine whether they were just on the surface or went
entirely through the concrete. (Tr. 241-42). He found that the cracks did not extend through the panels
and noted that they did not change over time. He did not see any cracks large enough to insert a credit
card and considered the cracks merely hairline cracks. Moreover, he failed to detect any discernable
pattern in the cracks or note any open cracks. McCarron was not alarmed by these cracks and
concluded that they were the results of deflection caused when the shores were cracked and the slabs
allowed to assume their natural position. (Tr. 239-47). Accordingly, McCarron never brought these
cracks to anybody’s attention. (Tr. 239-47).
I find that the preponderance of the evidence establishes that the cracks went through the
concrete and were wide enough to insert a credit card (criteria which McCarron agreed would indicate
a problem) and therefore were of sufficient size to constitute a warning that the slabs were in distress.
Although McCarron testified that he did not see any cracks penetrating through the concrete or wide
enough to insert a credit card, his testimony was contradicted by at least four employees, many with
considerable experience in the field. These employees understood the natural hairline cracking which

     13
       I note that after the rebuild following the collapse, cracks again appeared in the rebuilt

slabs. (Tr. 247, 439, 769-70).

                                               21

was to be expected on this type of construction, and yet they were concerned by the size and degree
of the cracking that they witnessed.
I would also note that the cracking had to be considered in the context of the problems with
the steel reinforcement. As discussed in Citation 1, Item 1, Fabi knew or should have known that
neither the steel mesh nor the longitudinal steel was properly embedded into the columns. Given this
knowledge, McCarron should have taken the concerns of these employees more seriously and ensured
that the matter was brought to the attention of the structural engineer.
Accordingly, I find that Fabi knew or should have known that the cracks observed in the
concrete constituted a warning that the formwork was incapable of supporting the anticipated load.
Feasibility of Abatement
Fabi argues it was not feasible to abate because the record fails to disclose how many levels
of shoring would have been necessary to support level P8. Moreover, if contacting the structural
engineer would have abated the hazard, Fabi contends it fulfilled its duty. (Fabi Brief at 41-42)
To establish the affirmative defense of infeasibility of abatement, an employer must prove that
(1) the means of compliance prescribed by the applicable standard would have been infeasible under
the circumstances in that (a) its implementation would have been technologically or economically
infeasible, or (b) necessary work operations would have been technologically or economically
infeasible after its implementation, and (2) either (a) an alternative method of protection was used,
or (b) there was no feasible alternative means of abatement. A.J. McNulty & Co., Inc., 19 BNA OSHC
1121, 1129 (No. 94-1758, 2000).
Fabi has not established its asserted affirmative defense. Here, the standard does not set forth
a particular method of abatement. However, the Secretary does not assert that Fabi could have abated
by adding additional levels of shoring. Indeed, the record indicates that Fabi did not have the authority
to add levels of shoring without first consulting the structural engineer. Thus, the Secretary asserts
that Fabi should have consulted the structural engineer to allow that individual to determine if there
was a problem that needed addressing. Fabi does not assert that such consultation was infeasible.
Rather, it asserts that it fulfilled that duty because an employee, Campano, informed Keating, the
general contractor, about his concerns. (Tr. 435-36).

                                               22

The problem with Fabi’s defense is that there is nothing in the record to suggest that
Campano, a carpenter for Fabi, was a management official with authority to bring potential structural
problems to the attention of the general contractor. Indeed, Campano’s testimony demonstrates that
his statement to Ken Lang, the Keating official at the site, was at best informal and made during a
work break:
Q Did you have any other discussions with any members of management at the site
about these cracks?
A Only Kenny Lang from Keating.
Q And what did you say to Kenny Lang?
A Well we were sitting with my guys having a break, we asked Kenny if he saw the
cracks over on one line. He says I’ve seen cracks all over this place.
Q Do you know if Mr. Lang went over to investigate?
A I don’t believe so, no.
Q Did you at any point discuss the cracks with anyone else?
A Just our men. (Tr. 436).
It is not reasonable to expect that the general contractor will investigate every concern
informally made by a subcontractor’s employees. Rather, the proper procedure would have been for
McCarron, having been alerted to the potential problem by his employees, to make an official request
to Keating or directly to the structural engineer, to have the matter investigated. Having failed to do
this, Fabi failed to do what was feasible to abate the violation.
Willfulness
A violation is willful if committed with intentional, knowing or voluntary disregard for the
requirements of the Act or with plain indifference to employee safety. L.E. Myers Co., 16 BNA
OSHC 1037, 1046 (No. 90-945, 1993). A willful violation is differentiated from a nonwillful
violation by a heightened awareness, a conscious disregard or plain indifference to employee safety.
General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068 (No. 82-630, 1991)
(consolidated). A willful charge is not justified if an employer has made a good faith effort to comply
with a standard or to eliminate a hazard even though the employer’s efforts are not entirely effective
or complete. Keco Indus., Inc., 13 BNA OSHC 1161, 1169 (No. 81-263, 1987).
The Secretary asserts that Fabi willfully violated the cited standard by ignoring signs of
distress and placing its employees at risk by proceeding to pour concrete before the conditions had
been evaluated. She analogizes this case to Arcadian Corp., 20 BNA OSHC 2001 (No. 93-0628,

                                              23

2004). In that case, management knew that “weep hole leaks” in the liner of a urea reactor indicated
that the liner was breached and in danger of exploding. Nonetheless, it allowed the reactor to continue
in operation. Finding the violation willful, the Commission held that:
Absent any evidence that Arcadian had a good faith basis for concluding that the leaks
were caused by anything other than a breach, its failure to shut down the reactor
demonstrates a reckless disregard of employee safety....Their decision to treat weep
hole leaks as something other than warnings of a hazardous breach without any
reasonable basis in fact and, essentially, ignore them was the equivalent of gambling
with employee safety and was, indeed, reckless.
20 BNA OSHC at 2019.
I find the Secretary’s reliance on Arcadian to be misplaced. In Arcadian, the only purpose
of the “weep holes” was to warn of a liner breach. Here, the record establishes that cracks in the
concrete are a standard occurrence and can have several benign causes, including shrinkage and
deflection. Thus, the mere fact that there were cracks is not sufficient to conclude that McCarron had
a heightened awareness that the slabs were in distress. Indeed, McCarron testified that he concluded
that the cracks were caused by a normal deflection of the slabs which occurred when the shoring was
cracked. (Tr. 246). Moreover, there is nothing in the record to contradict McCarron’s testimony that
he investigated the cracks and found nothing sinister about them. While he might not have taken his
employees concerns seriously enough, and should have made a more thorough investigation, the
record fails to establish that he either had a heightened awareness of the problem or exhibited
intentional disregard to employee safety. In particular, I note that McCarron had several relatives on
site, including his brother, brother-in-law, and son. (Tr. 240, 360) Each of these people was exposed
to the risk of death or serious physical harm should the slabs collapse. Under these circumstances,
I cannot conclude that Fabi willfully failed to comply with the standard.
Despite the foregoing, there is no dispute that a collapse of the slabs caused by improperly
installed or maintained shoring could lead to death or serious physical harm. Accordingly, I find that
the Secretary has established a serious violation of 29 C.F.R. § 1926.703(a)(1). Citation 2, Item 1
is therefore affirmed as a serious violation.

                                              24

Penalties
The Secretary proposed a penalty of $70,000.00 for the alleged willful violation set forth in
Citation 2, Item 1, and $7,000.00 for each of the serious violations of Citation 1. These represent the
maximum penalties allowed under the Act. See 29 U.S.C. §§ 666(a) and (b).
When calculating an appropriate penalty, the Act requires that the Commission consider the
gravity of the violation, the employer’s size and history, and its good faith. 29 U.S.C. § 666(j). The
primary consideration when determining an appropriate penalty is the gravity of the violation. Trinity
Indus., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a particular violation
depends upon such matters as the number of employees exposed, the duration of exposure, the
precautions taken against injury, and the likelihood that an injury would result. Valdak Corp., 17
BNA OSHC 1135, 1138 (No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1996). The record amply
demonstrates the likelihood of death or serious physical harm should a slab collapse. Moreover, there
were many employees working in or around the area, each of whom was exposed to the hazard.
Therefore, I find each of the affirmed violations to be of high gravity.
The record also demonstrates that, with over 240 employees, Fabi is a large employer. Also,
Fabi has a history of prior violations. (Tr. 1417). Finally, the record demonstrates a pliant approach
to safety that does not warrant credit for good faith. Fabi failed to follow shop drawings when it was
not convenient to do so, yet slavishly followed them when it was convenient to do so, even though
Fabi knew it was installing rebars in a manner contrary to industry custom and practice. Fabi failed
to take with sufficient seriousness employee concerns about signs of distress in the slab, even though
it knew or should have known that reinforcing steel was not placed properly. Moreover, Fabi
assumed that it was safe to “crack” the shores based on extrapolations of concrete tests made days
after the “cracking” operations. Based on this record, I find that the Secretary properly considered
the statutory factors in its penalty proposals. The penalties for the affirmed items in Citation 1 are
therefore assessed as proposed, as set out below in the Order. With respect to Citation 2, Item 1,
because that item has been affirmed as serious instead of willful, the penalty for that violation has
been assessed in accordance with the other serious violations.

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Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination 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
Based on the foregoing findings of fact and conclusions of law, it is ORDERED that:
1. Citation 1, Item 1, Instances (a) and (b), alleging serious violations of section 5(a)(1) of
the Act, are AFFIRMED, and a total penalty of $7,000.00 is assessed for these two instances.
2. Citation 1, Item 1, Instance (c), alleging a serious violation of section 5(a)(1) of the Act,
is VACATED.
3. Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.703(a)(2), is
VACATED.
4. Citation 1, Item 5, alleging a serious violation of 29 C.F.R. § 1926.703(e)(1), is
AFFIRMED, and a penalty of $7,000.00 is assessed for this item.
5. Citation 2, Item 1, alleging a willful violation of 29 C.F.R. § 1926.703(a)(1), is
AFFIRMED as a serious violation, and a penalty of $7,000.00 is assessed for this item.

                                                  /s/
                                                  Covette Rooney
                                                  Judge, OSHRC

Dated: March 30, 2006
Washington, D.C.

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